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65b9697dab84c7eca86e90ca | acts |
State of Bihar - Act
----------------------
Bihar Staff Selection Commission Act, 2002
--------------------------------------------
BIHAR
India
Bihar Staff Selection Commission Act, 2002
============================================
Act 7 of 2002
---------------
* Published on 1 January 2002
* Commenced on 1 January 2002
Bihar Staff Selection Commission Act, 2002
(Bihar Act
No. 7 of 2002
)
Last Updated 10th February, 2020
An act for Constitution of Bihar Staff-Selection Commission For Bringing Uniformity In Selection Procedure of Candidates For Technical and Non-technical Class III Posts Under the Administrative Control of the Government of Bihar.
Preamble. - Whereas, the Number of Both the Competitive Examinations and Candidates has increased to a Large Scale and Consequently the Responsibilities of Bihar Public Service Commission Have Increased Manifold and It Has Thus Become Necessary to Constitute A Separate Commission For This Purpose to Relieve the Bihar Public Service Commission From The Responsibility of Selection of Candidates For the Class III Services/posts.
And, Whereas, it has been recommended by the fitment committee in its report under paragraph 7.3.13 (d) , chapter-7 (Volume IV, Book 2) to consider the possibility of constitution of a Commission like Staff Selection Commission;
And, Whereas, under these circumstances it is expedient to enact an Act for the purpose of constitution of Bihar Staff Selection Commission to bring uniformity in selection-process of suitable candidates for appointment to Class HI posts.
Now, Therefore, be it enacted by the Legislature of State of Bihar in the fifty-third year of the Republic of India as follows : -
### 1. Short title, extent and commencement.
(1) This Act may be called the Bihar Staff Selection Commission Act, 2002.
(2) It shall extend to the whole of the State of Bihar.
(3) It shall come into force at once.
### 2. Definitions.
- In this Act, unless there is any thing repugnant to the subject or context, -
(a) "Act" means Bihar Staff Selection Commission Act, 2002;
(b) "State Government" means the Government of Bihar;
(c) "Commission" means the Bihar Staff Selection Commission constituted under section-3 of the Act;
(d) "Chairman" means the chairman of the Bihar Staff Selection Commission;
(e) "Member" means the member of the Bihar Staff Selection Commission;
(f) "Rules" means the Rules framed under this Act.
### 3. [ Constitution of Commission.
[Substituted by Bihar Staff Selection Commission (Amendment) Act, 2007 (Act No. 26 of 2007), section 2.]
(1) The Bihar Staff Selection Commission shall be constituted consisting of a Chairman and two Members.
(2) Appointment of the Chairman and other Members of the Commission shall be made by the State Government:
Provided that the Chairman and other Members of the Commission shall be such persons who, on the dates of their appointments, have held office for at least ten years under the State Government.
(3) If the office of the Chairman of the Commission becomes vacant or if the Chairman is, by reason of absence or for any other reason, unable to perform the duties of his office, those duties shall, until some person appointed under clause (2) to the vacant office has entered on the duties thereof or, as the case may be, until the Chairman has resumed his duties, be performed by such one of the other members of the Commission as the State Government may appoint for the purpose.]
### 4. [ Term of office, removal and service conditions of the Chairman and members of the Commission.
[Substituted by Bihar Staff Selection Commission (Amendment) Act, 2007 (Act No. 26 of 2007), section 3.]
(1) Term of the Chairman and the members of the Commission shall be of five years with effect from the Hate of appointment or until he attains the age of sixty five years, whichever is earlier :
Provided that -
(a) the Chairman and a Member of the Commission may resign his office during his term;
(b) the Chairman and a Member of the Commission may be removed from his office, if he -
(i) is adjudged an insolvent, or
(ii) engages during his term of office in any paid employment outside the duties of his office, or
(iii) is in the opinion of the State Government, unfit to continue in office due to any reason.
(2) The conditions of service of the Chairman and Members of the Commission shall be determined after framing regulation under the powers conferred by sub-section (1) of section-12 of the Act.]
### 5. Services/Cadres/Posts for which the Commission may recommend for appointment.
- The Commission may recommend for appointments for all general/technical / non-technical services/cadres/ posts under the State Government and field officers having pay scales less than Rs. 6500-10,500 (or corresponding scale as revised from time to time) and as provided in the Rules.
[Provided that in the cases of contractual employments, adjustments of retrenched employees, compassion-ate appointments and appointments of outstanding sportsperson, the appointments may be made without obtaining the recommendation of the Commission.]
[Added by Bihar Staff Selection Commission (Amendment) Act, 2007 (Act No. 26 of 2007), section 4.]
### 6. Subordinate Officers and Employees.
- For the conduct of the business of the Commission, the strength of posts of subordinate officers and employees of the Commission and their service conditions shall be as provided in the Rules made by the State Government under this Act.
### 7. Headquarters of the Commission and Administrative Department.
- The headquarters of the Commission shall remain in Patna. The Personnel and Administrative Reforms Department shall be the administrative department of the Commission.
### 8. Selection Procedure.
- The Commission, with the prior approval of the State Government, shall formulate the procedure for selection to different services/posts.
### 9. Delegation of powers.
(1) The Chairman of the Commission shall exercise the administrative and financial powers of the Head of the Department in the State Government.
(2) The Chairman may entrust one member of the Commission the responsibilities of the Controller of the Examinations. Other member may be entrusted the responsibilities of the Administrative section.
### 10. Transfer of pending selections related to Class III posts.
- All selections for appointment to the posts, as mentioned in section-5 of the Act and not advertised till the commencement of this Act by the Bihar Public Service Commission, shall be held by the Bihar Staff Selection Commission. The selection process for the posts for which advertisement has been issued by the Bihar Public Service Commission will be completed by the Bihar Public Service Commission.
### 11. Financial Provisions.
- All expenditures to be incurred on the office of the Commission and on execution of work of the Commission shall be borne by the State Government. The Commission may receive examination fees from the candidates for holding different examinations/selections which shall be deposited in the State Treasury by the Commission.
### 12. Power to make Rules.
(1) The State Government shall have power to make Rules/Regulations for implementing the provisions of this Act.
(2) The Commission shall frame Regulations for procedure for publication of Advertisements, conduct of written examinations, publication of results, conduct of viva-voice test/personality test, if any, and other functions with the approval of State Government.
|
65ba03deab84c7eca86ea759 | acts |
State of Andhra Pradesh - Act
-------------------------------
A.P. Sri Simhachalam Varaha Lakshmi Narasimha Swamy Devasthanam Panchagramalu (Regularization of Occupations of Houses and Houses Sites) Act, 2019
----------------------------------------------------------------------------------------------------------------------------------------------------
ANDHRA PRADESH
India
A.P. Sri Simhachalam Varaha Lakshmi Narasimha Swamy Devasthanam Panchagramalu (Regularization of Occupations of Houses and Houses Sites) Act, 2019
====================================================================================================================================================
Act 12 of 2019
----------------
* Published on 1 January 2019
* Commenced on 1 January 2019
A.P. Sri Simhachalam Varaha Lakshmi Narasimha Swamy Devasthanam Panchagramalu (Regularization of Occupations of Houses and Houses Sites) Act, 2019
(Act
No.12 of 2019
)
Last Updated 10th June, 2019
An Act to regularise the occupations of occupants By Way of Houses and House Sites in the Villages of Adavivaram, Venkatapuram of Visakhapatnam (Rural) Mandal and Vepagunta, Purushottapuram and Cheemalapalli of Pendurthi Mandal called as "Panchagramalu" in Visakhapatnam District of Andhra Pradesh State Duly Compensating the Deity of Sri Simhachalamvaraha Hakshmi Narasimha Swamy Devasthanam.
Be it enacted by the Legislature of the State of Andhra Pradesh in the Seventieth year of the Republic of India as follows:
Chapter I
Preliminary
--------------------------
### 1. Short title, extent and commencement.
(1) This Act may be called the Andhra Pradesh Sri Simhachalam Varaha Lakshmi Narasimha Swamy Devasthanam Panchagramalu (Regularization of Occupations of Houses and Houses Sites) Act, 2019.
(2) It extends to the five (5) Villages Adavivaram, Venkatapuram of Visakhapatnam (Rural) and Vepagunta, Purushothapuram and Cheemalapalli of Pendurthi Mandals of Visakhapatnam District of Andhra Pradesh State.
(3) It shall come into force on such date as the Government may, by notification in the Andhra Pradesh Gazette, appoint.
### 2. Definitions.
- In this Act, unless the context otherwise requires :-
(a) "Appellate Authority" means the Commissioner of Endowments, Andhra Pradesh;
(b) "Deity" means Sri Varaha Lakshmi Narasimha Swamy, Simhachalam;
(c) "Notification" means notification published in the Andhra Pradesh Gazette and the word 'notified' shall be construed, accordingly;
(d) "Panchagramalu" means five villages viy., Adavivaram and Venkatapuram of Visakhapatnam (Rural) Mandal, Vepagunta, Purushothapuram and Cheemalapalli of Pendurthi Mandal in Visakhapatnam District;
(e) "Pre-determined Occupant" means a person whose name or his ancestor's name is recorded upto the year 2008 as occupant/enjoyer/encroacher of house or house site in any official records like Registered Sale Deed, Proceedings & Reports of Cabinet Sub-Committee, Government Orders, Records of Endowment Department/Sri Varaha Lakshmi Narasimha Swamy Devasthanam or any other such record of statutory/official nature;
(f) "Prescribed" means prescribed by rules made under this Act;
(g) "Regularization of Occupation by way of House or House Sites" means Transfer of Right on the land occupied by the occupant by way of house or house site for which the tide held with said Deity, on payment of market value as per Section 5.
Chapter II
Regularization of Pre-Determined Occupancy
----------------------------------------------------------
### 3. Regularisation of occupations of Pre-determined occupants.
(1) Any person who is a pre-determined occupant in any of the "Panchagramalu" shall be issued a certificate of occupation by the authority concerned as may be prescribed.
(2) A person who is issued a certificate of occupation shall be entitled for regularisation of his occupation.
(3) Every such person shall make an application for regularisation of his occupation to the authority as may be prescribed.
Chapter III
Procedure for Application for Regularization of Occupation and Fixation of Amount
--------------------------------------------------------------------------------------------------
### 4. Procedure for filing Application.
- The Procedure for filing application together with documents, verification, consideration & disposal of applications and payment of amount shall be such, as may be prescribed.
### 5. Fixation of rate of Regularization.
(1) Government shall notify the rates to be collected from the occupants towards regularisation of occupation taking into consideration, the recommendations of the committee consisting of the District Collector, Chairman, Joint Collector, Member and Executive Officer of Sri Simhachalam Varaha Lakshmi Narasimha Swamy Devasthanam, Member Convener constituted for the purpose.
(2) The Devasthanam shall be compensated by way of transfer of an equivalent extent of land by the Government.
Chapter IV
Filing of Appeals and Revision Petitions
--------------------------------------------------------
### 6. Appeals.
(1) Every applicant who is aggrieved with the decision taken by the Committee on his claim of occupation may prefer an appeal within 60 days from the date of decision of the Committee before the appellate authority. However, the appellate authority can condone the delay, if the authority is satisfied with the reasons furnished by the appellant for filing the appeal.
(2) The appellate authority shall dispose of the same after giving reasonable opportunity to the appellant to prove his claim and shall dispose of the same on merits within a period of 90 days from the date of appeal.
Chapter V
Miscellaneous
----------------------------
### 7. Act to override the other Laws.
- Unless otherwise expressly provided in this Act, the provisions of this Act and of any orders and rules made thereunder shall have effect,' notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of such law.
### 8. Bar of Legal Proceedings.
- No suit, prosecution or proceedings shall lie in any Court against any authority, committee or officer or person for any act done or purporting to be done under or in pursuance of the Act or the rules or orders issued thereunder.
### 9. Protection of Action taken in good faith.
- No suit, prosecution or other legal proceedings shall lie against the State Government or any person for anything which is in good faith done or intended to be done in pursuance of this Act or any rule or order made thereunder.
### 10. Punishment for Furnishing of false information.
- Any person who furnishes false information or information which has reason to believe not to be true, will be prosecuted as per the provisions of Section 177 of the Indian Penal Code, 1860 (Central Act No. 45 of 1860).
### 11. Power to remove difficulties.
- If any difficulty arises in giving effect to the provisions of this Act, the Government may make such orders not in consistent with the said provisions as appeared to them to be necessary or expedient for the purpose of removing the difficulty.
### 12. Power to make rules.
(1) The Government may, by notification in the Andhra Pradesh Gazette make rules to carry out the purpose of this Act.
(2) Every Rule made under this section shall immediately after it is made, be laid before each house of the State Legislature if it is in session, if it is not in session, in the session immediately following for a total period of 14 days which may be comprised in two session or in two successive sessions, and it before expiration of the session and which it is so laid or the sessions immediately following both Houses agree in making any modification in the rule or in the annulment of the rule, the rule shall not have effect only in such modified form or shall stand annulled as the case may be, so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.
|
65ba76d9ab84c7eca86eb797 | acts |
Union of India - Act
----------------------
Chartered Accountants Act, 1949
---------------------------------
UNION OF INDIA
India
Chartered Accountants Act, 1949
=================================
Act 38 of 1949
----------------
* Published in Gazette 38 on 1 May 1949
* Assented to on 1 May 1949
* Commenced on 1 May 1949
1. Amended by
[The Chartered Accountants (Amendment) Act, 2006 (Act 09 of 2006)
on
22 March 2006
]
2. [Amended by The Chartered Accountants (Amendment) Act, 2011 (Act 03 of 2012) on
8 January 2012
]
Chartered Accountants Act, 1949
[Act, No. 38 of 1949]
[1st May, 1949]
An Act to make provision for the regulation of the profession of chartered accountants.
WHEREAS it is expedient to make provision for the regulation of the profession of chartered accountants and for that purpose to establish an Institute of Chartered Accountants; It is hereby enacted as follows:-
### 1. Short title, extent and commencement
(1) This Act may be called the Chartered Accountants Act, 1949.
(2) It extends to the whole of India.
(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint in this behalf.
### 2. Interpretation
(1) In this Act, unless there is anything repugnant in the subject or context-
(a) "associate" means an associate member of the Institute;
(aa) "Authority" means the Appellate Authority constituted under section 22A;
(aaa) "Board" means the Quality Review Board constituted under section 28A;
(b) "chartered accountant" means a person who is a member of the Institute;
(c) "Council" means the Council of the Institute;
(ca) "firm" shall have the meaning assigned to it in section 4 of the Indian Partnership Act, 1932 (9 of 1932), and includes,—
(i) the limited liability partnership as defined in clause (n) of sub-section (1) of section 2 of the Limited Liability Partnership Act, 2008 (6 of 2009); or
(ii) the sole proprietorship, registered with the Institute;';
(d) "holder of a restricted certificate" means a person holding a permanent or temporary restricted certificate granted by a State Government under the Restricted Certificates Rules, 1932;
(e) "Institute" means the Institute of Chartered Accountants of India constituted under this Act;
(ea) "notification" means a notification published in the Official Gazette;
(A) a partnership as defined in section 4 of the Indian Partnership Act, 1932 (9 of 1932); or
(B) a limited liability partnership which has no company as its partner;
(eb) "partner" shall have the meaning assigned to it in section 4 of the Indian Partnership Act, 1932 (9 of 1932) or in clause (q) of sub-section (1) of section 2 of the Limited Liability Partnership Act, 2008 (6 of 2009), as the case may be;
(ec) "partnership" means —
(f) "prescribed" means prescribed by regulations made under this Act;
(g) "Register" means the Register of Members maintained under this Act;
(h) "registered accountant" means any person who has been enrolled on the Register of Accountants maintained by the Central Government under the Auditors' Certificates Rules, 1932;
(ha) "specified" means specified by rules made by the Central Government under this Act;
(haa) "sole proprietorship" means an individual who engages himself in the practice of accountancy or offers to perform services referred to in clauses (ii) to (iv) of sub-section (2);
(hb) "Tribunal" means a Tribunal established under sub-section (1) of section 10B;
(i) "year" means the period commencing on the lst day of April of any year and ending on the 31st day of March of the succeeding year.
(2) A member of the Institute shall be deemed, "to be in practice ",when individually or in partnership with chartered accountants in practice or in partnership with members of such other recognised professions as may be prescribed, he, in consideration of remuneration received or to be received-
(i) engages himself in the practice of accountancy; or
(ii) offers to perform or performs services involving the auditing or verification of financial transactions, books, accounts, or records or the preparation, verification or certification of financial accounting and related statements or holds himself out to the public as an accountant; or
(iii) renders professional services or assistance in or about matters of principle or detail relating to accounting procedure or the recording, presentation or certification of financial facts or data; or
(iv) renders such other services as, in the opinion of the Council, are or may be rendered by a chartered accountant in practice; and the words "to be in practice" with their grammatical variations and cognate expressions shall be construed accordingly.
Explanation: An associate or a fellow of the Institute who is a salaried employee of a chartered accountant in practice or a firm of such chartered accountants or firm consisting of one or more chartered accountants and members of any other professional body having prescribed qualifications shall, notwithstanding such employment, be deemed to be in practice for the limited purpose of the training of articled assistants.
### 3. Incorporation of the Institute
(1) All persons whose names are entered in the Register at the commencement of this Act and all persons who may hereafter have their names entered in the Register under the provisions of this Act, so long as they continue to have their names borne on the said Register, are hereby constituted a body corporate by the name of the Institute of Chartered Accountants of India, and all such persons shall be known as members of the Institute.
(2) The Institute shall have perpetual succession and a common seal and shall have power to acquire, hold and dispose of property, both movable and immovable, and shall by its name sue or be sued.
### 4. Entry of names in the Register
(1) Any of the following persons shall be entitled to have his name entered in the Register, namely,-
(i) any person who is a registered accountant or a holder of a restricted certificate at the commencement of this Act;
(ii) any person who has passed such examination and completed such training as may be prescribed for members of the Institute;
(iii) any person who has passed the examination for the government diploma in accountancy or an examination recognized as equivalent thereto by the rules for the award of the government diploma in accountancy before the commencement of this Act, and who, although not duly qualified to be registered as an accountant under the Auditors' Certificates Rules, 1932, fulfils such conditions as the Central Government may specify in this behalf;
(iv) any person who, at the commencement of this Act, is engaged in the practice of accountancy in any Part B State and who, although not possessing the requisite qualifications to be registered as an accountant under the Auditors' Certificates Rules, 1932, fulfils such conditions as the Central Government may specify in this behalf;
(v) any person who has passed such other examination and completed such other training without India as is recognized by the Central Government or the Council as being equivalent to the examination and training prescribed for members of the Institute:
PROVIDED that in the case of any person who is not permanently residing in India, the Central Government or the Council, as the case may be, may impose such further conditions as it may deem fit;
(vi) any person domiciled in India, who at the commencement of this Act is studying for any foreign examination and is at the same time undergoing training, whether within or without India, or, who having passed such foreign examination, is at the commencement of this Act undergoing training, whether within or without India:
PROVIDED that any such examination or training was recognized before the commencement of this Act for the purpose of conferring the right to be registered as an accountant under the Auditors' Certificates Rules, 1932, and provided further that such person passes the examination or completes the training within five years after the commencement of this Act.
(2) Every person belonging to the class mentioned in clause (i) of sub-section (1) shall have his name entered in the Register without the payment of any entrance fee.
(3) Every person belonging to any of the classes mentioned in clauses (ii), (iii), (iv), (v) and (vi) of sub-section (1) shall have his name entered in the Register on application being made and granted in the prescribed manner and on payment of such fees, as may be determined, by notification, by the Council, which shall not exceed rupees three thousand:
Provided that the Council may, with the prior approval of the Central Government, determine the fee exceeding rupees three thousand, which shall not in any case exceed rupees six thousand.
(4) The Central Government shall take steps as may be necessary for the purpose of having the names of all persons belonging to the class mentioned in clause (i) of sub-section (1) entered in the Register.
### 5. Fellows and associates
(1) The members of the Institute shall be divided into two classes designated respectively as associates and fellows.
(2) Any person shall, on his name being entered in the Register, be deemed to have become an associate member of the Institute and be entitled to use the letters ACA after his name to indicate that he is an associate member of the Institute of Chartered Accountants.
(3) A member, being an associate who has been in continuous practice in India for at least five years, whether before or after the commencement of this Act, or whether partly before and partly after the commencement of this Act, and a member who has been an associate for a continuous period of not less than five years and who possesses such qualifications as the Council may prescribe with a view to ensuring that he has experience equivalent to the experience normally acquired as a result of continuous practice for a period of five years as a chartered accountant shall, on payment of such fees, as may be determined, by notification, by the Council, which shall not exceed rupees five thousand and on application made and granted in the prescribed manner, be entered in the Register as a fellow of the Institute and shall be entitled to use the letters F. C. A. after his name to indicate that he is a fellow of the Institute of Chartered Accountants:
Provided that the Council may with the prior approval of the Central Government, determine the fee exceeding rupees five thousand, which shall not in any case exceed rupees ten thousand.
### 6. Certificate of practice
(1) No member of the Institute shall be entitled to practice whether in India or elsewhere unless he has obtained from the Council a certificate of practice:
PROVIDED that nothing contained in this sub-section shall apply to any person who, immediately before the commencement of this Act, has been in practice as a registered accountant or a holder of a restricted certificate until one month has elapsed from the date of the first meeting of the Council.
(2) Every such member shall pay such annual fee for his certificate as may be determined, by notification, by the Council, which shall not exceed rupees three thousand, and such fee shall be payable on or before the 1st day of April in each year:
Provided that the Council may with the prior approval of the Central Government, determine the fee exceeding rupees three thousand, which shall not in any case exceed rupees six thousand.
(3) The certificate of practice obtained under sub-section (1) may be cancelled by the Council under such circumstances as may be prescribed.
### 7. Members to be known as Chartered Accountants
Every member of the Institute in practice shall, and any other member may, use the designation of a chartered accountant and no member using such designation shall use any other description, whether in addition thereto or in substitution therefor:
PROVIDED that nothing contained in this section shall be deemed to prohibit any such person from adding any other description or letters of his name, if entitled thereto, to indicate membership of such other Institute of Accountancy, whether in India or elsewhere, as may be recognized in this behalf by the Council, or any other qualification that he may possess, or to prohibit a firm, all the partners of which are members of the Institute and in practice, from being known by its firm name as Chartered Accountants.
### 8. Disabilities
Notwithstanding anything contained in section 4, a person shall not be entitled to have his name entered in or borne on the Register if he-
(i) has not attained the age of twenty-one years at the time of his application for the entry of his name in the Register; or
(ii) is of unsound mind and stands so adjudged by a competent court; or
(iii) is an undischarged insolvent; or
(iv) being a discharged insolvent, has not obtained from the court a certificate stating that his insolvency was caused by misfortune without any misconduct on his part; or
(v) has been convicted by a competent court whether within or without India, of an offence involving moral turpitude and punishable with transportation or imprisonment or of an offence, not of technical nature, committed by him in his professional capacity unless in respect of the offence committed he has either been granted a pardon or, on an application made by him in this behalf, the Central Government has, by an order in writing, removed the disability; or
(vi) has been removed from membership of the Institute on being found on inquiry to have been guilty of professional or other misconduct:
PROVIDED that a person who has been removed from membership for a specified period, shall not be entitled to have his name entered in the Register until the expiry of such period.
### 9. Constitution of the Council of the Institute
(1) There shall be a Council of the Institute for the management of the affairs of the Institute and for discharging the functions assigned to it under this Act.
(2) The Council shall be composed of the following persons, namely:-
(a) not more than thirty-two persons elected by the members of the Institute from amongst the fellows of the Institute chosen in such manner and from such regional constituencies as may be specified:
Provided that a fellow of the Institute, who has been found guilty of any professional or other misconduct and whose name is removed from the Register or has been awarded penalty of fine, shall not be eligible to contest the election,-
(i) in case of misconduct falling under the First Schedule of this Act, for a period of three years;
(ii) in case of misconduct falling under the Second Schedule of this Act, for a period of six years, from the completion of the period of removal of name from the Register or payment of fine, as the case may be;
(b) not more than eight persons to be nominated in the specified manner, by the Central Government.
(3) No person holding a post under the Central Government or a State Government shall be eligible for election to the Council under clause (a) of sub-section (2).
(4) No person who has been auditor of the Institute shall be eligible for election to the Council under clause (a) of sub-section (2), for a period of three years after he ceases to be an auditor.
### 10. Re-election or re-nomination to Council.-
A member of the Council, elected or nominated under sub-section (2) of section 9, shall be eligible for re-election or, as the case may be, re-nomination:
Provided that no member shall hold the office for more than three consecutive terms:
Provided further that a member of the Council, who is or has been elected as President under sub-section (1) of section 12, shall not be eligible for election or nomination as a member of the Council.
### 10A. Settlement of dispute regarding election.-
In case of any dispute regarding any election under clause (a) of sub-section (2) of section 9, the aggrieved person may make an application within thirty days from the date of declaration of the result of election to the Secretary of the Institute, who shall forward the same to the Central Government.
### 10B. Establishment of Tribunal.-
(1) On receipt of any application under section 10A, the Central Government shall, by notification, establish a Tribunal consisting of a Presiding Officer and two other Members to decide such dispute and the decision of such Tribunal shall be final.
(2) A person shall not be qualified for appointment,-
(a) as a Presiding Officer of the Tribunal unless he has been a member of the Indian Legal Service and has held a post in Grade I of the service for at least three years;
(b) as a Member unless he has been a member of the Council for at least one full term and who is not a sitting member of the Council or who has not been a candidate in the election under dispute; or
(c) as a Member unless he holds the post of a Joint Secretary to the Government of India or any other post under the Central Government carrying a scale of pay which is not less than that of a Joint Secretary to the Government of India.
(3) The terms and conditions of service of the Presiding Officer and Members of the Tribunal, their place of meetings and allowances shall be such as may be specified.
(4) The expenses of the Tribunal shall be borne by the Council.
### 11. Nomination in default of election or nomination
If any body of persons referred to in section 9 fails to elect any of the members of the Council which it is empowered under that section to elect, the Central Government may nominate a person duly qualified to fill the vacancy, and any person so nominated shall be deemed to be a member of the Council as if he had been duly elected.
### 12. President and Vice-President
(1) The Council at its first meeting shall elect two of its members to be respectively the President and the Vice-President thereof, and so often as the office of the President or the Vice-President becomes vacant the Council shall choose another person to be the President or the Vice-President, as the case may be:
PROVIDED that on the first constitution of the Council a member of the Council nominated in this behalf by the Central Government shall discharge the functions of the President, until such time as a President is elected under, the provisions of the sub-section.
(2) The President shall be the Chief Executive Authority of the Council.
(3) The President or the Vice-President shall hold office for a period of one year from the date on which he is chosen but so as not to extend beyond his term of office as a member of the Council, and, subject to his being a member of the Council at the relevant time, he shall be eligible for re-election under sub-section (1).
(4) On the expiration of the duration of the Council, the President and the Vice-President of the Council at the time of such expiration shall continue to hold office and discharge such administrative and the other duties as may be prescribed until such time as a new President and the Vice-President shall have been elected and shall have taken over charge of their duties.
### 13. Resignation of membership and casual vacancies
(1) Any member of the Council may at any time resign his membership by writing under his hand addressed to the President, and the seat of such member shall become vacant when such resignation is notified in the Official Gazette.
(2) A member of the Council shall be deemed to have vacated his se at if he is declared by the Council to have been absent without sufficient excuse from three consecutive meetings of the Council or he has been found guilty of any professional or other misconduct and awarded penalty of fine, or if his name is, for any cause, removed from the Register under the provisions of section 20.
(3) A casual vacancy in the Council shall be filled by fresh election from the constituency concerned or by nomination by the Central Government, as the case may be, and the person elected or nominated to fill the vacancy shall hold office until the dissolution of the Council:
PROVIDED that no election shall be held to fill a casual vacancy occurring within one year prior to the date of the expiration of the duration of the Council, but such a vacancy may be filled by nomination by the Central Government after consultation with the President of the Council.
(4) No act done by the Council shall be called in question on the ground merely of the existence of any vacancy in, or defect in the constitution of, the Council.
### 14. Duration and dissolution of Council
(1) The duration of any Council constituted under this Act shall be three years from the date of its first meeting, on the expiry of which it shall stand dissolved and a new Council constituted in accordance with the provisions of this Act.
(2) Notwithstanding the expiration of the duration of a Council (hereinafter referred to as the former Council), the former Council shall continue to exercise its functions until a new Council is constituted in accordance with the provisions of this Act, and on such constitution, the former Council shall stand dissolved.
### 15. Functions of Council.-
(1) The Institute shall function under the overall control, guidance and supervision of the Council and the duty of carrying out the provisions of this Act shall be vested in the Council.
(2) In particular, and without prejudice to the generality of the foregoing powers, the duties of the Council shall include -
(a) to approve academic courses and their contents;
(b) the examination of candidates for enrolment and the prescribing of fees therefor;
(c) the regulation of the engagement and training of articled and audit assistants;
(d) the prescribing of qualifications for entry in the Register;
(e) the recognition of foreign qualifications and training for the purposes of enrolment;
(f) the granting or refusal of certificates of practice under this Act;
(g) the maintenance and publication of a Register of persons qualified to practice as chartered accountants;
(h) the levy and collection of fees from members, examinees and other persons;
(i) subject to the orders of the appropriate authorities under the Act, the removal of names from the Register and the restoration to the Register of names which have been removed;
(j) the regulation and maintenance of the status and standard of professional qualifications of members of the Institute;
(k) the carrying out, by granting financial assistance to persons other than members of the Council or in any other manner, of research in accountancy;
(l) the maintenance of a library and publication of books and periodicals relating to accountancy;
(m) to enable functioning of the Director (Discipline), the Board of Discipline, the Disciplinary Committee and the Appellate Authority constituted under the provisions of this Act;
(n) to enable functioning of the Quality Review Board;
(o) consideration of the recommendations of the Quality Review Board made under clause (a) of section 28B and the details of action taken thereon in its annual report; and
(p) to ensure the functioning of the Institute in accordance with the provisions of this Act and in performance of other statutory duties as may be entrusted to the Institute from time to time.
### 15A. Imparting education by Universities and other bodies.-
(1) Subject to the provisions of this Act, any University established by law or any body affiliated to the Institute, may impart education on the subjects covered by the academic courses of the Institute.
(2) The Universities or bodies referred to in sub-section (1) shall, while awarding degree, diploma or certificate or bestowing any designation, ensure that the award or designation do not resemble or is not identical to one awarded by the Institute.
(3) Nothing contained in this section shall enable a University or a body to adopt a name or nomenclature which is in any way similar to that of the Institute.
### 16. Officers and employees, salary, allowances, etc.-
(1) For the efficient performance of its duties, the Council shall-
(a) appoint a Secretary to perform such duties as may be prescribed;
(b) appoint a Director (Discipline) to perform such functions as are assigned to him under this Act and the rules and regulations framed thereunder.
(2) The Council may also-
(a) appoint such other officers and employees as it considers necessary;
(b) require and take from the Secretary or from any other officer or employee such security for the due performance of his duties, as the Council considers necessary;
(c) prescribe the salaries, fees, allowances of the officers and employees and their terms and conditions of service;
(d) with the previous sanction of the Central Government, fix the allowances of the President, Vice-President and other members of the Council and members of its Committees.
(3) The Secretary of the Council shall be entitled to participate in the meetings of the Council but shall not be entitled to vote thereat.
### 17. Committees of the Council
(1) The Council shall constitute from amongst its members the following Standing Committees, namely:
(i) an Executive Committee,
(ii) an Examination Committee, and
(iii) a Finance Committee.
(2) The Council may also form such other committees from amongst its members as it consider necessary for the purpose of carrying out the provisions of this Act, and any Committee so formed may, with the sanction of the Council, co-opt such other members of the Institute not exceeding one-third of the members of the committee as it thinks fit, and any member so co-opted shall be entitled to exercise all the rights of a member of the committee.
(3) Each of the Standing Committees shall consist of the President and the Vice-President ex officio, and minimum of three and maximum of five members to be elected by the Council from amongst its members.
(4) The President and the Vice-President of the Council shall be the Chairman and Vice-Chairman respectively of each of the Standing Committees.
(5) Every member of the Standing Committee other than the Chairman and the Vice-Chairman shall hold office for one year from the date of his election, but subject to being a member of the Council, he shall be eligible for re-election.
(6) The Standing Committees shall exercise such functions and be subject to such conditions in the exercise thereof as may be prescribed.
### 18. Finances of the Council
(1) There shall be established a fund under the management and control of the Council into which shall be paid all moneys received by the Council and out of which shall be met all expenses and liabilities properly incurred by the Council.
(2) The Council may invest any money for the time being standing to the credit of the fund in any government security or in any other security approved by the Central Government.
(3) The Council shall keep proper accounts of the fund distinguishing capital from revenue in the manner prescribed.
(4) The Council shall prepare in the manner prescribed and approve, prior to the start of the financial year, an annual financial statement (the budget) indicating all its anticipated revenues as well as all proposed expenditures for the forthcoming year.
(5) The annual accounts of the Council shall be prepared in such manner as may be prescribed and be subject to audit by a chartered accountant in practice to be appointed annually by the Council:
Provided that no member of the Council or a person who has been a member of the Council during the last four years or a person who is in partnership with such member shall be eligible for appointment as an auditor under this sub-section:
Provided further that, in the event it is brought to the notice of the Council that the accounts of the Council do not represent a true and fair view of its finances, then, the Council may itself cause a special audit to be conducted:
Provided also that, if such information, that the accounts of the Council do not represent a true and fair view of its finances, is sent to the Council by the Central Government, then, the Council may, wherever appropriate cause a special audit or take such other action as it considers necessary and shall furnish an action taken report on it to the Central Government.
(5A)
As soon as may be practicable at the end of each year, the Council shall circulate the audited accounts to its members at least fifteen days in advance and consider and approve these accounts in a special meeting convened for the purpose.
(5B)
The Council shall cause to be published in the Gazette of India not later than the 30th day of September of the year next following, a copy of the audited accounts and the Report of the Council for that year duly approved by the Council and copies of the said accounts and Report shall be forwarded to the Central Government and to all the members of the Institute.
(6) The Council may borrow from a scheduled bank, as defined in the Reserve Bank of India Act, 1934 (2 of 1934), or from the Central Government-
(a) any money required for meeting its liabilities on capital account on the security of any other assets for the time being belonging to it, or
(b) for the purpose of meeting current liabilities pending the receipt of income by way of temporary loan or overdraft.
### 19. Register
(1) The Council shall maintain in the prescribed manner a Register of the Members of the Institute.
(2) The Register shall include the following particulars about every member of the Institute, namely,-
(a) his full name, date of birth, domicile, residential and professional addresses;
(b) the date on which his name is entered in the Register;
(c) his qualifications;
(d) whether he holds a certificate of practice; and
(e) any other particulars which may be prescribed.
(3) The Council shall cause to be published in such manner as may be prescribed a list of members of the Institute as on the 1st day of April of each year, and shall, if requested to do so by any such member, send to him a copy of such list on payment of such amount as may be prescribed.
(4) Every member of the Institute shall, on his name being entered in the Register, pay such annual membership fee as may be determined, by notification, by the Council, which shall not exceed rupees five thousand:
Provided that the Council may with the prior approval of the Central Government, determine the fee exceeding rupees five thousand, which shall not in any case exceed rupees ten thousand.
### 20. Removal from the Register
(1) The Council may remove from the Register the name of any member of the Institute-
(a) who is dead; or
(b) from whom a request has been received to that effect; or
(c) who has not paid any prescribed fee required to be paid by him; or
(d) who is found to have been subject at the time when his name was entered in the Register, or who at any time thereafter has become subject to any of the disabilities mentioned in section 8, or who for any other reason has ceased to be entitled to have his name borne on the Register.
(2) The Council shall remove from the Register the name of any member in respect of whom an order has been passed under this Act removing him from membership of the Institute.
(3) If the name of any member has been removed from the Register under clause (c) of sub-section (1), on receipt of an application, his name may be entered again in the Register on payment of the arrears of annual fee and entrance fee along with such additional fee, as may be determined, by notification, by the Council which shall not exceed rupees two thousand:
Provided that the Council may with the prior approval of the Central Government, determine the fee exceeding rupees two thousand, which shall not in any case exceed rupees four thousand.
### 21. Disciplinary Directorate.-
(1) The Council shall, by notification, establish a Disciplinary Directorate headed by an officer of the Institute designated as Director (Discipline) and such other employees for making investigations in respect of any information or complaint received by it.
(2) On receipt of any information or complaint along with the prescribed fee, the Director (Discipline) shall arrive at a prima facie opinion on the occurrence of the alleged misconduct.
(3) Where the Director (Discipline) is of the opinion that a member is guilty of any professional or other misconduct mentioned in the First Schedule, he shall place the matter before the Board of Discipline and where the Director (Discipline) is of the opinion that a member is guilty of any professional or other misconduct mentioned in the Second Schedule or in both the Schedules, he shall place the matter before the Disciplinary Committee.
(4) In order to make investigations under the provisions of this Act, the Disciplinary Directorate shall follow such procedure as may be specified.
(5) Where a complainant withdraws the complaint, the Director (Discipline) shall place such withdrawal before the Board of Discipline or, as the case may be, the Disciplinary Committee, and the said Board or Committee may, if it is of the view that the circumstances so warrant, permit the withdrawal at any stage.
### 21A. Board of Discipline.-
(1) The Council shall constitute a Board of Discipline consisting of -
(a) a person with experience in law and having knowledge of disciplinary matters and the profession, to be its presiding officer;
(b) two members one of whom shall be a member of the Council elected by the Council and the other member shall be nominated by the Central Government from amongst the persons of eminence having experience in the field of law, economics, business, finance or accountancy;
(c) the Director (Discipline) shall function as the Secretary of the Board.
(2) The Board of Discipline shall follow summary disposal procedure in dealing with all cases before it.
(3) Where the Board of Discipline is of the opinion that a member is guilty of a professional or other misconduct mentioned in the First Schedule, it shall afford to the member an opportunity of being heard before making any order against him and may thereafter take any one or more of the following actions, namely:-
(a) reprimand the member;
(b) remove the name of the member from the Register up to a period of three months;
(c) impose such fine as it may think fit, which may extend to rupees one lakh.
(4) The Director (Discipline) shall submit before the Board of Discipline all information and complaints where he is of the opinion that there is no prima facie case and the Board of Discipline may, if it agrees with the opinion of the Director (Discipline), close the matter or in case of disagreement, may advise the Director (Discipline) to further investigate the matter.
### 21B. Disciplinary Committee.-
(1) The Council shall constitute a Disciplinary Committee consisting of the President or the Vice-President of the Council as the Presiding Officer and two members to be elected from amongst the members of the Council and two members to be nominated by the Central Government from amongst the persons of eminence having experience in the field of law, economics, business, finance or accountancy:
Provided that the Council may constitute more Disciplinary Committees as and when it considers necessary.
(2) The Disciplinary Committee, while considering the cases placed before it shall follow such procedure as may be specified.
(3) Where the Disciplinary Committee is of the opinion that a member is guilty of a professional or other misconduct mentioned in the Second Schedule or both the First Schedule and the Second Schedule, it shall afford to the member an opportunity of being heard before making any order against him and may thereafter take any one or more of the following actions, namely: -
(a) reprimand the member;
(b) remove the name of the member from the Register permanently or for such period, as it thinks fit;
(c) impose such fine as it may think fit, which may extend to rupees five lakhs.
(4) The allowances payable to the members nominated by the Central Government shall be such as may be specified.
### 21C. Authority, Disciplinary Committee, Board of Discipline and Director (Discipline) to have powers of civil court.-
For the purposes of an inquiry under the provisions of this Act, the Authority, the Disciplinary Committee, Board of Discipline and the Director (Discipline) shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), in respect of the following matters, namely:-
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) the discovery and production of any document; and
(c) receiving evidence on affidavit.
Explanation.-For the purposes of sections 21, 21A, 21B, 21C and 22, "member of the Institute" includes a person who was a member of the Institute on the date of the alleged misconduct although he has ceased to be a member of the Institute at the time of the inquiry.
### 21D. Transitional provisions.-
All complaints pending before the Council or any inquiry initiated by the Disciplinary Committee or any reference or appeal made to a High Court prior to the commencement of the Chartered Accountants (Amendment) Act, 2006, shall continue to be governed by the provisions of this Act, as if this Act had not been amended by the Chartered Accountants (Amendment) Act, 2006.
### 22. Professional or other misconduct defined.-
For the purposes of this Act, the expression "professional or other misconduct" shall be deemed to include any act or omission provided in any of the Schedules, but nothing in this section shall be construed to limit or abridge in any way the power conferred or duty cast on the Director (Discipline) under sub-section (1) of section 21 to inquire into the conduct of any member of the Institute under any other circumstances.
### 22A. Constitution of Appellate Authority.-
(1) The Central Government shall, by notification, constitute an Appellate Authority consisting of-
(a) a person who is or has been a judge of a High Court, to be its Chairperson;
(b) two members to be appointed from amongst the persons who have been members of the Council for at least one full term and who is not a sitting member of the Council;
(c) two members to be nominated by the Central Government from amongst persons having knowledge and practical experience in the field of law, economics, business, finance or accountancy.
(2) The Chairperson and other members shall be part-time members.
### 22B. Term of office of Chairperson and members of Authority.-
(1) A person appointed as the Chairperson shall hold office for a term of three years from the date on which he enters upon his office or until he attains the age of sixty-five years, whichever is earlier.
(2) A person appointed as a member shall hold office for a term of three years from the date on which he enters upon his office or until he attains the age of sixty-two years, whichever is earlier.
### 22C. Allowances and conditions of service of Chairperson and members of Authority.-
The allowances payable to, and other terms and conditions of service of, the Chairperson and members and the manner of meeting expenditure of the Authority by the Council and such other authorities shall be such as may be specified.
### 22D. Procedure to be regulated by Authority.-
(1) The office of the Authority shall be at Delhi.
(2) The Authority shall regulate its own procedure.
(3) All orders and decisions of the Authority shall be authenticated by an officer duly authorised by the Chairperson in this behalf.
### 22E. Officers and other staff of Authority.-
(1) The Council shall make available to the Authority such officers and other staff members as may be necessary for the efficient performance of the functions of the Authority.
(2) The salaries and allowances and conditions of service of the officers and other staff members of the Authority shall be such as may be prescribed.
### 22F. Resignation and removal of Chairperson and members.-
(1) The Chairperson or a member may, by notice in writing under his hand addressed to the Central Government, resign his office:
Provided that the Chairperson or a member shall, unless he is permitted by the Central Government to relinquish his office sooner, continue to hold office until the expiry of three months from the date of receipt of such notice or until a person duly appointed as his successor enters upon his office or until the expiry of term of office, whichever is earlier.
(2) The Chairperson or a member shall not be removed from his office except by an order of the Central Government on the ground of proved misbehaviour or incapacity after an inquiry made by such person as the Central Government may appoint for this purpose in which the Chairperson or a member concerned has been informed of the charges against him and given a reasonable opportunity of being heard in respect of such charges.
### 22G. Appeal to Authority.-
(1) Any member of the Institute aggrieved by any order of the Board of Discipline or the Disciplinary Committee imposing on him any of the penalties referred to in sub-section (3) of section 21A and sub-section (3) of section 21B, may within ninety days from the date on which the order is communicated to him, prefer an appeal to the Authority:
Provided that the Director (Discipline) may also appeal against the decision of the Board of Discipline or the Disciplinary Committee to the Authority, if so authorised by the Council, within ninety days:
Provided further that the Authority may entertain any such appeal after the expiry of the said period of ninety days, if it is satisfied that there was sufficient cause for not filing the appeal in time.
(2) The Authority may, after calling for the records of any case, revise any order made by the Board of Discipline or the Disciplinary Committee under sub-section (3) of section 21A and sub-section (3) of section 21B and may-
(a) confirm, modify or set aside the order;
(b) impose any penalty or set aside, reduce, or enhance the penalty imposed by the order;
(c) remit the case to the Board of Discipline or Disciplinary Committee for such further enquiry as the Authority considers proper in the circumstances of the case; or
(d) pass such other order as the Authority thinks fit:
Provided that the Authority shall give an opportunity of being heard to the parties concerned before passing any order
### 23. Constitution and functions of Regional Councils :-
(1) For the purpose of advising and assisting it on matters concerning its functions, the Council may constitute such Regional Councils as and when it deems fit for one or more of the regional constituencies that may be specified by the Central Government under clause (a) of sub-section (2) of section 9.
(2) The Regional Councils shall be constituted in such manner and exercise such functions as may be prescribed.
### 24. Penalty for falsely claiming to be a member, etc. Any person who-
(i) not being a member of the Institute-
(a) represents that he is a member of the Institute; or
(b) uses the designation Chartered Accountant; or
(ii) being a member of the Institute, but not having a certificate of practice, represents that he is in practice or practices as a chartered accountant, shall be punishable on first conviction with fine which may extend to one thousand rupees, and on any subsequent conviction with imprisonment which may extend to six months or with fine which may extend to five thousand rupees, or with both.
### 24A. Penalty for using name of the Council, awarding degrees of chartered accountancy, etc.
(1) Save as otherwise provided in this Act, no person shall-
(i) use a name or a common seal which is identical with the name or the common seal of the Institute or so nearly resembles it as to deceive or as is likely to deceive the public;
(ii) award any degree, diploma or certificate or bestow any designation which indicates or purports to indicate the position or attainment of any qualification or competence similar to that of a member of the Institute; or
(iii) seek to regulate in any manner whatsoever the profession of chartered accountants.
(2) Any person contravening the provisions of sub-section (1) shall, without prejudice to any other proceedings which may be taken against him, be punishable with fine which may extend on first conviction to one thousand rupees, and on any subsequent conviction with imprisonment which may extend to six months, or with fine which may extend to five thousand rupees, or with both.
### 25. Companies not to engage in accountancy
(1) No company, whether incorporated in India or elsewhere, shall practice as chartered accountants.
Explanation. —For the removal of doubts, it is hereby declared that the "company" shall include any limited liability partnership which has company as its partner for the purposes of this section.
(2) Any person who contravenes the provisions of sub-section (1) shall, without prejudice to any other proceedings, which may be taken against him, be punishable on first conviction with a fine not less than five thousand rupees but which may extend to one lakh rupees, and in the event of a second or subsequent conviction with imprisonment for a term which may extend to one year or with fine not less ten thousand rupees but which may extend to two lakh rupees or with both.
### 26. Unqualified persons not to sign documents
(1) No person other than a member of the Institute shall sign any document on behalf of a chartered accountant in practice or a firm of such chartered accountants in his or its professional capacity.
(2) Any person contravening the provisions of sub-section (1) shall, without prejudice to any other proceedings, which may be taken against him, be punishable with fine which may extend on first conviction to one thousand rupees and on any subsequent conviction with imprisonment which may extend to six months or with fine which may extend to five thousand rupees or with both.
### 27. Maintenance of branch offices
(1) Where a chartered accountant in practice or a firm of such chartered accountants has more than one office in India, each one of such offices shall be in the separate charge of a member of the Institute:
PROVIDED that the Council may in suitable cases exempt any chartered accountant in practice or a firm of such chartered accountants from the operation of this sub-section.
(2) Every chartered accountant in practice or a firm of such chartered accountants maintaining more than one office shall send to the Council a list of offices and the persons in charge thereof and shall keep the Council informed of any changes in relation thereto.
### 28. Sanction to prosecute
No person shall be prosecuted under this Act except on a complaint made by or under the order of the Council or of the Central Government.
### 28A. Establishment of Quality Review Board.-
(1) The Central Government shall, by notification, constitute a Quality Review Board consisting of a Chairperson and ten other members.
(2) The Chairperson and members of the Board shall be appointed from amongst the persons of eminence having experience in the field of law, economics, business, finance or accountancy.
(3) Five members of the Board shall be nominated by the Council and other five members shall be nominated by the Central Government.
### 28B. Functions of Board.-
The Board shall perform the following functions, namely:-
(a) to make recommendations to the Council with regard to the quality of services provided by the members of the Institute;
(b) to review the quality of services provided by the members of the Institute including audit services; and
(c) to guide the members of the Institute to improve the quality of services and adherence to the various statutory and other regulatory requirements.
### 28C. Procedure of Board.-
The Board shall meet at such time and place and follow in its meetings such procedure as may be specified.
### 28D. Terms and conditions of services of Chairperson and members of Board and its expenditure.-
(1) The terms and conditions of service of the Chairperson and the members of the Board, and their allowances shall be such as may be specified.
(2) The expenditure of the Board shall be borne by the Council.
### 29. Reciprocity
(1) Where any country, specified by the Central Government in this behalf by notification in the Official Gazette, prevents persons of Indian domicile from becoming members of any institution similar to the Institute of Chartered Accountants of India or from practicing the profession of accountancy or subjects them to unfair discrimination in that country, no subject of any such country shall be entitled to become a member of the Institute or practice the profession of accountancy in India.
(2) Subject to the provisions of sub-section (1), the Council may prescribe the conditions, if any, subject to which foreign qualifications relating to accountancy shall be recognized for the purposes of entry in the Register.
### 29A. Power of Central Government to make rules.-
(1) The Central Government may, by notification, make rules to carry out the provisions of this Act.
(2) In particular, and without prejudice to the generality of the foregoing powers, such rules may provide for all or any of the following matters, namely:-
(a) the manner of election and nomination in respect of members to the Council under sub-section (2) of section 9;
(b) the terms and conditions of service of the Presiding Officer and Members of the Tribunal, place of meetings and allowances to be paid to them under sub-section (3) of section 10B;
(c) the procedure of investigation under sub-section (4) of section 21;
(d) the procedure while considering the cases by the Disciplinary Committee under sub-section (2), and the fixation of allowances of the nominated members under sub-section (4) of section 21B;
(e) the allowances and terms and conditions of service of the Chairperson and members of the Authority and the manner of meeting expenditure by the Council under section 22C;
(f) the procedure to be followed by the Board in its meetings under section 28C; and
(g) the terms and conditions of service of the Chairperson and members of the Board under sub-section (1) of section 28D.
### 30. Power to make regulations
(1) The Council may, by notifications in the Gazette of India, make regulations for the purpose of carrying out the objects of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters,-
(a) the standard and conduct of examinations under this Act;
(b) the qualifications for the entry of the name of any person in the Register as a member of the Institute;
(c) the conditions under which any examination or training may be treated as equivalent to the examination and training prescribed for members of the Institute;
(d) the conditions under which any foreign qualification may be recognized;
(e) the manner in which and the conditions subject to which applications for entry in the Register may be made;
(f) the fees payable for membership of the Institute and the annual fee payable by associates and fellows of the Institute in respect of their certificates;
(g) the manner in which elections to the Regional Councils may be held;
(h) the particulars to be entered in the Register;
(i) the functions of Regional Councils;
(j) the training of articled and audit assistants, the fixation of limits within which premia may be charged from articled assistants and the cancellation of articles and termination of audit service for misconduct or for any other sufficient cause;
(k) the regulation and maintenance of the status and standard of professional qualifications of members of the Institute;
(l) the carrying out of research in accountancy;
(m) the maintenance of a library and publication of books and periodicals on accountancy;
(n) the management of the property of the Council and the maintenance and audit of its accounts;
(o) the summoning and holding of meetings of the Council, the times and places of such meetings, the conduct of business thereat and the number of members necessary to form a quorum;
(p) the powers, duties and functions of the President and the Vice-President of the Council;
(q) the functions of the Standing and other committees and the conditions subject to which such functions shall be discharged;
(r) the terms of office, and the powers, duties and functions of the Secretary and other officers and servants of the Council; and
(s) Repealed by Section 30 of the Chartered Accountants (Amendment) Act, 2006
(t) any other matter which is required to be or may be prescribed under this Act.
(3) All regulations made by the Council under this Act shall be subject to the condition of previous publication and to the approval of the Central Government.
(4) Notwithstanding anything contained in sub-sections (1) and (2) the Central Government may frame the first regulations for the purposes mentioned in this section, and regulations shall be deemed to have been made by the Council, and shall remain in force from the date of the coming into force of this Act, until they are amended, altered or revoked by the Council.
### 30A. Powers of Central Government to direct regulations to be made or to make or amend regulations
(1) Where the Central Government considers it expedient so to do, it may, by order in writing, direct the Council to make any regulations or to amend or revoke any regulations already made within such period as it may specify in this behalf.
(2) If the Council fails or neglects to comply with such order within the specified period, the Central Government may make the regulations or amend or revoke the regulations made by the Council, as the case may be, either in the form specified in the order or with such modifications thereof as the Central Government thinks fit.
### 30B. Rules, regulations and notifications to be laid before Parliament.
Every rule and every regulation made and every notification issued under this Act shall be laid, as soon as may be after it is made or issued, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule, regulation or notification, or both Houses agree that the rule, regulation or notification should not be made or issued, the rule, regulation or notification, shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule, regulation or notification.
### 30C. Power of Central Government to issue directions.-
(1) In the event of non-compliance by the Council of any provisions of this Act, the Central Government may give to the Council such general or special directions as it considers necessary to ensure compliance and the Council shall, in the discharge of its functions under this Act, comply with such directions.
(2) If, in the opinion of the Central Government, the Council has persistently made default in giving effect to the directions issued under sub-section (1), it may, after giving an opportunity of being heard to the Council, by notification, dissolve the Council, whereafter a new Council shall be constituted in accordance with the provisions of this Act with effect from such date as may be decided by the Central Government:
Provided that the Central Government shall ensure constitution of a new Council in accordance with the provisions of this Act within a period of one year from the date of its dissolution.
(3) Where the Central Government has issued a notification under subsection (2) dissolving the Council, it shall, pending the constitution of a new Council in accordance with the provisions of this Act, nominate any person or body of persons not exceeding five members to manage the affairs and discharge all or any of the functions of the Council under this Act.
### 30D. Protection of action taken in good faith.-
No suit, prosecution or other legal proceeding shall lie against the Central Government or the Council or the Authority or the Disciplinary Committee or the Tribunal or the Board or the Board of Discipline or the Disciplinary Directorate or any officer of that Government, Council, Authority, Disciplinary Committee, Tribunal, Board, Board of Discipline or the Disciplinary Directorate, for anything which is in good faith done or intended to be done under this Act or any rule, regulation, notification, direction or order made thereunder.
### 30E. Members, etc., to be public servants.-
The Chairperson, Presiding Officer, members and other officers and employees of the Authority, Disciplinary Committee, Tribunal, Board, Board of Discipline or the Disciplinary Directorate shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code (45 of 1860).
### 31. Construction of references
Any reference to a chartered accountant or a registered accountant or a certified or qualified auditor in any other law or in any document whatsoever shall be construed as a reference to a chartered accountant in practice within the meaning of this Act.
### 32. Act not to affect right of accountants to practice as such in Part B States
Nothing contained in this Act shall affect the right of any person who, at the commencement of this Act, is entitled to engage himself in the practice of accountancy in any Part B State under any law in force in that State, to continue to engage himself in the practice of accountancy in that State after the commencement of this Act.
### 33. Amendment of Section 144, Indian Companies Act, 1913
Repealed by the Repealing and Amending Act, 1952 (48 of 1952), Section 2 and Schedule I (2-8-1952).
[See sections 21 (3) , 21A(3) and 22]
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Part 1
--------
PROFESSIONAL MISCONDUCT IN RELATION TO CHARTERED ACCOUNTANTS IN PRACTICE
A chartered accountant in practice shall be deemed to be guilty of professional misconduct, if he-
(1) allows any person to practice in his name as a chartered accountant unless such person is also a chartered accountant in practice and is in partnership with or employed by him;
(2) pays or allows or agrees to pay or allow, directly or indirectly, any share, commission or brokerage in the fees or profits of his professional business, to any person other than a member of the Institute or a partner or a retired partner or the legal representative of a deceased partner, or a member of any other professional body or with such other persons having such qualifications as may be prescribed, for the purpose of rendering such professional services from time to time in or outside India.
Explanation. - In this item, "partner" includes a person residing outside India with whom a chartered accountant in practice has entered into partnership which is not in contravention of item (4) of this Part;
(3) accepts or agrees to accept any part of the profits of the professional work of a person who is not a member of the Institute:
Provided that nothing herein contained shall be construed as prohibiting a member from entering into profit sharing or other similar arrangements, including receiving any share commission or brokerage in the fees, with a member of such professional body or other person having qualifications, as is referred to in item (2) of this Part;
(4) enters into partnership, in or outside India, with any person other than a chartered accountant in practice or such other person who is a member of any other professional body having such qualifications as may be prescribed, including a resident who but for his residence abroad would be entitled to be registered as a member under clause (v) of sub-section (1) of section 4 or whose qualifications are recognised by the Central Government or the Council for the purpose of permitting such partnerships;
(5) secures, either through the services of a person who is not an employee of such chartered accountant or who is not his partner or by means which are not open to a chartered accountant, any professional business:
Provided that nothing herein contained shall be construed as prohibiting any arrangement permitted in terms of items (2) , (3) and (4) of this Part;
(6) solicits clients or professional work either directly or indirectly by circular, advertisement, personal communication or interview or by any other means:
Provided that nothing herein contained shall be construed as preventing or prohibiting-
(i) any chartered accountant from applying or requesting for or inviting or securing professional work from another chartered accountant in practice; or
(ii) a member from responding to tenders or enquiries issued by various users of professional services or organisations from time to time and securing professional work as a consequence;
(7) advertises his professional attainments or services, or uses any designation or expressions other than chartered accountant on professional documents, visiting cards, letter heads or sign boards, unless it be a degree of a University established by law in India or recognised by the Central Government or a title indicating membership of the Institute of Chartered Accountants of India or of any other institution that has been recognised by the Central Government or may be recognised by the Council:
Provided that a member in practice may advertise through a write up, setting out the services provided by him or his firm and particulars of his firm subject to such guidelines as may be issued by the Council;
(8) accepts a position as auditor previously held by another chartered accountant or a certified auditor who has been issued certificate under the Restricted Certificate Rules, 1932 without first communicating with him in writing;
(9) accepts an appointment as auditor of a company without first ascertaining from it whether the requirements of section 225 of the Companies Act, 1956 (1 of 1956) in respect of such appointment have been duly complied with;
(10) charges or offers to charge, accepts or offers to accept in respect of any professional employment, fees which are based on a percentage of profits or which are contingent upon the findings, or results of such employment, except as permitted under any regulation made under this Act;
(11) engages in any business or occupation other than the profession of chartered accountant unless permitted by the Council so to engage:
Provided that nothing contained herein shall disentitle a chartered accountant from being a director of a company (not being a managing director or a whole time director) unless he or any of his partners is interested in such company as an auditor;
(12) allows a person not being a member of the Institute in practice, or a member not being his partner to sign on his behalf or on behalf of his firm, any balance-sheet, profit and loss account, report or financial statements.
Part II
---------
Professional misconduct in relation to members of the Institute in service
A member of the Institute (other than a member in practice) shall be deemed to be guilty of professional misconduct, if he being an employee of any company, firm or person-
(1) pays or allows or agrees to pay directly or indirectly to any person any share in the emoluments of the employment undertaken by him;
(2) accepts or agrees to accept any part of fees, profits or gains from a lawyer, a chartered accountant or broker engaged by such company, firm or person or agent or customer of such company, firm or person by way of commission or gratification.
Part III
----------
Professional misconduct in relation to members of the Institute generally
A member of the Institute, whether in practice or not, shall be deemed to be guilty of professional misconduct, if he-
(1) not being a fellow of the Institute, acts as a fellow of the Institute;
(2) does not supply the information called for, or does not comply with the requirements asked for, by the Institute, Council or any of its Committees, Director (Discipline), Board of Discipline, Disciplinary Committee, Quality Review Board or the Appellate Authority;
(3) while inviting professional work from another chartered accountant or while responding to tenders or enquiries or while advertising through a write up or anything as provided for in items (6) and (7) of Part I of this Schedule, gives information knowing it to be false.
Part IV
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Other misconduct in relation to members of the Institute generally
A member of the Institute, whether in practice or not, shall be deemed to be guilty of other misconduct, if he-
(1) is held guilty by any civil or criminal court for an offence which is punishable with imprisonment for a term not exceeding six months;
(2) in the opinion of the Council, brings disrepute to the profession or the Institute as a result of his action whether or not related to his professional work.
[Sections 21(3) , 21B(3) and 22]
---------------------------------
Part 1
--------
PROFESSIONAL MISCONDUCT IN RELATION TO CHARTERED ACCOUNTANT IN PRACTICE
A chartered accountant in practice shall be deemed to be guilty of professional misconduct, if he-
(1) discloses information acquired in the course of his professional engagement to any person other than his client so engaging him, without the consent of his client or otherwise than as required by any law for the time being in force;
(2) certifies or submits in his name, or in the name of his firm, a report of an examination of financial statements unless the examination of such statements and the related records has been made by him or by a partner or an employee in his firm or by another chartered accountant in practice;
(3) permits his name or the name of his firm to be used in connection with an estimate of earnings contingent upon future transactions in a manner which may lead to the belief that he vouches for the accuracy of the forecast;
(4) expresses his opinion on financial statements of any business or enterprise in which he, his firm, or a partner in his firm has a substantial interest;
(5) fails to disclose a material fact known to him which is not disclosed in a financial statement, but disclosure of which is necessary in making such financial statement where he is concerned with that financial statement in a professional capacity;
(6) fails to report a material misstatement known to him to appear in a financial statement with which he is concerned in a professional capacity;
(7) does not exercise due diligence, or is grossly negligent in the conduct of his professional duties;
(8) fails to obtain sufficient information which is necessary for expression of an opinion or its exceptions are sufficiently material to negate the expression of an opinion;
(9) fails to invite attention to any material departure from the generally accepted procedure of audit applicable to the circumstances;
(10) fails to keep moneys of his client other than fees or remuneration or money meant to be expended in a separate banking account or to use such moneys for purposes for which they are intended within a reasonable time.
Part II
---------
Professional misconduct in relation to members of the Institute generally
A member of the Institute, whether in practice or not, shall be deemed to be guilty of professional misconduct, if he-
(1) contravenes any of the provisions of this Act or the regulations made thereunder or any guidelines issued by the Council;
(2) being an employee of any company, firm or person, discloses confidential information acquired in the course of his employment except as and when required by any law for the time being in force or except as permitted by the employer;
(3) includes in any information, statement, return or form to be submitted to the Institute, Council or any of its Committees, Director (Discipline), Board of Discipline, Disciplinary Committee, Quality Review Board or the Appellate Authority any particulars knowing them to be false;
(4) defalcates or embezzles moneys received in his professional capacity.
Part III
----------
Other misconduct in relation to members of the Institute generally
A member of the Institute, whether in practice or not, shall be deemed to be guilty of other misconduct, if he is held guilty by any civil or criminal court for an offence which is punishable with imprisonment for a term exceeding six months.
|
65b98dedab84c7eca86e95a8 | acts |
State of Nagaland - Act
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Nagaland Contract Labour (Regulation and Abolition) Rules, 1979
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NAGALAND
India
Nagaland Contract Labour (Regulation and Abolition) Rules, 1979
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Rule NAGALAND-CONTRACT-LABOUR-REGULATION-AND-ABOLITION-RULES-1979 of 1979
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* Published on 1 January 1979
* Commenced on 1 January 1979
Nagaland Contract Labour (Regulation and Abolition) Rules, 1979
Last Updated 18th February, 2020
Chapter I
Short title extent and commencement.
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### 1. (1) Short title.
- These rules may be called the Nagaland Contract Labour (Regulation and Abolition) Rules, 1979.
(2) Extent: - It extends to the whole of Nagaland.
(3) Commencement: - It shall come into force on a date to be notified in the Gazette.
### 2. Definition.
- In these rules unless the subject or context otherwise requires: -
(a) "Act" means the contract Labour (Regulation & Abolition) Act 1970 (Central Act 37 of 1970);
(b) "Appellate Officer" means the Appellate Officer appointed by the State Government under sub-section (1) of Section 15;
(c) "Board" means the State Advisory Contract Labour Board constituted under Section 4;
(d) "Chairman" means the Chairman of the Board;
(e) "Committee" means a Committee constituted under sub-section (1) of Section 5;
(f) "Form" means a form appended to these rules;
(g) "Government" means the Government of Nagaland;
(h) "Official Gazette" means the Nagaland Gazette;
(i) "Section" means a section of the Act.
Chapter - II State Advisory Board
### 3. The Board shall consist of the following members, namely: -
(a) A Chairman to be appointed by the Government.
(b) The Labour Commissioner or in his absence Deputy Labour Commissioner/Assistant Labour Commissioner or any other Officer of the Labour Department nominated by the Government
(c) One person representation the Government to be appointed by the Government from amongst its officials;
(d) Two persons representing an Industry in the public and private sectors respectively to be appointed by the Government in consultation with such organizations as may be considered appropriate by the Government in this behalf;
(e) Two persons representing contractors to whom the Act applies to be appointed by the Government in consultation with such organizations, if any, of the contractors as may be considered appropriate by the Government in this behalf;
(f) Four representatives of Trade Unions connected with establishments and the contractors to whom the Act applies, to be appointed by the Government after consultation with such organizations, if the Government may consider any of the employees representing the respect interest as appropriate.
### 4. Terms of Office.
(1) The official members of the Board including the Chairman shall hold office during the pleasure of the Governor.
(2) A non-official member of the Board shall hold office for a period of three years commencing from the date on which his appointment is first notified in the Official Gazette. Provided that such member shall, notwithstanding the expiry of the said period of three years continue to hold office until his successor is nominated.
(3) A non-official member of the Board nominated to fill a casual vacancy shall hold office for the remaining period of the term of office of the member in whose place he is nominated.
(4) If a member is unable to attend a meeting of the Board, the Government or the body which appointed or nominated him may, by notice in writing signed on its behalf and by such member and addressed to the Chairman of the said Board, nominate a substitute in his place to attend the meeting and such a substitute member shall have all the rights of a member in respect of that meeting and any decision taken at the meeting shall be binding on the said body.
### 5. Resignation.
- A non-official member may resign his office by letter addressed to the Chairman of the Board and his office shall fall vacant from the date on which his resignation is accepted by the Chairman.
### 6. Cessation of membership.
- If any non-official member of the Board fails to attend three consecutive meetings of the Board, without obtaining the leave of the Chairman for such absence, he shall cease to be a member of the Board.
Provided that the Government may, if it is satisfied that such member was prevented by sufficient cause from attending three consecutive meetings of the Board, direct that such cessation shall not take place and on such direction being made, such member shall continue to be a member of the Board.
### 7. Disqualification.
(1) A person shall be disqualified for being re-appointed as and for being a member of the Board.
(i) If he is of unsound mind and stands so declared by a competent Court; or
(ii) If he is an undischarge insolvent; or
(iii) If he has been or is convicted of an offence which in the opinion of the Government, involves moral turpitude.
(2) If any question arises as to whether a disqualification has been incurred under sub-rule (1), the decision of the Government thereon shall be final.
### 8. Removal from membership.
- The Government may remove from Office any member of the Board, if in its opinion such a member has ceased to represent the interest which he purports to represent on the Board:
Provided that no such member shall be removed unless a reasonable opportunity is given to him of making any representation against the proposed action.
### 9. Vacancy.
- When a vacancy occurs or is likely to occur in the membership of the Board, the Chairman shall immediately submit a report to the Government. The Government shall then take steps to fill the vacancy aforesaid.
### 10. Staff.
- The Government may appoint a Secretary to the Board and such other as it may think necessary and may fix the salaries and allowances payable to them and specify their conditions of service.
(2) (i)
The Secretary shall be the Chief Executive Officer of the Board. He may attend the meetings of the Board but shall not be entitle to vote at such meetings.
(ii) The Secretary shall assist the Chairman in convening meetings and shall keep a record of the minutes of such meetings; and shall take necessary measures to carry out the decisions of the Board.
### 11. Traveling Allowance.
(1) The traveling allowance of an official member shall be governed by the rules applicable to him for journeys performed by him on official duties and shall be paid by the authority paying his salary.
(2) The non-official member of the Board shall be paid traveling allowance for attending the meeting of the Board at such rates as are admissible to Class I Officers of the State Government and daily allowances shall be calculated at the maximum rate admissible to Class I Officers of the State Government in their respective places.
### 12. Disposal of Business.
(1) All business shall be considered at a meeting of the Board and shall be decided by a majority of the votes of the members present and voting. In the event of an equality of votes, the Chairman shall have a casting vote.
Provided that the Chairman may, if he thinks/fit, direct that any matter shall be decided by the circulation of necessary papers and by scouring written opinion of the members.
Provided further that no decision on any question, which is referred under the preceding proviso, shall be taken, unless supported by not less than a two-third majority of the members.
(2) Voting shall ordinarily be by show of hands, but if any member asks for voting by ballot, or if the Chairman so decides, the voting shall be by secret ballot and shall be held in such manner as the Chairman may decide.
### 13. Meetings.
(1) The Board shall meet at such places and times as may be specified by the Chairman:
(2) The Chairman shall preside over every meeting of the Board at which he is present. If the Chairman is absent from any meeting, the members present shall elect one of the members to preside over the meetings and the member so elected shall at that meeting exercise all the powers of the Chairman.
### 14. Notice of meetings and list of business.
(1) Notice shall be given to every member of the time and place fixed for each ordinary meeting at least fifteen days before such meeting and each member shall be furnished with a list of business to be transacted at the meeting.
Provided that in the case of an emergent meeting, notice of at least seven days shall be given to every member.
(2) No business, which is not in the list, shall be considered at a meeting without the permission of the Chairman.
### 15. Quorum.
- No business shall be transacted at any meeting unless at least one-third of the members and at least one representative each of the industry and of employees are present.
Provided that if at any meeting less than one-third of the total number of members are present, the Chairman may adjourn the meeting to a date not later than seven days from the date of original meeting informing the members present and giving meeting notice to the other members of the Board that he proposes to dispose of the business at the adjourned meeting whether there is prescribed quorum or not and it shall there upon be lawful for him to dispose of the business at the adjourned meeting irrespective of the number of members attending.
### 16. Committees of the Board.
(1) (i)
The Board may constitute such committee and for such purposes as it may think fit.
(ii) While constituting the Committee the Board may nominate one of its members to be the Chairman of the Committee.
(2) The Committee shall meet at such times and places as the Chairman of the said Committee may decide and the Committee shall observe such rules of procedure in regard to be transaction of business at its meetings as it may decide upon.
(3) The provision of rule II shall apply to the members of the Committee for attending the meetings of the Committee as they apply to the members of the Board.
Chapter - III Registration and Licensing
### 17. Manner of making application for registration of establishments.
(1) The application referred to in sub-section (1) of section 7 shall be made in triplicate, in Form I to the registering Officer of the area in which the establishment sought to be registered is located and shall contain the particulars specified in sub-rule (2) of Rule 19.
(2) The application referred to in sub-rule (1) shall be accompanied by a treasury receipt showing payment of the fees for the registration of the establishment.
(3) Every application referred to in sub-rule (1) shall be either personally delivered to the Registering Officer or sent to him by registered post.
(4) On receipt of the application referred to in sub-rule (1) the registering officer shall after noting thereon the date of receipt by him of the application, grant an acknowledgement to the applicant.
### 18. Grant of certificate of registration.
(1) The Certificate of Registration granted under sub-section (2) of section 7 shall be in Form II.
(2) Every Certificate of Registration granted under sub-section (2) of Section 7 shall contain the following particulars namely:
(a) The name and address of the establishment;
(b) The maximum number of workmen to be employed as contract labour in the establishment;
(c) The type of business, trade, industry, manufacture or occupation, which is carried on in the establishment;
(d) Such other particulars as may be relevant to the employment of contract labour in the establishment.
(3) The registering officer shall maintain a register in Form III showing the particulars of establishments in relation to which certificates of registration have been issued by him.
(4) If in relation to an establishment, there is any change in the particulars specified in the certificate of registration, the principal employer of the establishment shall intimate to the registering officer, within thirty days from the date when such change takes place, the particulars of, and the reasons, for such change.
### 19. Circumstances in which application for registration may be rejected.
(1) If any application for registration is not complete in all respects, the registering officer shall require the principal employer to amend the application so as to make it complete in all respects.
(2) If the Principal employer, on being required by the registering officer to amend his application for registration, omits or fails to do so, the registering officer shall reject the application for registration.
### 20. Amendment of certificate of registration.
(1) Where, on receipt of the intimation under sub-rule (4) of rule 18, the registering officer is satisfied that an amount higher than the amount which has been paid by the principal employer as fees for the registration of the establishment is payable, he shall require such principal employer to deposit a sum which, together with the amount already paid by such principal employer would be equal to such higher amount of fees payable for the registration of the establishment and to produce the treasury receipt showing such deposit.
(2) Where, on receipt of the intimation referred to in sub-rule (4) of rule 18, the registering office is satisfied that there has occurred a change in the particulars of the establishment, as entered in the register in Form III, he shall amend the said register and record therein the change, which has occurred.
Provided that no such amendment shall affect anything done or any action taken or any right, obligation or liability acquired or incurred before such amendment.
Provided further that the registering officer shall not carry out any amendment in the register in Form III unless the appropriate fees have been deposited by the principal employer.
(3) The application for the amendment of a certificate of registration shall be accompanied by: -
(i) A statement indicating the nature of the amendment required;
(ii) A statement showing the change in particulars already furnished in the application for registration under rule 17 which necessitates the amendment;
(iii) A treasury receipt showing that the appropriate fee for the amendment of the certificate of registration has been paid in the local treasury; and
(iv) The certificate of registration originally issued.
(4) The fee for the amendment of the certificate of registration shall be rupees five in addition to the amount, if any, by which the fee that would have been payable, if the certificate of registration had been originally issued in the amended from exceeds the fee originally paid for the certificate of registration.
### 21. Application for a license.
(1) Every application by a contractor for the grant of a license shall be made in triplicate, in Form IV, to the licensing officer of the area in which he establishment, in relation to which he is the contractor, is located.
(2) Every application for the grant of a license shall be accompanied by a certificate by the principal employer in Form V to the effect that the applicant has been employed by him as a contractor in relation to his establishment and that he undertakes to be bound by all the provisions of the Act and the rules made thereunder in so far as the provisions are applicable to him as principal employer in respect of the employment of contract labour by the applicant.
(3) Every such application shall be either personally delivered to the licensing officer or sent to him by registered post.
(4) On receipt of the application referred to in sub-rule (1), the licensing officer shall, after noting thereon the date of receipt of the application, grant an acknowledgement to the applicant.
(5) Every application referred to in sub-rule (1) shall also be accompanied by a treasury receipt showing: -
(i) The deposit of the security at the rates specified in rule 24, and
(ii) The payment of the fees at the rates specified in rule 26.
### 22. Matters to be taken into account in granting or refusing a license.
- In granting or refusing to grant a license, the licensing officer shall take the following matters into account, namely: -
(a) Whether the applicant: -
(i) Is a minor, or
(ii) Is of unsound mind and stands so declared by a competent court, or
(iii) Is an undischarged insolvent, or
(iv) Has been convicted (at any time during a period of five years immediately preceding the date of application) of an offence which, is the opinion of the Government, involved moral turpitude;
(b) Whether there is an order of the appropriate Government or an award or settlement for the abolition of contract labour in respect of the particular type of work in the establishment for which the applicant is a contractor;
(c) Whether any order has been made in respect of the applicant under sub-section 91) of section 14, and, if so, whether a period of three years has elapsed from the date of that order;
(d) Whether the fees for the application have been deposited at the rate specified in rule 26, and
(e) Whether security has been deposited by the applicant at the rate specified in rule 24.
### 23. Grant of refusal of license.
(1) The licensing Officer shall make such enquiry, as he considers necessary to satisfy himself about the eligibility of the applicant for a license.
(2) The licensing officer shall pass orders within 60 days from the date of receipt of the application, either granting or refusing the license applied for.
(3) (i)
Where the licensing officer is of opinion that license should not be granted he shall after according reasonable opportunity to the applicant to be heard make an order rejecting the application.
(ii) The order shall record the reasons for the refusal and shall be communicated to the applicant.
(4) If no order is passed within the time specified in sub-rule (2) it shall be deemed that the license has been granted.
### 24. Security.
- Before a license is issued, an amount calculated at the rate of Rs 30 for each of the workmen to be employed as contract labour, in respect of which the application for license has been made, shall be deposited by the contractor for due performance of the conditions of the license and compliance with the provisions of the Act or the rules made thereunder.
Provided that where the contractor is a Co-operative Society, the amount deposited as security shall be at the rate of Rs 5 for each of the workmen to be employed as contract labour.
"843" - Civil deposit: - Deposit under various Central and State Acts deposit under contract labour (Regulation & Abolition) Act 1970.
### 25. Forms and terms and condition of license.
(1) Every license granted under rule 23 shall be in Form VI.
(2) Every license granted under rule 23 or renewed under rule 29 shall be subject to the following conditions; namely: -
(i) The license shall be non-transferable;
(ii) The number of workmen employed as contract labour in the establishment shall not, on any day exceed the maximum number specified in the licence;
(iii) Save as provided in these rules, the fees paid for the grant or, as the case may be, for renewal of the licence shall be non-refundable;
(iv) The rates of wages payable to the workmen by the contractor shall not be less than the rates prescribed under the Minimum Wages Act, 1948 (Central Act II of 1948), for such employment where applicable, and where the rates have been fixed by agreement, settlement or award, not less than the rates so fixed;
(v) (a)
In cases where the workmen employed by the contractor perform the same or similar kind of work as the workmen directly employed by the principal employer of the establishment, the hours of work and other conditions of service of the workmen of the contractor shall be the same as applicable to workmen directly employed by the principal employer of the establishment;
(b) In other cases the hours of the work and conditions of service of the workmen of the contractors shall be such as may be specified in this behalf by the commissioner of Labour. N.P. Explanation: - While determining the hours of work and other conditions of service under (b) above, the Commissioner of Labour shall have due regard to the hours of work and other conditions of service obtaining in similar employment.
(vi) (a)
In every establishment where fifty or more women are ordinarily employed as contract labour, there shall be provided two rooms of reasonable dimensions for the use of their children under the age of six years.
(b) One of such rooms shall be used as a playroom for the children and the other as bedroom for the children;
(c) The contractor shall supply adequate number of toys and games in the play room and sufficient number of cots and beddings in the sleeping room;
(d) The standard of construction and maintenance of the crèches shall be such as may be specified in this behalf by the Commissioner of Labour; and
(e) The licence shall notify any change in the number of workmen or the conditions of work to the licensing officer.
### 26. Fees.
(1) The fees to be paid for the grant of a certificate of registration under section 7 shall be as specified below, namely: - If the number of workmen proposed to be employed on contract on any day: -
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| --- | --- | --- |
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(a) Is 20
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Rs 20
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|
(b) Exceeds 20 but does not exceed
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50
|
50
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|
(c) Exceeds 50 but does not exceed
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100
|
100
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|
(d) Exceeds 100 but does not exceed
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200
|
200
|
|
(e) Exceeds 200 but does not exceed
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400
|
400
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|
(f) Exceeds 400
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500
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(2) The fees to be paid for the grant or renewal of a license under section 12 shall be as specified below, namely: -
If the number of workmen employed by the contractor on any day: -
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| --- | --- | --- |
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|
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Rs. P.
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(a) Is 20
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5.00
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(b) Exceeds 20 but does not exceed
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50
|
2.50
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|
(c) Exceeds 50 but does not exceed
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100
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25.00
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|
(d) Exceeds 100 but does not exceed
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200
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50.00
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|
(e) Exceeds 200 but does not exceed
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400
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100.00
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|
(f) Exceeds 400
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125.00
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### 27. Validity of the licence.
- Every licence granted under rule 23 or renewed under rule 29 shall remain in force for twelve months from the date it is granted or renewed.
### 28. Amendment of the licence.
(1) A licence granted or renewed under the Act and these rules may be amended by the Licensing Officer on an application from the contractor.
(2) the application for the amendment of a licence shall be accompanied by -
(i) A statement indicating the nature of the amendment required;
(ii) A statement showing the change in particulars already furnished in Form IV under rule 21 which necessitates the application for amendment;
(iii) A treasury receipt showing that the appropriate fee for the amendment of licence has been paid in the local treasury; and
(iv) The licence originally granted.
(3) The fee for the amendment of licence shall be five rupees plus the amount that would have been payable if the licence had originally been issued in the amended form deducting the fees originally paid for the licence.
(4) An application for the amendment of the licence shall be dealt with by the Licensing Officer in the same manner as an application for grant of licence.
(5) Where the application for amendment is refused. The licensing officer shall record the reasons for such refusal and communicate the same to the applicant.
### 29. Renewal of licence.
(1) Every contractor shall apply to the licensing officer for renewal of the licence, before its validity expires.
(2) Every such application shall be in Form VII in triplicate and shall be made not less than thirty days before the date on which the licence expires, and if the application is so made, the licence shall be deemed to have been renewed until such date when the renewed licence is issued.
(3) The fees chargeable for renewal of the licence shall be 75 per cent of the fee ordinarily payable for the grant thereof:
Provided that if the application for renewal is not received within the time specified in sub-rule (2) , a fee of 50 per cent in excess of the fee ordinarily payable for the licence shall be payable for such renewal:
Provided further that in case where the licensing officer is satisfied that the delay in submission of the application is due to unavoidable circumstances beyond the control of the contractor, he may reduce or remit as he thinks fit the payment of such excess fee.
### 30. Issue of duplicate certificate of registration or licence.
- Where a certificate of registration or a licence granted or renewed under the proceeding rules is lost, stolen, defaced or destroyed the principal employer or the contractor shall forthwith report the matter to the Registration Officer or the Licensing Officer as the case may be by whom the registration certificate or licence was issued or as the case may be last renewed and may make an application to that officer for the issue of a duplicate registration certificate or a licence.
The fee for the grant of a duplicate registration certificate/licence shall be Rs 5.
The application for the grant duplicate registration certificate/licence shall be accompanied by a treasury receipt for the above amount.
On receipt of the application, the Registration Officer or the Licensing Officer concerned shall furnish to the applicant a duplicate copy of the certificate registration/licence duly stamp `duplicate' in red ink.
### 31. Refund of security.
(1) (i)
On expiry of the period of licence the contractor may, if he does not intend to have his licence renewed, make an application to the Licensing Officer for the refund of the security deposited by him under rule 24.
(ii) If the Licensing Officer is satisfied that there is no breach of the conditions of licence or there is no order under section 14 for the forfeiture of security or any portion thereof, he shall direct the refund of the security to the applicant.
(2) If there is any order directing the forfeiture of any portion of the security, the amount to be forfeited shall be deducted from the security deposit, and balance, if any refunded to the applicant.
### 32. Grant of temporary certificate of registration and licence.
(1) Where conditions arise in an establishment requiring the employment of contract labour immediately and such employment is estimated to last for not more than fifteen days, the principal employer of the establishment or the contractor, as the case may be, may apply for a temporary certificate of registration or licence to the registering officer or the licensing officer, as the case may be, having jurisdiction over the area in which the establishment is situated.
(2) The application for such temporary certificate of registration or licence shall be made in triplicate in Form VIII and X respectively and shall be accompanied by a treasury receipt or a crossed postal order drawn in favour of the appropriate Registering or Licensing Officer, as the case may be, showing the payment of appropriate fees and in case of licence the appropriate amount of security also.
(3) On receipt of the application, complete in all respects, and on being satisfied either on affidavit by the applicant or otherwise that the work in respect of which the application has been made would be finished in a period of fifteen days and was of a nature which could not but be carried out immediately, the registering officer or the licensing officer, as the case may be, shall with in three days grant a certificate or registration in Form IX or a licence in Form XI, as the case may be, for a period of not more than fifteen days.
(4) Where a certificate of registration or licence is not granted the reasons therefore shall be recorded by the registering officer or the licensing officer, as the case may be.
(5) On the expiry of the validity of the registration certificate the establishment shall cease to employ in the establishment contract labour in respect of which the certificate was given.
(6) The fees to be paid for the grant of the certificate of registration under sub-rule (3) shall be as specified below: -
If the number of workmen proposed to be employed on contract on any day -
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| --- | --- | --- |
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Rs. P.
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(a) Exceeds 20 but does not exceed
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50
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10.00
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(b) Exceeds 50 but does not exceed
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200
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20.00
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(c) Exceeds 200
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30.00
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(7) The fees to be paid for the grant of a licence under sub-rule (3) shall be as specified below: -
If the number of written to be employed by the contractor on any day -
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| --- | --- | --- |
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Rs. P.
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(a) Exceeds 20 but does not exceed
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50
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5.00
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(b) Exceeds 50 but does not exceed
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20.00
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(c) Exceeds 500
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30.00
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(8) The provisions of rule 23 and 24 shall apply to the refusal to grant licence or to grant licence under sub-rule (4) and sub-rule (3) respectively.
Chapter - IV Appeals and Procedure
### 33. (1) (i)
Every appeal under sub-section (1) of section 15 shall be preferred in the Form of memorandum signed is the appellant or his authorized agent and presented to the Appellate Officer in person or sent to him by registered post.
(ii) The memorandum shall be accompanied by a certified copy of the order appealed from and a treasury receipt for rupees 10.
(2) The memorandum shall set forth concisely and under distinct heads the grounds of appeal to the order appealed from.
(3) Any person aggrieved by an order under section 7, 8, 12, or 14 may, within 30 days from the date on which the order is communicated to him, prefer an appeal to the Labour Commissioner Nagaland, the Appellate Officer appointed under sub-section (1) of section 15 of the Act.
### 34. (1) Where the memorandum of appeal does not comply with the provisions of sub-rule (2) of rule 33 it may be rejected or returned to appellant for the purpose of being amended within a time to be fixed by the Appellate Officer.
Where the Appellate Officer rejects the memorandum under sub-rule (1) he shall record the reason for such rejection, and communicate the order to the Appellant.
(3) Where the memorandum of appeal is in order the Appellate Offer shall admit the appeal, endorse thereon the date of presentation and shall register the appeal in a book to be kept for the purpose called the Register of Appeals.
(4) (i)
when the appeal has been admitted, the Appellate Officer shall send the notice of the appeal to the Registering Officer or the Licensing Officer as the case may be from whose order the appeal has been preferred and the Registering Officer shall send the record of the case to the Appellate Officer.
(ii) On receipt of the record, the Appellate Officer shall send a notice to be appellant to appear before him at such date and time as may be specified in the notice for the hearing of the appeal.
### 35. If on the date fixed for hearing, the Appellant does not appear, the Appellate Officer may dismiss the appeal for default of appearance of the appellant.
### 36. (i) Where an appeal has been dismissed under rule 35 the appellant may apply to the Appellate Officer for the re-admission of the appeal, and where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing, the Appellate Officer shall restore the appeal on its original number.
(ii) Such an application shall, unless the Appellate Officer extends the time for sufficient reason, he made within 30 (thirty) days of the date of dismissal.
### 37. (1) If the appellant is present when the appeal is called on for hearing, the Appellate Officer shall proceed to hear the appellant or his authorized agent and any other person summoned by him for this purpose, and pronounce judgment on the appeal, either confirming, reversing or varying the order appealed from.
(2) The judgment of the Appellate Officer shall state the points for determination, the decisions thereon and the reasons for the decisions.
(3) The order shall be communicated to the appellant and copy thereof shall be sent to the Registering Officer or the Licensing Officer from whose order the appeal has been preferred.
### 38. Payment of fees.
- Unless otherwise provided in these rules all fees to be paid under these rules shall be paid in the local treasury under the head of Account "087 Labour & Employment fees under contract Labour (Regulation & Abolition) Act, 1970 State" and a receipt obtained which shall be submitted with the application or the memorandum of appeal as the case may be.
### 39. Copies.
- Application for the copies of the order of the Registering Officer, Licensing Officer or the Appellate Officer can be obtained on payment of fees of rupees two for each order and on an application specifying the date of the order, made to the Officer concerned.
Chapter - V Welfare and Health of Contract Labour
### 40. (1) The facilities required to be provided under sections 18 and 19 of the Act, namely, sufficient supply of wholesome drinking water, a sufficient number of latrines and urinals, washing facilities and first-aid facilities shall be provided by the contractor in the case of the existing establishments within seven days of the commencement of these rules and in the case of new establishment within thirty days of the commencement of employment of contract labour therein (2) If any of the facilities mentioned in sub-rule (1) is not provided by the contractor within the period prescribed, the same shall be provided by the principal employer within seven days of the expiry of the period laid down in the said sub-rule.
### 41. Rest Rooms.
(1) In every place wherein contract labour is required to halt at night in connection with the working of the establishment to which the Act applies and in which employment of contract labour is likely to continue for 3 months or more the contractor shall provide and maintain rest rooms or other suitable alternative accommodation within fifteen days of the coming into force of the rules in the case of existing establishments, and within fifteen days of the commencement of the employment of contract labour in new establishment,
(2) If the amenity referred to in sub-rule (1) is not provided by the contractor within the period prescribed the principal employer shall provide the same within a period of fifteen days of the expiry of the period laid down in the said sub-rule.
(3) Separate rooms shall be provided for women employees.
(4) Effective and suitable provisions shall be made in every room for securing and maintaining adequate ventilation by the circulation of fresh air and there shall also be provided and maintained sufficient and suitable natural or artificial lighting.
(5) The rest room or rooms or other suitable alternative accommodation shall be of such dimensions so as to provide at least a floor area of 1.1 sq. metre for each person making use of the rest room.
(6) The rest room or rooms or other suitable alternative accommodation shall be so constructed as to afford adequate protection against heat, wind, rain and shall have smooth, hard and impervious floor surface.
(7) The rest room or other suitable alternative accommodation shall be at a convenient distance from the establishment and shall have adequate supply of wholesome drinking water.
### 42. Canteens.
(1) In every establishment to which the Act applies and wherein work regarding the employment of contract labour is likely to continue for six months and wherein contract labour numbering one hundred or more are ordinarily employed, an adequate canteen shall be provided by the contractor for the use of such contract labour within sixty days of the date of coming into force of the rules in the case of the existing establishments and within 60 (sixty) days of the commencement of the employment of contract labour in the case of new establishments.
(2) If the contractor falls to provide the canteen within the time laid down, the same shall be provided by the principal employer within sixth days of the expiry of the time allowed to the contractor.
(3) The canteen shall be maintained by the contractor or principal employer, as the case may be, in an efficient manner.
### 43. (1) The canteen shall consist of at least a dining hall, kitchen, store room, pantry and washing places separately for worker's and for utensils.
(2) (i)
The canteen shall be sufficiently lighted at all times, when any person has access to it.
(ii) The floor and inside walls shall be made of smooth and impervious materials and inside walls shall be lime-washed or colour-washed at least once in each year:
Provided that the inside walls of the kitchen shall be lime-washed at every intervals.
(3) (i)
The precincts of the canteen shall be maintained in a clean and sanitary condition;
(ii) Waste water shall be carried away in suitable covered drains and shall not be allowed to accumulate so as to cause a nuisance;
(iii) Suitable arrangements shall be made for the collection and disposal of garbage;
(iv) The canteen building shall be situated not less than 15.2 metres from any latrine, urinal or any other source of dust, smoke or obnoxious fumes:
### 44. (1) The dining hall shall accommodate at a time at least 30 per cent, of the contract labour working at a time.
(2) The floor area of dining hall, excluding the area occupied by the service counter and any furniture except tables and chairs shall be not less than one square metre per dinner to be accommodated as prescribed in sub-rule (1).
(3) (i)
A portion of the dining hall and service counter shall be partitioned off and reserved for women workers, in proportion to their number;
(ii) Washing places for women shall be separate and screened to secure privacy.
(4) Sufficient tables, stools, chairs or benches shall be available for the number of dinners to be accommodated as prescribed in sub-rule (1).
(5) (i)
Wash basins with the adequate water supply shall be provided in the dinning hall for the use of the workers.
(ii) Soaps and towels shall be provided at the washing places in the dining hall.
### 45. Equipment.
(1) (i)
There shall be provided and maintained sufficient utensils, crockery, cutlery, furniture and any other equipment necessary for the efficient running of the canteens;
(ii) Suitable clean clothes for the employees serving in the canteen shall also be provided and maintained.
(2) (i)
The furniture utensils and other equipment shall be maintained in a clean and hygienic condition.
(ii) A service counter, if provided shall have a top of smooth and impervious materials.
(iii) Suitable facilities including an adequate supply of hot water shall be provided for the cleaning of utensils and equipment.
### 46. Foodstuffs to be served.
- The foodstuffs and other items to be served in the canteen shall be in conformity with the normal habits of the contract labour.
### 47. Prices to be displayed.
- The charge per portion of foodstuff, beverages and any other items served in the canteen shall be based on no profit no loss and shall be conspicuously displayed in the canteen.
### 48. The canteen shall be run on "no profit no loss" basis provided that the following items should not be taken into consideration as expenditure, namely: -
(a) The rent for the land and buildings: -
(b) The depreciation and maintenance charges for the building and equipments provided for in the canteen;
(c) The cost of purchase repairs and replacement of equipments including furniture, crockery, cutlery and utensils;
(d) The water charges and other charges incurred for lighting and ventilation;
(e) The interest on the amounts spent on the provision and maintenance of furniture and equipment provided for in the canteen.
### 49. The books of accounts, registers and other documents used in connection with the running of the canteen shall be produced on demand to an Inspector.
### 50. The accounts pertaining to the canteen shall be audited once in every 12 months by chartered accountants and auditors.
### 51. Latrines and Urinals.
- Latrines shall be provided in every establishment coming within the scope of the Act on the following scale, namely: -
(a) Where females are employed, there shall be at least one latrine for every 25 females;
(b) Where males are employed, there shall be at least one latrine for every 25 males:
Provided that where the number of males or females exceeds 100, it shall be sufficient if there is one latrine for every 25 males or females, as the case may be, upto the first 100, and one for every 50 thereafter.
### 52. Every latrine shall be under cover and so partitioned off as to secure privacy, and shall have a proper door and fastenings.
### 53. (i) Where workers of both sexes are employed, there shall be displayed outside each block of latrine and urinal a notice in the language understood by the majority of the workers "For Men Only" or "For Women Only", as the case may be.
(ii) The notice shall also bear the figure of a man or of a woman, as the case may be.
### 54. There shall be at least one urinal for male workers upto 50 and one for female's workers upto fifty employed at a time:
Provided that where the number of male or female workmen, as the case may be, exceeds 500 it shall be sufficient if there is one urinal for every 50 males or females upto the first 500 and one for every 100 or part thereof thereafter.
### 55. (1) The latrines and urinals shall be conveniently situated and accessible to workers at all times at the establishment.
(2) (i)
the latrines and urinals shall be adequately lighted and shall be maintained in a clean and sanitary condition at all times.
(ii) Latrines and urinals other than those connected with a flush sewage system shall comply with the requirements
### 56. Where piped water supply is available, a sufficient number of water taps conveniently accessible shall be provided in one near the latrines and urinals and where there is no continuous supply of water, water cistern with cans shall be provided for washing purpose in or near such latrines and urinals.
Washing Facilities
### 57. (1) In every establishment coming within the scope of the Act adequate and suitable facilities for washing shall be provided and maintained for the use of contract labour employed therein.
(2) If female workers are employed, separate washing facilities shall be provided and so enclosed or screened that the interiors are not visible from any place where males work or pass. The entrance to such facilities shall bear conspicuous notice in English "For women only". The notice shall bear a picture of a woman.
(3) Such facilities shall be conveniently accessible and shall be kept in clean and hygienic condition.
(4) The washing facilities shall include the provision of adequate number of buckets and tumblers or mugs and water supply at the rate of 20 litres a day for each workman employed.
First-Aid Facilities
### 58. In every establishment coming within the scope of the Act there shall be provided and maintained so as to be readily accessible during all working hours first-aid-boxes at the rate of not less than one box or 150 contract labour or part thereof ordinarily employed.
### 59. (1) The first-aid-box shall be distinctively marked with a red cross on a white ground and shall contained the following equipment, namely: -
(A) For establishment in which the number of contract Labour employed does not exceed fifty each first-aid-box shall contain the following equipment: -
(i) 6 small sterilized dressings.
(ii) 3 medium size sterilized dressings.
(iii) 3 large size sterilized dressings.
(iv) 3 large size sterilized burn dressings
(v) 1 (30-ml.) bottle containing salvotatile having the dose and mode administration indicate on the label.
(vi) 1 (30-ml.) bottle containing a two percent alcoholic solution of Iodine.
(vii) Snake bite lancet.
(viii) 1 (30-gms.) bottle of potassium permanganate crystals.
(ix) 1 pair of scissors.
(x) 1 copy of the first-aid leaflet issued by the Director, General, Factory Advice Service and Labour Institutes, Government of India.
(xi) A bottle containing 100 tablets (each of 5 grains) of aspirin.
(xii) Ointment for burns.
(xiii) A bottle of suitable surgical anti-septic solution.
(xiv) Eye drops.
(xv) Six roller bandages of 10 c.m. wide.
(xvi) Six roller bandages of 5 c.m. wide.
(xvii) Six triangular bandages.
(B) For establishment in which the number of contract labour exceeds fifty each first-aid box contains the following equipment, namely: -
(i) 12 small sterilized dressings
(ii) 6 medium size sterilized dressings.
(iii) 6 large size sterilized burn dressings
(v) 6 (15-gms.) packets sterilized cotton wool.
(vi) 1 (60-ml.) bottle containing salvolatile having the dose and mode of administration indicated on the label.
(vii) 1 (60-ml.) bottle containing a two percent alcoholic solution of Iodine.
(viii) 1 roll of adhesive plaster.
(ix) A snakebite lancet.
(x) 1 (30-gms.) bottle of potassium permanganate crystals.
(xi) I pair of scissors.
(xiii) A bottle containing 100 tablets (each of 5 grains) of aspirin.
(xiv) Ointment for burns.
(xv) A bottle of a suitable surgical anti-septic solution.
(xvi) Eye drops.
(xvii) Twelve roller bandages of 10 c.m. wide.
(xviii) Twelve roller bandages of 5 c.m. wide.
(2) Adequate arrangement shall make for immediate recoupment of the equipment when necessary.
### 60. Nothing except the prescribed contents shall be kept in the First-Aid-Box.
### 61. The First-Aid Box shall be kept in charge of a responsible person who shall always he readily available during the working hours of the establishment.
### 62. A person in-charge of the First-Aid Fox shall be a person trained in First-Aid treatment, in establishment where the number of contract labour employed is 150 or more.
Chapter - VI Wages
### 63. The contractor shall fix wage periods in respect of which wages shall be payable.
### 64. No wage period shall exceed one month.
### 65. Wages of every worker shall be paid within three days from the end of the wage period in case the wage period is one week or a fortnight in all other cases before the expiry of the tenth of the seventh day from the end of the wage period according as the number of workers employed in such establishments does or does not exceed a thousand.
### 66. Where employment of any worker is terminated by or on behalf of a contractor, the wages earned by him shall be paid before the expiry of the second working day from the day on which his employment is terminated.
### 67. All payments of wages shall be made on a working day at the work site and during the working time and on a date notified in advance. In case the work is completed before the expiry of the wage period, final payment shall be made within 48 hours of the last working day.
### 68. Wages due to every worker shall be paid to him direct or to other person authorized by him in this behalf.
### 69. All wages shall be paid in current coin or currency or in both.
### 70. Wages shall be paid without any deductions of any kind except those specified by the State Government by general or special order in this behalf or permissible under the Payment of Wages Act, 1936 (Central Act 4 of 1936).
### 71. A notice showing the wage period and the place and time of disbursement of wages shall be displayed at the place of work and a copy sent by the contractor in the Principal Employer under acknowledgement.
### 72. The Principal Employer shall ensure the presence of his authorized representative at the place and time of disbursement of wages by the contractor to workmen and it shall be the duty of the contractor to ensure the disbursement of wages in the present of such authorized representatives.
### 73. The authorized representative of the Principal Employer shall record under the signature a certificate at the end of the entries in the Register of Wages or the Wage-Cum-Muster Roll, as the case may be, in the following form: -
Chapter - VIII Registers and Records and Collection of Statistics
### 74. Register of contractors.
- Every principal employer shall maintain in respect of each registered establishment a register of contractors in Form XII.
### 75. Register of persons employed.
- Every contractor shall maintain in respect of each registered establishment where he employees contract labour a register in Form XIII.
### 76. Employment Card.
- (i) Every contractor shall issue a employment card in Form XIV to each worker within three days of the employment of the worker.
(ii) The card shall be maintained upto date and any change in the particulars shall be entered therein.
(iii) The contractor shall ensure that his workers produce their employment cards when coming to duty and take them back when leaving duty.
### 77. Serving Certificate.
- On termination of employment for any reason whatsoever the contractor shall issue to the workman whose services have beer terminated a Service Certificate in Form XV.
### 78. Muster Roll, Wages Registers, Deduction Register and overtime Register.
(1) In respect of Establishments which are governed by the Payment of Wages Act, 1936 (Central Act 4 of 1936), and the rules made thereunder, or the Minimum Wages Act, 1948 (Central Act 11 of 1948) (Central Act 4 of 1936), and the rules made thereunder, or the Minimum Wages Act, 1948 (Central Act 11 of 1948) and the rules made thereunder, the following register and record required to be maintained by the contractor as employer under those Acts and the rules made thereunder shall be deemed to be registers and records to be maintained by the contractor under these rules:
(a) Muster Roll;
(b) Register of Wages;
(c) Register of Deductions;
(d) Register of Overtime;
(e) Register of fines;
(f) Register of advances;
(2) In respect of establishment not covered under sub-rule (1), the following provisions shall apply, namely: -
(a) Every contractor shall maintain a Muster Roll Register and a Register of Wages in Form XVI and Form XVII respectively:
Provided that a combined muster roll-cum-wages register in Form XVIII shall be maintained by the contractor where the wage period is one week or less.
(b) Every contractor shall issue wages slips in Form XIX to the workers at last a day prior to the disbursement of wages.
(c) Signature or thumb-impression of every worker on the register of wages or wages-cum-muster roll, as the case may be, shall be obtained and entries therein shall be authenticated by the initials of the contractor or his representative, and duly certified by the authorized representative of the Principal Employer as required by rule 72.
(d) Registers of deductions, fines and advance: - Registers of deductions for damage or loss, Register of fines and Register of advances shall be maintained by every contractor in Forms XX, XXI and XXII respectively.
(e) Register of overtime: - Register of overtime shall be maintained by every contractor in Form XXIII to record therein number of hours and wages paid for overtime work, if any.
(3) Notwithstanding anything contained in these rules, where a combined or alternative form is sought to be used by the contractor to avoid duplication of work for compliance with the provisions of any other Act or the rules framed thereunder or any other laws or regulations or in cases where
### 79. Every contractor shall display an abstract of the Act and rules in English and in the language spoken by majority of the workers and in such form as may be notified by the Government.
### 80. (1) All registers and other records required to be maintained under the Act and rules, unless otherwise provided for, shall be kept at an office or the nearest convenient building within the precincts of the workplace or at a place within a radius of three kilometers.
(2) Such registers shall be maintained legibly in a list or in the Language spoken by the majority of the workers.
(3) All the registers and other records shall be preserved in original for a period of three calendar years from the date of last entry therein.
(4) All the registers, records and notices maintained under the Act or rules shall be produced on demand before the Inspector or any other authority under the Act or any person authorized in that before by the Government.
### 81. (1) (i)
Notices showing the rates of wages, hours of work, wage periods, date of payment of wages, names and addresses of the Inspectors having jurisdiction, and date of payment of unpaid wage, shall be displayed in English and in the language spoken by the majority of the workers in conspicuous places at the establishment and the work site by the principal employer or the contractor, as the case may be (ii) The notice shall be correctly maintained in a clean and legible condition.
(2) A copy of the notice shall be sent to the Inspector and whenever any changes occur the same shall be communicated to him forthwith.
### 82. (1) Every contractor shall send half yearly return in Form XXIV (in duplicate) so as to reach the Licensing Officer concerned not later than 30 days from the close of the half year.
Explanation: - Half year for the purpose of this rule mean "a period of 6 (six) months commencing from the 1 st January and the 1st July of every year".
(2) Every principal employer of a registered establishment shall send annually a return in Form XXV (in duplicate) so as to reach the Registering Officer concerned not later 10th February following the end of the year to which it relates.
### 83. (1) The Board, Committee, Labour Commissioner or the Inspector or any authority under the Act shall have powers to call for any information or statistics in relation to contract labour from any contractor or principal employer at any time by any order in writing.
(2) Any person called upon to furnish the information under sub-rule (1) shall be legally bound to do so.
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65b9543eab84c7eca86e8e05 | acts |
State of Himachal Pradesh - Act
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The Himachal Pradesh Land Revenue (Fees for Inspection & Copies of Extracts from Patwari's records Rules, 1980
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HIMACHAL PRADESH
India
The Himachal Pradesh Land Revenue (Fees for Inspection & Copies of Extracts from Patwari's records Rules, 1980
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Rule THE-HIMACHAL-PRADESH-LAND-REVENUE-FEES-FOR-INSPECTION-COPIES-OF-EXTRACTS-FROM-PATWARI-S-RECORDS-RULES-1980 of 1980
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* Published on 7 May 1980
* Commenced on 7 May 1980
The Himachal Pradesh Land Revenue (Fees for Inspection & Copies of Extracts from Patwari's records Rules, 1980
Published Vide Notification No. 10-9/69-Revenue-A. Dated Shimla-171002, the 7th May, 1980.
Government of Himachal Pradesh
Revenue Department
In exercise of the powers conferred by clause (d) of sub-section (1) of Section 168 of the H P. Land Revenue Act, 1953 (Act
No. 6 of 1954
) and all other powers enabling him in this behalf and in supersession of Notification No. 10-9/69-Rev.-A, dated the 28th, May, 1979 the Financial Commissioner Himachal Pradesh makes the following rules prescribing the fees for inspection and for copies or extracts from records maintained by the Patwari:-
### 1. These rules may be called the H P. Land Revenue (Fees for Inspection and Copies or Extracts from Patwaris Records) Rules,1980
(2) They shall come into force with effect from 18.4.1980.
### 2. (1) The Patwari shall allow any person interested to inspect his records and to take notes therefrom in pencil in his presence He shall give to applicants certified extracts and enter in his diary a note of the, inspections allowed and extracts given The following fee shall be charged in each case:-
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A - Copies or Extract From
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1.
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Jamabandi including extracts called for by courts or officers
in connection with the preparation of yields.
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60 paise per khatauni holding upto 8 holdings and above of
abstracts that number 15 paise for every additional holding.
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2.
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Inspection notes attached to Jamabandis.
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(a) For the first 200 words or under Rs 1.15 paise(b) For
every additional 100 words or fraction thereof 60 paise
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3.
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Fard Bardar.
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4.
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Copy of Pending mutation.
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5.
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Interrogatories in pending mutations.
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6.
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Counterfoil of mutation sheets.
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7.
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List of phats and Ghasnis (grazing plots) attached to the
settlement records of rights of each estate in the Kulu district.
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8.
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Misal Haquiat.
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As for SI No. 1.
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9.
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Fard Haqiat consisting of names of proprieters (or occupancy
tenants), total number of fields, area, land revenue, and rates
and cesses.
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A fixed charge of 60 paise irrespective of the number of
Khewats.
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10.
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List of co-sharers of proprietory or occupancy holdings.
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Rs. 1.15 paise for each application,
|
|
11.
|
Geneological trees of land holders, occupancy tenants or
muquarridars.
|
]
|
AS Sl.No. 2 above Rs
|
|
12.
|
Statement of wells and other sources of irrigation.
|
|
13.
|
List of pensions and assignments.
|
|
14.
|
Wajib-ul-arz:-
|
|
|
(a) Naqsha Haqua Jandrat wa panchoki.
|
|
1.15 paise for each application provided that each
application shall be limited to not more than two harvests. (No
fees being charged if copies are required for recovery of arrears
of land revenue).
|
|
|
(b) Fard Bachh or Dhal Bachh (Asamiwar).
|
|
|
|
(c) Demand statement (Canal).
|
|
Rs 1.15 paise for each application.
|
|
15.
|
Tariqua bachh and
|
]
|
As for SI. No. 2.
|
|
16.
|
Orders of Settlement Officers.
|
|
17.
|
Khasra Girdawari including extracts from Khasra Girdawari
called for by courts or officers in connection with the
preparation of 5 yearly abstracts of yields.
|
|
60 paise for entries in a single volume relating to one field
and 30 paise for each additional field.
|
|
18.
|
Diaries.
|
|
60 paise for each entry made on one subject on any one date.
|
|
19.
|
Field Books.
|
|
60 paise for first ten fields or under and 30 paise for every
additional 4 fields or part thereof.
|
|
20.
|
Statement of grazing dues
|
]
|
Rs 1.15 paise for each application no fees being charged if
copies are required by Lambardars for recovery of arrears of
grazing dues and chaukidara tax.
|
|
21.
|
Extracts from chaukidar's assessment list.
|
|
22.
|
Statement containing in village note book.
|
|
60 paise per statement irrespective of years.
|
|
23.
|
Abstract of guinquenial average of mutations.
|
|
Rs 2.25 per statement.
|
|
24.
|
Parcha Books.
|
|
Cost price of the book plus 15 paise per khatauni holding.
|
|
B-Inspections
|
|
25.
|
Inspection of papers relating to one quinquenial including
relevant entries of the mutation registers.
|
|
Fixed charge of Rs. 1.15 paise for each inspection.
|
|
C-Preparation Of Plans & Tracings
|
|
26.
|
Tracing of field map.
|
|
15 paise for each field upto 32 fields and 30 paise for every
additional 4 fields subject to a minimum charge of 60 paise.
|
|
27.
|
Tracing of Tatima Shajra.
|
|
15 paise for each field upto 32 fields and 30 paise for every
additional 4 fields subject to a minimum charge of 60 paise.
|
|
28.
|
Preparation of plans called for by courts or officers in
connection with civil and revenue suits.
|
|
15 paise for each field upto 32 fields and 30 paise for every
additional 4 fields subject to a minimum charge of 60 paise.
|
(2) For the purpose of fee for copies or extracts from Jamabandi in rent cases, the total number of Khatauni holdings should be token into account irrespective of the fact whether they are cultivated by the owner himself or by tenant or sub-tenant and in calculating the fee the number of khewats of which the extracts are given may be ignored.
Provided that the fee in respect of extracts under serial No. 17 and plans under S. No. 28 prepared in connection with the temporary alienation of land in satisfaction of a decree of a civil court shall not exceed Rs 10/- in a single case irrespective of the fact whether the extracts are prepared from a Jamabandi or register of Khasra Girdawari or both and whether or not they involve the preparation of a plan.
Provided further that a list of co-sharers shall not be prepared and supplied without the previous sanction of the Collector unless required in connection with a revenue, civil or criminal case.
(3) In the case of inspection of Patwaris record by the Sub-Inspectors or Inspectors of the Co-operative societies under S. No 24 the fee shall be 50 paise only.
(4) Fraction of a rupee less than 50 paise shall be rounded off to fifty paise while fractions in excess of 50 paise shall be rounded off to one rupee.
### 3. The fee realised shall be credited into Govt, treasury half yearly under the Head "029-Land Revenue Misc. Copying and Inspection Fee of Patwaris Records."
### 4. Patwaris shall not prepare and supply copies or extracts of papers not shown in the above table.
### 5. (1) No fee for doing work for the State Government, such as the preparation of an extract from the revenue records to show the property owned by an abscounding criminal, shall be charged. Patwaris shall however, not be required to furnish such an extract without a special order of the Deputy Commissioner in each case, and such an order shall only be passed if the case is of real importance
(2) Copies required for public purposes by Public Officer of the Central or State Government as defined in section 2(17) of the Code of Civil Procedure shall be supplied free of charge.
(3) The Patwari is forbidden to give copies except on lithographic forms which are supplied to him. On the top of each of these forms the words "Receipt No." shall be printed. The number of the receipt handed over by the Patwari to the applicant shall invariabily be entered by the Patwari. Where the entry receipt number is not printed on the form, the patwari shall record this entry in his own hand and insert therein relevant receipt number. He shall note in red ink in the copy of the Jamabandi entry required by rule 15 of the rules under the H P. Tenancy and Land Reforms Act, all mutations affecting the Khatauni holding which have been attested subsequent to the preparation of the Jamabandi
(4) The accounts of fee realised by Patwaris shall be kept in the register in form P-XII given in appendix-A, which will be supplied to them. The Field Kanungo shall check the register every month when he goes to the Patwaris circle and shall sign it in token of his having done so. The Tehsildar or the Naib-Tehsildar shall also check it when inspecting the Patwari's work. During September, when the Patwari comes to the tehsil, he shall bring register with him for check by the Tehsil Wasil-baqi-Nawis
(5) The Patwari shall be supplied with a printed receipt book in triplicate in which every amount realised by him shall be recorded. One foil shall be handed over to the payee and the second sent to the tehsil Wasil-baqi-nowis through the Field Kanungo with the half-yearly, demands statements. As soon as the receipt book is exhausted, the Patwari shall return the counterfoil to the Office Kanungo and obtain from him a new receipt book in exchange.
### 6. (1) Any person wishing to obtain certified copies of revenue records from the Patwari by value payable post (VPP) may apply to the Patwari for this purpose giving sufficient intimation to enable the Patwari to make out the copy, provided a post office is located within the circle of the Patwari. The application need not bear any court-fee stamps. Only one application would suffice for any number of copies asked for. The Patwari shall supply the required copies through value payable post (VPP) within four days of the receipt of application and shall levy the followina charges in addition to those already prescribed under the rules for preparing copies of revenue records:
(i) Postage charges by weight for the packet containing copies of revenue records to be sent;
(ii) Value payable post (V.P.P.) charges;
(iii) Registration fee; and
(iv) Fifty Paise as remuneration for inconvenience and extra work caused to him.
(2) The charges mentioned in clause (i)to(iv) of sub-rule (1)of this rule shall be deemed as "other charges" under section 103 of the H.P. Land Revenue Act, 1953 and, as such, shall be recoverable as arrears of Land Revenue when the packet containing copies of revenue records sent by value payable post, is refused by an applicant
### 7. (1) Each Patwari shall have at a time only one receipt book bearing printed book and receipt number and only one copying fee register.
(2) A requisition form, as in the case of cheque books shall be pasted in the printed receipt book, to enable the Patwari to communicate his demand to the Office Kanungo, well in time, so that as soon as the receipt book is exhausted, the former shall return the counterfoils to the latter and obtain from him a new receipt book in exchange which shall contain a certificate from the Tehsildar that the receipt book contains so many certified number of pages, which are numbered in proper consecutive order
(3) The Office Kanungo of the tehsil concerned shall be held personally responsible for the issue of receipt books and copying fee registers to Patwaris. The Patwaris shall submit a report one month ahead through, the Field Kanungo of the circle, who shall verify the report of the Patwari and send it to the Tehsildar concerned. The Tehsildar shall order tho Office Kanungo to issue the copying fee register/receipt book to the Patwari after satisfying himself that the ones issued previously have been actually exhausted and deposited with him and that accounts in this behalf have also been rendered by the Patwari
(4) In case the Patwari sends the exhausted register to tehsil Office Kanungo earlier than September before it is checked by the Wasil-baqi-Nawis, the tehsil Office Kanungo shall hand over the said register to the patwar concerned in the month of September, when he (Patwari) comes to the Tehsil for filing the annual and quinquennial statements and Jamabandis in the tehsil land records office, and the latter shall then get it checked by the Wasil-Baqi-Nawis and return the same to the Office Kanungo
(5) The Patwari shall also retain a copy of the entries of Register, made after the despatch of the last half-yearly demand on account of copying and inspection fee, to the Tehsildar, to enable him to prepare the demand for the next half year.
(6) A copying fee register shall be issued only after a certificate has been recorded on it by a Revenue Officer to the effect that it contains so many pages and has been issued under his signatures with the seal of the court.
(7) The Office Kanungo shall keep a clear record of "Book Numbers" of the receipt books issued to each Patwari.
(8) The tehsil Office Kanungo shall maintain a ledger account for each Patwari in which shall be recorded the number of receipt books issued to the Patwari and the number of receipts issued by the Patwari every half year. The latter information can be had from the second foil of receipts received by the Wasil-Baqi-Nawis through the Field Kanungo with the half-yearly demand statements While pesting receipt numbers in the ledger, and gap in numbers shall be investigated immediately
### 8. (1) The Patwari shall enter in his diary (a) the field numbers and Khatas of which an extract applied for relates, (b) the fees charged for the extract, and (c) the name of person from whom charged. Inspecting officers shall verify from time to time by enquiry from the parties concerned whether the sums entered in the diary were actually paid.
(2) Copies of the schedules of rates to be charged for extracts etc., shall be printed in Hindi and distributed and broadcast in every village. The schedule shall also contain a note to the effect that the applicant may insist on obtaining a receipt from the Patwari for the amount paid and should see that the receipt number is given on the copy supplied to him, and that any person who is required to pay for work for which no fee is prescribed in or to make any excess payment may report the matter to the Tehsildar.
(3) A printed copy of the schedule shall also be exhibited-at Patwarkhanos, tehsils, panchayat-ghars, village schools and other places of public resort.
(4) If a Patwari fails to supply a copy of the revenue records or charges a fee in excess of the prescribed rate, disciplinary action shall be taken against him.
### 9. (1) Each Patwari shall prepare a statement showing the fees realised from first April to 30th September and submit it to the Field Kanungo of his circle by the 10th of October He shall prepare a similar statement for the period first October to 31st March and send it on to the Field Kanungo by the 10th April. These statements shall show the name of the village and the amount of fee recoverable during each month of the two periods noted above together with the total of the circle When submitting these statements, the Patwari shall note in the register maintained by him under the rules, the dates of their submission together with the period to which they relate The Field Kanungo shall prepare a consolidated statement by villages giving the total of his circle and submit it to the tehsil Wasil-baqi-Nawis by the end of October and April each year. The tehsil Wasil-baqi-Nawis shall see that the amount deposited by the Patwari at the end of each month tallies with these statements.
(2) On receipt of these statements the tehsil Wasil-baqi-Nawis shall prepare, in duplicate, a consolidated statement of the whole tehsil and submit it through the Sadar-Wasil-baqi-Nawis to the Collector for sanction so as to reach his office on the 15th November and 15th May, at the latest. After obtaining the necessary sanction, the Sadar-Wasil-baqi-Nawis shall note the demand in his register and return the duplicate copy of the statement to the Tehsildar by the end of November and May, at the latest. These statements shall be attached to the quistbandi as demand statements of copying and inspection fees of Patwaris records.
(3) The half-yearly demand statements together with the receipt referred to in rule 7(1) shall be destroyed after three years, while the books of counterfoils referred to in the same rule shall be destroyed after one year in the presence of the Tehsildar. The consolidated demand statement for the whole tehsil that forms a part of the qistbandi, will be destroyed alongwith the latter i.e. when the new settlement is sanctioned .
### 10. Repeal and Savings.
(1) Rule 71 of the Punjab Land Revenue Rules as applied to Himachal Pradesh vide notification No. R. 81-18/49/7 dated the 9th February, 1949 and as in force in the areas added to Himachal Pradesh vide section-5 of the Punjab Re-organisation Act, 1966 shall stand repealed.
(2) Notwithstanding the repeal of rule 71 aforesaid, anything done or any action taken or any fee charged under the said rule shall be deemed to have been done, taken or charged under these rules.
(P P. Srivastava)
Secretary (Revenue) to the
Government of Himachal Pradesh
Appendix-A
Form P-XII (Rule 5(4) Register showing the amount of fee realised for inspection of records and grant of certified extracts thereof.
| | | | | | |
| --- | --- | --- | --- | --- | --- |
|
Serial No. as given in the village diary
|
Name of village
|
Date
|
Name of Applicant
|
Whether the application was presented by the
applicant personally or received by post
|
Nature of paper of which copy or inspection is
desired
|
|
1
|
2
|
3
|
4
|
5
|
6
|
|
|
| | |
| --- | --- |
|
Details of work
|
|
|
Khatauni No.(Sr. No. 1 & 2)
|
No. of works (S. No. 3)
|
Field Nos. (S. Nos. 4, 6, 8, 9, 10)
|
Date of entry (S. No. 5)
|
No. of Inspection (S. No. 7)
|
Amount of fee realised by the Fee applicant
personally
|
|
7
|
8
|
9
|
10
|
11
|
12
|
|
|
| |
| --- |
|
Amount of fee of extracts by VPP supplied
|
|
Fee
|
Postage charges
|
V.P.P. Charges
|
Registration fee
|
Remuneration for inconvenience and extra work to
the Patwari at 0.50 paise
|
Total of Columns 13 to 17
|
No. & date of V.P. letter
|
|
13
|
14
|
15
|
16
|
17
|
18
|
19
|
|
|
| | | | | | |
| --- | --- | --- | --- | --- | --- |
|
No. of receipt given by the Patwari to the
applicant in acknowledgement of amount of fee
|
Signature of Patwari
|
Signature of Kanungo
|
Date of receipt of amount of V.P.P. entered in
column 20
|
Amount certified to Govt. with date and dakhila
No.
|
Remarks and attestation of W.B.N. And other
officers
|
|
20
|
21
|
22
|
23
|
24
|
25
|
|
|
N.B. The serial Nos. referred to in columns 7-11 refer to the serial Nos. in the table given in paragraph 3.48 of H.P. Land Records Manual.
Scale of Mutation Fees in H.P.
Government of Himachal Pradesh
Revenue Department
No 10 9/69 Revenue A Doted Shimla 2 7th May 1980
Notifications
In supersession of the Himachal Pradesh Government Notification No 10-9/69-Rev A dated 28th May, 1979 and in exercise of the powers conferred by Sub-section (1) of section 39 of the Himachal Pradesh Land Revenue Act, 1953 (Act
No. 6 of 1954
) and all other powers enabling him in this behalf, the Governor, of Himachal Pradesh is pleased to fix the following scale of mutation fees for the purpose of that item/section with effect from 18th April, 1980 -
| | |
| --- | --- |
|
Name of item [Section
|
Scale of fee
|
|
1.
|
when the entry related to the acquisition of a right or
interest a registered deed or by a decree or order of a court by
an order of revenue officer making or affirming a partion under
chapter IX of the land revenue Act, or directing the
incorporation in the record of a private partition
|
A fee of 0.40 paise shall be charged on each proprietary
holding.Provided that where the land revenue does not exceed
Rs. 5/- the fees shall be 0.25 paise only.
|
|
2.
|
When the entry relates to the acquisition of a right or
interest by inheritance
|
10 paise per rupee on the Revenue assessed.Provided that
when the Revenue does not exceed Rs. 5/- the fee shall be 45
paise and when the Revenue exceed Rs. 5/- but does not exceed Rs.
25/- the fee shall be 75 paise. Provided further that in these
cases not more than one fee shall be charged on the acquisition
in one and the same Village of a right or interest in one and the
same capacity although entries may have been made in more than
one proprietary holdings.
|
|
3.
|
When the entry relates to the acquisition of a right or
interest not otherwise provided for in paragraphs 1 and 2 above
|
10 paise per rupee of the Revenue assessed on each proprietary
holding.Provided that when the Revenue of any proprietary
holding does not exceed Rs 5./- the fee on that holding shall be
Rs. 1/- and when the Revenue exceeds Rs. 5/-but does not exceed
Rs 20/- the fee shall be Rs 1.50 paise.
|
### 4. The above fee shall be charged on all mutations whether accepted or rejected Provided that the attesting officer may remit the fee on any rejected mutation when in his opinion it would not be proper to recover it from the person in whose favour the mutation was entered.
### 5. Two-fifths of the fee charged shall be paid to the Patwari making the entry in the register, the balance being credited to Government ###
6. In any case in which the fee payable under the foregoing provisions is found to be excessive in amount with reference to the value of the right or interest transferred or for any other reason, the Commissioner may either remit the fee or reduce it to such amount as he deems to be reasonable.
### 7. Notwithstanding anything Contained in the preceding paragraphs, no fees shall be charged in respect of entries relating to the acquisition of a right or interest by the Bhudan Yagna Board or the Bhudan holder under the Himachal Pradesh Bhudan Yagna Act, 1954 (Act No 2 of 1956) or by inheritance the property of any person, in any of the naval, military or air forces of the Union of India. (a) who is killed on active service in the Second World War; or
(b) who receives a wound or is involved in an accident or contracts a disease while on such service and dies within twelve months as a result of such wound accident or disease.
sd.
(P.P.Srivastava)
Secretary (Revenue) to the Government of
Himachal Pradesh
|
65ba34c6ab84c7eca86ead04 | acts |
Bengal Presidency - Act
-------------------------
The Bengal Patni Taluks Regulation, 1820
------------------------------------------
BENGAL PRESIDENCY
India
The Bengal Patni Taluks Regulation, 1820
==========================================
Act 1 of 1820
---------------
* Published on 11 January 1820
* Commenced on 11 January 1820
The Bengal Patni Taluks Regulation, 1820
Bengal Regulation 1 of 1820
[11th January, 1820.]
A Regulation for providing that all sales of certain taluks made answer-able by sale for arrears of the zamindar's rent shall be conducted in the mode prescribed by Regulation 8, 1819, for the sales therein described.
### 1. Preamble.
- Whereas it has been omitted to provide in the rules of Regulation 8, 1819, whether, in case the proprietor of an estate paying revenue to Government should desire to bring to sale a saleable tenure of the nature defined in clause first, section 8, of that Regulation, for the realization of arrears of rent due thereupon, by any legal process other than that prescribed by the second and third clauses of the said section, such sale should be made in the public manner provided for the periodical sales therein described;
And whereas it is consonant with justice, and was intended by the said Regulation, that, in every case of the sale of such tenures for arrears of the zamindar's rent, the sale should be public, for the security of the interests of the owner of the tenure sold, which object can in no manner be duly secured except the sales to be so made be conducted by an officer of Government in the same manner as the periodical sales provided for by section 8 of the said Regulation;
the following additional rule has accordingly been passed by the Governor General in Council, to take effect, from the date of its promulgation, within the several districts of Bengal, including Midnapore:-
### 2. First. - Rules of Regn. 8, 1819, for periodical sales for zamindar's arrears of rent extended to other sales for rent.
- Whenever the proprietor of an estate paying revenue to Government shall desire to cause any tenure of the nature of those described in clause first, section 8, Regulation 8, 1819, to be sold for arrears of rent due to him on account thereof, and shall, under any summary process authorised by [law]
[Word substituted for the words 'the general Regulations' by Act 1 of 1903.]
have acquired the right of causing such sale to be made, the same shall be conducted, after application from the zamindar, by the Registrar or acting Registrar of the Zilla [\* \* \* \* \*]
[Words 'or City,' omitted by Act 1 of 1903.]
Court, or, in his absence, by the person in charge of the office of Judge of the district in the mode prescribed by Regulation 8 above quoted for periodical sales.
Second. - Notice by proclamation. - Ten days' notice shall be given before proceeding to sale, by proclamation to be stuck up at the cutcherry of the Court and at that of the Collector of the district.
Third. - Rules extended to sales hereunder. - The rules of sections 9, 11, 13, 15, and 17, Regulation 8, 1819, are extended to all sales made after the manner herein provided.
|
65b96ed5ab84c7eca86e9169 | acts |
British India - Act
---------------------
The North- Western Provinces And Oudh Act, 1890
-------------------------------------------------
BRITISH INDIA
India
The North- Western Provinces And Oudh Act, 1890
=================================================
Act 20 of 1890
----------------
* Published on 1 January 1890
* Commenced on 1 January 1890
An Act to provide for the better administration of the North Western Provinces and Oudh and to amend certain enactments in force in those Provinces and in Oudh.
WHEREAS it is expedient to provide for the better administration of the territories respectively administered by the Lieutenant Governor of the North-Western Provinces and the Chief Commissioner of Oudh, and for that purpose to amend certain enactments which are in force in the said Provinces and in Oudh;
It is hereby enacted as follows:-
### 1. Title.
This Act may be called the North- Western Provinces and Oudh Act, 1890 .
Part I – THE NORTH-WESTERN PROVINCES
--------------------------------------
### 2. This Part shall come into force on such day 1 as the said Lieutenant- Governor may, by notification in the Official Gazette, direct. 3 an Commencement of Part I. 3 and 4. Commencement of Part I.[ Amendment of Act 19 of 1873 .]
Rep. by the United Provinces Land- revenue Act, 1901 (U. P. Act 3 of 1901 ). And whereas it has been determined to annex the Jhansi Division, comprising the districts of Jhansi, Jalaun and Lalatpur, to the Allahabad Division; And whereas the said Jhansi Division is a Schedule District under the Scheduled Districts Act, 1874 (14 of 1874 ); 2 And whereas it is expedient that the law in force in the same division should, on such annexation, be the same as the law in force in the temporarily- settled districts comprised in the Allahabad Division, and that the said division should cease to be a Scheduled District;
### 1. The 1st April, 1891, see North- Western Provinces and Oudh Gazette, 1891, Pt. I, p. 130. 2. Since rep. by the A. O. 1937. It is hereby enacted as follows:--
### 5. Laws in force in certain districts of the Allahabad Division to apply to Jhansi.
(1) All enactments which shall on the day 1 when this Part comes into force be in force in the said temporarily- settled districts and not in the said Jhansi Division shall be deemed to come into force in that Division on and from the said day.
(2) Except the Jhansi Encumbered Estates Act, 1882 2 (16 of 1882 ), and the Jhansi and Morar Act, 1886 3 , (17 of 1886 ), all enactments which shall on the said day 1 be in force in the said division and not in the said temporarily- settled districts, including the Jhansi Courts Act, 1867 (18 of 1867 ), and Act No. 27 of 1867 , shall be deemed to be repealed on and from the said day 1 in the said division.
### 6. [ Amendment of Act 16 of 1882 .]
Rep. by the Bundelkhand Encumbered Estates Act, 1903 (U. P. Act 1 of 1903 ).
### 7. Discharge of functions assigned to Deputy Commissioner and Commissioner by Act 17 of 1886 .
The functions assigned to the Deputy Commissioner and the Commissioner by the Jhansi and Morar Act, 1886 , 3 (17 of 1886 ), shall be discharged by the District Judge and the High Court respectively, and references to Courts in the Jhansi district subordinate to the Commissioner shall be deemed to apply to the Civil Courts established in that district under the Bengal, 4 North- Western Provinces and Assam Civil Courts Act, 1887 (12 of 1887 ).
### 8. Jhansi Division to cease to be a Scheduled District.
(1) On and from the said day 1 the said division shall cease to be a Scheduled District 5.
### 9. Application of Act 12 of 1887 to Jhansi, and disposal of pending cases. 6
(2) All cases or proceedings pending in any Civil Court in the said division on the said day 1 shall be disposed of as follows:--
(a) if pending in the Court of a Tahsildar or of an Assistant Commissioner of the second class-- by the Munsif;
### 1. That is, the 1st April, 1891. 2. Since rep. by the Bundelkhand Encumbered Estates Act, 1903 (U. P. 1 of 1903 ). 3. Rep. by Act 42 of 1953. 4." Agra" has been subs. for" North- Western Provinces" by Act 16 of 1911. 5. The second clause of sub- section (1) , and sub- section (2) were rep. by Act 1 of 1938, s. 2 and Sch. 6. Sub- section (1) rep., ibid. (b)
if pending in the Court of an Assistant Commissioner of the first class- by the Subordinate Judge;
(c) if pending in the Court of a Deputy Commissioner-- by the District Judge;
(d) if pending in the Court of the Commissioner-- by the District Judge, unless the case pending is an appeal from a decree or order of the Deputy Commissioner, in which case the appeal shall be disposed of by the High Court.
(3) For the purposes of sections 20 to 22, both inclusive, of the Bengal, 1 North- Western Provinces and Assam Civil Courts Act, 1887 (12 of 1887 ), all decrees and orders passed by Civil Courts in the said division and not appealed against before the said day 2 shall be deemed--
(a) if passed by the Court of a Tahsildar or an Assistant Commissioner of the second class-- to have been passed by a Munsif;
(b) if passed by the Court of an Assistant Commissioner of the first class-- to have been passed by a Subordinate Judge;
(c) if passed by the Court of a Deputy Commissioner or the Commissioner-- to have been passed by a District Judge.
(4) Where any Civil Court ceases by reason of the passing of this Act to have jurisdiction with respect to any case, any proceeding in relation to that case which, if that Court had not ceased to have jurisdiction, might have been had therein, may be had in the Court to which the business of the former Court is transferred by sub- section (2); but this sub- section shall not apply to cases for which provision is made in section 623 or section 649 of the Code of Civil Procedure. (14 of 1882 ).
(5) In the case of appeals from the decrees and orders mentioned in sub- section (3) the period of limitation shall be calculated in accordance with the provisions of section 15 of the Jhansi Courts Act, 1867 4 (18 of 1867 ), as though this Act had not been passed.
Part II – OUDH
----------------
### 10. Commencement of Part II.
This Part shall come into force on such day 5 as the Chief Commissioner of Oudh may, by notification in the Official Gazette, direct.
### 1. " Agra" has been subs. for" North- Western Provinces" by Act 16 of 1911. 2. That is, the 1st April, 1891. 3. See now the Code of Civil Procedure, 1908 (5 of 1908 ). 4. Act 18 of 1867 rep. by s. 5 (2) of this Act. 5. 1st January, 1891, see the North- Western Provinces and Oudh Gazette, 1890, Pt. I, p. 661. ###
11.
Board of Revenue of the North- Western Provinces to be the Board of Revenue- of, and Chief Revenue- authority in, Oudh.
(1) On and from the day on which this Part comes into force the Board of Revenue constituted under the North- Western Provinces Land- revenue Act, 1873 , 1 (19 of 1873 .) shall be deemed to be also the Board of Revenue for the territories administered by the Chief Commissioner of Oudh, and shall be known and designated as the Board of Revenue of the North- Western Provinces and Oudh. 2
(2) All references made in any enactment as amended by this Part to the Board of Revenue shall be deemed, so far as they relate to Oudh, to refer to the said Board.
(3) In any enactment for the time being in force in the territories administered by the Chief Commissioner of Oudh, in which the expression" Chief Revenue- authority" or" Chief Controlling Revenue- authority" is used, the expression shall, subject to the provisions of any enactment passed after the said day, 3 be construed, so far as the said territories are concerned, as referring to the Board of Revenue of the North- Western Provinces and Oudh. 2
### 54. Pending appeals. All appeals pending when this Part comes into force 5 from decrees or orders passed under the same Act shall be disposed of as if this Act had not been passed:
### 1. Since rep. by the U. P. Land- revenue Act, 1901 (U. P. 3 of 1901 ), s. 2, but not so as to affect anything done under Act 19 of 1873, see s. 3. 2. Now the Board of Revenue of the U. P. 3. 1st January, 1891, see the North- Western Provinces and Oudh Gazette 1890, Pt. I, p. 661. 4. These sections amended certain Central Acts:-- Ss. 12 to 34..... Act 17 of 1876. S. 35....... Act 18 of 1876 and 14 of 1878. Ss. 36 and 37..... Act 4 of 1878. S. 38....... Act 3 of 1879. Ss. 39 to 42..... Act 13 of 1879. S. 43....... Act 22 of 1881. Ss. 44 to 53..... Act 22 of 1886. They have been repealed as follows:-- Ss. 12 to 16, 18 to 27 and 32 to 34 by U. P. Act 3 of 1901; Ss. 17, 35, 48 and 50 by Central Act 12 of 1891; Ss. 28 to 31 by U. P. Act 3 of 1899; Ss. 36 and 37 by U. P. Act 5 of 1894; Ss. 39 to 42 by U. P. Act 4 of 1925; Ss. 38, 44 to 47, 49 and 51 to 53 by Central Act 1 of 1938; and S. 43 by Central Act 12 of 1891. 5 That is, the 1st January, 1891. Provided that the 1 State Government] may, by order, transfer to the District Judge any appeals then pending before the Commissioner or Collector in cases in which the appeal will, under the Oudh Rent Act, 1886 , (22 of 1886 .) as amended by this Part, lie to the District Judge.
Part III – THE NORTH-WESTERN PROVINCES AND OUDH
-------------------------------------------------
### 62. Commencement of Part III.
This part shall come into force on such day 3 as the Lieutenant- Governor of the North- Western Provinces and Chief Commissioner of Oudh may, by notification in the Official Gazette, direct.
### 63. Place where the Board may sit.
(1) Notwithstanding anything 4 in section 128 of the Oudh Rent Act, 1886 (22 of 1886 ), the Board of Revenue of the North- Western Provinces and Oudh shall, for the disposal of cases under those Acts, sit in such place or places in the North- Western Provinces or Oudh as 5 the State Government] may, by notification in the Official Gazette, 6 appoint in respect to cases under either of those Acts.
(2) For the disposal of cases other than those referred to in sub- section (1) the said Board may, subject to the orders of 5 the State Government], sit in any place in the North- Western Provinces or Oudh that the Board thinks fit.
### 64. [ Amendment of section 4, Act 19 of 1873 .] Rep. by the United Provinces Land- revenue Act, 1901 (U. P. Act 3 of 1901 ).
### 1. Subs. by the A. O. 1937 for" Chief- Commissioner". 2. Ss. 55 to 60 amended Act 22 of 1886 and s. 61 amended Act 9 of 1881. Ss. 55 and 57 to 61 were rep. by Act 1 of 1938 and s. 56 by Act 12 of 1891. 3. 1st January, 1891, see the North- Western Provinces and Oudh Gazette, 1890, Pt. I, p. 661. 4. Section 63, so far as it relates to Act 12 of 1881, that is the words" in s. 152 of the North- Western Provinces Rent Act, 1881, or" were rep. by the Agra Tenancy Act, 1901 (U. P. 2 of 1901 ). 5. Subs. by the A. O. 1937 for" the said Lieutenant- Governor and Chief Commissioner". 6. For notification declaring that the Board of Revenue may sit at the head- quarters of any district of the United Provinces, see U. P. Local Rules and Orders .
|
65bab691ab84c7eca86ec626 | acts |
NCT Delhi - Act
-----------------
The Delhi Prevention of Food Adulteration Rules, 2002
-------------------------------------------------------
DELHI
India
The Delhi Prevention of Food Adulteration Rules, 2002
=======================================================
Rule THE-DELHI-PREVENTION-OF-FOOD-ADULTERATION-RULES-2002 of 2002
-------------------------------------------------------------------
* Published on 9 April 2002
* Commenced on 9 April 2002
The Delhi Prevention of Food Adulteration Rules, 2002
Published vide Notification No. F. 1(5) /93/PFA/Enf.25-30, dated 9th April, 2002, published in the Delhi Gazette, Extraordinary, Part 4, dated 9th April, 2002
In exercise of the powers conferred by Section 24 of the Prevention of Food Adulteration Act, 1954 (Central Act 37 of 1954) read with Government of India Ministry of Health notification No. F-9-3/55-D, dated the 1st June, 1955 and after consultation with the Committee for Food Standards and after previous publication, the Lieutenant Governor of the National Capital Territory of Delhi hereby makes the following rules, namely:-
### 1. Short title and commencement.
(1) These rules may be called the Delhi Prevention of Food Adulteration Rules, 2002.
(2) They shall come into force with effect from the [date]
[Came into force on 10.4.2002, except clause (vi) of rule 2 and rule 5, vide Notification No. F. 1 (5)/93-PFA/Enf./19-24, dated 9th April, 2002.]
notified by Government in the Official Gazette :
Provided hat different date may be fixed for he enforcement of provisions for grant of licenses under these rules.
### 2. Definitions.
(1) In these rules, unless the context otherwise requires,-
(i) "Act" means the Prevention of Food Adulteration Act, 1954 (Central Act 37 of 1954);
(ii) "Central Rules" means the Prevention of Food Adulteration Rules, 1955 framed by the Central Government under Section 23 of the Act;
(iii) "Delhi" means the National Capital Territory of Delhi;
(iv) "Directorate" means the Directorate of Prevention of Food Adulteration of the Government;
(v) "Government" means the Lieutenant Governor of the National Capital Territory of Delhi appointed by the President under article 239 and designated under Article 239AA of the Constitution;
(vi) "licensing authority" means an officer or officers of the Municipal Corporation of Delhi or the New Delhi Municipal Council or the Delhi Cantonment Board, who is/are appointed and notified by the Government to be the licensing authority for the respective areas assigned to them;
(vii) "Official Gazette" means the Official Gazette of National Capital Territory of Delhi;
(viii) "section" means the section of the Act.
(2) Words and expressions used but not defined in these rules and defined in the Act and the Central Rules shall have the meanings as respectively assigned to them in the Act and the Central Rules.
### 3. Powers and duties of the Food (Health) Authority.
- The Food (Health) Authority shall exercise and perform the duties as detailed below, namely:-
(i) To be responsible for general superintendence of the administration and enforcement of the Act and the rules framed thereunder.
(ii) To grant consent for instituting prosecution of an offence as required under Section 20.
(ill) To advise the government, whenever called upon to do so in matters relating to the administration and enforcement of the Act.
(iv) To prohibit the sale or manufacture for sale, storage for sale or distribution for sale of any food article in the interest of public health in the whole of the National Capital Territory of Delhi or any part thereof by notification, for such periods a may be specified therein.
(v) To control and supervise the operations of the Public Health Laboratories maintained by the Directorate of Prevention of Food Adulteration, the public analysts, subordinate and local authorities, the licensing authorities, the local (health) authorities, the food inspector implementing and any other agency or agencies enforcing the provisions of the Act and the rules framed thereunder.
(vi) To give such directions as it considers appropriate, having regard to the matter connected with the enforcement of the Act and the rules framed thereunder, to the public analysts, the licensing authorities, the local (health) authorities in the National Capital Territory of Delhi to be complied with.
(vii) To arrange training of the public analysts, the local (health) authorities and the food inspectors.
(viii) To interact with consumer organizations to create public awareness about the food safety and quality or misbranding of food articles.
(ix) To delegate any of his functions to the subordinate and local authorities, in which case these authorities shall work under the supervision, guidance and control of the Food (Health) Authority.
### 4. Power and duties of the Local (Health) Authority.
- The Local (Health) Authority shall exercise and perform the duties as detailed below, namely:-
(i) To be responsible for day-to-day administration and enforcement of the Act.
(ii) To receive from the food inspector and keep in his safe custody of Part II and Part III of the samples and the memorandum in Form VII prescribed under the Central Rules.
(iii) To be responsible for complying with requirements of Rule 9B of the Central Rules.
(iv) To be responsible for arranging the second examination as and when a request for the same has been made under sub-section (2E) of Section 13 of the Act.
(v) To be responsible to comply with the requisition made by the Court under sub-section (2A) of Section 13 of the Act.
(vi) To be responsible to retain third part of the sample till the certificate from the Director, Central Food Laboratory has been received under Section 13(2C) of the Act.
(vii) To send acknowledgment, (if authorised to acknowledge the nomination from companies) to the company and the employee named in the request with copies to all such authorities to whom copies are required to be sent under the orders of the Food (Health) Authority within seven days of the receipt of the requests.
(viii) To comply with the directions of the Food (Health) Authority.
(ix) To issue slips as per the requirements of Clause (c) of Rule 16 of the Central Rules,
(x) To supervise the investigation of offences under the Act.
### 5. Licences.
(1) Any one desiring to manufacture or distribute or deal in any food article shall make an application to the appropriate licensing authority having jurisdiction in this regard in Form A along with an affidavit and a copy of the documents disclosing the constitution of the applicant and the names and addresses of the persons responsible for conduct of the business.
(2) Every person desirous of obtaining the license shall pay a fee at a rate indicated in Schedule I to these rules. The licence fee shall be paid in the form of Demand Draft drawn in the name of DDO (PFA) in the Directorate of the Prevention of Dood Adulteration, Government of National Capital Territory of Delhi.
(3) The acknowledgment of the application form when issued by the licensing authority on expiry of thirty days shall be deemed to be the licence, when application form, complete in all respects, has been filed with the licensing authority and nothing adverse has been heard from the licensing authority within said period of thirty days :
Provided that the licenisng authority may within thirty days from the date on which the application was filed in his office call for such information as is declared to be essential in the application for this purpose and on the failure of the applicant to furnish those details the licensing authority shall be at liberty to reject the request for grant of licence.
(4) Every such person who claims to be a deemed licensee under sub-rule (3) of this rule shall be required to prove his status whenever it becomes necessary to do so.
(5) Every licensee or deemed licensee shall be required to observe conditions of the licence, which are prescribed by the Food (Health) Authority from time to time and published in the Official Gazette.
(6) The licensing authority may after giving an opportunity of being heard to the licensee or deemed licensee, cancel this licence if it comes to a conclusion that there has been violation of conditions of licence or deemed licence, apart from taking any other legal action the Act.
### 6. Fees.
(1) The fees payable for the grant of licence to manufacture or distribute or deal in food articles at the commencement of these rules shall be such as are shown in the Schedule I.
(2) The Food (Health) Authority may with the prior approval of the Government modify the rates of fees by amending the Schedule I.
(3) The fees for analysis of the food article received from a consumer/consumer organisation shall be one thousand rupees-and shall be payable by Demand Draft or cash to the DDO (PFA) in Directorate.
(4) The fees for analysis of the food article received form the traders whenever analysis of the same in the Food Laboratory maintained by the Directorate of Prevention of Food Adulteration is allowed by the Food (Health) Authority shall be five thousand rupees per item and shall be payable in advance through Demand draft or cash to the DDO (PFA) in the Directorate.
(5) The Food (Health) Authority shall be empowered to refund the fees whenever so required under the third proviso to the Section 12 of the Act.
### 7. Realisation of fines.
- All fines imposed and realised by the court under Section 16 or by any other authority shall be credited to the Consolidated fund of the National Capital Territory of Delhi as revenue receipts of the Directorate of the Prevention of Food Adulteration Government of National Capital Territory of Delhi.
### 8. Repeal and saving.
(1) The Delhi Prevention of Food Adulteration Rules, 1956 shall stand repealed form the date of the commencement of these rule:
Provided that-
(i) such repeal shall not affect the previous operation of the said rules, or notification or order made, or anything done, or any action taken, thereunder;
(ii) any proceedings under the said rules pending at the commencement of these rules, shall be continued and disposed of, as far as may be, in accordance with the provisions of these rules, I as if such proceedings were under these rules.
(2) Nothing in these rules shall be construed as depriving any person to 1 whom these rules apply, or any right of appeal which had accrued to him under the rules, notification or orders in force before the commencement of these rules.
(3) An appeal pending at the commencement of these rules against an order made before such commencement shall be considered and order thereon shall be made, in accordance with these Rules, as if such order were made and the appeal were preferred under these rules.
(4) As from the commencement of these rules any appeal or application for review against any orders made before such commencement shall be preferred or made under these rules, as if such orders were made under these rules :
Provided that nothing in these rules shall be construed as reducing any period of limitation for any appeal or review provided by any rule in force before the commencement of these rules.
I
---
[See rule 5(2) and 6(1) and 6(2)]
Scale of Fee For Grant/renewal of Licence
| | | |
| --- | --- | --- |
|
S. No.
|
Trade
|
Licence Fee Per Annum in Rupees
|
|
I.
|
Manufacturer
|
|
|
1.
|
Edible Vegetable oils, fats, Vanaspati/Margarine and allied
products mills (mfg. For wholesale).
|
5000.00
|
|
2.
|
Rotary Ghani/Expeller (for retail sale).
|
2000.00
|
|
3.
|
Roller flour mills for manufacturing of atta, maida, suji
etc.
|
8000.00
|
|
4.
|
Flour mills fitted with stone grinder for manufacturing of
atta, maida, etc. (Manufacturing for wholesale).
|
5000.00
|
|
5.
|
Flour mills fitted with stone grinder for manufacturing of
atta, besan, etc., for grinding only or/and retail sale.
|
1000.00
|
|
6.
|
Rice/Powa/Dal/Besan mills.
|
5000.00
|
|
7.
|
Spices and condiments grinding and packing for wholesale.
|
3000.00
|
|
8.
|
Spices and condiments grinding only/packing for retail sale.
|
1000.00
|
|
9.
|
Sugar mills including manufacturer of cube sugar/icing sugar.
|
8000.00
|
|
10.
|
Khandsari/bura/misri.
|
2000.00
|
|
11.
|
Jaggery manufacturer.
|
1000.00
|
|
12.
|
Confectionary (sugar boiled confectionary toffee etc.).
|
2000.00
|
|
13.
|
Bakery and bakery products (manufacturing for wholesale).
|
5000.00
|
|
14.
|
Bakery and bakery products (manufacturing for retail sale).
|
1000.00
|
|
15.
|
(i) Carbonated/aerated water/non-alcoholic beverages.
|
5000.00
|
|
|
(ii) Carbonated/aerated water/non-alcoholic beaverages (banta
type).
|
1000.00
|
|
16.
|
(i) Ice-cream/Ice-candy/Frozen desert and similar products.
|
5000.00
|
|
|
(ii) Factories having less than 50 trollies.
|
2000.00
|
|
17.
|
Ghee/Milk Powder/Butter oil/Khoya/Paneer/Cheese/ Flavoured
Milk/Yogart/Chakka/Cream/Condensed milk/ infant milk substitute
and allied products for wholesale.
|
5000.00
|
|
18.
|
Milk dairy including Ghee/Butter/Cream/Paneer/Khoya/
Flavoured milk and allied products for retail sale.
|
2000.00
|
|
19.
|
Food colours/flavours/Gelatin/Honey/Preservatives/ Artificial
sweeteners/other food additives.
|
5000.00
|
|
20.
|
Tea/Coffee/Cocoa/Chicory.
|
5000.00
|
|
21.
|
Silver Leaf (edible) .
|
2000.00
|
|
22.
|
Edible salt/Iodised salt/Rock salt etc.
|
100.00
|
|
23.
|
Starchy foods (arrowroot, sago, high/hingra compound
asafoetida).
|
1000.00
|
|
24.
|
Pan masala/pan flavoured/catechu/zarda/chewing
tobacco/sweetened supari and allied product.
|
5000.00
|
|
25.
|
Fresh juice of fruit, vegetable, sugarcane etc. for retail
sale.
|
200.00
|
|
26.
|
Namkeen manufacturing for wholesale.
|
2000.00
|
|
27.
|
Namkeen/savouries for retail sale.
|
1000.00
|
|
28.
|
Manufactures not specified above.
|
2000.00
|
|
II.
|
Hotel/restaurant/Eialwai
|
|
|
1.
|
Halwai shop (Including Namkeens savouries for retail sale).
|
1000.00
|
|
2.
|
Hotel Dealing in prepared or ready to serve food :
|
|
|
|
(i) Five Star Hotel (Deluxe).
|
10000.00
|
|
|
(ii) Five Star Hotel.
|
8000.00
|
|
|
(iii) Four Star Hotel.
|
6000.00
|
|
|
(iv) Three Star Hotel.
|
5000.00
|
|
|
(v) Other hotels including boarding house serving food.
|
2000.00
|
|
|
(vi) Banquet halls, with or without restaurant.
|
3000.00
|
|
3.
|
Air conditioned restaurants/halwai shop.
|
3000.00
|
|
4.
|
Restaurants/Ealing house/Mobile food vans/Canteens (Non air
conditioned).
|
500.00
|
|
5.
|
Caterers.
|
3000.00
|
|
6.
|
Workshop of Hotels/Restaurant/Boarding House/Halwai
shop/Caterers/other eating-house. Situated in premises other
than the premises for which licence is applied for.
|
1000.00
|
|
III.
|
Wholesalers of One or More Items of Following Including
Commission Agents Wholesaler-Cum-Retailer
|
3000.00
|
|
1.
|
Oil & Fats, Vanaspati/Margarine and allied products.
|
|
|
2.
|
Spices & Condiments.
|
|
|
3.
|
Ice cream, Ice candy, etc.
|
|
|
4.
|
Flours.
|
|
|
5.
|
Sweetening agents like sugar, etc.
|
|
|
6.
|
Confectionary and bakery products.
|
|
|
7.
|
Sweets & Namkeen, Savouries, etc.
|
|
|
8.
|
Tea, coffee, etc.
|
|
|
9.
|
Pan masala, katha, supari, etc.
|
|
|
10.
|
Milk & milk products.
|
|
|
11.
|
Aerated water.
|
|
|
12.
|
Food colour, flavours & Food additives.
|
|
|
13.
|
Alcoholic Beverages.
|
|
|
14.
|
Salt.
|
|
|
15.
|
Dry Fruits.
|
|
|
16.
|
Silver Leaf.
|
|
|
17.
|
Food Grains/pulses.
|
|
|
18.
|
Other food articles not stated above.
|
|
|
IV.
|
Cold Storage Centres & Warehouse
|
5000.00
|
|
V.
|
Godown
|
1000.00
|
Note.-(1) The late fee will be charged @ 10% of the original fee per month upto six months and thereafter @ 20% per month.
(2) The licence fee for temporary stallholders at festivals/exhibition/fair etc. for a period of one month or part there of shall be charged (10% of the annual fee subject to minimum of Rs. 10%.
Form A
[See rule 6(1) ]
Application for Grant/Renewal of Licence Under Rule 5 of Delhi Pfa Rules, 2002
(To be filled in triplicate)
To
The Licenisng Authority
Area................
Sir,
I hereby apply for grant/renewal of PFA Licence as per details given below:
### 1. (i) Name and address of the Establishment.......... (ii)
Address of Premises for which licence is required.......
(a) ........
(b) ........
(c) ........
### 2. Purpose (i) Manufacturing of food articles. (ii)
Distribution of food articles and
(iii) Deal in food articles (iv) others...
(Delete whichever is not applicable)
### 3. Name(s) of food articles(s) to be manufactured/sold/stored/ distributed, etc......... ###
4. Status of the establishment, i.e., Proprietorship/Partnerships/ Society/Company etc...............
(Add copy of Partnership Deed/Laws & Bye-laws of Society/Memorandum/Article of association of Company).
### 5. Category of trade for which licence is required (see note 1).............. ###
6. The amount of Rs........ in cash receipt/Treasury challan No....... Dated for the fees for licence as per the Schedule I is enclosed herewith.
### 7. Particulars of person(s) responsible for conduct of Business. | | | | | |
| --- | --- | --- | --- | --- |
|
S. No.
|
Name
|
Father’s/ Husband’s Name
|
Address
|
Status in applicant’s firm
|
|
1.
|
|
|
|
|
|
2.
|
|
|
|
|
|
3.
|
|
|
|
|
I/We hereby undertake to scrupulously comply with the requirements, licensing conditions and other provisions of Prevention of Food Adulteration Act, and Central/Delhi PFA Rules, 2002 and carry out all the instructions that may be issued by the Central Government/Food (Health) Authority/Local (Health) Authority and the Licensing Authority from time to time to regulate the manufacture/sale/storage, etc., of the food articles.
I am also enclosing further all the documents as mentioned below:
The statements made herein and documents enclosed are true to the best of my knowledge and belief and if found to be incorrect or false, licence is liable to be cancelled.
Date......
Place.....
Signature of the Applicant
Complete name and address of the establishment...........
### 1. Category of Trade (To be filled in Column No. 8) (i) Manufacturing for wholesale.
(ii) Manufacturing for retail sale.
(iii) Wholesaler/Wholesaler-cum-Retailer/Commission agent.
(iv) Hotels/Restaurants/Boarding House/Halwai shop/Ceterers/ Banquet Hall..:
(a) Five Star Hotel (Deluxe)
(b) Five Star Hotel
(c) Four State Hotel
(d) Three Star Hotel
(e) Other Hotels including boarding house/Non A/c. serving foods
(f) Restaurant/Halwai Shop (Please specify A/c Non-A/c)
(g) Canteen/Mobile Van/Other eating house.
(h) Caterers.
(i) Banquet hall with or without Restaurant.
(j) Workshop of Hotels/Restaurant/Boarding House/Halwai Shop/Caterers/Banquet Hall/Other eating house, situated in premises other than the premises for which license is applied for.
(v) Mobile and Stationary motor van engaged in selling food articles with registration number.
(vi) Cold storage Centre/warehouse/godown.
(vii) Others viz.,
Following documents shall be enclosed with the application :
(i) Proof of the ownership or possession of the Premises by the applicant.
(ii) Photocopy of the Partnership Deed/Memorandum and Articles of Association or the Certificate of incorporation, etc.
(iii) Three attested copies of the passport size photographs of the applicant.
(iv) Copy of the nomination, if any, accepted by Local (Health) Authority, Delhi,
(v) An affidavit as per Proforma.
Acknowledgment for Grant/Renewal of Licence
Received an application for grant/renewal of licence from M/s ... address on..........
For Licensing Authority
Note.-If the applicant has complied with statutory requirements and furnished prescribed documents and has not heard anything to the contrary from the.licensing Authority within thirty days of the date indicated above this acknowledgment shall be construed as a deemed licence under the provisions contained in Clause (iii) of Rule 5 of the Delhi Prevention of "Food Adulteration Rules, 2002.
|
65ba4297ab84c7eca86eadc4 | acts |
Greater Bengaluru City Corporation - Act
------------------------------------------
Bangalore Metropolitan Region Development Authority Act, 1985
---------------------------------------------------------------
BENGALURU
India
Bangalore Metropolitan Region Development Authority Act, 1985
===============================================================
Act 39 of 1985
----------------
* Published on 30 March 1984
* Commenced on 30 March 1984
Bangalore Metropolitan Region Development Authority Act, 1985
(Karnataka Act No. 39 of 1985)
Last Updated 2nd December, 2019
Statement of Objects and Reasons - (Act 39 of 1985). - There is no proper co-ordination among the local bodies like Bangalore Development Authority, Bangalore Water Supply and Sewerage Board, Karnataka State Road Transport Corporation, Karnataka Electricity Board. Karnataka Slum Clearance Board, Bangalore City Corporation, etc., in the Bangalore Metropolitan Area. It is necessary to coordinate the activities of these bodies by constituting an authority. There is also an urgent need to step up the Authority in view of the growing problems of un-planned Development, Housing, Water Supply, Transport, etc.,
Hence this Bill.
(Published in the Karnataka Gazette (Extraordinary) Part IV- 2A , dated 30th March,1984 as No.199)
Statement of Objects and Reasons - (Amending Act 8 of 2005). - It is considered necessary to amend the Bangalore Metropolitan Region Development Authority Act, 1985, to confine the jurisdiction of the Bangalore Metropolitan Development Authority to Bangalore urban and rural districts by deleting Malur taluk of Kolar district from Bangalore Metropolitan region.
Hence the Bill.
(LA Bill No.1 of 2005)
Statement of Objects and Reasons - (Amending Act 16 of 2010). - On the recommendation of the Legislative Committee on papers to be laid on the floor of the House, it is considered necessary to amend section 16 of the Bangalore Metropolitan Region Development Authority Act, 1985 (Karnataka Act 39 of 1985) to provide for placing of Audited Accounts and the report of the Auditor of the Authority before both the Houses of State Legislature.
Hence the Bill.
[L.A. Bill No. 1 of 2009, File No.DPAL 8 Shasana 2006]
[Entry 8 of List II of the Seventh schedule to the constitution of India.]
Statement of Objects and Reasons - (Amending Act 05 of 2017). - It is considered necessary to amend the Bangalore Metropolitan Region Development Authority Act, 1985 (Karnataka Act 39 of 1985) to change the nomenclature of the some posts or Authorities representing the Authority, in the interest of Administration.
Hence, the Bill.
[L.A. Bill No.33 of 2016 File No. Samvyashae 29 Shasana 2016]
[entry 5 of List II and entry 20 of List III of the Seventh Schedule to the Constitution of India]
(First published in the Karnataka Gazette Extraordinary on the Twenty-ninth day of October 1985).
(Received the assent of the Governor on the Eighteenth day of October, 1985)
An Act to provide for the establishment of an authority for the e purpose of planning, co-ordinating and supervising the proper and orderly development of the areas within Bangalore Metropolitan Region and to provide for matters connected therewith.
Whereas it is expedient to provide for the establishment of an authority for the purposes of planning, co-ordinating and supervising the proper and orderly development of the area within the Bangalore Metropolitan Region and to provide for matters connected therein;
Be it enacted by the Karnataka State Legislature in the Thirty-sixth Year of the Republic of India as follows:-
Chapter I
Preliminary
--------------------------
### 1. Short title and commencement.
(1) This Act may be called the Bangalore Metropolitan Region Development Authority Act, 1985.
(2) It shall come into force on such [date]
[This Act has come into force w.e.f. 01.02.1986 by notification No. HUD 54 TTP 86 dated: 24.01.1986 Text of the notification is at the end of the Act.]
1 as the State Government may, by notification in the official Gazette appoint.
### 2. Definitions.
- In this Act, unless the context otherwise requires,-
(a) "Authority" means the Bangalore Metropolitan Region Development Authority constituted under section 3 ;
(b) "amenity" incudes roads, bridges, streets, transport, lighting, water and electricity supply, sewerage, drainage public works, open spaces recreational grounds, parks, and other conveniences, services or utilities;
(c) "Bangalore Metropolitan Region" means the area comprising the Bangalore District and [Bangalore Rural District]
[Substituted by Act 8 of 2005 w.e.f. 23.03.2005.]
and such other areas as the State Government may, from time to time, by notification, specify;
(d) "Chairman" means the Chairman of the Authority;
(e) [ "Corporation" means the Bruhat Bangaluru Mahanagara Palike;]
[Substituted by Act 5 of 2017 w.e.f. 04.01.2017.]
(f) "development" with its grammatical variations means the carrying out of building, engineering or other operations in or over or under any land or the making of any material change in any building or land or in the use of any building, or land and includes redevelopment and forming of layouts and sub-division of any land including amenities;
(g) "Executive Committee" means the Executive Committee constituted under section 6;
(h) "Fund" means the Bangalore Metropolitan Region Development Authority Fund;
(i) "land " includes benefits arising out of land and things attached to the earth or permanently fastened to anything attached to the earth;
(j) "local authority" [the Bruhat Bangalore Mahanagara Palike]
[Substituted by Act 5 of 2017 w.e.f. 04.01.2017.]
the Bangalore Development Authority, the Bangalore Water Supply and Sewerage Board, a Sanitary Board, [the Karnataka Power Transmission Corporation Limited]
[Substituted by Act 5 of 2017 w.e.f. 04.01.2017.]
the Karnataka Electricity Board, the Karnataka Road Transport Corporation, a Zilla Parishad, a Municipal Council, a [Town Panchayath or Grama Panchayath]
[Substituted by Act 5 of 2017 w.e.f. 04.01.2017.]
constituted or continued under any law for the time being in force;
(k) "member" means a member of the Authority;
(l) "Metropolitan Commissioner" means the Metropolitan Commissioner appointed under section 8; and
(m) "regulation" means a regulation made under this Act.
Chapter II
The Bangalore Metropolitan Region Development Authority
-----------------------------------------------------------------------
### 3. Constitution and incorporation of the Authority.
(1) As soon as may be, after the date of commencement this Act, the State Government shall, by notification, constitute for the Bangalore Metropolitan Region an authority to be called the Bangalore Metropolitan Region Development Authority.
(2) The Authority shall be a body corporate having perpetual succession and a common seal, with power, subject to the provisions of this Act, to acquire, hold and dispose of property, both movable and immovable and to contract and, may, by the said name, sue or be sued.
(3) The Authority shall consist of the following members, namely:-
(a) the Chief Minister of Karnataka who shall be the Chairman;
(b) the Minister in charge of ["Bengaluru Development"]
[Substituted by Act 5 of 2017 w.e.f. 04.01.2017.]
who shall be the Vice-Chairman;
(c) the Chairman, Bangalore Development Authority;
(d) the Mayor, [Bruhat Bangalore Mahanagara Palike]
[Substituted by Act 5 of 2017 w.e.f. 04.01.2017.]
(e) the Chief Secretary to the Government of Karnataka;
(f) [ the Regional Commissioner, Bengaluru Region, Bengaluru;
[Substituted by Act 5 of 2017 w.e.f. 04.01.2017.]
(g) the Additional Chief Secretary or Principal Secretary or Secretary, Finance Department, Government of Karnataka;
(h) the Additional Chief Secretary or Principal Secretary or Secretary, Housing Department, Government of Karnataka;
(h-1) the Additional Chief Secretary or Principal Secretary or Secretary, Urban Development Department, Government of Karnataka;
(i) the Principal Secretary or Secretary, Public Works, Ports and Inland Water Transport Department, Government of Karnataka;
(j) the Additional Chief Secretary or Principal Secretary or Secretary, Commerce and Industries Department, Government of Karnataka;"]
(k) the Chairman, Bangalore Water Supply and Sewerage Board;
(l) the Chairman, Karnataka Housing Board;
(m) [ the Chairman, Karnataka Slum Development Board;
[Substituted by Act 5 of 2017 w.e.f. 04.01.2017.]
(n) the Chairman, Karnataka Power Transmission Corporation Limited;
(n1)
the Chairman, Bangalore Electricity Supply Company;
(n2)
the Chairman, the Karnataka State Road Transport Corporation;
(o) the Chairman, Bengaluru Metropolitan Transport Corporation;
(p) the Director of Town and Country Planning, Government of Karnataka;"]
(q) the Chief Conservator of Forests (General), Government of Karnataka;
(r) [ XXX]
[Omitted by Act5 of 2017 w.e.f. 04.01.2017.]
(s) the Divisional Railway Manager, Southern Railway, Bangalore (with the consent of the Central Government);
(t) the General Manager, Bangalore Telephones, Bangalore (with the consent of the Central Government);
(u) four members appointed by the Government representing labour, women and Scheduled Castes and Scheduled Tribes;
(v) [\*\*\*]
(w) four members from amongst the persons representing the local authorities in the Bangalore Metropolitan Region, appointed by the Government;
(x) the Metropolitan Commissioner, who shall be the Member- Secretary.
### 4. Term of office and conditions of service of members.
(1) Subject to the pleasure of the Government, the members appointed under items (u), (v) and (w) of sub-section (3) of section 3 shall hold office for a period of three years from the date on which they assume office and shall be eligible for re-appointment under such conditions as may be prescribed.
(2) Any member, other than an ex-officio member may resign his office by writing under his hand addressed to the State Government.
(3) A casual vacancy caused by resignation of a member or otherwise may be filled by appointment by the State Government and the persons so appointed shall hold office for the remaining period for which the member in whose place he is appointed would have held office.
(4) No act or proceeding of the Authority or the Executive Committee or any other committee shall be invalid merely by reason of any vacancy or defect in the constitution or reconstitution of the Authority, Executive Committee or any other committee, as the case may be, or any defect or irregularity in the constitution or procedure of the Authority not affecting the merits of the matter under consideration.
(5) Any person ceasing to be member shall be eligible for reappointment as a member.
(6) The sitting fee and other allowances payable to members other than the ex-officio members for attending the meetings of the Authority, Executive Committee or any other committee shall be such as may be prescribed.
### 5. Meetings of the Authority.
(1) The meetings of the Authority shall be convened by the Metropolitan Commissioner and it shall ordinarily meet at least once in three months at such place within the jurisdiction of the Authority and at such time as the Chairman may decide.
(2) The Authority shall observe such rules of procedure in regard to the transaction of business at its meetings (including quorum at meetings) as may be prescribed by regulations.
(3) The Chairman or, if for any reason he is unable to attend any meeting, the Vice-Chairman or if for any reason he is also unable to attend the meeting, any other member chosen by the members present at the meeting, shall preside at the meeting of the Authority;
(4) All questions which come up before any meeting of the Authority shall be decided by majority of the votes of the members present and voting and in the event of an equality of votes, the Chairman or in his absence the person presiding, shall have and exercise a second or casting vote.
(5) A member shall not, at any meeting of the Authority or a committee thereof, take part in the discussion of or vote on any matter in which he has directly or indirectly by himself or his partner, any share or interest.
### 6. Executive Committee.
(1) There shall be an executive committee of the Authority consisting of,-
(a) the Minister in charge of ["Bengaluru Development"]
[Substituted by Act 5 of 2017 w.e.f. 04.01.2017.]
who shall be the Chairman;
(b) the Metropolitan Commissioner who shall be the Vice-Chairman;
(c) the Chairman, Bangalore Development Authority;
(d) the Commissioner, Bangalore Development Authority;
(e) [ the Mayor Bruhat Bangalore Mahanagara Palike;
[Substituted by Act 5 of 2017 w.e.f. 04.01.2017.]
(f) the Commissioner, Bruhat Bangalore Mahanagara Palike;
(g) the Additional Chief Secretary or Principal Secretary or Secretary, Housing Department, Government of Karnataka
(g-1) the Additional Chief Secretary or Principal Secretary or Secretary, Urban Development Department, Government of Karnataka;
(h) the Additional Chief Secretary or Principal Secretary or Secretary, Finance Department, Government of Karnataka;
(i) the Principal Secretary or Secretary, Public Works, Ports and Inland Water Transport Department, Government of Karnataka;]
(j) the Chairman, Bangalore Water Supply and Sewerage Board;
(k) [ the Director of Town and Country Planning, Government of Karnataka;
[Substituted by Act 5 of 2017 w.e.f. 04.01.2017.]
(l) the Regional Commissioner, Bengaluru Region, Bengaluru;]
(2) Subject to the general superintendence and control of the Authority, the management of the affairs of the Authority shall vest in the Executive Committee.
(3) Subject to the rules, and to the direction of the Authority, the Executive Committee may exercise any powers and do any act or thing which may be exercised or done by the Authority.
(4) The procedure to be followed by the Executive Committee and all other matters relating to the Executive Committee shall be such as may be prescribed by regulations.
### 7. Appointment of other committees.
(1) The Authority may from time to time appoint committees consisting of such members as it thinks fit and may with the approval of the Government associate with such committee in such manner and for such period as may be prescribed, any person or persons whose assistance or advice it may desire and refer to such committees for inquiry and report any subject relating to the purposes of this Act.
(2) Every committee appointed under sub-section (1) shall conform to any instructions that may, from time to time, be given to it by the Authority and the Authority may at any time alter the constitution of any committee so appointed or rescind any such appointment. The Authority shall nominate one of the members as the Chairman of every such committee.
(3) The procedure to be followed by the committees and all other matters relating to the committees shall be such as may be prescribed by regulations.
### 8. Officers and servants.
(1) The State Government shall appoint a Metropolitan Commissioner who shall be the Chief Administrative and Executive Officer on the Authority. The State Government shall by order determine, from time to time, the salary and other terms and conditions of service and the powers and functions of the Metropolitan Commissioner. He shall be appointed for such period not exceeding three years as the State Government may decide, and the appointment may be extended from time to time for a period not exceeding three years at a time.
(2) The State Government may, appoint one or more Deputy or Assistant Metropolitan Commissioners, a Town Planner, a Law-Officer and an Accounts Officer. The State Government shall by order determine, from time to time, the salaries and other terms and conditions of service of the Deputy Metropolitan Commissioner, the Assistant Metropolitan Commissioner, the Town Planner, the Law Officer and the Accounts Officer.
(3) The Authority may, from time to time, sanction creation of such other posts of officers and servants as may be necessary for the efficient performance of the functions of the Authority. The condition of recruitment, appointment and service and the powers and duties of such officers, and servants shall be such as may be determined by regulations:
Provided that no post carrying a minimum salary of one thousand five hundred rupees and above shall be created without the approval of the Government.
Chapter III
Powers and Functions of the Authority.
-------------------------------------------------------
### 9. Powers and functions of the Authority.
(1) Subject to the provisions of this Act and the rules made thereunder the functions of the Authority shall be,-
(i) to carry out a survey of the Bangalore Metropolitan Region and prepare reports on the surveys so carried out;
(ii) to prepare a structure plan for the development of the Bangalore Metropolitan Region;
(iii) to cause to be carried out such works as are contemplated in the structure plan;
(iv) to formulate as many schemes as are necessary for implementing the structure plan of the Bangalore Metropolitan Region;
(v) to secure and co-ordinate execution of the town planning scheme and the development of the Bangalore Metropolitan Region in accordance with the said schemes;
(vi) to raise finance for any project or scheme for the development of the Bangalore Metropolitan Region and to extend assistance to the local authorities in the Region for the execution of such project or scheme;
(vii) to do such other acts and things as may be entrusted by the Government or as may be necessary for, or incidental or conducive to, and matters which are necessary for furtherance of the objects for which the Authority is constituted;
(viii) to entrust to any local authority the work of execution of any development plan or town planning scheme;
(ix) to co-ordinate the activities of the Bangalore Development Authority, the Corporation of the City of Bangalore, the Bangalore Water Supply and Sewerage Board, [the Karnataka Slum Development Board and the Karnataka Power Transmission Corporation limited and Bangalore Electricity Supply Company]
[Substituted by Act 5 of 2017 w.e.f. 04.01.2017.]
the Karnataka Industrial Areas Development Board, the Karnataka State Road Transport Corporation and such other bodies as are connected with developmental activities in the Bangalore Metropolitan Region.
### 10. No other authority or persons to undertake certain development without permission of the Authority.
(1) Notwithstanding anything contained in any law for the time being in force, except with the previous permission of the Authority, no authority or person shall undertake any development within the Bangalore Metropolitan Region of the types as the Authority may from time to time specify by notification published in the official Gazette.
(2) No local authority shall grant permission for any development referred to in sub-section (1), within the Bangalore Metropolitan Region, unless the Authority has granted permission for such development.
(3) Any authority or person desiring to undertake development referred to in sub-section (1) shall apply in writing to the Authority for permission to undertake such development.
(4) The Authority shall, after making such inquiry as it deems necessary grant such permission without any conditions or with such conditions as it may deem fit to impose or refuse to grant such permission.
(5) Any authority or person aggrieved by the decision of the Authority under sub-section (4) may, within thirty days from the date of the decision appeal against such decision to the State Government, whose decision thereon shall be final:
Provided that, where the aggrieved authority submitting such appeal is under the administrative control of the Central Government, the appeal shall be decided by the State Government, after consultation with the Central Government.
(6) In case any person or authority does anything contrary to the decision given under sub-section (4) as modified in sub-section (5), the Authority shall have power to pull-down, demolish or remove any development undertaken contrary to such decision and recover the cost of such pulling down, demolition or removal from the person or authority concerned.
Chapter IV
Finance, Accounts and Audit
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### 11. Authority's Fund.
(1) The Authority shall have a fund called the Bangalore Metropolitan Region Development Authority Fund which shall be operated by such officers as may be authorised by the Authority.
(2) The Authority may accept grants, subventions, contributions, donations and gifts from the Central Government, the State Government, a local authority or any individual or body, whether incorporated or not, for all or any of the purposes of this Act.
(3) The State Government shall, every year, make a grant to the Authority of a sum equivalent to the administrative expenses of the Authority till the Authority is able to meet its administrative expenses out of its own resources.
(4) All moneys received by or on behalf of the Authority by virtue of this Act, and all interests, profits, and other moneys accruing to or borrowed by the Authority, shall be credited to the Fund.
(5) Except as otherwise directed by the State Government, all moneys and receipts specified in the foregoing provisions and forming part of the Fund shall be deposited in any Scheduled Bank as defined in the Reserve Bank of India Act, 1934 or invested in such securities, as may be approved by the State Government.
(6) The Fund, and all other assets vesting in the Authority shall be held and applied by it, subject to the provisions of and for the purposes of this Act.
### 12. Budget.
- The Authority shall prepare, every year, in such form and at such time as may be prescribed, an annual budget estimate in respect of the next financial year showing the estimated receipts and disbursements of the Authority and shall submit a copy thereof to the State Government.
### 13. Annual report.
- The Authority shall, after the end of each year prepare in such form and before such date as may be prescribed, a report of its activities during such year and submit to the State Government and the State Government shall cause a copy of such report to be laid before both Houses of the State Legislature.
### 14. Subventions and loans to the Authority.
(1) The State Government may, from time to time, make subventions to the Authority for the purposes of this Act on such terms and conditions as the State Government may determine.
(2) The State Government may, from time to time advance loans to the Authority on such terms and conditions, not inconsistent with the provisions of this Act, as the State Government may determine.
### 15. Power of Authority to borrow.
- The Authority may from time to time, with the previous sanction of the State Government, and subject to the provisions of this Act, and to such conditions as may be prescribed in this behalf, borrow any sum required for the purposes of this Act.
### 16. Accounts and audit.
(1) The Authority shall cause to be maintained proper books of accounts and such other books as the rules made under this Act may require and shall prepare in accordance with such rules an annual statement of accounts.
(2) The Authority shall cause its accounts to be audited annually by such persons as the State Government may direct.
(3) [ The Audited accounts and report of the Auditor shall be published by the authority in the prescribed manner. The Authority shall send a copy of such audited accounts and the report of the Auditor to the State Government. The State Government shall cause the audited accounts and the report of the Auditor to be laid before both Houses of the State Legislature as soon as, after it is received by the State Government.]
[Substituted by Act 16 of 2010 w.e.f. 16.04.2010.]
(4) The Authority shall comply with such directions as the State Government may, after perusal of the report of the auditor, think fit to issue.
Chapter V
Miscellaneous
----------------------------
### 17. Powers of entry.
- The Authority may authorize any person to enter into or upon any land or building with or without assistants or workmen for the purposes of,-
(a) making any enquiry, inspection, measurement or survey or taking levels for such land or building;
(b) examining works under construction and ascertaining the course of sewers and drains;
(c) digging or boring into the sub-soil;
(d) setting out boundaries and intended lines of work;
(e) making such levels, boundaries and lines by placing marks and cutting trenches;
(f) ascertaining whether any land is being or has been developed in contravention of any plan or in contravention of any conditions subject to which such permission has been granted; or
(g) doing any other thing necessary for the efficient administration of this Act:
Provided that,-
(i) no such entry shall be made except between the hours of sunrise and sunset and without giving reasonable notice to the occupier, or if there be no occupier, to the owner of the land or building;
(ii) sufficient opportunity shall in every instance be given to enable women or children, if any, to withdraw from such land or building;
(iii) due regard shall always be had, so far as may be, compatible with the exigencies of the purpose for which the entry is made, to the social and religious usage of the occupants of the land or building entered.
### 18. Directions by the Authority.
(1) The Authority may, in order to carry out the development plans and schemes formulated under section 9 or any town planning scheme may issue direction to the Bangalore Development Authority, Bangalore Water Supply and Sewerage Board, Karnataka Electricity Board and such other bodies as are connected with developmental activities in the Bangalore Metropolitan Region. The directions issued by the Authority shall prevail over any directions issued by the Bangalore Development Authority under section 53 of the Bangalore Development Authority Act, 1976 (Karnataka Act 12 of 1976).
(2) Notwithstanding anything contained in any other law for the time being in force, every such direction shall be complied with by the body to whom it is issued. On failure, it shall be competent for the Authority to take necessary action to carry out the directions issued under sub-section (1) and recover expenses, if any, incurred therefor from the body concerned.
(3) Any dispute which arises between the Authority and the Boards or other bodies referred to in sub-section (1) in respect of the directions issued to them shall be determined by the State Government whose decision shall be final.
### 19. Metropolitan Commissioner to attend meetings of, Corporation, BDA and BWSSB.
(1) The Metropolitan Commissioner shall be entitled to attend and take part in the meetings of the Corporation of the City of Bangalore, the Bangalore Development Authority, the Bangalore Water Supply and Sewerage Board, the Karnataka Electricity Board and the Karnataka Road Transport Corporation, but he shall have no right to vote.
(2) The said bodies shall invite the Metropolitan Commissioner to attend their meetings.
### 20. Penalty for breach of the provisions of the Act.
- Whoever contravenes any of the provisions of this Act or of any rule, regulation, or bye-law or scheme made or sanctioned thereunder shall be punishable with imprisonment for a term which may extend to one year or with fine which may extend to ten thousand rupees or with both and in the case of continuing contravention, with additional imprisonment for a term which may extend to one month or with fine which may extend to five hundred rupees or with both for each day after the first during which the contravention continues.
### 21. Offences by companies.
(1) If the person committing an offence under this Act is a company, every person who at the time the offence was committed was in charge of and responsible to the company for the conduct of its business as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1) where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation. - For the purpose of this section,-
(a) "company" means a body corporate and includes a firm or other association of individuals; and
(b) "director" in relation to a firm means a partner in the firm.
### 22. Fines realized to be credited to the Fund.
- All fines realized in connection with prosecutions under this Act shall be credited to the Fund.
### 23. Members and officers to be public servants.
- Every member, every officer and other employee of the Authority shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code.
### 24. Protection of action taken in good faith.
- No suit, prosecution or other legal proceedings shall lie against any person for anything which is in good faith done or intended to be done under this Act or any rule or regulation made thereunder.
### 25. Power to delegate.
- The Authority may, by notification, direct that any power exercisable by it under this Act except the power to make regulation may also be exercised by the Chairman or such officer of the Authority as may be specified in the notification subject to such restrictions and conditions as may be specified therein.
### 26. Revision.
(1) The State Government may call for the records of any proceedings of the Authority for the purpose of satisfying itself as to the legality or propriety of the order or proceeding and may pass such order with respect thereto as it thinks fit.
(2) The Authority may call for the records of any proceeding of any officer subordinate to it for the purpose of satisfying itself as to the legality or propriety of the order or proceeding and may pass such order with respect thereto as it thinks fir.
(3) No order under sub-section (1) or sub-section (2) shall be made to the prejudice of any person unless he has had an opportunity of making representation.
### 27. Government's power to give directions to the Authority.
- The State Government may give such directions to the Authority as in its opinion are necessary or expedient for carrying out the purposes of this Act, and it shall be the duty of the Authority to comply with such directions.
### 28. Act to over-ride other laws.
- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.
### 29. Power to make rules.
(1) The State Government may, by notification, subject to the condition of previous publication, make rules to carry out the purposes of this Act.
(2) Every rule made under this Act shall be laid as soon as may be after it is made before each House of the State Legislature while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session in which it is so laid or the session immediately following, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or to be of no effect as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything done under that rule.
### 30. Regulation.
- The Authority may, by notification and with previous sanction of the Government, make regulations not inconsistent with this Act and the rules made thereunder for enabling it to perform its functions under this Act. Regulation may be made in respect of any matter which is required to be or may, in the opinion of the Authority be provided by regulations.
### 31. Amendment of the Karnataka Town and Country Planning Act, 1961.
- After section 81-B of the Karnataka Town and Country Planning Act, 1961 (Karnataka Act 11 of 1963), the following section shall be inserted, namely:-
"81-C. Outline development plan and comprehensive development plan of Bangalore Metropolitan Region. - Notwithstanding anything in this Act, the Planning Authorities within the Bangalore Metropolitan Region as defined in the Bangalore Metropolitan Region Development Authority Act, 1985 shall submit the outline development plans and comprehensive development plans under sections 9 and 19 respectively to the State Government through the Bangalore Metropolitan Region Development Authority for approval and the said Authority shall exercise the powers and discharge functions of the Director of Town Planning in respect of such outline development plans or comprehensive development plans. The provisions of sections 9 and 19 shall mutatis mutandis be applicable for the purpose of this section."
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65ba0264ab84c7eca86ea712 | acts |
State of Andhra Pradesh - Act
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Andhra Pradesh "Integrated Common Entrance Test" for admission into MBA and MCA Professional Courses 2003
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ANDHRA PRADESH
India
Andhra Pradesh "Integrated Common Entrance Test" for admission into MBA and MCA Professional Courses 2003
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Rule ANDHRA-PRADESH-INTEGRATED-COMMON-ENTRANCE-TEST-FOR-ADMISSION-INTO-MBA-AND-MCA-PROFESSIONAL-COURSES-2003 of 2003
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* Published on 15 March 2003
* Commenced on 15 March 2003
Andhra Pradesh "Integrated Common Entrance Test" for admission into MBA and MCA Professional Courses 2003
Published vide Notification No. G.O. Ms. No. 14, Higher Education (EC) , dated 15.3.2003
Last Updated 21st August, 2019
No. G.O. Ms. No. 14. - In exercise of the powers conferred by Sections 3 and 15 of the Andhra Pradesh Educational Institutions (Regulation of Admission and Prohibition of Capitation fee) Act, 1983 (Andhra Pradesh Act 5 of 1983) and in supersession of the rules issued in G.O.Ms.No. 14, Education (EC) Dept., dated the 26th March 2002, the Governor of Andhra Pradesh hereby makes the following rules for the conduct of Integrated Common Entrance Test for admission into Post Graduate Professional Courses of MBA and MCA.
### 1. Short title, Applicability and Commencement.
- (i) These rules may be called the Andhra Pradesh "Integrated Common Entrance Test" for admission into MBA and MCA Professional Courses 2003.
(ii) They shall apply to all Post Graduate Professional Courses in MBA and MCA.
(iii) They shall come into force with immediate effect.
### 2. Definitions.
- (i) In these rules, unless the context otherwise requires:
(a) "Act" means the Andhra Pradesh Educational Institutions (Regulation of Admission and Prohibition of Capitation fee) Act, 1983
(b) "Chairman" means the Vice-Chancellors of any University nominated by the "Competent Authority" for the purpose of conducting ICET for admission into MBA and MCA Post Graduate Professional Courses.
(c) "Committee of ICET" means the committee empowered to conduct Integrated Common Entrance Test for admission into MBA and MCA Courses and to prepare the merit list of the candidates as per the marks obtained in the above test.
(d) "Competent Authority" means the Chairman of the Andhra Pradesh State Council of Higher Education.
(e) "Convenor" means a person, not below the rank of a Professor, appointed by the Competent Authority for conducting the Integrated Common Entrance Test and performing such other functions relating to the said test and entrusted to him by the Competent Authority in consultation with the Chairman of the Integrated Common Entrance Test Committee.
(f) "Integrated Common Entrance Test" (herein after called ICET) means examination conducted for assigning ranking by merit to the candidates for admission into MBA and MCA Courses.
(g) "Qualified Candidate" means the candidate who has appeared for the ICET and has been assigned ranking in the common merit list and has the eligibility as per the criteria laid under Rule 3.
(h) "Qualifying Examination" means the passing of Degree examination as laid down under Rule 3.
(i) "State Council" means the Andhra Pradesh State Council of Higher Education constituted under Andhra Pradesh State Council of Higher Education Act, 1988 (Andhra Pradesh Act 16 of 1988).
(j) "University" Means the University concerned only.
### 3. Eligibility.
- The Eligibility for a appearing to the ICET shall be as follows:
(i) The candidates should be an Indian National and should satisfy the requirement of local or non local status as laid down in the Andhra Pradesh Educational Institutions (Regulation of Admissions) Order, 1974 as subsequently amended from time to time.
(ii) The Candidates should have passed a Bachelor Degree Examination of any recognized University or equivalent thereof besides passing SSC or equivalent with Mathematics as one of the subjects:
provided that a candidate who has appeared for the above Degree Examination shall also appear for the ICET.
(iii) The candidate shall get a rank as per the merit besides passing the qualifying examination for admission into the courses.
### 4. Entrance Test.
- (i) (a) The Integrated Common Entrance Test (ICET) shall be conducted by a Convener, appointed by the competent authority and shall be held on such date and at such centers as decided by the Entrance Test committee of ICET.
(b) The Convener of ICET shall give a notification in the popular daily News Papers as decided by Test Committee calling for the applications in the prescribed form from the candidates satisfying eligibility criteria as laid down in Rule 3.
(c) the notification, among other things, shall indicate the application fee. Entrance Test Fee, the last date for receipt of the duly filled in applications and the date of conduct of ICET.
(d) the date of the entrance test as notified above shall not be revised with out the prior approval of the Government.
(ii) The medium of ICET shall be English and Telugu Languages only.
(iii) The subjects and Syllabus for ICET shall be as prescribed by the ICET Committee.
(iv) The qualifying marks for ranking in the ICET shall be 30% of the total marks.
Provided that there shall be no minimum qualifying marks for the candidates belonging to the category of Scheduled Caste and Scheduled Tribes for ranking.
(v) There is no provision for re-totaling, re-valuation or Personal identification of answer scripts of the Entrance Test.
(vi) appearance at the Entrance Test does not automatically entitle a candidate to be considered for admission into MBA/MCA courses unless the candidate satisfies the requirement of eligibility as laid down under rule 3 and other criteria as laid down in the instructions to the candidates supplied along with the application.
### 5. Preparation of the Merit List and assigning ranking.
- The convener shall follow the following rules in preparing the merit list and assigning the ranking: -
(i) The candidate, who have secured qualifying the marks in ICET and candidates belonging to the category of Scheduled Caste and Scheduled Tribe, to whom qualifying marks have not been prescribed, shall be assigned the ranking in the order of the merit on the basis of marks obtained in the ICET.
(ii) For the preparation of merit list, in case of more than one candidate scoring the same marks at IECT, the tie will be resolved as follows:
(a) by considering the marks scored in Section-A.
(b) if the tie persists marks obtained by a candidate in Section-B, will be taken into consideration.
(c) if the tie still persists the tie will be resolved by taking into account age of the candidate giving the older candidate as priority.
(iii) The following rank lists shall be prepared by the Convenor:
(a) State-wide Common Merit List. - The list shall include candidates irrespective of whether one belongs to any category of reservation quota or not, basing on the marks obtained in the ICET.
(b) Region-wise Common Merit List. - The list includes candidates belonging to the particular local area irrespective of whether one belongs to any category of reservation quota or not, basing on the marks obtained in the ICET.
(c) Minority Community Merit Lists. - The Merit lists, containing the candidates belonging to the different Minority Communities arranged in the Merit ranking assigned in the ICET, both the State wide and Region-wise.
(d) Community-wise Merit Lists. - There shall be separate Community-wise merit lists for the scheduled castes. Scheduled tribes and Back-ward classes Communities, both as State-wide and Region-wise; and
(e) Merit List for other categories of Reservations. - There shall be separate lists for other categories of reservations as per the orders in force for physically handicapped, NCC, Games and Sports, Children of ex-servicemen and for women both State-wide and Region-wise.
(f) Rank Card. - Every candidate who has been assigned ranking in the merit list shall be issued Rank card by the Convener. The Rank Card, among other things, include the marks obtained in the ICET and the rank assigned in the state wide merit, region-wise merit. Community-wise merit etc.,
### 6. Constitution and functions of ICET Committee.
- The competent authority shall constitute the ICET committee to deal with the matters conducted with the test and admission into MBA and MCA courses.
(i) Composition of the Committee:-The committee shall consist of the following: -
(a) Chairman, who shall be the Vice-Chancellor of any University College nominated by the competent authority for each academic year for the purpose of conducting ICET.
(b) One representative of each of the University to be nominated by the Competent Authority in consultation with the Vice-Chancellor concerned.
(c) The Director of Technical Education, Andhra Pradesh or his nominee not below the rank of joint Director.
(d) The senior officer of Higher Education Department, Secretariat dealing with the subject.
(e) One representative of Andhra Pradesh State Council of Higher Education nominated by the competent authority.
(f) Convenor(s) of the Entrance Test of the preceding year.
(g) Convenor, who should be the rank of a Professor of the University concerned be appointed by the competent authority in consultation with Chairman of the ICET committee.
(h) Two Principals, one each from a private MBA or MCA College to be nominated by the competent authority for each academic year;
(ii) Functions of the ICET Committee. - The Committee shall take decisions on the following issues relating to the ICET: -
(a) Instructions to the candidates and format of the application;
(b) pattern of the question paper;
(c) Duration of the test;
(d) Weightage and marks to be assigned for each question;
(e) Cost of the application and fee to be collected from the candidates of ICET;
(f) Norms for the payment of remuneration for different items/ services under taken in connection with ICET work;
(g) such other issues as may be referred to by the Chairman of the committee and competent authority;
(iii) Functions of the Chairman of the Committee: -
(a) The Chairman of the Committee shall preside over all the meetings of the committee and in his absence he may nominate one of the members of the committee to preside over the meetings.
(b) The Chairman of the committee shall appoint paper setters, moderators for the ICET and decide upon the printing press or presses where the confidential material of the Test shall be printed.
(iv) Functions of the Convener of the Committee. - The Convener of the ICET shall subject to such directions as may be issued by the Chairman discharge his duties in the matters relating to the ICET. The convener is specifically responsible for discharging the following functions;
(a) getting the printing of application forms, instruction booklets of ICET;
(b) issuing the notification inviting applications for the Entrance test;
(c) sale of application forms and issue of Hall-Tickets;
(d) appointment of Co-ordinators/ Chief Superintendents/Observers of various Test Centers;
(e) payment of remuneration for various items/services utilized for the purpose of ICET;
(f) maintenance and submission of accounts to the Andhra Pradesh State council of Higher Education;
(g) publication of results and dispatch of Rank Cards to the qualified candidates;
(h) such other duties as entrusted by the Chairman;
### 7. Funds for the conduct of the Test.
(a) The amounts that are collected from the candidates towards cost of the application and the examination fee shall be directly credited into the account of the Secretary, Andhra Pradesh State Council of Higher Education, Hyderabad.
(b) The Convener shall draw advances from the Andhra Pradesh State Council of Higher Education to incur necessary expenditure for items services connected with the ICET and submit for audit to the Local Fund Audit and submit report thereof to the Andhra Pradesh State Council of Higher Education.
### 8. Removal of Doubts.
- If any ambiguity or doubt arise on the interpretation or implementation of the any of the rules, the decision of the Chairman of ICET Committee shall final.
### 9. Special directions from the Government.
(1) in the event of any malpractice or leakage of question paper/in any other circumstances leading to the stopping of ICET as schedule, the Government may for the reasons to be recorded in writing direct to conduct of a reexamination of the ICET. In such an event the Andhra Pradesh State Council of Higher Education of any other body so nominated by the Government shall cause the reexamination conducted by appointing or nominating such functionaries or committees as considered necessary.
(2) Rules regarding procedure for admission etc. will be issued separately.
|
65b9b3dcab84c7eca86e9a89 | acts |
State of Rajasthan - Act
--------------------------
Rajasthan Finance Act, 2009
-----------------------------
RAJASTHAN
India
Rajasthan Finance Act, 2009
=============================
Act 13 of 2009
----------------
* Published on 1 January 2009
* Commenced on 1 January 2009
Rajasthan Finance Act, 2009
(Act
No. 13 of 2009
)
Last Updated 21st May, 2019
Statement of Objects and Reasons. - 1. The Rajasthan Fiscal Responsibility And Budget Management Act, 2005
Fiscal Responsibility and Budget Management Act was enacted for the purpose Of making State Government manage State finances in a fiscally responsible manner by undertaking fiscal consolidation with time bound targets. With a view to set aside a part of State revenues in the years of above normal revenue growth and using such accumulations in the years of fiscal distress and for poverty alleviation and development purposes, an equalisation fund in the name of "Rajasthan Development and Poverty Alleviation Fund" was created by an Amendment in the Act in the year 2007. In fact creation of this fund has led to inconsistencies in the accounting. The fund is created by making provisions in the revenue expenditure head and the expenditure incurred from the fund for creation of capital assets is not reflected in the capital account of the State. Besides, as per the amendment, this fund can be utilised to meet revenue and capital expenditure in a year wherein total tax receipts of the State are estimated to be less than 10 percent over the previous year and for meeting development expenditure or poverty reduction programmes. Therefore, in a situation where the tax receipts are not less than 10 percent but due to increased revenue expenditure, revenue deficit is likely to occur, the fund can not be utilised. This is not in line with the spirit of FRBM Act as it envisages elimination of revenue deficit. Therefore, section 6-A of the Act is proposed to be deleted. Consequently, clause (kk) of section 2 of the Act is also proposed to be deleted.
As part of the second economic stimulus package announced by; the Government of India, the States have been allowed to raise, in the financial year 2008-09 additional market borrowing of 0.5 percent of their Gross State Domestic Product (GSDP) , for capital expenditure. Accordingly, the Government of India has relaxed the fiscal deficit targets for the year 20008-09 and has also relaxed the requirement of elimination of revenue deficit. For the year 2009-10 also, the Government of India has granted the same relaxation in the fiscal targets. Accordingly, the first proviso of section 6 of the Act is proposed to be amended so that the State Government may exceed the fiscal targets to the extent allowed by the Government of India or to meet developmental and other unavoidable expenditure.
2. The Rajasthan Value Added Tax Act, 2003
Sub-section (2) of Section 3 provides that dealers other than an importer or manufacturer, purchasing goods from registered dealers of the State and whose turnover do not exceed rupees fifty lac in a year, can exercise option to make payment of tax on his turnover at the notified rate. It is felt that in view of the intricacies involved, this facility should not be granted to certain trades. With this objective in view, it is proposed1 to empower the State Government to exclude dealer or class of dealers, as it may notify, from the purview of sub-section (2) of section 3.
Delay in disposal of the stay application by Deputy Commissioner (Appeals) defeats the very purpose of stay. To ensure that stay applications are decided on priority basis, it is proposed to amend the existing provisions of sub-section (4) of section 38 so that where the stay application is not decided within thirty days from its filing and the delay is not attributable to the applicant, such application shall deemed to have been accepted subject to the condition of furnishing of adequate security.
To motivate dealers to opt for quarterly assessment along with filing of returns electronically thereof, it is proposed to provide incentive by way of granting provisional refund to the extent of fifty percent of refundable amount subject to subsequent verification of the refundable amount. To give effect to this proposal, a proviso is proposed to be added in sub-section (1) of section 53 of the Act.
The existing penal provisions for delay in filing of the returns by the dealer have failed to improve the compliance level in filing of returns. Self assessment based on the returns is the basic theme of VAT, as such compliance in filing of return has to be improved. It is therefore, proposed to substitute the existing provision of section 58 to provide higher penalities for delay in filing of returns.
Section 73 of the Act enumerates provisions as to the audit of accounts of registered dealer. At present dealer who has opted for payment of tax under sub-section (2) of section 3 or under section 5 or who files e-returns with prescribed documents or submits returns and documents in soft copy to the assessing authority or the officer authorized by the Commissioner, have been excluded from the purview of audit. In view of the genuine demand from various sectors for being excluded from purview of audit, it is proposed to empower the State Government to notify any dealer or class of dealers to be excluded from purview of audit under Section 73 of the Act. With this objective in view, the existing sub-section (1) of section 73 is proposed to be amended.
As per existing provisions of sub-section (2) of section 77, a contractor is required to deposit tax collected by him, however, when tax is collected less than the contracted amount then such contractor deposits the collected tax amount and not the contracted amount. To remove this anomaly, sub-section (2) of section 77 of the Act, is proposed to be substituted, It is also proposed to give retrospective effect to the proposed amendment from date of introduction of VAT, i.e. with effect from April 1, 2006.
3. The Rajasthan Electricity (Duty) Act, 1962
The state is facing severe drinking water crisis in almost all parts of the State. Due to intensive use of ground water, the ground water level is depleting at a faster rate. Therefore, judicious use of water along with water conservation has become essential. Construction of water harvesting structure, both for, collecting the run off as well as for ground water recharge, are required at a large scale to ensure more water availability in the state. People at large, are to be informed, educated and sensitized to initiate and sustain the habit of conserving water in day to day life. All these activities need financial resources, which-at present, amidst pressure of recession is not easily affordable. The proposed water conservation cess is intended to provide financial resources to such activities.
The Bill seeks to achieve the aforesaid objects.
[Received the assent of the Governor on the 11th day of August, 2009]
An Act further to amend the Rajasthan Fiscal Responsibility and Budget Management Act, 2005, the Rajasthan Value Added Tax Act, 2003 and the Rajasthan Electricity (Duty) Act, 1962 and to make certain other provisions.
Be it enacted by the Rajasthan State Legislature in the Sixtieth Year of the Republic of India, as follows:-
Chapter I
Preliminary
--------------------------
### 1. Short title.
- This Act may be called the Rajasthan Finance Act, 2009.
### 2. Declaration under section 3, Rajasthan Act No. 23 of 1958.
- In pursuance of section 3 of the Rajasthan Provisional Collection of Taxes Act, 1958 (Act No. 23 of 1958) it is hereby declared that it is expedient in the public interest that the provisions of clause 3 to 12 of this Bill shall have immediate effect under the said Act.
Chapter II
Amendment in the Rajasthan Fiscal Responsibility and Budget Management Act, 2005
------------------------------------------------------------------------------------------------
### 3. Amendment of section 2, Rajasthan Act
No. 7 of 2005
.
- The existing clause (kk) of section 2 of the Rajasthan Fiscal Responsibility and Budget Management Act, 2005 (Act
No. 7 of 2005
) hereinafter in this Chapter referred to as the principal Act, shall be deleted.
### 4. Amendment of section 6, Rajasthan Act
No. 7 of 2005
.
- For the existing first proviso of section 6 of the principal Act, the following shall be substituted, namely:-
Provided that revenue deficit and fiscal deficit may exceed the limits specified under this section-
(a) due to ground or grounds of unforeseen demands on the finances of the State Government arising out of national security or natural calamity including drought relief or such other exceptional circumstances beyond the control of the State Government; or
(b) due to developmental and other unavoidable expenditure; or
(c) up to the limits indicated by the Central Government from time to time:
### 5. Deletion of section 6-A, Rajasthan Act
No. 7 of 2005
.
- The existing section 6-A of the principal Act shall be deleted.
Chapter III
Amendment in the Rajasthan Value Added Tax Act, 2003
---------------------------------------------------------------------
### 6. Amendment of section 3, Rajasthan Act, No. 4 of 2003.
- In sub-section (2) of section 3 of the Rajasthan Value Added Tax Act, 2003 (Act No. 4 of 2003), hereinafter in this-Chapter referred to as the principal Act, after the existing expression "clause (b) of sub-section (1)", and before the existing expression", who purchases goods", the expression "or the dealer or class of dealers as may be notified by the State Government shall be inserted.
### 7. Amendment of section 38, Rajasthan Act No. 4 of 2003.
- In sub-section (4) -of section 38 of the principal Act, for the existing punctuation mark appearing at the end, the punctuation mark Shall be substituted and after the aforesaid sub-section (4), so amended, the following proviso shall be added, namely:-
Provided that where an application for stay is not disposed of within a period of thirty days from its filing and the delay is not attributable to the applicant, the same shall be deemed to have been accepted subject to the condition that such dealer or person furnishes sufficient security to the satisfaction o.f the Assessing Authority or the officer, as the case may be, in such form and in such manner as may be prescribed.
### 8. Amendment of section 53, Rajasthan Act No. 4 of 2003.
- In sub-section (1) of section 53 of the principal Act, for the existing punctuation mark, appearing at the end, the punctuation mark ";" Shall be substituted and after the aforesaid sub-section (1), so amended, the following proviso shall be added, namely:-
Provided that in case of the dealer who files returns electronically and also opts for' quarterly assessment under sub-section (2) of section 23, refund may be made provisionally to the extent of fifty percent of the refundable amount subject to the condition of subsequent verification of the deposit of refundable amount.
### 9. Amendment of section 58, Rajasthan Act No. 4 of 2003.
- For the existing section 58 of the principal Act, the following shall be substituted, namely:-
### 58. Penalty for failure to furnish return. - Where the assessing authority or any other officer not below the rank of Assistant Commercial Taxes Officer as authorized by the Commissioner is satisfied that any dealer has, without reasonable cause, failed to furnished prescribed returns within the time allowed, he may direct that such dealer shall pay by way of penalty -
(i) in case the dealer is required to pay tax month under section 20, a sum equal to rupees one hundred per day for first fifteen days of such default and thereafter a sum equal to rupees five hundred per day for the period during which the default in furnishing such return continues, but not exceeding in the aggregate thirty percent of the tax so assessed: and
(ii) in all other cases, a sum equal to rupees fifty per day subject to a maximum limit of rupees five thousand, for the period during which the default in furnishing of such return continues.
### 10. Amendment of section 73, Rajasthan Act No. 4 of 2003.
- In sub-section (1) of section 73 of the principal Act, after the existing expression "by the Commissioner", and before the exiting expression, "shall, if his turnover", the expression "or the dealer or class of dealers as may be notified by the State Government" shall be inserted.
### 11. Amendment of section 77 Rajasthan Act No, 4 of 2003.
- For the existing sub-section (2) of section 77 of the principal Act, the following shall be substituted and shall be deemed to have always been substituted, namely:-
(2) Notwithstanding any thing contrary contained in any contract under, sub-section (1), a contractor covered by sub-section (1) shall deposit the amount of-
(i) tax collected; or
(ii) the amount of contracted annual tax revenue,
whichever is higher, subject to revision on account of any increase or decrease in the rate of tax or grant of exemption from tax, in such manner and within such time as may be prescribed, and all the provisions of this Act including the provisions of recovery and interest shall, so far as may be, apply to such contractor.
(2A)
Notwithstanding anything contained in any rule, judgment, order or any other instrument, the amount of tax payable in accordance with the provisions of sub-section (2) as amended by the Rajasthan Finance Act, 2009 (Act
No. 13 of 2009
), if not paid, shall be deposited to the State Government within two months from the commencement of this Act.
Chapter IV
Amendment in the Rajasthan Electricity (Duty) Act, 1962
-----------------------------------------------------------------------
### 12. Insertion of section 3-B, Rajasthan Act No, 12 of 1962.
- After the existing section 3A and before section 4 of the Rajasthan Electricity (Duty) Act, 1962 (Act
No. 12 of 1962
), the following new section shall be inserted, namely:-
### 3B. Levy of water conservation cess. - (1) There shall be levied for, and paid to, the State Government on the energy consumed by a consumer or by a person other than a supplier generating energy for his own use or consumption, a cess to be called "water conservation cess" at the rate of ten paise per unit:
Provided that no cess under this section shall be levied on the energy-
(a) consumed by the Government of India;
(b) consumed in the construction, maintenance or operation of any Railway by the Government of India;
(c) consumed in domestic category;
(d) consumed by a cultivator in agriculture operations;
(e) consumed by the following classes of institutions, namely:-
(i) hospitals or dispensaries, which are not maintained for private gain,
(ii) recognized educational institutions,
(iii) places of public worship,
subject to the condition that the exemption under this sub-clause shall not be applicable to energy concerned in building or part of buildings, used for commercial purposes;
(f) is generated at voltage not exceeding 100 volts.
(2) The provisions of this Act or the rules made thereunder shall, so far as may be, apply in relation to levy, payment, interest, computation and recovery of the cess payable under sub-section (1) as they apply to levy; payment, interest, computation and recovery of electricity duty payable under this Act.
(3) The cess collected under this section shall, be earmarked and utilized for the purpose of water conservation in the State.
|
65ba8776ab84c7eca86ebef9 | acts |
Union of India - Act
----------------------
The Navy (Prescribed Officers) Regulation, 1963
-------------------------------------------------
UNION OF INDIA
India
The Navy (Prescribed Officers) Regulation, 1963
=================================================
Rule THE-NAVY-PRESCRIBED-OFFICERS-REGULATION-1963 of 1963
-----------------------------------------------------------
* Published on 18 December 1963
* Commenced on 18 December 1963
The Navy (Prescribed Officers) Regulation, 1963
Published vide Notification Gazette of India, 1963, Part 2, Section 4 page 250.
### 1810. [18th December, 1963]
In exercise of the powers conferred by Section 184 of the Navy Act, 1957 (
62 of 1957
), the Central Government hereby makes the following regulations, namely :-
### 1. Short title.
- These regulations may be called the Navy (Prescribed Officers) Regulation, 1963.
### 2. Definitions.
- In these regulations, unless the context otherwise requires, --
(a) "Act" means the Navy Act, 1957 (
62 of 1957
).
(b) "Administrative Authority" means the authority which is designated as such in the Navy Orders;
(c) "Navy Orders" means general orders of the Chief of the Naval Staff issued in the publication entitled 'Navy Orders' and includes Confidential Navy Order;
(d) "Section" means a section of the Act.
(e) "Sailor" means a seaman as defined in clause (20) of Section 3 of the Navy Act, 1957;
(f) All words and expression used in these regulations and not defined but defined in the Act shall be have the meanings respectively assigned ti them in the Act.
### 3. Prescribed Officers.
- The prescribed officers for the purpose of the provisions of the Act mentioned in Column 1 of the following Table shall be the officers mentioned in the corresponding entry in column 2 thereof :-
The Table
| | |
| --- | --- |
|
1
|
2
|
|
Section
13
|
Any
officer not below the rank of lieutenant Commander in the case
of sailors.
|
|
Sub-section
(2) of Section 14
|
1. The
Chief of the Naval Staff in the case of any sailor.
|
|
|
2. The
Captain, Naval Barracks or the Commanding Officer of a Training
Establishment in respect of any sailor under probation.
|
|
Sub-section
(4) of Section 17
|
The
Captain, Naval Barracks.
|
|
Sub-section
(3) of Section 28
|
The
Director of Medical Services (Navy) .
|
|
Sub-section
(7) of Section 28
|
1. The
Commanding Officer in respect of any sums due to a service mess.
|
|
|
2. The
Administrative Authority in respect of sums due to a canteen.
|
|
sub-section
(3) of Section 29 excluding the proviso.
|
The
Command Medical Officer or the Commanding Officer of a naval,
army or air force hospital.
|
|
Proviso
to sub-section (3) of Section 29.
|
Administrative
Authority.
|
|
Sub-section
(4) of Section 29.
|
Administrative
Authority.
|
|
Sub-section
(2) of Section 85.
|
The
Executive Officer in the case of sailors.
|
|
Sub-section
(2) of Section 134.
|
The
President of a Board of Inquiry in respect of witnesses required
by the Board.
|
|
65c43c1957bc567107068260 | reports | # The Parliamentary Debates Official Report In The Sixteenth
SESSION OF THE RAJYA SABHA. Commencing on the 18th March 1957
1
## Rajya Sabha
Monday, 18th *March* 1957
The House met at fifteen minutes past twelve of the clock, MR. CHAIRMAN in the Chair.
## Member Sworn
Shri S. K. Dey (Delhi).
## Papers Laid On The Table President'S Address
SECRETARY: Sir, I beg to lay on the Table a copy of the President's Address to both the Houses of Parliament assembled together on the 18th March 1957:
(Text of the President's Address in Hindi)
3
[ RAJYA SABHA ]
on the Table
4
5
[ 18 MAECH 1957 ]
on the Table
6
7 Papers laid
[ RAJYA SABHA ]
on the Table 8
9
[ 18 MARCH 1957 ]
on the Table
10
United Nations and the impact of world opinion resulted in the withdrawal of the invading armies from Egypt; but the conflict has not only done great damage to Egypt but has added to the tensions which were showing signs of relaxation, and has left in its wake many problems to be resolved. Our country, which is deeply involved both on account of her concern for world peace and co-operation and her own interest, has sought to assist in resolving these difficulties. India has accepted greater burdens including participation in the United Nations Emergency Force constituted by the decision of the General Assembly of the United Nations which called for the withdrawal of the invading forces.
3. In Central Europe, the events in Hungary have disturbed us greatly and here, as elsewhere, we have stood for the withdrawal of foreign forces and against their use against peoples and national movements. At the same time, we have used our best efforts to assist in finding solutions to the pro-lem at its various stages and extended our sympathy and our token of assistance to the people of Hungary.
4. The position in the Middle East casts its
{Text of the President's Address in English)
Members of Parliament, I am addressing shadow over the prospects of cooperation and peace and the Suez Canal awaits opening for traffic. The policy of military pacts has divided the nations in this region and brought the apparatus of war more and more into Asia. We must, however, note with relief that the conflict in this region did not grow to greater dimensions.
5. Our Government and people rejoice in the fact that the former British colony of the Gold Coast, along with the former Trust Territory of Togoland under British administration, has now been constituted into the independent and sovereign State of Ghana and a full member of the Commonwealth of Nations.
6. We welcome the admission of Sudan, you today after a full year, a year which has witnessed significant happenings in the world and considerable developments in our own country. We are meeting at a time when general elections are being held all over the country, and a new Parliament is coming into being as a result of these elections. This is the last occasion when I am addressing this Parliament. Some of you will come back to represent your constituencies in the new Parliament and some of you may not return. But I have no doubt that wherever your field of work may lie, it will be dedicated to the great task of building jup this country of ours. I wish you success and good fortune in your field of activity.
Morocco, Tunisia, Japan and Ghana to the United Nations. The
2. Since I addressed you last, the world has seen a period of high tensions, particularly in the Middle East, and of conflict ending in the invasion of Egypt. The intervention of the continued exclusion of Mongolia and the denial to the rightful representatives of China of their place in the United Nations cause us deep concern and we continue to devote our endeavours to remedy this situation.
Lama and the Panchen Lama, as well as leaders of Buddhism from different parts of the world. These celebrations reminded us and the world afresh of the great message of peace and compassion of the Buddha, which is so much needed in the world today.
7. We hope that Malaya will soon become
## 12. We Have Been Privileged To Receive In
a free and independent State and this will further limit the sphere of colonialism and extend the area of national freedom in Asia.
8. In the United Nations, the Indian Delegation, in the Eleventh Session of the General Assembly, has made effective and useful contributions in the prolonged debates on crucial issues in regard to the Middle East, Algeria and Cyprus, and contributed to peaceful solutions and procedures in respect of them. Disarmament has made no progress, but the United Nations unanimously resolved to continue its efforts to consider all proposals before it, including the proposals made by India. The Government of India are happy to have been able to assist in promoting this resolution.
9. Our country, which was a member of the our country many distinguished visitors to whom my Government and the people of India have extended their traditional hospitality. Among these eminent guests of ours have been Their Imperial Majesties the Shahenshah and the Empress of Iran, His Imperial Majesty the Emperor of Ethiopia, President Shukri El- Kuwatly of Syria, His Royal Highness Prince Norodom Sihanouk of Cambodia, Prime Ministers of Burma, Ceylon, Indonesia, China, Nepal and Denmark, the Vice-Chancellor of the Federal Republic of Germany, the Deputy Prime Minister and Defence Minister of the Soviet Union, the Deputy Prime Minister of Sudan and the Foreign Ministers of the United States, France and the United Kingdom. The President of the United Nations General Assembly for 1956, Dr. Jose Maza, and the Secretary General of the United Nations were also among our distinguished visitors.
Preparatory Commission of the International Atomic Energy Agency, can derive Parliamentary, cultural, trade and other goodwill delegations from Burma, China, Czechoslovakia, Denmark, Germany, satisfaction that the Agency has now been established. May it fulfil the hopes that atomic energy will be harnessed for peaceful uses and also diverted from destructive purposes.
Indonesia, Japan, Norway, Poland, Sweden, Syria and Uganda have also visited our country.
10. I had the happy privilege of visiting our
13. The Vice-President paid visits to the Soviet Union, Poland, Czechoslovakia, Hungary, Rumania, Bulgaria, East Africa, the Central African Federation, Indonesia and Japan and received a very warm welcome everywhere.
14. My Prime Minister visited the United near neighbour, Nepal; and the Vice-President represented our country at the Coronation of His Majesty King Mahendra Bir Bikram Shah. The endeavours of the Nepal Government and people for economic and social development have our full sympathy, and we are happy that we have been able to extend technical and economic assistance to them in the States at the invitation of President implementation of their Five Year Plan.
11. The Buddha Jayanti celebrations in Eisenhower. The visit and the talks between the President of the United States and my Prime Minister have assisted in the promotion of understanding between our two countries and greater appreciation of each India gave us the opportunity of welcoming in this country the Dalai
15
[ RAJYA SABHA ]
on *the Table* 16
heavy burden on our country and, more especially, on the State of West Bengal.
19. The problem of Kashmir was other's point of view. My Government feel confident that it will lead to increasing cooperation in all fields on the basis of mutual respect and understanding.
15. My Prime Minister also visited Canada at the invitation of Mr. Louis St. Laurent, the Prime Minister of Canada. His visit has helped to further enrich the relations between Canada and our country, which have always been very friendly and close.
16. My Government regret that no progress considered by the Security Council of the United Nations once again, at the request of the Government of Pakistan. The Government of India's position has been stated in clear and unambiguous terms, that the Jammu and Kashmir State is and has been a constituent State of the Indian Union since October 1947, like other States which acceded to the Union. The present situation in Kashmir has arisen from aggression and on illegal occupation of Union territory by Pakistan in violation of international law and agreements and has been made in regard to the solution of the problem of "apartheid" and discrimination against Africans and people of Indian origin in South Africa. This problem once again received the consideration of the United Nations at the instance of my Government. A, further appeal to the Governments concerned to find a solution by negotiations has been made by the United Nations. The Government of India, as in the past, has readily subscribed to this resolution.
engagements reached in pursuance of United Nations resolutions. The Security Council has resolved last month to send its then President to Pakistan and India to confer with the two Governments. The Government of India, in accordance with its general policy, has agreed to receive and extend hospitality to Mr. Jarring of Sweden who is expected to arrive here soon.
17. My Government deeply regret that Goa
20. The world situation as a whole, which was beginning to show some signs of improvement, gives us cause for less optimism at present. Our own country, however, continues to have friendly relations with all countries, but the deterioration in the world situation has adverse results on the still continues to be an unhappy colonial outpost of the Portuguese Government, where every kind of liberty is suppressed and economic stagnation prevails. It is the firm policy of my Government that Goa should become free from colonial domination and should share in the freedom of the rest of India.
18. My Government regret that its relations development of peaceful relations and cooperation and economic development in our part of the world also. More particularly, the policy of military pacts based upon the balance of power, mutual suspicion and fear, has increased tensions in Asia and has led to the increase of armaments and extended the area of cold war. It continues to be the firm belief of my Government that only by a peaceful approach and agreed settlements can be found the right and hopeful way for solutions of the world's problems.
21. During the past year, the reorganisation of the States was completed, and this great task which had unfortunately roused much passion in some with Pakistan continue to present difficulties and there has been no abatement in Pakistan of the campaigns of hatred and 'jehad'. The policy of the Government of India and the general approach of ou*r people have been that we shall not respond to these with hatred, but shall continue our endeavours to promote friendly relations while defending our land and our legitimate interests. The exodus of people from East Pakistan to India' continued throughout this past year and assumed alarming proportions. Altogether, over four million people I have come from East Pakistan to ' India, and these persons have cast a
17
[ 18 MARCH 1957 ]
on the Table 18
reduce the drain on foreign exchange resources.
24. The major problem before the country in this context is that of con serving and increasing its foreign parts of the country, was accomplished. During the past year also, the First Five Year Plan was successfully completed and the Second Five Year Plan begun. This Plan, while continuing to lay stress on greater food production, emphasises the need for exchange resources.
For a country which starts with insufficient facilities for producing machinery and equip ment, a plan of industrialisation neces sarily involves heavy foreign exchange expenditure. Since it is difficult in industrial development, more especially in regard to heavy industry. The Community Projects and the National Extension Service have been extended with phenomenal rapidity over our rural areas and now cover two hundred and twenty thousand villages and a rural population of one hundred and twentynine millions. In the community development scheme, special stress is being laid on the development of small-scale and cottage industries.
22. Mineral surveys have yieMed promising discoveries of oil, and many new deposits of uranium ore have been located in Rajasthan and Bihar The finds of thorium and uranium minerals in large quantities have mi.re \han doubled our known reserves of these minerals. The work of our Atomic Energy Department has made t,reat progress, and India's first atomic reactor began operations last ytrr. This is the first reactor to go into operation in Asia, outside the Soviet Union.
j the short run to enlarge foreign I exchange earnings substantially, deve-j loping economies requ're an inflow of external resources in the initial stages. It is, however, incumbent on the country concerned to earn the maximum foreign exchange it can and to exercise the utmost economy in the matter of imports. The recent agreement with the United States Government, under which large quantities of wheat, rice and cotton will be available to us on credit terms, will help in checking the rise in prices and will contribute to the furtherance of the Plan. Considerable external finance will, we expect, be forthcoming from international agencies like the World Bank and from friendly countries. Nevertheless, the bulk of the resources required for development must come from within the country and the com-I munity has to be organised for a big : production effort to make this possible. i
23. We are about to complete the first
25. The second Plan gives high pri ority to industrialisation and to the diversification of the economic struc ture.
This, in turn, requires a sub stantial increase in the production of basic necessities like food and cloth and of raw materials required for the developing industries.
The Plan calls for more investment, and one of its principal aims is to enlarge employ ment opportunities.
New incomes created by investment and employ ment are mostly spent on food and cloth and it is only if their supplies can be increased rapidly that the Plan can go forward without creating an inflationary situation.
An increase year of the second Five Year Plan. Certain stresses and strains have emerged in the course of this year. Prices of certain commodities have risen and there has been a substantial draught on the foreign exchange resources of the country. These factors reflect the growing tempo of development in the country, in the public as well as in the private sectors. The growth of internal demand for consumption and for investment is a concomitant of rapid development and, up to a point, the emergence of such pressures is a sign that the resources of the country are being stretched in the interests of development. It is, however, essential to ensure that these pressures do not go too far. Government are determined to take in agricultural production thus consti appropriate measures to restrain the rise in prices and to tutes the pivot of developmental effort and for this we need the fullest cooperation of every section of the community.
19 Papers laid
[ RAJYA SABHA ]
on the Table 20
26. A statement of the estimated receipts and expenditure of the Government of India for the financial year 1957-58 will be laid before you for the purpose of passing votes on account authorising expenditure for a part of that year. In addition, a similar statement in respect of the Kerala State will also be laid before you for passing a vote on account for a part of the year for that State.
27. This session of Parliament will be a brief one and no major or controversial legislation ivill be taken up during this session. Some Ordinances which have been promulgated since the last session will be placed before Parliament.
28. Five Years ago this Parliament came Sabha. He had a very distinguished public career. I met him for the first time in 1926 when he was a practising Solicitor there. The last letter which I received from him was a few days before his death, regarding the award of a prize to the best Tilak biography. Tilak had a great influence on him, as his very name Bal Gangadhar suggests. Actually, towards the end of his life he was engaged as the Chairman of the Gandhi Sm'arak Nidhi, engaging himself in humanitarian work of great importance. Tilak and Gandhi have been the formative influences so far as his life was concerned. Whether as a valiant fighter for freedom, whether as Chief Minister of Bombay State or as High Commissioner in London, his work was characterised by courage, character, integrity and devotion. A clean, honest man of singular affability and charm, we mourn the loss of a great and noble son of this country.
As a mark of respect to his memory, I
request the House to stand up for a minute.
(The House then stood in silence for one minute.)
## Papers Laid On The Table
into existence representing the vast electorate of this great country, and it has laboured for the well-being and advancement of India and for peace and cooperation in the world. These labours have produced substantial results which we see all round us in the country, and I wish to offer you, Members of Parliament, my congratulations on the great tasks that have' been accomplished. But there is no resting place for any of us and the great story of the building up of a new and prosperous India will continue to unfold itself, bringing happiness to all our people and serving the cause of world peace and co-operation.
## Statement Of Bills Assented To By The President
29. I earnestly trust that the message of the SECRETARY: Sir, I beg to lay on the Buddha, whose anniversary we recently celebrated, will ever guide us, and the spirit of the Father of the Nation will continue to inspire us.
Table a statement showing the Bills which were passed by Parliament during the Fifteenth Session of the Rajya Sabha and assented to by the President.
## Statement Reference To The Passing Away Of Shri B. G. Kher
1. The Indian Tariff (Amend-
MR. CHAIRMAN: Before we pass on to
ment) Bill, 1956.
2. The Abducted Persons (Re-
other business, I should like to refer to the great loss which out-country has suffered by the passing away of Shri B. G. Kher, who was for some months a Member of the Rajya
covery and Restoration) Continuance Bill, 1956.
3. The Code of Civil Procedure
(Amendment) Bill, 1956. |
65c43c1957bc567107068242 | reports | # The Parliamentary Debates Official Report
IN THE HUNDRED AND TWENTY-FIFTH SESSION OF THE RAJYA SABHA
Commincing on the iSth February, 19S3J29 Magha, 1904 (Saht)
## Rajya Sabha
Friday, the 18th *February,* 1983/ 29 Magha,
1904 (Saka)
The House met at twenty minutes past twelve of the clock, Mr. Chairman in the Chair.
## Presidents Addbess
SECRETARY-GENERAL,: Sir, I beg to lay on the Table a copy (in English and Hindi)
of the President's Address to both the Houses of Parliament assembled together on the 18th February, 1983.
[Text of the President's Address in *Hindi]*
challenges and opportunities, which 'will require the united efforts
01 Parliament, Government, and the people.
2. On the economic side, the need is to tone up the economy, enhance production and productivity, eliminate non-productive expenditure and contain prices. In the midst of inflationary pressuras in several countries, we can take legitimate pride in our success in containing inflation. Wholesale prices in mid January, 1983 were only 2,8 per cent higher than 12 months earlier. And this in spi*e of widespread drought affecting- 48 Million hectares and 312 million C31.2 crores) people. The public distribution system was expanded and made more efficient,-About
50,000 fair price
. shops, were opened in the last three years.
This year the Central Government would be releasing to the States about - Rs. 7,000
million. , (Rs. 700 orores), the highest in any year for relief to victims of" drought, fioods and cyclones. Our sympathies go- to the
.people hit by these natural calamities and we admire their courage and the sense of duty of relief workers.
3. The. performance of our infrastructure
and our industry has main, tained
improvement. Between April and December, 1982, power generation rose by 7.2 par cent and production of coal by 4.2 per cent, cement by 10.2 per cent and fertilizers by 9.6 per cent. The railways increased the movement of freight by 3.5 per cent. The ports have, by and large, eliminated the waiting time of vessels. There has been a recovery in steel production. The high prices cf oil continued to be a burden on the economy, but domestic production of crude during the period rose by 30.6 per cent. Against 10.5 million (1.05 crores) tonnes in 1.980-81, production was 16.2 million (1.62 crores) tonnes in 1981-82 arid is anticipated to be
21 million (2.1 crores) tonnes in 1982- 83. In spite of the difficulties of balance of payments, unfavourable seasonal conditions,
and the severe constraint on resources, the economy achieved reasonable growth for a second successive year. The turnover of public sector has increased by 21 per cent in the first nine months of the current year. There has been significant expansion in the small industry sector which has maintained a rate of growth of around 10 per cent. Despite the problems faced by kharif and rabi, procurement of rice and wheat was higher than in any previous year. Government have given farmers the benefit of higher procurement prices.
of rural employment will be generated under the National Rural Employ, ment Programme. There has also. been significant spurt in the activties . of the Khadi and Village Industries Commission and efforts have been consciously made to link these with the overall effort towards rural employment. Drinking water facilities have been extended to a further 24,000 problem villages. More than 540,000 house sites have been provided. Loans-from the Housing and Urban Development
4. The increase in exports is being Corporation will help the Construction of
225,000 dwellings.v An additional irrigation potential of 2.35 million hectares is being created during the year.
6. As a token of the debt which the nation owes to persons who brought ' us freedom, the Government have enlarged the Freedom Fighters' Pension Scheme.
7. Government are vitally concerned with maintained. In the first sevpn months of the current financial year exports are expected to be about 17.8 per cent higher than the provisional figure of Rs. 39,600 million (Rs.
3960 crores) in the corresponding period of the previous year. The trend towards rapid increases in imports has been curbed. Although the overall import bill may show a rise to meet the developmental needs of our economy it will be possible to check the growth of imports further with the accelerated programme of oil exploration and production and increased investments in other sectors such as steel and fertilizers. Prices of the raw materials whch developing countries export have fallen sharply, while the prices of manufactured goods which we import have gone up considerably. The high interest rates in the West have further aggravated the situation for countries like India. '
the welfare of Scheduled Castes and Scheduled Tribes and have evolved a three.pronged strategy This consists of the Special Component plans of State Governments and Central Ministries, special Cent-al assis-' tance in addition to the States' Special component plans, and the Scheduled Castes Development Corporations. Special Central assistance for tribal, sub-plans has been stepped up from Rs. 850 million (Rs. 85 crores) to. Rs. 950 million (Rs. 95 crores) for 1982.83.
«
5. The world is going through a critical
8. The social and economic advan cement of the economically weaker sections and of the backward classes of our society will continue to be given priority in Government's deve lopment programmes.
A
Centrally
'
sponsored scheme of fishermen's in surance has been launched.
## •
9. There was a surge of popular support to and participation in the economic period. Many coun. tries are in the imp of recession and have been cutting down investment. We, however, were able to maintain the tempo of our development. Central Plan outlay has increased by 27 per cent and the total outlay on Central and State Plans put together has gone up bv 21 per cent. The Revised Twenty-Point Programme, which was announced on 14 January, 1982 with its emphasis on the service of the Poor and the weak, has shown heartening results. This year, more than 330 mililon additional mandays Family Planning Programmes.
During the Period April. 1982 to January,. 1983
the number of acceptors of.all fami-T
ly planning methods was 16 per cent '
higher than that for the eorre*oon-., out the considerations that will guide our decisions in the development of ding period of the previous year. Programmes for the control of leprosy, blindness and tuberculosis are being implemented with renewed vigour under the Revised Twenty-Point Programme.
indigenous technology and the import of such technology as will strengthen us. We shall pursue our search for technological self-reliance.
We are
10. Our concern for industrial paying attention to both basic science and to new areas like bio-technology, workers equals our concern for agri cultural workers and farmers.
The amendments to the Industrial Dis putes Act provide f°r internal ma chinery to settle grievances and en immunology, fast breeder technology in nuclear science and ocean engineering. Our second scientific expedition is now in Antarctica continuing important sure that labour courts give decisions within a
stipulated time.
!
I
11. Programmes and stretegies for
experiments and surveying the area for setting up a permanent manned station in future. Our work in the survey of polymetallic nodules on the ocean floor
hag been rewarded with our recognition,
at the Conference of Law of the Sea, as a
pioneer investor. We are the only developing country so recognised.
15. INSAT-1B which will be launched improving the quality of education, eradicating adult illiteracy and universalising elementary education in the age group of 6—14 continued to receive high priority with special emphasis on the education of girls.
this year will help us to attain a high level of telecommunication, television and meteorological capability.
It will
12. Two significant events of last year incorporate the modifications required in, the light of our experience with INSAT-
1A, the basic design of which was sound.
16. Honourable Members are aware of which will have a far-reaching impact on the future of our young people, and their physical and mental altemess, are the creation of a De. partment of Sports and the successful holding of Asian Games.
The manner in which the Games were organised has been widely acclaimed. The construction and upgradation of 17 stadia and sports facilities conforming to international standards proved our the problems we faced in ensuring continuity of fuel supplies for our Tarapur nuclear power reactor. These have now been sorted out in consultation with the Governments of France and USA.
17. I shall now turn to the domestic capacity to rise to major challenges. This infrastructure will serve our sportsmen and sportswomen in the years to come.
13. The Games also provided the ocpolitical scene. Divisive and disruptive forces are at work fomenting violence and weakening the national fabric. These must be fought resolutely. Government have taken the initiative to associate the Opposition in discussions on major issues like those relating to Assam and the Punjab, an<j this welcome trend must continue. Communal and anti.national elements have been indulging in casion for the extension of television to many new areas and the introduction of colour telecasting. Our television policy will give special attention to the needs of our rural population and the utilisation of this powerful medium for education and development.
14. Jt has been an eventful year for our objectionable activities in many areas and these will have to be effectively curbed.
Extremist organisations have been
active in acience and technology. We have formulated and announced a | Technology Policy Statement setting certain aortfa-eastern States and territories.
We have adopted a well-coordinated drive to combat these activities and maintain peace and normalcy. Meanwhile the tempo of development effort all over the northeastern region has been stepped up.
of Bangladesh. These have led to a strengthening of friendly relations. The third round °f official-level talks with China on the boundary question and other bilateral matters took place in Beijing last month. Our relations with Bhutan, Nepal, and Sri Lanka have maintained their even course.
18. Elections have recently taken place in
22. Our policy of non-aligned has helped Andhra Pradesh, Karnataka, Tripura and the Union Territory of Delhi and in Haryana, Himachal Pradesh, Kerala and West Bengal earlier.
Polling has just concluded in Meghalaya and is in progress in Assam) These elections have been part of our democratic tradition and a constitutional obligation.
19. The international situation has deteriorated.
The escalation of foreign us to work unswervingly for the objectives of peace, friendship and stability throughout the world and in our region. As Honourable Members are aware, the Seventh Conference of Non-Aligned Countries will take place early next month in New Delhi. We are playing host to it at the unanimous request of the non-alig(ned community, it win be the largest gathering of Heads of nations to be helQ in our country. It fe our ardent hope that the summit will make an important contribution to the solution of the problems besetting the international community. Later in the year another major conference is being held in the Capital—the Commonwealth Heads of Government Meeting. We must put all our energies into the task of making a success of both these conferences.
23. I should also refer to the visits of my military intrusion in the Indian Ocean in disregard of the wishes of littoral States, the continuing war between Iran and Iraq, the increasing recklessness of Israel and the sufferings of the Palestinians, the aggressive acts of the racist regime of South Africa against its own people and its neighbours and the lack of progress in the Disarmament Talks and in North-South dialogue are all matters of concern. Political solutions are yet to be found to the situations in South-West and South- East Asia.
20. Certain developments in our neighbourhood have worsened our security environment. The entire nation is exercised over the acquisition of sophisticated predecessor to Ireland and Yugoslavia and of our Prime Minister to the United Kingdom, Saudi Arabia, the United States of America, Japan, Mauritius, Mozambique and the Union of Soviet Socialist Republics and the visits of India of the Presidents of Tanzania and Greece, King of Bhutan, the Presidents of Mozambique, Algeria, Nauru, Pakistan, France, Egypt and Nigeria, the Prime Ministers of the United Kingdom, Nepal and Mauritius, the Chairman of the P.L.O., the Chief Martial Law Administrator of weaponry by our neighbour, Pakistan. Our own policy has been to pursue initiatives and improve relations with our neighbours. It is hoped that the meetings that have taken place with the President of Pakistan and between officials of the two countries will eventually lead to the conclusion of an enduring relationship of peace, friendship and
Bangladesh as well as other statesmen. These exchanges have been of mutual benefit.
cooperation.
24. Hon. Members, the economic and political crises in the world
21. We have also had talks with the Chief Martial Law Administrator Though leading a super-power country Mr.
Brezhnev fully realised the consequences of a third World War and a nuclear holocaust. As such, he untiringly worked for lasting world peace and deten,te arid put forward several proposals for .limiting nuclear arsenals and strategic arms which culminated in the signing of the Strategic Arms Limitation Treaty with the U.S.A.
For us the passing away of Mr. Brezhnev is loss of a true and steadfast friend who had always shown keen interest in the have led to a sharpening of tensions which India can withstand only through vigilance, unity and the optimal use of its own productive capacity. Apart from fighting corruption and inefficiency, it must be ensured that differences are not aired in a manner which provokes violence or weakens our secular democratic fabric. In the last three years we have been able to a maintain stability and progress. It is my earnest entreaty that the entire nation will work together to maintain India's integrity and enhance its welfare and good name.
25. I urge Honourable Members to approach the vital tasks before them in a spirit of cooperation and harmony. I wish you all success in the budgetary, legislative and other business that awaits you. JAI HIND.
development and well-being of this country. He had developed a close friendship and established a personal rapport with the Prime Minister Shrimati Indira Gandhi, and in spite of his busy schedule, he vsited this country twice during the last decade. It was under his leadership that the Indo-Soviet Cooperation and Friendship Treaty was signed, and economic trade scientific and cultural exchanges acquired a *new* dimension and achieved maturity. His death is as much a loss to Sndia as it is to the Soviet Union.
## Obituary References
MR, CHAIRMAN: I refer wi'.h profound Mr. Brezhnev showed the friendliest interest in our progress and, if I may say so, there had never been the slightest suggestion, implicit or explicit, that we should line up with the Soviet Union on issues having international bearing.
sorrow to the passing away of Mr. Leonid Ilyich Brezhnev, President of the U.S.S.R,, Acharya Vinoba Bhave, Shri Mahendra Mohan Chaudhury, an ex-Member, Shri Piloo Mody a sitting Member, Shrimati Yashoda Reddy and Shri C. K. Daphtary, ex-Members of this House.
Bom in a steel worker's family in 1906, in, In the death of Mr. Leonid Ilyich the Ukraine Province of the Soviet Union, Mr. Leonid Brezhnev joined the Communist Party at the young age of 17. In the early days of his life, he was engaged in land reclamation and agricultural work, but he joined the Institute of Metallurgy in 1935 and qualified from there as an engineer. He soon worked his way up, but during the Second World War wits drafted in the Soviet Army. When the War came to an end,. he had risen to the rank of Lt.-General. A'l'ter the War, he was actively engage 1 in party and State affairs and slowly rose in the party hierar-
Brezhnev, President of the Soviet Union, General Secretary of the Central Committee of the Communist Party of the U.S.S.R:, the world has lost an outstanding leader who guided the destiny of not only his country, but the whole world for nearly two decades. He was not the Leader of the Soviet Union alone; he was in a way an important leader of mankind and by virtue of his policies, he influenced the course of history in many ways. |
65c43c1957bc56710706821d | reports |
## Address By The Hon'Ble President Of India Smt. Droupadi Murmu To Parliament New Delhi, January 31, 2024 Honorable Members,
1.
This is my first address in this new Parliament building. This magnificent building has been constructed at the beginning of "Azadi ka Amrit Kaal".
It is imbued with the fragrance of 'Ek Bharat Shreshtha Bharat' and is a testimony to India's civilization and culture. It also resonates with the resolve to respect our democratic and parliamentary traditions. Moreover, it embodies the commitment to forge new traditions for the new India of the 21st century. I am confident that this new building will be witness to productive dialogue on policies -- policies that will shape the development of 'Viksit Bharat' in the Amrit Kaal of our independence. I extend my best wishes to all of you.
2.
This year is also the 75th year of adoption of our Constitution.
During this period, Amrit Mahotsav, the celebration of 75 years of independence, was completed. During this period, many programmes were organized across the country. The country remembered its unsung freedom fighters. After 75 years, the young generation relived that period of freedom struggle.
3.
During this campaign:
Amrit Kalash containing soil from every village of the country were
brought to Delhi under the 'Meri Maati, Mera Desh' campaign.
Over 2 lakh plaques were installed. More than three crore people took the oath of the 'Panch Pran'. More than 70,000 Amrit Sarovars were built. Construction of more than two lakh "Amrit Vatikas" was completed. Over two crore trees were planted. More than 16 crore people uploaded their selfies with the
Tricolour.
4.
It was during the Amrit Mahotsav that,
A statue of Netaji Subhash Chandra Bose was installed on
"Kartavya Path".
A museum dedicated to all the Prime Ministers of the country
was inaugurated in Delhi, the national capital.
Shantiniketan and Hoysala Temple were included in the World
Heritage List.
Veer Bal Diwas was declared in the memory of "Sahibzaade". Birth anniversary of Bhagwan Birsa Munda was declared as
"Janjatiya Gaurav Diwas".
August 14 was declared as "Vibhajan Vibhishika Smriti Diwas"
to commemorate the horrors of partition.
5.
The past year has been full of historic achievements for India. During this period, there were many moments which enhanced the pride of our countrymen.
Amidst serious global crises, India emerged as the fastestgrowing major economy, consistently maintaining a growth rate of over 7.5 percent for two consecutive quarters.
India became the first country to hoist its flag on the southern
pole of the Moon.
India successfully launched the Aditya Mission and its satellite
reached a distance of 15 lakh kilometers away from Earth.
Success of the historic G-20 Summit strengthened India's
global standing.
India won more than 100 medals for the first time in Asian
Games.
We also won more than 100 medals in Para Asian Games. India got its largest sea-bridge, the Atal Setu. India got its first Namo Bharat train and the first Amrit Bharat
train.
India became the country with the fastest 5G rollout in the
world.
An Indian Airline company executed the world's largest aircraft
deal.
Last year, my government has given government jobs to lakhs
of youth in mission mode.
6.
Over the past 12 months, my government introduced several important legislations. These laws have been enacted with the cooperation of all parliamentarians.
These are laws that lay a strong foundation for the realization of vision of 'Viksit Bharat'. I appreciate all of you for having enacted the Nari Shakti Vandan Adhiniyam after a wait of three decades. This has paved the way for ensuring greater participation of women in the Lok Sabha and the Legislative Assemblies. This strengthens my government's resolve for women-led development. My government has continuously upheld its commitment to Reform, Perform and Transform. The criminal justice system rooted in the era of slavery is now history. Now, justice takes precedence over punishment. The nation has got a new Nyaya Sanhita based on the principle of 'Justice First'. The Digital Personal Data Protection Act will make the digital space more secure. "Anusandhan National Research Foundation Act" will strengthen research and innovation in the country. The Jammu and Kashmir Reservation Act will ensure the right to representation to tribals there. During this period the Central University Act was amended. This paved the way for setting up a Sammakka Sarakka Central Tribal University in Telangana. Last year, 76 other old laws were also repealed. My government is aware of the concerns of youth regarding irregularities in examinations. Therefore, it has been decided to enact a new law to deal sternly with such malpractices.
7.
Any nation can progress at a fast pace only when it overcomes the past challenges and invests maximum energy in the future.
Over the past 10 years, India has witnessed several such tasks being accomplished in the national interest, for which the people of the country were waiting for decades. For centuries, there was an aspiration to construct the Ram Mandir. Today it is a reality. There were doubts regarding the removal of Article 370 from Jammu and Kashmir. Those are now history. This Parliament also enacted a strict law against 'Triple Talaq'. This Parliament also enacted a law to grant citizenship to persecuted minorities from our neighboring countries. My government also implemented One Rank One Pension, which was awaited for four decades. After implementation of OROP, the ex-servicemen have by now received approximately Rupees 1 lakh crore. For the first time, a Chief of Defence Staff has been appointed for India's defence forces.
8.
The immortal lines of Utkalmani Pandit Gopabandhu Das inspire the sentiment of boundless patriotism. He had said,
�मशु मोर देह ए देश मा�टरे, देशबासी चा�ल जाआ�तु �प�ठरे। देशर �वरा�य-पथे जेते गाड़, पू� त�हं प�ड़ मोर मांस हाड़।
that is Let my body dissolve in the soil of this country, Let the countrymen ride on my back and go. All the potholes that are there in the country's path to independence, Let them all be filled with my flesh and bones. In these lines we see the pinnacle of duty and the ideal of Nation- First.
9.
The achievements that are visible today are the outcome of the endeavors of last 10 years.
Since childhood, we have been hearing the slogan of 'Garibi Hatao'. Now, for the first time in our lives, we are witnessing eradication of poverty on a massive scale. According to NITI Aayog, in the last one decade of my Government, about 25 crore countrymen have been lifted out of poverty. This is something that instills great confidence among the poor. If the poverty of 25 crore people can be alleviated, then her poverty can also be alleviated.
10.
If we look at various dimensions of the economy today, then it boosts our confidence that India is moving forward in the right direction, taking right decisions.
In the last 10 years:
We have seen India transform from "fragile five" to a "top five" economy.
India's exports have increased from about $450 billion to more than $775 billion.
FDI flows have doubled.
Sales of Khadi and Village Industries products have increased by more than 4 times.
The number of people filing Income Tax Return has increased from about 3.25 crores to about 8.25 crores i.e., it has more than doubled.
A decade ago:
There were only a few hundred start-ups in the country which have grown to more than one lakh today.
94 thousand companies were registered in a year. Now this number has increased to 1 lakh 60 thousand.
In December 2017, 98 lakh people used to pay GST, today their number is 1 crore 40 lakh.
Around 13 crore vehicles were sold in the 10 years before 2014. In the last 10 years, countrymen have purchased more than 21 crore vehicles.
About 2 thousand electric vehicles were sold in 2014-15. Whereas, till the month of December for the year 2023-24, about 12 lakh electric vehicles have been sold.
11.
In the last decade, my government has made good governance and transparency the main foundation of every institution.
As a result of this, we have witnessed major economic reforms.
During this period, Insolvency and Bankruptcy code was enacted in
the country.
The country now has One country One Tax law in the form of GST. My Government has also ensured macro-economic stability. In 10 years, Capex has increased 5 times to Rupees 10 lakh crore.
Fiscal Deficit is also under control.
Today, we have Forex reserves in excess of 600 billion US dollars. Our banking system, which was in a very bad shape earlier, has
today become one of the strongest banking systems in the world.
NPAs of banks which used to be in double digits in the past are today
around only 4 percent.
Make in India and Aatmanirbhar Bharat campaigns have become our
strengths.
Today, India is the world's second-largest producer of mobile phones. During the last decade, there has been a five-fold increase in mobile
phone manufacturing.
A few years ago, India used to import toys, today India is exporting
Made in India toys.
India's defence production has crossed Rupees one lakh crore. Today, every Indian feels proud on seeing the country's indigenous
aircraft carrier INS Vikrant.
The combat aircraft Tejas is becoming the strength of our air force. The manufacturing of C-295 transport aircraft is going to take place in
India.
Modern aircraft engines will also be made in India. Defence corridors are being developed in Uttar Pradesh and Tamil
Nadu.
My government has ensured participation of the private sector in the
defence sector.
Our government has opened up the space sector also for young startups.
12.
My government acknowledges the contribution of wealth creators and believes in the capabilities of India's private sector.
We are committed to creating a conducive environment for doing business in India, and the government is consistently working towards this goal.
There has been consistent improvement in Ease of Doing Business. More than 40,000 compliances have been removed or simplified in
the last few years.
63 provisions in the Companies Act and Limited Liability Partnership
Act have been removed from the list of criminal offences.
The Jan Vishwas Act has decriminalized 183 provisions under
various laws.
A Mediation law has been enacted for amicable resolution of disputes
outside the court.
Forest and Environment Clearances now take less than 75 days
whereas it used to take 600 days earlier.
Faceless Assessment Scheme has brought greater transparency in
tax administration.
13.
Our MSME sector is also benefiting enormously from reforms.
As you are aware, today, crores of citizens are working in MSMEs. Our government is working with full commitment to empower the MSMEs and small entrepreneurs.
The definition of MSMEs has been expanded. Investment and turnover have been added in the new definition. Presently, approximately 3.5 crore MSMEs are registered on the
Udyam and Udyam Assist Portal.
Under the Credit Guarantee Scheme for MSMEs, guarantees of
nearly Rupees 5 lakh crore have been sanctioned in the last few years.
This is over six times higher than the amount provided in the
preceding decade before 2014.
14.
Another significant reform of my government is the creation of Digital India. Digital India has made life and business much easier in India.
Today, the whole world acknowledges this as a great achievement of India. Even developed countries do not have a digital system like India has. It was beyond the imagination of some people that, even in villages, routine buying and selling will be done digitally.
Today, 46 percent of the world's total real-time digital transactions
take place in India.
A record 1200 crore transactions were done through UPI last month. This amounts to a record transaction of Rupees 18 lakh crore. Other countries of the world are also now providing the facility of
transactions through UPI.
Digital India has made banking more convenient and disbursement of
loans easier.
The trinity of Jan Dhan Aadhar Mobile (JAM) has helped curb
corruption.
My government has so far transferred Rupees 34 lakh crore through
DBT.
Thanks to Jan Dhan Aadhar Mobile (JAM), about 10 crore fake
beneficiaries have been weeded out from the system.
This has helped prevent Rupees 2.75 lakh crore from going into
wrong hands.
The facility of DigiLocker is also making life easier. More than 6 billion
documents have so far been issued to its users.
Digital Health IDs of around 53 crore people have been created under
Ayushman Bharat Health Account.
15.
Along with digital, there has been record investment in physical infrastructure. Today, infrastructure is being built in India, the kind of which every Indian used to dream about.
In the last 10 years:
Nearly 3.75 lakh kilometers of new roads have been built in the
villages.
The length of National Highways has increased from 90 thousand
kilometers to 1 lakh 46 thousand kilometers.
The length of four-lane national highways has increased 2.5 times. The length of the high-speed corridor was 500 kilometers earlier, is
now 4 thousand kilometers.
The number of airports has doubled from 74 to 149. Cargo handling capacity at major ports of the country has doubled. The number of broadband users has increased 14 times. Nearly 2 lakh village panchayats of the country have been connected
with optical fiber.
More than 4 lakh common service centers have been opened in
villages. These have become a major source of employment.
10,000 kilometers of gas pipeline has been laid in the country. One Nation, One Power Grid has improved power transmission in the
country.
One Nation, One Gas Grid is boosting gas-based economy. The metro facility, limited to only 5 cities is now in 20 cities. More than 25 thousand kilometers of railway tracks were laid. This is
more than the total length of railway tracks in many developed countries.
India is very close to 100% electrification of railways. During this period, semi high-speed trains have been started for the
first time in India.
Today Vande Bharat trains are running on more than 39 routes. More than 1300 railway stations are being transformed under Amrit
Bharat Station Scheme.
16.
My government believes that the grand edifice of a 'Viksit Bharat' will be erected on 4 strong pillars.
These pillars are - youth power, women power, farmers and poor. Their situation and dreams are similar in every part and every section of society in the country. My government is, therefore, working tirelessly to empower these four pillars. My government has spent a significant portion of the tax revenues to empower these pillars.
4 crore 10 lakh poor families have got their own pucca houses. About
Rupees 6 lakh crore have been spent on this initiative.
For the first time, piped water has reached about 11 crore rural
families.
Around Rupees 4 lakh crore are being spent for this. 10 crore Ujjwala gas connections have by now been provided. These beneficiary sisters are also being provided cooking gas at very
cheap rates.
Government has spent around Rupees 2.5 lakh crore on this scheme. Since the outbreak of coronavirus pandemic, 80 crore countrymen
are being given free ration.
This facility has now been extended for another 5 years. An additional Rupees 11 lakh crore would be spent on this. My government's endeavour is to ensure speedy saturation under
every scheme. No eligible person should remain deprived.
With this objective, Viksit Bharat Sankalp Yatra has been underway
since 15th November. So far, around 19 crore citizens have participated in this yatra.
17.
In the last few years, the world has witnessed two major wars and faced a global pandemic like Corona.
Despite such global crises, my government has managed to keep inflation in the country under control, preventing additional burden on our countrymen. In the 10 years prior to 2014, the average inflation rate was over 8 percent. However, the average inflation rate has been maintained at 5 percent in the last decade. My government's endeavour has been to increase savings in the hands of ordinary citizens.
Earlier, Income Tax in India was levied on income of Rupees 2 lakh
and above.
Today in India, there is no tax on income up to Rupees 7 lakh. Due to tax exemptions and reforms, Indian taxpayers have saved
about Rupees 2.5 lakh crore in the last 10 years.
In addition to the Ayushman Bharat scheme, the central government
is also providing free treatment in various hospitals. This has helped country's citizens save nearly Rupees three and a half lakh crore.
Jan Aushadhi Kendras have helped our countrymen save about
Rupees 28 thousand crore on purchase of medicines.
Prices of coronary stents, knee implants, cancer medicines have also
been reduced. Due to this, patients are saving approximately Rupees 27 thousand crore every year.
My government is also running a programme to provide free dialysis
to kidney patients. More than 21 lakh patients are availing this facility every year. This has helped patients save Rupees one lakh every year.
My government has spent nearly Rupees 20 lakh crore so that poor
people continue to receive subsidized rations.
Railways gives about 50 percent discount on every passenger
travelling by Indian Railways. Due to this, poor and middle class passengers save Rupees 60 thousand crore every year.
The poor and middle class are getting air tickets at lower prices.
Under the UDAN scheme, the poor and middle class have saved more than Rupees three thousand crore on air tickets.
Thanks to the LED bulb scheme, there has been a saving of over
Rupees 20,000 crore in electricity bills.
Under Jeevan Jyoti Bima Yojana and Suraksha Bima Yojana, poor
people have received over Rupees 16,000 crore in claims.
18.
My government is working at every level to strengthen Nari Shakti.
This year's Republic Day Parade was also dedicated to women empowerment. In this parade, the world once again witnessed the capability of our daughters. My government has enlarged the role of daughters everywhere - in water, land, sky and space. We all are aware what economic independence means for women. My government has made relentless efforts to enhance women's economic participation.
Today about 10 crore women are associated with **Self-help groups**. Bank loans worth Rupees 8 lakh crore and financial assistance worth
Rupees 40 thousand crores have been disbursed to these groups.
The government is implementing a campaign to make 2 crore women
Lakhpati Didis.
15 thousand drones are being provided to groups under NAMO
Drone Didi scheme.
Increasing **maternity leave** from 12 weeks to 26 weeks has greatly
benefited lakhs of women of the country.
Our government has granted permanent commission to women for
the first time in the Armed Forces.
For the first time, women cadets have been given admission in Sainik
Schools and National Defence Academy.
Today, **women are also fighter pilots** and are also commanding
naval ships for the first time.
Out of more than 46 crore loans extended under Mudra Yojana, more
than 31 crore loans have been given to women.
Crores of women have become self-employed by availing benefits
under this scheme.
19.
My government is laying stress on making farming more profitable. Our aim is to reduce the cost of farming while increasing profits.
For the first time, my government has given priority to over 10 crore small farmers in the country's agricultural policy and schemes.
Under the **PM-Kisan Samman Nidhi** scheme, farmers have received
over Rupees 2 lakh 80 thousand crore so far.
Over the past 10 years, there has been a threefold increase in easy
loans for farmers from banks.
Under the **Pradhan Mantri Fasal Bima Yojana**, farmers paid a
premium of Rupees 30 thousand crore. In return, they have received a claim of Rupees 1.5 lakh crore.
In the last 10 years, farmers have received nearly Rupees 18 lakh
crore as MSP (Minimum Support Price) for paddy and wheat crops.
This is 2.5 times more than the preceding 10 years before 2014. Previously, the government procurement of oilseeds and pulses
crops was negligible.
In the last decade, farmers producing oilseeds and pulses have
received over Rupees 1.25 lakh crore as MSP.
It is our government that has formulated the Agricultural Export
Policy in the country for the first time.
This has led to agricultural exports reaching up to Rupees 4 lakh
crore.
In 10 years, more than Rupees 11 lakh crore have been spent to
provide fertilizers to farmers at affordable prices.
My government has established more than 1.75 lakh Pradhan Mantri
Kisan Samriddhi Kendra.
So far, around 8,000 Farmer Producer Organizations (FPOs) have
been formed.
My government is promoting cooperatives in agriculture. Therefore, a
Ministry of Cooperation has been established for the first time in the country.
The world's largest **Grain Storage plan** has been launched in the
cooperative sector.
In villages where there are no cooperative societies, 2 lakh societies
are being established.
Schemes worth more than Rupees 38 thousand crore are being
implemented in the fisheries sector, due to which fish production has increased from 95 lakh metric tonnes to 175 lakh metric tonnes i.e. almost doubled in the last ten years.
Inland fisheries production has increased from 61 lakh metric tonnes
to 131 lakh metric tonnes.
Exports in fisheries sector has more than doubled i.e., increase from
Rupees 30 thousand crore to Rupees 64 thousand crore.
For the first time in the country, livestock farmers and fishermen have
been given the benefit of Kisan Credit Card.
In the last decade, per capita milk availability has increased by 40
percent.
The first free vaccination campaign is underway to protect animals
from foot and mouth diseases.
So far, more than 50 crore doses have been administered to animals
in four phases.
20.
All these public welfare schemes are not just services. These are having a positive impact on the life cycle of the citizens of the country.
The outcomes of my government's schemes have been the subject of studies by various government and non-government organizations. The outcomes of these schemes have been impactful and will serve as inspiring examples for every country engaged in combating poverty. Studies conducted by various institutions in recent years have found that:
Construction of 11 crore toilets and elimination of open defecation
have prevented incidence of many diseases.
As a result, every poor household in the urban area is saving up to
Rupees 60 thousand per year on medical expenses.
Supply of piped drinking water is saving lives of lakhs of children
every year.
Construction of pucca houses under the PM Awas Yojana has
enhanced the social status and dignity of the beneficiary families.
Education of children in families having 'pucca' houses has improved
and has resulted in a decline in the dropout rates.
Under the Pradhan Mantri Surakshit Matritva Abhiyan, 100 percent
institutional deliveries are taking place in the country today. This has resulted in a sharp decline in maternal mortality rate.
According to another study, incidence of serious diseases has
reduced in the Ujjwala beneficiary families.
21.
My government is focussed on human-centric development. The dignity of every citizen is paramount for us. This is our idea of social justice. This is also the spirit of every article of the Constitution of India.
For a long time there was discussion only on rights. We also stressed on the duties of the government. This has awakened a sense of duty among the citizens also. Today, a feeling has been generated that performance of one's duties ensures a guarantee of one's rights. My government has also cared for those who have so far been away from the development stream. During the last 10 years, thousands of tribal villages have been provided with electricity and road connectivity for the first time. Lakhs of tribal families have now started getting piped water supply. Under a special campaign, my government is also providing 4G internet connectivity to thousands of villages inhabited largely by tribals. Establishment of Van Dhan Kendras and MSP on more than 90 forest produce have immensely benefitted the tribals. For the first time, my government has focused on development of the particularly vulnerable tribal groups. **PM JANMAN Yojana** with an outlay of around Rupees 24 thousand crore has been launched for these groups. Generations of tribal families have been afflicted with sickle cell anemia. For the first time, a national mission has been launched to address this. So far, about one crore forty lakh people have been screened under this mission. My government has also launched the 'Sugamya Bharat Abhiyan' for the "Divyangjan". Textbooks in Indian Sign Language have also been made available. A law has also been enacted to give a respectable position to transgender persons in the society and protect their rights.
22.
It is difficult to imagine daily life without Vishwakarma families. These families pass on their skills from generation to generation. However, due to lack of government support, our Vishwakarma companions were facing a difficult time. My government has also taken care of such Vishwakarma families. So far, more than 84 lakh people have connected with the PM Vishwakarma Yojana.
For many decades, our friends working as street vendors were also left to their fate. My government has given them access to banking system through PM SVANidhi Yojana. So far, an amount of more than Rupees 10,000 crore has been given as loans. Reposing trust in them, government gave collateral-free loans. Cementing this trust, most of the people not only repaid the loan but also availed the next installment. Majority of the beneficiaries are Dalits, backward classes, tribals and women.
23.
My government guided by the mantra of "Sabka Saath, Sabka Vikas, Sabka Vishwas and Sabka Prayas", is committed to provide fair opportunities to every section of the society.
For the first time, benefit of reservation has been extended to persons
belonging to economically weaker sections of the general category.
27 percent reservation has been introduced under central quota for
OBCs in under graduate and postgraduate medical courses.
Constitutional status has been granted to National Commission for
Backward Classes.
5 places associated with Baba Saheb Ambedkar have been
developed as Panchteerth.
10 museums dedicated to tribal freedom fighters are being built
across the country.
24.
My government has, for the first time, brought development to areas, which remained neglected for decades. The villages adjoining our borders were viewed as the last villages of the country. We recognized them as the first villages of the country. In order to develop these villages, **Vibrant Village Programme** has been started.
Our remote and faraway islands like Andaman-Nicobar and Lakshadweep were also deprived of development. My government has developed modern facilities on these islands too. Roads, air connectivity and high speed internet facilities have been provided there. Just a few weeks ago, Lakshadweep was also connected with underwater optical fiber. This will benefit the local population as well as tourists. Under the Aspirational Districts Programme, our government has laid emphasis on development of more than hundred districts of the country. In the wake of its success, the government has also launched the Aspirational Blocks Programme. Special focus is now being given on development of these blocks of the country which had lagged behind.
25.
Today my government is building modern infrastructure along the entire border. This work should have been done long ago on priority basis. Be it terrorism or expansionism, our forces today are giving a befitting response.
The tangible results of my government's efforts to strengthen internal security are visible to us.
There is a sense of security in Jammu and Kashmir today. The earlier deserted look of marketplaces due to strike has been
replaced by the hustle and bustle of crowded markets.
There has been significant reduction in the incidents of separatism in
the North East.
Many organizations have taken steps towards permanent peace. Naxal affected areas have shrunk and there has been a steep decline
in Naxal violence.
26.
This is the time for India to script the future for the coming centuries. Our ancestors have bequeathed us a legacy spanning thousands of years. Even today, we remember with pride the exceptional achievements of our ancestors. Today's generation should also build a lasting legacy that will be remembered for centuries.
Hence, my government is now working on a grand vision. This vision also has a programme for the next 5 years. It also has a roadmap for the next 25 years. For us, the vision of Viksit Bharat is not limited to economic prosperity alone. We are giving equal importance to social, cultural and strategic strengths. Without them, the development and economic prosperity would not be permanent. The decisions of the last decade have also been taken with this objective in mind. Many more steps are being taken keeping this goal in mind.
27.
Today every agency in the world is assured of India's rapid development. The assessments of the national and international agencies are based on India's policies. Record investments in infrastructure and policy reforms are further boosting investors' confidence. The preference of Indians for a stable and strong government with full majority has also renewed the confidence of the world.
Today the world believes that only India can strengthen the global supply chain. That is why India is also today taking major steps in this direction. A strong network of MSMEs is being developed in the country. My government has started PLI schemes for 14 sectors. Under this scheme, production of around Rupees 9 lakh crore has taken place so far. This has generated lakhs of new employment and selfemployment opportunities in the country. PLI is also benefiting the electronic, pharma, food processing and medical devices sectors. Production has started in dozens of projects related to medical devices. My government has also developed 3 bulk drug parks in the country.
28.
Today Made in India has become a global brand. Now, the world is much enthused about our Make in India policy. The world is appreciating the objective of "Atma Nirbhar Bharat". Today companies from all over the world are excited about the emerging sectors in India. This is illustrated by investment in the semiconductor
sector. Electronics and automobile sectors also stand to benefit significantly from the semiconductor sector. My government is promoting green mobility in a big way. Lakhs of electric vehicles have been manufactured in the country in the last few years alone. We have now taken steps even for manufacturing of big aircrafts in India. Crores of new jobs will be created in the manufacturing sector in the coming days.
29.
Today world over, there is a special demand for products which are environment friendly. That is why my government is emphasizing on Zero Effect Zero Defect. We are now giving a lot of focus to green energy.
In 10 years, non-fossil fuel based energy capacity has increased from
81 Gigawatt to 188 Gigawatt.
During this period, solar power capacity has increased by 26 times. Similarly, Wind power capacity has doubled. We are placed at fourth position in the world in terms of Renewable
Energy Installed Capacity.
We are ranked fourth in Wind Power capacity. We are at fifth position in Solar Power capacity. India has set a target of achieving 50 percent of its electric power
installed capacity from non-fossil fuels by 2030.
In the last 10 years, 11 new solar parks have been built. Today, work
is in progress on 9 solar parks.
Just a few days ago, a new scheme for solar rooftop installations has
been launched. 1 crore families will be provided assistance under this
scheme. This will also reduce people's electricity bills and surplus electricity generated will be purchased in the power market.
Work is also being done at a very fast pace in the field of nuclear
energy. My government has approved 10 new nuclear power plants.
India is also progressing at a fast pace in the field of Hydrogen
energy. So far, we have started two projects in Ladakh and Daman- Diu.
My government has done unprecedented work in the field of Ethanol.
The country has achieved the target of 12 percent Ethanol blending. The target of 20 percent ethanol blending is also going to be accomplished very soon. This will increase the income of our farmers. Till now, government companies have procured Ethanol worth more than Rupees one lakh crore. All these efforts will reduce dependence on foreign countries for our energy needs. Just a few days ago, oil production has started in a new block in the Bay of Bengal. This is a big achievement for the country.
30.
The quantity of important minerals in the earth is limited. That is why my government is encouraging circular economy. India's first 'Vehicle Scrappage Policy' also seeks to achieve this aim.
It is also important to explore prospects of minerals through deep sea mining. Deep Ocean Mission has been started with this goal in mind. This mission will also better our understanding of marine life. India's 'Samudrayaan' is engaged in research on this. My government is engaged in making India a major space power in the world. It is a means to improve human life. Besides, this also attempts to increase India's share in the space economy. Major decisions have been taken to expand India's space programme. This has led to the formation of many new space startups. The day is not far when India's Gaganyaan will reach space.
31.
My government has made India one of the world's leading digital economies. This has provided employment to crores of youth.
It is our endeavour that India remains at the forefront of the world in the fourth industrial revolution. My government is working on Artificial Intelligence mission. This will provide new opportunities to the youth of India. This will open avenues for new startups. This will bring revolutionary changes in the fields of agriculture, health and education. My government has also approved the **National Quantum Mission**. Quantum computing will develop a new age digital infrastructure. Now work is in progress to ensure that India remains ahead in this.
32.
My government is continuously taking new initiatives for the education and skill development of India's youth. For this, a new National Education Policy was framed and is being implemented rapidly.
In the National Education Policy, emphasis has been laid on education in mother tongue and Indian languages. Teaching of subjects like engineering, medical, law has been started in Indian languages. To provide quality education to school students, my government is working on more than 14,000 'PM Shri Vidyalayas'. Out of these, more than 6000 schools have started functioning. The dropout rate in the country has reduced due to efforts of my government. The enrolment of girls in higher education has increased. Enrolment of Scheduled Caste students has increased by about 44%, that of Scheduled Tribe students by more than 65% and that of OBC by more than 44%. Under Atal Innovation Mission, 10,000 Atal Tinkering Labs have been established to promote innovation. More than 1 crore students are involved in it. There were 7 AIIMS and less than 390 medical colleges in the country upto 2014, while, in the last decade 16 AIIMS and 315 medical colleges have been established. 157 nursing colleges are also being established. In the past decade, the number of MBBS seats has more than doubled.
33.
Tourism is a big sector providing employment to the youth. In the last 10 years, my government has done unprecedented work in the field of tourism. Along with the number of domestic tourists in India, the number of foreign tourists coming to India has also increased.
The reason for the growth in the tourism sector is owed to India's growing stature. Today the world wants to explore and know India. Apart from this, the scope of tourism has also increased due to excellent connectivity. Building of airports at various places is also advantageous. Now, North East is witnessing record tourist arrivals. Now there is heightened excitement about Andaman-Nicobar and Lakshadweep islands. My government has laid emphasis on the development of pilgrimage destinations and historical sites across the country. This has now made pilgrimage in India easier. At the same time, there is a growing interest in the world towards heritage tourism in India. In the last one year 8.5 crores of people have visited Kashi. More than 5 crores of people have visited Mahakaal. More than 19 lakh people have visited Kedar Dham. In the 5 days of "Pran Pratishtha" 13 lakh devotees have visited Ayodhya Dham itself. There is unprecedented expansion of facilities at pilgrimage sites in every part of India, East-West-North- South. My government also wants to make India a leading destination for meetings and exhibitions related sectors. For this, facilities like Bharat Mandapam, Yashobhoomi have been created. In near future, tourism will become a major source of employment.
34.
We are strengthening the **sports economy** to connect the country's youth with skills and employment. My government has given unprecedented support to sports and sportspersons. Today India is moving towards becoming a great sporting power.
Along with the players, today we are also emphasizing on other areas related to sports. Today National Sports University has been established. We have developed dozens of Centers of Excellence in the country. This will provide youth an opportunity to choose sports as a profession. All kinds of assistance is also being provided to the sports goods industry. In the last 10 years, India has successfully organized international sports events related to many sports. 'Mera Yuva Bharat' Organization has been formed to motivate our youth to contribute for building a 'Viksit Bharat' and to instill among them a sense of duty and spirit of service. So far, about 1 crore youth have joined this initiative.
35.
We have seen the advantage of having a strong government during a period of upheaval. The world has been in a turmoil in the last 3 years. There are many conflicts raging in different parts of the world. My government has established India as a Vishwa-Mitra in these difficult times. It is because of India's role as Vishwa-Mitra that we have become the voice of the Global South today.
In the last 10 years, another conventional way of thinking has been changed. Earlier, events related to diplomacy were confined to the corridors of Delhi. My government has ensured direct participation of the public in this also. We saw a great example of this during India's G-20 presidency. The way India connected the G-20 with the public was unprecedented. The world was introduced to the real potential of India through programmes held across the country. Jammu and Kashmir and North East witnessed such big international events for the first time. The whole world appreciated the historic G-20 Summit held in India. The unanimous adoption of the Delhi Declaration even in a fractured environment is historic. India's vision from 'women led development' to environmental issues has become the basis of the declaration. Our efforts to secure permanent membership of the African Union in the G-20 have also been appreciated. During this conference, the development of India - Middle East - Europe Corridor was announced. This corridor will further strengthen India's maritime capability. The launch of the Global Biofuel Alliance is also a big event. Such steps are expanding India's role in solving global problems.
36.
Even in this era of global disputes and conflicts, my government has firmly placed India's interests before the world. The scope of India's foreign policy today has gone far beyond the constraints of the past. Today India is a respected member of many global organizations. Today India is a leading voice in the world against terrorism.
Today India responds strongly and takes initiatives for the humanity caught in crises. Wherever there is a crisis in the world today, India tries to respond promptly. My government has instilled new confidence in Indians working across the world. Wherever crisis occurred, we have evacuated every Indian safely through campaigns like Operation Ganga, Operation Kaveri, Vande Bharat. My government has made continuous efforts to propagate the Indian traditions of Yoga, Pranayam and Ayurveda to the entire world. Last year, representatives of 135 countries did yoga together at the United Nations Headquarters. This is a record in itself. My government has set-up a new Ministry for development of Ayush. The World Health Organization's first Global Centre for Traditional Medicine is being established in India.
37.
There come junctures in the history of civilizations, which shape the future for the coming centuries. There have been many such defining moments in the history of India also.
This year, on January 22, the country witnessed a similar epochal moment. After waiting for centuries, Ram Lalla has now been enshrined in his grand temple in Ayodhya. This was a matter of aspirations and faith for crores of our countrymen and the resolution of this has been accomplished in a harmonious manner.
38.
You all represent the aspirations of crores of Indians. The dreams of the youth in schools and colleges today are completely different. It is the responsibility of all of us to leave no stone unturned to fulfill the dreams of the Amrit generation. Viksit Bharat will fulfill the dreams of our Amrit generation. For this, we all have to work together to achieve success in this endeavour.
39.
Respected Atal ji had said—
अपनी �येय-या�ा म�,
## हम कभी �के नह�ं ह�। �कसी चुनौती के स�मुख कभी झुके नह�ं ह�।
My government is moving ahead with the guarantee of fulfilling the dreams of 140 crore countrymen. I have full faith that this new Parliament House will continue to give strength to India's aspirational journey and create new and healthy traditions. Many friends will not be in this House to witness the year 2047. But our legacy should be such that the future generations remember us. Best wishes to all of you!
Thank you!
Jai Hind!
Jai Bharat! |
65c43c1957bc567107068246 | reports |
## The Parliamentary Debates Official Report
IN THE HUNDRED AND FORTY-FIRST SESSION OF THE RAJYA SABHA Commencing on the
23rd February, 1987/4th *Phalguna* 1908 *(Saka)*
## Rajya Sabha
Monday the 23rd February, 1987/4th Phalguna,
1908 (Saka)
The House met at fifteen minutes past one of the clock, The Deputy Chairman in the Chair.
## Member Sworn
Shri Samar Mukherjee (West Bengal)
PRESIDENT'S ADDRESS— Laid on the table SECRETARY-GENERAL: Madam, I beg to lay on the Table a copy of the President's Address to both the Houses of Parliament assembled together on the 23rd February 1987. [Placed in Library. See No. LT- 3657/87]
[Text of the President's *Address* in, *Hindi]*
7
[RAJYA SABHA]
Address
8
11
Presidents
[RAJYA SABHA]
Address
12
[Text of the President's Address in English]
Honourable Memboxs, It gives me great pleasure to welcome you to this first session of Parliament in 1987. I extend to you my best wishes for the successful completion of the budgetary and legislative business ahead.
2. In. 1986 many of the gains made-from the thorough and comprehensive policy changes initiated in several key areas were consolidated. At the same time it was a year in which the country was called upon to grapple with challenges, external as well as internal, to its unity and integrity. Our secular, democratic structure is boldly facing the forces of commu-nalism and separatism. Nothing will ever shake the people of India from their adherence to the basic princi. ples of democracy, secularism and socialism which form our Republic.
3. In Punjab the forces of democracy, unity, progress and secularism continue; to be engaged in the struggle to isolate and wipe out the anti-national elements which are guided communalism loomed large before them. As we went ahead on our path of planned development, we began to assume that social and economic progress would automatically weaken the communal outlook. Experience has, however, shown that the com munal and fundamentalist forces, aided and abetted by external ele ments, are challenging our basic values of nationalism, secularism, democracy and socialism. Indiraji's martyrdom was to defend the same sacred cause of the unity and inte grity of India against the evil designs of communalists and reactionaries.
These nefarious forces constitute a deeper malady which has persisted in spite of demonstrable progress in socio-economic sphere. The situation clearly calls for a reappraisal and. Government propose a national dia logue for this purpose. Our precious heritage of unity in diversity can be preserved only by fighting all divisive forces.
and controlled by foreign sources. Under the leadership of the Chief Minister, Shri S. S. Barnala, the State Government and the people of Punjab, have shown exemplary courage in upholding the values of secular democracy. The people of Punjab have always been in the forefront to defend the unity and integrity of India. They played a historic role in the freedom struggle which has left the imperishable imprint of secularism and democracy on their mind and spirit. It is, therefore, not surprising that they have stoOd up to the blatantly unconstitutional effort to subvert the democratic process through a sinister exploitation of religious sentiments. In flagrant violation of the sacred tenets and traditions of the great religion founded by Guru Nanak, a small section has turned riligious functionaries and holy shrines into instruments of terror and subversion. Today this is the central issue in Punjab. Government will not allow the enemies of India's unity and integrity to abuse and misuse religion for their nefarious ends of creating communal disharmony and of unleashing violence and hatred in Punjab. All patriotic, secular, democratic and
5. There can be no better way of celebrating the 40th anniversary of freedom and the birth centenary of the architect of modern India, Jawaharlal Nehru, than progressive forces have to unite to build the strength of the people to overcome the reactionary, fascist and anti-national elements who are misguiding and confusing the masses in the name of religion. The challenge faces us all. No one can remain on the sidelines.
concerted and resolute action to remove the cancerous cells of communalism from our body politic. The National Committee for these celebrations, headed by the Vice- President of India, will devise a
4. As the nation approaches the 40th comprehensive programme to inculcate secular values tnd scientific temper.
6. While the Government were engaged in anniversary of our freedom, it is fully conscious of the dangers posed by religious obscurantism and com-munalism. It was in April, 1948 that the Constituent Assembly CLegisla-tive) passed a resolution calling upon Government to take steps to eliminate communalism from India's political life. The father of the Nation had been assassinated barely two months earlier. Memories of tha ghastly killings were still fresh in the minds of our Constitution makers. The threat to the unity of India from controlling extremist activities in Punjab, a new danger appeared on our borders. In January, 1987. Pakistan deployed strike formations in a menacing posture threatening Punjab and Jammu & Kashmir. As Members are aware, our borders are largely manned by para-military forces. Faced with this situation, the Government had to deploy our armed forces for safeguarding the borders. Serious tension was gene-
rated by the forward movement of
10. In my Addivss on February 20,
1986 I had outlned the priority areas for
1986-87
and beyond.
The main policy thrusts were: -
(i) Formulation of the revised 20-point programme;
(ii) Formulation of the new education policy;
(iii) Formulation of technology missions to improve the condition of the rural and urban poor;
(iv) A new orientation to our agricultural policy and taking the green revolution to the eastern region;
Pakistani forces. The Prime Minister took the initiative for immediate talks between the two Governments. An agreement on measures to de-escalate the situation was reached -during negotiations between the two Government held in Delhi recently and Pakistan agreed to withdraw their Army Reserve North from the Ravi-Chenab corridor. Further talks will be held in Islamabad. India's policy is based on peace and cooperation with all nations. Government have taken various measures to strengthen cooperation with our neighbours. While determined to preserve our sovereignty and integrity, India is prepared to remove all causes of tension and distruct between the two countries in the spirit of bilateral cooperation embodied in the Shimla Agreement.
(v) A more effective strategy for family planning;
7. The Mizoram Accord, signed in 1986,
(vi) Intensification of industrial growth;
(vii) Promotion of exports and tourism;
(viii) Reforms in the administrative brought to an end decades of insurgency and strife in that beautiful part of our country. Pursuant to this Accord, Statehood has been conferred on Mizoram and elections have been held. A new Government has taken office.
system; and
(ix) Changes in electoral laws.
8. The aspirations of the people of
11. My Government have taken action in Arunachal Pradesh for a full-fledged State have been fulfilled by the enactment of parliamentary legislation to confer the all these areas and positive results are beginning to flow.
12. The 20-point programme of 1986 has Statehood on Arunachal Pradesh. The new State came into existence on February 20, 1987. A new chapter in the history of the people of Arunachal Pradesh has begun.
sharpened the focus on measures to eradicate poverty.
The main fea-tures of the restructured programme are-—
9. Government are committed to
(i)
Poverty alleviation programmes which aim at expansion of rural safeguarding the rights arid interests of minorities. The solemn assurances contained in our Constitution re-gardig religious, employment and
-improvement of productivity and production;
(ii) Programmes for ensuring justice to scheduled castes and scheduled tribes;
(iii) Reduction of income inequalities cultural and linguistic matters have been and are being implemented in letter and spirit. Gov. eminent have continued to carefully monitor the implementation of the 15-point programme formulated by Shrimati Indira Gandhi to ameliorate the condition of minorities.
and removal of social and. economic disparities;
(iv) strengthening of the movement to ensure equal status for women;
(v) Creation of new opportunities for
youth;
(vi) Provision of safe drinking water
for all villages;
Government are considering issues relating to an effective management and monitoring system for the missions. The key idea here is to involve the people in activities relating to the missions so that they realise the potential for individual and social development.
(vii) Protection of environment;
(viii) Supply of energy for the
15. The reorientation of agricultural policy
villages; and
(ix) Evolving a more responsive
administration.
13. The new education policy has been has proceeded satisfactorily. Growth of productivity in the eastern region has vindicated Government strategy. To increase and stabilise production and productivity in the major part of our land resources, a national programme of rainfed agriculture through watershed development has been launched during the current year in 16 major rainfed/dry-land farming States. A National Pulses Development Project, with an outlay of Rs. 50 crores, has been started in 1986-87 to increase production of this essential protein crop.
formulated. It is an effective instrument in our fight against poverty. Its major aim is to reach out to the poor and the deprived and to place in their hands the means to gain control over their own destiny. Programmes such as the Operation Blackboard, non-formal education, adult education, vocational education and Navodaya Vidyalays will bring about
16. We have formulated a new family planning strategy with major emphasis on voluntary acceptance of the two child norm. The programme will be integrated with health care, nutrition and education programmes. Government have decided that the leading role in promotion of the family welfare programme should be played by voluntary agencies.
17. In the sphere of industry, the dynamic qualitative changes in education. They will directly help socially and economically backward sections of the community. The new policy will also strengthen national Integra tion. We have emphasized the importance of spreading an awareness and involvement of all our people in the heritage of India. The newly established zonal cultural centres have begun undertaking this task with enthusiasm and have organised innovative Festivals of our culture in Punjab, Rajasthan, Uttar Pradesh, West Bengal, Meghalaya, Gujarat, Maharashtra, Goa, Karnataka, Andhra thrust for efficiency and modernisation has begun to show results. Industrial production has picked up significantly.
18. Intensive efforts have been made on the Pradesh, Kerala, Tamil Nadu, Aruna-chal Pradesh and Mizoram and *Apna Utsav* in the capital.
14. Five technology missions have been set basis of a coordinated approach to promote exports of both primary commodities and manufactured products.
In our strategy up in the following areas:—
(i) Drinking water for all villages;
(ii) Eradication of illiteracy;
(iii) Universal immunisation of
children;
(iv) Production of oilseeds and
manufacturing has bsen assigned the role of growth sector. A concessional rate of duty has been allowed on imports of mod. ern capital goods for export production. Contemporary technology is being permitted for the thrust sectors. Significant fiscal and financial measures such as the new cash compensatory scheme, the duty drawback:
manufacture of edible oils;
(v) Improved communications.
—The Suppression of Immoral Traffic in system, availability of MODVAT in repect of 38 specified chapters, deduction in respect of profits for exports, sharp reduction in the rates of interest on pre-shipment and post-shipment credit for exports and the new computer software policy are intended to boost exports.
Women and Girls Act, 1956 was amended to protect all persons sexually exploited for commercial purposes. Stricter punishment has been prescribed for living on the earn, ings of prostitution of children and minors.
—The Dowry Prohibition Act was
19. The process of reform in our administrative system has gathered momentum. There has been a positive response of the civil servants to the new imperatives of accountability, social amended, shifting the burden of providing that there was no demand for dowry on the person who takes or abets the taking of dowry. Offien-ces under the Act have been made non-bailable.
responsibility and a new work ethic.
—Indecent Representation of Women Government are determined to carry forward the task of bringing about qualitative impiovements in Government management with the cooperation of all sections of the work force.
(Prohibition) Act has been passed under which depiction of figure of a woman, her form or body, which has the effect of being indecent, derogatory or which denigrates woman has been made punishable.
20. The basic structure of our electoral A significant feature of these laws is that system has stood the test of time. It has ensured free and fair elections to Parliament and State, Legislatures and has been legal remedy can be invoked by citizens. In implementing these farreaching laws, the cooperation of public spirited and socially conscious citizens is of vital importance.
22. Let me, now turn to the major trends in the economy.
23. Notwithstanding an indifferent monsoon the growth in gross national product in 1986- 87 will be around 5 per cent. Thus the targeted growth rate of the Seventh Plan will be achieved for the second year in succession.
recognised and acclaimed as such by the whole world. Based on the report of the Chief Election Commissioner of 1986, Government have formulated certain suggestions, which are to be discussed with the various political parties and also thrown open to public debate. Necessary legislation will be initiated, as in the past, on the basis of consensus evolving from such discussions.
24. The foodgrain output will be
21. 1986 will be remembered for significant somewhat higher than last year inspite of inadequate rains for the third year in succession.
Government are concerned over the fact that even
though agricultural production has legislation affecting important areas of national life. Stringent and comprehensive environment protection legislation has been enacted. It was brought into force on November 19, 1986 as a fitting tribute to the memory of Shrimati Indira Gandhi who did more than anyone else to raise, environmental consciousness.
—The rights of the consumers are now part of the statute book.
reached higher levels, it is showing Signs of levelling off. It is partly the result of three consecutive years of poor precipitation. The basic stra.
tegy for increasing agricultural production is sound. Vigorous implementation of projects and programmes for increasing irrigation potential
—Radical laws have been passed to improve the status of women.
and nopularising the use of high,
yielding varieties of seeds is expected to achieve the targeted growth rates of the Seventh Plan.
Government have taken major policy initiatives to increase the domestic production of oilseeds.
This has enabled Government to make additional allocations of rice and wheat to States for public distribution, to provide rice and wheat at concessional rates to integrated tribal development projects and nutrition programmes and to make higher allocations for the National Rural Employment
25. The industrial infrastructure has Programme and the Rural Labour Employment Guarantee Programme.
Comfortable stocks of foodgrains also enabled Government to give adequate quantities to drought-stricken States for the food-for-work programme.
performed remarkably well both in 1985-86 and 1986-87. The average annual growth rates for the last two years are likely to be 9.5 per cent in power, 6 per cent in coal, 7.7 per cent in saleable steel, 6.8 per cent in hot metal, 8 per cent in railway freight and 16.5 per cent in fertilizers. The significant aspect of the infrastructu.
ral scene is that annual
28. There has been a major reorientation performance has continuously improved, extending over- every quarter. In many cases, the lowest production in a quarter has beeen higher than the higest production recorded in any quarter of the preceding year. The infrastructure has begun to use investments in an efficient maned.
26. The revised index of industrial of policy to stimulate sugarcane and sugar production. The new two-year sugar policy aims at providing sugarcane farmers with more remunerative prices. It has also created a stable environment by announcement of the statutory minimum price a year in advance. As a result of this policy, sugar production increased by almost one million tonnes in 1985- 86, and is expected to increase further in 1986- 87. This has enabled Government to reduce sugar imports.
29. The technology mission for boosting production (base 1980-81-100), with a wider and more representative coverage than the old index provides evidence of satisfactory industrial growth. In 1985-86 industrial production grew at the rate of 8.7 per cent. In 1986-87 growth rate is expected to be 7-8 per cent. There has been impressive growth in electronics during be nrevious two years at the rate of around 40 per cent per annum. The public sector has continued to play the key role in our economic development. At the end of 1985.86, the total investment in Oentrol public enterprises stood at Rs. 50,341 crores, registering an increase of Rs. 14,947 crores compared with 1984-85. The financial performance of Central public enterprises has shown an encouraging trend. Measures have bee taken to strengthen the autonomy of public enterprises and to make them accountable for results.
oilseeds production has started functioning. A programme with an outlay of Rs. 170 crores during 1986— 90 has been launched to increase production of oilseeds to 18 million tonnes in 1989-90. In Kharif 1986, productivity of oilseeds is estimated to have gone up by 10 per cent and production by 7 per cent over Kharif 1985, despite adverse weather conditions which reduced acreage by 3 per cent. Edible oil imports were reduced to provide an incentive to domestic production. In 1985-86 imports were reduced by 55 per cent in value terms and over 15 per cent in quantity terms. Fiscal incentives have been provided to ensure processing of greater quantities of minor oilseeds and rice bran into edible oils.
27. Public stocks of foodgrains have
30. In
1986-87, anti-poverty pro continued at high levels and stood at 23 million tonnes in December, 1986.
grammes received stronger emphasis.
The Integrated Rural Development Programmme (IRDP) and the Employment Programmes are the kingpin of the antipoverty strategy. In 1986-87 an outlay of Rs.
543.83 crores was provided for the Integrated Rural Development Programme. This may be compared with Rs. 207.7 crores provided in 1984-85 and Rs. 205.9 crores in 1985-86. Upto the end of December 1986, 2.07 million families have been assisted. New features have been introduced in the implementation of the programme. They are higher level of investment per family, provision for forward and backward linkages, emphasis on training of beneficiaries, involvement of vol-ntary organisations, introduction of concurrent evaluation and increasing the assistance to women. Under all these programmes the basic thrust is to provide maximum assistance to the poorest of the poor and to scheduled castes and scheduled tribes.
31. The National Rural Employ.
ment Programme and the Rural Land less Employment Guarantee Program me were strengthened in
1986-87.
Employment aggregating to
550
mil lion mandays is expected to be creat ed.
There has been a noteworthy step up in outlays on NREP.
In
1986-87 a total outlay of Rs. 479.75 crores was provided by the Centre compared with Rs.
230
crores for
1984-85
and Rs.
337.21
crores for
1985-86.
Under RLEGP, which is wholly funded by the Centre, an out lay of Rs. 731.10 crores was provided for 1986-87 which may be compared with Rs. 400 crores for 1984-85 and Rs. 606.33 crores for 1985-86.
32. The 20-point programme of 1986
emphasises the provision of safe drinking water for all villages.
In
1986-87, a total amount of Rs. 794.05 crores was allocated for the drinking waater programme in Central and State plans taken together.
40,000
villages are expected to be covered exceeding the target of
35.930
villa ges. Special attention is being paid to provision of water supply for scheduled castes and scheduled tribes.
33. In 1986-87, the outlay for the annual plan was stepped up substantially. For the first time in our planning history, 40 per cent of the Five Year Plan was finoneed in real terms in the first two years of the plan period. In allocation of resources high priority was accorded to anti-poverty programmes and to strengthening the core sectors of the economy. A massive increase of 65-per cent was made in the outlay for major anti-poverty programmes. The outlays for agriculture, rural development and irrigation v/ere stepped up by nearly 30 per cent. The plan provision for education was increased by 60 per cent. The Central plan for 1986-87 envisaged an outlay of Rs. 22,300 crores, representing an increase of 20.5 per cent over the last year's outlay. The actual outlay of the plan is likely to be higher at around Rs. 23,000 crores. Nothing could illustrate better the strong commitment of Government to he pivotal role of planning in Indias development.
34. Government have taken steps to implement the basic proposals outlined in the long term fiscal policy. The tax structure is being reformed and simplified, strong emphasis has been laid on mobilising resources for development by better administration and enforcement to improve compliance; a stable fiscal environment is being created to stimulate savings and investment, and a more open approach has been adopted in regard to fiscal policy.
## 35. Central Government Revenues Which
increased by 23 per cent in 1985-86 have shown a further increase of over 17 per cent in April—December, 1986. Personal incometax collection recorded an impressive growth of 30 per cent in 1985-86; they have grown by another 16 per cent in April-December, 1986. The continued buoyancy of Central revenues has vindicated Government's fundamental approach of reasonable tax rates combined with strict enforcement of tax laws.
36. A Cabinet Committee on Exports was to 1716 in 1985 and 1234 in 1986 (January to October). The loss of man-days due to industrial disputes fell from 56.03 million mandays in 1984 to 29.37 million mandays in
1985 and 19.41 million mandays during 1986 (January to October) . Government have taken a number of steps to ensure that unorganised workers receive entitled benefits.
Industrial workers have made a notable contribution to raising production and productivity in the last two years.
set up to expedite decision making on policies and programmes for promotion of exports. Exports grew by 17.3 per cent in April-November, 1986 over the corresponding period of last year. Imports increased by only 1.4 per cent over the same period. As a result the trade deficit has shown a substantial decline. We cannot, however, afford to be complacent. The challenge of self-reliance and of building a fully independent economy demands Government are committed to safeguarding their interest and to enlist their cooperation for accelerated industrial growth.
unremitting effort.
41. Government have continued to pursue
37. In the current year we crossed the one our non-aligned foreign policy objectives of peace, disarmament, development and cooperation with all nations for building an equitable world order.
million mark in foreign tourist arrivals. Foreign exchange earnings from tourism are estimated at Rs. 1600 crores as compared to Rs. 1300 crores during 1985-86.
42. The Six Nation Five Continent Domestic tourism is being given special importance to promote national integration. Central Government is providing assistance for wayside facilities, wildlife sanctuaries sound and light shows, and cheaper tourist accommodation.
38. While impressive results have been achieved in the matter of resource initiative in which Argentina, Greece, India, Mexico, Sweden and Tanzania are taking part, has produced a favourable impact on public opinion throughout the world for intensive and sustained effort to bring about nuclear disarmament. At Reykjavik radical proposals for ending the nuclear arms race were placed on the table. It is unfortunate that no agreement was reached. We have continued to urge both the USA and the USSR to persevere in their efforts to fulfil the aspirations of humankind for peace and for a world free from nuclear weapons.
mobilisation, a similar effort has to be directed to controlling expenditure. The imperatives of growth with social justice compel serious attention to the task of containing unproductive expenditure.
43. At the Non-aligned Summit at
39. The consumer price index gives cause Harare, India handed over the chair manship of the movement to Zimbab we.
The Summit acclaimed the role our country has played in strengthen ing non-alignment and in reaffirming for concern. However, inflation, as measured by the wholesale price index has been kept within reasonable limits. Government will continue to pursue policies to counteract inflationary trends in our economy.
the basic objectives of the Movement. The Summit entrusted to our Prime
40. During the last two years, a Miniser the chairmanship of the newly established AFRICA
Fund Committee to carry forward the struggle against positive trend of improvement was seen in industrial relations. Strikes . and lockouts declined from 2094 in 1984
apartheid and to support the efforts of the Frontline States. The AFRICA
Fund Summit held in Delia on January 24-25, 1987 has given concrete shape to the concept articulated at Harare.
Government are operations undertaken by the Sri Lanka security forces and the economic blockade of Jaffna area have.
created further complications. We are deeply affected by the hardship, suffering and loss of life of the Tamil civilian population of Sri Lanka. The ethnic issue in Sri Lanka can only be resolved through political dialogue.
47. My Government continues to strive convinced that comprehensive mandatory sanctions alone will compel the racist regime in South Africa to forestall blood-shed and listen to the voice of reasons. Governments that are in a position to influence South Africa, because of their commercial and economic relations, have to mount pressure through comprehensive mandatory sanctions.
44. India's policy of expanding co operation in our region has achieved significant results.
The successful SAARC
(South Asian Association for Regional Cooperation)
Summit held for a just and peaceful settlement of the border question with China. The question remains crucial to full normalisation of our relations. The unfortunate development on the border continues to cause concern. Our position on the border question is well known. We are in discussion with China on the issue.
in Bangalore in November, 1986 under India's chairmanship has demonstrat ed the benefits of regional coopera tion.
A
permanent Secretariat of
48. We uphold the unalienable rights of SAARC has since been established in Kabhrnandu.
New areas including control of drug trafficking, children's welfare, broadcasting, tourism and scholarships have been identified for the programme of SAARC
coopera tion.
Our Prime Minister took the opportunity of SAARC
meeting to hold useful bilateral discussions.
45. Despite the set-back caused by the the Palestinian people. We support the liberation struggle of the peoples of Southern Africa. We have repeatedly urged an early end to the fratricidal war between Iraq and Iran. We continue to support the efforts of the Contadora group to achieve a peaceful and lasting settlement of the crisis in Central America. We have also supported the UN Secretary General's initiative on Afghanistan. We welcome the flexible responses to the outstanding issues in regard to Afghanistan and trust that conditions will be created soon to ensure the status of Afghanistan as an independent, non-aligned country free from outside interference and intervention.
deployment by Pakistan of its troops on our borders, efforts are continuing to create a basis for cooperation with Pakistan. The main hurdles in the way of normalisation are Pakistan's clandestine effort to acquire nuclear weapons capability, its arms
49. During the last year, I paid goodwill visits to Nepal, Greece.
Poland and Yugoslavia.
The Vice-President visited programme with serious implications for our security environment and its support to antinational and secessionist elements in Punjab.
46. It is unfortunate that the promise held France and Botswana. The Prime Minister paid bilateral visits to the Maldives, Zambia, Zimbabwe, Angola, Tanzania, Mauritius, Mexico, Indonesia, Australia, New Zealand and Thailand. The Prime Minister also participated in the Commonwealth Heads ot Government Review Meeting in London, the Summit Meeting of the Six Nation Five Continent Peace Initiative at Ixtapa and out by our bilateral discussions with Sri Lanka at Bangaiore and of subsequent high level consultations in December, 1986 has received a set-back. The negotiating process has been hindered by the hesitations of the Government of Sri Lanka in regard to their own formula of December 19, 1986. The massive military the Eighth Non-aligned Summit in Harare, besides visiting Sweden to attend the funeral of late Prime Minister olof Palme.
50. We had the privilege to host the Prime tions of the community. The primary focus of policies and programmes initiated during the last two years has been to assist the landless agricultural labour, the small and marginal farmers, artisans and craftsmen, handloom weavers, women, children; the urban poor, scheduled castes and scheduled tribes and other backward classes. Our strategy of development will continue to strongly emphasize social justice as its foremost objective.
54. Inspite of the many difficult problems we are facing, the peopie have high confidence in their capacity to build a strong and prosperous India. This confidence comes from our impressive achievements. India stands as a symbol of stability and progress. Our commitment to basic values and our determination to preserve our cultural Minister of Greece, the Prime Minilter of the Republic of Korea, the Prime Minister of Turkey, the President of Seychelles, the Chancellor of the Federal Republic of Germany, the President of the African National Congress, the President of SWAPO, the President of Bangladesh, the Prime Minister of Yugoslavia, the President of Nicaragua, the Prime Minister of Zambia, the King of Jordan, the Prime Minister of Denmark, the President of Peru, the Prime Minister of Malaysia and the President of Finland. The then Prime Minister and the current President of People's Democratic Republic of Yemen and the Prime Minister of Italy made transit visits to India. President Zia-ui-Haq of Pakistan paid an unofficial visit.
51. These bilateral visits have strheritage have enabled us to march forward with cur head held high. We still have much to do. With the cooperation and unbounded enthusiasm of our people, my Government will take the country forward on its chosen path.
engthened our friendly relations with these countries. A large number of agreements have been signed to further bilateral cooperation in economic commercial, scientilic and cultural fields.
55. Our tasks are anchored to basic
52. In the context of the close and friendly relations that have characterised the four decade history of Indo-Soviet cooperation, the visit of Mr. Gorbachev, the General Secretary of CPSU, was a landmark. The Delhi Declaration signed by Mr. Coibachev and our Prime Minister has provided a qualitatively new framework for international relations based on nonviolence, justice and equality. It will have worldwide significance in establishing new attitudes and values relevant to the crucial problems of humanity.
national priorities. National cohesion will be strengthened. Communalism will be fought tooth and nail. The anti-poverty programme will be implemented with vigour. The core sectors of our economy will be strengthened and expanded to ensure self-reliant growth. The energy and vitality of our youth will be harnessed to nation building. The spirit of sacrifice which permeated the struggle for freedom must be recaptured to face the challenges that confront us. A passion for nation building must fill our hearts. For the accomplishment of these momentous tasks, I give you my good wishes.
53. The thrust of Government policy is to improve the welfare of economically and socially weaker sec-
Jai Hind. |
65c43c1957bc56710706825c | reports | # The Parliamentary Debates Official Report In The Third Session Of The Council Of States
commencing on the 11th February 1953
## Council Of States
Wednesday, 11th *February* 1953
The Council met at, four of the clock in the afternoon, MR. CHAIRMAN in the Chair.
## President'S Address
SECRETARY: Sir, I beg to lay on the Table a copy of the President's Address to both Houses of Parliament assembled together today.
THE
PRESIDENT
(DR.
RAJENDHA
PRASAD) :
their labours, towards the goal that we have set before us. These nine months have seen advances on many fronts, industrial and agricultural, and the finalisation of the Five Year Plan, which has mapped out the lines of our progress in the coming years. It is for us now to march along that path and to implement and fulfil the promise held out fo our people. That is no easy task, for a multitude of old and new problems always tend to overwhelm us and our wishes often run faster than our capacity and resources.
2. At this moment, when we require all the wisdom and experience of our leaders, it is a misfortune that we have lost one of the most eminent and devoted of our elder statesmen.
I
learnt with deep sorrow of the death yesterday, in the early morning, of Shri N.
Gopalaswami Ayyangar, who had filled, in the course of a full life, many high offices with rare distinction. To the end of his days, regardless of his health and the leisure he had so richly earned, he devoted his life to the service of his country and people. His colleagues in the Government and I relied on his ripe wisdom whenever any difficult problem confronted us.
His death is a great loss to the coun try and to all of us.
3. While we labour in our own coun try to build up a new and prosperous India, bringing relief to the millions who have suffered so much in the past - from the curse of poverty, the problems of the rest of the world thrust them selves upon us and we cannot avoid them or isolate ourselves from them.
My Government has no desire to inter fere with other countries, but it has to face the responsibility which has
inevitably come with independence to India.
We have endeavoured, as is well known, to pursue a policy of THE
PRESIDENT
(DR.
RAJENBRA
peace and of friendship with all the countries of the world. Gradually, that policy has been understood and appre ciated, even by those who may not always agree with it, and it is recog nised that India stands for peace among the nations and will avoid taking any step which might encour age the tendency to war. In pursuit PRASAD): Members of Parliament, nine months ago, I welcomed you as members of the first Parliament of the Republic of India, elected under our Constitution. Since then, you have had to shoulder heavy burdens and to face difficult problems, both domestic and international. As we meet here today, we bring with us faith in our country's destiny and the assurance that our people are advancing, through made by the United Nations to deal with this problem have been ignored by the Government of the Union of South Africa. A movement against racial discrimination, which was remarkable for its peaceful and disciplined character, is sought to be crushed by legislation and governmental action, which are unique in their denial of democratic processes and the purpose which was proclaimed in the Charter of the United Nations. In East Africa there is racial conflict which, if not ended to the satisfaction of the people, is likely to extend and engulf vast areas of Africa. There are many people still who do not realise that racial domination and discrimination cannot be tolerated in the world today and any attempt to perpetuate them can only lead to disaster.
## G. Our Relations With Our Neighbour
of this policy, my Government put forward certain proposals which they hoped might lead to a settlement of the Korean war. Those proposals met with a very large measure of support, but unfortunately some of the great countries most intimately concerned were unable to accept them. This war continues not only to the utter misery and ruin of the people of Korea, but also as a focus of danger for the rest of the world. Certain statements recently made, and the consequences that might flow from them in extending the war in Korea, have caused considerable apprehension in the minds of people all over the world. My Government has viewed these developments with grave concern. I trust that any tendency towards an extension of the war which has already brought disaster in its train, \sjill be checked and the minds of nations and peoples will be turned towards a peaceful approach to these problems.
My Government will continue to work to this end and will pursue a policy of friendship with all countries without any alignment with one group of nations against another. The democratic processes to which we are so firmly committed in our own country involve methods of peaceful approach to problems. If democracy is to survive, the same climate of peace and spirit of reconciliation has to be extended to the
international sphere.
countries in Western and South-Eastern Asia continue to be close and friendly and there is an increasing measure of co-operation between us Even in regard to Pakistan, with which unfortunately our relations have been strained, there has been a certain improvement. That improvement is not very great, but it is an indication which I welcome. Recent conferences between representatives of the two countries have been held in a friendly atmosphere and will, I hope, yield results.
The upheaval caused by the
4. The General Assembly of the United Nations will meet again in the near future and will consider these grave problems, on which hangs the momentous issue of peace or war in the world. I earnestly hope that the great nations whose representatives will assemble there will address themselves to the introduction of the passport system between the two countries has subsided and many of the difficulties that were created bv this system are being gradually removed. I trust that this effort will be continued and directed towards the removal of the basic problems that still confront the minorities in East Bengal.
7. The canal waters issue is being promotion of a spirit of reconciliation- and the fulfilment of the objectives embodied in the Charter of the United Nations.
5. In the continent of Africa, which continues to be the greatest sphere of colonialism today, events have taken a turn for the worse. In South Africa, the doctrine of racial domination is openly proclaimed and enforced by all the power of the State. The efforts considered at a technical level jointly by representatives of the two countries, assisted by the International Bank. This issue is eminently one which ought to be considered objectively and dispassionately so that the maximum advantage can be derived by both countries from the waters that flow through them. A great proportion of these waters run waste to the sea. If they can be properly harnessed,
62 C of S.
10. The question of linguistic provinces
[The President.] they will bring relief and prosperity to vast numbers of human beings in both India and Pakistan. It is unfortunate that an issue like this should be treated in a spirit and atmosphere of rivalry and hostility. I trust that the new approach will yield fruitful and happy results to both countries. This approach can also be applied to the settlement of the evacuee property problem which affects the fortunes of millions of people both in India and Pakistan.
8. Another vital issue between India and Pakistan has ba*n the Jammu and Kashmir State.
This matter is again being discussed by our representatives with the Representative of the United Nations.
That issue, like others, has to be considered dispassionately, keep ing always the welfare of the people of that State in view. It is not by war or threats of war that this, or any other outstanding problem between India and Pakistan, can be solved.
has often agitated the people in various parts of the country. While language and culture are important considerations in the formation of States, it has to be remembered that the States are administrative units in the Union of India and that other considerations also have to be kept in mind. Above all, the unity of India and national security have always to be given the first priority. Financial and administrative aspects, as well as economic progress, are also important. Keeping all these factors in view, there is no reason why the question of the reorganisation of States should not be considered fully and dispassionately so as to meet the wishes of the people and help in their economic and cultural progress. I am glad that my Government has taken steps in the matter of the formation of a separate Andhra State :ind I hope that there will be no great delay in establishing this new State. Any such change as the establishment of a new State demands the fullest co-operation of all those concerned with it and I trust that this will be forthcoming.
My Government has declared repeated ly that it will not go to war unless it is attacked, and has invited a like
## 11. The Planning Commission Has
declaration by Pakistan. If fear of war was eliminated, it would be much easier to consider all the issues that confront us today.
9. Internally, in the Jammu and Kashmir State, progress has been made in many ways.
Our Constitu tion contains specific provisions about the relationship of India with the State, and by an agreement between the Gov ernment of India and the Jammu and Kashmir Government, the bonds that tie that State to India have been strengthened and made closer. A part of this agreement has been implement ed and the remaining part should also come into operation soon.
Un completed the first part of its labours by finalising its report on the Five Year Plan. The other and the more difficult part, of implimenting this plan, now faces the country and to that we must address ourselves. I am glad to find that this Plan and the fifty-five Community Projects that have been started in the country are evoking a considerable degree of enthusiasm among our people. In the course of a few months, hundreds of miles of roads have been built, tanks dug, school houses constructed and many other minor projects undertaken, almost entirely by the voluntary labour of our people. That is a sign of hope and promise, for it lies with our people ultimately what they make of their future.
fortunately a misconceived agitation was started in Jammu which, though
12. The general economic situation in the aiming at a closer union with India, )B likely to have exactly the opposite effect.
I
trust that this misguided country shows distinct signs of improvement, although there are still unfortunately areas where, owing to lack of rain, near-famine conditions agitation will cease and the people of Jammu and Kashmir will co-operate for the progress and advancement of the State in the larger Union of India. Where there are legitimate grievances, they will undoubtedly be enquired into end every effort made to remove them.
prevail. The State Governments are doing their utmost to give relief by utility works or otherwise .in these areas. The problem, however, has to be tackled in a more basic way so as to avoid recurrence of famine conditions and a complete dependence upon the vagaries of the monsoon.
duction exceeded internal requirements. This made it possible to relax control over the prices, movement and distribution of sugar, as well as on gur and khandsari. With the easing of. the supply position of groundnut oil, controls of prices on hydrogenated oils have also been lifted, except those intended to ensure quality.
13. The Finance Commission, constituted
16. Very considerable progress has been towards the end of 1951 under the provisions of Article 280 of the Constitution, have submitted their report. The Commission's recommendations have been accepted by my Government and necessary action will be taken for implementing them.
The made in cotton and jute production. In 1948- 49 cotton production amounted to 17;7 lakh bales and jute 20;7 lakh bales. In 1951-52 cotton had increased to 31 - 3 lakh bales and jute to 46 ;8 lakh bales.
17. In order to add to the country's food recommendations of the Commission will be laid on the Table of £oth Houses of Parliament in the current session.
14. There has been a steady improvement production, special attention is being paid to the construction of more than 2,000 tubewells and for an accelerated programme of minor irrigation works. Crop competitions are becoming increasingly popular all over the country and have yielded very remarkable results. Large-scale experiments are being made to introduce what is called the Japanese method of rice cultivation which promises substantial results in increase of yield. A large mechanised farm has been set up in Jammu Province. Vigorous attempts are being made for the extensive; application of fertilizers and other manure and fdr the use of improved seeds. The community centres are specially aiming at increasing the yield of foodgrains by various methods, including a rural extension service.
18. For the improvement of cattle 92 key in the food situation and the closing stock for 1952 was 19 lakh tons, which is the highest on record so far. One of the factors in building up this stock was the wheat loan from the U.S.A. The prospects of foodgrains for 1952-53 are better than in the two preceding years. Owing mainly to the drought in parts of Bombay, Madras and Mysore, caused by an inadequate monsoon, foodgrains will have to be imported, but their quantity will be less than in the last two years. It is of the highest importance that we should gain self-sufficiency in food and I hope that this might be possible within the three remaining years of the Five Year Plan. For the first time we start this year with a considerable stock of food-grains. We should endeavour to build this up so that we can meet any contingency. Prices of ifoodgrains have shown a farm centres were started in 1951-52. In addition it is proposed to provide one key village unit in each Community Project area. Sheep breeding schemes have been downward trend in recent months. Controls have been relaxed in many parts of India and there is greater freedom of movement. The Government, however, intend to retain control at strategic points so that no untoward results may affect prices or procurement.
15. The production of sugar during 1951-
reorganised to provide for the production of fine wool. A Board for the preservation of wild life has been set up. At Jodhpur a Desert Atforestation Research Station is being established. This will undertake work for the reclamation of arid areas.
52 reached the record figure of 15 lakh tons and for the first time pro-
19. The Sindri Fertilizer Factory produced
180,000 tons of ammonium sulphate during 1952. This is expected
[The President.] to be increased to three
24. The great multi-purpose river valley lakh tons in 1953. The pool price has been reduced from R> 365 per ton to Rs. 335.
20. The production of cotton textiles, which projects have made good progress and in some of them the operational phase will begin soon. Work on other projects has made steady progress.
25. Steps are being taken to improve the efficiency of the Hindustan Shipyard at Visakhapatnam and for the
- expansion of the Iron and Steel Industry.
Production of coal, steel, cement, salt and fertilizers has reached higher levels than in the previous year.
26. Scientific research has made further progress by the establishment of new National Laboratories and Research Institutes.
A
Central Electro-Chemical amounted to 4,600 million yards during 1952, was highly satisfactory and the prospects for the next year are good. The lower prices of mill-made cloth, though welcome, led to a fall in the offtake of handloom cloth and the handloom industry, which provides livelihood to millions of people in the country, was faced with serious difficulties. My Government attaches great importance to this and other cottage industries both because vast numbers of people are employed in them and because they are the most effective method of removing unemployment. An All-India Khadi and Village Industries Board has been established and legislation undertaken to raise funds for technical development and research for village and cottage industries. In order to help the handloom industry, the production of dhoties by Tiill industry was curtailed to sixty yer cent, of the 1951-52 production.
21. The tea industry was badly affected by the fall in international prices.
The Research Institute was opentd at Karaikudi and the Central Leather Research Institute at Madras. The Building Research Institute at Roorkee will be opened soon. A factory for processing monazite sands has been set up at Alwaye in Travancore-Cochin and a Machine Tool Prototype factory was recently opened at Amber-nath in Bombay State. The Hindustan Aircraft Factory at Bangalore has produced, from its own designs, a number of trainer aircraft which are being used now. A defence factory near Jubbulpore is nearing completion
27. My Government has decided to take Government have taken measures to assist tea gardens to secure better credit facilities and propose to set up an expert committee to enquire into all aspects of the tea industry, including marketing. The price of tea is now showing some signs of improvement.
22. The readjustment of world prices under State control the existing air companies and to operate the scheduled air services. It is proposed to establish two State Corporations for this purpose, one for internal services and the other for external services.
28. Indian Railways are celebrating their affected foreign trade and exports fell in value and to a lesser extent, in quantity. The balance of payments position, however, continued to be satisfactory, as imports also declined.
2a. My Government has been paying centenary next month. This great State undertaking belonging to the community is continuing its progress and extending its operations.
29. The progress of a people and of a special attention to the tribal areas in the North-East and other parts of India and help is being given for their development. A Commission to consider the problems of backward classes has been appointed. A Press Commission has also been appointed to consider problems of the newspaper press in India.
nation ultimately depends upon education.
My Government views with much concern the present state of education in the country which suffers in many ways, both in quality and quantity, and too much attention is paid to the granting of diplomas and degrees and not to the real improvement of the individual in cultural, scientific an technical
35. I earnestly trust, that wisdom and tolerance and the spirit of cooperative endeavour will guide you in your labours and will yield results for the good of the country and the people whom we are all privileged to serve.
matters and. above all, in the training for good citizenship. Basic education has been adopted as the model, but progress in this has thus far been unfortunately slow. Many schemes for the improvement of basic, secondary and social education, are under con-jation and a Commission on Secondary Education has been appointed.
## Eath Of Shri N. Gopalaswami Ayyangar
30. An over-all view of the situation in India indicates allround general progress at an increasing pace. This is a matter for satisfaction. But the goal we have set before us is still far and requires greater and continuous effort and an increasing pace of change. We aim at a Welfare State in which all the people of this country are partners, sharing alike the benefits and the obligations. So long as there is poverty and unemployment, a section of the community derives no benefit from this partnership. It is, therefore, necessary for us to aim at full and productive employment.
31. A statement of the estimated receipts and expenditure of the Government of India for the financial year 1953-54 will be laid before you. The Members of the House of the People will be required to consider and pass the demands for grants.
32. The House of the People will also be asked to vote supplementary grants to meet additional expenditure during the current financial year.
33. There are 24 Bills pending before you.
THE PRIME MINISTER AND MINISTER FOR EXTERNAL AFFAIRS (SHRI JAWAHARLAL NEHRU) : Mr. Chairman, before this House enters upon the labours of this session, may I refer to the passing away of a colleague of ours and the Leader of this House, Shri Gopalaswami Ayyangar? During the last session he was unable to attend to the business of this House because of his illness, and we all thougftt that it was, if I might call it so, a temporary illness which would pass, because we could not reconcile ourselves to the thought that he would not come back. We had come to rely upon him in so many matters that, as often happens, he became, in his own way, a kind of institution in Government to whom all turned for advice whenever any difficulty arose. And so we took this institution for granted. When un-towards events take place, they rather shake up the whole fabric of things. So it has been in this case, and though we grieve for him, in reality we grieve for ourselves, because he is not there for us to turn to. We may send our messages of sympathy to his family and others, and it is right that we should do so; but those who
require most sympathy are ourselves.
Mr.
Gopalaswami Ayyangar had a Some of them have passed the Committee stage. A few of them, which are still under consideration by the Committees, will be brought before you with their recommendations during the course of this session.
34. Among the other legislative measures that it is intended to bring before you, the following may be especially mentioned : The Representation of the People (Amendment) Bill, the Bill on National Housing, the Air Services Corporation Bill, the Minimum Wages (Amendment) Bill, and the Indian Tariff (Amendment) Bill.
background and a record which, I suppose, is unusual in this House or among members of Government. Starting in the junior scale of Government service, he rose step by step till he seemed to be peculiarly fitted for any difficult problem or post of responsibility that might arise. In the course of his long and varied career he was, as the House might know, Prime Minister of the State of Jammu and Kashmir for five or six years. Those years were difficult years. Those years were war |
65c43c1957bc567107068253 | reports | # The Parliamentary Debates Official Report
IN THE EIGHTY-SEVENTH SESSION OF THE RAJYA SABHA
Commencing on the 18 *th February,* 1974/*the 29th Magha,*
1895 *{Saka)*
## Rajya Sabha
Monday the ISth February,
1974[the 29th Magna IMS (Saka)
The House met at thirty five minutes past twelve of the clock MR. CHAIRMAN in the Chair.
year, as we have these last three years, tl has been a continuous testing of the nation's mettle. The nation has survived these difficulties and has not allowed them to come in the way of its basic endeavours towards development. This is no mean achievement and should not be ignored, even though positive aspects are not apt to be overlooked in difficult times.
## Presidents Address
SECRETARY-GENERAL:—Sir, I beg to There have been a number of welcome lay on the Table, a copy (in English and Hindi) of the President's Address to both the Houses of Parliament assembled together on the 18th February, 1974.
{Text of the President's Address in English)
Hon. Members, You reassemble at a time developments. One of these is the manner in which the people of Andhra Pradesh have solved the problem of intra-regional tensions which only a year ago appeared insurmountable. I congratulate all sections of the people of that State on the wisdom and spirit of accommodation which they displayed. The six-point formula which has been evolved should lead to fuller integration and to the accelerated development of the backward areas of the State.
of difficulty and trial. The people face many hardships as a result of high prices, scarcity of essential commodities and interruptions in production and supply caused by strikes, bundhs and unrest, which in some parts of the country have taken a violent turn. The international oil crisis has cast an uneasy shadow on the economy. These unforeseen events have undoubtedly slowed down the pace of our social and economic development. In this situation, the people's mood is one of understandable anxiety. I have deep sympathy with the people, particulary the poor sections, who have had to suffer.
Seldom has a country faced such gigantic Two other hopeful trends are in the economic sphere : the rise in export earnings and the improvement in the performance of public undertakings. Until about two years ago, the low rate of growth of our exports was a cause for considerable anxiety However, since 1972-73, there has been a marked improvement. In that year, our exports increased by 22%. In the first problems in quick succession, year after tight months of 1973-74, despite a variety •of constraints, exports have increased 20.8%. We are confident that with a greater national effort, exports can be pushed up substantially.
Only aboui two years'
ago, the continuing losses of our public enterprises were a cause for concern. It is. therefore, a matter of salisfacton that consequent to a number of measures taken by Government, our Centra]
public undertakings, taken together, have increased their production and earned a net profit for the first time in 1972-73-This year the position is expected to be much better. The utilisation of capacity will generally increase, the profits of some units are expected to be higher and in others the losses will be considerably reduced.
The rise in prices and the scarcity of food articles, particularly in deficit States, is of prime concern to the people and the Government. The expectation that the
good *kharif* harvest of 1973 would help to stabilise prices has not materialised.
Partly, this is due to the internal inflationary situation. The provision of work and relief on a hitherto unprecedented scale to I he people of drought affected
areas, without jettisoning investment on Plan programmes and the requirements of defence, has necessitated increased deficit financing. The situation also reflects the effect of the international economic crisis on our country. The steps toward detente between nations in different parts of the globe had raised hopes of a favourable climate fot the speedy progress of developing nations. However, the international economic situation has created new and commplex problems. The international monetary crisis, followed by the steep rise in the prices of many commodities has affected poorer countries like India more than olhers. The prices of almost all com-nodities that we have to import have gone up by two to four times in the past few months, while the prices of our own ex )orts have risen, if at all, only marginally.
The serious situation created by these developments has been aggravated by hoard ing and speculation by unscrupulous traders and by interruptions in production and movement caused by lapses on the part of management and by some misguided sections of organised classes. Stocks a.'e also being hoarded by producers and affluent consumers. All these sections of our >eople must realise that they canrtot survive unless the nation as a whole survives. Resort to voilenee and bwtdhs only worsens the situation. The poor suffer the most. Government will deal firmly with hoarding and with attempts to interrupt production, n jvement and distribution.
## Supplies To Deficit Areas And \ ..Nerable
! sections of society can be maintained through j the public distribution system on!; if there is adequate procurement of grains. Appreci ating the need to compensate the farmer for the rise in the cost of production. Govern ment increased procurement prices substanti ally for lite current *kharif* cereals. While the procurement of rice is satisfactory in many States, it is unfortunate that the pro curement of coarse grains did not gather momentum. The *kharif* procurement season has still several months to go. The situation has been studied in detail, State by State, and Government has indicated the steps to be taken by State Governments. This year's experience in procurement and distribution will be fully considered in taking corrective action for the coming *rabl* season. I wish to impress upon the State Governments, with all the earnestness at mj lod, the importance! of achieving procurement targets. It has to be realised Central Government can distribute only as much quantity as the State Governnents procure ind make available to it. Therefore, all State Governments, whether they be *ot* sur-
| and to maximise our earnings from exports.
deficit States (which also have
! Efficient and increased production of our I own sources of energy and of export-oriented!
surplus areas), should give over-riding importance to this matter and to the checking of hoard ing and smuggling.
Judged by world standards, we consume industries, utmost economy in the use of all products aid selective restraints on domestic consumption of exportable goods arc esseni ti'il for the success of this effort. I appeal to
1 all sections of the people to co-operate fully with the measures that will be taken by Government.
very little oil. Yet the increased prices of crude oil alone will cast on us an additional burden of rupees eight hundred crores a year in foreign exchange. This poses an unprecedented challenge to our economy.
We can understand the anxiety of oil prowill be pursued with vigour. The exploration which has begun in one off-shore area will be intensified. We have already r joint virtue for production of crude oil in Iran.. The Oil and Natural Gas Commission has started exploration in prospective area in Iraq and similar venturers clsewere are under consideration.
## I
ducing countries to conserve their depleting reserves of crude. We also appreciate their desire to strengthen and diversify their economies through investments financed by larger revenues from their exports of oil. We exiend our support fully to them in their efforts to secure a dominant role in the international trades in oil which has hitherto been controlled by a handful of private oil companies. We have cordial relations with oil-exporting countries. The adverse impact of the rise in oil prices on the economies of developing countries like India is recognised by the friendly countries in Western Asia. We have to devise ways and means of ensuring that this genuine concern is adequately reflected in concrete measures. We are in close touch with oil producing countries and hope that we can find just solutions through appropirate mutual arrangements.
We have satisfactory reserves ofcoal-and Schemes for the generation of power will be given high priority. Special attention is being paid to improving the working of existing units and ihe earlier commissioning of projects which are in an advance state of construction. This will add a sizable quantum of power. In addition, a large number of projects are to be taken up and completed during the Fifth Five Year Plan period. The necessary approvals for these projects have been given and in the case of thermal plants, the coal fields from which coal will be supplied have been indentifieo. and linked up for particular projects. A coordinated development of coal fields, transpottation and powe.' plants will be ensured. This massive programme calls for the reorganisation of the electricity industry.
a sizable potential of hydro-electric power. We possess the technology for nuclear power generation. We are hopeful that our efforts at oil exploration will yield results. Given a little time and the necessary resources, we should be able to develop these to meet our needs. But the intervening years will be difficult and will call for the most disciplined effort on our part and understanding from our friends.
Government is organising massive insulating our projected targets of economic growth from the rise id prices of oil lies in larger production and transport of coal. Department of Mines and the Railways have to gear themselves to the task of raising and moving the coal to various centres of consumption. The State Governments on effort to develop our indigenous sources of energy The search for oil, on-shore and off shore, The key to the success of our efl'oits in For the first time integrated sub-plans are their part shoul'i ensure ths t necessary basic facilities like power and feeder roads ;>.re mide available. A great responsibility rests on the managements and the one and a half million workers of the mines and the Railways. With their co-operation, the production of coal will be increased in 1974-75 to 90 million tonnes, if not more, and a steady flow will be maintained to keep the wheels of industry running smoothly.
In the present situation, the maintenance being prepared within the overall framework of State Plans for the development of backward areas, including hill and tribal areas, so that all sections of the people achieve certain minimum levels of sociftl consumption in elementary education, rural health, drinking water, provision of home sites, slum clearance, rural roads and rural electrification. The endeavour will be to integrate the services under health, family planning, nutrition, education and social welfare at the field level.
It is a measure of the maturity of our of production, particularly in essential sectors, is an obligation we owe to our people. In recent months, the workers have been experiencing considerable economic difficulties. In spite of this, our workers, who have a proud heritage of partiotism, know very well that the situation can be improved only if the social tasks of production are viewed in the larger national perspective. Therefore, workers have to make a supreme effort to increase production and to ensure quick and uninterrupted movement. This is the only way in which they can contribute to relieve the shortages faced by the common people.
## Ths Draft Fifth Five Year Plan Provides
democracy that notwithstanding the presert economic difficulties, a fifth of our population is exercising franchise this month in elections to State assemblies. I appeal to all politica parties to ensure peaceful conduct of the elections. We are proud of our record in this regard, as free and peaceful elections constitute an important feature of a stable democracy. Successful democracy consists not only of the freedom to choose but of a realisation that in spite of differences, the parties in power and in opposition abide by certain basic rules of conduct, the more important of which is the avoidance of all forms of violence and extra.-constitutional methods.
Early this month, Gujarat has come under President's rule. It is the respo Hty of all citizens to help in the establishment of a climate of self-restraint and cooperative effort so that the people's hardships can be alleviated.
In the year under review, our foreign policy was pursued with vigour and registered some notable successes. Relations with our neighbour, particularly Bangladesh, Bhutan, Nepal and Sri Lanka, as also Burma and Afghanistan, saw noticeable improvement in building up a policy of peace, friendship and mutually beneficial co-operation.
the framework and the programme to tackle the twin problems of food and fuel. The strategy for agriculture is based on a combination of the application of new technology and widening the base of production. The emphasis is on programmes for command areas and marginal areas on the one hand and for the small farmers on the other, so that the very process of increased production ensures wider distribution region-wise as well as between different sections of the people. The Plan gives special importance to the development of power, coal, oil and transport and of industries like fertilizers which are vital for agriculture. In a number of sectors, a large part of the output levels envisaged in the Plan is based on the assumption of full and more efficient utilisation of existing capacities. This is as much a part of the Plan as new investment.
The human problem of the persons stranded in Pakistan, Bangladesh and India after the conflict of 1971 is on the way to satisfactory resolution followig the historic initiative taken by India and Bangladesh The three-way simultaneous repatriation began in September last and is expected to be completed before the middle of this year. My Government is prepared to enter into negotiations with Pakistan to implement the rest of the Simla Agreement. We sincerely hope that the Government of Pakistan also desires this.
We have maintained a constant dialogue with Bangladesh on all issues of mutual interest. The Governments of both the countries have made concerted efforts to further strengthen friendly relations and cooperation in commercial and economic fields.
T am happy to say that the exchange of
1973, I had expressed our support to the Declaration of November 1971 by Indonesia, Malaysia, Philippines, Thailand and Singapore that South-east Asia should be a zone of peace and neutrality. Along with other countries of the region, we have always urged that the Indian Ocean should be a zone of peace and should be free from military bases of big powers. This has been emphasised by the General Assembly of the United Nations and the non-aligned countries who met at Algiers last year. It is, therefore, a matter of deep concern and disappointment to us that the United Kingdom and the United States of America have entered into an agreement for the establishment of a military base in the island of Diego Garcia in the Indian Ocean. We consider that the establishment of the military base is against the interests of peace and we sincerely hope that the wishes of the peopleofthis region and of the United Nations will prevail in this matter.
visits by our Prime Minister and the Prime Minister of Sri Lanka has resulted in the activisation of economic relations and cooperation between the two countries. The question of the status of all persons of Indian origin in Sri Lanka has been fin" Uy resolved and considerable progress has been made in finding a solution to othe questions.
The visit of our Prime Minister to Nepal
| We attach the greatest importance to our j friendly relations with countries of West I Asia. We are pursuing these in the emer-| ging context of greater economic exchanges i between developing countries. We have ! concluded agreements with the Republic i of Iraq covering many fields of such cooperation.
The growing friendship bet-r ween India and Iraq is reflected in the posi-j five response of Iraq in finding a solution ! to the problems arising from the rise in oil I prices.
and of the King and Queen of Nepal to India symbolised the close relations between us, which are based on mutual trust and commonality of interets. We admire greatly the resolve of the Government of Nepal to advance the economic and social interest of its people, a task in which we have been privileged to participate according to the wishes of the Government of Nepal.
Our friendly relations with Afghanistan established in West Asia without the vacation of Israeli aggression from all occupied Arab territories and the restoration of the rights of the Arab people of Palestine is well-known. There have recently been some positive developments and we hope that the West Asia Peace Conference will lead to lasting peace and stability in this region.
exchanged between Iran and us, there has are being developed and strengthened further by mutual co-operation in many fields. Several projects in which we will be able to participate under our technical and economic co-operation programme have been identified in Afghanistan.
During my visit to Malaysia in March Our view that no stable peace can be As a result of the high-level visits recentl y been a better understanding of each other's policies and many new avenues of mutually beneficial co-operation have been identified.
Government will pursue these \ igorously.
Yet another milestone was reached in our off these leaders on world issues, their commitment to peace and their increasing interest in the development of India and other countries of Asia. The visit of our Prime Minister lo Canada in June 1973 helped to further strengthen the close ties between the two countries.
Our -elations with African countries are relations with the Soviet Union with the exehangeof views and the Agreements that were signed when we had the pleasure of playing host to General Secretary Brezhnev in November 1973. The Agreements put the economic relationship between the two countries on a long-term footing. We are gratified that Indo-Soviet friendship has progressively attained newer levels of maturity and co-operation.
close and co-operative. Tlte Vice-President visited Tanzania recently and participated in the tenth anniversary of the Revolution in Zanzibar. In line with our well-known support for the struggle of the African people against colonialism and racism, we hail the emergence of the new State of Guinea-Bissau.
In June 1973 our Prime Minister visited Close co-operation with other non-aligned Yugoslavia. 1 paid a visit to Rumania and Czechoslovakia in October 1973. Later in the year, we welcomed General Secretary Dr. Gustav Husak of Czechoslovakia and an agreement on economic cooperation was signed with Czechoslovakia. President Tito's visit last month gave yet another countries has been one of the important aspects of our foreign policy. The Prime Minister attended the Fourth Summit of nonaligned countries in Algiers in September, 1973. The Conference demonstrated a large measure of agreement in the political field and also the resolve of member countries to co-operate with one another more concretely.
opportunity for a detailed exchange of views on recent developments affecting nonaligned countries.
Hon'blc Members, the basis and nature of There has been a conscious effort on the part of my Government and that of the United States of America to strengthen relations on the basis of equality and mutuality of interests. An important result of this is the agreement on the question of U.S.
l upee funds in India.
relationships between the countries of the world are changing rapidly; so also many concepts which held sway during the last two decades. Amidst all this, it is a matter for satisfaction that the basic tenets of our foreign policy since Independence have been cosistently vindicated.
The conclusion of the Commercial Co-
During this session you will consider the demands for grants for the next financial year and the pending and new legislative business. Government will bring before Parliament a Bill to amend the Prevention of Food Adulteration Act to enable more vigorous enforcement.
Among other operation Agreement with the European Economic Community is a significant step and with this, our relations with the enlarged Community have started well. We are con - fident that trade and economic co-operation between the Community and India will grow fast in the coming years.
measures are the Bills for establishing Central universities at Pondicherry and Hyderabad, Bill to further amend the Ninth Schedule to the Constitution and a Bill to amend the Agricultural Refinance Corporation Act to The views exchanged during the visits of the Prime Minister of two sister countries of the Commonwealth—Australia and New Zealand-indica daated the enlightened stand
enable it to extend assistance directly to Area Deveioment Corporations.
Hon'ble Members, I summon you to the exacting tasks of 1974. The formidable challenges that the nation faces can be turned into an opportutnity by a determined people. 1 have no doubt that as the representatives of the people, you will give the right lead in a spirit of dedication and constructive co-operation and that the country will overcome the present difficulties and emerge stronger and more united to advance along the chosen path.
(Text of the President's Address in Hindi)
## Obituary Reference
MR. CHAIRMAN: It is with profound feel ings of sorrow that I have to refer to the passing away of Professor Satyendra Nath
|
65c43c1957bc56710706823a | reports | # 1 President'S Address [13Th Feb. 1995] Laid On The Table 2 The Parliamentary Debates Official Report In The Hundred And Seventy-Thipd Session Of The Rajya Sabha
Commencing on the 13th February, 1995|24th Magha, 1916 (Saka)
RAJYA SABHA
Monday, the 13th February, 1995|24th Magha, 1916 (Saka)
The House met at thiirty-eight minu. tes past twelve of the clock, MB. CHAIRMAN
in the Chair.
(The *Nationcii Anthem was* played)
PRESIDENTS
ADDRESS—LAID
ON
THE TABLE
SECRETARY-GENERAL: Sir, I beg to lay on the Table a copy (in English and Hindi) of the President's Address to both the Homes of Parliament assembled together on the 13th February, 1995 [Placed in Library. See No. LT. 7004/95]
(Text of the Address deffered by the President (Dr. Shalnkar Dayal Sharma) in Hindi).
[English version of the Text of the Addiess ox the dispute through negotiations. It is of utmost importance that the impioved delivered by the President (Dr. Shankar Dayal Sharma)] Hon'ble Members, I welcome you to this Session of Parliament.
atmosphere leads to a last.-iug solution to this dispute and we collectively ensure that communanam does not vitiate politics.
As I stand to address you this year I note has been set up under the Prime Minister. Vigoroug efforts have been made to step up the pace of the develupment and economic activity in the State. Government has ensured availability of adequate funds to the State and wiU
regularly assess its needs syrnpathetically, in terms of the lesourccg required for its developmental needs. The obojective of revival of the democratic prooess is also being pursued. The delimitation of constituencies is being done and the work of revision of the voters' list has bean taken up by the Election Commission. Operations against militants are being that the optimism and self-assurance evident last year has been vindicated. The projections made have been fulfilled in substantial maasiu-e and it can be said with con-fldence now that the country has made the turnaround initiated by the new economic and other policies of the Government. The people have responded handsomely by reasserting their faith in social stability. Political parties have also contributed to strengthening democracy and funda-rnental valueg such as the rule of law. Our country has improved its standing in the global community and now stand; poised to become one of the rapidly growing economies of the world.
The law and order situation continued to be under control in 1994-95. There was no major communal riot in the country and incidents of violence were fewer. Polls in Goa, Sikkim, Andhra Pradesh, Karnataka and Maharashtra have been peaceful.
intensified. The at-temptg by militants to disrupt the Amarnath Yatra were successfully foiled by the administration. Iti-spite of the trying conditions, the security forces are showing restraint and are sensitive to the feelings of the local people. Delegations of dipio-mats and Parliamentarians visited the State and interacted freely with various sections of the people. This eon. tinuing transparency has generatad over-all confidence.
Government is determined to be watchful, particularly in respect of the secessionist and communal forces that pose a threat to the unity and integrity of the country.
On the Ayodhya issue, one of the its policy of dealings firmly with insurgent activities. At the same time, efforts are being made to encourage these disruptive eleuienis to abjure violence and join the national mainstream. The Government of Mizoram signed an Accord with Hmar Peoples Convention resulting in svirrender of mUitante. There has been similar surrender by ITLFA militants in Assam.
An agreement was signed in Stip-tember
1994 providing for a Jharkhand Area Autonomous Couscil.
A
new Bill noteworthy developments is that the Supreme Court delivered its jidge-ment on the reference made to it-It has upheld the validity of the Acquisition Act, but not the provisions relating to abatement of the pending suits. The disputed area is vested in the Central Government which is now to act as a statutory receiver for maintaining the status quo until the disposal Ol' the revived suits. Compliance with the decision of the Court Is essential. The judgement recognises the possibility of a reailution incorporating the provisions of the agreement has been passed by the Bihar Assembly.
A separate Department of J & K Affairs In the North-East, Government is pursuing Laid on the Table 20
Government is seized of the issues that commodities available.
Further efforts wiU be continued in this oiiec-tion. Remunerative minimum support prices have arisen in the hill areaa agitation in Uttar Pradesh and is confident that given patience and sympathetic handling by all concered, acceptable solutions will be found.
The National Human Rights Commission would continue to be assured to the farmers to safeguard the country's food security. As far as essential commodities are concerned, (iovernment will pursue the twin objectives of ensuring adequate availability and fair prices, with extra concessions for the poor.
carried on its work with dtdi-cation. Government stands committed to its policy of promotion and preservation of human rights.
The wide ranging industrial deregulation The economic reforms have brought about has evoked commendable lesponse from entrepreneurs. More than 17,000 investment intentions have bean filed since July 1991 totalling investment of over Rs. 3,50,000
crores with potential for cirect employment for 3.4 milion persons. Nearly 20 percent investment intentions have so far been imf.lemented and another 20 percent are rt various stages of implementation. These are estimated to geneiate direct employment to the extent of
1.4
million persons.
Disbursements by our major financial an upswing in the econcimy. During 1994-95, the gross domestic product, at constant prices, is expected to increase by 5.3 percent, as against 4.3 percent last year. Industrial revival started with an 8 pevcent increase in production in the first half of 1994-95. Foreign Exchange reserves rose from $ 15.1 billion on 31.3.94 to over $ 19 billion m the last week of January, 1995. Govern-ment was in a position to repay aboui $ 1.1 billion to the IMF ahead of schedule. As a consequence of the strong revival of the industrial sector, imports increased by 23.90 per cent. Exports have also grown by 16.9 pention in dollar terms. The rupee atinued to remain stable and was made onvertible on Current Acount.
Govermuant is concerned about the institutions from April to December, 1994 have snown a 39 percent increase over the same period in the previoug year. The growth of domestic initiative has generated interest amongst foreign investors and collaborators. The confidence exhibited by foreign investors in the skillg and resources of Indian partners is evident from the large foreign direct investment in joint ventures to the extent of 80
percent-Cumulative foreign direct investment approvals since
1991
have exceeded Rs. 20,000 crores, the bulk of it in long gestation infrastructure pojects.
Government continued with its policy of reforms and de-regulation in other sectors. The new Drug Policy and the Telecom Policy are steps in this direction.
The small scale sector is an important component of our industrial base, its production level being Rs. 2,41,648 crores and generating an employment Df 139 lakh persons. It recorded a growth of 7.1 percent last year. Exports from this sector are around increase in prices, especially of articles of mass consumption. The price situation is being watched closely and measures are being taken to prevent shortages. In the case of some commodities, like sugar and edible oil, prices had risen mainly due to insufficient domestic production. The comfortable foreign exchange podition hag enabled imports to augment supplies and control the rise in the prices. In the case of wheat and rcee, open market sales out of public stocks of foodgrains held by the Food Corporation of India liave also been undertaken. The Public Distribution System and Revamped Public Distribution 5 System are also being used to provide assistance in making essential Rs. 24,000 crores, accounting for naarly 35 percent of total exports. To meet the credits needs of this sector, the Reserve Bank of India had issued guidelines including the adoption of a single window scheme in 85 districts where small scale units are concentrated, and setting up of specialised bank branches. Government will enhance support to this sector further through liberal assistance for technology upgradation.
A high power committee under the Chairmanship of the Prime Minister has adopted an action plan for revitalising and improving khadi and vil-lage industries and generate addi-tional employment for 2
million persons. A speeial empiayment programme would toe under-taken in 50 selected districts and intensive deve-lopmnt of 125 blocks in the coutry would be promoted.
Employment for the educated youth is a prime concern of the Government. The Prime Minister's Rozgar Yojana which is being implemented from 2nd October, 1983, was designed to provide self-employment for youth in the urban areas. It has been now extended to cover the rural araas also from this year. During the current year, 2.3 lakh educated youths will benefit from this porgramme, as against 31,797 last year. Banks have sanctioned loans to 69,483 entrepreneurs till 31st December, 1994. Government will provide loan to 7 lakh youths to generate 10 lakh employment opportunities before the end of the 8th Plan period.
The production of nitrogenous. fertilizers is expected to reach an all time record of 78.2 lakh tonnes in 1994-95, in terms of nutrients. Production of phosphatic fertilizers is expected in increase from 18.5 lakh tonnes in 1993-94 to 23 lakh tonnes in 94-95 in terms of nutrients. Government has continued with its efforts to in. cpeaset the domestic production of fertilizers with five new plants likely to commence production shortly Government has continued to give high priority to the development of the agriculture sector. The ppodii.--tion Ol foodgrains is expected to increase from 182 million tonnaes last years to 186 million tonnes in the current year. Disbursement of agric cultural credit was Rs, 15,100 crores during 1993.84. and is eocpected to reach a level if Rs. 16,700 crores during 1994-95. The area covered undar irrigation is exected to go up by 2.77 million hectares in 1994-95 bringing the total area under irrigation to 87.82 million heetares. The consumption of fertilizer nutrients during 1994.95 is estimated at 136 lakh tonnes sbowing. *sm. inerease.* of about 10 per cent over the comwnp-tion of 1993.94.
Government has been prombting diversiflcation schemes in rural areas to provide higher incomes from occupations like horticulture arid flshttig.
Accordingly, horticulture has been given an outlay Rs. 1000 crorss in the current Five Year Han as against an outly of only Rs. 24 crres in the last Five Year Plan. Pish production, which recorded, an all time high of about 46.8 lakh tonnes in 1903.94, is likely to reach a level of 47.5 lakh tonnes during 1994-95. There has been a threefold increase In export of agricultural products durnig the last five years.
Rural development is the central concern of all the developmental efforts of the Government.
Sharply targeted rural development programmes underpin its employment strategy in poverty eradication. The central plan allocations for rural development schemes have been progrcoslvely enhanced during' the last three years and the current year's allocation of Rs. 7,010 arores is the highest ever in our plannig history. This large outlay goes to provide additional wage enqdoymeait as well as selfemployment througfr mobilisa-. tion of instittftional finances on a
[RAJYA SABHA]
Laid on the fable 24
States to complete the Panchayat electoral process without delay.
Government recognises the need tor an inegfated programme to deal with the problems of urban poverty, this programme would include scien. tilic disposal of urban wastes of all Kinds. Voluntary organisation would be fully involved in its design and irnlpementation. Government is seeking to formulate a scheme for 345 Class II towns of the country that have populations ranging from 50,000 to 1 lakh.
large scale Rs. 5,055 crores go to provide employment through the Jawaliar Rosigar Yojana and the Employment
Assurance Scheme. For the Employment Assurance Scheme an amount *ot R*s. 1,200 crores has been earmarked during the current year, This programme has been expanded from 1,778 most backward bloks ot" the country to 2,279 blocks in the current year, In addition to the Jawahar Boizgar Yojana, an intensive JRY Prtgramme focuses on 120 chronically backward districts. All these schemes together are expected to generate 1,470 million mandays of employment in the current year.
The response from the State to the Special
## The Asset-Cum-Loan Based Integrated Rural
Component Plan for the Scheduled Castes has been encouraging. The Central allocation to States to supplement their efforts this year in Rs. 273,86 crores. An important step taken last year was the constitution of the National Commission for Safai Karmacharis, to oversee the programmes aimed at the liberation and rehumilitation of the Safai Karmacharis. The Commission would address itself to Development Programme which provides self-employment would cover about 2 million rural poor hotisehoulds from this year. The district and block level credit plans are being coordinated more effectively and the average investment per household is being incresaed to Rs. 12,000, Rs. 2,000 crores of insti tutional credit would be mobilised through a subsidy of Rs.
1098
crores.
'These rehabiUtation programmes such as training better mobilisation of institutional finances and the need fer enhanced unit costs.
Efforts to strengthen and expand economic support programmes to the poor by the provision of margin money and loans through the National Scheduled Castes and Scheduled Tribes Finance and Development Corporation, have been stepped up as has been its authorised share capital from Rs. 125 crores to Rs 300 crores programmes wiU increasingly cater lor the rural literate youth. Simultaneously, the Programme for the Development of Women and Children in Rural Areas is being extended to all the districts and wiU now provide Rs. 25,000 against Rs_ 15,000 hitherto, to women's groups to help them pursue economic activities and enhance group acion in matters like literacy and family welfare, leading to women's empowerment.
The first step in providing for reser. vation As stipulated, by April, 1994; all States of 27 per cent &r the OBCs under the Government of India was taken in September, 1993 and is under implementation. In order to ensure that the full benefits of this measure are available to the OBCs, Government relaxed the standards required for OBC candidates to be on par with the Scheduled Caste and Scheduled Trifoe candidates and as a result. 1,873 additional OBC candiamended their existing Pal-chayati Raj lawg or have legislated new laws. Now it is necessary to hold elections and constitute Panchayats at all levels. Some States have already made a beginning, In order to fulfil the high expectations of the people, the Panchayats must be empo. yrered with financial and administrative delegaton. I call upon all the dates qualified for the Civil Services Preliminary fbcaminations,
1994.
Government has also decided to extend the 3
years' age relaxation princlple and to allow 3
additional attempts.
The National Minorities Development and Nutrition Policy, the setting up of the National Nutrition Council and the National Creche Fund and inuple-mentation of the Mahila SamridAhi Yojana. The Mahila Samriddhi Yojana has had an impressive response. By December, 1994, 72 lakh accounts had been opened with a total deposit of Rs. 65.90 crores. The National Creche Fund wiU assist in starting 1800 additional Cheches by the end of the 8th Plan to provide day care services to 45,000 children of working women and ailing mothers.
As part of the effort at covering the entire country with tha Integrated Child Development Services Programme, it is proposed to cover 1000 new blocks through Commimity Nutrition Centres in one' lakh villslges, as a first step, during 1995-96.
Finance Corporation became opeiational jn September, 1994 with an authorised share capital of Rs. 500 crores to promote the econo mic developmen,t activities of the backward sections amongst the niino-rities and tt) assist the upgradation of their tachniral and raitreprenearial skills. An amoimt of Rs. 25 crores has been provided during the current year to the Maulana Azad Education Foundation. The Foundation will set up residential schools for girls in low literacy slum and rural areas.
To achieve the goal of Education for All by Certain new measures are under
2000 AD, Government wil progressively raise the allocation to education so as to reach tha target of 6 per cent of GDP. Total Literacy Campaigns are now operational in 312 districts in the country coveitng about 50 million learners in the 9—45 years age group. With the emergence of Total Literacy (Campaigns, it is now being perceived that univer-sal adult literacy is an achieveable task.
The Government is determiiwd to eradicate Child Labour progressively in all
consideration of the Government for the protection of the Scheduled Castes and the Scheduled Tribes and the disabled. These are inclusion of the SCs and STs (Prevention of Atxoci-ties) Act, 1989 and the Protection of Civil Rights Act, 1955 in the IX Schedule of the Constitution, setting up of a Commission under Article 5*99(1) of the Constitution to review the development strategies like the Tribal Sub Plan and other measures presently in operation for the welfare and development of the Scheduled Tribes so as to improve upon these strategies, legislation to provide equal opportu-nitieg to the handicapped in areas like education, vocational training and employments and, in hazardous industries, by the year 2000 AD. A National Authority for Elimination of Child Labdur has been set up coordinate actions *of* the core sectors of development administration such as employment placements, and a Trust for the Welfare and protection of the mentally retarded.
In matters relating to women and children education, rural development, women and child development, health and labour to devise integrated programmes that Would being about conditions condudve to withdrawal of children from employment and place them family in schools.
We are today In the torefaont in the Governments approach has bfeen to provide an enabling policy environment in which their concerns, particularly those of the girl child, are the central foeus of planning. Priority is given to the empower-, ment of women, support services and nulxition programmes. The mtewot-thy achievements in this process have been the adoption of the National practical applicationof the space technology in vital areas. The po-lar Satellite Launch Vehicle D2 and
## Laid On The Table 28
| the Augmented | Satellite | Launch |
|---------------------|--------------|--------------|
| Vehicle—ASLy | D4 | deemonstrat- |
Keepuig effort in Somalia, ably sup-poiied by the Indian Air Force and Navy, especially in the de-induction OR iorces.
In the conduct of international relations , we can view the past year with satisfaction. Existing friendships were reinforced and new luider-i-v.idiag created around the world ox our objectives and policies.
Our continuing support for the United ed our capacity to place satel. lites into polar and near earth orbits. Our INSAT class of satellites are providing services in telecommunication, TV broadcasting, meteorology and disaster warning. The next satellite in this series, INSAT 2C, and the remote sensing series satellite, IRS, IC are planned for launch in 1995. It is heartening to note that India has been selected for the setting up of a UN Centre for Space Science and Technology Education to cater to the needs of the Asia pacific region.
Nations, which observes its 50th anniversary this year, is based on the premise that it is the most effective instrument for the realisa-lion of humanity's common goals, India's To meet the aspirations of the people to initiatives at the United Nations included the need for the demo-cratisation of the world body and tho enlargement of the UN Security Cojncii's membership to reflect contemporary realities. We proposed a Fourth Special Session on Disarma. meat to address post- Cold War issues of *global* security.
View programmes in their own language, Doopdarshan lias reconfigured its satellite Servie Out of 14 channels, ll satellite pnnels are now exclusively for programmes in regional languages.
In our own region, we will be hosting the The country continued to make strL des in next SAARC Summit in April this year and look forward to working with our SAARC colleagues to further strengthen regional co. operation.
During the past year, closer bilateral relations with our neighbours conti. nued to secure our attention. We welcome the new Governments which assumed office in Sri Lanka and Nepal through multi-party democratic elections. We look forward to closer understanding and increasing cooperation with them, as with all our other neighbours.
Its efforts to harness the power of the atom for peaceful purposes. With the com,p]etion of the sixth Indian designee and constructed nuclear power reactor - the second unit of the Kakrapsu- Atomic Power Station, which achieved criti-cality on January 8 this year - the coimtry once again proved its self, reliance in this advanced techono-logy. There were also spin-offs from the use of nuclear technology, such as the producton of nucleargrade graphite fabrication of medical lasers and development of parallel supercomputers.
Pakistan has however continued on its Our Armed Forces maintained their vigilance in defending our international borders and maritime interest. They also made valuable contributions in counterinsurgency operations in Jammu & Kashmir and in the North-East.
Abroad, the Army won plaudits for its distressing path of confrontation with India and unacceptable interference in our internal affairs. We have taken repeated initiatives with Pakistan to settle all unresolved issues between our two countries according to the Shimla Agreement. Our other of such a dialogue still stands. Meanwhile We regret the unilateral steps
.contributions to the' UN peace.
India—South Africa cooperation in various fields.
Our efforts to effectively project abroad the taken by Pakistan to close their office in Bombay and the Indian Consulate General in Karachi, thereby creating greater barriei-s to people-'to.people con acts, and commercial, cultural and other relations.
The Government has worked to success of our econonoic management, on which depends the well-being of our people, and the beneficial changes that *have* taken place as a result of economic liberalisation, have received excellent response in countries abroad.
The momentum gathered by the country
consolidate understanding and cooperation with old and new (friends abroad. My State visits to Bulgaria and Bomania renewed the close ties that have existed for decades between India and countries ot Eastern Europe.
Our Vice-President visited Australia, South through these policies has to be sustained to ensure that the bene. fits that have started accniing are not frittered away. A combined effort is necessary to strengtthen the Africa and China and the visits rein creed our ties with the countries.
The prime Minister's visits to the United Kingdom, USA, Russia, Vietnam and Singapore contributed significantly to the all round enhance. nient of our ties with them.
The visit to the USA, which resulted in confidence of investors in our econo. my and of the people, particularly the imdeiprivlleged, in the economic reforms. The tone and tenor of your debates reflect and greatly influence both. I am confident you will set pace with due regard to these objectives. I commend you to your tasks and wish you success. JAI HIND
## Obituary References
greater mutual undersitanding on matters ot concern to the two countries, opened a new chapter in bilateral relationship. It laid the groundwork for resurgent India—US interaction not only in the political, economic and commercial fields but in other areas as well.
MR. CHAIRMAN; Hon'ble Members, 1
The Prime Minister's visits to the United Kingdom, Vietnam and Singapore testified to our desire to reinforce ties with our European and Asian partners.
India—Russia ties gained in substance and momentum during the last year. The Moscow Declaration on the Protection of the Interests of Plura. listic States signed by President Yeltsin and our Prime Minister was a notable contribution to the conduct of inter-state relations.
We recently welcomed President Nelson refer with profound sorrow to the sad demise of Giani Zail Singh, former President of India and a vet. eran of our freedom struggle, on 2Sth December, 1984. Gianiji was born in May, 1916 at Sandhwan village of Peridkot district of Punjab. Gianiji joined the freedom movement while he was still in his teens. He took an active part in the movement against princely sristocracy and autocratic rule of the Maharaja of Farid-kot. He was arrested in 1936 and subsequently courted arrest on numerous ooeasons during the freedom struggle. He led the National Flag agitation at Faridkot in 1946. It can never be forgotten that Giani Zail Singh underwent a sentence of five, years' rigorovtei imprisonment in soli-tary cell 'for his sctivitees as a frafc-dom fighter.
Mandela of South Africa as the Chief Guset for our Republic Day celebraations this year , His visit marks a new chapter In the building up of |
65c43c1957bc567107068258 | reports |
## The
# Parliamentary Debates Official Report In The Fifty-First Session Of The Rajya Sabha
Commencing on the 17th February, 1965/*the 28th Magha,* 1886 *(Saku)*
## Rajya Sabha
3. Looking back on the past twelve Wednesday, the \lth February, 1965/the
2%th Magha, 1886 *{Saka)*
The House met at fifteen minutes past twelve of the clock, MR. CHAIRMAN in the
Chair.
## Members Sworn
months, notice can be taken of several achievements which should inspire hope and confidence. National income had increased at the rate of only 2.5 per cent, per annum during the first two years of the Third Plan. In 1963-
64, with an increase of 9.2 per cent in industrial output, the figure rose to 4.3 per cent. An increase of about 8 per cent, in industrial production is expected during the current year.
Shri T. N. SINGH (Uttar Pradesh). Shrimati LALITHA RAJAGOPALAN (Madras). Shri S. K. SINGH (Manipur).
4. Many public sector undertakings in
## Presidents Address Laid On The Table
which heavy investments have been made during the Third Plan, have commenced production. They include the Heavy Engineering Plant at Ranchi, the Mining SECRETARY : Sir, I beg to lay on the Table a copy of the President's Address to both the Houses of Parliament assembled together on the 17th February, 1965.
{Text of the President's Address in English)
Machinery Plant at Durgapur, the Refinerv at Barauni and the Machine Tool Factories at Pinjore and Kalamasseri. Although production in some of these establishments is still at a pilot stage, we can look forward to a steady increase in their contribution to our economic development in the years to come.
Members of Parliament, I welcome you
5. In power and transport, the country has once again to your labours in a new session of Parliament.
2. During the year which has just ended, the been making steady progress. The number of electrified villages has gone up from 4,000 at the beginning of the First Plan to nearly 40,000. Power generation by the end of the Third Plan is expected to amount to 11.7 million k.w. as against 5.6 million k.w. at the end of the Second PJan. Shipping tonnage at about 1.4 million GRT has already exceeded the Third Plan target. Railways have adequate capacity to meet our current needs and further development is in progress.
6. New oil discoveries were made in Gujarat and Assam and India has secured rights of exploration in the off shore nation went through its severest trial in recent years when the people lost their beloved leader Shri Jawaharlal Nehru, their friend, philosopher and guide. There were other stresses and strains also. We were greatly distressed by the serious loss of life and property unfortunately caused in South India by unprecedented cyclonic conditions. Relief measures were promptly taken. Some of our difficulties continue and we have to face them with courage and determination. At the same time the country has made significant progress in many directions.
10. We are beginning this year with the islands of Iran. New and workable deposits of uranium have been found and our reserves of uranium are substantial. A Plutonium Plant, entirely designed and built by the scientists and engineers of the Trombay Establishment is now in operation. The construction of Atomic Power Stations at Tarapur and Rana Partap Sagar has commenced. The use of atomic energy for peaceful purposes will steadily expand in the future based increasingly on indigenous
supplies,
technology and research.
7. Another significant feature has been the biggest Kharif harvest on record. The Rabi crop also is expected to be appreciably better than in previous years. With these favourable trends and the efforts being made to increase production, our Government are taking all possible steps to achieve long term stability in agricultural prices. To guard against all eventualities, however, a programme of building up buffer stocks in the country out of domestic {production and imports has been formulated. The Food Corporation, which has been set up in the public sector, will help to ensure orderly marketing and check anti-social trends in the trading community.
11. In the industrial sector, although our greater availability of certain consumer goods of interest to the common man. The production of mill-made cloth alone rose by another 210 million meters in 1964.
8. As you are aware, the production of past record is an impressive one, a fresh momentum is required. This is necessary not only in the interest of stability of prices, but even more for accelerated growth.
12. While higher production is the best answer to the threat of inflation, the monetary pressures on the price level and on our external payments cannot be ignored. Part of this pressure comes from unaccounted and undisclosed money. Stringent measures are being taken to unearth such money and there can be no relenting^ in this effort. At the same time, those who are prepared to mend their ways and make a full disclosure of their illegal earnings, should be encouraged to do so.
foodgrains did not show any appreciable increase during the three preceding years. In a number of States the availability of foodgrains became inadequate and there were periods of deep anxiety. To meet the situation the import of foodgrains was increased and other measures were taken to ensure as equitable a distribution of the available supplies as possible. There has recently been some easing of the situation and food .prices have registered some decrease. Government are keeping a close watch on the situation and they propose shortly to review the food distribution policy.
13.
Further, our Government have
9. Apart from the measures adopted to deal already annoimced that there will be no more deficit financing. This will neces sitate curtailment of public expenditure. The expansion of bank credits will also have to kept in check. A tighter monetary discipline is essential not only to achieve stability of prices but also to secure a better balance between our imports and exports.
14. In recent months, Government have with the food problem that emerged in recent months, a long term policy of increasing food production has been adopted. A number of steps have already been taken and some are in the process of implementation. The farmer has been assured of minimum prices which have been fixed at economic levels and an Agricultural Prices Commission has been set up to keep the situation under constant review. Special attention is being given to the timely supply of fertilizers and other requirements to the farmer. Quick maturing minor irrigation schemes will be implemented on a priority basis.
had to make substantially large repay ments of loans and interest and also to pay large amounts for imports. This has led to a decline in our reserves of foreign ex change despite an increase of nearly 50
crores of rupees in our export earnings durina 1964. Measures for remedying the situation are being considered by Government.
15. We are now engaged in the formulation of the country's Fourth Five Year Plan. This will be a crucial task. It will cover a vital period. A memorandum on the Plan has been considered by the National Development Council and has bggn laid on the Table of Parliament. The most important objective of the Fourth Five Year Plan would be a substantially higher rate of growth with the most effective utilisation of resources. For this task, the Government propose to strengthen the machinery of planning.
Emphasis in the Plan will be on agriculture, a balanced development of heavy and other industries, creation of large employment opportunities, advancement of the rural sector and narrowing down of social and economic disparities. Special attention is proposed to be given to schemes which will mature quickly. We have to aim at a minimum level of living for every family in this vast country. The implementation of such a Plan will need a dedicated and sacrificial response from all sections of society. I am sure such a response will be forthcoming under your guidance.
16. Public sector projects will be imple-
I gramme through allotment of more funds J and by co-ordinated action for which Housing Boards are being set up. It is also pro-! posed to make land available at reasonable rates to lower income groups.
mented with greater speed and they will be designed to give quick returns to the community in the shape of production and profits. Advance action in respect of many Fourth Plan projects will be taken in the course of this year. To meet shortages in the supply of cement, a Corporation for the production of cement has been set up in the public sector. The role of the private sector in the Fourth Plan will also be important. It will be Government's endeavour to provide reasonable facilities to the private sector to enable it to fulfil its assigned role efficiently and effectively.
, paid to measures to promote labour welfare
17. The importance of accelerating the rate of growth in both agriculture and industry is heavily underlined by the increased in our population. Between 1951 and 1961, the population of the country I during 1964 were somewhat disturbed.
increased from 360 million to 440 million. At the present rate of growth, the population will be 490 million by the end of the Third Plan and 550 million by the end of the Fourth Plan. Family Planning has become an urgent necessity for the nation. An integrated family planning service, involving family planning and maternity and child welfare measures, has been evolved. About 12,000 Family Planning Centres have already been set up.
18. Sound planning is extremely important. It is, however, the result that matters so far as the common man is concerned and results can be obtained in a satisfactory manner only if the administrative machinery for the implementation of plans and policies functions with efficiency, speed and integrity. Improvement of the administrative machinery will, therefore, be one of tile principal objectives of Government's endeavours.
19. The Government are conscious of the need to expand and improve the social services, particularly for the Scheduled Castes and Scheduled Tribes. An Educational Commission has been set up to advise the Government on the national pattern of education at different stages. Steps are being taken to expand the housing pro-
20. Our Government attach the greatest importance to the maintenance of indus trial peace through the code of discipline and through the various instruments of negotiation, conciliation and adjudication which exist. Fullest attention is also being by setting up new Wage Boards for industries and deciding on the recommendations of the Bonus Commission, and by the establishment of consumer co-operatives and fair Price shops in industrial establishments and the expansion of the workers' education programme. It is unfortunate that industrial relations in certain sectors
24. The explosion of a nuclear device by is our Government's earnest hope that both employers and employees will recognise the supreme importance of maximising output by working together with a sense of national purpose.
21. We are greatly distressed by the China has shocked peace-loving people all over the world. Another explosion in China may not be far off. We have decided that despite this development, we shall not embark on the manufacture of atomic weapons. We shall, instead, continue to strive for inter national understanding which will eliminate the threat of nuclear war.
25. Our relations with countries near and far, large and small, in the East and in the West, continue to be friendly. Only China continues to adopt a hostile attitude. There has also been unfortunately no improvement in our relations with Pakistan.
26. Non-alignment and co-existence remain the essential planks of our foreign policy. We have always firmly believed that peace is essential for the progress of mankind. It is even more necessary for the developing nations of the world who have to tackle enormous problems. For these reasons and because of our natural interest in our neighbourhood, we have felt greatly events in South India. We deplore the acts of violence which have occurred and ex tend our deep sympathy to those who have suffered. Doubts about the language issue seem to have agitated the minds of the people there. We wish to state categorically that the\ assurances given by the late Shri Jawaharlal Nehru and re-affirmed by our Prime Minister will be carried out without qualification and reservation. This is essen tial for the unity of the country. While Hindi is the official language of the Union, English will continue to be an associate offi cial language. This will continue as long as the non-Hindi speaking people require it. We earnestly hope that this will allay the apprehensions of the people and lead them to return to their normal work. Members of Parliament will no doubt consider this whole policy which has been affirmed and re-affirmed often, in all its aspects, legal, administrative and executive. The Chief Ministers will be meeting at an early date to consider the situation.
22. The Chinese threat on our Northern concerned over the recent events in South-east Asia. Our Government have suggested that a Geneva type conference should be held early, to arrest the dangerous trends which have been developing in Vietnam, in particular, so that a political solution to the problem can be found. We are also in touch with friendly countries in regard to this matter.
27. The election of Mr. Harold Wilson as borders continues unabated. To strengthen our defences, a Five-Year Defence Plan covering the years 1964 to 1969 is being implemented. New Divisions are being raised and equipped according to schedule.
The output of Ordnance Factories last vear was nearly double of what it was three years ago. Our Air Force is being expanded to provide better protection against hostile air attacks and ground and logistical support to our troops. Steps to strengthen our Naval defences have also been initiated.
23. The increase in defence expenditure the Prime Minister of the United Kingdom, of Mr. Kosygin as the Chairman of the Council of Ministers of the U.S.S.R. and of Mr. Johnson as the President of the U.S.A. have been significant events. All the three leaders are old friends of India. For the first time, a French Prime Minister has visited India and understanding between the two countries has grown as a result. The visits to our country of the Prime Minister of Ceylon, the Chairman of the Revolutionary Council of Burma, the King of Bhutan. Their Majesties the King and Queen and the Foreign Minister of Nepal bear testimony to the growth of friendship between India and her neighbours. We have also had imposes an additional burden on the community and diverts our resources from development. We are not engaged in an arms race with any country. At the same time, we are determined to be strong enough to repel any attack on our borders.
(v) The All-India Handloom Board
Bill.
(vi) The Seamen's Provident Fund
Bill.
(vii) The Rice Milling Industry (Regulation) Amendment Bill.
the privilege of welcoming Their Majesties the King and Queen of Belgium, the President of the Republic of Iraq, the President of the Supreme Council for the Armed Forces of the Republic of Sudan, the President of Finland, the Prime Minister of Singapore, the Crown Prince and Prime Minister of Kuwait and the Premier of Mauritius.
(viii) The Patents Bill.
(ix) The Income Tax (Amendment)
28. Special mention has also to be made of
Bill.
33. A statement of the estimated receipts the visit of His Holiness Pope Paul VI who came to Bombay in December 1964 to participate in the Eucharistic Congress. In the spirit of our traditions, people belonging to all religions gave him a rousing reception during his short stay in the country.
and expenditure of the Government of India for the financial year 1965-66 will be laid before you.
29. As a nation fundamentally opposed to
34. Members of Parliament, you have colonialism, we have rejoiced in the emergence of Malawi, Malta and Zambia as sovereign countries. Tomorrow, the Gambia will be a welcome addition to this list.
30. During the past year. I paid State visits a full and strenuous programme ahead of you. The development of a prosperous socialist society and the expansion of friendly co-operation with other nations of the world remain the basis of our policies. Our objectives are known and our goals are clear. To their attainment you have to guide the nation with unflinching faith and firm resolve.
(Text of the President's Address in to the U.S.S.R. and Eire. The warm reception I had in both these countries was an ample tribute to the goodwill that exists for India and her people in these countries.
Hindi)
31. The Prime Minister led the Indian delegation to the Conference of Non-aligned Nations at Cairo. A fundamental unity and similarity of approach manifested itself in the Conference and gave overwhelming evidence of the continuing validity and relevance of the policy of non-alignment.
32. Twenty-two Bills are already before the Parliament for your consideration. Among the new Bills which the Govern ment propose to introduce during the year are the following : -
(i) The Payment of Bonus Bill.
(ii) The Factories (Amendment) Bill.
(iii) The Import and Export Control
(Amendment) Bill.
(iv) The Indian Tariff (Amendment)
Bill.
## Statement Of Bills Assented To By The President
SECRETARY : Sir, I beg to lay on the Table a statement showing the Bills passed by the Houses of Parliament during the Fiftieth Session of the Rajya Sabha and assented to by the President.
1. The Industrial Disputes (Amendment)
Bill, 1964.
2. The Food Corporations Bill, 1964. 3. The Indian Trade Unions (Amendment) Bill, 1964.
4. The Appropriation (No. 6) Bill, 1964.
5. The Anti-Corruption Laws (Amendment) Bill, 1964.
6. The Mineral Oils (Additional Duties
of Excise and Customs) Amendment Bill, 1964.
7. The Kerala Appropriation Bill, 1964. 8. The Slum Areas (Improvement and
Clearance) Amendment Bill, 1964.
9. The Hindu Marriage (Amendment)
Bill 1964.
10. Tie Provisional Collection of Taxes
(Amendment) Bill, 1964.
11. The Wealth-tax (Amendment)
Bill, 1964.
12. The Essential Commodities (Amendment) Bill, 1964.
13. The Official Trustees (Amendment) Bill, 1964.
14. The Prevention of Food Adulteration
(Amendment) Bill, 1964.
15. The Appropriation (Railways) No. 3
Bill, 1^64.
16. The Indian Tariff (Amendment)
Bill, 1964.
17. The Repealing and Amending Bill,
1964.
18. The Payment of Wages (Amendment) Bill, 1964.
19. The Standards of Weights and Measures (Amendment) Bill, 1964.
20. The Foreign Exchange Regulation
(Amendment) Bill, 1964. |
65c43c1957bc56710706825f | reports | # The Parliamentary Debates Official Report -
IN THE TWELFTH SESSION OF THE RAJYA SABHA
commencing on the ' i$th February 1956
## Rajya Sabha
Wednesday, 15th February 1956
The House met r.t fifteen minutes past twelve of the clock, MR. CHAIRMAN in the Chair.
## President'S Address Laid On The Table
SECRETARY: Sir, I lay on the Table a copy of the President's Address to both the Houses of Parliament assembled together on the 15th February 1956.
3. We were deeply grieved at the death of His Majesty King Tribhuvan Bir Bikram Shah of Nepal, in whom our country nas lost a good friend and Nepal an enlightened and courageous king. The recent visit of His Majesty KinR Mahendra Bir Bikram Shah and his gracious consort has further cemented* the warm and friendly relations between the Indian and Nemlese peoples. I wish His Majesty a progressive and prosperous reign.
4. With Pakistan, negotiations to renew rail traffic between India and West Pakistan and to liberalise the Indo-Pakistan visa system have been successfully concluded, while negotiations in regard to the canal water dispute are being continued. Agreement nas also been reached in regard to moveable property of evacuees.
The exodus of population from East THE
PRESIDENT
(DR.
RAJENDRA
PRASAD): Members of Parliament, I am happy to address you once again and welcome you to the new session of Parliament. The past year has been one of considerable endeavour and achievement for us, both in the domestic and the international spheres. Our people and Parliament may, with reason, look upon them and their own labours with satisfaction and cautious optimism.
There have been, Pakistan ihto India has lately increased/ in numbers and causes us much concern. This is a human problem of great magnitude, with tragic significance to large numbers of people. The State of West Bengal, already heavily burdened, has to shoulder this additional burden. My Government will continue to hope that the Pakistan Government will take appropriate measures to alleviate the circumstances which lead to this exodus.
5. My Government regret that, in spite of however, events at home and abroad, and certain developments which must cause us apprehension. These we must meet with courage, patience and redoubled efforts and remind ourselves that there is room neither for complacency nor for despair.
2. Our relations with foreign countries our peaceful approach to the solution of the problem of the Portuguese colonies in India, the Portuguese Government have made no response and persist in their methods of colonialism, suppression and terrorism. My Government deeply regret the reference made by the Secretary of State of the United States to **the** Portuguese conquests abroad as 'provinces' of Portugal and the further implication that they.are an integral part of the country of Portugal itself.
6. The Conference of the countries of Asia and Africa at Bandung, at which twenty-nine countries were represented, has been hailed not only as an outstanding event in Asia, but is also recognised as one of worm importance. The Bandung Declaracontinue to be friendly. During the year, greater understanding and co-operation have developed with many of them, and there is also increasing appreciation of the approach that we strive to pursue- We have had distinguished visitors from many countries visiting us, including many Heads of States and Governments, Prime Ministers and Foreign Ministers, and we have been happy to,welcome them in our midst. My Prime Minister paid official and goodwill visits to the Soviet Union, Czechoslovakia, Poland, Austria, Yugoslavia, Italy and **Egypt**
tion, which is a historic document and to which the world has paid much attention, commits the participating countries to the outlook and policy of peaceful approach for the solution of all problems and far the furtherance of world peace and cooperation.
bours, Nepal and Ceylon, as well as Cambodia, Laos, Libya and Jordan. It is a matter of deep regret, however, that Japan and Mongolia still await entry into that organisation. My Government will use their best endeavours to assist in resolving this problem, and also look forward to the admission of the Sudan in the near future.
7. In the continent of Africa, my
11. My Government regret that the progress achieved as a result of the efforts of last year to bring about negotiations and to resolve differences between the United States and China has not made much headway, and observe with concern that the alternative to a negotiated settlement is fraught with grave possibilities. My Government will continue to use their best endeavours to advance the cause of peaceful negotiations.
Government hope that self-government and independence will soon be an established fact in the Gold Coast and that that country will be enabled to become an equal partner both in the Commonwealth and the United Nations. Somewhat similar developments are taking place in some other parts of West Africa, and my Government hope that this progress will gather momentum and that the example will spread to the other parts of Africa now under colonial rule. We welcome also similar developments in Malaya.
12. In Indo-China, the work of the International Commissions in regard to
8. We welcome the emergence of the supervision and control has been reasonably satisfactory, despite certain incidents. The political solutions agreed to at Geneva by the great Powers, as well as the parties^ concerned in Indo-China itself, however, stand Sudan as a free and independent Republic and we pay tribute to the notable and historic part played both by Britain and Egypt in this development. My Government have established diplomatic relations With the Republic of the Sudan. We have also concluded a treaty of friendship with Egypt.
9. My Government have declared their sympathy with the struggles of peoples who strive for their liberation from colonial rule and, more particularly, in respect of the peoples of Tunisia, Algeria and Morocco. It is the firm belief of my Government that in the peaceful approach and negotiations for reaching agreed settlements is alone to be found the right and hopeful way for the solution of these problems.
challenged in respect of Vietnam and have encountered serious difficulties in Laos. The Commission ' is confronted with this problem even in its tasks of supervision and control. My Government hope that the parties concerned and the two co-Chairmen of the Geneva Conference, as well as the other powers involved, will use their best efforts not merely to maintain the armistice, but to further real political settlements which will contribute to the welfare of those countries and the stability of Asia and remove the menace of conflict, the bounds of which it is not easy to foresee.
10. The recent session of the United Nations has been notable for break
13. In the Far East and Asia generally, the ing the deadlock in regard to the greater universality of its member ship. Sixteen new nations have been admitted.
We are particularly happy that among these are our close neighcontinued exclusion of China from the United Nations and the trade and other embargoes and discriminations imposed against her, make for instability and conflict. My Government will try their utmost, in to the work done by Government, and even more so by the people themselves, in repairing the damage caused by these calamities.
common with like-minded governments, both at the United Nations and outside, to help to remedy this situation which continues to be perhaps the gravest threat to world peace.
14. The world situation, as a whole, has
17. Our objective is to establish a socialist shown considerable improvement during the year, as a result of various developments and conferences and notably the Conference of the Heads of four Governments at Geneva. We regret that this progress has not been continued and there has been some deterioration. No actual progress has been made in respect of disarmament or the allaying of the hostilities and fears of the cold war. Our own country continues to have friendly relations with all countries, but this deterioration in the world situation has had adverse results in the development of .peaceful relations and cooperation in our part of the world also.
15. More particularly, the policy of military pacts, based upon balance of power and mutual suspicion and fear, has led to deterioration in Western Asia, created division in the Arab world and resulted in the building up of armaments in Western Asia. This causes us concern even on our near frontiers. We deeply regret the conclusion of the Baghdad Pact as we did that of the SEATO.
16. The period of our first Five Year Plan pattern of society and, more particularly, to increase the country's productive potential in a way that will make possible progressively faster development. The question of providing more employment is of vital importance. Special stress has been laid on enlarging the public sector and, more especially, on developing basic and machine-making industries. Three new major iron and steel plants and a plant for the manufacture of heavy electrical machinery have been decided upon. It is proposed to carry out mineral surveys on an extensive scale so as to discover and exploit the potential resources of the country. With a view tp creating employment as well as the production of many types of consumer goods, reliance will be placed on labour-intensive methods of production and, more particularly, village and cottage industries. The Community Projects and the National Extension Service have already produced revolutionary changes in many of our rural areas. These will be continued and expanded and, it is hoped, that by the end of the second Plan period, they will cover
nearly the whole of our rural area.
18. The second Plan is more ambitious than the first Five Year Plan and involves a far greater effort on the part of our people. We have a long way to go before we reach our objective of a socialist pattern of society and the national income has been raised to an adequate level and there is equal opportunity for all. But we are well set on tbe road to progress. The basic criterion for determining our lines of advance must always be social gain and the progressive removal of will soon come to an end and my Government have been actively engaged in preparing the second Five Year Plan. The success of the first Plan has produced confidence in our people and has laid the foundations for a more rapid growth of the national economy. The targets of the first Plan have been in many cases exceeded and the national income has risen by 18 per cent. Industrial production has increased by 43 per cent, and agricultural production by 15 per cent. It is particularly satisfactory that the production of food grains has increased by about 20 per cent., even though there have been disastrous floods in North India and cyclones caused havoc in the south of India. I should like to pay a tribute inequalities. We have arrived at one stage of our journey and we are now going to embark upon another and more fateful one. The progress we have made during the past years gives us satisfaction and a sense of **self-re-**
liance and hope for the future. But our capacity to progress as well as to make any useful contribution to world peace and cooperation depends upon our economic in our way and encouraging the spirit of separateness and intolerance. Many a time in the past, we have had to face and have overcome severe crises, and again we are on our trial as a nation and as a people. We shall succeed only by adherence to our old principles and ideals. I earnestly trust that you will consider these matters in a spirit of broad tolerance," always keeping in view the greater good of this great country of ours which we cherish and wish to serve. I hope also that, whatever Parliament, in its wisdom, decides will be willingly accepted by all our people.
strength and our unity. It depends on our sense of nationhood and our devotion to the basic ideals and principles which were laid down for us by the Father of the Nation. Without that indomitable sense of national unity and that spirit of dedication to the common cause, which enabled us to achieve independence, we can neither attain progress nor serve the larger causes of the world.
21. As you are aware, the old Imperial
19. The targets of the second Five Year Plan include: new irrigation of 21 million acres, additional 10 million tons of food grains, an increase in power generation by.3-4
million kilowatts, an increase in the production of coal by 23 million tons so as to reach the target of 60 million tons in 1960, an increase by 33 million tons of finished steel, 52 million tons of cement, and an additional 1-7 million tons of fertilizers. It is expected that as a result of the new schemes, additional employment will be provided for 10 million persons in industry and agriculture.
20. Recent events in some parts of India Bank of India has been converted into a State bank and my Government, after careful consideration, have decided to nationalise the life insurance business. As a preliminary step and in order to safeguard the interests of the policy-holders during the interim period, an Ordinance was issued last month vesting in the Central Government the management of life insurance business. A Bill will soon be placed before Parliament to convert this Ordinance into an Act. 1 have no doubt that this step will prove to be in the interests of the public as well as of insurance and will be a step towards the socialist ideal we have before us.
22. My Government attach importance to the reorganisation of rural economy and to the development of co-operatives, both in agriculture and in small-scale industries. Legislation for the purpose of organising agricultural marketing, processing, warehousing and production through cooperatives will be introduced in Parliament.
23. My Government will introduce a Bill in regard to the reorganisation of States. There are a number of Bills pending before Parliament, some of which have been considered by Select Committees. There will be legislation to amend the lists of the Scheduled Castes and Scheduled Tribes in the light of the recommendations of the have caused me great distress, as they must have pained all of you also. In our legitimate love of our languages some of us have forgotten for the moment that this great land is our common heritage and our common motherland. The reorganisation of States is an important matter and we must apply all our wisdom and tolerance to it; but, in the larger perspective of Ind,ia and of India's future, it is a small matter what administrative boundaries we prescribe for a State. Above all, there can be no progress for our country if we do not adhere to non-violence and tolerance and to the basic integrity which makes a people gr.eat. We have witnessed, in recent years, great achievements by our people. We have also witnessed some of our old failings still coming
118 R.S.L.—3
19 Papers laid
[ RAJYA SABHA ]
on the Table 20
Statement
1. The Indian Stamp (Amendment)
Bill, 1955.
2. The Abolition of Whipping Bill,
Backward Classes Commission and their examination by my Government. Legislative proposals in regard to the levy of sales-tax on inter-State transactions and on essential goods, as recommended by the Taxation Enquiry Commission, will also be placed before Parliament.
1955.
24. Three Ordinances, which have
3. The Working Journalists (Conditions
been promulgated since the last ses
of
Service)
and
Miscellaneous
sion of Parliament, will be placed
Provisions Bill, 1955.
before Parliament. These are: -
(1) The Representation of the People
4. Th( Appropriation (No. 4) Bill, 1955.
(Amendment) Ordinance 1955;
5. The Appropriation /No. 5) Bill, 1955.
(2) The Life Insurance (Emergency
Provisions) Ordinance, 1956; and
6. The
Indian
Tariff
(Second
Amendment) Bill, 1955.
(3) The Sales-Tax Laws Validation
Ordinance. 1956.
7. The Indian Tariff (Third Amendment)
Bill, 1955.
25. A statement of the estimated receipts
8. The
Prevention
of
Corruption
(Amendment) Bill, 1955.
and expenditure of the Government of India for the financial year 1956-57 will be laid before you.
9. The
Railway
Stores
(Unlawful
26. We shall celebrate this year a very
Possession) Bill, 1955.
10. The Prevention of Disqualification
(Parliament
and
Part
C
States
Legislatures) Amendment Bill, 1955.
11. The
Constitution
(Fifth
Amendment) Bill, 1955.
12. The Delhi (Control of Building
Operations) Bill, 1955.
significant event. Two thousand five hundred years ago, one of the greatest sons of India, the Buddha, attained *parinirvana* leaving a deathless memory and an eternal message. That living message is with us still in all its truth and vitality. At no time in the history of the world was it needed more than now when we are confronted by the terrible threat of the atomic and hydrogen bombs. May this message of tolerance and compassion of the Buddha be with you in your labours.
13. The
Insurance
(Second
Amendment) Bill, 1955.
14. The Press and Registration of Books
## Papers Laid On The Table
(Amendment) Bill, 1955
## Statement Of Bills Assented To By The
15. The Manipur (Courts) Bill, 1955.
## President
16. The Citizenship Bill, 1955.
SECRETARY: Sir, I lay on the Table a
17. The Companies Bill, 1955.
statement showing .the Bills passed by the Houses of Parliament during the Eleventh Session, 1955, and assented to by the President: |
65c43c1957bc56710706823d | reports | # The Parliamentary Debates Official Report In The Hundred And Forty-Fifth Session Of The Rajya Sabha
Commencing on the 22nd February, 1988/4 *Phalguna,* 1909 *(Saha)*
## Rajya Sabha
Monday, *the 22nd February,* 1988/4, Phalguna, 1909 (SaJcri)
former Prime Minister, Shri Charan Singh, and Shri M. G. Ramachandran, Chief Minister of Tamil Nadu, who through his farsightedness worked for and strengthened national unity.
The House met at fifty-five minutes past
3. Our vision of India is of a land whose twelve of the clock, Mr. Chairman in the Chair.
unity and integrity are invulnerable to external threats or internal weaknesses;
—where
the
ideals
of
democracy,
## President'S Address—Laid On -The Table
SECRETARY-GENERAL: Sir, I beg to
secularism and socialism enshrined in our Constitution, are fully realised;
—where social justice prevails, with
equality of opportunity for every human being;
lay on the Table a copy of the President's Address to both the Houses of Parliament assembled together on the 22nd February, 1988. [Placed in Library. *See* No. LT- 5471/88].
—where science and technology have
helped to wipe out poverty and disease;
[Text of the Address delivered by the President, Shri R. Venkataraman, in
—where economic development does not
English].
HONORABLE MEMBERS,
exhaust the bounties of nautre, but creates wealth in harmony with it;
—where
industrialisation
and
mod-
It is a privilege for me to address you for the
ernisation are fused with moral and spiritual values;
—where all religious and cultures flourish
in an atmosphere of mutual respect and cooperation
first time as President. I welcome you to this session of Parliament. I particularly felicitate the new member's, who for the first time, include a representative from the newly constituted constituency of Daman and Diu. I give my good wishes to the people of Goa, which has attained statehood.
We want an India whose interaction with
2. A few weeks ago, we were deprived of the nations of the world is dedicated to peace and international cooperation, and a new world order based on equality, freedom and justice.
In the last 40 years we have orogressed along this path, illumined byMahatma Gandhi and Jawaharlal Nehru. We shall adhere to it, come the presence of a great soul. A link with the stirring days, of the freedom struggle is no more. A close associate of Mahatma Gandhi, Khan Abdul Ghaflar Khan was a symbol of the spirit of non-violence and secularism. His life was a saga of unsurpassed courage and sacrifice. I also pay tribute to the other colleagues who have left us, including the what may, with the determination and courage instilled in us by Indira Gandhi.
4. The struggle for independence was the precursor to the struggle for self-reliant progress, the struggle
for the many challenges to our independence, integrity and nationhood. Efforts have been mounted, from outside and within, to subvert, suborn and undermine our democratic political system.
Our ever-vigilant people have thwarted all such efforts.
6. The failure of the rains has tested the social emancipation, the struggle to recover for India her traditional, historic place in the vanguard of human civilization.
Our achievements have been notable. More notable still has been the consistency of our endea vour, the sincerity of our effort, the dedication and hard work of our people. Our primary goal has been the rapid amelioration of poverty and resilience of our economy and the strength of our purpose. Our farming community, and indeed the nation as a whole, has responded to this serious economic challenge in a most heroic manner. The people are cooperating magnificantly with the Government. The nation's economic performance is a tribute to the soundness and strength of our development strategy.
its eradication. The key to the alle viation of poverty lies in a rapid and
sustained expansion of employment opportunities in both rural and urban areas.
Our strategy has been
7. With a determined and concerted national
effort, the challenge of terrorism is being met in Punjab and elsewhere. Following President's Rule in Punjab, the lawenforcing agencies have harnessed the resurgent will of the people of Punjab and mounted a determined campaign against misguided anti-national elements. The foremost task is to crush terrorism and isolate the secessionists. The terrorists have lately stepped up their depredations. They have to contend with the high morale, regenerated professionalism and strict vigilance of our security forces. They also have to contend with the people's refusal to be browbeaten or cowed. There can and will be no compromise over the nation's integrity and unity. In the search for a non-violent politi-cal solution of the problem within the framework of the Constitution, Government stands 'ready for a dialogue with all those who eschew violence. The nation mourns the loss of innocent lives. We salute those who have laid down their lives in the cause of national unity.
to combine direct intervention in favour of the poorer segments of society through asset-creation and employment-creationanti-povertyprogrammes, with faster and more diversified growth, underpinned by a massive programme of quality education. We seek to. realize the full potential of our unmatched human resources while harmonizing the country's educational profile with the growth requirements and employment needs of our economy. We have moved purposefully towards the achievement Of our aims. The pace of progress has markedly quickened in the last seven years. The Eighth Plan must provide for even faster 'growth, the maximisation of employment opportunities, and the vigorous reduction of regional disparities. We need both a higher rate of growth and a composition of growth which matches the basic needs of our people and the evolving requirements of our economy and society.
8. In Tripura, the extremists stepped up
5. We have pursued growth within the their campaign of terror. The escalated violence and mounting loss of innocent human lives left Governframework of two cruciai parameters; the freedom of our country end the freedom of our people. To this end, we have built strong insti-tUions to guarantee the democratic rights of uor citizens and to overcome
14. The National Policy on Educa tion is our ment with no option but to declare Tripura as a disturbed area. We are determined to put down violence there.
9. We are unflinching in our deter mination to root out communalism, Fundamentalism and other flssiparous tendencies, Committees of the Na tional Integration Council have been active in devising measures for the promotion of communal harmony.
The Centre and the States must make sustained efforts to implement the Fifteen Point Programme for the welfare of the minorities.
10. We are committed to the elimi nation of the consequences of centuries of ostracism, discrimination and oppression.
We have reorganised the National Commission for Scheduled Castes and Scheduled Tribes, and strengthened the office of the Com missioner.
The importance we attach to the welfare and development of.
these disadvantaged sections of our society is reflected in the Seventh Plan outlay of over Rs. 14000 crores in their favour.
It is a matter of particular satisfaction that coverage of Scheduled Castes and Scheduled pledge to the coming generations and our gauge to the future. Quality education for all is the key to national development. A programme of action for the implementation of the Policy was presented to Parliament in 1986. Major steps were taken during the year in pursuance of the Policy. Our concern for primary education is paramount. Operation "Blackboard" was launched to improve the quality of instruction and infrastructure in primary sehools. Particular attention is being paid to the educationally backward States. The massive programme for training 5 lakh
teachers annually has been continued. A
national core curriculum is being developed to impart an awareness of our heritage and a sense of national cohesion. The number of Navodaya Vidyalayas has risen to' 206. An analysis of admission tests to these schools for 1986 shows that 41 per cent of the selected children belong to families below the poverty line, 77 per cent come from rural areas, and the percentage of children from Scheduled Castes and Scheduled Tribes is much higher than their percentage in the total population. The scheme for *tree* secondary stage education for girls is now being implemented in all States. A comprehensive scheme has been drawn up for the vocationalisation of education.
Tribes under the IRDP
has reached
41 per cent, for exceeding the target of 30 per cent.
Government are working on a number of measures to enhance the quality of higher education and technical education.
15. The promotion of the small family
11. During the year elections were held in Jammu and Kashmir, Kerala, West Bengal, Haryana, Nagaland, Meghalaya and Tripura.
12. The provisions of Article 356 of the norm is a high national priority. Last year we recorded 20 million acceptors of contraceptive coverage: the highest level ever achieved. The problems of family welfare and health are interlinked. They are, therefore, being tackled through an integrated set of measures. Immunisation programmes have accelerated over the last two years.
Constitution were invoked in Tamil Nadu in view of the situation that developed there in January. Elections in the State are proposed to be held at an early date.
16. The emancipation of women from all
13. The Commission on Centre-State forms of prejudice, discrimination and abuse, deprivation and oppression relations which was set up under the chairmanship of Shri Justice R. S. Sarkaria has submitted its report. The views of Parliament, States and members of the public will be taken into account before arriving at decisions. is a national duty and a national task. Their full nd equal participation in the nation's life is a national imperative.
Government have exploited. Data about their conditions of work is inadequate and action to ameliorate their lot unsatisfactory. We are deeply concerned about their welfare and progress. We are committed to the improvement of their conditions. We have, therefore, appointed the National Commission on Rural Labour. We have also framed a National Policy on Child Labour. Voluntary agencies are being associated in the identification and rehabilitation of bonded labour.
prepared a perspective plan up to the year 2000 to deal with the problems of women. Government have also reconstituted the National Committe on Women to review and advise on policies and programmes for women. A National Commission has been established to look into the problems of women in the unorganised sector. Its report is expected shortly.
21. The Twenty Point Programme has
17. Following the barbaric incident at Deorala, the Commission of Sati (Prevention)
Act, 1987, was passed. Government are determined to root out this evil practice. These efforts should be backed by the widest possible mobilisation of public opinion
18. A very significant feature of our infused new hope in the countryside. It accounts for 30 per cent of the total Plan outlay for the current year. IRDP, NREP and RLEGP are our major instruments in the attack on rural poverty. In the last seven years, IRDP has assisted 23.4 million families belonging to weaker sections and other backward groups below the poverty line. Women now constitute 16 per cent of the beneficiaries. During the period April 1987— January 1988, NREP and RLEGP generated 471 million mandays of employment.
22. Water for the first time has been recognized as a vital national asset. The new National Water Policy derives from the national consensus on this point. This paves the way for effective planned development and efficient utilization of our national water resources.
changing society is the transformation taking place in the country's demographic profile. As a people, we are growing younger. Therefore, meeting the needs of our youth and fitting them for their role in the nation's life are matters of high priority. The Nehru Yuvak Kendras have been galvanised into a high level of activity. Intellectual and physical discipline, and a sense of entreprise and adventure, are being instilled in lakhs of our boys and girls through the NSS, the Bharat Scouts and Guides and the National Cadet Corps. The Sports Authority of India has done commendable work in affording
23. The Ganga Action Plan has opportunity to the athletic prowess of our youth.
caught the nation's imagination.
It
19. Harmonious industrial relations is in full swing in
25
towns and cities.
The protection of the en were a significant feature of the year. We compliment both labour and man vironment has emerged as a ma agements on their constructive attitu jor national priority.
Environmental des.
We want to promote a partici patory management culture in industry. Government intend to bring forward a comprehensive Bill on industrial relations and a Bill for major changes in the Employees Provident Fund Act.
standards have been notified for 24 priority industries. Parliament has already amended the law on air pollution. Stringent legislative action is planned to protect our forests and prevent the pollution of water.
20. While segments of our workforce
24. Government undertook legisla have organized themselves to secure and safeguard their rights, the over tion in the winter session of Parlia ment to establish a National Housing whelming majority of our working people are unorganized and, therefore, lion pregnant women and 18 million infants against vaccine-preventable diseases;
to Bank. One of its major tasks will be to finance housing for the weaker sections. In this session, Government will bring forward a National Housing Policy for providing dwellings for the unsheltered millions.
25. A
major item of the Twenty Point Programme is the development of a more responsive administration, especially in its interface with the impart functional literacy to 30 million adults;
to augment the production of oilseeds and edible oil; and to provide increased access to telecommunication services. These missions have formulated their operational plans for 1988-89 and 1989-90. The plans are being closely monitored and carefulY evaluated.
weaker sections.
A
series of work
30. Government have adopted the shops of District Collectors on the subject of responsive administration is being held. The machinery for the redressal of public grievances is being strengthened.
Special programmes approach of integrated energy for rural areas-. Natural and perennial sources of energy like solar, wind, biomass, mini-hydel sources and improved chulhas are being popularised.
are being organised to train officials
31. Oil exploration and exploitation are of the District Planning Cells.
26. Plans to provide speedy and in expensive justice for the under privileged made headway, A
Com mittee, with the Chief Justice of India as Patron-in-Chief, has been entrusted with the implementation being intensified. Refining capacity will be further augmented. A Centre for High Technology has been established to acquire, develop-and adapt modern technologies in refineries. The first section of the HBJ pipeline was completed during the year.
of legal aid schemes.
32. Significant strides have been made in
27. A new impetus was given last year to the drive against smuggling, foreign electronics. India has emerged as one of the few countries with its own technology for manufacturing electronic exchanges. Software exports are shaping up as a major new area of growth.
exchange racketeering and drug trafficking. The Central Economic Intelligence Bureau is coming down hard on syndicates of smugglers and racketeers.
33.
In nuclear science, we are among the
28. The menace of drugs is assuming few with a mastery of the complete nuclear fuel cycle for the production of nuclear power. A landmark in this area has been the designing of 500 MWe .capacity reactors. The Nuclear Power Corporation has been established to enhance the nuclear power programme.
34.
August
1967
was a landmark in our effort to develop capabilities worrying proportions. If we are not careful, the flower of our youth could be endangered, the physical and moral fibre of the nation could be sapped. We are determined to fight this evil. The Narcotics Control Bureau made major seizures of drugs during the year. Progrornmes have been launched for the deaddiction and rehabilitation of the unfortunate victims of drug abuse.
in seabed mining.
The Preparatory
29. We are consciously directing Commission of the International Sea bed Authority registered India's science and technology to the remov al of poverty, particularly in rural claim lor a mine site in the Indian India. This is the aim of our five technology missions.
The tasks assign ed to these five missions are:
to provide potable water to all villages in.the country; to immunise 20 mil-
Ocean for exploration and development. It is a matter of pride that India is the first country to be granted such a claim by the Authority.
35. The first Indian remote Sensing Satellite, designed and developed by the Indian Space Research Organisa tion
(ISRO), is being launched next modities through the Public Distribution System was greatly expanded. A package of debt relief and additional credit assistance was made available to farmers. For those affected for three or more years, this included a moratorium on principal and interest payments. A strategy for maximising rabi production has been adopted.
month by a Soviet launcher.
The second flight of the augmented Sate llite Launch Vehicle with the SROSS-II
satellite will be launched in April.
This satellite will carry a joint ISRO-West German payload.
In June, our communication satellite INSAT-IC
will be launched on the French Ariane launcher.
36. Our economy has demonstrat ed its resilience in the face of one of the worst climatic setbacks in me mory, namely, the widespread drought in most parts of the country and the floods in the eastern region. We have stood up well to the challenge and
38. We have always believed that the nation can be strong only if the farmer and farming are strengthened. Our quest for self-reliance in foodgrains has served us well. We built substantial buffer stocks. These have helped us
tide over difficult situations. In recent
years rice productivity has increased in the Eastern States covered by the Special Rice Production Programme. Government are making determined efforts to ensure that foodgrains output reaches 175 million tonnes by the end of the Seventh Plan. Emphasis will be placed On increasing the productivity of dry land farming. A Task Force has been set up to work out the details of the strategy. A recent innovation is agricultural planning on the basis of agro-climatic zones.
warded off a crisis because the deve lopment strategy followed by Indira
39. The funds needed for drought relief Gandhi, and the new initiatives of the past three years, have imparted greatly exceeded the amount originally budgeted. It became necessary to take fiscal counter-measures to check inflationary pressures.
A
temporary surcharge was an intrinsic strength to our economy. We will ensure the restoration of mo mentum in agricultural growth as soon as normalcy returns to clamatic conditions.
37. About 45 million hectares of land introduced On Income Tax, Wealth Tax, Corporation Tax and Customs Duty. Strict economy was enforced in public expenditure. The Reserve Bank also took measures to mop up excess liquidity in the banking system and tighten selective controls.
Inflationary pressures have been much less than in earlier droughts. In 1979-80 the Wholesale Price Index had risen by over 21 per cent. In contrast, the increase upto the third week of January 1988 has been only 9.8 per cent.
spread over 269 districts in 15 States and 6 Union Territories was affected by the drought. In many areas, it was the second successive year of failure of rains in some, the third or the fourth. A shortfall of 7 to 10 per cent in foodgrains production, as compared to the 1986-27
level, is apprehended.
A
comprehensive strategy was evolved to combat the impact of the drought. Central relief assistance was expeditiously pro, vided to the States for employment, drinking water and the supply of fodder, the flow of essential com-
40. The performance of the industrial sector has been commendable. It reflects the success of Government policies in stimulating investment and production, and promoting technological up gradation. A special tribute is due to our industrial workers y/ho responded well to the call for raising productivity. Since 1984-85, industry has grown at a rate between 8.5 to 9 per cent per annum, The momentum continued into 1987-88 with the general index of industrial production showing a growth of 10.2 per cent in April—November 1987 For the year as a whole, it is likely to exceed 8 per cent as the effects of the drought become evident in the non-agricultural sectors. The small-scale sector has contributed significantly to the rapid growth of industry in this period. A National Equity Fund has been established to provide financial support to small-scale manufacturing units. The Board for Industrial and Financial Reconstruction, set up under the Sick Industrial Companies
(Special Provisions) Act, 1987 became operational last May.
41. The infrastructure, which is almost exclusively in the public sector, has performed very well. This segment of the economy had shown healthy growth in 1986-87, with power generation expanding by 10.2 per cent, coal by 7.5 per cent and railway freight by 7.4 per cent. All these continued to show their strong performance in the current year. Power generation in April— December 1987 was 7.6 per cent higher than the previous year, despite a substantial decrease in hydel generation due to drought thermal power generation grew by
16.1 per cent. The Plant Load Factor in April —December 1987 has averaged 55 per cent, compared with 52.2 per cent during the same period in the previous year. The growth rate in coal in the first 9 months of 1987-88 was 10.2 per cent. Railway freight expanded by 5.4 per cent.
42. The public sector occupies the commanding heights of the national economy. It safeguards the economic independence of India. It must and will continue to play this pivotal role in our development strategy of building socialism. For this very reason, Government have stressed the need for improving its efficiency and financial viability. We are giving the public sector greater operational autonomy through Memoranda of Understanding.
## 43. The Balance-Of-Payments Position Has
been managed successfully despite a difficult external situation. Government's efforts at promoting exports have yielded results. Exports have shown a healthy growth of 24.7 per cent in value terms in the first nine months of the year, while the increase in imports has been kept at 13.5 per cent. The trade deficit over April—December 1987 was lower than the deficit in the same period last year. Government will keep the balance-of.
payments position under close watch.
44. Central Sector Plan outlays have been ahead of Seventh Plan targets. While this is gratifying, we have to pay much closer attention to the achievement of physical targets. The Mid-Term Review of the Seventh Plan has been completed by the Planning Commission and will shortly be presented to the National Development Council and Parliament.
45. From the earliest times, the Indian mind has transcended "narrow domestic walls" and seen all of humanity as one large family. Ours is a millennial heritage of tolerance and compassion, of the self-confident assimilation and synthesis of all that is best, from wherever it comes. Our struggle for freedom was guided by the ancient principles of truth, of nonviolence and of humanity as one.
The basic tenets of our foreign policy derive from this integrated and deeply entrenched world-view. The philosophy and practice of Non-alignment is modern India's outstanding contribution to contemporary international relations. It was a philosophy conceived and elaborated by those great men of vision, Mahatma Gandhi and Jawaharlal Nehru. First a minority view, deprecated and even derided, it has grown to embrace two-thirds of the international community, profoundly influencing thinking people everywhere, crucially contributing to the shaping of a new world order. Our foreign policy has safeguarded our sovereignty, promoted our national interests and made a vital contribution to the building of a just, equitable and democratic world order. We believe in the peaceful resolution of international disputes. We seek the enlargement of our friendship and cooperation with all countries. We are committed to the promotion of peaceful co-existence and nuclear disarmament.
46. While defense strategists remained mired in obsolete concepts of deterrence, in a world threatened with extinction by nuclear weapons, on the very morrow of Hiroshima, Mahatma Gandhi and Jawaharlal Nehru grasped the catastrophic implications of the advent of nuclear weapons. The elimination- of these weapons became a principal plank of independent India's foreign policy. Throughout the last forty years, India has worked steadfastly for a nonviolent world without nuclear wea-. pons. The Six-Nation Initiative, in which Indira Gandhi played a leading part, contributed significantly to the resumption of the deadlocked disarmament negotiations. The Initistive has mobilized opinion worldwide in favour of nuclear disarmament. It has helped set the stage for the agreement between the United States and the Soviet Union signed In Washington last December on the elimination of land-based intermediate and short-range missiles-While welcoming this agreement as a historic first step towards nuclear disarmament, we have emphasized the need to ensure rapid progress towards further and substantial reductions in nuclear arsenals, and the induction of all nuclear-weapon - powers into the process. The Stock-helm Summit of the Six-Nation Initiative last month spelt out the steps which, need to be taken in the wake of the INF Treaty with a view to ensuring the global elimination of all nuclear weapons within a specified period of time.
## 47. Our Future Is Also Threatened By The
growing degradation of the environment. We must ensure environmentally r sustainable development. We support international efforts to realise this objective. We hosted a meeting Of the World Commission on Environment and Development. The Prime Minister addressed the United Nations during the special debate on the Commission's Report.
48. In July 1987, we concluded the historic Indo-Sri Lanka agreement which has been welcomed in Tamil Nadu and all other parts of India as the harbinger of peace in Sri Lanka and justice for the Tamil minority in that country.
The agreement has been internationally acclaimed as an act of the highest statesmanship. The provisions of the agreement meet all the legitimate aspirations of the Sri Lanka Tamil minority while ensuring the unity and integrity of Sri Lanka. The agreement paves the way for durable peace and stability in that country. It meets important security concerns of ours and strengthens Nonalignment in Our region. As provided for in the agreement, and in response to the urgent request of President Jayewardene, the Indian Peace Keeping Force was sent to Sri Lanka. They have done an outstanding job in the most difficult circumstances. We pay tribute to our gallant soldiers. To those who have
52. We support the continuing' efforts °f the made the supreme sacrifice, we pledge that their sacrifice shall not be in vain. We are firmly resolved to secure the full implementation of all provisions of the agreement. We are giving further momentum to the processes envisaged under it. We are ensuring that the opeejtive of achieving a durable solution to the ethnic problem in Sri Lanka is realized in full measure.
49. Regional cooperation in South Asia is Secretary General of the United Nations on Afghanistan There .are signs of positive movement, although hurdles are being put in the way of a settlement. We welcome the announcement made by General Secretary Gorbachev regarding the withdrawal of Soviet troops in accordance with the stipulated schedule. We hope the forthcoming proximity talks at Geneva will lead to a final settlement. We have been in touch with the parties concerned. We will work together with them to ensure the status of Afghanistan as a sovereign, independent and non-aligned
country.
53. The travails of the Kampuchean people have caused us much distress.
We have followed with an important dimension of our foreign policy and of growing significance in our region. Under our Chairmanship, regional cooperation was consolidated and several major initiatives were promoted. The third Summit at Katmandu carried forward the process. We must realise the immense untapped potential for South" Asian cooperation.
sympathy and deep interest the efforts Of the Kampucheans to rebuild their country, protect their indepen
50. The peoples of India and Pakistan share dence and sovereignty, and safe guard their non-aligned status.
We are helping in the peace process. We have contributed towards bringing together those who must jointly work out a solution to the Kampuchean question.
We shall continue our efforts in cooperation with the parties concerned.
54. We have been deeply sympathy tic to the cause of the Palestinian people since the days of our freedom movement.
The partition of India and the partition of Palestine took much in common. We wish the people of Pakistan well. We want to promote trust and friendship through greater interaction between our peoples. We hope the Government of Pakistan will reciprocate our sentiments and help create the atmosphere for enduring peace and friendship. Unfortunately, our efforts in this direction have been hampered, and many of our initiatives thwarted. Pakistan continues its clandestine efforts to acquire nuclear weapons. They also continue to assist terrorist and secessionist elements in India. Is this the path of friendship and cooperation? My Government still believe that reason and good sense will prevail and the Pakistan place in the same year.
We have Government will make a fresh assessment of its policy towards India.
## 51. We Attach Importance To Building
stood by the Palestinian people through their trials and tribulations and the terrible suffering they have undergone. We deeply deplore the brutal repression of Palestinians by Israeli forces in the Occupied Terri-to ries. There can be no solution that ignores the inalienable rights of the friendly relations with China. Outstanding issues have to be resolved in an amicable manner, consistent with our national interest. It is important to maintain peace and tranquility along the horder.
Palestinian people. They must have a State of their own in their homeland. To find a lasting solution, an International Peace Conference should be immediately, convened, with the participation of the Palestine Liberation Organisation and others concerned.
35. The Iran-Iraq war is a matter of great
59. There has been substantial pro gress in our bilateral relations with the United States of America, particu larly in the technological and econo mic fields.
The Prime Minister had sorrow. It has led to an increasingly volatile situation in our neighborhood and the proliferation of external military presences in the region. We shall continue our work with others in the arduous search for peace.
wide-ranging talks with the US
Pre
56. Apartheid is a blot on civilize tion, repugnant to our commitment to sident. We continue to. impress upon the United Statee3 the seriousness of our concern about the supply of arma ments to Pakistan notwithstanding
, the unity of the human family. Since Mahatma that country's relentless pursuit of nuclear weapons.
60. India's relations with the Soviet Union have always been warm and friendly.
The Delhi Declaration of November, 1986 affirmed the common commitment of both countries to non violence and peaceful co-existence.
In the last three years, we have enlarged and enriched the content of our rela tionship.
There has been an unpre cedented increase in high-level visits, an unparalleled expansion of trade, Gandhi's early experiments with truth in South Africa, the elimination of racial discrimination has been an integral part of our freedom struggle and as yet an Unfulfilled mission of our foreign policy. Apartheid survives because of the economic and military sustenance which Pretoria receives from a few rich and powerful countries. The only way of ending this abomination without too much bloodshed is through comprehensive, mandatory sanctions under Chapter VII of the United Nations Charter. We have striven for this at the UN, Non-aligned and in Commonwealth forums. All Commonwealth countries, with ons and new dimensions and new vistas added in areas such as science and technology, further expanding our already wide-ranging cooperation.
The mutual goodwill of our peoples has found spectacular expression in exception, agreed at the Vancouver Summit last October to intensify their sanctions against apartheid. The AFRICA Fund, which we conceived of as a practical mea-ure of support, has received a gratifying response from countries all over the world.
57. The moves in Fiji to deprive the Festivals held in the two countries. During the year the Prime Minister of India visited the Soviet Union and the Prime Minister of the Soviet Union visited India.
people of their rights solely on a ra coal basis have caused deep resent
61. Honourable Members, with the united ment.
Fiji constitutional arrange ment must ensure fair and just re presentation in Parliament for all communities.
58. We welcome the agreement Signed in Guatemala by leaders of five Central endeavour of the nation we can meet with confidence the challenge that confront us and accomplish the tasks that lie ahead. We shall be faithful to the ideals and goals of our Republic. We shall place the national good above any sectional interest. I wish you all success in your endeavours in the year before us.
## Jai Hind
American countries. We earnestly hope the agreement will lead to a Just and lasting settlement ensuring the security, sovereignty and .independence of all States of the region.
[Text of the President's Address in Hindi]
Khan 1.00 P.M.
## Resolution On The Passing Away Of Khan Abdul Ghaffar Khan
MR.
CHAIRMAN:
Honourable Members, with profound sorrow, I refer to the passing away of Khan Abdul Ghaffar Khan, the veteran freedom fighter.
Khan Abdul Ghaffar Khan, affectionately called Badshah Khan or the Frontier Gandhi, passed away on the 20th January, 1988. As the honourable Members are aware, the nonagenarian leader had been suffering from heart ailment when he was specially flown to India last year and admitted in a Bombay Hospital, where after treatment he got over the crisis. When he came to Delhi after his treatment in Bombay, we had thought that he had turned the corner and was on
the road to recovery. But he suffered a paralytic stroke and was rushed to the All India Institute of Medical Sciences. In August last year he was flown back' to Peshawar in an almost unconscious state. On account of his robust constitution, the aged leader struggled for months to regain consciousness, but the had to succumb at last.
The news of his death has come as a personal blow not only to his own people, but to vast numbers here who had developed a mystic bond with the great leader. His life has been one of storm and stress and he has been a symbol of truth and fearlessness. He was a man of profound culture and served those in need and befriended those on whom nobody would ordinarily bestow attention. He was gem of the rarest hue and reflected and radiated light, kindness, moral stature and purity wherever he went. We respected him; we loved him.
##
Badshah Khan was born in 1890, in a highly religious and respected Pa-than family of the Peshawar Valley. He had his schooling in Peshawar. His educational career was cut short when his mother for whom the young |
65c43c1957bc56710706822b | reports | The Nation is proud of our armed forces. They have distinguished themselves in preserving the country's unity and territorial integrity and in defending our borders. Government is fully committed to the modernization of the armed forces. We will accord the highest priority to modernisation programmes to equip our armed forces with the required weaponry, equipment and platforms. The successful launch of the Agni-Ill missile is a shining example of the capabilities of our scientists and engineers who deserve full praise. Efforts to enhance our technological self-reliance received a new impetus with the commencement of the handing over of the main battle tank, Arjun, to the Indian Army.
My government is committed to the welfare of servicemen and ex-servicemen. An Armed Forces Tribunal has been established for adjudication of complaints and disputes regarding service matters and other appeals. The recommendations regarding substantial improvements in the pensionary benefits of personnel below officers rank and commissioned officers have been accepted.
My government firmly believes that the time has come to focus on ensuring that the processes of governance are sensitized, administrative instruments sharpened, and that the benefits of welfare programmes reach the aam aadmi. This commitment to canons of good governance must guide the massive slew of rural and urban reconstruction initiatives under Bharat Nirman, and other schemes for ensuring inclusive growth and social protection.
The pace of implementation of the Mahatma Gandhi National Rural Employment Guarantee Act has picked up considerably. During 2009-10, so far, 4.33 crore households have been provided employment and 203 crore person-days were generated. This scheme has benefited the marginalised sections, with the participation rate of Scheduled Castes and Tribes being about 52%. Participation of women has also been encouraging at around 49%. The scheme has also resulted in an upward revision of rural wages.
My government remains committed to completing the remaining tasks of Bharat Nirman in its second phase.
Under the rural housing component, during 2009-10, upto last December, 14 lakh houses have been constructed. Under the rural roads component, up to November, 2009, connectivity has been provided to nearly 34 thousand villages through the construction of 96 thousand kilometers of roads. Under the rural water supply component, of the remaining 627 uncovered habitations, 586 have been taken up in 2009-10. Of the 1.79 lakh quality- affected habitations, about 35 thousand have been taken up in 2009-10. Under the irrigation component, which began in 2005-06, creation of irrigation potential of one crore hectares is targeted by 2011-12. As on 31.12.2009, coverage of more than 70 lakh hectares has been achieved.
The Rajiv Gandhi Grameen Vidyutikaran Yojana has resulted in the electrification of more than 67 thousand villages. Free electricity connections have been provided to nearly
84 lakh below poverty line households. Steps have been initiated to achieve rural tele-density of 40% by
2014.
The urban sector of our country poses a challenge and presents an opportunity too. The Jawaharlal Nehru National Urban Renewal Mission was launched in
2005
to address this challenge and harness the opportunity. Under the mission, projects worth over Rs. one lakh crore have been approved for urban development and welfare of the urban poor.
Urban housing and slums continue to demand our attention. Government is working on the ambitious Rajiv Awas Yojana to assist states that are willing to assign property rights to people living in slums. This programme will strive to create a formal space for slum dwellers within our cities and transform and redevelop these cities to make them slum-free.
The micro, small and medium enterprises (MSMEs) sector is vital for sustained and inclusive growth.
Government will take necessary steps to expeditiously implement the recommendations of the Task Force on MSMEs. These include improved credit access, development of infrastructure, strengthening of the District Industries Centres, improved raw material supply, facilitating of product marketing, and institutional reforms.
My government subscribes to the idea of a balanced approach to national development, with special attention to our border States.
The Prime Minister's reconstruction plan for Jammu and Kashmir has been working well.
Roads, colleges, Industrial Training Institutes, and Anganwadi centres have been taken up on an urgent basis under this initiative. An additional 500 megawatts of power has been provided to the State during the winter months.
My government remains committed to the rapid development of infrastructure in the North-Eastern States.
The Special Accelerated Road Development Programme covering almost 10,000 kilometers is in progress. This project will provide minimum two-lane national highway link to all the State capitals, and to each district in these States. This includes over 1600 kilometers long Trans-Arunachal Highway.
A special programme to provide home lighting systems to all the border villages of Arunachal Pradesh is at an advanced stage of implementation.
It is imperative that as our economy grows apace, the disadvantaged sections of society be made part of the Indian success story.
Under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, nearly seven lakh titles have been distributed so far. Further efforts will be made, in conjunction with State Governments, to ensure early disposal of the remaining claims.
Government has developed a comprehensive roadmap for the development of minority communities. Credit flows to the minority communities have risen to Rs. 82000 crore in 2008-09, which exceeds 12% of the total priority sector lending. Recruitment of minorities to posts under the Central Government has gone up steadily. In fresh recruitments, minority representation has increased from 7% in 2006-07 to more than 9% in 2008-09.
The Multi-sectoral Development Programme for minority concentration districts has started off well. The three scholarship schemes started in 2007-08 have received an overwhelming response. The number of scholarships awarded has gone up to nearly 15 lakh. Girls constitute a very significant proportion of the awardees.
My government will bring a proposal to amend the Waqf Act during this session of Parliament.
Our unity and social harmony is the best answer to the terrorists and their divisive designs.
Hence, government is committed deeply to protecting our social fabric and to that end, it proposes to move for the early passage of the Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005, in this Session of Parliament.
My government is committed to ensuring early passage of the Women's Reservation Bill which was introduced in the Rajya Sabha in May 2008. Honourable Members,
| would urge you to accord special attention to this critical proposal.
Two bills for constitutional amendment to provide 50%
reservation for women in panchayats and urban local bodies have already been introduced and it is hoped that these can be passed during this session.
The National Youth Corps Scheme has been introduced to enable young men and women between the age group of 25 to 35 years, to serve two years in nation-building activities.
In the first phase 20 thousand volunteers would be deployed and they would be utilized in several creative social activities like cleaning the Dal Lake in Jammu and Kashmir.
Investment in education is critical for accelerated inclusive growth. Government has made substantial investments in primary education through the Sarva Shiksha Abhiyan and the Midday Meal Programme, and is moving towards universalization of education at the secondary level with the new Rashtriya Madhyamik Shiksha Abhiyan. The Right of Children to Free and Compulsory Education Act, 2009 has been notified to be effective from Ist April, 2010.
A scheme to assist State Governments in setting up 373 model colleges in educationally backward districts has been approved. A National Mission for Education through Information and Communication Technology has been launched to provide broadband internet connectivity to around 18,000
colleges and 400 universities in the country.
A scheme to provide interest subsidy on educational loans taken by students from economically weak families has also been launched.
A new campaign called "Sakshar Bharat", with special focus on female literacy, has been started.
My government is committed to bringing about a paradigm shift in our education infrastructure based on the three pillars of expansion, inclusion and excellence. A National Council for Higher Education and Research will soon be established as an overarching body to regulate higher education and research in India. Government is endeavouring to bring forward an appropriate legislation for facilitating the participation of globally renowned and quality academic institutions in our higher education sector, and for bringing in foreign education providers for vocational training and skill development.
For providing the common man an opportunity to share in the growth of the central public sector enterprises, government has decided to list profitable companies on the stock exchanges through a public offer of at least 10% of the equity.
My government has taken several steps to meet the challenge of climate change. The National Action Plan on Climate Change is being operationalised. The Jawahar Lal Nehru National Solar Mission has been launched with an ambitious target of 20 thousand megawatts of solar power by 2022.
A mission for Enhanced Energy Efficiency has been approved, and it is expected to work towards saving of 10 thousand megawatts of electricity by the end of the Eleventh Plan.
To ensure expeditious and effective disposal of civil cases relating to environmental protection and conservation of forests, a National Green Tribunal Bill, 2009 has been introduced.
The economy remains critically dependent on oil and gas. After the near stagnation in production for about a decade, the year 2009-10 is set to register a major increase, with 20 new oil discoveries.
My government is committed to give the aam aadmi maximum access to gas and petroleum products. A new scheme of rural LPG distribution namely, "Rajiv Gandhi Gramin LPG Vitarak Yojana' has been launched.
With a view to meeting the objective of 'Power to All' by 2012, as stated in the National Electricity Policy, a special effort has been made to encourage expansion in electricity generation capacity. As a result, during the Eleventh Five Year Plan we expect to add more than three times the capacity that was added in the Tenth Plan.
My government has announced a quantum jump in the pace of developing National Highways to reach 20 kilometers a day. Several policy initiatives have been taken to create an enabling environment.
There is a fresh momentum in the development of National Highways.
The Civil Aviation sector could not remain unaffected by the global slowdown. Our national carrier, Air India, was particularly badly hit. Steps are being taken for its early rehabilitation under the careful guidance of a Group of Ministers.
The expansion and modernization of airports, especially the four metro airports, are progressing well. The Delhi airport project would be fully operational by July, 2010, well in time for the Commonwealth Games.
The Airports Economic Regulatory Authority has been established to discharge regulatory functions in the airport sector.
My government has been implementing the National Maritime Development Programme which envisages an investment of over Rupees one lakh crore, including private investment, on identified projects in the port and shipping sectors. The Indian Maritime University has now become fully functional with campuses in Chennai, Mumbai, Kolkata, Visakhapatnam and Kochi.
The Indian Railways knit this vast country together. My government is committed to fulfilling a substantial expansion in capacity and modernisation of railway technology and to increasing the speed of both passenger and freight trains, while improving safety.
Train services have commenced in the entire Kashmir Valley, from Qazigund to Baramulla, demonstrating the commitment of my government to the development of all corners of our country. A special North East Rail Development Fund has been created, to provide assured financing for nine major national projects in the North Eastern region.
The Indian Railways have also commenced work on the ambitious Dedicated Freight Corridors on the Eastern and Wester trunk routes. This project would help drive India's growth.
Government, in partnership with the Government of Japan, has moved ahead on implementing the ambitious Delhi- Mumbai Industrial Corridor project. This challenging initiative, embracing six States, will provide impetus to industrial development in an environmentally sustainable manner, by providing quality infrastructure, efficient transportation, reliable energy supplies and efficient logistics.
My government is committed to the goal of extending the benefits of modern communication facilities to rural areas. Financial support is provided from Universal Service Obligation Fund to provide infrastructure for rural connectivity. My government has already initiated action to set up 10 thousand towers in 2010-11 for connecting remote areas across the country. As against the target of 60 crore telephone connections by 2012, the achievement already exceeds 57 crore, with an unprecedented addition of nearly 2 crore connections in the month of December 2009 itself.
Mission Clean Ganga, under the aegis of the National Ganga River Basin Authority is expected to ensure that by the year 2020, no untreated municipal sewage and industrial effluents flow into the Ganga. This task, to ensure both nirmal dhara and aviral dhara, would involve collective and coordinated efforts of the Centre and the States concerned.
In the inclusive society that we aspire for, people must have confidence and access to a fair system of justice. Government has decided to set up a National Mission for the Delivery of Justice and Legal Reforms aimed at transforming the government into a responsible and cautious litigant, introducing judicial management, leveraging information and communication technology to improve court administration and case management and reducing pendency of arrears.
Our quest for good health for all remains a national challenge. The National Rural Health Mission has stimulated creation of public healthcare infrastructure. To correspondingly augment the availability of human resources, many measures like establishment of more medical, nursing and para-medical institutions in under-served areas, creation of additional seats for specialists and super-specialists, and incentivising service by doctors in rural areas, have been initiated.
Early indications reflect the positive impact of this mission.
My government responded with alacrity to the Influenza A HIN1 pandemic. More than one crore inbound passengers were screened at international airports. New H1N1 testing laboratories were set-up, two crore doses of drugs were distributed to States free of cost, and 15 lakh doses of vaccines have been imported for health workers.
For the first time in our country an indigenous Influenza A H1N1 vaccine is being developed which will be available this year.
My government has undertaken a number of steps to unearth unaccounted money parked outside India. These include amendment of the Income-tax Act, 1961 to enable the Central Government to enter into tax agreements with non-sovereign jurisdictions. Steps have already been initiated for negotiations for entering into Agreements for the Exchange of Information with major jurisdictions. Renegotiation of the Tax Treaty with Switzerland is in process. India is an active part of the global efforts to facilitate exchange of tax information, and to take action against tax evasion.
Access to news and entertainment must be made affordable and universal. To this end, in addition to notifying guidelines for providing Headend in the Sky services, the digitalization of both All India Radio and Doordarshan is on the anvil. The Commonwealth Games 2010
will be covered in High Definition format by Doordarshan for the first time. We also take pride that Indian films and music compositions have got international acclaim and recognition for our artists.
The Unique Identification Authority of India has been established with a mandate to issue unique identity numbers based on biometrics to all residents of India. This mammoth and unprecedented exercise will serve as a great enabler to improve targeting and delivery of major government welfare programmes and public services, especially to those who are poor and marginalized. The first set of unique identity numbers is expected to be issued in the early part of
2011.
A Delivery Monitoring Unit (DMU) has been established in the Prime Minister's Office to review a select number of flagship programmes and other initiatives. The nodal ministries concerned have begun publishing DMU reports on their websites on a quarterly basis, to keep the nation informed of their progress.
Government is committed to creating an innovation strategy for government, industry, entrepreneurs, technologists and academicians with a focus on inclusive growth and appropriate eco-system necessary to bring about generational change in our approach to development.
The country is hosting the prestigious
19th Commonwealth Games in October,
2010.
Preparations for the event are at an advanced stage. Every effort will be made to ensure a befitting and successful conduct of the Games.
We have played our role in global affairs with responsibility and in the pursuit of peace, stability and progress in our region and beyond. Government will continue its active engagement with the world based upon the principles laid down by our founding fathers, and with the objective of furthering our goals of rapid and inclusive economic development and poverty alleviation in an increasingly interdependent world.
The visits to India by the King of Bhutan and the Prime Minister of Bhutan, the Prime Minister of Bangladesh, the President of Maldives, and the President and the Prime Minister of Nepal have given new content to our traditional ties of friendship with neighbouring countries.
Following the elections in Sri Lanka, we will continue to work with the Government to enhance our partnership. India will contribute to the humanitarian and rehabilitation efforts for the Tamil minority and long term re-construction in conflict-affected areas.
India's assistance to the reconstruction efforts in Afghanistan witnessed important milestones and we will continue to partner Afghanistan in its development efforts. India is ready to explore a meaningful relationship with Pakistan if Pakistan seriously addresses the threat of terrorism and takes effective steps to prevent terrorist activities against India.
Our relations with the major powers have been further consolidated. The Prime Minister's visit to the USA laid the framework for the further expansion of the India-US partnership at the bilateral, regional and global level. My visit to Russia and the visit by the Prime Minister have renewed our time-tested friendship and opened new areas of cooperation. The 10th India -
European Union Summit held in New Delhi was a milestone in our widening partnership with Europe. Our Strategic and Cooperative Partnership with China progressively acquired greater regional and global content. The visit of the Prime Minister of Japan underlined our mutual desire to accelerate our cooperation in all areas. The Prime Minister attended the first ever stand-alone summit of the BRIC countries.
My government pursued its 'Look East' policy with vigour. The President of the Republic of Korea was our honoured Chief Guest at the Republic Day celebrations. Government hosted the President of Mongolia, and the Prime Ministers of Australia and Malaysia. The signing of the India~ ASEAN Free Trade Agreement and the launching of several new initiatives within the India-
ASEAN framework and the East Asia Summit process will further integrate India into the Asia-
Pacific region.
My visit to Tajikistan, and the Prime Minister's presence for the first time at the Summit of the Shanghai Cooperation Organisation were a reflection of government's policy to strengthen the bridges of friendship and understanding with Central Asia. Relations with Turkey were strengthened following the visit of the President of Turkey.
The Prime Minister's participation in the Non-aligned Summit in Egypt further consolidated our relations with the developing world. We will continue to accord special attention to the countries of the Gulf and West Asia. India's steadfast support to the Palestinian cause was reiterated during the visit of the President of the Palestinian National Authority. The visit of the President of Namibia, and the visit by our Vice President to Botswana, Malawi, and Zambia carried forward our deepening engagement with the continent of Africa. We will build upon our steadily expanding cooperation with Latin America.
India's views on global challenges such as terrorism, energy and food security, climate change and the international financial and economic crisis were unambiguously articulated at the appropriate fora. The issue of reform of institutions of global governance was brought to the fore of the international agenda. India's voice was heard with respect in the G-20 process, the G-8
plus G-5 Summit, and the Climate Change Conference in Copenhagen.
We can take justifiable pride in the contributions made by the overseas Indian community in all walks of life across the globe which have earned them high respect. The first meeting of the Prime Minister's Global Advisory Council of Overseas Indians was held this year. Government will work towards giving Indian citizens living abroad the opportunity to vote by the time of the next regular general elections. We are committed to the security and welfare of the Indian diaspora.
An Indian Community Welfare Fund has been established.
As part of the ambitious expansion of the country's nuclear energy programme, approval was accorded for the construction of additional Pressurised Heavy Water Reactors and sites for setting up Light Water Reactors. Following the availability of imported fuel as a result of the opening of international civil nuclear cooperation, commercial production has commenced in two units of the Rajasthan Atomic Power Project, and one more unit is expected to begin commercial production soon. New agreements for cooperation in the field of civil nuclear energy were concluded with Russia, Mongolia, Namibia, Argentina and the United Kingdom, while others are under negotiation.
The space programme continued to provide societal services to the Nation in the areas of tele-medicine, tele-education and village resource centres.
The Oceansat-2
satellite was successfully launched onboard the Polar Satellite Launch Vehicle. The flight test of the GSLV-D3 launch vehicle with indigenous cryogenic stage, and the launch of the Cartosat-2B, INSAT-3D and Resourcesat-2 satellites are planned in the near future. The GSLV- Mark III launch vehicle will be further developed and activities towards the Chandrayaan-2 Mission will be initiated.
Our country stands at a historic turning point. Never before were we so close as we are today to realizing our national aspirations as envisioned by our founding fathers and spelt out by Pandit Jawaharlal Nehru in this very hall on the midnight of 14th August 1947 :—
"The service of India means the service of the millions who suffer.
It means ending poverty and ignorance and disease and inequality of opportunity."
We have taken decisive strides towards reaching these goals. Still, much remains to be done. The road is long, but our journey is in progress. Let us march together with confidence to anew, bright future.
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65c43c1957bc567107068255 | reports | # Parliamentary Debates Official Report In The Sixty-Seventh Session Of The Rajya Sabha Commencing On The Llth February, \969Lthe 28Th Magha,
1890 *(Saka)*
## Rajya Sabha
Monday, the \lth February, l969/>/«? 28/*
Magha, 1890 *(Saka)*
The House met at thirty minutes past twelve of the clock, MR. CHAIRMAN in the Chair.
## President'S Address Laid On The Table
SECRETARY : Sir, I beg to lay on the Table a copy of the President's Address to both the Houses of Parliament assembled together on the 17th February, 1969.
(Text of the President's Address in Hindi)
3 Presidents Address
[RAJYA SABHA]
laid on the Table 4
7 President's Address
[RAJYA SABHA]
laid on the Table 8
[17 FEB. 1969]
laid on the Table 10
[17 FEB. 1969]
laid on the Table 12
[17 FEB. 1969]
laid on the Table 14
(Text of the President's Address in English)
Members of Parliament, it gives me great pleasure to welcome you to this joint session of the two Houses of Parliament. It is an appropriate occasion for Government to present a realistic appraisal of the year under review and to delineate the broad features of Government's policies and purposes in the coming year.
A year ago, we were just emerging from the worst period of economic set-back in the history of our Republic. The manner in which our people faced the difficulties with courage and fortitude is a matter for pride. Without their sacrifice and cooperation, their hard work, their basic good sense and patriotism, the plans and programmes of the Central and State Governments could not have borne fruit.
The milestones passed on the road to our been possible to relax restrictions on the movement of foodgrains and to expand the zones for particular cereals.
In Government's strategy of f developeconomic recovery can be easily identified. These are: a decisive upward turn ia agriculture, a recovery in a large segment of industry, the relative price stability and a striking improvement in the balance of payments.
The harvest of 1967-68 has been the tuning point in our agricultural production.
ment, the family planning programme continues to occupy pivotal importance. The programme has now been widely extended to the rural population covering even remote areas.
The striking improvement in agriculture Foodgrains reached a record figure of 95.6 million tonnes which was 6 million tonnes higher than the previous peak of l$64-65. Commercial crops like jute, cotton, oilseeds, tea, coffee and sugarcane alio did well. Despite the damage caused by drought and floods in several States, tbe overall during 1967-68 raised national income by 9.1 per cent over the previous year. Quick estimates show that the net national income for 1967-68 amounted to Rs. 16,665 crores
(at 1960-61 prices) as compared to Rs. 15,272 crores in 1966-67, recording an increase of Rs. 1,393 crores during the year. Though during the current year agricultural production will be at about the same level as in the previous year, the recovery in industry is expected to improve the national income.
production of foodgrains in 1968-69 is expected to be as good as in 1967-68. Our farmers are increasingly taking to scientific agriculture. They are also making massive investments in ground-water exploitation for irrigation and in purchase of agricultural machinery.
The high-yielding varieties fn industry the process of recovery has begun. In the past two years, the agriculturebased , industries faced shortages of raw materials.
With increased activity in programme will spread to 8.5 million hectares during 1968- I 69 and will be further extended next year. More intensive cropping patterns than prevailing at present are being adopted. An additional area of 6. J million hectares of gross cropping will be achieved in
1968-69.
Government are supporting the enthu agriculture and an increase in farm incomes, industries oriented towards agriculture have begun to recover. Fertilizers, pesticides, tractors, etc., are increasing output rapidly. Electricity generation and the output of electrical machinery is also increasing. In the consumer goods field, cotton textiles and vanaspati production has been rising. However, the demand for the products of some industries in the machine-building sector continues to be inadequate in relation to the capacity available. The crude index of industrial production (1960 : IOO) for the first nine months of 1968 stood at 159.3 which is 5.6 per cent higher than the level recorded during January—September 1967. On the basis of present trends, an increase of 5 to 6 per cent in the index seems likely during the year.
Growth in agriculture and industry is having a salutary effect ou the unemployment problem in the country. We have still a long way to go to offset the effete of the two drought years and to improve on the position, especially about unemployment amongst technologists which is causing serious concern. A modest start siasm of the farmer by providing sufficient fertilizers even by large-scale imports. Indigenous production is also building up with commissioning of new plants in Go rakhpur, Namrup and Kota. Next year, fertilizer projects at Kanpur, Durgapur, Cochin and Baroda are expected to come on stream. With the delicensing of tractor manufacture in the country, the production of tractors is expected to be stepped up. Meanwhile, Government have undertaken to meet the needs of the farmer by imports.
Large-scale credit is crucial to the program me. This is being provided by the co operative movement and the commercial banks under the guidance of the Reserve Bank. The national objective to eliminate reliance on food aid over the next two or three years is well within reach. A buffer stock of 3 million tonnes will be reached in the course of the coming months. 6.4 million tonnes of foodgrains have been procured out of the 1967-68 crops. Govern ment have provided large funds for the pre servation and storage of grains. It has M2RS/69—2
»
has been made with the programme for employment of qualified engineers in a selfemployment programme.
tained in indigenous ship-building and it is hoped that in the course of the year, work on the second shipyard at Cochin will be commenced.
The improvement in agricultural production has raised the problem of maintenance of reasonable prices for attract foreign tourists and, in particular, hotel accommodation of the right type at important tourist centres is being developed further. Substantial improvements are being effected in our international airports and other airports in the country.
agricultural produce to the farmer. Procurement prices have, by and large, been maintained at last year's remunerative levels through the effort of the Food Corporation of India. The improvement in industrial production has resulted in price stability. The index number of wholesale prices, which was 211 a year ago, now stands at
205.
The performance in the field of exports and in the drive for reduction in imports has been even more encouraging. Continuing import substitution and reduction of unduly large inventories have brought the import bill for the first nine months of 1968-69 to Rs. 1376.49 crores, that is, Rs. 107.72 crores less than for the same period last year. Our export earnings, on the other hand, amounted to Rs. 1019.04 crores, that is, about Rs. Il6.65 crores more than for the corresponding period of the last year. There has been striking progress in the export of engineering goods. The textile industry too has been able to raise its exports sizeably. We are also now on the way to becoming the world's largest exporter of polished gems.
Our industrial products, particularly steel, steel manufactures, electrical equipment, leather goods and some chemicals, have successfully met international competition and secured substantial gains in the difficult markets of industrial nations and also in the markets of several Asian and African countries. We are beginning to utilise our natural and industrial resources to pay for what we need from abroad. However, international commercial policies continue to inhibit the expansion of export earnings of developing countries.
Government are aware that transport, shipping and tourism are important and * jments in augmenting its resources on invisible account. The size of our merchant fleet is in the range of 2 million tonnes GRT with about 7 lakh tonnes on order. The fleet composition is being diversified taking into account the need for bulk carriage. Steady progress has been maininvestment both in the public and f Various schemes have been started to The demand for irrigation schemes and power schemes in the country is large. It is proposed to set up an All India Irrigation Commission to review the development of irrigation in the country and to report on the best programme of integrated development of surface and ground water resources for maximising agricultural production. Though in the last two decades the availability of power has gone up nearly sixfold, demand continues io outstrip the generating capacity in seme areas of the country. For better utilisation of the Capacity already created, Government are giving more attention to transmission and distribution schemes and the regional grids for integrated operation of the power systems in each region. Interregional tic lines are also under construction for utilising surplus power in one region in a neighbouring deficit region.
This will ultimately result in an all India grid. Rural electrification which is of direct benefit to the agriculturist for increasing his production, has been given a special place in the power programme.
The Planning Commission is finalising the Fourth Five-Year Plan which will begin its term next April. Our plans would only be indicative of the future without any attempt to shape the future to suit our needs and aspirations, unless they embodied our national will and determination to progressively bridge the gap between the needs of the people and the resources in sight. Government are determined to make every effort to mobilise our own resources of savings, enterprise and managerial ability. The new prosperity in the rural areas wiH have to be harnessed to promote further growth particularly among the smaller farmers and in the relatively backward regions. While encouraging a greater flow of genuine savings to sustaifl larger
private sectors, the situation will have to be utilised to strengthen the financial position of both the Centre and the States.
Government are conscious of the important role which our public sector has to play in the many-sided development of our economy. Consequently, the raising of the efficiency of this sector is engaging Government's close attention. The recommendations of the Administrative Reforms Commission made in their report on "Public Sector Undertakings" have been considered. Various decisions have been taken to delegate more powers to the management of these enterprises with the object of improving their efficiency and profitability. Steps have also been taken to mobilise managerial resources for these enterprises, including adoption of suitable policies of personnel and labour matters.
There is considerable uncertainty with regard to external assistance. The burden of servicing the external debt is mounting and amounts to 514 million dollars this year. The re-scheduling of debt payments of IOI million dollars provided by the Consortium countries and the International Bank for Reconstruction and Development is, therefore, welcome. While we hope tbat adequate external assistance will be forthcoming, we intend to pursue a policy of a judicious use of credits from abroad and to reduce progressively the dependence on foreign aid by increasing self-reliance.
It is a matter of some satisfaction tliat India's first atomic power station at Tarapur, in the State of Maharashtra, is expected to deliver 380 MW of electric power from July, 1969. India's first Uranium Mine and Mill at Jaduguda (Bihar) have been commissioned and the production of uranium concentrates has commenced. Work has commenced in Hyderabad on the setting up of facilities to process these concentrates into finished fuel elements required forouratomicpowerprogramme. Considerable progress has been made in the field of space research.
"Rohini"
and meteorological rockets, which have been completely designed and fabricated in India, were successfully tested in flight. India has entered the field of Satellite Communications. The first Indian Commercial Satellite Communications Earth Station is under construction at Arvi near Poona. This station is expected to become operational by the end of October, 1969.
Government are conscious that the problems of integrated economic development in the country require political stability. The elections to ihe Legislative Assemblies of Punjab, Uttar Pradesh, Bihar, West Bengal and Nagaland have been conducted by and large in a peaceful and orderly atmosphere. It is a matter cf satisfaction that the Chief Election Commissioner has found it necessary to order repoll or fresh poll in only 28 polling stations out o _over 1,10,000 polling stations in the five States in which an electorate of nearly 102 million was recently called upon to cast its Vote. However, disquieting reports have been received from certain areas that sections of citizens were subjected to pressures amounting to intimidation which prevented them from exercising their franchise. This matter is receiving Governmem's attention. Every political party should endeavour to ensure political stability which is essential for rapid social and economic development. In the meantime we hope that with the cooperation of all the political parties, stable governments will be formed after the elections which have just concluded. As defections from organised political parties contributed to political instability, a Committee was appointed to examine this problem in pursuance of a resolution passed by the Lok Sabha. The Committee has completed its work. Its recommendations wiH now be considered by Parliament.
Last year, I referred in my speech to certain disturbing trends in our national affairs.
Parochial, regional, caste and communal movements have caused tensions and violence in the country. The National Integration Council, consisting of representatives of the Central and Slate Governments, leaders of many opposition parties, and other leaders of public opinion, held a meeting in Srinagar in June, 1968 to consider problems of national integration, and in particular that of communal tensions.
The Council made a number cf specific recommendations on which action is being taken by the Central and State Governments.
The Criminal and Election Laws
(Amendment) Bill, 1968, introduced in pursuance of the recommendations of the
Council, is before Parliament. When enacted, it will grately strengthen the hands of the Government in curbing the evils of communalism. However, while legal and administrative measures are necessary, the fight against these fissiparous movements has to be carried to the broad masses of our people. The key to success lies in fostering the concept of Indian Nationalism and secularism in the minds and hearts of our people.
The country also faces the danger of violence from certain extremist political groups. The doctrines, propounded by these groups are clearly subversive of our Constitution and the rule of law, and detrimental to orderly government and progress. There is no place in a democratic society for groups which seek to change the social and political structure by aimed insurrection.
As the Hon'ble Members are aware, the Machinery for Joint Consultation and Compulsory Arbitration was set up on a voluntary basis in 1966 with the object of promoting harmonious relations between Government and their employees and the redressal of employees'grievances. Government have full faith that the Scheme of Joint Consultation and Compulsory Arbitration is the only answer to the problem of settlement of disputes with its employees consistent with the imperative need for the maintenance of discipline in the public services and uninterrupted operation of essential services. They accordingly propose to give the Scheme a statutory basis in order to place it on a firmer and sounder footing.
After years of patient deliberations, a formula was evolved last year for the reorganisation of Assam. A Constitution Amendment Bill for conferring necessary powers on Parliament to set up an autonomous State within the State of Assam is already before the House. After Parliament has approved this amendment and it is ratified by the State Legislature, as required under Ariticle 368, Government propose to bring forward detailed legislation to give effect to the scheme.
Travelling beyond the limits of our internal affairs, I should like to refer briefly to
external affairs. Government feel convinced of the essential soundness of the broad structure and principles of their foreign policy. In the world today, it is difficult to see any alternative to peaceful coexistence among all States and peaceful cooperation for the promotion of peace, economic well-being and stability in tbe world. Every State must ceaselessly strive for areas of agreement so that processes of detente can continue unimpeded even in the midst of difficulties and setbacks that may arise from time to time.
There is an all-round strengthening and improvement of India's relations with various nations of the world. It is our firm belief that the simulated distrust and suspicion of India assiduously spread by Pakistan, and the distorted image of our country which China projects through its ideological prism, wiH both succumb to the realities of the situation. Government have expressed more than once with frankness and sincerity their desire to have friendliest of relations with both our neighbours consistent with our sovereignty, territorial integrity and on the basis of absolute noninterference in each other's internal affairs.
Government's stand on Vietnam, which was always based on a realistic appraisal of the interplay of forces, has stood vindicated. Whatever the difficulties ahead, there must be firm resolve to overcome them through negotiations now in progress in Paris. The courageous people of Vietnam who have suffered so much should be able to fashion their own destiny without outside interference. The situation ic West Asia demands a most urgent solution of the continuing crisis in that part of tbe world. There is not much time to lose in implementing the Security Council Resolution of November 22, 1967. Government hope that the consultations now in progress between the USSR, the USA, Britain and France will lead to an early restoration of peace in the area.
The major aim of our policies remains the strengthening of relations and the promo-tion of international co-operation. This has been the purpose of the visits to foreign countries undertaken by me and the Prime Minister. I visited Nepal, the Soviet Union, Hungary and Yugoslavia last year. Apart from visits to Austral!;-., "New Zeal-
Government propose to bring before Parliament the following legislative measures during the current session:—
and, Malaysia and Singapore, the Prime i Minister visited Argentina, Brazil, Chile, Colombo, Guyana, Trinidad and Tobago, Uruguay and Venezuela.
The welcome
(a) Bills to replace the existing Ordi nances :
(/J The Limitation (Amendment)
Ordinance, 1968. (//) The Public Wakfs (Extension of Limitation) Amendment Ordinance,
1968.
(Hi) The Customs (Amendment) Ordiaccorded to me and the Prime Minister in all these countries testified to the regard in which India is held by these nations. The Prime Minister addressed the General Assembly of the United Nations and it is a matter of deep satisfaction that enunciation in her address of the basic principles of India's froeign policy evoked a heartwarming, widespread response. The Prime Minister also attended the nance, 1969.
(iv) The Payment of Bonus (Amend-
ment) Ordinance, 1969.
(b) New Bills:
Commonwealth Prime Ministers' Conference in London. It provided a welcome opportunity for exchange of views with the large number of Heads of States and Prime Ministers assembled there.
(0 Bill to provide Statutory Basis for the
We have been privileged to receive many
Machineiy of Joint Consultation and Compulsory Arbitration for
Central Government Employees.
Heads of State and Governments in our midst.
Most recently, Their Imperial
(tt) The Indian Council of Agricultural
Research BUI, 1969.
(Hi) The Essential Commodities (Amendment) Bill, 1969.
Majesties the Shahanshah Aryamehr and Shahbanu of Iran, and the Prime Ministers of Ceylon, Bulgaria and New Zealand were in India.
While Government and the entire country
(tv) The Tea (Amendment) Bill, 1969.
(v) The Prevention of Water Pollution
Bill, 1969.
(w) The Delhi Motor Vehicles Taxation (Amendment) Bill, 1969. (v/7) Bill to extend certain Central Labour Acts to
the State of Jammu & Kashmir.
I should now like to conclude this Address ardently desire peace and are dedicated to promoting peace, we have to be very vigilant in the matter of defence preparedness. Considerable progress has been made in reequipping and modernising our Armed Forces. Our fighting forces are in a good state of training and their morale is high. Some measures have been taken to improve the service conditions of our soldiers, sailors and airmen. Improvements have been effected in their pay scales and in their pensionary terms and the rates of certain allowances. The need for economy in defence expenditure has always been kept in view.
The first frigate built in the country, INS
Nilgiri, was launched recently. This is an important landmark in the history of the Indian Navy.
A survey of our internal and external affairs must inevitably include a reference to the legislative and other business which will come up before you.
The estimates of receipts and expenditure by recalling that this year we celebrate Gandhiji's birth centenary. Mary ideas, emotions and images rise to one's mind and the whole panorama of the history of our country unfolds itself. We are inheritors of a great heritage. Our country is rich in resources. Our people are skilled craftsmen. Our scientists and technologists are some of the best which any country could boast of. While we can argue with one another within the limits of reason and rationality about the best means and methods to be adopted for reconstructing our society we can all unite in a purposive effort to build the India of Gandhiji's dreams and to endeavour to wipe every tear from every eye. Only thus shall we be able to serve the common people and fulfil the pledges of the founding fathers of this great Republic. I wish your labours all success.
of the Government of India for the next financial year 1969-70 will be presented to you for consideration shortly. |
65c43c1957bc567107068259 | reports |
## The
# Parliamentary Debates
## Official Report
# In The Fifty-Fifth Session Of The Rajya Sabha
Commencing on the 14th February, 1966/the 25th Magna, 1887(Saka SHRI BHUPESH GUPTA:
We
## Rajya Sabha
want the Government, this caJlcus
.Monday, the 14th February, 1966/th« 25th Government, to make a statement, Sir. It is no use saying . . .
Magha, 1887 (Saka)
(Interruptions)
The House met at ten minutes past twelve of the clock, MR. CHAIRMAN in the Chair.
MR.
CHAIRMAN:
Order, order.
Secretary.
## President'S Address Laid On The
SECRETARY: Sir, I beg to lay on the
## Table
MR. CHAIRMAN: Secretary will lay the Table a copy of the President's Address to both the Houses of Parliament assembled together on the 14th February, 1966.
President's Address on the Table.
(Text *of the President's Address in* English)
SHRI BHUPESH GUPTA (West Bengal):
Members of Parliament, Once again, I
Sir, before you proceed with that, the Government should make a statement on the food situation in Kerala. They have created a hell there. Therefore I feel ....
MR.
CHAIRMAN:
I
will proceed according to the Order Paper.
SHRI BHUPESH GUPTA: That is all welcome you to a new session. A month ago, the nation lost its Prime Minister, Lal Bahadur Shastri. He was truly a man of the people who never lost the common touch. He combined firmness of purpose with flexibility of approach. He was a man of deep humility, gentle in his ways, soft of speech and devoted to peace. In hours of crisis, he was calm,
courageous and unflinching.
2. While deeply distressed by the turn of right. But I must mention it on the very first day what they are doing in Kerala. Repression and no food—that is their line of action. Since the Kerala Assembly has not been there, let them make a statement here.
MR. CHAIRMAN: Mr. Bhupesh Gupta, events which forced us into an armed conflict with Pakistan, he gave an inspiring lead to the nation. Our brave and gallant armed forces have written a new chapter of giory in our history. We honour our heroas, comfort the bereaved and lament the low of precious lives. The people «f will you please sit down? I will proceed according to tha Older Paper.
mankind, the people living in poverty and ignorance would have a new hope of
achievement in their life time.
India have once again demonstrated their unity and solidarity. Communal harmony was preserved throughout the country. Labour showed an exemplary spirit.
6. One by one, countries in Africa and
3. When the fighting ceased, Lal Bahadur Shastri bent his energies towards the Asia, which were under colonial domination, have achieved independence and taken their rightful place in the comity of nations. It is unfortunate that some countries are still under Portuguese domination and we sympathise with those who are fighting for their independence. In South Africa, we support the struggle against apartheid.
7. One of the most unwelcome deestablishment of good neighbourly relations with Pakistan. Before his sudden untimely death, he had the satisfaction of signing the Tashkent Declaration with President Ayub Khan of Pakistan in the presence of Mr. Kosygin, Chairman cf the Council of Ministers o,f the U.S.S.R, whose good offices and friendly approach, more than anything else, made the agreement possible. It was Lal Bahadur Shastri's hope and belief that the Tashkent Declaration would lay the foundation for an enduring peace and friendship between India and Pakistan. More even than the letter, it is the spirit of the Tashkent Declaration that is important. Both sides have to fulfil it with faith and vision.
velopments which has taken place is the Unilateral Declaration of independence by Rhodesia and the seizing of power by a racial minority which is seeking to establish its domination over the people of Rhodesia. We have .cut of all relations with Rhodesia, diplomatic and economic, and will continue to give our full support to the people of Rhodesia in setting up a tru'y democratic Government.
4. We are fortunate in having very friendly
8. We are deeply concerned about the present situation in Vietnam. Any effort to resolve this conflict by peaceful methods will receive our support.
relations with almost all countries in the world. We are particularly happy that the friendly ties and understanding with our neighbours, have been further strengthened.
Unfortunately, our relations with the People's Republic of China still continue to be strained. The country has to be vigilant and strong.
9. Last year, I
visited Yugoslavia, Czechoslovakia, Rumania and Ethio
5. Our Government will continue to work pia.
In all these countries, I
was warmly received and I found evidence of deep friendship and goodwill to wards India and her people.
The Vice-President visited Kuwait, Saudi Arabia, Jordan, Turkey and Greece, where he was received with great cordiality and friendliness.
The same friendliness was displayed by the Governments and peoples of Nepal, the Soviet Union, the United Arab Republic, Canada, Great Britain, Yugoslavia and Burma during the for peace in the world. Peace is essential for our own development and progress and for the well-being of all peoples. To this end, we shall strive to strengthen international cooperation, based on the principles of peaceful co-existence, nton-interfer-ence in the internal affairs of others, non-alignment which implies freedom to judge issues on their merits and, above all, the abandonment of the use of force to settle disputes. If the resources of prosperous nations, which are now spent ori armaments, could be diverted to the service cf visits which the late Prime Minister Shastri paid to those countries.
We have also had the pleasure of wel coming to our country the King and Queen of Nepal, the Secretary-Gene ral of the United Nations, the Primt
State and man and man. Statutory rationing has been introduced in Calcutta, Madras, Coimbatore and Delhi. It will be introduced in a number of other cities in the coming months.
Ministers of Afghanistan Czechoslovakia, Laos and Uganda and many other high dignitaries from all over the world. Many Heads of Governments and other high personages came to Delhi last month to pay their homage to Lal Bahadur Shastri and we were greatly touched by their presence.
13. The Government is aware of the distress
.caused in Kerala where the
10. The year 1965-66 is the last year of our Third Five-Year Plan.
The availability of rice now admits of a daily ration of 140 grams only per head. This is suplemented by an equal quantity of wheat. There has been considerable discontent and agitation on account of the reduced growth of national income, which was slow in the first two years of the Plan, was speeded up with the rise of 4- 5
per cent, in the third year and 7-3
per cent, in the fourth year.
Ordi narily, it should have been possible availability of rice. Steps are being taken to increase the supply of rice by imports from abroad and by additional procurement to maintain a comparable rate of growth during the current year.
Un fortunately, a number of adverse internally. We trust that States with a surplus will co-operate fully in making more rice available for the people of Kerala.
factors have slowed down production.
The unprecedented drought which we
14. The present difficulties only reexperienced, the armed conflict in which the country was involved and the suspension of promised economic aid from outside have reduced the rate of growth.
11.
On account of the failure of monsoons, the production of food emphasize the need to concert and implement measures to increase the production of foodgrains in the shortest possible time. Only by the application of modern science and technology can agricultural production increase in an adequate measure in the new agricultural strategy of our Government, the greatest emphasise has been placed on the use of improved varieties of seeds which are grains in 1965-66 is likely to be only 76 to 77 million tonnes, as against 88 million tonnes in the previous year.
The shortfall in the availability of particularly responsive to the application of fertilizers. These new varieties should cover 4:5 million acres of land in 1966-67, and over 32 million acres by the end of the Fourth Plan.
foodgrains, as well as of fodder and water, has created serious scarcity conditions in many States, particular
15. The internal production of fer ly in Maharashtra, Gujarat, Mysore, tilizers is being stepped up.
The Madhya Pradesh, Rajasthan and Trombay fertilizer plant has already Andhra Pradesh.
The State Govern been commissioned.
Neyvelli is ex ments and the Centre have already pected to go into production in the taken steps to provide relief to the people affected by the scarcity.
We near future. In 1967, four plants will be commissioned at Namrup, Gor take the opportunity to acknowledge akhpur, Baroda and Vishakhapatnam.
the assistance readily given by inter national organisations and the Gov Recently certain decisions have been
1 taken to attract private capital also, *\* both foreign and indigenous, for investment in this ernments and people of various friend ly countries.
In particular, we would field. Till such time as domestic production is
like to thank the President of the adequate, the Government proposes to
United States and his administration import for their generous help at this time rf need.
12. Measures have to be taken to isure equitable distribution of the
•ailable supplies between State and the requisite quantities of fertilizers for the agricultural programme.
16. Irrigation projects are being speeded up.
It is expected that through major and medium irrigation projects, water for an additional
3
million acres will become available during the coming financial year.
Minor irrigation projects are also receiving attention.
About
7
lakh be made in the Fourth Plan for the expansion of industries in the public sector. Special mention has to be made in this context of the steel plant to be set up at Bokaro with Soviet collaboration and of the enterprises intended to put atomic energy to peaceful constructive uses. The Atomic Energy Commission and indeed the world of science has suffered and an irreparable loss in the tragic death of Dr. H. J. Bhabha. The work which he had started must continue with unabated vigour.
pumping sets are expected to be ener gised during the Fourth Plan.
Con
20. The investment which we make in the siderable emphasis will be laid on rural electrification.
public sector has to give adequate returns. Our Government proposes to pay special attention to the efficient management of public sector enterprises.
17. Finance will be required by the
21. Industries in the private sector have also farmer to make greater use of fertilizers and of the water from our irrigation projects. Steps are being taken to ensure that credit is made available to the farmer quickly and at relatively low rates of interest.
18. The high priority we are giving to to expand their output and capacity. While certain curbs and controls are inevitable in a planned economy and in the context of scarcity, conditions have to be created in-which private initiative and private savings can be harnessed to make the maximum possible contribution to-growth and development within the framework of the Fourth Five-Year Plan.
22. The success we have achieved in agriculture is necessary not merely to ensure self-sufficiency in foodgrains, but also to enable us to increase our exports of agricultural and industrial products. Exports showed a marked increase during the first three years of the Third Five-Year Plan. In the last two years, however, they have remained relatively stagnant. There has been an impressive rise in our exports to East European .countries in general and to the U.S.S.R, in particular. However, our balance of payments position with the rest of the world has continued to be under strain. While external assistance has been making a welcome contribution to the country's development and while we must thank the many countries and international institutions from whom we receive aid, we i must intensify our efforts to increase exports and to make the country self-reliant as quickly as possible.
improving the health of our people and raising the average expectation of life gives us cause for satisfaction. The number of doctors available is now nearly 90,000 as against 70,000 in
1960-61. Hospital beds have increased by nearly a third over the same period. Mortality due to malaria has practically been eradicated over the last decade. Side by side with the fall in the death rate, we must bring about a reduction in the birth rate. If our population goes on increasing at the rate of about a million a month, it will be difficult to raise our standards of living and to end our chronic dependence on import! to feed our people.
Family planning programmes have to be intensifier and brought within the reach of a1
19. A number of public sector plants have started production in the recent past. Fresh capacity has been added in the machine building sector, in oil refineries and in the production of alloy steels. Adequate provision will
23. The number of school-going children every effort will be made to make good the shortfall in the remaining years of the Fourth Five-Year Plan.
28. Members of Parliament, a new Government has come into power, led by one you all know and who belongs to the younger generation of freedom fighters.
The at the primary stage has gone up from a little above 40 per cent, at the commencement of our first Plan to nearly 80 per cent, this year. The percentage at higher levels has nearly trebled over the same period. The annual outturn from our Technical Training Institutions has doubled during the Third Plan.
24. Prices continued to rise during the reorganisation of Departments and Ministries reflects the priorities to which I have just referred.
29. Thirty-eight Bills are already before you for your consideration. Amongst the new Bills which the Government proposes to introduce are: -
year, although the rate of increase was not as high as in the previous year. In view of the set-back in agricultural production this year, steps have to be taken to keep inflationary pressures in check. Curtailment of public expenditure has an important role in this.
(1) Rice Milling Industry (Regulation)
25. Our Government is trying to prune
Amendment Bill. 1966;
(2) The Crop Insurance Bill 1966;
non-Plan expenditure and to concentrate our resources on development.
There are, however, certain areas where higher
(3) The Indian Tariff (Amendment) Bill
to replace the Ordinance;
(4) The
Essential
Commodities
(Amendment) Bill 1966;
(5) The Contract Labour (Regulation
and Abolition) Bill1 1966;
(6) The
Forward
Contracts
(Re-
expenditure is unavoidable. We have to provide for the rehabilitation of people affected by the recent conflict. We have to undertake relief measures in the droughtstricken areas. With the increase in recent months of tension on our Northern borders, we cannot but provide for a higher outlay on defence. In the circumstances obtaining, a tighter financial discipline, internal and external, is unavoidable.
gulation) Amendment Bill 1966; and
26. Monetary and financial curbs,
(7) The Armed Forces (Special' Powers
Continuance) Bill 1966; and
(8) The Import and Export Control
(Amendment) Bill 1966;
30. A statement of the estimated receipts however necessary they may be in the short run, do not provide an answer to the basic problems of our economy. To fight poverty, we must have higher production. Towards this end, both the public sector and the private sector have important tasks ahead of them.
27. The preparation of the Fourth and expenditure of the Government of India for the financial year 1966-67 will be laid before you.
31. Members of Parliament, I wish you
""Ian has unfortunately been delayed, to certain unforeseen develop- ts. The
Plan for the year 67 is ready. The State Govern- are mobilising resources to im- nt it. Although the total out- the 1966- 67 Plan will be lower hat we had earlier hoped for, success in your labours. Our objec'ives are known and our goals are clear. We have to strive for a better life for our people at home aud to assist in promoting peace an operation in the world. Towards these objectives, you have to guide the nation with courage and wisdom and a spirit of co-operative endeavour.
(.Text of the President's Address in Hindi)
|
ee878aab-f5a0-5a39-bb08-3bb0c2017854 | court_cases | Custom, Excise & Service Tax TribunalHishine Inks Pvt Ltd vs Valsad on 2 November, 20181|Page E/10314/2016-DB
In The Customs, Excise & Service Tax Appellate Tribunal
West Zonal Bench At Ahmedabad
Appeal No. E/10314/2016-DB
[Arising out of OIO-VLD-EXCUS-000-COM-0009-15-16 dated 30/12/2015 passed by the Commissioner of
Central Excise, Customs and Service Tax-Valsad]
M/s. Hishine Inks Pvt Ltd Appellant
Vs
C.C.E. & S.T -Valsad RespondentRepresented by:For Appellant: Shri.Willingdon Christian (Advocate)
For Respondent: Shri. L. Patra(A.R.)
CORAM:HON'BLE MR. RAMESH NAIR, MEMBER (JUDICIAL)
HON'BLE MR. RAJU, MEMBER (TECHNICAL)
Date of Hearing: 01.10.2018
Date of Decision:02.11.2018Final Order No. A / 12547 /2018Per: Ramesh Nair
Brief facts of the case are that the appellant were sanctioned rebate
claims Vide 32 orders in original for total amount of Rs. 1,48,53,400/- in
respect of Excise duty paid on indigenous raw-material namely, Dyes,
Solvent, and Packaging material used in the manufacture of export goods.The rebate claim was sanctioned under Rule 18 read with Notification No.
21/2004-CE (NT) dated 6.9.2004. Consequently, show cause notice dated
09.05.2014 came to be issued proposing to recover the aforesaid rebate
amount underSection 11Aof the Central Excise Act, 1944, on the ground
that rebate of duty paid on materials/inputs used in the manufacture of
resultant export products under advance licence is not allowable /admissible
as per Condition No. (viii) of the Customs Notification No.. 96/2009-Cus. By2|Page E/10314/2016-DB
the impugned order, Ld. Commissioner has confirmed the demand for
recovery of rebate along with interest under Section 11AB/11AA and
imposed equal amount of penalty under Section 11AC. Being aggrieved by
the said impugned order appellant filed the present appeal.2. Shri. Willingdon Christian, Ld. Counsel appearing on behalf of the
appellant submits that firstly, the subject Condition No.(viii) of the said
Customs Notification No. 96/2009-Cus is not applicable to the appellant's
case, as the appellant had not availed export rebate in respect of materials
which they had imported duty free under the Notification No. 96/2009-Cus.
He further submits that the subject Notification No. 96/2009-Cus is only for
the sole purpose for allowing the benefit of exemption from payment of
Customs duty on imports against advance authorization. The benefit of this
Notification was availed by the appellant in respect of two imported raw
materials, namely, Resin and Additives. Even if, the alleged contravention of
Condition No.(viii) of the Notification No. 96/2009-Cus is to be held in
favour of the Revenue, then also the legal remedy lies is to disallowing or
take back such benefit of exemption from payment of Customs duty availed
in respect of the said two imported raw materials. He submits the rebate
sanctioned under Rule 18 of Central Excise Rules, 2002 and Central Excise
Notification No. 21/2004-CE(NT) issued was under independent provision for
rebate which does not carry any condition to the effect that any violation of
Notification No. 96/2009-Cus is made then rebate will not be granted,
therefore, importing the contravention of different Notification No. 96/2009-
Cus for disallowing the rebate claim under Rule 18 is without authority of
law. He submits that the sanction of rebate is in respect of three raw
materials was on the basis of valid permission granted by the jurisdictional
Deputy Commissioner who after verifying factual position of the nature of
raw material, use in the finished goods and input output ratio granted the3|Page E/10314/2016-DB
permission and on that basis rebate claim was sanctioned. He submits that
the permission order holds the field even today, as it has not been
challenged before nor set aside by, in appropriate Appellate Authority.
Consequently, in view of the said permission order having attained finality,
the impugned order cannot sustain being illegal, without jurisdiction and
beyond authority of law. He further submits that the whole exercise in this
case is Revenue neutral. Even by the stretch of imagination, the appellant is
hold to be not entitled to avail export rebate, they would be otherwise
entitled to claim the refund of the Excise duty paid on such indigenously
procured raw-materials in terms of Rule 5 of Cenvate Credit Rules, 2004. He
further submits that the show cause notice dated 09.05.2014 is partly time
barred under Section 11A. He also submits that as against the total 32
orders in original for granting rebate, the department has so far filed appeals
against only 15 orders. He invited our attention to order in appeal No. DMN-
EXCUS-000-APP-2010 to 224-13-14 dated 01.11.2013 reversing the
sanction of 15 rebate claims. For the remaining 17 rebate claims, the
Department has not filed any appeals against the orders in original
sanctioning the 17 rebate claims. Therefore, in matter of such 17 rebate
claims for recovery of rebate claims, the impugned order is not sustainable
in law as it amounts to review of orders of Deputy Commissioner by the
Commissioner, which is not permissible in law. In respect of this above
submissions, he placed reliance on the following judgments.Spentex Industries Ltd. Vs. CCE-2015-TIOL-239-SCArvind Mills Ltd. Vs. CCE-2008(240) ELT 613 (T)
Mardia Chemicals Ltd. Vs. CCE-2006(199) ELT 110 (T)
National Tools (Export) Vs. UOI-2017 (348) ELT 638 (Raj.)
Hi Speed Offsets Vs. CCE-2014 (304) ELT 3 (Del)4|Page E/10314/2016-DB
Rajguru Enterprises Pvt. Ltd. Vs. CC (Export)-2011 (266) ELT 286
(Export)
Bhagwati Gases Ltd. Vs. CCe-2008 (226) ELT 478 (T)
Coastal Gases & Chemicasl Pvt Ltd. Vs. CCE-1988(33) ELT 437 (T)
CCE Vs. Maharashtra State Bureau of Test Book Production &
Curriculum Research-2015 (39) STR 235 (T)
Wimco Limited Vs. CCE1986 (26) ELT 877 (T)
Zenith Spinners Vs. UOI-2015(326) ELT 97 (Guj.)CCE Vs. Ineos ABS Limited-2010 (254) ELT 628 (Guj.), 2011
(267) ELT A155 (SC).3. Shri. L. Patra, Ld. Assistant Commissioner (AR) appearing on behalf of
the Revenue reiterates the findings of the impugned order.4. We have carefully considered the submissions made by both the sides
and perused the records, we find that in the facts of the present case the
adjudicating authority has passed recovery order of sanctioned rebate claim
which were sanctioned under Rule 18 read with Notification No. 21/2004-CE
(NT). The ground for recovery of rebate claim is that the appellant have
violated the conditions of (Viii) Customs Notification No. 96/2009-Cus. In
ordered to understand whether there is any contravention of the
Notifications and if yes, whether said contraventions will affect the eligibility
of rebate to the appellant, we reproduced the Rule 18.18. Rebate of duty.-"Where any goods are exported, the Central Government may, by
notification, grant rebate of duty paid on such excisable goods or duty paid
on materials used in the manufacture or processing of such goods and the
rebate shall be subject to such conditions or limitations, if any, and
fulfillment of such procedure, as may be specified in the notification.Explanation. - For the purposes of this rule, "export", with its
grammatical variations and cognate expressions, means taking goods out of
India to a place outside India and includes shipment of goods as provision or
stores for use on board a ship proceeding to a foreign port or supplied to a
foreign going aircraf"5|Page E/10314/2016-DB
Notification No. 21/2004-CE (NT) dated 6.9.2004 ,
"Rebate of duty on excisable goods used in manufacture/ processing of
export goods -- Procedure -- Notification No. 41/2001-C.E. (N.T.)
superseded
In exercise of the powers conferred by of rule 18 of the Central Excise
Rules, 2002 and in supersession of the Ministry of Finance, Department of
Revenue, notification No. 41/2001-Central Excise (N.T.), dated the 26th
June, 2001 [G.S.R. 470(E) dated the 26th June, 2001], the Central
Government hereby, directs that rebate of whole of the duty paid on
excisable goods (hereinafter referred to as „materials‟) used in the
manufacture or processing of export goods shall, on their exportation out
of India, to any country except Nepal and Bhutan, be paid subject to the
conditions and the procedure specified hereinafter :-(1)Filing of declaration. - The manufacturer or processor shall file a
declaration with the Assistant Commissioner of Central Excise or the
Deputy Commissioner of Central Excise having jurisdiction over the
factory of manufacture describing the finished goods proposed to be
manufactured or processed along with their rate of duty leviable and
manufacturing/processing formula with particular reference to quantity or
proportion in which the materials are actually used as well as the quality.The declaration shall also contain the tariff classification, rate of duty paid
or payable on the materials so used, both in words and figures, in relation
to the finished goods to be exported.(2)Verification of Input-output ratio. - The Assistant Commissioner of
Central Excise or the Deputy Commissioner of Central Excise shall verify
the correctness of the ratio of input and output mentioned in the
declaration filed before commencement of export of such goods, if
necessary, by calling for samples of finished goods or by inspecting such
goods in the factory of manufacture or process. If, after such verification,
the Assistant Commissioner of Central Excise or the Deputy
Commissioner of Central Excise is also satisfied that there is no likelihood
of evasion of duty, he may grant permission to the applicant for
manufacture or processing and export of finished goods.
(3)Procurement of material. - The manufacturer or processor shall
obtain the materials to be utilised in the manufacture of the finished goods
intended for export directly from the registered factory in which such
goods are produced, accompanied by an invoice under rule 11 of the
Central Excise Rules, 2002 :Provided that the manufacturer or processor may procure materials from
dealers registered for the purposes of the CENVAT Credit Rules, 2002
under invoices issued by such dealers.(4)Removal of materials or partially processed material for
processing. - The Assistant Commissioner of Central Excise or the
Deputy Commissioner of Central Excise may permit a manufacturer to
remove the materials as such or after the said materials have been
partially processed during the course of manufacture or processing of
finished goods to a place outside the factory -6|Page E/10314/2016-DB
(a) for the purposes of test, repairs, refining, reconditioning or carryingout any other operation necessary for the manufacture of the finished
goods and return the same to his factory without payment of duty for
further use in the manufacture of finished goods or remove the same
without payment of duty in bond for export, provided that the waste, if any,
arising in the course of such operation is also returned to the said factory
of the manufacture or process; or(b) for the purpose of manufacture of intermediate products necessary
for the manufacture or processing of finished goods and return the said
intermediate products to his factory for further use in the manufacture or
process of finished goods without payment of duty or remove the same,
without payment of duty for export, provided that the waste, if any, arising
in the course of such operation is also returned to the factory of
manufacturer or processor;(c) any waste arising from the processing of materials may be
removed on payment of duty as if such waste is manufactured or
processed in the factory of the manufacturer or processor.(5)Procedure for export. - The goods shall be exported on the
application in Form A.R.E. 2 specified in the Annexure to this notification
and the procedures specified in Ministry of Finance (Department of
Revenue) notification No.19/2004-Central Excise (N.T.), dated the 6th
September, 2004 or in notification No. 42/2001-Central Excise (N.T.),
dated the 26th June, 2001 shall be followed.(6)Presentation of claim of rebate. - The claim for rebate of duty paid
on materials used in the manufacture or processing of goods shall be
lodged only with the Assistant Commissioner of Central Excise or Deputy
Commissioner of Central Excise having jurisdiction of the place approved
for manufacture or processing of such export goods.Explanation. - "duty" means for the purposes of this notification, duties of
excise collected under the following enactment, namely :-(a) the Central Excise Act, 1944 (1 of 1944);
(b) the Additional Duties of Excise (Goods of Special Importance) Act,
1957 (58 of 1957);
(c) the Additional Duties of Excise (Textiles and Textile Articles) Act,
1978 (40 of 1978);
(d) the National Calamity Contingent duty leviable under section 136 oftheFinance Act, 2001(14 of 2001), as amended bySection 169of the
Finance Act, 2003 (32 of 2003) and further amended bySection 3of the
Finance Act, 2004 (13 of 2004);(e) special excise duty collected under aFinance Act;(f) additional duty of excise as levied undersection 157of the
Finance Act, 2003 (32 of 2003);(g) Education Cess on excisable goods as levied under clause 81 read
with clause 83 of the Finance (No. 2) Bill, 2004.7|Page E/10314/2016-DB
Annexure
ARE 2 No.______________Original (White)/Duplicate (Buff)/Triplicate (Pink)
Quadruplicate (Green)/Quintuplicate (Blue)
Form A.R.E. 2
Combined application for removal of goods for export under claim for
rebate of duty paid on excisable materials used in the manufacture and
packing of such goods and removal of dutiable excisable goods for export
under claim for rebate of finished stage Central Excise Duty or under bond
without payment of finished stage Central Excise Duty leviable on export
goods.To
The Superintendent of Central Excise,
(Address)
___________________ (full postal address)
Particulars of the Assistant Commissioner of Central Excise or the Deputy
Commissioner of Central Excise from whom rebate shall be claimed/with
whom bond is executed and his complete postal address
__________________. 1.I/We ______________ of ________________ propose to export the under
mentioned goods (details of which are given in Table 1 below) to
____________________ (country of destination) by *air/sea/land/post
parcel* under claim for rebate of duty paid on excisable materials used in
the manufacture and packing of such goods. 2.
*The finished goods being exported are not dutiable. 3.
or
We intended to claim the rebate of Central Excise Duty paid on clearances
of goods for export under notification No. 19/2004-Central Excise (N.T.),
dated the 6th September, 2004 issued under Rule 18 of Central Excise
Rules, 2002.or
The export goods are intended to be cleared without payment of Central
Excise Duty under notification No. 42/2001-Central Excise (N.T.), dated
the 26th June, 2001 issued under Rule 19 of Central Excise (No. 2) Rules,
2001.TABLE 1
8|Page E/10314/2016-DB
(Details of goods to be exported)
S1. Descrip Marks Gro Gross Descri Val Finished Invoi Bond Amou Rem
No. tion and ss Weig ption -ue Stage ce /under nt of arks
Of pack Nos. Wei ht of Central No. taking Rebat
ages No.pac ght And finish Excise and execut e
k quan ed duty date ed claime
ages tity goods Under d
of rule 19 under
good (if any) Rules 18Rate Amt
(1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (11) (12) (13)
*Strike out portion not applicable**Quantity of goods to be furnished in units of sale where it is different
than weight.#Write NA where exports are under bond/letter of undertaking in terms of
Rule 19 or where goods are not chargeable to duty.
TABLE 2
Details of duty paid on excisable Materials and Packing materials used in
manufacture of export goods for which rebate under notification
_________ dated _____ is being claimed
S1. Nam Cent Uni Qty. Na Inv Assessa Rate Dut Total Rebate R
No e/des ral t used me oic ble of y Wastag admissi e
. - Exci of e Value/ Centr Am es ble m
cripti se Su No Unit al t. under ar
on of Tarif ppl . (Rs.) Excis per rule 18 ks
mate f ier an e duty unit (Rs.)
rials/ Sub- d (Rs)
packi head Va
ng ing lue
with /
techn Un
ical it
speci (R
ficati s.)
on/
Quan
tity
Re Irr
co ec
ver ov
abl er
e ab
le
(1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (11) (12) (13) (14)9|Page E/10314/2016-DB
Declaration :(a) We hereby certify that we have not availed facility of CENVAT
credit under CENVAT Credit Rules, 2002.(b) We hereby declare that the export is not in discharge of export
obligation under a Value based Advance License issued prior to 31-3-95.(c) We hereby declare that the materials on which input stage rebate
in claimed are not sought to be imported under a Quantity Based Advance
License issued prior to 31-3-95.(d) We further declare that we shall not claim any Drawback on export
of the consignment covered under this application.(e) I/We hereby declare that the above particulars are true and
correctly stated.(f) We have been granted permission by Assistant Commissioner of
Central Excise or Deputy Commissioner of Central Excise Vide C.No.
__________ date __________ for working under Notification No. 21/2004-Central Excise (N.T.), dated the 6th September, 2004.
Time of Removal __________________
Signature of owner or his authorised agent with date
Name in Block Letters & Designation
SEAL
Note 1 : The A.R.E. 2 should be submitted by the manufacturer at least 24
hours before intended removal of goods for export, to the Superintendent
of Central Excise.Note 2 : A running serial no. of the factory starting with one in every
financial year should be allotted to every A.R.E. 2.
FOR DEPARTMENT USE
PART A
Certification by the Central Excise Officer
Certified that 1.*duty has been paid on the goods described above or duty is payable as
recorded at entry number___ in Daily Stock Account.
or
*the owner has entered into B-1 bond No ____________ /given an
Undertaking ______under Rule 19 of Central Excise Rules, 2002 with the
____________________________ or *the finished goods being exported
are not dutiable.10 | P a g e E/10314/2016-DB
Certified that I have opened and examined the packages No.
___________________ and found that the particulars stated and the
description of goods given overleaf read with the invoice and the packing
list (if any) correct *[and that all the packages have been stuffed in the
container No. _______________ with Marks ________________]*and the
same has been sealed with Central Excise Seal/*One Time Seal (OST)
No. ________________ 2.I have verified with the records, the declaration of the manufacture given
at Sl. No. 3 overleaf regarding non-availment of credit under CENVAT
Credit Rules, 2002 and found it to be true. 3.Certified that I have drawn three representative samples from the
consignment and have handed over two sets thereof duty sealed to the
manufacturer/his authorised representative (wherever feasible). 4.
Certified that the material consumption as indicated in Table 2 overleaf are
in accordance with the declaration No. ________ filed by ________ on
__________ 5.Place : __________________
Date : __________________
Signature Signature
(Name in Block (Name in Block
Letters) Letters)
Superintendent of Inspector of Central
Central Excise Excise
*Strike out inapplicable portionsNote 3 : The details given in Table 2 may be verified by the
Superintendent of Central Excise subsequent to clearances. For this
purpose, a detailed verification report may be submitted by the
Superintendent to the Assistant/Deputy Commissioner of Central Excise
along with Triplicate copy of A.R.E. - 2.Note 4 : The original, duplicate and Quintuplicate shall be returned to the
manufacturer for presenting to the Customs Officer.
PART B
Certification by the Officer of Customs
Certified that I have examined the consignment described overleaf and the
seals on the packages were found intact and I have satisfied myself that
particulars of the consignment are as specified overleaf except for the
shortages mentioned below : 1.___________________________________________________________
_____
Certified that the exports are not under Duty Drawback Scheme. It is
further certified that exports are not in discharge of export obligation under
Value Based Advance License or a Quantity Based Advance License
issued before 31-3-95. 2.11 | P a g e E/10314/2016-DB
Certified that all copies of Shipping Bill/Bill of export contain endorsement
of A.R.E. 2 No. in the space provided for indicating ARE 1. 3.
Certified that the consignment was shipped under my supervision under
*Shipping Bill No./Bill of Export No. ____________ dated
_______________ which left for _________________ on
_________________ which passed the frontier on ____________ 4.
Duplicate copy of A.R.E. 2 Forwarded to Assistant/Deputy Commissioner
of Central Excise ............. on ...............
Place :Date :Signature
(Name and designation of the Customs Officer in Block letters)
(Seal)
Note 5 : The customs shall send the duplicate to the address given at Sl.No. 1 overleaf and handover original and quintuplicate to the exporter.
PART C*
Rebate Sanction Order Under rule 18(1)
(On Original, Duplicate and Triplicate)
Refund Order No. ______________ dated ______________ Rebate of
Rs. ___________ (Rupees _____________ sanctioned vide cheque No.
___________ dated ____________
Place ______________
Date ______________
Assistant/Deputy Commissioner of Central Excise
PART D
Rebate Sanction Order under rule 18(2)
(On Original, Duplicate and Triplicate )
Refund Order No. _______________ dated ______________________
Rebate of Rs. ____________________ (Rupees
________________________________ sanctioned vide cheque No.
___________________ dated __________________
Place __________________
Date _______________
Assistant/Deputy Commissioner of Central Excise
Strike out inapplicable portions".12 | P a g e E/10314/2016-DB
Notification No. 96/2009-Cus dated 11.9.2009 as under:-"Advance authorisation -- Exemption to imports thereunder
In exercise of the powers conferred by sub-section (1) ofsection 25of
the Customs Act, 1962 (52 of 1962), the Central Government, being
satisfied that it is necessary in the public interest so to do, hereby
exempts materials imported into India against an Advance
Authorisation issued in terms of paragraph 4.1.3 of the Foreign Trade
Policy (hereinafter referred to as the said authorisation) from the whole
of the duty of customs leviable thereon which is specified in theFirst
Schedule to the Customs Tariff Act, 1975(51 of 1975) and from the
whole of the additional duty, safeguard duty and anti-dumping duty
leviable thereon, respectively, undersections 3, 8B and 9A of the saidCustoms Tariff Act, subject to the following conditions, namely :-(i) that the said authorisation is produced before the proper officer
of customs at the time of clearance for debit;(ii) that the said authorisation bears,-(a) the name and address of the importer and the supporting
manufacturer in cases where the authorisation has been issued to a
merchant exporter; and(b) the shipping bill number(s) and date(s) and description, quantity
and value of exports of the resultant product in cases where import
takes place after fulfilment of export obligation; or(c) the description and other specifications where applicable of the
imported materials and the description, quantity and value of exports of
the resultant product in cases where import takes place before
fulfilment of export obligation;(iii) that the materials imported correspond to the description and
other specifications where applicable mentioned in the authorisation
and the value and quantity thereof are within the limits specified in the
said authorisation;(iv) that in respect of imports made before the discharge of export
obligation, the importer at the time of clearance of the imported
materials executes a bond with such surety or security and in such
form and for such sum as may be specified by the Deputy
Commissioner of Customs or Assistant Commissioner of Customs, as
the case may be, binding himself to pay on demand an amount equal
to the duty leviable, but for the exemption contained herein, on the
imported materials in respect of which the conditions specified in this
notification are not complied with, together with interest at the rate of
fifteen percent per annum from the date of clearance of the said
materials;(v) that in respect of imports made after the discharge of export
obligation, if facility of CENVAT Credit under CENVAT Credit Rules,
2004 has been availed, then the importer shall, at the time of clearance13 | P a g e E/10314/2016-DB
of the imported materials furnish a bond to the Deputy Commissioner
of Customs or Assistant Commissioner of Customs, as the case may
be, binding himself, to use the imported materials in his factory or in
the factory of his supporting manufacturer for the manufacture of
dutiable goods and to submit a certificate, from the jurisdictional
Central Excise officer or from a specified chartered accountant within
six months from the date of clearance of the said materials, that the
imported materials have been so used :Provided further that if the importer pays additional duty of customs
leviable on the imported materials but for the exemption contained
herein, then the imported materials may be cleared without furnishing a
bond specified in this condition and the additional duty of customs so
paid shall be eligible for availing CENVAT Credit under the CENVAT
Credit Rules, 2004;(vi) that in respect of imports made after the discharge of export
obligation in full, and if facility under rule 18 (rebate of duty paid on
materials used in the manufacture of resultant product) or sub-rule (2)
of rule 19 of the Central Excise Rules, 2002 or CENVAT credit under
CENVAT Credit Rules, 2004 has not been availed and the importer
furnishes proof to this effect to the satisfaction of the Deputy
Commissioner of Customs or the Assistant Commissioner of Customs
as the case may be, then the imported materials may be cleared
without furnishing a bond specified in condition (v);(vii) that the imports and exports are undertaken through seaports at
Bedi (including Rozi-Jamnagar), Chennai, Cochin, Dahej, Dharamtar,
Haldia (Haldia Dock complex of Kolkata port) Kakinada, Kandla,
Kolkata, Krishnapatnam, Magdalla, Mangalore, Marmagoa,
Muldwarka, Mumbai, Mundhra, Nagapattinam, Nhava Sheva, Okha,
Paradeep, Pipavav, Porbander, Sikka, Tuticorin, Visakhapatnam and
Vadinar or through any of the airports at Ahmedabad, Bangalore,
Bhubaneswar, Chennai, Cochin, Coimbatore, Dabolim (Goa), Delhi,
Hyderabad, Indore, Jaipur, Kolkata, Lucknow (Amausi), Mumbai,
Nagpur, Rajasansi (Amritsar), Srinagar, Trivandrum and Varanasi or
through any of the Inland Container Depots at Agra, Ahmedabad,
Anaparthy (Andhra Pradesh), Babarpur, Bangalore, Bhadohi,
Bhatinda, Bhilwara, Bhiwadi, Bhusawal, Chheharata (Amritsar),
Coimbatore, Dadri, Dappar (Dera Bassi), Daulatabad (Wanjarwadi and
Maliwada), Delhi, Dighi (Pune), Durgapur (Export Promotion Industrial
Park), Faridabad, Garhi Harsaru, Gauhati, Guntur, Hyderabad, Jaipur,
Jallandhar, Jamshedpur, Jodhpur, Kanpur, Karur, Kota, Kundli, Loni
(District Ghaziabad), Ludhiana, Madurai, Malanpur, Mandideep
(District Raisen), Miraj, Moradabad, Nagpur, Nasik, Pimpri (Pune),
Pitampur (Indore), Pondicherry, Raipur, Rewari, Rudrapur(Nainital),
Salem, Singanalur, Surat, Surajpur, Tirupur, Tuticorin, Udaipur,
Vadodara, Varanasi, , Waluj (Aurangabad) or through the Land
Customs Station at Agartala, Amritsar Rail Cargo, Attari Road,
Changrabandha, Dawki, Ghojadanga, Hilli, Jogbani, Mahadipur,
Nepalganj Road, Nautanva (Sonauli), Petrapole, Ranaghat, Raxaul,
Singhabad and Sutarkhandi or a Special Economic Zone notified undersection 4of the Special Economic Zones Act, 2005 (28 of 2005) :Provided that the Commissioner of Customs may with in the
jurisdiction , by special order, or by a Public Notice, and subject to
such conditions as may be specified by him, permits import and export14 | P a g e E/10314/2016-DB
from any other seaport/airport/inland container depot or through any
land customs station;(viii) that the export obligation as specified in the said authorization
(both in value and quantity terms) is discharged within the period
specified in the said authorization or within such extended period as
may be granted by the Regional Authority by exporting resultant
products, manufactured in India which are specified in the said
authorization and in respect of which facility under rule 18 (rebate of
duty paid on materials used in the manufacture of resultant product) or
sub-rule (2) of rule 19 of the Central Excise Rules, 2002 has not been
availed :Provided that an Advance Intermediate authorization holder shall
discharge export obligation by supplying the resultant products to
exporter in terms of paragraph 4.1.3 (ii) of the Foreign Trade Policy;(ix) that the importer produces evidence of discharge of export
obligation to the satisfaction of the Deputy Commissioner of Customs
or Assistant Commissioner of Customs, as the case may be, within a
period of sixty days of the expiry of period allowed for fulfilment of
export obligation, or within such extended period as the said Deputy
Commissioner of Customs or Assistant Commissioner of Customs, as
the case may be, may allow;(x) that the said authorisation shall not be transferred and the said
materials shall not be transferred or sold :Provided that the said materials may be transferred to a job worker for
processing subject to complying with the conditions specified in the
relevant Central Excise notifications permitting transfer of materials for
job work :Provided further that, no such transfer for purposes of job work shall be
effected to the units located in areas eligible for area based
exemptions from the levy of excise duty in terms of notification Nos.
49/03-C.E. and 50/03-C.E. both dated 10th June, 2003, 32/99-C.E.,
dated 8th July, 1999, 33/99-C.E., dated 8th July, 1999, 8/04-C.E.,
dated 21st January, 2004, 20/07-C.E. dated 25th April, 2007, 56/02-
C.E., dated 14th November, 2002, 57/02-C.E. dated 14th November,
2002, 71/03-C.E., dated 9th September, 2003, 56/03-C.E. dated 25th
June, 2003 and 39/01-C.E., dated 31st July, 2001;(xi) that in relation to the said authorisation issued to a merchant
exporter, any bond required to be executed by the importer in terms of
this notification shall be executed jointly by the merchant exporter and
the supporting manufacturer binding themselves jointly and severally to
comply with the conditions specified in this notification.2. Where the materials are found defective or unfit for use, the said
materials may be re-exported back to the foreign supplier within six
months from the date of clearance of the said material or such
extended period not exceeding a further period of six months as the
Commissioner of Customs may allow :Provided that at the time of re-export the materials are identified to the
satisfaction of the Deputy Commissioner of Customs or Assistant
15 | P a g e E/10314/2016-DB
Commissioner of Customs, as the case may be, as the materials which
were imported.3. Notwithstanding anything contained in this notification, the actual
user condition specified in condition numbers (viii) and (x) shall not be
applicable in respect of authorisation issued for import of raw sugar for
imports made from the 17th February, 2009 till 30th September, 2009
and the export obligation may also be fulfilled by procuring white sugar
from any other factory with effect from the 17th February, 2009.
Explanation, - For the purposes of this notification,-(i) "Dutiable goods" means excisable goods which are not exempt
from central excise duty and which are not chargeable to „nil‟ rate of
central excise duty;(ii) "Foreign Trade Policy" means the Foreign Trade Policy 2009-
2014, published by the Government of India in the Ministry of
Commerce and Industry vide notification No. 1/2009-2014, dated the
27th August 2009 as amended from time to time;(iii) "Licensing Authority or Regional Authority" means the Director
General of Foreign Trade appointed undersection 6of the Foreign
Trade (Development and Regulation) Act, 1992 (22 of 1992) or an
officer authorized by him to grant a licence under the said Act;(iv) "Manufacture" has the same meaning as assigned to it in
paragraph 9.37 of the Foreign Trade Policy;(v) "Materials" means-(a) raw materials, components, intermediates, consumables,
catalysts and parts which are required for manufacture of resultant
product;(b) mandatory spares within a value limit of ten per cent. of the value
of the licence which are required to be exported along with the
resultant product;(c) fuel required for manufacture of resultant product;(d) packaging materials required for packing of resultant product;(vi) "Specified Chartered Accountant" means a statutory auditor or a
Chartered Accountant who certifies the importer‟s financial records
under theCompanies Act, 1956(1 of 1956) or the Sales Tax/Value
Added Tax Actof the State Government or theIncome Tax Act, 1961(43 of 1961)".From the reading of above Rule 18 of the Central Excise Rule, 2002
and Notification No. 21/2004-CE (NT) issued there under. We find that
16 | P a g e E/10314/2016-DB
there is no conditions in the said Notification that if any Contravention of
the condition of Notification No. 96/2009-Cus is made then the assessee is
not be eligible for rebate of duty paid on raw material used in the export
goods in terms of Rule 18 and Notification issued there under. We find that
the Rule 18 Notification No. 29/2004-CE is self contained statutory provision
for granting rebate of duty paid on raw material used in the export goods
subject to certain procedure /permission. We find that the appellant have
scrupulously followed the procedure and also obtained the permission, only
after compliance thereof the rebate was sanctioned, since, in view of this
position, it is not permissible in law to import any extraneous conditions of
some different Notification into the provision of rebate and rebate cannot be
rejected for that reason. Similarly, by reading the Notification No. 96/2009-
Cus there is no condition with reference to the rebate provision of Rule 18
and Notification No. 21/2004-CE. From the facts of the case it is undisputed
that even by stretch of imagination it is interpreted that due to
contravention of the condition of Notification No. 96/2009-Cus the rebate
cannot be sanctioned. We find that the appellant have claimed the rebate
only in respect of indigenously procured raw material on which no benefit of
Notification No. 96/2009-Cus was availed, therefore, on this fact even the
allegation in the show cause notice even though it is not sustainable as
irrelevant with the sanction of rebate claim under Rule 18. Therefore, on
both counts the adjudication authority has gravely arred in passing
impugned order by which recovery of the sanctioned rebate was confirmed.
The order of the adjudicating authority is without authority of law. As there
is no provision in the statute to recovery the rebate claims sanctioned under
Rule 18 for violation of condition of Notification No. 96/2009-Cus.5. As per our above discussion, we are of the considered view that
appellant was legally entitled for rebate claim even if there is any violation
17 | P a g e E/10314/2016-DB
of conditions of Notification No. 96/2009-Cus if any, therefore, the order for
recovery of the said rebate claim is absolutely illegal and not tenable.6. Accordingly, the impugned order is set aside, appeal is allowed.(Pronounced in the open court on 02.11.2018 )
(Raju) (Ramesh Nair)
Member (Technical) Member (Judicial)
Prachi |
aae7c8a6-9449-5743-8c4e-05c7dfde2a88 | court_cases | Calcutta High CourtGurdeo Singh And Chandrikah Singh vs Chandrikah Singh And Rashbehary Singh on 10 April, 1907Equivalent citations: (1909)ILR 36CAL193JUDGMENT
Mookerjee, J.1. The circumstances, which gave rise to the litigation out of which the present appeals arise are in some measure complicated, but although they were in controversy between the parties in the Court below, the facts found by the Subordinate Judge have not been challenged before us. These facts, in so far as it is necessary to state them for the disposal of the questions of law raised in the two appeals, may be briefly stated. On the 23rd November 1886, the first four defendants in the present suit executed a mortgage in favour of the father of defendant No. 14. The property comprised in the security consisted of a share in Mehal Raipur Chur, which included three villages, Raipur Khas, Kachnath and Burkavi. The mortgagors undertook to repay the loan on the 13th June 1889. Subsequently, on the 1st February 1898, the plaintiffs purchased from the mortgagee his rights under the security of 1886, and, on the 15th June 1900, commenced the present action to enforce them. The defendants, against whom relief is claimed or who are sought to be bound by the decree in the present litigation, may be divided into three groups. The first four defendants are the mortgagors; the next four are some encumbrancers, who have enforced their securities as against the mortgagors; and the third set of four defendants are other encumbrancers similarly situated.2. The transactions, by which these two sets of defendants claim to have acquired an interest in the properties included in the mortgage, which is the foundation of the title of the plaintiffs, appear to be as follows. On the 15th December 1884, the first four defendants executed a mortgage in favour of defendants 5 to 8 in respect of a share of Mehal Raipur Chur. On the 31st May, 1894, the mortgagees sued to enforce their security, and joined as parties defendants, not only their mortgagors, but also the predecessor in interest of the present plaintiffs, namely, the mortgagee of 1886. On the 21st March 1895, the mortgagees obtained a decree as against their mortgagors, but their claim was dismissed as against the mortgagee of 1886. Subsequently, they executed this decree and became purchasers of the property comprised in their security. On the 5th May 1887, the first four defendants executed a mortgage in favour of defendants 5 to 8 and the properties comprised in this security were shares in Mehal Raipur Chur and another property by name Chandharwa. On the 31st May 1894, the mortgagees sued to enforce their security, and joined as parties defendants their mortgagors, as also the mortgagee of 1886. On the 21st March 1895, the suit was decreed as against the mortgagors, but was dismissed as against the predecessor in title of the present plaintiffs. Subsequently, they executed their decree and became purchasers of the properties comprised in their security.3. On the 29th March and 2nd June 1885, the first four defendants executed two mortgages in favour of defendants 9 to 12. The properties comprised in these securities were shares of Mehal Raipur Chur, which included Kachnath and Burkavi. In 1899 the mortgagees brought a suit to enforce their security and joined as parties defendants, not only their mortgagors, but also defendants 5 to 8, that is, the mortgagees of 1884 and 1887, defendant 14, that is, the mortgagee of 1886, and the present second plaintiff, who had taken a conveyance from the mortgagee of 1886 for the benefit of himself and the other plaintiff. On the 5th April 1900, the mortgagees obtained a decree, which reserved in favour of defendants 5 to 8 a declaration of priority, not merely in respect of their bond of 1884, but also with regard to a sum of Rs. 1,172 out of the debt due to them under their bond of 1887. The decree, however, directed that the mortgagees should proceed in the first instance against properties other than Mehal Raipur Chur. On the 23rd November 1900, the mortgagees enforced their decree and purchased Kachnath and Burkavi in partial satisfaction of their dues. This did not, however, affect their right to proceed against Raipur Chur for the realization of the remainder of their dues under their mortgage decree.4. In the, present case the claim of the plaintiffs under the mortgage of 1886 has been resisted substantially by the two sets of defendants, whom we have described as defendants 5 to 8 and defendants 9 to 12, and the principal point in controversy between the parties is as to the manner in which their respective rights under the different mortgages and execution sales are. to be regulated. The learned Subordinate Judge has made the usual mortgage decree in favour of the plaintiffs for Rs. 9, 121, and has directed that, if the decretal money is not paid within three months, the mortgaged property Mehal Raipur Chur is to be sold subject to the prior mortgage charge of defendants 5 to 8 and subject to the charge of the remaining decretal money of defendants 9 to 12, so that the purchaser at the auction sale will have to pay up the mortgage lien of defendants 5 to 8 and the balance of the judgment debt due to defendants 9 to 12. Against this decree, objection has been taken by all the parties interested. Defendants 5 to 7 have preferred Appeal No. 540 of 1904. The plaintiffs have preferred Appeal No. 566 of 1904 and a memorandum of cross-objection has been presented on behalf of defendants 9 to 12.5. On behalf of defendants 5 to 7 the judgment of the lower Court has been assailed substantially on four grounds, namely, first, that the Subordinate Judge had no jurisdiction to hear the case; secondly, that the decrees obtained by these defendants on the basis of their mortgages of 1884 and 1887 operate as res judicata, so that the plaintiffs are not entitled to enforce their security as against the properties purchased by the appellants in execution of the two decrees obtained by them; thirdly, that the appellants are entitled to priority over the mortgage of the plaintiffs, not only in respect of their mortgage of 1884, but also in respect of the sum of Rs. 1,952, which formed part of the consideration of their mortgage of 1887; and fourthly, that the plaintiffs are not entitled to interest upon their security at the rate claimed, as they had subsequently entered into a valid compromise by which they undertook to reduce the rate of interest.6. On behalf of the plaintiffs, the decision of the Subordinate Judge has been challenged substantially on two grounds, namely, first, that the decisions in the suits commenced by the mortgagees of 1884 and 1887 to enforce their securities, which were ultimately dismissed as against the predecessor in interest of the plaintiffs, operate as res judicata, and that consequently the plaintiffs are entitled to enforce their security precisely in the same manner as if the mortgages of 1884 and 1887 had never been created; and secondly, that defendants 5 to 8 and 9 to 12 are bound to render an account of the profits of the property, of which they have taken possession as purchasers at the sales held in execution of their decrees. On behalf of defendants 9 to 12 the decision of the Subordinate Judge has been challenged on the ground that they are entitled to their costs of the litigation from the plaintiffs, whose claim has substantially failed as against them. We shall first take up the points raised in the appeal of the defendants 5 to 7; but as the question of res judicata is raised by these defendants as also by the plaintiffs, it will be convenient, if we discuss this question from the points of view of both the parties.7. The first ground taken on behalf of defendants 5 to 7 raises the question of the jurisdiction of the Subordinate Judge to entertain this suit. The circumstances, so far as it is necessary to state them for the elucidation of this point, appear to be as follows: The present action was commenced on the 15th June 1900, and it was originally instituted in the Court of the second Subordinate Judge of Shahabad. On the 22nd June 1901, the District Judge transferred the case to his own Court, and it may be presumed that he acted in exercise of the powers conferred upon him bySection 25of the Code of Civil Procedure. On the 24th June following, the suit was dismissed by the District Judge for want of prosecution. The plaintiffs appealed to this Court, and on the 25th February 1904, a Division Bench allowed the appeal and sent back the case to the District Judge for rehearing. After the records had been remitted to the District Judge, the case remained pending in his Court from the 7th June to the 25th June 1904. On the latter date, the District Judge transferred the case to the first Subordinate Judge as he himself was about to proceed on leave. On the 28th June, the case was received by the Subordinate Judge, and the trial lasted from the 28th July to the 18th August 1904. No objection was taken by either party to the effect that the Subordinate Judge had no jurisdiction to try the case. It is now contended, however, that the Subordinate Judge had no jurisdiction, and, as the question is one of jurisdiction, we have allowed the appellants to take it, although it had not been suggested at any earlier stage of the proceedings. The ground, upon which the objection is founded, is that although underSection 25of the Code of Civil Procedure a District Court has power to withdraw any suit pending in a Court of first instance subordinate to it and to try the suit itself or transfer it for trial to any other Subordinate Court competent to try it, the District Court has no power, after it has withdrawn a suit and placed it on the files, to transfer it to any Subordinate Court. In support of this position, reliance has been placed upon the cases of Ram Charittar Roy v. Bidhata Roy (1906) 10. C.W.N. 902 and Sita Ram v. Nauni Dulaiya (1899) I.L.R. 21 All. 230.8. It has been argued, on the other hand, by the learned vakil for the appellants respondents that there are at least three answers to the contention of the appellants, namely, first, that the District Judge had inherent power, apart from the provisions ofSection 25of the Code of Civil Procedure, to transfer a suit from his Court to that of the Subordinate Judge; secondly, that if he did not possess such power, the Subordinate Judge has not acted without jurisdiction, but has at best assumed jurisdiction in an irregular manner, and that consequently the defendants, who had acquiesced in the exercise of such jurisdiction, ought not to be permitted now to question the legality of the proceedings before the lower Court; and thirdly, that the defect, if any, is cured bySection 578of the Code of Civil Procedure, inasmuch as the order of transfer might undoubtedly have been made by this Court, if not by the District Court, and that, if any objection had been taken in time before the Subordinate Judge, the plaintiffs might also have avoided the defect by the presentation of a new plaint, as no question of limitation could possibly arise upon the admitted facts of the case. In our opinion the contention of the learned vakil for the plaintiffs respondents furnishes, in each of its three branches, a complete and conclusive answer to the plea of want of jurisdiction advanced by the appellants. The case of Ram Charittar Roy v. Bidhata Boy (1906) 10. C.W.N. 902 is, no doubt, an authority for the proposition that, when once a District Judge withdraws a suit to his own file for trial, he is not competent, underSection 25of the Civil Procedure Code, to retransfer it to the Court from which the case had been withdrawn.The case ofSita Ram v. Nauni Dulaiya(1899) I.L.R. 21 All. 230 appears to go still further, as the learned Judges held thatSection 25has no application to a case remanded under Section 562.The cases ofSakharam v. Gangaram(1899) I.L.R. 13 Bom.654, Amir Begum v. Prahlad Das (1902) I.L.R. 24 All. 304 and Nundan Prasad v. W.C. Kenney (1902) I.L.R. 24 All. 356 also support the view that, where a District Judge has once exercised the powers conferred bySection 25of the Civil Procedure Code and transferred a case to his own Court from that of the Subordinate Judge, he cannot afterwards retransfer such case.9. In these cases, however, the Court was not invited to consider whether, apart from the provisions ofSection 25of the Civil Procedure Code, the District Court may not have authority to make an order of the description now in question before us. In our opinion, there is considerable force in the contention of the learned vakil for the plaintiffs respondents that as under Section 9 of Act XII of 1887, the District Judge has administrative control over all the Civil Courts within the local limits of his jurisdiction, it ought to be held that the District Judge has inherent power to transfer a case from his own Court to that of the Subordinate Judge, specially when, as in the present instance, the order was made for the obvious benefit of the litigants and for the speedy determination of the matter. It has been ruled by this Court, in the cases of Panchanan Singha Roy v. Dwarka Nath Roy (1905) 3 C.L.J. 29 and Hukum Chand Boid v. Kamalanand Singh(1905) I.L.R. 33 Calc. 927; 3 C.L.J. 67, thatthe Code of Civil Procedurewas not intended to be, and is not, exhaustive.As was observed in the case ofRasik Lal Datta v. Bidhumukhi Dasi(1906) I.L.R. 33 Calc. 1094; 4 C.L.J. 403, the Code does not affect the power and duty of the Court in cases where no specific rule exists, and the Court should act according to equity, justice and good conscience, though in the exercise of such power it must be careful to see that its decision is based on sound general principles and is not in conflict with them or the intention of the legislature.10. We agree entirely with the view indicated in the cases mentioned that the Courts in this country have, in matters of procedure, powers beyond those which are expressly given bythe Code of Civil Procedure, which binds Courts only in so far as it goes; the powers of the Court are not rigidly circumscribed by the provisions of the Code, and it is not possible to maintain the theory that the Court has no power to make a particular order, though it may be absolutely essential in the interests of justice, unless some section of the Code can be pointed out as a direct authority for it. We are not Unmindful that there are, perhaps, observations in the case of Bidya Moyee Debya Chowdhurani v. Surja Kanta Acharji (1905) I.L.R. 32 Calc. 875, which may, at first sight, appear to militate against this view, and may lend some colour of support to the contention that a District Judge has no inherent power to transfer a case either from his own Court or from that of an officer under his administrative control, and that the power must be one conferred by Statute. The circumstances of that case, however, were of an entirely different description, and it was not intended there to decide the question, which has been raised before us.11. We are, therefore, disposed to hold that the District Judge had power, under the circumstances disclosed in the order-sheet, to make the order of transfer, which he did; and we arrive at this conclusion without hesitation, as the result of our view undoubtedly accords with what has been for many years past the well-established practice. We may further point out that, as was laid down by their Lordships of the Judicial Committee in the case of Syud Tuffuzzool v. Rughoo Nath (1871) 14 Moo I.A. 40, 51, to proceed to recall and cancel an invalid order is not simply permitted to, but is the duty of a Judge, who should always be vigilant not to allow the act of the Court "itself to do wrong to the suitor; see also Hiralal Mukerji v. Premamoyee Debi (1905) 2 C.L.J. 306, 309, where the application of this principle is explained. We are unable to appreciate why this principle should not be applied to the case before us. If the District Judge, who has transferred a case to his Court, discovers that the very object, with which the case was transferred, is likely to fail by reason of unforeseen circumstances, it would be unreasonable to hold that it is not competent to him to withdraw the order and restore the case to the Court of the Subordinate Judge.12. But it is not necessary to rest our decision on this ground alone, because the second and third branches of the contention of the plaintiffs respondents appear to us to be unanswerable. It was contended by the learned vakil for the respondents that, assuming that the District Judge had no power under the law to transfer a case from his Court to that of the Subordinate Judge, this does not really affect the jurisdiction of the latter officer. Under Section 18 of Act XII of 1887, the Subordinate Judge unquestionably possessed jurisdiction over the subject matter of the litigation. The only suggestion, which can be plausibly made, is that he assumed that jurisdiction in an irregular manner. The case, therefore, is not one of absolute want of jurisdiction, but is at best of an irregular assumption of jurisdiction. It was argued on behalf of the respondents that, in such a case as this, the appellants, who had never taken this objection at an earlier stage of the proceedings, were precluded from raising the question now.13. In our opinion, this distinction is well founded on principle and is amply supported by authority. In Ledgard v. Bull (1886) I.L.R. 9 All 191 L.R. 13 I.A. 134, 144, their Lordships of the Judicial Committee pointed out that, although jurisdiction cannot be conferred by consent where there is an entire absence of jurisdiction, in a case where the Court is competent to entertain the suit, if it were competently brought, the defendant may be barred by his own conduct from objecting to the irregularities in the institution of the suit; and, further, that when a Judge has no inherent jurisdiction over the subject matter of a suit, the parties cannot, by their mutual consent, convert it into a proper judicial process, although they may constitute the Judge their arbitrator and be bound by his decision on the merits, when these are submitted to him. There are numerous authorities, which establish that, when in a cause which the Judge is competent to try, the parties without objection join issue and go to trial upon the merits, the defendant cannot subsequently dispute his jurisdiction upon the ground that there were irregularities in the initial procedure, which, if objected to at the time, would have led to the dismissal of the suit. To the same effect are the observations of their Lordships in the case of Meenakshi Naidoo v. Subramanya Sastri (1887) L.R. 14 I.A. 160; I.L.R. 11 Mad. 26, where their Lordships affirmed the view taken in Ledgard v. Bull (1886) L.R. 13 I.A. 134; I. L.R. 9 All. 191 and pointed out that a waiver of a right to complain for want of jurisdiction is inapplicable only if there is an inherent incompetency in the Court to deal with the question brought before it, and that no consent can confer upon a Court that jurisdiction, which it never possessed. This distinction between an absolute want of jurisdiction and an irregular assumption of jurisdiction has, sometimes, been overlooked.14. But the foundation of the distinction is fully explained in the Order of Reference to a Full Bench in the cases ofSukh Lal Sheikh v. Tara Chand Ta(1905) I.L.R. 33 Calc.68; 2C.L.J. 241 and Ghosh Mahomed Sirkar v. Nazir Mahomed(1905) I.L.R. 33 Calc. 352; 3 C.L.J. 259.In the first of these cases, it was pointed out that jurisdiction may be defined to be the power of a Court to hear and determine a cause, to adjudicate or exercise any judicial power in relation to it, Rhode Island v. Massachusetts (1838) 12 Peters U.S. 657. Such jurisdiction naturally divides itself into three broad heads, namely, with reference to (1) the subject matter, (2) the parties, (3) the particular question which calls for decision, Black on Judgments, Section 215.15. A Court cannot adjudicate upon a subject matter, which does not fall within its province as defined or limited by law; this jurisdiction may be regarded to be essential, for jurisdiction over the subject matter is a condition precedent to the acquisition of authority over the parties, and, if a Court has no jurisdiction over the subject matter of the controversy, consent of the parties cannot confer such jurisdiction, and a judgment made without jurisdiction in such a case is absolutely null and void; it may be set aside by review or appeal, or its nullity may be established, when it is sought to be relied upon in some other proceeding: See Hawes on Jurisdiction, pages 12-16; Hermann on Estoppel,Section 110, and Frankel v. Sutter field (1890) 19 Atlantic Rep. 898.16. An entirely different class of questions, however, arises, when it is suggested that a Court in the exercise of the jurisdiction which it possesses, has not acted according to the mode prescribed by the Statute. If such a question is raised, it relates obviously, not to the existence of jurisdiction, but to the exercise of it in an irregular or illegal manner. This distinction between elements, which are essential for the foundation of jurisdiction and the mode in which such jurisdiction has to be assumed and exercised, is of fundamental importance, but has not always been sufficiently recognised. That the distinction is well-founded is manifest from cases of high authority. Thus, in Pisani v. Attorney-General of Gibraltar (1874) L.R. 5 P.C. 515 their Lordships of the Judicial Committee held that, where there is jurisdiction over the subject matter, but non-compliance with the procedure prescribed as essential for the exercise of jurisdiction, the defect might be waived. The same principle was adopted in Exparte Pratt (1884) 12 Q.B.D. 334 and Exparte May (1884) 12 Q.B.D. 497, which are authorities for the proposition that where jurisdiction over the subject matter exists requiring only to be invoked in the right way, the party, who has invited or allowed the Court to exercise it in a wrong way, cannot afterwards turn round and challenge the legality of the proceedings due to his own invitation or negligence; see Vishnu Sakharam Nagarkar v. Krishna Rao Malhar (1886) I.R. 11 Bom. 153. Although the objection that a Court is not given jurisdiction over the subject matter by law, cannot be waived, Golab Sao v. Chowdhury Madho Lal (1905) 2 0. L.J. 384; 9 C.W.N. 956, yet defects of jurisdiction arising from irregularities in the commencement of the proceedings, may be waived by the failure to take objection at the proper stage of the proceedings; Harkness v. Hyde (1878) 98 U.S. 476, Jollaud v. Sprague (1833) 12 Peters U.S. 300, Rhode Island v. Massachusetts (1838) 21 Peters U.S. 657, 718.17. To put the matter from another point of view, it is only when a Judge or Court has no jurisdiction over the subject-matter of the proceeding or action in which an order is made or a judgment rendered, that such order or judgment is wholly void, and that the maxim applies that consent cannot give jurisdiction; in all other cases, this objection to the exercise of the jurisdiction may be waived, and is waived when not taken at the time the exercise of the jurisdiction is first claimed, Hobart v. Frost (1856) 5 Duer N.Y. 672; Black on Judgments, Section 217.18. On this ground, we must hold, as regards the second branch of the contention of the respondents, that the defendants have waived their right to take exception to the power of the Subordinate Judge to try the cause under authority of an order of transfer made by the District Judge. As regards the third branch of the contention of the respondents, namely, that the objection is entirely devoid of all substance, it is manifest from other considerations. It cannot be disputed that the order of transfer might have been made by the High Court. If, therefore, objection had been taken by the defendants either at the time, when the District Judge made his order or at the time when the Subordinate Judge dealt with the case on the merits, it would have been open to the plaintiffs to obtain an order from this Court, which would have cured the defect. It may further be pointed out that, if the objection had been taken at the time, it would have been open to the plaintiffs to present even a new plaint to the Subordinate Judge. Indeed, if the suit be assumed to have been instituted on the day when the Subordinate Judge took cognizance of it, it would not be open to objection on the ground of limitation, because, although the due date upon the bond expired on the 13th June 1889, the liability of the mortgagors was kept alive by acknowledgment made within twelve years from the date of the present suit. From every point of view, therefore, it follows that the appellants are precluded from questioning, at the present stage, the validity of the proceedings before the Subordinate Judge. The first ground taken on behalf of the defendants 5 to 7 consequently fails and must be overruled.19. The second ground taken on behalf of defendants 5 to 7 involves the question of res judicata, and the first ground taken on behalf of the plaintiff raises precisely the same question. But, although the parties are agreed that the decisions in the litigations of 1894 upon the mortgages of 1884 and 1887 operate as res judicata, they are not agreed as to the precise effect of those decisions. Defendants 5 to 7 contend that the effect is to preclude the plaintiffs from enforcing their mortgage against the properties purchased by the decree-holders mortgagees in the suits of 1894. The plaintiffs assert, on the other hand, that the effect is to preclude defendants 5 to 7 from setting up their mortgages and thus to place the plaintiffs in the position, which they would have occupied, if the mortgages of 1884 and 1887 had never been created. To determine which of these contentions ought to prevail, we have to examine the circumstances of these two litigations; for as was pointed out by this Court, in the cases of Surjiram Marwari v. Barhamdeo Persad (1905) 1 C.L.J. 337, 349' and Magniram v. Mehdi Hossein Khan(1903) I.L.R. 31 Calc.95, to determine the question of res judicata, it is essential to ascertain what were the rights in dispute between the parties and what were alleged between them, and this must be done, not merely from the decree, but also from the pleadings and judgment.20. Now, it appears that defendants 5 to 8 commenced suit No. 22 of 1884 to enforce their mortgage of the 15th December 1884, and they instituted suit No. 21 of 1894 to enforce their security of the 5th May 1887. In each of these suits they joined as parties defendants, not merely their mortgagors, who are now defendants 1 to 4, but also defendant No. 14, who is the mortgagee of 1886 and is the predecessor in title of the present plaintiffs. It will; be observed that in the suit to enforce the security of 1884, the mortgagee of 1886 was a necessary party, and an examination of the plaintin that caseshows that he was brought on the record as a puisne encumbrancer interested in the mortgaged premises. He filed a written statement in which he challenged the validity of the plaintiffs mortgage and alleged that it was fraudulent and without consideration. He further pleaded that the plaintiffs had no valid cause of action as against him. Upon these pleadings, issues were raised, one of which was, whether the bond was genuine and bona fide, and another was, whether the plaintiffs had any cause of action against that defendant. The Subordinate Judge, who tried the case, found that neither party had proved that this particular defendant was in any way interested in the mortgaged property. He also held that the evidence adduced to establish the payment of consideration for the mortgage was not satisfactory or reliable, and that the admission of the mortgagors that they had received the sum alleged to have been advanced was no evidence against the other defendants.21. In this view of the matter, the Court dismissed the suit against the mortgagee of 1886, but made a decree against the mortgagors, as they had confessed judgment. The decree directed the sale of the mortgaged property only in so far as the mortgagors were concerned. As we have already stated, the mortgagees decree-holders subsequently executed this decree and purchased the property at the execution sale. As regards the mortgage of 1887, the mortgagees, the present defendants 5 to 8, commenced their suit against the mortgagors and the mortgagee of 1886. An examination of the plaint shows that it does not disclose any cause of action against the mortgagee of 1886. It will be observed that the mortgagee of 1866 was not a necessary party to enforce the mortgage of 1887; for, as was explained by this Court in the case of Surjiram Marwari v. Barhamdeo Persad (1905) 1 C.L.J. 337, 351 in a suit to enforce a second mortgage, the first mortgagee is not a necessary party. No doubt in one of the paragraphs of the plaint it was alleged that a portion of the consideration money for the mortgage of 1887, namely, Rs. 1,952, had been applied in satisfaction of interest due upon earlier bonds of the 15th December 1884, the 29th March 1885, and the 2nd June 1885; but there was no express prayer that in respect of this sum, the mortgage, though of 1887, might be treated as entitled to priority over the mortgage of 1886. The mortgagee of 1886 defended the suit on the ground that there was no valid cause of action as against him, and also asserted that the mortgage bond, on which the claim was founded, was collusive and without consideration. Upon these pleadings, the Subordinate Judge framed issues, one of which was, whether the bond in suit was genuine and bona fide, and another was, whether the plaintiffs had any cause of action against the mortgagee of 1886. There was no issue raised as to whether the bond of 1887, if genuine, was, in respect of a portion of the consideration money, entitled to priority over the bond of 1886. The Subordinate Judge found upon the evidence that there was nothing to show whether the alleged mortgagee of 1886 was really interested in the property in suit. He also held that there was no reliable evidence to prove the claim against them. In this view of the matter, he dismissed the suit against the mortgagee of 1886, but made a decree against the mortgagors on confession of judgment. The decree directed the sale of the properties included in the mortgage so far as the mortgagors were concerned. The mortgagees subsequently executed this decree and purchased the property at the execution sale. Upon these facts, the learned vakil for defendants 5 to 7, the mortgagees of 1884 and 1887, contends that the present plaintiffs, whose predecessor, the mortgagee of 1886, was a party defendant to the suits of 1894, are precluded by the doctrine of res judicata, from setting up the mortgage of 1886. In support of this position reliance is placed upon the cases of Srigopal v. Pirthi Singh (1902) L.R. 291. A. 118; I.L.R. 24 All.429 andGopal Lal v. Benarasi Pershad Chowdhry(1904) I.L.R. 31 Calc. 428.22. It is argued on the other hand by the learned vakil for the plaintiffs that as the suits of 1884 were dismissed as against the mortgagee of 1886, defendants 5 to 8 are now precluded from relying upon their mortgages of 1884 and 1887, which they had unsuccessfully attempted to enforce as against their predecessor in the two earlier litigations, to which we have referred.In support of this position, reliance is placed upon the decision of their Lordships of the Judicial Committee in the case ofRun Bahadur Singh v. Lucho Koer(1884) I.L.R. 11 Calc. 301, 306. After a careful examination of the authorities upon which reliance is placed on both sides, we are clearly of opinion that the contention of the plaintiffs is well founded and must prevail.It is not necessary to examine minutely the decisions in Srigopal v. Pirthi Singh (1902) L.R. 29 I.A. 118 I.L.R. 24 All.429 andGopal Lal v. Benarasi Pershad Chowdhry(1904) I.L.R. 31 Calc. 428, upon which reliance is placed on behalf of the defendants 5 to 8.The true foundation of the doctrinelaid down inthose cases was fully explained by this Court in the case of Surjiram Marwari v. Barhamdeo Persad (1905) 1 0. L.J. 337, 350. That principle to our mind has no application to the facts of the present case. It has been strenuously argued by the learned vakil for the defendants 5 to 8 that the mortgagee of 1886 was bound to establish his title, when he was brought before the Court in the litigations of 1894, and that his omission or failure to do so precluded him from relying upon that title in the present litigation. In our opinion, there is no foundation for this argument. So far as the security of 1887 was concerned, the mortgagee of 1886 was, as we have already explained, not a necessary party to the suit to enforce it. No doubt he might be a necessary party, if the plaintiffs attempted to obtain priority in favour of their mortgage of 1887 over the mortgage of 1886. But, although a suggestion to that effect was made in the plaint, there was no relief expressly claimed on that basis. The question was not even raised in the issues, and the suit ultimately failed by reason of the failure of the mortgagees of 1887 to establish the genuineness of their security as against the mortgagee of 1886. In the same manner, so far as the security of 1884 was concerned, although the mortgagee of 1886 was a proper and necessary party, the suit to enforce the claim was unsuccessful by reason of the failure of the mortgagees of 1884 to establish the genuineness of the security as against the mortgagee of 1886. Under these circumstances, it is impossible to hold that merely because the mortgagee of 1886 failed to establish his security in the suits of 1894, such failure in any way precludes him or his representative from now relying on his title under the mortgage.23. The decrees of dismissal, which were made in the suits of 1894, were decrees, which were based on the finding that the mortgages of 1884 and 1887 were not proved to be genuine and for consideration as against the mortgagee of 1886. That finding, therefore, clearly operates as res judicata in favour of the mortgagee of 1886. The decrees, which were made, were in accordance with and based on this finding, seePeary Mohan Mukerjee v. Ambica Churn Bandopadhya(1897) I.L.R. 24 Calc. 900.24. On the other hand, the finding that there was no evidence to show that the alleged mortgagee of 1886 was in any way interested in the mortgaged premises, could not be taken as the basis of the judgment of the Court. The decrees might be said to be decrees in spite of that finding, and when the suits were dismissed as against the mortgagee of 1886, it was not open to him to challenge, by way of appeal, the finding of the Subordinate Judge upon the question of the validity of his mortgage. In this view of the matter, that finding does not in any way operate as res judicata. SeeRun Bahadur Singh v. Lucho Koer(1884) I.L.R. 11 Calc.301, 306,Nundo Lall Bhuttacharjee v. Bidhoo Mookhy Debee(1886) I.L.R. 13 Calc.17,Thakur Magundeo v. Thakur Mahadeo Singh(1891) I.L.R. 18 Calc.647,Peary Mohun Mukerjee v. Ambica Churn Bandopadhya(1897) I L.R. 24 Calc.900 and Concha v. Concha (1886) L.R. 11 App. Cas. 541, 552.25. We are not unmindful that in a litigation between the present defendants 9 to 12 on the one hand as plaintiffs, and defendants 1 to 4 (as mortgagors), defendants 5 to 8 (as puisne encumbrancers) and defendant 14 (as subsequent mortgagee), as defendants on the other hand, the present defendants 5 to 8 succeeded in obtaining a declaration that not only in respect of their bond of 1884, but also in respect of a sum of Us. 1,172 out of the consideration for their bond of 1887, they were entitled to priority over the bond of 1885. That question, however, appears to have been then decided between the present defendants 5 to 8 and 9 to 12; it is clear that there was no controversy in that litigation between defendants 5 to 6 and 14, the predecessor of the plaintiffs, in respect of this matter. It cannot, therefore, be suggested that the decision in that litigation in any way operates as res judicata for, as is now well settled, when an adjudication between defendants is necessary to give the appropriate relief to the plaintiff, there must be such an adjudication, and in such a case the adjudication will be res judicata between the defendants as well as between the plaintiff and the defendants; but for this, there must be a conflict of interest amongst the defendants, and the judgment must define the real rights and obligations of the defendants inter se; seeMagniram v. Mehdi Hossein Khan(1903) I.L.R. 31 Calc.95,Chajju v. Umrao Singh(1900) I.L.R. 22 All.386, Balam Bhat v. Narayan Bhat (1900) I.L.R. 25 Bom.74,Muhammad Kuni Rowthan v. Visvanathaiyar(1902) I.L.R. 26 Mad.337 and Cottingham v. Earl of Shrewsbury (1843) 3 Hare 627.26. No materials have been placed before us to show that the decisions in the suit, to which we have referred, was given under circumstances, which could possibly make it operate as res judicata between co-defendants. We must, consequently, hold that the decisions in the suits of 1894, brought by defendants 5 to 8 to enforce their mortgages of 1884 and 1887, operate as res judicata, and as those suits were dismissed, rightly or wrongly, against the mortgagee of 1886, the defendants 5 to 8 are not entitled to rely upon those mortgages as against the plaintiffs, who now represent the mortgagee of 1886. The true test to be applied to a case of this description is, are the defendants 5 to 8 entitled, after their defeat in the litigations of 1894, to enforce their mortgages of 1884 and 1887 against the mortgagee of 1886 ? If they are not, and if their remedy was by way of an appeal against the adverse decisions of 1894, they are obviously precluded from falling back upon their mortgages of 1884 and 1887. The effect of their purchase in execution of their own decrees has been to give them a title against their mortgagors alone, and as the suits, in which these decrees were made, were dismissed against the mortgagee of 1886, they have not obtained a valid title against him or his representative in interest. The Subordinate Judge was, in our opinion, clearly in error in this matter. He proceeded on the assumption that the effect of the dismissal of the suits of 1894 was to leave the parties in the position, which they would have occupied, if the mortgagee of 1886 had never been joined as a party defendant in those suits. This view is obviously unsound. The mortgagee of 1886 was brought before the Court; he challenged the validity of the mortgages of 1884 and 1887, as he was entitled to do, and his resistance was successful. Under these circumstances, the conclusion appears to be irresistible that the present plaintiffs may rightly claim the full benefit of the dismissal of the suits of 1894 and are entitled to enforce their security against the properties in the hands of defendants 5 to 8, precisely as if the mortgages of 1884 and 1887 had no real existence. The second ground advanced on behalf of defendants 5 to 8 must be overruled, and the first ground taken on behalf of the plaintiffs must consequently prevail.27. The third ground taken on behalf of defendants 5 to 7 raises the question, whether they are not entitled to priority over the mortgage of 1886, which the plaintiffs seek to enforce, in respect of the sum of Rs. 1,952, which formed part of the consideration of their mortgage of 1887. It is established by the evidence that out of the sum advanced by defendants 5 to 7 upon the mortgage of 1887, Rs. 100 was paid in satisfaction of the interest due upon a prior mortgage of the 15th December 1884 executed in favour of persons now represented by defendants 5 to 8; another sum of Rs. 1,072 was applied in discharge of interest due on a bond of the 29th March 1885, and a third sum of Rs. 780 was applied in satisfaction of the interest due on a bond of the 2nd June 1885. Upon these facts, it is argued by the learned vakil for defendants 5 to 7 that to the extent of these three sums of money, which were applied in satisfaction of interest due on three bonds earlier than that of the present plaintiffs, they are entitled to a declaration of priority. In support of this position, reliance is placed upon the cases of Gokaldas Gopaldas v. Puranmal Premsukhdas (1884) L.R. 11 I.A. 126; I.L.R. 10 Calc.1035,Gopal Chunder Sreemany v. Herembo Chunder Holdar(1889) I.L.R. 16 Calc.523 and Lomba Gomaji v. Vishvanath Amrit Tilvankar (1893) I.L.R. 18 Bom. 86.28. It is argued, on the other hand, by the learned vakil for the plaintiffs respondents that there are two objections to the right claimed by the defendants, each of which is fatal to their contention. It is pointed out, in the first place, that the decision of this question is barred by the principle of constructive res judicata, and it is contended, in the second place, that upon the admitted facts, the principle of subrogation has no possible application. In our opinion, the argument advanced on behalf of the appellants is not well founded, and their contention must be overruled. It is manifest that this claim for priority might and ought to have been set up in the litigation of 1894 in which the mortgage of 1887 was enforced. (Jones on Mortgages, Sections 1439-41 and 1589A, 6th edition, Vol. II, pages 397 and 526.) Indeed, as we have already pointed out, the mortgagees did set out in their plaint circumstances sufficient to form the foundation of the claim now advanced. It was not, however, pressed, and the suit appears to have been dismissed so far as the mortgagee of 1886 was concerned. There is, therefore, considerable force in the contention that it is no longer open to the mortgagees of 1887 to set up in the present litigation the claim for priority, which might and ought to have been adjudicated upon in the litigation of 1894. See Srigopal v. Pirthi Singh (1902) L.R. 29 I.A. 118; I.L.R. 24 AIL 429, Mahabir Pershad Singh v. Macnaghten (1889) L.R. 161. A. 107; I.L.R. 16 Calc. 682, Kameswar Pershad v. Rajkumari Ruttan Koer (1892) L.R. 19 I.A. 234; I.L.R. 20 Calc. 79. It is not necessary, however, to rely upon this ground, as a question might arise as to whether the doctrine of constructive res judicata is applicable where the subject-matters of the two suits are different: Surjiram Marwari v. Barhamdeo Persad (1905) 1 C.L.J. 337, 353 We are satisfied, however, that the second branch of the contention of the learned vakil for the respondent must be sustained. That contention, in substance, is two-fold, namely, first, that the doctrine of subrogation entitles a person to the benefit of a mortgage in favour of a stranger, either when he is compelled to pay it off to protect an interest of his own in the property mortgaged or by an agreement; and secondly, that in any event, the entire amount of a senior encumbrancer must be paid before subrogation can be claimed.29. The first of these points raises the question of the nature of subrogation and the principle on which it is founded. That principle is thus explained by Mr. Justice Sutherland in Ellis-worth v. Lockwood (1870) 42 N.Y. 89 "Subrogation or substitution by operation of law to the rights and interests of the mortgagee in the land is by redemption, and redemption is payment of the mortgage debt after forfeiture by the terms of the mortgage contract, so that really the subrogation or substitution by operation of law arises or proceeds on the theory that the mortgage debt is paid. If the holder of a bond assigned it to a party claiming a right to redeem, the latter is subrogated by the assignment to the mortgage debt and mortgage security and to the instrument evidencing such debt and security, and there is no room or occasion for subrogation by operation of law." Consequently, it may be said, in general, that to entitle one to invoke the equitable right of subrogation, he must either occupy the position of a surety of the debt or must have made the payment under an agreement with the debtor or creditor that he should receive and hold an assignment of the debt as security, or he must stand in such a relation to the mortgaged premises that his interest cannot otherwise be adequately protected. The foundation of the rule was elaborately examined in a recent case, Wilkins v. Gibson (1901) 113 Georgia 31; 38 S.E. 374, in which Mr. Justice Cobb stated the rule to be that a "Subrogation will arise only in those cases, where the party claiming it advanced the money to pay a debt which, in the event of default by the debtor, he would be bound to pay, or where he had some interest to protect, or where he advanced the money under an agreement, express or implied, made either with the debtor or creditor that he would be subrogated to the rights and remedies of the creditor." This distinction between the position of a person, who pays off a mortgage to protect an interest of his own and the position of another, who claims subrogation by agreement, is well marked, and is said to have been borrowed from the Civil Law, which recognised two kinds of subrogation, namely, "legal subrogation" which took place of right and without any agreement as such by the creditor and as a matter of equity, and "conventional subrogation" which was applied, where an agreement was made with the person paying the debt that he would be subrogated to the rights and remedies of the original creditor. See Howe's Studies in the Civil Law, 1905, page 256; see also Bank v. Tillman (1901) 106 Georgia 55, 31 S.E. 794, where the doctrine of conventional subrogation is examined. The case of Gokaldas Gopaldas v. Puran Mal Premsukhdas (1884) L.R. 11 I.A. 126 I.L.R. 10 Calc. 1035, where it was held that the purchaser of an equity of redemption, who had paid off the first charge, might use the first mortgage as a shield against mesne encumbrancers, the payment being made by a person who is under no personal obligation to pay, only to protect his own interest, furnishes an illustration of the former class of cases.The case ofJagatdhar Narain Prasad v. A.M. Brown(1906) I.L.R. 33 Calc.1133, furnishes an illustration of the second class of cases; whereas the decision of their Lordships of the Judicial Committee in Dinobundhu Shaw Chowdhry v. Jogmaya Dasi (1901) L.R. 29 I.A. 9; I.L.R. 29 Calc. 154 shows, the line dividing the class of cases, where no bargain is made when the money is advanced, and cases where the money is advanced on the understanding that the creditor should be subrogated to the position of the mortgagee. It is only in the first class of cases that the question of intention to keep the mortgage alive arises. The doctrine of subrogation is not applied for the mere stranger or volunteer, who has paid the debt of another, without any assignment or agreement for subrogation, being under no legal obligation to make the payment, and not being compelled to do so for the preservation of any rights or properties of his own. This doctrine is nowhere more clearly and concisely expounded than in the judgment of the Supreme Court of the United States in Etna Life Insurance Company v. Middleport (1887) 124 U.S. 525, where the principle laid down by Chancellor Johnson in Gadsden v. Brown (1843) Speers, Eq. (S. C.) 37 and by Chancellor Walworth in Sandford v. McLean (1832) 3 Page N.Y. 122 was adopted as well founded on reason. That principle is, that subrogation as a matter of right is never applied in aid of a mere volunteer. Legal substitution into the rights of a creditor for the benefit of a third person takes place only for his benefit, who, being himself a creditor, satisfies the lien of a prior creditor, or for the benefit of a purchaser, who extinguishes the encumbrances upon his estate, or of a co-obligor or surety, who discharges the debt, or of an heir, who pays the debts of the succession, Shin v. Budd (1862) 14 N.J. Eq. 234.. Any one, who is under no legal obligation or liability to pay the debt, is a stranger, and, if he pays the debt, he is a mere volunteer, Arnold Green (1889) 116 N.Y. 566. To the same, effect are the decisions in Crippen v. Chappel (1886) 35 Kansas 495; 57 Am. Rep. 187, Hough v. Etna Life Insurance Company (1870) 57 III. 318; 11 Am. Rep. 18 and Watson v. Wilcox (1876) 39 Win. 643; 20 Am. Rep. 63. The learned vakil for the respondents placed reliance upon passages from Sheldon on Subrogation, Sections 240-243, which fully bear out his contention, and the position is further strengthened by the expositions contained in Jones on Mortgages, Section 874(6th Edition, Vol. I, page 918), and Harris on Subrogation, Sections 792-797. If these doctrines, which appear to us to be based on principles of justice, equity and good conscience, are applied to the case before us, it becomes manifest that the claim put forward on behalf of defendants 5 to 7 is entirely unfounded. When a portion of the money advanced by them was applied in part satisfaction of the interest due on earlier bonds, it could not be said that they were compelled to make the payment to protect an interest of their own in the property mortgaged to them; much less could it be suggested that there was any agreement, express or implied, Upon which a claim for subrogation could be founded. There is a second answer, however, as the learned vakil for the respondents has pointed out, to this claim for subrogation. The sums were applied only in part satisfaction of the claim for interest due upon earlier bonds, and it is difficult to appreciate how, under such circumstances, a claim for subrogation could arise. The person, who makes the payment, cannot, by simply paying the interest as it accrues or paying or discharging a portion of the interest. which has already accrued, claim a right of subrogation. He must pay the entire amount of an incumbrance, which is senior to his own. This doctrine is based upon a perfectly intelligible principle; for as we have already explained, subrogation is by redemption, and, unless there is redemption, it is not easy to perceive how subrogation can take place, Merritt v. Hosmer (1858) 11 Gray (Mass) 276; 71 Am. Dec. 713, Street v. Beal (1864) 16 Iowa 68; 85 Am. Dec. 504, O'Reilly v. Holt (1877) 4 Woods C.C. 645; 18 Fed Cases 792, Carter v. Neal (1858) 24 Georgia 346"; 71 Am. Dec. 136. It is obvious that the contrary view would lead to endless difficulties. It would enable a person, who has made a part payment of the interest due on a mortgage security, to claim subrogation; would b.6 then occupy the position of a joint mortgagee with the person whose claim is partially satisfied? What would be his position with regard to interest subsequently accruing upon the prior mortgage, and how are the rights to be worked out if, as in the case before us, the prior mortgagees have already sued and enforced their security ? The rule, therefore, that before one creditor can be subrogated to the rights of another, the demand of the latter must be entirely satisfied, so that he shall be relieved from all further trouble, risk and expense, is based upon good-sense and ought to be adopted as applicable to the case before us, Sheldon on Subrogation,Sections 14,19,25,70and83; Harris on Subrogation,Section 29. To use the language in Hollingworth, v. Floyd (1807) 2 Harris & Gill (Maryland) 91 "it would not subserve the ends of justice to consider the assignment of an entire debt to a surety as affected by operation of law, when he had paid but a part of it and still owed a balance to the creditor, and the Court would not countenance such an anomaly as a pro tanto assignment, the effect of which would only be to give distinct interests in the same debt to both creditor and surety." This view is in no way inconsistent with that taken by the learned Judges of the High Court in Lomba Gomaji v. Vishvanath Amrit Tilvanlcar (1893) I.L.R. 18 Bom. 86. On the grounds, therefore, that the position of defendants 5 to 7 did not entitle them to claim the benefit of the principle of subrogation, and that partial payment was not sufficient to entitle them to succeed to the rights of the prior encumbrancer by subrogation, we must overrule the third ground upon which the decision of the Subordinate Judge is sought to be assailed.30. The fourth ground, upon which the decision of the Subordinate Judge is challenged on behalf of defendants 5 to 7 is that the plaintiffs are not entitled to claim interest at the rate specified in the mortgage of 1886, inasmuch as on the 18th June 1889, they entered into a compromise with their mortgagors, by which they undertook to reduce their claim for future interest to 6 per cent, per annum. In answer to this contention, it is argued on behalf of the plaintiffs respondents that the compromise in question is inoperative in law, as it was not registered underSection 17of the Registration Act. The facts, so far as a statement of them is necessary for the decision of this point, are not disputed before this Court. It appears that in 1899 the present defendant 14, the mortgagee under the bond of 1886, sued the mortgagors for recovery of interest due at the time of institution of that suit. On the 18th June 1889, a petition of compromise was filed on behalf of the parties. It recited that the plaintiffs had been paid Rs. 100 in cash, that the balance of Rs. 593 was to be paid within the 4th February 1890, and that upon failure to do so, interest would run upon the decretal amount at the rate of 60 per cent, per annum. The compromise further contained a term by which the mortgagee agreed to accept future interest on the entire amount of debt covered by the bond, at the rate of 6 per cent, per annum. This compromise was recited in the preamble to the decree, which was made in that litigation. The decree, however, was based on that portion only of the compromise, which related to the subject-matter of that suit, as is required bySection 375of the Code of Civil Procedure. No decree was made in respect of the covenant by the mortgagee to reduce the claim for future interest to 6 per cent, per annum. Upon these facts, it is contended on behalf of defendants 5 to 7 that the compromise is operative, though not registered, because it was recited in the decree. In support of this position reliance is placed upon the cases of Bindesri Naik v. Ganga Saran Sahu (1897) I. L.R. 20 All. 171; L.R,. 25 I.A. 9 and Raghubans Mani Singh v. Mahabir Singh (1905) I.L.R. 28 All. 78. It is argued, on the other hand, by the plaintiffs respondents that the petition of compromise, in so far as it related to matters beyond the scope of the suit, in which it was filed, required to be registered, and this view is sought to be supported by a reference to the cases of Pranal Anni v. Lakshmi Anni (1899) L.R. 26 I.A. 101; I.L.R. 22 Mad.508,Muthayya v. Venkataratnam(1901) I L.R. 25 Mad.551, Birbhadra Rath v. Kalpataru Panda (1905) 1 0.L.J. 388 and Patha Muthammal v. Esup Rowther(1906) I.L.R. 29 Mad. 365. In our opinion, the contention advanced on behalf of the plaintiffs respondents is well founded and must prevail.The point is really concluded by the decision of their Lordships of the Judicial Committee in Pranal Anni v. Lakshmi Anni (1899) L.R. 26 I.A. 101; I.L.R. 22 Mad. 508, the true effect of which was explained in Birbhadra Rath v. Kalpataru Panda (1905) 1 0. L.J. 388. After a careful examination of all the authorities on the subject, we adopt the view put forward in that case. A petition of compromise, in so far as it relates to properties in suit, does not require registration underSection 17of the Registration Act, and the decree, in so far as it gives effect to the settlement touching such properties, operates as res judicata. If it gives effect, however, to the settlement touching properties extraneous to the litigation, the decree is, to that extent, clearly without jurisdiction and is inoperative. In relation to these extraneous properties, the parties must fall back upon the petition itself, which cannot, without registration, effectively declare or create title to immoveable property exceeding Rs. 100 in value. The same view was adopted by this Court in the case of Kali Charan Ghosal v. Ram Chandra Mandal (1903) I.L.R. 30 Calc. 783. The case of Raghubans Mani Singh v. Mahabir Singh (1905) I.L.R. 28 All. 78, upon which much stress was laid on behalf of the appellants, appears to be based upon a misapprehension of the judgment of their Lordships of the Judicial Committee in Pranal Anni v. Lakshmi Anni (1899) L.R. 26 I.A. 101; I.L.R. 22 Mad.508, With all respect for the learned Judges, who decided that case, we find ourselves entirely unable to adopt their view, and we are supported in our conclusion by the decision of the Madras High Court inPatha Muthammal v. Esup Rowther(1906) I.L.R. 29 Mad.365,Muthayya v. Venkataratnam(1901) I L.R. 25 Mad.551 and Achuta Ram Raja v. Subbaraju (1901) I.L.R. 25 Mad.7. If the view adopted by the learned Judges of the Allahabad High Court in Raghubans Mani Singh v. Mahabir Singh (1905) I.L.R. 28 All. 78 is well founded, litigants may, as was pointed out in Birbhadra Rath v. Kalpataru Panda (1905) 1 C.L.J. 388, evade with impunity the provisions of the Registration Act, the Stamp Act, the Court-fees Act and the Civil Courts Act, which last defines the jurisdictions of different classes of Courts. We are unable to persuade ourselves to hold that this is what was intended by their Lordships of the Judicial Committee. It has not been disputed, and it cannot be disputed, that the petition of compromise in question purported to extinguish title to or interest in immoveable property of a value exceeding Rs. 100. We must consequently hold that it is inoperative, because it was not registered. The fourth ground taken on behalf of defendants 5 to 7 cannot consequently be supported.31. The first ground taken on behalf of the plaintiffs respondents, who have preferred a separate appeal, relates to the question of res judicata, and has already been disposed of in connection with the second ground taken on behalf of defendants 5 to 7.32. The second ground taken on behalf of the plaintiffs raises the question, whether defendants 5 to 7 would not be bound to account for the profits received by them during their possession of the mortgaged properties after their purchase at the execution sale, and whether these defendants are entitled to have interest at the contract rate specified in their securities, calculated after the dates of their respective decrees. Both these contentions would seem to be well founded, and it is sufficient to refer to the case of Ganga Das Bhattar v. Jogendra Nath Mitra (1907) 5 C.L.J. 315, which is entirely in accord with the decision of their Lordships of the Judicial Committee in Kedar Lal Marwari v. Bishen Pershad (1903) L.R. 31 I.A. 57; I.L.R. 31 Calc. 332. It is not necessary, however, to deal with this point in detail because, as we have already held, defendants 5 to 7 are not entitled to rely upon their mortgages of 1884 and 1887 as against the mortgage of 1886, which the plaintiffs seek to enforce. The plaintiffs are entitled to enforce their security precisely in the same manner as if the mortgages of 1884 and 1887 had never been created.33. The only point taken on behalf of defendants 9 to 12 raises the question, whether they are not entitled to their costs in the Court of first instance as well as in this Court. It is manifest that the case of the plaintiffs as against them has entirely failed and the learned vakil for the plaintiffs has not seriously resisted the claim for costs put forward on behalf of defendants 9 to 12.34. The result, therefore, is that Appeal No. 540 of 1904 preferred by defendants 5 to 7 fails, and must be dismissed. Appeal No. 566 of 1904 preferred by the plaintiffs must be allowed, and the decree of the Subordinate Judge modified to this extent, namely, the words "subject to the prior mortgage charge of the defendants 5 to 8 and" and "the mortgage decree of the defendants Nos. 5 to 8 and" shall be expunged. The cross objection of defendants 9 to 12 must also be allowed, and they will be entitled to their costs in the Court below. So far as the. costs of this Court are concerned, defendants 5 to 7 must pay the costs of the plaintiffs respondents in Appeal No. 540 of 1904, and the plaintiff appellants in Appeal No. 566 of 1904 must pay the costs of defendants 9 to 12. Only one decree will be drawn up in the two appeals, and, to avoid future difficulties, the decree must be self-contained without any reference to the decree of the Subordinate Judge. |
55b74a17-54c3-597c-8e25-de95ac26495c | court_cases | Kerala High CourtAneeshkumar vs The State Of Kerala on 22 June, 2013IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH
WEDNESDAY, THE 8TH DAY OF MARCH 2017/17TH PHALGUNA, 1938
Crl.Rev.Pet.No. 1572 of 2013 ()
--------------------------------
AGAINST THE JUDGMENT IN CRA 432/2011 of ADDL.SESSIONS JUDGE-
I,MAVELIKKARA DATED 22-06-2013
AGAINST THE JUDGMENT IN SC 494/2008 of ASSISTANT SESSIONS JUDGE,
CHENGANNUR
REVISION PETITIONERS/APPELLANT/ACCUSED NO. 2 & 3:
-------------------------------------------------------
1. ANEESHKUMAR, AGED 32 YEARS
S/O. SOMAN, KONARI PUTHUVAL VEEDU, KONUMADOM COLONY,
THEKKEKARA KIZHAKKUM MURI, PALLIPADU VILLAGE, ALAPPUZHA
DISTRICT.
2. JAYAN, AGED 36 YEARS
S/O. GOPALAKRISHNAN ACHARI, MALAYIL, THOPPIL PUTHEN
VEEDU, PARUMALA BHAGAM, PARUMALA MURI, KADAPRA VILLAGE,
ALAPPUZHA DISTRICT.
BY ADV. SRI.A.C.DEVY
RESPONDENT/RESPONDENT/COMPLAINANT:
------------------------------------------------
THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, KOCHI-31.
BY PUBLIC PROSECUTOR SMT.K.K.SHEEBA
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 08-03-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
K.P.JYOTHINDRANATH, J.
- - - - - - - - - - - - - - - - - - - - -
Crl.R.P.No.1572 OF 2013
- - - - - - - - - - - - - - - - - - - - - - - - - -
Dated this the 8th day of March, 2017
ORDERThis criminal revision petition is filed against the judgment of
conviction entered into by the court below in S.C.No.494/2008 on the
files of the Assistant Sessions Judge, Chengannur which was confirmed
in Crl.Appeal No.432/2011 by the Additional Sessions Judge I,
Mavelikkara. The appellants are the accused Nos. 2 and 3 in the
original crime. The conviction is underSection 399and402of IPC.
The petitioners are sentenced to undergo rigorous imprisonment for six
months underSection 399of IPC as well as to pay a fine of Rs.1,000/-.
UnderSection 402of IPC, the petitioners are sentenced to undergo
rigorous imprisonment for six months and to pay a fine of Rs.1,000/-.
Originally, the appellants were also convicted underSection 27of the
Arms Act which was set aside by the appellate court.Crl.R.P.No.1572/2013 22. The facts necessary for disposal of this revision petition is
as follows :Accused 10 in number were seen made preparation for
committing dacoity and they were found carrying dangerous weapons
like iron rod, sword stick for the purpose of committing dacoity on
14.5.2007 at about 4.15 a.m. at Kollakadavu junction in Mavelikara-Chengannur public road and thereby committed the above offences.3. The prosecution examined six witnesses and Exts.P1 to P8
and MO1 series and MO 2 were marked and thereafter convicted the
accused as stated above which was confirmed by the appellate court,
except the conviction underSection 27of the Arms Act. In this case,
FIR was registered by the Police on 14.05.2007 at 5.30 hours. It
reached the court on 14.05.2007 at 2.30 p.m.. It is a suo motu FIR.
According to the F.I.Statement, after patrol duty, when the police jeep
was coming back to the station at about 4.15 hours, when they reached
at Kollakadavu bridge on the middle of the bridge, the Police party saw
ten persons equipped with sword, iron rod, short stick etc. They saw the
accused in the light of the head light. It is further stated that the PoliceCrl.R.P.No.1572/2013 3followed and the C.I. of Police who were also nearby conducting
vehicle checking also joined and three persons were arrested. It is the
case that on arrest, they even threatened using the weapons. The names
were revealed and thereafter an inadmissible portion of the statement
made to the Police incorporated in the F.I.Statement. It is also stated
that the names of the other accused persons were also provided by the
accused who were arrested and the said names were also incorporated
in the F.I.Statement and the crime is registered. Upon the registration
of the said crime, an investigation is conducted. After investigation, on
6.9.2007, final report was filed against the accused. The court received
the charge and committed the matter to the Sessions Court which was
made over to the Assistant Sessions Judge, Chengannur and the
appellants herein were tried and convicted. Aggrieved by the
conviction, the appellants preferred appeal which was also not
successful. Hence this revision petition is filed.4. The main argument advanced before me is that the
ingredients of the offence is not made out. Even if, for argument sake
it is stated that the weapons were seized from the possession of theCrl.R.P.No.1572/2013 4revision petitioners/accused, it cannot be said that ingredients of the
offence are made out. It is the submission that it is a case where a
false case has been foisted against the revision petitioners herein. To
buttress the said argument, the learned counsel submitted before me
that as per the prosecution case, the incident occurred on the bridge
area. From there when they saw the Police coming, they ran away. It is
the case of the prosecution that on the vicinity, the Circle Inspector and
the party was also conducting checking of the vehicles. The S.I. of
Police and the C.I. of Police arrested the accused. It appears that the
accused were seen very near to the area allegedly where the C.I. of
Police and party were conducting vehicle checking. In that case, the
jeep will be on the side of the road and the presence of the Police party
will be apparent and evident. This aspect has to be considered while
appreciating the case. It is also submitted that the appreciation of the
evidence by the courts below is not correct.5. The learned Public Prosecutor submitted that only if there
is perversity or illegality, then only a re-appreciation is warranted. In
this case, the courts below appreciated the evidence and came to aCrl.R.P.No.1572/2013 5conclusion that the revision petitioners committed the offence. A
re-appreciation is not warranted especially when it can be seen that the
background of the accused were not clean.6. In this case, PW1 is a mahazar witness. He deposed that he
know accused Nos. 2 and 3 and he is an attestor to the mahazar and he
identified his signature therein. He further deposed that he can identify
the weapons seized from the accused and he identified MO1. He also
identified material object MO2 and during cross examination, he
deposed that he along with his friend was going to temple. He also
deposed that he understood the names of the accused while the Police
asked their name. PW2 is the Police Constable who was in the night
patrol duty and according to him, the accused were arrested after
chasing them and his evidence regarding confessional part incorporated
in the statement cannot be looked into. PW3 also is a Police Constable
who was in the patrol party. He also supported the prosecution and the
confessional part deposed to by this witness is not admissible in
evidence. PW4 is the Sub Inspector who led the patrol party and he
deposed regarding the incident and he further deposed that the accusedCrl.R.P.No.1572/2013 6were seen in the light of the jeep on the bridge area and they were
arrested and the confessional part deposed to by this witness is not
admissible in evidence. He further deposed that the crime is registered
and the weapons seized are forwarded to the court and he also
identified the weapons seized as MO1 and 2. PW5 is also an attestor to
the mahazar of seizure. He supported the prosecution. He identified
Accused Nos. 2 and 3. PW6 is the Police Officer who filed the charge.7. In this case, the main argument of the learned counsel is
that appreciation of the evidence is perverse. The facts now seem to be
proved before the court is that accused were arrested with weapons and
the version of the prosecution is that there were ten persons. This fact
is seen proved. The confessional part deposed to by the witnesses
cannot be looked into in law in the light ofSections 25and26of the
Evidence Act. Here is a case where the trial court as well as the
appellate court found that accused committed the offence. A re-
appreciation of the offence is ordinarily not warranted. But if the
ingredients of the offence is not made out, it will patently affect the
conviction. Under such circumstances, the sections under whichCrl.R.P.No.1572/2013 7conviction are entered into are perused.8.Section 399of IPC reads as follows :399: Making preparation to commit dacoity
Whoever makes any preparation for committing dacoity, shall be
punished with rigorous imprisonment for a term which may extend to
ten years, and shall also be liable to fine.9.Section 402of IPC reads as follows :402:Assembling for purpose of committing dacoity
Whoever, at any time after the passing of this Act, shall be one of
five or more persons assembled for the purpose of committing dacoity,
shall be punished with rigorous imprisonment for a term which may
extend to seven years, and shall also be liable to fine.10. The difference between Sections 399 and 402 appears to be
that under Section 402 mere assembling of 5 person or more without
preparation is enough i.e. preparation for committing dacoity is an
essential ingredient of Section 399, whereas under Section 402, an
assembly for the purpose of committing dacoity is sufficient i.e. an
assembly which can be for the purpose of committing dacoity commitsCrl.R.P.No.1572/2013 8an offence underSection 399of IPC only when some preparation for
the execution of the object of the assembly is done/committed. Here
the only aspect now stands proved is that there were about 10 persons.
The prosecution case is that they were assembled therein for the
purpose of committing dacoity. I have perused the questioning underSection 313of Cr.P.C. It is only a total denial. It can be seen that the
evidence of the Police Officers regarding arrest and seizure is
believable. The evidence of prosecution witness is that they assembled
for committing dacoity. When there are recovery of the weapons and if
they are assembled therein for any other purpose, it is the duty of the
said accused to bring out for what purpose they assembled therein i.e.
when five or more people are seen assembled with weapons in an odd
hour and they ran away when they saw the Police and the prosecution
case is that they were assembled therein for the purpose of committing
decoity, the ingredients of Section 402 can be treated as proved. But at
the same time, no evidence forth coming to show any preparation they
had made after such an assembly to commit an offence underSection
399of IPC or in other words, the preparation to commit the dacoity hasCrl.R.P.No.1572/2013 9to be proved by the prosecution. Such elements or ingredients to prove
the preparation is not therein i.e. this court relied upon the weapon
and the odd hour and the assembly to come to a conclusion that they
had committed an offence underSection 402of IPC. To come to a
conclusion that they had committed an offene underSection 399of
IPC, a further evidence regarding preparation is necessary, that is
lacking in this case. Hence it can be only stated that the conviction
underSection 399of IPC will not lie and hence it is hereby set aside.
The conviction underSection 402of IPC is hereby upheld.11. The next point to be considered is regarding the sentence.
After perusal of the judgment, it can be seen that even though an
offence under Section 399 is a major offence and Section 402 is a
minor one, six months imprisonment is imposed on both heads. Now
major offence has been found not committed by the appellants. There
is only a minor offence seen committed i.e. offence underSection 402of IPC. Under such circumstances, the sentence imposed is also
modified and reduced as simple imprisonment for three months underSection 402of IPC. The revision petitioners shall also pay a fine ofCrl.R.P.No.1572/2013 10Rs.1,000/- each with default simple imprisonment for one month.
Thus, the conviction underSection 399of IPC is hereby set aside. The
conviction underSection 402of IPC is upheld. The sentence is
modified as simple imprisonment for three months and to pay a fine of
Rs.1,000/- with default simple imprisonment for one month. The
revision petitioner is entitled for set off.The revision petition is partly allowed as above.K.P.JYOTHINDRANATH
JUDGE
sv. |
b848bd58-44a8-58b4-836d-9419d436b141 | court_cases | Central Administrative Tribunal - ErnakulamM.Abdul Rasheed vs Union Of India Represented By The ... on 26 November, 2008CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A.No.100/08
Wednesday this the 26th day of November 2008
C O R A M:
HON'BLE Mr.JUSTICE K.THANKAPPAN, JUDICIAL MEMBER
HON'BLE Dr.K.S.SUGATHAN, ADMINISTRATIVE MEMBER
M.Abdul Rasheed,
S/o.Mohammed Ismail,
Senior Clerk, General Branch,
O/o. Divisional Railway Manager,
Southern Railway, Trivandrum. ...Applicant
(By Advocate Mr.Ahzar)
Versus
1. Union of India represented by the Secretary,
Government of India, Ministry of Railways,
Rail Bhavan, New Delhi.
2. The General Manager,
Southern Railway,
Park Town P.O., Chennai - 3.
3. The Divisional Railway Manager,
Southern Railway, Trivandrum Division,
Trivandrum -14.
4. The Divisional Personnel Officer,
Southern Railway, Trivandrum Division,
Trivandrum - 14. ...Respondents
(By Advocate Mr.Thomas Mathew Nellimoottil)
This application having been heard on 26th November 2008 the
Tribunal on the same day delivered the following:
O R D E RHON'BLE Mr.JUSTICE K.THANKAPPAN, JUDICIAL MEMBER
The applicant, now working as Senior Clerk in the Railways,
approached this Tribunal underSection 19of the Central Administrative
Tribunal Act, 1985 praying that the respondents may be directed to grant
the 2nd financial upgradation to the applicant as he had completed 24
years of service on 19.1.2007. The short facts which are necessary for the
consideration of the O.A are as follows:-2. Having been appointed as a Rakshak in the Railway Protection
Force (RPF in short) and having been subsequently appointed as Clerk in
the grade of Rs.3050-4590/-in the General Branch, Trivandrum after
completion of 12 years of service, he was allowed the1st financial
upgradation benefits under the Assured Career Progression Scheme
(ACPS in short) with effect from 1.10.1999 as per the order dated
19.12.2003. As the applicant has completed 24 years of service as on
20.1.2007, he is entitled for the 2nd financial upgradation, contended the
applicant.3. After having admitted the Original Application, the respondents have
filed their reply statement and in the reply statement the stand taken is that
the applicant was actually appointed in the service only on 25.9.1983 and
not 19.1.1983 as contended by the applicant and paragraph 10 of the reply
statement reads as follows :"10. The averments in paragraph 4(5) that the applicant has
completed 24 years of service on 20.1.2007 is not correct and
hence, denied. As his date of appointment is 25.9.1983, the
date of completion of 24 years of service is only 24.9.2007. As
per the file noting, his date of appointment is 25.9.1983. The
applicant, in his application dated 28.10.2008 for issue of
Second Class Privilege Pass, has mentioned his date of
appointment as 19.1.1983."4. We have heard both the counsel appearing on either side and had
perused the documents produced before this Tribunal. Learned counsel
appearing for the applicant submits that as per the service records the
applicant has been appointed on 19.1.1983 and if so, he should have been
given the 2nd financial upgradation on 20.1.2007 as per the ACPS. To
substantiate his claim, the applicant has now produced a copy of the
application for final withdrawal of Provident Fund dated 30.6.2008 and as
per this document the actual appointment date of the applicant he claims
as on 19.1.1983. If so, the stand taken by the respondents in the reply
statement is not correct. Counsel appearing for the respondents relying on
the statement contends that as per the service records now available with
the Department the applicant was appointed in the service only on 25th
September 1983. According to the counsel for the respondents the
applicant is entitled for the 2nd financial upgradation only on 24.9.2007 that
is now assigned to him also. Considering the rival contention now raised
before us, we are of the view that as the stand taken in the reply statement
that the service records of the applicant are not available in the
Department, the only course to be followed by us is to see the records now
produced by the applicant showing that his date of entry in the service as
19.1.1983. If so, this is a fact to be verified by the Department and to take
a decision in the matter. While considering these matters the Department
may consider the fact that the applicant was originally appointed as a
Rakshak in the RPF and, if any service records are available with the RPF
that also may be verified for deciding the issue in question. Considering all
these aspects and documents now produced by the applicant before us,
the respondents have to consider the case afresh and pass appropriate
order thereon within a timeframe.5. Accordingly, the O.A is disposed of by directing the respondents to
consider the entire documents once again produced by the applicant as
well as the records available with the Department and also the documents,
if any, which are now available with the RPF office. The final orders in this
matter shall be passed as early as possible, at any rate, within a period of
three months from today. It is also informed to us that some arrears with
regard to the 1st financial upgradation was also due to the applicant. That
shall be disbursed to the applicant forthwith. With the above directions,
the O.A is disposed of to the extent indicated. There shall be no order as
to costs.(Dated this the 26th day of November 2008)
K.S.SUGATHAN K.THANKAPPAN
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
asp |
7b8ff4ad-d950-5830-8bc7-f48a851a6f74 | court_cases | Allahabad High CourtManoj Kumar Singh Son Of Sri Kukhram ... vs State Of U.P. Through Principal ... on 13 July, 2007Equivalent citations: 2007(4)AWC3696Author:Arun TandonBench:Arun TandonJUDGMENT
Arun Tandon, J.1. One Gorakhnath Jaiswal was a judgment debtor. Appeal filed by him was also dismissed, the matter thereafter was taken to the Hon'ble Supreme Court. During the pendency of the Special Leave Petition orders were issued by the Hon'ble Supreme Court directing return of the money which Gorakhnath Jaiswal had withdrawn during the pendency of the proceedings. The amount was 34 lacs. The Hon'ble Supreme Court on 22.03.1999 issued following directions:In so far as the property to Gorakhnath Jaiswal is concerned, we direct Gorakhnath Jaiswal to appear in person or through Pairokar before the District Judge, Ghazipur, on the date fixed by him for auction of the property so as to assist the Court in identifying the property to enable it to be put to auction in terms of the earlier orders of this Court.2. Accordingly the property of Gorakhnath was put to auction for realization of the money under orders of the Hon'ble Supreme Court.3. In the auction so held no one participated. The matter came up for consideration before the Hon'ble Supreme Court on 30.07.1999. When the offerers received by Gorakhnath privately were Drought to the knowledge of the Court, the Hon'ble Supreme Court on 30.07.1999 passed the following orders;From the report submitted by the District Judge, Ghazipur it appears that when the properties of Goraknath Jaiswal were sought to be put to auction, no person appeared to participate in the auction on the appointed date and time. Learned Counsel for Gorakhnath Jaiswal submits that nobody had probably appeared because of water logging and rain etc. Learned counsel states that some private parties have agreed to buy portions of the land and he has received six drafts in the sum of Rs. 50.000/-, 25,000/- 2,25,00/-, 2,25,000/-, 25,000/- and 25,000// totalling Rs. 5,15.000/- and that those drafts are in the name of the Registrar of the Supreme Court, We grant him the permission. This fact shall be brought to the notice of the District Judge, Ghazipur, before who Gorakhnath Jaiswal shall appear in person or through counsel in the week commencing 9th August, 1999 when further orders shall be obtained from the District Judge. Ghazipur with regard to the balance property etc.4. Accordingly the matter was considered by the District Judge, Ghazipur on 11.10.1999 and orders were passed. The relevant part of this order reads as follows:The remaining land has to be sold to satisfy the said amount. The parties before me admit and agree that there are private buyers who are ready to purchase the remaining land. They also have requested that sale by that way as done earlier may be permitted. The permission is granted The plaintiff's side has to arrange the sale to private persons and submit the drafts of the relevant amounts in this Court within a month. The Hon'ble Supreme Court may be informed accordingly.5. It is admitted to the petitioner that certain portion of the land belonging to the Gorakhnath Jaiswal has been purchased privately in pursuance to the permission granted by the District Judge as quoted herein above. In order to evade payment of stamp duty the petitioner did not submit any document for its registration qua the transfer of the property.6. With the help of the order of the District Judge dated 11.10.1999 an application for mutation in record qua the property sold was made.7. This mutation application has been treated as an instrument and on the value of the property transferred, stamp duty has been demanded. The Collector Gghazipur under his order dated 06.11.2004 determined Rs. 85,040/- as the stamp duty payable and further Rs. 1,70,000/- was imposed as fine.8. Vide order dated 24.5.2003 the petitioner made an application for recall of the order on the ground that it was ex parte. He thereafter made an application for transfer of the proceedings before Inspector General, Ghazipur, The application was allowed and the matter was transferred to the Court of Collector Stamp.9. The Collector Stamp vide his order dated 06.11.2004 re-affirmed the demand after affording opportunity to the petitioner.10. The petitioner filed an appeal underSection 56(1)of the Indian Stamp Act which was numbered as Appeal No. 18 of 2004. The Appeal has also been dismissed under the order of the Commissioner dated 24.1.2006. These orders are being questioned on the following ground:(a) The sale of the property has been effected with the. permission of the Court and, therefore, no stamp duty is payable(b) Even otherwise stamp duty can be demanded only on the value of the transaction as recorded and not on the market value of the property in view ofArticle 18of Schedule 1-B to the Indian Stamp Act as applicable in the State of Uttar Pradesh.(c) Lastly it is contended that property has been purchased through court auction, therefore, no stamp duty can be demanded.In support thereof Counsel for the petitioner has also placed reliance upon the judgment of the Supreme Court ,Municipal Corporation of India v. Pramod Kumar Gupta11. I have heard counsel for the parties and have gone through the records of the case.12. The contentions raised on behalf of the petitioner are totally misconceived. From the orders of the Hon'ble Supreme Court as well. as that of the District Judge quoted above it is apparently clear that the effort made by the Court to put the property of Gorakhnath Jaiswal to public auction did not fructify. Therefore, Gorakhnath Jaiswal privately received offers for sale of his property.13. The Supreme Court considering the request of Gorakhnath Jaiswal granted such permission for private sale. No public auction has taken place. The permission granted by the Supreme Court as well by the District Judge for sale of property of Gorakhnath Jaiswal through private negotiations cannot be termed as a sale by public auction through court of law. The contention raised on behalf of the petitioner is, therefore, rejected.14. This Court records that the purchase of the property by the petitioner is only through private negotiation and on instruments recording such sale stamp duty is to be charged in accordance with the..Indian Stamp Act.15. So far asArticle 18ofSchedule I-B to the Indian Stamp Actis concerned, it is worthwhile to refer to the language of the said Article for ready referenceArticle 18is being quoted below:18. Certificate of Sale-(in respect of each property put up as a separate lot and sold), granted to the purchaser of any property sold by public auction by a Court, or by an officer authority or body empowered under any law, for the time being in force, to sell such property by public auction and grant the certificate.16. From the aforesaid Article it is apparently clear that purchaser of a properly through public auction alone is covered under the said Article. The sale certificate issued in favour of a purchase through public auction by the Court of Law/Authority alone is to be charged with stamp duty provided byArticle 18of Schedule 1-B. It is admitted on record that no sale certificate was ever issued in favour of the petitioner nor he had purchased the property by public auction. Therefore, in the opinion of the CourtArticle 18of Schedule 1-B would have no application. Not all sales effected with the permission of the Court like the one in the facts of the present case are covered byArticle 18of Schedule 1-B. The contention on behalf of the petitioner is, therefore, rejected.17. So far as the judgment of the Hon'ble Supreme Court is concerned reference may be had to paragraph 4 of the judgment wherein the issue as to what will constitute an instrument for the purposes of levy an stamp duty has been explained with reference to the definition of 'instrument' as contained in theIndian Stamp Act. The Hon'ble Supreme Court has held that a certificate under Order 21 Rule 94 of the Civil Procedure Code cannot be termed as instrument therefore, held such certificate cannot be subject matter of theIndian Stamp Act. No certificate has been issued in favour of the petitioner by any Court of law in the facts of this case. The said judgment does not support the case of the petitioner and is clearly distinguishable.18. Since the petitioner had not presented any document qua transfer of the title over the property in question and made an application with the help of the order of the Courts suggesting a transfer by the Court, the authorities have rightly treated the mutation application as an instrument and have therefore, has rightly demanded the stamp duty.19. This Court may also record that since there was a deliberate attempt on the part of the petitioner to avoid payment of Stamp Duty the penalty levied alone does not warrant any interference.20. In view of the said conclusion the writ petition is dismissed. |
5c9f5b20-9ce6-56a6-921b-a9d10d9ef6fc | court_cases | Patna High Court - OrdersVinay Kumar @ Vinay Kumar Gor & Anr vs The State Of Bihar on 9 July, 2012Author:Gopal PrasadBench:Gopal PrasadPatna High Court Cr.Misc. No.28305 of 2011 (7) dt.09-07-2012
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No. 28305 of 2011
======================================================
1. Vinay Kumar Sah @ Vinay Kumar Gor,
2. Manoj Kumar @ Manoj Kumar Gor.
.... .... Petitioner/s
Versus
The State of Bihar
.... .... Opposite Party/s
======================================================
CORAM: HONOURABLE MR. JUSTICE GOPAL PRASAD
ORAL ORDER
7 09-07-2012Heard learned counsel for the petitioners and
learned counsel for the State.This is a petition for grant of anticipatory bail in a
case underSections 420,406,409,465,468and471/34of
the Indian Penal Code.Learned counsel for the petitioners submits that the
petitioners used to send unemployed youth to foreign
country through valid VISA. Had the VISA would have
been forged they would have been arrested at the Airport.Hence, having regard to the facts and circumstances
of the case, let the above named petitioners be released on
anticipatory bail in the event of their arrest or surrender
before the learned court below within a period of four
weeks from today on furnishing bail bond of Rs.10,000/-
(ten thousand) each with two sureties of the like amount
each to the satisfaction of learned Chief Judicial Magistrate,Patna High Court Cr.Misc. No.28305 of 2011 (7) dt.09-07-2012Gopalganj in connection with Bhorey P. S. Case No. 246 of
2010, subject to the conditions as laid down underSection
438(2)of the Cr. P. C.
(Gopal Prasad, J.)
Kundan/- |
7e02254a-6ecf-5b18-b1bf-3cd77dd3d2ea | court_cases | Calcutta High Court (Appellete Side)Srimanta Kumar Paul vs The State Of West Bengal & Ors on 27 June, 2013Author:Debasish KarguptaBench:Debasish Kargupta1
27.06.2013.
rc
W.P. No. 18308 (W) of 2013
Srimanta Kumar Paul
Versus
The State of West Bengal & Ors.
Mr. Shaktipada Jana ... For the Petitioner.
Mr. P.K.Bhattacharjee ... For the State
Affidavit‐of‐service filed on behalf of the petitioner in Court
today be kept with the record.
This writ petition is filed by the writ petitioner for a direction
upon the respondent authorities to pay interest on gratuity for belatedpayment of the same.Having heard the learned Counsel appearing for the respective
parties and also considering the facts and circumstances of the case, I
find that the petitioner was an Assistant Teacher of Debnagar
M.D.Higher Secondary School, District‐ South 24‐Parganas and the
petitioner retired from the above service on June 30, 2012 on attaining
the age of retirement on superannuation.The payment was made to the petitioner on the basis of the
Pension Payment Order on May 15, 2013.The point of law, which is involved in this writ application, has
already been settled by a judgment delivered by a Single Bench of this
Court in W.P. 10750 (W) of 2007 on July 9, 2008 in the matter of Abha
Acharya -vs‐ State of West Bengal & Others. In the above case the
petitioner was a primary school teacher and there was delay in
releasing his gratuity money. Operative portion of the above decision is
quoted below:‐
"Following the said Judgment and/or Order, I
dispose of W.P. No. 1867 (W) of 2007 on 04.04.2008 and
in other similar matters, I observed that since the issue2was similar, the Order that I had passed in the said
W.P. No. 1867 (W) of 2007 should govern those cases
also.However today when this huge pile of cases were heard, a
submission was made which was not made in the cases
before me referred to above, and which was to the effect
that there cannot be any adjudication on the question as
to who was responsible for delay in matters pertaining to
payment of gratuity because the entitlement to gratuity
is automatic and is to be paid on the very day the person
retires. Even the learned Advocate General did not
dispute this contention and very frankly and fairly stated
that so far as the gratuity is concerned, it has to be paid
on the date the person retires with the only exception
that it can be withheld in cases where a departmental
action is pending against the concerned employee."
On the basis of the above observation, direction was given to the
respondent authority to pay interest of gratuity at the rate of 10% per
annum. I do not find any reason for disagreeing with the above
decision. Accordingly, I direct the respondent authority to give 9%
interest per annum on the gratuity amount paid to the petitioner for a
period from the date of retirement of the petitioner up to the date of its
actual payment. Such payment shall be made within 90 days from the
date of communication of this order along with copy of this writ
application upon the Director of Pension, Provident Fund and Group
Insurance, Government of West Bengal as also the concerned Treasury
Officer.It is further made clear that failure on the part of the respondent
authority to pay the aforesaid interest within the stipulated time, an
additional interest at the rate of 2% per annum shall be paid to the
petitioner.It is necessary to point out that the rate of interest is fixed at 9%
per annum taking into consideration the highest rate of interest payable
by a nationalised bank on fixed deposit.3The writ petition, is, thus, disposed of.However, there will be no order as to costs.Urgent photostat certified copy be supplied to the parties, if
applied for, on priority basis.( Debasish Kar Gupta, J. ) |
01b0970b-cbfa-5828-afc5-1e9021af898c | court_cases | Customs, Excise and Gold Tribunal - DelhiM/S Udal Organics (P) Ltd. vs Cce, Kanpur on 20 March, 2001Equivalent citations: 2001(132)ELT147(TRI-DEL)ORDERP.G. Chacko1. The brief facts of the case are that the appellants, who were engaged in the manufacture and exports of Zinc Oxide, filed Shipping Bill No. 1490 dated 26.11.98 for export of 205500 Kgs. of Zinc Oxide (in 600 bags) under claim for duty drawback, that they claimed a total amount of Rs.2,46,000/- as drawback @Rs.12 per Kg., that, on 100% weighment, only 9082 Kgs. (in 400 bags) of Zinc Oxide were found to have been produced for exportation as against the declared quantity of 20500 Kgs., that the said quantity of 9082 Kgs. of the goods was seized by the Customs officers who believed that the goods were attempted to be improperly exported and hence liable to confiscation, that the appellants waived show-cause notice and presented themselves for personal hearing on 30.11.98, that upon such hearing, the Dy. Commissioner of Customs passed order dated 7.12.98 confiscating the confiscating the aforesaid 9082 Kgs. of Zinc Oxide underSection 113(i)of the Customs Act with option for redemption on payment of fine of Rs.1.5 lakhs ans also imposing on the party a penalty of Rs.5 lakhs underSection 114(iii)of the Act, and that order of the Dy. Commissioner was upheld by the Commissioner (Appeals) in the appeal filed by the party. Hence the present appeal before the Tribunal.2. Carefully examined the records and heard both sides.3. Arguing for the appellants, 1d. Advocate Sh. Bipin Garg submits that the lower authorities finding of mis-declaration of quantity of export goods in Shipping Bill is unsustainable. He explains that the appellants had, in their invoice issued on 26.11.98 at the time of clearance of the goods from their factory, clearly stated Registration Number of two trucks for transportation of the goods; that Sh. R.K. Yadav, Director of the Company had, in his statement recorded by the Customs officers, explained that 400 out of the 600 bags were transported in truck No. UP 78 N-2082 and remaining 200 bags were transported in the other truck No. UHH 98; that he had further explained that the latter truck carrying 200 bags of Zinc Oxide could not reach along with the former truck at the Inland Container Depot (ICD) on account of a break-down of the vehicle on its way and that, at the time of weighment of the goods, only the 400 bags of Zinc oxide were available. Ld. Advocate further submits that the aforesaid 200 bags of Zinc Oxide were also brought to the ICD on the next day (27.11.98). These facts and circumstances, according to counsel, would clearly indicate that there was no attempt on the part of the appellants to mis-declare the quantity of export goods for fraudulent purpose of higher drawback. Regarding the finding of the lower authorities that the appellants had even mis-declare the weight of Zinc Oxide contained in the 400 bags, the Counsel submits that the weight of the goods in their factory could not be taken on account of their weighbridge being out of order and the same was, therefore, taken on a weighbridge outside the factory as evidenced by copies of the certificates dated 26.11.98 issued by M/s Eastern Dharam Kanta available on record. Counsel submits that the appellants were willing for reconciling any such difference in weight found at the ICD by accepting weighment results and that such willingness was duly intimated to the officers by Sh. Yadav in his statement. In these facts and circumstances, there was no warrant for concluding that the appellants had mis-declared the quantity of the goods with fraudulent intention to claim drawback against a quantity of 20500 kgs. He, therefore, submits that the confiscation of the 9082 Kgs. of the goods and the imposition of penalty on the party were not justifiable. He further submits that the quantum of redemption fine imposed is dis-proportionate to the value of the quantity of 9082 Kgs. of Zine Oxide. He has a further case that the quantum of penalty imposed is also exorbitant. He, therefore, prays for setting aside the orders of the lower authorities and allowing the appeal.4. Ld. JDR, Sh. Swatantra Kumar opposes the above arguments. He submits that the appellants were at the material time operating under the self Removal Procedure and that they filed the Shipping Bill under drawback claim themselves and not though any CHA. It was their liability to produce the declared quantity of goods for exportation. They produced only 400 bags containing 9082 Kgs. of Zinc Oxide. Their conduct indicated a clear intention to export 9082 Kgs. of Zinc Oxide and get away with drawback of duty on the basis of the value of the declared quantity of 20500 Kgs. Ld. JDR further submits that the remaining quantity of goods for exportation. They produced only 400 bags containing 9082 Kgs. of Zinc Oxide. Their conduct indicated a clear intention to export 9082 Kgs. of Zinc Oxide and get away with drawback of duty on the basis of the value of the basis of the value of the declared quantity of 20500 Kys. Ld. JDR further submits that the remaining quantity of Zinc Oxide contained in the 200 bags was attempted to be diverted to the domestic market and that it was only when their fraudulent intention are exposed by physical examination and weightment of the goods at the ICD that they tried to cover up the matter by bringing the 200 bags to the ICD on the next day. There was no satisfactory answer to the charge of mis-declaration of quantity of export goods in the Shipping Bills. Therefore, 1d. JDR submits, the confiscation of the goods and imposition of penalty on the appellants were quite justifiable. He prays for rejecting the appeal.5. I have carefully examined the submissions.Section 50of the Customs Act requires presentation, by exporter, of a Shipping Bill for the purpose of exportation of his goods in any vessel or aircraft. While presenting such Shipping Bill, the exporter shall make and subscribe to a declaration as to the truth of the contents of the Shipping Bill. In the instant case,admittedly, the appellants presented their Shipping Bill for exportation of a quantity of 20500 Kgs. of Zinc Oxide valued at Rs.4,85,445/- claiming drawback of duty to the extent of Rs.2,46,000/-. The quantity of Zinc Oxide presented at the time of filing of the Shipping Bill at the ICD was admittedly only 9082., on which the drawback as worked out by the adjudicating authority was only to the extent of Rs.1,08,984/-. These facts are not disputed. The appellant's case is that the remaining quantity of Zinc Oxide could not be produced at the ICD along with the above quantity of 9082 Kgs. at the time of filing of the Shipping Bill on account of breakdown of the truck.That quantity was produced only on the next day. I find that the same was done only after the Customs authorities proposed to take action for confiscation of the aforesaid quantity of 9082 Kgs. of goods and for imposition of 9082 Kgs. of goods and for imposition of penalty on them. The requirement of law was to produce the export goods, of the quantity and value declared in the Shipping Bill, before the Customs authorities at the time of filing of the Shipping Bill. Had the appellants any intention to export the entire quantity of 20500 Kgs. of Zinc Oxide declared in the Shipping Bill, they would have presented the Shipping bill only after the entire quantity of the goods reached the ICD. It, therefore, appears that the appellants had no intention to produce the 200 bags of Zinc Oxide for exportation against the Shipping Bill. In other words, a fraudulent attempt to claim higher drawback to the extent of Rs.1,37,016/- by mis-declaring the quantity of Zinc Oxide in the Shipping Bill is manifest on the fact of even the admitted facts of the case. Sh. Yadav's statement does not appear to have cleared the position any better. I am, therefore, not able to find fault with the decision of the lower authorities to confiscate the aforesaid quantity of 9082 Kgs. of Zinc Oxide and to penalise the exporter. Further, having regard to the provisions ofSection 125of the Customs Act, I find that the quantum of redemption fine imposed i lieu of confiscation is only reasonable. However, a penalty of Rs. 5 lakhs appears to be harsher than what is warranted in the facts and circumstances of the case. I, therefore, reduce the quantum of penalty from Rs.5 lakhs to Rs.3 lakhs having regard to the facts and circumstances.The orders of the lower authorities will stand modified to this extent only.6. The appeal is disposed of in the above terms. |
fbd1c913-d016-566d-bcb9-832e2f217b53 | court_cases | Madhya Pradesh High CourtThe State Of M.P. vs Willam Mugambo Judgement Given By: ... on 3 December, 2013Criminal Appeal No.1184/2004
03.12.2013
Shri Sameer Chile, Govt. Advocate for the
appellant/State.
None for the respondent.Heard on the question of admission.
It reveals from the proceedings that since 2004,
despite repeated efforts, the respondent has not been
served. In these circumstances, the matter is heard with
the assistance of Government Advocate appearing on
behalf of the appellant.I have perused the impugned judgment dated
27.01.2004 passed by Judicial Magistrate First Class,
Chhatarpur alongwith the record of the trial Court.The respondent has faced a trial underSections 420,467,468and471of the I.P.C. and has been acquitted by
the trial Court from the aforesaid offences vide impugned
judgment.It reveals from the record that respondent at the very
beginning took the defence that he has not fabricated the
travelers cheque. He further took the defence that he
himself was deceived by the agency who issued the so
called false and fabricated cheque.On appreciation of evidence on record, the trial Court
reached to the conclusion that the prosecution failed to
proved that the alleged fabrication of cheque was made by
whom. In these circumstances, the respondent has not
deceived anyone, he has not committed forgery or cheating
and further held that he has not used the travelers cheuqe
as genuine, for having reason to believe that the same was
forged.In these circumstances, there is no illegality in the
judgment passed by the trial Court. Consequently, the
appeal fails and is dismissed at motion stage itself.Record of the trial Court be sent back along with a
copy of this judgment for compliance and necessary
action.(G.S. Solanki)
Judge
gn |
7fee4f69-438e-5a2c-82d3-7ab1b4652181 | court_cases | Allahabad High CourtBhagwana Singh And Ors. vs Gaon Sabha Village Paijaniya on 9 March, 2006Equivalent citations: 2006(2)AWC1684, AIR 2006 (NOC) 1327 (ALL), 2006 (3) ALL LJ 291, 2006 A I H C 2140, (2006) 100 REVDEC 620, (2006) 2 ALL WC 1684, 2006 ALL CJ 2 1307Author:Umeshwar PandeyBench:Umeshwar PandeyJUDGMENT
Umeshwar Pandey, J.1. Heard learned Counsel for the parties.2. This petition challenges the order of trial court as well as the appellate court whereby the plaintiffs' application for temporary injunction under Order XXXIX, Rules 1 and 2,C.P.C. has been rejected.3. Learned counsel contends that the land in question was subject of an allotment by Gaon Sabha about which certain lease amount was paid by the petitioners and they continue in possession. The proceedings started against the petitioners under Section 122B of U.P. Z.A. and L.R. Act (hereinafter referred to as the 'Act') were misconceived and beyond ''jurisdiction as the land in question is 'abadi' land and the jurisdiction of Asstt. Collector under Section 122B of the Act, does not extend over such abadi land. Learned counsel in the aforesaid context has further added that the suit for permanent injunction naturally involves the declaration of title over the disputed property and in such suit the orders of the authorities, passed under Section 122B of the Act, would not be of much consequence in the face of Sub-section (4D) of Section 122B of the Act. Learned counsel has placed reliance upon the case law of Likhi Ram aliasMoola and Anr. v. State of U.P. and Ors.2000 (1) AWC 521 : 2002 (93) RD 126 ; Shankar Saran and Ors. v. State of U.P. and Ors. 1987 All LJ 877 and Kail Charan v. Additional District Magistrate, Agra and Ors. 2000 (2) AWC 1669 : 2000 (91) RD 339.4. Vide Annexures- 3 and 4, it is demonstrated on the record that the petitioners-plaintiffs have been directed under Section 122B of the Act for their eviction from the disputed portion of plot No. 398, area 0.045 hectare. The revision filed against that order before the Collector has also been dismissed and these orders have become final. It is true that this Court in the aforesaid cases of Shankar Saran (supra), Likhi Ram (supra) and Kali Charan (supra) has made it quite specific that the findings recorded under Section 122B of the Act, are such findings, which do not directly deal with the determination of title of a person against whom the dispossession has been claimed or the applicant Gaon Sabha which seeks for the eviction and dispossession. The suit for declaration of title by the aggrieved party is very much permissible under Sub-section (4D) of Section 122B of the Act before a competent court. But then for the purposes of finding out if the petitioners-plaintiffs have a prima facie case for grant of temporary injunction, the findings recorded by the Assistant Collector or the Collector in this regard cannot be said to be irrelevant. The aforesaid cases do not propound anything to this effect. Of course, if in a suit for declaration of title over the properties, it is found at the time of its final disposal that the plaintiffs have their title over the property, the same can be declared and relief can be granted by the Court. But that is only at the stage of final disposal of the suit. In the first place, the present suit is not a declaratory suit. It is a pure and simple suit for permanent injunction in which a prayer for temporary injunction has also been made under Order XXXIX, Rules 1 and 2,C.P.C. For the purposes of grant of such temporary injunction in favour of the plaintiffs, the Court has to consider its three paramount aspects (i) whether the plaintiffs have prima facie case; (U) have balance of convenience in their favour for grant of such temporary injunction and (iii) if they shall entail irreparable injury, which cannot be adequately compensated by one of damages in case their prayer for such temporary injunction is refused. If all these three conditions are found favourable with the plaintiffs, in that case only, the courts are supposed to grant temporary injunction and not otherwise. It is already referred to above that the suit of the petitioners is not in the form of a declaratory suit. The petitioners while claiming the title over the disputed land have given only documentary evidence in Annexure-6, which is just a receipt of deposit of some premium amount towards the allotment of the portion of disputed plot No. 398. In addition to this, the petitioners-plaintiffs have claimed their possession over the property since 1970. This possession of land held by the plaintiffs, was subject of challenge by the respondent-Gaon Sabha in the proceeding under Section 122B of the Act in which the eviction orders have been passed by the Assistant Collector and the revision of the petitioners has also been dismissed by the Collector. Therefore, the copies of these orders filed on record being Annexures- 3 and 4 prima facie go to show that the possession of the plaintiffs over the land in question has been illegal. If the plaintiffs-petitioners had to prove that their possession is legal, the relevant documents for the purpose should have been filed on record. These documents are the orders of allotment of the land in the form of proposal by the Land Management Committee and its approval by the Assistant Collector/S.D.O. concerned. Unless and until the allotment has been made in accordance with the procedure prescribed by the statute, any possession so held by any villager over the Gaon Sabha property is an illegal possession and for that purpose only the provisions of Section 122B of the Act have been enacted. Mere filing of a receipt taken from the then Pradhan of the village in the year 1970, is not sufficient to show the prima facie case of the petitioners for his legal possession over the disputed property. It is true that the orders passed in the proceeding under Section 122B of the Act are no findings regarding the ownership and title of the parties over the property. But once the orders of the authorities have been passed for eviction in a particular case, that order as such cannot be said to be wholly irrelevant, beyond jurisdiction and illegal. The argument of the learned Counsel for the petitioners is that the jurisdiction of the Assistant Collector under Section 122B of the Act, does not extend to an abadi land. I am surprised at the submissions itself when it is already admitted by the petitioners themselves that this land was subject of an allotment in their favour by the Gaon Sabha. Obviously, this property vested in Gaon Sabha under Section 117 of the Act, which says that after the notification under Section 4 of the Act the State Government may declare all or any of the properties detailed in Sub-section (i) to (vi) to vest in Gaon Sabha. The property so described in Sub-section (i) to (vi) of Section 117 of the Act also includes the abadi sites. Therefore, the abadi sites, which is vested in Gaon Sabha by the order of the State Government, is definitely a property of Gaon Sabha and if an order of Assistant Collector under Section 122B of the Act for eviction from such abadi site has been passed against the plaintiffs, that order cannot be said to be without jurisdiction and this aspect has not been specifically stated in Ltkhi Ram's case by the Division Bench of this Court. The plaintiffs have neither filed the allotment order which includes the proposal of Land Management Committee nor the approval of the same by the Assistant Collector/ S.D.O. concerned whereby alone any right would legally have been created for the plaintiffs-petitioners over the disputed land. On the contrary, there is eviction order of the petitioners passed under Section 122B of the Act and in such fact situation if the courts below have found that the petitioners did not have prima facie case for grant of temporary injunction and have given concurrent findings to that effect, I do not propose to make any interference against those orders in extraordinary jurisdiction of a writ petition underArticle 226of Constitution of India.5. Learned counsel while citing the case law ofDalpat Kumar and Anr. v. Prahlad Singh and Ors.1992 (1) ARC 300, has tried to emphasise that in case the plaintiffs-petitioners have their long standing possession over the disputed property, their interest to the extent of restraining defendant from evicting them from the property should be protected and that alone is the purpose of Order XXXIX, Rules 1 and 2,C.P.C. While dealing with the scope of granting temporary injunction under the aforesaid provision of the Code, the Apex Court in this case has specifically propounded that the presence of all the aforesaid three parameters is a sine qua nan and without that the courts cannot satisfy themselves for such grant of temporary injunction. In the aforesaid case, it has been made clear by the Hon'ble Supreme Court that the existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction and the petitioners must possess a prima facie case to that extent. Satisfaction of the Court to the extent of prima facie case is not alone sufficient for grant of injunction. It has to be established on record that non-interference by the Court would result in irraparable injury to the party seeking such relief of temporary injunction and no other remedy would be available thereafter if the injunction is refused. The third condition "the balance of convenience" has also been discussed by the Hon'ble Court and it has been propounded that this balance must be in favour of granting injunction and not refusing it. The Gaon Sabha respondent-defendant has an order of the competent court for eviction of the petitioners from the disputed land. Even without seeking relief of declaration of title over the said abadi site the plaintiffs in the garb of injunction suit are trying to withhold the execution of the said order of the authorities passed under Section 122B of the Act. Obviously, in such a fact situation, it cannot be said that the balance of convenience is in favour of grant of temporary injunction and not in favour of refusal of the same. As regards the irreparable injury, which has to be incurred in the event of refusal of the prayer of temporary injunction, it cannot be said that the possession of the petitioners, if is disturbed during the pendency of the suit, it will not be restorable to them in case they are found real owners of the property after the final disposal of the suit. Therefore, in the available circumstances, if both the courts below have found it not be a case for grant of temporary injunction, I do not propose to interfere in such orders.6.This petition is without merits and is hereby dismissed. |
40ac7e32-eb20-5eba-b916-883b78920e6f | court_cases | Madras High CourtKrishnammal vs Sahadevan on 23 April, 2018Author:M.SundarBench:M.SundarBEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23.04.2018
CORAM
THE HONOURABLE MR. JUSTICE M.SUNDAR
S.A(MD).No.563 of 2008
and
M.P.(MD).Nos.1 of 2008 and 1 of 2015
Krishnammal ... Appellant
Vs.
1.Sahadevan
2.Avudaiammal
3.Periyamuniammal
4.Chinnamuniammal
5.Kalichamy
6.Krishnasamy
7.Velu ... Respondents
PRAYER: Second Appeal is filed under Section 100 of the Civil Procedure Code,
praying to set aside the decree and the judgment dated 29.08.2007 rendered in
A.S.No.27 of 2007 on the file of the Subordinate Judge, Virudhunagar,
reversing the decree and the judgment dated 21.12.2006 rendered in O.S.No.55
of 2001 on the file of the District Munsif of Virudhunagar, by allowing this
Second Appeal.
!For Appellant : Mrs.Jessi Jeeva Priya
^For Respondents 1 &2 : Mr.S.Kadarkarai
For Respondents 3,5,6 & 7 : No appearance
:JUDGMENTThis second appeal originates from and arises out of a suit being
O.S.No.55 of 2001, on the file of the District Munsif Court, Virudhunagar.
The 'District Munsif Court, Virudhunagar' shall hereinafter be referred to as
'trial Court', in this judgment.2.The sole plaintiff in the trial Court, one Krishnammal, is the lone
appellant in the instant second appeal before me. In the trial Court, there
were eight defendants. Pending suit, defendant No.3, one Sevuha Thevar died.
Therefore, barring Defendant No.3, the other seven defendants are the seven
respondents before me, in this second appeal. Respondents 1 and 2 before me,
who were defendants 1 and 2 respectively, before trial Court are contesting
this second appeal. Respondent No.4 before me, who was Defendant No.5 in the
trial Court, has been given up today by way of an endorsement made by the
learned Counsel for appellant, which reads as follows:?The 4th respondent is given up and the same may be recorded?3.Other defendants, other than defendants 1 and 2 and Defendant No.5,
who are respondents 3, 5, 6 and 7 before me have been duly served, their
names are shown in the cause list and I am informed that no Counsel has
entered appearance on their behalf. Their names were called out aloud thrice
in the Court, adjoining corridor and in the visitors gallery. No response.
Therefore, I deem it appropriate to set them ex-parte in this second appeal.4.From hereon, the parties to this second appeal shall be referred to
by their respective ranks in the trial Court for the sake of convenience and
clarity. To state this with more specificity, I deem it appropriate to say
that the lone appellant before me shall be referred to as the plaintiff and
respondents 1 and 2 before me shall be referred to as defendants 1 and 2,
respectively. Respondents before me shall collectively be referred to as
defendants.5.Aforesaid suit from which this second appeal originates ie.,
O.S.No.55 of 2001, was filed by the plaintiff in the trial Court on
20.02.2001. Prayer in the trial Court is for bare injunction qua possession
with regard to the suit property. The suit property as can be culled out
from the decree of the trial Court is comprised in Survey No.1153/1 in Enjar
Village, Mangalam firka, Sivakasi Taluk, Virudhunagar District. The land
extent is 46 + cents and in terms of superstructure, there is a residential
building thereon and the residential building bears Door No.3/1. For the
sake of clarity, I deem it appropriate to extract the schedule of property in
the trial Court decree and the same reads as follows:?Propertied in S.No.1153/1 to an extent of 46 + cents at Enjar Village,
mangalam Firika, Suvakasi Taluk, Virudhunagar District and a residential
building therin having Door No.3/1.?6.The aforesaid property (land and superstructure) shall henceforth be
referred to as ?suit property? in this judgment for the sake of brevity,
convenience and clarity.7.It is the case of the plaintiff that the suit property is plaintiff's
husband one Muthuveerappa Thevar's ancestral property. To be precise, the
entire property contained in S.No.1153/1 or in other words entire Survey
No.1153/1, was originally owned by one Muthuveerappa Thevar @ Vellai Thevar,
grandfather of plaintiff's husband. To be noted, pliantiff's husband and
plaintiff's spouse's grandfather share a common name.8.It is the case of the plaintiff that her spouse got the suit property
by way of oral partition. As this is not disputed by defendants 1 and 2, who
are contesting this second appeal, I deem it unnecessary to get into the
detailing of the partition and the devolutions of the property over three
generations.9.Plaintiff's spouse Muthuveerappa Thevar's brother is Sangiliveerappa
Thevar. Sangiliveerappa Thevar also got 46 + cents of property in the same
survey No.1153/1, from his ancestors in a manner identical to the one in
which plaintiff's husband got 46 + cents. Defendants 1 and 2 are purchasers,
who have purchased from Sangiliveerappa Thevar and others vide three sale
deeds dated 03.07.1953, 26.08.1974 and 22.01.1964, which have been marked as
Exhibits B.1., B.2., and B.3., respectively, in the trial Court.10.With regard to pleadings in the trial court, it is the specific case
of defendants 1 and 2 that they are not interfering with plaintiff's
possession and enjoyment of suit property. It is also the specific case of
defendants 1 and 2 that they have a ?Vaikkaal Vazhi Nadaipaathai? on the
northern side of the suit property. This is articulated in paragraph No.7 of
the written statement and I deem it appropriate to extract paragraph No.7,
which reads as follows:?7.In fact the plaintiff is interfering with the movements of the
defendants through the tha;f;fhy; tHp eilghij which is situate far north of
her house and these defendants are not interfering with her right of
possession and enjoyment.?[Underlining made by me to supply emphasis and highlight.]11.On the aforesaid rival pleadings which have been set out very
broadly, parties went to trial. Sole plaintiff examined himself as P.W.1
and Defendant No.1, Sahadevan, examined himself as D.W.1. There was only one
witness on the side of plaintiff and likewise, there was only one witness on
the side of the defendants. With regard to documentary evidence on the side
of the plaintiff, six exhibits namely, Ex.A.1 to Ex.A.6 were marked. On the
side of the defendants, three exhibits, namely, Ex.B.1 to Ex.B.3 (about which
I have mentioned supra) have been marked. Besides this, seven exhibits, ie.,
Ex.C.1 to Ex.C.7, have been marked. These seven exhibits are two reports of
the Advocate Commissioner, two sketches filed by the Advocate Commissioner,
one field sketch filed by the Government Surveyor, Revenue receipts ie.,
Chitta, Adangal for the suit property and the field map for entire Survey
No.1153. To be noted, the field map for entire Survey No.1153, which is
described as ?Pula Varaipadam? has been marked as Ex.C.7. Further, to be
noted, in the printed judgment of the trial Court placed before me, Ex.C.2.,
has been described as Surveyor's report, but, on a perusal of Ex.C.2., (from
the records received from the Courts below), it is seen that Ex.C.2, is
actually a field map together with revenue classifications filed by the
Government jurisdictional Surveyor, which has been marked as Ex.C.2.12.After full contest, the trial Court decreed the suit as prayed for
by judgment and decree dated 21.12.2006. Defendants 1 and 2 and defendants 4
to 8 (excluding Defendant No.3, who died pending suit in the trial Court as
mentioned supra) carried the matter in appeal by way of a regular first
appeal underSection 96of the Code of Civil Procedure, 1908 (hereinafter
referred as ?CPC? for brevity). The regular first appeal is A.S.No.27 of
2007 and it is on the file of the Subordinate Judge's Court, Virudhunagar.The 'Subordinate Judge's Court, Virudhunagar' shall hereinafter be referred
to as 'first appellate Court', for the sake of convenience and clarity.
Though obvious, for the purpose of completing facts with clarity, I deem it
appropriate to mention that sole plaintiff Krishnammal was arrayed as lone
respondent in the first appellate Court.13.After full contest, the first appellate Court allowed the aforesaid
appeal in A.S.No.27 of 2007, in and by judgment and decree dated 29.08.2007.14.To be noted, the first appellate Court has reversed the judgment and
decree of the trial Court, primarily on the ground that no police complaint
has been filed by the plaintiff, regarding the interference with plaintiff's
possession of suit property said to have been caused by the defendants. I
shall refer to this and there shall be some elaboration of this infra
elsewhere in this judgment.15.Aggrieved by the reversing judgment and decree of the first
appellate Court, plaintiff carried the matter to this Court, by way of a
second appeal underSection 100CPC ie., the instant second appeal
S.A.(MD)No.563 of 2008. Instant second appeal was filed on 28.04.2008.
Instant second appeal was admitted by this Court on 16.06.2008, on one
substantial question of law. I deem it appropriate to extract that one
substantial question of law. For the sake of convenience and clarity, I deem
it appropriate to extract the entire admission order of this Court dated
16.06.2008. I do so and the same reads as follows:?ADMIT. The following substantial question of law has been formulated
in this appeal for consideration:?Whether the first Appellate court is correct in law in coming to a
conclusion that the plaintiff should establish the alleged trespass made by
the defendant by way of preferring a police complaint before instituting a
suit??Notice to the respondents returnable by four (4) weeks.?16.Respondents were served and only respondents 1 and 2 are contesting.These details have already been set out by me supra.17.Thus, this second appeal is now before me for final disposal.18.Mrs.Jessi Jeeva Priya, learned Counsel, on behalf of the sole
appellant and Mr.S.Kadarkarai, learned Counsel on behalf of respondents 1 and
2 are before me. I have heard both the learned Counsel elaborately.19.Before I proceed further, it may be necessary to extract the field
map/sketch filed by the jurisdictional Government Surveyor in the trial Court
which has been marked as part of Ex.C.2. The field sketch is as follows:20.To be noted, what has been shown as 1C (orange marked portion) is
plaintiff's property and what has been shown as 1B (yellow marked portion) is
property belonging to defendants 1 and 2.21.Both the aforesaid learned Counsel made submissions that were not
only crisp, but, equally fair. From such submissions and from a perusal of
records of the Courts below, which are before me, it emerges without any
doubt in my mind that the entire matter turns on a very very narrow compass.22.Defendants 1 and 2 have taken a very fair stand in the trial Court
itself that they are not interfering with the right of possession and
enjoyment of suit property by plaintiff. Therefore, the trial Court,
decreeing the suit should not hurt defendants 1 and 2. However, the matter
was carried in appeal by way of a regular first appeal in A.S.No.27 of 2007,
as mentioned supra. The reason for carrying it in appeal, I am given to
understand is that plaintiff is interfering with the defendants' rights,
particularly with regard to Vaikkaal Vazhi Nadaipaathai and the defendants'
property.23.To my mind, this reason for having preferred an appeal, appears to
be not completely unfounded in the light of paragraph No.7 of the written
statement, which I have already extracted supra.24.However, that does not support the case of defendants 1 and 2 in the
instant second appeal. The reason is, as mentioned supra, the first appellate
Court has reversed the judgment and decree of the trial Court on the sole
ground that no police complaint has been filed by the plaintiff. In other
words, the first appellate Court has come to the conclusion that there is no
cause of action for the suit. This, to my mind, appears to be incorrect. The
reasons are two-fold. One reason is, plaintiff has issued a suit notice. In
other words, prior to filing of the suit on 20.02.2001, plaintiff has issued
a notice through Advocate on 01.01.2001. This Advocate's notice, wherein it
is alleged that defendants are interfering with the possession of suit
property by the plaintiff had been marked as Ex.A.4. The postal
acknowledgment card of the same has been marked as Ex.A.5. More importantly,
it is not in dispute that there is no response or reply from defendants for
Ex.A.4, though the same has been duly received, which is evidenced by
Ex.A.5, postal acknowledgment card. The second reason is, there is nothing
that makes it imperative or necessary for a person, whose possession is
threatened or disturbed to lodge a police complaint before filing a civil
suit. The very fact that plaintiff has issued a legal notice which has been
duly served on defendants and the further fact that it has not evinced any
response or reply from the defendants is sufficient cause for the plaintiff
to lay the suit.25.Beyond this, it would be incorrect to hold that plaintiff should
have lodged a police complaint also and non-suit the plaintiff on that
ground. Plaintiff has filed a civil suit. The need and necessity for filing
a police complaint may arise only when there is a law and order problem or
when there is some other offence that has been committed. With regard to
interfering with possession, if a civil suit is filed after issuing notice
through lawyer with no response from noticees, it cannot be put against the
plaintiff, to say that a police complaint ought to have been lodged. This
part of the judgment of the first appellate Court is contained in paragraph
No.13 of the printed judgment placed before me. This part is contained
between placitum 25 and 35 at page 5 of the printed judgment. I deem it
appropriate to extract the same.?13)..... . .... there is no police complaint or any report filed by
the plaintiff regarding the disturbance caused by the defendants. Hence
there is no prima facie case in the plaintiff's case and there is no balance
of convenience for the plaintiff and also DW1 admitted in the cross-
examination, they did not claim any right over the plaintiff's property.?26.However, with regard to the reason given by defendants 1 and 2 for
preferring the first appeal, there is a mention about the same in the
judgment of the first appellate Court also. That is contained in paragraph
No.12. I deem it appropriate to extract the same.?12).... . Eventhough both parties admitted their own properties near
the channel pathway, the plaintiff did not elicit that there is a dispute in
the channel pathway.?27.As mentioned supra, it is the specific case of defendants 1
and 2 that plaintiff is interfering with the channel pathway and their
property. However, as alluded to supra, even if that be true, that does not
support the case of defendants 1 and 2 in the instant second appeal. If that
be true, the remedy for defendants is elsewhere and I shall mention the same
infra in this judgment.28.I now turn to the substantial question of law on which, this second
appeal was admitted.29.A reading of the substantial question of law would reveal that this
Court has admitted the second appeal primarily on the question as to whether
the first appellate Court was correct in law in coming to the conclusion that
the plaintiff should establish alleged trespass by defendants by way of
preferring a police complaint before instituting a suit. I have already
discussed this aspect of the matter supra in this judgment. I have held that
the issue of a suit notice (Advocate's notice Ex.A.4), postal acknowledgment
card for the same (Ex.A.5) and the admitted position that there was no reply
or response for the same is sufficient for institution of the suit.
Therefore, in the light of the discussion supra, which I have restated here,
it is an inevitable sequitur that answer to the substantial question of law
is in the negative. I answer the substantial question of law in the negative.
In other words, I answer it in favour of the plaintiff (appellant in this
second appeal) and against defendants 1 and 2 (respondents 1 and 2 in this
second appeal).30.However, before parting with this case, it is necessary to mention
about the remedies that may be available for defendants 1 and 2, if their
pleading is true. Instead of filing an appeal against a bare injunction
decree, defendants should have filed separate proceedings to protect their
possession. As this second appeal is being disposed of by the High Court, I
deem it appropriate to clarify that it is open to defendants 1 and 2, to
initiate suitable proceedings against the plaintiff to protect the possession
of their property and the pathway channel, if there is any interference by
the plaintiff as alleged. In other words, the rights and contentions of
defendants 1 and 2, in this regard are left open. To state this with greater
clarity and more specificity, I make it clear that if defendants 1 and 2
choose to file a suit of an appropriate nature alleging interference of their
property (defendants' property) and the pathway channel by the plaintiff, the
Court of first instance shall deal with the same on merits of the matter,
without being influenced by and untrammeled by what has been said in this
second appeal. In other words, that question is left open for a Court of
appropriate jurisdiction to decide the matter on merits of the rival
contentions, if defendants 1 and 2 choose to adopt such a course.31.In the peculiar circumstances of the case where two issues
dovetailed, I have considered it necessary to take such a course and leave
that question open.32.As I have already answered the sole substantial question of law
arising in this second appeal in favour of the appellant, this second appeal
deserves to be allowed, however, subject to the aforesaid rider with regard
to questions being left open.33.Second appeal allowed, judgment and decree of first appellate Court
in A.S.No.27 of 2007 dated 29.08.2007, are set aside and decree and judgment
of the trial Court dated 21.12.2006 in O.S.No.55 of 2001, are restored.34.Considering the nature of the matter and the trajectory of
litigation, I leave the parties to bear their respective costs. No costs.
Consequently, connected miscellaneous petitions are closed.To1.The Subordinate Judge,
Virudhunagar.2.The District Munsif,
Virudhunagar.3.The Section Officer,
E.R.Section/V.R.Section,
Madurai Bench of Madras High Court, Madurai.. |
bfef33e5-9353-5b08-b4e3-a75293884039 | court_cases | Income Tax Appellate Tribunal - JaipurVaibhav Global Ltd., Jaipur vs Department Of Income Tax on 2 August, 2016vk;dj vihyh; vf/kdj.k] t;iqj U;k;ihB] t;iqj
IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR
Jh Hkkxpan] ys[kk lnL; ,oa Jh yfyr dqekj] U;kf;d lnL; ds le{k
BEFORE: SHRI BHAGCHAND, AM & SHRI LALIET KUMAR, JM
vk;dj vihy la-@ITA No. 805/JP/2014
fu/kZkj.k o"kZ@Assessment Year : 2007-08
A.C.I.T. cuke M/s Vaibhav Global Ltd.,
Circle-5, Jaipur. Vs. K-6B, Fatehtiba, Adarsh Nagar,
Jaipur.
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AAACV 4679 F
vihykFkhZ@Appellant izR;FkhZ@Respondent
jktLo dh vksj ls@ Revenue by : Shri Rajendra Singh (Addl.CIT)
fu/kZkfjrh dh vksj ls@ Assessee by : Shri G.G. Mundra (CA)
lquokbZ dh rkjh[k@ Date of Hearing : 14/07/2016.
mn?kks"k.kk dh rkjh[k@ Date of Pronouncement : 02/08/2016.
vkns'k@ ORDERPER: LALIET KUMAR, J.M.
This is an appeal filed by the revenue against the order dated
12/09/2014 of the learned C.I.T.(A)-II, Jaipur for A.Y. 2009-10. The
effective ground of the appeal is as under:-"On the facts and in the circumstances of the case and in law
the ld CIT(A) has erred in:-2ITA No. 805/JP/2014ACIT Vs M/s Vaibhav Global Ltd."(i) Whether on the facts and in circumstances of the case
and in law the Ld. CIT (Appeals) has erred in deleting
the addition of Rs.41,63,703/- in spite of fact that the
addition was made in view of CBDT instruction No.
02/2008 dated 22/02/2008."2. Brief facts of the case are that the assessee company derived
income from manufacturing and export of gems stones, diamonds and
studded jewellery. The assessee filed its return of income on 25/10/2007
declaring total income of Rs. 3,07,95,460/-. The case was scrutinized U/s
143(3) of theIncome Tax Act, 1961(in short the Act). The ld Assessing
Officer observed that there are 100% Export Oriented Unit (EOU) and
DTA units of the assessee company. The assessee claimed deduction U/s
10A for its units situated in SEZ Mumbai and U/s 10B for 100% EOU
situated at Jaipur. Apart from it one DTA unit situated at Jaipur and is
engaged in business of color gems stones. The other DTA unit is stated in
Mumbai and is engaged in the business of trading of diamonds.
2.1 For the assessment year 2007-08, the ld Assessing Officer passed
an assessment order and have made a trading addition of Rs.
1,65,89,139/- on the basis of CBDT circular No. 02/2008 dated
22/2/2008. However, the ld CIT(A) on appeal had granted relief of Rs.
1,62,02,059/- to the assessee. Against that the revenue has filed the3ITA No. 805/JP/2014ACIT Vs M/s Vaibhav Global Ltd.appeal and the Tribunal vide order dated 25/2/2011 has confirmed the
order passed by the ld CIT(A) with the following direction:-"These findings of ld. CIT (A) are finding of fact. Therefore, we are of
the considered view that the finding of ld. CIT (A) deserves to be
upheld. The ld. CIT (A) has ascertained that Board instructions are not
applicable for the year under consideration. It was further noted that
even in Board Instructions, no such instruction has been given that
profit @ 6% has to be taken on the total turnover shown by assessee
as it has been stated that where assessee voluntarily shown 6% or
more profit on diamond that would be accepted. It does not mean
that Board has instruction to apply 6% N.P. rate blindly. Books of
account are audited. Each and every aspect has been clarified by the
Auditor. Quantitative details are also maintained. All the purchases
and sales are vouched. There is no material on record that assessee
has suppressed its sales or has received money back from its
customers on account of purchases. Therefore, we are of the view
that ld. CIT (A) was justified in applying g.p. rate of 2.6% against
2.46% as there were certain defects on which g.p. rate of 0.14% was
enhanced. We further noted that similar additions were made for
earlier year also and they have been deleted by the Tribunal. Copies of
orders of the Tribunal are placed on record. In view of these facts and
circumstances and in view of the reasoning given by ld. CIT (A), we
confirm his order in this respect."4ITA No. 805/JP/2014ACIT Vs M/s Vaibhav Global Ltd.2.2 The ld Assessing Officer after recording the reasons for reopening,
issued earlier notice U/s 148 of the Act on 26/3/2012, which was duly
served upon the assessee. After the reasoning given by the ld Assessing
Officer, as mentioned in the assessment order, which is as under:-"The assessee claimed deductionu/s 10Afor its units situated in
SEZ Mumbai andu/s 10Bfor 100% EOU situated at Jaipur. Apart
from it one DTA unit situated at Jaipur and is engaged in business
of color Gem Stones. The other DTA unit is situated in Mumbai and
is engaged in the business of trading of Diamonds. After
verification it was found that in respect of DTA, Mumbai turnover
of this unit was Rs.39,89,47,504/-(Rs.27,64,85,644+ inter unit sale
of Rs.12,24,61,860/-) but the assessee has shown the turnover of
Rs.27,64,85,644/- and the assessee has proposed for application
of NP rate of 6% on turnover of Rs.27,64,85,644/- only, while
making the assessment 6% of NP was applied on declared
turnover of Rs.27,64,85,644/-. This rate of NP is also applicable on
the inter unit sale turnover of Rs.12,24,61,860/- which works out
to Rs.73,47,711/-. Thus income was under assessed by
Rs.73,47,711/-.I have therefore, reason to believe that on account of failure on
the part of the assessee to disclose fully and truly all material facts
income amounting of Rs.73,47,711/- has escaped assessment
within the meaning ofsection 147."5ITA No. 805/JP/2014ACIT Vs M/s Vaibhav Global Ltd.The assessee was called upon to given reply and thereafter the ld
Assessing Officer have determined the market value of the goods or
service (diamond) for the purposes ofSection 80IA(8)of the Act after
calculating the profit on the NP rate of 6% in view of the instruction in
CBDT circular. The relevant paragraph is as under:-"I have considered the facts and circumstances of the case and
the submissions of the assessee. The assessee has not
maintained any quantitative or qualitative details of opening
stock and closing stock etc. and has not maintained any day-to-
day stock register or manufacturing register etc. as discussed in
preceding paras of this order. The valuation of closing stock
shown by the assessee is also not reliable as the assessee had
valued the opening and closing stock at different rates. Looking
to all these defects the assessee's books of account can't be
accepted as complete and correct and therefore, the true profits
of the firm can't be deduced and hence provisions ofsection
145(3)are clearly applicable in the case of assessee.
The assessee has shown GP rate of 2.46% on turnover of
Rs.27,64,85,644/- in respect of Mumbai DTA Unit engaged in
trading of Diamonds.Considering the submission of the assessee and as the
assessee is engaged in trading of diamonds, therefore, in view of
CBDT Instruction No 02/2008 dated 22.2.2008, an NP rate of 6%
is applied on its turnover.6ITA No. 805/JP/2014ACIT Vs M/s Vaibhav Global Ltd.The assessee has shown turnover of Rs.12,24,61,860/- and
application of 6% NP result would give Net profit of
Rs.73,47,711/- which is added to the total income of the
assessee.3. Being aggrieved by the order of the ld Assessing Officer, the
assessee carried the matter before the ld CIT(A), who had opined the
reopening of the assessment proceedings U/s 147 and 148. However, in
respect of ground No. 3 of the appeal, which is as under:-"3. That the Ld. Assessing Officer is also wrong and has erred in
law in holding that inter unit transfers in DTA Mumbai
aggregating to Rs. 12,24,61,860/- is turnover of appellant
company and applying 6% N.P. thereon by wrongly applying
CBDT instruction No. 2/2008 dated 22/2/2008 and thereby
making an addition of Rs. 73,47,711/- in the total income of
assessee."The ld CIT(A) has determined the profit and gains of EOU unit at Jaipur
U/s 10B by calculating the market value of the goods i.e. at 1.026% of
Rs. 12,24,61,860/-. The relevant paragraph of the ld CIT(A)'s order is as
under:-"5.3.2 In this case too, goods (diamonds) held for the purposes of
business, have been transferred by the DTA, Mumbai7ITA No. 805/JP/2014ACIT Vs M/s Vaibhav Global Ltd.(conducting domestic business) to the EOU unit which is
eligible for exemptionu/s 10B. In this case, the consideration
for the inter unit transfer as recorded in the books of the EOU
unit is the purchase price of the DTA unit. This purchase price
of the DTA Mumbai does not correspond to the market value of
goods (diamonds) for the EOU unit, on the date of transfer. The
market value of such goods would be the consideration at
which the DTA unit sells the goods to other customers, which
would include the Gross Profit element of DTA Mumbai, as
well. The gross profit rate for the DTA unit has already been
upheld by the ITAT to be 2.6%. Therefore, for the purposes of
deductionu/s 10B, the profits and gains of the EOU unit at
Jaipur shall be computed as if the transfer has been made at
the market value of goods i.e. at 1.026% of Rs. 12,24,61,860/-.
(= Rs. 12,24,61,860/- + 2.6% of Rs. 12,24,61,860/-).
Consequently, the (exempted) profit of the EOU unit would
decrease and the profit of the DTA unit in Mumbai would
increase by 2.6% of Rs. 12,24,61,860/- = Rs. 31,84,008/- . This
increase in profit of Rs. 31,84,008/- of DTA Mumbai is taxable
in the hands of the appellant. Therefore, addition to the extent
of Rs. 31,84,008/- is sustained and the balance amount is
deleted. This ground is partly allowed."4. Now the revenue is in appeal before us. The ld Sr.DR has submitted
that the assessee has proposed NP rate on turnover of Rs. 27,64,85,664/-
and the ld Assessing Officer has applied the same NP rate to the inter unit8ITA No. 805/JP/2014ACIT Vs M/s Vaibhav Global Ltd.sale of Rs. 12,24,61,860/-. It was further contended that the market
value U/s 10B is required to be arrived in terms of the principle laid down
U/s 10B of the Act.Section 10Bof the Act provides as under:"SPECIAL PROVISIONS IN RESPECT OF NEWLY
ESTABLISHED HUNDRED PERCENT- EXPORT-ORIENTED
UNDERTAKINGS.10B (1) Subject to the provisions of this section, a deduction
of such profits and gains as are derived by a hundred percent
export-oriented undertaking from the export of articles or
things or computer software for a period of ten consecutive
assessment years beginning with the assessment year
relevant to the previous year in which the undertaking begins
to manufacture or produce articles or things or computer
software, as the case may be, shall be allowed from the total
income of the assessee:Provided that where in computing the total income of the
undertaking for any assessment year, its profits and gains
had not been included by application of the provisions of this
section as it stood immediately before its substitution by theFinance Act, 2000, the undertaking shall be entitled to the
deduction referred to in this sub-section only for the
unexpired period of aforesaid ten consecutive assessment
years:Provided further that for the assessment year beginning on
the 1st day of April, 2003, the deduction under this sub-
section shall be ninety per cent. of the profits and gains
derived by an undertaking from the export of such articles or
things or computer software:Provided also that no deduction under this section shall be
allowed to any undertaking for the assessment year9ITA No. 805/JP/2014ACIT Vs M/s Vaibhav Global Ltd.beginning on the 1st day of April, 2012 and subsequent
years.Provided also that no deduction under this section shall be
allowed to an assessee who does not furnish a return of his
income on or before the due date specified under sub-section
(1) ofsection 139."It was submitted that the applicability of 2.6% G.P. in respect of DTA unit
of Mumbai on the basis of the earlier order of the Tribunal was not correct
and the Tribunal in its order has mentioned "all purchases and sales are
vouched, there is no material on record that the assessee has suppressed
its sale or has received money back from its customer on account of
purchasers." In view of the above findings recorded by the Tribunal, the
benefit of the earlier order of applicability of GP @ 2.6%, in our view
cannot be extended.5. On the other hand, the ld AR of the assessee has submitted that
the case of the assessee is covered by the order passed by the Hon'ble
Tribunal dated 25/2/2011 and therefore, the ld CIT(A) was correct in
partly allowing the appeal of the assessee.6. We have heard the rival contentions of both the parties and
perused the material available on the record. As perSection 10B(8)of the
Act, if any goods or services are transferred as recorded in the accounts10ITA No. 805/JP/2014ACIT Vs M/s Vaibhav Global Ltd.of the eligible business, does not correspond to the market value of the
goods or services then the profit and gain of such eligible business shall
be computed at the market value of such goods or services as on that
date. In our view, the ld CIT(A) should have endeavoured to find out the
market value of the goods (diamond) transferred from DTA Mumbai to
DTA Jaipur and thereafter he should have computed profit and gains of
EOU unit to Jaipur. The same has not been done and the GP rate of 2.6%
has been applied by the ld CIT(A) on the basis of the earlier order passed
by the Tribunal dated 25/2/2011. In our view, the earlier order will not
come for rescue to the assessee as the assessee was found to have
suppressed the sale/transfer of the diamond to the DTA at Jaipur. Further
the assessee itself had proposed the application of NP rate of 6% on the
turnover of Rs. 27,64,85,644/- (sale made to the other units) and has not
shown any NP/GP in respect of the inter unit sale of Rs. 12,24,61,860/-
(compared to the earlier ITAT order). In our view, the same NP rate as
proposed by the assessee for other units is required to be applied to the
inter unit sale also in terms ofSection 10B(8)of the Act, however, at this
stage, since the market value of the goods/services required to be
determined, we deem it appropriate to remand the matter back to the file
of ld CIT(A) with direction to calculate the market value of the goods for11ITA No. 805/JP/2014ACIT Vs M/s Vaibhav Global Ltd.the purposes of computing the profit and sale of the assessee in respect
of enter sale unit of goods/services. In view thereof, the appeal of the
revenue is allowed for statistical purposes only.7. In the result, revenue's appeal is allowed for statistical purposes
only.Order pronounced in the open court on 02/08/2016.Sd/- Sd/-
¼Hkkxpan½ ¼yfyr dqekj½
(BHAGCHAND) (Laliet Kumar)
ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member
Tk;iqj@Jaipur
fnukad@Dated:- 02nd August, 2016
Ranjan*vkns'k dh izfrfyfi vxzsf'kr@Copy of the order forwarded to:1 vihykFkhZ@The Appellant- The A.C.I.T., Circle-5, Jaipur..2. izR;FkhZ@ The Respondent- M/s Vaibhav Global Ltd., Jaipur.3. vk;dj vk;qDr@ CIT4. vk;dj vk;qDr¼vihy½@The CIT(A)5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur6. xkMZ QkbZy@ Guard File (ITA No. 805/JP/2014)
vkns'kkuqlkj@ By order,
lgk;d iathdkj@Asst. Registrar |
289adde4-8335-5d9d-89a4-5c5d49ae65d7 | court_cases | Calcutta High CourtDalhousie Institute vs Assistant Commissioner, Service Tax ... on 30 June, 2004Equivalent citations: 2005(180)ELT18(CAL), 2006[3]S.T.R.311Author:Kalyan Jyoti SenguptaBench:Kalyan Jyoti SenguptaJUDGMENT
Kalyan Jyoti Sengupta, J.1. In this case the applicant initially having accepted the applicability of theFinance Act, 1994as amended byFinance Act, 1997(hereinafter referred to as the aforesaid Act) to it, the club/petitioner has asked for a declaration that the said Act does not apply. So, they prayed for quashing and rescinding of the communications letters dated 21st October, 1997, 12th October, 1998 and November 26, 1998 and also the Registration Certificate dated 19th November, 1997. The short fact of the case is that the petitioner No. 1 is a body, formed under theWest Bengal Societies Registration Act, 1961by its members and with an object to achieve various purposes as mentioned in the object Clause of its bye-laws. It is stated that the petitioner No. 1 is non-profit making body and extends amenities and facilities to its members only and/or their guests. In the bye-laws there is no provision for allowing the outsider to participate in the club function and affairs except in case of guest(s) of a member, who is solely responsible for making payment on behalf of the guests. In other words, the income of the club derived from the members and/or members of their family and the surplus of the receipts is being invested and/or reserved for the benefit of the members exclusively, no amount of excess is distributed among its members. In legal parlance the element of mutuality in the affairs and dealing of the club exists. The Club provides for various facilities and amenities including space as a venue for holding social, commercial and business functions, meetings and gatherings.2. In 1994 by the aforesaid Act various services rendered by the traders and/or organizations were subjected to tax at a particular rate. In 1997 by way of amendment of the aforesaid Act the services rendered by 'mandap keeper' providing mandap to the clients were brought under exigibility to the Service Taxes. Pursuant to the aforesaid Act the petitioner got itself registered and filed returns. It is claimed that obtaining of registration followed by filing of returns under the aforesaid Act were by mistake. On discovery of legal position the present application has been taken out for the relief as quoted hereinabove.3. The learned Senior Counsel Mr. J.P. Khaitan appearing for the petitioner contends going by the definition ofSection 65[Clause 4(i)] of the said Act that the petitioners' Club cannot be brought within the purview of the same. The said definition of taxable service is quoted below :"65. 4(i) "taxable service" means any service provided............(p) to a client by a mandap keeper in relation to the use of a mandap in any manner including the facilities provided to the client in relation to such use and also the services, if any, rendered as a caterer".4. Mr. Khaitan says that it is clear from the aforesaid definition in order to charge tax under the aforesaid Act following four pre-conditions must be satisfied.(i)"There must be letting out of immovable property which may include any furniture, fixtures, light fittings, floor coverings therein;(ii) Such letting out must be for consideration;(iii) Such letting out and provision of related facilities and catering services must be to a client;(iv) Such letting out must be for organizing any official, social or business function."5. According to him if there is mutuality in the affairs and business of any establishment, whether it is a body corporate or collective individuals or otherwise, the same cannot be brought within the purview of chargeability of service taxes. He has developed his argument by drawing analogy with decided cases of income-tax and sales tax.In connection with the income-tax he has relied on decisions of Supreme Court and this Court rendered in case ofCommissioner of Income Tax v. Bankipur Club Ltd.(226 ITR 97), Chelmsford Club v. Commissioner of Income Tax(243 ITR 89), Commissioner of Income Tax v. Darjeeling Club Ltd.(152 ITR 676). He has also relied on decision of the Supreme Court in connection with Sales Tax rendered in case of Joint Commercial Tax Officer, Harbour Division-II Madras (XXVI STC 241).6. None appears on behalf of the respondents. However, I find affidavit-in-opposition has been filed. In the affidavit-in-opposition the point has been taken firstly the petitioner is estopped from challenging the action of the respondent after having obtained Registration Certificate and submitted returns. It is further stated in the affidavit that the petitioner/club is offering its immovable property other assets and facilities for use and enjoyment of the outsider in the name of the guests for consideration. The members who are bringing the invitees could not be termed as guests within the meaning as defined in the bye-laws and rules of the petitioner. It is further stated in the affidavit that when a member of the petitioner holds any social gathering in the club premises and invite large number of people to attend such gathering, no individual guest charges is paid and further register is maintained, recording each and every invitee in name of guests.7. Therefore, going by the definition of 'client' as mentioned in the said Act and having regard to the meaning of the word 'client' as mentioned in Webster's Encyclopaedic Unabridged dictionary of English language the Members and their guests who are using the club premises as an invitee for social function and gatherings can be treated to be client.8. Having considered contention of the petitioner as well as the respondent the point in this case is whether going by the definition of 'Mandap' and 'Mandap keeper' of the said Act the petitioner/club can be made liable to pay service taxes or not. Before I decide this issue the preliminary point taken by the respondent is to be addressed. It is contended the petitioner is estopped from making this application after having obtained registration certificate under the said Act and submitted returns for one year. It has now become elementary principle of law that question of estoppel cannot arise nor the principle thereof can be applied as against the provision of law. If it is found that the particular statute is not applicable to any person or persons, the action taken by mistake cannot operate as an estoppel or acquiescence. So, this preliminary issue is decided against the respondent.9. Mr. Khaitan persists in the doctrine of mutuality, which has already been accepted by the Supreme Court and this Court without any exception and consistently in several cases of income-tax as well as Sales Tax. He submits that there is no basic difference in the object and purpose of exigibility of the service taxes. Whether the principle of mutuality can be applied in this case or not, has to be gathered from the definitions of mandap keeper and the taxable service. Therefore the aforesaid three definitions are set out hereunder."Mandap" means any immovable property as defined inSection 3of the Transfer of Property Act, 1882 (4 of 1882) and includes any furniture, fixtures, light fittings, and floor coverings therein let out for consideration for organizing any official social or business function;"mandap keeper" means a person who allows temporary "occupation of a mandap for consideration for organizing any official, social or business function.""taxable service" means any service provided to a client, by a mandap keeper in relation to the use of a mandap in any manner including the facilities provided to the client in relation to such use and also the services, if any, rendered as a caterer.10. The words 'let out for consideration' employed in the definition of 'mandap' clearly intend the element of use of any person including the third party given by the landlord, of the immovable property as well as the furniture, fixture and light fittings on consideration. Therefore, the meaning and definition of letting out inheres transaction of commercial character, rather trading. Similarly, from the definition of 'mandap keeper' it is clear that a person allows temporary occupation of a mandap for consideration, meaning thereby temporary parting with possession to third party for consideration. Therefore, it is obvious that legislature intended this transaction must be for commercial purposes. Again words 'provided to a client' used in the definition of taxable service in the said Act necessarily presupposes that the mandap keeper must be letting out to any person on consideration. Now it has to be examined in the context of the aforesaid reading and meaning of the three definitions, whether the petitioner/club does come within the purview of the same or not.11. Undeniably and undisputedly the petitioner club has been formed by a number of individuals and for the purpose of attaching apparently independent legal entity this body individuals have got this club registered under theWest Bengal Societies Registration Act, 1961. Under the said Act this club cannot have any juristic entity rather the office-bearer of the same as provided underSection 19of the said Act. Therefore all the members jointly own all the immovable properties as per definition of the mandap. In the bye-laws, rules and regulations of the Club I do not find there is any provision that the properties and the facilities those are being made available by the members for themselves, are extended to the third parties for any consideration whatsoever. The members of the club are allowed exclusively to participate in the services rendered by the club and the club fund, no third party is allowed to participate in the same. Even the facilities and amenities of the club are not extended to any third party who, of course, may come as a guest and/or invitee of the members. Therefore, it is clear from the activities of the club as stipulated in the bye-laws, rules and regulation, the 'mandap keeper' in this case is the members collectively in the name of petitioner No. 1 and the mandap belonged to them in the name of the petitioner No. 1 again. The allegations in the affidavit-in-opposition for which the action is sought to be taken do not make any difference of the aforesaid user. I am of the view that the understanding of respondent about petitioners' dealing is fallacious, for they mean the word 'client', relying on the dictionary expression instead of reading and understanding correct meaning and purport of the aforesaid three definitions. In my view service taxes is recoverable from the 'mandap keeper' who is having different and separate legal and physical entity and, let out mandap with commercial and trading object. Here the members have formed the petitioner No. 1 to serve themselves mutually and for this purpose members are paying for such user and any amount of receipt and expenditure of the club is enjoyed and/or participated and/or incurred by the members alone, not by third party.12. The suggestion of Mr. Khaitan for application of the principle of mutuality which has been accepted in income-tax and Sales Tax cases in this case as well, appears to have much relevance because of the definition as mentioned above. In the income-tax cases our Court (152 ITR 676) while applying the principle of mutuality has held that:"The club was not the landlord and the members, during their stay, were not the tenants of the club. The members by virtue of their membership were entitled to avail of the facilities of the club as of right according to the rules of the club. They were entitled to accommodation also as of right. What is paid by the members for their accommodation cannot be treated as rent and that income cannot be regarded as income from house property under theI.T. Act."13. In the decision of Supreme Court (226 ITR 97) it has been observed considering the large number of Indian and English decisions at page 110 that -".....the receipts for the various facilities extended by the clubs to their members, as stated hereinabove, as part of the usual privileges, advantages and conveniences, attached to the membership of the club, cannot be said to be "a trading activity". The surplus - excess or receipts over the expenditure - as a result of mutual arrangement, cannot be said to be "income" for the purpose of the Act."14.In the case ofChelmsford Club v. Commissioner of Income Tax(243 ITR 89) the Supreme Court while following theBankipur Clubcase that it is not only the surplus from the activities of the business of the club that is excluded from the levy of income-tax even the annual value of the clubhouse as contemplated inSection 22of the Act will be out side the purview of levy of income-tax".15. The Supreme Court in the case of theJoint Commercial Tax Officer, Harbour Division v. Young Men's Indian Association Madras and Ors. while dealing with the problem of levy of sales tax in connection with a club after considering the various decisions of the Courts of this country as well as the English decision was pleased to observe as follows :"The essential question, in the present case, is whether the supply of the various preparations by each club to its members involved a transaction of sale within the meaning of theSale of Goods Act, 1930. The State Legislature being competent to legislate only under entry 54, List II of the Seventh Schedule of the Constitution the expression 'sale of goods' bears the same meaning, which it has in the aforesaid Act. Thus in spite of the definition contained insection 2(n)read with Explanation I of the Act if there is no transfer of property from one to another there is no sale which would be exigible to tax. If the club even though a distinct legal entity is only acting as an agent for its members in the matter of supply of various preparations to them no sale would be involved as the element of transfer would be completely absent. This position has been rightly accepted even in the previous decision of this court.The final conclusion of the High Court in the judgment under appeal was that the case of each club was analogous to that of an agent or mandatory investing his own moneys for preparing things for consumption of the principal and later recouping himself for the expenses incurred. Once this conclusion on the facts relating to each club was reached it was unnecessary for the High Court to have expressed any view with regard to the vires of the Explanations tosection 2(g)and2(n)of the Act. As no transaction of sale was involved there could be no levy of tax under the provisions of the Act on the supply of refreshments and preparations by each one of the clubs to its members."16. The principle of mutuality in this case is also squarely applicable, as going by the definitions of mandap, mandap keeper and the taxable service, in this case the facility of use of the premises to the members by its club cannot be termed to be a letting out nor the members of the club using the facility of any portion of the premises for any function can be termed to be a client. The services rendered by any person to his client presupposes the element of commerciality and obviously this transaction must be involved with the third parties, as opposed to the members of the club.17. Thus, I allow the writ petition consequently I set aside and quash the notices and the registration certificate.18. However, there will be no order as to costs. |
7c89f85d-2873-5c0a-8240-8fee2cf70c3a | court_cases | Customs, Excise and Gold Tribunal - MumbaiReliance Industries Ltd. vs The Commissioner Of Central Excise on 11 September, 2003ORDER
Archana Wadhwa, Member (J)1. A very short issue is involved in this appeal, i.e. as to whether the interest on receivable is admissible to be deducted from the sale price so as to arrive at the assessable value.2. We have heard both sides duly represented by Ms. Anjali Chandrekar, Ld. Advocate for the appellants and Shri Khalwadekar, Ld. JDR, for the Revenue.3. It is seen from the impugned order of Commissioner (Appeals) that though he is admitting that the issue is covered in favour of the appellant by the Hon'ble Supreme Court decision in the case of MRF Ltd., as also by the other Tribunal's decisions, he has rejected the appellant's claim on the ground that they were not collecting any interest separately from their customers on account of delay in payment. He has not accepted their argument that the interest is deemed to be billed into the price for the purpose of allowing their claim for deduction of interest from the price realised.4. On the other hand the appellant's contention is that the issue is squarely covered by the larger Bench decision of the Tribunal in the case of Gomti Carbon Dioxide Vs. CCE, Kanpur (2000 (119) ELT 565 Tribunal-LB).Reliance has also been placed by the Tribunal's decision in the case ofVST Industries Vs. CCE(1999 (114) ELT 676 (Tri).Further, our attention has been drawn to the Eastern Bench decision in the case ofShalimar Paints Ltd., Vs. CCE, Calcutta-II{2001 (128) ELT 492 (Tri. Cal) laying down that the interest on receivable being inbuilt in the price is deductible from the assessable value. For ready reference para 7 ofthe said decisionis re-produced below:-"We find that apart from the fact that the Commissioner, Calcutta appeal against the earlier decision of the Tribunal was dismissed by the Hon'ble Supreme Court in the case of Bata (I) Ltd, the issue also stands decided by the Larger Bench decision in the case of Gomti Carbodioxide & Ors. Vs. CCE, Jaipur (2000 (38) RLT 1039 (CEGAT-LB). It has been held that interest on receivables where the sale is a credit sale have to be allowed as deduction from the sale price in order to arrive at the correctassessable value. However, the Tribunal has observed that such an interest can be claimed as a deduction for the credit period mentioned in the invoices or the other duty paying documents. We find that in the instant case the Revenue has not raised any objection that no credit period was being allowed by the appellant to their customers. On the contrary the deduction has been disallowed on the ground that such interest was inbuilt in the wholesale cash price. In view of this we find that the Larger Bench decision of the Tribunal squarely applies to the facts of the instant case ".5. In the instant case also we find that there is no dispute about the fact that the appellant gets the consideration for sale of the goods after a particular period. As such even though the interest amount has not been shown separately in the invoice and the same is inbuilt in the price, the deduction on account of the same is required to be allowed. We accordingly set aside the impugned order and allow both the appeals with consequential relief to the appellants. |
b7fabd70-0015-5e7e-8e26-8c8b3f5f1115 | court_cases | Central Administrative Tribunal - DelhiShri Ravinder Kumar vs Union Of India on 28 January, 2011Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.3043/2010
Friday, this the 28th day of January 2011
Honble Dr. K.B. Suresh, Member (J)
Shri Ravinder Kumar
r/o H.No.22-D, Railway Officers Enclave
Sardar Patel Marg, New Delhi-21
..Applicant
(Applicant in person)
Versus
1. Union of India
Through Secretary,
Ministry of Home Affairs, Govt. of India
North Block, Central Secretariat
New Delhi-1
2. State of Himachal Pradesh
Through Home Secretary
Govt. of Himachal Pradesh, Shimla 171002
3. The Accountant General (A&E)
Himachal Pradesh, Shimla 171003
..Respondents
(By Advocates: Ms. H Jayashree and Ms. Vandana for
Shri A K Bhardwaj for respondent No.1
Shri Abhishek Sood for respondent No.2
Shri Shiladitya Goswami for Shri Gaurang Kanth for
respondent No.3)
O R D E R (ORAL)Heard the learned counsel for the parties.2. The applicant was appointed in Indian Police Service in 1977. He was allocated to Himachal Pradesh cadre. On 22.3.2004, respondent No.2 in pursuance of the order of respondent No.1 compulsorily retired him. He thereafter filed OA-2207/2005 and in compliance of the directions of the Tribunal, he was reinstated back in service vide order dated 20.12.2007. Following the order of respondent No.1 dated 27.5.2008, the applicant joined duty on 12.6.2008 at Himachal Pradesh.3. It would appear that on 22.8.2009 respondent No.2 once again compulsorily retired the applicant on the order of respondent No.1 dated 13.8.2009. The applicant is aggrieved by this inaction of the respondents, as his pension and other lawful payments due to him were held up for no justifiable reasons, and therefore, he has approached the Tribunal through the present OA.4. Respondent No.1 had filed a counter affidavit wherein it is claimed that it is respondent No.2, who is authorized to sanction the payment of DCRG and other pensionary benefits to the applicant since he was borne in the cadre. They would say that they are to be treated only as a formal party and have nothing more to add in the matter.5. Respondent No.3 would submit that on his reinstatement in service, the applicant was deemed to have been placed under suspension apparently from the date of compulsory retirement on 5.3.2004 till the date of reinstatement of service on 27.5.2008. They would say that on examination of his service book, the necessary entries of deemed suspension period, service period, remittance of the amount of pension, gratuity and leave encashment already received at the time of retirement on 22.3.2004 were not found recorded in the service book. Therefore, the pension case was returned to the Department and a copy was apparently endorsed to the applicant as well. They would further say that they require a direction from the Government of India to determine whether the concerned period is qualified for pension or not since it was they, who had initiated the action on the suspension of the applicant.6. But the Tribunal had quashed the order in OA-2207/2005 on the ground that the copy of the advice of the CVC was not provided to the applicant, which has prejudiced the defence of the applicant. Therefore, it has an effect of quashing the orders in its entirety and nothing would survive for a fresh determination for any other authority other than the appellate authority, as provided under judicial review underArticle 227of the Constitution of India. Since that has become final, the matter is now settled.7. As a retired person had been running from pillar to post for no ostensible reason, in the context of the pleadings of the parties and on the basis of their oral persuasion, the following directions are being issued to the respondents:i) Respondent No.2 shall finalize all aspects of payment of pension, commuted value of pension, DCRG and other benefits due to the applicant, within a period of two months next and make it available to the applicant along with interest @ 9% within the time frame,ii) If such payment exceeds the above said period of two months, interest shall be payable from the beginning @ 24%; andiii) Respondent No.2 shall pay a cost of Rs.5000/- to the applicant.8. The OA is allowed to the extent noted above.( Dr. K.B. Suresh )
Member (Judicial)
/sunil/ |
687aa8fe-a75e-57f3-97fa-38a555884807 | court_cases | Allahabad High CourtBabu Son Of Buddhan And Ors. vs The State on 12 October, 1995Equivalent citations: 1996CRILJ2116ORDER
G.S.N. Tripathi, J.1. The then Mrd Addl. Sessions Judge, Bulandshahr vide his judgment and order dated 6-4-79 passed in S.T. No. 268 of 1978 State v. Babu Singh and Tejpal, held the accused appellants Babu and Tejpal guilty of a charge UnderSection 326/34IPC and 326IPCrespectively and sentenced them to undergo 4 years R.I. Co-accused Samai Singh was given benefit of doubt and acquitted.2. The prosecution case started on the basis of the FIR Exhibit Ka 1 lodged by Sohan Lal, PW 2 at the Police Station Sayana on 28-8-76 at 7 a.m. The occurrance took place in the same morning at about 6 a.m. The distance of the police station is 2 miles. It has been alleged that on the date of occurrance i.e. 28-8-76 around 6 a.m. the complainant's brother Mohan Lal, PW 1 was going to ease out. When he reached near the houses of Gopal and Tejpal accused, there were 8-9 other persons. They all pounced upon the complainant. Tejpal pierced his knife and badly injured Mohan Lal. The witnesses arrived after hearing the alarm, including Dal Chand. Dal Chand was injured by the knife by the accused. Thereafter, the accused bolted away. In the FIR, names of 9 accused in all have been mentioned.3. On the basis of the written report, chik was prepared at the police station by Constable Rajbir Singh and the case was registered in the G.D. The injured persons were referred for medical examination. Dr. S.U.K. Zuberi, PW 7 medically examined Mohan Lal at the District Hospital, Bulandshahr at 10.10 a.m. and found three incised wounds in the abdominal portion. details of which have boon given in the judgment of the learned lower Court. The injuries were serious in nature and they could prove fatal. They were caused by a sharp-edged weapon like knife. They were fresh. As the condition of the victim was very serious, he was referred to Safdarganj Hospital, Delhi, where he was examined by Dr. Suresh Pandit. He found three stab wounds-one of the wounds had pierced upto 5th and 6th vertibra, causing traumatic paralysis. The patient was discharged on 21-9-76 and his traumatic paralysis could not be cured. That has become a life-long gift, vide the statement of PW 6 Dr. A. Sural, who has proved his medical report prepared by Dr. Pandit.4. Dr. Indra Singh, P.W. 4 medically examined Dal Chand at PH. C. Siyana on 28-8-76 at 7.45 a.m. He had found a cut wound in the right hand finger of the victim. This injury was simple in nature, quite fresh and could have been caused by knife at 6 a.m. on that very date.5. The investigation was taken in the hand by Sri Sheo Prakash Sharma, who conducted in a very clumsy slip shod manner. He reached the spot on 14-9-76 because the injured as well as the complainant both were outside the district. He prepared the site-plan and after interrogating the witnesses, he submitted the charge sheet on 22-10-76.6. In order to prove its case, the prosecution has examined PW 1 Mohan Lal, the injured. He has said that near the house of the accused Babu and Tejpal, he was overpowered by them by saying that he had been instrumental in lodging the report against them and causing mental anxieties to them. Accused Babu caught hold of his hands and brought him on the ground. Tejpal pierced his knife in his body and he thereafter became absolutely powerless. Dal Chand had came to his rescue, who also received injury Thereafter, he was shifted to the police station and then to Saiyana Hospital and thereafter to the District Hospital Bulandshahr and finally to the Safdarganj Hospital, Delhi.7. PW 2 Sohan Lal is the complainant. He has narrated the story as contained in the FIR. He has exonerated the other 7 accused by saying that he could not identify them correctly. In other respects, his statement is the same.8. PW 3 Rajmal arrived on the spot after hearing the alarm and saw the accused injuries to Mohan Lal.9. Other evidence is formal in nature. For instance PW 4 Dr. Indra Kumar has proved the injury report of Dal Chand, PW 7 Dr. Zuberi has proved the injury report of Mohan Lal and PW 6 Dr. A. Sural has proved the injury report prepared at the Safdarganj Hospital, Delhi.10. PW 5 Dr. Sheo Prakash Sharma is the Investigating Officer.11. The accused in their statements underSection 313Cr. P.C. have generally denied the allegations against them. They have said that on account of enmity, they have been falsely implicated. The accused have led no evidence in defence.12. After appraisal of the entire evidence and circumstances on the record, the learned lower Court came to the conclusion that the prosecution case was fully proved against the accused Babu and Tejpal appellants alone. He convicted and sentenced them as noted above. Co-accused Samari Singh was given benefit of doubt and acquitted.13. The accused have felt aggrieved and filed this appeal.14. I have heard learned counsel for the parties at stretch and gone through the record. I find that there is absolutely no force in this appeal and it deserves to be dismissed.15. The fact that Mohan Lal had received injuries is proved from the statements of Dr. Zuberi and Dr. Sural. They have not been seriously cross-examined. The only cross-examination of Dr. Suraj is that these injuries could not be fatal. To Dr. Indra Singh, it has been put that the injuries could have been caused by a spear and they were 4-6-hours old. Not only this, it was suggested to Mohan Lal in paragraph I of the cross examination that he had in fact received injuries around 3 or 4 a.m. at the hands of. some unknown persons and on account of enmity, he has falsely implicated Babu and Tejpal, accused, Hollowness of this suggestion is explicit. It was not put to the Doctors aforesaid that these injuries could have been caused around 3-4 a.m. in that morning. The Doctors have found the injuries to be fresh. Dr. Zuberi had examined the injuries at 10.10 a.m. They were bleeding at the time of examination. Therefore by no stretch of imagination, it could be said that the injuries could have been received around 3-4 a.m. in the morning. Not only this, if it were a fact that the injuries had been received at 3-4 a.m., they must have lodged the report earlier as the police station is about 2 miles. The hospital is also nearby. So the suggestion that the injuries could have been received at 3-4 a.m. is absolutely without any substance and has been rightly rejected by the learned lower court.16. It is also established that these injuries although could not have proved fatal.... they caused a permanent traumatic paralysis to Mohan Lal and that will remain till his life. So he has been permanently incapacitated and made handicapped. Not only this, the injured remained in the Hospital for nearly a month. So from all standards, this is a case in which the charge prima facie underSection 326IPC is established.17. Now the question is as to whether these accused were responsible for causing the injuries aforesaid. There was a background of enmity. In the FIR itself it has been mentioned that there was a litigation between the parties and on account of that the accused were feeling inimical towards the complainant and his brother. Mohan Lal has stated in the Examination-in-Chief that his brother Sohan Lal was holding a cycyle repairing shop. On account of that, there was dispute between Tejpal's father Gopal and Sohan Lal. Tejpal had filed a criminal case in 1973 against the complainant. In the cross-examination, in paragraph 3, further he has said that Tejpal launched the criminal case against him and he had taken it ill when Gopal accused had falsely implicated him in a criminal case. However, he was given the benefit of doubt of First Offenders' Act. His brother Sohan Lal was also a co-accused.18. Sohan Lal, PW 2 has also staled that it was 4-5 years prior to the incident that Tejpal and his father Gopal had assaulted him. There was a dispute regarding the cycle repairing shop as well and the criminal case has been launched. This way, right from the very inception, the prosecution has admitted that there was an enmity between the parties. Not only this, even the accused have stated that there was an enmity and on account of that, they have been falsely implicated. Enmity is a double edged weapon and it cuts both ways. However, the question is as to whether the accused have been falsely implicated on account of enmity. As held earlier, the factum of injuries to Mohan Lal and Dal Chand is not disputed in this case. Therefore, if the injured persons had really seen the assailants, they would normally not let them go and substitute them by imaginary persons. That is against the rule of nature. Since the injuries were there, only the real assailants could have been implicated and not substituted by others.19. The nature of injuries is such that the assailants must have come in a very close contact with the victim. They were unwittingly helping the victim to identify them without any mistake and that is what has happened in this case. Therefore, it cannot be said that Mohan Lal, PW I would not have identified his assailants. I find that the injuries of Mohan Lal could not have been caused by spear, rather, they could have been caused by the knife only. Role of Babu is that he caught hold of the victim Mohan Lal and brought him on the ground vacilitating Tejpal to cause knife injuries. Had Babu not played this role, it was quite likely that the victim might have run away. But the act of Babu fully ensured that the injured had to be done to death. It was a providential escape that Mohan Lal escaped death. A very lengthy cross-examination has been faced by Mohan Lal. But he has remained unscathed and unscratched. Simply because he was interrogated after a lapse of time, for his fault, because he was himself hospitalized for over a month, it will not belie the prosecution story. He has described the manner in which he was shifted from one hospital to another. A look at the injury report shows that he must have been semiconscious after receipt of these injuries. Therefore, a detailed and photographic description cannot be expected from him. In paragraphs, he said that he tried to get up after receipt of the injuries. But Babu did not permit him to do so. Further, he says that he is semi-literate. He could only sign his name and nothing more. Therefore,-I find that after ignoring the minor tit-bits here and there, solitary statement of Mohan Lal is sufficient to record a conviction in this case. He has also proved the injuries of Dal Chand. Therefore, the presence of Dal Chand cannot be disputed nor, in fact, it has been disputed.20. Sohan Lal, it seems, reached after the occurrence had taken place, but soon thereafter. It appears from his statement that he had named some other persons along with these appellants on account of suspicion. He said that after seeing the injuries of his brother, he himself became semi-conscious. But he admits that in fact, only these two appellants were the real assailants. Since others were also present and they were morally supporting these accused, he had named them in the FIR. I think that those persons have already been let off by the police. No adverse inference can be drawn against the prosecution on this ground. He moved the machinery of law without delay and lodged the report. Therefore, the statement of Sohan Lal, PW 2 is only of a corroborative value, although he is not technically proved to be an eye witness of the actual assault.21. PW 3 Rajmal is an independent witness and resident of the same locality. He has been named as a witness in this FIR also. After hearing the alarm, he reached the spot without loss of time. He saw that Babu had caught hold of the hands of Mohan Lal and had brought him on the ground and Tejpal was piercing his knife. In the cross-examination, he has said that his house is hardly at a distance of 200 paces and when he reached there, he saw about 25 persons surrounding the injured. Nobody tried to catch hold of the culprits. Further in paragraph 3, he says that apart from these accused, other persons were also there. They were not helping in the assault actually. But some of them had knives and spears also. Although they did not participate in the mar-pit. An effort was made to prove that he is the collateral of the victim. But he has boldly denied it. Even the accused have not led any evidence that Rajmal is a partisan witness. Therefore, there is no reason to discard the statement of Rajmal.22. Thus, after a thread-bare analysis of the entire evidence and circumstances on the record I come to an irresistible conclusion that the prosecution has proved its case against the accused beyond a shadow of reasonable doubt and the lower Court has rightly convicted the accused in this case.23. It is urged that Tejpal was a minor at the time of occurrence. There is no force nor any evidence on the record to prove this allegation.24. The last argument was that some leniency should be shown to the accused in the sentence. I think, it is not justified. The only mistake which the learned lower Court has done, in this case, is that he had been very soft in sentencing the accused, who have committed such heinous offence causing permanent damage to the victim. Therefore, further softening in sentence will make administration of justice ludicrous and an object of scorn. That should not be permitted.25. The appeal is dismissed. The accused are on bail. Their bail bonds and surety bonds are cancelled. The CJ.M. concerned is directed to take them into custody at once to serve out the sentence. He shall also intimate this Court within a month from today about the compliance of this order. |
83c04022-2067-5483-b266-9c3707dcd016 | court_cases | Income Tax Appellate Tribunal - MumbaiNitco Tiles Ltd, Mumbai vs Department Of Income Tax on 14 December, 2009IN THE INCOME TAX APPELLATE TRIBUNAL
MUMBAI BENCH 'B' : MUMBAI
BEFORE SHRI D.K. AGARWAL, (JM) AND SHRI RAJENDRA SINGH,(AM)
ITA No.1599/Mum/2010
Assessment Year : 2006-07
Asstt. Commissioner of Income tax
Central Circle-46
Room No.658, 6th Floor
Aayakar Bhavan, M.K. Road
Mumbai-20. .....(Appellant)
Vs.
M/s. Nitco Tiles Ltd.
85-86, Maker Chambers III
Nariman Point
Mumbai-21. .....(Respondent)
P.A. No.(AAACN 1674 N)
Appellant by : Shri Hari Govind Singh
Respondent by : None
ORDERPer D.K. AGARWAL (JM).This appeal preferred by the revenue is directed against the
order dated 14.12.2009 passed by the ld. CIT(A) for the Assessment
Year 2006-07.2. Briefly stated facts of the case are that the assessee company is
engaged in manufacturing and sale of different kinds of tiles, filed
return declaring total loss of Rs.1,06,93,546/-. It has also worked out
book profit at Rs.23,29,96,594/- as per special provisions of sec.115JB2 ITA No.1599/M/10A.Y:06-07
of the Income tax Act, 1961(The Act). During the course of
assessment proceeding the Assessing Officer observed that there is a
big difference between the sale price of various kinds of marbles. On
further examination the Assessing Officer observed that the assessee
company has sold about 80% of its marbles as an institutional sales @
Rs.217.72 per sq.ft., therefore, there is no reason why such rate could
not be realised from sales to others and in particulars from its own
related parties i.e. Maharashtra Marble Company whose proprietor is
Director of the Company. It cannot be inferred that only institutional
buyers have opted for exclusive quality of the marble having greater
realisation rate. Also, the rate of Rs.217.72 per sq.ft. is average rate.
This means that some quantity has fetched value more than this rate.
Under these circumstances the Assessing Officer after considering the
assessee's explanation in this regard, therefore, rejected the book
results of the assessee and applied average sale value of Rs.217.72
per sq.ft. to the entire sale of marble and thereby worked out the total
amount of sales Rs.6,24,36,531/- (Rs.217.72 x 286774.44 sq.ft.) as
against Rs.5,27,02,304/- and hence he added the difference
Rs.97,34,227/- to the income of the assessee as suppressed sales.
The Assessing Officer after making some other disallowances
completed the assessment under normal provisions Rs.9,61,680/- and
u/s.115JB Rs.23,29,96,594/-, vide order dated 23.12.2008 passed
under section 143(3) of the Act.3. On appeal, the ld. CIT(A) following the Tribunal order in the
assessee's own case for the Assessment Years 2001-02 and 2002-03
and order of his predecessor for the Assessment Year 2005-06 and
keeping in view the rule of consistency deleted the addition made by
the Assessing Officer.3 ITA No.1599/M/10A.Y:06-074. Being aggrieved by the order of the ld. CIT(A) the revenue is in
appeal before us taking following grounds of appeal:-"1. On the facts and in the circumstances of the case and
in law, the ld. CIT(A) erred in allowing the relief in full
relating to the addition of Rs.97,34,227/- made on
account of the suppressed sales in the assessment order
by applying the provisions ofsection 145of the I.T. Act,
1961.2. On the facts and in the circumstances of the case and
in law, the ld. CIT(A) erred in ignoring the fact that the
decision of the Hon'ble ITAT for Assessment Year 2001-02
and for Assessment Year 2002-03 in assessee's own case
was not accepted by the department and appeal filedu/s.
260Aof the Act is pending before the Hon'ble Mumbai
High Court."5. At the time of hearing the ld. DR while relying on the order of
the Assessing Officer submits that there is no dispute that the Tribunal
in the earlier years has decided the similar issue in favour of the
assessee, therefore, the issue may be decided accordingly.6. Having carefully heard the submissions of the ld. DR and
perusing the material available on record we find that the ld. CIT(A)
while deleting the addition of suppressed sales of Rs.97,34,227/- has
followed the order of the Tribunal in assessee's own case for the
Assessment Years 2001-02 and 2002-03. In the absence of any
contrary material or distinguishing feature placed on record by the
revenue to show that the said order of the Tribunal has been reversed
by the Hon'ble Jurisdictional High Court or not applicable, we
respectfully following the order of the Tribunal supra, in the assessee's
own case, decline to interfere with the order passed by the ld. CIT(A)4 ITA No.1599/M/10A.Y:06-07
on this account and accordingly the grounds taken by the revenue are
rejected.7. In the result, revenue's appeal stands dismissed.Order pronounced in the open court on 15.12.2010.Sd/- Sd/-
(RAJENDRA SINGH) ( D.K. AGARWAL )
ACCOUNTANT MEMBER JUDICIAL MEMBER
Mumbai, Dated: 15.12.2010.
Jv.
Copy to: The Appellant
The Respondent
The CIT, Concerned, Mumbai
The CIT(A) Concerned, Mumbai
The DR " " Bench
True Copy
By Order
Dy/Asstt. Registrar, ITAT, Mumbai. |
f7bde9e2-39f7-5413-98a9-0f84347bbf94 | court_cases | Gujarat High CourtDigviyajsinh Mahendrasinh Chavda & vs State Of Gujarat & 5 on 5 February, 2015Author:K.M.ThakerBench:K.M.ThakerC/SCA/13857/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13857 of 2014
With
SPECIAL CIVIL APPLICATION NO. 15057 of 2014
With
SPECIAL CIVIL APPLICATION NO. 14849 of 2014
With
SPECIAL CIVIL APPLICATION NO. 14330 of 2014
With
SPECIAL CIVIL APPLICATION NO. 14331 of 2014
With
SPECIAL CIVIL APPLICATION NO. 15805 of 2014
With
SPECIAL CIVIL APPLICATION NO. 16620 of 2014
With
SPECIAL CIVIL APPLICATION NO. 16365 of 2014
With
SPECIAL CIVIL APPLICATION NO. 1100 of 2015
With
SPECIAL CIVIL APPLICATION NO. 1141 of 2015
With
SPECIAL CIVIL APPLICATION NO. 2125 of 2015
With
CIVIL APPLICATION NO. 193 of 2015
In
SPECIAL CIVIL APPLICATION NO. 14849 of 2014
With
CIVIL APPLICATION NO. 196 of 2015
In
SPECIAL CIVIL APPLICATION NO. 14330 of 2014
================================================================
DIGVIYAJSINH MAHENDRASINH CHAVDA & 10....Petitioner(s)
Versus
STATE OF GUJARAT & 5....Respondent(s)
================================================================
Appearance:
MR. HJ KARATHIYA, ADVOCATE for the Petitioner(s) No. 1 - 11
GOVERNMENT PLEADER for the Respondent(s) No. 1
Page 1 of 15
C/SCA/13857/2014 ORDER
MR DG SHUKLA, ADVOCATE for the Respondent(s) No. 2
NOTICE SERVED for the Respondent(s) No. 1
================================================================
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 05/02/2015
ORAL ORDER1. The above captioned petitions are preferred
against the notification dated 25.09.2014 issued
by the respondent-Commission.2. After the petitions came to be filed, or
around that time, the Commission had, on its own,
undertaken the exercise of correcting the list/
notification dated 25.09.2014 and revised the
said list / result declared vide commission's
notification dated 25.09.2014.3. The said entire exercise was undertaken by
the Commission on its own and not under any order
of the Court or at the suggestion of the Court,
much less under the direction by the Court.Page 2 of 15C/SCA/13857/2014 ORDER4. The Commission, by undertaking such exercise,
on its own decision, revised the list / result
notified by its vide Notification dated
23.09.2014 and on its own revised the list /
result and prepared new (i.e. revised list /
result).5. During the hearing of the group of petitions,
GPSC informed the Court about its said action.
Therefore, in one of the above mentioned
petitions i.e. Special Civil Application No.
15805 of 2014, order dated 13.01.2015, came to be
passed, whereby the commission was permitted to
open the sealed cover which contained the revised
list i.e. the list / result dated 25.09.2014
which was revised by the respondent commission on
its own (and not under any direction or
suggestion by the Court) and to place it on the
record of the petition. The said order in Special
Civil Application No. 15805 of 2014 dated
13.01.2015 reads thus:-Page 3 of 15C/SCA/13857/2014 ORDER1. Mr.Shukla, learned advocate for the GPSC
submitted that after publication of the select
list, GPSC had undertaken certain exercise as a
result of which, the impugned select list has
been revised.2. He further submitted and clarified that in
view of pendency of the petition and certain
restraint orders passed by the Court, which are
in operation, GPSC has not implemented the
revised list and has not declared/published the
said list.3. In this background, learned advocate for
the GPSC prayed for permission to open the sealed
cover and to place the revised list on record,
with clarification that until any fresh order is
passed by the Court, GPSC or the Government will
not act upon and will not operate the revised
list.4. Learned advocates for the petitioners and
respondents submitted that they do not have any
objection if the respondent-GPSC is permitted to
open the sealed cover and place the revised list
on record of the petition, subject to the
condition that it should not be operated.5. In view of the submissions by learned
advocate for the respondent-GPSC and learned
advocates for other respondents and the
petitioners, the respondent-GPSC is permitted to
open the sealed cover and to place the revised
list on record of the petition.6. It is clarified that this order is passed
only to ensure that GPSC is not faced with
allegation of breach of earlier orders passed by
the Court and also to examine the steps taken by
the GPSC after publication of earlier impugned
select list.7. Permission is granted with further
clarification that revised list will not be acted
upon and/or implemented unless any order granting
such permission is passed by the Court.Page 4 of 15C/SCA/13857/2014 ORDER8. The list shall be placed on record under an
affidavit and copies thereof shall be served to
the learned advocates for the respondents and
petitioners. This Process shall be completed on
or before 15.01.2015.For the said limited purpose, the matter shall be
listed on the Cause List of 15.01.2015, but
hearing shall be on 16.01.2015."6. Thereafter, the respondent Commission
circulated Civil Application being Civil
Application No. 415 of 2015. In the said Civil
Application, the respondent Commission prayed,
inter alia, that:-"5(B) Your Lordships may be pleased to modify the
order dated 13.01.2015 and be further to permit the
applicant Commission to publish the revised result of
the examination in the Official Gazette in two parts
and to display the revised result on its Notice Board
as provided under the said Rules before placing on
record under an affidavit and serving copies thereof
to the learned advocates and serving copies thereof
to the learned advocates for the original respondents
and petitioner and the time to complete the said
process may be extended till 27.01.2015 in the
interest of justice."7. After considering the said application, the
Court passed order dated 21.01.2015, which reads
thus:-Page 5 of 15C/SCA/13857/2014 ORDER1.Heard Mr. Shukla, learned advocate for the Gujarat
Public Service Commission ("GPSC" for short) Mr.
Majmudar, learned advocate for Mr. Kuntal Joshi,
learned advocate for the respondent Nos. respondent
Nos. 1 to 5, Mr. P.K. Jani, learned Additional
Advocate General for respondent No. 6 and Mr.
Upadhyaya, learned advocate for the respondent No. 7.2. Having regard to the fact that certain other
petitions involving similar issue are also filed and
such other matters are being considered along with
Special Civil Application No. 15805 of 2014 (wherein
this application is taken out) learned advocates
appearing in the said other matters are also heard
with regard to request made in this application.3. Accordingly Mr. Yagnik, learned advocate whose
application (on behalf of selected candidates)
seeking permission to join the proceedings and Mr.
Mehta, learned Senior Counsel have also been heard.4. In present application the applicant GPSC has
prayed, inter alia, that:-5(A) Your Lordships may be pleased to allow this Civil
Application. (B) Your Lordships may be pleased to modify the
Order dated 13.01.2015 and be further pleased to permit the
Applicant Commission to publish the Revised Result of the
examination in the official gazette in two parts and to display
the Revised Result on its notice board as provided under the
said Rules before placing on record under an affidavit and
serving copies thereof to the learned advocates for the
original respondents and petitioners and the time to complete
the said process may be extended till 27.1.2015 in the interest
of justice."5. The above quoted request is made by the applicant
in light of and in pursuance of the order dated
13.1.2015 passed in SCA No. 15805 of 2014 by the
Court. The said order was passed after hearing
learned advocates Mr. Yagnik and learned Senior
Counsel Mr. Mehta and having regard to the fact that
all learned advocates had declared that they had no
objection if the revised list was placed on record of
the petition provided it would not be implemented.The said order dated 13.1.2015 reads thus:-1.Mr.Shukla, learned advocate for the GPSC submitted that after
publication of the select list, GPSC had undertaken certain
exercise as a result of which, the impugned select list hasPage 6 of 15C/SCA/13857/2014 ORDERbeen revised.2.He further submitted and clarified that in view of pendency
of the petition and certain restraint orders passed by the
Court, which are in operation, GPSC has not implemented the
revised list and has not declared/published the said list. 3.In
this background, learned advocate for the GPSC prayed for
permission to open the sealed cover and to place the revised
list on record, with clarification that until any fresh order
is passed by the Court, GPSC or the Government will not act
upon and will not operate the revised list.4.Learned advocates for the petitioners and respondents
submitted that they do not have any objection if the
respondent-GPSC is permitted to open the sealed cover and place
the revised list on record of the petition, subject to the
condition that it should not be operated.5.In view of the submissions by learned advocate for the
respondent-GPSC and learned advocates for other respondents and
the petitioners, the respondent-GPSC is permitted to open the
sealed cover and to place the revised list on record of the
petition6.It is clarified that this order is passed only to ensure that
GPSC is not faced with allegation of breach of earlier orders
passed by the Court and also to examine the steps taken by the
GPSC after publication of earlier impugned select list.7.Permission is granted with further clarification that revised
list will not be acted upon and/or implemented unless any order
granting such permission is passed by the Court.8.The list shall be placed on record under an affidavit and
copies thereof shall be served to the learned advocates for the
respondents and petitioners. This Process shall be completed on
or before 15.01.2015. For the said limited purpose, the matter
shall be listed on the Cause List of 15.01.2015, but hearing
shall be on 16.01.2015."6. After said order dated 13.1.2015 came to be
passed, the applicant GPSC has taken out present
application citing the provisions contained in Rule
21 of the Assistant Conservator of Forests / Range
Forest Officer's Competitive Examination Rules, 2008.7. So as to justify and support the request made in
the application, the applicant has averred and stated
that:-"2. The applicant Commission submits that as provided under
Rule 21 of the Assistant Conservator of Forests / Range Forest
Officer's Competitive Examination Rules, 2008, the Applicant
Commission is required first to publish the result of the
examination in the Official Gazette in two parts and furtherPage 7 of 15C/SCA/13857/2014 ORDERrequired to display the result on its Notice Board.3. The applicant commission is, therefore, required to publish
the Revised Result in the Official Gazette in two parts and
display the Revised Result on its Notice Board as provided in
the said Rules before placing on record under an Affidavit and
serving copies thereof to the learned Advocates for the
original respondents and petitioners on or before 15.1.2015 as
directed by this Hon'ble Court.4.The applicant commission, therefore, submits that it would be
in the interest of justice and fitness of things that the
applicant commission be permitted to publish the revised result
of the examination in the official gazette in two parts and to
display the Result on its Notice Board as provided under the
said Rules before placing on record under an Affidavit and
serving copies thereof to the learned Advocates for the
original respondents and petitioners and the time to complete
the said process may be extended till 27.1.2015 in the interest
of justice"8. Before proceeding further it is relevant and
necessary to mention that earlier, vide order dated
13.1.2015 the Court had, subject to the conditions
and clarifications mentioned in the order and GPSC's
stipulation recorded in the order, permitted GPSC to
open the select list and place it on record of the
petition.8.1 However, in view of the provisions contained
under Rule 21 of the Assistant Conservator of Forests
/ Range Forest Officer's Competitive Examination
Rules, 2008, the applicant GPSC has taken out present
application with above quoted request.9. At the time of hearing of this application, Mr.
Jani, learned Additional Advocate General, Mr. Mehta,
learned Senior Counsel, Mr. Majmudar, learned
advocate for Mr. Kuntal Joshi, learned advocate for
the respondent Nos. 1 to 5 and Mr. Upadhyaya, learned
advocate for respondent No. 7 have declared and
submitted that they do not have any objection if the
request made in the application is granted.10. However, Mr. Yagnik, learned advocate
representing the candidates whose names are in the
select list which is already published by the GPSC
(and which is the subject matter in the application)
raised certain objections and expressed certain
reservation, on various grounds; mainly on the ground
that the petition itself is premature and there is noPage 8 of 15C/SCA/13857/2014 ORDERreason or justification for GPSC to revise the select
list applying principles and ratio to the judgment by
Apex Court in case ofUnion of India vs. Ramesh Ram
and others(2010 [7] SCC 234)11. Learned advocate for the GPSC and learned
Additional Advocate General as well as Mr. Mehta,
learned Senior Counsel, Mr. Mr. Majmudar, learned
advocate for Mr. Kuntal Joshi, learned advocate for
the respondent Nos. 1 to 5 and Mr. Upadhyaya, learned
advocate for respondent No. 7 have submitted that the
said objection and contention can be considered at
the time when the revised select list is placed on
record after its publication and when it is examined
by the Court, however at this stage when, the
applicant GPSC is merely seeking permission to
publish the list, it would not be necessary to
examine the said issue and the objections against the
revised select list.12. The Court is of the view that there is substance
in the submission made by learned Additional Advocate
General and learned advocates for the respondents and
learned advocate for the applicant.13. Having regard to the facts of the case and the
provision which the applicant GPSC has relied and
also having regard to the fact that under order dated
13.1.2015 the Court, subject to the condition and
stipulation recorded therein, already granted
permission to GPSC to place on record the revised
list and that the said order was passed with consent
of the learned advocates, relief prayed for in
present application is granted.14. However, permission is granted subject to the
condition that the select list will not be operated
and implemented by GPSC until any other or further
order is passed by the Court and the condition that
all objections and contentions on behalf of the
concerned candidates (i.e. those whose names are
already published in the select list and those whose
names are not included in the select list) are kept
open and they will be considered at the time of
hearing of the petition.15. In that view of the matter the order dated
13.1.2015 stands partly modified.Page 9 of 15C/SCA/13857/2014 ORDER16. Mr. Shukla, learned advocate for the applicant
submitted that GPSC will complete necessary process
today itself by forwarding the list for purpose of
publication. In view of the said submission, it is
expected that the applicant GPSC will complete the
process of getting the list published in the Gazette
by 23.01.2015. Accordingly the Civil Application is
disposed of."8. After the said order, the respondent
Commission issued notification dated 23.01.2015
and thereunder declared the revised list / result
(which is subject to conditions mentioned in the
order dated 21.01.2015).9. The said notification dated 23.01.2015 was
subsequently placed on record of the petitions.10. When the said notification was read in the
Court, it was noticed that the Commission had not
presented the facts accurately in the said
notification inasmuch as it was mentioned in the
said notification dated 23.01.2015 that "... has
been revised as per oral order of the Hon'ble
High Court in Special Civil Application No. 15805Page 10 of 15C/SCA/13857/2014 ORDERof 2014 dated 21.01.2015...". (emphasize
supplied)11. The said statement in the notification dated
23.01.2015 mentioned, and thereby created
impression, that the notification / list was
revised because of the order by the Court and as
per Court's order i.e. order dated 21.01.2015.
Whereas in fact the GPSC had undertaken that
exercise on its own and even before the hearing
of the petitions commenced before the Court and
long before the order dated 21.01.2015.12. The said statement was incorrect (inasmuch as
the commission had revised the notification /
list on its own and even before the petitioners
were heard by the Court). The list / result was
not revised under any order of the Court or even
at the suggestion of the Court, much less under
any direction by the Court.Page 11 of 15C/SCA/13857/2014 ORDER13. Therefore, the respondent-Commission was
directed to delete the said statement and rectify
the misrepresentation of the facts by issuing
proper corrigendum.14. Thereafter, the respondent-Commission issued
corrigendum dated 04.02.2015.15. In the said corrigendum again the respondent
Commission has made statement which is not
accurate and is misleading and gives impression
as if the Correction / revision in the list /
result and notification dated 25.09.2014 was made
pursuant to i.e. in view of and on account of and
as per the order passed in Civil Application No.
415 of 2015, whereas by the order dated
21.01.2015 in Civil Application No. 415 of 2015,
the Court had merely allowed the respondent-
Commission to declare the revised list, which was
already prepared by the Commission on its own.16. In the corrigendum dated 04.02.2015, thePage 12 of 15C/SCA/13857/2014 ORDERCommission has again mentioned that "... has been
revised pursuant to Special Civil Application No.
Civil Application No. 415 of 2015 in Special
Civil Application No. 15805 of 2014 filed by the
Commission before the High Court of Gujarat with
a prayer to permit the Commission to publish the
revised list..."17. The said statement in the corrigendum gives
the impression as if the notification dated
25.09.2014 and corrected on 16.10.2014 was
revised in view of and pursuant to order dated
21.01.2015 in Civil Application No. 415 of 2015,
whereas the fact is otherwise inasmuch the
Commission has revised the list / result and the
notification dated 25.09.2014 on its own.18. Therefore, last chance is granted to the
Commission to rectify its mistake and incorrect
statement in its notification and corrigendum.19. If the mistake and incorrect statements arePage 13 of 15C/SCA/13857/2014 ORDERnot corrected on or before 07.02.2015, then
appropriate actions against the responsible
officer will be taken for making incorrect
statements in the Notification dated 23.01.2015
and in the corrigendum dated 04.02.2015.20. The Commission shall clearly mention in the
fresh corrigendum that the list / result and the
notification dated 25.09.2014 were corrected by
its own and not in view of and / or not on
account of and/or not under any direction or
suggestion or order of the Court.21. The Commission shall also clarify that the
statements in the notification dated 23.01.2015
and the corrigendum dated 04.02.2014 are deleted
and should be treated as deleted.22. The Commission shall specifically mention
that the revision is effected by the Commission
on its own and it will subject to the orders byPage 14 of 15C/SCA/13857/2014 ORDERthis Court. For the said purpose, time until
07.01.2015 is granted.23. At the request of learned advocate for GPSC,
though time was granted to file affidavit for
certain unforeseen and unavoidable circumstances,
he could not file affidavit today and prayed for
more time, i.e. until 9.2.2015.24. However, in view of the submissions by other
learned advocates, learned advocate for GPSC was
requested to make submissions with regard to
other aspects and contentions raised by the
petitioners. Accordingly, learned advocate for
GPSC commenced his further submissions. He has
not completed his submissions. Therefore,
hearing of group petitions is adjourned to
6.2.2015.(K.M.THAKER, J.)
GirishPage 15 of 15 |
aee75924-7a32-5b69-b15f-2d0608ae3843 | court_cases | Delhi District CourtDelhi Development Authority vs Smt. Naresh Kumari on 12 September, 2018IN THE COURT OF SH. NAVEEN KUMAR KASHYAP
SENIOR CIVIL JUDGE CUM RENT CONTROLLER(N-W)
ROHINI COURTS:DELHI
RCA NO. 21/16
Delhi Development Authority
Through its Secretary
Vikas Sadan, INA,
New Delhi. ... Appellant
VERSUS
1. Smt. Naresh Kumari
W/o. Sh. Satish Sharma
2. Sh. Satish Sharma
S/o. Late Sh. Goverdhan Dass
Both resident of :
House No. 319, Haider Pur,
Delhi. ...RespondentAppeal presented on : 11.02.2016
Appeal decided on : 12.09.2018
Decision : Appeal Allowed.
FINAL JUDGMENT IN 1st REGULAR APPEAL1. By this judgment, I would decide the present appeal which is filed
by original defendant/ DDA against the final judgment and decreeRCA No. 21/2016 Page No..1 of 11DDA Vs. Naresh Kumari & Anr.dated 16.12.2015 passed by Ms. Chhavi Kapoor, Ld. Civil Judge-
VI (West), Delhi, in original suit titled as "Naresh Kumari & Anr.
Vs. DDA" bearing original civil suit No. 444/14.2. Originally the plaintiffs/respondents filed the suit for permanent
injunction simplicitor way back in the year 1996. It is prayed in
such suit that a decree of permanent injunction be passed in their
favour and against the original defendant/appellant, their agents
etc., thereby restraining them from entering, interfering,
demolishing and disturbing the peaceful possession of the
plaintiffs and other occupants in the suit property.3. By such impugned judgment and decree dated 16.12.2015 such
Ld. Civil Court was pleased to decree the suit of the original
plaintiff/present respondent. It was ordered that the
appellant/defendant/DDA can only evict the plaintiffs from the suit
property by resorting to due process of law.4. In nutshell, it is stated in the present appeal by DDA/ defendant
no.1 that Ld. Trial Court has committed grave error in appreciating
the evidence. That mere suit for permanent injunction is not
maintainable in the facts and circumstances of the present suit.
That no Lal Dora certificate is filed or proved by the plaintiffs.
That Ld. Trial Court wrongly held that plaintiffs are in settled
possession of suit property. That the suit property is already stand
duly acquired way back and same is already placed at the
disposal of the appellant/DDA vide order dated 27.08.1980.5. As per record, no reply on merit is filed by the respondent side.But only a reply filed by the respondent to stay application of the
appellant.In such reply, the plaintiffs/respondent repeated the
stand taken by them in their original suit and during evidence inRCA No. 21/2016 Page No..2 of 11DDA Vs. Naresh Kumari & Anr.trial Court. It is further claimed that it is an undisputed fact that
LAC or DDA has not paid or even offered compensation of
alleged compensation of the land of the suit property in question.
It is further claimed thatRight To Fair Compensation And
Transparency In Land Acquisition, Rehabilitation and
Resettlement Act, 2013has come into effect from 01.01.2014. It
is further claimed that underSection 24 (2)of such Act, if five
years have already passed prior to commencement of this Act
and physical possession of the land/suit property has not been
taken or the compensation has not been paid, the said acquisition
proceedings shall be deemed to have lapsed. It is further claimed
that in the present suit neither physical possession is taken nor
compensation is offered or paid by the appellant to the plaintiffs.6. I have heard both the sides and gone through the record including
case law filed by both sides. Further, I have gone through the trial
court record including the evidence, impugned judgment and
decree in question dated 16.12.2015.7. It is held by the Ld. Trial Court that there are no title documents in
favour of the plaintiffs or their ancestors showing their ownership
over the suit land. It is further held by the Ld. Trial Court that the
plaintiffs and their family members failed to show any revenue
record in their favour to show their valid title to the property. But it
is held by the Ld. Trial Court that the plaintiffs and their family had
been in continuous and settled possession of 520 sq. yards of
land of khasra no. 15/1, village Haider Pur, Delhi/suit property.In
fact, it is further held that even appellant/DDA has not denied the
possession of the plaintiffs over the suit property, but their
defence is that such land belongs to government and is alreadyRCA No. 21/2016 Page No..3 of 11DDA Vs. Naresh Kumari & Anr.stand acquired. In fact, it is further held that the plaintiffs have not
denied that 3919 bigha and 2 biswa of land in such village was
acquired by LAC on 06.12.1996, but plaintiffs claimed that their
property was left out. But ultimately, Ld. Trial Court held that
plaintiffs failed to prove that their land was not acquired by DDA in
such acquisition proceedings. It was further held that the plaintiffs
never challenged such land acquisition proceedings. It was further
held that suit property/land has been placed at the disposal of the
appellant/DDA vide such notification dated 27.08.1980.
It may be noted at this stage that the plaintiffs/present respondent
have not challenged such findings of Ld. Trial Court. As such,
same have attained finality.8. But it was held further by Ld. Trial Court that DDA/appellant has
not taken physical possession of the land from the plaintiffs and
they continued to be in long and settled possession thereof. As
such, it was held that plaintiffs are entitled to protect their settled
possession against forceful and illegal dispossession.
Accordingly, it was held by the Ld. Trial Court that the
DDA/appellant can only evict the plaintiffs from the suit property
by resorting to due process of law.9. It is pertinent to note that the relief which is granted by the Ld.
Trial Court is not exactly what is prayed by the plaintiffs. Plaintiffs
sought a relief that a decree of permanent injunction be granted
thereby restraining DDA/appellant from entering, interfering,
demolishing and disturbing the peaceful possession of the
plaintiffs and other occupants in the suit property.10.Further, in any case, in the considered view of this Court, it is
proved on record, as also held by the Ld. Trial Court, the landRCA No. 21/2016 Page No..4 of 11DDA Vs. Naresh Kumari & Anr.where the suit property is situated is already acquired by the
DDA.11.Thus, on the basis of material on record, it is concluded that
appellant/DDA is the owner of the suit property in question. It is
further held that no serious attempt is made by the plaintiff's side
to challenge claim of ownership of DDA over such land.12.Under these circumstances, it must be remembered that
possession follows the title and in any case, there can not be any
injunction against the true owner, which is DDA as per evidence
on record in the present suit.13. Further, it is fruitful to note at this stage that it is settled law that
the relief of permanent injunction is an equitable relief and the
person claiming it must come with clean hands.14.In fact in the landmark judgment ofAnathula Sudhakar vs P.
Buchi Reddy (Dead) By Lrs & Ors[(2008) 4 SCC 594], the
general principles as to when a mere suit for permanent injunction
will lie, and when it is necessary to file a suit for declaration and/or
possession with injunction as a consequential relief, were laid
down.14.1 It was held that where a plaintiff is in lawful or peaceful
possession of a property and such possession is interfered or
threatened by the defendant, a suit for an injunction simpliciter will
lie. A person has a right to protect his possession against any
person who does not prove a better title by seeking a prohibitory
injunction. But a person in wrongful possession is not entitled to
an injunction against the rightful owner.14.2 But it was further held in such judgment that where the
plaintiff is in possession, but his title to the property is in dispute,RCA No. 21/2016 Page No..5 of 11DDA Vs. Naresh Kumari & Anr.or under a cloud, or where the defendant asserts title thereto and
there is also a threat of dispossession from defendant, as in
present case, the plaintiff will have to sue for declaration of title
and the consequential relief of injunction.15. Appellant/DDA in present case is seriously challenging the title of
the plaintiff and instead claiming that it is the DDA, who is the
owner of the land where suit property is situated, on the basis of
Land Acquisition Proceedings proved by its witness DW-1. Under
these circumstances on the basis of evidence on record, including
the acquisition proceeding, it is held that the title of plaintiff is
under a cloud.As such, necessarily the plaintiff was required to file a suit for
declaration and injunction.16. It was further held by Hon'ble Supreme Court that a prayer for
declaration will be necessary only if the denial of title by the
defendant or challenge to plaintiff's title raises a cloud on the title
of plaintiff to the property. A cloud is said to raise over a person's
title, when some apparent defect in his title to a property, or when
some prima facie right of a third party over it, is made out or
shown. An action for declaration, is the remedy to remove the
cloud on the title to the property.On the other hand, where the plaintiff has clear title supported by
documents, which is not the case of the respondent as held
above, merely denies the plaintiff's title, it does not amount to
raising a cloud over the title of the plaintiff and it will not be
necessary for the plaintiff to sue for declaration and a suit for
injunction may be sufficient. But it is not the case at present.17.In fact in present suit, the appellant/defendant/ DDA, in theirWSRCA No. 21/2016 Page No..6 of 11DDA Vs. Naresh Kumari & Anr.already disclosed the details of the right or title claimed by it,
which raises a serious dispute or cloud over plaintiff's title,
therefore, then there was the need for the plaintiffs/ respondent to
amend the plaint and convert the suit into one for declaration.
Alternatively, they might have withdrawn the suit for bare
injunction, with permission of the court to file a comprehensive
suit for declaration and injunction. But original plaintiffs/
respondent failed to take any such actions.18. As such, it is held that when DDA is asserting its title/ ownership
over the suit property, therefore, it was required on the part of
plaintiffs/ respondent to seek relief of declaration also as there is
cloud over their alleged title/ownership over the suit property in
question. But despite that they failed to claim so. Thus, simplicitor
suit for injunction is not maintainable in such facts and
circumstances.19.Thus, the present appeal must succeed for such abovementioned
findings itself.20. But it may be noted that at this appellant stage, respondent has
taken an additional plea of protection underSection 24 (2)of the
Right To Fair Compensation And Transparency In Land
Acquisition, Rehabilitation and Resettlement Act, 2013.
20.1 In this regard, the respondent/original plaintiff has also relied
upon certain judgments passed by Hon'ble Supreme Court of
India and our Hon'ble Delhi High Court. But it is pertinent to note
that in the judgment titled as "Govt. of NCT & Ors. Vs. Jagjit
Singh & Ors.(AIR 2015 SC 2683), relied by respondent/plaintiffs
themselves, it was held that in any termination underSection 24
(2)of such Act, firstly the factum of award underSection 11mustRCA No. 21/2016 Page No..7 of 11DDA Vs. Naresh Kumari & Anr.be clearly established. Further, such award must have been
passed on or before 01.01.2009. Thereafter, it must also be
established that compensation is not paid. Then only, proceedings
shall be deemed to have lapsed.20.2 Further, another judgment titled as "Shyam Singh & Ors. Vs.
Land Acquisition Collector & Anr. (WP (C) 8438/2014) passed by
Hon'ble Delhi High Court on 17.08.2015 is also relied by the
respondent/plaintiffs in this regard. But, as also pointed out by Ld.
Counsel for appellant/DDA, which is clear from para 5 of such
judgment, a declaration by the Hon'ble Delhi High Court is
required as per such judgment which was so declared in that
particular case before Hon'ble High Court.21.In any case, it may be noted that it is a cardinal rule that first of all
there must be pleading and thereafter evidence relating to such
pleading about a particular fact. But in the present appeal, such
argument is taken by the appellant without any such pleading or
evidence during trial. In fact, there is no pleading at all in this
regard nor any amendment sought by the plaintiff side to add
such pleading, although the Trial Court judgment is given after
coming into force of such newLand Acquisition Act. Thus, in the
absence of pleading and thereafter evidence in this regard, such
plea of respondent can not be heard for the first time at this
appellant stage, that to when they have not challenged the
judgment in question at all.22. Further, it may also be noted, as argued by Ld. Counsel for
appellant/original defendant/DDA that in number of cases, it is
held by Hon'ble Supreme Court/High Court that challenge to Land
Acquisition proceedings under the old Act can not lie before civilRCA No. 21/2016 Page No..8 of 11DDA Vs. Naresh Kumari & Anr.Court and same has to be preferred before Hon'ble High Court.
22.1 It was held in similar facts in the case of "Bahadur Singh &
Ors. vs. Union of India & Ors.(122(2005) DLT 586 (DB)), which
was a regular first appeal, that the government is entitled to take
possession of the land covered under the Act. It was further held
that a detailed procedure is prescribed to challenge such
acquisition and award, therefore, civil suit is not maintainable
regarding the same.22.2 Further it was held in "Premji Ratansey Shah & Ors. Vs.
Union of India & Ors. (JT 1994(6) SC 585), by Hon'ble Supreme
Court :"In view of the finding given by the trial court that the
petitioners were in possession, unless they are lawfully
dispossessed, no interference with their possession was
called for and, therefore, they are entitled to the
injunction sought for. We find no substance in the
contention."It was further held :"It is equally settled law that injunction would not be
issued against the true owner. Therefore, the Courts
below have rightly rejected the relief of declaration and
injunction in favour of the petitioners who have interest
in the property. Even assuming that they had any
possession, their possession is wholly unlawful
possession of a trespasser and an injunction can not be
issued in favour of a trespasser or person who gained
unlawful possession as against the owner."22.3 Further it was held in "State of Bihar Vs. Dhirendra Kumar &
Ors.( AIR 1995 SC 1955), by Hon'ble Supreme Court :"The question is that whether a civil suit is maintainable
and whether ad interim injunction could be issued where
proceeding under theLand Acquisition Actwas takenRCA No. 21/2016 Page No..9 of 11DDA Vs. Naresh Kumari & Anr.pursuant to the notice issued underSection 9of the Act
and delivered to the beneficiary. The provisions of the
Act are designed to acquire the land by the State
exercising the power of eminent domain to serve the
public purpose. The State is enjoined to comply with
statutory requirements contained inSection 4andSection 6of the Act by proper publication of notification
and declaration within limitation and procedural steps of
publication in papers and the local publication
envisaged under the Act as amended by Act 68 of 1984.
In publication of the notifications and declaration underSection 6, the public purpose gets crystallised and
becomes conclusive. Thereafter, the State is entitled to
authorize the Land Acquisition Officer to proceed with
the acquisition of the land and to make the award.
Section 11-A, now prescribes limitation to make the
award within two years from the last of date of
publication envisaged underSection 6of the Act. In an
appropriate case, where the government needs
possession of the land urgently, it would exercise the
power underSection 17 (4)of the Act, and dispense
with the enquiry under Section 5-A. Thereon, the State
is entitled to issue notice to the parties underSection 9and on expiry of 15 days, the State is entitled to take
immediate possession even before the award could be
made. Otherwise, it would take possession after the
award underSection 12. Thus, it could be seen that the
Act is a complete Code in itself and is meant to serve
public purpose. We are, therefore, inclined to think, as
presently advised, that by necessary implication the
power of civil Court to take cognizance of the case
underSection 9of C.P.C stands excluded and a civil
Court has no jurisdiction to go into the question of the
validity or legality of the notification underSection 4, and
declaration underSection 6, except by the High Court in
a proceeding underArticle 226of the Constitution. So,
the civil suit itself was not maintainable."23. Thus, such land acquisition proceedings are neither
challenged nor can be challenged before the civil Court. Further,
there can not be an injunction against a true owner.RCA No. 21/2016 Page No..10 of 11DDA Vs. Naresh Kumari & Anr.24. For these reasons, this court is of the considered view that
there are grounds to interfere with the impugned final judgment
and decree. This appeal is found not to be devoid of merits. The
impugned judgment and decree dated 17.10.2016 passed by Ms.
Chhavi Kapoor, Ld. Civil Judge (West), Delhi, in original suit titled
as "Smt. Chanchal Devi Vs. DDA" bearing original civil suit No.
559/14, is hereby set aside and present appeal by
Appellant/DDA/original Defendant is allowed.25. In the given facts & circumstances of this case, parties are left
to bear their own costs qua this appeal. Decree sheet be
prepared accordingly. A certified copy of this judgment, along with
certified copy of decree of this court, be attached with the Ld. Trial
Court Record (in short TCR) to be returned back to the Ld. Trial
Court forthwith as per rules against due receipt. The appeal file be
consigned to Record Room as per rules, after necessary
compliance.Digitally signed byNAVEEN NAVEEN KUMAR
KUMAR KASHYAP
Date: 2018.09.13
Announced in the Open Court KASHYAP 14:51:12 +0530
th
on 12 September, 2018 (NAVEEN KUMAR KASHYAP)
SCJRC(N/W) : ROHINI : DELHI
12.09.2018RCA No. 21/2016 Page No..11 of 11DDA Vs. Naresh Kumari & Anr. |
b90485b7-d6ff-54e0-b8b2-2cf73d842dd1 | court_cases | Madras High CourtSubba Naicker vs Minor Subbaraman Naicker By Mother And ... on 16 November, 1948Equivalent citations: (1949)1MLJ185, AIR 1949 MADRAS 876JUDGMENT
Subba Rao, J.1. This is a Civil Miscellaneous Second Appeal against the order and judgment of the Subordinate Judge of Tuticorin dismissing the appeal against the order and judgment of the District Munsiff of Koilpatti allowing an application under Section 47, Civil Procedure Code.2. The plaintiff has been carrying on for a long time a grocery shop and a piece-goods shop in Masarapatti village. The first defendant was having dealings with him in both the shops. In 1936, there was a partition between the father, i.e., the first defendant and his son, the third defendant, in and by which all the properties of the family were allotted to the third defendant and the first defendant was given a sum of Rs. 10,000. Even after the partition the first defendant continued to have dealings with the plaintiff and the accounts filed in this case show that they were running accounts. In regard to the piece goods shop the accounts filed show that a sum of Rs. 200 was due to the plaintiff being the balance and under that item the first defendant had signed on a stamped endorsement to the effect " I shall pay the sum of Rs. 200 with interest at Rs. 0-8-0 per cent, per mensem to you or your older on demand." The account continued even thereafter. In regard to the grocery shop the first defendant continued to have dealings with the plaintiff even after the alleged partition and on 6th November, 1938, a sum of Rs. 300 was shown as the balance of the amount due to the plaintiff and the first defendant again signed on a stamped endorsement to the effect " I shall pay this sum of Rs. 300 with interest at Rs. 0-8-0 per cent, per mensem to you or to your order on demand." The account continued thereafter in the same manner. The plaintiff appellant instituted S.C.S. No. 272 of 1941 on the file of the Court of the Subordinate Judge of Tuticorin, against the father, the first defendant, the son, the third defendant and the wife, the second defendant. During the pendency of the suit the first defendant died and the second and third defendants were recorded as his legal representatives. The suit was filed on the basis of the accounts and for the amount due to the plaintiff. In paragraph 12 of the plaint it was stated that the cause of action for the suit arose on 16th November, 1938. Though the fact that the first defendant signed in the two accounts was mentioned in the plaint, the suit was not on the basis of the promissory note. Indeed nowhere in the plaint the fact of the execution of the promissory note was mentioned. After the written statements were filed there was a compromise decree and the decree reads as follows:Plaintiff will have a decree for this suit amount and coasts and future interest at six per cent, per annum against the properties and assets if any of the first defendant in the hands of defendants a and 3 and the question whether the partition arrangement of l2th August, 1936, referred to by defendants 2 and 3 in their written statement is true and valid and the family became divided and the question whether the said arrangement was given effect to and the family continued joint are left open.The plaintiff sought to execute the decree against the assets in the hands of the third defendant and he filed the present application under Section 47, Civil Procedure Code.3. Two points were raised by the appellant in the lower Court: (1) that the alleged partition between the first defendant and the third defendant was not a real transaction and (2) that he would be entitled to execute the decree against the family assets in the hands of the third defendant as the decree debt was a pre-partition debt. On the first point both the Courts concurrently found that the partition was a bona fide transaction and that by virtue of the terms of the release deed the father and the son became divided from each other. This is essentially a question of fact and there are concurrent findings on that question. No permissible grounds were advanced to disturb the said findings. I accept the finding of the lower Courts and hold that the arrangement was a real and bona fide transaction. As regards the second question the learned Counsel for the appellant argued that to the extent of a sum of Rs. 163-14-11 and a sum of Rs. 265-15-2, they are pre-partition debts and therefore he would be entitled to execute the decree to that extent against the joint family assets in the hands of the third defendant. The law on the subject is well settled. In Subramania Iyer v. Sabapathi Iyer (1927) 54, M.L.J. 726 : I.L.R. 51 Mad. 361 (F.B.), it was held by the Full Bench that a. simple creditor of a father in a joint Hindu family is entitled to recover the debt from the shares of the sons after a bona fide partition between the father and the sons. A passage from the judgment of Ananthakrishna Aiyar, J., may usefully be quoted,
And finally if the cause of action for the suit be not the original debt incurred before the partition but a promissory note executed by the father alone after partition though in renewal of a promissory note executed by him before partition, the sons are not liable to any extent if the suit be based on the renewed promissory note only.Property got by a son in partition is liable for a pre-partition debt of the father. If the pre-partition debt loses its identity and merges in a new cause of action that arose after the partition there would be no pre-partition debt at all and therefore the family property in the hands of the son could not be made liable for the debt.4. In this case there was a running account and at a particular point of time when the amounts due were ascertained the debtor's signature was taken. Whether it is treated as an acknowledgment or even as a collateral security it does not matter. The pre-existing pre-partition liability based on the running account did not lose its identity or merge in any new cause of action arising after the partition. The suit was based on the accounts though the fact that the debtor signed on the ascertainment of the amount due on a particular date was mentioned. I therefore, hold that to the extent of a sum of Rs. 163-14-11 and a sum of Rs. 265-15-2 under the different kathas together with interest on the said amounts at the rate mentioned in the decree the plaintiff would be entitled to recover the same from and out of the family property that fell to the share of the third defendant at the partition that was effected between the third defendant and the first defendant. The orders of the lower Court are accordingly modified.5. The appeal is allowed in part. Both the parties will bear their own costs here and in the Courts below. Leave refused. |
28a14353-6edb-5fe0-9ae7-07c4c6e637ab | court_cases | Punjab-Haryana High CourtLife Insurance Corporation Of India vs Chander Kanta And Ors. on 31 March, 1998Equivalent citations: 1999ACJ200Author:T.H.B. ChalapathiBench:T.H.B. ChalapathiJUDGMENT
T.H.B. Chalapathi, J.1. This appeal is filed against the judgment and decree of the learned Additional District Judge, Chandigarh, in Civil Appeal No. 161 of 1985 dated 13.3.1996.2. The only dispute in this appeal is in regard to the interest on the amount covered by the policy. Om Parkash, husband of the first respondent, took a policy in his name on his life for Rs. 50,000 in July, 1975 and he died on 4.5.1976. The plaintiffs then requested the defendant Corporation to pay them the amount but the Corporation did not pay the same. Therefore, the plaintiffs filed this suit for recovery of the amount. The trial court decreed the suit but no interest has been granted. The plaintiffs filed an appeal claiming interest at the rate of 18 per cent per annum. The appellate court awarded interest at the rate of 18 per cent per annum from the date of death of the insured. Aggrieved by the same the Life Insurance Corporation filed the present appeal. For appellant : Mr. B.R. Mahajan For respondents: Mr. S.C. Nagpal3. Learned counsel for the appellant contended that there was no prayer in the suit for payment of interest and, therefore, the Corporation is not liable to pay interest. He further contended that the award of interest at the rate of 18 per cent per annum is not warranted under law. The relevant portion of the plaint reads as follows:It is, therefore, respectfully prayed that a decree for Rs. 50,000...The plaintiffs may also be granted interest at the rate of fixed deposit from the date the amount found due till the date the amount is paid by the defendant.4. Thus, there is specific prayer for granting interest on the amount due under the policy. There cannot be any doubt that the money payable under life insurance policy is a debt on the death of insured and the court can order payment of interest on the sum insured under theInterest Actfrom the date of the death of the insured. Reference may be made to the decision of the Allahabad High Court inVaid Mahesh Chandra Shastri Rampuri v. Life Insurance Corporation of India1968 (38) Company Cases 767. I am, therefore, of the opinion that the appellant Corporation is liable to pay interest on the amount covered by the policy and which shall become payable on the death of the insured.5. The appellate court granted interest at the rate of 18 per cent per annum. No reasons have been given "by the appellate court to award interest at the rate of 18 per cent. On the other hand, in the plaint the plaintiffs claimed interest payable on fixed deposits. Therefore, I am of the opinion that the grant of interest at the rate of 18 per cent is not fair in this case. In the circumstances of the case, I feel that the rate of interest requires modification. I accordingly award interest at the rate of 12 per cent per annum from the date of the death of the deceased till the filing of the suit and during the pendency of the suit at the rate of 6 per cent per annum till the date of payment on the amount of Rs-. 50,000.6. Accordingly the appeal is partly allowed and the decree of the appellate court is modified allowing interest to the plaintiffs at the rate of 12 per cent per annum from the date of the death of the deceased till the filing of the suit and from the date of filing of the suit to the date of realisation at the rate of 6 per cent per annum on the principal amount of Rs, 50,000. |
0c2c7ee7-f23a-59a7-8d08-94a3ea3205af | court_cases | Kerala High CourtKerala State Co-Operative Consumers vs The Labour Court on 31 March, 2009Author:Harun-Ul-RashidBench:Harun-Ul-RashidIN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 22235 of 2005(V)
1. KERALA STATE CO-OPERATIVE CONSUMERS
... Petitioner
Vs
1. THE LABOUR COURT, KOLLAM.
... Respondent
2. SMT.P.SUSEELA,
3. GOVERNMENT OF KERALA,
For Petitioner :SRI.M.PATHROSE MATTHAI (SR.)
For Respondent :SRI.V.G.ARUN
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :31/03/2009
O R D E R
HARUN-UL-RASHID, J.
---------------------------------------
W.P.(C) No.22235 OF 2005
---------------------------------------
Dated this the 31st day of March, 2009
JUDGMENTThe petitioner is an apex society registered under theKerala Co-operative Societies Act. The second respondent and
one Smt.P.L.Ambika were employed as Sales Assistants at
their Triveni Department Store at Thiruvananthapuram.
According to the petitioner, the above named Sales Assistants
committed several acts of misconduct of misappropriation of
money, manipulation of accounts and the cash register and
that the said employees misappropriated the Federation's
money jointly for making false entries in the accounts,
cancelling actual bills, cash received and reducing the total
amount of actual receipts of the day at the end of the day or on
the next day.2. It is submitted by the counsel for the petitioner that
the Sales Assistant Smt.P.L.Ambika admitted that she along
with the second respondent are responsible for
misappropriation of money, manipulation of accounts and the
cash register and Smt.Ambika offered to pay her share ofW.P.(C) No.22235 of 20052misappropriated amount, tendered apology and assured that
no such misconduct would be committed in future and further
requested not to take any disciplinary action against her.
Ext.P1 is the letter.3. The disciplinary proceedings were initiated against
the aforesaid Sales Assistants. Ext.P2 is the true copy of the
charge sheet. The second respondent denied the allegations
levelled against her. The explanation submitted by the second
respondent was found to be unsatisfactory. Therefore, a
domestic enquiry was ordered and enquiry officer was
appointed. The enquiry officer conducted the enquiry. During
the course of enquiry, 6 witnesses were examined and 62
documents were marked on the side of the management. The
second respondent examined herself and also the other Sales
Assistant as witness and marked two documents. The enquiry
officer found that the charges against the second respondent
were not proved while the charges against Smt.P.L.Ambika
were proved.4. The disciplinary authority considered the report and
findings of the enquiry officer. The disciplinary authorityW.P.(C) No.22235 of 20053disagreed with the findings and according to them, the
findings are contrary to the evidence adduced during enquiry.
The disciplinary authority proceeded against the delinquents
and issued show cause notice. The disciplinary authority
entered its own finding and came to the conclusion that the
second respondent committed misconduct of misappropriation
and therefore, decided to impose a punishment on her. It is
relevant to note that the disciplinary authority before entering
into the finding about the misconduct committed by the second
respondent, no notice was issued to her calling upon her to
explain as to why no punishment shall be imposed on her.
Instead of doing so, the disciplinary authority entered the
finding and concluded that the second respondent has
committed misconduct of misappropriation and after arriving
at such findings, the disciplinary authority issued Ext.P3 notice
pointing out that the enquiry officers' findings are baseless
and erroneous and therefore, they had to disagree with those
findings and that the authority on examination of the
documents and other evidence is of the view that the second
respondent has committed misconduct of misappropriation.W.P.(C) No.22235 of 20054Therefore, in Ext.P3, the second respondent is called upon to
explain as to show cause why her service shall not be
terminated with effect from 02.10.1989. The second
respondent furnished explanation to the show cause notice.
She was called for hearing. After giving her an opportunity of
being heard, the Disciplinary Action Committee found that the
charges of misconduct numbers 1 to 3 and 6 to 8 were proved
and that the second respondent is guilty of the said acts of
misconduct. Instead of ordering punishment, the proceedings
were submitted to the Board of Directors, who are in fact the
appellate authority under Rule 198(4) of the Co-operative
Societies Rules. The Board of Directors passed orders
dismissing her from service and accordingly, she was
dismissed from service.5. In the industrial dispute raised, the labour court
considered the question. The labour court by Ext.P4 order held
that the first respondent acted in violation of the provision of
Section 11A, placing reliance on the decisions of the Apex
Court held that the entire proceedings and the award passed
by the first respondent is without jurisdiction, illegal andW.P.(C) No.22235 of 20055invalid. The labour court relied on the decisions reported inState Bank of India and others Vs. K.P.Narayanan Kutty(2003) 2 SCC 449 and Rajendra Kurup Vs. Union of India(1999 (3) KLT 480) and held that when the disciplinary
authority differs with the view of the enquiry officer and
proposes to come to a different conclusion, there is no reason
as to why an opportunity of hearing should not be granted. It
will be most unfair and iniquitous that where the charged
officer succeeds before the enquiry officer, he is deprived of
representing to the disciplinary authority before that authority
differs with the enquiry officer's report and, while recording a
finding of guilt, imposes punishment on the officer. The labour
court based onthe said decisionrightly held that there is need
for giving opportunity to the worker before the disciplinary
authority alters, varies or reverses the findings of the enquiry
officer. The labour court held that in the present proceedings,
the enquiry officer exonerated the second respondent from all
the charges but the disciplinary committee take a contrary
view proposing a punishment of dismissal from service without
giving an opportunity to the delinquent officer to explain herW.P.(C) No.22235 of 20056position. The counsel for the management also admitted that
before the decision so taken by the disciplinary committee
finding that the delinquent officer had committed misconduct
an opportunity was not given to the worker to represent, or
she was heard before reversing the findings of the enquiry
officer. The labour court further held that since the order of
punishment was passed by the Board of Directors instead of
disciplinary committee, the right of appeal to the Board of
Directors as enjoyed under Rule 198(4) of the Co-operative
Societies Rules is also denied to her. Based on the said
decisions and other decisions, the labour court straight away
held that the dismissal of the worker is illegal and therefore,
issued directions to re-instate her forthwith with 75% of the
back wages.6. Learned counsel for the petitioner seriously
challenged the findings of the labour court. At the same time,
the learned counsel admitted that no opportunity was given to
the worker to put her objection against the findings recorded
by the disciplinary committee. The learned counsel submitted
that it is true that the findings are recorded by the disciplinaryW.P.(C) No.22235 of 20057authority on appreciation of evidence that the enquiry officers'
findings are without basis and therefore, took a contrary view.
It is not disputed before me that the disciplinary committee
has the authority either to accept the enquiry report or differ
with the view of the enquiry officer and proposes to come to a
different conclusion. But such decision shall be taken only
after giving an opportunity of hearing to the delinquent
worker. If not done, it will be most unfair and iniquitous act
done to the worker who had succeeded before the enquiry
officer. The labour court followed the principleslaid down bythe Supreme Court.But the labour court failed to take note of
the fact that inRajendra Kurup's case (supra), the apex court
remanded the matter to the disciplinary authority with a
further direction to commence the proceedings from the stage
of granting opportunity to the charged officer of being heard
in the matter regarding the different view expressed by the
disciplinary authority. If the proceedings was commenced from
the stage of granting opportunity to the charged officer, the
charged officer will get a reasonable opportunity to present
her case before the disciplinary authority and she can alsoW.P.(C) No.22235 of 20058avail the appellate remedy available to her before the Board of
Directors.7. In the circumstances, Ext.P4 award is set aside. The
matter is remitted to the disciplinary authority for passing
appropriate orders as indicated above. The disciplinary
authority shall pass orders within a period of four months from
today.The writ petition is disposed of as above.HARUN-UL-RASHID
JUDGE
pac |
9013a672-2dc8-5d8f-92d8-bef6ad00b0f1 | court_cases | Calcutta High Court (Appellete Side)Bablu Naskar vs Oriental Bank Of Commerce & Ors on 2 February, 2015Author:Sanjib BanerjeeBench:Sanjib Banerjee1
23 02.2.2015
gd W.P. 29942 (W) of 2014
Bablu Naskar
Vs.
Oriental Bank of Commerce & Ors.
Mr. Ashish Sanyal
Mr. Kamal Krishna Chakrabarti
Mr. Sibojyoti Chakrabarti
..for the Petitioner
Mr. M. Gupta
Mr. R.C. Prusti
..for the Bank
Mr. J. N. Manna
Mr. Sanjib Das
Ms. Priyanka Mishra
..for the Respondent Nos.6 and 7.The petitioner complains of the failure of the
bank to absorb the petitioner against a regular post
despite the petitioner having worked as a casual worker
for nearly fourteen years.The employer bank says that the petitioner did
not even participate in the recruitment process.Affidavit-in-opposition be field within three weeks
from date; reply thereto, if any, may be field within a
week thereafter. These directions are peremptory.The petition will appear for hearing in the
monthly list of March, 2015.(Sanjib Banerjee,
J.)2 |
cf2167f0-58b2-507e-a3c0-1c074649c375 | court_cases | Punjab-Haryana High CourtR.C. Sood And Co. (P) Ltd. vs R. Kant And Co. And Ors. on 14 March, 2002Equivalent citations: AIR2002P&H304, AIR 2002 PUNJAB AND HARYANA 304, (2002) 1 CURLJ(CCR) 537, (2002) 49 ARBILR 320, (2002) 3 PUN LR 827, (2002) 3 ICC 134, (2003) 1 ICC 706, (2002) 2 RECCIVR 580Author:S.S. NijjarBench:S.S. NijjarJUDGMENT
S.S. Nijjar, J.1. I have heard the learned counsel for the appellants at length and perused the record of the case.2. It is submitted by Mr. Punchhi that, admittedly, the controversy about the ownership of 25% of the land is still pending final adjudication in R.S.A. No.1936 of 1987. The learned counsel is aggrieved by the directions issued by the learned Lower Appellate Court directing that the Local Commissioner who is to be appointed by the learned trial Court, shall suggest the mode of partition. Learned counsel further makes a grievance of the direction given by the learned Lower Appellate Court that the possession of the parties shall not be disturbed unless, it is essential for effecting the partition of the land or unless one is found to be in excess of his share. According to the learned counsel, this direction will operate in favour of defendants Nos.1 and 2, who are, admittedly, in possession of 430 acres of land. It is also not disputed that the plaintiffs have purchased 230 acres of land. However, they are not in possession of any part of the land which has been purchased. According to the learned counsel the partition has to be done by metes and bonds to ensure equitable distribution among co-owners.3. I am of the considered opinion that the aforesaid directions given by the learned Lower Appellate Court are neither unreasonable nor perverse. It has to be noticed that it was the appellant itself who filed a suit for partition. In fact, it is the suit of the appellant which has been decreed by the learned Lower Appellate Court. The learned trial Court had, in fact, dismissed the suit holding that the suit land belonged entirely to the Municipal Corporation, Faridabad. This finding was not acceptable to the appellants. They have now succeeded in the appeal and partition has been ordered. Therefore, in my opinion the appellants cannot be permitted to make any grievance of the directions which have been given by the learned Lower Appellant Court-. I find that the directions given are perfectly within the jurisdiction of the learned Lower Appellate Court.4. No substantial question of law has been raised by the learned counsel for the appellants.5. At this stage, Mr. Patwalia states that since caveat has been filed, his submission
to the effect that the ownership of 230 acres of land purchased by the appellants is disputed by them, may be noticed. It is made clear that while disposing of the regular second appeal no opinion on the merits of the submissions made by the counsel has been
expressed with regard to the ownership of the land by the various parties. Otherwise,
since no interim relief has been granted by this Court, it is not necessary to notice any
of the submissions made by Mr. Patwalia. |
c34d44d9-2f40-5b08-9a11-9495d9641f23 | court_cases | Calcutta High CourtFor The vs Commissioner Of on 26 September, 2008Author:Biswanath SomadderBench:Surinder Singh Nijjar,Biswanath SomadderIN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
P R E S E N T: -
The Hon'ble Chief Justice Surinder Singh Nijjar
And
The Hon'ble Mr. Justice Pinaki Chandra Ghose
And
The Hon'ble Mr. Justice Biswanath Somadder
A.P.O No. 587 of 1994
W.P No. 1690 of 1994
P. G. & SAWOO P. LTD. & ANOTHER
v e r s u s
THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 5(4),
CALCUTTA AND OTHERS
For the Appellant : Dr. D. Pal, Sr. Adv,
Mr. A. Majumder, Adv.,
Mr. Subrata Das, Adv.,
Mrs. N. Pal Banerjea, Adv.
For the Respondent : Mr. D. K. Shome, Sr. Adv,Mr. P. K. Bhowmick, Adv.Heard on : 13-02-2008.Judgement on : 26th September, 2008.PINAKI CHANDRA GHOSE, J. : A reference has been made by the Hon'ble
Division Bench on the question that whether there is a direct conflict of decisions delivered
by the Hon'ble Division Bench in the decision ofHope India Ltd. Vs. Commissioner of
Income Tax(239 ITR 740) and in the decision ofHamilton & Co. Pvt. Ltd. Vs.
Commissioner of Income Tax(194 ITR 391). The reference has been made to resolve the
conflict between the said two decisions of the Hon'ble Division Bench. The matter has
been referred before the Larger Bench to resolve the conflict in respect of the said two
decisions.The question relates to whether additional or extra rent attributable to preceding
years of account which could not be taxed under Section 22 of the Act should be taxed
under the head "income from other sources". The said question was decided by the
Hon'ble Division Bench in the case ofHamilton & Co. Pvt. Ltd.(Supra) when Their
Lordships observed :"The question is whether the arrears of rent relating to another previous year
are taxable as income from house property of the later previous year in which they
were received. If the arrears of rent of past years are not part of the annual rent of
the year of account in which such arrears are received, then the only rational
interference should be that the annual rent or annual rents of the past year or years
to which they pertain can be brought to charges only in the assessment years
relevant to such past years of account. The receipt of the arrears of rent cannot, by
any stretch of imagination, can be said to have shed their character as rent from
property and to have ceased to be liable to tax as income from house property.
The simple case is that the rent of a past year increased retrospectively shall be the
annual rent of the year in which it is received consequent upon subsequent
increase."Therefore, the Hon'ble Division Bench inthe said decisionofHamilton & Co. Pvt.
Ltd.(Supra) held that the receipt of arrears of rent cannot, by any stretch of imagination,
can be said to have shed their character as rent from property and to have ceased to be
liable to tax as income from house property. The simple case is that the rent of a past
year increased retrospectively shall be the annual rent of the year in which it is received
consequent upon subsequent increase.But in the case ofHope India Ltd.(Supra) the Hon'ble Division Bench considered
the judgment and held that the questions which have been raised inHope India Ltd.(Supra) had not been raised in the case ofHamilton & Co. Pvt. Ltd.(Supra).In the decision of Hope India Ltd. the Hon'ble Division Bench relied on a decision inE. D. Sassoon Ltd. & Ors. Vs. Commissioner of Income-Tax, Bombay City, reported in
[1954] 26 ITR 27 where the Apex Court considered the meaning of the words "accrue",
"arises" and "is received", in the context of the definition of income. Inthe said decisionthe Hon'ble Supreme Court held at page 50 :"Now what is income ? The term is nowhere defined in the Act. .... In the
absence of a statutory definition we must take its ordinary dictionary meaning--
'that which comes in as the periodical produce of one's work, business, lands or
investments (considered in reference to its amount and commonly expressed in
terms of money); annual or periodical receipts accruing to a person or corporation'
(Oxford Dictionary). The work clearly implies the ideal of receipt, actual or
constructive. The policy of the Act is to make the amount taxable when it is paid or
received either actually or constructively. 'Accrue', 'arises' and ' is received' are
three distinct terms. So far as receiving of income is concerned there can be no
difficulty; it conveys a clear and definite meaning, and I can think of no expression
which makes its meaning plainer than the word 'receiving' itself. The words
'accrue' and 'arise' also are not defined in the Act. The ordinary dictionary
meanings of these words have got to be taken as the meanings attaching to them.
'Accruing' is synonymous with 'arising' in the sense of springing as a natural growth
or result. The three expressions 'accrues', 'arises' and 'is received' having been
used in the section, strictly speaking 'accrues' should not be taken as synonymous
with 'arises' but in the distinct sense of growing up by way of addition or increase or
as an accession or advantage; while the word 'arises' means comes into existence
or notice or presents itself. The former connotes the idea of a growth or
accumulation and the latter of the growth or accumulation with a tangible shape so
as to be receivable. It is difficult to say that this distinction has been throughout
maintained in the Act and perhaps the two words seem to denote the same idea or
ideas very similar, and the difference only lies in this that one is more appropriate
than the other when applied to particular cases. It is clear, however, as pointed out
by Fry, L. J., in Colquhoun v. Brooks [1888] 21 QBD 52, 59 [this part of the decision
not having been affected by the reversal of the decision by the House of Lords
[1889] 14 AC 493 that both the words are used in contradistinction to the word
'receive' and indicate a right to receive. They represent a state anterior to the point
of time when the income becomes receivable and connote a character of the
income which is more or less inchoate.One other matter need be referred to in connection with the section. What is
sought to be taxed must be income and it cannot be taxed unless it has arrived at a
stage when it can be called 'income'.The observations of Lord Justice Fry quoted above by Mukerji, J., were
made in Colquhoun v. Brooks [1888] 21 QBD 52 while construing the provisions of
16 and 17 Victoria Chapter 34, Section 2, Schedule 'D'. The words to be construed
there were 'profits or gains, arising or accruing' and it was observed by Lord Justice
Fry at page 59:'In the first place, I would observe that the tax is in respect of "profits or gains
arising or accruing". I cannot read those words as meaning "received by". If the
enactment were limited to profits and gains "received by" the person to be charged,
that limitation would apply as much to all Her Majesty's subjects as to foreigners
residing in this country. The result would be that no income-tax would be payable
upon profits which accrued but which were not actually received, although profits
might have been earned in the kingdom and might have accrued in the kingdom. I
think, therefore, that the words "arising or accruing" are general words descriptive
of a right to receive profits.'
To the same effect are the observations of Satyanarayana Rao, J., inCIT v.
Anamallais Timber Trust Ltd.[1950] 18 ITR 333 (Mad), and Mukherjea, J., inCIT v.
Ahmedbhai Umarbhai and Co., Bombay[1950] 18 ITR 472 (SC), where this
passage from the judgment of Mukerji, J., inRogers Pyatt Shellac and Co. v.
Secretary of Statefor India [1925] 1 ITC 365 (Cal) is approved and adopted. It is
clear therefore that income may accrue to an assessee without the actual receipt of
the same. If the assessee acquires a right to receive the income, the income can
be said to have accrued to him though it may be received later on its being
ascertained. The basic conception is that he must have acquired a right to receive
the income. There must be a debt owed to him by somebody. There must be as is
otherwise expressed debitum in praesenti, solvendum in futuro; See W. S. Try Ltd.v. Johnson (Inspector of Taxes) [1946] 1 All ER 532 (CA) and Webb v. Stenton,
Garnishees, 11 QBD 518. Unless and until there is created in favour of the
assessee a debt due by somebody it cannot be said that he had acquired a right to
receive the income or that income has accrued to him.The word 'earned' even though it does not appear in section 4 of the Act has
been very often used in the course of the judgments by learned judges both the
High Courts as well as the Supreme Court. (Vide CIT v. Ahmedbhai Umarbhai and
Co., Bombay[1950] 18ITR 472 (SC) and CIT v. K.R.M.T.T. Thiagaraja Chetty and
Co.[1953] 24 ITR 525 (SC)).It has also been used by the Judicial Committee of
the Privy Council in Commissioners of Taxation v. Kirk [1900] AC 588. The
concept, however, cannot be divorced from that of income accruing to the
assessee. If income has accrued to the assessee it is certainly earned by him in
the sense that he has contributed to its production or the parenthood of the income
can be traced to him. But in order that the income can be said to have accrued to
or earned by the assessee it is not only necessary that the assessee must have
contributed to its accruing or arising by rendering services or otherwise but he must
have created a debt in his favour. A debt must have come into existence and he
must have acquired a right to receive the payment. Unless and until his
contribution or parenthood is effective in bringing into existence a debt or a right to
receive the payment or in other words a debitum in praesenti, solvendum in futuro it
cannot be said that any income has accrued to him. The mere expression 'earned'
in the sense of rendering the services, etc., by itself is of no avail."InHamilton's case it appears thatthe said decisionof the Apex Court was not
considered.Following the decision inSassoon's case (Supra), inCIT Vs. A. Gajapathy
Naidu[1964] 53 ITR 114 (SC), the Hon'ble Supreme Court held that there is no relevancy
of the question of reopening of accounts in considering the question when an assessee
acquired a right to receive an amount.InCIT Vs. Hindustan Housing and Land
Development Trust Ltd., reported in [1986] 161 ITR 524, the Apex Court made a clear
distinction between the cases where the right to receive payment is in dispute and it is not
a question of quantifying the amount to be received, and cases where the right to receive
payment is admitted and the quantification only of the amount payable is left to be
determined in accordance with settled or accepted principles.In the decision ofHope India Ltd.(Supra) the Hon'ble Division Bench after
consideringthe said decisionheld as follows :-"In the instant case, as indicated hereinbefore, the Government Departments
agreed to enhance the rent with retrospective effect from 1982, and, thus, the
parties were not ad idem in their mind as regards the actual quantum of rent
payable to the assessee by its tenants and, thus, the actual amount was not
ascertainable. Fair rent, keeping in view the provisions of theWest Bengal
Premises Tenancy Act, has to be determined and till such fair rent is determined,
actual rent has to be paid by the tenants. Although the said provisions have no
application in case the Government is the tenant the rent has to be paid on the
basis of the agreement entered into by the parties. A claim made by a landlord for
enhancement of rent cannot, thus, be said to be an amount receivable within the
meaning ofsection 23(1)of the Act. A claim or a demand by itself does not come
within the purview of the word "income received or receivable" and keeping in view
the provision ofsection 5of the Income-tax Act there cannot be any doubt
whatsoever such income either received or deemed to be received, accrued or
arose or is deemed to accrue or arise to him or accrues or arises in India or
accrues or arises outside India during the previous year.An agreement entered into between the parties in terms whereof the
quantum of rent is determined with retrospective effect, in our considered view,
does not come within the purview of any of the provisions ofsection 5aforementioned."It is true that a system of accountancy followed by the assessee may be a relevant
factor, but even in a mercantile system of accounting income would be assessed in
respect of such amount which the assessee had a right to receive and/or became
accrued. A mere claim or a mere demand cannot be treated as an income within the
meaning ofSection 5of the Income-Tax Act. It is also a fact that an assessment of
income cannot be reopened after lapse of many years. It also cannot be taken into
account that the amount payable by a tenant in favour of the landlord which has been
agreed upon or which has been determined as fair rent by the rent controller. In a case of
assessment of fair rent the same may be assessed with retrospective effect, but it cannot
be treated to be an income for the assessment year for which the rent was received and
assessed by the authority. Therefore, the amount so received, subsequently, held that it
cannot be treated as income within the meaning ofSection 5of the Income-Tax Act for the
said assessment year.The facts of this case that the appellant company, i.e., P. G. & W. Sawoo Pvt. Ltd.
filed its return of income for the Assessment Year 1989-90 showing the amount of rent
being the income from house property, which was received and/or receivable in terms of
the agreement with the Government of India. The said agreement was in force during the
relevant period. The return was filed on 22nd November, 1989. Subsequent thereto, the
Government of India on 29th March, 1994 decided to enhance the rent in respect of the
property situated at 4, Brabourne Road, Calcutta from Rs.4/- per Sq. ft. per month to Rs.
8.11 paise per Sq. ft. per month with effect from 1st September, 1987. In view of such
decision taken by the Government for the Assessment Year 1989-90 to enhance the rent
of the premises in question with retrospective effect from 1st September, 1987, a purported
notice underSection 147of the Income Tax Act, 1947 (hereinafter referred to as "the said
Act") was issued on 18th May, 1994 i.e. after the expiry of four years from the end of the
relevant Assessment Year (1989-90). The appellant/assessee had challenged the
jurisdiction of the Assessing Officer to issue the said notice underSection 147of the said
Act, inter alia, on the ground that the enhancement of rent having been made with
retrospective effect from 1st September, 1987. The enhanced rent for the Assessment
Year 1989-90 was neither received nor receivable in terms of the agreement prevalent at
the time when the return was filed on 22nd November, 1989 for the said Assessment Year
1989-90. The said enhanced rent cannot be taken as the income of the assessee for the
said relevant assessment year and, therefore, there cannot be any question of
escapement of income of the assessee for the said year and, hence, the Assessing
Authority cannot have any reason to believe that any income of the assessee for
representing the enhanced rent for the Assessment Year 1989-90 has escaped
assessment.Dr. Debi Pal, Learned Senior Advocate appearing on behalf of the appellant,
submitted that in the case of Hope India Ltd. reported in 238 ITR 740, the Division Bench
of the Calcutta High Court considered the question as to whether arrears of rent as a
result of the enhancement of rent subsequent to an agreement with retrospective effect,
the enhanced rent can be treated to be the income liable to tax for the past years in
respect of which the enhancement has been allowed with retrospective effect. In the said
case the question before the Division Bench was as follows:-"Whether, on the facts and in the circumstances of the case, and an
interpretation of the documents in respect of rent at 2/3rds of the house property at
18, Rabindra Sarani, Calcutta, for the assessment year 1984-85 andSection 23(1)of the Income Tax Act, 1961, the Tribunal was justified in law in directing the
Assessing Officer to recomputed the income from the aforesaid house property on
the basis of enhanced rent sanctioned and agreed after the close of the previous
year to be paid by the various tenants and to determine the income under the head
'income from house property'?"In that case the Division Bench of the Calcutta High Court held that a claim made by
a landlord for enhancement of rent cannot be said to be an amount receivable within the
meaning ofSection 23(1)of the Act. A mere claim or a mere demand without anything
else does not come within the purview of the word 'income received or receivable'. An
agreement entered into between the parties in terms whereof the quantum of rent is
determined with retrospective effect, does not come within the purview of any of the
provisions ofSection 5of the Act [see pages 751-752]. In that case it is relevant to note
that the assessee having made a claim for the enhancement of the rent but ultimately the
decision was taken much later to allow the enhancement of rent with effect from the earlier
year i.e. 1982. Therefore, the question was whether the decision to increase the rent with
retrospective effect, can be assessable to tax underSection 23 (1)of the Act being the
'income from house property'. In the facts ofthe above casethe Division Bench observed
at page 751, last para that the Government Departments agreed to enhance the rent with
retrospective effect from 1982 and the parties were not ad idem in their mind as regards
the actual quantum of rent payable to the assessee by its tenants and thus the actual
amount was not ascertainable. A claim made by a landlord for enhancement of rent
cannot be said to be an amount receivable within the meaning ofSection 23(1)of the Act.
A claim or a demand by itself does not come within the purview of the word 'income
received or receivable' and keeping in view the provision ofSection 5of the Act there
cannot be any doubt whatsoever that such claim cannot either be income received or
deemed to be received, accrued or arose or is deemed to accrue or arise to him during
the previous year. The Division Bench thus observed at page 752 of the report that an
agreement entered into between the parties in terms whereof the quantum of rent is
determined with retrospective effect does not come within the purview of any of the
provisions ofSection 5of the Act.Dr. Pal further contended that the Division Bench considered the earlier decision of
the Division Bench of the Calcutta High Court in the case ofHamilton's case reported in
194 ITR 391.The High Court referred to the question inHamilton's case at page 747.The question in theHamilton's case was as follows :-"Whether, on the facts and in the circumstances of the case, the Tribunal
was right in holding that the additional or extra rent attributable to preceding years
of account which could not be taxed underSection 22of the Act should, instead, be
taxed under the head 'income from other sources'."The Division Bench inHope India's case points out that the question which has
been raised inHope India's case was not at all the question in the case of Hamilton's
case.It will appear that inHamilton's case it was assumed that the additional or extra rent
which could not be taxed underSection 22of the Act should, instead, be taxed under the
head 'income from other sources'. In other words, it was assumed that the additional or
extra rent consequent upon a subsequent enhancement of the rent could not be assessed
under the head 'income from house property' but whether such additional rent was taxed
as income from other sources.But inHope India's case the question directly was whether
the enhanced rent consequent upon the subsequent agreement with retrospective effect is
liable to be assessed as income from house property.Therefore, the question which was
directed in issue inHope India's case was not at all the question which was before the
Division Bench inHamilton's case.InHope India's case the Division Bench considered
the scope of the expression 'income received or receivable' on the basis of the principle of
accrual and referred to the well known decision of the Supreme Court in the case of E.D.
Sassoon & C. Ltd. -Vs.- CIT, reported in 26 ITR 27 and quoted extensively from the said
judgement.The Division Bench inHope India's case specifically pointed out at page 750
that the decision of the Supreme Court inSassoon's case had not been considered in the
earlier Division Bench inHamilton's case. The Division Bench also pointed out that
probably in the facts of the said case it was not required to be considered.In Hamilton's
case as it was evident from the very question itself that the enhanced rent could not be
assessed under the head 'income from house property', therefore, the scope of the
expression 'received or receivable' appearing inSection 23was not required to be
considered by the earlier Division Bench inHamilton's case.But the said question directly
was in issue before the Division Bench inHope India's case where the Division Bench
pointed out the scope of the expression 'income received or receivable' on the basis of the
well known decision of the Supreme Court in the case of E.D Sassoon & Co. Ltd. -Vs. -
CIT, reported in 26 ITR 27 following the judgment delivered by the Calcutta High Court in
the case of Rogers Pyatt Shellac & Co. -Vs.- Secretary of State, reported in 1 ITC 363.It
is submitted that theSassoon's case is a landmark decision on the question as to when
income can be said to be accrue or arise which is equated with the concept of income
receivable. In 26 ITR 27 at page 50 the Supreme Court quotes with approval the decision
of the Special Bench of the Calcutta High Court in Rogers Pyatt Shellac & Co. -Vs.-
Secretary of State, reported in 1 ITC 363 = AIR 1925 Cal. 34 observed that the word
'accrue' and 'arise' also are not defined in the Act. The Supreme Court thereafter held
that two words 'accrue' and 'arise' are used in contradiction to the word 'receive' and
indicate a right to receive. They represent a state anterior to the point of time when the
income becomes receivable and connote a character of the income which is more or less
inchoate. The Supreme Court, therefore, at page 51 of the judgment held that the income
may accrue or arise to an assessee, if the assessee acquires a right to receive the income
during the previous year, the income can be said to have accrued to him though it may be
received later on its being ascertained. The basic concept is that he must have acquired a
right to receive the income.Keeping in view the aforesaid principle the Division Bench inHope India's case pointed out that during the accounting year 1982-83 the assessee did
not acquire any right to receive the enhanced rent which was agreed upon subsequently
with retrospective effect. The same principle will equally apply in the present case where
the enhanced rent decided by the Government of India in the year 1994 could not be said
to be receivable by the assessee in the assessment year 1989-90 and, therefore, the said
enhanced rent could not be taken as the income of the assessee for the assessment year
1989-90 and, hence, there cannot be any escapement of income regarding the enhanced
rent for the assessment year 1989-90 and the Assessing Officer, therefore, had no
jurisdiction to reopen the proceeding underSection 147of the Act.Dr. Pal further pointed out that it is relevant to note that the principle decided inHope India's case has been accepted by the Parliament when Parliament introducedSection 25Bby theFinance Actof 2000 with effect from 1st April, 2001 relevant to the
assessment year 2000-01. As a result of the introduction ofSection 25Bwith effect from
1st April, 2001 relevant for the assessment year 2001-02, where the assessee is the owner
of any property has received any amount, by way of arrears of rent from such property,
not charged to income-tax for any previous year, the amount so received, after deducting
[a sum equal to thirty per cent of such amount], shall be deemed to be the income
chargeable under the head "income from house property" and accordingly charged to
income-tax as the income of that previous year in which such rent is received.
Memorandum explaining the provisions in the Finance Bill of 2000 has been set out in 122
ITR (ST.) 144. The Memorandum sets out the object for which the said newSection 25Bwas introduced which are as follows :-"The scheme of taxing the income from house property under the Income-Tax Act involves the concept of 'annual value'. Annual value has been deemed to
be the sum for which the property might reasonably be expected to let from year to
year or annual rent received or receivable in excess of annual value. Therefore,
arrears of rent received subsequently do not fall within the ambit of annual value or
annual rent. There is difficulty in taking such income as income from other
sources as they retain the character of income from house property. It is also
difficult to include arrears of rent in the relevant years as they were not receivable
during those years.Therefore, it is proposed to insert a newSection 25Bin theIncome-Tax
Actto provide that if any arrears or rent, other than what has already been taxed
underSection 23, are received in a subsequent year, the same will be taxed in the
year of receipt whether the property is owned by the assessee in the year of receipt
or not. A deduction of sum equal to one-fourth of such amount of rent shall be
allowed towards repairs and collection of rent.The proposed amendment will take effect from 1st April, 2001 and will
accordingly apply in relation to assessment year 2001-02 and subsequent years."Dr. Pal further contended that the Memorandum also pointed out that before the
introduction ofSection 25Bthe arrears of rental income from house property could not be
taxed under the head 'income from house property' nor could it be taxed under the head
'income from other sources'. To obviate such difficulty the saidSection 25Bwas
introduced. However, the Memorandum also pointed out that the proposed amendment
will be operative from 1st April, 2001 and will accordingly apply for the assessment year
2001-02 onwards.He further contended that the prospective operation ofSection 25Bis as follows:"Section 25B, therefore, could not be made applicable to rope in arrears of
rent for the assessment year 1989-90 in the present case. It is also made clear that
Parliament while introducingSection 25Bhas specifically laid down that the said
section will be applicable with effect from 1st April, 2001. It is also submitted that
even in the course of hearing the Learned Counsel for the Revenue has made it
clear that the said newSection 25Bwould be applicable prospectively and would not
apply in the assessment year 1989-90. The said statement of law as pointed out by
the Learned Counsel for the Revenue is in consonance with the lawlaid down bythe Supreme Court in 215 ITR 165 (SC) at page 173 and 289 ITR 83 (SC) at page107."He further contended thatHope India's case was decided on 7th April, 1999 and the
Revenue had not preferred any appeal againstthe said judgmentbefore the Supreme
Court.In other words, the Revenue has accepted the decision of the Division Bench inHope India's case and has introduced a newSection 25Baccordingly. It is now well
settled by a catena of decisions of the Supreme Court that if the revenue has not
challenged the correctness of the lawlaid down bythe High Court and has accepted in the
case of one assessee then it is not open to the revenue to challenge its correctness in the
case of other assessee without any just cause [see 266 ITR 99 (SC) at page 104]. The
said decision refers to earlier decisions of the Supreme Court reported in 249 ITR 219
(SC), 254 ITR 606 (SC) and 257 ITR 59 (SC).He further submitted that the notice issued under 147 of the Act is clearly without
jurisdiction.Section 147of the Act can apply only in a case when the Assessing Authority
has reason to believe that there has been any escapement of income. If the enhanced
rent cannot be treated as the income of the assessment year 1989-90, the question of
escapement of income does not arise at all and the condition precedent for the
assumption of jurisdiction underSection 147of the Act does not exist and the writ Court
can always quash such a notice. The Supreme Court in catena of cases had quashed the
notice underSection 147when the Assessing Authority had no jurisdiction to issue the
said notice as the condition precedent for the assumption of jurisdiction did not exists and
was not satisfied.He further contended that if the Assessing Authority has no jurisdiction to reopen the
proceeding as the enhanced rent could not be treated as the income for the assessment
year 1989-90. The notice and subsequent assessment also have been quashed and he
relied upon the case reported in 41 ITR 191 at page 208. Therefore, Dr. Pal submitted
that since the notice issued underSection 147of the said Act was not satisfied, the
assessment pursuant to the said notice was issued, quashed by the order.On the contrary, Mr. D. K. Shome, Learned Senior Advocate appearing on behalf of
the respondent in the matter, submitted that the challenge in this Mandamus Appeal is to
a notice underSection 148dated 18th May, 1994. The tenant unilaterally increased the
rent with effect from 1st September, 1987 and which was accepted by the landlord.Mr. Shome further submitted that by a letter dated 18th April, 1994, the appellant
suggested settlement of tax liability and agreed to revision of assessment for the
Assessment Years 1990-91, 1991-92 and 1992-93, but contended that Assessment Year
1989-90 had become time barred, but would pay interest for subsequent years to
compensate the loss.Mr. Shome further submitted that by a letter dated 19th May, 1994, the appellant
requested for issuance of notices underSection 148for completion of reassessment
within May, 1994. Accordingly, notice underSection 148was issued on 18th May, 1994.Mr. Shome further submitted that by an interim order dated 23rd June, 1994 the
Hon'ble First Court directed continuance of the reassessment proceeding, but no
communication or enforcement of the final order without leave of the Court.Mr. Shome further submitted that by its letter dated 18th May, 1994, the appellant in
anticipation of reassessment deposited Rs. 51,37,676/- before 30th April, 1994 in self-
assessment challan to cover a substantial portion of additional liability. The appellant
recorded that steps have been taken to reopen the assessment from Assessment Year
1989-90. The assessee, however, prayed for waiver of interest and approached various
authorities including C.B.D.T (papers are annexed to the Paper Book at page 84).Mr. Shome further submitted that the assessment was completed underSection
143(1)by accepting the Assessee's Return and intimation was duly sent to the assessee.
No scrutiny assessment was done. Subsequently, the recorded reasons for reopening
were duly served upon the appellant/assessee which would be evident from the document
appearing at page 105 of the Paper Book. It is also recorded in the interim order passed
by the Appeal Court dated 22nd September, 1994 recording the submission on behalf of
the appellant that it had "deposited estimate amount of tax on the differential income for
the relevant year" and the Hon'ble Division Bench by its judgment observed that "since
there is a direct conflict of judgment between Division Benches, it is not proper for this
Court to accept one and reject the other". It was further contended on behalf of the
appellant that "there was no inconsistency in the view taken by the subsequent Division
Bench presided over by Justice S. B. Sinha".Mr. Shome further pointed out that the sole question of law inHamilton's case (194
ITR 391) at page 392 is as follows :-"Whether, on the facts and the circumstances of the case, the tribunal was right
in holding that the additional or extra rent attributable two preceding years of account
which could not be taxed underSection 22of the Act should, instead, be taxed under
the head "income from other sources"."Mr. Shome further pointed out that the sole question of law inHope India's case
(239 ITR 740) at page 745 is as follows :-"Whether, on the facts and in the circumstances of the case, and an
interpretation of the documents in respect of rent at 2/3rds of the house property at
18, Rabindra Sarani, Calcutta, for the Assessment Year 1984-85 andSection 23
(1)of the Income-Tax Act 1961, the income from the aforesaid house property on
the basis of enhanced rent sanctioned and agreed after the close of the previous
year to be paid by the various tenants and to determine the income under the head
"income from house property"."In answering the question of lawHamilton's case laid down the ratio as follows :-"The simple case is that the rent of the past year increased retrospectively
shall be the annual rent of such past year or years but not the annual rent of the
year in which it is received consequent upon subsequent increase (page 395). It is
further laid down at page 397 that rent, whether current or in arrears, is the yield of
the house property and the source of the income being the letting of a house
property by owner, the rent shall continue to have its character as income from
house property."In answering the question of lawHope India's case laid down the ratio (page 751)as
follows :-"A claim made by a landlord for enhancement of rent cannot be said to be
an amount receivable within the meaning ofSection 23 (1)of the Act. A claim or a
demand by itself does not come within the purview of the word "income received or
receivable"."Hope India's case consideredHamilton's case at page 747 and observed that the
question raised in theHope India's case had not been raised inHamilton's case at all.It
was further observed at page 748 that observations inHamilton's case must be
understood to have been rendered in the fact situation of that case.Hope India's case emphasized the meaning of the word 'receivable' as referred to
various Law Dictionaries and the Supreme Court Dictum reported in 26 ITR page 27. In
that context Hope India held that a claim or a demand by itself cannot be construed as
income receivable.According to Mr. Shome, two reference cases and the present Mandamus Appeal
are not identical. The facts in this situation of these two cases are identical. The issues
involved are different whereasHamilton's case laid down that retrospective increase of
rent cannot be brought under income from other source (Section 14).Hope India's case
laid down that a mere demand or claim cannot amount to income receivable within the
meaning ofSection 5of the Act. In the instant case the validity of the 148 Notice is in
question. The said notice is assailed on the sole ground that retrospective increase of
rent cannot amount to escapement of income.It is submitted that the present reference is strictly not necessary in view of the fact
the questions of law sought to be answered inHamilton's case were different and that
each case must be understood and limited to the facts of that case as observed by S. B.
Sinha, J. inHope India's case itself.Mr. Shome further contended that Chapter II deals with basis of charge.Section 4is the charging section, whereasSection 5is the computation provision.Section 5refers
to "received, deemed to be received, accrues, arises or deemed to accrue or arise". The
deeming provisions are built intoSection 2 (45)read withSection 5.Section 22refers to
"annual value of property" whereasSection 22is the charging provision,Section 23is the
computation provision which deals with determination of annual value.Section 23 (1) (a)refers a notional concept of rent as it states that the sum for which the property might
reasonably be expected to let from year to year.Section 23 (1) (b)refers to actual rent
received or receivable by the owner in excess of the sum referred to in Clause (a).
Clauses (a), (b) and (c) are disjunctive. In other words, actual rent received or receivable
comes into play only if it is in excess of the notional rent stipulated in Clause (a).He further submitted that retrospective enhancement of rent comes withinSection
23 (1) (a)in determining the annual value within the meaning ofSection 22of the Act. It is
submitted thatSections 22and23read together is a complete code inChapter IV of the
Act.He further submitted that just as deeming provision is built intoSection 5for
computing total income, deemed escapement of income is built intoSection 147(vide
Explanation 2 toSection 147). The impugned notice was issued after due compliance
with all statutory requirements. The reasons were recorded underSection 148 (2)as
income chargeable to tax which has escaped assessment exceeds Rs.1,00,000/- for
1989-90, the notice is not time barred underSection 149 (1) (b).He further submitted that there is no conflict betweenHamilton's case andHope
India's case as rightly submitted by the appellant and recorded in the order of reference.
The ratio of the said two cases is to be read and understood in the context of the
questions of law formulated and answered in the said two cases.He further submitted that the impugned notice underSection 148is neither time
barred nor invalid. It was issued in pursuance of the Assessee's own request. The
Assessee voluntarily submitted its return of income in response to the impugned notice
underSection 148and paid the tax for the additional rent on self-assessment along with
the said return. The interest charged in the reassessment order was ultimately waived by
the C.I.T. The factum of payment of tax is also reflected at page 165 in the Paper Book.Section 25Bexpressly made prospective with effect from 1st April, 2001 and has,
therefore, no application to Assessment Year 1989-90.In the Memorandum explaining
introduction ofSection 25B[242 ITR (ST) 144] the ratio ofHamilton's case andHope
India's case was recognized. Such increase of rent retains the character of income from
house property and suggested taxing the said income in the year of receipt.This matter was referred before the Special Bench by the Hon'ble Division Bench
on the ground that there is a direct conflict of judgment between two Division Benches
and, accordingly, the Hon'ble Division Bench thought it fit and referred the matter before
the Larger Bench so that the principle of the subject can be laid down.It is also to be noted that Dr. Pal at that point of time tried to distinguishthe said
judgmentin theHamilton's case (supra) with the judgment ofHope (India) Ltd.(supra) and
submitted that there is no inconsistency in the view taken by the subsequent Division
Bench in theHope (India) Ltd.case (supra) and in this subsequent decision the Hon'ble
Division Bench duly considered the judgment delivered in theHamilton's case (supra)
and, according to Dr. Pal, the judgment in Hope (India) Ltd. holds the field.We have also heard the learned Counsel for the parties extensively and after going
through the said decisions of the Hon'ble High Court and after taking into consideration
the facts of this matter, it appears to us that inHamilton's case the Court laid down
the ratio that the rent of the past year increased retrospectively shall be the annual
rent of the said past year or years but cannot be said to be the annual rent of the
year in which the said amount was received.It was also held that the said amount
which was received by the landlord subsequently being the enhanced rent is
nothing to yield of the house property and the character of such receipt, being the
rent shall continue to be an income from the house property whereas in theHope
India's case it has been laid down that a claim made by a landlord for enhancement
of rent cannot be said to be an amount within the meaning ofSection 23(1)of the
Act. Since a claim or a demand by itself does not come within the purview of the
word "income received or receivable".It would be also evident fromthe said
judgmentinHope India's case the Hon'ble Division Bench duly considered theHamilton's case and observed that the question raised in theHope India's case had
not been raised in thatHamilton's case at all.Therefore, it must be understood that
the facts of both the cases were not identical and inHope India's case the Division Bench
specifically dealt with the meaning of the word 'receivable' in the light of the decision of the
Hon'ble Supreme Court reported in 26 ITR 27 and held that a claim or a demand by itself
cannot be construed as income receivable. Therefore, in our considered opinion,
there cannot have any conflict in the said two decisions of the Hon'ble Division
Bench.Since, in our opinion, theHamilton's case it was laid down that the
retrospective increase of rent cannot be brought under income from other source
(seeSection 14of the Act) whereas in theHope India's case there was laid down that
a mere demand or claim cannot amount to income receivable within the meaning ofSection 5of the Act and, furthermore, we do agree with Dr. Pal as it would be
evident from the order of reference that Dr. Pal tried to distinguish the judgment in
theHamilton's case (supra) with the judgment ofHope (India) Ltd.(supra) and
submitted that there was no inconsistency in the view taken by the Hon'ble Division
Bench and further inHope India's case the Hon'ble Division Bench also considered
the judgment delivered inHamilton's case and he further contended before the Hon'ble
Division Bench that the amendments which had been brought about inSection 25Bwas
expressly made prospective with effect from 1st April, 2001.Therefore, we answer the reference as follows :We do not find that there is any conflict in those two judgments.Before we part, we do find that the moot question in this matter that the notice
issued underSection 147of the said Act whether issued by the department is without
jurisdiction and further the said question would only apply in a case where the Assessing
Authority has reason to believe that there has been any escapement of income.According to Dr. Pal, the enhanced rent cannot be treated as income of the
Assessment Year 1989-1990. Therefore, the question of escapement of income does not
arise at all and the condition precedent for the assumption of jurisdiction underSection
147of the Act does not exist and, therefore, it is the duty of the Writ Court to quash the
notice which was issued by the authority since the Assessing Authority has no jurisdiction
to issue the said notice.It appears from the fact that the Assessment Year in question is 1989-1990, Return
was filed in respect of that year on 22nd November, 1989 and an intimation was issued to
the appellant underSection 143 (1) (a)of the Act on 20th February, 1990. The fact reveals
that the appellant by a letter dated 18th April, 1994 suggested settlement of tax liability and
agreed to revision of assessment for the Assessment Years 1990-1991, 1991-1992 and
1992-1993 and contended that the Assessment Year 1989-1990 had become time barred,
but would pay interest for subsequent years to compensate the loss. By a letter dated 19th
May, 1994 the appellant itself requested for issuance of notices underSection 148for
completion of reassessment within May, 1994 (being notice underSection 148) on the
basis of such letter was issued on 18th May, 1994. It further appears that on 18th April,
1994 the appellant in anticipation of reassessment duly deposited Rs. 51,37,676/- before
30th of April, 1994 in self-assessment challan to cover a substantial portion of additional
liability. The appellant also informed that steps have been taken to reopen the
assessment from Assessment Year 1989-1990 and prayed for waiver of interest and also
approached various authorities.It would be evident from the said letter dated 9th May, 1994 that the assessee
addressed to the Commissioner of Income Tax, West Bengal VI as follows :"In view of the mistakes in computation of our liability we are withdrawing
our application dated 18.4.94 addressed to your honour and our application dated
25.4.94 addressed to the learned CHIEF Commissioner, Calcutta III on the same
subject and both the application may kindly be treated as cancelled.The assessee has prepared fresh returns for the assessment years 1990-91
to 1992-93 which can be filed immediately on receipt of noticesu/s. 147/148of the
I.T. Act for those years.The assessee will be grateful if the Assessing Officer is directed to issue the
notices U/s. 148 immediately and also to complete the re-assessment, within the
month of May 1994 so as to reduce the burden to interest.As a revised return has been filed for the assessment year 1993-94 and self
assessment tax with interestu/s. 234Band234Cof the I.T.Act has been deposited
both for the assessment years 1993-94 and 1994-95, the assessee will not incur
any further liability on account of interest for those two years."It further appears that the assessment was completed underSection 143(1)of the
Act by accepting the Assessee's Return and intimation was duly sent to the assessee.
Thereafter the Assistant Commissioner of Income Tax after recording the reasons issued
the notice underSection 147of the said Act. The reasons which were stated are as
follows :"Reasons recorded for initiating proceeding U/s. 147. The assessee
company in deriving its income mainly from house property. The Major portion of
its - building at 4, Brabourne Road, Calcutta in occupied by Government of India
through Estate Manager. The Government has enhanced rent from Rs. 4/- per Sq.
ft. to Rs. 8/- per Sq. ft. with retrospective effect from 1.09.1987 on 19.3.94 as per
Assessee's letter dated 25.4.94 placed on record. This has resulted in escapement
of income for Assessment Year 1989-90 to the time of Rs. 33,46,000/- Issue notice
underSection 148read withSection 147 (a)immediately for the assessment year
1989-90."It appears that Explanation 2,Section 149 (1) (b)of the Act provides that in
determining income chargeable to tax which has escaped assessment for the purposes of
this sub-section, the provision of Explanation 2 ofSection 147shall apply. It appears
under Explanation 2 toSection 147three classes of cases have been mentioned where it
would be deemed that income chargeable to tax which has escaped. The first class of
cases which is against Clause (a) of Explanation 2 is in applicable as it relates to a
situation where no Return of Income has been furnished. The second class of cases
which has been mentioned against Clause (b) of Explanation 2 relates to a situation where
a Return of Income has been furnished, but no assessment has been made. In such a
case it is only when the assessee understates his income that there would be a question
of escapement of income. The last class of cases is mentioned against Clause (c) of
Explanation 2 which deals with a situation where assessment has been made but income
chargeable to tax has been underassessed or income has been assessed at too low a
rate or such income has been made. The subject of excessive relief under the Act or
excessive loss of depreciation allowance or any other allowance under Act has been
computed. According to the appellant, no assessment had been made in respect of the
Assessment Year in question in the case of the appellants. It was also submitted by Dr.
Pal that there was no scope for understatement of income because the income which the
Authorities were claiming had escaped assessment and which was caused by virtue of
enhancement of rent in the year 1994 with effect from 1987. It appears that in this matter
the assessment has been made. The assessee did not dispute the fact that the case of
the assessee would come within the four-corners of Clause (c) of the said Section. The
question is whether an intimation underSection 143 (1) (a)of the Act can be an
assessment within the meaning of Explanation 2(c) toSection 147of the Act. It is also
clear from Explanation 2(c) toSection 147of the Act which does not speak of an
Assessment Order but merely of assessment. Therefore, there cannot be any reason for
limiting the word "assessment" used in Clause (c) of Explanation 2 toSection 147of the
Act.It further appears that the Hon'ble First Court held as follows :"Indeed, whensection 143(1)(a)was introduced by the Direct Tax Laws
(Amendment) Bill, 1987, it was made clear that the Section had been introduced to
provide for a new scheme of 'assessment' wherein requirement of passing an
Assessment Order in all cases where Returns are filed is dispensed with, and that
is what an intimation underSection 143(1)of the Act is, namely, an assessment.
That being the case, Explanation 2 (c) toSection 147of the Act is applicable and it
cannot, therefore, be said that the impugned Notice underSection 148of the Act is
vitiated on the ground as claimed by the petitioners."Therefore, in our considered opinion, the Hon'ble First Court correctly held that on
the given facts the impugned notice underSection 148of the Act cannot be said to be
vitiated. Since, in our considered opinion, the appellant has failed to make out a case that
the said notice is without jurisdiction and, hence, we uphold the decision of the Hon'ble
First Court and, accordingly, the appeal is also dismissed.I agree.(SURINDER SINGH NIJJAR, C. J.) (PINAKI CHANDRA GHOSE, J.)
(BISWANATH SOMADDER, J.) |
dd46f58b-8e6f-5db7-8c69-78d0d080d140 | court_cases | Central Administrative Tribunal - DelhiKuldip Singh vs Central Administrative Tribunal on 21 April, 2010CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No. 2951/2003
New Delhi this the 21st day of April, 2010
Honble Mr. Shanker Raju, Member (J)
Honble Dr. Veena Chhotray, Member (A)
Kuldip Singh,
Junior Accounts Officer,
Central Administrative Tribunal,
Principal Bench,
New Delhi. Applicant.
(By Advocate Shri L.R. Khatana)
VERSUS
1. Central Administrative Tribunal,
represented by its Principal Registrar,
Principal Bench,
New Delhi.
2. The Secretary,
Department of Personnel & Training,
North Block,
New Delhi.
3. The Secretary,
Ministry of Finance & Company Affairs,
(Department of Expenditure),
New Delhi. Respondents.
(By Advocate Shri A.K. Bhardwaj)
O R D E R
Shri Shanker Raju, Member (J):In the matter of revision of pay scale on invoking the doctrine of principles of equal pay for equal work, which had partake in character of a fundamental right, the following observations have been made by the Apex Court inState of Kerala Vs. B. Renjith Kumar & Ors.(2009 (1) SCC (L&S):The principle of "equal pay for equal work" has been considered, explained and applied in a catena of decisions of this Court. The doctrine of "equal pay for equal work" was originally propounded as part of the Directive Principles of State Policy inArticle 39(d)of the Constitution. Thus, having regard to the Constitutional mandate of equality and inhibition against discrimination inArticles 14and16, in service jurisprudence, the doctrine of "equal pay for equal work" has assumed the status of fundamental right.2.InUnion of India & Ors. Vs. Dineshan K.K.(2008 (1) Scale 74), insofar as interference in pay matters in judicial review, the following observations so highlighted are relevant:10. Initially, particularly in the early eighties, the said principle was being applied as an absolute rule but realizing its cascading effect on other cadres, in subsequent decisions of this Court, a note of caution was sounded that the principle of equal pay for equal work had no mathematical application in every case of similar work. It has been observed that equation of posts and equation of pay structure being complex matters are generally left to the Executive and expert bodies like the Pay Commission etc. It has been emphasized that a carefully evolved pay structure ought not to be ordinarily disturbed by the Court as it may upset the balance and cause avoidable ripples in other cadres as well. (Vide:Secretary, Finance Department & Ors. Vs. West Bengal Registration Service Association & Ors.and State of Haryana & Anr. Vs. Haryana Civil Secretariat Personal Staff Association . Nevertheless, it will not be correct to lay down as an absolute rule that merely because determination and granting of pay scales is the prerogative of the Executive, the Court has no jurisdiction to examine any pay structure and an aggrieved employee has no remedy if he is unjustly treated by arbitrary State action or inaction, except to go on knocking at the doors of the Executive or the Legislature, as is sought to be canvassed on behalf of the appellants. Undoubtedly, when there is no dispute with regard to the qualifications, duties and responsibilities of the persons holding identical posts or ranks but they are treated differently merely because they belong to different departments or the basis for classification of posts is ex-facie irrational, arbitrary or unjust, it is open to the Court to intervene.3.InNehru Yuva Kendra Sangathan Vs. Rajesh Mohan Shukla and Ors.(2007 (6) SCC 9), it has been ruled that once the employees are discharging identical duties with all functional requirements, they are entitled to the benefit of similar pay scale, as permitted to counterparts in a same situation.4. With the above backdrop, applicant, a Junior Accounts Officer, working in Central Administrative Tribunal since 30.09.1992, on the basis of Ministry of Finance and Company Affairs, Department of Expenditure O.M. dated 28.02.2003 by which pay scales have been revised on notional basis w.e.f. 01.01.1996 and on actual basis w.e.f. 19.02.2003 to the staff belonging to organized accounts department, has sought grant of pay scale of Rs.6500-10500 on notional basis w.e.f. 01.01.1996 and with actual benefits with arrears w.e.f. 19.02.2003.5. After the O.A. was admitted, an order passed on 08.09.2004 took cognizance of decision of the High Court of Karnataka inUnion of India Vs. Sri Unni Menon (WP No.33496/2000), decided on 18.04.2004 whereby the decision of the Tribunal in OA 15/99, decided on 01.03.2000 holding Accounts Department in the CAT as organized cadre, was overturned. But SLP is pending before the Apex Court and the law will take its own course. The O.A. was disposed of with liberty to the applicant to revive it on availability of decision in SLP.6. M.A. 649/2010 filed by the applicant sought modification in the order passed on 08.09.2004 by relying upon the decision of the co-ordinate Bench of SOs/PSs in CAT in 164/2009,S.R. Dheer & Ors. Vs. Union of India & Ors., decided on 19.02.2009 as well as the decision of the Apex Court inState of Mizoram and Anr. Vs. Mizoram Engineering Service Association and Anr.(2004 (6) SCC 218), wherein denial of pay scale on the ground that the service is not an organized one, has not been found to be an impediment for invoking the doctrine of principles of equal pay for equal work. Learned counsel stated that the issue is no more res integra and the order may be modified and the matter be heard finally.7. An order passed on 05.04.2010 allowed the M.A and listed the case for final hearing with a notice to DOPT as well as Ministry of Finance. In pursuance thereof, Shri A.K. Bhardwaj, learned counsel for the respondents, was heard on appearance.8. The brief factual matrix of the case transpires that the applicant, who was absorbed in CAT as Senior Accountant on 01.11.1990, was promoted as Junior Accounts Officer, w.e.f. 30.09.1992. Respondent No. 3, Ministry of Finance and Company Affairs, Department of Expenditure, vide O.M. dated 28.02.2003 allowed in all Ministries/Departments of Govt. of India the higher pay scales for the staff belonging to the organized service notionally from 01.01.1996 and actually from 19.02.2003. By an order passed on 04.03.2003, the pay scale of Rs.6500-10500 was extended to Junior Accounts Officers in Central Civil Accounts Service. Accordingly, vide Office Order dated 06.05.2003 of the Central Administrative Tribunal, Principal Bench, the pay of the officers and staff of Pay and Accounts Office, CAT, was fixed in the higher scales of pay, which led to representation by the applicant for grant of upgraded pay scale of Rs.6500-10500. An internal communication by the DOPT dated 25.06.2003 sought from the CAT a self contained proposal for extension of the benefits to the accounts personnel of CAT as per O.Ms. dated 28.02.2003 and 04.03.2003.Learned counsel for the applicant states that as per the notified Rules, the CAT has its own separate accounts service having the sanctioned posts of Deputy Controller of Accounts, Accounts Officer, Junior Accounts Officer, Senior Accountant and Junior Accountant. As per GSR 825 (E) dated 31.10.1985, Central Administrative Tribunal (Staff) (Conditions of Service) Rules, 1985, provided that the conditions of service of the officers and other employees of the Tribunal in matters of pay and allowances shall be regulated in accordance with such rules and regulations as are for the time being applicable to officers and employees belonging to Group A, Group B, Group C as well as Group D, as the case may be, of the corresponding scales of pay stationed at those places. Learned counsel further states that when upgraded pay scales have been made applicable to all Central Government offices, CAT being one such organization, the employees of CAT in corresponding grades cannot be denied the same benefit as it will be an invidious discrimination with hostility. Learned counsel would contend that once when there is accounts cadre in CAT with duly notified rules, the same has to be treated as an organized cadre and rightly the co-ordinate Bench of the Tribunal in Unni Menons case (supra) ruled the same. Though the High Court of Karnataka had overturned the decision of the Tribunal inUnni Memon(supra), but the SLP is pending and the law will take its own course.Learned counsel has subsequently stated that once the parity of SOs and PSs with CSS/CSSS has been established in S.R. Dheers case (supra), the same would mutatis mutandis apply to the accounts cadre of the CAT and the higher pay scales cannot be denied to the applicant as Junior Accounts Officer.Learned counsel has brought to our notice the case ofState of Mizoram(supra) where the higher pay scales were denied on the ground that Engineering Service in the State was not an organized service. The Apex Court in the aforesaid case ruled as follows:6. Great stress was laid on the fact that Engineering Service in the State was not an organized service and therefore, it did not have categorization by way of entrance level and senior level posts and for that reason the higher scale of Rs. 5900-6700 which was admissible for senior level posts could not be given in the Engineering Service. The main reason for dubbing Engineering Serv-ice as an unorganized service in the State is absence of recruitment rules for the serv-ice. Who is responsible for not framing the recruitment rules? Are the members of the Engineering Service responsible for it? The answer is clearly 'No'. For failure of the State Government to frame recruitment rules and bring Engineering Service within the frame-work of organized service, the engineers can-not be made to suffer. Apart from the rea-son of absence of recruitment rules for the Engineering Service, we see hardly any dif-ference in organized and unorganized serv-ice so far as Government service is con-cerned. In Government service such a dis-tinction does not appear to have any rel-evance. Civil Service is not trade unionism. We fail to appreciate what is sought to be conveyed by use of the words 'organised service' and 'unorganised service'. Nothing has been pointed out in this behalf. The ar-gument is wholly misconceived.12. If one has regard to the above, having failed to declare the accounts service of the Tribunal as organized service, which is not only regular accounts service but also governed by the notified rules, first of all, it has to be treated as an organized service. Even if the issue is sub judice before the Apex Court, the same would not come in the way of the applicant to be accorded the benefits of higher pay scale on the principles of equal pay for equal work as failure to frame the rules by the Government and bring the accounts service of the CAT as an organized service, cannot be blamed on the applicant. Learned counsel states that in one of the decisions of the Tribunal in OA 208/1997 inJ.R. Chobedar Vs. Union of India & Ors.decided on 24.02.2004 pertaining to the accounts service in Border Security Force, the issue of organized and unorganized service has not been found to be apt in law and relying upon the decision of the Apex Court inRandhir Singh Vs. Union of India & Ors.(1982 (1) SLR 756), equal pay for equal work was allowed to grant the revised pay scales. This decision of the Tribunal when assailed in the High Court of Delhi in WP (C) No. 20065-67/2004), a judgment dated 25.01.2005 not only affirmed the decision of the Tribunal but the following observations have been made:Similarly, on 7th December, 1995, the BSF, Pay and Accounts Division also taking into consideration the rejection by the Ministry of Finance disposed of the application of the respondent that it cannot be treated as an organized accounts service. On the basis of the aforesaid, it was contended before us that the finding of the learned Tribunal in the impugned order is not as per the report of the Pay Commission and BSF and there was no cadre of the Accounts Officer in the BSF and the anomaly has come up in view of the re-structuring of the cadre. In our view the reliance by the petitioner on the letter dated 6th September, 1995 (supra) is misplaced. The point raised by the learned counsel for the petitioner was considered in depth by the Tribunal and on the basis of the material before the Tribunal, the Tribunal gave the opinion that if certain sales were missing that will not take away the trait of the organized cadre. It was also considered that the method and manner of promotion has nothing to do with a cadre being organized or not. If it has other traits that it is a cadre comprising of reasonable number of persons, they have specific rules in this regard and there is no other factor which prompts one to conclude that it is an unorganized cadre. Relying upon the judgment of this Court in T.N. Natarajan and Ors. v. Union of India and Ors. in CWP 176/1979 decided on 3rd September, 1980 which also dealt with a similar controversy, it was held by the Tribunal by a reasoned order that the cadre of the respondent was an organized cadre.4. We find no infirmity with the impugned order. No other point has been urged before us. We find no merit in the petition. Dismissed.13. The aforesaid decision was also upheld by the Apex Court in CC 6923-6925/2005 by an order dated 29.07.2005. Learned counsel states that in all fours, the present issue is covered by the aforesaid ratio. Shri Khatana further relies upon the decision of the Tribunal in OA 969/2006,R.K. Sharma & Ors. Vs. Union of India & Ors.decided on 10.05.2007 whereby on the basis of the judgment inJ.R. Chobedar(supra), the applicants, Junior Accounts Officers, were allowed to grant the higher pay scale of Rs.6500-10500.While it was challenged before the High Court in WP (C) No.7231/2007, decided on 29.05.2009, not only the decision of the Tribunal has been upheld but the issue regarding financial constraints has been repelled on the basis ofState of Mizoram(supra) with the following observations:6. In the present case, the petition does not disclose on what basis the respondents are being treated as members of an unorganized service while those holding cadre posts in Civil Accounts Service are being treated as belonging to Organized Accounts Service. This is not the case of the petitioner that they are performing different functions or that their qualifications for entry in service or promotion etc are different. The very fact that the petitioner has accorded the higher scale to the respondents, albeit from a later date, indicates that the petitioner accepts that there is no such distinction between the respondents and those holding cadre posts, as would disentitle them from the same pay which is being drawn by the holders of cadre posts.7. In view of the above, we find no ground to interfere with the order passed by the Tribunal. The writ petition is devoid of any merit and is hereby dismissed.14. On the other hand, respondents counsel vehemently opposed the contentions of learned counsel for the applicant and stated that an Accounts Officer in Allahabad Bench of the Tribunal had preferred O.A. 45/2010 for grant of upgradation of grade pay of Accounts Officers from Rs.4600 to Rs.5400, which was disposed of by order dated 13.01.2010, with a direction to the respondents to pass a speaking/reasoned order. In compliance of the aforesaid order of the Tribunal, respondents have passed an order dated 15.04.2010 wherein it is stated that as per the CCS (RP) Rules, 2008, the Accounts Officers of the Organized Accounts Cadre have been placed in the scale of Rs.8000-13500 with the Grade Pay of Rs.5400 in the Pay Band-2. The acceptance of the request of the applicant would, therefore, place the Accounts Officers of the CAT in a higher pay scale of PB-3 with grade pay of Rs.5400 than the Accounts Officers of the Organized Accounts Cadre which would not be justified. Learned counsel would also contend that the Sixth Pay Commission in para 3.8.5 has not considered any parity between various posts in organized and un-organized Accounts Cadre and has recommended that the existing relativity between the accounts related posts outside organized accounts cadres and ministerial posts shall be maintained. As such, as Accounts Officers in the CAT had no pre-existing relativity prior to 01.01.2006 with the SOs/PSs in CAT as well as the SOs/PSs of the CSS, their claim has been turned down. Learned counsel would also rely upon to distinguish the case ofJ.R. Chobedar(supra) by contending that there are two separate cadres organized and unorganized in the accounts service. In the counter reply, it is stated that the word `appropriate Government is defined by Section 2 (d) of the Act and under Section 13 (2), the salaries, allowances and conditions of service of the officers and other employees of a Tribunal shall be such as specified by Rules made by the `appropriate Government. The Accounts Staff of the Central Administrative Tribunal cannot be called as an Organized Accounts Cadre and the Vth Pay Commission in its report has stated that the Organized Accounts cadres are mainly in the Indian Audit & Accounts Department under the Comptroller & Auditor General of India. As such, there are separate rules governing the conditions of service of other Organized Accounts Cadre.Learned counsel would further contend that the applicant is not entitled for the benefit of the O.M. and he prays for dismissal of the O.A.15. We have carefully considered the rival contentions of the parties and perused the material on record.16. Any administrative jurisdiction executed cannot take defence of financial constraints for grant of fundamental right of parity in pay scale, as ruled inHaryana State Minor Irrigation Tubewells Corporation & Ors. Vs. G.S. Uppal & Ors.(2008 (7) SCC 375).When an administrative authority acts whether it includes the Cadre Controlling Authority or Ministry of Finance, any order passed on administrative side on all fours is to be decided on the touchstone of reasonable object sought to be achieved, as ruled inNoida Entrepreneurs Assn. Vs. Noida & Ors.(2008 (1) SCC (L&S) 672). The equality in law has to prevent hostile discrimination which has no reasonable nexus with the object sought to be achieved, which is an act on administrative side, cannot pass the twin test in the wake ofArticle 14of the Constitution of India.17. In judicial functioning, if a decision arrived at earlier like in the present case, is sub judice in the Supreme Court, it is open for us to modify the orders in view of subsequent events and changed circumstances. As the decision of the High Court of Karnataka inUnni Menon(supra) ruled against for the purposes of grant of parity of pay, service in Accounts Cadre as an organized one since not having been overturned and modified by the Apex Court, may not hold a valid precedent, but decision in Mizorams case (supra) covers the issue. In the event of a decision arrived in sub judice SLP, law shall take its own course. However, from the stand taken by the respondents, it is clear that denying the pay scale and benefit of O.M. dated 28.02.2003 to the applicant, is solely on the ground that the Accounts Cadre in the Tribunal is not an organized cadre. However, what has been allowed to the Junior Accounts Officers in other Ministries/Central Government Departments as well in Organized Accounts Departments, is the pay scale of Rs.6500-10500. CAT (Staff) (Conditions of Service) Rules, 1985, more particularly Rule 4, provides that the conditions of service of officers and other employees of the Tribunal, including accounts cadre, in the matter of pay and allowances, etc. are to be regulated in accordance with the rules and regulations, as are for the time being applicable to officers and employees belonging to Group A, Group B, Group C as well as Group D of the Central Government, which leads no doubt in our mind that when statutory rules on subordinate legislation have been framed by the Government, the administrative orders would not override it. As such, whatever the pay scales are promulgated for the accounts cadre in other Ministries and Departments, the same would have to be mutatis mutandis adopted in the accounts cadre of the CAT, especially when there is no case made out by the respondents as to the functional requirement of accounts cadre in Tribunal being at variance and distinction in discharge of duties and responsibilities attached to the posts in accounts cadre with that of their counterparts in other Departments and Ministries. It is to be noted that as per Notification dated 17.12.1998 promulgating Central Administrative Tribunal (Staff) (Conditions of Service) Amendment Rules 1998 a JAO has been placed in the pay scale of Rs.5500-9000 but an explanatory memo refers to the CAT (Staff) (Conditions of Service) Rules of 1985 whereas the accounts cadre officers are to be placed and extended the revised pay scale, as recommended by the VthCPC. VthCPCwould have allowed lesser pay scale but once the pay scales of Junior Accounts Officers have been revised from Rs.5500-9000 to Rs.6500-10500 by the Central Government to their employees, in various departments and Ministries, the same cannot be denied to the applicant as the objection of organized service would have no impediment as what is required under the statutory rules of the Tribunal is parity with the counterparts on extension of pay scales by Government orders. The pay scales have not been accorded to the applicant with a stipulation that the accounts service in the CAT is not an organized service. Rather, the question of unorganized or organized service would have no bearing in granting a higher pay scale to the applicant because accounts cadre in the Tribunal is a regular one governed by notified Government rules which are the essential ingredients and components. As such, the accounts service in the Tribunal has to be treated as a deemed organized cadre for the purposes of pay and allowances.18. The contention put forth by the respondents counsel as to the decision of the Allahabad Bench and an order passed on 15.04.2010 taking resort to the recommendations of the VIthCPCfor grant of pay bands, is not sustainable, since in the present case, we are adjudicating the issue which is earlier to the VIthCPCrecommendations i.e. grant of benefit of Vth Pay Commission notionally from 01.01.1996 and actually w.e.f. 19.02.2003. When the VIthCPCrecommendations and CCS (RP) Rules,2008 have not come into existence, a prospective administrative decision would not be applied retrospectively to deprive the applicant of his rightful claim.19. Insofar as the organized cadre is concerned, on the analogy that when SOs and PSs of Tribunal could have been treated at par with CSS where accounts cadre is being given the higher pay scales as per Ministry of Finance O.M. dated 28.02.2003, it would be illogical not to have applied the parity in all its implications to the accounts cadre of the CAT, as decided in S.R. Dheers case (supra), which has since been implemented. Accepting the aforesaid proposition, we cannot take a contradictory stand approbating and reprobating simultaneously in case of accounts cadre to deprive the applicant the benefit of O.M. dated 28.02.2003.20. Assuming that the decision as to organized cadre is genesis for rejecting the request of the applicant for grant of higher pay scale, irrespective of whether the accounts service in the Tribunal is an organized one or not, observations of the Supreme Court in State of Mizorams case (supra) that failure of the government to frame the rules and bring the Engineering service as an organized service cannot be attributable as a fault to the applicants, are relevant to the present case. Since the applicant has been discharging duties with all functional requirements and all pre-conditions satisfied at par with their counterparts, there would be hardly any difference in organized and unorganized service. Insofar as the Government service is concerned, this distinction is irrelevant. What is to be tested in grant of higher pay scale is the doctrine of principles of equal pay for equal work, which is well explained inB. Renjith Kumar and Nehru Yuva Kendra Sangathan(supra) and as there has been no case established by the respondents that the applicant is not discharging functions and duties attached to the post at par with their counterparts, the principle of equal pay for equal work would mutatis mutandis apply for grant of higher pay scale on notional and actual basis based on the O.M. dated 28.02.2003.21. Moreover, State of Mizorams case (supra) which has been upheld upto the Apex Court level has applicability and the distinguishability shown by the respondents counsel is misconceived. As such, when in all Ministries and Departments, organized accounts cadre gets the higher pay scales while performing identical duties which are being performed by the applicant, we do not find any intelligible differentia which has a reasonable nexus with the object sought to be achieved and such a distinction is not logical but hostile, invidious, and in breach ofArticle 14of the Constitution of India. Moreover, R.K. Sharmas case, which decided the aforesaid plea was affirmed by the High Court, which in all fours covers the present issue.22. Resultantly, O.A. is allowed. Respondents are directed to grant the benefit of upgraded pay scale of Rs.6500-10500 to the applicant on notional basis w.e.f. 01.01.1996 and with actual benefits w.e.f. 19.02.2003 with arrears within a period of two months from the date of receipt of a copy of this order. No cots.( Dr. Veena Chhoray) (Shanker Raju)
Member (A) Member (J)
`SRD |
b911d228-6076-5322-9e04-117b82eab143 | court_cases | Patna High Court - OrdersMarkendey Pandey vs State Of Bihar on 8 July, 2008IN THE HIGH COURT OF JUDICATURE AT PATNA
Cr.Misc. No.6851 of 2008
MARKENDEY PANDEY
Versus
STATE OF BIHAR
WITH
Cr.Misc. No.13335 of 2008
VIKASH SINGH
Versus
THE STATE OF BIHAR
-----------
4/ 08.07.2008Since both the above bail applications have arisen out of one
Barhia P.S. Case No. 144 of 2007 they have been heard together and are being
disposed of by this common order.The case underSections 147,148,149,307,353and302of the
Indian Penal Code and underSections 25(1-B) A/26/27/35 of theArms Actwas
registered against these two petitioners.According to the allegation the criminals have assembled when
the police arrived then they started firing. In exchange of firing five associates of
Mukesh Singh and one Tun Tun Singh @ Pahalwan were killed. From the place
of occurrence huge quantity of fire arms and cartridges were also recovered.Submission is that the petitioners are land holders and they have
no concern with any Mukesh Singh or his gang. No persons were injured on
behalf of police. Petitioners are of fair antecedent.Considering the facts and circumstances of the case, the
petitioners Markendey Pandey in Cr. Misc. No. 6851 of 2008 and Vikash Singh
in Cr. Misc. No. 13335 of 2008 are ordered to be released on bail on furnishing
bail bond of Rs. 10,000/- (ten thousand) each with two sureties of the like
amount each to the satisfaction of the A.C.J.M., Lakhisarai in connection with
Barhia P.S. Case No. 144 of 2007.kksinha/ (Shyam Kishore Sharma, J.) |
0664e0e2-c1cf-5551-bb9c-b74809bb95cf | court_cases | Calcutta High CourtM/S. Lamni Finance Private Limited vs Kumar Mangalam Lamboria on 14 May, 2015Author:Biswanath SomadderBench:Biswanath SomadderORDER SHEET
C.P. No. 288 of 2015
IN THE HIGH COURT AT CALCUTTA
ORIGINAL JURISDICTION
IN THE MATTER OF :
M/S. LAMNI FINANCE PRIVATE LIMITED
AND
KUMAR MANGALAM LAMBORIA
Versus
THE REGISTRAR OF COMPANIES, WEST BENGAL
BEFORE:
The Hon'ble JUSTICE BISWANATH SOMADDERDate: 14th May, 2015
Mr. Patita Paban Bishwal, Adv. for the
petitioner.Ms. Kanika Gupta, Adv. for Union of
India.The Court: Let the affidavit of service and the statement showing
calculation of fees and additional fees payable for e-filing of the pending
statutory documents be taken on record.Perusing the said statement, it appears that a sum of Rs.1,66,400/-
would be due from the company now if the records and documents not filed
earlier were to be furnished today.Subject to the company paying a sum of Rs.1,90,000/- to the Registrar
of Companies within a fortnight from date, the name of the company will be
restored to the list of the active companies and the company and its officials
will be given access to the relevant portal.Upon the money being tendered, the same will be deposited in the
Central Government's account where penalties, fines and fees are put in.2For a period of two years from date, the company should not make any
default in depositing the documents required to be deposited under theCompanies Act.In case of any default, the Registrar will be entitled to strike off the name
of the company, upon notice to it, on the strength of this order.C.P. No.288 of 2015 is allowed accordingly.(BISWANATH SOMADDER, J.)
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3fb51f54-8540-5d6e-ae07-b1f7f5c38f17 | court_cases | Madras High CourtAnnappattu vs Muthusamy on 27 April, 2012Author:V.Periya KaruppiahBench:V.Periya KaruppiahIN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.04.2012
CORAM
THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH
S.A.Nos.24 and 25 of 2004
1. Annappattu ... Appellant in both appeals
2.Chinnaiyan ... Appellant in S.A.No.24 of 2004
vs.
1.Muthusamy ... Respondent in S.A.No.25 of 2004
2.Kannusamy ... Respondent in both appeals
Appeals filed underSection 100of C.P.C. against the judgment and decree dated 30.06.2003 in A.S.Nos.255 of 2002 and 256 of 2002 on the files of the Principal District Judge, Perambalur, reversing the judgment and decree dated 27.06.2002 in O.S.Nos.557/1993 and 894/1994 on the files of the District Munsif Court, Perambalur.
For Appellants : Mr.R.Selvakumar
For Respondents : Mr.P.Valliappan
C O M M O N J U D G M E N TS.A.No.24 of 2004:This appeal is directed against the judgment and decree passed by the 1st appellate court in A.S.No.255 of 2002 dated 30.06.2003 disposed along with A.S.No.256 of 2002 in reversing the judgment and decree passed by the trial court in O.S.No.557 of 1993 dated 27.06.2002 in dismissing the suit.2. The appellants were the defendants and the respondents were the plaintiffs in O.S.No.557 of 1993 before the lower court.3. The case of the plaintiffs as stated in the plaint would be as follows:-(i) Originally, the suit property belonged to one Rengasamy. He died in the year 1953. On his death, his wife Valliammai, his daughters Nallammal, Chinnammal and Manickathammal inherited those properties as his legal heirs and thereafter, the mother Valliammal died in 1959 leaving the said three daughters as her legal heirs. As perHindu Succession Act, 1956, the three daughters were equally entitled to 1/3rd share in the suit property. The three daughters partitioned their property and in the said partition, Manickathammal also got her share in the suit property. She married the first defendant. Manickathammal had no issues. Since Manickathammal lived with her husband in Kandiratheertham village, the first plaintiff along with the second plaintiff were doing cultivation in the land of Manickathammal on lease basis and gave the lease amount to Manickathammal. In the year 1989, Manickathammal died issueless. Since Manickathammal got the suit property through her father, as perSection 15(2)of the Hindu Succession Act, her father's legal heirs are entitled to the properties of Manickathammal.(ii) The first defendant has no right in the properties of Manickathammal. A settlement deed executed by the first defendant in favour of his second wife, the second defendant on 04.09.1992 was not valid in law. In respect of the same property, a sale deed executed in favour of the 3rd defendant is also not valid in law. Based on the same, the 2nd and 3rd defendants have no right to claim the suit property. The first defendant died during pendency of the suit proceedings. The first plaintiff also died during the pendency of the suit on 04.03.1994. The first plaintiff has executed a registered Will in favour of her daughter, the 3rd plaintiff. The property which belonged to the mother of the second plaintiff and the property of Manickathammal came to the hands of the 2nd plaintiff as per family arrangement. Thus, the suit property was enjoyment by the plaintiffs. In the 'B' schedule property, already there was a thatched house but the same had fallen down and at present, the said place was vacant. The 1st and 2nd defendants were living 35 kms away from the suit property, from the date of their marriage. The defendants did not give any reply to the notice issued by the plaintiffs through their counsel. Hence, the plaintiffs prayed for declaration that the 'A' and 'B' schedule properties belonged to the 2nd and 3rd plaintiffs and for issuance of permanent injunction restraining the defendants from disturbing the peaceful possession and enjoyment of the suit property by the plaintiffs.4. The objections of the defendants raised in the written statement filed by them would be as follows:-The suit property belonged to Rengasamy. After his death, the suit property devolved on his wife Valliammal and after Valliammal's death the suit property devolved on her three daughters and the three daughters partitioned the properties and each of them were enjoying their property separately. During partition, the suit property came to the hands of Manickathammal and there is no dispute in that regard. It is not correct to state that Manickathammal died intestate leaving the suit property. On 17.1.1989, Manickathammal executed an unregistered will in favour of the first defendant in respect of the suit property. Thus, the suit property will not go into the hands of heirs of Manickathammal's father. The 1st and 2nd plaintiff has no right in the suit property. The sale deed executed by the first defendant in favour of the 3rd defendant on 4.9.1992 in respect of 'B' schedule property is valid in law. At the same time, the gift deed executed by the first defendant in favour of the 2nd defendant in respect of the 'A' schedule property is also valid in law. From the date of execution of the sale deed and gift deed, the suit property was in enjoyment of the 2nd defendant's brother Nallathambi. The 3rd defendant is the daughter of Nallathambi. Both of them are living in the village where the suit property is situated. The defendants have sent reply to the notice sent by the plaintiffs' counsel. Hence, the suit may be dismissed.5. The case of both parties stated in the reply statement and the additional written statement would be thus:(i) In the reply statement it was stated that Manickathammal did not executed any sale deed on 17.1.1989. The said Will is a fabricated one. The Will was fabricated in order to get property right and to reject the right of the plaintiffs. According to Hindu Succession Act, the suit property belonged only to the legal heirs through Manickathammal's father. Further, the alleged Will dated 17.1.1989 or the xerox copy of the alleged Will was not produced by the defendants before the Court and no statement was made in the counter in respect of the production of the alleged Will.(ii) In the additional written statement filed by the defendants it was stated that it is true to state that Manickathammal had executed a will. Since it was an unregistered Will, it will be produced at the time of trial. Ignoring the other legal heirs, the first plaintiff has executed the Will in favour of the 3rd plaintiff. Since it was accepted by all the plaintiffs, it cannot be stated that the Will is fabricated and it should be rejected.S.A.No.25 of 2004:6. This appeal is directed against the common judgment and decree passed in A.S.No.256 of 2002 along with A.S.No.255 of 2002 dated 30.06.2003 in reversing the judgment and decree passed in O.S.No.894 of 1994 dated 27.06.2002 in decreeing the suit.7. The appellant was the plaintiff and the respondent was the defendant before the trial court.8. The case of the plaintiff as stated in the plaint would be as follows:-The facts in this suit and the facts in O.S.No.557 of 1993 are similar. The 2nd defendant in O.S.No.557 of 1993 is the plaintiff in this suit. The third defendant in O.S.No.557 of 1993 is the defendant herein. The son of Chinnammal is the defendant herein. This suit has been filed seeking permanent injunction. When the plaintiff had gone out of station, the defendant, in order to sell the property to Kotarai Alagappa Paayachi, tried to cut the babul trees standing in the suit property. The same was thwarted by the brother of the plaintiff. Since there is likelihood of the defendant to cut the trees again, the present suit has been filed seeking permanent injunction.9. The objections raised by the defendant in the written statement would be as follows:-The plaintiff does not have any right in the suit property. The allegation that he was enjoying the property through his brother is also not true. It is not true to state that the defendant tried to cut the trees when the plaintiff was not in station. After the death of Manickathammal, the suit property devolved on the defendants family and Muthusamy family and they were enjoying the same. Since the plaintiff in this suit and her husband are interfering with the enjoyment of the suit property by Chinnammal and Muthusamy, the suit O.S.No.557/1997 has been filed. Since no declaration has been asked for in this suit, the suit filed by the plaintiff herein has to be rejected. The 'A' schedule property of the suit O.S.No.557 of 1993 is shown as the suit property in O.S.No.894 of 1994.10. The trial court had framed necessary issues in both the suits and clubbed both cases for a common trial. The trial court has recorded the evidence in O.S.No.557 of 1993 and the said evidence was treated as the evidence for the connected suit, O.S.No.894 of 1994. After the appraisal of the evidence adduced on both sides, the trial court had come to a conclusion of dismissing the suit in O.S.No.557 of 1993 and decreed the suit without costs in the suit in O.S.No.894 of 1994 in a common judgment rendered on 27.06.2002.11. Aggrieved by the common judgments and the decrees passed in O.S.No.557 of 1993 and O.S.No.894 of 1994, the plaintiffs in O.S.No.557 of 1993 and the defendant in O.S.No.894 of 1994 preferred appeals respectively in A.S.No.255 of 2002 and 256 of 2002 before the 1st appellate court. The 1st appellate court had also taken both the appeals jointly and heard the arguments and passed a common judgment on 30.06.2003 and thereby reversed the judgments and decrees passed by the trial court and thus, both the appeals were allowed.12. The aggrieved defendants in O.S.No.557 of 1993 and the plaintiff in O.S.No.894 of 1994 preferred these two second appeals before this Court. On the admission of both the appeals, this Court had formulated common substantial questions of law on 06.01.2004 for being considered in these appeals which are as follows:-"1. Whether the courts below erred in applyingsection 15(2)of the Hindu Succession Act to the property of the deceased when partition was specifically pleaded by the respondents.2. Whether the lower appellate court went wrong in rejecting the Will when there is abundant evidence available on record to prove the Will."13. For convenience, the status of parties in O.S.No.557 of 1993 is being maintained, infra, as the evidence was recorded before the trial court in the said suit only.14. Heard Mr.R.Selvakumar, learned counsel for the appellants/defendants and Mr.P.Valliappan, learned counsel for the respondents/plaintiffs.15. The learned counsel for the appellants (defendants in O.S.No.557 of 1993) would submit in his argument that the 1st appellate court had interfered with the well considered judgment of the trial court without any sufficient reasons. He would also submit that the non-registration of the Will would not raise any suspicion over the genuineness of the Will. He would further submit that the non-inclusion of the entire properties of the testatrix would not also create any suspicion in the minds of the Court. However, the 1st appellate court had doubted the genuineness of the Will and had come to an erroneous conclusion. He would also submit that the irrevocability of the Will was not the intention of the testatrix and the mere reading of the Will would go to show the character of the Will that it is revocable or modifiable by the testatrix, she had expressed her intention not to revoke the said particular Will. He would further submit that merely because of expressing her intention in the Will itself, it would not restrain her from cancelling or revoking the Will since it was already stated in the Will. He would further submit in his argument that the evidence of PW1 and PW2 in respect of revocability of the Will, cannot be sustained. He would also submit that the Will produced in Ex.B2, cannot be treated as settlement deed merely because the intention of the testatrix has been expressed that she has no intention to revoke the said Will. He would further submit that the findings of the 1st appellate Court that the said Will Ex.B2 has to be treated as settlement deed and in the said circumstances, the said document ought to have been registered compulsorily and without such registration of the said document that could not be relied upon in evidence, cannot be sustained because, the intention of the testatrix cannot be mis-interpreted to the character of the document as the settlement deed. He would further submit that if the impugned Will Ex.B2 has been read in full, it would clearly show that it was only an expression of her will for not revoking the same and that would show that she has the power of revoking the Will at any time and to dispose the said property as per her wish. She would also submit that the 1st appellate court has passed its findings only on the said notion and if the Will Ex.B2 is considered out and out as a Will, the findings of the trial court ought to have been registered. He would also submit that when the Will is proved to be true and genuine, it will come into force on the death of the testatrix, Manikathammal and thus, the husband of the defendant Ponnusamy would get the entire property through the said Will. He would also submit that after the death of Ponnusamy, naturally, the defendant would get at the property as his legal heirs and the plaintiffs have no legs to stand for claiming the property. He would further submit that even though the Will Ex.B2 was not considered to be a true document, the properties belonged to Manikathammal would be inherited by her husband Ponnusamy as per the provisions ofSection 15of Hindu Succession Act. He would also submit that the said Ponnusamy being the husband of Manikathammal, is entitled to the separate properties of his wife as perSection 15 (1) (a)of the said Act. He would also submit that even though, the suit properties were originally belonged to the mother of Manikathammal, the said Manikathammal had got the properties by virtue of a partition had in between the daughters of her mother and therefore, the character of the property that she got it through mother would be lost and therefore, the proviso underSection 15 (2)(a)of the said Act would not apply to the present case and the provisions ofSection 15(1)(a)would only come into operation. He would therefore, submit that even otherwise, the Will is not found to be true, the said Ponnusamy being the husband of Manikathammal would get at the properties and after his demise, it would devolve only upon the defendant. He would further submit that the defendants have preferred the Will by examining the attestors as DW2 and DW3 and the scribe as DW4 and they have clearly spoken about the execution of the Will by the said Manikathammal and there was no contradiction in the evidence regarding execution of the Will. He would also submit that the alleged contradiction found by the 1st appellate court are not in respect of the attestation and execution of the Will and therefore, their evidence should not be rejected by the 1st appellate court. He would also submit that the evidence of DW1 was also not properly appreciated by the 1st appellate court. He would further submit that the requirements of proof underSection 68of the Indian Evidence Act have been complied with by examining DWs. 2 to 4 and therefore, there should not be any interference in the judgment of the trial court.He would further submit that the presence of the attestors as well as the scribe of Ex.B2 Will, were not questioned in their cross-examination and therefore, their evidence adduced towards the proof of Ex.B2 Will, cannot also be suspected. He would also submit that the evidence given by DW4 that the Will which cannot be revoked would be a settlement deed, cannot hold water, since he was not an authority to say so. He would also submit that the construction of the Will have been spoken by the scribe DW4, who is the best witness to explain the same, however, the 1st appellate court had shown the reasons for the gaps left in each of the pages would not be accepted. He would further submit that since Ex.B2 was the Will does not require compulsory registration and its genuineness is doubted merely because it was an unregistered document. He would also cite a judgment of the Hon'ble Apex Court reported in 2002 (1) MLJ 200 (SC) (Mauleshwar Mani and others v. Jagdish Prasad and others) for the principle that the entire construction of the Will has to be read for deciding the character of the said document as a Will.16. He would also cite a judgment of this Court reported in 2002 (3) MLJ 667 (T.N.Krishna Pillai v. K.Nallaperumal) for the principle that in a case of a Will, the last intention of the testator would be given effect to. Relying uponthe said judgment, he would argue that the intention of the testator was to give benefit to her husband through the said Will and therefore, the character of Ex.B2 cannot be questioned.He would rely upon a judgment of the Hon'ble Apex Court reported in 2007 (1) MLJ 25 (SC) (Sadhu Singh v. Gurdwara Sahib Narike and others) for the same principle. He would also cite a judgment of this Court reported in 1997 (3) LW 673 (Govindan Chettiar etc., v. Akilandam alias Seethalakshmi and 24 others) for the principle that the scribe can be treated as an attesting witness. He would also cite a judgment of this Court reported in 1994 (1) MLJ 216 (M.S.P.Rajesh v.M.S.P.Raja and others) for the principle that no Will can be doubted merely on the fact that the Will was not a registered document. He would further submit that the properties were admittedly belonged to Manikathammal and she had executed the Will under Ex.B2 and it was properly proved before the trial court and the judgment and decree passed by the trial court on the basis of the evidence was considered to be in accordance with law butthe said judgmentof the trial court has not been affirmed but reversed by the 1st appellate Court which cannot be a correct finding. He would also submit that the 1st appellate court had interfered in the well considered judgment passed by the trial court and the 1st appellate court had also come to the reversal of the trial court's judgment, which have not been warranted. The appellants / defendants have filed the suit which was also dismissed by the 1st appellate court. He would also submit that when the Will was found to have been proved automatically, the defendants would get at the property through the deceased Ponnusamy, the husband of Manikathammal. He would therefore, request the Court to set aside the judgment and decree passed by the 1st appellate court in reversing the judgment of the trial court.17. The learned counsel for the respondents/plaintiffs would submit in his argument that admittedly, the suit properties in O.S.No.557 of 1993 devolve upon Manikathammal from her mother and apart from the said properties, she also got the properties purchased in her name by her husband but the properties derived by her from her mother were alone shown in the Will. He would further submit in his argument that the Will was an unregistered one. The Will said to have been executed by the testatrix Manikathammal on 17.01.1989 was stated to have come into force on the death of Manikathammal, in the year 1989. If really, the Will was a true document, the subsequent sale effected by her husband Ponnusamy to some other third party on 04.09.1992 by Ex.A19 equivalent to Ex.B10 would have a reference about the devolution of the said property through Ex.B2 Will. But the vendor Ponnusamy had referred the devolution of the property in his favour ancesterally. He would further submit that the said mention by the husband of Manikathammal in Ex.A19 as ancestral property would go to show that there was no existence of the Will at the time of Ex.A19. He would further submit in his argument that the non-registration of the Will would increase the gravity of the suspicious circumstances of the said Will. He would also submit that if really a Will was a true and genuine document, the derivation of the property by the vendor Ponnusamy ought to have been mentioned as he derived the said property through the Will executed by Manikathammal. He would further submit that the said suspicion would enlarge further on the contradictory evidence given by the attestor as well as the scribe while they were examined DW2 to DW4. He would also point out certain discrepancies in their evidence and had drawn the support from the judgment of the 1st appellate court in mentioning the said contradiction. He would also submit that the Will said to have been executed by Manikathammal could be a concocted one since the properties purchased in the name of Manikathammal were not included in the said Will. He would also submit that the evidence of DWs would go to show the right in the properties mentioned in the Will meant to have obtained by the beneficiary Ponnusamy on the date of execution of the Will itself and this would go to show that the said document Ex.B2 was not considered to be a Will since the right at presently were stated to have been created. He would also submit that the said Will was containing 5 pages in which the testatrix was stated to have put her thumb impression in all the pages but the evidence of DWs 2 to 4 are contradictory regarding the total pages of the Will and this would go to show that the Will was not a true and genuine document but was concocted by the defendant's husband and the witnesses. He would also submit that when the Will was not considered to be a true document, the properties belonging to Manikathammal should be distributed among her legal representatives underSection 15of the Hindu Succession Act. The suit properties were admittedly belonged to the mother of Manikathammal and she derived from her mother only and therefore, it would not devolve upon the heirs mentioned underSection 15(1)of the Act since she had no children. He would also submit that the husband Ponnusamy was also excluded from inheriting the property from his wife. Since the properties were obtained by her from her mother,the devolution would be only upon the heirs of Manikathammal underSection 15(2) (a)of the Act, namely the heirs of the mother of Manikathammal. The plaintiffs who are the heirs of Manikathammal underSection 15(2)(a)of the Act would get at the properties in the absence of any testament validly executed by Manikathammal. He would draw the attention of the Court to various judgments of this Court, Karnataka High Court and Hon'ble Apex Court. He had cited a judgment of this Court reported in 1998 (2) LW 744 (Mookayi Ammal and 3 others v. Duraisamy Udayar and 2 others) for the principle that the Court had to consider the surrounding circumstances, while appraising the evidence of the attestors when the legal heirs of the testatrix through intestate succession were disinherited by virtue of the bequeaths made in the Will.He would also bring it to the notice of this Court to a judgment of the Hon'ble Apex Court reported in 1997 (2) LW 686 (Kartar Kaur and another v. Milkho and others) for the principle regarding the duty of the propounder to dispel the suspicious circumstances. He would also bring it to the notice of this Court in respect of a judgment of this Court reported in 1997 (3) LW 673 (Govindan Chettiar etc., v. Akilandam alias Seethalakshmi and 24 others) for the principle that the scribe would not be treated as an attesting witness to prove the said Will.He would also cite a judgment of Delhi High Court reported in AIR 1988 Delhi 273 (Dinesh Kumar v. Khazan Singh and others) for the principle that the propounder has to prove the genuineness and satisfy the conscience of the Court regarding the truth and genuineness of the Will.Yet another judgment of this Court reported in 2002 (3) MLJ 667 (T.N.Krishna Pillai v. K.Nallaperumal) was also relied upon by the counsel for the respondents for the principle that the last intention of the testator has to be considered for perceiving the testators intention. For relying upon the said principle, he would submit that the Ex.B3 would be considered as irrevocable document and it would not be a Will.He would also quote the judgment of this Court reported in 2002 (1) MLJ 116 (Gangammal and others v. Mari Moopan and others) for the principle that when any suspicious circumstances clouded the attestation and execution of the Will, the propounder of the Will has to dispel such suspicious circumstances. Relying upon the said principle, he would submit that the defendants have not cleared the suspicious circumstances cast upon the Will Ex.B2 in order to show that it is a genuine document. He would also rely upon a judgment of Karnataka High Court reported in AIR 1982 Karnataka 198 (T.M.Channabasamma dead by L.Rs., and others v. T.M.Rudriah, dead by L.Rs, and others) for the same principle. He would also submit in his argument that the Will could not be considered as a true and genuine document and if the Will is not found to be true, the plaintiffs would be the legal heirs of the deceased Manikathammal and the defendants would not get any property under the guise of the Will.He would also cite a judgment of the Hon'ble Apex Court reported in 2003 (4) CTC 122 (SC) (V.Dandapani Chettiar v. Balasubramanian Chettiar(dead) by LRs. and others) for the principle that the character of the property derived from the mother would not be changed merely because any partition has intervened in between the co-owners. He would also submit that the partition had by Manikathammal with her sister, after the death of her mother would not in any way change the character of the property that she had inherited from her mother and therefore, the suit properties which are admittedly the properties inherited by Manikathammal would devolve upon her mother's heirs namely the plaintiffs, since the Will said to have been executed by Manikathammal was not a true and genuine document. He would therefore, request the Court that the judgment and decree passed by the 1st appellate Court are in accordance with law and they are not liable to be interfered. He would also submit that the two appeals filed by the appellants have no legs to stand and therefore, may be dismissed with costs.18. I have given anxious thoughts to the arguments advanced on either side.19. The suit in O.S.No.557 of 1993 was filed by the plaintiffs seeking for a declaration that the suit 'A' and 'B' schedule properties are belonging to the plaintiffs 2 and 3 and the plaintiffs possession and enjoyment in respect of the suit properties should not be disturbed by the defendant or their men or agents. The 2nd defendant in O.S.No.557 of 1993 had also filed a suit in O.S.No.894 of 1994 against the 3rd plaintiff in O.S.No.557 of 1993 seeking for permanent injunction against the defendant (3rd plaintiff in this suit) or his men from interfering with the plaintiffs (2nd defendant in this suit) possession and enjoyment of the suit properties and also for costs. The suit properties in O.S.No.557 of 1993 are the same as in O.S.No.894 of 1994. The relationship in between parties namely, the 1st plaintiff was the sister of Manikathammal and Nallammal who were of the daughter of one Valliammai and the 3rd plaintiff Kannusamy was the son of 1st plaintiff Chinnammal and the 2nd plaintiff was the son of Nallammal. The case of the plaintiff is that the said Manikammal was given in marriage to Ponnusamy at Kandiratheertham and was living with the said Ponnusamy, the 1st defendant and they had no issues through the wedlock. The case of the defendant that the 2nd defendant was married to the 1st defendant even during the life time of Manikathammal which was also not seriously disputed by the plaintiffs. It was also not disputed that the 3rd defendant was the son and the 2nd defendant's brother namely Nallathambi. The further case of the plaintiffs is that the suit properties originally belonged to one Rangasamy and on his death, his wife Valliammai and daughters Nallammal, Chinnammal and Manikathammal who inherited those properties and thereafter, the mother Valliammai died in the year 1959 leaving three daughters namely, Nallammal and Chinnammal and Manikathammal as her heirs underHindu Succession Act, 1956and they are equally entitled to 1/3rd share in the suit properties and they have also partitioned their properties and in the said partition, the said Manikathammal got the suit properties which was also not seriously disputed. Therefore, it is clear from the case of both parties that the suit properties were belonging to Manikathammal and she was the owner of the said properties. The evidence adduced in this case would also go to show that the 1st defendant had also purchased certain other properties in the name of Manikathammal at Kanditheertham and the said property was also enjoyed by the said Manikathammal.20. The case of the plaintiffs that the said Manikathammal died subsequently without any issues and the properties being inherited by her from her father via mother in the year 1959, along with other heirs of her mother as per the provisions ofHindu Succession Act, has been denied by the defendants. Therefore, the plaintiffs have filed the suit for declaration. The defendants stand would be that the said Manikathammal was no doubt the owner of the property but she had executed an unregistered Will on 17.01.1989 in a sound and disposing state of mind, in the presence of two attestors in respect of the suit properties in favour of her husband Ponnusamy(1st defendant) and the said Will came into force on the death of Manikathammal in the year 1989. The further case of the defendant would be that since the said Will came into force and the Will was acted upon by selling one of the suit properties by the 1st defendant through Ex.B10, the plaintiffs would not get any right in the suit properties. The further case of the defendant would be that even otherwise, the Will is not true, the suit properties inherited by Manikathammal, cannot be treated as the properties inherited from her mother or father, since the said properties were subsequently divided through a partition between the sisters and therefore, the property would be deemed as the exclusive properties of Manikathammal. Therefore, the defendants claim that the 1st defendant would get at the property as per the provisions ofSection 15(1)(a)of the Act and hence, the defendants would pray that the suit has to be dismissed.21. The trial court had dismissed the suit filed by the plaintiffs and decreed the suit filed by the defendant in O.S.No.894 of 1994 without costs. For that, it had come to the conclusion that the Will produced in Ex.B2 was proved to have been executed by Manikathammal in a sound and disposing state of mind in the presence of attesting witnesses, after relying upon the evidence of DW2 to DW4, the attestors and scribe. The 1st appellate court, on appeal by the plaintiffs, had reversedthe said judgmentand had come to the conclusion that the Will was not a true document and the plaintiffs are entitled to inherit the suit properties as legal representatives of the deceased Manikathammal underSection 15(2)of the Act. While decreeing the suit of the plaintiffs, the 1st appellate court had dismissed the suit filed by the 2nd defendant filed against the 3rd plaintiff.22. We have to consider the arguments advanced on either side and to decide whether the 1st appellate court is right in reversing the judgment of the trial court in both the suits.23. As discussed earlier, the suit properties were obtained by Manikathammal from her mother through a partition had in between her sisters. The case of the defendant would be that she has executed a Will in favour of the 1st defendant however, it has been contended by the plaintiff that it has been a concocted Will. The arguments advanced was that if really the Will was in existence in an unregistered stage and the property has been derived by the 1st defendant through the said Will that should have been found a place in a subsequent sale deed executed by the 1st defendant, in respect of one of the suit properties in Ex.A19 = Ex.B10. No doubt, the Will dated 17.01.1989 was said to have acted upon on the death of Manikathammal in the year 1989 itself. Therefore, the 1st defendant, who was the husband of Manikathammal, if really derived the said property through the Will ought to have mentioned the way of devolution as he got through the Will Ex.B2 in Ex.A19. Ex.A19 is a document subsequent to the Will i.e. On 04.09.1992. On a careful perusal of the said document, I could see that the devolution of the said property was said to have obtained by him ancestrally. There was no reference as to the devolution of the property through the Will dated 17.09.1989 (i.e.) Ex.B2. In the back drop of this circumstance, if we approach the proof of execution of the Will, I could see that the evidence on DW2 and DW3 the attestors, are very important witnesses for deciding the case. According to the submission of the learned counsel for the appellants/plaintiffs, their evidence were untrustworthy because they have spoken much controversy in their evidence. However, the learned counsel for the respondents/defendants would submit that such contradictions were related to some other aspects and there was nothing contradictory in respect of attestation and execution of the Will. When we go through the evidence, I could see that DW2, one of the attestors would speak in his cross-examination that the properties were left by the testatrix to the 1st defendant on the date of execution of the Will itself and the properties in Kanditheertham was also bequeathed by the said Manikathammal in favour of the 1st defendant. Apart from that, he would state that he had seen the testatrix put her signature in 3rd page and he did not know about putting the thumb impression in other pages. He would categorically assert that Manikathammal put her thumb impression in two or three pages in the Will, whereas another attestor DW3 would state in his evidence that he did not know in, how many pages Manikathammal put her thumb impression while executing the Will. DW3 would further admit in his cross-examination that Manikathammal put her thumb impression in 4 papers and on putting the thumb impression in 4th page she put her signature in the Will. He had also spoken to the effect that the Will was executed in respect of all of her properties. DW3 had also admitted that the property at Kanditheertham was not included in the Will. When the evidence of DW2 and DW3 were considered in the light of the evidence of the scribe examined as DW4, I could see that the Will has got 5 pages and in all 5 pages, the said Manikathammal was said to have put her thumb impression. The evidence of DW2 and DW3 are not quite correct with the evidence of DW4 and the actual pages of the Will in Ex.B2. DW4 scribe would say that the said Manikathammal had expressed her intention not to cancel the Will and DW4 had also written the same in the Will.DW4 had also admitted that such references, was a mistake but in the said Will, it has been incorporated. Whether the evidence adduced by the defendant would show any proof in respect of Ex.B2 Will as a genuine document. On the basis of the said admission given by DW4, the Will cannot be considered as a settlement deed. For that, the judgment of Hon'ble Apex Court reported in 2002 (1) MLJ 200 (SC) (Mauleshwar Mani and others v. Jagdish Prasad and others) was relied upon. The relevant passage would run as follows:-"6. The first and the second question are overlapping and, we shall, therefore, consider both the questions together. Ordinarily, the rule of construction of a Will is that a Will (bequeath) has to be read in its entirety and effort should be made that no part of its excluded or made redundant. In other words, it is the duty of the Court to reconcile if there is any apparent inconsistency in a Will.InRadha Sundar Dutta v. Mohd. Jahadur Rahim and others, 1959 S.C.R. 1309, it was held that if there be admissible two constructions of a document, one of which will give effect to all the clauses therein while the other will render one more of them nugatory, it is the former that should be adopted on the principle expressed in the maxim 'ut res magis uaieat quam pereat'."24. Yet another judgment of the Hon'ble Apex Court reported in 2007 (1) MLJ 25 (SC) (Sadhu Singh v. Gurdwara Sahib Narike and others) has been relied upon for the principle that the later clause of the Will only be relied upon."20. .......... Thus on reconciling the various clauses in the Will and the destination for the properties that the testator had in mind, we have no hesitation in coming to the conclusion that the apparent absolute estate in favour of Isher Kaur has to be cut down to a life estate so as to accommodate the estate conferred on the nephews."25. There is no doubt that in a Will, the later clause will prevail. On a careful perusal of Ex.B2, it has been mentioned as follows:-"Mdhy; vf;fhuzj;ijf; bfhz;Lk; ,e;j capiy khw;Wtjw;fpy;iy "26. Similarly yet another sentences in the Will has been referred to for the purpose of finding the character of the said document namely
" tptfhu';fs; Vw;glhky; ,Uf;Fk; bghUl;Lk; moapy; fz;l brhj;Jf;fis ey;yKiwapy; ,d;Wk; mila ntz;Lk; vd;W Xh; Vw;ghL ,e;j capy; gj;jpuk; K:yk; vGjp itj;Js;nsd; "27. According to the submission of the learned counsel for the respondent, the rights of the suit properties were intended to be transferred in praesenti and right of revocability was not reserved by the testatrix even though, she has stated in the earlier sentence as so and therefore, the said Will, even if true, could not be treated as a Will. His further contention would be that if really, the right in the property has been transferred in praesenti on the date of execution of Ex.B2, it should be considered as a settlement deed executed in favour of the 1st defendant but the settlement requires some other duty and it should compulsorily a registrable document and therefore, it cannot be received in evidence. The said argument advanced by the learned counsel for the plaintiffs are in consonance with the principles of law. The evidence of DWs 2 to 4, in respect of the execution of the Will even though spoken about the attestation of the testatrix execution but they were not considered to be reliable because, serious contradictions were made in respect of the pages on which the testatrix had put her thumb impression. The said contradiction could have been considered as immaterial in the event, the Will was a registered one. Even if an unregistered Will could have been relied upon, if it was referred to in the subsequent documents executed by the parties concerned. In Ex.A19 = Ex.B10, a sale deed executed by the 1st defendant in favour of 3rd party in respect of one of the suit properties, which is clearly after the said Will came into force, he did not refer, but the devolution to the property was stated to have got ancestrally. But it would go to show that there was no Will prior to the execution of Ex.A19 and therefore, the 1st defendant had stated that he got the property ancestrally. The said circumstances were not explained by the 2nd defendant who was examined as DW1.28. It is an admitted fact that the 2nd defendant was married even during the life time of Manikathammal and she is also claiming the property as one of the legal representative of the deceased 1st defendant, which is not in accordance with law. The various judgments cited by the learned counsel for the defendants reported in 2010 (13) SCC 147, 1997 (3) LW 673 are not applicable to the facts of the case. There is no reference to the plaintiffs who are the legal representatives of the deceased testatrix but for the Will. The Sub-Registrar Office is stated to have been housed at Keel Pallathur and there was no reason for not registering the Will immediately after its execution. The non-inclusion of her house property at Kandiratheertham was also not explained in the evidence of DW1. On the other hand the witnesses DW2 and DW3 would state that the kandiratheertham property was also included in the Will and it was spoken to by the testatrix. There are several items of suit properties numbering more than 10 and it was the evidence of DWs that the Will was constructed by Manikathammal without any pariculars in her hand or going through the documents and any papers regarding description of the properties. These circumstances, would create suspicious circumstances and those circumstances were not cleared through the evidence of attestors and scribe. No doubt, the Will is a solemn document, to which, the person executed cannot come to Court to speak about its genuineness. Therefore, the Courts are very much anxious with the evidence adduced by the attestors as well as scribes who are said to have been connected in the Will. The evidence adduced by DWs 2 to 4 are not trust worthy and they are not helpful to clear the suspicious circumstances cast upon the execution of the Will and their evidence are not satisfactory. Therefore, the principlelaid down inthe judgment of this Court reported in 1994 (1) MLJ 216 (M.S.P.Rajesh v.M.S.P.Raja and others) cannot be made applicable to the present facts of the case. When the registration was possible, it was not done. Moreover, the evidence of DWs 2 to 4 are not reliable to prove the attestation and execution of Ex.B2 and therefore, the principlelaid down inthe said judgments are also not applicable.29. The learned counsel for the plaintiffs had submitted catena of Judgments of this Court reported in 1998 (2) LW 744 (Mookayi Ammal and 3 others v. Duraisamy Udayar and 2 others) in which, it has been categorically laid down as follows:-"7. ..... A Will is a solemn document exected by a person whereby he bequeathes his properties with intent to come into effect after his death. It is always revocable at the violation of the executant. It is optionally regiterable. In Ex.B-8, a right in praesenti is created and it further declares that the executant will have no right to cancel the same. These two stipulations in the deed create a doubt in the mind of the court, whether the document is a testamentary disposition or not."30. He would also cite yet another judgment of this Court reported in 1997 (2) LW 686 (Kartar Kaur and another v. Milkho and others), which would runs as follows:-"13. ... Having executed the Will, why did he execute sale deeds in favour of second respondent, a minor ? Why did he not make a reference to the registered Will in the sale deeds subsequently executed ? These are all tale crucial circumstance casting unchangeable clouds hovering around the genuineness of the Will and the burden is always on the propounder to explain and prove to satisfy the conscience of the Court but miserably failed to do so.""18. In the light of the settled principles, we have carefully gone through the evidence and we find that the trial court was justified in doubting the genuineness of the Will and rendering a finding that propounder has not dispelled the suspicious circumstances beyond reasonable doubt. The lower Appellate Court while reversing the judgment of the trial court has simply overlooked or ignored many important aspects dealt with by the trial court. Unfortunately, the High Court without going through the matter dismissed the Second Appeal in two words."31. Those judgments would go to show much volume about the dispelling of the suspicious circumstances beyond reasonable doubt, the failure of which would make the Will unreliable. In this case, the defendants who were the propounders of the Will Ex.B2 had failed to explain the suspicious circumstances and therefore, the evidence of DWs 2 to 4 should have been adduced before the Court as interested witnesses in connivance with the 1st defendant. The contradiction in respect of putting the thumb impression by the testatrix would speak volume about the falsity of their evidence. The 1st appellate court had categorically come to a conclusion that the lower Court failed to understand the case and thus, dismissed the suit in O.S.No.557 of 1993 and decreed the suit in O.S.No.894 of 1994 and thus reversed the findings in both the appeals. The reasons put forth by the 1st appellate court are in consonance with the principleslaid down bythe Hon'ble Apex Court.32. A fag attempt was made by the learned counsel for the appellants/defendants that the properties obtained by Manikathammal had lost its character as inherited by her from her mother so as to get the benefit ofSection 15 (2) (a)of the Act by virtue of getting the said properties through a partition in between her sisters. For that, the learned counsel for the appellant would cite a judgment of the Hon'ble Apex Court reported in 2008 (7) SCC 46 (Hardeo Rai v. Sakuntala Devi and others) in support of his argument. The relevant passage would run thus:-"22. For the purpose of assigning one's interest in the property, it was not necessary that partition by metes and bounds amongst the coparceners must take place. When an intention is expressed to partition the coparcenary property, the share of each of the coparceners becomes clear and ascertainable. Once the share of a coparcener is determined, it ceases to be a coparcenary property. The parties in such an event would not possess the property as "joint tenants" but as "tenants-in-common". The decision of this Court in SBI, therefore, is not applicable to the present case.23.Where a coparcener takes definite share in the property, he is owner of that share and as such he can alienate the same by sale or mortgage in the same manner as he can dispose of his separate property. "33. However, the learned counsel for the respondents/ plaintiffs would cite a judgment of the Hon'ble Apex Court reported in 2003 (4) CTC 122 (SC) (V.Dandapani Chettiar v. Balasubramanian Chettiar(dead) by LRs. and others) in support of his argument that the character of the property inherited by a person from the mother or father will not lose his character merely because it was partitioned between the co-owners or through a compromise decree. The relevant passage would run thus:"17. It will be seen from the facts of the present case thath Rajathiammal ahd inherited the property from her mother, the section applicable will beSection 15(2)of the Act, according to which the properties will go to the heirs of her father and, therefore, the plaintiff/applicant and defendants 2 - 9 / respondents 2-9 who are the sons and daughters of Rajathiammal's father, Venugopal Chettiar, through his third wife Negalakshmi would be entitled to the suit properties. Therefore, the case put forward by the first defendant and other contesting defendants that Rajathiammal inherited the properties not from her mother but also from her grand-mother and great grand-mother, and, therefore,Section 15(1)of the Act would only apply cannot at all be countenanced.18. In the instant case, Rajathiammal acquired her rights by virtue of compromise which is a reiteration and a declaration of her pre-existing right. Therefore, on the death of Rajathiammal who died intestate and issueless, the suit properties devolved upon the heirs of her father, Venugopal Chettiar. The present plaintiff/appellant, V.Dandapani Chettiar, who is the son of the father of Rajathiammal through his third wife and respondents 2-9 and 23 who are children of the father of Rajathiammal and one of his wives becomes the heirs and entitled to succeed underSection 15(2)(a)of the Act since the properties came to Rajathiammal under the compromise decree amounts to a declaration of her pre-existing right under the compromise decree passed by the Courts."34. On a careful understanding of the aforesaid judgment of the Hon'ble Apex Court, I could see that the suit properties were obtained by Manikathammal through a partition in between her sisters after the death of her mother Valliammai in the year 1959, who got it from her husband Rangasamy. The said property was not a coparcenary property but was the property belonged to her mother.In the case discussed by the Hon'ble Apex Court reported in 2008 (7) SCC 46 (Hardeo Rai v. Sakuntala Devi and others), the co-parcenary properties were found to have lost their character on entering into a partition between the co-sharers whereas this property being the exclusive property of mother was divided among the daughters will not lose its character so as to deprive the right underSection 15 (2)of Hindu Succession Act.It is very clearly mentioned in the judgment of the Hon'ble Apex Court reported in 2003 (4) CTC 122 (SC) (V.Dandapani Chettiar v. Balasubramanian Chettiar(dead) by LRs. and others) that the character of the property obtained from mother would be a reiteration and declaration of her pre-existing right even after, partition or a compromise decree. Therefore, the said arguments advanced on the side of the appellants/defendants that the property lost its character as derived from father or mother so as to attractSection 15(2)of the Act is not acceptable. Having found that the Will in Ex.B2 was not true, genuine and valid document, the suit property should have devolved in accordance with the provisions ofSection 15of the Act. On the death of Manikathammal in the year 1989, she had no issues and therefore, her husband would be only the heir as perSection 15(1) (a)of the Act. It has been already found that the property was inherited by Manikathammal from her mother and therefore,Section 15 (2) (a)alone is applicable for this case. For better understanding and appreciation,Section 15(2) (a)has to be extracted hereunder.:"15(2) (a) Any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter), not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and"35. As perSection 15 (2) (a)in the absence of any issues, son and daughter, the mother or father's heir will take away the property as the heirs of the deceased. It is not disputed that the 1st plaintiff was the sister of Manikathammal and 2nd plaintiff was the son of Nallammal, another sister and 3rd plaintiff was the son of another deceased sister Chinnammal. Therefore, the plaintiffs would be the heirs of Manikathammal to inherit the suit properties as per the provisions ofSection 15(2) (a)of the Act, since the alleged Will produced in Ex.B2 was not found to be a true, genuine and valid document. Therefore, all these legal principles were followed by the 1st appellate court and it had come to the conclusion of reversing the judgment of the trial court made in both the suits. The judgment and decrees passed by the trial court are certainly liable to be interfered and the 1st appellate court had rightly interfered inthe said judgmentand decree passed by the trial court and therefore, the judgment and decree passed by the 1st appellate court are not liable to be interfered.36. For the foregoing discussion, I am of the considered view that the 1st appellate court had correctly perceived the evidence and followed the principles and had come to the conclusion of interfering with the judgments and decrees passed by the trial court in O.S.No.557 of 1993 and O.S.No.894 of 1994 and therefore, they are not liable to be interfered.37. The questions of law framed are therefore, not decided in favour of the appellants.38. In fine, I am of the considered view that both the second appeals are not having any merits and therefore, they are liable to be dismissed. Accordingly, both the second appeals are dismissed. No costs.27.04.2012
Index:Yes/No
Internet:Yes/No
ssn
V.PERIYA KARUPPIAH, J.,
ssn
To1. The Principal District Judge, Perambalur2. The District Munsif Court, Perambalur
Pre-delivery Judgment in
S.A.Nos.24 and 25 of 2004
27.04.2012 |
e1d0611a-4934-5d29-8505-d8805e9a64ff | court_cases | Central Information CommissionShri Rajinder Singh vs Post Graduate Institute Of Medical ... on 29 July, 2008CENTRAL INFORMATION COMMISSION
Appeal No CIC/WB/A/2007/00660 dated 14.05.2007Right to Information Act2005-Section 19Appellant: Shri Rajinder Singh
Respondent: Post Graduate Institute of Medical Education and Research,(PGIMER) Chandigarh
Decision
The Commission has received an appeal from Shri Rajinder Singh of
Mohali Punjab, praying as follows:"Kindly instruct the PGI authorities to supply the required
information to me and also take appropriate action against the
concerned officials for violating the provisions of theRTI Act."Because the 1st appellate authority has not addressed the questions of
appellant, which are of direct concern to his public authority and because
appellant has pleaded no ground for making a direct complaint to usu/s 18 (1)(e), the Commission has decided to treat this application as 1st appeal and
remand this appeal to Prof. V.K. Sakhuja, Appellate Authority, PGIMER,
Chandigarh, who is directed to dispose of the appeal of Shri Rajinder Singh
within ten working days from the date of receipt of this decision, under
intimation to Shri Pankaj Shreyaskar, Jt Registrar, Central Information
Commission.We also find from a perusal of the record that the application was made on
19.01.'07 and a response has gone from CPIO Shri Hansraj Sharma PGIMER,
on 05.02.'07, i.e. within the time limit mandated by Sec 7 sub-section (1). There
is therefore no further cause of action on this account
If not satisfied with the information provided on his 1st appeal, complainant
Shri Rajinder Singh will be free to move a 2nd appeal before us as per Sec 19 (3).1Announced in open chamber on 29.7.'08. Notice of this decision be given free of
cost to the parties.(Wajahat Habibullah)
Chief Information Commissioner)
29.07.'08
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.(PK Shreyaskar)
Jt. Registrar
29.07.20082 |
7fab2005-08b1-5eb0-a81c-b6a08440b16d | court_cases | Gujarat High CourtKarimbhai vs State on 5 July, 2012Author:Anant S. DaveBench:Anant S. DaveGujarat High Court Case Information System
Print
SCA/3670/2012 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3670 of 2012
=========================================================
KARIMBHAI
HAJIBHAI NOTIYAR THRO BROTHER SHAHBUDDIN HAJIBH - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance :
MS
JAYSHREE C BHATT for
Petitioner(s) : 1,
MS MAITHILI MEHTA, ASST. GOVERNMENT PLEADER for
Respondent(s) : 1, 3,
RULE SERVED BY DS for Respondent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 05/07/2012
ORAL
ORDERThis
petition is directed against the order of detention dated 15.02.2012
passed by respondent No.2,
in exercise of powers conferred underSection 3(1)of the Gujarat
Prevention of Anti Social Activities Act, 1985 (in short" the
Act) by detaining the detenue as a "cruel person" as
defined underSection 2(bbb)of the Act.Learned
advocate for the detenue submits that the registered case under thePrevention of Cruelty to Animals Act, 1960, would not indicate
anything to support disturbance to public order nor have the
activities of the detenue affected adversely the maintenance of
public order and, therefore, the order of detention passed by the
detaining authority cannot be sustained in law and is required to be
quashed and set aside.Learned
Assistant Government Pleader Ms. Maithili Mehta has opposed the
petition and supported the order of detention in letter and spirit.Having
heard the learned Counsels for the parties, on perusal of record,
considering the definition of 'cruel person' "means a
person who either by himself or as member or leader of a gang
habitually commits or attempts to commit, abets the commission of an
offence punishable underSection 8of the Bombay Animal Preservation
Act, 1954" contained inSection 2(bbb)of the PASA Act and
the law laid down by the Apex Court in the case ofGopalanachari
vs. State of Kerala, reported in AIR 1981 SC 674,
where the Apex Court considered and reiterated the law on personal
liberty vis-a-vis rule of law and procedure contemplated inArticle
21of the Constitution of India which means fair and not formal
procedure andArticle 22which specifically spells out the
procedural safeguards for preventive and punitive detentions and a
law providing for such detention should conform toArticle 22of the
Constitution of India, while referring to the decisions of the Apex
Court in the case of Maneka Gandhi reported in (1978)
1 SCC 248 and in the case of Hoskot reported
in (1978) 3 SCC 544, and as held by the learned Single
Judge of this Court vide Oral Judgment dated 21.2.2005, in Special
Civil Application No.15105 of 2004 [Iliyas Mohammad hi vs.
Commissioner of Police], and keeping in mind the object of
detention law being prevention and not punishment, this Court is of
the opinion that the activities of the detenue cannot be said to be
adversely affecting the maintenance of public order and at the most
fall under the maintenance of "law and order". Hence,
the subjective satisfaction arrived at by the detaining authority is
vitiated.In
the result, the petition is allowed. The order of detention dated
15.02.2012 is quashed and set aside, if not revoked. The detenue, is
ordered to be set at liberty forthwith, if not required in
connection with any other case. Rule is made absolute, accordingly.
Direct Service is permitted.Sd/-(Anant
S. Dave, J.)
CarolineTop |
39546a2c-5d1e-57b6-857c-ae8107e582d8 | court_cases | Income Tax Appellate Tribunal - AhmedabadShiv Krupa Tin Containers, vs Assessee on 9 June, 2016आयकर अपील
य अ धकरण, अहमदाबाद यायपीठ 'सी', अहमदाबाद ।
IN THE INCOME TAX APPELLATE TRIBUNAL
" C " BENCH, AHMEDABAD
सव ी राजपाल यादव, या यक सद य एवं अ नल चतव
ु द , लेखा सद य के सम ।
BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER
And SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER
आयकर अपील सं./I.T.A.No.136/Ahd/2016
( नधा रण वष / Assessment Year : 2010-11)
M/s. Shiv Krupa Tin बनाम/ The ITO
Containers Vs. SK Ward-1
At Boriya Becharaji Himatnagar
Modasa Road
Taluka Talod - 383 215
थायी ले खा सं . /जीआइआर सं . / PAN/GIR No. : ABPFS 9958 P
(अपीलाथ& /Appellant) .. ('(यथ& / Respondent)
अपीलाथ& ओर से / Appellant by : Shri N.C. Amin, AR
'(यथ& क* ओर से/Respondent by : Shri B.P.K. Panda, Sr.DR
ु वाई क* तार ख /
सन Date of Hearing 31/05/2016
घोषणा क* तार ख /Date of Pronounce ment 09/06/2016
आदे श / O R D E R
PER SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER :This appeal by the Assessee is directed against the order of the
Commissioner of Income Tax(Appeals)-2, Ahmedabad dated
03/12/2015 for the assessment year 2010-11.ITA No.136/Ahd/2016M/s. Shiv Krupa Tin Containers vs. ITO
Asst.Year - 2010-11-2-2. The relevant facts as culled out from the materials on record are as
under:-2.1. Assessee is a partnership-firm stated to be engaged in the business
of manufacturing and trading of Tins and its job-work. Assessee
electronically filed its return of income for AY 2010-11 on 24/09/2010
declaring total income of Rs.95,980/-. The case was selected for scrutiny
and thereafter assessment was framedu/s.143(3)of the Income Tax Act,
1961 (hereinafter referred to as "the Act) on 07/03/2013 and the total
income was determined at Rs.7,95,620/-. Aggrieved by the order of
Assessing Officer (AO), assessee carried the matter before ld.CIT(A)
who vide order dated 03/12/2015 (in Appeal No.CIT(A)-VIII/49/SK
Wd.1 HMT/2013-14 and now CIT(A)-2/20/SK Wd.1, HMT/2013-14)
dismissed the appeal of the assessee. Aggrieved by the order of
ld.CIT(A), assessee is now in appeal before us and has raised following
effective grounds:-1. That the CIT(A)-2 Ahmedabad has erred both in law and on the
facts of the case in confirming an addition of Disallowance of
Expensesu/s.40(A)(3)of Rs.2,49,497/-.2. That the learned CIT(A)-2 has further erred and confirming of
an addition of Rs.4,45,625/- made by learned A.O. u/s.40(a)(ia)
of theIncome Tax Act, 1961. Even though Amendment was made
byFinance Act, 2012under Second proviso tosection 40(a)(ia)is retrospective and considering the same this ground. Please be
decide on merits.ITA No.136/Ahd/2016M/s. Shiv Krupa Tin Containers vs. ITO
Asst.Year - 2010-11-3-2.2. First ground is with respect to disallowance of expensesu/s.40A(3)of the Act.2.3. During the course of assessment proceedings, on the basis of
details furnished by the assessee, AO noticed that the assessee had made
several cash payments to Gujarat Electricity Board (GEB) in respect of
electricity expenses. (the details of which are listed at page Nos.7 & 8 of
the assessment order), the aggregate of such cash payments aggregated
to Rs.2,49,497/-. The assessee was asked to explain as to why expenses
not be disallowedu/s.40A(3)to which assessee inter alia submitted that
the payments were made to GEB, a Government Organization and there
was no facility for acceptance of cheque in the village in which its
factory of the assessee is located. The submission of the assessee was
not found acceptable to the AO, in view of the fact that the assessee had
not placed any material on record to demonstrate that there was no
facility in the village to accept the cheques, assessee had not made out
case of unavoidable circumstances so as to claim the benefit Rule 6DD of
the Act. He accordingly disallowed the payments in excess of
Rs.20,000/- which aggregated to Rs.2,49,497/- u/s.40A(3) of the Act.
Aggrieved by the order of the AO, the assessee carried the matter before
ld.CIT(A) who upheld the order of the AO by holding as under:-"5.3. Decision:I have carefully considered the facts of the case, the assessment
order and the written submission of the appellant. The AO has made
disallowance undersection 40A(3)of the Act, as the appellant has madeITA No.136/Ahd/2016M/s. Shiv Krupa Tin Containers vs. ITO
Asst.Year - 2010-11-4-payment of part of the electricity expenses in cash. As per AO, the
appellant had made the payment of Rs.2,49,497/- to UGVCL / GEB for
electric expenses in cash which includes the payment of Rs.33,595/- to
M/s.Tanveer Enterprises for purchase of the old use cables. The AO
concluded that the appellant's plea that there was no facility in
accepting cheques in Boriya - Becharji Village for which the appellant
has not placed any evidence in support. The AO also observed that the
appellant has not been able to make out a case of unavoidable
circumstances so as to claim the benefit of Rule 6DD. Further held that
the payment made to GEB was not a payment to the government and
also did not submit that GEB did not accept the payments through
cheques and it was the compulsion to make the payments in cash.5.4. On the other side, the appellant submitted that these payments
were made to the GEB / UGVCL and their genuineness has not been
doubted. Thus, the liberal interpretation of the Rule 6DD has to be
construed. It also submitted that there was no facility in accepting
cheques in the village and in absence of the same, the appellant was
unable to run the factory.5.5. On a careful consideration of entire facts related to the issue, it
is noted that though the UGVCL is a Government company, it does not
mandatorily asks its customers to make payment by cash. The rule 6DD
provides an exception in cases where the payment has been made to a
government organization and the Rules prescribed in this behalf
requires payment in cash compulsorily. The appellant has failed to
establish such circumstance. It has not given any reasonable cause as
to why the payment was made in cash in spite of the fact that appellant
has a bank account from which all other expenses have been incurred.The Provisions ofsection 40A(3)are very clear and it provides specific
exception to the Provisions under Rule 6DD. The case of the appellant
is not covered under any of the exceptions provided in Rule 6DD. The
appellant is running a big business establishment and it also has bank
account at the place nearby. It could have obtained demand draft for
payment of electricity dues and accordingly made the payment in
compliance of the Provisions of Income tax Act. In the case of theITA No.136/Ahd/2016M/s. Shiv Krupa Tin Containers vs. ITO
Asst.Year - 2010-11-5-appellant, it has not furnished any documentary evidence in support of
its claim that it could not make the payment by local cheque.5.6. The appellant has relied upon the decision of Hon'ble ITAT,
Ahmedabad in the case of Navjivan Synthetics wherein the cash
payments to labours were made on Sunday i.e. Bank Holiday to avoid
labour problems. Further, the appellant also relied upon the judgment
of Hon'ble Cochin ITAT in the case of P.M. Abdul Razak, wherein the
payments to the small cultivators were made in cash who refused to get
payments by cross cheques. The facts and circumstances under which
payment made in the aforesaid cases are totally different from the facts
of the case, and hence, reliance is misplaced and accordingly the
decision of the honourable ITAT would not be applicable. It is also
mentioned that the aforesaid disallowance includes the cash payment to
M/s.Tanveer Enterprises of Rs.33,595/- which is also exceeding to
Rs.20,000/- and hence the same also attracts the disallowance.
Further, two bills of UGVCL amounting to Rs.17,975/- and Rs.2,077/-
were paid by the appellant on the same date i.e. 20/06/2009 to the
UGVCL which is the same party, hence, disallowance of two bills at a
time to the same party also attracts the provisions ofsection 40(a)(3)of
the I.T. Act. Accordingly, the case of the appellant is not covered by
any of the exceptions provided in Rule 6DD. The disallowance made by
the AO is accordingly upheld."2.3. Aggrieved by the order of ld.CIT(A), assessee is now in appeal
before us.3. Before us, ld.AR reiterated the submissions made before the AO
and ld.CIT(A) and further submitted that the AO has not disputed that the
payments made by the assessee is not for the purpose of business. He
further submitted that the payment was made to Electricity Company in
cash as there was no facility made by them to accept the payment inITA No.136/Ahd/2016M/s. Shiv Krupa Tin Containers vs. ITO
Asst.Year - 2010-11-6-cheque or draft. He further submitted that the primary object of enactingsection 40A(3)of the Act was to put a check on trading transactions to
avoid the liability to tax on income earned on such transactions. The
ld.AR submitted that while upholding the disallowanceu/s.40A(3),
there is no finding of ld.CIT(A) that as to whether each payment in a day
made by the assessee exceeded Rs.20,000/-. He further submitted that
provisions ofsection 40A(3)was intended with the objective of avoiding
tax evasion. He submitted that when the payments are genuine and are
made out of income from disclosed sources, no disallowanceu/s.40A(3)can be made.He further placed reliance on the judgement of Hon'ble
Gujarat High Court in the case ofAnupam Tele Services vs. ITOreported at (2014) 366 ITR 122 (Guj.).He also placed reliance on the
decision of Hon'ble Allahabad High Court in the case ofCIT vs.
Choudhary and Co.reported at (1996) 216 ITR (All). Ld.Sr.DR, on the
other hand, supported the orders of the AO and ld.CIT(A).4. We have heard the rival submissions, perused the material
available on record and gone through the orders of the authorities below.
The issue in the present ground is with respect to disallowanceu/s.40A(3)of the Act. It is an undisputed fact that assessee has made
cash payments for expenses and these payments have been made to
Electricity Company for the supply of Electricity. The payment of
Electricity was the purpose of business, the payee to whom the assesseeITA No.136/Ahd/2016M/s. Shiv Krupa Tin Containers vs. ITO
Asst.Year - 2010-11-7-has made the payment has not been doubted by the AO; meaning thereby
that the genuineness of payment and identity of the payee are not in
doubt.In such a situation, we find that the Hon'ble Jurisdictional High
Court in the case ofAnupam Tele Services vs. ITOreported at (2014)
366 ITR 122 (Guj.) has held that the paramount consideration ofsection
40A(3)is to curb and reduce the possibilities of black money transactions
and section does not eliminate considerations of business expediencies.
Before us, Revenue has not placed any contrary binding decision. In
view of the aforesaid facts and after placing reliance on the aforesaid
decision of Hon'ble Gujarat High Court, we are of the view that in the
present case the expenditure cannot be disallowed. Thus, this ground of
assessee is allowed.5. Second ground is in respect of disallowance madeu/s.40(a)(ia)of
the Act.5.1. During the course of assessment proceedings, the AO noticed that
the assessee made payment of interest to four parties listed at page Nos.2
and 3 of the assessment order, the aggregate interest payment being of
Rs.4,45,625/- on which the assessee had not deducted TDS. AO was of
the view that the expenditure is not allowableu/s.40(a)(ia)of the Act on
account of non-deduction of TDS. He accordingly disallowed the
aggregate payment of Rs.4,45,625/-. Aggrieved by the order of the AO,ITA No.136/Ahd/2016M/s. Shiv Krupa Tin Containers vs. ITO
Asst.Year - 2010-11-8-assessee carried the matter before the ld.CIT(A), who upheld the order
of the AO by holding as under:-"3.6. Decision:I have carefully considered the facts and submission of the
appellant. The AO has made the disallowance of the claim of interest
expenses of RS.4,45,625/- being in the nature of interest on loans taken
from different parties of which details are as under:-(i) Bajaj Finance Rs. 88,272/-
(ii) India Bulls Financial Services Ltd. Rs 65,135/-
(iii) Reliance Capital Rs.2,34,415/-
(iv) Reliance Finvest Ltd. Rs. 57,803/-Those are NBFCs from whom finance has been taken by the
appellant. There was the liability on the part of the appellant to make
the TDSu/s. 194Aof the I. T. Act on the interest payments, as the
interest payment was exceeding to the limits prescribedu/s. 194Aof the
I. T. Act, 1961. The AO observed that the reliance of the appellant on
the decision of Hon'ble Vishakhapatnam, ITAT in the case of Merylyn
Shipping and Transports, Vishkhapatnam, is not relevant due to
suspension of the said decision by the Hon'ble High Court of Andhra
Pradesh and thereafter, reversed the order of the ITAT vide Appeal in
ITTA No. 384 of 2012 dated 09/10/2012. Therefore, the decision of
Hon'ble ITAT was not applicable on the facts of the this case. Since, the
appellant had failed to make the TDS in respect of the liabilityu/s. 194Aof the I. T. Act, 1961 on the interest payment to NBFC and hence the
disallowance was made.3.7. On the other side, the appellant submitted that it has paid the
cheques in advance of the amounts included of principal and interest
thereupon, hence it was difficult for him to make the TDS. Further, the
interest to the finance companies were actually paid and there was no
outstanding amount payable at the end of the year. Thus provisions of
section 40a)(ia) were not applicable. It was also submitted that these
companies were having the PAN Numbers and addresses wereITA No.136/Ahd/2016M/s. Shiv Krupa Tin Containers vs. ITO
Asst.Year - 2010-11-9-available. The payees have already shown the interest income as their
income in their Income Tax Return filed for the year under
consideration. It also relied upon certain judgments including the
decision of Hon'ble ITAT, Agra in the case of Rajeev Kumar Agrawal inITA No. 337/Agra/2013 & others.3.8. Having considered the facts and submission, there is no doubt
about the statutory liability cast upon the appellant to make the TDS on
the interest payment to the NBFCs for the finance taken by the
appellant. In view of the provisions ofsection 194Aof the I. T. Act, it
was immaterial whether the cheques were given in advance for the
consolidated figures consists of principal and interest thereupon. Since
the interest amount was segregated and identifiable in respect of the
installment amounts that is why the P & L Account has been debited for
the interest amount. So, the AOs observation for not making the IDS on
the interest payment to NBFC is correct and justified.3.9. Now, with regard to the appellant's contention vide its letter
enclosing therewith the copies of certain letters from the respective
NBFCs, the same is dealt hereunder.3.9.1. Along with the written submission, the appellant has submitted
copies of the letters issued by the aforesaid parties and their ledger
account in appellant's books of accounts. The copies of these letters
were submitted first time before this office as additional evidences for
which the appellant has not completed the procedure laid down by way
of making a written request specifying the reasons of non - submission
of them before the AO in the assessment proceedings. So there was
nothing on record to see about furnishing of these additional evidences
due to good and sufficient reasons for admission as per the Rule 46A. In
absence of the same, these additional evidences are not admitted, and
hence, the same are not considered while taking the decision over the
issue.3.9.2. Without prejudice to non - admission of the additional evidences,
even on merits also, these documents are not entertainable for two
reasons; firstly in the letters given by these parties, nowhere it has beenITA No.136/Ahd/2016M/s. Shiv Krupa Tin Containers vs. ITO
Asst.Year - 2010-11- 10 -committed by each of the parties that they have included the interest
income in their books of accounts and the same has been offered for
taxation in the income tax return filed by each of such parties. Secondly,
as per the first proviso tosection 201 (1), the certificates from the
recipient parties should have been in the prescribed formal i.e. Form
No. 26A as per Rule 31ACB i.e. the certificate from a Chartered'
Accountant of the recipient parties. Thus, the appellant has not
submitted the Form No. 26A from the recipient parties wherein the
certificate has to be issued by the Chartered Accountant of the recipient
parties that the recipient company has included the interest income in
its return of income and paid the taxes. In absence of such certificates
in Form No. 26A, the appellant is not entitled to get the benefit granted
under second proviso tosection 40(a)(ia)r.w. first proviso tosection
201 (1)of the I. T. Act. In view of this, the case laws relied upon by the
appellant are not applicable and hence, they are not relevant.3.10. In view of the aforesaid discussion, the appellant has committed
the default for not making the TDS upon the interest payment to NBFCs,
and therefore, disallowance made by the AO is found correct and
justified and hence the same is confirmed. This view is further
supported by the judgment in the case of CIT Vs. Sikander Khan N.
Tunwar [(2013) 357 ITR 312 (Guj.)]. Relevant portion of the judgment
is reproduced hereunder:-"37. In our opinion, the Tribunal committed an error in applying
the principle of conscious omission in the present case. Firstly,
as already observed, we have serious doubt whether such
principle can be applied by comparing the draft presented in
Parliament and ultimate legislation which may be passed.
Secondly, the statutory provision is amply clear.38. In the result, we are of the opinion thatSection 40(a)(ia)would cover not only to the amounts which are payable as on
31st March of a particular year but also which are payable at any
time during the year. Of course, as long as the other
requirements of the said provision exist. In that context, in our
opinion the decision of the Special Bench of the Tribunal in theITA No.136/Ahd/2016M/s. Shiv Krupa Tin Containers vs. ITO
Asst.Year - 2010-11- 11 -case of M/s. Merilyn Shipping & Transports vs. ACIT (supra),
does not lay down correct law.39. We answer the question as under:-Question (1) in the negative i.e. in favour of the Revenue and
against the assessees.Question (2) also in the negative i.e. in favour of the Revenue
and against the assessees."3.11. The ground of appeal is accordingly dismissed."5.2. Aggrieved by the order of the ld.CIT(A), assessee is now in appeal
before us.5.3. Before us, ld.AR reiterated the submissions made before the AO and
ld.CIT(A) and further submitted that the parties to whom the assessee
made the payment of interest have already considered the payments
received from the assessee as their income and in such a situation, the
assessee cannot be considered to be an "assessee in default" and,
therefore, no disallowance can be made. He further relying on the
decision of Hon'ble Agra Tribunal in the case of Rajeev Kumar Agarwal
vs. Addl.CIT reported in (2014) 149 ITD 363 (Agra) submitted that the
assessee could not be punished for non-deduction of Tax at source when
the corresponding income was duly brought to tax. He also pointed out
to the table placed at page No.2 of the paper-book, wherein the details of
the payments are tabulated. He therefore submitted that in the present
case no disallowanceu/s.40(a)(ia)of the Act is called for. Ld.Sr.DR, onITA No.136/Ahd/2016M/s. Shiv Krupa Tin Containers vs. ITO
Asst.Year - 2010-11- 12 -the other hand, supported the orders of the authorities below and
submitted that there is no material on record to demonstrate that the
parties to whom the assessee had made the payment towards interest have
offered the amount to tax. In the alternate, he submitted that the matter
be remitted to AO for verification. He thus supported the order of the
AO & ld.CIT(A).6. We have heard the rival submissions, perused the material
available on record and gone through the orders of the authorities below
as well as the decision relied upon by the ld.AR. The issue in the present
case is with respect to disallowance of expensesu/s.40(a)(ia)of the Act
on account of non-deduction of TDS. Before us also, apart from the
oral submissions, assessee has also not placed any material on record to
demonstrate that the recipients of the amounts have considered the
amounts received from the assessee as their income. We find that there
is no finding of the lower authorities to the effect that the payment made
by the assessee have been considered by the respective payees as their
income. We further find that the Coordinate Bench of Tribunal in the
case of Agra Tribunal in the case of Rajeev Kumar Agarwal vs.
Addl.CIT[supra] has held at para-4 as under:-"The unambiguous underlying principle seems to be that in the
situations in which the assessee's tax withholding lapse have not
resulted in any loss to the exchequer, and this fact can be reasonably
demonstrated, the assessee cannot be treated as an assessee in default.ITA No.136/Ahd/2016M/s. Shiv Krupa Tin Containers vs. ITO
Asst.Year - 2010-11- 13 -The net effect of these amendments is that the disallowance undersection 40(a)(ia)shall not be attracted in the situations in which even if
the assessee has not deducted tax at source from the related payments
for expenditure but the recipient of the monies has taken into account
these receipts in computation of his income, paid due taxes, if any, on
the income so computed and has filed his income tax return undersection 139(1)."After considering various decision cited therein, the Coordinate
Bench of Tribunal further held at para-9 as under:-"When we appreciate the object of scheme ofsection 40(a)(ia), as on
the statute, and to examine whether or not, on a "fair, just and
equitable" interpretation of law- as is the guidance from Hon'ble Delhi
High Court on interpretation of this legal provision, in our humble
understanding, it could not be an "intended consequence" to disallow
the expenditure, due to non deduction of tax at source, even in a
situation in which corresponding income is brought to tax in the hands
of the recipient. The scheme ofSection 40(a)(ia), as we see it, is aimed
at ensuring that an expenditure should not be allowed as deduction in
the hands of an assessee in a situation in which income embedded in
such expenditure has remained untaxed due to tax withholding lapses
by the assessee. It is not, in our considered view, a penalty for tax
withholding lapse but it is a sort of compensatory deduction restriction
for an income going untaxed due to tax withholding lapse. The penalty
for tax withholding lapse per se is separately provided for inSection
271C, and,section 40(a)(ia)does not add to the same.
..............Accordingly, we hold that the insertion of second proviso toSection
40(a)(ia)is declaratory and curative in nature and it has retrospective
effect from 1st April, 2005, being the date from which sub clause(ia) ofsection 40(a)was inserted by theFinance (No.2) Act, 2004."ITA No.136/Ahd/2016M/s. Shiv Krupa Tin Containers vs. ITO
Asst.Year - 2010-11- 14 -6.1. In view of the aforesaid facts, wherein it has been held that second
proviso tosection 40(a)(ia)has retrospective effect from 1st April-2005
and in the absence of any material on record which could show that the
payees have already offered the amounts received from assessee as their
income, we are of the view that the issue needs to be restored back to the
file of ld.CIT(A) to decide the issue afresh in the light of our aforesaid
discussion and decide the issue afresh in accordance with law. Needless
to state that the ld.CIT(A) shall grant adequate opportunity of hearing to
both the parties. The assessee is also directed to co-operate by promptly
furnishing all the required details called for by the Authorities. Thus,
second ground of assessee's appeal is also allowed for statistical
purposes.7. In the result, assessee's appeal is allowed for statistical purposes.This Order pronounced in Open Court on 09/06/2016
Sd/- Sd/-
राजपाल यादव अ नल चतव
ु द
( या यक सद य) (लेख ा सद य)
(RAJPAL YADAV) ( ANIL CHATURVEDI )
JUDICIAL MEMBER ACCOUNTANT MEMBER
Ahmedabad; Dated 09/ 06 /2016
ट .सी.नायर, व. न.स./T.C. NAIR, Sr. PSITA No.136/Ahd/2016M/s. Shiv Krupa Tin Containers vs. ITO
Asst.Year - 2010-11
- 15 -आदे श क ! त#ल$प अ%े$षत/Copy of the Order forwarded to :1. अपीलाथ& / The Appellant2. '(यथ& / The Respondent.3. संबं5धत आयकर आयु7त / Concerned CIT4. आयकर आयु7त(अपील) / The CIT(A)-2, Ahmedabad5. 8वभागीय ' त न5ध, आयकर अपील य अ5धकरण, अहमदाबाद / DR, ITAT, Ahmedabad6. गाड फाईल / Guard file.आदे शानुसार/ BY ORDER,
स(या8पत ' त //True Copy//
उप/सहायक पंजीकार (Dy./Asstt.Registrar)
आयकर अपील
य अ धकरण, अहमदाबाद / ITAT, Ahmedabad1. Date of dictation .. 31.5.16 (dictation-pad 16+ pages attached at the end of this appeal-file)2. Date on which the typed draft is placed before the Dictating Member ...6.6.16/8.6.163. Other Member...4. Date on which the approved draft comes to the Sr.P.S./P.S.................5. Date on which the fair order is placed before the Dictating Member for
pronouncement......6. Date on which the fair order comes back to the Sr.P.S./P.S.......9.6.167. Date on which the file goes to the Bench Clerk.....................9.6.168. Date on which the file goes to the Head Clerk..........................................9. The date on which the file goes to the Assistant Registrar for signature
on the order..........................10. Date of Despatch of the Order.................. |
8c22c764-86a2-5538-9612-2da4606d4df2 | court_cases | Madras High CourtSurendra Overseas Ltd. vs Union Of India on 8 January, 1974Equivalent citations: AIR1974MAD297, AIR 1974 MADRAS 297, (1974) 2 MADLJ146 1987 MADLW 858, 1987 MADLW 858JUDGMENT
Ramaprasada Rao, J.1. The Chief Controller of Chartering, Government of India chartered the vessel 'A. P. Aruna', owned by the defendants, and entered into a charter party on 16-8-1963 under Ex. B.1. The charter was intended for the carriage of certain consignments of urea together with a certain quantity of empty gunny bags from Venice-Port Merghera to a port in West coast or East cost in India. The bills of lading evidencing the loading of he cargo are Exs. A.1 and A.2, which in turn incorporated the material terms contained in the charter party. Exs. A. 10 and A.11 are he certificates of weight issued at the port of shipment, whilst Exs. A.12 and A.13 are the certificates of origin relating to the goods. Ex. A.14 is the invoice issued by the seller. The invoice discloses the shipment of two consignments of urea, in all, 1,31,140 bags, for carriage to Madras and also 1312 empty bags along with it. Ex. A.15 is the certificate of inspection given by the High Commissioner of India at the port of shipment. The ship arrived at Madras on 10-10-1963 and commenced discharging of the cargo on 11-10-1963 and completed the same on 14-10-1963. The plaintiff's case is that out of the consignment of urea so loaded and as evidenced by the invoice as above, there was a short-landing of 370 bags of urea contend. The vessel also discharged 1340 bags of urea slack or torn or cut and 130 bags of ship sweepings. It appears that the ship's manifest under Exs. B2 and B3, also noticed such a situation. At or about the time of discharge, there was what is known as hatch survey, but without notice to the plaintiff. This is seen from Ex. B.5. This hatch survey was under taken by the vessel on its own responsibility when it was lying in No. 2 West Quay, Madras Harbour. It is common ground that this survey was not undertaken in the presence of the plaintiff or any one on their behalf. On the basis of the said hatch survey, the Master of the ship issued what is known as the Master's certificate of discharge of the cargo under Ex. B.11. As per the custom availing at the Port of madras, the cargo which was so discharged and hatch surveyed, was handed over to the Port Trust Authorities, who took delivery of the same from the Quay, apparently as the agents of the ship. Till this stage, it is common ground that there was no physical delivery of the cargo to the plaintiff as the consignee. After the Port Trust so took delivery of the cargo, as is usual, the plaintiff under Ex. B.4 requested their clearing agents, the South India Corporation (Agencies) Pvt. Ltd. to effect clearance after getting the usual certificate from the Port Trust Authorities. The Port Trust under Ex. A.3 gave what is popularly known as the B certificate, which is a short landing certificate, after making due enquiries as regards the quantum of the discharged cargo. Under Ex. A.3, the short landing of 370 bags as claimed by the plaintiff and also 1340 urea slack or torn or cut bags and 130 bags of ship sweepings were noticed. At this stage, it is proper to note that the short landing as disclosed in the B certificate was corroborated by the ship's out-turn statement Ex. A.32. That also discloses the short landing of the abovesaid 370 bags of urea etc. Even the tally sheets Ex. A. 44 of the Port Trust Authorities, who effected the discharge, would also confirm such shortage. As a matter of fact, a survey at the instance of the plaintiff consequent upon the issue of the short landing certificate under Ex. A.3 was held on 17th and 18th of October 1963 and from Ex. A-4 which is the certificate which followed such survey it is seen that 1340 bags of urea were slack and torn and there weight was lesser than in invoice weight and that there were ship sweepings of 130 bags which were also naturally lesser in weight than the avowed quantity as per the invoice. This is besides the shortage of 370 bags of urea as already noted.2. It was in these circumstances that the plaintiff came to court seeking for the value of the goods so short landed as also for the value of the goods damaged. The defendants in their written statement relied upon the charter party and in particular clause 4 therein, and pleaded that the cargo was duly delivered to the consignee as soon as it was discharged at the West Quay, that delivery of the goods to the Port Trust would imply delivery to the consignee and that, in view of the hatch survey held in the presence of the Master as evidenced by Exs. B-1 and B-11, they were not in any way responsible either for the shortage or the damage to the cargo. One other contention was raised by the defendants. They would attribute the damage to the cargo to the faulty and negligent stevedoring by the persons engaged by the plaintiff in the course of the discharge of the cargo from the vessel. Lastly they would state that they had performed their part of the contract of affreightment and they were therefore absolved from liability.3. The learned City Civil Judge framed the following issues for trial:1. Whether the alleged short delivery of 370 bags of urea is true?2. Whether the alleged shortage of 7088 metric tons of urea is true?3. Whether the entire cargo was landed as contended by the defendants?4. Whether the defendants are liable to compensate for the shortage under the contract of carriage?5. Whether the defendants or the agents were negligent in taking care of the cargo as alleged?6. Whether the suit is bad for want of notice from the plaintiff within three days from the date of removal of the goods?7. To what damages if any is the plaintiff entitled?8. To what relief if any is the plaintiff entitled?On issues 1 to 8, after considering the documentary evidence, he came to the conclusion that Ex. A.8, he short landing certificate issued by the Port Trust, which was corroborated duly by its own outturn statement as also the tally sheets under Exs. A. 32, 42, 43 and 44, were proof enough to accept the plaintiff's claim as to short-landing and damages. He also negatived the defendants' plea that there was negligence on the part of the plaintiff or their representatives, when the cargo was discharged from the hatches, as according to him, the labour engaged at or about the time when the cargo was discharged at the West Quay was labour provided by the Madras Dock Labour Board and the plaintiff was not in any way responsible for any alleged mishandling of the cargo by the labour force so provided and the plaintiff had no control over such labour force so provided and the plaintiff had no control over such labour when the discharge was made of the cargo from the hatches. In the result, he decreed to suit: the defendants have come up in appeal.4. The main contention of Mr. Duleep Singh, the learned counsel for the appellants it that Exs. B-1, B-5 & B-11 are primary documents, which disclose a normal discharge of the cargo, and that in any event, under Ex. B.1, it should be deemed that he delivery of the cargo was to the consignee when it was discharged at the West Quay, though physically it was handed over to the Port Trust Authorities. In the main, his contention is that the delivery of the cargo to the Port Trust should be deemed and accepted to be delivery to the consignee, and, if so accepted, Ex. B-1 and in particular clause 4 therein, exonerates the defendants from all supervening liability either in the matter of the shortage of the goods, or in respect of the damage to them in the course of the implementation or working out of the contract of affreightment.5. We may at once refer to clause 4 of the charter party Ex. B1, which runs as follows-"A declaration by the Master of Chief Officer that all cargo shipped has been delivered to the receivers shall be, and shall be accepted as, conclusive evidence of that fact, unless the receivers shall before the commencement of the discharge give to the Master notice in writing of their intention to tally the cargo, and unless such tally is in fact taken at the vessel's hatchways.........."Strong reliance is placed upon the text of this clause by the learned counsel for the appellants. He also relies upon the hatch survey held at the instance of the Master of the vessel, who ultimately gave Ex. B-11, his certificate of discharge. But it ought not to be forgotten that the said hatch survey was held by the vessel or its agents or officers without notice to the plaintiff. This is a self-serving activity the result of which cannot prejudice the party who has neither been called to be present at the time of such survey nor has any information been given to such a person who is likely to be affected thereby. It is not the case of the appellants that any such attempt was made to invite the attention of the plaintiff to be present at the time of such survey. We are, therefore, of the view that Ex. B.5, which is the report on such a hatch survey, is a self-serving document, which cannot be projected by the appellants to serve their own case. Regarding the certificate issued by the Master, it is neither corroborated by the ship's manifest or the tally sheets. As a matter of fact, the manifest as well as the tally sheets do support the short landing certificate issued by the Port Trust after due survey in the presence of the vessel's representatives. Ex. A.4 is the survey report and Ex. A.3 is the short landing certificate issued by the Port trust authorities. This is a certificate issued by a public body which obviously takes care of the cargo discharged from various ships coming from international borders. Nothing has been said as against Ex. A.3, nor any averment made either in the trial Court or before us against the method adopted by the surveyors when they effected the survey. Reading the documents Exs. A.2 and B.3 which are the ship's manifest and comparing the same with Ex. A.3 which is the short-landing certificate, the position is clear that the entire cargo has not been landed. That there has been short-landing cannot be disputed as it was physically established at the time of the survey under Ex. A.4. The only document put as against Ex. A.3 is Ex. B.5, read with Ex. B.11, the certificate of the Master. We have already characterised Exs. B.5 and B.11 as self-serving documents. Exs. A.3, B.2 & B.3 stand alone by themselves as documents on which reliance could be placed by a Court of law to accept that there was a short landing of cargo and that the cargo was also equally damaged as indicated in Ex. A.4. In fact, Mr. Duleep Singh did not seriously contend that there was no such short landing or damage to the cargo, in view of the abundance of documentary evidence with which he was confronted. He would however hesitantly contend that as the discharge was by labour force which negligently handled the cargo when it was lifted from the hatches at West Quay, the ship was not responsible for the same. There is a fallacy in this argument. The Master is responsible vicariously for the acts of his servants provided there is an admitted relationship of Master and servant as between them, or by necessary implication such a jural relationship is inferable from the circumstances of the case. In the instant case, there is evidence to show that the labour force deployed for the discharge of the cargo from the ship was a force over which the plaintiff had no control. As a matter of fact, it was supplied by an independent quasi statutory body, namely, the Madras Dock Labour Board. It may be that the labour so supplied by the Dock Labour Board used hooks while discharging the cargo from the vessel and consequently there was damage to it. the vessel ought to have taken the necessary precautions to prevent such handling at the time when such an attempt was made by the labour force engaged to discharge the cargo in an alleged negligent way. There is no evidence to support the contention that the labour force did act negligently and even if they did there was an initial objection by the vessel or its officers at the time of discharge that such a method of discharge ought not to be adopted by the labour force engaged and that they should be more careful in the matter of the removal of the cargo from the hatches. In the absence of any such evidence, we are inclined to accept the finding of the Court below that the use of the hooks by the labour engaged by the Madras Dock Labour Board in discharging the cargo from the vessel cannot be said to be act done by the persons engaged by the plaintiff. Unless there is a connection between the labour force engaged for the purpose of discharging the cargo and the plaintiff, it is unreasonable to hold that the plaintiff should be in any manner made responsible for the alleged negligence of such labour force.6. The last contention of the learned counsel for the appellants, however, turns on the interpretation of clause 4 of Ex. B.1. We have already excerpted this clause. The contention of the learned counsel for the appellants is that in the circumstances the discharge of the cargo at the West Quay on the date when it was cleared from the vessel from its hatches and delivered to the Port trust authorities, should be deemed for all purposes to be delivery to the receiver, or the consignee, who is the Regional Director (Food) Southern Region, Madras. That factually there was no such delivery to the representative of the plaintiff at Madras cannot be disputed. The argument proceeds that once it is not in dispute that the cargo has been discharged at Madras and the Port Trust authorities took delivery of the said cargo in full or in part, or in a damaged condition, from the vessel, then eo instanti clause 4 of Ex. B.1 would come into operation and would prevent any lis on the part of the receivers to further a claim for short-landing damage etc. No doubt, under clause 4, a declaration by the Master or the Chief Officer of the vessel that all cargo shipped has been delivered to the receivers shall be and shall be accepted as conclusive evidence of that fact. In the instant case, Ex. B.11 is one such certificate issued by the Master of the vessel that the cargo shipped has been allegedly delivered to the Madras Port trust. On the basis of this, the interdict contained in clause 4, which would bar an action by the receivers, is invoked. As we said, the argument is fallacious because the assumption that the cargo has been delivered to the receivers is by itself not well-founded. Admittedly the cargo was delivered to the Madras Port trust. This is the practice in the Port at Madras.7. Whether delivery to the Port Trust authorities would constitute delivery to the consignee, has come up in several cases of this Court and the courts have taken consistently the view that such delivery to the Port Trust is not delivery to the consignee and that the Port Trust takes such delivery on behalf of the vessel and not on behalf of the consignee.Instead of referring to the various decisions, it is sufficient to refer to the decision of the Supreme Court in the Trustee of Port of Madras by itsChairman v. Md. Rowther and Co., (1963) Supp 2 SCR 915. Raghubar Dayal, J., speaking for the Bench has categorically made the position clear and the opinion of the Bench is better quoted in their own words:"There is no doubt that the shipowner is the bailee of the shipper, the consignor, and that he is responsible for the delivery of the goods to the consignee or a transferee according to the terms of the bill of lading. This duty the ship-owner discharges only when he has delivered the goods to the consignee or such person who is entitled to take delivery in accordance with the endorsement on the bill of lading. Delivery to the Board is not delivery to the consignee or such person, both because the delivery is to be on the presentation of the bill of landing and because the Act (the Madras Port Trust Act) contains no provision which would constitute the Board an agent of the consignee for the purpose of taking delivery of the goods.... It is clear therefore that when the Board takes charge of the goods from the ship owner, the ship owner is the bailor and the Board is the bailee, and the Board's responsibility for the goods thereafter is that of the bailee. The Board does not get the goods from the consignee. It cannot be the bailee of consignee. It can be the agent of the consignee only if so appointed."This is not alleged in this case either. The Supreme Court concluded by saying-"..........the landing of the goods by the ship owner on the quay and placing them in charge of the Board does not amount to delivering them to the consignee, even though it absolves the Master of the ship from further responsibility for the loss or damage to the goods."These above statements are clinching and a complete answer to the contention of Mr. Duleep Singh, which is based on clause 4 of Ex. B.1. Admittedly, there is no physical delivery of the cargo to the consignee though it was discharged at the quay. It was only the Port trust which took delivery of the same. It was in custody of it. A survey was effected thereafter. The short landing and the damage was discovered as a result thereof. It was at that stage that the receiver or the consignee came into the picture and took deliver of the cargo as offered by the Port Trust in their godowns. Therefore, it is clear that it is only then that the consignee obtained physical custody or possession of the cargo discharged by the vessel at the Quay, though it was handed over as per the practice to the Port Trust authorities. It is for consideration whether at that point of time when the receivers took delivery of the goods from the Port Trust, there has been a complete delivery or a partial delivery, or delivery of goods which are partly damaged and partly in accordance with the invoice. It is this delivery which comes into the computation for the purpose of assessment of the reciprocal obligations and rights of either party under the charter party. Clause 4 of Ex. B.1 cannot therefore help the appellants. When the plaintiff received the cargo after the survey under Ex. A.1 it was discovered that there was a short landing and damage to the goods. This is supported by Ex. A.3, the shortlanding certificate issued by the Port trust authorities and corroborated as well by the ship manifest and tally sheets already referred to. We have, therefore, no hesitation in accepting the case of the plaintiff that there was a shortlanding and damage to the cargo as complained. Such shortlanding and damage have been proved by acceptable evidence. The Court below was right in awarding damages being the money equivalent to such shortlanded cargo and damaged cargo. In so far as the quantum of the damages awarded by the Court below is concerned, there is no dispute.8. The appeal therefore fails and it is dismissed with costs.9. Appeal dismissed. |
ca5e10d6-0168-534d-9a59-9505ebb00b4d | court_cases | Calcutta High Court (Appellete Side)Md. Akbar vs The State Of West Bengal & Anr on 27 July, 2009Author:Ashim Kumar RoyBench:Ashim Kumar RoyForm No. J (1)
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Appellate Side
Present:The Hon'ble Justice Ashim Kumar Roy
C.R.R. No. 2018 of 2009
Md. Akbar
versus
The State of West Bengal & Anr.For Petitioner : Mr. Ayan Bhattacharjee
For State : Mr. Rajib Bose
For O.P. No. 2 : Mr. Sufi Kamal
Heard On : July 21st, 2009.
Judgment On : 27-07-2009.In this application invoking inherent jurisdiction of this Court, the
petitioner who has been charge-sheeted underSection 498Aof the Indian Penal
Code, in connection with C.G.R. No. 1789 of 2003 arising out of Ekbalpore Police
Station Case No. 120 of 2003, moved this Court for quashing of the charge-sheet.2. Heard Mr. Ayan Bhattacharjee, the Learned Counsel, appearing for
the petitioner, Mr. Rajib Bose, Learned Counsel, appearing for the State as well
as Mr. Sufi Kamal, Learned Counsel, appearing for the opposite party no. 2/wife,
the defacto-complainant.3. Mr. Bhattacharjee vhemently urged before this Court that there is no
allegation in the First Information Report as well as nothing transpires from the
evidentiary materials gathered by the police during investigation that there was
any willful conduct on the part of the accused persons, which is of such nature,
as was likely to drive the defacto-complainant to commit suicide or have caused
her grave injury or danger to life, limb or health. He further submitted there is
also no allegation that the defacto-complainant was harassed on demand of
dowry. According to Mr. Bhattacharjee, mere demand of money on account of
some urgent domestic expenses or for purchasing any domestic appliances
cannot be deemed to be a demand for dowry and more particularly, when such
demand is made long after the marriage and in the present case, nearly three
years after.In this connection, Mr. Bhattacharjee relies on a decision of the Apex
Court in the case ofAppasaheb & Anr. Vs. State of Maharashtra, reported in
(2007) 3 SCC (Cri) 468.On the other hand, Mr. Sufi Kamal, Learned Counsel, appearing on
behalf of the defacto-complainant, strongly repudiated the submissions of Mr.
Bhattacharjee and draws my attention to the allegations made in paragraph 4 of
the First Information Report and submitted that at the time of marriage although
pursuant to the demand made by the accused persons, cash money as well as
other household articles were given to them as dowry but still they were
demanding money for a refrigerator and since such demand could not have been
fulfilled by the parents of the victim wife, she was tortured both physically and
mentally by the accused persons and was finally driven out from her matrimonial
home. Mr. Sufi Kamal vehemently urged that there are three occasions related to
dowry. One is before marriage, second is at the time of marriage and the third is
"at any time" after the marriage. The third occasion is for unending period.
According to Mr. Sufi Kamal, the demand was made actually at the time of
marriage and since such demand could not have been fulfilled at the time of the
marriage, the accused persons continued with such demand even after the
marriage and then drove her out from the matrimonial home for non-fulfillment
of the same. Mr. Sufi Kamal, in support of his submissions, relied upon the
following decisions;Satvir Singh & Ors. Vs. State of Punjab & Anr., reported in (2001) 8
SCC 633, Koppisetti Subbharao @ Subramaniam Vs. State of A.P., reported in
2009 (3) Supreme Today 691 and Ran Singh & Anr. Vs. State of Haryana & Anr.,
reported in 2008 (1) CLJ (SC) 230.Mr. Rajib Bose, learned Counsel, appearing for the State, produced
the Case Diary and submitted that sufficient materials have been collected
during the investigation and the police was fully justified in submitting charge-
sheet underSection 498Aof the Indian Penal Code.4. Having heard the Learned Counsels appearing on behalf of the
parties and considering their respective submissions and the evidentiary
materials available from the Case Diary, I am satisfied that there is nothing
wrong in the impugned charge-sheet underSection 498Aof the Indian Penal
Code against the petitioner. In this connection it would be sufficient to refer to
the allegations made in paragraph 4 of the First Information Report and the same
is quoted below;"4. That the accused person no. one, received Rs. 20,000/- in
cash, and 8,000/- for other expenses like Bus fair etc., one
Gold Chain weighing about One Tolla, Two Gold Ring/14",
B.P.L. Colour T.V., one Titan Wrist Watch value Rs. 2500/-,
two summer winter suits, and Rs. 12,000/- in cash and always
the accused persons demanded money for refrigerator from
your petitioner's parents but on refusal they threatened to kill
your petitioner and for that your petitioner made complain to
the Police authority and finally on 23.5.03 the accused persons
started quarrel with your petitioner and driven out taking away
all belonging and ornament and fled away to Mohalla Kabir
Gunge (Adam Khani) near Chowkhandi More, P.O. Sasharam,
District Rohtas (Bihar), and it has already been reported to the
P.S. Ekbalpore, vide G.D.E. No. 2442, dt. 26.05.03."5. The allegations made in the First Information Report as aforesaid
coupled with the evidentiary materials collected by the police during
investigation, it cannot be doubted that a prima facie case for an offence
punishable underSection 498Aof the Indian Penal Code has been clearly made
out against the present petitioner. It is the clear allegation that even after receipt
of cash money as well as other household articles at the time of the marriage, the
accused persons still insisted on their demand for a refrigerator and due to the
failure of the parents of the victim to fulfil their such demand, she was subjected
to torture and then was driven out from her matrimonial home.This criminal revision has no merit and accordingly, stands
dismissed.Criminal Section is directed to deliver urgent Photostat certified copy
of this Judgement to the parties, if applied for, as early as possible.( Ashim Kumar Roy, J. ) |
7f1f4cc2-fcaf-51f6-b27d-62fd363ded15 | court_cases | Madras High CourtS. Selvam vs The Commandant, Deputy Inspector ... on 19 November, 2002Author:P.K. MisraBench:P.K. MisraORDER
P.K. Misra, J.1. Heard the learned counsel appearing for the parties.2.The petitioner was served with an order of removal from service, which has been confirmed in appeal. The petitioner was serving in Central Reserve Police Force (per short 'CRPF'). Departmental proceeding was initiated against the petitioner. The gravamen of the charge was to the effect that the petitioner has overstayed leave. In the departmental proceedings, the petitioner filed reply denying articles of charge. However, the petitioner had remained exparte. Ultimately, the disciplinary authority found that the petitioner had overstayed and thereafter the order of removal has been passed.3. The learned counsel for the petitioner submitted that the proceeding was decided exparte and sufficient opportunity had not been given. In the alternative, the learned counsel for the petitioner submitted that the order of removal from service has the effect of depriving the petitioner of the means of livelihood and the order of punishment is grossly disproportionate to the nature of allegations made against the petitioner.4. In the counter affidavit filed on behalf of the respondents, it has been stated that proceedings had been conducted in accordance with rules and the petitioner had not co-operated in the enquiry. It has been further stated that CRPF, being a disciplined force, the employees of CRPF have to maintain utmost discipline and this sort of activities should not be encouraged. It has been further stated that keeping in view the conduct of the petitioner and his subsequent disobedience, it cannot be said that the order of removal from service is disproportionate.5. The contention of the counsel for the petitioner that adequate opportunity to the petitioner had not been given prima facie appears to be correct and in normal course, I would have remanded the matter to the disciplinary authority for fresh disposal. However, I find that the matter is pending before this Court since 1999 and the main allegation regarding absence from duty appears to be undisputed. Therefore, it would not be proper to remand the matter at this distant point of time and in my opinion, interest of justice would be served by considering the alternative plea of the petitioner regarding the punishment imposed.6. On going through the materials on record and keeping in view the nature of allegation, the punishment of removal from service, in the peculiar facts and circumstances of the case, appears to be grossly disproportionate and it would have been more proper to impose some other punishment. It is no doubt true that CRPF is a disciplined force and the employees are required to maintain discipline. However, by removing the petitioner from service, he has been deprived of the means of livelihood. In many similar cases, Supreme Court has taken lenient view of the matter, even in respect of disciplined forces like Police and directed for modification of the order of punishment.7. Having regard to the facts and circumstances of the case, I feel that interest of justice would be served by quashing the order of removal by modifying the punishment. While quashing the order of removal from service, it is directed that the petitioner shall be confined to Quarter Guard for a period of three days. It is further directed that no backwages would be paid for the period from the date of removal till the date of rejoining. The petitioner shall report before the first respondent within a period of two weeks from the date of receipt of order and thereafter and after undergoing the punishment now imposed, an appropriate order regarding posting shall be passed by the first respondent. Even if the petitioner would not be paid of the backwages for the above period, the said period shall be treated for other service benefits such as seniority, increments, pension, etc.8. Accordingly, the writ petition is disposed of. No costs. |
7a75c2a7-b2ff-5937-8d0e-6b5dc582d2f5 | court_cases | Calcutta High Court (Appellete Side)Purbanchal Estates Pvt. Ltd vs Hiralal Sarawgee & Ors on 19 June, 2009Author:Prasenjit MandalBench:Prasenjit MandalForm No.J(2) IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
C.O. No. 4059 of 2007
Present :
The Hon'ble Mr. Justice Prasenjit Mandal
Purbanchal Estates Pvt. Ltd.
Versus
Hiralal Sarawgee & Ors.
For the petitioner: Mr. Surajit Mitra,
Mr. K. K. Boral.
For the opposite parties: Mr. S. P. Roy Chowdhury,
Mr. B. Ghosal,
Mr. U. Dutta,
Mr. A. Gupta,
Mr. M. Mitra,
Mr. B. Chowdhury.Heard On: 20.05.2009, 21.05.2009 & 12.06.2009.
Judgement On: June 19, 2009.Prasenjit Mandal, J.: This application is at the instance of the
defendant no.1/petitioner and is directed against the order no.179
dated 6th September, 2007 passed by the learned Civil Judge (Senior
Division), Third Court at Alipore in Title Suit No.115 of 2004
whereby he allowed the petition underOrder 6 Rule 17 of the Code
of Civil Procedurefiled by the plaintiffs/opposite parties.The plaintiffs/opposite parties instituted the suit for
declaration to the effect that the certain deed dated 25th July,
1992 executed by the plaintiff no.1 was void and other
consequential reliefs. The plaintiffs contended in the plaint
that the plaintiff no.1 is a person of weak mind and some of the
defendants took advantage of the same by exercising
misrepresentation and undue influence to have the said deed of
conveyance on the representation that the plaintiff no.1 was going
to execute a Power of Attorney and so the signature of the
plaintiff no.1 was required on the said document. On realising
the fact of execution of the deed of conveyance instead of Power
of Attorney the plaintiffs filed the suit for the reliefs stated.
The plaintiff no.1 executed another deed of rectification
rectifying certain defects which crept into the said deed of
conveyance dated 25th July, 1992. During pendency of the suit, the
plaintiffs prayed for amendment of the plaint praying for
incorporation of certain paragraphs after the paragraph no.39 of
the plaint which was allowed by the order impugned. Being
aggrieved by the said order, the defendant no.1 preferred this
application.Mr. Mitra, learned Senior Advocate for the petitioner
contended that initially the suit was for declaration and other
consequential reliefs on the facts stated in the plaint but by way
of amendment, the plaintiffs wanted to incorporate certain facts
which could not be allowed afterwards. He contended that such
amendment is barred by the law of limitation and if it is allowed,
the amendment would relate to the date back of filing of the suit
and so such amendment after the period of limitation is totally
barred by the law of limitation and thus the defendant/petitioner
acquired a valuable right. So the learned Trial Judge should have
rejected the application for amendment of the plaint. He also
contended that initially the suit was simply for declaration that
a certain deed is void on the ground of misrepresentation. But by
way of proposed amendment the plaintiffs wanted to incorporate
certain facts which were totally absent in the original plaint.
He pointed out the proposed paragraph no.39 which lays down that
the plaintiffs were governed by the Mitakhara law relating to
succession and so one co-sharer could not sell the property or
portion thereof without offering the same to his co-sharer or
other members of the family. Moreover, the suit property being
the subject matter of trust, one co-sharer could not transfer the
same without permission of the competent court. He also contended
that the reliefs sought for after lapse of the period of
limitation from the date of filing of the suit could not be
granted in view of the relief sought for by way of amendment.
According toArticle 97of theLimitation Act, such relief could
not be granted by the Court. According toArticle 97of the said
Act, only one year is granted to opt for pre-emption. He has
referred certain decisions with regard to his contentions such as
(2004) 3 SCC 392, (2002) 2 SCC 445 and AIR 2008 SC 2171.On the other hand, Mr. Roy Chowdhury, learned Senior Advocate
for the opposite party, contended that the original suit was for
declaration and consequential reliefs. By way of amendment, the
plaintiffs simply wanted to make elaboration of the fact already
stated in the plaint and no new fact was incorporated in the
proposed application for amendment of the plaint. He also
contended that such amendment was sought for to settle the dispute
between the parties finally and for that reason if the proposed
amendment was granted by the Court exercising discretionary power,
according to the liberal principles in allowing the application
for amendment as per several directions of the Apex Court, the
petitioner will not be prejudiced. He also contended that the
object of such amendment is to minimise the litigation between the
parties for making complete adjudication of the dispute amongst
them. He also contended that whether a particular amendment is
barred by limitation or not shall be considered at the time of
trial only and not before that stage. He referred to a number of
decisions in support of his contention such as AIR 1968 SC 956,
AIR 1969 SC 1267, (2006) 6 SCC 498, (2006) 4 SCC 385, 2007 (1) ICC
67 and 2007(2) CLJ Cal 781.After going through the rival contentions and perusing the
materials on record, I find that Mr. Mitra merely relied upon the
question of limitation and by referring the decisions cited by him
(supra) he contended that the application for amendment should not
have been allowed by the learned Trial Judge because the effect
would be that it would take way the valuable right accrued by
lapse of time on the part of the plaintiff.Mr. Roy Chowdhury submitted in details about the basic
principles in disposing of the application for amendment of the
plaint and referred to the decisions such as AIR 1968 SC 956, AIR
1969 SC 1267, (2006) 6 SCC 498, (2006) 4 SCC 385. On perusal of
those decisions, I have no hesitation to hold that amendment of
plaint is a discretionary power entrusted upon the Court and such
power is to be exercised by the Court keeping in mind that
proposed amendment would shorten the litigation, preserve and
safeguard the rights of both the parties and to sub-serve the
needs of justice. At the same time, court should not be unmindful
to consider the fact if the proposed amendment was intended to
prevent the defendant from getting the benefit of a right accrued
by lapse of time. At the same time Court must not be unmindful to
take notice that prayer for amendment should not be refused on
mere technical grounds. In the instant case, there is no doubt
that cause of action starts from the moment when the fact of
misrepresentation, undue influence, etc. was discovered. Here, I
find immediately after detection of such alleged facts, the
plaintiff filed the suit for the reliefs stated. But by the
subsequent amendment, the plaintiff wanted to incorporate certain
facts as indicated in paragraph no.39A. appearing at page no.48 of
the application. The plaintiff also wanted to incorporate the
fact that the property in suit could not be transferred by the
plaintiff without prior permission from the Court because the
property belonged to a Trust. The plaintiff also wanted to
include the prayer in the plaint to the following effect:-"Declaration that the Plaintiff No.1 has no authority to
transfer/alienate share of the suit property that is in
respect of a house which was the dwelling house of an
undivided family belonging to the mother, and such sale
is not binding on the plaintiffs."Mr. Mitra also contended that prayer for pre-emption is also
barred byArticle 97of theLimitation Acton the ground that such
right must be exercised within one year from the date of
registration. The proposed application having been filed long
after one year from the date of so-called deduction of
misrepresentation, undue influence, etc. Such prayer for pre-
emption could not be granted at all.All the facts relating to the execution of the impugned deed
and subsequent development are to be scrutinised at the time of
trial and before trial it cannot be decided actually whether any
undue influence or misrepresentation was caused upon the plaintiff
no.1 or whether in spite of knowing the fact of transfer of the
property in suit, the plaintiff came up with the application for
pre-emption after one year from the date of knowledge of the
execution. Therefore, if the proposed amendment is considered in
the light of the original plaint and the objection raised as a
whole I am of the view that unless and until evidence is recorded,
the question of limitation for pre-emption cannot be decided at
all. It is a mixed question of fact and law and so at this initial
stage when trial of the suit is yet to begin, it cannot be decided
the question of limitation. I am, therefore, of the view that so
far as the question of limitation relating to the prayer for pre-
emption as sought for shall be decided at the time of trial only
and this question of limitation is left open for decision at the
time of trial. At present, I find that cause of action to file the
suit remains the same. The relief sought for in the original
plaint and the relief sought for in the application for amendment
of the plaint cannot be said to be contradictory each other.
Rather, if the proposed amendment of the plaint is granted, it
would sub-serve the interest of justice of both the parties and
that it would serve to minimise the litigation. The petitioner
would be at liberty to file additional written statement to suit
his defence with regard to the proposed amendment and additional
issues shall be framed to make complete adjudication between the
parties.The defendant is not in a position to suffer irreparable loss
if the proposed amendment is allowed with the above observations
relating to limitation. The decision reported in 2001(2) SCC 472
and 2007(2) CLJ Cal 781 support such view. So the proposed
amendment, I hold, cannot be described as totally change of cause
of action or altogether an inconsistent pleading which takes away
the earlier admission of the plaintiff.In that view of the matter, I am of the view that in allowing
the application for amendment of the plaint, the learned Trial
Judge has not caused any miscarriage of justice against the
petitioner. Rather, he has allowed the application for amendment
of the plaint before commencement of the trial to settle the
dispute between the parties once for all. There is nothing to
interfere with the order impugned.With the above observations, the present application is
disposed of and the learned Trial Court shall proceed with the
suit accordingly.Interim order of stay as passed in the application is hereby
discharged.Considering the circumstances, there will be no order as to
costs.Urgent xerox certified copy of this order, if applied for, be
supplied to the learned Advocates for the parties on their usual
undertaking.(Prasenjit Mandal, J.)
Later:Learned Advocate for the petitioner prays for stay of
operation of this judgment. Upon hearing the submission of the
learned Advocates of both sides prayer for stay is considered and
rejected.(Prasenjit Mandal, J.) |
c9ec1e0a-1224-577b-bb36-b4489abf3f62 | court_cases | Rajasthan High CourtAnand Mishra And Anr vs State Of Raj And Ors on 25 February, 2010Author:Ajay RastogiBench:Ajay RastogiIn the High Court of Judicature for Rajasthan
at Jaipur Bench
**
Civil Writ Petition No.5966/2009
Anand Mishra & Anr Versus State & Ors.
(& Cognate cases as per Schedule annexed)
/Reportable/ ***
Date of Order ::: 25/02/10
Hon'ble Mr. Justice Ajay Rastogi
***
For petitioners -
Sarva Shri Rajendra Soni, Shailesh Pra.Sharma
NK Maloo, SS Hora, Tanveer Ahmed,Vinod Gupta,
Kailash C. Sharma, RD Soni/Kuldeep Aswal,
Rampartap Saini, Ripu DS Naruka, HR Kumawat,
Praveen Sharma, Rajeev Sogarwal, JK Yogi,
Rajesh Kala, SS Mahla, Shiv C.Gupta & TC Sharma.
Mr. RP Singh Addl. Adv. General, for respondents-States
Mr. Sandeep Saxena & Anoop Agrawal, for respondentsSince all these petitions as per Schedule appended herewith involve common question, hence at joint request, were heard together and are being disposed of by present order.The dispute relates to eligibility of petitioners who applied for the posts of Rural Lab. Technician/Lab. Technician for their participation in the process initiated by the respondents pursuant to two different advertisements dt.07/07/2008 & dt.06/10/2009 respectively.Post of Rural Lab. Technician (RLT) is included in Schedule-IV (Medical Side) of Rajasthan Rural Medical & Health Subordinate Service Rules, 2008 (Rules, 2008) while post of Lab. Technician (LT) is included in Schedule- of Rajasthan Medical & Health Subordinate Service Rules, 1965 (Rules, 1965). However, eligibility for the post of Lab. Technician (Rural) under Rules, 2008 or of Lab. Technician under Rules, 1965 is one and the same.The instant petitioners intending to participate in the process of selection initiated by respondents, submitted their applications pursuant to advertisements dt. 07/07/2008 & dt.06/10/2009, as the case may be, for the post of Rural Lab. Technician or Lab. Technician; but their candidature was rejected on the premise that they were not holding training of Laboratory Technician from institutes recognized by Government.Earlier, in a bunch of writ petitions (CWP-11339/08 Deepak Nehra Vs. State & Other cognate cases, decided vide order dt.06/02/09) this Court directed the petitioners to submit their representation independently to the State Government, which was directed to decide the same within one month. Their representations were rejected by State Government vide order dt.26/03/09 (Ann.12-CWP-5966/09) while holding that Institutes from where training of Lab. Technician acquired by petitioners has not been recognized by State Government; as such they cannot be considered to be eligible for the posts of RLT/LT under Rules, 2008 & 1965, which has been assailed by a bunch of instant petitions.Apart from academic qualification of Secondary Standard, nine months training of Laboratory Technician from the institutes recognized by Government is also one of the qualifications for the applicants claiming themselves to be eligible under Rules, 2008 & 1965. Schedule-IV (Medical Side) of Rules, 2008 prescribes minimum qualification of Laboratory Technician (Rural) ad infra:S.No./ Designation of Post
Methods of recruitment with %
Post from which promotion is to be made
Qualification & experience for promo
tion
Qualification & Experience for
Direct recruitment
Remarks
2. Laboratory
Technician
100% by direct recruitment
-
-Secondary Standard with 9 months Laboratory Technician Course passed from Institutes recgonised by Government.If no suitable person is available, post shall be filled in by transfer from Laboratory Technician appointed under Rajasthan & Health Subordinate Service, 1965
Group A-VI (Para Medical Cadre (Medical) of Schedule-I of Rules, 1965 prescribes minimum qualification of Laboratory Technician ad infra:S.No. Name
of
Post
Source of recruitment with percentage
Direct recruitment/
Pro
mo-tion
Minimum Qualification & Experience for
Direct recruitment
Post from which promotion is to be made
Min Qualification & experience for promotion
Remarks4. Laboratory
Technician
100.00%-Secondary or its equivalent with 9 months Training Certificate from Institute. Recognised by Govt., Or
In the event of non-availability of candidates possessing certificate of 9 months training from Institution recognised by Government, the candidates possessing the following qualifications can be considered Secondary of a recognised certificate of Laboratory Technology course run by the Santokba Durlabhji Memorial Hospital, Jaipur or B.Sc. With Biology with Post Graduate Diploma in Laboratory Technology from the Maharshi Dayanand Saraswati University, Ajmer with Hospital based training in the JLN Medical College, Ajmer recognised by the Govt.--There shall be no distinction between Laboratrory Technician & Malaria Technician. The cadre will be re-designated as Laboratory Technician only.In most of writ petitions, petitioners did their Diploma in Medical Laboratory Technology from Janardan Rai Nagar Rajasthan Vidyapeeth University (JRN University), Udaipur, being established U/s 3 of theUGC Act, 1956vide notification dt. 12/01/1987 of Government of India; while there is another bunch of writ petitions where the petitioners did Diploma/Certificate course of Medical Laboratory Technology from various institutes run by the Societies registered under Society's Registration Act.After examining writ petitions, the Court has been able to find out few of the institutes, from which the petitioners did their training - on the basis whereof they claim themselves to be eligible for the posts of RLT/LT :-(1)One year's Diploma from PMTS of India & PMTO of India registered by Delhi Administration, Government of India under SR Act XXI of 1860 (CWP-5244/09, 5248/09, 9505/09, 14667/09);
(2)Indian Medical Association, New Delhi registered Society through its School (a) Sevayatan Institute of Para Medical Science, Sikar (CWP-8188/09), (b)Rajdhani Institute of Para Medical Technology, Alwar (CWP-15880/09);
(3)Institute of Para Medical Technology, New Delhi (One year Diploma)(CWP-5250/09);
(4)Sanjeevan Institute of Paramedical Sciences & Nursing Jaipur (CWP-13458/09)
(5)University of Tech. & Sciences, Raipur (CWP-15861/09)
(6)Institute of Public Health Hygiene, New Delhi (CWP-14158/09) & 14667/09 (Mahesh Kr. Dewat);
(7)Punjab Technical University Jalandhar (CWP-16038/09);(8)Sanford Institute of Paramedical Sciences Bangalore (CWP-13458/09) & Indian Health & Para Medical Research, Bikaner (CWP-16096/09) under Continuing Education Centre approved by All Indian Council for Technical Education (statutory body of Government of India);
(9)Baba Haridas College of Pharmacy & Technology New Delhi under Board of Technical Education, Delhi (CWP-14125/09);
(10)VMRF Deemed University Salem (Tamilnadu)(CWP-14667/09 Vasudev Sharma)
All these are private institutes registered under registration of societies Act or with Indian Medical Association recognised by Director, Health & Medical Service Government of India. Indisputably, the training of medical laboratory technology imparted by these private institutes (supra) is not being recognized by the Government.Counsel for petitioners jointly submit that since the petitioners did their diploma/ certificate from a University established U/s 3 of theUGC Act, which needs no further recognition from the Government; hence diploma/ certificate of medical laboratory technology is deemed to be recognized for all practical purposes. Counsel further submits that the department of Education, Govt. of Rajasthan has issued a Circular dt.03/11/99 holding that those holding Degree from a University established under Central/State Act, no further recognition of their Degree is required from the Government for employment. Taking assistance of Circular dt.03/11/99, Counsel submit that no further recognition from State Government for employment is required in regard to diploma/certificate awarded to the petitioners by JRN University and their diploma /certificate course in medical laboratory technology from JRN University has to be treated to be recognized qualification and based thereon, they are eligible to participate in the process initiated by respondents pursuant to advertisements dt.07/07/08 & 06/10/09 and denial thereof is in violation of principles of natural justice and ofArt.14of Constitution of India .On behalf of petitioners who did their diploma/certificate of medical laboratory technology from private institutes (supra) of societies duly registered but not recognized by State Government, Counsel jointly submit that since their diploma/certificate has been awarded from the society registered under Society's Registration Act and recognized by respective State or by Central Government, which does not require any further recognition from Government of Rajasthan and they do hold requisite qualification and rejection of their candidature by respondents is wholly arbitrary and their action deserves to be set aside.The University Grants Commission (respondent-5) has filed its counter by way of an affidavit in CWP-5966/09 in regard to such petitioners who did their diploma/ certificate from JRN University. In the affidavit dt. 25/09/2009, it has been inter-alia deposed that JRN University was granted status of deemed to be University without any off campus centre vide notification dt.12/01/87; and such deemed to be universities are not permitted by the UGC to open any study centre or any off-campus centre; inasmuch as they are not empowered to grant affiliation to any other institutes. However, JRN University started certain courses under distance education programs which were not recognized since the UGC did not approve off-campus centre or to open any study centre or to affiliate any institute; but still these off-campus centers were established by JRN Univ.; however, after detailed correspondences, the UGC conveyed its one time ex post facto approval vide letter dt.03/07/2006 (Ann.R/7). However, in para 32 of counter affidavit, as regards Diploma in medical Laboratory technology, it has also been deposed ad infra:32. That however, it is submitted that so far as certificate and diploma courses are concerned, the UGC does not specify the same and the UGC does not have any information regarding two years diploma course in medical Lab Technology of Janaradan Rai Nagar Rajasthan Vidyapeth.Respondent-State in its reply (CWP-8803/2009 Vijay Kumar Bairwa Vs. State) in paras 5 & 6 has specifically averred that training courses of Laboratory Technician were conducted in Government Hospitals alongwith two private institutions namely (1) Santokba Durlabhji Hospital, Jaipur & (2) B.Sc. (Biology) from Mahrishi Dayanand Saraswati University, Ajmer with practical training from JLN Hospital, Ajmer, duly recognized for conducting Lab. Technician course vide order dt.25/07/1995 till 02/11/2004; and thereafter stood transferred to the Department of Higher Technical Education; and subsequent to 02/11/2004, the Department of Higher Technical Education granted recognition to only four Govt. Medical Colleges & Two private medical colleges for training course of Lab. Technician ad infra :Government Medical Colleges:(1)SMS Medical College, Jaipur
(2)JLN Medical College, Ajmer
(3)SN Medical College, Jodhpur
(4)Government Medical College, Kota
Private Medical Colleges :(1)Institute of Medical Technology & Nursing Education, Jaipur
(2)Smt. Dakuben Sharemaiji Sancheti Para-Medical Institute, Sumerpur (Pali)
Per contra, learned Additional Advocate General on the other hand submits that neither diploma/certificate from JRN University nor other private institutes are recognized by State Government in absence whereof, petitioners cannot be considered to be eligible holding requisite training of medical Laboratory technology; as such they are not eligible to participate in the process pursuant to both the advertisements and their rights could not be said to have been infringed.This Court has considered rival contentions of Counsel for the parties and with their assistance, examined material on record. This Court would like to first deal with such petitioners who did their diploma/ certificate course of medical laboratory technology training from JRN University. From the counter affidavit filed on behalf of respondent-UGC, this fact remains undisputed that JRN University was granted status of deemed to be University vide notification dt.12/01/87 U/s 3 ofUGC Act, which provides that the Central government may, on the advice of the commission, declare, by notification in official gazette, that any institution for higher education, other than a University, shall be deemed to be a university for the purpose of theUGC Act; and on such a declaration being made, all the provisions of theUGC Actshall apply to such institution as if it were a University within the meaning of Cl.(f) ofS.2of the UGC Act. However,S.22(1)of UGC Act provides that right of conferring or granting Degrees shall be exercised only by a University established or incorporated by or under a Central Act, or aProvincial Actor a State Act or an institution deemed to be a University U/s 3 ofUGC Actto confer or grant Degrees; whereas U/s 22(2) of the Act, no person or authority shall confer, or grant, or hold himself or itself out as entitled to confer or grant, any degree.In the instant cases, diploma/ certificate of medical laboratory technology is not a course being recognized or approved to an institution for higher education having status of a deemed University U/s 3 ofUGC Actlike JRN University; per contra, the UGC in its affidavit-para 32 has clearly deposed that UGC does not have any information regarding diploma course like present one - medical laboratory technology and is not a part of curriculam of Institution for higher education established under a statute or a deemed University established U/s 3 ofUGC Act.Circular dt.03/11/1999 issued by State Government referred to by petitioners only confines to a degree having been conferred by Universities or those having status of a deemed University U/s 3 ofUGC Actand rightly so, since University alone can confer or grant degree U/s 22(1) of the Act and if degree has been awarded by a University established under statute or underUGC Act, certainly it needs no further recognition from any State authority; but at the same time, such diploma/certificate courses being not a part of curriculum of a University imparting higher education for awarding degree U/s 22(1) ofUGC Actin absence of an Institution (JRN University)being recognized by State Government in the opinion of this Court, such diploma/certificate of medical laboratory technology from JRN University cannot be considered to be a training from recognised institutions, which is a condition of eligibility for the posts of RLT/LT under Rules, 2008 & 1965 and candidatures of petitioners holding diploma/ certificate of medical laboratory technology from JRN University have rightly been rejected declining to participate in the process initiated under both the advertisements dt. 07/07/08 & 06/10/09.As regards petitioners of second category holding diploma/certificate of medical laboratory technology either from a registered society or from institution recognized by DGHS or Government of India or from other State Government, if any, will not hold corresponding deemed recognition by the Government (State of Rajasthan); and in the opinion of this Court, unless such diploma/certificate awarded by such institutions, being recognized by State Govt., it cannot be considered to be a deemed recognition to an institute imparting training course of medical laboratory technology which may make them eligible under Rules, 1965/2008 to participate in the process initiated by respondents.However, this Court would like to observe that the State legislature has enacted Act No.25 of 2008Rajasthan Para-medical Council Act, 2008(Act, 2008) which came into force from its publication in Rajasthan Gazette dt.05/08/2008. Basic object of enactment of the Act, 2008 was to provide and constitute Para-medical council which may regulate para-medical profession and grant recognition to institutions imparting education or training of para-medical subjects in State of Rajasthan.S.2of Act, 2008 deals with definitions. Its clauses (g) & (h) define recognized institution and recognized para-medical qualification ad infra:(g) recognized institution means an institution imparting education or training in any of the para-medical subjects and recognized under the provisions of this Act.(f) recognized Para-medical qualification means a degree, diploma or a certificate in any of the para-medical subjects granted by a recognized institution or a qualification declared to be a recognized qualification under Sec.32.At the same time, Chapter IV provides procedure for recognition of paramedicalInstitution and Chapter-V of the Act, 2008provides recognition of qualifications granted outside the territories to which this Act extends; and as per S.32, the Council, if satisfied that any qualification in para medical subjects granted by an authority outside the territories of the State of Rajasthan affords a sufficient guarantee of the requisite skill and knowledge, may declare such qualification to be a recognized qualification for the purposes of this Act. Thus, institutions imparting training outside the territory of the State of Rajasthan can also be recognised qualification by Council constituted under Act, 2008 but only after declaration U/s 32, it will be considered to be a recognized para-medical qualification U/s 2(h) of the Act, 2008.In the instant cases, diploma/ certificates which the petitioners hold either from JRN University or from other private institutions (supra) in absence of being recognized by Council constituted under Act, 2008, such diploma/ certificate conferred by JRN University or other private institutions, may be registered under Registration of Societies Act or recognized by DGHS or Government of India, cannot be considered as a recognized para-medical qualification under Rules, 2008 or 1965 for the posts of RLT/LT.Consequently, writ petitions as per schedule appended herewith fail and are hereby dismissed. No order as to costs.(Ajay Rastogi), J.K.Khatri/p17/
5966CW09-Fb25Rsrd(45)Lab.Tech.doc
Schedule to Judgment
in CWP-5966/2009 & Cognate cases
***
S.No. CWP Nos. / Name of Petitioners/Versus State & Ors
1.5966/2009 Anand Mishra & Anr
2.8803/2009 Vijay Kr. Bairwa
3.5768/2009 Murarilal Sharma & (17) Ors
4.11601/2009 Pratap Mewara
5.14309/2009 Ram Prasad Meena
6.5387/2009 Yogeshwar Nath
7.6010/2009 Heeralal Sharma & Anr
8.6762/2009 Mubarak Ali
9.7274/2009 Sagar Mal Rewar & (4) Ors.10. 7092/2009 Suresh Kumar11. 7958/2009 Ajay Kr. Sharma12. 8263/2009 Saurabh Chauhan13. 8581/2009 Udayditya Joshi & (2) Ors.14. 13798/2009 Abdul Razzaq Naqvi & (2) Ors
15.13936/2009 Girish Kumar Balai & (2) Ors
16.13986/2009 Manglesh Kumar Carpenter & Anr
17.14072/2009 Jakir Ali
18.14284/2009 Kanhaiya Lal Roat & Anr
19.14384/2009 Madanlal Verma & (4) Ors.20.14472/2009 Mahesh Kumar Singhal & (8) Ors.21.14518/2009 Anil Kumar Yadav & (2) Ors.22.14679/2009 Mohd. Nahid Naqvi & Anr
23.14687/2009 Shaitan Singh Choudhary & (2) Ors
24.14730/2009 Ashok Kumar Sharma
25.14851/2009 Abdul Aleem & Abdul Wahab
26.15023/2009 Ved Prakash Meena
27.15074/2009 Kumari Subhita
28.15879/2009 Shailendra Kumar
29.16123/2009 Tara Chand
30.16127/2009 Kallan Ram Rajput
31.49/2010 Ram Gopal Bairwa & Anr
32.90/2010 Puran Mal Verma
33.8188/2009 Rajendra Pd. Bijarniya & Anr
34.5250/2009 Narendra Goyal
35.13458/2009 Matadin Gurjar & (2) Ors
36.15861/2009 Rajesh Kr. Dhakar
37.9505/2009 Ashok Kr. Sharma
38.14125/2009 Bhanwar Singh
39.14158/2009 Avinash Kr. Saini
40.14667/2009 Yateendra Vyas & (5) Ors
41.15880/2009 Hemant Kr. Deegwal
42.16038/2009 Surendra Kr Dahiya
43.16096/2009 Naresh Kumar
44.5244/2009 Ganesh Sharma
45.5248/2009 Prithvi Raj
Versus State & Ors
(Ajay Rastogi), J.K.Khatri/p17/
5966CW09-Fb25Rsrd(45)Lab.Tech.do |
854ad2da-1058-56aa-a3f1-ecc1e5745a31 | court_cases | Central Administrative Tribunal - DelhiSh. Chhote Lal vs Delhi Development Authority Through on 1 February, 2010Central Administrative Tribunal
Principal Bench
RA No. 20/2010
in
OA No. 2246/2009
New Delhi, this the 1st day of February, 2010
Honble Mr. Justice V. K. Bali, Chairman
Honble Dr. R.C. Panda, Member (A)
Sh. Chhote Lal
(Retd. A.D. Horticulture)
S/o late Sh. Ram Swarup Singh,
B-6/88, Sector 17,
Rohini, Delhi 110 085. Applicant
Versus
1. Delhi Development Authority through
Its Vice Chairman
Vikas Sadan, INA Market,
New Delhi.
2. Vice Chairman,
Delhi Development Authority,
Vikas Sadan, INA Market,
New Delhi.
3. Commissioner (Personal)
Delhi Development Authority,
Vikas Sadan, INA Market,
New Delhi. Respondents
ORDER ( By Circulation)
Justice V.K. Bali, Chairman:We have gone through the grounds of review. The same do not appear to be sufficient to recall/review our order dated 18.08.2009. Dismissed.(Dr. R.C. Panda) (V.K. Bali)
Member (A) Chairman
/naresh/ |
bbd8e240-ba74-51ed-94c7-c8a34e88cbca | court_cases | Punjab-Haryana High CourtState Of Haryana And Another vs Bahadar Chand And Another on 23 December, 2008Author:Rajesh BindalBench:Rajesh BindalIn the High Court of Punjab & Haryana at Chandigarh
R. F. A No. 703 of 2000 (O&M)
Date of decision : 23.12.2008
State of Haryana and another ..... Appellants
vs
Bahadar Chand and another ..... RespondentsCoram: Hon'ble Mr. Justice Rajesh Bindal
Present: Mr. Navneet Singh, Assistant Advocate General, Haryana.
Mr. Amit Jaiswal, Advocate forMr. Ashwani Kumar Bura, Advocate, for the respondents.Rajesh Bindal J.The State has filed the present appeal before this court against the
award of the learned court below passed underSection 18of the Land Acquisition
Act, 1894 (for short, 'the Act') seeking reduction in compensation for the acquired
land.Briefly, the facts of the case are that the State of Haryana vide
notification dated 23.2.1989 issued underSection 4of the Act, acquired the land
situated in village Patti Insar and Patti Magdum Jagdan, Tehsil Panipat, for public
purpose namely for the development and utilisation thereof as residential and
commercial area in Sector-17, Panipat. On reference underSection 18of the Act,
the learned Additional District Judge awarded the compensation @ of Rs. 81/- per
square yard.Learned counsel for the landowners/respondents submitted that the
claim made in the present appeal is squarely covered by the judgment of this court
in Review Application No. 31/CI of 2007 in R.F.A. No. 1379 of 1994-Nand Lal
and others vs State of Haryana and another, decided on 31.8.2007, whereby the
landowners were granted compensation @ of Rs. 139/- per square yard.Learned Assistant Advocate General, Haryana does not dispute the
facts stated by the counsel for the landowners/respondents.Since this court had further enhanced the compensation payable to
the landowners, the present appeal does not survive. Accordingly, for the detailed
reasons stated inNand Lal's case (supra), the same is dismissed.23.12.2008 ( Rajesh Bindal)
vs. Judge |
1929476c-ec9a-53f3-a143-0b89cfbff1e3 | court_cases | Bangalore District CourtS. Sridhar vs A. Hanumantha on 2 January, 2018C.R.P.67 Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgments in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE VIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE (CCH-15) AT BENGALURU
Dated this the 2nd day of January, 2018.
PRESENT:
Sri PATIL NAGALINGANAGOUDA, B.A.,LL.M.,
VIII Additional City Civil and Sessions Judge (CCH-15),
Bengaluru.
ORIGINAL SUIT No.6675/2008
PLAINTIFF : S. Sridhar,
S/o. Late Sampangi Ramaiah,
Aged about 38 years,
Residing at No.120, 2nd Cross,
Jeevanahalli, Cox Town,
Bangalore - 560 005.
(By Sri A. Vijaya Sai, Advocate)
-VERSUS-
DEFENDANT : A. Hanumantha,
S/o. Ayyappa,
Aged about 42 years,
No.118, 7th Cross,
Jeevanahalli Cox Town,
Bangalore - 560 005.
(By Sri V. Sudhakar, Advocate)
---------------------------------------------------------------------
Date of Institution of the Suit : 30-09-2008
Nature of the Suit (Suit on : Injunction Suit.
pronote, Suit for declaration
and possession, Suit for injun-
ction etc,)
Date of the commencement : 07-12-2015
of recording of the evidence
Cont'd..
-2- O.S. No.6675/2008
Date on which the Judgment : 02-01-2018
was pronounced
---------------------------------------------------------------------
Year/s Month/s Day/s
----------------------------------
Total duration : 9 years, 3 months, 2 days.
---------------------------------------------------------------------
(PATIL NAGALINGANAGOUDA)
VIII Additional City Civil and Sessions Judge,
An&/- Bengaluru.
JUDGMENTThis is a suit filed by the plaintiff against the
defendant for relief of mandatory injunction directing
the defendant to remove the constructed pillars in the
area demarcated at Annexure - Q belonging to the
plaintiff which is suit schedule property and to restrain
the defendants from interfering and from encroaching
the property Nos.119 and 120 demarcated and shown at
Annexure - F and to direct the defendant to demolish
Sajja, parapet, wall, gate which the defendant has
encroached upon and constructed illegally at the
portion shown in Annexure - Q which is part and parcel
of the suit schedule property.2. The brief facts of the plaint are as under -Plaintiff has contended that he is the absolute
owner having right, title and interest of the immovable
residential property situated at No.120, 2nd Cross,
Srirama Temple Street, Jeevanahalli Cox Town,
Cont'd..-3- O.S. No.6675/2008
Bangalore having acquired through the partition deed
dated 01-02-1982. Plaintiff has paid taxes on the said
property and he has got the property changed in his
name and Khata certificate was also changed in his
name. It is contended father of the plaintiff has got
schedule property surveyed through the Government
Survey Department and they have issued survey sketch
of the property bearing Nos.120 and 119 together.It is submitted property No.119 belonging to late
Chikkanna i.e., uncle of the plaintiff and on his death,
the same has been devolved on his son Sathish.
Property No.120/1 belonging to late Gowramma and on
her death, devolves on the plaintiff and others and in
the said matter, a suit for partition is pending before the
City Civil Judge (CCH-39) in O.S. No.689/2008 which is
pending for adjudication. Thus, plaintiff and others are
absolute owners of the property bearing Nos.119 and
120 with right, title and interest.It is contended adjoining to the above said
properties and suit schedule property, property No.118
which is situated in the Southern side of the schedule
property belonging to the defendant. Defendant has
recently started constructing in the Southern side of the
suit schedule property and has deviated from his
demarcation of boundaries and encroached on the suit
schedule property and also property Nos.119 and
120/1. This encroachment took place in the last week
of August, 2008 and plaintiff requested the defendant
Cont'd..-4- O.S. No.6675/2008
not to encroach on several occasions, but unfortunately
defendant has deviated from measurement of his
property and encroached into the suit schedule property
belonging to the plaintiff and others. It is contended
property bearing No.118 purchased in two portions and
thereafter got amalgamated and after amalgamation,
defendant has encroached the suit schedule property.
It is contended defendant has made intended
encroachment on the plaintiff's property as shown and
demarcated at the sketches produced by the plaintiff at
Annexures P and Q. Defendant has encroached to an
extent of 2 feet on the Southern side i.e., facing 7th
Cross Road to the rear which is western portion
encroaching 2½ feet which is shown as Annexure - Q.
It is contended defendant along with his workmen,
henchmen, goondas unlawfully and illegally threatened
the plaintiff and his family members and further caused
damage to the suit schedule property on the Southern
side. Though plaintiff approached the police authority,
they have refused to receive the complaint on the
ground dispute is civil in nature. It is contended
plaintiff has submitted representation to the B.B.M.P.
against the defendant. In spite of that they have not
taken any action against the defendant. It is contended
defendant is taking law into his own hands and he is in
hurried manner constructing the building to complete
the same.Cont'd..-5- O.S. No.6675/2008
Plaintiff by way of amendment has contended after
filing of the suit and after obtaining interim order of
status quo, defendant has disobeyed the Court Order
and kept on constructing and further encroached upon
the property shown at Annexure - Q. Even police
authorities have also disobeyed the Court order. Even
B.B.M.P. authorities have not come forward to rescue
the right of the plaintiff. With this submission, plaintiff
prayed to decree the suit.3. On the other hand, in pursuance of summons,
defendant appeared through his Counsel and filed
written statement. Defendant has contended suit of the
plaintiff is not tenable either in law or on facts and it is
liable to be dismissed as plaintiff has filed this suit by
suppressing the material facts. It is contended
defendant acquired immovable property bearing
No.118/1, old No.66 situated at Jeevanahalli Cox Town,
Bangalore measuring East 30 feet, West 30 feet, North
13½ feet and South 13½ feet under registered sale deed
darted 11-06-2008 executed by one Mastan. It is
contended said Mastan has executed rectification deed
on 22-09-2008 rectifying the measurement of the
property. It is contended defendant had acquired
immovable property bearing No.118, old No.66 situated
at Jeevanahalli Cox Town, Bangalore under registered
sale deed dated 23-06-2008 executed by K.
Ramachandra. It is contended said K. Ramachandra
has also executed rectification deed on 19-09-2008 and
Cont'd..-6- O.S. No.6675/2008
accordingly, measurement came to be rectified. It iscontended after purchase of the above said property
under two registered sale deeds, immovable property
Nos.118 and 118/1 together measures East-West 55
feet, North-South 13½ feet and together bounded on
East by road, West by private property, North by
property belonging to the plaintiff and two others and
South by private property. It is contended aforesaid two
immovable properties amalgamated into one property
and have assigned Khata No.118/1. Thus, name of the
defendant is registered as Khathedar of the above said
property which is more fully described as written
statement schedule property.It is contended defendant approached the
authorities of B.B.M.P. for issuance of sanction plan for
putting up residential construction over the written
statement schedule properties and after verifying the
document, local inspection B.B.M.P. has sanctioned
plan. It is contended plaintiff has in fact described the
schedule property in excess to what is the actually
available and actually belongs to the plaintiff. In fact,
plaintiff is not the owner of the immovable property
bearing Nos.119 and 120/1 and as such, he has no
right, title and interest much less any locus standi to
mention the said properties in the present suit. It is
contended plaintiff has played fraud and mischief by
showing wrong measurement and wrong boundaries
knowing fully well that property bearing Nos.119 and
Cont'd..-7- O.S. No.6675/2008
120/1 are no way concerned to him. It is contended
defendant after obtaining sanction plan, put upconstruction of residential house in his property and at
that time, plaintiff with mala fide intention and for
extraction of money started to trouble and harass the
defendant. Defendant filed Caveat Petition before the
Court on 19-09-2008. It is contended in spite of
defendant having filed Caveat, plaintiff having filed suit
on 03-10-2008 and obtained interim order of status quo
and in obedience of the Court order, defendant has
stopped construction in respect of her property Nos.119
and 120 and not in respect of the immovable property
belonging to the defendant bearing No.118/1 as
described in the written statement schedule property, as
such though interim order is in respect of the property
belonging to the plaintiff where actually no construction
is taking place.Defendant has specifically denied he has
encroached 2 feet in the suit schedule property. It is
contended in fact property belonging to the plaintiff is
more than the actual measurement. Even otherwise,
assuming but not conceding the two feet is alleged to be
belonging to the plaintiff, defendant who actually left 3½
feet as set back area is ready to handover the said
extent of 2 feet if this Court or Appellate court were to
render a finding that said 2 feet belongs to the plaintiff
in order to enable the Court to render a finding
defendant is ready for appointment of Court
Cont'd..-8- O.S. No.6675/2008
Commissioner for taking measurement of the property
belonging to the plaintiff and defendant. It is contended
in fact plaintiff is in actual possession of excess land
than what actually is entitled, hence plaintiff is not
entitled for the relief sought for. It is contended
property belonging to the plaintiff bearing No.120
measuring approximately 16 feet x 70 feet which is
situated in between the property bearing Nos.119 and
120/1 and further plaintiff is not residing in the said
property bearing No.20 in as much as the same is
rented out.Defendant by way of amendment has contended
plaintiff and his family members acquired immovable
property bearing No.120, Jeevanahalli, Cox Town,
Bangalore as per schedule 'C' to the registered partition
deed dated 01-02-1982. As per the schedule 'C' to the
partition deed, measurement of the property bearing
No.120 is measuring on the East 65.9 inches, on the
West 65.3 inches, North 22 feet and South 20.6 inches
together with boundaries mentioned there under. It is
contended except the above measurement, plaintiff
cannot described plaint schedule to his whims and
fancies and plaintiff is not the owner in respect of
property bearing No.119, therefore he cannot described
the said property in the schedule. Defendant has
admitted plaintiff is owner of immovable property baring
No.120. Defendant has denied father of the plaintiff got
the schedule property surveyed through the
Cont'd..-9- O.S. No.6675/2008
Government Survey Department and they have issued a
Survey sketch of the property bearing Nos.120 and 119
together. It is contended the very admission of the
plaintiff property bearing No.119 belonging to
Chikkanna and on his death same has been devolved on
his son Sathish, that itself is sufficient to dismiss the
suit as plaintiff has no right to incorporate the property
belonging to said Sathish in schedule to the plaint and
who is not party to the present proceedings. Defendant
has admitted towards South of the immovable property
bearing No.119 belonging to one Sathish, property
bearing No.120 belonging to the plaintiff and property
No.120/1 belonging to one Gowramma and property
bearing No.118 and 118/1 (now amalgamated as
assigned as 118/1) are situated. Defendant further
denied that he has encroached to an extent of 2 feet on
the Eastern side facing 7th Cross Road to the rear which
is Western portion encroaching 2½ feet which is shown
at Annexure - Q. With this submission, defendant
prayed to dismiss the suit.4. On the basis of the above said pleadings of both
the sides, this Court has framed the following -license deed it ha
ISSUES1. Whether the plaintiff proves he is lawful
possession over suit schedule property as
on the date of suit?Cont'd..- 10 - O.S. No.6675/20082. Whether the plaintiff proves defendant
has encroached to an extent of 2 ft. on the
eastern side, i.e. facing 7th cross road to
rear which is the western portion
encroaching 2½ feet as shown at
Annexure-Q?3. Whether plaintiff proves defendant has
encroached on the southern side of suit
property and also property No.119 and
120/1?4. Whether plaintiff proves after filing of this
suit defendant has encroached suit
schedule property as alleged?5. Whether suit is bad for non-joinder of
necessary party?6. Whether plaintiff is entitled for the relief
of Permanent Injunction as sought?7. Whether plaintiff is entitled for the relief
of Mandatory Injunction as prayed?8. What Decree or Order?5. In order to substantiate the averments of the
plaint, plaintiff himself examined as P.W.1 and he has
adduced evidence of one Sagayraj as P.W.2 and got
Cont'd..- 11 - O.S. No.6675/2008
documents marked as per Exs.P.1 to P.47 and closed
his side.6. When case posted for defendants evidence,
defendant himself examined as D.W.1 and got
documents marked as per Exs.D.1 to D.24.7. I have heard arguments from both the sides.8. My findings on the above Issues are as under -ISSUE No.1 - Negative;ISSUE No.2 - Negative;ISSUE No.3 - Negative;ISSUE No.4 - Negative;ISSUE No.5 - Affirmative;ISSUE No.6 - Negative;ISSUE No.7 - Negative;ISSUE No.8 - As per final order,
for the following -REASONS9. ISSUE NOs.1 TO 4 : Since all these Issues are
inter-related with each other, they are being taken up
together for discussion at a stretch in order to avoid
repetition of facts.Cont'd..- 12 - O.S. No.6675/200810. In the written argument, Advocate for plaintiff
has argued plaintiff has filed this suit for relief of
permanent injunction restraining the defendant from
interfering and encroaching over the suit schedule
property and to remove the constructed pillars in the
area demarcated at Annexure - Q belonging to the
plaintiff and thereafter to restrain the defendants from
not to encroach on the property bearing Nos.119 and
120 demarcated and shown at Annexure - F. It is
argued thereafter plaintiff got amended the plaint and
sought relief to demolish Sajja, parapet wall gate wall
which defendant has encroached upon and constructed
illegally at the portion shown in Annexure - Q which is
part and parcel of the schedule property. It is argued at
the inception of filing of the suit, this Court passed an
order of status quo and on the date of filing of the suit,
defendant had only laid the foundation and he had not
constructed the foundation with building. It is argued
defendant by violating the order of status quo erected
pillars constructed the ground floor portion before
building the ground floor portion, defendant obtained
electricity connection without proper inspection. It is
argued plaintiff has produced documents which are
marked as per Exs.P.1 to P.47 including the partition
deed, tax paid receipt, Khata certificate and other
documents to prove lawful possession over the suit
schedule property. It is argued plaintiff has also
established Issue No.2 that defendant has encroached
to an extent of 2 feet on Eastern side i.e., facing 7th
Cont'd..- 13 - O.S. No.6675/2008
Cross road to the rear which is Western portion
encroaching 2½ feet as shown at Annexure - Q. It is
argued though defendant has produced plenty of
records, but defendant has not produced any mother
deed and there are no supportive documents to show
the measurement of the defendant's property as claimed
by the defendant. It is argued even in the cross-
examination, defendant has categorically admitted
about possession of the suit schedule property by the
plaintiff and about encroachment made by the
defendant. With this submission, Advocate for plaintiff
prayed to answer the above said Issues in favour of the
plaintiff.11. On the other hand, in the written argument,
Advocate for defendant has taken contention plaintiff
has stated that he is the owner of the schedule property
describing the schedule property as site Nos.119 and
120 and has described the measurement of the
schedule property East-West : 64.35 feet and North-
South : 72.93 = 71.3/2 feet by combining both the
properties together. It is argued plaintiff has further
alleged defendant has encroached portion of the
schedule property and filed the suit seeking the relief of
permanent injunction as well as mandatory injunction.
It is argued defendant has not violated the interim order
passed by this Court plaintiff taking advantage of the
interim order misinterpreted the interim order and
created nuisance near the written statement schedule
Cont'd..- 14 - O.S. No.6675/2008
property. It is argued the measurement described inthe plaint schedule is in excess when compared to the
actual measurement of site No.120 belongs to the
plaintiff. It is argued plaintiff ascertaining his right over
the suit schedule property on the basis of the partition
deed dated 01-02-1982 and as per the recitals of the
said partition deed, schedule 'C' property is the property
bearing No.120 measurement is shown on the East 65
feet 9 inches, on the West 65 feet 3 inches, North 22
feet and South 20 feet 6 inches together with
boundaries. It is argued except above measurement,
plaintiff cannot describe the plaint schedule as per his
whims and fancies and plaintiff cannot describe
property No.119 as he is not the owner of the said
property. It is argued in order to resist the claim of the
plaintiff, defendant himself examined as D.W.1 and
defendant has produced plenty of records to show that
he has purchased the written statement schedule
property on the basis of two sale deeds and two
rectification deeds. It is argued though plaintiff has
described site No.119 which is no way concerned to the
plaintiff and he had filed the suit only to harass the
defendant. With this submission, defendant prayed to
answer the above said Issues in favour of the defendant.12. It is admitted fact plaintiff has described the
schedule property as under -"All that piece and parcel of the
immovable residential property situated at
Cont'd..- 15 - O.S. No.6675/2008
No.119 & 120, 2nd Cross, Srirama Temple
Street, Jeevanahalli Cox Town, Bangalore -
560 005, measuring East to West : 64.35 ft.,
North to South : (72.93+71.3)/2 ft., and
bounded on the :East by : 7th Cross Road,
West by : Munivenkatappa's Property,
North by : 2nd Cross Road,
Srirama Temple Street,
South by : Property No.118 belonging to
the defendant.It is also admitted fact as per version of the plaintiff, he
acquired the said property through registered partition
deed dated 01-02-1982. There is no dispute as per the
partition deed dated 01-02-1982, schedule 'C' property
allotted to the share of M. Ramaiah @ Sampangiramaiah
who is father of the plaintiff. Admittedly, said partition
deed marked on behalf of the plaintiff as Ex.P.1.
Schedule 'C' property described in Ex.P.1 as under -'C' SCHEDULE
(Property allotted to the share of the
PARTIES OF THE THIRD PART
A portion of premises bearing No.120,
Jeevanahalli, Cox Town, Bangalore-560 005,
and delineated in Green colour in the Plan
annexed to this Deed which is numbered as
No.-II, and bounded on the East by property
Cont'd..- 16 - O.S. No.6675/2008
allotted to the share of Sri Chikkanna; West
by property allotted to the wife of Sri M.
Chandrappa; North by Road and on the
South by Private property and measuring on
the East 65 feet 9 inches; on the West by 65
feet 3 inches; North 22 feet and on the
South 20 feet 6 inches."13. On careful perusal of the property described in
Ex.P.1 which is allotted to share of father of the plaintiff
is entirely different from the property described by the
plaintiff in the plaint schedule. Nowhere in Ex.P.1 it is
mentioned property bearing Nos.119 and 120 are
comprised sites and they are having common
boundaries. On the other hand, property bearing
No.119 is mentioned as 'F' property in Ex.P.1, it is
allotted to share of Lakshmikanth and his family
members. Even in the plaint itself, plaintiff has
contended property bearing No.119 belonging to
Chikkanna i.e., his uncle and after his death, same has
been devolved on his son Sathish. In spite of the above
said pleadings, plaintiff has described the schedule
property as immovable residential property situated at
Nos.119 and 120, 2nd Cross, Srirama Temple Street,
Jeevanahalli, Cox Town, Bangalore for the reasons best
known to him. Even measurement of the property
bearing No.120 shown in Ex.P.1 is not shown in the
plaint schedule. Apart from this, plaintiff has not at all
pleaded he has purchased the schedule property
Cont'd..- 17 - O.S. No.6675/2008
bearing No.119 from the legal heirs of Chikkanna and
thereafter both sites were comprised in one block and
both sites are having boundaries as described in the
plaint schedule. Admittedly, neither Chikkanna nor his
legal representatives are not parties to the present suit
to claim right over the property No.119. Under these
circumstances, at the out set this Court is of the
opinion that plaintiffs have failed to prove above said
Issues in his favour.14. Further, in the plaint plaintiff has contended
defendant recently started construction in the Southern
side of the suit schedule property and has deviated from
his demarcation of boundaries and encroached on the
suit schedule property and also property No.119 and
120/1. Though in the plaint schedule, plaintiff has
contended schedule property is bearing Nos.119 and
120, but he has pleaded plaintiff encroached property
bearing Nos.119 and 120/1 which are no way
concerned to the plaintiff. Though P.W.1 in this regard
has reiterated averments of the plaint, but in the cross-
examination he has categorically admitted property
bearing No.120 has been allotted to share of his father
as per the recitals of Ex.P.1. He has specifically
admitted property which is described as 'C' schedule in
Ex.P.1 has been allotted to share of his father. Though
P.W.1 has denied as per recitals of Ex.P.1 one sketch
which has produced along with Ex.P.1 was also
registered, but as per the recitals it is evident Ex.P.1
Cont'd..- 18 - O.S. No.6675/2008
accompanied with one sketch which discloses which
property fallen to whose share. Admittedly, the said
sketch has not been produced by the plaintiff for the
reasons best known to him. On perusal of contents of
Ex.P.1 wherein it is specifically mentioned 'C' schedule
property is delineated in green colour in the plan
annexed to the deed which is numbered as II. As I have
discussed above, said sketch has not been produced by
the plaintiff, hence it is fatal to the case of the plaintiff.
P.W.1 also admitted as per recitals of Ex.P.1, site
No.120/1 has been allotted to share of Gowramma
which is shown as 'E' schedule. Further, he has
admitted site No.119 has been allotted to share of
Chikkanna and his family members which is shown as
'F' schedule in Ex.P.1. Further, he has admitted the
measurement of the property allotted to his father
shown East 65 feet 9 inches, West 65 feet 3 inches,
North 22 feet and South 20 feet 6 inches. Whereas, in
the schedule he has shown different measurement and
different boundaries.15. In the cross-examination, he has specifically
admitted as per the recitals of Ex.P.1, boundary of the
property allotted to his father shown towards North
there is a road. He has admitted nowhere in Ex.P.1 it is
mentioned there is also road to the property allotted to
his father from Southern side. Further, he has
admitted in Ex.P.1 it is shown towards East of property
No.120 there exist property of Gowramma. In the cross-Cont'd..- 19 - O.S. No.6675/2008
examination, he has admitted he is in the custody of
survey map prepared by competent authority. In
support of his contention, he has produced P.T. sheet
which are marked as per Exs.P.39 and P.40.
Admittedly, in the above said documents, number of the
schedule property has not shown. Simply in the said
document it is mentioned -"¸ÀܽÃAiÀÄ PÉëÃvÀæ ¸ÀASÉå 75, PÁPïìmË£ï ¦.n. ¹Ãmï
£ÀA.112, £ÀUÀgÀ ªÀiÁ¥À£À ¸ÀASÉå 428gÀ ¦üïïØ ¥ÀŸÀÛPÀzÀ £ÀPÀ®Ä"Except the above said contents, nothing has been
written in Exs.P.39 and P.40 in order to show these
documents are pertaining to the schedule property.16. P.W.1 in the cross-examination has also
admitted at no point of time measurement and
boundaries of the property mentioned in Ex.P.1 have
been changed. Further, he has admitted as per the
recitals of Ex.P.1, it is written there is only one entry
from the Northern side of the site No.120 and 120/1.
Further, he has admitted Sathisha and Gowramma are
not parties to the present suit and even they have not
filed any suit against the defendants. Further, he has
admitted in the plaint schedule he has described as Site
Nos.119 and 120. Further, he has admitted he has
described both sites are comprised in one block and he
has shown boundaries of both the sites as they
comprised in one block. Further, he has admitted
Cont'd..- 20 - O.S. No.6675/2008
Sathisha has not given any authorization to him to
include site No.119 in the present case. Further, he has
admitted now Sathisha has constructed a new house in
Site No.119 and said Sathisha is residing in the said
property. Further, he has admitted defendants of the
present case had purchased property Nos.118 and
118/1 prior to filing of this suit. He has also admitted
in Exs.P.39 and P.40, site No.120 has not been shown.
These are the admissions of P.W.1 not helpful to the
case of the plaintiff to prove the above said Issues in his
favour.17. On careful perusal of the documentary
evidence produced by the plaintiff which are marked as
per Exs.P.1 to P.47, those documents are not helpful to
the plaintiff to prove the above said Issues. Ex.P.2 is the
tax paid receipt, Ex.P.3 is the Khata certificate, Ex.P.4 is
the bill issued by the BWSSB, Ex.P.5 is the electricity
bill, Ex.P.6 is holding survey, Ex.P.6 is again Khata
certificate pertaining to site Nos.119 and 120. At the
out set, defendants have not at all denied allotment of
site No.120 to the share of father of the plaintiff under
Ex.P.1, hence contents of those documents not helpful
to the case of the plaintiff. Ex.P.8 is the bill issued by
Balaji Studio. Ex.P.9 is the acknowledgement. Ex.P.10
is the copy of the legal notice. Ex.P.11 is the
acknowledgement. Ex.P.12 is the endorsement issued
by Frazer Town Police Station. Ex.P.13 is the letter sent
by Advocate for the plaintiff with regard to advancement
Cont'd..- 21 - O.S. No.6675/2008
of this case. Ex.P.15 is the copy of the interimapplication. Exs.P.16 and P.18 are copies of the
complaint. Exs.P.14, P.17, P.19, P.20, P.22 and P.23
are the postal documents. Ex.P.21 is again copy of the
complaint. Ex.P.26 is again copy of complaint.
Exs.P.29, P.31, P.33, P.34 and P.35 are the copies of
representations. Contents of those documents not
helpful to the case of the plaintiff. Ex.P.41 are the
sketches prepared by the Advocate for the plaintiff
which are shown as Annexures in respect of property
No.118. Admittedly, above said sketches are marked
with subject to objection. Exs.P.42 and P.43 are again
copies of representations. Ex.P.44 is acknowledgement
issued by the B.B.M.P. Exs.P.45 to P.47 are the
photographs. Those documents are not sufficient for
the plaintiff to prove that he is in lawful possession over
the suit schedule property and defendant has
encroached to an extent of 2 feet on the Eastern side
that is facing 7th Cross Road towards rear which is the
Western portion encroaching 2½ feet as shown at
Annexure - Q and those documents are not sufficient
that defendant has encroached upon the Easter side of
the suit property and also property bearing Nos.119 and
120/1.18. In the cross-examination, P.W.1 has
specifically admitted nowhere in Exs.P.8, P.24, P.26 to
P.28, P.30, P.37 and P.38 as his name has not been
shown. Further, he has admitted he has no idea when
Cont'd..- 22 - O.S. No.6675/2008
exactly survey has been conducted in respect of the suit
schedule property. Further, he has admitted in
Exs.P.39 and P.40, nowhere it is mentioned name of the
owner of the property bearing Nos.118 and 120. He has
also admitted 5 sketches which are marked as per
Ex.P.41 is not proved by any competent authority. He
has also admitted as per contents of sketch No.4 which
is marked as per Ex.P.41 he has shown already
encroachment has taken place. So, admittedly Ex.P.41
sketches have been produced as on date of filing of the
suit. In one breath plaintiff has contended during
pendency of the suit defendant has encroached the suit
schedule property and in another breath he has taken
contention as on the date of filing of the suit defendant
has already encroached portion of the suit schedule
property. Further, he has admitted though one Sathish
is owner of property bearing No.119, he has shown the
said property in the plaint schedule along with the
property No.120. These are the admissions of P.W.1 are
fatal to the case of the plaintiff and plaintiff is not able
to prove the above said Issues in his favour.19. Plaintiff has adduced evidence one Sagayraj as
P.W.2. In his evidence, P.W.2 has deposed plaintiff is
the owner of the property bearing No.120, 2nd Cross,
Srirama Temple Street, Jeevanahalli, Cox Town,
Bangalore which is the suit schedule property. Further,
he has deposed defendant is the owner of adjacent
property bearing No.118 situated on the Eastern side of
Cont'd..- 23 - O.S. No.6675/2008
the schedule property. Further deposed defendantstarted constructing the residential building in property
No.118. While laying the foundation he started putting
pillars by breaking the plaintiff's Southern side wall and
encroached on plaintiff's property to an extent of 2 feet
on the 7th Cross Road site and extended up to 66 feet
and at the rear end, defendant has encroached 2½ feet
as shown at Annexure - Q before this Court. P.W.2
further deposed complaint has been lodged by the
plaintiff with regard to illegal encroachment by the
defendant. In my considered view, this much evidence
of P.W.2 not helpful to the case of the plaintiff to prove
Issue Nos.1 to 4. Because in the cross-examination
P.W.2 has categorically admitted his house is situated
at a distance of 15 kilometers from the suit schedule
property. Further, he has admitted plaintiff is his close
friend. He has also admitted he has no idea plaintiff
has stated before the Court that he is residing in a
rented premises. Further, he has admitted he has not
at all seen the documents pertaining to the suit
schedule property. He has admitted plaintiff in the
plaint has described the property as Nos.119 and 120.
He has admitted plaintiff is the owner of the property
only in respect of Property No.120 and one Sathish is
the owner of property No.119 and now Sathish is
residing in the said property by constructing 3 floor
building. He has admitted defendant of the present
case has constructed the house in property bearing
No.118 prior to filing of the suit. When that being the
Cont'd..- 24 - O.S. No.6675/2008
case, question of alleged encroachment by the
defendant does not arise. In his evidence he hasdeposed as he has personally seen the encroachment
area that defendant has encroached the schedule
property. Admittedly, nobody has authorized him to
visit the schedule property and to ascertain the alleged
encroachment. These are the admissions of P.W.2 not
helpful to the case of the plaintiff to prove the above
said Issues in his favour.20. On the other hand, in order to resist the claim
of the plaintiff, defendant himself examined as D.W.1.
In his evidence, he has specifically deposed he has
purchased immovable property bearing No.118/1 under
two different sale deeds and under two different
rectification deeds. D.W.1 further deposed authorities
of B.B.M.P. have amalgamated the above said two
immovable properties into one property and assigned
Khata No.118/1 which is more fully described as
written statement schedule property. Further, he has
deposed he had approached the concerned authority
obtained sanction plan and put up residential building
over the written statement schedule property. He has
specifically deposed plaintiff in fact described the
schedule property in excess to what is actually available
and actually belonging to the plaintiff. He has deposed
schedule property described is incorrect and plaintiff
has played fraud and mischief upon the Court and
suppressed the material facts. He has categorically
Cont'd..- 25 - O.S. No.6675/2008
deposed he has not at all violated the order of the Court
as alleged by the plaintiff. Further, he has deposed
neither Gowramma nor Sathisha have filed any suit
against him with an allegation that he has encroached
their property. Evidence of D.W.1 supported by
documentary evidence produced by the defendant which
are marked as per Exs.D.1 to D.24. Though D.W.1
cross-examined at length, nothing has been brought on
record to disbelieve his evidence. It is settled principles
of law that plaintiff who approaches the Court he has to
prove his case independently by adducing cogent,
material and corroborative evidence and he cannot
stand on the weakness defence of the defendant.
Defendant has produced original sale deeds,
rectification deeds, Khata certificate, Khata extract,
approved plan, tax paid receipts. Contents of those
documents helpful to the case of the defendant to resist
the claim of the plaintiff.21. At this juncture, it is relevant to mention that
it is settled principles of law that plaintiff cannot stand
on the weakness defence of the defendant. Even
assuming defendant has failed to establish contention of
the written statement, it is not a ground for the plaintiff
to prove his case. Plaintiff has to prove his case
independently by adducing cogent, material and
corroborative evidence. In view of the above, plaintiff
has failed to prove his case on his own, hence he cannot
stand on the weakness defence of the defendant. In
Cont'd..- 26 - O.S. No.6675/2008
view of the above, my answer to above Issues are in
negative.22. ISSUE No.5 : As rightly contended by the
defendant, this suit is bad for non-joinder of necessary
party because though in the plaint schedule property
number is shown as 119 which belongs to Sathisha as
per the say of the plaintiff, said Sathisha is not a party
to the suit. Hence, my answer to above Issue is in
affirmative.23. ISSUE NOs.6 AND 7 : Since plaintiff has failed
to prove material Issues, certainly plaintiff is not
entitled for the relief of permanent injunction as well as
relief of mandatory injunction. Hence, my answers to
above Issues are in negative.24. ISSUE No.8 : For my reasons and discussion
on the above Issues, I proceed to pass the following -ORDER
Suit filed by the plaintiff against the
defendant is hereby dismissed with cost.Draw decree accordingly.(Dictated to Judgment Writer, transcribed by him,
revised by me and after corrections, pronounced in open
Court on this the 2nd day of January, 2018.)
(PATIL NAGALINGANAGOUDA)
VIII Additional City Civil and Sessions Judge,
An&/- Bengaluru.Cont'd..- 27 - O.S. No.6675/2008
ANNEXURE1. WITNESS EXAMINED FOR THE PLAINTIFFS:Examined on:P.W.1 : S. Sridhar 07-12-2015
P.W.2 : Sagayaraj A. 06-09-20162. DOCUMENTS MARKED ON BEHALF OF PLAINTIFFS:Ex.P.1 : Certified copy of partition deed
dated 01-02-1982.Ex.P.2 : Tax paid receipt.
Ex.P.3 : Khata certificate.
Ex.P.4 : Receipt issued by the BWSSB.
Ex.P.5 : Electricity bill.
Ex.P.6 : Hiduvali certificate.
Ex.P.7 : Khata extract.
Ex.P.8 : Khata certificate.
Ex.P.9 : Acknowledgement.Ex.P.10 : Copy of notice dated 16-10-2008.
Ex.P.11 : Another acknowledgement.
Ex.P.12 : Endorsement issued by Frazer Town police
Ex.P.13 : Office copy of notice dated 28-10-2008.
Ex.P.14 : Postal receipt.
Ex.P.15 : Copy of application filed in
O.S. No.6675/2008.Ex.P.16 : Copy of complaint.
Ex.P.17 : Postal receipt.
Ex.P.18 : Copy of notice dated 05-12-2008.
Ex.P.19 : Postal receipt.
Ex.P.20 : Postal acknowledgement.
Ex.P.21 : Copy of notice dated 05-12-2008.Cont'd..- 28 - O.S. No.6675/2008
Ex.P.22 : Postal receipt.
Ex.P.23 : Postal acknowledgement.
Ex.P.24 : Receipt issued by Photo Centre.
Ex.P.25 : Bill issued by photographer.
Ex.P.26 : Copy of application/complaint.Exs.P.27 : Receipt issued by Photo Centre.and P.28
Ex.P.29 : Copy of complaint.
Ex.P.30 : Receipt issued by Photo Centre.
Ex.P.31 : Copy of complaint.
Ex.P.32 : Receipt issued by Photo Centre.Exs.P.33 : Copies of notices/complaints.
to P.35
Ex.P.36 : Acknowledgement issued by police.
Exs.P.37 : Receipts issued by Photo Centre.
and P.38
Exs.P.39 : Certified sketches issued by Land Records.and P.40
Ex.P.41 : Sketches.Exs.P.42 : Copies of complaint filed to police.
and P.43
Ex.P.44 : Acknowledgement issued by BBMP.
Exs.P.45 : Photographs.
to P.47
Exs.P.45(a) : Negatives of Exs.P.45 to P.47.
to P.47(a)3. WITNESS EXAMINED FOR THE DEFENDANTS:D.W.1 : A. Hanumanthappa 28-01-20174.DOCUMENT MARKED ON BEHALF OF DEFENDANTS:Ex.D.1 : Certified copy of partition deed
dated 23-01-1982.Cont'd..- 29 - O.S. No.6675/2008
Ex.D.2 : Certified copy of sale deed
dated 11-06-2008.
Ex.D.3 : Certified copy of sale deed
dated 22-09-2008.
Ex.D.4 : Sale deed dated 23-06-2008.
Ex.D.5 : Sale deed dated 19-09-2008.
Ex.D.6 : Order dated 15-09-2008 passed by BBMP.
Ex.D.7 : Khata extract.
Ex.D.8 : Khata certificate.
Ex.D.9 : Approved plan issued by BBMP.
Exs.D.10 : Photographs
to D.15
Ex.D.16 : C.D. said to have contained Exs.D.10 to 15
Exs.D.17 : 2 Tax paid receipts.
and D.18
Ex.D.19 : Approved plan issued by B.B.M.P.
Exs.D.20 : 4 photographs.
to D.23
Ex.D.24 : C.D. said to have contained Exs.D.20 to 23
(PATIL NAGALINGANAGOUDA)VIII Additional City Civil and Sessions Judge,
An&/- Bengaluru.Cont'd.. |
3d7ad380-efe5-580e-8d3c-d77f598e0545 | court_cases | Gujarat High CourtEmployees Provident Fund Organisation ... vs Faze Three Limited & on 26 November, 2015Bench:Jayant Patel,Vipul M. PancholiC/LPA/1050/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1050 of 2015
In SPECIAL CIVIL APPLICATION NO. 5713 of 2014
With
LETTERS PATENT APPEAL NO. 1051 of 2015
In
SPECIAL CIVIL APPLICATION NO. 3911 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE ACTING CHIEF JUSTICE MR. JAYANT PATEL
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
==========================================================
1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the
fair copy of the judgment ?
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any order
made thereunder ?
==========================================================
EMPLOYEES PROVIDENT FUND ORGANISATION &
1....Appellant(s)
Versus
FAZE THREE LIMITED & 1....Respondent(s)
==========================================================
Appearance:
MS E.SHAILAJA, ADVOCATE for the Appellant(s) No. 1 - 2
MR DEEPAK DAVE, ADVOCATE for the Respondent(s) No.1
==========================================================
CORAM: HONOURABLE THE ACTING CHIEF JUSTICE MR.
JAYANT PATEL
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Page 1 of 11
HC-NIC Page 1 of 11 Created On Tue Dec 01 00:32:59 IST 2015
C/LPA/1050/2015 JUDGMENT
Date : 26/11/2015
ORAL JUDGMENT(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. JAYANT
PATEL)1. As in both the appeals common question arises for
consideration, they are being considered
simultaneously.2. Letters Patent Appeal No.1050 of 2015 has been
preferred against the order dated 05.11.2014 passed by
the learned Single Judge of this Court in Special
Civil Application No.5713 of 2014, whereby the learned
Single Judge, for the reasons recorded in the order,
found that no case is made out for interference to the
order passed by the Tribunal under theEmployees
Provident Fund and Miscellaneous Provisions Act, 1952(hereinafter referred to as 'the Act') and the learned
Single Judge dismissed the petition.3. Whereas, Letters Patent Appeal No.1051 of 2015 is
preferred against the order dated 05.11.2014 passed by
the learned Single Judge in Special Civil Application
No.3911 of 2014, whereby, the learned Single Judge,
based on the order passed by the Tribunal, directed
refund of the amount of Rs.88,17,095/- with interest
at the rate of 9% per annum and certain directions
were also issued to the Secretary of the Ministry of
Labour and Employment, Union of India, regarding the
affairs of Regional Provident Fund Commissioner's
office at Surat.4. It may also be recorded that after the order wasPage 2 of 11HC-NIC Page 2 of 11 Created On Tue Dec 01 00:32:59 IST 2015
C/LPA/1050/2015 JUDGMENT
passed by the learned Single Judge in Special Civil
Application No.5713 of 2014, the review application
being Misc. Civil Application No.363 of 2015 was
preferred by the appellant. Similarly, in another
Special Civil Application No.3911 of 2014, the
appellant had also preferred review application being
Misc. Civil Application No.364 of 2015 for review.
But, the learned Single Judge, vide order dated
08.05.2015 below both the applications, dismissed the
review applications. Under the circumstances, the
appellant has also challenged the order passed by the
learned Single Judge below the aforesaid Misc. Civil
Applications in respective Letters Patent Appeal.5. We have heard Mrs. Shailaja, learned counsel
appearing for the appellant and Mr. Deepak Dave,
learned counsel appearing for respondent No.1 company.
So far as respondent No.2 - Tribunal is concerned, it
is a formal party.6. The contention raised on behalf of the appellant
by the learned counsel for the appellant was that the
initial order underSection 7Aof the Act was passed
by the Regional Provident Fund Commissioner in detail
and after considering all relevant aspects. However,
in appeal before the Tribunal being ATA No.126(5) of
2014, without giving sufficient opportunity of
hearing, the order dated 13th February 2014 was passed
by the Tribunal, whereby the order of the Regional
Provident Fund Commissioner was set aside and the
matter has been remanded for fresh inquiry inPage 3 of 11HC-NIC Page 3 of 11 Created On Tue Dec 01 00:32:59 IST 2015
C/LPA/1050/2015 JUDGMENT
accordance with law. Learned counsel submitted that as
per the requirement of the Rule, the Tribunal has to
give appropriate time to the appellant for filing
reply or otherwise. The learned advocate, who
represented the appellant before the Tribunal, did ask
for time but such request was not granted and the
Tribunal rushed up the matter for its decision
immediately on the next date. She submitted that had
the opportunity been given to the appellant, the case
could have been made out for dismissal of the appeal
but such opportunity as was not given, the order was
vulnerable. However, the learned Single Judge did not
consider the said aspect properly and hence this Court
may consider in the present appeal. It was also
submitted that when the Tribunal had passed the order,
the amount of Rs.88,17,095/- was already recovered and
therefore the learned Single Judge, in exercise of his
discretion, ought not to have directed for refund of
the amount but could have said subject to final order
which may be passed after remand. Therefore, to that
extent, the learned Single Judge committed error which
may be considered by this Court in the present appeal.7. Whereas, Mr. Dave, learned counsel appearing for
respondent No.1 company submitted that without
identifying the workers and without compelling the
presence of the contractor, the proceedings were
concluded by the Provident Fund Commissioner. He
further submitted that this Court had directed for
even giving opportunity of cross-examination of the
witness of the Provident Fund Commissioner but no suchPage 4 of 11HC-NIC Page 4 of 11 Created On Tue Dec 01 00:32:59 IST 2015
C/LPA/1050/2015 JUDGMENT
express opportunity was given and therefore the
Tribunal was justified in setting aside the order of
the Provident Fund Commissioner underSection 7Aand
has directed for remand of the matter. He submitted
that the order of remand could not be said to be
illegal. Further, when the Tribunal had set aside the
order of the Provident Fund Commissioner underSection
7A, the recovery, if any made was required to be
refunded and the same has been rightly ordered by the
learned Single Judge. He also submitted that pending
the present proceedings, the recovery with interest at
the rate of 9% per annum was already effected and
matter is pending before the Provident Fund
Commissioner for fresh consideration as ordered by the
Tribunal. Under these circumstances, this Court may
not interfere to the order passed by learned Single
Judge in the present appeal.8. It is undisputed position that the order was
passed underSection 7Aby the Provident Fund
Commissioner. But, at the same time, it is also
undisputed position that this Court in Special Civil
Application No.9730 of 2013, vide order dated
23.09.2013, had specifically directed the Provident
Fund Commissioner to give an opportunity of cross-
examination of the witness i.e. Assistant Provident
Fund Commissioner and thereafter only the matter could
have been proceeded further. The learned counsel for
the appellant during the course of the hearing is not
in a position to show any material from the record of
the Provident Fund Commissioner about the specificPage 5 of 11HC-NIC Page 5 of 11 Created On Tue Dec 01 00:32:59 IST 2015
C/LPA/1050/2015 JUDGMENT
opportunity given for cross-examination of the witness
to the company concerned. However, she only submitted
that after the matter was remanded by this Court in
Special Civil Application No.9730 of 2013, vide order
dated 23.09.2013, the date was fixed and therefore it
should be deemed that the same was for permitting
cross-examination of the witness. When this Court
further inquired as to whether any proceedings are
drawn that the date is fixed for cross-examination of
the witness and on behalf of the company nobody is
present and therefore the right of the cross-
examination is closed or not, the learned counsel
fairly submitted that such proceedings are not drawn.
Under these circumstances coupled with the aspect of
identification of the workman concerned by securing
the presence of the labour contractor, if the Tribunal
has exercised the discretion for remand of the matter
to the Provident Fund Commissioner, such an exercise
of discretion cannot be said to be perverse.9. If the grievance raised for not giving sufficient
opportunity to the learned advocate appearing for the
Provident Fund Commissioner before the Tribunal is
considered, the Tribunal at para 3, has observed thus:"3. The learned Advocate for the Respondent
has opposed the appeal and requested that no
reliefs be granted, since the Appellant was
provided the opportunity which has not been
utilized by the Appellant. The Advocate for
the Respondent has argued that, the Appellant
was provided fullest opportunities to submit
their sayings during the inquiry proceedings
and the order has been passed in conformity
with the statute. Hence requires no reliefs."Page 6 of 11HC-NIC Page 6 of 11 Created On Tue Dec 01 00:32:59 IST 2015
C/LPA/1050/2015 JUDGMENT10. If the matter is considered as it is, it cannot
be said that any request was made on behalf of the
Provident Fund Commissioner before the Tribunal and
such was declined by the Tribunal. If the learned
advocate appearing for the Provident Fund Commissioner
in the proceedings before the Tribunal proceeded
further for making submission, the question of giving
time to file reply as per the rule would be
inconsequential. It is hardly required to be stated
that if both the sides before any forum agree to
proceed with the matter, there is no question of
adjournment or giving further time to any party to the
proceedings. However, the learned advocate appearing
for the appellant by relying upon e-mail communication
of the advocate, who represented the appellant before
the Tribunal, attempted to contend that she had made
demand for adjournment but such time was not granted
and therefore she submitted that the recital in the
judgment of the Tribunal at para 3 may not be
considered as fully correct.11. As such, the so-called e-mail communication is
later to the decision of the Tribunal and not during
the time when the matter was pending before the
Tribunal. Further, even if it is considered for the
sake of examination that she requested for time and
the said time was not granted by the Tribunal, then
also the matter would not end there, more
particularly, when on the aspect of breach of
principle of natural justice law is further developedPage 7 of 11HC-NIC Page 7 of 11 Created On Tue Dec 01 00:32:59 IST 2015
C/LPA/1050/2015 JUDGMENT
to the extent that the prejudice must be
satisfactorily demonstrated on account of the breach
of principle of natural justice. When, as observed
earlier, there were two basic deficiencies in the
order passed by the Provident Fund Commissioner underSection 7A; one for not compelling the presence of the
labour contractor for the purpose of the
identification of the labourer and the another was for
not giving express opportunity of cross-examination,
and if the discretion is exercised by the Tribunal
under such circumstances to remand the matter and when
such exercise is not perverse, it cannot be said that
any prejudice is caused to the appellant, who is
otherwise supposed to act independently as a quasi-
judicial authority. Hence, we find that on such ground
the order of the Tribunal would not be vulnerable.
Apart from the above, the fact remains that this Court
in exercise of the powers underArticle 226or 227 of
the Constitution may not interfere to the order of the
Tribunal unless this Court finds that the discretion
has not been properly exercised by the Tribunal or the
exercise of discretion is perverse. Further, Court may
also decline the entertainment of the complaint for
alleged breach of principle of natural justice when
Court finds that no prejudice is caused on account of
the alleged breach of principle of natural justice.12. The learned counsel for the appellant made a
vague attempt by relying upon the order passed by the
Provident Fund Commissioner on the date fixed after
the matter was remanded by the High Court by
contending that after the order dated 23.09.2013 inPage 8 of 11HC-NIC Page 8 of 11 Created On Tue Dec 01 00:32:59 IST 2015
C/LPA/1050/2015 JUDGMENT
Special Civil Application No.9730 of 2013, the
Provident Fund Commissioner had recorded that on the
date fixed nobody was present on behalf of the company
for cross-examination and therefore he had no option
but to proceed further. She, therefore, submitted that
such may be termed as the proceedings drawn for
closure of the cross-examination. We are afraid such
can be considered as sufficient compliance to the
order passed by this Court. It was for the Provident
Fund Commissioner to give an express notice by fixing
the date for cross-examination of the Assistant
Provident Fund Commissioner and thereafter if none
remained present on behalf of the company, the matter
might stand on different footing and different
consideration but when no such specific notice was
issued or the date was fixed, it could not be said
that the opportunity was given for cross-examination
and there was closure of the cross-examination as
sought to be canvassed. Therefore, we cannot
countenance such an attempt on the part of the learned
counsel for the appellant.13. If the aforesaid aspect is considered with the
reasons recorded by the learned Single Judge while
undertaking the judicial scrutiny of the order of the
Tribunal in the petition preferred by the appellant
being Special Civil Application No.5713 of 2014, we do
not find that any case is made out for interference in
exercise of the appellate jurisdiction of this Court
in Letters Patent Appeal.Page 9 of 11HC-NIC Page 9 of 11 Created On Tue Dec 01 00:32:59 IST 2015
C/LPA/1050/2015 JUDGMENT14. On the merits of the order passed by the learned
Single Judge in Special Civil Application No.5713 of
2014 is concerned, when the Tribunal had set aside the
order of the Provident Fund Commissioner underSection
7Aand the matter was remanded, the refund, if any, in
normal circumstances would be consequential. The
learned Single Judge when had not interfered with the
order of the Tribunal in appeal as per the decision in
Special Civil Application No.5713 of 2014, if the
learned Single Judge directed for refund of the amount
with reasonable interest at the rate of 9% per annum,
such an order could not be said to be erroneous on the
face of it nor it could be said that the same was by
exercise of discretion perverse to the record
nor it could be said as having passed without
jurisdiction. Further, as observed by us hereinabove,
when we have also found that the order passed by the
learned Single Judge in Special Civil Application
No.5713 of 2014 would call for no interference, as a
necessary corollary the another order passed by the
learned Single Judge in Special Civil Application
No.3911 of 2014 would also call for no interference.15. In Special Civil Application No.3911 of 2014 some
observations were made by the learned Single Judge for
holding of inquiry in the office of the Provident Fund
Commissioner, Surat. However, the learned counsel for
the appellant has stated that the inquiry is already
held. Under these circumstances, no further
observation deserves to be made except leaving to the
discretion of the authority to consider the matter inPage 10 of 11HC-NIC Page 10 of 11 Created On Tue Dec 01 00:32:59 IST 2015
C/LPA/1050/2015 JUDGMENT
accordance with law.16. In view of the above, no case is made out for
interference. Hence, both the appeals are meritless
and therefore dismissed.(JAYANT PATEL, ACJ.)
(VIPUL M. PANCHOLI, J.)
JaniPage 11 of 11HC-NIC Page 11 of 11 Created On Tue Dec 01 00:32:59 IST 2015 |
838debf3-52e0-598d-bc08-291971d2e072 | court_cases | Central Information CommissionMr.Sanjeev Kumar vs Government Of Nct Of Delhi on 24 May, 2011CENTRAL INFORMATION COMMISSION
Club Building, Opposite Ber Sarai Market,
Old JNU Campus, New Delhi - 110067.
Tel: +91-11-26161796
Decision No. CIC/SG/A/2011/000727/12494
Appeal No. CIC/SG/A/2011/000727
Appellant : Mr. Sanjeev Kumar
A -201, Rajasthan Appartment
Plot No. 36, Sector - 4 Dwarka,
Delhi
Respondent : Dr. B. M. MishraPIO & SDM(Narela)
Revenue Department, GNCTD
O/o the SDM Narela
MPCC Building, Nayabass,
Narela, Delhi
RTI application filed on : 03/09/2010
PIO replied : 05/10/2010
First Appeal filed on : 03/11/2010
FAA's Order : 29/11/2010
Second Appeal filed on : 27/02/2011
Hearing Notice Issued on : 25/04/2011
Date of Hearing : 24/05/2011
Information Sought:-The appellant wants the information about the following:-1) During consolidation proceedings of Village Pooth Khurd, please intimate me from which date and
under which section/clause of East Punjab Consolidation of Holdings Act, 1948 etc, the allotment of
residential plots started. Please give me clear point wise reply.2) During consolidation proceedings of Village Pooth Khurd, please intimate me from which date and
under which section/clause of East Punjab Consolidation Act, 1948 etc, the allotment of industrial plots
started. Please give me clear point wise reply.3) I sold my agricultural land 1/3 share of Khasra Nos. 111/5/2 (0-13), 18/2 (2-08), 23 (4-08) (Copy
enclosed) to a Private Limited Company on 24/2/1999, who is not related to the village. Please intimate
me as to whether a plot could be allotted to aforesaid company during process of consolidation of village
Pooth Khurd. If yes, please provide me the certified copy of same policy, scheme, Act or clause etc...Reply from the PIO:-The appellant was provided with the following replies:-In view to 1) - The allotment of Residential plot of village Pooth Khurd was started from 18/3/99 to
5/5/99 under section 21(1) of the East Punjab Consolidation of Holding Act, 1948.
In view to 2) - Same as above.In view to 3) - The allotment made to the applicant during the repartitionu/s 21(1)of the East Punjab
Holdings Consolidation and Prevention of Fragmentation) Act 1948 by the then Consolidation Officer as
per Scheme of village Pooth Khurd. The copy of the scheme of the village can be obtained after
depositing of required fee as prescribed inRTI Act, 2005.Grounds for First Appeal:Information provided is misleading, concealment of facts and evasive which required investigations.
FAA's Order:-On perusal of the records , it is found that the PIO/SDM(NL) has furnished the requisite information to
the appellant.Appeal is disposed off. Ordered accordingly. All concerned may be informed. If the appellant is not
satisfied with this order, he may file 2nd Appeal in CIC.Grounds for Second Appeal:The information provided by the PIO is incomplete and evasive.Relevant Facts emerging during Hearing:The following were present
Appellant: Absent;Respondent: Mr. Puran Singh, Superintendent on behalf of Dr. B. M. Mishra, PIO & SDM(Narela);The respondent shows that the information has been provided as per available records. The
Appellant is alleging that there are certain irregularities in the department. For this he should take up the
matter at an appropriate forum.Decision:The appeal is disposed.The information available on the records appears to have been provided.
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 perSection 7(6)of RTI Act.Shailesh Gandhi
Information Commissioner
24 May 2011
(In any correspondence on this decision, mention the complete decision number.) (HA) |
4d0f5105-976b-58ba-91e0-8a4c5051b5ab | court_cases | Punjab-Haryana High CourtNarpal Singh vs The Commissioner Hisar Division And ... on 28 September, 1999Equivalent citations: (2000)126PLR151Author:Mehtab S. GillBench:Mehtab S. GillJUDGMENT
Mehtab S. Gill, J.1. The petitioner has filed this petition underArticle 226of the Constitution of India for issuance of a writ in the nature of certiorari for quashing the orders dated 13th June, 1997 (Annexure P-4) passed by respondent No. 2 and 8th October, 1998 (Annexure P-6) passed by respondent No. 1.2. According to the petitioner, he is a political man and holds arms licence No. 1269/AL/Narwana but he never misused his weapon. In spite of this, respondent No. 2-District Magistrate, Jind issued a show cause notice dated 3rd April, 1997 (Annexure P-1) on the basis of report made by the Superintendent of Police and the Sub Divisional Magistrate after an inquiry made by them. He submitted his reply dated 21st April, 1997 (Annexure P-2) to the show cause notice specifically stating therein that he was never convicted or sentenced. However, while considering his reply in a correct perspective, respondent No. 2 passed order dated 13th June, 1997 (Annexure P-4) cancelling his arms licence and appeal filed by him was dismissed by respondent No. 1 vide order dated 8th October, 1998 (Annexure P-6).3. In the written statement filed on behalf of respondents, the following particulars of the cases registered against the petitioner have been given:-(i) F.I.R. No. 173 dated 26th May, 1979 underSection 61/1/14of the Excise Act, Police Station, Tohana in which the petitioner was convicted vide order dated 12th February, 1980;(ii) F.I.R. No. 89 dated 3rd April, 1980, underSections 452/324/506/34I.P.C. Police Station, Kalayat wherein the accused was convicted and sentenced vide order dated 14th November, 1982;(iii) F.I.R. No. 166 dated 7th September, 1982 under Sections 448/325/506/148/149 L.P.C., Police Station City, Jind, wherein the accused was convicted and sentenced vide order dated 2nd August, 1986; and(iv) F.I.R. No. 176 dated 27th June, 1995, underSections 398/452I.P.C. Police Station, Civil Lines, Hisar.4. The respondents have further averred that the order cancelling arms licence of the petitioner was passed after giving him reasonable opportunity of hearing.5. We have heard arguments of Shri R.S. Kundu, counsel for the petitioner and Shri Jaswant Singh, Deputy Advocate General, Haryana and perused the record.6.Section 17of the Arms Act, 1959, which empowers the competent authority to suspend or revoke the licence reads as under:-"17. Variation, suspension and revocation of licences.- (1) The Licensing Authority may vary the conditions subject to which a licence has been granted except such of them as have been prescribed and may for that purpose require the licence holder by notice in writing to deliver-up the licence to it within such time as may be specified in the notice.(2) The Licensing Authority may, on the application of the holder of a licence, also vary the conditions of the licence except such of them as have been prescribed.(3) The Licensing Authority may by order in writing suspend a licence for such periods as it thinks fit or revoke a licence -(a) if the Licensing Authority is satisfied that the holder of the licence is prohibited by this Act or by any other law for the time being in force, from acquiring, having in his possession or carrying any arms or ammunition, or is of unsound mind, or is for any reason unfit for a licence under this Act; or(b) if the Licensing Authority deems it necessary for the security of the public peace or for public safety to suspend or revoke the licence; or(c) if the licence was obtained by the suppression of material information or on the basis of wrong information provided by the holder of the licence or any other person on his behalf at the time of applying for it; or(d) if any of the conditions of the licence has been contravened; or(e) if the holder of the licence has failed to comply with a notice under sub-section (1) requiring him to deliver-up the licence.(4) The Licensing Authority may also revoke a licence on the application of the holder thereof.(5) Where the Licensing Authority makes an order' varying a licence under sub-section (1) or an order suspending or revoking a licence under sub-section (3), it shall record in writing the reasons therefore and furnish to the holder of the licence on demand a brief statement of the same unless in any case the licensing authority is of the opinion that it will not be in the public interest to furnish such statement.(6) The authority to whom the licensing authority is subordinate may by order in writing suspend or revoke a licence on any ground on which it may be suspended or revoked by the licensing authority; and the foregoing provisions of this section shall, as far as may be, apply in relation to the suspension or revocation of a licence by such authority.(7) A Court convicting the holder of a licence of any offence under this Act or the rules made thereunder may also suspend or revoke the licence:Provided that if the conviction is set aside on appeal or otherwise, the suspension or revocation shall become void.(8) An order of suspension or revocation under sub-section (7) may also be made by an appellate Court or by the High Court when exercising its powers of revision.(9) The Central Government may, by order in the Official Gazette, suspend or revoke or direct any licensing authority to suspend or revoke all or any licenses granted under this Act throughout India or any part thereof.(10) On the suspension or revocation of a licence under this section, the holder thereof shall without delay surrender the licence to the authority by whom it has been suspended or revoked or to such other authority as may be specified in this behalf in the order of suspension or revocation."7. A perusal of the record shows that the allegations contained in F.I.R. No. 176 of 1995 registered at Police Station, Civil Lines, Hisar underSections 398/452, Indian Penal Code, suggest that the petitioner had misused his licence inasmuch as he handed over his gun to Shri Sumer Singh and the same was recovered from him. The other cases registered against the petitioner show that he is a person habitual of indulging in criminal activities and there is every possibility that he can endanger the public peace and public safety. He has also been challaned, convicted and sentenced in various cases. In the background of these facts, it is not possible to accept the argument of Shri Kundu that the impugned orders suffer from any error of law warranting interference by the High Court underArticle 226of the Constitution of India.8. For the reasons mentioned above, the writ petition is dismissed. |
008000f8-f150-5e66-9072-fd9aa67df362 | court_cases | Kerala High CourtR. Vasudevan Pillai vs K. Malathy Amma on 12 October, 1987Equivalent citations: AIR1988KER300, AIR 1988 KERALA 300, (1987) 2 KER LT 802JUDGMENT
Sukumaran, J.1. A widow is obstructed in diverse ways, in her attempts at getting what is her legitimate due. All that she wanted was a settlement of accounts and recovery of the money that it legitimately due to her on such settlement. The trial court dismissed the suit, taking the view that the suit as framed is not maintainable. That view was reversed by the appellate court. The appellate court remanded the matter to the trial court, as in its opinion, none of the relevant matters had been considered by the trial court, "in its anxiety to find that the suit as framed is not maintainable." A permission was granted even to amend the plaint seeking recovery of a specific amount from the defendant.2. The judgment of the appellate Court is in challenge in the appeal.3. There is no reason now, when the area is well illumined by decisions, for the ghost of old forms and rigid views to haunt the courts of law. As to how exceptional circumstances would justify invocation of equity principles has been clearly illustrated by the law laid down by the highest Court in the land. Equity jurisprudence is flexible and meets the challenge of new situations without the law; for, as noted in the Current Legal Problems, 1952 Vol. 5, Page 1:"New days may bring the people into new ways of life and give them new outlooks; and with new rules of law."The Supreme Court further clarified that :"Equity is not penalty but justice and even where neither party..... is at fault, equitable
considerations may shape the remedy. ........our equitable jurisdiction is not
hidebound by tradition and blinkered by precedent, though trammelled by judicially approved rules of conscience."The new approach that the courts of law should have in such situations had been dealt with even earlier by the Supreme Court inNarandas v. Papammal, AIR 1967 SC 333. Even when there was no statutory right for the Principal to sue the agent underSection 213of the Contract Act, an equitable right arising under special circumstances enabling the agent to sue the principal was approvingly upheld in that decision.More than a decade prior to that decision, Iyengar J. of this Court, had encapsulated the basic principle in his decision in A.V. George & Co. Ltd. v. Peter Kuruvilla, 1956 Ker LT 466 : (AIR 1957 Trav Co. 264). After noting that the general rule is that the agent is not entitled to an account against his principal, the learned Judge observed :"But this rule is however subject to exceptions in cases in which the relation between the agent and the principal is of a fiduciary character or the transactions between (he parties are so involved and complicated that the right of accounting will alone serve to administer complete justice and where the accounting sought is ancillary 'to the main
purpose of the action."4. It is unfortunate that these decisions and the principles underlying them, had been missed by the Courts below. They have been recently recalled by a Bench decision of this Court in Kerala State Electricity Board v. Marshall Sons &. Co., 1985 Ker LJ 930, to which I was a party. The only further thing then to find out is whether the factual situation in the present case is such as to bring the case within the exceptional circumstances as elucidated in the decisions referred to above.5. For an effective consideration of that aspect of the case, a recapitulation of the bare facts may be helpful.6. Ramahingam Pillai who had virtually settled in Trivandrum for over a long time, had a wife, the plaintiff here for whom he had much attachment. He had a friend, with whom he had extraordinary intimacy, the defendant in the case. Ramalingam Pillai used to make available to the defendant, substantial amounts, from time to time. The defendant had after his association with Ramalingam Pillai, prospered considerably. Whether the prosperity was due to the financial aid emanating from Ramalingam Pillai or whether the defendant's prosperity led to advances or funds to Ramalingam Pillai, it is not necessary at this juncture to decide. In a way it is premature too. The intimate business relationship and an involvement in business and other transactions, is established by irrefutable evidence available in the case. The best evidence on that aspect is the Will left by Ramalingam Pillai himself. Ramalingam Pillai died on 12-3-1975, within two months of the execution and registration of the Will.7. Ramalingam Pillai was aged 64 at that time. He had continuous agony caused by a constant rheumatic complaint. He felt weakness in his limbs and thought it desirable to make provisions in relation to his assets. He refers in endearing terms to his wife as party No. 1 in the will, and had abiding affection for and pride in her. Party No. 2 Vasudevan Pillai, is referred to as a very intimate friend and trustworthy person. The past services rendered by him were acknowledged by the testator. and as regards both he had absolute trust and pride. A
gnawing agony arising out of an indifferent sun. was mentioned us a reason for disinheriting him. His daughter had been given in marriage, and had been adequately provided for. He therefore felt it unnecessary to make further provisions for her under the Will, it is thereafter that under the operative provision, that the testator bequeathed his entire assets including the bank, deposits, other movables, furniture and records in favour of the two. Both were to have equal rights and both were to enjoy the properties.8. The background thus furnished by the Will itself, would posit a fiduciary relationship as, between the two legatees, in relation to the assets of the deceased after his death.9. It may be that many money minded men in a mundane world, make it a habit "to gorge and disgorge" as Conrad would put it. Whenever there is an unjust gorging, or unfair dealing, courts have evolved necessary legal mechanism, to bring about justice between the parties, The device of a constructive trust has been pressed into service quite often. As Cardozo J. stated :"A constructive trust is the formula through which the conscience of equity finds expression."See Beatty v. Guggenheim Exploration Co., ( 1919) 223 New York 380 at 385.Lord Denning introduced this trust concept, in many situations, which to conservative minds, was revolting as opposed to known notions in that field. (See Hussey v. Palmer. (1972) 3 All ER 744 and Eves v. Eves, (1975) 3 All ER 768). The New South Wales Court of Appeal rejected those views. (See Alien v. Snyder. (1977) 2 NSWLR 685 and Griffiths v. Kerkemeyer (1977) 15 ALR 387). There have been academic criticism too on the views of Lord Denning. (See Underhill's Law of Trusts and Trustees. Thirteenth Edition. Page 320 for example.)10. It is however, unnecessary to wander in that area too much, inasmuch as the relationship between co-owners has been referred to in the decisions of the Supreme Court itself, in the present case, the parties to whom Ramalingam Pillai had bequeathed his properties do stand in the position of coowners. That relationship is one of trustee, has been clearly laid down by the decisions of the Supreme Court. The observations were made in the context of a claim of adverse possession between the co-sharers. It was held that a co-owner in possession is a constructive trustee on behalf of the co-owner, who is not in possession. Para 7 of the judgment brings out the idea clearly :"It is well settled that mere non-participation in the rent and profits of the land of a co-sharer does not amount to an ouster so as to give title by adverse possession to the other co-sharer in possession. Indeed even if this fact be admitted, then the legal position would be that Mohd. Bashir and Mohd. Rashid, being co-sharers of the plaintiff, would become constructive trustees on behalf of the plaintiff and the right of the plaint iff would be deemed to be protected by the trustees. The learned counsel appearing for the respondent was unable to contest this position of law. In the present case, it is therefore manifest that the possession of the defendants, apart from being in the nature of constructive trustees, would be in law the possession of the plaintiff."[SeeKarbalai Begum v. Mohd. Sayeed. AIR 1981 SC 77]
If that be so in relation to mere co-sharers, much more stronger would be the fiduciary character of the relationship between the parties as arising in the present case. The background of the antecedent conduct between the parties, the close and intimate relationship which existed between them even during the lifetime of Ramalingam Pillai. the position of confidence and trust which Vasudevan Pillai had occupied vis-a-vis Ramalingam Pillai. and the arrangement which the testator provided for the right and enjoyment in relation to his assets, all bring out a clear case of the strong fiduciary relationship. If that be so a relationship of fiduciary character, justifying a right of accounting would certainly arise as between Vasudevan Pillai and the widow of Ramalingam Pillai. In that view of the matter, there is no scope for interference with the view taken by the lower appellate court. A suit for accounting will be maintainable in the above circumstances.11. The above conclusion, may to some extent obviate possible further steps trial might have been necessary under the order of remand. Whether the plaintiff should resort to such steps by way of abundant caution is a matter for her to decide upon in the light of professional advice received by her.12. Having regard to the circumstances, I would therefore dismiss the appeal with costs here and in the Court below. The trial Court will give priority for an expeditious trial of the suit. The facts, prima facie, make out a harassment against a widow. Even a facility of a car of which the widow was the registered owner, had been withdrawn by the might and influence of the appellant, is prima facie revealed. The court should not be indifferent in such situations which require a helping hand to a vexed litigant. I hasten to clarify that these observations herein do not preclude a fair and proper trial of all the issues on the basis of the evidence to be adduced in the case. |
0e4ce67c-9301-5abc-947a-48a1c3274a99 | court_cases | Madhya Pradesh High CourtAajad Kol vs The State Of Madhya Pradesh on 18 January, 2016MCRC-21108-2015
(AAJAD KOL Vs THE STATE OF MADHYA PRADESH)
18-01-2016
Shri Ashok Kumar Kosta, learned counsel for the applicants.
Shri Rajnish Choubey, learned Panel Lawyer for the
respondent/State.Heard arguments.Perused case diary and material on record.This is the first bail application filed by the applicants underSection
438of the Cr.P.C. for grant of anticipatory bail as they apprehend
their arrest in connection with Crime No. 518/2015, registered at
Police Adhartal, district Jabalpur, against them and the co-accused
persons namely Rampyare alias Mirchi Kol, Raju Kol, Bablu Kol,
Raja Kol and Lallu Kol for the offences punishable underSections
452,147,148,294,323,324and 506 and later added 326 of theIPC.Prosecution allegations are that in the mid-night of 06.07.2015 in
Suhagi Adhartal, the applicants and the co-accused persons threw
stones at the residence of informant Murli Gotiya. Seeing stone-
pelting, the informant and his family members went inside their
house. Thereafter, the applicants and the co-accused persons
entered his house and committed marpeet with him, his brother
Pawan, father Dhaniram and mother Gyarsi Bai with dands and
rocks.Learned counsel for the applicants submits that vide order dated
13.07.2015 passed by the court below the applicants and the co-
accused persons have been granted bail underSection 439of
Cr.P.C. Later, the applicants and the co-accused persons came to
know that the police would file the charge-sheet against them
underSection 326of the IPC. Thereafter, they filed the bail
application underSection 438of Cr.P.C. The court below has
granted the anticipatory bail to the co-accused persons vide the
impugned bail order, but refused to grant the same to the
applicants. Under the circumstances, this bail application is filed by
the applicants. He also submits that the applicants had not
misused the liberty granted to them by the court below. He also
submits that the applicants are permanent residents of Suhagi and
that they do not have any criminal antecedents. He further submits
that as per the medical documents of Dhaniram, he sustained a
fracture which was not detected in the x-ray examination , but it
was detected in the CT Scan, meaning thereby the fracture is hair-
line. He further submits that there is no evidence on record as to
who has caused the said injury to him. Upon these submissions,
learned counsel prays for grant of anticipatory bail to the
applicants.Learned Panel Lawyer opposes the prayer.On due consideration of the facts and circumstances of the case
and the submissions raised on behalf of the parties by their counsel
but without expressing any opinion on merits of the case, I am of
the view that it is a fit case for grant of anticipatory bail to the
applicants with certain conditions. Allowing the application, they
are directed to appear before the Investigating Officer on or before
4.2.2016 for interrogation and submission of documentary proofs of
their permanent residential addresses and contact numbers, if any.
The Investigating Officer is ordered that if he arrests the applicants
in the aforesaid crime, in that event they be released immediately
on bail on their furnishing 'each' a personal bond in the sum of
Rs.20,000/- (Rupees Twenty Thousands Only) with one
solvent surety of the same amount to his satisfaction. Further, the
applicants are directed to abide by the conditions enumerated inSection 438(2)of the Cr.P.C. It is made clear that if any of the
applicants fails to appear before the Investigating Officer on the
stipulated period, then this bail order in respect of him shall stand
automatically cancelled.Certified copy as per rules.(RAJENDRA MAHAJAN)
JUDGE |
96bb2196-6de4-5616-ba2e-1fe696bab0fb | court_cases | Gujarat High CourtIndrajitinh Vijaysinh Solanki & Ors vs The Commissioner Of Labour & Ors on 9 July, 2014Author:Paresh UpadhyayBench:Paresh UpadhyayC/SCA/7447/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 7447 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE PARESH UPADHYAY
================================================================
1 Whether Reporters of Local Papers may be allowed to see Yes
the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ? No
================================================================
INDRAJITINH VIJAYSINH SOLANKI & ORS. ....Petitioners
Versus
THE COMMISSIONER OF LABOUR & ORS. ....Respondents
================================================================
Appearance:
MR. SHALIN MEHTA, SENIOR ADVOCATE WITH
MR. P.C. CHAUDHARI, ADVOCATE for the Petitioners No. 1 - 7
MR. K.M. PATEL, SENIOR ADVOCATE WITH
MR. D.G. SHUKLA, ADVOCATE for the contesting Respondents No. 4 & 5
MR. MIHIR JOSHI, SENIOR ADVOCATE WITH
MR. KUNAN NAYAK, ADVOCATE FOR M/S. TRIVEDI & GUPTA for the
Respondent No.3 - Electricity Company
Page 1 of 32
C/SCA/7447/2014 CAV JUDGMENT
MR YOGEN N. PANDYA, ADVOCATE for the Respondent(s) No. 6 - Chief
Election Officer
MR. RASHESH RINDANI, AGP for the Respondents No.1 & 2 - State
===========================================================
CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY
Date : 09/07/2014
CAV JUDGMENT1. Challenge in this petition is made to the action of the
respondent No.6, who was appointed as Election Officer,
pursuant to the directions of this Court, as contained in the
judgment dated 23.12.2013 recorded on Special Civil
Application No.288 of 2013. Under these circumstances, to
appreciate the controversy in the present petition, the
circumstances leading to filing of Special Civil Application
No.288 of 2013 ('the earlier petition' for short) needs to be
kept in view. It is recorded that the contesting respondent in
this petition is respondents No.4 and 5. In earlier petition also,
the contesting respondents were respondents No.4 and 5.
Respondents No.4 and 5 in both the petitions are the same
persons. The present petition is contested, principally on the
ground of maintainability. The contest is from the respondents
No.4 and 5. Therefore the question of maintainability of this
petition needs to be adjudicated first.2. Mr.K.M.Patel, learned Senior Advocate for respondents
No.4 and 5 has vehemently submitted that, this petition is not
maintainable. According to respondents No.4 and 5, thePage 2 of 32C/SCA/7447/2014 CAV JUDGMENTpetitioners need to file an election petition, or they can avail
an alternative remedy of approaching the Industrial Court as
provided underSection 14Aof the Trade Unions Act, 1926, or
can approach the Civil Court by filing a Civil Suit. Reliance is
placed on number of authorities in this regard, which are
referred hereinafter. In substance, the contest of respondents
No.4 and 5 is that, this Court may not go into the merits of the
matter.3. On the other hand, Mr.Shalin Mehta, learned Senior
Advocate for the petitioners has vehemently contended that,
respondents No.4 and 5 have attempted to frustrate the order
of this Court dated 23.12.2013 in the earlier petition and it was
facilitated by respondent No.6. It is submitted that since
respondent No.6 was acting under the orders of this Court, his
mischief needs closer scrutiny by this Court and the same be
examined by this Court. It is also submitted that, there is no
other remedy to the petitioners, atleast no efficacious remedy
in the facts of this case. On behalf of petitioners also, number
of authorities are cited to counter the authorities relied on
behalf of respondents No.4 and 5.4. Having heard learned advocates for the respective
parties, on the question of maintainability of this petition, and
having gone through the material on record, this Court finds as
under. It is also recorded that, while examining the contention
of maintainability at the instance of respondents No.4 and 5,
the merits of the matter, the locus and interests of
respondents No.4 and 5, are also recorded and discussed,
since they are interwoven.Page 3 of 32C/SCA/7447/2014 CAV JUDGMENT5. The controversy is with regard to the office bearers of the
Electricity Mazdoor Sabha. The said Union represents the
workers of the Torrent Power Limited (erstwhile - the
Ahmedabad Electricity Company Limited). The present
respondents No.4 and 5 were the President and the General
Secretary, respectively, of the said Union, since years and it
was the case of the present petitioners, who were the
members of the said Union that, though the maximum term of
the office bearers of the Union, as prescribed in the
constitution of the Union, and the maximum term as per the
statute, was already over since long, the office bearers i.e.
respondents No.4 and 5, were not holding election of the said
Union, and under these circumstances, a petition was filed
before this Court being Special Civil Application No.288 of
2013.6. The circumstances leading to the filing of the said
petition, the stand of the respective parties therein,
observations, findings and final directions given by this Court
in the said petition, all are relevant, and therefore the entire
judgment of this Court in Special Civil Application No.288 of
2013, dated 23.12.2013 is quoted hereunder."SPECIAL CIVIL APPLICATION NO. 288 of 2013
CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 23/12/2013
CAV JUDGMENT1. The petitioners herein are the members of
Electricity Mazdoor Sabha, a registered union,
who have by filing the present petition prayedPage 4 of 32C/SCA/7447/2014 CAV JUDGMENTfor issuance of a writ or direction to direct
respondent No.2-the Registrar of Trade Unions
to immediately hold the election of the office
bearers of the Electricity Mazdoor Sabha under
its supervision and control to elect new office
bearers for the period 2012 onwards before any
negotiation/settlement with regard to wage
revision is finalised.2. The relevant facts and the contentions of
the parties in light of which the aforesaid
prayer falls for consideration may be set out.3. It is the grievance of the petitioner that
the existing office bearers of the union have
been avoiding the holding of elections which
are due from October, 2012 and for which the
process was required to be started in August-
September, 2012. It is stated that in order
that the elections are held in time, they
addressed letters and representations to the
Deputy Commissioner of Labour on 28.08.2012.Thereafter again on 11.09.2012, a
representation was addressed to the Registrar,
Trade Unions and the Deputy Labour Commissioner
respectively, requesting them to immediately
start the election process and hold elections.
It is further stated in the petition that along
with the aforesaid letter dated 11.09.2012,
list of signatures of 1700 workers out of total
2600 members of the union was forwardedPage 5 of 32C/SCA/7447/2014 CAV JUDGMENTemphasizing immediate holding of elections
which were already due. It is the further case
that individual as well as joint
representations dated 13.09.2012, 25.09.2012,
11.10.2012, 21.12.2012, 24.12.2012, etc., were
addressed to the competent authorities
reiterating the request.3.1 A case is put forth that the elections to
the union are not being conducted deliberately
and it is suspected that the existing office
bearers may unauthorisedly enter into
settlement with respondent No.3 Company
regarding wage revision against the interest of
the workers' community at large. In this
context it was submitted that the settlement
has to be arrived at with proper representation
of the workers and after proper negotiations.
It was submitted that unless the negotiation
for settlement are undertaken by and through
the duly elected representatives of the union,
the workers' rights and interests may suffer in
ultimate analysis. It was submitted that the
holding of elections without any delay and in
the free and fair manner was thus necessary.3.2 Respondent Nos.4 and 5 being the President
and the General Secretary of the union filed
their affidavit-in-reply dated 23.01.2013, and
contended that the petitioners have wrongly
stated that they were the members, as they havePage 6 of 32C/SCA/7447/2014 CAV JUDGMENTbeen suspended for 10 years by the union in its
Annual General Meeting. It was stated that the
union had arrived at settlement with the
Company in the interest of the workers. It was
stated that the Executive Committee members of
the respondent union in its meeting held on
28.08.2010 before the last election had
unanimously decided to resolve that the tenure
of the next elected Executive Committee wouldbe upto 31.12.2012. Respondent Nos.4 and 5further stated that they were elected in July,
2007 and again in 2010 and during their tenure,
the settlement in question was arrived at, they
having negotiated with the Company. With regard
to holding of elections it was averred that
Annual General Meeting was convened on
24.12.2012 and another Meeting in connection
with the election of the office bearers was
convened on 29.12.2012 and in that regard
respondent No.2-Registrar of Trade Unions was
intimated by letter dated 22.12.2012.3.3 Respondent No.3 Company responding to the
petition filed affidavit-in-reply dated
19.01.2013 and inter alia opposed the case of
the petitioners, stating in paragraph 9 of the
petition that the petition is an attempt to
disturb industrial peace prevailing in the
respondent Company. It was contended that
Electricity Mazdoor Sabha is a trade union
different from its office bearers and there canPage 7 of 32C/SCA/7447/2014 CAV JUDGMENTbe no bar to negotiations with the union. It
was contended that the petition involved
dispute amongst the members of the union. It
was further contended that the Company had
entered into settlement with trade union on
22.03.2010 underSection 18(1)read withSection 2(p)of the Industrial Disputes Act,
1947 which was arrived at in course of
conciliation proceedings and the period of said
settlement was from 01.04.2009 to 31.03.2013.
Since the period of operation of the settlement
came to end on 31.03.2013, the union has raised
fresh demands by its letter dated 10.11.2012.
It is stated that the Company and the union
have been amicably settled the demands by way
of mutual negotiations. The affidavit of the
Company further mentioned that during the
continuance of such negotiations and
deliberations, it received copy of the present
petition to know about the dispute regarding
elections of the office bearers of the union,
therefore, by letter dated 15.01.2013 it
inquired, and said union by letter dated
16.01.2013 clarified that the Samanya Karobari
Samiti in its meeting dated 16.07.2012 and
thereafter in the General Meeting of the union
held on 29.12.2012, resolved that the present
Committee of the office bearers have been
authorised to deliberate and negotiate the
settlement and to hold the election once the
settlement has been arrived between thePage 8 of 32C/SCA/7447/2014 CAV JUDGMENTparties.3.4 Reply affidavit on behalf of respondent
Nos.1 and 2 is also filed in which it is stated
on behalf of Deputy Labour Commissioner that
pursuant to representation of petitioners dated
28.08.2012 and 11.09.2012 regarding holding of
election to the union, the office of the Deputy
Labour Commissioner informed respondent Nos.4
and 5 by letter dated 03.10.2012 that election
process was required to be initiated within
time as the term had already expired. It isfurther stated that as respondent Nos.4 and 5ignored the directions from the office of the
Deponent, a show cause notice dated 18.01.2013
for cancellation of registration of the union
was issued. It was further stated that in theTrade Unions Act, 1926there was no provision
for disqualifying the office bearers of the
union for not holding the election timely.3.5 The respective parties filed their
rejoinder affidavits and sur-rejoinder
affidavits. Respondent Nos.4 and 5 denied that
1700 members had joined the petitioners in
requesting for holding of immediate election as
claimed. The pleadings contained allegations
and counter-allegations in this regard. With
regard to the Meeting dated 29.12.2012 it was
the case that the said Meeting was called
pursuant to notice dated 14.12.2012. In that itPage 9 of 32C/SCA/7447/2014 CAV JUDGMENTwas resolved by passing Resolution to give
authority to the existing Committee to
deliberate with regard to the pay-scales. It
was further resolved that the existing
Committee of the office bearers would continue
in respect of negotiating on the new pay-scales
applicable from April, 2013.4. Heard learned advocate Mr.T.R. Mishra for
the petitioners, learned senior counsel
Mr.Mihir Joshi appearing for M/s.Trivedi and
Gupta with learned advocate Mr.K.B. Nayak for
respondent No.3 and learned advocate Mr.D.G.
Shukla for respondent Nos.4 and 5. Learned
Assistant Government Pleader appeared on behalf
of respondent Nos.1 and 2 authorities to assist
the Court.4.1 It was submitted by learned advocate for
the petitioner that attempt to thwart and delay
the election by respondent Nos.4 and 5 was
evident from the facts of the case. It was
submitted that though the term of the office
bearers of the union has been over, the office
bearers have unauthorisedly continued
themselves in the office. By referring to the
affidavit-in-reply of the Company, it was
submitted by learned advocate for the
petitioner that the stand taken by it was
indicative that the Company and the office
bearers are hand-in-glow. He submitted thatPage 10 of 32C/SCA/7447/2014 CAV JUDGMENTelections are overdue and required to be held
under supervision of an independent authority.
He then additionally submitted that the
petitioners are also entitled to participate in
the elections. He submitted that the Resolution
was passed to suspend the petitioners from the
membership, which was not approved by the
Deputy Registrar of Trade Unions, and the same
was cancelled and the petitioners continued to
the members.4.2 In support of his contentions, learned
advocate for the petitioner relied on the
decisions inSharma B.C. and another Vs M.L.
Bhalla and others[AIR 2006 SC 3293] as well as
inNorth Eastern Railway Employees' Union Vs
Third Additional District Judge, Farukhabad[AIR 1988 2117].4.3 Learned advocate Mr.D.G. Shukla for
respondent Nos.4 and 5 submitted that the said
respondent was elected as office bearers of the
Union in the past year also, that they were
instrumental in negotiating the settlement with
the company. The settlement was arrived at for
the period from 01.04.2009 to 31.03.2013, under
which the workers could get the monetory
benefits to their benefit and the total amount
ran into about Rs. 75 crores. On the basis of
affidavit in reply, it was further contended
that in the last election held on 27.09.2010,Page 11 of 32C/SCA/7447/2014 CAV JUDGMENTboth the petitioners also contested the
election to the post of General Secretary but
were not elected.4.4 Learned advocate for the respondent Nos.4
and 5 relied on these decisions to buttress his
contentions: (i) Trilokinath Vs Allahabad
Divisional Branch of All India Postal Workers
Union, Class III, Allahabad [AIR 1957 Allh
234]; (ii) O.P. Gupta Vs Union of India[2001
LLR 125 (Raj)]; and (iii) Tata Workers Union Vs
State of Jharkhand[2002 (III) LLJ 210].4.5 Learned senior counsel shri Mihir Joshi
with learned advocate Mr. K. B. Naik for M/s.
Trivedi and Gupta, appearing for respondent
No.3-company submitted that the anxiety of the
company was to see that the process of
settlement with the workers is not stalled. It
was submitted that three years settlement was
entered into by the Union which was in
particular benefit of he members of the union-
all the workers. It was submitted that the
company was for industrial peace and for
negotiating the settlement, as the period of
earlier one has expired and therefore,
interested to see that the election to the
office bearer of the union are held without
unnecessary delay.5. The Constitution of the Electricity MazdurPage 12 of 32C/SCA/7447/2014 CAV JUDGMENTSabha-respondent Union produced at Annexure-L
at page 25, regarding election to the Union,
rule 35 deals with the election rules. It
contemplates for appointment of selection
officer, providing that such officer shall not
be one having direct or indirect interest with
any candidate or any panel of candidates. The
duties of the election officers are mentioned.
The rules also deal with the manner of voting
and the steps in the election process until
declaration of the results. The terms of office
is provided for 2 years.5.1 From the facts narrated above and the
pleadings and contentions of the respective
parties, certain factual aspects emerged which
could not be disputed. Firstly, the term of the
present office bearers of the respondent-union
already expired in September, 2012. At the end
of the two years term, elections were required
to be held, which are not held. Therefore there
is no gainsaying that the election to the
office bearers of the union is overdue.
Secondly, there has been repeated request not
only by the petitioners, but there has been a
strict intimation from the competent
authorities to the office bearers who are
elected in the last elections and continuing in
office, to start the election process and to
hold the election. On record, its letter dated
18.01.2013 produced at page 82 of thePage 13 of 32C/SCA/7447/2014 CAV JUDGMENTcompilation of the petition, letter from the
Deputy Registrar, Trade Unions wherein a
serious exception is taken for not initiating
the election process and for not holding the
election and to show cause as to why the
registration of the union should not be
cancelled. It further appears, as noted above,
by another letter dated 15.01.2013, the
Registrar Trade Union intimated that the
resolution No. 2 and 3 passed by the Union in
the general meeting dated 29.12.2012 were
cancelled as the elections were not held and
the constitution of the Union was being
violated by not holding the election.5.2 Thirdly, requiring the holding of timely
elections are emphasized in the context of
undertaking and continuing with the
negotiations for settlement of wages, etc.,with the Company. Fourthly, there cannot be two
views that the settlement, etc., and other
matters relating to the rights and interest of
the workers has to be negotiated with the
employer-Company by and through elected
representatives. The elections are therefore
necessary so that the workers can choose their
representatives for the purpose.5.3 In the next place, as coming out from
paragraph 4.7 of affidavit-in-reply on behalf
of respondent Nos.4 and 5, that the executivePage 14 of 32C/SCA/7447/2014 CAV JUDGMENTcommittee members of the respondent-Union at
its meeting held on 28.08.2010 before the last
election, unanimously decided to extend the
tenure of the executive committee upto
31.12.2012. In meeting held on 12.07.2012, it
was resolved by the committee members to submit
the charter of demand for revision of pay
scales as the existing settlement to expire on
31.03.2013. It was also proposed to postpone
the election of the committee members and to
hold the elections after new memorandum of
settlement was arrived at. It was further
intimated that the resolution whereby the
petitioners and other seven members were came
to be suspended was also not approved and it
was further stated that those persons continues
to be the members of the Union. By another
letter dated 05.03.2013, the very authority has
required respondent Nos.4 and 5 to start the
election process stating that the term of two
years was already over.6. A contention was raised by learned
advocate for the petitioner that the
petitioners apprehend seriously that they would
not be allowed to participate, vote and contest
in the election. This grievance is outside the
compass of the basic controversy in the
petition and is beyond the prayers of the
petition. Any dispute, if at all arises or any
objection to the eligibility of the petitionersPage 15 of 32C/SCA/7447/2014 CAV JUDGMENTas members entitled to participate or vote in
or contest the election would be in the nature
of election dispute arising in course of the
election process only, and if such dispute
arises, it would have to be dealt with in
accordance with law and the machinery provided
in law. The apprehension of the petitioners is
accordingly misplaced. Nothing further could be
observed in that regard.7. It was stated that Election Officer has
been appointed, which shows inclination on part
of respondent Nos.4 and 5 to hold the election.
On the other hand, in this regard, learned
advocate for the petitioner took exception and
contended that holding of the election should
be supervised and controlled by independent
Officer and another person independent of any
side should be there to conduct the election.8. Even as per the parties came out with
their pleadings and contentions as above, they
all were in a way unanimous to the extent that
the elections are due and are required to be
held. The contesting parties in course of the
hearing also suggested from their respective
side, the names of the persons who may be the
Election Officer to conduct the elections.
However, the parties could not agree on the
name.Page 16 of 32C/SCA/7447/2014 CAV JUDGMENT9. In the facts and circumstances of the
case, it would be proper and apposite that the
election to the office bearers of the union are
conducted under the supervision of an
independent officer. The election should not
only be held free and fair, but it must seen
that they are held free and fair. Therefore, a
direction in this regard is issued herein.
Since an independent officer is being directed
to be appointed to supervise the election, it
would be in fitness of the things that the
entire initiation of the elections including
the appointment of Election Officer is done by
such officer.9.1 In the context of the scenario emerging as
above, following directions would meet the ends
of justice.(i) The election to the office bearers of the
respondent-Union shall be held within the time
frame provided herein and the same shall be
held under the supervision of an officer to be
appointed by the Deputy Labour Commissioner
from his office.(ii) Such officer shall be other than the
Deputy Registrar, Trade Unions. The exclusion
of the Deputy Registrar, Trade Unions provided
hereinabove, is upon joint request of the
parties and it is clarified that his exclusionPage 17 of 32C/SCA/7447/2014 CAV JUDGMENTdoes not cast anything adverse on the person or
the post.(iii) Such officer shall be named by the
office of Deputy Commissioner of labour within
one week from the date of receipt of this
order. For this purpose, the Registry of this
court shall forward a copy of this order to the
Dy. Commissioner of Labour.(iv) The officer to be appointed as per (i)
above, shall appoint an election officer to
conduct the election to the office bearers of
the Union, from amongst the persons experienced
in holding the Union election. While it would
be open for the supervising officer to take
suggestion from both the sides on the name of
the persons to be appointed as election
officer, the ultimate decision shall be taken
by him and shall be final and binding.(v) The officer concerned shall appoint an
election officer within ten days.(vi) The election officer shall thereafter
immediately proceed to commence the election
process by publishing the preliminary list of
voters. The list of voters shall be displayed
at a proper place. The election officer shall
fix the election schedule wherein time bound
programme for inviting objections to thePage 18 of 32C/SCA/7447/2014 CAV JUDGMENTpreliminary list of voters, considerations of
the objections and publication for final list
of voters shall be provided for.(vii) The time wise stages shall also be
fixed by the election officer in the election
process for conducting the election right from
the stage of filing of nominations, withdrawal
of nominations, scrutiny thereof, publication
of final list of candidates, holding of actual
counting and the declaration of final result,
which shall be having due regard to rules
provided in the constitution of the Union.(viii) The election officer shall complete
the entire election process within a period of
six weeks from the date of his assuming the
charge.(ix) The officer who will be appointed as per
direction Nos.(i) and (ii) hereinabove by the
Deputy Commissioner of Labour shall supervise
the process of election to ensure that the
elections are held in accordance with law and
in free and fair way.10. The petition is allowed in terms of the
directions and observations above."7.1 In above circumstances and pursuant to the above
quoted directions of this Court, the Deputy Commissioner ofPage 19 of 32C/SCA/7447/2014 CAV JUDGMENTLabour, Ahmedabad issued a notification on 28.01.2014, which
also contained the information that, present respondent No.6
is nominated as the Chief Election Officer. It is noted that, the
respondent No.6 is an employee of the respondent Company
and prior to the issuance of the directions by this Court, when
a show was made by the earlier office bearers (respondents
No.4 and 5) that they need to hold the election, at that time
also, said respondent No.6 was the Election Officer.7.2 The supervising officer, as nominated by the Deputy
Commissioner of Labour, pursuant to the above referred
directions, found that, respondent No.6 was acting arbitrarily
and therefore, he removed respondent No.6. Resultantly, the
time limit prescribed by this Court to hold the free and fair
election, could not be complied with and under these
circumstances, the Electricity Company moved this Court by
filing Miscellaneous Civil Application No.1326 of 2014 in
Special Civil Application 288 of 2013. The relevant part of the
order passed on the said application dated 07.05.2014 reads
as under."3. The present Miscellaneous Civil
Application came to be filed by the applicant
company-original respondent No.3 praying that
opponent No.3-Commissioner of Labour and
opponent No.4-Registrar of Trade Unions and
Deputy Commissioner of Labour be directed to
complete the elections within four weeks as
directed in the aforesaid judgment of this
Court.Page 20 of 32C/SCA/7447/2014 CAV JUDGMENT4. Having noticed from the facts stated in the
application that the Election Officer was
abruptly dropped as per the communication
dated 24th February, 2014 aforementioned, this
Court passed order dated 05th May, 2014 inter
alia requiring the said supervisor to file
affidavit and to explain the reasons because
of which he relieved the Election Officer,
more particularly because it amounted to
breach of time bound completion of elections
ordered in the judgment.7. In the facts and circumstances of the case
and in light of the scenario obtained as
above, it is considered trite that opponent
No.3-Commissioner of Labour and opponent No.4-
Registrar of Trade Union ensures that the
elections to the Union are got completed
within six weeks from today in compliance of
the directions by this Court passed in the
main Special Civil Application. The
modification being only that now Opponent
Nos.3 and 4 Authorities shall supervise the
elections directly acting as supervisors in
substitution. Mr.Sisodiya who was as such
unanimously appointed shall continue to act as
Election Officer and shall publish the
election programme on or before 09th May,
2014.8. It is reiterated that it will be the
responsibility of opponent Nos.3 and 4 hereinPage 21 of 32C/SCA/7447/2014 CAV JUDGMENTto ensure that the directions of this Court
and time schedule of the election to be
notified by the Election Officer, as noted
above, are strictly adhered to and the
election shall be completed within six weeks
from today as directed. Directions issued by
this Court in main petition in paragraph 9.1
shall remain binding to the Election Officer
and continue to operate qualified by the order
passed hereinabove.9. The present Miscellaneous Civil Application
is allowed and disposed of in the aforesaid
terms."7.3 Pursuant to the above directions of this Court, election
was held on 02.06.2014 and the results are out. As per the
said result, petitioner No.1 is declared elected as the General
Secretary and petitioner No.7 is declared elected as the
President of the Electricity Mazdoor Sabha. The contesting
respondents No.4 and 5, who were earlier the President and
the General Secretary, respectively, also contested the
election for the same posts, but have lost the confidence of the
majority members of the Union, as evident from the results.
The said result has come on record along with the report of the
Deputy Commissioner of Labour. As per the said result,
petitioner No.7 (Mr.Narendra Bhadoriya) secured 720 votes for
the post of President, while respondent No.4 (Mr.Virabhai
Parmar) secured 516 votes for the said post. For the post of
General Secretary, petitioner No.1 (Mr.Indrajitsinh Solanki)
secured 717 votes, while one Mr.Bharat Jadav secured 706
votes, and the respondent No.5 (Mr.A.P.Solanki) ranked thirdPage 22 of 32C/SCA/7447/2014 CAV JUDGMENTsecuring 569 votes.7.4 The question before this Court now is, as to whether
this election result should be given effect to or not. The hurdle
is created by the respondent No.6 - the Election Officer, who
was appointed pursuant to the directions of this Court, and
who was continued as such by this Court, inspite of his removal
by the supervising authority of the Government. He has held
that, the petitioners No.1 and 7, who are declared elected as
the General Secretary and the President, as noted above, and
who represented the group, which had complained against the
earlier office bearers (respondents No.4 and 5) that though the
term of the office bearers of the Union had expired way back in
the year 2012, they were not holding the election, and
therefore the petition was filed before this Court being Special
Civil Application No.288 of 2013, were not the members of the
Union at all. It is this action of the respondent No.6, which is
questioned in this petition, and it is this petition which is
questioned to be not maintainable by respondents No.4 and 5.
It is this situation, with which this Court is faced with.8. The glaring aspects as emerging from the record are
that, this petition is contested less on merits, more on
maintainability, because respondents No.4 and 5 are also very
sure that they have little less to say on merits, because the say
of the majority of the members of the Union about their
credibility is already reflected in terms, by way of the results of
the election, which is held pursuant to the directions of this
Court. What is submitted by respondents No.4 and 5 is that,
this Court can not entertain this petition, and the newly elected
office bearers need to file election petition, etc. In thePage 23 of 32C/SCA/7447/2014 CAV JUDGMENTmeantime, they, i.e. respondents No.4 and 5, will continue to
function as office bearers of the Union. On further scrutiny it is
found that, the real cause for this contest is that, it is this year
in which, the Union has to negotiate with the Management of
the respondent Company for the wage revision, etc. The stacks
involved in which, as claimed by all, is more than 100 crores of
rupees. Further, such settlement is not on yearly basis. It
comes after three to five years. If this aspect is kept in view,
the picture which emerges is that, it is the insistence of the
respondents No.4 and 5, whose term has expired in
September, 2012 as recorded in the judgment of this Court
dated 23.12.2013 that, it is they and they alone, who should
continue to function as the President and the General
Secretary, until the negotiations with the Management of this
financial stack are concluded. Their say, in substance is that,
though they might have lost the confidence of the majority of
the members of the Union, but let this petition be held to be
not maintainable, and by the time, the elected President and
General Secretary undertake the legal battle, that they were
the members of the Union, respondents No.4 and 5 may
continue to function as the office bearers of the Union. It is this
ingenuinity, which this Court is not inclined to uphold. This
Court further finds that, the effect of accepting the contention
of respondents No.4 and 5 about the maintainability of this
petition, would result in miscarriage of justice, and would also
frustrate the directions given by this Court in the earlier
petition vide judgment dated 23.12.2013. For these reasons,
the preliminary objection raised by respondents No.4 and 5
about the maintainability of this petition, needs to be and is
rejected.Page 24 of 32C/SCA/7447/2014 CAV JUDGMENT9. It needs to be kept in view that, in a case where any
respondent contests the petition on the ground of it being not
maintainable, the Court should be very slow in entertaining
that contention, if ultimately the acceptance thereof is to result
in approving the ingenuinity of the said respondent, or that it
would result in frustrating the directions which are already
given by the competent Court, which, in the facts of this case,
is this Court.10.1 Mr.K.M.Patel, learned Senior Advocate for
respondents No.4 and 5 has relied on the following decisions in
support of his submissions.(i) (2012) 3 SCC 522 - State of Gujarat versus Essar Oil
Limited(ii) (2011) 13 SCC 774 - Supreme CourtBar Association
versus B.D.Kaushik(iii) AIR 1998 SC 1531(1) - A.R. Antulay versus
R.S.Nayak.(iv) AIR 1988 SC 1796 - Birad Mal Singhvi versus Anand
Purohit(v) 2004 (1) GLR 852 - Kanubhai Gulabsinh Parmar
versus State of Gujarat(vi) 2008-II-LLJ 642 - Kathal R.K. Versus Registrar, Trade
Union (Madhya Pradesh High Court)(vii) 2001-I-CLR 459 - Borosil Glass Works Ltd.Employees Union versus D.D. Bambode(viii) 2001-I-LLR 125 - O.P. Gupta versus Union of India(ix) Special Civil Application No.4779 of 2010, dated
27.04.2010 - Sanjay Kishanrao Suple versus State
of GujaratPage 25 of 32C/SCA/7447/2014 CAV JUDGMENT10.2 It is recorded that, though number of authorities, as
quoted above, are cited by learned advocate for the
respondents No.4 and 5, to contest this petition on the ground
of maintainability, none of the authorities deals with the
situation, with which this Court is faced with, which is noted
above, and therefore, none of the authorities will take the case
of the respondents No.4 and 5 any further.11. It is further recorded that, once this petition is
entertained, there is nothing to be adjudicated on merits. The
election of the Union is held under the supervision of the
Authorities of the Government, under the orders of this Court.The election result is placed on record by the Authorities of the
Government. There is no reason not to give effect to the said
election result. Thus, this petition needs to be entertained and
allowed. There are additional reasons to do so. They are as
under.12. So far the respondents No.4 and 5 are concerned, except
that, they were the office bearers of the Union, for the term
which legally expired in the year 2012, beyond that they do
not have any locus. Their vested interest, as briefly touched
above, is evident from the further fact that, they could read
what was written on the wall and therefore, the present
elected office bearers were attacked on all counts. Their
annual subscription was not accepted, and the said
subscription, which is of about Rs.100/- per annum, was forced
to be sent through electronic payment, registered post, etc.
and still it is claimed that they are not the members of the
Union, since they had not paid the annual subscription. TherePage 26 of 32C/SCA/7447/2014 CAV JUDGMENTis ample material on record to show that, since the
subscription was not being accepted, those persons had
moved the Government, and the Government had in turn,
asked the explanation in that regard from the earlier office
bearers (respondents No.4 and 5), and what happened to that
is not further coming on record. Thus, principally, the contest is
that, since the presently elected President and General
Secretary had not paid their annual subscription of Rs.100/-,
they are not the legal members of the Union and therefore,
they could not be the voters, and therefore they could not
have been elected as the President and the General Secretary.
It is this fallacy, which this Court is not inclined to entertain.13. The lack of bonafide of respondents No.4 and 5 does not
end there. Their Plan-B is ready. It is alternatively submitted
that these two persons, along with others, are already
suspended by the earlier office bearers, from the primary
membership. This Court could notice the change of stand of
respondents No.4 and 5 to suit their convenience, during the
course of hearing, since they could not decide as to because
they were suspended therefore their subscription was not
accepted, or that if their non-payment of subscription does not
work, then it is the alternative argument that though they
might have paid the subscription, but since we (respondents
No.4 and 5) had suspended them, therefore they were not the
members of the Union. So far the taking aid to the suspension
of the said two persons is concerned, it needs to be rejected
with serious criticism, since it is tainted with lack of bonafide of
respondents No.4 and 5 on more than one counts. Firstly, the
cause to suspend them was that, since the office bearers were
not holding election, they were making representations toPage 27 of 32C/SCA/7447/2014 CAV JUDGMENTvarious Authorities and thereby the reputation of the Union is
tainted and therefore, it was necessary to suspend them from
the membership of the Union. The Registrar of the Trade
Unions, who is the competent Authority under the statute to
check such malfunction, is conscious about its implications and
it has already held long back that the said decision can not be
given effect to. The said decision of the Registrar of the Trade
Unions is not challenged by the then office bearers. Further,
the meeting in which, such a resolution is claimed to have
been adopted, was a non-quorum meeting, and in any case,
such a meeting was convened by the persons, who were not
the legal office bearers, since their term had already expired in
September, 2012. The Government Officer nominated by this
Court vide judgment dated 23.12.2013 had, in terms, directed
the present respondent No.6 - the Election Officer, not to act
contrary to the instructions of the Registrar of the Trade
Unions, so far the membership of the petitioners No.1 and 7
are concerned, and inspite of that, the Election Officer has, in
defiance of those instructions, refused to treat the petitioners
as the members of the Union. Under these circumstances, the
present petition came to be filed, to interfere in the action of
the respondent No.6, and this Court, in summer vacation, had
granted protection in favour of the petitioners vide order dated
21.05.2014. The said order is passed after hearing the
respondents, including the respondents No.4 and 5, who
appeared on caveat. Pursuant to the said order, with the
inclusion of the petitioners, election came to be held as per the
directions of this Court dated 23.12.2013, and the final result is
that, the petitioner No.7 and 1 are declared elected as the
President and the General Secretary, respectively. Under these
circumstances, at the stage of final hearing, this Court is facedPage 28 of 32C/SCA/7447/2014 CAV JUDGMENTwith the situation that, in the event, the action of respondent
No.6 is not interfered with, on the ground that let some other
Authority look into it, ultimately, the ill-design of the out going
office bearers will get approval of this Court, though they have
lost the confidence of the majority of the members in the very
election, which was held pursuant to the directions of this
Court. The objection of respondents No.4 and 5 is rejected, on
these additional grounds as well.14. From the above, it is very clear that respondents No.4
and 5 have acted with complete lack of bonafide all
throughout. Further, with due seriousness, it is recorded that,
respondents No.4 and 5 have also tried to portray the
proceedings before this Court and outcome thereof with
disrepute. Specific reference can be made to election
pamphlet at page 162, in the canvassing on behalf of the out
going office bearers against the present petitioners, who
succeeded in the election. The said pamphlet reads that, the
voters may keep in mind that the petitioners are in the fray of
election pursuant to the interim directions of the High Court
and until that case is concluded, which may take one to six
years, ultimately it is the wage revision of the members of the
Union, which will be obstructed. Let the myth of the outgoing
office bearers that they will be able to drag the litigation for
years, may be without succeeding, but surely without loosing
on merits, be disillusioned. It is recorded that, inspite of the
said warning, the results are not to their convenience. It is this
election result, the implementation of which is contested to be
not maintainable by respondents No.4 and 5. Relegating the
petitioners to any alternative remedy would ultimately prove
the said election canvassing to be right which needs to bePage 29 of 32C/SCA/7447/2014 CAV JUDGMENTrejected and curbed with full force. Further, serious view could
have been taken by this Court, and initiation of appropriate
proceedings could also have been considered by this Court,
however this Court has restrained from doing so.15. The stand of the company is that, they can not have any
preference, with whom they will negotiate. Their case is that
whosoever is legal representative of the Union, they will
negotiate with them. The stand of the Company does not need
any mention beyond this.16. It is recorded that, though number of authorities are cited
by both the sides, since this petition is being decided in the
peculiar facts as recorded above and since it is held to be in
continuation of Special Civil Application No.288 of 2013, this
petition is held to be maintainable and therefore, those
authorities are not discussed. As recorded above, on merits,
there is hardly any dispute.17. Considering the totality, this Court finds that, this petition
needs to be entertained and allowed.18. In the result, the following order is passed.18.1 This petition is held to be maintainable and is
entertained.18.2 This petition is allowed.18.3 The action of the respondent No.6 impugned in this
petition is held to be illegal and arbitrary and the same isPage 30 of 32C/SCA/7447/2014 CAV JUDGMENTquashed and set aside.18.4 The action taken report as submitted by the
Registrar of Trade Union - cum - Labour Commissioner, Gujarat
State is accepted, along with election result report annexed
therewith.18.5 The election result as pronounced by the Chief
Election Officer on 03.06.2014 and as submitted to the Deputy
Labour Commissioner, Gandhinagar on 03.06.2014, wherein
the petitioner No.1 is declared elected as the General
Secretary and petitioner No.7 is declared elected as the
President of the Electricity Mazdoor Sabha, in the election held
on 02.06.2014, is accepted and is directed to be given effect
to.18.6 Respondents No.4 and 5 are found to be guilty of
lack of bonafide all throughout and also found to have
attempted, to some extent, to obstruct the administration of
justice, but this Court has restrained itself from initiating any
proceedings against them.18.7 Rule is made absolute. No order as to costs.(PARESH UPADHYAY, J.)
19.1 After this judgment is pronounced, Mr.D.G.Shukla,
learned advocate for the respondents No.4 and 5 has
requested that this judgment be stayed for some time to
enable them to challenge the same, if so advised, before thePage 31 of 32C/SCA/7447/2014 CAV JUDGMENThigher forum.19.2 Considering the totality and also the fact that this
Court has found the respondents No.4 and 5 to be guilty of lack
of bonafide throughout, and further that, they have also
attempted to obstruct the administration of justice, request
made on their behalf, needs to be and is rejected.(PARESH UPADHYAY, J.)
mhdave/3Page 32 of 32 |
7ddab4cb-7957-5242-95c3-54327bb89c56 | court_cases | Bangalore District CourtSmt.Ramamani W/O Chanddrappa vs Smt.Savitha.M. W/O M.K.Shivaram on 10 October, 2017IN THE COURT OF THE LX ADDITIONAL CITY CIVIL &
SESSIONS JUDGE, BENGALURU
(CCH-61)
Dated this the 10th day of October, 2017
:Present:
Sri S.K.Vantigodi, B.A., LL.B.,
LX Addl. City Civil & Sessions Judge,
Bengaluru.
Crl. Appeal. No. 987 / 2016
Appellant :- Smt.Ramamani w/o Chanddrappa
Aged about 53 years
r/o at No.7, 1st Main Road
80th Cross Road, Sahara Layout
Gubbalala Village
4th 'H' Block, BSK 6th Stage
Bangalore-560 061
(Sri K.P.Chandrashekar Reddy, Adv for
appellant)
V/s
RESPONDENT : Smt.Savitha.M. w/o M.K.Shivaram
Aged about 49 years
r/o No.118, 2nd Floor
PWD Quarters
BTS Road
Bangalore-560 027
(Sri K.V.Srinivas Reddy, Adv for Respondent)
JUDGMENTThis appeal is filed U/sec. 374(3) ofCr.P.C., by the Appellant
being aggrieved by the judgment of conviction and sentence passed
2 Crl.A. 987/2016
in CC No.5909/2015 dt.02.08.2016 for offenceu/s 138of N.I.Act on
the file of XX ACMM, Bengaluru.2. The Appellant was the accused and respondent herein was
the complainant before the trial Court and they are referred to as per
the ranks assigned to them before the lower court.3. The brief facts leading to this appeal can be stated as
under:-The complainant and accused were known to each other since
ten years. Under the said close acquaintance, accused approached
the complainant in the month of January 2014 for financial
assistance of Rs.5,00,000/- in order to discharge the hand loans
availed by her from different persons at the time of performing
marriage of her daughter in the year 2011. Considering the request
of the accused, complainant lent hand loan of Rs.5,00,000/- to
accused who received the same with a promise that she will repay
the same within 6 to 9 months. Towards discharge of said amount,
the accused has issued a cheque bearing No.471581 dt.1.12.2014
for a sum of Rs.5,00,000/- drawn on Syndicate Bank, H.Siddaiah
Road branch, Bangalore assuring that the same will be honoured on
3 Crl.A. 987/2016
presentation. Accordingly, the complainant presented the said
cheque on 5.12.2014, which was returned with an endorsement as
"funds insufficient" in the account of accused. Thereafter, the
complainant issued legal notice dt.29.12.2014. In spite of service of
legal notice, the accused neither paid the cheque amount nor replied
the legal notice.As such, the complainant initiated legal proceedings against
the accused for offence punishable U/sec. 138 ofNegotiable
Instruments Act. The learned Magistrate took cognizance and
recorded sworn statement of complainant and registered case
against the accused for offence punishable U/sec. 138 ofNegotiable
Instruments Actand secured the presence of the accused who after
her appearance, denied to plead guilty. Then the complainant
examined herself as PW1 and got marked documents as per Ex.P.1
to Ex.P.6. After recording the statement of accused underSec.313of Cr.P.C., the accused has not lead any defence evidence on her
behalf. Finally, the learned Magistrate after hearing the arguments
on both sides, proceeded to convict the accused for offenceu/s. 138of Negotiable Instruments Act and sentenced her to pay a fine of
Rs.7,60,000/- and in default of payment of fine, accused shall under
4 Crl.A. 987/2016
S.I. for three months, besides awarding compensation of
Rs.7,50,000/- out of the fine amount by passing the impugned
judgment dt.2.8.2016.It is this judgment of conviction and sentence which is now
under challenge by the Appellant/accused on the following grounds:-The impugned judgment of conviction and sentence passed
by the trial court is opposed to the settled principles of law, facts and
probabilities of the case. The learned Magistrate erred in not
appreciating the evidence on record. The judgment of the court
below is based only on presumptions, surmises and conjectures
which are not relevant to the circumstances of the case. Learned
Magistrate grossly erred in holding the accused guilty underSec.138of N.I.Act. The complainant has not produced any materials nor
examined any witnesses to prove the loan transaction. The
complainant in her cross-examination has stated that she has
received blank cheque and further improved her statement that filled
cheque was given, which leads to ambiguity. The complainant has
admitted that she is not having any documents to show that she was
having amount of Rs.5,00,000/- with her. The learned Magistrate
erred in not holding that the complainant had no sufficient means5 Crl.A. 987/2016
and capacity to lend such huge hand loan amount. The learned
Magistrate failed to notice that the complainant did not discharge
initial burden of proving that her source of income to lend such huge
amount. Learned Magistrate erred in not properly appreciating the
oral and documentary evidence in proper perspective. Hence,
prayed to set aside the judgment of conviction and sentence and to
acquit the accused by allowing this appeal.4. After filing of this appeal, notice duly served on the
respondent/complainant who made her appearance through a
counsel. The trial Court records have been secured.5. Heard arguments on both sides.6. Perused the records.7. In the light of the contentions taken up in the memorandum
of appeal, the points that arise for my determination are as follows;-1) Whether the learned Magistrate erred in
not properly appreciating the oral and
documentary evidence available on record
in proper perspective?
6 Crl.A. 987/2016
2) Whether the learned Magistrate erred in
not appreciating the defence set up by the
accused in proper perspective?
3) Are there any grounds to interfere with the
order of conviction and sentence?
4) What order?8. My findings on the above points are as follows:Points No.1 and 2 :- In the Negative
Points No.3 :- Partly in the Affirmative
Point No.4: As per final Order
REASONS9. Point No.1 to 3:- All these points are taken together for
discussion for the sake of convenience and to avoid repetition
of facts. Perused the contents of appeal memo, impugned judgment
of conviction as well as the trial Court records.10. It is the specific case of the complainant that herself
and accused being friends are known to each other since last ten
years. Under her close acquaintance the accused borrowed hand
loan of Rs.5 lakhs in the month of January 2014 from her to
discharge the hand loan and for marriage of her daughter, agreeing
to repay the said amount within six to nine months. When the
7 Crl.A. 987/2016
complainant insisted for repayment of said hand loan amount after
expiry of stipulated period, accused issued a cheque dt.1.12.2014
for Rs.5,00,000/- towards repayment of said hand loan amount.
When the said cheque was presented for encashment, it came to be
dishonoured for want of sufficient funds in the account of accused.
Then the legal notice was issued to accused, but the accused
neither replied the said notice nor paid the cheque amount. As such
the complainant has prayed to take legal action against the accused
for offence punishable underSec. 138of Negotiable Instruments
Act.11. On the other hand, the accused has set up two versions
of defence. It is her first defence that the said cheque in fact was
issued as security in favour of complainant towards chit fund
business. It is the second defence set up by the accused that she
obtained hand loan of Rs.20,000/- from complainant in the year
2000 and she had given the blank signed cheque in question as
security to the complainant, who even after repayment of said loan
amount, has not returned the cheque and in turn misused the same
and got filed this false case stating that the cheque in question was
issued towards repayment of hand loan amount of Rs.5,00,000/-.8 Crl.A. 987/201612. Keeping in mind the rival contentions of both parties, I
have carefully gone through the entire materials placed on record.
Obviously, burden is on the complainant to prove that the cheque in
question was issued towards discharge of existing loan liability. In
this regard, the complainant examined herself as PW1 who in her
evidence has reiterated the averments of complaint. In her evidence
she got marked the cheque in question as Ex.P.1, bank
endorsement as per Ex.P.2, legal notice as per Ex.P.3, postal
receipt and acknowledgement as per Ex.P.4 and 5 and complaint as
per Ex.P.6.13. In the cross-examination she states that her husband is
working as clerk at Vidhanasoudha and getting salary of Rs.25,000/-
p.m. and an amount of Rs.10,000/- would be sufficient to meet the
family expenses in a month. She used to save Rs.15,000/- every
month. She does not remember the date on which she had
advanced loan amount. She had kept cash of Rs.5 lakhs in the
house. Her mother used to pay some amount oftenly to her and she
pooled up said amount given by her mother and the savings amount
and kept the same in the house with an intention to purchase
property. Whenever, her parents and family members get good
9 Crl.A. 987/2016
crops, they used to give an amount of Rs.20,000/- to 50,000/- to her
and she used to save the same since last 4-5 years and kept a sum
of Rs.5 lakhs in the house. She had not obtained any receipt or
other document from the accused for having advanced loan amount.
She admits that the accused had issued blank signed cheque. In the
second breath she says that accused got filed up the cheque in
question and gave it to her. She denied the suggestion that she got
misused the cheque which was given as security while she was
running chit fund business in the year 2000. She denied other
suggestions.14. A careful appreciation of the evidence of PW1 makes it
clear that the accused has not disputed the issuance of cheque as
well as her signature found on Ex.P.1. She also admits service of
legal notice on her. These facts indicate that the cheque in question
was issued by accused towards repayment of hand loan amount.
Though at one breath she admits the suggestion that the cheque in
question was issued in blank, she immediately states that the
cheque in question was filled up by accused and gave it to her. So,
this admission with regard to handing over of blank signed cheque is
stray admission and does not indicate that it was given only as
10 Crl.A. 987/2016
security towards any chit fund business. Because, if at all the
cheque in question was issued in blank as security towards chit fund
business, the accused ought to have replied the notice denying its
averments.15. Even otherwise the accused has not initiated any legal
action against the complainant alleging misuse of cheque by
complainant. Furthermore, the accused has not informed her banker
to stop payment. So, these facts give rise to an inference that the
cheque in question was issued towards repayment of hand loan
amount. Therefore, the facts narrated by PW1 would clearly indicate
that the cheque in question was issued towards repayment of hand
loan amount.16. Though it is contended that the complainant had no
such capacity to lend such huge amount, the said contention is not
substantiated by any material on record. Because, the complainant
offered explanation stating that she used to save an amount of
Rs.15,000/- p.m. besides amount being paid by her mother every
year whenever they get a bumper crop. So, the say of PW1 that she
pooled up an amount of Rs.5 lakhs since last 4-5 years and kept the
same in the house with an intention to purchase property, is
11 Crl.A. 987/2016
believable and reasonable one. Therefore, the evidence of PW1
coupled with contents of Ex.P.1 to 6 is sufficient to believe the case
of complainant. As such, learned Magistrate committed no error or
illegality in appreciating the oral and documentary evidence placed
on record by the complainant.17. On the other hand, in order to rebut the presumption
underSec.138of Negotiable Instruments Act, the accused
examined herself as DW1 who in her evidence has spoken to the
facts that she had borrowed an amount of Rs.20,000/- in the year
2000 by giving Ex.P.1 as security. Though she repaid that amount in
the month of February 2000, the complainant has not returned the
cheque and in turn got filed this false case by misusing the said
cheque. In her cross-examination, she admits that she knows
complainant since several years. She was staying at KSRTC
quarters, 9th Block, Bengaluru from 2000-2010. Her husband is a
retired BMTC Cashier. She performed the marriage of her elder
daughter in the year 2011. She admits that Ex.P.1(a) is her
signature. Hand writing found on Ex.P.1 does not pertain to her. She
admits that the signature found on postal acknowledgement Ex.P.5
pertains to her. She denied the other suggestions.12 Crl.A. 987/201618. On careful appreciation of evidence of DW1, it can be
said that her evidence does not indicate that the cheque in question
was issued only as security towards hand loan of Rs.20,000/-.
Because, if really she had issued Ex.P.1 signed blank cheque as
security while borrowing loan amount of Rs.20,000/- in the year 2000
itself, she would not have kept mum without insisting complainant to
return said cheque till the year 2014. Even she has not approached
police soon after the service of legal notice alleging misuse of
cheque by complainant. So, the conduct of accused in not initiating
any legal action, not replying the legal notice itself indicates that the
cheque in question was not issued as security, but it was issued
towards repayment of hand loan amount of Rs.5,00,000/-.
Therefore, defence set up by the accused is not probable and
believable one.19. Furthermore, in her evidence DW1 has come up with
the defence that the cheque in question was issued as security while
borrowing hand loan of Rs.20,000/- in the year 2000. Whereas, in
the cross-examination of PW1, it is suggested to complainant that
the cheque in question was issued as security while the complainant
was running chit fund business. Both these contentions are contrary
13 Crl.A. 987/2016
to each other and create doubt as to the genuineness of the defence
set up by the accused. So, inconsistent defence set up by the
accused in denying the case of the complainant, indicates that she
intends to overcome the liability of repayment of loan amount in one
or the other way, which she failed in her attempt to disprove the case
of the complainant. Therefore, the accused has failed to rebut the
presumption available underSec.139of Negotiable Instruments Act
in favour of complainant.20. Having carefully appreciated the oral and documentary
evidence available on record, I am of the view that the learned
Magistrate committed no error or illegality in appreciating the oral
and documentary evidence available on record in proper
perspective. Absolutely, there are no reasons to form opinion that
the learned Magistrate failed to attach any importance to the
defence set up by the accused. The learned Magistrate has
appreciated the rival contentions of both the parties in proper
perspective relying on the oral and documentary evidence.
Therefore, the impugned judgment of conviction is in accordance
with the settled principle of law, facts and probabilities.14 Crl.A. 987/201621. Learned Counsel for appellant during the course of
arguments has relied on the following authorities:-1) 2014 AIR SCW 2158 in the case ofJohan K.Abrahan Vs.
Simon C.Abraham and another2) ILR 2009 KAR 172 in the case ofSri A.Viswanatha Pai Vs.
Sri Vivekananda S.Bhat3) 2008 AIR SCW 738 in the case ofKrishna Janardhan Bhat
Vs. Dattatraya G.Hedge4) AIR 2008(NOC) 2327 (Bombay) in the case ofSanjay
Mishra Vs. Ms.Kanishka Kapoor @ Nikki @ another5) IV (2007) BC 211 in the case ofSantosh Manikrao Gundale
Vs. Rameshwar Wamanrao Takand other6) Judgment in Appeal No.772/2016 passed by LXVII City
Civil and Sessions Judge (CCH-68), Bengaluru.I have carefully gone through the above said authorities. I do
admit the proposition of lawlaid down inthe above said authorities.
But the facts involved in the case on hand are entirely different to the
facts involved in the above said authorities. Therefore, theratiolaid
down inthe above authorities is not aptly applicable to the case on
hand.15 Crl.A. 987/201622. However, while imposing such fine, the learned
magistrate has not assigned any reasons. Because, though the
cheque in question was issued towards repayment of hand loan of
Rs.5,00,000/-, the learned Magistrate has sentenced the accused to
pay fine of Rs.7,60,000/- without assigning any reasons to impose
fine amount in excess of cheque amount. Herein this case, the facts
involved indicate that the hand loan transaction has taken place
under the guise of close friendship of complainant with the accused.
Admittedly, the complainant is not charging any interest on the hand
loan amount. The very fact that the complainant has not obtained
any receipt or document as security towards loan transaction itself
indicates that the complainant had no intention to gain any profit or
interest out of the loan transaction. Such being the situation, the
complainant lent such loan amount to accused only to enable her to
discharge her debt incurred towards the marriage of her daughter.
Therefore, the complainant had no intention of making any profit by
advancing such loan amount to the accused. Such being the fact,
there was no reason to impose such fine amount on the accused. As
such, the learned Magistrate erred in imposing fine amount in
excess of cheque amount i.e., fine of Rs.7,60,000/-. Hence, the
16 Crl.A. 987/2016
impugned judgment of conviction and sentence needs to be
interfered with in regard to the quantum of fine imposed on the
accused.23. Furthermore, the thing would have been different if the
learned Magistrate assigned any reasons for awarding
compensation in excess the cheque amount. As such, the learned
Magistrate is not justified in awarding compensation in excess of the
cheque amount without assigning any reasons to that effect. So, on
these facts, I am of the view that the impugned order of sentence
deserves to be interfered so as to modify the fine and quantum of
compensation awarded to complainant. Therefore, considering the
fact that the transaction has taken place between the complainant
and the accused under close friendship, I feel that the accused shall
be directed to pay fine of Rs.5,10,000/- instead of Rs.7,60,000/- as
imposed. Hence, the impugned order of sentence deserves to be
interfered only with regard to quantum of fine and compensation
awarded by learned Magistrate. Hence, impugned judgment of
conviction deserves to be confirmed with by modifying the quantum
of sentence as observed above. Accordingly, I answer point No.1
and 2 in the negative and point No.3 partly in the affirmative.17 Crl.A. 987/201624. Point No.4: In view of my findings on point No.1 to 3, I
proceed to pass the following:ORDER
The appeal filed by appellants U/sec. 374 ofCode
of Criminal Procedureis hereby allowed in part.The impugned judgment of conviction and
sentence passed by the XX ACMM, Bengaluru, in CC
No.5909/2015 dt.02.08.2016 stands modified as under:-Actingu/s. 255(2)of Cr.P.C, the accused is hereby
convicted and sentenced to pay fine of Rs.5,10,000/- for
the offence punishable U/Sec.138of Negotiable
Instruments Act and in default of payment of fine amount,
the accused shall undergo S.I. for a period of three
months.Out of the fine amount, a sum of Rs.5,00,000/- is
ordered to be paid as compensation to the complainant
underSec.357of Cr.P.C., and remaining Rs.10,000/-
shall be appropriated to the government.Send a copy of this judgment to the lower Court
along with LCR.(Dictated to the Judgment Writer, transcribed and typed by him,
corrected and then pronounced by me in the open court on this the 10th day of
October, 2017)
(S.K. VANTIGODI)
LX Addl.City Civil & Sessions
Judge, Bengaluru.Rrt* |
766b50bf-4457-58b6-bb60-3cf43b936fb1 | court_cases | Bombay High CourtThe State Of Maharashtra And Another vs Mohan Bajirao Abhimane on 12 March, 2018Author:Sunil P. DeshmukhBench:Sunil P. Deshmukh{1} fa1998-16
drp
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.1998 OF 2016
1. The State of Maharashtra APPELLANTS
Through - The Collector, Beed
2. The Executive Engineer,
B. I. Division, Beed, District - Beed
VERSUS
1. Ajinath Waku Abhimane RESPONDENTS
2. Laxmibai Ajinath Abhimane,
Both Age - Major, Occ - Agriculture
R/o Dongargan, Taluka - Ashti,
District - Beed
WITH
FIRST APPEAL NO.1999 OF 2016
1. The State of Maharashtra APPELLANTS
Through - The Collector, Beed
2. The Executive Engineer,
B. I. Division, Beed, District - Beed
VERSUS
Vishnu Suryabhan Anarse RESPONDENT
Age - Major, Occ - Agriculture
R/o Dongargan, Taluka - Ashti,
District - Beed
WITH
FIRST APPEAL NO.2000 OF 2016
1. The State of Maharashtra APPELLANTS
Through - The Collector, Beed
2. The Executive Engineer,
B. I. Division, Beed, District - Beed
VERSUS
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{2} fa1998-16
Mohan Bajirao Abhimane RESPONDENT
Age - Major, Occ - Agriculture
R/o Dongargan, Taluka - Ashti,
District - Beed
WITH
FIRST APPEAL NO.2001 OF 2016
1. The State of Maharashtra APPELLANTS
Through - The Collector, Beed
2. The Executive Engineer,
B. I. Division, Beed, District - Beed
VERSUS
Santram Kanhu Anarse RESPONDENT
Age - Major, Occ - Agriculture
R/o Dongargan, Taluka - Ashti,
District - Beed
WITH
FIRST APPEAL NO.2002 OF 2016
1. The State of Maharashtra APPELLANTS
Through - The Collector, Beed
2. The Executive Engineer,
B. I. Division, Beed, District - Beed
VERSUS
Namdev Bajirao Abhimane RESPONDENT
Age - Major, Occ - Agriculture
R/o Dongargan, Taluka - Ashti,
District - Beed
WITH
FIRST APPEAL NO.2003 OF 2016
1. The State of Maharashtra APPELLANTS
Through - The Collector, Beed
2. The Executive Engineer,
B. I. Division, Beed, District - Beed
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{3} fa1998-16
VERSUS
1. Jagannath Dagadu Shende RESPONDENTS
2. Ashok Dagadu Shende
3. Sominath Dagadu Shende
All Age - Major, Occ - Agriculture
R/o Dongargan, Taluka - Ashti,
District - Beed
WITH
FIRST APPEAL NO.2004 OF 2016
1. The State of Maharashtra APPELLANTS
Through - The Collector, Beed
2. The Executive Engineer,
B. I. Division, Beed, District - Beed
VERSUS
Rakhmaji Sakharam Shende RESPONDENT
Age - Major, Occ - Agriculture
R/o Dongargan, Taluka - Ashti,
District - Beed
WITH
FIRST APPEAL NO.2005 OF 2016
1. The State of Maharashtra APPELLANTS
Through - The Collector, Beed
2. The Executive Engineer,
B. I. Division, Beed, District - Beed
VERSUS
Yadav Digamber Abhimane (Died) LRs RESPONDENTS
1. Smt. Anandibai Yadav Abhimane
Age - 75 years, Occ - Agriculture
R/o Dongargan, Taluka - Ashti,
District - Beed
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{4} fa1998-16
2. Ashok Yadav Abhimane
Age - 50 years, Occ and R/o As above
3. Vilas Yadav Abhimane
Age - 45 years, Occ & R/o As above
4. Laxmi Sanjay Jadhav
Age - 41 years, Occ & R/o As above
WITH
FIRST APPEAL NO.2006 OF 2016
1. The State of Maharashtra APPELLANTS
Through - The Collector, Beed
2. The Executive Engineer,
B. I. Division, Beed, District - Beed
VERSUS
Radhabai Govind Pacharne RESPONDENT
Age - Major, Occ - Agriculture
R/o Dongargan, Taluka - Ashti,
District - Beed
WITH
FIRST APPEAL NO.2007 OF 2016
1. The State of Maharashtra APPELLANTS
Through - The Collector, Beed
2. The Executive Engineer,
B. I. Division, Beed, District - Beed
VERSUS
Bhamabai Eshwarlal Waghmare RESPONDENT
Age - Major, Occ - Agriculture
R/o Dongargan, Taluka - Ashti,
District - Beed
WITH
FIRST APPEAL NO.2008 OF 2016
1. The State of Maharashtra APPELLANTS
Through - The Collector, Beed
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{5} fa1998-16
2. The Executive Engineer,
B. I. Division, Beed, District - Beed
VERSUS
Ramdas Dattoba Karande RESPONDENT
Age - Major, Occ - Agriculture
R/o Dongargan, Taluka - Ashti,
District - Beed
.......
Mr. A. M. Phule, AGP for the appellants - State
Mr. C. K. Shinde, Advocate for respondent - claimants
.......
[CORAM : SUNIL P. DESHMUKH, J.]
DATE : 12th MARCH, 2018
ORAL JUDGMENT :1. These first appeals are preferred by the State undersection 54of the Land Acquisition Act, 1894 against common
judgment and award by Land Acquisition Reference Court at
Beed, enhancing compensation for acquisition of lands granted
by the Special Land Acquisition Officer.2. Compensation granted by Special Land Acquisition Officer
for acquisition of lands ranges between Rs.590/- per Are to
Rs.650/- per Are in this group of first appeals.3. The Reference Court has enhanced rate of compensation to
Rs.2000/- per Are for acquisition of lands.::: Uploaded on - 09/05/2018 ::: Downloaded on - 21/05/2018 10:06:13 :::{6} fa1998-164. Learned AGP contends that it cannot be said that with
reference to evidence on record, the extent of enhancement
awarded by reference court is sustainable. It is submitted that
compensation as granted by reference court is excessive and
exorbitant. Evidence on record is insufficient to bear
enhancement in compensation.5. Mr. Phule, learned AGP appearing for appellants - the State
contends that not only that increase in rate of compensation has
been exorbitant, but the land acquisition reference court had
also been in error in granting interest undersection 34of the
Land Acquisition Act, 1894 from the date of possession. He
submits that taking into account two decisions, one by the Full
Bench of this court in the case of "State of Maharashtra V/s Kailash
Shiva Rangari" reported in 2016 (4) ALL MR 513 and the other by
learned Single Judge of this court at Nagpur in the case of "The
State of Maharashtra V/s Ramesh Tukaram Meshram" reported on 2018 (1)
ALL MR 645 wherein it is considered thatsections 28and34of the
Land Acquisition Act are pari materia, the date of grant of
interest and its operation would be governed by decision of the
Full Bench. He, therefore, submits that clauses 3 and 4 of the
impugned award passed by the land acquisition reference court
has been rendered untenable.::: Uploaded on - 09/05/2018 ::: Downloaded on - 21/05/2018 10:06:13 :::{7} fa1998-166. On the other hand, Mr. C. K. Shinde, learned advocate
appearing for the respondents - claimants contends that as a
matter of fact, learned judge of the reference court has been in
error in absolutely disregarding Exhibits-21, 22, the two sale
instances of adjoining village Kada, Taluka - Ashti, District-Beed.
Had those sale instances been taken into account, the claims of
land owners as made in the reference petitions ought to have
been and could have been allowed. He further submits that while
Exhibit-23, a sale instance of 1995 has been taken into account,
the same has been given a treatment working out a lower rate of
compensation in respect of acquired lands. He submits that in
any case, compensation granted under the award impugned in
the first appeals is on lower side than is due to the claimants and
submits that there is no substance in challenge to computation
of valuation of lands.7. Mr. Shinde goes on to submit that claimants' lands had
been taken in possession even before notification undersection
4of the Land Acquisition Act, 1894 had been issued and in the
circumstances, the authorities hitherto had been constrained to
award interest from the date of possession and the same may
not be found fault with.::: Uploaded on - 09/05/2018 ::: Downloaded on - 21/05/2018 10:06:13 :::{8} fa1998-168. Having regard to aforesaid submissions, one may have to
take into account thatsection 4notification for acquisition of
claimants' land had been issued on 24 th July, 2003 and the award
had been made by Special Land Acquisition Officer on 31 st
January, 2008. Sale instance at Exhibit-23 is a sale instance of
11th August, 1995, which is long before notification undersection
4had been issued in respect of acquisition of present lands. The
reference court appears to have considered value of lands with
reference to sale instance under the circumstances works out to
be @ Rs.2000/- per Are and while considering acquisition of
claimants' land rate of valuation of land should undergo 30%
reduction, since sale deed is not in respect of a land which is
immediately abutting the acquired lands. The reference court,
thereafter considered 10% increase in the rate of value of land,
as arrived at would be a reasonable increase and thus has
worked out rate of Rs.2380/- per Are and reduced the same to
Rs.2000/- per Are, since the reference court in group of other
references viz., Land Acquisition References No. 421 of 2010 and
other companion matters had worked out land acquisition rate to
be Rs.2000/- per Are for seasonally irrigated lands, which had
been acquired for construction for village tank No.6 of
Dongargan. The reference court, thus, considered that it would::: Uploaded on - 09/05/2018 ::: Downloaded on - 21/05/2018 10:06:13 :::{9} fa1998-16
be reasonable to grant compensation @ Rs.2000/- per Are to
present claimants as well. The court further, in some of the land
acquisition references considered that present set of claimants
are not entitled to enhanced compensation in respect of trees,
wells and stone bunds.9. Looking at computation of land acquisition compensation
and its rate, as considered by the reference court, it cannot be
said to be in any way erroneous or for that matter there is any
other contrary evidence available on record which would impeach
rate of compensation granted by the reference court. It does not
appear that the decision rendered in respect of rate of land
acquisition compensation granted by the reference court is liable
to be disturbed. The computation appears to have been done
reasonably and taking into account evidence, as has been placed
on record. As a matter of fact, the two sale instances, Exhibit-21
and Exhibit-22 are of much higher amounts than sale instance at
Exhibit-23. In the circumstances, so far as enhancement
component involved under award under reference is concerned,
the same would not be liable to be disturbed.10. Full Bench of this court in the case of "State of Maharashtra V/s
Kailash Shiva Rangari" reported in 2016 (4) ALL MR 513 under::: Uploaded on - 09/05/2018 ::: Downloaded on - 21/05/2018 10:06:13 :::{10} fa1998-16
paragraphs No. 32 clause (iii) and 33 (a) of said judgment has
held as under -" 32. (iii) Where the possession of the land under acquisition is taken
prior to issuance of notification undersection 4 (1), then there would be
no question of invoking the urgency clause undersection 17of the said
Act and the interest undersection 34shall start running from the date of
passing of the award.33. In view of above, we answer the question of reference as under:(a) If the possession is taken before the notification undersection 4
(1)of the Land Acquisition Act is published and / or before the award is
passed, the landowner would be entitled for interest as persection 34necessarily from the date of passing of the award undersection 11of the
said Act, except in cases where the possession is taken in accordance
withsection 17of the said Act and in that situation only, the provision ofsection 34of the said Act shall start operating from the date of
possession. "11. Further, learned Single Judge of this court at Nagpur in the
case of "The State of Maharashtra V/s Ramesh Tukaram Meshram" reported
on 2018 (1) ALL MR 645 has held thatsections 28and34of the
Land Acquisition Act, 1893 are pari materia. They are identical
with exception of stage.Section 28relates to interest on
enhancement whereassection 34deals with interest on award
by special land acquisition officer / collector.12. As such, as far as interest in present matters directed from
the date of possession is concerned which is although sought to
be justified on behalf of the claimants, yet do not appear to be in
a position of any other prevailing position of law in this respect
and overcome decision of full bench and the subsequent decision::: Uploaded on - 09/05/2018 ::: Downloaded on - 21/05/2018 10:06:13 :::{11} fa1998-16
(supra), the direction and date of award of interest will have to
undergo modification, pursuant to full bench judgment (supra).13. In the circumstances, clauses 3 and 4 of the operative
order under decision in land acquisition references will have to
undergo modification in tune with the full bench judgment and
as such, the interest undersections 28and34of the Land
Acquisition Act, payable to the claimants would be from the date
of award and not as observed by the reference court, from the
date of possession.14. With the modification to aforesaid extent, first appeals
stand partly allowed and rest of the challenge in the first appeals
stand dismissed.[SUNIL P. DESHMUKH, J.]
drp/fa1998-16::: Uploaded on - 09/05/2018 ::: Downloaded on - 21/05/2018 10:06:13 ::: |
5780c304-8adf-5b48-8c99-73d863f224f5 | court_cases | Patna High CourtHenry Tirkey vs Basu Orain And Ors. on 4 May, 1999Equivalent citations: 1999(3)BLJR2161Author:D.N. PrasadBench:D.N. PrasadJUDGMENT
D.N. Prasad, J.1. This appeal has been filed on behalf of the plaintiff/appellant, namely, Henry Tirkey against the judgment and decree, passed by Addl. Subordinate Judge, Ranchi by which the learned Sub-Judge dismissed the suit.2. The short facts, as alleged by the plaintiff/appellant is that the plaintiff and defendant No. 3 are the sons of Bhushan Tirkey, who died in or about the year 1963-64 leaving behind the plaintiff and defendant No. 3 as the only sons who inherited the land belonging to their father Bhushan Tirkey. It is further claimed that there was a family partition of tall, the lands and properties belonging to Bhushan Tirkey in the month of January 1964 and the whole land plot No. 793, area 1.65 acres, being land of Schedule-A fell in the exclusive share of the plaintiff and since the time of partition the plaintiff is coming in exclusive possession of the suit land. The defendant No. 3 has got no title and possession over the said land. It is further claimed that defendant Nos. 1 to 3 by practising fraud, obtained a permission from the Deputy Collector, Ranch in respect of the land of Schedule-A for sale in favour of defendant Nos. 1 and 2. The defendant No. 3 was addicted to drinking wine and, as such, the defendant Nos. 1 and 2 after playing fraud, got the sale-deed executed by defendant No. 3 in respect of the land being an area of 82.1/2 decimal of plot No. 793, though defendant No. 3 has got no title and possession over the same and the sale-deed has not been acted upon and due to which the suit has been filed.3. The defendant Nos. 1 and 2 filed the W.S., claiming therein that the suit is not maintainable and it is barred by the provision ofSpecific Relief Act. It is further claimed that actually there was a partition between the plaintiff and defendant No. 3. Both the brothers after the death of Bhushan Tirkey with respect to all the lands, including the suit land and both the parties came in possession over half and half over all the lands including the suit plot No. 793 and defendant No. 3 came in possession over the half of the said land, being an area of 82.1 /2 decimals out of total area 1.65 acres. It is further claimed that the defendant No. 3 after obtaining the sanction of the Deputy Commissioner, Ranch under Section 46 C.N.T. Act sold the said area, being 82-1/2 decimals by a registered sale-deed after payment of consideration amount of Rs. 10,000/- and since the sale, defendant Nos, 1 and 2 are coming in peaceful possession over the said land. The defendant No. 3 had exclusive title and possession over the suit land and the sale-deed was executed by defendant No. 3 with full knowledge and even after permission, as required under Section 46 of the C.N.T. Act and so the question of fraud does not arise and, as such, the plaintiff has got no cause of action for the suit and the suit is fit to be dismissed. The defendant No. 3 did not appear in the lower Court. The learned lower Court framed the issues on the basis of the pleadings of both sides which are as follows:(i) Is the suit as framed maintainable?(ii) Has the plaintiff got valid cause of action or right to sue?(iii) Is the suit barred by law of limitation and adverse possession and ouster?(iv) Is the suit barred by principles of estoppel waiver and acquiescence?(v) Is the plaintiff entitled to get a decree for declaration that he has got right, title and interest over the suit land, as mentioned in Schedule-A of the plaint and the sale-deed in favour of defendant Nos. 1 and 2 by defendant No, 3 with respect to the suit land is not binding upon him?(vi) To what other relief or reliefs, if any, is the plaintiff entitled?.4. Both sides adduced evidence in the lower Court and after considering the evidence on record, oral and documentary, the learned Court below dismissed the suit by the impugned judgment,5. At the very outset, we learned Counsel for the appellant submitted that there is no denial that the plaintiff Henry Tirkey and defendant No. 3, Albert Tirkey are the own brothers and they are sons of Bhushan Tirkey. It is also submitted that the plaintiff admitted about the partition of the lands belonging to their father Bhushan Tirkey in the month of January, 1964. It is further submitted that the learned Court below failed to consider the statement of witnesses produced on behalf of the plaintiff/appellant and there is no indication as to what is the total area of plot No. 793 and if actually the total area is 1.65 acres, then 82.1/2 decimals would be half of the said area. It is also submitted that the said plot No. 793 fell in the share of the plaintiff/appellant, but at the same time, he fairly conceded in course of argument that there is no document showing the total area of plot No. 793, as well as there is no document to show that actually the said plot number fell in the share of the plaintiff. On the other hand, the learned Counsel for the respondent submitted that the partition is admitted between the parties which took place as back as in the year 1964 which is after the death of their father, Bhushan Tirkey and the question of the fraud does not arise on the part of the respondent as the said land was sold by Albert Tirkey, the own brother of the plaintiff after the permission is accorded by the Deputy Commissioner, Ranchi, as required under Section 46 of the C.N.T. Act for which a proceeding was also initiated. It is further submitted that the total area of plot No. 973 is admittedly 1.65 acres out of which half of the land being 82.1/2 decimals have been sold by defendant No. 3, Albert Tirkey and so he has rightly sold the land after payment of the consideration amount and also after obtaining the sanction and so the whole case of the plaintiff becomes falsified.6. Before appreciating the contention of both the parties, I would like to point out the admitted case. It is an admitted position that the plaintiff and defendant No. 3 are the sons of the late Bhushan Tirkey. It is also an admitted position that there was a family partition of all the lands and properties of the late Bhushan Tirkey in the month of January 1964 and the whole lands have been put in partition, but it is claimed by the plaintiff that the whole lands of plot No. 793 fell in the share of the plaintiff exclusively. At this stage, I may mention that there is no document to this effect to corroborate the pleading. It is also an admitted fact that defendant No. 3 had obtained sanction by the Deputy Commissioner, Ranchi, to sell the lands, an area of 82-1/2 decimals in favour of defendant Nos. 1 and 2 for which sanction was also accorded and, accordingly, the sale-deed was executed by defendant No. 3 as a consideration amount of Rs. 10,000/-.7. P.W. 1, the plaintiff stated that total area of the suit plot is 1.65 acres. He admitted that he got the land cultivated through Soma Oraon on Adhbatai, but there is no such pleadings. He admitted in his cross-examination that he and his brother Albert Tirkey has got half and half share over all the lands. He also admitted that there was a partition in presence of his mother, but there is no document in respect of the said partition and as such, he cannot say as to which plot was allotted to him and which was allotted to his brother, Albert Tirkey. He clearly deposed that he has got no any document to show that the plot No. 793 was exclusively fell in his share.8. P.W. 2 stated that the whole area of the plot was given in share of the Plaintiff during the partition, but he admitted in his cross-examination that he cannot say as to when the partition took place and the said partition could not be held in his presence.9. P.W. 3 claimed that the sit lands are in possession of the plaintiff, Henry Tirkey, but he admitted in his cross-examination that he cannot say about the total area of the suit land. He further stated that there was no document reduced into writing in respect of the partition. P.W. 4 admitted that no partition took place in his presence. On the other hand, the witnesses adduced on behalf of the defendant said that there was a partition of half and half share of both the brothers, the plaintiff and defendant No. 3.10. It is an admitted position that the plaintiff Henry Tirkey, the brother of defendant No. 3 Albert Tirkey already admitted in paragraph 4 of the plaint that there was a family partition of all the lands and properties of his father, Bhushan Tirkey in the month of January 1964, but it is claimed that the entire area of plot No. 793 was allotted in his share. But, 1 have already discussed above that there is no cogent evidence, either oral or documentary, placed from the side of the plaintiff to substantiate this story that actually the whole area of plot No. 793 was allotted to the plaintiff at the time of the said partition. It is also an admitted position that plot No. 793 is having a total area, i.e., 1.65 acres of land of which half area comes to 82.1 /2 decimals and, admittedly, the defendant No. 3, Albert Tirkey sold the half land, i.e., 82.1/2 decimals in favour of defendant Nos. 1 and 2 by a registered sale-deed as back as in the year 1976. It is also clear that defendant No. 3, Albert Tirkey sold the said land of his own share being half after due sanction accorded by the Deputy Commissioner, Ranchi, as required under Section 46 of the C.N.T. Act and so the question of fraudulent or duping the defendant No. 3 does not arise. It is obvious that defendant No. 3 sold his half share of the land of plot No. 793 being an area of 82.1 /2 decimals by a registered sale-deed for consideration and for which he is entitled to.11. In the above facts and circumstances of the case, I find that the learned Court below has rightly dismissed the suit and the judgment dated 23-12-1982, dismissing the suit is hereby, affirmed. Thus, I do not find any merit in the appeal which is accordingly dismissed, but without costs. |
81a4c207-8208-53c4-ada0-ad6fcc367bf6 | court_cases | Supreme Court of IndiaRajbabu & Anr vs State Of M.P on 24 July, 2008Equivalent citations: AIR 2008 SUPREME COURT 3212, 2008 AIR SCW 5435, 2008 (3) AIR JHAR R 935, (2008) 2 HINDULR 347, (2009) 1 ORISSA LR 97, (2008) 69 ALLINDCAS 65 (SC), (2008) 4 ALLCRILR 53, (2008) 4 CHANDCRIC 168, (2008) 62 ALLCRIC 926, (2008) 3 JCC 2013 (SC), 2008 ALLMR(CRI) 2894, 2008 (17) SCC 526, (2008) 3 ALLCRIR 2510, (2008) 4 CURCRIR 90, (2008) 10 SCALE 437, (2008) 2 DMC 624, (2008) 41 OCR 195, (2008) 3 RECCRIR 890, 2008 CHANDLR(CIV&CRI) 330, (2008) 2 MARRILJ 369, (2009) 1 ALD(CRL) 122Author:Mukundakam SharmaBench:Mukundakam Sharma,R.V. RaveendranIN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.895 OF 2003
Rajbabu & Anr. .... Appellants
Versus
State of M.P. .... Respondent
JUDGMENTDr. Mukundakam Sharma, J.1. By this Judgment and order we propose to dispose of the appeal filed by
the appellants against the judgment and order dated 23-9-2002 of the High
Court of Madhya Pradesh at Jabalpur whereby the Learned Single Judge
dismissed the appeal filed by the appellants against the judgment and
order dated 17-6-1989 of the Learned Additional Sessions Judge, Khurai,
convicting the appellants under the provisions ofSections 306and498Aof the Indian Penal Code (for short `theIPC') and sentencing each of them
to undergo rigorous imprisonment for three years on each count.2. The deceased, Shanti Bai, daughter of Janak Rani (PW.1) and Gyan Das
(PW.2) was married to Rajbabu-appellant No.1 two years prior to the date2of occurrence. On 17.7.1988 Shanti Bai set herself on fire in her
matrimonial home and she died because of burn injuries received by her.
At the time when the occurrence took place the Appellant No.2, Smt.
Munnibai (mother-in-law of the deceased) had gone to fetch water from
the well. The husband of Appellant No.2, Shri Jagat Bandhu (father-in-
law of the deceased), who was acquitted by the trial court, was away to
some other place, whereas Appellant No.1 had gone for cutting wood
from the forest. Appellant No.1 immediately coming to know about the
incident came back and lodged the first information report at police
station Bhangarh which was recorded by the Head Constable Narbada
Prasad, who was examined as PW.9 during the trial. The said report
which was lodged by the appellant No.1 was exhibited during the trial and
was marked as Ex. P.16. The deceased was carried to the railway station
Karonda for being taken to the Government Hospital at Bina for
treatment. The police station Incharge, Mr. Ashok Chourasia (PW.8), also
arrived at the railway station and recorded the dying declaration, wherein
it was noted that Shanti Bai died in the accidental fire while cooking food
in the house. In the said dying declaration the deceased exculpated all the
members of her matrimonial home. Immediately thereafter she died at the
railway station itself. The police thereafter sent the body for post mortem3examination which was conducted and exhibited as Ex. P.20 during the
trial. According to the said post mortem report the deceased suffered 90%
burns which were found to be ante mortem. The police thereafter started
investigation and on completion thereof, submitted a charge-sheet against
Rajbabu-appellant No.1, Smt. Munnibai-appellant No. 2, who is mother of
appellant No.1 and Jagat Bandhu, father of the appellant No.1 underSections 306and498Aof the IPC. On the basis of the aforesaid charge-
sheet, charges were framed against all the three accused-appellants underSections 306and498Aof the IPC for treating the deceased with cruelty
and abetting her to commit suicide as a result of which allegedly she
committed suicide.3. During the course of the trial, altogether eight witnesses were examined in
order to prove the charges against the accused persons. Trial court after
hearing the arguments and on appreciation of the evidence on record
acquitted accused No.3, the father of the Appellant No.1, whereas an
order was passed convicting appellant No.1 and appellant No.2 underSections 306and498Aof the IPC after holding that offences against both
of them are proved beyond reasonable doubt. The learned trial court
thereafter passed an order of sentence, sentencing both the appellants to4undergo rigorous imprisonment for three years on each count. Both the
sentences were to run concurrently. No fine was imposed. Against the
aforesaid judgment both the appellants filed an appeal before the High
Court which was dismissed by its judgment on 23rd September, 2002.
Being aggrieved by the said judgment this appeal has been filed by the
appellants. During the course of the trial they were granted bail. In the
present appeal order was passed by this Court enlarging them on bail.4. We have heard the learned counsel appearing for the appellants.
However, counsel for the respondent-State did not appear in the hearing
of the appeal although her name was shown in the daily cause list.
Counsel appearing for the appellants at the very outset brought to our
notice that Appellant No.1, namely, Rajbabu son of Jagat Bandhu had
died on 27th September, 2005 at village Sabgah. The said appellant
having died, the appeal filed by him stands disposed off having been
abated and therefore having been rendered infructuous. This appeal,
therefore, survives only so far as accused/appellant No.2, namely, Smt.
Munni Bai is concerned.55. Learned counsel appearing for the appellant, Smt. Munni Bai submitted
that the deceased had died of burn injuries received by her while she was
cooking food in the kitchen in her matrimonial home and that it is clearly
established from the records that all the other members of the family, at
the time of occurrence were not present. It was also submitted that the
prosecution case itself indicates that appellant No. 2 had gone out of the
house for fetching water and, therefore, she could not have been held
guilty for an offence either underSection 306or 498A of theIPC. He
further submitted that the only incriminating evidence that could be said
to be available against her is the letter which was allegedly written by the
deceased and was exhibited as Ex. P.1 and a dying declaration which was
recorded by Shri Ashok Choursia, the investigating officer who was
examined as PW 8. It was submitted by him that none of the aforesaid
documents pin point the guilt of the appellant in the act of commission of
suicide by the deceased.6. We have considered the aforesaid submissions in the light of the record
including the evidence adduced on behalf of the prosecution. There is no
eye witness to the occurrence of the act of suicide committed by the
deceased who was the daughter-in-law as she was the only person6available at the relevant time in the matrimonial home. At that point of
time she was cooking food for all the members of the family who had
gone out of the house. Her husband, appellant No.1 had gone to the forest
for collecting wood whereas her father-in-law, who was original accused
No.3 had gone out of the house for some other work and whereas the sole
appellant before us, had gone out of the house to fetch water. The only
evidence that has been produced and was used for leveling accusations
against the present appellant was the dying declaration and the contents of
Ex. P.1 which is stated to be a letter written by the deceased. Some of the
witnesses like PW 1 and PW 3, the family members of the parental home
of the deceased have stated in their deposition about the alleged ill-
treatment meted out to the deceased by the in-laws family. Let us therefore
analyse and appreciate the said pieces of evidence as available on record.7. The dying declaration was recorded on 17.7.1988 at about 12.45 hrs. by
the investigating officer, PW 8 at the railway station from where the
deceased was to be taken to the hospital for medical treatment. The
incident had taken place at about 10.30 AM. Deceased had stated in the
said dying declaration which was recorded in the presence of some of the
villagers that while pouring kerosene oil, one end of her sari caught fire as7she was cooking food and that in the aforesaid manner she got burnt. It is
also stated by her in the said dying declaration that she did not set fire on
her own and no body set fire on her and that while preparing meal her sari
caught fire accidentally. She has categorically stated in the said dying
declaration that no quarrel had taken place and that there was no problem
in her matrimonial home. The said statement was read over to her and her
thumb impression was put as she could not sign because of the burn
injuries received by her.8. The courts below have questioned the evidentiary value of the said dying
declaration. A perusal of the said dying declaration would prove and
establish that there is nothing incriminating in the said statement against
the appellant and, therefore, the said dying declaration, which was
exculpatory in nature, so far as the prosecution is concerned is of no
relevance and would rather help the accused appellants. As there is
nothing incriminating in the said document against the appellants, neither
are we inclined nor are we required to go into the question of evidentiary
value of the said document.89. The other incriminating document against the accused appellants is the
undated letter exhibited as exhibit P.1. The said letter appears to have
been written by the deceased, addressing to father, mother and the
younger brothers of the husband. In the said statement the deceased has
stated that she is unable to tolerate the atmosphere in the family in her
matrimonial home. She also stated that she prefer to live in hell because
in-laws have done such acts with her which are of no use to mention. She
has also stated that whatever has been done was all-right. In her letter she
has stated that she had always considered her father-in-law and mother-in-
law more than her parents and that even then they have treated her in such
a manner which she never expected. It is mentioned therein that the
matrimonial house was ruined after her arrival and that she was treated
like an enemy. She has stated that her mother-in-law had told that if she
(Shanti Bai) is kept in their house then nothing will remain. In that view
of the matter she did not want to become burden on herself nor on her in-
laws and that moment was the last time of her life. Of course, in the letter
there is no date written but towards the end of the letter it was mentioned
that it was the last day of her life. She also stated that she had a long life
but the hard words had made her life incomplete and she has no further
time to write further. The said letter appears to have been written on the9date of occurrence and in the said letter she had given vent to all her
expressions, feelings and contempt for the family. The said letter was
found in the box seized from the room where the incident occurred.10. The issue, therefore, that falls for our consideration is whether the
conviction can be based against the appellant No. 2 on the basis of the
said letter alone.11. The prosecution has examined the mother of the deceased as PW 1. She
had stated in her deposition that her daughter told her that in her in-laws
house, her mother-in-law used to ask her to run hand flourmill. She also
stated that her son-in-law Rajbabu also used to quarrel with her daughter
and used to beat her. She has also stated that her daughter told her that
her mother-in-law used to use filthy language for her father and brothers.
It is further stated by her that once her husband had gone to bring Shanti
Bai, at that time her mother-in-law did not send her rather she was beaten
by her in his presence for not cleaning the utensils. Thereafter her
husband came back. In her cross examination she stated that her daughter
wanted to become educated and wanted to go for employment. Her
daughter told her after coming back from the matrimonial home that her10husband is not educated and the family is poor for which she had
expressed pain. Her daughter told her that her life would be spoiled in
that house and on that issue she was very unhappy. It was also stated by
her that her daughter never sent any letter from her in-laws house. She
further replied in her cross-examination that the deceased never told
anything to her relatives and members of the society regarding her
troubles because she never wanted to make her life public.12. We have also on record the deposition of the sister-in-law of the
deceased Smt. Kamla Rani who was examined as PW 3. She has also
deposed that when Shanti Bai came back from her in-laws house for the
first time she told her that her husband and mother-in-law are troubling
her very much. She is forced to run hand driven flourmill which she was
not habitual and when she was not able to run the flourmill, her mother-in-
law and husband used to beat her. It has also been stated in her
deposition that after coming back from her in-laws house Shanti Bai told
her that once there had been a quarrel between her and her mother-in-law
and on the said issue her husband wanted to burn her but at that moment
her mother-in-law stopped her husband not to do so at that time. It was
further stated in her deposition that Shanti Bai told her not to narrate this11story to any of her brothers. The contents of exhibit P.1 were approved by
PW 3, stating that the said letter was written by the deceased Shanti Bai.13.It appears from the statement of PW 1 and also corroborated by the
statement of PW 3 (sister-in-law of the deceased) that the deceased
studied upto XI standard and wanted to study further and wanted to be
employed but since her husband was not literate and since the family was
poor, they could not make arrangements for her further studies and they
could not have even allowed her to go for employment, for which she was
upset. In her statement PW 1 had, of course, brought in some allegations
about the mother-in-law but only from that statement it cannot be said that
she had directly any hand in the act of commission of suicide. So far as
the evidence of PW 1 and PW 3 are concerned, there is only evidence to
the extent that at times the deceased was not treated well by the appellant.14.Of course, reliance is placed by the learned courts below on the
provisions ofSection 113Aof the Indian Evidence Act, 1872 (for short
`theEvidence Act'). Any person who abets the commission of suicide is
liable to be punished underSection 306IPC.Section 107IPC lays down
the ingredients of abetment which includes instigating any person to do a12thing or engaging with one or more persons in any conspiracy for the
doing of a thing, if an act or illegal omission takes place in pursuance of
that conspiracy and in order to the doing of that thing, or intentional aid
by any act or illegal omission to the doing of that thing.15.In the instant case there is no direct evidence to establish that the
appellant either aided or instigated the deceased to commit suicide or
entered into any conspiracy to aid her in committing suicide. In the
absence of direct evidence the prosecution has relied uponSection 113-Aof the Evidence Act, under which the court may presume on proof of
circumstances enumerated therein, and having regard to all the other
circumstances of the case, that the suicide had been abetted by the
accused. The explanation to Section 113-A further clarifies that cruelty
shall have the same meaning as inSection 498-Aof the IPC. UnderSection 113-Aof the Evidence Act, the prosecution has first to establish
that the woman concerned committed suicide within a period of seven
years from the date of her marriage and that her husband or any relative of
her husband had subjected her to cruelty. Section 113-A gives a discretion
to the court to raise such a presumption, having regard to all the other
circumstances of the case, which means that where the allegation is of13cruelty it must consider the nature of cruelty to which the woman was
subjected, having regard to the meaning of the word "cruelty" inSection
498-AIPC. The mere fact that a woman committed suicide within seven
years of her marriage and that she had been subjected to cruelty by her
husband or any relative of her husband, does not automatically give rise to
the presumption that the suicide had been abetted by her husband or any
relative of her husband. The court is required to look into all the other
circumstances of the case. One of the circumstances which has to be
considered by the court is whether the alleged cruelty was of such nature
as was likely to drive the woman to commit suicide or to cause grave
injury or danger to life, limb or health of the woman. The law has been
succinctly stated inRamesh Kumar v. State of Chhattisgarhreported in
(2001) 9 SCC 618 wherein this Court observed:"12. This provision was introduced by the Criminal Law
(Second) Amendment Act, 1983 with effect from 26-12-1983 to
meet a social demand to resolve difficulty of proof where
helpless married women were eliminated by being forced to
commit suicide by the husband or in-laws and incriminating
evidence was usually available within the four corners of the
matrimonial home and hence was not available to anyone
outside the occupants of the house. However, still it cannot be
lost sight of that the presumption is intended to operate against
the accused in the field of criminal law. Before the presumption
may be raised, the foundation thereof must exist. A bare reading
of Section 113-A shows that to attract applicability of Section
113-A, it must be shown that (i) the woman has committed
suicide, (ii) such suicide has been committed within a period of
seven years from the date of her marriage, (iii) the husband or
his relatives, who are charged had subjected her to cruelty. On14existence and availability of the abovesaid circumstances, the
court may presume that such suicide had been abetted by her
husband or by such relatives of her husband. Parliament has
chosen to sound a note of caution. Firstly, the presumption is not
mandatory; it is only permissive as the employment of
expression `may presume' suggests. Secondly, the existence and
availability of the abovesaid three circumstances shall not, like a
formula, enable the presumption being drawn; before the
presumption may be drawn the court shall have to have regard to
`all the other circumstances of the case'. A consideration of all
the other circumstances of the case may strengthen the
presumption or may dictate the conscience of the court to abstain
from drawing the presumption. The expression -- `the other
circumstances of the case' used in Section 113-A suggests the
need to reach a cause-and-effect relationship between the cruelty
and the suicide for the purpose of raising a presumption. Last
but not the least, the presumption is not an irrebuttable one. In
spite of a presumption having been raised the evidence adduced
in defence or the facts and circumstances otherwise available on
record may destroy the presumption. The phrase `may presume'
used in Section 113-A is defined inSection 4of the Evidence
Act, which says -- `Whenever it is provided by this Act that the
court may presume a fact, it may either regard such fact as
proved, unless and until it is disproved, or may call for proof of
it.' "InState of W.B. v. Orilal Jaiswalreported in (1994) 1 SCC 73 this Court
observed:"15. We are not oblivious that in a criminal trial the degree of
proof is stricter than what is required in a civil proceedings. In a
criminal trial however intriguing may be facts and circumstances
of the case, the charges made against the accused must be
proved beyond all reasonable doubts and the requirement of
proof cannot lie in the realm of surmises and conjectures. The
requirement of proof beyond reasonable doubt does not stand
altered even after the introduction ofSection 498-AIPC andSection 113-Aof the Indian Evidence Act. Although, the court's
conscience must be satisfied that the accused is not held guilty
when there are reasonable doubts about the complicity of the
accused in respect of the offences alleged, it should be borne in15mind that there is no absolute standard for proof in a criminal
trial and the question whether the charges made against the
accused have been proved beyond all reasonable doubts must
depend upon the facts and circumstances of the case and the
quality of the evidences adduced in the case and the materials
placed on record. Lord Denning in Bater v. Bater (1950) 2 All
ER 458 (All ER at p. 459) has observed that the doubt must be
of a reasonable man and the standard adopted must be a standard
adopted by a reasonable and just man for coming to a conclusion
considering the particular subject-matter."16.Having regard to the principles aforesaid, we may now advert to the fact
of the present case. Here is a case where the evidence on record discloses
that the deceased wanted to be married in a literate family. She was not
happy with the fact that her husband was illiterate and also with the status
and condition of the family of her husband. She was also required to do
some domestic work as the family was poor, for which she was not happy.
The deceased was of the view point that her life has been spoiled by
marrying Appellant No. 1. The letter reflects the attitude of the in-laws of
the deceased towards the deceased. In the said letter there was no
reference of any act or incident whereby the appellants were alleged to
have committed any willful act or omission or intentionally aided or
instigated the deceased to commit suicide.1617. On such slender evidence, therefore, we are not persuaded to invoke the
presumption underSection 113-Aof the Evidence Act to find the
appellant guilty of the offence underSection 306IPC.18.The next question which remains for our consideration is whether an
offence is made out undersection 498Aof IPC. Though the letter
allegedly written by the deceased mentions the fact that the attitude of the
family was not good towards the deceased and she was not treated well
but there is no mentioned about any of such incident. PW1 and PW3 in
their statements have emphasized that the mother-in-law of the deceased
used to ask the deceased to run hand driven flourmill to which she was not
habitual. In the year 1988 when the abovementioned incident occurred,
the hand driven flourmills were generally used by women in the poor
families in the villages and even till today one may find use of the same in
some villages in the country. Thus asking one to run the same at that point
of time may not amount to an act of cruelty.19.In the said statements there is also a mention of an incidents were the
deceased had been beaten by her husband. The mother-in-law (appellant
No. 2) cannot be held liable for the said act; rather there is evidence on17record of PW3 who had stated that appellant No. 2 had once restrained her
son. Though in the statement of PW 1 there is mention of one or two
incident when the present appellant had beaten the deceased but there
appears to be possibility of embellishment. The father of the deceased
(PW2), in his statement has not made any statement regarding cruelty
being committed on his daughter in her in-laws house. After analyzing the
said evidence and the statements made by PW1 and PW3 we are of the
opinion that the benefit of doubt should be granted to appellant No. 2.20.We, therefore, set aside the conviction underSections 306and498Aof
the IPC passed against the appellant No. 2 and acquit her granting her
benefit of doubt. The appeal is allowed in so far as appellant No. 2 is
concerned. The appeal has abated in so far as appellant No. 1 is
concerned. The appellant No. 2 is already on bail. She is released from
the terms of her bail bonds.................................J.
(R.V. Raveendran)
.................................J.
(Dr. Mukundakam Sharma)
New Delhi,
July 24, 2008 |
cbcdb842-1c64-537f-87e0-0b691ce87870 | court_cases | Punjab-Haryana High CourtThe State Of Punjab Through The ... vs N.V. International And Ors. on 24 March, 2006Equivalent citations: (2007)145PLR389, AIR 2007 (DOC) 217 (P. & H.)Author:K.S. GarewalBench:K.S. Garewal,Pritam PalJUDGMENT
K.S. Garewal, J.1. Learned Single Judge on August 23, 2005 had deemed it appropriate that F.A.O. No. 3799 of 2005 be heard by a larger Bench because the point in.oived interpretation of the judgment of the Supreme Court inUnion of India v. Popular Construction Co. A.I.R.2001 S.C. 4010. Later in F.A.O. No. 4750 of 2005 the learned Single Judge expressed again the same view on October 18, 2005. Therefore, both the above cases are before this Bench and shall be decided together since the questions of law are the same.2. The State of Punjab had an agreement with N.V. International which contained an arbitration clause. Therefore, when a dispute arose the matter was referred to the Arbitrator, Shri B.R.Bajaj, I.A.S., Principal Secretary to Government of Punjab, Department of Finance. The Arbitrator passed an award on February 13, 2004, accepting the claim of the N.V. International for refund of Rs. 28.00 lacs which had been forfeited by the State and ordered release of this amount within one month from the date of the award.3. The above award was challenged through a writ petition which was dismissed on October 4, 2004 by the Division Bench holding that "admittedly, alternative and efficacious remedy is available to the petitioner under theArbitration Act1996... the writ petition is wholly premature. The petitioner is at liberty to approach the civil court for appropriate relief...."4. Thereafter, the State of Punjab filed a civil miscellaneous application seeking modification of the order and grant of reasonable time to file objections before the Civil Court underSection 34of the Act. The said application was dismissed on January 13, 2005. The petition underSection 34of the Arbitration and Reconciliation Act, 1996 for setting aside the award dated February 13, 2004 was finally, filed on January 15, 2005 and when it came up before the learned Additional District Judge, Chandigarh the court was pleased to hold that the objections were hopelessly time barred and dismissed the objection petition vide judgment dated June 1, 2005.5. The dismissal of the objections has been challenged through the present appeal.6. In the connected F.A.O. No. 4750 of 2005 the dispute was with Nirmal Agency. In this case as well the arbitrator had accepted the claim of Nirmal Agency and ordered refund of Rs. 28.00 lacs which had been forfeited by the State. The award was passed on February 13, 2004. The facts of the two appeals are almost identical although in the case of Nirmal Agency the objections underSection 34of the Act had been instituted on January 28, 2005 and dismissed on August 6, 2005.7. According to the learned Counsel for the State, the learned Additional District Judge had failed to consider the fact that the appellant State was claiming benefit of not onlySection 5of the Limitation Act but alsoSection 14of the said Act. He has argued that even if it was assumed that the provisions ofSection 5of the Limitation Act are not applicable to proceedings under theArbitration and Reconciliation Act, 1996, a belated application was still maintainable underSection 14of the Limitation Act because the appellant was claiming that the period of limitation be calculated after deducting the time spent in the hearing of the writ petition before this Court.8. The learned Additional District Judge considered the above contentions and relied heavily upon the judgment the Supreme Court inUnion of India v. Popular Construction Co.for holding that the objection petition was barred by time.9. The learned Counsel for the respondents has referred to the decisions of Karnataka and Bombay High Courts and has argued that the period spent in prosecuting the writ petitions before the High Court cannot be excluded while computing the limitation. Provisions ofSection 12and14of the Limitation Act would not apply to the present case.10.In this connection the learned Counsel relied upon theH.M.P. Engineers Ltd. and Ors. v. Rallis India Ltd. and Ors.2003(3) Arbitration Law Reporter 510 (Bombay), Division Bench of the Bombay High Court which analyzed the decision of the Supreme Court inPopular Construction Company's case and took a definite view that provisions ofSection 14of the Limitation Act did not govern the provisions relating to filing of the petition under Section 34 of the 1996 Act.In doing so the Court referred toPushpa P. Mulchandani and Ors. v. Admiral Radhakrishin Tahilani (Retd.) and Ors. 2001(2) Arbitration Law Reporter 284 (Bombay).11. We are also of the view that the provisions ofSection 4to24of the Limitation Act cannot and do not apply to the applications under Section 34(3) of the 1996 Act which is a self contained code and does not admit induction and application of provisions of law contained inSections 4to24of the Limitation Act.12. The weight of judicial authority is certainly in favour of the respondent and no interpretation can really be given to the provisions of theLimitation Actwhich may permit inclusion of the period spent in prosecuting the writ petition in this Court for the purpose of determining the limitation for filing petition under the provisions ofSection 34of the Arbitration and Conciliation Act, 1996.13. The State of Punjab could not have been ignorant of the fact that the provisions of Section 34 entitled the State to file an application for setting aside the arbitral awards. Therefore, it is not understood why the State decided to file a writ petition instead of an application under Section 34.14. Another factor which also weighs with us is the fact that the award was pronounced on February 13, 2004. Civil Writ Petition No. 15349 of 2004 was filed by the State of Punjab on September 23, 2004, returned with some objections and refiled on September 28, 2004. It came up before the Division Bench September 30, 2004 and was adjourned to October 4, 2004 when it was disposed of with liberty to the petitioner to approach the Civil Court for the appropriate relief on the same cause of action.15. Thereafter the petitioner filed CM. No. 22459 of 2004 for modification of the said order. This petition was also disposed of with a direction that the points raised therein had to be raised before the appropriate forum.16. Likewise Civil Writ Petition No. 15346 of 2004 against Nirmal Agency was filed in September 2004 and disposed on October 4, 2004, a CM. was filed for modification which too was disposed of as in the case of N.V. International.17. Therefore, in the present cases even the writ petitions had been filed after the period for filing the objection petitions had expired. We are of the view that the State cannot be permitted to take any benefit of the period spent in prosecuting "time barred" writ petitions to revive matters which were barred by time.18. Both the appeals are without merit and hereby dismissed with costs which are quantified at Rs. 10,000/-. |
2bf180a1-8b1a-5dcc-beb3-31a78a461b49 | court_cases | Jharkhand High CourtArchana Kumari vs State Of Jharkhand Through Vig on 6 January, 2012Author:R. R. PrasadBench:R. R. PrasadIN THE HIGH COURT OF JHARKHAND, RANCHI
B.A. No. 9110 of 2011
Archana Kumari ..... Petitioner(s)
Versus
The State of Jharkhand through Vigilance .... Opp. Party(s)
CORAM: HON'BLE MR. JUSTICE R. R. PRASAD
For the Petitioner(s) : M/s Laxman Kumar, Advocate.
For the Vigilance : M/s Nilesh Kumar, Advocate.
-----
02 /06.01.2012. Heard learned counsel appearing for the petitioner and learned
counsel for the State.The petitioner is an accused in a case instituted underSections 403,406,409,467,468,471,109and120Bof the Indian Penal Code andSection
7/13 (2)read withSection 13(1)(d)(c)of the Prevention of the Corruption Act.Learned counsel appearing for the petitioner submits that the petitioner
the Warden of the Kasturba Gandhi Balika Awasiya Vidyalay, Chandankiary,
Bokaro has only been alleged to have opened a joint account in the bank in
her name as well as in the named of Ashok Bharati in contravention of rule
and thereby the amount was withdrawn without completion of the work, but
the enquiry report shows that the work has been completed and only a sum of
Rs.40,927/- has been shown as unadjusted but a sum of Rs.10,000/- has
already been deposited by the co-accused, Ashok Bharati and under the
situation, the petitioner be admitted to bail as the petitioner is ready to deposit
a sum of Rs.15,000/-As against this, learned counsel appearing for the Vigilance submits
that after the amount of Rs.10,000/- was deposited a sum of Rs.30,927/- still
remains unaccounted for.Regard being had to the facts and circumstances of the case, the
petitioner, above-named, on deposit of a sum of Rs.15,000/- (fifteen
thousand), before the Nirman Samiti of the school is directed to be released
on bail on furnishing bail bond of Rs.10,000/- (ten thousand) with two sureties
of the like amount each to the satisfaction of the learned Special Judge,
Vigilance, Ranchi, in connection with Vigilance P.S. Case No.68 of 2010,
corresponding to Special Case No.85 of 2010.Sandeep/ (R. R. Prasad, J) |
1fb170ac-8128-5602-9069-b44d0c74fc8f | court_cases | Madras High CourtH.Sulthan ... Revision vs State: Inspector Of Police on 25 August, 2008Author:P.MurgesenBench:P.MurgesenBEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 25/08/2008
CORAM
THE HONOURABLE MR.JUSTICE P.MURGESEN
Criminal Revision Case No.1131 of 2003
H.Sulthan ... Revision Petitioner/1st Accused
Vs
State: Inspector of Police,
Kenikarai Police Station,
Ramanathapuram District. ... Respondent
Prayer
Criminal Revision filed underSection 397and401of Criminal Procedure
Code against the judgment passed in C.A.No.10 of 2003, dated 25.07.2003, by the
learned Principal District and Sessions Judge, Ramanathapuram, confirming the
judgement of the learned Judicial Magistrate No.2, Ramanathapuram, in C.C.No.159
of 2001, dated 11.04.2003.
!For Petitioner ... Mr.R.Ramasamy
^For respondent ... Mr.S.Muthu Venkatesen,
Govt. Advocate
(Crl. Side)
*****
:ORDERThe Criminal Revision is directed against the judgment passed in C.A.No.10
of 2003, dated 25.07.2003, by the learned Principal District and Sessions Judge,
Ramanathapuram, confirming the judgement of the learned Judicial Magistrate
No.2, Ramanathapuram, in C.C.No.159 of 2001, dated 11.04.2003.2. The case of prosecution briefly is as follows:i) P.W.1, Murugan, is a Watchman in Public Works Department. P.W.2,
Boominathan and P.W.3, Murugesan, are daily wages labourers in Public Works
Department. P.W.4, Kanaga is the Assistant Engineer in Public Works Department.P.W.5, is the Sub-Inspector of Police, attached to Kenikarai Police Station.(ii) On 20.08.2001 at about 4.00 p.m., in Ramanathapuram, Sethupathy
Nagar, Master Plan Complex, the first accused had scrambled over the palisade
and entered into the godown of Public Works Department and stolen an iron pipe
worth Rs.1,000/- and both the first and second accused had placed the same on a
tricycle. On seeing the same P.W.1 caught hold of them and informed the same to
P.W.4, Kanaga, Assistant Engineer of Public Works Department.(iii) After getting information about the theft, P.W.4 came to the scene
of occurrence. She went to the Police Station along with P.W.1, accused,
Accused's tricycle and stolen Pipes and lodged a complaint to P.W.5, the Sub-
Inspector of Police at 6.00 p.m. on that day.(iv) On receiving the complaint, P.W.5 registered a case in Cr.No.365 of
2001 underSections 454and380I.P.C and prepared Ex.P.3, the printed First
Information Report and despatched the same to Court and higher officials.(v) After registering the case, P.W.5 visited the scene of occurrence and
prepared Ex.P.1, the Observation Mahazer and Ex.P.4, the Rough Sketch in the
presence of P.W.2 and P.W.3 and he recorded the statements of witnesses P.W.1 to4.(vi) After completion of his investigation, P.W.5 filed a charge sheet
against the accused under Sections 454 and 380 I.P.C.3. In order to bring home the offence alleged against the accused, before
trial Court, P.Ws.1 to 5 were examined and Exs.P.1 to 4 were marked and M.Os. 1
and 2 were also produced. On completion of the examination of witnesses on the
side of the prosecution, the accused were questioned underSection 313Cr.P.C.,
as to the incriminating circumstances found in the evidence of the prosecution
witnesses and they denied them as false. No witness was examined on the side of
the defence.4. On consideration of the evidence on record, learned Judicial Magistrate
No.2, Ramanathapuram, found the accused guilty underSections 454and380I.P.C
and convicted and sentenced them to undergo one year simple imprisonment and to
pay a fine of Rs.150/- and in default to undergo one month simple imprisonment
for each of the offences.5. Aggrieved over the judgment of learned Judicial Magistrate No.2,
Ramanathapuram, an appeal was preferred by the 1st accused before the Principal
Sessions Judge, Ramanathapuram. The learned Principal Sessions Judge dismissed
the appeal and confirmed the conviction and sentence imposed by the Judicial
Magistrate No.2, Ramanathapuram.6. Challenging the above said judgment, the appellant/1st accused has
filed this Criminal Revision.7. The point for consideration is:"Whether the Revision is maintainable?"8. The point: The only point raised by the learned counsel for the
revision petitioner is that there is no independent witness was examined on the
side of the prosecution. Admittedly, on the date of occurrence, when the
accused were alleged to have stolen an iron pipe M.O.1 and placed the same on a
tricycle M.O.2, they were caught hold by P.W.1, who is the watchman of the
godown. Then, P.W.1 informed the same to P.W.4, the Assistant Engineer of
P.W.D. and a complaint was lodged by P.W.4 with P.W.5. Naturally, watchman
will be incharge of the godown. In this case, watchman has caught hold of the
accused. The occurrence took place at 4.00 p.m. It is not suggested to P.W.1
that there were number of independent witnesses available in the scene of
occurrence. So, the watchman was the available member in charge of the godown.
The evidence of P.W.1, watchman is supported by the evidence of P.W.4, who
reached the scene of occurrence after getting information from P.W.1. There is
no reason for P.W.1 and P.W.4 to depose against the accused. On careful
consideration of the evidence of P.W.1 and P.W.4, this Court is inclined to
accept the evidence of P.W.1 and P.W.4. The prosecution has satisfactorily
proved the case underSections 454and380of I.P.C. Hence, I find no reason to
interfere with the well reasoned and discussed judgment of the trial Court as
well as the first appellate Court.9. Considering the fact that the appellant/accused is aged 68, to meet the
ends of justice, the sentence of one year imprisonment imposed on the accused by
the trial court underSection 454I.P.C. is reduced into 90 days. Fine imposed
by the trial court underSection 454I.P.C. stands confirmed. The conviction
and sentence imposed underSection 380I.P.C. is confirmed.10. The appeal is disposed of by reducing the sentence of imprisonment
underSection 454of I.P.C. alone as stated above. The conviction shall run
concurrently. The period of sentence already undergone by the accused/appellant
is set off.11. As the accused/appellant herein is on bail, the respondent is directed
to take steps to procure him for undergoing remaining period of sentence.sj
To1. The Principal Session Judge,
Ramanathapuram.2. The Judicial Magistrate No.II,
Ramanathapuram.3. The Sub-Inspector of Police,
Kenikarai Police Station,
Ramanathapuram.4. The Public prosecutor,
Madurai Bench of Madras High Court,
Madurai. |
37d5340f-c6a5-56e5-8be7-170cb9c57179 | court_cases | Allahabad High CourtSuraj Bali Singh And Others vs Registrar General High Court Of ... on 8 May, 2017Author:Dilip GuptaBench:Dilip Gupta,Vinod Kumar MisraHIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Reserved
Court No. - 39
Case :- WRIT - A No. - 20708 of 2012
Petitioner :- Suraj Bali Singh And Others
Respondent :- Registrar General High Court Of Judicature At Allahabad And
Counsel for Petitioner :- H.P. Pandey,J.J. Munir,K.G. Mishra
Counsel for Respondent :- C.S.C.,Manish Goyal
Hon'ble Dilip Gupta,J.Hon'ble Vinod Kumar Misra,J.The three petitioners responded to an advertisement dated 18 March 2012 issued by the High Court for conducting direct recruitment to the Uttar Pradesh Higher Judicial Service against 78 vacancies. The advertisement invited applications from Advocates of not less than 7 years standing who must have attained the age of 35 years and must not have attained the age of 45 years as on 1 January 2013. All the three petitioners were more than 45 years of age as on 1 January 2013 and, therefore, were not eligible. This petition was, accordingly, filed for quashing the notification dated 18 March 2012, insofar as it relates to the age bar. Subsequently, an amendment application was filed for declaring Rule 8(i) of the U.P. Higher Judicial Service Rules 19751 which deals with number of appointment to be made and Rule 12 which deals Age as ultra viresArticle 14of the Constitution. The amendment application was allowed. However, at the time of hearing of the writ petition, petitioner No.12, who has appeared in person, submitted that the challenge is restricted to Rule 8(1) only.An interim order was passed in this petition on 1 June 2012 that if the petitioners are otherwise qualified and had filled up their applications but were not accepted because of being overage, they shall be permitted provisionally to appear in the preliminary examination scheduled to be held on 30 June 2012. The interim order was restricted, however, to only those petitioners who satisfied the age requirement in the year 2011.It has been stated that only the first petitioner was able to qualify and so the petition has been pressed by the first petitioner only.The date of birth of the first petitioner is 3 August 1967 and he was enrolled with the Bar Council of Uttar Pradesh on 31 July 1994. The advertisement that was published in the Newspapers on 18 March 2012 for direct recruitment to the Uttar Pradesh Higher Judicial Service provided that Advocates of not less than 7 years standing as on 1 January 2013 who must have attained the age of 35 years and must not have attained the age of 45 years as on 1 January 2013 could submit their applications online from 1 April 2012 to 30 April 2012. The first petitioner was more than 45 years of age as on 1 January 2013 and, therefore, was not eligible.The first petitioner who has appeared in person submitted that prior to the advertisement that was published on 18 March 2012 for direct recruitment, the last recruitment was made in the year 2009 for filling up vacancies existing in 2009 and anticipated vacancies of the year 2010 but no selection was made for the vacancies existing in the year 2011. The submission is that it was incumbent on the High Court to have issued an advertisement in 2011 in view of the directions given by the Supreme Court on 4 January 2007 inMalik Mazhar Sultan and Another v. U.P. Public Service Commission & Others3and since no advertisement had been issued in 2011, the first petitioner should be considered eligible against the 2011 vacancies since he was eligible on 1 January 2012. Rule 8(1) of the 1975 Rules is, therefore, sought to be challenged as being ultra viresArticle 14of the Constitution.Sri Manish Goyal, learned counsel appearing for the High Court, however, submitted that the petitioner was not eligible to appear at the examination conducted in 2012 since he did not satisfy the age requirement provided for under Rule 12. Learned counsel has placed before the Court the order dated 31 March 2011 passed by the State Government, the Application filed by the High Court in the Supreme Court and the order passed by the Supreme Court to explain why the High Court could not conduct any examination in the year 2011. Learned Counsel also submitted that Rule 8 (1) cannot be said to be ultra viresArticle 14of the Constitution.We have considered the submissions advanced by the first petitioner and the learned counsel for the respondents.In order to appreciate the contentions, it would be appropriate to refer to the relevant provisions of the 1975 Rules. Rule 5 deals with sources of recruitment and provides that recruitment to the services shall be made :-"(a) by promotion from amongst the Civil Judges (Senior Division) on the basis of Principle of merit-cum-seniority and passing a suitability test;(b) by promotion strictly on the basis of merit through limited competitive examination of Civil Judges (Senior Division) having not less than five years qualifying service; and(c) by direct recruitment from amongst the Advocates of not less than seven years standing on the first day of January next following the year in which the notice inviting applications is published."Rule 8 deals with number of appointments to be made and is as follows:-"(1) The Court, shall, from time to time, but not later than three years from the last recruitment, fix the number of officers to be taken at the recruitment keeping in view the vacancies then existing and likely to occur in the next two years.(2) If at any selection the number of selected direct recruits available for appointment is less than the number of recruits decided by the Court to be taken from that source, the Court may increase correspondingly the number of recruits to be taken by promotion from the Nyayik Sewa;Provided that the number of vacancies filled in as aforesaid under this sub rule shall be taken into consideration while fixing the number of vacancies to be allotted to the quota of direct recruits at the next recruitment, and the quota for direct recruits may be raised accordingly; so, however, that the percentage of direct recruits in the service does not in any case exceed 25% of strength of the service."Rule 12 deals with Age and is as follows:-"A candidate for direct recruitment must have attained the age of 35 years and must not have attained the age of 45 years on the first day of January next following the year in which the notice inviting applications is published;Provided that the upper age limit shall be higher in case of candidates belonging to Scheduled Castes and Scheduled Tribes and such other categories as may be notified by the Government from time to time."The procedure for direct recruitment is contained in part IV of the 1975 Rules. In the present case, the dispute is regarding recruitment from amongst the Advocates of not less than 7 years standing on the first date of January next following the year in which the notice inviting applications is published.The notice was published on 18 March 2012 and the relevant portion is as follows :-"Applications for direct recruitment against 78 vacancies in the Uttar Pradesh Higher Judicial Service (SC-16, ST-02 and OBC-21, Unreserved - 39) in the pay scale of Rs. 51550-1230-58930-1380-63070 are invited from Advocates of not less than 7 years standing on 01.01.2013, who must have attained the age of 35 years and must not have attained the age of 45 years as on 01.01.2013. Age limit shall be higher by 3 years in case of candidates belonging to SC/ST/OBC. There shall be 20% horizontal reservation for women.The application shall be filled online (www.allahabadhighcourt.in) from 1st April, 2012 to 30th April, 2012 till 23.59 hours after which the link will be disabled.A Preliminary Examination (objective) is to be held on 30.06.2012 at Allahabad and only those candidates shall be called to appear in the Main Written Examination who secure 50% or more marks in the Preliminary Examination provided candidates not more than 20 times of number of vacancies category-wise i.e. separately for General, Scheduled Castes, Scheduled Tribes and Other Backward Classes shall be admitted to the Main Written Examination. The candidates securing 50% or above in the Main Written Examination shall be called to appear in the interview."The date of birth of the first petitioner is 3 August 1967. The first petitioner was admittedly more than 45 years of age as on 1 January 2013. There is, therefore, no dispute that the first petitioner did not satisfy the age requirement. The contention of the first petitioner is that the High Court had to conduct recruitment process every year in terms of the decision rendered by the Supreme Court on 4 January 2017 in Malik Mazhar Sultan and if examination was held in 2011, the petitioner would have been permitted to appear since he was more than 35 years and and less than 45 years of age as on 1 January 2012. The submission, therefore, is that the petitioner cannot be considered ineligible to appear at the 2012 examination only because of age requirement if the High Court itself did not conduct the examination in 2011. The first petitioner pointed out that the vacancies of 2009 existing upto 21 December 2010 were considered in the advertisement that was issued in 2009 and for the vacancies that occurred in 2011, no selection was made. It was, therefore, necessary for the High Court to permit the first petitioner to appear in the 2012 examination as the vacancies had occurred in 2011.A detailed counter affidavit has been filed by the High Court. It has been stated that while computing the vacancies in the 2012 advertisement, the High Court had taken into consideration the existing vacancies as also vacancies upto 31 December 2013. It has also been stated that an order dated 31 March 2011 was passed by the State Government that no fresh recruitment should be made till such time as all the appointments made in the Fast Track Courts are adjusted. It is for this reason that and IA No. 109 was filed by the High Court in Malik Mazhar Sultan. These facts have been stated in paragraph Nos. 13 to 18 of the Counter Affidavit filed in the writ petition and they are reproduced below:-13. That in so far as not holding the recruitment in 2010 and 2011 is concerned, it is pertinent to mention here that in the report of the Hon'ble Selection and Appointment Committee computing the vacancies arising upto 2013 took into account backlog vacancies of the year 2000 and 2009 alone. Regard may be had to the fact that the recruitment undertaken in 2009 took into consideration the vacancies arising upto 31.12.2010 also In sofaras the vacancies for the year 2011 are concerned, the same have been included post the clearance of the recruitment process by the Hon'ble Supreme Court of India vide its order dated 19.10.2011.It is further not out of place to mention here that in the interregnum the State Government had passed an order dated 31.03.2011 providing that no fresh recruitment would be made till such time as all appointments made to Fast Track Courts had been adjusted. Since the aforesaid order of the State Government placed a fetter upon the power of the Hon'ble Court to make further appointments, it filed IA No. 109 in Civil Appeal No. 10867 of 2006 Malik Mazhar Sultan and Others Vs. UPPSC and others. The said I.A. came to be allowed by the Hon'bel Supreme Court only on 9.10.2011. It was on the aforesaid date that the Hon'ble Supreme Court directed the Hon'ble High Court to forthwith initiate the process of filling up the vacant post in I.A. ignoring the letter dated 31.03.2011 issued by the Government of U.P. A copy of the order of the Hon'ble Supreme Court dated 19.10.2011 is being annexed to this counter affidavit and marked as Annexure CA-1.14. That the answering respondent, therefore, submits that it cannot be said that non holding of recruitment exercise in 2010-2011 was an arbitrary decision or one which was not based on any reason.15. That the other issue which has been raised in the instant writ petition and those connected with it is an alleged violation of the directions issued by the Hon'ble Supreme Court in Malik Mazhar Sultan Vs. UPPSC and others.In this connection the attention of this Hon'ble Court is firstly invited to the I.A. No. 109/2011 which was moved in the aforesaid Civil Appeal by the High Court and upon which the Hon'ble Supreme Court was pleased to grant permission to the Hon'ble Court to initiate the recruitment process. A copy of the I.A. No. 109 of 2011 is being annexed to this counter affidavit and marked as Annexure CA-2.16. That a perusal of the aforesaid IA would establish that one of the prayers made there was to vary / extend the timetable as set out by the Hon'ble Supreme Court in its order dated 4.1.2007 passed in the aforesaid Civil Appeal.It was this IA which was allowed by the Hon'ble Supreme Court on 19.10.2011 and therefore the answering respondent would submit that there is no violation of the directions of the Hon'ble Supreme Court passed in Malik Mazhar Sultan and others and even otherwise the recruitment enjoys the express sanction of the Supreme Court of India.17. That the attention of this Hon'ble Court is also invited to the compliance report filed by the Hon'ble Court before the Hon'ble Supreme Court in the case of Malik Mazhar Sultan and a copy of the compliance report and affidavit dated 8.12.2011 is being annexed to this counter affidavit and marked as Annexure CA-3.18. That more fundamentally the answering respondent invites the attention of this Hon'ble Court to the order dated 4.1.2007 passed in the case of Malik Mazhar Sultan and others by the Hon'ble Supreme Court. As would be evident from a reading of the aforesaid order, it is clearly recorded therein that irrespective of the general directions being issued, the selections are to be conducted in accordance with the existing Judicial Service Rules of the respective States / Union Territories. The judgment / order of the Hon'ble Supreme Court did not override the provisions of the Rules of 1975 and for this reason also, it cannot be said that the Hon'ble High Court has acted in contravention of the direction of the Hon'ble Supreme court rendered in the matter of Malik Mazhar Sultan. A copy of the order of the Hon'ble Supreme Court dated 4.1.2007 is being annexed to this counter affidavit and marked as Annexure CA-4."The said IA No.109 was filed in the Supreme Court in July 2011 with the following prayers:"i) direct the Respondent State of Uttar Pradesh to modify the Government Order No.552VII-Nyay-2-2011-40G/-01 dated 31.03.2011 (Annexure A-2) suitably in conformity with the direction of the Hon'ble Supreme Court dated 04.01.2007 (Annexure A-1) as well as the U.P. Higher Judicial Service Rules, 1975.ii) vary/extend the time schedule as mentioned in the order dated 04.01.2007 in the aforesaid Appeal (Annexure A-1) for compliance of the recruitment for U.P. HJS Exam 2011.iii) pass such other or further orders as may be deemed fit and proper in the facts and circumstances of the case in the interest of justice."The Supreme Court passed the following order on the said application on 19 October 2011:" I.A. NO.109 IN C.A. NO. 1867/2006
Since admittedly with effect from 1st April, 2011, no fast track courts are functioning in the State, prima facie, the prayer made in the application cannot be granted. However, learned counsel appearing for the State of Uttar Pradesh prays for some time to seek instructions whether 156 additional posts of Additional District & Sessions Judges, created as ex-cadre Supernumerary post on temporary basis with effect from 1st April, 2011 could be converted into regular posts in the said cadre.Call the application on 9th November, 2011.In the meantime, we request the High Court to forthwith initiate the process for filling up all the vacant posts in the cadre of District Judge (Direct), ignoring letter No.552/VII-Nyay- 2-2011-40G/01 dated 31st March, 2011 written by the Principal Secretary, UP Government to the Registrar General of the Allahabad High Court."Subsequently, on 24 November 2011, the following order was passed by the Supreme Court :"Re: State of Uttar Pradesh
Learned counsel appearing for the High Court prays for some time to file affidavit indicating the status of the vacancies and steps taken to fill up these vacancies in all the cadres in the Subordinate Judiciary. Let the needful be done within two weeks.List on 14th December 2011 at 2:00 p.m."A compliance affidavit was filed by the High Court and taking note of this compliance affidavit, the Supreme Court passed the following order on 14 December 2011:"Re: State of Uttar Pradesh
As per affidavit dated 8th December, 2011, filed on behalf of the High court, the vacancy position as also the steps taken to fill up the vacancies in the subordinate judiciary has been stated thus:1. Civil Judge (Junior Division):Requisition for filling up of 76 vacancies, which are likely to occur as on 30th June, 2012 has already been sent to the State for appropriate direction to the U.P. Public Service Commission to initiate process for filling up these vacancies. We are confident that the Public Service Commission would take necessary steps for the said recruitments expeditiously.2. Civil Judge (Senior Division):The recommendations made by the Selection and Appointment Committee for promotion of 61 Civil Judges (Junior Division) to the cadre of Civil Judge (Senior Division) on 7th July, 2011, has been given effect to. Learned counsel appearing for the High Court states that in all 64 appointments to the said cadre have already been made.3. District Judge:There are 68 vacancies (27 current + 41 carried forward backlog) falling to the quota of direct recruits. It is stated that further steps to fill up the said vacancies could not be taken as the State Government vide Government Order ("G.O.") dated 31st March, 2011 had stopped recruitment in U.P. Higher Judicial Service till officers working in Fast Track Courts (156 numbers) were absorbed in the regular cadre as and when vacancies were to arise. Since the operation of the said G.O. has already been stayed by this Court vide order dated 19th October, 2011, we request the High Court to take necessary steps to fill up the said vacancies expeditiously. As against 27 vacancies falling to the quota of Limited Competitive Examination (accelerated promotion) only 3 vacancies could be filled up as 95 candidates who had appeared in the examination could not secure the minimum qualifying marks.However, we find that insofar as filling up of 54 vacancies falling to the share of promotees is concerned, there is no indication as to why the same are still lying vacant. We request the High Court to initiate the process to fill up these posts as well, as expeditiously as practicable.List the case for further orders on 2nd February, 2012 at 3.00 p.m.
I.A. NO.109 in C.A. NO. 1867 OF 2006
Taken on board.In view of our order dated 19th October, 2011, this application is rendered infructuous and is dismissed accordingly."(emphasis supplied)
It is thereafter that the High Court issued the advertisement on 8 March 2012 inviting applications for direct recruitment against 78 vacancies in the U.P. Higher Judicial Service. The advertisement required that applications could be filed by Advocate not less than 7 years standing as on 1 January 2013 and such applicants must also have attained the age of 35 years and must not have attained the age of 45 years as on 1 January 2013. Admittedly, the first petitioner did not satisfy this requirement of age as he was more than 45 years of age. The contention of the first petitioner is that since vacancies existed in 2011 but no advertisement was issued by the High Court, age requirement for the first petitioner should be taken as on 1 January 2012 not 1 January 2013.It is not possible to accept the contention of the first petitioner. Reasons had been indicated by the High Court in the counter affidavit for not issuing any advertisement in 2011. The State Government had sent a letter dated 31 March 2011 asking the High Court not to hold fresh recruitment till such time as appointments made in the Fast Track Courts were adjusted. It is for this reason that the High Court had filed I.A. No.109 in Malik Mazhar Sultan seeking directions for modification of the Government Order dated 31 March 2011 and for extension of the time schedule in conducting the recruitment. The Supreme Court on 19 October 2011 observed that the High Court should forthwith initiate the process for filling up the vacant posts by ignoring the letter dated 31 March 2011 sent by the State Government. On 24 November 2011, the Supreme Court granted time to the High Court to indicate the status of the vacancies and the steps taken to fill up the vacancies. A compliance affidavit was filed by the High Court and the Supreme Court passed a detailed order on 14 December 2011 requiring the High Court to initiate the process for filling up the posts. The advertisement was thereafter issued in March 2012.It has also been contended by learned counsel for the High Court that even the order dated 4 January 2007 passed by the Supreme Court in Malik Mazhar Sultan directed that the selections should be held as per the existing Judicial Service Rules in the respective States. The contention is that the recruitment has been conducted in accordance with the 1975 Rules.Rule 8 of the 1975 Rules deals with number of appointments to be made. It provides that the Court shall, from time to time but not later than three years from the last recruitment, fix the number of vacancies to be filled at the recruitment keeping in view the existing vacancies and those likely to occur in the next two years. There has been no violation of this Rule and in any case, the first petitioner has not been able to substantiate as to how this Rule violates the provisions ofArticle 14of the Constitution.The first petitioner has not pressed the challenge to Rule 12. The advertisement that was issued by the High Court in 2012 was in accordance with the age requirement prescribed in Rule 12. The first petitioner had appeared at the 2009 Examination but could not qualify. If no advertisement was issued in 2011, it was for the first petitioner to have approached the Court in time or to have moved an appropriate application in the matter pending before the Supreme Court. The High Court did move an application in the matter pending before the Supreme Court in Malik Mazhar Sultan and orders were passed, whereafter the advertisement was issued on 8 March 2012.The first petitioner was, therefore, clearly not eligible to appear at the examination. Thus, no relief can be granted to the first petitioner.The writ petition is, accordingly, dismissed.Order Date :- 8.5. 2017
Akram
(Dilip Gupta,J.)
(Vinod Kumar Misra,J.) |
bae499a9-920a-5f3e-b495-c3213d6ee8b3 | court_cases | Income Tax Appellate Tribunal - JaipurLakhani Shoee Co. Pvt. Ltd, vs Assessee on 15 September, 2016vk;dj vihyh; vf/kdj.k] t;iqj U;k;ihB] t;iqj
IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR
Jh ,-Mh- tSu U;kf;d lnL; ,oa Jh foØe flag ;kno] ys[kk lnL; ds le{k
BEFORE: SHRI A.D. JAIN, JM & SHRI VIKRAM SINGH YADAV, AM
vk;dj vihy la-@ITA No. 38/JP/2016
fu/kZkj.k o"kZ@Assessment Years : 2011-12
M/s Lakhani Shoe Co. Pvt. Ltd., cuke Assistant Commissioner
Plot No. 130, Sector-24, Vs. of Income Tax,
Faridabad. Circle-2, Alwar.
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AAACL 2991 A
vihykFkhZ@Appellant izR;FkhZ@Respondent
fu/kZkfjrh dh vksj l@
s Assessee by : Shri S.C. Vasudeva (CA)
jktLo dh vksj ls@ Revenue by: Shri R.A. Verma (Addl.CIT)
lquokbZ dh rkjh[k@ Date of Hearing : 14/09/2016
mn?kks"k.kk dh rkjh[k@ Date of Pronouncement : 15/09/2016
vkns'k@ ORDERPER: A.D. JAIN, J.M.
This is assessee's appeal for A.Y. 2011-12 filed against the order
dated 13/10/2015 passed by the ld. CIT(A), Alwar. The sole ground taken
by the assessee is as under:-"1 (a) That the learned CIT(A) had misdirected himself in
confirming the addition made by the learned
Assessing Officer amounting to Rs. 50,93,997/- out
of interest payment on loans on the alleged
contention that interest bearing funds have been
2 ITA 38/JP/2016_
M/s Lakhani Shoe Co. Pvt. Ltd. Vs ACIT
used for investment in M/s Mascot Footcare and
M/s Mascot Udyog.(b) Without prejudice to above, the ld. CIT(A) was not
justified in stating that the investment made in M/s
Mascot Footcare and M/s Mascot Udyog was Rs.3,34,80,424/- and Rs. 1,45,76,154/- respectively,
which is in actual the capital balance of the
appellant in the said concerns as on 31/3/2011.
The actual amount of investment was Rs.60,00,000/- and Rs. 45,00,000/- respectively and
the difference is on account of share of profit and
interest amount from the said concerns."2. While making the disallowance, the Assessing Officer observed as
follows:-"4.1 On perusal of the Audited balance sheet of the assessee
company, it was gathered that the assessee company has
invested Rs. 3,34,80,424/- in M/s Mascot Footcare, Noida
and Rs. 1,45,76,154/- in M/s Mascot Udhyog, Noida. The
assessee had shown a profit of Rs. 6,72,343/- from the
above two firms under the head other income in Schedule-8
of the profit and loss account.4.2 The directors of the assessee company are Mrs. Kamlesh
Lakhani, Mr. K.C. Lakhani and Mr. Gunjan Lakhani. The
Directors of the assessee company are also partners in the
above mentioned two firms i.e. M/s Mascot Footcare, Noida
and M/s Mascot Udhyog, Noida.3 ITA 38/JP/2016_
M/s Lakhani Shoe Co. Pvt. Ltd. Vs ACIT
4.3 The aggregate rate of return from the investment of the
assessee company in the above two firms is 1.40%. On the
other hand, the assessee is paying interest to Punjab
National Bank (PNB) and ICICI bank @ 12%. Hence on one
side the assessee had invested huge amounts in the firms
(in which directors of the firm are partners) at a very low
rate of return, on the other hand, the assessee company is
having loans on which it is paying interest @ 12% which is
very much higher than the rate of return from these
investments.4.4 If the assessee would not have made the above investment
he would have saved the amount of interest paid on
unsecured loan and Bank Loan to the extent of 10.60% i.e.
12%-1.40% of the investment made which comes to Rs.
50,93,997/- (10.40% of Rs. 4,80,56,578/-). Hence the
investment made by the assessee company was not
reasonable and it was detoriating to the interest of
company, therefore, it is not allowable.4.5 The assessee company vide order sheet entry dated
20.01.2014 was asked to show cause as under:-"As per schedule-5 of balance Sheet you have invested an
amount of Rs.33480424/- in M/s. Mascot Foot care, Noida and
Rs.14575154/- in M/s. Mascot Udhyog, Noida as capital
contribution out of interest bearing funds. The rate of return
from above two investments is below 2% and the rate of
payment of interest on Bank loans is 12%. Show cause as to why
4 ITA 38/JP/2016_
M/s Lakhani Shoe Co. Pvt. Ltd. Vs ACIT
the difference amount of interest should not be disallowed and
added to the income of the assessee as the same has not been
used for the purpose of the business of the company resulting in
mis-utilization of interest bearing funds of company."4.6 The assessee company filed its reply on 30.01.2014 on this
issue which is produced as under:-"In connection with the above assessment year and queries
raised at the time of last hearing, we beg to reply as under:-Please note that the investment in capital of M/s. Mascot
Foot care was made as under:-1. 1988-1989 Rs.5,00,000/-2. 1998-1999 Rs.25,00,000/-3. 1999-2000 Rs.30,00,000/-Similarly investment in capital of M/s. Mascot Udhyog was
made as under:-a) 1988-1999 Rs.5,00,000/-
b) 1999-2000 Rs.40,00,000/-After adding the profit year by year and interest, the capital
in M/s. Mascot Footcare become Rs.33480423.56 and in
M/s. Mascot Udhyog Rs.14576154.59 so it is incorrect that
the company has invested Rs.33480423.56 in M/s. Mascot
Footcate and Rs.14576154.59 in M/s. Mascot Udhyog. This
is the outstanding figure appearing as on 31.03.2011 which
comprises original investment upto date. Share of profit and
interest.Investment in the above firms were made not out of
borrowed funds but only out of internal accruals. The
5 ITA 38/JP/2016_
M/s Lakhani Shoe Co. Pvt. Ltd. Vs ACIT
internal accruals of M/s. Lakhani Shoe Co.(P) Limited when
the investment was made in M/s. Mascot Footcare was as
under:-Year Net Profit Depreciation Total Internal Investment
accruals made in M.F.
1988-1989 2109885 638684 2748569 500000
1998-1999 12322055 2546355 14868410 2500000
1999-2000 8232621 2796978 11029599 3000000
The assessment of the company is being made almost
regularlyu/s 143(3)of the Income Tax Act and based on
the above facts the department has never made addition on
this account. You are, therefore, requested not to make any
addition on this account.Similarly when the investment was made in M/s. Mascot
Udyog, Internal accruals of the company were as under:-Year Net profit Depreciation Total Internal Investment
accruals made in M.U.
1988-1989 2109885 638684 2748569 500000/-
1999-2000 8232621 2796978 11029599 4000000/-Moreover the assessment of the company is being made
almost regularlyu/s 143(3)of the Income Tax Act and
based on the above facts the department has never made
addition on this account. You are, therefore, requested not
to make any addition on this account on the basis of wrong
facts.We are also enclosing details of investment made by the
company and status of capital in each year will show that6 ITA 38/JP/2016_
M/s Lakhani Shoe Co. Pvt. Ltd. Vs ACIT
the present outstanding is on account of apart from original
investment share of profit in each year and interest
whenever the company received."4.7 The reply of the assessee was carefully considered and not
found to be acceptable due to the following reasons:-4.7.1 The business of the assessee company is
manufacturing of "Hawai Chappal" to earn profit
from such activities. Investment in some other firm
is not the part of business of the assessee, and
there is no profit to the business of the assessee
from such investment. Therefore, the amount of
capital of the assessee company remained invested
in the above partnership firms is not reasonable
and it should have been withdrawn.4.7.2 During the year under consideration the assessee
company has taken loan from PNB which has been
shown in the balance sheet under secured loans.The loan was sanctioned on 03.02.2010 and the
rate of interest on this loan is 12%. The assets of
the assessee company were also
hypothecated/Mortgaged for the aforementioned
loan. If the assessee would have withdrawan its
capital for the firms M/s. Mascot Footcare, Noida
and M/s Mascot Udhyog, Noida the need of taking
loan in the company would not have rised, and
7 ITA 38/JP/2016_
M/s Lakhani Shoe Co. Pvt. Ltd. Vs ACIT
liability of interest to bank would have been
avoided.4.7.3 On perusal of the partnership deeds it was found
that the assessee company is having 10% share in
the profits of both the firms i.e. M/s. Mascot
Footcare, Noida and M/s Mascot Udhyog, Noida but
the capital contribution of the assessee company in
both the firms is very high as compared to other
partners who are having larger share in the profits
of the firms.4.7.4. Most of the capital in M/s. Mascot Footcare and M/s
Mascot Udhyog is from the assessee company.
Furthermore, during the year under consideration
there was no business at all in M/s. Mascot Udhyog,
therefore, it is not justifiable as to why the
assessee company is keeping it funda idle and
taking interest bearing funds from the banks, even
the assessee is not receiving interest on capital
from the aforementioned two firms.4.7.5 It is also worthwhile to mention here that the
partners having less capital are taking most of the
profits as their profit sharing ratio is more. Even
few partners have debit balances of the capital
account are taking the major part of share of profit,
which clearly indicates that the modus operandi of
8 ITA 38/JP/2016_
M/s Lakhani Shoe Co. Pvt. Ltd. Vs ACIT
the company is such that it is intentionally causing
loss to itself.4.8 In view of above discussion and carefully considering the
reply of the assessee. An amount of Rs.5093997/- is added
to the income of by way of disallowance of interest on
unneeded loans, as it is clear that if the assessee would not
have kept the capital invested there would have no
requirement of the loans.4.9 Since the assessee has furnished inaccurate particulars of
income penaltyu/s 271 (1)(c)of the act will be initiated
separately."3. The ld. CIT(A) confirmed the assessment order by holding as
follows:"4.3 I have perused the assessment order as well as submissions
made by the appellant and find that a disallowance of
Rs.5093997/- out of the interest payments made by the appellant
on loans has been made by the AO on the ground that interest
bearing funds have not been used for the purpose of the
business. The AO has stated that an amount of Rs.3.34 Crores
stands invested as capital in M/s. Mascot Footcare and amount of
Rs.1.45 Crores stands invested as capital in M/s. Mascot
Footcare and amount of Rs.1.45 crores stands invested as capital
in M/s. Mascot Udhyog. The profits earned on the investment
made by the company is only 1.40% and the rate of interest paid
by the appellant at 12% is much higher and therefore a
disallowance @ 10.60% on the interest paid on unsecured and
9 ITA 38/JP/2016_
M/s Lakhani Shoe Co. Pvt. Ltd. Vs ACIT
bank loan has been made by the AO which comes to
Rs.5093997/- (10.60% of Rs.48056578/-).4.4 The appellant has stated that an investment of Rs.60 lacs has
been made in M/s. Mascot Footcare and an investment of Rs.45
lacs was made in M/s. Mascot Udhyog by the appellant during
1998-2000. The remaining balance represents investments out of
internal accrual and not out of borrowed funds. Therefore, there is
no justification in making the disallowance out of interest
payments made by the company.4.5 Having considered the submissions made by the appellant and
evidence available on record, I find that the concerns in which the
appellant company has made substantial investment fall within the
ambit of specified persons as defined in the provisions ofsection
40A(2)(b)of the IT Act. The Directors/Share holders of the
company are having substantial interest in the above mentioned
firms, in which the appellant company has invested substantial
amounts as capital + accumulated profits over the years.4.6 The appellant has merely reiterated the submissions filed before
the AO and has not been able to produce any evidence so as to
controvert the findings given by the AO. Further, on examination
of these facts, I do not find any argument or justification being
given by the appellant for obtaining huge loans and their utilization
for the purposes of the business of the company. Moreover, there
is no justification for payment of interest on loans, whereas the
funds of the company have been parked in other concerns where
related persons are holding substantial interest. Hon'ble Kerala
High Court has held in the case ofCIT v/s Accelerated Freeze
Drying Pvt. Ltd.324 ITR 316 that interest paid is not deductible-as
10 ITA 38/JP/2016_
M/s Lakhani Shoe Co. Pvt. Ltd. Vs ACIT
money was given to sister concern without interest.Further,
Hon'ble Allahabad High Court has in the case ofCIT v/s Sahu
Enterprises Pvt. Ltd.352 ITR 008 has held that onus is on
assessee to prove utilization of borrowed funds for the purposes
of business. Interest was held not allowableu/s 36(1)(iii)of the IT
Act.4.7 It is not denied by the appellant that the percentage of share of
profits being given to the company is disproportionate to the
amount of investment made vis-a-vis the percentage of share of
profits and the investment made by other persons (who are share
holders/ directors of the appellant company). The appellant has
not been able to controvert that the interest payments made are
justifiable in view of the utilization of the funds. Further, I find that
this issue has already been considered by the undersigned in the
case of the appellant for A.Y. 2010-11 in appeal No.51/2013-14
vide order dated 14.08.2014.4.8 Since there is no change in the facts of the case, therefore,
following the order passed for the preceding year, I uphold the
action of the AO in making the disallowance and confirm the
addition of Rs.50,93,997/- out of the interest payments on loans
claimed by the company."4. The ld. Counsel for the assessee has contended that the issue
under consideration stands decided in favour of the assessee by the
order dated 18/03/2016 (APB 54 to 65) passed by the Tribunal in the
assessee's own case for the immediately preceding assessment year, i.e.,
A.Y. 2010-11, in ITA No. 724/JP/2014.11 ITA 38/JP/2016_
M/s Lakhani Shoe Co. Pvt. Ltd. Vs ACIT5. Per contra, the ld. Sr. DR has placed strong reliance on the
impugned order.6. Having considered the rival contentions of both the parties in the
light of the material placed on the record, it is seen that for the
immediately preceding assessment year, i.e., A.Y. 2010-11, this very
issue of disallowance of interest was before the Tribunal. The Tribunal,
vide order dated 18/3/2016, has decided the matter in favour of the
assessee as follows:-"4.1. We have heard the rival contentions of both the parties and
perused the material available on the record. The only point
raised in the appeal in the aforesaid matter is with regard to
the disallowance of Rs 48,85,314/-out of interest of Rs
1,91,99648/-paid by the appellant to the bank as well as to
the other parties. It was contended by the ld AR for the
assessee that the investments in the partnership firm were
not made in the year under consideration and were made in
earlier years. In fact the detail has been provided to the
assessing officer in the following manner:M/s Mascot Footcare M/s Mascot Udyog
Year Amount Year Amount
1988-89 500000/* 1988-89* 500,000
1998-99 25,00,000 1999-2000 40,00,000
1999-2000 30,00,000
12 ITA 38/JP/2016_
M/s Lakhani Shoe Co. Pvt. Ltd. Vs ACIT
*As per *As per the
assessee assessee it
Should be Rs should have
125000/ 89 been1989-90
and Rs
375000/ in
1989-90It was thereafter submitted that the capital initially
contributed has increased on account of the share profit and
interest accruing to the assessee. It was submitted that no
borrowed funds were utilized during those years for making
the investment in the above said concerns.4.2. The ld. D/R for the revenue has submitted that the
investment in these concerns were not part of the business
of the assessee company and there is no profit to the
business of that the assessee from such investment. It was
further submitted that the assessee company has taken a
loan from the Punjab National Bank at the rate of 12% and
it was submitted that if the assessee company has
withdrawn the investment from these concerns then there
was no necessity to take the loan from the Punjab National
bank. It was also highlighted that the share in the profit of
the assessee is only 10% whereas a capital consideration is
very high in comparison to the other partners of the firm.4.3. The ld D/R further submitted that M/s Mascot Udyog is not
doing any business and the capital of the assessee is lying
blocked and no steps have been taken by the assessee to
13 ITA 38/JP/2016_
M/s Lakhani Shoe Co. Pvt. Ltd. Vs ACIT
recall the capital investment made by it. The assessee not
recalling the investment from M/s Mascot Udyog and taking
loan from Punjab National bank, clearly shows that the
commercial interest of the assessee has been compromised
by the assessee. It was submitted on behalf of the revenue
that the M/s Mascot Udyog had invested the major amount
in equity shares of M/S Lakhani India Ltd. Thus ld DR,
emphasised that the money of the assessee has been
rooted for the purchase of equity shares of M/S Lakhani
India Ltd . Thereafter it was submitted that there was no
justification for payment of interest on loans taken from the
related persons and banks.4.4. In our view, the admitted position as emerges from the
record is that the assessee has made investments in M/s
Mascot Footcare and M/s Mascot Udyog prior to the
assessment year 1999-2000 and the said investment made
by the assessee in those years have increased many folds
on account of the profit, interest etc. to the tune of Rs
47,38,4234/-. Moreover it is also an admitted position that
out of the said available funds, the said concerns had
invested in Ms Lakhani India Ltd. The assessment year in
which the investments were made in the equity share of
M/s Lakhani India Ltd, by M/s Mascot Udyog were as under:-1995-96 Rs 24378150
1996-97 Rs 351110
14 ITA 38/JP/2016_
M/s Lakhani Shoe Co. Pvt. Ltd. Vs ACIT
2001-02 Rs 237144
Total Rs 24966404Thus it is clear that no investment were made in M/s
Lakhani India Ltd in the year under consideration. The
assessing officer had failed to prove the nexus between the
interest paid to the related parties and bankers and the
investment made by the assessee in the current assessment
year. No new investments were made by the assessee in
the year under consideration.4.5. In our view the assessee was able to establish that he had
incurred the expenditure wholly and exclusively for the
purpose of business and therefore there is no justification
for the revenue to disallowance the interest component. The
revenue cannot claim to put itself in the armchair of the
businessman and decide how much is reasonable
expenditure. The revenue is required to examine the issue
from the perspective of the prudent businessmen rather
from its own angle. Revenue authorities have failed to bring
on record any cogent evidence and material to show that
the borrowed funds have been utilized for the purposes of
investment and were not used for the business purposes. It
would be relevant to reproduce below the finding recorded
by the assessing officer in paragraph 4.3 to the following
effect:"4.3 the aggregate rate of return from the investment of
the assessee company in the above two firms is 1.69%. On
15 ITA 38/JP/2016_
M/s Lakhani Shoe Co. Pvt. Ltd. Vs ACIT
the other than the assessee is paying the interest on
unsecured loan from Shri Gunjan Lakhani @12% and interest
to Punjab National bank @ 12%. Hence on one side the
assessee had invested huge amounts in the firms ( in which
directors of the firms are partners) at the very low rate of
return, on the other hand the assessee company is having
loans on which it is paying interest@ 12% which is very
much higher than the rate of return from these investment ""In our view the authorities below have failed to bring on
record any material which shows that the borrowed funds
have not been used for the purposes of business. In the light
of the above the appeal of the assessee is required to be
allowed as no fresh investment has been made in the year
under consideration and further no loan amount was used
for that purposes.4.6. Our view is also supported by the judgment of Hon'ble
Supreme Court in the matter ofHero Cycle Ltd. vs. CIT, 63
Taxman.com 308 wherein it is held as under :-12.Insofar as loans to the sister concern/subsidiary company are
concerned, law in this behalf is recapitulated by this Court in the
case ofS.A. Builders Ltd. v. CIT (Appeals) [2007 (288) ITR 1/158
Taxman 74]. After taking note of and discussing on the scope of
commercial expediency, the Court summed up the legal position in
the following manner:--'26. The expression "commercial expediency" is an
expression of wide import and includes such expenditure as
a prudent businessman incurs for the purpose of business.
The expenditure may not have been incurred under any legal
obligation, but yet it is allowable as a business expenditure
if it was incurred on grounds of commercial expediency.16 ITA 38/JP/2016_
M/s Lakhani Shoe Co. Pvt. Ltd. Vs ACIT27. No doubt, as held inMadhav Prasad Jatia v. CIT[1979
(118) ITR 200 (SC)], if the borrowed amount was donated
for some sentimental or personal reasons and not on the
ground of commercial expediency, the interest thereon could
not have been allowed undersection 36(1)(iii)of the Act.InMadhav Prasad's case [1979 (118) ITR 200 (SC)], the
borrowed amount was donated to a college with a view to
commemorate the memory of the assessee's deceased
husband after whom the college was to be named, it was
held by this court that the interest on the borrowed fund in
such a case could not be allowed, as it could not be said that
it was for commercial expediency.28. Thus, the ratio ofMadhav Prasad Jatia's case [1979
(118) ITR 200 (SC)] is that the borrowed fund advanced to a
third party should be for commercial expediency if it is
sought to be allowed undersection 36(1)(iii)of the Act.29. In the present case, neither the High Court nor the
Tribunal nor other authorities have examined whether the
amount advanced to the sister concern was by way of
commercial expediency.30. It has been repeatedly held by this court that the
expression "for the purpose of business" is wider in scope
than the expression "for the purpose of earning profits" videCIT v. Malayalam Plantations Ltd.[1964 53ITR 140 (SC),
CIT v. Birla Cotton Spinning and Weaving Mills Ltd.[1971
82 ITR 166 (SC)], etc.'13.In the process, the Court also agreed that the view taken by the
Delhi High Court inCIT v. Dalmia Cement (P.) Ltd. [2002] 254
ITR 377/121 Taxman 706 wherein the High Court had held that
once it is established that there is nexus between the expenditure
and the purpose of business (which need not necessarily be the
business of the assessee itself), the Revenue cannot justifiably
claim to put itself in the arm-chair of the businessman or in the
position of the Board of Directors and assume the role to decide
how much is reasonable expenditure having regard to the
circumstances of the case. It further held that no businessman can
be compelled to maximize his profit and that the income tax
authorities must put themselves in the shoes of the assessee and see
how a prudent businessman would act.The authorities must not
17 ITA 38/JP/2016_
M/s Lakhani Shoe Co. Pvt. Ltd. Vs ACIT
look at the matter from their own view point but that of a prudent
businessman."Further, the Hon'ble Jurisdictional High Court in the matter ofCIT vs. Ram Kishan Vermahas held as under :-13. Taking into consideration the fact as noticed hereinabove, in
our view as well, when there was no agreement to charge interest
from the persons, to whom the assessee advanced short term
loan/advance, the AO could not disallow part of the interest. It is
also an admitted fact, as observed by the Tribunal, that the AO .vas
not able to pin pointedly come to a definite conclusion that how
interest bearing loans had been diverted towards interest free
advances and since the AO was not able to prove nexus between
interest bearing loans vis-a-vis interest free loans/advances,
therefore, in our view as well, once the AO was not able to come to
a definite conclusion as to nexus having been established about
interest bearing loans having been diverted towards interest free
loans/advances, and such being a finding of fact based on
appreciation of evidence, in our view no substantial question of law
arise on this question as well. It can be observed that this court in
similar circumstances and on identical facts, when the capital of the
partners/proprietor being more than the interest free short term
advances, has in the case of CIT v. Vijay Solvex Ltd. [2015] 59
taxmann.com 294 (Raj.) while relying on the judgment rendered in(a) S.A. Builders Ltd. v. CIT (Appeals) [2007] 288 ITR 1/158
Taxman 74 (SC); (b), Munjal Sales Corpn. v. CIT[2008] 298 ITR
298/168 Taxman 43 (SC); (c), CIT v. Radico Khaitan Ltd.[2005]
274 ITR 354/142 Taxman 681 (All.); (d), CIT v. Dalmia Cement
(P.)Ltd. [2002] 254 ITR 377/121 Taxman 706 (Delhi); (e), CIT v.Britannia Industries Ltd. [2006] 280 ITR 525/[2005] 148 Taxman
654 (Cal.) and (f) CIT v. Motor Sales Ltd.[2008] 304 ITR 123
(All.), held as under:--"16. In view of the authoritative pronouncement of the Apex
Court and other judgments referred supra, in our view, the
assessee admittedly had its own funds, as referred to earlier,
and admittedly such funds/reserves being substantially
higher than, even otherwise, the advances to the debtors, no
notional interest or hypothetical interest could have been
disallowed on such facts. The revenue has failed to prove
18 ITA 38/JP/2016_
M/s Lakhani Shoe Co. Pvt. Ltd. Vs ACIT
nexus. In our view, the ITAT has correctly appreciated the
facts and law."Similar views have been expressed by Hon'ble Madras High
Court in the matter ofCIT vs. Premier Poly Sacks Pvt. Ltd.,
321 ITR 450 (Mad).5. In the result, appeal of assessee is allowed."7. The facts in the year under consideration are not any different
from those in A.Y. 2010-11. Even the ld. CIT(A) has observed in the
impugned order, inter alia, that the issue had been considered by him in
his order dated 14/8/2014, in the assessee's case for A.Y. 2010-11. It
was the said order of the ld. CIT(A) for A.Y. 2010-11, against which the
assessee's appeal was allowed by the Tribunal vide its aforesaid order
dated 18/3/2016.8. Therefore, respectfully following the Tribunal order (supra), in the
assessee own case for A.Y. 2010-11, the disallowance made for the year
under consideration is deleted.9. We hold that no nexus between the borrowed funds in the
investments made having been proved and the borrowel having been
made for business purposes, the interest thereon is allowable U/s
36(1)(iii) of the Act. Too, as per record, the assessee is a partner in M/s
19 ITA 38/JP/2016_
M/s Lakhani Shoe Co. Pvt. Ltd. Vs ACIT
Mascot Footcare, Noida and M/s Mascot Udhyog, Noida, where the
assessee made capital contribution out of its own internal accruals, which
contributions have grown over time due to share of profit and interest
on capital.10. In view of the above, the grievance of the assessee is found to be
justified and is accepted as such and the order under appeal is cancelled.11. In the result, the appeal of the assessee is allowed.Order pronounced in the open court on 15/09/2016.Sd/- Sd/-
¼foØe flag ;kno½ ¼,-Mh tSu ½
(Vikram Singh Yadav) (A.D. Jain)
ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member
Tk;iqj@Jaipur
fnukad@Dated:- 15th September, 2016
*Ranjanvkns'k dh izfrfyfi vxzfs 'kr@Copy of the order forwarded to:1. vihykFkhZ@The Appellant- M/s Lakhani Shoe Co. Pvt. Ltd., Faridabad.2. izR;FkhZ@ The Respondent- The ACIT, Circle-2, Alwar.3. vk;dj vk;qDr@ CIT4. vk;dj vk;qDr@ CIT(A)5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur6. xkMZ QkbZy@ Guard File (ITA No. 38/JP/2016)
vkns'kkuqlkj@ By order,
lgk;d iathdkj@Asst. Registrar |
b9ab76cf-cf40-542e-80f6-b8d4197a7900 | court_cases | Lok Sabha DebatesNeed To Amend Forest Conservation Act So As To Enable Disbursement Of Surplus Land ... on 1 December, 2005>
Title : Need to amendForest Conservation Actso as to enable disbursement of surplus land amongst the landless people in the country.श्रीरामदास आठवले(पंढरपुर) :उपाध्यक्ष महोदय, हमारे देश में विशेषकर अनुसूचित जातियों एवं जनजातियों के ऐसे लोगों की संख्या बहुत अधिक है, जिनके पास रहने के लिए अथवा अपनी जीविका चलाने के लिए खेतीबाड़ी हेतु एक इंच भी भूमि नहीं है। लेकिन दूसरी ओर देश में लगभग आठ करोड़ एकड़ भूमि सरप्लस है। यदि इस भूमि को और फोरेस्ट कंजर्वेशन एक्ट में जरूरी संशोधन करके अतरिक्त भूमि को भूमिहीन लोगों मे वितरित कर दिया जाये तो इससे न केलव सरप्लस भूमि का समुचित उपयोग किया जा सकेगा बल्कि देश के गरीब भूमिहीन लोगों को अपना सिर छिपाने के लिए स्थान मिल सकेगा और साथ ही वे खेतीबाड़ी के जरिए अपना जीवन निर्वाह भी कर सकेंगे। इस प्रकार से गरीब भूमिहीन लोगो को गरीबी रेखा से ऊपर उठाने में मदद मिलेगी और साथ ही वे लोग राष्ट्र की मुख्यधारा से भी जुड़कर देश के उत्थान हेतु अपना सहयोग प्रदान कर सकेंगे।अत: मेरा सदन के माध्यम से केन्द्र सरकार से अनुरोध है कि देश की सरप्लस भूमि को और फोरेस्ट कंजर्वेशन एक्ट में जरूरी संशोधन करके अतरिक्त भूमि को देश के गरीब एवं दलित समुदाय के भूमिहीन लोगों में आबंटित किए जाने हेतु जरूरी कारगर कदम उठाए जाएं। |
8b73ae5f-1eea-51a5-ba2b-fdc5dc961bf8 | court_cases | Allahabad High CourtRameshwar vs Din Dayal on 8 April, 1949Equivalent citations: AIR1952ALL424, AIR 1952 ALLAHABAD 424JUDGMENT
Desai, J.1. Rameshwar appellant filed one suit against Din Dayal respondent on the basis of a promissory note in August 1942. In the same month, he filed another suit on the basis of another promissory note against Din Dayal respondent in the connected second civil appeal No. 269. Rameshwar is a resident of village Nawwa Behar whereas Bhagirath and Din Dayal are residents of village Shankerpur. A process server accompanied by Rameshwar took the summonses to Shankerpur for service on Din Dayal and Bhagirath on 18.8.1942. The process server wrote identical reports on the summonses to the effect that they were offered to the defendants (Din Dayal and Bhagirath), that they refused to accept
them in spite of his entreaties and that perforce he had to affix them on their doors. The reports purport to have been signed by the appellant and two witnesses. Neither of the respondents appeared when the suits were called cut for hearing on 16-9-1942 and the Court proceeded ex parte against them and decreed the appellant's claims in full. The respondents did not apply for the setting aside of the ex parte decrees but instead filed two separate suits against the appellant for the cancellation of the decrees. They alleged that the promissory notes on which he filed the suits were forged, that he fraudently prevented them from getting information about the suits by procuring false reports of service of summonses and that consequently the decrees were liable to be set aside on the ground of fraud. They denied that the summonses were offerred to them and were refused by them. The relief sought was that the decrees be set aside and that it be declared that they are null and void as against them. The suits were contested, as was expected. The appellant denied that he was guilty of any fraud in the service of the summonses and asserted that the reports of the service were correct and genuine and that the promissory notes were also genuine. He also took the plea that the suits were not maintainable. The trial Court held that the decrees could not be set aside on the ground that the promissory notes were forged, that the reports of the service of the summonses were correct and that the appellant was notguilty of fraud and dismissed the suits. The respondent went up in appeal to the District Judge allowed their appeals. The learned Judge held that the appellant had perpetrated fraud by obtaining fictitious reports of service on the summonses, that they were really not offered to the respondents, that the respondents had no knowledge of the suits and that the decrees passed against them were vitiated by fraud. He, therefore, declared the decrees to be null and void.2. It was not seriously disputed before me that the decrees could be set aside on the ground that they were obtained by fraud, the fraud being that the respondents were kept back from the knowledge that the suits had been filed against them and would be disposed of finally on 16-9-1942. If there is any doubt I would refer to Jagrup v. Ram Sabad, 1941 Oudh W. N. 1202, in which an ex parte decree was set aside on a similar ground.3. In this second appeal it is not open to the appellant to challenge findings of fact. It has been found by the learned District Judge that be secured false reports of service of the summonses without their having been offered to the respondents. It is admitted that he was present when the process-server is said to have offerred the summonses and the respondents are said to have refused to accept them. When it is found, as matters of fact, that neither were the summonses offered to the respondents nor were they
refused by them and that the appellant was present, it cannot be doubted that he was in league with the process-server and that he prevailed upon him to write false reports on them that they had been offered to, and refused by, the respondents. Thereby he prevented the respondents from appearing in Court on 16-9-1942 which was the date entered in the summonses to contest them. This was clearly a fraud and no attempt was made to argue that it was not.4. The learned District Judge had simply to see whether the appellant had practised fraud in the matter of service of the summonses or not. He was not trying the original suits act was not concerned with their merits. He himself recognised this and said so in his judgment. Still be took into consideration the fact that the prcmis. sory note said to have been executed by Bhagirath did not bear his thumb mark and was a forgery. The trial Court had examined an expert to prove that it was a forgery. It purports to bear Bhagiraith's thumb mark but the expert deposed that the thumb mark on it does not tally with Bhagirath's thumb mark. I do not see anything illegal in the act of the learned Judge's paying consideration to the fact that the promissory note was forged. He had to consider whether the absence of the respondents on the date fixed for the hearing in the original suits was deliberate or was on account of their not receiving any information that the suits were to come up for hearing on 16.9.1942. He had to consider whether they bad any reason to abstain from attendance in the Court if they hai received this information. When he found that the promissory note of Bhagirath was forged and, of course, Bhagirath must have known that it was forged, it was clear that Bhagirath had absolutely no reason to abstain from attendance in the Court on 36 9-1942 and that if he had any information that the suit against him was fixed for bearing on that date he must have attended it. If he did not attend it, it must have been because he had no information. What a party thicks about the merits of his case is a relevant fact to be considered when one has to see why he was absent when the suit was called out for hearing.5. It seems to me that the real object behind these appeals was to have the suits retried. It was contended on behalf of the appellant that when the ex parte decrees were set aside by the learned District Judge he should have ordered the suits to be retried. I have mentioned what relief was claimed by the respondents. They had claimed the relief of declaration that the decrees were null and void and not binding on them. They had not claimed that the suits be retried. When they had alleged that the promissory notes on the basis of which they had been filed were forged, naturally they would not have asked for retrial of the suits. The appellant in his written statement also made no counter claim that in
case the decrees were set aside as fraudulently obtained the suits should be retried. It did not appear that he made any such request orally in either Court below, Therefore, when there was no request by either party that the suits be retried, the learned District Judge was not wrong in contenting himself with only granting the declaration. If the effect of his declaring the decrees to be null and void is that only the decrees are set aside and that the suits should be deemed to be pending, it is open to the appellant to approach the trial Court and ask it to resume proceedings in the suits. It will then be for the trial Court to determine the effect of the declaration granted by the learned District Judge. It was not necessary, in that case, for the learned District Judge to mention the effect of the declarations in his judgments. It is for a party to know the law. It is cot for a Court to give any advice to a party on any matter, even of law. If the effect of the bare declarations is not to revive the suits and if they could be revived only if the learned District Judge while granting the declarations had ordered them to be retried, then it wag necessary for the appellant to have made a counter-claim for this purpose. There is no law that he was bound suo motu to order retrial of the suits. If it was necessary for the learned District Judge to order the retrial expressly the effect of his refraining from ordering retrial is that the suits have been dismissed without being heard on merits. The fraud was committed after the suits had been instituted and had it not been committed, they would have been heard on merits. So it can be argued with some show of force that when the effect of the fraud is nullified by granting the declarations, the suite should be reheard on merits. The appellant had two alternatives when he instituted the suits. One was to have them heard on merits and the other was to have them heard regardlees of merits by preventing the hearing on merits through fraud. One is entitled to ask him why, when he chose to have them heard regardless of merits and failed, he should be allowed to fall back upon the other alternative to have them heard on merits and why when he chose to have them heard regardless of merits it should not be inferred that he himself realised that on merits he would fail. It stands to reason that if he thought that he had a strong case on merits he would not have resorted to fraud to prevent the respondents from appearing in Court to contest them. In the case of Jagrap (1841 Oudh W N. 1202), the facts in which were similar to those in the present suits, the decree was simply set aside and the suit was not ordered to be retried. Bennett J,, of the Chief Court of Oudh delivering the judgment, observed on page 1204 :"There is no reason, therefore, why anything should be added by this Court to the decree passed, and certainly there should be no declaration that the appellant is
entitled to continue the proceedinga in the Court of the Munsif Bangaon from the stage which they had reached prior to the passing of the decree."6. I respectfully agree with this observation, Where retrial has been ordered it is in those cases in which the relief sought by the plaintiff himself was of retrial after setting aside the decree fraudulently obtained against him. Where a person challenges the decree only on the ground of fraud and does not allege that the suit itself was false, there may be some justification for
ordering retrial when the decree passed in it is set aside on the ground of fraud. But here it was alleged by the respondents that the suits were false. The respondents had an alternative of having the ex parta decrees set aside under Order 9, Rule 13, Civil P. C. on the ground that they were prevented by sufficient cause from appearing in Court. But they had also the alternative of having them set aside through a separate action on the ground of fraud. They were not bound to have recourse to the remedy allowed under Order 9, Rule 13. In Hip Foong Hong v. H.Nevatia & Co., (1918) A. C. 888, there was an application by the defendant for a new trial of the suit on
the ground of fraud and so the suit was ordered to be retried. In Williams v. Preston, (1882) 20 Ch. D. 672, there was an appeal from a decree together with an application for retrial on the ground that the decree had been obtained by fraud and it was held that if fraud was established the application for retrial would be granted. In Cole v. Langford, (1898) 2 Q. B. 36, on a separate suit a decree was set aside on the ground that it was obtained by fraud and no direction was given for retrial of the suit. The learned District Judge was, therefore, quite right in simply setting aside the decrees and not saying anything about the retrial of the suits.7. The appeal fails and is hereby dismissed with costs. This judgment will govern second civil appeal No. 269 of 1944 also. |
aa45650b-bab3-57d5-bdd9-7a911099184e | court_cases | Jharkhand High CourtIslam Ansari vs State Of Jharkhand on 4 May, 2017Author:D.N. PatelBench:D.N.Patel,Ratnaker BhengraIN THE HIGH COURT OF JHARKHAND AT RANCHI
I.A. No. 1325 of 2014
IN
Cr.Appeal (DB) No.1067 of 2012
Islam Ansari ---------- ------------ Appellant
Vrs.
The State of Jharkhand ---------- ----------- Respondent
CORAM: HON'BLE MR. JUSTICE D.N.PATEL
: HON'BLE MR. JUSTICE RATNAKER BHENGRA
----------
For the Appellant : Mr. Abdul Kalam Rashidi, Advocate.
For the Respondent : A.P.P.
----------
06/Dated: 4th May, 2017Per D.N. Patel, J.1. This interlocutory application has been preferred undersection 389 (1)of
the Code of Criminal Procedure for suspension of sentence dated 5th , September,
2012 awarded to appellant by Additional Sessions Judge-1 st, Lohardaga in
Sessions Trial No. 767/98(s), whereby the concerned court directed the appellant
to undergo rigorous imprisonment for ten yearsu/s 458IPC, rigorous imprisonment
for five years for the offence punishable undersection 387I.P.C. and life
imprisonmentu/s 364IPC.2. We are surprised to note the number of the Sessions Trial. In 24 districts in
the State of Jharkhand there are 25 methods of giving number in Sessions Trial
cases for which this court has passed order in not less than one dozen cases to
give the number of the Sessions Trial under one denomination. This case is not
exception of variety of methods of giving Session Trial number.3. Having heard counsel appearing for both sides and looking to the
evidences on record and, especially evidences given by P.Ws. 1,3,5 ,6 and P.W. 7
there is prima facie case against this applicant-accused.4. Looking to the gravity of offence, the quantum of punishment and the
manner in which the appellant is involved in the offence of kidnapping , we are not
inclined to suspend the sentence, awarded by the trial court, to the present
appellant. Test Identification Parade has been convened and this appellant
accused has been identified. Amount of ransom was demanded and was also paid.
Looking to the evidence on record, there is more than prima facie cases against
this applicant. Hence, we are not inclined to suspend the sentence awarded to him
by the learned trial court. Previously also, prayer for suspension of sentence was
rejected by speaking order dated 9th January, 2013 and there is no change in
circumstances whatsoever thereof except efflux of time.-2-5. Nonetheless, if the counsel for the applicant is ready to argue out the
criminal appeal for its final hearing during ensuing summer vacation, he is at liberty
to give slip to this Court for fixing the date of final hearing, during the ensuing
summer vacation.6. In view of the aforesaid reasons there is no substance in this interlocutory
application, which is, accordingly, dismissed with above observations.(D.N.Patel, J.)
(Ratnaker Bhengra, J.)
Sharda/Nibha |
0b2ca01f-b762-5220-8968-74b8dd85ac5d | court_cases | Himachal Pradesh High CourtOriental Insurance Company vs Smt. Vrinda Devi And Others on 9 December, 2015Author:Sanjay KarolBench:Sanjay KarolIN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO No.378 of 2007
Date of Decision : December 9, 2015
.Oriental Insurance Company ....Appellant.versus
Smt. Vrinda Devi and others ...Respondents.Coram:The Hon'ble Mr. Justice Sanjay Karol, Judge.of
For the Appellant : Mr. G.C. Gupta, Senior
Advocate, with Ms Meera Devi,
Advocate.For the Respondents :rt Mr. Raman Sethi, Advocate, for
respondents No.1 to 4.Sanjay Karol, Judge
Appeal stands admitted on the following
substantial questions of law:1. Whether it has been proved on the
record that the deceased was a
workman as per provisions of theWorkmen Compensation Actand died
while he was driving the vehicle during
the course of his employment?2. Whether in the case of a petition under
theWorkmen Compensation Act, it is
not required that the deceased should
possess a valid and effective driving
licence at the time of accident to make
the Insurance Company liable to pay
the compensation.::: Downloaded on - 15/04/2017 19:27:41 :::HCHP...2...3. Whether in the facts and
circumstances of the case it has been
proved on the record that the
deceased died in the accident during
the course of his employment with
.respondent No.5?4. On 3.3.2003, vehicle owned by Surinder
Singh (respondent No.5 herein), driven by his brother
Mohender Singh (deceased), met with an accident, as a
of
result of which Mohender Singh died. Claimants
(respondents No.1 to 4 herein), as his legal heirs, filed
a petition for grant of compensation, under the
rtWorkmen Compensation Act, in which compensation in
the following terms stands awarded:"For reasons recorded hereinabove all
the issues are decided in favour of the
applicants and application for compensation
is accepted. Compensation amount is
awarded at the age of factor of 32 years,
wages Rs.4000/- with interest @12% is
granted keeping in view the judgement
passed in FAO No.145 of 1998 decided on
26.5.2005, which shall be paid byh the
respondent No.2 to the defendants of the
deceased Workman as calculated
hereunder:1. Compensation award on age factor 32
years 2000/-X203.85 = 4,07,7002. Interest @ 12% w.e.f.(03.04.2003 to 22.05.2007) = 1,95,696
Total = 6,03,396::: Downloaded on - 15/04/2017 19:27:41 :::HCHP...3...5. Assailing the award dated 22.5.2007,
passed by Workmen Compensation Commissioner,
Rampur Bushahr, District Shimla, Himachal Pradesh, in
.Case No.4/05 (3/06), titled as Smt. Vrinda Devi &
others v. Surinder Singh & another, Mr. G.C. Gupta,
learned Senior Advocate, appearing for the Insurer,
refers to and relies upon the decisions rendered in
of
Gottumukkala Appala Narasimha Raju and others v.National Insurance Co. Ltd. and another, 2007 ACJ
rt
1025;Oriental Insurance Co. v. Santosh Devi and
another, 2011 (Suppl.)Him L.R. 1715; and Brahmu
Ram and another v. United India Insurance Company
and another, 2009(2) Shim.LC 26.6. On the other hand, while supporting the
award, Mr. Raman Sethi, learned counsel appearing for
the claimants, refers to and relies upon the decisions
rendered inT.S.Shylaja v. Oriental Insurance Company
& another, I (2014) ACC 132 (SC); andOriental
Insurance Company v. Deepa & others, III (2014) 218
(HP).7. At the threshold, it be only observed that
the cases referred to and relied upon by Mr. G.C.::: Downloaded on - 15/04/2017 19:27:41 :::HCHP...4...Gupta, learned Senior Advocate, are not applicable to
the given facts and circumstances.8. Noticeably, the claimants, in the claim
.petition, have categorically averred that Mohender
Singh was employed by Surinder Singh as a driver. The
vehicle in question was insured with the Insurer.Mohender Singh, at the time of accident, which took
of
place on 3.3.2003, was on duty and died on the spot.Report was instantly lodged with the police and FIR
rt
No.17, dated 3.3.2003 was registered at Police Station,
Ani, District Kullu, Himachal Pradesh. Claimants being
dependents and legal heirs were entitled for just and
fair compensation.9. In response to the petition, the owner not
only admitted contents of the application, but also
categorically asserted such fact.10. Significantly, in response to the petition,
Insurer did not plead collusion or fraud and except for
mere denial with regard to the factum of employment
or death having occurred during the course of
employment, did not make any assertions.::: Downloaded on - 15/04/2017 19:27:41 :::HCHP...5...11. Record reveals that the factum of
employment and death having taken place during the
course of employment, as a result of the accident,
.stands established through the evidence led by the
claimants. Whereas no evidence whatsoever was led
by the Insurer, but however, the owner stepped into
the witness box and proved the factum of employment
of
and the driver possessing a valid and effective driving
licence. It is in this backdrop that the decisions in T.S.
rtShylaja(supra) andDeepa(supra), referred to and
relied upon by the learned counsel for the claimants,
are squarely applicable to the instant facts.12. The initial burden of proving the factum of
employment and death having taken place during the
course of employment stood discharged by the
claimants, hence it was for the Insurer to disprove the
same.13. Even in Gottumukkala (supra), the Court
has acknowledged certain fact situations, where even a
husband can be under employment of the wife.14. Hence, it cannot be said that the claimants
have failed to prove that the deceased was a workman::: Downloaded on - 15/04/2017 19:27:41 :::HCHP...6...or did die during the course of employment or that he
did possess a valid and effective driving licence at the
time of occurrence of the accident. Substantial
.questions of law are answered accordingly.Appeal stands disposed of, so also the
pending application(s), if any.of
( Sanjay Karol ),
December 9, 2015(sd) Judge.
rt::: Downloaded on - 15/04/2017 19:27:41 :::HCHP |
49a8aab8-40e7-592a-831e-d360da602d6d | court_cases | Bombay High CourtCommissioner Of Income Tax-2 vs Hdfc Bank Ltd on 23 July, 2014Author:B.P. ColabawallaBench:S.C. Dharmadhikari,B.P. Colabawallavrd 1 ITXA330/12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INCOME TAX APPEAL NO.330 OF 2012
Commissioner of Income Tax-2,
Mumbai 400 020 ...Appellant
v/s
HDFC Bank Ltd. ...RespondentMr Suresh Kumar for the Appellant.Mr J.D. Mistry, Sr. Counsel with Mr Atul Jasani for the Respondent.CORAM : S.C. DHARMADHIKARI AND
B.P. COLABAWALLA JJ.Reserved on : 10th July 2014.
Pronounced on : 23rd July 2014.
JUDGMENT [ Per B.P. Colabawalla J. ] :-1. This Appeal undersection 260Aof the Income Tax Act 1961, has
been filed by the Commissioner of Income Tax-2 challenging the order
passed by the Income Tax Appellate Tribunal (hereinafter referred to as the
ITAT) dated 29th June 2011. By the impugned order, the ITAT dismissed
the Appeal filed by the Revenue in relation to Assessment Years 2001-02,
2002-03, 2003-04, 2004-05 and 2005-06.2. Mr Suresh Kumar, the learned counsel appearing on behalf of the
Appellant, submitted that the impugned order passed by the ITAT requires::: Downloaded on - 23/07/2014 23:50:16 :::vrd 2 ITXA330/12interference and gives rise to substantial questions of law that need to be
answered by this Court and read as under :-"(A) Whether on the facts and in law, the Hon'ble Tribunal was correct
in holding that the investment in tax free securities/investments are
represented by assessee's own funds in the shape of share capital and
reserves, ignoring the fact that the assessee is a bank involved in
transactions of money in various forms and treasury operations is only
out of its functions ?(B) Whether the ITAT was correct in law in holding that the broken
period interest is allowable as a deduction, inspite of the Hon'ble Supreme
Court's decision in the case ofCIT v/s Vijay Bank(187 ITR 541) and the
Rajasthan High Court's decision in the case of Bank of Rajasthan (316
ITR 391) ?(C)
Whether the ITAT is right in law in holding that the assessee is
entitled for deduction with respect to the diminution in value of the
investment and amortization of premium on investment held to maturity
on the ground of mandate by RBI guidelines thereby ignoring the decision
of the Supreme Court in the case ofSouthern Technologies vs. CIT(320
ITR 577) ?"3. With reference to question (A), Mr Suresh Kumar submitted that the
ITAT erred in holding that the investments of the Assessee in tax free
securities / investments were from the Assessee's own funds. Since the
Assessee had paid interest on borrowed funds and and the Assessee's own
funds were not separately identified, the investment in Government
securities had been made by the Assessee Bank from common pool of funds
available with it. According to Mr Suresh Kumar, as per the provisions ofsection 14A, no deduction could be allowed in respect of expenditure
incurred by the Assessee against the income claimed as exempt from tax, as
apportionment of expenditure was an inherent part ofsection 14A. He
submitted that in the absence of a direct nexus between Assessee's own::: Downloaded on - 23/07/2014 23:50:16 :::vrd 3 ITXA330/12funds and the investment made by it, the investment ought to be treated
from the common pool having both borrowed as well as own funds of the
Assessee and therefore, proportionate disallowance of interest by the
Assessing Officer was fully justified. He therefore submitted that the CIT
(Appeals) & the ITAT had gone wrong on this count that required
interference by this Court.4. We do not agree. In the case at hand, as recorded by the ITAT,
undisputedly the Assessee's own funds and other non-interest bearing funds
were more than the investment in the tax free securities. The ITAT therefore
held that there was no basis for deeming that the Assessee had used the
borrowed funds for investment in tax free securities. On this factual aspect,
the ITAT did not find any merit in the contention raised by the Revenue and
therefore, accordingly answered the question in favour of the Assessee. On
going through the order of the CIT (Appeals) dated 28 th March 2005 as well
as the impugned order, we do not find that the CIT (Appeals) or the ITAT
erred in holding in favour of the Assessee.In this regard, the submission of
Mr Mistry, the learned Senior Counsel appearing on behalf of the Assessee,
that this issue is squarely covered by a judgment of this Court in the case ofCommissioner of Income Tax v/s Reliance Utilities and Power Ltd.,
reported in (2009) 313 ITR 340 (Bom) is well founded. The facts of that
case were that the Assessee viz. M/s Reliance Utilities and Power Ltd. had::: Downloaded on - 23/07/2014 23:50:16 :::vrd 4 ITXA330/12invested certain amounts in Reliance Gas Ltd. and Reliance Strategic
Investments Ltd. It was the case of the Assessee that they themselves were
in the business of generation of power and they had earned regular business
income therefrom. The investments made by the Assessee in M/s Reliance
Gas Ltd. And M/s Reliance Strategic Investments Ltd. were done out of
their own funds and were in the regular course of business and therefore no
part of the interest could be disallowed. It was also pointed out that the
Assessee had borrowed Rs.43.62 crores by way of issue of debentures and
the said amount was utilised as capital expenditure and inter-corporate
deposit. It was the Assessee's submission that no part of the interest bearing
funds (viz. Issue of debentures) had gone into making investments in the
said two companies. It was pointed out that the income from the operations
of the Assessee was Rs.313.53 crores and with the availability of other
interest free funds with the Assessee the amount available for investments
out of its own funds were to the tune of Rs.398.19 crores. In view thereof, it
was submitted that from the analysis of the balance-sheet, the Assessee had
enough interest free funds at its disposal for making the investments. The
CIT (Appeals) on examining the said material, agreed with the contention of
the Assessee and accordingly deleted the addition made by the Assessing
Officer and directed him to allow the same under the provisions of theIncome Tax Act, 1961. The Revenue being aggrieved by the order preferred
an Appeal before the ITAT who upheld the order of the CIT (Appeals) and::: Downloaded on - 23/07/2014 23:50:16 :::vrd 5 ITXA330/12dismissed the Appeal of the Revenue. From the order of the ITAT, the
Revenue approached this Court by way of an Appeal. After examining the
entire factual matrix of the matter and the law on the subject, this Court held
as under :-"If there be interest-free funds available to an assessee sufficient to meet
its investments and at the same time the assessee had raised a loan it can
be presumed that the investments were from the interest-free funds
available.In our opinion, the Supreme Court inEast India
Pharmaceutical Works Ltd. v. CIT(1997) 224 ITR 627 had the occasion
to consider the decision of the Calcutta High Court in Woolcombers of
India Ltd. (1982) 134 ITR 219 where a similar issue had arisen. Before
the Supreme Court it was argued that it should have been presumed that
in essence and true character the taxes were paid out of the profits of the
relevant year and not out of the overdraft account for the running of the
business and in these circumstances the appellant was entitled to claim
the deductions. The Supreme Court noted that the argument had
considerable force, but considering the fact that the contention had not
been advanced earlier it did not require to be answered.It then noted
that inWoolcombers of India Ltd.'s case (1982) 134 ITR 219 the Calcutta
High Court had come to the conclusion that the profits were sufficient to
meet the advance tax liability and the profits were deposited in the over
draft account of the assessee and in such a case it should be presumed
that the taxes were paid out of the profits of the year and not out of the
overdraft account for the running of the business. It noted that to raise
the presumption, there was sufficient material and the assessee had urged
the contention before the High Court. The principle, therefore, would be
that if there were funds available both interest-free and over draft and/or
loans taken, then a presumption would arise that investments would be
out of the interest-free funds generated or available with the company if
the interest-free funds were sufficient to meet the investment. In this case
this presumption is established considering the finding of fact both by the
Commissioner of Income-tax (Appeals) and the Income-tax Appellate
Tribunal."(emphasis supplied)5. We find that the facts of the present case are squarely covered by the
judgment in the case ofReliance Utilities and Power Ltd.(supra). The
finding of fact given by the ITAT in the present case is that the Assessee's
own funds and other non-interest bearing funds were more than the
investment in the tax-free securities. This factual position is not one that is::: Downloaded on - 23/07/2014 23:50:16 :::vrd 6 ITXA330/12disputed. In the present case, undisputedly the Assessee's capital, profit
reserves, surplus and current account deposits were higher than the
investment in the tax-free securities. In view of this factual position, as per
the judgment of this Court in the case of Reliance Utilities and Power Ltd.(supra), it would have to be presumed that the investment made by the
Assessee would be out of the interest-free funds available with the Assessee.We therefore, are unable to agree with the submission of Mr Suresh Kumar
that the Tribunal had erred in dismissing the Appeal of the Revenue on this
ground. We do not find that question (A) gives rise to any substantial
question of law and is therefore rejected.6. Even as far as question (B) is concerned, we find no infirmity in the
orders passed by the CIT (Appeals) or the ITAT.In deciding this issue, CIT
(Appeals) and the ITAT have merely followed the judgment of this Court in
the case ofAmerican Express International Banking Corporation v/s
Commissioner of Income Tax, reported in (2002) 258 ITR 601.On going
throughthe said judgment, we find that question (B) reproduced above and
projected as substantial by Mr Suresh Kumar is squarely answered by the
judgment of this Court in the case ofAmerican Express International
Banking Corporation(supra). In view thereof, we do not find that even
question (B) gives rise to any substantial question of law that needs to be
answered by this Court.::: Downloaded on - 23/07/2014 23:50:16 :::vrd 7 ITXA330/127. As far as question (C) is concerned, we find that an identical question
of law was framed and answered in favour of the Assessee by this Court in
its judgement dated 4th July, 2014 in Income Tax Appeal No.1079 of 2012,
Commissioner of Income Tax-2 v/s M/s Lord Krishna Bank Ltd. (now
merged with HDFC Bank Ltd.). Mr Suresh Kumar fairly stated that
question (C) reproduced above is covered by the said order. In view thereof,
we are of the view that even question (C) does not raise any substantial
question of law that requires an answer from us.8. For all the aforesaid reasons, we find no merit in this Appeal. It raises
no substantial question of law and is therefore dismissed. No order as to
costs.( B.P. COLABAWALLA J. ) (S.C. DHARMADHIKARI J. )::: Downloaded on - 23/07/2014 23:50:16 ::: |
a6990a5a-41c9-51b5-8f24-441800156138 | court_cases | Rajasthan High CourtHardeep Singh vs State Of Rajasthan on 14 November, 2000Equivalent citations: 2001CRILJ593, 2000(3)WLC610JUDGMENT
Sunil Kumar Garg, J.1. The abovenamed accused-appellant has preferred this appeal against the judgment and order dated 11-9-1996 passed by the learned Special Judge, NDPS cases, Sri Ganganagar in Sessions case No. 9/93 by which he convicted the accused-appellant for the offence under Section 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act') and sentenced to undergo ten years RI and to pay a fine of Rs. 1 lac in default of payment of fine, to further undergo one year RI.2. The facts giving rise to this appeal, in short, are as follows :-P.W. 8 Jeevan Ram, SHO Police Station Sadulsahar District Sri Ganganagar registered the FIR Ex. P/13 stating inter-alia that on 23-1-1993 at about 3.00 PM he along with police officials including P.W. 1 Ramjilal and P.W. 5 Pradusingh proceeded in a Government jeep and reached Sadulsahar at about 4.00 pm. where he received a secret information to the effect that one person near the Water Works was carrying katta containing contraband article and that information was reduced in writing by him in Ex. P/11 and, thereafter, he took two motbirs P.W. 2 Harnek Singh and P.W. 3 Malaram and reached near the Water Works and as per information, he found a person sitting there and on being asked, he told his name as Hardeep Singh (accused appellant) and at that time he was having a katta of fertilizer and on being asked, he told that it contained poppy husk. Thereafter, he was informed through notice Ex. P/12 whether he wanted to be searched before a Magistrate or Gazetted Officer and he gave his consent on it that search be made by P.W. 8 Jeevan Ram himself. Thereafter, he made search of the accused appellant in presence of motbir witnesses and on search, a plastic katta was recovered and on opening, it was found that it contained poppy husk and on weighing, its weight was found to be 6 kg. and out of that, sample of 500 gms. was taken and sealed on the spot and the remaining poppy husk was also sealed on the spot. The fard of search and seizure Ex. P/1 was prepared on the spot. Thereafter, P.W. 8 Jeevan Ram handed over the contraband articles recovered from the accused appellant to P.W. 4 Kana Ram, who deposited the same in the Malkhana and copy of Malkhana Register is Ex. P/9. Thereafter, sample was sent to FSL for chemical analysis by P.W. 4 Kanaram through P.W. 6 Kedarnath, who after taking forwarding letter Ex. P/15 from SP Office, Sri Ganganagar, deposited the same in FSL, Jaipur and the report of FSL is Ex. P/16, where it has been stated that the sample contained in the packet marked 'A' gave positive tests for the presence of chief constituents of opium hence the sample is of dried crushed capsules of poppy.After usual investigation, the police submitted challan against the accused appellant in the Court of Magistrate and from where the case was committed to the Court of Session and thereafter, the case was transferred to the learned Special Judge, NDPS cases, Sri Ganganagar.On 6-10-1993, the learned Special Judge, NDPS cases, Sri Ganganagar framed charge for the offence underSection 8/15of the NDPS Act against the accused appellant. The charge was read over and explained to the accused appellant, who pleaded not guilty and claimed trial.During trial, the prosecution in support of its case examined eight witnesses and got exhibited several documents. Thereafter, statement of the accused appellant underSection 313, Cr.P.C. was recorded. No evidence in defence was led by the accused appellant. However, three documents were got exhibited in defence.After conclusion of trial, the learned Special Judge, NDPS cases, Sri Ganganagar through his judgment and order dated 11-9-1996 convicted accused appellant for the offence underSection 8/15NDPS Act and sentenced in the manner as stated above holding inter alia :-1. That in the present case, provisions ofSection 42of the NDPS Act are not applicable and on the contrary, provisions ofSection 43of the NDPS Act are applicable as the search has been effected in the public place.2. That though both motbir witnesses, namely, P.W. 2 Harnek Singh and P.W. 3 Malaram have been declared hostile, but it does not affect the prosecution case as other official witnesses supported the prosecution case.3. That there is no room to hold that seal of sample in the present case has been tampered with in any manner and from the evidence on record, it has been proved by the prosecution that the seal of the sample remained intact from the date of sealing till it reached in the FSL.4. That the prosecution has proved its case beyond reasonable doubt against the accused appellant for the offence underSection 8/15of the NDPS Act.Aggrieved from the said judgment and order dated 11-9-1996, the present appeal has been filed by the accused appellant.3. In this appeal, the following submissions have been made by the learned counsel for the accused appellant:-1. That when P.W. 8 Jeevan Ram had opted to act underSection 42(1)of the NDPS Act by reducing in writing the information received by him from mukhbir, then it was mandatory for him to send the copy of information to his immediate superior underSection 42(2)of the NDPS Act or in other words, since there is no compliance of the latter part ofSection 42(2)of the NDPS Act, therefore, whole trial stands vitiated and accused appellant should be acquitted on this ground alone.2. That FSL report does not show as to with what seal impression the packet marked A was sealed and what seal impression for comparison was forwarded by P.W. 8 Jeevan Ram, SHO to FSL and thus, there is a lacuna and a private seal has been used and furthermore, separate seal impression memo was not prepared nor the seal was deposited in the Malkhana and thus, prosecution case becomes doubtful. Hence, it was prayed that the appeal be allowed and the accused appellant be acquitted of the charge framed against him.4. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Special Judge, NDPS cases, Sri Ganganagar.5. I have heard the learned counsel for the accused appellant and the learned Public Prosecutor and perused the record of the case.Point No. 16. On point No. 1, it may be stated that one of the learned Brother Judges of this Court (Hon'ble Mr. Justice A.K. Singh) when he heard this appeal, made a reference by order dated 17th December, 1998 the following terms :-Whether the provisions of Sub-sections (1) and (2) ofSection 42of the NDPS Act apply to search of persons in public places as defined in the explanation given inSection 43of the NDPS Act.7. The above reference was answered by the Division Bench of this Court vide order dated 4th July, 2000 in the following manner :-that the provisions of Sub-section (1) and (2) ofSection 42of the NDPS Act does not apply to the search of persons in public places as defined in explanation given inSection 43of the NDPS Act.8. It has been held by the Division Bench of this Court that when the search of the person is made at public place, provisions ofSection 42of the NDPS Act do not apply. When this being the position, if the second part ofSection 42(2)of the NDPS Act has not been complied with by P.W. 8 Jeevan Ram, it will not affect the prosecution case as in the present case, search was effected in the public place.9. Therefore, the above argument now stands decided in view of the decision of the Division Bench of this Court dated 4th July, 2000 in the reference referred to by the learned single Judge.10.In this respect, the learned Counsel for the accused appellant has raised one more argument that this decision of the Division Bench of this Court stands over ruled in view of the decision of the Hon'ble Supreme Court inAbdul Rashid Ibrahim Mansuri v. State of Gujarat, 2000 Cr LR (SC) 373 : (2000 Cri LJ 1384).11. I have considered this aspect and gone through the order dated 4th July, 2000 passed by the Division Bench of this Court as well as the judgment of the Hon'ble Supreme Court in the case ofAbdul Rashid Ibrahim Mansuri(supra).12. So far as the judgment in the case ofAbdul Rashid Ibrahim Mansuri(supra) is concerned,in that case, the Hon'ble Supreme Court held that the provisions ofSection 42of the NDPS Act would be applicable, inasmuch asin that case, accused of that case was carrying charas in his vehicle, meaning thereby, vehicle in which charas was being carried was a private vehicle. Thus, the facts of the present case stands distinguished as in the present case search has been effected in public place.Therefore, to say that the decision of the Division Bench of this Court dated 4th July, 2000 stands overruled in view of the decision of the Hon'ble Supreme Court in the case ofAbdul Rashid Ibrahim Mansuri(supra) is wrong and this argument is not tenable and the same stands rejected.13. Therefore, the findings of the learned Special Judge that provisions ofSection 42of the NDPS Act are not applicable in the present case are liable to be confirmed.Point No. 214. To decide point No. 2, evidence of the present case has to be seen.15. P.W. 8 Jeevan Ram, SHO, Sadulsahar has clearly stated in his statement that the weight of the poppy husk recovered from the accused appellant was 6 kg. and out of the said 6 kg., a sample of 500 gms. was taken and the same was sealed on spot in a separate packet and rest of the poppy husk was also sealed on the spot and the said articles recovered from the accused appellant were handed over by him to P.W. 4 Kana Ram, Malkhana Incharge. P.W. 4 Kana Ram corroborated the statement of P.W. 8 Jeevan Ram by saying that P.W. 8 Jeevan Ram handed over to him white katta containing 5 kg. 500 gms. poppy husk, which was sealed and marked-B and another packet of 500 gms. was also handed over to him by P.W. 8 Jeevan Ram and the same was marked as 'A' and both were in good condition and he entered these articles in Malkhana Register Ex. P/9. He has further stated that on 14-2-1993 one sealed packet, as per the directions of the SP, was given by him to P.W. 6 Kedar Nath with a letter for depositing the same in the FSL, Jaipur and for that there is also entry in the Malkhana Register Ex. P/9 and the same is marked at place 'A to B'. He further states that on 21-2-1993, P.W. 6 Kedar Nath gave him receipt Ex. P/10 after depositing the said sample at FSL, Jaipur and the entry of the deposit of the said sample at F$L has also been made by him in the Malkhana Register Ex. P/9. He has further stated that the concerned articles when they were deposited by P.W. 8 Jeevan Ram, they remained in the same condition and in the same condition, he handed over the sample to P.W. 6 Kedar Nath for depositing in the FSL. The statements of P.W. 8 Jeevan Ram and P.W. 4 Kana Ram further get corroboration from the statement of P.W. 6 Kedar Nath who states that on 14-2-1993, he was F.C. in the Police Station Sadulsahar and he took one sealed packet of sample from P.W. 4 Kana Ram for depositing the same in the FSL and he deposited the same in the FSL and obtained receipt Ex. P/10, which was handed over by him to P.W. 4 Kana Ram. Thus, there is uniformity in the statements of P.W. 8 Jeevan Ram, P.W. 4 Kana Ram and P.W. 6 Kedar Nath and P.W. 6 Kedar Nath has categorically stated that when he took the sample for depositing the same in the FSL Jaipur, he also took a forwarding letter Ex. P/15 from SP office.16. Thus, there is evidence that the contraband articles recovered from the accused appellant were first handed over by P.W. 8 Jeevan Ram to P.W. 4 Kana Ram, who deposited the same in the Malkhana and made entry in the Malkhana Register Ex. P/9 and thus, it cannot be inferred that articles were not kept in proper custody and proper form. The evidence led by the prosecution is satisfactory on the point that articles from the date of sizure till they were deposited in the Malkhana and sent to FSL, Jaipur remained intact.17. So far as the argument that seal on separate paper has not been taken by PW 8 Jeevan Ram and the same has not been sent to FSL is concerned, this Court has taken the view in many cases that it is a mere irregularity and it does not affect the prosecution case and on this ground alone, accused appellant cannot be acquitted. Hence, this argument is also not helpful to the accused appellant.18. No other point was raised before me.19. Thus, for the reasons stated above, the findings of the learned Special Judge, NDPS Cases, Sri Ganganagar convicting accused appellant for the offence underSection 8/15of the NDPS Act are liable to be confirmed and the appeal of the accused appellant is liable to be dismissed.In the result, the appeal filed by the accused appellant Hardeep Singh fails and is dismissed after confirming the judgment and order dated 11-9-1996 passed by the learned Special Judge, NDPS Cases, Sri Ganganagar. |
c0f6de36-80fb-590f-b1fa-6f6494b4127f | court_cases | Custom, Excise & Service Tax TribunalM/S. Amman Granites vs Cce, Salem on 19 April, 2011IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
E/733/2004
(Arising out of Order in Appeal No. 113/04 (CE) dated 24.02.2004 passed by the Commissioner of Central Excise (Appeals), Salem).
For approval and signature
Honble Ms. JYOTI BALASUNDARAM, Vice President
Honble Dr. CHITTARANJAN SATAPATHY, Technical Member
_________________________________________________________
1. Whether Press Reporters may be allowed to see the :
order for Publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether the Honble Member wishes to see the fair :
copy of the Order.
4. Whether order is to be circulated to the :
Departmental Authorities? __________________________________________________________
M/s. Amman Granites : Appellant
Vs.
CCE, Salem : RespondentAppearance
Shri T.P. Kathiravan, Adv., for the appellants
Shri A.B. Niranjan Babu, SDR, for the respondents
CORAM
Honble Ms. JYOTI BALASUNDARAM, Vice President
Honble Dr. CHITTARANJAN SATAPATHY, Technical Member
Date of hearing : 19.04.2011
Date of decision : 19.04.2011
ORDER No.________________
Per: Jyoti Balasundaram,
The assessee is a 100% EOU procuring raw materials, consumables and fuels etc., without payment of duty, according to the provisions of Notification No. 1/95-CE dated 04.01.95. During the period 24.06.02 to 03.07.02, the assessees transferred 16000 liters of HSD oil to M/s. AG Granites Pvt. Ltd. Harur, without payment of duty, which was contrary to the provisions of amendment vide Notification No. 35/02 dated 24.06.02 to Notification No. 1/95-CE as per the amendment no inter-unit transfer of raw materials, consumables and fuels etc., is permissible whether the units fall within the zone or outside the zone. A show cause notice proposing to demand duty on the clearances of quantity of HSD oil and to imposition of penalty was adjudicated by the adjudicating authority by confirming a demand of duty of Rs. 28,483/- together with interest and imposing a penalty of Rs. 500/-. The Commissioner (A) upheld the duty demand and set aside the penalty. Hence, this appeal.2. We have heard both sides. The submission of the assessees that permission granted was withdrawn only vide communication dated 10.03.2003 and therefore, for any period prior to the above date, they are not liable to pay any duty, cannot be accepted in the light of the fact that the Notification was amended w.e.f. 24.06.02. We, therefore, uphold the impugned order which has upheld the duty demand and reject the appeal.(Order dictated and pronounced in the open Court)
(Dr. CHITTARANJAN SATAPATHY) (JYOTI BALASUNDARAM)
TECHNICAL MEMBER VICE PRESIDENT
BB3 |
99cfd5c3-553f-5e34-82ec-840804b4a276 | court_cases | Rajasthan High Court - JodhpurSmt Rupali Devi vs State & Ors on 5 September, 2017Author:Sandeep MehtaBench:Sandeep MehtaHIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 380 / 2016
Smt. Rupali Devi W/o Shri Banshi Lal, by caste Khateek,
Resident of Kareda, Police Station Kareda,
District Bhilwara.
----Petitioner
Versus
1. The State of Rajasthan
2. The Director General of Police, Jaipur.
3. The Superintendent of Police, Bhilwara
4. The S.H.O., Police Station Kareda, District Bhilwara.
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. T.R.S.Sodha
For Respondent(s) : Mr. O.P.Rathi, P.P.
_____________________________________________________
HON'BLE MR. JUSTICE SANDEEP MEHTAOrder
5/09/2017
Heard learned counsel the petitioner and the learned P.P.
Perused the material on record.The instant miscellaneous petition has been filed by the
petitioner seeking direction for conducting fair investigation in
F.I.R. No.184/2015 registered at P.S. Kareda, Dist. Bhilwara.The petitioner filed an F.I.R. No. 184/2015 at the P.S.
Kareda, Dist. Bhilwara against the accused person named in the
F.I.R. for the offences underSections 143,448,323,354and504I.P.C. andSection 3(i)(x)of the SC/ST(P.A.) Act. According to the
(2 of 2)
learned counsel for the petitioner, the police authorities have not
taken any action against the accused and thus appropriate
direction be given for fair investigation of the F.I.R.This Court is of the opinion that in view of the observations
made and directions given by the Hon'ble Apex Court in the case
ofSakiri Vasu Vs. State of U.P., AIR 2008 SC 907, no person
can be encouraged to directly approach this Court for seeking
direction of fair investigation. If any person is aggrieved of lack of
action by the police as regards the FIR which has been filed
by/against him/her, the appropriate course of action for the
aggrieved person is to first approach the Magistrate having
jurisdiction, who can call for the report from the investigating
officer and also instruct the investigating officer to investigate the
matter fairly. If the petitioner is aggrieved by any inaction of the
police, then he should move to the appropriate Court in
accordance with the directions issued by the Apex Court in the
aforesaid judgment. The trial court would be empowered to call for
the report from the I.O. and issue appropriate direction for fair
investigation in consonance with the view expressed by the
Hon'ble Apex Court.With the aforesaid observations, the miscellaneous petition
and the stay petition are disposed of.(SANDEEP MEHTA), J./Sushil/ |
0bbbd8d2-4650-5faf-91a1-108ba75de09f | court_cases | Rajasthan High Court - JodhpurMangi Lal vs State on 16 June, 20111/2
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. Criminal Misc. Bail (SOS) Application No.613/2011
in
S.B. Criminal Appeal No.470/2011
Mangi Lal Vs. State of Rajasthan
Date of order: 16/06/2011.
HON'BLE MR. NARENDRA KUMAR JAIN, V.J.
Mr. B.S. Rathore for
Mr. Rajesh Panwar, for the appellant.
Mr. Mahipal Bishnoi, PP for the State.
--1. Heard learned counsel for the convict-appellant and
learned Public Prosecutor for the State.2. Learned counsel for the appellant submits that the
appellant has been convicted for the offences under Sections 326
and sentenced to under to two years' simple imprisonment. He
further submits that learned court below has suspended the
sentence awarded to the appellant for a period of one month for filing
appeal. During the trial, the appellant was on bail and he has never
misused the liberty of bail during the trial.3. Learned Public Prosecutor opposed the bail application.4. Having considered totality of facts and circumstances of
the case, the application for suspension of sentence deserves
acceptance, accordingly the same is allowed. The sentence passed
by learned Additional Sessions Judge, (Fast Track) No.2, Bikaner by
judgment dated 25.05.2011 in Sessions Case No.86/2008 against
the appellant Mangilal S/o Laxmi Narayan shall remain suspended
till final disposal of the aforesaid appeal provided the he executes
personal bond in the sum of Rs.20,000/- with two sureties of the like2/2amount each to the satisfaction of the learned trial court for his
appearance before this Court on 18.07.2011 and whenever ordered
to do so with the incorporation in the bond that in the event of
change of his permanent address or of residence, the same shall be
intimated to this Court at earliest.(NARENDRA KUMAR JAIN), VJ.DJ/-32 |
80dd0000-9ed2-5460-ac34-b326881c14f8 | court_cases | Patna High Court - OrdersDipu Kumar vs The State Of Bihar on 20 February, 2015Author:Gopal PrasadBench:Gopal PrasadPatna High Court Cr.Misc. No.48447 of 2014 (2) dt.20-02-2015
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.48447 of 2014
Arising Out of PS.Case No. -749 Year- 2014 Thana -ARARIA District- ARRARIA
======================================================
Dipu Kumar, Son of Sri Nagina ray @ Sri Nagina Das, resident of Village-
Aatiyana, P.S. Ghosi, District- Jehanabad, at present residing at back of
Araria Bhojpur Market Bus Stand Road Radhika Tola, Ward No. 17, P.S.
Araria, District- Araria.
.... .... Petitioner.
Versus
The State of Bihar
.... .... Opposite Party.
======================================================
Appearance :
For the Petitioner : Mr. Madhukar Mishra, Advocate.
For the State : Mr. Harendra Prasad, A.P.P.
======================================================
CORAM: HONOURABLE MR. JUSTICE GOPAL PRASAD
ORAL ORDER
2 20-02-2015Heard learned counsel for the petitioner and learned
counsel for the State.The petitioner has been arrested in connection with
Araria P.S. Case No. 749 of 2014 registered underSections 272,273,420,304,120Band34of Indian Penal Code as well asSections 66(17),65(18)and27(D)of Drugs and Cosmetics Act.It is alleged that petitioner is domestic worker in the
house of Upendra Kumar Ambast and in the aforesaid house a
medicine shop was running and from that shop expiry date of
medicine has been sold with the help of the petitioner.Learned counsel for the petitioner submits that license of
the medicine shop is running in the name of Upendra Kumar
Ambast. It is further submitted that petitioner is in jail custody
since 16. 10. 2014.Having regard to the facts and circumstances of the case,
the above named petitioner is directed to be released on bail on
furnishing bail bond of Rs. 10,000/- (Ten thousand) with two
sureties of the like amount each to the satisfaction of the ChiefPatna High Court Cr.Misc. No.48447 of 2014 (2) dt.20-02-2015Judicial Magistrate, Araria, in connection with Araria P.S. Case
No. 749 of 2014, subject to condition that petitioner will not
indulge in such activity in future.m.p. (Gopal Prasad, J)
U T |
b445e304-7476-538e-b5dc-7706961de22f | court_cases | Rajasthan High CourtSanwar Lal Rai vs Appellate Rent Tribunal Anr on 28 February, 2013Author:Mohammad RafiqBench:Mohammad RafiqIN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. CIVIL WRIT PETITION NO.5678/2011
Sanwar Lal Rai vs. Appellate Rent Tribunal, Jaipur & Anr.
Date of order : 28th February, 2013.
HON'BLE MR.JUSTICE MOHAMMAD RAFIQ
Shri V.L. Mathur with
Shri Amit Dhawan ) for the petitioner.
Shri Anil Mehta for the respondents.******
REPORTABLE
This writ petition has been filed by petitioner-Sanwar Lal Rai challenging the judgement of Rent Appellate Tribunal dated 8.3.2011 and seeking restoration of the order of the Rent Tribunal dated 7.10.2010. The Rent Tribunal in the first order allowed the eviction petition filed by the petitioner-landlord underSection 10(1)(c)of the Rent Control Act, 2001 and directed the respondent-tenant to vacate the flat No.4/476 SF, Jawahar Nagar, Jaipur and further directed that the tenant shall be liable to pay a sum of Rs.1,00,800 as arrears and Rs.2,800/- as mesne profit. If the tenant fails to vacate the premises within three months, the petitioner would be entitled to charge a sum of Rs.5,600 per month. The respondent-tenant filed appeal before the Appellate Rent Tribunal, which set aside the judgement of the Rent Tribunal and dismissed the eviction petition filed by the petitioner.The eviction petition was filed by the petitioner on the ground contained inSection 10(1)(c)of the Rent Control Act, 2001 which entitles a senior citizen to recover immediate possession on such ground, provided the petition is filed after expiry of three years from the date of letting out the premises. The explanation toSection 10(1)(c)provides that for the purpose of this Section the expression landlord shall mean the owner of the residential premises. Second ground on which the petition for eviction was filed was that of default by the respondent-tenant in not paying the rent for more than four months as perSection 9(a)of the Act. Third ground was of making material alterations in the premises, which is likely to diminish its value with reference toSection 19(c). Fourth and last ground with reference toSection 9(f)was that the respondent-tenant denied the title of the petitioner as landlord.The respondent tenant contested the petition and submitted that he was never put in possession of the disputed flat as a tenant. He acquired possession of the premises of the petitioner in April, 1985, when an oral agreement took place between the petitioner and the respondent on 9.6.1985 according to which the petitioner agreed to sell the aforesaid flat to the respondent for a consideration of Rs.90,000 and the respondent paid to him a sum of Rs.21,000 as advance in the presence of one Pd. Ramesh Kumar Sharma. The petitioner joined service of the LIC as Development Officer in April, 2001. The respondent vacated other rented premises and started residing in the aforesaid flat with his family and continues to reside. The petitioner demanded from the respondent a sum of Rs.50,000. The respondent sent the demand draft bearing no.556983 dated 27.11.1999 to the petitioner at Jodhpur. The respondent obtained a receipt in lieu thereof on photo copy thereof. Even then the petitioner did not get the sale deed registered. The respondent denied the facts that the house was let out to him on the rental of Rs.1,300 per month.Shri V.L. Mathur, learned counsel for the petitioner submits that in 1995, the house was let out to the respondents on monthly rent of Rs.1,100, which rent was increased to Rs.2,800 in the year 1999. Initially, the respondent paid the rent, but thereafter he stopped making payment of rent despite repeated demands by the petitioner. When the petitioner pressurised for vacating the premises, the respondent sent the earlier outstanding amount of rent by demand draft of Rs.50,000 in December, 2002, which included the rent upto March, 2003 and did not pay any rent thereafter. Petitioner served upon the respondent notices on 25.4.2006 and 7.4.2006 which were returned with the remarks of non-service on the respondent. The petitioner is a senior citizen of 77 years and therefore is entitled to recover immediate possession in view ofSection 10(1)(c)of the Act of 2001.Shri V.L. Mathur, learned counsel for the petitioner has argued that the judgement passed by the Rent Appellate Tribunal is per se contrary to law and is liable to be quashed and set aside. Petitioner retired from service of RSEB on 1.8.1983. He is therefore a senior citizen within the meaning ofSection 2(h)of the Act of 2001, according to which a person who has attained the age of 65 years or more is a senior citizen.Section 10(1)(c)of the Act of 2001 has conferred a right upon such senior citizen to get immediate recovery of his let out premises subject to only one rider that a minimum period of three years should have elapsed from the date of letting out the premises. The landlord within the meaning of explanation toSection 10has been defined to be owner of residential premises. In the present case, petitioner happens to be owner and therefore he is entitled to immediate recovery of the possession. Stand of the respondent that he in not a tenant of the petitioner, but he has purchased the property from the petitioner as per oral agreement dated 9.6.1985 is wholly false as no such oral agreement took place. The alleged payment of Rs.21,000 at the time of oral agreement has also not been received by petitioner as advance and no receipt thereof was given, but that was against the outstanding rent upto March, 2003. The initially agreed rent was Rs.1,100 per month was later enhanced to Rs.2,800 per month. The respondent have apart from ground of default is also liable to be evicted on the ground of denial of title of the petitioner-landlord.Shri V.L. Mathur, learned counsel for the petitioner has relied on the judgement of Supreme Court inKamakshi Builders vs. Ambedkar Educational Society & Ors.-(2007) 12 SCC 27 and argued thatin that caseit was held that the burden to prove the title is on the tenant. In the present case, as regards the sale through earlier oral agreement to sale is concerned, the same did not confer any title. In para 11 of the reply, the respondent admitted that he has constructed a room with teen shed for his personal necessity and thus he has made material alteration in the premises, which eventually becomes a ground for eviction.Shri V.L. Mathur, learned counsel for the petitioner has relied on the judgement of Supreme Court inState of Andhra Pradesh & Ors. Vs. D. Raghukul Pershad (Dead)by L.Rs.-(2012) 8 SCC 584 contending that a tenant is estopped from questioning landlord's title so long as tenant does not surrender possession to landlord.Shri V.L. Mathur has also relied on the judgement of Supreme Court in A.Shanmugam vs. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam-2012 (3) CDR 521 (SC).Per contra, Shri Anil Mehta, learned counsel for the respondent opposed the writ petition and argued that the petitioner not only accepted the sum of Rs.21,000 in the presence of Pd. Ramesh Kumar Sharma at the time of oral agreement entered into between the parties but also handed over possession of the flat to the respondent. It was thereafter that the respondent paid to the petitioner a demand draft of Rs.50,000 bearing no.556983 dated 27.11.1999. Petitioner received the same and also executed a receipt on the photo copy of the demand draft that the aforesaid amount was received towards sale consideration. The signature of the petitioner on the receipt is exactly identical to his other admitted signatures in the documents like copy of the possession letter of the flat alloted by Housing Board dated 27.1.1981 and copy of letter dated 1.8.1983 whereby at the time of his retirement, he handed over the charge of the office, which is marked as Annexure-2 to the writ petition. The respondent was in possession of the disputed flat which is evident from the documents like copy of Janta Personal Accident Insurance Policy of National Insurance Co. Ltd. dated 24.3.1986, policy of LIC dated 20.6.1988, Agency commission bill of LIC of India, Jaipur Division of March, 1988 and January, 1989 and copy of ration card (Annexure-D to the written submission), having address thereof. Learned counsel submits that Ramesh Kumar Sharma, who is resident of nearby plot in whose presence, the aforesaid amount/draft was given to the petitioner has appeared as a witness to prove so. In cross examination by the petitioner, he has stated that he knows the petitioner from the year 1982 and further stated that in 1985, verbal agreement was entered into between the petitioner and respondent to sell the disputed house to the respondent and that an amount of Rs.21,000 was paid to the petitioner by the respondent at that time in advance. The receipt of the demand draft was also executed by the petitioner in his presence and was signed by him. Reference has been made to the copy of the statement made by Ramesh Kumar Sharma. It is argued that the Rent Tribunal itself has in para 9 of the judgement recorded a finding that petitioner failed to prove any relationship of landlord and tenant relying on the judgement of Supreme Court in 2007 Volume 12 SCC page 27. Learned counsel argued that the Supreme Court in that case has held that if the tenant in possession asserts his title, burden of proof to prove contrary is on respondent tenant. However, this judgement is not applicable as in this case, the landlord-tenant relationship is not proved.The Appellate Rent Tribunal has rightly allowed the appeal considering all the aforesaid facts and the settled proposition of law. It was argued that from January, 1995 to December, 1998, the rent comes to Rs.52,800 and from January, 1999 to December, 2002, the rent would come to Rs.1,34,400. All this computation is based on pleas set up by the petitioner and, therefore, it does not inspire any confidence that an amount of Rs.50,000 has been paid by the respondent towards arrears of rent. It was argued that eviction suit could not be allowed solely on the ground of old age of the petitioner, particularly when the very relationship of parties as tenant and landlord is disputed.Shri Anil Mehta, learned counsel for the respondent in support of his arguments relied on judgements of Supreme Court inJ.P. Anand vs. D.G. Baffna-(2002) 1 SCC 482, R.Kanthimathi & Anr. vs. Beatrice Xavier-(2000) 9 SCC 339, Kamakshi Builders vs. Ambedkar Educational Society & Ors.-(2007) 12 SCC 27, Sadhu Ram & Ors. vs. Financial Commissioner, Haryana & Ors.-(2005) 10 SCC 226, Jahuri Sah & Ors. vs. Dwarika Prasad Jhunjhunwala-AIR1967SC 109, David Joseph Guido vs. A.C. Fernades-(2000) 9 SCC 179, Anita Enterprises & Anr. vs. Belfer Cooperative Housing Society Ltd. & Ors.-(2008) 1 SCC 285 and Gulab Chand (Dead) & by L.Rs. vs. Babulal (Dead) by L.Rs. & Ors.I have given my anxious consideration to the rival submissions and perused the material on record.InKamakshi Builders, supra, the judgement relied by counsel for the petitioner, although it is true that the Supreme Court held that burden to prove his title was on the respondent-tenant, but because tenantin that casewas asserting his title and disputing ownership of the landlord, was admittedly put in possession at the initial stage when the disputed property was let out to him, a fact not in dispute. Unlike in the present case, the tenantin that casewas claiming title by way of oral gift and alternatively on adverse possession. In those facts, it was observed by the Supreme Court that burden to prove his title was of the respondent-tenant.Similarly, inD. Raghukul Pershad, supra, the tenant was put in possession of the disputed premises in the capacity of tenant and, therefore, it was held that he was estopped from questioning landlord's title so long as he does not surrender the possession to the landlord.In A. Shanmugam, supra, it was held that a watchman, care taker or a servant in the property employed to look after the property can never acquire interest in the property irrespective of his long possession. It was held that he was under an obligation to handover the possession forthwith on demand.The facts of the aforesaid cases, which have been relied on by learned counsel for the petitioner are distinguishable from those of the present case because what is asserted herein by the respondent-tenant is that from day one, he came to acquire possession of the disputed flat on the strength of agreement to sale and not as a tenant, whereas, the petitioner-landlord is asserting to the contrary. The respondent has produced evidence of Ramesh Kumar Sharma, who has asserted that a sum of Rs.21,000 was paid in his presence for purchase of the aforesaid flat by the respondent to the petitioner, who in lieu thereof handed over vacant possession of the flat to respondent and it was thereafter that a demand draft of Rs.50,000 bearing no.556983 dated 27.11.1999 was handed over as part of sale consideration, in lieu whereof a receipt to that effect was executed on photo copy of the demand draft by the petitioner. In those facts possibly, the Appellate Rent Tribunal cannot be held to have erred in law in accepting the appeal and setting aside the order passed by the Rent Tribunal.The Supreme Court inR. Kanthimathi, supra a case somewhat similar on facts where the agreement of sale was executed by landlady with tenant, who accepted substantial portion of sale consideration i.e. Rs.20,000, out of Rs.25,000 agreed as sale consideration. Later landlady alleging breach of agreement by the appellant repudiated the agreement by returning the amount of Rs.20,000 by cheque which was not encashed by the appellant-tenant. Landlady then filed suit for eviction on the ground of willful default. It was held that appellant was not a tenant and non-payment cannot be construed to be willful default on his part.InJ.P. Anand, supra it was held by the Supreme Court that pre-requisite condition for maintainability of petition underSection 14of the Delhi Rent Control Act was existence of relationship of landlord and tenant between the parties to eviction petition. While the landlord asserted existence of relationship of landlord and tenant between the parties, but the appellant-tenant denied the same on the basis that he had purchased the premises under the oral agreement for sale and paid certain amount as part consideration. The appellant also filed a suit for specific performance, which was pending before the Court.In Sadhu Ram, supra, it was held by the Supreme Court that possession whether based on tenancy or agreement of sale is essentially a question of fact. In that case, it was held that the respondents had been tenants in the land in question much prior to sale agreement dated 27.7.1976. The application for eviction was filed ten years after the said date. The Supreme Court held that since there was no evidence that any rent was collected for those ten years, finding of the authorities below holding that possession was based on sale and not on tenancy, cannot be faulted.In the present case also, except for the two payments of Rs.21,000 and Rs.50,000, nothing has been shown whether any payment of rent was made by the respondent to the petitioner.InGulab Chand, supra the respondent-landlord filed suit for eviction of the appellant-tenant on the ground of sub-letting. On evidence, however, it was shown that property was mortgaged by the appellant to the respondent. On the date of institution of suit, right of redemption of mortgage was not closed. It was held that relationship of landlord and tenant was not existing between the parties and the suit for eviction was not maintainable.In view of settled proposition of law as noticed above and looking to the nature of evidence that has been adduced in the present case, petition for eviction filed by the petitioner on the ground of his being senior citizen underSection 10(1)(c)of the Rent Control Act, 2001 or otherwise on the ground of default, material alteration and denial of title could not be entertained because the respondent cannot be evicted from the disputed flat in such a summary manner. However, the remedy for either of the parties would be to approach civil court; the petitioner for recovery of possession of his flat or the respondent for suit for specific performance and perfection of his title, but the respondent on the kind of evidence that he has been able to produce before the Rent Tribunal, is certainly entitled to protect his possession not being liable for eviction in summary proceedings under theRent Control Act.In view of above, I do not find any error in the judgement passed by the learned Rent Appellate Tribunal dated 8.3.2011 in reversing the judgement of the Rent Tribunal. There being no merit in the present writ petition, the same is dismissed.RS/ (MOHAMMAD RAFIQ), J.All corrections made in the judgement/order have been incorporated in the judgement/order being emailed. (Ravi Sharma,P.A.) |
2572cfa2-9dcb-5e67-beea-e2721e64cf6b | court_cases | Punjab-Haryana High CourtRajesh vs State Of Haryana on 1 May, 2009Author:Jora SinghBench:Jasbir SinghCrl. Appeal No. 207-DB of 2008. 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl. Appeal No. 207-DB of 2008.
DECIDED ON : 01.05.2009
Rajesh
Appellant.
VERSUS
State of Haryana.
Respondent.
CORAM :HON'BLE MR. JUSTICE JASBIR SINGH.
HON'BLE MR. JUSTICE JORA SINGH
Present: Mr. Sukhwinder Singh Chatrath, Advocate,
for the appellant.
Mr. S.S.Randhawa, Additional Advocate
General, Haryana.
JORA SINGH,J.Through the instant criminal appeal, Rajesh
son of Parkash Chander, has impugned the judgment
dated 14.1.2008 and order dated 16.1.2008, rendered by
the Ld. Sessions Judge, Fatehabad in Sessions case No.
69 of 2003, Sessions Trial No. 104 of 19.11.2003 bearing
First Information Report No. 265 dated 03.12.2002
registered at Police Station City, Tohana, underCrl. Appeal No. 207-DB of 2008. 2Sections 302/201of the Indian Penal Code. The
appellant-accused was convicted underSection 302of
the Indian Penal Code and was sentenced to life
imprisonment and to pay a fine of Rs. 10,000/-. In
default of payment of fine, he was directed to further
undergo simple imprisonment for a period of three
months. The appellant-accused was further sentenced to
undergo rigorous imprisonment for a period of one year
and to pay a fine of Rs.3000/-. In default of payment of
fine, he was directed to undergo simple imprisonment
for a period of 15 days. Both the substantive sentences
were, however, ordered to run concurrently.Prosecution story, in brief, is that on
19.11.2002, written complaint was presented by Satbir
Sharma before the Station House Officer, Police Station
Tohana at 9.10 P.M. on the allegation that he is resident
of village Santhali. His younger brother Ved Parkash
was the employee of Home Guard and was on duty since
21.9.2002 in the Godowns of ARDC, situated at Simbal
Road, Tohana. Ved Parkash had taken a room on rent
from Hardayal Singh, a retired Patwari in Indira Colony
and in that room, he had kept his luggage.Krishan son of Kartar Singh was also anCrl. Appeal No. 207-DB of 2008. 3employee of the Home Guard Department alongwith Ved
Parkash. Krishan was having cordial relation with Ved
Parkash and used to visit his room frequently. On 14.
11.2002, Kirpal came to his house in village Santhali and
told that Ved Parkash and his wife were telling to visit
their house on account of Diwali festival and was to join
his duty on 5.11.2002 but Ved Parkash failed to join his
duty till today. Satbir replied that Ved Parkash failed to
visit his house till today. As per information supplied by
Krishan, complainant and his family members made an
effort to locate Ved Parkash, but he was not available.
On inquiry, they came to know that Ved Parkash had
friendship with Krishan, Rejesh and Pammi. One iron
cot, attaché case, photograph and some other household
articles were found missing from this room Ved
Parkash is missing from the room on rent situated at
Tohana one day earlier to Diwali. In view of the written
complaint of Satbir dated 19.11.2002 a DDR was
recorded. Copy of the same is Ex.P-30.On 3.12.2002, Satbir had gone to Police
Station, Tohana then lodged report with the police to
the effect that his brother Ved Parkash was serving in
the Home Guard department. He had taken one room onCrl. Appeal No. 207-DB of 2008. 4rent from Hardayal Singh. On 4.11.2002, Krishan
reported that Ved Parkash is absent from duty.
Number of articles were missing from his room and an
effort was made to locate him (Ved Parkash) but he is
not traceable. Ved Parkash used to visit the house of
Rajesh, Krishan and Pammi frequently. DDR dated
19.11.2002 was got recorded. Today i.e. 3.12.2002, he
came to Tohana in search of Ved Parkash, Zile Singh
resident of Tohana met him and reported that on
2.11.2002, Ved Parkash was seen while quarrelling with
Rajesh while present near the bridge of Bhakhra canal
towards canal colony. While quarrelling, they had gone
towards canal colony Rajesh was heard while saying that
he (Ved Parkash) had an evil eye on his sister. Now he is
very much certain that Ved Parkash was kidnapped by
Rajesh with an intention to eliminate him. Ved Parkash
used to wear white kurta and Pyjama and keep same
papers and photographs of the entire family. In view of
the written complaint of Satbir First Information Report
underSection 364of the Indian Penal Code was
recorded.Police Party headed by Inspector Subhash
Chander along with complainant Satbir went to theCrl. Appeal No. 207-DB of 2008. 5Godowns of ARDC, Tohana. Statement of the witnesses
were recorded. Rough site plan with correct marginal
note was prepared.On 6.12.2002, police party headed by Inspector
Subhash Chander was present near Kenchi Chowk,
Tohana, where Sukhi Ram produced accused before the
police. Rajesh was interrogated who suffered disclosure
statement Ex P-20 and in pursuance of the same, he got
recovered one attachi case, one woolen chaddar, one
woolen blanket chakdar, one cotton Dari, one tiffen of
steel, one transistor, one small dolli of steel, one glass of
steel etc and a purse. Recovered articles were sealed
with the seal "SC". Sealed parcels were taken into police
possession vide memo attested by the witnesses. After
return to the Police Station, the case property was
deposited with the MHC.On 11.2.2002, in pursuance of the disclosure
statement Ex.P-16 sufferred by Rajesh, he (Rajesh) got
recovered lock and key from the specified place. Lock
and key were sealed with the seal "SC" and were taken
into police possession vide memo duly attested by
witnesses.On 8.11.2002, police party headed by AssistantCrl. Appeal No. 207-DB of 2008. 6Sub Inspector Suraj Mal, Police Station Rania in
connection with patrol duty and excise checking was
present in the area of village Bahiya, where Harnam
Singh Sarpanch met the police party and reported that
while present near the bridge of canal then sighted two
dead bodies. Entry was made in the Roznamcha Ex.P-3.
Then police party headed by Assistant Sub Inspector
Suraj Mal along with Harnam Slingh and Krishan
Chowkidar had gone to the spot where dead bodies were
lying. Inquest reports were prepared. Dead bodies were
sent to Civil Hospital for post mortem examination. On
9.11.2002, doctor had handed over kurta and Pyjama
and the same were taken into police possession. After
post mortem examination, dead bodies of un-known
persons were got cremated through Municipal
Committee, Sirsa.On 12.12.2002, police party headed by
Assistant Sub Inspector Nihal Singh, Tohana along with
Satbir had gone to Police Station Rania, MHC had
produced before them the clothes worn by the deceased.
Satbir had identified the clothes of his deceased brother
Ved Parkash. Clothes were sealed with the seal bearing
impression "NS".Crl. Appeal No. 207-DB of 2008. 7After the completion of investigation, the
accused was challaned.Vide order dated 10.2.2003 by Sub Divisional
Judicial Magistrate, Tohana, case was committed to the
Court of Session, Fatehabad.Accused was charged underSections 302/201IPC to which he pleaded not guilty and claimed trial.In order to substantiate its case, the
prosecution examined as many as 12 witnesses.PW-1 Assistant Sub Inspector Suraj Mal stated
that on 8.11.2002, he along with other police officials
was present in the area of village Rania. Harnam Singh
Sarpanch reported that he has noticed two dead bodies
lying near the bridge of canal. Chowkidar Krishan was
also joined in the party. Police party had gone to the
spot where dead bodies were lying. Inquest reports were
prepared. Dead bodies were sent to the hospital for post
mortem examination. Through Municipal Committee,
Sirsa, the bodies of unknown persons were got
cremated.PW-2 Assistant Sub Inspector Guljari Lal
stated that on 12.12.2002, he was serving as MHC
Rania. Assistant Sub Inspector Nihal Singh along withCrl. Appeal No. 207-DB of 2008. 8Satbir came to Police Station and produced shirt and
Pyjama before Assistant Sub Inspector Guljari Lal and
the same were sealed by Assistant Sub Inspector Nihal
Singh. Post-mortem report, inquest report and the
clothes were taken into police possession vide memo
attested by the witnesses.PW-3 Pala Ram Patwari had prepared scaled site
plan Ex.P-13.PW-4 Kewal Singh stated that on 2.11.2002,
Ved Parkash was on duty from 4 P.M. to 12 night at the
ARDC godown then from 12 mid night to 8 A.M. On
2.12.2002, Ved Parkash was seen with Rajesh. Ved
Parkash had gone for taking meals with Rajesh after
that he did not turn up.PW-5 Hardayal Singh stated that on 2.11.2002
at about 8/8.30 P.M. he had seen Ved Parkash with
Rajesh. On 14.11.2002, shetter of the room on rent
with Ved Parkash was found half opened. No article was
lying in the room, then he had gone to enquire about Ved
Parkash on 15.11.2002 Satbir came to know about the
whereabouts of Ved Parkash.PW-6 Zile Singh stated that on 2.11.2002 at
9/9.30 P.M. while present near the bridge of canal thenCrl. Appeal No. 207-DB of 2008. 9sighted Ved Parkash and Rajesh while abusing each
other. Rajesh was saying to Ved Parkash that he (Ved
Parkash) had an evil eye on his sister.PW-7 Dr. Ashok Gupta stated that on
9.11.2002 at 1 P.M., he had conducted post mortemexamination on the unknown dead bodies and observed
as under:-"The length of the body was 5' x 6". There
was no ligature mark on the neck. The dead body was of
a adult male in advance stage of putrefaction with eye
balls protruding out of sockets tongue coming out of oval
cavity abdomen was burst open. Body was soiled with
mud and weeds at places body was covered by adulty
white kurta and loose loin cloth extrimities like finger
tips toes tip of the nose were eaten up and bones
protruding. Body was in semi flexed position with no
evident injury. Rigor mortis was in passing off stage.
Scalp, skull and vertebrate healthy. Membrances brain
spinal cord congested and not opended.Continued: Scalp hair easily come out on
pulling and skin get peeled off with little effort. On
dissection, lungs were edematous with rib marking on
surface and lung taken out easily sinks in water. OnCrl. Appeal No. 207-DB of 2008. 10cut section lung exudes sero sensuous froathy material.
Larynx and trachea contained mud, weeds, stomach
contained about 150 ml, semi digested food material with
no smell of alcohol, small intestines healthy contained
chyme. All other organs were healthy. However, the
stomach contained muddy water with small weeds.
Mouth and esophagus contained small amount of mud
and weeds.As per opinion of the doctor, the cause of death
in this case was asphyxia as a consequence of drowning.
Probable time that elapsed between injury and death
within few minutes and between death and post mortem
within 3 to 7 days.PW-8 Assistant Sub Inspector Nihal Singh
stated that on 12.12.2002, he along with Satbir had
gone to Police Station Rania. MHC had produced before
him Pyjama, shirt and underwear of the deceased Ved
Parkash and the same were made into sealed parcel
bearing impression "NS".PW-9 Satbir is the complainant. He has
supported the prosecution story.PW-10 Sukhi Ram stated that on 6.12.2002,
Rajesh came to his house and made extra judicialCrl. Appeal No. 207-DB of 2008. 11confession that Ved Parkash was murdered on
2.11.2002. Dead body was thrown in the Bhakhra canal.
Room of Ved Parkash was opened. Articles lying in the
room were found stolen. Accused was produced before
the police and as per disclosure statement suffered by
the accused, different articles were got recovered from
the specified place.PW-11 Inspector Subhash Chander had partly
investigated the case in hand.PW-12 MHC Bahadur Singh brought the
record and proved copy of DDR Ex.P-30.After the close of prosecution evidence, the
accused was examined underSection 313Cr.P.C. to
explain the allegations levelled against him. Accused
denied all the allegations and claimed to be innocent.Defence version of the accused is that he was
detained by the police before the present occurrence
merely on suspicion and later on false case was
registered against them.Opportunity was given to lead defence but no
defence was led.We have heard Mr. S.S.Chatrath, learned
counsel for the appellant-accused, Mr. S.S.Randhawa,Crl. Appeal No. 207-DB of 2008. 12Additional Advocate General, Haryana and have gone
through the file very carefully and thoroughly with their
assistance.Learned counsel for the appellant-accused
argued that it was a case of blind murder. There was no
eye witness. Case is based on circumstantial evidence.
There was no motive to commit the crime. Ved Parkash
was employee of the Home Guard Department. He was
on duty on 2.11.2002 as per Kewal Singh. After that, he
was seen in the company of the appellant-accused.
Appellant-accused made extra judicial confession but
story qua last seen extra judicial confession is doubtful.
Prosecution failed to establish beyond doubt that dead
body alleged to be recovered was of Ved Parkash.Mr. S.S.Randhawa, Additional Advocate
General, Haryana, argued that Ved Parkash was seen
last time in the company of the appellant-accused. Dead
body was recovered on 8th November,2000. From the
clothes worn by the deceased, dead body was identified
to be that of the deceased Ved Parkash. Appellant-
accused made extra judicial confession and as per
disclosure statement he got recovered lock and key of
the room of the deceased. Deceased had an evil eye onCrl. Appeal No. 207-DB of 2008. 13the sister of the appellant-accused, due to this grudge
the deceased was murdered by the appellant-accused.
After murder by the appellant-accused, dead body was
thrown into a canal.First submission of the learned defence counsel
for the appellant-accused was that it was a blind murder.
There is no eye witness and no motive to commit the
crime. Motive assumes importance when case is based
on circumstantial evidence. Submission of learned
counsel for the appellant-accused carries weight.
Appellant-accused is the resident of Indira Colony,
Tohana, whereas the deceased was the resident of village
Santhali. According to the prosecution story, the
deceased had an evil eye on the sister of the appellant-
accused but in support of this allegation, no evidence on
the file. Appellant-accused was not employee with the
deceased. Appellant-accused was not related to the
deceased. Suppose, the appellant-accused used to visit
the quarter of the deceased or the deceased used to visit
of the house of the appellant-accused and deceased had
an evil eye on the sister of the appellant-accused, then
story seems to be not reasonable one. Before the present
occurrence, no complaint from the side of the appellant-Crl. Appeal No. 207-DB of 2008. 14accused against the deceased. No complaint from the
side of the complainant party that appellant-accused is
levelling false allegation against the accused. Motive is
double edged weapon and is always in the heart of the
accused. Accused is to see how, why and where the
crime is to be committed. Motive can be for implication
of the accused, at the same time to commit the crime.
But the motive assumes importance when case is based
on circumstantial evidence. If we presume that there
was a motive to commit the crime, then on this short
ground , neither the appellant-accused can be convicted,
nor the prosecution story can be discarded.Next submission of the learned defence
counsel for the appellant-accused was that evidence qua
last seen is not genuine. Witnesses were introduced
simply to connect the accused with the crime. Submssion
of the defence counsel carries little weight. Deceased
was employee of the Home Guard Department and as per
Kewal Singh ( PW-4) he was on duty from 12 mid night
to 8 A.M. on 2.1.2002 and had seen Ved Parkash with
the appellant-accused at 8 P.M. on 2.11.2002. When duty
of Kewal Singh was to start at 12 during night time
then question is how Kewal Singh had seen VedCrl. Appeal No. 207-DB of 2008. 15Parkash in the company of the appellant-accused at 8
P.M. Deceased was the employee of the Home Guard
Department. While on duty employee of the Home Guard
Department wear uniform but Kewal Singh stated that
while on duty, Ved Parkash was not in uniform. Before
the present occurrence, Ved Parkash while on duty,
used to wear uniform. Very strange that while on duty
on 2.11.2002, Ved Parkash was not in uniform. Earlier
to the occurrence, Ved Parkash used to wear uniform
while on duty then question is why on the date of
occurrence, he was not in uniform. Purposely, Kewal
Singh stated that Ved Parkash while on duty was not
wearing uniform because when dead body was recovered
then shirt and dhoti was found on the person of the dead
body. Hardayal Singh (PW5) stated that on 2.11.2002
he had seen Ved Parkash in the company of appellant-
accused at about 8/8.30 P.M. while present in his room.
One room of Hardayal Singh was on rent with Ved
Parkash and if Hardayal Singh had seen Ved Parkash
with the appellant-accused at about 8/8.30 P.M. in his
room then question is how Ved Parkash was on duty
from 4 P.M. on 2.11.2002. If at 8/8.30 P.M. Ved Parkash
with the appellant-accused was in his room, thenCrl. Appeal No. 207-DB of 2008. 16statement of Kewal Singh (PW4) is not correct one that
Ved Parkash was seen in the company of the appellant-
accused at 8 P.M. while on duty. On the day of
occurrence, Ved Parkash was on duty at the godown of
ARDC, Tohana. Either Ved Parkash was not on duty
from 4 P.M. to onwards or Ved Parkash was not in his
room with the appellant-accused at 8/8.30 P.M. as stated
by Hardayal Singh landlord.Zile Singh (PW6) is the next witness qua last
seen and stated that on 2.11.2002 at 9/9.30 P.M., he
had seen the appellant-accused while quarrelling with
Ved Parkash but statement of Zile Singh is contrary to
the prosecution story because he had seen the deceased
with the appellant-accused while quarrelling at 9/9.30
P.M. on 2.11.2002, then why he did not report the
matter to the police Zile Singh had gone 10/12 days later
to the Police Station with Satbir, Sukhi Ram, Rajinder,
Krishan, Kewal etc. and their statements were recorded.
If appellant-accused was seen while quarrelling with
the deceased on 2.11.2002 and Zile Singh had gone to
Police Station after 10/12 days and Satbir was also
present with him, then statement of Satbir is not
correct one that on 3.12.2002, Zile Singh had reportedCrl. Appeal No. 207-DB of 2008. 17that on 2.11.2002 he (Zile Singh) had seen Rajesh while
quarrelling with Ved Parkash. In the middle of
November,2002 Satbir and Zile Singh had gone to the
Police Station, then Zile Singh could easily report to the
police that on 2.11.2002, he had seen the appellant-
accused while quarrelling with Ved Parkash. Case of
Satbir complainant is that on 3.12.2002, Zile Singh met
him, then he reported that on 2.11.2002, he (Zile Singh)
had seen Ved Parkash while quarrelling with Rajesh.
After information was received from Zile Singh on
3.12.2002 then Satbir got recorded First Information
Report Ex.P-25. Statement of Zile Singh qua last seen is
not correct one. Zile Singh is the resident of Tohana
before the present occurrence, he was not known to the
complainant. Zile Singh had not seen the complainant or
the deceased before 3.12.2002, Satbir to admitted in
cross examination that for the first time, he had seen
Zile Singh on 3.12.2002 earlier that he was not known to
him but on that day he had met Zile Singh at the shop of
one property dealer. When before 3.12.2002 Zile Singh
was not known to the complainant party then question is
how Zile Singh had gone to the Police Station with Satbir
after 10/12 days when Zile Singh had seen theCrl. Appeal No. 207-DB of 2008. 18appellant-accused while quarrelling with the deceased on
2.1.2002. When complainant was not known to Zile
Singh, then how Zile Singh can report to Satbir that he
had seen Ved Parkash while quarrelling with Rajesh
particularly, when Rajesh was also not known to Zile
Singh.Next submission of the learned defence
counsel for the appellant-accused was that appellant-
accused had made extra judicial confession before Sukhi
Ram but statement of Sukhi Ram qua extra judicial
confession is not correct one because Sukhi Ram was not
holding any position. He had no say in the police
department. Sukhi Ram was not expected to protect the
appellant-accused. Extra judicial confession is normally
made before a person who is in a position to protect the
accused from police torture. Submission of the learned
defence counsel is correct one. Sukhi Ram (PW10) is the
resident of village Samain whereas appellant-accused is
the resident of Tohana. Tohana is at a distance of 10
kilometer from Samain. Sukhi Ram was not on visiting
terms with the appellant-accused. Deceased was also not
known to Sukhi Ram. As per extra judicial confession,
firstly, the appellant-accused and the deceased had takenCrl. Appeal No. 207-DB of 2008. 19liquor, then appellant-accused gave 2-3 brick blows on
the head of Ved Parkash. After the death of Ved
Parkash, dead body was thrown into the canal. Sukhi
Ram admitted that Police Station falls on the way while
going to Kenchi Chowk where appellant-accused was
produced before the police station.As discussed earlier, dead body was recovered
on 18th November,2000 from Canal minor in the area of
Rania. Post mortem examination was conducted. Dead
body was cremated by Municipal Committee, Sirsa as
unidentified Doctor Ashok Gupta (PW-7) admitted that
there was no injury on the person of dead body. Dead
body was not identifiable and death was due to
asphyxia, as a consequence of drowning. No legature
mark was noticed. Body was soiled with mud and weeds.
No smell of alcohol was noticed. Larynx and trachea
found contained mud, seeds. That means story of extra
judicial confession is not correct one. After murder, with
a brick why no injury was noted on the head of the
deceased. After death, how mud and weeds can be found
in the larynx and trachea. Sukhi Ram was not known to
the appellant-accused. Sukhi Ram was not holding any
position. He had no say in the police department. VillageCrl. Appeal No. 207-DB of 2008. 20of Sukhi Ram was at a distance of 10 kilometer from the
village of the appellant-accused. Sukhi Ram was not on
visiting terms with the appellant-accused. If Sukhi Ram
had gone to produce the appellant-accused before the
police, then why the appellant-accused was not produced
before the police station falling on the way. After
crossing the police station, there was no idea that
appellant-accused is to be produced before the police
present near the Kenchi Chowk. Sukhi Ram (PW-10) was
with Zile Singh, when they had gone to the Police Station
in the middle November,2002 when Sukhi Ram was not
known either to the complainant party or to the accused
then question is why Sukhi Ram had accompanied Zile
Singh to the Police Station in the middle of
November,2002 and why the appellant-accused preferred
to make extra judicial confession before this witness.
Sukhi Ram was introduced simply to strengthen the
prosecution story.Defence counsel for the appellant-accused
argued that occurrence is dated 2.11.2002. First
Information Report was got registered on 3.12.2002. If
Ved Parkash was found missing with effect from
2.11.2002, then why no missing report. Secondly, deadCrl. Appeal No. 207-DB of 2008. 21body was recovered on 8th November, 2002 then the
prosecution failed to establish that the dead body if
recovered was of Ved Parkash. Submission of the
learned defence counsel is correct one. According to the
evidence, Ved Parkash while on duty after 2.11.2002
was found missing. On 14.11.2002, Krishan had
reported to Satbir complainant that Ved Parkash was
not on duty after 2.11.2002. As per information supplied
by Krishan on 14.11.2002, missing report was lodged on
19.11.2002. Ex.P-30 is the missing report at 9.10 P.M.
Ved Parkash while on duty failed to visit his house.
Intimation was with the complainant party that Ved
Parkash is not on duty then after receipt of information
on 14.11.2002, why no report was lodged. Report was
ultimately lodged on 19.11.2002. On 3.12.2002, Zile
Singh reported to the complainant that on 2.11.2002 he
(Zile Singh) had seen Rajesh and the appellant-accused
while quarrelling with Ved Parkash. On receipt of
intimation from Zile Singh on 3.12.2002, then Satbir got
recorded the First Information Report Ex.P-25.On 8.11.2002 the police party headed by
Assistant Sub Inspector Suraj Mal Police Station Rania
was present in the area of Bahiya then Harnam SinghCrl. Appeal No. 207-DB of 2008. 22reported that two dead bodies were noticed in the canal
minor. As per information, Assistant Sub Inspector
Suraj Mal had gone to the spot. Two dead bodies were
recovered from the canal. Entry was made in the
Roznamcha. Inquest reports were prepared. Post
mortem examination was got conducted, then dead
bodies were cremated through Municipal Committee,
Sirsa. Dead body was not identifiable. Firstly, Harnam
Singh was not examined, who had informed Assistant
Sub Inspector Suraj Mal that two dead bodies are lying
in the canal. If intimation was correct, then the question
is why photographs of the dead bodies were not got
clicked from the photographer. As per Dr. Ashok Gupta,
body was not identifiable. Kurta and Dhoti were found
on the person of the deceased. Question is whether
Kurta and Dhoti were found on the person of dead body
"A" or on the person of dead body "B". Whether dead
body "A" was of Ved Parkash or dead body 'B" of Ved
Parkash but one thing is clear that only Kurta and Dhoti
were found present on the person of deceased, whereas
Assistant Sub Inspector Suraj Mal stated that Pyjama
and shirt were produced before the police and the same
were taken into police possession on 9.11.2002. WhenCrl. Appeal No. 207-DB of 2008. 23Pyjama was not recovered from the person of the
deceased, then no question of production of Pyjama
before Assistant Sub Inspector Suraj Mal. After post-
mortem examination, dead body was got cremated
through Municipal Committee, Sirsa as unidentified. No
explanation why photographs of the dead bodies were
not got clicked from the photographer. Assistant Sub
Inspector Nihal Singh stated that on 12.12.2002, he
along with Satbir had gone to Police Station Rania shirt,
Pyjama and underwear were produced by the MHC
before the police party and the same were made into
sealed parcel and the sealed parcel was taken into police
possession. When underwear and Pyjama were not
recovered, then the question is how MHC had produced
Pyjama and underwear along with shirt before
Assistant Sub Inspector Nihal Singh. After post mortem
examination, clothes worn by the deceased were not
sealed by Assistant Sub Inspector Suraj Mal or MHC.
Doctor has not recovered Pyjama from the person of the
deceased, but Assistant Sub Inspector Suraj Mal had
taken into police possession Pyjama and shirt. Again as
per the statement of Assistant Sub Inspector Suraj Mal,
MHC had produced Pyjama, shirt and underwear beforeCrl. Appeal No. 207-DB of 2008. 24Assistant Sub Inspector Nihal Singh. Suppose
underwear, shirt and Pyjama were taken into police
possession by Assistant Sub Inspector Nihal Singh, then
next point is whether clothes taken into police
possession were of the deceased. Deceased was on duty
on 2.11.2002 as employee of Home Guard Department.
Deceased used to wear uniform. If on the above said
date, deceased was not in uniform and was wearing
Kurta, Pyjama and underwear then clothes recovered
from the person of the deceased should be shown to the
complainant to report as to whether clothes are of the
deceased or somebody else. Satbir brother of the
deceased appeared as PW-9 but he has not stated a word
that on such and such dhoti, shirt, Pyjama and
underwear were produced before him and the same were
identified to be of the deceased (Ved Parkash).
Investigating Officer did not state a word that he had
produced the clothes before the complainant and the
clothes were identified to be of the deceased. When there
is a recovery of some articles of the deceased then
recovered articles are to be mixed with the articles of the
similar nature. Then from the mixed articles the
complainant is to identify as to which articles are of theCrl. Appeal No. 207-DB of 2008. 25deceased and on identification of the articles memo is to
be prepared but in the present case, Pyjama, shirt and
underwear were not mixed with the articles of similar
nature. Shirt, Pyjama and underwear are easily available
in the market. Recovered articles were not produced
before the complainant at any stage to identify them as
to whether the clothes are of the deceased or not. When
two dead bodies were recovered, then the prosecution
was to explain whether the shirt, Pyjama and
underwear were recovered from the person of dead body
"A" or dead body "B". According to the doctor, there was
no injury. Dead body was not identifiable. Death was
due to asphyxia as a consequence of drowning vso
identification of dead body from clothes is without any
evidentiary value. Daily dead bodies are recovered from
the canal minor and are disposed of as unidentified. To
solve blind murder it is very easy to show few articles
alleged to be of the deceased and recovered to implicate
any one. Similarly in the present case, story qua last
seen extra judicial confession is doubtful. Only shirt and
Pyjama were introduced to show that dead body was of
the deceased. When dead body alleged to be disposed of
was not of Ved Parkash then entire story is to beCrl. Appeal No. 207-DB of 2008. 26ignored.No other contention was put forward.In the light of above discussion, appeal is
accepted. Appellant-accused is acquitted of the charge
levelled against him. Release warrant be issued.( JORA SINGH )
JUDGE
01.05.2009. ( JASBIR SINGH )
Anoop JUDGE |
60b70ea9-e9d5-597c-a9ba-90c1b7771fd0 | court_cases | Chattisgarh High CourtSamelal vs State Of Madhya Pradesh Now State Of ... on 5 March, 2012Author:Sunil Kumar SinhaBench:Sunil Kumar SinhaHIGH COURT OF CHATTISGARH BILASPUR
Criminal Appeal No 99 of 1996
Samelal
...Petitioners
Versus
State of Madhya Pradesh Now State of Chhattisgarh
...Respondents
! Mr Ravi Kumar Bhagat Advocate for the appellant
^ Mr Arvind Dubey Panel Lawyer for the State
CORAM: Honble Shri Rajeev Gupta CJ & Honble Shri Sunil Kumar Sinha J
Dated: 05/03/2012
: Judgement
JUDGMENT(05.03.2012)
(Criminal Appeal under Section 374 (2) of The Code of
Criminal Procedure, 1973)
Following judgment of the Court was
delivered by Sunil Kumar Sinha, J.(1) This appeal is directed against the judgment dated
15th of December, 1995 passed in Session Trial No. 9/93 by
the Third Additional Session Judge, Bilaspur. By the
impugned judgment, the appellant has been convictedu/s 302IPC and sentenced to undergo imprisonment for life and to
pay fine of Rs.5,000/- with default sentence of R.I. for 2
years.(2) The facts, briefly stated, are as under:-Deceased- Sudarshan was nephew of the appellant.
The appellant was issueless, therefore, he had kept
the deceased as his son. On 16.7.1992, the appellant
assaulted the deceased by a khunta (a round log used
in bullock-cart) on his head. The incident was
witnessed by Meera Bai (PW-2), Moolchand (PW-4),
Dasodiya Bai (PW-5) and Kashiram (PW-9). Moolchand (PW-4) lodged the First Information Report (F.I.R. - Ex.-P/2). Inquest (Ex.-P/9) was prepared and the dead body
of the deceased was sent for post-mortem. The post-
mortem examination was conducted by Dr. R.D. Gupta (PW-6). The post-mortem report is Ex.-P/5. The Autopsy
Surgeon found multiple serious injuries on the dead
body of the deceased. On internal examination, it was
found that there were fractures on right maxilla,
angle of the jaw, right temporal and parietal bone &
frontal bone. It was noticed that temporal, parietal
and frontal bones were broken into multiple pieces.
The case of the prosecution was mainly based on the
eye-witness account of above 4 witnesses, out of
which, Meera Bai (PW-2) and Kashiram (PW-9) did not
support the case of the prosecution. The learned
Session Judge, relied on the testimonies of Moolchand
(PW-4) & Dasodiya Bai (PW-5) and held that it was the
appellant who committed murder of the deceased by
giving multiple blows on his skull, therefore, he was
liable for punishmentu/s 302IPC.(3) Mr. Ravi Kumar Bhagat, learned counsel appearing on
behalf of the appellant, argued that Moolchand (PW-4) and
Dasodiya Bai (PW-5) are unreliable witnesses; they are
relative witnesses; therefore, conviction based on their
testimonies cannot be sustained.(4) On the other hand, Mr. Arvind Dubey, learned Panel
Lawyer appearing on behalf of the State, opposed these
arguments and supported the judgment passed by the Session
Court.(5) We have heard learned counsel for the parties at
length and have also perused the records of the session
case.(6) There is no proposition of law that the testimonies of
relative witnesses should not be relied on and their
evidence should be discarded out-rightly on the ground that
they were relatives of the deceased or the accused. The law
is that the evidence of such witnesses should be
scrutinized with great care and caution and after scrutiny
of their evidence, if the same appear to be trustworthy,
conviction can well be based on such evidence of the
relative witnesses.(7) Deceased- Sudarshan was maternal uncle of Moolchand
(PW-4). Moolchand deposed that on the fateful day, he heard
that the appellant was abusing the deceased. When he came
out of his house, he saw that the deceased saying to the
appellant "ys dkdk ekj ys ". The appellant was holding a
khunta. The appellant gave first blow to the deceased by
khunta on his skull. When the deceased fell down, the
appellant continued to assault him by khunta. He gave
repeated blows to the deceased.(8) Dasodiya Bai (PW-5) deposed that deceased- Sudarshan
was his maternal uncle's son. Appellant- Samelal had
assaulted the deceased by khunta of bullock-cart. He had
assaulted him on skull. She herself had witnessed the
assault. When the incident took place, she was sitting near
her house. The incident had taken place in the gali of
Kashiram's house. Deceased- Sudarshan died instantaneously.
According to her, the incident was also witnessed by
Moolchand (PW-4).(9) Dr. R.D. Gupta (PW-6) had conducted autopsy on the
dead body of the deceased and had noted above injuries
including above fractures (multiple fractures) on various
skull bones. He had opined that the above injuries could be
caused by hard, blunt and heavy object. In fact, the
testimonies of above 2 eye-witnesses are corroborated by
medical evidence of Dr. R.D. Gupta (PW-6).
(10) The above 2 eye-witnesses Moolchand (PW-4) and
Dasodiya Bai (PW-5) were put to lengthy cross-examinations
by the defence, but the defence has not been able to elicit
any such circumstances, on which, either their testimonies
may be discarded or it may be said that they were falsely
implicating the appellant in crime in question. If these
witnesses are taken to be relatives of the deceased on the
one hand, on the other hand, they are also relatives of the
appellant. We have scrutinized their evidence with great
care and caution. Their evidence inter-se corroborates
each other and it is further corroborated by medical
evidence. The houses of these witnesses are adjacently
situated to the house of the appellant. The incident
occurred at an open place at about 14.30 hours. There is no
question of mistaken identity. The incident was reported to
the police station by Moolchand (PW4) at about 16.30 hours
on the same day. The distance of police station is 10 Kms.
The F.I.R. (Ex.-P/2) contains all above details with
particulars of the appellant and the deceased. Even it
contains the words spoken by deceased before the assault
like "ys dkdk ekj ys ". Moolchand (PW-4) has proved the
contents of the F.I.R. (Ex.-P/2).(11) On appreciation of the entire evidence on record, we
do not find any infirmity in the findings recorded by the
Session Court that it was the appellant who assaulted the
deceased by khunta and he was liable for punishmentu/s 302IPC.(12) For the foregoing reasons, we do not find any
substance in this appeal. The appeal, therefore, is liable
to be dismissed and is hereby dismissed.CHIEF JUSTICE |
61516473-407d-5614-9baf-3504892ac0e6 | court_cases | Delhi District CourtCbi vs . (1) Smt.Sheila Kaul (Since Deceased) on 29 February, 20161
IN THE COURT OF SH. SANJEEV AGGARWAL:
SPECIAL JUDGE: CBI03 (PC ACT): DELHI
CC No.12/15 RC : 48(A)/1996
PS : CBI/ACB/ND
U/s : 120B r/wSec.409IPC andSec.
13(2)r/wSec.13(1)(d)and13(1)
(c)of PC Act, 1988.
CBI Vs. (1) Smt.Sheila Kaul (since deceased)
W/o Lt. Sh.K.N.Kaul
formerly Minister for Urban Affairs &
Employment, New Delhi,
R/o Everest House, Opp. Pawan Cinema,
G.T.Road, Ghaziabad (U.P).
(2) P.K.Thungon
S/o Sh.P.W.Thungon
Formerly Minister of State in the M/O UA&E, ND
R/o flat no.7, Yashwant Place, New Delhi
Permanent address Thungon House, Bomdila,
West Kameng District, Arunanchal Pradesh.
(3) Lakhpa Tsering
S/o Sh.Tsering Gyurme
R/o Village Dirang, Distt.West Kameng
Arunanchal Pradesh
presently residing at RZ53, Raj Nagar,
Palam Colony, New Delhi.
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 1 of 194
2
(4) Smt.Krishna
w/o Late Sh.Krishna
R/o 65, Hari Nagar Ashram,
New Delhi.
(5) Smt.Tulsi Balodi (since deceased)
W/o Sh.P.B.Balodi
R/o 67, TypeII, Minto Road,
New Delhi.
Date of Institution : 06.06.1998
Judgment Reserved : 10.02.2016
Judgment Delivered : 24.02.2016
J U D G M E N T1. In brief, prosecution case is, that the Hon'ble Supreme
Court of India, vide order dated 14.02.96 passed during the hearing
of writ petition No.585 of 1994 directed the CBI to enquire into the
allegations of corruption and bribery in the matter of out of turn
allotment of Government accommodation/shops etc. and if the
allegations are substantiated then to register cases against the
persons who are prima facie found responsible. After the
preliminary enquiries, case RC 48(A)/96DLI was registered in ACB
branch of CBI, New Delhi on 16.06.96 against Smt. Sheila Kaul and
others on the allegation that Smt. Sheila Kaul while working as
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 2 of 194
3
Union Minister in the Ministry of Urban Development (Lateron
renamed as Ministry of Urban Affairs and Employment) New Delhi
entered into a criminal conspiracy with her Minister of State
Sh.P.K.Thungon and others and by abusing her official position as
the Union Minister for Urban Development (UDM) and as a public
servant in her capacity as the custodian of Government shops/stalls,
dishonestly allotted shops on economic licence fee basis with a view
to cause pecuniary gain to the allottees and corresponding wrongful
loss to the Government in contravention of the rules/instructions
governing such allotments without calling for any competitive
tenders/applications from general public. Thorough investigation
has revealed three distinct instances of criminal conspiracy as well
as abuse of official position by Smt.Sheila Kaul and others during
the period from October, 1991 to July, 1995. The instant case
relates to the acts of criminal conspiracy, abuse of official position
and criminal breach of trust committed by the accused persons
during the period 1993 to 1994 as per details given hereunder:2. Investigation has revealed that Smt.Sheila Kaul (A1)
remained posted as Union Minister for Urban Development, which
Ministry was later on renamed as the Ministry of Urban Affairs &
Employment, New Delhi, during the period from June 1991 to
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 3 of 194
4
September, 1995 and Sh.P.K.Thungon (A2) remained posted as
Minister of State in the said Ministry during the period from January,
1993 to September, 1995. The accused persons A3 to A5 are the
private persons who in criminal conspiracy had obtained undue
pecuniary benefits.3. Investigations further revealed that the accused persons
A1 to A5 entered into a criminal conspiracy during the period
between September, 1993 to June, 1994 with an object of
dishonestly or fraudulently obtaining undue pecuniary advantage in
the matter of allotment of shops on economical licence fee basis in
contravention of the rules governing such allotments and in
pursuance to the said criminal conspiracy Smt.Sheila Kaul (A1) by
abusing her official position as the Minister for Urban Development
and in this capacity as the custodian of the government shops,
without any public interest, sanctioned allotments of three shops on
09.04.94, without calling for any tenders or applications from the
general public in Pleasure Garden Market (Opposite Red Fort) and
Hanuman Road Market causing undue pecuniary advantage to
Sh.L.Tsering (A3), Smt. Krishna (A4) and Smt. Tulsi Balodi (A5).
In furtherance of the said conspiracy A1 and A2 the accused public
servants committed the offences of criminal breach of trust with an
RC NO. 48(A)/1996
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5
object of causing undue pecuniary advantage to their
relations/friends (A3 to A5) and dishonestly or fraudulently allowed
A3 to A5 to convert for their own use, without any public interest,
the Government shops entrusted to the Ministry of Urban
Development.4. Investigations further revealed that as per para 2 (a) of
the manual of office procedure prepared by the Directorate of
Estates regarding licenses in respect of markets, all the vacancies
arising in respect of shops/stalls were required to be filled up as a
matter of rule by inviting open tenders from the public. A
provision for reservation for 22.5% of the vacancies for Scheduled
Castes was also made and applications were required to be invited
from these communities in respect of reserved quota to whom
allotments were to be made by draw of lots on payment of such
economic licence fee as may be decided by the government. As
per para2(b) of this manual all allotments were to be made on leave
and licence basis and the allottees were required to pay full amount
of security deposit equivalent to 6 month's licence fee and one
month's advance licence fee, execute a licence deed and produce
an affidavit giving the local as well as the permanent home address
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 5 of 194
6
st
and a recent passport size photograph attested by a Magistrate 1
class/Gazetted Officer at the time of obtaining possession slip from
the Directorate of Estates.5. Investigations further revealed that in 1979, an office
memorandum No.17017/4/77WZ, dated 24.03.79 was issued by the
then Ministry of Works & Housing vide which policy to be adopted
for development, construction and management of shopping centres
in various government colonies in Delhi was circulated. As per para
2(i)(a) of this O.M., the construction of shopping centres was to be
undertaken by the CPWD and thereafter the shops were to be sold
by auction by the Land & Development Officer, after fixing
minimum reserve price in consultation with the Finance Division.
Para 3 of this O.M. further states that this would be the general
policy to be adopted in future for the disposal of shops, exceptions
may be made if the circumstances so warrant. There is no
mention of any reservation of any kind in this O.M.6. The manual of office procedure regarding management
of Central Govt. markets in Dehli/N.Delhi was again revised upto
1.2.92 by the Directorate of Estates. As per para 3(a)(i), all
vacancies were required to be filled, as a rule, by inviting tenders
RC NO. 48(A)/1996
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7
from the public. Similar provision for reservation of 22.5% of the
vacancies for Scheduled Caste candidates which was existing in the
earlier manual of 1974 was also incorporated. Para 12 of this
manual mentions that the Govt. may, for reasons to be recorded
in writing, relax all or any of the provisions of the
rules/instructions governing the policy of allotment of shops
etc.7. Investigations further revealed that in pursuance to the
said criminal conspiracy Sh.P.K.Thungon (A2) dishonestly initiated
a note on 06.12.93 mentioning therein that shops/stalls have not
been allotted to SC/ST candidates at all, although there is 22.5%
reservation for SC/ST candidates in such matters. He further
mentioned that he has received some applications from SC/ST
candidates namely Sh.Kessang Tsering and Sh. L.Tsering (A3). He
recommended that shop no.12 and 13 which were reported to be
lying vacant in Lajpat Rai market may be allotted to Sh.Kessang
Tsering and Sh.L.Tsering (A3) respectively. He further stated that
shop nos. 85, 325 and 405 in New Lajpat Rai Market were also
reported to be lying vacant and there was another case of Ms.
Krishna (A4) w/o Late Sh.Krishan, who was a widow and had two
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 7 of 194
8
school going children, was also pending with the Department and on
extreme compassionate ground her case for allotment of either of
the shop in New Lajpat Rai Market should also be considered.
Smt.Sheila Kaul (A1) ordered on this note that there are some more
VIP references pending and Director of Estates 1 may put up
composite proposal at an early date. It was pointed out by DEI in
his note dated 27.12.93 that any shop falling vacant in P.G.Market
(New Lajpat Rai Market) can only be disposed of through an open
auction/competitive tender. However, as desired by Smt.Sheila
Kaul, he placed 22 other applications received in the office for
consideration of the Urban Development Minister. Secretary (UD)
Sh. K. Padmanabhaiah enquired from DEI, as to what was the
policy regarding lease/sale and fixation of lease price/sale price for
those shops and what was the policy relating to allotment and
whether there was any waiting list or otherwise how is the candidate
selected for allotment.8. A detailed note mentioning policy of the Government was
put up by Sh. Harcharanjit Singh, Director of Estates on 17.01.94 to
Secretary (UD) who recommended that the persons who had
applied for allotment of shop may participate in the auction, if they
so desire. On this note which was put up on 18.01.94 by Secretary
RC NO. 48(A)/1996
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9
(UD), Sh.P.K.Thungon (A2) again put up his note on 19.01.94
strongly recommending the cases of Sh.Kessag Tsering and Sh.
L.Tsering (A3) suggesting therein that shop(s) no.85 and 405 in
New Lajpat Rai Market may be alloted to them and a shop should
also be allotted to Smt.Krishna by invoking provisions of Clause3 of
the policy of 1979.9. On this note, Smt.Sheila Kaul (A1) on 09.04.94 by over
ruling the objections of the office and by abusing her official position
as the Minister for Urban Development and as such custodian of the
government property in the shape of shops, dishonestly or
fraudulently ordered allotment of shop no.405 to Sh.L.Tsering (A3)
and shop no.85 to Smt. Krishna (A4), with a view to cause undue
pecuniary benefit to the allottees (A3 and A4), without any public
interest and also to favour Sh.P.K.Thungon who was her Minister of
State, without recording any reasons, whatsoever, for non
consideration of the other 22 applications which were also put up by
the office. Sh. L. Tsering (A3) is nephew of Sh.P.K.Thungon (A2)
and Sh.P.K.Thungon intentionally concealed this fact in his
recommendation. Smt. Krishna (A4) is the sisterinlaw of
Sh.Karmbir Singh Mann a common friend of both the Ministers i.e.
Smt. Sheila Kaul and Sh. P.K.Thungon. These allotments were
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 9 of 194
10
opposed by the office, but Sh. P.K.Thungon vide his note dated
16.05.94 mentioned that he has discussed this matter with Smt.
Sheila Kaul and the allotment orders be issued the same day itself
and the possession may be given after the licence fee was fixed. As
such allotment orders were issued by the office on 16.05.94 itself
charging economical licence fee of Rs. 298 for shop no.85 and Rs.
291 for shop no.405 per month. Had these shops been put to
auction these would have fetched at least Rs. 10,000/ each per
month as revenue for the Government which were allotted at a
pittance by Smt. Sheila Kaul in criminal conspiracy with the allottees
as well as Sh. P.K.Thungon.10. When the orders sanctioning allotment of shop no.85 and
405 were received in the office, a note was recorded by Sh. P.
Bhardwaj, Assistant Director (M) on 27.04.94 mentioning therein that
shops in the rehabilitation market are required to be disposed off by
L&DO by open public auction and not on leave and licence basis.
He further, proposed that in the first instance views of Finance
Division may be obtained. Dy. Director (M) Sh. G.B.Singh while
concurring with the views of his AD further mentioned that it was for
the first time that UDM had made allotment of shops in a
rehabilitation market where Government had already conferred
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 10 of 194
11
ownership rights. He further stated that UDM had not indicated the
rate of licence fee on which the said 2 shops were to be allotted. He
also gave details of 4 shops which were allotted in the last few years
on tender basis. The shop in Ring Road Market fetched a monthly
rent of Rs.4,005/ in 1994 and in Andrews Ganj Market it fetched a
rent of Rs.2700/ during the same year. A shop in Sector 8,
R.K.Puram was allotted @ Rs.4,672/ per month in 1987. He further
pointed out that as per existing policy, those shops had to be
disposed of through public auction and any allotment of those shops
to a person without calling tender(s) would be a departure form the
general policy involving financial implications and loss of revenue
and hence concurrence of Finance Division would be necessary
before implementation of the orders of UDM for the allotment of the
said 2 shops. Sh. S.Pattanayak, Director of EstatesII concurred
with DD (M) and marked the file to finance division for comments.11. In the Finance Division case was examined by
Sh.V.P.Sharma, Desk Officer on 06.05.94 and he pointed out that
both the shops were located in the P.G.Market which is situated just
opposite to the Red Fort at the heart of Delhi which is a hub of
commercial activity. He further mentioned that the reasons
mentioned by the Hon'ble Minister for allotting those shops may
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 11 of 194
12
appear to be genuine, yet while helping individuals the interest of the
Government should also be kept in view and if the 2 individuals to
whom the said 2 shops have been allotted, are to be helped, they
should be allotted shops in any of the other markets because these
2 shops in P.G.Markets could fetch quite a sizeable revenue for the
Government, if put on tender. The file was routed through Smt.
Neena Garg, Director (F), Sh.Girish Bhandari, Joint Secretary &
Financial Advisor and Sh. N.P.Singh, Addl. Secretary. All these
officers were basically opposed to allotment of these shops in this
fashion. The file was again received by Sh. P.K. Thungon, MOS
who recorded his note on 12.05.94 mentioning therein that 2 shops
in question be allotted on regular basis on payment of licence fee to
the said allottees. He further discussed this matter with Smt. Sheila
Kaul and recorded his note on 16.05.94 after which he ordered that
allotment orders be issued on the same day although the
possession could be given after the licence fee was fixed. The
concerned Executive Engineer of CPWD was also influenced to
furnish the economic licence fee at the earliest.12. Investigations further revealed that a photocopy of
request addressed to Urban Development Minister was received in
the office of Director of Estates on 29.03.94 for allotment of shop no.RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 12 of 194
132, Hanuman Road Market to Mrs. Tulsi Balodi (A5). Her husband
Sh. P.B.Balodi was working as Attendant in Prime Minister's office.
There is no other record to show as to how this application reached
in the office of Director of Estates. But, it was processed at a
lightening speed on 30.03.94 by Sh. S.Pattanayak, DEII himself
and on that very day, it was recommended by Sh. Haracharanjit
Singh, DEI and the Secretary (UD) for approval of allotment.
Smt.Sheila Kaul (A1) dishonestly as well as by abuse of her official
position approved the proposal on 09.04.94 without any public
interest with an object of causing undue pecuniary advantage to
Sm.Tulsi Balodi in pursuance of the said criminal conspiracy. Smt.
Sheila Kaul (A1) confirmed vide order dated 23.07.94 that the
allotment has been made on economical licence fee basis. Offer of
allotment was issued on 31.5.94 and necessary documents were
submitted on 06.06.94 by Smt.Tulsi Balodi and the occupation slip
was issued on the same day. She took possession of the shop on
07.06.94.13. All the aforesaid three allotments effected on 09.04.94 by
Smt. Sheila Kaul were not covered under the policy of 1979 and
were totally arbitrary. These allotments were made to favour
nephew of her MOS Sh. P.K. Thungon, a close acquaintance and
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 13 of 194
14
CPWD contractor Sh.Karambir Singh Mann whose sisterinlaw Smt.
Krishna is one of the allottees and personal attendant of the then
P.M Sh. P.V.Narsimha Rao resulting into a huge loss of revenue to
the Government and corresponding gain to the allottees. The
aforesaid acts of allotments amount to obtaining valuable thing or
pecuniary advantage without any public interest in pursuance to the
criminal conspiracy and abuse of position and further to
misappropriate government property which was entrusted to
Smt.Sheila Kaul being the Minister incharge of Urban Development
Ministry of Government of India.14. Investigations further revealed that tenders were invited
from the public for the allotment of various shops pursuant to the
orders of the Hon'ble Supreme Court and these tenders were
opened on 24.02.1997 and the highest rate quoted for shop number
2 Hanuman Road Market was Rs.9200/ per month as against
economic licence fee of about Rs.576/ p.m. charged from the
allottee of the shop in question, which clearly shows that huge
undue pecuniary favour was shown to the accused allottees
resulting in a corresponding wrongful loss to the public exchequer.15. There was no public notice or advertisement inviting
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 14 of 194
15
applications from eligible persons and the allottees from whom
applications were received belonged to a very limited circle
centering around Smt. Sheila Kaul and Sh. P.K.Thungon or VVIP.
These applications were received directly in the office of the Minister
and there was no verification of antecedents of the applicants and
the claims made by them in their application. Such allotments were
made in pursuance of criminal conspiracy and by abuse of position
therefore no verification was made. Smt. Sheila Kaul (A1) ordered
allotments of shop no.85 and shop no.405 in P.G.Market without the
applications being processed by the office by following the normal
office procedure and allotments were ordered without verifying the
eligibility of the applicants. None of the allottees was entitled to
allotment of shops on economical licence fee basis in this fashion
and they knowingly obtained undue pecuniary advantage in
conspiracy with Smt. Sheila Kaul and Sh. P.K.Thungon.16. By the aforesaid acts the accused public servants
abused their official position and caused undue pecuniary
advantage in pursuance of the said criminal conspiracy to A3 to A5
and such acts were without any public interest. Thus by the
aforesaid acts Smt. Sheila Kaul (A1), Sh. P.K.Thungon (A2) and
the three allottees namely Sh. L. Tsering (A3), Smt. Krishna (A4)
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 15 of 194
16
and Smt. Tulsi Balodi (A5) committed offences punishable u/S 120
B r/w 409IPCandSection 13 (2)r/wSection 13(1)(d)and13(1)(c)of the Prevention of Corruption Act, 1988. Smt. Sheila Kaul (A1)
also committed substantive offences u/S 409IPCand 13(2) r/wSection 13(1)(d)&13(1)(c)of PC Act 1988.17. Smt. Sheila Kaul (A1) and Sh. P.K.Thungon (A2) were
no more public servants. However, sanctionu/S 197Cr.P.C for their
prosecution had been obtained from the competent authority.18. After filing of the chargesheet, the accused persons were
summoned for the offence(s) punishable u/S 120BIPCr/wSection
409IPC r/wSec.13(2)r/wSec.13(1)(d)and13(1)(c)of the PC Act,
1988 and accused Smt.Sheila Kaul was also summoned in addition
for substantive offence(s) u/S 409IPCandSec.13(2)r/wSec.13(1)(c) of thePC Act.19. After summoning, the requisite documents were supplied
to the accused persons. Vide detailed order dated 27.03.09 on the
point of charge, it was found there was sufficient material on the
record for the commission of offence punishable under Section 120
B r/wSec.409IPC and 13(2) r/wSec.13(1)(c)and13(1)(d)of PC
Act against A1 to A5. Besides that there was found sufficient
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 16 of 194
17
material to frame charge(s) for substantive offence(s) punishable
u/S 409IPCandSec.13(2)r/wSec.13(1)(c)and13(1)(d)r/w Sec.
120BIPCagainst A1. Consequent thereto, formal charge(s) was
framed against all the accused persons to which all of them pleaded
not guilty and claimed trial.20. It would be pertinent to mention herein that during the
trial, A5 Smt.Tulsi Balodi expired and proceedings against her
stood abated vide order dated 21.08.14, similarly A1 Smt.Sheila
Kaul also expired and proceedings against her also stood abated
vide order dated 12.08.15.21. Prosecution in support of its case has examined 35
witnesses.22. PW1 is Sh.Rajeev Nayan Sharma, Dy. Director, Ministry
of Finance, New Delhi. He is a formal witness who has stated that in
the year 1998 he was posted as Accounts Officer in Land &
Development Office (L&DO) , Nirman Bhawan, New Delhi under the
Ministry of Urban Affairs (hereinafter referred to as UD) and on the
instructions of his officer, he delivered the file no.J.13011/5/91LD of
Lands Division of UD Ministry in the office of CBI to Mr.P.C.Sharma
vide memo Ex.PW1/1.RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 17 of 194
1823. PW2 is Sh.Trilok Chand, Stenographer, P.A to MOS
Agriculture, Krishi Bhawan, New Delhi. He stated that in the year
1994 he was posted as LDC in MarketI Section, he was dealing
with Sector1 to 5, R.K.Puram Market and Janpat Market, at the
instance of his boss Asst. Director P.Bhardwaj, he filled up few
authority slips for taking possession, he identified the possession
slips no.049522 and 049523 in the book no.976 stating that the said
counterfoils are in his handwriting and they bear signatures of
Mr.P.Bhardwaj. The slips are Ex.PW2/1 and Ex.PW2/2. He also
after seeing the counterfoil number 049521/976 stated that the same
was in the handwriting of Ram Chander, whose handwriting he was
familiar with and also bears signatures of Mr.P.Bhardwaj, same is
Ex.PW2/3.24. PW3 is Sh.Ram Chandra, who was working in the year
1993 as Assistant in the Ministry of UD and thereafter, posted to
Directorate of Estates in Admn. A Section and was transferred
thereafter to Market1 Section in October 1993. He stated that he
had seen the seizure memo D95 in the chargesheet, same bears
his signatures, vide this memo he had produced 44 counter slips of
the authority slips to the CBI. The copy of the said memo D16 is
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 18 of 194
19
Ex.PW3/A, bearing his signatures. The counter slips were handed
over by him, also included three counter slips D17 which are
Ex.PW2/1 to Ex.PW2/3.The counter slips Ex.PW2/3 was in his
handwriting and that of Ex.PW2/2 bears his signatures.25. PW4 is Mr.M.N.Mandal, who was working with the
L&DO at the relevant time. He after seeing the original memo D55
which is lying in chargesheet no.3 in RC 48(A)/96DLI stated that the
same bears his signatures and is Ex.PW4/A. Vide this seizure
memo he handed over the files mentioned therein pertaining to L &
DO department.26. PW5 is Mr.Jaidev Singh, another formal witness. He
stated that in 1994, he was working as UDC in Income tax
department. After seeing the indemnity bond he stated that the
same bears his signatures at point A, which is Ex.PW5/A,
whereupon he has signed as a witness. The said indemnity bond
pertains to accused A4.27. PW6 is R.D.Sahay, he deposed that from 1989 to
December 2000 he remained posted in the Ministry of UD,
Directorate of Estate. After seeing the handing over memo D6 in
chargesheet no.3 he stated that vide this memo he handed over 52
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 19 of 194
20
files, the details of which are also mentioned therein, which also
bears his signatures, same is Ex.PW6/A.28. PW7 is Sh.Pradeep Chand Phuloria. He has deposed
that he was working at the relevant time in CPWD. He did not prove
any document, only deposed that he was residing at the address
G268, Naroji Nagar, New Delhi and that one Rajesh Kumar never
resided with him, though the licence fee Ex.PW8/A contains his
address mentioned above and the said Rajesh never resided with
him at the said address.29. PW8 is Sh.Inder Kumar. He has deposed that accused
Smt.Krishna (A4) is the wife of his brother Late Sh.Kishan Maan.
After seeing the licence deed in file D2 he stated that the same at
page no.22 to 26 bears his signatures at point C and is Ex.PW8/C
and he has put his signatures thereon at the instance of his elder
brother Karamvir Maan. After seeing the photographs at S.No.13
and 14 on the said documents, he stated that the same are of (A4)
Smt.Krishna. He was also declared hostile on certain points by the
Ld.SPl.PP for CBI, but despite that he did not support the case of
prosecution, as earlier recorded in his statementu/S 161Cr.P.C.RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 20 of 194
21
30. PW9 is Sh.Ashok Kapur. He was working as PrivateSecretary to A2 P.K.Thungon, MOS (UD), Government of India. He
after seeing the file D4 which contains the notings dated 06.12.93
at page no.16, 19.01.94 at page 24, 12.5.94 at page 33 and 16.5.94
at page 33, stated same bears the signatures of A2 then MOS at
point A, which are Ex.PW9/A to Ex.PW9/D. The photocopies of said
notings are also kept in file no.D1, D2, D3.31. He further deposed after seeing the file D1 which
contains the photocopies of his notings and impression of his
signatures that the same bears seal in original of Director of Estates
and endorsement of DEI and DEII in original. The original of the
noting is in file D2 at page 6 which is Ex.PW9/E, which bears his
signatures at point A. The photocopies of the said notings is kept in
file D1 at page 8, as per the notings, it is mentioned allotment for
shop no.85 and 405, P.G.Market have been allotted in the name of
Smt.Krishna and L.Tsering. It is also mentioned in the said decision
that the rent of the shops would be fixed within fortnight, further it
has been mentioned that MOS (UD) had desired the stipulated date
be adhered to and rent be fixed within 2 weeks.32. PW10 is Sh.K.Dharmarajan, who during the relevant
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 21 of 194
22
period was posted as Joint Secretary in the Ministry of UD. After
seeing file D5 (original in chargesheet no.III as D2), he stated that
he dealt with the said file in respect of management and disposal of
shops in seven markets, shopping centers constructed by CPWD in
Central Government Colonies. The issue in this file related to fixing
of reserve price for these shops that were required to be disposed
off by auction as per the policy in existence. File D5 contains his
note dated 03.02.94 at page no.122 (original in chargesheet no.III as
D2). The same is Ex.PW10/A. The file also contains his note
dated 15.02.94 at page 123 to 126,(original in chargesheet no.III as
D2), same is Ex.PW10/B.33. He after seeing the file D11 (original in chargesheet
no.III as D84), stated that he dealt with the said file in respect of
management and allotment of shops in the markets, which were
constructed by CPWD in Central Government Colonies. It also
deals with respect to certain allotments made by then Union Minister
to place shops at the disposal of Directorate of Estates for allotment
of shops to persons on a predetermined licence fee basis which at
that time was against the policy guidelines of the government. File
D11 contains his note dated 01.05.92 at page no.10 to 14(original
in chargesheet no.III as D84) the same is Ex.PW10/C. The file also
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 22 of 194
23
contains his note dated 01.06.92 at page no.14 and 15, the same is
Ex.PW10/D, the file also contains his note dated 09.10.92 at page
19 (original in chargesheet no.III as D84), same is Ex.PW10/E.34. He further deposed that a letter dated 18.05.94 at page
45 of the above file was written by him to Mr.Balachander the then
Private Secretary to Minister of Welfare in response to his letter
dated 25.04.92 informing him regarding allotment of shops in Lodhi
Road complex under the control of L&DO had to be disposed off
only by public auction and that allotment of shops on rental basis or
on premium at predetermined rates was not within the purview of
existing policy of government at that time, the office copy of said
letter is Ex.PW10/F. He was also asked to explain the policy
prevailing in the year 19931994 for allotment of shops, to which he
deposed that the government policy at that time for the
allotment of shops under the control of L&DO in various
markets in government residential colonies was that they were
to be disposed off on auction basis. For this purpose, a reserve
price would be fixed. There was no policy at that time for
making allotments in individual either on licence basis or on
premium on pre determined prices.RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 23 of 194
2435. PW11 is Mr.G.V.Krishna Rau. He has deposed that at
the relevant period he was on deputation to the Government of
India, Ministry of UD. For about 2½ years he was working as Land
and Development Officer and thereafter as Dy. Secretary, Lands
and Water Supply in the Ministry. He after seeing the file
D11(original in chargesheet no.III as D84) stated that it contains
his note dated 20.04.92 which was submitted by him as Land and
Development Officer and marked to Dy. Secretary (Lands), which
relates to the disposal of shops, stalls, etc. constructed in
government colonies by the L&DO, explaining the background and
the reasons for non disposal of these shops and stalls and need for
revision of reserve price and requesting the Ministry to take a clear
cut policy view regarding disposal of these shops and stalls. The
note is Ex.PW11/A (D11).36. He after seeing the file D4 stated that same contains
note dated 31.12.93 at page 19 and 20 on the noting side, he dealt
with this file as Dy. Secretary, Land and Water Supply, the same
note was accorded by him, he marked it to Directorate of Estates,
the said note is Ex.PW11/B (D4), which bears his signatures, he
submitted this note in response to the query raised by then
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 24 of 194
25
Secretary, UD who wanted to know, what was the policy regarding
lease/sale and fixing of lease price / sale price for these shops , in
this note he explained the basis of disposal of shops, stalls in govt.
colonies by the L&DO only through public auction in terms of the
policy laid down in OM dated 24.3.79 and the efforts made to
dispose off these shops and the exploration of possibilities for
transferring these shops of the local bodies as reserve price.37. He after seeing the note 03.12.93 at page 113 on file D5
(D2 in charge sheet no.3) the said note is Ex.PW11/E bearing his
signatures the same pertains to issue of disposal of shops and
refixation of reserve price. He also after seeing the note dated
16.12.93 at page 116 on file D5 (D2 in chargesheet no.3) which is
Ex.PW11/F bearing his signatures the same pertains to issue of
disposal of shops and refixation of reserve price.38. He after seeing another note dated 11.01.94 at page 117
to page 122 on file D5(D2 in chargesheet no.3), the said note is
Ex.PW11/G bearing his signatures. It is a self contained note
desired by the Joint Secretary and this also relates to the same
issue of disposal of shops and refixation of the reserve price as well
as the alternate of refixing the reserve price etc. the status relating
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to shop no.85 P.G.Market, related to refixation of price was also
explained and the file was referred back to Directorate of Estates.
The office memorandum is Ex.PW11/C.39. He was also shown file D5 (D2 in chargesheet no.3)
which contains the copy of his earlier note dated 20.4.92 at page
106 to 108 same is Ex.PW11/A1 he was also shown note dated
05.5.93 at page 109 on file D5 (D2 in chargesheet no.3) the note is
Ex.PW11/D bearing his signatures. It also relates to the same issue
of disposal of shops and refixation of reserve price. He was also
shown note dated 08.04.94 at page 129 to 130 on file D5 (D2 in
chargesheet no.3) the said note is Ex.PW11/H bearing his
signatures. He was also shown note dated 06.09.93 in file D4
which was regarding the revision of reserve price which was underconsideration and he submitted the file to Joint Secretary, UD
stating that MOS (UD) wanted to know the position immediately with
regard to the fixation of revised reserve price. The said note is
Ex.PW11/J, which bears his signatures at point A.40. PW12 is Sh.Desh Pal Singh.He has deposed that during
the relevant time i.e. in June 1994 he was posted in Planning
Commission, NIC Division, looking after the computer maintenance
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of the adjoining buildings i.e. Dak Bhawan, Sanchar Bhawan, Shram
Shakti Bhawan, he was maintaining the computers of office and
residence of Ministers and Member of Parliaments. After being
shown licence deed contained in file D1 from pages 24 to 29 he
stated that the same pertains to L.Tsering who is the son of brother
in law (i.e. brother of wife of Mr.P.K.Thungon) of the accused
P.K.Thungon, the license deed is Ex.PW12/A bearing his signatures
at point A. and that of L.Tsering at point B. He also deposed that
L.Tsering used to meet him in the office of Ministry of Water
Resources. He also told him that he used to reside with
Mr.P.K.Thungon.41. PW13 is Sh.S.P.Singh. He stated that in June 1994 he
was posted in DGW, CPWD, Nirman Bhawan He was shown
licence deed contained in file D3 at page no.14 to 19 which relates
to allotment of shop no.2 Hanuman Road Market to the accused
Tulsi Balodi A5. He knew her through one of his friends and he
signed on the request of his friend Sh.S.K.Sharma and the licence
deed is Ex.PW13/A.42. PW14 is Sh.Sunil Kumar Sharma, another fomal
witness. He also deposed that in year 1994 he was owrking as LDC
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in DGW, CPWD , Nirman Bhawan, New Delhi at that point of time he
was residing in Minto Road, New Delhi and P.B.Balodi was also
residing in the same locality. After seeing the licence deed
Ex.PW13/A )(D3) paged no.14 to 19, he stated that the same
pertains to allotment of shop no.2, Hanuman Road Market to the
acused Krishna Balodi w/o P.B.Balodi and on the request of
Mr.Balodi he put his signatures on licnece deed Ex.PW13/ A and the
indemnity bond pertaining to her also bears her signatures at point A
which is Ex.PW14/A.43. PW15 is Mr.V.P.Sharma. He deposed that at the
relevant time he was posted as Desk Officer in the Finance Division
of Ministry of UD . After seeing the file D4, relating to allotment of
shops he stated that the said file was marked to him for examination
and scrutiny from financial angle, after examination of the same, he
submitted a note dated 05.05.94 detailing his views, same is
Ex.PW15/A, which bears his signatures at point A. File D4 also
contains a note of then Dy. Director G.B.Singh, he identified his
signatures at point A, as he had seen him writing and signing. The
said note is Ex.PW15/B.44. PW16 is Mr.Prem Ballabh Balodi, husband of A5. He
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deposed that in the year 1991 he joined the personal staff of the
then Prime Minister of India. Accused Tulsi Balodi is his wife, who
was alloted a shop at Hanuman Road, Delhi. At that time she was
working as a labourer in a private company. After receiving the
allotment letter, he accompanied his wife to the Directorate of
Estates for submitting the requisite documents.45. He after seeing the copy of application for allotment of
shop stated that same is photocopy of the application submitted by
his wife, which bears her signatures at point A, the copy of said
application is Mark PW16/X. The file D3 also contains the
photographs of his wife at S.No.C9 and C10 which are
Ex.PW16/A1 and A2. The indemnity bond is already Ex.PW14/A,
bearing her signatures at point B1 and B2, undertaking at page 30
is Ex.PW16/B bearing her signatures at point A. Licence deed at
page 14 to 19 is already Ex.PW13/A, bearing her signatures on all
pages. He knew Sh.S.K.Sharma, who was his neighbourer, and
their children used to study together. The affidavits at page 20 and
21 also bears signatures of his wife at point A, same is
Ex.PW16/C1 and C2. Occupation slip also bears signatures of his
wife at point A, same is Ex.PW16/D. The forwarding letter vide
which these documents were submitted to the Directorate of Estates
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also bears signatures of his wife, same is Ex.PW16/E.46. PW17 is R.K.Khandekar. He has deposed that in the
year 1994, he was posted as OSD to the Prime Minister of India and
after seeing the file D3 relating to allotment of shop to Smt.Tulsi
Balodi, which contains 2 photographs already Ex.PW16/A1 and
A2, he stated that he has attested the said two photographs.47. PW18 is Sh.Sushil Kumar Satrawala. He has deposed
that in the year 1991 he was on deputation to the Ministry of Heavy
Industry, Govt. of India and remained posted in the office of Minister
of State, Heavy Industries, Mr.P.K.Thungon till January 1993.Thereafter, Mr.P.K.Thungon took over the charge of MOS, UD and
he took him alongwith him to the said Ministry. In March 1993,
Mr.P.K.Thungon was given additional charge of Minister of State for
Water Resources and he was also working there with him. Lakhpa
Tsering is the relative of Mr.P.K.Thungon and after seeing the file
D1, he identified two photographs of Lakhpa Tsering. The said
photographs are Ex.PW18/A1 and A2.48. PW19 is Sh.Sardar Singh. He deposed that he was
posted at the relevant time as Executive Engineer (Licence fee) in
the office of Chief Engineer, ZoneI, CPWD, New Delhi, his duties
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were to calculate economic licence fee for the government
properties and private properties taken on hire by government
departments. The properties may include shops and stalls located
in the market , the usual practice for revising or renewing the
economic licence fees for shops was for the period of 3 years, in
case of Ministries, it can be of 5 years or it can be earlier depending
upon land rates. The basis of calculating licence fee is, cost of land
at the prevailing rate during the period and the cost of
structure/building of a particular land and the land rates are usually
referred by L&DO. They were the authority to fix the land rates and
the cost of building decided on the schedule of rates of CPWD
during the period. They work out total cost and some percentage is
taken for calculation.49. After seeing the file no.L&DO/PSIV/PolicyII/83 (PartI)
(D4) and also page no.31/C, he stated that it was received in their
office which is already Ex.PW26/D, the same was from Directorate
of Estates on the subject of licence fee in respect of shop no.85 and
405, Pleasure Garden Market, requesting for licence fee in respect
of the above mentioned shops and to intimate the sender
immediately, in response to the said letter, he had sent a
compliance note which was at page 32 of the file, bearing his
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signatures, same is Ex.PW19/A. Alongwith the said letter, he had
enclosed two enclosures, one of the same is on the record, which is
at page 33, bearing his signatures which is Ex.PW19/B. He also
deposed, as per annexures, the licence fee was calculated in
respect of shop no.85 as Rs.298/ per month w.e.f 01.04.93,
similarly for shop no.405 it was Rs.291/ w.e.f 01.04.93.50. PW20 is Sh.G.C.Bhandari, who has deposed that at the
relevant time in the year 1994, he was working as Joint Secretary
and Financial Advisor in the Ministry of UD, on deputation from his
parent cadre Ministry of Defence, Department of Defence Account.
His duties were to make budget for the Ministry , give financial
advise on policy matters.51. He deposed that one file no.L&DO/PSIV/PolicyII/83
(D4) had come to him with noting dated 05.05.94 already
Ex.PW15/A made by Mr.V.P.Sharma, who was Dy. Director, who
had marked the said file on 05.05.94 to Director (Finance) and in
turn on 06.05.94 Director (Finance) marked the file to him i.e. JS
(Finance), his noting dated 09.05.94 bears his signatures at point A,
which is already Ex.PW15/DA. He had recorded his noting regarding
disposal of government shops and he suggested that a reasonable
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method for disposal of government shops be evolved, unless such a
policy is evolved if at all, all shops have to be given on licence fee
basis for a period of 23 years. He also referred to the notings of
then MOS dated 19.01.94, which is Ex.PW9/B.52. PW21 is Mr.K.D.Singh. He has deposed that he joined
Directorate of Estates in 1989 and remained posted there till 2006 in
various Sections like Marketing, Vigilance, General, Quarter
Allotment TypeIII Section. After seeing the attested photocopy of
seizure memo (D14) (original kept in CC No.15/11 chargesheet no.
3 as document D61), he stated that the same was bearing his
signatures, vide which he handed over certain documents as
mentioned in the said seizure memo which is Ex.PW21/A. He
further deposed that he handed over on 10.03.97 photocopy of
attested copies of comparative statement (D9) in respect of tenders
called for various shops / stalls of the Directorate of Estates which
was opened on 24.02.97. They contain the impression of his
signatures at point A in respect of attesting the same. Copy of the
same duly attested by him has been kept in CC No.15/11
chargesheet no.3, same is mark PW21/1.53. He further deposed that after the directions of Hon'ble
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Supreme Court, they had called the tenders for various shops / stalls
and rates would have been quoted therein, on this basis
comparative statements were prepared by the Directorate of
Estates.54. He also deposed that he handed over the photocopy of
Manual of Office Procedure regarding licenses in respect of
markets, office memorandum no.17017/4/77W2 dated 24.3.79 and
also the Manual of Office Procedure regarding management of
Central Government Market in Delhi/New Delhi revised upto
01.02.92 of Directorate of Estates which are on record as D6 to
D8. He had also attested these documents and handed over the
same to IO which was kept in CC No.15/11 chargesheet no.3,
bearing his official stamp and signatures. Same are Ex.PW21/B1
and B2.55. PW22 is Harcharanjit Singh. He deposed that he
remained posted as Director of Estates from 1991 to April 1997. At
that time Sh.S.Patnayak was Director of EstatesII, Smt.Sheila Kaul
was the Minister of UD, Sh. P.K.Thungon was posted as MOS.
After seeing the document D6 Ex.PW21/B1, Ex.PW21/B2 (D8)
and Ex.PW11/C (D7), he stated that these allotments pertain to the
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period when he was Director of Estates, Nirman Bhawan, New
Delhi. There were some shops in various government colonies,
which were lying vacant and had not been disposed off despite
efforts by the government by calling tenders, thereafter reducing the
reserve price by 50%, during this period, the then UD Minister
proposed that these shops may be given on economic licence basis,
allotment of shops on economic licence fee was a normal method of
allotment prior to 1994, even the rules notified in 1992 gave power
to the Minister to relax the rules and to make allotments.56. He further deposed that there was some orders in the
year 1979, under which the allotment of shops were to be made only
on economic licence fee basis, thereafter in year 1992, rules were
modified to bring in a provision for disposing the shops by calling
tenders, but the tendering process was not successful, as the
reserve price was very high. He further deposed that normally, the
Minister should record the reasons for relaxing the rules, but no
specific reason was mentioned in the rules.57. He was shown file D3 regarding allotment of shops at
Hanuman Road Market in favour of Tulsi Balodi. He stated that he
had handled this file, the file contains his notings on page 2 at point
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C, which is Ex.PW22/A, bearing his signatures. He was also shown
allotment file (D2) regarding allotment of shop no.85 at P.G.Market,
near Chandni Chowk in favour of Smt.Krishna. He stated that he
had also handled said file, his notings at page 18 bears his
signatures, same is Ex.PW22/B and the file (D2) also contains his
notings at page 19 and his signatures at point X(original of these
documents are in file D4), the said noting is Ex.PW22/C. He also
deposed that the file D2 also contains his notings on page 20 to 22
also having his signatures, same is Ex.PW22/D.58. The witness was also shown file D1 regarding allotment
of shop no.405 at P.G.Market, Delhi in favour of L.Tsering. He also
deposed that he had dealt with this file and the file contains his
notings, the original of these notings are already on record in file D4
and same is Ex.PW22/B to Ex.PW22/D. The witness after going
through the file D4 identified his notings and signatures at page 18,
19, 20 to 22 which are already Ex.PW22/B to Ex.PW22/D.59. PW23 is Sh.Ram Pal Joshi. He has deposed that he
knew Mr.P.K.Thungon and he also knew father of Lakhpa Tsering,
as also Lakhpa Tsering, who is son of P.K.Thungon's wife's brother.
After seeing the file D1, pertaining to shop no.405, P.G.Market, he
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stated that the said licence deed Ex.PW12/A bears his signatures at
point C, the indemnity bond was also witnessed by him at point A,
which is Ex.PW23/A.60. PW24 is Mr.V.K.Malhotra. He deposed that in the year
1998 he was posted as Joint Secretary in the Ministry of Home
Affairs, during said tenure his duties were to process the cases sent
by CBI for sanction of prosecution. He proved the sanction order
dated 23.04.98 u/S 197 Cr.P.C against Smt.Sheila Kaul and
P.K.Thungon u/S 120B r/w Section 409 of IPC and Section 13(2)
r/w Se.13(1)(c) and (d) of PC Act, which is Ex.PW24/A.61. PW25 is O.P.Khanna. He has deposed that he
remained OSD to MOS, UD Mr.P.K.Thungon in the year 199293.
As OSD his duties were to attend phone calls, visitors, appointments
and another jobs assigned by Minister. He had been shown the file
D1 regarding the shop no.405, P.G.Market, relating to L.Tsering,
which contains the notings dated 06.12.93 (already Ex.PW10/DA),
19.01.94 already Ex.PW10/DB, 12.05.94 and 16.05.94 (marked as
Mark PW25/1 and 25/2). He was also shown the transfer certificate
of L.Tsering issued by DPS, R.K.Puram, New Delhi, which he
attested under his signatures and official stamp, same is
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Ex.PW25/A.62. PW26 is Sh.G.B.Singh. He has deposed that he was
holding the charge of Dy. Director (Office & Market) from November
1993 till he left the Directorate of Estate in June, 1995 on promotion
to Ministry of Home Affairs. He had been shown file D4 pertaining
to L&DO/PSIV/PolicyII/83 (PartI), on seeing the noting dated
06.12.1993 at page no.16/N which was of P.K.Thungon as MOS
(UD), he identified his signatures and deposed that vide the said
note, P.K.Thungon had recommended for allotment of shops to
Sh.Kessang Tsering, Sh.L.Tsering and Mrs. Krishna. The file was
marked by P.K.Thungon to UD Minister, the then Smt.Sheila Kaul,
who also put up note that there are some more VIP references
pending, who then further marked the file to Director of EstateI,
who further marked the file to him and he again marked the file to
MarketI Section on 20.12.93.63. He further deposed that AD Market of Market SectionI
put up a note pertaining to as per the directions of then UDM
indicating shops no. 85, 325 and 405 in Lajpat Rai Market and in
para 4 of Section note, there is also a reference of policy of
allotment of these shops on auction basis where ownership rights
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have been granted. The file was then marked to him, he further
endorsed the said note on 24.12.93 under his signatures and same
is Ex. PW26/A.64. He identified the signatures of DEI Sh. Harcharanjit
Singh on the noting dated 27.12.93. He further deposed that he had
received the file on 04.5.94 from the then AD (Market) upon which
he recorded his noting dated 04.5.94 Ex. PW26/B (page 26/N)
indicating the policy for allotment in the markets where ownership
rights have already been granted by the government. He further
deposed that since allotment of shops in these markets to any
person was departure from general policy, he recommended that
concurrence of the Finance Division may be obtained in the first
instance before the matter is further processed.65. He further deposed that he endorsed the note dated
30.5.94 Ex. PW26/C of the then AD (Market) Sh. P Bhardwaj and
identified his signatures, who also mentioned that no decision had
been taken regarding revised license fee w.e.f 01.4.91. He also
made his noting Ex. PW26/D in File D4 at page 31, wherein he had
asked the Executive Engineer (License Fee) CPWD to indicate the
formula in respect of shop nos. 85 and 405, Pleasure Garden
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Market, New Delhi.66. He had been further shown notings dated 12.5.94 and
16.05.94 of the then MOS (UD) P.K.Thungon at point A which are
already Ex.PW9/C and Ex.PW9/D. Vide these notings, he had sent
a UO note Ex.PW26/D to CPWD on 16.05.94 as the MOS and UDM
decided to allot the shop no.85 and 405 at Pleasure Garden Market,
Delhi.67. He had been further shown file Mark D2 pertaining to
shop no.85, P.G.Market, Delhi allotted to Smt.Krishna which
contained a licence deed for the aforesaid shop and the deed was
executed and signed by him as Dy.Director of Estates and also
bears his signatures. The deed is already Ex.PW8/A.68. He had been further shown the allotment letter dated
03.6.94 Ex. PW26/E in respect of shop no.85, P.G.Market, Delhi
allotted to Smt.Krishna and he identified his initials on the same. He
had been further shown letter of allotment dated 03.6.94 Ex.
PW26/F pertaining to shop no. 405, P.G Market relating to L.Tsering
which bears his initials at point A. He had also seen licence deed
already Ex.PW12/A which bears his signatures at point D on all five
pages. He had been shown the indemnity bond already Ex.PW23/A
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in respect of shop no.405, P.G.Market relating to Lakhpa Tsering.
He identified his signatures at point B.69. He had been further shown letter of allotment dated
31.5.94 Ex. PW26/G in respect of Smt. Tulsi Balodi which was
issued under his initials . He had been also shown Licence Deed Ex.
PW13/A in respect of Smt. Tulsi Balodi regarding allotment of shop
no. 2, Hanuman Road, New Delhi which was executed and signed
by him at point A. He had been also shown indemnity bond already
Ex.PW14/A in respect of shop no.2, Hanuman Road in the name of
Smt.Tulsi Balodi which bears his signatures at point C.70. PW27 is Sh. Sansar Pattanayak. He has deposed that
while working as Director of Estates (DEII) in the Directorate of
Estates from 1993 to 1995, he was looking after the allotment of
residential accommodation from TypeI to TypeIV, office
accommodation and markets. He further deposed that there was no
provision for relaxation in the license fee in the manual Ex.
PW20/B1 and in the event of creation of vacancies in respect of
shops and stalls, tenders used to be called.71. After seeing office memorandum Ex. PW11/C dated
24.3.1979 regarding policy to be adopted for development and
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construction of shopping centers in various Government colonies he
stated that construction was to be undertaken by CPWD and there
was a policy in existence according to which the shops were to be
auctioned by L&DO and there was no provision for reservation in
auction, there was a provision for fixing minimum reserve price for
auction. He further deposed after seeing document (D8) which is a
copy of Manual of Office Procedure regarding management of
Central government markets in Delhi revised upto 01.02.1982 issued
by Directorate of Estates(D8) is Mark PW25/A, as per same, the
vacancies were to be filled as a rule, by inviting tenders from the
public and it also provided for 22.5% reservation for SC/ST
candidates.72. After seeing his note dated 23.8.94 Ex. PW25/A under
his signatures in file D5 at page N/138 and N/139 regarding the
status of shops/stalls allotted or lying Vacant in Lodhi Road Complex
(LRCI), BKS Marg and Hanuman Road, thereafter marked the file to
DEI Sh. Harcharanjit Singh. He deposed that the rules were
approved by A1 Smt. Shiela Kaul, then UDM on 26.12.94 and he
had recorded a note Ex. PW25/B for obtaining legal advise on the
issue of charging monthly rent as well as ground rent. Note Ex.
PW9/A by A2 P.K Thungon was marked to UDM and finally
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received in his office on 20.12.93 and the file came to him on 24.12
93, he had marked a portion of the note as 'X' as relevant on the
noting dated 23.12.93 Ex. PW26/A put up by official of MarketI
Section. His noting dated 24.12.93 is Ex. PW 25/C. Thereafter he
further marked the file to DEI and the file again came back to him
on 04.5.94 from Sh. G.B Singh, DD (O&M) on which he further made
an endorsement Ex. PW27/D "for Concurrence/Comments" under
his signature at point B and marked the file to DS(F)/Minister of UD.73. He further deposed that Smt. Shiela Kaul vide noting Ex.
PW27/E at page no. 24/N in File D5 under her signatures allotted
shop no. 405 and 85 in P.G market to L.Tshering and Smt.Krishna.
After noting Ex. PW9/C and Ex. PW9/D, the file came to him from
Additional Secretary and draft allotment letter was put up in respect
of L.Tshering and Smt.Krishna upon which he put up his note at
place Mark X dated 16.5.94 Ex. PW27/F under his signatures. He
also made a noting Ex. PW27/G under his signatures on 16.5.94 in
relation to intimation of allotment and issuance of License deed and
indemnity bonds along with letter intimating Licence fee.74. He also made a noting Ex.PW10/DC and processed the
application of Tulsi Balodi and a noting dated 30.3.94 was made in
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respect of the said application, wherein he gave position of allotment
of shops in three different markets including Hanuman Road and it
was ascertained from L&DO that a proposal for auctioning vacant
shops/stalls based on actual FAR had been prepared and was being
put for approval of UDM, which proposal envisages dispensing with
the system of economic license fee. The case was thereafter put up
for consideration/orders and was marked to DE.75. PW28 is Sh.K.Padmanabhaiyah. He has deposed that
in 1993 he was posted as Secretary in the Ministry of UD. After
seeing the file no.L&DO/PSIV/PolicyII/83 (PartI) (D4) he deposed
that he had recorded a note dated 27.12.93 at page 19 of the
notesheet portion, the said notings also bears his signatures, the
same is Ex.PW28/A. His noting was due to visit of Director of
Estates regarding policy/sale relating to allotment of shops or stall.
After seeing his noting dated 18.1.94 at page 21 (wrongly typed,
actually it is at page 23 in file D4) of the noting portion, he stated
that same bears his signatures and is Ex.PW28/B. The purpose of
noting was that the Minister of State had earlier remarked that there
was no policy when he was asking for allotment to certain persons,
so he wanted to check whether there was any policy for either
leasing or selling shops, if so, how is lease amount fixed, how the
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people are selected for allotment etc., he reviewed the note put up
by the Director and gave his advise in the note of 18.01.94.76. PW29 is Sh. Purshottam Bhardwaj. He has deposed
that in the year 1994, he was posted as Assistant Director (Market
I), in the Directorate of Estates. After seeing the file D4, he said that
he had dealt with the said file during his tenure. After going through
the file he stated that there was a note dated 27.04.94 at page 25 of
the noting portion which is already Ex.PW15/B which he had put for
fixation of license fee regarding shop nos.85 and 405, P.G.Market,
in the name of Smt.Krishna and L.Tsering respectively, also bearing
his signatures. He had marked the file to DD(M) for orders . The
order of UDM is at page 24 of the above noting, at that time policy
for allotment of shops in respective area was through public auction
by calling tenders.77. The said file again came to him on 23.05.94 through
Directorate of Estates Sh.S.Patnaik for issuance of allotment letters
for the above shops in the name of above persons. However, it was
marked to DD(M), but he recorded a note which is at page 34 of the
noting portion of the file bearing his signatures. The noting is
Ex.PW29/A. Vide this noting, he had recorded that "letters have
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been issued from respective files. We have also written to
Executive Engineer (L.F.) to intimate the present L/F in respect
of these shops." Thereafter, file was marked to dealing hand
Sh.Ram Chander, after his noting the file was again put up before
him on 30.05.94, wherein he made a note at page no.35 of the
noting portion which is already Ex.PW26/C having signatures. He
also recorded "no decision has yet been taken to intimate the
revised licence fee w.e.f 01.04.91", thereafter he again submitted
the file on 30.05.94 for orders of DD(M) with regard to the licence
fee to be charged.78. After seeing the file D1 pertaining to shop no.405 and
allotment letter dated 03.06.94 in favour of L.Tsering, the same is
Ex.PW26/F, on the said allotment letter he has also signed.79. He was also shown the file D2 pertaining to shop no.85,
P.G.Market and allotment letter dated 03.06.94 in the name of
Smt.Krishna which is Ex.PW26/E, on the said allotment letter he had
also signed. Further, after seeing the file D4 and page no.20 of the
correspondence portion, as per the chart mark PW29/1 there were
22 VIP references for allotment of shops in different areas to
different people.RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 46 of 194
4780. PW30 is Sh.P.C.Sharma, retired SSP, who had carried
out the investigation of this case. He has deposed regarding the
investigation carried out by him during the course of present case.81. PW31 is Sh.D.K.Singh, he had assisted PW30
Sh.P.C.Sharma, who was the main IO of this case and he has
proved one seizure memo Ex.PW34/A (D61) dated 22.10.96 having
his signatures. He had also collected certain documents mentioned
therein and also recorded statements of certain witnesses.82. PW32 is Sh.N.P.Singh. He during the relevant period
19931996 was working as Addl.Secretary and then, thereafter
Secretary, Ministry of Urban Affairs & Employment, Dept. Of Urban
Development. As Addl.Secretary he used to deal with matters
concerning Directorate of Estates, L&DO including matters relating
to policy and coordination. He further deposed that during the
relevant time 19941995 Minister's discretionary allotments for
government quarters as well as shops were limited to 20% of the
total number of cases in a year, however ceiling was never adhered
to and Ministers were making allotments in most cases based on
discretion. In this situation, it was open to the administration to take
up the review of the policy once again and this came up only at the
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 47 of 194
48
time when the Hon'ble Supreme Court had taken cognizance of
such issues. The suggestions made by him in various notes of his
relating to the policy were against the above background and to
minimize the loss to the government. The Ministers were exercising
the discretion to reject or approve the applications for allotments
including those of shops. At that time UDM was Smt.Sheila Kaul
and MOS was Mr.P.K.Thungon.83. PW33 is Sh.J.P.Singh. He was posted as Secretary to
the Government of India in the year 1994 pertaining to Ministry of
Urban Development and Housing. After seeing the pages 30,31 and
32 of file D4, he stated that at page 30, there is a note of N.P.Singh,
then Addl.Secretary which he had approved as Secretary, Ministry
of Urban Development. The said note is Ex.PW20/DA having his
signatures.84. PW34 is Sh.R.Vishwanathan. He has stated that during
the relevant period, July 1992 to December 1992, he was dealing
with the administrative matters pertaining to L&DO office and Lease
Administration of the properties held by L&DO office. After seeing
the file D11 pertaining to allotment of shops, he stated that this file
was originally dealt with by Directorate of Estates. This file was
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 48 of 194
49
received by him because a decision was taken to transfer the
subject matter of allotment of shops to L&DO office under the control
of Land Division of Ministry of UD. He had received this file on
11.09.91. He made notings dated 11.09.91, 30.10.91, 14.01.92 and
17.01.92 on page 3 and 4, the said notings are collectively
Ex.PW34/A, having his signatures (original notings are in RC
48(A)/1996, CC 15/2011 chargsheet no.III as D84).85. After that he made a note regarding the disposal of
shops with the L&DO office and need for review of policy taken in
1979 in view of the fact that the shops with L&DO continued to
remain vacant for a long time, for this purpose a note for the cabinet
was required to be submitted for decision, the above noting dated
06.03.92 at page 5 of file D11 was shown to the witness, which he
identified having his signatures, the said noting is Ex.PW34/B.86. After his noting, he marked this file to DS(L), who further
marked this file to L&DO for comments. The comments of L&DO is
already Ex.PW11/A. Thereafter, the file was forwarded to DS(L),
who marked the file to JS(UD). He marked the file to Addl.Secretary
(UD), who marked the file to Secretary (UD). Thereafter, the file
was sent to the MOS for Urban Development and thereafter to the
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 49 of 194
50
Minister for Urban Development. The file was received by him
through the same channel on 04.08.1992. He identified his
signatures on notings at page 17 and 18 and the notings are
Ex.PW34/C (colly.).87. He further deposed that a policy decision was taken in
1979 to transfer the vacant shops in the government colonies to the
L&DO for disposal through public auction. For the purpose of
holding auctions, a minimum reserve price was to be fixed in
consultation with the finance division of the Ministry. Accordingly,
auctions were held on the basis of the reserve prices fixed in
consultation with the finance division. The auctions were not
successful, since there were no interested bidders. One of the
reasons cited for disinterest of the bidders was the high reserve
price. As there was no progress regarding disposal of shops for
more than a decade, it was decided to transfer the shops to local
bodies, i.e. DMC and NDMC. It was also decided that the transfer
could be made in consideration of the cost of the land and
construction of the shops. There was no positive response from
local bodies also, as they felt that they could not afford to pay the
cost of the shops. In these circumstances, the modalities for
disposal of shops were required to be worked out and a policy
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 50 of 194
51
decision to do so was required to be taken at the highest level. It
was proposed to approach the Cabinet with a note containing
alternative feasible proposals for disposal of shops. For this
purpose, L&DO was asked to submit the detailed comments, as
inputs to the draft note for the Cabinet.88. After seeing file D5, he stated that his noting is at page
112 which bears his signatures and said noting is Ex.PW34/D
(original noting is in RC 48(A)/96, CC 15/2011, charge sheet no.III
as D2). As per this noting, there were about 100 shops, 130 stalls
and 23 open platforms, awaiting disposal, because of the vacancy of
the shops, there was a proposal to refix the reserve price and
different alternatives for fixation of reserve price were required to be
examined in detail, based on the inputs from the L&DO. Thereafter,
the file was marked to US(L1), then it was marked to JS(UD), as
DS was on leave, who marked it to DS(L) after discussion. After a
note of DS(L), he had again marked it to him.89. After seeing file D5, he stated that page no.116 had his
note which bears his signatures, the said noting is Ex.PW34/E.
(original noting is in RC 48(A)/1996, CC 15/2011 chargsheet no.III
as D2). Vide this noting, he had mentioned the details of reserve
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 51 of 194
52
price for different shops, based on three different options for fixation
as suggested by L&DO.90. He further deposed that thereafter, there were different
representations by individuals, some of them were recommended by
various VIPs. He made a noting on page 22 of file D11 which bears
his signatures and said noting is Ex.PW34/F. (original noting is in
RC 48(A)/1996, CC 15/2011 chargsheet no.III as D84). After this
noting, he marked the file to Director (L) for sending it to the Minister
through proper channel. He further proved his notings dated
03.08.93, 17.09.93, and 02.05.94 at page 23 to 25 as Ex.PW34/G
(colly.) which bears his signatures.91. After seeing file D11 he stated that his noting dated
06.09.94 at page 33 bears his signatures and said noting is
Ex.PW34/H. (original noting is in RC 48(A)/1996, CC 15/2011
chargsheet no.III as D84).92. PW35 is Narendra Nath Singh. He has deposed that in
month of June, 1996 he was posted as Superintendent of Police,
ACB, New Delhi and he had ordered for registration of FIR in this
case. He had seen the copy of FIR which is already Ex.PW30/A
bearing his signatures at point A. He also deposed that he recorded
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 52 of 194
53
statement of Sh.Girish Bhandari.93. After the completion of prosecution evidence, statement
of accused persons u/S 313Cr.P.Cwere recorded separately, in
which the entire incriminating evidence appearing against the
accused persons was put to them. The defence of accused
P.K.Thungon (A2) with regard to the incriminating evidence against
him was as under
It's a false case against me. There was no
clear cut or cogent policy for disposal of
vacant shops. The modalities for auction of
shops had not been finalized. The shops could
not be auctioned earlier on account of high
reserve price. Even after reducing the reserve
price by 50%, the shops could not be auctioned
for want of bidders. Since the reserve price
was not finalized as such the tenders could not
be invited. The shops were thus lying vacant
for a very long time calling for extensive repair
and was causing loss of revenue to the
Government. The reserve price for auction or
inviting tenders had not been finalized till late
1995. One of the modes for allotment was by
leave and License basis which was adopted by
earlier Ministers also as there was a provision
for making exceptions in the matter of
allotment if the circumstances so warrant.In the present case the allotments were
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 53 of 194
54made with the concurrence of the finance
division and based upon the suggestions of
Directorate of Estates. The allotments were
made in view of very sound reasons.At the time of allotment, the payment of
economic license fee was being followed which
proposal was approved by Sh. G.B Singh and
Sh. S Patnayak.There was a specific stipulation in the
License deed that the allottees will pay the
charges as may be decide by the Government
from time to time with retrospective effect and
the license could be revoked by the
Government without assigning any reasons
with a notice of 30 days. There was no
pecuniary loss caused to the Government. This
was to safe guard the interest of the
Government and in view of the fact that the
policy in this regard was not finalized.I have not abused my official position or
entered into any conspiracy with Smt. Shiela
Kaul or the allottees for the allotment of shops
to L Tsering who is a scheduled Tribe and Smt.
Krishna who is a widow of a freedom fighter.
The file of Smt. Tulsi Balodi never came to me.
I am innocent.94. Similarly, the defence of accused L.Tsering (A3) with
regard to the incriminating evidence against him is as under
I am innocent, I have been dragged in this case
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 54 of 194
55
for the last about 19 years and suffering
mentally, morally, financially and I was driven
back to my state and is now doing service
under the private industry/shop and earning my
livelihood and living hand to mouth and I have
to look after my wife and two school going
children. I am the only bread earner of my
family and I have to come all the way from
Arunachal Pradesh about 2000 K.M away from
Delhi and being a tribal and ST and suffering for
the last about 19 years. Atleast one week time is
needed for coming to Delhi to attend this case
and have to live without any employment and
without any remuneration from my employer.
Sometimes I have to borrow money from my
parents/friends/relatives in order to look after
myself and my family. I need sympathetic
consideration of my case taking into
consideration of my suffering and being a
tribal(ST), I am leading such a miserable life
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 55 of 194
56
and I was only student when I applied having no
means to look after myself financially. The
application for allotment of shop was made
through proper channel and as soon as I was
asked to surrender the same I did so
immediately and now I am living in my village
and leading a miserable life. I have no place in
Delhi to live to bear the expenses of this
expensive city. I am living in some Dharamshala
and any free lodging, boarding whichever is
available. I did not conspire with anybody.95. That of accused Smt. Krishna (A4) is as under
I am innocent. I am a widow and a totally
illiterate person. I can neither read nor write
English or Hindi. After the death of my
husband, Sh.Karamveer Singh Man who is the
elder brother of my husband used to take care
and look after my family. I have no means of
livelihood. I have never met Mrs. Sheila Kaul. I
do not know anything about this case. I have
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 56 of 194
57
been falsely implicated.96. However, none of the accused persons chose to lead
evidence in defence.97. I have heard Ld.counsels for accused persons
Sh.S.P.Minocha, Sh.Gurdial Singh and Sh. M.P.Singh and Ld.PP for
CBI Sh.V.K.Ojha and Spl.PP for CBI Sh.J.S.Wadia and perused the
record.98. Prosecution has relied upon following judgments in
support of its case1.Vinayak Narayan Deosthali Vs Central Bureau of
Investigation2015 Cri.L.J.15542. Runu Ghosh Vs.CBI Crl.A.482/2002, P.Rama Rao Vs
CBI Crl.A.509 andCrl.A.536/2002 Sukh Ram Vs CBI.99. Ld. defence counsel for accused P.K.Thungon has firstly
argued that the very sanction accorded in the present caseu/S 197Cr.P.C is defective, as firstly PW24 Mr.V.K.Malhotra was not
competent to accord sanction and it is nowhere being revealed in his
sanction order Ex.PW24/A that any material for according the
sanction was produced before him on the basis of which the opinion
for giving the sanction was arrived at. It is also argued that it is
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 57 of 194
58
contrary to the reason that the sanction of a Minister of State and
that of Union Cabinet Minister has been accorded by an officer of
rank of Joint Secretary, as nowhere in the sanction order it has been
stated that the said Joint Secretary was giving the sanction on
behalf of Government of India or the President under any delegated
rules or legislation. Therefore, he has argued that the sanction order
is invalid and accused P.K.Thungon (A2) is liable to be acquitted on
the said ground alone, as the same goes to the root of the
prosecution case.100. He has further argued that there was no clear cut policy
for disposal of vacant shops, the modalities for auction of shops had
not been finalized. The shops could not be auctioned earlier on
many occasions due to very high reserve price, even after the
reduction of reserve price by 50%, the shops could not be auctioned
for want of bidders, since the reserve price could not be finalized,
therefore tenders could not be invited, even otherwise the shops in
question were lying vacant for a long time, calling for extensive
repairs which was rather causing great loss of revenue to the
Government. The reserve price for auction or for tenders could not
be finalized till late 1995. Further, one of the modes for allotment of
shops was by lease and licence basis which was adopted by earlier
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 58 of 194
59
Ministers, as there was a provision for making exceptions in the
allotments, if the circumstances so warranted. As per office
memorandum of 1979, clause3 and clause12 of the Manual of
Office Procedure regarding management of Central Government
markets in Delhi / New Delhi revised upto February 1, 1992.101. He further argued that in the present case, the
allotments were made with the concurrence of Finance Division
based on suggestions of Directorate of Estates. At the time of
allotment, the method of payment of economic licence fee was
followed, which proposal was approved by Sh.G.B.Singh and
Sh.S.Patnayak, two of the prosecution witnesses examined in this
case. He has further argued that there was a specific stipulation in
the licence deed that the allottees will pay the charges as may be
decided by the government from time to time with retrospective
effect and the licence could be revoked by the government without
assigning any reason with the notice of 30 days. Consequently,
there was no pecuniary loss caused to the government, rather this
was to safeguard the interest of the government and in view of the
fact that the policy in this regard has not been finalized. Therefore,
he argued that he has not abused his official position or entered into
any conspiracy with (A1) Smt.Sheila Kaul (since deceased
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 59 of 194
60
proceedings abated) or any other allottees for the allotment of shops
to accused L.Tsering (A3), who is a Scheduled Tribe and
Smt.Krishna (A4), who is a widow of a freedom fighter. He stated
that the file of (A5) Smt.Tulsi Balodi(since deceased proceedings
abated) never came to him. He has, therefore argued that no
offenceu/S 13(1)(c)or (d) of thePC Actis made out against the
accused P.K.Thungon (A2).102. He has further argued that even no offenceu/S 409IPC
is made out, as there was no entrustment of any property i.e. the
shops to the accused P.K.Thungon nor he can be said to have
dominion over the said shops nor it is the allegation of prosecution
that he dishonestly misappropriated or converted the said property
to his own use. He has further argued that no conspiracy is made
out, as all the allottees were differently situated and no evidence has
come on the record that there was any agreement amongst the
allottees with (A2)P.K.Thungon for the allotment of shop(s) nor any
meeting of mind in this regard, therefore he has argued that accused
P.K.Thungon deserves to be acquitted on all counts.103. Further, Ld. counsel for accused L.Tsering(A3) has
argued that accused is a Schedule Tribe, coming from Arunanchal
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 60 of 194
61
Pradesh. He has been unnecessarily dragged into this case and
when he had applied for the shop, he had no financial means to look
after him. The application for allotment of shop was made through
proper channel. As soon as he was directed to surrender the same,
he did so immediately and there was no conspiracy whatsoever with
anyone. Same is the argument of accused Smt.Krishna (A4), who
has argued that she is a widow and a totally illiterate person, who
can neither write nor read, after the death of her husband,
Sh.Karamveer Singh Maan who is the elder brother of her husband,
used to take care and look after her family, she had no means of
livelihood, she never met (A1)Smt.Sheila Kaul (since deceased
proceedings abated) and she has been falsely implicated.104. On the other hand, Ld. Public Prosecutors for CBI have
rebutted the abovesaid arguments of the defence and have argued
that the sanctionu/S 197Cr.P.C was a legal and valid sanction. The
same had been accorded by PW24 in the delegated capacity after
going through the entire material placed before him. In any case,
the said sanction had been granted by him by the order and in the
name of Government of India in such delegated capacity and
therefore, he was competent to accord sanction as well as the fact
that there was sufficient material on the record to grant sanction
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 61 of 194
62
which had been accorded in accordance with law in view of the
materials placed before the sanctioning authority. In any case, they
have argued that no sanction even otherwise was required, as it is
settled law that committing conspiracies or committing offence(s) is
no part of duty of public servant regarding which there is umpteen
number of judgments available.105. They have further argued that it is admitted case that at
the relevant time of allotment of shops, accused no.2 P.K.Thungon
was Minister of State (UD), who had made a proposal for allotment
of shops in favour of L.Tsering (A3), who is the son of his real
brotherinlaw i.e. he is the son of real brother of his wife and
another allotment was made in favour of accused Smt.Krishna (A4),
who was the sisterinlaw of the common friend of the Minister of
State i.e. Mr.P.K.Thungon (A2) and (A1) Smt.Sheila Kaul, UDM
and the third allotment was made, though not on the proposal of
A2, but was recommended directly by the Directorate of Estates
and was approved by UDM was that of Smt.Tulsi Balodi (A5),
whose husband PW16 P.B.Balodi was working at the relevant time
in the personal staff of the then Prime Minister of India. He has
argued that all the allotments were made flouting the norms of
allotment prevalent at that time, which as per the office
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 62 of 194
63
memorandum of year 1979 was to be alloted by way of open public
auction or by inviting tenders and allotments of shops no.405 and 85
in P.G.Market i.e. Lajpat Rai Market, which is situated opposite Red
Fort near the commercial hub of Chandni Chowk was in clear
violation of the notes made by the other Senior Officers of the
Ministry, who had clearly opined that such a course was against the
norms and the office memorandum in force and the said allotments
should only be made by following the said norms, failing which the
government will suffer substantial loss of revenue due to the
strategic location of the said shops.106. There was even proposal to allot these shops in other
newly constructed Central Government Markets which were
available, rather the said shops in said Central Government markets
situated in government colonies were also allotted around the same
time or few years back on tender basis. He has further argued that
any departure from the established norms in terms of office
memorandum of 1979 and the Manual of Office Procedure regarding
licences in respect of the markets issued by Directorate of Estates
had to be on the basis of reasonable classification and no reasons
for exercising the discretion had been indicated in the notes of
approval. It is also argued that it is settled law that the Courts can
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 63 of 194
64
examine the administrative discretion, if the same is totally arbitrary,
unfair, unreasonable and is contrary to the Principles of Fairness
underArticle 14of the Constitution of India.107. They have also argued that the allotments in the present
case were clearly flouting all the established norms and were marred
by favouritism and nepotism, as there were many other persons
similarly situated as A3 and A4 to whom the allotments were made
without calling any tenders or following the established procedure of
public auction, which would have fetched great amount of revenue
for the government. Therefore, they have argued that A2, while
holding the office of Minister of State had obtained pecuniary
benefits for A3 and A4 in abuse of his such position and such act
was without any public interest. They have further argued that
prosecution had lead sufficient evidence on record to prove
conspiracy between A1, A2, A3, A4 and A5, which is generally
the inference to be drawn from the evidence adduced and no direct
evidence is generally available. They have also argued thatSection
409IPC is also made out in the present case, as the shops were
under the custody / entrustment of A1 and A2 or they can be said
to have dominion over the said shops which they allotted in blatant
violation of established norms by abusing the procedure i.e. the OM of 1979,
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 64 of 194
65
therefore they have argued that all the accused persons are liable to be
convicted.108. I have gone through the rival contentions and gone through the
materials.109. The origin of the present case emanates from the note on page 16
of file D4 Ex.PW9/A which is a note dated 06.12.93 by the Minister of State,
UD, which was A2 Mr.P.K.Thungon at that time. The said note is as under
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 65 of 194
66110. In the said note, A2 is himself writing that there has
been a proposal that the shops should be disposed off by public
auction. But the procedure of public auction could be adopted, if the
activity of L&DO was a regular one and since, the shops were falling
vacant occasionally due to cancellation etc., therefore it would be
futile to go through the entire auction process. He also noted that
no shop had been alloted to SC/ST candidates, though there was
a reservation of 22.5% in such matters and some applications
were received by him from SC/ST candidates pertaining to
L.Tsering and Kessang Tsering and it was also found that 2 shops
in Lajpat Rai Market were lying vacant i.e. bearing no.12 and 13
which may be alloted to them. Further, shop no.85, 325 and 405
were also lying vacant in the same market and there was another
case of Smt.Krishna who was a widow having two school going
children, having no means of livelihood and she may be alloted
either of the above shops. On 08.12.1993 the matter was put up
before then UDM Smt.Sheila Kaul, who stated that there were
some more VIP references pending. DEI may put up (remaining
portion not legible).111. Thereafter, on page 17 on file D4, there is a note
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 66 of 194
67
dated 23.12.93 by MarketI Section by Sh.Vijay Kumar, the said
note has been proved by PW26 Sh.G.B.Singh as Ex.PW26/A
who has endorsed the said note, which is reproduced as under 112. In the said note, it is noted that the MOS, UD had
recommended to UDM for allotment of shops in Lajpat Rai Market to
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 67 of 194
68
Smt.Krishna, however "it may be mentioned that any shop falling
vacant in markets where ownership rights have been granted, will be
alloted on auction. In markets where ownership rights have not been
granted and shops continue to be on licence fee basis, whenever any
shop falls vacant, it has to be alloted by calling tenders" and on page
18 of file D4 it is noted that at present there are four markets where
ownership rights have already been conferred under the Directorate of
Estates and in all these markets, if any shop falls vacant, it can only be
disposed off through open auction/competent tenders. Even the new
markets which have come up in various government colonies, the shops
are to be alloted on auction/tender basis. The requisite note prepared by
Sh.Harcharanjit Singh, Director who has been examined as PW22, is
reproduced as under
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 68 of 194
69113. Then, at page 19 and 20 of file D4 there is a note by
then Secretary (UD) Mr.K.Padmanabhaiah which is Ex.PW28/A,
same is reproduced as under
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 69 of 194
70
Thereafter, on the same page there is a note by PW11
G.V.Krishna Rau (DS, L&WS) dated 31.12.93 which is Ex.PW 11/B,
the same is reproduced as under 114. In the said note, the said officer writes the detailed policy history
starting from OM dated 24.3.79 which was only basis for disposal of shops for
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 70 of 194
71
the L&DO in the government colonies, therefore the new shopping centers are
to be disposed off, as per the said note by public auction by L&DO, but since
the reserve price was very high, therefore no bidder came forward and there
was a proposal to refix the reserve price which has been submitted separately
from the Lands Division. Regarding the shop no.85 it was stated that even the
reserve price for this shop had not been fixed, therefore shop no.85, PG Market
had not been disposed off by auction.115. Thereafter, the file went to the Director of Estates PW22
Harcharanjit Singh, who made notings at page nos. 20,21,and 22 in the file D4
which he has proved in his testimony as Ex.PW22/D(exhibit mark inadvertently
not put on the said noting). The same is reproduced as under
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 71 of 194
72
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 72 of 194
73116. In the said note, the Director of Estates gives the detail
history of allotment in the markets, where the ownership rights were
conferred on original allottees, as per the cabinet decision of 1978,
one of them was Lajpat Rai Market (P.G.Market). It was also
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 73 of 194
74
discussed that the policy for allotment and management of
shopping centres in Central Government colonies was reviewed, it
was decided on 1979 with the concurrence of Finance Ministry
that the shopping centres constructed in newly constructed
Central Government colonies will be disposed off by the L&DO
through open auction which amounts to their disposal on
leasehold basis. It is also stated in the said detailed note that in
1991, they were considering the proposal for regularization of
shops in P.G. Market including shop no.85 which was vacated in
1981, it was decided that L&DO may be requested to go ahead
with the disposal of this shop as per their norms and procedures,
in other words any shop falling vacant in the markets where
ownership rights have been conferred is to be transferred to L&DO
for auction. It was also stated in the said note that the shop no.85,
325 and 405 situated in Lajpatrai market (PG Market) are located
in a market where ownership rights had been conferred, these
may be auctioned by L&DO.117. Thereafter, the matter went again to the Secretary,
UDM Mr. K.Padmanabhaiah, who has made another noting dated
18.1.94 on page 23 of file D4, same is reproduced as under
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 74 of 194
75118. In the said note, the Secretary, UD noted that in the P.G. Market
(the one under consideration), the procedure was to allot shops on perpetual
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 75 of 194
76
lease basis. For this purpose L&DO was required to auction the shops falling
vacant by fixing reserve price, but since the reserve price was very high, hence
not many persons participated in the auction, however the reserve price was
being lowered substantially to 1/4th of the earlier reserve price and he also
opined that there was no reservation for SC/ST which should be extended in
future, but there are 22 persons whose names have been recommended by
various VIPs for allotment of shops and they may also apply / participate in the
auction, if they so desire. Thereafter, the matter went again to the table of A2
who was then MOS (UD), who made a detailed note dated 19.01.94 Ex.PW9/B
in the same file at page 24, same is reproduced as under
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 76 of 194
77119. In the said note, he differed from the noting of
Secretary, UD dated 18.1.94 and recommended for allotment
of shops to L.Tsering and Kessang Tsering and also to
Smt.Krishna on the ground that the above persons were
hailing from NorthEast of India, who were feeling alienated so
as to integrate them into main stream and Smt.Krishna was a
very poor lady who should be alloted shop on compassionate
basis. Thereafter, UDM recommended the allotment of shops
no.405 and 85 to L.Tsering (A3) and Smt.Krishna (A4)
respectively vide note Ex.PW27/E.120. Vide notes on page 25 and 26 on file D4 made by
Mr.G.B.Singh PW26, who was working as Dy.Director (Office
and Market) in the Directorate of Estates, the said notes on
page 25 is Ex.PW15/B which was proved by V.P.Sharma,
Desk Officer and the endorsement of Mr.G.B.Singh is at page
26 of the said noting file which is Ex.PW27/D, it also bears the
signatures of PW27 Sansar Patnayak. The said notes are
reproduced as under
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 77 of 194
78
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 78 of 194
79121. The said notes at page 25 and 26 also gives the history
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 79 of 194
80
of allotment and the policy of public auction regarding these two
shops alloted in PG Market to L.Tsering (A3) and Smt.Krishna (A4)
stating that in PG Market where ownership rights have been
conferred, the shops are to be disposed off by public auction and not
by leave and licence basis. It was also noted on page 26 that in the
past, UDM had made allotments to different persons in newly
constructed markets in government colonies like Lodhi Road
complex, DIZ area, Hanuman Road on leave and licence basis on
payment of economic licence fee. The allotments of these shops
were made as per the orders of UDM after referring the matter to the
Finance Division. It was for the first time that UDM had made
allotment of shops in a rehabilitation market where the government
had already conferred ownership rights.122. It was also stated that the economic licence fee of
rehabilitation markets have not been revised since 1964, although in
other markets, licence fee has been revised thrice after 01.04.85
and the UDM had also not indicated the rate of licence fee to be
charged. It was also stated that four shops as mentioned in the said
note at page 26, as above had been allotted on the last few years on
tender basis, therefore as per the existing policy, the two shops in
question were also to be alloted on the basis of public auction and
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 80 of 194
81
allotment of any shop in these markets to any other person would be a
departure from public policy involving financial implications and loss of revenue,
therefore concurrence of Finance Division may be taken.123. Thereafter, the matter was sent to Finance Division and vide
detailed note dated 05.05.94 (running into 3 pages) at pages 27,28,29 of file
D4 which are Ex.PW15/A, the opinion of the Finance Division of the Ministry of
UD was taken, which is reproduced as under
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 81 of 194
82
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 82 of 194
83
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 83 of 194
84124. In the said note also, the detailed policy regarding
the allotment of shops in the ownership markets including the
PG Market was discussed based on OM dated 24.03.79
stating that any allotment of the shops in the said markets
may be disposed off by way of public auction, but since there
was an exception clause at para 3 of the said OM dated
24.03.79 that some exceptions could be made "if the
circumstances so warrant" and the said exception was
tested in 1989, when the then UDM approved allotment of 15
shops in Hanuman road and other markets which was also
objected by then Joint Secretary (Finance) stating that the
wholesale exception could make it a rule than exception.125. Regarding the allotment of two shops in question, it
was reiterated that the existing policy was that the shops
which were allotted to certain individuals with the approval of
UDM, as referred to above, were also to be disposed off
through public auction, since the shops were situated in a
market where ownership rights had been conferred and also
even if, examined from the purely financial point of view, PG
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 84 of 194
85
Market was situated at the heart of Delhi, just opposite Red
Fort and it was hub of commercial activity and because of
this, if the two shops were to be disposed off through public
auction it will earn for government quite a handsome amount
of revenue. He also stated that some other shops as
mentioned at page no.26 above were put on tender basis
which generated quite a good amount of revenue for the
government and therefore, if the two shops in question were
to put to tender, it could fetch quite a sizeable revenue for the
government, since these two shops are high potential entities
from the financial point of view.126. Thereafter, the matter was again put up before
Joint Secretary and Finance Advisor in the Ministry of
UD Sh.Girish Bhandari PW20, the detailed note at page
no.29 and 30 in file D4 has been proved as Ex.PW15/DA
also bearing signatures of PW20 at point A, the same is
reproduced as under
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 85 of 194
86
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 86 of 194
87
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 87 of 194
88127. In the said note it has been noted that the
Director of Estates has mentioned there is a departure
from existing policy, one solution could be to allot shops
in any other areas where 15 shops were alloted in 1989,
same may be considered. In the alternative, if it is not
so decided, the rates of licence fee on which these
shops are to be alloted be worked out and the said shop
be given on licence fee basis for a limited period of 2 to
3 years.128. Thereafter, on page 30,31 and 32 of file D4
the matter went to Sh.N.P.Singh, who was working as
Addl. Secretary, Ministry of Urban Affairs and
Employment, Dept. of UD, the detailed note made by
him as above has been proved as Ex.PW20/DA bearing
his signatures at point X dated 11.05.94, same is
reproduced as under
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 88 of 194
89
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 89 of 194
90
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 90 of 194
91129. He also noted that as per the existing policy, the two
shops were to be sold by public auction after fixing the reserve price,
however since the grounds for exception have already been
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 91 of 194
92
examined by MOS, UD at page 24 mentioned as above, and the matter has
also been examined by the Finance Division, therefore the shops may be
alloted to the persons mentioned in the order on leave and licence basis for a
maximum period of 5 years nor ruling out the option of public auction or tender
in due course. Thereafter, the Secretary UD as well as MOS, UD i.e. Accused
no.2, who vide noting on page no.33 Ex.PW9/C in file D4, reproduced as
under
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 92 of 194
93130. Vide said noting MOS (UD) ordered for allotment of shop
no.405 and 85 respectively to L.Tsering (A3) and Smt.Krishna (A4)
on regular basis on payment of licence fee. It was also stated that
the ownership may be transferred to them after the reserve price
had been worked out. The UDM also agreed for the allotments and
therefore, it was ordered that allotment order be issued and
possession be given after the licence fee is fixed vide endorsement
dated 16.05.94 Ex.PW9/D and vide endorsement dated 16.05.94 by
PW27 Sansar Patnayak Ex.PW27/F, it was ordered that draft
allotment letters be issued in favour of these persons.131. The defence of the accused person is that, as per the
OM No.17017/4/77W2 issued by the Government of India, Ministry
of Works & Housing dated 24.03.79 Ex.PW11/C, which OM was with
regard to policy to be adopted for development and construction of
shopping centers in various government colonies in Delhi, clause2
of the said OM is the general rule whereas clause3 is the exception
thereto vide which Minister had the discretion to allot the shops by
exercising exception clause, which reads as under 2. Keeping these factors in view, the general
question of development and construction of
shopping centres in various Govt. colonies
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 93 of 194
94
and Community Centre Complexes has been
considered in consultation with Lands
Division and Finance Division and it has been
decided that the following proceeding should
be followed in the matter of
development/construction/management of
shopping centres in various Govt. colonies
and Community Centre Complexes /
Commercial Centres in the land under the
control of the Central Government :(1) Construction of Convenient/Local
Shopping Centres:(a) Sanctioned Schemes: Govt. have
sanctioned construction of one
Convenient Shopping Centre each in
BadarpurMehrauli Road area and Sadiq
Nagar; the project estimate for
construction of 15,300 houses in Delhi
already sanctioned, also provides for
construction of Convenient/Local
Shopping Centres in various colonies
where quarters would be constructed. In
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 94 of 194
95
these cases, the construction would be
undertaken by the CPWD and, thereafter,
the shops would be sold by auction by
the Land and Development Officer, after
fixing minimum reserve price in
consultation with the Finance Division.3. While the above would be the general
policy to be adopted in future, exceptions
may be made if the circumstances so warrant.132. They have also relied upon Clause 3 (a)(i) and the
exception clause 12 of the Manual of Office Procedure Ex.PW12/B2
regarding management of Central Government Markets in
Delhi/New Delhi, revised upto February 1, 1992 issued by the
Directorate of Estates, which are also reproduced as under 3.(a)(i) All vacancies shall be filled, as a
rule, by inviting tenders from the public.12. Relaxation of Rules
The Government may, for reasons to be
recorded in writing, relax all or any of the
provisions of the rules/instructions governing
the policy of allotment, regularisation,
restoration of shops etc., in Central
Government Markets managed by the
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 95 of 194
96
Directorate of Estates.133. It was also argued that as per the Manual of Office
Procedure regarding management of Central Government Markets
in Delhi/New Delhi, revised upto February 1, 1992 issued by the
Directorate of Estates, the Minister was fully competent to make
exceptions by recording the reasons in writing and in this case there
was cogent reasons for exercising the said discretion, as (A3)
L.Tsering was Scheduled Tribe candidate from NorthEast, and the
people from NorthEast had to be given representation so as to
integrate them in the main stream. Regarding other candidate
Smt.Krishna (A4), the discretion was exercised, as she was a
widow having very poor economic condition, and the said discretion
had earlier also been exercised in the year 1989 by the then UDM
who had similarly alloted 15 shops in different markets situated in
various government colonies to different people on the basis of
abovementioned OM/Manual. Therefore, the said discretion had
also been earlier exercised and no fault had been found in the
same, therefore the exercise of discretion in this case in favour of
these two persons cannot be faulted.134. Further, the defence counsels have relied upon the
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 96 of 194
97
noting made by PW11 G.B.Krishna Rau, dated 24.04.92 who was
working as Land and Development Officer in file D5 page 106, 107
and 108, same is Ex.PW11/A1, the said notings are reproduced as
under
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 97 of 194
98
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 98 of 194
99135. In the said detailed notes at page 106, he has stated that it
was decided in 1979 that shopping centers constructed in newly
constructed central government colonies be disposed off by public auction,
but the same could not be done due to high reserve price, in the
meanwhile there was a proposal to transfer the shops to local bodies, but
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 99 of 194
100
the same also could not materialize, thereafter there was a move for
refixation of the reserve price and in the year 1989, some shops were
disposed off on licence fee basis on the recommendations of the then
UDM.136. Thereafter, at page 114, 115 and 116 of file D5 there is a
note by R.Vishwanathan, Desk Officer dated 14.12.93 which is
Ex.PW34/E, same is reproduced as under
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 100 of 194
101
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 101 of 194
102
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 102 of 194
103137. There is also a note at page 117 to page 122
Ex.PW11/G by the same officer which is reproduced as under
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 103 of 194
104
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 104 of 194
105
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 105 of 194
106
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 106 of 194
107138. In the aforesaid note, he has also stated regarding
the fixing of reasonable reserve price for disposal of shops
situated in government colonies and the markets constructed
by CPWD were transferred to L&DO for auction, but there
was no response from bidders due to very high reserve price,
thereafter there was a proposal to refix the reserve price even
reducing the rates by 50%. He also stated about the
allotment of 15 shops on licence basis by then UDM in year
1989 and there was a proposal for disposal and maintenance
of shopping centers mentioned in his note that same be
transferred to the local bodies and in the detailed note he
stated that the proposal regarding fixation of revised price
should be revisited and it should be made reasonable to
attract prospective bidders and it was also to be kept in mind
that the shops were lying in dilapidated condition requiring
extensive repairs by the CPWD.139. There is another note at page 123 to 126 dated
15.02.94 in file D5 by Sh.K.Dharmarajan same is
Ex.PW10/B, which is reproduced as under
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 107 of 194
108
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 108 of 194
109
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 109 of 194
110
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 110 of 194
111140. In the said note, he had given the detailed background for the
disposal of shops constructed in government colonies which were to be
disposed of by the L&DO, as per the 1979 OM and regarding the fact that
Director of Estates was managing 32 markets, four of them were rehabilitation
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 111 of 194
112
markets and that in 1979 decision was taken that in future, shops will not be
given on licence fee basis, but be given on lease basis by public auction and the
fact that the reserve price being very high could not attract bidders and the re
fixation of reserve price.141. Further, though A5 Smt.Tulsi Balodi expired and proceedings
against her stood abated on 21.08.2014, but the manner in which the allotment
was made to A5 needs to be discussed. In this regard, a note date 30.03.94
has been proved as Ex. PW10/DC which also bears the signatures of PW27
Sansar Patnayak at point A. The page no.1 and 2 of file D3 is reproduced as
under:
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 112 of 194
113
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 113 of 194
114142. It is apparent from the said note that an application was
received from A5 Tulsi Balodi for allotment of shop in market of
Hanuman Road, though as per the existing policy, the said shop had
also to be alloted by following the process of public auction after
fixing the reserve price vide OM dated 24.03.79, however a
favourable note was put up for allotment of shop in her favour vide
endorsement Ex.PW22/A of the same date i.e. 30.03.14. The matter
was put up before Secretary, who approved the matter on same
day. The UDM Smt.Sheila Kaul (A1) approved it on 09.04.1994.
Thereafter, shop no.2, Hanuman Road Market was alloted to her
without even getting any concurrence from the Finance Division or
getting the matter examined by other officials of the UD Ministry
including Joint Secretary and Director of Estates etc. It is clearly
mentioned in the said note itself that it had been ascertained from
L&DO that a proposal for auctioning the vacant shops /stalls based
on actual FAR covered has been prepared and was put up for
approval of UDM, yet the said note was approved by the UDM on
09.04.1994.143. Relying upon the aforesaid notings, the Ld. defence
counsels have argued that the shops in question were lying vacant
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 114 of 194
115
for a long period of time and no bidder had come forward for auction
due to high reserve price and most of the shops were lying in a
dilapidated condition requiring extensive repairs on behalf of CPWD.
Since, the process of reserve price was undergoing change,
therefore (A2) P.K.Thungon was fully justified in allotting the shops
to (A3) L.Tsering and (A4) Smt.Krishna. In fact, such a discretion
had already been exercised by previous UDM, as per which 15
shops were alloted to different persons in year 1989, as per the
exception clause3 of the OM dated 24.03.79. Therefore, it is stated
that there is nothing wrong in discretion exercised by A2
P.K.Thungon.144. The Ld. defence counsels have relied upon the cross
examination of various witnesses examined by the prosecution in
support of their contention to prove that the discretion in the present
case has been validly exercised. For instance, in the cross
examination of PW10 K.Dharmarajan, who had proved the notings
in the file D5 as Ex.PW10/A to Ex.PW10/F. He in his cross
examination has stated that the policy prevailing in 1994 was the
policy which was formulated in 1979 by way of OM. It was correct
that as per clause3 of the OM, there were exceptions which were to
be made to the general policy, if the circumstances so required. He
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 115 of 194
116
in his further crossexamination also stated that in the note
Ex.PW10/DB contained in file D1, it was correct that in the said
note he recommended allotment by exercise of clause3 of the OM,
as the applicant belonged to NorthEast and they should be
integrated with the main stream. Similarly, in the crossexamination
of PW11 G.B.Krishna Rau, who has proved his notings Ex.PW11/A
to Ex.PW11/G. He has stated that it was correct that as on 08.04.94
there was no revised reserve price fixed for the shops that were
lying vacant and to dispose off these shops by public auction. It was
correct that the shops had been lying vacant for 8 to 10 years and
the revision of the reserve price for the disposal of the shops was
under consideration. The earlier Minister had allotted some shops on
licence basis. He further deposed that as per his note dated
05.05.93 Ex.PW11/D, it was earlier suggested to decide as a policy
to dispose off all shops on licence fee basis.145. Similarly, PW20 G.C.Bhandari in his cross examination
has stated that in order to keep the auction of the shops, he
recommended that the shops may be alloted to the persons on
leave and licence basis for a maximum period of 5 years.
Sh.N.P.Singh further observed in his note that "Directorate of
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 116 of 194
117
Estates does not seem to have any clear cut or cogent policy
which would facilitate quick disposal of government property
like shops, kiosks, stalls to the deserving persons either on
basis of auction or by tenders". He further deposed that shops in
question had been lying vacant for more than 15 years, as there was
no bidder. In his further cross examination he stated that the
physical condition of the shops had deteriorated which had
necessitated the disposal of shops immediately. He further deposed
that Sh.Krishna Rau had suggested in his note that "considering
that these shops remained unalloted, unutilized for almost 10
years, in some cases they do require extensive repairs, this
work is undertaken perhaps that is likely to cause more
avoidable delay and this additional cost to be incurred on
repairing most of the shops will have to be added to the reserve
price".146. Thereafter, PW22 Harcharanjit Singh in his cross
examination has stated that it was correct that the Minister had
approved category of persons for relaxation falling under the
category of widows, handicap, unemployed graduates, SC/ST and
other compassionate grounds. It was correct that the allotments
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 117 of 194
118
made vide files D1, D2 and D3 were covered under these
categories approved.147. Thereafter, PW26 Sh.G.B.Singh, who was working as
Dy.Director (Office and Market Section) under Directorate of Estates
in his cross examination has stated that the matter had been
referred to the Finance Division and the licence fee was charged in
accordance with the directions of Finance Department. It was
correct that an undertaking was given by the allottees that the
licence fee and other charges would be payable by them, as may be
decided from time to time by the government and the same would be
chargeable retrospectively. It was correct that it was the condition of
the licence, it could be revoked by the government at any time
without stipulation of any period and to this effect an undertaking
was also given by the office.148. It was also correct that there was a provision in the
manual for allotment of shops that the rules may be relaxed by the
competent authority in appropriate cases after giving reasons. It is
correct that the note by Mr.P.K.Thungon, then MOS (UD) dated
06.08.93 Ex.PW10/A contains the reasons for relaxing the rules for
allotment of shop to the candidates mentioned therein. The matter
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 118 of 194
119
for allotment of rules was examined by Sh.N.P.Singh, then
Addl.Secretary vide his note dated 11.05.94 Ex.PW20/DA, who also
observed that Directorate of Estates does not seem to have any
clear cut or cogent policy which would facilitate quick disposal of
government property either on the basis of auction or by inviting
tender.149. He further stated in cross examination that it was correct
that in note Ex.PW15/A, it is recorded that the said exception was
tested in 1989, when the UDM had approved allotment of 15 shops
in various markets. He further deposed that it was correct that till he
left the Ministry of UD, the issue relating to charges including the
ground rent was not finalized and it is also reflected so in his note
dated 19.05.95.150. Similarly, PW27 Sansar Patnayak in his cross
examination has stated that A2 P.K.Thungon, who was then
working as MOS (UD) had recommended the allotment of shops to
(A3)L.Tsering and (A4) Smt.Krishna on compassionate ground by
exercising exception clause. He further deposed that he was aware
that the reserve price for auction or inviting tenders for allotment of
shops had not been fixed even till late 1995.RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 119 of 194
120151. Similarly, PW38 Sh.K.Padmanabhaiah, who was
working as Secretary, UD at the relevant time of allotment of two
shops to A3 and A4 has deposed in his crossexamination that the
MOS (UD) had recorded earlier that there was no well defined policy
in matter of disposal of shops. It was correct that in his note, he had
recorded that earlier also vacant shops were put for auction, but
since the reserve price was too high, the same could not be
auctioned and the auction was not successful and during his tenure
the reserve price was not finalized.152. Thereafter, PW29 Purshottam Bhardwaj has also stated
in his crossexamination that it was correct that there was an
exception clause in the office manual for allotment of shops which
was then prevailing. There was also reservation for SC/ST in the
matter of allotment of shops by inviting applications from these
reserved categories for allotment to be made by draw of lots and
that A2 had recommended the allotment of shops to A3 and A4 on
the basis of exception clause.153. Similarly, PW34 Sh.R.Vishwanathan has deposed in his
cross examination that it was correct that modalities for disposal of
the shops were required to be reviewed in view of high reserve
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 120 of 194
121
price, but the same could not be finalized till he worked there. It was
correct that the reserve price of the shops was reduced by 50% after
the unsuccessful auction in the first instance and still there were no
bidders at the reduced price. He also recorded in his note dated
14.12.93 Ex.PW34/E that most of the shops are lying in dilapidated
condition requiring extensive repairs, the local bodies had asked for
the shops free of cost. Lastly, he stated that the policy for allotment
of shops was under review after the failure of previous auction, but
the same could not be finalized till he remained there.154. Based on the cross examination of the aforesaid
prosecution witnesses, the Ld.defence counsels have argued that
what kind of sin (A2) P.K.Thungon has done, as the shops in
question were lying vacant for 1015 years, which were rather
causing loss to the State Exchequer, as the said shops required
extensive repairs and despite repeated attempts for auctioning these
shops, no bidder came forward due to very high reserve price. Even
the efforts to reduce the reserve price did not attract any bidders and
even the local bodies were ready to accept the said shops free of
cost only. He has further argued that the previous UDM in 1989 had
exercised the exception clause3, as per the OM of 1979 and had
allotted 15 shops to different persons and in the present case also,
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 121 of 194
122
the said exception clause had been exercised by A2 after going
through the entire material on record. Even the matter had been
examined by all the concerned higher officials of the UD Ministry
and it was also having the financial concurrence, therefore there
was no loss to the government, rather the said allotment was in
public interest and the exercise of discretion was validly made, as
per clause3 of OM and manual of Office Procedure for
management of Central Government Markets Ex.PW21/B2.155. Before proceeding further it would be relevant to find out,
if there is any relation between A2, A3, A4 and A5. In this regard,
PW8 Sh.Inder Kumar has deposed that they were five brothers and
one of them was Karamveer Maan and another was Kishan Maan,
who has died and accused Krishna (A4) is the wife of his brother
Late Sh.Kishan Maan. IO PW30 Retired SSP P.C.Sharma has
deposed in his cross examination that name of a common friend of
Minister of State and Minister, to whose sisterinlaw, the allotment
was made was Karamveer Singh Maan. The said assertion made
by the IO in his cross examination has not been controverted by the
Ld. counsel for accused Krishna. Now, reverting to another accused
(A3) L.Tsering, PW12 Mr.Deshpal Singh has deposed that he
knew (A2) P.K.Thungon, as he was officially maintaining the
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 122 of 194
123
computers at the office and residence of Ministers and Member of
Parliament. He also deposed that accused (A3) L.Tsering is the
son of brotherinlaw (i.e. brother of wife of Mr.P.K.Thungon), the
said fact has not been controverted in the cross examination of this
witness. Therefore, it is established that (A3) L.Tsering is closely
related to A2 P.K.Thungon.156. Though, (A5) Smt.Tulsi Balodi has expired and
proceedings against her stood abated vide order dated 21.08.14,
however it would be pertinent to point out her status in the society
and the reason as to why allotment was made to her as well in this
case, which was made on the same day on which the application
was received with utmost alacrity. In this regard, her husband, Prem
Ballabh Balodi has appeared as PW16. He stated that he joined
Ministry of Home Affairs as Peon and in the year 1991, he joined
the personal staff of the then Prime Minister of India and accused
Tulsi Balodi (A5) was his wife and his wife was alloted a shop at
Hanuman Road. In his cross examination he also stated that he
was attached with Mr.Narsimha Rao, when he was Home Minister,
but was not personally attached with him. He used to visit his
residence as and when such a duty was assigned to him, after he
became Prime Minister, he was deputed to his office by the Ministry
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 123 of 194
124
of Home Affairs not by Sh. Narsimha Rao. He also stated that he
knew Smt.Sheila Kaul (A1) (deceased), who used to come to the
residence of Mr.Narsimha Rao, when he was the Prime Minister.157. From the aforesaid testimonies, it is established that all
the accused persons A3, A4 and A5 had connections with big and
mighty persons of the lutyens zone, as A3 is closely related to A2,
A4 was related to one Karamveer Singh Maan, who was a close
friend of A2 and A1 Smt.Sheila Kaul, whereas deceased A5 was
the wife of a peon PW16 who was working in the personal staff
attached with the then Prime Minister of India Sh.Narsimha Rao.
Now in this scenario, it has to be seen, whether the discretion which
has been exercised by A1 (deceased) and A2 in allotting the shops
to A3, A4 and A5 (deceased) by using their powers, as per
exception clause3 in the OM of 1979 Ex.PW11/C or as per
clause12, as per the Manual of Office Procedure regarding
management of Central Government Markets in Delhi/New Delhi
revised upto February 1, 1992 which is Ex.PW21/B2, has been
validly exercised by giving sound reasons for exercising
administrative discretion or the same is totally unfair, arbitrary,
malafide, violatingArticle 14of the Constitution of India.RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 124 of 194
125158. In this regard it would be useful to quote from the
Administrative Law, Seventh Edition, S.P.Sathe, Lexis Nexis
Butterworths Page(s) 398 and 399 as under
Government largesse is public property and
government cannot dole it out arbitrarily. In the
distribution of largesse, such as a contract,
advertisement, licence, allotment of government land
or a privilege, the discretion must be exercised in
public interest and in accordance with the
Constitution. Arbitrary disposal of largesse violates
art 14. All people must have equal opportunity of
being considered for such largesse and there should
be neither any favouritism nor nepotism in its
allotment. Although the government is free to decide
whom to allot largesse to, unlike a private person, it
cannot allot the largesse as it likes.Discretion in this regard must be so used as to
give equal opportunities to all eligible persons to
compete for it. The State can of course decide the
criteria of eligibility. For example, it may decide to
give certain types of benefits only to cooperative
societies or to give preferential treatment to persons
from the weaker sections of society. Where the
government reserved some units of the Sal forests in
favour of new industrial units set up for extraction of
Sal oil, without making similar reservation in favour
of the old industrial units, the reservation could not
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 125 of 194
126
be held to be discriminatory. The policy was based on
the recommendation of an expert committee, was
supposed to stepup production of Sal seed and was
not likely to incur financial hardship. Such decisions
regarding eligibility must be based on reasonable
classification and should not be arbitrary.However, even if such eligibility criteria are
valid, their application to individual persons also
comes under judicial scrutiny and the court would
strike down a decision if the actual allotment is not in
accordance with such criteria of eligibility or is
otherwise discriminatory. Blacklisting a contractor
from government contracts merely on the ground that
his relations, carrying on similar business were
defaulters in paying sales tax, was held violative of
arts 14 and 19(1)(g) of the Constitution. In the case of
government contracts, where rules required that such
a contract had to be given to persons connected with
arrack trade, giving it to strangers who had no
connection with that trade was held arbitrary.
Allotment of petrol pumps to near friends and
relations of ministers was held invalid. Similarly,
outofturn allotments of houses in Delhi by a
minister were held to be discriminatory. Where a
contract for bottling of arrack was given to a chosen
few without inviting quotations or tenders, the court
struck it down. Similarly, a contract awarded at high
rates without floating public tenders, thus causing
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 126 of 194
127
loss to the public exchequer, was held to be arbitrary
and, therefore, void.Although the government is free to decide who
to give an advertisement to, a guideline saying that
they may not be given to newspapers that were rabid
or abusive, or 'raging fanatical' was held to be vague
and therefore could result in discrimination.InR.D. Shetty Vs International Airport
Authority(1979) 3 SCC 489, 503; AIR 1979 SC
1628, 1635 Bhagwati J said
It is a well settled rule of administrative law that an
executive authority must be rigorously held to the
standards by which it professes its actions to be
judged and it must scrupulously observe those
standards on pain of invalidation of an act in
violation of them.The learned judge further said in
(1979) 3 SCC 489, 505 that
The Government is still the Government when it acts
in the matter of granting largesse and it cannot act
arbitrarily. It does not stand in the same position as
a private individual.In M/s Kasturilal Vs Jammu and
Kashmir AIR 1980 SC 1992; Also seeSterling
Computers Ltd. Vs M&N Publications Ltd.RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 127 of 194
128(1993) 1 SCC 445, the Supreme Court once again
reiterated the principle that where the government
was dealing with the public, whether by way of
giving jobs or entering into contract or granting
other forms of largesse, it could not act arbitrarily at
its sweet will. The limitations on the government's
power were twofold: (i) it must give equal
opportunities to all to compete for such a contract or
largesse; and (ii) the contents of the contract should
not be detrimental to the interests of the State. These
limitations are applicable with regard to persons or
parties with whom it can contract as well as to the
terms of the contract.159. Further from the various judgments rendered by the
Hon'le Supreme Court from time to time, the law in this regard has
been crystallized, relevant extract of following judgment is
reproduced as under
InChaitanya Kumar and Others Vs. State of Karnataka
and Others, (1986) 2 SCC 594
Under the Karnataka Excise(Bottling of Liquor) Rules,
as they stood at the relevant time, bottling licences could
only be granted to persons already connected with the
liquor trade. But neither the advertisement confined its
invitation to such persons only, nor the Exise Commissioner
took into account that criterion while recommending that 8
persons for the contract. The Exise Commissioner excluded
from consideration for the award of the bottling contracts
those persons who were eligible for the grant of bottling
licences and recommended such person as were not eligible
for the grant of bottling licences under the rules.This was
an usual, wilful and perverse way of exercising the power of
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 128 of 194
129
distributing State largesse. Even if the award of the bottling
contracts was not at the expense of the exchequer, there
could be no question that what was done was the
distribution by the State of favours loaded with bounty by
way of enabling the recipients of the favours to earn
enormous profits. Moreover, the recommendation of the
Excise Commissioner to award the bottling contracts to the
eight 'chosen' persons was not wholly consistent with the
very principle on which he had excluded as many as 119 out
of 131 applications from consideration. The almost
surreptitious manner in which Rule 3 was amended
subsequent to the filing of some of the writ petitions also
appears to give an indication regarding the anxiety of the
Government to favour the chosen ones with the bottling
contracts. Even if the notification dated November 23, 1984
containing the draft amendment of Rule 3 was published on
November 23, 1984, there was hardly any time for anyone to
make any objections since only five days time was given.
The so-called policy decision and the principle purported to
be enunciated by the Excise Commissioner were a mere
pretext designed to eliminate all except the chosen.Further, inShivsagar Tiwari Vs. Union of India and
Others, (1996)6 SCC 558 it was held as under:6. The CBI has since inquired into the matter in some
detail and has by now submitted 4 interim reports.
According to the CBI, orders of allotment in respect
of the shops/stalls in question were passed by Smt.
Shiela Kaul, the then Minister of Urban Development,
and "all the 6 shops have been allotted by her to her
own relatives/employees/domestic servants of her
family members and family friends. She has allotted 2
shops to her 2 gransons, one shop to the maid
servant of her son, Sh. Vikram Kaul who is residing in
Dubai, one shop to handloom manager of the firm
owned by her son-in-law and another shop to a close
friend. One shop has been allotted to the nephew of
the Minister of State, Sh. P.K.Thungon. While making
allotments in respect of stalls, she has allotted most
of stalls to the relatives/friends of her personal staff
and officials of Dte. of Estates". The CBI has also
reported that Smt. Sheila Kaul had made ten different
categories of persons as the basis for deciding
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 129 of 194
130
allotments, but even this categorisation was not
adhered to while making allotments. The further
findings are: (1) "Many other organisations/persons
who had also applied for allotment and no reasons,
whatsoever, were assigned for non-allotment of
shops/stalls to them"; and (2) "At the time of
discretionary allotments made by Smt. Shiela Kaul in
1993 and 1994 persons who were relations of her
personal staff were considered and allotted shops"7. In the order dated 19.07.1996 this Court noted that a
regular case underSections 120-B,420,468/471IPC
andSection 13(2)r/wSection 13(1)(d)of the
Prevention of Corruption Act, 1988, has been
registered against Smt. Shiela Kaul and her
Additional Private Secretary Rajan S Lala and Others.
The order of that date has also noted about various
other steps taken, which include issuance of show
cause why allotments of shops/stalls should not be
cancelled. It was desired that the notices be served
within a week and the Estate Officer, after considering
their replies, if any, place a report before the Court
within four weeks.8. Such a report was filed under the affidavit of Sh.
Harcharan Jeet Singh, Director of Estates, which was
taken up for consideration on 06.09.1996. The
affidavit of the Director has stated that from 1994
onwards 52 shops/stalls had been sanctioned by the
then Minister of Urban Development(Smt. Shiela Kaul)
out of which 7 shops were allotted by Smt. Kaul
before she had approved the policy of 1994 and the
remaining 45 shops were allotted after the policy of
1994. In the affidavit the gist of objections allotted
after the policy of 1994. This court thought it
appropriate to give an opportunity of hearing to all
these persons before any action was taken. A
direction was, therefore, given to the Director to issue
individual notices to the 52 persons(wrongly
mentioned as 42 in the order) to be personally
present in the court or be represented through their
counsel on 27th September. These allottees so
appeared either in person or through counsel and
they were heard. The sum and substance of the
representations of the allottees was that they had
been given an allotment either because of their being
unemployed youths, freedom fighters, handicapped,
members of Scheduled Castes/Scheduled Tribes,
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 130 of 194
131
widow or poverty stricken.9. Question is whether they were selected in
accordance with law, which aspect has its importance
because apparently a large number of other persons
could as well fall within the categories in question
and had applied also. From the report of the CBI it is
clear that the allottees had been selected, not by
following the tender system, as required by the policy
of 1994, but because of their relationship with the
Minister or her personal staff, or being employees or
friends of such persons. If that be so, the allotments
were wholly arbitrary and speak of misuse of power.
The all important question is what is required to be
done to undo the wrong and how the wrongdoer is to
be dealt with within the parameters known to law.10.It would be apposite in this context to refer to the
recent decision of this Court in common cause, aRegistered Society v. Union of India, in which one of
us(Kuldeep Singh J) reiterated the need to act fairly
and justly in the matter of grant of largesses, pointing
out that any arbitrary distribution of national wealth
would violate the law of land, Mention was made of
the judgment inLucknow Development Authority v.
M.K.Gupta, stating that the same approved
"misfeasance in public office" as a part of the law of
the tort. It was pointed out that public servant
become liable in damages for malicious, deliberate or
injurious wrongdoing.160. This is the case in which the allotments of shops /
government quarters were set aside by Hon'ble Supreme Court as
arbitrary allotments and as per the directions of Hon'ble Supreme
Court, the FIR was registered against the accused persons including
A1 and A2.161. The Hon'ble Supreme Court in the following latest case,
pertaining to 2G Scam Spectrum held as under:
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 131 of 194
132
Natural Resources Allocation, IN RE Special ReferenceNo. 1 of 2012, (2012) 10 SCC 1146. To summarise in the context of the present Reference,
it needs to be emphasised that this Court cannot conduct a
comparative study of the various methods of distribution of
natural resources and suggest the most efficacious mode,
if there is one universal efficacious method in the first
place. It respects the mandate and wisdom of the executive
for such matters. The methodology pertaining to disposal
of natural resources is clearly an economic policy. It entails
intricate economic choices and the Court lacks the
necessary expertise to make them. As has been repeatedly
said, it cannot, and shall not, be the endeavour of this Court
to evaluate the efficacy of auction vis-a-vis other methods
of disposal of natural resources. The court cannot mandate
one method to be followed in all facts and circumstances.
Therefore, auction, an economic choice of disposal of
natural resources, is not a constitutional mandate. We may,
however, hasten to add that the Court can test the legality
and constitutionally of these methods. When questioned,
the courts are entitled to analyse the legal validity of
different means of distribution and give a constitutional
answer as to which methods are ultra vires and intra vires
the provisions of the Constitution. Nevertheless, it cannot
and will not compare which policy is fairer than the other,
but, if a policy or law is patently unfair to the extent that it
falls foul of the fairness requirement ofArticle 14of the
Constitution, the court would not hesitate in striking it
down.147. Finally, market price, in economics, is an index of the
value that a market prescribes to a good. However, this
valuation is a function of several dynamic variables: it is a
science and not a law. Auction is just one of the several
price discovery mechanisms. Since multiple variables are
involved in such valuations, auction or any other form of
competitive bidding, cannot constitute even an economic
mandate, much less a constitutional mandate.148. In our opinion, auction despite being a more
preferable method of alienation/allotment of natural
resources, cannot be held to be a constitutional
requirement or limitation for alienation of all natural
resources and therefore, every method other than auction
cannot be struck down as ultra vires the constitutional
mandate.149. Regard being had to the aforesaid precepts, we have
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 132 of 194
133
opined that auction as a mode cannot be conferred the
status of a constitutional principle. Alienation of natural
resources is a policy decision, and the means adopted for
the same are thus, executive prerogatives. However, when
such a policy decision is not backed by a social or welfare
purpose; and precious and scarce natural resources are
alienated for commercial pursuits of profit maximising
private entrepreneurs, adoption of means other than those
that are competitive and maximise revenue may be arbitrary
and face the wrath ofArticle 14of the Constitution. Hence,
rather than prescribing or proscribing a method, we believe,
a judicial scrutiny of methods of disposal of natural
resources should depend on the facts and circumstances
of each case, in consonance with the principles which we
have culled out above. Failing which, the Court, in exercise
of power of judicial review, shall term the executive action
as arbitrary, unfair, unreasonable and capricious due to its
antimony withArticle 14of the Constitution.162. There is no doubt in view of the aforesaid settled law and
in view of the judgment of Hon'ble Supreme Court inShivsagar
Tiwari(supra), the allotments of shops made by A1 and A2 to
their close relatives, kith and kin of close friends as well as to the
family members of a person serving the then Prime Minister is totally
arbitrary, unfair, unreasonable and violation ofArticle 14of
Constitution of India. There is no reasonable classification or
exercise of discretion in a fair manner, rather it is a case of gross
favouritism and nepotism.163. Regarding the sanction part, as already stated above,
Ld. defence counsel Sh.S.P.Minocha on behalf of A2 P.K.Thungon
has argued that the sanction in the present case had been accorded
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 133 of 194
134
by PW24 V.K.Malhotra vide sanction order dated 23.04.1998 viza
viz (A1) Sheila Kaul (deceased) and (A2) P.K.Thungon. At that
time he was working as Joint Secretary to the Government of India,
Ministry of Home Affairs. He had argued that the said sanction
order is invalid, as firstly, PW24 was not competent to grant
sanction to a Cabinet Minister i.e. (A1) and MOS (A2), no rule has
been stated in the sanction order Ex.PW24/A that he was having any
delegated powers on behalf of Hon'ble President of India to accord
the sanction to prosecute (A1) and (A2) u/S 197Cr.P.C. Secondly,
no material was produced or placed before the sanctioning authority,
therefore the sanction order had been passed without going through
any material, in a mechanical manner without due application of
mind.164. I have gone through the said contentions of Ld. defence
counsel and the contrary arguments of Ld. Public Prosecutor for
CBI. The said sanction order has been proved as Ex.PW24/A.
From the said sanction order, it appears that entire material was
perused by the Sanctioning Authority, as is evident from the detailed
sanction order (running into 6 pages). From the said sanction order,
it is clear that the Sanctioning Authority had gone through the
material documents pertaining to the present case before according
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 134 of 194
135
the sanction. It is also written in the sanction order at page no.6 that
the said sanction had been accorded in the name of Hon'ble
President of India and the Central Government after carefully
examining the material placed before it, had come to the conclusion
that facts and circumstances of the case warrant that
(A1)Smt.Sheila Kaul (deceased) and (A2)P.K.Thungon be
prosecuted for the offence(s) mentioned in the said sanction order.
Therefore, sanctionu/S 197Cr.P.C was accorded to prosecute A1
and A2.165. In his cross examination, PW24 has denied the
suggestion that he had passed the sanction order in a mechanical
manner, rather it appears that the sanction order was passed
independently without being influenced by any draft sanction order
sent by CBI, as he in his cross examination has stated that no draft
sanction order in this case was received from CBI and it was drafted
in his office. He denied the suggestion that he was not competent to
grant sanction for prosecution of A1 (deceased) who was then
working as a Cabinet Minister and A2 who was then holding charge
as Minister of State.166. Even otherwise, for the sake of argument, if it is
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 135 of 194
136
assumed that the said sanction order is not a valid sanction order, as
PW24 was not having either the delegated powers to pass the
sanction order on behalf of Hon'ble President of India or that he was
not competent to do so for various other reasons, even then it was
held in many judgments of the Apex Court that it is not every offence
committed by a public servant which requires sanction u/s 197Cr.P.C. It is no part of the duty of public servant while discharging
his official duty to enter into criminal conspiracy or to indulge in
criminal misconduct. In this regard the following judgments are re
produced as under:1.HHB Gill Vs. The KingAIR 1948 PC 133
A public servant can only be said to act or purport
to act in the discharge of his official duty, if his act is
such as to lie within the scope of his official duty.
Thus, a Judge, neither acts nor purports to act as a
judge in receiving bribe.2.Amrik Singh vs. State of PepsnAIR 1955 SC 309 = 1955 Cr.LJ 865
It is not every offence committed by a public
servant which requires sanction U/s 197Cr.P.C. It is
no part of the duty of public servant while
discharging his official duty to enter into criminal
conspiracy or to indulge in criminal misconduct.3.Hariha Prasad Vs. State of Bihar1972 CrlJ 707
As far as offence of criminal conspiracy
punishable U/s 120 r/w 409IPCand alsoSection 5(2)RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 136 of 194
137
ofPC Act, are concerned, they cannot be said to be of
the nature mentioned insection 197Cr.P.C. To put it
shortly, it is no part of public servant while
discharging his official duties, to enter into criminal
conspiracy or to indulge in criminal misconduct, want
of sanction U/s 197Cr.P.Cis therefore no bar.4.State of Kerala Vs. Padmanbhan JT1999 SC499Sanction for prosecution U/s 197Cr.P.Cis not
required if offences are U/s 409 r/w 120-BIPC; and
accused cannot claim immunity on the ground of
want of sanction, if he ceased to be a public servant
on the day when Court has taken cognizance of the
said offence.5. Prakash Singh Badal Vs. S.O.Punjab
(2007) 1 SCC 1
The offence of cheating U/s 120BIPCr/w S 467,
468, 471IPC, can, by no stretch of imagination, be
regarded as having been committed by any public
servant while acting or purporting to act in discharge
of his official duty. Sanction U/s 197Cr.P.Cis not
required.167. In view of the law laid down in the above judgments, the
act of illegal allotment of shops to A3, A4 and A5 after entering
into conspiracy with each other on behalf of A1 and A2, thereby
causing loss to the State Exchequer without public interest, thereby
causing pecuniary advantage to the said allottees A3, A4 and A5
(deceased), cannot be said to be any part of their official duties that
is to say that there is no nexus between the act and discharge of
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 137 of 194
138
their official duties, as it is no part of their official duties to indulge
into official conspiracy or misconduct, therefore there is no
irregularity or illegality in the sanction.168. Now, it is to be seen whether the said acts of allotment of
shops to A3, A4 and A5 also attract criminal liability, as per the
provisions ofPC ActandIPC. In this regard, it would be relevant to
point out that (A1) Smt. Sheila Kaul (deceased), (A2) P.K.Thungon,
(A3) L.Tsering, (A4) Smt.Krishna and (A5) Tulsi Balodi (deceased)
have been charged u/S 120BIPCr/wSec.409IPC and 13(2) r/wSec.13(1)(c)and13(1)(d)of PC Act. No charges were framed
against the aforesaid accused persons under any of the substantive
offence(s). The charge for substantive offence(s) was only framed
against A1 Smt.Sheila Kaul (deceased) u/S 120BIPCr/wSection
409IPC andSection 13(2)r/wSection 13(1)(c)and13(1)(d)of PC
Act. Since the charges against accused persons who were facing
trial at present namely A2 P.K.Thungon, A3 L.Tsering and A4
Smt.Krishna have only been framed with regard to conspiracy part
as pointed out above, therefore it has to be seen whether any
conspiracy is made out from the facts proved by the prosecution as
discussed above.RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 138 of 194
139169. Regarding conspiracy part, relevant law was discussed
by Hon'ble Supreme Court in the case titledK.R.Purushothaman
Vs State of Kerala(2005) 12 Supreme Court Cases 631, relevant
extract is reproduced as under:11. Section 120AIPCdefines "criminal
conspiracy". According to this Section when
two or more persons agree to do, or cause to
be done (i) an illegal act, or (ii) an act which is
not illegal by illegal means, such an agreement
is designated a criminal conspiracy. In Major
E.G.Barsay V. State of Bombay Subba Rao J.,
speaking for the Court has said :(SCR p.228)
"The gist of the offence is an agreement
to break the law. The parties to such an
agreement will be guilty of criminal
conspiracy, though the illegal act agreed
to be done has not been done. So too, it
is not an ingredient of the offence that all
the parties should agree to do a single
illegal act. It may comprise the
commission of a number of acts."12.InState V. Naliniit was observed by S.S.M.
Quadri, J. at JT para 677: (SCC pp.56869, para662)
"In reaching the stage of meeting of
minds, two or more persons share
information about doing an illegal act or a
legal act by illegal means. This is the first
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 139 of 194
140
stage where each is said to have
knowledge of a plan for committing an
illegal act or a legal act by illegal means.
Among those sharing the information
some or all may form an intention to do an
illegal act or a legal act by illegal means.
Those who do form the requisite intention
would be parties to the agreement and
would be conspirators but those who drop
out cannot be roped in as collaborators
on the basis of mere knowledge unless
they commit acts or omissions from
which a guilty common intention can be
inferred. It is not necessary that all the
conspirators should participate from the
inception to the end of the conspiracy;some may join the conspiracy after the
time when such intention was first
entertained by any one of them and some
others may quit from the conspiracy. All
of them cannot but be treated as
conspirators. Where in pursuance of the
agreement the conspirators commit
offences individually or adopt illegal
means to do a legal act which has a nexus
with the object of conspiracy, all of them
will be liable for such offences even if
some of them have not actively
participated in the commission of those
offences."RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 140 of 194
14113. To constitute a conspiracy, meeting of
minds of two or more persons for doing an
illegal act or an act by illegal means is the first
and primary condition and it is not necessary
that all the conspirators must know each and
every detail of the conspiracy. Neither is it
necessary that every one of the conspirators
take active part in the commission of each and
every conspiratorial acts. The agreement
amongst the conspirators can be inferred by
necessary implication. In most of the cases,
the conspiracies are proved by the
circumstantial evidence, as the conspiracy is
seldom an open affair. The existence of
conspiracy and its objects are usually deduced
from the circumstances of the case and the
conduct of the accused involved in the
conspiracy. While appreciating the evidence of
the conspiracy, it is incumbent on the court to
keep in mind the wellknown rule governing
circumstantial evidence viz. each and every
incriminating circumstance must be clearly
established by reliable evidence and the
circumstances proved must form a chain of
events from which the only irresistible
conclusion about the guilt of the accused can
be safely drawn, and no other hypothesis
against the guilt is possible. Criminal
conspiracy is an independent offence in the
Penal Code. The unlawful agreement is sine
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 141 of 194
142
qua non for constituting offence under the
Penal Code and not an accomplishment.Conspiracy consists of the scheme or
adjustment between two or more persons
which may be express or implied or partly
express and partly implied. Mere knowledge,
even discussion, of the plan would not per se
constitute conspiracy. The offence of
conspiracy shall continue till the termination of
agreement.14. Suspicion cannot take the place of legal
proof and prosecution would be required to
prove each and every circumstance in the chain
of circumstances so as to complete the chain.
It is true that in most of the cases, it is not
possible to prove the agreement between the
conspirators by direct evidence but the same
can be inferred from the circumstances giving
rise to conclusive or irresistible inference of an
agreement between two or more persons to
commit an offence. It is held inNoor Mohd.
Mohd. Yusuf Momin V. State of Maharashtra,
that: (SCC pp.699700, para 7)
"[I]n most cases proof of conspiracy is
largely inferential though the inference
must be founded on solid facts.Surrounding circumstances and
antecedent and subsequent conduct,
among other factors, constitute relevant
material."RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 142 of 194
14315. It is cumulative effect of the proved
circumstances which should be taken into
account in determining the guilt of the accused.
Of course, each one of the circumstances
should be proved beyond reasonable doubt.
The acts or conduct of the parties must be
conscious and clear enough to infer their
concurrence as to the common design and its
execution. While speaking for the Bench it is
held by P. Venkatarama Reddi, J. inState (NCT
of Delhi) V. Navjot Sandhu(p.63) as follows:(SCC pp.69192, para 103)
"103. We do not think that the theory of
agency can be extended thus far, that is
to say, to find all the conspirators guilty of
the actual offences committed in
execution of the common design even if
such offences were ultimately committed
by some of them, without the participation
of others. We are of the view that those
who committed the offences pursuant to
the conspiracy by indulging in various
overt acts will be individually liable for
those offences in addition to being liable
for criminal conspiracy; but, the non
participant conspirators cannot be found
guilty of the offence or offences
committed by the other conspirators.There is hardly any scope for the
application of the principle of agency in
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 143 of 194
144
order to find the conspirators guilty of a
substantive offence not committed by
them. Criminal offences and punishments
therefor are governed by the statute. The
offender will be liable only if he comes
within the plain terms of the penal statute.
Criminal liability for an offence cannot be
fastened by way of analogy or by
extension of a common law principle.170. It has been further held in a case 1999 Cri.L.J.3124
State of Tamil Nadu through Superintendent of Police CBI/SIT
Vs Nalini and others WITH T.Suthenthiraraja alias Santhan and
others Vs State by DSP, CBI, SIT, Chennai WITh
P.Ravichandran and others Vs State by DSP, CBI, SIT, Chennai
WITH Robert Payas and others Vs State by DSP, CBI, SIT,
Chennai WITH S.Shanmugavadivelu and others Vs State by
DSP, CBI, SIT, Chennai WITH S.Nalini and others Vs State by
DSP, CBI, SIT, Chennai, as under:
"110. The first condition which is
almost the opening lock of that provisions is
the existence of "reasonable ground to
believe" that the conspirators have conspired
together. This condition will be satisfied even
when there is some prima facie evidence to
show that there was such a criminal
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 144 of 194
145
conspiracy. If the aforesaid preliminary
condition is fulfilled then anything said by one
of the conspirators becomes substantive
evidence against the other, provided that
should have been a statement "In reference to
their common intention". Under the
corresponding provision in the English Law the
expression used is "in furtherance of the
common object".No doubt, the words "in
reference to their common intention" are wider
than the words used in English Law, (videSardar Sardul Singh Caveeshar v. State of
Maharashtra, (1964) 2 SCR 378: 1965 (1) Cri.L.J.
608: (AIR 1965 SC 682).111. But the contention that any
statement of a conspirator, whatever be the
extent of time, would gain admissibility underSection 10if it was made "in reference" to the
common intention, is too broad a proposition
for acceptance. We cannot overlook that the
basic principle which underlies inSection 10of
the Evidence Act is the theory of agency.
Every conspirator is an agent of his associate
in carrying out the object of the conspiracy.Section 10, which is an exception to the
general rule, while permitting the statement
made by one conspirator to be admissible as
against another conspirator restricts it to the
statement made during the period when the
agency subsisted. Once it is shown that a
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 145 of 194
146
person became snapped out of the conspiracy,
any statement made subsequent thereto
cannot be used as against the other
conspirators underSection 10.112. Way back in 1940, the Privy Council has
considered this aspect and Lord Wright,
speaking for Viscount Maugham and Sir
George Rankin inMirza Akbar v. KingEmperor,
AIR 1940 PC 176 : (1940 (41) Cri.L.J.871) has
stated the legal position thus :" The words 'common intention'
signify a common intention existing at the time
when the thing was said, done or written by
one of them. Things said, done or written while
the conspiracy was on foot are relevant as
evidence of the common intention, once
reasonable ground has been shown to believe
in its existence. But it would be a very
different matter to hold that any narrative or
statement or confession made to a relevant as
evidence of the common intention, once
reasonable ground has been shown to believe
in its existence. But it would be a very
different matter to hold that any narrative or
statement or confession made to a third party
after the common intention or conspiracy was
no longer operating and had ceased to exist is
admissible against the other party. There is
then no common intention of the conspirators
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 146 of 194
147
to which the statement can have reference. In
their Lordships' judgmentS.10embodies this
principle. That is the construction which has
been rightly applied toS.10in decisions in
India, for instance, in ILR 55 Bom 839 : (AIR
1932 Bom 56 : (1932) 33 Cri L.J.76) and (1911)
ILR 38 Cal 169. In these cases the distinction
was rightly drawn between communications
between conspirators while the conspiracy was
going on with reference to the carrying out of
conspiracy and statements made, after arrest
or after the conspiracy has ended, by way of
description of events then past."171. Regarding A1 Smt.Sheila Kaul (deceased) and A2
P.K.Thungon, there is definitely a conspiracy, as they were UDM and
MOS(UD) respectively at the time of allotment of shops, therefore
they were fully aware of the manner of allotment of shops which
were to be disposed off on the basis of auction as per the
established norms, as per the OM of 1979 and also the existing
norms, whereby the allotments had to be made by way of public
auction and open tenders, yet they in blatant violation of these
norms made illegal allotments to their favourites, which is most
arbitrary and unreasonable and in violation of fair play underArticle
14of Constitution of India.RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 147 of 194
148172. They were also fully aware that shops allotted in
P.G.Market, which was a market where ownership rights had
already been conferred, could have only been done by public
auction, yet they allotted the shops in the said market to (A3)
L.Tsering and (A4) Smt. Krishna at a very paltry amount on licence
fee basis causing financial loss to the State Exchequer, which was
against public interest. The notings Ex.PW26/A in file D4,
Ex.PW11/B in file D4, Ex.PW28/B in file D4 were the notings made
by the senior officers including Secretary, Ministry of UD pointing out
that open auction was the method for disposal of these shops and in
case, the applicants (A3) L.Tsering and (A)4 Smt.Krishna or any
other applicant wanted to participate in the open auction, they can
do so by participating in the public auction and since the shops were
located in the market where ownership rights have been conferred,
these may be auctioned by L&DO. Similarly, in the note
Ex.PW15/B, the same opinion was also expressed by the other
officials of the Directorate of Estates and the Finance Division also
expressed that since shops in P.G.Market were located in a very
strategic location, it will generate quite a good amount of revenue
for the government, if the shops were put on public auction, yet
these objections of the Finance Division and other officials of the
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 148 of 194
149
Urban Development Ministry were glossed over by the MOS (UD)
and UDM by allotting the shops to (A3) L.Tsering and (A4)
Smt.Krishna, so there was a clear cut conspiracy or agreement
amongst (A1) Smt.Sheila Kaul (deceased) and (A2) P.K.Thungon
to make allotments in violation of the established norms by illegal
means.173. Regarding the contention of Ld. defence counsel
Sh.S.P.Minocha that after the death of A1, A2 cannot be convicted
independently for conspiracy, as the offence of criminal conspiracy
consist in preagreement between two or more persons to commit a
criminal offence irrespective of further consideration whether or not
those offence(s) have actually been committed. Therefore, he
argued that atleast two persons are required to constitute conspiracy
and since A1 had died during the trial, therefore A2 cannot be
convicted for the offence of conspiracy. The said argument of Ld.
defence counsel is without any substance as it has been held in
Kannangara Aratchise Dharmasena Vs King (1950) 51 Cr.L.J
1597 (PC) that
one conspirator may be tried and convicted in
the absence of his companions in crime.RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 149 of 194
150174. Further, it has been held inPara 14 of Bimbadhar
Pradhan Vs State of OrissaAIR 1956 Supreme Court 469 as
under
In this connection the observations of this
Court int he case of 'Dalip Singh v. State
of Punjab', 1953 SC 364 (367368) (AIR V40)(G), and of the Federal Court in 'Kapildeo Singh v. The King', 1950 FC
80(81) (AIR V 37)(H), are relevant. It is not
essential that more than one person
should be convicted of the offence of
criminal conspiracy. It is enough if the
court is in a position to find that two or
more persons were actually concerned in
the criminal conspiracy.If the courts
below had come to the distinct findings
that the evidence led on behalf of the
prosecution was unreliable, then certainly
no conviction could have been based on
such evidence and all the accused would
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 150 of 194
151
have been equally entitled to acquittal.175. In view of the law laid down in the aforesaid judgment,
by same analogy, it would be trite that even after the death of A1
(who died during the trial after framing of charge), A2 can be tried
and convicted for the charge of conspiracy, as the evidence clearly
suggest A1 and A2 were actually and actively involved in the
offence of conspiracy.176. Regarding the role of (A3) L.Tsering in the said
conspiracy, though A3 was related to (A2) P.K.Thungon, but it
cannot be said that A3 was having any part in the conspiracy, as no
evidence has come on the record that there was any meeting of
mind between A2 and A3 with regard to allotment of shop by illegal
means in his favour, as he may be under some sort of impression
that A2, who was then serving as MOS(UD), was having power to
do so and that such act was a legal act and both A1 (deceased)
and A2 were having powers to allot shop in his favour by following
legal recourse.177. Similarly, regarding (A4) Smt.Krishna, no evidence has
come on the record that A4 ever met A1 or A2. It seems allotment
was put through by her brotherinlaw Karamveer Singh Maan, who
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 151 of 194
152
was the common friend of A1 and A2. Therefore, there was no
meeting of mind between A4 and A1 or A2.178. Similarly, allotment of shop in favour of (A5) Tulsi Balodi
(deceased) was put through her husband PW16 Prem Ballabh
Balodi, who was working in the personal staff of the then Prime
Minister of India. Therefore, there was no meeting of mind between
A5 and A1 or A2 with regard to conspiracy.179. Further, none of A3, A4 and A5 were connected with
each other, having any sort of connection inter se nor there was any
common thread running through all of them, so as to give inference
of conspiracy among them.180. Now, question which arises for consideration is that the
conspiracy agreement between A1 Smt.Sheila Kaul (deceased) and
(A2) P.K.Thungon was with regard to which offence(s). All the
accused persons, who were facing trial i.e. A1 Smt.Sheila Kaul
(deceased), A2 P.K.Thungon, A3 Lakhpa Tsering, A4 Smt.Krishna
and A5 Tulsi Balodi (deceased) have been charged u/S 120BIPCr/wSection 409IPC and 13(2) r/wSection 13(1)(c)and13(1)(d)of
PC Act.181. RegardingSection 409IPC, no offenceu/S 409IPC is
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 152 of 194
153
made out, as there was no entrustment of the shops allotted to A3,
A4 and A5 upon A1, who had ultimately allotted the said shops to
A3, A4 and A5, as she was the final authority to allot the shops
nor it can be said that A1 or A2 were having dominion over the
said shops which they dishonestly misappropriated or converted to
their own use or disposed off the same in violation of any direction of
law prescribing the mode in which the said trust was to be
discharged. Perusal of record reveals that the possession letter
Ex.PW26/G dated 31.05.94 in file D3, which is the letter of
allotment of A5 Tulsi Balodi(deceased) was issued by Directorate of
Estates, Government of India. Similarly, letter of allotment
pertaining to A3 L.Tsering dated 03.06.94 Ex.PW26/F in file D1
was also issued by Directorate of Estates, Government of India.
Lastly, the allotment letter of A4 Smt. Krishna dated 03.06.94 in file
D2 Ex.PW26/E was also issued by Directorate of Estates,
Government of India. These allotment letters clearly shows that the
property / shop(s) did not vest with the UDM or MOS(UD), but with
the Directorate of Estates, Government of India i.e. the shops vested
with the Government of India, as a sovereign. It may be that A1
and A2 recommended for allotment of shops, which were finally
approved by A1, who was the final authority for issuance of
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 153 of 194
154
allotment letters pertaining to allotment of shops to A3, A4 and A5,
but there was no entrustment as such, nor A1 or A2 could be said
to have any dominion of said shops, thereforeSection 409IPC
would not be made out.182. Ld.Spl.PP for CBI Sh. J.S.Wadia has relied upon
following judgments in support of his contention regardingSection
409IPC 1.State of MP vs Veeraswara Rao AgnihotriAIR 1957 SC 5922. Om Prakash Gupta Vs S.O.UP AIR 1957 SC 4583.Bikram Singh Vs State1974 Cri.L.J (Delhi) 4184. Somnath Puri Vs State of Rajasthan AIR 1972 SC 1490183. The preposition of law laid down in the aforesaid
judgments is not in dispute. However, same is not applicable to the
peculiar facts and circumstances of the present case. From the
above discussion,Section 409IPC is not made out, thoughSection
13(2)r/wSection 13(1)(c)is a separate and distinct offence fromSection 409IPC, but as discussed above since there was no
entrustment or misappropriation for the detailed reasons discussed
above,Section 13(1)(c)would also not be attracted in the present
case.RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 154 of 194
155184. RegardingSection 13(1)(d)(iii), the law has been laid
down in the following judgments
In a case decided by Hon'ble Supreme Court titledM.Narayanan Nambiar Vs State of Kerala1963(2) Cri.L.J.186, it
was held as under:6. As the first contention turns upon the
provisions ofS.5(1), it will be convenient to
read the same:5.(1) A public servant is said to commit the
offence of criminal misconduct in the discharge
of his duty(a) if he habitually accepts or obtains or
agrees to accept or attempts to obtain from any
person for himself or for any other person, any
gratification (other than legal remuneration) as
a motive or reward such as is mentioned in S.
161 of the Indian Penal Code, or(b) if he habitually accepts or obtains or
agrees to accept or attempts to obtain for
himself or for any other person, any valuable
things without consideration or for a
consideration which he knows to be inadequate
from any person whom he knows to have been,
or to be, or to be likely to be concerned in any
proceeding or business transacted or about to
be transacted by him, or having any connection
with the official functions of himself or of any
public servant to whom he is subordinate, or
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 155 of 194
156
from any person whom he knows to be
interested in or related to the person so
concerned, or(c) if he dishonestly or fraudulently
misappropriates or otherwise converts for his
own use any property entrusted to him or under
his control as a public servant or allows any
other person so to do, or(d) if he, by corrupt or illegal means or by
otherwise abusing his position as public
servant, obtains for himself or for any other
person any valuable thing or pecuniary
advantage.We are concerned in this case withS.5(1) (d)of
the Act. Under that clause if a public servant
by corrupt or illegal means or by otherwise
abusing his position as public servant obtains
for himself or for any other person valuable
thing or pecuniary advantage, he will be guilty
of criminal misconduct, punishable underS.
5(2)of the Act with imprisonment for a term
which shall not be less than one year and
which may extend to 7 years, and shall also be
liable to fine. The learned counsel contends
that clause (d) being a penal provision, shall be
strictly construed; and that if so construed, it
would only take in cases of direct benefit
obtained by a public servant for himself or for
any other person from a third party in the
manner described therein and does not cover a
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 156 of 194
157
case of a wrongful loss caused to the
Government by abuse of his power.10. ................ . First taking the phraseology
used in the clause, the case of a public servant
causing wrongful loss to the Government by
benefiting a third party squarely falls within it.
Let us look at the clause "by otherwise abusing
the position of a public servant," for the
argument mainly turns upon the said clause.
The phraseology is very comprehensive. It
covers acts done "otherwise" than by corrupt
or illegal means by an officer abusing his
position. The gist of the offence under this
clause is, that a public officer abusing his
position as a public servant obtains for himself
or for any other person any valuable thing or
pecuniary advantage. "Abuse" means misuse
i.e. using his position for something for which it
is not intended. That abuse may be by corrupt
or illegal means or otherwise than those
means. The word 'otherwise' has wide
connotation and if no limitation is placed on it,
the words 'corrupt', 'illegal', and 'otherwise'
mentioned in the clause become surplusage,
for on that construction every abuse of position
is gathered by the clause. So some limitation
will have to be put on that word and that
limitation is that it takes colour from the
preceding words along with which it appears in
the clause, that is to say, something savouring
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 157 of 194
158
of dishonest act on his part. The contention of
the learned counsel that if the clause is widely
construed even a recommendation made by a
public servant for securing a job for another
may come within the clause and that could not
have been the intention of the Legislature. But
in our view such innocuous acts will not be
covered by the said clause. The juxtaposition
of the word 'otherwise' with the words 'corrupt
or illegal means', and the dishonesty implicit in
the word "abuse" indicate the necessity for a
dishonest intention on his part to bring him
within the meaning of the clause. Whether he
abused his position or not depends upon the
facts of each case; nor can the word 'obtains'
be sought in aid to limit the express words of
the section. 'Obtain' means acquire or get. If a
corrupt officer by the said means obtains a
valuable thing or a pecuniary advantage, he can
certainly be said to obtain the said thing or a
pecuniary advantage; but it is said that in
clauses (a) and (c) the same word is used and
in the context of those clauses it can only mean
getting from a third party other than the
Government and therefore the same meaning
must be given to the said word in clause (d).
'Obtains' in clauses (a) and (b) in the context of
those provisions may mean taking a bribe from
a third party, but there is no reason why the
same meaning shall be given to that word used
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 158 of 194
159
in a different context when that word is
comprehensive enough to fit in the scheme of
that provision. Nor can we agree that as
dishonest misappropriation has been provided
for in clause (c), the other cases of wrongful
loss caused to the Government by the deceit
practised by a public officer should fall outside
the section. There is no reason why when a
comprehensive Statute was passed to prevent
corruption this particular category of
corruption should have been excluded
therefrom because the consequences of such
acts are equally harmful to the public as acts of
bribery. On a plain reading of the express
words used in the clause, we have no doubt
that every benefit obtained by a public servant
for himself, or for any other person by abusing
his position as a public servant falls within the
mischief of the said clause.185. It has been further held in a case decided by Hon'ble
High Court of Delhi titledRunu Ghosh Vs CBI Crl.A.482/2002,P.Rama Rao Vs CBI Crl.A.509/2002andSukh Ram Vs CBI Crl.A.536/2002 decided on 21.12.2011, as under:66. This question lies at the core of the
reference to this Division Bench. The material
portion of the reference, while adverting toSections 13(1)(d)and then dealing with the
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 159 of 194
160
phraseology ofSection 13(1)(d)(iii)and other
preceding subclauses, reads thus:Whether the absence of adverbs like
wilfully, fraudulently, dishonestly,
corrupt or illegal means to qualify
the verb obtains in this clause would
mean that a public servant commits
criminal misconduct if he while
holding such office obtains for any
person (and not for himself) any
pecuniary advantage which is
without any public interest? The
statute appears to offer no guidance
as to what can be said to be a
decision or act that is without public
interest.Though the reference order elaborately lists out
the salient facts in the Appeals, notes rival
contentions, and even notices relevant case
law, it is necessary to recapitulate the pre
existing law, i.e.Section 5(1)(d)of the 1947 Act,
and juxtapose it with the 1988 Act. The
controlling clauses, in both provisions, are in
pari materia (a public servant is said to commit
the offence of criminal misconduct if he ...).Section 5(1)(d)reads as follows:(d) if he, by corrupt or illegal means
or by otherwise abusing his position
as public servant, obtains for himself
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 160 of 194
161
or for any other person any valuable
thing or pecuniary
advantage...Section 13(1)(d)(i), (ii)
and (iii), on the other hand, read
thus:(i) by corrupt or illegal means,
obtains for himself or for any other
person any valuable thing or
pecuniary advantage; or Crl.A.Nos.
482/02, 509/02 & 536/02 Page 45(ii) by abusing his position as a
public servant, obtains for himself or
for any other person any valuable
thing or pecuniary advantage; or(iii) while holding office as servant,
obtains for any person any valuable
thing or pecuniary advantage
without any public interest.... It is
clear from the above comparison
that in clause (i), the reference to
"corrupt or illegal" means, (of a
public servant obtaining for himself,
or someone elseany valuable thing
or pecuniary advantage) has been
retained. However, the reference to
doing of such an act
"otherwise" (which was there in the
previous law, i.e.Section 5(1)(d)has
been omitted. The latter parts of
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 161 of 194
162Section 5(1)(d), i.e. the public
servant obtaining for himself or for
any one else any valuable thing or
pecuniary advantage, by abusing his
position as a public servant has
been retained, inSection 13(1)(d)(ii).A new offence (or subspecies, of the existing
offence) has been carved out, inSection 13 (1)(d)(iii) which criminalizes, as "criminal
misconduct" the act of a public servant,
holding office, which results in someone else
(any person) benefitting by getting a valuable
thing or pecuniary advantage, without any
public interest. There is no doubt that
Parliament created this new offence of criminal
misconduct, where abuse of office, or use of
corrupt or illegal means by a public officer, is
inessential to prove the crime. What the
prosecution has to establish, in accordance
with law, is that the public officer, obtained for
someone elsenot necessarily by abusing his
office, or using corrupt or illegal means
pecuniary advantage or a valuable thing
without public interest.79. What then is the behaviour or act which
attracts such opprobrium as to result in
criminal responsibility? It is not every act
which results in loss of public interest, or that
is contrary to public interest, that is a
prosecutable offence. There can be no doubt
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 162 of 194
163
that all acts prejudicial to public interest, can
be the subject matter of judicial review. In
those cases, courts consider whether the
decision maker transgressed the zone of
reasonableness, or breached the law, in his
action. However, it is only those acts done with
complete and manifest disregard to the norms,
and manifestly injurious to public interest,
which were avoidable, but for the public
servants overlooking or disregarding
precautions and not heeding the safeguards he
or she was expected to, and which result in
pecuniary advantage to another that are
prosecutabe underSection 13(1)(d)(iii). In
other words, if the public servant is able to
show that he followed all the safeguards, and
exercised all reasonable precautions having
regard to the circumstances, despite which
there was loss of public interest, he would not
be guilty of the offence. The provision aims at
ensuring efficiency, and responsible behaviour,
as much as it seeks to outlaw irresponsibility in
public servants functioning which would
otherwise go unpunished. The
blameworthiness for a completely indefensible
act of a public servant, is to be of such degree
that it is something that no reasonable man
would have done, if he were placed in that
position, having regard to all the
circumstances. It is not merely a case of
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164
making a wrong choice; the decision should be
one such as no one would have taken.81. As noticed previously, the silence in the
statute, about the state of mind, rules out
applicability of the mens rea or intent standard
(i.e. The prosecution does not have to prove
that the accused intended the consequence,
which occurred or was likely to occur). Having
regard to the existing lawSection 13(1)(e)(which does not require proof of criminal
intent) as well as the strict liability standards
prevailing our system of law, therefore, a
decision is said to be without public interest, (if
the other requirements of the provision, i.e.Section 13(1)(d)(iii)are fulfilled) if that action of
the public servant is the consequence of his or
her manifest failure to observe those
reasonable safeguards against detriment to the
public interest, which having regard to all
circumstances, it was his or her duty to have
adopted.186. Regarding the offenceu/S 13(1)(d)of the PC Act 1988,
in view of the law as laid down by Hon'ble High Court of Delhi in
Runu Ghosh (supra), it is to be seen whether the prosecution has
been able to prove offence u/S 13(1)(d)(iii) ofPC Actwhich
criminalizes criminal misconduct of a public servant holding public
post which results in somebody else i.e. any person benefiting by
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 164 of 194
165
getting a valuable thing or pecuniary advantage without any public
interest and the prosecution has to establish to prove the said
offence that the public officer obtained for someone else not
necessarily by abusing his office or using corrupt or illegal means
pecuniary advantage or a valuable thing without any public interest.
It has been further held in the said judgment that it is not every act
which results in loss of public interest or that is contrary to public
interest, which is prosecutable offence. It is only those acts done
with complete and manifest disregard to the norms and manifestly
injurious to public interest which is avoidable, but for the public
servants overlooking or disregarding precautions and not heeding
the safeguards he or she was expected to, which resulted in
pecuniary advantage to another is prosecutableu/S 13(1)(d)(iii). In
other words, if public servant is able to prove or show that he
followed all the safeguards and exercised all reasonable precautions
taking into account the circumstances, despite which there was loss
of public interest, he would not be guilty of the offence. In the said
judgment, in Para 82 some instances of the same have been given.
The said Para 82 is reproduced as under:82. It would be useful to in this context, take
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 165 of 194
166
recourse to certain examples. For instance, in
not adopting any discernable criteria, in
awarding supply contracts, based on
advertisements calling for responses, published
in newspapers having very little circulation, two
days before the last date of submission of
tenders, which result in a majority of suppliers
being left out of the process, and the resultant
award of permits to an unknown and untested
supplier, would result in advantage to that
individual, and also be without public interest,
as the potential benefit from competitive bids
would be eliminated. Likewise, tweaking tender
criteria, to ensure that only a few applicants are
eligible, and ensure that competition (to them)
is severely curtailed, or eliminated altogether,
thus stifling other lines of equipment supply, or
banking on only one life saving drug supplier,
who with known inefficient record, and who has
a history of supply substandard drugs, would
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 166 of 194
167
be acts contrary to public interest. In all cases,
it can be said that the public servant who took
the decision, did so by manifestly failing to
exercise reasonable proper care and precaution
to guard against injury to public interest, which
he was bound, at all times to do. The intention
or desire to cause the consequence may or may
not be present; indeed it is irrelevant; as long
as the decision was taken, which could not be
termed by any yardstick, a reasonable one, but
based on a complete or disregard of the
consequence, the act would be culpable.187. Here also, the allotment of shops to A3, A4 and A5 by
not adopting the criteria of OM of 1979 i.e. by going for public
auction/open public tender which resulted in many other persons
similarly situated being left out from the consideration zone and
which resulted in allotment of shops to A3, A4 and A5, who were
either family member or were having some sort of connections in the
Ministry with A1 (deceased) or A2 and the fact that the two other
shops were alloted at a very strategic location i.e. P.G.Market
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 167 of 194
168
(Lajpat Rai market) which was just opposite Red Fort near the
commercial hub of Chandni Chowk, cannot be said to be in public
interest. The said recourse severely curtailed or eliminated
altogether the participation of other public persons in the auction,
therefore the decision of allotment of shops in favour of A3, A4 and
A5 cannot be said to have been taken by exercising reasonable or
proper care and precaution to guard against the public interest
which A1 and A2 being the Cabinet Minister and MOS were bound
to follow, being repository of public trust and faith.188. As already discussed above, in the note dated 23.12.93
Ex.PW26/A, it was clearly mentioned that the shops in P.G.Market
i.e. Lajpat Rai Market, the ownership rights had already been
conferred, therefore any allotment could have only been done by
public auction. Same was the observation made in note Ex.PW11/B
dated 31.12.93 as well as in the note of then Secretary, UD dated
18.01.94 Ex.PW28/B, as also in the note Ex.PW15/B dated 04.05.94
in which it was stated that it was the first time that UDM had made
allotment of shops in a rehabilitation market (P.G.Market i.e. Lajpat
Rai market) where government had already conferred ownership
rights. It was also noted that since 1964, they had not revised the
economic licence fee of rehabilitation markets, although in other
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 168 of 194
169
markets the revision of licence fee had been done thrice after 1985.
Similarly, in the note Ex.PW15/A, though it was stated that the
previous UDM had also allotted 15 shops in 1989, as per exception
clause3 of OM of 1979, but even at that time the same was
dissented by JS (Finance) noting that the wholesale exception will
tend to make it as a rule rather than an exception, but the said
objection was not considered and the then UDM went ahead with
the allotment(s).189. In the said note Ex.PW15/A, it was pointed out that
purely from the financial point of view, PG Market was situated at
the heart of Delhi, just opposite Red Fort and it was hub of
commercial activity and because of this, if the two shops were to be
disposed off through public auction, it will earn for government quite
a handsome amount of revenue and it was also mentioned that
some shops were also put on tenders in some other markets in the
control of Directorate of Estates in years 1987, 1988 and 1994 which
were 133 INA market, 51 SectorVIII R.K.Puram, 148 Ring Road
market and 31 Andrews Ganj, and it was observed that the shops
mentioned therein attracted quite a good amount of tender amount
in each case. Therefore, if the two shops at the P.G.Market were
also allotted on tender basis, it would fetch more amount than the
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 169 of 194
170
four shops mentioned above and it will be observed that the shop at
INA market was alloted in year 1988 for a sum of Rs.3,100/, Sector
VIII, R.K.Puram in year 1987 for a sum of Rs.4,672/, Ring Road
market in year 1994 for a sum of Rs.4,005/ and lastly Andrews Ganj
in year 1994 for a sum of Rs.2,700/.190. Therefore, despite the note dated 05.05.94 Ex.PW15/A,
the said objection was not at all considered which was made by the
Finance Division of Urban Development Ministry, yet in utter
disregard to the said objection, A1 (deceased) on the
recommendation of A2 went ahead and allotted two shops bearing
nos.85 and 405 to A4 and A3 respectively on regular basis on
payment of licence fee vide order dated 12.05.94 signed by A2 and
that of A1 (deceased) dated 16.05.94, who concurred with order for
the issuance of allotment letters.191. In fact, a note was also made by JS and FA (UD)
Sh.Girish Bhandari Ex.PW15/DA that the Directorate of Estates has
mentioned that the allotment of shops was to be done by auction,
therefore there was a departure from existing policy, therefore one
option could be to allot shops in any of the other areas where 15
shops were allotted in 1989, but since it appears that A1 and A2
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 170 of 194
171
were in a hurry to allot the shops to their known persons by not
adhering or considering the objections made by various officers of
the Urban Development Ministry as well as by the Finance Division
and finally the allotment letters were issued to A3 and A4. For
example A4 was alloted shop no.85, P.G Market at a paltry licence
fee of Rs.298/ per month vide letter Ex.PW26/E. Similarly, A3 was
alloted shop no.405, P.G.Market vide letter dated 03.06.94
Ex.PW26/F at a monthly licence fee of Rs.291/ and that of A5
(deceased) was allotted shop no.2, Hanuman Road, New Delhi vide
allotment letter Ex.PW26/G at a paltry licence fee of Rs.596/ per
month.192. Judicial notice of this fact can be taken that shop at
Hanuman Road which is situated next to Cannaught Place, is also
very strategically placed, since it is a hub of commercial activity,
same would have also fetched handsome amount of revenue to the
Government, rather it was allotted to A5 at a paltry amount of Rs.
596/ for the reasons best known to A1 and A2.193. Though, A5 has expired, yet it is relevant to discuss
that, though the process of allotment of shops to A3 and A4 went
through various layers of bureaucratic channels i.e. official notings
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 171 of 194
172
and contrary notings were made by Desk Officer, Joint Secretary,
Secretary, Director and UDM and matter was also dealt with by
Finance Division of the Urban Development Ministry, as the opinion
of Finance Division was also sought, but in the case of A5, no such
thing was done. In fact, it appears that a note was put regarding the
allotment on 30.03.94 vide note Ex.PW10/DC, though observing that
the market at Hanuman Road had also to be disposed off by auction
by L&DO after fixing the reserve price in consultation with the
Finance Division, as per OM of 1979, yet all these objections were
not taken into consideration and a note was put up for allotment of
the shop at Hanuman Road in favour of A5 and on the same day,
the matter proceeded at a lightening speed and it was approved by
the Secretary on 30.03.94 itself and finally by UDM on 09.04.94. It
is not clear who received application and from whom.194. Thereafter the allotment letters were issued and it would
be worthwhile to note that A5 was none else, but wife of PW16
Sh.Prem Ballabh Balodi, who at the relevant time was working in the
personal staff of then Prime Minister of India. Neither detailed notes
were made nor official concurrence or the opinion of Finance
Division was taken, rather it appears that same was a case of fait
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 172 of 194
173
accompli, as probably all the bureaucrats of the Urban
Development Ministry were full aware that the said allotment had to
be made without any demur or protest, therefore there was no point
in raising any objection, therefore the application of A5 did not pass
through the layers of notings of Secretary or any other Senior
Officers in the Urban Development Ministry as well as Finance
Division, as was done atleast in the case of A3 and A4. Rather, it
appears that on the receipt of application, the allotment was done on
the same day to A5. This undue, haste also leads to the conclusion
that all norms were set aside for making the said allotment, come
what may.195. Regarding the contrary argument of Ld. defence counsel
Sh.S.P.Minocha that the shops in question could not be disposed off
by public auction despite repeated steps taken by the Government,
as the reserve price was too high, therefore no bidder came forward,
which has been admitted by numerous prosecution witnesses
examined on the record. There was even a proposal for transfer of
these shops to local bodies, but they were also not ready to accept
the same except free of cost. Thereafter, the matter was pending for
refixation of reserve price, as reserve price was very high. He has
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 173 of 194
174
also argued that it has been admitted by many prosecution
witnesses that the shops in question were lying in a dilapidated
condition for a very long time, rather were causing loss to the
government on account of repair and loss of revenue. He further
argued that allotments of 15 shops was similarly made by the
previous UDM in year 1989, as per clause3 of the exception clause
of OM of 1979 and further, the shops in question had been allotted
without prescribing any period of leave and licence with the
condition that the government reserves its right to cancel the licence
and lease, take possession of shops after giving 30 days notice and
all the allottees had also given an undertaking in this effect.
Therefore, he has argued that what infraction of law or norms A1 or
A2 had done in the present case.196. This argument of Ld. defence counsel for A1 is without
any substance for the reasons already discussed above. Merely
because many shops had been earlier allotted by the previous UDM
out of turn without following the norms of auction/tender as per
clause3, does not mean that the present allotment is also right, as
two wrong do not make it right, though it is further said in light vain
three rights make a left, but the fact remains wrong doings cannot
be undone by doing something else wrong. Merely because the said
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 174 of 194
175
earlier allotment made by the previous UDM in 1989 was not
challenged, does not mean that there is no illegality or infirmity in the
present allotment(s). It would not be out of place to mention that in
the note Ex.PW15/A made by the Finance Division with regard to
the proposal of allotment of shops to A3 and A4, it was observed
that at the time of allotment of 15 shops by the previous UDM, the
then Joint Secretary (Finance) had also seriously objected to it
observing that the said wholesale exception would tend to make it
as a rule rather than exception. Therefore, it is not that at that time
none had objected to recourse to the exception clause3 by the then
UDM for allotment of 15 shops. The present case allotment(s) of
three shops is also distinguishable from the allotment of 15 shops by
the earlier UDM, which were made in new government colony
markets, which were newly constructed. They were not having
strategic location as well as economic condition, as was in this case,
as the two shops were allotted in P.G.Market (Lajpat Rai Market),
opposite Red Fort, whereas the third shop was alloted in Hanuman
Road next to commercial heart of Delhi, Connaught Place.
Therefore, pecuniary loss caused to the State Exchequer has been
immense due to indiscriminate acts of A1 and A2.197. Further, PW20 K.D.Singh (corrected as PW21 vide
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 175 of 194
176
ordersheet dated 15.05.13) has deposed that after the directions of
Hon'ble Supreme Court, they had called tender(s) for various
shops/stalls and rates would have been quoted therein, on this basis
comparative statement was prepared by the Directorate of Estates.
The said comparative statement is Ex.PW20/1 (again corrected as
Ex.PW21/1). Perusal of said record would reveal that the said shop
no.2 which was allotted to Smt.Tulsi Balodi(A5)(deceased) at
Hanuman Road, Connaught Place, was allotted to the highest
bidder, which invited a tender of Rs.9,000/ per month. The next two
bidders of the said shop was Rs.8,000/ each and the last was Rs.
7,100/, whereas the said shop had been allotted to A5 at a paltry
amount of Rs.596/ per month. Therefore, there was huge
pecuniary loss to the State Exchequer and the same resulted in
huge pecuniary advantage to A5 without any public interest. The
same cannot be said to be in public interest.198. Though, no comparative statement of the auction of
shop nos.85 and 405 have been placed on the record after the
cancellation of allotments by the Hon'ble Supreme Court, but judicial
notice of this fact can be taken that the said shops would have
fetched more revenue due to even more strategic location of these
shops, next to Chandni Chowk, especially when ownership rights
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 176 of 194
177
had been conferred in respect of said shops, therefore pecuniary
loss to the State Exchequer and pecuniary advantage to A3 and
A4 can well be imagined.199. Abraham Lincoln said in his famous quote:" Nearly all men can stand adversity, but if
you want to test a man's character, give him
power."200. The Ministers are repository of power of people, which
people have given them by electing them. They look upon them for
amelioration of their condition, not to betray them by squandering
meagre resources of the nation, further as said by father of nation
Sh.Mahatma Gandhi :
' The world has enough for everyone's need, but not
enough for everyone's greed'201. Greed of man is insatiable, but people in high places
especially Ministers should lead by example, as the whole nation
and society look upon them for emulation, so that the faith of the
people in democracy and rule of law remain unflinched, which are
the basic structure of our constitution.202. The famous poet folk rock singer Bob Dylan ( it is often
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 177 of 194
178
said, he was the true voice of American spirit) aptly wrote in his epic
song album 'The Times They are A changin' released in 1964
with regard to American political society at that time
* 'Come Senators, Congress man
Please heed the call
Don't stand in the doorway
Don't block up the hall
for he that gets hurt
will be he who has stalled
There's a battle outside and
it is ragin
it'll soon shake your windows
and rattle your walls
for the times they are a chang in'
(* a excerpt from said song)203. Now, as already discussed above in detail that the
allotment(s) of present shops to A3, A4 and A5 (deceased) was
most unfair, arbitrary and in violation ofArticle 14of Constitution of
India, as no criteria or classification was made for allotting the shops
to a particular person or a class of persons, rather the same were
made in blatant violation of all established norms of allotment(s) by
following favouritism and nepotism.204. Since acts of A1 (deceased) and A2 being Public
servants resulted in pecuniary advantage or getting valuable thing in
favour of A3 and A4 and A5 (deceased) in terms of allotment of
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 178 of 194
179
shops by abusing their official position, which was clearly against
any public interest.205. Therefore, there was a clear cut conspiracy between
A1(deceased) and A2 for committing the illegal act or to commit
the offence punishableu/S 13(1)(d)(iii)r/wSection 13(2)of the PC
Act. Since A1 has already expired and the proceedings against her
has stood abated, therefore only A2 stands convicted u/S 120BIPCr/wSection13 (1)(d)(iii)r/wSection 13(2)of PC Act, 1988.
However, (A3) L.Tsering and (A4) Smt. Krishna are acquitted of
the charge(s) under Section 120B r/wSec.409IPC and 13(2) r/wSec.13(1)(c)and13(1)(d)of PC Act. (A5) Tulsi Balodi has also
expired and proceedings against her stood abated vide order dated
21.08.14.ANNOUNCED IN THE OPEN COURT
ON 24.02.2016
(SANJEEV AGGARWAL)
Special Judge,
CBI03(PC Act)
Delhi/24.02.2016
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 179 of 194
180
IN THE COURT OF SH. SANJEEV AGGARWAL:SPECIAL JUDGE: CBI03 (PC ACT): DELHI
CC No.12/15 RC : 48(A)/1996
PS : CBI/ACB/ND
U/s : 120B r/wSec. 13(2)r/w Sec.13(1)(d)(iii) ofPC Act, 1988.CBI Vs. (1) P.K.Thungon
S/o Sh.P.W.ThungonFormerly Minister of State in the M/O UA&E, ND
R/o flat no.7, Yashwant Place, New Delhi
Permanent address Thungon House, Bomdila,
West Kameng District, Arunanchal Pradesh.ORDER ON SENTENCE1. Vide judgment dated 24.02.2016 (A2) P.K.Thungon
was convicted u/S 120BIPCr/wSection13 (1)(d)(iii)r/wSection 13(2)of PC Act, 1988.2. I have heard Sh. J.S.Wadia, Ld PP for CBI and Ld.
Defence counsels for A2 Sh. S.P.Minocha and Sh. Gagan
Minocha.3. Ld. counsels for the convict Sh. S.P.Manocha and Sh.Gagan Manocha have filed an affidavit in support of mitigating
circumstances, as well have addressed their oral arguments
stating that convict is aged 70 years of age at present. He is a
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 180 of 194
181
scheduled tribe belonging to Arunachal Pradesh. The wife of the
convict is suffering from acute liver decease for which she is
taking regular treatment. It is also stated that his wife had also
suffered a brain stroke and she had also undergone the surgery,
which has severally effected her mobility.4. It is further stated that his two sons are settled in Arunachal
Pradesh and only one son is temporarily staying in Delhi and
therefore the convict is the only person to look after his wife
emotionally as well as physically.5. It is also stated that even as per the allegations of the
prosecution there is no element of bribery involved in the present
case. The convict had only recommended the case of L. Tsering
and Smt. Krishna on compassionate grounds. It is also stated
that the convict is actively associated with various social
organizations and he has extensively contributed for the
betterment of Arunachal Pradesh by doing various good deeds. It
is also stated that he has already faced trial for 18 years.
Therefore leniency be shown to him in awarding sentence to him.
It is also stated that the convict is in custody in another case from
21.07.15. Therefore benefit may be accorded to him U/s 427/428Cr.P.C. He has also relied upon the following judgments in
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 181 of 194
182
support of his contentions:(i) 2011(2) C.C. Cases(HC) 126 titled asRam Rattan Vs. Statethrough Central Bureau of Investigation(ii) Crl. Appeal No. 404 of 2014 titled as V.K.Verma Vs. CBI6. On the other hand, Ld. Spl. PP for CBI has refuted the
aforesaid arguments of Ld. counsel for the convict, stating that
severe punishment be granted to the convict, as he had abused
his official position as a public servant by corrupt means and
thereby obtained pecuniary advantage in favour of certain
allottees who were either his close relatives or were very close to
him or to the then UDM Smt. Shiela Kaul. He has further argued
that no leniency can be shown to the Ministers who occupy high
pedestal(s) of public office, and yet violate the trust reposed in
them by the public. He has also argued that the convict has
already been convicted in another case for corruption, wherein
he has been sentenced for 4 ½ years R.I. Therefore it is prayed
that considering his past record no ground for leniency is made
out.7. I have gone through the rival contentions and perused the
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 182 of 194
183
affidavit filed by the convict as well as the judgments relied upon
by the Convicts (SUPRA)8. Counsel for convict has also relied upon the judgment
dated 25.04.1978, decided by Hon'ble High Court of Delhi tilted
as K.C. DASS, N.K.CHATERJEE VS. STATE OF DELHI
CRLJ19790362/DLT19781416/ILR (DEL)19782341, the
relevant para(s) of the same are reproduced as under:2. THESE are three petition for habeas
corpus. The point raised in all of them is
the same. It is a point of principle. It relates
to set off the period of detention undergone
by the accused unders. 428of the Criminal
Procedure Code, 1973.The three accused in the three writ
petitions were convicted of crimes in more
cases than one. They were awarded
separate sentences at different times. Each
of the accused was arrested in one case to
begin with and thereafter he was also
placed under arrest at different times in
other cases. This means that formally he
was put under arrest in other cases, though
he was already in detention.Take a simple illustration. An accused is
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 183 of 194
184
arrested in one case on 11977. He is
arrested in another case on 111978, while
the trial of the first case is proceeding. In
the first case he is convicted and
sentenced on 3111978 to two years
imprisonment. Under S. 428 the accused
will be entitled to set off his period of
detention from 111977 to 3111978
against the term of imprisonment imposed
on him in the first case. This legal position
is incontestable.To take the illustration further, suppose in
the second case the accused is convicted
on 31378 and sentenced to three years
imprisonment. Now the accused claims
that he is entitled to set off the pretrial
detention in the second case as well. In
other words he claims that the period of
detention from 111977 to 3131978 be set
off against the sentence of imprisonment
imposed on him in the second case. The
short question is : Is he entitled to set off
the period of detention against his
sentence in the second case though he had
the benefit of s. 428 once in the first case?
The Delhi Administration opposes these
petitions. Counsel for the Administration
submitted that the accused person is
entitled to set off in the second case only
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 184 of 194
185
upto the date of conviction in the first case
as the period of detention undergone by
the accused in prison after conviction was
being undergone under the sentence
imposed in the first case and not during the
investigation, inquiry or trial of the second
case.S. 428 of the Code lays down the rule of
"set off". It reads :"Where an accused person has, on
conviction, been sentenced to
imprisonment for a term, the period of
detention, if any, undergone by him during
the investigation, inquiry or trial of the
same case and before the date of such
conviction, shall be set off against the term
of imprisonment imposed on him on such
conviction, and the liability of such person
to undergo imprisonment on such
conviction shall be restricted to the
remainder, if any, of the term of
imprisonment imposed on him."On a truand interpretation of the section it
appears to us that in the second case also
in which the accused person was convicted
on 31 March, 1978 he will be entitled to set
st
off the period of pre trial detention i.e. 1
st
January, 1977 to 31 March, 1978 against
st
the sentence of three years imposed on
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 185 of 194
186
him. The status does not make any
distinction between the first case and the
second case. The principle is the same. It
has to be applied to all cases even
handedly and uniformly.The key words of the section are "the
period of detention, if any, undergone by
him during the investigation, inquiry or trial
of the same case and before the date of
such conviction". This "period of
detention" shall be set off against the term
of imprisonment imposed on him on
conviction. The liability of such person to
undergo imprisonment shall be restricted
to the remainder of the term of
imprisonment imposed on him.The words "of the same case" are
important. The section speaks of the
"period of detention" undergone by the
accused person, but it expressly says that
the detention mentioned refers to the
detention during the investigation, inquiry
or trial of the case in which the accused
person has been convicted. The section
makes it clear that the period of detention
which it allows to be set off against the
term of imprisonment imposed on the
accused on conviction must be during the
investigation, inquiry or trial of the case in
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 186 of 194
187
which the accused person has been
convicted. The section makes it clear that
the period of detention which it allows to
be set off against the term of imprisonment
imposed on the accused on conviction
must be during the investigation, inquiry or
trial in connection with the "same case" in
which he has been convicted. (See
Government of P.P. v. A.V. Rao, AIR 1977
SC 1097 (1100) (1).S. 428 provides that the period of detention
of an under trial prisoner shall be set off
against the term of imprisonment imposed
on him on conviction. Will it not be true to
say that the accused is an under trial
prisoner in the second case in our
illustration. It it is so he will be entitled to
set off his pre conviction period against the
term of imprisonment imposed on him in
the second case as in the first. We see no
ground to deny him the benefit in the
second case.The provision as to set off expresses a
legislative policy (SeeGovernment of A.P.Supra). We sit here to carry out the will of
Parliament. The Supreme Court has said :"S428 is absolute in its terms. It provides
for set off the preconviction detention of
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 187 of 194
188
an accused person against the term of
imprisonment imposed on him on
conviction"(B. P. Andre v. Supdt. Central Jail, AIR 1975
SC 164 (168) (2).The principle of S. 428 has to be applied in
all cases whether the accused is convicted
in one case or many, whether
simultaneously or at different times. The
reason is that in the second case the
accused person remains as untried and
unsentenced prisoner till his trial is
concluded. At the end of the trial he is
convicted and sentenced to a term of
imprisonment. Before trial is finished he
remains an unconvicted person accused of
a crime. Nothing more than this. The
statute says that if on trial he is convicted
and a term of imprisonment is imposed
allow him set off of the period of pretrial
detention. Therefore, if the accused person
is in detention as an unconvicted, untried
or unsentenced prisoner and is, on trial,
convicted and sentenced to a term of
imprisonment he is entitled to set off.Whether such period of pre trial detention
is common to a considerable extent in the
two cases is of no consequence to the
application of s. 428.RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 188 of 194
1893. IF the sentences awarded on conviction
are to run concurrently s 427 applies. IF
sentences in the two cases in our
illustration are not ordered to run
concurrently, the remainder of the term of
imprisonment, after adjustment of the pre
trial period already undergone in the
second class, shall commence at the expiry
of the term of imprisonment in the first
case after setting off the pre trial detention
period. In both cases he will be entitled to
set off.The view we take was also taken by one of
us sitting singly (v.D. Misra, J.) in two
cases : Bahadur Chand v. G.K. Marwaha,
Criminal Writ 14 of 1977 decided on 13
th
May, 1977(3) and Sunil Kumar v. State
Criminal Misc. (Main) No. 2079 of 1975
decided on August 21, 1975(4).A learned
single Judge of Rajasthan High Court has
also taken the same view inChella V. State
of Rajasthan, 1977 Cr.L.J. 589(5).A learned single Judge of this Court in K.C.
Dass @ N.K. Chatterjee v. State, Cr. Misc.
(Main) No. 121 of 1978 decided on March,
10,1978(6) held to the contrary. He held that
in the second case the accused person is
entitled to set off the period of detention
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 189 of 194
190
upto the date of conviction in the first case.
In our illustration, according to the learned
Judge he will be entitled to set off from 1
st
January, 1977 to 31 January, 1978 and not
st
upto 31 March, 1978. The learned Judge
st
thought that on conviction in the first case
the accused person was serving the
sentence and was not in pretrial detention
so far as the second case is concerned. We
do not agree with this reasoning. The
accused person is in pretrial detention as
regard the second case. It is certainly a pre
conviction period and the statute operates
in his favour.We have not dealt with the particular
facts of each case. We have settled a
point or principle. We therefore direct
the Superintendent of Jail to compute
the period of detention in each of the
cases in the light of opinion
expressed by us. The petitioners may
be informed in jail.9. In view of the said judgment, which is squarely applicable
to the facts of the present case, the convict in the present case
will be entitled to set off his detention in J/C during pre
conviction period in another case against the term of
imprisonment imposed upon him in the present case i.e. to say
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 190 of 194
191
that the period of imprisonment already undergone by him in
another case, wherein he had been convicted already, would
also be set off from the period of imprisonment imposed in the
present case u/S 428 Cr.P.C. The sentence of the convict in
this case shall run concurrently with the previous sentence of
imprisonment imposed upon him in another case i.e. to say
that the convict has been accorded benefit u/S 427 as well as
428 of Cr.P.C.10. It was said long ago by Lord Acton(18341902) English
historian
'Power tends to corrupt and absolute power corrupts
absolutely'10. Then it is also said
'Power does not Corrupt People, People Corrupt Power' -
William Gaddis11. Either way the fact remains that power is no blessing in
itself, except when it is used for benefit of common man. The
Ministers are the sole repository of the power of the people,
which they have reposed in them,for their amelioration, with
power comes great responsibility for exercise of said power. It
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 191 of 194
192
is a two edged sword, if not used correctly, it can slay the
wielder. Then there is a perception amongst man on the street."Steal a little, and they put you in jail, steal a lot and they
make you king" Bob Dylan(from the song album 'Sweet
heart like you')12. This perception though not right, has to be demolished,
so that there is transparency in Governance for the people, for
whom it is meant, those who wield power, must be held
accountable for it. They cannot exercize power of people,
arbitrarily for their own ends, or for a favourite few by corrupt
means, it has to be eradicated as it has tendency to multiply,
as all vices do, it is often said
"Corruption is like a ball of snow, once it's set a rolling it
must increase' -Charles Caleb Colton, English Cleric,
writer and collector(17801832)13. Though sometimes latitude can be shown to a person who
commits the crime due to poverty or passion, but not to a person
who in zenith of public position abuses his power for corrupt
means in detriment to just expectations of the nation and society.
Severe punishment has to be visited upon these puissant public
servants, so that others who are waiting in the wings or those
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 192 of 194
193
who have already accomplished the fait accompli shiver, while
thinking about the consequences of any such wrong doing while
occupying such high public positions. In this context, I would
quote very beautiful COUPLET OF BAHADUR SHAH
ZAFAR( Poet king or last mughal emperor of India)
ZAFAR AADMI USS KONA JANIYE GA WOH HO KITNA HI
SAHABE FAHAMOZAKA
JISE AISH MEIN YAADEKHUDA NA RAHI, JISE TAISH MEIN
KHAUFEKHUDA NA RAHA
(call him not a man ZAFAR HOWSOVER WISE, WHO, IN JOY
FORGETS HIS LORD, IN RAGE RESPECTS NO QUALMS)14. In these circumstances, the judgment relied upon by the
Ld. counsel for the convict (Supra) praying for lenient
punishment is not available to the convict in the peculiar facts
and circumstances of the present case. As a resultant, the
interest of justice shall be met if the convict is sentenced to a
rigorous imprisonment of 3 ½ years and also fine of Rs.1 Lakh,
in default of payment of fine SI for 6 monthsu/S 13(1)(d)(iii)r/wSec. 13(2)of Prevention of Corruption Act, 1988. The convict in
the present case will be entitled to set off his detention in J/C
during preconviction period in another case against the term
of imprisonment imposed upon him in the present case i.e. to
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 193 of 194
194
say that the period of imprisonment already undergone by him
in another case, wherein he had been convicted already,
would also be set off from the period of imprisonment imposed
in the present case u/S 428 Cr.P.C. The sentence of the
convict in this case shall run concurrently with the previous
sentence of imprisonment imposed upon him in another case
i.e. to say that the convict has been accorded benefit u/S 427
as well as 428 of Cr.P.C.15. Copy of the judgment alongwith order on sentence be
given to the convict free of cost. File be consigned to record
room.ANNOUNCED IN THE OPEN (Sanjeev Aggarwal)
COURT ON 29.02.2016 Special Judge,
CBI03(PC Act)
Delhi/29.02.2016
RC NO. 48(A)/1996
CBI vs. Sheila Kaul & ors. 194 of 194 |
f42da583-ae72-5261-9c78-d8f903a34a1b | court_cases | Custom, Excise & Service Tax TribunalMr. Erol Gilbert Tennyson vs Commissioner Of Customs (Import) ... on 17 April, 2008IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
COURT NO.
APPEAL NO. C/693,700,740,750
,793/07-Mum.
(Arising out of Order-in-Original No. 70/2007/CAC/CC(I)/AKP(SIIB)(I) dt. 17.05.2007 passed by the Commissioner of Customs, (Imports) N.C.H. Mumbai.
For approval and signature:
Honble Shri M. V. Ravindran, Member (Judicial)
Honble Shri K.K. Agarwal, Member (Technical)
============================================================1. Whether Press Reporters may be allowed to see :
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy :
of the Order?
4. Whether Order is to be circulated to the Departmental :
authorities?
=============================================================
Mr. Erol Gilbert Tennyson
:
Appellant
M/s. Sea Bulk Oftshore LLC.
Ashok Sasthe
Abdul Subhan Abdul Rahim Shaikh
Commissioner of Customs (Import) Mumbai.
VS
Commissioner of Customs (Import) Mumbai.
Vivencio Bartiloni Degollacion
Respondent
Appearance
Shri Anil Balani, Advocate
Shri S.N. Kantawala, Advocate
Shri G.B. Yadav, Advocate
Shri N.D. George, Advocate
Shri H.K. Prem, Advocate with
Shri Ashok Singh, Advocate for Appellants/Respondents
Shri B.K. Singh, Authorized Representative (Jt. CDR)
CORAM:
Shri M. V. Ravindran, Member (Judicial)
Shri K.K. Agarwal, Member (Technical)
Date of hearing : 8.4.2008, 17.4.2008
Date of decision.
ORDER NO.
Per : Shri M. V. Ravindran, Member (Judicial)All these appeals are directed against order-in-original No. 70/2007/CAC/CC(I)/AKP(SIIB)(I) dt. 17.05.2007. Since all these appeals arise out of the same order-in-original, and the facts being the same, they are being disposed off by a common order.2. The relevant facts that arise for consideration are that a specific information was received by the SIIB (import), New Customs House, Mumbai, on 23.5.2006 that a supply vessel Sea Bulk Toota is indulging in illegal sale of smuggled diesel to barges in and around Mumbai Docks. It was also learnt that the vessel was anchored near Chinai Tekdi, opposite Ferry Wharf and would be delivering around 30,000 to 40,000 liters of Diesel to the barges in the night of 23.05.2006 around 11.00 p.m. Based on the information, the SIIB (Import) made necessary arrangements for conducting the search in the night of 23.5.2006 itself. The Customs staff of the joint-sea patrolling boat of R & I Division,, of Preventive Commissionerate was contacted and additional staff from the Docks Intelligence Unit of Rummaging & Intelligence Wing was also taken to join this operation.After confirming the exact location of the vessel the officers of SIIB (Import) along with members of the NGO, as independent Panchas, left towards Chinai Tekdi and reached the spot at about 11.45 p.m. After locating the suspect supply vessel, the team of officers went near the supply vessel, they noticed a Barge was anchored alongside the supply vessel. On seeing the Customs party, the Barge quickly started to leave the supply vessel after removing the pipe from the supply vessel through which they had been receiving diesel. The Customs team immediately chased the barge and after a lot of warnings, the barge was apprehended. A closer inspection showed the name of the Barge to be ML Anchor. The Customs staff then boarded the barge and caught hold of the Tandel who gave his name as Viplav Kumar Rai @ Sunil Rai and after questioning he accepted that he had purchased 40 MTs of High Speed Diesel from the supply vessel Seal Bulk Toota and was running away to avoid being caught re-handed.Some of the Customs staff were asked to remain on the barge and guard the staff members of the barge along with Tandel Shri Viplav Kumar Rai @ Sunil Rai. The remaining staff boarded the supply vessel Sea Bulk Toota with two independent Panchas (members of NGO). After boarding the supply vessel the Custom officers got hold of the Chief Engineer, who was standing on the Deck and went to the Master of the Vessel where both of them were subjected to interrogation. After some time the Chief Engineer of the Vessel, Shri Errol Tennyson, accepted that he had sold 40MTs of HSD to the Barge ML Anchor and further admitted that earlier also he used to purchase HSD for his vessel during his Mumbai High voyage and by selling the same to Barges he used to make money.After this it was decided to search the barge, ML Anchor, thoroughly. During the search of the Barge it was found that the Barge had purchased diesel which was found to be stored in the hatch of the barge; which as admitted by the Chief Engineer of the supply vessel was sold to Barge Anchor from the vessel Sea Bulk Toota. During the search of the barge US$ 18600/- was recovered from a gunny bag of rice in which it had been concealed and was to be given to the Chief Engineer of the vessel Sea Bulk Toota for the diesel received by the barge but which could not be given due to the raid by Customs party.After this the team of Customs Officers along with the independent Panchas escorted the Tandel of the barge, Shri Viplav Kumar Rai, to the supply vessel Sea Bulk Toota and while two officers stood guard near the Tandel of the barge, the remaining staff along with the Panchas commenced the search of the supply vessel, Sea Bulk Toota, which resulted in the recovery of unaccounted foreign currency of US$ 27050 from the cabin of the Chief Engineer Shri Errol Tennyson. The currency had been cleverly concealed amongst readymade garments in a black coloured Zipper bag in the Cabin of Shri Errol Tennyson. Preliminary interrogation of Chief Engineer Shri Errol Tennyson revealed that this money was the sale proceeds of the sale of diesel on earlier occasions. All the foreign currency amounted to US $ 45,650.00 equivalent to Rs.20,55,000/-(approx.), the barge M.L. Anchor along with 40,000 liters of diesel and the vessel Sea Bulk Toota along with 1,35,000 litres of diesel (as declared by Chief Engineer Shri Errol Tennyson) were taken over and seized under the provisions ofIndian Customs Act, 1962read withForeign Exchange Management Act(hereinafter referred to as FEMA). Total quantity of the diesel seized was 1,75,000 litres valued at Rs.36,75,000/- (CIF) and having estimated Market Value of Rs.70,00,000/-. The value of the barge M.L. Anchor was around Rs.10,00,000/- (as declared by Tandel Shri Viplav Kumar Rai) and of the Vessel Sea Bulk Toota was around Rs.3 Crores (as verbally declared by the Captain of the Vessel). After recording statements of various persons, the adjudicating authority issued show cause notices to all the appellants directing them to show cause as to why :[ I] The aforesaid seized 44.11 MTs of HSD involving duty of Rs. 5,37,412.88 as per Annexure-F, should not be confiscated absolutely underSection 111(d),111(f)&111(h)of the Customs Act, 1962 read with the provisions of Foreign Trade Policy (2002-07).[ii] The 3.6 MTs of diesel stored in the supply vessel M.V.Sea Bulk Toota over and above 45 MTs declared on arrival on 23.05.2006 at Mumbai and 102.197 MTS purchased on 23.05.2006 be held liable to confiscation underSection 111(d),111 (f)and111(h)of the Customs Act, 1962 read with the provisions of Foreign Trade Policy (2002-07) and since no duty was paid on the illegally imported diesel oil of 3.6 MTs, why the duty amounting to Rs.43,860.30 as detailed in Annexure-G should not be recovered from M/s. Sea Bulk Ofrfishore Dubai LLC., Post Box No.32387, Dubai, UAE, the owners of Vessel Sea Bulk Toota, being the de facto importers of the of HSD, underSection 28of the Customs Act, 1962 why interest on the duty amount not paid should not be recovered underSection 28ABof the Customs Act, 1962.[iii] The 147 MTs of diesel stored in supply vessel Sea Bulk Toota in which the smuggled HSD were mixed in such manner that the smuggled HSD cannot be separated should not be confiscated under the provisions ofSection 120 (2)of Customs Act, 1962 and the Customs Duty Rs. 17,90,966.47 as detailed in Annexure-II leviable should not be recovered.[iv] The foreign currency amounting to USD 27050 recovered from the cabin of the Chief Engineer Shri Errol Gilbert Tennyson being the sale proceeds of the past sale-purchase of smuggled diesel should not be confiscated underSection 121of the Customs Act, 1962.[v] The foreign currency amounting to USD 18,600 recovered from the barge M.L. Anchor belonging to shri Viplav Kumar Rai which was to be given to the Chief Engineer of the supply vessel M.V. Sea Bulk Toota as payment towards the purchase of smuggled HSD and was attempted to be smuggled out of India subsequently seized by Customs should not be confiscated underSection 113of the Customs Act, 1962.[vi] The supply vessel M.V. Sea Bulk Toota valued at Rs.8,31,67061.00 (Eight Crores thirty one lakhs sixty seven thousands sixty one only) and the barge M.L. Anchor valued at Rs. 10 lakhs (Ten lakhs only) should not be held liable to confiscation underSection 115of the Customs Act, 1962.[vii] Penalty underSection 112(a)of the Customs Act, 1962 should not be imposed on Shri Mohammed Ali Abu baker Shaikh, Shri Abdul and Shri Ashok Sasthe (yet to be apprehended).[viii] Penalty underSection 114as well asSection 112(a)& (b) of theCustoms Act, 1962should not be imposed on Shri Viplav Kumar Rai, the Tandel of the barge M.L. Anchor.[ix] Penalty underSection 112 (a)& (b) of theCustoms Act, 1962should not be imposed on Shri Errol Gilbert Tennyson (Chief Engineer of the supply vessel M.V. Sea Bulk Toota) and Shri Vivencio Bartolini (Captain of the supply vessel M.V. Sea Bulk Toota) and/or any other persons(s) concerned with the said goods, for their act of omission and commission in relation to the said seized goods and for the smuggling of earlier goods, which are not available and which was cleared illegally without payment of Customs duty.[x] Shri Mohammed Ali Abu baker Shaikh, Shri Abdul, Shri Ashok Sasthe (yet to be apprehended), Shri Viplav Kumar Rai, the tandel of the barge M.L. Anchor, Shri Errol Gilbert Tennyson (Chief Engineer of the supply vessel M.V. Sea Bulk Toota) and/or any other person/s concerned with the said goods are required to state specifically in their written explanation, whether they wish to be heard in person by the Adjudicating Authority viz. Commissioner of Customs (Import), Mumbai before the case is adjudicated.All the appellants herein contested the show cause notice on various grounds and the adjudicating authority after considering the submissions made by the appellants, after allowing cross examinations, as sought wherever possible, came to conclusion and passed the following order:-The aforesaid seized 4.11 MTs of HSD, valued at Rs. 14,23,623.65 involving duty of Rs.5,37,412.88 is confiscated absolutely underSection 111(d),111(f)&111(h)of the Customs Act, 1962, and the sale value of the HSD sold to M/s. BPCL is appropriated towards its value.The 3.6 MTs of smuggled diesel, valued at Rs.1,16,187.82 left behind in the supply vessel M.V. Sea Bulk Toota, is also confiscated underSection 111 (d),111(f)and111(h)of the Customs Act, 1962. Since trhis quantity has already been provisionally released (mixed with legally acquired HSD) against bond and BG.I impose a fine of Rs.50,000/- (Rupees Fifty Thousand only) in lieu of confiscation underSection 125of the Customs Act, 1962. Since no duty was paid on this illegally imported diesel oil of 3.6 MTs, the duty amounting to Rs.43,860.30 is also required to be paid. Since the vessel is owned by M/s. Sea Bulk Offshore Dubai LLC they have to pay this fine and duty.They will also be required to pay the interest on the duty amount underSection 28ABof the Customs Act, 1962.The 147 MTs of diesel, valued at Rs.47,44,336.35 stored in supply vessel Sea Bulk Toota in which the smuggled HSD was mixed in such a manner that the smuggled HSD could not be separated, is confiscated under the provisions ofSection 120(2)of Customs Act, 1962. Since they have already been released provisionally against bond Rs. 8.86 crores and BG of Rs. 2.20 crores I impose a fine of Rs. 20,00,000/- (Rupees Twenty Lakhs only) in lieu of confiscation, under Section 125 of the Custroms Act, 1962 and appropriate the same from the Bank Guaranteee. No duty is required to be paid on this quantity if it has been consumed in the normal course of letgitimate use.The foreign currency amounting to USD 27,050/- recovered from the cabin of the Chief Engineer Shri Errol Gilbert Tennyson being the sale proceeds of the past sale is absolutely confiscated underSection 121of the Customs Act, 1962.The foreign currency amounting to USD 18,600/- recovered from the barge M.L. Anchor belonging to Shri Viplav Kumar Rai which was to be given to the Chief Engineer of the supply vessel M.V. Sea Bulk Toota as payment towards the purchase of smuggled HSD and was attempted to be smuggled out of India, is absolutely confiscated underSection 113and121of the Customs Act, 1962.The supply vessel M.V. Sea Bulk Toota valued at Rs. 8.31,67,061/- (Eight Crores Thirty one lakhs sixty seven thousands sixty one only) is confiscated underSection 115of the Customs Act, 1962. Since it has already been released against bond of Rs. 8.86 crores and a BG of Rs. 2.20crores, I impose a fine of Rs. 1,00,00,000/-(Rs. One Crore only) and appropriate the same from the BG.The barge M.L. Anchor valued at Rs. 10,00,000/- (Ruppes Ten lakhs only) is confiscated underSection 115of the Customs Act, 1962. Since it has already been released against bond of Rs.7.5 Lakhs and Revenue Deposit (R.D.) of Rs. 1.5.Lakhs, I impose a fine of Rs. 1.50,000/- (Rupees One Lakh Fifty Thousand Only) and appropriate the same from the R.D.
I impose a penalty of Rs. 2,00,000/- (Rupees Two Lakhs only) underSection 112(a)of the Customs Act, 1962, on Shri Abdul Subhan Abdul Rahim Shaikh
I impose a penalty of Rs. 5,00,000/- (Rupees Five Lakhs only) underSection 112(a)of the Customs Act, 1962, on shri Ashok Sasthe.I impose a penalty of Rs. 1,00,000/- (Rupees One Lakh only) underSection 112(a)& (b) of theCustoms Act, 1962, on Shri Viplav Kumar Rai, the Tandel of the barge M.L. Anchor.No penalty is imposed on Shri Vivencio Bartolini Degollacion (Captain of the supply vessel M.V. Sea Bulk Toota)
No penalty is imposed on shri Mohammed Ali Abu Baker Shaikh.No penalty is imposed on M/s. Sea Bulk Offshore LLC, Dubai
All the appellants are in appeal against the above said order.3. In Appeal No. C/693/07:- Shri Anil Balani Ld. Counsel appearing for the appellant in this case submits that the entire order of imposition of penalty on the appellant is wrong. He submits that the entire case is based on the panchanama dt. 23.5.2006 and draws our attention to the same. It is his submission that the current appellants signature was not taken on the panchanama even though he was present. It is his submission that there was also no signatures on the panchanama. It is his further submission that panch witness namely Shri I.G. Khandelwal was an informer and hence the reliance placed by the adjudicating authority on the panchanama is vitiated and panch/witness cannot be called as a reliable witness. It is his submission that one of the panch witness was not made available for cross examination on the ground that he was not available. Ld. Counsel draws our attention to the statement of the appellant and submits that no one has seen any transfer of diesel from vessel to barge. He submits that lower authorities were aware that rough log book is maintained and subsequently log book is finalized. To support this proposition, he draws our attention to various portions of the statement of Chief Engineer i.e. current appellant. The Ld. Counsel draws our attention to the statement of the captain of the ship to indicate that entire crew was present on the date when the vessel was intercepted along with the barge but no statements of any member of crew was recorded. He draws our attention to the statement of the representative of the Sea Bulk Toota (ship line), to submit that they were informed about the movement of the ship and they were maintaining correct records of consumption of the diesel. It is his submission that the entire movement of the ship was on the coastal run and all the documents in relation to this was submitted with the Revenue department. He draws our attention to the submissions of the appellant as to show that there was no direct evidence regarding sale and purchase of diesel. It is his submission that the entire case has been built up by the revenue authorities without considering the fact that the diesel which was alleged to have been sold is not a smuggled diesel but the diesel which was saved by the ship during its coastal run. It is his further submission that the statements of the appellant was retracted by him on 2.06.2006 when he preferred an application for bail on his arrest. The basic thrust of the Ld. Counsel was that Revenue has not discharged its duty towards the fact that the diesel which was found in the barge was imported illegally. It is his submission that the provisions ofSection 11A,11B,11C&11Dare attracted towards the notified goods.He submits that HSD/Diesel is not notified under Section 11Ds andSection 123of the Customs Act, 1962. After reading the sections, he submits that the burden was on the revenue to prove that the diesel was of smuggled nature and department has not discharged the burden. It is his further submission that the foreign currency which was seized from the current appellant cannot be confiscated as it is not proved beyond doubt that the said currency is the outcome of the sale proceeds of illegally imported goods. For this proposition he relies upon the Tribunal decision in the case ofRamchandra Vs. Collector of Customs[1992 (60) E.L.T.277 (Tribunal)] as regards the burden is entirely on the department to prove that the diesel was of smuggled nature and no evidence to brought on record he relies upon the Bombay High Court decision in the case ofCommissioner of Customs (Preventive), Mumbai Vs. Aakash Enterprisesas reported at [2006 (205) E.L.T.23 (Bom.),]State of Maharashtra Vs. Genu Yeshwant Divateas reported at [1988 (36) E.L.T 410 (Bom.)]. It is his further submission that the authorities had drawn the samples of the diesel and sent it for analysis. It is his submission that the test reports of such sample was not given to the appellant. He submits that the said test report would indicate, as to whether diesel, which was seized from the barge is of imported nature or is of indigenous nature. It is his submission that in the absence of any concrete evidence that diesel which was seized is of imported nature it cannot be held against the appellant, as the ship was on the costal run, always procured diesel, while on such costal run.4. The Ld. Jt. CDR on the other hand would read the order-in-original as regards the findings of the adjudicating authority in respect of this appellant. It his submission that the witnesses who appended the signature to the panchanamas were independent witnesses. It is his submission that of Shri Viplav Kumar Rai Tandel of the Barge had clearly given an inculpatory statement against this appellant. Ld. Jt. CDR would submit that the Mobile Phone of the appellant were seized and the phone numbers of the appellant was the same, as was given by the other persons and they were always in touch with this appellant for sale and purchase of illegal diesel. It is his submission that there is no explanation coming forth from the appellant as to how and when appellant got US $ 27050 which was recovered from his cabin. It is his submission there is a confirmation of purchase and sale of diesel by appellant, and the statement being un retracted, it cannot be said that this appellant is innocent. He reads the definition of the imports and submit that the issue is squarely covered within the provisions of theCustoms Act. It is his submission that various people in their statement have recorded that this appellant was in the habit of selling diesel, for this submissions, he draws our attention to the various statements. He submits that diesel which is confiscated, is smuggled can be ascertained from the statement of various persons who recorded that they are purchasing smuggled diesel from this appellant. It is his submission that the copy of the panchanama as recorded on the date of seizure was handed over to the captain of the ship and need not be given to the current appellant. It is his submission that there is no need for signature of this appellant on the panchanama. The Ld. Jt. CDR submits that in the absence of retraction of the statements, the smuggled nature of the confiscated goods stands proved. He relies upon the decision in the case of K.I. Pavunny Vs. Asstt. Collr. (HQ), C.EX. Collectorate, Cochin as reported at [1997 (90) E.L.T. 241 (S.C.)]andSurjeet Singh Chhabra Vs. Union of India[1997 (89) E.L.T. 646 (S.C.)]. He submits that the burden of proof in the case of non-notified goods also shifted to the person/assessee when it is proved by corroborative evidence that the goods are of smuggled nature. It is his submission that in this case the purchasers have clearly indicated in their statements that they are purchasing smuggled diesel from this appellant.5. The Ld. Counsel by way of rejoinder would submit that the reliance on the statement of third mate is in correct. It is his submission that captain and Chief Engineer were in custody and their statements were not recorded and were not corroborated by confirming the same by further statement of the captain/chief engineer. It is his submission that lower authorities have not confronted the statement of 3rd Mate with captain/chief engineer. It is his submission that the entire statements of other persons which has been relied upon by the Jt. CDR is only here say. He submits that recovery of the mobile phone as has been submitted that by the Jt. CDR is in correct and in fact the mobile phone were handed over by the appellant himself. As regards the corroborative statements of the purchasers of the diesel as to being of smuggled nature, it is his submission that the said statement was recorded almost after six months of the incident. It is his submission that no log entries of the ship/vessel and the barge was checked by the authorities.6. We considered the submissions made at length by both sides and perused the records. It is seen from the records that it is undisputed that the quantity of the diesel i.e. 44.11 MTs of diesel was seized from the barge M.L. Anchor in night of 23/24.05.2006. It is also seen from the records that the high speed diesel of 44.11 MTs was found in barge M.L. Anchor. There is nothing on the record to show what was the business of M.L. Anchor of being near the vessel MV Sea Bulk to Toota. The Tandel as well as the other persons of the barge M.L. Anchor had confirmed that they were near the ship/vessel M.V. Sea Bulk Toota when they were intercepted. If that be so, the presence of unaccounted diesel on barge M.L. Anchor is the question which is unanswered. The findings of the adjudicating authority as regards the quantity of the diesel on the ship after the discharge of 44.11.MTs to barge M.L.Anchor seems to be tallying with the records which were produced by the Sea Bulk Toota before the authorities. In short, the presence of 44.11 MTs of diesel on barge M.L. Anchor remains unaccounted for in the records of sea M.V. Sea Bulk Toota. Hence the conclusion of the adjudicating authority that the excess unaccounted diesel of 44.11 MTs on the barge M.L.Anchor was correct. As regards, the penalty imposed on this appellant, the findings of the adjudicating authority are as under:-I now come to the penal provisions and the role of different individuals/companies.Mr. Errol Gilbert Tennyson, Chief Engineer of Vessel M.V.Sea Bulk Toota- In his statement recorded on 24.05.2006 he has admitted to having diverted around 40(actually 44.11)MTs. of HSD to the barge M.L. Anchor for a consideration of a US $ 18600/-, and also that the currency of US $ 27050/- recovered from his cabin was the sale proceeds of smuggled diesel sold on previous occasions. He, however, changed his stand when he was bought from Jail on remand (after his arrest ) for further interrogation on 31.05.2006 and admitted to only the current deal of sale of 40 Mts.of diesel. In his bail application dated 12.06.2006 he denied everything, contending that the statements recorded were under force and duress. But his denial/retraction is of no avail in view of the overwhelming documentary and corroborative evidence of acquiring and selling of smuggled HSD. Further, his first statement was recorded on 24.05.2206 and he has retracted his statement after nearly 3 weeks. His statement dated 24.05.2006 is also corroborated by the statement dated 24.05.2006 of Shri Viplav Kumar Rai, the person incharge of the Barge of the M.L. Anchor about the sale of smuggled diesel. It is also corroborated by the statement dated 15.11.2006 of Shri Abdul Subhan Abdul Rahim Shaikh who was the middle-man between Mr. Tennyson and the buyer Shri Ashok Sasthe. In fact Shri Abdul was traced only on the basis of the mobile phone number of Shri Abdul provided by Mr. Tennyson. The telephone records obtained from the Mobile Telephone Company have established that on the night of 23/24 May,o6, Mr. Tennyson, Shri Viplav Kumar Rai and Shri Abdul were in a constant touch with one another at the time when the transfer of smuggled diesel was taking place. The statement dated 01.06.2006 of Mr. Reuben James S. Cruz 3rd Mate of the vessel M.V.Sea Bulk Toota also corroborates the happenings on 23/24 night which resulted in the apprehension of the two vessels while transferring the smuggled diesel, as also the recovery of foreign currency of US $ 27050/- from the cabin of Mr. Tennyson. The representative of the owner of M.V. Sea Bulk Toota, Captain R.S. Likhari, also confirmed in his statement dated 31.05.2006 that there was no way through which Mr. Tennyson could have legally acquired the foreign currency US $ 27050/- recovered from him. Thus the retraction of the statement of Shri Tennyson cannot be accepted. Retraction without evidence of duress or coercion do not deflect from evidentiary value of statements, specially if facts stated there in are corroborated by other evidence. In the case of Kirshnand S. Bhatt Vs. Commr. (2002 (148) ELT 492 (Tri.Mumbai) it was held that the retraction of statement could not be upheld on ground of duress as no representation was made against the officer who allegedly committed duress. There is no evidence that in the instant case Shri Tennyson and made any representation or complaint against any investigating officer who allegedly used threat, coercion or duress to record his statement. The above decision of the CESTAT has been confirmed by the Apex Court as reported in 2003 (155) ELT 157A (SC).A similar view has been upheld by the Madras High Court in the case ofDy. Director Narcotics Control Bureau Madras Vs. Senna K. Sevan2003 (159) ELT 62 Madras. Thus, the role of Mr. Tennyson in acquiring/transporting and disposing smuggled HSD is established beyond doubt making him liable for penal action underSections 112 (a)& (b) of theCustoms Act, 1962.We find from the records that the recovery of foreign currency of US $27050, from this appellants cabin remains totally unexplained till date. The fact that the current appellant as well as the entire staff has been paid salary in Indian rupees remains undisputed. We find that the entire submission made by the Ld. Counsel and in the appeal memorandum, the presence of the foreign currency is undisputed and there is no explanation from where this amount has come from. The entire defense of this appellant is on the ground that the statements given by him are retracted and he was not given the cross examination of one of the panch witnesses. In short, the current appellant is trying to defend the case by assailing adjudicating authoritys findings, only on technical grounds. It is seen from the records that the statements of this appellant was recorded on the day of seizure. It is the submission that the said statement was retracted. We find the said statement was retracted very meekly in his bail application. The said bail application is also not signed by him. Further, we find that there is nothing on record that the current appellant tried to submit any defence from the jail. We find that the statement of Shri Viplav Kumar Rai, in charge of the barge, that he had come to purchase the unaccounted/smuggled diesel from the vessel M.V. Sea Bulk Toota. It is also noticed from the statement of the various persons, that this appellant was always in touch with those people as regards sale of diesel from the vessel. We also find that the reliance placed by the adjudicating authority on the various other statements, including this appellant, clearly indicate that this appellant was in the business of sale of the diesel from the said vessel. It is to be noted that this is also corroborated from the fact of recovery of foreign exchange to the tune of US $ 27050 from his cabin. The insistence of the Ld. Counsel to verify the log book of the ship line and relied upon the documents, will not be of any use for the defense, as the presence of unaccounted diesel, and the presence of unexplained foreign exchange, will clearly indicate that this appellant was in fact selling diesel from the vessel. We find that all the case laws which were relied upon by the Ld. Counsel will be of no use, as the diesel is notified as canalized item and import of the same is restricted one. If an item is under restricted category, the provisions ofCustoms Act, will apply to it. In view of these findings, we hold that the reliance placed by the Ld. Counsel on the various case laws, as regards the discharge of burden of proof is on the Revenue, is misplaced. As regards the sample drawn and sent for test, we are of the view that once statements of the appellant as well as the corroboration of the fact that the appellant was involved in purchasing and selling of illegal diesel, the test report of the samples drawn would be in consequential. We find that the provisions ofSection 11AtoSection 11Dwhich has been enacted by the legislature would clearly apply in this case, as the said diesel was seized from ferry wharf, which is a notified area. It is on record that, the appellant, after his release on bail, vide his letter dated 13.11.2006, has admitted that he is in the habit of selling diesel during the coastal voyage.7. In view of the above reasonings, in our considered view, in this appeal (No. C/693/07) the appellant has not made out a case and due to the fact that there was recovery of the foreign exchange and statements clearly implicating him, we find that the findings reached by the adjudicating authority as reproduced hereinabove are correct and does not require any interference. The absolute confiscation of foreign currency of US$ 27050/- is also upheld. The appeal is rejected.8. In Appeal No. C/700/07 :- Shri S.N. Kantawala Ld. Counsel appearing on behalf of the shipping lines submits that the M.V. Sea Bulk Toota is owned by the appellants. It is his submission that the adjudicating authority has invoked the provisions ofSection 115andSection 125of the Act, to confiscate the vessel and confiscate the diesel which was found on the said M.V. Sea Bulk Toota, that the adjudicating authority has erred in confiscating the diesel which was on the vessel and the vessel. It is his submission that the owners i.e. current appellant were unaware that the Chief Engineer i.e. Shri Errol Gilbert Tennyson was involved in such kind of illegal activities. He draws out attention to the findings at paragraph 84 (7) of the adjudicating authority. He draws our attention to the letter/instruction given by the current appellant to the staff of the vessel as regards the duties and liabilities. He submits that the said Mr. Tennyson, who was Chief Engineer had done all the misdeeds for his personal gain and the current appellant could not be held responsible for such acts and deeds.9. Ld. Jt. CDR submits that the current appellant has no case. It is his submission that the captain and the Chief Engineer were in-charge of the vessel M.V. Sea Bulk Toota. He reads the statement of Mr. Tennyson, the Chief Engineer to submit that the captain of the vessel was aware of illegal purchase and sale of diesel. It is his submission that such an activity of clandestine sale and purchase of unaccounted diesel could not have occured without the knowledge of the captain. It is his submission that the confiscation of the vessel and the diesel which was found on the vessel are liable for confiscation and redemption fine imposed is also reasonable.10. We considered the submissions made at length by both sides and perused the records. We find that in this case the appellant is in appeal against the confiscation of the vessel and the confiscation of the diesel which was found on the vessel. The current appellant is the owner of the vessel M.V, Sea Bulk Toota. As the owner of the vessel, the current appellant had vide their letter dt. 28.3.2005 had given clear cut instructions, which we may read:-It must be clearly understood that fuel oil stocks on board your vessel represent a large financial expenditure by either the customer or Seabulk Offshore. Any careless handling of the bunkers is therefore tantamount to gross negligence and any deliberate mishandling of the bunkers is tantamount to theft.Responsibility :1. The Master is responsible for ensuring that his vessel has adequate stocks of fuel oil on board for the forthcoming voyage. He must ensure that the quantities shown in his Daily Reports are as accurate as possible. He must also ensure that any large discrepancies observed are immediately reported to Seabulk Offshore.2. The Chief Engineer is fully responsible for maintaining an accurate account of fuel oil received, discharged, consumed and remaining on board the vessel.3. The Master and Chief Engineer share a common responsibility to manage the bunkers properly and to be able to account accurately to both the Customer and to Seabulk Offshore for the fuel oil supplied to the vessel.Fuel Oil Consumption:1. Accurate determination of fuel oil consumption and of fuel oil remaining on board the vessel can be made only by taking tank soundings.2. Actual fuel oil consumption rates can vary greatly and estimated fuel oil consumption rates are not to be relied upon for accuracy over an extended period of time between soundings.3. Fairly accurate estimates of fuel consumption rates can be achieved by frequent monitoring of consumption at various engine RPM, load conditions, etc., then drawing up a graph reflecting the results.Fuel Oil Soundings:1. The Chief Engineer is to witness the actual soundings of all fuel oil tanks and ensure accurate readings are recorded in the log. The Chief Engineer should not delegate Allowing crews to provide your sounding reading is dangerous.2. Fuel oil soundings should be taken at weekly intervals, even while at sea when possible.3. Difference between estimated fuel oil consumption and the actual amount should be relatively small and may be shown as a fuel oil correction.4. Large differences indicate a serious flaw in monitoring and must be reported and investigated.5. Most customers will request the immediate relief of the Master and Chief Engineer if a difference of 5% over or under the recorded log readings. Seabulk endorses that policy as well.Fuel Oil Bunkering:1. Fuel oil soundings should be taken before and after each bunkering.2. Any discrepancies observed during bunkering are to be reported immediately.3. In the event of a short delivery (i.e. there is a difference between the bunkers actually received and the quantity shown on the delivery receipt) then a note of protest is to be made and delivered to the bunker supplier. The bunker receipt should only be signed if note is written on the receipt clearly stating that it has been signed under protest.Unauthorized Fuel Oil Transfers:1. Seabulk Offshore and its customers take a very serious view about unauthorized fuel oil transfers and deliberate short loading of fuel oil.2. Customers will usually off-hire the vessel and in most cases terminate the charter if a serious discrepancy is noted or if an unauthorized transfer is discovered.3. Seabulk Offshore reserve the right to prosecute any individual believed to be involved in unauthorized fuel oil transfers or short loadings.4. Seabulk Offshore may also report an individual to his home state Maritime Administration if he is found to be negligent in the performance of his duties with respect to the receipt, transfer, storage or use of a vessels bunkers.5. In Singapore or on Singapore Registered vessels fuel theft means a JAIL SENTENCE and STROKES of the RATTAN. Make sure it does not happen on your vessel. You have been warned.It can be noticed from the above reproduced instructions that all the crew were instructed regarding the misdeeds that should not be done by them. We also see from the records that the purchasers of the said unaccounted diesel had clearly stated that they were dealing with Chief Engineer. We find from the records that Mr. Tennyson, the Chief Engineer, is one of the employees responsible for maintaining accurate account of diesel and shared common responsibility of managing bunkers. The provisions ofSection 115are very relevant in this case and are read:-Confiscation of conveyances (1)The following conveyances shall be liable to confiscation :-(a) any vessel which is or has been within the Indian customs waters, any aircraft which is or has been in India, or any vehicle which is or has been in a customs area, while constructed, adapted, altered or filtered in any manner for the purpose of concealing goods;(b) any conveyance from which the whole or any part of the goods is thrown overboard, staved or destroyed so as to prevent seizure by an officer of customs;(c) any conveyance which having been required to stop or land undersection 106fails to do so, except for goods and sufficient cause;(d) any conveyance from which any warehoused goods cleared for exportation, or any other goods cleared for exportation under a claim for drawback, are unloaded, without the permission of the proper officer;(e) any conveyance carrying imported goods which has entered India and is afterwards found with the whole or substantial portion of such goods missing, unless the master of the vessel or aircraft is able to account for the loss of, or deficiency in, the goods.(2) Any conveyance or animal used as a means of transport in the smuggling of any goods or in the carriage of any smuggled goods shall be iable to confiscation, unless the owner of the conveyance or animal proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the conveyance or animal.Provided that where any such conveyance is used for the carriage of goods or passengers for hire, the owner of any conveyance shall be given an option to pay in lieu of the confiscation of the conveyance a fine not exceeding the market price of the goods which are sought to be smuggled or the smuggled goods, as the case may be.It can be noticed from the above reproduced section that the conveyance i.e. the vessel could be confiscated under the provisions ofSection 115(2)of the Customs Act, 1962, only if there is knowledge of the illegal activity. We find that the adjudicating authority in his order-in-original has held as under.-M/s. Sea Bulk Offshore, Dubai LLC- They are the owners of the vessel M.V. Sea Bulk Toota. They were not involved in the smuggling. In fact, they had given clear instructions to the Captain vide letter dated 28.3.2005 not to illegally sell any diesel from the stocks. Thus no penal liability can be imposed on them.We find with above findings, the adjudicating authority has proceeded to confiscate the vessel under the provisions ofSection 115. We are of considered view that the Chief Engineer being one of the responsible person responsible for maintaining correct account of fuel, he can be held as agent of the current appellant. Hence confiscation of the vessel is upheld but the redemption fine imposed is very excessive. Considering the findings of the adjudicating authority as reproduced above and that the chief engineer has kept the master and owners in dark, for his personal gain, in the facts and circumstances of the case, we are of the considered view that a token amount should be imposed as redemption fine in lieu of confiscation. To meet the ends of justice, we reduce the redemption fine imposed as the appellant to Rs. 5,00,000/- (Rupees five lakhs only). Subject to above modification the appeal is disposed off.11. As regards the confiscation of the diesel which was found on the M.V. Sea Bulk Toota, we are of the considered view that it is brought on records that the vessel had purchased this diesel, from the shore and evidences were produced before the adjudicating authority. Since these evidences clearly indicate that the purchases were legal and legitimate, the said quantity of diesel on the vessel Sea Bulk Toota cannot be held as offending goods. Confiscation of the said diesel found on M.V. Sea Bulk Toota is unwarranted . As such, the confiscation of the 147MTs of diesel is liable to be set aside and we do so.12. Accordingly, the appeal filed by Sea Bulk Offshore is disposed off as indicated hereinabove.13. In Appeal No. C/740/07 :- The Ld. Counsel appearing for the appellant submits that this appeal is filed by the appellant who is considered as owner of the barge. He draws our attention to the order-in-original more specifically to paragraph No.6 wherein it is mentioned that Shri Ashok Sasthe was the owner of the Barge. It is his submissions that the current appellant i.e. Ashok Sasthe was not owner of the barge. He draws our attention to paragraph 67 to submit that he was not the owner at the time of seizure, and actual owner turned out to be Shri Abdul Rahim Shaikh and the barge was released provisionally to him. It is his submission that the adjudicatingauthority has imposed a penalty of Rs. 5.00 Lakhs on the current appellant on the ground that the entire arrangement of purchase and sale of diesel was done at his instance. He submits that the applicant had sought cross examination of the various persons to defend his case but none was granted, hence there is a violation of principles of natural justice.14. Ld. Jt. CDR on the other hand would submit that the current appellants address was not given, and he was always in touch with the Tandel of the vessel of Shri Viplav Kumar Rai. It is the submission of the Jt. CDR that the Tandel Shri Viplav Kumar Rai had in a statement recorded inSection 108had given Mobile Phone number of the current appellant and it turned out to be correct. It is his submission that the current appellant remained absent and never responded to the summon sent to him. In the absence of any justification from the current appellant, penalty imposed on him is correct.15. We considered the submissions made by both sides and perused the records. The adjudicating authority while coming to the conclusion that the current appellant has to be penalized, held as under:-Shri Ahsok Sasthe His name first cropped up while recording the statement of Shri Viplav Kumar Rai on 24.05.2006 when he said that he was working on the instructions of one Shri Ashok Sasthe and that the foreign currency of US$ 18600 was also arranged by Shri Ashok Sasthe. Shri Abdul Subhan Abndul Rahim Shaikh, in his statement dated 15.11.2006, has also referred to shri Ashok Sasthe on whose behalf he was coordinating with Mr. Tennyson the chief Engineer of M.V. Sea Bulk Toota. The Mobile telephone records of Shri Viplav Kumar Rai. Mr. Tennyson, Shri Ashok Sasthe and was in constant touch with Shri Viplav K. Rai @ Sunil. Shri Rai. He made at least 6 calls on the night of 23/24.05.2006 to Shri Viplav Rai and further two calls were also made from shri Viplavs Mobile No. 9821948563 to Shri Ashok Sasthe (9324242596). Shri Viplav also made call to the Chief Engineer Shri Errol Tennyson (9821116462) at 21.36.32 Hrs. on 23.05.06 and in response, Shri Errol Tennyson replied by making call to him at 21.50.54 Hrs. & 22.04.03 Hrs. on the same night. There were 3 number of calls between 8 pm and 10.30 pm from the Mobile number of Shri Abdul Subhan Abdul Rahim Shaikh (9870078645) to Shri Ashok Sasthe on the night of 23.05.2006. Thus the statements of Viplav Kumar Rai, and Shri Abdul Subhan Abdul Rahim Shaikh have been corroborated by the telephone records. Hence the role of Shri Ashok Sasthe in the smuggling is established as the one who provided the money to Viplav Kumar Rai and arranged for the purchase of the smuggled diesel. He is, therefore, liable for penal action underSection 112 (a)of the Customs Act, 1962, for abetment.It is seen from the records that the above findings of the adjudicating authority has been on the ground that this appellant had given the Tandel Shri Viplav Kumar Rai an amount of US $ 18500/- for purchase of diesel from Mr. Tennyson. It is undisputed that the said amount of US$ 18500/- was recovered from the barge and Tandel Shri Viplav Kumar Rai categorically stated that this amount of US $ 18500/- was given by this appellant. It was for the current appellant to come forth and show evidence and defend that the said amount was not given by him. He has not done so. In the replies submitted by him and in the grounds of appeal, this appellant has only tried to defend by showing that he is not the owner of the barge. We find that the adjudicating authority has also held so, but the imposition of the penalty on the appellant is underSection 112(a)of the Customs Act, 1962. It is un-explained by the appellant even before us, as to where he got an amount of US $ 18500/- to be given to the Tandel for purchase of diesel. Even today, the Ld. Counsel has not given any proper justification. Shri Viplav Kumar Rai in his inculparory statement has categorically stated that this appellant is the person who has given the amount for purchase of diesel, from M.V. Sea Bulk Toota. On perusal of the record it is seen that the penalty has been imposed on the current appellant under the provisions ofSection 112(a)on the statements which has been recorded by the authorities of three different persons. There is no reason why all the three persons would lie and implicate the appellant16. Accordingly, in the facts and circumstances of the case, since the current appellant is implicated in various statements, as being the person in contact for sale and purchase of Diesel, the provisions ofSection 112(a)of the Customs Act, 1962 are applicable, hence there is no infirmity in the order imposing penalty.17. Accordingly, the penalty imposed on the appellant is uphed and the appeal is rejected18. In Appeal No. C/750/07 : - Shri G.B. Yadav the Ld. Counsel appearing for the appellant herein draws our attention to internal page 54 and the findings recorded against the current appellant. He submits that there is no evidence against the current appellant as being abettor of the smuggled diesel if any. He submits that the current appellant has acted as a middleman as a guarantor for payment. He submits that this appellant has no role to play in the smuggling, if any, hence penalty imposed underSection 112(a)is not applicable. It is his submission that, assuming but not accepting, that the appellant had role, there is no evidence that the said seized diesel was brought from a place outside India. It is the submission that the provisions ofSection 111of the Customs Act, does not apply, as diesel was seized in ferry wharf, and is not a Customs Notified area.19. The Ld. Jt. CDR on the other hand would submit that the statements given by this appellant is not attracted. He submits that the appellant has clearly stated that he was in touch with Mr. Tennyson for sale of 40MTs of diesel, which is admitted as being smuggled. It is the submission that this appellant had abetted the smuggling and hence penalties imposed on him is correct. In rejoinder, the Ld. Counsel submits that there is no proof of smuggling and if there is no smuggling there cannot be any abettement.20. We considered the submissions made by both sides and perused the records. The charge against this appellant is that he abetted in the smuggling of the diesel which was seized by the authorities. The findings of the adjudicating authority against the appellant is as under:-Shri Abdul Subhan Abdul Rahim Shaikh He has admitted in his statement dated 15.11.2006 that he was acting as a middle-man between Mr. Tennyson, the seller of the smuggled diesel and Mr. Ashok Sasthe, the buyer of the HSD. He was also collecting his commission. The Mobile Telephone Call details of shri Abdul have also confirmed his statement [para 39 above]. However, it is to be noted that he has admitted that he was aware that Mr. Tennyson was purchasing smuggled HSD oil from foreign going vessel at Mumbai High and used sell the same on arrival in Mumbai. Shri Errol Tennyson, Chief Engineer of the supply vessel Sea Bulk Toota has stated in his statement on 24.05.06 that one Abdul called him from Mobile number 9870078645 and enquired if he could sell some diesel and on being asked by Shri Abdul he (Tennyson) informed him that he could sell 40 Mt of the diesel. In another words, Shri Abdul knew that he was acting as a middle-man for sale/purchase of smuggled diesel oil. In other words, he abetted the offence of smuggling. His role also resulted in the actual sale of smuggled diesel from the vessel M.V. Sea Bulk Toota to the barge M.L. Anchor. Thus Shri Abdul Subhan Abdul Rahim Sahikh is liable for penal action for abatement underSection 112(a)of the Customs Act, 1962.It can be noticed that the appellant has himself gave a inculpatory statement that he is into arranging of sale and purchase of smuggled diesel. If that be so, then the penalty imposed underSection 112(a), of the Customs Act, 1962, is correct, as the appellant has abetted an act, which has rendered the goods liable for confiscation underSection 111of the Customs Act, 1962.21. In Appeal No. C/793/07 :- This appeal is filed by the Revenue against the Order-in-Original which dropped the proceedings initiated against Shri Vivencio Bartolini Degollacion, Captain of the vessel Shri M.B. Sea Bulk Toota and Shri Mohd. Ali Aboo Backer Shaikh. Ld. Jt. CDR submits that there was a specific information that the said Sea Bulk Toota was in engaged in selling smuggled diesel. It is his submission that there was no saving of diesel and no one has claimed the ownership of the seized diesel of 40MTs. He submits that statements of 3rd Mate clearly indicates that the captain was aware of the activities going on in the ship. He draws our attention to the various statements of crew to press home the point that the captain was aware of the entire deal. He relies upon the decision in the case ofGreat Eastern Shipping Co. Ltd. Vs. Union of India[2002 (150) E.L.T. 1403 Del.)]. He submits that, it is unacceptable, that as a captain of the ship, respondent Shri Vivencio Bartolini, Degollacion, could not claim that he was unaware of happenings. As regards the proceedings being dropped against Shri Mohd. Ali Aboo Backer Shaikh he submits that Mohd.Ali Aboo Backer Shaikh was in constant touch with Shri Viplav Kumar Rai, Mr. Errol Gilbert Tennyson and Ashok Sasthe, this would indicate that he had some role to play in respect of purchase and sale of the smuggled diesel.22. Shri N.D. George, the Ld. Counsel appearing on behalf of the respondent M. Vivencio Bartolini, Degollacion, submits that none of the persons has implicated the respondent except Shri Tennyson It is his submission that the vessel M.V. Sea Bulk Toota was on a coastal run. It is his submission that the confiscation of the diesel made by the authorities would not arise and if that be so, there cannot be any penalties imposed on this respondent. It was also submitted that there is no evidence, to connect the respondent with any activity of illegal sale and purchase of diesel.23. He relies upon the judgment of the Tribunal in the case ofCARL F. Peters Vs. Commissioner of Customs (Prev.)Mumbai [2001 (133) E.L.T. 580 (Tri.Mumbai)], Indoceanic Shipping Co. Ltd. Vs. Addl. Collector of Customs (P) [1993 (64) E.L.T. 196 (Bom.)], Fargo Marine Co. Ltd. Vs. Commissioner of Customs (Seaport), Chennai [2004 (176) E.L.T.347 (Tri. Chennai)].24. Mr. H.K. Prem Ld. Counsel appearing on behalf of Shri Mohd. Ali Aboo Backer Shaikh submits that they are not aware that department has filed an appeal. He submits that they were not served upon the copy of the appeal filed by the Revenue. On the specific direction of the Bench, a copy was served upon the Ld. Counsel, who fairly agreed to go through the same and make submissions. It is his submission that the current respondent is in no way connected to the incidence of the smuggling of the diesel. It is his submission that that evidence against this respondent is totally un corroborated and because he was communicating with Shri Viplav Kumar Rai , Mr. Errol Gilbert Tennyson and Shri Ashok Sasthe, it cannot be said that he had abetted in the illegal activities, if any.25. In rejoinder, the Ld. Jt. CDR submits that captain was in the knowledge of all activities those were taking place on the ship. It is his submission that though no incriminating documents or records were found from the cabin of the captain, vicarious liability lies on the captain hence he should be also penalized for abetting the smuggling.26. We considered the submissions made at length by both sides and perused the records. The findings of the adjudicating authority as regards the role played by the captain of the vessel and shri Mohd. Ali Aboo Backer Shaikh are reproduced as under:Mr. Vivencio Bartolini, Degollacion, Captain of the vessel M.V. Sea Bulk Toota So far as the role of captain is concerned, there is no direct evidence again him except for the statement of the Chief Engineer Mr.Tennyson saying the captain was also aware of the smuggling and that the captain was also receiving a share of the sales proceeds of smuggled diesel. In the show cause notice it has been mentioned in Para 8, that in the statement dated 24.05.2006 the captain had confessed that he had knowledge that the Chief Engineer was doing illegal sale of diesel for profit and that he was also aware about the sale of 40MTs of HSD to a Barge in the night of 23/24.05.2006 and that he did not deny that his Chief Engineer was purchasing the diesel in Bombay High from Vessels coming from UAE. However, if one peruses the statement dated 24.05.2006 of the Captain the picture that emerges is quite different. Relevant extracts of his statement are reproduced below:On being asked that the barge M.L. Anchor which was alongside his supply vessel when the customs approached his vessel, had taken 40 MTs HSD from his vessel, I state that it was my mistake that 40MT. Of diesel oil was pumped out of my supply vessel M.V. Sea Bulk Toota to a barge M.L. Anchor that to (sic) when I myself was present on the vessel and I could not notice the same (emphasis supplied).Q. The Chief Engineer Errol Tenyyson has stated in the statement that he had paid US$ 10,000/- to him as share of the profit which accrued after selling the diesel oil illegally without any valid document to the barge people?Answer :- This is not the profit but the money generated after the illegal sale of diesel oil. But I did not receive the amount and I do not know as to why he is telling lie.Q. Do you deny the statement made by your Chief Engineer, he used to purchase diesel at Mumbai High from the vessel coming from Dubai?Ans. No. I do not deny, however, I say that I did not see myself may be I must be sleeping at that time.(a) From the above, it does not appear that the show cause notice has properly extracted the gist of his statements. In fact, the Captain has nowhere admitted to the knowledge about his Chief Engineer indulging in smuggling of diesel and has also denied any share of the earnings. However, as a responsible Captain he has taken full responsibility for the actions of his crew including that of the Chief Engineer, as is obvious from his answer reproduced below:Yes, I have been informed now by you that my vessel M.V. Sea Bulk Toota has been seized by the Customs and I feel that for this my Chief Engineer is only responsible because he used to sell illegally diesel oil stored in the tank of my vessel without my knowledge and therefore even I am responsible for the same as I am the captain of the vessel.(b) None of the other noticees, kike Viplav Kumar Rai, Abdul Subhan Abdul Rahim Shaikh, Ashok Sasthe etc. have taken the name of the Captain as being involved in the smuggling. His telephone records also do not show any interaction with any of the other noticees. Further, though the Chief Engineer had mentioned that he was sharing the profits out of the sales proceeds of smuggled diesel with his Captain, no foreign currency or Indian Currency was recovered either from the person or the cabin of the Captain. However, it would be difficult to accept the proposition that whenever the Chief Engineer was transferring HSD from a sea going vessel (which admittedly happened at least on 4 occasions) and then transferring this smuggled diesel to another barge, the Captain remained unaware of this transaction specially when each transfer of HSD would require berthing of a vessel along side and also substantial time in affecting the transfer of HSD. However, in view of the fact that no one else has implicated the Captain except the Chief Engineer, and the allegation of the Chief Engineer regarding the Captains complicity have not been corroborated/verified through any other means, at most a suspicion can remain regarding the role of the captain. Thus, the most that can be said against the captain is that either he was duped by his Chief Engineer or that he turned a blind eye to the shady activities of his Chief Engineer. But this cannot be a ground for imposing any penal liability on him.Shri Mohd. Ali Aboo Backer Shaikh In the show cause notice the only evidence against Shri Moh. Ali is that Shri Viplav Kumar Rai had mentioned that he has used to also receive calls from Shri Mohd. Ali. Further, the telephone call details obtained form service provider show that the Mohd. Ali was in constant touch with Shri Viplav Kumar Rai, Shri Errol Gilbert Tennyson, Shri Ashok Sasthe and shri abdul Subhan Abdul Rahim Shaikh. But this, by self, is not sufficient to hold that he was in any way involved with either the smuggling of the diesel, its transportation or in financing the same. The smuggled diesel was procured by the vessel M.V. Sea Bulk Toota with the help of Mr. Tennyson and transferred to the barge M.L. Anchor operated by Shri Viplav Kumar Rai and the foreign currency US$ 18600/- was arranged by one Shri Ashok Sasthe. None of the persons, whose statements have been recorded, have indicated the involvement of Shri Mohd. Ali except from the statement of Shri Viplav Kumar Rai that he used to also get calls from him asking for the whereabouts of the barge. All this can, at most arouse suspicioun again Shri Mohd. Ali, but this cannot substitute evidence. Shir Mohd Ali has in his statement dated 8.6.2006, denied his involvement in any of the dealings relating to sale or purchase of smuggled diesel. Hence, I hold that no penalty is imposable on Shri Mohd. Ali because of lack of evidence.It can be noticed from the above reproduced portion of the impugned order, that no one had implicated the captain, as to that he was having knowledge of purchase and sale of illegal diesel oil, without any valid document. It would be worthwhile to mention here that the Chief Engineer has only stated that the captain of ship was always having share in the profit, it is seen that the captain of the ship has denied the receipt of any amount. It is also seen from records that when the cabin of the captain was searched, no incriminating documents or currency was found. It is also seen from records that none of the noticees other than Shri Tennyson had implicated the captain, in the various statements recorded. There is also nothing on record to indicate that the captain was communicating with other noticees. In view of this, we are of the considered view that the findings reached by the Ld. Commissioner in dropping the proceedings initiated against the captain are correct and are well reasoned one, and does not require any interference.27. As regards the proceedings dropped against, Shri Mohd. Ali Aboo Backer Shaikh, it is also seen that but for the allegation that he was in touch with Shri Viplav Kumar Rai, Mr. Errol G. Tennyson, Shri Ashok Sasthe, there is no other evidence to implicate him in this case. It is seen that none of the noticees had implicated or has said that he has financed the purchase and sale of illegal diesel. Hence we are of the considered view that the findings reached by the adjudicating authority for dropping proceedings initiated against this respondent is a well reasoned one and does not require any interference.28. Accordinglyf, all the appeals are disposed of as indicated hereinabove.(Pronounced in court on..)
(K.K.Agarwal)
Member (Technical)
(M. V. Ravindran)
Member (Judicial)
Sm30 |
ebc1520f-7cc6-5439-91f9-e9bd67d8eb3c | court_cases | Jharkhand High CourtKamal Kumar Patnaik And Anr vs The State Of Jharkhand And Anr on 6 November, 2017Author:S.N. PathakBench:S.N. PathakIN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 1074 of 2017
.....
1. Kamal Kumar Patnaik, son of Praful Patnaik
2. Debasish Chakraborty, son of K.K. Chakraborty
.... Petitioners
Versus
1. The State of Jharkhand.
2. The Deputy Commissioner, Jamshedpur.
.... Respondents
CORAM: HON'BLE MR. JUSTICE DR. S.N. PATHAK.
For the Petitioners : Mr. Anil Kumar Sinha, Sr. Advocate
Mr. Raunak Sahay, Advocate
For the Respondents : Mr. R.K. Shahi, JC to AAG
07/ Dated 6th November, 2017
Heard learned counsel for the petitioners and learned counsel for the
respondents.
2. The petitioners have approached this court with a prayer for quashing the
orders dated 20.02.2014 and 19.02.2014, whereby the respondents have rejected
the claim of the petitioners regarding full salary after exoneration.
3. The factual matrix in narrow compass is that petitioner No. 1 is working
as Assistant in the office of C.O. Dalbhumgarh and petitioner No. 2 is working
as Head Clerk in Chakulia Block. It has further been stated that a criminal case
was registered against Potka P.S. Case No. 60 of 2009 dated 23.08.2009,
corresponding to G.R. Case No. 2144 of 2009, underSections 467,468,471,420,408,409,120B,34IPC. The Police, after investigation, vide final form did
not find any materials against the petitioners and the Court, after hearing the
informant on 04.04.2014, accepted the final form and exonerated the petitioners.
The petitioners were put under suspension during pendency of the criminal case
vide letter dated 08.08.2009. It was specifically mentioned that vide order dated
20.02.2014and 19.02.2014, after perusing the police report, the order of
suspension was withdrawn and further order was passed regarding salary and
other allowances shall be taken only after conclusion of the Departmental
Proceeding. It is the specific case of the petitioners that on 03.05.2016, a
decision was taken that there is no material for initiation of Departmental
Proceeding against the petitioners and accordingly, it was decided that no
Departmental Proceeding is required to be initiated and period of suspension be
treated on duty and accordingly, petitioners are entitled for full payment of the2period of suspension. Thereafter, the petitioners made representation to the
authorities concerned for payment of entire dues of the petitioners for the period
08.09.2009 to 18.02.2014, when they were put under suspension since
subsistence allowances was not paid to the petitioner. As the representation of
the petitioners were rejected vide memo No. 1198 and 1199 dated 19.12.2016,
on the ground that since the attendance register was not signed by the petitioner
during the period of suspension., they are not entitled for any payment.4. Mr. Anil Kumar Sinha, learned senior counsel assisted by Mr. Raunak
Sahay, learned counsel for the petitioners strenuously urges that the petitioners
have been fully exonerated in the criminal as well as departmental proceeding,
they are entitled for full salary of the period of suspension. Learned senior
counsel further argues that as there was no material against the petitioner, there
was no need to initiate departmental proceeding. In view of such finding and in
view of Rule 97(2) of the Jharkhand Service Code, the petitioners are fully
entitled for salary of the said period. Learned senior counsel draws the attention
of the Court towards counter-affidavit filed by the respondents and submits that
the respondents have illegally and arbitrarily taken into consideration the
Jharkhand Government Servants (Classification, Control & Appeal) Rules, 2016
and have rejected the case of the petitioners on the ground that as per Rule 10(b)
of the said Rules, the petitioners are not entitled as they were not present in the
headquarter and did not sign the attendance register. Learned senior counsel
argues that the said Rule is contrary to Rule 97(2) and it is not a case that
petitioners have approached this Court with a prayer for subsistence allowance.
The petitioners have been fully exonerated in the departmental proceeding as
well as in the criminal proceeding and as such, they are entitled for the salary of
that period. Learned counsel places heavy reliance on the judgment reported in
the case ofPrasenjit Ghosh Vs. State of Jharkhand[2004 (2) JCR 201] and
submits that in view of the judgments passed in the aforesaid cases, the
petitioners are fully entitled for the salary of the period of suspension i.e. from
08.09.2009 to 18.02.2014 and as such, a direction be given to the respondents to
pay the salary of that period.5. Per contra counter affidavit has been filed. Mr. R.K. Shahi, learned JC to
AAG vehemently opposes the contention of the learned counsel for the
petitioners and argues that the petitioners are not entitled for the salary of the
period of suspension. Learned counsel draws the attention of the Court towards
Rule 10(b) of the Jharkhand Government Servants (Classification, Control &
Appeal) Rules, 2016 and argues that in view of that Rule, the petitioners were3required to be present in the headquarter and to mark the attendance register and
in absence of that, the impugned order has rightly been passed. Justifying the
impugned order, learned counsel for the respondents argues that the petitioners
are not entitled for the salary of the period of suspension.6. Be that as it may, having gone through the rival submissions of the
parties, this Court is of the considered view that that the cases of the petitioners
need consideration. The petitioners are fully entitled for the salary of the period
of suspension on the following grounds:-(i) The petitioners have been fully exonerated in the criminal case as well as
in the departmental proceeding.(ii) There is specific finding of the authorities that in absence of any material
fact against the petitioners, even the departmental proceeding cannot be
initiated and as such, they are entitled for full salary of the period of
suspension.Rule 97(2) of the Jharkhand Service Code reads as under:-"97(2) Where the authority mentioned in sub-rule (1),
is of opinion that the Government Servant has been
fully exonerated, or in the case of suspension, that it
was wholly unjustified, the Government servant shall
be given full pay and allowance to which he would
have been entitled has he not been dismissed,
removed or suspended, as the case may be."The same Rule finds place in Rule 11 of the Jharkhand Government
Servants (Classification, Control & Appeal) Rules, 2016. Rule 11 (3) of
the said Rules read as under:-"11. (3) Where the Disciplinary Authority is of the
opinion that the suspension was wholly unjustified,
the Government Servant shall, subject to the
provisions of sub-rule (8) of this Rule, be paid such
full pay and allowances to which he would have been
entitled, had he not been suspended. While making
such payment adjustment shall be made in respect of
subsistence allowance and other allowances already
paid."(iii) Going through the judgments cited by the learned senior counsel for the
petitioners, this Court is of the considered view that the same are fully
applicable in the cases of the petitioners. It is not open to the respondents
to read the Rule which convenient to them. The Rule which has been
placed by the learned counsel for the respondents is totally misconceived.
From perusal of Rule 11(3) of the 2016 Rules and Rule 97(2) of the
Jharkhand Service Code, it is crystal clear that when an employee is4exonerated, he is entitled for full salary. In case of the subsistence
allowance, when an order of suspension has been passed in which it has
been mentioned in expressed language that the petitioners are required to
be present in the headquarter, then the same has to be followed and the
petitioners are entitled for subsistence allowance. In the instant case, the
petitioners have been fully exonerated in the enquiries and as such, they
are fully entitled for the salary of the said period.7. As a cumulative effect of the aforesaid observations, rules, guidelines,
judicial pronouncements and legal propositions, the orders dated 20.02.2014 and
19.02.2014, whereby the respondents have rejected the claim of the petitioners
regarding full salary after exoneration, are hereby quashed and set aside. In view
of quashment of the aforesaid orders, the respondent No. 2, Deputy
Commissioner, Jamshedpur, is directed to make payment of the entire salary for
the suspension period i.e. from 08.09.2009 to 18.02.2014, within a period of six
weeks from the date of receipt/ production of a copy of this order.8. Resultantly, the writ petition stands allowed.(Dr. S.N. Pathak, J.)
kunal/ |
331ac257-157a-5640-b0a6-2c363b1403b4 | court_cases | Orissa High CourtGirish Mohanty vs Union Of India Represented Through Its ... on 3 March, 2015Author:B.R.SarangiBench:B.R.SarangiORISSA HIGH COURT: CUTTACK
OJC No. 2607 of 2001
In the matter of an application underArticles 226& 227of the
Constitution of India.
----------
Girish Mohanty ......... Petitioner
-versus-
Union of India ......... Opp. Parties
Represented through its Secretary
in Home Department, New Delhi
and others.
For Petitioner : M/s. K.K.Swain,
P.N.Mohanty, S.C.Dash,
B. Jena.
For Opp.Parties : Mr. S.K. Patra
(Central Govt. Counsel)
PRESENT:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
Date of hearing: 13.02.2015| Date of judgment : 03.03.2015
Dr. B.R.Sarangi, J.The petitioner, who is working as a Constable
under the Central Industrial Security Force (hereinafter
referred to as „the C.I.S.F.‟) has filed this application seeking
to quash the order of punishment imposed by the disciplinary
authority vide Annexure-3 dated 27.06.1996 by reducing the2scale of pay to two stages from Rs.885/- to Rs.855/- in the
time scale of pay for the period of one year with effect from
04.07.1996 and also directed that he will not earn increment
of pay during the period of reduction and that on expiry of the
said period, the reduction will not have effect of postponing his
future increment of pay and consequential order dated
03.11.1999 passed by the appellate authority in appeal vide
Annexure-9 confirming the order passed by the disciplinary
authority.2. The factual matrix of the case in hand is that
pursuant to a recruitment test held by the CISF, the petitioner
was selected for the post of Constable and accordingly he was
issued with an appointment order on 13.05.1994, pursuant to
which, he reported for duty before the Commandant, CISF
Unit, Eastern Coal Field Ltd., Seetalpur in the district of
Burdwan (West Bengal) on 28.5.1994. The petitioner took
leave for 25 days for the purpose of repairing his house, which
was duly sanctioned by the authority. Due to his sister‟s
marriage, the said period of leave was extended for another
period of ten days by virtue of the communication through
registered letter to the Commandant. While he was on leave,
he was implicated in a criminal case and arrested by local
police on 20.06.1995 and was taken to custody. Since the
leave period expired and the petitioner over-stayed the leave3period as he was taken to custody, he could not join in his
post, as a result he sent a registered letter to the
Commandant on 13.7.1995 requesting him to extend the leave
period. Thereafter, he joined in the post on 28.11.1995 and
the same was accepted. Thereafter, he was allowed to work in
his post as before. The petitioner made a request to the
authorities to regularize his leave period, but without
considering the same, he was sent for basic training at Vilai for
a period of three months by virtue of the order dated
6.12.1995. On completion of his training, he joined in his post
at Seetalpur on 26.2.1996 and discharged his duty peacefully.
While continuing as such, the Commandant issued a charge-
sheet calling upon him to explain as to why he over-stayed his
leave period. On receipt of the same, the petitioner submitted
his explanation and on consideration of the said explanation,
punishment was inflicted by reducing the scale of pay to two
stages from Rs.885/- to Rs.855/- in the time scale of pay for
the period of one year with effect from 04.07.1996 vide
Annexure-3. It was further clarified that the petitioner will not
earn increment of pay during the period of reduction and that
on expiry of the said period, the reduction will not affect
postponing his future increment of pay. It is stated that the
inquiry which has been caused is not in conformity with the
provisions of law and there is non-compliance of principles of4natural justice. It is stated that against the said order of
imposition of penalty, the petitioner preferred an appeal, but
the appellate authority rejected the appeal vide order dated
03.09.1999 in Annexure-9 confirming the order passed by the
disciplinary authority vide Annexure-3. Hence, this application.3. Mr. K.K. Swain, learned counsel for the
petitioner strenuously urged that the charges were issued
against the petitioner on 31.12.1998 alleging misconduct for
suppressing the criminal proceeding dated 20.06.1995 undersection 302/201/34IPC registered against him in Motanga
Police Station in the district of Dhenkanal, to which the
petitioner filed written statement of defence on 8.1.1999
denying such allegation levelled against him and explaining the
situation under which he could not intimate the aforesaid facts
basing upon which an inquiry was conducted by the inquiry
officer under Rule-34 of CISF Rules, 1969. It is stated that
such inquiry has been conducted in a perverse manner without
complying with the principles of natural justice and without
giving opportunity of being heard to the petitioner. More so,
the petitioner has not been given any opportunity to examine
or cross examine the witnesses, who deposed against him and
no materials and documents which were utilized against him
were given to him. Therefore, the inquiry is completely
vitiated. It is further stated that the inquiry having been5conducted in a mechanical manner without application of mind
and on the basis of such inquiry report since the punishment
has been imposed, the same is also passed without non-
application of mind. It is stated that even if such point has
been raised before the appellate authority, the appellate
authority without considering the same in proper perspective
has confirmed the order passed by the disciplinary authority.
Therefore, he seeks for interference of this Court.In order to
substantiate his contention, he relied upon the judgments inJagdish Singh v. Punjab Engineering College and others,
(2009) 2 SCC (L&S) 569, Chairman-cum-Managing
Director, Coal India Ltd. & Anr. v. Mukul Kumar
Choudhuri & Ors., AIR 2010 SC 75, P.Areya Reddy v.
Presiding Officer, Labour Court, Bhubaneswar and
another, 2011 (Supp.-1) OLR 238, Chandrama Bhusan
Sarangi v. Union of India and others, 2011 (I) ILR-CUT
398, Padnav Gouda v. Orissa Forest Corporation and
others, 2015 (I) OLR 54.4. Mr. Sudhir Kumar Patra, learned Central
Government Counsel raised preliminary objection with regard
to maintainability of the writ application before this Court and
stated that this Court has lacked territorial jurisdiction to hear
the matter. In addition to the same, it is urged that there is
availability of alternative remedy under the relevant service6rules against the order passed by the appellate authority.
Therefore, due to availability of alternative remedy, this writ
application cannot be sustained before this Court. It is stated
that on merit also the imposition of penalty having been done
in conformity with the provisions of law and the appellate
authority having confirmed the same, the writ petition is
devoid of any merit and accordingly he seeks for dismissal of
the writ application. It is further urged that the petitioner
misguided the disciplinary authority by taking three different
reasons on different occasion to cover up his 159 days OSL
period by suppressing his involvement in the criminal case
registered against him. Therefore, the action taken by the
authorities is well within its competence and the same is in
conformity with provisions of law. Therefore, this Court should
not interfere with the same.In order to substantiate his
contention, he relied upon the judgment inOil and Natural
Gas Commission v. Utpal Kumar Basu and others, (1994)
4 SCC 711, Gopal Krishna Behera v. Union of India and
others, 2014 (II) OLR 540.5. In view of the aforesaid facts and
circumstances of the case, it is to be decided:-1) Whether this Court has got jurisdiction
to interfere with the order passed by the
disciplinary authority as well as the appellate
authority.72) Whether in view of the availability of
alternative remedy, this Court exercise the
jurisdiction underArticle 226of the
Constitution of India or not.3) Whether the petitioner is entitled to
any relief claimed by him in the writ
application.6. With regard to the lack of territorial jurisdiction
of this Court to interfere with the order of punishment imposed
by the competent authority, Mr. Patra, learned Central
Government Counsel relied upon the judgment inOil and
Natural Gas Commission(supra) and stated that mere
service of the appellate order on the petitioner cannot form
part of cause of action. Therefore, this Court has no
jurisdiction to interfere with the matter.7. In order to have the territorial jurisdiction, it is
to be seen whether any part of cause of action has arisen
within the State of Orissa. The cause of action has been
defined to mean every fact, if traversed, it would be necessary
for the plaintiff to prove in order to support his right to a
judgment of the Court. The service of appellate order on the
petitioner at his permanent residence in the state of Orissa will
give rise to cause of action within the territory of the State.
Therefore the service of the said order was an integral part of
cause of action.8. On perusal of Annexure-9, the appellate order
dated 3.11.1999, it appears that the said order has been8served on the petitioner at his native address i.e. Village-
Odapada, Post-Hindol Road, PS-Motanga, Dist-Dhenkanal
(Orissa). Therefore, the communication of the order affecting
the service of an individual is necessary and order takes effect
against the individual employee after its communication. The
appellate order being communicated in the present native
address of the petitioner, it forms part of cause of action.9. Right to invokeArticle 226of the Constitution
of India to enforce Fundamental rights and other legal rights
against the State or authority or its agency is a constitutional
right. Such right should not be made illusory or unenforceable
upon narrow construction of the concept of cause of action. In
the present case, the petitioner was a member of the CISF, an
All India Organisation. CISF has admittedly its network of
offices and establishments in different parts of India including
the State of Orissa. The petitioner is an employee removed
from service and in usual course, he had come back to the
place of his permanent residence in Orissa to take shelter after
he had been removed from service. It is not possible for him, a
jobless employee, to come to the State where he was last
posted to avail of his right underArticle 226of the Constitution
of India. CISF with its net-work of offices and establishments is
not likely to suffer any irreparable prejudice in meeting legal
challenge of the petitioner in this Court.910. In Chandrama Bhusan Sarangi (supra), this
Court also held that High Court can exercise power to issue
writ, direction or order for enforcement of any of fundamental
rights conferred by Part-III of Constitution or for any other
purpose, if cause of action wholly or in part has arisen within
the territorial jurisdiction of High Court. The expression „cause
of action‟ means bundle of facts which petitioner must prove, if
traversed, to entitle him to a judgment in his favour by Court.
Therefore, question of territorial jurisdiction must be decided
on facts pleaded in petition. Since the appellate order was
served on the petitioner at his native address, part of cause of
the action arises for writ petition within the jurisdiction of this
Court.11. Considering all these aspects including the
interest of justice, this Court is of the view that a part of the
cause of action has arisen within the territorial jurisdiction of
this Court enabling it to entertain this writ application.12. Mr. K.K. Swain, learned counsel for the
petitioner relies upon the judgment inJagdish Singh(supra),
wherein the apex Court considering the jurisdiction of the
Court in a judicial review so far as disciplinary matter is
concerned held that in case of habitual absenteeism,
misconduct and willful absence, the petitioner is entitled to get
the punishment as envisaged under rules. This Court has no10jurisdiction to interfere with the quantum of punishment unless
it is held disproportionate shockingly to conscience. The ratio
of the said case is not applicable to the present context.Similarly in P. Areya Reddy (supra), similar view has also
been taken by the apex Court.13. In Chairman-cum-Managing Director, Coal
India Ltd. and another (supra), the delinquent admitted the
charge in the departmental proceeding. The inquiry officer
arrived at a conclusion about the proof of charges, the apex
Court held that in absence of any procedural illegality or
irregularity in conduct of departmental enquiry, it has to be
held that the charges against the delinquent stood proved and
warranted no interference. The ratio of the said case is not
applicable to the present context. Therefore, the same is
distinguishable.14. Now coming to the question of awarding
punishment on the delinquent officer on the basis of the
alleged facts it is well within the complete domain of the
disciplinary authority. Whether on the basis of facts alleged the
punishment imposed by the disciplinary authority is
proportionate or not or it is required to be reduced that can be
considered at the discretion of the disciplinary authority.
Therefore, what is appropriate quantum of punishment to be
awarded to a delinquent is a matter that primarily rests at the11discretion of the disciplinary authority. An authority sitting in
appeal over any such order of punishment is by all means
entitled to examine the issue regarding the quantum of
punishment inasmuch as it is entitled to examine whether the
charges have been satisfactorily proved. But when any such
order is challenged before a service Tribunal or the High Court
the exercise of discretion by the competent authority in
determining and awarding punishment is generally respected
except where the same is found to be so outrageously
disproportionate to the charge of misconduct and the Court
considers it to be arbitrary and wholly unreasonable.The
superior Courts and the Tribunal invoke the doctrine of
proportionality which has been gradually accepted as one of
the facets of judicial review. Where punishment is excessive or
disproportionate to the offence so as to shock the conscience
of the Court and is unacceptable even then Courts should be
slow and generally reluctant to interfere with the quantum of
punishment. The law on the subject is well settled by a series
of decision rendered by the superior Court. This view has also
been taken inRanjit Thakur v. Union of India, (1987) 4
SCC 611 : AIR 1987 SC 2386, Dev Singh v. Punjab Tourism
Development Corporation Limited, (2003) 8 SCC 9 :AIR
2003 3712, Union of India v. Ganayutham, (1997) 7 SCC
463 :AIR 1997 SC 3387, Ex-Naik Sardar Singh v. Union of12India, (1991) 3 SCC 213 :AIR 1992 SC 417, Om Kumar v.
Union of India, (2001) 2 SCC 386 : AIR 2000 SC 3689.15. The context in which the above mentioned case
has been dealt with is not applicable to the present case. Now
come to the question of applicability of alternative remedy. As
per the provisions contained under Rule 54 of the CISF Rules,
revision forum has been prescribed under the statute against
the order passed by the appellate authority. In Gopal Krishna
Behera (supra), this Court in paragraphs-8 and 9 held as
follows:-"8. In view of the above provision, it appears
that that there is availability of alternative remedy
under the law and alternative remedy may be
statutory, non-statutory or constitutional where a
right is created by a statute. The statute itself may
provide a remedy for violation of such rights. Where
a statute creates a right or liability and also
prescribes a remedy or procedure for enforcement of
that right or liability, resort must be had to that
remedy before invoking the extraordinary and
prerogative writ jurisdiction of the High Court underArticle 226.Hence, where statutory remedy is
available, petition underArticle 226is not generally
entertained sinceArticle 226is not intended to
circumvent statutory procedures. This provision of
law has been settled by the apex Court inDanda
Rajeshwari v. Bodavula Hanumayamma, AIR
1997 SC 1541 and Shivgonda Anna Patil v. State
of Maharashtra, AIR 1999 SC 2281.9. In view of the aforesaid law laid down by
the apex Court mentioned supra where the party had
a statutory remedy available under the relevant
statute, he cannot bypass the said remedy and file a
writ petition underArticle 226.It was held that if
such a procedure is allowed, it may enable the
litigant to defeat the provisions of the statute. The
normal rule is that a writ petition should not be
entertained when statutory remedy is available13under the concerned legislation unless exceptional
cases are made out in view of the ratio decided by
the apex Court in Premier Automobiles Ltd. Vs.
Kamlekar Shantaram Wadke, (1976) 1 SCC 496,
Rajasthan SRTC v. Krishna Kant, AIR 1995 SC
1715, Scooters India v. Vijai E.V.Eldred, (1998) 6
SCC 549, Chndrakant Tukaram Nikam v.Municipal Corpn. of Ahmedabad, (2002) 2 SCC
542, Seth Chand Ratan v. Pandit Durga Prasad,
AIR 2003 SC 2736 U.P. State Bridge Corpn. Ltd.
v. U.P.Rajya Setu Nigam S.Karmachari Sangh,
(2004) 4 SCC 268, U.P. State Spinning Co. Ltd. v.R.S.Pandey and another, 101(2006) CLT 160(SC)
and Uttaranchal Forest Development
Corporation v. Jabar Singh, (2007) 2 SCC 112."16. Therefore, in view of the availability of
alternative remedy, this Court is not inclined to interfere with
writ application. However, liberty is granted to the petitioner to
move the revisional authority in accordance with law.17. With the aforesaid liberty, the writ application is
disposed of. No order to costs..............................Dr.B.R.Sarangi, J.Orissa High Court, Cuttack
The 3rd March,2015/Jagdev |
223e5ef5-12fc-5859-b283-647f65253e8e | court_cases | Gujarat High CourtKishorbhai Laljibhai Patel (Padariya) ... vs State Of Gujarat & 2 on 17 July, 2017Author:A.J.DesaiBench:A.J.DesaiR/CR.MA/34261/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 34261 of 2016
===========================================================
KISHORBHAI LALJIBHAI PATEL (PADARIYA) & 1....Applicant(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
================================================================
Appearance:
MR MANOJ SHRIMALI, ADVOCATE for the Applicant(s) No. 1 - 2
MR. L.B. DABHI, ADD. PUBLIC PROSECUTOR for the Respondent(s) No. 1
================================================================
CORAM: HONOURABLE MR.JUSTICE A.J.DESAI
Date : 17/07/2017
ORAL ORDER1. Heard the learned advocates appearing for the respective
parties. Haribhai Chanabhai Pargi, complainant is present in the
Court and is identified by Mr. Manoj Shrimali, Learned advocate
appearing for the applicant. His Affidavit is placed on record.2. Rule. Learned Additional Public Prosecutor as well as
learned advocate appearing for the Complainant waive service of
Rule on behalf of the respective respondents.3. Considering the issue involved in the present application and
with consent of the learned advocates appearing for the respective
parties as well as considering the fact that the dispute amongst the
applicant and respondent No.2 has been resolved amicably, this
application is taken up for final disposal forthwith.4. By way of this application underSection 482of the Code of
Criminal Procedure, 1973 (hereinafter referred to as "the Code"),
the applicant has prayed for quashing and setting aside FIR
bearing C.R.No.I-128 of 2016 registered with Jetpur City PolicePage 1 of 4HC-NIC Page 1 of 4 Created On Tue Jul 18 01:32:57 IST 2017
R/CR.MA/34261/2016 ORDER
Station, Rajkot for the commission of offence punishable underSections 454,380,506(2)504and114of the Indian Penal Code
andSection 3(1)(r)of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989, as well as all other
consequential proceedings arising out of the aforesaid FIR qua the
applicant.5. Learned advocate for the applicant has taken this Court
through the factual matrix arising out of the present application. At
the outset, it is submitted that the parties have amicably resolved
the issue and therefore, any further continuance of the proceedings
pursuant to the impugned FIR as well as any further proceedings
arising therefrom would create hardship to the applicant. It is
submitted that respondent No.2 has filed an affidavit in these
proceedings and has declared that the dispute between the
applicant and respondent No.2 is resolved due to intervention of
trusted persons of the society. It is further submitted that in view
of the fact that the dispute is resolved, the trial would be futile and
any further continuance of the proceedings would amount to abuse
of process of law. It is therefore submitted that this Court may
exercise its inherent powers conferred under Section 482 of the
Code and allow the application as prayed for.6. Learned Additional Public Prosecutor appearing for the State
has opposed the present application and submitted that
considering the seriousness of the offence, the complaint in
question may not be quashed and the present application may be
rejected.7. Learned advocate for respondent No.2 has reiterated the
contentions raised by the learned advocate for the applicant. The
learned advocate for respondent No.2 also relied upon the affidavit
filed by respondent No.2 - Haribhai Chanabhai Parghi datedPage 2 of 4HC-NIC Page 2 of 4 Created On Tue Jul 18 01:32:57 IST 2017
R/CR.MA/34261/2016 ORDER
17.7.2017. Respondent No.2 is present in person before the Court
and is identified by learned advocate for respondent No.2. On
inquiry made by the Court, respondent No.2 has declared before
this Court that the dispute between the applicant and respondent
No.2 is resolved due to intervention of trusted persons of the
society and therefore, now the grievance stands redressed. It is
therefore submitted that the present application may be allowed.8. Having heard the learned advocates appearing for the
respective parties, considering the facts and circumstances arising
out of the present application as well as taking into consideration
the decisions rendered in the cases ofGian Singh Vs. State of
Punjab & Anr., reported in (2012) 10 SCC 303, Madan Mohan
Abbot Vs. State of Punjab, reported in (2008) 4 SCC 582,
Nikhil Merchant Vs. Central Bureau of Investigation & Anr.,
reported in 2009 (1) GLH 31, Manoj Sharma Vs. State & Ors.,
reported in 2009 (1) GLH 190 and Narinder Singh & Ors. Vs.
State of Punjab & Anr. reported in 2014 (2) Crime 67 (SC), it
appears that further continuation of criminal proceedings in
relation to the impugned FIR against the applicant would be
unnecessary harassment to the applicant. It appears that the trial
would be futile and further continuance of the proceedings
pursuant to the impugned FIR would amount to abuse of process of
law and hence, to secure the ends of justice, the impugned FIR is
required to be quashed and set aside in exercise of powers
conferred under Section 482 of the Code.9. Resultantly, this application is allowed and the impugned FIR
bearing C.R.No.I-128 of 2016 registered with Jetpur City Police
Station, Rajkot filed against the present applicant is hereby
quashed and set aside. Consequently, all other proceedings arising
out of the aforesaid FIR are also quashed and set aside qua the
applicant. Accordingly, Rule is made absolute.Page 3 of 4HC-NIC Page 3 of 4 Created On Tue Jul 18 01:32:57 IST 2017
R/CR.MA/34261/2016 ORDER
Direct service is permitted.
(A.J.DESAI, J.)
PALLAVIPage 4 of 4HC-NIC Page 4 of 4 Created On Tue Jul 18 01:32:57 IST 2017 |
12a1b8bb-e31a-55e3-94d7-366b40d58db8 | court_cases | Income Tax Appellate Tribunal - MumbaiGsb Capital Markets Ltd, Mumbai vs Assessee on 16 December, 2015आयकर अपील
य अ धकरण "G" यायपीठ मंब
ु ई म ।
IN THE INCOME TAX APPELLATE TRIBUNAL "G" BENCH, MUMBAI
BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER AND
SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER
आयकर अपील सं./I.T.A. No. 307 /Mum/2014
( नधा रण वष / Assessment Year : 2010-11)
GSB Capital Markets Ltd., बनाम/ DCIT- Range 4(1),
78/80 Ali Chambers, Mumbai
v.
Tamarind Lane, Fort,
Mumbai - 400 001
थायी ले खा सं . /PAN :AABCG7866N
(अपीलाथ /Appellant) .. ( यथ / Respondent)
Assessee by Shri Ajay R. Singh
Revenue by : Shri Rajesh Ojha
ु वाई क तार ख / Date of Hearing
सन : 04-11-2015
घोषणा क तार ख /Date of Pronouncement : 16-12-2015
आदे श / O R D E R
PER RAMIT KOCHAR, ACCOUNTANT MEMBER:This appeal, filed by the assessee company, being ITA No.
307/Mum/2014, is directed against the orders dated 22-10-2013 passed by
the learned Commissioner of Income Tax(Appeals)- 8, Mumbai (Hereinafter
called "the CIT(A)"), for the assessment year 2010-11.2. Although the assessee company has raised five grounds of appeal in
this appeal filed with the Tribunal but the effective issue involved in this
appeal is regarding not allowing the set off of brought forward loss arising
from transfer of short-term capital asset incurred during the previous year
relevant to the assessment year 2009-10 of Rs. 19,21,095/- against gains
2 ITA 307/M/14
arising from transfer of long-term capital asset earned during the previous
year relevant to the assessment year 2010-11 of Rs. 39,89,235/-.3. The Brief facts of the case are that the assessee company is a member
of the Bombay Stock Exchange and engaged in the business of share broking,
trading and dealing in shares and securities.4.During the course of assessment proceedings u/s 143(3) read withSection
143(2)of the Income Tax Act,1961(hereinafter called "the Act") , it was seen
by the learned assessing officer( Hereinafter called "the AO") that the
assessee company has claimed set off of brought forward loss arisen from
transfer of short-term capital asset Rs. 19,21,095/- during the previous year
relevant to the assessment year 2009-10 against the gains arising from
transfer of long-term capital asset of Rs. 39,89,236/- earned by the assessee
company during the previous year relevant to the assessment year 2010-11
which, in the opinion of A.O. is not allowable due to difference in the tax rate.
The assessee company submitted that the said set off of loss be allowedu/s
74(1)of the Act which reads as under:-Losses under the head "Capital gains" ,Section 74(1)(a)"74(1) where in respect of any assessment year, the net result of the
computation under the head "capital gains" is a loss to the assessee,
the whole loss shall subject to the other provisions of this chapter, be
carried forward to the following assessment year, and -(a) insofar as such loss relates to a short term capital asset, it shall
be set off against income, if any, under the head "capital gains"assessable for that assessment year in respect of any other capital
asset."3 ITA 307/M/14
While the A.O. disallowed the loss in view ofsection 70(3)of the Act which
reads as under:-"Set off of loss from one source against income from another
source under the same head of income.701. Save as otherwise provided in this Act, where the net result for any
assessment year in respect of any source falling under any head of
income, other than "Capital gains", is a loss, the assessee shall be
entitled to have the amount of such loss set off against his income from
any other source under the same head."(2) Where the result of the computation made for any assessment
year undersection 48to in respect of any short-term capital
asset is a loss, the assessee shall be entitled to have the amount
of such loss set off against the income, if any, as arrived at under
a similar computation made for the assessment year in respect of
any other capital asset.(3) where the result of the computation made for any assessment year
undersection 48to55in respect of any capital asset (other than a
short term capital asset) is a loss, the assessee shall be entitled to have
the amount of such loss set off against the income, if any, as arrived at
under a similar computation made for the assessment year in respect of
any other capital asset not being a short term capital asset."In the opinion of A.O., loss arising from transfer of short-term capital assets
(on which STT is paid) is assessed at 15% tax rate while the gain arising from
transfer of long-term capital assets (on which STT is not paid) is assessed at
20% tax rate and hence the AO held that it cannot be set off in view ofsection
70(3)of the Act vide assessment orders dated 23-02-2013 passedu/s 143(3)of the Act.5.Aggrieved by the assessment orders dated 23-02-2013 passedu/s 143(3)of
the Act, the assessee company carried the matter before the CIT(A) and made
submissions that thesection 70(3)of the Act is not applicable to this issue
and the A.O. has erred in invoking the provisions ofsection 70(3)of the Act.4 ITA 307/M/14
The assessee company , inter-alia submitted before the CIT(A) that the
assessee company has rightly claimed set off of brought forward loss arisen
from transfer of short-term capital asset during the previous year relevant to
the assessment year 2009-10 against the gains arisen from transfer of long-
term capital assets earned during the previous year relevant to the
assessment year 2010-11in view ofSection 74(1)(a)of the Act and the AO has
wrongly invoked provisions ofSection 70(3)of the Act whereas set off of the
said loss is governed bySection 74(1)(a)of the Act . The assessee company ,
inter-alia , submitted as under:"Section 74was amended by theFinance Act, 2002made
effective from 1-4-2003 and accordingly, it is being made
applicable from A.Y. 2003-04 onwards. Memorandum explaining
relevant Clause no. 28 of the Finance Bill of 2002 in respect of
Amendment proposed and carried out in Sec: 74 is enclosed
herewith. The object of the said amendment was to rectify the
anomaly by amending the said Section to provide that "where in
respect of any A. Y., the net result of computation under the head
'capital gain' is a loss to the assessee, in so far as such loss
relates. to a short term assets, it shall be carried forward and set
off against the income, if any under the head 'capital gain'
assessable for the following A. Y. in respect of any other capital
assets and in so far as such loss relates to a Long term capital
assets, it shall be carried forward and set off against the income,
if any, under the head 'capital gains' assessable for the following
A.Y. in respect of any other capital assets not being a short term
capital assets." The above amendment have made the situation
abundantly clear that b/f STCL available for set off against LTCG
earned in the subsequent A.Y. made effective from 1.4.2003 end
accordingly, it is being made applicable from A. Y. 2003-04
onwards. Memorandum explaining relevant clause no. 28 of the
Finance Bill of 2002 in respect of Amendment proposed and
carried out inSec. 74is enclosed herewith."The assessee company also submitted thatSection 70of the Act is not
applicable because it deals with intra-head set off of capital losses incurred
during the same year against gains of the same year and does not deal with
the set off of brought forward capital losses. The CIT(A) rejected the
5 ITA 307/M/14
contentions of the assessee company and held that loss arising from the
transfer of short-term capital asset (on which STT is paid) of Rs. 19,21,095/-
and gains arising from transfer of long-term capital assets (on which STT is
not paid) of Rs. 26,46,573/- are different heads and do not come under
similar computation as gain arising from transfer of short-term capital asset
in the present case is assessed @ 15% tax rate and gain arising from transfer
of long-term capital asset is assessed at 20% tax rate and hence appeal of the
assessee company was rejected and the assessment order of the A.O. was
upheld whereby the CIT(A) held that brought forward loss incurred on
transfer of short-term capital asset(on which STT was paid ) of Rs.
19,21,095/- is not allowed to be set off against gain arising from sale of long-
term capital asset (on which STT was not paid) . Thus, the CIT(A) dismissed
the appeal of the assessee company vide orders dated 22.10.20136.Aggrieved by the order dated 22.10.2013 of the CIT(A), the assessee
company is in further appeal before the Tribunal.7. The ld. Counsel for the assessee company reiterated the submission as
has been made before the lower authorities and submitted thatSection
74(1)(a)of the Act is applicable andsection 70of the Act is not applicable to
the issue in appeal as it deals with intra-head adjustment of losses incurred
during the year whilesection 74(1)(a)deals with set off of brought forward
loss incurred on transfer of short-term capital asset against the capital gain's
earned during the year. The Ld. Counsel of the assessee company relied upon
the decision of the Tribunal in the case of Capital International Emerging
Market Fund v. DDIT(IT) (2013) 145 ITD 491(Mum. Trib.) to contend that
merely because two set of transaction are liable for different rate of tax, it
does not mean that these transaction does not arise from similar computation
as contended by the authorities below. The Ld. Counsel also drew our
attention to circular no 8 of 2002, dated 27-08-2002 issued by CBDT which
6 ITA 307/M/14
is explanatory notes on provisions relating to direct taxes to contend that the
amendment were made byFinance Act, 2002to rectify the anomaly and now
loss arising from transfer of short-term capital asset can be set off against
any capital gains while loss arising from transfer of long-term capital asset
can be set off only against long-term capital gains.8. The ld. D.R., on the other hand, relied on the orders of authorities
below and submitted that capital losses can be set off against the income if
any arrived at under the 'similar computation' made for the assessment year
in respect of any other capital asset. He submitted thatsection 70(3)of the
Act is applicable andSection 74of the Act is not applicable in the instant
case.6. We have considered the rival contentions and perused the material on
record. Before we proceed, it is important to reproduce the relevant section:-"Losses under the head 'Capital gains"Section 74(1)(a)"74(1) where in respect of any assessment year, the net result of the
computation under the head "capital gains" is a loss to the assessee,
the whole loss shall subject to the other provisions of this chapter, be
carried forward to the following assessment year, and -(a) insofar as such loss relates to a short term capital asset, it shall
be set off against income, if any, under the head "Capital gains"assessable for that assessment year in respect of any other capital
assets."While the A.O. disallowed the loss by referring tosection 70(3)of the Act
which reads as under:-" Set off of loss from one source against income from another
source under the same head of income7 ITA 307/M/14Section 70(3)70(3)where the result of the computation made for any assessment
year undersection 48to55in respect of any capital asset (other than
a short term capital asset) is a loss, the assessee shall be entitled to
have the amount of such loss set off against the income, if any, as
arrived at under a similar computation made for the assessment year in
respect of any other capital asset not being a short term capital asset."It could be seen thatsection 70of the Act deals with the set off losses from
one source against the income from another source under the same head of
income and deals with intra-head adjustment of losses during the same
assessment year under the same head of income. Whilesection 74of the Act
deals with the losses under the head 'Capital gains' and deals with the carry
forward of capital losses and set off against the income of the subsequent
financial year andsection 74(1)(a)of the Act clearly stipulates that loss
arising from transfer of short-term capital asset which are brought forward
from earlier years can be set off against the capital gain assessable for the
assessment year in respect of any other capital asset which could be either
long-term capital gain and short-term capital gain. The amendment made byFinance Act, 2002has rectified the anomaly as existed which was explained
by circular no 8 of 2002, dated 27-08-2002 issued by CBDT which is
explanatory notes on provisions relating to direct taxes referring to the
amendment made byFinance Act, 2002to rectify the anomaly as under:" 40. Modifications of provisions relating to set off of long term capital
loss
40.1 The existing provision contained insection 70of the Income-tax Act
provides that where the net result for any assessment year in respect of
any source falling under any head of income is a loss, the assessee shall
be entitled to have the amount of such loss set off against his income
from any other source under the same head. Further, section 74 of the8 ITA 307/M/14Income-tax Actprovides that a loss under the head "Capital gains" can
be carried forward and set off against capital gain in the following eight
assessment years.40.2 Since long-term capital gains are subject to lower incidence of tax,
theFinance Act, 2002has rectified the anomaly by amending the said
sections to provide that while losses from transfer of short-term capital
assets can be set off against any capital gains, whether short-term or
long-term , losses arising from transfer of long-term capital assets, will be
allowed to be set off only against long-term capital gains. It is further
provided that a long term capital loss shall be carried forward separately
for eight years to be set off only against long-term capital gains.
However, a short-term capital loss , may be carried forward and set off
against any income under the head "Capital gains".Thus, as could be seen above from the explanatory notes toFinance Act,
2002, the loss arising from transfer of short-term capital asset can be set off
against any capital gains, whether short-term capital gains or long-term
capital gains . It further stipulated that the anomaly existing due to long-term
capital gains being subject to lower rate of tax, are hence-forth allowed to be
set off only against long-term capital gains. Hence, the contentions of
Revenue in this respect as advanced in this appeal cannot be accepted.Similarly , the contention of the revenue that short-term capital loss can not
be set off against long-term capital gains due to difference in tax rate can also
not be accepted because of the provisions of Section 74(1)(a) of the Act which
clearly stipulates that carried forward losses arising from transfer of short-
term capital asset can be set off against income from capital gains assessable
for the assessment year in respect of any other capital asset and the decision
of the Tribunal in the case of Capital International Emerging Markets Fund v.9 ITA 307/M/14
DDIT (2013) 145 ITD 491(Mum.-Trib.) supports the contention of the assessee
company , whereby the Tribunal held as under:"3.2. We have heard the rival submissions and perused the material. We
find that identical issue was decided in the favour of the assessee by the
Tribunal in the case of DWS India Equity Fund (supra) in following
manner :"5. We have perused the records and considered the rival
contentions carefully. The dispute is regarding set off of short term
capital loss arising from STT paid share transactions against short
term capital gain arising from non STT transactions. The assessee
had earned short term capital gain of Rs.40,25,93,717/- from non
STT transactions and it had incurred short term capital loss of
Rs.1,26,45,10,006/- from STT paid transactions. The issue is
whether short term capital loss can be set off against short term
capital gain mentioned above. Under the provisions ofsection
70(2), short term capital loss arising from any asset can be set off
against Short term capital gain arising from any other asset under
a similar computation made. The AO held that since gain was from
shares on which no STT was paid and loss from STT paid
transactions, these fell in different categories and could not be set
off against each other. We find that this aspect has already been
examined by the Mumbai bench of the Tribunal in the case of First
State Investments (Hong Kong) Ltd. v. ADIT(supra), in which it has
been held that the phrase "under similar computation made" refers
to computation of income, the provisions for which are contained
undersections 45to55Aof the Act. The Tribunal also held that the
matter of computation of income was a subject which came anterior
to the application of rate of tax which are contained insection 11010 ITA 307/M/14
to 115BBC. Therefore, merely because the two set of transactions
are liable for different rate of tax, it cannot be said that income
from these transactions does not arise from similar computation
made as computation in both the cases has to be made in similar
manner under the same provisions. The Tribunal therefore, held
that short term capital loss arising from STT paid transactions can
be set off against short term capital gain arising from non SIT
transactions. The case of the assessee is identical. Therefore,
respectfully following the decision of the Tribunal, we see no
infirmity in the order of CIT(A) and the same is, therefore, upheld.6. In the result, appeal of the revenue is dismissed."Respectfully, following the above mentioned order of the Tribunal, we
decide ground no. 7 in favour of the assessee."Thus in view of our above discussions and reasoning, we hold that assessee
company has rightly claimed the set off of brought forward loss arisen from
the transfer of short-term capital asset of Rs.19,21,095/- incurred during the
assessment year 2009-10 to be set off against the gains arising from transfer
of long-term capital asset earned during the previous year relevant to the
assessment year 2010-11 which has been wrongly denied by the A.O. and
confirmed/sustained by the CIT(A). Hence, we set aside the orders of
authorities below and direct for allowing the set off of brought forward loss
arising from transfer of short-term capital asset of Rs.19,21,095/- incurred
during the assessment year 2009-10 against the gains arising from transfer of
long-term capital assets earned during the previous year relevant to the
assessment year 2010-11.7. In the result, the appeal filed by the assessee company is allowed
11 ITA 307/M/14
Order pronounced in the open court on 16th December, 2015.
आदे श क घोषणा खुले #यायालय म% &दनांकः 16-12-2015 को क गई ।Sd/- sd/-
(AMIT SHUKLA) (RAMIT KOCHAR)
JUDICIAL MEMBER ACCOUNTANT MEMBER
मुंबई Mumbai; &दनांक Dated 16-12-2015
[
व.9न.स./ R.K., Ex. Sr. PSआदे श क! " त$ल%प अ&े%षत/Copy of the Order forwarded to :1. अपीलाथ / The Appellant2. यथ / The Respondent.3. आयकर आय:ु त(अपील) / The CIT(A)- concerned, Mumbai4. आयकर आयु:त / CIT- Concerned, Mumbai5. =वभागीय 9त9न?ध, आयकर अपील य अ?धकरण, मुंबई / DR, ITAT, Mumbai H Bench6. गाडC फाईल / Guard file.आदे शानुसार/ BY ORDER,
स या=पत 9त //True Copy//
उप/सहायक पंजीकार (Dy./Asstt. Registrar)
आयकर अपील
य अ धकरण, मुंबई / ITAT, Mumbai |
dcecc1a7-255b-563a-9274-419a67da6280 | court_cases | Supreme Court of IndiaBejoy Gopal Mukherji vs Pratul Chandra Ghose on 28 January, 1953Equivalent citations: 1953 AIR 153, 1953 SCR 930, AIR 1953 SUPREME COURT 153Bench:Mehr Chand Mahajan,Natwarlal H. BhagwatiPETITIONER:
BEJOY GOPAL MUKHERJI
Vs.
RESPONDENT:
PRATUL CHANDRA GHOSE.
DATE OF JUDGMENT:
28/01/1953
BENCH:
DAS, SUDHI RANJAN
BENCH:
DAS, SUDHI RANJAN
MAHAJAN, MEHR CHAND
BHAGWATI, NATWARLAL H.
CITATION:
1953 AIR 153 1953 SCR 930
CITATOR INFO :
R 1966 SC 629 (9)
R 1972 SC 410 (17)
R 1988 SC1531 (63)
ACT:
Landlord and tenant -Permanent tenancy--Evidence-lnference
from possession from generation to generation, transfers,
erection of stractures and other circumstances -Mere
increase of, rent, effect of.
HEADNOTE:
Permanency of tenure does not necessarily imply both fixity
of rent and fixity of occupation and the fact of enhancement
of rent does not necessarily militate against the tenancy
being a permanent one. When, therefore, in a previous suit
the only question was whether the jama could be increased
and the jama was increased:
Held, that this decision did not operate as res judicata on
the question of permanency of the tenure in a subsequent
suit for ejectment.
Shankar Rao v. Sambhu Wallad (1940) 45 C.W.N. 57; Jogendra
Krishna Banerji v. Subashini Dassi (1940) 45 C.W.N. 590,
Probhas Chandra Mallick v. Debendra Nath Das (1939) 43
C.W.N.828, relied on.
Mere possession for generations at a uniform rent, or
construction of permanent structures by itself may not be
conclusive proof of a permanent right but the cumulative
affect of such facts coupled with other facts may lead to
the inference of a permanent
931
tenancy Where it was not known how the earliest known tenant
acquired the tenancy or what the nature of the tenancy was,
the tenancy bad passed from one person to another by
inheritance or by will or by transfer inter vivos, in the
deeds of transfer the transferee was given the right to
enjoy from generation to generation for ever, pucka
structures and tanks had been constructed, and though there
was an enhancement of rent in 1860, the rent bad not been
increased since then:
Held, that all these circumstances put together irresistibly
led to the conclusion of a permanency of the tenure.
Probhas Chandra Mallik v. Debendra Nath Das (1939) 43 O.W.N.
828 referred to.
JUDGMENT:CIVIL APPELLATE JURISDICTION: Civil Appeal No. 93 of 1952.
Appeal from the Judgment and Decree dated the 20th January,
1950, of the High Court of Judicature at .Calcutta (Das and
Gupta JJ.) in Appeal from Original Decree No. 141 of 1940
arising out of Judgment and Decree dated the 8th May, 1940,
of the Court of the Subordinate Judge, 1st Court of Zillah
If owrah in Title Suit No. 38 of 1948.N.C. Chatterjee (A. N. Sinha, with him) for the appellant.
Panchanan Ghosh (Syama Charan Mitter and A.K. Dutt, with
him) for the respondent.1953. January 28. The Judgment of the Court was delivered
by
DAS J. - This is an appeal by the plaintiff' in an ejectment
suit. His case was that defendant No. I Pratul Chandra
Ghose was a Ticca tenant of premises Nos. 2 and 3, Watkin's
Lane, Howrah, comprising an area of I Bigha 19 Cottahs of
land on a rent of Rs. 78 per annum under the landlords Kumar
Sarat Kumar Roy and Bibhuti Bhusan Chatterjee, proform a
defendants Nos. 2 and 3, that the plaintiff took a Mourashi
Mokarari lease from these landlords on the 23rd September,
1937, and thereby became the immediate landlord of the said
defendant and that the teancy was determined by a notice to
quit dated the 7th October, 1937.The trial Court, amongst
other932things, found as a fact that the tenancy of the defendant
Pratul Chandra Ghose was permanent, heritable and
transferable and was not liable to be determined by notice.
The plaintiff preferred an appeal to the High Court but the
High Court dismissed that appeal holding, amongst other
things, that the finding of the trial Court as to the nature
of the tenancy was correct. The plaintiff has now come up
on appeal before us after getting a certificate from the
High Court that it is a fit case for appeal to this Court.
Relying on the decision of the Privy Council inDhanna Mal
v. Moti Sagar(1) Shri N. C. Chatterjee appearing on behalf
of the plaintiff-appellant contends that the present appeal
is not concluded by the concurrent finding of the Courts
below that the tenancy was permanent because that question
was one of the proper inference in law to be deduced from
the facts as found by the Courts below. The learned counsel
has, therefore, taken us through. the evidence mostly
documentary, as to the nature of the tenancy. The earliest
document referred to is Exhibit P/11, being a conveyance
executed in 1226 B.S.1819-1820 by Sheikh Manik and another
in favour of Mrs. Cynthia Mills Junior. How the vendors had
acquired their title is not known. By that deed of sale the
vendors, for a money consideration,, conveyed their interest
in the lands described as Jamai lands to the purchaser who,
on payment of rent of Rs. 480 per kist, was to "go on
possessing and enjoying the same with great felicity down to
your sons and grandsons etc., in succession by constructing
houses and structures." Mrs. Cynthia Mills died some time
before October, 1855, and her son John Henry Mills who had
succeeded her sold the premises to one Mrs. Sabina Love by a
conveyance Exhibit P/10 dated the 29th October, 1855. It
appears from that deed that by that time a tank with masonry
steps had been excavated on the lands which were described
as a plot of rentpaying garden land. The consideration for
the sale
(1) (1927) L. R. 54 1. A. 178.933was Rs. 1,000. The following provisions of the sale deed
are of importance:--"From this date being entitled to make gift and sale of the
said property, you do bring into your own possession the
said lands etc., and on paying annually to the Maliks
Zemindars Rs. 480 (Rupees-four and annas eight) in Siccas
coins as rent and on getting your name mutated in place of
mine and obtaining Dakhilas in your own name, you do go on
possessing and enjoying the same with great felicity down to
your sons and grandsons etc., in succession."By a conveyance Exhibit P/9, dated the 10th October, 1856,
Mrs. Sabina Love transferred the premises to one Francis
Horatio Dobson. The premises were there described as
"garden land held under Mourashi Patta" which Patta has
since been held to be a spurious document in a subsequent
litigation. It appears from this document that Mrs. Cynthia
Mills had excavated a tank and constructed a pucca ghat and
laid out a garden and that on her death her son and heir
John Henry Mills came into possession of the land and that
he had sold the premises to Mrs. Sabina Love and that after
her purchase Mrs. Sabina Love had enclosed the said lands
and had manufactured bricks with the earth of the land she
purchased. The consideration for this conveyance was Rs.
1,200. It provided as follows :----" From to-day you become the owner of the said lands with
powers of making gift and sale. On keeping the said lands
together with the tank with all interests therein in your
possession and under your control, and on paying according
to the previous Patta the Mokarari annual rent of Rs. 480 in
Sicca coins into the Sherista of the Zemindar and on having
the previous name struck off from the landlord's Sherista
and getting your own name recorded therein, you do go on
enjoying and possessing the same with great felicity down to
your sons, grandsons etc., in succession . "On 10th Jeshta 1266 B.S. corresponding to 23rd May, 1859, a
notice under sections 9 and 10 of Regulation V of 1812 was
issued by the then Zemindars Rani934Lalanmoni and Raja Purna Chandra Roy. It was ,addressed to
" Mrs. Cynthia Mills Junior, Sarbarahkar Mr. Dobson, of
Salkhia. " It rail as follows: -" This is to inform you that you are in. possession of I
Bigha 19 Cottas of lands of different kinds as per the
boundaries given below as recorded in the Mal Department in
the said village for which according to your own statement
you are paying a yearly rental of Rs. 4126. But you have
taken no settlement in respect thereof from our estate
(sarkar). Now on fixing the annual Jama of the said lands
according to the prevailing rate as per Jamabandi at Rs.
137-8-0 a year, fifteen days' notice is given to you under
the provisions of sections 9 and 10 of Regulation V of 1812
and you are hereby informed that within the said period you
should appear before, our Zamindary Cutchery and accept a
Pottah after submitting a Kabuliyat according to the
practice in respect of the land and Jama. In default, after
the expiry of the said period action will be taken according
to law, and thereafter no plea shall be entertained."The requisition not having been complied with, the landlords
evidently filed a suit being Suit No. 590 of 1859. The
pleadings in this suit are not on the record. On 21st
September, 1860, the Principal Sudder Amin delivered his
judgment, Exhibit 24. It appears from that judgment that
the following two issues had been framed:-" 1. Whether the plaintiffs have served notice on the other
party for assessment of Jama ?2. Whether a Jama can be assessed in respect of the
disputed lands; if so at what rate?"The Principal Sudder Amin overruling the objection of the
defendants held that the landlords had full power to assess
the rent and accordingly he fixed the rent at Rs. 2 per
Cotta which worked out at Rs. 78 in respect of the entire
land. There was an appeal from that decision which,
however, was dismissed by the judgment Exhibit Z (2)
delivered on the 18th March, 1862 . The Mourashi Patta
relied upon was rejected as935it was not registered and appeared, on examination, to have
been newly written and filed. Thereafter the landlord filed
a suit for rent of the disputed lands# against Dobson and
Exhibits Z and Z (1) are the certified copies of the
judgment and order - passed thereon. On the 29th May, 1866,
Dobson executed two mortgages (Exhibits P/6 and P/7) in
favour of De Rozario and John Dominic Freitas for Rs. 4,000
and Rs, 2,000 respectively. The two re-conveyances dated
29th February, 1874, and 12th March, 1874, are also on the
record. On 6th March, 1874, Dobson sold the premises to
Henry Charles Mann by a deed which is Exhibit P/5. The
consideration for the sale was Rs. 9,500. It appears from
this deed that by that time there were two brick-built
dwelling houses on the property which came to be numbered as
Nos. 2 and 3, Watkin's Lane. On 11th September, 1883, Henry
Charles Mann sold the premises to George Jones for Rs.
10,000: vide Exhibit P/4. In both those sale deeds the
transferee is granted a heritable right forever. In the
assessment books of the Howrah Municipality (Exhibits 22
series) the interest of George Jones is described as
Mourashi. In the landlord's Sherista the nature of the
tenancy is not stated and Dobson continues to be the
recorded tenant (Exhibit D series). There was, however, no
column. in the rent receipts to indicate the status of the
tenant. It appears that on the death of George Jones the
estate came into the hands of the Administrator-General of
Bengal representing the estate of George Jones. In the rent
receipts of Dighapatia Raj the rent is said to be "received
from Jones--Administrator-General of Bengal." In May, 1931,
the plaintiff and the Administrator-General of Bengal
entered into an agreement for sale of premises No. 2,
Watkin's Lane, being a portion of the premises in question,
for a sum of Rs. 10,001 and Rs. 1,001 was paid by the
plaintiff as and by way of earnest money. The landlords
having declined to subdivide the ground rent between the two
portions of the premises, namely, Nos. 2 and 3, Watkin's
Lane, and a portion of the Premises No. 2, Watkin's Lane,
having fallen down the936agreement for sale appears to have fallen through. On the
4th June, 1932, the plaintiff suggested that a lease for 20
years should be granted which was refused by the
Administrator-General, Bengal. Then there was some
negotiation between the plaintiff and the Administrator-
General of Bengal for the sale of both the premises, Nos. 2
and 3, Watkin's Lane, to the plaintiff for a sum of Rs.
12,500. The plaintiff on 9th April, 1933, sent a draft deed
of sale (Exhibit 15) for the approval of the Administrator-
General of Bengal describing the premises as a Mokarari
Mourashi homestead. On 21st April, 1933, Dighapatia Raj
Estate wrote to the Administrator-General. of Bengal saying
that the tenancy was a Ticca one. On 6th June, 1933, the
Administrator-General of Bengal declined to approve the
draft as drawn. After some further proposal by the
plaintiff for a long lease he declined to purchase the
property on the ground that the Administrator-General of
Bengal had not a good marketable title. Nothing having come
out of the negotiations between the plaintiff and the
Administrator-General of Bengal the latter in September,
1936, invited offers for sale of the lands (Exhibit B). The
defendant No. I made the highest offer of Rs. 12,251. and
this was accepted by the Administrator-General in preference
to the offer made by the plaintiff for Rs. 11,251. The
Administrator-General accordingly executed a conveyance in
favour of the defendant Pratul Chandra Ghose (Exhibit P. X)
who thereupon became the tenant of the premises. Having
failed to obtain title to the premises from the
Administrator-General of Bengal the plaintiff approached the
landlords and on 22nd September, 1937, obtained a Mokarari
Mourashi Patta in respect of the disputed land on payment of
a Selami of Rs. 3,205 and at an annual rent of Rs. 78 only.
The defendant Pratul Chandra Ghose filed rent suits against
the plaintiff in respect of the underlease held by the
latter under the Administrator-General of Bengal and
obtained rent decrees. The plaintiff, however, on the
strength of his new title derived from the superior
landlords under the Mourashi Patta served937notice on the defendant Pratul Chandra Ghose on the 7th
October, 1937, requiring him to vacate the premises on the
last day of the month of Chaitra 1944 B. S. The defendant
Pratul Chandra Ghose, not having vacated the premises, the
plaintiff filed the suit out of which the present appeal has
arisen.Shri N. C. Chatterjee contends that in view of the decision
in the suit of 1859 it was not open to the defendant Pratul
Chandra Ghose to contend that his tenancy was a heritable
permanent tenancy. This point was neither pleaded nor
raised in the trial Court but was put forward for the first
time before the High Court. The pleadings of the 1859 suit
are not on the record but the substance of' the written
statement appears from the judgment Exhibit 24 passedin
that case. The issues framedin that casehave already been
set out. There was no issue regarding the character of the
tenancy, namely, whether it was permanent and heritable or
otherwise. The only question there was whether rent could
be assessed tinder the Regulation. There is nothing in that
Regulation suggesting that rent could be assessed only if
the tenancy was a ticca tenancy or that rent could not be
assessed if the tenancy was a permanent one. The question
of permanency of the tenancy was not, therefore, directly or
substantially in issue. We find ourselves in agreement with
the High Court that the permanency of tenure does not
necessarily imply both fixity of rent and fixity of
occupation. The fact of enhancement of rent in 1859 may be
a circumstance to be taken into consideration but it does
not necessarily militate against the tenancy being a
permanent one, as held by the Privy Council in the case of
an agricultural tenancy in Shankarrao v. Sambhu Wallad(l).The principle of that decision was applied also to non-
agricultural tenancies inJogendra Krishna Banerji v. Sm.
Subashini Dassi(2).In Probhas Chandra Mallik v. Debendra
Nath Das(3) also the same view was taken. We, therefore,
hold that the plea of res judicata cannot be sustained.
(1) (1940) 45 C.W.N. 57.(2) (1940) C.W.N. 590. (3) (1939) 43 C.W.N, 828,121938Shri N. C. Chatterjee then contends, relying on the
decisions in Rasmoy Purkatt v. Srinath Moyra (1), Digbijoy
Roy v. Shaikh Aya Rahman (2), Satyendra Nath v. Charu Sankar(3 ) and Kamal Kumar Datta v. Nanda Lal Dule ( 4 ) that the
tenancy in this case cannot be regarded as a permanent one.
The decisions in those cases have to be read in the light of
the facts of those particular cases.The mere fact of rent
having been received from a certain person may not, as held
in Rasamoy Purkatt v. Srinath Moyra (supra) and Digbijoy Roy
v. Shaikh Aya Rahman (supra), amount to a recognition of
that person as a tenant.Mere possession for generations at
a uniform rent or construction of permanent structure by
itself may not be conclusive proof of a permanent right as
held in Kamal Kumar Dutt v. Nanda Lal Dule (supra) but the
cumulative effect of such fact coupled with several other
facts may lead to the inference of a permanent tenancy as
indicated even in the case ofSatyendra Nath v. Charu Sankar(supra) on which Shri N. C. Chatterjee relies. What, then,
are the salient facts before us ? It is not known how the
earliest known tenant Shaik Manik acquired the tenancy or
what the nature of that tenancy was. The tenancy has passed
from one person to another by inheritance or by will or by
transfers inter vivos. In the deeds of transfer the
transferee has been given the right to enjoy the property
from generation to generation for ever. A tank has been
excavated and a pucca ghat built on the land. Bricks have
been manufactured with the earth taken from the land and the
premises have been enclosed within pucca walls. Pucca
buildings have been erected and mortgages have been executed
for substantial amounts. Although there was an enhancement
of rent in 1860 that rent has continued to be paid ever
since then. Portion of the premises, namely, No. 2,
Watkin's Lane, has been used as a factory by the plaintiffs
and on the other portion, namely, No. 3, Watkin's Lane,
residential buildings were -erected which indicate that the
lease was for residential purposes. As already
(1) 7 C.W.N. 132
(2) 17 C.W.N. 156.(3) 40 C.W.N. 854.(4) (1929) I.L.R. 56 Cal. 738.939indicated there have been many transfers and devolutions and
the landlords have accepted rent' from the transferees or
the successors. The names of Mrs. Cynthia Mills and Dobson
and, Jones were mutated in the Zamindar's Sherista.
Although in the rent receipts Dobson continued to be shown
as the recorded tenant, eventually Jones's name appears on
the rent receipts as tenant. In spite of the increase in
land value and the letting value the landlords through whom
the plaintiff derives his title did not at any time make may
attempt to eject the tenant or to get any further
enhancement of rent since 1860. All these circumstances put
together are explicable only on the hypothesis of permanency
of the tenure and they irresistibly lead to the conclusion,
as held by the lower Courts, that the tenancy in question
was heritable and a permanent one. The decision of
Mukherjea, J., in the case of Probhas Chandra Mallick v.
Debendra Nath Das (supra) is definitely in point. In this
view of the matter we hold that the Courts below were right
in dismissing the plaintiff's claim for ejectment.'
In the result this appeal must fail and we dismiss it with
costs.Appeal dismissed.Agent for the appellant: P. K. Ghosh.Agent for the respondent: Sukumar Ghose. |