Kailas vs The State Of Maharashtra = on 18 October, 2011

Bombay High Court
Kailas vs The State Of Maharashtra = on 18 October, 2011
Bench: A. H. Joshi, A. R. Joshi
                                 1              Cri.AppealNo.29/2011

          IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                     BENCH AT AURANGABAD




                                                               
                   CRIMINAL APPEAL NO.29/2011 




                                       
     1)   Kailas s/o Mahadeo Jadhav
          Age: 42 Yrs., occu. Agril.




                                      
     2)   Shahaji s/o Bhagwan Bolbhat
          Age: 33 Yrs., occu. Agril.

     3)   Tatyaram s/o Bhimrao Jadhav




                             
     4)   Harish @Hariram s/o Subbarao
          Birangal 
          (Resp. No.4 is deleted as per 
          court's order  dated 3.3.2011)
                  
     5)   Arun s/o Bhagwan Bolbhat
          Age: 42 Yrs., occu. Agril.

     6)   Rajesh s/o Dadahari Walke
      


          Age:25 Yrs offu.Agril.
   



          All r/o Sonegaon, Tq.Jamkhed,
          District Ahmednagar.                   = APPELLANTS

          VERSUS





     1)   The State of Maharashtra               = RESPONDENT

     Shri Shirish Gupte, Sr.Advocate instructed by
     Smt.Sadhana S. Jadhav with Mr.Satej S.Jadhav, 





     Advocates for Appellants;

     Mr.NR Shaikh, APP for State

                              WITH

              CRIMINAL APPEAL NO.121 OF 2011.

     1)   Tatyaram s/o Bhimrao Jadhav




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                                 2               Cri.AppealNo.29/2011

          Age: 29 Yrs., occ. Agril.
          r/o Sonegaon, Tq. Jamkhed,




                                                               
          District Ahmednagar.




                                       
     2)   Harish @ Hariram Subbarao 
          Birangal, Age: 28 Yrs.
          Occupation - Agril.
          r/o Sonegaon, Tq. Jamkhed,




                                      
          District Ahmednagar.       =  APPELLANTS

          VERSUS

     The State of Maharashtra           =  RESPONDENT




                           
                    ig      ....
     Mr.RN Dhorde with Mr.VR Dhorde, Advocates for
     appellants;
     Mr.NR Shaikh, APP for State.
                  
                           -----
                            WITH
               CRIMINAL APPEAL NO.27 OF 2011
      


     Smt.Suman s/o Baban Misal
   



     Age:36 Yrs., occu. Household
     R/o Sonegaon, Tq. Jamkhed,
     District Ahmednagar.               =  APPELLANT





          VERSUS

     1)   The State of Maharashtra.

     2)   Kailash Mahadev Jadhav,
          age: 38 Yrs., occu. Agril.





     3)   Shahaji Bhagwan Bolbhat,
          Age: 30 Yrs., occu. Agril.

     4)   Tatyaram Bhimrao Jadhav,
          Age: 27 Yrs., occu. Agril.

     5)   Harish @ Hariram Subbarao
          Birangal, Age: 26 Yrs.




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                                  3              Cri.AppealNo.29/2011

          Occupation - Agril.




                                                               
     6)   Arun Bhagwan Bolbhat,
          Age: 39 Yrs., occu. Agril.




                                       
     7)   Rajesh s/o Dadahari Walake,
          Age: 22 Yrs., occu. Agril.




                                      
          All R/o Sonegaon, Tq.Jamkhed,
          District Ahmednagar.       =  RESPONDENTS

          (in jail)




                             
     Mr.VD Sapkal, Advocate for Appellant;
                  
     Mr.NR Shaikh, APP for State;

     Shri Shirish Gupte, Sr.Advocate instructed 
                 
     bySmt.Sadhana S Jadhav with Mr.Satej S.Jadhav,
     Advocates for Respondent Nos.2, 3 and 6 & 7;

     Mr.RN Dhorde and Mr.VR Dhorde, Advocates, for
     Respondent Nos.4 & 5.
      


                       ***
   



                        CORAM : A.H.JOSHI & 
                                 A.R.JOSHI,JJ.

     DATE OF RESERVING JUDGMENT : 16th September, 2011.





     DATE OF PRONOUNCING JUDGMENT: 18th October,2011
                                              
     JUDGMENT (PER:-A.H.JOSHI,J.)

1) The Appellants were tried in Sessions
Case No.199/2008 for the offences punishable
under Sections 120-B, 148, 149, 302, 341, 201 of
IPC read with Section 149 and also under Section
3(i)(x) of Scheduled Castes, Scheduled Tribes
(Prevention of Atrocities) Act, read with Section

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4 Cri.AppealNo.29/2011

149 of IPC and Section 3(ii) r/w section 149 of

IPC by the learned Sessions Judge, Ahmednagar.

2) The trial ended in conviction of the
accused persons for all the offences, except
offence under Section 120-B of IPC and they have

been ordered to undergo life sentence.

3) Heard learned Senior Advocate Shri

Shirish Gupte with Smt.Jadhav and Shri Satej

Jadhav and learned Advoate Mr.R.N.Dhorde, for
the respective appellants/accused; learned APP

for State; and learned Advocate Mr.VD Sapkal for
Appellant in Criminal Appeal No.27/2011.

4) Facts of the case, as have been gathered
from the rival submissions, judgment etc., can be

summarized as follows :-

(i) The incident had occurred at about
6.00 p.m. on 5.7.2008.

(ii) Accused persons had political and

business rivalry against one Baban Misal, the
victim.

(iii) The accused pesons were in a
car. Accused persons chased Baban Misal on
village Kharda to Jamkhed road, while the

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5 Cri.AppealNo.29/2011

victim was driving the motor-cycle and PW

No.1 Shri Sham Sathe was the pillion
rider. The motor-cycle did skid. The riders

fell down. The accused persons got down
from the car with weapons. The accused
persons stopped the victim and dared Baban

and PW No.1 to escape if they can as the
accused had arrived to finish Baban.

(iv) PW No.1 – Sathe started running

away. Some accused had caught at the shirt
of PW No.1, which was torn and a piece

thereof got separated and fell down. PW No.1
then ran and concealed himself behind a tree
and witnessed the incident.

(v) One amongst the accused persons

caught hold of Baban Misal by encircling him
with bicycle chain, and all accused beat

Baban Misal with different weapons. The
victim fell down due to the injuries.

(vi) The accused persons then created a

show of motor-cycle accident with car,
lifted and threw the dead body of Baban Misal
in the gutter near rear wheel of the car,
put a stone on body of the victim and then
left the place of occurrence.

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6 Cri.AppealNo.29/2011

(vii) Relatives of the deceased arrived at

the scene of offence, after half an hour.
Police as well as local politically

influential persons arrived thereafter.

(viii) The offence regarding the incident

was registered at about 1.30 a.m. on
6.7.2008.

(ix) Investigation was carried out.

Weapons of assault used in the commission of
the offence were seized. Statements of

several persons / witnesses were recorded and
the accused were charge sheeted and tried
accordingly.

5) Prosecution has examined 19 witnesses,

as under.

. PW No.1 -Shri Sham Kisan Sathe, is the
eye-witness, who has lodged the FIR
(Exhibit-61).

The Panch witnesses to various
panchanamas drawn during the course of

investigation.

. PW No.2 -Gautam Ananda Sadafule (Exh.

65)

. PW No.3 -Rajesh Sukhdeo Wavhal (Exh.67)

. PW No.4 -Pandit Sitaram Pawar (Exh.74),

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7 Cri.AppealNo.29/2011

. PW No.5 -Somnath Gorakh Jadhav (Exh.

78),

. PW No.6 -Kachru Ankush Rajguru declared

hostile.

. PW No.7 -Sambhaji Namdeo Jadhav (Exh.

83) and

. PW No.8 -Balasaheb Shela Shinde (Exh.

86)

. PW No.9 -Dr.Umesh Narayanrao Rayate is

the medical officer, who had conducted post
mortem examination of dead body of deceased

– Baban Misal (Exh.90).

. PW No.10 -Shri Sudhir Dagdu Kale is

examined to prove that earlier he was the
owner of Maruti car bearing registration
No.MH-12-YA-7929, used by accused, which he
had sold to accused No.2 – Shahaji
Bolbhat(Exh.94);

. PW No.15 -Shri Somnath Eknath Kathawate

is a protographer, who has undertaken the
photography of the place of offence, dead
body, car etc. involved in the offence
(Exh. 109);

. PW Nos.14, 16 and 17 are the witnesses
of certain relevant facts so as to show the
previous rivalry between the parties,
disputes etc (Exhibits – 106, 110 & 111

respectively).

. PW No.13 -Ansar Ismile Baig, the
police constable is examined to prove
that certain articles were sent for chemical
analysis (Exhibit 104);

. PW No.18 -Sandip Rajaram Doifode is
SDPO, who took over the investigation on
5.7.2008 and carried certain investigation

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8 Cri.AppealNo.29/2011

(Exh.117);

(9) PW No. 19 – Sandip Sukhanand Jadhav is
the Investigating Officer (Exh.140).

6) The prosecution case mainly rests on
testimony of PW No.1 – Shri Shyam Sathe. Other

witnesses though important in their own way, are
formal or of lesser significance.

Relevant portion of testimony of PW No.1
needs to be extracted in order to segregate exact

version, which proves certain facts from other.

7) Relevant portion from testimony of PW
No.1 – Shyam Sathe, verbatim, is quoted below :-

EXAMINATION-IN-CHIEF OF PW NO.1 (EXHIBIT-61)

“1). ………………………………

…………………………………..

(a) At that time Harish Subharao
Birangal had encircled Baban by chain and
was holding him;

(b) Kailas Mahadeo Jadhav hit on Baban
Misal by sword below left ear and said
that there was opposition to give away
the water from tank and this Mangatya
has made the Government to give the

water, and not to let him alive;

(c) At that time, Shahaji Bahgwan
Bolbhat said that the liquor shop from
the village is closed by this Mangatya,
the boarding was closed and not to
leave alive this Mangatya and he hit by
Sattor on the left ear;

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9 Cri.AppealNo.29/2011

(d) Tatyaram Bhimrao Jadhav assaulted by
sword on the right side face and head

of Baban;

(e) Thereafter, Arun Bhagwan Bolbhat
assaulted by sickle on left and right
side of the head of Baban. At such time,
Baban Misal tried to rescue himself by

using force.

(f) At such time, Rajesh Dadahari Walke
by the sword in his hand assaulted on
left arm and shoulder of Baban. On

coming to know that Baban died,they
thrown him in the ground. Thereafter all

went inside Maruti car.

(g)

They

lifted
Baban Misal by

holding hands and legs and thrown him

near the

rear wheel of the Maruti car in
the gutter.

(h) Kailas Jadhav lifted one stone and

thrown it on the body of deceased Baban
Misal and said that finally the Mangatya

is eliminated.

(i) After some time the relatives from
our village come. We kept crying with

each other and police came. We went
to Jamkhed police station at about 10.30
to 11 p.m. I lodged the complaint.

(The alphabetical marking and sub-

paragraphing is done for convenience. The
aforesaid extract is taken from page Nos.
248, 249 & 250 of Paper book)

CROSS-EXAMINATION BY ADVOCATE FOR ACCUSED
NOS.1 AND 2: (EXHIBIT-61)

“2)………………………………..

3)…………………………………

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10 Cri.AppealNo.29/2011

4)…………………………………

5)…………………………………

6)…………………………………

7)…………………………………

8)…………………………………

9)…………………………………

10) After about half an hour the

relatives from the village arrived. I
cannot say by which vehicle they came
there. 7 to 8 relatives arrived there.

I had not inquired to these relatives if

any one has mobile phone. They came
by vehicle.

Amongst those persons, Baban’s father
Sitaram, nephew Rahul Kamble and

brothers Anil and Balu.

I cannot give the time when police
arrived thereafter.

Que.:After police arrived, how much time
you took to leave the place of

incident?

Ans.:I do not know the time when police
arrived but I left the place after

three to 4 hours from the time of
incident.

I had seen 2 to 3 police. Thereafter
Dy.SP, Ahmednagar arrived there. When I

was there it had not so happened that
police had brought the Dog Squad. I had
stated while lodging the complaint that
police had arrived there. I cannot
assign reason as to why it is not stated
in the complaint.

I had not stated to the police at the
time of lodging the complaint that after
the incident the accused sat inside the

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11 Cri.AppealNo.29/2011

car and again came out of the car. I had
not stated to the police that accused ran

through the field.

…………………………………..

…………………………………..
…………………………………..
(5) While giving the complaint I stated
to police that I was at home. I cannot

assign as to why police had not written it
in the complaint.

It was not happened that I received the
message and, therefore, I went. After

receiving the call I started immediately.
When I reached theagricultural land Baban

Misal was present.

I reached about 2 p.m. Baban Misal had

taken the meal in my presence. The meal

was completed up
to 2.30 p.m.
At that
time, father and mother of Baban were
present in the home.

We had not taken tea before we started.
At Kharda we had parked the motorcycle

and went aside. Kacharu Rajguru is owner
of the water tank and Harishchandra
Wadile was selling the fish. My shop
of selling fish is adjacent to the shop

of Wadile. Wadile is resident of Kharda
and Kacharu Rajguru is resident of
village Dighol. I am not having
relationswith them. At that time, I had
not met and spoken to them. 2 to 4 days

prior to the date of incident, I had met
Wadile for the last. I had not met both
of them for 7 to 8 days after the
incident.

At Kharda, there was no tea offered
to Baban Misal by both of them. My
native place is Dhanegaon, which is at
a distance of 4 km. away from
Sonegaon. I do not know Subbabai Kale

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12 Cri.AppealNo.29/2011

from Dhanegaon.

(6) It had not happened that I

reached

Jamkhed police station after

12
at mid

night.

I narrated the incident in the manner
it occurred to the police while giving

the complaint. It was the first time, I
narrated the incident at Jamkhed police
station. Thereafter on 12.7.2008 I was
called by the police at Jamkhed police
station.

I reached police station at about 11 a.m.

I received the message at about 10 a.m.
The message was received that I was
called for identification of the

weapons of the offence.

It is true that on that day I was
shown the weapons which are shown to
me in the Court. Sattur is used for

cutting fish.

(7) The spot of incident is at a
distance of 10 to 11 km away from Kharda.

It is true that the spot is
on
the

left side of the road while
going towards

Jamkhed from Kharda.

It is true that no one reside in the
periphery of 1 Km. from the spot of
incident. The place where I was hiding

is the only place having Mahananda
creeper.

That spot is at a distance of 50 to 60

feet away from

the road.

Tatyaram
chased me or 4 to 5 seconds.

I had not seen if Baban Misal was
caught during those 4 to 5 seconds. When
I turned back I seen Baban Misal was

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13 Cri.AppealNo.29/2011

caught. I seen that Baban was caught
at a distance of 30 to 35 feet a way

from road.

Myself and baban ran in the land on
one side of the road in two directions.

The distance between the place from
where

I was watching and the spot is incident
is about 70 to 80 feet. The incident
of Baban Misal, caught holding by chain
and encircled occurred at one place. The
said act was near the well.





                           
     I had not gone
               ig             for   rescue   of   Baban 
     when I seen the        incident. The chain was 

not completely taken around his body. He
caught hold from behind. Hands of Harish

were ahead of Baban. He was caught hold
for 5 to 8 minutes. After 5 to 6
minutes he had fallen. After he had
fallen, the assault had not
continued.

When the incident occurred between 10 to

15 minutes, no vehicle went through the
road.

It is true that it was Saturday, the

weekly market day of Jamkhed. It is true

that the people of Kharda and
Anandwadi

visit weekly market at Jamked. It is
true that at Jamkhed at every Saturday
there is market for bullocks. On

Kharda Jamkhed road, the traffic is rare.

(8) to (12)…………………………

(13) I do not know if on 5.7.2008 the
houses and boardings of accused were
damaged and police case was registered.

     I do not know Suman    Kale              from 
     Sonegaon.  I do not know    if   Suman   Kale 




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                                14              Cri.AppealNo.29/2011

     had filed complaint     under   section   395 
     IPC against Baban Misal.     I   do   not   know 




                                                              

if the incidents of robbery had occurred
on Kharda to Jamkhed road. It is true

that Jamkhed-Kharda road leads to
Tuljapur, Solapur.

It is true that in the case in the year

1996 of which I deposed it was a
case of assault and injury to me
under section 307 IPC. We have cross
terms with the accused since 1996.

(14)……………………………….

(15) At Kharda there is Police outpost.
Village Rajuri is situated at 3 Km.

from

the spot of incident towards
Jamkhed.

The distance between spot of incident
and Jamkhed is about 10 Km. I cannot
say if the cattle market of Jamkhed on
that day closed at about 5 to 6 p.m.

It is true, that
on the road between

Kharda to
Jamkhed there are Rikshaws and

jeep
travelling for the passengers.

Village Nandwadi is situated a ½ Km
away

from spot of incident towards
Kharda.

Que.:If you felt to take help of passing
any vehicle on the road after the
incident?

Ans.:I had not stopped any vehicle but it
was stopped by them on their own.

I had not tried to send message to my
relatives. There were people in the
vehicles which stopped there.

I inquired them if any one has a phone.
They were having mobile phone. I have
not taken the phone and called the

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15 Cri.AppealNo.29/2011

relatives. Those persons informed the
relatives on phone. I had not given the

telephone number of the relative to them.

After the incident occurred and accused
ran away these vehicles stopped after 5
to 10 minutes. I had not asked those
persons to call police on phone. I was

sitting at a distance of 10 feet away
from the body.

The motorcycle had remained at the same
place till completion of the incident

where it was fallen.

Maruti car and motorcycle were visible to
the travellers to and fro.

We both had fallen down from the
motorcycle. When the car was brought
across, Baban was riding the motorcycle
by one hand and talking on mobile by
another hand. The place where we had

fallen there is side gutter to the road.

I was not injured.

Mahananda creeper is to 60 feet away
from the road. It was possible to reach

the road from Mahananda creeper.

I have not attempted to get help when the
incident was going on by coming on the
road.

There is no river near Mahananda creeper.
It is not true to say that there is no
Mahananda creeper. It is not true to say
that I deliberately deposed falsely that
there is Mahananda creeper to make out
falsely that at that place I was hiding.

On the next day, I had gone to the place
of the incident with police. At that

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16 Cri.AppealNo.29/2011

time, I had shown the place of Mahanda
creeper to the police. The spot

panchanama was written in my presence.

(16)……………………………….

(17) It has not so happened that Harish
Birangal assaulted by chain on Baban. I

had stated in the complaint that
Harish Birangal assaulted by chain.

Que.:The statement in complaint that
Harish Birangal assaulted by chain

on Baban is false?

Ans.:I stated such thing under fear. I
cannot say if it is true or false.
It is true to say that I was under

fear condition amongst the police.
It is not true to say since I had
not witnessed the incident, and I
was pressurized to give false
complaint, therefore, I was under

fear.

Que: Since you were under fearful
condition, you cannot say if the
incidents as narrated in the
complaint are correct or wrong?

Ans. Some mistake is possible.

(18) to (22)………………………..

(23) ………………I was not injured
when I fallen from the motorcycle nor
my clothes were torn at that time. On
that day, I had not attended the
hospital it is not true to say that
when I had seen the dead body of Baban
then only I realized that he received
injuries on various parts of body.

(24)……………………………….

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17 Cri.AppealNo.29/2011

(25) …………..I do not know if Baban

was using wrist watch. I cannot say if
Baban was using golden chain. It is

not true to say that at the time of
incident, Baban was wearing golden chain
and having money with him.

He was having mobile hand set only. I do
not know if Baban was always carrying
diaries of accounts and address with
him. It is true that due to the assault
on Baban, blood was on the shoulder. I

do not know that blod was stained on
the cyclechain. The time period was of 5

minutes from lifting of the dead body
from the place until the accused left
from that place.

( sub-paragraphing is done for
convenience. The aforesaid extract is
taken from PAGE NOS.257, 258, 260, 261 to
263, 268 to 269, 272, 275 of the paper

book)

8) Perusal of post mortem examination
reveals as follows :-

“(i) Cause of death reads as follows:-

“As per my opinion, the cause of death is
“shock due to cardio respiratory

failure due to intra- cranial hemorrhage due
to Brain injuries due to Rupture of skull”

(ii) Other injuries on the body are 17 in
numbers, as shown in column No.17,which reads
as follows :

(1) Incised wound oblique on chin 07 cmx
1 cm x Bone deep;

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(2) Incised wound over lower part left

cheek oblique – 5 cm x 1 cm x bone deep;

(3) Incised wound oblique over Lt. cheek
above injury No.(2) – 4 cm x 1 cm x bone
deep.

(4) Lacerated wound over middle part of
left cheek extending from lt. angle of
mouth up to Lower part of Lt. ear
orifice 12 cm x 3 cm x bone deep.

(5) Incised wound oblique over upper
part of lt. cheek above injury No.4 – 6

cm x 01 cm x bone deep.

(6) Incised wound oblique on lt. Side of

neck below lt. Ear – 8 cm x 01 cm x 2
cm.

(7) Incised wound over middle part of
lt. Ear lower ½ of lt ear detached and

missing from body;

(8) Incised wound oblique over Rt. Cheek
extending from right angle of mouth 8 cm
x 1 cm x buccal cavity deep.

(9) Right ear detached and missing from
body due to incised wound.

(10)

Nose, both the eye-boles upper one

half of left cheek and Right cheek

missing due to crush injury.

(11)

Frontal bone, both paritals and both
temporal bones crushed and brain matter
carrying out.

(12) Multiple fractures of occipital bone
on both sides brain matter is coming
out.

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(13) Linear abrasion on left side of
chest above nipple – 8 cm x 5 cms.

(14) Linear Abrasion over left shoulder

on upper side – 4 cms x 2 cms.

(15) Linear Abrasion over left shoulder
on deltoid region – 5 cm x 01 cm.

(16) Linear Abrasion 6 cm on left arm
laterally horizonally.

(17) Linear Abrasion on left arm – 6 cms.

All the incised wounds are caused by

hard and sharp objects, abrasions and
skull vault, bone fractures

is caused by
hard and blunt objects”.

9) Injury Nos.10, 11 and 12 pertain to the
skull injury. In minimum words – over half of

upper portion of head and skull bone was dis-

integrated and brain mass had protruded and was
in smashed condition.

10) In the testimony, PW No.9 has stated as
under:

“3……………………………….

(a) The brain matter totally fragmented.

Brain covering totally torn. Brain
sinuses totally torn. Brain matter is
mixed with the dark coloured clothes
blood. Brain matter cannot be weighed.
Two egg sized stones found in brain
matter. Stones are irregular in size.
………………………………….
………………………………….

The egg size of stone I referred to

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20 Cri.AppealNo.29/2011

chicken eggs. Those two stones were not
sent to Chemical Analyzer nor given to

police…………………………….

(quoted from Examination-in-chief of PW
No.9 from page nos.374. 375 & 376 of
paper book)

He has stated as regards the matter in
stomach as follows, :

“4……………………………….
It is true if the matter in stomach gets

vomited, it may occur on the clothes of
the person. It is true
ig that the
clothes of the deceased stained with
blood and not stained with faecal or
vomit matter material. The stomach

was totally empty.According to me more
than six hours passed after last meal
and death. There are no signs of
vomiting in Esophagus. It is true that
by such injuries to the brain instant

death is possible………………..
………………………………….

5…………………………………
It is true that if a person is caught
hold by cycle chain or hit by it, weal

marks are visible on the body. No weal
marks of the chainwere visible on the
dead body……………………

It is true that crush injuries are
possible in accident.

(quoted from Examination-in-chief of PW
No.9 from page Nos.375, 376 and 377 of
paper book)

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21 Cri.AppealNo.29/2011

11) The evidence on record is voluminous.

Entire case however rests upon the
testimony of PW No.1 – the sole eye-witness.

12) The substance of testimony of PW No.1 as
regards what exactly had happened on the scene

of offence needs to be referred at the cost of
repetition in summary as follows:-

(i) The accused had enmity with Baban
Misal.

(ii) The accused had probably had tracked
the movements of Baban Misal.

(iii) Therefore, accused, equipped with
weapons, followed Baban Misal while he was

on his motorcycle with PW No.1 as pillion
rider, spotted him on the place of incident,

and showered assault on Baban Misal.

(iv) The assault resulted in causing 17
injuries, as noted in column No.17 of post

mortem examination. The accused had
smashed/scrambled his body, done him to
death, arranged the car to show scene of road
accident, thrown dead body of Baban Misal
near rear wheel of the car in a gutter and
fled from the scene of offence.

::: Downloaded on – 09/06/2013 17:51:52 :::
22 Cri.AppealNo.29/2011

(v) PW No.1 got scared with the
situation, kept weeping on the place of

occurrence. The police inspector came on the
place of offence.

(vi) The relatives of deceased Baban
Misal also arrived and PW No.1 and the
relatives kept crying and left the place for

going to the police station only at 11.00
p.m.

(vii) PW No.1 went to police station after
leaving the place of accident and lodged FIR
late into the night.

13) The prosecution story summarized in the

foregoing paras portrayed by the prosecution, is
heavily criticized by the defence on various

counts.

14) Various arguments are advanced to attack
testimony of PW No.1 regarding his

trustworthiness. While attack on the testimony of
PW No.1 is on account of omissions or
contradictions.

Challenge to the worthiness of PW No.1
is on the ground of testimony being rendered
totally untrue and shown to be false on following

::: Downloaded on – 09/06/2013 17:51:52 :::
23 Cri.AppealNo.29/2011

points:-

(a) The injuries appearing in column No.17

and in particular injury Nos.1 to 9 and 14 to
17 may be caused due to any weapons in
isolation or in combination, which the

accused possessed.

These injuries are not fatal, taken
together or in isolation.

(b) The injuries on the face and head
(Injury Nos.10, 11 and 12) are not just

possible but rather inevitable and most
eminent in case of a car and motorcycle
accident, and are rather impossible by one

and all sharp and hard weapons taken together
or in isolation.

(c) The spot panchanama shows that :-

(i) The brain matter is seen mixed with
soil.

(ii) Two stones of the shape and size of
egg, have got into the brain mass still

remaining lower portion of head, while
upper half thereof is crushed and lying
on the ground mixed with soil.

(d) The scene of offence and the position
in which the dead body of Baban Misal was

::: Downloaded on – 09/06/2013 17:51:52 :::
24 Cri.AppealNo.29/2011

found on the place of occurrence, do, falsify

in totality, the prosecution story portrayed
through the testimony of PW No.1.

15) In order to analyse these submissions,
this Court has scrutinized and has re-appreciated

the evidence.

16) Injury Nos.10, 11 and 12 in column No.17

read as follows:

“(10) Nose, both the eye-balls
upper one half of left cheek and

Right cheek missing due to crush
injury.

                (11)      Frontal      bone,           both 
      

                parietals   and   both     temporal   bones 

crushed and brain matter carrying

out.

(12) Multiple fractures of
occipital bone on both sides, brain

matter is coming out.”

(quoted from post mortem examination
report at page Nos.384 and 385 of paper
book)

17) In the spot panchanama, the description
as to scene of offence, with specific reference
to the situation, blood-stains on the car, the
description of brain matter etc., reads as
follows:

::: Downloaded on – 09/06/2013 17:51:52 :::
25 Cri.AppealNo.29/2011

(a) As to Location:-

Þ—–lnj ?kVuk fBdk.kh gtj vlysys fQ;kZnh ;kauh vkiys
ukao “kke fdlu lkBs o;% 38 jk- lksusxkao] rk- tke[ksM] vls

lkaxwu xqUg;kaph FkksMD;kr gdhdr R;kauh lkafxryh o xqUgk ?
kMys fBdk.k nk[kfoys rs ikgrk lnjps fBdk.k gs vkuanokMh
f”kokjkr tke[ksM rs [kMkZ tk.kkjs jksMps nf{k.ksl] jksMps yxr
LVksu ua- 75@6 iklwu if”pesl 30 QqVkoj vlwu yxr

nf{k.ksl xfguhukFk dksaMhck tk;Hkk; ;kaps ekydhps “ksrkyxr
xqUgk ?kMys fBdk.k vlqu lnj fBdk.kh vlysyk tke[ksM rs
[kMkZ tk.kkjk jLrk iqoZ&if”pe vlqu rks iDdk Mkacjh fol
QqVh vkgs- nksUgh cktqus lqekjs ikp & ikp QqVh dPpk jLrk

vkgs o dPP;k jLR;kps nksUgh cktwyk lkbZM xVkj vkgsr-
jksMps nf{k.ksl dPP;k jLR;kyxr vlysys lkbZM xVkj

e/;s ,d tkaHkG;k jaxkph ek:rh dkj ua- ,e,p&12&ok; ,&
7929 gh if”pesdMs rksaM d:u frps MkohdMhy nksUgh pkds
lkbM xVkjke/;s o mtohdMhy nksUgh pkds xVkj iV~Vhps oj

v”kk fLFkrhr vlqu iq<hy cktwl dkpsoj HkxO;k jaxkr ^lkbZ*
vls ejkBhe/;s fyfgysys vkgs—– Þ
(quoted from spot panchanama (Exh.75)

page No.317)

(b) As to blood:-

Þ—–lnj dkjpk Dyhuj lkbZMpk ikBhekxhy njoktk m?kMwu
ikgrk vkrhy lhVoj jDrkps Mkx vkgsr rlsp vkre/;s iq<hy

lhV o ekxhy lhVP;k ekxs ,d Hkkjr xWlph Vkdh flycan
fnlr vkgs- fDyuj lkbZMps njoktkps dkpsoj ckgsjhy cktwus
jDrkps Mkx ykxys vlwu ekxhy fDyuj lkbZMps fMLdoj]
Vk;joj jDrkps Mkx vlqu pkdkyk ykxwup xVkjhr tfeuhoj
jDrkps FkkjksGs vkgsr—– Þ

Þ—–dkjps MkohlkbZMps ekxhy pkdktoG vankts 2 QqV x 2
QqV vkdkjkpk jDrkpk FkkjksGk fnlr vlwu R;k yxrp lqekjs
3 fdyks otukpk vkscM/kkscM vkdkjkpk jDrkus Hkjysyk nxM
iMysyk vkgs –

(quoted from spot panchanama (Exh.75)
from page Nos.318 and 319 of Paper book)

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26 Cri.AppealNo.29/2011

(c) As to description of face and head of

dead body :

“—–e;rkps
Mksds ukdkiklqu laiw.kZ oj QqVysys o m?kMs vkgs
MkO;k tcM;kiklqu MkO;k dkuki;Zar [kkyh uewn izek.ks t[kek
fnlr vkgsr—– Þ

(quoted from Inquest Panchanama, (Exh.68)
drawn on the dead body, seen in the mortuary,
at page Nos.302,of the paper book)

18) At this stage, it would be useful to

refer to the version of PW No.1 relating to the
manner, in which the dead body was thrown. Though

relevant portion is a part of quotation above, it
would be convenient to reiterate it:

” They

lifted
Baban Misal by

holding hands and legs and thrown him

near the

rear wheel of the Maruti

car in the gutter.

(quoted from Examination-in-chief of

PW No.1 (Exh.61) at page No.250)

19) The description of status of the brain,
given by the Doctor – PW No.9, needs advertence.

20) Relevant portion of testimony of PW No.9

– Dr.Umesh Rayate is quoted herein before in
paragraph No.10, which, at the cost of
repetition, is quoted below:

“3. The brain matter totally
fragmented. Brain covering totally

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27 Cri.AppealNo.29/2011

torn. Brain sinuses totally torn.

Brain matter is mixed with the

dark coloured clots blood.

Brain matter cannot be

weighed. Two egg sized stones found
in brain matter. Stones are
irregular in
size…………………………..

The egg size of stone I referred
to are chicken eggs. Those two
stones were not sent to Chemical
Analyzer nor given to police.”

(quoted from Examination-in-chief

of PW no.9 (Exh.90) pag Nos.374, 375
& 376)

21) Now, considering the possibility as to
whether the injury suffered by Baban Misal were
solely on account of the assault and whether the

possibility of accident is to be totally ruled

out, one has to focus on the injury suffered by
Baban Misal to his head.

22) It is already noted that incised wounds
are capable of being caused by sharp and hard
weapon. Therefore, those injuries may support the
prosecution and cannot be debatable unless the

possibility of main injury to the head by assault
is totally ruled out.

23) The injury to the head is described,
wherein the upper half of skull is fractured,
crushed and separated and is not shown to have

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28 Cri.AppealNo.29/2011

been retrieved or recovered and the brain mass is

shown to have spilled out and two egg sized
stones got mixed into the brain mass, which had

not spilled out.

24) The description of scene of offence and

of the dead body and its medical /forensic
evidence, generates the following questions:-

(a) Under what circumstances, when a dead

body is thrown to create a scene of accident,
could stones get admixed into un-separated

brain matter?

(b) How could injury be caused to occipital

and parietal bones and destruction of eye
matter occurr in absence of positive evidence

of use of sharp and hard weapon amongst
available, i.e. Sattur?

25) From the manner in which the skull bone
got fractured, crushed and part of brain matter
had remained in the body and part thereof

separated, rules out the possibility of assault
by sharp weapon. The prosecution should have
ruled out the possibility of crush injury by
sharp weapon. In the event of injury by sharp
weapon the brain matter could not have got
crushed, spilled and mixed into the soil, but

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29 Cri.AppealNo.29/2011

would have got segregated and laid on the ground

and may have still got mixed into soil. However,
doctor could never have used the word “crushed”.

The smash/crush-like situation was
possible probably due to traumatic hammer-like
impact, which appears to us to be possible only

in case of an accident.

26) The next aspect to be dealt with, is,

whether the version of PW No.1, as to his being

in the company of deceased Baban Misal since
afternoon, needs to be tested.

27) PW No.1 has stated that he and the
deceased took food between 2.00 to 2.30 p.m.,

This fact could have been reinforced by
prosecution by some corroboration.

28) PW No.9 has, in specific terms, deposed

that there was no evidence of vomiting by Baban
Misal seen on the clothes of deceased and any
other evidence to suggest that Baban had taken
food till six hours before.

29) This version of PW No.9 brings entire
version of PW No.1, about his being in the
company of the deceased since afternoon having
taken lunch as well as being prsent at the place
of offence comes under grave shadow of doubt.

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30 Cri.AppealNo.29/2011

30) The only evidence, which the prosecution
relies upon as far as the presence of PW No.1 is

concerned, is, the torn piece of T-Shirt. This
piece of cloth in isolation, does not, in any
manner, prove that PW No.1 was accompanying the

deceased in the place of incident.

31) PW No.1 deposes that he fell down with

deceased due to accident before assault. PW No.1

does not have injuries whatsoever. At least bare
abrasion or contusion was imminent. The absence

of injury is evidence of the probability that
nothing as alleged by PW No.1 had occurred.

32) It emerges from the foregoing discussion
that though the prosecution has tried to portray

it as a case of assault, the evidence as to the
nature in which the injury was suffered to the

skull and evidence as to the nature in which the
brain matters was spilled out, creates grave
doubt as to probability of the story couched by
the prosecution.

33) The nature in which the head and skull
bones have got crushed and rendered in dis-
integrated position, creates a strong suspicion
as to whether this type of destruction of a vital
and strong human organ, i.e. Head (skull), and

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31 Cri.AppealNo.29/2011

crushing of skull bone, is possible by use of the

weapon – Sattur.

34) The manner in which the head was crushed
is certainly impossible with weapons such as
sword, knife etc.

The type of crushing injury that has
occurred, is possible only in a situation of
trauma caused by accident or caused manually by

use of hard and blunt object with severe impact.

In the present case, according to the
prosecution, the accused have made a show of

accident. However, alleged weapon of assault is
sharp and does not correspond with the injuries.

35) The human act of assault and crushing
the skull bone appears to be a figment of

imagination rather than being raised to the level
of preponderance of probabilities of existence as

a fact.

36) PW No.1 does not rise to the level of
trust as a truthful witness. Certain facts and

conduct of PW No.1, viz.:-

(a) in running away from the place of
occurrence;

(b) failing to intervene;

(c) having said that he took food with the

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32 Cri.AppealNo.29/2011

deceased at 2.00 p.m. and absence of food
stuff and lack of material vomited by

deceased at the place of incident;

(d) absence of injury, whatsoever, in spite
of falling from a speeding motorcycle;

(e) solitary evidence as to torn T-shirt

being found;

(f) failure of police in taking cognizance
in spite of arriving at the place of
incident.

(g) delay in recording the FIR;

(h) type of damage that motorcycle and the
car suffered which is not possible for human

agency;

(i) the blood seen on the place of scene of
offence, inside the car and outside, create a
doubt as to whether the dead body was really

lifted to some other place, where no blood
was found in the possible proportion, while

there was pool of blood where the dead body
was lying;

all taken together, create grave doubt and
suspicion as to presence and availability of PW
No.1 at the place of incident.

37) All these circumstances lead to the
conclusion that the prosecution has utterly
failed to prove the case beyond suspicion.

38) We therefore pass following order :-

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33 Cri.AppealNo.29/2011

(a) The Criminal Appeal Nos.29/2011 and

121/2011 succeed and are allowed. Fine amount, if
paid by the appellants in these appeals, be

refunded to them.

(b) Criminal Appeal No.27/2011 filed by wife

of deceased is dismissed.

(c) The Judgment and order of conviction and

sentence recorded in Sessions Trial No.199/2008

of Sessions Court, Nanded is set aside.

(d) The appellants/accused be set at
liberty, if they are not required in any other
offence.

                Sd/-                  sd/-  
   



           (A.R.JOSHI,J.)          (A.H.JOSHI,J.)
                                  

     bdv.





     Fldr 16.9.11           





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Parmanand Shamrao Potdukhe vs Special Land Acquisition Officer on 17 October, 2011

Bombay High Court
Parmanand Shamrao Potdukhe vs Special Land Acquisition Officer on 17 October, 2011
Bench: S.A. Bobde, M.N. Gilani
                                                                                1

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                                 
                                   NAGPUR BENCH, NAGPUR.




                                                                         
                               WRIT PETITION  NO. 1010 OF 1992

     1] Parmanand Shamrao Potdukhe,




                                                                        
     2] Deleted,

     3] Abhay Shamrao Potdukhe,




                                                    
     4] Smt. Shantabai Shantaram Potdukhe,
                         
       All residents of Balaji Ward,
                        
       Chandrapur.                                                              .....        PETITIONERS

                 ....Versus....
      


     1] Special Land Acquisition Officer,
   



        Thermal Power Station-II,
        Chandrapur,





     2] Municipal Council, Chandrapur,
        through its Chief Officer,
        Chandrapur,





     3] State of Maharashtra, through Secretary,
        Revenue Department, Mantralaya,
        Bombay-32,                               ......       RESPONDENTS.

     Mr. H.V. Thakur, Advocate for petitioner,
     Mrs.   B.H.   Dangre,   Additional   Government   Pleader   for   respondent 
     nos. 1 & 3,
     Ms. K. Satpute, Advocate for respondent no. 2.




                                                                         ::: Downloaded on - 09/06/2013 17:51:34 :::
                                                                                    2

                                          CORAM :   S.A. BOBDE & M.N. GILANI, JJ.

DATED : OCTOBER 17, 2011.





                                                                            
     ORAL JUDGMENT (PER S.A. BOBDE, J.)




                                                                           
     1]              Heard the learned Counsel for the parties.  




                                                       
     2]              The petitioners are owners of Survey No. 34/3, area 0.41 
                            

ares situated at Mouza Chandrapur, Rayatwari, Patwari Halka No. 8,

Bandobust No. 29, Tq. & District Chandrapur. The land is situated in

the area called Ram Nagar. Acquisition proceedings were initiated

under Section 126 of the Maharashtra Regional & Town Planning Act,

1966 (hereinafter referred to as “the Act”) in respect of the said land

for the purpose of construction of a primary school. The adjoining

land, i.e. Survey No. 34/1 was also made the subject of the

acquisition for the same purpose. Apparently, on 4.9.1997 after the

award was passed, the Municipal Council, Chandrapur passed a

Resolution that it does not wish to proceed with the acquisition of

adjoining Survey No. 34/1 admeasuring 2387 sq. meters and

demanded a sum of Rs. 5.32 Lakhs back from the Land Acquisition

::: Downloaded on – 09/06/2013 17:51:34 :::
3

Officer who had been earlier given that amount for the acquisition of

land. Relying on this Resolution, Shri H.V. Thakur, the learned

Counsel for the petitioners, submitted that the Municipal Council has

abandoned the acquisition in respect of the petitioners’ land also, i.e.

Survey No. 34/3 and the respondents are, therefore, not entitled to

take over possession of the land, which according to the petitioners,

has not yet vested in them.

3] It is not possible to accept this contention. The Resolution

does not state anywhere that the respondents do not wish to acquire

the petitioners’ land which is Survey No. 34/3. The Resolution only

refers to Survey No. 34/1 in respect of which the Municipal Council

decided to abandon acquisition. Shri H.V. Thakur, the learned

Counsel for the petitioners, however, submitted that the Resolution

shows that the respondents have demanded back the entire amount

of Rs.5.32 Lakhs which was meant for acquisition of both the lands,

i.e. adjoining land Survey No. 34/1 and the petitioners’ land Survey

No. 34/3 and, therefore, the respondent Municipal Council must be

::: Downloaded on – 09/06/2013 17:51:34 :::
4

taken to have abandoned the acquisition in respect of the petitioners’

land also.

4] We find that merely because the Resolution demands the

entire sum back from the Land Acquisition Officer, it does not change

the main thrust of the Resolution and that is that the Municipal

Council has resolved to abandon the acquisition of Survey No. 34/1

only which is clearly mentioned therein. Indeed, it was contended on

behalf of the Municipal Council, Chandrapur by Ms. Satpute, the

learned Counsel that the amount of Rs.5.32 Lakhs is mentioned by

mistake. We, therefore, reject this contention on behalf of the

petitioners.

5] It was next contended on behalf of the petitioners that

though the stated purpose of acquiring the petitioners’ land was for

construction of a primary school, in the present Draft Development

Plan published in April, 2011, the reservation of the land is shown for

the purpose of dispensary which is not the same purpose for which it

::: Downloaded on – 09/06/2013 17:51:34 :::
5

was acquired, namely, for a primary school. According to the

petitioners, as a matter of law, the stated public purpose of the

acquisition must continue to exist till the award is passed and the

possession is taken and since the Municipal Council has evinced an

intention to reserve the land in question for another public purpose,

i.e. for dispensary, the acquisition is vitiated.

6] It is not possible to accept this contention since the public

purpose may undergo a change because of change in the need of the

town or city and yet the purpose for which the land is acquired may

remain a public purpose. In any case, such a contention has been

rejected by the Supreme Court in Municipal Corporation of Greater

Bombay .vs. Industrial Development Investment Co. Pvt. Ltd.

and others reported in (1996) 11 SCC 501 wherein in paragraph

no.22 the Supreme Court has observed as follows :-

“22. It is thus well-settled legal position that the land

acquired for a public purpose may be used for another

public purpose on account of change or surplus thereof.

The acquisition validly made does not become invalid by

::: Downloaded on – 09/06/2013 17:51:34 :::
6

change of the user or change of the user in the Scheme

as per the approved plan. It is seen that the land in Block

‘H’ which was intended to be acquired for original public

purpose, namely, the construction of Sewage Purification

Plant, though was shifted to Block ‘A’, the land was

earmarked for residential, commercial-cum-residential

purposes or partly for residential purpose etc. It is the

case of the appellant that the Corporation intends to use

the land acquired for construction of the staff quarters for

its employees. It is true that there was no specific plan

as such placed on the record, but so long as the land is

used by the Corporation for any designated public

purpose, namely, residential-cum-commercial purpose for

its employees, the later public purpose remains to be

valid public purpose in the light of the change of the user

of the land as per the revised approved plan. It is true

that in the original scheme the residential quarters for the

staff working in the Sewage Purification Plant were

intended to be constructed and the same purpose is

sought to be served by the acquisition of the land by

using the land in Block “A”. Nonetheless the acquired

land could be used by the Corporation for residential-

cum-commercial purpose for its employees other than

those working in the Sewage Purification Plant. It would

::: Downloaded on – 09/06/2013 17:51:34 :::
7

not, therefore, be necessary that the original public

purpose should continue to exist till the award was made

and possession taken. Nor is it the duty of the Land

Acquisition Officer to see whether the public purpose

continues to subsist. The award and possession taken

do not become invalid or ultra vires the power of the Land

Acquisition Officer. On taking possession, it became

vested in BMC free from all encumbrances including

tenancy rights alleged to be held by the respondents.

Possession and title validly vesting in the State, becomes

absolute under Section 10 of the Act and thereafter the

proceedings under the Act do not become illegal and the

land cannot be revested in the owner. Only before taking

possession, the Government can withdraw from inquiry

under Sections 45(1) of the Act or the High Court under

Article 226 of the Constitution may quash it on the legal

and valid grounds. If the award under Section 11-A was

not made within two years from the date of the

publication of the declaration under Section 6, as

enjoined under Section 11-A of the Land Acquisition Act,

whether the notification under Section 4(1) would lapse.

This Court in Satendra Prasad Jain v. State of U.P. had

held that after the land stood vested in the State, even if

the authorities failed to comply with the statutory

::: Downloaded on – 09/06/2013 17:51:34 :::
8

requirement, it does not have the effect on the vesting of

land in the State. Thereby the notification under Section

4(1) and the declaration under Section 6 do not stand

lapsed. The same view was reiterated by another Bench

in Awadh Bihari Yadav v. State of Bihar. The High Court,

therefore, was not right in exercise of power under Article

226 of the Constitution in granting declarations as

mentioned in the beginning or in making order of

injunction against the appellants pending writ petitions. It

is an equally settled law that a tenant cannot challenge

the notification under Section 4 and declaration under

Section 6 of the Act when the landlord himself had

accepted the award and received compensation.”

7] In the result, there is no merit in this petition which is

hereby dismissed. Rule stands discharged with no order as to costs.

                     JUDGE.                                                                JUDGE.
     J.




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2 Grand View Estates Pvt Ltd vs The Official Liquidator Of on 14 October, 2011

Bombay High Court
2 Grand View Estates Pvt Ltd vs The Official Liquidator Of on 14 October, 2011
Bench: S.C. Dharmadhikari
                                                                                     1
                                                                          ca243-11.doc

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 ORDINARY ORIGINAL CIVIL JURISDICTION




                                                                          
                  COMPANY APPLICATION NO.243 OF 2011




                                                  
                                 IN
                   COMPANY PETITION NO.1068 OF 1997

                                    In the matter of the Companies Act,




                                                 
                                    1956;

                                                      And

                                    In the matter inter-alia Application under




                                       
                                    section 466 and other relevant
                           ig       provisions of the Companies Act, 1956,
                                    and of inherent powers under Rule 9 of
                                    the Companies (Court) Rules, 1959;
                         
                                                      And

                                    In the matter of the Swadeshi Mills
                                    Company Ltd (In Liquidation), a
        


                                    company incorporated under the Act of
                                    VI of 1882 of the Legislature Council of
     



                                    India, having its registered office at
                                    Swadeshi Mills Compound, Sion,
                                    Mumbai 400 022.





    Ralli Brothers & Coney
    Known as "Cargill Cotton", a
    company incorporated under the





    Laws of United Kingdom having
    its registered office at Knowle Hill,
    Park Fairmile Land, Cowham Surry,
    KT 11, 2PD, England UK.


         And




                                                  ::: Downloaded on - 09/06/2013 17:50:38 :::
                                                                                        2
                                                                            ca243-11.doc


    1     Forbes & Co Ltd (earlier known




                                                                            
          as Forbes Gokak Ltd), a Company,
          incorporated under the Companies




                                                    
          Act, 1956, having its registered
          office at Forbes Building, Charanjit
          Rai Marg, Fort, Mumbai 400 001




                                                   
    2     Grand View Estates Pvt Ltd, a
          company incorporated under the
          Companies Act, 1956, having its
          registered office at 70, Nagindas
          Master Road, Fort, Mumbai 400 023




                                         
          and administrative office at SP Centre,
          41/44, Minoo Desai Marg, Colaba,
                           
          Mumbai 400 005                                     .. Applicants
                          
                      Versus

    The Official Liquidator of
    The Swadeshi Mills Company Ltd
          


    (in liquidation), having its office at Bank
    of India, 5th Floor, M.G.Road, Fort,
       



    Mumbai 400 001.                                          .. Respondent


    Mr.Virag Tulzapurkar, Sr. Advocate with Mr.Cyrus Ardeshir and Mr.Tapan





    Deshpande i/by Amarchand Mangaldas & S.A.Shroff & Co for the
    applicants.

    Mr.J.P.Cama, Sr.Advocate with Mr.K.S.Bapat i/by R.V.Sankpal for





    RMMS.

    Ms.Jane Cox for 735 workers from Mill and 28 staff members from the
    Head Office.

    Dr.T.Pandian, O.L., present.




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                          CORAM                : S.C.DHARMADHIKARI, J.




                                                                          
                          RESERVED ON          : 23rd September 2011.




                                                 
                          PRONOUNCED ON : 14th October 2011.




                                                
    JUDGMENT:

. This Company Application invokes the powers of this Court under

section 466 of the Companies Act, 1956 (“Act” for short). The

Application is by the Applicants who are a Public Limited Company,

namely, Forbes & Company Ltd and a Private Limited Company Grand

View Estates Pvt Ltd, both registered under the Act. They have prayed

that order dated 5th September 2005 passed by this Court of winding up

the Swadeshi Mills Company Ltd (company in liquidation), be

permanently stayed and the applicants be permitted to deposit with the

Official Liquidator attached to this Court an aggregate sum of Rs.86

crores as per the chart at Annexure A to the application. Then, there are

further prayers for making payment of this sum to the secured creditors,

workers and employees of the company. After such payment, the

applicants pray that the assets and properties of the company in

liquidation be handed over to them and the Official Liquidator to stand

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discharged.

2 An affidavit in support of this company application has been filed

and it is stated therein by the applicants that the 1st applicant is a

promoter shareholder, secured and unsecured creditor of the company

in liquidation. It is in the business of engineering goods, shipping and

office automation. The 1st applicant alongwith its wholly owned

subsidiary company owns 17,64,430 equity shares constituting 22.70%

of total equity shareholding of the company in liquidation. Applicant No.2

is a private limited company, duly incorporated under the provisions of

the Companies Act, 1956 having its registered office and administrative

office at the address mentioned in the cause-title of this company

application. It is a major shareholder, a secured and unsecured creditor

of the company in liquidation. Real estate business is one of the objects

of applicant No.2. It owns 22,83,210 equity shares constituting 29.29%

of the total shareholding of the company in liquidation. The said shares

were acquired by the applicant No.2 after the winding up order, for

which it has obtained requisite leave of this Court, under the Companies

Act, 1956 and had those shares transferred in its name. Thus, the

applicants own, in aggregate, 52% of the total equity shares of the

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company. Further, the applicants are the only secured creditors of the

company and thus are vitally interested in the affairs of the company.

Both the applicants are part of Shapoorji Pallonji Group. The said

Shapoorji Pallonji Group is a 140 year old leading corporate house with

significant experience, inter alia, in the Construction, Infrastructure and

Real Estate Development Business.

3 Prior to its liquidation, the company was a public limited company,

incorporated under the Act of VI of 1882 of the Legislature Council of

India. The company is currently under winding up and is represented by

the Official Liquidator, attached to this Court. The share capital of the

company as per the last available financial statement with the applicants

i.e as on 31st March 2001 was as under:

                                  Particulars                            Amount (Rs.)
        AUTHORISED:
        (a) 15,000 unclassified shares of Rs.100 each                        15,00,000
        (b) 98,50,000 ordinary shares of Rs.10 each                        9,85,00,000





            Total
        ISSUED, SUBSCRIBED AND PAID UP:
            77,95,450 ordinary shares of Rs.10 each fully paid             7,79,54,500
            Total                                                          7,79,54,500




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    4    The company, prior to its winding up, was operating as a




                                                                          

composite textile mill, having spinning, weaving and processing sections

for the manufacture of cotton, synthetics, interlining and non woven

fabrics. It was engaged in the textiles business for more than 10

decades. It enjoyed a strong goodwill in the market and had drawn

inspiration from Swadeshi movement of India. The operations of the

company started deteriorating from 1982, because of prolonged textile

strike in Mumbai, increase in cotton prices and recessionary conditions

in the cotton textile industry. Factors like technological changes, high

labour cost, higher cost of funds, sluggishness in textile industry and

competitive disadvantage of mill against unorganized sector etc further

deteriorated the financial condition of the company.

5 In the year 1997, Ralli Brothers and Coney filed a petition in this

Court for winding up of the company. Thereafter, various other winding

up petitions were also filed in this Court. Around February 1998, the

company made a reference to the Board for Industrial and Financial

Reconstruction (BIFR) under the provisions of the Sick Industrial

Companies (Special Provisions) Act, 1985. The BIFR declared the

company a sick company. The BIFR vide its order dated 5th February

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2001, recommended to this Court for winding up of the company.

Appeal preferred against the said order by Rashtriya Mill Mazdoor

Sangh, a registered trade union the Bombay Industrial Relations Act,

1946 and also the Representative and Authorized Union of the

Company before the Appellate Authority for Industrial and Financial

Reconstruction (AAIFR) was also dismissed vide its order dated 14th

May 2001. Applicant No.1, from time to time, had provided financial

assistance aggregating to approximately Rs.43,00,00,000/- (Rupees

Forty Three Crores only) almost during the entire period of the

proceedings before the BIFR and thus enabled the company to continue

its operations. The details of financial assistance during the said

proceedings are as follows:

Year Rupees in Crore
1998 3

1999 19
2000 16
2001 5

However, due to the overall recessionary conditions and structural

problems in the textile industry, the financial condition of the company

did not improve. Pursuant to the recommendation of the BIFR, this

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Court commenced winding up of the company. The Official Liquidator of

this Court was appointed as Provisional Liquidator of the company vide

order dated 13th February 2002 with all powers available to him in terms

of the Companies Act, 1956.

6 After referring to a sale of finished goods under the supervision of

Court Receiver, it is stated that by resolution dated 20th September 2001

issued by the Government of Maharashtra, a High Power Committee

was appointed to look into the matters relating to the workers dues,

bankers and financial institutions. That Committee was empowered by

this Court to dispose off the assets of the company. By order dated 21st

June 2002, the High Power Committee disposed off the entire plant and

machinery of the company and realised amount of Rs.15.53 crores. The

amount received from the sale of finished goods and the entire plant

and machinery was distributed for reimbursement of the cost of security

agencies, other related expenses, part payment of the dues of the

workers and employees dues and part payment of the statutory dues

and that of these secured creditors.

7 The winding up order is then referred to and then in para 7 of the

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affidavit in support, this is what is stated:

“In recent years, the Government of Maharashtra has initiated

various activities for the promotion and facilitation of
development of mill lands in Mumbai. Increasing the

availability of housing has also been a thrust area. The said
initiatives, alongwith the available immovable properties of
the Company together, offer a favourable platform for the

company to undertake real estate development operation.
Though the company was in textiles business prior to winding

up, due to disposal of all the stock in trade and entire plant
and machinery, it is no longer viable to run the business as a

manufacturer of textiles. In the present circumstances, in
Mumbai even otherwise a textile mill is not viable. The

applicants are part of the Shapoorji Pallonji Group, Shapoorji
Pallonji Group has expertise in the real estate business and,

therefore, intends to enable the company to undertake real
estate development applicant No.2 has shown its willingness

to bring in funds to meet all the legitimate liabilities of the
company subject to the order of winding up being
permanently stayed by this Court as sought by the applicants

herein.”

8 It is stated that the applicants being major shareholders and

secured creditors, are vitally interested in bringing the company out of

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winding up. Applicant No.2 by a letter dated 11th November 2010

addressed to the Official Liquidator, High Court, Bombay, sought

information on various contributories of the company including its

secured, unsecured and statutory creditors. In reply to the aforesaid

letter, the Official Liquidator requested applicant No.2 to take inspection

and after taking such information which was made available and on

noticing the contents of the documents inspected, it is stated that the

total liability of the company in liquidation as on 31st March 2011 is

approximately Rs.375.33 crores. Out of that Rs.280.90 crores is the

liability of the applicants, which they have agreed to defer, as more

particularly set out in this affidavit and as far as the other claims and

liabilities, the applicants will duly meet them.

9 A reference is made to the Rashtriya Mill Mazdoor Sangh,

affiliated workers and employees and a Memorandum of Understanding

dated 15th November 2010 signed by the applicants and the Rashtriya

Mill Mazdoor Sangh which is stated to be a representative and

authorised Union of the workers employed in the company in liquidation.

It is stated that the claim was filed by Rashtriya Mill Mazdoor Sangh on

behalf of the workers. Seventy five percent of the claim has been paid

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off by the Official Liquidator out of the sale proceeds of the machinery of

the company and as part settlement of the Memorandum of

Understanding, amounts have been disbursed. In terms of the chart

Annexure F, Rs.74,42,97,519/- are due and payable. There is also claim

of 37 workers/employees who have opted for voluntary retirement

scheme in about 1999 and that is referred to in chart at Annexure G.

The claim of resigned/retired employees prior to 31st September 2001, it

then adverted to and it is stated that, that is enlisted in the chart at

Annexure H to the affidavit in support. It is in these circumstances and

when these employees are in managerial cadre, whereas 75% of the

claim has been paid up by the Official Liquidator from the sale proceeds,

that the package of additional amount has been drawn.

10 A reference is also made to the claim of the workers and

employees affiliated to the Mumbai Mazdoor Sabha, claim of unsecured

creditors, other claims and the total liability aggregating to the applicants

is Rs.86 crores. Although, advertisements were published inviting claims

from various creditors other than those which are referred, none have

been received and it is on this basis that the computation of Rs.86

crores has been arrived at. It is stated that the applicants are part of

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Shapoorji Pallonji Group, who are experts in the business of

construction, infrastructure and real estate. It is stated that the company

is not in a position, now to carry on textile business as the entire

finished goods, plant and machinery have been already sold. There is

always a scope for diversification and in the present circumstances

when in the city of Mumbai, no textile manufacturing business is feasible

or practicable that the applicants prayed that this application be allowed.

11

Mr.Tulzapurkar, learned senior counsel appearing on behalf of the

applicants invites my attention to section 466(1) of the Companies Act,

1956 and submits that, the provision vests the Company Court with a

discretion to permanently stay the winding up. By the application, the

applicants have demonstrated their bonafides. The permanent stay has

to be granted, provided the Court is satisfied that there is concrete

material, which in this case is produced in the form of payment to

creditors and all claims which are outstanding are adequately and

sufficiently protected. In the present case, there is no question of the

application lacking in bonafides or being opposed to commercial

morality. The public interest is also subserved inasmuch as 52% of the

shareholding in the company in liquidation, is that of the applicants. In

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the present case, if the substantial secured creditors like applicants

have deferred their claims and objection to the relief claimed is that the

applicants want to take over the company and start some other

business, then, that can be taken care of by clarifying that if the object

clause in the memorandum does not include the business that is

proposed to be carried out, subject to such modification or amendment

thereof, the same would be carried out, that would suffice and protect

the interest of all concerned. The law does not prohibit other business

being carried on by the company in liquidation after the winding up order

is stayed. Once such is the legal position, the application is bonafide

and no factor militates against the exercise of the power of stay, then,

the discretion in terms of section 466(1) of the Companies Act, 1956 be

exercised in favour of the applicants.

12 Mr.Tulzapurkar submits that the section 466(1) imposes no

condition, nor it states anywhere that the same business should be

carried on. Once the objecting workers are being paid full dues as

adjudicated by the Official Liquidator including interest accumulated in

accordance with law, then, all the more the objections be over ruled.

Mr.Tulzapurkar takes instructions and makes a statement that in the

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present case, the Provisional Liquidator was appointed on 13th February

2002. The applicants are entitled to interest in terms of Rule 179 of the

Companies Court Rules, 1959. If interest is to be computed, the

applicants state that the same may be made payable with effect from

the date of appointment of the Provisional Liquidator. For all these

reasons, it is submitted that this application be allowed. Mr.Tulzapurkar

has placed reliance on the following decisions in support of his above

contentions:

(1)[1981] 51 Company Cases (Bom) 20 – Vasant

Investment Corporation Ltd Vs. Official Liquidator,

Colaba Land and Mill Co Ltd;

(2)[2000] 99 Company Cases 189 (Guj.) – Textile Labour

Association Vs. Official Liquidator of Jubilee Mills Ltd;

(3)2003(4) Bombay Cases Reporter 836 – Maharashtra

State Textile Corporation Ltd Vs. Gopal Balu Saikar,

since deceased by his heirs & another (Writ Petition

No.4998/1987 decided on 7.1.2003);

             (4)[2009]   150     Company      Cases       829       (Guj)       -

                P.Chandrasekharan Vs. O.L of Ahmedabad Mfg &




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                 Calico PTG Co Ltd & others;




                                                                             

(5)(2010) 1 Company Law Journal 74 (Guj.) – Shaan

Zaveri & Ors Vs. Gautam Sarabhai (P) Ltd

13 On the other hand, Ms.Jane Cox submits that she is appearing on

behalf of 748 workmen. Each one of them have lodged their claim with

the Official Liquidator. Each one of them is entitled to the amount in

accordance with law. As far as their dues are concerned, there has to be

a adjudication by the Official Liquidator. She invites my attention to the

report of the Official Liquidator and submits that the Official Liquidator

has referred to the sale of movables and she further submits that as per

the records the Official Liquidator had received/adjudicated the claims

which have been mentioned at para 46 of the report of the Official

Liquidator dated 12th July 2011. She submits that the payment in terms

of the statement made in the Official Liquidator’s report does not

constitute discharge of liability of workers dues in full.

14 Ms.Cox submits that the workers dues cannot be restricted or

computed only in terms of the Memorandum of Understanding. It is not

as if the Rashtriya Mill Mazdoor Sangh is the sole arbiter or decision

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maker of the claims and, therefore, once the aggrieved workers have

clarified that they do not wish to accept the terms of Memorandum of

Understanding signed by the Rashtriya Mill Mazdoor Sangh, then, their

claims have to be adjudicated independent of the Memorandum of

Understanding and in accordance with law. The workers would then get

much more amount which is assured in terms of the Memorandum of

Understanding. Therefore, the Memorandum of Understanding with

Rashtriya Mill Mazdoor Sangh ought not be held to be conclusive and

decisive of all claims and dues of the workers.

15 Ms.Cox submits that once the company is in liquidation, then, the

Bombay Industrial Relations Act, 1946 or the Maharashtra Recognition

of Trade Union and Prevention of Unfair Labour Practices Act, 1971, are

inapplicable. There is no concept of representative Union or recognised

Union any longer governing or operating in the field. The dues of all

workers have to be adjudicated and determined by the Official

Liquidator. That has to be done by him in terms of the powers conferred

by the Companies Act, 1956. The workers are placed in the position of

secured creditors. Their claims cannot be given a go bye or diluted by

any unilateral compromise by one union. The Memorandum of

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Understanding does not give any benefit to these workmen. She

submits that winding up order is of 2005 and the balance that has been

calculated is as of 30th September 2001. In this context, she invites my

attention to page 112, viz., Schedule II to the Memorandum of

Understanding and submits that the dues subsequent to the 30th

September 2001 upto date of winding up and outstanding payable even

thereafter is much more. That cannot be restricted by any Agreement or

Memorandum of Understanding. This amounts to contracting out of a

statue and giving up the statutory benefits permanently. She, therefore,

submits that merely because a Memorandum of Understanding has

been executed by the applicants with the Rashtriya Mill Mazdoor Sangh,

that by itself will not enable the Court to exercise its discretionary

powers under section 466(1) of the Companies Act, 1956. By unilateral

act of parties, this Court cannot be called upon to exercise its discretion

in granting permanent stay of the winding up. She submits that different

considerations and tests will have to be applied and there is no right

vested in the applicant to seek permanent stay of winding up and

particularly on the grounds which are set out in the affidavit in support.

She submits that in this case, the discretion should not be exercised

because the applicants are not reviving the company in liquidation. They

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are interested in exploiting immovable assets and properties of the

company. She submits that after the manufacturing activities have

stopped, the plant and machinery has been sold according to the

applicants, then, all that they are interested in, is the land. They propose

to develop it by constructing multi-storeyed buildings thereon. They are

in real estate business and, therefore, looking at profits by development

of land. They want to exploit the potential of the land in the present real

estate market. There is nothing in the scheme which would enable this

Court to be satisfied that the applicants have a bonafide intent of

reviving the business of the company in liquidation. The real estate

business is not the business of the company in liquidation. In such

circumstances and when the intent of section 466(1) is to confer

discretion on the Court to stay the winding up proceedings permanently

so as to enable the revival of the company in liquidation, then, all the

more the applicants are not entitled to any relief. They cannot in the

garb of seeking such relief, firstly acquire and then sell and dispose of

the assets to a third party. This is a malafide act and the intent is to

overreach the company Court by taking away the assets and properties

of the company in liquidation from the control of this Court. The

applicants desire to achieve indirectly what is prohibited directly in law.

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This is nothing but an attempt to show revival of the company in

liquidation on paper and thereafter to sale it off completely. There is no

scheme for diversification nor of running the industry. In these

circumstances, this application should not be granted.

16 Ms.Cox submits that as the applicants are seeking permanent stay

of winding up, then, once the discretion is exercised in their favour and

the winding up proceedings are stayed, the employment of the workmen

with the company in liquidation stands revived. There is no legal

termination of their services. There is no compliance with section 25N

and 25O of the Industrial Disputes Act, 1947. There is no guarantee that

those who are not consenting for settlement of their dues in terms of the

Memorandum of Understanding, will get full payment including interest.

Those claims may go to the tune of Rs.5,000 crores. She, therefore,

submits that in any event what is offered is less than what the creditors

would get on winding up that the discretion under section 466(1) should

not be exercised. If the applicants desire to take over the company or

present a scheme or arrangement with the creditors, then, they cannot

resort to section 466(1), but, they must comply with sections 391 and

394 of the Companies Act, 1956. Merely to by-pass the same, that this

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application is filed. Once their intent is as aforestated, then, the

application may be dismissed and the Official Liquidator should be

directed to take steps to sell the assets and properties in winding up. It

will be more beneficial for the creditors of the company including these

workers. Ms.Cox, therefore, submits that the application be dismissed.

17 Ms.Cox relies upon following decisions in support of her

contentions:

(1)[2005] 127 Company Cases 752 (Bom) – Shree

Niwas Girni Kamgar Kruti Samiti & Ors Vs. Rangnath
Basudev Somani & Ors;

18 Mr.Cama, learned senior counsel appearing on behalf of the

Rashtriya Mill Mazdoor Sangh states that the Sangh represents 2800

workers. He submits that the plight of the workers is deplorable. They

have not earned any wages from 2001. The company has been wound

up in 2005. There are no benefits. The claim as stated by Ms.Cox is

highly inflated and there are no documents to justify figure of Rs.5,000

crores. This is not an admitted sum. Mr.Cama submits that on the other

hand, by virtue of Memorandum of Understanding and the efforts

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initiated by Rashtriya Mill Mazdoor Sangh, 75% of the wages have been

paid by the Official Liquidator. This was after sale of movables. Now,

there is no plant, no finished goods, no materials. Therefore, there is no

possibility of revival of textile business nor is the company in a position

to carry on the same. Taking into consideration the present day

government policy and the position in the market, textile business has

no future. In such circumstances and when there are no efforts of revival

for past ten years, then, all the more the Memorandum of

Understanding with the applicants is the only relieving factor. That

atleast has brought in some monies for the workers. Rs.30,000/- have

been paid to each worker. The balance disbursement is of Rs.754.42

crores. A sum of Rs.86 crores is deposited in the Court. In these

circumstances, when the liability is to the tune of the sum stipulated in

the Memorandum of Understanding and if no monies are going to come

in the near future, then, the Memorandum of Understanding should be

permitted to be enforced. By refusing to exercise the discretion in favour

of the applicants, the process initiated by Rashtriya Mill Mazdoor Sangh

upon execution of the Memorandum of Understanding, will be halted or

obstructed. That would not be beneficial for the workers who are waiting

for receipt of the monies. For all these reasons, this Court should take a

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pragmatic and practical view of the situation and grant the reliefs as

claimed.

19 Mr.Cama has also relied upon the following decisions to support

his contentions:

(1) [1991] Vol.71 Company Cases 473 – Bombay

Metropolitan Transport Corporation Ltd Vs.
Employeesig of Bombay Metropolitan Transport
Corporation Ltd (CIDCO) and Ors;

(2) (2008) 13 Supreme Court Cases 323 –

Shivanand Gaurishankar Baswanti Vs. Laxmi Vishnu
Textile Mills and others;

(3) Company Application No.14 of 2011 decided on
3rd February 2011 – Ganesh Dattaram Shitap and Ors

Vs. M/s.Swadeshi Mill Co Ltd (In Lqn) and Ors.

20 With the assistance of the learned counsel appearing for the

parties, I have perused the application, the annexures thereto and the

Official Liquidator’s report on record. I have also perused with their

assistance the legal provisions and the decisions brought to my notice.

21 For properly appreciating the rival contentions, a reference to

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section 466 is necessary. That provision reads thus:

“466. Power of Tribunal to stay winding up.-(1) The Tribunal

may at any time after making a winding up order, on the
application either of the Official Liquidator or of any creditor

or contributory, and on proof to the satisfaction of the Tribunal
that all proceedings in relation to the winding up ought to be
stayed, make an order staying the proceedings, either

altogether or for a limited time, on such terms and conditions
as the Tribunal thinks fit.

(2) On any application under this section, the Tribunal may,
before making an order, require the Official Liquidator to

furnish to the Tribunal a report with respect to any facts or
matters which are in his opinion relevant to the application.

(3) A copy of every order made under this section shall
forthwith be forwarded by the company, or otherwise as may

be prescribed, to the Registrar, who shall make a minute of
the order in his books relating to the company.”

22 Perusal thereof would indicate that the Court may at any time after

making a winding up order on the application either of the Official

Liquidator or of any creditor or contributory and on proof to the

satisfaction of the Court, that all proceedings in relation to the winding

up ought to be stayed, make an order staying the proceedings either

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altogether i.e permanently or for a limited time that means temporarily,

on such terms and conditions as the Court thinks fit. The Court may

before making an order, require the Official Liquidator to furnish a report

in respect of the facts or matters which are relevant to the application.

23 On this application being placed before the Court earlier, an order

was made on 23rd June 2011 directing the Official Liquidator to submit

his report within a period of three weeks from the date of the order. On

14th July 2011, this Court perused the Liquidator’s report and made an

order without prejudice to the rights and contentions of the parties in the

following terms:

“(i) The applicant shall deposit an amount of Rs.86 crores

with the Official Liquidator within a period of two weeks from
today.

(ii) Upon such deposit by the applicant, the Official
Liquidator shall forthwith invest the said amount in fixed
deposit/s of nationalised bank/s.

(iii) The Official Liquidator shall adjudicate the claims of
the remaining workers.”

24 In terms of both orders, the Official Liquidator has placed a report

and his final report dated 20th August 2011 records the proceedings that

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were conducted by him pursuant to the order and direction of this Court.

He stated that Official Liquidator has received 1138 individual claim of

workers for adjudication. Letters have been already sent to the workers

for submission of further documentary proof/evidence to prove their

individual claim. Rashtriya Mill Mazdoor Sangh vide its letter dated 15th

June 2011 forwarded to the Official Liquidator, 1909 letters received by

them from the workers accepting the terms of the Memorandum of

Understanding dated 15th November 2010 between Rashtriya Mill

Mazdoor Sangh and the applicants have also confirmed the receipt of

Rs.30,000/- by each of the workers towards advance payment. On the

other hand, Ms.Cox submitted the letters of 10th August 2011 and 17th

August 2011 forwarding therein Letter of Authority from 699 workers and

24 office staff. The Official Liquidator, therefore, sought permission to

adjudicate and pay such claims in accordance with law and to pay

remaining workers as per the terms of Memorandum of Understanding

with Rashtriya Mill Mazdoor Sangh. He seeks orders of the Court

permitting him to disburse the sums and also allow the aggrieved

workers to file their claims with him within such period as may be

prescribed and permit the Official Liquidator to adjudicate and pay such

claims in accordance with law.

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25 Thus, there is a situation where the Rashtriya Mill Mazdoor Sangh

on the strength of the Memorandum of Understanding executed with the

applicants dated 15th November 2010, seeks to press the claims of

those workers who are covered by the Memorandum of Understanding

and whose consent and letter of Authority/acceptance has been

forwarded by it to the Official Liquidator. On the other hand, there are

bout 700 and odd workers who do not wish to abide by Memorandum of

Understanding but are pressing for adjudication of their individual claims

in accordance with law.

26 To my mind, as far as the contentions of Mr.Cama on the issue of

locus of the workers represented by Ms.Cox is concerned, that is a

matter which need not be gone into and decided in this application. The

status of Rashtriya Mill Mazdoor Sangh as a representative/recognised

union, would hold good or not, is a matter which must be left for the

Official Liquidator to decide. It will be open to him to scrutinise such

material as is placed by the parties and then determine as to whether he

must undertake scrutiny of individual claims as prayed by Ms.Cox or

disburse the sums to such workers who wish to abide by the terms of

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the Memorandum of Understanding. It will be open for both to place

before the Official Liquidator the necessary documents so as to either

seek enforcement of the terms and conditions of the Memorandum of

Understanding or adjudication of individual claims in terms of the

Companies Act, 1956 and the Companies Court Rules, 1959. All

contentions in that behalf including with regard to the status and locus

of the Union and of individual workman, are kept open. It is not

necessary to go into the other aspects as to whether the claims have to

be adjudicated with effect from the date of winding up or the date of

appointment of the Provisional Liquidator and even contentions in that

behalf can be kept open. This is not a stage where this Court should

accept the statement of the applicants that they are ready and willing to

settle the claims, not with effect from any prior date but from the date of

appointment of the Provisional Liquidator. This is not a stage where this

Court should determine the relevant date and decide as to whether it is

from the date of the order of winding up or any date prior to the order of

winding up. All pleas of parties in relation thereto are also kept open and

they be dealt with and decided at an appropriate stage.

27 Once this course is adopted, then, it is not necessary to refer to

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decisions which have been cited by Mr.Cama with regard to the locus of

the Union. The judgment in the case of Bombay Metropolitan Transport

Corporation Ltd Vs. Employees of Bombay Metropolitan Transport

Corporation Ltd (CIDCO) and others rendered by Division Bench of this

Court on 5th/6th September 1990 (Appeal No.747 of 1987 in Company

Petition No.138/1986) need not, therefore, be referred in any further

details. Equally, it would not be necessary to refer to the decision of the

Hon’ble Supreme Court in the case of Shivanand Gaurishankar

Baswanti Vs. Laxmi Vishnu Textile Mills and others reported in (2008)

13 Supreme Court Cases 323. As far as the ambit and scope of section

466 of the Companies Act, 1956 is concerned, the principles in that

regard are summarised in a decision of a learned single Judge of the

Calcutta High Court reported in AIR 1996 Calcutta 171 [Nilkanta Kolay

Vs. The Official Liquidator (Company Petition No.120 of 1986, decided

on 30th August 1995)]. There, an application was made by the said

petitioner under section 466 of the Companies Act, 1956 by stating that

winding up petition was filed against the company and a winding up

order came to be passed on 5th July 1988. The Liquidator took

possession of the company and he filed a complaint against the Ex-

Directors including Nilkanth Kolay for taking cognizance and for

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punishment of the offence of not filing the statement of affairs in terms of

section 454 of the Act. The summons was served and Nilkanth

appeared in pursuance thereof. He thereafter stating that there are

three contributories and during the course of hearing of the appeal

against an order on the winding up petition and when directions were

issued for sale of the properties, belatedly made an application on 20th

January 1992 under section 466 of the Companies Act, 1956. That

application was made before the Appellate Court and that is how the

matter was remanded for a decision on that application in terms of

section 466 of the Companies Act, 1956. The learned single Judge of

the Calcutta High Court made reference to earlier decisions of the said

High Court summarising the principles as under:

“23 ….

“Therefore, from the above principles which have been
summarised in different authorities and the decision referred
to hereinbefore it appears that the discretion for stay under

Section 466 can only be exercised by the Court (1) if the
Court is satisfied on the materials before it that the
application is bonafide; (2) the Court would be guided by the
principles and definitely come to the finding that the principles

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are applicable to the facts of a particular case; (3) mere
consent of all the creditors for stay of winding up is not

enough; (4) that offer to pay in full or make satisfactory

provisions for the payment of the creditors is not enough; (5)
Court will consider the interest of commercial morality and not
merely the wishes of the creditors and contributories; (6)

Court will refuse an order if there is evidence of misfeasance
or of irregularity demanding investigation; (7) a firm had
accepted proposal for satisfying all the creditors must be

before the Court with material particulars; (8) the jurisdiction

for say can be used only to allow in proper circumstances a
resumption of the business of the Company; (9) the Court is

to consider whether the proposal for revival of the company is
for benefit of the creditor but also whether the stay will be
conducive or detrimental to commercial morality and to the

interest of the public at large; (10) before making any order

Court must see whether the Ex-Directors have complied with
their statutory duties as to giving information to the Official
Liquidator by furnishing the statement of affairs; (11) and any

other relevant fact which the Court thinks fit to be considered
for granting or not granting the stay having regard to the
peculiar facts of a particular case.”

28 The learned Judge also made reference to an earlier decision

reported in the matter of East India Cotton Mills Ltd reported in AIR

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1949 Calcutta 69 wherein it was held thus:

“In the said case Justice S.R.Das (as his Lordship then
was) held as follows:

“In this application the petitioners also pray for stay of

the winding up proceedings under section 173, Companies
Act. This section comes into play after an order for winding
up has been made. It presupposes a good and valid winding

up order. In an application under this section, there can be no
question of attacking the order. Any creditor or contributory

may make an application under this section. Therefore, each
of the petitioners is fully qualified to maintain this application

insofar as it is one under this section. The company, however,
independently of the Liquidator, does not appear to me to

have any locus standi in such an application. The section
requires proof of the satisfaction of the Court that all

proceedings in relation to the winding up ought to be stayed.

What has happened to justify a stay of proceedings? I have

already dealt with and rejected the allegations of collusion
between Shiva Prosad and Manabendra and the suppression
of service of the petition. Has anything happened since the

order was made? All that has happened is that the petitioning
creditor has been satisfied, not by the company but by
Dulichand a creditor of the company. But is the satisfaction of
the petitioning creditor’s debt by itself sufficient to stay the
winding up when there are other creditors? It is said that

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Dulichand who in his firm of Murarilal Dulichand claims about
Rs,90,000, Jewraj Ram Kissen who claims about also Rs.

90,000 and is represented by Mr.M.N.Banerjee are

supporting this application. On the other hand there is the
creditor Manabendra. Manabendra claims to be a creditor in
the sum of Rs.5,24,651/-. It is probable that he agreed to

accept Rs.25,000/-. I do not propose to go into the question
whether the settlement with him was on any condition or
whether the condition has been broken. Admittedly Rs.25,000

is due to him. The petitioners through their counsel offer to

pay Rs.25,000 to him in full settlement which Manabendra is
not prepared to accept. There is also one Khagendra Lal

Saha who appeared before Edgley, J and filed an affidavit
claiming Rs.6,444-4-6 and objected to any stay but who has
not been served with the present summons. Lastly there are

the Banks and other creditors shown in the balance sheet as

on 31st December 1944 about whose claim nothing has been
said in the petition and the affidavits before me. Further even
if all the creditors consent to stay, is the Court bound to grant

a stay? The principles on which the Court proceeds on an
application of this kind have been summarised in Halsbury’s
Laws of England, 2nd Edition, Vol.2, Art.1209 at p.724 in the

following terms:

“In the exercise of its jurisdiction to stay, the Court so
far as possible, acts upon the principle applicable in

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exercising jurisdiction to rescind a receiving order annulled an
adjudication in bankruptcy against an individual. The Court

refuses, therefore, to act upon the mere assent of the

creditors in the matter, and considers not only whether what
is proposed is for the benefit of the creditors, but also
whether the stay will be conducive or detrimental to

commercial morality and to the interests of the public at large.
In particular the Court will have regard to the following facts
that the Directors have not complied with their statutory

duties as to giving information to the official receiver or

furnishing a statement of affairs that there has been an
undisclosed agreement between the promoter and the vendor

to the company as to the participation by the former in fully
paid up shares forming the consideration for the purchase of
property by the company on formation; that the promoter has

made gifts of fully paid up shares to the Directors, that there

are other matters connected with the promotion, formation or
failure of the company of the conduct of its business or
affairs, which appear to the Court to require investigation. The

same principles are apparently applicable whether the
company has or has not invited the public to subscribe for its
shares except, possibly, in the case of a private company,

where all the shareholders have full knowledge of what has
been done.”

“The summary of the law is based on the observation of

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Buckley, J in the case of In re: Telescriptor Syndicate Ltd.,
(1903) 2 Ch.174 pp.180-181: (72 LJ Ch 480), wherein

reference was made to the Trenchand observation of French,

L.J.in the earlier case of In re: Hester, (1882) 22 QBD 632 at
p.641 : (60 LT 943). I, therefore, proceed to consider the facts
in the light of these principles.”

29 Thus, the broad principles are that the Court must be satisfied on

the materials before it that the application is bonafide, mere consent of

all creditors for stay of winding up is not enough; that offer to pay in full

or make satisfactory provisions for payment of the creditors is not

enough; the Court will consider the interest of commercial morality and

not merely the wishes of the creditors and contributories; the Court will

refuse an order if there is evidence of misfeasance or of irregularity

demanding investigation; the jurisdiction for stay can be used only to

allow in proper circumstances a resumption of the business of the

company and the Court is to consider whether proposal for revival of the

company is for the benefit of the creditor but also whether the stay will

be conducive or detrimental to commercial morality and to the interest of

the public at large; any other relevant fact which the Court thinks fit be

considered for granting or not granting the stay having regard to the

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peculiar facts in a particular case also would govern the exercise of the

power.

30 In my view, what the submissions canvassed by Mr.Tulzapurkar

overlook is, that a company is not a enterprise only of the shareholders.

It is not only they who are interested in setting up and running

companies. The status of a company incorporated and registered under

the Indian Companies Act, 1956 has been best summarised in the

judgment of the Hon’ble Supreme Court in the case of National Textile

Workers Union Vs. P.R.Ramakrishnan reported in AIR 1983 Supreme

Court 75 in the following words:

“4 There is one very important consideration which we

must bear in mind while dealing with this question and it
is necessary to advert to it at the present stage. The

concept of a company has undergone radical
transformation in the last few decades. The traditional view
of a company was that it was a convenient mechanical

device for carrying on trade and industry, a mere legal frame
work providing a convenient institutional container for
holding and using the powers of company management.

The company law was at that time conceived merely as a
statute intended to regulate the structure and mode of

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operation of a special type of economic institution called
company. This was the view which prevailed for a long

time in juristic circles all over the democratic world including

United States of America, United Kingdom and India. That
was the time when the doctrine of laissez faire held sway
and it dominated the political and economic scene. This

doctrine glorified the concept of a free economic society in
which State intervention in social and economic matters
was kept at the lowest possible level. But gradually this

doctrine was eroded by the emergence of new social

values which recognised the role of the State as an active
participant in the social and economic life of the citizen in

order to being about general welfare and common good of
the community. With this change in socio-economic
thinking, the developing role of companies in modern

economy and their increasing impact on individuals and

groups, through the ramifications of their activities, began
to be increasingly recognised. It began to be realised that
the company is a species of social organisation, with a life

and dynamics of its own and exercising a significant
power in contemporary society. The new concept of
corporate responsibility transcending the limited traditional

views about the relationship between management and
shareholders and embracing within its scope much wider
groups affected by the trading activities and other
connected operations of companies, emerged as an

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important feature of contemporary thought on the role of
the corporation in modern society. The adoption of the

socialistic pattern of society as the ultimate goal of the

country’s economic and social policies hastened the
emergence of this new concept of the corporation. The
socio-economic objectives set out in Part IV of the

Constitution have since guided and shaped this new
corporate philosophy. We shall presently refer to some
of the Directive Principles of State Policy set out in Part IV

which clearly show the direction in which the corporate

sector is intended to move and the role which it is intended
to play in the social and economic life of the nation. But, one

thing is certain that the old nineteenth century view which
regarded a company merely as a legal device adopted by
shareholders for carrying on trade or business as

proprietors has been discarded and a company is now

looked upon as a socio- economic institution wielding
economic power and influencing the life of the people.

5 It is now accepted on all hands, even in predominantly
capitalist countries, that a company is not property. The

traditional view that the company is the property of the
shareholders is now an exploded myth. There was a time
when a group controlling the majority of shares in a
company used to say: “This is our concern. We can do
what we like with it.” The ownership of the concern was

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identified with those who brought in capital. That was the
outcome of the property-minded capitalistic society in which

the concept of company originated. But this view can no

longer be regarded as valid in the light of the changing
socio-economic concepts and values. Today social
scientists and thinkers regard a company as a living, vital

and dynamic,social organism with firm and deep rooted
affiliations with the rest of the community in which it
functions. It would be wrong to look upon it as something

belonging to the shareholders.

ig It is true that the
shareholders bring capital, but capital is not enough. It is
only one of the factors which contributes to the production

of national wealth. There is another equally, if not more,
important factor of production and that is labour. Then there
are the financial institutions and depositors, who provide

the additional finance required for production and lastly,

there are the consumers and the rest of the members of
the community who are vitally interested in the product
manufactured in the concern. Then how can it be said that

capital, which is only one of the factors of production, should
be regarded as owner having an exclusive dominion over
the concern, as if the concern belongs to it?A company,

according to the new socio-economic thinking, is a social
institution having duties and responsibilities towards the
community in which it functions. The Supreme Court
pointed out as far back as 1950 in Chiranjeetlal v. Union of

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India (AIR 1951 SC 41 at p.59):

“We should bear in mind that a corporation, which is

engaged in production of commodities vitally essential to
the community, has a social character of its own and it

must not be regarded as the concern primarily or only of
those who invest their money in it.” Pt.Govind Ballabh Pant
also pointed out in one of his speeches:





                                   
      "... ... ... industry is
                       ig        not an   isolated concern of the

shareholders or the managing agents alone. It reacts on
the entire people in the country, on their economic

conditions, on employment or standard of living, on
everything that conduces to the material well being.”

The same view was also expressed at the International
Seminar on Current Problems of Corporate Law,
Management and Practice held in New Delhi where it was

observed that “an enterprise is a citizen. Like a citizen it is
esteemed and judged by its actions in relation to the
community of which it is a member as well as by its

economic performance.” That is why it is regarded as one of
the paramount objectives of a company to bring about
maximisation of social welfare and common good. This
necessarily involves reorientation of thinking in regard to
the duties and obligations of a company not only vis-a-

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vis the shareholders but also vis-a- vis the rest of the
community affected by its operations such as workers,

consumers and the Government representing the society.

There was at one time a serious controversy between two
schools of thought, one represented by Adolf Berle and
the other by Professor Dodd, as regards the nature of duties

and obligations owed by director representing management
of a company. Adolf Berle took the view that directors are
trustees only for shareholders-that is the traditional view

which directly flows from a purely capitalistic approach

which identifies ownership and dominion with capital-while
Prof. Dodd believed that directors are trustees not only for

shareholders but also for the entire community.
Ultimately, however, in his subsequent book, “Twentieth
Century Capitalist Revolution”, Adolf Berle conceded that

Prof.Dodd was right and that modern directors are not

omitted to running business enterprise for maximum profit
motive alone, but are in fact administrators of community
system or of a social institution. That is why we find that in

recent times there is considerable thinking on the subject
of social responsibilities of corporate management and it is
now acknowledged even in highly developed countries like

the United States and England that maximisation of social
welfare should be the legitimate goal of a company and
shareholders should be regarded not as proprietors of the
company, but merely as suppliers of capital entitled to no

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more than reasonable return and the company should
be not only to shareholders but also to workers,consumers

and the other members of the Community and should be

guided by considerations of national economy and progress.
This new concept of a Company was felicitously expressed
by Desai, J sitting as a Judge of the Gujarat High Court in

Panchmahal Steel Ltd. v. Universal Steel Traders(1) in the
following words:

“Time-honoured approach
ig that the company law
must safeguard the interest of investors and shareholders of
the company would be too rigid a framework in which it

can now operate. New problems call for a fresh
approach. And in ascertaining and devising this fresh
approach, the objective for which the company is formed

may provide a guide line for the direction to be taken. As

Prof. De Wool of Belgium puts it, the company has a
three-fold reality economic, human and public-each with
its own internal logic. The reality of the company is much

broader than that of an association of capital; it is a human
working community that performs a collective action for the
common good. In recent years a debate is going on in the

world at large on the functions and foundations of corporate
enterprise. The “preservationists” and the “reformers” are
vigorously propounding their views on the possible reform
of company, the modern trend emphasising the public

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interest in corporate enterprise.”

The learned Judge elaborated this “modern trend” by

quoting from Prof. Gower’s book on “The Principles of
Modern Company Law”: “One section of the community

whose interests as such are not afforded any protection,
either under this head or by virtue of the provisions for
investor or creditor protection, are the workers and

employees of the taken-over company. This is a
particularly unfortunate
ig facet of the principle that the
interest of the company means only the interest of the
members and not of those whose livelihood is in practice

much more closely involved.”

31 Lest it may be said, that after globalisation, liberalisation and

privatisation so also the change in economic scenario since 1990, these

principles may no longer hold good, in a judgment which was once

again delivered by five Judges Bench of the Hon’ble Supreme Court

post this era and reported in AIR 1994 Supreme Court 2696 (Workmen

of Meenakshi Mills Ltd etc Vs. Meenakshi Mills Ltd and another), this is

what is held:

….. “Assuming that the factors mentioned in sub-s (3) S.25N

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as substituted by Amending Act 49 of 1984, are declaratory
in nature and are required to be taken into consideration by

the appropriate Government or the authority while passing

an order under sub-s.(2) of S.25-N, as originally enacted,
it is not possible to hold that the interests of the workmen
is not a relevant factor for exercising the said power. As

pointed out by Prof. Gower in his treatise on Principles of
Modern Company Law:

“In so far as there is any true association in the

modern public company it is between management and

workers rather than between shareholders inter se or
between them and the management. But the fact that the

workers from an integral part of the company is ignored
by the law”. (4th Edn., p.10).

45 The Indian Constitution recognises the role of workers

in the management of the industries inasmuch as Article
43A requires that the State shall take steps by suitable

legislation or in any other way to secure the participation of
workers in the management of undertakings, establishments
or other organisations engaged in any industry. While

holding that the workers have the locus standi to appear and
be heard in a petition for winding up of the company both
before the petition is admitted and also after the admission
until an order is made for winding up of the company,
Bhagwati, J., (as the learned Chief Justice then was), in

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National Textiles v. P.R.Ramakrishnan, [1983] 1 SCR 922,
has thus elaborated this idea:

46 In the same case, Chinnappa Reddy, J., in his
concurring judgment, has stated:

“The movement is now towards socialism. The working
classes, all the world over, are demanding ‘workers’ control

and ‘Industrial Democracy. They want security and the right
to work to be secured.They want the control and direction

of their lives in their own hands and not in the hands of
the industrialists, bankers and brokers. Our Constitution has

accepted the workers’ entitlement to control and it is one of
the Directive Principles of State Policy that the State shall

take steps, by suitable legislation or in any other way, to
secure the participation of workers in the management of

undertakings, establishments or other organisations
engaged in any industry. It is in this context of changing

norms and waxing values that one has to judge the
workers’ demand to be heard”. (p.958) (of (1983) 1 SCR

922) : (at p.83 AIR 1983 SC 75).

47 Similarly, Baharul Islam, J. has observed:

“Our ‘Democratic Republic’ is no longer merely ‘Sovereign’

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but is also ‘Socialist’ and ‘Secular’. A Democratic Republic is
not Socialist if in such a Republic the workers have no

voice at all. Our Constitution has expressly rejected the old

doctrine of the employers’ right to ‘hire and fire’. The
workers are no longer cipher; they have been given pride of
place in our economic system”. (p.980) (of SCR) : (at p.105

of AIR).

32 Once again, the view in the case of P.R.Ramakrishnan (supra) has

been followed and applied. In a later decision reported in AIR 1995

Supreme Court 1811 (L.I.C of India and another Vs. Consumer

Education and Research Centre and others), the Hon’ble Supreme

Court held thus:

“In National Textiles Workers’ Union etc. Vs P.R.
Ramkrishnan, 1983 (1) SCR 922, the constitution bench

per majority held that the socio-economic objections set
down in the directive principles of the Constitution should
guide and shape the new corporate philosophy. The

management of the private company should show
profound concern for the workers. The socio-economic
justice will inform all the institutions of textiles in the
nation to promote fraternity and dignity of the individuals.

In Workmen of Meenakshi Mills Ltd v. Meenakshi Mills

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Ltd., 1992 (3) SCC, 336, the right of the management to
declare lay off under s.25-N of the Industrial Disputes Act,

1984 under Article 19(1)(g) of the Constitution are subject

to the mandates containing Arts.38, 39A, 41 and 43.
Therefore, right under Article 19(1)(g) was held to be
subject to the directive principles. In Consumer Education

& Research Centre v. Union of India, JT 1995 (1) SC 637,
the right of the management in Asbestos industry to carry
on its business is subject to their obligation to protect

the health of the workmen and to preserve pollution free

atmosphere and to provide safety and healthy conditions of
the workmen.

42) The authorities or private persons or industry are

bound by the directives contained in part IV, Part III and
the Preamble of the Constitution. It would thus be clear

that the right to carry on trade is subject to the
directives contained in the Constitution, the Universal

Declaration of Human Rights, European Convention of
Social Economic and Cultural right and the Convention on
Right to development for socio-economic justice. Social

security is a facet of socio-economic justice to the people
and a means to livelihood.”

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33 Thus, it is not as if public interest, commercial morality and

corporate responsibility are alien concepts in the Era of Globalisation,

Liberalisation and Privatisation. The Courts have to apply the above

principles and be vigilant and onguard against any action by which its

control over companies as envisaged by the statute and particularly in

the cases of companies under liquidation is sought to be interfered with.

The company Court cannot permit even by exercise of a discretion, any

shareholder or creditor to carry forward a scheme or proposal by which

the matter gets out of its hands and control altogether. When an order of

winding up is passed by a Court and an Liquidator is appointed to

manage and administer the affairs of a company, the matter comes

under supervision and control of the company Court. Parties who have

a vested interest and particularly in valuable assets and properties of

the company in liquidation will always make an attempt to get out of the

clutches of the company Court so as to have a free hand in dealing with

the assets and properties of the company. The erstwhile directors,

shareholders and other stake-holders including influential secured

creditors would be interested in either putting an early end to the affairs

of the company in liquidation or by taking advantage of the delay seek

to take charge or intermeddle in the affairs and matters relating to

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winding up in an indirect or oblique manner. The very purpose of the Act

is defeated if such attempts are allowed to succeed. Section 447 of the

Companies Act, 1956 states that an order for winding up of a company

shall operate in favour of all the creditors and all the contributories of the

company as if it had been made on the joint petition of a creditor and of

a contributory.

34 The provisions of the Companies Act, 1956 commencing with the

presentation of a petition for winding up, go to show that the company

Court has very wide powers. It can dismiss such petition with or without

costs. It can adjourn its hearing conditionally or unconditionally. It can

make any interim order as it thinks fit or make an order for winding up of

the company with or without costs or any other order that it thinks fit.

However, once a winding up order has been passed, the consequences

are that the order has to be communicated to the Official Liquidator. The

suits and other proceedings against the company get stayed on winding

up order and cannot be initiated or proceeded with, save and except,

with the sanction of the Court winding up the company. Section 447 has

already been noted above. Section 448 to section 450 enumerate the

appointment and powers of the Official Liquidator. The Official Liquidator

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then has to ensure that a statement of affairs of the company is

submitted to him. He can call for such particulars as are necessary and

if default is made in complying with the requirement of furnishing and

submitting the statement of affairs then that act is viewed very seriously,

and, it is an offence in terms of the relevant provisions.

35 Section 455 is entitled “Report by Official Liquidator”. The

Liquidator’s report has to be comprehensive. It may be preliminary or

final. He can seek sanction of the company Court for taking such steps

as are necessary to preserve, protect and safe-guard the properties and

assets of the company. The custody of the company’s property in terms

of section 456 is with the Official Liquidator. He must take into his

custody or control all the property, effects and actionable claims to

which the company is or appears to be entitled. He has very wide

powers including seeking assistance of the police for taking possession

of the company’s properties and effects. Sub-section 2 of section 456

states that all the property and effects of the company shall be deemed

to be in the custody of the Court as from the date of the order winding

up of the company. This provision is salutary in nature. The legislature

was conscious of the fact that it may be assumed that on winding up

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order being passed, the properties and assets are in custody or under

control of the Official Liquidator, but that is not what is really intended by

the statute. It is the company Court which has the custody as and from

the date of the order of winding up. For the Court to exercise its powers

under the Act and to enable it to take custody, that the Official Liquidator

is appointed. The powers of the Official Liquidator have to be exercised

by him with the sanction of the Court and that is evident by section 457.

In section 457, in sub section (1) in addition to clauses (a) to (c), clause

(ca) has been added by Act 11 of 2003 and that confers power on the

Official Liquidator to sell whole of the undertaking of the company as a

going concern. This is evident by the fact that once the Liquidator has

taken custody of the property and puts it under the control of the Court,

he can with the sanction of the Court and to ensure effective so also

proper winding up of its affairs, sell whole of the undertaking of the

company as a going concern so as to enable him to meet the claims

that may be received from all the creditors. There is a discretion in the

Liquidator and that is evident by section 458.

36 Then comes section 459 under which the Court can sanction legal

assistance to Liquidator. The exercise and control of Liquidator’s powers

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is subject to the provisions of the Act, but in the administration of the

assets of the company and distribution thereof among its creditors, the

Liquidator shall have regard to any directions which may be given by the

resolution of the creditors or contributories at any general meeting or by

the committee of inspection. The Liquidator may apply to the Court in

the manner prescribed, if any, for directions in relation to any particular

matter arising in the winding up. Therefore, by sub-section (6) of section

460, it is evident that anything that the Liquidator does even by using his

own discretion, is ultimately subject to the confirmation by the Court.

The Liquidator has to keep books and he has to also have audit

conducted of his accounts is clear from the further provisions. The

Central Government has control over Liquidators but as is evident, in

individual matters it is ultimately the Court, which has all the powers. It

is in this backdrop that section 466 must be construed. It is not proper to

see this provision in isolation for that would mean that the affairs of the

company in winding up is the absolute prerogative of the Liquidator and

the Court has only to act on the reports of the Liquidator. The Court has

the paramount duty and obligation and it has to uphold the object of the

Companies Act, 1956.

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37 As held by the Hon’ble Supreme Court, the Company Court

cannot take a narrow and pedantic view of the matter and proceed on

the basis that the company is the property of the shareholders and it is

their wish which has to be given effect to. Similarly, it is only the interest

of the shareholders and the creditors which has to be borne in mind.

The larger role that has now been highlighted makes it abundantly clear

that a company is a social institution. It is not the interest of those who

invest their money in a company which has primacy or they alone have

to be placed in the forefront. Once the society as a whole has a stake in

a company, then, the company Court cannot overlook that aspect, for it

would be shirking its duty and ignoring public interest. The company

Court has to keep public interest and public good in the forefront as

well. Therefore, while exercising its powers under section 466, the

company Court cannot do anything which shakes the confidence of the

public at large in the functioning or working of the company Court or that

of the Liquidator. Once commercial morality and corporate

responsibility are inbuilt in the administration and management of

companies, then, these principles would have to be applied even by the

company Court. We, in India, follow the principle and phiolosphy

emphasised by the Father of Nation, namely, “Commerce Without

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Morality is a Social Sin”. The company Court cannot permit any

arrangement or scheme or grant any relief which would defeat public

interest or would contravene public policy. Ultimately, whether it is a

compromise between conflicting stake holders or persons having same

interests, when it comes to winding up the affairs of a company, the

Court must necessarily act for public good and in public interest. If the

discretion vested in the company Court is not exercised on sound

judicial and social principles, then, people at large would lose faith in the

administration of justice itself. They would carry an impression that the

company Court places its seal of approval on any arrangements or

schemes brought before it by interested parties, mechanically.

38 Even as late in 2007 the Hon’ble Supreme Court in the case of

M/s.Meghal Homes Pvt Ltd v. Shree Niwas Girni K.K.Samiti & Ors

reported in AIR 2007 Supreme Court 3079, while reversing a decision of

the Division Bench of this Court modifying the scheme of arrangement

in exercise of the powers under section 392 of the Companies Act, 1956

had the following to say:

“22. When a Company is ordered to be wound up, the

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assets of it, are put in possession of the Official Liquidator.
The assets become custodia legis. The follow up, in the

absence of a revival of the Company, is the realization of

the assets of the company by the Official Liquidator and
distribution of the proceeds to the creditors, workers, and
contributories of the company ultimately resulting in the

death of the company by an order under Section 481 of the
Act, being passed. But, nothing stands in the way of the
Company Court, before the assets are disposed of, to

accept a Scheme or proposal for revival of the Company. In

that context, the Court has necessarily to see whether the
Scheme contemplates revival of the business of the

Company, makes provisions for paying off creditors or for
satisfying their claims as agreed to by them in terms of
Section 529 and Section 529A of the Act. Of course, the

Court has to see to the bonafides of the Scheme and to

ensure that what is put forward is not a ruse to dispose of
the assets of the Company in liquidation.

23. In fact, it was on this basis that the Division
Bench of the High Court proceeded when it passed the
order dated 4.4.1995. Apart from the fact that the correct

principle was adopted, the directions therein are binding on
the Company Court and the Division Bench of the High
Court of coequal jurisdiction when the proposal for
amendment of the earlier scheme came up. It has to be

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noted that it was not a fresh scheme that was being mooted,
but it was a proposal for an amendment of the scheme

already considered by the Division Bench when it passed

the order dated 4.4.1995. It was the plain duty of the
Division Bench on the latter occasion to keep in focus the
suggestions earlier made.

24. It was argued before us on behalf of the appellant that

Sections 391 to 394A were procedural provisions and when
once a company was under liquidation, the Chapter dealing

with winding up applied and the only provision or
substantive provision conferring power of stopping the

winding up was conferred on the court by Section 466 of
the Act, and unless the court is satisfied that the Company is

being taken out of liquidation by way of revival and that it will
sub-serve public interest and will conform to commercial

morality, the court cannot accept a scheme proposed under
Section 391 of the Act. The argument on the side of the

respondents is that Section 391 is a self-contained code and
read with Section 392 of the Act, which was peculiar to our
Act, it was clear that a Company Court could approve,

independently of Section 466 of the Act, a scheme and
could take the company out of liquidation and even pass an
order of stay in terms of Section 391 read with Section 392
of the Act. Section 466 of the Act was not attracted when a
scheme approved by the shareholders, creditors, members

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of the Company and so on was put forward before the
Company Court.

25. It is a well settled rule of interpretation that provisions
in an enactment must be read as a whole before

ascertaining the scope of any particular provision. This
Court has held that it is a rule now firmly established that the
intention of the legislature must be found by reading the

statute as a whole. In Principles of Statutory Interpretation
by Justice G.P. Singh, it is stated:

“The rule is referred to as an “elementary rule” by
VISCOUNT SIMONDS; a “compelling rule” by LORD

SOMERVELL OF HARROW; and a “settled rule” by B.K.
MUKHERJEE, J.”

(See pages 31 and 32 of the Tenth Edition)

When we accept this principle, what we have to do is to

read Sections 391 to 394A not in isolation as canvassed for

by learned counsel for the respondents, but with reference

to the other relevant provisions of the Act. We see no

difficulty in reconciling the need to satisfy the requirements

of both Sections 391 to 394A and Section 466 of the

Companies Act while dealing with a Company which has

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been ordered to be wound up. In other words, we find no

incongruity in looking into aspects of public interest,

commercial morality and the bona fide intention to revive a

company while considering whether a compromise or

arrangement put forward in terms of Section 391 of the

Companies Act should be accepted or not. We see no

conflict in applying both the provisions and in harmoniously

construing them and in finding that while the court will not sit

in appeal over the commercial wisdom of the shareholders

of a company, it will certainly consider whether there is a

genuine attempt to revive the company that has gone into

liquidation and whether such revival is in public interest and

conforms to commercial morality. We cannot understand

the decision in Miheer H. Mafatlal Vs. Mafatlal Industries

Ltd. (supra) as standing in the way of understanding the

scope of the provisions of the Act in the above manner. We

are therefore satisfied that the Company Court was bound

to consider whether the liquidation was liable to be stayed

for a period or permanently while adverting to the question

whether the scheme is one for revival of the company or

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that part of the business of the company which it is

permissible to revive under the relevant laws or whether it is

a ruse to dispose of the assets of the company by a private

arrangement. If it comes to the latter conclusion, then it is

the duty of the court in which the properties are vested on

liquidation, to dispose of the properties, realize the assets

and distribute the same in accordance with law.”

39

What is further interesting and relevant to note is, that the

Supreme Court frowned upon an arrangement which was of a like

nature. There, Supreme Court was considering the correctness of the

view taken by the Division Bench under which it permitted modification

or replacement of an earlier scheme. That earlier scheme envisaged

revival of the company in liquidation. However, the modifications that

were suggested in the compromise or arrangement envisaged not

revival, but taking over of the lands of the company which was carrying

on identical, viz., textile business and placing them in the hands of

developers and builders, namely, M/s.Lodha Builders Pvt Ltd. The said

M/s.Lodha Builders Pvt Ltd were not at all interested in revival of the

company or its business by taking over the undertaking of the company

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as a going or running union. It was interested in starting an industry of

its own in that property. This was not approved by the Supreme Court as

a modification in the scheme necessary for proper working of the

compromise or arrangement earlier arrived at. This was a substitution of

the scheme itself. Therefore, unless the scheme with the modifications

was placed before the general body by reconvening the meeting in

terms of section 391 of the Act, the modification could not have been

sanctioned, was the view taken by the Supreme Court. Therefore,

howsoever laudable the object may be, the company Court cannot

approve an arrangement by which the assets of the company in

liquidation are disposed off or taken over by some private arrangement

and to put it more clearly by circumventing the company Court itself.

The Court even in matters of sections 391 to 394 and 466 of the

Companies Act, 1956 has to take into consideration the aspect of public

interest, commercial morality and the intention to revive the company.

40 I will have to test the present application and the request of the

applicants therein on the touchstone of the above principles. All

discretion has to be exercised judiciously and not arbitrarily. The Court

cannot pick and choose shareholders and creditors. The Court cannot in

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the garb of conflicting claims of workers or because of any rift inter-se

between them, allow the claims of the said workers and other creditors

to be compromised or defeated altogether. Ultimately, the applicants

may claim to be shareholders and substantial secured creditors, but if

the purpose in presenting this application is to enable them to take over

the company’s properties and assets which are indeed valuable at a

price or value which they unilaterally determine, then, that cannot be

permitted. A careful scrutiny of this application would reveal that what

the applicants are projecting is, that they have the necessary

wherewithal and strength. The applicant No.1 claims to be a promoter,

secured creditor and unsecured creditor of the company in liquidation. It

has projected that it alongwith its wholly owned subsidiary owns

17,64,430 shares of the company in liquidation constituting 22.70% of

the total equity shares of the company in liquidation, whereas the

applicant No.2 owns 22,83,210 equity shares of the company

constituting 29.29% of the total shareholding of the company in

liquidation. On the own showing of the applicants, applicant No.2 has

acquired this shareholding after the winding up order. Therefore, they

may be owning in aggregate about 52% of the total equity shares of the

company, they may claim to be vitally interested in its affairs as well, but

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they are part of a distinct group of companies, viz., Shapoorji Pallonji

Group which is not in textile business admittedly. That group is in the

business of Construction, Infrastructure and Real Estate Development

Business.

41 The applicants have stated in the affidavit in support that the

company in liquidation is a Public Limited Company incorporated and

registered under the Companies Act VI of 1882 of the Legislative

Council of India. Its shareholding and activities are set out and

admittedly the company was operating composite textile mills having

spinning, weaving and processing sections for the manufacture of

cotton, synthetics and non-woven fabrics. Although the company ran

into rough weather, what has been placed for this Court’s consideration

and seeking reliefs in its equitable and discretionary jurisdiction is, that

Government of Maharashtra has initiated various measures for

promotion and facilitation of development of mill lands in Mumbai. It is

projected that in accordance therewith, the availability of houses has

also been a thrust area. The initiative alongwith available immovable

properties of the company together, offer a favourable platform for the

company to undertake real estate development operation. Now, if para

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7 of the affidavit in support, which is reproduced herein above is

carefully perused, it is apparent that the applicants do not desire to

revive the business of the company in liquidation by developing part of

its properties or portions of its lands, but desire to take over the said

lands for exploitation in the real estate market. It is clearly their motive

that these lands should be taken over without offering the market price,

but via this application so that once the permanent stay of winding up is

obtained or granted, that would mean that the company’s prime assets

and properties can no longer be controlled by the Court. They would

develop these lands by constructing buildings and sell off the units

therein and earn profits.

42 However, the desire to cash on the lands with a view to fully

exploit their potential is not matched with the same approach as far as

the creditors of the company. By not reviving the company after taking it

out of winding up shows that the applicants are primarily concerned with

the benefits attached to these lands. By exploiting and utilising them to

their advantage, the applicants are not agreeable to the Liquidator and

the Court controlling their actions in interest of all creditors and general

public. The business opportunities on account of spiraling prices in the

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Real Estate Market is the only attraction for the applicants. The

proceeds and gains from such opportunities ought to have been shared

by them with all. However, that is not their intent, is clear from their

stand. If these lands are sold by the Official Liquidator under the

supervision of this Court and at open, fair and transparent public

auction, the applicants may not stand any chance and hence they

desire to obtain the lands at a throwaway price by a back-door method.

That is the sole intent in making this application. By invoking sympathy

of some creditors and stating that the monies to meet the claims of the

workers would be brought in immediately, what the applicants are

seeking to do is to take away entire proceedings in winding up from the

supervision and control of this Court. They may make give or seek some

concessions here and there. However, their object is not to run the

business of the company in liquidation. They have not brought anything

on record by which it could be conclusively held that textile

manufacturing business is altogether prohibited or not permitted in the

Island city. In fact, if the affidavit in support is perused carefully, it is

evident that the Shapoorji Pallonji Group is interested in the lands of this

textile company and if they have to obtain the same at public auction or

by bidding at a sale of this land and assets of the company in liquidation

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under the aegis of the Liquidator and pursuant to the sanction of this

Court, they may not be able to acquire these lands. Thus, to avoid

participation at a public auction and at a sale which will be conducted in

a transparent and fair manner, that the application has been filed. The

applicants have not come out with a positive case that business of the

company in liquidation cannot be revived at all. They do not say that the

textile business cannot be carried on or is totally prohibited. They claim

that it is not practicable and feasible to carry on such business.

However, it is their perception. The Liquidator has not come forward with

any conclusive or decisive report on this aspect. In such circumstances,

if all the above tests and principles are applied, it is evident that this

company application is filed for seeking a stay of the winding up not for

revival of the company’s business or to smoothen the process of

liquidation and winding up, but to take over the company itself in an

indirect and oblique manner. There is substance in the objection of

Ms.Cox that this is a take over of the company without recourse to the

provisions in law enabling such take over and particularly sections 391,

392 to 394 of the Act. To by pass and avoid compliance with such

provisions, that this application is filed. Once such is the motive, then,

the enormity of the funds, the applicants are willing to pump in, the

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schemes or arrangements of settlement of the dues of creditors, cannot

persuade this Court to grant any discretionary relief to them and prevent

the Liquidator from proceeding to wind up the company in accordance

with law. If ultimately it is impossible to revive the company, then, it is

better that the Liquidator carries on its affairs till the dissolution of the

company. It is only through the mechanism and participation of the

Liquidator, that the Court can ensure settlement of claims of the secured

and unsecured creditors in accordance with law.

43 At this stage, when claims of certain workmen have been given a

preference over others or non-consenting employees, then, all the more

it would not be in public interest and commercial morality to grant any

reliefs.

44 As a result of the above discussion, this company application fails

and it is dismissed.

45 In the view that I have taken, it is not necessary to refer to all the

decisions that have been brought to my notice. Suffice it to note that the

decisions that have been brought to my notice by Mr.Tulzapurkar deal

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with a situation in which the Court has permitted carrying on a distinct

business under a scheme of arrangement or compromise by adherence

to the provisions of law. That was a case where on a over all view, the

scheme proposed and the arrangement placed before this Court in

terms of sections 391 to 394 of the Companies Act, 1956 was in the

interest of the shareholders, creditors and general public. It is in that

backdrop, that the Court took the view relied upon by the applicants. It is

in such circumstances that the amendment to the object clause or to the

memorandum, was permitted. The judgment in the case of Maharashtra

State Textile Corporation Ltd Vs. Gopal Balu Saikar (supra), is also

distinguishable. There, the Government of Maharashtra had acquired

the assets of the mill and the question was whether the employment of

respondent No.1 continues on such acquisition. It was argued that it

was re-employment after the take over whereas the dispute was

whether it is a fresh employment in law. It is in that context, that the

observations have to be seen.

46 The decision of the learned single Judge of the Gujarat High Court

in Shaan Zaveri & Ors Vs. Gautam Sarabhai (P) Ltd (supra), once again

must be seen in the backdrop of a relief of permanent stay of voluntary

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liquidation of the company and seeking discharge of the Liquidator.

There, the scheme was found to be not contravening any of the

provisions of law that the discretion was exercised on the sound judicial

principles. That must be seen in the facts of that case and that this

judgment does not lay down any general rule.

47 Thus, finding that the none of the grounds enabling exercise of

discretion under section 466 have been made out, this company

application is dismissed but without any order as to costs. The Official

Liquidator should now proceed expeditiously and adjudicate the claims

received and take all such steps as are necessary and permissible in

law for winding up the company in liquidation. With such directions, his

report also is disposed off.

48 At this stage, it is requested that an amount of Rs.86 Crores which

is deposited in this Court by the applicants be directed to be returned

with accrued interest. Mr.Tulzapurkar submits that this withdrawal will

be without prejudice to the rights and contentions of the applicants to

challenge this order in higher court.

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49 In the light of this request, the applicants are allowed to withdraw

the amount of Rs.86 Crores with accrued interest, without prejudice to

their rights and contentions.

(S.C.DHARMADHIKARI, J)

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Dr. Surendra Ramlal Tiwari vs State Of Maharashtra on 12 October, 2011

Bombay High Court
Dr. Surendra Ramlal Tiwari vs State Of Maharashtra on 12 October, 2011
Bench: B. P. Dharmadhikari, A.P. Bhangale
                                    1
           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH




                                                                   
       PUBLIC INTEREST LITIGATION NO.  74  OF  2010




                                           
     1. Dr. Surendra Ramlal Tiwari,
        aged about 44 years, 




                                          
        occupation - Lecturer in 
        Physical Education in Jyoti
        College of Physical Education,
        Hingna Road, Nagpur, r/o




                                
        Trimurty Nagar, Nagpur.
                   
     2. Trimurty Nagar (N.I.T.) Ground
        Bachav Kruti Samiti through 
        its Secretary, Purushottam 
                  
        Parmore, aged about 49 years,
        occupation - Private, r/o L.I.G.
        Colony, Trimurty Nagar, Nagpur.        ...   PETITIONERS
      


                     Versus
   



     1. State of Maharashtra,
        through its Secretary, 
        Urban Land Development





        Department, Mantralaya,
        Mumbai 400 32.

     2. Nagpur Improvement Trust,
        through its Chairman,





        Civil Lines, Nagpur.

     3. Nagpur Municipal Corporation,
        through its Commissioner,
        Civil Lines, Nagpur.




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                                             2
     4. Bhartiya Vidya Bhavan,
        Munshi Sadan, Kulpati K.M. Munshi




                                                                             
        Marg, Mumbay 400 007, through
        constituted Attorney Shri T.G.L.




                                                    
        Iyer, Director, Bhartiya Vidhya
        Bhavan, Nagpur Kendra, Lala
        Lajpat Rai Marg, Near Museum,
        Civil Lines, Nagpur.               ...   RESPONDENTS




                                                   
     Shri A.S. Jaiswal, Advocate for the petitioners.




                                       
     Shri D.M. Kale, Advocate for respondent No. 1.
     Shri S.K. Mishra, Advocate for respondent No. 2.
                        
     Shri C.S. Kaptan, Advocate for respondent No. 3.
     Shri   M.G.   Bhangde,   Sr.   Advocate   with   Shri   V.V.   Bhangde, 
     Advocate for respondent No. 4.
                       
                       .....

                           
                       CORAM :   B.P. DHARMADHIKARI &
                                 A. P. BHANGALE, JJ.

DATE OF RESERVING JUDGMENT : SEPTEMBER 16, 2011.
DATE OF PRONOUNCING JUDGMENT : OCTOBER 12, 2011

JUDGMENT : (Per B.P. DHARMADHIKARI, J.)

By this petition, the challenge is to action of

Respondent No. 2 in allotting land reserved for Primary School,

Secondary School and Playground to Respondent No. 4 –

Educational Institution/ Trust. The petition has been accepted as

Public Interest Litigation as per orders of the learned Senior

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Judge on 02.12.2010 and on 06.12.2010 notices were issued to

the other side.

2. The facts briefly stated are : The reservation is on

Khasra No. 12 of Mouza – Bhamti included in Bhamti Parsodi

Street Scheme of Nagpur Improvement Trust (respondent 2

herein) and as per Development Plan sanctioned in the year

2001, it has reservation No. SW 164 for Primary School on area

0.176 H. Reservation No. SW 165 is on Area 0.352 H. for

secondary School and reservation No. MSW 16 for playground is

1.1136 H. The remaining reservation is for 9 mtrs. x 12 mtrs.

wide road and residential purpose.

3. The prayers in the petition are to quash an

advertisement dated 29.03.2010 with its corrigendum issued

later and the subsequent tender notice similarly published in

September 2010. The petitioners before this Court are the

residents of the area. Petitioner No. 1 is a Lecturer while

petitioner No. 2 is an association of local residents formed for

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saving the said playground.

4. One of the prayers in the petition also sought

declaration that modification of reservations suggested by

Respondent No. 3 – Nagpur Municipal Corporation vide notice

dated 26.10.2010 under Section 37 of Maharashtra Recognition

of Trade Practices Act, 1966, (hereinafter referred to as 1966

Act) by seeking deletion of reservation for Primary School and

Secondary School and to add the land thereof to playground is

legal and valid. It is not in dispute that during the pendency of

this petition, Nagpur Municipal Corporation has considered said

proposal and later on decided to withdraw it.. With the result,

original reservation as given in Development Plan stands as it is.

The position declared by Respondent No. 3 on record and vide

affidavit dated 10.08.2011 and declaration that proposal for

minor modification of Development Plan initiated under Section

37 of 1966 Act is dropped, has not been questioned in any way

though thereafter CAO No. 1182 of 2011 has been moved by the

petitioners on 24.08.2011 seeking leave to add para 16G to the

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petition. That amendment was allowed by this Court on

14.09.2011. Thus, the declaration that proposal to drop

reservations for Secondary School and Primary School is valid.

has not been pressed thereafter by the petitioners. Similarly,

though there is a subsequent tender issued in September 2010,

that second tender has also not been questioned before this

Court specifically. However, it needs to be pointed out that

resolution by Respondent No. 2 – Nagpur Improvement Trust

passed on 07.01.2011 accepting the offer received in pursuance

of that tender has been challenged by amending the prayer

clause and by adding grounds on 25.03.2011 and thereafter on

14.09.2011.

5. We have heard Shri Jaiswal, learned counsel for the

petitioner, Shri Kale, learned AGP for respondent No. 1, Shri

Mishra, learned counsel for respondent No. 2, Shri Kaptan,

learned counsel for respondent No. 3 Municipal Corporation and

Shri M.G. Bhangde, learned Senior Advocate with Shri V.V.

Bhangde, learned counsel for respondent No. 4.

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6. After pointing out the facts in brief, Shri Jaiswal,

learned counsel has urged that there are 20 Schools in the

vicinity and hence there is no need of any new Primary and

Secondary School in the area. He has contended that area is

congested one and children are having no facility of playground

and similarly elderly persons have no open space for their

Morning or Evening walk and exercise. He, therefore, contends

that the allotment of entire land with even reservation for

playground to Respondent No. 4 is contrary to provisions of Act

of 1966. He points out that in first tender notice inviting offers,

the area declared for School was 3850 square meters and an

obligation was cast upon successful bidder to develop area ad-

measuring 13666 sq. mtrs. as playground and garden. The

aspirant was expected to have minimum annual turn over

exceeding Rs. 10 crores in any three financial years and net

worth of Rs. 5 crores. This could not materialize and then

similar notice was again published in September 2010 and in this

revised tender, the minimum annual turn over exceeding Rs. 10

crores was maintained as it is and net worth of Rs. 10 crores as

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on 31.03.2010 was asked for. The condition that bidder must

have previous experience of running and managing or must own

at least five Schools or Colleges over past 5 years was also put.

He argues that as there was no response to March 2010 tender,

the conditions needed to be relaxed but here in later invitation,

conditions were made more stringent.

7.

In this background, he has invited attention to clause

9 of the tender notice to urge that entire playground as also

garden is to be used by the School and thus it no longer remains

available for the children residing in the locality or for general

public throughout the day. He contends that the conditions in

the tender have also been modified later on to suit the

Respondent No. 4 and allotment to it on 07.01.2011 is malafide.

Attention is invited to admitted fact that the father of Chairman

of Respondent No. 2 – Trust is on Local Executive Committee (for

Nagpur) of Respondent No. 4. It is urged that because of this,

the condition later published on 06.09.2010 show distinct

changes to see that it can be allotted only to Respondent No. 4.

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The learned counsel has invited attention to provisions of Section

16(1)(d) of Nagpur Improvement Trust Act, 1936, to contend

that if really Chairman of Respondent No. 2 had abstained from

meeting in which resolution in favour of Respondent No. 4 came

to be passed by Respondent No. 3, it was obligatory for the

Trustees to elect somebody as Chairman to preside over that part

of meeting. He contends that declaration of interest has come at

the end of business transacted and the Chairman of Respondent

No. 2 has refused to participate only in decision on the subject

and there is nothing on record to show that he did not

participate in deliberations. It is contended that because of

influence Respondent No. 4 and Chairman of Respondent No. 2,

the condition to allot the reserved land to CBSE School or then

stringent conditions like experience and minimum number of

Schools etc. came to be added. The resolution dated 07.01.2011

passed by Respondent No. 2 is, therefore, challenged as invalid

and unsustainable, as also illegal.

8. Our attention is invited to provisions of Section 22(c)

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of Act of 1966. The learned counsel states that reservation in

Development Plan for playground is a separate entry and

reservation for garden or park is an independent reservation.

When the land in the lay out is reserved for playground, it

cannot be permitted to be used as garden or park. The support

is being taken from Division Bench judgment of this Court in the

case of Sarvajanik Shri Ganeshotsav Mandal, Mumbai & Anr. vs.

Municipal Corporation of Greater Mumbai & Ors., reported at

2006 (4) Mh. L.J. 207, particularly paras 13, 14 & 20 for this

purpose. It is reiterated that because of congested position and

availability of large number of schools in the locality, the

petitioners need a playground. That need is rightly recognized

in Development Plan and hence the playground cannot be

allowed to be put to any other use and cannot be allowed as a

playground to Respondent No. 4 – School.

9. Shri Mishra, learned counsel for Respondent No. 2

states that the petition as filed is not a bonafide or genuine

attempt to redress public grievance. He points out that petition

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has been filed on 01.12.2010 i.e. long after second invitation

dated 06.09.2010, and still it does not contain any challenge or

reference to that tender notice. The effort in the petition was to

have entire ground for playground without any reservation for

school and this was after Nagpur Municipal Corporation passed a

resolution to propose modification under Section 37 of Act of

1966 for this purpose. Respondent 3 Nagpur Municipal

Corporation has dropped that proposal and as petition seeks

something which is contrary to Development Plan, it is not in

public interest. He further contends that proposed reservation in

Development Plan exists since the year 2000 and it is nowhere

the case of the petitioner that reserved land is the only

playground available in the locality. He contends that because of

Section 31(6) of Act of 1966, Development Plan is binding on

Nagpur Improvement Trust. As reservation is for School, the

condition that such School has to be recognized by CBSE is good

and valid. He points out that no objection was raised by

petitioners or any residents before Development Plan was

finalized. In Writ Petition, there is only challenge to tender as

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published on 29.03.2010 and though it has been amended

subsequently twice, there is no express challenge to tender as

published on 06.09.2010.

10. In response to earlier tender dated 29.03.2010, the

only offer of Rs.1.08 Crores was received whereas an amount of

Rs.2.5 Crores was needed for playground development. Hence,

that tender notice was cancelled and fresh tender was published

on 06.09.2010. In fresh tender, Rs.2.5 Crores are stipulated for

the School plots. He contends that the project is Public Private

Participation Project (PPP) and there is no question of any loss to

public revenue. Though two tenders were received, only one

continued its offer on 20.10.2010 when tenders were opened.

Offer of Respondent No. 4 was found above upset price and

Respondent No. 4 had offered Rs. 5.31 Crores. These

developments are not being questioned in writ petition. It was

amended in March 2011 to incorporate challenge to resolution

dated 07.01.2011 and thereafter in September 2011. In this

background, it is contended that Section 16(1)(d) of NIT Act is

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not attracted in present facts. There were total 78 different

subjects before trustees on 07.01.2011 and only one valid offer

was available for consideration. There is no prejudice to

anybody because of that grant. He has invited attention to

photograph placed on record to point out how four play-courts

are to be developed in playground within 18 months.

Respondent No. 4 has agreed to pay Rs. two lakh per year for

maintenance of playground. It is further stated that the

Chairman of Respondent No. 2 (Shri Sanjay Mukherjee) against

whom allegations of bias are made, was transferred in June 2011

and he has not been joined in person. Attention is invited to

reply of Respondent No. 2 to amendment effected by the

petitioners to point out how the playground is to be used. He

further points out that tender also permitted consortium to be

formed and hence it cannot be alleged that conditions in it were

tailor-made.

11. Shri Bhangde, learned Senior Advocate for

respondent No. 4 has assailed the bonafides of the petitioners.

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According to him, petition is not filed in public interest but the

petitioners are actually puppets in the hands of other School

managements in the area. He points out that cost of each tender

notice was Rs.10,000/- and here though the petitioners have

annexed both these tenders, they have not disclosed the source

from which they got its copy. He contends that the petitioners

have not purchased the same. Similarly, attention is invited to

communication/ letters dated 25.11.2008, 07.05.2010,

07.04.2010, resolution dated 12.04.201, copy of note sheet

produced as Annexure P-10 and also copy of impugned

resolution dated 07.01.2011 to contend that the same could not

have become available to the petitioners in normal course. The

impugned letter of intent dated 18.01.2011 is also pointed out to

be of similar nature. Attention is invited to reply filed to CAW

No. 1182 of 2011 to contend that appropriate stand in this

respect is already taken by Respondent No. 4 on record and the

petitioners have not chosen to explain the position. The

judgment of the Hon’ble Apex Court in the case of Dr. B. Singh

vs. Union of India & Ors., reported at (2004) 3 SCC 363, is

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pressed into service to urge that in such circumstances, no

cognizance of the controversy can be taken as PIL and the

petition needs to be dismissed with heavy costs.

12. The recent judgment delivered by the Hon’ble Apex

Court in the case of State of M.P. vs. Narmada Bachao Andolan,

reported at (2011) 7 SCC 639, is pressed into service to

emphasize the need of correct pleadings in such challenge. It is

contended that there is no challenge in entire matter to use of

reserved land for the playground as garden. The use of portion

of land reserved for playground as garden is not fatal and DP

reservation cannot be said to be violative thereby as user

substantially remains the same. Attention is invited to the

judgment of the Hon’ble Apex Court in the case of Forward

Construction Co. vs. Prabhat Mandal (Regd.), Andheri, reported at

(1986) 1 SCC 100, to substantiate this contention.

13. The judgment of this Court in the case of Sarvajanik

Shri Ganeshotsav Mandal, Mumbai & Anr. vs. Municipal

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Corporation of Greater Mumbai & Ors., (supra) relied upon by the

petitioners is sought to be distinguished by pointing out that the

judgment of the Hon’ble Apex Court relied upon by Respondent

No. 4 was not required to be looked into in it. He further states

that there plot reserved for playground was sought to be

developed into swimming pool and sports complex and it was

found contrary to Development Plan. Here, earlier user as per

development plan substantially continues.

14. He further points out that there is no challenge even

to second tender published on 06.09.2010 and there is no plea

that the conditions therein are tailor-made to suit Respondent

No. 4. The subsequent amendments effected by the petitioners

show that they had an opportunity to challenge later tender also

but the same has not been availed. The condition to permit only

CBSE School on reserved land is also not available. There is no

argument and challenge pointing out any damage to public

interest. In this connection, support is being taken from the

judgment in the case of Jagdish Mandal vs. State of Orissa,

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reported at (2007) 14 SCC 517. By pointing out para 21, it is

urged that as a contract is entered into between Respondent No.

4 and Respondent No. 2, scope of judicial review under Article

226 of Constitution of India is very limited and challenge as

raised does not call for any such interference.

15. The judgment of the Hon’ble Apex Court in the case

of Directorate of Education vs. Educomp Datamatics Ltd., reported

at (2004) 4 SCC 19, is also relied upon to show how terms and

conditions of tender need to be appreciated and the limited role

available to Courts of law in such matter. The learned counsel

states that the entire challenge on this count is without any

merit.

16. Inviting attention to proceedings of meeting of

Respondent No. 2 dated 07.01.2011, it is contended that the

relationship sought to be established between the Chairman of

Respondent No. 2 and Respondent No. 4 Society is too remote.

Again reply filed to CAW No. 1182 of 2011 is pressed into service

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for said purpose. Respondent No. 4 is old society registered at

Bombay and subsequently under Bombay Public Trust Act. The

resolution was passed on 15.10.2010 at Bombay to participate in

tender process of Respondent No. 2 and letter of intent was also

forwarded to Respondent No. 4 at Bombay. Respondent No. 4

has come into picture only after publication of tender notice and

the decision to modify tender conditions. Similarly, decision to

accept offer of Respondent No. 4 and to issue it a letter of intent

is taken by Board of Trustees of Respondent No. 2 and not by its

Chairman. These trustees are members of Respondent 2 and

there is no allegation of malafides against any of them. It is

urged that there were total six trustees. In this situation, it is

contended that only for one subject for which there was only one

offer, complete & valid in all respect; it was legally not necessary

for the Chairman of Respondent No. 2 to recuse himself. In any

case, it was not necessary for other trustees to appoint any other

person as the Chairman while considering the said subject. The

judgment of the Hon’ble Apex Court in the case of Javid Rasool

Bhat vs. State of Jammu & Kashimir, reported at (1984) 2 SCC

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641 is pointed out to show how bias in such matter needs to be

looked at. It is contended that here, the Chairman has not

participated in deliberations and was not party to decision. His

mere physical presence, therefore, was not sufficient and cannot

be construed as a fact sufficient to influence the decision making

process. The Full Bench judgment of Madhya Pradesh high-court

in the case of State through Local Self Government Department,

Bhopal vs. Beni Pd. Rathore, reported at AIR 1996 M.P. 101, is

pressed into service for evaluating presence of Chairman in

meeting on 07.01.2011. The learned counsel states that in this

situation, merely because another person is not elected as

Chairman under Section 16(1)(d) of NIT Act, that by itself is not

sufficient to vitiate the resolution dated 07.01.2011.

17. Lastly, attention is invited to the fact that in the said

area, there is no playground since last about 10 years and land

though reserved, is having only shrubs and wild grass, it cannot

be, therefore, used for any purpose. If the petitioners were/are

really interested and acting in public interest, they must explain

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why they have not approached any of the authorities or this

Court earlier in point of time for getting said land cleared and for

its use as per development plan.

18. Shri Jaiswal, learned counsel, in reply, has contended

that the residents of Trimurti Nagar are entitled to have

playground and that playground cannot be used for School. The

judgment of the Hon’ble Apex Court in the case of A. Abdul

Farook vs. Muncipal Council, Perambalur, reported at (2009) 15

SCC 351, is relied upon to urge that in such matters, Court

cannot take too technical approach. It is reiterated that in later

tender, instead of relaxing the terms and conditions, same have

been made more harsh only to favour Respondent No. 4. None

of the documents produced on record by petitioners are pointed

out as incorrect or false, & hence Respondent No. 4 should not

hide behind technicalities. It is also argued that the Chairman of

Respondent No. 4 duly communicated his interest in awarding

tender to Respondent No. 4 on 07.01.2011 and his presence,

therefore, has influenced the entire proceedings. He, therefore,

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sought for an order in favour of the residents of Trimurti Nagar.

19. Recent judgment on which Shri Jaiswal, learned

counsel has placed reliance is in the case of A. Abdul Farook .vrs.

Municipal Council, Perambalur (supra). Paragraph no.33 there

contains observations of Hon’ble Apex Court that in a public

interest of a nature as before it, it is not necessary for the Court

to abide by strict rules of pleadings and even if it is found that

petitioners are busy bodies, Courts while discharging them can

proceed to deal with the public interest litigation suo motu.

Earlier judgments have been also noted to show that the public

interest litigation is inquisitorial in nature, while private

litigation is adversarial. In public interest litigation Court is not

supposed to strictly follow ordinary procedure. Hon’ble Apex

Court finds permanent arches allowed to erected by municipal

council in political interest and not in public interest.

20. Shri Bhangde, learned Senior Counsel has relied

upon the later judgment of larger bench of Hon’ble Apex Court in

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the case of State of M.P. .vrs. Narmada Bachao Andolan (supra),

to urge that the law on pleadings is also applicable to public

interest litigation. Perusal of paragraph nos. 8 to 11 of the said

judgment show the purpose of pleadings and issues. The Hon’ble

Apex Court has observed that if any factual or legal issue, despite

having merit has not been raised by the parties, the Court should

not decide the same, as the opposite counsel does not have a fair

opportunity to answer the line of reasoning adopted in that

regard and such a judgment may be violative of principles of

natural justice. In paragraph no.12, the Hon’ble Apex Court has

observed that every technicality in procedural law is not

available as a defence in matters of grave public importance. In

paragraph no.13, it is observed that there must be sufficient

material in petition on the basis of which the Court may proceed.

Public interest litigation must have factual foundation to show

basis on which litigant is claiming relief and information

furnished by him should not be vague and indefinite. Proper

pleadings are necessary to meet the requirements of principles of

natural justice. Even in public interest litigation, litigant cannot

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approach the Court to have a fishing and roving enquiry. In

public interest litigation before the Hon’ble Apex Court,

impression was given that some drastic steps would be taken by

the authorities causing great hardship to large number of

persons. The petition however, did not disclose the factum of

number of persons who had already vacated their houses and

handed over possession. Contention was urgent measures were

required to be taken by the Courts and Hon’ble Apex Court has

noted that there was no material to adjudicate upon the issue

involved in the public interest litigation. High Court in this

background had directed the Authority to submit report on

rehabilitation work and authority vide its report then pointed out

a huge amount of several thousand crores already invested and

disbursed. Majority of the families had already shifted and

amount of Rs. 9924 Crores was already disbursed amongst the

claimants and sum of Rs. 589 Crores was only left to be

disbursed. The Hon’ble Apex Court has noted that there were

no pleadings before the High Court on the basis of which a Writ

Petition could have been entertained and decided and it

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deserved rejection at threshold. It is also noted by the Hon’ble

Apex Court that even in public interest litigation, in absence of

such factual matrix, similar course can be followed by the Courts.

This judgment therefore shows total absence of pleadings on

facts vital for consideration & completion of more that 95% of

rehabilitation has weighed with Hon. Apex Court. Such is not the

position here.

21. In Dr. B. Singh .vrs. Union of India and others

(supra), the Hon’ble Apex Court has considered the issue of

bonafides of petitioner after observing that time has come to

weed out the petitions which though titled as public interest

litigation are in essence something else. The Courts at times

entertain such private disputes which results in wasting of

valuable judicial time. It has been noted that in service matters,

public interest litigation are not entertained. The Hon’ble Apex

Court has noted that such public interest litigation could have

been thrown out by the High Court. Tendency growing slowly to

permit setting in motion criminal law jurisdiction often

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unjustifiably just for getting publicity and giving adverse

publicity to the opponent, is also noted. In the process it is also

observed that official documents are being annexed without even

indicating as to how the petitioner could possess them. The

story of accidentally finding such documents was not believed.

Where such petitioner does not have even a remote link with the

issue involved, the Hon’ble Apex Court has stated that it becomes

imperative for Court to lift the veil and uncover the real purpose

of the petition and the real purpose of the petition and real

person behind it. The issue before the Hon’ble Apex Court was

about a petition purported to have been filed questioning the

propriety of a person being considered for appointment as a

Judge.

22. None of the respondents have contended that present

issue cannot form a subject matter of scrutiny in Public Interest

Litigation. The details of reservation with respective earmarked

area are already mentioned by us above. It is the stand of

Nagpur Improvement Trust that it is not required to obtain

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development permission from Nagpur Municipal Corporation in

respect of developments undertaken by it as a development

agency and State Government through its notification dated

27.02.2002 has clarified that it can continue functioning as

Planning Authority for such developments undertaken by it. We

find that notification issued continues Respondent 2 for limited

purpose in areas transferred to Municipal Corporation. Present

area i.e. Bhamti Parsodi area is one such area. Though

petitioners have raised this issue in para 4 of their petition, no

arguments about absence of authority in Respondent 2 are

advanced by them. The Respondents like State of Maharashtra,

Nagpur Corporation have also not argued any thing in this

respect. However, in affidavit dated 11.08.2011 sworn by

Ravindra Rambhau Kumbhare, Additional Municipal

Commissioner, states that “The Nagpur Improvement Trust,

which was planning and development authority in respect of

these reserved lands prior to 27th February, 2002, had submitted

objection to the proposed development plan”. But none of the

learned Counsel have thought it proper to invite our attention to

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it. We fail to understand whether use of past tense in this

statement has any significance. The effort made by citizens to

secure entire land from Khasra No. 12 as playground by deleting

reservation of Primary School and Secondary School and for that

purpose to seek minor modification in final Development Plan as

per Section 37 of Act of 1966, could not succeed. But then

details of those 20 schools in para 11 of the petition are not in

dispute. The petitioners as also respondents have not invited

attention of Court to proceedings of pre-bid meeting conducted

by the Chairman of Respondent No. 2 on 17.09.2010. Two of

the institutes interested in submitting tender are reported to

have participated in it. However, minutes do not record their

names. First clarification given by Respondent No. 2 is about

area of land under School project. It is stated to be revised to

4125.50 sq. mtrs. or 1.02 Acres. This seems to be because of

requirement of CBSE that plot of School to be recognized by it

must have area above one Acre. The provision in clause 5.8(2)

of the tender document has been amended accordingly and

reserved price has also been modified to Rs.2.75 Crores. The

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timings for use of playground and garden for School are revised from

Morning 8.30 to 4.30 in the evening. For general public time given is

5.00 AM to 8.00 AM and 5.00 PM to 9.00 PM. T.C. (Terms and

Conditions) and charges for use of playground and garden for School

are stated to be Rs.2 lakh per year with 5% increase per year over

previous year and Respondent No. 2 has agreed for arranging

maintenance of garden. Ownership of playground and garden is

stated to be with Nagpur Improvement Trust. No ground floor

construction is permitted except for staircase and lift. The

requirement of 4.50 meter from Ground level to the beam soffit of stilt

parking is also clarified. The question about grant of relaxation for

marginal space for better planning of School is answered by stating

that relaxation shall be allowed as per Development Control Rules.

The detailed specification and estimate for the development of

playground and garden is stated to be enclosed along with some

communication as Annexures Y & Z. One of the queries required

Respondent No. 2 to specify timing of restaurant for general public.

This timing is specified to be from 5.00 PM onwards.

23. The perusal of tender document vide clause 5.5.2(xi)

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shows that 10 seats in the School every year are to be filled in

exclusively on recommendations of Chairman of Respondent No.

2. The tender document states playground and garden as Project

A and Primary and Secondary School as Project B. The perusal of

clause 5.5.2 (xii) shows that if bidder fails to comply (Garden

project), it would be considered as major breach of terms and

conditions. Thus, failure to comply with playground part

perhaps is not a major breach.

24. This perusal of minutes of pre-bid meeting with

tender document, therefore, reveals a further reduction in the

area of playground. The area for school is increased and some

area of playground is also allowed to be developed as a garden.

In Section 22(c) of Act of 1966, playground is an independent

reservation implying thereby that it cannot be construed to mean

reservation for park or garden. In other words, it may require

minor modification under Section 37 of the Act of 1966. The

garden as also playground is to be used by School during day

time and it becomes available to public only after 5.00 PM.

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Thus, children in the locality who are beneficiaries of that

Development Plan reservation are supposed to play between

5.00 AM to 8.00 AM and 5.00 PM to 9.00 PM. Insofar as garden

is concerned, very same time limits apply. Not only this, but

indirectly a commercial user is also permitted and a restaurant is

allowed to come up either in playground or in garden. That

facility perhaps is to be used by School and person running it can

cater to general public after 5.00 PM. Such person will obviously

be a contractor as Respondent 4 or School will not run a

restaurant for general public. Such commercial user and such

exploitation of property or garden has not been communicated

to general public as there is no such mention in documents

inviting offer. Clause 5.3 of tender describes the entire area to

be purely residential area. Not only this, but availability of area

as per CBSE requirement is also not disclosed to general public.

It cannot be presumed that other institutions having CBSE

affiliation and running Schools in the Country would not have

been interested in opening a School in the city, had they known

that land as required by CBSE with such facilities is available for

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them. It is equally important to note that this meeting dated

17.09.2010 has been chaired by the Chairman of Nagpur

Improvement Trust against whom there are allegations of bias

and partiality. As per tender document, cost of project A

(playground & garden) to be borne by Respondent 4 is Rs. 2.50

Crores minimum & it is as per NIT’s 2008-09 CSR. But then offer

on that basis & for that sum is being accepted in 2010–2011 ie.

almost 2 years later. No pains are taken to point out CSR rates

for 2010-2011. It also needs mention that last date of E-

submission of tender was 05.10.2010 & opening has been on

05.10.2010. But then body of Respondent 4 at Mumbai did

resolve to participate in tender on 15.10.2010.

25. Shri Jaiswal, learned counsel has relied upon the

Division Bench judgment of this Court in the case of Sarvajanik

Shri Ganeshotsav Mandal, Mumbai vs. Municipal Corporation of

Greater Mumbai, (supra) In this judgment, open space reserved

for Development Plan or playground was being put to use as

park. The Hon’ble Division Bench has noted that ordinary

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meaning of playground is a outer area for children to play on or

on piece of land set up for open air recreation, specially for

children or then one connected with School. The judgment of

learned Single Judge of this Court in the case of C.R. Dalvi and

Ors. vs. Municipal Corporation of Greater Bombay and Ors.,

reported at 1986 Mh. L.J. 373, holding that such land reserved

in Development Plan cannot be utilized for any purpose other

than play of children and similar recreational activities is also

noted by Division Bench. In para 20, the Division Bench then

notices that playground, swimming pool, gymnasium and park

even though covered under the head (Recreational grounds and

facilities) is a separate and distinct “use” category and cannot be

put to interchangeable use wholly or partly. The Division Bench,

therefore, found that swimming pool can never be covered by

expression playground or vice versa. The Division Bench

concluded that land reserved for playground cannot be

permitted for the purpose of swimming pool and sports complex.

26. Shri Bhangde, learned counsel has relied upon the

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judgment in the case of Forward Construction Company vs.

Prabhat Mandal (Regd.) Andheri, (supra), where the reservation

was for bus depot and the land was sought to be put to use by

compounding bus depot with commercial activity of a shopping

complex. The plot was in commercial road and was acquired by

Municipal Corporation for bus depot and ultimately was used for

bus depot with commercial purpose. The Hon’ble Apex Court

held that it did not constitute “change”. It is noted that general

meaning of word change is “to make or become different, to

transform or convert”. If the user was to be completely or

substantially changed, only then the prior modification of

Development Plan was necessary. In facts before the Hon’ble

Apex Court, user of plot was not changed. It was being used as a

bus depot with commercial use to augment income of

corporation for public purpose. It is, therefore, obvious that a

plot in commercial area acquired for bus depot was being used

not only for bus depot but also for commercial purpose. Both

user were legal and also possible.

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27. The judgments on which respective counsel have

placed reliance show that where original reservation is not in any

way increased and an activity incidental thereto is taken up, the

Hon’ble Apex Court has found that such activity is not in

violation of Development Plan reservation. Here, Respondent

No. 2 has limited powers of continuing with development

already undertaken and in case, area of respective reservation

i.e. under DP reservation is to be changed, it must obtain

previous approval of Respondent No. 3 – Nagpur Municipal

Corporation. Similarly, its changing purposes by putting part of

land to use as garden or then for commercial purpose as

restaurant, the object behind providing entire land for

playground is definitely frustrated. For use of certain facilities

in playground, the children/ their parents are supposed to pay.

Charges for use of tennis court , throw ball, basket ball, skating

rink, table tennis, craft etc. for equipments & maintenance of

these Courts are to be worked out by Respondent No. 2. Only

playground to be handed over and available to children free of

costs. It does not speak anything about restaurant. In facts

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before this Court, the area of playground is being reduced, a

garden though not envisaged in DP is introduced & is proposed

in part of playground. Similarly, commercial user by allowing

restaurant open to public is also permitted. The area for school

is also increased. It is, therefore, obvious that all these changes

cannot be viewed as residential and in this situation, test of

substantial user cannot be applied.

28. This brings us to question of the presence of the

Chairman of Respondent No. 2 during the meeting. The

proceedings no doubt record that the interest which Chairman of

Respondent No. 2 had in the subject was disclosed by him and

thereafter on 07.01.2011 the decision has been taken. The

minutes record the history and in the meeting of trustees nobody

appears to have either moved that subject or seconded it. None

of the parties had raised any contention in this respect and hence

we are also not basing our adjudication upon this aspect. But at

the end of minutes, the fact of disclosure of interest is recorded.

The Chairman had disclosed that his father is a Committee

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35
Member of Respondent No. 4 for Nagpur area. Hence, the

Chairman would not participate in taking decision and the

Trustees, therefore, had to take appropriate view on merits. It is

further recorded that this fact was noted by trustees and then

approval was given to allotment of 4125.50 sq. mtrs. of land on

premium of Rs.281 lakh to Respondent No. 4. This also shows

that there was no discussion at all.

29. The perusal of judgment in the case of Javid Rsool

Bhat vs. State of Jammu and Kashmir, (supra) reveals that there

contention was that the selection of candidates was vitiated

because of presence of father of one of the candidates on

Selection Committee. The Principal of Medical College, Srinagar,

whose daughter was a candidate for admission to Medical

College had informed Selection Committee at the very outset

about it and had also stated that he would not be concerned with

written test and would not be present at the time of interview of

his daughter. The other members of Selection Committee

accepted and did not think it necessary to advise Government to

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appoint a substitute member of Selection Committee. The

Hon’ble Apex Court has noted that the procedure adopted by

Selection Committee and members concerned was not in

accordance with well known and accepted procedure. It is also

noted that in the absence of malafides, it would not be right to

set right the selection merely because one of the candidates

happened to be related to Member of Selection Committee. In

para 14, the Hon’ble Apex Court has noted facts in case of A.K.

Kraipak vs. Union of India, reported at AIR 1970 SC 150, and

then concluded that in facts before it when other candidates

were interviewed, Principal was not aware of marks obtained

either by his daughter or by any other candidate and there was

no occasion to suspect his bonafides even remotely. There was

not even a suspicion of bias and hence there was no violation of

principles of natural justice.

30. In State of M.P. Through Local Self Govt. Department,

Bhopal vs. Beni Pd. Rathore, (supra), Full Bench of Madhya

Pradesh has considered similar aspect but in case of meeting of

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37
no confidence and then noted that requirement of a law to

preside over meeting if President is present, contemplated not

mere physical presence but presence coupled with readiness to

preside over the meeting and in the absence of President or in

the event of his declining, it was for Vice President to preside.

31. In facts which we have noticed, the decision as to

area under reservation was taken at the time of pre-bid meeting.

But then it was not made known to general public. The

premium amount was proportionately raised but it was not

communicated to public. That meeting was conducted by the

Chairman himself. The material changes and diversions from

development plan are already noted by us above and absence of

any details on the issue is also noted by us. We, therefore, find

that in such situation, it was obligatory for Respondent No. 2 as

also Respondent No. 4 to bring on record the circumstances in

which the changes were brought and accepted. Respondent No. 2 has

remained satisfied by throwing burden on the shoulders of the

petitioners and by contending that as necessary details are not

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pleaded, this Court cannot take cognizance of the matter as

Public Interest Litigation. There bonafides have been questioned

by pointing out the production of documents which normally

could not have reached them. In these facts, we do not find that

production of documents by itself show any oblique motive. The

issue brought by them before Court is in public interest and they

have succeeded in pointing out how a development plan

reservation is being violated.

32. The judgment of the Hon’ble Apex Court in the case

of Dr. B. Singh vs. Union of India, (supra) considers the filing of

PIL in service matters. We find observations therein not

applicable directly in present facts. In any case, we are not in a

position to find out any oblique motive with the petitioners who

are residents of the area. The existence of about 20 Schools in

the vicinity and, therefore, no need of any other School is

already on record. Therefore, only Planning authority had

proposed minor modifications under Section 37 of Act of 1966

by deleting reservation for School by adding said land to

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39
playground. However, later on the said authority viz.,

Respondent No. 3 has gone back on its proposal.

33. State of Madhya Pradesh vs. Narmada Bachao

Andolan, (supra) shows the application of law of pleadings. In

present matter, necessary material is already on record and the

petitioners have sufficiently pleaded their case of violation of

development plan reservation. The first question which arises

for consideration is whether in such circumstances when several

Schools are available in the vicinity, the State Government or any

other authority which has to permit the School to be open, is

duty bound to grant permission to Respondent No. 4 merely

because of Development Plan reservation. The other question is

whether Planning Authority in the light of provisions of Section

31(6) of Act of 1966 can alter the area of land under reservation

and whether Respondent No. 2 – who has been given limited

role, can do so without recourse to provisions of Section 37

thereof. It is also not understood how a public authority like

Respondent No. 2 can seek reservation of 10 seats from

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Respondent No. 4 in such matters. All these issues definitely are

issues in larger public interest.

34. Shri Bhangde, learned Senior Advocate has

contended that courts have limited jurisdiction while

appreciating the terms and conditions of the tender. The perusal

of judgment in the case of Directorate of Education vs. Educomp

Datamatics Ltd., (supra), particularly paras 11 & 12 show that

terms and conditions are prescribed by competent authority

bearing in mind the nature of contract and such authorities are

best judges to prescribe the same. It is not for the courts to

comment whether better conditions and terms could have been

prescribed. In such matters, such authorities need to be given a

free hand. The State Government can choose its own method to

arrive at a decision and fix its own terms of invitation to tender

and that is not open to judicial scrutiny. However, the Hon’ble

Apex Court has also found that Court can examine decision

making process.

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35. In A. Abdul Farook vs. Municipal Council, Perambalur,

(supra), the Hon’ble Apex Court has held that in public interest

litigation, it is not necessary for courts to abide by strict rules of

pleadings and such litigation is inquisitorial in nature. The

question before the Hon’ble Apex Court was regarding erection

of arches and no objection certificate issued by Municipality to

construct the same on the condition that there would be no

hindrance to traffic. The Secretary of District Consumer Council

had filed writ petition for issuance of writ of mandamus

forbearing the respondents from putting up such arches. There

was also challenge to a Ward Member, who sought certiorari for

quashing no objection certificate. The learned Single Judge

dismissed that writ petition. In turn, appeal was preferred. The

Division Bench of High Court dismissed that appeal as also writ

petition and then the Secretary of District Consumer counsel and

Ward Member approached the Hon’ble Apex Court. The Apex

Court allowed the appeal. It is noted by the Hon’ble Apex Court

in para 37 that though the authorities may grant permission to

construct such permanent structure, there must be public interest

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42
in carrying it out not in private interest or interest of any

political party. The judgment, therefore, shows that whenever a

public interest is found, the Court can interfere in public interest

litigation without bothering for technical objections as attempted

to be raised by the respondents.

36. We find it necessary to mention State of Uttarnchal

vs. Balwant Singh Chaufal, reported at AIR 2010 S.C. 2050

=(2010) 3 SCC 402, where Hon’ble Apex Court has laid down

certain norms and important out of it are :–

“(3) The courts should prima facie verify the

credentials of the petitioner before entertaining a P.I.L.

(4) The court should be prima facie satisfied regarding
the correctness of the contents of the petition before

entertaining a PIL. (5) The court should be fully
satisfied that substantial public interest is involved
before entertaining the petition. (6) The court should

ensure that the petition which involves larger public
interest, gravity and urgency must be given priority
over other petitions.(7) The courts before entertaining
the PIL should ensure that the PIL is aimed at
redressal of genuine public harm or public injury. The

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43
court should also ensure that there is no personal
gain, private motive or oblique motive behind filing

the public interest litigation. (8) The court should also

ensure that the petitions filed by busybodies for
extraneous and ulterior motives must be discouraged
by imposing exemplary costs or by adopting similar

novel methods to curb frivolous petitions and the
petitions filed for extraneous considerations. ”

While tracing history of PIL in country, Hon’ble Apex

Court noted that the public interest litigation is an extremely

important jurisdiction exercised by the Supreme Court and the

High Courts. The Courts in a number of cases have given

important directions and passed orders which have brought

positive changes in the country. The Courts’ directions have

immensely benefited marginalized sections of the society in a

number of cases. It has also helped in protection and

preservation of ecology, environment, forests, marine life,

wildlife etc. etc. The court’s directions to some extent have

helped in maintaining probity and transparency in the public

life. Hon’ble Apex Court while exercising its jurisdiction of

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44
judicial review realized that a very large section of the society

because of extreme poverty, ignorance, discrimination and

illiteracy had been denied justice for time immemorial and in

fact they have no access to justice. Predominantly, to provide

access to justice to the poor, deprived, vulnerable, discriminated

and marginalized sections of the society, Hon’ble Court has

initiated, encouraged and propelled the public interest litigation.

The litigation is upshot and product of Hon’ble Apex Court’s

deep and intense urge to fulfill its bounded duty and

constitutional obligation. The courts expanded the meaning of

right to life and liberty guaranteed under Article 21 of the

Constitution. The rule of locus-standi was diluted and the

traditional meaning of ‘aggrieved person’ was broadened to

provide access to justice to a very large section of the society

which was otherwise not getting any benefit from the judicial

system. In paragraph 36, Hon’ble Apex Court observes that little

Indians in large numbers seeking remedies in courts through

collective proceedings, instead of being driven to an expensive

plurality of litigations, is an affirmation of participative justice in

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45
our democracy. Hon’ble Court states that the narrow concepts of

’cause of action’, ‘person aggrieved’ and individual litigation are

becoming obsolescent in some jurisdictions.

37. Thus there can not be any estoppel or

acquiescence in such matters by local residents when this Court

has found the cause presented to it as public cause & cognizance

is taken in larger public interest. The limitations laid by Hon’ble

Apex Court can not enable the wrongdoers & manipulators to

hide behind the technicalities or by continuing to indulge in

activities prejudicial to public at large. In Mohd. Aslam v. Union

of India, (2003) 4 SCC 1, Hon’ble Apex Court has considered the

technical objections raised in situation when it has treated

letters, telegrams or postcards or news reports as writ petitions.

In such petitions, on the basis of pleadings that emerge in the

case after notice to different parties, relief can be given or

refused. Therefore, Court should not approach matters where

public interest is involved in a technical or a narrow manner.

Particularly, when Court has entertained the petition, issued

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46
notice to different parties. It would not be appropriate for the

Court to dispose of the petition on such grounds. In proceeding

before Hon’ble Apex Court initiated as a public interest petition,

several reliefs were claimed but after the interested parties were

impleaded and their pleadings were put forth, Hon’ble Apex

Court gathered what crystallized therefrom as the controversy

involved. Jagdish Mandal vs. State of Orissa, (supra) laying down

scope of judicial review in award of contracts is therefore not

attracted & decisive in present facts.

38. In this situation, we find that respondents 2 & 3

have not made clean breast of matter. These Respondents along

with last Respondent are trying to take shelter behind

technicalities. Violation of final development plan and injury to

rights of local residents for whose benefit the reservation exists is

sufficiently established and needs redress in public interest.

Respondent no. 1 State of Maharashtra has not found it

necessary to clarify the position. We find that E-tender floated by

Respondent 3 does not depict clear position which said

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47
Respondent has revealed in pre-bid meeting on 17/9/2010. We

therefore quash the entire process undertaken by Respondent 3

including allotment effected in favour of Respondent 4 on

07.01.2011.

39. Petition is accordingly allowed, however, without any

order as to costs.

JUDGE JUDGE

At this stage, Shri Bhangde, learned counsel for

Respondent No. 4 states that the position prevailing today should

be continued for a period of six weeks so as to enable

Respondent No. 4 to take further appropriate steps in the matter.

Shri Jaiswal, learned counsel for the petitioner is

opposing the request.

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However, in the interest of justice and looking to the

nature of controversy, we direct parties to maintain status quo as

on today for a further period of six weeks. The said order shall

cease to operate automatically thereafter.

                JUDGEig                                JUDGE   
                   
                                  *******
      


     *GS.
   






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Lokha vs The State Of Maharashtra on 11 October, 2011

Bombay High Court
Lokha vs The State Of Maharashtra on 11 October, 2011
Bench: A.M. Khanwilkar, P. D. Kode
PPD



                                          1
                                                               WP.2188-11




                                                                           
                                                  
           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                CRIMINAL APPELLATE JURISDICTION

              CRIMINAL WRIT PETITION NO.2188 OF 2011




                                                 
      Shamsher Singh S/o. Balwinder           ]
      Singh, Age 18 years.                    ]
      An Indian Inhabitant,                   ]
      Residing at Vand PO                     ]




                                         
      Lokha, The Patli, District Taran,       ]
      Taran (Punjab).      ig                 ] Petitioner
                                                [Son of detenu]

      Balwinder Singh.                        ] Detenu
                         
               Versus

      1.   The State of Maharashtra,     ]
             

           through the Secretary to the  ]
           Government of Maharashtra,    ]
          



           Home Department (Special),    ]
           Mantralaya, Mumbai - 400 032. ]

      2.   Medha Gadgil,                  ]
 




           the Principal Secretary        ]
           (Appeals and Security) to the  ]
           Government of Maharashtra, ]
           Home Department and            ]
           Detaining Authority, Mantralaya,]
           Mumbai - 400 032.              ]





      3.   The Superintendent of Prison,      ]
           Nasik Road Central Prison,         ]
           Nasik Road, Maharashtra.           ]

      4.   The Officers of Customs,           ]
           Air Intelligence Unit,             ]
           Mumbai.                            ] ..Respondents.




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                                                              WP.2188-11




                                                                          
                                ..........
    Smt. A.M.Z. Ansari, Advocate for the Petitioner.
    Mrs. M.H. Mhatre, A.P.P. for the State.




                                                 
                                ..........


                    CORAM :       A. M. KHANWILKAR AND




                                                
                                  P. D. KODE, JJ.

                         DATE OF RESERVING THE
                         JUDGMENT: 03rd OCTOBER, 2011.




                                      
                         DATE OF PRONOUNCING THE
                         JUDGMENT:
                           ig        11th OCTOBER, 2011


    ORAL JUDGMENT (PER A. M. KHANWILKAR, J.) :
                         
    1.     This   Writ    Petition,   under   Article      226       of     the

Constitution of India, takes exception to the detention order

passed by the Principal Secretary (Appeals and Security),

Government of Maharashtra, Home Department and

Detaining Authority dated 23rd December, 2010 against the

petitioner’s father Shri Balwinder Singh (the detenu) in

exercise of powers under Section 3(1) of the Conservation of

Foreign Exchange and Prevention of Smuggling Activities

Act, 1974, (hereinafter referred to as “the COFEPOSA Act”),

with a view to prevent the detenu in future from smuggling

the goods.

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WP.2188-11

2. The detenu was arrested by the officials of the

Customs Department on 21st March, 2010 when he was found

to be in possession of 6000 Micro SD Memory cards of 2 GB

capacity. These foreign origin memory cards were valued at

Rs.12,00,000 (CIF) (provisionally) and Rs.18,60,000/- (LMV)

(provisionally). While he arrived by Air India Flight

No.AI-315 as domestic passenger from Delhi to Mumbai, the

goods were seized by the officers. The petitioner, however,

was granted bail by the Metropolitan Magistrate when he

was produced on the next date i.e. on 22nd March, 2010 in

connection with the said offence. The petitioner availed of the

bail on 29th March, 2010. While he was in police custody,

statement under Section 108 of the Customs Act was

recorded. Even after being released on bail, further

statement under Section 108 of the Customs Act of the

detenu as well as the co-accused came to be recorded by the

officials of the Customs Department.

3. It is, however, only on 14th June, 2010, proposal to

detain the said Shri Balwinder Singh (the detenu) was

forwarded by the Sponsoring Authority, which in the first

place, was placed for approval before the Commissioner (AP).

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WP.2188-11

The Commissioner (AP) approved the proposal on 22nd July,

2010. Thereafter the proposal was placed before the

Screening Committee on 28th July, 2010. The same was

approved by the Screening Committee on 11th August, 2011.

After approval of the Screening Committee, the proposal was

placed before the Detaining Authority for consideration on

27th August, 2010. The detention order, however, was passed

on 23rd December, 2010, which was eventually served on the

detenu. The detenu came to be arrested sometime in April,

2011 and was sent to Nasik Road Central Prison by the

Executing Authority.

4. The petitioner, being the son of the detenu, has

approached this Court by way of Writ Petition challenging the

said detention order.

5. The petition is resisted by the respondents by filing

affidavit of the Detaining Authority as well as the Sponsoring

Authority. We shall advert to the relevant facts stated in the

said affidavit at the appropriate stage.

6. During the course of arguments, the Counsel for the

petitioner has primarily raised five broad points to challenge

the impugned detention order. The first ground is that there

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WP.2188-11

is inordinate and unexplained delay in issuing the detention

order. So far as this ground is concerned, the argument is

threefold – firstly, there was inordinate and unexplained

delay in initiating proposal by the Sponsoring Authority;

secondly, there was inaction and callousness in processing

the file in the office of the Commissioner who was

responsible to grant approval to the said proposal; thirdly, the

Detaining Authority also dealt with the proposal in a casual

manner and there was inordinate and unexplained delay in

passing the order.

7. The second main contention is that the detention order

suffers from non-application of mind by the Detaining

Authority. This contention is twofold – firstly, going by the

reply filed by the Detaining Authority it appears that she

proceeded to examine the proposal and passed the detention

order on the very same day when the proposal was placed

before her along with all the relevant documents. The second

shade of the said ground is that the affidavit does not explain

as to whether the grounds were formulated by the Detaining

Authority herself or whether it was prepared by someone

else and more so whether the grounds were prepared,

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WP.2188-11

reviewed and updated by her after receipt of the further

documents.

8. The third contention is that since the detenu was

released on bail on 29th March, 2010 till the passing of the

detention order had not indulged in any prejudicial activity of

similar nature. Thus, the live-link had snapped when the

detention order was issued on 23rd December, 2010.

The

Detention Authority has failed to record its satisfaction in this

behalf.

9. The fourth ground on which the impugned detention

order is challenged is that there was inordinate and

unexplained delay of around four months in execution of the

detention order.

10. The fifth ground on which the detention order is

challenged is that the goods in question which have been

seized from possession of the detenu were not prohibited by

law. At best, it was a case of an attempt by detenu of causing

loss to public exchequer. That issue could have been

addressed by imposing penalty as a condition precedent for

return of the goods to the detenu. For that, the detention

order, by no standard, was just and appropriate action.

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WP.2188-11

11. On the above grounds, the validity and correctness of

the impugned detention order is put in issue.

12. We shall revert to the first contention of the

petitioner about the delay in issuance of the detention order.

From the pleadings on record, there is no difficulty in

accepting the grievance of the petitioner that although the

Sponsoring Authority has filed reply affidavit to oppose this

Petition, it has failed to indicate as to what prevented the

Sponsoring Authority to initiate the proposal immediately

after 29th March, 2010 when the detenu was released on bail

in connection with the arrest and seizure of memory cards

valued at Rs.52,00,000 (CIF) and Rs.68,60,000/- LMV from

Hongkong to Mumbai on 21st March, 2010. It is also noticed

that the statement of the detenu under Section 108 of the

Customs Act was recorded immediately after his arrest on

21st March, 2010. There is nothing in the affidavit of the

Sponsoring Authority to indicate as to whether the said

statement by itself was not sufficient to proceed against the

detenu under the provisions of the COFEPOSA Act. Further

more, the affidavit is also silent about the fact that although

the further statement of the detenu under Section 108 of the

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WP.2188-11

Customs Act was recorded on 8th April, 2010 and again on 9th

April, 2010 & 3rd June, 2010, in the successive statements,

until recording of the statement dated 3rd June, 2010, there

was no sufficient material before the Sponsoring Authority to

proceed against the detenu under the provisions of the

COFEPOSA Act. The proposal was admittedly initiated by the

Sponsoring Authority only on 14th June, 2010. Suffice it to

observe that there is no explanation, much less sufficient

explanation, given by the Sponsoring Authority as to why he

did not think it necessary to immediately initiate the proposal

as soon as the detenu was released on bail on 29th March,

2010 and more so on the basis of the successive statements

recorded by the Officials of the Customs Department under

Section 108 of the Customs Act firstly on 21st March, 2010

and thereafter again on 8th April, 2010 and on 9th April, 2010.

What was the necessity of waiting till recording of further

statement of the detenu on 3rd June, 2010, has not been

explained in the affidavit.

13. Similarly, we find that when the proposal was placed

before the Commissioner for grant of approval on 14th June,

2010, The Commissioner granted approval only on 22nd July,

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WP.2188-11

2010. No explanation has been given as to what prevented

the Commissioner to process the file with utmost dispatch

and to wait for a period of five weeks from the date of

receipt of the proposal. Similarly, it is noticed that even the

Detaining Authority has not acted with utmost dispatch.

Indeed, the Detaining Authority has offered explanation for

the period between 27th August, 2010 when the proposal was

received till 18th November, 2010. Time taken during this

period cannot be stated to be without sufficient cause.

However, no explanation whatsoever has been offered by the

Detaining Authority as to when the proposal was complete in

all respects on 18th November, 2010, why the decision was

taken only on 22nd December, 2010. That means the

Detaining Authority kept the file pending in her office which

was complete in all respects for a period of five weeks

without any sufficient cause.

14. Affidavit filed by the Detaining Authority does not

reveal that after 18th November, 2010 she was examining the

file on day to day basis, much less, at reasonable intervals

and what prevented her from taking decision before 22nd

December, 2010. On this finding, the petitioner may be

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WP.2188-11

justified in criticizing the action of the Sponsoring Authority

as well as the Sanctioning Authority and also that of the

Detaining Authority. However, the contention regarding delay

in issuance of the detention order will have to be answered

keeping in mind the principle enunciated by the Apex Court

in the case of Rajendrakumar Natvarlal Shah Vs. State of

Gujarat and others reported in (1988) 3 Supreme Court

Cases 153. It may be useful to refer to paragraph Nos.10 to

12 of the said decision, which read thus :

“10. Viewed from this perspective, we wish to
emphasise and make it clear for the guidance of the different
High Courts that a distinction must be drawn between the
delay in making of an order of detention under a law relating

to preventive detention like the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974

and the delay in complying with the procedural safeguards of
Article 22(5) of the Constitution. It has been laid down by
this Court in a series of decisions that the rule as to
unexplained delay in taking action is not inflexible. Quite

obviously, in cases of mere delay in making of an order of
detention under a law like the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974
enacted for the purpose of dealing effectively with persons
engaged in smuggling and foreign exchange racketeering

who, owing to their large resources and influence have been
posing a serious threat to the economy and thereby to the
security of the nation, the courts should not merely on
account of delay in making of an order of detention assume
that such delay, if not satisfactorily explained, must
necessarily give rise to an inference that there was no
sufficient material for the subjective satisfaction of the
detaining authority or that such subjective satisfaction was

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WP.2188-11

not genuinely reached. Taking of such a view would not be

warranted unless the Court finds that the grounds are ‘stale’
or illusory or that there is no real nexus between the grounds
and the impugned order of detention. The decisions to the

contrary by the Delhi High Court in Anil Kumar Bhasin v.

Union of India & Ors., Crl. W. No.

410/86 dated 2.2.1987;
Bhupinder Singh v. Union of India & Ors., [1985] DLT 493;
Anwar Esmail Aibani v. Union of India & Ors., Crl. W. No.

375/86 dated 11.12.1986; Surinder Pal Singh v. M.L.
Wadhawan and Ramesh Lal v. Delhi Administration, Crl. W.
No. 43/84 dated 16.4.1984 and other cases taking the same
view did not lay down good law and are accordingly

overruled.

11. In the present case, the direct and proximate

cause for the impugned order of detention was the
importation in bulk of Indian made foreign liquor by the
appellant acting as a broker from across the border on the

night between December 29/30, 1986. The District
Magistrate in the counter- affidavit has averred that it was
revealed from the statements of the witnesses recorded on
January 4, 1987 that the appellant was the person actually
involved. Apprehending his arrest the appellant applied for

anticipatory bail on January 21, 1987. It appears that on the

same day the appellant (sic police) appears to have made a
statement that there was no proposal at that stage to arrest
the appellant. However, later it was discovered that there
was no trace of the appellant. He was arrested on February 2,

1987 and on the same day he made a statement admitting
these facts. Meanwhile, the proposal to detain the appellant
was placed before the District Magistrate. It is averred by the
District Magistrate that on a careful consideration of the
material on record he was satisfied that it was necessary to
make an order of detention of the appellant under Section

3(2) of the Act and that accordingly on May 28, 1987 he
passed the order of detention. The appellant was taken into
custody on May 30, 1987. He had forwarded the report to
the State Government on the 28th and the government
accorded its approval on the 31st.

12. Even though there was no explanation for the

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delay between February 2, and May 28. 1987 it could not

give rise to a legitimate inference that the subjective
satisfaction arrived at by the District Magistrate was not
genuine or that the grounds were stale or illusory or that

there was no rational connection between the grounds and
the impugned order of detention. There is a plethora of
decisions of this Court as to the effect of unexplained delay in
taking action. These are admirably dealt with in Durga Das

Basu’s Shorter Constitution of India, 8th edn. at p. 154. We
will only notice to a few salient decisions. In Olia Mallick v.
State of West Bengal,
(1974) 1 SCC 594 it was held that
mere delay in making the order was not sufficient to hold

that the District Magistrate must not have been satisfied
about the necessity of the detention order. Since the activities

of the detenu marked him out as a member of a gang
indulging systematically in the cutting of aluminium electric
wire, the District Magistrate could have been well satisfied,

even after the lapse of five months that it was necessary to
pass the detention order to prevent him from acting in a
manner prejudicial to the maintenance of the supply of
electricity. In Golam Hussain v. Commissioner of Police,
(1974) 3 SCR 613, it was held that the credible chain

between the grounds of criminal activity alleged by the
detaining authority and the purpose of detention, is snapped

if there is too long and unexplained an interval between the
offending acts and the order of detention. But no ‘mechanical
test by counting the months of the interval’ was sound. It all
depends on the nature of the acts relied on, grave and

determined or less serious and corrigible, on the length of the
gap, short or long, on the reason for the delay in taking
preventive action, like information of participation being
available only in the course of an investigation. The Court
has to investigate whether the casual connection has been

broken in the circumstances of each case. In Odut Ali Miah v.
State of West Bengal
(1974) 4 SCC 129 where the decision of
the detaining authority was reached after about five months,
Krishna Iyer, J. repelled the contention based on the ground
of delay as a mere ‘weed of straw’ and it was held that the
‘time-lag’ between the dates of the alleged incidents and the
making of the order of detention was not so large that it
could be said that no reasonable person could possibly have

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arrived at the satisfaction which the District Magistrate did

on the basis of the alleged incidents. It follows that the test of
proximity is not a rigid or mechanical test to be blindly
applied by merely counting the number of months between

the offending acts and the order of detention. In Vijay Narain
Singh v. State of Bihar, (1984) 3 SCC 14, one of us, Sen, J.
observed: [SCC p.18 : SCC (Cri) 365, headnote]
“On merits the impugned order cannot be said to

be vitiated because of some of the grounds of
detention being non-existent or irrelevant or too
remote in point of time to furnish a rational nexus
for the subjective satisfaction of the detaining

authority. It is usually from prior events showing
tendencies or inclinations of a man that an

inference can be drawn whether he is likely, in the
future, to act in a manner prejudicial to the
maintenance of public order.”

See also:Gora v. State of West Bengal (1975) 2
SCR 996; Raj Kumar Singh v. State of Bihar & Ors., (1986) 4
SCC 407 and Hemlata Kantilal Shah v. State of Maharashtra,
(1981) 4 SCC 647.” [Emphasis supplied]

15. Even in the present case it is noticed from the

grounds of detention that the detenu was acting as a member

of a gang indulging systematically in the smuggling of

memory cards from Hongkong to Mumbai. In such cases, to

borrow the expression of the Apex Court even though there

was no explanation for the delay caused by the concerned

officials, it would not give rise to legitimate inference that the

subjective satisfaction arrived by the Detaining Authority was

not genuine or that the grounds were stale or illusory or that

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there was no rational connection between the grounds and

the impugned order of detention.

16. The question is : whether the Detaining Authority has

recorded its satisfaction that the nexus between the date of

incident and passing of the detention order was still in

existence. For that, we may usefully refer to the grounds of

detention itself in addition to the reply affidavit filed by the

Detaining Authorityig before this Court. The Detaining

Authority after adverting to all the relevant documents

placed before her along with the proposal to detain Shri

Balwinder Singh (the detenu) in the concluding part of

grounds of detention has categorically mentioned that since

the detenu has engaged himself in such prejudicial activities,

it was imperative that Shri Balwinder Singh should be

detained under the COFEPOSA Act, 1974 with a view to

prevent him from indulging in smuggling activities in future.

The detaining authority has noted that the smuggling

activities in which the detenu indulged were covered by the

provisions of Section 111(l),(m) of the Customs Act, 1962. In

paragraph-15 of the grounds of detention, the Detaining

Authority has then noted that after receipt of the proposal

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and after scanning the proposal and the documents appended

to the proposal, she had applied her mind and arrived at

subjective satisfaction and was satisfied with the nexus

between the date of incident and passing of the detention

order as well as the object of detention of Shri Balwinder

Singh has been maintained.

17. It is well established position that it is not open to the

Court to sit over the subjective satisfaction recorded by the

Detaining Authority as a Court of Appeal. Sufficiency or

adequacy of the material considered by the Detaining

Authority while recording such subjective satisfaction cannot

be the basis to set aside the detention order which is

otherwise valid in all respects. Moreover, once the subjective

satisfaction about the continuation of the nexus between

the date of incident and passing of the detention order

is recorded by the Detaining Authority, assuming that

there is some delay caused in anterior period, which is not

even explained – remained un-explained – that would not

make any difference. For, the delay in issuance of the

detention order, if any, would get subsumed in the subjective

satisfaction recorded by the Detaining Authority that the

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nexus between the date of incident and passing of the

detention order as well as the object of detention has been

maintained. In our opinion, therefore, the argument under

consideration is untenable.

18. Learned APP had placed reliance on another decision

of the Division Bench of this Court in the case of Ashok

Kumar Vs. State of Maharashtra & Ors., reported in 2003

ALL MR (Cri) 1237. Even the said decision restates the

settled legal position that the general rule is that delay

simplicitor in issuance of the detention order does not vitiate

the order, whereas the order would be vitiated if live-link

between the prejudicial activity of the detenu and the

rationale of clamping a detention order on him is snapped.

19. As aforesaid, in the present case, the Detaining

Authority has categorically noted in the detention order that

the live-link has not snapped on the date of passing of the

order dated 23rd December, 2010. Accordingly, the first

ground of challenge will have to be rejected.

20. That takes us to the second ground urged before us

that the detention order suffers from non-application of mind

by the Detaining Authority. The first shade of this argument is

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that the proposal was placed before the Detaining Authority,

which was complete in all respects, on 22nd December, 2010;

and on the same day the Detaining Authority proceeded to

pass the detention order. According to the petitioner it is

noticed from the record that besides the detention order

passed against the detenu in the present case, on the same

day the Detaining Authority passed order against co-accused

Shri Kuldeep Singh.

21. The argument proceeds that it was physically

impossible for the Detaining Authority to wade through the

entire proposal in respect of two separate cases on the same

day and also formulate grounds for detention and pass the

order of detention. The Counsel for the petitioner has placed

reliance on the unreported decision of the Apex Court in the

case of Shri Umesh Chandra Verma Vs. Union of India

and another in Criminal Appeal No.878 of 1985, decided

on December 20, 1985. In that case, the detenu was

interrogated on 13th June, 1985 for almost the whole day.

Thereafter, at 6:00 p.m. on that day he was formally arrested

under Section 104 of the Customs Act. On the same night,

detention order was made by the Joint Secretary of the

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Government of India. The detention order so passed ran into

about 234 pages including the arrest memo prepared at 6:00

p.m. on the same day i.e. on 13th June, 1985. In the fact

situation of that case, the Court observed that the Detaining

Authority could not have possibly applied its mind to the

voluminous documentary evidence which was placed before

him and for that reason alone the order of detention was

quashed.

22. The next decision pressed into service by the Counsel

for the petitioner is a decision of the Division Bench of this

Court in the case of Smt. Kirti Sujit Satam Vs. State of

Maharashtra & Ors. reported in 2008 ALL MR (Cri) 774.

In that case, the Detaining Authority claimed to have perused

almost 1712 pages comprising of 154 documents in a short

time. In the context of that factual position, the Court

observed that it was not possible for the Detaining Authority

to go through the material and apply his mind in such a short

span.

23. In the present case, however, we find that the

proposal of the detenu – Shri Balwinder Singh was consisting

of only 147 pages. Besides, the affidavit of the Detaining

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Authority does not in so many words state that she examined

those documents on the same day and proceeded to

formulate the grounds. The stand taken by the Detaining

Authority on affidavit reads thus :

“……… The Hindi translation of the said documents was sent
by the Sponsoring Authority vide its letter dated 18.11.2010.
Thereafter, I carefully considered the proposal of the
Sponsoring Authority and the relied upon documents and on

22.12.2010, I directed to issue the order of detention against
the detenu by drafting the order of detention and the grounds

of detention and also directed to submit fair copy of the same.
………. ”

24. On bare reading of the above statement, it is not

possible to assume that the Detaining Authority examined

the proposal received on 18.11.2010, which was complete in

all respects, for the first time, only on 22nd December, 2010.

Assuming that the petitioner is justified in contending that

the proposal was considered by the Detaining Authority and

on the very day the Detaining Authority proceeded to

formulate the grounds and passed the detention order, we fail

to understand as to why it was not possible for the Detaining

Authority to wade through the compilation of only 147 pages

– consisting of only 36 documents – so as to formulate the

grounds on the same day and pass the detention order. The

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abovesaid two decisions pressed into service by the

petitioner, therefore, are of no avail to the case on hand.

Even the argument that the Detaining Authority examined

two separate proposals on the same day, cannot be the basis

to doubt the subjective satisfaction of the Detaining

Authority. Firstly, the second proposal was of the co-accused.

Obviously, most of the documents in both the proposals would

be common. Secondly, we fail to understand as to why in the

facts of this case it must be inferred that the Detaining

Authority could not have considered the proposal of co-

accused together on one day.

25. Taking overall view of the matter, in our opinion,

therefore, it is not possible to doubt the subjective

satisfaction recorded by the Detaining Authority much less to

authoritatively hold that the detention order as passed

against Shri Balwinder Singh (the detenu) suffers from the

vice of non-application of mind.

26. That takes us to the other shade of the argument

regarding the ground of non-application of mind. It was

contended that the Detaining Authority has failed to disclose

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in the reply affidavit as to whether the grounds of detention

were formulated by her or by some one else. Moreover,

whether the grounds were formulated before the receipt of

further documents and, if so after receipt of further

documents whether the grounds were revised and reviewed

by the Detaining Authority. The Counsel for the petitioner

placed reliance on the decision in the case of Rajesh

Vashdev Adnani Vs. State of Maharashtra and others.

reported in (2006) 1 Supreme Court Cases (Cri) 61, in

particular paragraphs-8 & 9 thereof which read thus :

“8. From a perusal of the records produced before us,
it appears that the second respondent directed obtaining of

some documents when the proposal for detention of the
detenu was submitted. She also sought for the statement

made by the detenu before the Additional Chief
Metropolitan Magistrate. She further took note of a
purported pre-detention representation made by the detenu
on 18-4-2004. Detention order was passed upon discussion

made in that behalf by her with three officers including Shri
P.S. Goyal, Deputy Director. It further appears that the order
of detention as well as grounds therefor were formulated
and placed before her for approval. It appears that only
small changes were made by some officers.

9. Perusal of the proposal made by the sponsoring
authority and the order of detention passed by the detaining
authority would show that except by substituting word “he”
by “you” no other change was effected.”

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27. In the first place, no specific averment has been

made in the Writ Petition in this behalf. A vague and general

issue has been raised. The Counsel for the petitioner submits

that this contention became available to the petitioner only

after the Detaining Authority filed reply affidavit while

explaining the averments contained in the writ petition. Even

if this contention is to be taken forward, in our opinion, from

the reply affidavit of the Detaining Authority, as filed, it is

amply clear that the Detaining Authority after considering

the proposal of the Sponsoring Authority and examining all

the documents appended to the proposal, drafted the

grounds of detention and issued order of detention against

Shri Balwinder Singh (detenu). The Detaining Authority then

directed her subordinates to submit a fair copy of the

grounds and the detention order. The original file which was

produced before us does contain grounds of detention

formulated by the Detaining Authority. Suffice it to observe

that the argument under consideration canvassed on behalf

of the detenu is only in the nature of surmises and

conjectures. That does not take the matter any further for the

petitioner. Accordingly, the grievance of the petitioner that

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the detention order suffers from non-application of mind by

the Detaining Authority, does not commend to us.

28. That takes us to the next argument of the petitioner

that the goods in question, which have already been seized

from the detenu, were not prohibited goods and, at best, it

would be a case of causing loss to the public exchequer

which can be duly compensated by imposing suitable penalty

on the detenu as precondition for returning the goods to the

detenu. For that, issuance of detention order was unjust and

inappropriate. This argument also does not commend to us.

For, once it is noticed that the Detaining Authority has

adverted to the infraction of Section 111(l),(m) of the

Customs Act on account of acts of commission and omission

of the detenu and recorded her subjective satisfaction that it

was necessary to detain the detenu to prevent him from

indulging in similar prejudicial activities in future, that

subjective satisfaction cannot be lightly brushed aside on the

plea under consideration. The fact remains that the detenu

indulged in smuggling activity which was covered by Section

111(l),(m) of the Act of 1962. Further, we find force in the

argument of the learned APP that even if it is a case of

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WP.2188-11

solitary incident, it is open to the Detaining Authority to

proceed in the matter, if the Detaining Authority is satisfied

that the person is likely to indulge in similar prejudicial

activities in future. Reliance can be usefully placed on the

decision in the case of Kakkovayal Kuhbi Hamja vs. State

of Maharashtra and another, reported in 1993 CRI. L. J.

1078 (in particular paragraphs-18 to 22 thereof); and in the

case of Union of India and another vs. Smt. Chaya

Ghoshal and another, reported in (2005) 10 Supreme

Court Cases 97 (in particular paragraph-23 thereof). In this

view of the matter, the argument of the petitioner under

consideration will have to be stated to be rejected.

29. That takes us to the last contention of the petitioner

that there is unexplained and inordinate delay of about four

months in execution of the detention order. Admittedly, the

detention order was passed on 23rd December, 2010.

However, the detenu was placed under detention and sent to

Nasik Road Central Prison sometime on 23rd April, 2011. In

other words, almost four months time was spent in executing

the detention order against Shri Balwinder Singh.

30. The Sponsoring Authority has filed affidavit before

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WP.2188-11

this Court, in which it has stated that it has no comments to

offer with regard to this ground. Insofar as the Detaining

Authority is concerned, reply can be traced to paragraph-8 of

the affidavit, which reads thus :

“8. With reference to para 5(v) of the petition, I say that
the Order of Detention was issued on 23.12.2010 and was

sent for execution to the Superintendent of Police Taran
Taran, Punjab. Since the same was not executed, reminders

were sent to the Superintendent of Police, Taran Taran on
10.1.2011 and 1.4.2011. However, no reply was received
from the Executing Authority. Thereafter, by letter dated

27.4.2011 the Superintendent of Prison, Nasik Road Central
Prison, Nasik intimated that the detenu was detained on
23.4.2011 and was admitted in the Nasik Road Central
Prison, Nasik on 27.4.2011.”

31. Even if the explanation offered by the Detaining

Authority were to be accepted as it is, it is noticed that the

Detaining Authority after issuance of the detention order

immediately wrote to the Superintendent of Police Taran

Taran, Punjab. Thereafter, the Detaining Authority sent

reminder to the Executing Authority on 10th January, 2011

which was soon after sending the detention order / warrant

for execution. However, no explanation whatsoever is offered

as to what steps were taken by the Executing Authority or for

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WP.2188-11

that matter the Detaining Authority between 10th January,

2011 till 1st April, 2011 and more particularly till 23rd April,

2011 when eventually the detenu came to be arrested. It is

not only a case of unsatisfactory explanation, but, in fact no

explanation whatsoever as to what steps were taken

between 10th January, 2011 till 23rd April, 2011 by the

Executing Authority. Notably, the Superintendent of Police

Taran Taran, Punjab has not filed any affidavit.

32. It is well established position that once the detention

order is passed, all authorities concerned with the execution

thereof have to act with promptness and make continuous

effort or serious attempts to secure the detenu and to serve

the detention order as early as possible. The Apex Court in

the case of P.U. Iqbal vs. Union of India and others,

reported in AIR 1992 SUPREME COURT 1900, in

paragraph-5, has observed thus:-

“5. Even assuming the entire facts as set out in the

counter affidavit are true, it is very clear on the face of this
subsequent affidavit that from 24-11-1989 to 23-4-1990, no
prompt and continuous effort or serious attempt was made
to secure the detenu and serve the impugned order. It is
apparent that the concerned officers particularly, the Circle
Inspector of Police to whom the warrant had been sent for
execution of the order of detention, had shown absolute
callousness and they did not seem to have taken any sincere

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effort with assiduity in executing the warrant. The

Government has made a request to the Chief Judicial
Magistrate to take action u/S. 7(1)(a) only on 14-5-1990
that is after a period of 9 months from the date of the

passing of the detention order.”

It will be useful to also advert to the dictum in

paragraphs-8 & 9 of the same decision, which reads thus:-

“8. There is indeed a plethora of authorities explaining

the purpose and avowed object of preventive detention
in express and explicit language. We think that all those

decisions of this Court on this aspect need not be
recapitulated and recited. But it would be suffice to refer
to the decision of this Court in Ashok Kumar v. Delhi

Administration, (1982) 2 SCC 403 : (AIR 1982 SC 1143,
para wherein the following observation is made:
“Preventive detention is devised to afford protection to
society. The object is not to punish a man for having

done something but to intercept before he does it and to
prevent him from doing.”

9. In view of the above object of the preventive
detention, it becomes very imperative on the part of the
detaining authority as well as the executing authorities
to be very vigilant and keep their eyes skinned but not to

turn a blind eye in securing the detenu and executing the
detention order because any indifferent attitude on the
part of the detaining authority or executing authority
will defeat the very purpose of the preventive action and
turn the detention order as a dead letter and frustrate

the entire proceedings.”

33. Applying the abovesaid principle to the fact situation

of the present case, we have no hesitation in taking the view

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WP.2188-11

that the executing authorities have failed to act with utmost

dispatch and promptness. It appears that there was absolute

callousness in execution of the detention order. Admittedly,

no steps were taken by the executing authorities or the

Sponsoring Authority to proceed against the detenu by

resorting to action under Section 7(1)(b) or 7(1)(a) of the Act,

assuming that the detenu was not traceable. As a matter of

fact, in the replies filed by the Sponsoring Authority or the

Detaining Authority it is not even remotely suggested that

the detention order could not be executed on the detenu

because he was not available and was absconding or avoiding

service thereof. It is not their case that the detenu did not

appear before the criminal court during this period or failed

to comply with any condition of bail. As aforesaid, even if the

detenu was absconding during the relevant period, nothing

prevented the executing authorities or the Sponsoring

Authority to resort to action under Section 7 of the Act to

secure the arrest of the detenu and to execute the detention

order. No steps were taken by the Sponsoring Authority to

cancel the bail operating in favour of the detenu from 22 nd

March, 2010 and more particularly after having found that

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the detention order could not be executed by the executing

agency after January, 2011. In the circumstances, we are

inclined to allow this Writ Petition only on this count. On all

other counts, the Petition ought to fail.

34. Accordingly, Writ Petition is allowed. Rule made

absolute. The impugned detention order bearing

No.PSA-1210/CR-96/SPL-3(A) dated 23rd December, 2010 is

quashed and set aside and the Detaining Authority is directed

to set detenu – Shri Balwinder Singh, at liberty forthwith.

35. At this stage, request was made by the Counsel for

the petitioner to issue operative part of the order as

pronounced in open Court – as transcription of the entire

judgment may take so time – so that the detenu can avail of

the benefit thereof at the earliest. We accede to this request

and direct the Office to issue operative order to the petitioner

forthwith.

      (P. D. KODE, J.)                             (A. M. KHANWILKAR,  J.)




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Vallabhdas Cursondas Natha Turst vs The Municipal Corporation Of … on 11 October, 2011

Bombay High Court
Vallabhdas Cursondas Natha Turst vs The Municipal Corporation Of … on 11 October, 2011
Bench: P. B. Majmudar, R. M. Savant
                                            1                       wp-657-2001

mmj




                                                                                 
                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  ORDINARY ORIGINAL CIVIL JURISDICTION
                          WRIT PETITION NO.657 OF 2001




                                                         
      Vallabhdas Cursondas Natha Turst, a Public               )
      Trust registered under Bombay Public Trust Act,          )
      1950 having their office at Vadgadi House,               )




                                                        
      328-332, Samuel Street, Mandvi, Mumbai 400 009           )..Petitioners

                 Versus




                                               
      1. The Municipal Corporation of greater Mumbai           )
      a body incorporated under provision of Bombay            )
      Municipal Corporation Act, having its office
                               ig                              )
      At Mahapalika Bhavan, Mahapalika Marg,                   )
      Fort, Mumbai 400 001                                     )
                             
      2. The Municipal Commissioner                            )
      having its office at Mahapalika Bhavan,                  )
      Mahapalika Marg, Fort, Mumbai 400 001                    )

      3. The Assistant Engineer (Town Planning)              )
            


      'B' Ward, Central Office, Babula Tank Cross Lane,      )
      Mumbai 400 009                                    )...Respondents
         



      Mr. G.V.Murti with Mr. A.K.Saxena and Mr. Sukhjeet Singh Kohli i/b Ms
      Neeta Gala for the Petitioners





      Mr. A.Y. Sakhare Senior Advocate with Ms P.A.Purandare for the
      Respondents

                                 CORAM : P.B.MAJMUDAR &
                                         R.M. SAVANT, JJ.

DATE : 11th OCTOBER, 2011.

ORAL JUDGMENT (PER SHRI R.M.SAVANT J.) :-

1 By the above Petition filed under Article 226 of the

Constitution of India, the Petitioners inter alia seek directions against

the Respondents to the effect that they be directed to implement the

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2 wp-657-2001

Town Planning Scheme of Bombay City I (Mandvi & Elphinstone

Estate) as finalized and sanctioned by the Government of Maharashtra

in regard to final plot No.136 of Town Planning Scheme of Bombay

City I (Mandvi & Elphinstone Estate). The Petitioners further seek a

relief that the Respondents be directed to hand over to the Petitioners

vacant and peaceful possession of final plot No.136 admeasuring

about 134.7 sq.yards free from all encumbrances and pay

compensation amount of Rs.45,122/- together with interest @ 18% p.a.

from the date of the award till realization within a specified period. The

Petitioners by prayer clause (bb) have sought quashing and setting

aside of the property tax bills issued by the Respondents in respect of

the property bearing Ward No.B-1393(1) and situated at 37-45, Kazi

Sayed Street, Masjid Bunder Road, Mumbai since 1-11-1975 till date.

As the prayers adverted to above discloses the issue as regards

implementation of the Town Planning Scheme in respect of the area in

question.

2 The draft scheme was published on 11-12-1948 under the

then Town Planning Act, by virtue of the powers conferred by the

Section 29 of the said Act. The then Government of Bombay under

Section 29 of Bombay Town Planning Act appointed an Arbitrator. The

Arbitrator Mr. G.J.Desai declared his Award on 31-3-1954 and

forwarded the proposals to the president of the Tribunal for further

action. In terms of the Award of the Arbitrator original plot No.153

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admeasuring 197 sq.yds. was earmarked for road widening and in lieu

thereof the Petitioners were allotted the final plot No.136 admeasuring

134.7 sq.yds The Petitioners were also directed to be paid an amount

of Rs.45,122 as compensation. On the Bombay Town Planning Act

1954 coming into force the said final scheme promulgated under the

Town Planning Act, 1915 was adopted. Thereafter, the Maharashtra

Regional and Town Planning Act, 1966 was promulgated, by virtue of

Section 165 of the said Act, the actions / decisions taken under the old

Town Planning Act, 1954 were saved. The Petitioners were in

possession of the original plot No.153 admeasuring 197 sq.yds.

Towards enforcing the said Town Planning Scheme the Respondents

took possession of the structure standing thereon without allotting the

Final Plot No.136 which was awarded to the Petitioners by the

Arbitrator in his Award as also compensation amount. Thereafter

certain facts transpired which in our view, are not directly germane to

the issue raised in the above Petition.

Suffice it to say, that the tenants of the structure on plot No.

153 had filed a suit against the Respondent Corporation. The said suit

came to be decreed in favour of the Respondent No.1 Corporation

thereby the status of the Respondent No.1 as owners of the property

came to be confirmed.

3 As indicated above, the main substantive relief sought in the

Petition as regards the allotment of final plot no.136 admeasuring 134.7

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4 wp-657-2001

sq.yds. which has been allotted to the Petitioners by virtue of the award

of the arbitrator in the course of implementing the Town Planning

Scheme in question, as also the payment of sum of Rs.45,122/- as

compensation to the Petitioners. The allotment of the said final plot No.

136 has been inordinately delayed though the possession of plot No.

153 owned by the Petitioners has been taken by the Respondent No.1

as long back in the yar 1975. In so far as, the allotment of final plot No.

136 is concerned, the reasons why the same has yet not been allotted

to the Petitioners, has been mentioned in the Affidavit in reply filed on

behalf of the Respondent No.1 by Mr. Sanjay Sambare, Assistant

Engineer. The sum and substance of the reasons is that prior to the

allotment certain steps are required to be taken by the Respondent

No.1 Corporation which includes demarcation etc., This petition was

heard from time to time for final hearing. On an earlier occasion looking

to the delay in allotting final plot No.136 to the Petitioners we had

asked the Learned Senior Counsel appearing for the Respondent No.1

Corporation to fix a schedule or a time frame within which the final plot

No.136 could be allotted to the Petitioners. Pursuant to our directions,

the Learned Senior Counsel has tendered to us the letter dated

11-12-2011 of the Assistant Commissioner ‘B’ Ward, in which letter, the

schedule / time frame within which the final plot No.136 could be

allotted to the Petitioners, has been mentioned. We reproduce the

schedule which has been mentioned in the said letter as under:

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                                           5                       wp-657-2001

                  "(1)        Demarcation of plot affected viz

O.P.No.153 to 158 & 229A F.P.No.136 to 138 for

demarcation this office has already sent reminder
to City Survey office and further this office will
sought co-operation from Ex.Eng.(TP), Ex.Eng.

(DP), Ex.Eng.(T & C) etc.
Approximate time required for the
above work is 60 days.

(2) To issue necessary notices to the

occupants of the buildings of the above plots and
to hear their grievances to scrutinize their
documents etc.
Approximate time required for the
above work is 90 days.

(3) To conduct the meeting with the 27
tenants of the affected buildings.

Approximate time required for the
above work is 60 days.

Due to Diwali & X-Mas vacation this
office may not able to contact the residents of
building. Hence the time required to complete this
task is about Eight months.”

The said letter is taken on record and marked ‘X’ for

identification.

4 Upon perusing the said letter, copy of which was handed

over to the learned Counsel for the Petitioners, the Learned Counsel

for the Petitioners Shri Murti fairly states that though the period of 8

months has been mentioned in the said letter dated 11-10-2011, the

Petitioners would not have any objection if this Court grants further

time to the Respondent No.1 for handing over the said plot No.136. In

view of the said statement made by the Learned counsel for the

Petitioners, in our view, considering that the Petitioners have already

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6 wp-657-2001

waited for more than 25 years for allotment of the said final plot No.

136. It would be just and proper to extend the time mentioned in the

said letter dated 11-10-2011 from 8 months to one year for handing

over the said plot as also the compensation of Rs.45,122 with interest

as per the Award. Accepting the said schedule mentioned in the letter

dated 11-10-2011, we hope and trust that the final plot No.136 would

be handed over to the Petitioners. We direct the Respondent No.1

Corporation to hand over possession of the final plot No.136 latest by

31-10-2012 as also the payment of companesation.

6 In so far as, prayer clause (bb) of the Petition is concerned ,

it is not possible for us to go into the said aspect in this Petition. We,

therefore, deem it appropriate to direct the Petitioners to make a

representation to the Corporation for refund of the property tax that the

Petitioners have paid from the year 1975 to 2001 when the petition was

filed, annexing the relevant documents in support of the said claim

including the decree of the Civil Court as also the tax receipts. On such

representation being received, the Respondent No.1 Corporation to

consider the same and pass appropriate order in accordance with law

as regards the refund claimed by the Petitioners of the property tax

paid by them from 1975 to 2001. In the event, some amount is to be

refunded, the same may be done expeditiously by the Respondent

No.1.


    7          In so far as the amount of Rs.3,67,516 is concerned, for the




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                                             7                       wp-657-2001

period April 2001 to March 2012, i.e. post filing of the above Petition, in

the light of the aforesaid facts, the Corporation may not take steps to

recover the said amount.

8 Rule is accordingly made absolute to the aforesaid extent

with parties to bear their respective costs.

    (R.M.Savant, J.)                               (P.B.Majmudar, J.)




                                               
                             
                            
          
       






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Gully vs Mr.Ranjitsing Sharma on 10 October, 2011

Bombay High Court
Gully vs Mr.Ranjitsing Sharma on 10 October, 2011
Bench: P. B. Majmudar, R. M. Savant
    ssp                                    1                            WP 734  of 2003


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                            
                   ORDINARY ORIGINAL CIVIL JURISDICTION

                        WRIT PETITION NO.734 OF 2003




                                                    
    Pushpalata Gopal Worlikar, 
    Age 45 years, Occu - Household, 
    Residing at Gopal House, Shreeram 




                                                   
    Gully, Worli, Koliwada, 
    Mumbai - 400 025                                        .....Petitioner

          versus




                                          
    1.    Mr.Ranjitsing Sharma, 
                           
          Commissioner of Police, 
          having his office at Office of
          Commissioner of Police, 
                          
          Opp. Mahatma Phule Market, 
          Mumbai - 400 001. 

    2.    Mr.Padwal, 
          Senior Inspector of Police, 
       


          Dadar Police Station, Mumbai. 
    



    3.    Mr.Waghmare, 
          Police Sub Inspector, 
          Dadar Police Station, Mumbai
          Nos.2 and 3 having their Offices at 





          Bhavani Shankar Road, Mumbai - 400 028. 

    4.    Shri Ranglal Jain, 
          Age about 50 years, Occu Business, 





    5.    Smt.(name not known ), wife of 
          Ranglal Jain, Age not known, Occu Household, 

    6.    Devendra, son of Ranglal Jain, 
          Age about 30 years, Occu Business, 
          Nos.4 to 6 occupying portion of 
          Shop No.1 In house No.460, Ramchandra
          Poshu Chawl, Bhagat Gully, Worli, Koliwada, 




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     ssp                                           2                                  WP 734  of 2003


             Mumbai - 400 025. 




                                                                                         
    7.       State of Maharashtra,
             Home Department, Mantralaya, 




                                                                
             Mumbai - 400 032.                                           ..... Respondents

    Mr.V.S.Paradkar, for the petitioner. 
    Mr.G.W.Mattos, AGP, for respondent Nos.1 to 3 and 7. 




                                                               
    Mr.S.S.Redekar, for respondent Nos.4 and 6.

                             CORAM:  P.B.MAJMUDAR &
                                     R.M.SAVANT, JJ. 
                                 ig            th
                                DATE:       10    OCTOBER, 2011
                                                               

    ORAL JUDGMENT ( PER P.B.MAJMUDAR, J. ) : -
                               

1. By way of this petition, the petitioner has prayed for

appropriate writ directions orders under Article 226 of the Constitution of

India directing respondent Nos.1 to 3 to remove the respondent Nos.4 to 6

from the possession of disputed shop being Shop No.1 in house No.460,

Ramchandra Poshu Chawl, Bhagat Gully, Worli, Koliwada, Mumbai – 400

025, which premises according to the petitioner belongs to him. It is the

case of the petitioner that she had initially filed a suit for getting

possession of the said premises, in which a decree for possession was

passed in favour of the petitioner. It is further the case of the petitioner

that the petitioner got the decree executed and entered into possession,

but subsequently, after some time, the respondent No.4 again entered the

premises by trespassing the same with the alleged help of police constables

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ssp 3 WP 734 of 2003

and in that view of the matter, this petition has been filed in which police

authorities have been joined as respondents and prayer for possession is

made so far as respondent No.4 is concerned.

2. The above petition has been resisted on behalf of the police

department. An affidavit-in-reply has been filed by Mr.Ramesh Mahadev

Waghmare at page 49. In para Nos.3 and 4 it is averred as under : –

“3. I say that I was attached to the Dadar Police Station
and was working thereat as Police Sub-Inspector for the

period September 2002 till 22nd December, 2004. I say that
as per records of the Worli Koliwada Police Chowki, Beat
No.1, the possession in respect of the writ premises was

taken in execution of a decree passed in RE Suit No.
1377/4520/1993 on 29th October, 2002 as more
particularly elucidated in the Station Diary Entry Nos.6 and

7. I say that as per the said records, possession of the writ
premises was taken from the respondent No.4 and one

Vinod Tailors, under police protection. I crave leave to refer
to and reply upon the extract of the Station Diary as and

when produced.

4. I say that on 10th January, 2003, at about 8.30 p.m.,
the respondent No.4 approached the Worli Koliwada Beat
Chowki, with a complaint against the petitioner. I say that

at that time, Head Constable Ashok Bajirao Bhonsle, Police
Constable Jagdish Nivruti Kamble were on duty. The
respondent No.4 alleged that the petitioner had allegedly
assaulted him and had caused damage to his shop premises.

Accordingly, the said police constables accompanied the

respondent No.4 to the site whereat the petitioner was
found. I say that the said Constables thereafter, brought the
petitioner and the respondent No.4 to the Dadar Police
Station at about 9.30 p.m. I say that I was the duty Officer
at the said time. I say that the petitioner and the
respondent No.4 both claimed to be in possession of the
premises. It is pertinent to note that at that point of time,
the petitioner had not informed me that the possessionof

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ssp 4 WP 734 of 2003

the said premises was taken in execution on 29-10-2002

under police protection. I say that neither me nor the said
Constables were aware of the said fact. I say that I called
upon both the parties to produce the documents to

substantiate their rival claims. The petitioner in no
uncertain terms told me that she would produce the
documents before me only after consulting her lawyer.
However, she omitted and failed to do so.

3. The learned counsel for the respondents states that the

decree was in connection with the Shop No.1 and he is in possession of

Shop No.2 qua which there is no decree. The learned counsel for the

petitioner submitted that the entire shop is one and only wooden partition

was made. In our view, such a highly disputed question of fact and that

too involving a private party cannot be examined in our writ jurisdiction

under Article 226 of the Constitution of India. The learned counsel for

the respondents submitted that in fact the original decree was executed

with the help of the police and it is not correct that the respondent No.4

entered into the possession with the help of police, for which he has relied

upon the affidavit-in-reply. Considering the above facts and the fact that

even respondent No.4 has alleged to have trespassed upon the property

again after the execution of the decree, the appropriate remedy would be

to file a substantive civil suit to get back possession in accordance with

law. The learned counsel for the petitioner has placed reliance on a

decision of the Supreme Court in the case of Shalini Shyam Shetty and

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ssp 5 WP 734 of 2003

Anr. V/s. Rajendra Shankar Patil1. In fact, the said decision does not

come to the aid of the petitioner in any manner. The relevant

observations of the Supreme Court are reproduced hereinunder :

15. The facts of the case have been discussed in detail in
order to show that in a pure dispute of landlord and tenant

between private parties, a writ petition was entertained by
the High Court. It did not pass any order on the writ
petition, inter alia, on the ground that there are concurrent
findings of fact. If the findings have not been concurrent,

the High Court might have interfered. In any event, High
Court did not hold that a writ petition is not maintainable

in a dispute between landlord and tenant in which both are
private parties and the dispute is of civil nature.

16……………….

72. Therefore, a private person becomes amenable to writ
jurisdiction only if he is connected with a statutory
authority or only if he/she discharges any official duty.

73. In the instant case, none of the above features are

present, even then a writ petition was filed in a pure
dispute between landlord and tenant and where the only

respondent is the plaintiff landlord. Therefore, High Court
erred by entertaining the writ petition. However, the
petition was dismissed on merits by a rather cryptic order.

4. Considering the aforesaid ruling of the Supreme Court, a

dispute between the petitioner and the respondent No.4 cannot be

adjudicated in a petition filed under Article 226 of the Constitution of

India. Even though, the respondent No.4 has alleged to have trespassed

upon the property in question, the remedy would be to file civil suit for

obtaining possession. The petitioner could have filed a complaint for

1 2010 (6) Mh.L.J. 661

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ssp 6 WP 734 of 2003

illegal trespass before the police, instead she has rushed to this Court. It

is not a case where the authorities are in any way instrumental in getting

the respondent No.4 into the premises. In view of the same, it is

obviously a property dispute between the petitioner and the respondent

No.4 and the respondent No.4 even if illegally having taken possession,

the writ jurisdiction of this Court cannot be invoked. If such petitions are

entertained, then even a private dispute of landlord and tenant will be

brought before this Court. The learned counsel for the petitioner, having

realized this difficulty, submits that the petitioner would like to file

appropriate proceedings before the Civil Court. If any such proceedings

are filed, it is for the appropriate Court to consider whether such

proceedings are required to be expedited in view of the fact that the above

petition was being prosecuted by the petitioner in this Court since 2003.

5. In the light of what is stated above, the writ petition is

dismissed. Rule discharged.

          ( R.M.SAVANT, J. )                                 ( P.B.MAJMUDAR, J. )





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Hetal Enterprises vs New India Assurance Co. Ltd on 7 October, 2011

Bombay High Court
Hetal Enterprises vs New India Assurance Co. Ltd on 7 October, 2011
Bench: Anoop V.Mohta
                                            1                                sj-70-10.sxw


    dgm




                                                                               
             IN THE  HIGH COURT OF JUDICATURE AT BOMBAY




                                                       
                  ORDINARY ORIGINAL CIVIL JURISDICTION

                SUMMONS FOR JUDGMENT NO. 70  OF  2010
                                IN




                                                      
                   SUMMARY SUIT NO.2640    OF  2009




                                           
    Hetal Enterprises                                  ....   Plaintiffs
          vs               
    New India Assurance Co. Ltd.                                ....    Defendants
                          
    Mr. P.L. Mahadik  for the Plaintiffs.

    Mr. A.S. Vidyarthi for the Defendants. 
          


                                    CORAM:   ANOOP V. MOHTA, J.

DATE : October 07, 2011

ORAL JUDGMENT:

The matter was adjourned thrice for settlement, but it could not

be settled. The Defendants were willing to pay principal amount

only, however, the Plaintiffs’ insistence was also on reasonable interest

on the same. Therefore, by consent heard finally.

2 The Defendants though served not filed any reply to the

summons for judgment.

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                                                2                                 sj-70-10.sxw




                                                                                   
    3      As per the averments made in the plaint, the Plaintiffs used to 




                                                           

supply various kinds of stationery goods to the Regional Office of

Defendants and always obtained due acknowledgment of delivery of

goods on the delivery chalan/bill/invoice ranging from 16.12.2005 to

19.12.2005. As per the invoice/agreement, the grace period was of 7

days from the date of delivery of goods failing which the Plaintiffs

entitled to claim interest at 19.5% on the principal amount. There is

no serious dispute with regard to the receipt of the goods and the

payment so raised and/or of any quality and/or quantity.

4 Even otherwise as per Article 18 of the Limitation Act,

acknowledgment for liability itself is sufficient. It is not necessary that

it should be accompanied by a promise to pay either expressly or even

by implication. [Food Corporation of India vs. Assam State

Cooperative Marketing & Consumer Federation Ltd. And ors.1 ] It

is also necessary to note that such letters and correspondences read

with the conduct of the parties which always form part of a chain

correspondences which are on record, and as not disputed, such a

Summary Suit is maintainable and so also the summons for

1 (2004) 12 SCC 360

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3 sj-70-10.sxw

judgment. (Sections 35 and 39 of Evidence Act). The suit therefore

based upon such acknowledgments and receipts is maintainable. [See

Full Bench judgment in Jyotsna K. Valia vs. T.S. Parekh & Co.2]

5 The learned counsel appearing for the Defendants has raised

basically an objection that the Suit is barred by the limitation in view

of the admitted first delivery chalan/bill/invoice dated 16.12.2005.

The Suit was filed on 5.01.2009. As per Article 15 of Limitation Act, a

Suit for the price of goods sold and delivered need to be filed after the

expiry of a fixed period of grace. In the present case is 7 days.

Therefore, the commencement of the limitation will be after 7 days

from the date of the bill/delivery chalan. There is no dispute that the

limitation period of three years would have expired during the

Christmas vacation which was definitely upto 31 December 2008. The

Suit, therefore, as filed on the court opening day i.e. 5.01.2009, in the

present facts and circumstances, is within limitation.

6 Therefore, considering the uncontroverted averments made,

there is no reason not to accept the case of the Plaintiffs to grant

summons for judgment as prayed. There is no denial or defence to

2 2007 (3) Bom.C.R. 772

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4 sj-70-10.sxw

the averments and the documents of the Plaintiffs.

7 In so far as the interest part is concerned, though the interest as

per the invoice is claimed at 19.5% as not paid within 7 days from the

date of delivery of goods, however, the learned counsel appearing for

the Plaintiffs fairly suggested to pass appropriate order about the rate

of interest. Therefore, I am inclined to restrict the same at 9% per

annum instead of 19.5% as mentioned in the statement of claims.

That will be also the future interest till realisation.

8 Resultantly, the summons for judgment is disposed of

accordingly. Decree be drawn accordingly. There shall be no order as

to costs.

(ANOOP V. MOHTA, J.)

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Shri V.S.Deshpande vs The State Of Maharashtra on 5 October, 2011

Bombay High Court
Shri V.S.Deshpande vs The State Of Maharashtra on 5 October, 2011
Bench: A. H. Joshi, A. R. Joshi
                               1                       CRI. CP NO.1/2009

          IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                     BENCH AT AURANGABAD




                                                              
           CRIMINAL CONTEMPT PETITION NO.1 of 2009 
          (With Crimial Application Nos.4066/2011, 
                   1912/2011 and 3146/2011)    




                                     
          Shri V.S.Deshpande, 5th 
          Joint Civil Judge,




                                    
          (S.D.), Ahmednagar.
                                          ...PETITIONER
          VERSUS




                          
     1.   The State of Maharashtra.
      
     2.

      
                   
          Sayyad Yunus Sayyad Amin, Age 42  yrs., Occ. 
          Fitter;

     3.   Sau.Rahematbee Sayyad Amin, Age 60 yrs. Occ. 
                  
          Household;

     4.   Sau.Shaikh Julekha alias Nasim, age 45 yrs. 
          Occ. Household;
      


     5.   Sayyad Khalik Sayyad Amin, Age 40 yrs. Occ. 
   



          Fitter;

     6.   Sayyad Ainul Sayyad Amin, Age 37 yrs. Occ. 
          Plumber.





          Nos. 2, 3, 5 and 6 r/o Nangre Galli, House No.
          7344, Ahmednagar.

          No.4 r/o  Zendi Gate, Ahmednagar.





                                   ...RESPONDENTS

                            ...
     Shri V.N.Damle, Adv.( appointed) for petitioner.
     Mr.N.R.Shaikh, APP for respondent No.1 State.
     Mr.J.H.Deshmukh, Adv., for respondent no.2.
     Mr.M.D.Shinde, Adv., for respondent nos. 2 to 6.
                            ...




                                      ::: Downloaded on - 09/06/2013 17:49:13 :::
                                          2                    CRI. CP NO.1/2009



                       CORAM:  A.H.JOSHI & A.R.JOSHI, JJ.     

***
Date of reserving the

judgment: 29/9/2011

Date of pronouncing
judgment: 5/10/2011

***

JUDGMENT : (Per A.H.Joshi, J.)

1. Rule. Rule is made returnable forthwith.
Heard by Consent.

2. This Contempt proceedings are initiated

on the Reference made to this Court by 5th Joint
Civil Judge, Senior Division, Ahmednagar.

3. In the proceedings for grant of

succession certificate, present contemnors have
made a statement on record that the Hon’ble High
Court had demanded succession certificate in the

appeal pending before High Court.

The contemnors were not able to prove
that any such order was passed.

4. The trial Court, by passing order below
Exh.1, called the explanation from the applicants
therein as to why action should not be taken
against them for making such false and
irresponsible statement.

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3 CRI. CP NO.1/2009

5. The applicants therein filed written

explanation in which objectionable matter was
incorporated. The statements, which were

objectionable, are quoted in the reference.

6. This Court had taken cognizance and

ordered that notice of show cause be issued
against the contemnors.

7. The contemnors remained present,

intermittently. Sayyad Yunus Sayyad Amin, one
amongst them, was absent inspite of execution of

bond and even failed to apply for exemption of
personal attendance. Therefore, non bailable
warrant of arrest was issued. However, he

appeared on the returnable date. Thereafter, the
contemnor Sayyad Yunus Sayyad Amin was committed

to jail.

8. Advocate Mr.J.H.Deshmukh appeared, applied
for his release on bail and also expressed
willingness on behalf of said contemnor to tender
unconditional apology, which is accordingly

tendered.

9. Other contemnors represented by Advocate
Mr.M.D.Shinde, have pleaded ignorance as regards
their act of contempt on the ground that the power
of attorney holder had dealt with the matter and

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4 CRI. CP NO.1/2009

they had no knowledge, in fact, of whatever had
transpired. They pleaded that they had already

tendered apology and pleaded for leniency, apart
from being excused.

10. We would like to refer to the text
contained in reply to the notice of show cause of

contempt given by the trial Court, wherein the
contemnors had written objectionable matter.

Relevant portion appearing in Reference order

reads as follows:

“1. A. In collusion with Rodga Masjid
Trust and with biased mind the court has

issued show cause notice.

B. Said show cause notice defamed
applicants. The applicants are intending

to initiate proceedings against this
court.

C. The show cause notice is illegal.
Court is called upon to prove as to how
any court can pass written order

demanding Succession Certificate.

D) Court (this Court) doesn’t know the
procedure for issuance of certificate”.

The contemnors have also made contemptuous and

intimidating statements as under:

“2. A. The Court shall not initiate any
action against the applicants i.e. other
heirs and power of attorney holder.

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5 CRI. CP NO.1/2009

B. Take the note that immediately after
receipt of permission a case for
defamation will be lodged against this

Court.

C. …If it is so, then this Court shall

prove it strictly.”

11. Upon perusal of language used in reply we
notice that from any point of view and
perspective, the language consists of a threat

which is a contempt on the face of the Court.

12.

Considering the apology now tendered
before this Court by all the contemnors, we are

satisfied that the Respondent nos.:-

(3) Sau.Rahematbee Sayyad Amin,

(4) Sau.Shaikh Julekha alias Nasim,

(5) Sayyad Khalik Sayyad Amin, and
(6) Sayyad Ainul Sayyad Amin,

have expressed contemptuous text. However, they
are rustic and are ignorant of consequences of
whatever they have expressed and signed. Though

they are liable for being convicted for their act,
the act is not proved to be “wilful act of
contempt”. These contemnors can, therefore, be
cautioned and the notice can be dropped.

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6 CRI. CP NO.1/2009

13. Sayyad Yunus Sayyad Amin turns out to be
main contemnor. He has now exhibited repentance.

14. Upon due consideration of the manner in

which Sayyad Yunus has behaved, his apology
cannot be accepted as heart felt repentance. His
explanation does not consist of any explanation or

justification for what he has behaved. He is
content with simple plea of error and apology.
Whenever he had appeared in past, his conduct was

seen to be stiff, stubborn and unmindful towards

whatever he had done. He does not deny that he
was power of attorney and does not plead that he

was under any mistaken belief for what he had
done. He seems to use the device of “apology” as
a ladder for rescue, from being committed to

prison.

15. Act of contempt by Sayyad Yunus Sayyad
Amin thus reveals and is proved to be act of

wilful contempt and any expression, heartfelt
remorse or apology has not emerged. An apology
tendered to evade or repell consequence has to be
looked upon as a pretence.

16. Therefore, Sayyad Yunus Sayyad Amin is
liable to be convicted for contempt, of trial
Court.

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7 CRI. CP NO.1/2009

17. We had also heard learned Advocate
Mr.J.H.Deshmukh for Sayyad Yunus Sayyad Amin on

the point of sentence, if Sayyad Yunus Sayyad Amin
is convicted eventually.

18. Learned Advocate had urged for leniency
on the ground that :-

(a) Sayyad Yunus Sayyad Amin being a
rustic person and that he may have

behaved what he has, due to being

misguided and intimidated.

(b) Behaviour of Sayyad Yunus Sayyad
Amin states that no sane person can
behave what Sayyad Yunus Sayyad Amin

has done. His expressions are those of an
intemperate and an intimidated or

misguided soul. He must be and is rustic
and even below the level of idiocy of a

simpleton. Even lay persons know the
fall-outs of contempt of authority. Lack
of sane behaviour alone can lead to such
behaviour. True it is that the intention

will have to be inferred, but the rustic
background of Sayyad Yunus Sayyad Amin
will have to be borne in mind.

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8 CRI. CP NO.1/2009

(c) He, therefore, deserves leniency.
Whatever he has undergone is far more a

punishment and chastisement-than what a
guilty person would deserve.

19. We partly accept the plea in defence to
sentence, since patience, wisdom and prudence are

becoming a rare specie of human mind, as we
experience in day-today life. We are, therefore,
satisfied that the rustic background of Sayyad

Yunus Sayyad Amin, which was the cause of extreme

behaviour, is the cause of leniency as well.

20. We direct that sentence to Sayyad Yunus
Sayyad Amin-respondent no.2 be equal to his period
of actual imprisonment. He be released forthwith.

Criminal Application Nos.4066/2011, 1912/2011

and 3146/2011 are disposed.

(A.R.JOSHI, J.) (A.H.JOSHI,J.)

AGP/1-09cp

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Mangal vs The State Of Maharashtra on 5 October, 2011

Bombay High Court
Mangal vs The State Of Maharashtra on 5 October, 2011
Bench: U.V. Bakre
     HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR
     /home/lichade/judgments/UVB/apeal242.08+.odt                                                      1/18


                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  NAGPUR BENCH AT NAGPUR.




                                                                                                      
                                  CRIMINAL APPEAL NO. 242 OF 2008
                                              WITH
                                  CRIMINAL APPEAL NO. 312 OF 2008




                                                                      
                                              WITH
                                  CRIMINAL APPEAL NO. 795 OF 2008

     CRI. APPEAL NO. 242/08 :




                                                                     
                Mangal s/o Tularam Warkhade,
                aged about 31 yrs., Occp. Nil,
                r/o Lohara, Tah. & Distt. 
                Chandrapur.       ::                                          APPELLANT




                                                     
                -: Versus :-



                Chandrapur.
                            
                The State of Maharashtra,
                through P.S.O., City Police Station,
                                                              ::                   RESPONDENT
                        ............................................................................
                           
                           Mr. A. H. Lohiya, Advocate for the appellant.
                       Mr. P. D. Kothari, A.P.P. for the respondent-State.
                        ...........................................................................

     CRI. APPEAL NO. 312/08 :
      


          1. Mahadeo s/o Jalpat Todase
   



             aged about 35 yrs., Occp. Labour,
             r/o Chandrapur,
             Tah. & Distt. Chandrapur.

          2. Pramod s/o Mahadeo There,





             aged about 20 yrs., Occp.  Labour
             r/o Morwa, Tah. & Distt. Chandrapur

          3. Ajay s/o Kanhoji Raut,
             aged about 20 yrs., Occp. Driving,
             r/o Morwa, 





             Tah. & Distt. Chandrapur.      ::                                APPELLANTS

                        -: Versus :-

                The State of Maharashtra,
                through P.S.O., City Police Station,
                Chandrapur.                                   ::                   RESPONDENT
                        ............................................................................
                           Mr. R. M. Daga, Advocate for the appellants.
                       Mr. P. D. Kothari, A.P.P. for the respondent-State.
                        ...........................................................................




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     CRI. APPEAL NO. 795/08 :

                Chunnilal s/o Tulshiram Borkar,




                                                                                                               
                aged about 45 yrs., Occp. Labour,
                r/o Nehru Nagar, Chandrapur,
                Tah. & Distt. Chandrapur,




                                                                              
                Presently at District Prison, 
                Chandrapur.         ::                                                 APPELLANT

                -: Versus :-




                                                                             
                The State of Maharashtra,
                through P.S.O., City Police Station,
                Chandrapur.                                        ::                    RESPONDENT
             .............................................................................................................
            Mr. A. H. Lohiya, Advocate (appointed through Court) for the appellant.




                                                        
                             Mr. P. D. Kothari, A.P.P. for the respondent-State.
                              ...........................................................................

     CORAM : 
                              ig                 : U. V. BAKRE, J.
     DATE OF RESERVING JUDGMENT         : 12TH SEPT., 2011
     DATE OF PRONOUNCING JUDGMENT :  05TH OCT., 2011
                            
                                                      J U D G M E N T 

These appeals, being disposed of by common judgment, are

arising out of the judgment and order dated 15/5/2008, passed by the

learned Additional Sessions Judge, Chandrapur in Sessions Trial No.

18/2006. The appellants of Criminal Appeal No. 312/08 were accused Nos.

1, 2 and 3; the appellant of Criminal Appeal No. 242/08 was accused No. 4;

whereas the appellant of Criminal Appeal No. 795/08 was accused No.5.

The appellants shall hereinafter be referred to as the accused persons as per

their numbers in the Sessions Trial.

2. Accused Nos. 1 to 5 were tried for offence punishable under Section

395 read with Section 397 of the Indian Penal Code (for short, I.P.C.) and

Section 3 read with Section 25 of the Arms Act, 1959.

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3. Vide the impugned judgment and order, accused Nos. 1 to 5 are

acquitted of the offence under Section 3 read with Section 25 of the Arms Act.

They are held guilty of the offence punishable under Section 395 read with

Section 397 of I.P.C. and convicted and sentenced to undergo rigorous

imprisonment for seven years and to pay fine of Rs.2,000/- each in default to

undergo rigorous imprisonment for further period of one year.

4. Case of the prosecution, in short, is as follows :-

(i) Mr. Shridharan Nair was working as Deputy Executive
ig Engineer with Maharashtra State Electricity Transmission
Company and was posted at Ballarshah whereas Mr.
Shamrao Balki was also working in the same department

as Assistant Engineer and posted at Mul.

(ii) On 29/7/2005, Mr. Nair received the sum of
Rs.6,64,190/- from the Division office, Ballarshah towards

payment of salary to staff members. Out of the above

amount, he handed over Rs.1,24,410/- to one Mr. Shukla,
the Assistant Engineer of Sub-station, Gadchiroli and also
distributed Rs.11,400/- towards the payment of salary of

two employees of his office.

(iii) Mr. Nair handed over an amount of Rs.1,04,630/- to Mr.
Balki for distributing the salary of employees of the office

at Mul and kept Rs.4,31.350/- in a VIP suitcase of brown
colour. Mr. Balki kept the amount given to him by Mr.
Nair in a bag which was with him.

(iv) Thereafter Mr. Nair, Mr. Balki, the driver of Mr. Nair by
name Bhujade, the helper to Mr. Nair by name Shende,
Mr. Askar and Smt. Bharti sat in the jeep bearing
No. MZV-4500 in order to go to Chandrapur. The suitcase

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containing the amount along with two other brief cases
which also contained money, were kept in the rear portion

of the jeep which was driven by Mr. Balki. Near Prasanna
Petrol Pump, Smt. Bharti and Mr. Askar got down from the

jeep and the jeep proceeded further.

(v) When the jeep was passing through bypass and had

reached near railway over-bridge, at about 5.10 p.m., a
Tata Sumo jeep overtook the jeep No. MZV-4500 and
hence the said jeep had to stop.

(vi) About 6-7 persons were in that Tata Sumo, out of which
ig two armed with country made gun and knife alighted and
one of them who had the gun went near Mr. Balki and the
other with knife went near Mr. Nair. Weapons were

pointed out to both of them. Thereafter, two more persons
from the Tata Sumo got down, went to the rear side of the
jeep No. MZV-4500, collected the suitcase and brief cases,

put them in Tata Sumo and all of them went away
towards Chandrapur.

(vii) Mr. Nair and Mr. Balki came with the jeep to Ramnagar
police station. They had noted the registration number of

the Tata Sumo to be MH-15/R-4680. Mr. Nair lodged the
report.

(viii) Crime was registered. The Tata Sumo along with driver

Mr. Mangal Turankar was nabbed. An amount of
Rs.6,000/- was found in that Tata Sumo, which was
attached. Mr. Mangal pointed out the spot in jungle
where the suitcase was partly burnt and from that spot,
the labels showing the name of the bank and partly burnt
suitcase was attached.

(ix) Accused No.5 is history sheeter. When his photograph was

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shown to Mangal, he identified accused No.5 as one of the
culprits. The cellphone of accused No.5 was traced and

from that clue, accused Nos. 1 and 3 were arrested on
17/8/2005 whereas accused Nos. 2 and 4 were arrested

on 19/8/2005.

(x) Cash of Rs.22,000/- on one occasion and cash of

Rs.22,325/- on subsequent occasion was recovered at the
instance of accused No.1. A Television set was also seized
from his house. The country made gun and Rs.43,300/-
were recovered at the instance of accused No.2. The cash

of Rs.35,000/- was recovered at the instance of accused
ig No.3. The cash of Rs.54,000/- was recovered at the
instance of accused No.4. Mr. Mangal Turankar was
released under Section 169 of the Code of Criminal

Procedure. The Test Identification Parade of accused Nos.
1 to 4 was conducted, in which they were identified by the
witnesses.

(xi) Accused No.5 was arrested on 31/12/2005 and the

suitcase containing rubber stamps of the office of Mr. Nair,
identity card, etc. were recovered at his instance. Test
Identification Parade of accused No.5 was held and he was

also identified by the witnesses.

(xii) It was revealed that two more persons namely: Mr.
Mahesh Golapalli @ Gurle and Sanu Badwal had also

taken part in the dacoity. They could not be traced.

(xiii) Charge-sheet came to be filed against accused Nos. 1 to 5.

The two persons who could not be nabbed were shown as
absconders.

5. The prosecution examined altogether 18 witnesses. They may be

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categorized as under:-

                        (A)          EYE WITNESSES  :-




                                                                                          
                              (i)       P.W.-2 Mr. Shridharan Nair, who lodged report.
                              (ii)      P.W.-3 Shamrao Balki.




                                                                  
                              (iii)     P.W.-11 Mangal Turankar.


                        (B)          PANCH WITNESSES  :-




                                                                 
                              (i)       P.W.-1   Bhaskar   Sahare,   for   spot   panchanama   (Exh.

37); spot panchanama (Exh.40); panchanama of
seizure of Tata Sumo jeep and cash (Exh.41); and

disclosure statement and recovery panchanama in
respect of Rs.54,000/- at the instance of accused No.4
ig (Exhts. 42 and 43).

(ii) P.W.-4 Ajit Vishwas for disclosure statement of
accused No.1 and panchanama of recovery of
Rs.22,000/- at his instance (Exhs. 66 and 67).

(iii) P.W.-5 Rajkumar Meshram, second panch witness for

exhibits 66 and 67.

(iv) P.W.-7 Laxman Kalar, for recovery of suitcase

containing rubber stamps at the instance of accused
No.5; and for recovery of country made gun, some
cash and clothes at the instance of accused No.2.

(v) P.W.-18, Sanjay Ghate, for recovery of cash and
country made gun at the instance of accused Nos. 1
and 3.

                        (C)          WITNESSES FOR PROVING NEXUS  :-
                              (i)       P.W.-6 Sanjiv Gothe, with whom absconding accused 
                                        Sonu Badwal had deposited Rs.25,000/-.




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(ii) P.W.-8 Shriram Upganlawar with whom accused No.3
had placed order for gold coins by handing over

demand draft of Rs.28,100/-.

(iii) P.W.-9 Akshay Andhalkar, who sold T.V. Set.

(iv) P.W.-10 Namdeo Nimbhare, at whose work place (a

farm house), accused Nos. 1 to 5 used to come and
use telephone. P.W.-10 has turned hostile.

(v) P.W.-13 Mahadeo There, the father of accused No.2,

who produced Rs.8,000/-.

(vi) P.W.-14 Gajanan Chandankhede, who prepared the
sketch of the spot of occurrence.

(vii) P.W.-16 Vijay Mohurle, a police constable who carried
the country made gun to Ballistic Expert.

(D) EXECUTIVE MAGISTRATE :-

P.W.-12 Tulshidas Gedekar, who conducted the Test
Identification Parade in respect of accused Nos. 1 to 4.

                        (E)          POLICE WITNESSES (INVESTIGATION )  :-
                              (i)       P.W.-15 Chandraprakash Mehra, P.S.I., who registered 

the offence upon receipt of written report of Mr. Nair.

(ii) P.W.-17 Krushnara Adewar, who carried out further
investigation.

6. The case of the accused persons was of denial simplicitor. They did

not examine any witness in defence.

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7. Upon consideration of the entire evidence on record, the learned

Trial Judge found that there was no sanction under Section 39 of the Arms

Act procured by the prosecution. Hence, the accused persons were acquitted

of the offence under Section 3 read with Section 25 of the Arms Act. The trial

Judge has further held that accused Nos. 1 to 5 have been identified by the

eye witnesses, to have participated in the dacoity and they were armed with

country made gun, knife or kukri which are deadly weapons. Accused Nos. 1

to 5 have, therefore, been convicted and sentenced as stated earlier.

8. Heard arguments. Learned Advocate Shri A. H. Lohiya argued on

behalf of accused Nos. 3 and 5 whereas learned Advocate Shri R. M. Daga

argued on behalf of accused Nos. 2, 3 and 4. Learned A.P.P. Shri P. D.

Kothari argued on behalf of the State.

9. Perused the record and proceedings.

10. Let us first see if any recovery establishing nexus of the accused

with the crime is proved.

11. The learned trial Judge has not discussed the evidence of any of

the witnesses examined by the prosecution for proving recoveries at the

instance of the accused persons and other recoveries. In paragraph 39 of the

impugned judgment, the trial Judge has observed thus :-

“…For a moment let us accept that the discovery in respect of cash
amount at the behest of accused Nos. 1, 2, 3 and 4 is not
established in real sense as contemplated under Section 27 of the
Evidence Act. Nevertheless, it remains fact that in all total cash of

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Rs.2 lakhs and more is at least seized during the investigation.
But, it is curious enough that no witness is coming forward to

claim this cash except the office of Mr. Nair and Mr. Balki as per
application Exh.12 which was allowed by my predecessor. When

these amounts were seized from various houses or from witness
like father of accused No.2 and witness Mr. Sanjay Ghote
(P.W.-6), it is the prosecution version that absconding accused Mr.
Sonu Badwal had deposited Rs.25,000/- with Sanjiv Ghote and he

produced the same which was seized under panchanama Exh.75.
However, this witness had also not claimed that it was his
amount. These circumstances clearly show that the amounts at

least seized during investigation were the booty of dacoity…”

12. First of all, the recoveries at the instance of the accused persons

are not proved beyond reasonable doubt. Secondly, the numbers of the

currency notes which were robbed by the dacoits are not known and hence

they cannot be identified. The fact that the amount recovered being,

cumulatively, big and cannot be expected to have been planted, coupled with

the fact that the accused persons have not claimed that amount to be

belonging to them, may be one of the circumstances against the accused

persons. But the same cannot be, in itself, held to be sufficient to prove the

guilt of the accused persons.

13. P.W.-6 Sanjiv Gothe has spoken about Sanu Badwal, who is

absconding and who has not been tried by the trial Court. The alleged

accused Sanu Badwal had no opportunity to cross examine P.W.-6. The

evidence of P.W.-6 is not at all relevant as against accused Nos. 1 to 5.

Therefore, attachment of amount of Rs.25,000/- handed over by P.W.-6 to the

police, by saying that it was given to him by Sanu Badwal, has nothing to do

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with accused Nos. 1 to 5, since the nexus of that money with them has not

been proved.

14. P.W.-1, allegedly taken as one of the panch witnesses for the

panchanamas Exhts. 40, 41, 42, and 43, being a regular witness for

Chandrapur police for the last 5-7 years, signing panchanamas drawn by the

police officers of Chandrapur police station, every year in about 10 cases, he

is not at all reliable panch witness for disclosure and consequent recovery

under section 27 of the Indian Evidence Act. P.W.-17, the Investigating

Officer has admitted in his cross-examination that P.W.-1 is a stock panch

witness. P.W.-18 Sanjay Ghate was the second panch witness for the

panchanama (Exh.40) regarding the spot shown by Mangal Turankar and

attachment of partly burnt pieces of paper, lock plate and hook of burnt

suitcase. But, P.W.-18 is totally silent on this panchanama. The second

panch witness taken for panchanama (Exh.41) of attachment of Rs.6,000/-

from Tata Sumo jeep and for the disclosure/recovery panchanama (Exhts 42

and 43) of Rs.54,000/-, allegedly at the instance of accused No.4, have not

been examined. Hence, the recovery of cash of Rs.6,000/- and Rs.54,000/-,

as the booty of dacoity, is not proved.

15. P.W.-4 does not say that accused No. 1 had made a disclosure

that he concealed the amount. P.W.-4 says that accused No.1 stated that he

could take out amount from his house and then took out Rs.22,000/- from the

wooden cot of his house. Thus, accused No.1 is not proved to be the author

of concealment. In his cross-examination, P.W.-4 has stated that he did not

visit the police station, Ramnagar and that the accused after taking them to

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his house made the disclosure. He says that disclosure statement as well as

recovery panchanama were prepared at the house of the accused. The above

is contrary to the panchanama and disclosure statement (Exhts. 66 and 67).

The above is also not in accordance with section 27 of the Evidence Act.

Because of the above evidence of P.W.-4, as an afterthought,the second panch

witness (P.W.-5) was examined by the prosecution. P.W.-4 was not declared

hostile. His evidence cannot be discarded just like that. Since the evidence of

P.W.-5 is contrary to that of P.W.-4, even P.W.-5 cannot be relied upon.

Hence, the said amount of Rs. 22,000/- cannot be held as the booty of

dacoity.

16. Neither P.W.-2 nor P.W.-3 has stated that he had with him any

suitcase containing papers, rubber stamps, etc. Even otherwise, such suitcase

was recovered from an open public place accessible to all on 3/1/2006 which

is after more than five months. The evidence of P.W.-7 does not prove

recovery of the said suitcase, etc. at the instance of any of the accused

persons. His evidence also does not prove that cash of Rs.43,300/- was

recovered at the instance of accused No.2 or that cash of Rs.10,000/- was

recovered at the instance of accused No.3. The case of the prosecution,in this

regard, has only remained on papers.

17. It is not known as to in what manner the draft of Rs.28,100/-

given by accused No.3 to Gold Quest International Private Ltd. for purchase of

gold coin is relevant to the present case. It cannot be understood as to why

the police asked P.W.-8 to get the said amount of Rs.28,100/- invested by

accused No.3 transferred to his name and as to why after such transfer, the

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said amount was attached from P.W.-8. The evidence of P.W.-8 cannot prove

nexus of the said amount of Rs.28,100/- with the booty of dacoity.

18. The evidence of P.W.-9 reveals that one television set was

purchased on 30/7/2005 from the shop where he was working. The

relevancy of said television set with the present crime is not proved.

19. P.W.-13 has denied that his son, accused No.2, had handed over

the amount of Rs.8,000/- to him and that accused No.2 took out the said

amount and handed it over to the police. Hence the recovery of Rs. 8,000/-,

allegedly at the instance of the accused No. 2, is not proved.

20. Lastly, the evidence of P.W.-18, is not of such worth which can

prove that cash of Rs.1,000/- was recovered at the instance of accused No.2

or that cash of Rs.20,000/- was recovered at the instance of accused No. 3 or

that cash of Rs.10,000/- was recovered at the instance of accused No.1.

21. The evidence of the investigating officer (P.W.-17) is also not of

the nature as could prove various disclosures allegedly made by accused

persons under Section 27 of the Evidence Act and consequent recovery at the

instance of each of the accused persons.

22. P.W.-2 and P.W.-3 have not mentioned the numbers on the

currency notes, which were with them, for the purpose of identification of the

cash recovered by the police vis-a-vis the cash looted by dacoits, though it was

possible to get the series nos. and serial nos. from the bank.

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23. In the circumstances above, the case of the prosecution rests

solely on the eye witnesses namely P.W.-2, P.W.-3 and P.W.-11.

24. According to the First Information Report prepared on the basis

of written report lodged by P.W.-2, the amount of Rs.5,39,780/- was kept in

brown coloured VIP suitcase. The denominations of currency notes are also

mentioned. But, in his deposition, P.W.-2 says that Mr. Balki was carrying an

amount of Rs.1,04,630/- given by him to Balki and an amount of

Rs.4,31,350/- was kept in brown suitcase. Even the total of Rs.4,31,350/-

and Rs.1,04,630/- is Rs.5,35,980/- and not Rs.5,39,780/-. In the report as

well as in the deposition, P.W.-2 has stated that he had received

Rs.6,64,190/- from the Division Office. He has stated that he gave

Rs.1,24,410/- to Shukla; Rs.11,400/- to two employees and Rs.1,04,630/-

to Balki. If the above was true, the remainder with P.W.-2 had to be

Rs.4,23,750/-. Though P.W.-3, in his deposition says that he was given an

amount of Rs. 1,04.630/- by P.W.-1, however he has been confronted with his

police statement wherein this fact is not mentioned.

25. There is variance in the testimony of P.W.-2, P.W.-3 and P.W.-11

regarding the fact as to how many dacoits had alighted from the jeep and

how many were inside the jeep. There is also variance on the facts as to what

exactly happened and in what manner.

26. Though P.W.-2, P.W.-3 and P.W.-11 say that they had identified

accused Nos. 1 to 4 in an Identification Parade, however, none of them has

stated in his deposition as to which of the accused Nos. 1 to 4 did what. All

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have deposed by saying that one did this and other did that and at the end

they have made a general statement that they identified accused Nos. 1 to 4,

in Identification Parade.

27. None of the witnesses says that accused No. 5 was identified by

him in Identification Parade. P.W.-2 and P.W.-3 have not identified accused

No.5 in the Court also.

28. P.W.-11, after he was recalled on 17/3/2008, has deposed that

accused No.5 had engaged his vehicle on the day of incident and had

removed the ignition key when his vehicle was halted near Junona Naka.

P.W.-11 has stated that it was accused No.5, who had lastly handed over Rs.

6,000/- to him. However, in his cross-examination, P.W.-11 has stated that

the news was published in the daily news paper that accused No.5 is

absconding and that his photograph was also published. It is quite possible

that on the basis of photograph of accused No.5 published in the newspaper

that P.W.-11 has identified accused No.5, in the Court. P.W.-11 has further

stated that he knows accused No.5 by his name. If that be so, there had to be

no difficulty for P.W.-11 to state on 4/7/2007 as to what all acts were done

by accused No.5, by referring to his name. P.W.-11 has not done so. As far as

accused Nos. 2 and 4 are concerned, he has referred to them specifically as

accused Nos. 2 and 4 only when they had initially boarded his vehicle along

with the third person. P.W.-11 has not referred to these accused persons

specifically by their numbers, thereafter.

29. In terms of the procedure mentioned in the Criminal Manual for

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holding identification parades, the following is a very important step and the

same is :-

“If there is only one accused person to be identified, there

should be at least half a dozen persons placed in the parade. If
two accused persons are to be identified, then there should be
about 10 or 12 persons in the parade. Not more than two
accused should be placed in any single identification parade; but

the Executive Magistrate/Honorary Magistrate should see that
they are persons of more or less the same physical appearance,
and approximately of the same age, as the person to be

identified. It is desirable that innocent persons to be mixed
should be different for each such parade.”

The evidence of P.W.-12, the Naib Tahsildar, reveals that all the

four accused persons were asked to stand in a line along with only eight

dummies and witnesses were called to identify them in single identification

parade. For this reason itself, the test identification parade loses its value

and cannot inspire confidence.

30. In his cross-examination, P.W.-2 has stated that at the time of

incident, he had seen only 3 dacoits and two out of those three had concealed

their faces by means of cloth. He has stated that the dacoits who had caused

injury to him and pointed a country pistol at Balki had covered their face by

means of cloth. At the end, P.W.-2 has stated that on the spot, three dacoits

had covered their partial face by means of cloth. The question arises as to

how P.W.-2 could identify accused Nos. 1 to 4 during the identification

parade. P.W.-2 has stated that he had not identified accused Chunnilal

(accused No.5) in the identification parade.

31. P.W.-3 has made some improvement. He does not say that three

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persons had covered their face with cloth. P.W.-3 says that two persons had

come near him and one had pointed out pistol at his chest and the other had

pointed a knife on his abdomen. He has stated in the cross-examination that

the dacoits who were standing by his side had concealed their entire face by

means of cloth except the eyes. He then corrected himself by saying that his

face was only partially covered by cloth.

32. P.W.-11 has made further improvement in the case as he does

not at all say that any of the dacoits had covered his face either partially or

completely, except the eyes, by means of cloth. P.W.-11, in fact, is the person

who had carried the dacoits in his Tata Sumo jeep from beginning till end and

was arrested initially as one of the accused persons but subsequently was

released under Section 169 of the Code of Criminal Procedure and then he

was made a witness. The evidence of such a witness cannot be wholly relied

upon since he is likely to speak that which is wanted by the Investigating

agency, which discharged him as an accused.

33. At page No.1 of his deposition, P.W.-11 has stated that accused

Nos.2 and 4 and the accused not present before the Court had boarded his

vehicle. This was stated by P.W.-11 on 4/7/2007, before recess. But, after

recess when his examination-in-chief resumed, he changed his version by

saying that accused Nos. 1 and 3 had boarded his vehicle from Bengali Camp.

He has stated that after he was taken to police station along with his vehicle,

he was interrogated and for initial half an hour, he did not disclose truth to

the police and told them lies. The above facts also weaken the testimony of

P.W.-11.

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34. The two eye-witnesses namely Bhujade and Shende have not

been examined and hence adverse inference is bound to be drawn as against

the prosecution.

35. Learned A.P.P. has relied upon the following citations :-

(a) Ankush Maruti Shinde Vs. State of Maharashtra

– (2009) 6 S.C.C. 667.

Proposition :-

“Object of TI parade is (i) to enable witnesses to satisfy
themselves that the person whom they suspect is really the

one who was seen by them committing the offence; and

(ii) to satisfy investigating authorities that suspect is the
ig real person whom witnesses had seen in connection with
said occurrence.”

(b) Pravin Vs. State of Madhya Pradesh – (2008) 16 S.C.C.

166.

Proposition :-

“Where there is recovery of crime articles and no
explanation is given by accused as to the possession of

gun, a bag which belonged to a witness as well as huge
sum of money, this lends support to fair investigation.”

(c) Ram Babu Vs. State of U.P. – AIR 2010 S.C. 2143

Proposition :-

“Purpose of Test Identification Parade is to test and

strengthen trustworthiness of substantive evidence in
Court. Evidence with regard to T. I. Parade is used for
corroboration.”

36. There can be no dispute about the principles laid down in the

above citations, in the facts and circumstances of those cases. In the present

case, though there is recovery of huge amount and other articles like

television, money paid through demand draft, etc., and of the weapons,

however, such recoveries are not believed by the trial Court and this Court

also, after considering the evidence on record, has not believed the same. As

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far as the identification of accused persons is concerned, the accused persons

were not known previously to the witnesses and the case rests on the Test

Identification Parade only. The T.I. Parade as already stated above, does not

inspire confidence.

37. In all the circumstances above, I am of the view that the accused

persons are entitled for benefit of doubt. The impugned judgment and order

therefore warrants interference. Accused Nos. 1 to 5 are entitled for

acquittal, on benefit of doubt.

38.

                              
                        In the result, 
                             
                        (i)       The appeals are partly allowed.

                        (ii)      The   conviction   and   sentence   of   accused   Nos.   1   to   5   is 
                                  quashed and set aside.
      

                        (iii)     Accused   Nos.   1  to  5   are   all   given   benefit   of   doubt   and 

acquitted of the offence under Section 395 read with

Section 397 of I.P.C.

(iv) The bail bonds of accused Nos. 1 to 4 and of their sureties
are cancelled.

(v) Accused No.5 Chunnilal Borkar shall be released
forthwith, if he is not required in any other case.

(vi) The rest of the dictum pertaining to muddemal articles,
mentioned in paras (4) and (5) of the impugned order, is
maintained.

JUDGE

wwl

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