The State Of Maharashtra vs Kishor on 22 July, 2011

Bombay High Court
The State Of Maharashtra vs Kishor on 22 July, 2011
Bench: R. M. Savant
       wp222.11.odt                         1


                   THE HIGH COURT OF JUDICATURE AT BOMBAY
                            NAGPUR BENCH, NAGPUR




                                                                               
                              WRIT PETITION NO.222 OF 2011.




                                                       
       PETITIONERS:      1.  The State of Maharashtra,
                                         Department of Higher and Technical




                                                      
                                         Education, through its Secretary,
                                         Mantralaya Mumbai.

                                    2. The Director,




                                         
                                        Directorate of Technical Education
                                        Maharashtra State, 3,  Mahapalika 
                         
                                        Marg,P.Box No.1967,
                                        Mumbai - 400001.
                        
                                    3. The Joint Director,
                                        Technical Eduction Directorate,
                                        Regional Office, Sadar, Nagpur.
      


                                    4. The Principal,
                                        Government Polytechnic,
   



                                        Indala Parisar, Gadchiroli,
                                       Tq. And Distt.Gadchiroli.





                                       ..VERSUS..

       RESPONDENT:       Kishor s/o Devidas Jambhulkar,
                                  Aged about 29 yeas, Occu: Service,
                                  R/o Govt.Polytechnic Complex,





                                  Quarter No.Prajakta-4, Gadchiroli,
                                  Tq. And Distt.Gadchiroli.

                             WRIT PETITION NO.223 OF 2011.


       PETITIONERS:      1.  The State of Maharashtra,
                                         Department of Higher and Technical
                                         Education, through its Secretary,
                                         Mantralaya Mumbai.


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                                        2. The Director,
                                            Directorate of Technical Education




                                                                                   
                                            Maharashtra State, 3,  Mahapalika 
                                            Marg,P.Box No.1967,




                                                           
                                            Mumbai - 400001.

                                        3. The Joint Director,
                                            Technical Eduction Directorate,




                                                          
                                            Regional Office, Sadar, Nagpur.

                                        4. The Principal,
                                            Government Polytechnic,




                                             
                                            Indala Parisar, Gadchiroli,
                                           Tq. And Distt.Gadchiroli.
                              ig           ..VERSUS..
                            
           RESPONDENT:        Moreshwar s/o Ghatu Yerewar,
                              Aged about 24 years, Occu: Service,
                              R/o M.I.D.C.Kodgal, Po.Pardi,Tq.
                              and Distt.Gadchiroli.
      
   



                                       WRIT PETITION NO.224 OF 2011.





           PETITIONERS:      1.  The State of Maharashtra,
                                             Department of Higher and Technical
                                             Education, through its Secretary,
                                             Mantralaya Mumbai.





                                        2. The Director,
                                            Directorate of Technical Education
                                            Maharashtra State, 3,  Mahapalika 
                                            Marg,P.Box No.1967,
                                            Mumbai - 400001.

                                        3. The Joint Director,
                                            Technical Eduction Directorate,
                                            Regional Office, Sadar, Nagpur.



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                                  4. The Principal,
                                      Government Polytechnic,
                                      Indala Parisar, Gadchiroli,




                                                                             
                                     Tq. And Distt.Gadchiroli.




                                                     
                                     ..VERSUS..

     RESPONDENT:       Devidas s/o Keshao Sonule,
                                Aged about 32 years, Occu: Service,




                                                    
                                R/o Ranmudza, Gadchiroli, Tq. and
                                Distt.Gadchiroli.

                      WRIT PETITION NO.225 OF 2011.




                                       
                   
                       
     PETITIONERS:      1.  The State of Maharashtra,
                                       Department of Higher and Technical
                                       Education, through its Secretary,
                      
                                       Mantralaya Mumbai.

                                  2. The Director,
                                      Directorate of Technical Education
      


                                      Maharashtra State, 3,  Mahapalika 
                                      Marg,P.Box No.1967,
   



                                      Mumbai - 400001.

                                  3. The Joint Director,





                                      Technical Eduction Directorate,
                                      Regional Office, Sadar, Nagpur.

                                  4. The Principal,
                                      Government Polytechnic,





                                      Indala Parisar, Gadchiroli,
                                     Tq. And Distt.Gadchiroli.

                                     ..VERSUS..

     RESPONDENT:        Suresh s/o Ganpat Sahare,
                                 Aged about 37 years, Occu: Service,
                                 R/o Govt.Polytechnic Complex,
                                "Prajakta-I,Gadchiroli, Tq. and Distt.
                                 Gadchiroli.


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                               WRIT PETITION NO.226 OF 2011.




                                                                                
        PETITIONERS:      1.  The State of Maharashtra,




                                                        
                                          Department of Higher and Technical
                                          Education, through its Secretary,
                                          Mantralaya Mumbai.




                                                       
                                     2. The Director,
                                         Directorate of Technical Education
                                         Maharashtra State, 3,  Mahapalika 
                                         Marg,P.Box No.1967,




                                          
                                         Mumbai - 400001.
                           
                                     3. The Joint Director,
                                         Technical Eduction Directorate,
                                         Regional Office, Sadar, Nagpur.
                          
                                     4. The Principal,
                                         Government Polytechnic,
                                         Indala Parisar, Gadchiroli,
      


                                        Tq. And Distt.Gadchiroli.
   



                                        ..VERSUS..

        RESPONDENT:       Rajesh s/o Devaji Govardhan,





                                   Aged about 26 years, Occu: Service,
                                   R/o Govt.Polytechnic College,
                                   Indala Parisar, Gadchiroli, Tq. and
                                   Distt.Gadchiroli.





                           WRIT PETITION NO.227 OF 2011.


        PETITIONERS:      1.  The State of Maharashtra,
                                          Department of Higher and Technical
                                          Education, through its Secretary,
                                          Mantralaya Mumbai.

                                     2. The Director,
                                         Directorate of Technical Education


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                                               Maharashtra State, 3,  Mahapalika 
                                               Marg,P.Box No.1967,
                                               Mumbai - 400001.




                                                                                                                           
                                     3. The Joint Director,




                                                                                        
                                         Technical Eduction Directorate,
                                         Regional Office, Sadar, Nagpur.

                                     4. The Principal,




                                                                                       
                                         Government Polytechnic,
                                         Indala Parisar, Gadchiroli,
                                        Tq. And Distt.Gadchiroli.




                                                                  
                                                          ..VERSUS..
                                     
        RESPONDENT:       Wasudeo s/o Ganpat Gedam,
                                   Aged about 37 yeas, Occu: Service,
                                   R/o C/o Bhagwan Gedam, Govt.
                                    
                                   Polytechnic College, Indala Parisar,
                                   Gadchiroli, Tq. and Distt.Gadchiroli.

        ....................................................................................................................................
      


         Mr.A.D.Sonak, Addl.Govt.Pleader for the petitioners.
         Mr.F.G.Isaac, Advocate for the respondents.
   



        ....................................................................................................................................
          
                                                                          CORAM :  R.M.SAVANT, J.

DATED : 22nd July, 2011.

ORAL JUDGMENT.

1. Rule, made returnable forthwith and heard, with the

consent of the parties.

2. The above petitions involve identical facts and

common issues and are, therefore, heard and disposed of

together.

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3 The above petition and the accompanying Writ

Petitions take exception to the Judgment and Orders passed by

the Industrial Court in the complaint filed by each of the

respondents in the above petitions, who are working with the

petitioners. Though separate judgment is delivered in each of the

complaints filed by the respondent, all the judgment and orders

are dated 16th July, 2010.

4.

Shorn of unnecessary details, a few facts can be stated

thus –

The respondent in each of the above petitions is the

workman working with the petitioners. It is the case of the

respondents that they have been working with the petitioners

since the year 1999 on daily wages. It is further their case that

they have been paid daily wages less than their entitlement.

5. The respondent in Writ Petition No.222 of 2011 was

working as a Filter Operator and he has been working

continuously as such till 16/12/1996. It is his case that though he

has been working for whole of the month, he has been shown

working only for 20 days. The payment was also made to him on

such basis and it was seen to it that the monthly wages do not

exceed Rs.1760/-. It was the case of the respondent that the

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petitioners were showing artificial break in every month with an

ulterior motive so as not to give continuity. It was further the case

of the respondent that the work done by him was of a permanent

nature and the practice of giving a break and also continuing him

on daily wages was adopted so as not to go give him the benefits

of permanency and regularization. The respondent along with the

respondents in companion petitions, filed complaints invoking

Item No.6 and 9 of Schedule IV of the Maharashtra Recognition of

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

6. The said complaints were resisted by the petitioners

and preliminary objections of the petitioners, who are respondents

in the said complaints, were that the respondent no.4 –

Polytechnic in question run by the respondent no.1 was not an

Industry and the complainants i.e. the respondents in the above

petitions were not workmen. It was denied that the respondents

were appointed as a Water Filter Operator. It was further denied

that the respondents were appointed on daily wages. According to

the petitioners, the respondents were appointed as and when work

was available. It was further denied that the respondents have

worked for 240 days in a calendar year. It was lastly denied that

work was of a permanent nature and yet the respondents were

kept on daily wages with a view to deny them the benefits.

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7. The Industrial Court on the basis of the pleadings of the

parties, inter alia, framed the following issues and has answered

them as follows –

ISSUES FINDINGS.

1. Whether the establishment/department
where the complainants work is an Industry ?… Yes.

2. Do the complainants prove that they are
working continuously as claimed ? …. …. Yes.

3. Do the complainants prove that the
respondents have engaged in the unfair
labour practice under Item 6 and 9 as alleged?.. Yes.

4. Whether the complainants are entitled to

the reliefs as prayed for ? …. .. As
per final order.

8. It is pertinent to note that though the issue as regards;

whether the establishment/department wherein the respondents

were working is an Industry, was framed and answered in the

affirmative. Significantly, no findings have been recorded in

support of the said answer. The impugned judgment and order

discloses that the findings have been recorded only in respect of

Issue Nos.2, 3 and 4. However, in so far as Issue no.1 is

concerned, though the issue is answered in the affirmative, one

does not find any findings in support of the said answer. Since the

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said issue goes to the root of the matter and since there have been

no findings recorded in respect of the said issue, though the said

issue is answered in the affirmative, in my view, the impugned

Judgment and Order dated 16/7/2010 is required to be set aside

and the matter is required to be relegated back to the Industrial

Court for a de novo consideration. The learned counsel appearing

for the Respondents in the above petitions does not dispute the

aforesaid position.

9. In the above petitions the petitioners have also sought

to rely upon certain material which was not before the Industrial

Court, which documents are inter alia the following –

i) A Chart showing the sanctioned post in

the Polytechnic,

ii) The Notification showing the sanctioned

Post filled in by the petitioners.

The respondents/workmen have also filed their

affidavit-in-reply. They also seek to rely upon material which was

not produced before the Industrial Court when it decided the said

complaint. The said material is inter alia, the chart showing the

vacancy position at the relevant time.

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10. Both the learned counsel i.e. the learned Additional

Government Pleader appearing for the petitioners and Shri

F.G.Issac, the learned counsel appearing for the respondent-

workman in each of the above petitions are ad idem that the

parties to be given an opportunity to lead further evidence in court

in support of the respective case. Hence, the following directions.

(i) The impugned Judgment and Order dated
16/7/2010 passed by the Industrial Court, which is the

subject-matter in each of the above petitions, is
quashed and set aside and the matter is relegated back

to the Industrial Court for a de novo consideration.

(ii) The complainant i.e. the respondent in each of the

above petitions would be permitted to amend the
complaint, if he so deems fit so as to incorporate any
additional contentions, which he seeks to place on

record. If such amendment application is moved and
allowed, the petitioners herein would be entitled to file
their additional written statement dealing with the said

case of the complainants.

(iii) The parties would be allowed to lead further
evidence in view of the contentious issue involved in
the above complaints as regards the claim of
permanency and regularization claimed by the
respondents in the above petitions.

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(iv) Needless to say that the documents, if any,

which they seek to file, be proved in accordance with
law.

(v) On remand, the Industrial Court to hear and decide

the respective complaints within six months of the first
appearance of the parties before it.

(vi) Parties to appear before the Industrial Court on
17/8/2011.

(vii) In the interregnum and till the decision of the
complaints, no precipitative action by way of removal

should be taken against the respondents unless for

disciplinary reasons.

Rule is accordingly made absolute in the aforesaid

terms with parties to bear their respective costs.

JUDGE

chute

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Divisional Forest Officer vs Shri Ganiram on 21 July, 2011

Bombay High Court
Divisional Forest Officer vs Shri Ganiram on 21 July, 2011
Bench: R. M. Savant
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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             NAGPUR BENCH, NAGPUR




                                                               
      WRIT PETITION NOS.     979/2011, 980/2011, 981/2011, 982/2011,
                                                                     
                                      983/2011, 984/2011, 985/2011 & 986/2011




                                                              
     -----------------------------------------------------------------------------------------------------

WRIT PETITION NO.979/2011

PETITIONERS :- 1. Divisional Forest Officer,

Gondia Division, Gondia,
ig Tahsil & District : Gondia.

2. Range Forest Officer,
Gondia Range, Gondia,

Tahsil & District : Gondia.

…VERSUS…

RESPONDENT :- Shri Ganiram S/o Jyotiram Kewat,

R/o & Post-Mundipar,
Tahsil & District: Gondia.

WITH

WRIT PETITION NO.980/2011

PETITIONERS :- 1. Divisional Forest Officer,
Gondia Division, Gondia,
Tahsil & District : Gondia.

2. Range Forest Officer,
Gondia Range, Gondia,
Tahsil & District : Gondia.

…VERSUS…

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     RESPONDENT :-          Shri Munna Alias Vijay S/o Bhaiyalal 
                            Shiwankar,
                            R/o Civil Lines, Gondia,




                                             
                            Tahsil & District: Gondia.

                                    WITH




                                            
                        WRIT PETITION NO.981/2011

PETITIONERS :- 1. Divisional Forest Officer,
Gondia Division, Gondia,

Tahsil & District : Gondia.

ig 2. Range Forest Officer,
Gondia Range, Gondia,
Tahsil & District : Gondia.

…VERSUS…

RESPONDENT :- Shri Radheshyam S/o Dulichand Rahangdale,
R/o Suryatola,

Tahsil & District: Gondia.

WITH

WRIT PETITION NO.982/2011
PETITIONERS :- 1. Divisional Forest Officer,

Gondia Division, Gondia,
Tahsil & District : Gondia.

2. Range Forest Officer,
Gondia Range, Gondia,

Tahsil & District : Gondia.

…VERSUS…

RESPONDENT :- Shri Karu S/o Shyamlal Choudhary,
R/o Bhanpur, Post-Dongargaon,
Tahsil & District: Gondia.

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                                    WITH

                        WRIT PETITION NO.983/2011




                                             

PETITIONERS :- 1. Divisional Forest Officer,
Gondia Division, Gondia,
Tahsil & District : Gondia.

2. Range Forest Officer,
Gondia Range, Gondia,
Tahsil & District : Gondia.

…VERSUS…

RESPONDENT :-

ig Shri Babulal S/o Keshorao Dhabale,
R/o Kudwa, Tahsil Gondia,
Tahsil & District: Gondia.

WITH

WRIT PETITION NO.984/2011

PETITIONERS :- 1. State of Maharashtra through,
Deputy Conservator of Forests,

Gondia Division, Gondia,

2. The Range Forest Officer,
Gondia Range, Gondia,
Tq. and Dist. Gondia.

…VERSUS…

RESPONDENT :- Shri Santosh S/o Puranlal Sahare,
Aged about 36 years,
R/o Laxmi Nagar, Gondia.

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      2107wp979.11.odt                                                          4/10




                                                                     
                                    WITH

                        WRIT PETITION NO.985/2011




                                             

PETITIONERS :- 1. Divisional Forest Officer,
Gondia Division, Gondia,
Tahsil & District : Gondia.

2. Range Forest Officer,
Gondia Range, Gondia,
Tahsil & District : Gondia.

…VERSUS…

RESPONDENT :-

ig Shri Zanaklal S/o Buddhu Banote,
R/o Bhanpur, Post-Dongargaon,
Tahsil & District: Gondia.

WITH

WRIT PETITION NO.986/2011

PETITIONERS :- 1. Divisional Forest Officer,
Gondia Division, Gondia,
Tahsil & District : Gondia.

2. Range Forest Officer,
Gondia Range, Gondia,
Tahsil & District : Gondia.

…VERSUS…

RESPONDENT :- Shri Gorelal S/o Fulichand Choudhary,
R/o Ramnagar, Gondia,
Tahsil & District: Gondia.

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—————————————————————————————————–

Shri A. D. Sonak & Ms T. Khan, learned A.G.Ps.for the petitioners.

Shri N. N. Mothghare, learned counsel for the respondents.

—————————————————————————————————–

CORAM : R. M. SAVANT J.





                                                               
                                                   DATED  : 21.07.2011 




                                               
     O R A L    J U D G M E N T



     1)
                         

Rule with the consent of the parties made returnable forthwith and

heard.

2) The above Writ Petitions take exception to the judgments and

orders passed by the Industrial Court, Bhandara, by which the complaints

filed by the respondent in each of the above petitions came to be allowed

and the declaration came to be issued that the petitioners herein have

engaged in unfair labour practice covered under Items 5, 6 and 9 of

Schedule IV of the Maharashtra Recognition of Trade Unions and

Prevention of Unfair Labour Practices Act, 1971 (M.R.T.U. & P.U.L.P. Act,

1979). The Industrial Court has issued a direction to regularize the

services of the complainants by forwarding a proposal to that effect as per

Government Resolution dated 30/01/1996. A further direction was

issued to extend the benefit of permanency to the complainants.

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      2107wp979.11.odt                                                                      6/10




                                                                                 
     3)      Shorn of unnecessary details, the factual matrix of the case can be 

     stated thus. 




                                                         

The respondent in each of the above petitions claimed to be

working with the Forest Department i.e. the petitioner above named from

the year 1990 on daily wage basis. It appears that the State Government

to ameliorate the conditions of the persons, who were working on daily

wages took a policy decision to regularize their services. Pursuant to

which the State Government issued a Government Resolution Dated

30/01/1996 inter alia governing the regularization of services of such

daily wagers. In terms of the said resolution, the cut off date fixed was 1 st

November, 1994 and the daily wagers, who had worked for a period of

240 days in the minimum every year in the preceding five years, were to

be given the benefit of regularization. The respondent in the above

petitions filed Complaint ULP 75/2007 (subject matter of Writ Petition

No.781/2011) invoking Items 5, 6 and 9 of Schedule IV of the M.R.T.U. &

P.U.L.P. Act, 1971. The substantive relief sought in the said Complaint was

that the respondent was seeking regularization of his services and to grant

him benefit of permanency with the back wages and continuity of service

in terms of the said Government Resolution dated 30/01/1996. Similar

complaints were filed by the respondents in the other petitions.



     4)      The parties went to trial.  During the course of the trial, since the 




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issue was as regards whether the respondent-workman had completed

240 days of service in each of the preceding five years, the respondent

was directed to take inspection of the muster rolls and prepare a chart in

respect of the number of days that he had worked in the preceding five

years. Accordingly, inspection was afforded to the respondent on the basis

which a Chart was prepared in respect of each of the respondents in the

above writ petitions, which was proved in evidence and came to be

marked as Exhibit-32.

5) The said chart was signed on behalf of the petitioners herein by

one Ashwinikumar Thakkar, who was then working as Range Forest

Officer. In so far as the petitioners are concerned, they also sought to

produce muster rolls in respect of each of the respondent-complainant in

support of their case that each of the respondent-complainant had not

worked for a period of 240 days in each of the preceding five years prior

to the cut off date. However, since the said muster rolls were not proved

by the petitioners in accordance with the provisions of the Evidence Act,

the same was not accepted.

6) The Industrial Court relying upon Exhibit-32 filed on behalf of the

respondent recorded a finding that each of the respondents in the above

petitions had worked for a period of 240 days in each of the preceding

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five years prior to the cut off date. In so far as the muster rolls produced

by the petitioners are concerned, the Industrial Court did not deem it fit

to take it into consideration on the ground that they did not cover the

entire period. The said finding of the Industrial Court finds place in

paragraph No.11 of the impugned judgment and order.

7) Having heard the learned counsel for the parties, in my view, the

impugned judgment and orders passed in each of the above petitions are

required to be quashed and set aside and the matters are required to be

remanded back to the Industrial Court for a de novo consideration.

8) The issue in the complaint was as regards the entitlement of the

respondent-workman to the benefits of the State Government Resolution

dated 30/01/1996 indubitably the said benefits can only be available to a

daily wager, who has worked for a period of 240 days every year in the

preceding five years prior to the cut off date i.e. 1st November, 1994. No

doubt, the statement at Exhibit-32 produced by the respondent has been

proved by the process known to law and was therefore exhibited as

Exhibit-32. However, the Industrial Court could not have brushed aside

the material produced on behalf of the petitioners by stating that the said

material does not relate to the entire period. The Industrial Court thereby

failed to appreciate the case of the petitioners that the respondents-

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workmen were not working for a period of five years preceding the cut off

date. Hence, it was incumbent on the Industrial Court to permit the

petitioners to lead evidence in that behalf, as the same went to the very

root of the matter in so far as the case of the respective parties were

concerned. In not doing so and merely relying upon Exhibit-32, the

Industrial Court has shut itself from material which could be said to be

relevant for the purposes of adjudication of the issue that was involved in

the said complaint. In that view of the matter, the judgment and orders

subject matter of the each of the above petitions as indicated above are

required to be quashed and set aside and accordingly are quashed and set

aside and the following directions are issued.

i) The petitioners would be entitled to produce the muster rolls and

such other material in their possession in support of their case that

the respondents-complainants in each of the above petitions have

not worked for a period of 240 days in a year for the preceding five

years.

ii) The petitioners would be entitled to prove the said documents by

the procedure prescribed under the Indian Evidence Act.

iii) The respondents-complainants would be entitled to cross-examine

the witness of the petitioners through whom the said documents

would be got proved by the petitioners.

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      2107wp979.11.odt                                                                     10/10




                                                                                 
     iv)      The   Industrial   Court   would   thereupon   consider   the   material   on 

record as also the pleadings and thereafter adjudicate upon the

complaint. The respondent would also at liberty to produce further

material, if they so be in fit.

v) The parties to appear before the Industrial Court on 17th August,

2011. The Industrial Court thereafter to dispose of each of the

complaints within a period of four months.

vi) The person, who has signed the said document at Exhibit-32, i.e.

Ashwinikumar Thakkar has filed an affidavit in the instant petition

stating the circumstances in which he has signed the said

document, in my view, therefore, the same would also be a relevant

document to be considered by the Industrial Court.

9) Rule is accordingly made absolute in the aforesaid terms with

parties to bear their respective costs.

JUDGE

KHUNTE

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Shri Vardachari vs =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= on 21 July, 2011

Bombay High Court
Shri Vardachari vs =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= on 21 July, 2011
Bench: A.P. Bhangale
                                                              1




                                                                                                                    
                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                            
                                         NAGPUR BENCH, NAGPUR




                                                                                           
                             CRIMINAL APPLICATION NO.167 OF 2011



  Shri Vardachari s/o. Rangachari,




                                                                        
  Aged 68 yrs., Occ. retired Administrative
  Officer, M.S.E.B., r/o. Ramnagar, Nagpur.                                         .....            APPLICANT.
                                               
            // VERSUS //
                                              
  State of Maharashtra,
  through Anti-Corruption Bureau,
  Chandrapur.                                                                      ......            NON-APPLICANT.
                
             



  -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
                           Mr.Mahesh Singh, Advocate for the applicant.
                      Mr.A.S.Parihar, A.P.P. for the respondent/State.
  -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-





                                                             CORAM : A.P. BHANGALE, J.
                                                            DATED            :   21st July, 2011.





   ORAL JUDGMENT                 :




   1.           Heard finally by the consent of                          Mr. Mahesh Singh, Advocate for


the applicant and Mr.A.S.Parihar, A.P.P. for the respondent/State.

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2

2. By this application under Section 482 of the Code of Criminal

Procedure, the applicant has prayed for quashing and setting aside the

impugned order passed below Exh.77 on 10.3.2011 by the learned Special

Judge, Chandrapur in Special Case (ACB) No.4 of 1998. It appears that the

learned Advocate for the defence had filed an application (Exh.77) in the trial

Court contending that the accused came to know in or about the month of

December, 2010 that the first informant Ku. Surekha is involved in a series of

serious misconducts and that she was suspended on account of grave charges

against her. Departmental enquiry was also held against her and she was

found guilty. Defence had obtained information regarding misconducts of the

first informant in the third week of December, 2010 and had produced certain

documents listed with Exh.73 on 4.1.2011, which were allowed to be so

produced by the learned trial Judge. Those documents, according to the

defence, are not only relevant, but are required to be proved by the defence

to substantiate their case. The defence, therefore, prayed for examination of

certain witnesses so as to prove those documents by way of defence evidence

who were to be examined on behalf of the defence. The learned trial Judge

held that the documents received and produced by the defence on record

were in respect of the subsequent incident regarding alleged misconduct of

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3

the first informant and therefore, they were not relevant. According to the

learned trial Judge the witnesses proposed and to be examined as defence

witnesses were not important as far as the trial in question is concerned.

Thus, the application (Exh.77) was rejected.

3. The learned Advocate for the applicant submitted that the

documents which were allowed to be produced by the trial Judge cannot be

proved unless the defence is allowed to adduce evidence in support of its

defence. The documents could not have been produced earlier because they

were obtained under the Right to Information Act in the month of December,

2010 when the accused came to know about the misconduct of the first

informant. It is submitted that if the evidence which is proposed to be brought

on record on behalf of the defence is not allowed to be adduced, the defence

would suffer irreparable loss as defence would not be in a position to

otherwise assail credibility of complainant/first informant.

3. No reply has been filed by the learned A.P.P. to the application,

although sufficient opportunity has been granted to file the same. The learned

A.P.P. left it to the discretion of the Court.

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4

4. In Chapter XVIII of the Code of Criminal Procedure, in a trial before

the Court of Sessions, the trial Judge is under obligation to take all such

evidence as may be produced not only in support of the prosecution but also

which may be produced in support of the defence. When the accused is not

acquitted at the conclusion of the prosecution evidence, he is required to be

called upon to enter in his defence and adduce any evidence which he

may have in support thereof. In addition, the accused may also choose to file

Written Statement in his defence which shall be incorporated in the record of

the case. U/s.233 (3) of the Code of Criminal Procedure, when the accused

applies for the issue of any process for compelling the attendance of any

witness or the production of any document or thing, the Judge shall issue such

process unless he considers, for reasons to be recorded, that such application

should be refused on the ground that it is made for the purpose of vexation

or delay or for defeating the ends of justice. No such reason has been

mentioned by the learned trial Judge in the impugned order. The learned trial

Judge merely expressed his opinion that “considering the lapse of ten years

between the trap and the alleged misconduct of the complainant and the

misconduct of the complainant in the year 2006 having no concern with the

trap in the year 1998, I am not of the view that these witnesses are

important to decide the dispute before the Court i.e. to prove the offence

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5

against the accused and to decide conduct of the complainant in the year

1998.” This reason assigned by the learned trial Judge to reject the

application to adduce defence evidence is neither just nor proper. Even u/s.

311 of the Code of Criminal Procedure, the trial Court has a power to summon

any person as a witness, or examine any person in attendance, though not

summoned as a witness, or recall and re-examine any person already

examined; and the Court shall summon and examine or recall and re-examine

any such person if his evidence appears to it to be essential to the just

decision of the case. Therefore, an opportunity is required to be given to the

defence to adduce any evidence in support of its defence unless the

application for adducing additional evidence is made vexatiously or to delay or

defeat the ends of justice. Thus, applying the above test to the facts of the

present case, in my opinion, opportunity to adduce evidence ought to have

been granted to the accused to lead evidence in support of the defence.

Hence, the impugned order is set aside.

5. The applicant/accused shall be allowed to examine witnesses listed

in support of his defence. Defence shall file a list of witnesses as also a list

of documents and shall call upon the prosecution to admit or deny

genuineness of such documents as contemplated u/s. 294 of the Code of

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6

Criminal Procedure. If the prosecution admits genuineness of the documents,

such documents may be read in evidence in the course of trial without formal

proof. Proof of such documents may not be required in view of Section 294 of

the Code of Criminal Procedure which is intended to prevent delay which may

occur due to time consumed in examination of witnesses or further recording

of the evidence. The impugned order is set aside. The application is allowed

in the above terms. The parties are left to bear their own costs.

Copy of this judgment duly authenticated be supplied to the

learned Advocate for the applicant.

JUDGE

jais

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Arun Kanhu Pawar vs Sakru Ganu Rathod on 21 July, 2011

Bombay High Court
Arun Kanhu Pawar vs Sakru Ganu Rathod on 21 July, 2011
Bench: R. M. Savant
     2107wp1907.11.odt                                                                                1/9




                                                                                         
                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             NAGPUR BENCH, NAGPUR




                                                               
            WRIT PETITION NOS.1907/2011, 1908/2011 & 3435/2011
     -----------------------------------------------------------------------------------------------------

WRIT PETITION NO.1907/2011

PETITIONER :- Arun Kanhu Pawar,
Aged 21 years, Occupation agriculturist,

R/o Mhaismal, Post Belora,
Tahsil Pusad, District Yavatmal.

ig …VERSUS…

RESPONDENTS :- 1. Sakru Ganu Rathod,

Aged 65 years, Occupation agriculturist,
R/o Mhaismal, Post Belora,
Tahsil Pusad, District Yavatmal.

2. Additional Commissioner,
Amravati Division, Amravati.

3. Additional Collector, Yavatmal,
District Yavatmal.

4. Secretary, Gram Panchayat Mhaismal,

Post Belora, Tahsil Pusad,
District Yavatmal.


                                                   WITH





                                WRIT PETITION NO.1908/2011

     PETITIONER :-                       Vikas Zapa Pawar, 

Aged 30 years, Occupation agriculturist,
R/o Mhaismal, Post Belora,
Tahsil Pusad, District Yavatmal.

…VERSUS…

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RESPONDENTS :- 1. Sakru Ganu Rathod,
Aged 65 years, Occupation agriculturist,
R/o Mhaismal, Post Belora,

Tahsil Pusad, District Yavatmal.

2. Additional Commissioner,
Amravati Division, Amravati.

3. Additional Collector, Yavatmal,
District Yavatmal.

4. Secretary, Gram Panchayat Mhaismal,

Post Belora, Tahsil Pusad,
District Yavatmal.

                      ig             WITH
                    
                         WRIT PETITION NO.3435/2011

     PETITIONER :-            Sou. Savita Shalik Chavan,

Aged about 29 years, Occup. Agriculturist,

R/o Mhaismal, Post Belora,
Tq. Pusad, District Yavatmal.

…VERSUS…

RESPONDENTS :- 1. Addl. Commissioner,
Amravati Division, Amravati.

2. Addl. Collector, Yavatmal,

3. Secretary, Gram Panchayat Mhaismal,
Post Belora, Tq.Pusad,

Distt. Yavatmal.

4. Sakru Ganu Rathod,
Aged 65 years, Occup. Agriculturist,
R/o Mhaismal, Post Belora,
Tq. Pusad, District Yavatmal.

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—————————————————————————————————–

In W.P. Nos.1907 & 1908 of 2011
S/Shri R. Deo & P.B.Patil, learned counsel for the petitioner.

Shri R.N.Ghuge, learned counsel for the respondent No.1.
Shri A.D. Sonak, learned AGP for respondent Nos.2 and 3
Shri S. P. Pawar, learned counsel for the respondent No.4.

In W.P. Nos.1907 & 1908 of 2011

Shri P.B.Patil, learned counsel for the petitioner.
Shri A.D. Sonak, learned AGP for respondent Nos.1 and 2.
Shri S. P. Pawar, learned counsel for the respondent No.3.
Shri R.N.Ghuge, learned counsel for the respondent No.4.

—————————————————————————————————–

ig
CORAM : R. M. SAVANT J.

                                                   DATED  : 21.07.2011 
                        
     O R A L    J U D G M E N T



     1)        Rule   with   the   consent   of   the   parties   made   returnable   forthwith   and 
      


     heard. 
   



     2)        The above writ petitions take exception to the orders passed by the 





Additional Commissioner, Amravati Division, Amravati, by which orders

the Additional Commissioner in each of the above petitions has allowed

the Appeals filed by the complainant i.e. the respondent No.1 herein

Sakru Ganu Rathod in Writ Petition No.1907/2011 and thereby has

disqualified the petitioner in Writ Petition No.1907/2011 as Sarpanch and

the petitioners in Writ Petition Nos.3435/2011 and 1908/2011 as

members of the Gram Panchayat Mhaismal. The petitioners in each of the

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above petitions were elected as members of the Gram Panchayat

Mhaismal in the elections held in the year 2010. Thereafter the petitioner

in Writ Petition No.1907 was elected as the Sarpanch of the Gram

Panchayat Mhaismal. The respondent No.1 herein i.e. Sakru Ganu

Rathod, who is the complainant in all the matters, had also contested the

elections to the post of Sarpanch and had lost the same. The respondent

No.1 filed an application against each of the petitioners above named

under Section 14 (1) (j-3) of the Bombay Village Panchayats Act, 1958

(for brevity referred to as the “said Act”) seeking disqualification of the

petitioners on the ground that they have carried out encroachment on

Government land.

3) In so far as Writ Petition No.1907/2011 is concerned, it is the case

of the respondent No.1 that he filed complaint before the Additional

Collector that the father of the petitioner one Kanhu Zapa Pawar has

encroached upon the Government land and the petitioner herein i.e. Arun

Kanhu Pawar, who is presently prosecuting his study at Mukhed, District

Nanded, is disqualified to be a member of the Gram Panchayat.

Similarly, averment is there in the complaint filed against the petitioner in

Writ Petition No.1908/2011. In so far as the petitioner in Writ Petition

No.3435/2011 is concerned, the averment in the complaint against the

said petitioner is that her father-in-law had carried out construction. The

said complaints were replied to by each of the petitioners above named.

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      2107wp1907.11.odt                                                                           5/9




                                                                                     
     4)      It   was   the   case   of   the   petitioners   that   they   are   residing   in   the 

locality known as New Tanda Basti along with 50 to 60 other families

wherein the basic amenities like road, drinking water, etc. had been

provided to them and that the Gram Panchayat has been recovering

property tax for the structure in question. It appears that the Gram

Panchayat also filed its reply in the said proceedings and stated that the

petitioners in the above petitions are the residents of the said New Tanda

Basti wherein 50 to 60 families have been residing since last 30 to 40

years and that the Gram Panchayat is recovering taxes in respect of the

said structures.

5) The Additional Collector, Yavatmal considered the said application

filed by the complainant i.e. the respondent No.1 herein and by his order

dated 13th December, 2010 rejected the said application. Similarly, is

the position in Writ Petition No.1908/2011 as also in Writ Petition

No.3435/2011.

6) Aggrieved by the said order dated 13th December, 2010, the

respondent No.1 Sakru Ganu Rathod filed an Appeal before the State

Government. The said Appeal was tried by the Additional Collector and

by the impugned order dated 07/04/2011 in Writ Petition No.1907/2011

as well as in Writ Petition No.1908/2011, allowed the said Appeals and

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resultantly disqualified the petitioners in each of the above petitions to

be Sarpanch and members respectively. In so far as Writ Petition

No.3435/2011 is concerned, the order is dated 06/06/2011 disqualifying

the petitioner therein.

7) In so far as the order of the Additional Collector is concerned, The

Additional Collector, as can be ex facie seen from his order dated 13th

December, 2010, considered the material that was placed on record by the

petitioners, which included the extract of the tax register wherein the

payment of tax in so far as the structure of the petitioner was concerned,

was shown. The Additional Collector took into consideration the fact that

though the owner’s name is mentioned as Government, the name of the

person shown in possession is Kanhu Zapa Pawar against the structure

bearing No.264. The Additional Collector also took into consideration the

fact that there is no proceeding pending in any Court in respect of the

alleged encroachment. The Additional Collector relying on the said

documents and also considering the fact that no contra material was

produced by the respondent No.1, came to a conclusion that it could not

be said that the encroachment by the petitioners was proved.

8) In so far as the Additional Commissioner, who was the Appellate

Authority, is concerned, the Appellate Authority seems to have been

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swayed by the fact that the land is shown to be belonging to the State

Government and, therefore, even if the basic amenities, etc. are given to

the occupants of the said new Tanda Basti and even if the tax has been

recovered by the Gram Panchayat, that would be of no avail. The

Additional Commissioner to say the least has by a cryptic order allowed

the said Appeal without considering the matter in its proper perspective

qua the allegation which was made in terms of the ground available in

Section 14 (1) (j-3) of the said Act. The Additional Commissioner has not

even adverted to the case of the respondent No.1 complainant that it was

the father of the petitioner, who had allegedly encroached upon the

Government land and whether on the said basis the petitioner could be

disqualified under Section 14 (1) (j-3) of the said Act on the said ground.

However, by merely referring to the word ‘encroachment’ as appearing in

Section 14 (1) (j-3), the Additional Commissioner has allowed the Appeal

and disqualified the petitioner in Writ Petition No.1907/2011 as also the

petitioner in the other two petitions on the ground that they had

committed encroachment. The said order of the Additional Commissioner

makes a totally unsatisfactory reading. It is expected of a quasi judicial

authority to record finding of facts as well as law, when it is dealing with

the matter within its jurisdiction more so when it is dealing with a matter

as serious as the disqualification of the members of the Gram Panchayat

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and the Sarpanch. The same is totally found lacking in the impugned

orders. In that view of the matter, the impugned orders in all the above

petitions passed by the Additional Commissioner are required to be set

aside and the matters are required to be relegated back to the Additional

Commissioner for a de novo consideration. Hence, the following

directions.

i) The impugned orders dated 07/04/2011 (subject matter of Writ

Petition Nos.1907/2011 and 1908/2011) and order dated

06/06/2011 (subject matter of Writ Petition No.3435/2011) are

quashed and set aside.

ii) The Appeals are remanded back to the Additional Commissioner

for a de novo consideration.

iii) The Additional Commissioner to consider the matters in the

context of the pleadings of the parties having regard to the case of

the complainant and the reply filed by the petitioners herein.

iv) The issue would have to be considered on the touchstone of

Section 14 (1) (j-3) of the Bombay Village and Panchayats Act,

1958 and finding would have to be recorded as to whether in the

light of the case of the complainant himself whether the petitioners

in each of the above petitions can be disqualified.


     v)     The   Additional   Commissioner   to   consider   in   the   light   of   the 




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      2107wp1907.11.odt                                                                      9/9




                                                                                

material on record of the new Tanda Basti being in existence for

the last 30 to 40 years, the said new Tanda Basti being provided the

basic amenities, the taxes being recovered by the Gram Panchayat,

and in the light of the aforesaid facts whether the petitioners can

be said to be encroachers on Government property.

vi) The parties would be entitled to file further replies/documents, if

so advised.

vii)

The Additional Commissioner to deal with the contentions of the

parties and record findings and pass a well reasoned order in the

Appeals.

viii) The parties to appear before the Additional Commissioner on 16th

August, 2011. The Additional Commissioner thereafter to decide

the Appeals within a period of two months from the first

appearance of the parties.

9) Rule is accordingly made absolute in the aforesaid terms with

parties to bear their respective costs.

JUDGE

KHUNTE

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Arun Kanhu Pawar vs Sakru Ganu Rathod on 21 July, 2011

Bombay High Court
Arun Kanhu Pawar vs Sakru Ganu Rathod on 21 July, 2011
Bench: R. M. Savant
     2107wp1907.11.odt                                                                                1/9




                                                                                         
                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             NAGPUR BENCH, NAGPUR




                                                               
            WRIT PETITION NOS.1907/2011, 1908/2011 & 3435/2011
     -----------------------------------------------------------------------------------------------------

WRIT PETITION NO.1907/2011

PETITIONER :- Arun Kanhu Pawar,
Aged 21 years, Occupation agriculturist,

R/o Mhaismal, Post Belora,
Tahsil Pusad, District Yavatmal.

ig …VERSUS…

RESPONDENTS :- 1. Sakru Ganu Rathod,

Aged 65 years, Occupation agriculturist,
R/o Mhaismal, Post Belora,
Tahsil Pusad, District Yavatmal.

2. Additional Commissioner,
Amravati Division, Amravati.

3. Additional Collector, Yavatmal,
District Yavatmal.

4. Secretary, Gram Panchayat Mhaismal,

Post Belora, Tahsil Pusad,
District Yavatmal.


                                                   WITH





                                WRIT PETITION NO.1908/2011

     PETITIONER :-                       Vikas Zapa Pawar, 

Aged 30 years, Occupation agriculturist,
R/o Mhaismal, Post Belora,
Tahsil Pusad, District Yavatmal.

…VERSUS…

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RESPONDENTS :- 1. Sakru Ganu Rathod,
Aged 65 years, Occupation agriculturist,
R/o Mhaismal, Post Belora,

Tahsil Pusad, District Yavatmal.

2. Additional Commissioner,
Amravati Division, Amravati.

3. Additional Collector, Yavatmal,
District Yavatmal.

4. Secretary, Gram Panchayat Mhaismal,

Post Belora, Tahsil Pusad,
District Yavatmal.

                      ig             WITH
                    
                         WRIT PETITION NO.3435/2011

     PETITIONER :-            Sou. Savita Shalik Chavan,

Aged about 29 years, Occup. Agriculturist,

R/o Mhaismal, Post Belora,
Tq. Pusad, District Yavatmal.

…VERSUS…

RESPONDENTS :- 1. Addl. Commissioner,
Amravati Division, Amravati.

2. Addl. Collector, Yavatmal,

3. Secretary, Gram Panchayat Mhaismal,
Post Belora, Tq.Pusad,

Distt. Yavatmal.

4. Sakru Ganu Rathod,
Aged 65 years, Occup. Agriculturist,
R/o Mhaismal, Post Belora,
Tq. Pusad, District Yavatmal.

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—————————————————————————————————–

In W.P. Nos.1907 & 1908 of 2011
S/Shri R. Deo & P.B.Patil, learned counsel for the petitioner.

Shri R.N.Ghuge, learned counsel for the respondent No.1.
Shri A.D. Sonak, learned AGP for respondent Nos.2 and 3
Shri S. P. Pawar, learned counsel for the respondent No.4.

In W.P. Nos.1907 & 1908 of 2011

Shri P.B.Patil, learned counsel for the petitioner.
Shri A.D. Sonak, learned AGP for respondent Nos.1 and 2.
Shri S. P. Pawar, learned counsel for the respondent No.3.
Shri R.N.Ghuge, learned counsel for the respondent No.4.

—————————————————————————————————–

ig
CORAM : R. M. SAVANT J.

                                                   DATED  : 21.07.2011 
                        
     O R A L    J U D G M E N T



     1)        Rule   with   the   consent   of   the   parties   made   returnable   forthwith   and 
      


     heard. 
   



     2)        The above writ petitions take exception to the orders passed by the 





Additional Commissioner, Amravati Division, Amravati, by which orders

the Additional Commissioner in each of the above petitions has allowed

the Appeals filed by the complainant i.e. the respondent No.1 herein

Sakru Ganu Rathod in Writ Petition No.1907/2011 and thereby has

disqualified the petitioner in Writ Petition No.1907/2011 as Sarpanch and

the petitioners in Writ Petition Nos.3435/2011 and 1908/2011 as

members of the Gram Panchayat Mhaismal. The petitioners in each of the

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above petitions were elected as members of the Gram Panchayat

Mhaismal in the elections held in the year 2010. Thereafter the petitioner

in Writ Petition No.1907 was elected as the Sarpanch of the Gram

Panchayat Mhaismal. The respondent No.1 herein i.e. Sakru Ganu

Rathod, who is the complainant in all the matters, had also contested the

elections to the post of Sarpanch and had lost the same. The respondent

No.1 filed an application against each of the petitioners above named

under Section 14 (1) (j-3) of the Bombay Village Panchayats Act, 1958

(for brevity referred to as the “said Act”) seeking disqualification of the

petitioners on the ground that they have carried out encroachment on

Government land.

3) In so far as Writ Petition No.1907/2011 is concerned, it is the case

of the respondent No.1 that he filed complaint before the Additional

Collector that the father of the petitioner one Kanhu Zapa Pawar has

encroached upon the Government land and the petitioner herein i.e. Arun

Kanhu Pawar, who is presently prosecuting his study at Mukhed, District

Nanded, is disqualified to be a member of the Gram Panchayat.

Similarly, averment is there in the complaint filed against the petitioner in

Writ Petition No.1908/2011. In so far as the petitioner in Writ Petition

No.3435/2011 is concerned, the averment in the complaint against the

said petitioner is that her father-in-law had carried out construction. The

said complaints were replied to by each of the petitioners above named.

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      2107wp1907.11.odt                                                                           5/9




                                                                                     
     4)      It   was   the   case   of   the   petitioners   that   they   are   residing   in   the 

locality known as New Tanda Basti along with 50 to 60 other families

wherein the basic amenities like road, drinking water, etc. had been

provided to them and that the Gram Panchayat has been recovering

property tax for the structure in question. It appears that the Gram

Panchayat also filed its reply in the said proceedings and stated that the

petitioners in the above petitions are the residents of the said New Tanda

Basti wherein 50 to 60 families have been residing since last 30 to 40

years and that the Gram Panchayat is recovering taxes in respect of the

said structures.

5) The Additional Collector, Yavatmal considered the said application

filed by the complainant i.e. the respondent No.1 herein and by his order

dated 13th December, 2010 rejected the said application. Similarly, is

the position in Writ Petition No.1908/2011 as also in Writ Petition

No.3435/2011.

6) Aggrieved by the said order dated 13th December, 2010, the

respondent No.1 Sakru Ganu Rathod filed an Appeal before the State

Government. The said Appeal was tried by the Additional Collector and

by the impugned order dated 07/04/2011 in Writ Petition No.1907/2011

as well as in Writ Petition No.1908/2011, allowed the said Appeals and

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resultantly disqualified the petitioners in each of the above petitions to

be Sarpanch and members respectively. In so far as Writ Petition

No.3435/2011 is concerned, the order is dated 06/06/2011 disqualifying

the petitioner therein.

7) In so far as the order of the Additional Collector is concerned, The

Additional Collector, as can be ex facie seen from his order dated 13th

December, 2010, considered the material that was placed on record by the

petitioners, which included the extract of the tax register wherein the

payment of tax in so far as the structure of the petitioner was concerned,

was shown. The Additional Collector took into consideration the fact that

though the owner’s name is mentioned as Government, the name of the

person shown in possession is Kanhu Zapa Pawar against the structure

bearing No.264. The Additional Collector also took into consideration the

fact that there is no proceeding pending in any Court in respect of the

alleged encroachment. The Additional Collector relying on the said

documents and also considering the fact that no contra material was

produced by the respondent No.1, came to a conclusion that it could not

be said that the encroachment by the petitioners was proved.

8) In so far as the Additional Commissioner, who was the Appellate

Authority, is concerned, the Appellate Authority seems to have been

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swayed by the fact that the land is shown to be belonging to the State

Government and, therefore, even if the basic amenities, etc. are given to

the occupants of the said new Tanda Basti and even if the tax has been

recovered by the Gram Panchayat, that would be of no avail. The

Additional Commissioner to say the least has by a cryptic order allowed

the said Appeal without considering the matter in its proper perspective

qua the allegation which was made in terms of the ground available in

Section 14 (1) (j-3) of the said Act. The Additional Commissioner has not

even adverted to the case of the respondent No.1 complainant that it was

the father of the petitioner, who had allegedly encroached upon the

Government land and whether on the said basis the petitioner could be

disqualified under Section 14 (1) (j-3) of the said Act on the said ground.

However, by merely referring to the word ‘encroachment’ as appearing in

Section 14 (1) (j-3), the Additional Commissioner has allowed the Appeal

and disqualified the petitioner in Writ Petition No.1907/2011 as also the

petitioner in the other two petitions on the ground that they had

committed encroachment. The said order of the Additional Commissioner

makes a totally unsatisfactory reading. It is expected of a quasi judicial

authority to record finding of facts as well as law, when it is dealing with

the matter within its jurisdiction more so when it is dealing with a matter

as serious as the disqualification of the members of the Gram Panchayat

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and the Sarpanch. The same is totally found lacking in the impugned

orders. In that view of the matter, the impugned orders in all the above

petitions passed by the Additional Commissioner are required to be set

aside and the matters are required to be relegated back to the Additional

Commissioner for a de novo consideration. Hence, the following

directions.

i) The impugned orders dated 07/04/2011 (subject matter of Writ

Petition Nos.1907/2011 and 1908/2011) and order dated

06/06/2011 (subject matter of Writ Petition No.3435/2011) are

quashed and set aside.

ii) The Appeals are remanded back to the Additional Commissioner

for a de novo consideration.

iii) The Additional Commissioner to consider the matters in the

context of the pleadings of the parties having regard to the case of

the complainant and the reply filed by the petitioners herein.

iv) The issue would have to be considered on the touchstone of

Section 14 (1) (j-3) of the Bombay Village and Panchayats Act,

1958 and finding would have to be recorded as to whether in the

light of the case of the complainant himself whether the petitioners

in each of the above petitions can be disqualified.


     v)     The   Additional   Commissioner   to   consider   in   the   light   of   the 




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material on record of the new Tanda Basti being in existence for

the last 30 to 40 years, the said new Tanda Basti being provided the

basic amenities, the taxes being recovered by the Gram Panchayat,

and in the light of the aforesaid facts whether the petitioners can

be said to be encroachers on Government property.

vi) The parties would be entitled to file further replies/documents, if

so advised.

vii)

The Additional Commissioner to deal with the contentions of the

parties and record findings and pass a well reasoned order in the

Appeals.

viii) The parties to appear before the Additional Commissioner on 16th

August, 2011. The Additional Commissioner thereafter to decide

the Appeals within a period of two months from the first

appearance of the parties.

9) Rule is accordingly made absolute in the aforesaid terms with

parties to bear their respective costs.

JUDGE

KHUNTE

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Act vs The Sate Of Maharashtra on 20 July, 2011

Bombay High Court
Act vs The Sate Of Maharashtra on 20 July, 2011
Bench: S.C. Dharmadhikari
                                                                    17-wp-904-10.doc


jdk     

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                              
                        CIVIL APPELLATE JURISDICTION




                                                      
                      WRIT PETITION NO. 904 OF 2010




                                                     
           The City & Industrial Development      ]
           Corporation Ltd., a body established   ]
           under the provisions of the City and   ]
           Industrial Development Corporation     ]




                                              
           Act, having office at CIDCO Bhavan,    ]
           CBD Belapur, Navi Mumbai-400 0614
                              ig                  ]..Petitioner

                Vs.
                            
             1. The Sate of Maharashtra           ]
                through the Ministry of Revenue   ]
                and Forest, Mantralaya,           ]
                Mumbai-400 032                    ]
             


             2. The Hon'ble Minister for          ]
                Revenue, State of Maharashtra     ]
          



                Mantralaya, Mumbai-32             ]

             3. The Collector, Raigad             ]





             4. Vinayak Pundlik Aaklekar          ]
                Age Adult, Occ: Retired           ]

             5. Smt.Sanjivani Bhalchandra         ]
                Aaklekar, Aged adult,             ]





                Occ: Household                    ]

             6. Rajendra Bhalchandra Aaklekar ]
                Age adult, Occ: Service       ]

             7. Ms. Pradnya Bhalchandra          ]
                Aaklekar, Age adult, Occ: Service]

                Nos. 4 to 7 residing at 140/4752 ]
                Pritisagar Society, Kurla (East) ]


                                           1

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         Through their Power of Attorney   ]
         Shri. Indrajeet V.Bhadra,         ]
         Age Adult, Occ: Business,         ]
         Residing at 9/D, Devkinandan      ]




                                                                      
         Sector 3E, Navi Mumbai            ]..Respondents




                                              
    Shri. Y.S.Jahagirdar Senior Advocate with Shri. S.S.Kanetkar for
    petitioners




                                             
    Shri. N.V.Walawalkar Senior Advocate with               Shri.Umesh
    Mankapure advocate for respondent nos. 4 to 7




                                       
    Shri. R.M.Patne AGP for respondent nos.1 to 3
                       
                    CORAM : S.C.DHARMADHIKARI, J.
                    DATE       : 20th JULY, 2011.


    ORAL JUDGMENT:
      
   



    1. Rule.    Respondents waive service.          Rule returnable

      forthwith.





2. This writ petition under Articles 226 and 227 of the

Constitution of India is directed against the order passed by

the Minister for Revenue, Government of Maharashtra

dated 5th June, 2009, a copy of which is annexed at

Annexure-D to the petition.

3. That order came to be passed on a Revision Application

which was filed by the contesting respondents nos. 4 to 7 to

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this petition.

4. The application alleged that certain lands at Mouje

Kharghar, Taluka Panvel, District Raigad were belonging to

one Kurvanali Nagarali Khoja. The name of said person is

entered in the revenue records as owner. The said lands

have been disposed of by the said Kurvanali Khoja to

predecessor-in-title of the respondent nos. 4 to 7, namely

Smt. Chandrabhagabai Pandurang Aaklekar i.e. by a

document/deed dated 27th May, 1940. Thereafter, the said

Smt. Chandrabhagabai Pundlik Aaklekar was put in

possession and she has got absolute title and right in the

said property. Her name has been entered in the revenue

record as owner qua Entry No.619.

5. This land, according to the respondent nos.4 to 7, always

remained with Smt. Chandrabhagabai and she never parted

with possession thereof nor her title and/or interest therein

was transferred in any manner. This land has been

erroneously mentioned in the revenue records as

“Akaripad”. It has not been notified as land belonging to a

private party. In these circumstances, the land came to

Kharghar Gram Panchayat on certain terms and conditions.

The statement made in the application to the State

Government invoking its revisional powers, clearly states

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that the Collector had passed orders on 13th March, 1941

and 19th March, 1941. It is aggrieved by this that the

revisional jurisdiction has been invoked purportedly to seek

correction and modification in the revenue records so as to

show that the said Chandrabhagabai never lost her title and

interest in the said properties.

6. Upon this application, the contesting respondent viz.

petitioner which is City & Industrial Development

Corporation Ltd., (for short “CIDCO”) the Planning

Authority

raised a preliminary objection that such

application at the instance of the respondent nos. 4 to 7

cannot be entertained at this belated stage. This

application cannot be accepted in any event because the

land was a Government land and stood vested in the CIDCO

free from all encumbrances. It was pointed out that after a

lapse of 70 years, the entries are being questioned and

without pointing out that during the intervening period the

claim was relinquished by Smt. Chandrabhagabai Aaklekar.

The Government took possession and thereafter the land

was declared as `Akaripad” and declared as Gram

Panchayat land. It vested in the Group Gram Panchayat in

the year 1952. In the year 1971, the land was notified for

Panvel town and Navi Mumbai and the State Government

after following the necessary proceedings directed that the

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said land vests in CIDCO free from all encumbrances. This

was a development of 1972 and thereafter the possession

was handed over to the CIDCO in the year 1985. Once the

land vested in this manner, then, there is no question of the

revision being entertained or any orders being passed

thereon.

7. By overruling this objection, according to the petitioners,

the matter was decided by the then Revenue Minister and

while directing that the revenue entries be corrected, he

further directed that the question of physical possession

being handed over to the respondent nos. 4 to 7, does not

arise on account of supervening development and

circumstances. However, it should be held and all the

concerned should proceed on the basis of the land having

been acquired from the private parties. The land should be

treated as private land and therefore, the benefits that are

available post acquisition for such lands, be made available

to the respondent nos. 4 to 7.

8. Apprehending that the entire matter which stands

concluded by the directions of the State Government

issued way back in the year 1972, and the land vesting in

CIDCO free from all encumbrances is reopened in this

manner and CIDCO may have to face further proceedings

so also part with either its immovable property or valuable

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public funds, that the instant writ petition has been filed.

9. Mr. Jahagirdar. learned Senior Counsel appearing on behalf

of the petitioner submitted that ordinarily the petitioner

which is a public authority, would not approach this Court

in writ jurisdiction challenging the said orders of the State

Government. However, in the garb of issuing innocuous

directions to correct the revenue entries what the State

Government has done is that benefits which flow from the

acquisition of private lands, is made available to the

respondent nos. 4 to 7. In other words, apart from seeking

monetary benefits and reliefs on the basis of the order

passed by the State Government, they would also seek

allotment of alternate land under some Schemes which

have been framed by the CIDCO. All this would be based

on the declaration of the State Government. He submits

that if there was a dispute as regards the right, title and

interest of parties in the subject immovable properties and

if it was their claim that private lands are acquired, then,

nothing prevented them from approaching the competent

Court for all these years seeking appropriate reliefs. That

having not been done, in the garb of entertaining a revision

application and that too to set at naught something which

took place 70 years back, the State Government has

passed the instant order. This is contrary to settled legal

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principles that the revisional jurisdiction must be exercised

within a reasonable time. That reasonable time in given

facts and circumstances, could never exceed the period of

three years. In these circumstances, looked at any way,

the impugned order deserves to be set aside.

10. The petition has been contested by the respondent nos. 4

to 7. Mr. Walawalkar, the learned Senior Counsel on their

behalf invited my attention to the affidavit filed in reply and

firstly, submitted
ig that CIDCO being an Agency or

Instrumentality of the State and a Special Town Planning

Authority, it has no locus to question the order of the State

Government. Secondly, he submits that none of the factual

aspects which were placed before the concerned Minister

were ever disputed by the petitioner. It was pointed out

that during the course of hearing before the Minister that

there was no relinquishment. Apart from that, the said

property was sold by Chandrabhagabai to one Zuelekabai

Kazi by registered sale deed dated 29th March, 1946. If the

lands were allegedly surrendered and the claim was

relinquished by the said Chandrabhagabai then this sale

deed could never have been executed. There is a specific

mention with regard to this sale deed and copy thereof was

also produced. After the sale deed, the purchaser was put

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in possession and he enjoyed fruits of the deed and when

the land was acquired by CIDCO in the year 1972 so also

when the actual possession was taken in the year 1985, the

purchaser was held entitled to benefits under the award

and accordingly, subsequent benefits are granted to him.

For all these reasons, this is not a fit case for interference in

writ jurisdiction and particularly, when the dispute is with

regard to the revenue entries.

11. With the assistance of the learned Senior Counsel

appearing for the parties, I have perused the petition and

annexures thereto so also affidavit on record. As far as

objection raised by Shri. Walawalkar about the locus standi

of the petitioner and reliance placed upon the decision of

the learned Single Judge of this Court in the case of

Percival Joseph Pareira Vs. Special Land Acquisition

Officer and others reported in 2010 (5) B.C.R. 344 is

concerned, it must be at once noticed that this was a case

of reference under Section 18 of the Land Acquisition Act,

1894. The claimants challenged the order passed by the

Reference Court directing that the CIDCO should be

impleaded as opponent. It was his case that the lands were

not acquired by CIDCO nor at their instance. The State

Government was the acquiring body and therefore, CIDCO

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has no locus to appear in the proceedings. It was while

dealing with this objection that the locus of CIDCO was

decided. This decision can never be of any assistance to

question the locus of CIDCO in the instant proceedings. If a

Authority like CIDCO are of the opinion that some of the

directions in the impugned order exceed the jurisdiction of

the State Government under Section 257 of the

Maharashtra Land Revenue Code, 1966 and may have far

reaching consequences, then, nothing prevents the CIDCO

from approaching this Court in its extra ordinary jurisdiction

under Articles 226 and 227 of the Constitution of India.

These powers are plenary in nature. They can be invoked

by the authorities to question the act of the State

Government and if it affects public interest so also re-opens

already concluded matters. Precisely for this reason that

the instant petition has been filed. Therefore, there is no

substance in the first objection about the locus of the

petitioner.

12.As far as the second objection is concerned, it is clear that

the predecessor-in-title of the respondent nos. 4 to 7 nor

the said purchaser has ever approached the petitioner

either seeking benefits under the Award or the authorities

under the Land Revenue Code have been approached for

correction or modification of the revenue entries by them.

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The present respondent nos. 4 to 7 claim to be entitled to

the lands through their predecessor-in-title i.e.

Chandrabhagabai. It was their case that said

Chandrabhagabai never relinquished her right, title and

interest in the lands and continued to retain the ownership

thereof. Such a claim and that too for the first time is

entertained by the Revenue Minister. Considering the

limited scope of the proceedings namely, seeking

modification and correction in revenue entries, it was not

open for him to go into the disputed the question of title. It

was his plain duty in law in such cases to direct the parties

to approach the competent Civil Court and claim

appropriate declaration in their favour. On the basis of

such declaration the revenue records could have been

corrected. However, instead of issuing such direction and

disposing of the revision application, the Minister

entertained it and virtually adjudicated on the disputed

issues. The result of the same is that without any

declaration in their favour, respondent nos. 4 to 7 by

impleading CIDCO as party and approaching the State

Government under Section 257 of the Maharashtra Land

Revenue Code, 1966 obtained certain benefits attached to

and arising out of the interest in the land. The question

was whether such benefits could have been given by the

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State Government in the instant proceedings. The Minister

clearly went much beyond his power, authority and

jurisdiction and issued directions which could be said to be

unsustainable in law. There is substance in the contentions

of Mr. Jahagirdar that innocuous they may appear at least,

direction no. (B) would have the effect of re-opening the

concluded acquisition proceedings and directing CIDCO to

extend the benefits of certain beneficial schemes to

persons who are before the revisional authorities. Whether

the issue that the said persons could have claimed the

same through their predecessor-in-title benefits or

otherwise in law, has not been decided. Indeed, it could

not have been decided in the limited authority and power.

It has not been held that the facts on record are so

undisputed and clear that there was never any doubt about

the same on the own showing of the respondent nos. 4 to 7

whether Chandrabhagabai retained the title in the lands is a

matter which cannot be gone into unless a declaration in

their favour is obtained by them from the competent Civil

Court. In these circumstances and without any such

declaration, the Minister could not have issued the instant

direction.

13.The Minister has clearly exceeded his authority and could

he safely be said in legal parlance has abused the powers

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that are conferred under Section 257 of the Maharashtra

Land Revenue Code, 1966 in issuing the instant direction.

Section 257 of the Maharashtra Land Revenue Code, 1966

confers powers on the State Government and on certain

Revenue and Survey Officers to call for and examine

records and proceedings of subordinate officers for the

purpose of satisfying themselves as to the legality or

propriety of any decision or order passed, and as to the

regularity of the proceedings before such Officer. It is not

as if these powers have to be exercised as a matter of

course. The powers are conferred specifically to decide the

legality or propriety of the decision or the order or

regularity of the proceedings. In such limited power, the

State Government could not have as in the instant case,

taken upon itself the role of an adjudicator of Right and

Title to a immovable property. The role of adjudicator, in

the given circumstances, was to be performed by a Civil

Court. In the absence of any of the factors which would

enable the exercise of the revisional jurisdiction that the

same have been exercised in the instant case. It is well

established principle of law that what cannot be achieved

directly cannot be achieved indirectly or by oblique way or

method. The Revenue Minister and the State ought to

have been aware that all powers of the aforesaid nature are

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in the nature of a Trust. The same are to be exercised

bearing in mind Public good and Public Trust. Private

Interest and benefit is subservient to larger Public Interest.

The Revisional Authority ought to have been aware that

giving directions to its own Agency or Instrumentality and

particularly of the aforementioned nature will land it in

serious difficulties as so called landowners will then rush to

claim back lands or benefits attached to it or monetary

compensation at enhanced rates or such other advantages

and privileges which may have been given and offered in

the past to induce owners of huge tracts of land to part with

them for implementing a New Town Development Project.

All cases and matters which have been closed decades

back will be reopened and an attempt will be made to seek

similar reliefs. Floodgates would open and CIDCO may be

exposed to unnecessary and futile litigation. In this

context, the Judgment of the Hon’ble Supreme Court in the

case of S.C. and S.T. Welfare Council Vs. State of Uttar

Pradesh reported in AIR 1997 S.C. 1451 is relevant. In

paras 21 to 23 of this decision, it is observed thus :

” 21. S.A. de Smit in his article “The abuse of

statutory powers” published in Public Law Series 1956

(page 233) has stated in page 237 under the heading

of “Misuse of Powers in Bad Faith and in Good Faith”

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that a discretionary power may be exercised invalidly

if its repository exercises it for an improper purpose

or on the basis of irrelevant considerations or in

disregard of relevant considerations or with gross

unreasonableness… The concept of bad faith eludes

precise definition, but in relation to the exercise of

statutory powers it may be said to comprise

dishonestly and malice. A power is exercised

dishonestly if its repository intends to achieve an

object other than that for which he believes the power

to have been conferred. His intention may be to

promote another public interest or his own private

interests. A power is exercised maliciously if its

repository is motivated by personal animosity towards

those who are directly affected by its exercise.

23. In “Public Administration” by Pfiffner Presthus

(4th Edn.) at page 550 it is stated that public

administration is responsible to the rule of law

doctrine which proves a fairly effective standard for

judging administrative decision. Political responsibility

is similarly involved with the idea of government’s

control by public opinion, political parties, and the

community. Responsibility is also commonly used to

denote the obligation of an individual to behave

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according to certain standards of conduct. In public

administration, responsibility often has a negative

connotation; we are usually satisfied if the official is

kept from wrong doing. On “Responsibility and

Accountability”, he states that accountability refers to

the formal or legal locus of responsibility.

Responsibility, on the other hand, has a highly

personal, normal quality and is not necessarily related

to formal status or power, although it is probably true

that greater power brings greater responsibility. Thus

a department head is accountable for the actions of

all his subordinates, although in actual fact he is not

“responsible” for their use of the power which he must

of necessity delegate to them. Similarly, in exercising

discretion the official is normally responsible for his

decisions, although he is often not legally

accountable. In practice, responsibility must be

shared; it percolates down the stream throughout the

entire administrative branch. On the other hand,

accountability, which concerns the formal

relationships between administration and the

legislative and judicial branches, can never be

shared…… The Council of Ministers is accountable for

the entire administrative branch. The bureaucracy

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has a representative function. In the case of

regulatory activity, for example, administrators give

meaning to broad legislative declarations of social

policy by their decisions in specific cases. In

advancing the social objective of the community, they

sometimes develop the rule of public interest which is

applied when decisions are made. The bureaucracy

shares with the legislature the task of ensuring that

the community receives a reasonable amount of

justice in the distribution of public resources……

Obviously, therefore full faith was given to their acts

and actions. In selecting among alternative policies,

in extending or narrowing the efficacy of rule or

policy, the official necessarily must work in a value

context. Various factors impinging upon a particular

decision are isolated and require assignment of

relative weights nor in accordance with what the

official thinks is “right” but in tune with and to

effectuate mandates of the Constitution. The “public

interest” will be the ultimate element in this process.”

Again in M.I.Builders Pvt. Ltd. Vs. Radhey Shyam Sahu, the

Hon’ble Supreme Court holds as under:

“60. In the treatise “Environmental Law and Policy :

Nature, Law and Society by Plater Abrams Goldfarb

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(American Casebook series 1992) under the Chapter

on Fundamental Environmental Rights, in Section 1

(The Modern Rediscovery of the Public Trust Doctrine)

it has been noticed that “long ago there developed in

the law of the Roman Empire a legal theory known as

the “Doctrine of the public trust”. In America Public

Trust doctrine was applied to public properties, such

as shore-lands and parks. As to how doctrine works it

was stated: “The scattered evidence, taken together,

suggests that the idea of a public trusteeship rests

upon three related principles. First, that certain

interests– like the air and the sea — have such

importance to the citizenry as a whole that it would be

unwise to make them the subject of private

ownership. Second, that they partake so much of the

bounty of nature, rather than of individual enterprise,

that they should be made freely available to the

entire citizenry without regard to economic status.

And, finally, that it is a principle purpose of

government to promote the interests of the general

public rather than to redistribute public goods from

broad public uses to restricted private benefit……”

with reference to a decision in Illinois Central Railroad

Company Vs. Illinois, (1892) 146 US 387, it was stated

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that “the Court articulated in that case the principle

that has become the central substantive thought in

public trust litigation. When a state holds a resource

which is available for the free use of the general

public, a Court will look with considerable skepticism

upon any governmental conduct which is calculated

either to reallocate the resource to more restricted

uses or to subject public uses to the self-interest of

private parties”. This public trust doctrine in our

country, it would appear, has grown from Article 21 of

the Constitution.

68. When we keep in view the principles laid by this

Court in its various judgments and which we have

noticed above, it has to be held that the agreement

dated November 4, 1993 is not a valid one. The

agreement defies logic. It is outrageous. It crosses all

limits of rationality. Mahapalika has certainly acted in

fatuous manner in entering into such an agreement. It

is a case where the High Court rightly interfered in

exercise of its powers of judicial review keeping in

view the principles laid by this Court in Tata Cellular

Vs. Union of India (1994) 6 SCC 651 : (1994 AIR SCW

3344 : AIR 1996 SC 11), Every decision of the

authority except the judicial decision is amenable to

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judicial review and reviewability of such a decision

cannot now be questioned. However, a judicial review

is permissible if the impugned action is against law or

in violation of the prescribed procedure or is

unreasonable, irrational or mala fide. On the principle

of good governance reference was made to a decision

of Division Bench of Bombay High Court in State of

Bombay V. Laxmidas Ranchhoddas AIR 1952 Bombay

468 at 475 (Para 12). It was submitted that bad

governance sets a bad example. That is what exactly

happened in the present case.

69 . In State of Bombay V. Laxmidas Ranchhoddas,

AIR 1952 Bom 468 a Division Bench of the High Court

was considering the argument that the writ of

mandamus being discretionary, the Court should

consider whether it should not put a limitation upon

its own powers and jurisdiction. It was submitted that

it was impossible for any State to function if there was

a constant interference by the High Court in the

executive acts performed by the officers of the State,

Chagla, CJ, speaking for the Court, said (Para 12):

“It may be that interference by the High Court may

result in inconvenience or difficulty in

administration. But what we have to guard against

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is a much greater evil. When we find in the

modern State wide powers entrusted to

Government, powers which affect the property and

person of the citizen, it is the duty of the Courts to

see that those wide powers are exercised in

conformity with what the Legislature has

prescribed. We are not oblivious of the fact that in

order that the modern State should function the

Government must be armed with very large

powers. But the High Court does not interfere with

the exercise of those powers. The High Court only

interferes when it finds that those powers are not

exercised in accordance with the mandate of the

Legislature. Therefore, far from interfering with the

good governance of the State, the Court helps the

good governance by constantly reminding

Government and its officers that they should act

within the four corners of the statute and not

contravene any of the conditions laid down as a

limitation upon their undoubtedly wide powers.

Therefore, even from a practical point of view,

even from the point of view of the good

governance of the State, we think that the High

Court should not be reluctant to issue its

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prerogative writ whenever it finds that the

sovereign Legislature has not been obeyed and

powers have been assumed which the Legislature

never conferred upon the executive.”

14.It is for this reason, that this Court is required to interfere

in writ jurisdiction. As a result of the same, the impugned

order cannot be sustained. It is accordingly quashed and

set aside. Rule is made absolute in terms of prayer clause

(a). However, it is directed that it would be open for the

respondent nos. 4 to 7 to institute such proceedings as are

permissible in law, if they are claiming their right, title or

interest in the immovable properties. All contentions in

that behalf of the parties are kept open.

[ S.C. DHARMADHIKARI, J. ]

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Mr Harish vs Smt. Monica Harish Gaba on 19 July, 2011

Bombay High Court
Mr Harish vs Smt. Monica Harish Gaba on 19 July, 2011
Bench: R. M. Savant
                                                                 1


                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                                                   
                                     BENCH AT NAGPUR, NAGPUR.




                                                                                     
                                      WRIT PETITION NO. 1249    /2011




                                                                                    
                      Mr Harish  s/o Nandlal Gaba
                      Aged 42 years,  occu: Business
                      R/o   44/17A, Saraswati Vihar
                      Opp:  Reliance  Web World Mall Road
                      Amritsar (Punjab).  ..                                                     ...PETITIONER




                                                                    
                                          ig                v e r s u s
                                        
                      Smt.  Monica  Harish Gaba
                      Aged 39 years, occu: Hosuewife
                      R/o C/o Laxmandas Narang,
                      Op: Avanti  Hospital, Dhantoli,Nagpur
                      Tah. & Dist. Nagpur.                                                       ...RESPONDENT
       
    



    ............................................................................................................................
                       Mr. H D Dangre,   Advocate   for the petitioner
                       Mr.K M Nankani, Advocate  for  respondent
    .......................................................................................................................





                                                                              CORAM:  R.M.SAVANT, J.

DATED : 19TH JULY,2011,

ORAL JUDGMENT :

Rule. With the consent of the parties, made returnable forthwith

and heard.

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2

2. The above petition takes exception to the order dated 2.12.2010

passed by the learned Principal Judge, Family Court, Nagpur by which

order, the petitioner-herein has been directed to pay Rs.20,000/- per

month towards maintenance pendente lite from the date of the application

till the disposal of the main petition.

3. The facts involved can be stated thus : The marriage between

the petitioner and the respondent was solemnized on 29.11.1993. The

petitioner-husband is resident of Amritsar (Punjab); whereas the

respondent-wife was residing with her parents at Nagpur. The petitioner

and the respondent have a daughter by name, Taniya, who is aged about

15 years. It appears that on account of the marital discord, the respondent

left the matrimonial house on 1.4.2009 along with her daughter Taniya.

The petitioner thereafter filed an application under section 9 of the Hindu

Marriage Act for restitution of conjugal rights in the Court of learned Civil

Judge, Sr.Dn.,Amritsar. It appears that the relations between the parties

came to such a pass that criminal complaints were filed against the

petitioner and his family members. It appears that thereafter the

respondent-wife filed a petition u/s 13 (1) (ia) of the Hindu Marriage

Act for dissolution of marriage and return of stridhan which petition was

numbered as A-445/2009 before the Family Court at Nagpur. In the

said petition, the respondent-wife filed an application which was

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3

numbered as Exh. A under section 24 of the said Act for grant of

maintenance @ Rs. 25,000/- pendente lite and Rs. 50,000/- as litigation

expenses.

4. It was the case of the respondent-wife that the petitioner was

doing business in the name and style of “Taniya Jewellers” and was dealing

in gold and diamond jwellery. It was the case of the respondent that the

monthly income of the petitioner was Rs.1,25,000/- ;wheres the

respondent was at the mercy of her parents and her friends for

survival. It was further the case of the respondent that considering the

lifestyle to which she was used to while staying with the petitioner, a sum

of Rs. 25,000/- be fixed as maintenance pendente lite so that she could

take care of herself and her daughter who is now past 15 and who is

studying in X standard, so that they could have the same life-style

which she was used to while staying with the petitioner. To the said

application, the petitioner filed his reply and inter alia denied the claims

and contentions of the respondent. It was denied that the petitioner was

doing the business in the name and style of “Taniya Jewellers”. It was

further denied that his income was Rs.1,25,000/-. The petitioner annexed

the Income Tax return form for the assessment year 2007 -08 wherein his

income was shown as Rs.1,07, 037/- for the assessment year in question.

It was further the case of the petitioner that the respondent was running

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4

a Boutique, out of which she was earning approximately Rs.12,000

per month.

5. The Family Court considered the said application Exh.8 filed

by the respondent for maintenance pendente lite and considering the

respective cases thought it fit to fix the interim maintenance at

Rs.20,000/- per month. The gist of the reasoning of the Family Court was

that the petitioner herein has not filed any document to show that his

income was Rs.10,000/- per month and on the basis that the income out

of the jewelery shop must be more than Rs.1,00,000/- per month, the

Family Court deemed it fit to fix the maintenance pendente lite in the said

sum of Rs.20,000/- by the impugned order dated 2.12.2010 as indicated

above. It is the said order which is the subject-matter of challenge in the

above petition.

6. Heard learned counsel for the parties. Mr. H D Dangre, learned

counsel for the petitioner sought to raise three contentions: Firstly that

the petition filed in the Family Court, Nagpur was not maintainable in

view of Section 19 of the Hindu Marriage Act, 1955 ; secondly that there

are no pleadings in support of the claim of Rs.25,000/- as maintenance

and thirdly that he has never deserted the respondent and an order of

Rs.5000/- was already operating against him in the domestic violence

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5

proceedings adopted by the respondent.

7. Per contra, it is submitted by Shri Nankani, learned counsel

appearing for the respondent-wife that the impugned order passed by the

Family Court need not be interfered with in the facts and circumstances of

the case, when the petitioner admittedly is not working and has to look

after a 15-year old daughter who is studying in X standard. Learned

counsel would contend that the petitioner herein has very cleverly not

disclosed his income from the business of Taniya Jwellers and has sought

to merely rely upon the return filed under the Income Tax Act. Learned

counsel would contend that in the facts and circumstances of the case, the

interim maintenance fixed at Rs.20,000/- need not be interfered with.

8. Having heard learned counsel for the parties, in my view, the

order fixing interim maintenance need not be interfered with save and

except to the extent that would be mentioned hereinafter:

9. It is pertinent to note that from the documents which the

petitioner himself has filed in the trial Court, it is ex-facie clear that the

petitioner is carrying on business in the name and style of “Taniya

Jewellers”. If it was the case of the petitioner that his income from

the said Jewellery business was Rs.10,000/-, he should have

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6

produced the relevant documents in that behalf. The trial Court in the

absence of any material produced by the respondent was right in drawing

an inference that it is impossible to accept that the income from the

jewelery business is only Rs.10,000 per month. It is further pertinent to

note that the petitioner has specifically averred as regards the life-style

which she was enjoying while she was staying with the petitioner in the

matrimonial home. The petitioner also does not dispute the fact that their

daughter is now 15 years old and is studying in X standard in a reputed

school in the city of Nagpur. Considering the said facts, in my view, the

Family Court has proceeded on the correct premise that the respondent

would be entitled to the same standard which she enjoyed while she was

in the matrimonial home.

10. The fact that the daughter is studying in X standard would also

be a relevant fact while considering the issue of maintenance pendente lite

as the maintenance is sought in respect of respondent-wife as also the

daughter. Learned counsel for the respondent-wife in the course of

arguments submitted that the fees of the school wherein the daughter of

the petitioner and the respondent studying is in the sum of Rs.80,000/- per

year. Considering the said aspect the maintenance pendente lite has to be

commensurate with the said expenses that the respondent wife is

incurring for her own maintenance as well as the maintenance of the

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7

daughter. However, one fact cannot be lost sight of is that the

respondent wife is already getting Rs.5000/- in the proceedings filed under

the Domestic Violence Act by the respondent at Nagpur. Hence, the

maintenance pendente lite is required to be interfered with to the extent of

reducing it by Rs.5,000/- to make it Rs. 15,000/- per month. In my view

the issue of the jurisdiction of the Family Court at Nagpur need not be

gone into while considering the issue of interim maintenance. Save and

except the modification as aforesaid, no interference is called for with the

impugned order dated 2.12.2010 passed by the Family Court. The Writ

Petition is, therefore, allowed to the extent above. Rule is accordingly made

partly absolute. Parties to bear their respective costs.

JUDGE

sahare

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Nihilent Technologies Private … vs Unknown on 18 July, 2011

Bombay High Court
Nihilent Technologies Private … vs Unknown on 18 July, 2011
Bench: J.P. Devadhar, A.A. Sayed
                                                1                          wp10104-10

agk                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               CIVIL APPELLATE JURISDICTION




                                                                               
                                                       
                            WRIT PETITION NO.10104 OF 2010


       Nihilent Technologies Private Limited




                                                      
       having registered office at D Block,
       4th Floor, Weikfield IT City Infopark,
       Nagar Road, Pune - 411 014                                        ..Petitioner.




                                               
             Versus
       1)
                                
             The Dy. Commissioner of Income-tax, 
             Circle - 2, PMT Building, B Wing,
                               
             1st Floor, Shankarsheth Road,
             Swargate, Pune 411 037.
       2)    The Commissioner of Income Tax - II,
           


             PMT Building, B Wing, 1st Floor,
        



             Shankarsheth Road, Swargate,
             Pune 411 037.
       3)    Union of India,
     




             through the Secretary,
             Ministry of Finance, North Block,
             New Delhi - 110 001                                         ..Respondents.





       Mr.S.E. Dastur, Senior Advocate with Mr.Niraj Seth i/by Mint & Confreres for 
       the petitioner.
       Mr.Vimal Gupta for the respondents.



                                                        CORAM : J.P. Devadhar &
                                                                  A.A. Sayed, JJ.   
                                                        DATE     : 18th July, 2011.


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                                                   2                                wp10104-10

    ORAL JUDGMENT : (Per J.P. Devadhar, J.)




                                                                                       

1. Rule. Rule is made returnable forthwith. By consent of parties,

the petition is taken up for final hearing.

2. This petition is filed to challenge the notice dated 29th March

2010 issued under Section 148 of the Income Tax Act, 1961 seeking to

reopen the assessment for assessment year 2003-2004. The petitioner –

assessee has also challenged the order dated 16th December, 2010 whereby

the objections raised by the assessee for reopening of the assessment have

been rejected.

3. The assessee is a private limited company engaged in the

business of development of software. The shares of the assessee company

were held in the initial three years, as follows.


         Share-holders of the petitioner-         31-03-2001 31-03-2002 31-03-2003





                   company 
    Hatch Investments (Mauritius) Ltd.,               99.85%         76.63%            76.25%
    Other share-holders                               0.15%          23.37%            23.75%
                                        TOTAL         100%            100%               100%





The share-holding of Hatch Investments (Mauritius) Limited

(‘Hatch Investments’ for short) at 99.85% on as on 31st March 2001 was

reduced to 76.63% as on 31st March 2002 on account of additional shares

issued by the assessee company to the remaining shareholders, thereby

increasing the shareholding of other shareholders from 0.15% to 23.37%. It

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3 wp10104-10

may be noted that 0.15% shares as on 31st March 2001 were held by 11

shareholders. Neither, Hatch Investments nor other shareholders have sold

their shares to any third parties, save and except that one shareholder,

namely, Nimisha Singh had transferred her 100 shares in favour of another

shareholder viz. L.C. Singh. Thus, as on 31st March 2002 the number of

other shareholders of the assessee company was reduced from 11 to 10

shareholders. Even in the year ending on 31st March 2003, none of the

shareholders of the assessee Company had sold or transferred their shares in

the assessee Company.

4. The assessment for assessment year 2003-04 was completed

under Section 143(3) of the Act on 31st March 2006, wherein the carried

forward loss incurred by the assessee in assessment year 2001-02 was

allowed to be set off.

5. By the impugned notice dated 29th March 2010 assessment for

assessment year 2003-2004 is sought to be reopened by recording following

reasons :

“In accordance with the provisions contained in section 79
of the I.T. Act, where a change in share holding has taken place
in a previous year in the case of a company not being a company
in which the Public are substantially interested, no loss incurred
in any previous year shall be carried forward and set off against
the income of the previous year unless on the last day of the
previous year which the shares of the company carry in not less
than fifty one percent of the voting power were beneficially held
by persons, who beneficially held shares of the company
carrying not less than 51% of the voting power on the last day of
the year in which loss was incurred.

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4 wp10104-10

M/s.Nihilent Technologies P. Ltd. promoted by Shri L.C.

Singh in May 2000 and as per share holders agreement out of
the authorized capital of Rs.20,00,00,000/-, the company has

issued 15.1% shares to the promoters and stock management
team as a sweat equity shares and 10% to EXOP trust for
employees on approved stock plan. The balance 74.9% shares
were brought by Nedcore group through Nedcore bank Ltd.
South Africa through Hatch Investment (Mauritius) as and by

31-03-2002 the same was increased to 76.25%. During the year
2002-03, Nedbank Ltd. has diverted its share in Hatch
Investment (Mauritius) by selling off 50% of the above holding
in the assessee company i.e. 38.125% to Dimension Data, PLC,

UK. In other words, the effective share holding of Ned Bank Ltd
in the assessee company which stood at 76.25% in the beginning

was gone below 51% to 38.125%. As such the assessee
company has barred from setting of the previous year losses and
carry forward of the same.

In the assessment for the year 2003-04 completed under
Section 143(3) the department has allowed set off of losses
pertaining to A.Y. 2001-02 amounting to Rs.5,25,42,452/- to

arrive at NIL income and also allowed benefit of carry forward
of Rs.4,25,18,048/- for the unabsorbed portion. Therefore, in

order to protect the interest of Revenue, the assessment of the
case for the A.Y. 2003-04 is reopened by issuing notice u/s.148.”

6. From the aforesaid reasons, it is seen that the only ground for

reopening of the assessment is that in the assessment year in question, there

is a change in the shareholding of the assessee Company of not less than 51%

from the shareholding in the assessment year (AY 2001-02) in which the loss

was incurred and, therefore, the loss incurred in the assessment year 2001-02

cannot be allowed to be set off in the assessment year in question.

7. The argument of the Revenue is that the assessee had failed to

disclose that the shareholding of Hatch Investments in the assessment year

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5 wp10104-10

2001-02 was 99.85% and the same was reduced to 38.125% in assessment

year 2003-04, because Hatch Investments, being a wholly owned subsidiary

of Nedcor Bank Limited, South Africa, the Nedcor Bank Limited during

assessment year 2003-04 had transferred 50% shares in Hatch Investments to

Dimension Data PLC, UK (‘Dimension’ for short) thus the effective

shareholding of Nedcor Bank Limited in the assessee Company stood reduced

to 38.125% and, hence, Section 79 of the Act was attracted.

8.

The argument on behalf of the assessee is that all the relevant

facts were disclosed in the assessment proceedings for assessment year

2003-04 and, therefore, it cannot be said that there was any failure on the

part of the assessee to disclose fully and truly all material facts and

consequently, reopening of the assessment beyond four years from the end of

the relevant assessment year is invalid. It is also contended that in the facts

of the present case, Section 79 of the Act is not attracted.

9. From the notes to the financial statements annexed to the return

of income for assessment year 2003-2004, it is seen that the assessee had

disclosed as follows :

“1.1 Nihilent Technologies Private Limited (‘NTPL’ or the
Company) is a company incorporated under the Companies Act,
1956 (‘The Act‘) in India, Hatch Investments (Mauritius) limited
owns 76.25% equity in the Company. Further, Nedbank Limited
(Nedbank’) and Dimension Data (‘Di-Data’) each own 50%
equity stake in Hatch Investments (Mauritius) limited. The
balance shares of NTPL are held by the employees and
significant members of the Company.”

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6 wp10104-10

10. Moreover, during the course of assessment proceedings for

assessment year 2003-04, the Assessing Officer by his letter dated 27th

September 2005 specifically called upon the assessee to furnish the share

holding pattern as on 31st March 2003. The assessee in its reply letter dated

17th November 2005 stated thus :

“Nihilent Technologies Private Limited (Company) is
incorporated in India, and is in the area of Software services and
its export. The Company was promoted by Mr. L.C. Singh

towards the end of May 2000 along with a group of
professionals and support of the Nedcor Group of South Africa.

We would like to bring your kind attention that during the year
2002-03, Nedbank Limited has divested its stake in Hatch
Investments (Mauritius) Limited by selling of 50% shares of

Dimension Data, PLC, UK. In a view of above, effective
shareholding of Nedbank in Nihilent Technologies Private
Limited (NTPL) has been reduced from 76.25% to 38.125% as
on 31st March 2003.”

11. Thus, it is evident that during the course of assessment

proceedings for assessment year 2003-04 all material facts relating to the

transfer of shares of Hatch Investments by Nedcor Bank Limited to

Dimension, as well as the fact that the effective shareholding of Nedcor Bank

Limited in the assessee Company has been reduced from 76.25% to 38.125%

as on 31st March 2003 was disclosed to the assessing officer. Thus, the fact

that the effective shareholding of Nedcor Bank Limited in the assessee

company has gone down below 51% was specifically brought to the notice of

the assessing officer by the assessee. In these circumstances, it cannot be said

that there was any failure on the part of the assessee to disclose fully and

truly all material facts necessary for the assessment. If there is no failure to

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7 wp10104-10

disclose fully and truly all material facts necessary for the purpose of

assessment, then, as per the proviso to Section 147 of the Act reopening of

the assessment beyond four years from the end of the relevant assessment

year cannot be sustained.

12. In the present case, the assessment for assessment year 203-04 is

sought to be reopened beyond four years from the end of the relevant

assessment year. Since there is no failure on the part of the assessee to

disclose fully and truly all material facts, the reopening of the assessment

beyond four years from the end of the relevant assessment year cannot be

sustained.

13. In the result, the notice dated 29th March 2010 issued under

Section 148 of the Act, as also the order dated 16th December 2010 rejecting

the objections raised by the assessee for reopening of the assessment are

quashed and set aside.

14. Rule is made absolute in the above terms with no order as to

costs.

                            (A.A. Sayed, J.)                                 (J.P. Devadhar, J.)




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The General Manager (Telecom); vs Zarir on 15 July, 2011

Bombay High Court
The General Manager (Telecom); vs Zarir on 15 July, 2011
Bench: R. M. Savant
     1507wp1721.11.odt                                                                               1/10


                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                          
                              NAGPUR BENCH, NAGPUR

                      WRIT PETITION NOS.1721/2011 & 3055/2011




                                                                
                               ------------------------------------------------

WRIT PETITION NO.1721/2011

PETITIONERS: 1. The General Manager (Telecom);

Telecom Bhavan, Zero Mile,
Civil Lines, Nagpur – 440001.

ig 2. The Divisional Engineer (Telecom),
Microwave Project,
C.T.O. Compound, Nagpur – 1.

[As mentioned in statement of claim]

…VERSUS…

RESPONDENTS : 1. Zarir S/o Pesi Mawalwala,
Aged about 43 years,

R/o. Quarter No.72, New Empress
Mill Quarters, Bezonbagh,
Nagpur.

2. The Central Government Industrial

Tribunal-cum-Labour Court, Nagpur.

3. Shri Y. R. Bagade,
District Secretary,
Bharat Sanchar Nigam Ltd. Worker’ Union,

P & T Colony, Qr. No.A/8, T-I Katol Road,
Nagpur.

—————————————————————————————————–

Mrs. B. P. Maldhure, learned counsel for the petitioners.
Shri. P. D. Meghe, learned counsel for the respondent Nos.1 and 3.

—————————————————————————————————–

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      1507wp1721.11.odt                                                                               2/10


                                 WRIT PETITION NO.3055/2011




                                                                                          
     PETITIONERS:                 1.      Zarir S/o Pesi Mawalwala,
                                          Aged about 45 years,




                                                                
                                          resident of Quarter No.72, 
                                          New Empress Mills Quarters, 
                                          Bezonbagh, Nagpur. 




                                                               
                                  2.      Shri Y. R. Bagade, 
                                          District Secretary, 
                                          BSNL Workers Union, 
                                          P & T Colony, Quarter No.A/8-1, 
                                          Katol Road, Nagpur. 




                                               
                                          ...VERSUS... 

     RESPONDENTS :
                          ig      1.      General Manager Telecom
                                          (Now Principal General Manger Telecom),
                                          BSNL, Telecom Bhavan, 
                        
                                          '0' Mile, Civil Lines, 
                                          Nagpur.

                                  2.      The Divisional Engineer Telecom,
      

                                          Microwave Project, CTO Compound, 
                                          Nagpur. 
   



—————————————————————————————————–

Shri P. D. Meghe, learned counsel for the petitioners.
Mrs. B. P. Maldhure, learned counsel for the respondents

—————————————————————————————————–

CORAM : R. M. SAVANT J.

                                                   DATED   : 15.07.2011 





     O R A L     J U D G M E N T



     1)        Rule   with   the   consent   of   the   parties   made   returnable   forthwith   and 

     heard. 




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      1507wp1721.11.odt                                                                             3/10


     2)       The above petitions filed under Articles 226 and 227 of the Constitution 




                                                                                        

of India take exception to the order dated 20/01/2011, by which the Presiding

Officer, Central Government Industrial Tribunal, Nagpur answered the

Reference, which was referred to it for adjudication, in favour of the workman

i.e. the petitioner No.1 in Writ Petition No.3055/2011.

3) The petitioner No.1 in Writ Petition No.3055 was initially appointed on

21/01/1986 as casual labour with the Chief General Manager, Railway

Electrification Project Telecom and thereafter he was transferred to the

Divisional Engineer Telecom, Microwave (Survey) from the year 1989. He has

worked with the respondent BSNL up to 25/06/1993 when he was given the

temporary status by a letter dated 02/03/1988 under the provisions of the

Casual Labourer (Grant of Temporary Status and Regularization) Scheme. It

appears that by order dated 18/02/1989, regularized 69 mazdoors similarly

situated as the petitioner No.1 was, issued with the order of regularization,

however, the petitioner No.1 was not. It is the case of the petitioner No.1 that

he was deprived of various facilities of the regular employees and suddenly on

02/12/2002 the BSNL terminated his services with immediate effect by written

order on payment of one month salary on 08/11/2002. He submitted a

representation against the said termination as he has already put in 16 years of

service continuously. It was his case that prior to the said termination, no

chargesheet was issued to him and if any enquiry was completed, then such

enquiry was conducted without compliance of principles of natural justice, as at

no point of time the depositions or statements were recorded on behalf of the

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party No.1 in his presence and no opportunity of cross-examination was granted

to him and thus the alleged enquiry was in utter disregard to the settled

principles applicable to the conduct of the departmental enquiries. The issue of

the termination of the services of the petitioner No.1 was referred to the Central

Government Industrial Tribunal, Nagpur. The statement of claim was

accordingly filed by the petitioner No.1 in the said Reference.

4) In the written statement filed by the BSNL, the said respondents

admitted that the petitioner was continuously working from 21/01/1986 till

02/11/2002 and his services were utilized as casual motor driver on daily rates

basis. It was the case of the respondents that an incident took place on

26/07/2002 in respect of the loss of some laptops from the vehicle, which the

petitioner No.1 was driving and, therefore, an enquiry was initiated against the

petitioner No.1 and after following the procedure, his services came to be

terminated. It is further the case of the respondents that the procedure as

prescribed under the Central Civil Services (Temporary Services) Rules, 1965

was applicable, as the petitioner No.1 at the relevant time was working as a

temporary status mazdoor, which status stands apart from the status of a

confirmed employee. It was further the case of the respondents that to such a

class of employee the chargesheet also need not be issued and a termination can

be ordered in terms of the said Rules.

5) The said Reference was tried by the Central Government Industrial

Tribunal, Nagpur and by the impugned judgment and order dated 20/01/2011,

the said Reference came to be allowed inasmuch as the termination of the

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petitioner No.1 dated 02/11/2002 was set aside. It was ordered that the

petitioner No.1 be reinstated in service with continuity in service including

regularization of service within one month of the publication of the Award. As

indicated above, it is the said order, which is challenged in both the petitions, in

so far as Writ Petition No.3055/2011 is concerned, the petitioner No.1-workman

is aggrieved by the fact that full back wages have been denied to him and in so

far as Writ Petition No.1721/2011 is concerned, the petitioners BSNL are

aggrieved by the impugned Award of the Tribunal in toto.

6)

Heard the learned counsel for the parties.

The learned counsel for the petitioner in the Writ Petition No.3055/2011

Shri Meghe would contend that once the termination was set aside on the

ground that the said termination order was passed in violation of the principles

of natural justice, the natural corollary to the same would be the reinstatement

of the petitioner with full back wages. For the said purposes Shri Meghe, the

learned counsel for the petitioner placed reliance on the judgment of the Apex

Court reported in 2007 AIR SCW 137 in the matter of J. K. Synthetics Ltd. v. K.

P. Agrawal and anr. wherein the Apex Court has held that once the Labour

Court comes to a conclusion that the charges are not proved, the grant of back

wages in such cases would be automatic. The learned counsel would therefore

contend that the Central Government Industrial Tribunal, Nagpur erred in not

awarding full back wages, in so far as the challenge to the reinstatement is

concerned, the learned counsel for the petitioner workman Shri Meghe

submitted that in view of the fact that no modicum of procedure was followed

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prior to the termination of the services of the petitioner No.1, the Award of the

Central Government Industrial Tribunal in directing the reinstatement with

continuity of service cannot be faulted with.

Per contra, it is submitted by learned counsel Mrs. B.P. Maldhure for the

respondent BSNL that it was incumbent on the part of the Tribunal to frame a

preliminary issue as regards the fairness of the enquiry as to whether the

enquiry was just, fair and proper according to the learned counsel if the Tribunal

had recorded a finding against the respondent BSNL, it would have been open

for the respondent BSNL to prove the charges by leading evidence in Court. The

learned counsel would contend that though in terms of the status of the

petitioner No.1, an elaborate procedure need not be followed nevertheless the

BSNL has followed the procedure by holding an enquiry and thereafter the

termination order dated 02/11/2002 came to be issued. The learned counsel

would then contend that in view of the fact that the preliminary issue as to

whether the enquiry was just, fair and proper was not framed, the matter be

relegated back to the Tribunal for a de novo consideration.

7) Having considered the rival contentions advanced by the learned counsel

appearing for the petitioner workman and the respondent BSNL, I have

bestowed my anxious consideration to the same.

In the instant case, as can be seen from the record the cause for the

termination order was the enquiry conducted on account of the loss of some

laptops from the vehicle, which the petitioner workman was driving. The stand

of the respondent BSNL as can be seen from the record is consistent throughout

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viz. that the petitioner No.1 was a temporary status mazdoor and, therefore, the

Central Civil Services (Temporary Services) Rules, 1965 was applicable. It is on

the application of the said Rules, that it is the stand of the BSNL that no enquiry

is postulated against such a temporary status mazdoor and his services could

have been terminated by giving him one month’s notice with pay.

8) However, the fact of the matter is that an equiry has been held into

complicity of the petitioner in the loss of the laptops in the said enquiry,

witnesses were examined and who were admittedly not offered for cross-

examination to the petitioner. It is further pertinent to note that the enquiry was

not proceeded with a chargesheet, which ought to be issued to the petitioner. It

is an admitted fact that it is on the basis of the said enquiry that the termination

order dated 02/11/2002 had been issued to the petitioner, the said termination

order was outcome of the said enquiry, which has been conducted against the

petitioner. The Tribunal has gone into the said aspect and recorded a finding,

which can be seen from paragraph No.9 of the impugned Award. The Tribunal

has recorded that no chargesheet has been issued for the alleged misconduct,

the petitioner was not intimated the appointment of the enquiry officer and that

the workman was not given any chance for cross-examination of the witnesses

or to lead evidence in his defence. The Tribunal, therefore, reached a conclusion

that the workman was never given any reasonable opportunity to defend himself

in the said enquiry.

9) The Tribunal has also taken into consideration the fact that though it was

stated that an FIR has been filed with the Police, nothing was put on record to

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show as to what was the result of the investigation and as to whether the

workman was held responsible by the Police for such theft or that the theft of

the laptops was committed due to the negligence of the workman. It is on the

basis of the said findings that the Tribunal has quashed and set aside the

termination order dated 02/11/2002 and was ordered the reinstatement of the

respondent No.1 with continuity of service and regularization.

10) In so far as the submission of the learned counsel for the respondent

BSNL is concerned, that the Tribunal ought to have framed the preliminary issue

as regards the fairness of the enquiry and if the said issue was to have been held

against the respondent BSNL, the Tribunal should have granted liberty to the

BSNL to prove the misconduct in Court. In my view, in the context of the fact

that the defence of the respondent BSNL is replete with the fact that the

petitioner workman was a temporary mazdoor and was governed by the

Temporary Service Rules and in the teeth of the stand of the respondent BSNL

that even an enquiry was not contemplated prior to the services of the petitioner

workman, the said submission cannot be countenanced. In making the said

submission, the respondent BSNL is approbating and reprobating, on one hand,

it is sought to be contended that no enquiry is postulated against a workman of

the kind to which the petitioner belongs and on the other hand, it is sought to be

contended that if the enquiry was not found to be just and proper, the petitioner

No.1 ought to have been given the opportunity to lead evidence in Court. In my

view, both the things cannot be urged at the same time either the respondent

BSNL sticks to its stand that it is entitled to terminate the services without

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following the usual procedure of holding the enquiry, etc. or adopts the stand

that an enquiry is contemplated. Having chosen to hold the enquiry without

adhering to the basic principles of issuing a chargesheet, etc. and the said

procedure having been found to be illegal and in violation of the principles of

natural justice by the Tribunal, it is now not open to the BSNL to contend that it

should have been permitted to lead evidence in Court. In my view, there is no

substance in the said contention of the respondent BSNL. The Tribunal also took

into consideration the conditions applicable to a temporary employee of the

BSNL which provide that a temporary employees services can be terminated by

holding an enquiry into the misconduct alleged by giving him a reasonable

opportunity.

11) However, in so far as the issue of regularization is concerned, that was an

issue, which was not even referred to the Tribunal in the Reference order. It is

also required to be noted that in the statement of claim what is sought by the

petitioner workman is only reinstatement and continuity of service. Hence, in

ordering regularization, the Tribunal has gone beyond the scope of Reference

and the statement of claim as filed before it. The learned counsel for the

petitioner Shri Meghe fairly accepts the said position. The said direction would

therefore have to be quashed and set aside.

12) In so far as the aspect of the back wages is concerned, the Tribunal

considered the fact that the petitioner had not averred that he was unemployed

during the pendency of the Reference and in that view of the matter the Tribunal

was of the opinion that the interest of justice would be served, if the back wages

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are denied to the petitioner workman. It is well settled that the grant or refusal

of the back wages is within the discretion of the Tribunal to be exercised in the

facts and circumstances of the present case. In my view, in the facts and

circumstances of the case, the discretion exercised by the Tribunal in refusing

the back wages cannot be faulted with.

13) In that view of the matter, the Writ Petition No.3055/2011 is dismissed.

Rule is discharged. In so far as Writ Petition No.1721/2011, which is filed by

the BSNL is concerned, the same is partly allowed to the extent that the

direction of regularization issued in the impugned order is quashed and set

aside. Rule is accordingly made partly absolute in the said writ petition in the

said terms with parties to bear their respective costs.

14) It is expected that since sufficient time has already elapsed, the

respondent BSNL would implement the Award in question as modified herein

above within a period of one month from date.

JUDGE

KHUNTE

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Gaimukh Deosthan. A Private Trust vs Yogesh on 14 July, 2011

Bombay High Court
Gaimukh Deosthan. A Private Trust vs Yogesh on 14 July, 2011
Bench: R. M. Savant
     1407wp3182.11.odt                                                                                1/6




                                                                                          
                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              NAGPUR BENCH, NAGPUR




                                                                
                                 WRIT PETITION NO.3182/2011

     PETITIONERS :-                 Gaimukh Deosthan.  A Private Trust,
                                    Through its Occupants/Manager,




                                                               
                                    1. Shri Manoharprasad Raghuvirprasad Pande,
                                       aged about 76 years, 
                                       Occupation : Agriculturist,




                                               
                                       Resident of Pandey Layout, 
                                       Nagpur. 
                          ig        2. Shri Mukeshprasad S/o Ishwariprasad Pande,
                                       Aged about 52 years,
                                       Occupation: Agriculturist,
                        
                                       R/o. Sanjeevan Apartment,
                                       Shankarnagar, Nagpur. 

                                               ...VERSUS... 
      


     RESPONDENT :-                  1. Yogesh S/o Ishwarprasad Pande,
                                       Aged about 58 years,
   



                                       Occupation: Business,

                                    2. Mrs. Meena W/o Yogesh Pande,
                                       Aged about 55 years,





                                       Occupation: Household, 

                                    3. Akshay S/o Yogesh Pande,
                                       Aged 31 years,
                                       Occupation: Business,





                                         All resident of Buty Chawl,
                                         Sitabuldi, Nagpur. 

     -----------------------------------------------------------------------------------------------------

Shri P. V. Vaidya, learned counsel for the petitioners.
Shri Ramesh Darda, learned counsel for the respondents.

—————————————————————————————————–

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                                              CORAM : R. M. SAVANT J.
                                              DATED  : 14.07.2011 




                                                          
     O R A L    J U D G M E N T




                                                         
     1)      Rule with the consent of the parties made returnable forthwith and 

     heard. 




                                           
     2)      This petition filed under Articles 226 and 227 of the Constitution of 
                       

India takes exception to the order dated 19/03/2011 passed by the

learned 2nd Joint Civil Judge, Senior Division, Nagpur, by which order the

application for amendment of the plaint filed by the petitioners came to

be rejected.

3) The facts involved in the above petition in brief can be stated thus –

The petitioner-Trust was created by one Ganpatrao Pande. The

petitioner-Trust was having its properties at several places the said

properties included the property known as Ganesh Bhuvan, Civil Lines,

Nagpur. It is the case of the petitioners that the respondents herein are

not at all concerned with the said property, Ganesh Bhuvan. It is further

the case of the petitioners that the respondents entered into the said

premises of Ganesh Bhuvan and took forcible possession of an area of

3000 sq.ft. on 05/05/2004. This resulted in, the plaintiffs-petitioners

filed Special Civil Suit No.777/2004 under Section 6 of the Specific Relief

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Act. It is the case of the plaintiffs that though the suit has been filed

under Section 6 of the Specific Relief Act, through inadvertence the prayer

for restoration of possession and removal of illegal construction and

encroachment remained to be made. It is further the case of the plaintiffs

that the defendants considering that it was a suit under Section 6 of the

Specific Relief Act and therefore, being also one for possession, filed the

written statement accordingly. In the said suit the plaintiffs filed affidavit

on evidence and further examination-in-chief on behalf of the plaintiffs

was also recorded. It appears that the respondents herein moved an

application for dismissal of the suit on the ground that there was no

prayer for possession in the suit and, therefore, the suit filed under

Section 6 of the Specific Relief Act was not maintainable. The petitioners

thereafter on 16th October, 2010 moved an application for amendment of

the plaint.

4) As indicated above, the trial Court has rejected the said application

by the impugned order dated 19/03/2011. The sum and substance of the

reasons cited by the trial Court is that in moving the said application for

amendment, there was considerable delay and since the suit is fixed for

hearing, the said amendment could not be allowed. The trial Court also

held that the amendment now sought to be introduced could not be said

to be on the basis of subsequent events which had taken place.

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      1407wp3182.11.odt                                                                            4/6




                                                                                      
     5)      Heard the learned counsel for the parties. 

Learned counsel for the petitioners Shri Vaidya contended that it is

through sheer inadvertence that the prayer for possession remained to be

incorporated in the plaint, though the suit is one filed under Section 6 of

the Specific Relief Act. It is further sought to be contended by Shri

Vaidya that since the defendants are aware that the suit is one filed under

Section 6 of the Specific Relief Act, the incorporation of a prayer for

possession would cause them no prejudice and would make no material

difference as they have already filed their written statement dealing with

the said aspect.

Per contra, the order passed by the trial Court is supported by

Shri Darda, the learned counsel for the respondent Nos.1 to 3 on the

ground that the prayer for possession, if now allowed to be introduced,

would be barred by limitation and, therefore, the prayer, which is barred

by limitation, cannot be permitted.

It is further submitted by Shri Darda that in an Appeal from Order,

this Court by order dated 6th April, 2010 has protected the possession of

the respondents herein in respect of an area of 7000 sq.ft. and lastly Shri

Darda contended that the issue of limitation which the respondents want

to urge in respect of the suit, as originally filed by the petitioners, would

be taken away.

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      1407wp3182.11.odt                                                                               5/6




                                                                                        
     CONSIDERATION :

     6)       It is required to be noted that the suit filed by the petitioners is on 




                                                               

the basis of a forcible possession allegedly taken by the respondents on

05/05/2004. The suit, therefore, being one under Section 6 of the

Specific Relief Act, it is intrinsic to such a suit that the possession be

restored to the plaintiff, if he succeeds in proving that there was a forcible

dispossession. Therefore, the contention of the learned counsel for the

petitioners Shri Vaidya, viz. it is crucial inadvertence that the said prayer

for possession was not made, though the suit is one filed under Section 6

of the Specific Relief Act, therefore, deserves acceptance. In so far as the

contentions of the learned counsel for the respondents are concerned, it

would always be open for the respondents to urge the issue of limitation

and merely because the amendment application is allowed, the said right

of the respondents cannot be said to be taken away. It is well settled by

the catena of judgments of this Court and the Apex Court that the Court

should be liberal in allowing the amendment, more so when they would

result in a just decision of a case.

7) In my view, the application for amendment so as to introduce a

prayer for possession is necessary for a just decision in the said suit. As

otherwise if the said prayer is not introduced, it would not finally and

effectively determine the controversy between the parties. In that view of

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the matter, the above petition is required to be allowed and accordingly

allowed. Resultantly the impugned order dated 19/03/2011 is set aside

and the amendment application Exhibit-83 is allowed.

8) The respondents would be at liberty to file additional written

statement, if so advised consequent to the amendment.

9) Rule is accordingly made absolute in the aforesaid terms with

parties to bear their respective costs.

JUDGE

KHUNTE

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