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ARIJIT PASAYAT

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Labour Laws: Uttar Pradesh Absorption of Retrenched Employee of Government/Corporations in Government Service Rules, 1991-ss. 2(b) and 2(c)-Closure of Institution registered under Societies Registration Act-Retrenchment of its employees-Writ Petition-Single Judge of High Court directing absorption of retrenched employees holding the institution as an instrumentality of the Government-Order of Single Judge reversed by Division Bench of High Court-On appeal, held: The retrenched employees are not entitled to be absorbed-Absorption Rules are not applicable to the Institution in question-As the Institution is not an instrumentality of the State and the same has not been constituted under any Uttar Pradesh Act-Societies Registration Act, 1860. The institution, of which the appellants were the employees, was registered under Societies Registration Act, 1860. It decided to close down one of its centres and the workmen employed therein, were to be retrenched after paying compensation. Appellants-retrenched employees filed Writ Petition. Single Judge of High Court allowed the same holding that the Institution was wholly owned, controlled and managed by the State Government and directed appointment of the employees by their absorption in any other institution of State Government. Special appeal, thereagainst was allowed by High Court holding that the institution was not an instrumentality of the State Government and hence could not be termed as State Government or a public Corporation. In appeal to this Court, appellant contended that even though, the institution was registered under Societies Registration Act, that does not mean that it was not established or constituted under any State Act, and hence they were entitled to protection under Uttar Pradesh Absorption of Retrenched Employees of Government/Corporation in Government Service Rules, 1991. =Dismissing the appeals, the Court HELD: 1. Uttar Pradesh Absorption of Retrenched Employees of Government/Corporations in Government Service Rules, 1991 are not applicable to the Institution. A bare reading of ss. 2(b) and 2(c) of the Absorption Rules, makes the positions clear that in order to bring application of the Rules the public corporation has to be a body corporate established or constituted by or under any Uttar Pradesh Act. The fundamental requirement is that the corporation should have been constituted by or under any Uttar Pradesh Act. Undisputedly, the Societies Registration Act is a Central Act. The Institution is not an instrumentality of the State and/or could not be termed to be State Government or a public Corporation. There was no material placed before the High Court to establish that IERT is an instrumentality of the State. [Paras 3, 7, 8, 9 and 10] [192-D-E; 193-A-B; 198-A-B-C] 2. Even if a society or institute is registered under the Societies Registration Act and some functionaries of the State Government are the members of the institute, such an institute may not be termed as an instrumentality of the State, if deep and pervasive control over the affairs of the institute was not with the State Government. There is basic distinction between a Society and a Corporation. [Para 7] [193-B-C] Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and Ors., [2002] 5 SCC 111; Board of Trustees, Ayurvedic and Unani Tibia College, Delhi v. State of Delhi (Now Delhi Adminstration) and Anr., AIR (1962) SC 458, relied on. Ajay Hasia and Ors. v. Khalid Mujib Sebravardi and Ors., [1981] 1 SCC 722, referred to. P. Vishwanantha Shetty, S.J. Aristotle, Yatish Mohan, E.C. Vidya Sagar, Shekhar Prit Jha and Dr. Bheem Pratap Singh for the Appellants. Dinesh Dwivedi, Niranjana Singh, Abhishek Chaudhary and Seita Vaidyalingam for the Respondents.=2008 AIR 30 , 2007(10 )SCR189 , 2007(8 )SCC171 , 2007(11 )SCALE361 ,

CASE NO.: Appeal (civil) 4590 of 2004 PETITIONER: Mohammad Sadiq & Ors RESPONDENT: State of Uttar Pradesh & Ors DATE OF JUDGMENT: 21/09/2007 BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA JUDGMENT: J U D G M E N T CIVIL APPEAL NO. 4590 OF 2004 [With Civil Appeal No.4606 of 2004] Dr. ARIJIT PASAYAT, … Continue reading

Sentence/Sentencing: Commutation of death sentence to life imprisonment by the Governor – No reason indicated in the order which was passed on recommendation of NHRC – Writ petition under Article 32 challenging order of Governor – Held: NHRC proceedings were not in line with the procedure prescribed under the 1993 Act – That being so, recommendations by NHRC was non est – Moreover said order did not indicate reasons – Governor’s order is set aside – Protection of Human Rights Act, 1993 – Constitution of India, 1950 – Article 32. Writ petition under Article 32 of the Constitution of India was filed challenging the order of Governor of Assam, commuting the death sentence to life imprisonment when the accused was held guilty of heinous crime of brutally killing four persons of a family. He was awarded death sentence which was confirmed by this court and review thereagainst was also dismissed. The order of commutation was passed on recommendation of NHRC. =Partly allowing the writ petition, the Court HELD: 1. In the documents filed before this Court by NHRC, the name of victim was stated and cause of action was stated to be the date of judgment of this Court i.e. 31.7.2000. The Protection of Human Rights Act, 1993 was enacted for constitution of NHRC for better protection of human rights and for matters connected therewith or incidental thereto. Section 17 in Chapter IV deals with inquiry into complaints regarding violation of human rights. Obviously, there have to be atleast two persons involved. One whose human rights have been violated and the other who has violated the human rights. [Para 7 and 8] [504-C-G] 2. The NHRC proceedings were not in line with the procedure prescribed under the Act. That being so, the recommendations, if any, by the NHRC are non est. [Para 14] [505-G-H; 506-A] 3. The State of Assam indicated that not only the recommendations of NHRC but several other aspects were take note of. But the order directing commutation did not indicate any reason. Absence of any obligation to convey the reasons would not mean that there should not be legitimate or relevant reasons for passing the order. Apparently, in the instant case that was not done. The impugned order of commutation of death sentence to life imprisonment is set aside and direction is passed to reconsider the application filed by the accused for commutation of sentence. [Para 15 and 16] [506-A-E] Epuru Sudhakar v. Govt. of A.P. and Ors. (2006) 8 SCC 161, relied on. Case Law Reference: (2006) 8 SCC 161 relied on Para 15 CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No. 457 of 2005. Under Article 32 of the Constitution of India. Manish Goswami and Map & Co. for the Appellant. Avijit Roy (for M/s. Corporate Law Group), Vijay Panjwani, Shobha, J.B. Prakash and Puja Sharma for the Respondent.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. 457 OF 2005 Bani Kanta Das and Anr. …Petitioners Versus State of Assam and Ors. ..Respondents JUDGMENT Dr. ARIJIT PASAYAT, J. 1. This petition under Article 32 of the Constitution of India, 1950 has been filed by Smt. Jayanti Das w/o … Continue reading

Contract Act, 1872 – s. 230 – Booking of car pursuant to advertisement by Car manufacturing company – On non-allotment of car, refund of booking amount sought – On failure thereof, claim before MRTP Commission – Dealer of the company making application that it was not liable to refund being only an agent of the Company – Dismissal of application – On appeal held: Agent is not liable for the acts of a disclosed principal subject to contract to the contrary – On facts, no contract to the contrary pleaded – Hence, dealer company not liable to refund the booking amount – Monopolies and Restrictive Trade Practices Act, 1969 – s. 12-B. An international car manufacturing company entered into agreement for manufacture and sale of a particular model of a car with an Indian Car manufacturing company. Appellant company was the dealer/agent of the Indian Company. In pursuance of an advertisement by the contracting companies, respondent No.1 applied for allotment of a car with the booking amount. On non- delivery of the car, respondent No. 1 sough refund of the amount. On failure thereof, he filed a petition u/s. 12-B of Monopolies and Restrictive Trade Practices Act, 1969. Appellant-company filed application before MRTP Commission on the plea that, it being only an agent/dealer was not liable to refund the amount. Application was dismissed. Hence the present appeal. =Allowing the appeal, the Court HELD: Section 230 of the Contract Act categorically makes it clear that an agent is not liable for the acts of a disclosed principal, subject to a contract of the contrary. No such contract to the contrary has been pleaded. Appellant-company was dealer of the Indian Company, with whom the International Company had entered into an agreement. The appellant had nothing to do with the advertisement, in response to which the individuals had applied for the said car. The cheque submitted by the individual person, whoever was interested in purchasing the said car was given in the name of the Indian Car manufacturing Company and the appellant Company had no other role except to send the same to the Indian Company. [Paras 3 and 4] [48-A; 48-E; 47-C; 47-H] Marine Contained Services South Pvt. Ltd. vs. Go Go Garments AIR 1999 (SC) 80 – relied on. Case Law Reference : AIR 1999 (SC) 80 Relied on. Para 4 Irshad Ahmad for the Appellant. P.N. Puri, Dhiraj, Sanjeev Sharma and Reeta Dewan Puri for the Respondent. =, , , 2008(14 )SCALE226 , 2008(12 )JT307

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. OF 2008 (Arising out of SLP (C) No.19515 of 2004) Prem Nath Motors Ltd. ….Appellant Versus Anurag Mittal ….Respondent JUDGMENT Dr. ARIJIT PASAYAT, J. 1. Leave granted. 2. Challenge in this appeal is to the order passed by Monopolies Restrictive Trade Practices … Continue reading

Hindu Adoption & Maintenance Act, 1956 – ss. 3 and 18 – Maintenance – Right of wife to reside in matrimonial home – Wife and children residing in the suit property – Decree for possession of suit property in favour of husband – Challenge to, by wife on the ground that she already obtained charged decree for maintenance over suit property – Dismissed by High Court holding that wife could not claim right of residence in matrimonial home so as to resist decree for possession – On appeal, held: Supreme Court in Mangat Mal’s and B.P. Achala Anand’s cases examined the question as to whether maintenance encompasses provision for residence – Matter remitted to High Court to consider the issues in the light of the ratio of aforesaid cases – Transfer of Property Act, 1882 – s. 39. The relationship between the respondent no. 1-husband and the appellant- wife were estranged. Respondent no. 1 filed suit for declaration of title and recovery of possession in respect of Schedule property where appellant and respondent no. 2 and 3-children were residing. Trial court and the First Appellate Court decreed the suit in favour of respondent no. 1. Appellant filed second appeal on the ground that she had right to reside in the matrimonial home situated in the Scheduled property and that she had already obtained charged decree for maintenance over the Schedule property. High Court dismissed the appeal holding that the wife could not claim a right of residence in the matrimonial home so as to resist a decree for possession. Hence the present appeal. =Disposing of the appeal, the Court HELD:1.1. Maintenance necessarily must encompass a provision for residence. Maintenance is given so that the lady can live in the manner, more or less, to which she was accustomed. The concept of maintenance must, therefore, include provision for food and clothing and the like and take into account the basic need of a roof over the head. Provision for residence may be made either by giving a lump sum in money, or property in lieu thereof. It may also be made by providing, for the course of the lady`s life, a residence and money for other necessary expenditure. Where provision is made in this manner, by giving a life interest in property for the purpose of residence, that provision is made in lieu of a pre-existing right to maintenance and the Hindu lady acquires far more than the vestige of title which is deemed sufficient to attract s. 14 (1) of the Hindu Succession Act, 1956. [Para 9] [80-C-D-E] 1.2. The Hindu Adoption & Maintenance Act, 1956, was enacted to amend and codify the law relating to adoptions and maintenance among Hindus, and it defines maintenance in Section 3 (d) to include “(1) In all cases, provision for food, clothing, residence, education and medical attendance and treatment.” [Para 11] [81-G] 1.3. The High Court did not consider the aspect whether maintenance encompasses a provision for residence as considered in Mangat Mal’s and B.P. Achala Anand’s cases. It will be appropriate for the High Court to consider the issues by re-hearing the appeal in the light of what has been stated in Mangat Mal’s and B.P. Achala Anand’s cases. [Para 13] [82-F] Mangat Mal (Dead) and Anr. vs. Punni Devi (Dead) and Ors. 1995 (6) SCC 88 and B.P. Achala Anand vs. S. Appi Reddy and Anr. 2005 (2) SCALE 105, referred to. Mulla’s Hindu Law (Sixteenth Edition), referred to. Case Law Reference: 1995 (6) SCC 88 Referred to. Para 6 2005 (2) SCALE 105 Referred to. Para 12 G. Prakash, for the Appellant. K. Rajeev, for the Respondents. =, , , 2008(14 )SCALE470 , 2008(12 )JT157

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. OF 2008 (Arising out of S.L.P. (C) No.3670 of 2005) Komalam Amma …..Appellant Vs. Kumara Pillai Raghavan Pillai and Ors. …..Respondents JUDGMENT Dr. ARIJIT PASAYAT, J. 1. Leave granted. 2. Challenge in this appeal is to the judgment of a learned Single … Continue reading

Code of Civil Procedure, 1908-Order VIII, Rule 1 (As amended by Code of Civil Procedure (Amendment) Act, 2002-Written statement filed beyond maximum period-Acceptance of-Held: It was in discretion of court-Amended Order VIII, Rule 1 though worded in negative form, was not mandatory keeping in view the context in which it was enacted-Neither the power of Court to take on record written statement filed beyond time is specifically taken away nor consequences of non-extension of time specifically provided for. Respondent was served with summons issued by the trial court. They filed their written statement beyond 90 days, which was the magimum period allowed, apart from the normal period of 30 days from the date of service of summons. Appellant objected to same. However, Trial Court accepted the written statement, and High Court dismissed appeal of appellant against same. Hence the present appeal. Appellant contended that after substitution of Order VIII, Rule 1 by Code of Civil Procedure (Amendment), 2002, the court had no discretion to extend the period for filing the written statement beyond the maximum period. =Dismissing the appeal, the Court HELD : 1. Order VII, Rule 1 after the amendment casts an obligation on the defendant to file the written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days. The provision does not deal with the power of the court and also does not specifically take away the power of the Court to take the written statement on record though filed beyond the time as provided for. Further, the nature of the provision contained in Order VIII Rule 1 is procedural. It is not a part of the substantive law. Substituted Order VIII, Rule l intends to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases causing inconvenience to the plaintiffs and petitioners approaching the court for quick relief and also to the serious inconvenience of the court faced with frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the same. While justice delayed may amount to justice denied, justice hurried may in some cases amount to justice buried. [756-C, D, E] Sushil Kumar Sen v. State of Bihar, [1975] 1 SCC 774; Shreenath and Anr. v. Rajesh and Ors., AIR (1998) SC 1827, referred to. Blyth v. Blyth, 1966 1 All. E.R. 524 (HL), referred to. 2. It is also to be noted that though the power of the Court under the proviso appended to Rule 1 of Order VIII is circumscribed by the words `shall not be later than ninety days’ but the consequences flowing from non-extension of time are not specifically provided though they may be read by necessary implication. Merely because a provision of law is couched in a negative language implying mandatory character, the same is not without exceptions. The courts, when called upon to interpret the nature of the provision, may, keeping in view the entire context in which the provision came to be enacted, hold the same to be directory though worded in negative form. [757-E, F] Salem Advocate Bar Association, Tamil Nadu v. Union of India, JT (2005) 6 SC 486, followed. Kailash v. Nankhu and Ors., [2005] 4 SCC 480, relied on. Nishakant Pandey and Alok Kumar for the Appellant. Aman Lekhi, Rajiv Ranjan Dwivedi, Nagendra Kumar, Harish Pandey, Syamel Kumar, Rakesh Kumar and Jaspreet Singh Rai for the Respondents.

CASE NO.: Appeal (civil) 5066 of 2005 PETITIONER: Smt. Rani Kusum RESPONDENT: Smt. Kanchan Devi and Ors. DATE OF JUDGMENT: 16/08/2005 BENCH: ARIJIT PASAYAT & H.K. SEMA JUDGMENT: J U D G M E N T (Arising out of SLP (C) No. 377 OF 2005) ARIJIT PASAYAT, J. Leave granted. Order passed by a learned … Continue reading

Code of Civil Procedure, 1908-Order VIII Rule 1 (as amended by Civil Procedure Code (Amendment) Act, 1999)-Written statement-Filing of-Extended time granted by Court beyond prescribed period-The extended date being holiday, written statement filed on the next day-Refusal by Court to accept, the same being beyond 90 days-Writ Petition-High Court held the Written Statement as unacceptable-On appeal, held: The Court could not have refused to accept the written statement as it was within the time granted by it-Party cannot suffer for the mistake of the Court-The provision being procedural, the same should not be construed as mandatory-It is always subservient to and in aid to justice. Interpretation of Statutes : Procedural Law-Interpretation of-Held: Unless compelled by express and specific language of the statute, procedural enactment ought not be construed in a manner which would leave the Court helpless to meet extraordinary situations in the ends of justice-It should not ordinarily be construed as mandatory-Merely because a provision is couched in a negative language implying mandatory character, the same is not without exceptions-It is subservient to and is in aid of justice-Any interpretation which eludes or frustrates the recipient of justice is not to be followed. Maxims: “actus curiae neminem gravabit” and “lex non cogit ad impossibilia”-Applicability of. In a civil suit filed by respondent No.1-plaintiff, appellants- defendants were directed to file Written Statement. On their having not filed the same within time, they sought extension of time to file the same. Time was allowed till 19.2.2004 which fell beyond 90 days. That date being a holiday, appellants filed the Written Statement the next day. Trial Court refused to accept the same on the ground that the Written Statement was filed beyond the period of 90 days. Appellants filed Writ Petition, which was dismissed on the ground that there was no scope for granting extension of time beyond the period of 90 days to file the Written Statement, in view of the amendment to CPC by Civil Procedure Code (Amendment) Act, 1999. In appeal to this Court appellants contended that Court itself had granted time to file Written Statement by 19.2.2004, and that date being holiday, Written Statement having been filed the next day, the view taken by the courts below was untenable. =Allowing the appeal, the Court HELD: 1.1. Order VIII Rule 1 CPC does not deal with the power of the court and also does not specifically take away the power of the court to take the Written Statement on record though filed beyond the time as provided for. Further, the nature of the provision contained in Order VIII, Rule 1 is procedural. It is not a part of the substantive law. Substituted Order VIII, Rule 1 by 1999 amendment intends to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases causing inconvenience to the plaintiffs and petitioners approaching the court for quick relief and also to the serious inconvenience of the court faced with frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the same. While justice delayed may amount to justice denied, justice hurried may in some cases amount to justice buried. [355-c, d, e] 1.2. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the Statute, the provisions of the CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice. [355-f, g] 1.3. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in Judges to act ex debito justiciae where the tragic sequel otherwise would be wholly inequitable. -Justice is the goal of jurisprudence – processual, as much as substantive. [355-h; 356-a] Sushil Kumar Sen v. State of Bihar, [1975] 1 SCC 774, referred to. 1.4. No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner for the time being by or for the Court in which the case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode. [356-b] Blyth v. Blyth [1966] 1 All E.R. 524 (HL), referred to. 1.5. A procedural law should not ordinarily be construed as mandatory, the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed. [356-c] Shreenath and Anr. v. Rajesh and Ors., AIR (1998) SC 1827, referred to. 1.6. Though the power of the Court under the proviso appended to Rule 1 of Order VIII is circumscribed by the words – “shall not be later than ninety days” but the consequences flowing from non-extension of time are not specifically provided though they may be read by necessary implication. Merely, because a provision of law is couched in a negative language implying mandatory character, the same is not without exceptions. The Courts, when called upon to interpret the nature of the provision, may, keeping in view the entire context in which the provision came to be enacted, hold the same to be directory though worded in the negative form. [356-e-f] Kailash v. Nanhku [2005] 4 SCC 480 and Rani Kusum (Smt.) v. Kanchan Devi (Smt.) and Ors., [2005] 6 SCC 705, relied on. Salem Advocate Bar Association, Tamil Nadu v. Union of India, JT (2002) 9 SC 175 and Salem Advocate Bar Association, Tamil Nadu v. Union of India, JT (2005) 6 SC 486, referred to. 2.1. The trial court had granted time up to 19.2.2004 which undisputedly fell beyond the 90 days’ period. Since 19.2.2004 happened to be a holiday, the Written Statement was filed on the next day. Had the Written Statement been filed on 19.2.2004, obviously the court could not have refused to accept the Written Statement as it was within the time granted by it. Merely because of a fortuitous circumstance the written statement came to be filed next day i.e. on account of the date fixed being a holiday that cannot make the Written Statement, filed, unacceptable. [358-e, f] 2.2. A party cannot be made to suffer if the court has committed a mistake if for the sake of argument it is held that the Court had mistakenly granted time beyond 90 days. [358-g] Kailash v. Nanhku, [2005] 4 SCC 480 and Rani Kusum (Smt.) v. Kanchan Devi (Smt.) and Ors., [2005] 6 SCC 705, relied on. 2.3. In the facts and circumstances of the case, the maxim of equity, namely, actus curiae neminem gravabit – an act of court shall prejudice no man, shall be applicable. This maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of law. The other maxim is, lex non cogit ad impossibilia – the law does not compel a man to do what he cannot possibly perform. The law itself and its administration is understood to disclaim as it does in its general aphorisms, all intention of compelling impossibilities, and the administration of law must adopt that general exception in the consideration of particular cases. [358-h; 359-a] Raj Kumar Dev v. Tarapada Dev, [1987] 4 SCC 398, Gursharan Singh v. New Delhi Municipal Committee, [1996] 2 SCC 459 and Mohammod Gazi v. State of M.P. and Ors., [2004] 4 SCC 342, referred to. Siddarth Luthra, Sher Singh, Pramod Dubey and Ms. Ruby Singh Ahuja for the Appellant. N.S. Gahlot, R.K. Singh, Jatinder Kumar Bhatia, B.S. Jain, Ajay Veer Singh, Ms. Charuwali Khanna and Dr. (Mrs.) Vipin Gupta for the Respondents.

CASE NO.: Appeal (civil) 6907 of 2005 PETITIONER: Mr. Shaikh Salim Haji Abdul Khayumsab RESPONDENT: Mr. Kumar & Ors. DATE OF JUDGMENT: 18/11/2005 BENCH: ARIJIT PASAYAT & R.V. RAVEENDRAN JUDGMENT: J U D G M E N T (Arising out of S.L.P. (C) No. 15807 of 2004) With Civil Appeal No.6918 of 2005 (Arising out … Continue reading

Limitation Act, 1963-Article 63-Possession of mortgage property by mortgagee-When becomes adverse against mortgagor-Held: On sale of mortgage property in favour of mortgagee, his/her status as mortgagee comes to an end and upon purchase, claims property as absolute owner-Possession becomes adverse to the mortgagor-original owner. Code of Civil Procedure, 1908-Order 34-Sale of part of property already mortgaged by mortgagor, to purchaser-Suit for declaration of title and possession of property by purchaser against mortgagee 12 years later-Maintainability of-Held: Suit for redemption of mortgage should have been filed and suit for declaration of title and possession is not maintainable -Mortgagee was in possession of the property, and also purchaser was claiming through mortgagor-Moreover, suit being filed after 12 years was time barred-Limitation Act, 1963-Article 63. Order 1, Rule 9-Non-impleadment of subsequent purchaser in money suit-Sale of property in execution of money decree and plaintiff becoming owner of property-Effect of-Held: Non-joinder is of no consequence since it was an independent transaction, he was neither necessary nor proper party and as such sale would bind him. Tamil Nadu Debt Relief Act, 1979-Mortgaged property sold in favour of mortgagee after four years-Plea of mortgagor and subsequent purchaser that mortgagee in possession of property for more than ten years as usufructuary mortgagee, as such mortgage statutorily discharged-Held: After auction sale, mortgagee became owner of property-Hence, provisions of the Act not applicable and benefit cannot be claimed. `A’, original owner of the property, mortgaged the property to defendant No. 1 in 1962 and since then defendant No. 1 was in possession of the property as usufructuary mortgagee. `A’ took another loan from defendant no 1 on other pro-note. In 1964 `A’ sold part of the property to respondent-plaintiff and the sale deed recited the factum of mortgage by `A’ to defendant no. 1. Since `A’ did not repay the amount under the separate pro-note, defendant no 1 filed money suit against `A’ and a decree was passed against `A’. In execution proceedings, the suit property was sold in public auction in 1966 and defendant no. 1-mortgagee purchased the same with the permission of the Court, sale certificate was issued and she took possession of the property. Subsequently, defendant no 1 sold the property to defendant No. 2. In 1980, respondent – plaintiff filed a suit for declaration of title and possession of part of the property against defendant No. 1. Respondent – plaintiff alleged that the respondent – plaintiff had purchased part of the suit property and had become owner of that portion; that defendant no. 1 was in possession of the property only as mortgagee of the property and continued to remain the same even after auction sale by court; that defendant no. 1 being in possession for more than ten years as mortgagee, mortgage was statutorily discharged under the Tamil Nadu Debt Relief Act, 1979 and as such was bound to deliver possession of the property. Defendant no. 1 contended that the suit was not maintainable since respondent – plaintiff ought to have instituted a suit for redemption of mortgage and not for declaration of title; that after the auction sale and confirmation thereof by Court, defendant no. 1 became owner of the property as she acquired title by adverse possession; that the debtor was not entitled to any benefit under the 1979 Act; and that the suit was barred by limitation. Trial Court passed decree in favour of respondent – plaintiff for title and possession of the property. Defendant no. 1 then filed an appeal. Lower Appellate Court allowed the appeal and set aside the decree passed by the trial court holding that after the auction sale by the Court and its confirmation, defendant No. 1 no more continued to be mortgagee in possession and her title was adverse to the mortgagor; that suit for redemption of mortgage should have been filed and not for declaration of title and possession of mortgage-property; that the suit was barred by limitation; and that defendant no. 1 filed money suit against `A’ and even though plaintiff was not impleaded, decree passed and sale of property was binding on the plaintiff. Aggrieved respondent – plaintiff filed Second Appeal. High Court upheld the order of trial court and allowed the appeal. Hence, the present appeal. Appellant – defendants contended that the Lower Appellate Court rightly dismissed the suit filed by the respondent – plaintiff; and the High Court erred in restoring the decree passed by trial court in favour of the respondent-plaintiff for title and possession of the property. =Allowing the appeal, the Court HELD: 1.1. In the instant case, it is correct to say that once the property was sold to defendant no. 1 who was mortgagee in possession, she could not be continued as mortgagee inasmuch as after the sale, she was claiming the property as an absolute owner thereof, her status as mortgagee came to an end with the purchase of property and in the eye of law, it could be said that she was claiming title over the property which was adverse to the owner of the property; and that when `A’ sold part of the suit property to the respondent – plaintiff, the property was already mortgaged to defendant No. 1 who was in possession of the property and that since the respondent – plaintiff was claiming through A – original owner, the respondent – plaintiff ought to have filed a suit for redemption of mortgage and not for declaration of title and possession of property; and as such respondent’s suit was not maintainable. [113-e-f; 116-f-g] 1.2. The auction took place on August 3, 1966 and the sale was confirmed and sale certificate was issued in favour of defendant No. 1 on September 5, 1966. Admittedly, the respondent – plaintiff filed suit in 1980, which was, after a period of twelve years and it was barred under Article 61 of the Limitation Act, 1963. Hence, Lower Appellate Court was right in dismissing the suit. [116-e-g] Padma Vithoba Chakkayya v. Mohammed Multani and Anr., AIR (1963) SC 70: [1963] 2 SCR 229 and Soni Lalji Jetha (deceased) through his LRs. v. Soni Kalidas Devchand and Ors., AIR (1967) SC 978: [1967] 1 SCR 974, relied on. L. Shankaran Laxmi and Ors. v. Adim Kunju, AIR (1965) Ker 132 and K. Gopalan Thanthri v. Ittira Kelan and Ors., AIR (1970) Ker 305 (FB), referred to. 2. In the suit for recovery of money, decree passed therein and execution proceedings and auction sale did not relate to mortgage dues but an independent transaction and a separate pro-note and recovery of that amount. In such suit, respondent was neither necessary nor proper party and non-joinder of plaintiff was of no consequence. Further, in execution of money-decree in that suit, defendant no.1 purchased the property with the leave of the court and became the owner of the property and plaintiff had no right to raise an objection against the right of defendant no. 1. [117-c] Ramaswami Gounder v. Ramaswami Gounder (1974) 1 Mad LJ 350: 87 LW 454, referred to. 3. Regarding deemed discharge of debt under the Tamil Nadu Debt Relief Act, 1979, on auction-sale in favour of defendant no. 1 in 1966, she became the owner of the property or in any case, she was claiming to be in adverse possession of the suit property. After 1966, defendant no. 1 was not holding the property as mortgagee in possession. Hence, the provisions of the Act were not applicable and neither `A’ nor respondent – plaintiff could claim benefit of the said Act. [117-e] R. Sundaravaradan, R.N. Keshwani and Ramlal Roy for the Appellants. A.T.M. Sampath and Mrs. R. Meena Kumari for the Respondents.

CASE NO.: Appeal (civil) 6544 of 1999 PETITIONER: Rukmani Ammal and Anr. RESPONDENT: Jagdeesa Gounder DATE OF JUDGMENT: 09/11/2005 BENCH: Arijit Pasayat and C.K. Thakker JUDGMENT: JUDGMENT C.K. THAKKER, J. The present appeal is directed against the judgment and decree passed by the High Court of Madras in Second Appeal No. 1939 of 1986. By … Continue reading

KARNATAKA CERTAIN INAMS ABOLITION ACT, 1977: ss. 4 (2) (b) and 10 – Abolition of Inams – Inamdar regranted the land – Erstwhile mortgagee claiming the mortgage to have been revived consequently – Held: High Court was not justified in concluding that s. 43 of Transfer of Property Act is relevant – Neither s. 43 of TP Act nor s. 10 of Karnataka Act has application to the facts of the case -Matter remitted to High Court for consideration afresh – Transfer of Property Act, 1882 – s. 43 – Doctrine of feeding the estoppel. A religious institution, namely, Kannada Mutt, was granted certain Jagir lands. Upon abolition of Inams by virtue of Karnataka Certain Inams Abolition Act, 1977, the lands stood vested with the State Government. However, the appellant being the Matadhisathi of the Mutt was allowed re- grant of the land. The respondents, who were the erstwhile mortgagees, claimed possession of the land in question contending that by virtue of order of re-grant in favour of the appellant, the earlier mortgage was revived and possession of the land could not be granted to the appellant. When the matter reached the Division Bench of the High Court in writ appeals, it held that s. 43 of the Transfer of Property Act, 1882 was applicable. Aggrieved, the Mathadhipati filed the appeals. = Allowing the appeals, the Court HELD: 1.1 A bare reading of s.4 of the Karnataka Certain Inams Abolition Act, 1977 makes it clear that notwithstanding any contract, all Inam tenures stood abolished and the consequences were the passing of the rights, title and interests as provided in s.4(2)(b). Section 10 of the Act has no application to the facts of the case. [para 6-7] [ 442-E, F; 443-B] Syed Bhasheer Ahamed and Ors. V. State of Karnataka ILR 1994 Kar 159 – distinguished. 1.2 The sine quo non for application of s.43 is that at the initial stage the person should have fraudulently or erroneously represented that he is authorized to transfer certain immovable property or professes to transfer such property for consideration. Only then the question of option of the transferee arises in case the transferor acquires any interest in the property at any time during which the contract of transfer subsists. Therefore, the High Court was not justified in concluding that s.43 is relevant. [para 6] [ 442-G, H; 443-A] 2. Without expressing any opinion about the acceptability of any stand taken by the respondents, the judgment of the High Court is set aside and the matter is remitted to it for consideration afresh. It is made clear that the issue relating to applicability of s.43 stands closed. [para 8] [444-B, C] Case Law Reference ILR 1994 Kar 159 distinguished para 6 CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1040-1053 of 2009 From the Judgement and Order dated 12.09.2007 of the Hon’ble High Court of Karnataka at Bangalore in W.A. No. 1936-40 & 1941-45 of 2005 Rama Jois, G.V. Chandrshekar, N.K. Verma, Anjana, Chandrashekar, for the Appellant. A.K. Subbaiah, S.J. Amith, Aparna Bhat, Kiran Suri, Sanjay R. Hegde, for the Respondent.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 1040-1053 OF 2009 (Arising out of SLP (C) Nos. 3733-3746 of 2008) Ni. Pra Channabasava D.S. Matadhipathigalu ..Appellant Kannada Mutt Versus C.P. Kaveeramma and Ors. ..Respondents JUDGMENT Dr. ARIJIT PASAYAT, J. 1. Leave granted. 2. Challenge in these appeals is to the … Continue reading

KARNATAKA CERTAIN INAMS ABOLITION ACT, 1977: ss. 4 (2) (b) and 10 – Abolition of Inams – Inamdar regranted the land – Erstwhile mortgagee claiming the mortgage to have been revived consequently – Held: High Court was not justified in concluding that s. 43 of Transfer of Property Act is relevant – Neither s. 43 of TP Act nor s. 10 of Karnataka Act has application to the facts of the case -Matter remitted to High Court for consideration afresh – Transfer of Property Act, 1882 – s. 43 – Doctrine of feeding the estoppel. A religious institution, namely, Kannada Mutt, was granted certain Jagir lands. Upon abolition of Inams by virtue of Karnataka Certain Inams Abolition Act, 1977, the lands stood vested with the State Government. However, the appellant being the Matadhisathi of the Mutt was allowed re- grant of the land. The respondents, who were the erstwhile mortgagees, claimed possession of the land in question contending that by virtue of order of re-grant in favour of the appellant, the earlier mortgage was revived and possession of the land could not be granted to the appellant. When the matter reached the Division Bench of the High Court in writ appeals, it held that s. 43 of the Transfer of Property Act, 1882 was applicable. Aggrieved, the Mathadhipati filed the appeals. =Allowing the appeals, the Court HELD: 1.1 A bare reading of s.4 of the Karnataka Certain Inams Abolition Act, 1977 makes it clear that notwithstanding any contract, all Inam tenures stood abolished and the consequences were the passing of the rights, title and interests as provided in s.4(2)(b). Section 10 of the Act has no application to the facts of the case. [para 6-7] [ 442-E, F; 443-B] Syed Bhasheer Ahamed and Ors. V. State of Karnataka ILR 1994 Kar 159 – distinguished. 1.2 The sine quo non for application of s.43 is that at the initial stage the person should have fraudulently or erroneously represented that he is authorized to transfer certain immovable property or professes to transfer such property for consideration. Only then the question of option of the transferee arises in case the transferor acquires any interest in the property at any time during which the contract of transfer subsists. Therefore, the High Court was not justified in concluding that s.43 is relevant. [para 6] [ 442-G, H; 443-A] 2. Without expressing any opinion about the acceptability of any stand taken by the respondents, the judgment of the High Court is set aside and the matter is remitted to it for consideration afresh. It is made clear that the issue relating to applicability of s.43 stands closed. [para 8] [444-B, C] Case Law Reference ILR 1994 Kar 159 distinguished para 6 CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1040-1053 of 2009 From the Judgement and Order dated 12.09.2007 of the Hon’ble High Court of Karnataka at Bangalore in W.A. No. 1936-40 & 1941-45 of 2005 Rama Jois, G.V. Chandrshekar, N.K. Verma, Anjana, Chandrashekar, for the Appellant. A.K. Subbaiah, S.J. Amith, Aparna Bhat, Kiran Suri, Sanjay R. Hegde, for the Respondent.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 1040-1053 OF 2009 (Arising out of SLP (C) Nos. 3733-3746 of 2008) Ni. Pra Channabasava D.S. Matadhipathigalu ..Appellant Kannada Mutt Versus C.P. Kaveeramma and Ors. ..Respondents JUDGMENT Dr. ARIJIT PASAYAT, J. 1. Leave granted. 2. Challenge in these appeals is to the … Continue reading

Dismissing the appeals of the Board and allowing those of the consumers, the Court HELD: 1.1. The significance of the question as to whether fixing the rate of fuel surcharge is a legislative function or a non-legislative function is that if the function is held to be legislative, in the absence of any provision in that regard the principles of natural justice would not be applicable and the scope of judicial review would also be limited to the plea of discrimination i.e. violation of Article 14 of the Constitution of India, 1950. [Para 21] [311-C, D] Prag Ice and Oil Mills v. Union of India AIR 1978 SC 1296; Rohtas Industries v. Bihar State Electricity Board AIR 1984 SC 657 and Kerala State Electricity Board v. M/s S.N. Govind Prabhu & Brothers AIR 1986 Supreme Court 1999, relied on. Saraswati Industrial Syndicate Limited v. Union of India AIR 1975 SC 460; Union of India v. Cynamide India Ltd. AIR 1987 SC 1802 and Shri Sitaram Sugar Company Ltd. v. Union of India 1990 (3) SCC 223, referred to. 1.2. In a sense, fixing rate of fuel surcharge under clause 16.10 of the Tariff notification is different from fixing the tariff u/s 49 of the Electricity (Supply) Act. Fuel surcharge is undoubtedly a part of tariff. But fixing rates of consumption charges or the guaranteed charges or the fixed charges or the delayed payment surcharge etc. and fixing rates of fuel surcharge do not stand on par. Though rates of consumption charges etc. are based on objective materials, there is enough scope for flexibility in fixing the rates. It also involves policy to fix different rates for different categories of consumers. Such is not the position with the fuel surcharge. [Para 26] [313-B, C] 1.3. Clause 16.10.1 specifies the categories coming in the net of the levy and clause 16.10.3 provides the formula. The formula envisages addition of units generated or purchased and increased average cost of fuel and average unit rate of purchase rates and division of the total by the quotient is the average fuel surcharge per unit (expressed in terms of paise) described by denominator S1 in the formula. The whole exercise, it would appear, involves arithmetical accounting. There is no scope for exercise of any discretion or flexibility. If fixing rate of fuel surcharge is just an arithmetical exercise, giving opportunity of hearing would hardly serve any useful purpose. [Para 26] [311-D, E] 1.4. Where the fixation of rate or determination of the amount is made individually, depending on the context in which this is to be done, there may be justification or necessity to give opportunity of hearing to the person(s) concerned. But where the rate is fixed for persons at large the only way by which such opportunity can be given is to notify the rates and then invite objections. There is no such provision. In the absence of any mechanism provided in the Tariff notification, it would not be feasible at all. [Para 27] [315-F, G] 2.1. The validity of the formula had been upheld earlier. High Court noted that though by the impugned circular dated 31.5.1999 the rates of fuel surcharge have been fixed for the years 1993-94 (July 1993 to March 1994) to 1997-98, the correctness of the rates fixed for the years 1993-94 (July 1994 to March 1994) to 1995-96 were not challenged and correctness of the rates for the subsequent years only was under challenge. [Para 29] [317-C, D] Bihar State Electricity Board and anr. v. Bihar 440 Volt Vidyut Upbhokta Sangh and Ors. 1997 (11) SCC 380 and Kerala State Electricity Board v. S.N. Govind Prabhu & Brothers AIR 1986 SC 1999, referred to. 2.2. The Electricity Board is entitled to levy fuel surcharge on the consumers receiving high tension supply leaving out the consumers coming in other categories. [Para 30] [317-F] Maharashtra State Electricity Board v. Kalyan Borough Municipality AIR 1968 SC 991; M/s Rohtas Industries Limited v. Chairman, Bihar State Electricity Board AIR 1984 SC 657, relied on. 3.1. It is not in dispute that TVNL came into existence in 1996-97 whereas while calculating the electricity 1991-92 is to be treated as the base year. As a matter of fact, it was on that ground, namely, that a different base year i.e. 1992-93 was provided for computing the increase in the average unit rate of purchase of electricity from external sources, that the High Court directed the Board to consider amending clause 16.10.3 so as to provide for the same base year i.e. 1991-92 with respect to both the increase in the average cost of generation and increase in the rates of purchase, and accepting the verdict of the High Court the Board amended the last part of clause 16.10.3. Purchase of electricity from TVNL which admittedly came into existence in the year 1996-97, therefore, cannot be treated as component of H3 i.e. increase in the average unit rate of purchase of electricity from “any other source”. As a matter of fact, the case of writ petitioners was that the TVNL is nothing but a unit of the Board in disguise of a subsidiary company and, therefore, could not be treated as a component of H3. It may not be necessary to go behind the veil of the separate legal character of the TVNL. The fact that TVNL did not exist in the year 1991-92 and came into existence only in the year 1996-97 is sufficient to justify its deletion as component of H3. [Para 33] [319-F, G, H; 320-A, B, C] 3.2. The relevant clause of the formula, after amendment, reads, “the said increase to be calculated with respect to the year 1991-92” ( last para of clause 16.10.3). The amendment has been made in the light of the decision of the High Court which rightly held that it is not possible to allow the Board to include purchase of electricity as a component of H3 without suitably amending the formula in accordance with law. [Para 33] [320-F, G, H; 321-A] 3.3. As regard “deemed supply” by the Board to TISCO, the High Court noticed that under a tripartite agreement between the Board, the DVC and the TISCO, with the consent of the State Government, the electricity is being supplied directly by the DVC to the TISCO but such supply is treated as made by the Board to the TISCO. High Court held that the Board cannot treat the sale of electricity by the DVC to the TISCO as a separate class or category for the purpose of computing D3. The computation of D3 to this extent, was rightly held to be not correct. [Para 34] [321-A, B; 322-D] 4.1. The computation of the rates of fuel surcharge by the impugned circular for the years 1996-97 and onwards so far as it relates to the purchase of electricity from TVNL and “deemed supply” by the Board to TISCO thus does not appear to be in accordance with the formula. Fuel surcharge has to be calculated strictly within the framework of the formula. If any extraneous element has crept in, the computation to that extent must be held to be not in accordance with law and accordingly modified. [Para 35] [322-E, F] 4.2. The fact that the Board has had to pay large amounts as delayed payment surcharge (DPS) to the external agencies from which it has been purchasing electricity is more or less an admitted position. The case of the Board, however, is that the default in payment was mainly on account of defaults committed by the consumers themselves. High Court found substance in the stand of the Board. The fact that the consumers at large have not been paying the dues on time and many of them have been making only part payment on the strength of interim orders of Courts are facts which are not disputed. If the consumers do not pay the dues to the Board, they cannot be heard to make any complaint against payment of DPS by the Board to the external agencies. [Para 37] [323-E, F, G, H] 5. As regards the non-accounting of Rs.100 Crores paid by Coal Companies to the Board, the High Court observed that payment of the amount would be relevant consideration while calculating the rate of fuel surcharge for the year 1998-99 and not 1997-98. It is directed that adjustment of Rs.100 crores be worked out accordingly. [Para 45] [326-A, C, D] 6. Nothing material could be highlighted as to how the reasons of the High Court suffer from any infirmity. [Para 44] [325-G] Case Law Reference: 1997 (11) SCC 380 referred to para 2 AIR 1978 SC 1296 relied on para 21 AIR 1984 SC 657 relied on para 22 AIR 1986 Supreme Court 1999 relied on para 22 AIR 1975 SC 460 referred to para 23 AIR 1987 SC 1802 referred to para 24 1990 (3) SCC 223 referred to para 25 AIR 1968 SC 991 relied on para 30 AIR 1984 SC 657 relied on para 30 AIR 1986 SC 1999 referred to para 31 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7220-7239 of 2000. From the Judgment & Order dated 26.06.2000 of the High Court of Judicature at Patna in CWJC No. 5542, 2009, 2087, 1655, 1807, 1971, 1861, 5592, 5624, 5728, 5819, 5861, 5993, 6054, 6079, 6248, 6249, 6275, 6358 and 6490/1999. WITH C.A. Nos. 2560/2009, 2561/2009, 2555-2559/2009. V.R. Reddy, Mir Jha, Sunil Kumar, Harish N. Salve, D.A. Dave, Navin Prakash, Sumant Bhardwaj, Anita Kanungo, Mridula Ray Bharadwaj, L.K. Bajla, Praveen Kumar, Gopal Prasad, R.N. Karanjawala, Nandini Gore, Debmalya Banerjee, Bharat Singh, Manik Karanjawala, Jayant Mohan, Pragya Singh Baghel, Ajit Kumar Sinha, Shree Prakash Sinha, Sunita Sharma, Manjula Gupta, Gopal Prasad, S. Chandra Shekhar, Himanshu Shekhar, Gopal Singh, Vivek Singh for the appearing parties.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 7220-7239 OF 2000 Bihar State Electricity Board …Appellant Versus M/s Pulak Enterprises and Ors. …Respondents WITH Civil Appeal No. 7219 of 2000 Civil Appeal Nos. 2555-2559 of 2009 (Arising out of SLP (C) Nos.456-460/2001) Civil Appeal 2560 of 2009 (Arising out of … Continue reading

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