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"RSA No. 759 of 2007 1 In the High Court for the States of Punjab and Haryana at Chandigarh RSA No. 759 of 2007 Date of decision: February 24,2009 [ENTITY] son of [ENTITY] Ram Appellant. Versus Smt. [ENTITY] widow of Suraj Bhan Respondent Coram: Hon'ble Mr. Justice [ENTITY] Present: Mr. [ENTITY], Advocate for the appellant [ENTITY],J.",
"This is plaintiff's second appeal challenging the judgment and decrees of the courts below whereby his suit for declaration and permanent injunction to the effect that judgment and decree dated 11.4.1997 passed in Civil Suit No. 91/97 titled as Smt. [ENTITY] Versus [ENTITY] regarding the suit land as null and void and restraining the defendant from ousting the plaintiff from the joint possession has been dismissed.",
"As per the averments made in the Civil Suit, one [ENTITY] son of [ENTITY], i.e., the brother of the plaintiff was owner in possession of the suit land. The said [ENTITY] died in May 1999 and consequent thereupon, the plaintiff being the sole heir of the deceased, inherited the suit land and became owner in possession of the same. It was further alleged that the defendant filed a false and collusive suit bearing [CASE NUMBER] against [ENTITY] regarding the suit land titled as Smt. [ENTITY] Versus [ENTITY] and obtained a judgment and decree dated 11.4.1997 from the court of Civil Judge (Junior Division), Bahadurgarh, which was illegal, null and void and not binding upon the rights of the plaintiff. The defendant also got sanctioned mutation consequent thereupon and wanted to oust plaintiff from the possession of the suit land and also wanted to alienate the same. The plaintiff requested the defendant several times to recognize his title and treat the impugned decree dated 11.4.1997 and [CASE NUMBER] dated 14.6.1997 as null and void but to no avail. Hence this suit.",
"Upon notice, the defendant appeared in the court and filed written statement taking various legal objections.",
"On merits, while admitting that the said [ENTITY] was the brother of plaintiff, the defendant denied that [ENTITY] was the owner in possession of the suit land on the date of his death and that the plaintiff succeeded to his estate. It was further asserted that decree dated 11.4.1997 was passed in her favour validly as the defendant in that Civil Suit (i.e., [ENTITY]) himself engaged a counsel, filed written statement, thumb marked the same and arrived at a compromise with the plaintiff in that civil suit which had become final as the impugned decree was never challenged by the said [ENTITY] in his life time. The other assertions made by the plaintiff were denied. It was specifically stated by the defendant that she being the widow of the real brother of deceased [ENTITY] was having a pre-existing right in the suit land as the heirs of her father-in-law were under obligation to provide maintenance to her in view of the provisions of [ACT] and thus [ENTITY] rightly admitted her claim by way of suffering the impugned decree, which did not require registration and in the end prayed for dismissal of the suit of the plaintiff with costs.",
"After appreciating the evidence on record and hearing the counsel for the parties, the courts below held that [ENTITY] had rightly suffered impugned judgment and decree in favour of the defendant and dismissed the suit of the plaintiff-appellant.",
"Feeling aggrieved, the plaintiff has filed this appeal in this court challenging the judgment and decrees of the courts below.",
"Learned counsel for the appellant has vehemently argued that vide impugned judgment and decree dated 11.4.1997 passed in [CASE NUMBER], an immovable property of more than Rs. 100/- was transferred in the name of respondent who had no pre-existing right in the property in dispute and therefore, the decree required registration. Thus the courts below have erred at law while dismissing the suit of the appellant and holding that the impugned decree does not require registration.",
"On the basis of above arguments, learned counsel stated that the following substantial questions of law arises in this appeal:-",
"\"Whether a decree is compulsory registrable which transfers the property to a person who has no pre-existing right ? I have heard learned counsel for the appellant.",
"The Hon'ble Supreme Court of India in the case of [ENTITY] v. Mukand Ram AIR 1955 SC 481 observed as follows:-",
"\"Reliance is placed on the following in support of the contention that the brothers, having no right in the property purchased by the other's money, could not have legally entered into a family arrangement. The observations are:-",
"It is well settled that a compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is, each party relinquishing all claims to property other than that falling to his share and recognizing the right of the others, as they had previously asserted it to the portions allotted to them respectively.",
"xxxxxxxxxxxxxxxx These observations do not mean that some title must exist as a fact in the persons entering into a family arrangement. They simply mean that it is to be assumed that the parties to the arrangement had an antecedent title of some sort and that the agreement clinches and defines what that title is.\"",
"In the case of [ENTITY] Dass v. Giri Nandini Devi, AIR 1966 Supreme Court 323, the Hon'ble Supreme Court held as follows:",
"\"Courts give effect to a family settlement upon the broad and general ground that its object is to settle existing or future disputes regarding property amongst members of a family. In this context the word 'family' is not to be understood in a narrow sense of being a group of persons whom the law recognizes as having right of succession or having a claim to a share in the disputed property. The consideration for a family settlement is the expectation that such a settlement will result in establishing or ensuring amity and goodwill amongst the relations. The consideration having passed by each of the disputants the settlement consisting of recognition of the right asserted by each other cannot be impeached thereafter.\"",
"In the aforesaid [ENTITY]'s case (supra), the Hon'ble Apex Court further observed as follows:-",
"\"The transaction of a family settlement entered into by the parties who are members of a family bona fide to put an end to the dispute among themselves, is not a transfer. It is not also the creation of an interest. For, in a family settlement each party takes a share in the property by virtue of the independent title which is admitted to that extent by the other parties. Every party who take benefit under it need not necessarily be shown to have, under the law, a claim to a share in the property. All that is necessary to show is that the parties are related to each other in some way and have a possible claim to the property or a claim or even a semblance of a claim on some other ground as, say, affection.\"",
"Again in the case of [ENTITY] v. Deputy Director of Consolidation, AIR 1976 Supreme Court 807, the Hon'ble Apex Court observed as follows:",
"\"The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishers all its claims or titles in favour of such a person acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same.\"",
"It was further observed in the aforesaid [ENTITY]'s case (supra) as follows:-",
"\"Even if bona fide disputes, present or possible which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.\"",
"In the case of [ENTITY] and others v. Ram Karan and others, 2003(1) RCR(Civil) 657 (P&H): 2003 (1) PLR 182 this Court had the occasion to deal with the similar controversy and had held, as per the law laid down in the cases of [ENTITY] Dass (supra), [ENTITY] (supra) and [PRECEDENT] (supra), that the decree in question passed on a family settlement was not required to be compulsorily registered. Even in the case of [ENTITY] and others v. Kartar Singh and others, 2003(2) RCR (Civil) 655 (P&H) :2003 (1) PLR 173 this Court had held that the pre-existing right could also cover a claim of a member of larger family under an oral arrangement which is subsequently confirmed in the court proceedings.",
"In [ENTITY]'s case (supra) the Hon'ble Apex Court was dealing with the decree vide which the title in the suit property was sought to be conveyed and transferred to a person without any pre-existing title through the decree itself. In fact the decree under challenge in [ENTITY]'s case (supra) may be noticed as follows:",
"\"It is ordered that a declaratory decree in respect of the property in suit fully detailed in the heading of the plaint to the effect that the plaintiff will be the owners in possession from today in lieu of the defendant after his death and the plaintiff deserves his name to be incorporated as such in the revenue papers, is granted in favour of the plaintiff against the defendant, in view of the written statement filed by the defendant admitting the claim of the plaintiff to be correct. Pleader's fee fixed Rs.16/-. It is further ordered that there is no order as to costs.",
"It is thus apparent that in [ENTITY]'s case (supra) the Hon'ble Supreme Court of India had held that when the conveyance or transfer was effected through a consent decree, then the same was not permissible and in such a situation such consent decree was compulsorily registerable. However, if a plaint in the suit was filed on the basis of a past transaction or past family settlement for the recognition thereof through a declaration, then the declaration sought was merely with regard to the existing facts on the date of the filing of the suit.",
"In [ENTITY]'s case, the Hon'ble Apex Court had observed as under:",
"\"In [PRECEDENT], the Constitution bench of this Court considered the validity of the family arrangement and the question was whether it requires to be compulsorily registered under [SECTION]. This Court, while up- holding oral family arrangement, held that registration would be necessary only if the terms of the family arrangements are reduced into writing. A distinction should be made between the documents containing the terms and recital of family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of record or for information of the Court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of [SECTION] of the [ACT]. It was held that a memorandum of family arrangement made earlier which was filed in the Court for its information was held not compulsorily registrable and therefore it can be used in evidence for collateral purpose, namely, for the proof of family arrangement which was final and binds the parties. The same view was reiterated in [PRECEDENT], wherein it was held that the family arrangement will need registration only if it creates any interest in immovable property in present time in favour of the parties mentioned therein. In case where no such interest is created the document will be valid, despite it being non-registered and will not be hit by [SECTION] of the Act.\"",
"Thus, it is apparent that in [ENTITY]'s case the Hon'ble Apex Court was only dealing with a situation where the title was being conveyed and transferred for the first time through the consent judgment and decree and not a case where the said decree was based upon the past transaction.",
"There is another aspect of the matter which needs to be noticed at this stage. The Hon'ble Supreme Court of India in [PRECEDENT] held that if the claim of the defendant was admitted by the plaintiff and on the basis of the said admission, a decree was passed and if there was no fraud in passing the decree, then the said decree was good and valid and could not be ignored on the ground that the same was not registered.",
"In the case in hand, the Lower Appellate Court on appreciation of evidence has recorded a finding of fact that the impugned judgment and decree dated 11.4.1997 was not a collusive decree but a compromise decree which was passed on a family settlement which took place between [ENTITY] and the defendant who was widow of his real brother and [ENTITY] did not challenge the decree in question during his life time. Rather he was present at the time when his property was got mutated in favour of the defendant on the basis of the decree suffered by him. There is no denying the fact that such decree could be challenged only on the ground of fraud or collusive which is not the case in hand. Moreover, the courts below also noticed the fact that defendant [ENTITY] being widow of [ENTITY] 's brother had pre-existing right to succeed his property.",
"Thus relying upon the law laid down by the Hon'ble Apex Court in [ENTITY]'s, [ENTITY]'s and [ENTITY]'s cases (supra),judgments of this court in [ENTITY] and others, [ENTITY] and [ENTITY] cases (supra) and keeping in view the findings recorded by the courts below, I find no merit in this appeal.",
"No substantial question of law arises.",
"Dismissed.",
"February 24,2009 ([ENTITY]) nk JUDGE"
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"(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH WRIT PETITION NO. 846 OF 1996 WITH WRIT PETITION NO. 853 OF 1996 AND WRIT PETITION NO. 854 OF 1996 WRIT PETITION NO. 846 OF 1996 1. M/s. Vidarbha Winding Wires Ltd., through its Director Shri Motilal Shivshankar Agrawal, aged about Major, C-40/A, M.I.D.C., Nagpur. 2. Mr. [ENTITY] s/o Motilal Agrawal, resident of 1, Mahima, Pandit Ravi Shankar Shukla Marg, Civil Lines, Nagpur. PETITIONERS Versus 1. [ENTITY], through the Secretary, Finance Department, Mantralaya, Bombay. 2. [ENTITY], through its Secretary, Department of Industries, Energy and Labour, Mantralaya, Bombay 400 032. 3. [ENTITY]. 4. [ENTITY]. Downloaded on - 27/11/2013 20:19:09 (2) 5. [ENTITY], through its Managing Director, Sitabuldi, Nagpur. RESPONDENTS WRIT PETITION NO. 853 OF 1996 1. M/s. [ENTITY], through Hariom Ratanal Chowdhary, aged about Major, D-64, M.I.D.C., Industrial Area, Nagpur. 2. Mr. [ENTITY] s/o Motilal Agrawal, resident of 1, Mahima, Pandit Ravi Shankar Shukla Marg, Civil Lines, Nagpur. ig PETITIONERS Versus 1. [ENTITY], through the Secretary, Finance Department, Mantralaya, Bombay. 2. [ENTITY], through its Secretary, Department of Industries, Energy and Labour, Mantralaya, Bombay 400 032. 3. [ENTITY]. 4. [ENTITY]. 5. [ENTITY], through its Managing Director, Sitabuldi, Nagpur. RESPONDENTS Downloaded on - 27/11/2013 20:19:09 (3) WRIT PETITION NO. 854 OF 1996 1. M/s. [ENTITY] Pvt. Ltd., through its Director Shri [ENTITY], aged about Major, Plot No. 75, Ganesh Road, Paoni, District - Bhandara. 2. Shri [ENTITY] s/o late [ENTITY], Aged 44 years, r/o B-5, Mantri House, Plot No. 34, Cement Road, Shivaji Nagar, Nagpur. PETITIONERS Versus 1. [ENTITY], through the Secretary, Finance Department, Mantralaya, Bombay. 2. [ENTITY], through its Secretary, Department of Industries, Energy and Labour, Mantralaya, Bombay 400 032. 3. [ENTITY]. 4. [ENTITY]. 5. [ENTITY], through its Managing Director, Sitabuldi, Nagpur. RESPONDENTS Shri [ENTITY], Senior Advocate with Shri [ENTITY], Advocate for the petitioners. Mrs. [ENTITY], Additional GP for the respondents. Downloaded on - 27/11/2013 20:19:09 (4) CORAM : [ENTITY] & [ENTITY], JJ. DATE OF RESERVING JUDGMENT : AUGUST 16, 2013. DATE OF PRONOUNCING JUDGMENT : SEPTEMBER 17, 2013 JUDGMENT :",
"(Per [ENTITY], J.) Three different industries i.e. Small Scale Units (SSI) have filed these writ petitions for quashing and setting aside the amendment made to [SECTION] of the [ACT] (hereinafter referred to as the Act), on the ground that it is ultra-vires the [SECTION] and [SECTION] of the [ACT]. There was also a challenge to [SECTION] of the said Act but during the course of hearing, it has been given up.",
"2. To state the challenge very briefly, the petitioners urge that Eligibility Certificates given to them under the [ACT] do not contain any ceiling on the quantum of benefits / incentives envisaged thereunder. By the impugned amendment effected in the year 1995, that ceiling on quantum has been added retrospectively & taxes otherwise exempt with penalty are being claimed.",
"3. We have heard Shri [ENTITY], learned Senior Advocate with Shri [ENTITY], learned counsel for the petitioners and Mrs. [ENTITY], learned Additional Government Pleader for the respondents, on various dates.",
"4. During hearing, on 26.07.2013, affidavit has been filed on record by the petitioners to demonstrate that the Eligibility Certificates issued to them in terms of 1979 Scheme have not been affected, by the alleged modification or amendment made to it vide Government Resolution dated 05.07.1982. The facts stated in this additional affidavit have not been denied by the respondents during later hearings & till date",
"5. The provisions of [SECTION] of the Act stipulate that Eligibility Certificates issued to units like the petitioners shall be deemed to be automatically cancelled on the date on which the cumulative quantum of benefits received by such unit, whether before or after the amendment, exceeds the monetary ceiling provided in the relevant package scheme of incentives. This provision has been further amended with effect from 01.10.1995. As per this subsequent amendment, sub-clause (I) in clause",
"(a) in [SECTION] of the Act is substituted and a concept of Approved Gross Fixed Capital Investment at the time of grant of Eligibility Certificates has been added. Thus, by virtue of this amendment, if the cumulative quantum of benefits received by the petitioners exceeds this \"approved gross fixed capital investment\", their Eligibility Certificates automatically gets cancelled from the date on which it so exceeds.",
"6. Shri [ENTITY], learned Senior Advocate, submits that in Eligibility Certificates issued to the petitioners or then, in their Entitlement Certificates, there is no such condition or rider. He invites attention to 1979 Scheme as formed on 05.01.1980 to urge that the Scheme was made more broad based so as to speed up the industrialization in developing regions of the State. According to him, as per clause 1.2 of this modified Package Scheme of Incentives (hereinafter referred to 1979 Scheme), the Scheme remains unaltered and though Government can make amends to it after giving six months notice, commitments already made cannot be affected by any such amendment. He further points out that as per 1979 Scheme, which was in operation for a period from 01.08.1979 to 31.03.1983, all the petitioners submitted their applications within the stipulated time and their applications were found complete in all respects but have been granted subsequently i.e. much after the grant of certificate of eligibility to other similar small scale industries. With the result, the period of eligibility of seven years or nine years, as stipulated in their certificates, could not expire before 1995. The amendment with effect from 01.10.1995 has thus affected the petitioners only while other units enjoyed all benefits for the during the entire eligibility period without any ceeiling.",
"7. Edible oil companies already functioning in the State complained of hostile treatment to them because of more benefits conferred on new Oil companies under 1979 Scheme. They approached this Court and their grievance was upheld by this Court in the case of Olympic Oil Industries Ltd. vs. [ENTITY], reported at 1987 STC (65) 191. Because of this litigation, the applications of the petitioners remained pending for no fault on their part and have been disposed of belatedly. They also point out that there was heavy rush of applicants in last two days before closing date and [ENTITY], could not process all those applications due to administrative difficulties. Few complaints were made to Anti Corruption Bureau and officers of that Bureau seized some records for investigation.",
"Ultimately, the records were returned and applications submitted by the petitioners and other units were then looked into by Respondent No. 5. Same were then forwarded by Respondent No. 5 to Respondent No. 4 in 1990 for issuance of entitlement certificate.",
"Respondent No. 4 then referred matters to Respondent No. 3 - Commissioner and as the office of the Commissioner did not take any steps, the petitioners approached their association. The said association by name \"[ENTITY]\" then submitted representations to various authorities including the Hon'ble Chief Minister. The entitlement certificates were then issued sometimes in 1991. The Industries Commissioner was directed to investigate into the cause of delay, who in turn asked the Joint Director to investigate. At that juncture, total 19 applications were pending. 14 were approved and five applications were rejected. Thus, this approval was eight years after closure of the Scheme in 1983. The matter was then placed before the High Level Committee to decide whether benefit of 1979 Scheme should be extended and High Level Committee answered in affirmative. Accordingly, Eligibility Certificates have been issued to respective petitioners in which capital cost of their unit is also mentioned.",
"8. Shri [ENTITY], learned Senior Advocate, submits that all other units which had applied along with the petitioners could enjoy benefit of full exemption as their period of eligibility expired before 1995. The petitioners, therefore, cannot be made to suffer for belated release of Eligibility Certificate to them. The petitioners are entitled to equal treatment and hence amended provision which denies it to them, is arbitrary and violative of [SECTION]. He points out this this amendment affects only 14 industries.",
"Grounds (xvii) and (xxvii) as raised in the petition are pressed into service for said purpose.",
"9. The judgment of the Hon'ble Apex Court in the case of Tata Motors Ltd. vs. [ENTITY], reported at (2004) 5 SCC 783 and unreported judgment of Division Bench of this Court dated 08.06.2011 in [CASE NUMBER], are relied upon to show how principles of estoppel are attracted in such situation.",
"10. Mrs. [ENTITY], learned Additional Government Pleader, invites attention to various clauses of 1979 Scheme to show that it restricted quantum of benefit to either 90% or 80% as the case may be and contained a provision for review of fixed capital investment. She submits that the amendments made to [SECTION] are in this background. She points out that the petitioners are covered under [SECTION] as per clause 4.3 of 1979 Scheme. The said Scheme underwent significant changes on 05.07.1982 and as per those changes, the ceiling has also been imposed on small scale units under said [SECTION]. A small scale unit cannot, therefore, get total exemption exceeding 100% of fixed capital investment during the period of its eligibility. 1979 Scheme as amended on 05.07.1982 was in force when the petitioners' applications were considered. The provisions of [SECTION] as amended are in consonance with this amendment to scheme and, therefore, the challenge to constitutionality of said section has to fail.",
"11. She has also invited our attention to Eligibility Certificates and Entitlement Certificates as issued to respective petitioners to urge that it contain stipulation about cost of unit and also a provision of review insofar as total period of eligibility is concerned.",
"12. The purpose of amendment to [SECTION] of the Act is sought to be explained and justified by inviting our attention to reply filed in [CASE NUMBER]. She contends that the petitioners were right from day one, subject to this quantum ceiling and hence challenge to validity of [SECTION] of the Act at their instance is unsustainable. She has also attempted to point out that the judgment of this Court dated 25.09.2009 does not consider challenge to amendment. Similarly, judgment in [CASE NUMBER] is also sought to be distinguished. Our attention has also been invited to judgment dated 10 .6.2013 delivered in [CASE NUMBER] at in case of M/s. Jindal Poly Films vs. The [ENTITY] & Others.",
"13. Shri [ENTITY], learned Senior Advocate, in his reply arguments, submitted that the amendment dated 05.07.1982 has come into force with effect from 10.01.1983 and applications submitted by the petitioners are prior to that date. Plea based upon said amendment is not raised in reply but has been urged orally, thereby taking the petitioners by surprise. The reply has not been amended by the State & amendment has been produced before this Court during oral arguments for the first time. By such an amendment, in any case, vested rights cannot be taken away. He also invites attention to clause 4 of the amendment to show that option has been given to certificate holders and without their consent the amended provisions cannot be extended to them. He further attempts to demonstrate that computation of 100% of fixed capital investment as per amendment dated 05.07.1982 is during & for entire period of eligibility while [SECTION] of the Act speaks of Gross Fixed Capital Investment as approved on the date of issuance of Eligibility Certificate. He requested the Court to permit the petitioners to place on record the necessary facts in the light of 5.7.1982 amendment. Accordingly, on 23.07.2013, by a reasoned order, after noticing these developments, we adjourned the matter on 25.07.2013 for further consideration. The said order reads as under :",
"CORAM : [ENTITY] & [ENTITY], JJ DATED : JULY 23, 2013.",
"The matters were heard and after the respondents finished arguments, matters were adjourned to today to hear reply arguments and to find out fate of [CASE NUMBER] then pending at Bombay.",
"Today it is pointed out to us that because of separate judgment delivered in [CASE NUMBER] on 25.09.2009, [CASE NUMBER] was disposed of. A copy of this separate judgment is produced by the State Government on record as part of their reply in [CASE NUMBER].",
"Shri [ENTITY], learned Senior Counsel with Shri [ENTITY], learned Counsel appearing for petitioners in his reply arguments pointed out that the amendment to 1979 Scheme has not been pleaded in defence and was relied upon only during the oral arguments. He asserts that entitlement and eligibility certificates issued to petitioners are under un-amended 1979 Scheme. He further points out that the Scheme as amended in the year 1982 restricts the incentive quantum to 100% of the fixed capital investment during the period of 7 years.",
"According to him in case of petitioners, even this restriction was never implemented.",
"Mrs. [ENTITY], learned Additional Government Pleader at this stage pointed out that the petition does not contain any specific statement in this respect, and has been filed only with apprehension that in future petitioners may exceed the ceiling imposed by [SECTION] of which validity has been assailed. Whether during eligibility period, the ceiling could have or has actually been exceeded, has not been pleaded and is not on record.",
"In view of these arguments, we place the matters for further consideration on 25.07.2013.\"",
"On 26.07.2013, an affidavit came to be filed by the Petitioners and matter was then adjourned to 29.7.2013, 31.7.2013,1.8.2013 & 6.8.2013. It could be heard further on 14.8.2013 & closed for judgment on 16.8.2013.",
"14. Shri [ENTITY], learned Senior Advocate, in his further reply, has submitted that the Eligibility Certificates issued to the petitioners do not speak of any approved gross fixed capital investment and their certificates are under original or 1979 Scheme.",
"It does not corelate the quantum of incentivesto be availed with the capital investment at all. The power to review or power to amend is not sufficient to take away the vested rights or then to defeat the commitments made in basic 1979 Scheme. He further submits that in present facts, amendment to the Scheme as per Resolution dated 05.07.1982 was never acted upon & is, therefore, not attracted. He also invites attention to facts disclosed in affidavit filed on 26.07.2013 to demonstrate how the amended [SECTION] has been actually used against the petitioners. Learned Senior Advocate points out that the Additional Government Pleader did not dispute facts disclosed in said affidavit tendered by him. She also could not point out whether the amendment as per [SECTION] was in fact implemented in case of any other units. He contends that as validity of a legislation has been challenged, it does not depend upon the acquiescence or otherwise of/by the petitioners.",
"15. Mrs. [ENTITY], learned Additional Government Pleader, in reply maintains her earlier arguments. She submits that Eligibility Certificate of the petitioners show that 1979 Scheme as amended in 1982 has been applied to them and, therefore, only a provision for review appears in their Eligibility Certificates. She further points out that amended [SECTION] applies to the petitioners' units after 01.10.1995. Our attention has also been invited to [CASE NUMBER], particularly para 4 to show that the petitioner therein had exceeded the permissible quantum of benefits. She, therefore, prays for dismissal of writ petition.",
"16. At threshold, it is necessary to note that challenge to [SECTION] only needs scrutiny in as much as challenge to [SECTION] has not been pressed & is given up by the Petitioners. [SECTION] of the [ACT] been added to the statute book vide [ACT] & come into force on 8.6.1995. Its impact on 1979 sales tax incentive scheme as notified on 5.1.1980 & in vogue from 1.8.1979 till 31.3.1983 needs evaluation. Earlier scheme ie 1976 scheme had expired on 31.7.1979. Before proceeding further, it will be appropriate to mention events material for deciding the controversy involved in present petitions.",
"A Petitioner M/s Vidarbha Winding Works in [CASE NUMBER] applied for eligibility certificate on 7.1.1983. Petitioner M/s [ENTITY] in [CASE NUMBER] has also given the same date as date of its application. Petitioner M/s [ENTITY] in [CASE NUMBER] has applied for eligibility certificate on 30.12.1982.",
"B The eligibility certificate of M/s Vidarbha Winding Works is dated 27.9.89 & period of 7 years during which benefits of incentive scheme were available to it is from 16.11.1991 to 15.11.1998. Its capital cost noted therein is Rs. 3,40,000/ only. The eligibility certificates of M/s [ENTITY] are dated 27.2.91 & 16.11.1992 for period of 9 years during which benefits of incentive scheme were available to it. The said period is from 25.7.1992 to 15.9.2000 & capital cost of Unit according to it is Rs. 44,828/only. The eligibility certificates of M/s [ENTITY]",
"in [CASE NUMBER] is dated 9.10.1989 & for period of 7 years from 1.2.1990 to 31.1.1997 while capital cost of said Unit noted in it is Rs. 92,813/only.",
"C Petitioner M/s Vidarbha Winding Works in [CASE NUMBER] started production in March,1989. It is registered under [ACT] wef 14.3.1989 & central sales tax wef 17.3.1989. Petitioner M/s [ENTITY] in [CASE NUMBER] started production on 20.1.1985. It is registered under [ACT] wef 19.9.1990. Petitioner M/s [ENTITY] in [CASE NUMBER] started production on 10.1.1983. It is registered under [ACT] wef 22.6.1989 & central sales tax wef 22.6.1989",
"17. Provisions of 1979 Scheme as on 5.1.1980:",
"According to Petitioner, incentives were applied for under the original scheme as notified on 5.1.1980 & hence, provisions therein as on said date govern its unit. It is not in dispute that sales tax incentive as prescribed in clause 5 ie [SECTION] are relevant in present matter. These benefits are conferred vide Clause 5.1 only upon a new unit like Petitioner & not a near new unit.",
"Clause 5.2 grants exemption from sales tax, general sales tax or purchase tax & central sales tax. Clause 5.5 is the important provision to understand the Scheme & it restricts the entitlement of a \"Pioneer Unit\" qua benefit enjoyable every year & also qua its total quantum which can be availed during the entire period of 7 years. The quantum of benefit enjoyable each year is equal to sales tax liability of the previous year. Important condition in it is: \"The total quantum of sales tax incentive during the period of eligibility will, however, be determined in such manner that at no point of time the cumulative sales tax incentive exceeds 90% of the cumulative Gross Fixed Capital Investment of the Pioneer unit.\" The phrase \"Gross Fixed Capital Investment \" is defined in Clause 2.7. It needs to be noted that in case of Pioneer Unit, if eligibility is spread over to extended period, still it remains subject to this ceiling of 90% as per Clause 5.9. Clause 5.10 of the Scheme contemplates monitoring & review of fixed capital investment of Medium/Large Scale Units with a view to ensure that incentive availed does not mismatch with its permitted quantum. Pioneer Unit is the status conferred upon only one unit in Taluk or Panchayat Samiti, depending upon their location as per Clause 3. Petitioner unit does not fall in that category. Thus unlimited incentives are not envisaged under the original Scheme of 1979 only for Pioneer Units & Medium/Large Scale Units. But then it also envisages \"cumulative\" sales tax incentive & the \"cumulative\" Gross Fixed Capital Investment. It does not restrict the quantum of benefits available only to initial fixed capital investment. Clause 1.2 empowers the State Government to amend the Scheme after giving 6 months notice but then the commitments already made can not be affected by such an amendment.",
"18. Provisions of 1979 Scheme as on 7.1.1983:",
"According to Respondents, Scheme itself comprehends within itself the applicability of amendments made to original scheme from time to time. Thus, date on which incentives were applied for determines the provisions applicable to the Petitioner unit. The scheme seen in Clause 5.10 of original scheme in relation to Medium/Large Scale Units has been extended to the Small Scale Units like Petitioners as per resolution dated 5.7.1982 after expiry of period of 6 months therefrom ie after 6 months notice in terms of Clause 1.2 of the original scheme.",
"Thus the scheme for monitoring of Gross Fixed Capital Investment of the SSI has been in force since 10.1.1983 and scrutiny to curb incentives enjoyed at par with Medium/Large Scale Units is permitted thereafter. This amendment also introduces Sales Tax Deferral Scheme in [SECTION] of the original scheme but the same is not relevant in present matters. This procedure or control is definitely a new measure. The ceiling of 100% of \"Gross Fixed Capital Investment\" never existed for SSI & enjoyment of this basic unlimited entitlement is adversely affected thereby. The amendment adds the ceiling limit of 100% of the Gross Fixed Capital Investment of the Petitioner unit during the period of eligibility on quantum of incentives. A new safeguard has also been added to check breach of this ceiling limit. It provides for cancellation of the eligibility certificate if while monitoring, the fact of utilization of incentives in excess the ceiling imposed, is discovered. Thus a new limitation has been added to the original scheme w.e.f. 10.1.1983. This limitation results in curtailment of incentives already assured under original scheme. Clause 1.2 of the original scheme assumes importance in this backdrop & it stipulates that : \" The modified Package Scheme of Incentives shall remain in operation for the period from August 1,1979 to March 31,1983. Government may at any time after giving six months notice, make any amendments to the Scheme but the commitments already made shall not be effected by any such amendment.\" The use of word \"effected\" appears to be inadvertent & correct word to be employed is \"affected\".",
"19. As already noted above, the Petitioners applied for grant of eligibility certificates under the original Scheme or unamended scheme. The provision for monitoring the gross capital investment came to be added wef 10.1.1983. Eligibility of respective Petitioners has been examined & they are issued eligibility certificates few years after such amendment. Petitioners also started their production either in 1985 or then in 1989, as the case may be. These dates are already noted by us above. Question in this situation is whether by 5.7.1982 amendment to 5.1.1980 GR, any commitment already made to Petitioners can be said to have been violated! Stand of the Petitioners' Counsel that though the eligibility certificates issued to them did contain a provision for review to monitor the proportionate exhaustion of incentives qua the gross capital investment, the said stipulation was never implemented & Petitioners were allowed to avail the incentives without any ceiling limit, has not been disputed by the Respondents.",
"The entitlement of Petitioners to eligibility is not in dispute & the only question is of their right to continue to enjoy the unlimited incentives for full period of 7 years or 9 years, as the case may be. In absence of amendment as done on 5.7.1982 wef 10.1. 1983, also their entailment to continue could not have come into dispute. Thus, this amendment to Scheme & addition of [SECTION] to [ACT] are the grounds to justify denial of the full benefit period to them. Their eligibility has not been cancelled on any other ground & it is not the defence that it ceased to be a SSI unit due to huge or unauthorized expansion of plant/unit. Respondents do not urge that the Units of Petitioners got transformed into either Medium Scale or Large Scale Units during this benefit period because of such investments.",
"20. It is in this background that the word \"commitment\" in last part of Clause 1.2 above ie \"commitments already made shall not be affected by any such amendment \"",
"needs to be construed. This part itself implies that the commitments not made till then can be varied ie the Scheme itself may be changed to alter the arrangement qua any particular matter prospectively. The Respondents have urged that the Scheme itself was changed on 5.7.1982 wef 10.1.1983. But then there is no argument that commitment made to Petitioner was not as per original scheme. It is not the contention that Scheme prevailing on the date of eligibility certificate is relevant & decisive. On the contrary, the facts reveal that arrangement as amended on 10.1.1983 was never implemented in case of Petitioners. The Petitioners admittedly have applied prior to 10.1.1983 & most probably with knowledge of proposed change in the original scheme. But then, their applications were in terms of original ie unamended scheme & with a view to secure that benefit. As per Clause 1.2 of the 1979 Scheme, it was to remain in force from 1.8.1979 till 31.3.1983. Clause 2.10 treats a unit for setting up of which at-least one of the final effective steps has been completed after 1.8.1979 as a new unit. Sub-para of paragraph 4 of this 1982 modification envisages SSI units governed by original Scheme of 1979 & gives them option to choose to come under Scheme as modified after expiry of 6 months from 5.7.1982. It is not in dispute before us that the Petitioners had applied prior to said expiry. Hence, their eligibility and entailment as on said date has been appreciated & they are found entitled to the benefit of the Scheme. Form of eligibility certificates issued to different types of Units appear to be one & same. Clause in eligibility certificate issued to Petitioners showing the permissibility of review or scrutiny at the end of 2/3/5 years expressly restricts itself to medium or large scale units with a view to determine & check the excessive availing of the incentives by them. There is no such stipulation qua the Small Scale Industries. The entailment certificate contains a clause which allows Petitioners to enjoy the benefits during the period of validity of certificate. In case of Petitioners, none of these certificates prescribe a ceiling or show a provision for its premature determination on the ground of alleged overdrawal. It will be fruitful to first determine the perspective to be adapted while appreciating such Schemes.",
"21. In [PRECEDENT], at page 77 , Hon. Apex Court has observed :",
"\"53. An exemption notification and a notification withdrawing the benefit granted would, however, stand on different footings. For the said purpose, the industrial policy is required to be kept in mind. It must also be taken into consideration for the purpose of construing the exemption notification. In A.P. Steel Re-",
"Rolling Mill Ltd. v. State of Kerala9 this Court held: (SCC pp. 741-42, paras 32 & 34-",
"35) \"32. The general principles with regard to construction of exemption notification are not of much dispute. Generally, an exemption notification is to be construed strictly, but once it is found that the entrepreneur fulfils the conditions laid down therein, liberal construction would be made.* * *",
"34. A question as to whether, in a given situation, an entrepreneur was entitled to the benefit under an exemption notification or not, thus, would depend upon the facts of each case. A bare perusal of the Notification dated 6-2-1992 issued by the first respondent would show that the purport and object thereof was to grant benefit of a concessional power tariff which came into force on and from 1-1-1992. The phraseology used in the said notification postulates that the benefit was to be granted in regard to the 'enhanced power tariff'. Thus, where the new units had started production between 1-1-1992 and 31-12-1996, such exemption was available to the entrepreneurs.",
"35. Evidently, except in a situation as might have been existing in Hitech Electrothermics10 that any application filed by the entrepreneur had not been processed within a reasonable time, in which case benefit might not be denied on equitable ground; in cases where there has been a substantial failure on the part of the industrial unit to obtain such benefit owing to acts of omission and commission on its part, in our opinion, no such benefit can be given.\"",
"Law laid in [PRECEDENT], at page 719 is as under :",
"\"5. On a perusal of the industrial policy of the Government, unequivocally indicating that concessional tariff rate would be given as well as the order of the Electricity Board adopting the same, it can be safely held that such concession could be availed of by the industrial units for a period of five years from the date, they start such production between 1-1-1992 and 31-12-1996. In this context the stand of the Board as well as the State Government cannot be held to be devoid of any substance when admittedly the commercial production of the appellant's unit did not start till 31-12-1996. But the question for consideration is when the Government has itself come forward alluring industrial units to set up their industries and when under the provisions of the [ACT], every consumer has the right to get the supply of power and in the case in hand, when power allocation has been made in favour of the appellant as early as in 1995, and yet the same power could not be supplied for such non-supply of power, the commercial production could not start by 31-12-1996, would it at all be equitable to deny the relief to the appellant by giving a literal interpretation to the incentive scheme of the Government as adopted by the Board? Our answer to this question must be in the negative. There are several documents Suffice it to say that the appellant has been denied power supply by the Board in appropriate time, which has prevented the appellant from starting the commercial production by 31-12-1996. This being the position, and having regard to the gamut of the circumstances, starting from the government policy resolution and culminating in setting up of the factory by the appellant in Kerala and commencing the production of ferro alloys, though not by 31-12-1996, we are of the considered opinion that granting the concessional tariff for a period of three years instead of five years, as indicated in the policy resolution would meet the ends of justice and we, accordingly, so direct. Be it stated that the appellant has been enjoying the concessional tariff on the basis of interim orders of the court and, therefore, that should be taken into account and due adjustment would be made in computing the period of three years, for which we are directing for grant of concessional tariff. The impugned judgment of the Kerala High Court is set aside and these appeals are allowed to the extent indicated above.\"",
"Following judgment of Hon. Apex Court may be relied upon to gather how such provisions in the Scheme need to be considered. In [PRECEDENT], at page 616 , Hon. Apex Court observes :",
"\"11. In [PRECEDENT] this Court held that in taxing statutes, provision for concessional rate of tax should be liberally construed. So also in [PRECEDENT] it was held that provision granting incentive for promoting economic growth and development in taxing statutes should be liberally construed and restriction placed on it by way of exception should be construed in a reasonable and purposive manner so as to advance the objective of the provision.\"",
"22. We find that the Division Bench of this Court considers the original 1979 Scheme as also amendment made to it vide GR dated 5.7.1982 in judgment reported at [PRECEDENT] [ENTITY] s/o [PRECEDENT]. However this judgment considers the position of law prevailing prior to addition of [SECTION] to the [ACT]. Petitioners in this reported judgment had set up their industries in backward areas of State in order to take advantage of a Package Scheme of incentives. The Division Bench did not allow Government to go back on a representation made by it in the matter of concessions in taxation holding that conditions prescribed for eligibility for exemption can not be altered by subsequent notification, since eligibility once earned is not lost. Division Bench, in para 11 observes that exemption was to be availed up to a fixed percentage of capital investment \"during the above period\", i.e. during the period for which sales tax incentive was admissible. This ruled out the interpretation that the sales tax exemption was to be restricted to the gross fixed capital investment referred to in the eligibility or entitlement certificate. In view of this, both the communications impugned in two writ petitions before said Division Bench were held unsustainable. With reference to the cost value mentioned in the eligibility certificate, the Division Bench noted that the reference in both these clauses is to 'cumulative gross fixed capital investment with reduction of written off, etc.'. It held that the concept of cumulative gross fixed capital investment obviously ruled out the possibility of the gross fixed capital investment being restricted to amount mentioned in the eligibility certificate at the time of commencement of the activity, or availing the Scheme & all ongoing additions within the prescribed time-limit of period of exemption were permitted. We find this logic & exposition good even in present writ petitions.",
"23. Another Bench has taken similar view in 1997(I)Mah.L.J 395 -Perfect Foundries Pvt. Ltd. & Ors. Vs. [ENTITY] & Ors. Package Scheme of Incentives came in force retrospectively from 1.8.1979 & it comprised mainly of incentive qua Sales Tax, reliefs in electricity tariff, Octroi etc. By resolution dated 5.7.1986 scheme was modified and provided further reliefs in sales tax. Petitioner there was granted eligibility certificate on 19.9.82 for 7 years from 1.10.1982 to 30.9.1989 to avail the facility of deferral scheme of sales tax. [SECTION] of [ACT] on 1.4.59 was amended by [ENTITY] providing for levy of Additional Tax in the case of dealers whose turnover exceeds Rs.10,00,000/- per year. [SECTION] introduced from 13.7.1986 whereby turnover @ 1.25% in goods specified in schedule `C' thereof was payable by the dealer whose turnover on all sales exceeded Rs.12,00,000/- per year. Notice dated 8.3.88 was issued to petitioner by Sales Tax Officer for non payment of additional tax from 1.7.84 and turnover tax from 30.7.86 & a demand notice for additional tax for period from 1.7.86 to 31.7.86 and 1.12.86 to 30.7.87 and demand notice dated 21.4.88 for additional tax and turnover tax for period from 1.7.87 to 31.12.87. While quashing these notices & demands, the Division Bench observes that although the Scheme as modified by [ACT] speaks of sales tax, general sales tax and purchase tax, the same is deemed to be extended also to the additional tax and turnover tax as they are based on sales.",
"24. [SECTION] has been added by [ACT] wef from 8.6.1995 & it reads :",
"\"-[SECTION]- Cancellation Of Certificate Of Entitlement (1) Notwithstanding anything contained in this Act, or in any judgment, decree or order of any Court or Tribunal to the contrary, the Certificate of Entitlement issued in favour of an Eligible Unit by the Commissioner in respect of any Package Scheme of Incentives",
"(a) shall be deemed to have been automatically cancelled on the date on which -",
"(i) the cumulative quantum of benefits received by such unit, - (A) being a Small Scale industrial unit governed by the 1979 Package Scheme of Incentives as calculated from the 1st of October, 1995 exceeds\" the approved gross fixed capital investment of such unit at the time of grant of the Eligibility Certificate\", or (B) not being an unit referred to in entry (A) above, exceeds at any time, whether before or after, the date of commencement of [ACT], the monetary ceiling as provided in the relevant Package Scheme of Incentives.",
"(ii) the period for which a Certificate of Entitlement was granted to an Eligible Unit, expires; or",
"(iii) the Certificate of Registration granted to an Eligible Unit has been cancelled;",
"(b) shall be cancelled by the Commissioner, after giving the Eligible unit an opportunity of being heard, if it is noticed that the grant of Certificate of Entitlement is inconsistent with any of the provisions of this Act, rules or notifications framed or issued under the Act or any of the relevant Package Schemes of Incentives.",
"(2) On and from the date of such cancellation, such unit shall cease to be eligible to claim any exemption from payment of tax under [SECTION] or, as the case may be, under [SECTION] of the Schedule to the notification issued under [SECTION] and such unit shall surrender to the Commissioner, the Certificate of Entitlement, together with all declarations in Form 'BC', within fifteen days from the date of such cancellation. -\"",
"[SECTION] above is the relevant part with which we are concerned here.",
"It introduces a new concept viz.\"the approved gross fixed capital investment of such unit at the time of grant of the Eligibility Certificate\". The eligibility certificates of Petitioners nowhere show \"the approved gross fixed capital investment of such unit at the time of grant of the Eligibility Certificate\". It only mentions capital cost of project.",
"Respondents have also not pointed out what this phraseology exactly implies. Perusal of original Scheme dated 5.1.1980, particularly its Clause 2.7 dealing with Gross Fixed Capital Investment shows how Gross Fixed Capital Investment is to be computed. It is Gross Fixed Capital Investment at the beginning of the year plus additions,if any, made to Gross Fixed Capital Investment during the year, less the original value to the unit of any Fixed Assets written off/disposed of/sold during the year. This Clause shows that in basic scheme of 1979, there is no provision for determining Gross Fixed Capital Investment at the commencement or on date of grant of Eligibility Certificate. It proves that it is an annually fluctuating norm with relation to which the entailment of Medium Scale or Large Scale Units may require computation qua that year & every year keeping in mind the ceiling imposed by the Scheme, where-ever same applies. Findings of this Court in [ENTITY] s/o [PRECEDENT]. (supra) clinch this aspect. This also reveals that in case of SSI Units like Petitioners, as there is no such ceiling in the original 1979 Scheme, this exercise or annual workout is not called for. The Petitioners get full incentive & exemption for additions which qualify as Gross Fixed Capital Investment every year for the entire period & duration of their eligibility certificates. Even if amendments as effected on 5.7.1982 are held relevant, that amendment also limits entailment to \" 100% of the Fixed Capital Investment\" during the entire period of eligibility. Therefore, even 5.7.1982 modification does not restrict Petitioners' entailment to the capital investments at the start or establishment of the SSI unit. [SECTION] of this 1982 modification while bringing it in force from 10.1.1983 also expressly permit units governed by 1979 Scheme to continue under original scheme unless they opt for modified scheme. The Petitioners never opted for 5.7.1982 modification & all through continued under 1979 Scheme. Petitioners also submit that their Gross Fixed Capital Investment at the start of the production is being treated as approved Gross Fixed Capital Investment to compute their entailment. Effort is to show that thus subsequent additional investments are being ignored. Respondents do not dispute this. We find that in case of MSU/LSU, their entailment would be determined every year afresh even after amended [SECTION] & they get increased exemption for additions made during that year. In a hypothetical matter, their entailment at 80% or 90% of the Gross Fixed Capital Investment, may, during the length of entire eligibility period, exceed the first or initial figure thereof at the start of production. The intention of the framers of 1979 Scheme or 1982 modification was never to deny this benefit of additional investment to SSI units like the Petitioners. Affidavit filed vide stamp no. 7234/13 in [CASE NUMBER] shows Sales Tax Department has found that said Petitioner has exhausted the ceiling available to it & hence determined the tax liability of Petitioner at Rs. 16,77,547/- in 1995-96. In year 1996-97, Rs. 36 Lac approximately is assessed as tax & with penalty, total demand is of Rs. 62,27,104/-. Petitioner is assessed in same manner for later years also. Respondents have not denied any of this. Thus, except for 14 units who got entailment & eligibility certificates belatedly for no fault on their part, all other SSI Units completed their benefit period without any ceiling & got exemptions for full eligibility period by computing the Gross Fixed Capital Investment as per sub-clause III of Clause 2.7 of 1979 Scheme. If the incentives of Petitioners alone are now confined initial year, it would be unjust & treating them unequally. Most of the Units in all these three categories have already exhausted the full benefits for entire term as per original Scheme. SSI units like Petitioners enjoyed that benefit without any ceiling for whole period assured by the eligibility certificates. Petitioners are being subjected to ceiling only because of late processing of their applications by the Respondents though the same were moved well within time-limit . Their incentive period could not expire before the 1995 amendment for no fault on their part. [SECTION] therefore becomes a special legislation only for them.",
"25. Findings of this Court in [ENTITY] s/o [PRECEDENT]. (supra) also show that for medium or large scale units, the incentive scheme does not provide for pegging down their entitlement to the initial year of grant of eligibility certificate. [SECTION] of the Act also does not use words to limit it or relate it to time of grant of eligibility certificate to them. Said provision also does not have the effect of denying the \"cumulative\" benefit to these MSU/LSU as it employs the words \" as provided in the relevant package scheme of incentives\". Thus, prima-facie, only SSI units are subjected statutorily to such pegging down to the initial year & this may also amount to hostile discrimination as such an attempt is already found contrary to the 1979 Scheme in [ENTITY] s/o [PRECEDENT]. (supra) in respect of MSU/LSU. However, no such arguments are advanced before us & hence, we do not find it necessary to dwell more on this aspect.",
"26. Perusal of paragraph 29 of the recent Division Bench judgment of this Court in case of M/s. Jindal Poly Films vs. The [ENTITY] & Others (supra) relied upon by learned Addl.G.P. shows that there a validating amendment vide [SECTION] of the Act has been upheld observing that it can have retrospective effect. The impugned provision was already added in 2001 & it was not an enabling provision but laid down ceiling on the entitlement of an eligible unit by limiting the quantum of benefits only to part of its turn-over of sales & purchases to be worked out by applying a ratio to be prescribed by the State Government. On same lines, a provision came to be added to [SECTION] in 2002 . The Division Bench found that legislation allowed benefit only on proportionate part of turn over. In earlier challenge, vide the judgment dated 13.10.2008 in case of Pee Vee Textiles, the earlier Division Bench had found that in absence of Rules prescribing the ratio, the Deputy Commissioner was not justified in issuing an administrative order imposing the ceiling. It therefore quashed the administrative circular & consequential recoveries. This lead to revenue implication of Rs.500 Crores & hence State came out with an over-riding legislation. & substituted S/s. (1),(1A) & (1B) of S. 93 retrospectively which fell for consideration in M/s. Jindal Poly Films. Thus the law envisaged, a Rule framed by the State Government for its implementation & the authorities had acted in absence of such Rule but on the basis of the executive instructions and had denied the benefits. This implementation & denial was found bad by the High Court & that necessitated huge refunds to the units. State Government cured that lacuna of the absence of Rules prescribing the Ratio by the subsequent validating amendment. This has been upheld but then retrospective levy of penalty is found bad in M/s. Jindal Poly Films. Thus controversy addressed to was in relation to a remedial measure permitted by the legislature & its faulty execution. The fault was removed by the validating legislation. Facts at hand are entirely different & a liability not foreseen by the SSI units like Petitioners is being imposed retrospectively which upsets their calculations, proliferation, financial structuring & prospects etc. looked into by such units at thresh-hold while evaluating feasibility of putting their project in comparatively undeveloped or underdeveloped area as also impact of incentives under 1979 Scheme. In the light of law discussed above, it is apparent that an unequivocal offer contained in 1979 Scheme accepted by the Petitioners by seeking its benefit while moving applications after necessary steps prior to 10.1.1983 can not be allowed to be withdrawn. Non-imposition of any ceiling in 1979 Scheme for SSI units is not an inadvertent omission & its introduction long after the Units have taken irreversible steps is not only arbitrary but also high-handed. [SECTION] therefore can not be used to the prejudice of the present Petitioners.",
"27. Tata Motors Ltd. vs. [ENTITY], (supra) shows that the Hon. Apex Court has, in paragraph 15 found that reason for withdrawing the benefit retrospectively for a limited period was not forthcoming. It observes :",
"\"Assuming that it was the legislative policy not to grant set-off in respect of waste or scrap material generated, it becomes difficult to appreciate the stand of the State in the light of the fact that the original rule continued to be in operation (with certain modifications) subsequent to 1-4-1988. The reason for withdrawal of the benefit retrospectively for a limited period is not forthcoming. It is no doubt true that the State has enormous powers in the matter of legislation and in enacting fiscal laws. Great leverage is allowed in the matter of taxation laws because several fiscal adjustments have to be made by the Government depending upon the needs of the Revenue and the economic circumstances prevailing in the State. Even so an action taken by the State cannot be so irrational and so arbitrary so as to introduce one set of rules for one period and another set of rules for another period by amending the laws in such a manner as to withdraw the benefit that had been given earlier resulting in higher burdens so far as the assessee is concerned, without any reason. Retrospective withdrawal of the benefit of set-off only for a particular period should be justified on some tangible and rational ground, when challenged on the ground of unconstitutionality. Unfortunately, the State could not succeed in doing so. The view of the High Court that the impugned amendment of [SECTION] was of clarificatory nature to remove the doubts in interpretation cannot be upheld. In fact, the High Court did not elaborate as to how the impugned legislation is merely clarificatory. In that view of the matter, although we recognise the fact that the State has enormous powers in the matter of legislation, both prospectively and retrospectively, and can evolve its own policy, we do not think that in the present cases any material has been placed before the Court as to why the amendments were confined only to a period of eight years and not either before or subsequently and, therefore, we are of the view that the impugned provision, namely, [SECTION] deserves to be quashed by striking down the words \"not being waste goods or scrap goods or by-products\" occurring in the said [SECTION] of [ACT] and the authorities concerned shall rework assessments as if that law had not been passed and give appropriate benefits according to law to the parties concerned.\"",
"In unreported judgment of Division Bench of this Court dated 08.06.2011 in [CASE NUMBER], retrospecyve operation of [SECTION] of [ACT] divesting the units established under 1988 Scheme of vested rights was held bad. But the Division Bench noted that [SECTION] added in [ACT] with effect from 1.5.1994 merely authorized the Commissioner to calculate CQB ( cumulative quantum benefit) from 1.1.1980 in manner prescribed for said period & [SECTION] was repugnat to the industrial policy & not [SECTION] Hence, we do not find it necessary to refer to this judgment in more details.",
"28. In present matters, the Government was aware of the alleged error in the 1979 Scheme since 1982 & took some steps to provide cure through 5.7.1982 modification. But then consistent with the commitments contained in 1979 policy, it gave option to SSI units & allowed them to continue under 1979 unmodified Scheme. The amendment in the shape of [SECTION] has come in 1995 and it results in curtailment of the benefit period & also imposes an unforeseen tax liability. Till then all benefits without any ceiling or then, after 10.1.1983, incentives equal to 100% of the fixed capital investments made during entire period of eligibility qualified for claiming the exemptions. That has been suddenly changed & eligibility is pegged down to initial year in which the eligibility certificate was issued. This drastic change results in retrospective cancellation of the eligibility certificate. Need for such a measure was felt in 1982 itself & it lead to issuance of 5.7.1982 modification. Why State Government could not bring in such an amendment immediately after 1982 is not clear. If the measure of imposing ceiling on quantum of incentives was evolved in public interest, its advance notice to aspiring investors was possible & also must. But, even in 1982 modification, the Petitioner Units are given exemption equal to cent-percent capital investments made during the period of eligibility. The mode & manner of calculating quantum continued without any ceiling for all these Petitioners & they may have also expanded their projects by investing back the exemptions granted. Even otherwise, it is obvious that no SSI unit under 1979 Scheme would have surrendered & voluntarily subjected themselves to any ceiling and hence, if Government wanted really to remedy the mischief, bringing proper legislation at the earliest was the only solution. The legislation has been brought after majority of the units completed their eligibility period. A liability not in contemplation, has been fastened for past investments which were then eligible for exemption. Past investments may be expansions which catered to the development of underdeveloped area & therefore, advanced the objective of State Government. Thus, such investments & appropriation of incentives are now irreversible & it is irrational to disallow the same & demand taxes. It is strange to levy penalty for the same. We, therefore, see no justification in subjecting very few units to such legislation ie to [SECTION]. Had the legislation been enacted immediately after 1982 & all SSI units were subjected to it, a different perspective may have been required to be adopted. The present situation demands a liberal approach & as observed by Hon. Apex Court (supra) \"the Government has itself come forward alluring industrial units to set up their industries\". Since we do not see absence of power in State Legislature, it is not necessary to quash & set aside said provision which may have outlived itself considering the fact that out of total possible 14, only three matters are before us. But then exposing Petitioners to such unforeseen liability prejudices their entire planning, projections & future. We reiterate that it is not the case of the Respondents that expansion of project or then investment in capital affected the status of Petitioner Units & thereby, they ceased to be SSI Units or then the Petitioners have violated any other term or condition of the 1979 Scheme. Appropriations made & expansions are now irreversible. No commercial concern can shoulder such a burden for past legal transactions. Therefore permitting [SECTION] to be used against the Petitioners will be inequitable & may result in killing the Units & defeat the 1979 Scheme which was deliberately designed to be broad-based.",
"29. We therefore find that interest of justice can be met with by directing the Respondents not to extend the provision of [SECTION] to the Petitioners if their Units never ceased to be SSI units during the eligibility period as per the eligibility & entitlement certificates granted to them. Accordingly, with this direction, we partly allow all three writ petitions by making Rule absolute. However, there shall be no order as to costs.",
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"HIGH COURT OF MADHYA PRADESH 1 Cr.A. No. 731/2016 HIGH COURT OF MADHYA PRADESH BENCH AT GWALIOR SINGLE BENCH: HON. SHRI JUSTICE ANAND PATHAK [CASE NUMBER] [ENTITY] Versus State of Madhya Pradesh Shri Rajmani Bansal, learned counsel for the appellant. Shri [ENTITY], learned Panel Lawyer for the respondent-State.",
"Judgment (07/09/2019) The present criminal appeal under [SECTION] of [ACT] is being preferred against the Judgment of conviction and order of sentence dated 11/08/2016 passed in [CASE NUMBER] by Special Sessions Judge, Shivpuri whereby appellant-[ENTITY] has been convicted under [SECTION] of [ACT] and sentenced to suffer 10 years rigorous imprisonment alongwith fine of Rs.5,000/- as well as under [SECTION] of [ACT] and sentenced to suffer 10 years rigorous imprisonment alongwith fine of Rs.5,000/- with default stipulation respectively.",
"2. Case of the prosecution in short is that on 14/12/2015 around 2 pm prosecutrix alongwith her cousin (daughter of uncle) was present in the house of her uncle. At the time of incident, her uncle went to HIGH COURT OF MADHYA PRADESH market to get compost and her mother alongwith aunty went to field to cut the grass. Her father went to Simliyai Village for some work. The accused-appellant around 2 pm came to her uncle house by jumping the wall and held the hand of the prosecutrix forcibly and when her cousin tried to snatch her hand the applicant pushed her and brought the applicant into the room and gave 2-3 slaps which rendered her unconscious and thereafter locked the door from inside and committed the rape over the prosecutrix. Thereafter, applicant ran away from the house and at that time [ENTITY] and [ENTITY] saw present applicant running from there. In the evening when father of the prosecutrix returned home then she narrated the event to him.",
"3. On complaint, police lodged FIR vide [CASE NUMBER] under [SECTION] and [SECTION] of [ACT] and [SECTION] of [ACT] (hereinafter referred as \"[ACT]\"). Prosecutrix was referred to medical examination. Medical report of the prosecutrix is placed as Annexure P-12 and medical report of the applicant is placed as Annexure P-13. During investigation, [ENTITY] of the spot was prepared vide Ex.P-",
"9. To establish the age of prosecutrix, her school certificate was submitted in which her date of birth was referred as 28/03/2004. Seizure of clothes and vaginal swab of prosecutrix and applicant were referred to Forensic Science Laboratory, Gwalior, report in this regard HIGH COURT OF MADHYA PRADESH is placed vide No.2549/2015. From prosecution side total ten witnesses were examined.",
"4. After filing of charge-sheet, case was committed to the Court of Sessions, where the Court framed charges under [SECTION] and [SECTION] of [ACT] and [SECTION] of [ACT] against the applicant.",
"5. Appellant abjured his guilt. He submits that he was innocent and falsely implicated in the matter because of the previous enmity with the witnesses.",
"6. After considering the evidence adduced by the prosecution, learned Special Judge, Shivpuri convicted and sentenced the appellant as mentioned above.",
"7. The learned counsel for the appellant submitted that the appellant was falsely implicated in the matter. He referred the medical report of the prosecutrix which indicates that no internal or external injuries were found over the person of the prosecutrix. It is further referred that no sign of recent intercourse was found over the person of the prosecutrix. He also referred the statements of PW-3 and PW-5 (father and mother of the prosecutrix) wherein father of the prosecutrix referred the fact about previous enmity. Testimonies of these witnesses cannot be relied because they have stated on the basis of hearsay evidence of prosecutrix. So far as testimony of eye- witness [ENTITY] (PW-7) niece of the prosecutrix is concerned, she also did not support the story of the prosecution to the fullest and HIGH COURT OF MADHYA PRADESH ultimately declared hostile. He submits that when any of the witnesses has not supported the story of the prosecution to the fullest as well as medical report also does not corroborate commission of offence, then the trial Court erred in convicting the appellant. He prayed for setting aside of impugned judgment of conviction and order of sentence.",
"8. Learned counsel for the respondent-State on the basis of record available opposed the prayer and supports the impugned judgment passed by the trial Court. He submits that the case involved provisions of [ACT] therefore, it is a serious offence. He prayed for dismissal of appeal.",
"9. Heard the learned counsel for the parties at length and perused the record appended thereto.",
"10. The case is in respect of conviction and jail sentence awarded for the offence under [SECTION] of [ACT] and [SECTION] of [ACT] and sentenced to suffer 10-10 years RI alongwith fine of Rs.5,000-5,000 with default stipulation.",
"11. The allegation over the appellant is in respect of house trespass with intention to commit rape over the girl who happens to be aged 11-12 years.",
"12. In the case in hand, oral and documentary evidence have been produced by the prosecution. Those pieces of evidence have to be seen on the anvil of [SECTION] of [ACT] wherein presumption HIGH COURT OF MADHYA PRADESH as to certain offences have been raised against the accused unless the contrary is proved. Therefore, it is to be seen whether evidence was sufficient enough or whether the appellant/ accused could prove his innocence by way of appreciation of documentary and oral evidence. In support of the prosecution case, father and mother of the prosecutrix (PW-3 and PW-5) respectively were examined beside other witnesses. Father [ENTITY] (PW-3) was away from the house when the incident took place at the relevant point of time and therefore, his testimony is mainly based upon the evidence of the prosecutrix. In his examination-in-chief, he did not refer the name of appellant and by way of hearsay evidence, he explained that prosecutrix has referred the commission of offence by a person wearing black clothes and covered the face with scarf. He referred the presence of his niece [ENTITY] (PW-7), but he did not support the story of the prosecution to the fullest therefore, declared hostile and in his examination-in-chief, he admits the fact that he has settled the matter with the accused but he denies the fact that because of settlement he is making false statement. He explained the fact that his daughter has referred the fact that person who committed rape wore the scarf. Therefore, identity has not been categorically established. He does not support the story of prosecution even in cross-examination by public prosecutor as well as by defence and appears shaky.",
"HIGH COURT OF MADHYA PRADESH",
"13. So far as mother of prosecutrix Smt. [ENTITY] (PW-5) is concerned, she narrates the incident wherein she referred the presence of her niece [ENTITY] (PW-7) at the time of incident in the house but she also declared hostile by the prosecution and in her cross- examination by the prosecution to ask leading questions, she accepted the fact that they have compromised with the accused but she also narrates the story in such a fashion wherein she refers the masked man (wearing scarf) entered the house and committed offence.",
"14. Prosecutrix (PW-4) was also examined by the prosecution in which she narrates the incident by referring the identity of the assailant who was wearing scarf and he took her to the room of her uncle [ENTITY] and closed the door and gave 2-4 slaps which rendered her unconscious and thereafter he committed rape over her. She does not referred the name of the appellant in her examination-in- chief. Obviously, declared hostile and cross-examined by the prosecution. In her cross-examination, she gave evasive reply. Neither she identifies the identity of the appellant, nor she conclusively explained about the commission of offence. Her testimony oscillated from one end to another, rendering the evidence shaky.",
"15. Another eye witness (beside prosecutrix herself) produced by the prosecution was [ENTITY] (PW-7), who happens to be the cousin of prosecutrix (daughter of uncle) and in the FIR and the statement of HIGH COURT OF MADHYA PRADESH [ENTITY] (PW-5) she was present at the time of commission of offence but in her examination-in-chief, she did not refer her presence at the place of incident at the time of commission of offence and therefore, declared hostile. She did not support the story of the prosecution even in cross-examination conducted by the prosecution.",
"16. In absence of credible evidence led by the victim party including the prosecutrix herself the evidence of expert witness Dr. [ENTITY] (PW-9), who examined the prosecutrix immediately after commission of offence assumes importance. In her examination-in-chief, in para 3, she concluded three material conclusions which may have the important ramification in the case in hand. One is that no sign of violence was found over the person of the prosecutrix. Another is, no injuries were found over the person of the prosecutrix and third, no sign or symptoms were found suggesting physical intercourse in recent time. Much credence is to be given to this testimony because narration of the story as per the FIR, statements recorded by the police and court statements of the witnesses indicate that at the time of incident, appellant forcibly dragged her, he to the room of her uncle [ENTITY] and after closing the door from inside he committed rape. Such incident, if would have been resisted by the prosecutrix then certainly some injuries (external as well as internal) might have occurred during the process and some scratch marks or injuries over her back or private part would have HIGH COURT OF MADHYA PRADESH been noticed by the doctor but no such reference finds place in the report.",
"17. Submission of the counsel for the respondent-State is that FSL report indicates that clothes and vaginal swab of prosecutrix contain male sperms therefore, presumption of rape assumes significance in the light of [SECTION] of [ACT] and [SECTION] of [ACT] but attending circumstances must also exist to prove the case and/ or to substantiate the presumption to the logical end.",
"[SECTION] of the [ACT] clarifies the Caveat about discharging of onus by incorporating the word \"Unless the Contrary is Proved\" and here the contrary material like expert opinion (PW-9), witnesses including prosecution and FSL report do not lead to implication. FSL report although refers the presence of sperms in the vaginal swab and clothes of the prosecutrix but in absence of matching the said sperms with the sperms of the appellant, it could not be treated as evidence proved beyond reasonable doubt that the appellant committed rape. This report if seen in juxtaposition to the oral evidence led by the prosecution witnesses then it is clear that the report cannot be the sole ground for conviction. In this regard, reliance can be placed over the mandate of the Hon'ble Apex Court in the case of [PRECEDENT], [PRECEDENT], [PRECEDENT] as well as [ENTITY] Vs. State of M.P., 2017 (1) MPJR 260.",
"18. Factum regarding non-matching of sperms of appellant viz a viz sperms found over vaginal swab or clothes of the prosecutrix is to be seen in juxtaposition to evidence of Dr. [ENTITY] (PW-9) wherein she said that no sign of intercourse was found during examination of prosecutrix whereas if the rape has been committed 24 hours back as alleged in the case of prosecution then sign of intercourse would have been definitely available specially looking to the fact that girl was only 11-12 years old and in all probability might not have been used to such biological process like intercourse. Even looking to her age and the course of event as narrated, some sign of resistance over her body or over the accused or even in the room where the incident took place would have remained present to tell the truth, but no such evidence has been quoted or referred to bring the accused into the ambit of implication.",
"19. When the oral evidence of prosecutrix, her family members is shaky, when father of the prosecutrix (PW-3) accepts in his cross- examination in para 7 that some dispute occurred with the accused family one year before the incident and since then they were not on talking terms therefore, possibility cannot be ruled out that being driven by the enmity and the feeling generated from the said dispute, led to registration of a false case against the accused.",
"HIGH COURT OF MADHYA PRADESH",
"20. One more relevant compliance, to be performed by the prosecution which was omitted to perform was of DNA test. [SECTION] of [ACT] mandates for examination of a person accused of rape by medical practitioner and language of the provision appears to be mandatory. Even otherwise, in the better administration of investigation and the procedure for investigation, it is imperative that in the case of rape, immediate DNA examination of accused be made. Corresponding provision has been incorporated under [SECTION] of [ACT] for the prosecutrix and the same has been incorporated for laudable purpose and to make the DNA obtained from the accused for matching with the DNA obtained from the victim of rape. The said amendment in [ACT] has been incorporated by the amendment act of 2005 and is in the Statue Book w.e.f. 23/6/2006 therefore, it was the duty of the Investigating Officer to have conducted the DNA examination of the accused as well as rape victim; specially, when the matter pertains to a child under the [ACT]. These aspects have been dealt with by this Court in the case of [ENTITY] (supra) and in the said case it was expected from the state government that they will provide adequate infrastructure for establishment of Forensic Science Laboratory for DNA examination and other related examinations.",
"21. Although, presumption under [SECTION] of the [ACT] is raised against the accused (unless contrary is proved) and here it HIGH COURT OF MADHYA PRADESH appears that neither the witness, nor the reports have proved the case and maintained the presumption. Rather, contrary is being proved. In other words, prosecution could not prove the case beyond reasonable doubt. It is oft quoted that \"Fouler the Crime Higher the Proof\" and it is also settled in law that if two theories run parallel in the case then the theory which supports the accused must be accepted (See: [PRECEDENT], [PRECEDENT], [PRECEDENT]).",
"22. Cumulatively, in the considered opinion of this Court, prosecution could not prove the case beyond reasonable doubt. Benefit ought to go to the accused because the facts of the case itself discharge the presumption and prosecutrix could not prove the case beyond reasonable doubt as well as could not maintain the presumption as per [SECTION] of the [ACT] through the evidence led.",
"23. When the offence under [SECTION] of [ACT] has not been proved beyond reasonable doubt then offence under [SECTION] of [ACT] shall also have to go because event is connected and in absence of any conclusive evidence in respect of offence under [SECTION] of [ACT], offence under [SECTION] of [ACT] also appears to be imposed on false pretext.",
"24. The trial Court erred in convicting the appellant and passing the HIGH COURT OF MADHYA PRADESH impugned judgment. Resultantly, judgment of sentence and order of conviction dated 11/08/2016 passed by Special Sessions Judge, Shivpuri in [CASE NUMBER] is hereby set aside. Appellant-[ENTITY], who is in jail is set free. Release warrant be issued in this regard.",
"25. A copy of this judgment be sent to the trial Court for information and compliance.",
"26. Appeal stands allowed and disposed of.",
"([ENTITY]) Judge vc VARSHA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, postalCode=474001, st=Madhya Pradesh, 2.5.4.20=df59fbf0f5c7485addc8affe3edf20e67d11d 7f91045d81139f6792fbd4ae91f, CHATURVEDI 2.5.4.45=0321008AE87CF73A0689160B013BB567F [CASE NUMBER], cn=[ENTITY] Date: 2019.09.20 17:35:00 -07'00'"
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"JUDGMENT [ENTITY], J.",
"1. The petitioner is an undertaking of the Kerala State Government and a company registered under the [ACT] (the Act). The petitioner entered into agreements with the suppliers of cement from Taiwan and South Korea for the importation of cement. A shipment of cement which was due to be berthed in Cochin had to be diverted to the Mangalore port on account of congestion in Cochin port and adequate berthing place was not available there.",
"2. The cement meant for the petitioner was unloaded in Mangalore port on account of supervening circumstances and the exigencies mentioned above. The said cement imported was meant for sale by the petitioner-company in kerala. Even before the consignment left Taiwan and South Korea, the buyers in kerala had placed orders with the petitioner for supply of cement and had made payments in advance also. After the cement was unloaded in Mangalore port, a part of the consignment was transported in trucks to Kerala and a part of the consignment was sent to the depots of the petitioner situated at various places in Kerala and part of the consignment was dispatched direct to its customers in Kerala. Such dispatches made to the customers directly from the Mangalore port to various places in Kerala where the customers were evidenced by dispatch orders. A few samples of the orders placed by the customers in Kerala are produced along with the writ petitions.",
"3. The petitioner has an office in Mangalore and is a registered dealer under the [ACT] (the Act), but has not registered under the [ACT], in Mangalore.",
"4. The petitioner had filed returns before the respondent for the years ending March 31, 1983 and March 31, 1984. A notice was issued to the petitioner on December 29, 1987, calling upon the petitioner to file returns under the [ACT]. In continuation of the said notice, two proposition notices, as per annexure F and G, were issued by the respondent on February 17, 1988, proposing to conclude the assessments under the [ACT] for the years ending March 31, 1983 and March 31, 1984. In these show cause notices it was proposed to conclude the assessments against the petitioner under the [ACT] in respect of the inter-State sales of cement effected by the petitioner out of the consignment cleared from the vessel - \"Katan-Keerthi\" on several dates during the two accounting years. These proposition notices are challenged by the petitioner in these writ petitions.",
"5. The case of the department is that the petitioner effected sales of cement from Mangalore to its customers in Kerala pursuant to the orders placed by its customers in Kerala. These sales constituted inter-State sales, according to the department, and the movement of cement from Mangalore to various places in Kerala State was pursuant to contract entered into by the petitioner with its customers in order to fulfil the prior orders. It was, therefore, proposed to subject the said inter-State sales to tax under the [ACT]. The reason set out in the show cause notices is reproduced below :",
"\"You have effected import of cement from foreign countries and obtained delivery thereof at Mangalore port. It is seen from the despatch sheets maintained by you that you have entered into contract with various consumers and dealers of Kerala State for supply of cement. To comply with these orders you have effected import of cement from foreign countries and taken delivery of the same at Mangalore port. Thereafter, to comply with your orders, you have effected transportation of cement from Mangalore port to various consumers as well as dealers. Such transaction constitutes inter-State sale of cement under [SECTION] of the [ACT], inasmuch as the movement of goods from Mangalore to Kerala State is directly as a consequence of and to comply with your prior orders. This view is supported by the Supreme Court decision in the case of [PRECEDENT] at page 475.\"",
"6. The case of the petitioner is that the cement imported by it from Taiwan and Korea was offloaded in Mangalore port due to supervening circumstances explained in the writ petition. According to the terms of the contract with the carriers, it was intended to be offloaded only at Cochin and the cement was meant for supplies to be made to its customers, who were within the State of Kerala. Since the ship was diverted to Mangalore port, the petitioners had necessarily to transport the cement imported from Mangalore to Kerala and the ship had to call at Mangalore port only by accident and not under a contract. Out of the cement so unloaded at Mangalore port, a part of it was sent to its depots and godowns in various places in Kerala and part of it was sent directly to the customers in Kerala who had placed orders for supply. It was, therefore, contended that the despatches of cement in lorries made by the petitioner to its customers in Kerala from Mangalore did not constitute inter-State sale and, therefore, does not attract [ACT]. The two proposition notices are, therefore, challenged on various grounds raised in the writ petitions.",
"7. Elaborating the contentions on behalf of the petitioner, it was argued by Sri. [ENTITY] :",
"(i) that the movement of goods commenced in Korea and Taiwan as soon as the cement was loaded in the ship and the Mangalore port was the only a port of transit or an intermediate port in the transit of goods from foreign countries, to Kerala;",
"(ii) that the movement of goods from Mangalore to Kerala was not caused by any sale or purchase in order to attract the provisions of [SECTION] of the [ACT];",
"(iii) that the transportation of offloaded cement from Mangalore port to Kerala was not on account of any sale or purchase, or to fulfil any contract of sale entered into in Karnataka;",
"(iv) that such supply of cement from Mangalore to Kerala and consequent movement from one State to another was not in contemplation between the parties; and",
"(v) the integrated movement from Taiwan/Korea to Kerala cannot be segregated and Central sales tax cannot be levied in Karnataka, since the movement did not commence from Mangalore.",
"8. The petitioner also filed objections before the respondent to the show cause notices, as per annexure \"J\". Since the respondent was not inclined to agree with the case of the petitioner, the writ petitions were filed challenging the proposition notices questioning the jurisdiction of the respondent to subject the entire consignment of cement unloaded in Mangalore to [ACT].",
"9. It was alternatively contended by Sri. [ENTITY], the learned counsel for the petitioner, that the respondent was not justified in adopting the value of the entire cement dispatched from Mangalore to various places in Kerala, which included the dispatches made to its godowns and despatches made directly to its customers, under the heading \"inter-State sales of cement\" for the two years in question.",
"10. In support of the propositions advanced by the learned counsel for the petitioner the ratio laid down by the Supreme Court in the earliest of the decisions in [PRECEDENT], was relied upon. The test laid down by the Supreme Court as explained in the said decision at page 679 was relied upon. The said passage is reproduced below :",
"\"The question then arises, when does a sale occasion the movement of goods sold ? It seems clear to us that a sale can occasion the movement of the goods sold only when the terms of the sale provide that the goods would be moved; in other words, a sale occasions a movement of goods when the contract of sale so provides.\"",
"11. In [PRECEDENT] , it was held, on facts, that the transaction between the assessee in that case and the buyer resulted in an inter-State sale and the sales to dealers outside the State of Bihar was evidenced by agreements entered into between the parties, and on facts, it was found that it was the intention of both the buyer and the seller that the trucks manufactured by the Tata Engineering and Locomotive Co. Ltd., should be delivered at places outside the State of Bihar. Such supply was made in accordance with the terms of the contract between the parties. The Supreme Court applied the principles enunciated in the three decisions rendered earlier in (page 149) : [PRECEDENT] ; [PRECEDENT] and [PRECEDENT] , and reiterated the same thus :",
"\"The decided cases establish that sales will be considered as sales in the course of export or import or sales in the course of inter-State trade and commerce under the following circumstances :",
"(1) When goods which are in export or import stream are sold;",
"(2) When the contracts of sale or law under which goods are sold require those goods to be exported or imported to a foreign country or from a foreign country as the case may be or are required to be transported to a State other than the State in which the delivery of goods takes place; and (3) Where as a necessary incidence of the contract of sale goods sold are required to be exported or imported or transported out of the State in which the delivery of goods takes place.\"",
"12. It is unnecessary to refer in detail to all the three decisions, referred to above, except to the observations made by the Supreme Court in [PRECEDENT] at page 380 :",
"\"Even the Assistant Commissioner found that on some occasion vehicle had been moved from a stock-yard in one State to a stock-yard in another State. It is not possible to comprehend how in the above situation it could be held that the movement of the vehicles from the works to the stock-yards was occasioned by any covenant or incident of the contract of sale. As regards the so-called firm orders it has already been pointed out that none have been shown to have existed in respect of the relevant periods of assessment. Even on the assumption that any such orders has been received by the appellant they could not be regarded as anything but mere offers in view of the specific terms in exhibit I (the dealership agreement) according to which it was open to the appellant to supply or not to supply the dealer with any vehicle in response to such order. What was, therefore relevant was the acceptance of firm orders occasioning the movement of vehicles out of the State of Bihar.\"",
"13. The two decisions of the Madras High Court in :",
"(i) [PRECEDENT], and (ii) [PRECEDENT], were relied upon by the learned counsel. The observations made by the Madras High Court in the said decisions, were strongly relied upon by the learned counsel for the petitioner. In the said decisions, it was observed, inter alia, that it is immaterial wherefrom the seller procures the goods even from a place outside the State and it was held that in the absence of any contract between the parties to supply the goods from outside the State, the transactions were not inter-State in character.",
"14. So far as the jurisdiction of the Commercial Tax Officer, Mangalore, the respondent, to issue the proposition notice is concerned, in the present cases, it was urged that it was not established, on facts, by the respondent, that his action to levy Central sales tax on the petitioner, was justified.",
"15. On the question of jurisdiction, the ratio of the Supreme Court in [PRECEDENT], was relied upon by the learned counsel. The Supreme Court laid down, dismissing the petition of the Commissioner, that a condition precedent for imposing sales tax under the [ACT], was not satisfied in that case, and that the onus lies on the Revenue to disprove the contention of the dealer that a sale is a local sale and to show that it is an inter-State sale.",
"16. On behalf of the Revenue it was argued by Sri [ENTITY], the learned Government Advocate, that from the facts set out and the material found in the show cause notices, the action of the respondent to levy Central sales tax on the petitioner was perfectly justified. It was contended by Sri [ENTITY] that there was sufficient material, on record and the information collected from these materials by the department justified the levy of Central sales tax, on the petitioner. It was submitted, in all fairness, by the learned Government Advocate that only the dispatches made directly to the customers from Mangalore to the customers in Kerala, would be the subject-matter of assessment under the [ACT], and not the despatches made to the petitioner's godowns at various places in Kerala. The writ petitions were also opposed by the learned Government Advocate on the ground that it should be left to the assessing authority under the Act, to record a finding after considering the various materials on record and also to examine whether the transactions in question, attracted levy of Central sales tax. In support of this contention the learned Government Advocate relied on the decision of the Supreme Court in : [PRECEDENT].",
"17. Strong reliance was placed by Sri [ENTITY] on the decision of the Supreme Court in [ENTITY] Steel and Press Works Ltd. v. Commercial Tax Officer . Reliance was also placed by the learned Government Advocate on the observations of the Supreme Court in [PRECEDENT] and [PRECEDENT].",
"18. Adverting to the last of the cases first ([PRECEDENT]), the following observations made by Sri [ENTITY], J., at page 449, was strongly relied upon by the learned Government Advocate :",
"\"No matter in which State the property in the goods passes, a sale which occasions 'movement of goods from one State to another is sale in the course of inter-State trade'. The inter-State movement must be the result of a covenant, express or implied, in the contract of sale or an incident of the contract. It is not necessary that the sale must precede the inter-State movement in order that the sale may be deemed to have occasioned such movement. It is also not necessary for a sale to be deemed to have taken place in the course of inter-State trade or commerce, that the covenant regarding inter-State movement must be specified in the contract itself. It would be enough if the movement was in pursuance of and incidental to the contract of sale.\"",
"19. The decision of the Supreme Court in [PRECEDENT] was also cited by Sri [ENTITY], for the following proposition :",
"\"If there is a conceivable link between a contract of sale and the movement of goods from one State to another in order to discharge the obligation under the contract of sale, the interposition of an agent of the seller who may temporarily intercept the movement ought not to alter the inter-State character of sale.\"",
"20. The learned Government Advocate also distinguished each one of the decisions relied upon by Sri [ENTITY], the learned counsel for the petitioner, and submitted that there was enough material and evidence on record to justify the proposed levy.",
"21. Let me now advert to the decision of the Supreme Court in [ENTITY] Steel and Press Works Ltd. v. Commercial Tax Officer , since in my opinion, the Revenue must succeed or fail on the applicability of the tests laid down by the Supreme Court. Sri [ENTITY], J. (as he then was), to the facts of the present case.",
"22. The assessees in that case had challenged, by way of a writ petition under [SECTION] of the [ACT], the assessment order made for the year 1979-80 and proposed action to reopen the assessment for the years 1977-78 and 1978-79. The facts arising in that case are summarised in para 7 of the judgment. The branch offices of the petitioner-company situated outside the State of Andhra Pradesh had procured orders for the supply of goods with definite specifications from the customers outside the State. On such orders, the head office at Hyderabad manufactured and supplied the goods in accordance with the specifications and despatched the goods from Hyderabad to the branch offices and the branch offices despatched the goods, in turn, to its customers outside the State. On these facts, it was found that all activities, including the booking orders, sales, despatching, billing and receiving of the sale price were all carried on by the branch offices. On these admitted facts it was held by the Supreme Court that the Commercial Tax Officer was justified in his finding that the transactions were inter-State sales. It was observed, on the basis of the facts found by the Commercial Tax Officer, that the movement of goods from Hyderabad to stations outside the State was an incident of the contract incorporated in the orders placed by the customers with the branch offices and, therefore, the transactions attracted levy of Central sales tax.",
"23. In this context it also becomes necessary to advert to the tests laid down by the Supreme Court for the said conclusion. Explaining the guide-lines the Supreme court in paragraph 8 of its judgment sets out the facts and the ratio. I, therefore, reproduce the entire paragraph, which reads thus :",
"\"8. The petitioners challenge the finding of the Commercial Tax Officer that the transactions in question constitute inter-State sales. The petitioners contend that when the registered office of the company at Hyderabad despatched the manufactured goods to its branch office it was merely a transfer of stock from the registered office to the branch office, and thereafter the movement of the goods started from the branch office to the buyer. It is urged that the registered office and the branch office were separately registered as dealers under the [ACT] and transactions effected by the branch office could not be identified with transactions effected by the registered office. The movement of the goods from Hyderabad to the branch office, it is said, was only for the purpose of enabling the sale by the branch office and was not in the course of fulfilment of the contract of sale. We are unable to agree. Even if, as in the present case, the buyer places an order with the branch office and the branch office communicates the terms and specifications of the orders to the registered office and the branch office itself is concerned with the sales, despatching, billing and receiving of the sale price, the conclusion must be that the order placed by the buyer is an order placed with the company, and for the purpose of fulfilling that the order the manufactured goods commerce their journey from the registered office within the State of Andhra Pradesh to the branch office outside the State for delivery of the goods to the buyer. We must not forget that both the registered office and the branch office are offices of the same company, and what in effect does take place is that the company from its registered office in Hyderabad takes the goods to its branch office outside the State and arranges to deliver them to the buyer. The registered office and the branch office do not possess separate juridical personalities. The question really is whether the movement of the goods from the registered office at Hyderabad is occasioned by the order placed by the buyer or is an incident of the contract. If it is so, as it appears no doubt to us, its movement from the very beginning from Hyderabad all the way until delivery is received by the buyer is an inter-State movement. In [PRECEDENT] , this Court held that when the movement of the goods from one State to another is an incident of the contract it is a sale in the course of inter-State sale, and it does not matter which is the State in which property in the goods passes. What is decisive is whether the sale is one which occasions the movement of goods from one State to another. It was also pointed out that the branches had no independent and separate entity, that they were merely different agencies, and even where a branch office sold the goods to the buyer it was a sale between the company and the buyer. It is true that in that case the goods, on manufacture at the Madras branch factory, were directly despatched to the Bombay buyer at his risk and all prices were shown f.o.r. Madras, and the goods were delivered to the Bombay buyer at Bhandup through clearing agents. In the instant case, the goods were despatched by the branch office situated outside the State of Andhra Pradesh to the buyer and not by the registered office at Hyderabad. In our opinion, that makes no difference at all. The manufacture of the goods at the Hyderabad factory and their movement thereafter from Hyderabad to the branch office outside the State was an incident of the contract entered into with the buyer, for it was intended that the same goods should be delivered by the branch office to the buyer. There was no break in the movement of the goods. The branch office merely acted as a conduit through which the goods passed on their way to the buyer. It would have been a different matter if the particular goods had been despatched by the registered office at Hyderabad to the branch office outside the State for sale in the open market and without reference to any order placed by the buyer. In such a case if the goods are purchased from the branch office, it is not a sale under which the goods commenced their movement from Hyderabad. It is a sale where the goods moved merely from the branch office to the buyer. The movement of the goods from registered office at Hyderabad to the branch office outside the State cannot be regarded as an incident of the sale made to the buyer.\"",
"24. The Supreme Court also referred to its earlier three decisions in :",
"(a) [PRECEDENT], and the two decisions for covering the opposite situations in :",
"(b) [PRECEDENT];",
"(c) [PRECEDENT].",
"25. It is the settled law as to when a sale becomes an inter-State sale as enunciated by the Supreme Court in a series of decisions right from the first Tata case in the year [PRECEDENT], and reiterated in the second and third Tata cases reported in [PRECEDENT] and reiterated in the subsequent decisions, viz.,",
"(i) [PRECEDENT];",
"(ii) [PRECEDENT]; and",
"(iii) [ENTITY] Steel and Press Works Ltd. v. Commercial Tax Officer .",
"26. To sum up the ratio of the various decisions mentioned above, the position of law or the ratio that emerges from the interpretation placed by the Supreme Court in those decisions is this :",
"(i) that an inter-State sale takes place when there is movement of goods from one State to another;",
"(ii) that such inter-State movement must be the result of a covenant, express or implied in the contract of sale or as an incident of the contract;",
"(iii) that such a covenant need not be specified in the contract itself and it would be enough if the movement was in pursuance of and incidental to the contract of sale;",
"(iv) that there should be a conceivable link between a contract of sale and the movement of goods from one State to another.",
"27. It must (be held ?) on a careful examination of the terms of the contract and the distinguishing facts of each case, that for attracting [SECTION] of the [ACT], the movement of goods should be pursuant to a covenant in the contract of sale or as an incident of the contract. [ENTITY]'s case does not assist the department both on facts as well as on law.",
"28. In the present case, the State has failed to make out a prima facie case of an inter-State sale and that the movement of goods from Mangalore to Kerala was as a result of sale which took place in Mangalore. The situs of sale becomes very important since the movement must be occasioned by the sale. If sale has taken place in Kerala, according to the petitioners and that there was no such covenant, or agreement between the parties that the supply of cement must be made from Mangalore office of the petitioner-corporation, it cannot result in an inter-State sale by the mere transport of cement from Mangalore to the customers in Kerala. The circumstances under which the transport of cement took place must be accepted as the correct position and no case is made out to disbelieve the petitioner's reason given for the movement of goods from Mangalore to Kerala.",
"29. In my opinion, this is an eminently fit case to interfere at the stage of proposition notices, since the ingredients to apply [SECTION] of the [ACT], are totally absent in this case and the petitioner should not be exposed to the proceedings of assessment resulting in demands and driving the assessee to challenge the same in appeals provided under the Act.",
"30. It must be noticed in this context that the learned Government Advocate was not able to produce the invoices referred to in the statement of objections in support of his contention that the sale took place in Mangalore and the movement of goods form mangalore to Kerala was pursuant to the said sale.",
"31. For the reasons stated above, these writ petitions are allowed and the proposition notices dated February 17, 1988 (annexures \"F\" and \"G\"), are quashed.",
"32. Writ petitions allowed."
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[
"1 IN THE HIGH COURT OF JHARKHAND AT RANCHI L. P. A. No. 600 of 2017",
"[ENTITY] through its State Project Director , Ranchi Appellant/Respondent Versus",
"1. M/s. [ENTITY] Proprietor Apex Products Private Limited, Ranchi Contesting Respondent/Writ Petitioner",
"2. [ENTITY]",
"3. [ENTITY] through Principal Secretary, Ministry of Human Resources Development, Govt. of India, New Delhi",
"[ENTITY] Performa Respondents/Respondents With L. P. A. No. 03 of 2019 The [ENTITY] through Principal Secretary, HRD cum [ENTITY] Appellant/Respondent no. 1 Versus",
"1. M/s. [ENTITY] Respondent No. 1/Writ Petitioner",
"2. Principal Secretary, Human Resources Department (HRD), [ENTITY] (UOI), New Delhi Respondent No. 2/Respondent no. 4",
"3. [ENTITY] Respondent No. 3/Respondent no. 2.",
"4. [ENTITY] Respondent No.4/Respondent No.3",
"Coram: Hon'ble the Chief Justice Hon'ble Mr. Justice [ENTITY] For the Appellant -[ACT] : Mr. [ENTITY], Adv For the Respondent No. 1-",
"M/s. [ENTITY] Proprietor) : Mr. [ENTITY], Sr. Adv.",
"Mr. [ENTITY], Sr. Adv.",
"Mr.[ENTITY],Adv.",
"For Respondent [ENTITY] : Mr. [ENTITY], Adv.",
"For the Appellant-[ENTITY] : Mr. [ENTITY], S.C For the Respondent no. 1",
"Ms. [ENTITY] Proprietor : Mr. [ENTITY], Sr. Adv.",
"Mr. [ENTITY], Sr. Adv.",
"Mr.[ENTITY],Adv.",
"For Respondent [ENTITY]: Mr. [ENTITY], Adv. For the Respondent no.3-[ACT] : Mr. [ENTITY], Adv.",
"Reserved on: 28.02.2019 Pronounced on: 23/04/2019",
"[ENTITY], J: Being aggrieved with the judgment dated 19th September, 2017 rendered by learned Single Judge in [CASE NUMBER], Respondent-[ENTITY] and the Government of Jharkhand are in appeal before us. By the impugned judgment, learned Single Judge has directed the respondent nos. 1, 2 and 3 appellants herein to arrange payment of the admitted outstanding dues of Rs. 11,61,70,081/- with interest at the rate of 6% from the date it became due, within three months from the date of receipt or production of the order.",
"2. Writ petitioner had approached the First Court for quashing of the order dated 5th June, 2014, by which the respondents refused to release their outstanding dues in terms of the agreement dated 25th September, 2012 towards printing and supply of text books for Class-VIII for academic session 2013-14. Learned Court held that the writ petitioner was entitled to invoke the jurisdiction of the Court under [SECTION] of the [ACT] for enforcement of contractual obligation. As such, it held as under: -",
"\"53. As stated above it is evident from the work order and agreement dated 25.09.2012(Annexure-21) that there is no clause or stipulation that the consideration amount of the contract would be paid subject to condition or approval for release of the fund by the Central Government. The contract has to be interpreted in terms of the words and expression used therein. To reiterate, it is emphasized that agreement was a lawful agreement and the respondents were bound to fulfill the terms and conditions of the agreement/contract.",
"54. In this context it would be relevant to refer to the observation of Supreme Court in the case of [PRECEDENT] wherein in placitum 'b' of para 3 it has been observed \" even in an area of contractual relation, the State and its instrumentality enjoined with the obligation to act with fairness and in doing so they can take into consideration only relevant materials. They must not take any irrelevant consideration while arriving at a decision. The arbitrariness should not appear in their action or decision \"",
"It is evident that the order dated 05.06.2014 is in contravention of [SECTION] of the [ACT] which includes not only what right is infringed but it also extends to the arbitrariness and unreasonable of an action or act done by the authority, i.e., the State.",
"55. In terms of the agreement contractual and constitutional obligation is cast on the respondents to abide by the terms of agreement. In this connection the decision in the case of M/s. Setu Printers(Supra) as relied on by the petitioner is applicable. In the said decision reference and reliance has been placed on the observation of the Supreme Court in the case of [PRECEDENT] is as follows \" that in an appropriate case writ petition arising out of contractual obligation is maintainable and merely because some disputed facts arise the same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule. That the writ petition involving consequential relief of monetary claim is also maintainable and there is no dispute with respect to the above principle.\"",
"56. From the facts delineated hereinabove, it is not disputed that the agreement(Annexure-21) was entered into between the petitioner and the respondent no.2. The contract value was Rs.16,62,79,595/- and he was paid an advance of Rs.4,88,86,200/-. It is evidenced from the facts elucidated in the foregoing paragraphs that due to financial impropriety committed by the State officials, the Central Government had directed the State Government to enquire into the matter, then fix the responsibility on the guilty person. The violation of the rule or procedure was with respect to the tender process committed by the officials. The allegations were not with respect to the contract for printing and supply of the text books by the petitioner rather it was against the stockiest and manufacturer of paper.",
"57. The petitioner has supplied the books in terms of the agreement and despite repeated representations the respondents have denied payment by taking refuge of letter dated 18.10.2013 of MHED, GOI. The dispute with respect to release of fund for the financial impropriety is between the respondent/State and the Central Government. In such circumstance, the petitioner cannot be denied the payment of Rs.11,61,70,081/- on account of fault of the officials of respondent/State as this would amount to penalising the petitioner for no fault of his, especially when he has completed the work order in terms of the agreement and supplied the text books under the lawful agreement.",
"58. The argument of the learned counsel for the respondents that the facts are in dispute is not acceptable particularly when they have not controverted that the outstanding amount in terms of the contract is to be paid to the petitioner. The excuse that they cannot pay due to the freezing of the [ACT] funds/[ACT] Account is patently fallacious because the MHRD, GOI has not found any fault or lacuna with respect to the validity of the agreement. MHRD has advised the respondents to arrange for payment of the amount to the printers from State's own resources and not from the [ACT] fund.",
"59. In view of the undisputed facts the contention of the respondent/State that the petitioner cannot invoke the jurisdiction of the Court under [SECTION] for enforcement of contractual obligation is misconceived and not tenable, consequently the letter dated 05.06.2014(Annexure-14) containing the conditional payment is quashed and respondent nos.1,2 and 3 are directed to arrange payment of the admitted outstanding dues of Rs.11,61,70,081/- with interest at the rate of 6% from the date it became due, within three months from the date of receipt/production of this order.",
"60. In the result, the writ petition stands allowed.\"",
"3. Before us appellant-[ENTITY] (for short 'J.E.P.C') has urged the following grounds:",
"[ACT] is an implementing agency of \"Sarva Siksha Abhiyan\"",
"Scheme ( for short 'S.S.A.') jointly run by the Government of India and the [ENTITY], with their proportionate share of funding in the ratio of 60:40 in the Financial Year 2013-2014. Since the Government of India, MHRD received complain relating to the very tender process, allotment of work and supply of books as suffering from financial impropriety, it directed the [ACT] not to make payments from the [ACT] funds by letter dated 18th October 2013. Since [ACT] was prohibited from making payment, the writ petitioner had approached the learned First Court in [CASE NUMBER]. This writ petition was disposed of by order dated 31st October, 2014 directing the [ACT] to decide upon the representation of the writ petitioner by passing a reasoned order. In consequence of the direction of the Writ Court, the impugned order dated 5th June, 2014 was passed by [ACT] holding that payment cannot be made to the contractor till the prohibition was lifted and corresponding funds were released. In the present writ petition, the writ petitioner has not challenged the order dated 18 th October, 2013 of Government of India but has assailed only the consequential order dated 5th June, 2014. Relying upon the ratio in the case of [PRECEDENT], para-22, it has been urged that the writ petition was not maintainable on that score. During course of argument, it has been pointed out by the appellant that the writ court by an interim order dated 11th February, 2015 had allowed liberty to the petitioner to file an appropriate application seeking amendment in the writ petition, after the copy of order dated 18th October, 2013 was made available to it, which the writ petitioner did not choose to challenge. As such, the writ petitioner had no locus to question the consequential order passed by [ACT] repudiating the money claim.",
"4. Relying upon Clause 24 of the agreement which provides for settlement of dispute and [SECTION] of the Special Condition of Contract contained in the tender document, it has been strongly urged that the writ petition is not maintainable on account of the availability of an alternative dispute resolution mechanism in the nature of arbitration. It has been further urged by the appellant that [ACT] is merely an agent as per [SECTION] of the [ACT] of both the principal employer i.e., Government of India and [ENTITY], which are essential parties to the dispute. Since the agreement provides for arbitration of disputes and [ACT] is only an agent of the principal employer, the writ petition is not maintainable as per mandate of the Apex Court rendered in the case of Joshi Technologies International Inc. Vs. [ENTITY] reported in (2015) 7 SCC 728, Paras- 69.2, 69.4 and 70.4. The case of [PRECEDENT], paragraphs 14, 18, 19, 22 and 24, whereof has been relied in support on this proposition. Appellants have also placed reliance on a judgment of learned Division Bench of this Court dated 9th October, 2018 in [CASE NUMBER] [[PRECEDENT], paragraphs, 2, 6 and 8. It has been finally urged that the instant case involves adjudication on various questions of fact which are in dispute, therefore resort to writ jurisdiction is not the proper remedy. Learned counsel for the appellant has submitted that in [CASE NUMBER], learned Writ Court had granted liberty to arrange the funds from the Government of India and did not award any interest on such a claim which also related to printing and supply of text books. The claim of the writ petitioner on interest also raises a serious question of dispute which cannot be adjudicated in a writ proceeding or the Letters Patent Appeal. Therefore, the impugned order is fit to be quashed.",
"5. Appellant-[ENTITY] has taken a plea that [ACT] is a Centrally Sponsored Scheme with a share of funds in the ratio of 60:40 between the Central Government and the State Government. However, the learned writ court without appreciating this aspect of the matter has directed the respondent nos. 1, 2 and 3 to arrange the payment of admitted outstanding dues despite prohibition by the Government of India to do so by its letter dated 18th October, 2013 which is not under challenge. In this regard, letter dated 18th October, 2013 has been placed before the Court. Learned Writ Court has made no adjudication regarding the liability for payment between the Government of India and State Government, though the claim arises out of contractual obligation and contains arbitration clause. The State Government is not at fault in not releasing the entire claim of the writ petitioner as under the scheme and the contract it is supposed to pay 40% of the dues funds from the state shares accumulated in the [ACT], whereas the Ministry of Human Resources, Government of India had clearly advised the Government of Jharkhand not to make any expenditure for such procured text book from the funds of [ACT] in its letter dated 18th October, 2013. It is the plea of the State Government that the writ petition is not maintainable in such circumstances and no direction to pay the entire dues could have been issued upon the State Government and [ACT].",
"6. On the part of the writ petitioner, learned Senior Counsel, Mr. [ENTITY] has made the following submissions:",
"The tender for printing and supply of NCRT Text Books of Class I to VIII for Academic Sessions 2013-14 issued by the [ACT] as a licensee of NCRT is in furtherance to the constitutional mandate under [SECTION] of the [ACT] and The [ACT]. Annexure-1 to the writ petition containing the tender document dated 25th August, 2012 is referred to in support. This petitioner was a successful tenderer who was awarded work order of value of Rs. 16,62,79,595/- vide Annexure-6 dated 25th September, 2012. Upon award of some packages of the work vide letter dated 24th September, 2012 (Annexure-5 to the writ petition), advance payment of Rs. 4,88,86,200/- were released by the council in favour of the writ petitioner. The agreement entered between the writ petition and [ACT] dated 25th September, 2012 stipulated that payments were to be made by the council alone. It did not mention that the liability for payment was conditional upon receipt of money from the Central Government. Writ petitioner duly supplied the text books except some insignificant delay at one place and requested for payment as per contract. Thereafter, it approached the Writ Court in [CASE NUMBER] since no payments were forthcoming. Pursuant to the direction of the Writ Court dated 31st March, 2014 the council passed a reasoned order dated 5th June, 2014 (Annexure-14 impugned in the instant writ petition), whereunder it admitted that an amount of Rs. 11,61,70,081/- is due and admissible but because of the Central Government letter dated 18th October, 2013 restraining the payments to be made from [ACT] funds, payments could not be made to the petitioner. Therefore, petitioner laid challenge to the same in the instant writ petition and sought direction upon the council and State to make payments. Reference has also been made to the report of Three Men High Power Committee which enquired into the matter. As per the writ petitioner, the committee advised the State Government for release of fund for paying the printers. This report is Annexure-5 to the L.P.A dated 4th June, 2015. Learned Senior Counsel for the writ petitioner/respondent has also adverted to the letter dated 18th October, 2013 and submitted that the Central Government only directed that State must not utilize [ACT] fund for procuring the text book but there was no direction not to pay at all to the printers. The Central Government in its letter dated 13th June, 2016 (Annexure-4 to L.P.A) has clarified that there was no privity of contract between the Central Government and the printers. It was open for the State to pay from its own funds since the State has utilized the supplies made by the writ petitioners and it is the primary beneficiaries of the book so supplied. The contract was between the council and the printers, therefore, it is the liability of the State and the council to make the payment. Therefore, learned writ court upheld the plea raised by the writ petitioner and directed the Respondent-State and [ACT] to make the admissible payments with interest.",
"7. Letter of Chief Secretary, Jharkhand to Government of India dated 13th August, 2018 (Annexure-E to the counter affidavit of the writ petitioner/respondent in L.P.A) also has been referred to. It indicates that Three Men Committee has not found any anomaly. It has also been indicated that non-payment of admitted dues to the printers has resulted in futile litigation whereunder liability is increasing day by day due to rising interest burden. Therefore, request for sanction has been made. It has been brought to the Court's notice that the entire money has been deposited along with interest in the Court by the State Government in pursuance of the contempt matter before learned Single Judge. Writ petitioner has urged that [ACT] is a State under [SECTION] of the [ACT] and has to act under the mandate of [SECTION] of the [ACT] read with provisions of [ACT]. Thus, the claim of the writ petitioner does not lie in private law domain. The Central Government has not prohibited the State Government or [ACT] to pay the admissible dues of the printers through its letter dated 18th October, 2013 and the subsequent letter dated 13th June, 2016.",
"8. The plea on the availability of arbitration clause has been repelled by the writ petitioner stating that the Central Government is not a party to the agreement, therefore, there cannot be arbitration involving Central Government. Moreover, there is no dispute between the petitioner and the Central Government. Further since the liability has been admitted by [ACT], there is no need to resort for arbitration as there is no dispute in existence. In this regard reliance is placed on the case of [PRECEDENT]. Learned senior counsel for the appellant has relied upon a judgment of the Bombay High Court rendered in the case of [PRECEDENT] also in the case of [PRECEDENT] and submitted that the State Government or the [ACT] cannot suffer the writ petitioner for their own fault.",
"9. He has further submitted that the terms of the agreement between the [ACT] and the writ petitioner cannot be novated to make the payment conditional on release of funds by the Central Government. In support of the aforesaid submissions, reference is made to the case of [PRECEDENT] Another limb of argument of the writ petitioner is that the State is required to act in just and fair manner without resorting to technicalities and not deny what is due and admissible to the writ petitioner. Learned Senior Counsel for the appellant submits that the State cannot act as a Jekyll and Hyde personality even in the contractual field as held by the Apex Court in [PRECEDENT]. The writ petition is therefore wholly maintainable. It is submitted that the learned Writ court has after due consideration of the case of the parties rightly upheld the plea raised by the writ petitioner under [SECTION] of the [ACT] and directed the admissible payments to be made along with interest. The judgment of the Apex Court rendered in the case of [PRECEDENT] has been referred to in support. According to the writ petitioner, since the amount is not in dispute, rather admitted, writ petitioner is entitled to receive the entire admissible dues as ordered by the writ court along with interest. The writ petitioner is suffering huge loss of capital and is facing liability to pay recurring interest to the Bank so long the payments are not released. The dispute between the State Government/[ACT] and the Central Government should not come in the way of the release of the admissible dues to the writ petitioner. Reference is made to the case of [PRECEDENT]. On behalf of the writ petitioner reliance has also been placed on the case of [PRECEDENT], paragraphs 19, 21 and 22 on the proposition that when the writ petitioner did not commit any breach or irregularities in the supply, [ACT] was bound to release the payment as per the terms of the agreement. It cannot withhold payment on the plea that funds have not been allocated by its principal employer.",
"10. On behalf of [ENTITY], Ministry of Human Resource Development (MHRD) it is submitted that the decision of the [ENTITY] contained in letter dated 18th October 2013 was taken after examining the inquiry report of the State Government. It was found that there was clear violation of [ACT] in the procurement of text books for the year 2013-14 leading to serious financial impropriety. The Government of Jharkhand was advised that no expenditure for such procured text books should be incurred from the funds of centrally sponsored scheme of [ACT]. Writ petitioner had made a prayer for calling this letter dated 18.10.2013 and challenge it, but it was not challenged by the writ petitioner even after it was brought on record. Therefore, it is precluded from assailing it in the instant LPA. [ENTITY] has taken a plea that there was no privity of contract between the writ petitioner and the [ENTITY] since agreement was entered into with the [ACT]. Therefore, the liability is of the [ENTITY] and [ACT] to make payment to the petitioner in accordance with the State Government's own procedure for procurement of supplying text book. MHRD, GOI has not put any restriction/ban on payment for printing of text books from State's own resources. MHRD, Government of India has vide letter dated 27 th March 2015 and through letter dated 13th June 2016 clarified its stand as earlier indicated through letter dated 2nd July 2014. The State Government was advised not to incur any expenditure for such procured text books from the funds of centrally sponsored scheme.",
"11. We have heard the learned counsel for the parties at length and given anxious consideration to the rival pleas advanced by them. Relevant material facts germane to the issue in controversy can be briefly stated as follows:",
"M/s. [ENTITY], Ranchi obtained a work order dated 25th September 2012 for printing and supply of text books for the academic session 2013-14 for Class-VIII for an estimated value of Rs.16,62,79,595/-. An agreement was entered into between the [ACT] and M/s [ENTITY], Ranchi. Supplies were made by the Printer and about 30% of the value of the work was paid in advance to the tune of Rs.4,98,83,878/- upon furnishing of bank guarantee. On the other hand on receipt of a complaint by one Shri [ENTITY] an inquiry was conducted upon direction of the MHRD, GOI by the Government of Jharkhand. That inquiry report is at Annexure-5 to the LPA under the signatures of the Principal Secretary, Planning and Development Department, Government of Jharkhand; the Principal Secretary, Finance Department, Government of Jharkhand and the Development Commissioner, Jharkhand. This report was forwarded to the MHRD, Government of India for examination by letter dated 25 th September 2013. MHRD, Department of School Education and Literacy, Government of India examined the report and vide its letter dated 18 th October 2013 advised the Government of Jharkhand not to undertake expenditure for such procured text books from the funds of centrally sponsored scheme of [ACT]. It also advised to fix the responsibility for the serious financial impropriety and take action against those found guilty in the procurement of the text books. When the payments were not being made to the writ petitioner, he approached the Writ Court in the first round of litigation in [CASE NUMBER]. That writ petition was disposed of by order dated 31st March 2014 directing the respondent nos. 3 and 4 to consider the petitioner's representation and pass a reasoned order within six weeks. It was observed that if any amount is found due and payable, admitted amount should be paid to the petitioner within 4 weeks thereafter. Pursuant thereto the order dated 5th June 2014 bearing memo no.[ACT]/1008 was passed which was the subject matter in writ petition being [CASE NUMBER] from which this appeal arises.",
"12. Perusal of the order dated 5th June 2014 passed by the State Project Director indicates that an amount of Rs.11,61,70,081/- were found payable to the writ petitioner M/s [ENTITY] after certain deductions. However, [ACT] expressed its inability in making payments since the MHRD, Government of India had vide letter dated 18th October 2013 restrained it from doing so from [ACT] fund. One more noticeable fact necessary to be mentioned herein is that the writ petitioner had also made a prayer to direct the respondents to bring on record the order dated 18 th October 2013 of the MHRD by which it had unilaterally ordered for stoppage of release of payment related to print of text books by the petitioner and also sought quashing of the same and consequent order for release of the admitted dues of the petitioner. However, though such letter was brought on record and the learned Writ Court by an order dated 11 th February 2015 allowed liberty to the petitioner to file appropriate application seeking amendment in the writ petition but the writ petitioner did not chose to challenge it.",
"13. In this factual background, on consideration of the rival pleadings and submission of the parties, the Writ Court rejected the objection on plea of maintainability of the writ petition for enforcement of contractual obligation and quashed the letter dated 5th June 2014. It directed respondent nos. 1, 2 and 3 who were the Secretary, H.R.D. cum State Project Director, [ACT] and officials of the [ACT] to arrange payment of admitted outstanding dues of Rs.11,61,70,081/- with interest @ 6% from the date it became due within three months from the date of receipt of the order. It is pertinent to mention here that the Writ Court at para-39 of the judgment observed that it is not disputed that [ACT] was created and constituted under the Sarv Siksha Abhiyan ([ACT]) scheme of Central Government. Upon examining the composition and hierarchical structure of [ACT], it was of the view that the Council is controlled by the Government financially, functionally and administratively meaning that the Government's control is all pervasive. It also took note at para-40 of the judgment that 'It is admitted that the funds are provided by the Central and State Government'. Further at para-47 it again observed as under:-",
"\"47. Admitted position is that the financial funding is in the ratio of 60:40 by the Central Government and State Government. It is noticed that the object and purpose of the scheme was monitored by the Government officials. It is well settled that the words \"any person or authority\" used in [SECTION] is not confined to statutory authority and instrumentality of the State rather they govern any person or body which is performing the public duty.",
"It is noticed that since the respondent did not have the means or time to print and supply the text books required under [ACT] scheme it entered into an agreement with the petitioner to fulfill the obligation for implementation of the scheme of universalisation of elementary education.\"",
"14. At para-49 the Writ Court further observed that there was no dispute on the question that there was a lawful agreement/ contract and that the conditions of the contract were complied by the petitioner and there were no allegation of violation of any provision or terms of the contract.",
"The outstanding dues were neither disputed nor questionable though admittedly not paid to the petitioner. The Writ Court observed that if the officers had not followed the procedure in issuance of the tender, the petitioner cannot be faulted and penalized for the wrongful acts of the officers. The plea of maintainability of the writ petition for enforcement of contractual obligation and existence of an arbitration clause therein were negated after discussion of the judgments cited by the rival parties on the issue, many of which have also been placed before us also.",
"15. The tender document and extracts of the [ACT] scheme have also been brought on record before this Court. The procurement of the text books and its supply were made under the [ACT] scheme which is a centrally sponsored scheme of the Government of India in which the funding ratio is 60:40 between the Central Government and the State Government. Indeed the agreement was entered into between the [ACT] and M/s [ENTITY]s and neither the State Government nor the Central Government were parties to it. The tender document issued by the State Project Director, [ACT] containing the Special Conditions of contract have also been placed before us. [SECTION] Instruction to Bidders indicates that [ACT] was the licence holder publisher of NCERT text books from Class-II to Class- VIII in the [ENTITY]. [SECTION] of the tender document also contains the provision for settlement of disputes between the [ACT] and the Printer by arbitration on failure to resolve the difference and disputes by mutual consultation. Clause-8 under the Special Conditions provides for payment for text books at graded levels after adequate supplies being made up to the destination. Clause-11 under the Special Condition also deals with the settlement of disputes which reads as under:-",
"\"The dispute resolution mechanism to be applied pursuant to GCC Clause-24 shall be as follows:",
"(a) In case of dispute or difference arising between the [ACT] and Printer(s) relating to any matter arising out of or connected with this agreement or contract, such disputes or difference shall be sorted out at the level of State Project Director, [ACT] and printer(s). If the dispute persists to remain unsolved then it will be entertained, heard and finalized as per the provision of the [ACT]. The Arbitrator will be the Secretary, Human Resource Development Department and Government of Jharkhand, Ranchi.",
"(b) The decision of the arbitrator shall be final and binding upon both the parties.\"",
"The tender document which is Annexure-11 to the supplementary affidavit dated 11th September 2018 shows that the bids were invited under the 'Sarva Shiksha Abhiyan' and [ACT] was the implementing agency.",
"16. The bone of contention between the appellants i.e. the [ACT] and the State Government, the writ petitioner and the [ENTITY] is on the question of liability of making the payments. The Writ Court has directed the Principal Secretary, HRD cum State Project Director, [ENTITY]; The State Project Director, [ENTITY] and the Administrative Officer cum Indenting Officer, [ENTITY], respondent nos. 1 to 3 to arrange payment of the admitted outstanding dues with interest @ 6% from the date it became due. The Writ Court has proceeded on the assumption that the procurement of text books and its supplies were utilized by the respondent / State Government under the aforesaid scheme. Learned Writ Court had however accepted that [ACT] was created under the Sarva Shiksha Abhiyan ([ACT]) Scheme of Central Government and the financial funding was in the ratio of 60:40 between the Central Government and the State Government. It needs mention here that the writ petitioner has brought on record a letter of the Chief Secretary, Jharkhand to the Government of India dated 13 th August 2018 (Annexure-E to their counter affidavit). According to the writ petitioner, the Chief Secretary, Jharkhand has taken a stand that the Three Men Committee has not found any anomaly in the procurement of the text books. The MHRD, GOI has been requested to sanction the funds under [ACT] for paying the outstanding liabilities out of procurement of text books. It is considered appropriate to reproduce the text of this letter hereunder:-",
"\"Sub: Payment for printing and supply of textbooks under [ACT] for the year 2013-14.",
"Ref: MHRD Letter No.15-2/2012-EE.11 Date : 18.04.2016.",
"Apropos the above mentioned subject, I would like to draw your kind attention towards release of pending payments against printing and supply of text books under [ACT] for the academic year 2013-14. It transpires that due to one anonymous complaint, in spite of books being purchased by the Education Department and distributed in time, the GoI decided not to support the fee distribution of books for the year 2013-14 and instructed not to make payment out of the [ACT] Budget.",
"Further, taking note of the complaint, the State Government constituted a high level three member committee under the chairmanship of the Development Commissioner, Government of Jharkhand with Principal Secretary, Finance and Principal Secretary, Planning and Development as other two members.",
"This committee examined the procurement process and no anomaly was found. The rates were also compared with NCERT as well as rates in the neighbouring states. Rates in Jharkhand were found to be on lower side. Since then, the Government of Jharkhand has been repeatedly requesting for release of funds under the suitable head towards the payment of dues for printing and supply of the aforementioned text books.",
"Non-payment of admitted dues to the printers has resulted in futile litigation where-under liability is increasing day by day due to rising interest burden. It would not be out of place to mention that in a recent order passed by the Commercial Court, Ranchi in execution [CASE NUMBER] of Pioneer Printers, a sum of Rs.17 crore has been decreed against the principal amount of Rs.7 crore. Two similar cases are also under process in the same Commercial Court, Ranchi. In the matter of other three printers, orders for payment along with interest have been passed by Hon'ble High Court, Jharkhand.",
"The impugned text books, printed & distributed basically catered to the needs of poor and marginalized sections including those from Scheduled Tribe and Scheduled Caste communities. As of now, principal liabilities amount to Rs.69,19,12,955/- (Sixty nine crore nineteen lakh twelve thousand nine hundred fifty five).",
"You are, therefore, requested to kindly take immediate relook at this issue and sanction sufficient funds, under the relevant head of [ACT], keeping in view the spirit of [ACT] and the interest of school education programmes in the State.",
"Yours Sincerely Sd/ ([ENTITY]) Ms [ENTITY], IAS Secretary Department of School Education and Literacy Government of India New Delhi-110001 Memo No.837 /CS Dated 13.08.2018.\"",
"17. We have taken note earlier that the letter dated 18th October 2013 of MHRD, Department of School Education and Literacy, Government of India whereunder it had advised the Government of Jharkhand that no expenditure of such procured text books should be incurred from the funds of centrally sponsored scheme of [ACT] was not challenged by the writ petitioner though it had made a prayer in the writ petition to call for it and was also granted liberty by an interim order dated 11th February 2015 by the learned Writ Court. Thus, there was no resolution or adjudication on the legality and correctness of the direction of the MHRD as contained in the letter dated 18th October 2013 where it asked the State Government not to make any expenditure for the procured text books from the [ACT] funds for the year 2013-14 on the ground that it involved financial impropriety and mis-management. Central Government and the State Government were at loggerheads on the issue. The Project Director, [ACT] in her order dated 5th June 2014, impugned in the writ petition, had accepted that dues to the tune of Rs.11,61,70,081/- were payable to M/s [ENTITY]s after making certain deduction against printing and supplies made throughout the State. But the question remained to be answered whether respondent nos. 1, 2 and 3 who were the Principal Secretary, HRD cum State Project Director, [ACT] and the officials of [ACT] alone were liable to make the entire payments.",
"18. Before us it has been repeatedly submitted by the appellants that procurements have been made under the [ACT] scheme but payments from even the State funds under the [ACT] have been restrained by the MHRD, Government of India. On behalf of the writ petitioner it has been argued with vehemence that it is not bound to suffer on account of a dispute between the Central Government and the State Government since agreement was entered into with the [ACT] alone which does not have any dispute about the admissibility of dues. It has been submitted by the writ petitioner that it did not therefore think it proper to lay challenge to the letter dated 18th October 2013 of MHRD, Government of India by which the State Government was restrained from making payments for procurement of text books from the funds of centrally sponsored scheme of [ACT]. This was again clarified by letter dated 13th June 2016 that MHRD has not put any restriction / ban for payment of printing of text books from State's own resources (other than [ACT] Funds and from other than [ACT] Account). As such, the direction of the learned Single Judge upon respondent nos. 1, 2 and 3 to pay the admitted dues with interest was wholly proper and justified in the eyes of law and does not warrant any interference in appeal. It has also been pointed out by the writ petitioner that the entire sum has been deposited with the Registry of this Court in pursuance of the contempt proceedings pursued by the writ petitioner. Writ petitioner has been suffering recurring interest on account of non-release of its dues for no reason.",
"19. Upon careful consideration of the submissions of the parties, we cannot overlook this vital aspect of the matter that the respective liability of the Central Government or the State Government in order to make payments against the procured text books under [ACT] scheme for the year 2013-14 through the implementing agency [ACT] remained undecided and un- quantified. Whether the Government of India could also be made liable for payments towards such procurement or not? and/or whether the entire liability is to be borne by the respondents Principal Secretary, HRD cum State Project Director and officials of the [ACT] and/or State Government ? We cannot ignore the fact that this procurement was not by the State Government's School Education and Literacy Department but under a centrally sponsored scheme [ACT] which was shared in a ratio of 60:40 between the Central Government and State Government and includes various other components under it.",
"20. However, we find that the admissibility of the dues stands admitted by the [ACT]. The State Government has also not denied the admissibility of the dues except that it has requested the MHRD, GOI to lift the prohibition for payment from the [ACT] funds. The amount has been deposited as per the impugned direction in the Registry of this Court in pursuance of the contempt proceedings. The writ petitioner claims to be suffering recurring interest over the loans taken by it towards execution of the work. We therefore deem it fit and proper to direct that 40% of the admitted dues which constitutes the State Government's share as per the [ACT] Scheme, under deposit with the Registry, be released in favour of the writ petitioner. However, for payment of the remaining dues, we are of the considered opinion that the question of liability for payment between the Central Government and the State Government, needs to be adjudicated upon by the learned Writ Court. We do not agree with the submission of the writ petitioner that this issue has no connection with the payment of its entire admissible dues since it had entered into an agreement with the [ACT] alone. The fact that the procurement of text books and supplies were made under the centrally sponsored scheme by the [ACT] for the year 2013-14 cannot be brushed aside. We therefore remand the matter on this limited question of adjudging the liability of the State Government and the Central Government to the learned Writ Court. Since the letter dated 18th October 2013 is already on record and the petitioner had also made a prayer for calling it in order to lay challenge to it, we grant it liberty to specifically assail the letter dated 18th October 2013 before the Writ Court. In our view, for determination of question of liability, the legality and correctness of letter dated 18th October 2013 issued by the MHRD, GOI is necessary and moreover it formed the basis for withholding the payments of the admissible dues to the writ petitioner by the State Project Director in the order dated 5th June 2014 impugned in the writ petition.",
"21. While directing as above, we consider it proper to deal with the rival pleas urged by the parties hereunder. On behalf of the appellant-[ACT], primarily the following grounds have been urged. That the writ petitioner has assailed only the consequential order dated 5th June 2014 passed by [ACT] but not the order dated 18th October 2013 of the MHRD, GOI wherein the Central Government had restrained [ACT] from making payments from the [ACT] fund to the Printer. However, for the reasons discussed above, we have thought it proper to remand the matter to the learned Writ Court on the limited question of adjudging the liability of the State Government and the Central Government. We have granted liberty to the writ petitioner to specifically assail the letter dated 18th October 2013 before the Writ Court since the question of liability between the two Governments is not divorced from the main relief prayed for by the writ petitioner.",
"22. The order of the learned Single Judge has also been assailed on the ground that the writ petition is not maintainable in the light of an alternative remedy of arbitration available under the agreement with the [ACT] relying upon judgments rendered by the Apex Court in the cases of Joshi Technologies International Inc. (supra), Empire Jute Company Limited (supra) and a Division Bench judgment of this Court rendered in the case of Hindustan Produce Company (supra). Appellant's contention is that the cause of action lies in the private law domain.",
"In the case of Joshi Technologies International Inc. (supra), the Apex Court has in the concluding paragraph-69 summarised the principles and held that there is no absolute bar to the maintainability of the writ petition even in contractual matters or where there are disputed question of fact or even when monetary claim is raised. Discretion lies with the High Court which under certain circumstances, can refuse to exercise it. While citing the circumstances \"normally\", the court would not exercise such a discretion, the Hon'ble Supreme Court at para-70.9 has been pleased to observe as under :-",
"\"70.9. The distinction between public law and private law element in the contract with the State is getting blurred. However, it has not been totally obliterated and where the matter falls purely in private field of contract, this Court has maintained the position that writ petition is not maintainable. The dichotomy between public law and private law rights and remedies would depend on the factual matrix of each case and the distinction between the public law remedies and private law field, cannot be demarcated with precision. In fact, each case has to be examined, on its facts whether the contractual relations between the parties bear insignia of public element. Once on the facts of a particular case it is found that nature of the activity or controversy involves public law element, then the matter can be examined by the High Court in writ petitions under [SECTION] of the [ACT] to see whether action of the State and/or instrumentality or agency of the State is fair, just and equitable or that relevant factors are taken into consideration and irrelevant factors have not gone into the decision making process or that the decision is not arbitrary.\"",
"23. Viewed in that perspective, the facts and circumstances of the present case denote certain features which persuade us to observe that the claim of the writ petitioner would lie in the public law domain for the following reasons :-",
"(i) The printing and supply of text books by the writ petitioner under an agreement with [ACT] was in furtherance of the constitutional mandate under [SECTION] whereunder, it is obligatory for the State to provide free and compulsory education to all children of the age of 6 to 14 years in such manner as the State may, by law, determine. The Sarva Shiksha Abhiyan and the frame work for its implementation is based on the [ACT]. [ACT] is scheme of the Central Government, Ministry of Human Resources Development, Department of School Education and Literacy. The framework for implementation of the [ACT] encompasses sharing of the liability for execution of the scheme between the Central Government and the State Government including its funding in a prescribed ratio, which in the instant financial year 2013-14 was in the ratio of 60:40.",
"[ACT] has been constituted under this framework as a special purpose vehicle for implementation of the scheme. Printing and supply of books to the Government schools up to Class-VIII fell within the realm of State's constitutional and legal obligation. Such duty therefore lies in the public law domain.",
"(ii) The execution of the agreement between the [ACT] and the writ petitioner of printing and supply of the books has been admitted by the implementing agency [ACT]. The Agreement is not in question. [ACT] has determined that an amount of Rs.11,61,70,081/- were payable to Messrs [ENTITY]s after making certain deductions. As such, admissibility of the dues was also not a matter of dispute involving adjudication on merits on disputed question of facts.",
"(iii) The conspectus of facts reveal that payments were being withheld by [ACT] due to the ban imposed by MHRD, GOI vide its letter dated 18 th October 2013. This ban was imposed on the basis of an inquiry report of the State Government on the allegation of violation of [ACT] leading to serious financial impropriety. The stand of the State Government, as also reflected from the letter dated 13th August 2018 of the Chief Secretary, Jharkhand, is that no anomaly was found in the procurement process by the Committee. The rates were compared with NCERT as well as rates in the neighbouring states and rates in Jharkhand were found to be on lower side. The State Government has in this light repeatedly requested the MHRD for release of fund under the suitable heads towards payment of dues for printing and supply of the text books as non-payment of the admitted dues has resulted in futile litigation and increasing liability day by day due to rising interest burden.",
"(iv) The writ petitioner consciously impleaded the MHRD, Government of India as the relief prayed for apparently required adjudication on the rival stand of the MHRD, GOI and the State Government as also the [ACT]. That is why the writ petitioner had also prayed for calling of the order dated 18th October 2013 of the MHRD, GOI and for its quashing and consequential payments.",
"(v) In the scheme of [ACT], any payments for such supplies through the [ACT] were obviously dependent upon allocation of proportionate share of funds by the Central Government and the State Government though agreement was entered between [ACT] and M/s. [ENTITY], the writ petitioner only.",
"(vi) The admissibility of the claim having been admitted by the [ACT], in substance, the legal issue required for adjudication was on the liability to pay between the State Government and the Central Government. The learned Writ Court, however, left this issue unanswered. The legality and correctness of the stand of the [ENTITY] requires adjudication as it would only set at rest as to which of the Government or both of them are liable to pay the admissible dues of the writ petitioner.",
"24. For the aforesaid reasons and also on account of the fact that such an issue requiring adjudication involving the Central Government and the State Government is not covered within the arbitration clause under the agreement between [ACT] and the writ petitioner, the issue at hand could be properly adjudicated by the Writ Court. Having said so, we do not feel it necessary to answer the contentions advanced by the writ petitioner relying upon the case of Indowind Energy Ltd. (supra) that the arbitration agreement is not binding on a party which is not party to the agreement. The liability and correctness of the order dated 18.10.2013 of the MHRD, GOI remaining unanswered, plea of technicality raised by the writ petitioner based upon the ratio of Mangalore Chemicals and Fertilisers Ltd. (supra) and M/s. Hindustan Sugar Mills (supra) is also not tenable on facts of this case. The proposition laid down in the case of Rajasthan State Industrial Development & Investment Corpn. & Anr. (supra) on the construction of terms of a contract is well settled. However, under the scheme of [ACT], as discussed herein above, adjudication on the legal liability of the respective Governments to share the funding for execution of the work allotted to the writ petitioner does not amount to derogation from the express terms and conditions of the agreement entered into between [ACT] and writ petitioner. We are otherwise, in agreement with the contention of the writ petitioner that in the facts and circumstances of the case, the writ petition was maintainable though it involved enforcement of contractual obligation. The writ petitioner has also relied upon the case of Assam Small Scale Industries Development Corpn. Ltd. (supra) to further its submissions that [ACT] cannot withhold payments of the admissible dues on the ground that Central Government has restrained it from doing so from the [ACT] funds. In the case of Assam Small Scale Industries Development Corpn. Ltd. (supra), we find that the terms of the agreement entered between the Corporation and the SSI Units in pursuance of [ACT] and the Scheme framed thereunder required that while 90% of the payments were to be released by the Corporation once the supplies had been completed, only balance 10% of the payments were to be released after full and final payment by the indenting department. The Apex Court observed that if the Corporation had not taken advance in terms of the provision of the Scheme from the purchasing department, it acted on its own peril. Therefore, the Corporation was obliged to make payments of 90% of the Bills when there was no breach or irregularity in supplies.",
"Whereas, in the facts and circumstances of the present case, we find that there was an express bar imposed by the MHRD, GOI on making any payment from the [ACT] funds towards procurement of the text books by the [ACT]. [ACT], which is an implementing agency of [ACT] scheme of the MHRD, Government of India, was therefore under a legal bar in releasing the [ACT] funds for making the payments to the Printer. In our opinion, in the facts and circumstances of the present cases, this issue which goes to the root of the matter remaining unanswered, requires adjudication by the learned Writ Court to put at rest the entire controversy.",
"25. An amount of Rs.11,61,70,081/- were found payable to M/s [ENTITY]s-the writ petitioner by the [ACT] after making certain deductions. Admissibility of the dues payable to the writ petitioner not being a matter of dispute, the writ petitioner has been made to suffer due to its non-payment. The award of interest @ 6% over the outstanding amount from the date it became due, cannot be said to be unreasonable or unjust. On account of withholding of the admissible payments, the writ petitioner is losing over the value of the admitted amount which has been rightly compensated by the Writ Court by grant of interest. We do not intend to interfere in the award of interest directed by the Writ Court as no grounds are made out on the part of the appellants. As directed in the foregoing part of the judgment, let the State Government's share of the admitted dues along with interest thereupon, so deposited by the appellant in the Registry, be released by the learned Registrar General in favour of the writ petitioner without any delay.",
"26. In view of the discussions made and the reasons recorded herein above, the impugned judgment dated 19th September 2017 passed by the Writ Court is interfered in the manner and to the extent indicated herein above. We allow liberty to the parties to make a request for early hearing of the matter before the Writ Court since the issue is pending since 2015. The appeal is partly allowed.",
"([ENTITY], C.J.) ([ENTITY], J.) Jk/Shamim"
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"JUDGMENT [ENTITY], J.",
"(1) This is a husband's appeal from the order of the Additional District Judge dated January' 31, 1974, refusing him a decree of nullity.",
"(2) The appellant was married to the respondent on February 17. 1964. They lived together for a brief period of a year or so. On February 2, 1965, the wife left the husband. Thereafter she never came back to him. There is no child of the marriage.",
"(3) On July 16, 1973, the husband brought a petition. He claimed a decree of nullity on the ground of wife's impotency under [SECTION] of the [ACT] (the Act) and in the alternative a decree of judicial separation on the ground of desertion and cruelty under [SECTION] of the Act.",
"(4) In his petition the husband said that within a month of the marriage he found that the wife did not have menses at all. She had a shrivelled womb and was thus incapable of producing a child. She was impotent and sexless. These were the allegations of the husband.",
"(5) The wife did not appear to contest the case. She remained ex-parte. In ex-parte evidence the husband examined himself, his lather and mother. The judge accepted their evidence. He came to the conchrsion that the. wife was impotent at the time of marriage.",
"(6) But the judge declined to grant a decree of nullity. He. was of the view that there was unreasonable and improper delay on the part of the husband in bringing the petition after 8\" years. He held that as the husband had not explained the delay he was not entitled to a decree of nullity. He dismissed the petition solely on the ground of delay. Now the husband appeals to this court.",
"(7) The sole issue in the appeal is whether in this case there has been such delay as would disentitle the husband from getting a decree of nullity? The wife in this court as in the court below did not appear to contest the case. I, therefore, entirely accept the judge's finding on the importance of the wife. On the point of delay 1. however, differ from him.",
"(8) First the facts. The evidence shows that the wife lived with the husband up to February 1, 1965. During this period of a year or so it was discovered that the wife did not get menses. It was found that she was incapable of bearing a child. A lady doctor [ENTITY] examined her. She came to the conclusion that the wife will never be able to procreate. The members of the family of the husband suggested to the wife that she should get herself treated. The husband's mother's sister Dr. Miss [ENTITY] is a gynaecologist and obstetrician. She agreed to treat the wife free of charge. But the wife spurned the preferred aid. She left the matrimonial home in February 1965. For all purposes that was the end of married life.",
"(9) Time rolled on. The husband brought the petition in 1973, that is, after more than 8 years. There is of course delay. But is it so unreasonable and improper that the court should say to the husband: \"We will not annul your marriage even though you have proved your case because you have not been able to explain the delay ?\" [SECTION] of the Act reads : \"DECREE in proceedings-(1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that- (d) there has not been any an necessary or improper delay in instituting the proceedings, and then, and in such a case, but not otherwise, the court shall decrypt such relief accordingly.\"",
"(10) This section says that the judge has to be satisfied on a preponderance of probabilities of the matters set out in clauses (a) to (e) of that section. This is clear from the words \"and in such a case, but not otherwise, the court shall decree such relief\". The legislature has emphasised that if the court is satisfied of the grounds (a) to (e) then the relief may be granted. This applies to all cases whether defended or not. [PRECEDENT], .",
"(11) Delay, however, long in bringing a proceeding under this Act is not by itself a bar but is relevant when considering want of sincerity, that is, such conduct on the part of the petitioner as ought to estop him or her from the remedy. The statute does not merely use the term \"delay\". It also says that the delay must be 'improper' and 'unreasonable'. These are the key words. Delay itself docs not amount to approbation. But it is a significant fact. Delay, however, long, is not in itself a bar in a nullity suit; it is merely a factor in considering any insincerity. The reason for requiring delay to be explained to the satisfaction of the court is that prima fade the mere fact of delay upon a complaint of a matter so fundamental to marriage raises doubts as to the reliability of the evidence of the complainant in support of the complaint. Even though the ground of complaint may be well founded, delay indicates that sense of injury is wanting.",
"(12) The leading case in England is [PRECEDENT]. Lord [ENTITY] C. said : \"THERE may be conduct on the part of the person seeking this remedy which ought to estop that person from having it ; as, for instance, any act from which the inference ought to be drawn that during the antecedent time the party has, with a knowledge of the facts and of the law, aprobated the marriage which he or she afterwards seeks to gtrid of or has taken advantages and derived benefits from the matrimonial relation which it would be 'unfair and requitable to permit him or her, after having received then. to treat as if no such relation had ever existed.\"",
"(13) It will be obvious from this that delay in presenting a petition requires explanation, since the mere fact of delay suggests that the petitioner was willing to treat the marriage as valid; therefore, the existence of delay, and the explanation for it, are part of the circumstances to be considered as deciding whether or not there has been approbation. As examples of delay in respect of which the court accepted the petitioner's explanation and of cases where delay proved fatal' are the following representative decisions.",
"(14) In [PRECEDENT], the wife sued for divorce after 26 years of the husband's desertion. The reason for the delay was that the wife had to bring up two daughters and a son during those years. The court accepted the explanation. Delay was not held to be a bar.",
"(15) In [PRECEDENT], the wife sought for divorce eleven years after the coming into force of., the Act. It was held that there had been no unnecessary or improper :delay in the faces of the case.",
"(16) In [PRECEDENT] the husband had contracted a second marriage in 1948. The wife brought the petition for nullity in March 1960. It was held that there is no such improper delay as to operate as a bar to the wife being granted the relief of divorce.",
"(17) In [PRECEDENT] the husband first came to know that the .wife had committed adultery 4 or 5 years prior to the filing of the petition. The decree of divorce was refused on the sole ground of unnecessary and improper delay.",
"(18) In [PRECEDENT] there was a delay of 15 years after desertion in the institution of proceedings. The parties lived far away and the marriage had completely broken down. Delay was held to be no bar.",
"(19) It must be borne in mind that entirely different considerations apply with regard to unreasonable delay in cases of desertion than in cases of adultery or cruelty. Delay is less likely to be culpable in cases of desertion., (20) In [PRECEDENT] the court granted a decree notwithstanding fourteen year's delay.",
"(21) In [PRECEDENT] the husband delayed for twenty-seven years, for part of the time hoping to overcome the wife's aversion to sexual intercourse and for part of the time for financial reasons. The trial judge found that the non-consummation was due not to willful refusal by the wife but to her uncontrollable fear of childbirth which, causing a contraction of the muscles, made intercourse impossible. The judge took into account the position of the wife who had enjoyed the status of wife since 1919 and had fulfillled the duties of a wife throughout the best years of her life. He held that it would be contrary to public policy and unjust to the wife to grant a decree to the husband.",
"(22) On appeal [ENTITY] Lj pointed out that throughout this \"long period\" of 17 years the husband was again and again endeavoring to overcome the difficulty of non-consummation and he was seeking to persuade and coax his wife into having \"closer intercourse\". It was not a case in which the husband was acquiescing in his wife's disability, and \"contentedly leading a married life until some incident arose\", but was the case of a husband who throughout the 17 years of his married life shewed himself dissatisfied with the state of allairs which had existed. [ENTITY] Lj and [ENTITY] Lj agreed that there had been no insincerity. The husband's appeal was allowed.",
"(23) The facts in the instant case are very much alike. The wife lived with the husband for a year or so. Thereafter she left. The appellant has been unable to obtain the ordinary satisfaction of a husband and unable to obtain what he wanted above all things a child. It is to be put in the scales on the husband's side that he did not immediately rush to court but waited and watched. A desire for an issue or a desire to marry another are legitimate human desires. The wife had given him nothing. If the mere circumstance that there has been delay of eight years in this case is sufficient to defeat a decree on the ground of delay it seems to me that every petition based on a charge of nullity would be defeated for in our society husband and wife generally wait and take decisions of going to court when everything else has been tried and failed. It is only when the matrimonial lot becomes intolerable that a party resorts to Court unlike what obtains in the West.",
"(24) In these cases it must not be forgotten that where a home is irretrievably broken and the marriage wrecked the suffering should not further be protracted by dismissing the petition on the ground of delay which would not serve the purpose of either party and cannot in any way help the parties to set up a future home of harmony and peace which they could not find in the company of each other in the original home.",
"(25) In [PRECEDENT] [ENTITY] said: \"TO these four considerations I would add a fifth of a more general character which must indeed be regarded as of primary importance, viz., the interest of the community at large, to be judged by maintaining a true balance between respect for the binding sanctity of marriage and the social considerations which make it contrary to public policy to insist on the maintenance of a union which has utterly broken down. It is noteworthy that in recent years this last consideration has operated to induce the Court to exercise a favorable discretion in many instances where in an earlier time a decree would certainly have been refused.\"",
"(26) These observations were relied upon by [ENTITY] J. in [PRECEDENT], and in the division bench ruling by [ENTITY] J. in [PRECEDENT], .",
"(27) The test, therefore, is whether the delay is culpable or to put it strongly whether it is in the nature of a wrong. This is why the modem trend is to exercise a liberal discretion in cases where formerly a decree would have been refused on the ground of unnecessary delay and this change can be explained on account of the changing patterns of social behavior. [PRECEDENT] (supra) is an example in England. In [PRECEDENT] (supra) takes every much the same view. [ENTITY] ruling was followed by [ENTITY] J. in [PRECEDENT], (supra). His decision was affirmed on appeal by a division bench of this court in [PRECEDENT], . In that case also there was a delay of six years. These also impotence of the husband was the ground. The wife was granted a decree of nullity. The judges said: \"IN considering whether there was unnecessary or unreasonable delay in seeking the relief, we cannot ignore the conditions of the society in which the parties lived and traditions of the family to which they belong. The Hindu society looked with disfavor dissolution of marriages. It was considered as something sinful. It requires courage to face the public odium. We can take judicial notice of the fact that even today considerable sections of the Hindu Society look with disfavor the idea of dissolving a marriage.\"",
"(28) The division bench relied on [PRECEDENT] (supra).",
"(29) The courts have refused relief to a party where his conduct shows that he has approbated the marriage or has elected to be bound by the marriage. The usual terminology for this bar is 'insincerity' although it is a much criticised word in its context. \"Estoppel\" is also used, as are the words \"unfair\" in reference to the parties, \"unjustly\" and \"unseemly\" from a public point of view. Sometimes it is said that it is \"inequitable\" to grant relief, in the sense that it is unjust as between the two parties to the suit\". \"Acquiescence\" in the marriage is another phrase employed.",
"(30) But where the main objection of the husband as in this case is to have a child it cannot be said that it is an ulterior motive for getting the marriage annulled. A desire to escape from an intolerable state of things is not an ulterior motive. There is nothing reprehensible in the human desire to have a child so that the line is not extinct.",
"(31) It is true that delay had to be explained by the petitioner before he could be granted relief. The onus of proving that delay is inexcusable is on the respondent to the petition who seeks to get it dismissed. In cases where the respondent is ex parte the court may itself take the objection in obvious cases. But what seems to have happened in this case is that question of delay attracted the attention of the learned judge when he was preparing the judgment and not earlier. He, therefore, dismissed the petition.",
"(32) Ordinarily I would have remanded the case in the ends of justice. But the facts of the case are such that a further delay will inflict more suffering on the husband who is already a man of 46 years of age. He has filed an affidavit in this court saying that he belongs to a conservative Hindu family and his parents did not favor the idea of going to court.",
"(33) Has the husband disentitled himself by his conduct ? That there was passivity on his part it is true. He wavered as to the action he would take to assert his rights after he came to know the wife had a withered womb. But he is not guilty of any conduct on his part which can be described by any adjectives such as have been used in English cases-\"unjust\" or \"inequitable\". All that can be said is that he was not prompt, that he was indolent and inert. But it cannot be said that he is disentitled from obtaining relief from the courts.",
"(34) Take the case of the wife. She left the husband in 1965. Thereafter she never came back. She refused to be medically treated issue of the husband's efforts. He did everything to build a happy home. Must he now be condemned to live a life of celibacy for ever ? The wife suffers from a disability and deformity. The husband never knew about it before marriage. After marriage he has done-nothing to disentitle himself from getting relief. He made no promise with the wife that he always live with her even if she has a shrivelled womb. He did not raise any hopes in her for which he can properly be blamed. There is nothing to show that the husband had accepted his lot and had decided not to make efforts to change it for the better. If he waited for some years he did no wrong to the wife of which she can justly complain to the court. This seems to me a case where throughout his married life the husband was complaining and showing himself dissatisfied with the state of affairs which existed. In his affidavit the husband has said that he did not go to court earlier than 1973 as nullity proceedings did not appeal to him and his parents. But from his conduct it cannot be said that he had approbated the marriage.",
"(35) Suppose the wife were to be present in court. Could she say to the court with any show of reason: \"Pray do not grant relief to this man as that will unjust to me\" ?",
"(36) In 1973 the husband went to Court. He decided to sue for annulment. He was met with the defense of delay. It was an undefended case. The judge himself raised the point. That he was entitled to do so is not in doubt. But he gave the husband no opportunity to explain.",
"(37) The husband explanation is that he did not approbate the marriage. There is nothing on the record to show that he recognised the existence and validity of the marriage as to render it most inequitable and contrary to public policy to make a decree of nullity [See G v. M (supra) per Lord [ENTITY]]. The husband made no surrenders, his life, if anything, was a test of endurance. When it looked as though their lives would continue for ever in this manner the husband decided to take recourse to law. Till then he remained inactive. But there was no acquiscence. There was struggle within him. He was in the quagmire of indecision. His problem was the eternal human problem. \"TO be, or not to be-that is the question ; Whether 'tis nobler in the mind to suffer The slings and arrows of outrageous fortune, Or to take arms against a sea of troubles, And by opposing end them ?\"",
"Shakespeare Hamlet Act Iii Scene I (38) Tradition of the family and custom of the country stood in his way. Many people in our country are afread to go to law. They think that a law suit would create a local scandle. They suffer in silence. One knows in a great many cases spouses endure with patient hope for many years before taking advantage of the right which is now avail- able to them. [[PRECEDENT] per [ENTITY] L.J.].",
"(39) It cannot be said that the husband has not come to court with clean hands. A doctrine of unreasonable delay means that a man must come into court with clean hands, that he cannot take advantage of his own wrong, that he cannot rely upon that as a grievance which he has voluntarily accepted with his eyes open. Put briefly a .party is not entitled to say to the court: \"give me a remedy for the grievance I have not felt\". [B v. B (1854) 23 L.T. (OS) 99] (15).",
"(40) As was observed by [ENTITY] L.J. in [PRECEDENT] \"THE Court is not to be used as a place to which people can come for redress just when it suits them.\"",
"(41) In the same case [ENTITY] L.J. after observing that the petitioner 'cannot play fast and lose with marriage in that way' extracted the following passage from [PRECEDENT] : \"THE petitioner must feel and suffer under the wrong of which complaint is made, and the Court must be satisfied that the remedy is sought as a genuine relief from the pressure of that grievance. Such is the beaten track of the decisions. It is impossible to tread too faithfully in footsteps so wisely placed.\"",
"[ENTITY] has summed up the law in these words : \"THE mere fact that a long time has elapsed between the date of the marriage and the date proceedings were commenced is significant but does not of itself constitute a bar. Delay may, however, make it difficult to prove that the non-consummation is due to the physical defect or otherwise of the other spouse, the longer a petitioner puts off the bringing of the proceedings, the more inquisitive the Court will be, and the more the Court will require to be satisfied that he is presenting a true case; but, subject to this consideration, it is not so much the time factor between marriage and proceedings that matters as the conduct of the parties during that period and the explanations for that conduct. The petitioner must, it is said, evince impatience under a sense of wrong and a reasonable activity in complaint and redress.\"",
"[The Formation and Annulment of Marriage (Second edition) page 343].",
"(42) [SECTION] of the Act is based on [SECTION] of the [ACT]. But the law in England has not stood still. It has marched with the times. [SECTION] of the [ACT] the law has now been enacted as follows : \"13.(1) The Court shall not, in proceedings instituted after 31st July 1971, grant a decree of nullity on the ground that a marriage is voidable if the respondent satisfies the Court- (a) that the petitioner, with knowledge that it was open to him to have the marriage avoided, so conducted himself in relation to the respondent as to lead the respondent reasonably to believe that he would not seek to do so; and (b) that it would be unjust to the respondent to grant the decree.\"",
"(43) The above provision clearly brings out the reason of the rule. Though our Act is differently worded the rationale of the doctrine remains the same.",
"(44) The question whether in a given case, there had been unnecessary or improper delay in instituting the proceeding has to be decided on its own facts. No hard and fast role can be laid down. But it is well to remember the one single principle that \"IT s not so much the time factor between marriage and proceedings that matters as the conduct of the parties during that period and the explanation for that conduct.\"",
"(45) In the circumstances of the case I would hold that there has been no unnecessary and improper delay. I would, therefore, allow the appeal and grant a decree of nullity to the husband. As the wife has not appeared there will be no order as to costs."
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30576641
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"[CASE NUMBER] -1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. [CASE NUMBER] Date of Decision: 06.10.2012. [ENTITY] and others Petitioners Vs. [ENTITY] and another Respondents CORAM: HON'BLE MRS. JUSTICE [ENTITY] Present: Mr. [ENTITY], Advocate for the petitioners. Mr. [ENTITY], DAG, Punjab. Respondent No.2 in person with Ms. [ENTITY], Advocate. [ENTITY], J.",
"Petitioners have filed this petition under [SECTION] of the [ACT] for quashing of the FIR No. 16 dated 6.3.2010, under [SECTION], [SECTION] of the [ACT] ('[ACT]' for short) registered at Police Station Joga, District Mansa (Annexure P-1) and all the subsequent proceedings arising therefrom in view of compromise arrived at between the parties.",
"Learned counsel for the petitioners has submitted that now with the intervention of relatives and friends parties have settled their dispute. Respondent No.2 has returned back to her matrimonial home. Petitioner No.3 has executed a sale deed in favour of respondent No.2 with regard to 4 kanals of land.",
"Respondent No.2 is present in person along with her counsel and has admitted the factum of compromise between the parties and the contents of her affidavit (Annexure P-2). She has further stated that now she is residing in her matrimonial home with her husband and has no objection if the FIR in question is ordered to be quashed. She has also admitted the factum of execution of the sale deed of 4 kanals of land by petitioner No.3 in her favour.",
"As per the Full Bench judgment of this Court in Kulwinder Singh and others vs. [ENTITY], 2007 (3) RCR (Criminal) 1052, High Court has power under [SECTION] [ACT] to allow the compounding of non-compoundable offence and quash the prosecution where the High Court felt that the same was required to prevent the abuse of the process of any Court or to otherwise secure the ends of justice. This power of quashing is not confined to matrimonial disputes alone.",
"Hon'ble the Apex Court in the case of [PRECEDENT] in para Nos. 23 and 24 has held as under:-",
"\"23. In the instant case, the disputes between the Company and the Bank have been set at rest on the basis of the compromise arrived at by them whereunder the dues of the Bank have been cleared and the Bank does not appear to have any further claim against the Company. What, however, remains is the fact that certain documents were alleged to have been created by the appellant herein in order to avail of credit facilities beyond the limit to which the Company was entitled. The dispute involved herein has overtones of a civil dispute with certain criminal facets. The question which is required to be answered in this case is whether the power which independently lies with this court to quash the criminal proceedings pursuant to the compromise arrived at, should at all be exercised?",
"24.On an overall view of the facts as indicated hereinabove and keeping in mind the decision of this Court in [PRECEDENT]'s case (supra) and the compromise arrived at between the Company and the Bank as also clause 11 of the consent terms filed in the suit filled by the Bank, we are satisfied that this is a fit case where technicality should not be allowed to stand in the way in the quashing of the criminal proceedings, since, in our view, the continuance of the same after the compromise arrived at between the parties would be a futile exercise.\"",
"In case of [PRECEDENT], the Hon'ble Apex Court in para No.13 has held as under:-",
"13. It is manifest that simply because an offence is not compoundable under [SECTION] [ACT] is by itself no reason for the High Court to refuse exercise of its power under [SECTION] [ACT] That power can in our opinion be exercised in cases where there is no chance of recording a conviction against the accused and the entire exercise of a trial is destined to be an exercise in futility. There is a subtle distinction between compounding of offences by the parties before the trial Court or in appeal on one hand and the exercise of power by the High Court to quash the prosecution under [SECTION] [ACT] On the other.",
"While a Court trying an accused or hearing an appeal against conviction, may not be competent to permit compounding of an offence based on a settlement arrived at between the parties in cases where the offences are not compoundable under [SECTION], the High Court may quash the prosecution even in cases where the offences with which the accused stand charged are non-compoundable. The inherent powers of the High Court under [SECTION] [ACT] are not for that purpose controlled by [SECTION] [ACT] Having said so, we must hasten to add that the plenitude of the power under [SECTION] [ACT] by itself, makes it obligatory for the High Court to exercise the same with utmost care and caution. The width and the nature of the power itself demands that its exercise is sparing and only in cases where the High Court is, for reasons to be recorded, of the clear view that continuance of the prosecution would be nothing but an abuse of the process of law. It is neither necessary nor proper for us to enumerate the situations in which the exercise of power under [SECTION] may be justified. All that we need to say is that the exercise of power must be for securing the ends of justice and only in cases where refusal to exercise that power may result in the abuse of the process of law. The High court may be justified in declining interference if it is called upon to appreciate evidence for it cannot assume the role of an appellate court while dealing with a petition under [SECTION] of the [ACT]. Subject to the above, the High Court will have to consider the facts and circumstances of each case to determine whether it is a fit case in which the inherent powers may be invoked.\"",
"Since the parties have arrived at a compromise and have decided to live in peace, no useful purpose would be served in allowing the criminal proceedings to continue.",
"Accordingly, this petition is allowed. FIR No. 16 dated 6.3.2010, under [SECTION], [SECTION] [ACT] registered at Police Station Joga, District Mansa (Annexure P-1) and all the consequential proceedings, arising therefrom, are quashed.",
"([ENTITY]) JUDGE October 06, 2012 [ENTITY]"
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113443868
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22963847
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