{"id":166166,"date":"2010-10-08T00:00:00","date_gmt":"2010-10-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dilipbhai-vs-superintendent-on-8-october-2010"},"modified":"2016-06-24T22:58:09","modified_gmt":"2016-06-24T17:28:09","slug":"dilipbhai-vs-superintendent-on-8-october-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dilipbhai-vs-superintendent-on-8-october-2010","title":{"rendered":"Dilipbhai vs Superintendent on 8 October, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Dilipbhai vs Superintendent on 8 October, 2010<\/div>\n
Author: H.K.Rathod,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/9272\/2010\t 4\/ 9\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 9272 of 2010\n \n\n \n \n=========================================================\n\n \n\nDILIPBHAI\nKAMALKANT KARNIK - Petitioner(s)\n \n\nVersus\n \n\nSUPERINTENDENT\n& 1 - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nSUDHANSHU S PATEL for\nPetitioner(s) : 1, \nMR RAJU K KOTHARI for Respondent(s) : 1 -\n2. \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE H.K.RATHOD\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 08\/10\/2010 \n\n \n\n \n \nORAL\nORDER<\/pre>\n
Heard
\n\tlearned advocate Mr. SS Patel on behalf of petitioner, learned
\n\tadvocate Mr. RK Kothari appearing for respondent no. 1 and 2.  The
\n\tAffidavit in reply is filed by respondent no. 2, page 47 to 68.
\n\tThereafter, affidavit in rejoinder is also filed by petitioner at
\n\tpage 69 to 74.\n<\/p>\n
I
\n\thave considered submission made by both learned advocates and
\n\tperused contention raised by present petition as well as averment
\n\tmade in reply and rejoinder, which are produced on record by
\n\trespective parties. The question raised and involved in present
\n\tpetition require detailed examination by this Court.  Hence, Rule.\n<\/p>\n
In
\n\tthis case petitioner was working with Indian Oil Corporation Limited
\n\tas Dy. Manager when petitioner opted for Voluntary retirement after
\n\tcompletion of 24 years of his service because of he is having
\n\tserious health problem (Heart) dated 16\/2\/2002.  The petitioner
\n\treceived an amount of Rs. 12,65,000\/- towards payment of his
\n\taccumulated Provident Fund from his employer vide cheque no. 8683
\n\tdated 29\/7\/2004.  One Mr. T. A. Shah authorized agent of Postal
\n\tDepartment having agency code no. 4420\/2001 alongwith one Mr.
\n\tRakeshbhai has visited at petitioner’s resident and had advised to
\n\tdeposit amount in Senior Citizen Saving Scheme of 2004 as petitioner
\n\twas entitled to invest under said scheme which was specially for
\n\tSenior Citizen and person who have attended age of 55 years or more
\n\tand who have retired under Voluntary Retirement Scheme which was
\n\tfetching interest at the rate of 9% interest per annum.  The
\n\tinterest is to be paid quarterly.  The petitioner being a Heart
\n\tpatient, had deposited entire amount of Rs. 12,65,000\/- with Postal
\n\tDepartment, District Post Office, respondent no. 2 which was nearest
\n\tto his resident on 4-7\/5\/2005.  This deposit was accepted by
\n\trespondent no. 2 under Senior Citizen Saving Scheme 2004 and had
\n\topen account in name of petitioner vide A\/c no. 1450154 on same day
\n\tand passbook was issued to petitioner.  The passbook was containing
\n\tentire details i.e. amount of deposit, date of opening of account
\n\tand date of maturity. The name of nominees, PNR  number, amount of
\n\tinterest to be paid quarterly along with particular of retirement
\n\torder.  On 30\/6\/2005, petitioner had received amount of Rs. 18,091\/-
\n\ttowards interest upto said date and then after every quarterly Rs.
\n\t28,463\/- was received upto 31\/3\/2010.  The maturity date was
\n\t4\/5\/2010 after completion of six years.  But on 5\/5\/2010, petitioner
\n\twas not paid principle amount deposited Rs. 12,65,000\/- but
\n\tpetitioner had received communication from office of respondent no.
\n\t1 being Disc-SCSS-004-10-11-A dated 12\/7\/2010 stating that there is
\n\ta irregularities in opening Senior Citizen Savings Scheme Account on
\n\t5\/5\/2010.  The reason which has been given by respondent for said
\n\taccount ought to have been opened on or before 26\/11\/2004 as date of
\n\tretirement of petitioner was 29\/7\/2004.  Therefore, interest amount
\n\tRs. 5,30,475\/- which has been received by petitioner is required to
\n\tbe recovered from petitioner by respondent.  Therefore, present
\n\tpetition is preferred by petitioner challenging aforesaid order
\n\tdated 12\/7\/2010.\n<\/p>\n
Against
\n\tthat Affidavit in reply is filed by respondent raising same
\n\tcontention that account is opened by such individuals within a
\n\tperiod of one month from date of receipt of retirement benefits and
\n\tproof of date of disbursal of such retirement benefits. Therefore,
\n\tpetitioner has not fulfilled other specific condition as per above
\n\tRules. As per scheme, petitioner ought to have opened account on or
\n\tbefore 26\/11\/2004 because petitioner was retired from service on
\n\t29\/7\/2004, which was mandatory being crucial date for opening
\n\taccount i.e. on 26\/11\/2004.  According to respondent, it is a duty
\n\tof authorized agent to know all relevant rules of each and every
\n\tscheme, for which, they are authorized to procure the business.\n<\/p>\n
In
\n\tlight of this objection raised by respondent, at this stage, this
\n\tCourt has considered question whether petitioner is entitled interim
\n\trelief as prayed in present petition or not?  Learned advocate Mr.
\n\tSS Patel relied upon decision of this Court in case of Union of
\n\tIndia Vs. Avindharbhai P Shah in LPA no. 813\/1999 and LPA no.
\n\t847\/1999 dated 21\/9\/2000 where identical question has been examined
\n\tby this Court in para 3 and 4 which are quoted as under:\n<\/p>\n
 3.\tWe
\n\tfind that the factum that  the  accounts were opened  through the
\n\tPower of Attorney holder had not been suppressed or concealed and
\n\tthe Department knew  it  very well  at the time when the Account was
\n\topened that it was being opened through the Power of Attorney
\n\tholder.  After the Account has remained operative for  number  of
\n\tyears and  the  deposits  have  been  accepted therein, when it
\n\tcomes to the question of closure of the Account, to  deny the
\n\tpayment  of  the  interest  on  the  ground that the opening of the
\n\tAccount itself was irregular and  that  it was  contrary  to the
\n\tclarifications given by the Finance Department, cannot be said to be
\n\tjustified.  The  learned  Single  Judge  has  given reasons in
\n\tdetail in para 7, 8, and 9 of the impugned order for allowing the
\n\tpetitions. The  learned  Single Judge has also mentioned in the body
\n\tof the order that the matter was covered by  two  earlier decisions
\n\tof   this   Court,   i.e.    in  Special  Civil Application No.
\n\t6794 of 1987 decided on 2nd  March  1988 and  in Special Civil
\n\tApplication No.3088 of 1988 decided on 24th December 1993.    Even
\n\tif  it  is  assumed  that opening of the Account was contrary to the
\n\tclarifications issued  by  the  Finance  Department and that the
\n\tAccount could not be opened through the Power of Attorney holder, it
\n\tmay entail an action against the officials who did not adhere to the
\n\tclarifications of  the  Finance  Department  but  the  members  of
\n\tthe  public  who  come to open the Account in a National Savings
\n\tScheme cannot be told after number of years when they want to close
\n\tthe Account  that  they will not be entitled to any interest and the
\n\tmembers of  the  public  at  large  cannot  be made to suffer any
\n\tprejudice on account of such violations of no significant
\n\tconsequence.    Even   otherwise,   if   there   is   any
\n\tirregularity  in  the  opening  of the Account, it cannot entail in
\n\tthe forfeiture of the interest accrued  on  the deposits  made
\n\ttherein  for  no fault on the part of the person who opened the
\n\tAccount  or  on  the  part  of  the person  through whom the Account
\n\twas opened, unless it is made  out  that  any  important  or
\n\tmaterial
\n\tfact was suppressed or concealed which is not the case against the
\n\toriginal petitioners.\n<\/p>\n
4.\tWe fully agree with  the  reasons  given  by the  learned  Single  Judge  and  do  not  find  any reason to interfere with the order passed  by  the  learned  Single Judge. There  is  no  merit in these two Letters Patent Appeals, so far as the main claim is concerned. So far as the grant of cost of Rs.2,000\/- each in each of these parties is  concerned,  Mr.Satyan  Thakkar  appearing on behalf of  the  original  petitioners,  i.e.  respondents  herein has stated that the respondents in each  of  these two  Letters  Patent Appeals would not claim the cost and he waives and foregoes the cost as has  been  awarded  by the learned  Single Judge.  Thus the order with regard to the payment of costs to  the  appellants  is  not  to  be enforced against the appellants and we order accordingly.\n<\/p>\n
Learned
\n\tadvocate Mr. Patel also relied upon decision of this Court in
\n\tidentical facts and circumstances in case of Pranit K Nanavati Vs.
\n\tUnion of India in SCA no. 29735\/2007 dated 23\/8\/2010 where para 3, 6
\n\tand 7 are quoted as under:\n<\/p>\n
3.\tIt
\nis the case on behalf of the petitioner that the petitioner made
\nvarious deposits from 02\/04\/1988 to 31\/03\/1992 under the National
\nSavings Scheme, 1987 to the tune of Rs. 90,000\/-  in NSS Account No.
\n9141 opened by the petitioner through his power of attorney.  It is
\nthe case on behalf of the petitioner that the total amount with
\ninterest accrued on the principal amount as on 01\/04\/2006 was Rs.
\n4,14,873\/-, which is illegally withheld by the respondents allegedly
\non the ground that the amount deposited by the petitioner, through
\nhis father Shri K.S. Nanavati as his power of attorney holder, was
\nitself contrary to the rules of National Savings Scheme and,
\ntherefore, the interest amount accrued cannot be disbursed.  Being
\naggrieved and dissatisfied with the above, the petitioner has
\npreferred the present Special Civil Application.\n<\/p>\n
6.\tHaving
\nheard the leaned advocates appearing on behalf of the respective
\nparties and considering the controversy raised in the present
\npetition, it appears that the controversy raised in the present
\npetition is now not res integra and is squarely covered by the
\ndecision of the Division Bench of this Court dated 21\/09\/2000 in
\nLetters Patent Appeal Nos. 813 & 847 of 1999.  It is not in
\ndispute that as such the department accepted the amount and credited
\ninto the NSS Account of the petitioner and nothing is on record that
\nthere was any suppression or concealment on the part of the
\npetitioner in opening the NSS account through his power of attorney.
\nIn paragraph 3, the Division Bench has observed and held as under;\n<\/p>\n
\t 3.\tWe
\nfind that the factum that the accounts were opened through the Power
\nof Attorney holder had not been suppressed or concealed and the
\nDepartment knew it very well at the time when the account was opened
\nthat it was being opened through the Power of Attorney holder.  After
\nthe account has remained operative for number of years and the
\ndeposits have been accepted therein, when it comes to the question of
\nclosure of the account, to deny the payment of the interest on the
\nground that the opening of the account itself was irregular and that
\nit was contrary to the clarifications given by the Finance
\nDepartment, cannot be said to be justified.  The learned Single Judge
\nhas given reasons in detail in paragraph 7, 8 and 9 of the impugned
\norder for allowing the petitions.  The learned Single Judge has also
\nmentioned in the body of the order that the matter was was covered by
\ntwo earlier decisions of this Court, i.e. in Special Civil
\nApplication No. 6794 of  1987 decided on 2nd  March, 1988
\nand in Special Civil Application No.3088 of 1988 decided on 24th
\nDecember, 1993.  Even if it is assumed that opening of the account
\nwas contrary to the clarifications issued by the finance department
\nand that the account could not be opened through the power of
\nattorney holder, it may entail an action against the officials who
\ndid not adhere to the clarifications of the finance department but
\nthe members of the public who come to open the account in a national
\nsavings scheme cannot be told after number of years when they want to
\nclose the account that they will not be entitled to any interest and
\nthe members of the public at large cannot be   made to suffer any
\nprejudice on account of such violations of no significant
\nconsequence.  Even otherwise, if there is any irregularity in the
\nopening of the account, it cannot entail in the forfeiture of the
\ninterest accrued on the deposits made therein for no fault on the
\npart of the person who opened the account or on the part of the
\nperson through whom the account was opened, unless it is made out
\nthat any important or material fact was suppressed or concealed which
\nis not the case against the original petitioners.\n<\/p>\n
7.\tConsidering
\nthe decision of the Division Bench of this Court, the petition
\ndeserves to be allowed.   In view of the above and for the reasons
\nstated hereinabove, the petition succeeds and the concerned
\nrespondents are directed to pay the principal amount deposited by the
\npetitioner lying in NSS Account No. 9141 with interest considering
\nthe rate of interest prevailing and valid from time to time.
\nNecessary calculation with respect to the accrued interest shall be
\nmade by the respondent authorities within a period of six weeks from
\ntoday and actual payment to the petitioner shall be made within a
\nperiod of four weeks thereafter.  It is made clear that the
\npetitioner shall be entitled to the interest on the principal amount
\nonly up to 01\/05\/2007.  Rule is made absolute to the aforesaid
\nextent.  No cost.\n<\/p>\n
In
\n\tview of aforesaid observation made by Division Bench of this Court
\n\tas well as learned Single Judge as referred above, petitioner has
\n\testablished prima facie case and petitioner is entitled interim
\n\trelief as prayed in present petition.\n<\/p>\n
By
\n\tway of interim relief, order passed by respondent dated 12\/7\/2010
\n\tAnnexure B is hereby stayed with further direction to respondent to
\n\tpay entire mature amount as per account no. 1450154 under Senior
\n\tCitizen Savings Scheme, 2004 which become mature w.e.f. 4\/5\/2010
\n\twithin a period of one month from date of receiving copy of present
\n\torder subject to final out come of present proceeding.\n<\/p>\n
Let
\n\tpetitioner may file undertaking before this Court that in case of
\n\tultimate result whatever direction may be issued by this Court same
\n\tremained binding to petitioner. This undertaking is required to be
\n\tfiled by petitioner within a period of fifteen days from date of
\n\treceiving copy of present order and to supply copy of such
\n\tundertaking to learned advocate Mr. Kothari appearing for
\n\trespondent. Direct service is permitted.\n<\/p>\n
\t\t\t\t\t\t\t\t(H.K.RATHOD,
\nJ)<\/p>\n
asma<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Dilipbhai vs Superintendent on 8 October, 2010 Author: H.K.Rathod,&Nbsp; Gujarat High Court Case Information System Print SCA\/9272\/2010 4\/ 9 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9272 of 2010 ========================================================= DILIPBHAI KAMALKANT KARNIK – Petitioner(s) Versus SUPERINTENDENT & 1 – Respondent(s) ========================================================= Appearance : MR SUDHANSHU […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-166166","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nDilipbhai vs Superintendent on 8 October, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/dilipbhai-vs-superintendent-on-8-october-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Dilipbhai vs Superintendent on 8 October, 2010 - 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