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HIGH COURT OF CHHATTISGARH, BILASPUR Order Sheet WPS No. 3036 of 2020 Pitambar Singh Nayak Versus State Of Chhattisgarh and ors. WPS/4455/2020, WPS/6605/2021, WPS/4463/2020, WPS/5083/2020, WPS/3581/2021, WPS/601/2022, WPS/4876/2020, WPS/4799/2021, WPS/4989/2021, WPS/4593/2021, WPS/5388/2020, WPS/2918/2021, WPS/3485/2021, WPS/4814/2020, WPS/3470/2021, WPS/5262/2021 11/02/2022 Proceedings of this matter have been taken up through video conferencing. Shri Manoj Kumar Sinha, Shri CJK Rao, Shri Abdul Wahab Khan, Shri Mohit Kumar, Ms. Varsha Sharma, Shri Anadi Sharma and Shri K.P.Sahu, counsel for respective petitioners. Shri Amrito Das, Addl. Adv. Gen. and Shri Rajkumar Gupta, counsel for respective respondents. List all the matters after 10 weeks enabling learned counsel for the parties to complete the pleadings. Sd/-- ( Sanjay K. Agrawal) Judge Deepti

Pitambar Singh Nayak vs State Of Chhattisgarh on 11 February, 2022

Chattisgarh High Court

1 Crl. P E143/09 IN THE HIGH COURT 0}? KARNATAKA AT SANGALORE DATED THIS THE 27"! DAY OF JANUARY BEFORE _ ' 4' 1 THE HON'BLE MFLJUSTICE A.S.PAC_f..II5i:'1°_5_§?}J:A'.§fVff3v % 3 Z CRIMINAL PETITION 1~:fO. if-41:?)/'3o'%¢)A:aV._': '- BETWEEN 1. Satish M.C., S/0. Channegowda, Aged about 32 yea1*~5_. Rajamma, -. V V W/o. Channegowcilafi . Aged abq.u't«.6{}-- years? .V Cha"n¢€°Wd..9- ? ;:'~I;»._ . . V' S/0. IfZVuric'hx;{2heg'ie§vvd_a;.¢V." Aged about 65~"§,*~ea.rs,_ Gurura_j'«M%'C.. .A .. S/o._Chani1eg'cwVdva, V Agefi 30 years,., V " " s:£%har;§zz4'%'re1,C., V S/'0. Tchzixmegowda. A abbut years. Prakash , S/0. Channegowda, Aged abdut 36 years. . Pusiipa, W/o. Prakash M.C., VA .. about 30 years, (Sri. AND 4; Bangaiore._.V_ it 1' isfi". Majage, HCGP.) 3 Crl. 1?' 1143/09 Petitioners 1. 5, 6 and '7 are Residing at No.7, III Cross, Mohankumar Nagar, Yeshwanthapura, Bangalore. Petitioners 2. 3 and 4 are resigiing at Mayannagowdana Palya, ' " _.. V Mandya District. . PETIT-I0N;E_R';';S_A A.N. Radhakrishna, Adv.) State of Karnataka 2 . By women Police Stat'io'n,.* _ -. Bangalore City. Halsoor gate Represe;1ted=by V _ ' ' State P1i4,b1i§i=P:osee1itor, _' " V' High §E3'o';1rt'€-o:n131e'x__. V ' Banga19r§e_. " » . ° WV'/o. _Satish<." «..C'..,. _ _ i No.'i46.:4*h=Mai1;, Gokufl Stage. ' ' V' V RESPONDENT/S=i<=l==i==§=* Petition is filed under Section 482 _'to quash the proceedings pending 11 VV"'€?r.1'3o.._.'_:§;.!;('739 of "(Women Police Station. Halsoor Gate. V' ' : "B.a;1§alEor_e. Tigis Crimiii_aI_Petition coming on for Admission. this day, _CourtZ,_=made the following: 4 Crl, P £143/09 offence under Sections 498-A, 506 IPC and Sections 3 and 4 of the Dowry Prohibition Act and the subsjéquent chargesheet filed in cc No.11912/2009 pending¢..o'i1i:iVt'it:en:fi2e of the VI Add}. CIVIM, Bangalore, are hereby petition is accordingly disposed of . t JL 3%;

Author: A.S.Pachhapure

Satish M C vs State Of Karnataka By Women Ps on 27 January, 2010

Karnataka High Court

I. T. A. No. 703 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : I. T. A. No. 703 of 2008 Date of Decision : December 22, 2008. Commissioner of Income Tax, Patiala .... Appellant Vs. The Improvement Trust, Patiala .... Respondent (ADARSH KUMAR GOEL) JUDGE December 22, 2008 ( L. N. MITTAL ) monika JUDGE CORAM : HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Ms. Urvashi Dhugga, Standing Counsel for the Revenue. * * * ADARSH KUMAR GOEL, J. (Oral) : 1. Revenue has preferred this appeal under Section 260A of the Income Tax Act, 1961 (for short, "the Act") against the order of the Income Tax Appellate Tribunal, Chandigarh Bench `B', Chandigarh dated 08.05.2008 passed in I.T.A. No.809/Chandi/2007 in the case of Assistant Commissioner of Income Tax Circle, Patiala vs. The Patiala Improvement Trust, Patiala for the Assessment Year 2004-05, proposing to raise following substantial questions of law :- 2. The assessee is an institution registered under Section 12 AA of the Act. It filed its original return for the assessment year 2004-05 on 01.11.2004. Subsequently revised return was filed on 31.03.2006, which was rejected by the Assessing Officer on the ground that the assessee has changed the method of accounting by adopting market price for valuation of closing stock, as against the market price, which was being regularly followed in the earlier assessment years. The CIT (A) allowed the appeal of the assessee. It was held :- 3. The Tribunal upheld the said view. 4. We have heard leaned counsel for the Revenue. 5. It is clear that the revised return was within the prescribed time. The assessee has only made correction by bringing closing stock in consonance with the principle, on which opening stock was valued, so that the income can be correctly arrived at. The view taken by the CIT (A) as well as the Tribunal cannot be held to be perverse. 6. No substantial question of law arises. 7. The appeal is dismissed.

Commissioner Of Income Tax vs The Improvement Trust on 22 December, 2008

Punjab-Haryana High Court

Central Information Commission Room No. 305, 2nd Floor, 'B' Wing, August Kranti Bhavan,  Bhikaji Cama Place, New Delhi­110066 Web: www.cic.gov.in Tel No: 26167931 Case No. CIC/SS/A/2011/000210 Name of Appellant : Mr. Harinder Dhingra Name of Respondent : Export Credit Guarantee Corporation India ORDER The Commission has received an appeal dated 13.1.2011 from Mr. Harinder Dhingra u/s 18 of the RTI Act, 2005, against the Export Credit Guarantee Corporation India Ltd., Mumbai for deemed refusal to his RTI request dated 4.11.2010 and first appeal dated 7.12.2010. 2. In order to avoid multiple proceedings under sections 19 and 18 of the RTI Act, viz., complaints and appeals, this case is remitted to CPIO, Export Credit Guarantee Corporation India Ltd., Mumbai (along with copy of appeal and RTI-request), with the following directions: 3. In case the Appellant is not satisfied with the reply received from CPIO, he, under section 19(1) of the RTI Act, may within the time prescribed, file his first-appeal before the Appellate Authority (AA). 4. On receipt of the first appeal from the petitioner as per the above directions, AA should dispose of the appeal within the period stipulated in the RTI Act. 5. In case the Appellant is not satisfied with the decision of First Appellate Authority, he is at liberty to file a second appeal afresh before the Commission, under section 19(3), along with appeal u/s 18, if any, within the prescribed time limit. CIC/SS/A/2011/000210 The appeal is disposed of with above directions. Sd/- (Sushma Singh) Information Commissioner 8.6.2011 Authenticated true copy: (S.Padmanabha) Under Secretary & Deputy Registrar  Copy to: 1. Mr. Harinder Dhingra, D-4A/7 DLF Phase-1, Gurgaon - 122002. 2. The C.P.I.O., Export Credit Guarantee Corporation India Ltd., Express Towers, 10th Floor, Nariman Point, Mumbai - 400021,. 3. The First Appellate Authority, Ms. Geeta Murlidhar, Executive Director, Export Credit Guarantee Corporation India Ltd., Express Towers, 10th Floor, Nariman Point, Mumbai - 400021,

Mr.Harinder Dhingra vs Ministry Of Corporate Affairs on 8 June, 2011

Central Information Commission

Gujarat High Court Case Information System Print SCA/12251/2008 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 12251 of 2008 ====================================== YASHWANTBHAI NATHABHAI JAGTAP Versus STATE OF GUJARAT & others ====================================== Appearance : MR PRANAV M RAVAL for Petitioner ====================================== CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 06/10/2008 ORAL ORDER Leave to produce on record the order dated 20.4.2008 passed by the Department of Revenue, State of Gujarat, is granted. Amendment to be carried out forthwith. Issue notice returnable on 22.10.2008. (ANANT S. DAVE, J.) (swamy)     Top

Author: Anant S. Dave,&Nbsp;

Appearance : vs Unknown on 6 October, 2008

Gujarat High Court

February 24, 2020 (vikrant) r to (Sandeep Sharma) Judge ::: Downloaded on - 24/02/2020 20:25:32 :::HCHP RSA No. 158 of 2009 . 24.2.2020 Present: Mr. G.D. Verma, Senior Advocate with Mr. B.C. Verma, Advocate, for the appellant. Mr. Bhupender Gupta, Senior Advocate with Ms. Rinki Kashmiri, Advocate, for the respondents. List on 11.3.2020, as jointly prayed for by learned counsel for the parties.

RSA/158/2009 on 24 February, 2020

Himachal Pradesh High Court

JUDGMENT Surinder Singh, J. 1. The point referred to "the wisdom of five" is not a riddle which only Oedipus could have solved. Though the Revision Petition has been referred to us for decision in toto, In essence the question requiring consideration is whether the issuance of a notice under Section 106, T. P. Act, is a must before a landlord can seek eviction of the tenant under the provisions of the East Punjab Urban Rent Restriction Act, 1949 (referred hereinafter as the Rent Act). 2. Facts must precede percipience and judgment would follow without constraint. Vinod Kumar minor, acting through his father as his next friend, (to be referred for brevity as the landlord) launched a petition under Section 13 of the Rent Act against Harbans Singh Azad respondent (referred henceforth as the tenant) for his eviction from a shop situated at Sirsa, District Hissar, on two grounds, namely, (i) the tenant had failed to pay the rent for the premises with effect from December 2, 1965, i. e., for a period of more than thirteen months and (ii) he had kept the shop closed and had not occupied the same for his business for about 17/18 months before filing of the petition. An additional ground had also been taken that the tenant had caused damage to the property and had impaired its value and utility. This ground was not, however, agitated at any stage. The Rent Controller issued the necessary notice of the petition to the tenant for February 10, 1967. It was, however, reported that the tenant had refused to accept service of the notice. Ex parte proceedings were, therefore, ordered against him on the date mentioned above and the matter was adjourned to February 20, 1967 for recording ex parte evidence of the landlord. on the latter date after recording the evidence so produced by the landlord, an order for eviction of the tenant was passed by the Rent Controller. Sometime later, to be precise on April 11, 1967, the tenant moved the Controller with a prayer for setting aside the ex parte order of ejectment and these proceedings culminated with order dated December 18. 1967 by which the Rent Controller set aside his earlier order dated February 20, 1967. He also directed that the ejectment application be put up on January 30, 1968 for further proceedings. on that date, the tenant tendered the arrears of rent and costs etc. (Rs. 581/- in all) to the landlord but the latter refused to accept the tender, claiming that the same had not been made on the "first date of hearing". 3. The parties faced a contest on the following issues (1) Whether the respondent has properly tendered the arrears of rent etc., on the first date of hearing ? (2) Whether it was necessary for the petitioner to serve the notice before filing this application ? If so, its effect. (2-A) Whether the respondent is liable for ejectment on the grounds mentioned in the application ? The Rent Controller found all the above issues against the tenant and ordered his eviction though he allowed fifteen days time to the tenant to vacate the premises. 4. The tenant utilised the right of appeal under Section 15 (b) of the Rent Act and was rewarded with success before ttie Appellate Authority, which set aside the order of the Rent Controller and dismissed the landlord's application for ejectment. While doing so, the Appellate Authority considered the point involved in issue No. 1 and was of the view that the tender of arrears of rent etc. by the tenant on January 30, 1963, was a valid tender because on the date when the ex parte proceedings were set aside, i.e., December 18, 1967, the ejectment application was not before the Rent Controller and hence no proceedings had taken place in the said application on that date. The Appellate Authority reinforced its conclusion with the premises that after the ex parte order had been set aside on December 18, 1967, there was no due service on the tenant and a copy of the ejectment application had not been delivered to him on the basis of which he could have tendered the arrears of rent etc. on that date, In regard to issue No. 2, the Appellate Authority after concluding that the tenancy between the parties had not expired by efflux of time, nor had it been determined by a notice to quit, proceeded to hold that such a contractual tenancy required issue of a notice under Section 106, T. P. Act, before any action for the ejectment of the tenant could be brought. No such notice (having admittedly been issued, the Appellate Authority non-suited the landlord on this ground also. The finding on the last issue No. 2-A, as recorded by the Rent Controller, that the tenant had ceased to occupy the premises without reasonable cause for more than four months before the filing of the application for ejectment was, however, affirmed by the Appellate Authority. In consequence of the findings on other issues, the ejectment application filed by the landlord was dismissed. 5. In the third round of the bout, the landlord approached this Court in Revision, which was heard by a learned single Judge, who made the present reference for consideration of the matter by a larger Bench in view of an important question of law involved therein. As would be noticed from the order of reference, only two points were urged before the learned Judge in chambers. The first contention was that the Appellate Authority had wrongly accepted January 30, 1968 as the first date of hearing instead of December 18, 1967, on which date the ex parte order passed earlier was set aside. The learned Judge left this point undecided, for the reason that he was inclined to refer the petition to a larger Bench for consideration of the second contention that a notice under Section 106, T. P. Act, was not necessary to be issued by the landlord before invoking the provisions of the Rent Act for the ejectment of his tenant. After noticing the decision of a Full Bench of this Court in Bhaiya Ram v. Mahavir Parshad, ILR (1969) 1 Punj and Har 132 : (AIR 1969 Punj & Har 110) (FB) the learned single Judge was of the view that the same required reconsideration and this is how the matter has ambulated to us. 6. Let us first clear the rickety roadblocks to facilitate travel to the coveted destination. So far as the tenant is concerned, his learned counsel sought reconsideration of the concurrent finding of the Rent Controller and the Appellate Authority that the tenant had ceased to occupy the disputed premises for a period of more than four months. The point was presumably not urged before the learned single Judge, nor are we inclined to disturb this pure finding of fact in the present Revision Petition on behalf of the landlord. His learned counsel, Mr. Hira Lal Sibal, has, in the first instance, focussed his attention to the subject-matter of issue No. 1, on which a finding adverse to the landlord has been recorded by the Appellate Authority, holding that the tender made before the Rent Controller on January 30, 1'968, was a valid tender. It is submitted that the Appellate Authority was in error in distinguishing the facts of the present case for extracting the same from the ambit of the law settled even by this Court in the earlier authorities. Reference has been made in this behalf to Giani Hari Singh Jachek v. Smt. Viran Devi, 1964-66 Pun LR 762. A learned single Judge of this Court was seized of the very point under consideration now, as it was also a case where an ex parte order had been set aside. Mahajan, J., while delivering the short judgment, repelled the contention that the first date of hearing would be the date of hearing after re-registration of the case. The learned Judge observed that no fresh notice is required under law on re-registration, when a matter has been restored after it had been dismissed in default. In such a situation, there was no second petition which had been filed and it was only the original petition which had been revived. Mahajan, J., placed reliance upon an earlier decision of this Court in Manohar Lal Chopra v. Bal Raj Arora, (1953) 55 Pun LR 295 : (AIR 1953 Punj 247) in which the same view had been expressed, that the first date of hearing would be the date on which the ex parte order had been set aside. The observations of Soni, J., in the said case, pertinent to the point under consideration are best noticed verbatim: "As I have said before, so far as the payment of the arrears of rent on the first day of hearing was concerned, the matter is concluded by the provisions of Rule 7 of Order 9. If the Court sets aside the ex parte proceedings, it means that the Court accepts the defendant's excuse for not being able to be present at the hearing. The result of the Court's acceptance is that the defendant is put in the same position as if he had actually appeared on the first day of hearing and on the first day of hearing he did bring the money. But even if he did not, if his excuse is accepted that he was misled by the plaintiff and therefore was not able to come, his tender of money to the Court immediately is a proper tender on the first day of hearing." Harbans Singh, J., (as he then was) drew assistance from the above observations while holding in Dwarka Devi v. Hans Raj, 1963-65 Pun LR 705, that the deposit, made on the date on which ex parte order: was set aside, would be treated as if the same was made on the first date of hearing fixed for appearance. The correctness of the view contained in the decisions noticed above cannot be doubted. 7. The Appellate Authority, in the present case, has placed emphasis on the fact that the original ejectment application was not before the Rent Controller on December 18, 1967 and this would confer upon the tenant an option to tender the arrears of rent etc. on the next date fixed in the case, This is not a correct approach to the matter. At the time when the tenant approached the Rent Controller with an application for setting aside the ex parte order, the was obviously aware of the filing of the ejectment application against him and its disposal on an earlier date, though ex parte. If he was desirous of taking the benefit available to a tenant under the Rent Act, he should have tendered the arrears etc. on the very day when the proceedings were restored. There is nothing on the record to show that he made any such attempt on December 18, 1967. Indeed, the tenant may have been heard to plead in this behalf if on that date he had done his duty to tender the rent and other charges before the Rent Controller but the needful had not been done by the Controller in spite of request. Mehar Singh, J., was closeted with a somewhat similar situation in Gulshan Rai v. Devi Dayal, 1965 Cur LJ 886, and drew a conclusion that where the Rent Controller makes an omission to assess costs on the first date of hearing but the tenant does not invite him to do so, to facilitate compliance with law, the tenant cannot have benefit of his failure to invite the Controller to do his duty. This is a correct view of the matter. The statutory benefit available to the tenant under the proviso to Section 13 (2) (i) has a limited scope in that the same affords a convenient last minute escape from the rigours of litigation. "The first date of hearing" cannot be extended merely by a process of reasoning as adopted by the Appellate Authority, whose finding on the point is, therefore, reversed. 8. Mr. Sibal tried to touch upon another criticism in regard to the insufficiency of the tender of Rs. 581/- made by the tenant before the Controller even on January 30, 1968. The argument is that the said amount did not include the rent and interest from December 2, 1965 till the date of tender. No such ground having been urged either before the Controller or the Appellate Authority, Civil Miscellaneous Application No. 6269 of 1971 (Punj) was filed on behalf of the petitioner in the present Revision Petition with a prayer to permit this new ground of attack. An ex parte- order was recorded on September 17, 1971, by Chief Justice Harbans Singh (as he then was) allowing the prayer made in the said Miscellaneous Application, though subject to just exceptions. This objection has now been taken. In view of the fact that the point was never pressed before either of the two Authorities under the Rent Act, we are not inclined to go into the matter of calculations in the present Revision Petition, which is mooted only on questions) of law. 9. The landscape is no longer shrouded in mist. Let us now view the material which has necessitated the present reference, i. e., whether the issue of a notice under Section 106, T. P. Act, is an unavoidable -pre-requisite before a landlord can seek assistance of the Rent Act for the ejectment of his tenant. We must have before us the relevant provision of law which requires interpretation. Section 13 of the East Punjab Urban Rent Restriction Act, 1949, reads as under: "13 (1) A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Act or otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of this section, or in pursuance of an order made under Section 13 of the Punjab Urban Rent Restriction Act, 1947, as subsequently amended. (2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the applicant, is satisfied :-- (i) that the tenant has not paid or tendered the rent due by him in respect of the building or rented land within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement, by the last day of the month next following that for which the rent is payable : Provided that if the tenant on the first hearing of the application for ejectment after due service pays or tenders the arrears of rent and interest at six per cent per annum on such arrears together with the cost of application assessed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent within the time aforesaid. ... ... ... ... ..." The matter received the attention of the Supreme Court a quarter of century ago in Rai Brij Raj Krishna v. S.K. Shaw and Brothers, 1951 SCR 145: (AIR 1951 SC 115). That case arose under the Bihar Rent Act and Fazl Ali, J., speaking for the Bench made the following material observations : "Section 11 is a self-contained section, and it is wholly unnecessary to go outside the Act for determining whether a tenant is liable to be evicted or not, and under what conditions he can be evicted. It clearly provides that a tenant is not liable to be evicted except on certain conditions, and one of the conditions laid down for the eviction of a month to month tenant is non-payment of rent." The Act thus sets up a complete machinery for the investigation of those matters upon which the jurisdiction of the Controller to order eviction of a tenant depends, and it expressly makes his order final and subject only to the decision of the Commissioner. The Act empowers the Controller alone to decide whether or not there is non-payment of rent, and his decision on that question is essential before an order can be passed by him under Section 11. Such being the provisions of the Act, we have to see whether it is at all possible to question the decision of the Controller on a matter which the Act. clearly empowers him to decide." 10. A bare reading of the present Rent Act would show that as in the case of the Bihar Act, it also contains all the necessary provisions for enabling adjudication on the various contentious points which could arise in a dispute between the landlord and tenant in connection with their (relationship as such. Two Division Benches of this Court followed the view taken in regard to the Bihar Act. In Bawa Singh v. Kundan Lal, (1952) 54 Pun LR 358 : (AIR 1952 Punj 422), which was a case under the present Rent Act, it was held that the Act was a complete Code by itself and its provisions superseded the provisions of the T. P. Act. The issue of a notice under Section 106 of the T. P. Act was, therefore, found unnecessary. In the second case, Hem Chand v. Shrimati Sham Devi, ILR (1955) Punj 36, placing reliance upon the observations of the Supreme Court in Rai Brij Rai Krishna, (AIR 1951 SC 115) the Bench once again affirmed the view aforesaid in a case under the Delhi and Ajmer. Merwara Rent Control Act. At the end of the main judgment which was recorded by Khosla, J., Kapur, J., specifically disagreed with the contrary view expressed by the Calcutta High Court in Gurupada Haldar Jiban Krishan Dass v. Arjoondas Goenka, AIR 1949 Cal 61. The matter was once again agitated in the Supreme Court in Bhaiya Punjalal Bhagwanddin v. Dave Bhagwatprasad, Prabhuprasad, AIR 1963 SC 120, but in the judgment, their Lordships abstained from expressing any opinion in regard to the correctness or otherwise of the law' laid down in Hem Chand's case (supra). 11. There appears to be some diversion in the breeze after Bhaiya Punjalal's case, (AIR 1963 SC 120) (supra). In Vora Abbasbhai Alimahomed v. Haji Gulamnabi Haji Safibhai, AIR 1964 SC 1341, it was observed in regard to Clause (1) of Section 12 of the Bombay Rents Control Act, that the said clause applies to a tenant who continues to remain in occupation after the contractual tenancy is determined and it does not grant a right to evict a contractual tenant without determination of the contractual tenancy. This case was followed by another authority from the same pedestal as reported in Mangilal v. Sugan Chand Rathi, AIR 1965 SC 101. The case arose in reference to the provisions of Madhya Pradesh Accommodation Control Act and it was specifically held that the requirements of Section 106 of the T. P. Act, for terminating a lease from month to month necessitated the issue of fifteen days' notice from either the landlord or the tenant and that such a notice was essential before the relationship of landlord and tenant could be brought to end. As a corollary, it was further held that without validly terminating this relationship, the landlord could not obtain possession of the premises by evicting the tenant. In still another case Manujendra Dutt v. Purnedu Prosad Roy Chowdhury, AIR 1967 SC 1419, the view expressed in the two cases mentioned above was reaffirmed by the Supreme Court. 12. In the wake of the disturbed weather, the point as to whether the provisions of the East Punjab Urban Rent Restriction Act abrogated the necessity for issue of a notice under Section 106 of the T. P. Act was mooted before a Division Bench of this Court in Sawaraj Pal v. Janak Raj, (1968) 70 Pun LR 720: (AIR 1969 Punj 26). The Bench after consideration of the various pronouncement of the Supreme Court drew a conclusion that according to the ratio of these judgments, unless there was an express statutory provision abrogating the requirement of service of notice under the T. P. Act, the mere fact that the rights of a landlord for eviction were restricted on account of the Rent Act, did not absolve a landlord from serving the requisite notice. Hardly two months had elapsed after the decision in Sawaraj Pal's case (supra) that the matter once again cropped up before P. C Pandit, J., who felt that there was difference of opinion in two Division Benches of this Court, namely, Bawa Singh's case, (AIR 1952 Punj 422) and Sawara} Pal's case, (AIR 1969 Punj 26). As reported in Bhaiya Ram v. Mahavir Prasad, (1968) 70 Pun LR 897, P. C. Pandit, J., referred the following three points to a Full Bench for decisions:-- "1. Whether f.n ejectment replication under Section 13 of the East Punjab Urban Rent Restriction Act, 1949, can be filed without the prior issue of a notice under Section 106 of the T. P. Act; 2. Whether the objection regarding non-issue of a notice under Section 106 of the T. P. Act, can be waived by the tenant; 3. Whether objection as to the validity of the notice can be waived by a tenant in a case in which a defective notice has been issued." The matter was laid before the Full Bench and a detailed resume of several authorities including those of the Supreme Court, culminated with the verdict in Bhaiya Ram v. Mahavir Prasad, (1968) 70 Pun LR 1011: (AIR 1969 Punj 110) (PB). The material conclusions of the Full Bench have been reproduced by Tuli J., in the present referring order. All these need not be recapitulated but suffice it to say that one of the conclusions was that want of service of notice under Section 106 of T. P. Act continues to be a good defence despite the enforcement of the Rent Act in every case in which such a defence would have been valid and available under the general law of the State, if the Rent Act had not been enacted. It was further held that the Punjab Rent Act had not impliedly repealed or abrogated Section 106 of the T.P. Act or the principles of the said provision in so far as they are applicable in Punjab as principles of equity, justice and good conscience. 13. Sometime before the decision of the Full Bench cf our Court, the same point fell for consideration down South before a Full Bench of the Madras High Court. That Court, in Raval and Co. v. K.G. Ramauhandran, AIR 1967 Mad 5V preferred to follow the earlier view of the two Division Benches of this Court that no notice was necessary to be issued by the landlord for terminating the tenancy of the tenant, on account of the Rent Legislation. 14. In the same year (1967) came the ruling of the Supreme Court, i. e., Manujendra Dutt v. Purnedu Prosad Roy Chowdhury, AIR 1967 SC 1419, wherein the following observations were made: "Rent Acts are not ordinarily intended to interfere with contractual leases and are Acts for the protection of tenants and are consequently restrictive and not enabling, conferring no new right of action but restricting the existing rights either under the contract or under the general law." 15. When the tensility of the conclusions of the Madras Full Bench came for test in the very case, before the Supreme Court, it affirmed the view taken by the Full Bench. The verdict of the Supreme Court in this case is reported in Raval and Co. v. K.G. Ramachandran, AIR 1974 SC 818. It is worthy of note that Alagiriswami, J., made specific reference to the observations made in Manujendra Dutt's case, (AIR 1967 SC 1419), reproduced above, and expressed that the said observations should not be held to apply to all Rent Acts irrespective of the scheme of those Acts and their provisions. In a later decision of the Supreme Court, i.e., Puwada Venkateswara Rao v. Chidamana Venkata Ramana, AIR 1976 SC 869, while dealing with a case under the Andhra Pradesh Building Control Act, 1960, it was held that the said Act is a complete Code, providing procedure for eviction and a prior notice under Section 106 of the T. P. Act terminating the lease, is not necessary before filing a petition for eviction under the Andhra Act. It was also held that the decision of the Supreme Court in Mangilal's case, (AIR 1965 SC 101) had been rightly distinguished by the Andhra High Court. Our attention was also invited to another recent decision of the Supreme Court reported in Rattan Lal v. Vardesh Chander, AIR 1976 SC 588, wherein Krishna Iyer, J., observed, "It follows that even where, under a particular rent control statute, the landlord makes out grounds for eviction, he can institute proceedings in this behalf only if de hors the said grounds he has cause of action under the T. P. Act. However, while discussing the point now under consideration, the learned Judge expressly declared that "if the Rent Control Legislation specifically provides grounds for eviction in supersession, not in supplementation, of what is contained in the T. P. Act, the situation may conceivably be different." It is obvious, therefore, that the bupreme Court has put a final seal in the matter and the proposition that no notice under Section 106 of the T. P. Act is necessary to be issued before a landlord applies for eviction of the tenant under the provisions of the East Punjab Urban Rent Restriction (Act, 1949, is beyond doubt or debate. 16. My Lord, the Chief Justice, in Civil Revision No. 355 of 1976 decided on November 3, 1976: (reported in (1976) 78 Pun LR 980) and Rule N. Mittal, J., in Civil Revision No. 267 of 1976 decided just today = (reported in AIR 1977 Punj 187) have disposed of the point in controversy in accordance with the above-mentioned conclusion. Legal vacillations have rocked the judicial minds for long enough. The scales are now at rest. We do not wish to disturb them again. 17. The Revision Petition is accepted and the order of the Rent Controller directing the eviction of the tenant is restored. We, however, allow to the tenant, two months time from today, to vacate the premises. No costs. B.S. Narula, C.J. 17-A. I have had the benefit of perusing the erudite judgment prepared by my learned brother Surinder Singh, J., and agree with every word of the same. Since, however, I was the author of the judgment of the Full Bench in Bhaiya Ram v. Mahavir Prasad, ILR (1969) 1' Punj and Har 132: (AIR 1969 Punj & Har 110) (FB), I consider it a duty to observe that the said judgment of the Full Bench was given in the light of the judgments of their Lordships of the Supreme Court in the following cases:-- (i) Vora Abbasbhai Alimahomed v. Haji Gulamnabi Haji Safibhai, AIR 1964 SC 1341; (ii) Mangilal v. Sugan Chand Rathi, AIR 1665 SC 101: and (iii) Manujendra Dutt v. Purnedu Prasad Roy Chowdhury, AIR 1967 SC 1419. 18. In view, however, of the subsequent pronouncement of their Lordships in Rava! and Co. v. K.G. Ramachandran, AIR 1974 SC 818, and in Piiwada Ven-kateswara Rao v. Chidamana Venkata Ramana, AIR 1976 SC 869, there appears to be now no escape from reversing the Full Bench judgment of this Court in Bhaiya Ram's case, (AIR 1969 Punj & Har 110) (FB). It is preicsely in this situation that even when sitting in Single Bench while deciding Civil Revision 355 of 1976, Mool Raj Jain v. Jayna Engineering Works, on November 3, 1976: (Reported in (1976) 78 Pun LR 980). I did not follow the Full Bench of this Court which has been impliedly overruled by the Supreme Court partly in Puwada Venkateswara Rao v. Chidamana Venkata Ramana (supra) and partly in Rattan Lal v. Vardesh Chander, AIR 1976 SC 588. It is with these observations that I agree that this revision petition should be accepted and the order of the Rent Controller, directing the eviction of the tenant-respondent be restored allowing him two months' time to vacate, but leaving the parties to bear their own costs.

Author: S Singh

Vinod Kumar vs Harbans Singh Azad on 18 November, 1976

Punjab-Haryana High Court

Court No. - 28 Case :- WRIT -- C No. -- 30389 of 2008 Petitioner :- Ram Singh Respondent :- State Of U.P. And OthersPetitioner Counsel :- Sanjai Singh Respondent Counsel :- C.S.C. Hon'ble Saniav Misra.J. Passed over on the illness slip of Sri Sanjai Singh, learned counsel for the petitioner. Order Date :- 13.8.2010 Lbm/--

Ram Singh vs State Of U.P. And Others on 13 August, 2010

Allahabad High Court

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08/03/2002 CORAM: THE HON'BLE MR. JUSTICE K. SAMPATH W.P.No. 1879 Of 2002 and W.P.M.P.No. 2600 of 2002 and W.V.M.P.No. 106 of 2002 U. Gunasekaran ... Petitioner Vs. The Executive Director, Tamil Nadu Science and Technology Centre, Guindy, Chennai 600 0025. ... Respondent !For Petitioner in W.P. And for Respondent in WVMP: ... Mr.M.K. Hidayathullah For Respondent in W.P. & Petitioner in MVMP: ... Mr.Vijaynarayan This writ petition is filed under Article 226 of the Constitution for the issue of a writ of certiorarified mandamus to call for the records of the respondent in Memo No.36/E1/2002 dated 4-1-2002, quash the same as illegal and unlawful and consequently direct the respondent to reinstate the petitioner with continuity of service and other benefits. :ORDER Index: Yes 8-3-2002 IGP To The Executive Director, Tamil Nadu Science and Technology Centre, Guindy, Chennai 600 025. K. SAMPATH, J. W.P.No.1879/2002 & W.P.M.P.No.2600/2002 and W.V.M.P.No.106/2002 8-3-2002  By consent the main writ petition itself was taken up and arguments heard. 2. The case of the petitioner is as follows: He joined the office of the respondent on 9.11.1990 on a temporary basis and his services were regularised with effect from 2-7-1994. He has been designated as Scientific Assistant. He has been very sincere and dutiful in discharging his job. There was no allegation of any insubordination or misconduct against him. In 1998 some disciplinary proceedings were initiated against one Rajaboopathy. The petitioner was called upon to give statement in the enquiry proceedings. He gave his statement, which was true. However, since he did not comply with the extraneous order of the respondent, the latter developed animosity with him and he was found fault with whatever act he was doing. He was abused and scolded in a most derogatory and filthy language. The petitioner's wife fell sick and was operated for hernia. He has two sons and a daughter. The petitioner was put to great hardship because of the ill-health of his wife and he had to do all the routine work both in taking care of his children and his ailing wife. On 3-1-2002 the petitioner gave a letter to the respondent seeking permission to have his lunch outside in a hotel. He sought for lunch break of 30 minutes. The respondent refused permission. He also directed the petitioner to go to Villupuram on 4-1-2002 to conduct the mobile exhibition for three days. The petitioner expressed his inability to go to Villupuram since his wife was bed-ridden. The respondent took serious note of this and immediately on 4-1-2002 he passed orders of suspension and it was approved under sub rule (e) of Rule 17 of the Tamil Nadu Civil Service (Classification, Control and Appeals) Rules, vide Memo No.36/E1/2002. Challenging this, the present writ petition has been filed. 3. The order impugned states that the petitioner is suspended with effect from 4-1-2002 afternoon, pending enquiry on his misbehaviour in the Chamber of the Executive Director and disobedience as per sub rule (e) of Rule 17 of the Tamil Nadu Civil Service (Classification, Control and appeals) Rules until further orders. The writ petition was admitted and interim stay for a period of four weeks was granted on 30-1-2002. 4. A counter has been filed by the first respondent denying the various allegations and further stating that the power has been exercised with bona fide intention as per the Rules and the writ petition is not maintainable. On merits the counter states as follows: There is a Museo Bus with 24 built-in exhibits with Portable Planetarium which is travelling all parts of Tamil Nadu, particularly schools and colleges in the rural places for popularising science and technology concepts among the general public, particularly students. On rotation basis, the scientific and technical staff working in the Centre are posted to look after the duty. Accordingly, one Manoharan was posted in the Museo Bus for discharging duties at Elumalai Polytechnic from 4-1-2002 to 6-1-2002 and from 7-1-2002 to 9-1-2002. Stating that his mother-in-law was seriously ill he requested the Executive Director to relieve him by posting a substitute in his place. The petitioner was posted to look after the duties of Elumalai Polytechnic, Villupuram, in the Executive Director's Memo No.457/P1/2001, dated 4 -1-2002. Instead of attending to the duty, the petitioner rushed into the Executive Director's Chamber at 5.20 p.m., when officers were discussing about the financial and other policy matters. The Superintendent of Accounts Section was also waiting to get the signature of the Executive Director in the bills and cheques to be disbursed immediately. Without getting the permission of the Executive Director, he pulled the chair and sat on it and shouted at the Executive Director that he would not attend his duty. He further told the Executive Director that his wife was ill and he could not go to Villupuram. He disturbed the work in the Executive Director's Chambers for sometime. He behaved in a more indisciplined manner unbecoming of a responsible staff member. At the time of his misbehaviour, four staff members were also present and they had also given complaints against him. Due to his misbehaviour the petitioner was suspended from duty and the order was sent to him by registered post. On 6-1-2002 the suspension order was also handed over to the petitioner in person. It was not true to say that the respondent developed animosity with the petitioner or that he was harassed and put to great hardship. It was equally false to say that the respondent abused powers and scolded the petitioner in derogatory or filthy language. The permission to have lunch outside was rejected because the respondent being a public oriented enterprise, there were equipment worth about Rs.30 lakhs in the custody of the petitioner and if he left the premises, there was a possibility that the equipment might be stolen or damaged. In fact, on one past occasion when the petitioner left the premises, a transistor worth approximately Rs.700/- was stolen. The petitioner had committed grave misconducts and the charges are likely to be framed shortly. A domestic enquiry is also likely to be conducted. The suspension order had been passed properly and no exception can be taken to this. 5. A reply has been filed setting out the events that had happened subsequent to the petitioner obtaining the interim order, besides denying the case set out in the counter and reiterating the contentions in the main writ petition. It is further stated in the reply that he obtained the copy of the order from this Court on 4.2.2002 and furnished a copy of the same to the respondent. Immediately on receipt of the order from this Court, the respondent called the petitioner and informed him that he would revoke the order of suspension provided the petitioner withdrew the writ petition. On 6-2-2002 the petitioner sent a letter to the Counsel for the respondent through his Counsel narrating the above facts and sought for amicable settlement in the matter. In fact, on 6-2-2002 he met the respondent accompanied by his uncle Mr. Rangaraj. On that day the respondent started abusing the petitioner. These facts have been suppressed in the counter. The incumbent Officer is bent on removing the petitioner from service on some pretext or the other. 6. This is a case of suspension pending departmental enquiry. From the narration, I do not find any mala fides in the order of suspension passed by the respondent. I had occasion to consider the question regarding stay of suspension in W.P.No.4724/98 and W.M.P.Nos.7312 and 7313 of 1998 and held that there was no scope for interference by this Court under Article 226 of the Constitution when serious allegations of misconduct are made against the aggrieved party. 7. In STATE OF ORISSA VS. BIMAL KUMAR MOHANTY (AIR 1997 SC 2290 = 1 994(4) SCC 126) the Supreme Court referred to a number of earlier decisions and ultimately held as follows: "It is thus settled law that normally when an appointing authority or the disciplinary authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and commission, the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of the mind by disciplinary authority. Appointing authority or disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. The Court or the Tribunal must consider each case on its own facts and no general law could be laid down in that behalf. Suspension is not a punishment but is only one of forbidding or disabling an employee to discharge the duties of office or post held by him. In other words it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even pending enquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the enquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or enquiry, etc. But as stated earlier, each case must be considered depending on the nature of the allegations, gravity of the situation and the indelible impact it creates on the service for the continuance of the delinquent employee in a service pending enquiry or contemplated enquiry or investigation. It would be another thing if the action is actuated by mala fides, arbitrary or for ulterior purpose. The suspension must be a step in aid to the ultimate result of the investigation or enquiry. The authority also should keep in mind public interest of the impact of the delinquent's continuance in office while facing departmental enquiry or trial of a criminal charge." To the same effect is the decision of the Supreme Court in SECRETARY TO GOVERNMENT, PROHIBITION AND EXCISE DEPARTMENT VS. SRINIVASAN (199 6-3 SCC 157). 8. In the latest decision of the Supreme Court NEW INDIA ASSURANCE CO. LTD. VS. S.M.I. KAZIM AND OTHERS (2001-1 LLJ 1700 ) it has been held that, "an order of suspension during the pendency of a departmental inquiry is ordinarily not interfered with by the High Court in exercise of its jurisdiction under Article 226 of the Constitution until and unless the Court comes to a conclusion that the order has been mala fidely passed; or that the appropriate authority has not passed the order of suspension." 9. In as much as no mala fides have been shown in this matter, it is not possible to invoke Article 226 of the Constitution. The writ petition fails and the same is dismissed. The connected miscellaneous petitions are also dismissed. There will be no order as to costs. However, there will be a direction to the respondent to complete the enquiry within a period of three months from the date of receipt or production of a copy of the order in the writ petition.

U. Gunasekaran vs The Executive Director on 8 March, 2002

Madras High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10977 of 2010 SMT.BHUWANESHWARI DEVI Versus THE STATE OF BIHAR & ORS ----------- AMIN/ (Ajay Kumar Tripathi, J.) 2 14/03/2011 Learned counsel for the State is directed to produce the entire original record within four weeks in relation to letter No. 847 dated 10.101983 issued by the Director, Secondary Education-cum-Additional Secretary, Government of Bihar, Patna based on whose letter the appointment of the petitioner came to be made. Letter categorically says that this communication is based on a decision of the State in the circumstances stated therein. Learned counsel for the State will also have liberty to file counter affidavit. Failure to produce the record will compel the Court to draw its own inference in the matter. Let this matter come up after four weeks.

Smt.Bhuwaneshwari Devi vs The State Of Bihar &Amp; Ors on 14 March, 2011

Patna High Court - Orders

Gujarat High Court Case Information System Print SA/86/1988 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL No. 86 of 1988 ========================================================= RABARI CHEHRA KHODA DIED & 2 - Appellant(s) Versus RABARI AMARBEN D/O JALA DEVRAJ & 5 - Defendant(s) ========================================================= Appearance : NOTICE NOT RECD BACK for Appellant(s) : 1,None for Appellant(s) : None for Petitioner No(s).: for Appellant(s) : 2,NOTICE SERVED for Appellant(s) : 2.2.1, 2.2.2, 2.2.3,2.2.4 - 3. NOTICE SERVED for Defendant(s) : 1 - 6. ========================================================= CORAM : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 18/02/2011 ORAL ORDER It appears from the record of the case that earlier learned advocate Mr S.K Jhaveri was appearing for the appellants. The Court issued notice to the appellants on account of death of Mr Jhaveri. The notice issued to the appellants Nos 2/1 to 2/4 and appellant no. 3 are duly served. It also appears that appellant No. 1 Rabari Kurshi Chehra died during the pendency of the litigation on 27th January 1982. It also appears that respondents though served have chosen not to appear and contest the Second Appeal. In view of above, it appears that the appellants are not interested in prosecuting the Second Appeal. Therefore the Second Appeal stands dismissed for default. Interim relief granted earlier stands vacated with no order as to costs. (B.N. Mehta,J.) mary//     Top

Author: Bankim.N.Mehta,

Rabari vs Rabari on 29 September, 2011

Gujarat High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3799 of 2009 DILENDRA SAH, SON OF SHRI KANAK LAL SAH, RESIDENT OF TULSIYAHI, P.O. RAHUA, P.S. BIHRA, DISTRICT - SAHARSA. ............ PETITIONER. Versus 1. THE STATE OF BIHAR. 2. THE SECRETARY, DEPARTMENT OF EDUCATION, GOVT. OF BIHAR, NEW SECRETARIATE, PATNA. 3. THE DIRECTOR, DEPARTMENT OF PRIMARY EDUCATION, GOVT. OF BIHAR, NEW SECRETARIATE, PATNA. 4. THE DISTRICT SUPERINTENDENT OF EDUCATION, SAHARSA. ........... RESPONDENTS. ----------- DKS/ (Mridula Mishra, J. ) 02/ 07.07.2011 Petitioner is working as an Assistant teacher in Non-Govt. Middle School, Tulsiyahi, Block - Kahra in the district of Saharsa. Giving reference to the order passed in C.W.J.C. No. 5278 of 2004 counsel for the petitioner prays that the case of this petitioner stands on similar footing as Ravi Shankar, who was writ petitioner in C.W.J.C. No. 5278 of 2004. This writ application was disposed of analogous with several other cases and the High Court disposed of all these writ applications directing the State Govt. to constitute a Committee, which will examine the cases of teachers working in Non-Govt. Elementary Schools and thus entitled for cost of living allowance as per the government decision. The State of Bihar has decided to 2 grant cost of living allowance to the teachers of such Non-governmental recognized schools in which students have been imparted education up to Class VII. The order regarding giving of cost of living allowance to any Assistant teacher working in such schools can be allowed only after scrutinizing their claim in the light of the relevant provisions, rules, regulations and circulars of the Govt. as well as considering the factual aspect of the matter of this case. Accordingly, this application is being disposed of. The petitioner can also represent his case before the same Committee, which has been constituted by the State of Bihar in the light of the directions issued by the High Court in C.W.J.C. No. 5278 of 2004 and analogous cases. In case petitioner files his representation before the Committee constituted for this purpose, his case will also be considered in accordance with the directions of the High Court as well as observing the rules/regulations, circulars in this regard.

Dilendra Sah vs The State Of Bihar & Ors on 7 July, 2011

Patna High Court - Orders

[Complete Act]

Central Government Act

Gujarat High Court Case Information System Print SCA/4807/2011 3/ 3 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 4807 of 2011 ========================================================= MAHETA SUKHDEVPRASAD REVASHANKAR - Petitioner(s) Versus STATE OF GUJARAT & 4 - Respondent(s) ========================================================= Appearance : MR AG JOSHI for Petitioner(s) : 1,MR DIPAK H SINDHI for Petitioner(s) : 1, Mr Anand L. Sharma, AGP for Respondent(s) : 1, None for Respondent(s) : 2 - 5. ========================================================= CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 27/04/2011 ORAL ORDERHeard learned Advocate Mr. Dipak H. Sindhi for petitioner and Mr. Anand Sharma, learned AGP for respondent State. As per para 8(B) of this petition, petitioner is praying to direct respondent NO.2 to 4 to comply with order dated 13.4.2009 passed by Respondent NO. 5 i.e. Controlling Authority under Payment of Gratuity Act, Himmatnagar in Gratuity Case NO. 31 of 2008 and to direct respondent no.2 to 4 to pay gratuity amount of Rs.2,00,340.00 with 10% simple interest from 26.4.2005 to petitioner. Order was passed by Controlling Authority, Himmatnagar in Gratuity Case NO.31 of 2008 dated 13.4.2009 in favour of present petitioner with a direction to Sathamba Gram Panchayat to pay amount of Gratuity to petitioner with 10 per cent simple interest with effect from 26.4.2005. As said amount has not been paid by Sathamba Gram Panchayat, under section 8 of Payment of Gratuity Act, 1972, recovery certificate has been issued by Controlling Authority in favour of District Development Officer, Sabarkantha District Panchayat, Himatnagar dated 21.12.2009. Learned Advocate Mr. Sindhi for petitioner has submitted that though more than one year has passed, effective steps have not been taken by District Development Officer, Sabarkantha District Panchayat, Himatnagar to recover amount of gratuity from Sathamba Gram Panchayat. It is further submitted by learned advocate Mr. Sindhi for petitioner that order passed by Controlling Authority has not been challenged by Sathamba Gram Panchayat before appellate authority and no stay is operating against order passed by Controlling Authority dated 13.4.2009. He also submitted that inspite of serious and sincere efforts made by petitioner, no recovery is effected by District Development Officer, Sabarkantha District Panchayat, Himatnagar to recover amount of gratuity from Sathamba Gram Panchayat as per recovery certificate issued by Controlling Authority, Himmatngar dated 21.12.2009. In light of this back ground and considering fact that workman petitioner has retired from service and entitled for amount of gratuity with effect from 25.4.2005, from that date, about more than six years have passed and yet workman has remained without amount of gratuity though order has been passed by Controlling Authority. Therefore, in light of this back ground, it is directed to District Development Officer, Sabarkantha District Panchayat, Himatnagar to execute recovery certificate issued by Controlling Authority, Himmatnagar dated 21.12.2009 for recovering amount of gratuity as ordered by Controlling Authority from Sathamba Gram Panchayat within period of two months from date of receipt of copy of present order and after recovering said amount of gratuity from Sathamba Gram Panchayat, it is directed to District Development Officer, Sabarkantha District Panchayat, Himatnagar to deposit said amount before Controlling Authority, Himmatnagar and thereafter to immediately communicate about such recovery made from Sathamba Gram Panchayat to petitioner. In view of these observations and directions, this petition is disposed of by this Court without expressing any opinion on merits. DS Permitted. (H.K. Rathod,J.) Vyas     Top

Author: H.K.Rathod,&Nbsp;

Maheta vs State on 27 April, 2011

Gujarat High Court

JUDGMENT 1. This second appeal preferred by the Life Insurance Corporation of India is confined only to rate of interest payable after filing of the suit in a mortgage deed. When the Corporation paid contractual rate of interest 15% per annum i.e., contractual rate of 12 1/2% plus 2 1/2% default interest from the date of suit till the date of payment. But the Courts below have granted only 6% interest per annum from the date of suit till the date of payment. 2. The question in this second appeal is therefore, whether the Court has got power under Order 34 Rule 11 of the CPC and what is the scope of interaction of under Order 34, Rule 11 of the CPC. 3. Order 34, Rule 11 gives a certain amount of discretion to the Court so far as interest pendente lite and subsequent interest is concerned and it is no longer absolutely obligatory on the Courts to decree interest at the contractual rates upto the date of redemption in all circumstances even if there is no question of the rate being penal, excessive or substantially unfair. (As held by the Supreme Court in Soli Pestonji Majoo v Gangadhar Khemka). In another ruling , it is held as under.- "Section 34 and Order 34, Rule 11 Court has discretion to reduce the contractual rate of interest to 6% from the date of suit till the date of realisation, even in mortgage suit". In another ruling reported in Divisional Manager, LIC of India v Bhagavathy Amma and Others, it is held as under: "Mortgagee can claim interest at stipulated rate upto date of suit unless it is penal or excessive. It is absolutely within discretion of Court whether to allow contractual rate from the date of suit to date fixed for redemption". 3-A. On the question of interest under Order 34, Rule 11 of the CPC the Full Bench of Bombay High Court in Union Bank of India v Dalpat Gaurishankar Upadyay, held.- "Under Section 34 of the CPC, the Court while decreeing the suit will adjudge, (i) the principal sum and (ii) any interest on such principal sum prior to the date of institution of the suit. Both amounts adjudged by the Court by way of "Principal Sum" as well as interest thereon for the period prior to the institution of the suit together may be termed as "aggregate amount adjudged" as payable on the date of the suit. But interest under Section 34 not payable only on the principal sum adjudged. No interest is payable on the amount of interest adjudged on such principal sum. Interest, whether simple or compound will remain 'interest' for the purpose of Section 34 and shall never merge in the principal. The legislature while using the expression "in addition to any interest adjudged on such principal for any period of the institution of the suit" in Section 34 in contradistinction to the expression "principal sum" has not made any distinction between the interest computed by way of simple interest or compound interest. Hence, the "Principal sum adjudged" used in Section 34 of the CPC means the original amount lent without the addition thereto of any interest whatsoever. This will be the position notwithstanding any agreement between the parties or any prevailing banking or trade practice to the contrary". A Division Bench of Punjab and Haryana High Court in Jagdish Chander v Punjab National Bank, has held.- "Interest upto the date of suit is a matter of substantive law and the section does not refer to payment of interest under the first head. It applies only to 2nd and 3rd heads. Interest pendente Lite is one of the procedure within the discretion of the Court, Interest on the principal amount adjudged from the date of the decree to the date of payment cannot be allowed at a rate higher than 6% per annum under the first proviso to Section 34 of the Code. Future interest exceeding 6% per annum can be granted if the liability adjudged has arisen out of a commercial transaction. The executing Court can examine if the decree was passed by the Court in conformity with the first proviso to Section 34 to the Code". It is further held that under proviso to Section 34 so long as the loan is not a commercial loan and only an agricultural loan, interest exceeding 6% per annum is not proper. In N.M. Veerappa v Canara Bank , The Supreme Court while referring to Section 21A of Banking Regulation Act, observed as follows.- "Section 21A of the Banking Regulation Act, 1949 does not come to the aid of Banks vis-a-vis, Order 34, Rule 11 of the CPC, the question whether for the period during the pendency of mortgage suits in Courts, the Court's discretion should continue or whether it should be fettered and if so, to what extent and as to what rate of interest and whether there should be any distinction between different kinds of debtors, these are all matters of policy for the legislature and it will be for parliament to lay down its policies and bring forward such legislation as it may deem fit in accordance with the provision of the Constitution of India". "Section 34 of the Civil Procedure Code applies to simple monies decrees and payment of interest pending such suits. Order 34, Rule 11 of the CPC deals with mortgage suits and payment of interest. It is obvious that so far as mortgage suits are concerned, the special provision in Order 34, Rule 11 alone is applicable and not Section 34". "But after 1929, as new Rule 11 was introduced, which used the words, "the Court may order payment of interest". The new rule was explained by the Federal Court in Jaigobind Singh v Lachmi Narain Ram, and it was held that this provision gave a certain amount of discretion to the Court so far as interest after date of suit was concerned and it was no longer obligatory after date of suit was concerned and it was no longer obligatory after the 1929 amendment on the Courts to direct interest at contractual rates upto the date of redemption in all circumstances even if there is no question of the rate being penal excessive or substantially unfair within the meaning of the Usurious Loans Act, 1918. Approving the above observation of the Federal Court, this Court held on facts, that the mortgagee should be granted interest on the principal sum at the contractual rate till the date of suit and only simple interest at 6% p.a. On the principal sum at the contractual rate till date of the suit and only simple interest at 6% p.a. on the principal sum adjudged from the date of suit till date of preliminary decree and again at same 6% p.a. from the date of preliminary decree till date of realisation". "The Court has also power to award from date of suit under Order 34, Rule 11(a)(iii) a rate of interest on costs, charges and expenses as per the contract rate or failing such rate, at a rate not exceeding 6%. This is the position of the discretionary power of the Court, from date of suit upto date fixed in the preliminary decree as the date for payment". Ultimately, the Supreme Court has granted interest at the rate of 6% per annum from the date of suit till the date of realisation. In the Division Bench of this Court to which I was a party in State Bank of India v M/s. Bangalore Sheet Metal Associates and Others, it was held.- "On going through the above agreement, though there is provision for calculating interest at quarterly rests, we do not find any provision whereby the defaulter had agreed to treat the interest also as part of the principal in case there is default in payment of interest. Such provision is completely absent in the agreement. In that view of the matter, by virtue of Order 34, Rule 11 and following the decision referred to above, we are of the opinion that the plaintiff is entitled to interest only on the principle amount from the date of suit and not on the whole amount claimed in the plaint or decreed by the Trial Court. Accordingly, the Trial Court was right in restricting the interest from the date of suit on the principal amount alone and accordingly we do not find any ground to interfere with the decree passed by the Trial Court". 4. Another Division Bench of this Court in Bank of India v Karnam Ranga Rao, has held as follows: "The Courts cannot reopen any account maintained by Banks relating to transaction with its customers on the ground that the rate of interest charged, in the opinion of Courts, is excessive or unreasonable, Section 21A of the Banking Regulation Act is a restraint on such power of Courts. However, in any case if it is proved that the interest charged by Banks on loans advanced is not in conformity with the rate prescribed by the Reserve Bank, then the Court disallow such excess interest and give relief to the party notwithstanding the provisions of Section 21A. Banks are bound to follow the directives or circulars issued by the Reserve Bank prescribing the structure of interest to be charged on loans and any interest charged by the Banks in excess of the prescribed limit would be illegal and void. Banks cannot charge compound interest with quarterly rests on agricultural advances. (ii) The circulars/directives of the Reserve Bank direct that agricultural advances should not be treated on par with the commercial loans in the matter of application of the system of compounding interest. The farmers do not have any regular source of income other than sale proceeds of their crops is an acknowledged fact. They get income generally only once a year. . . They are, therefore, not in a position to pay interest at usual fixed intervals like monthly, quarterly and half yearly. Banks should not compound interest on current dues. Banks should not also charge interest with monthly, quarterly or half yearly rests on overdue loans. Perhaps, it may not be illegal to charge interest with yearly rests". In the above case the Bench has held that the Court was justified in reopening the interest charged from the date of loan and allowed interest only at the Reserve Bank rate of 10%, however not compound but only a simple. 5. The resultant effect of all the above dicta goes to establish.-- (i) If the loan is not of commercial transaction, then notwithstanding Section 21A of the Banking Regulation Act, the interest has to be charged by the Banks at the rate prescribed by the Reserve Bank of India circular. But simple interest till the date of suit and subsequently if it be the mortgage, the provision of Order 34 will apply. I am of the view that Court has discretion to award interest under Order 34, Rule 11. The Courts below have granted only 6% p.a. interest by exercising its discretion in favour of the defendants. 6. The Life Insurance Corporation of India, is a public oriented organisation which is created for the purpose of serving the general public. In fact the money that is lent at comprehensively lower rate of interest is from and out of the money collected from the policy holders of the LIC. Inasmuch as the public money involved, I feel that the discretion of the Court must be held to be respected and complied with in the interest of the public at large. In this view, I direct that the interest payable in this particular case wherein the money involved is the money belonging to Life Insurance Corporation of India, shall be 12 1/2% p.a. simple interest and the claim of penal interest is disallowed. 7. In this view, the second appeal is allowed modifying the rate of interest at 12 1/2% subsequent to the suit instead of 6% p.a. granted by the Courts below. No costs.

Life Insurance Corporation Of ... vs Smt. Vatsala Vithalrao ... on 17 August, 1998

Karnataka High Court

CENTRAL INFORMATION COMMISSION Room No. 308, B-Wing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi-110066 File No. CIC/LS/A/2009/001195 Appellant : Shri Gurmeet Singh Public Authority : D.D.A. Date of hearing : 15.1.2010 Date of Decision : 15.1.2010 Facts :- By his letter of 9.4.2009, the appellant had sought information from Deputy Director(NL)-I(Land) on the following three paras :- 2. Deputy Director(NL)-1 had forwarded the application to Commissioner(LD) for appropriate action. However, the appellant did not receive any information from Commissioner(LD) and, therefore, has filed the present appeal. 3. Heard on 15.01.2010. Appellant present. Nobody has appeared for DDA. This is viewed adversely. During the hearing, the appellant does not press for information in respect of paras 1 & 2 but insists on information on para 3 above. DECISION 4. In view of the above, Shri Yashpal Garg, Director(CL) is hereby directed to provide requisite information to the appellant in 04 weeks time. 5. A copy of the minutes of the meeting held on 11.4.2007 under the chairmanship of Principal Secretary(L&B) of the Government of NCT of Delhi, may be enclosed for ready reference. Sd/- (M.L. Sharma) Central Information Commissioner Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges, prescribed under the Act, to the CPIO of this Commission. (K.L. Das) Assistant Registrar Address of parties :- 1. Shri Gurmeet Singh, 8/27-A, Ist Floor, Moti Nagar, New Delhi-15. 2. Shri Yashpal Garg, Director(CL), DDA, Vikas Sadan, INA, New Delhi-110023.

Shri Gurmeet Singh vs D.D.A. on 15 January, 2010

Central Information Commission

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.5729 OF 2008 (Arising out of SLP(C)No.3378 of 2006) VINOD KUMAR ... APPELLANT VS. M/S. SINGMALON EQUIPMENT PVT. LTD. & ORS. ... RESPONDENTS WITH CIVIL APPEAL NOS.5730-5731 OF 2008 (ARISING OUT OF SLP(C) NOS.14366-14367 OF 2007) O R D E R Delay condoned. Leave granted. Heard learned counsel for the parties. For convenience, we will refer to the parties by their rank in the first matter. Application for deleting the name of the deceased second respondent in CA No.5729/2008 is allowed as his LRs (respondents 3 to 5) are already on record. 2. These appeals relate to a dispute between the appellant (a shareholder and director who holds 40% of shares in the first respondent company) and the other share holders (respondents 2 to 5 - appellant's brother  2 and his family) and directors of the said company who hold 60% of the shares. In the year 1998, the appellant filed a petition under section 397 and 398 of the Companies Act, 1956, alleging oppression, and mismanagement. By orders dated 20.8.1999, 3.11.1999 and 1.5.2000, the Company Law Board (`Board' for short) gave an option to the appellant to sell his shares to respondents 2 to 5 Group at a price fixed by an independent valuer. On exercise of the option by the appellant, M/s Price Waterhouse Coopers were appointed as the valuer for determining the fair value of shares, based on the balance-sheet as on 31.3.1998. The valuer submitted a Report on 13.12.2001 valuing the shares at Rs.2044/- per share. On objections by both, the Board directed fresh valuation. The valuer reiterated its earlier valuation. Thereafter, the Board by its order dated 05.05.2003, accepted the valuation and held that the second respondent group will purchase the shares held by the appellant-Vinod Kumar at Rs.2044/- per share. As the appellant held 7,420 equity shares of Rs.100 each the Board arrived at the amount payable for the shares as Rs.1,51,66,480/-. It also directed that the payment should be made to the appellant positively by 31.7.2003. The Board directed the first respondent company to pay the arrears of salary/perquisites to the appellant for the period upto 31.3.2002. That order of the Board was  3 challenged by both the parties before the High Court. The appellant did not receive any payment either towards value of shares or towards salary and perquisites. 3. The High Court disposed of the appeals by common order dated 16.06.2005. It set aside the valuation on the ground of bias. It directed the revaluation as on 31.3.2005. It held that appellant is entitled to remuneration and perquisites till date of valuation of shares and payment thereof. 4. Not being satisfied with the said order dated 16.6.2005 of the High Court, both sides have filed these appeals by special leave. When the matter came up today learned counsel for the appellant submitted that there has been complete change in the circumstances after the appeals were filed as the respondents 2 to 5 Group in control of the first respondent company had virtually sold all the movable assets. He therefore submitted that the grounds that were urged by the appellant in support of his appeal to contend that the date of valuation should not have been shifted from 31.3.1998 to 31.3.2005 no longer survived and it is therefore necessary that relief should be moulded by taking note of all the subsequent events and the situation as it exists today. He submitted that all  4 acts of the respondents 2 to 5 group, which was referred to by him as acts of oppression and mismanagement and all acts subsequent to his petition should be considered in the correct perspective for grant of relief. The appellant has also filed an application (IA No.2/2007) to change the date of valuation to the current date, for release of salary and perquisites and for declaration of certain Board resolutions as null and void. 5. The fact that there is a change in circumstances is not disputed by the respondents. The learned counsel for the respondents (majority group holding 60% shares) however submits that any change in circumstances is due to passage of time, natural course of events and the decisions taken by the Board of Directors in the usual course of business and the appellant can have no grievance in the matter. He however stated that the respondents have no objection for re-examination of the entire matter by the Board. 6. In view of the changed circumstances and in view of the submission of the appellant that the grounds urged by him for challenging the alteration of date of valuation as 31.3.2005 no longer exists, and the challenge to the order of the Board and the order of the High Court by both  5 parties, we consider it appropriate to set aside the order of the Company Law Board dated 5.5.2003 and the order of the High Court dated 16.6.2005 and remand the matter to the Board for reconsideration and fresh appropriate decision by taking note of all events which have taken place till now and the facts and circumstances as they exist today, in accordance with law. The appeals of both sides are allowed in part accordingly, leaving open all contentions. All pending applications stand disposed of. 7. The appellant is at liberty to raise the issue of salary and perquisites payable to the appellant from 1.10.1999, also before the Board. As the matter has been pending for a considerable time and the very pendency has led to the change of the circumstances, we request the Company Law Board to dispose of the matter expeditiously. Both the parties agree to appear before the Company Law Board without further notice on 13.10.2008 and take further order from the Board. ............................J. (R.V. RAVEENDRAN) ............................J. (LOKESHWAR SINGH PANTA) NEW DELHI, SEPTEMBER 17, 2008.

Vinod Kumar vs M/S. Singmalon Equipment Pvt. ... on 17 September, 2008

Supreme Court of India

Heading No. Description of Goods 84.14 Air or vaccum pumps, air or other gas compressors and fans; ventilating or recycling hoods incorporating a fan, whether or not fitted with filters. Heading No. Description of Goods 84.15 Air Conditioning machines,comprising a motor-driven fan and elements for changing the temperature and humidity, including those machines in which the humidity cannot be separately regulated. ORDER Lajja Ram, Member (T) 1. This is an appeal filed by M/s. Keyar Industries, Madras being aggrieved with the Order-in-Appeal dated 13-1-1987 passed by the Collector of Central Excise (Appeals), Madras. 2. The matter relates to the classification of the goods described as Air Handling Unit (AHU). The appellants have sought to classify the AHU under Heading No. 84.14 of the Schedule to the, Central Excise Tariff Act, 1985. The Revenue had classified the goods in question under Heading No. 84.15 of the Tariff. 3. The appeal was originally fixed on 1-7-1987. The Consultant for the appellants requested for an adjournment to a date after 15th September, 1987. The matter was again fixed on 6-8-1996 and the notice to the appellants was issued on 18-7-1996. The notice was sent at the address given by them in their E.A. 3 Form. The notice was returned by the postal authorities with the remark "left". The notice for today's hearing was again issued on 22-8-1996 and this notice had also been returned back by the postal authorities with the remark "left". The appellants have not furnished any other address. This is an appeal of the year 1987 and the Order-in-Original was passed in the year 1986. As the matter is very old, we are proceeding to deal with the matter after hearing Shri M. Jayaraman, JDR, who is present for the respondent/Revenue. 4. Shri M. Jayaraman, JDR briefly stated the facts and referred to the tariff entries at Heading No. 84.14 under which the appellants had sought to classify the AHU, and the Heading No. 84.15 under which Heading the Department had classified the products. It was his submission that the AHU was a specific part of the Air Conditioning Machine and they were manufactured for the customers, who were engaged in the manufacture of Air Conditioning Machines. The AHU is not a fan, which can handle air whether it is fresh or hot or conditioned. The assessment is as per Section Note 2 under Section XVI of the Tariff and not of the complete Air Conditioning Machine. As the AHU was suitable for use solely or principally with the Air Conditioning Machine, they were to be classified with the Air Conditioning Machine under Heading No. 84.15. He submitted that the view taken by the Collector of Central Excise (Appeals), Madras is correct and there is no ground for interfering with the view taken by him. 5. We have carefully considered the matter. The appellants have submitted that they are engaged in the manufacture of certain essential sections of the Air Handling Units (AHU), which comprise of various fabricated steel sheet section, coil section, filter section, damper, damper humidification chamber, etc. They have claimed that these units are not more than a component of centrifugal, blowers, curved, multibladed blowers revolving in a volute case. They have further stated that these sections when assembled by the customers at their site together with necessary equipments such as cooling coils condensers, compressors, filters, motors with belt and pulley could be said to form a complete AHU of the Central Air Conditioning Plant. They have however admitted that for marketing purposes, the products produced by the appellants are called AHU units. 6. The appellants have sought to classify these products as described above under Heading No. 84.14, which is extracted below :- 7. It will be seen that fan among other items is included in Heading No. 84.14. The goods as described above are obviously not a fan. The various parts will also not make a fan. The parts such as damper humidification chamber, damper, filter section, coil section, etc. had no application in a fan. 8. The Revenue had classified the products under Heading No. 84.15, which is extracted below:- 9. The product literature supplied by the appellants clearly indicates the application of these goods for Air Conditioning purposes. The customers for whom the goods were manufactured on specific orders were leading Air Conditioner's manufacturers like M/s. Voltas Ltd., M/s. Utility Engineers (India) Ltd., M/s. Blue Star Ltd. In fact, originally the appellants classified their products under Heading No. 84.14 w.e.f. 1-3-1986 and it was only on 14-4-1986 they filed a revised classification list. They have contended in the written submissions before the adjudicating authority that AHU were capable of being used in various applications for handling air irrespective of its condition whether fresh or conditioned. The Asstt. Collector had observed that although AHUs did not add to the conditioning of the air directly, they were specially designed to be used in the Central Air Conditioning Plant and were suitable for use solely or principally with the Air Conditioning Machine and by virtue of Section Note 2 (b) to Section XVI, they merited classification under Heading No. 84.15. Section Note 2 is extracted below :- SECTION NOTE 2: Subject to Note to this Section, Note 1 to Chaper 84 and to Note 1 to Chaper 85, parts of machines (not being parts of the articles of heading No. 84.84,85.44,85.45,85.46 or 85.47) are to be classified according to the following rules :- (a) Parts which are goods included in any of the headings of Chaper 84 or Chapter 85 (other than heading Nos. 84.85 and 85.48) are in all cases to be classified in their respective headings. (b) Other parts, if suitable for use solely or principally with a particular kind of machine, or with a number of machines of the same heading (including a machine of heading No. 84.79 or heading No. 85.43) are to be classified with the machines of that kind. However, parts which are equally suitable for use principally with the goods of heading Nos. 85.17 and 85.25 to 85.28 are to be classified in heading No. 85.17. (c) All other parts are to be classified in heading No. 84.85 or heading No. 85.48. 10. The appellants had not disputed that the goods were manufactured for Air Conditioner's manufacturers and that their principal use was as a part of the Air Conditioning Machine. In the case of Eskayef Limited v. CCE - 1990 (49) E.L.T. 649 (SC), the Hon'ble Supreme Court had observed that merely because a commodity could be used for other purposes will not detract its classification in a heading where it appropriately falls and that a substance does not cease to be patent or proprietary medicines merely because it can also be used for purposes other than prevention or treatment of diseases. The AHU air parts were used solely or principally with the Air Conditioning Machines and their classification as parts of Air Conditioning Machines by virtue of Section Note 2 (b) of Section XVI is correct. 11. The Collector (Appeals) had held that the AHU was not an air or vacuum pump nor it was a gas compressor. It could also not be said that it is a ventilating or recycling hood incorporating a fan. After studying both the Heading No. 84.14 and No. 84.15, he had confirmed the classification under Heading No. 84.15. 12. In view of the above discussion and keeping in view the nature of the product, their use and utility, we do not find any infirmity in the order passed by the Collector of Central Excise (Appeals). As a result, this appeal is rejected. Ordered accordingly.

Keyar Industries vs Collector Of Central Excise on 25 September, 1996

Customs, Excise and Gold Tribunal - Delhi

[Section 581Q(1)(d)] [Section 581Q(1)] [Section 581Q] [Complete Act]

Central Government Act

Gujarat High Court Case Information System Print SCR.A/1899/2009 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 1899 of 2009 ======================================================= SENABEN KALUBHAI DAMOR - Applicant(s) Versus STATE OF GUJARAT & 8 - Respondent(s) ======================================================= Appearance : MS SNEHA A JOSHI for Applicant(s) : 1, MS CM SHAH APP for Respondent(s) : 1, MR MM TIRMIZI for Respondent(s) : 2 - 8. NOTICE NOT RECD BACK for Respondent(s) : 9, ======================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 20/01/2010 ORAL ORDER The petitioner is the wife of deceased, Kalubhai, who died as an unnatural death on 23.06.2009. It is the case of the petitioner that though shortly thereafter on 30.06.2009, she made a written complaint to the concerned Police Inspector that her husband was murdered, same has not been registered as an FIR and the investigation into alleged crime has not been undertaken. Learned A.P.P., Ms.Shah, however, pointed out that initial complaint received by the Police is from the brother of the deceased, who disclosed accidental death and statements have been recorded in this regard. It is, however, admitted that the statement of the present petitioner is not recorded by the Police. Same shall be done as expeditiously as possible. On the basis of said statement, if the Investigating Officer finds that there is necessity to further poke into angle of alleged offence, he shall do so. With the above observations and directions, this application is disposed of accordingly. Notice is discharged. (AKIL KURESHI,J.) /patil     Top

Author: Akil Kureshi,&Nbsp;

Senaben vs State on 20 January, 2010

Gujarat High Court

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Tapan Kumar Bose vs State Of U.P. & Others on 30 August, 2010

Allahabad High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10868 of 2009 KISHOR KUMAR ROY SON OF MAHENDRA ROY RESIDENT OF VILLAGE BIJHARA, P.S. BALIA BELON, BLOCK KADWA, DISTRICT KATIHAR. Versus THE STATE OF BIHAR & ORS . ----------- AMIN/ (Ajay Kumar Tripathi, J.) 3 14/12/2010 Admitted position between the parties is that the impugned order dated 23.06.2009 contained in annexure- 3 is no longer in play in view of the subsequent order dated 10.11.2009 which has been passed by the Appellate Authority, Katihar. To that extent, writ application of the petitioner has lost its meaning and no adjudication is required. On that score this writ application has become infructuous and it is dismissed as such.

Kishor Kumar Roy vs The State Of Bihar &Amp; Ors on 14 December, 2010

Patna High Court - Orders

(a) xxx xxx xxx (b) "iddat period" means, in the case of a divorced woman,: (i) three menstrual courses after the date of divorce, if she is subject to menstruation: (ii) three lunar months after her divorce, if she is not subject to menstruation; and (iii) if she is enceinte at the time of her divorce, the period between the divorce and the delivery of her child or the termination of her pregnancy, whichever is earlier: ORDER R. Basant, J. 1. Does Section 3 of the Muslim Women (Protection of Rights on Divorce) Act oblige the divorce woman to comply with any religious mandate or observances during the period of Iddat? Will a non believer be disentitled to claim amounts under Section 3? These interesting questions arise for consideration in this Revision Petition. 2. This Revision petition is directed against a direction for payment of a total amount of Rs. 129000/- issued to the petitioner by the learned Magistrate under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act. Marriage is admitted. Divorce is also admitted. There is no contention that any amounts have been paid and the liability under Section 3 has been discharged. 3. The petitioner/divorced husband took up a contention that the wife was guilty of improper matrimonial conduct and that she had eloped with another person while the petitioner was employed abroad. The claimant examined herself as PW1. On the side of the petitioner his brother and a friend of his were examined as CP Ws 1 & 2. Exts. Dl to D3 were marked. 4. The learned Magistrate on an anxious consideration of all the relevant inputs came to the conclusion that liability under Section 3 is not discharged and that at any rate the petitioner is liable to pay amounts under Section 3 even accepting all the contentions. The learned Magistrate then proceeded to hold that as maintenance during the period of Iddat @ Rs. 3.000/- per mensem - a total amount of Rs. 9000/- was payable. The court further took the view that a total amount of Rs. 120000/- is payable as fair and reasonable provision and maintenance to the divorced wife. 5. The petitioner claims to be aggrieved by the impugned order Counsel for the rival contestants have advanced their arguments. The learned Counsel for the petitioner submits that the direction for payment of Iddat is not justified in as much as the claimant divorced wife had not observed Iddat. The learned Counsel for the petitioner submits that the woman must observe religious rituals or observances during the period of Iddat and if she does not do the same, she is not entitled to claim maintenance during that period. Section 3 (1)(a) of the Act deals with the liability to pay maintenance during the Iddat period. It is not the law that the lady has to observe any religious rituals or observances during iddat period. Such a conclusion cannot be reached from the plain language of Section 3(1)(a) and the definition of Iddat period in Section 2(b), which I extract below: Section 3. Mahr or other properties of Muslim woman to be given to her at the time of divorce- (1) Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to: (a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband : S.2: Definitions - In this Act, unless the context otherwise requires.: 6. The purpose of Section 3 and the Act is certainly not to compel persons to be religious or observe religious rituals and observances. The secular State was only attempting, by the enactment to ensure that vagrancy was prevented and Muslim husbands also do justice to their divorced wives. The concept of Iddat under the personal law was referred to only to fix the period and not to perpetuate religiosity or religious rituals or observances. This contention must hence fail. Moreover there is no tangible evidence to prove that she had not observed any ritual or observances which she is bound to observe during the period of Iddat as per religious stipulations. 7. The next contention is that the quantum directed to be paid as fair and reasonable provision is not justified. It is excessive, it is contended. The quantum is attacked on two grounds. First of all it is contended that the expression fair and reasonable must have bearing on the nature of conduct which led to the termination of the marriage. Secondly it is contended that the petitioner is without any employment and in these circumstances, he should not have been directed to pay an unreasonable and excessive amount of Rs. 120000/-. 8. It is contended by the petitioner that his wife had eloped with another. Except assertions, there is no satisfactory evidence which can persuade a court to enter a finding of fact in favour of the petitioner on that aspect in this proceedings No specific and acceptable evidence on this aspect is adduced. There is a contention that a criminal case has been launched against the claimant/wife and one Sulaiman. The claimant wife feigns ignorance of such case altogether. I shall assume the worst and conclude that the said assertion of hers was not true. But even that cannot be equated to proof of such improper conduct of elopement by the claimant wife with the said Sulaiman. Thus it remains that there is no satisfactory evidence to prove such theory of elopement by the claimant wife. 9. The learned Magistrate noted that the divorced woman would include a woman who has been divorced by her husband for whatever reasons. The reason for divorce has no bearing on the entitlement of the divorced wife, to claim amounts under Section 3. In these circumstances her status as a divorced wife must be held to be not altered or disturbed even assuming that allegations of adulterous behaviour had led to the proved divorce. Contumacious behaviour in matrimony, which led to divorce, may at worst have a bearing while fixing the quantum of fair and reasonable provision for the divorced wife but cannot affect her status as a divorced wife or her entitlement to fair and reasonable provision. There is no satisfactory proof of such behaviour in this case. 10. The only contention that remains to be considered is that the quantum of amount awarded is excessive. Admittedly the petitioner is employed abroad. There is a contention that after the circumstances which led to the divorce, the petitioner is off his mind and is not able to concentrate on work at his place of employment. The Malayalee community in the locality at the place of employment abroad is looking after and maintaining him, it is urged. This remains in the realm of a fanciful theory suggested in cross examination with nothing tangible to substantiate the same. No conclusions can be drawn or findings entered on the basis of such a theory advanced, which is not substantiated. 11. The court below has not given the break up as to how the court came to the conclusion that an amount of Rs. 120000/- is payable. The court must have been done the same. But that inadequacy does not persuade me at all to interfere with the impugned order. The amount awarded is Rs. 120000/-. The claimant wife has two children born in the wedlock. Remarriage of the divorcee in the Muslim community may be a common event. But with two young children to be looked after, it would certainly be not as easy for the claimant/wife to secure another marriage. Though it is contended that she had eloped with her paramour, there is nothing to show - not even a contention that she has actually been married again to him. Remarriage is not thus proved also. 12. The court below has granted maintenance during the period of Iddat @ Rs. 3000/- per mensem. Against a person employed abroad, such a direction cannot by any stretch of imagination be held to be excessive or perverse. The quantum of fair and reasonable provision is thus equivalent to 40 months' maintenance @ Rs. 3000/-per mensem which is awarded for the period of Iddat. It would be absolutely fair according to me to direct lump sum payment of monthly maintenance for a period of 5 years as fair and reasonable provision under Section 3. An amount of Rs. 120000/- can then be reckoned as maintenance for a period of 5 years @ Rs. 2,000/- per mensem (2,000 x 12 x 5 years). So reckoned, the quantum of maintenance during the period of Iddat or the fair and reasonable provision under Section 3 cannot by any stretch of imagination be held to be excessive or perversely high as to warrant invocation of the revisional jurisdiction of superintendence and correction. The challenge must and does hence fail. 13. This Revision Petition is, in these circumstances, dismissed.

Author: R Basant

Musthafa vs Fathimakutty on 7 July, 2006

Kerala High Court

Gujarat High Court Case Information System Print SCA/24125/2005 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 24125 of 2005 ============================================================== CHIMANBHAI SHAMBHUBHAI SAVALIA - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ============================================================== Appearance : MR KIRIT I PATEL for Petitioner(s) : 1, MR MR MENGDEY AGP for Respondent(s) : 1, NOTICE SERVED for Respondent(s) : 1 - 2. MS SEJAL K MANDAVIA for Respondent(s) : 3, ===================================================================== CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA Date : 01/03/2006 ORAL ORDER S.O. to 14.3.2006 at the request of the learned A.G.P. for the purpose of filing reply. Sd/- ( D.H.WAGHELA, J.) (KMG Thilake)     Top

Author: D.H.Waghela,

Chimanbhai vs State on 6 September, 2011

Gujarat High Court

CRIMINAL APPEAL NO. 455-DB OF 2001 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: October 24, 2009. Parties Name Dilbagh Singh and others ..APPELLANTS VERSUS State of Punjab ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE JUSTICE MRS. DAYA CHAUDHARY PRESENT: Mr. Aman Chaudhary, Advocate, for the appellants Mr. D.S.Brar, D.A.G., Punjab, for the respondent. JASBIR SINGH, J. ORDER. This appeal has been filed against judgment and order dated August 8, 2001, vide which Dilbagh Singh, appellant No. 1( A-1) was convicted for commission of an offence punishable under Section 302 IPC, whereas Hardial Singh alias Dalla Singh, Joginder Singh and Gurbachan CRIMINAL APPEAL NO. 455-DB OF 2001 -2- Kaur, appellants No. 2 to 4 respectively (A-2 to A-4) were convicted for commission of above said offence with the aid of Section 34 IPC. All the appellants were sentenced to undergo imprisonment for life and to pay a fine of Rs. 1,000/- each with a default clause. The appellants are husband, brother-in-law, father-in-law and mother-in-law respectively, of the deceased, namely, Asha Rani alias Ashu. It was allegation against them that they, in the intervening night of 20th and 21st August, 1999, caused burn injuries to Asha Rani, due to which she died on September 19, 1999. Case of the prosecution, as noted by the trial Court in para No. 2 of the impugned judgment, reads thus: Process of criminal law justice was put in motion on a statement (Ex. PH), made by Harbhajan Singh (PW7), brother of the deceased, which led to registration of an FIR (Ex. PH/2) in Police Station Majitha at 9.10 PM on August 21, 1999. The deceased was admitted in the Hospital by Dr. Jaswant Singh (PW2) on August 21, 1999, with burn injuries. The Investigating Officer - Inspector Kuldip Singh (PW9), after registration of the FIR, went to the spot on August 22, 1999, and took into his possession one match box and one plastic cane against recovery memo Ex. Pj . He also got prepared rough site plan with correct marginal notes. He went to the Hospital and moved an application regarding fitness of the patient on August 22, 1999. The doctor declared Asha Rani unfit to make the statement vide endorsement Ex. PK/1. He also recorded statements of the prosecution witnesses. He again went to the Hospital on August 23, 1999, however, returned back for want of availability of the concerned doctor. On August 24, 1999, he again moved an application to know about fitness of the patient. The Doctor declared the patient fit to make statement. In the meantime, it appears that investigation was taken over by SI Paul Singh, who moved an application on August 25, 1999, to the Chief Judicial Magistrate at Amritsar, with a request that statement of Asha Rani be recorded. Application was marked to Manjot Kaur (PW13), Judicial Magistrate Ist Class, Amritsar. She went to the Hospital and moved an application to know about fitness of the patient. Vide opinion Ex. PT, the doctor declared Asha Rani fit to make statement. To know her mental state, CRIMINAL APPEAL NO. 455-DB OF 2001 -5- the witness named above put some questions to her. Thereafter, Asha Rani's statement (Ex. PT/1) was recorded by Mrs. Manjot Kaur, Judicial Magistrate Ist Class. The statement was read over to Asha Rani and she put her left and right foot thumb -impression on the statement. Endorsement in that regard was made by the witness, named above, and also by the Doctor. Asha Rani succumbed to her injuries on September 19, 1999. The Investigating Officer prepared the inquest report and sent the dead body for post-mortem examination, which was conducted by Dr. Gurmanjit Rai (PW1). This witness has specifically stated that the deceased remained admitted in the hospital from August 21, 1999, to September 19, 1999. It was further deposed that superficial to deep burns were present on the forehead, face, upper-limbs, front and back of abdomen and chest. Soles of both feet and outer aspect of right lower limb , superficial and deep slough had fallen of at places with peeling of skin. The burns on the body were to the extent of 60%which were ante mortem in nature. Witness also stated that cause of death was septicemia/ shock, as a result of burn injuries, which were sufficient to cause death in ordinary course of nature. The Investigating Officer, on completion of investigation, submitted final report in Court for trial. It is necessary to mention here that initially, FIR was recorded under Sections 307 and 498-A IPC. However, after death of Asha Rani on September 19, 1999, offences punishable under Sections 302/304-B IPC were added in the FIR. The appellants were charge-sheeted for the above said offences, to which they pleaded not guilty and claimed trial. The prosecution produced 14 witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution evidence, statements of the appellants - accused were recorded CRIMINAL APPEAL NO. 455-DB OF 2001 -6- under Section 313 Cr.P.C. Incriminating material, existing on record, was put to them. They controverted the same, claimed innocence and false implication. However, they led no evidence in defence. It was also averred by the appellants that Dilbagh Singh (A-1) was residing with deceased separately from the other appellants - accused. The trial Court, on appraisal of evidence, found the appellants - accused guilty , convicted and sentenced them, as mentioned in earlier part of this order. Hence this appeal. It is an admitted fact on record that the marriage of appellant No. 1 with the deceased was solemnised about 1 ½ years before the date of occurrence. Out of the wed lock, one child was born. It has also come on record that on the date of occurrence, deceased was pregnant. The trial Court, after noting contents of the statements made by Harbhajan Singh (PW7), brother of the deceased, and Nazar Singh (PW8), father of the deceased, rightly held that the deceased was being maltreated by her husband , throughout, from the date of her marriage. Both the above named PWs have reiterated allegations of the prosecution, as mentioned in earlier part of this order. They have specifically stated that there was a dispute in the family. Dilbagh Singh accused came to them for financial help. He was paid Rs. 5,000/- in cash. Deceased also sold her jewelry to construct a separate house. It was further stated that the land was purchased in the adjoining village Nangli and separate house was constructed thereon by the appellant and the deceased in the year 1996. It has also come on record that appellants No. 2 to 4 were residing at village Sham Nagar. It is also an admitted fact that the occurrence had taken place at village Sham Nagar. Statement of the deceased was recorded by Mrs. Manjot Kaur , Judicial Magistrate Ist Class, (PW13). Reading of the statement indicates CRIMINAL APPEAL NO. 455-DB OF 2001 -7- that before recording it, necessary legal precautions were taken. To know fitness of the deceased, opinion of the Doctor was sought, who gave the positive opinion. Before recording her statement, some questions were also put to the deceased, to test her mental condition. In her statement Ex. PT/3, she has stated as under: From perusal of statement of the deceased coupled with other evidence on record, it can safely be said that so far as participation of Dilbagh Singh (A-1) and Hardayal Singh (A-2) in the crime is concerned, the same is fully proved on record. Dying declaration inspires confidence and the same has been recorded as per norms. The doctor remained present throughout when statement of the deceased was recorded. Some CRIMINAL APPEAL NO. 455-DB OF 2001 -8- discrepancies here and there, as indicated by counsel for the appellants in statements of the prosecution witnesses are of no help to the appellants, i.e., Dilbagh Singh and Hardial Singh alias Dalla Singh. Contention of counsel for the appellants that as the death has occurred after about one month of the date of occurrence and it was the result of septicemia, the trial Court was not justified in convicting the appellants - accused vide the impugned judgment. This Court is of the view that the argument raised is liable to be rejected. It has come on record that when the deceased was taken to the Hospital, she had 60% burns on her body. She died on September 19, 1999. As per post-mortem report, burns were at her entire body. All the burns were ante mortem in nature and were sufficient to cause death in ordinary course. Death of Asha Rani is a direct result of criminal act of the appellants No. 1 and 2. Faced with the situation, counsel for the appellants has vehemently contended that there was no occasion for appellants No. 2 to 4 to be present at the spot. They have unnecessarily been dragged in the litigation being relatives of appellant No. 1. This Court is of the view that so far as participation of appellant No. 2 in the crime is concerned, the same is proved on record. It has come on record that he is unmarried, doing no work and had been teasing the deceased from the very beginning. Otherwise also, the act of causing burns to the deceased appears to be a handiwork of two persons and not one. So far as appellants No. 3 and 4 are concerned, this Court is of the opinion that benefit of doubt can be given to them. Both are father-in- law and mother-in-law of the deceased. They were of 73 years and 70 years of age respectively at the time of alleged occurrence. They remained CRIMINAL APPEAL NO. 455-DB OF 2001 -9- in jail for more than seven years. This appeal was filed through Jail. In the dying declaration, which was recorded on August 25, 1999, it was stated that both had caught hold of the deceased from her arms. This Court is of the opinion that such an act may not be possible by the appellants No. 3 and 4 being very old. Evidence on record clearly indicates that appellants No. 3 and 4 were living separately from the deceased and her husband. Statement of Harbhajan Singh (PW7) and Nazar Singh (PW8) was recorded before recording the statement of the deceased. Both the witnesses have attributed the same roll to appellants No. 3 and 4, which was subsequently attributed by the deceased, to them, in her dying declaration. It has also come on record that immediately after admission in the Hospital, parents of the deceased reached there and they remained by her side throughout. Both the witnesses have stated that the deceased was in semi-conscious state and had told them facts about the alleged incident. It appears that the deceased might have been tutored by the parents, in the meantime, before her statement was recorded by the Magistrate. At present both the appellants are more than / about 80 years of age. Their lordships of the Supreme Court have specifically noted in Kans Raj v. State of Punjab, AIR 2000 Supreme Court 2324, and Sham Lal v. State of Haryana, AIR 1997 Supreme Court 1873, that it has become tendency in matrimonial disputes, to drag all relatives of the husband, in criminal litigation. A caution was given to the Courts to make an attempt to separate truth from falsehood. Appellants No. 3 and 4 are very old. They were not to be benefited if any dowry/ amount was to be paid by the parents of the deceased to appellant No. 1. Allegations against appellants No. 3 and 4 do not inspire confidence, benefit of which will go to CRIMINAL APPEAL NO. 455-DB OF 2001 -10- them. In view of above, this appeal is dismissed qua appellants No. 1 and 2, they be taken in custody to undergo remaining part of their sentence. However, it is allowed qua appellants No. 3 and 4 and they are acquitted of the charges framed against them. (JASBIR SINGH) JUDGE ( DAYA CHAUDHARY) JUDGE October 24, 2009. DKC

Parties Name vs State Of Punjab on 24 October, 2009

Punjab-Haryana High Court

Gujarat High Court Case Information System Print CAST/1025920/2008 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION (STAMP NUMBER) No. 10259 of 2008 In SPECIAL CIVIL APPLICATION No. 589 of 2006 ========================================== RAMILABEN BHAGUBHAI - Petitioner(s) Versus KASHIRAM DEVJIBHAI PATEL & 2 - Respondent(s) ========================================== Appearance : MR KASHYAP R JOSHI for Petitioner(s) : 1, 1.2.1, 1.2.2, 1.2.3,1.2.4 None for Respondent(s) : 1 - 3. ========================================== CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 10/11/2008 ORAL ORDER Office objections to be removed on or before 24th November, 2008, failing which the application shall stand dismissed for default automatically without referring the matter to the Court. (M.R. SHAH, J.) siji     Top

Author: M.R. Shah,&Nbsp;

Ramilaben vs Kashiram on 10 November, 2008

Gujarat High Court

Q3'-y.:_ nit/s P NATARAJU ASSOCTS, AOVOCATES} " ctjurzrr' ACT AGAINST THE JUDGMENT & DEGREE D1'. 2.7.07 mssm) m S.C.N<}. 7/05 on THE FILE 0? THE JUDGE, cc.-um' OF SMALL CAUSES, MYSORE3, {}ISMISSING THE sun' FOR IN THE Hifilri mum' 012' KARNATAKA AT T' ' DATED THIS THE Gem: pAY% dF%A*uc2Us**fk20Q37' BEFQRE h %x :' " 'h V TI-IE HON'BLE MR. S CIVIL REVISION 1s*2:T1T:tj1s:%%A:\::j %;F*zg1 <5F*2do7 BETWEEN: 1 Sm' SHA%-iI§7¥1'A--SU£.TH_A!.%.A 'V W/0 MUHEE;R"PA?-HA AGEDiABQUT"饀l__YERAS;"- " _ R/AT c!i1KK.;}.JUNE-:3IR1.'BEED1 SI%£R&NGAPA'1"?fiA'I'OWN, " MANDVA V!;Is*r:e11cr 4-371 438. . ' ' PETFFIONER (By Sri B.C".=RAaEEEV', r¥*<jR.1r§&';.S§ G s V ASSOCIATES, ADVOCATES yr. " - " » V1' _ vsMfI'*vA.:s1':THA ALVA V.'.f G_P' HARIS-H ALVA --.,AGEr.>"_~ABoU'r 47 YEARS, PRoPmé3_*Rxx, SHREYAS ENTERPRISES, O§".P.RE'GIONAL COLLEGE QUARTERS, Began: ROAD,MYSORE --- 570 001. RESFONDENT CRP FILES U] S 18 OF THE KARNATAKA SMALL CAUSE ARREARS OF' RENI'. This Civil revision petition, coming an for admission, this day, the Court, made the follewing: ii prove payment of rents under.:exhibit.~§ V V necessarily plairatiif has to A the impugled judmlent can?' S 20. In Vi('3W ofvt-he fomgo§i1g &§§cus'Sidr1§fiud for the reasons stated hemiizbefomi, "Ida:-tision petition is allowed. passed in S.C.No.'7/ Small Causes at is decreed. The p1ai11tif;f-3.3 fmm defendant .3 sum of I?Es.24,§(}()O,xf?" at 6% from the date of suit " til} (iafe Qf with costs. /'t Sd/1 Judge

Author: N.Ananda

Smt Shahists Sulthana vs Smt Vanitha Alva on 6 August, 2008

Karnataka High Court

ADESHWAR MARKETING L§MI'I'ED, NO.9303, PARIS CORNER, KILARI ROAD, BANGALORE-560 O53, REP. ITS MANAGING PARTNER. UNSTED INDIA iNs{1RANcE cQ.'1;rB., V . BRANCH OFFICE CODE No.o7'i§03, " N0.366/72, 19%' MAIN, 131' BLQCK, RAJAJINAGAR, . " j BANGAL0BE--56oo1o. _ , REP. BY {TS BRANCH MABAGBR'. (BY SR! A.N. KR1sHrg.A--sw.AM;?, A:3i.rocAé*B, B2) MFA FILE?)-,Uf_S;_l73(1). cm. Am' AGAINST THE JUDGMENT .,ABn.,,AwA1¢¢B. DA'PED:""15;10.04 PASSED IN Mvc No.5x::=2/03, GB THE, l<'!1,E._OF THE V1! ADDL JUDGE, MEMBER, MAUI'-3, " " OF SMALL CAUSES, BANGALORE, " , (BCCB No.3}-,..__ PARTLY ALLOWING THE CLAIM PETrrIOB.., FOR .COMRENSA'i'ION AND SEEKING ENI-lANCEM.EN'I' or-' COMPENSATION. +m;s PAfF.A;, c:QM;NHG'"'O'N' FOR CONCILIATZON BEFORE THE A}).Ai.A"}'.,__ N. ANANDA, .5., PASSED THE FoLLow,1NBe»_[B.,,.,, - ' "B:{.;I});P€CILIATION ORDER -4 ' ~.,'l'hc Counsc} for the appcllarmlclaimanm and fcounscl for the Insurance Company, along with V" itpffiwntafive of the insurance Company, are present. " 2. After ncgoiiatioxts, the mattacr is settled. The ié:-ppellants/claimants have agreed to motive and the 2"' Icspondent-(United India Insurance Co. Liri.,) has ageod to pay a lump sum of Rs. 2,30,000[- (Rupcas Two Lakh Thirty I: 1x=-=:.a:':\'"'~'"'*" "B -'Ia . Thousand only), in addition to what has been x 'M the Tribunal, in fulland final settlement orgflm %:% -- 3. The 2nd rcspondtnt-( United India = a Ltd.,) has agwwd to deposit the S Tribunal, within six weeks fits£a..V_the .kaa:é'A}1¢f;szgpm§a;flon Award, failing which the said at the rate of 9% per till the date ofdeposit V .} ' T i 4. We are thé arrived between 5. This Appeal stands disposed' of in tcz1i'm..V_V c>vi' Joint Memo. The Award %Sd[-3» III Iudga $5» »MSUL

Author: Lok Adalath

G L Pushpa vs Adishwar Marketing Limited on 4 April, 2008

Karnataka High Court

Gujarat High Court Case Information System Print MCAST/1046/2008 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD MISC.CIVIL APPLICATION (STAMP NUMBER) No. 1046 of 2008 In SPECIAL CIVIL APPLICATION No. 29610 of 2007 ========================================== VINUBHAI PRABHUDAS PATEL & 1 - Applicant(s) Versus KOKILABEN D/O RANCHHODBHAI MOTIBHAI W/O RAISINGBHAI & 3 - Opponent(s) ========================================== Appearance : MR JA ADESHRA for Applicant(s) : 1 - 2. None for Opponent(s) : 1 - 4. ========================================== CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 23/07/2008 ORAL ORDER Office objections to be removed on or before 6th August, 2008, failing which, the application will be dismissed for non prosecution without referring the same to the Court. On removal of the office objections, Registry is directed to notify the matter before the Court for admission hearing but not later than one week from removal of the office objections. (M.R. SHAH, J.) siji     Top

Author: M.R. Shah,&Nbsp;

Vinubhai vs Unknown on 23 July, 2008

Gujarat High Court

[Section 3] [Complete Act]

Central Government Act

Title: Requested to introduce first class compartments, increase the number of AC two tier and AC three tier compartments and to improve the poor condition of toilet and other facilites in the Purushottam Express. श्रीमती कान्ति सिंह (बिक्रमगंज) : धन्यवाद, अध्यक्ष महोदय। मैंने अभी सफर किया है, इसलिए मैं यह मसला उठा रही हूं। पुरुषोत्तम एक्सप्रैस नई दिल्ली से चलकर कानपुर, इलाहाबाद, मुगलसराय, सासाराम, देहरी, औरंगाबाद और गया होती हुई जमशेदपुर से पुरी तक जाती है। पुरुषोत्तम एक्सप्रैस टाटा के लिए खास तौर पर सबसे अच्छी ट्रेन है, लेकिन इसमें ए.सी.फस्र्ट क्लास का डिब्बा नहीं है, ए.सी. टू टियर की एक बोगी है और ए.सी. थ्री टियर की भी एक बोगी है। इतनी लम्बी दूरी तय करने वाली पुरुषोत्तम एक्सप्रैस में बहुत सारे लोग सफर करते हैं, लेकिन उन्हें आरक्षण नहीं मिल पाता है, इसलिए मैं आपके माध्यम से सरकार का ध्यान आकर्षित करना चाहती हूं कि उसमें ए.सी. फस्र्ट क्लास का डिब्बा लगाया जाये और ए.सी. टू टियर और ए.सी. थ्री टियर की बोगी बढ़ायी जाये। इसके साथ ही उसके शौचालयों और डिब्बों की सफाई वगैरह भी ठीक से नहीं होती है। जो बैडरोल दिया जाता है, इसका जो आर.के. वाला बहुत बड़ा कांट्रेक्टर कांट्रैक्ट लेता है, उसकी बैडरोल की स्थिति भी बहुत दयनीय हो चुकी है। जब हम लोगों के साथ इस तरह की बातें होती हैं तो आम जनता के साथ क्या होता होगा, इसका अंदाज लगाया जा सकता है। उसमें भी सुधार लाने की जरूरत है। आपने मुझे बोलने का मौका दिया, इसके लिए आपको धन्यवाद।…( व्यवधान) MR. SPEAEKR: What is this? I am calling everybody. Shri Satyavrat Chaturvedi, you were disturbing during the Question Hour and during Zero Hour also you are disturbing. श्री सत्यव्रत चतुर्वेदी : अध्यक्ष जी, पार्लियामेंटरी अफेयर्स मनिस्टर ने मुझे जवाब देने के लिए बोला था, लेकिन अभी तक उनका जवाब नहीं आया। अध्यक्ष महोदय : किसके बारे में? श्री सत्यव्रत चतुर्वेदी : खजुराहो के लिए इंडियन एयरलाइंस की फ्लाइट के बारे में मैंने जीरो ऑवर में मामला उठाया था, उन्होंने कहा था कि सोमवार को इसका जवाब देंगे।…( व्यवधान) MR. SPEAKER: हम पूछेंगे। Shri Athawale, I cannot understand your behaviour in the House. How many times I have to say that? Why do you not take it seriously? If you want to say anything, you have to take permission from the Chair. Without the permission of the Chair, how can you speak always?

Requested To Introduce First Class Compartments, Increase The ... on 22 August, 2000

Lok Sabha Debates

IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.42775 of 2010 Ramawatar Manjhi Versus The State Of Bihar 5/ 08.08.2011 List this case at the top of the list under the heading "Admission". shail (Mandhata Singh, J.)

Ramawatar Manjhi vs The State Of Bihar on 8 August, 2011

Patna High Court - Orders

Gujarat High Court Case Information System Print CA/11241/2008 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION No. 11241 of 2008 ========================================================= BARIYA KIRITSINH DALPATSINH & 2 - Petitioner(s) Versus THE STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MS VINITA S VINAYAK for Petitioner(s) : 1 - 3. MR JK SHAH AGP for Respondent(s) : 1, None for Respondent(s) : 2 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 23/09/2008 ORAL ORDER Heard. In view of the averments made in the application, the same is allowed. The application stands disposed of accordingly. The main matter to be listed for hearing in the first week of April 2009 along with Special Civil Application Nos.21842/2006 and 20742/2006. [K. S. JHAVERI, J.] Pravin/*     Top

Author: Ks Jhaveri,&Nbsp;

Bariya vs The on 23 September, 2008

Gujarat High Court

ORDER 1. Heard both sides. 2. The delay in filing the appeal is condoned, sine we are satisfied that sufficient cause has been shown for condoning the delay. Appeal is taken up for admission and with the consent of counsel for the parties it is being disposed of finally by this judgment. 3. The appellant entered the service of the respondents on 23.1.1981. According to the appellant his date of birth was 1.1.1953. Actually he was earlier given an appointment letter dated 2.5.1974, but he could not joint due to certain problems as is clear from letter dated 19/20.1.1981 (Annexure-4). The case of the appellant is that after he was given another letter of appointment dated 5.12.1979 (Annexure-2) he was medically examined and his age was determined as 27 years on 1.1.1980. But it appears that the age of the appellant was shown in the concerned service record as 3.1.1941. This entry continued. At some point of time the said entry is seen to have been corrected and the date of birth of the appellant is seen to have been shown as 1.1.1953. Annexure-7, the Service Register, indicates that the original entry regarding the date of birth of the appellant was 3.1.1941 and it is seen to be struck off and the entry corrected as 1.1.1953, as per medical certificate attached. According to counsel for the respondents, this entry was not even authenticated by even an initial of the authority who made the entry and there is no other record available to show that the entry was an authorized entry and not an interpolation. According to the appellant this entry of 1.1.1953 was accepted by the respondents. The respondents issued retirement order dated 11.12.2000 (Annexure-8) to the appellant Informing him that he is to retire on 3.1.2001 presumably on the basis of the entry of the date of birth made in the record as 3.1.1941. According to the appellant he made a representation before the respondents and submitted that since his date of birth was 1.1.1953, he cannot be retired on the basis of the alleged entry in the record as 3.1.1941. It is submitted that the said representation did not yield any fruit and the appellant was constrained to approach this Court by filing writ petition being W.P. (S) No. 4407 of 2001, out of which this appeal arises. 4. According to the appellant, as per the service record and other related relevant documents including the pay slip, he should be allowed to continue in service on the basis of his date of birth as mentioned in the record as 1.1.1953. This contention of the appellant was opposed by the respondents by contending that his date of birth as entered in as 3.1.1941 and the same has never been objected to by the appellant and it has been accepted by him. It is pointed out by the appellant that the correction in the date of birth has been made by the respondents in the relevant records in their custody. But the respondents submit that 3.1.1941 was the correct date of birth. The fact remains that the record was actually in the custody of the respondents and the date of birth has been altered as 1.1.1953 from 3.1.1941. 5. The learned Single Judge took the view that determination of the age of the petitioner as 1.1.1953 or 3.1.1941 involved an adjudication on a disputed question of fact and it cannot be done in proceedings under Article 226 of the Constitution of India. The learned Single Judge therefore declined to interfere on such a disputed question of fact and dismissed the writ petition giving the appellant liberty to approach the appropriate forum for establishing his claim regarding his date of birth. Being aggrieved, the appellant has filed this Letters Patent Appeal. 6. The learned Single Judge was correct in his conclusion that the dispute in question cannot satisfactorily be decided in this proceeding under Article 226 of the Constitution of India obviously because evidence relevant for the resolution of the dispute is needed to be taken. In that context, learned counsel for the appellant placed reliance on a judgment of this Court in L.P.A. No. 649 of 2001 (Central Coalfields Limited and Ors. v. Sri Ram Kishun Pandey) a copy of which is annexed as Annexure-10 to this appeal, in which the respondent herein was the appellant. Of course, in that case, the dispute regarding the age arose at the time when the employee was still in service and in the present case it arises after the superannuation of the appellant. In that case this Court had directed the Head of the Central Coalfields Ltd. Hospital at Gandhi Nagar, Ranchi to constitute a Multi-Member Medical Board, consisting of at least a Radiologist and one Physician Specialist for assessing the age of the employee involved in that case. Here, no doubt, the appellant can approach the appropriate authority under the Industrial Disputes Act to establish his claim to continue in service on the basis of his date of birth being 1.1.1953. But considering the fact that the appellant is a colliery worker and he has already been retired accepted his date of birth as 3.1.1941, we think that in view of the circumstances obtaining in this case and the course adopted by this Court in L.P.A. No. 649 of 2001, the same course can be adopted to determine the age of the appellant herein especially keeping in view the fact that the date of birth of the appellant was once entered in the relevant service record and subsequently that Was corrected. 7. We, therefore, allow this appeal in part and modify the decision of the learned Single Judge dated 13.12.2002 in W.P.(S). No. 4407 of 2001 and direct the respondents to subject the appellant to a Medical examination by a Multi-Member Medical Board to determine his age and submit its report to the respondents. The Head of the Central Coalfields Ltd. Hospital at Gandhi Nagar, Ranchi is directed to constitute a Multi-Member Medical Board, comprising of at least a Radiologist and on Physician Specialist. The. assessment of the age by the said Medical Board will be binding on both the parties. The Board shall assess the age of the appellant as on the date of examination and shall submit its report to the respondents. The Medical Board shall be constituted within a month from today. The Medical Board will give notice to the appellant of the date of examination and then proceed to examine him and submit the report to the respondents, which will take appropriate consequential action based upon it, if any action is needed. 8. We make no order as to costs.

Kishori Mahto vs Central Coalfields Ltd. And Ors. on 12 March, 2003

Jharkhand High Court

Gujarat High Court Case Information System Print X-OST/81/2007 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CROSS OBJECTION (STAMP NUMBER) No. 81 of 2007 In FIRST APPEAL No. 2179 of 2007 ========================================================= CHANDRAMOHAN PARMAR & 6 - Appellant(s) Versus ORIENTAL INDIA ASSURANCE CO. LTD. & 2 - Defendant(s) ========================================================= Appearance : MS PAURAMI B SHETH for Appellant(s) : 1, 1.2.1,1.2.2 - 6.- for Appellant(s) : 7, MR KK NAIR for Defendant(s) : 1, None for Defendant(s) : 2 - 3. ========================================================= CORAM : REGISTRAR (JUDICIAL) Date : 08/07/2008 ORAL ORDER Office objections to be removed on or before 05.08.2008, failing which, the matter may be placed before the Hon'ble Court for passing appropriate orders. (G.K. Upadhyay) Registrar (Judicial) Nabila     Top

Chandramohan vs Oriental on 8 July, 2008

Gujarat High Court

Court No. - 54 Case :- APPLICATION U/S 482 No. - 1556 of 2010 Petitioner :- Raj Dhari Respondent :- State Of U.P. Petitioner Counsel :- Smt. Manju R. Chauhan Respondent Counsel :- Govt. Advocate Hon'ble Ravindra Singh,J. Heard learned counsel for the applicant and learned A.G.A. This application has been filed with a prayer to direct the learned Additional Sessions Judge -IV Mirzapur to decide Misc. Bail(Cancellation) Application No. 72 of 2009 in case crime no. C-14 of 2007 under section 364 I.P.C. registered at P.S. Vindhyachal district Mirzapur. Considering the facts and circumstance of the case it is directed that in case the above mentioned bail cancellation application is pending, the same shall be heard and disposed of in accordance with the provisions of law. With the above direction this application is finally disposed of. Order Date :- 22.1.2010 N.A.

Raj Dhari vs State Of U.P. on 22 January, 2010

Allahabad High Court

[Section 18] [Complete Act]

Central Government Act

ORDER V.P. Gulati, Vice President 1. The issue in the appeal relates to the benefit of Notification No. 61/88 which is available in respect of the paper of specified variety which is used for purpose of printing of text books and other books of general interest. The books involved in the present case have been described as colouring books. The learned lower authority in para 4.2 of his order has held as under : "The next question is whether children's colouring books can be considered as books of general interest but there is no definition for books of general interest in the Notification. However it appears that the books of general interest will have to be the ones which by themselves hold a general interest to all Sections of a literate society. In the instant case, it could not be said that the colouring books by themselves have any general interest. At best they induce the children of certain age group to do some work, i.e. to colour on them and after that colouring only the question of interest if any in the books arises, since the books have pictorial representation of varieties of scenes, animals, birds, flowers, fruits etc. As per Tariff Advice given by CBEC, the general interest book is a book which is not limited in its appeal to only a small group of specialists. In this view, it is seen that these colouring books at best will be of interest only to young children and cannot be held to a book of general interest. Further, normally a book is associated with some reading material. In view of the above, I hold that the Assistant Collector was right in denying exemption under Notification 61/88 to these books. However, so far as mod-vat credit benefits are concerned, the Assistant Collector will have to verify duty paid documents for the inputs and revise the demand after allowing duty credits, if otherwise in order, as decided by CEGAT, in the decision cited by the appellants. Likewise the assessable value also will have to be revised after taking into account the duty payable due to denial of exemption to the paper in question in accordance with the other CEGAT decision cited by the appellants.". 2. The learned Advocate for the appellants referring to the order of the learned lower authority has pointed out that the learned lower authority while he accepts that colouring books etc. are books has misdirected himself in holding that the books meant for children could not be taken to be of general interest. He has pleaded the books in question are not text books. Therefore the question to be considered is what are the books which can be termed to be of general interest. He has pointed out that the learned lower authority himself has stated in his findings that there is no definition of books of general interest. He has however referred to the tariff advice of the Central Board of Excise and Customs wherein the scope of books of general interest has been elaborated and it has been stated therein that this is a book which is not limited in appeal only to a small group of specialist. He has pleaded admittedly that children's books cannot be considered as books for small group of specialist. These books intended for general interest of the children. He has pleaded that there are books which are targeted to certain population groups and which are not in the nature of specified books and therefore those books can also be considered as general books. He has therefore pleaded that benefit of Notification 61/88 should have been allowed. He has pleaded in case this benefit is given the other points raised by them will not be relevant for consideration. 3. The learned JDR has adopted the reasonings of the learned lower authority. 4. We have considered the pleas made by both the sides. We observe that the item books figure in the Central Excise Tariff under chapter 49 and under which the exemption notification has been issued. The scope of the term book as it is has not been set out under Chapter Notes. But there is an indication to show that the 'books printed' under Section 49 also means those printed by duplicating machine, or copies produced under the control of computer, embossed, photographed, photocopied etc. We observe that under the HSN on which the Central Excise Tariff is based under various headings different types of books have been set out. It is seen that the picture books also figure under this under Chapter 49.03. This heading 49.03 carries the heading Children's Picture, Drawing or Colouring Books. The scope of this heading is amplified in the HSN as under: 49.03. Children's Picture, Drawing or Colouring Books This heading is restricted to those picture books clearly compiled for the interest or amusement of children or for guidance in their first steps of primary education, provided the pictures form the principal interest and are not subsidiary to the text (see Note 6 to this Chapter). This category includes, for example, pictorial alphabet books and books of the kind in which the sense of stories is conveyed by a series of episodal pictures accompanied by captions or summary narratives related to the individual pictures. It does not include books, even profusely illustrated, written in the form of continuous narratives with illustrations of selected episodes. These fall in heading 49.01. The books of this heading may be printed on paper, textile, etc., and include children's rag books. A child's picture book incorporating "stand-up" or movable figures also falls in this heading but if the article is essentially a toy it is excluded (Chapter 95). Similarly, a child's picture book containing pictures or models for cutting out remains in this heading provided the "cut-out" portions are a minor feature, but if more than half the pages (including covers) are designed for cutting out, whether wholly or in part, the article, even if also containing a certain amount of text, is regarded as a toy (Chapter 95). It is seen that drawing books are also covered under the term books. The learned lower authority has also not in his order held that these could not be considered as books. The objection taken is that they could not be treated as books of general interest. Once the children's drawing books are considered as books, the controversy narrows down only to the point whether these are of general interest. The books of general interest are to be considered in contradistinction to the books which are of interest to the specialist as clarified by the Board. Some of the books of general interest may have universal acceptance and readership while the others may be for a certain segment of the population or some books may be published for certain targeted population. Just because the targeted population is limited does not make the book anything less than a book of general interest. In the present case the books for children can be considered as books of general interest. In the above view of the matter we hold that the benefit of Notification 61/88 in the context of the books which are held to be of books of general interest is available. In that view of the matter we allow the appeal of the appellants. Consequential relief in the above terms may be allowed.

Sun Paper Mills Ltd. vs Commissioner Of Central Excise on 19 March, 1997

Customs, Excise and Gold Tribunal - Tamil Nadu

Appeal No.CIC/SS/A/2011/001244 Appeal No. CIC/SS/A/2011/001284 Appeal No. CIC/SS/A/2011/001430 CENTRAL INFORMATION COMMISSION B- Wing, 2nd Floor, August Kranti Bhavan, Bhikaji Cama Place, New Delhi - 110066 Appeal No.CIC/SS/A/2011/001244 Appeal No. CIC/SS/A/2011/001284 Appeal No. CIC/SS/A/2011/001430 PARTIES TO THE CASE: Appellant : Shri Subhash Chandra Agrawal (present in person along with Shri Prashant Bhushan and Shri Pranav Sachdeva, Advocates) Respondents : 1. O/o. the Deputy Commissioner of Police, Special Cell, I.P. Estate, New Delhi (through Shri L.N. Rao, Additional DCP & PIO) 2. Central Forensic Science laboratory, Chandigarh (through Dr. S.K. Shukla, Director & CPIO) Date of Hearing : 01/11/2011 COMMON ORDER 1. The set of aforementioned three appeals came up for hearing before the Commission and it is expedient to dispose of the said connected matters through this Common Order. 2. The three appeals arise out of common set of facts wherein the subject- matter relates to the controversy regarding the doctoring of some CDs 1 Appeal No.CIC/SS/A/2011/001244 Appeal No. CIC/SS/A/2011/001284 Appeal No. CIC/SS/A/2011/001430 allegedly having conversation between Shri Shanti Bhushan, Senior Advocate and Shri Mulayam Singh Yadav, Samajwadi party Chief. 3. The Appellant had filed three different RTI Applications dated 06/05/2011, 16/05/2011 and 30/05/2011 in the aforementioned three appeals, based on the foresaid subject-matter and had raised various queries in each of these RTI Applications. The common response received by the Appellant from both the CPIO as well as the FAA in all the said three matters was that the information sought could not be provided under Section 8 (1) (h) of the RTI Act as doing so would hamper the process of investigation. It is pertinent to mention that Shri Shanti Bhushan, Senior Advocate had lodged an FIR No.47/2011 with the Respondent with reference to the case of allegedly doctored CDs and the matter was being investigated by Shri L.N. Rao, the I.O. who is appearing on behalf of Respondent No.1. 4. The Commission has been apprised of the Final Report submitted by the said I.O. in the case of FIR No.47/2011 before the Court of Shri Vinod Yadav, CMM, Tis Hazari Courts, Delhi and the said report has also been placed on record before the Commission. Therefore, it is apparently clear that the investigation in the case of FIR No.47/2011 is closed and the Final Report required to be prepared under Section 173 Cr.P.C. has already been submitted to the learned Court. As a result, the Commission is of the view that the Respondents are prohibited from outrightly invoking the exemption 2 Appeal No.CIC/SS/A/2011/001244 Appeal No. CIC/SS/A/2011/001284 Appeal No. CIC/SS/A/2011/001430 clause under Section 8 (1) (h) of the RTI Act while denying information as sought by the Appellant through his 3 (three) RTI Applications. 5. Shri Prashant Bhushan, learned counsel for the Appellant has also submitted that when similar information was sought from the Prime Minister's Office ("PMO") by the said Appellant through some other RTI Application, then no such exemption clause was invoked by the PMO and the information was in fact provided to the Appellant under the RTI Act. Shri L.N. Rao has not challenged the submission forwarded by Shri Bhushan but at the same time, has preferred to justify the CPIO's Order on grounds of Section 8 (1) (h) of the RTI Act. However, Shri Rao has also submitted that since the investigation is closed now, therefore the Respondent No.1 will have no hesitation in providing para-wise reply to the various queries raised by the Appellant in each of his said RTI Applications. 6. In light of the said development, the Commission hereby remits the matter back to the concerned CPIO of the respective Respondents and directs each of the respective CPIOs to furnish complete para-wise reply to each of the queries raised in the abovementioned three RTI Applications to the Appellant within 20 days of receipt of this Order. 7. The Commission further directs the Respondent No.1 to provide the Appellant with a copy of the forensic report regarding doctored CD prepared in the foresaid criminal case by CFSL, New Delhi, and a copy of the report 3 Appeal No.CIC/SS/A/2011/001244 Appeal No. CIC/SS/A/2011/001284 Appeal No. CIC/SS/A/2011/001430 of the Indian Computer Emergency Response Team (CERT-IN), Department of Information Technology, free of cost, within 20 days of receipt of this Order. This is so because Section 8 (1) (h) of the RTI Act can no longer be used as an exemption from providing such forensic report given the facts of the present case. The Respondent No.2 is also hereby directed to provide the Appellant with a copy of the forensic report regarding doctored CDs prepared in the same criminal case by Respondent No.2, free of cost, within 20 days of receipt of this Order. 8. The Appeal is accordingly allowed. (Sushma Singh) Information Commissioner Fourteenth Day of November, 2011 Authenticated True Copy (DC Singh) Deputy Registrar Name & Address of Parties: Sh. Subhash Chandra Agrawal,  1775, Kucha Lattushah, Dariba,  Chandni Chowk, Delhi - 110 006 The CPIO/PIO,  Ministry of Home Affairs,  4 Appeal No.CIC/SS/A/2011/001244 Appeal No. CIC/SS/A/2011/001284 Appeal No. CIC/SS/A/2011/001430 Directorate of Forensic Science Services,  Central Forensic Science Laboratory,  CFIs Complex, Sector 36­A, Chandigarh - 160 036  The First Appellate Authority, Ministry of Home Affairs,  Directorate of Forensic Science Services,  9th Block, 8th Floor, CGO Complex, Lodhi Road,  New Delhi - 110 003 The CPIO/PIO,  Delhi Police, O/o the Deputy Commissioner of Police,  Special Cell, MSO Building, IP Estate,  New Delhi - 110 002  The Appellate Authority,   Joint Commissioner of Police, Delhi Police,  Special Cell, 6th Floor, MSO Building, IP Estate,  New Delhi - 110 002  5

Mr.Subhash Chandra Agrawal vs Ministry Of Home Affairs on 14 November, 2011

Central Information Commission

(a) Gross income from rents. ....... Rs. 55,000 (b) Siwai income ....... Rs. 80,500 Actually (according to the affidavit the petitioner was realizing 4,65,000 from this source). Total ....... 1,35,000 Deductions permissible under the Act are the following :- (a) Revenue ...... 45,000 (b) Income-tax on 30 years average ...... 66,600 (c) Cost of management ...... 21,000 Total ...... ------- 1,32,600 Net income ...... 2,400 17. Ten times net income would be Rs. 24,000; but as the net income cannot be reduced below five per cent. of the gross income which comes to Rs. 6500, compensation payable is Rs. 65,000 while the yearly income of the petitioner was in the neighbourhood of Rs. 5,65,000 and the market value of his property is 25 lakhs. JUDGMENT Mahajan, J. Petition No. 166 of 1951. 1. This is a petition under article 32 of the Constitution of India by Shri Visheswar Rao, zamindar and proprietor of Ahiri zamindari, an estate as defined in section 2 (3) of the Central Provinces Land Revenue Act, II of 1917, and situated in tehsil Sironcha, district Chanda (Madhya Pradesh), for the enforcement of his fundamental right to property under article 31(1) of the Constitution by the issue of an appropriate writ or a direction to the respondent State restraining it from disturbing his possession of the estate, and eighty malguzari villages situate in the Garchiroli tehsil of the same district. 2. The petitioner and his ancestors have been owing and enjoying these properties in full proprietary right for several generations past. On the 5th April, 1950, the Madhya Pradesh Legislative Assembly enacted an Act called the Madhya Pradesh Abolition of Proprietary Right Act. The Act received the assent of the President of India on the 22nd January, 1951, and was published in the Madhya Pradesh Gazette on the 26th January, 1951, as Act I of 1951. By a notification in a gazette extraordinary issued on the 27th January, 1951, the Madhya Pradesh Government fixed 31st March 1951, as the date of vesting of the estates under section 3 of the Act. The petitioner thus was to lose his estate and lands on the 31st March 1951. On the 9th March, 1951, i.e. before the vesting date, he presented the present application to this court for the issue of appropriate writs against the government prohibiting it from taking possession of his properties. It was alleged that the Madhya Pradesh Act, I of 1951 was unconstitutional and void and infringed the fundamental rights of the petitioner in a variety of ways. 3. For a proper appreciation of the ground on which the validity of the Act is being challenged it is necessary to set out the relevant provisions of the Act and to state the facts which led to this enactment. 4. Madhya Pradesh is a composite State, comprising the Central Provisions, Berar and the merged territories. By an agreement of merger made between the rules of States and the Dominion of in India dated the 15th December 1947, certain territories which at one time were under the Indian States Agency and were held by these rulers were integrated with the Dominion. The intergration actually took place on the 1st January, 1948. On the 1st August, 1949, the States were merged in the Madhya Pradesh. There were in all 106 estates in Madhya Pradesh as defined in section 2 (3) of Act I of 1951 and held by zamindars. Most of the lands are owned by malguzars of mahals in the status of " Malkan cabza". 5. The land system prevailing in Madhya Pradesh is malguzari (except in certain areas where the ryotwari system is in vogue), the malguzar being an intermediary between the State and the tiller. Land is also held on a variety of subordinate tenures by absolute occupancy tenants, occupancy tenants, ryots, thikedars, mafidars ilaqadars etc. 6. Land revenue in Madhya Pradesh was last assessed under the Central Provinces Land Revenue Act, II of 1917. The estate holders pay land revenue on the lands comprised in the estates at a concession rate. The payment is technically called "tekoli" In 1939 there was an ad hoc increase in the amount of tekoli by the Central Provinces Revision of Land Revenue Estates Act, I of 1939. 7. On the 3rd September 1946 the Central Provinces and Bear Legislative Assembly passed a resolution for the elimination of intermediaries between the State and the peasant. Soon after passing of this resolution several laws were enacted, it is said with a view to achieve this result, the impugned Act being the last of the series. In 1947, the Central Provinces Land Revenue Estates Act, XXV of 1947, was enacted. The revenue assessment, viz., tekoli, on the estates was, we are told enhanced, in some places from thirty to fifty per cent, of the full jama and in others from forty to sixty per cent. In the same year was enacted the Central Provinces Land Revenue Revision Mahals Act, XXVI of 1947. The land assessment on malguzari villages was it is alleged, raised to 75 per cent. from 45 to 50 per cent. of malguzari assets. This was done without recourse to a settlement. In 1948 came the Central Provinces and Berar Revocation of Exemptions Act, XXXVII of 1948, making persons exempted from payment of land revenue liable for it. This legislation, it is urged, resulted in the reduction of the net income of the proprietors to a large extent. On the 11th October, 1949, the impugned Act was introduced in the Madhya Pradesh Assembly. It was referred to a Select Committee on the 15th October, 1949; the Select Committee reported on the 9th March, 1950, the report was published on the 17th March, 1950, and was taken into consideration on the 29th March, 1950, by the Assembly. On the 30th March, 1950, the opposition moved for the circulation of the Bill. The circulation motion was negatived on the 3rd April 1950, and the Bill was discussed clause by clause were passed between the 3rd of April of the 5th of April. On the 5th April. On the 5th April, 1950, the member in charge of the Bill moved as follows :- "Speaker Sir, I now move that the Central Provinces & Berar Abolition of Proprietary Rights (Estates, Mahals Alienated Lands) Bill, 1949 (No. 64 of 1949) as considered by the House be passed into law." The Hon'ble the Speaker said : Motion moved that the Central Provisions & Berar Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Bill 1949 (No. 64 of 1949) as considered by the House be passed into law," 8. A number of speeches were made at the third reading stage. The opposition was in a hopeless minority. The trend of the speeches was of a laudatory character, each member hailing the Bill as a peace of great reform in the Madhya Pradesh land system. No motion of a dilatory nature was tabled and as a matter of fact there was no opposition whatsoever to the passing of the Bill. Some members expressed the opinion that the provisions of the Act did not go far enough, others thought that the provisions as to compensation should have been more liberal, but there was none who was for rejecting the Bill as it stood. The report of the proceedings of the 5th April, 1950, does not contain the note that the motion that the Bill be passed into law was carried 9. The omission of this note in the proceedings of the proceedings of the legislature has furnished a basis for the argument that the Bill was never passed into law. The proceedings were printed on the 21st June, 1950, and were signed by the Speaker on the 1st October 1950. The original Bill that was submitted to the President for his assent was printed on the 29th April, 1950, and it bears on it the certificate of the Speaker dated the 10th May, 1950, stating that the Bill was duly passed by the legislature on the 5th April, 1950. This certificate was signed by the Speaker a considerable time ahead of his signing the proceedings. The Act, as already stated, received the assent of the President on the 22nd January, 1951, and was published in the Madhya Pradesh Gazette on the 26th January, 1951, as Madhya Pradesh Act I of 1951. 10. Against the constitutionality of this Act a number of petitioners were made in the High Court of Nagpur but they were all dismissed by that court on the 9th April, while this petition along with some others was pending in this Court. 11. The preamble of the Act is in these terms :- " An Act to provide for the acquisition of the rights of proprietors in estates, mahals, alienated villages and alienated lands in Madhya Pradesh and to make provision for other matters connected there with". 12. The legislation clearly falls within entry 36 of List II of the Seventh Schedule of the Constitution. The Madhya Pradesh Legislature had therefore undoubted competence to enact it. The Act is divided into eleven chapters and three schedules. Chapter II deals with the vesting of proprietary rights in the State and states the consequences of the vesting. Section 3 is in these terms :- "Save as other wise provided in this Act, on and from a date to be specified by a notification by the State Government in this behalf all proprietary rights in an estate, mahal alienated village or alienated land, as the case may be, in the area specified in the notification vesting in a proprietor of such estate, mahal, alienated village, alienated land, or in a person having interest in such proprietary right through the proprietor, shall pass from such proprietor or such other person to and vest in the State for the purposes of the State free of all encumbrances..........". 13. Section 4 provides that after the publication of the notification under Section 3, all rights titles and interest vesting in the proprietor or any person having interest in such proprietary right through the proprietor in such area including land (cultivable or barren), grass land, scrub jungle, forest trees fishes, wells, tanks ponds water-channels, ferries, pathways, villages sites, hats bazars and meals; and in all subsoil including rights if any in mines and minerals, whether being worked or not, shall cease and be vested in the State for purposes of the State free of all encumbrances; but that the proprietor shall continue to retain the possession of his homestead, home-farm land, and in the Central Provisions, also of land brought under cultivation by him after the agricultural year 1948-49 but before the date of vesting. The proprietor is entitled to recover any sums which became due to him before the date of vesting by virtue of his proprietor rights. All open enclosures used for agricultural or domestic purposes, all buildings, places of worship wells situated in and trees standings on lands included in such enclosures or house sites etc. continue to remain in possession of proprietor and are to be settled with him by the State Government on such terms and conditions as it may determine. Similarly, certain private wells, trees tanks and groves continue to remain in possession of proprietor or other person who may be interested in them. Chapter III deals with the assessment of compensation. It is provided in section 8 that the State Government shall pay compensation to the proprietor in accordance with the rules contained in Schedule I. Besides the amount so determined, Government has to pay compensation for any amount spent on the construction of a tank or well used for agricultural purposes, where such tank or well vests in the State Government. In addition to all these amounts, the State Government has pay compensation for lands within the area of a municipality or cantonment in accordance with the rules contained in Schedule II. The Compensation for divestment of proprietary rights becomes due from the date vesting and it is enacted that it shall carry interest at the rate of two and a half per cent. per annum from the date of vestings to the date of payment. Section 9 provides as follows :- " The compensation payable under section 8, may, in accordance with the rules made in this behalf, be paid in one or more of the following modes, namely :- (i) in cash in full or in annual instalments not exceeding thirty; (ii) in bonds either negotiable or not negotiable carrying interest at the rate specified in sub-section (4) of section 8 and of guaranteed face value maturing within a specified period not exceeding thirty years." 14. The other sections in this chapter deal with interim payment and appointment of compensation officers and lay down the procedure for the determination of compensation. Schedule I provides that the amount of compensation in the Central Provinces and in Berar shall be ten times the net income determined in accordance with the rules mentioned in the schedule. In merged territories the compensation is payable on a sliding scale varying from two times to ten times the net income. Schedule II lays down the measure of compensation on a scale varying from five to fifteen times the assessment on the land as specified in the schedule. Section 2 of the Schedule I provides for the calculation of the gross income by adding the amount of income received by a proprietor from the aggregate of the rents from the tenants as recorded in the jamabandi for the previous agricultural year; the siwai income that is income from various sources such as jalkar, bankar, phalkar, hats, bazars, melas grazing and village forest calculated at two times the income recorded in the current settlement of 1923; and the consent money on transfer of tenancy lands-the average of transactions recorded in the village papers for ten years preceding the agricultural year in which the date of vesting falls. The schedule also provides the method of determination of the gross income of a mahal as well as of an alienated village or alienated land separately. It also provides for the determination of this income in the case of mines and forests. The method suggested for assessing the net income is that out of the gross income the following items have to be deducted, i.e. assessed land revenue, sums payable during the previous agricultural year on account of cesses and local rates, the average of income-tax paid in respect of income received from big forests during the period of thirty agricultural years preceding the agricultural year in which the relevant date falls and cost of management varying from 8 to 15 per cent. of the gross annual income on incomes varying from Rs. 2,000 to Rs. 15,000. It is further provided that not withstanding anything contained in sub-rule (2) the net incomes shall in case be reduced to less than five per cent. of the gross income. Chapter IV deals with certain incidental matters in respect of the determination of the debts of proprietors. Its provisions are analgulus to the provisions of Debt Conciliation or Relief of Indebtedness Act. It is provided in Chapter V how the actual amount of compensation is to be determined and paid. Chapter VI deals with that part of Madhya Pradesh which is defined as Central Provinces in the Act. It is provided herein that a proprietor who has been divested of his estate will have malik-makbuza rights in his homenfarm lands. Absolute occupancy tenants and occupancy tenants can also acquire malik - makbuza rights. Provision is made for reservation of grazing lands and for the collection of land revenue. Similar provisions are made in Chapter VII in respect of management and tenures of land in the merged territories. Chapter VIII deals with management and tenures of lands in Berar. Separate provision has been made for the determination of compensation payable to lessees of mines and minerals. Under the provisions of section 218 of the Central Provinces Land Revenue Act and Section 44 of the Berar Land Revenue Code there is a presumption that all mines and minerals belong to the State and the proprietary rights in them could be granted by the State to any person. Wherever a right of minerals has been so assigned, provision has been made regarding its acquisition and the consequences as resulting from such acquisition. The Act provides for the giving of rehabilitation grant to expropriated proprietors within a certain range provided for in Schedule III. The last chapter in the Act deals with miscellaneous matters including the power of making rules. 15. The main purpose of the Act is to bring the actual tillers of the soil in direct contract with the State by the elimination of intermediary holders. In short, the Act aims at converting malguzari into ryotwari land system. In also aims at giving to the gram panchayats the management of common lands freed from the grip of proprietors and contemplates the establishment of self-government for the villages. The provisions of the Act in respect of payment of compensation, though they do not in any way provide for an equivalent in money of the property taken and in that sense may not be adequate cannot be called illusory. This Act is a definite improvement on the Bihar Act; it leaves the arrears of rents due in the hands of the proprietors and does not operate artificially to reduce the net income by any device. It also provides that in no case the net income should be reduced below five per cent of the gross income. The result is that in every case some amount of money becomes payable by the State by way of compensation to the proprietor and in no case does the compensation work into a negative sum or to a mere zero or a minus figure. In other respects the provisions of the Act in regard to compensation follow the pattern which is common to all zamindari legislation, which is to inflate the amount of expenditure and deflate the actual income. The siwai income from jalkar, bankar, etc. and from village forests is calculated at two times the siwai income recorded in the settlement made in 1923. This is Act was passed in 1951. The siwai income recorded in the year 1923 is appreciably less than the actual income of the properties from these sources in 1951. Similarly the income from consent money has to be calculated by taking the average income for ten years preceding the date of vesting and not the actual income as in the case of rent realized during the previous agricultural year. The expenditure has been inflated by taking in respect of the big forests the average income-tax paid during the period of thirty agricultural years. No agricultural income-tax existed during most of this period. It only came into existence recently. The cost of management has been calculated at a flat rate of eight to fifteen per cent. There can therefore be no doubt that the principles laid down for determination of compensation cannot be called equitable and they do not provided for payment of just compensation to the expropriated proprietor. 16. The Petitioner's case is that under the formula stated in the Act, a compensation of 25 lakhs which would be due to him on he basis of the value of property taken, has been reduced to a sum of Rs. 65,000 and is payable in thirty unspecified instalments and therefore it is purely nominal and illusory. This figure of Rs. 65,000 is arrived at by the following process :- 18. The first and the main objection to the validity of the Act taken by the learned counsel is that the Bill was never passed into law. As already indicated, this objection is founded on the omission from the proceedings of the Madhya Pradesh Legislative Assembly dated the 5th April, 1950, of a statement to the effect that the Bill was put to the House by the speaker and was passed by it. Reference was made to rules 20,22, 34 and 115 of the rules regulating the procedure of the legislature framed under the Government of India Act, 1935, in the year 1936, which provides as follows :- "20 (1). A matter requiring the decision of the Assembly shall be decided by means of a question put by the Speaker on a motion made by a member 22. After a motion has been made, the speaker shall read the motion for the consideration of the Assembly. 34 (1) Votes may be taken by voices or division and shall be taken by division if any member so desires. The Speaker shall determine the method of taking votes by division. (2) The result of a division shall be announced by the Speaker and shall not be challenged. 115 (1) The Secretary shall cause to be prepared a full report of the proceedings of the Assembly at each of its meetings and publish it as soon as practicable. (2) One impression of this printed report shall be submitted to the Speaker for his confirmation and signature and when signed shall constitute the authentic record of the proceedings of the Assembly." 19. It was urged that the authentic report of the proceedings of the Assembly was conclusive on the point, that the Bill was not put to the Assembly by means of a question and was not voted upon, and hence it could not be said to have been passed by the legislature. It was said that even if there was no open opposition to the passing of the Bill, it was possible that if it was put to the Assembly, it might have rejected it. As already pointed out, the proceedings were signed by the Speaker on the 1st October, 1950, while the certificate that the Bill was passed was recorded by him on the original Bill when it was submitted to the President for his assent on the 10th May, 1950. The certificate of the Speaker is conclusive on the point that the Bill was passed by the legislature (Vide Craies' Statute Law, 4th Edn., p. 36). It seems to me that by an oversight it was not recorded in the proceedings that the mission was put to and passed by the House and the Speaker while signing the proceedings six months after the event failed to notice the error. There can be no about that the sense of the House on the 5th April, 1950, was for passing the Bill and there was no one present who was for rejecting it. The motion before the House that the Bill be passed. The Speaker could not possibly have appended a certificate on a Bill that it was passed by the House if it had not been so passed. There are no grounds whatever for doubting the correctness of his certificate. In my opinion the contention raised that the Bill was not passed into law fails and must be rejected. 20. Next it is contended that articles 31-A and 31-B have no application to this Bill as it never became law by following the procedure prescribed in the Constitution and that those articles have only application to a Bill that had becomes an Act. The Legislature of Madhya Pradesh consists of the Governor and the Legislative Assembly. It was said that even if the Bill was passed by the Legislative Assembly, it was not assented to by the Governor but was straightway sent to the President and that without the assent of the Governor the Bill could not become law despite the fact that it was assented to by the President and it was pointed out that sub-clause (3) of article 31 of the Constitution speaks of "law" being reserved for the consideration of President and not merely a " Bill". This argument, in my opinion, has not much force having regard to the terms and scope of article 200. The Governor under that article could assent to a Bill or could reserve it for the consideration of the President at his option. The Governor being empowered to reserve the Bill for the consideration of the President and this having been done, it was for the President either to assent to the Bill or to withhold his assent. The President having given his assent, the Bill must be held to have been passed into law. It does not seem to have been intended that the Governor should give his assent to the Bill and make it a full-fledged law and then reserve it for the President's consideration so that it may have effect. 21. Mr. Somayya pressed the point that the President could not perform both his functions under article 200 and article 31(4) concerning this Bill at one and the same time, that first the procedure laid down in article 200 for the passing of the Bill in to law should been followed, i.e. the Governor should have either assented to the Bill or should have reserved it for the consideration of the President and if it was so reserved, the President should then have given his assent and the Bill would then become law, that after the Bill had become law, the Governor should again have reserved this Bill for the consideration of the President as required by the provisions of article 31(3) in order to make it effective law against the provision of article 31(2) and that if the President then gave his assent, the law so assented to could not be called in question in a court of law. It was said that only in case where this double procedure is followed that it could be said that the President had satisfied himself that the law did not contravene the provisions of article 31(2). In my opinion, the argument is fallacious. It would be a meaningless formality for the President to give his assent to the same Bill twice over. I cannot see why the President cannot perform both the duties entrusted to him by articles 200 and 31(3) and (4) at one the same time. He is not disabled under the Constitution from applying his mind to such a Bill once and for all to see whether it has to be passed into law and whether it fulfils the requirements of article 31(2). The President's assent therefore to the Bill attracts the application of articles 31-A and 31-B to it and deprives persons affected by it of the rights guaranteed in Part III of the Constitution. 22. The Provisions of article 31(4) support the view of the learned Attorney-General that what has to be sent to the President is the Bill as passed by the legislature and not the Bill after it has been assented to by the Governor. The article reads thus :- "If any Bill pending at the commencement of this Constitution in the Legislature of a State has, after it has been passed by such Legislature been reversed for the consideration of the President and has received his assent, them notwithstanding anything in this Constitution, the law so assented to shall not be called in question in any court on the ground that it contravenes the provisions of clause (2)." 23. In this context the word "Legislature" means the House or Houses of Legislature and does not include the Governor with in its ambit. This word has not the same meaning in all the articles. In some articles it means the Governor as well as the Houses of Legislature, while in a number of other articles it only means the House or Houses of Legislature. Article 31(4) means that if any Bill contravening the provisions of clause (2) of article 31 is passed by the House or Houses of Legislature but is reserved for he consideration of the President and receives his assent, then it shall become law, not open to any objection on the ground of such contravention. 24. Next it was contended that the obligation to pay compensation was implicit in the legislative power contained in entry 36 of List II and that the Act was unconstitutional as it had provided for acquisition of zamindaris without payment of compensation, the provisions relating to it being illusory. This contention fails for the reasons given in my judgment in the Bihar case. Moreover, the compensation provided for in the impugned Act cannot be dubbed as illusory. All that can be said is that it is grossly inadequate and it is not the equivalent of the value of the property acquired, but this issue is not justiciable in view of the provisions of article 31(4). This Bill was pending at the commencement of the Constitution, it was reserved for the consideration of the president and the President gave his assent to it. The conditions for the application of article 31(4) thus stand fulfilled. Besides the obstacle of article 31(4). two further hurdles, viz., of articles 31-A and 31-B introduced by the amendments to the Constitution, stand in the way of the petitioner and bar an enquiry into the question of the quantum of compensation. 25. The contention that there is no public purpose behind the impugned Act has also to be repelled on the same reasoning as given by me in the Bihar case. The purpose behind the Act is to establish direct contact between tillers of the soil and the Government and to eliminate the intermediaries, as in the view of the Government this is for the welfare of the society as a whole. It is also the purpose of the Act to confer malik maqbuza status on occupancy tenants and improve their present position and to vest management of village affairs and cultivation in a democratic village body. It is too late in the day to contend that reform in this directions is not for general public benefit. 26. The next argument of Mr. Somayya that the Act is a fraud on the Constitution in that in legislating under entry 42 of List III, it has legislated for non-payment of compensation has also to be repelled, for the reasons given in the Bihar case. Under the provisions of this Act compensation can in no case work out into a mere nothing. On the other hand, in every case some amount of compensation is payable and in the majority of cases it is also not inadequate, Mr. Somayya contended that payment of Rs. 65,000 as compensation to his client for property worth twenty-five lakhs of rupees was purely illusory. The assessment of value by the petitioner cannot be taken at its full value. It cannot at any rate be held that legislation which provides for the payment of a sum of Rs. 65,000 provides for no compensation. The amount of instalments, if payment is to be in instalments, is bound to be fixed by the rules made under the statute and in case the rules are so made that they amount to an abuse of the exercise of that power, they can always be challenged on that ground. 27. The argument that the Act is bad inasmuch as it delegates essential legislative power to the executive is negatived for the reasons given in the Bihar case. 28. A point was raised that the constitutional amendments in articles 31-A and 31-B could not affect the petitioner's guaranteed rights contained in Part III of the Constitution in so far as the eighty malguzari villages were concerned, because those mahals did not fall within, the ambit of the word "estate" as defined in article 31-A. In sub-clause (2) (a) the definition is in these terms :- "The expression 'estate' shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area, and shall also include any jagir, inam or muafi or other similar grant." Section 2 (3) of Act II of 1917, C. P. Land Revenue Act, defines the expression "estate" thus :- "an estate as declared by the State Government." 29. The learned Advocate - General conceded that these villages are not within the ambit of this definition but he contended that they are within the scope of the definition of the expression given in article 31-A, as mahals in Central Provisions are local equivalents of the expression "estate, though not so declared by the Act. There is nothing on the record to support this contention. The contention that those eighty mahals are not "an estate"and are thus excluded from the reach of article 31-A does not, however very much advances the petitioner's case, because the hurdles created in his way by articles 31-B and 31(4) stand in spite of the circumstances that article 31-A has no application. It was contended that article 31-B was merely illustrative of the rule stated in article 31-A and if article 31-A had no application, that article also should be left out of consideration. Reference was made to the decision of the Privy Council in King Emperor v. Sibnath Banerjee ((1945) L.R. 72 I.A. 241; [1945] F.C.R. 195), on the construction of sub-sections (1) and (2) of section 2 of the Defence of India Act. The material portion of section 2 considered in that case runs thus :- " (1). The Central Government may, be notification in the official gazette, make such rules as appear to it to be necessary or expedient for securing the defence of Birth India, the Public safety, the maintenance of public order or the efficient prosecution of war, or for maintaining supplies and services essential to the life of the community. (2) without prejudice to the generality of the powers conferred by sub-section (1), the rule may provide for, or may, empower any authority to make orders providing for all any of the following matters, namely.............." Their Lordships made the following observations about the meaning to be given to the language of sub-section (2) :-- " the function of sub - section (2) is merely an illustrative one; the rule-making, power is conferred by sub-section (1), and 'the rules' which are referred to in the opening sentence of sub-section (2) are the rules which are authorised by, and made under, sub-section (1); the provisions of sub-section (2) are not restrictive of sub-section (1), as indeed is expressly stated by the words 'without prejudice to the generality of the power conferred by sub-section (1)'". Article 31-B is in these terms :- " Without prejudice to the generality of the provisions continued in article in article 31-A none, of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void....... on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of the court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force." 30. On the basis of the similarity of the language in the opening part of article 31-B with that of sub-section (2) of section 2 part of the Defence of India Act, "without prejudice to the generality of the provisions contained in article " 31-A", it was urged that article 31-B was merely illustrative of article 31-A and as the latter was limited in its application to estates as defined therein, article 31-B was also so limited. In my opinion, the observations in Sibnath Banerjee's case ((1945) L.R. 72 I.A. 241; [1945] F.C.R. 195), far from supporting the contention raised, negatives it. Article 31-B specifically validates certain Acts mentioned in the schedule despite the provisions of article 31-A and is not illustrative of article 31A but stands independent of it. The impugned Act in this situation qua the acquisition on the eighty malguzari villages cannot be questioned on the ground that it contravenes the provisions of article 31(2) of the Constitution or any of the other provisions of Part III. The applicability of article 31(4) is not limited to estates and its provisions save the law in its entirety. 31. This petition is accordingly dismissed but in the circumstances I make no order as to costs. Petition No. 317 of 1951. Mr. Bindra, who appeared for the petitioner placed reliance on the observations of Holmes C.J. in Communications Assns. v. Douds (339 U.S. 382, 384), viz., " that the provisions of the Constitution are not mathematical formulas having their essence in their form; they are orgnic living institutions transplanted from English soil. Their significance is vital, not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth", and contended that if the Constitution of India was constructed in the light of these observations, then despite the express provisions of article 31(2) it would be found that there is something pervading it which makes the obligations to pay real compensation a necessary incident of the compulsory acquisition of property. 32. It was said that right to compensation is implied in entry 36 List II of the Seventh Schedule and that article 31(2) does not confer the right but merely protects it. Mr. Bindra merely tried to annotate the arguments of Mr. Das but with no better result. The dictum of Holmes C.J. has no application to the construction of a Constitution which has in express terms made the payment of compensation obligatory for compulsory acquisition of property, which again in express terms by an amendment of it, has deprived persons affected by the impugned Act of this right. 33. One further point taken by Mr. Bindra was that "nationalization" of land is a separate head of legislation and that "acquisition in general" does not fall within the scope of entry 36 List II of the Seventh Schedule. This proposition was sought to be supported by reference to a passage from Stephen's Commentaries on the Laws of England, Vol. III, p. 541. The passage, however read in its entirety, negatives the contention. It may be mentioned that under powers of compulsory acquisition a number of properties have been nationalized in England and other countries. 34. Lastly, it was urged that the legislation in question was not enacted bona fide inasmuch as in 1946 the legislature having passed a resolution to end zamindaries, proceeded to enact laws with the purpose of defeating the constitutional guarantees regarding payment of compensation by various devices. As a first step in this direction the revenue was enhanced in order to reduce the gross income of the zamindars, then other Acts mentioned in the earlier part of the main judgment were enacted with the same end in view. In my opinion this argument is void of force. It was within the competence of the Government in exercise of its governmental power to enhanced land revenue, to withdraw exemption of land revenue, wherever those had been granted, and to enact other laws of a similar character. There is no evidence whatsoever that all these enactments were enacted with a fraudulent design of defeating the provisions of payment of compensation contained in the Constitution. The Constitution had not even come into force by the time that most of these statutes were enacted. 35. The petition is therefore dismissed. I however, making no order as to costs. Petition No. 286 of 1951 36. This petition is concluded by my decision in Petition No. 166 of 1951 except as regards one matter. The properties belonging to the petitioner and acquired under the statute were originally situate in an Indian State which became subsequently merged with Madhya Pradesh. It was contended that by the terms of the covenant of merger those properties were declared as the petitioner's private properties and were protected from State legislation by the guarantee given in article 362 of the Constitution and hence the impugned Act was bad as it contravened the provisions of this article. Article 362 is in these terms :- "In the exercise of the power of Parliament or of the legislature of a State to make laws or in the exercise of the executive power of the Union or of a State due regard shall be had to the guarantee or assurance given under any such covenant or agreement as is referred to in clause (1) of article 291 with respect to the personal rights, privileges and dignities of the Ruler of an Indian State." 37. Article 363 takes away the jurisdiction of the courts regarding disputes arising out of treaties agreements, covenants, engagements, sanads etc. 38. It is true that by the covenant of merger the properties of the petitioner became his private properties as distinguished from properties of the State but in respect of them he is no better position than any other owner possessing private property. Article 362 does not prohibit the acquisition of properties declared as private properties by the covenant of merger and does not guarantee their perpetual existence. The guarantee contained in the articles is of a limited extent only. It assures that the Rules' properties declared as their private properties will not be claimed as State properties. The guarantee has no greater scope than this. That guarantee has been fully respected by the impugned statue as it treats treats those properties is their private properties and seeks to acquire them on that assumption. Moreover it seems to me that in view of the comprehensive language of article 363 this issue is not justiciable. 39. This petition is accordingly dismissed but there will be no order of costs. 40. Petitions Nos. 228, 230, 237, 245, 246, 257, 280, 281, 282, 283, 284, 285, 287, 288 and 289 of 1951. 41. In all these fifteen petitions, Mr. Swami appeared for the petitioners. Seven of these are by zamindars from Madhya Pradesh who are owners of estates. The petitioner in Petition No. 246 also owns certain malguzari villages. Petitioner in Petition No. 237 is a malguzar of eighteen villages but owns no estate. Petitions Nos. 280 to 285 and 257 relate to merged territories. The petitioner in Petition No. 282 was ruler of a State (Jashpur) and the petition concerns his private properties. Petitioners in Petitions Nos. 283, 284 and 285 are Ilakadars and in Petitions Nos. 280 and 285 they are mafidars. Petitioner in Petition No. 281 is a Thikedar i.e., revenue farmer of three villages. Mr. Swami reiterated the contention raised by Mr. Somayya that the Act was not duly passed by the legislature. For the reasons given in Petition No. 166 of 1951, I see no force in this contention, Mr. Swami also reiterated Mr. Bindra's contention that the legislation was not bona fide. For the reasons given in Petition No. 317, this contention is not accepted. Mr. Swami Vehemently argued that the Government has by this Act become a super- zamindar, that there is no public purpose behind the Act, that there is no change in the existing order of things, that the Act has achieved nothing new, the tenants remain as they were, the malikan cabza were also already in existence, that acquisition of that status by occupancy tenants was possible under existing statutes and that they had also the power of transfer of their holdings. In my opinion, the argument is based on a fallacy. As already stated, the purpose of the Act is to bring about reforms in the land tenure system of the State by establishing direct contact between the tillers of the soil and the Government. 42. These petitions are accordingly dismissed. I make no order of costs in them. 43. Mr. Mukherji who appeared in this petition merely adopted the arguments taken in other petitioners. For the reasons given therein this petition is also dismissed, but I make no order as to costs in it. Petition No. 487 of 1951. 44. Mr. Jog appeared in this petition and raised the same points as in other petitions. This petition also fails and is dismissed. There will be no order as to costs. Mukherjea, J. 45. I agree with my Lord the Chief Justice that these petitions should be dismissed. Das, J. 46. The Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act 1950 (Act I of 1951) having on January 22, 1951), received the assent of the President of India a Notification was published in the Madhya Pradesh Gazette of January 27, 1951, fixing March 31, 1951, as the date of vesting of all propriety rights in the State under section 3 of the Act. A number of applications were made under article 226 of the Constitution to the Madhya Pradesh High Court by or on behalf of different persons variously described as Zamindars or Malguzars or Proprietors of "alienated villages" paying for the issue of appropriate writs against the State of Madhya Pradesh prohibiting them from proceeding under the Act the validity of which was challenged on a variety of grounds. Eleven of these applications came up for hearing before a Full Bench of the High Court (B. P. Sinha C.J. and Mangalmurthi and Mudholkar JJ.) and were, on 9th April 1951, dismissed. The High Court certified under article 132(1) that the cases involved a substantial question of law as to the interpretation of the Constitution. No appeal, however, appears to have been actually filed presumably because the present applications under under article 32 had already been filed in this Court. 47. It may be mentioned here that the States of Bihar and Uttar Pradesh also passed legislation for the abolition of zamindar in their receptive States and the validity of those legislations was also contested by the proprietors affected thereby. While the High Court of Allahabad upheld the validity of the Uttar Pradesh Act, the High Court of Patna held the Bihar Land Reforms Act, 1950 to be unconstitutional only on the ground that it offended the fundamental right of equal protection of the law guaranteed by article 14 of the Constitution. In the circumstances, the Constituent Assembly passed the Constitution (First Amendment) Act, 1951, by section 4 and 5 of which two new articles, namely, article 31-A and article 31-B were inserted into the Constitution. A new schedule called the Ninth Schedule specifying 13 several Acts and Regulations including the Madhya Pradesh Act, I of 1951, was also added to the Constitution. The legal validity of the Constitution (First Amendment) Act, 1951, which was challenged, has however, been upheld by this Court and all courts must give effect to the two new articles which are now substantive parts of our Constitution. Articles 31-A relates back to the Constitution and article 31-B to the respective dates of the Acts and Regulations specified in the Ninth Schedule. 48. The present bunch of petitions has been filed in this Court under article 32 of the Constitutional challenged the validity of the Madhya Pradesh Act and praying for appropriate writs, directions and orders restraining the State of Madhya Pradesh from acting under that Act and disturbing the petition title to, and possession of their respective estates, villages or properties. Learned counsel appearing for the different petitioners accepted the position that as a result of the Constitutional amendments the impugned Act has been removed from the operation of the provisions of the Part III of the Constitution and that consequently the attract on the Act will have to be founded on some other provisions of the Constitution. Mr. B. Somayya appearing for the petitioner in Petition No. 166 of 1951 (Visheshwar Rao v. The State of Madhya Pradesh) challenged the validity of the Act of the following grounds :- (a) that the Bill itself itself was not passed by the Madhya Pradesh Legislature; (b) that the procedure laid down in article 31(3) had not been complied with; (c) that the Madhya Pradesh Legislature was not competent to enact the said Act, in as much as - (i) the acquisition sought to be made under the Act is not for the a public purpose, and (ii) there is no provision for payment of compensation in the legal sense; (d) that the Act constitutes a fraud on the Constitution; (e) that the Act is unenforceable in that it provides for payment of compensation by instalments but does not specify the amount of the instalments; (F) that the Act has delegated essential legislative functions to the executive Government; (g) that the Act in so far as it purports to acquire the Malguzari villages or Mahals is not protected by article 31-A. Learned counsel for other petitioners adopted and in some measure reinforced the arguments of Mr. B. Somayya. Re. (a) : In dealing with this ground of objection it will be helpful to note the course which the Bill took before it was put on the Statute Book. There is no dispute as to the correctness of the dates given to us by counsel for the petitioners. The Bill was introduced in the Madhya Pradesh Assembly on 11th October, 1949. It was referred to a Select Committee on 15th October 1949. The Select Committee made its Report on 9th March, 1950, which was presented to the Assembly on 29th March, 1950. The Assembly considered the Bill in the light of the Report between that date and 5th April 1950, during which period the amendments proposed by the Selected Committee were moved and disposed of. It appears from the Official Proceeding of the Madhya Pradesh Legislative Assembly of 5th April, 1950 that the after the last amendment had put to the House and accepted, the Hon'ble Minister for Education (Sri P. S. Deshmukh) moved that the Bill be passed into law and and delivered a short speech inviting the members to finally pass the Bill. The Speaker then read out the motion. Then followed speeches by 11 speakers congratulating the Government and some of the members who took an active part in carrying, through this important measure of land reform and relief to the tillers of the soil. Nobody put forward any reasoned amendment and the trend of the speeches shows that the House accepted the Bill. From the official Report of proceedings it does, not however appear that after the speeches the speaker formally put the motion to the vote or declared it carried. It only shows that the House passed on to discuss another Bill, namely the Madhya Pradesh State Aid to Industries (Amendment) Bill, 1950. The next of the Bill as it emerged through, the House was printed on 29th April, 1950, and Speaker signed a copy of the Printed Bill on 5th May, 1950, and certified that it had been passed by the House and forwarded it to the Governor. By an endorsement on that copy of the Printed Bill the Governor reserved the Bill for the assent of the President and the President, on 22nd January, 1951, signified his assent by endorsing his signature at the foot of that copy of the Printed Bill. The learned Advocate - General has produced the original printed Act signed by the Speaker the Governor and the President. It appears that the official Report of Proceedings of the Legislative Assembly of 5th April, 1950, was printed in June, 1950, and were on 1st October, 1950, signed by the Speaker along with the proceedings of many other meetings of the Assembly. It is to be noted that the Speaker simply signed the printed proceedings without starting one way or the other whether the Bill in question was passed or not. 49. The Objection formulated by learned counsel for the petitioners is founded is founded on the Rules of Procedure framed by the Assembly under section 84 of the Government of India Act, 1953 which were continued in force until new rules were farmed under article 208 of the Constitution. That old rules 22 which required that after at motion was made the Speaker should red the motion for the consideration of the Assembly has been complied with is not disputed. What is contended is that the provisions of old rule 20(1) have not been followed. That rule was in these terms : " A matter requiring the decision of the Assembly shall be decided by means of a question put by the Speaker on a motion made by a member." 50. It is urged that the question that the Bill be passed into law was not to the Assembly under rule 20 and if it was at all put the result of the voting, whether by voices or division, was never announced by the Speaker as required by old rule 34. There being a presumption of regularity attached to all official business the onus is undoubtedly on the petitioners to allege and prove that the procedure prescribed by the rules was not followed. There is no evidence on affidavit by anybody who was present at the meeting of the Assembly held on 5th April, 1950, as to be what actually happened on that date. The petitioners rely only on the absence in the Official Report of proceedings of any mention of the question being put to or carried by the Assembly. The Official Proceedings were prepared and confirmed in terms of old rule 115 which was as follows :- " (1) The Secretary shall cause to be prepared a full report of the proceedings of the Assembly at each of its meetings and publish it as soon as practicable. (2) One impression of this printed report shall be submitted to the Speaker for his confirmation and signature and when signed shall constitute the authentic record of the proceedings of the Assembly." 51. The argument is that the initial onus that was on the petitioners has been quite adequately and effectively discharged by the authentic record of the proceedings of the Assembly and consequently it must be held that the Bill did not actually become law at all. I am not prepared to accept this contention as sound. I have already pointed out that the original printed Act produced before us clearly shows that on 5th May 1950, the Speaker certified that the Bill had been passed by the Assembly. It is pointed out that old rule 87 under which the Speaker certified that the Bill had been passed did not give any finality or conclusiveness to the Speaker Certificate that the Bill had been passed such as is provided for in old rules 34 (2) or 39 (3) and, therefore, the certification under old rule 87 cannot affect the authenticity of the record confirmed and signed by the Speaker under old rule 115. This does not appear to me to be a correct approach to the problem. The question before us is whether as a matter of fact the Bill had duly passed according to the rules. The certification of the Speaker was within a month from 5th April 1950, while the confirmation of the proceedings took place on 1st October, 1950. There can be no doubt that the memory of the Speaker was fresher on the 5th May, 1950, than it was on 1st October, 1950, when he singed a bunch of reports of proceedings. Therefore, as a statement of a fact more reliance must be placed on the certification of the Bill than on the confirmation of the proceedings and it will not be unreasonable to hold that the omission of any mention of the question having been put to and carried by the Assembly was an accidental slip or omission. Further the speeches delivered by the eleven speakers clearly indicate that the stage there was no opposition the Bill. Therefore, putting the question at the end of the third reading of the Bill would have been at best a mere formality. (See May's Parliamentary Practice, 14th Edn.. p. 544). It is after all, a matter for the Speaker to declare the result, The authentication by the Speaker on the printed Act that the Bill was passed involves such a declaration having been duly made. In British Parliamentary practice the Speaker's authentication is taken as conclusive (See Cries' on Statute Law, 4th Ed., p. 36). The Petitioners as I have said, strongly rely on the official Report of the Proceedings. It should, in this connection be borne in mind that article 208 of the Constitution continued the old rules until new rules were framed. It appears that new rules were framed and actually came into force on 8th September 1950, New rule 148 does not reproduce sub-rule (2) of old rule 115 After the new rules came into force it was no longer the duty of the Speaker to confirm the proceedings at all. Therefore the purported confirmation of the proceedings by the Speaker on 1st October 1950, cannot be given any legal validity and the argument founded on authentication under defunct rule 115 (2) must lose all its force. Finally, the irregularity of procedure, if any, is expressly cured by article 212. I am not impressed by the argument founded on the fine distinction sought to be made between an irregularity of procedure and on omission to take a particular step in the procedure. Such an omission in my opinion is nothing more than an irregularity of procedure. In my judgment this ground of attack on the validity of the Act is not well-founded and must be rejected. Re. (b) : Article 31(3) on which this ground of attack is based runs as follows :- (3) No such law as is referred to in clause (2) made by the Legislature of a State Shall have effect unless such law, having been reserved for the consideration of the President, has received his assent." 52. Great, stress is laid on the words "law" and legislatures of a state". It is said that this clause postulates a" law"made by the " Legislature of a State". Reference is then made to article 168 which provides that for every State there shall be a Legislature which shall consist of the Governor and so far as Madhya Pradesh is concerned, of one House, i.e. the Legislative Assembly. The argument is that article 31(3) requires that a " law" must be reserved for the consideration of the President. If a bill Passed by the Assembly is reserved by the Governor for the consideration of the President without giving his own assent thereto, it cannot be said that a " law " is reserved for the consideration of the President, for up to that stage the Bill remains a Bill and has not been passed into law. Therefore, it is urged that after a Bill is passed by the State Assembly, the Governor must assent to it so that the Bill becomes a law and then that law, to have effect, must be reserved for the consideration of the president. This admittedly, not having been done, the provisions of article 31(3) cannot be said to have been complied with and, therefore, the Act cannot have any effect at all. I am unable to accept this line of reasoning. For one thing, it assumes that a Bill passed by the State Assembly can become a law only by the assent of the Governor. That is not so. The procedure to be followed after a Bill is passed by the State Assembly is laid down in article 200. Under that article, the Governor can do one of three things, namely he may declare that he assents to it, in which case the Bill becomes a law, or he may declare that he with holds assent therefrom in which case the Bill falls through unless the procedure indicated in the proviso is followed or he may declare that he reserves the Bill for the consideration of the President in which case the president will adopt the procedure laid down in article 201. Under that article the President shall declare either that he assents to the Bill in which case the Bill will become law or that he withholds assent therefrom, in which case the Bill falls through unless the procedure indicated in the proviso is followed. Thus it is clear that a Bill passed by a State Assembly may become a law if the Governor gives his assent to it or if, having been reserved by the Governor for the consideration of the President, it is assented to by the President. In the latter event happening, the argument of the learned counsel for the petitioners will require that what has become a law by the assent of the President will, in order to be effective, have to be again reserved for the consideration of the President, a curious conclusion I should be loath to reach unless I am compelled to do so. Article 200 does not contemplate a second reservation by the Governor. The plain meaning of the language of article 31(3) does not lead me to the conclusion. The whole arguments is built on the word "law". I do not think that what is referred to as law in article 31(3) is necessarily hat had already become a law before receiving the assent of the President. If that were the meaning the clause would have said " unless such law, having been reserved for the consideration of the President, receives his assent". The words " has received his assent" clearly imply and point to an accomplished fact and the clause read as a whole does not grammatically exclude a law that eventually become a law by having had received the assent to the President. The question whether the requirements of article 31(3) have been complied with will arise only when the State purports to acquire the Property of any person under a law and that person denies that the asserted law has any effect. It is at that point of time that the Court has to ask itself-"is it a law which, having been reserved for the consideration of the President has received his assent" I think it is in this sense that the word " law has been used. In other words, the word "law" has been used to mean what at the time of dispute purpose to be or is asserted to be a law. The language of article 31(4) also supports this interpretation. In my judgment article 31(3) on its true interpretation, does not require that the Governor must first assent to the Bill passed by the Assembly so as to convert it into a law and then reserve that law for the consideration of the President. I have already pointed out that article 200 does not contemplate a second reservation which will be necessary if initially the Governor instead of himself assenting to the Bill had reserved it for the consideration of the President. In my opinion there is no substance in the second objection which must, therefore, be over ruled. Re. (c) (d) (e) and (f) : Similar heads of objections were formulated and argued at considerable length by Mr. P. R. Das in the Bihar appeals and learned counsel appearing for the petitioners in the President proceedings have adopted the same. Shortly the argument is that although the impugned Act cannot in view of articles 31(4) and 31-B be called in question on the ground that it takes away or abridge or is inconsistent with the fundamental rights, it can, nevertheless, be challenged on other grounds. Thus it is open to the petitioners to show that the Legislature had no power to enact the law or that it offends against any other provision of the Constitution. Mr. N. S. Bindra and Mr. Swami have sought to reinforce those argument by citing certain further passager from certain text books and reported decisions. The Provisions of the impugned Act have been analysed and summarised by Mahajan J. in the judgment just delivered by him and it is not necessary for me to recapitulate the same. Nor is it necessary for me to formulate in detail the various heads of arguments founded principally on what is said to be the legislative incompetence of the Madhya Pradesh Legislature to enact the impugned Act in view of the language of legislative topics set forth in entry 36 in List II and entry 42 in List III or on the ground that the Act is a fraud on the Constitution or that it delegates essential legislative power to the executive Government which is not permissible. Suffice it to say that for reasons stated in my judgments in the Bihar appeals I repeal these heads of objections. If anything the existence of a public purpose is more apparent in the Madhya Pradesh Act than in the Bihar Land Reforms Act. Further the compensation provided in the Madhya Pradesh Act is more liberal than that provided in the Bihar Act, for under clause 4 (2) of Schedule I the net income can in no case be reduced to less than 5 per cent. of the gross income. In any event the Act cannot, for reasons stated by me in my judgment in the Bihar appeals, be questioned on the ground of absence of public purpose or of compensation. The fact that the Madhya Pradesh Legislature passed several Acts one after another, e.g. C. P. Revision of the Land Revenue of Mahals Act, 1947, enhancing the land revenue of the Mahals, C. P. Revision of Land Revenue of Estates Act 1939 and C. P. Revision of Land Revenue of Estates Act, 1947, increasing the land revenue of the estates, Revocations of Exemptions Act, 1948, revoking the exemptions from land revenue enjoyed by certain proprietors and finally the impugned Act, has been relied on as evidence of a systematic scheme for expropriating the zamindars and it is contended that such a conduct clearly amounts to a fraud on the Constitution. I am unable to accept this line of reasoning for the series of legislation referred to above may well have been conceived and undertaken from time to time in utmost good faith. It is true that section 9 of the Acts does not specially indicate when the instalments will began or what the amount of each instalments will be but the Section clearly contemplates that these details should be worked out by rules to be framed under section 91 of the Act. Further under section 10 the State Government is bound to direct payment of an interim compensation amounting to one-tenth of the estimated amount of compensation if the whole amount is not paid within a period of six months from the date of vesting of the property in the State. I see no improper delegation of legislative power at all. In my opinion all these heads of objections must be rejected. Re (g) : The last ground of attack is that the 80 Malaguzari Mahals belonging to the petitioner in Petition No. 166 of 1951 are not estates and, therefore, the impugned Act in so far as it purports to acquire the Malguzari Mahals is not a law which is protected by article 31-A. Learned Advocate-General of Madhya Pradesh concedes that these Malguzari Mahals are not estates within the meaning of the C. P. Land Revenue Act but contends that the word "estate" has been used in a larger sense in article 31-A. In any case the impugned Act is protected by article 31-B. I do not think it necessary to discuss the meaning of the word "estate" as used in article 31-A for in my opinion, the argument of the learned Advocate - General founded on article 31-B is well-founded and ought to prevail. Mr. B. Somayya has drawn our attention to the words "without prejudice to the generality of the provisions of article 31-A occurring in the beginning of article 31-B and contended that the interpretation put upon these words by the Judicial Committee in Shibnath Banerjee's case ((1945) L.R. 72 I.A. 241; [1945] F.C.R. 195), should be applied to them. I do not see how the Principles enunciated by the Judicial Committee can have any possible application in the interpretation of article 31-B. Article 31-B is neither illustrative of nor dependant on article 31-A. The words referred to were used obviously to prevent any possible argument that article 30-B cut down the scope or ambit of the general words used in article 31-A. 53. A question was raised by Mr. Asthana appearing for the Ruler of Khairagarh who is the petitioner in Petition No. 268 of 1951. Khairagarh is one of the States which formerly fell within the Eastern States Agency. On 15th December, 1947, the Ruler entered into a covenant of merger. In that covenant the properties in question were recognised as the personal properties of the Ruler as distinct from the State Properties. Reference is made to article 362 which provides that in the exercise of the per of Parliament or of the Legislature of a State to make laws or in the exercise of the executive power of the Union or of a State, due regard shall be had to the guarantee or assurance given under any such covenant or agreement as is referred to in clause (1) of article 291 with respect to the personal rights privileges and dignities of the Ruler of an Indian State. It is said that the impugned Act is bad as it contravenes the above provisions. The occur to me several answers to this contention. The guarantee or assurance to which due regard is to be had is limited to personal rights, privileges and dignities of the Ruler qua a Ruler. It does not extend to personal property which is different from personal rights. Further this article does not import any legal obligation but is an assurance only. All that the covenant does is to recognise the title of the Ruler as owner of certain properties. To say that the Ruler is the power of certain properties is not to say that those properties shall in no circumstances be acquired by the State. The fact that his personal properties are sought to be acquired on payment of compensation clearly recognises his title just as the titles of other proprietors are recognised. Finally, the jurisdiction of the Court to decide any dispute arising out of the covenant is barred by article 363. 54. In my judgment, for reasons stated above and those stated in my judgment in the Bihar appeals, these petitioners must be dismissed. Chandrasekhara Aiyar, J. 55. I have nothing useful to add and I agree with the orders made by my Lord the Chief justice and my learned brothers. 56. Petition dismissed.

Author: Mahajan

Visweshwar Rao vs The State Of Madhya Pradesh on 2 May, 1952

Supreme Court of India

Central Information Commission CIC/AD/A/09/00201 Dated March 6, 2009 Name of the Applicant : Mr.K.Ramagopal Name of the Public Authority : BSNL, Hyderabad Background1. The Applicant filed a RTI application dt.11.7.08 with the CPIO, BSNL, Hyderabad. He requested for the following information: i) Marks of LDCE TES Gr.B for Paper I & II (from JTO to SDE) held on 15.7.07 i) Xerox copies of answered sheets for Paper I & II of TES Gr.B - LDCE The ACPIO replied on 14.8.08 stating that the disclosure of evaluated answer sheets would render the system of conduct of examinations unworkable in practice. Also, the disclosure will endanger the life or physical safety of the persons associated with the examination process. He also added that the information sought is regretted in accordance with the full bench decision of the CIC and u/s 8(1)(g) of the Act. The applicant filed an appeal dt.20.9.08 with the Appellate Authority. The Appellate Authority replied on 10.11.08. In his reply, he mentioned as follows: i) Every year BSNL conducts various departmental / direct recruitment examinations involving thousands of candidates. A common procedure is being followed for conduction of all the examinations based on the BSNL recruitment rules. It is pertinent to mention that the examination process is executed entirely within the organization. Departmental officers are nominated as paper setters as well as examiners in addition to their normal duties. ii) Most of the examinations are descriptive in nature giving scope for variations in the allocation of marks. The disclosure of answer sheets will result in challenging of such variations in the Hon'ble Court of Law. Due to these reasons, officers are not willing to volunteer as examiners. Since it is not possible to isolate the identity of the examiner from the answer sheets, they are feeling insecure about their life or career due to apprehensions of litigations raised in the evaluation of answer sheets. Moreover, when the evaluated answer sheets are challenged in courts, the entire recruitment process comes to a halt until the decision is given by the court. This results in deficiency of man power which subsequently hampers the developmental activities of the organization. Based on theabove facts, he upheld the decision of the ACPIO. The applicant filed a second appeal dt.18.12.08 before CIC. 2. The Bench of Mrs. Annapurna Dixit, Information Commissioner, scheduled the hearing for March 6, 2009. 3. The Respondents were absent at the hearing. 4. The Applicant's representative Mr. K.V. Ramakrishna was present during the hearing. Decision 5. Taking recourse to decision of the Commission of 16.4.07 in appeal nos. CIC/WB/A/2006/00469 and 00394, CIC/OK/A/2006/00266/00058/00066 &00315 Rakesh Kumar Singh & Ors vs. Lok Sabha Secretariat, the Commission directs the CPIO to provide a certified copy of the Answer sheet, while ensuring that the name and the identity of the examiner, supervisor or any other person associated with the process of examination is in no way disclosed so that their lives are not in any way endangered. The information is to be provided within 15 working days of the receipt of this Order. 6. The appeal is disposed off. (Annapurna Dixit) Information Commissioner Authenticated true copy: (K.G.Nair) Designated Officer Cc: 1. Mr.K.Ramagopal JTO-CellOne/BSNL Flat No.303 Manas Apartments Srinivasa Agraharam Nellore 2. The ACPIO & AGM (Legal) Bharat Sanchar Nigam Limited O/o Chief General Manager Telecom A.P.Circle Hyderabad 500 001 3. The Appellate Authority & The Chief General Manager Bharat Sanchar Nigam Limited O/o Chief General Manager Telecom A.P.Circle Hyderabad 500 001 4. Officer in charge, NIC 5. Press E Group, CIC

Mr.K.Ramagopal vs Bsnl, Hyderabad on 6 March, 2009

Central Information Commission

Court No. - 37 Case :- INCOME TAX APPEAL No. - 524 of 2007 Petitioner :- The Commissioner Of Income Tax Respondent :- Shri Aditya Agrawal Petitioner Counsel :- R.K.Upadhyaya Hon'ble Rajes Kumar,J. Hon'ble Bharati Sapru,J. On the appreciation of the evidence on record the Tribunal has confirmed the order of the CIT (Appeals), accepted the cash credit and deleted the addition. The finding of the Tribunal is finding of fact. No substantial question of law arises from the order of the Tribunal. The appeal fails and is dismissed. Order Date :- 4.8.2010 OP

The Commissioner Of Income Tax vs Shri Aditya Agrawal on 4 August, 2010

Allahabad High Court

Gujarat High Court Case Information System Print CR.MA/3678/2011 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 3678 of 2011 ========================================================= NILKANTHBHAI NATVARPRASAD RAWAL - Applicant(s) Versus DHIRAJLAL POPATLAL GAJIPARA, PARTNER OF JALARAM TRADERS & 1 - Respondent(s) ========================================================= Appearance : MR SHASHIKANT S GADE for Applicant(s) : 1, MR JK PARMAR for Respondent(s) : 1, MR. H.L. JANI, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 03/05/2011 ORAL ORDER Heard. In the facts of the case, leave to appeal is granted. Application stands disposed of. (Z.K.SAIYED,J.) Vahid     Top

Author: Z.K.Saiyed,&Nbsp;

Nilkanthbhai vs Dhirajlal on 3 May, 2011

Gujarat High Court

Court No. - 3 Case :- CONTEMPT No. - 1036 of 2010 Petitioner :- J auhar Raza Rizvi Respondent :- Praveen Mani Tripathi & Another Petitioner Counsel :- Nisha SriVastaVa,Surendra Kumar Hon'ble Shri Narayan Shukla,J. List on 15.7.2010. On that date, opposite party no.1 shall again appear before this Court. Order Date :- 6.7.2010 GSY

Jauhar Raza Rizvi vs Praveen Mani Tripathi & Another on 6 July, 2010

Allahabad High Court

CENTRAL INFORMATION COMMISSION ..... F.No.CIC/AT/A/2009/000497 Dated, the 21st July, 2009. Appellant : Shri Darshan Singh Chawla Respondents : South Eastern Coalfields Limited This matter came up for hearing through videoconferencing on 14.07.2009. Appellant was present at NIC Studio, Korba. Respondents ⎯ represented by the AA and the CPIO ⎯ were present at NIC Studio, Bilaspur. Commission conducted the hearing from its New Delhi office. 2. Appellant's RTI-application dated 14.02.2009 was replied to by the CPIO on 23.03.2009 and by the Appellate Authority on 04.04.2009. 3. This second-appeal is about query no.2 in appellant's RTI-application, a copy of which is enclosed to this order. 4. In his second-appeal, appellant has stated that through this item of query what he had requested was the minutes of the meeting of the Joint Consultative Committee of Kusmunda Region of SECL for providing financial contribution for relief of flood affected people of Bihar. He stated during the hearing that what he has been provided by CPIO was the information regarding the whole of SECL. 5. When it was posed to the CPIO whether the above-mentioned information specifically for Kusmunda Region can be provided to the appellant, he stated that he would check back from the holder of information and if information is available, it shall be provided to the appellant. 6. Accordingly, it is directed that CPIO shall provide to the appellant the above information, if it is available, and if it is not available in the form requested by the appellant, a suitable reply may be provided to him. This may be completed within two weeks of the receipt of this order. 7. Appeal disposed of with these directions. AT-21072009-04.doc Page 1 of 2 8. Copy of this direction be sent to the parties. ( A.N. TIWARI ) INFORMATION COMMISSIONER AT-21072009-04.doc Page 2 of 2

Shri Darshan Singh Chawla vs South Eastern Coalfields Limited on 21 July, 2009

Central Information Commission

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.30681 of 2010 RAM KUMAR DAS @ DEV KUMAR DAS @ KHAUAN Versus STATE OF BIHAR ----------- Praveen/- (Akhilesh Chandra, J.) 04/- 09-03-2011 Heard learned counsel for the petitioner and learned Additional Public Prosecutor for the State, who is armed with carbon copy of the case diary. Petitioner is named accused in this case with allegation of giving fatal blow to brother of the informant causing his death during way to the hospital. There is counter version also by way of Samastipur Town (Mufassil) P.S. Case No. 105 of 2010 and as submitted on the day of Holi the deceased unsuccessfully tried to outrage the modesty of wife of the petitioner which was the caused behind the entire occurrence. Considering the facts and circumstances of the case, petitioner, namely, Ram Kumar Das @ Dev Kumar Das @ Khauan, is directed to be released on bail on furnishing bail bond of sum of Rs. 10,000/- (ten thousand only) with two sureties of the like amount each to the satisfaction of learned 3rd Additional Sessions Judge, Samastipur in connection with Sessions Trial No. 356 of 2010 arising out of Samastipur Town (Mufassil) P.S. Case No. 104 of 2010. Subject to condition to attend the court regularly at least for two years or till disposal of the case, whichever is earlier, and in the event of failure on three consecutive dates, the privilege granted shall be deemed to be cancelled.

Ram Kumar Das @ Dev Kumar Das @ ... vs State Of Bihar on 9 March, 2011

Patna High Court - Orders

JUDGMENT Mehr Singh, J. 1. This appeal, by Suraj Mal plaintiff, arises out of a suit for recovery of Rs. 9,890/14/6, principal and interest, on the basis of various amounts advanced by the plaintiff to Vishan Gopal defendant, between 15-12-1944, and 31-5-1947, on which last date the defendant, after going through the account, wrote in his hand at the bottom Rs. 7,883/6/- due (Baki Rahe). The suit has been dismissed by the learned trial Judge on the ground that it is barred by the Statute of limitations. The decree is dated 31-3-1952. 2. The defendant began taking loans from the plaintiff on 15-12-1944. He raised various amounts on various dates up to 31-5-1947, pledging certain shares at different times and taking sometimes all and sometimes part of them, while making repayments in the account. The account was throughout kept by the defendant himself and started with his name written by himself on top of the account. The first balance entry in the account is of 15-1-1945, written in the hand of the defendant showing a balance of Rs. 4700/- as due. The entry is stamped with one anna revenue stamp and is signed by the defendant. There is another entry signed by the defendant of 13-3-1945, but that only relates to the taking back of certain shares pledged by him and to those that remained with the plaintiff. The third entry of balance of account is of 31-5-1946, which shows balance payable as Rs. 9,638/9/-. The entry is stamped with a revenue stamp of one anna and is signed by the defendant. The last entry, the one that is the subject matter of argument between the parties, is of 31-5-1947, as usual, written by the defendant himself, showing that Rs. 7,833/6/6 were due. The entry is unstamped and not signed by the defendant. It is the amount of this entry, with interest, that is the subject-matter of the claim in this suit. 3. The learned" trial Judge has come to the conclusion that the last entry of balance due is an acknowledgment within the scope of Article 1, Schedule I, of the Stamp Act, and as it is not stamped, so it is inadmissible in evidence, it is common case of the parties that if this acknowledgment is taken out of consideration, the suit from the dates of the advances is obviously time barred. 4. An acknowledgment under Section 19 of the Limitation Act extends the period of limitation from the date on which it is signed by the party I making it. But if it is an acknowledgment coming within the scope of Article 1, Schedule I, of the Stamp Act, and is not properly stamped, it is inadmissible in evidence for any purpose whatsoever. That Article requires a stamp of one anna on an acknowledgment and reads thus-- "Acknowledgment of a debt exceeding twenty rupees in amount or value, written or signed by, or, on behalf of, a debtor in order to supply evidence of such debt in any book (other than a banker's pass-book) or on a separate piece of paper when such book or paper is left in the creditor's possession: Provided that such acknowledgment does not contain any promise to pay the debt or any stipulation to pay interest or to deliver any goods or other property." I What is material in the present case is that for an acknowledgment to come within the scope of this Article it must have been made by the debtor and signed to supply evidence of the debt. That is not necessary for an acknowledgment under Section 19 of the Limitation Act. It is a question of intention of the parties whether a particular acknowledgment is intended to supply evidence of the debt, and that must, of course, remain a question of fact to be decided having regard to the words of the acknowledgment and the circumstances attending the making of it. In the present case what is stated in the acknowledgment is that a certain amount is due (Baki Rahe), and by itself it provides no indication of the intention of the parties, but when it is considered along with the three previous balance entries of 15-1-1945, 13-3-1945, and 31-5-"1946, it becomes abundantly clear that when the parties intended the balance due to be evidence of the debt the entry was specifically signed by the defendant and in the case of first and third of the three entries, referred to above, the entries are stamped with one anna revenue stamp. In the case of these two entries there can be no doubt at all that the intention of the parties was to make each an acknowledgment within the scope of Article 1, Schedule I, of the Stamp Act and to supply evidence of the debt. This is not the case with regard to the last entry and the inference is apparent that that entry was not intended by the debtor to supply evidence of the debt. This conclusion takes out that entry from the scope of Article 1, Schedule I of the Stamp Act. 5. The reported cases, so far as an entry of this type, merely saying that balance is due, is concerned, do not take a consistent view. In Sitaram v. Ram Prasad Ram, AIR 1915 Cal 280 (A), a similar entry was held to come within the scope of Article 1, Schedule I, of the Stamp Act, but Sambasiva Rao v. Venkatasuryanarayana Murthy, AIR 1950 Mad 135 (B), takes a contrary view. In Ramdayal v. Maji Devdiji, AIR 1956 Raj 12 (C), at p. 18, the learned Chief Justice is of the opinion that in the case of such an acknowledgment the presumption should be that the intention was to accept the correctness of the account and to make it the account of the person signing it, and not that the intention was to supply evidence of the debt. Similar view has been expressed in Roshan N.M.A. Karim Omer & Co. v. Mahomed Ebrahim, AIR 1939 Rang 315 (D), and in Manilal Motiram v. Natwarlal Gokuldas, AIR 1947 Bom 337 (E). However, in the present case, there is other evidence available in the account produced. and, as already referred to, it leads to the inference that the acknowledgment in question was not intended by the debtor to supply evidence of the debt. 6. So Article 1, Schedule 1, of the Stamp Act does not apply to the acknowledgment in question, and, as such, it certainly comes within the scope of Section 19 of the Limitation Act. The learned counsel for the defendant says that, even if that I is so, that section cannot apply to this particular acknowledgment, because it is not signed by the defendant. The reply of the learned counsel for the plaintiff is that it is not necessary that such an acknowledgment be signed by the debtor at its foot and that if the account, which is maintained by the defendant himself, begins with his name written by him, that is sufficient signature by him according to Section 19. Reliance in this behalf is placed on Andarji Kalyanji v. Dalabh Jeevan, ILR 5 Bom 88 (P); Mohesh Lal v. Busunt Kumaree, ILR 6 Cal 340 (G), and Sadasookh Agarwalla v. Baikanta Nath, ILR 31 Cal 1043 (H). In the first and third of these cases, the debtor, after writing down the acknowledgment, had written under it 'signed by himself, in the first case the words being 'Daskhat Pote' and in the second case 'Likhitan Khod', and the learned Judges held that this manner of attesting the acknowledgment was sufficient signing within the scope of Section 19 of the Limitation Act. No such thing has happened in the present case. In the second case, all that the learned Judges said was that the signature need not appear at the foot, but if the name of the debtor, written by himself, appears in the body of the writing itself, that is sufficient to meet the requirements of Section 19. This, too, is not the case here. None of these authorities is of any assistance to the plaintiff. But even if this contention on behalf of the plaintiff was to be accepted, it is of no assistance to him because extension of the period of limitation under Section 19 is from the date of the signature on the acknowledgment by the debtor. In. this case the defendant wrote his name in the heading of the account on 15-12-1944, and from that date the suit is, from any consideration, time barred. His own name written by the defendant at the head of the account some 2 1/2 years earlier to the date of the last acknowledgment cannot be taken to be a signature of the defendant on that acknowledgment on the date on which it was made. So that the plaintiff cannot derive any benefit, in the circumstances from the provisions of Section 19 of the Limitation Act. 7. As a last resort, the learned counsel for the plaintiff has fallen back upon Article 64 of the Limitation Act which provides a limitation of three years from money found to be due from the defendant to the plaintiff on accounts stated between them and the starting point of limitation is "when the accounts are stated in writing, signed by the defendant or his agent duly authorised in this behalf, unless where the debt is, by a simultaneous agreement in writing signed as aforesaid, made payable at a future time, and then when that time arrives'. The learned counsel for the plaintiff contends that, in any case, in this Article 'signed' covers a case in which the account is signed by the defendant as in the present case. The reply on behalf of the defendant is that 'signed' in this Article means signed at the time of the making of acknowledgment and not at any time earlier. The contention on behalf of the defendant apparently appears to be the one that is correct in Dasaundhi Ram v. Mool Chand, AIR 1933 Lah 12 (1), the learned Judges accepted the view that the wording of Article 64 and Section 19 of the Limitation Act being identical, it is settled law that what is good and valid signature in the one is also good and valid signature in the other. However, it does not appear from the report that the question as to when the signature appended was a matter of consideration before the learned Judges. In this connection also the learned counsel for the plaintiff has relied upon the three cases already cited in supporting his contention that the writing of his name by the defendant in the heading of the account is sufficient signature for the purposes of Article 64. These are not relevant for the reasons already given. But even if this contention is to be accepted, the question still remains whether his name written at the top of the account by the defendant himself about 2 1/2 years earlier to the acknowledgment in question is a writing signed by him within the scope of Article 64, so as to give the starting point of limitation not the original date of the writing of his name by the defendant but the date of the acknowledgment. As already stated above, this appears to be based on an unsound argument and the starting point of limitation must even under this Article be taken from the date of the signature appended by the debtor-defendant -- and if in the present case it is the date when the defendant put his name in the heading of the account that is to be taken into consideration, the suit is obviously time barred. In Kanthasami Reddiar v. Pethusami Reddiar, AIR 1940 Mad 887 (J), the facts were somewhat similar. The defendant started an account with the plaintiff about a year before the settlement with the writing of the heading by the defendant There followed a series of entries all in the handwriting of the defendant, as in the present case, and a mere pencilled totalling and striking of the balance. Wadsworth J., was of the opinion that this did not indicate, in any way, that there was authentication of the balance or an express indication given by the writer that he accepted it as binding upon himself, and he held that the writing of the name at the head of the account could not be regarded as authentication of the balance finally struck approximately one year later and therefore Article 64 did not apply. Thus, even Article 64 of the Limitation Act cannot apply to the present case because, even if the writing of his name by the defendant at the head of the account is to be taken as his signature within the scope of that Article as having been appended to the acknowledgment of 31-5-1947, the fact being that such writing of the name of the defendant was 2 1/2 years earlier to the date of the acknowledgment, it cannot be said that the date of the signing is the same as the date of the acknowledgment and with this conclusion Article 64 does not help the plaintiff, for from the date of his putting his name on the heading of the account by the defendant, the suit is time barred. 8. In consequence, the decision of the learned trial Judge that the suit of the plaintiff is time barred is affirmed and the appeal is dismissed, leaving the parties to their own costs in this appeal. D. Falshaw, J. 9. I agree.

Author: M Singh

Suraj Mal Kalu Ram vs Vishan Gopal on 1 November, 1957

Punjab-Haryana High Court

[Section 22] [Complete Act]

Central Government Act

IN THE HIGH COURT OF JUDICATURE AT PATNA MJC No.3155 of 2011 Rabindra Kumar Choudhary Versus Sri Satya Prakash Trivedi Divi & Anr. ----------- 03/ 21.09.2011 As prayed by learned counsel for the opposite parties, pass over for the day as a last chance. (S. N. Hussain, J.) Sunil

Rabindra Kumar Choudhary vs Sri Satya Prakash Trivedi Divi on 21 September, 2011

Patna High Court - Orders

IN THE HIGH COURTHOF KARNATAKA AT BANGALORE DATED THIS THE 1 rm DAY OF FEBRUARY 201_,ef_j BEFORE > THE I-ION'BLE DR. JIISTICE K. B§j1VAKTHA%'Ai'1TSkXIiA'--AV " WRIT PE'I'I'I'ION NO.34077/2009-A(i3?\/i;CPC}"*- 4' 7 BE] WEEN Sri C R Jayappa Recidy, S / 0 Ramaiah, Age: 51 years, Residing at Cholanayakanahajli, R T Nagar Post, V Banga1ore--56€) 032. Petitioner (By Sri K v Laksiaizfiana ,Ad§.,..Auibr,'.:pe'ti,iio1ier] AND 1. Sri 0 M Liiigaiapa, V' Age: 88 years. 2. Sri 0 L Rajezidra, , V' " M.?L;i1é.gappaR, ..... Age: 5'2.years."" " 3. Sfi'~~0 E; Guriiprasam' e,_Sv/0 O M .Li:1gappaj,f Age: 48 years.' " " "Ni:;)e,_1"to 3 areajesiciing at .1 No; 1'31. Sanigey Apartments, '*Sa'nkey Roar}, . " . "VBan.ga}€uje--560 080. 1 * .. ..Sr'i Narayanachari, S/0 Nanjundachari. Age: 64 years, Residing at Shettigeri Village, Jala Hobli, Bangalore North Taiuk. B.'.e.sp0ndjents {By Sri Dharmashree Associates, Adv., for C / R-2) . {By Sri Vishwanath R Hegde & Harish S. AC1Vs., fox*'R44}.0 . " (R-1 <3: 3 are served, but remain un~represent"ed)t_ This Writ Petition is filed under'.,A1tieles "226 & 227 of the Constitution of India, praying _to quash_:the"n.impugnedreorder dated 3.10.2009 on l.A.XX at Aqnexulje-A,m_-oks No.52/2006 old No.160/1998 on the file of Fri; V(_3'1vi.I e.J.udge_'{Sr;.V Ii33?vn.), Devanahalli, Bangalore Rural District. ' .. 'B = This Petition on"-.fo1=? preliinina.ry«.hearing 'B' Group this day, the Court madetheI.f0l'l.ow1i1g:" V . The petitioner/p,l_aintiif.v s No.52/2006 [old No.160/1998) on-the fivlcifigof Judge_._{.Sr. Divrr), Devanahalli, Bangalore Rural Dist:jiet,;l'Bangalore«,_dis._before this Court, praying for quashing the gggorder dated»3.lO:2QO9VVnassed on I.A.XX filed in the above--sa_id suit at '77AnneXure~A. . It spite of service of notice on respondent Nos.1 and 3, there' ' V . _ is no representation.

Author: Dr.K.Bhakthavatsala

Jayappa Reddy C.R vs Lingappa O.M on 11 February, 2010

Karnataka High Court

JUDGMENT Wilkinson, J. 1. It is contended that the lower Courts erred in giving plaintiff relief on grounds not alleged in the plaint. The Lower Courts have decided that the defendant, the adopted son of one Narayanasami Ayyar, is bound to pay to plaintiff Rs. 600 bequeathed by the deceased Narayanasami Ayyar in his will for a silver Vrishabhavahanam. It appears from the plaint that the paintiff rested his case on two grounds--the direction in the will and the liability of the deceased to repay a loan. The latter cause of action, however, was relinquished and the plaintiff relied on the bequest alone. 2. It is then contended that the legacy is void and that the defendant is not bound to carry out the promise made by his father. The District Judge upheld the legacy on the ground that it was a gift to religious uses which the son can be compelled to carry out. There is no Madras case in support of this contention. So long ago as 1874 it was decided Vitla Butten v. Yamenamma 8 M.H.C.R., 6 that a member of an undivided family cannot bequeath even his own share of the joint property, because at the moment of death the right by survivorship is at conflict with the right by bequest, and the title by survivorship being the prior title, takes precedence to the exclusion of that by bequest. This principle has been recognised by the Privy Council--Suraj Bunsi Koer v. Sheo Proshad Singh L.R., 6 I.A., 88 and Lakshman Dada Naik v. Ramachandra Dada Naik I.L.R., 5 Bom., 62. In the case of Baba v. Timma I.L.R. 7 Mad., 357 it was decided by the Full Bench that a Hindu father, if unseparated, has not power, except for purposes warranted by special texts, to make a gift to a stranger of ancestral estate, moveable or immoveable. No special text has been cited in support of the gift of a silver Vrishabhavahanam to a kovil. It certainly was not an indispensable act of duty, nor a gift through affection or for support of the family or relief from distress, which are specified in the Mitakshara (ch. I, s.I, Section 27) as gifts which a father has power to make. I am not prepared to say that the gift of Rs. 600 for a silver Vrishabhavahanam was a gift for a religious purpose. It is evident from the form of the plaint and from Exhibit B that the Rs. 600 had been received by the testator in the year Yuva on a promise to repay it in four months' time and that the bequest was, in truth, made with the intention of repaying a barred debt. 3. The decrees of the lower Courts must be reversed and the plaintiff's suit dismissed with costs throughout. Muttusami Ayyar, J. 4. I am also of the same opinion. The averment in the plaint that the money sought to be recovered was a debt due by defendant's adoptive father has since been abandoned. The claim that it was a legacy to the temple is untenable. For the reasons and on the authorities mentioned by my learned colleague, the defendant's father had no testamentary power over family property common to himself and his adopted son for any purpose. The contention that the legacy can be treated as an executory gift made for religious uses is not tenable, inasmuch as the defendant's father had no testamentary power at all either to give legacies or make gifts out of joint property.

Author: Wilkinson

Rathnam vs Sivasubramania on 23 December, 1892

Madras High Court

Gujarat High Court Case Information System Print SCA/4892/2011 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 4892 of 2011 ========================================================= PATEL KAPILABEN BHIKHALAL - Petitioner(s) Versus TALATI CUM MANTRI - Respondent(s) ========================================================= Appearance : MR LALIT V PATEL for Petitioner(s) : 1, None for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 27/04/2011 ORAL ORDER1. Leave to amend so as to add Collector and Mamlatdar as respondent Nos.2 and 3. 2. The amendment to be carried out forthwith. The petitioner shall supply copy of the petition alongwith all annexures to the learned AGP so far as the newly added respondents are concerned. 2. Heard Mr. Patel learned advocate for the petitioner and Mr. Raval, learned AGP for the respondent. 3. The petitioner has preferred present petition seeking below mentioned relief/s:- "6 (A).... (B) issue appropriate writ, order or direction upon the respondent authorities directing to decide the representation dated 25.1.2011 made by the petitioner for making necessary changes of Date of Birth, Name and Surname of the petitioner in the register maintained by them and for issuance of fresh Birth Certificate. (C)...... " 4. Having regard to the averements and submissions made in the application and the relief prayed for in the petition, learned AGP has submitted that the competent authority shall take into consideration the application-representation made by the petitioner as early as possible but not later than 20.5.2011 and after hearing the petitioner pass appropriate order on or before 31.5.2011 if it is found in accordance with law. 5. In view of the aforesaid statement by learned AGP, the petition is disposed of with the observation that the competent authority may take into consideration the petitioner's application as expeditiously as possible and preferably within the time limit as mentioned hereinabove and take appropriate decision in accordance with law. 6. Learned AGP may inform the authority about the decision of this Court in the case between Nitaben Nareshbhai Patel vs. State of Gujarat (2008[1] G.L.H. 556) and instruct the authority to take decision after taking into account the judgment of this Court. (K.M.THAKER,J.) Suresh*     Top

Author: K.M.Thaker,&Nbsp;

Patel vs Talati on 27 April, 2011

Gujarat High Court

JUDGMENT V. Ramaswami, J. 1. This is an appeal against the judgment and decree of the learned Subordinate Judge, Karur, on a reference under Section 31, Land Acquisition Act, in L. A. 0. P. No. 16 of 1978. Claimants I to 6 are the appellants. 2. An extent of 1.78 acres comprised in S. F. No. 88 was acquired under the provisions of the Land Acquisition Act for the construction of a Depot for Cholan Roadways Corporation, Kumbakonam. The Land Acquisition Officer awarded compensation at the rate of Rs. 9,000/- per acre. There was a reference under Section 18 which was also disposed of by the learned Subordinate Judge in L. A. 0. P. No. 15 of 1978, fixing the compensation at the rate of Rs. 15,0001per acre. Since there was a dispute relating to the title, the matter was also referred to the learned Subordinate Judge under S. 31, land Acquisition Act. 3. The said S. F. No. 88 measuring 1.78 acres and another extent of 1.96 acres comprised in S. F. No. 735 were the subject matter of an inam grant. The case of claimants 1 to 6 was that the grant was a personal grant to the Gurukkal of Thirumaleeswarswami Temple at Thirumanilayur, hounded with the condition of services to the temple. They also claimed that they and their predecessors-in-title had been in possession and enjoyment, doing the services in the temple. This inam was notified and taken over as a minor inam under the TamilNadu Minor Inams (Abolition and Conversion into Ryotwari) Act (Act 30 of 1963). l) The suo motu enquiry held by the Settlement Tahsildar III (S. E.) - Tiruchirappalii, a ryotwari patta was issued to claimants I to 6 under S. 8 (2) of Act 30 of 1963. The Land also stood registered at the time of acquisition in the Permanent Land Register and other records of the Government in the name of claimants I to 6. The said claimants further contended that in view of the patta issued under Section 8 (2) (ii) in their favour, it is not open to the Civil Court to go into the question of title afresh and decide whether the grant was in favour of the temple or it is a Personal grant burdened with service. They also contend ed that the temple is estopped by the principle of res judicata, from claiming that any portion of the compensation amount is due to them in view of the decision of the Settlement Tahsildar, holding that they are entitled to a ryotwari Patta and also in view of the prior proceedings in 0. P. NO. 12 of 1939, 0. P. No. 99/42 and 0. P. No. 104 of 1942. According to these claimants, the title of the temple had been found against in these proceedings 4. The seventh claimant, which is the temple, filed a statement claiming that the original grant as evidenced by the inam Fair Register extract was to the institution and for support of the institution, that the decision of the Settlement Tahsildar that it is a personal grant burdened with service and that claimants I to 6 are entitled to the patta cannot be treated as final and that question of title could be agitated again in a Civil Court. 5. The eighth claimant claimed that he is a cultivating tenant in respect of the land acquired and, entitled to a portion of the compensation. The claim of tile eighth claimant was rejected and be had not filed any appeal and therefore his claim way be kept out of consideration. 6. The learned Subordinate Judge held that the Inam Fair Register extract Showed that the grant was for the temple and not a personal grant burdened with service. On that ground he further Wd that claimants 1 to 6 have no title to the property and that the grant of Patta cannot clothe them with any right to claim compensation amount that view, the compensation was given to the temple. 7. The Inam Fair Register extract has been marked in this case as Ex. A-3. It may be seen from column 2 that the grant has been classified as "religious" and in Column 8 relating to the description of the inam, it is stated that it is Devadayam granted for the Support of the Pagoda of Thimalilaiswaraswami at Tirumanallur and it is well kept up. On the question of tenure of the grant in column 9 is stated as "rent free' and under column 10 whether it is hereditary, unconditional for life only or for two or, more lives, it is stated that it is "Permanent so long as it is well kept up". The name of the original grantor is given as Thimala Naicker Paligar of Madura. However, the date of the grant is stated as "not known". In Fasli 1214, it was registered in the name of the temple as seen from the entry in column 15. Under the columns relating to present owner, it is -mentioned "Tirumanilaiyur 9151runianfla Iswaraswamt Pujari Subbaraya Gurukkal age 45". In column 21 relating to the remarks and Deputy Collectors opinion it is stated "to be confirmed to the Pagoda permanently so long as it is well kept up". The decision of the Inam Commissioner mentioned therein is that it is confirmed accordingly. 8. The total extent granted is shown w 3 acres 47 cents only, whereas as seen from Ex A-9, S. No. 88 measures 1.78 and S. F. No. 735 measures 1.96, making a total of 3.74. There could be no doubt that the cumulative effect of these entries in the Inam Fair Register Extract could lead to the conclusion that the grant was in favour of the temple and for the maintenance of the temple and it was not a personal grant made in favour of the archakas of the temple with a condition of service attached to the same. The question, therefore, arises for consideration as to whether, in view of the decision in the settlement proceedings holding that the inam was in favour of the predecessors-in-title of claimants I to 6 they are entitled to patta under Section 8 (2) (ii) of Act 30 of 1963 and the temple is not entitled to claim title or question the decision of the Settlement Tahsildar on the question of title in these proceedings and whether the decision made by the Settlement Tahsildar operates as res judicata. We will consider the question of res judicata with respect to earlier proceedings in 0. P. No. 12 of 1939'. 0. P. No. 98/42 and O. P. 104/42 when we discuss the question of res judicata separately. 9. The TamilNadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963 (hereinafter referred to as Act 30/1963) came into force, with effect from 5-2-1964. On and from the appointed date, every minor inam including communal land, poramboke and other lands situate within the boundaries thereof shall stand transferred to the Government and vest in them free of all encumbrances. Under Clause (d) of Section 3, the Government may, after removing any obstruction that may be offered, forthwith take possession of the minor inam. The proviso under this clause reads: "Provided that the Government shall not dispossess any Person who is personally cultivating any land in the minor inam, until the Assistant Settlement Officer and the Tribunal and the Special Appellate Tribunal on appeal, if any, decide that such person is not actually entitled to a ryotwari patta in respect of that land under the provisions of this Act. Explanation: - For the purpose of this proviso, a person is said to personally cultivate a land when he contributes his own physical labour or that of the members of his, family in the cultivation of that land". under Clause (e) the inamdar or any other person whose rights stand transferred or cease and determine under Clause (b) or (c) thereof shall be entitled only to such. rights and privileges as are recognised or conferred on him by or under this Act. 10. Section 8, which is the material provision for the Purpose of this case, reads as follows: "8 Grant of ryotwari pastas: - (1), Subject to the provisions of sub-section (2) every person who is lawfully entitled to the kudivaram in an inam land immediately before the appointed day whether such person is an inamdar or not shall, with effect on and from the appointed day, be entitled to ryotwari patta in respect of that land. (2) Notwithstanding anything contained in sub-section (1), in Madras Hindu Religious and Charitable Endowments Act, 1959 (Madras Act 22 of 1959) and in the Madras (Transfered Territory) Incorporated and Unincorporated Devaswoms Act, 1959, (Madras Act 30 of 1959), the following provisions shall apply in the case of lands in ah iruvaram minor inam granted for the support or maintenance of a religious institution or for the performance of a charity or service connected therewith or of any other, religious charity- (i)" where the land has been transferred by way of sale and the transferee or his heir, assignee, legal representative or person deriving rights through him had been in exclusive possession of such land- (a)for a continuous period of sixty years immediately before the 1st day of April, 1960, such person shall, with effect on and from the appointed day, be entitled to a ryotwari patta in respect of that land; (b) for a continuous period of twelve years immediately before the -1st day of April, 1960, such person shall, with effect on and fro the appointed day, be entitled to a rotwari patta if be pays as consideration to the Government in such manner and in such. number of instalments as may be prescribed, d an amount equal to twenty times the difference between' the fair rent in respect of such land determined in accordance with the provisions -contained in the- Schedule -and the land revenue due on such land (ii) in the case of any other land the institution or, the individual rendering service shall, with effect on and from the appointed day, be entitled to a ryotwari patta in respect of that land. Explanation: - For the purpose of this sub-section, "land revenue, means the ryotwari assessment including the additional assessment, watercess and additional water-cess. (3) Any arrear of the amount due from any person under Clause (i) (b) of sub-section (2) shall be recovered together with such interest as may be prescribed as if it were an arrear of land revenue. (4) The Government shall within, such period as may be prescribed pay to the institution concerned in one lump sum the amount specified in Clause '(i) (b) of sub-' section (2) and such payment shall be made in such form and manner as may be prescribed. (5) In the case of a minor inam held immediately before the appointed day by an individual on condition of rendering service to a religious, educational or charitable institution, the grant of ryotwari patta under sub-section (1) or (2) shall be subject to the, provisions of Section 21." 11. Section 21 subject to which the pattas are issued under, Section 8, reads as follows "21. Service inams: (1) The provisions of this section shall apply in respect of any minor inam which was held immediately before the appointed day by an individual (hereinafter referred to in this section as the service-holder) on condition of render the service to a religious, educational or charitable institution. (2) The service holder shall subject to the provisions of sub-section (3) be bound to continue to render the service after the appointed day. (3) (i) Where a service-holder is entitled to a ryotwari patta under Section 8 in respect of any land, he shall have the option- (a) either to pay to the religious institution the amount specified in sub-section (4) and on such payment the land shall, notwithstanding anything contained in sub-:section (7), be discharged from the conditions of the service; or (b) to hold the land -and continue - to render service subject to the provisions 'contained in sub-sections- (1), (2), (6) and (7). (ii) The option referred to in Clause (i) shall be exercised within such time from the appointed day, and in such manner as may be prescribed., (4) The amount referred to in sub-sec. (3) shall be twenty times the difference between the fait rent in respect of such land determined in accordance with the provisions contained in the Schedule and the land revenue due on such land. (5) Where the service holder has exercised his option to pay the amount specified in sub-section (4), the tasdik allowance referred to in' sub-section (6) in respect of tb4; period subsequent to the date of the exercise of such' option shall be the absolute property of the institution and the institution shall be at liberty to make such arrangements as it thinks fit for the performance of the service, (6) (a). For so long as the service-holder renders the service the institution shall pay to the service-holder the tasdik allowance paid "by the Government tinder, S. 20. (b) If the service-holder fails to render the service, the prescribed officer shall, after such inquiry and after such notice to the service-bolder as may be prescribed in this behalf, notify such failure in such manner as way be prescribed. He shall then declare that the tasdik allowance payable to the institution in respect of the period subsequent to the failure shall be the absolute Property of the institution and the institution's shall be at liberty to make such arrangement, as it thinks fit for the performance of the service. (7) (a) For so long as the service-bolder renders the service he shall be entitled to occupy permanently the lands in respect of which he is entitled to a patta under S. 8, subject, however, to the payment of the Assessment fixed under Section 16 or under Sec6bn 16-A, as the case may be in respect of such lands. (b) if the service-bolder fails to render the service, the Prescribed officer shall, after such inquiry and after such notice to the service-holder as may be prescribed in this behalf, notify such failure in such manner a,, may be prescribed. He shall then declare that the service-holder's right to occupy permanently the land under Clause (a) shall cease and determine and the institution shall beat liberty to make such arrangement as it thinks fit the performance of the set-vice and shall-be, entitled to bold the land. as its absolute property subject, however, to the payment of the assessment fixed there-for tinder Section 16 or under Section 16-A as the case my be." 12. Under Section 11, the competent authority to inquire into the claims of any person for a ryotwari patta under that Act in respect of any inam land and decide in respect of which land claim should be allowed, is The Assistant Settlement Officer concerned. The procedure to be followed i1a holding the enquiry is provided under subsection (2). of Section 1.. Sub-section (3) of this section confers a right of appeal to the Government as well as any person aggrieved by such decision to a Tribunal. 13. Section 43 relating to res judicata and Section 46 relating to finality of orders passed under The Act read as follows: "43. Res judicata: - (1) The decision of a Tribunal or the Special Appellate Tribunal in any proceeding under this Act on any matter falling within its jurisdiction shall be binding on the parties thereto and persons claiming under them in any suit or proceeding in a Civil Court, in so far as such matter is in issue between the parties or persons aforesaid in such suit or proceeding. (2) The decision of a Civil Court (not being the Court of a District Munsiff or a Court of Small Causes) on any matter falling within its jurisdiction shall be 'binding on the parties thereto and persons claiming under them in any proceeding under this Act before a Tribunal or the Special Appellate Tribunal in so far as such matter is in issue between the parties or persons aforesaid in such proceeding". "46. Finality of/ orders passed under this Act. (1) Any order passed by any officer, the Government or other authority or any decision of the Tribunal or the Special Appellate Tribunal under this Act in respect of matters to be determined for the purposes of this Act shall, subject only to any appeal or revision Provided under this Act, be final". 14. As may be seen from these Provisions, a right of appeal is provided to a Tribunal against the order of the Assistant Settlement Officer and that order 'of the Tribunal is final and not liable to be questioned in any Court of law. There could be no doubt that, if the decision of the Tribunal on appeal against the order of the Assistant, Settlement Officer is final Section 46, if no appeal is filed, a similar finality shall be attached to the, decision of the Assistant Settlement Officer Also. 15. A similar question was decided by the Supreme Court while considering the provisions of Section 56 (2) of the Andhra Pradesh Estates Abolition Act, in the decision in Oduru Chengulakshmamma v. Duvvuru Subramanya. Reddy . That provision read: "Any person deeming himself aggrieved by any decision of the Settlement Officer, under sub-section (1) may within three months from the date of the decision or such further time as the Tribunal may in its discretion allow, appeal to the Tribunal, and its decision shall be final and not be liable to be questioned in any Court of law." The Supreme Court observed : "Sub-section (2) of Section 56 of Act XXVI of 1948 categorically declares that the decision of the Tribunal deciding the appeal shall be final and not liable to be questioned in any Court of law, in so far as it relates to any of the matters covered by sub-section (1). It goes without saying that if no appeal is filed, a similar finality shall attach to the decision of the Settlement Officer." 16. The decision of the Assistant Settlement Officer which had thus become final under Section 46 operates as res judicata under Section 43 and binding "on the parties thereto and persons claiming under them in any suit or proceeding in a Civil Court. In so far as such matter is in issue between the parties or persons aforesaid in such suit or proceeding". it is therefore necessary to prove and establish that the person, against whom the order is claimed to be binding and not liable to be questioned, was a party to the proceeding and had notice of the same. If the person was neither a party, to the proceeding nor had notice of the proceeding, so far as he is concerned, the order is non est and the finality attached to the' order could not be pleaded against him. 17. At this stage, we may -notice certain facts relating to the grant of patta under Section 8 (2) (ii) in favour of claimants I to 6. One Krishna Gurukkal son of Kalyanasundara Gurukkal, the predecessor-in-title of claimants I to 6. in respect of, the Gurukkal services, filed a petition in 0. P. No. 12 of 1939 under S. 84 (2) of TamilNadu Act 2 of 1927 to declare the temple of Sri Thiruvaliswarar Thirumanilyyur as an excepted temple on t1w ground that he is hereditary trustee of the temple and also the hereditary Gurukkal of the temple and as a temple with a hereditary trustee, it is to be declared as an excepted temple under the Act. That petition was dismissed by an order dated 6-2-1941 marked as Exhibit A.5 in this case holding that the petitioner was not a hereditary trustee of the temple and the office of trusteeship was also not hereditary. 18. Subsequently, one Panchanatha Subramania Iyer filed O. P. No. 98 of 1942 claiming to be a trustee appointed by the Temple Committee praying for delivery of possession of the suit Properties comprised in S. F. No. 88 measuring 1.78 acres and S. F. No. 735 measuring 1.96 acres which were in the possession of the father of claimants I to 6. This petition was resisted by the respondent to the petition contending that as Archaka or Gurukkal of the temple, he is entitled to be in possession of the lands and that the lands have been in the possession and enjoyment of his predecessors-in -title, who were doing Archaka or Gurukkal duties. In the order dated 18-8-1943 in 0. P. No. 98 of 1942 it is stated that there was no dispute that the respondent was an Archaka or a Gurukkal, that his predecessors-in-title have been Archakas or Gurukkals for a number of years and that they were in possession of the lands for a long number of years. The point for consideration as stated in the order was: "The question is whether as Archakas and Gurukkals, they cannot be allowed to be in possession of the lands". The learned District Judge who disposed of the petition, after noting the statement in the counter, observed: "in a case like this, where the respondents claim to be the Archakas and Gurukkals. and where, the Board itself has admitted that persons doing such work are entitled to be in possession, it seems to me that these are not fit cases to pass orders wider Sec. 78 dispossessing the Archakas and Gurukkals and directing possession to be handed over to the petitioner." 19. It may be mentioned that a counter-affidavit was filed on behalf of the Religious Endowments Board in that O.P. Though the entries in the Inam Fair Register showed that the original grant was in favour of the temple was managed by a trustee appointed by the village Temple Committee or the trustee appointed by the Hindu Religious Endowments Board, and all along the lands were allowed to be in possession and enjoyment of the Archakas or Gurukkals of the temple in consideration of their rendering service in the temple. At the tow when the Inam wag notified and taken over under. Tamil Nadu Act 30of 1963, it was also found that claimants 1 to 6 were in possession of the suit lands and personally cultivating the same and accordingly they were not dispossessed in view of the proviso to S. 3 (d) of the Act. At the time- of the suo Motu enquiry by the Settlement Tahsildar who is the competent Assistant Settlement Officer within the Meaning of the Act, the claimants were found to be in possession and enjoyment. The claimants herein were examined as P. Ws. I to 6 and they had stated before the Settlement Tahsildar that they are doing the Pooja service regularly by fixing turns among themselves and that the land was in their possession and enjoyment. The two village officers who were examined as C. Ws. I and 2 also corroborated the evidence of the P. Ws. and stated that the claimants were doing poojas, regularly and that they are in possession of the lands. It is in that view, the Assistant Settlement Officer thought that the claimants are entitled to ryotwari patta under s. 8 (2) (ii) of the Act. 20. The next question, therefore, for consideration is whether the temple was a party to the proceedings and had notice of the same so as to make the order of the Settlement Tahsildar final and binding on the temple under S, 46 or barred under S. 43. As already stated, the Assistant Settlement Officer initiated proceedings under S. 11 of the Act suo motu. The order further states that "necessary notices have- been served and published as per rules The procedure for enquiry into claims for ryotwari Patta under S. 8 or 9 of the Act is found in the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Rules, 1965. Rule 9 states that if ii, respect of any land no person has applied for the grant of the ryotwari patta within six months from the appointed date, the Assistant Settlement Officer shall proceed to enquire into the nature and history of the land suo Motu and determine it any person is prima facie entitled to a ryotwari patta in respect of that land. The Assistant Settlement Oflicer shall fix a date for enquiry and shall cause a notice in Form No. 5 to be served on the person who has applied for a ryotwari patta and who, in the opinion of the Assistant Settlement officer, is prima facie entitled to a ryotwari patta, to produce any record and make any representations which he may wish to make at the enquiry. Copies of this notice in Form No. 5 "be sent to the Tahsildar, the Commissioner, Hindu Religious and Charitable Endowments Department, Madras and the Board of Wakfs, Madras.. Copies of the notice shall be sent to the Tahsildar in duplicate for causing publication in the village at least fifteen days prior to the date of hearing by affixture in the village chavadi on any conspicuous public place in the village which should be specified and announcing the fact by beat of tom to in and for m turning the original with a certificate that the notice was duly published in the village as required and in token thereof signatures of the villagers have been obtained. The Assistant Settlement Officer is also required by clause (5) of R. 9. to publish a notice is Form No. 6 informing all those, whom it may concern about the proposed enquiry and calling for objections, if any, to the proposal to grant the ryotwari patta and informing that such objections will have to be filed within a week of the date of the notice and also request and all interested persons to be present at the enquiry either in person or through an authorised representative and make their representations. This notice in Form No. 6 also is required to be sent to the Tahsildar of the Taluk and the Deputy Tahsildar of the Sub-Taluk, the Commissioner, Hindu Religious and Charitable Endowments Department, Madras and the Board of Walkfs, Madras. The Tahsidar was also required to re-submit the notice with a certificate relating to the due publication and announcement of the notice. It is in pursuance t of this notice, claimants, to 6 MW their statements praying for the issue of a ryotwar patta in their favour. But neither the Commissioner, Hindu Religious and Charitable & Endowments, Department Madras, nor any trustee of the institution appeared. In fact, the Settlement Tahsildar in his order specifically noted: "It is said that the Hindu Religious and Charitable Endowments Board has since appointed a trustee, but no objection has been received". . The decision of the Assistant Settlement Officer is also requested to be published in Form No. 8 which is to contain the decision of the Assistant Settlement Officer and further informing that any person aggrieved by the decision may prefer an appeal to the Tribunal within three Months from the date of the decision. The manner of publication is found in Form No. 8. It requires the village officers to publish the same by (1) affixing in the village chavadi or in some conspicuous public place in the village which is to be specified and (2) by announcing the, fact by beat of tom. The village officer should return the original with the certificate of having duly published the same. Since the order, specifically stated that necessary, notices have been served and published as per the rules and there being no evidence to show that this statement in the order is in any way incorrect, we have to presume that the necessary notices were issued and published as per the rules. In the foregoing circumstances " we are of the view that the temple shall be deemed to be a party to the proceedings and had notice of the same and that therefore the order of the Assistant Settlement Officer shall be deemed to be binding on the temple. 21. This leads us to the question as to whether the determination of the person who is entitled to a ryotwari patta under Section 8 or 9 is "in respect of matters to be determined for the purposes" of the Act so as to make such order or decision not liable to be questioned in any Court of law under Section 46 and whether such decision or determination is "on any matter falling" within the jurisdiction of the Assistant Settlement Officer or the Tribunal so as to make it binding on the parties to the proceedings or persons claiming under them in any suit or proceeding in a Civil. Court within the meaning of S. 43 of the Act. 22. Under S. 11, the Assistant Settlement Officer has jurisdiction to "enquire into the claims of any person for ryotwari patta under this Act in respect of any Inam laid and decide in respect of which land the claim should be allowed". This provision is analogous to Section 15 (1), TamilNadu Estates (Abolition and Conversion into Ryotwari) Act (TamilNadu Act 26 of 1948 -- hereinafter referred to as the Abolition Act). Under that provision, jurisdiction is conferred on the Settlement Officer to "examine the nature and history of all lands in respect of which the land-bolder claims ryotwari patta under S. 12, 13 or 14 as the case may be, and decide in respect of which lands the claim should be allowed". An appeal is provided under S. 15 (2) against the decision of the Settlement Office,- to the Tribunal, and . (b) of sub-section (2) of S. 1 provided that the decision of the Tribunal on any such appeal shall be final and not liable to be questioned in any Court of law. 23. This provision in S. 15had,come up for consideration in a number of decisions of this Court Suffice it to refer to the decision of Ismail, J. (as he they was)in Narayanaswami Vellalar v. Rangaswami Konar (1973-86 Mad LW. 276) in which all the earlier decisions were considered and it was held that the Settlement Officer and the Tribunal under Section. 15. Have exclusive jurisdiction to decide. (1) the mature and history of the land, that is to say, whether a land is a private or a ryoti land and (2) to determine the entitlement or right of the landholder in respect of the land for ryotwari patta. The decisions which took the same view and rendered subsequent to this decision are P. A. Sbukur- v. K. S. Sundara Mudaliar (ILR (1976) 1 Mad 366by Varadarajan, L as he then was); Chinnappa Gounder v. S. Seshadri Iyengar (AIR 1981 - Mad - 8). and the decision of, one of us reported in Arulandit Udayar V: PalaniapPR Ambalarn (1982-1 Mad LY 257). 24. The provisions of TamilNadu Minor Inams (Abolition and Conversion -into Ryotwari) Act (TamilNadu Act'10 of 1963) are analogous to those in the Abolition Act and the language used in Sec. ft relating to the determination of the person Who is entitled to ry6twari patta is very similar to the one in S. 15, Abolition Act. There could therefore be no doubt that the finality attached under Sec. 46 would cover not only the determination of the nature of the land but also the determination of the Person entitled to a ryotwari patta 'in respect of that land. These, two matters being questions to be determined for the Purpose of the Act and are matters failing within the decision of the Assistant Settlement Officer and the Appellate Tribunal under Sec.11, they shall also be binding on the parties and persons claiming under them In any suit or proceeding in a civil Court under S. 43. 25. The learned counsel I for the seventh claimant temple brought to our notice-.the decision of a Division Bench of this Court in Second Appeals Nos. 904 and 1250 of 1978 dated 22-10-1982. In that case, the second appeals originally came before a learned single Judge who referred the following questions for determination by Division Bench : - "Whether the grant of patta under I the Estates Abolition Act is conclusive on, the question of title; in other- words, whether the Civil Courts are barred from deciding the dispute relating to rival claims 26. The answer given by the, Bench was that a determination as to who is entitled to a patta will not bar the jurisdiction of Civil Courts to decide the question of title and in the words of the Division Bench, for the following reasons : - "1. Act XXVI of 1948 is primarily intended to determine the class of land whether, the land is ryoti or non-ryoti. 2. The question of title is only incidental in the proceedings for the grant of patta and such a decision cannot be said to be final amongst contesting claimants. 3. The Patta issued under Section It of the Act is only a Bill of Revenue and one piece of evidence of title and the same cannot be said to be conclusive in the matter of ownership. 4. The purpose of enquiry under the Act is only to effect a settlement, viz., to decide the assessment in respect of Vie land and ensure the payment of such assessment to the State. 5. There is no provision under the Act to decide the disputes as to title between the two rival claimants. 6. Section 64-C only states that the orders passed in respect of matters to be determined for the purpose of the Act shall not be questioned in any Court of law and nowhere in the Act it is stated that the institution of civil suits to decide the question of title in respect of Properties dealt which under the provisions of the Act is prohibit_ ed and exclusion of Civil Court's jurisdiction can be inferred only if Section 64 creates a hierarchy of authorities to finally decide the dispute." 27. We have no quarrel with the first reasoning. We are unable to agree with the second, third and the fourth reasoning's. It has been held in a number of Bench decisions and the decision of Ismail, J. (as he then was) in Narayanaswami Velalar v. Rangaswamy Konar, (1973-86 Mad LW -275) and that of Varadaraian, 1. (as he then was) ,in P. A. Shukur v. K. S. Sundara Mudalar (ILR (1976) 1 Mad 366) and Chinnappa Gounder V. Seshadri Iyengar, AIR 19A Mad 8, that the determination on of ' title is neither incidental to the effecting of ryotwar settlement and incidental to the proceedings for the grant of patta and that the exclusive jurisdiction vested in the authorities was to decide the "entitlement" or the right of a person to a ryotwari patta, and that the grant of ryotwari Patta is merely a consequential act following the determination of the right of the person to obtain the patta in respect of a particular land. In fact, it is more or less in the nature of a decree following the judgment, and the decision that is contemplated by Section 15 is a judgment The very reasoning found in the third and the fourth grounds above~ referred to was specifically mentioned and rejected. We are also unable to agree that there is no provision under the Act to decide the dispute. as to title between two rival claimants or to the scope of Section 64-C, Abolition Act. In fact, this point in our view is covered by the decisions of the Supreme Court in M. Chayanna. v. K. Narayana and Chenchulakshmamina v. Subrahmanya Reddy . The Division Bench of this Court distinguished these two cases on the ground that they related to cases under the provisions of the Andhra Pradesh Estates Abolition Act in which Section 56 is still in the statute book and that the two decisions cannot apply to a case relating to Section 64-C, TamilNadu Abolition Act. It is true that Provision similar to Section, 56, Tami1nadu Abolition Act which was omitted later was there in the statute book in the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act and the decisions specifically refer to Section 56. However, we have no doubt that the ratio of the judgment of the Supreme Court is much wider and could not be restricted as a decision rendered under Section 56 alone. In M. Chayanna v. K. Narayana after tracing the provisions of the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act, Chinnappa Reddy, J. speaking for the Court observed as follows (at page 1323): - "Now the Act broadly confers on every tenant in an estate the right to obtain a ryotwari patta in respect of ryoti lands which were included or ought to have been included in his holding before the notified date and on the landholder the right to obtain a ryotwari patta in respect of land which belonged to him before tile notified date as his private lands. The Act makes express provision for the determination of claims of a landholder for the grant of ryotwari patta in respect of his alleged private ands, surely, in an Act aimed at the abolition of intermediaries and the introduction ,of ryotwari settlement, there must be a provision for the determination of the claims of ryots for the grant of ryotwari patta". Then the learned Judge referred to a Full Bench decision of the Andhra Pradesh High Court in Cherukuru Mucayya v. GaL:Ja Gopalakrishnayya wherein it was held that Section 56 (1) (c) was intended for the determination as to who the lawful ryoti was only for a limited purpose of fastening the liability to pay arrear of rent which had accrued before a notified date and for no other Purpose. Holding that the approach of the Full Bench was wrong, the Supreme Court observed as follows (at pp. 1323-24): - "The anomaly is that while express provision is found in Section 15 of the Act for the adjudication of claims by landholders for the grant of ryotwari pattas, there is, if the Full Bench is correct, no provision for. The adjudication of, claims by ryots for the grant of ryotwari pattas. It would indeed be anomalous and ludicrous us and reduce the Act to an oddity, if the Act avowedly aimed at region by the conferment of ryotwari pattas on ryots and the abolition of intermediaries is to be held not to contain any provision for the determination of the vital question as to who was the lawful ryot of a holding. The object of the Act is to protect ryots and not to leave them in the wilderness". 28. This forcible observation of the Supreme Court could not be restricted as merely referring to the provisions of S. 56. It could not have been the intention of the Legislative when omitting Section 56 from the provisions of the Tamilnadu Abolition Act that they wanted to leave the ryots in wilderness. Having regard to the object and Purposes of the Abolition Act, there could be no doubt that the Assistant Settlement 0-ficer has jurisdiction to adjudicate on the claims of ryots for the grant of ryotwari patta. Such an adjudication being essential for the purposes of the Act would be covered by Section 64-C. The decision in Chenchulakshinamma v. Subrahmanya Reddy followed the decision in M.Chayanna v. K. Narayana (AIR 1979 SC WO). 29. In fact, as observed in Sanjeevi Nicer v. Shanmuga Udayar ("65-2 Mad LT 204), the decisions of this Court had taken the view that both before and after the repeal of Section S6, the issue of patta would not take away the jurisdiction of a Civil Court to adjudicate upon competing titles to lands. Different reasonings have been given in different decisions and it is not necessary for us to trace all those judgments, as, in Our view, the decisions of Varadarajan, J. (as he then was) in P. A. Shukur v. K. S. Sundara Mudaliar (ILR (1976) 1 Mad 366) and Chinnappa Gounder, V. V. Seshadri Iyengar (AIR 1981 Mad 8), the decision of Ismail, J. (as he then was) in Narayanaswami v. Rangaswami (1973-86 Mad LW 276) and the decision in Arulandu Udayar v. Palaniappa Ambalain (1982-1 Mad LJ 257) have referred to all the decisions and held that the decisions as to the nature of the land and the person entitled to patta under Section 11 or a similar finding that it is a ryoti land and not a private land are final and not liable to be questioned in a Civil Court and those judgments, in our view, are consistent with the ratio of the two decisions of the Supreme Court above referred to. Since we are of the view that the Supreme Court decisions clearly cover, this question, we are unable to agree with the reasoning and the judgment of the learned Judges of the Division Bench. 30. We may also mention that against the decision of one of us reported in Arulandu Udayar v. Palaniappa Ambalam. (1982-1 Mad 257) an appeal was filed in the Supreme Court under Article 136 of the Constitution relying on the judgment of the Division Bench of this Court in Second Appeals Nos. 904 and 1250 of 1978. The Supreme Court in S. C. P. No. 7871 of 1981 dated 14-2-1983 dismissed the same, approving the decision in Arulandu Udayar V. Palaniappa Ambalarn (1982-1 Mad LJ 257). 31. The decisions in O. P. No. 98 of 1942 and 0. P. No. 104 of 1942 were under S. 78, Hindu Religious and Charitable Endowments Act. One Panchanatha Subramania yer claiming to be a trustee appointed by the temple committee filed those petitions for recovery Of possession of the lands now in question from Krishna Gurukkal and some others who are the predecessors-in title of claimants 1 to 6. Those petitions were dismissed on the ground that the Gurukkals, were doing archaka service and that they had been in possession and enjoyment of the lands, doing archaka service. This finding may support a contention that the inam was one burdened with service. But having regard to the scope of application under Section 78, it could not be considered that it is a finding on a question of title and thus constituted res. judicata. Even in 0. P. 12 of 1939, there was only an observation that the Gurukkals had been in possession and enjoyment and no definite finding on the question of title was given. In the circumstances, we are unable to agree that there was any finding in 0. P. No. 12 of 1939, 0. P. No. 98 of 1942 or 0. P. No. 104 of 1942 which could be treated as res judicata. However, on our finding on the other point based on the order of the Settlement Officer, this appeal is allowed. The judgment and decree of the Court below are set aside. However, there will be no order as to costs. 32. Appeal allowed.

Author: V Ramaswami

Subramania Gurukkal And Ors. vs Arulmighu Thirurnaleswaraswamy ... on 30 March, 1984

Madras High Court

JUDGMENT N. K. Jain, J. 1. This order shall dispose of the Department's applications under Section 256(2) of the Income-tax Act, 1961 (for short, "the Act"), made in all the three aforesaid miscellaneous civil cases to direct the Income-tax Appellate Tribunal, Indore, to refer the undernoted three questions said to be of law to this court for its opinion arising out of its common order dated February 16, 1990, passed in I. T. A. Nos. 447, 448 and 449/(Ind) of 1986 and its refusal to refer the questions by order dated November 21, 1990, passed in R. As. Nos. 104, 105 and 106/(Ind) of 1990 : " (i) Whether, on the facts and in the circumstances of the case, the Tribunal was correct in deleting the addition of Rs. 78,000 on account of unexplained investment in the property in the name of the assessee's wife when it was clearly established that the gift by Shri Devkinandan Choubey to the assessee's wife was false as the said person had very limited means ? (ii) Whether, on the facts and in the circumstances of the case, the Tribunal was correct in coming to the conclusion that the assessee was not the owner of the property in question when the assessee's wife had no means to invest merely on the ground of alleged loan of Rs. 8,000 by the assessee and savings with her of Rs. 4,554 when the major amount of investment by her was not proved ? (iii) Whether, on the facts and in the circumstances of the case, the Tribunal was correct in holding that the income from the said property was not assessable in the hands of the assessee when his wife was only a benami ?" 2. The assessee is a Sub-Divisional Officer of Irrigation Department of the Government of Madhya Pradesh. The assessment years involved are 1982-83, 1983-84 and 1984-85. In the course of assessment proceedings for the assessment year 1982-85, the Income-tax Officer made enquiries regarding house property which stood in the name of Smt. Kiran Dubey, the wife of the assessee, purchased from the Madhya Pradesh Housing Board, for a sum of Rs. 82,564. According to the assessee, the house was purchased by his wife and the source of investment was as under : Rs. Gift from Shri Devkinandan Choubey, uncle of Smt. Kiran Dubey 70,000 (2) Loan from the assessee 8,000 (3) Savings of Smt. Kiran Dubey 4,564     82,564 3. On enquiries the Income-tax Officer found that the alleged gift by Shri Devkinandan Choubey was not genuine inasmuch as the donor was not in a position to make such a gift. The Income-tax Officer came to the conclusion that the said house was purchased by the assessee himself benami in the name of his wife. He, therefore, added Rs. 78,000 and also Rs. 8,000, the alleged loan advance made by the assessee to his wife, to the income of the assessee in the assessment year 1982-83. In the subsequent assessment years 1983-84 and 1984-85, the rental income of the house was also added to the income of the assessee. 4. On appeal, the Appellate Assistant Commissioner vide his order dated February 2, 1986, sustained the addition of Rs. 78,000 only but deleted the addition of Rs. 8,000 and maintained the assessment of income from the said property. In second appeal, the Tribunal by its common order dated February 16, 1990, reversed the concurrent findings of the two authorities below about the ownership of the property, deleting all the aforesaid additions. The Tribunal also rejected the Department's application under Section 256(1) of the Act for stating the case and referring the said questions of law for the opinion of this court. 5. The Department has, therefore, made these applications under Section 256(2) of the Act for directing the Tribunal to state the case and refer the questions to this court on the following grounds : (1) That, the Tribunal erred in law in holding that the poverty stricken uncle could be held to have advanced money to the wife of the assessee, when he was unable to provide for his own children. (2) That, the mere payment of gift-tax could not create funds either in the hands of the wife of the assessee or the alleged donor uncle and as such this fact did not entitle the Tribunal to quash the addition. (3) That, the status and service of the assessee were sufficient to generate the income, out of which the property in the name of the wife was purchased. The Tribunal erroneously understood the doctrine of burden of proof and reversed the assessments duly made. 6. We have heard Shri D. D. Vyas, learned counsel for the applicant? Department, and Shri G. M. Chaphekar, learned senior counsel appearing with Shri S. S. Samvatsar, advocate, for the non-applicant/assessee. 7. The Tribunal's order is obviously based on appreciation of facts. There could be no dispute with the finding of the Tribunal that part of consideration, i.e., Rs. 4,564, was paid by the wife of the assessee and that Rs. 8,000 were advanced to her by the assessee himself. We find ourselves in full agreement with the Tribunal that the burden of proof was on the Department to show that the rest of the consideration amount was also paid by the assessee himself and that the wife was a mere benamidar for her husband. The Tribunal found that no attempt was made on behalf of the Department to lead evidence to show that the assessee-husband had any funds outside the known sources of his income from which he could have contributed the sum of Rs. 70,000 to his wife for purchasing the said house. The Tribunal relied upon the decision in the case of L. Sheo Narain Lal, In re [1954] 26 ITR 249 of the Allahabad High Court and held that merely because the Income-tax Officer did not consider the story of gift by the uncle to her niece to be believable, it was not enough to come to the conclusion that the rest of the sale consideration, i.e., Rs. 70,000 must have been contributed by the assessee-husband. All these findings of the Tribunal, in our opinion, are findings of fact based on appreciation of evidence and as such no referable question of law arises from the order of the Tribunal. 8. In CIT v. Ashoka Marketing Ltd. [1976] 103 ITR 543, the Supreme Court has held (headnote) : " That, on the facts, whether or not the assessee had concealed his income was a question to be decided on the facts of the case, and that since in this case the decision was based on the respondent's agreement with the D. J. and Co., which the Tribunal accepted as true, no question of law arose from the order of the Tribunal." 9. Nothing substantial could be demonstrated before us so as to disclose that the findings arrived at by the Tribunal were perverse and not supported by the evidence on record. We are, therefore, satisfied that the order of the Tribunal is based on appreciation of facts and does not give rise to any referable question of law. 10. We thus dismiss the applications but without any order as to costs. Counsel fee is, however, fixed at Rs. 750 for each side, in each case, if certified. 11. This order be retained in Miscellaneous Civil Case No. 219 of 1991 and a copy of each be filed in Miscellaneous Civil Cases Nos. 220 of 1991 and 221 of 1991.

Author: N K Jain

Commissioner Of Income-Tax vs J.P. Dubey on 8 March, 1996

Madhya Pradesh High Court

'"R/A~RO;5,'T" c MAIN _ 1 A IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 02" DAY OF SEPTEMBER, 200éFA'_ BEFORE THE BON'ELE MR.JUSTIcE S,AEDUL"NATEER"»T. R.F.A.NO.341 OE 2009 {RES} BETWEEN: MR.pARASMAL S/O GTRDHARTLAL _ AGED ABOUT 62 YEARS _H;, »,au». PROP.M/S MANGILAL METAL CORPORATION _~ NO.1, E.S.LANE*,_ ,"""»A Hj;_ I ,1 ARCOT SRENIVASAQEAR7STREET"*A' _W BANGALORE_56U053_q~vg_1g. ;'{v , ... APPELLANT {By Sri. T E SATTSEOEANDRA KUEAR, ADV.) AND SMT.K.C.SETVAMMA_ A AGED ABOUT 83 YEARS' W/OwLATE MAAADEVARRA GTRTNAgAR,,§®_EEASE 'VEARGALORE-569085 ...RESpONDENT (By Sri_RAfiA¢OpALANATDD, ADV.) ,'u;_ TRIS RFA Ts FILED U/S 96 OF CPC AGAINST ..VéUDGEERT AND DECREE DATED: 21.01.2009 EASSED TN ._ .j,O S NO.6493/2005 ON THE FILE OE TEE XEV' ADDL. "_vCfTY CTVTL JUDGE, BANGALORE CETY, DECREEZNG TEE *,.SUT FOR EJECTMENT AND MESNE PROFITS. ,2, THIS REA COMING ON FOR ORDERS THIS DAY,-.__ THE? COURT DELIVERED THE FOLLOWING: 7 J U D G M E N T This appeal is directed against'_Lheip" judgement and decree in O.$.Nop6§93/2Do5,dated} 21.1.2009 on the filepgoflf tiqe_-"'v-xiv_.p¢1av'i§' Civil Judge, Bangalore. RIhe_appellant was the defendant in the shit and the tespondent was the plaintiff, 2. Ihe" shit Vfiled.?bfg the plaintiff was "for ejeetnent pi the defendant from the suit temis = sohedfile'premisessand"for mesne profits. The Court below.decfeed the suit in the following '"{i)f?he suit of the plaintiff is decreed with costs as under: (ii) The plaintiff is entitled to ':eject the defendant from the suit schedule property. The defendant is directed. to deliver vacant possession of the suit schedule -3- property within three months from today, failure of which theg, plaintiff is entitled to recover a a vacant possession of' the _sfiitf,';.* schedule property from _r,the~fl defendant by due process of lewd Vi (iii) The plaintiff is entitied to mesne profits from the date or tfiéw' suit i.e., g7.8.gQbSati;1 recovery of possession of the suit schedule property. (iv) iThére_ishail_ be "a" separate enquiry tn ascertain mesne profits iunder *;a§ro:e Rule 12 CFC. (Vi"Drawideoreegaccordingly." tux 3dn_When: the xnatter is taken for orders todayfriearhed counsel for the parties submit that 'the imatter has been amicably settled ih,betweeh the parties. They have already filed ayijoint memo dated 31.8.2009, which is as Wfinder:

Author: S.Abdul Nazeer

Mr Parasmal vs Smt K C Shivamma on 2 September, 2009

Karnataka High Court

Civil Revision No.4158 of 2009 -1- HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** Civil Revision No.4158 of 2009 DATE OF DECISION: 17.08.2009 **** Gulshan Lal and another . . . . Petitioners VS. Om Parkash & another . . . . Respondents **** CORAM : HON'BLE MR.JUSTICE SURYA KANT **** Present: Ms. Rachna Arora, Advocate for the petitioner Mr. Vinod Gupta, Advocate for respondent No.2 ***** SURYA KANT J.(ORAL) This Revision Petition is directed by the owner and driver of the alleged delinquent vehicle, against the order dated 1st June, 2009 passed by the Motor Accident Claims Tribunal, Chandigarh, whereby their evidence has been closed in a claim petition filed under Section 166 of the Motor Vehicle Act. Notice of Motion was issued and in response thereto, counsel for the parties have been heard. Learned counsel for the petitioner submits that given one opportunity, the petitioners shall lead their entire evidence at their own responsibility. Learned counsel for the respondent-claimant has no serious objection, if one such opportunity is granted to the petitioners. Having regard to all the attending circumstances and the stand taken on behalf of the petitioners, this Revision Petition is allowed to the extent that the impugned order dated 1st June, 2009 passed by the Tribunal is set aside and it is directed that one more opportunity may be granted to the petitioners to lead their evidence at their own responsibility, however, subject to payment of cost of Rs.2500/- to the respondent-claimant. (SURYA KANT) JUDGE 17.08.2009 shonkar

Gulshan Lal And Another vs Om Parkash & Another on 17 August, 2009

Punjab-Haryana High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM CRL.A.No. 1939 of 2010() 1. FIROSE V.P ... Petitioner Vs 1. STATE AND ANOTHER ... Respondent For Petitioner :SRI.T.K.KUNHABDULLA For Respondent :SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDI The Hon'ble MR. Justice PIUS C.KURIAKOSE The Hon'ble MR. Justice P.S.GOPINATHAN Dated :28/10/2010 O R D E R PIUS C KURIAKOSE & P.S. GOPINATHAN, JJ. = = = = = = = = = = = = = = = = = = = = = = = CRL.APPEAL NOS.1939 OF 2010 & 2009 OF 2010 = = = = = = = = = = = = = = = = = = = = = = = = = = DATED THIS, THE 28TH DAY OF OCTOBER, 2010. J U D G M E N T Gopinathan, J. These appeals are preferred under Section 21 of the National Investigation Agency Act, 2008, herein after referred to as Act 34/2008. The appellant in Crl.A. 1939 of 2010 is accused No.12 in S.C. 1 of 2010 on the file of the Special Court for the Trial of National Investigation Agency cases (NIA Cases), Kerala, Ernakulam. The appellants in the other appeal are accused Nos. 6 and 18. They are being prosecuted by the second respondent for offences under Section 3 read with Section 13(ii), 18 and 39 of the Unlawful Activities Prevention Act, 1967, amended by Act, 2004 and Section 120 B, 121 (A) 124 A, 465 and 471 of the Indian Penal Code. Accused No.6 was arrested on 31.10.2008, Accused No. 12 was arrested on 25.10.2008 and Accused No. 18 was arrested on 1.11.2008. Eversince arrest, they are in custody. Accused No. 6, 12 and 18, along with other accused, preferred Crl. M.P. 947 of 2010 seeking an order to release them on bail. By the impugned order dated 18.8.2010, the above application was dismissed. Assailing the above order, these appeals were preferred. 2. Section 21 of the National Investigation Agency Act reads as follows: CRL.A. 1939 & 2009/2010 2 "21. Appeals --(1) Notwithstanding anything contained in the Code, an appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court to the High Court both on facts and on law. (2) Every appeal under sub-section (1) shall be heard by a Bench of two Judges of the High Court and shall, as far as possible, be disposed of within a period of three months from the date of admission of the appeal. (3) Except as aforesaid, no appeal or revision shall lie to any court from any judgment, sentence or order including an interlocutory order of a Special Court. (4) Notwithstanding anything contained in sub-section (3) of section 378 of the Code, an appeal shall lie to the High Court against an order of the Special Court granting or refusing bail. (5) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment, sentence or order appealed from: Provided that the High Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of thirty days: Provided further that no appeal shall be entertained after the expiry of period of ninety days." 3. The impugned order being one rejecting application for bail, it is appealable under Section 21(1) and 21(4). Such appeal is to be heard by a Bench of two Judges of the High Court under Section 21(2). Therefore, these appeals were posted before us. 4. The learned counsel for the appellant, the learned Public  CRL.A. 1939 & 2009/2010 3 Prosecutor representing the first respondent State and the Assistant Solicitor General representing the second respondent were heard. 5. The allegation against the appellants are that the appellants joined as member in the conspiracy arranged for facilitating terrorism and thereby waging war against the Nation and in furtherance of their common intention and knowledge, they along with the other accused aided and assisted in facilitating terrorism by attending the classes arranged for the above purpose at Neerchal, Poothappara and also abetted accused Nos. 7, 8, 9 and 15 to attend the classes at the above places and at Jammu and Kashmir and they facilitated Accused 7, 8, 9,10 and 15 associated with LeT and get trained in arms and ammunition with the intention of facilitating terrorism and to commit terrorist activities and they also decided to make fake identity cards to conceal their identity with the intention to design wage war against the Government. 6. Sri. T.K. Kunhabdulla very vehemently submitted that the appellants were falsely implicated and they were not at all connected with any offence alleged and they are in custody for about two years and that the special court was not justified in declining bail. 7. The learned Assistant Solicitor General, appearing for the second respondent vehemently opposed the application for bail stating that the  CRL.A. 1939 & 2009/2010 4 appellants are involved in terrorist activities joining hands with Lashker-e- Toiba, a banned terrorist organization having base in Pakistan and their activities are thereat to security, unity and integrity of the Nation and that there are reasonable grounds for believing that accusation against the appellants is prima facie true and in the light of the proviso to Section 43D (5) of the Unlawful Activities (Prevention) Act, the appellants are not entitled to be released on bail. For a correct appraisal, a reading of Section 43D(5) along with its proviso would be relevant. It reads as follows: 8. In view of the above provision, we find that the appellants are not entitled to be released on bail, if the Court on perusal of the case diary or the report of the investigating officer made under Section 173 of the  CRL.A. 1939 & 2009/2010 5 Code of Criminal Procedure finds that there are reasonable grounds for believing that the accusation is prima facie true. The above legal position is not disputed by Sri. T.K. Kunhabdullah, the learned counsel appearing for the appellants. 9. The question then remains is whether the statement of the witnesses prima facie establish that the allegation is true or not. The learned Assistant Solicitor General took us through the statement of witness Nos. 43, 44, 47, 48,144,179 and 182 and also the statements of additional witnesses 11,12 and 13. Going by the statement of the above witnesses, we find that there are reasonable grounds for believing that the accusation against the appellants is prima facie true. On the other hand, the learned counsel for the appellants vehemently argued that even allowing the appellants to face trial, there would not be any evidence to sustain a conviction against them and that the appellants are amenable to any condition that may be imposed. We find that in a case like this, for considering whether the appellants are entitled to be released on bail, the court need not search to see whether there would be evidence against the appellants to convict them after trial. We don't prefer to go into the merits of the case at this stage as it may prejudice the appellants. Suffice to mention that going by the statements of the witnesses mentioned above, we  CRL.A. 1939 & 2009/2010 6 are persuaded to believe that the accusation is primafacie true. We cannot shut our eyes against the terrorist activities affecting the security, unity and integrity of the Nation. Imposing conditions may not be of any effect. In view of the proviso to Section 43D(5) quoted above, the appellants are not entitled to be released when there are reasons or grounds for believing that the accusation is prima facie true. An identical matter had been considered by the Apex Court in State v. Jaspal Singh Gill (91984 CRL. LJ 1211). It was a Special Leave Petition preferred against an order granting bail by the High Court. The Apex Court, while cancelling the bail order, has held that the respondent therein should not have been enlarged on bail in the larger interest of the State. Going by the allegations against the appellant we find that the allegations are of highest magnitude and punishment assigned is of extreme severity. Exercise of the judicial discretion in granting bail in cases like this had been laid down by the Apex Court in G. Narasimhulu vs. Public Prosecutor, A.P. (AIR 1978 SC 429). The Apex Court in Para 6, Krishna Iyer, J. held: Again, at para 7, it is held: 10. Bearing the above principle in mind and having due regard to the nature and magnitude of the crime and the manner in which it was designed and executed as well as the forces behind, we find that granting bail by imposing conditions, we may not be able to secure the presence of the appellants to face trial and receive sentence or to prevent the appellants, if released on bail, from interfering with the prosecution witnesses or intercepting with the process of justice. Therefore, imposing conditions alone may not yield any effect. The trial court was justified in declining to grant bail. We find no reason to interfere with. 11. The learned counsel for the appellant submitted that accused No. 17 was granted bail in Crl. appeal No. 957/2001 by another Bench. We have gone through the judgment dated 13.9.2010 in that appeal. Cogent reasons are stated therein. The allegation against the accused No. 17 was that he harboured accused No. 15. The Division Bench found nothing to show that while accused No. 17 harbouring accused No. 15, accused No. 17 was aware that accused No. 15 was involved in terrorist activities. Here, the nature of allegations are entirely different. Therefore, the appellants herein cannot be equated with accused No. 17 for the purpose of granting bail. CRL.A. 1939 & 2009/2010 9 12. It is also seen that the first accused was granted bail by the committal court during the investigation stage for failure of the prosecution to file charge sheet within the time limit stipulated under Section 167(2) Cr.P.C., probably subject to modification by Section 43D of the Unlawful Activities (Prevention) Act, 1967 as amended by Act 35 of 2008. That ground is not available to the appellants herein. 13. Learned Public Prosecutor Sri. S.U. Nazar submitted that in two other cases, bail applications were filed before this Court and it was posted before separate Single Judges and the applications were considered and disposed of as if the Single Judge has got power to dispose of the bail applications. According to the learned Public Prosecutor, it is against the mandate of the law and that only a Bench of two judges alone can hear such petitions as appeal. One case is reported in 2010(3) KLT 524. Another one is Bail Application No. 6203 of 2010. That order is dated 14.10.2010. 14. Going by the above decisions, it did'nt appear that those bail applications were instituted against the order dismissing the petition seeking bail. If it was against order dismissing bail application, the argument of the learned Public Prosecutor is correct. However, no such objection was seen raised before the learned Single Judge. CRL.A. 1939 & 2009/2010 10 15. Referring to Section 21 (1), (2) & (4), which we quoted earlier, learned Public Prosecutor sought for an authoritative pronouncement. Going by Section 21 of Act 34/08, which we quoted earlier, we find that there is no room for any doubt that an order dismissing bail application is appealable under Section 21(1) and (4) and that appeal shall be heard by a Bench of two Judges. Therefore, under Section 21(2) such appeal shall be heard by a Bench of two Judges of the High Court. In the result, both the appeals are dismissed. PIUS C. KURIAKOSE, JUDGE. P.S. GOPINATHAN, JUDGE. KNC/-

Firose V.P vs State And Another on 28 October, 2010

Kerala High Court

PETITIONER: KARPAGATHACHI AND ORS. Vs. RESPONDENT: NAGARATHINATHACHI DATE OF JUDGMENT: 10/03/1965 BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. SUBBARAO, K. SHAH, J.C. CITATION: 1965 AIR 1752 1965 SCR (3) 335 CITATOR INFO : D 1974 SC 175 (11) R 1977 SC 394 (5,6) ACT: Hindu Law--Partition between co-widows--Whether right of survivorship can be relinquished--If repugnant to Transfer of Property Act, 1882 (4 of 1882) s. 6(a)--Onus. HEADNOTE: Two co-widows divided their husband's property and each entered into separate possession of her share. on the death of one of the widows her daughter the respondent took possession of her mother's share. The appellant the surviving widow filed a suit against the respondent claiming possession of that share. The Trial Court decreed the suit, which on appeal was set aside by the High Court. In appeal by certificate: HELD: (i) Under the Hindu Law the widows were competent to partition the properties and allot separate portions each, and incidental to such allotment each could agree to relinquish her right of survivorship in the portion allotted to the other. Such an arrangement was not repugnant to s. 6(a) of the Transfer of Property Act, 1882. [337 C-D]. Case law referred to. (ii) Mere partition of the estate between the two widows does not destroy the right of survivorship of each to the properties allotted to the other. The party who asserts that there was an arrangement by which the widows agreed to relinquish the right of survivorship must establish this arrangement b.v clear and cogent evidence. [338 B]. The respondent, in the instant case, had failed to discharge this onus. [338 B-C]. JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 998 of 1963. Appeal from the judgment and decree dated January 12, 1962 of the Madras High Court in Appeal Suit No. 292 of 1958. A.V. Viswanatha Sastri, V.S. Ramaswami lyengar and R. Thiagarajan, for the appellants. S.V. Gupte, Solicitor General, and R. Ganapathy lyer, for the respondent. The Judgment of the Court was delivered by Bachawat J. One Sivasubramania Pillai died in the year 1924 leaving him surviving his mother. two widows, Thialaiachi and Karpagathachi, and a daughter, Nagarathinathachi (respondent herein) born of Thialaiachi. The two widows inherited the properties left by Sivasubramania. in July 1927, they divided the bulk of the properties and each entered into separate possession and enjoyment of the properties allotted to her. The partition is evidenced by two partition lists called partition deeds, Exs A--I and B--45 dated July 14. 1927 and signed by both of them. Under this partition, two veils of land were set apart for the maintenance 336 of Sivasubramania's mother, to be enjoyed' by her during her lifetime, and on her death, to be taken and enjoyed by the two widows in separate portions as mentioned in the partition lists. On August 26. 1954, Thialaiachi died, and upon her death, the respondent took possession of the properties allotted to Thialaiachi under the partition of July, 1927. On December 8, 1954, Karpagathachi instituted against the respondent the suit, out of which this appeal arises, claiming possession of the suit properties. The respondent resisted the suit claiming that under the partition each widow gave up her right of survivorship in respect of the properties allotted to the other, and consequently on the death of Thialaiachi, the respondent as her daughter was entitled to take her share as her heir and to enjoy the same during the life of Karpagathachi. By his judgment dated August 18, 1958, the District Judge, East Thanjavur, rejected' the defendant's contention, and held that the division between the two widows was for convenience of enjoyment only, and decreed the suit in respect of the properties held by Thialaiachi under the partition of July, 1927. On appeal, the Madras High Court by its judgment dated January, 12, 1962 held that under the partition each widow gave up her life interest in the properties allotted to the other and consequently Karpagathachi was not entitled to recover possession of the properties allotted to Thialaiachi, set aside the decree of the District Judge, and dismissed the suit. Karpagathachi and several other persons impleaded as party respondents in the appeal before the High Court now appeal under a certificate granted by the High Court to this court under Art. 133 of the Constitution. Mr. Viswanatha Sastry appearing on behalf of the appellants contends that: (1) the right of survivorship of each widow in respect of her husband's estate is the chance of the surviving widow to take the entire estate of her husband on the death of the cowidow, and in view of s.6(a) of the Transfer of Property Act, 1882, the widows were not competent to enter into an arrangement transferring or relinquishing their right of survivorship; (2) the partition lists, Exs. A--I and B---45 not being registered, are not admissible in evidence; (3) the partition between the widows was for convenience of enjoyment only, and the respondent has failed to establish that each co-widow gave up her right of survivorship in respect of the properties allotted to the other. The learned' Solicitor-General appearing on behalf of the respondent disputed these contention. We are of opinion that the first contention of Mr. Viswanatha Sastry should be rejected. Under the Hindu law as it stood in 1924. two widows inheriting their husband's properties took together one estate as joint tenants with rights of survivorship and equal beneficial enjoyment. They were entitled to enforce a partition of those properties so that each could separately possess and enjoy the portion allotted to her, see Bhugwan Deen Doobey v. Myna Baee (1) [1867] 11 M .I. A. 487 337 Gauri Nath Kakaji v. Gaya Kuar(1). Neither of them could without the consent of the other enforce an absolute partition of the estate so as to destroy the right of survivorship, see Commissioner of Income-tax v. Smt. Indira Balakrishna(2) But by mutual consent they could enter into any arrangement regarding their respective rights in the properties during the continuance of the widow's estate, and could absolutely divide the properties, so as to preclude the right of survivorship of each to the portion allotted to the other. See Ramakkal v. Ramasami Naickan(3), Sudalai Ammal v. Gomathi Ammal(4). Likewise, two daughters succeeding ,to their father's estate as joint tenants with rights of survivorship could enter into a similar arrangement. See Kailash Chandra Chuckerbutty v. Kashi Chandra Chuckerbutty(5) Subbammal v. Lakshmana lyer (6), Ammani Ammal v. Periasami Udayan(7). Such an arrangement was not repugnant to s.6(a) of the Transfer of Property Act, 1882. The interest of each widow in the properties inherited by her was property, and this property together with the incidental right of survivorship could be lawfully transferred. Section 6(a) of the Transfer of Property Act prohibits the transfer of the bare chance of the surviving widow taking the entire estate as the next heir of her husband on the death of the co-widow, but it does not prohibit the transfer by the widow of her present interest in the properties inherited by her together with the incidental right of survivorship. The widows were competent to partition the properties and allot separate portions to each, and incidental to such an allotment, each could agree to relinquish her right of survivorship in the portion allotted to the other. The first contention of Mr. Viswanatha Sastry must be rejected. The second contention of Mr. Viswanatha Sastry must also be rejected. A partition may be effected orally. By an oral partition, the two widows could adjust their diverse rights in the entire estate, and as part of this arrangement, each could orally agree to relinquish her right of survivorship to the portion allotted to the other. In the trial Court, the suit was tried on the footing that the partition was oral, and that the two partition lists were merely pieces of evidence of the oral partition, and no objection was raised with regard to their admissibility in evidence. In the High Court, the appellants raised the contention for the first time that the two partition lists were required to be registered. The point could not be decided without further investigation into questions of fact, and in the circumstances, the High Court rightly ruled that this new contention could not be raised for the first time in appeal. We (1) [1928] L.R. 55 I.A. 299. [1960] 3 S. C.R. 513, 517. (2) [1899] I.L.R. 22 Mad. 522. (3) [1912] 23 M.L.J. 355. (4) [1897] I.L.R. 24 Cal. 339. (5) [1914] 26 M.L,J. 479. [1923] 45 M.L.J. 1. think that the appellants ought not to be allowed to raise this new contention. We think that the third contention of Mr. Viswanatha Sastry is sound' and should be accepted. Mere partition of the estate between the two widows does not destroy the right of survivorship of each to the properties allotted to the other. The party who asserts that there was an arrangement by which the widows agreed to relinquish the right of survivorship must establish this arrangement by clear and cogent evidence. The respondent has failed to discharge this onus. It is common case that the partition is evidenced by Exs. A--1 and B...45. Exhibit B--45 is the list showing the properties allotted to Thialaiachi. The relevant portion of Ex. B....45 reads:-- Exhibit A--1 showing the properties allotted to Karpagathachi contains similar words. Now the two lists show that each widow is to "take and enjoy" the properties allotted to her. The corresponding Tamil words are "adainthu anuhavithu." These words do not either expressly or by necessary intendment exclude the right of survivorship of the other widow. The Tamil words "Sarva Swantantra Badyamayum" and "Santhathi pravesamayum" and other words indicating relinquishment of the right of survivorship are conspicuous by their absence. The words used in the two partition lists are wholly insufficient to show that the two widows relinquished their right of survivorship inter se. The fact that two separate partition lists were drawn up and each was signed by the two widows does not carry the matter any further. The two partition lists show that the two velis of land kept separately for the maintenance of the mother-in-taw were to be divided by metes and bounds on her death between the two widows. The division of the two velis on the death of the mother-in-law was agreed upon to avoid future disputes. The fact that Thialaiachi had a daughter and was older than Karpagathachi by 20 years does not show that Karpagathachi mush have agreed that Thialaiachi's daughter should enjoy the properties allotted to Thialaiachi after her death. After the partition, the pattas in respect of all the lands continued to be in the joint names of both the widows. If there was an absolute partition between the two widows. it is not explained why there was no separate mutation in the name of each widow in respect of the lands allotted to her. The deeds executed by Thialaiachi. Exs. B--3, B-4. B- 6. B---7 and B--8 to B---43 recite the partition, but they do not use words indicating that there was an absolute partition. The sale 339 deeds, Exs. A--3, A--4, and A--6 executed by both the widows are in respect of undivided properties and throw no light on the question at issue. The evidence on the record does not show clearly whether the sale deed', Ex. B--44, executed by both the widows relates to undivided properties, or whether it relates to properties as separately allotted to Thialaiachi. From time to time, Thialaiachi executed three wills, Exs. B--I, B--2 and A--5 giving to the legatees and particularly the respondent certain properties absolutely with full powers of alienation. The first two wills, Exs. B--I and B--2, refer separately to Thialaiachi's separate properties and to the properties obtained by her on partition. The recitals in the two wills do not indicate that Thialaiachi obtained her husband's properties on partition with absolute rights. The third will, Ex. A--5, does not purport to dispose of specifically the properties obtained by her on partition. Karpagathachi knew that Thialaiachi had executed the wills, but it is not shown that she knew of the contents of the wills. By Ex. A--2, both Thialaiachi and Karpagathachi made a free gift of some of the properties allotted to Thialaiachi. D.W. 1 is unable to explain why Thialaiachi joined in this deed. By sale deed, Ex. B--5, Thialaiachi sold absolutely some of the properties allotted to her and a notice, Ex. A--22, regarding the proposed transfer of the patta in the name of the vendee was served upon Karpagathachi. It is not clear if the patta was actualy transferred in the name of the vendee. The explanation of Karpagathachi that she protested against the transfer and ultimately received' one half of the sale price has not been believed. But assuming that Karpagathachi did not object to the transfer, this single circumstance does not establish that at the time of the partition, he had agreed to give up her right of survivorship in respect of he properties allotted to Thialaiachi. Karpagathachi (P.W. 1) denied that there was an absolute partition. She was not shaken in cross-examination. Nataraja Pillai P.W. 2) said that there was no talk that each should take the properties absolutely and it was agreed that each would enjoy separately. We find nothing in the evidence of P.W. 2 to show that the widows agreed to partition the properties absolutely so as to destroy the right of survivorship.Manickam Pillai (D.W. 1) said that at the time of the partition, Thialaiachi said that she had a daughter and if what was allotted for her share was given to her absolutely she would agree to the partition and Karpagathachi also wanted to have absolute rights. The District Judge rightly rejected evidence of D.W. 1. The partition lists were drawn up after consulting lawyers. D.W. 1 is unable to explain why words indicating absolute partition were not used in the partition lists. D.W. 1 had been in management of the properties of the respondent, yet he falsely denied this fact. He had intimate dealings with Thialaiachi and the respondent. On a meticulous examination of the oral and documentary evidence, the learned District Judge rejected the respondent's case that the widows had orally agreed to relinquish their 3 SCI---9 340 right of survivorship. We think that this finding is correct, and the High Court was in error in reversing this finding. In the result, the appeal is allowed, the decree and judgment passed by the High Court are set aside and those of the trial Judge restored'. In all the circumstances, we direct that the parties will pay and bear their own costs throughout, in this Court and also in the Courts below. Appeal allowed 341

Author: R Bachawat

Karpagathachi And Ors vs Nagarathinathachi on 10 March, 1965

Supreme Court of India

IN THE HIGH COURT OF KERALA AT ERNAKULAM Ins.APP.No. 38 of 2006(A) 1. ROOFS ENGINEERS & CONTRACTORS, ... Petitioner Vs 1. THE MATHRUBHUMI PRINTING & PUBLISHING ... Respondent 2. THE EMPLOYEES STATE INSURANCE CORPN., 3. ASSOCIATED BUILDERS, 4. KAP CONSTRUCTIONS, For Petitioner :SRI.A.M.SHAFFIQUE (SR.) For Respondent :SRI.U.K.RAMAKRISHNAN (SR.) The Hon'ble MR. Justice K.M.JOSEPH The Hon'ble MRS. Justice M.C.HARI RANI Dated :05/10/2010 O R D E R K.M. JOSEPH & M. C. HARI RANI, JJ. ----------------------------------------- INS. APPEAL NOS. 38 & 45 OF 2006 ------------------------------------------ Dated this the 5th October, 2010. JUDGMENT //True copy// PS to Judge  INS.APPEALS 38 & 45/2006 12 K.M. Joseph, J. Both these Appeals raise the following substantial questions of law: iii) Whether the Court below is legally correct in directing the immediate employer to pay ESI contribution at the first instance only on the ground  INS.APPEALS 38 & 45/2006 2 that the immediate employer is wrongly made as a party to the case. iv) Whether the immediate employer is a necessary party in an Insurance Case filed by the principal employer challenging the demand for contribution made by the ESI contribution. v) Whether the Court below is correct in deciding a claim under Section 75(2)(b) in a claim under Section 75(2)(a) when each claim in the aforesaid sections are independent claim for which independent proceedings are required. vi) Since the Act is not applicable to the appellant and no such code has been allotted whether the court below is correct in directing the appellant to pay the contribution." 2. The first respondent in both these Appeals entrusted certain construction works to the appellant in both these cases in its in its premises. The first respondent is a covered establishment under the Employees' State Insurance Act, 1948 (hereinafter referred to as the Act). Proceedings were taken under Section 45A  INS.APPEALS 38 & 45/2006 3 in respect of the liability of the first respondent towards the employees of the appellants. Against the said proceedings, the first respondent filed E.I.C. No.5/2000 before the Employees Insurance Court under Section 75 read with Section 77 of the Act. In the said proceedings, the appellants in these cases were also impleaded as respondents. Allegations were raised against the appellants that they are liable on the ground that they are principal employers for the reason that they are employing more than twenty employees. Thereafter, an amendment was permitted by the court by which the first respondent claimed that the appellants be directed to remit the amount as they the are immediate employers. 3. The court did not accept the case of the first respondent that the appellants are liable as principal employers. However, acting on notions of justice, the court proceeded to, inter alia, dispose of the matter by directing the appellants in both these cases to remit the amounts due. It reasoned that the appellants are the immediate employers and under the Act, while the responsibility is  INS.APPEALS 38 & 45/2006 4 to pay the amounts is cast on the principal employer, the principal employer has a legal right to recover the same from the immediate employer. In the circumstances of the case, the court took the view that it is justified in directing the appellants to remit the amount. In fixing the wage element, the court did not accept the version of the first respondent and instead, fixed the wage element as twentyfive per cent of the total contractual payment. It is feeling aggrieved by the same that the appellants are before us. 4. We heard the learned counsel for the appellants, learned senior counsel appearing on behalf of the first respondent and also the learned counsel appearing on behalf of the second respondent Corporation. 5. Learned counsel for the appellants in both these cases would submit that the order is in the teeth of the statutory scheme of the Act. He would draw our attention to Section 40 of the Act. He would contend that under the Act, it is the obligation of the principal employer to pay the contribution in respect of the  INS.APPEALS 38 & 45/2006 5 employees of the immediate employer. Upon payment being made, the principal employer becomes entitled by virtue of the provisions of the Act to recover the same under Section 41 from the immediate employer. He would submit that actually the appellants would have been entitled to the benefit of the exemption granted under the Act, but for the fact that they are carrying on the work in the factory premises. Learned counsel for the appellants would also point out that the fixation of the wage element at twentyfive per cent in the case of a construction in question, which is a new building, is not sustainable, while twentyfive per cent could have been taken as the norm in respect of contract of repairs and maintenance, which is not the case in these matters. Per contra, the learned senior counsel for the first respondent would address the following contentions before us: He would submit that this is a peculiar case where the appellants/immediate employers did not furnish the first respondent with the necessary details about the wages being paid  INS.APPEALS 38 & 45/2006 6 to its workers. He would further point out that under the Act, it is not open to the principal employer to make any deduction of the wages of the employees of the immediate employer, as deduction of wages is permissible only with respect to the employees of the principal employer. He would also contend that this is a case where, even though it may be true that the appellants were not parties to the proceedings under Section 45A, they were none-the- less made parties before the court and they ought to have utilised the opportunity so afforded to place any data they wished in support of their contentions. He would submit that, at any rate, the ultimate responsibility is fixed under the Act on the immediate employer in respect of employees of the immediate employer and in the peculiar circumstances of the case, the decision of the court in so far as it relates to the recovery of the amounts directly from the appellants may not be disturbed. Learned counsel appearing on behalf of the Corporation also would submit that the ultimate responsibility is cast on the immediate employer.  INS.APPEALS 38 & 45/2006 7 6. After having heard the learned counsel for the parties, we are of the view that the directions issued as against the appellants by the court may be difficult to sustain. Sub-section (1) of Section 40 reads as follows: Section 41, thereafter provides for recovery of the contribution from the immediate employer. It reads as follows: (1) A principal employer, who has paid contribution in respect of an employee employed by or through an immediate employer, shall be entitled to recover the amount of the contribution so paid (that is to say the  INS.APPEALS 38 & 45/2006 8 employer's contribution, as well as the employee's contribution, if any from the immediate employer, either by deduction from any amount payable to him by the principal employer under any contract, or as a debt payable by the immediate employer." Sub-section (1A), no doubt, provides that the immediate employer shall maintain a Register of employees employed by or through him as provided in the Regulations and submit the same to the principal employer before settlement of any amount payable under Sub-section (1). It is open to the immediate employer to recover the employees' contribution from the employees or by through deduction from wages. The conclusion is inevitable on a perusal of Sections 40 and 41 that the legislature intended that it is incumbent upon the principal employer to pay the contribution in respect of an employee of the immediate employer also. But for Section 41, there would have been no legal right with the principal employer to even recover it from the immediate employer. Thus, the Scheme is that the principal employer has to pay initially and  INS.APPEALS 38 & 45/2006 9 then it is open to him to recover the same from the immediate employer. 7. In this case, as already noted, the first respondent was called upon to remit contributions in respect of the employees of the immediate employer. Proceedings were initiated under Section 45A. The appellants were not parties in the said proceedings. In proceedings under Section 75 initiated by the principal employer, the appellants were made parties. The principal allegation against them was they would be liable to make contributions in their capacity as principal employer. It is not in the region of any dispute that the court did not accept the case of the first respondent/principal employer that the immediate employers/appellants could be treated as principal employers. Once it was found by the court that the appellants were not liable in their capacity as principal employer, we fail to see how the court could have proceeded to direct the appellants to make the payment. The court is a creature of the statute. Its powers are circumscribed  INS.APPEALS 38 & 45/2006 10 by the provisions under which it is created. We are not shown the source for the court to exercise any residuary powers or in other words, we cannot describe the court as a court of unlimited jurisdiction. Certainly, the court cannot give a direction which is opposite to the statutory scheme contained in Sections 40 and 41 of the Act to which we have already adverted to. Yet, this is precisely what the court on motions of justice proceeded to do. We must also notice that this is a case where we should emphasis the fact that the appellants were not even parties before the statutory authority in proceedings under Section 45A. 8. Learned counsel for the appellants in both these cases would submit that if proceedings are taken under Section 45A for which there is power indeed under the proviso to Section 45A against them and the amounts are quantified after giving an opportunity to them and with the first respondent also participating in the proceedings, the appellants will pay up. In such circumstances, we are inclined to hold that the appellants could not  INS.APPEALS 38 & 45/2006 11 have been called upon to pay the contributions by the court without calling upon the principal employer to pay the amount by the court and that too, when the appellants were not being made parties to the proceedings under Section 45A. The order dated 19.10.2005 which is appealed before us, to the extent they are against the appellants in these cases, shall stand set aside. Proceedings will be taken by the second respondent against the appellants under Section 45A and concluded within a period of two months from the date of receipt of a copy of this Judgment. The first respondent can also be made a formal party in the proceedings. Sd/= K.M. JOSEPH, JUDGE Sd/= M.C. HARI RANI, JUDGE kbk.

Roofs Engineers & Contractors vs The Mathrubhumi Printing & ... on 5 October, 2010

Kerala High Court

ORDER K.S. Garewal, J. 1. Khushi Mohmmad chowkidar was examined as RW.2 and proved entry of birth of Lawinder Singh son of Bhajan Singh in his register and its photo copy was placed on the record as Ex. RW.2/A. Incross-examination the witness categorically stated that the digit 9 regarding month has been changed by manipulation to digit 2 and similarly the date has also been changed to 20 from 2. He also admitted that against column date of birth the date mentioned is 2.9.1983. This statement appears to be correct as photo copy of the certificate also shows that what the witness stated and what the counsel has argued is the correct position that dated 2.9.1983 has been changed to read as 20.2.1983. The two school certificates relied upon by the petitioner confirm that he was born on 2.9.1983. Therefore, the correct date of birth of the petitioner was September 2, 1983. Court below was in error in holding that the petitioner was not juvenile on the date on which occurrence took place i.e. March 20, 1999. In fact on the date on which occurrence took place, the petitioner was under 16 years of age and was on all counts a juvenile. Order of the learned Sessions Judge, Kapurthala is hereby set aside and it is held that the petitioner Lavinder Singh alias Sodhi was juvenile on the date of the occurrence and is entitled to all the benefits under the Juvenile Justice Act, 1986 as well as the Juvenile Justice (Care and Protection of Children) Act 2000. Petition is accepted in the terms stated above. 2. Petitioner shall be at liberty to seek bail in view of his juvenile status having been determined.

Author: K Garewal

Lawinder Singh @ Sodhi S/O Bhajan ... vs State Of Punjab on 18 February, 2003

Punjab-Haryana High Court

[Complete Act]

Central Government Act

Ci'E.P N0572/2009 & Misc.CrE.569/2009 EN THE PHGH COURT OF' KARNATAKA AT BANGALORE DATED THIS THE 1913* DAY OF MARCH 2009 . BEFORE THE I-ION'BLE DR. JUSTICE K. BHAKTHAVA'f'SALA'~ A' CRIMINAL PETITION No.::372/2GQ9«_ -I' ' 86 . MISC. CRL. NOT559/2009'-._ BETWEEN Mrs. Sunita Kumari, Age: 37 years, W/0 Mr. Manoj Kumar, -. v N0.B4-356, Kendriya Vihar, . A Venkatala Amanikere, , ' Yeiahanka, H _. , . Bar1ga1ore-560 064.? i _ " _ ' Petitioner {By Mrs. Rupa B"P__, Adm', Aésociates, Advs., for petitioner) . . ' p AND: . 1. State» Qf'I{arniataiKaV,ii"'V __ By Yelahanka PQ'1iee"Statiion, :fBanga10re« V' aRe'p. by State Pub.1iC"}7rosecutor, High Court of Karnataka, « - -B.ajvngei1ore»56O M--ré;-- E_\Eoor¥3;1s~Sahr Siddiqui, v V._Age.' 36 years", i WV]"o--._Dr. Afgha M A Siddiqui, . A _No..E2~3¥~2,09, Kendriya Vihar, V" _. ' A Venkeitala Amanikere, Cr1.P No.572f2009 & Misc.Crl.569/2009 Bellary Road, Banga1ore--56O 064. Re spondents (By Sri A V Ramakrishna, HCGP, for respondent No.1)This Criminal Petition is filed under Section 482" Code. of .g Criminal Procedure, praying to quash the "proegeedinpgsr 1 WC I No.2l545/2008 on the file of CMM, Bangalore. . -r Misc. Crl. No.s69/2009 is filed under seem, 482ilo.fvthe Ciocie Criminal Procedure, praying to stay'v--.l4g(further 'proce_dings in C C No.2l5-45/2008 on the file ofC M M, Bangalore: " These cases coming on for_..}¥;dmiissiond.ay, the Court made the foilowingi * T' = The petitivoner/acicosed.VinuCi"C___l'«lo.21545/2006 on the file of Chief Metropolitan Magistrate' is before this Court under Section 482 of the Codejof Procedure praying for quashing the crirnina'l-proceedings for theiioffences under Sections 335, 509, 326 and . S06 ofme' ~i§fe15'ai.:cpde. 2. LeiarnedVCou3nse1 for the petitioner submits that the ingredients «--ofi..1S~e.ction 326"ofi'il P C is not made out and apart from that there are «dajifis deiay in filing the complaint. ft is further submitted that now '_ stage for framin s. Cri.P No.5"/'2/20(}9 & Misc.Cri.569/2009 3. The petitioner has got all the statutory remedy to address arguments for discharge, if there is no prima facie case, beforegt-hie.._triaI Court. I see no good ground to entertain the Petition. 4. In the result, the Petition failsjiianciilii '' dismissed. survive and it is accordingly rejected. it .3 Consequently, stay petition not

Author: Dr.K.Bhakthavatsala

Mrs Sunita Kumari vs State Of Karnataka on 19 March, 2009

Karnataka High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.29166 of 2010 SHRI KISHUN CHAUHAN Versus STATE OF BIHAR ----------- Shageer ( Dinesh Kumar Singh, J.) 02. 10.08.2010 Petitioner is apprehending his arrest in a case registered under Sections 341, 323, 147, 148, 504 of the I.P.C. and Section 3(1)(x) of the S.C. & S.T.(Prevention of Atrocities) Act. It is alleged against all the F.I.R. named accused persons that they abused the informant by calling his cast name and assaulted with fist and slaps. It is submitted by learned counsel for the petitioner that due to earlier enmity the petitioner has been roped in the present case. Moreover with the similar allegation other accused person has been granted bail by the learned Sessions Judge. Considering the aforesaid facts, let the petitioner namely Shri Kishun Chauhan, in the event of his arrest or surrender before the Court below within a period of 12 weeks from today, be released on anticipatory bail on furnishing bail bond of Rs. 10,000/(ten thousand) with two sureties of the like amount each to the satisfaction of Chief Judicial Magistrate, Siwan in connection with Hajipur Harijan P.S. Case No. 99 of 2010.

Shri Kishun Chauhan vs State Of Bihar on 10 August, 2010

Patna High Court - Orders

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(Crl.).No. 320 of 2008(S) 1. KHADEEJA.K, W/O.MOHAMMAD ALI, ... Petitioner Vs 1. THE DISTRICT COLLECTOR AND DISTRICT ... Respondent 2. THE ADDITIONAL CHIEF SECRETARY, 3. THE SUPERINTENDENT, CENTRAL PRISON, 4. STATE OF KERALA, REPRESENTED BY THE For Petitioner :SRI.SUNNY MATHEW For Respondent :GOVERNMENT PLEADER The Hon'ble MR. Justice KURIAN JOSEPH The Hon'ble MR. Justice K.T.SANKARAN Dated :28/10/2008 O R D E R KURIAN JOSEPH & K.T. SANKARAN, JJ. -------------------------------------------- W.P.(Crl)No. 320 OF 2008 -------------------------------------------- Dated this the 28th day of October, 2008. J U D G M E N T Kurian Joseph, J. This writ petition is filed praying for releasing Sri.Shani who has been detained under Section 10(4) of the Kerala Anti Social Activities (Prevention) Act, 2007. In view of the intervening developments whereby the detenue has been released by the Government, nothing survives in this writ petition. It is accordingly dismissed. KURIAN JOSEPH JUDGE K.T. SANKARAN JUDGE smp  KURIAN JOSEPH & K.T. SANKARAN, JJ. W.P.(Crl)No. 320 OF 2008 J U D G M E N T 28.10.2008 

Khadeeja.K vs The District Collector And ... on 28 October, 2008

Kerala High Court

JUDGMENT A.R. Lakshmanan, J. 1. The plaintiff above-named filed a memo under section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred to as "the Act"), to stay the proceedings in C. S. No. 439 of 1992, on the ground that no suit for recovery of money or enforcement of any security against the industrial company or of any guarantee in respect of any loan or advance granted to the industrial company shall lie or be proceeded with further except with the consent of the Board for Industrial and Financial Reconstruction (hereinafter referred to as"the Board"). In view of the said amendment to the Act by Amendment Act 12 of 1994, the company suit cannot be proceeded with inasmuch as there is a counter - claim seeking recovery of the money against the plaintiff. The plaintiff, therefore, prayed that since the plaintiff is a sick industrial undertaking and due to the amended provisions of section 22 of the Act, the suit cannot be proceeded with as the provisions are mandatory. 2. The first defendant filed C. P. No. 69 of 1991 in this court on July 25, 1991, for winding up of the plaintiff on the ground that it had failed and neglected to pay the sum of Rs. 49,62,101 with interest. Pending disposal of the main company petition, the first defendant filed Company Application No. 1028 of 1991 to direct the plaintiff to deposit a sum of Rs. 57,39,464 in this court or to direct the plaintiff to furnish a bank guarantee for the said sum or in the alternative to appoint the official liquidator as provisional liquidator to take charge of the assets and affairs and be in charge of the plaintiff-company pending disposal of the main company petition. 3. Company Application No. 2266 of 1991 was filed by the plaintiff to revoke the order of admission in C. P. No. 69 of 1991, dated August 2, 1991, and direct the same to be dismissed with costs. By judgment dated January 7, 1992, I dismissed Company Application No. 2266 of 1991, and directed the plaintiff to a furnish bank guarantee for a sum of Rs. 30 lakhs within a month of the said order and posted the company petition for hearing on April 9, 1992. 4. The plaintiff filed O. S. No. 480 of 1991 on the file of the First Additional Sub-Court, Trichy, against the defendants herein for a decree in favour of the plaintiff for a total claim of Rs. 53,40,408.77 together with subsequent interest at the rate of 18.5 per cent. per annum from the date of plaint till realisation and for costs. The said suit was filed on June 26, 1991. Subsequently, by consent of both parties, the same was withdrawn from the Sub-Court, Trichy, to the file of this court to be tried along with C. P. No. 69 of 1991. The same was renumbered as C. S. No. 439 of 1992 and was called along with C. P. No. 69 of 1991. 5. The first defendant claimed a sum of Rs. 86,10,605 from the plaintiff in the form of an additional written statement and by way of counterclaim, together with interest at 25 per cent. per annum from March 25, 1994, till realisation. It was filed on October 9, 1993, in the above suit and the same was taken on file on March 11, 1994. It is pertinent at this stage to notice that the amended Act came into force from February 1, 1994. 6. The examination of the plaintiff's witnesses commenced in August, 1993, continued thereafter from time to time and concluded on January 20, 1995. Thereafter, the examination of DW-1 was commenced and his examination-in-chief was concluded on February 10, 1995. The plaintiff took time for cross-examination of the said witness. While so, a memo under section 22 of the Act for stay of all further proceedings was filed on April 21, 1995. The above fact would clearly establish that notwithstanding the counter-claim, the plaintiff had participated in the proceedings and decided to proceed with the suit. 7. An objection was filed to the memo by the defendants through their learned counsel, Mr. C. Harikrishnan. According to him, the defendants came to know that the plaintiff had made a reference to the Board constituted under the Act. The first defendant wrote a letter on October 24, 1994, to the Board expressing its desire to participate in the proceedings. A reminder letter was sent to the Board on February 11, 1995, and a petition under regulation 20(6) of the Board for Industrial and Financial Reconstruction Regulations, 1987, was sent to the Board on May 15, 1995. It is also to be noticed that the company proceedings commenced even as early as 1991 and the suit immediately thereafter and as on date, there was no prohibition from any court to try the suit and grant a decree. 8. Mr. C. Harikrishnan also contended that the Act was amended by the Sick Industrial Companies (Special Provisions) Amendment Ac, 1993, and the same had received the assent of the President of India on February 1, 1994. By the Amendment Act, section 22 of the Act was amended and the following words "no suit for the recovery of money or for the enforcement of any security against the industrial company or of any guarantee in respect of any loans or advance granted to the industrial company shall lie or be proceeded with further, except with the consent of the Board or, as the case may be, the appellate authority" were inserted. Therefore, it is submitted that the above-amended provision does not apply to the present situation in which the present proceedings are pending in this court. Further, it is submitted that the suit was not filed by any third party against an alleged sick industrial company but one filed by the sick industrial company itself. Therefore, there is no total prohibition on this court to try a suit, the only requirement is that the suit can be proceeded with the approval of the Board. There is no reasonable nexus between the object of the Act and the prohibition to file or proceeding with any suit and on this ground also the provision relating to the stay of the suit is liable to be struck down. There cannot be any blanket provision to prevent a suit pending in this court being proceeded further. 9. At the time of hearing Mr. T. K. Seshadri said that in view of the amendment to section 22 of the Act, on the round that the plaintiff-company was declared to be a sick industry on October 5, 1994, and that as per the amended section no suit for recovery of money against an industrial company will lie or be proceeded further with except with the consent of the Board, the company suit cannot be proceeded with. Further, the proceedings under the Act are pending before the Board. It was further submitted that though the above suit was filed by the plaintiff, still the suit has to be stayed in view of the counter-claim made by the first defendant. Elaborating the matter further, Mr. T. K. Seshadri relied on the provisions of Order VIII, rules 6 of the Civil Procedure Code, 1908, and argued that when a counter-claim is made, the court shall deal with the same as a counter-suit and deliver a common judgment both in the claim of the plaintiff as well on the counter-claim. He also cited the corresponding provision in the Original Side Rules, viz., Order V. rule 7. He also referred to section 446 of the Companies Act, 1956, as an analogy. He also invited my attention to show that the proceedings are pending before the Board. 10. Countering the above submissions, Mr. C. Harikrishnan, appearing for the defendants, contended that the bar under the amended section applies only to suits against the sick company and in this case, since the suit was filed by the sick company itself, the plaintiff cannot seek to stay the suit at this stage on the ground of pendency of the counterclaim. In answering the contention of Mr. T. K. Seshadri, Mr. C. Harikrishnan contended that under Order VIII, rule 6(c) of the Civil Procedure Code, 1908, an option is given to the plaintiff to exclude dealing by the court with the counter-claim on the ground that the same should be done only by an independent suit. But the plaintiff did not exercise its option but wanted the suit and the counter-claim to be dealt with together. The counter-claim is a part of the suit. To show the conduct of the plaintiff, Mr. C. Harikrishnan wanted me to take note of the several events that took place in the present proceedings. 11. According to Mr. C. Harikrishnan, the suit was originally filed on July 23, 1991, in the Sub-Court, Trichy, and in the said suit, the plaintiff had given credit to a sum of Rs. 45,12,420, admittedly due to the first defendant, and claimed only the balance. The first defendant had filed C. P. No. 69 of 1991 in this court on July 25, 1991, for winding up of the plaintiff-company on the ground that it had failed and neglected to pay the sum of Rs. 49,62,101 with interest. Thereupon, by consent of parties, the suit pending in the Sub-Court, Trichy, was withdrawn to be heard along with C. P. No. 69 of 1991. The transferred C. S. No. 439 of 1992 was all along called along with C. P. No. 69 of 1991. The first defendant on October 9, 1993, made a counter-claim for Rs. 86,10,605 in the suit filed by the plaintiff and the same was taken on file on March 11, 1994. As already seen, both the parties have examined their witnesses and the matter was adjourned for the plaintiff to cross-examine the defence witness. The above facts narrated would clearly establish that notwithstanding the counter-claim, the plaintiff decided to proceed with the suit. 12. As rightly contended by Mr. C. Harikrishnan, there is no total prohibition on the court to try any suit nor does every kind of suit come within the purview of section 22 of the Act. Explaining the matter further, he drew my attention to sections 16 to 18 of the Act and contended that the words found in section 22 of the Act relating to the bar on suits can apply only to certain situations mentioned in the said section itself. Section 15 of the Act makes it obligatory for an industrial company to report its sickness to the Board on the happening of certain events. Under section 16 of the Act, after receipt of the report as aforesaid, the Board has to pass an order declaring the sickness or otherwise. Under section 17(1) of the Act, the Board should order an enquiry after being satisfied that the company is sick to find out whether the company itself could make its net worth positive within a reasonable time. If the company agrees to make its net worth positive as per section 17(1) of the Act, then the Board could pass an order under section 17(2) directing the company itself to make its net worth positive. Only if the company expresses its inability to make its net worth positive, then an order under section 17(3) of the Act will be passed appointing an operating agency to prepare a scheme. Thereafter, under section 18 of the Act, the scheme is taken up for consideration by the Board and sanctioned with or without modification of the scheme formulated by the operating agency. 13. According to Mr. C. Harikrishnan, so far as the plaintiff is concerned, the enquiry under section 16 of the Act is over and on the available material, it is not clear whether any scheme under preparation under section 17(3) of the Act. On the material furnished, the Board has not decided whether to apply a scheme under section 17(3) of the Act of whether or whether to act under section 17(2) of the Act. If the matter does not fall within the ambit of section 17(3) of the Act, there is no application of section 22 of the Act. I see much force in the above legal contention of Mr. C. Harikrishnan. 14. The further contention of Mr. C. Harikrishnan is that there can be an interval between section 16 and section 17(3) of the Act and that this will be relevant for considering the bar now recently introduced by the amendment. It is for this court to consider that even assuming that there is a bar under section 22 of the Act to proceed further with the suit, the said bar cannot be applied to pending proceedings. As pointed out by learned counsel for the defendants, the amendment having come into force on February 1, 1994, cannot be applied retrospectively to a suit filed on July 23, 1991. It is well settled that if an amendment is on a procedural aspect, the presumption is that the amendment has a retrospective effect, but if it is a matter relating to a substantive right, it will have only prospective effect unless the Amending Act makes it very clear without ambiguity that the amended provisions apply retrospectively. The filing of a suit and proceeding with the same are substantive rights. In support of his submissions Mr. C. Harikrishnan cited two decisions reported in Y. Arul Nadar v. Authorised Officer, [FB]; Katikara Chintamani Dora v. Guatreddi Annamanaidu, . 15. In Y. Arul Nadar v. Authorised Officer, , a Full Bench of this court has observed as follows (headnote) : "The general rule is, when an amendment is introduced in the statute governing the case already pending, the rights and obligations of parties should be decided only according to the law, which existed when the action was begun, unless a clear contrary intention is evident in the Amending Act. There could not be imputation of retrospective operation to an Amending Act and that could be done only by the Amending Act either expressly or necessary implication. In the instant case the Amending Act has indicated that the amendments introduce shall have only prospective operation and pending proceedings should continue as if the Amending Act had not been passed." 16. In the decision reported in Katikara Chintamani Dora v. Guatreddi Annamanaidu, , the Supreme Court has observed as follows (at page 1079) : "It is well-settled that ordinarily, when the substantive law is altered during the pendency of an action, rights of the parties are decided according to law, as it existed when the action was begun unless the new statute shows a clear intention to vary such rights. A plain reading of the impugned Act would show that there was nothing of this kind which expressly or by necessary intendment affects pending actions. There is no non-obstante clause in these Amending Acts 17 and 18 of 1957 with reference to pending or closed civil actions. These amending Acts were published in the Government Gazette of December 23, 1957, and will, therefore, be deemed to have come into force from that date only. They could, therefore, be construed as having prospective operation only. In the Amending Act 20 of 1960, also no back date for its commencement has been mentioned. It will, therefore, be deemed to have commenced on June 23, 1960, which is the date on which it was published in the Government Gazette." 17. In view of the abovesaid legal position, I am of the view that there cannot be any stay of the suit as there is no retrospective effect for the amendment. 18. In a recent judgment in Sharad R. Khanna v. Karimjee Ltd. [1995] 84 Comp Cas 611, a Bench of the Bombay High Court consisting of Sujata Manohar C.J., as she then was, and Dr. B. P. Saraf J., held that the amendment to section 22 of the Act would only be prospective. That was a case of a decree obtained against the appellant before the Bombay High Court in his capacity as a guarantor for certain debts incurred by a company remaining unsatisfied. The judgment-creditor served an insolvency notice on the appellant. The appellant took out a notice of motion against the insolvency notice. But, a learned single judge held against him. On appeal, contending that since in respect of the company, for whose debts he was guarantor, proceedings under section 25 of the Act were pending, section 22 of the Act protected the appellant from insolvency proceedings. The Bench held as follows (at page 614) : "It is next submitted that section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985, has been amended by the Amending Act of 1993, as a result of which certain protection is given to a guarantor. In the present case, the decree against the appellant is in his capacity as a guarantor of certain debts incurred by a company which is at present before the Board for Industrial and Financial Reconstruction. The application of the company has been rejected by the Board but an appeal under section 25 is still pending. Under the amended section 22, inter alia, no suit for the enforcement of any guarantee in respect of any loans or advance granted to the industrial company 'shall lie or be proceeded with further' except with the consent of the Board or, as the case may be, the appellate authority. This amendment came into effect from February 1, 1994. The question is whether the issuance of an insolvency notice and its service can be considered as the original suit for the enforcement of guarantee being further proceeded with. It is difficult to consider the issuance of an insolvency notice as proceeding further with the original suit. It is an independent proceeding with its own consequences although it may be considered as a mode of equitable execution. In any case this amendment came into force only with effect from February 1, 1994. It cannot affect retrospectively an insolvency notice issued and served long prior to the coming into effect of the Amending Act. The Amending Act is prospective and will apply to all the suits filed or proceeded with after the amendment came into effect. Section 22, therefore, as amended, cannot affect the order in the present case which is in a notice of motion to set aside the insolvency notice. This point was also not urged before the learned single judge. However, since it is a point of law, we have allowed the appellant to urge it." 19. Though Mr. T. K. Seshadri contended that there is no quarrel about the legal proposition relating to operation of the amended provision prospectively or retrospectively, the words "shall not be proceeded with further" make it clear that the amended provision would apply to pending proceedings also. I am unable to countenance the said contention. 20. In the decision in Shree Vallabh Glass Works Ltd. v. State of Maharashtra , a Division Bench has held as follows (headnote of AIR 1990) : "It is not disputed, and indeed it cannot be disputed, that the Sick Industrial Companies (Special Provisions) Act, 1985, has been passed by Parliament in exercise of its legislative power contained in List I of the Seventh Schedule of the Constitution. If this is so, naturally the provisions in the Act cannot be controlled by the Bombay Village Panchayats Act, 1958, which has been passed by the State Legislature in exercise of its legislative power under List II of the Seventh Schedule of the Constitution. The Act does not touch upon the powers of the Gram Panchayat to levy property tax. It only puts a restriction on the recovery proceedings that may be adopted for recovering the taxes which the Gram Panchayat may legally levy. Such a provision must be regarded as incidental to the main provision contained in the Act, namely, the provision to nurse and bring back to health the sick industrial units. Even if it is held that such a provision interferes to some extent with the power of the Gram Panchayat as conferred by a valid piece of legislation enacted by the State, it must override the provisions of the State Act. and , relied on. What is mentioned in sub-section (3) of section 22 or even its broad language does not control the provisions contained in sub-section (1) of section 22. Properly analysed, the provisions of section 22 show that in sub-section (1) recovery of claims which have become crystallised as due is arrested, while under sub-section (3), crystallisation of claims under instruments or transactions referred to therein is stopped. Even when there are settlements or awards, the Board has been given power to suspend the same, so that amounts payable under them do not become due. The contexts of the provisions in the two sub-sections are different; the stages at which they come into operation are also different. The contention that the language of sub-section (3) of section 22 must be referred to in order to understand the nature of the recovery proceedings that are stopped or arrested under sub-section (1) cannot be accepted." 21. As pointed out by the Division Bench, what is arrested under section 22 of the Act is the recovery by coercive procedure of any amount due by the company and that the properties of the company shall not be proceeded against for satisfaction of any claim against the company. It is, therefore, clear that the power of the Gram Panchayat to impose tax remains totally unimpaired. It is only prohibited by section 22(1) of the Act from proceeding against the properties of the company while recovering the amounts due by way of property tax. 22. The above judgment of the Bombay High Court was affirmed by the Supreme Court in Gram Panchayat v. Shree Vallabh Glass Works Ltd. . The Supreme Court has held as follows (at page 173 of Comp Cas) : "In the light of the steps taken by the Board under section 16 and 17 of the Act, no proceedings for execution, distress or the like proceedings against any of the properties of the company shall lie or be proceeded with further except with the consent of the Board. Indeed, there would be automatic suspension of such proceedings against the company's properties. As soon as the inquiry under section 16 is ordered by the Board, the various proceedings set out under sub-section (1) of section 22 would be deemed to have been suspended. It may be against the principles of equity if the creditors are not allowed to recover their dues from the company, but such creditors may approach the Board for permission to proceed against the company for the recovery of their dues/outstandings/overdues or arrears by whatever name they are called. The Board, at its discretion, may accord its approval for proceeding against the company. If the approval is not granted, the remedy is not extinguished. It is only postponed. Sub-section (5) of section 22 provides for exclusion of the period during which the remedy is suspended while computing the period of limitation for recovering the dues." 23. In the decision in Testeels Ltd. v. Radhaben Ranchhodlal Charitable Trust , P. R. Gokulakrishnan C.J., speaking for the Bench, observed as follows (headnote of AIR) : "Under section 22 the winding up proceedings already started against an industrial company can be dismissed. The words 'be proceeded with further' in section 22 cannot be interpreted to mean that the winding up proceedings already started should be kept in abeyance without further proceeding in the matter. The various provisions of the Sick Industrial Companies (Special Provisions) Act, 1985, which have been enacted to safeguard the economy of the nation and to protect the viable sick companies, definitely puts an end both to the contemplated winding up proceedings and the pending winding up proceedings. It is too much to say that the proceedings already instituted can only be stayed, but cannot be dismissed. The words 'or be proceeded with' occurring in section 22, cannot, in any way, restrict the meaning that has to be given to the words 'no proceedings shall lie'. The legislation in order to revive and rehabilitate the sick industry has come forward with specific provisions. The financial assistance envisaged under section 19 cannot be forthcoming if the winding up proceeding is not dismissed. Various other schemes envisaged under section 18 cannot be effectively administered by having the winding up proceedings alive without the same being dismissed. The continuance of a pending proceeding for winding up, if allowed by the court in exercise of is discretion, would clearly conflict with the paramount object for which section 16(4) of the Act is enacted." 24. According to P. R. Gokulakrishnan C.J., on a reading of the provisions of sections 16, 17, 19 and 20 of the Act in the background of the Statement of Objects and Reasons for enacting the said law, it is clear that the legislation in order to revive and rehabilitate the sick industry has come forward with specific provision and that the financial assistance envisaged under section 19 of the Act, as contended by the counsel appearing for the appellant therein, cannot be forthcoming if the winding up proceeding is not dismissed, and that various other schemes envisaged under section 18 of the Act cannot be effectively administered by having the winding up proceedings alive without the same being dismissed. 25. A contrary view was taken by a learned single judge of the Bombay High Court in Ramniklal and Co. v. Wallace Flour Mills Co. Ltd. [1993] 78 Comp Cas 546; [1992] 3 CLJ 258. The learned judge has held as follows (at page 554 of Comp Cas) : "The operative part of section 22(1) of the Act provides that the winding up proceedings may continue with the consent of the Board or the consent of the appellate authority. If the proceedings can continue with the consent of the Board or consent of the appellate authority or in the event of the conditions precedent prescribed under section 22(1) of the Act ceasing to exist, there is no reason as to why the pending winding up petitions must necessarily abate or must necessarily be dismissed. Section 31 of the Act provide that certain pending proceedings shall not abate where the receiver or the official liquidator was already appointed before the commencement of the Act. This section cannot be reasonably pressed into service for the purpose of making a submission to the effect that in all other cases the proceedings abate when the operative part of section 22 of the Act can be reasonably interpreted to mean that the winding up proceedings are merely required to be suspended and kept in abeyance and are not required to be dismissed and they do not abate." 26. With great respect, I disagree with the view taken by a Division Bench of the Gujarat High court in Testeels Ltd. v. Radhaben Ranchhodlal Charitable Trust . In my opinion, section 22(1) of the Act can be reasonably interpreted to mean that the winding up proceedings are merely required to be suspended and kept in abeyance and are not required to be dismissed as suggested by the Gujarat High Court. 27. In the decision in Sponge Iron India Ltd. v. Neelima Steels Ltd. [1990] 68 Comp Cas 201 (AP); [1992] 3 CLJ 266, a learned single judge of the Andhra Pradesh High Court held as follows (page 207 of Comp Cas) : "The next point for consideration is the effect of section 22 on these company petitions for winding up. It was contended by several counsel for the petitioners that the matters should be adjourned from time to time awaiting the further progress before the Board for Industrial and Financial Reconstruction. It is contended that this is necessary as the petitioners were not parties before the Board for Industrial and Financial Reconstruction and are not in a position to know the developments, and they do not like to lose the advantage of taking benefits of the extension of the period of limitation for enforcement of some of their rights in view of sections 441 to 458A of the Companies Act, etc. Section 22(1) affects only a limited class of actions like winding up petitions. After it is determined that section 3(o) applied to a company, broadly, three alternatives are possible under sections 17 to 20, viz., (a) measures to revive a company where its net worth can be increased; (b) framing a scheme; and (c) taking steps for winding up. The Board is given wide powers and the petitioners can certainly approach the Board for relief during this stage. At the same time, the hardship caused to the petitioners when the companies have become sick is apparent. Till the Board passes an order under section 22(3), there is no restraint against the companies in alienating their properties and, probably, the petitioners may be able to move the Board, if considered necessary. The language of section 22(1) and that of section 31 indicates that such winding up proceedings shall not be proceeded with further. The question whether they stand abated or not was not canvassed and I do not consider it appropriate to go into it at this stage in view of the order which I propose to pass. Apart from the difference in language of section 22(1) and section 31, it is also open to the petitioners to seek and get consent of the Board to continue any winding up petitions." 28. In K. SP. V. Shunmugam v. Maharashtra State Co-operative Cotton Growers" Marketing Federation Ltd. [1990] 70 Comp Cas 440 (Kar); [1992] 3 Comp LJ 271, a learned judge of the Karnataka High Court held as follows (at page 443 of Comp Cas) : "From the definitions of the two expressions, it is clear that one has to bear in mind the distinction between an 'industrial company' and an 'industrial undertaking' for purpose of the Act. The manner in which an industrial company has been defined clearly makes the legislative intent unambiguous in that after the coming into force of the Act, industrial undertakings must be carrying on an activity of manufacturing specified in the Schedule and if, for any reason, it has ceased to manufacture or is not carrying on the scheduled industry, then it cannot be held to be an industrial undertaking. Further, what is clear from the language employed in section 22(1) of the Act, is its reference only to an inquiry under section 16 pending or any scheme referred to under section 17 of the Act which scheme is either under preparation or under consideration or is sanctioned and as such is under implementation or where there is an appeal against any of the findings recorded by the Board under section 25 of the Act is pending, then only the provisions of sub-section (1) of section 22 are attracted and not otherwise. There are numerous special conditions prescribed in section 15 of the Act before which the board of directors of a company may move the Board under the Act to institute an inquiry into the causes of sickness and make appropriate recommendations for its rehabilitation. In other words, for a reference to be made to the Board, the pre-requisite is the existence of a board of directors of the industrial company which is sick. If that board does not exist in the eye of law on any given date, then the competence to make a reference itself disappears. As I have noticed earlier, Vishnu Textiles Ltd. came to be wound up on June 3, 1988, by an order of this court. From the date of communication of that order, the board of directors ceased to hold office and they are directors only for purposes of filing the statement of affairs in aid of the winding up proceedings and they do not exist for any other purpose. Therefore, if a reference is made by any body of persons claiming to be the board of directors after the winding up order was made, then that reference itself appears to be wholly incompetent and the provisions of sections 16, 17 and 22(1) will not be attracted.' 29. In Industrial Finance Corporation of India v. Maharashtra Steels Ltd. [1990] 67 Comp Cas 412 (All); [1992] 3 Comp LJ 274, a learned single judge of the Allahabad High Court held that where a reference is registered under the Act and an enquiry is pending before the Board, it is open to the petitioners seeking appointment of a receiver, say, over the mortgaged properties of a body corporate, to obtain the consent of the Board for such appointment. 30. The Supreme Court has very succinctly analysed the provisions of sub-section (1) of section 22 of the Act in Gram Panchayat v. Shree Vallabh Glass Works Ltd. [1991] 71 Comp Cas 169 and held that only the following proceedings were automatically suspended, viz., (i) Winding up of a sick industrial company; (ii) Proceedings for execution, distress or the like against the properties of a sick industrial company; and (iii) Proceedings for the appointment of a receiver thereof. However, the amendments made by the Sick Industrial Companies (Special Provisions) Amendment Act, 1993, have also brought the following proceedings against the sick industrial company within the frame work of section 22(1) : (i) Suit for recovery of money; (ii) Suit for enforcement of any security or any guarantee in respect of any loans or advances granted to the company. 31. This section gives a clear mandate and prohibits the continuance of any proceedings for winding up, execution, distress or the like against any of the properties of a company which has been declared a sick unit under the Act. 32. As already seen, the Gujarat High Court in Testeels Ltd. v. Radhaben Ranchhodlal Charitable Trust , has held that the words "no proceedings shall lie" will not denote that the winding up proceedings already started shall lie in abeyance. Once the company come within the purview of the Act, winding up proceedings pending against the company would stand dismissed for the object of the Act is to protect viable sick units and if winding up proceedings lie in abeyance the financial institutions would feel shy in coming forward to advance any amount to such a company. However, any creditor can have the proceedings continued with due consent of the Board or the appellate authority, as the case may be. 33. As already seen, a contrary view has been taken by the Bombay High Court in Ramniklal and Co. v. Wallace Flour Mills Co. Ltd. [1993] 78 Comp Cas 546. The said court held that the Act provides that all proceedings pending against the properties of a sick company would lie in abeyance pending the enquiry under section 16 or preparation of a scheme or pending the implementation of the same. The proceedings are just to be suspended. The operative part of section 22 provides that the winding up proceedings can be taken up with the consent of the Board or the appellate authority, as the case may be. If the same can be continued, with their consent or where the conditions prescribed in section 22(1) cease to exist, there is no reason why the pending winding up petitions must necessarily abate or must necessarily be dismissed. I am also of the same view. 34. However, the case on hand stands on a different footing. In this case, as already seen, the bar in the amended section applies only to the suit against a sick company. But, in the instant case, the suit was filed by the sick company itself. This apart, the plaintiff did not exercise its option but wanted the suit and the counter-claim to be dealt with together. In the circumstances, I am of the view, the plaintiff cannot at this stage, seek the stay of the suit on the ground of pendency of the counter-claim. As rightly contended by Mr. C. Harikrishnan, the amendment having come into force of February 1, 1994, cannot be applied retrospectively to a suit filed on July 23, 1991. His contention is also fortified by the judgment of the Division Bench of the Bombay High Court in Sharad R. Khanna v. Karimjee Ltd. [1995] 84 Comp Cas 611. 35. For all the reasons aforesaid, I am of the view that the memo filed by the plaintiff praying to stay the proceedings in C. S. No. 439 of 1992, under section 22 of the Act cannot be countenanced. Therefore, I reject the memo. Post the suit for trial on December 1, 1995.

Author: A Lakshmanan

Trichy Steel Rolling Mills Ltd. vs Arvind Steels (P) Ltd. And Another on 13 November, 1995

Madras High Court

IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:- 11.09.2006 Coram:- The Honble Mr. Justice P.SATHASIVAM And The Honble Mr. Justice S.MANIKUMAR Habeas Corpus Petition No.691 of 2006 Mrs.Dhanam  Petitioner Vs. 1. The Secretary to Government, Prohibition and Excise Department, Government of Tamil Nadu, Fort St. George, Chennai 600 009. 2. The Commissioner of Police, Greater Chennai, Egmore, Chennai 600 008.  Respondents Petition under Article 226 of the Constitution of India for the issuance of a writ of habeas corpus to call for the records relating to detention order No.533 of 2005, dated 30.11.2005, passed by the 2nd respondent, set aside the same, direct the respondent to produce the body of detenu Ravi @ Ravi Kumar, son of Babu, aged about 22 years, now confined in central Prison, Chennai, before court and set him at liberty. For Petitioner : Mr.R.Krishnasamy For Respondents : Mr.Babu Muthumeeran, Addl. Public Prosecutor. ORDER (Order of the Court was made by P.SATHASIVAM, J.) The petitioner herein challenges the order of detention, dated 30.11.2005, detaining her son by name Ravi @ Ravikumar as Goonda as contemplated under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982). 2. Heard learned counsel for the petitioner as well as learned Additional Public Prosecutor for the respondents. At the foremost, learned counsel appearing for the petitioner submitted that no family member was intimated regarding the passing of detention order against the detenu. Learned Additional Public Prosecutor, by placing the records, submitted that the detention order was passed on 30.11.2005, and that, on 03.12.2005, the same was intimated to one Elumalai/paternal uncle of the detenu. Accordingly, we reject the first contention. 3. Learned counsel for the petitioner, by drawing our attention to the remand order passed by the Judicial Magistrate, Tambaram, dated 14.11.2005, submitted that the detenu was singled out and detained as Goonda, however, other co-accused were not proceeded against under the Tamil Nadu Act 14 of 1982. 4. Merely because no action was taken under Act 14 of 1982 in respect of the co-accused, the impugned order of detention cannot be faulted with. Further, in the absence of involvement or other acts in respect of those accused, this Court cannot go into the said aspect. A perusal of the grounds of detention amply shows that the Detaining Authority, after taking note of 8 adverse cases to the credit of the detenu from April, 2001 to November, 2005; his involvement in the ground case; and on going through all other details; clamped the detention order in order to maintain public peace and public order in the area in question. In such circumstances, we are unable to accept the said contention. 5. Finally, learned counsel for the petitioner submitted that adverse case Nos.4 to 8 are all foisted by the police and this aspect was not duly considered by the Detaining Authority. 6. With regard to the said contention, learned Additional Public Prosecutor, after taking us through the relevant details relating to adverse case Nos.4 to 8 submitted that in all those cases, properties, viz., gold chains, bangles, Nokia cellphone etc. were recovered and mahazars prepared are available at page Nos.33,37, 44, 51 & 68 of the Paper book supplied to the detenu. It is also brought to our notice that, in the confessional statement of the detenu, which is available at page Nos.77 and 78 of the Paper Book, wherein, the detenu himself admitted the guilt. On going through those details, which are available in the Paper Book, we are of the view that it cannot be claimed that all those adverse cases, particularly 4 to 8, were foisted without any basis/material. Accordingly, we reject the said contention also. 7. No other contention has been raised, HCP fails and the same is dismissed. JI. To 1. Secretary to Government, Prohibition and Excise Department, Fort St. George, Chennai 600 009. 2. Commissioner of Police, Chennai. 3. The Superintendent, Central Prison, Chennai. (In duplicate for communication to detenu) 4. The Joint Secretary to Government, Public (Law and Order) Fort St. George, Chennai-9. 5. The Public Prosecutor, High Court, Madras. [PRV/7982]

Mrs.Dhanam vs The Secretary To Government on 11 September, 2006

Madras High Court

Court No. - 7 Case :- WRIT - A No. - 11806 of 2007 Petitioner :- Smt. Sumitra Jain & Others Respondent :- Sri Raj nish Kumar & Others Petitioner Counsel :- Ajay Kumar Singh,Ashish Kumar Singh Respondent Counsel :- K.L.GroVer,Ramesh Singh Hon'ble Ran Vi°ai Singh,J. As prayed, list this case after two weeks. Order Date :- 25.1.2010 Pratima

Smt. Sumitra Jain & Others vs Sri Rajnish Kumar & Others on 25 January, 2010

Allahabad High Court

CENTRAL INFORMATION COMMISSION Club Building (Near Post Office) Old JNU Campus, New Delhi - 110067 Tel: +91-11-26161796 Decision No. CIC/SG/A/2010/003641/11342 Appeal No. CIC/SG/A/2010/003641 Relevant FactsRTI application filed on : 15/10/2010 PIO 1replied : 10/11/2010 PIO 2replied : 24/11/2010 First appeal filed on : 15/11/2010 First Appellate Authority order : Not mentioned. Second Appeal received on : 20/12/2010 Notice of Hearing sent on : 30/11/2010 Hearing held on : 07/02/2011 Information Sought: emerging from the Appeal Appellant : Mr.Chirag Saini, 4447 Aryapura, Sabzi Mandi,Ghanta Ghar, Delhi 110007. Respondents : Mr. S. P. Sharma Public Information Officer & Asst Director of Vigilance, Municipal Corporation of Delhi, Vigilance Department, 26th Floor, Civic Center, Minto Road, New Delhi Mr. R. Prasad PIO & SE Municipal Corporation Of Delhi, Building Department, 16,Rajpur Road, Civil Lines, Delhi 110054. 1.Copy of the documents received in the Vigilance Department as complaint against the illegal construction in wards under the JE Bhupendra Meena Building Department Civil lines zone 2- Details and copy of the charge sheet or notice against JE Bhupendra Meena by the Vigilance Department 3-.Details of the no of times JE Bhupendra Meena has been called for the complaints and the written warnings given to him by the Vigilance Department. 4- Detailed account of the no of times JE Bhupendra Meena has been called in the CIC office the context and the decision taken against him. 5-Copy of the RTI applications received against JE Bhupendra Meena till date. 6-Details of the officers and the office which they hold who took actions against JE Bhupendra Meena on the complaints against him along with the no of times such actions taken. 7-Details of whether the faults are willingly performed by JE Bhupendra Meena even after the warnings given to him by the Vigilance Department. 8-Reasons for the actions not taken against lapses on part of the JE Bhupendra Meena. Reply of PIO 1: 1&7 as per the reports received against different departments no complaints against JE Bhupendra Meena has been filed. 2,3 &6 from 1-01-2004 till date ie 25-10-10 2RDAs no 1/131/09 and 1/29/10 were allotted aginst JE Bhupendra Meena. Detail of RDA no 1/131/09 is attached and 1/29/10 RDA charge sheet has been issued till date. 4&5 RTI application has been forwarded toPIO/CL Zone vide letter dated 20-10-10 to furnish the requisite information 8 2 RDAs has been allotted against JE Bhupendra Meena wef 1-01-2004 to 25-10-10. Reply of PIO2: The requisite information sought does not deal with the Building Department. First Appeal: PIO gave unsatisfactory and incomplete information inspite of the lapse of 30 days. Order of the FAAs Order: No order. Ground for the Second appeal: Through imposing heavy penalty on the PIO and the related officers provide with the complete information and documents demanded. Relevant Facts emerging during Hearing: The following were present: Appellant : Absent; Respondent: Mr. S. P. Sharma, Public Information Officer & Asst Director of Vigilance; Mr. A. K. Mittal, AE on behalf of Mr. R. Prasad, PIO & SE; The Respondent states that all the information has been provided to the Appellant. The Appellant has telephonically informed the Commission that he is satisfied with the information. Decision: The Appeal is disposed. This decision is announced in open chamber. Notice of this decision be given free of cost to the parties. Any information in compliance with this Order will be provided free of cost as per Section 7(6) of RTI Act. Shailesh Gandhi Information Commissioner 07 February 2011 (In any correspondence on this decision, mention the complete decision number.) (ns)

Mr.Chirag Saini vs Mcd, Gnct Delhi on 7 February, 2011

Central Information Commission

Gujarat High Court Case Information System Print LPA/2674/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 2674 of 2010 In SPECIAL CIVIL APPLICATION No. 9474 of 2008 ========================================================= SHANTABEN WD/O RATILAL GANDAJI THAKOR - Appellant(s) Versus A K PATEL & 3 - Respondent(s) ========================================================= Appearance : MR JITENDRA M PATEL for Appellant(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5, 1.2.6, 1.2.7, 1.3.1, 1.3.2, 1.3.3,1.3.4 None for Respondent(s) : 1, 4, NOTICE SERVED BY DS for Respondent(s) : 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5,1.2.6 - 2. MR SATYAM Y CHHAYA for Respondent(s) : 2, GOVERNMENT PLEADER for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 26/04/2011 ORAL ORDER(Per : HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA) On the request of the learned counsel for the appellant, the matter is adjourned. Post the matter on 9th May 2011 on top of the list at 2-30 PM. No adjournment shall be granted on the next date. (S.J. MUKHOPADHAYA, CJ.) (J.B. PARDIWALA, J.) zgs/-

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

Shantaben vs A on 26 April, 2011

Gujarat High Court

PETITIONER: M/S. SCOOTERS INDIA LTD. Vs. RESPONDENT: M. MOHAMMAD YAQUB & ANR. DATE OF JUDGMENT: 21/11/2000 BENCH: S.N.Variava, S.R.Babu JUDGMENT: S. N. VARIAVA, J. L.....I.........T.......T.......T.......T.......T.......T..J This Appeal is against an Order dated 13th May, 1998 by which the writ petition filed by the Appellant has been dismissed. Briefly stated the facts are as follows: The 1st Respondent was appointed as unskilled workman w.e.f. 9th September, 1974 and was then promoted to the post of a semi-skilled worker w.e.f. 7th June, 1975. On 1st August, 1976 the Respondent's name was removed from the roll of the Company under Standing Order 9.3.12. The said Standing Order reads as follows : "9.3.12 Any workman who remains absent from duty without leave in excess of the period of leave originally sanctioned or subsequently extended for more than 10 consecutive days, he shall be deemed to have left the services of the Company of his own accord, without notice, thereby terminating his contract of service with the Company and his name will, accordingly, be struck off the rolls." The Respondent raised an industrial dispute, which was referred for adjudication to the Labour Court, Lucknow. By an Award dated 20th July, 1984, the Labour Court held that there was retrenchment. The Labour Court held that as the provisions of law, regarding retrenchment, had not been followed the termination was illegal. The Labour Court directed reinstatement with continuity of service and full back wages. The Appellant filed the Writ Petition challenging the Award. The Writ Petition came to be dismissed by the impugned order dated 13th May, 1998. Mr. Swarup submitted that there was no retrenchment. He submitted that the Respondent had been suspended from 28th June, 1976 to 7th July, 1976 and was to join duty after 7th July, 1976. He submitted that the Respondent did not join duty. He submitted that the Respondent was personally advised by the Chief Personnel Officer of the Company to join his duty on 23rd July, 1976, failing which his name would be removed from the roll. Mr. Swarup submitted that the Chief Personnel Officer of the Company wrote a letter dated 24th July, 1976, calling upon the Respondent to join duties latest by 30th July, 1976, failing which his name would be removed from the rolls of the company. He submitted that the Respondent still failed to join duty. He submitted that under these circumstances the Appellant is entitled to remove the name of the Respondent from the roll of the company under the above mentioned Standing Order. He submitted that such removal does not amount to retrenchment. He relied upon the judgment in the case of Scooters India and Ors. vs. Vijai E.V. Eldred reported in 1998 (6) S.C.C. 549, wherein in respect of Standing Order 9.3.12, it has been observed as follows : "It is also extraordinary for the High Court to have held clause 9.3.12 of the standing orders as invalid. Learned counsel for the respondent rightly made no attempt to support this part of the High Court's order." On the other hand Mr. Chinnasamy has relied upon the case of Uptron India Ltd. vs. Shammi Bhan and Anr. reported in 1998 (6) S.C.C. 538. In this case it was held that such a standing order conferred a discretion upon the management to terminate or not to terminate the services of an employee who overstays the leave. It was held that the discretion had to be based on an objective consideration of all circumstances and material which may be available on record. It was held that questions which would naturally arise are what circumstances compelled the employee to proceed on leave, why he overstayed leave, was there any just and reasonable cause for overstaying leave, whether he gave any further application for extension of leave; whether any medical certificate was sent if he had, in the meantime fallen ill. It was held that such questions could only be answered by the management provided it was inherent in the provision that the employee against whom action was proposed to be taken on the basis of such a provision was given an opportunity of hearing. It was held that principles of natural justice had to be read into such a clause and the principles of natural justice had to be complied with. It was held that the employee had to be informed of the grounds for which action was proposed to be taken against him for overstaying the leave. It was held that a Standing Order which provided for automatic termination of service of a permanent employee would be bad if it did not purport to provide an opportunity of hearing to the employee whose services are treated to have come to an end automatically. It must be mentioned that the authority in Scooters India's case (supra) was cited before this Court. In respect of that case it was held as follows : "22. Learned counsel for the petitioner has placed strong reliance upon a decision of this Court in Scooters India v. Vijay E.V. Eldred, 1996 (6) S.C.C. 549, in support of his contention that any stipulation for automatic termination of services made in the Standing Orders could not have been declared to be invalid. We have been referred to a stray sentence in that judgment, which is to the following effect : "It is also extraordinary for the High Court to have held clause 9.3.12 of the Standing Orders as invalid." This sentence in the judgment cannot be read in isolation and we must refer to the subsequent sentences which run as under : "Learned counsel for the respondent rightly made no attempt to support this part of the High Court's order. In view of the fact that we are setting aside the High Court's judgment, we need not deal with this aspect in detail." 23. In view of this observation, the question whether the stipulation for automatic termination of services for overstaying the leave would be legally bad or not, was not decided by this Court in the judgment relied upon by Mr. Manoj Swarup. In that judgment the grounds on which the interference was made were different. The judgment of the High Court was set aside on the ground that it could not decide the disputed question of fact in a writ petition and the matter should have been better left to be decided by the Industrial Tribunal. Further, the High Court was approached after more than six years of the date on which the cause of action had arisen without there being any cogent explanation for the delay. Mr. Manoj Swarup contended that it was conceded by the counsel appearing on behalf of the employee that the provision in the Standing Orders regarding automatic termination of services is not bad. This was endorsed by this Court by observing that : "Learned counsel for the respondent rightly made no attempt to support this part of the High Court's order." This again cannot be treated to be a finding that provision for automatic termination of services can be validly made in the Certified Standing Orders. Even otherwise, a wrong concession on a question of law, made by a counsel, is not binding on his client. Such concession cannot constitute a just ground for a binding precedent. The reliance placed by Mr. Manoj Swarup on this judgment, therefore, is wholly out of place." We are in complete agreement with the ratio laid down in this case as well as the observations made by this Court in respect of the stray observation in Scooters India's case (supra). Therefore, it is clear that there could not be any automatic termination of the Respondent on the basis of Standing Order 9.3.12. Principles of natural justice had to be complied with. The question which then arises is whether the principles of natural justice were followed in this case. As has been set out herein above Mr. Swarup had submitted that the workman had been given an opportunity to join the duty and that he did not join duty even though repeatedly called upon to do so. It is contended that principles of natural justice have been complied with in this case. However, the material on record indicates otherwise. The Labour Court in its Award sets out and accepts the Respondent's case that he had not been allowed to join duty. The Respondent has given evidence that even though he personally met Chief Personnel Officer he was still not allowed to enter the premises. The evidence is that in spite of slip Ext. W.2, he was prevented from joining duty when he attempted to join duty. The slip Ext. W.2 had been signed by the Security Inspector of the Appellant. This showed that the Respondent had reported for work. As against this evidence the Appellant has not led any evidence to show that the workman had not reported for duty. Even though the slip Ex. W.2 had been proved by the workman, the Security Inspector, one Mr. Shukla, was not examined by the Appellant. Further the evidence of the Senior Time Keeper of the Appellant established that the workman had worked for more than 240 days within a period of 12 calender months immediately preceding the date of termination of service. This was proved by a joint inspection report, which was marked as Ext. 45/A. It was on the basis of this material and this evidence that the Labour Court came to the conclusion that there was retrenchment without following the provisions of law. As the workman was not allowed to join duty, Standing Order 9.3.12 could not have been used for terminating his services. In this view of the matter, in our view, the decisions of the Labour Court as well as High Court are correct and require no interference. Accordingly, the Appeal stands dismissed. There will, however, be no order as to costs.

Author: S N Variava

M/S. Scooters India Ltd vs M. Mohammad Yaqub & Anr on 21 November, 2000

Supreme Court of India

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10385 of 2009 DR.MURARI LALL VERMA Versus THE STATE OF BIHAR & ORS with CWJC No.16979 of 2009 DR.AMOD NRAYAN SHARMA Versus THE STATE OF BIHAR & ORS with CWJC No.1656 of 2008 DR.RAMESH CHANDRA PRASAD Versus THE STATE OF BIHAR & ORS ----------- RPS (Ajay Kumar Tripathi,J.) 4 4.3.2011 There are three matters which are clubbed together because common question of law are required to be adjudicated. There is counter affidavit in the first case but in other two writ applications no counter affidavit has been filed in the last one year. The Court as a final indulgence to State to come out with its stand grants three weeks time to file counter affidavits as also serve copy thereof upon the respective counsel for the petitioners. Petitioners will have a weeks time to respond thereof, if it is required. It is made clear that if the affidavits are not filed by the State the Court will be free to impose a cost of Rs. 5000/- on the next date. All these three matters will come up in the same position on 1st April, 2011.

Dr.Murari Lall Verma vs The State Of Bihar &Amp; Ors on 4 March, 2011

Patna High Court - Orders

Gujarat High Court Case Information System Print SCR.A/2538/2011 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 2538 of 2011 ====================================== PRAJAPATI DINESHBHAI MULJIBHAI Versus STATE OF GUJARAT AND OTHERS ====================================== Appearance : MR.KIRIT R CHAUDHARI for Applicant. MR KARTIK PANDYA, APP for Respondent Nos.1,2,3. None for Respondent Nos.4-7. ====================================== CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 28/09/2011 ORAL ORDER(Per : HONOURABLE MR.JUSTICE D.H.WAGHELA) Rule returnable on 3rd October 2011. Learned APP waives service for respondent nos.1, 2 and 3. (D.H.Waghela, J.) (J.C.Upadhyaya, J.) *malek     Top

Author: D.H.Waghela, Honourable J.C.Upadhyaya,

State vs Mr Kartik Pandya on 28 September, 2011

Gujarat High Court

Court No. - 1 Case :- WRIT - A No. - 56373 of 2008 Petitioner :- Rekha Sharma Respondent :- State Of U.P. & Others Petitioner Counsel :- Narayan Singh Kushwaha Respondent Counsel :- C.S.C. Hon'ble Devendra Pratap Singh,J. Learned counsel for the petitioner prays for and is granted two weeks time to file rejoinder to the State's counter. List in the week commencing 30.8.2010 showing the name of Shri H.M. Srivastava and Shri Neeraj Srivastava as counsel for the respondent. Order Date :- 13.8.2010 AK

Rekha Sharma vs State Of U.P. & Others on 13 August, 2010

Allahabad High Court

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 11578 of 2007 DATE OF DECISION: February 24, 2009 John F Kennedy Public School and another ...Petitioners Versus Haryana Urban Development Authority and others ...Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE JORA SINGH Present: Mr. Aashish Chopra, Advocate, for the petitioners. Mr. Ajay Nara, Advocate, for the respondents. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. For orders see C.W.P. No. 11416 of 2007. (M.M. KUMAR) JUDGE (JORA SINGH) February 24, 2009 JUDGE Pkapoor

John F Kennedy Public School And ... vs Haryana Urban Development ... on 24 February, 2009

Punjab-Haryana High Court

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P.No.816 of 2017 --- Fulmati @ Fulmani Devi, W/o Sri Gobardhan Marandi, R/o Village Angulkata, P.O. and P.S. Nirsha, District Dhanbad (Jharkhand) ... ... Petitioner Versus The State of Jharkhand ... ... Opposite Party --- CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY --- For the Petitioner : Mr. Mahesh Tiwari, Advocate For the State : Ms. Vandana Bharti, A.P.P. --- 02/13.04.2017 Heard Mr. Mahesh Tiwari, learned counsel for the petitioner and Ms. Vandana Bharti, learned A.P.P. appearing on behalf of the State. In this application the petitioner has prayed for quashing of the order dated 19.01.2017 passed by the learned Judicial Magistrate, Ist Class, Dhanbad in connection with Nirsa P.S. Case No.213 of 2012, corresponding to G.R. Case No.3195 of 2012 whereby and whereunder proclamation under section 82 of the Cr.P.C. has been ordered to be issued. It appears from the impugned order dated 19.01.2017 that merely on the requisition of the Investigating Officer and without assigning any cogent reason, the said order has been passed. In absence of any cogent and justifiable reason, the impugned order dated 19.01.2017 passed by the learned Judicial Magistrate, Ist Class, Dhanbad in connection with Nirsa P.S. Case No.213 of 2012, corresponding to G.R. Case No.3195 of 2012 is hereby quashed and set aside. This application is allowed. However, learned Magistrate, Dhanbad is at liberty to proceed further in accordance with law. (Rongon Mukhopadhyay, J) Rohit/­

Fulmati Alias Fulmani Devi vs The State Of Jharkhand on 13 April, 2017

Jharkhand High Court

ORDER Harish Chander, Member (J) 1. Collector of Customs, Madras has filed an appeal being aggrieved from the order passed by the Collector of Customs (Appeals) Madras. Notice of hearing dated 9th August, 1990 was sent by registered AD Post to the party. 2. Shri M.K. Sohal, learned JDR has appeared on behalf of the appellant. No body has appeared on behalf of the respondent. Respondent has not filed any application for adjournment and has also not made any arrangement for the proper representation before the Bench. Accordingly, we proceed to decide the same on merits. 3. Shri M.K. Sohal, learned JDR appears on behalf of the appellant and pleads that the respondents had imported Film Lined Electrodes which were assessed to duty at 100% + 25% AD + CV 8% under Heading 85.03 CT/68 CET and respondent had claimed reassessment under Heading 85.18/27 CT/68 CET and the Asstt. Collector had rejected the claim of the appellants, and being not satisfied with the order passed by the Asstt. Collector, an appeal was filed before the Collector (Appeals), and he had allowed the appeal, and being aggrieved from the aforesaid order, the Revenue has filed an appeal before the Tribunal. Shri Sohal argued that similar matters had come up for hearing before the Bench on 28th day of August 1990, and the Bench had decided the appeal in favour of the Revenue vide Order No. 395 to 398/90 B2 dated 28-8-1990 in the case of Appeal No. C/926/84 with Suppl. Appeal Nos. C/2650 to 2652/90. He pleads that the earlier decisions are in favour of the Revenue, the appeal may be allowed. 4. We have heard Shri Sohal, the learned JDR and have gone through the records. We have looked into the earlier decision of the Tribunal. Cited by the learned JDR, Para No. 5 from the said judgment is reproduced below: Para No. 5: We have heard both the sides and have gone through the facts and circumstances of the case. The facts are not disputed. The goods in dispute are film lined electrodes. The matter is fully covered by an earlier order of the Tribunal vide Order No. 11/89-B2 dated 25-1-1989 in the case of Collector of Customs, Madras v. National Carbon Co. in A. No. C/1974/83-B2. We have looked into the facts of the present appeal. We are in full agreement with the judgment of the Tribunal cited supra and we do not find any justification for the deviation from the same. Accordingly, we set aside the impugned order passed by the Collector (Appeals) and order that goods imported are to be assessed under Heading 85.03. Accordingly, the Revenue's four appeals are allowed. 5. In view of the above discussion and earlier decision of the Tribunal, we set aside the impugned order and allow the appeal and order that the goods imported are assessed under Heading 85.03. Accordingly, we allow the appeal.

Collector Of Customs vs National Carbon Co. on 4 September, 1990

Customs, Excise and Gold Tribunal - Delhi

Central Information Commission, New Delhi File No.CIC/WB/A/2010/000324 & 520­SM Right to Information Act­2005­Under Section  (19) Date of hearing : 25 March 2011 Date of decision : 25 March 2011 Name of the Appellant  : Shri S S Chawla B­4/337, 1st Floor, Sector - 1, Rohini, Delhi. Name of the Public Authority   : CPIO, Central Information Commission, 2nd Floor, B Wing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi. The Appellant was present in person. On behalf of the Respondent, the following were present:­ (i) Shri Tarun Kumar, First Appellate Authority, (ii) Shri M.C. Sharma, Nodal CPIO, (iii) Shri K.L. Das, Deputy Registrar Chief Information Commissioner : Shri Satyananda Mishra 2. Both   the   parties   were   present   during   the   hearing   and   made   their  submissions. The Appellant had wanted to know about the action taken on a  complaint he had filed before the Commission regarding the non­compliance of  the CIC orders by the CPIO of the public authority concerned. The CPIO had  responded late and only after the direction by the Appellate Authority. 3. The Appellant submitted that for a long time now his complaints to the  Commission against non­compliance of the CIC orders had not been heard and  CIC/WB/A/2010/000324 & 520­SM disposed of. He further submitted that he was not also advised appropriately  about the action being taken by the Commission in these cases. Thus, even  after nearly 2 years, he was yet to know what action was being taken against  the CPIO for non­compliance of the CIC orders. 4. The CPIO submitted that the complaints filed by the Appellant against  the non­compliance of the CIC orders were not heard by the IC concerned who  wanted   these   to   be   heard   by   some   other   IC   instead.   When   the   then   CIC  allocated these to an other IC, even that IC decided not to hear the cases,  presumably on the ground that some order passed by him earlier had been  challenged by the Appellant before the High Court. Thus, his complaints still  remain unresolved. 5. Out of these two cases, reportedly one case was disposed of by the IC  concerned while the other case stood transferred to the registry of the IC (DS).  Since the Appellant has been waiting for the information for such a long time,  there is a necessity to hear this case at the earliest and pass an appropriate  order. We would like to direct the CPIO to bring this to the notice of the IC (DS)  and request her to hear this case as soon as possible. 6. While parting with this case, we would like to observe that the CPIO of  the CIC must adhere to the provisions of the Right to Information (RTI) Act most  scrupulously and follow all the time lines without fail. The delay in this case is  sought to be explained on the ground that the relevant case files kept on being  transferred from one IC to another and could not be collected by the CPIO in  time.   Be   that   as   it   may,   all   RTI   requests   from   citizens  must   be   dealt   with  promptly and with a view to providing as much information as possible. We  hope that such delays will not be repeated in future. CIC/WB/A/2010/000324 & 520­SM 7. Two   cases  have   been   registered   on   the   same   second   appeal.  Both  these are disposed of accordingly. 8. Copies of this order be given free of cost to the parties. (Satyananda Mishra) Chief Information Commissioner Authenticated true copy.  Additional copies of orders shall be supplied against  application and payment of the charges prescribed under the Act to the CPIO of this  Commission. (Vijay Bhalla) Deputy Registrar CIC/WB/A/2010/000324 & 520­SM

Mr. S S Chawla vs Central Information Commission on 25 March, 2011

Central Information Commission

IN THE HIGH COURT OF KERALA AT ERNAKULAM Bail Appl..No. 3068 of 2009() 1. PUTHANPURAYIL HASHIM,AGED 17 YEARS, ... Petitioner 2. SIJAD, AGED 22 YEARS, S/O.ABDUL JALEEL, 3. MOHAMMED ALI, AGED 19 YEARS, 4. MOHAMMED NIYAS, AGED 19 YEARS, 5. CHATHOTH RASHEED, AGED 18 YEARS, Vs 1. STATE OF KERALA REPRESENTED BY S.H.O. ... Respondent For Petitioner :SRI.P.M.PAREETH For Respondent :PUBLIC PROSECUTOR The Hon'ble MR. Justice K.T.SANKARAN Dated :18/06/2009 O R D E R K.T.SANKARAN, J. ---------------------------- B.A.No.3068 of 2009 ---------------------------- Dated this the 18th day of June, 2009 ORDER This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioners are respectively accused Nos.1, 3, 4, 6 and 7 in Crime No.171 of 2009 of Nadapuram Police Station. 2. The offences alleged against the petitioners are under Sections 143, 147, 148 and 506(1) read with Section 149 of the Indian Penal Code and Sections 3 and 5 of the Explosive Substances Act. 3. The prosecution case is that on 16.5.2009, while the defacto complainant was coming from the place of his work, the accused persons came in front of a mosque and hurled explosive substances on him shouting that he must be killed. 4. I have gone through the case diary. Some of the persons, questioned by the police, disclosed to the police that the first accused had not gone out to the house on the date of the incident. One of his relatives had come from abroad and the first accused was through out in his house. Therefore, I am inclined to grant anticipatory bail to the first accused, Hashim. BA No.3068/2009 2 5. In so far as the other petitioners are concerned, they stand on a different footing. On going through the case diary, I am not, prima facie, inclined to accept the case put forward by the learned counsel for the petitioners that there are no materials to connect those accused persons with the offence. The investigation is not complete and if anticipatory bail is granted to petitioners No.2 to 5, it would prejudicially affect the proper investigation of the case. Accordingly, there will be a direction that in the event of the arrest of the first accused (Hashim), the officer in charge of the police station shall release him on bail for a period of one month on his executing bond for Rs.25,000/- with two solvent sureties for the like amount to the satisfaction of the officer concerned, subject to the following conditions: a) The first petitioner shall report before the investigating officer between 9 A.M. and 11 A.M. on all Mondays, till the final report is filed or until further orders; b) The first petitioner shall appear before the investigating officer for interrogation as and when required; c) The first petitioner shall not try to influence the prosecution witnesses or tamper with the evidence; d) The first petitioner shall not commit any offence or indulge in any prejudicial activity while on bail; e) On the expiry of the period mentioned above, the first petitioner shall surrender before the Magistrate concerned and seek regular  BA No.3068/2009 3 bail; f) In case of breach of any of the conditions mentioned above, the bail shall be liable to be cancelled. The prayer for anticipatory bail made by petitioners No.2 to 5 is rejected. 6. The learned counsel for the petitioners submitted that the second petitioner (Sijad), who is the third accused in the case, has to appear for an examination on 24.6.2009 at Akbar Academy of Airline Studies, Kozhikode. In the event of arrest of the second petitioner (Sijad), arrangements shall be made to take him to the examination centre on that day so that he can appear for the examination. The Bail Application is partly allowed as above. K.T.SANKARAN, JUDGE csl 

Puthanpurayil Hashim vs State Of Kerala Represented By ... on 18 June, 2009

Kerala High Court

[Complete Act]

Central Government Act

JUDGMENT John Beaumont, C.J. 1. This is an appeal under the Letters Patent from a decision of Mr. Justice Madgavkar in second appeal, and the case raises a short but interesting point of law. The plaintiff claims to succeed to certain watan property as the heir of his natural father Sangangauda. The answer of the defendants is that the plaintiff was adopted into the family of one Mudirangappa and that thereby he lost his right to succeed to his natural father. The reply of the plaintiff is that the alleged adoption was invalid. 2. The material facts are that the adoptive father Mudirangappa died in 1875 leaving a widow named Dandava, whom I will hereafter refer to as "the father's widow." He also left a son named Timappa who died in 1881. Timappa left a widow named Parvateva, whom I will refer to as " the son's widow." It is clear that on the death of the son the estate would vest in the son's widow, and that whether before or after the death of the son the father's widow could not herself exercise any power of adoption, because under the general rule of Hindu law the widow has no power to adopt if by so doing she will divest the estate of another. Therefore, the father's widow never actually had a power of adoption which she could have exercised at any given moment. On the other hand the son's widow could undoubtedly have adopted to her husband after his death. In 1902 the son's widow consented to the father's widow adopting the plaintiff, and it is not disputed that a form of adoption of that nature was gone through. The question is whether that adoption is valid. 3. Mr. Jayakar, to whom we are indebted for his very able argument, has referred us to a large number of cases commencing with the Privy Council case of Musswuat Bhoobun Moyee Debia v. Ram Kishore Acharj Chowdhry (1865) 10 M.I.A. 279, and including Pudma Coomari Debi v. Court of Wards (1881) L.R. 8 I.A. 229, Thayammal and Kuttisami Aiyan v. Venkatarama Aiyan (1887) L.R. 14 I.A. 67, Keshav Ramkrishna v. Govind Ganesh (1881) I.L.R. 9 Bom. 94, Krishnarav Trimbak Hasabnis v. Shankarrav Yinayak Hasabnis (1892) I.L.R. 17 Bom. 164, Ramkrishna v. Shamrao (1902) I.L.B. 26 Bom. 526, s.c. 4 Bom. L.R. 315, F.B. Anandibai v. Kashibai (1904) I.L.R. 28 Bom, 461, s.c. 6 Bom. L.R. 464, and Manikyamala Bose v. Nando, Kumar Bose (1906) I.L.R 33 Cal. 1306. Those cases establish a rule which, I think, is accurately stated in the judgment of the lull bench of this Court in Ramhriehna v. Shamrao (1902) I.L.B. 26 Bom. 526, s.c. 4 Bom. L.R. 315, F.B., a judgment which was expressly approved by the Privy Council in Madana Mohana v. Purushothama (1918) L.R. 45 I.A. 156, s.c. 20 Bom. L.R. 1041. The learned Judge Mr. Justice Chandavarksar delivering the judgment of the Court states the rule which he gathers from the Privy Council decisions at p. 532 in these terms: Where a Hindu dies leaving a widow and a son, and that son himself dies leaving a natural born or adopted eon or leaving no son but his own widow to continue the line by means of adoption, the power of the former widow is extinguished and can never afterwards be revived. 4. Now it is clear that the facts of this case do come within the literal terms of that rule, because a Hindu died leaving a widow and a son and that son died leaving his own widow. But Mr. Jayakar says that in none of those cases was the question of consent to the adoption by the person in whom the estates were vested in any way raised. Of course the facts in the various cases differ, but putting it shortly I think they were all cases of this nature: A Hindu dies leaving a widow and descendants. So long as the descendants live the widow cannot exercise her power of adoption because of the general rule that she cannot divest the estate of others, Eventually by reason of the deaths of parties and the failure of issue, natural or adopted, the estates descend upon the original deceased owner's widow and the question which the Court has had to decide has been whether, when that event happens, the power of adoption which up to then the widow has not been able to exercise can then be exercised by her. The question really has been whether the power should be treated as having been in abeyance while the estates were vested elsewhere than in the widow and as having revived on the estates descending upon the widow, or whether the power should be treated as having come to an end, The Privy Council decided that in such cases the rule was that the power had come absolutely to an end, had been extinguished and could not be revived. I think, as appears from the Privy Council judgment in Mussumat Bhoobun Moyee Debia v. Ram Kishore Acharj Chowdhry (1865) 10 M.I.A. 279, that the rule is rather one of convenience than of principle, and that the Court felt that at some time or other this power of adoption must come to an end and could not be kept in a state of suspended animation indefinitely. At any rate the cases do undoubtedly establish that that rule exists, but Mr. Jayakar is quite right in saying that in none of those cases was the question of consent by the owner for the time being of the estate discussed, and he says that this case really falls within the principle of Payapa v. Appanna (1898) I.L.R. 23 Bom. 327. Now Payapa's case was the converse of the present case. In that case the son had predeceased the father leaving a widow. Therefore, on the father's death the estate descended-upon his widow, who had a power of adoption exercisable at any time. She consented to the son's widow exercising a power of adoption to the son, and it was held that that adoption was good. Mr. Justice Ranade who gave the judgment of the Court refers in the first instance to the settled rule that (p. 329): it is only the widow of the last full owner who has the right to take a son in adoption to such owner, and that a person in whom the estate does not vest cannot make a valid adoption so as to divest (without their consent) third parties, in whom the estate has vested, of their proprietary rights. 5. Then he says that there are four exceptions to this general rule and the third one is stated in these terms (p. 331):" When the adoption takes place with the full assent of the party in whom the estate has vested by inheritance, the adoption is validated by such consent," and in the course of his judgment Mr. Justice Ranade gives what he considers the justification for the rule. He says at page 332 of the report: Nothing is more common in this country that to find that parents, when they grow old, and have the misfortune of losing an only son in their old age, leaving a young widow behind, think it their duty to console that widow for the loss she has suffered by permitting her to adopt a son in preference to adopting a son themselves. 6. Mr. Nilkant has suggested that Payapa's case is not good law, and he relies on an observation of Mr. Justice Chaubal in Datto Govind v. Pandurang Vinayak (1908) I.L.R. 32 Bom. 499. s.c. 10 Bom. L.R. 692. But Payapa's case has been followed by this Court in Shidappa v. Ningangauda and in Yeshvadabai v. Ramchandra . In particular, in the case of Shidappa v. Ningangouda, Mr. Justice Shah, a great authority on Hindu law, not only follows Payapa's case but expressly says that he approves of it. I think, therefore, that we must take Payapa's case as being an authority binding upon this Court. But I also think that the learned Judges who decided Payapa's case had not present to their minds any case of the exercise of a power of adoption which had come to an end. They state the rule by saying that the adoption is "vahdated " by the consent. The word " validated " would be an inappropriate word to apply to a power which had altogether ceased to exist. I think, therefore, we must take the rule as stated in connection with the facts of that particular case in which there is no suggestion that the power had come to an end and had been extinguished, The real question which we have to determine in this appeal is whether this case on its facts falls within Payapa'a case or whether it falls within the general rule established by the Privy Council as stated in Ramkrishna v. Shamrao (1992) I.L.R. 26 Bom. 526, s.c. 4 Bom. L.R. 315, F.B., Mr. Jayakar says, and I am disposed to agree with him, that there is no substantial difference between the adoption which was held valid in Payapa'a case and the adoption with which we are dealing in this case. It does not seem to matter to the reversioners whether the father's widow consents to the adoption by the son's widow or whether the son's widow consents to the adoption by the father's widow. In either case the adoption goes in the same line and the effect on the reversioners is the same. But there is, in my opinion, this essential difference between Payapa'a case and the present case, In Payapa'a case there was no question of the power to adopt of the son's widow having been extinguished. It is true that it had never become exercisable and could not be exercised at the moment when the particular adoption was made, because any such exercise would divest the estate of the father's widow. But if that is the only objection to the exercise of the power, it seems logical to hold that the objection can be removed with the consent of the person affected, namely, the father's widow. But in the present case, having regard to the decisions of the Privy Council, we are bound to hold that the power of adoption in the father's widow has absolutely come to an end, has been extinguished and cannot be revived; and if that is so, it seems to me impossible to say that it can be validated by the consent of anybody. However the case is put, it is clear that the power of adoption which was exercised in this case was the power of the father's widow, and not the son's widow. However much it may have been exercised with the consent of the son's widow, it is in no sense a delegation of the power which admittedly existed in the son's widow, because any adoption by the father's widow must be to her husband, the father, and any adoption by the son's widow must be to her husband, the son. On the whole, therefore, I have come to the conclusion that to apply the principle of Payapa'a case to the facts of this case would really be to go behind the rulings of the Privy Council, and that we must hold that the adoption by the father's widow in this ease was invalid, The appeal must accordingly be dismissed with costs. Murphy, J. 1. The facts out of which this appeal arises are the occasion of a now point of Hindu law, or at any rate of one not directly included in existing decisions. The original plaintiff, Hanmantgowda, was adopted into another family by Dandava, a widow to her deceased husband. He, however, claimed to be the next heir to his natural father, on the ground that his adoption by Dandava had been invalid, because at the time she had no power to adopt, since her husband, who had died in 1875, had left a son Timappa who died in 1881 leaving a widow Parvateva, who on these facts was alone entitled to adopt a son to the family. The reply was that Dandava's adoption had been made with Parvateva's consent, which validated it. Whether Parvateva could, by consenting to the adoption, validate it, is the only point in the appeal. 2. I think the general rule is beyond dispute, that the person entitled to adopt in a Hindu family is the widow of the last male owner, with certain exceptions, such as a widow in an undivided Hindu family who adopts with the consent of her husband's surviving coparceners. The original Court dismissed the plaintiff's suit. The first appellate Court allowed it, and a single Judge of this Court agreed with the first appellate Court in second appeal. This appeal is under the Letters Patent. 3. The general rule to be derived from authoritative decisions is that where a Hindu dies leaving a widow and a son, and the son dies leaving a widow to continue the line by means of an adoption, the power of the first widow is extinguished and can never be revived. We have considered the cases of Pudma Coomari Debi v. Court of Wards (1881) L.R. 8 I.A. 229, Mussumat Bhoobum Moyee Debia v. Ram Kishore Acharj Chowdhry (1865) 10 M. I.A. 279, Thayammal and Kuttisami Aiyan v. Venkatarama Aiyan (1887) L.R. 14 I.A. 67 Ramkrishna v. Shamrao (1902) I.L.R. 26 Bom. 526, s.c. 4 Bom. L.R. 315, F.B., which was a decision of the full bench, Krishnarao Trimbak Hasabnia v. Shankarrav Vinayah Hasabnis (1892) I.L.R. 17 Bom. 164 and Vaman Vithal v. Venkaji Khando (1920) I.L.R. 45 Bom. 829. s.c. 23 Bom. L.R. 269 and the cases relied on for the contrary, the original one being Payapa's casewhich is the exact converse of the present onePayapa v. Appanna (1898) I.L.R. 23 Bom. 327. The facts there were that the widow of the last male owner, in whom the right vested, consented to an adoption by her predeceased son's widow, such an adoption being held valid, as being in agreement with Hindu sentiment, by the late Mr. Justice Ranade. The later Bombay cases are all on adjacent facts to those in Payapa'a case: see Vaman Vithal v. Venkaji Khando and Yeshvadabai v. Ramchandra . Mr. Justice Eanade's third exception, in Payapa's case, rests on an analogy drawn from the parallel instances where an adoption is permissible with the consent of the person in whom the estate vested at the time, and Mr. Jayakar's argument really is, that this is such a case, and therefore comes within that rule. On the facts in Payapa's case the widow of the predeceased son might have validly adopted with the consent of her father-in-law and the decision is really an extension of this power of consenting to the widow, in whom the estate vested on his death. But the facts are not so here. On those of the present case, Dandava never had a power of adoption, for on her husband's death her son stood in its way, and on his death, the estate vested in the son's widow, and if Dandava adopted, she was really doing so as deputy of her daughter-in-law, and there is no authority for holding such an adoption valid. The rule is clear that, in such circumstances, the power of the former widow, if it ever existed, is extinguished, and that it can never be revived. I agree that the appeal must be dismissed with costs, and the decree of the lower appellate Court confirmed.

Author: J Beaumont

Sangangauda Fakirgauda vs Hanmantgauda Sangangauda on 7 April, 1931

Bombay High Court

Court No. - 42 Case :- CRIMINAL MISC. WRIT PETITION No. - 12466 of 2010 Petitioner :- Gorakh Yadav & Others Respondent :- State Of U.P. & Others Petitioner Counsel :- Tulsi Singh Yadav Respondent Counsel :- Govt. Advocate Hon'ble Imtiyaz Murtaza,J. Hon'ble Naheed Ara Moonis,J. Heard learned counsel for the petitioners and also learned A.G.A.  appearing for the State. We   have   been   taken   through   the   allegations   contained   in   the  F.I.R. and the material on record.  Issue   notice   to   respondent   no.4   who   may   file   counter   affidavit  within four weeks. Learned A.G.A. may also file counter affidavit in  the meantime. Rejoinder affidavit if any may be filed within two  weeks next thereafter.  List this matter after expiry of the aforesaid period.  Till next date of listing or till submission of charge sheet whichever  is   earlier,   the   arrest   of   the   petitioners,   namely,   Gorakh   Yadav,  Pyari Devi, Arvind Yadav and Panch Deo Yadav who are wanted  in Case Crime No.577 of 2010, under Sections 452, 394, 323, 504  and 506 I.P.C., P.S. Karanda, district Ghazipur shall remain stayed  of   course   subject  to   the   restraint  that   the   petitioners  shall   fully  cooperate  with  the  investigation and  shall  appear as  and  when  called upon to assist in the investigation.  Order Date :- 14.7.2010 Shahnawaz

Gorakh Yadav & Others vs State Of U.P. & Others on 14 July, 2010

Allahabad High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.17460 of 2011 Satrughan Manjhi Versus The State Of Bihar ------- Shahid (Hemant Kumar Srivastava,J) 05/ 07.09.2011 The office has reported that in spite of issuance of reminder to Fast Track Court No. III, Patna, only photo stat copy of the supplementary case diary has been received from the ASI Parsa Bazar police station but main case diary has not been received as yet. Let a show cause notice be issued to the court of Fast Track Court No. III, Patna as to why stern action be not taken against him with direction to him to submit the main case diary of Fulwari Sharif (Parsa Bazar) P.S. Case no. 693/2005 corresponding to Sessions trial no. 1697/2010 to this court positively within ten days from today. Let this order be communicated to the Fast Track Court No. III, Patna in Fulwari Sharif (Parsa Bazar) P.S. Case no. 693/2005 corresponding to Sessions trial no. 1697/2010 through FAX at the cost of the State.

Satrughan Manjhi vs The State Of Bihar on 7 September, 2011

Patna High Court - Orders

Gujarat High Court Case Information System Print FA/2893/2008 3/ 3 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 2893 of 2008 ========================================================= RUKHSANABIBI RASHIDBHAI MALEK & 5 - Appellant(s) Versus JAFARKHAN BANEKHAN PATHAN & 3 - Defendant(s) ========================================================= Appearance : MR.HIREN M MODI for Appellant(s) : 1 - 5. None for Defendant(s) : 1 - 2. MR GC MAZMUDAR for Defendant(s) : 3, MR HG MAZMUDAR for Defendant(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 08/07/2008 ORAL ORDER1. Heard learned advocate Mr. Hiran M. Modi is appearing on behalf of appellants ? claimants. Learned advocate Mr. H.G. Majmudar is appearing on behalf of opponent No.4. 2. Learned advocate Mr. Modi appearing on behalf of appellant submitted that Tribunal has committed apparently error relate to factual aspect that respondent ? driver was deleted but owner was not deleted. But, Tribunal has mentioned in the award that appellant has also deleted the owner of the vehicle. He also submitted that application, to join Insurance Company as a party, has been misplaced before the Tribunal and therefore, only on that ground, Tribunal has dismissed the application as observed in Para 8 which is quoted as under : ?S8. It is to be noted that, to arrive at the decision in the petition filed under Section 163A no negligence is required to be proved, but, as discussed herein above, driver of the another vehicle i.e. truck was deleted vide application Exh.No.28 on 29.6.2007 and owner of the said truck was also deleted vide application at Exh.29 on 29.6.2007 and the insurance company of the said truck is not joined as party, if we think further, admittedly the deceased was driving the said matador at the time of incident, therefore, insurance company of the said matador can not be held liable and as discussed herein above the driver and owner of other vehicle truck are deleted, therefore, no any liability would be fastened on the other vehicle truck, therefore, under the said circumstances, no liability can be fastened either upon the owner or upon the insurance company of the said matador as its driver succumbed to injury in the present incident. Thus, under the said circumstances and as discussed herein above, no liability can be fastened on any of the opponents. Therefore, under the said circumstances and evidence on record, as per my view, this claim petition is deserves to be dismissed and therefore, I answer Issue Nos.1, 2 and 3 accordingly, and pass following final order...?? 3. In view of aforesaid observations made by Tribunal, learned advocate Mr. Modi submitted that it is based on having error on factual aspect if it is to be corrected, the result would be different. Therefore, when Tribunal has committed factual error while passing the award, the application for review is maintainable before the Tribunal as per decision reported in Manu/GJ/1713/06. 4. Learned advocate Mr. Majmudar has no objection if appellant will file review application before the Tribunal only for correcting the factual error as mentioned in appeal memo. 5. Therefore, it is open for the appellant to file review application for correcting the factual error committed by Tribunal. As and when, such application will be received by Tribunal, it is directed to Tribunal to consider it and find out that if any factual error is committed by Tribunal or not as suggested by appellant and then to pass appropriate order after giving reasonable opportunity of hearing to all the concerned parties. 6. In view of above observations and directions, present First Appeal is disposed of. [H.K. RATHOD, J.] #Dave     Top

Author: H.K.Rathod,&Nbsp;

Rukhsanabibi vs Jafarkhan on 8 July, 2008

Gujarat High Court

Court No. - 28 Case :- WRIT -- C No. -- 23808 of 2007 Petitioner :- Stayanarain Singh Respondent :- State Of U.P. Through Its Secretary Secondary 8:Others Petitioner Counsel :- R.C. DwiVedi,KaInleshwar Singh Respondent Counsel :- C.S.C.,Anil Tiwari,I.R. Singh Hon'ble Saniav Misra.J. Passed over on the illness slips of Sri Atnit Saxena, learned counsel for the petitioner and Sri Anil Tiwari, learned counsel for the respondents. Order Date :- 29.7.2010 Lbm/--

Stayanarain Singh vs State Of U.P. Through Its ... on 29 July, 2010

Allahabad High Court

Court No. - 28 Case :- BAIL No. - 5703 of 2010 Petitioner :- Haricharan Respondent :- State Of U.P. Petitioner Counsel :- S.G. Singh,Anuj Pandey Respondent Counsel :- Govt.Advocate Hon'ble Shri Kant Tripathi,J. Counter affidavit filed on behalf of State is taken on record. Heard the learned counsel for the applicant and the learned AGA and perused the record. The learned counsel for the applicant submitted that the recovered quantity of 200 gms. smack was less than the commercial quantity and no public witness was called at the time of the alleged recovery and the recovery has been planted by the police to falsely implicate the applicant. There does not appear to be any reasonable ground to believe that the applicant will tamper with the witnesses or abscond, if released on bail. Keeping in view the nature of the offence, evidence, complicity of the accused, the severity of the punishment and submissions of the learned counsel for the applicant and the learned AGA, I am of the view that the applicant has made out a case for bail. Let the applicant Haricharan involved in case crime No. 288 of 2010 under sections 8/21 of the Narcotic Drugs and Psychotropic Substances Act, 1985, P.S. Kamlapur District Sitapur be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned and also subject to the following conditions: In case of breach of any of the above conditions, the trial court will be at liberty to cancel the bail. Order Date :- 29.7.2010 MTA

Haricharan vs State Of U.P. on 29 July, 2010

Allahabad High Court

JUDGMENT S.B. Sinha and G.C. Bharuka, JJ. 1. In this application the petitioners have prayed for issuance of a writ of or in the nature of mandamus directing the respondents to pay their salary with effect from August, 1991. 2. The fact of the matter lies in a very narrow compass. 3. The petitioners are said to be regular teachers of Pronnat Middle School (Hindi) situated in Mohalla Shivganj in the town of Narkatiaganj, in the district of West Champaran at Bettiah (hereinafter referred to as the 'Middle School'). There is a Girls High School at Narkatiaganj in the name of Matisara Kuer Balika Uchha Vidyalya (hereinafter referred to as the 'High School'). 4. By reason of an order dated 11th July, 1990 the District Education Officer Bettiah deputed five Assistant Teachers from different Elementary Schools including the petitioners. The said order is contained in Annxeure-1 to the writ application. By reason of the said order dated 11th July, 1990 it was directed that the petitioners would be paid their salary on the basis of the absentee list sent to the aforementioned Pronnat Middle School, Shivganj, Narkatiaganj, pursuant whereof they were relieved from the Middle School and Joined the High School. On 8-8-1991 the petitioners were suspended allegedly on the ground that they had not been attending classes in the aforesaid Middle School, 5. However when the matter was reported to the District Superintendent of Education that the petitioners had been deputed in the said School and they had been working therein, the order of suspension was withdrawn and the salary due to the petitioners was directed to he paid. Despite the said order, however, the Headmaster of the said School did not make any payment of salary to the petitioners. Allegedly the District Education officer had been creating complications and he issued orders for cancellation of deputation on 5-3-1992 but again issued and order on 16-3-1992 cancelling the earlier order dated 5-3-1992. 6. The petitioners have contended that the matter relating to non-payment of their salary was brought to the notice of respondent No. 2 who by a letter dated 9th April, 1992 requested the Director, Primary Education, Government of Bihar to see that the Headmaster of the Middle School may not create unnecessary problem in relation to payment of salary to the petitioners (Annexure-4). 7. It was further alleged that on 24th April, 1992 the District Education Officer issued orders directing the Headmaster of the Middle School to pay salary to the petitioners. 8. It has been contended by the petitioners that despite the same the respondent No. 5 did not obey the said order and prevailed upon respondent-District Education Officer to treat the letter of respondent No. 2 dated 9th April, 1992 (Annexure-4) as doubtful and further had prevailed upon him to implement his earlier order cancelling the deputation. 9. It is alleged that the matter was again brought to the notice of the Director of Secondary Education and he by his letter dated 14th July, 1992 affirmed that his earlier letter dated 9-4-1990 was a genuine document. Thereafter, the District Education Officer by his letter dated 20th July, 1992 (Annexure-9) directed that the petitioners would continue to work on deputation in the High School. 10. A caveat petition has been filed on behalf of respondent No. 5, namely, the Headmaster of the School wherein it has been stated that he is not responsible for payment of salary to the petitioners as the Headmistress of the Middle School was the drawing and disbursing Officer in relation to the petitioners. It has further been pointed out that the purported order of deputation passed in favour of the petitioner was illegal. 11. It has further been asserted that the Director, Primary Education, who is the controlling Officer of the teachers of elementary Schools has not issued any order directing the District Superintendent of Education to allow the petitioners to work on deputation in the High School. 12. It has further been asserted that the District Superintendent of Education has stated that if the petitioners joined their parent School, their salary would be paid. 13. A counter affidavit has also been filed on behalf of the respondent Nos. 2 to 4. In the said counter-affidavit it has specifically been pointed out that the respondent No. 5 is not the drawing and disbursing Officer in respect of the petitioners as would be evident from Annexure-2 to the writ application. 14. It has further been asserted that the orders of deputation were cancelled wherein it had further been mentioned that those persons, should return back to the original place of posting or else they would not be paid their salary. The said letter is contained in Annexure-A to the counter affidavit. 15. According to the State, despite several orders the petitioners did not join their original places of posting. Thereafter another letter was issued on 17-2-1992 wherein it was pointed out that the persons who have been deputed the High School, would automatically be relieved from the postings therein. 16. It has further been pointed out that although the Director Secondary Education Patna had requested to the Director Primary Education, Bihar to pass order with respect to deputation of teachers to High School, but no such order has been passed by the Director, Primary Education, Bihar Patna. 17. Mr. Rajendra Prasad Singh, learned Counsel appearing on behalf of the petitioner submitted that the petitioners were deputed to the High School by an order of competent Officer and the said order has also been affirmed by the Director Primary Education as would be evident from Annexure-4 to the writ application. The learned Counsel further submitted that the contents of the counter affidavit cannot be accepted in view of the fact that even in 1992 the Director Secondary Eduction as also the District Education Officer directed the petitioners to continue on deputation in the said High Schools. The learned Counsel, therefore, submitted that the petitioners have been deprived from their rights to received their salary. 18. This case depicts a sordid state of affiairs. It has not been disputed nor could it be disputed that the qualification, process of recruitment as also the procedures for transfer and posting of the teachers of the Elementary Schools and those of High Schools are absolutely different and are governed by the different statutes and rules. 19. The District Education Officer is not the controlling authority in relation to the teachers of Primary Schools and thus he had absolutely no jurisdiction to issue the purported order of deputation as contained in Annexure-1 to the writ application. 20. The Director, Secondary Education, has also committed a grave error in law in making a request to the Director Primary Education to allow the petitioner to be on deputation in terms of his letter dated 9th April, 1992 as contained in Annexure-2 to the writ application. 21. However, apparently in terms of his letter dated 9th April, 1992 the Director, Secondary Education did not pass any order either directing payment of salary to the petitioner or affirming the order of deputation of the petitioners passed by the District Education Officer in terms of Annexure-1 to the writ application. The said letter dated 9th April, 1992 (Annexure-4y was issued merely by way of request to the Director Primary Education. It is not the case of any of the parties that pursuant to Annoxure-4 any order had been passed by the Director Primary Education or the District Supdt. of Education who is the controlling authority in relation to the petitioners. 22. Evidently, therefore, the purported order of deputation as contained in Annexure-1 as also the subsequent letters issued either by the Director Secondary Education and/or District Education Officer allowing the petitioners to continue on deputation in the High School despite issuance of Annexures-A and B to the counter affidavit must be held to be wholly illegal and without jurisdiction. 23. The petitioners thus have not deprived any legal right to continue to be posted on deputation in the said High Schools either pursuant to Annexure-1 or any other letter and /or direction issued by the Director Secondary Education and/or District Education Officer. 24. However, our aforementioned finding should not be construed as a direction to the State not to pay salary to the petitioners inasmuch as if the petitioners had been working in the High School pursuant to Annexure-1 and/or subsequent orders issued by the Director of Secondary Education and/or District Education Officer, they should, in our opinion, be paid their due salary. The respondents, therefore, are hereby directed to pay due salary to the petitioners immediately after they join their parent Schools. 25. We, however, before parting with this case may observe that it is intriguing that such illegal orders are passed by the authorities of the Education Department, as a result whereof the petitioners had so far been deprived from receiving their due salary in time. We, therefore, direct; the Special Secretary, Human Resources Development to make an enquiry in the matter so that responsibilities of the individual officers may be fixed upon the officers who are responsible for creating such a situation. 26. We hope and trust that action shall be taken as against the erring Officers so that in future such illegalities are not committed. 27. This writ application, for the reasons aforementioned is disposed of with the aforementioned directions and observations.

Smt. Arti Bishwas And Ors. vs State Of Bihar And Ors. on 30 October, 1992

Patna High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 37700 of 2008(K) 1. SALIM A, AGED 52 YEARS, ... Petitioner Vs 1. THE CHAIRMAN, HDFC BANK, ... Respondent 2. THE BRANCH MANAGER, BDFC BANK LTD., 3. THE MANAGER,HDFC BANK LTD., 4. CIRCLE INSPECTOR OF POLICE,KOLLAM 5. THE R.T.O. KOLLAM, OFFICE OF For Petitioner :SRI.P.R.MILTON For Respondent : No Appearance The Hon'ble MR. Justice S.SIRI JAGAN Dated :19/12/2008 O R D E R S.SIRI JAGAN, J - - - - - - - - - - - - - - - - - - - - - - - W.P(C)No. 37700 of 2008 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of December, 2008. J U D G M E N T The petitioner is aggrieved by the action of the respondents 1 to 3 in seizing a vehicle hypothecated to them by the petitioner, which was purchased by the petitioner with financial assistance from respondents 1 to 3. The petitioner now seeks the following reliefs: Respondents 1 to 3 are not entities against which this court can issue a writ under Article 226 of the Constitution of India. For the purpose of making the writ petition maintainable, the 4th respondent has been impleaded, with a vague averment that it was with the help of the 4th respondent that the vehicle has been seized. But in the writ petition it is candidly admitted that the vehicle was seized by an advocate on behalf of the respondents 1 to 3, who has not been impleaded in this  W.P(C)No. 37700 of 2008 - 2 - writ petition. That being so, on the basis of such vague averments against the 4th respondent, I am not inclined to entertain this writ petition. I am of opinion that the remedy of the petitioner lies in filing a suit against respondents 1 to 3 for the reliefs now sought by the petitioner. In the above circumstances, without prejudice to such right of the petitioner, this writ petition is dismissed. S.SIRI JAGAN, JUDGE rhs 

Salim A vs The Chairman on 19 December, 2008

Kerala High Court

JUDGMENT Gurusharan Sharma, J. 1. Title Suit No. 52 of 1979 was filed for declaration pf title and recovery of possession over 2.35 acres land, bearing Plot No. 2990, appertaining to Khata No. 206, under Khewat No. 3/1, situate in village Hesadih, within Sonahatu Police Station of Ranchi District, detailed in Schedule 'B' to the plaint as also for mesne profits from 1973. 2. According to the plaintiffs Revisional survey Plot No. 2990 was carved out from Cadestral Survey Plot No. 2323, which was raiyati land of their agnates the defendants 4 to 9, but in Revisional survey it was wrongly recorded as gair majana malik-parti pathar, The defendants 1 to 3 were sons to Kashi Nath Singh Munda, the then landlord. 3. The defendant No. 1 did not contest the suit. The defendants 2 to 3 denied plaintiffs agnatic relationship with the defendants 4 to 9. According to them nature of the disputed land was not parti pathar and the plaintiffs ancestor Gokul Mahto was never in possession of any portion of Cadestral survey Plot No. 2323. It was mundari-khunt-katti tenancy land and entry thereof made in the Revisional survey record-of-rights was conclusive and the same could not have been challenged in suit. 4. The suit was decreed on contest with costs as against the contesting defendants 2 and 3 and without costs against the defendants 1 and 4 to 11 and the plaintiffs right, title and interest was declared. It was held that the plaintiffs were raiyats of suit land and were dispossessed therefrom on or after 12.11.1973 and as such were entitled to recover possession from the defendants 1 to 3. 5. The defendants 2 and 3 preferred Title Appeal No. 57 of 1983 which was also dismissed by the impugned judgment and decree dated 17.9.1987 and the findings of the Trial Court were affirmed. 6. Both the Courts below recorded concurrent findings of fact that plaintiffs were in possession of the suit land and were dispossessed only before initiation of the proceeding under Section 144 of the Code of Criminal Procedure, it was also found that Revisional survey Plot No. 2990 was part of Cadestral survey Plot No. 2323, which was raiyati land of plaintiffs' ancestors and was wrongly recorded as gair majarua malik land in Revisional survey khatian. Revisional survey Plot No. 2991 was carved out of Cadestral survey Plot No. 2324, which was hillock, having an area of 11 decimals, which should have been recorded as gair majarua malik-parti pather. 7. Defendants preferred the present Second Appeal which was admitted on the following substantial question of law; "In view of the provision of Section 256 of the Chotanagpur Tenancy Act, whether the Courts below could have decreed the suit." 8. Admittedly, Plot No. 2323 appertaining to Khata No. 113, having an area of 5.05 acres stood recorded as raiyati Don II land of the plaintiffs ancestors in the Cadestral survey khatian (Exhibit 11), and Plot No. 2324, appertaining to Khata No. 151, having an area of 11 decimals stood recorded in the cadestral survey khatian (Exhibit 11/A) as gair majarua khas-parti pathar land of the then landlord, Mangal Singh Munda. From Cadestral survey Plot No. 2323, Revisional survey Plot No. 2990, having an area of 2.35 acres was carved out and recorded as gair majarua malik parti pathar land of then landlord Kashi Nath Singh in R.S. khatian (Exhibit 12) and R.S. Plot No. 2991 carved out of C.S. Plot No. 2324, having 10, decimals area was recorded in khatian (Exhibit 12/A) as raiyati land of Gokhul Mahto, father of the plaintiff No. 1. Name of Kashi Nath Singh Munda, father of the defendants 1 to 3 stood recorded as mundari khunt-kattidar of village Hesadih in the khewat (Exhibit A) of the year 1930. 9. Section 256 of the Chotanagpur Tenancy Act, 1908 (hereinafter to be referred to as 'the Act') provides "(1) Where a record-or-rights has been finally published under Section 83 of this Act or under Sub-section (2) of Section 103-A of the Bengal Tenancy Act, 1885 (8 of .1885) or amended under Section 254 of this Act, the entries therein relating to 'mundari khunt-kattidart' tenancies shall be conclusive evidence of the nature and incidents of such tenancies and of all particulars recorded in such entries and, if any, tenancy in the area, estate and tenure for which the record of rights was prepared has not been recorded therein as a 'mundari khunt-kattidari' tenancy no evidence shall be received in any Court to show that such tenancy is a 'mundari khunti-kattidari' tenancy. 10. Placing reliance on Exhibits 6 and 7 and the evidence of PW 7 and other materials on record, both the Courts below recorded concurrent findings of fact that there was a mistake in revisional survey record-of-rights in respect of raiyati Khata No. 33 and gair majarua malik Khata No. 206. In fact, the Revisional survey Plot No. 2990 carved out of Cadastral Survey Plot No. 2323 ought to have been recorded under raiyati Khata No. 33 of Gokhul Mahto, the plaintiffs ancestor having an area of 2.35 acres, showing it an Don Class-II land and Revisional survey Plot No. 2991 carved out of Cadestral survey Plot No. 2324, which was a hillock having an area of 11 decimals, should have been shown in gair. majarua malik Khata No. 206 as parti pathar, having an area of 10 decimals. Instead of Revisional survey Plot No. 2990, Revisional survey Plot No. 2991 was erroneously shown as Don Class II and vice-a-versa Revisional survey Plot No. 2990 as shown as parti pathar. The aforesaid wrong entry made by mistake in the Revisional survey record-of-rights did not confer any right and title to the then landlord Kashi Nath Singh Munda, the ancestor of the defendants 1 to 3; rather the suit land (2.35 acres) was the property of plaintiffs* ancestor and was in their possession throughout until the defendants 1 to 3 dispossessed them prior to initiation of the proceeding under Section 144 of the Code of Criminal Procedure in November, 1973. 11. In fact, it was not a suit for correction of record-of-rights; rather it was for declaration of the title/raiyati interest of the plaintiffs and for recovery of possession over the suit land. The cause of action arose to file the suit only after the plaintiffs were dispossessed by the defendants 1 to 3 some time in November, 1973. 12. Defendants-appellants con tended that their ancestors were mundari- khunt-kattidars and, therefore, the entry made in the Revisional survey record-of- rights with regard to mundari-khunt-katti lands could not have been challenged in the present suit, the aforesaid entry was conclusive evidence and no suit to correct such entry in view of the provisions of Section 256 of the Act was maintainable. Section 92 of the Act also imposes a bar on the Court's jurisdiction in the matters relating to record-of-rights. In this regard reference may be made to a Full Bench decision in Paritosh Maity v. Ghasi Ram Maity, 1987 PLJR 354, wherein it was held that civil suit for declaration of title and confirmation of possession and inter alia challenging the entries in the revenue records was maintainable even after insertion of Clause (ee) in Section 87 of the Act. In this context the relief portion of the plaint was important. In the present case, the plaintiffs sought for declaration of right, title and interest in respect of the suit land and also for a decree for recovery of possession. The main issue in the suit was whether the suit land was in possession of the plaintiffs ancestors during Revisional survey operation, who had valid title over the same, but due to mistake in the preparation of record-of- rights, the defendants first party got opportunity to advance false claim thereon. Hence, in my opinion, pure question of title and possession was involved in the present suit. The suit was, therefore, maintainable and was not hit by "the provisions of either Section 92 or Section 256 of the Act. I therefore, find no reason to interfere with the impugned judgments and decrees passed by two Courts below. 13. In the result, this appeal is dismissed. No costs.

Author: G Sharma

Kunwar Singh Babu (Munda) And Anr. vs Dayal Mahto And Anr. on 8 October, 2002

Jharkhand High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8376 of 2010 ARJUN SINGH Versus KAMESHWAR SINGH,DARBHANGA UNIV ----------- Prakash (J.N.Singh, J.) 2 10.3.2011 Put up this case along with records of C.W.J.C No. 14276 of 2008.

Arjun Singh vs Kameshwar Singh,Darbhanga Univ on 10 March, 2011

Patna High Court - Orders

Gujarat High Court Case Information System Print FA/4131/2008 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 4131 of 2008 ========================================================= NEW INDIA ASSURANCE CO LTD THROUGH - Appellant(s) Versus VALJIBHAI CHHAGANBHAI JOSHI & 4 - Defendant(s) ========================================================= Appearance : MR VIBHUTI NANAVATI for Appellant(s) : 1, None for Defendant(s) : 1 - 4. MR HARSHIT S TOLIA for Defendant(s) : 5, ========================================================= CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 29/08/2008 ORAL ORDER Heard learned advocate Mr. Vibhuti Nanavati appearing on behalf of appellant ? Insurance Company and learned advocate Mr. Tolia appearing on behalf of respondent ? claimant on caveat. I have considered the submissions made by both the learned advocates, question involved in the present appeal requires detailed examination. Hence, appeal is ADMITTED. Learned advocate Mr. Tolia waives service of notice of admission on behalf of respondents claimants. [H.K. RATHOD, J.] #Dave     Top

Author: H.K.Rathod,&Nbsp;

New vs Valjibhai on 29 August, 2008

Gujarat High Court

S912!' ' ' A j; 'V , { petitiomr,thio hnotafitmaeforgrafitan bail. Henna, petitian Bra]:

Author: Subhash B.Adi

Jayanna vs State Of Karnataka on 31 August, 2009

Karnataka High Court

Gujarat High Court Case Information System Print SCA/13501/2011 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 13501 of 2011 ========================================================= HITESH @ HITESH CASSETTE NATVARBHAI SOLANKI - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MR AR SHAIKH for Petitioner(s) : 1, MR MAULIK NANAVATI, APP for Respondent(s) : 3, None for Respondent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 07/09/2011 ORAL ORDER Heard the learned Advocate for the petitioner and the learned AGP for the respondent. RULE. Learned AGP waives service of notice of rule on behalf of respondent No.3. Direct service is permitted for respondent Nos.1 and 2. Office is directed to list the matter for final hearing in seriatim according to the actual date of detention. (Z. K. SAIYED, J.) kks     Top

Author: Z.K.Saiyed,

Hitesh vs State on 7 September, 2011

Gujarat High Court

Gujarat High Court Case Information System Print CR.MA/40/2011 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 40 of 2011 In CRIMINAL APPEAL No. 1726 of 2006 ========================================================= JENA @ RATILAL PUNJABHAI - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : THROUGH JAIL for Applicant(s) : 1, MR. LB DABHI, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1, None for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 10/01/2011 ORAL ORDER(Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) Rule returnable on 17.1.2011. Mr. LB Dabhi, learned APP waives service of notice of Rule on behalf of respondent - State of Gujarat. (A.M.KAPADIA, J.) (BANKIM.N.MEHTA, J.) shekhar/-

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

Jena vs State on 10 January, 2011

Gujarat High Court

JUDGMENT H.L. Agrawal, C.J. 1. In this reference under Section 24(1) of the Orissa Sales Tax Act, 1947 (for short, "the Act") by the Member, Additional Sales Tax Tribunal, Orissa, the following question of law has been referred to this Court for its opinion : Whether, on the facts and in the circumstances of the case, the learned Member, Additional Sales Tax Tribunal, Orissa, was correct in interfering with the best judgment assessment of the Sales Tax Officer concerned and reducing the enhanced determined gross turnover returned resulting in reduction in the extra tax demand against the assessee ? 2. The facts of the case, briefly stated, are as follows : For the assessment year 1976-77, the dealer returned a gross turnover of Rs. 3,10,398.25 who carried on business in motor parts. The Sales Tax Officer did not accept it, inter alia, on the ground that serial No. 747 was removed from the cash memo book and no purchase voucher was produced at the check gate on 27th July, 1976. He also noticed certain suppressions of sale of different items. He accordingly proceeded to assess under Section 12(4) of the Act and made a best judgment assessment by enhancing the gross turnover to Rs. 3,87,991.94. 3. The dealer filed an appeal and the appellate authority allowed the appeal in part reducing the gross turnover to Rs. 3,49,193.25. The dealer then filed second appeal before the Tribunal, and the Tribunal accepted the explanation of the dealer regarding the absence of serial No. 747 from the cash memo book which was due to the mistake of the press. But it did not accept the explanation for other omissions and irregularities found by the subordinate authorities. But on computation, the value of the items of suppression of sale on only one day of Rs. 341 was detected in course of the inspection on 21st April, 1976, i.e., the Tribunal enhanced the gross turnover by Rs. 6,138 only reflecting the suppression only in the first quarter and directed computation of tax accordingly, thus giving some reliefs to the dealer. 4. The Revenue then filed the application for reference before the Tribunal on the ground that once the Tribunal had accepted the charge of sale suppression, the order determining the enhancement of the gross turnover only in one quarter of the assessment year in question was wrong. Referring to the decision of the Supreme Court in the case of the Commissioner of Saks Tax, Madhya Pradesh v. H.M. Esufali H.M. Abdulali [1973] 32 STC 77, the reference has been made by the Tribunal. 5. Learned Standing Counsel (C.T.) on the basis of Esufali's case [1973] 32 STC 77 (SC) submitted that the Tribunal has committed an apparent error of law in enhancing the gross turnover by Rs. 6,138 only with reference to one quarter only and that the entire year should have been taken into consideration. In Esufali's case [1973] 32 STC 77 (SC), the question was whether best judgment assessment could be made on the basis of suppression of sale for 19 days and whether that could form the basis for estimating the escaped turnover for the whole year. There, the Sales Tax Officer had reassessed the assessee under the provisions of the Madhya Pradesh General Sales Tax Act on the basis of "best judgment" by estimating his turnover on the basis that dealer had dealings outside his accounts of a particular value during the period of 19 days. No doubt, the Sales Tax Officer in that case estimated the assessee's turnover for the entire assessment period in question, an act which was challenged, and the dealer had challenged the estimate when it was observed that: ...So long as the estimate made by him is not arbitrary and has nexus with facts discovered, the same cannot be questioned. In the very nature of things the estimate made may be an over-estimate or an under-estimate. But that is no ground for interfering with his 'best judgment'.... The assessee cannot be permitted to take advantage of his own illegal acts.... In the case of 'best judgment' assessments, the courts will have to first see whether the accounts maintained by the assessee were rightly rejected as unreliable. If they come to the conclusion that they were rightly rejected, the next question that arises for consideration is whether the basis adopted in estimating the turnover has a reasonable nexus with the estimate made. If the basis adopted is held to be a relevant basis even though the courts may think that it is not the most appropriate basis, the estimate made by the assessing authority cannot be disturbed.... The principles decided in Raghubar Mandal Harihar Mandal v. State of Bihar [1957] 8 STC 770 (SC) were quoted with approval. The above proposition as such being well-settled cannot be disputed. But Esufali's case [1973] 32 STC 77 (SC) cannot be held to be an authority for a proposition that if an assessing officer applies the material with respect to only a part of the assessment year, then the court will direct him to make an estimate for the whole year, as in that case it would amount to giving a direction as to how to work out his own discretion in a best judgment assessment. After all, it is only a matter of applying his own judgment to the best of his discretion "which may be an over-estimate or an under-estimate". It cannot be said to be either arbitrary or devoid of any nexus. The jurisdiction being of an appellate authority and of the High Court, under a reference quite different, the High Court will not interfere in such circumstances. The Tribunal found it reasonable to enhance the gross turnover only by a particular sum which appeared best in its judgment. The Tribunal as a final court of fact had full authority in law to intervene and make its own assessment of the facts in exercise of its best judgment in the matter. Particularly when a further explanation offered by the dealer had been accepted, the Tribunal might have thought it fit to reduce the quantum and thus thought a particular way to reduce the enhancement of the gross turnover. 6. Learned counsel for the-dealer referred to us a decision of the Kerala High Court in the case of P.C. Ittymathew Son v. State of Kerala [1976] 37 STC 184, where in the view of the Appellate Assistant Commissioner, the suppression actually detected could be considered only to cover six months for the reason that the inspection has made in the middle of the year. There is a long discussion on this aspect of the matter to indicate that an inspection on one occasion in course of a particular assessment year may not justify an enhancement for the entire period and the interference by the Tribunal in the absence of any further material, such as, further inspection during any other period, the High Court set aside the order of the Tribunal on the ground that it had no sufficient material whatsoever "to extend same pattern to cover also six months". The above principle appears to me quite forceful and meaningful and fully supports the view taken by the learned Member. 7. I therefore hold that it is open to the assessing authority while exercising "best judgment" power of assessment to confine the additions with reference to a particular period only taking into consideration the nexus between the materials available on the record, depending upon the facts and circumstances of each case, when there is no legal compulsion that it must be for the entire assessment year. 8. I would therefore hold that no error of law has been committed in the order passed by the Tribunal. Accordingly, the answer to the question must be given in favour of the dealer and against the Revenue. In the circumstances of the case, I would, however, make no order as to costs. S.C. Mohapatra, J. I agree.

Author: H Agrawal

State Of Orissa vs Fancy Motors Accessories Agency on 9 November, 1987

Orissa High Court

Court No. - 28 Case :- WRIT - C No. - 31364 of 1990 Petitioner :- Malik Cop. Respondent :- P.O. Petitioner Counsel :- Vinod Swaroop Respondent Counsel :- S.C.,Kushal Kant Hon'ble Shri Kant Tripathi,J. Learned counsel appearing for the respondent no. 2 submitted that the respondent no. 2 has died about ten years back. The learned counsel for the petitioner prays for and is granted four weeks time to move application for substitution bringing the legal representatives of the deceased on record. List this petition after four weeks. Order Date :- 22.1.2010 RKSh

Malik Cop. vs P.O. on 22 January, 2010

Allahabad High Court

JUDGMENT Deka, J. 1. This is an appeal by Bhogiram Namasudra, Chairman, Folashbari Namasudra Fishery Co-operative Society, Ltd., against an order made by the Additional Deputy Commissioner of Kamrup, dated 27-2-52 purporting to direct a settlement of Brahmaputra Fishery No. III (A) for the year 1952-53 with Respondent 1, Sondhan Das, Managing Director of Sualkuchi Fishermen Association, Ltd., for a sum of Rs. 23,100/-. The petitioner's case is that he was the lessee of the aforesaid Fishery for the previous year and was interested in holding the fishery for two years more. Under Rule 182, Chapter 10, Assam Land Revenue Regulation,--relating to settlement of Fisheries, the Deputy Commissioner should normally fix a date for the sale of all registered fisheries held under leases expiring on the last day of the current year and the procedure is laid down in the said Chapter as to how the sale is to be conducted and settlement made. The procedure prescribed is to make a settlement of a fishery as a result of the public auction but a variation of this practice is allowable only with the previous sanction of the Provincial Government, Here, in this case, the settlement was made by the Government direct with Respondent 1 after having considered the cases of five petitioners including the present appellant. The present settlement is made as a result of the Government's order dated 7-1-52. The Deputy commissioner or in his place the Additional Deputy Commissioner in this case makes a note in the Fishery Settlement Register on 27-2-52 in the following words: "Settled direct by Govt. with the Sualkuchi Fishermen Association, Ltd at Rs. 23,100/- for the year 1952-53 vide their memo No. R. F. 106/51/12 dated 12th February, 1952. Sd/- J.K. Datta, A. D. C., Kamrup. 27-2-52." 2. Mr. Choudhuri for the appellant has contended that the Government have no right to make a direct settlement of any fishery and the Deputy Commissioner or the Additional Deputy Commissioner in this case ought not to have carried out Government's order to that extent and made a note in the Fishery Settlement Register as quoted above which will prejudice the petitioner in the matter of getting a settlement for which he had applied. In the present appeal before me, the Government's order directing settlement of the Fishery is not directly challenged--nor is the Government made a party. All that is challenged is the order of the Additional Deputy Commissioner made on 27-2-52. That order by itself, if it is an order at all, in my opinion, does not amount to an order directing settlement or refusal to make a settlement with any of the parties. It is only a note in the remarks column of the Fishery Register showing that the Deputy Commissioner has had no chance of exercising his own discretion in the matter of settlement of the fishery the Government having already made the settlement by an order of 7-1-1952 which runs as follows: "Government are pleased to settle the Brahmaputra Fishery No. IIIA in the Gauhati Sub-Division with the Sualkuchi Fishermen Association Ltd., at an annual revenue of Rs. 23,100/-(Rupees twenty three thousand one hundred) for the year 1952-53. Other applications are rejected. Sd/- A. Bhattacharjee, Secretary to the Government of Assam, Revenue Department. I find nothing untrue or illegal in the note made by the Additional Deputy Commissioner on 27-2-52 nor do I construe it as an order directing settlement under Chapter 10. The appellant, if at all, is aggrieved by the Government's order dated 7-1-52 against which no appeal is preferred nor the fact of settlement in pursuance of the Government's order challenged in a proper way. 3. There was a petition in this connexion under Article 226 of the Constitution of India before me, but there also, no case definitely is sought to be made out against the Government nor an allegation made that the Government acted without jurisdiction in the matter nor was the Government made a party to that petition. 4. In my opinion, the settlement was in pursuance of the Government's order and that order not having been sought to be set aside nor challenged I see no reason to express any opinion as to whether the Government have a right of direct settlement of a fishery or not. 5. The result is that the appeal fails and the records should go to the Lower Court immediately. Mr. D.N. Medhi, Government Advocate sought my permission to be given leave to appear in this appeal but the Government not having been made a party, I did not think it necessary to give him leave to appear in this matter. 6. There have been mutual allegations by the appellant and respondent 1 that the possession has been interfered with with regard to the fishery in spite of there being an order from this Court that none of the parties should exercise acts of possession pending the hearing of the appeal. It is, however, a matter in which it is not possible to come to a finding without an enquiry but in view of the fact that I am going to dispose of the appeal today I direct that the applications should go down to the Deputy Commissioner for making such enquiries as he might consider proper and for placing it before this Court in case he finds that there was any illegal possession affecting this Court's order by any of the parties. 7. The appeal is dismissed and the stay order vacated.

Author: Deka

Bhogiram Namasudra vs Sondhan Das And Ors. on 1 May, 1952

Gauhati High Court

PETITIONER: SMT. AZRA FATIMA Vs. RESPONDENT: UNION OF INDIA AND OTHERS DATE OF JUDGMENT12/07/1990 BENCH: KASLIWAL, N.M. (J) BENCH: KASLIWAL, N.M. (J) RAY, B.C. (J) CITATION: 1990 AIR 1763 1990 SCR (3) 268 1990 SCC (1) 76 JT 1990 (3) 156 1990 SCALE (2)8 ACT: Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988: Section 3(1), 3(3) and 10(1)--Detention-Communication of grounds--Principle of five days and fifteen days-Inapplicable in respect of declara- tion. HEADNOTE: The petitioner filed a writ petition in the High Court challenging the detention of her husband, Syed Ali Raza Shafiq Mohammed, under section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Sub- stances Act, 1988. The detenu was then already in jail as he was involved in a case under the Act, and his bail applica- tion in that case had been rejected. 3"he Division Bench of the High Court dismissed the writ petition. Before this Court in the Special Leave Petition it was inter-alia contended on behalf of the detenu that: (i) the mere possibility of the detenu's release on bail was not enough for preventive detention unless there was material to justify the apprehension that his detention would be neces- sary in order to prevent him from engaging in illicit traf- ficking in narcotic drugs and psychotropic substances, in case of his release on bail; (ii) the detention orders of Rai Chand Shah and Jai Lal Vora, who were arrested and detained in the same raid, having been struck down by the High Court on the ground that the medical report in respect of the injuries sustained by Rai Chand Shah was placed in a truncated form before the detaining authority, the detention order of the detenu should also be set aside as it suffered from the same vice; (iii) though the declaration was issued under Sec. 10(1) of the Act on 20.1.1989 but the same was served on the detenu on 10.2.1989 after an unexplained delay of 21 days; and (iv) there was in an inordinate and unex- plained delay in considering the representations made by the detenu. On the other hand, it was contended on behalf of the respondents that: (i) it would depend on the facts and circumstances of each case whether a detention order was to be passed or not in case of a person who was already in custody; (ii) the detaining authority could take into ac- count the nature of the antecedent activities of the detenu in order to 269 arrive at the conclusion that it was likely that after his release from custody he would indulge in criminal activities and it was necessary to detain him in order to prevent him from engaging in such activities; and (iii) in the present case there was complete awareness in the mind of the detain- ing authority that if he was released on bail he was likely to indulge in the criminal activities. Dismissing the special leave petition, this Court, HELD: (1) The material placed before the detaining authority and the facts mentioned in the grounds of deten- tion clearly go to show that the detaining authority was fully aware that the bail application filed by the detenu had been rejected. The detaining authority was also con- scious of the fact that the two other detenus who were arrested and detained in the same raid had already been released on bail. [277B-C] (2) The antecedents of the detenu which were clear from his own statement went to show that he was initiated in drug trafficking in 1984 and employed as a delivery hay on Rs.30 per day and within a short span of four years had himself started buying and selling Narcotic Drugs and amassed huge movable and immovable properties in Bombay. In the present raid itself hereoin and Mandrax tablets worth Rs. 1,13,42,000 were seized from the ownership and possession of the detenu. [277C-D] (3) The detaining authority after taking into consider- ation the material placed before him, arrived at the conclu- sion that the detenu being in judicial custody may under the normal law of the land he granted bail and be in a position to continue to pursue his nefarious activities- [277E] (4) The detaining authority in these circumstances considered it necessary to invoke the law of preventive detention under the Act to prevent the detenu from indulging in prejudicial activities in future. In these circumstances, it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody- [277F] (5) The facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention in the case of a detenu who is already in jail. [273G] N. Meera Rani v. Government of Tamil Nadu, JT (1989) 3 SCR 270 478; Dharmendra Sugan Chand Chelwat v. Union of India, [1990] 1 SCC 746; Sanjeev Kumar Aggarwal Union of India, JT (1990) 2 SCC 62; Smt. Shashi Aggarwal v. State of U.P., JT (1988) 1 SC 88 and Ramesh Yadav v. District Magistrate, Etah, [1985] 4 SCC 232, referred to. (6) A perusal of the orders of the High Court quashing the detention orders of Rai Chand Shah and Jai Lal Vora shows that the basis for the detention orders were their confessional statements. The High Court in this regard had observed that the confessional statement of Rai Chand Shah--which also formed integral and vital part of the grounds of detention of Jai Lal Vora--being product of threats and injuries sustained by him and further his medi- cal report having been placed in truncated form before the detaining authority, their detention became invalid. But, so far as the case of the present detenu is concerned, his detention was based on entirely distinct and separate mate- rials including his own confessional statements. The basis of the grounds of detention of the present detenu is not rounded on the truncated form of medical report of injuries sustained by Rai Chand Shah. Thus the present detenu cannot take advantage of any orders passed by the High Court de- claring detention orders of Rai Chand Shah and Jai Lal Vora as illegal. [278A-E] (7) So far as the provision of Sub-Sec. (3) of Sec. 3 of the Act is concerned, it clearly provides that for the purposes of clause (5) of Art. 22 of the Constitution, the communication to a person detained in pursuance of a deten- tion order of the grounds on which the order has been made shah be made as soon as may he after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention. This provision thus relates to the communication 01' the grounds of detention. [279B-C] (8) The principle of five days and fifteen days as provided in Sub-section (3) of Section 3 of the Act relating to communication of grounds of detention cannot be applied in respect of declaration issued under Sec. 10(1) of the Act. [280F] (9) There is no force in the contention that there was an inordinate delay in considering the representations submitted by the detenu. The High Court has given adequate and detailed reasons in holding that the delay has been explained by the counter affidavit filed by the respondents. [281A-B] 271 JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Special Leave Petition (Criminal) No. 2531 of 1989. From the Judgment and Order dated 29.9. 1989 of the Bombay High Court in Criminal Writ Petition No. 87 of 1989. U.R. Lalit and Mukul Mudgal for the Petitioner. Ashok H. Desai, Solicitor General, Ashok Srivastava and Ms. Sushma Suri for the Respondents. The Judgment of the Court was delivered by KASLIWAL, J- This special leave Petition is directed against the Judgment of the Bombay High Court dated 29th September, 1989 dismissing Criminal Writ Petition No. 87 of 1989. Syed Ali Raza Shafiq Mohammed was detained by an order of detention passed under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Sub- stances Act, 1988 (hereinafter referred to as the Act) dated 19.12.88 by the Secretary (II) to the Government of Maha- rashtra, Home Department. The detention order and the grounds of detention were given to the detenu on 20th Decem- ber, 1988. It may be mentioned that on 19.12.88 the detenu was already in jail as his bail application had been reject- ed. The wife of the detenu filed a writ petition before the Bombay High Court challenging the detention of her husband Syed Ali Raza Shafiq Mohammed. The Division Bench of the High Court dismissed the writ petition by order dated 29th September, 1989. The wife of the detenu has now filed the present Special Leave Petition aggrieved against the Judg- ment of the Bombay High Court. Learned counsel for the petitioner raised the following submissions before us: (1) There were no prospects of the detenu being enlarged on bail as he was involved in a case under the Act where the offence was punishable with minimum sentence of ten years. The bail application filed on behalf of the detenu was rejected by the Metropolitan Magistrate and the detenu had not filed any application for bail either in the Sessions Court or in the High Court. (2) That detention orders of Rai Chand Shah and Jai Lal Vora had already been struck down by the High Court on the 272 ground that the medical report in respect of the injury sustained by Rai Chand Shah was placed in a truncated form before the detaining authority. The detention order of the present detenu also suffers from the same vice and as such his order of detention should also be set aside. (3) That a declaration was issued under Sec. 10 (1) of the Act on 20th January, 1989 and the said declaration was served on the detenu after an unexplained delay of 21 days. (4) The detenu submitted a representation on 31.1.89 which was jointly addressed to the Government of Maharashtra and the Government of India and the Hon'ble Advisory Board for revocation of the impugned order of detention. The State Government rejected the representation by its reply dated 21.2.89 and the Central Government by its reply dated 3.3.89. Thus there was an inordinate and unexplained delay in considering the said representations of the detenu and this violated the right of the detenu under Art. 22(5) of the Constitution of India. The order of detention is illegal on this count also. We shall deal with the above contentions seriatem. With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be neces- sary in order to prevent him from engaging in illicit traf- fic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the de- taining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibil- ity of his being released on bail in a serious offence under the Act. Reliance in support of the above contention was placed on recent decisions of this Court in N. Meera Rani v. Government of Tamil Nadu & Anr., JT 1989 (3) SC 478 and Dharmendra Sugan Chand Chelwat. v. Union of India & Ors., [1990] 1 SCC 746. On the other hand Learned,Solicitor General contended that it would depend on the facts and circumstances of each case whether a detention order is to be passed or not in case of a person who was already in custody. An order of detention can be validly passed against a person in custody where the detaining authority was already aware of such facts and it is satisfied that the detenu is likely to be released from custody in the near future. The detaining authority can take into account the nature of the antecedent activities of the detenu in order to arrive to the conclu- sion that it is likely mat after his release from custody he 'would indulge in criminal activities and it was necessary to detain him in order to prevent him from engaging in such activities in the present case there was complete awareness in the mind of the detaining authority about the detenu being in custody and that if he is released on bail he is likely to indulge in the criminal activities. The detaining authority was not only aware that the detenu was in jail but also noted the circumstances on the basis of which he was satisfied that the detenu was likely to come out on bail and continue to engage himself in the criminal activities. It was submitted that the High Court has considered this aspect of the case and has given detailed reasons for upholding the order of detention and there is no ground or justification for interfering in the order of the High Court. Reliance in support of the above contention was placed on San jeer Kumar Aggarwal v. Union of India & Ors., JT [1990] 2 SC 62. We have given our thoughtful consideration to the argu- ments advanced by Learned counsel for the parties on the above point. The latest decision of this Court on the above point is Sanjeev Kumar Aggarwal v. Union of India & Ors., (supra) decided on 4th April, 1990 in which all the earlier cases decided by this Court have been considered including the-cases of N. Meera Rani v. Dharmendra Sugan Chand Chelwat (supra) on which reliance has been placed by the Learned counsel for the petitioner. It was observed in Sanjeev Kumar Aggarwal's case that no decision of this court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circum- stances. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of con- sidering the order of detention in the case of a detenu who is already in jail. The counsel for the detenu in the above case strongly relied on Smt. Shashi Aggarwal v. State of U.P. & Ors., JT [1988] 1 SC 88 and Ramesh Yadav v. District Magistrate, Etah & Ors., [1985] 4 SCC 232 and contended that the bail application could be opposed if moved or if en- larged the same can be questioned in a higher court and on that ground the detention order should be held to be 274 invalid. The Court negatived the above contention by observ- ing that in N. Meera Rani's case a Bench of three Judges noted the above observations in Smt. Shashi Aggarwal's case and Ramesh Yadav's case and it was said that they were made on the facts of those particular cases. The Court further held in the above case that on the material relied upon by the detaining authority it could not be said that there was no awareness in the mind of the detaining authority about the detenu being in custody and that if he is released on bail he is likely to indulge in the prejudicial activities. If we examine the facts of the case before us as stated in the grounds of detention it would be clear that on the basis of specific information officers of the Narcotics Control Bureau, Bombay searched room No. G-2, Purab Paschim Apartments, Gilbert Hill Road, Munshi Nagar, Andheri (West), Bombay-58 and recovered 56 Kgs. 650 gms. of Heroin (33 Kgs. 150 gms. white and 23 kgs. 500 gms. brown) and 4000 Mandrax Tablets (Methaeualone) totally valued at Rs. 1, 13,42000 on 21.10.88. One Mr. Syed Asgar Ali was found in the room. During the course of the search another person named Abdul Sattar Abdul Samad came on Motorcycle No. BLC 7768 Make Hero Honda and entered into the premises. Thereafter, two more persons came into the premises who gave their names as Ali Raza Shafiq Mohamed (detenu in the present case) and Thakur Singh. The Officers also searched and seized a Bajaj Scooter MAQ 169, the Motorcycle No. BLC 7768 and Fiat Car No. MMH 4348 which were parked in the compound of the said society. According to the present detenu the said three vehicles belonging to him were used for transportation of Narcotic Drugs. Telephone No. 6288769 was found installed in the prem- ises. It was subscribed by one Shirish Parikh K. 18 Azad Nagar Society, Juhu Scheme, Road No. 7, Bombay-56. The detenu disclosed that he was living in Flat No. 15, 4th Floor, Chandra Co-op. Housing Society Ltd. Dawood Baug, Andheri, Bombay-58, which was also searched on 21.10.88 but nothing incriminating was found in the flat. Telephone No. 6284105 was found installed there, which is subscribed by the detenu. The detenu also disclosed that he was having two shops (i) M/s Ali Decorators, G-I, Parag Niketan, 10th Road, Juhu, Bombay400 049 (ii) M/s Ali Decorators, Shop No. 9, A- Wing, Twin Tower, Lokhandwala Complex, Andheri (West), Bombay-58 both of which were searched on 21.10.88 and some documents were seized from the former shop. Nothing was seized from the 2nd shop. The statements of the detenu were recorded on 21.10.88, 22.10.88 and 7.11.88 under Section 67 of the NDPS Act, 1985. With regard to the statement given by the detenu on 21.10.88 it was mentioned as under in the grounds of detention. "In your statement of 21.10.88 you inter-alia, stated that you have a business of Video Libraries and Marriage decora- tions; that you own the property and vehicles mentioned above; that you were initiated into drug trafficking some time in 1984 by one Anwar, owner of Anwar Star Petrol Pump Crawford Market, that in the beginning you were employed as a delivery boy on a compensation of Rs.30 per day; that you used to deliver Heroin to customers on the road side; that after sometime you started procuring Heroin from Pathans and repacking it in small packets and you used to store it in public toilets with the help of Municipal Sweepers and sell the same: that you used to buy heroin for Rs. 16,000 to 20,000 and sell it for RS. 18,000 to 25,000 per K.g. that you were making a profit of Rs.4,000 to 5,000 that your main selling points were Colaba and Nariman Point; that there were a number of brokers hovering around the above places who contact the customers; that you gave samples to brokers who showed them to the customers; that if a sample was approved and the price agreeable, then you used to ask the purchaser to meet you at some point in Juhu or Andheri or some other places, that you used to pick up the required quantity of Heroin and deliver it to the customer and col- lect the money; that initially you were storing the Heroin in your flat and later on you used to store it in the said room No. G/2, Purab Aur Paschim Apartments, Gilbert Hill Road, Andheri (W), Bombay-58. As regards the source of the Heroin and Mandrax tablets you stated that you acquired 29 kgs. of white Hereoin in instalment from one Mangal Pandey of Banaras and the remaining white hereoin from one Raichand Chandmal Shah, that 25 kgs. of Brown Heroin was purchased from one Asgar of Phulgalli, Bhendi Bazar who has since died; that you did not know the address of Mangal Pandey, that you purchased the Heroin on credit; that over the last about 31/2 years you must have sold 300 kgs. of Heroin that all the movable and immovable property acquired by you has been purchased from the profits from drug trafficking; that your income from legal business 276 of Video library and decoration is about Rs.2,000 per month." The statement recorded on 22.10.88 as mentioned in the grounds of detention is reproduced as under: "In your next statement of 22.10.88 you stated that because you had to make 3-4 trips to your native place and that was the reason why such a large quantity of heroin was lying with you; that you were keeping one car and two wheeler because you required them for transporting/selling of Man- drax tablets and it is advisable to use different vehicles in this business; you further stated that Abdul Sattar and your brother Syed Asghar Ali were not involved in this business and that they did not know that you are dealing in heroin; they were present in the room where heroin was seized on 21.10.88; because you had sent them to supervise masonry work" The detaining authority further made the following observations in the grounds of detention: "You were arrested on 22.10.88 and produced before the Additional Chief Metropolitan Magistrate (Holiday Court) on 23.10.88 who remanded you to Judicial Custody till 4.11.88 which was extended from time to time. You also filed appli- cation for bail on 21.11.88 which was rejected by the AddI. Chief Metropolitan Magistrate, 8th Court, Bombay. It may be further important. to note that in the grounds of detention the detaining authority had noted that the other detenus Shri Raichand Shah and Sh. Jailal Keshavlal Vora were already released on bail on 18.11.88 on furnishing a bail for an amount of Rs. 1,50,000 each in cash. After taking note of all the above circumstances the detaining authority made the following observations in respect of the detenu having a likelihood of being released on bail: "It is clear that there is a ring of traffickers in heroin and Mandrax tablets in Bombay and you are a part of the ring and you have been habitually engaging yourself in posses- sion, sale, purchase, transportation and storage of narcotic drugs and Psychotropic substances. 1 am aware that you 277 are still in judicial custody but I am also aware that under the normal law of the land you may be granted bail and be in a position to continue to pursue your nefarious activities. I, therefore, consider it necessary to invoke the law of preventive detention and detain you under the PIINDPS Act, 1988 to prevent you from indulging in such prejudicial activities in future." Thus the material placed before the detaining authority and the facts mentioned in the grounds of detention clearly go to show that the detaining authority was fully aware that the bail application filed by the detenu had been rejected by the Additional Chief Metropolitan Magistrate 8th Court, Bombay- The detaining authority was also conscious of the fact that the two other detenus who were arrested and de- tained in the same raid had already been released on bail. The antecedents of the detenu which were clear from his own statement went to show that he was initiated in drug traf- ficking in 1984 and employed as a delivery boy on Rs.30 per day Within a short span of four years the detenu himself started buying and selling Narcotic Drugs and amassed huge movable and immovable properties in Bombay. In the present raid itself heroin and Mandrax tablets worth Rs. 1, 13,42000 were seized from the ownership and possession of the detenu. Not only that the detenu was using three vehicles for trans- portation of these Narcotic drugs. The detaining authority after taking into consideration the above materials placed before him, arrived to the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it necessary to invoke the law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody It was next contended on behalf of the petitioner that the detention orders of Rai Chand Chandmal Shah and Jai lal Keshavlal Vora had already been struck down by the High Court on the ground that the medical report in respect of the injury sustained by Rai Chand Shah was placed in a truncated form before the detaining authority. It was thus argued that the detention order of the present detenu also suffers from the same vice and as such his order of deten- tion should also be set aside. We see no force in this' contention. We have perused the orders of the High Court quashing the detention orders of Rai Chand Shah and Jai Lal Vora. A perusal of the orders of the High Court shows that the basis for the detention orders of Rai Chand Shah and Jai Lal Vora were their confessional statements. It was alleged before the High Court that Rai Chand Shah was given a severe beating on account of which he sustained serious injuries and as such his alleged confes- sional statement should not have been made a ground of detention. The High Court in this regard observed that the confessional statement of Rai Chand Shah being product of threats and injuries sustained by him and his medical report having been placed in truncated form before the detaining authority, the certificate showing injuries in detail not having been placed before the detaining authority by the sponsoring authority, the detention became invalid. Now so far as Jai Lal Keshav Lal Vora is concerned the High Court took the view that the statements of Rai Chand Shah formed integral and vital part of the grounds of detention of Jai Lal Vora and if such important and vital part of the materi- al is obliterated and excluded it is not possible to say that the remaining material is ample and more than suffi- cient to justify the detention of Jai Lal K. Vora. The detention order of Jai Lal K. Vora was also declared ille- gal. Now so far as the case of the present detenu Syed Ali Raza Shafiq Mohd. is concerned as already mentioned above his detention is based on entirely distinct and separate materials including his own confessional statements. The basis of the grounds of detention of the present detenu is not rounded on the truncated form of medical report of injuries sustained by Rai Chand Shah. At the most it can be considered as a supplementary kind of material for the detention order of the present detenu. Thus the present detenu cannot take advantage of any orders passed by the High Court declaring the detention orders of Rai Chand Shah and Jai Lal K. Vora as illegal. It was next contended on behalf of the petitioner that though a declaration was issued under Sec. 10(1) of the Act on 20th January, 1989 but the same was served on the detenu on 10.2.89 after an unexplained delay of 21 days. It was vehemently contended on behalf of the detenu that the detenu ought to have been served with the declaration as soon as may be after the issue of such declaration, but ordinarily not later than 5 days and in case it was not done within five days then reasons ought to have been recorded in writ- ing for explaining the delay and that also could not have been later than 15 days in any case. Learned Counsel in this regard submitted that under clause (5) of Art. 22 of the Constitution a right is guaranteed to the detenu to afford an earliest opportunity of making a representation against the order of 279 detention. It was contended that when the liberty of a citizen is taken away he ought to be afforded an opportunity of making representation at the earliest and the provisions contained in Sub-Sec. (3) of Sec. 3 of the Act should in terms also apply in the case of communicating the declara- tion issued under Sec. 10(1) of the Act. We see no force in the above contention. So far as the provision of Sub-Sec. (3) of Sec. 3 of the Act is concerned it clearly provides that for the purposes of clause (5) of Art. 22 of the Constitution, the communication to a person detained in persuance of a detention order of the grounds on which the order has been made shah be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention. This provision thus relates to the commu- nication of the grounds of detention. In the case before us the grounds of detention were admittedly communicated on 20th December, 1988, while the detention order was of 19.12.88- Thus there is full compliance of the above provi- sion and the order of detention cannot be challenged on this ground. Now so far as the guarantee under Clause (5) of Art. 22 of the Constitution is concerned there can be no manner of doubt that the person detained under any law of preven- tive detention ought to be communicated the grounds on which the order has been made so as to afford him the earliest opportunity of making a representation against the order. The detenu was served with the grounds of detention on 20th December, 1988 and the detenu had full and ample opportunity to make a representation against the detention order. Sub- Sec. (1) of Sec. 10 of the Act reads as under: "Notwithstanding anything contained in this Act, any person (including a foreigner) in respect of whom an order of detention is made under this Act at any time before the 31st day of July, 1990, may be detained without obtaining, in accordance with the provisions of sub-clause (a) of clause (4) of Art. 22 of the Constitution, the opinion of an Advi- sory Board for a period longer than three months but not exceeding six months from the date of his detention, where the order of detention has been made against such person with a view to preventing him from engaging in illicit traffic in narcotic drugs and psychotropic substances, and the Central Government or any officer of the Central Govern- ment, not below the rank of an Additional Secretary to that Government, specially empowered for the 280 purposes of this section by that Government, specially empowered for the purposes of this section by that Govern- ment, is satisfied that such person engages or is likely to engage in illicit traffic in narcotic drugs and psychotropic substances into, out of, through or within any area highly vulnerable to such illicit traffic and makes a declaration to that effect within five weeks of the detention of such person." In the counter affidavit filed before this Court it has been stated in para (L) as under: "Regarding the declaration, it may be stated that the same was dispatched by the Ministry of Finance on 20.1.1989 to the Home Secretary, Government of Maharashtra, Bombay, Maharashtra Government forwarded it to NCB, Bombay which was received in the NCS office on 1.2.89 from the State Govern- ment. It was then sent for translation, 4th and 5th Febru- ary, being holidays (being Saturday and Sunday) the declara- tion was dispatched on 6.2.89. It was received by the Jail authorities on 10.2.1989 and served on the detenu same day." Thus the declaration had been made in this case on 20.1.89 by the Ministry of Finance within the statutory period of five weeks of the detention and the period taken in serving the same on the detenu on 10.2.89 has been sufficiently explained. The detenu was lodged in Central Prison Bombay and the Advisory Board had fixed a date on 23.2.89 and as such the detenu had ample opportunity to challenge the declaration. The High Court has also gone in detail in dealing with this aspect of the matter, and we agree with the finding recorded by the High Court. The principle of five days and fifteen days as provided in Sub-Section (3) of Section 3 relating to communication of grounds of detention cannot be applied in respect of declaration issued under Sec. 10(1) of the Act. In the facts and circumstances of this case we are fully satisfied that the detenu has not been denied any opportunity of making any effective repre- sentation against the declaration issued under Sec. 10(1) of the Act. The last submission made on behalf of the detenu is that the detenu had submitted a representation on 31.1.89 jointly addressed to the Government of Maharashtra, the Government of India and the Advisory Board. The State Government re- jected the representation 281 by its reply dated 21.2.89 and the Central Government by its reply dated 3.3.89. It was thus contended that there was an inordinate and unexplained delay in considering the said representations and this is violative of the right of the detenu conferred under Clause (5) of Art. 22 of the Consti- tution- The point should not detain us any longer as we fully agree with the finding of the High Court, recorded in this regard. The High Court has given adequate and detailed reasons in holding that the delay has been explained by the counter affidavit filed by the respondents. Thus we find no force in this ground of the detenu that his representations were disposed of after an inordinate and unexplained delay. As a result of the above discussion, we find no force in this petition and it is accordingly dismissed. Petition dismissed. R.S.S.

Author: N Kasliwal

Smt. Azra Fatima vs Union Of India And Others on 12 July, 1990

Supreme Court of India

IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.686 of 2010 M/S G.K.COKE INDUSTRIES Versus THE COAL INDIA LTD.& ORS ----------- 3. 20.06.2011 Mr. Raj Kishore Prasad for the appellant, and Mr. V.M.K. Sinha for the respondents, are present. This appeal shall be heard along with LPA No. 378 of 2009. Admit. Since the respondents have appeared, there is no need to issue notice to them. ( S. K. Katriar, J.) kanchan (Amaresh Kumar Lal, J.)

M/S G.K.Coke Industries vs The Coal India Ltd.& Ors on 20 June, 2011

Patna High Court - Orders

Court No. - 3 Case :- CONTEMPT No. - 816 of 2009 Petitioner :- Smt. Neelam Singh Respondent :- Krishna Mohan Tripathi Petitioner Counsel :- S.P. Singh Respondent Counsel :- C.S.C. Hon'ble Shri Narayan Shukla,J. One week's time as prayed by learned counsel for the petitioner is allowed to file the rejoinder affidaVit.List thereafter. Order Date :- 12.7.2010 Banswar

Smt. Neelam Singh vs Krishna Mohan Tripathi on 12 July, 2010

Allahabad High Court

IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No. 12 of 2009 with W.P.(C) No. 6495 of 2010 with W.P.(C) No. 1475 of 2011 with W.P.(C) No. 1549 of 2009 with W.P.(C) No. 4839 of 2009 with W.P.(C) No. 6350 of 2010 with W.P.(C) No. 6548 of 2010 with W.P.(C) No. 6427 of 2010 with W.P.(C) No. 6448 of 2010 with W.P.(C) No. 6449 of 2010 with W.P.(C) No. 3872 of 2010 --- Charku Singh Munda (WPC 12/2009) Binod Bihari Kumar (WPC 6495/2010) Kosto Gorai and another (WPC 1475/2010) Gorachand Kuiry and others (WPC 1549/2009) Ashoke Sen (WPC 4839/2009) Parameshwar Mahato and others (WPC 6350/2010) Navin Chandra Mahato (WPC 6548/2010) Lil Mohan Mahato and others (WPC 6427/2010) Shiv Charan Mahato (WPC 6448/2010) Sukdeb Mahato (WPC 6449/2010) Dukhu Ram Mahato (WPC 3872/2010) Petitioners Versus The State of Jharkhand through the Secretary, Department of Water Resources, Govt. of Jharkhand & others (in all the cases) Respondents --- CORAM: The Hon'ble Mr. Justice R.K. Merathia --- For the Petitioners: Mr. Jagannath Mahato, Advocate For the Respondents: Mr. S. Choudhary, SC (L&C) and Mr. S. Akhtar, SC (Mines) --- 9.11.04.2011 Mr. Jagannath Mahato, learned counsel appearing for the petitioners in all the cases, submitted that the petitioners have not been given all the benefits under rehabilitation scheme fully. 2. On the other hand, counsel for the State, submitted that in the absence of counter-affidavit, they are not in a position to either accept or controvert the statements made in the writ petition. They further submitted that it is not known whether petitioners' claim are genuine or not and that, in some cases, some amount has been paid. They also submitted that if there is any objection, the objectors are to be given opportunity of hearing. 3. In the circumstances, petitioners are given liberty to file fresh representation individually before the concerned authority. If the claims / part of it are found genuine on due verification and after hearing the concerned parties, if any, the same should be provided to them. If the claims / part of it are not found genuine, the same should be rejected and the reasons thereof should be communicated to the petitioners. It goes without saying that if any further amount is found payable in any case, the amount already paid, if any, will be adjusted. This exercise should be completed as early as possible and preferably within three months from the date of receipt of such representations. It is made clear that this court has not gone into the merits of the claims of the petitioners. With these observations and directions, these writ petitions stand disposed of. As prayed, let a copy of this order be given to the counsel for the State. (R.K. Merathia, J) Ranjeet/

Binod Bihari Kumar vs State Of Jharkhand & Ors. on 11 April, 2011

Jharkhand High Court