24
Mar

CELINE Vs. MARY MATHA EDUCATION SOCIETY

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 5290 of 2009(O)

1. CELINE, W/O.SRI.WILSON LASER, RESIDING

… Petitioner

Vs

1. MARY MATHA EDUCATION SOCIETY, PALIYODE,

2. R.MURUGAN, CHAIRMAN, MARY MATHA

… Respondent

For Petitioner :SRI.K.MUHAMMED SALAHUDHEEN

For Respondent :SRI.O.RAMACHANDRAN NAMBIAR

The Hon’ble MR. Justice K.T.SANKARAN

Dated :24/03/2011

O R D E R

K.T.SANKARAN, J.

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W.P.(C) NO. 5290 OF 2009 O

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Dated this the 24th day of March, 2011

JUDGMENT

The Writ Petition is filed by the fourth defendant in O.S.No.801 of 2008, on the file of the II Additional Munsiff’s Court, Neyyattinkara. The trial court dismissed the application for temporary injunction filed by the plaintiffs. On appeal by the plaintiffs as C.M.A.No.37 of 2008, the lower appellate court set aside the order of the trial court and granted temporary injunction. The petitioner is aggrieved by the judgment in C.M.A.No.37 of 2008. Her grievance is that though she applied for certified copy of the judgment, copy was not issued to her. On verification by the Registry, the Sub Court, Neyyattinkara informed that the petitioner had filed an application for copy of the judgment on 31.1.2009. Stamps were called for on 17.2.2009 and they were supplied on 18.2.2009. It was also informed that the other defendants have also filed copy applications and that all the applications will be complied with jointly on production of stamps in all the connected applications. It is stated that that is the practice that is being followed in complying with the copy applications.

2. It was thought that the practice followed in the Subordinate Courts in not issuing certified copy to an applicant unless and until stamp papers are produced in all the copy applications in the case is not a sound practice. Therefore, even though the relief prayed for in the Writ Petition has become infructuous, counsel were invited to address their arguments on that question. On a request made to the Bar to address the Court on the question, Sri.O.Ramachandran Nambiar, a senior member of the Bar, came forward and assisted the court in disposing of the matter.

3. Rule 246 of the Civil Rules of Practice, Kerala reads as follows:

246. Order in which application to be complied with:- The preparation of all copies of documents applied for or such of them as admit of being copies in full on the stamp papers deposited shall, as far as possible, be undertaken in accordance with the serial order of the application except when the Judge makes an order for precedence as regards any particular application. Such order for precedence shall be made only on a separate application filed for that purpose.”

4. There is no other provision which is relevant in this context. Rule 246 provides for priority in dealing with copy applications. The applications for copies shall be dealt with in accordance with the serial order of the applications. In a given case, several parties may make separate applications for copies. When a copy application is filed, a number will be assigned to that application. There is no provision enabling making any priority among the copy applications submitted in a particular case except in the manner provided in Rule 246. There is no statutory support for the practice that is being followed in subordinate courts whereby all the copy applications in a particular case would only be complied with simultaneously. If such a practice is followed, an unscrupulous litigant can defeat the interests of his opponent and prevent him from approaching a higher forum at least for quite some time. For example, an order is passed in a case, which is against the contention of one of the parties. He applies for an emergent copy of the order. The opposite party or opposite parties can prevent that copy application being complied with urgently, by filing copy applications and by not supplying the requisite stamps in their copy applications. By adopting such a method, one party can delay the issue of a copy to the other party, thereby causing delay in approaching the appropriate higher forum in appeal or revision or writ petition. On the other hand, if the copy applications in a particular case are complied with in accordance with the priority and also in accordance with the priority in complying with the requisite requirements by the parties, there would be no difficulty. Even if one of the parties does not supply the requisite stamps, the other party who has supplied the stamps earlier can be given the urgent copy, though his copy application was filed subsequent to the copy application filed by the defaulting party. On such occasions, I am of the view that it is not the priority in making the copy application in a particular case as among the parties to that case that is relevant, but the urgency of the situation and the promptitude with which one of the parties complies with the mandatory requirement of supplying stamps. If such a practice is adopted, nobody would have any complaint that his copy application was not complied with because of the lapse on the part of his opposite party to supply the requisite stamps for complying with his copy application. Reasonableness and fairness demands that a person who requires an emergent copy should get it emergently, without his rights being defeated at the instance of his opposite party by adopting some undesirable tactics.

5. The aforesaid practice that is being followed in Subordinate Courts is not supported by any law. Rule 246 of the Civil Rules of Practice does not enable such a practice being followed. On the other hand, I am of the view that Rule 246 is aimed at issuing copies in accordance with priority. Rule 246 does not enable a party who has applied for copy earlier in point of time but at the same time has not complied with the requirement of supplying the stamps, to continue to keep his priority over a person who has supplied the requisite stamps well in advance than the former. The priority in making the application should not result in defeating the right of the person who has complied with the requirement of supplying necessary stamps. In other words, a person who has complied with all the legal requirements should not be denied delivery of the certified copy only because the copy application filed anterior in point of time by another party is pending because of his non-compliance of the legal requirements. The Office of the Court would certainly be entitled to issue certified copy to a person who has complied with the requirements anterior in point of time, in preference to the person who applied for copy prior in point of time, but who failed to comply with the requirements within time. Rule 242 of the Civil Rules of Practice provides for calling for stamp papers. The rule reads as follows:

242. Calling for Stamp Papers:- Every day between the hours of 3 and 5 P.M. a list showing the applications in which records have been received and the number of stamp papers required shall be affixed to the notice board of the copying section. Such list shall remain suspended for Three clear working days in accordance with Rule 6, but, if the last day should fall during a vacation the list shall remain till the day after the re-opening day. Within that time, the applicant shall supply the stamp papers called for, failing which the application shall be struck off.”

This Rule is intended to enable the parties to supply the requisite stamp papers within a reasonable time, without their application for copy being struck off. At the same time, this rule could be misused by unscrupulous litigants, if the practice that is being followed as mentioned earlier is to be approved. Rule 242 may be projected as a reason for not complying with the copy applications of the parties who had supplied stamps earlier in point of time. That is, where several parties applied for copies, some of them may produce the stamps immediately when it is called for, but others may wait till the expiry of three days and withhold supplying stamps till the period mentioned in Rule 242 is over. Thus they can prevent copies being issued to the opposite party though he has supplied the stamps earlier in point of time. I am of the view that Rule 242 cannot be extended in the matter of deciding the priority in complying with the copy applications. Rule 242 and Rule 246 operate in different fields. Rule 242 cannot govern the priority under Rule 246.

6. The expression “as far as possible” occurring in Rule 246 is also relevant. Priority as mentioned in Rule 246 is not an absolute rule. The priority, according to the serial order of the application need not be adhered to if one party who has applied for copy in a particular case anterior in point of time than the others, but has not supplied stamps earlier than the other parties. I am of the view that whoever first complies with all the requirements for supply of copy should be given preference in the matter of complying with copy applications.

The Writ Petition is disposed of as above. No further directions are necessary in favour of the petitioner.

(K.T.SANKARAN)

Judge ahz/

15
Mar

VIJAYAMOHANAN Vs SOMASEKHARAN

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 3681 of 2010()

1. VIJAYAMOHANAN,

… Petitioner

Vs 1. SOMASEKHARAN

2. STATE OF KERALA, REPRESENTED BY

… Respondent

For Petitioner :SMT.S.L.SYLAJA

For Respondent :SRI.ROY CHACKO

The Hon’ble MR. Justice V.K.MOHANAN

Dated :15/03/2011

O R D E R

V.K.MOHANAN,J.

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Crl.R.P.No.3681 of 2010

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Dated this the 15th day of March,2011

O R D E R

Challenging the acquittal under Section 248(1) of Cr.P.C. recorded by the Judicial First Class Magistrate Court-II, Haripad in C.C.No.37 of 2006, which is a case instituted upon the report in Crime No.761 of 2003 of the Kayamkulam Police Station, the de facto complainant therein preferred this Criminal Revision Petition.

2. The prosecution case is that the de facto complainant is one of the legal heirs of late one Mohan Kumar, Principal, Mohan’s Technical Institute, Kayamkulam and the said institution is functioning in 27 cents of land comprised in Sy.No.423/1 of Kayamkulam Village. According to the de facto complainant, the late father of the complainant Sri.Mohan Kumar was the lessee in the possession of above 27 cents and he had constructed a building in the said property and was conducting the above institution. According to the complainant, the father died on 29.2.2000 and thereafter, he is conducting the institution. It is the further case of the complainant that the accused obtained 12 cents of land in Sy.No.423/1 of Kayamkulam Village by virtue of Partition Deed No.2138/1972 dated 9.6.1972 of S.R.O., Kayamkulam and the accused gifted the above 12 cents to his brother Vijaya Kumar, by creating a gift deed No.3039/1972 dated 26.8.1972. According to the de facto complainant, while the above gift deed was in force, without disclosing the same, the accused fraudulently and dishonestly represented the father of the complainant that the accused is the absolute owner of the above 12 cents of land and thus, dishonestly induced the father of the complainant to purchase the above 12 cents of land for a sum of Rs.8,000/-. Thus, sale deed No.3527/1981 was executed on 5.10.1981 in favour of the complainant’s father after receiving Rs.8000/- as consideration. According to the complainant, in the above sale deed itself, it was specifically stated that the property is not subjected to any encumbrance. Thus, according to the complainant, at the time of executing the sale deed in favour of the father of the de facto complainant, the accused has no ownership or right over the property. But, suppressing those facts, he made mis-representation before the father of the complainant and thereby, playing fraud on the father of the de facto complainant, the accused got unlawful enrichment and cheated the father of the complainant. After registration of Crime No.761 of 2003 of Kayamkulam Police Station, investigation was undertaken by the said Police and on completing the investigation, report was filed based upon which cognizance was taken by the Judicial First Class Magistrate, Kayamkulam and subsequently, the case was transferred to the court of the Judicial First Class Magistrate-II, Haripad wherein the case is renumbered as C.C.No.37 of 2006.

3. During the trial of the case, Pws.1 to 8 were examined and Exts.P1 to P10 were marked from the side of the prosecution. Though no witness was examined from the side of the defence, Ext.D1 portion of 161 statement of de facto complainant/PW4 was marked as defence exhibit. Ext.X1 was marked as court exhibit. The trial court, after elaborate consideration of the evidence and materials on record, came to a conclusion that the prosecution has miserably failed to prove the guilt of the accused beyond shadow of doubt and accordingly, acquitted the accused under Section 248 of Cr.P.C. It is the above acquittal challenged in this Crl.R.P.

4. I have heard Smt.S.L.Sylaja, learned counsel appearing for the revision petitioner and Sri.Roy Chacko, learned counsel appearing for the first respondent.

5. As there was delay in preferring the above Crl.R.P., the petitioner preferred a petition to condone the delay and when notice was ordered in that petition, the first respondent/accused appeared through Advocate Sri.Roy Chacko and thus, after hearing the petition for condonation of delay, the revision petition was numbered and thus, the Crl.R.P. came up for consideration in the presence of the above Advocates.

6. Learned counsel for the revision petitioner vehemently submitted that the learned Magistrate miserably failed in his conclusion that the prosecution has not established the case beyond shadow of reasonable doubt. The learned counsel pointed out that the father of the de facto complainant and the accused were close friends and based on the partition deed of the year 1972, the first respondent, who is the accused, got 12 cents of property, which he had gifted to his brother by a gift deed created in the year 1972, but without disclosing the said gift deed, the accused sold the property to the father of the de facto complainant during the year 1981 after making a false representation made before the father of the de facto complainant. Thus, according to the learned counsel, Section 420 of I.P.C. is attracted in this case. But, the learned Magistrate, without considering the above crucial and legal aspect and on wrong appreciation of evidence on record, came to a conclusion that the prosecution has not established the case. Therefore, according to the learned counsel, the order of the trial court is liable to be set aside and the first respondent/accused is liable to be convicted for the charges framed against him.

7. On the other hand, Mr.Roy Chacko, learned counsel appearing for the first respondent, after taking me through the relevant paragraphs of the impugned judgment, submitted that as rightly observed by the learned Magistrate, there are 20 years of delay in launching the complaint and in view of Ext.P9 judgment of the civil court, the learned Magistrate is fully justified in his finding that the prosecution has not established the case beyond reasonable doubt. In support of the above contention, learned counsel placed reliance upon the decisions reported in Thankappan Nadar & Others v. Gopalakrishnan and another [(2002)9 SCC 393]and B.Suresh Yadav v. Sharifa Bee (2008 Crl.L.J.431).

8. I have carefully considered the arguments advanced by the learned counsel for the petitioner as well as the first respondent and I have carefully perused the judgment impugned in this Crl.R.P.

9. At the outset it is to be noted that thought the prosecution was conducted by the Police, such prosecution agency has not chosen to prefer any appeal or revision against the acquittal of the accused in the present case and now the challenge against the acquittal is only at the instance of the de facto complainant/a private party.

10. Going by the judgments and arguments of the learned counsels, it is beyond dispute that the father of the de facto complainant/the purchaser and the accused are friends and the entire transaction was between the father of the de facto complainant and the accused. It is borne out from records that there was a civil suit preferred by the brother of the accused against himself and against the father of the de facto complainant with respect to the same property and the said suit was defended, though by preferring separate written statements, by engaging a common lawyer for the father of the de facto complainant as well as the accused. It is discernible from the judgment of the learned Magistrate that the father of revision petitioner/de facto complainant did not file any appeal against the judgment of the suit and no complaint was preferred against the accused during his life time. It goes without saying that the best person to say about the fraud, if any, played by the accused against the father of the de facto complainant is the father of the de facto complainant himself. It is also relevant to note that the revision petitioner has no direct knowledge regarding the transaction and he is having only hearsay knowledge about the entire transaction. As rightly pointed out by the learned Magistrate, in order to attract Section 420 of I.P.C., the prosecution has to prove with sufficient evidence that the accused had fraudulent and dishonest intention at the time of making the representation and creating sale deed. According to me, as rightly found by the trial court, the evidence and materials available on record are not sufficient to draw any such fraudulent intention from the part of the accused while executing the sale deed. So, the essential ingredients of Section 420 I.P.C. have not been established by the prosecution beyond reasonable doubt.

11. It is also relevant to note that the learned Magistrate has specifically observed that the F.I.statement was lodged after 20 years from the date of the alleged offence. There is no convincing explanation as to why this much time was taken to lodge the complaint if the allegations are true. After quoting the relevant portion of the deposition of PW4, that contained in paragraphs 15 and 16 of the trial court judgment, the learned Magistrate has categorically found that ‘non-explanation of more than 20 years of delay in launching a criminal prosecution against the accused is fatal to the prosecution case’ and in the light of the above facts and circumstances involved in the case, I am of the view that the revision petitioner has miserably failed to make out a case calling upon interference of this Court with the order of acquittal recorded by the trial court. As pointed out by the learned counsel for the respondents, particularly in view of the decision of the Apex Court reported in Thankappan Nadar’s case (cited supra), the jurisdiction of the High court, while exercising the revisional jurisdiction at the  instance of the private party against the order of acquittal, is very limited. It is also relevant to note that the Apex Court has held time and again that unless there are sufficient reasons and substantial grounds to interfere with the order of acquittal, the superior courts should not interfere with such acquittal and disturb the double presumption which is available in favour of the accused, who got acquittal.

In the light of the above decisions and in view of the facts and discussions, I am of the view that there is no merit in the Crl.R.P. and accordingly, the same is dismissed.

V.K.MOHANAN,

Judge. MBS/

7
Mar

GOPINATHAN Vs. K.N. RAVICHANDRAN

IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP(C).No. 888 of 2011(O)

1. GOPINATHAN,

… Petitioner

Vs

1. K.N.RAVICHANDRAN,

2. CHANDRAMOHAN,

3. MALATHI BALAKRISHNAN,

4. LEELA SUBRAMANIAN,

5. KADAMBAZHIPPURAM SERVICE CO-OP.BANK LTD

6. PALAKKAD DISTRICT CO-OPERATIVE BANK,

7. S.B.T., PERINGODE BRANCH, PARASSERY P.O

… Respondent 

For Petitioner :SRI.V.CHITAMBARESH (SR.)

For Respondent :SRI.T.SETHUMADHAVAN

The Hon’ble MR. Justice K.T.SANKARAN

Dated :07/03/2011

O R D E R

K.T.SANKARAN, J.

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O.P.(C).No.888 of 2011

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Dated this the 7th day of March, 2011

JUDGMENT

The question involved in this Original Petition is whether a defendant could be allowed to amend the name of his father in the vakalath filed on his behalf in the suit.

2. The petitioner filed O.S.No.165 of 2005 on the file of the court of the Subordinate Judge of Ottappalam. In the plaint, the first respondent herein, who is the fourth defendant in the suit was shown as K.N.Ravichandran, son of Narayana Gupthan. The fourth defendant engaged a counsel who filed vakalath in which the fourth defendant was shown as the son of Narayana Gupthan, on the basis of what was stated in the cause title in the plaint. In the written statement filed by the fourth defendant, he stated that his biological father is Narayana Gupthan, but he is the   adopted son of C.S.Gupthan. The suit is for partition of the property which belonged to C.S.Gupthan who died issuless. The fourth defendant claims to be a legatee under the Will allegedly executed by C.S.Gupthan.

3. There is no dispute for the fourth defendant that he is the son of Narayana Gupthan. His case is that he is the adopted son of C.S.Gupthan. That is a matter to be decided in the suit. However, coming to know that a mistake crept in the vakalath and other papers, the fourth defendant filed I.A.No.26 of 2011 to amend the vakalath and other papers to delete his father’s name shown as Narayana Gupthan and to substitute it as C.S.Gupthan. The application was very seriously opposed by the plaintiff. He filed a counter contending that the application is not maintainable. The plaintiff contended that C.S.Gupthan @ Sankara Gupthan never adopted the fourth defendant. He also raised a contention that the fourth defendant is the son of Narayana   Gupthan. It was pointed out by the plaintiff that the vakalath and affidavits submitted by the fourth defendant would show that he is the son of Narayana Gupthan. The change of name of the father was sought to be made only to get the property. The plaintiff contended that the fourth defendant is a teacher and therefore, it cannot be said that he was unaware of the real facts.

4. The court below allowed the application for amendment by the order impugned in this Original Petition. The court below observed in the order that there is no dispute that the fourth defendant is the son of Narayana Gupthan. The fourth defendant also does not dispute the same. The contention of the fourth defendant is that C.S.Gupthan is his adoptive father and therefore, he is entitled to inherit the assets of C.S.Gupthan. The contention put forward by the plaintiff, that an admission was sought to be taken away by the amendment sought for by the fourth defendant, was   repelled by the court below. It was also held that no prejudice would be caused to the plaintiff by allowing the amendment.

5. Sri.V.Chitambaresh, the learned senior counsel appearing for the petitioner submitted that Rule 17 of Order 6 empowers the court to amend only the pleadings. Vakalath is not a pleading and therefore, the court below was not justified in allowing the amendment.

6. In the present case, the parties have filed their pleadings. According to the plaintiff, the fourth defendant is the son of Narayana Gupthan. According to the fourth defendant, his adoptive father is C.S.Gupthan. Even if in the vakalath, affidavit or other papers it is shown by the fourth defendant that he is the son of Narayana Gupthan, that does not go against his contentions in the written statement. The fourth defendant only wanted to show in the vakalath and other papers that he is the adopted son of C.S.Guptan. In the   written statement filed by him, his specific case is that he is the adopted son of C.S.Gupthan and his biological father is Narayana Gupthan. By the amendments sought to be made, the fourth defendant has not sought to change the case put forward by him. No admission is taken away and no new case is sought to be put forward. A mistake crept in while filling up the vakalath and while showing the name of the father in the affidavit, is sought to be corrected by the fourth defendant. The court below rightly held that the correction would not take away the admission made by the fourth defendant and that no prejudice would be caused to the plaintiff.

7. Section 153 of the Code of Civil Procedure provides that the court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding. I am of the   view that the expression “proceedings” includes vakalath and affidavit filed by the parties in the suit. No litigant shall suffer due to a mistake committed either by his counsel or by the clerk while filling up the vakalath or while entering the name of the father of the deponent in the affidavit. The purpose of amendment is to avoid multiplicity of proceedings. Another object of the general power to amend under Section 153 C.P.C. is to enable the court to determine the real question or issue involved in the case. When the real dispute involved in the case is known to both parties, no prejudice would be caused to any party by allowing the prayer for correcting the mistake. It cannot be said that the court has no power to allow a party to correct a mistake in the papers submitted by him including the vakalath. It is true that the vakalath does not constitute a pleading as defined in Rule 1 of Order VI of the Code of Civil Procedure. “Pleading” shall mean plaint or written statement. I am of the view that Section 153 of the Code of Civil Procedure confers jurisdiction on the court to   allow such correction to be made. Even assuming that Section 153 does not apply, nothing prevents the court from exercising the jurisdiction under Section 151 of the Code of Civil Procedure which saves the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of process of the court. Section 152 of the Code of Civil Procedure provides that clerical or arithmetical mistakes in judgments, decrees or orders or errors arising out of accidental slip or omission may at any time be corrected by the court either by its own motion or on application of any of the parties. Going by the scheme of the Code of Civil Procedure, it can safely be held that the court does not penalise a party for an accidental slip or omission on his part or a mistake committed by him in the pleadings or in any other paper submitted before court. In Baldeo vs. Lachhmi Narain : Air 1934Allahabad 810, it was held that an omission of Vakil’s name in the vakalatnama can be supplemented invoking Section 153 of the Code of Civil Procedure. I do not   find any ground to accept the contention raised by the learned senior counsel for the petitioner.

For the aforesaid reasons, the Original Petition is dismissed. It is made clear that the plaintiff would be entitled to file such objections which are necessary to indicate his contention on the basis of the correction carried out.

K.T.SANKARAN

JUDGE csl

9
Feb

BHAVIKA MANAGALANANDAN Vs. UNION OF INDIA

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WA.No. 1234 of 2010()

1. BHAVIKA MANAGALANANDAN, “ATHIRA”,

… Petitioner

Vs

1. UNION OF INDIA, REP. BY SECRETARY

2. DIRECTOR, NATIONAL INSTITUTE OF

3. DEAN POST GRADUATE STUDIES AND RESEARCH,

4. CHAIRMAN, PG ADMISSION, NIT, CALICUT.

… Respondent

For Petitioner :SRI.C.S.RAMANATHAN

For Respondent :SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDI

The Hon’ble the Chief Justice MR.J.CHELAMESWAR

The Hon’ble MR. Justice P.R.RAMACHANDRA MENON

Dated :09/02/2011

O R D E R

J.Chelameswar, C.J. & P.R.Ramachandra Menon, J.

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W.A. No. 1234 of 2010

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Dated this the 9th day of February, 2011

JUDGMENT

J.Chelameswar, C.J.

Aggrieved by judgment dated 9th June, 2010 in W.P.(C) No.30355 of 2009 the unsuccessful petitioner therein preferred the present writ appeal.

2. The appellant completed her B.Tech. Degree in the year 2007 from the University of Kerala and appeared for the examination popularly called GATE (Graduate Aptitude Test in Engineering) in the year 2009. It is stated in the prospectus for Admission to M.Tech. and M.Sc. (Tech.) Programme that it is an examination conducted by the seven Indian Institutes of Technology and the Indian Institute of Science, Bangalore on behalf of the National Coordinating Board – GATE, Department of Education, Ministry of Human Resources Development, Government of India. The appellant secured a score of 543 in the said examination. The appellant applied for admission into various courses both in the Indian Institute of Technology and the National Institute of Technology crated under the Institutes of Technology Act, 1961 and the National Institutes of Technology Act, 2007 respectively. As per the Information Bulletin for the year 2009-10 issued by the National Institute of Technology, Calicut whose Director is shown to be the second respondent in the writ petition and the writ appeal, the eligibility for admission into the above mentioned institution is as follows:

“Candidates for admission to M.Tech. Degree Programme  shall be required to have passed the four-year regular full time  B.E./B.Tech. Degree with 60% marks (CGPA 6.5/10) in  aggregate in the qualifying examination together with a valid  GATE SCORE and for SC/ST candidates 50% marks (CGPA  5.5/10) in aggregate with valid GATE SCORE in the  Discipline/Branch given below. Candidates under lateral entry  should have passed the three year diploma in engineering with  first class and candidates belonging to SC/ST category with  second class.”

3. The appellant was admitted into the M.Tech. (Instrumentation and Control Systems) on 22.7.2009. In the meanwhile, the appellant secured admission in the Indian Institute of Technology, Delhi on 27th July, 2009. It appears on 28.7.2009 the appellant informed the authorities of the second respondent institution that she would vacate the seat allotted in her favour. Subsequently followed by a telephone message the appellant claims to have sent a Fax message to the same effect on 29.7.2009.

4. The last date for admissions into the second respondent institution iwas 30th July, 2009. On 31st July, 2009 the appellant’s mother personally went to the second respondent institution and sought return of the original certificates surrendered by the appellant at the time of admission into the M.Tech, course on 22nd July, 2009. The second respondent insisted upon the payment of the balance course fee, i.e. an amount of 52500/- in addition to what was already paid by the appellant at the time of her admission. The appellant’s mother made the payment in order to secure return of the original certificates.

5. Subsequently the appellant filed a representation seeking refund of the fees paid which was rejected by a letter marked as Ext.P9 in the writ petition. Challenging the said decision the writ petition came to be filed.

6. In the Bulletin referred to earlier at page 30 it is stated as follows:

“If a student withdraws from the programme after closure  of admission and as the vacant seat so created cannot be  filled up by another candidate from the waiting list, no  refund of fees collected from the candidate will be made.  As per the existing rules in the Institute, such candidates  will have to pay the tuition fees for the entire duration of  the course to get the original certificates back from the institute.”

7. The respondents justified their action not to refund the fee paid by the appellant under the above mentioned clause on the ground that the appellant had withdrawn from the course after the closure of the admissions to the course which is admittedly on 30th July, 2009. Though there is some dispute regarding the actual date of communication of the appellant’s withdrawal from the course, by the judgment under appeal the learned Judge of this Court concluded that the withdrawal of the appellant from the course is on 31.7.2009. We see no reason to take a different view in the said matter and we are in total agreement with the reasons recorded by the learned Judge for such a conclusion. For the said reason the learned Judge dismissed the writ petition.

8. The learned counsel for the appellant however argued that another category of students who are eligible for provisional admission into the second respondent institution are the students in the final semester of B.Tech. course with a valid GATE score subject to the condition that they provide the final mark list within three months from the date of joining. Under the Instruction at page 32 of the above mentioned Bulletin, such candidates who are provisionally admitted eventually fail to produce the mark lists indicating the successful completion of the course would only forgo the fee already paid by them. The relevant portion of the Instruction reads as follows:

“Final semester students with a valid GATE score can also  apply provided their final marks are made available within  three months from date of joining. Such candidates may  be considered for Provisional admission. However, these  candidates must have successfully passed with 60% mark  in one to six semesters of B.Tech./BE or three years of  Engineering studies on the date of application and the  application must include attested copies of the mark lists  and course completion certificate from the Head of the  Institution last attended in the prescribed format. Any    candidate admitted Provisionally, subject to his/her  producing provisional certificate and mark lists as proof of  having satisfied the eligibility criteria, shall have to  discontinue the course, if he/she does not produce the  provisional certificate and mark lists within three months  of date of joining. Such candidates will not be eligible for  any refund of fees paid by him/her. Provisional admission  is not applicable to candidates who have failed in the  qualifying examination and subsequently appeared for the  supplementary examination. Part time degree holders are also not eligible for admission.”

9. It is asserted by the learned counsel for the appellant and admitted by the respondents that in all cases of admissions where the admission is provisional or otherwise, the respondents collect only one year’s fee at the time of admission. Therefore in the case of candidates who are provisionally admitted to the above mentioned course, but eventually fail to secure the admission will have to forgo only the fee paid by them, i.e. one year’s fee, whereas in the case of candidates who secured admission and forgone the seat in view of the fact that they secured admission into another institution which not only according to the candidates but generally believed to be an institution of higher reputation, the candidates are compelled to forgo not only the fee already paid but also to pay the balance course fee. Such a classification as rightly contended by the learned counsel for the appellant, in our opinion, is an irrational classification. In either of the cases the seat availed by such candidates would have to remain unfilled for the reason that the last date for the filling up of the seats is already over.

In the circumstances, we deem it appropriate to direct the respondents to retain only the first year’s course fee of the appellant and refund the second year course fee within a period of two weeks from today.

The writ appeal is disposed of as above.

Sd/-

J.Chelameswar,

Chief Justice

Sd/-

P.R.Ramachandra Menon,

Judge vns

After the judgment was dictated in the Court on 3rd February, 2011 a mention was made by the learned counsel for the appellant that there was a factual inaccuracy in the submission made at the Bar and consequently the judgment delivered on 3.2.2011 is required to be modified reflecting the true factual position. Therefore the matter was directed to be listed again. Accordingly the matter is listed today. At paragraph 9 of the judgment we recorded as follows:

“It is asserted by the learned counsel for the appellant  and admitted by the respondents that in all cases of admissions  where the admission is provisional or otherwise, the respondents  collect only one year’s fee at the time of admission. Therefore in    the case of candidates who are provisionally admitted to the  above mentioned course, but eventually fail to secure the  admission will have to forgo only the fee paid by them, i.e. one  year’s fee, whereas in the case of candidates who secured  admission and forgone the seat in view of the fact that they  secured admission into another institution which not only  according to the candidates but generally believed to be an  institution of higher reputation, the candidates are compelled to  forgo not only the fee already paid but also to pay the balance  course fee.”

Whereas, it is demonstrated before us today that at the time of admission into the M.Tech. Degree Course only an amount of `23907/- is collected in all under various heads like Tuition fee (1st Semester), Caution Deposit, Miscellaneous Fee, etc. Therefore, we direct the respondents to retain only the above mentioned amount of `23907/- and refund the balance amount collected from the appellant within a period of three weeks from today.

Sd/-

J.Chelameswar,

Chief Justice

Sd/-

P.R.Ramachandra Menon,

Judge vns

/ true copy /

2
Feb

RUHAILA BEEVI Vs. SUVARNA SATYAN

IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP(C).No. 631 of 2010(O)

1. RUHAILA BEEVI, D/O.RUHUMA BEEVI,

2. A.SALEEM, S/O.ALIYARUKUNJU, AGED 50,

3. SABOORA BEEVI, D/O.RAHUMA BEEVI, AGED

… Petitioner 

Vs

1. SUVARNA SATYAN, D/O.KAMALAKSHY,

… Respondent

For Petitioner :SRI.R.KISHORE

For Respondent :SRI.V.V.RAJA

The Hon’ble MR. Justice K.T.SANKARAN

Dated :02/02/2011

O R D E R

K.T.SANKARAN, J.

——————————————————

O.P.(C). NO. 631 OF 2010 O

——————————————————

Dated this the 2nd day of February, 2011

JUDGMENT

The defendants in O.S.No.496 of 2005 on the file of the Additional Sub Court, Kollam, challenge the order dated 16.9.2010 in I.A.No.3329 of 2010, by which the court below dismissed the application for amendment of the written statement.

2. The suit was filed by the respondent for realisation of money on the foot of a promissory note. In the written statement filed by the defendants, the execution of the promissory note was denied. They contended that there was no money transaction between the plaintiff and the defendants at any point of time and there was no occasion for execution of any promissory note. In short, the case of the defendants in the written statement was a total denial.

3. The suit was listed for trial on 16.9.2010. That date was fixed in open court when the case was called on 15.7.2010. The proof affidavit of the plaintiff was also filed on 16.9.2010.

4. After the case was posted for trial in the special list, the defendants filed I.A.No.3329 of 2010 to amend the written statement incorporating, inter alia, the following contentions: The husband of the plaintiff is conducting a chit funds, which is an unregistered firm. The defendants had prized a chit run by that firm. A sum of Rupees Three lakhs was paid to the defendants. At that time, several blank papers were obtained by the firm. Some of the blank papers have been misused to fabricate the promissory note, on the basis of which the suit was filed.

5. The court below dismissed the application on two grounds: (1) If the amendment is allowed, it would have the effect of withdrawing an admission; and (2) The application is highly belated and it was filed on the date on which the case is posted for trial.

6. The petitioners contended that the finding of the court below that the application was filed on the date on which the case was posted for trial is not correct. The application was filed on 8.9.2010.

7. The finding of the court below that the additional written statement would take away an admission made by the defendants in the original written statement does not appear to be correct. Denial of a promissory note in the written statement cannot be treated as an admission by any sense of the term. The learned counsel for the respondent submitted that admission is defined in Section 17 of the Evidence Act and any statement which suggests any inference as to any fact in issue would amount to admission. Denial of the execution of the promissory note could not be such a statement coming within the purview of Section 17 of the Evidence Act. Therefore, the court below was not right in taking the view that by the amendment of the written statement, the admission made in the written statement was attempted to be taken away.

8. Learned counsel for the respondent pointed out that going by the proviso to Rule 17 of Order VI of the Code of Civil Procedure, the application could not be allowed. It is submitted that no special reasons have been stated by the defendants and there is no averment that in spite of due diligence they could not have raised the matter before the commencement of trial.

9. Learned counsel for the petitioners contended that several other suits were filed by the firm against the defendants and the correct facts were stated in the written statements filed in those cases. However, those contentions could not be incorporated in the written statement filed in the present case, due to wrong legal advice. It is submitted that two such suits were tried and those suits were dismissed accepting the contention put forward by the defendants. Learned counsel for the petitioners relied on the decision of the Supreme Court in Usha Balashaheb Swami and others v. Kiran Appaso Swami and others ((2007) 5 SCC 602), wherein it was held thus:

“18. It is now well settled by various decisions of this Court as well as those by the High Courts that the courts should be liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side or on the ground that the prayer for amendment was not a bona fide one. In this connection, the observation of the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung (AIR 1922 PC 249) may be taken note of. The Privy Council observed: (IA pp.216-17)

“All rules of court are nothing but provisions intended to secure the proper administration of justice, and it is therefore essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit.”

19. It is equally well-settled principle that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable.

20. Such being the settled law, we must hold that in the case of amendment of a written statement, the courts are more liberal in allowing an amendment than that of a plaint as the question of prejudice would be far less in the former than in the latter case (see B.K.Narayana Pillai v. Parameswaran Pillai ((2000) 1 SCC 712) and Baldev Singh v. Manohar Singh ((2006) 6 SCC 498)). Even the decision relied on by the plaintiff in Modi Spg. clearly recognises that inconsistent pleas can be taken in the pleadings. In this context, we may also refer to the decision of this Court in Basavan Jaggu Dhobi v. Sukhnandan Ramdas Chaudhary (1995 Supp (3) SCC 179). In that case, the defendant had initially taken up the stand that he was a joint tenant along with others. Subsequently, he submitted that he was a licensee for monetary consideration who was deemed to be a tenant as per the provisions of Section 15-A of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. This Court held that the defendant could have validly taken such an inconsistent defence. While allowing the amendment of the written statement, this Court observed in Basavan Jaggu Dhobi case as follows: (SCC p.180, para 3).

“3. As regards the first contention, we are afraid that the courts below have gone wrong in holding that it is not open to the defendant to amend his written statement under Order 6 Rule 17 CPC by taking a contrary stand than what was stated originally in the written statement. This is opposed to the settled law. It is open to a defendant to take even contrary stands or contradictory stands, thereby the cause of action is not in any manner affected. That will apply only to a case of the plaint being amended so as to introduce a new cause of action.”"

10. It is true that there was delay on the part of the defendants in the matter of filing the application for amendment of the written statement. It is also true that the contentions are, to some extent, conflicting. But, it is well settled that inconsistent pleas can be taken by the defendants. I am of the view that the delay could be compensated in terms of costs. Taking into account the relevant facts and circumstances of the case, I am of the view that it is only proper to allow the application for amendment of the written statement, since it would advance the cause of justice and it would enable the court to effectively and completely adjudicate upon the disputes involved in the case.

11. There is another angle in which the matter could be dealt with. Going by the original written statement, since there was total denial, the burden of proof was on the plaintiff to prove the signature and execution of the promissory note. Now the defendants have raised a contention that the promissory note was fabricated using the signed papers taken from them. To that extent, the plaintiff is relieved of the burden of proving the signature of the defendants in the promissory note. Therefore, in the matter of proof, the plaintiff stands to benefit, at least to some extent, if the amendment sought for is allowed. This aspect was not taken note of by the court below. As stated earlier, the delay could be compensated in terms of costs.

For the aforesaid reasons, the Original Petition is allowed. The order passed by the court below is set aside and the application for amendment of the written statement is allowed on payment of costs of Rupees Three thousand to the plaintiff.

(K.T.SANKARAN)

Judge ahz/

1
Feb

K.A. SUKUMARAN Vs. KERALA PERMANENT BENEFIT FUND LIMITED

IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP(C).No. 310 of 2011(O)

1. K.A.SUKUMARAN, AGED 33 YEARS,

… Petitioner

Vs

1. KERALA PERMANENT BENEFIT FUND LIMITED,

… Respondent

For Petitioner :SRI.R.SUDHISH

For Respondent :SRI.O.RAMACHANDRAN NAMBIAR

The Hon’ble MR. Justice K.T.SANKARAN

Dated :01/02/2011

O R D E R

K.T.SANKARAN, J.

——————————————————

O.P.(C). NO. 310 OF 2011 O

——————————————————

Dated this the 1st day of February, 2011

JUDGMENT

The third judgment debtor in O.S.No.234 of 2004, Sub Court, Palakkad, challenges the order dated 17.12.2010 passed by the executing court directing sale of an extent of 51 cents of land for realisation of a sum of Rs. 9,06,213/- claimed in the Execution Petition.

2. The respondent obtained a decree for a sum of Rs. 7,34,126/- together with interest. It is stated that the decree is a mortgage decree and that the decree itself provides for sale of only sufficient portion of the mortgaged property for realisation of the decree amount.

3. In the Execution Petition, notice was issued to the judgment debtors. The petitioner filed a counter statement dated 9.7.2009, in which, he contended that sale of two items of immovable properties is not required for realisation of the decree debt. Item 1 is having an extent of 1.82 acres. Item 2 consists of 51 cents. In the objection, it is stated that item 2 is a paramba and it would fetch a market value of Rs. 25 lakhs. It was contended that sale of a portion of item 2 would be sufficient for realisation of the decree debt.

4. On the basis of the counter statement dated 9.7.2009, the executing court excluded item 1 from the purview of sale. Item 2 was directed to be sold for realisation of the decree debt.

5. Thereafter, draft sale proclamation was produced and the case was posted for settlement of proclamation. The petitioner filed objections dated 28.10.2010 to the notice under Rule 66 of Order XXI of the Code of Civil Procedure. In the objections, he raised a contention that item 2 property which was sought to be sold would fetch a market value of Rs. 25 lakhs. It was also contended that the property is situated on the side of the panchayat road and it will fetch a value of Rupees One lakh per cent. The petitioner contended that it is not necessary to sell the whole of item 2 for realisation of the decree amount.

6. The court below passed an order dated 17.12.2010, which is under challenge in this Original Petition, rejecting the contention raised by the petitioner. The court below found that an order was passed on 18.5.2010 rejecting the contention of the petitioner that sale of a portion of item 2 would be sufficient for realisation of the decree debt. As per that order, the whole of item 2 was directed to be sold. Since the petitioner raised a contention that the estimated value of the property would be Rs. 25 lakhs, the executing court directed to incorporate in the sale proclamation the value suggested by the petitioner.

7. The learned counsel for the petitioner, Sri.R.Sudhish, submitted that the order dated 17.12.2010 is illegal and unsustainable. The counsel relied on the decisions in P.K.Kuruvilla v. Corporation Bank (2008 (1) KLT 604 = 2008 (1) KHC 258) and Chandradas K.P.v. A.Nizar and others (2009 (3) KHC 841).

8. Sri.O.Ramachandran Nambiar, the learned counsel appearing for the respondent/decree holder contended that the order dated 18.5.2010 would be a bar for considering the request made by the petitioner in the objection to the notice under Rule 66 of Order XXI of the Code of Civil Procedure. The court below rightly held that the petitioner having not challenged the order dated 18.5.2010, the present contention could not be entertained. The counsel also relied on the decision in Harishankar v. Syndicate Bank of India and others (ILR 1996 (1) Kerala 756).

9. In Ambati Narasayya v. M.Subha Rao and another (AIR 1990 SC 119), the Supreme Court held that in an execution sale, the court should ensure that only the property sufficient to satisfy the decree alone should be sold. The Supreme Court held that it is a mandate of the legislature and it is not a mere discretion of the Court. Even if the property sought to be sold is one item, the contention of the judgment debtor that a portion of the same would be sufficient to satisfy the decree should be considered. The decision of the Supreme Court in Ambati Narasayya’s case was followed in several other decisions of the Supreme Court.

10. In ILR 1996 (1) Kerala 756, a Division Bench of this Court held thus:

“11. The other decision relied on by Mr.Nambiar  in Ambati Narasayya v. M.Subba Rao is not applicable  to the facts of our case. Therein ten acres of land were  sold in auction for Rs.17,000 in execution of a decree for  Rs.2,000. In such a background the court felt that sale  of the entire property for realising such a low amount is  bad. In the present case on hand the total amount due  under the decrees is more than Rs.3,26,000. In such  circumstances, there is nothing wrong in the entire  property of 68 = cents being brought to sale in the court  auction. There are some other observations in this  judgment which are to the same effect as we have quoted earlier.”

11. The petitioner contended in the objections dated 9.7.2009 as well as in the objection dated 28.10.2010 that the property sought to be sold would fetch a price of Rs. 25 lakhs. However, in the objections dated 28.10.2010, he raised a contention that the centage value of the land would be Rupees One lakh. If so, the value of the property would be more than Rs. 50 lakhs. But the petitioner did not say that the property would fetch a value of Rs. 50 lakhs, but be reiterated the contention raised in 2009 that the market value of the property would be Rs. 25 lakhs. The court below, by way of abundant caution, directed to incorporate in the sale proclamation the value suggested by the petitioner in the objection filed in 2010. That is a sufficient safeguard to protect the interests of the petitioner.

12. As per the order dated 18.5.2010, the court below negatived the contention of the petitioner that sale of a portion of item 2 would be sufficient to satisfy the decree debt. That order was not challenged by the petitioner. Even in the present Original Petition, there is no case that the order dated 18.5.2010 was erroneous. Res judicata applies not only to suits but to execution proceedings as well. Explanation VII to Section 11 of the Code of Civil Procedure provides that the provisions of the Section shall apply to a proceeding for the execution of a decree. Therefore, a matter which was heard and finally decided in the execution proceedings would bind the parties in another Execution Petition or at a later stage of the same execution proceedings. That the principle of res judicata would apply to different stages of the same proceedings is well settled. (See Satyadhyan Ghosal and others v. Deorajin Debi and another (AIR 1960 SC 941); Prahlad Singh v. Col. Sukhdev Singh (AIR 1987 SC 1145); Jayalakshmi v. Shanmugham (1987 (2) KLT S.N.Case 67 Page 47.) It is true that a decision in the execution proceeding on the question of value of the property, as such, may not constitute res judicata at a later stage of the execution proceedings where the question arises whether the value of the property has undergone change. In Govinda Bhat v. Sham Bhat (2000 (1) KLT 278), it was held that finding in an earlier suit on the question of value of arecanut and the question that the rate prevailing in a particular area should be taken into account, would not constitute res judicata in a later suit between the same parties. It was held:

“That will not act as res judicata, because on a  later stage, because of the market fluctuations and due to  innovative technologies in the field of production, the  price may vary in either direction.”

In the present case, there is no case for the petitioner that there is change in the value of the property or that the value of the property has gone up. In the objection filed in 2009, he stated that the estimated value of the property would be Rs. 25 lakhs. In the objection filed in 2010 also he reiterated that contention. Of course, in the second objection, he contended that the centage value of the property would be Rupees One lakh. Even if the centage value of the property is higher, that need not necessarily represent the market value of a larger extent. The petitioner/judgment debtor is the owner of the property. He knew the value of the property better than the court. He stated that the estimated value of the property would be Rs. 25 lakhs. That was the price which he stated earlier also. Therefore, there was no change of circumstances warranting a change in the order passed by the court below. If so, the order dated 18.5.2010 would operate as res judicata barring the petitioner from raising the same contention which was raised by him and repelled by the executing court earlier.

Sufficient safeguards have been made by the court below for protecting the interests of the judgment debtor. The contentions put forward by the judgment debtor are bereft of bona fides. There is no ground to interfere with the order passed by the court below. Accordingly, the Original Petition is dismissed.

(K.T.SANKARAN)

Judge ahz/

31
Jan

SAHYA FINANCE & CHITS(P) LTD. Vs. M.D. SIMON

IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRP.No. 891 of 2005()

1. M/S.SAHYA FINANCE & CHITS(P) LTD.,

… Petitioner

Vs

1. M.D.SIMON, S/O.DEVASSIA KURIAN,

2. SHAJU M.SIMON, S/O.M.D.SIMON,

3. SASIKUMAR P.S., S/O.P.K.SREEDHARAN,

… Respondent 

For Petitioner :SRI.V.CHITAMBARESH

For Respondent :SRI.A.R.GANGADAS

Dated :31/01/2011

O R D E R

M.N. KRISHNAN, J.

= = = = = = = = = = = = = =

C.R.P. NO. 891 OF 2005

= = = = = = = = = = = = = = =

Dated this the 31st day of January, 2011.

O R D E R

This revision petition is preferred against the judgment and decree of the District Judge, Palakkad in A.S.161/03. The said appeal in turn was filed against the judgment and decree of the Munsiff, Palakkad in O.S.902/01. It was a suit instituted by the plaintiff for realisation of the default amount due under a kuri transaction. It is the case of the plaintiff that the defendant had subscribed to a chitty and had bid it in auction and had executed a bond undertaking to pay balance in instalments. It is the case that the amount was paid up to the 35th instalment and thereafter he had committed default and therefore the suit is filed for the realisation of the amount. The defendant on the other hand denied about the jurisdiction of the Court and also contended that the suit is barred by limitation. It is also contended that the plaintiff has not credited the amount that was paid by the defendants and therefore prayed for dismissal of the suit. In the trial court issues were raised and the suit was dismissed by the trial court mainly on the ground of limitation. In appeal the said finding was confirmed by the learned District Judge. Now the crucial question that arises for determination is regarding the limitation. Admittedly the first defendant had joined in a kuri, bid the amount in auction and had executed the bond along with defendants 2 and 3 for the security of the future instalments. According to the plaintiff upto 35th instalment the amount was paid and therefore there is default committed with respect to the 35th instalments and therefore the suit is filed for the realisation of that amount. The trial court and the appellate court held that the suit is based on the bond executed and since three years have elapsed after the date of execution of the bond the case is barred by limitation. I am afraid that it is an erroneous approach. Now the bond or the document is executed undertaking to pay the balance amount due under a kuri transaction. Really the cause of action for institution of a suit arises only when a default is committed. Here no default is committed till the payment of 35th instalment. It is only from the 36th instalment the default is made and we can say that the cause of action for the plaintiff to institute a suit has arisen when the 36th instalment was defaulted. This Court has considered this point in the two decisions referred to below. In the decision referred to in 1977 KLT 482 Kochappan v. Official Liquidator this Court held that “Provision for payment of further subscriptions in lump on default of any one instalment in a kuri bond by a prized subscriber, whether precludes the foreman from collecting defaulted instalments”. The Court held that:

“The bond, Ext. A1, only provides  that if default is made in the  payment of any one instalment, the  defendants undertake to pay the  balance in a lump. It does not  preclude the foreman from receiving  the defaulted instalments. As seen  from the averments in the plaint  the subscriber was not punctual but  the foreman was receiving the  subscriptions paid after the due  date and crediting it for the  earlier instalments without   insisting on payment in full. The  suit is filed after the natural  termination of the kuri. The  foreman did not at any time before  the termination of the kuri demand  payment of the whole. The right of  the subscribers to pay the amounts  in instalments continues until a  demand is made. The default of each  instalment creates separate cause  of action and all cause of actions  that arose within three years of  the suit are not barred by  limitation.”

In the decision reported in 1986 KLT 434 (Jess Ralph v. Modern Savings) this Court considered the question of limitation with respect to an agreement between the foreman and the subscriber. The Court held that by referring to Article 37 of the Limitation Act,

“When the default is made unless  where the payee or obligee waives   the benefit of the provision and  then when fresh default is made  in respect of which there is no such waiver.”

2. Now applying the dictum laid down in the two decisions referred to above, it has to be stated that there has been an execution of a bond undertaking to pay balance amount in 14 equal instalments. There was no default committed till the 35th instalment. The default is committed only on the 36th instalment. The bond is executed on 22.6.98. The stipulation is to pay the balance amount in 40 instalments. There was no default till the 35th instalment. That is upto to 5th month of 2001 namely May 2001. So the cause of action for realisation of the balance amount really arises only after May 2001 with respect to the balance instalments. Now all the 5 instalments which is due are claimed prior to the period of expiry of the limitation for the reason the suit is filed in the year 2001 itself. Therefore there is no bar of limitation for institution of the suit. So the finding of the trial court that the suit is barred by limitation is incorrect and therefore it is set aside.

3. Now the learned counsel for the respondent would contend before me that the Court has not considered the other contentions raised by him under the proper perspective. It is true that the pleadings is not very definite but there is a specific contention that all the paid amounts are not credited by the plaintiff. It is a matter which can be proved by producing documents. Therefore I am inclined to grant an opportunity to find out whether there is any balance amount due under the transaction. If so what is the amount. Therefore judgment and decree of both the Courts below are set aside and it is found that the suit is not barred by limitation and the case is remitted back to the trial court for consideration of the question regarding the correctness of the amount if any due from the defendants to the plaintiff and for that purpose the parties are permitted to adduce both documentary as well as oral evidence in support of their respective contentions and let the matter be disposed of in accordance with law. Parties are directed to appear before the trial court on 1.3.2011. Being a money suit of a transaction of 2001, if possible the matter be disposed of before the Court closes for summer holidays in 2011.

Sd/-

M.N. KRISHNAN, JUDGE. ul/-

[true copy]

P.A. To Judge. ul/-

20
Jan

M/S. SHREE SIDHBALI STEELS LTD. Vs. STATE OF U.P.

SUPREME COURT OF INDIA

WRIT PETITION (CIVIL) NOS.537 OF 2000

THE HONOURABLE MR. JUSTICE J.M. PANCHAL,

THE HONOURABLE DR. JUSTICE B.S. CHAUHAN

&

THE HONOURABLE MRS. JUSTICE GYAN SUDHA MISRA

M/S. SHREE SIDHBALI STEELS LTD. & OTHERS

Vs.

STATE OF U.P. & OTHERS

For the Petitioners: Shanti Bhushan, Sudhir Kumar Gupta, M.L. Lohaty, R.K. Gupta, P.K. Sharma, Ms. Gargi, Advocates.

For the Respondents: Shail Kr. Dwivedi, AAG, Pramod Swarup, Sr. Advocate, Anuvrat Sharma, Ms. Alka Sinha, Ameet Singh, R.K. Verma, A.P. Sahay, Ms. Rachana Srivastava, Pradeep Misra, Suraj Singh, Advocates.

20-01-2011

JUDGMENT

J.M. Panchal, J.

By filing this petition under Article 32 of the Constitution, the ten petitioners which are Private Limited Companies have prayed to issue a writ in the nature of mandamus or any other appropriate writ or order declaring notification No. 1208/HC/UPPCL-V-1974/1204/2000 dated 07.08.2000 issued by the UP Power Corporation Limited, which was formerly known as U.P. State Electricity Board as illegal, arbitrary and violative of Articles 14, 19(1)(g) and 21 of the Constitution in so far as it denies the petitioners, the Hill Development Rebate of 33.33% on the total amount of electricity bills issued by the respondents for the remaining unexpired period of five years from the date of commencement of supply of electricity to the industrial units of the petitioners. The petitioners have also prayed to issue an appropriate writ in the nature of mandamus or any other appropriate writ, order of direction commanding the respondents to restore/give Hill Development Rebate of 33.33% to the industrial units of the petitioners on the total amount of the electricity bills for the remaining unexpired period of five years.

2. The facts giving rise to the filing of this petition are as under:-

The petitioners are industrial units carrying on business of manufacturing iron rods, ingots, strips in furnaces/re-rolling mills in hill are known as Kotdwar, State of Uttar Pradesh, now State of Uttarakhand. The industrial units of the petitioners were connected with power loads in the year 1996-97 by U.P.StateElectricity Board which is now known as U.P. Power Corporation Limited. The claim made by the petitioners is that from the year 1986, the State Government, in order to develop hill areas and particularly Zero Industrial Zones of hill areas as well as for inducing, encouraging and alluring new entrepreneurs declared various exhaustive industrial policies with the consent of UP State Electricity Board, Sales Tax Department and Industrial Department granting various incentives including rebate of 33.33% on total amount of electricity bills to industrial units to be established in hill areas of UP. The petitioners have averred that a new industrial policy dated April 30, 1990 was declared by the State Government assuring grant of 33.33% rebate on total amount of electricity bills to new entrepreneurs for a period of five years. The case of the petitioners is that the Government of UP, pursuant to the aforesaid policy issued an order dated 16-10-1990 to UPSEB to implement all the instructions contained in the said industrial policy. The said policy, according to the petitioners was to remain in operation till March 31, 1995. The record shows that the UPSEB by Notification dated June 28, 1996 modified the earlier notifications and extended the Hill Development Rebate which was to expire on March 31, 1995 for a further period of next five years to be made available to the new industrial units which would be set up till 31-3-1997. The petitioners have claimed that the five years period for which the petitioners were entitled to the Hill Development Rebate of 33.33% on the total amount of electricity bills was to be over in the year 2001-02. What is asserted by the petitioners is that in view of the promises, assurances and guarantees given by the Government of UP through various industrial policies declared from time to time and accepted, operated as well as implemented by UPSEB through different gazette notifications, the industrial units of the petitioners were established in Kotdwar, District Pauri in the year 1996-97. According to the petitioners on January 3, 1997 the Respondent No.2 Corporation, brought out its electricity tariff to be levied on the consumers and it was inter-alia stipulated that the promises made in the industrial policy declared by the UP Government on April 30, 1990 and gazette notification dated June 28, 1996 would continue to be available to the new entrepreneurs as before. The petitioners have mentioned that 33.33% rebate promised to industrial units established in the hill areas was accordingly granted to the petitioners who had established their industrial units in the year 1996-97. Explaining as to why the respondents had promised to grant rebate of 33.33%, it is stated that, the rebate was meant to meet out extra expenditure incurred by the industrial units set up in hill areas in comparison to the industrial units set up in hill areas in comparison to the industrial units established on plain and developed areas on account of various factors such as labour charges, maintenance cost, transportation of raw material, transportation of finished goods, availability of water, establishment charges etc. The petitioners have averred that vide Notification dated 18-06-1998 & 25-01-1999, issued by the respondent Corporation, uniform tariffs were introduced, which were seemingly innocuous but in fact had reduced the rebate from 33.33% to 17% and the result was that hill area units became less competitive and unviable in comparison to the units situated in developed areas. The petitioners have mentioned that the two Notifications dated June 18, 1998/25-01-1999 levying the tariffs, were challenged by the petitioners before High Court of Allahabad by way of filing C.W.P. Nos. 15292 and 15293 of 1999. The High Court vide judgment dated 25-05-2000 had allowed the writ petitions and struck down clause 9(a) of the Notification dated 25-01-1999 and clause 8(a) of the Notification dated 18-06-1998 holding that the petitioners were entitled to get H.D.R. of 33.33% on the total bill till the period of five years from the date of commencement of supply of electricity to them was to come to an end. The record shows that the final Judgment dated 25.05.2000 rendered by the High Court of Allahabad was challenged by U.P. Power Corporation Limited before this Court by way of filing SLP No. 10665-10666 of 2000 and this Court had initially passed an Interim Order dated July 28, 2000 directing the present industrial units of the petitioners to make payments of electricity bills as per tariff notification dated 25.01.1999. The claim made by the petitioners is that after passing of the above mentioned interim order dated 28.07.2000 the respondent had issued a new tariff by notification dated 07.08.2000 and had increased exorbitantly the rate of charges and had completely withdrawn the Hill Development Rebate which was made admissible under the industrial policy declared by the then Chief Minister in the year 1996 and continuously allowed by the respondent No.2 till 18-06-98/25.01.99. It is relevant to notice that the notification granting rebate was issued under Section 49 of the Electricity Supply Act, 1948, whereas the notification dated 07.08.2000 whereby the rebate was completely withdrawn was issued under Section 24 of the Uttar Pradesh Electricity Reforms Act, 1999 which came into force with effect from 14.01.2000. The grievance made by the petitioners was that because of the interim order dated 28.07.2000 passed in S.L.P. Nos. 10665-10666 of 2000, the respondents were not entitled to issue and introduce a new tariff by a notification dated 07.08.2000 increasing the rate of charges and completely withdrawing the Hill Development Rebate but were entitled to levy tariff according to the notification dated 25.01.99. Therefore, they filed IA No. NIL of 2000 in SLP Nos. 10665-66 of 2000 seeking appropriate directions from the Court. The claim advanced by the petitioners is that the said IA was listed before the Court on 29.09.2000 and after hearing the parties, while adjourning the said IA for a period of two weeks the Bench hearing the I.A. had opined that the petitioners, if so advised, should file writ petition challenging the new tariff/revised rates of power made applicable with effect from 09.08.2000 by the notification dated 07.08.2000. The petitioners have claimed that taking hint from the opinion expressed by this Court on 29.09.2000, the instant petition was filed. The petitioners have mentioned that by new tariff notification dated 07.08.2000, the respondents have completely withdrawn the assured, promised and guaranteed Hill Development Rebate which has made it impossible for the petitioners to run their industrial units located in the hill areas and therefore the notification dated 07.08.2000 should be regarded as illegal, arbitrary, discriminatory and violative of provisions of Article 14, 19(1)(g) and 21 of the Constitution as well as contrary to the principles of promissory estoppel. The assertion made by the petitioners is that the respondents are bound to act as per their promise, solemnly made to the petitioners while inviting them to establish the industrial units in completely remote and underdeveloped areas of U.P. The petitioners have further claimed that because of the tariff introduced by notifications dated 18.06.98/25.01.99 out of 28 industrial units which were established on assurances given by the respondents, 15 industrial units were closed down and now only 13 industrial units of the petitioners are operating at present. It is mentioned that the new tariff introduced by notification dated 07.08.2000 is contrary to the suggestions/recommendations made by Uttar Pradesh Regulatory Commission established under the provisions of Electricity Regulatory Commission Act, 1998. Under the circumstances, the petitioners have filed the instant petition and claimed the reliefs to which reference is made earlier.

3. On service of notice Mr. N.N.Srivastava, Deputy General Manager (Com.), U.P. Power Corporation Limited, i.e., the respondent No.2 herein, has filed affidavit in opposition on behalf of Respondent Nos. 2 & 3 taking preliminary objections that the petition is not maintainable as no fundamental right of the petitioners, which are the companies, is violated. The respondent No.2 has stated that since tariff was framed in exercise of statutory powers by a statutory body, the petition is not maintainable against exercise of this statutory power. In the reply it is mentioned that there is a provision of filing review before the Commission in case the petitioners feel aggrieved but they are not justified in making grievance directly before this Court regarding introduction of new tariff rates and/or withdrawal of rebate by filing a writ petition under Article 32 of the Constitution. After mentioning that the agreement entered into by the petitioners with the Respondent No.2 Corporation contains a clause that the rates/tariff fixed/revised by the supplier i.e. the replying respondent, from time to time, would also be applicable to the petitioners, from time to time, would also be applicable to the petitioners, it is asserted that in view of the said clause, the petitioners are estopped from challenging the revision of the tariff made under statutory exercise of powers for greater public interest. In the reply, clause seven of the agreement has been reproduced and it is claimed that the petition which is mainly based on the principle of promissory estoppel being thoroughly misconceived, should be dismissed at once. So far as, merits of the matter is concerned, it is stated that the notification dated 07.08.2000 is neither illegal nor arbitrary nor discriminatory nor hit by the principle of promissory estoppel and the reliance placed upon the decision dated 25.05.2000 rendered by the High Court in Writ Petition No. 15292-93 of 1999 is misconceived as the same is subject matter of challenge in the pending SLP’s. According to the reply, during the pendency of SLP filed by the respondent UP Power Corporation Limited, the UP Electricity Regulatory Commission framed a new tariff in exercise of statutory powers and directed the respondents to enforce the same and therefore the respondents to enforce the same and therefore the respondents who are bound to enforce the tariff, have enforced the same vide notification dated 07.08.2000. It is claimed that tariff revision made under the statutory powers has nothing to do with the interim order dated 28.07.2000 passed by this Court in the SLPs filed by the U.P. Power Corporation Limited and the High Court is wrong in allowing the Writ Petitions and directed that 33.33% rebate should be given to the petitioners, when the entire tariff is changed and total financial burden on the petitioners is less than 5% of tariff. After asserting that the Kotdwar is practically situated in plain area and very near to to Najibabad, it is stated that the claim of high cost advanced by the petitioners is not genuine. In the reply it is emphasized that the tariff was revised to minimize the theft of electricity which was prevalent amongst large and heavy consumers like petitioners and in fact rates enforced with effect from 18.06.1998 were more favourable to the petitioners but they were not satisfied with the said tariff and therefore had filed writ petition in the High Court from which the SLP No. 10665-66 of 2000 have arisen. Another affidavit dated 26.12.2000 is also filed by Mr. N.N. Srivastava clarifying certain aspects of the matter. In the additional reply, different provisions of U.P. Electricity Regulatory Commission Act and U.P. Electricity Reforms Act, 1999 are adverted to and it is claimed that in view of Section 7(a) of the Act, the tariff as framed by the U.P. State Electricity Board is applicable to the petitioners and they having undertaken to pay the electricity charges as per the rules/tariff determined by UP State Electricity Board from time to time, the petition is not maintainable. It is also asserted in the reply that when the Regulatory Commission has held that no development rebate is to be given to a consumer, the Corporation has no authority at all to grant any development rebate and, therefore, the petitioners are not entitled to the reliefs claimed in the petition.

4. The petitioners have filed rejoinder to the counter affidavits dated 03.11.2000 and 26.12.2000 filed on behalf of Respondents No. 2 and 3. In the rejoinder, they have reiterated their stand taken in the petition.

5. It may be mentioned that Civil Appeal Nos. 1215-1216 of 2001 arising out of SLP Nos. 10665-10666 of 2000 with the instant Writ Petition No. 537 of 2000 were notified for final disposal before the Court on 20-09-2007. On the said date the appeals and the writ petition were called out for hearing and after hearing the parties at length following order was passed by the Court on 20.09.2007:-

“Heard the parties at length.

Hearing concluded.

Judgment reserved.

Mr. A.M.Singhvi, learned senior counsel appearing on behalf of the appellants shall file a detailed affidavit showing the consumption of the units in hill areas getting this incentive up to 1997 and after that when the new tariff was introduced in 1998. He may file the affidavit to this effect within two weeks from today. It will be open for the respondents to file their reply within two weeks thereafter.

WRIT PETITION (C) NO. 537 OF 2000

Let this matter be listed after the disposal of Civil Appeal No. 1215-1216 of 2001.”

Thus the instant writ petition was detagged and directed to be listed after the disposal of civil appeal Nos. 1215-1216 of 2001.

6. The decision in Civil Appeal No. 1215-1216 of 2001 was pronounced on December 10, 2007 and it is reported in U.P. Power Corporation Ltd. and another vs. Sant Steels and Alloys (P) Ltd. and others (2008) 2 S.S.C. 777. This Court by the said decision held that notifications dated 28.06.1996 and 03.01.1997 wherein rebate was given were issued under Section 49 of the Electricity (Supply) Act, 1948 and they were in the nature of delegated legislation. It was further held that on the basis of principle of promissory estoppel, the respondent No.2 i.e. UP Power Corporation Limited was not entitled to take away benefit given to the industries. However, the Court made reference to Uttar Pradesh Electricity Reforms Act, 1999 wherein no such benefit of rebate is recognized and held that the benefit of rebate cannot be extended after coming into force of Uttar Pradesh Regulatory Reforms Act, 1999, i.e., after 14.01.2000 because estoppel cannot be claimed against the statute. The findings recorded by this Court while disposing of Civil Appeals No. 1215-1216 of 2001 made in Paragraph 34 and 36 of the decision, read as under:

“34. Dr. Singhvi, learned Senior Counsel for the appellant Corporation submitted that now the Act of 1999 has come into force and that Act does not recognize the concessions given to the hill areas and that this is a primary legislation i.e. the Act passed by the State Legislature. Therefore, to this extent we can accept the submission of Dr. Singhvi that since the Act of 1999 does not recognize such Hill developmental benefits, therefore, from the date of passing of the Act of 1999 the said benefit cannot be accepted. We have stated above that there cannot be estoppel against the statute. Since such benefits have not been recognized by the Act of 1999. therefore, up to the date of coming into force of the Act of 1999, all the benefits which were being given to the respondent entrepreneurs shall be protected by invoking the principle of Promissory Estoppel but after coming into force of the Act of 1999, which is a primary legislation enacted by the State Legislature the benefits from the date the Act has come into force, cannot be made available to the respondents.

xxx xxx xxx

36. Therefore, as a result of our above discussion, we hold that the view taken by the Allahabad High Court on revoking (sic invoking) the principle of Promissory Estoppel is correct and the respondents units will be entitled to such benefits till the UP Electricity Reforms Act, 1999 came into force. Since after coming into force of the Act of 1999 no such concession has been granted, therefore, the concession shall survive till the Act of 1999 came into force. The appeals are accordingly disposed of with no order as to cost.”

7. On 20.01.2009 Division Bench of this Court heard W.P. No. 537 of 2000, and referred the matter to larger Bench on the question as to whether the rebate/concession granted to the petitioners from 1997 to 2002 should continue till 2002 or will cease to have effect after 14.01.2000, as was directed by the Division Bench in C.A. No. 1215-1216 of 2001 decided on 10.12.2007. Pursuant to the said direction the petition is placed before the present larger Bench.

The proceedings of the case indicate that the writ petition was listed for hearing on 03.02.2010, when the Court directed the learned Counsel for the State of Uttarakhand to seek instructions from the Government whether the State Government was inclined to extend the benefit of Hill Development Rebate of 33.33% on total amount of electricity bills to the industrial units as was done by the erstwhile State Government of U.P. In response to the same, Mr. Nitish Kumar Jha, Additional Secretary to the Government of Uttarakhand, has filed affidavit dated April 19, 2010 mentioning that the concession/rebate by way of incentive was part of the policy framed by the then State Government of UP and the same was enforceable till the year 1997, but consequent upon enforcement of the UP Reorganization Act, 2000, the hill areas of the erstwhile State of UP were carved out which now form part of the new State known as State of Uttarakhand. According to the affidavit, to accelerate the pace of industrial development in remote and backward hill region and to remove economic backwardness of the hill region, by generating the employment opportunities with the possibility to check the brain drain from these areas and keeping in view the uneven geographic situation, environmental and social conditions, the Government of Uttarakhand has framed “Special Integration Industrial Development Policy” for hills and remote areas of Uttarakhand. The affidavit proceeds to state that the policy formulated by the State of Uttarakhand is an attempt to help and promote the establishment of industries based on the locally available resources with the coordinated and integrated industrial growth but so far as the power concession to new industrial units is concerned, the aforesaid policy does not provide for any concession to the steel industries established in the State as it is not considered necessary by the State to grant subsidy to the steel industries in the larger public interest. Along with the affidavit, the relevant extract of the aforesaid policy is produced as Annexure R-1 and it is mentioned that in view of lack of provision in the industrial development policy, the concession of Hill Development Rebate of 33.33% granted earlier by UP Government cannot be extended to the steel industries located in the State of Uttarakhand.

8. This Court has heard the learned Counsel for the parties at length and in great detail. This Court has also considered the documents forming part of the petition and the authorities cited at the bar for the guidance of the Court. Though several authorities have been cited at the bar on both the sides, this Court proposes to refer to only those decisions which in fact helped the Court in resolving the dispute raised in the petition.

The respondents have contended that the petitioners are companies incorporated under the Companies Act, 1956 and as companies do not have Fundamental Right under Article 19, the petitions filed under Article 32 should not be entertained by the Court. Therefore, the question which needs to be answered is whether the instant petition filed under Article 32 of the Constitution is maintainable. A company not being a citizen has no Fundamental Right under Article 19. When a law infringes the Fundamental Right of a company, a shareholder cannot normally apply under Article 32 for enforcement of company’s Fundamental Right as in the eye of law two are distinct entities. A corporation in law is equal to a natural person and has legal entity of its own. The entity of a corporation is entirely separate from that of its shareholder applying the doctrine of piercing or lifting of veil and it cannot be said that the petition by corporation is a petition by the shareholder. It is important to mention that the petitioners are the companies registered under the provisions of the Companies Act, 1956. It is well settled that a company cannot maintain a petition under Article 32 of the Constitution for enforcement of Fundamental Rights guaranteed under Article 19 of the Constitution. A company, being not a citizen, has no Fundamental Rights under Article 19 of the Constitution. Nonetheless the companies would be entitled to claim right under Article 14 of the Constitution and, therefore, it would be relevant to examine whether the respondents have committed breach of Article 14 by withdrawing the concession in electricity rates given/granted earlier.

9. The short question which now falls for decision of this Court is whether the Hill Development Rebate of 33.33% on total amount of electricity bills under industrial policy of the erstwhile State Government of U.P. granted to the writ petitioners will cease to have effect after 14.01.2000 when U.P. Electricity Reforms Act, 1999 came into force or should continue thereafter, as can be seen from the decision in U.P. Power Corporation Limited & Anr. vs. Sant Steels and Alloys (P) Ltd. & Ors. (Supra).

10. Mr. Shanti Bhushan, learned Senior Counsel for the writ petitioners submitted that the concessions in the bills for power supply were given to the industries set up in the hill areas in view of the direction given by the State Government in exercise of power under Section 78-A of the Act of 1948, pursuant to which necessary notifications granting concessions were issued and as acting upon the promises contained in those notifications, the private entrepreneurs had made huge investments and acted to their detriment and, therefore, now the respondents cannot wriggle out from those promises and are estopped from withdrawing those concessions. Placing reliance on the observations made in para 30 of the reported decision in U.P. Power Corporation Ltd. and another vs. Sant Steel and Alloys (P) Ltd. (Supra) it was emphasized that therein the Court took the notice of the fact that in the UP Electricity Reforms Act, 1999 which came into force with effect from January 14, 2000 the benefit granted under the previous Act was neither specifically withdrawn nor it was stipulated that the said benefit would not be available after coming into force of the said Act with effect from 14.01.2000. Based on these observations, it was argued that in such a situation the principle of promissory estoppel which has been evolved by the Courts which is based on public policy would not permit the State to revoke/withdraw he benefits already granted to the petitioners. As noticed earlier, the Civil Appeals arising out of SLP’s filed by UP State Power Corporation were notified for hearing with the instant writ petition. It is difficult to fathom the reason, which prompted de-tagging of the writ petition when Civil Appeals were heard on merits. The petitioners could neither offer any plausible explanation nor could they point out the relevant circumstances which resulted into the de-tagging of the instant writ petition from the civil appeals. There is no manner of doubt that certain observations made in paragraphs 34 and 36 quoted above from the reported decision are against the present petitioners but the Court also held that all the benefits which were being given to entrepreneurs shall stand protected before coming into force of the Act of 1999 on the principle of promissory estoppel. Therefore, this Court will have to consider the question whether the reasoning adopted by the Division Bench for coming to the said conclusion is legal, though it was made clear to all the learned counsel for the parties that the instant Writ Petition cannot be treated as an appeal against the decision dated December 10, 2007 rendered by the two learned Judges of this Court in Civil Appeal Nos. 1215-1216 of 2001.

11. In view of the observations made by the Division Bench of this Court in the reported decisions, the questions that fall for consideration of this larger Bench are whether a benefit given by a statutory notification can be withdrawn by the Government by another statutory notification and whether the principles of promissory estoppel would be applicable in a case where concessions/rebates given by a statutory notification are subsequently withdrawn by another statutory notification. It is an admitted position that the notification dated June 28, 1996, granting rebate to the industries set up in hill areas, was issued in exercise of powers conferred by Section 49 of Electricity (Supply) Act, 1948. By the said notification rebate in electricity charges to the extent of 33.33% was given to the industries, which were set up in the hill areas during the specified period. It is also an admitted position that thereafter, by notifications dated June 18, 1998 and January 25, 1999, issued in exercise of the powers conferred by Section 49 of the Act of 1948, the percentage of rebate granted by the earlier notification was reduced to 17%. However, by notification dated August 7, 2000 the benefit, which was granted to the industries set up in the hill areas regarding rebate in the electricity charges, was completely withdrawn. What is relevant to notice is that it is not in dispute that the notification dated August 7, 2000 withdrawing the benefits granted earlier, was issued in exercise of powers conferred by Section 24 of the Uttar Pradesh Electricity Reforms Act, 1999. The above mentioned fact makes it evident that the benefits, which were granted and/or curtailed in exercise of statutory powers, were subsequently withdrawn in exercise of another statutory power conferred by another statute, namely, Uttar Pradesh Electricity Reforms Act, 1999. In the light of above mentioned facts, the question whether principle of promissory estoppel would apply to exercise of statutory powers will have to be considered. The doctrine of promissory estoppel is by now well recongized and well defined by catena of decisions of this Court. Where the Government makes a promise knowing or intending that it would be acted on by the promisee and, in fact, the promisee, acting in reliance on it, alters his position, the Government would be held bound by the promise and the promise would be enforceable against the Government at the instance of the promisee notwithstanding that there is no consideration for the promise and the promise is not recorded in the form of a formal contract as required by Article 229 of the Constitution. The rule of promissory estoppel being an equitable doctrine has to be moulded to suit the particular situation. It is not a hard and fast rule but an elastic one, the objective of which is to do justice between the parties and to extend an equitable treatment to them. This doctrine is a principle evolved by equity, to avoid injustice and though commonly named promissory estoppel, it is neither in the realm of contract nor in the realm of estoppel. For application of doctrine of promissory estoppel the promisee must establish that he suffered in detriment or altered his position by reliance on the promise. Normally, the doctrine of promissory estoppel is being applied against the Government and defence based on executive necessity would not be accepted by the Court. However, if it can be shown by the Government that having regard to the facts as they have subsequently transpired, it would be inequitable to hold the Government to the promise made by it, the Court would not raise an equity in favour of the promisee and enforce the promise against the Government. Where public interest warrants, the principles of promissory estoppel cannot be invoked. Government can change the policy in public interest. However, it is well settled that taking cue from this doctrine, the authority cannot be compelled to do something which is not allowed by law or prohibited by law. There is no promissory estoppel against the settled proposition of law. Doctrine of promissory estoppel cannot be invoked for enforcement of a promise made contrary to law, because none can be compelled to act against the statute. Thus, the Government or public authority cannot be compelled to make a provision which is contrary of law. Having noticed salient features of the principle of promissory estoppel it would be relevant to refer to certain observations made by the two Judge Bench of this Court in U.P. Power Corporation Ltd. and another vs. Sant Steel and Alloys (P) Ltd. (supra). In the said decision the Court has observed in paragraph 33 of the reported decision as under:-

“33 ………………. But, after survey of all these cases on the subject, the judicial consensus that emerges is that whenever the State has made a representation to the public and the public has acted on that representation and suffered economically or otherwise, then in that case the State should be estopped from withdrawing such benefit to the detriment of such people except in public interest or against the statute. So far as the public interest as involved in the present case is concerned, we have found that there was no overwhelming evidence to revoke the benefit granted to the industrial units in the hill areas. So far as the statute is concerned, the notification was issued under Section 49 of the Act of 1948 and the same was revoked under Section 49 of the Act of 1948 though there was no such provision contained in Section 49 that it will be open to the Corporation to revoke the same but could be possible by invoking the principle of General Clauses Act. But in (sic case of) such delegated legislation such withdrawal could only be permitted if larger public interest is invoked or if the Act is passed by the legislature.”

A critical analysis of the above quoted passage makes it evident that the two Judge Bench was of the view that notification issued under Section 49 of the Act of 1948 can be revoked/modified only if express provision was made for the revocation/modification of the said notification under Section 49 itself and the Court found that as there was no such provision contained in Section 49, it was not open to the Corporation to revoke the same. Further, though the Court made reference to General Clauses Act, it added that the provisions of General Clauses Act would be applicable in case of delegated legislation if withdrawal/curtailment of benefit was in larger public interest or if the legislation was enacted by the Legislature authorizing the Government to withdraw/curtail the benefit granted by a notification. Under the circumstances the two notifications curtailing the benefit to 17% were treated as contrary to Section 49 of the Act of 1948. On review of the law on the subject and the relevant statutory provisions, this Court finds that, for the reasons mentioned hereinafter, the above statement of law is not an accurate proposition of law.

12. It may be mentioned that the Electricity (Supply) Act, 1948 was enacted by the Parliament to provide for the rationalization of the production and supply of electricity and generally for taking measures conducive to electrical development. The Electricity (Supply) Act, 1948 being a Central Act, the provisions of Sections 14 and 21 of the General Clauses Act, 1897 would be applicable. Section 14 of the General Clauses Act, 1897 reads as under:-

“14. Powers conferred to be exercisable from time to time. – (1) Where, by any Central Act or Regulation made after the commencement of this Act, any power is conferred, then unless a different intention appears that power may be exercised from time to time as occasion requires.

(2) This section applies also to all Central Acts and Regulations made on or after the fourteenth day of January, 1887.”

Whereas Section 21 of the General Clauses Act, 1897 reads as under:-

“21. Power to issue, to include power to add to, amend, vary or rescind notifications, orders, rules or bye-laws. – Where, by any Central Act or Regulations a power to issue notifications, orders, rules or bye-laws is conferred, then the power includes a power, exercisable in the like manner and subject to the like sanction and conditions, if any, to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued.”

Section 14 deals with the exercise of a power successively and has no relevance to the question whether the power claimed can at all be conferred. By Section 14 of the General Clauses Act, 1897, any power conferred by any central enactment may be exercised from time to time as occasion arises, unless a different intention appears in the Act. There is no different intention in the Electricity (Supply) Act, 1948. Therefore, the power to issue a notification under Section 49 of the Act of 1948, can be exercised from time to time if circumstances so require. Section 21 is based on the principle that power to create includes the power to destroy and also the power to alter what is created. Section 21, amongst other things, specifically deals with power to add to, amend, vary or rescind notifications. The power to rescind a notification is inherent in the power to issue the notification without any limitations or conditions. Section 21 embodies a rule of construction. The nature and extent of its application must be governed by the relevant statue which confers the power to issue the notification, etc. However, there is no manner of doubt that the exercise of power to make subordinate legislation includes the power to rescind the same. This is made clear by Section 21. On that analogy an administrative decision is revocable while a judicial decision is not revocable except in special circumstances. Exercise of power of a subordinate legislation will be prospective and cannot be retrospective unless the statute authorizes such an exercise expressly or by necessary implication. The principle laid down in Section 21 is of general application. The power to rescind mentioned in Section 21 is without limitations or conditions. It is not a power so limited as to be exercised only once. The power can be exercised from time to time having regard to the exigency of time. When by a Central Act power is given to the State Government to give some relief by way of concession and/or rebate to newly established industrial units by a notification, the same can be curtailed and/or withdrawn by issuing another notification under the same provision and such exercise of power cannot be faulted on the ground of promissory estoppel. It would be profitable to remember that the purpose of the General Clauses Act is to place in one single statute different provisions as regards interpretations of words and legal principles which would otherwise have to be specified separately in many different Acts and Regulations. Whatever the General Clauses Act says whether as regards the meaning of words or as regards legal principles, has to be read into every statute to which it applies. Further, power to curtail and/or withdraw the notification issued under Section 49 of the Electricity (Supply) Act, 1948 giving rebate is implied under Section 49 itself on proper interpretation of Section 21 of the General Clauses Act. Therefore, this Court is of the firm opinion that, power to curtail and/or withdraw the notification issued under Section 49 of the Electricity (Supply) Act, 1948, granting certain benefits, was available to the respondents.

13. By virtue of Sections 14 and 21 of the General Clauses Act, when a power is conferred on an authority to do a particular act, such power can be exercised from time to time and carry with it power to withdraw, modify, amend or cancel the notifications earlier issued, to be exercised in the like manner and subject to like conditions, if any, attached with the exercise of the power. It would be too narrow a view to accept that chargeability once fixed cannot be altered. Since the charging provision in the Electricity (Supply) Act, 1948 is subject to the State Government’s power to issue notification under Section 49 of the Act granting rebate, the State Government, in view of Section 21 of the General Clauses Act, can always withdraw, rescind, add to or modify an exemption notification. No industry can claim as of right that the Government should exercise its power under Section 49 and offer rebate and it is for the Government to decide whether the conditions are such that rebate should be granted or not.

14. There being nothing repugnant to raising of public revenue in exercise of sovereign power of State of impose and collect taxes including electricity duty, in any provision of the Act of 1948 or the policy statement made in the notification granting rebate, the raising of public revenue by withdrawing or reducing exemption, cannot be said to be against the provisions of any statute. It is relevant to notice that the new industrial units, which were being established in the hill areas, could not have compelled the Government to exercise power under Section 49 of the Act of 1948 in their favour, for grant of rebate/concession in electricity tariff. Powers under Section 49 normally would be exercised by the State Government for industrial growth of an area and to generate employment opportunities for those who are residing in the area. However, on change in the circumstances, the Government can always reconsider the matter and can either curtail or withdraw the benefit granted earlier. This Court finds that the proposition of law laid down by the two Judge Bench in the decision mentioned above is too wide and has tendency to make Section 21 of the General Clauses Act, 1897, inoperative. The concept of the larger public interest introduced, before invocation of Section 21 of the General Clauses Act, in fact, amounts to amendment of the said provision, as notifications dated June 18, 1998 and January 25, 1999, issued under Section 49 of the Act of 1948, as well as notification dated August 7, 2000, issued under Section 24 of the Uttar Pradesh Electricity Reforms Act, 1999, are in the nature of legislations and, therefore, the principle of promissory estoppel would not apply to them.

15. At this Stage, it would be relevant to notice certain principles which have emerged from the reported decisions of this Court.

16. In State of Rajasthan and Another vs. J.K. Udaipur Udyog Ltd. and Another (2004) 7SCC 673, pursuant to its Fourth New Industrial Policy, the State of Rajasthan had framed and notified the Rajasthan Sales Tax/Central Sales Tax Exemption Scheme for Industries, 1998 under Section 15, Rajasthan Sales Tax Act, 1994 and Section 8(5) of the Central Sales Tax Act. The Scheme was brought into force w.e.f. 1.4.1998. The Scheme inter alia provided for grant of exemption to industrial units from payment of sales tax on intra-State and inter-State sale of goods and by-products manufactured within the State ofRajasthan. The cement plants and units were also entitled to exemption at the flat rate of 25% for eleven years. Sick units were also granted such benefits. The respondents before this Court were the Companies manufacturing cement in different units in Rajasthan and were sick industrial companies. They had applied for exemption under the Scheme claiming benefits. On 20-2-1999, the Director of Industries had certified that the application of the respondents was complete. During the pendency of the application of the respondents for sanction, a corrigendum dated 30.9.1999 was issued by the Government replacing the words “new units at Sl. No. 1″ in respect of the units covered by Sl. No. with new units at Sl. Nos. 1,2 and 3 as the case may be”. The result of the corrigendum was that sick cement units were placed under Sl. No. 4(a) on a par with new cement units under Sl. No.3. The respondents submitted a representation to the Screening Committee that the corrigendum should not affect their case. The Screening Committee permitted the respondents to avail of the benefits available under the corrigendum. Consequently, no sanction and no eligibility certificate was ever issued to the respondents. Since the respondents had been availing of the higher rates of exemption against Sl. No.1, provisional assessment orders and notices were issued to the respondents over the differential sales tax. The respondents then approached the Rajasthan High Court. Their grievance was that their rights under the Scheme had crystallized w.e.f. the date of certification of their applications and could not have been taken away by the corrigendum with retrospective effect. A learned Single Judge of the High Court held that the respondents were right in contending that the impugned corrigendum amounted to amendment but further held that the Government was competent to modify the Scheme. However, it was held that the corrigendum would be applicable from 7.1.2000 i.e. the date of its publication in the Official Gazette. A Division Bench, while upholding the said decision, further held that the rights available to the respondents under the original Scheme were substantive rights and could not be affected adversely unless the subsequent notification clearly manifested an intention to do so. The Division Bench held that no such intention was manifested by the corrigendum and that the amendment was arbitrary and violative of Article 14 being discriminatory vis-a-vis other sick industries. It was also held that the amendment could not discriminate against sick cement plants which had not availed of benefits of tax exemption earlier. It was concluded by the Division Bench that the benefits available to the respondents under the original Scheme were not affected by the corrigendum. This court while allowing the appeal has held as under in paragraph 25 of the reported decision:-

“An exemption is by definition a freedom from an obligation which the exemptee is otherwise liable to discharge. It is a privilege granting an advantage not available to others. An exemption granted under a statutory provision in a fiscal statute has been held to be a concession granted by the State Government so that the beneficiaries of such concession are not required to pay the tax or duty they are otherwise liable to pay under such statute. The recipient of a concession has no legally enforceable right against the Government to grant of a concession except to enjoy the benefits of the concession during the period of its grant. This right to enjoy is a defeasible one in the sense that it may be taken away in exercise of the very power under which the exemption was granted. (See Shri Bakul Oil Industries v. State ofGujarat(1987) 1 SCC 31, Kasinka Trading v. Union ofIndia(1995) 1 SCC 274 and Shrijee Sales Corpn. V. Union ofIndia(1997) 3 SCC 398.)”

From the principle enunciated in the above mentioned decision there is no manner of doubt that the rebate which was granted to the petitioners, was, by definition, a freedom from an obligation which the appellants otherwise were liable to discharge. The rebate was a privilege granting an advantage which was not made available to others. The rebate granted under Section 49 of the Electricity Supply Act of 1948 was, therefore, a concession granted by the State Government so that the beneficiaries of such concessions were not required to pay the electricity tariff, they were otherwise liable to pay under the said Act during the period of its grant. The petitioners, as recipients of concession, accepted to enjoy the benefits of the concession during the period of its grant. This right to enjoy was a defeasible one in the sense that it was liable to be taken away or withdrawn in exercise of the very power under which the exemption was granted.

17. Again in Arvind Industries and others vs State of Gujarat and others, AIR 1995 SC 2477, Government had withdrawn a concession given to a new industry. The claim of the industry was that such a course was not open to the Government. It was claimed by the Government that notification giving concession did not contain any promise that the benefits given to new industry would not be altered from time to time. While rejecting the claim of the Government is entitled to grant exemption to industries having regard to the industrial policy of the Government, but it is equally free to modify its industrial policy and grant, modify or withdraw fiscal benefits from time to time. What is important to notice is that this Court has held that in such circumstances the principle of promissory estoppel would not be attracted. What this Court finds is that several reported decisions some of which are rendered by the larger Bench were not considered by Division Bench of this Court while delivering judgment dated 10.12.2007 in Civil Appeal No. 1215 to 1216 of 2001. The legal effect would be that the finding recorded by the Division Bench of this Court, in the above mentioned case that the notification dated 18.6.1998 and 25.1.1999 reducing the rate of rebate from 33.33% to 17% were bad in law will have to be regarded as not laying down correct proposition of law. Thus, the petitioners in the present writ petition are not entitled to claim promissory estoppel against the Government and would not be entitled to any benefit on the basis of two Judge Bench judgment of this Court referred to earlier.

18. From the above discussion, it is clear that the petitioners cannot raise plea of estoppel against the notification dated August 7, 2000 reducing Hill Development Rebate to 0% as there can be no estoppel against the statute.

19. The next question, which falls for determination of this Court is whether the term stipulated in the contract entered into between the petitioners and the U.P. State Electricity Board (now the Corporation) stipulating that the respondent No.2 would give 33.33% rebate to the petitioners, is legally enforceable and whether in view of the said term the respondent No.2 precluded from changing the tariff rates.

20. It is pertinent to notice that before starting the industrial units, the petitioners had entered into agreement units, the petitioners had entered into agreement with the then U.P. State Electricity Board. Clause 7 of this agreement provided that the rates/tariff fixed/revised by the supplier, i.e., the respondent No.2 from time to time, will be applicable to the petitioners. Clause 7 of the agreement reads as under:-

“(7) a. The consumer shall pay for the supply of electric energy at the rates enforced by the supplier from time to time as may be applicable to the consumer.

b. The rate schedule applicable to the consumer at the time of execution of this agreement is annexed hereto as Annexure-2 H.V.-1.

c. The Rate Schedule above mentioned may, at the discretion of the supplier be revised by the supplier from time to time and in the case of revision the rate schedule so revised shall be applicable to the consumer.

d. Any levy such as sales tax, excise duty, electricity duty or any other charges by whatsoever name called by Central, State Government or other competent authority on the electricity, supplied to the consumer shall also be paid by the consumer.”

Sub-clause (a) of Clause 7 of the agreement in most clear terms provided that the consumer, i.e., the present petitioner shall pay for the supply of electric energy at the rates enforced by the supplier, i.e., the respondent No.2 herein from time to time. Though the rate schedule applicable at the time of execution of the agreement between the petitioners and the respondent No.2 was annexed to the agreement, it was provided specifically again in sub-clause (c) of Clause 7 that the rate schedule above mentioned may, at the discretion of the supplier, be revised by the supplier from time to time and in case of revision the rates schedule so revised shall be applicable to the consumer. It was also provided in the agreement that any levy such as sales tax, excise duty, electricity duty or any other charges by whatsoever name called by Central or State Government or other competent authority on the electricity supplied to the consumer shall also be paid by the consumer. Therefore, in view of the terms and conditions stipulated in Clause 7 of the agreement, this Court is of the firm opinion that the petitioners are precluded from challenging revision of the tariff in exercise of statutory powers conferred on the respondent No.2 in the larger public interest. This Court does not find any prohibition in the agreement by which the respondent No.2 was bound to give 33.33% rebate to the petitioners in all the circumstances or was precluded from changing the tariff rates. The petitioners being parties to the agreement now cannot turn around and argue that the respondent No. 2 is bound to give 33.33% Hill Development Rebate and can never change the tariff rates to the detriment of the petitioners. On the facts and in the circumstances of the case, therefore, this Court holds that the respondent No. 2 is not bound to give 33.33% Hill Development Rebate to the petitioners for the period specified in the notification irrespective of change in the tariff rates.

21. Another question, which needs to be answered, is whether the Court of law would be justified in interfering with the policy decision of the Government either to grant or not to grant rebate to certain industrial units. From the record of the case, it is evident that before August 8, 2000, the U.P. State Electricity Board had power to frame/fix tariff under Section 49 of the Electricity (Supply) Act, 1948. However, thereafter tariff was determined and is being determined by U.P. Electricity Regulatory Commission under the provisions of U.P. Electricity Reforms Act, 1999. What is relevant to notice is that earlier the U.P. State Electricity Board had power to make/fix a tariff other than the uniform tariff contemplated under Section 49(3) of the Act of 1948 for the electricity to be supplied to its consumers having regard to the geographical position of any area. However, this power was not conferred on U.P. Electricity Regulatory Commission under the Act of U.P. Electricity Reforms Act, 1999. As the power to fix/prescribe the different rates of tariff in relation to geographical area is not provided and/or is not available under Section 24 of the Act of 1999, this Court is of the opinion that the Regulatory Commission could not have issued such differential tariff giving rebate to certain industries set up having particular geographical location.

22. Mr. Shanti Bhushan, learned counsel for the petitioners, argued that under Section 12 of the Act of 1999 the State Government was entitled to issue policy directions to the Regulatory Commission just as it had earlier power to issue policy directions to the U.P. State Electricity Board under Section 78 of the Act of 1948. It is true that the State Government has power to issue policy directions to the Commission under the new Act. Therefore, the next question which arises for consideration is whether such a policy direction in fact was given by the State Government to the Regulatory Commission and the answer is obviously ‘No’. There is no manner of doubt that the State Government could have issued direction regarding subsidy to be made available by the State Government to the licensee. However, on February 3, 2010, when the Special Leave Petition was listed for hearing before this Court, the Court had directed the learned counsel for the State of Uttarakhand to seek instructions from the Government whether the State Government was still willing to extend subsidy of development rebate of 33.33% to the industrial units set up in hill area, as was done by the erstwhile State Government of Uttar Pradesh. Accordingly, the learned counsel for the State of Uttarakhand had taken appropriate instructions and as mentioned earlier, filed a short affidavit on April 19, 2010 for consideration of the Court. In the said affidavit it is specifically mentioned that with an objective to accelerate the pace of industrial development in remote and backward hill region and to remove economic backwardness of the hill region by generating the employment opportunities with the possibility to check the brain drain from this area and keeping in view the uneven geographical situation, the environmental and social conditions, the Government of Uttarakhand has framed ” Special Integration Industrial Development Policy” for hills and remote areas of Uttarakhand, but as far as power concession to new industrial units is concerned, the aforesaid policy does not provide for any concession to the steel industries established in the State because it was not considered necessary in the larger public interest to grant such subsidy. In the said affidavit it is mentioned that in view of lack of provision in the industrial development policy, the concession of Hill Development Rebate of 33.33% earlier granted by the Uttar Pradesh Government cannot be extended to the steel industries in the State of Uttarakhand. Whether to grant rebate to certain industrial units located in an area is basically and essentially a policy decision. The policy decision as reflected in the affidavit dated April 19, 2010 filed by Nitesh Kumar Jha, Additional Secretary, Government of Uttarakhand, Department of Energy, is neither found to be unreasonable nor found to be arbitrary in any manner. The Special Integration Policy introduced by the State of Uttarakhand for hills and remote areas of Uttarakhand is not subject-matter of challenge by the petitioners in the present writ petition. Grant of power concession to new industrial units is not found by the State Government to be in larger public interest. This Court, while exercising powers under Article 32 of the Constitution, cannot substitute the opinion and/or view of the Government and come to the conclusion that power concession to new steel industries is in the larger public interest and, therefore, should be made available to the new steel industries. Such a course is not permissible at all. The policy having not been found either arbitrary, capricious or unreasonable, this Court cannot interfere with the policy decision of the State Government. As observed earlier, there is nothing on record to show that any policy direction was given by the State of Uttarakhand to the Electricity Regulatory Commission to provide for rebate to industrial units situated in the hill area. The policy of the State Government in not granting rebate to industrial units situated in a particular area is basically a fiscal decision and in absence of arbitrariness of unreasonableness in the said policy, it cannot be a subject-matter of judicial review of this Court while exercising powers under Article 32 of the Constitution. Therefore, this Court holds that no case is made out by the petitioners to interfere with the said policy.

23. It will not be out of place to mention that in view of Section 29 of the Electricity Regulatory Commission Act, 1998, the licensee, i.e., the respondent No.2 has no authority to enforce any tariff other than the approved by the Commission. In view of Section 24 of the U.P. Electricity Reforms Act, 1999 the licensee, i.e., the respondent No.2 lacks power/authority to modify the tariff determined by the Commission and in case of any violation, the licensee would be exposing itself to the punishment prescribed under Section 28 of the Act of 1999. This Court in Association of Industrial Electricity Users vs. State of U.P. and others (2002) 3 SCC 711 as well as in West Bengal Electricity Regulatory Commission vs. CESC (2002) 8 SCC 715, and in BSES vs. Tata power Company Limited (2004) 1 SCC 195, has held that the licensee has no power to amend and/or modify the tariff determined by the Regulatory Commission. Grant of reliefs claimed by the petitioners would amount to compelling them to act against the statute. Such a course is not permissible while exercising powers under Article 32 of the Constitution. Thus the respondent No.2 Corporation cannot be directed to amend or modify the tariffs determined by the Commission nor the petitioners would be entitled to seek any direction against the licensee to amend or modify the tariff determined by the Commission.

24. What is relevant to notice is that if the power to reduce the rebate to 17% is assumed to be available, then power to reduce the rebate to 0%, as is done by the notification dated August 7, 2000, is also available. The petitioners have not challenged previous judgment of the High Court wherein this Court has held that the rebate would not be available/cannot be given after coming into force of the U.P. Electricity Reforms Act, 1999. The petitioners have also not challenged the tariff rates made applicable from September 16, 2001 to March 31, 2002 vide order dated September 1, 2000 by the U.P. Electricity Regulatory Commission, wherein no rebate based on geographical area has been provided. The discussion made above makes it very clear that the petitioners have not been differently treated nor the tariff is sought to be recovered in any illegal or arbitrary manner. Under the circumstances, this Court does not find breach of the salutary provisions of Article 14 of the Constitution. As no right guaranteed to the petitioners under Article 14 of the Constitution is found to have been breached, the present petition filed under Article 32 of the Constitution cannot be entertained and the petitioners are not entitled to the reliefs claimed in the instant petition. Therefore, the petitioners are precluded from challenging notification dated August 7, 2000 withdrawing the rebate in electricity rates.

25. For the foregoing reasons, the petition fails and is hereby dismissed. Rule is discharged. There shall be no order as to costs.

18
Jan

M.C.THOMAS Vs. SREE EMOOR BHAGAVATHY DEVASWOM

IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP(C).No. 181 of 2011(O)

1. M.C.THOMAS,

… Petitioner

Vs

1. SREE EMOOR BHAGAVATHY DEVASWOM,

2. JACOB ZACHARIAH,

3. ANNAMMA JACOB,

4. MARIAMMA CHERIAN,

5. RIJO M.CHERIAN,

6. RINKU CHERIAN,

7. PRADEEP ALEXANDER,

8. PRAMOD ALEXANDER,

9. PRAKASH ALEXANDER,

10. MOHAN THOMAS,

11. STATE OF KERALA, REPRESENTED BY

… Respondent 

For Petitioner :SRI.JACOB P.ALEX

For Respondent : No Appearance

The Hon’ble MR. Justice K.T.SANKARAN

Dated :18/01/2011

O R D E R

K.T.SANKARAN, J.

——————————————————

O.P.(C). NO. 181 OF 2011 O

——————————————————

Dated this the 18th day of January, 2011

JUDGMENT

The question of law involved in this Original Petition is whether a lease hit by Section 29 of the Madras Hindu Religious and Charitable Endowments Act, 1951 could be termed as an alienation so as to attract an application under SRO.No.718/78, which provides for a court fee of only `15/- for filing a suit for recovery of possession.

2. An extent of 327 acres of land belonging to Sree Emoor Bhagavathy Devaswom, Kallekulangara, Akathethara, Palakkad was taken on lease by the petitioner and seven others as per the registered lease deed dated 23.4.1969, executed between them and the trustee of the Devaswom. The lease deed authorizes cutting of trees for the purpose of planting the property with rubber. A lease rent of `5/- per acre was fixed for a period of six years from the commencement of the lease. Thereafter, an increased rent of `7.50 per acre was fixed. The lease was for a period of 36 years commencing from the date of lease.

3. The Department of Forests claimed that the property is a private forest which vested in the Government under the Kerala Private Forests (Vesting and Assignment) Act, 1971. The lessees filed applications before the Forest Tribunal claiming exemption under Section 3(3) of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Forest Tribunal allowed the applications. The State and the Conservator of Forests filed M.F.A.No.567 of 1980 challenging the order passed by the Forest Tribunal. The High Court dismissed the appeal filed by the State and the Conservator of Forests. Though R.P.No.272 of 1984 was filed by the appellants therein, that was also dismissed on 23.7.1993.

4. The Government, in exercise of the powers under Section 99 of the Madras Hindu Religious and Charitable Endowments Act, 1951, issued G.O.(MS) No.238/2002 dated 20.7.2002 to cancel the lease on the ground that the lease was created contrary to Section 29 of the Act. The Government granted an opportunity of being heard to the lessees. Thereafter, a Government Order was issued, by which, the lease was cancelled. The petitioner challenged the order cancelling the lease in O.P.No.3918 of 2003, which was dismissed by the Division Bench, as per the judgment dated 24.1.2008, holding that, at any rate, the period of 36 years fixed in the lease deed had expired and, therefore, the lessees had no right to continue in possession.

5. Sree Emoor Bhagavathy Devaswom filed O.S.No.568 of 2009 on the file of the Court of the Munsiff of Palakkad for recovery of possession of the property covered by the lease. A court fee of Rs. 15/- was paid by the plaintiff, relying on SRO.718/78 issued by the Government. SRO.718/78 reads as follows:

SRO.No.718/78:– …. In exercise of the powers  conferred by Section 75 of the Kerala Court Fees and  Suits Valuation Act, 1959 (Act 10 of 1960), the  Government of Kerala hereby reduce to a maximum of  rupees fifteen the fee payable under the said Act in  respect of suits to recover possession of immovable  property belonging to the Hindu Religious Institutions  coming under the purview of the Hindu Religious and  Charitable Endowments (Administration) Department  and which have been unauthorisedly alienated by the  Trustees of the said institutions. (Notification  No.14912/G4/77/Law dt. 12/07/1978, published in K.G.No.29 dt.18/07/1978.)”

6. The petitioner, in his written statement, contended that the court fee paid is not correct and therefore, the plaintiff is not entitled to the relief claimed. The court below raised issue No.3 as to whether the court fee paid is correct and answered the said issue holding that the suit is properly valued for the purpose of court fee. The abovementioned notification issued by the Government fixing the court fee as Rs. 15/- was relied on by the court below. The finding on issue No.3 is under challenge in this Original Petition.

7. Learned counsel for the petitioner submitted that the order passed by the court below is illegal and unsustainable. The counsel contended that a lease is not an alienation and, therefore, the notification issued by the Government fixing the court fee at Rs. 15/- does not apply in the present case. He submitted that the well accepted meaning of the expression “alienate” does not include a lease.

8. “Lease” is defined in Section 105 of the Transfer of Property Act as follows:

” A lease of immovable property is a transfer of a  right to enjoy such property, made for a certain time,  express or implied, or in perpetuity, in consideration of a  price paid or promised, or of money, a share of crops,  service or any other thing of value, to be rendered  periodically or on specified occasions to the transferor  by the transferee, who accepts the transfer on such terms.”

The expression “transfer of property” is defined in Section 5 of the Transfer of Property Act as “transfer of property” means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons; and “to transfer property” is to perform such act.” The Transfer of Property Act does not define the expression “alienate” or “alienation”. The Black’s Law Dictionary defines “alienate” and “alienation” thus:

“Alienate: To convey; to transfer the title to  property.  Alienation: In real property law, the transfer of  the property and possession of lands, tenements, or  other things, from one person to another. The term is  particularly applied to absolute conveyances of real  property. The voluntary and complete transfer from one  person to another. Disposition by will. Every mode of  passing realty by the act of the party, as distinguished from passing it by the operation of law.”

New Riverside University Dictionary defines “alienate” and “alienation” thus:

“alienate: ….

4. Law. To transfer (property) to a new owner.”

“alienation: ……

3. Law. The act of transferring property or title to it to another.”

Stroud’s Judicial Dictionary defines “alienation”, providing twelve items therein. Item (1) says thus:

“(1) “‘Alienation’ is as much to say, as to make a  thing another mans; or to alter or put the possession of  lands, or other things, from one man to another”  (Termes de la Ley). Therefore, a disentailing deed “is  not an alienation; it operates rather by way of  enlargement of the estate tail” (Re Gaskell and Walters  [1906] 2 Ch. 10, citing Lilford v. A.G., L.R. 2 H.L.63,  cited COMPETENT). It is the making over of land or an  interest therein (Lang v. Castle [1924] S.A.S.R.255); but  not the making over of a mere personal right, not in the  nature of property (Re Symon, Public Trustee v. Symon [1944] S.A.S.R. 102).”

9. Learned counsel for the petitioner relied on the decision in Pitamber Govinda Bhavsar v. Abdul Gafur Abdul Rajak and others (AIR 1972 BOMBAY 43) to support his contention that a lease does not constitute an alienation. The Bombay High Court in the aforesaid decision referred to the dictionary meaning of the word “alienation” and held thus:

“11. The Concise Oxford Dictionary, 1961 Edition,  states that in law the meaning of the word “alien” is  ”transfer of ownership of.” The meaning of the word  ”alienate” is given as “transfer ownership of”. The  meaning of the word “alienation” is given as  ”transference of ownership.” It would therefore appear  that the ordinary literary meaning of the word  ”alienation” implies transfer of ownership, and not  merely a transfer of a right of enjoyment.

12. Law Lexicon published by the Madras Law  Journal Office states that the word “alienation” is  generally applied to absolute conveyances of immovable  property. To use the word “alienation” is as much to say  as to make a thing another man’s or to alter or put the  possession of lands or other things from one man to  another. “Alienation” imports an actual transfer of title.”

10. With respect, I am not inclined to accept the view taken in AIR 1972 Bombay 43. “Transfer of Property” under Section 5 of the Transfer of Property Act is an act of conveyance of property. A lease of immovable property is also a transfer, as provided in Section 105 of the Transfer of Property Act. In a lease also, there is conveyance of right or title. The right of the lessee to possess and enjoy the leasehold property is implicit in a lease. The title of the lessee is possessory title as well. A lessee has rights and liabilities as provided in the Transfer of Property Act. A lessee can be evicted from the property only in accordance with law. A lessee’s right becomes absolute title under the provisions of Land Reforms legislations. Even commercial leases are protected under Land Reforms legislations and/or Rent Control legislations. Ownership in respect of property consists of a bundle of rights. The various rights and interests in the property need not necessarily belong to the same person. They may belong to more than one person. For example, mortgagor and mortgagee, lessor and lessee, life estate holder and remainderman. The subordinate or subsidiary rights constitute interests in property. A transfer of absolute ownership or a transfer of subordinate or subsidiary rights would be a transfer of property. Such transfer would constitute “alinenation”.

11. The expression “alienate” is dealt with in the Law Lexicon by P.Ramanatha Aiyar, which reads as follows:

“Alienate is to transfer property from one person  to another. The word “alienate” in C.P.C. Sch.III, para  11 is used ejusdem generis with the words preceding it,  namely, mortgage, charge and lease, and manifestly  contemplates a transfer which would have a present  effect and not a devise which can only have operation  after the death of the testator. (Muhammad Sayeed v.  Muhammad Ismail) 33 All. 233 = 7 A.L.J.1176 = 8 I.C.  834). The word “alienate” would include a device by will.  Narain v. Krishnaji : 32 Bom.L.R.1249 = AIR 1930 Bom. 534.”

12. A leasehold right can also be subject matter of a transfer. Section 10 of the Transfer of Property Act reads as follows:

10. Condition restraining alienation:– Where  property is transferred subject to a condition or limitation  absolutely restraining the transferee or any person  claiming under him from parting with or disposing of his  interest in the property, the condition or limitation is void,  except in the case of a lease where the condition is for  the benefit of the lessor or those claiming under him:  provided that property may be transferred to or for the  benefit of a women (not being a Hindu, Muhammadan  or Buddhist), so that she shall not have power during  her marriage to transfer or charge the same or her beneficial interest therein.”

The heading of Section 10 is “condition restraining alienation”. However, in the body of the Section, the word “alienation” does not occur. “Parting with or disposing of” a person’s interest in the property is “alienation”. Creation of a lease by a person having absolute title is a transfer. Transfer of his rights by such lessee is also a transfer. In both cases, there is alienation — alienation of the rights of the transferor.

13. I am of the view that in the present case, it is not absolutely essential to search for the meaning of “alienation” or “alienate” in the dictionaries or in any decision with reference to the interpretation of other Acts. The relevant portion of Section 29(1) of the Madras Hindu Religious and Charitable Endowments Act, 1951 provides thus:

29. Alienation of immovable trust property —  (1) Any exchange, sale or mortgage and any lease of  any immovable property belonging to, or given or  endowed for the purposes of, any religious institution  shall be null and void unless it is sanctioned by the  Commissioner as being necessary or beneficial to the institution:”

Section 29 of the Act contains the heading “alienation of immovable trust property”. In sub-section (1) of Section 29, it is provided that any exchange, sale or mortgage and any lease of any immovable property shall be null and void unless it is sanctioned by the Commissioner as being necessary or beneficial to the institution. Therefore, it is abundantly clear that a transaction of lease is also treated by the legislature, for the purpose of the application of Section 29 of the Madras Hindu Religious and Charitable Endowments Act, as alienation. It is in that context SRO.No.718/78 should be interpreted, where the expression “unauthorisedly alienated” occurs. The Government issued the notification fixing only Rs. 15/- as the court fee payable in respect of suits for recovery of possession of immovable properties belonging to Hindu Religious Institutions, which were unauthorisedly alienated. No meaning other than the meaning assigned in Section 29 of the Hindu Religious and Charitable Endowments Act for the expression “alienation” could be given, though the word “alienation” is not defined in the Hindu Religious and Charitable Endowments Act. Section 29 makes the position clear that the legislature consciously included lease also within the purview of alienation.

The order passed by the court below holding that the court fee payable is only Rs. 15/- is right and it is well supported by the SRO issued by the Government and the provisions of law mentioned above. No interference is called for. The Original Petition is accordingly dismissed. It is made clear that the findings and observations made above are only for the purpose of finding whether the court fee paid is correct or not and they shall not be treated as findings with respect to the merits of the case.

(K.T.SANKARAN)

Judge ahz/

14
Jan

PURUSHOTHAMAN Vs. DIVAKARAN

IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP(C).No. 99 of 2011(O)

1. PURUSHOTHAMAN, AGED 57 YEARS,

2. SANTHAMMA, W/O.PURUSHOTHAMAN,

… Petitioner

Vs 1.

DIVAKARAN, S/O.KRISHNAN,

2. ANIRUTHAN, S/O.KRISHNAN,

3. ANIL KUMAR, S/O.KRISHNAN,

4. ANITHA, D/O.KRISHNAN,

5. ANILAJAN, S/O.KRISHNAN,

… Respondent 

For Petitioner :SRI.M.NARENDRA KUMAR

For Respondent : No Appearance

The Hon’ble MR. Justice K.T.SANKARAN

Dated :14/01/2011

O R D E R

K.T.SANKARAN, J.

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O.P.(Civil) No.99 of 2011

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Dated this the 14th day of January, 2011

JUDGMENT

The respondents filed O.S.No.521 of 2002 on the file of the court of the Munsiff of Pathanamthitta against the petitioners for fixation of boundary of the plaint schedule property and for injunction. The petitioners filed O.S.No.523 of 2002 against the first respondent and another for permanent prohibitory injunction restraining the defendants from trespassing upon the plaint schedule property therein. Both the suits were tried together by the trial court and the suits were dismissed. On appeal as A.S.Nos.158 of 2005 and 186 of 2005, the appellate court dismissed A.S.No.186 of 2005 filed by the petitioners against the judgment and decree in O.S.No.523 of 2002 and allowed A.S.No.158 of 2005 filed by the respondents against the decree in O.S.No.521 of 2002. The operative portion of the judgment reads as follows :

“In the result, A.S.No.186/05 is dismissed. Parties will bear their respective costs.

A.S.No.158/05 is allowed with modification. That part of the judgment and decree of the court below in O.S.No.521 of 2002 declining the prayer for fixation of boundary is set aside. The rejection of the prayer for injunction in the suit is confirmed. The appellants/plaintiffs are permitted to put up a boundary of their choice at their expense along the line ‘R S V W T R 2′ in Ext.C1(b) plan. Ext.C1(b) plan will be appended to the decree. Parties will bear their respective costs.”

2. The appellate court held that both the parties have not made out a case for the grant of the discretionary remedy of injunction.

3. The respondents filed E.P.No.36 of 2010 in   O.S.No.521 of 2002 to execute the decree. The Execution Petition was allowed and the Amin executed the decree.

4. The petitioners filed E.A.No.146 of 2010 in the Execution Petition under Section 47 of the Code of Civil Procedure for issuing a direction to the decree holders to construct the compound wall on the boundary in such a way not to obstruct the pathway leading to the property in the possession of the petitioners. The court below, by the order impugned, dismissed the application. The court below noticed that no objection was filed by the judgment debtors in the Execution Petition. The executing court is bound to execute the decree. It was also noticed by the appellate court that the contention raised by the petitioners that the boundary through the line fixed by the appellate court would obstruct the pathway leading to the property in the possession of the petitioners, is a new contention which was not taken in the suits. Such a contention cannot be put forward in the   execution proceedings.

5. In the admitted factual situation, an application under Section 47 of the Code of Civil Procedure is not maintainable. The contention raised by the petitioners that if a compound wall is constructed on the boundary fixed by the court, it would obstruct the pathway leading to the property in the possession of the petitioners, should have been raised in defence to the suit filed by the respondents for fixation of boundary. The petitioners also filed another suit for permanent prohibitory injunction. In that suit also, a contention regarding the pathway was not raised. If so, such a contention cannot be put forward in the form of an application under Section 47 of the Code of Civil Procedure. The questions which could be raised under Section 47 are those relating to the execution, discharge or satisfaction of the decree. A possible contention which the defendants could take in the suit could not be taken as a ground for   maintaining an application under Section 47, in the execution proceedings initiated by the decree holders.

6. The learned counsel for the petitioners relied on Gopalakrishna Kamath vs. Bhaskar Rao (1988 (2) KLT 352). In that case the contention raised by the petitioner therein was while delivering the property in execution of the decree, certain movables belonging to the petitioner therein were also wrongly delivered. The petitioner, therefore, filed an application in the execution proceedings for getting back those movable items. In that context, the learned Single Judge held that if the property not covered by the decree is delivered in execution of the decree, there arises a situation which, in law is called “action in excess of the decree”. In such cases the proper remedy for the judgment debtor to recover the property delivered in excess of the decree is by an application under Section 47 and not by a separate suit.   

7. In Merla Ramanna vs. Nallaparaju and others (AIR 1956 S.C. 87), it was held that when a sale in execution of a decree is impugned on the ground that it is not warranted by the terms thereof, that question could be agitated, when it arises between the parties to the decree, only by an application under Section 47 of CPC and not in a separate suit.

8. The learned counsel for the petitioners submitted that the plan attached to the decree would indicate that a pathway leads to the property in the possession of the petitioners and if execution of the decree is made in such a way denying the right of the petitioners to use the pathway, the remedy of the petitioners is to file an application under Section 47 and not to file a separate suit.

9. To consider whether the application under Section 47 of the Code of Civil Procedure is maintainable or whether a   separate suit would be maintainable or whether the suit would be barred under Section 47, the facts and circumstances of the case have to be analysed. If it is found that the question which is raised by the judgment debtors could be raised only in execution in terms of Section 47 of the Code of Civil Procedure, a separate suit would be barred. The principle behind Section 47 is to avoid multiplicity of suits and to ensure a complete and final disposal of the disputes in the same execution proceeding itself and not by a separate suit. The bar under Section 47 cannot be made use of by the judgment debtors to put forward contentions which are alien to the scope of Section 47 and to invite the decision of the court on those contentions in the execution proceedings. In other words, a contention which should be raised in a separate suit should not be allowed to be raised by way of an application under Section 47. The very purpose of Section 47 would be defeated if the judgment debtor is allowed to raise contentions which are beyond the scope of Section 47. If such   a contention is allowed to be raised, it would defeat the rights of the respondents therein (decree holders) to put forward their defence and to adduce evidence on those questions, which should be made only in a suit and not in an application under Section 47. In the present case, the contention as now raised by the petitioners could be a defence in the suit filed against them or it could be a ground of attack in the suit for an injunction filed by them. Having not raised the contention in the manner mentioned above, the petitioners cannot be permitted to raise that contention in an application under Section 47 of the Code of Civil Procedure. It is not necessary to decide in this Original Petition as to whether the petitioners would be precluded from bringing a fresh suit and whether a fresh suit would be barred by the principle of constructive resjudicata. That question does not arise in the present proceeding.

10. There is no case for the petitioners that there was   excess delivery or that the execution of the decree was made in a manner contrary to the terms of the decree. There is also no case that the decree is not executable. The petitioners do not have a case that the decree is void. Their only contention is that their right of way should be protected. That right was not adjudicated in the suit since such a contention was not raised. The petitioners are not entitled to take shelter under Section 47 of the Code of Civil Procedure to raise such a contention in execution.

The order passed by the court below is legal and proper. No interference is called for. The Original Petition is accordingly dismissed.

K.T.SANKARAN

JUDGE csl