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ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

Thursday, September 13, 2012

DVC retrospective - None of the reliefs claimed in D.V.C. No.8 of 2011 by the 2nd respondent can be called crimes. Though, the Act empowers a Magistrate to entertain the complaint of an aggrieved person under Section 12 of the Act and makes it incumbent on the Magistrate to make enquiry of the same under the Code of Criminal Procedure, 1973, reliefs under Sections 18 to 22 of the Act are in the nature of civil reliefs only. It is only violation of order of the Magistrate which becomes an offence under Section 31 of the Act and which attracts penalty for breach of protection order by any of the respondents. Similarly Section 33 of the Act provides for penalty for discharging duty by Protection Officer. Except under Sections 31 and 33 of the Act which occur in Chapter V, all the reliefs claimed under Chapter IV of the Act are not offences and enquiry of rights of the aggrieved person under Sections 18 to 22 of the Act cannot be termed as trial of a criminal case.Further, this Court in Sikakollu Chandra Mohan v Sikakollu Saraswati Devi by order dated 06.07.2010 in Crl.R.C.No.1093 of 2010 held that it cannot be said that provisions of the Act cannot be invoked in case separation between the parties was prior to the Act coming into force. Therefore, contention of the petitioners fails. 3. In the result, the Criminal Petition is dismissed.


HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU            

CRIMINAL PETITION No.5921 of 2012  

13.08.2012

Gundu Chandrasekhar and others

1. The State of A.P., rep by Public Prosecutor, High Court of A.P.,And another

Counsel for the Petitioners: Sri Gaddam Srinivas

Counsel  for the Respondents:  Additional Public Prosecutor

<Gist :

>Head Note:

? Cases referred:

  2009(1) ALT (Cri)-285

ORDER:

       
The petitioners 1 to 3 are husband and parents-in-law of the 2nd
respondent/aggrieved person in D.V.C.No.8 of 2011 of the lower Court.  The 2nd
respondent filed D.V.C. claiming several reliefs including reliefs of protection
order under Section 18, residence order under Section 19, monetary relief under
Section 20 and compensation under Section 22 of the Protection of Women from  
Domestic Violence Act, 2005 (in short, the Act).  The petitioners' counsel
contended that even as per allegations in the complaint, disputes for the
aggrieved person with the petitioners were in the year 2002 and there was
separation between the parties in the year 2003 and that since all the said
incidents happened prior to passing of the Act in the year 2005 and coming into
force of the Act in the year 2006, D.V.C. filed in the lower Court in the year
2011 is not maintainable under the Act.  He placed reliance on U.U.Thimmanna v
U.U.Santhya1 of this in this regard.  This Court observed:
        "There is no dispute that the Act came into effect when the Central
Government appoints 26.10.2006 as the date on which the Act was came into force. 
For acts of violence, certain penal provisions are incorporated.  Therefore, it
is a fundamental principle of law that any penal provision has no retrospective
operation, only prospective.  There is no allegation either in the report or in
the statement or in the complaint of the 1st respondent with regard to the acts
of domestic violence that took place on or after 26.10.2006.  Therefore,
continuation of proceedings against the petitioners is nothing but abuse of
process of Court."

2. None of the reliefs claimed in D.V.C. No.8 of 2011 by the 2nd respondent can
be called crimes.  Though, the Act empowers a Magistrate to entertain the
complaint of an aggrieved person under Section 12 of the Act and makes it
incumbent on the Magistrate to make enquiry of the same under the Code of
Criminal Procedure, 1973, reliefs under Sections 18 to 22 of the Act are in the
nature of civil reliefs only.  It is only violation of order of the Magistrate
which becomes an offence under Section 31 of the Act and which attracts penalty
for breach of protection order by any of the respondents.  Similarly Section 33
of the Act provides for penalty for discharging duty by Protection Officer.
Except under Sections 31 and 33 of the Act which occur in Chapter V, all the
reliefs claimed under Chapter IV of the Act are not offences and enquiry of
rights of the aggrieved person under Sections 18 to 22 of the Act cannot be
termed as trial of a criminal case.  Therefore, it is only in respect of
allegations under Sections 31 and 33 of the Act which are penal provisions, the
Act has no retrospective operation.  Even if it is held that reliefs under
Sections 18 to 22 of the Act have no retrospective operation, the Magistrate can
grant the reliefs in prospective manner and cannot grant the said reliefs with
reference to a date anterior to the date of commencement of the Act.  The 2nd
respondent/aggrieved person is also not claiming reliefs in retrospective manner
inasmuch as she is claiming all the reliefs prospectively, in the sense,
subsequent to date of filing of the case in the lower Court and not with effect
from any back date retrospectively.  Further, this Court in Sikakollu Chandra
Mohan v Sikakollu Saraswati Devi by order dated 06.07.2010 in Crl.R.C.No.1093 of
2010 held that it cannot be said that provisions of the Act cannot be invoked in
case separation between the parties was prior to the Act coming into force.
Therefore, contention of the petitioners fails.

3.  In the result, the Criminal Petition is dismissed.


_____________________________    
SAMUDRALA GOVINDARAJULU,J        
Dt.13th August, 2012

the insurance police is a comprehensive policy and covers the risk of damage to the vehicle insured as also risk coverage to 10 persons in all. Though it is not stated that the claimant who travelled in the jeep in question on the fateful day is a family member of the owner of the jeep nor the driver of the jeep, but was a third person. But it is not the case of either the insurance company or anybody else that the claimant was travelling as a gratuitous passenger or was a fare paid passenger or for reward. Inasmuch as the policy being a comprehensive policy and covers the risk of 10 persons in all, it cannot be said that the insurance policy does not cover the risk of the claimant who was travelling in the jeep in question. When once the policy being a comprehensive policy and covers the risk of ten persons, not being gratuitous passengers or fare paid passengers or for reward, the claimant being none of them, can be one of the ten persons covered under the comprehensive policy. In the absence of any evidence adduced that the jeep in question was used for hire or reward contrary to the provisions of the Motor Vehicles Act, it cannot be said the insurance policy does not cover the risk of the claimant. 4. Therefore, I am of view that the Tribunal below erroneously exonerated the liability of the 3rd respondent-insurance company from paying the compensation awarded jointly and severally.


HON'BLE  SRI JUSTICE V. ESWARAIAH      

CMA No.2701 OF 2003  

02-08-2012

Yeduwaka Thata Babu  

Allu Prasad, S/o.Appalanaidu others

!Counsel for the Appellant   Jayanti S.C. Sekhar

Counsel for the respondent No.3:   Mr. R.K. Suri

<Gist:

>Head Note:

?CITATIONS:

JUDGMENT ::  (  per Hon'ble Sri Justice V.Eswaraiah,J )

       
The claimant is the appellant herein filed OP No.524 of 1997 on the file of
Motor Vehicle Accidents Claims Tribunal-cum-Addl. District Judge, Vizianagaram,
claiming compensation of Rs.1,20,000/- for the injuries sustained by in the
accident on 25-2-1997 while he was travelling in a jeep bearing registration
No.AP 31E 8568 driven by its driver  in a rash and negligent manner and the said
jeep hitting a tree and turned turtle.
2.      The Tribunal below considering the oral and documentary evidence adduced
held that the accident occurred due to the rash and negligent driving of the
jeep in question by its driver who is respondent no.1, owned by respondent no.2
and insured by the respondent no.3. The Tribunal below taking into considering
the avocation and income of the claimant and the injuries sustained by him
granted total compensation of Rs.25,120/- payable by the respondents 1 and 2 who
are the driver and owner of the jeep in question exonerating the liability of
the 3rd respondent-insurance company on the ground that the insurance policy
does not cover the risk of gratuitous passenger.
3.      It is not in dispute that the insurance police is a comprehensive policy
and covers the risk of damage to the vehicle insured as also risk coverage to 10
persons in all.  Though it is not stated that the claimant who travelled in the
jeep in question on the fateful day is a family member of the owner of the jeep
nor the driver of the jeep, but was a third person.  But it is not the case of
either the insurance company or anybody else that the claimant was travelling as
a gratuitous passenger or was a fare paid passenger or for reward.  Inasmuch as
the policy being a comprehensive policy and covers the risk of 10 persons in
all, it cannot be said that the insurance policy does not cover the risk of the
claimant who was travelling in the jeep in question. When once the policy being
a comprehensive policy and covers the risk of ten persons,  not being gratuitous
passengers or fare paid passengers or for reward, the claimant being none of
them, can be one of the ten persons covered under the comprehensive policy.  In
the absence of any evidence adduced that the jeep in question was used for hire
or reward contrary to the provisions of the Motor Vehicles Act, it cannot be
said the insurance policy does not cover the risk of the claimant.
4.      Therefore, I am of view that the Tribunal below erroneously exonerated the
liability of the 3rd respondent-insurance company from paying the compensation
awarded jointly and severally. As to the adequacy or otherwise of the
compensation awarded by the Tribunal below, I do not see any valid grounds to
enhance the compensation than what is awarded by the Tribunal below.
5.      In the result, the appeal is allowed in part making the 3rd respondent-
insurance company also liable to pay the compensation granted by the Tribunal
below jointly and severally along with the other respondents who are driver and
owner of the accident jeep in question. No order as to costs.
______________________  
V. ESWARAIAH, J        
Dated: 2-8-2012

whether the presence of the petitioner is necessary for grant of divorce under Section 13B of the Hindu Marriage Act, 1955 (for short ‘the Act’). The petitioner is represented by Special Power of Attorney Holder, as he is presently residing in UK. He along with the respondent, who is his wife, presented an application for divorce by mutual consent under Section 13B of the Act, on 21.04.2011. After expiry of the statutory minimum period of six months, the case was posted on 31.12.2011. On the said date, the respondent and the Special Power of Attorney Holder of the petitioner were present. The affidavit of the petitioner herein was also filed. However, the lower Court has adjourned the case to 21.01.2012 with the direction to the petitioner to attend the Court on the said date. Feeling aggrieved by the said direction for personal presence of the petitioner, he filed the present civil revision petition. = In the instant case, the petitioner expressed his inability to be personally present as he is living in UK. There does not appear to be any objection from the respondent’s side for grant of divorce. As held by the Division Bench, unless there are suspicious circumstances or any reason to think that the averments contained in the affidavit filed by the petitioner may not be true, there is no reason for the lower Court to order personal presence of the petitioner. As noted above, the Special Power of Attorney Holder of the petitioner is pursuing the case and therefore, there is no requirement for the petitioner being personally present for disposal of the joint application filed for divorce.


THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY          

Civil Revision Petition No.875 of 2012

19.03.2012

Sri S.B.Tirumal Raj

Smt.Lakshmi Prasanna  

Counsel for the Petitioner:  Sri J.A.Qureshi
                               
Counsel for the respondent: ---

< Gist:

> Head note:

? Cases referred:
1995(3) ALD 341 (DB)

ORDER:
This civil revision petition arises out of order, dated 31.12.2011, in
O.P.No.619 of 2011, on the file of the learned Judge, Family Court, Hyderabad.
Even though notice was served on the respondent and acknowledgement in proof
thereof is filed by the petitioner's counsel along with memo, dated 09.03.2012,
no one entered appearance for the respondent.
The short issue that arises for consideration in this civil revision petition is
whether the presence of the petitioner is necessary for grant of divorce under
Section 13B of the Hindu Marriage Act, 1955 (for short 'the Act').  The
petitioner is represented by Special Power of Attorney Holder, as he is
presently residing in UK.  He along with the respondent, who is his wife,
presented an application for divorce by mutual consent under Section 13B of the
Act, on 21.04.2011.  After expiry of the statutory minimum period of six months,
the case was posted on 31.12.2011.  On the said date, the respondent and the
Special Power of Attorney Holder of the petitioner were present.  The affidavit
of the petitioner herein was also filed.  However, the lower Court has adjourned
the case to 21.01.2012 with the direction to the petitioner to attend the Court
on the said date.  Feeling aggrieved by the said direction for personal presence
of the petitioner, he filed the present civil revision petition.
At the hearing, Sri J.A.Qureshi, learned counsel for the petitioner, stated that
the provisions of Section 13B of the Act do not envisage personal presence of
the parties for granting decree of divorce by mutual consent.  He placed
reliance on the judgment of the Division Bench of this Court in Mrs.Padmakiran
Rao v. B.Venkataramana Rao1, wherein this Court considered the words "after
hearing the parties" in sub-section (2) of Section 13B of the Act and held as
under:
"...We do not think that this is a correct view to be taken.  'Hearing' does not
necessarily mean that both parties have to be examined.  The word 'hearing' is
often used in a broad sense which need not always mean personal hearing.  In any
case, the evidence of one of the parties i.e., the appellate herein was recorded
by the Court.  Thus, even if the word 'hearing' is construed in a literal sense,
that requirement must be deemed to have been satisfied in the instant case in
view of the examination of the appellant.  On the husband's side, there is
evidence in the form of an affidavit which can be legitimately taken into
account in view of Order XIX Rule 1 CPC.  It is not as if the affidavit has been
doubted or the other party wanted to cross-examine the deponent of the
affidavit.  When there are no suspicious circumstances or any particular reason
to think that the averments in the affidavit may not be true there is absolutely
no reason why the Court should not act on the affidavit filed by one of the
parties."

In the instant case, the petitioner expressed his inability to be personally
present as he is living in UK.  There does not appear to be any objection from
the respondent's side for grant of divorce.  As held by the Division Bench,
unless there are suspicious circumstances or any reason to think that the
averments contained in the affidavit filed by the petitioner may not be true,
there is no reason for the lower Court to order personal presence of the
petitioner.  As noted above, the Special Power of Attorney Holder of the
petitioner is pursuing the case and therefore, there is no requirement for the
petitioner being personally present for disposal of the joint application filed
for divorce.
For the above-mentioned reasons, the civil revision petition is allowed.  The
lower Court is directed to dispose of O.P.No.619 of 2011 on the next date of
hearing without insisting on the personal presence of the petitioner.

C.V.NAGARJUNA REDDY, J    
19th March, 2012

Monday, September 10, 2012

regularise the services of the applicant/first respondent notionally w.e.f. 25.11.1993 as per G.O.Ms.No. 212 dated 22.4.1994.- the regularization of the daily wage employees cannot be made with retrospective effect, but they are entitled to be considered as per the scheme of the Act in G.O.Ms.No.212 dated 22.4.1994 and G.O.P No. 112 dated 23.7.1997 for regularization from the date of issuance of the regularization order but not with retrospective effect i.e., from 25.11.1993. Therefore, the order of the Tribunal is unsustainable and liable to be set aside and accordingly the same is hereby set aside and the writ petition is allowed holding that the first respondent is entitled for regularization of his services from the date of issuance of the regularization order i.e., proceedings in R.O.C. No. 4598/2002/C1 dated 19.11.2010 but not with retrospective effect i.e., from 25.11.1993. No costs.


THE HON'BLE SRI JUSTICE V. ESWARAIAH AND THE HON'BLE SRI JUSTICE NOUSHAD ALI                

WRIT PETITION No.30408 of  2011  

06-08-2012

The Commissioner, Gudivada Municipality, Gudivada.

Medachinni Sitaramulu and others.

Counsel for the petitioner : Sri S. Nageswara Reddy

Counsel for Respondent No.1 : Sri B. Kamalakar Rao

Counsel for Respondent No.2 :  G.P. for Services-I.

< Gist:

> Head Note:

? Cases referred:
1. (2009) 8 SCC 480
2. (2009) 8 SCC 431

JUDGMENT : (Per Sri Justice V Eswaraiah)

        This writ petition is filed by the Commissioner of Gudivada Municipality,
Krishna District, assailing the order dated 13.6.2011 in O.A. No. 5463 of 2011
on the file of the A.P. Administrative Tribunal, Hydrabad (for short the
Tribunal).  The Original Application filed by the first respondent is allowed by
the Tribunal directing the respondents therein to regularise the services of the
applicant/first respondent notionally w.e.f. 25.11.1993 as per G.O.Ms.No. 212
dated 22.4.1994.  The writ petitioner is the third respondent in the O.A.
        2.      This Court while issuing notice before admission by order dated
17.2.2012 granted interim suspension.   The first respondent filed a vacate
petition in W.V.M.P. No. 1498 of 2012 to vacate the said interim order; however,
with the consent of the parties, the writ petition itself is taken up for
hearing.
        3.      Briefly stated the facts are that the first respondent herein was
appointed as Part Time Night Watchman by the writ petitioner vide proceedings in
ROC No. C3/1994/81 dated 18.2.1982 on a monthly remuneration of Rs.60/- and he
claims that he has been in continuous service, and worked for more than 10 years
as Part-time Night Watchman as on 25.11.1993 and entitled for regularisation of
his services in terms of G.O.Ms.No.212  Finance (PC.III) Department dated
22.4.1994 and   G.O.(P) No.112 dated 23.7.1997.   Proposals were submitted for
regularisation of his services through the Commissioner and Director of
Municipal Administration and accordingly, the Government issued orders in G.O.Rt
No. 1156 dated 12.10.2010 according permission to the third respondent herein to
regularise the services of the first respondent herein in the post of Public
Health Worker in terms of G.O. (P) No. 112 dated 23.7.1997 from the prospective
date i.e., date of issue of orders by the competent appointing authority,
subject to the condition that the said vacancy is clear, regular and continued
from time to time and no senior eligible person is overlooked/omitted.
Pursuant to the same, the third respondent herein issued proceedings in
Roc.No.7091/2002-M2 dated 22.10.2010  according permission to the writ
petitioner-Commissioner, Gudivada Municipality to regularise the services of the
first respondent in the post of Public Health Worker  subject to  the conditions
stipulated in G.O.(P) No. 112 Finance (PC.III) Department dt 23.7.1997.
Consequently, the writ petitioner issued proceedings in Roc No. 4598/2002-C1
dated 19.11.2010  appointing the first respondent as Public Health Worker on
temporary basis.
4.      Aggrieved by the said action, the first respondent filed O.A. No. 5463 of
2011 seeking a direction to the respondents to regularise his services from the
date of his initial appointment and pay all the monetary and service benefits in
terms of judgment of this Court in W.P. No. 359 of 2007 dated 2.11.2010.   On
consideration of the matter, the Tribunal by means of the impugned order dated
13.6.2011 allowed the said Original Application.   The operative portion of the
said order reads as under;
"In the present case also the applicant has completed 5 years of service by the
cut off date.  In these circumstances, this O.A. is also allowed.   The
respondents are directed to regularise the services of the applicant w.e.f.
25.11.1993 as per G.O.Ms No. 212.  However, the applicant is not eligible for
arrears of pay and he is eligible only for notional fixation of pay."

5.      Questioning the said order, the Commissioner, Gudivada Municipality,
Gudivada, filed the present writ petition contending that the first respondent
is entitled to regularisation only from the date of issuance of the order of
regularisation dated 19.11.2010  and not with retrospective effect i.e.,
25.11.1993.

        6.      The Governor of Andhra Pradesh, promulgated "Andhra Pradesh
(Regulation of Appointments to Public Services and Rationalisation of Staff
Pattern and Pay Structure) Ordinance, 1993, which was published in the State
Gazette on 25.11.1993.   The said Ordinance was replaced by the A.P. (Regulation
of Appointments to Public Services and Rationalisation of Staff Pattern and Pay
Structure) Act,  1994 (Act 2 of 1994), which was enforced with effect from
25.11.1993.   The said Act was enacted with objects as
"(a) totally banning such appointments in the institutions covered by
legislation; (b) imposing stringent penalties for making appointments by public
servants on violation of the law; (c) to protect public servants from being held
for contempt for non-compliance of the orders of Tribunal or High Court and also
for abatement of pending cases claiming regularization of services which are
already filed before the courts of law by making a suitable provisions therefor;
and
(d) to protect the interests of candidates registered with Employment Exchange,
the reservation rights of Scheduled Castes, Scheduled Tribes and Backward
Classes, the rights of the existing employees who are recruited through proper
channel and the functions of Andhra Pradesh Public Service Commission, District
Selection Committees and other Selection Committees constituted by the
Government. The legislation will prevent further deterioration of finances of
the State and at the same time conserve the resources for the welfare and
developmental activities."
        7.      As per Section 7 of the Act, 1994, no daily wage employees and
temporary appointees  are entitled for regularization.   After enacting the said
Act, 1994, the Government of Andhra Pradesh has issued G.O.Ms.No. 212 dated  
22.4.1994 prescribing the eligibility for regularization of the services of
those employed on daily wages or nominal muster roll or consolidated pay subject
to the condition that such persons had worked continuously for a minimum period
of five years and were continuing  as on 25.11.1993, subject to the following
conditions;
 "1) The persons appointed should possess the qualifications prescribed as per
rules in force as on the date from which his/her services have to be
regularised.
2) They should be within the age limits as on the date of appointment as
NMR/Daily wage employee.  
3) The rule of reservation wherever applicable will be followed and back-log
will be set- off against future vacancies.
4) Sponsoring of candidates from Employment Exchange is relaxed.
         5) Absorption shall be against clear vacancies of posts considered
necessary to be continued as per work-load excluding the vacancies already
notified to the Andhra Pradesh Public Service Commission / District Selection
Committee.
        6) In the case of Work charged Establishment, where there will be no
clear vacancies, because of the fact that the expenditure on Work charged is at
a fixed percentage of P.S. charges and as soon as the work is over, the services
of work charged establishment will have to be terminated, they shall be adjusted
in the other departments, District Offices provided there are clear vacancies of
last Grade Service."

        8.      Number of persons who were employed on daily wages or nominal muster  
rolls or consolidated pay but did not complete 5 years as on 25.11.1993, have
challenged the aforesaid G.O.Ms.No. 212 dated 24.4.1994 by filing Original
Applications before the A.P. Administrative Tribunal and writ petitions before
this Court.    A learned Single Judge of this Court, allowed the batch of writ
petitions holding that all persons employed on daily wages or nominal muster
roll or contract basis are entitled to be considered for regularization on
completion of five years.   The Division Bench, upheld the said order of the
learned single Judge, with the modification that daily wagers, etc would be
entitled to be considered for regularization with effect from the date of
completion of 5 years continuous service.    Against the said orders of the
Division Bench, the State Government carried the matter in appeal to Supreme
Court by filing a Special Leave Petition and the Supreme Court by its Judgment
in DISTRICT COLLECTOR/CHAIRMAN  Vs M.L. SINGH1 disposed of the appeal, the      
operative portion is reproduced as under;
"We have heard the learned counsel for the parties. These matters relate to
regularisation and payment of wages to the respondents who were employed on
daily wage basis. By the impugned judgment, the Division Bench of the High
Court, while affirming with modification the order passed by the learned Single
Judge has directed that all employees who have completed five years of
continuous service should be considered for regularization in accordance with
the terms of G.O.Ms. No.212, dated April 22, 1994 and that they should be paid
their wages at par with the wages paid to the permanent employees of that
category. As regards payment of wages there is no dispute between the parties
that the same have to be paid from the date of regularization. Insofar as
regularization is concerned, we are of the view that the High Court has rightly
directed that on the basis of the Notification G.O. Ms. No. 212, the respondent
employees shall be regularized with effect from the date or dates, they
completed five years continuous service. It is however made clear that the other
condition laid down in the said G.O.Ms. No. 212 will have to be satisfied for
the purpose of regularisation."



9.      The part time employees, who were not covered by Government Order dated
22.4.1994 also approached the Tribunal and High Court claiming regularization of
their services. By an interlocutory order dated 25.4.1997, the High Court
directed that a scheme be framed for regularization of their services.
The State Government implemented the orders of the High Court and issued G.O.(P)
No.112 dated 23.7.1997 for regularization of part time employees who had worked
continuously for a minimum period of 10 years and were continuing on 25.11.1993
subject to the following conditions:-
1. "Absorption shall be against clear vacancies of posts considered necessary to
be continued as per work-load excluding the vacancies already notified to the
Andhra Pradesh Public Service Commission or as the case may be, the District
Selection Committee.
2. The persons appointed should possess the qualifications prescribed as per
rules in force as on the date from which his or her services have to be
regularised.
3. The person should be within the age limit as on the date of appointment as
part-time employee.
4. The Rule of Reservation wherever applicable will be followed and back-log
will be set off against future vacancies.
5. The sponsoring of candidate from Employment Exchange is relaxed.
6. If there are two candidates, one part-time and the second one a full-time
employee (Daily Wage employee) of any category or name and there exists only one
vacancy, the senior most between the two in terms of continuous service already
rendered prior to 25-11- 1993 treating two years of part-time service as one
year of full-time service, relative seniority will be calculated and
regularization will be suggested for the senior among the two accordingly.
7. The regularization of services of full-time employee already made in terms of
G.O.Ms. No.212, Finance and Planning (FW.PC.III) Department, dt.22-4-1994 will
not be reopened for giving effect to the present order."
        10.     Thereafter, Act 2 of 1994 was amended by Act 3 of 1998 viz.,
"Andhra Pradesh (Regulation of Appointments to Public Services and
Rationalisation of Staff Pattern and Pay Structure) (Amendment) Act, 1998".
Section 7 of the principal Act 2 of 1994 was amended by inserting the following
proviso before the first proviso;

"Provided that the services of the person who worked on daily
wage/NMR/consolidated pay/contingent worker on full time basis continuously for
a minimum period of five years and is continuing as such on the date of the
commencement of the Act shall be regularized in accordance with the scheme
formulated in G.O.Ms.No. 212 Finance and Planning (FW.PC.II) Department dated
22.4.1994:
Provided further that the services of a person who worked on part time basis
continuously for a minimum period of ten years and is continuing as such on the
date of the commencement of this Act shall be regularized in accordance with the
scheme formulated in G.O.(P) No. 112 Finance & Planning (FW.PC.III) Department
dated 23.7.1997."

11.     The Act 2 of 1994 was again amended by Act 27 of 1998 substituting the
first proviso to Section 7 of the principal Act, which reads as under:
"Provided that the services of those persons continuing as on the 25th November,
1993 having completed a continuous minimum period of five years of service on or
before 25th November, 1993 either on daily wage, or nominal muster roll, or
consolidated pay or as a contingent worker on full time basis, shall be
regularised in substantive vacancies, if they were otherwise qualified
fulfilling the other conditions stipulated in the scheme formulated in G.O.Ms.
No. 212, Finance and Planning (FW.PC. III) Department, dated the 22nd April,
1994."

12.     The Supreme Court in A. MANJULA BHASHINI AND OTHERS Vs. MANAGING DIRECTOR,            
ANDHRA PRADESH WOMEN'S COOPERATIVE FINANCE CORPORATION LIMITED AND ANOTHER2                        
considered effects of the amendments and the claims of the daily wage employees
for their regularization in terms of G.O.Ms.No. 212 dated 22.4.1994, holding
that daily wage employees who have completed 5 years of regular service on or
before 25.11.1993 and working as on 25.11.1993, are only entitled for
regularization.
13.     The Act,1994 as amended vide Act 27 of 1998 was upheld by the Hon'ble the
Supreme Court of India in A MANJULA BHASHINI case (cited  supra) holding that it
cannot be said that the amendments made in Act 2 of 1994 would nullify or over-
ride the judgment of the Supreme Court in M.L. SINGH case (cited supra).  When
the Hon'ble Supreme Court decided the M.L. SINGH case, Amending Act 27 of 1998  
was not the subject matter in the said case and the Supreme Court did not
consider the effect of amendment with regard to the entitlement of the daily
wage workers who have completed 5 years of service on or before 25.11.1993 and
continuing as on that date.  In the said case, the Supreme Court while examining
the correctness of the judgment of the Division Bench of the High Court did not
consider the background in which the Act, 1994 was enacted, mischief sought to
be remedied by it and various provisions contained therein including Section 7
whereby it was made clear that no person employed on daily wage or on temporary
basis and continuing as such on the date of commencement of the Act shall have
or shall ever be deemed to have the right to claim regularization of service and
his/her services shall be liable to be terminated  at any time without any
notice and without assigning any reason.
14.     In A MANJULA BHASHINI case, the Supreme Court held that as per G.O.Ms.No.    
212 dated 22.4.1994 such persons who have worked continuously for a minimum  
period of five years on or before 25.11.1993 and are continuing as on that date,
alone are entitled to be considered for regularization in view of the Amendment
Act 3 of 1998 and Amendment Act 27 of 1998.    After considering various
judgments including the judgment in M.L.SINGH, the Supreme Court observed that
in none of those cases, the Supreme Court considered an issue akin to the one
examined in the case of A.MANJULA BHASHINI and therefore the proposition of law
laid down in referred cases cannot be relied upon for entertaining the claim of
daily wage employees for regularization  irrespective of the fact that they may
not have completed 5 years continuous service on or before 25.11.1993.  In that
view of the matter, it was held that the amendments made in the 1994 Act by Act
3 of 1998 and Act 27 of 1998, do not have the effect of nullifying or overriding
the judgment in
M.L. SINGH case and further held that policy of regularization contained in the
first proviso to Section 7 inserted by Act 27 of 1998 is one time measure
intended to benefit only those daily wage employees who have
completed 5 years continuous service on or before 25.11.1993 and employees who
completed 5 years service after 25.11.1993 cannot claim regularization.
Accordingly, it was held that the daily wage employees and others who are
covered by Section 7 of 1994 Act as amended by Act 27 of 1998 and whose services
have not been regularized so far shall be entitled to be considered for
regularization and their service shall be regularized subject to  fulfillment of
conditions enumerated in G.O.Ms.No. 212 dated 22.4.1994.  As per condition no.1
of G.O.Ms No. 212 dated 22.4.1994 and condition No.2 of G.O.(P) No. 112 dated
23.7.1997 the persons who worked continuously for a minimum period of 5/10 years
respectively on or before 25.11.1993  alone are entitled to be regularized by
the appointing authority if they possess the qualification prescribed as per the
rules as on the date of the orders regularizing their services.   That the
persons appointed should  possess the qualifications prescribed as per the rules
in force as on the date on which his/her service is to be regularized.    That
means, even though persons have completed 5 years minimum service as on or  
before  25.11.1993,  the qualification acquired subsequently by them for
regularization, can be taken into account as on the date of regularization. The
regularization shall only be from the date on which the regularization is
considered by passing appropriate orders.
15.     The regularization of the services of the persons who have completed 5
years of continuous service before 25.11.1993 depends upon the fulfillment of
various conditions viz., there shall be clear vacancy for absorption of the
post; requisite qualifications as on the date of passing the orders of
regularization  and subject to rule of reservation etc.   The absorption or
regularization cannot be with a retrospective effect  i.e., 25.11.1993 but as
per the scheme prescribed under the Act in G.O.Ms.No.212 which provides the
qualification and conditions for their entitlement of  regularization,
therefore, the Supreme Court held that the daily wage employees who are covered
by G.O.Ms No.212 dated 22.4.1994 as amended by Act 27 of 1998  substituting
first proviso to Section 7 of Act 1994, are entitled  to be considered for
regularization of their services subject to fulfillment of conditions enumerated
in G O Ms.No.212 dated 22.4.1994.   The Supreme Court in A MANJULA BHASHINI case    
directed the Government, its officers and agencies/instrumentalities of the
State to complete the exercise for regularization of the services of the
eligible employees but never held that they are entitled for regularization with
effect from 25.11.1993 irrespective of the date of passing regularization
orders.   The first respondent also did not question the Government orders in
G.O.Rt.No. 1156 Municipal Administration and Urban Development (G2) Department  
dated 12.10.2010 and the consequential orders.  The first respondent who worked
as part time worker is entitled for his regularization from the future date
i.e., date of issuance of the orders regularizing his services by the writ
petitioner vide proceedings in  R.O.C. No. 4598/2002/C1  dated 19.11.2010.
16.     For the foregoing reasons, we are of the opinion that the regularization
of the daily wage employees cannot be made with retrospective effect, but they
are entitled to be considered as per the scheme of the Act in G.O.Ms.No.212
dated 22.4.1994 and G.O.P No. 112 dated 23.7.1997 for regularization from the
date of issuance of the regularization order but not with retrospective effect
i.e., from 25.11.1993.   Therefore, the order of the Tribunal is unsustainable
and liable to be set aside and accordingly the same is hereby set aside and the
writ petition is allowed holding that the first respondent is entitled for
regularization of his services from the date of issuance of the regularization
order i.e., proceedings in  R.O.C. No. 4598/2002/C1  dated 19.11.2010 but not
with retrospective effect i.e., from 25.11.1993.  No costs.

_____________
V ESWARAIAH,J  


_____________
NOUSHAD ALI,J  
DATE:6.8.2012

Sunday, September 9, 2012

the Andhra Pradesh Rights in Land and Pattadar Pass Books Act, 1971 However, once it has emerged that there existed attachment and proceedings have also taken place, he has to take recourse to law to establish his rights and the filing of the suit by the petitioner was a step in that direction. When there are so many complications surrounding the land, be it as regards attachment or the consequential sale, the issuance of pattadar pass book and title deed in favour of the petitioner cannot be sustained. The question as to whether respondent No.6 held any land exclusively by herself, can certainly be examined in the pending suit. So is the case with the question as to the legality or otherwise of the sale in favour of respondent No.6. In case the petitioner is successful in the suit, the entries can certainly be made in his favour. Hence, the writ petition is disposed of, upholding the order under challenge, but directing that issuance of pattadar pass book and title deed in respect of the land in question shall await the outcome of O.S.No16 of 2011 on the file of the District and Sessions Judge, Visakhapatnam. There shall be no order as to costs. The miscellaneous petition filed in this writ petition also stands disposed of.


THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY        

Writ Petition No.24715 of 2012

09.08.2012

R. Siva Ramakrishna

The state of Andhra Pradesh and others

Council for the Petitioner: Sri G. Manohar

Counsel for the respondents: G.P. for Revenue

<Gist:

>Head Note:

?Citations:

ORDER:
     
The petitioner purchased an extent of Ac.1.23 cents of land, comprising
different sub-divisions of Survey No.20 of Koppaka Village, Anakapalli Mandal,
Visakhapatnam District through a sale deed, dated 28.03.2007, from
Smt.Kandregula Kanayamma, respondent No.7 herein, and her children. It is stated
that Ac.0.60 cents of that land was purchased by Kanayamma through sale deeds of
the years 1968 and 1972 with her stridhana property, and the balance of Ac.0.63
cents, which was purchased by her husband, Sri K.Pothuraju, has devolved upon
her and her children on the death of Pothuraju. The petitioner was issued
pattadar pass book and title deed and his name was also entered in the revenue
records. Sri Sakala Venkata Ramana, respondent No.6 herein, raised a plea that
the land in question was attached by the Government for recovery of arrears, the
same was brought to sale on 10.03.2000, that he emerged as the highest bidder
therein, and that the same was confirmed in his favour. On noticing this, the
petitioner filed O.S.No.16 of 2011 in the Court of the Principal District &
Sessions Judge, Visakhapatnam for declaration of his title over the land and for
consequential reliefs.
The District Collector, Visakhapatnam, respondent No.2 herein, came to know
about the issuance of pattadar pass book and title deed in favour of the
petitioner in respect of the land attached by the Revenue Department and
accordingly, instructed the Tahsildar, Anakapalli, respondent No.5 herein, to
apprise the appellate authority under Section 5 (5) of the Andhra Pradesh Rights
in Land and Pattadar Pass Books Act, 1971 (for short 'the Act'). Thus, an appeal
came to be filed/taken up by the Revenue Divisional Officer, Visakhapatnam,
respondent No.4 herein. Notice was issued to the petitioner and after
considering the matter in detail, respondent No.4 passed an order on 12.11.2009,
directing cancellation of the entries recorded in favour of the petitioner and
the pattadar pass book and the title deed issued in his favour in respect of the
land referred to above. R.P.No.9 of 2009 filed by the petitioner under Section 9
of the Act before the Joint Collector, Visakhapatnam, respondent No.3 herein,
was dismissed on 21.04.2012. Hence, this writ petition.
Sri G.Manohar, learned counsel for the petitioner, submits that the very
institution of appeal before respondent No.4 was untenable, since no aggrieved
party, much less, respondent No.6, has filed any Memorandum of Appeal. He
further submits that the so-called sale made in favour of respondent No.6 is
void ab initio, since the balance of consideration was not paid in the year 2000
within the stipulated time and that it was only in the year 2009, that the sale
was affected in favour of respondent No.6. He contends that once a suit is
pending in respect of the land for declaration of title, respondent Nos.3 and 4
ought to have desisted from disturbing the present state of affairs in the
revenue records.
The learned Government Pleader for Revenue, on the other hand, submits that the
sale in favour of the petitioner took place at a time when the property was
under attachment and thereby, is untenable. He further submits that noticing the
patent illegality that has crept into the records, respondent No.2 directed
presentation of the appeal and even, the petitioner did not challenge the
jurisdiction of respondent No.4 to entertain the matter.
The petitioner has described the manner in which his vendors have acquired title
over the property. It is a matter of record that he was issued pattadar pass
book and entries in the revenue records were also made in his favour. The appeal
against the proceedings issued by respondent No.5 in favour of the petitioner,
no doubt, was not filed by respondent No.6 or any other private individual. In
the ordinary course, one does not expect the District Collector to take any
steps in matters of this nature. Since his powers under the Act are delegated to
the Joint Collector, the matter virtually ends at that level. However, there
exist circumstances that warrant interference by the District Collector.
It is not in dispute that the land in question was attached under the provisions
of the Andhra Pradesh Revenue Recovery Act for recovery of certain arrears due
from one K.Pothuraju, the husband of respondent No.7 herein, one of the vendors
and father of other vendors. It is fairly well-settled that there cannot be a
valid transfer of property, which is under attachment. The question as to
whether the sale of the property in the auction was in any way vitiated,
virtually becomes secondary. Since the attachment was made by the Revenue
Department itself, respondent No.2 is certainly justified in ensuring that any
steps vis--vis the attached land in contravention of law are rectified.
The petitioner may have purchased the property, not being aware of the
attachment. However, once it has emerged that there existed attachment and
proceedings have also taken place, he has to take recourse to law to establish
his rights and the filing of the suit by the petitioner was a step in that
direction. When there are so many complications surrounding the land, be it as
regards attachment or the consequential sale, the issuance of pattadar pass book
and title deed in favour of the petitioner cannot be sustained. The question as
to whether respondent No.6 held any land exclusively by herself, can certainly
be examined in the pending suit. So is the case with the question as to the
legality or otherwise of the sale in favour of respondent No.6. In case the
petitioner is successful in the suit, the entries can certainly be made in his
favour.
Hence, the writ petition is disposed of, upholding the order under challenge,
but directing that issuance of pattadar pass book and title deed in respect of
the land in question shall await the outcome of O.S.No16 of 2011 on the file of
the District and Sessions Judge, Visakhapatnam. There shall be no order as to
costs.

The miscellaneous petition filed in this writ petition also stands disposed of.

_______________________  
L. NARASIMHA REDDY, J.  
Dt.09.08.2012

under Section 22(2) of the Specific Relief Act, 1963 the plaintiff can be permitted to amend the relief for refund of earnest money at any stage. Section.22(2) of the said Act reads as under:- "Section.22. Power to grant relief for possession, partition, refund of earnest money, etc., (1).......................... (2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the Court unless it has been specifically claimed: Provided that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief."However, it is to be noted that the provision under Section 22(2) of the Act is a special provision and it gives the power of amendment at any stage of the proceedings"The proviso to sub-clause (5) of section 21 is clear and unambiguous and enables the plaintiff to seek the amendment of the plaint at any stage of the proceeding. The object obviously is to avoid multiplicity of suits. The expression "at any stage" in it means without limitation either in the frequency or duration or length of time. The question of applying the provisions of the Indian Limitation Act in a case where the amendment of the plaint is sought either under sub-clause (5) of section 21 or sub-clause (2) of section 22 of the Act does not arise. A specific relief is an equitable remedy and the Courts are competent to grant the relief sought for or other specific remedies which are incidental. It is a matter of common knowledge that in some cases the contract becomes unenforceable and the party suffers some loss. In such a case, it is open for the party to ask for damages in the alternative in the same suit and Section21 of the Act provides for the same".


THE HONOURABLE SRI JUSTICE N.R.L.NAGESWARA RAO            

SECOND APPEAL NO.244 OF 2011      

29-08-2012

Padam Satyanarayana  

Smt.Ravula Varalakshmi and others

Counsel for the Appellant : Sri K.Chidambaram

Counsel for the Respondents: Sri Nimmagadda Satyanarayana  

<Gist :

>Head Note:

? Cases referred:

1.  1997-LAWS (PAT)-3-52
2.  AIR 2009 SC (SUPP) 2897
3. 1984 (1) An.W.R.336

JUDGMENT:-  

The defendant in O.S.No.14 of 1994 on the file of the court of Senior Civil
Judge, Kovvur is the appellant herein.

02.     The suit was one filed for specific performance of contract of sale
contending inter alia that the defendant has entered into an agreement of sale
on 17-12-1993 and first plaintiff paid an advance of Rs.1,15,000/- and the
balance of Rs.10,000/- is agreed to be paid by 17-03-1994. In case of default,
interest shall be paid @ 18%. After the said transaction, as there was an offer
for higher price, the defendant has issued a notice on 18-12-1993 with false
allegations for which a proper reply was given. Consequently, the suit was filed
for specific performance.

03.     The defendant has denied the sale transaction and claimed that the son-in-
law of the first plaintiff took the defendant to the house of the first
plaintiff on 17-12-1993 and asked the defendant to sign on blank stamped papers
and due to fear and threat, he signed on the said papers. During the pendency of
the suit, the relief of amendment for alterative relief of refund of money was
filed and defendant contended that the said claim is barred by time.

04.     After appreciation of the evidence on record, the court below has accepted
the agreement of sale as true, but, however, granted a decree for refund of the
advance money of Rs.1,15,000/- with interest @ 6%. As against that the appeal
was preferred to the VII Additional District Judge, West Godavari, at Eluru who
has also confirmed the said judgment and decree. Aggrieved by the said judgment,
the present Second Appeal is sought to be filed. The Second Appeal is admitted
on the following substantial questions of law:-
        (i) Whether the relief of refund of the consideration is barred by time;
and
        (ii) Whether Section 22 of the Specific Relief Act is independent or
subject to the provisions of the Limitation Act?

05.     The learned counsel for the appellant sought to contend that the courts
below have not properly appreciated the evidence with regard to execution of the
agreement and passing of the consideration. Evidently, it is a question of fact,
which has to be decided by the court below. Considering the evidence of PWs.1 to
5, both the courts have found that the agreement is true and on the next day of
the agreement, a notice is given by the defendant is no ground to accept his
contention. It is difficult to believe that the agreement was obtained by force
or coercion. The particulars of which are not properly pleaded. Therefore, the
appellant cannot be allowed to contend on the question of fact about the
truthfulness of the agreement and also the payment of the consideration.

06.     The learned counsel for the appellant sought to contend that the
alternative relief claimed by the plaintiff is barred by limitation as it was
not pleaded at the time of filing of the suit. As matter stands, evidently, the
alternative relief was not claimed when the suit was filed. The agreement of
sale is dated 17-12-1993 and the suit was filed on 17-03-1994. There is no doubt
about the fact that the alternative plea of the refund of consideration was
taken by the plaintiffs 2 to 5 who are the legal representatives of the first
plaintiff, who came on record in the year 1999. Evidently it is beyond three (3)
years from the date of suit and also from the date of agreement. It is to be
noted that under Section 22(2) of the Specific Relief Act, 1963 the plaintiff
can be permitted to amend the relief for refund of earnest money at any stage.
Section.22(2) of the said Act reads as under:-
"Section.22. Power to grant relief for possession, partition, refund of earnest
money, etc.,
(1)..........................
(2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted
by the Court unless it has been specifically claimed:
Provided that where the plaintiff has not claimed any such relief in the plaint,
the court shall, at any stage of the proceeding, allow him to amend the plaint
on such terms as may be just for including a claim for such relief."

07.     The learned counsel for the appellant relied upon a decision reported in
Bhagwati Prasad Jalan Vs. Smt.Prem Lata Devi Kedia1 whereunder the contention of
the appellant herein is supported. He also relied upon another decision reported
in M/S.Revajeetu Builders and Developers Vs. M/s. Narayanaswamy and Sons and  
Ors2 whereunder an amendment of the plaint introducing the new cause of action,
if it is barred by limitation, cannot be allowed.

08.     However, it is to be noted that the provision under Section 22(2) of the
Act is a special provision and it gives the power of amendment at any stage of
the proceedings. On this aspect, a decision rendered by this court reported in
Donthi Padmavathamma and another Vs. Suguna Fertilizers, by its Managing Partner
Durgamma Temple Street, Dharmavaram3 will answer the contention raised by the
counsel for the appellant and it was held in the said decision as under:-

"The proviso to sub-clause (5) of section 21 is clear and unambiguous and
enables the plaintiff to seek the amendment of the plaint at any stage of the
proceeding.  The object obviously is to avoid multiplicity of suits.  The
expression "at any stage" in it means without limitation either in the frequency
or duration or length of time.  The question of applying the provisions of the
Indian Limitation Act in a case where the amendment of the plaint is sought
either under sub-clause (5) of section 21 or sub-clause (2) of section 22 of the
Act does not arise.  A specific relief is an equitable remedy and the Courts are
competent to grant the relief sought for or other specific remedies which are
incidental.  It is a matter of common knowledge that in some cases the contract
becomes unenforceable and the party suffers some loss.  In such a case, it is
open for the party to ask for damages in the alternative in the same suit and
Section21 of the Act provides for the same".



09.     Therefore, in view of the above circumstances, there is no substantial
question of law involved in this Second Appeal and the same is liable to be
dismissed.,
Accordingly, the Second Appeal is dismissed. No costs. 


_______________________  
N.R.L. NAGESWARA RAO,J    
29-08-2012

Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the Act, for shortquashment of First Information Report in Crime No.353 of 2009 on the file of Narayanaguda Police Station, Hyderabad, whereunder case was registered under Section 354 IPC as well as under Sections 3 and 5 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the Act, for short). Be that as it is, for the reasons already set out, the 2nd respondent failed to make out a prima facie case either for the offence under Section 354 IPC or for the offences under Sections 3 and 5 of the Act. Consequently, the private complaint is liable to be quashed as against the petitioners. Accordingly, this petition is allowed. The complaint in Crime No.353 of 2009 on the file of Narayanaguda Police Station, Hyderabad, so far as the accused 1, 3 and 4, who are the petitioners herein, stands quashed. Be that as it is, for the reasons already set out, the 2nd respondent failed to make out a prima facie case either for the offence under Section 354 IPC or for the offences under Sections 3 and 5 of the Act. Consequently, the private complaint is liable to be quashed as against the petitioners. Accordingly, this petition is allowed. The complaint in Crime No.353 of 2009 on the file of Narayanaguda Police Station, Hyderabad, so far as the accused 1, 3 and 4, who are the petitioners herein, stands quashed.


HON'BLE SRI JUSTICE K.G.SHANKAR      

Criminal Petition No.10914 of 2009

23-8-2012

J.Chinna @ Naresh Kumar and 2 others

The State of A.P., Rep. by Public Prosecutor, High Court of Andhra Pradesh,
Hyderabad and Yellia ... Respondent De facto Complainant

Counsel for Petitioners:  Sri A.Prabhakar Rao

Counsel for the 1st Respondent: Public Prosecutor,High Court of A.P.

Counsel for the 2nd respondent: Sri G.Ashok Kumar Reddy

<Gist:

>Head Note:

? Cases referred:
   Nil.

Order:

        The petitioners seek for the quashment of First Information Report in
Crime No.353 of 2009 on the file of Narayanaguda Police Station, Hyderabad,
whereunder case was registered under Section 354 IPC as well as under Sections 3 
and 5 of the Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 (the Act, for short).  The petitioners are the accused 1,
3 and 4.  The 2nd respondent herein is the de facto complainant.  He is said to
be watchman of the building where the incident allegedly occurred on 14-9-2009.
Inter alia, it is the case of the 2nd respondent that the accused including the
petitioners herein outraged the modesty of the wife of the 2nd respondent and
also abused the 2nd respondent touching upon his community and making themselves  
liable for punishment for the offences under Sections 3 and 5 of the Act.

        2. It may be noticed that it is the case of the
2nd respondent that the modesty of his wife Poola was outraged by the accused.
He claimed that apart from himself, his wife also was beaten.  Thereafter, the
complaint reads that the wife of the 2nd respondent herein was molested and her
modesty was outraged.  There is no specific overt act against any of the
accused.  I am afraid that a sweeping statement that the accused molested Poola
and outraged the modesty of Poola is not making out a prima facie case against
the petitioners for the offence under Section 354 IPC.  I agree with the
contention of Sri A.Prabhakar Rao, learned counsel for the petitioners, that the
prima facie case against the petitioners for the offence under Section 354 IPC
is not made out, so much so the complaint is liable to be quashed insofar as the
case is under Section 354 IPC.

        3. Be that as it is, for the reasons already set out, the 2nd respondent
failed to make out a prima facie case either for the offence under Section 354
IPC or for the offences under Sections 3 and 5 of the Act.  Consequently, the
private complaint is liable to be quashed as against the petitioners.
Accordingly, this petition is allowed.  The complaint in Crime No.353 of 2009 on
the file of Narayanaguda Police Station, Hyderabad, so far as the accused 1, 3
and 4, who are the petitioners herein, stands quashed.
        4. Added to it, there is no evidence that any person witnessed the
incident to consider that the offence under Section 3(1)(x) of the Act occurred
within public view.
Sri G.Ashok Kumar Reddy, learned counsel for the 
2nd respondent, submitted that one Naresh and others were arrayed as witnesses 
in the private complaint.  Indeed, the private complaint claimed in the preamble
that apart from the complainant and his wife Poola, Naresh and other residents
were also witnesses.  However, in the body of the complaint, no averment was
made that the incident occurred in the presence of Naresh.  It was also not
mentioned as to who witnessed the incident apart from the accused and the
victims in the 2nd respondent and his wife.  I am afraid that the accused and
the victims cannot be considered to be "public" within the meaning of Section
3(1)(x) of the Act.  Apart from these people, no other person allegedly
witnessed the incident according to the complaint.
I, therefore, consider that prima facie case is not made out against the accused
for the offence under Section 3(1)(x) of the Act.  The question of considering
Section 5 of the Act does not arise as there is no allegation that it is a
repeated incident.
        5. It is contended by the learned counsel for the petitioners that in
fact, the 2nd respondent lodged
a complaint on the basis of which, a Summary Trial Case (STC) was registered
under Section 323 IPC against the culprits, so much so the present petition is
tantamount to double jeopardy.  I do not consider it appropriate to go into this
question where it is found that prima facie case is not made out against the
petitioners.  The learned counsel for the petitioners also contended that there
was delay of 1 month and 10 days in filing the private complaint.  The learned
counsel for the 2nd respondent explained the delay by pointing out that the
2nd respondent waited for the Police to take action and when the Police did not
take action, he lodged the private complaint.  Thus, the delay in filing the
private complaint has satisfactorily been explained by the 2nd respondent.

        6. Be that as it is, for the reasons already set out, the 2nd respondent
failed to make out a prima facie case either for the offence under Section 354
IPC or for the offences under Sections 3 and 5 of the Act.  Consequently, the
private complaint is liable to be quashed as against the petitioners.
Accordingly, this petition is allowed.  The complaint in Crime No.353 of 2009 on
the file of Narayanaguda Police Station, Hyderabad, so far as the accused 1, 3
and 4, who are the petitioners herein, stands quashed.

___________________  
K.G.SHANKAR, J.  
23rd August, 2012.

the pendency of a civil suit is no bar for criminal proceedings.It is the contention of the learned counsel for the petitioners that the dispute is purely a civil dispute and that the FIR consequently is liable to be quashed. As rightly submitted by Sri K.Venkateswara Rao, learned counsel representing the Public Prosecutor, the pendency of a civil suit is no bar for criminal proceedings. The 2nd respondent initiated criminal proceedings under Sections 420, 427, 454 and 506 IPC. The dispute, as already pointed out by me, can be resolved through evidence only. Consequently, this petition deserves to be dismissed.


HON'BLE SRI JUSTICE K.G.SHANKAR      

Criminal Petition No.10815 of 2009

23-8-2012

Rakesh Gupta and another      

State of AP, Rep. by Public Prosecutor, High Court, Hyderabad,
Through Station House Officer, Mahankali PS, Secunderabad
P.N.M.Raju, Holding GPA on behalf of N.Suryanarayana Raju De facto Complainant

Counsel for Petitioners:  Smt. Pushpinder Kaur

Counsel for the 1st Respondent: Sri K.Venkateswara Rao, Advocate, Rep.the
Public Prosecutor,High Court of A.P.

Counsel for the 2nd respondent: None

<Gist:

>Head Note:

? Cases referred:
   Nil.

Order:

        The 2nd respondent was served with notice, but no one appeared for the 2nd
respondent.  This petition is disposed of without hearing the 2nd respondent.
The petitioners, who are the accused 1 and 2 in Crime No.274 of 2009 on the file
of Mahankali Police Station, Secunderabad, seek for the quashment of the FIR.
The 2nd respondent laid a complaint before the Police alleging that the
petitioners have been interfering with the premises bearing Flat No.207, 2nd
Floor, Chandralok Complex, Secunderabad, wherefrom the petitioners have been
attempting to conduct their business.

        2. The learned counsel for the petitioners contended that the petitioners
have been running their business in premises bearing Flat No.220, 2nd Floor,
Chandralok Complex.  The petitioners are partners and allegedly have been
conducting business under the name and style of M/s. Appar Procon.  The basic
dispute thus is whether the premises is Flat No.207 or Flat No.220.  This is
a question of fact.  I am afraid that it cannot be decided whether the
petitioners are in Flat No.220 or Flat No.207 unless evidence is let in before
the trial Court.  Consequently, I consider that the present petition under
Section 482 Cr.P.C is misconceived.

        3. It would appear that in fact, the petitioners approached Police
alleging that the 2nd respondent had been interfering with the peaceful
possession and enjoyment of the petitioners over their property and that the
Police directed the parties to approach a Civil Court.  The learned counsel for
the petitioners contended that
a suit in O.S.No.533 of 2009 on the file of the I Junior Civil Judge, City Civil
Court, Secunderabad, in fact was filed by the petitioners herein seeking for
perpetual injunction against the 2nd respondent.  However, the petitioners have
not obtained temporary injunction orders in their favour.

        4. It is the contention of the learned counsel for the petitioners that
the dispute is purely a civil dispute and that the FIR consequently is liable to
be quashed. 
As rightly submitted by Sri K.Venkateswara Rao, learned counsel representing the
Public Prosecutor, the pendency of a civil suit is no bar for criminal
proceedings.
The 2nd respondent initiated criminal proceedings under Sections 420, 427, 454
and 506 IPC.  The dispute, as already pointed out by me, can be resolved through
evidence only.  Consequently, this petition deserves to be dismissed.

        5. However, in view of the bona fide contention of the petitioners, I
consider it appropriate to exempt the petitioners from appearing before the
Criminal Court till charge-sheet is laid.

        6. Accordingly, this petition is found to be devoid of merits and is
dismissed.  The petitioners, however, are exempted from appearing before the
Criminal Court till charge-sheet is filed.
___________________  
K.G.SHANKAR, J.  
23rd August, 2012.

A.P. Estates Abolition (Conversion into Ryotwari) Act, 1948 (for short 'the Act'),The interests of the petitioners can be protected by restricting the scope of examination of the matter by the 2nd respondent to the one of identification of the land and whether ryotwari pattas were granted in respect of the lands in the immediate neighbourhood of the land, which is the subject- matter of these proceedings.


THE HON'BLE MR JUSTICE L.NARASIMHA REDDY          

WRIT PETITION No.26480 OF 2010  
       
08.09.2012

Indukuri Anil and others and

The Commissioner (Appeals) and others.

Counsel for petitioners:        Sri A.K.Kishore Reddy

Counsel for Respondents :  GP for REvenue

<GIST:

>HEAD NOTE:  

?Cases referred

ORDER:
       
        The petitioners feel aggrieved by the order, dated 04.09.2010, passed by
the Commissioner (Appeals), Hyderabad, the 1st respondent herein, in a revision
filed under Section 7(d) of the A.P. Estates Abolition (Conversion into
Ryotwari) Act, 1948 (for short 'the Act'), in so far as it has remanded the
matter to the Joint  Collector-cum-Settlement Officer, Visakhapatnam, the 2nd
respondent herein.

        Briefly stated, the facts that gave rise to the filing of the writ
petition are:

        The land in old survey No.3 of Kapparada Village, Visakhapatnam Urban
Mandal, admeasuring Acs.66.60 cents, was part of Zamindari estate of the
Vizianagaram Zamindar. The estate holder gave it on permanent lease to one
Namballa Family, way back in the year 1865.  Thereafter, several transactions
have taken place, and ultimately, an extent of Acs.10.00 was purchased by
M/s.Jagannadha Raju, through a sale deed, dated 04.11.1969.  The said Company
obtained loan, from Bank of India, offering that property as security.  Since
the loan amount was not repaid, the Bank filed O.S.No.182 of 1972 in the Court
of I Additional Sub-ordinate Judge, Visakhapatnam.  The suit was decreed, and in
E.P.No.121 of 1978, the property was brought to sale.  M/s.V.Rama Murthy and
Sons, of which the petitioners herein were partners, emerged as highest bidder
and a sale certificate was issued in its favour, on 07.03.1980.  At the time of
dissolution of the firm, an extent of Acs.4.96 cents was allotted to the share
of the petitioners and the same is said to have been assigned revised survey
No.9/6.

        With inordinate delay, the petitioners submitted an application, under the
Act, for grant of ryotwari patta, only in the year 2003, before the 2nd
respondent.  The application was rejected, through order, dated 28.08.2004, on
the ground of delay.  Some discussion was also undertaken, on merits.  The
appeal preferred before the Director of Settlements was dismissed, on
28.08.2004.  Thereafter, the petitioners filed revision under Section 7(d) of
the Act, before the 1st respondent.  Through order dated 26.11.2005, the 1st
respondent remanded the matter to the appellate authority i.e. the Director of
Settlements, duly condoning the delay.  After remand, the Director of
Settlements, dismissed the appeal, through order, dated 10.06.2009.  The
petitioners filed revision before the 1st respondent for the second time, and
the same was disposed of through the impugned order, directing that the matter
be remanded to the 2nd respondent for consideration.

        Sri A.K.Kishore Reddy, learned counsel appearing for the petitioners,
submits that the denial of relief to the petitioners, either by the          2nd
respondent, or the appellate authority, was on the ground of delay and that the
land is non-ryoti. He contends that, once the 1st respondent has condoned the
delay in the earlier round of litigation and has taken the view that the land is
non-ryoti in nature in the impugned order itself, there was no necessity for him
to remand the matter to the
2nd respondent.

        Learned Government Pleader for Revenue, on the other hand, submits that
the appellate authority, deciding the appeal or revision, cannot be itself grant
ryotwari patta, and even if the contentions of applicant are accepted at such
levels, the matter has invariably to go back to the primary authority for
consideration.  He contends that, even if the two aspects, referred to above,
are held in favour of the petitioners, other questions, such as whether the
petitioners or their predecessors-in-title were in possession of the land, as on
the notified date, identity of the land, the present state of affairs etc., need
to be examined. 

        The Act provides for abolition of estates and the consequences that flow
from the same.  It recognises the rights of the persons in possession and
enjoyment of any land, the estate holders etc., and stipulates the conditions,
subject to which the ryotwari patta can be granted.  A detailed mechanism is
provided for, and the Act is considered to be one of the most complicated pieces
of legislation.

        The application for grant of ryotwari patta is required to be made within
the stipulated time.  However, the petitioners submitted such application only
in the year 2003 and there was delay of more than a decade.  The 2nd respondent
refused to entertain the application.  He has also expressed a doubt as to the
nature of land.  Ryotwari patta cannot be granted in respect of land which is
non-ryoti in nature.

        The appeal preferred by them was rejected.  It was only at the stage of
revision that the 1st respondent condoned the delay by accepting the reasons
assigned by the petitioners.  The proper course at that time would have been to
remand the matter to the primary authority i.e. the 2nd respondent.  However,
the remand was made to the appellate authority, and the appeal was dismissed.
Thus, arose the occasion to file a revision for the second time.

        It is no doubt true that the 1st respondent has examined the matter in
detail and expressed the view that subject land is not a non-ryoti one, meaning
thereby, ryoti in nature.  The two principal obstacles, viz., the ground of
delay and nature of the land, stood cleared with the successive orders passed by
the 1st respondent.  Still that is not all.

        The Act and the Rules made thereunder stipulate various conditions, such
as the applicant being in possession of land; the extent of the land held by
him; the state of affairs existing over the land, when the application was made,
in the context of continuous possession.  These aspects need to be verified only
by the 2nd respondent.  Therefore, no exception can be taken to the order under
challenge.  The interests of the petitioners can be protected by restricting the
scope of examination of the matter by the 2nd respondent to the one of
identification of the land and whether ryotwari pattas were granted in respect
of the lands in the immediate neighbourhood of the land, which is the subject-
matter of these proceedings.

        Hence, the writ petition is disposed of, upholding the order dated
04.09.2010, passed by the 1st respondent, but directing that the
2nd respondent shall restrict his consideration of the matter on remand, to the
question of identifying the land, which is the subject-matter of the application
of the petitioners and as to the question whether ryotwari pattas were granted
in respect of the lands in the immediate neighbourhood of the land applied for
by the petitioners and which formed part of erstwhile survey No.3.  This
exercise shall be completed within two months from the date of receipt of a copy
of this order.

        The miscellaneous petition filed in this writ petition also stands
disposed of.

        There shall be no order as to costs.
____________________  
L.NARASIMHA REDDY, J.    
Dated:08.08.2012

Friday, September 7, 2012

On the facts of the present case, when the assessee filed a defective return, and did not rectify the defects which were pointed out by the I.T.O., the assessing officer was bound to treat the return of income as invalid and take further proceedings on the footing that the assessee had failed to furnish the return. The assessing authority could not have proceeded to make ex parte assessment under Section 144 without serving notice under Section 139 (2) or as the case may be under Section 148.


HONOURABLE SRI JUSTICE GODA RAGHURAM AND HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO                        

I.T.T.A.No.34 of 2000

21.08.2012

The Commissioner of Income Tax, Andhra Pradesh-I, Hyderabad.

M/s.Bake Food Products (P) Ltd., Banjara Hills, Hyderabad.

<GIST:

>HEAD NOTE:  

Counsel for Appellant: Sri S.R.Ashok

Senior Standing Counsel for Respondent: Sri V.Srinivas

? Cases referred
[1] (2004) 3 S.C.C. 488

JUDGMENT (per Hon'ble Sri Justice M.S.Ramachandra Rao):  

              This appeal is filed under Section 260 A of the Income Tax Act,
1961 (hereinafter referred to as the "Act") by the Revenue challenging the order
dated 24-04-2000 in I.T.A.No.1699/Hyd/95 (Hyderabad 'A' Bench).
2. The facts giving rise in filing of this appeal are as under:
(a) The respondent/assessee filed its return of income for the assessment year
1986-1987 on 30-06-1986 admitting a loss of Rs.16,27,167/-.  Notice under
Section 143 (2) of the Act was issued fixing the date of hearing on 01-11-1988.
There was no response to this notice.  A detailed letter was issued by the
Assistant Commissioner of Income Tax, Central Circle-III, Hyderabad (the
assessing officer)  on 07-12-1988 to the assessee stating that the return was
not  accompanied by the audited balance sheet and profit and loss account and
sought an explanation from the assessee as to various discrepancies noticed in
the books of accounts by 14.12.1988.  This letter was served on the same date.
The assessee requested a month's time for furnishing the details.  The assessee
was granted time up to 27-12-1988.  Subsequently, the assessee filed another
letter on 27-12-1988 requesting time up to the end of February 1989.  The
assessee later filed another letter on 10-01-1989 requesting time up to 15-02-
1989 on which date it said it would submit the reply to the letter issued on 07-
12-1988.  On 06-02-1989, a representative of the assessee appeared and requested
time up to 13-02-1989, which was granted.  As the assessee had not furnished any
information even after giving of three months time  and as the assessing officer
felt that the assessment was getting barred by limitation by 31-03-1989   vide
order dated 20-03-1989, he completed the assessment based on the information
available on record to the best of his judgment under S.144 of the Act.  He made
various additions on account of the discrepancies as per the provisional account
and the figures shown in the earlier year. He assessed that the net taxable
income of the assessee as Rs.30,50,800/- and  directed the assessee to pay tax
,surcharge and interest  of Rs.27,62,879/-.
(b) The assessee filed an appeal to the Commissioner of Income Tax (Appeals-II),
Hyderabad against the order of assessment dated 20-03-1989 contending that the
assessment made was unjust, that the assessing officer erred in drawing adverse
inference on account of discrepancies, that the additions made to the income of
the assessee were unwarranted and prayed that the additions made be deleted.  It
contended that the audit for the year end of 30-06-1985 is still not completed
on account of closing down the activity group as a whole and that the unit was
seized by the APSFC. It also contended that the Company was dormant during the
year and depreciation was admissible even in the case of a dormant company and
that there was no production and certain minimum expenditure has to be incurred
to maintain the Company.
(c)  After considering the contentions to the parties, the C.I.T. (Appeals-II),
Hyderabad, by order dated 31-08-1995 held that the assessment completed under
Section 144 of the Act by the assessment officer is not in accordance with law
and deserves to be annulled. He relied on a circular No.281, dated 22-09-1980
issued by the C.B.D.T.  Para 27-4 (VI), sub-clause (VI) of which provided as
under:
"Where there is a default in rectifying the defect intimated by the ITO., the
return of income has to be treated as an invalid return and further proceedings
shall have to be taken on the footing that the assessee had failed to furnish
the return.  Thus in a case where the return is furnished voluntarily under
Section 139 (1), the ITO cannot proceed to make ex-parte assessment under
Section 144 without serving a notice under Section 139 (2) or as the case may
be, under Section 148.  Where, however, a defective return was filed in response
to a notice under Section 139 (2) or Section 148, the ITO, may straightaway
proceed to complete the assessment ex-parte under Section 144 or issue a notice
under Section 142 (1)."
 He noticed that the assessee had suo-moto filed a return under Section 139(1)
of the Act on 30.6.1986 claiming a loss of Rs.16,27,167/- , that the appropriate
authority by letter dated 07-12-1988 had informed the assessee that the return
of income so filed is not  accompanied by the audited balance sheet and profit
and loss account and sought an explanation from the assessee as to why the
return should not be treated as invalid return apart from pointing out other
discrepancies therein and asked the assessee to give information and explanation
by 14-12-1988 and that  the assessee did not reply to it and kept on seeking
extension of time. He therefore he held that the assessing authority should have
treated the return of income filed by the assessee as an invalid return as per
Section 139(9) of the Act and the provisions of the Act would then apply as if
the assessee had failed to furnish the return. He held that the assessing
authority ought to have served a notice under Section 139 (2) or as the case may
be under Section 148 as mandated by the above CBDT circular before proceeding
under s.144 of the Act.  He further held that as no notice under Section 139 (2)
or S.148 was issued to the assessee before the completion of the assessment
under Section 144 and the return of income filed by the assessee under Section
139 (1) was defective return, the completion of assessment under Section 144 was
bad in law and accordingly the assessment made had to be annulled. In view of
the  fact the assessment was being annulled, he did not go into the other
contentions of the assessee in regard to validity or otherwise of the different
additions made in the impugned assessment on account of various discrepancies as
it would not serve any useful purpose .
(d) Challenging the said order, the Revenue preferred I.T.A.No.1699/Hyd/95 to
the Income Tax Appellate Tribunal, Hyderabad Bench 'A', Hyderabad.  It contended
that the order of the C.I.T. (Appeals) was erroneous and he ought not to have
annulled the assessment made under Section 144 of the Act.    However, the
I.T.A.T. rejected the said contention relying on the above circular No.281,
dated 22-09-1980 and held that the directions of the C.B.D.T. in the said
circular fully applied to the facts of the case and that the Commissioner
(Appeals) was justified in following the same and dismissed the appeal.
(e) Challenging the said order, the Revenue has filed this appeal.
3. Heard Sri S.R.Ashok, Senior Standing Counsel for the Revenue and Sri
V.Srinivas, learned counsel for the respondent/assessee.
4. Sri S.R.Ashok, learned Senior Standing Counsel for the Revenue, contended
that the C.I.T. (Appeals) and the I.T.A.T.  were wrong in annulling the
assessment made by the assessing officer.  He also contended that the above
circular might be binding on the assessing officer but it was not binding on the
C.I.T. (Appeals) or on the I.T.A.T.  He  also contended that the said circular
was contrary to the provisions of the Act and therefore the orders of the
I.T.A.T. confirming the order of the C.I.T. (Appeals) deserves to be set aside.
5. Per contra, Sri V.Srinivas, learned counsel for the respondent/assessee,
contended that the circular of C.B.D.T. is binding on the assessing officers and
as the said circular was not contrary to any provisions of the Act, the
assessing officer ought to have followed it and the C.I.T. (Appeals) and the
I.T.A.T. did not commit any error in relying on the said circular and in setting
aside the order of the assessing officer.
6. We have considered the submissions of the counsel for the appellant and the
respondent.
7. The assessment which is subject matter of this appeal is for the assessment
year 1986-87.  Section 139 (1) of the Act provides for filing of a return by an
assessee if his total income during the previous year exceeds the maximum amount
which is not chargeable to income tax.  At that relevant time (i.e in 1986-87),
there was  sub-section (2) in Section 139 which provided as follows:
"S.139(2) : In the case of any person who, in the Income Tax Officer's opinion
is assessable under this Act, whether on his own total income or on the total
income of any other person during the previous year, the Income Tax Officer may,
before the end of the relevant assessment year, serve a notice upon him
requiring him to furnish, within thirty days from the date of service of the
notice, a return of his income or the income of such other person during the
previous year, in the prescribed form and verified in the prescribed manner and
setting forth such other particulars as may be prescribed .."
This sub-section (2) in S.139  was omitted by the Direct Tax Laws (Amendment)
Act, 1987 with effect from 01-04-1989. But since the subject matter of the
present case is the assessment made on 20.3.1989 for assessment year 1986-87 ,
we have to consider the effect of sub-section (2) of S.139 and it cannot be
ignored.
8. Section 144 of the Act provides for best judgment assessment of tax by an
assessing officer. For the subject assessment year 1986-87 ,  Section 144 (1)
(a) provided for a best judgment assessment being made by the assessing officer
if an assessee failed to make the return required "by any notice given under sub
section (2) of Section 139"  and has not made a return or revised return under
sub section (4) of sub section (5) of Section 139.  By the Direct Tax Laws
(Amendment) Act,1987 ,w.e.f.1.4.1989,  the words "by any notice given under sub
section (2) of Section 139" in S.144 (1) (a) were substituted by the words "
under sub-section (1) of s.139" . But since this amendment came into force only
with effect from 01-04-1989, the pre-amended provision applied to the present
case (as the subject assessment year is 1986-87) . Therefore  best judgment
assessment can only be made under Section 144 (1) (a)  if an assessee fails to
make the return required by any notice given under sub section (2) of Section
139 and has not made  a return or revised return under sub section (4) or sub
section (5) of that Section.
9. Section 144 also provides for a best judgment assessment to be made under
clauses 1 (b) (which is not relevant for the present case) and under clause 1
(c) thereof.  Section 144 (1)(c) provided that a best judgment assessment can be
made by the assessing officer if the assessee having made a return, failed to
comply with all the terms of a notice issued under Section 143 (2) of the Act.
10. Sri S.R.Ashok, submits that in the present case, since a notice under
Section 143 (2) of the Act has been issued by the assessment officer, the
circular of the C.B.D.T. had no application and the best judgment assessment can
be made invoking S.144 (1) (c) of the Act.   We do not agree with this
submission.

11.    No doubt Section 144 (1) (c) provides for a situation where a best
judgment assessment can be made when the assessee having made a return fails to
comply with all the terms of a notice issued under Section 143 (2).  But the
interplay between S.144(1) (a) and S.144 (1) (c) and the proper course of action
to be followed by an assessing officer before making a best judgment assessment
where a return filed is defective is set out by the above circular .
        Accepting the contention of the Revenue would mean that one has to ignore
s.139(9) (which states that where a return is filed and defects therein are
intimated to the assessee and  he does not rectify them, it is to be treated as
an "invalid return" and provisions of the Act would apply "as if the assessee
had filed to furnish the return"), S.139(2) (as it stood then) (which entitled
the assessing officer to issue notice to the assessee to file a return when he
is of the opinion that the assessee has taxable income) and S.144 (1) (a) (as it
then stood) of the Act. One has to interpret a statute by giving effect to every
provision thereof and in a manner which does not render any provision otiose.
Therefore, in our opinion, the said circular is not contrary to the provisions
of the Act and it correctly guides the assessing officer as to what is to be
done before proceeding to make best judgment assessment when a return filed
suomoto by the assessee is found defective. Moreover, the circular is beneficial
to the assessee as it provides him a further opportunity to give his correct
income details after his earlier return is found to be defective (as he can give
them atleast after receiving the notice U/S.139(2)).

12. It is settled law that said circulars which are issued under Section 119 by
the Central Board of Direct Taxes have to be followed and observed by the
authorities and other persons employed in the execution of the Act. The Supreme
Court in  Commissioner of Customs, Calcutta and others Vs. Indian Oil
Corporation Limited and another1 held as follows:
".......The circulars issued by the CBDT under the Income Tax Act, 1961 and CBEC
under Section 37-B of the Central Excise Act, 1944 have been held to be binding
primarily on the basis of the language of the statutory provisions buttressed by
the need of the adjudicating officers to maintain uniformity in the levy of
tax/duty through out the country."
13.   Having considered the same, we are of the view that the C.B.D.T. circular
is in the nature of a clarification to the assessing authorities that when there
is a default in rectifying a defect in the return as intimated by the I.T.O. by
the assessee, the return of income has to be treated as an invalid return and
further proceedings will have to be taken on the footing that the assessee had
failed to file the return.  The C.B.D.T. has rightly directed that in case where
the return is furnished voluntarily under Section 139 (1), the I.T.O. cannot
proceed to make ex parte  assessment under Section 144 without serving notice
under Section 139 (2) or as the case may be under Section 148.  This circular is
binding on the assessing officer.
14.   On the facts of the present case, when the assessee filed a defective
return, and did not rectify the defects which were pointed out by the I.T.O.,
the assessing officer was bound to treat the return of income as invalid and
take further proceedings on the footing that the assessee had failed to furnish
the return. The assessing authority could not have  proceeded to make ex parte
assessment under Section 144 without serving notice under Section 139 (2) or as
the case may be under Section 148. 
15.    In this view of the matter and in view of the law declared by the Supreme
Court in the above decision, we are of the view that the decision of the
I.T.A.T. confirming the decision of the Commissioner (Appeals) does not warrant
any interference by this Court.  Therefore, we hold that the substantial
questions of law raised in this appeal have to be decided against the Revenue.
16. The appeal fails and is dismissed.  No costs.

__________________________  
JUSTICE GODA RAGHURAM      


_________________________________    
JUSTICE M.S.RAMACHANDRA RAO      
Date: 21-08-2012

"The assignment of a promissory note by the payee is a part of the "cause of action" within the meaning of S.20 (c), C.P.C. and the assignee can sue on it in the Court having jurisdiction where the assignment took place:


THE HONOURABLE SRI JUSTICE N.R.L.NAGESWARA RAO            

SECOND APPEAL NO.598 OF 2011      

24-08-2012

M.R.Venu

Smt.Veluchuri Lakshmi and others

Counsel for the Appellant :      Sri K.G.Krishna Murthy

Counsel for the Respondent:      Sri Ravi Cheemalapati

<Gist :

>Head Note:

? Cases referred:
1.AIR 2005 A.P. 37
2.AIR 1958 A.P. 451
3.1969 An.W.R. 222
4.AIR 1966 A.P. 334
5. 2010 (5) ALT 96 (D.B)
6.AIR 1917 MADRAS 221  

JUDGMENT:-  

        The unsuccessful defendant in O.S.No.119 of 1994 on the file of the Court
of Senior Civil Judge, Vizianagaram is the appellant herein.

02.     The suit was one filed for recovery of a sum of Rs.70,800/- alleging that
the defendant has borrowed a sum of Rs.50,000/- on 06-09-1992 and executed a
promissory note in favour of one Laxmi Narsu who in turn transferred the
promissory note on      06-11-1993 for consideration in favour of the first
plaintiff at Srungavarapu Kota.

03.     The defendant claimed that he did not borrow any amount from the original
holder Laxmi Narsu who is an employee of I.O.B at Chittoor. The defendant
obtained some loan from IOB, Chittoor and at that time the original holder
obtained signatures on blank papers and the suit promissory note might have been
fabricated. The suit is, therefore, not maintainable. He also pleaded that the
court at Vizianagaram has no jurisdiction to try the case.

04.     After considering the evidence on record, the trial court has decreed the
suit and in an appeal the District Judge, Vizianagaram in A.S.No.95 of 2004 has
dismissed the appeal.  Aggrieved by the concurrent judgments of the Courts
below, the present Second Appeal is sought to be filed.


05.     The Second Appeal has been admitted on the following substantial questions
of law.
1. Whether the suit was properly instituted in the Court of the Senior Civil
Judge at Vizianagaram and whether the plaintiff is a holder in due course?
2. Whether the judgments of the Courts below are not proper as the Courts have
no jurisdiction to entertain the suits?

06.     So far as the execution of the promissory note is concerned, there is a
dispute and the defendant has come up with a theory of contributing signatures
on blank papers. But, however, the evidence of PWs.1 and 2 clearly goes to show
that the transaction of lending money is true and PW.2 supports the above
version.  His acquaintance with the original holder of the promissory note is
not in dispute. PW.2 is the scribe of the promissory note and is also the scribe
of the indorsement of transfer. This evidence has been accepted by the Court
below and, therefore, in view of the above circumstances, the question of non-
execution of the promissory note by the defendant cannot be accepted and it is a
question of fact appreciated by the Courts below, which does not call for any
interference.

07.     However, the thrust of the argument of the counsel for the appellant is
that the transfer indorsement for consideration does not create jurisdiction to
the Court at Srungavarapu Kota as no transaction has taken place except the
alleged transfer and as the defendant resides at Chittoor and following the
decision reported in S.S.V.Prasad v. Y. Suresh Kumar1 the suit should have been
dismissed. No doubt, in the above decision, it was held that a transfer
endorsement does not create jurisdiction to the Court.  The learned Judge has
taken into consideration the provisions of Section 20 C.P.C and took into
consideration the provisions of the Negotiable Instruments Act, 1881. Evidently,
according to the learned Judge, the provisions of Sections 68 to 70 of N.I Act
prescribes the place of presentation and if no place is agreed between the
parties, it should be the place where the defendant resides or carries on
business. Evidently, Sections 68 to 70 of N.I.Act deals with presentation of the
negotiable instrument claiming the amount. None of those sections refer to the
jurisdiction of a Court where the suit has to be filed.  Presentation of a
negotiable instrument for honouring or dishonouring is quite different from the
institution of a suit for recovery of the amount due under the negotiable
instrument.  Therefore, the purport under Sections 68 to 70 of the N.I Act
cannot be imported to consider the cause of action under Section 20 of C.P.C
which mandates the procedure for filing of the suits. Having considered the
scope of Section 20(C) of C.P.C, ultimately, the learned Judge found that cause
of action in the larger context has two components, viz.,    (a) existence of a
duty in the defendant towards the plaintiff and its breach; and (b) the damage
or loss arising out of that breach.  Therefore, the scope of cause of action
evidently is from a bundle of facts. It does not start with the right of the
defendant and it starts with the right of the plaintiff in instituting a suit.
In this connection, it is useful to refer to a Division Bench decision of this
Court reported in N.Narayana Murthy v. G.Ganga Raju2 wherein it was held as
under
"Cause of action is a bundle of essential facts which the plaintiff has to prove
in order to sustain his action.  This connotes that both the right to sue and
cause of action are the same and the cause of action is synonymous with the
right to sue."

08.     The above judgment clearly lays down that a cause of action starts with
the right to sue and it is evidently vested with the plaintiff.  In the decision
relied on by the counsel for the appellant in S.S.V.Prasad (1st supra) the
learned Judge has referred to the judgment of this Court reported in
P.S.Kothandarama Gupta v. Sidamsetty Vasant Kumar3, but, differed with the
learned Judge in holding that Section 70 of the N.I Act does not lay the place
of suing. In this connection, the judgment reported in Radhakrishnamurthy v.
Chandrasekhara Rao4  also deals with the situation of this nature and it was
held that a transfer of assignment on promissory note creates cause of action
within whose jurisdiction the transferor endorsement has taken place.
Therefore, the opinion of the two earlier single Judges of this Court is in
favour of holding that the cause of action is created by virtue of the transfer
of the promissory note at a place where it was transferred and particularly for
consideration.



09.     It is to be noted that exception to Section 64 of the N.I.Act is as
follows:-
        "Exception:-- Where a promissory note is payable on demand and is not
payable at a specified place, no presentment is necessary in order to charge the
maker thereof."
        Therefore, the above provision makes it clear that a presentation of the
promissory note is not necessary and when presentation is not necessary, the
provisions of Sections 68 to 70 of N.I.Act can have no application.
Consequently, the jurisdiction has to be decided only under Section.20 C.P.C.

10.     It is to be noted that this Court is a Court established by merger of
Andhra High Court and Hyderabad High Court.  Andhra High Court being one carved
out of Madras High Court, which is a Court of record, all its decisions prior to
establishment of Andhra High Court are binding on High Court of Andhra Pradesh,
subject of course to other rules of doctrine of precedent. [vide decision
reported in Lakshminagar Housing Welfare Association Vs. Syed Sami @ Syed  
Samiuddin(5)].

11.   In this connection, it is useful to refer to the decision of a Division
Bench of Madras High Court reported in Manepalli Magamma and others v. Manepalli
Sathi Raju6 which was referred by the learned single Judge in Radhakrishnamurthy
(4th supra) with whom the learned Judge differed in the decision         1st
supra. Exactly, the similar question arose before the Division Bench of Madras
High Court and the question was whether assignee of a promissory note can sue in
the Court having jurisdiction where his assignment was made. Ultimately, it was
found that assignment is part of cause of action under Section 20 (c ) and
further it was held as under:-
"The expression within 'cause of action', in Section 20 C.P.C must be read with
reference to the suit instituted by the plaintiff; it means plaintiff's cause of
action, and not the cause of action on the documents, sued on irrespective of
the rights of the plaintiff under it, in other words, the cause of action as it
existed when the right to sue on the note arose for the first time."
"The assignment of a promissory note by the payee is a part of the "cause of
action" within the meaning of S.20 (c), C.P.C. and the assignee can sue on it in
the Court having jurisdiction where the assignment took place: Read Vs.Brown [
(1989) 22 Q B D 128."
       
12.     It is to be noted under Section 48 of the N.I.Act a promissory note is
negotiable by the holder by endorsement and delivery thereof. There is not of
much difference with reference to an "assignment" or a "transfer of a promissory
note". They only create the right of the person in whom the endorsement or
assignment was made to recover the money against the executant.

13.     In-fact, it was also held in the above decision that the above
interpretation may cause inconvenience to the defendant in particular cases,
but, it cannot be a factor.  In-fact, the learned Judge in the decision relied
on by the appellant in S.S.V. Prasad (1st supra) referred to the inconvenience
of the defendants in para 33 opining that if the interpretation of right to sue
is given, it will result in disastrous consequences and the defendant will be
subjected to face litigation with a person who is a stranger to him and at a
place where he is neither resident nor undertaken any activity, if the suit is
filed on the strength of a promissory note said to have been endorsed by the
holder.  In view of the judgment of the Division Bench which is binding and
which has been relied on by the other two single Judges, it is to be held that
jurisdiction of the Court to entertain the suit at Srungavarapu Kota on the
basis of the transfer for consideration cannot be doubted.  Therefore, the
appeal is liable to be dismissed.
Accordingly, the Second Appeal is dismissed.  No costs.   Miscellaneous
petitions pending, if any, in this Second Appeal shall stand closed.
_______________________  
N.R.L. NAGESWARA RAO,J    
24-08-2012