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these three appeals by special leave are directed against the order dated september 92004 passed by intellectual property appellate board for shortipab whereby it ordered the removal of appellant 's mark infosys from the register of trade marks in respect of computer stationery computer manuals printed matter for computer instructional and teaching materials computer hardware and peripherals and machine and machine tools.
the appellant is infosys technologies limited.
it was incorporated and registered under the companies act1956 on july 21981 in the name of infosys consultants private limited.
the appellant got the trade mark infosys registered in 1987 in classes 16 and 9 in connection with computer stationery computer manuals printed manual for computer instruction and teaching materials computer hardwares computer interface computer peripherals electronics telex interface and in 1988 in class 7 in connection with machine and machine tools and motors not for land vehicles the particulars with reference to the trade mark registered by the appellant are as follows.
on april 211992the name of the company infosys consultants pvt.
limited was changed to infosys technologies pvt.
ltd and thereafter on june 21992the name was changed to the present name i e.
infosys technologies limited.
the first respondent is jupiter infosys limited.
the first respondent was incorporated and registered in september 1978 under the name of jupiter agencies pvt.
limited.
the name of the first respondent was changed to jupiter infosys p limited in august1995 and now since july2003the name is changed to jupiter international limited.
on october 111996the appellant instituted a suit in the calcutta high court for perpetual injunction inter alia restraining the first respondent from infringing the appellant 's mark infosys by using the mark infosys by itself or in combination with other marks in course of its trade.
the appellant also prayed for an interim order in the suit.
on november 221996the calcutta high court by an ad interim order restrained the first respondent from using the word infosys in any manner in relation to the goods for the time being.
the ad interim order was confirmed on november 291996.
the appellant having come to know of several instances of misuse of mark infosys also filed a writ petition being writ petition no 14214 of 2000 before the calcutta high court inter alia praying that the registrar of companies be restrained from registering the companies bearing the name infosys.
on september 132000the calcutta high court restrained the department of company affairs and registrar of companies from incorporating any company bearing the name infosys without the permission of the appellant.
in january 2001the appellant filed yet another suit before the high court of judicature at madras for permanent injunction restraining the first respondent from offering shares to the public as claimed in the initial public offer ipo using infosys.
the single judge of the madras high court passed an interim restraint order on february 12001 against the first respondent.
the said order was confirmed on may 222001 to remain operative till disposal of suit.
the first respondent then filed three separate applications before the madras high court inter alia under sections 46 and 56 of the trade and merchandise marks act1958.
the 1958 act in o p no 764 of 2001the first respondent prayed for the removal rectification of the entry in the register of trade mark in respect of trade mark no 475269 in class 16 while in the other two applications being o p no 765 of 2001 and o p no 766 of 2001the first respondent prayed for removal rectification of trade mark no 475267 in class 9 and trade mark no 484837 in class 7 respectively.
the appellant opposed these applications on diverse grounds by filing counter affidavits.
on august 122003the madras high court framed the following issues.
a whether the mark applied for registration was used in respect of the goods for which the mark was registered.
b whether the respondent had a bonafide intention to use the mark applied for under section 18 of the trade and merchandise marks act.
cwhether the mark registered in favour of the respondent is a service mark.
dwhether there is a non use of registered trade mark by the respondent for a period of over 5 years and 1 month.
ewhether the registered trade mark is disentitled for protection in a court of law under section 11e of the trade and merchandise marks act.
fwhether the registered trade mark has lost its distinctiveness and is liable to be removed under section 32c.
g whether the respondent has committed fraud while obtaining registration of the mark and.
hto what further relief.
the 1958 act was repealed by the trade marks act1999 for shortthe 1999 act in terms of section 100 of the 1999 act the three petitions filed by the first respondent before the madras high court for rectification removal of registered trade mark nos 475269475267 and 484837 were transferred to the ipab.
some more facts may be noticed.
the appellant filed yet another suit being suit no 2115 of 2002 before delhi high court for infringement of trade mark and passing off against the first respondent.
in that suit the appellant also made an application for grant of temporary injunction.
the vacation judge of the delhi high court on december 272002 passed an order of temporary injunction against the first respondent as follows notice for 24th march2003 before the joint registrar.
heard.
perused the averments made in the suit and application which are duly supported by documents on record.
i am of the opinion that in case ex parte ad interim orders are not granted the relief claimed itself may be rendered infructuous.
accordingly it is directed that pending further consideration of the matter after notice for the next date of hearing the defendants are restrained by themselves their directors employees agents andor others acting on its behalf from using the trade mark corporate name infosys or any other mark name deceptively similar trade mark or colourable imitation thereof as a mark andor corporate name or as part of a mark andor business name in respect of goods andor services for publicity on propaganda on websites and or in domain names in any way whatsoever thereby causing infringement of the registered trade mark infosys of the plaintiff in isolation or in combination with words letters numbers their advertisements as part of their corporate name either in isolation or in goods and services or in or by way of any advertisement publicity campaigns etc.
compliance of order xxxix rule 3 cpc within three days.
the said suit was transferred to the court of the additional district judge tis hazari court delhi.
in that suit an affidavit came to be filed by the first respondent wherein it was stated that the name of the company has been changed from jupiter infosys limited to jupiter international limited and a certificate to that effect has been issued by the registrar of companies kolkata under the companies act1956 and no dispute remains between the parties under the trade mark.
the relevant statement made in the affidavit dated july 142003 we were informed that the date of the affidavit is july 142004 reads as follows that in the meantime the defendant has already changed the trade mark namely jupiter international ltd in place of jupiter infosys ltd the copy of the incorporation on change of name which was issued by the registrar of the companies are being marked and annexed herewith as annexure a that now there is no dispute between the plaintiff and defendant under the trade mark.
based on this affidavit the suit was partially decreed in favour of the appellant on november 102004.
in 2007however the first respondent filed a suit in the court of additional district judge delhi for setting aside the decree dated november 102004 that suit is said to be pending.
the ipab proceeded with the matter in light of the issues that were already framed by the high court and heard the parties.
the ipab in the impugned order while dealing with the plea of limitation raised by the appellant held that the first respondent was the appropriate aggrieved party in the matter in view of the fresh cause of action having arisen to the first respondent on filing of civil suit no 71 of 2001 by the appellant before the madras high court.
the ipab in the impugned order held that the trade mark nos 475269475267 and 484837 have not been used by the appellant for more than a period of five years and one month and the appellant also failed to make out that it had been in manufacturing or trading of the goods for which it had taken registration nos 475269475267 and 484837 consequently the ipab allowed the applications made by the first respondent purportedly under section 461b of the 1958 act and directed the registrar to remove these registrations from the register.
we heard mr akhil sibal learned counsel for the appellant and mr vaibhav gaggar learned counsel for the first respondent at quite some length.
mr akhil sibal learned counsel for the appellant argued that an application for rectification whether under section 46 or section 56 of the 1958 act can only be preferred by a person aggrieved the applicant must not only be a person aggrieved on the date of the application but must continue to remain a person aggrieved until such time as the rectification application is finally decided.
he contended that the first respondent is not shown to have ever traded or intended to trade in any goods covered by the appellant 's registrations under classes 7 and 16 and as such the first respondent is not a person aggrieved with regard to the appellant 's registrations under these two classes.
as regards class 9 he would submit that in view of the affidavit filed by the first respondent on july 142004 in the court of additional district judge delhi the first respondent ceases to be an aggrieved person on the date of consideration of the rectification application.
learned counsel heavily relied upon two decisions of this court 1 hardie trading ltd anr v.
addisons paint chemicals ltd 2003 11 scc 92 2003 indlaw sc 756 and 2 kabushiki kaisha toshiba v tosiba appliances company ors 2008 10 scc 766 2008 indlaw sc 1395.
assailing the finding of the ipab as regards non use by the appellant during the relevant period learned counsel for the appellant argued that the said finding was erroneous on legal as well as factual premise.
he contended that the ipab erred in holding that software was a service and the subject registrations were in relation to goods without considering the wide definition of goods provided under section 2g of the 1958 act.
akhil sibal argued that the ipab committed grave error in relying upon the provisions of the 1999 act and the trade marks rules2002 when these provisions were not applicable as the applications were filed under the 1958 act.
according to him the ipab sought to rely upon computer programming which is a service enumerated in class 42without considering the distinction between a computer programme and computer programming and without noticing the entry computer under class 9 which falls within goods.
learned counsel would submit that in examining the question of non use under section 461bthe ipab failed to consider that the requisite use must be in relation to goods under registration which is extensively defined under section 22b of the 1958 act.
akhil sibal learned counsel also argued that the ipab failed to have regard to the proviso to section 461in terms of which it is open to the registered proprietor to rely upon use of the registered trade mark during the relevant period in relation to goods of the same descriptionin order to resist an application for rectification.
he contended that the ipab failed to apply proper legal tests for determining goods of the same description and had that been done it would be evident that computer software amounts to goods of the same description as computer hardware.
in this regard he relied upon m s eagle potteries.
private ltd v.
m s eagle flask industries pvt.
ltd air 1993 bombay 185 1992 indlaw mum 6327 lever brothers port sunlight ld v.
sunniwite products ld 1949 66 rpc 84.
the ritz hotel v charles of the ritz 1989.
rpc 333 and australian wine importers trade mark.
6 rpc 311.
learned counsel for the appellant also submitted that in any view of the matter the ipab erred in exercising its discretion under section 46 of the 1958 act without taking into consideration the aspect of public interest.
he argued that the ipab ought to have considered whether use of mark infosys by the first respondent on computer hardware would create confusion in the mind of the consumers that they might be led to believe that the said hardware is manufactured by the appellant.
learned counsel thus submitted that the impugned order is unsustainable and liable to be set aside.
on the other hand an objection is raised in the written submissions on behalf of the first respondent and reference was made in support of the objection to seven judge bench decision of this court in l chandrakumar v union of india ors 1997 3 scc 261 1997 indlaw sc 2816 that challenge to the order of ipab directly in the appeal before this court under article 136 of the constitution is barred.
in reply to the arguments of learned counsel for the appellant mr vaibhav gaggar learned counsel for the first respondent strenuously urged that the plea of aggrieved person is a new plea and raised substantially for the first time before this court.
he argued that the appellant has not taken the plea of the first respondent not being a person aggrieved with respect to filing of the applications for rectification before the ipab merely urging the plea that the first respondent has no locus standi in the written submissions before the ipab is not sufficient.
learned counsel would submit that the appellant has for the first time argued before this court that the first respondent is not a person aggrieved andor not capable of maintaining the rectification proceedings with respect to each and every good for which the appellant has been registered since the first respondent has not been registered for all the goods.
vaibhav gaggar rather asserted that the first respondent is a person aggrieved in view of the fact that various suits for infringement have been filed by the appellant against the first respondent and on the date of the applications for rectification removal of the subject registrations from the register the suits were pending.
with reference to the affidavit dated july 142004 filed by the first respondent before the court of additional district judge he submitted that the said affidavit has no relevance in consideration as to whether the first respondent is an aggrieved person as section 46 1 of the 1958 act relates only to the period upto the date of the filing of the rectification application and the rights of the parties crystallized at that stage itself.
in this regard he relied upon a decision of the madras high court in agha hyder hussain anr v.
omar khayyam wineries pvt ltd anr air 1977 mad 166.
1976 indlaw mad 380.
he also placed reliance upon some more decisions viz ritz hotel ltd 1989.
rpc 333philosophy di alberta ferretti 2003 r p c 15.
keystone knitting mills trade mark1929 1 ch.
d 92 and motor terms company pty limited v.
liberty insurance ltd 1967 116 c l r 177 learned counsel for the first respondent further submitted that the affidavit dated july 142004 was not placed by the appellant before the ipab nor any reference of the said affidavit has been made in the written submissions before the ipab and the appellant also did not make any effort to amend the pleadings that the first respondent was not an aggrieved person.
it was contended by mr vaibhav gaggar that even otherwise in view of the fraud perpetrated by the appellant qua the registrations in question the issue as to whether the first respondent had a dispute with the trade mark or not pales into insignificance as the primary duty of the court is to maintain the purity of the register.
he argued that in a case such as the present one since the allegations against the appellant relate to trafficking squatting and non user the scope of person aggrieved has to be enlarged.
learned counsel submitted that the fact that the appellant continues to allege and that stance has not changed in the pleadings in slp as well that the first respondent is an infringer pilfriger defrauder someone who wants to ride on the goodwill of the appellant or someone who wants to mislead the public at large there is no question of the first respondent ceasing to be a person aggrieved at any stage.
vaibhav gaggar learned counsel for the first respondent contended that the appellant is registered as a manufacturer and trader under classes 79 and 16 even though it is a company engaged in software only.
moreover there is nothing on record to indicate linkage with the manufacturing or marketing of the goods for which the appellant is holding registration of subject trade marks.
he vehemently contended that goods in classes 79 and 16 for which the appellant obtained registration were never used in the manner contemplated by the 1958 act for almost 30 years and that would show the mala fide intention of the appellant in having the same registered for the purpose of squatting and trafficking.
learned counsel for the first respondent further argued that infosys is not an invented or a coined word the said word is an abbreviation and combination of the words information system the word infosys has been used by various companies abroad as well as within india prior to incorporation of the appellant itself and hence can not be called an invented word.
in this regard he relied upon a decision of the madras high court in nestle 's products india.
ltd v.
p thankaraja.
anr air 1978 mad 336 he submitted that appellant is primarily in service industry which is unregistrable under the 1958 act and since the appellant is not trading in the goods in respect of which it is registered it can not be said that the mark of the appellant is distinctive of its goods.
in any case learned counsel would submit that the expression infosys is not descriptive expression.
insofar as discretion exercised by ipab in ordering removal of the appellant 's registrations from the register under section 461b of the 1958 act is concerned learned counsel for the first respondent submitted that this court should not overturn the discretion so exercised by the ipab keeping in view the dishonest and fraudulent conduct of the appellant.
lastly he submitted that although no cross objections or cross appeal has been filed the first respondent has some grievance with regard to the order of the ipab in not considering the case set up in the rectification removal applications particularly with regard to section 56 of the 1958 act.
having regard to the order that we intend to make we are not persuaded to accept the objection raised on behalf of the first respondent that present appeal preferred directly before this court from the impugned order passed by the ipab is not maintainable and must be dismissed as such.
pertinently the notice was issued in the petitions for special leave to appeal to the respondents on november 12004 in response to the said notice the first respondent filed counter affidavit before this court on march 112005 wherein no specific objection about invocation of jurisdiction of this court directly has been taken.
in the counter affidavit a very vague objection in the following terms was raised that the present petition apart from being false and misconceived lacks the necessary jurisdiction hence deserves outright rejection.
we are afraid this is hardly an objection about maintainability.
apart from it on september 122005 after hearing both parties special leave was granted by this court.
in the backdrop of these peculiar facts in our view it is not appropriate to relegate the 17 appellant at this distance of time to challenge the impugned order passed by the ipab in writ petition before the high court.
the objection about maintainability of the appeals is accordingly overruled.
the moot question which has been debated before us is whether or not the first respondent is an aggrieved person.
that the first respondent filed composite applications under sections 46 and 56 of the 1958 act for rectification removal of the trade mark infosys registered in classes 79 and 16 is not in dispute.
sections 46 and 56 read as follows s 46 removal from register and imposition of limitations on ground of non use 1 subject to the provisions of section.
47a registered trade mark may be taken off the register in respect of any of the goods in respect of which it is registered on application made in the prescribed manner to a high court or to the registrar by any person aggrieved on the ground either a that the trade mark was registered without any bona fide intention on the part of the applicant for registration that it should be used in relation to those goods by him or in a case to which the provisions of section 45 apply by the company concerned and that there has in fact been no bona fide use of the trade mark in relation to those goods by any proprietor thereof for the time being up to a date one month before the date of the application or b that up to a date one month before the date of the application a continuous period of five years or longer had elapsed during which the trade mark was registered 18 and during which there was no bona fide use thereof in relation to those goods by any proprietor thereof for the time being provided that except where the applicant has been permitted under sub section 3 of section 12 to register an identical or nearly resembling trade mark in respect of the goods in question or where the tribunal is of opinion that he might properly be permitted so to register such a trade mark the tribunal may refuse an application under clause a or clause b in relation to any goods if it is shown that there has been before the relevant date or during the relevant period as the case may be bona fide use of the trade mark by any proprietor thereof for the time being in relation to goods of the same description being goods in respect of which the trade mark is registered.
2 where in relation to any goods in respect of which a trade mark is registered a the circumstances referred to in clause 1 of sub section 1 are shown to exist so far as regards non use of the trade mark in relation to goods to be sold or otherwise traded in in a particular place in india otherwise than for export from indiaor in relation to goods to be exported to a particular market outside india and b a person has been permitted under sub section 3 of section 12 to register an identical or nearly resembling trade mark in respect of those goods under a registration extending to use in relation to goods to be so sold or otherwise traded in or in relation to goods to be so exported or the tribunal is of opinion that he might properly be permitted so to register such a trade mark on application by that person in the prescribed manner to a high court or to the registrar the tribunal may impose on the registration of the first mentioned trade mark such limitations as it thinks proper for securing that that registration shall cease to extend to such use 19 3.
an applicant shall not be entitled to rely for the purpose of clause b of sub section 1 or for the purposes of sub section 2 on any non use of a trade mark which is shown to have been due to special circumstances in the trade and not to any intention to abandon or not to use the trade mark in relation to the goods to which the application relates.
s 56 power to cancel or vary registration and to rectify the register 1.
on application made in the prescribed manner to a high court or to the registrar by any person aggrieved the tribunal may make such order as it may think fit for cancelling or varying the registration of a trade mark on the ground of any contravention or failure to observe a condition entered on the register in relation thereto.
any person aggrieved by the absence or omission from the register of any entry or by any entry made in the register without sufficient cause or by any entry wrongly remaining on the register or by any error or defect in any entry in the register may apply in the prescribed manner to a high court or to the registrar and the tribunal may make such order for making expunging or varying the entry as it may think fit.
the tribunal may in any proceeding under this section decide any question that may be necessary or expedient to decide in connection with the rectification of the register.
the tribunal of its own motion may after giving notice in the prescribed manner to the parties concerned and after giving them an opportunity of being heard make any order referred to in sub section 1 or sub section 2.
any order of the high court rectifying the register shall direct that notice of the rectification shall be served upon the registrar in the prescribed manner who shall upon receipt of such notice rectify the register accordingly.
the power to rectify the register conferred by this section shall include the power to remove a trade mark registered in part a of the register to part b of the register.
the position that emerges from the above provisions is this.
whether the application is under section 46 or under section 56 or a composite application under both sections it is a pre requisite that the applicant must be a person aggrieved.
section 461 of the 1958 act enables any person aggrieved to apply for removal of registered trade mark from the register on the ground of non use as stated in clause a andor clause b to be an aggrieved person under section 46he must be one whose interest is affected in some possible way it must not be a fanciful suggestion of grievance.
a likelihood of some injury or damage to the applicant by such trade mark remaining on the register may meet the test of locus standi.
in kerly 's law of trade marks and trade names 11th edition at page 166the legal position with regard to person aggrieved has been summarized thus the persons who are aggrieved are all persons who are in some way or the other substantially interested in having the mark removed where it is a question of removal from the register including all persons who would be substantially damaged if the mark remained and all trade rivals over whom an advantage was gained by a trader who was getting the benefit of a registered trade mark to which he was not entitled.
we accept the above statement of law.
insofar as section 56 is concerned it provides for varying situations in which the person aggrieved may apply for rectification of the registered trade mark from the register.
although both sections namely sections 46 and 56 require person aggrieved to apply for removal of the registered trade mark from the register or rectification of a trade mark in the register the expression person aggrieved for the purposes of these two sections has different connotations.
the interpretation of the expression person aggrieved occurring in sections 46 and 56 has come up for consideration before this court on more than one occasion.
in hardie trading ltd 2003 indlaw sc 756 2003 11 scc 92this court stated as follows the phrase person aggrieved is a common enough statutory precondition for a valid complaint or appeal.
the phrase has been variously construed depending on the context in which it occurs.
three sections viz sections 4656 and 69 of the act contain the phrase.
section 46 deals with the removal of a registered trade mark from the register on the ground of non use.
this section presupposes that the registration which was validly made is liable to be taken off by subsequent non user.
section 56 on the other hand deals with situations where the initial registration should not have been or was incorrectly made.
the situations covered by this section include a the contravention or failure to observe a condition for registration b the absence of an entry c an entry made without sufficient cause d a wrong entry and e any error or defect in the entry.
such type of actions are commenced for the purity of the register which it is in public interest to maintain.
applications under sections 46 and 56 may be made to the registrar who is competent to grant the relief.
persons aggrieved may also apply for cancellation or varying an entry in the register relating to a certification trade mark to the central government in certain circumstances.
since we are not concerned with a certification trade mark the process for registration of which is entirely different we may exclude the interpretation of the phrase person aggrieved occurring in section 69 from consideration for the purposes of this judgment.
in our opinion the phrase person aggrieved for the purposes of removal on the ground of non use under section 46 has a different connotation from the phrase used in section 56 for cancelling or expunging or varying an entry wrongly made or remaining in the register.
in the latter case the locus standi would be ascertained liberally since it would not only be against the interest of other persons carrying on the same trade but also in the interest of the public to have such wrongful entry removed.
it was in this sense that the house of lords defined person aggrieved in the matter of powell 's trade mark although they were no doubt inserted to prevent officious interference by those who had no interest at all in the register being correct and to exclude a mere common informer it is undoubtedly of public interest that they should not be unduly limited inasmuch as it is a public mischief that there should remain upon the register a mark which ought not to be there and by which many persons may be affected who nevertheless would not be willing to enter upon the risk and expense of litigation.
whenever it can be shown as here that the applicant is in the same trade as the person who has registered the trade mark and wherever the trade mark if remaining on the register would or might limit the legal rights of the applicant so that by reason of the existence of the entry on the register he could not lawfully do that which but for the existence of the mark upon the register he could lawfully do it appears to me he has a locus standi to be heard as a person aggrieved.
but if the ground for rectification is merely based on non user i e under section 46 of the act that is not really on account of any public mischief by way of an incorrect entry.
the non user does not by itself render the entry incorrect but it gives a right to a person whose interest is affected to apply for its removal.
an applicant must therefore show that in some possible way he may be damaged or injured if the trade mark is allowed to stand and by possible i mean possible in a practical sense and not merely in a fantastic view.
all cases of this kind where the original registration is not illegal or improper ought to be considered as questions of common sense to a certain extent at any rate and i think the applicants ought to show something approaching a sufficient or proper reason for applying to have the trade mark expunged.
it certainly is not sufficient reason that they are at loggerheads with the respondents or desire in some way to injure them.
addisons application was one under section 46 and the test to determine whether the applicant was a person aggrieved within the meaning of that section should have been the one laid down by romer j in wright case and not the one propounded by the house of lords in the matter of powell 's trade mark.
the high court and the joint registrar fell into error in not drawing this distinction.
however it is not necessary to dilate on this aspect of the matter as the appellant has really argued on the second and third aspects of section 46 viz the alleged non use of the trade marks by hardie and special circumstances.
in the case of hardie trading ltd 2003 indlaw sc 756 1this court approved the test applied by romer j in the royal baking powder company v wright crossley and co 1898.
15 rpc 677which has been reproduced in the report.
we respectfully agree.
hardie trading ltd 2003 indlaw sc 756 1 has been followed by this court in a recent decision in the case of kabushiki kaisha toshiba 2008 10 scc 766 2008 indlaw sc 1395.
this court stated that section 46 speaks for private interest while section 56 speaks of a public interest.
it is true that the appellant in opposition to the applications for removal rectification of trade mark did not specifically challenge in its counter affidavits the locus standi of the first respondent to be heard as a person aggrieved.
obviously in the absence of any specific objection by the appellant to that effect no specific issue was framed by the high court whether the applicant was an aggrieved person.
the applications having been transferred to the ipab in terms of section 100 of the 1999 act the ipab examined the matter in light of the issues that were framed by the high court although in the written submissions before it the objection was raised that the first respondent has ceased to have locus standi in view of the subsequent events particularly change of the name of the first respondent from jupiter infosys ltd to jupiter international ltd the question is whether in these circumstances it was incumbent upon the ipab to consider and satisfy itself about the locus standi of the first respondent to be heard as a person aggrieved.
in our considered view it was.
in the first place when the first respondent applied for rectification removal in respect of three registrations in classes 79 and 16it must have shown in respect of each of them that it is a person aggrieved and the ipab must have separately considered in respect of each registration the locus standi of the first respondent as the considerations for each entry might not have been common.
secondly and more importantly during the pendency of the applications certain events had taken place which had some bearing on the question of locus standi of the first respondent insofar as invocation of section 46 1 of the 1958 act is concerned.
in the affidavit filed by the first respondent on july 142004 before the court of additional district judge delhi an unequivocal and categorical statement has been made that now there is no dispute between the plaintiff appellant herein and defendant first respondent herein under the trade mark and that defendant has already changed the trade mark namely jupiter international ltd in place of jupiter infosys ltd in terms of section 461not only that the applicant has to show that he is an aggrieved person as his interest is being affected but the ipab must also be satisfied before it directs the removal of registered trade mark that the applicant is an aggrieved person before it invokes the power in directing the removal of the 26 registered trade mark.
this is so because the pre requisite for exercise of power under section 461 is that the applicant is a person aggrieved.
the question then arises whether it is sufficient for the applicant to show that he is a person aggrieved when he makes his application or he must continue to remain a person aggrieved until such time as the rectification removal application is finally decided.
in our view the grievance of the applicant when he invokes section 461 must not only be taken to have existed on the date of making application but must continue to exist when such application is decided.
if during the pendency of such application the applicant 's cause of complaint does not survive or his grievance does not subsist due to his own action or the applicant has waived his right or he has lost his interest for any other reason there may not be any justification for rectification as the registered trade mark can not be said to operate prejudicially to his interest.
in re apollinaris company 's trade marks while dealing with this aspect kekemich j stated because that is a remedy given to the person aggrieved through the interposition of the court for the benefit of the 14 1891 2 ch 186 27 applicant and if at the date of the trial he has no cause of complaint it seems to be monstrous to suppose that the court will rectify the register at his instance when it can do him no good to rectify and when the retention on the register can do him no harm merely because at the date of his application he may have had some grievance.
we concur with the above statement.
in the circumstances we are satisfied that the applications made by the first respondent for rectification removal of the subject trade marks from the register need to be considered afresh by the ipab in accordance with law and the observations made above.
since the first respondent has also grievance in connection with the impugned order particularly with regard to non consideration of its case under section 56 of the 1958 act we refrain from going into the merits of the diverse contentions raised before us and leave the parties to agitate these contentions before the ipab.
in view of the above these appeals are allowed in part and the impugned order dated september 92004 is set aside.
the applications being tra nos 25 to 27 of 2003 op nos 764 to 766 of 2001 are restored to the file of intellectual property appellate board chennai for hearing and disposal afresh in accordance with law.
the parties shall bear their own costs.
appeals allowed.
| FACTS
the appellant is infosys technologies limited.
it was incorporated and registered under the companies act,1956 on july 2,1981 in the name of infosys consultants private limited.
the appellant got the trade mark 'infosys' registered in 1987 in classes 16 and 9 in connection with computer stationery,computer manuals,printed manual for computer instruction and teaching materials; computer hardwares,computer interface,computer peripherals,electronics telex interface and in 1988 in class 7 in connection with machine and machine tools and motors (not for land vehicles).
on april 21,1992,the name of the company infosys consultants pvt.limited was changed to infosys technologies pvt.ltd.and thereafter on june 2,1992,the name was changed to the present name,i.e.infosys technologies limited.
the first respondent is jupiter infosys limited.
the first respondent was incorporated and registered in september 1978 under the name of jupiter agencies pvt.limited.
the name of the first respondent was changed to jupiter infosys (p) limited in august,1995 and now since july,2003,the name is changed to jupiter international limited.
on october 11,1996,the appellant instituted a suit in the calcutta high court for perpetual injunction,inter alia,restraining the first respondent from infringing the appellant's mark 'infosys' by using the mark 'infosys' by itself or in combination with other marks in course of its trade.
the appellant also prayed for an interim order in the suit.
on november 22,1996,the calcutta high court by an ad-interim order restrained the first respondent from using the word 'infosys' in any manner in relation to the goods for the time being.
the ad-interim order was confirmed on november 29,1996.
the appellant having come to know of several instances of misuse of mark 'infosys' also filed a writ petition before the calcutta high court,inter alia,praying that the registrar of companies be restrained from registering the companies bearing the name 'infosys'.
on september 13,2000,the calcutta high court restrained the department of company affairs and registrar of companies from incorporating any company bearing the name 'infosys' without the permission of the appellant.
in january 2001,the appellant filed yet another suit before the high court of judicature at madras for permanent injunction restraining the first respondent from offering shares to the public as claimed in the initial public offer (ipo) using 'infosys'.
the first respondent then filed three separate applications before the madras high court,inter alia,under sections 46 and 56 of the trade and merchandise marks act,1958.
the first respondent prayed for the removal/rectification of the entry in the register of trade mark in respect of trade mark no.475269 in class 16 while in the other two applications being,the first respondent prayed for removal/rectification of trade mark no.475267 in class 9 and trade mark no.484837 in class 7 respectively.
ARGUMENT
assailing the finding of the ipab as regards non-use by the appellant during the relevant period,learned counsel for the appellant argued that the said finding was erroneous on legal as well as factual premise.
he contended that the ipab erred in holding that software was a 'service' and the subject registrations were in relation to goods without considering the wide definition of 'goods' provided under section 2(g) of the 1958 act.
mr.akhil sibal argued that the ipab committed grave error in relying upon the provisions of the 1999 act and the trade marks rules,2002 when these provisions were not applicable as the applications were filed under the 1958 act.
the ipab sought to rely upon 'computer programming' which is a 'service' enumerated in class 42,without considering the distinction between a 'computer programme' and 'computer programming' and without noticing the entry 'computer' under class 9 which falls within 'goods'.
learned counsel would submit that in examining the question of non-use under section 46(1)(b),the ipab failed to consider that the requisite use must be 'in relation to goods' under registration,which is extensively defined under section 2(2)(b) of the 1958 act.
the plea of 'aggrieved person' is a new plea and raised substantially for the first time before this court.
he argued that the appellant has not taken the plea of the first respondent not being a 'person aggrieved' with respect to filing of the applications for rectification before the ipab; merely urging the plea that the first respondent has no locus standi in the written submissions before the ipab is not sufficient.
learned counsel would submit that the appellant has,for the first time,argued before this court that the first respondent is not a person aggrieved and/or not capable of maintaining the rectification proceedings with respect to each and every good for which the appellant has been registered since the first respondent has not been registered for all the goods.
ISSUE
(a) whether the mark applied for registration was used in respect of the goods for which the mark was registered?
(b) whether the respondent had a bonafide intention to use the mark applied for under section 18 of the trade and merchandise marks act?
(c) whether the mark registered in favour of the respondent is a service mark? (d) whether there is a non use of registered trade mark by the respondent for a period of over 5 years and 1 month.
(e) whether the registered trade mark is disentitled for protection in a court of law under section 11(e) of the trade and merchandise marks act?
(f) whether the registered trade mark has lost its distinctiveness and is liable to be removed under section 32(c)?
(g) whether the respondent has committed fraud while obtaining registration of the mark?
(h)to what further relief?
ANALYSIS
whether the application is under section 46 or under section 56 or a composite application under both sections,it is a pre-requisite that the applicant must be a person aggrieved.
section 46(1) of the 1958 act enables any person aggrieved to apply for removal of registered trade mark from the register on the ground of non use as stated in clause (a) and/or clause (b).
to be an aggrieved person under section 46,he must be one whose interest is affected in some possible way; it must not be a fanciful suggestion of grievance.
a likelihood of some injury or damage to the applicant by such trade mark remaining on the register may meet the test of locus standi.
in kerly's law of trade marks and trade names (11th edition) at page 166,the legal position with regard to 'person aggrieved' has been summarized thus the persons who are aggrieved are all persons who are in some way or the other substantially interested in having the mark removed where it is a question of removal from the register; including all persons who would be substantially damaged if the mark remained, and all trade rivals over whom an advantage was gained by a trader who was getting the benefit of a registered trade mark to which he was not entitled.
the court accept the above statement of law.
sections 46 and 56 require 'person aggrieved' to apply for removal of the registered trade mark from the register or rectification of a trade mark in the register,the expression 'person aggrieved' for the purposes of these two sections has different connotations.
in hardie trading ltd 2003 indlaw sc 756.(2003) 11 scc 92),this court stated that the phrase "person aggrieved" is a common enough statutory precondition for a valid complaint or appeal.
the phrase has been variously construed depending on the context in which it occurs.
three sections viz.sections 46,56 and 69 of the act contain the phrase.
section 46 deals with the removal of a registered trade mark from the register on the ground of non-use.
this section presupposes that the registration which was validly made is liable to be taken off by subsequent non-user.
section 56 on the other hand deals with situations where the initial registration should not have been or was incorrectly made.
but if the ground for rectification is merely based on non-user i.e.under section 46 of the act,that is not really on account of any public mischief by way of an incorrect entry.
the non-user does not by itself render the entry incorrect but it gives a right to a person whose interest is affected to apply for its removal.
an applicant must therefore show that in some possible way he may be damaged or injured if the trade mark is allowed to stand.
addisons' application was one under section 46 and the test to determine whether the applicant was a "person aggrieved" within the meaning of that section should have been the one laid down by romer,j.in wright case and not the one propounded by the house of lords in the matter of powell's trade mark.
in a recent decision in the case of kabushiki kaisha toshiba (2008) 10 scc 766) 2008 indlaw sc 1395, this court stated that section 46 speaks for private interest while section 56 speaks of a public interest.
in the first place,when the first respondent applied for rectification/removal in respect of three registrations in classes 7,9 and 16,it must have shown in respect of each of them that it is a 'person aggrieved' and the ipab must have separately considered in respect of each registration the locus standi of the first respondent as the considerations for each entry might not have been common.
during the pendency of the applications,certain events had taken place which had some bearing on the question of locus standi of the first respondent insofar as invocation of section 46 (1) of the 1958 act is concerned.
in terms of section 46(1),not only that the applicant has to show that he is an aggrieved person as his interest is being affected but the ipab must also be satisfied,before it directs the removal of registered trade mark,that the applicant is an aggrieved person before it invokes the power in directing the removal of the 26 registered trade mark.
this is so because the pre-requisite for exercise of power under section 46(1) is that the applicant is a person aggrieved.
in the circumstances, the court was satisfied that the applications made by the first respondent for rectification/removal of the subject trade marks from the register need to be considered afresh by the ipab in accordance with law and the observations made above.
since the first respondent has also grievance in connection with the impugned order particularly with regard to non-consideration of its case under section 56 of the 1958 act, the court refrained from going into the merits of the diverse contentions raised before us and leave the parties to agitate these contentions before the ipab.
STATUTE
s.46 of the trade and merchandise marks act - removal from register and imposition of limitations on ground of non-use.
s.56 of the trade and merchandise marks act -power to cancel or vary registration and to rectify the register.
| FACTS
the appellant is infosys technologies limited.
it was incorporated and registered under the companies act,1956 on july 2,1981 in the name of infosys consultants private limited.
the appellant got the trade mark 'infosys' registered in 1987 in classes 16 and 9 in connection with computer stationery,computer manuals,printed manual for computer instruction and teaching materials; computer hardwares,computer interface,computer peripherals,electronics telex interface and in 1988 in class 7 in connection with machine and machine tools and motors (not for land vehicles).
on april 21,1992,the name of the company infosys consultants pvt.limited was changed to infosys technologies pvt.ltd.and thereafter on june 2,1992,the name was changed to the present name,i.e.infosys technologies limited.
the first respondent is jupiter infosys limited.
the first respondent was incorporated and registered in september 1978 under the name of jupiter agencies pvt.limited.
the name of the first respondent was changed to jupiter infosys (p) limited in august,1995 and now since july,2003,the name is changed to jupiter international limited.
on october 11,1996,the appellant instituted a suit in the calcutta high court for perpetual injunction,inter alia,restraining the first respondent from infringing the appellant's mark 'infosys' by using the mark 'infosys' by itself or in combination with other marks in course of its trade.
the appellant also prayed for an interim order in the suit.
on november 22,1996,the calcutta high court by an ad-interim order restrained the first respondent from using the word 'infosys' in any manner in relation to the goods for the time being.
the ad-interim order was confirmed on november 29,1996.
the appellant having come to know of several instances of misuse of mark 'infosys' also filed a writ petition before the calcutta high court,inter alia,praying that the registrar of companies be restrained from registering the companies bearing the name 'infosys'.
on september 13,2000,the calcutta high court restrained the department of company affairs and registrar of companies from incorporating any company bearing the name 'infosys' without the permission of the appellant.
in january 2001,the appellant filed yet another suit before the high court of judicature at madras for permanent injunction restraining the first respondent from offering shares to the public as claimed in the initial public offer (ipo) using 'infosys'.
the first respondent then filed three separate applications before the madras high court,inter alia,under sections 46 and 56 of the trade and merchandise marks act,1958.
the first respondent prayed for the removal/rectification of the entry in the register of trade mark in respect of trade mark no.475269 in class 16 while in the other two applications being,the first respondent prayed for removal/rectification of trade mark no.475267 in class 9 and trade mark no.484837 in class 7 respectively.
ARGUMENT
assailing the finding of the ipab as regards non-use by the appellant during the relevant period,learned counsel for the appellant argued that the said finding was erroneous on legal as well as factual premise.
he contended that the ipab erred in holding that software was a 'service' and the subject registrations were in relation to goods without considering the wide definition of 'goods' provided under section 2(g) of the 1958 act.
mr.akhil sibal argued that the ipab committed grave error in relying upon the provisions of the 1999 act and the trade marks rules,2002 when these provisions were not applicable as the applications were filed under the 1958 act.
the ipab sought to rely upon 'computer programming' which is a 'service' enumerated in class 42,without considering the distinction between a 'computer programme' and 'computer programming' and without noticing the entry 'computer' under class 9 which falls within 'goods'.
learned counsel would submit that in examining the question of non-use under section 46(1)(b),the ipab failed to consider that the requisite use must be 'in relation to goods' under registration,which is extensively defined under section 2(2)(b) of the 1958 act.
the plea of 'aggrieved person' is a new plea and raised substantially for the first time before this court.
he argued that the appellant has not taken the plea of the first respondent not being a 'person aggrieved' with respect to filing of the applications for rectification before the ipab; merely urging the plea that the first respondent has no locus standi in the written submissions before the ipab is not sufficient.
learned counsel would submit that the appellant has,for the first time,argued before this court that the first respondent is not a person aggrieved and/or not capable of maintaining the rectification proceedings with respect to each and every good for which the appellant has been registered since the first respondent has not been registered for all the goods.
ISSUE
(a) whether the mark applied for registration was used in respect of the goods for which the mark was registered?
(b) whether the respondent had a bonafide intention to use the mark applied for under section 18 of the trade and merchandise marks act?
(c) whether the mark registered in favour of the respondent is a service mark? (d) whether there is a non use of registered trade mark by the respondent for a period of over 5 years and 1 month.
(e) whether the registered trade mark is disentitled for protection in a court of law under section 11(e) of the trade and merchandise marks act?
(f) whether the registered trade mark has lost its distinctiveness and is liable to be removed under section 32(c)?
(g) whether the respondent has committed fraud while obtaining registration of the mark?
(h)to what further relief?
ANALYSIS
whether the application is under section 46 or under section 56 or a composite application under both sections,it is a pre-requisite that the applicant must be a person aggrieved.
section 46(1) of the 1958 act enables any person aggrieved to apply for removal of registered trade mark from the register on the ground of non use as stated in clause (a) and/or clause (b).
to be an aggrieved person under section 46,he must be one whose interest is affected in some possible way; it must not be a fanciful suggestion of grievance.
a likelihood of some injury or damage to the applicant by such trade mark remaining on the register may meet the test of locus standi.
in kerly's law of trade marks and trade names (11th edition) at page 166,the legal position with regard to 'person aggrieved' has been summarized thus the persons who are aggrieved are all persons who are in some way or the other substantially interested in having the mark removed where it is a question of removal from the register; including all persons who would be substantially damaged if the mark remained, and all trade rivals over whom an advantage was gained by a trader who was getting the benefit of a registered trade mark to which he was not entitled.
the court accept the above statement of law.
sections 46 and 56 require 'person aggrieved' to apply for removal of the registered trade mark from the register or rectification of a trade mark in the register,the expression 'person aggrieved' for the purposes of these two sections has different connotations.
in hardie trading ltd 2003 indlaw sc 756.(2003) 11 scc 92),this court stated that the phrase "person aggrieved" is a common enough statutory precondition for a valid complaint or appeal.
the phrase has been variously construed depending on the context in which it occurs.
three sections viz.sections 46,56 and 69 of the act contain the phrase.
section 46 deals with the removal of a registered trade mark from the register on the ground of non-use.
this section presupposes that the registration which was validly made is liable to be taken off by subsequent non-user.
section 56 on the other hand deals with situations where the initial registration should not have been or was incorrectly made.
but if the ground for rectification is merely based on non-user i.e.under section 46 of the act,that is not really on account of any public mischief by way of an incorrect entry.
the non-user does not by itself render the entry incorrect but it gives a right to a person whose interest is affected to apply for its removal.
an applicant must therefore show that in some possible way he may be damaged or injured if the trade mark is allowed to stand.
addisons' application was one under section 46 and the test to determine whether the applicant was a "person aggrieved" within the meaning of that section should have been the one laid down by romer,j.in wright case and not the one propounded by the house of lords in the matter of powell's trade mark.
in a recent decision in the case of kabushiki kaisha toshiba (2008) 10 scc 766) 2008 indlaw sc 1395, this court stated that section 46 speaks for private interest while section 56 speaks of a public interest.
in the first place,when the first respondent applied for rectification/removal in respect of three registrations in classes 7,9 and 16,it must have shown in respect of each of them that it is a 'person aggrieved' and the ipab must have separately considered in respect of each registration the locus standi of the first respondent as the considerations for each entry might not have been common.
during the pendency of the applications,certain events had taken place which had some bearing on the question of locus standi of the first respondent insofar as invocation of section 46 (1) of the 1958 act is concerned.
in terms of section 46(1),not only that the applicant has to show that he is an aggrieved person as his interest is being affected but the ipab must also be satisfied,before it directs the removal of registered trade mark,that the applicant is an aggrieved person before it invokes the power in directing the removal of the 26 registered trade mark.
this is so because the pre-requisite for exercise of power under section 46(1) is that the applicant is a person aggrieved.
in the circumstances, the court was satisfied that the applications made by the first respondent for rectification/removal of the subject trade marks from the register need to be considered afresh by the ipab in accordance with law and the observations made above.
since the first respondent has also grievance in connection with the impugned order particularly with regard to non-consideration of its case under section 56 of the 1958 act, the court refrained from going into the merits of the diverse contentions raised before us and leave the parties to agitate these contentions before the ipab.
STATUTE
s.46 of the trade and merchandise marks act - removal from register and imposition of limitations on ground of non-use.
s.56 of the trade and merchandise marks act -power to cancel or vary registration and to rectify the register.
|
leave granted in slp crl.
no 37372014.
these appeals are preferred by four accused against the common judgment of the high court of chhattisgarh at bilaspur confirming the judgment of the additional sessions judge bemetara district durg convicting the appellants u s 302 read with ss 34 and 120b of the indian penal code hereinafter referred to as ipc and sentencing each of them to undergo imprisonment for life with a fine of rs 1000 and in default to undergo additional rigorous imprisonment for three months.
these appeals have been taken up for disposal together since they arise from a common judgment of the high court deciding the appeals of the accused.
the appellant raju.
devendra choubey accused no 4 has filed criminal appeal no 822 of 2012 the appellant mahesh accused no 3 has filed criminal appeal no 867 of 2013 the appellant beenu.
chandra prakash accused no 2 has filed criminal appeal no 589 of 2014 the appellant smt.
shashi tripathi accused no 1 has filed criminal appeal arising out of special leave petition criminal no 3737 of 2014.
pw 1 dr.
sharda prasad tripathi is the husband of accused shashi tripathi.
on 25 11 2003when pw 1 dr.
sharda prasad tripathi came home from his clinic found that his daughter in law bhavna tripathi has been murdered.
he lodged a first information report f i r on 25 11 2003 at about 2045 hours.
the crime was registered.
he deposed in court that on 25 11 2003when he returned home he found servant anil kumar pw 21 was weeping.
when he went inside he found his daughter in law bhavna and wife shashi lying in the courtyard.
bhavna was dead.
shashi was unconscious.
there were numerous injuries including incised wounds on bhavna none on shashi.
after registration of the crime inquest was conducted over the dead body of bhavna on 26 11 2003 post mortem was conducted by dr naresh tiwari and dr m deodhar who gave their report which is marked as exhibit p18 spot map was prepared by the inquiry officer io bloodstained cloth of accused shashi tripathi was taken into possession along with broken bangles bloodstained cement mortar and plain cement mortar were also taken into possession.
shashi tripathi mahesh and binu.
chandra prakash were arrested on 29 11 2003 a bloodstained knife was taken into possession.
the accused raju.
devendra choubey was taken into custody on 22 12 2003 and a suzuki motorcycle was also taken into possession.
a test identification was conducted by the executive magistrate in the sub jail bemetara on 13 12 2003 a similar identification parade of raju.
devendra choubey was conducted on 26 12 2003 after his arrest.
a sealed packet containing hair found in the grip of the deceased and another sealed packet containing bloodstained cloth of the deceased were taken into possession vide exhibit p35.
after committal the trial court framed charges u s 302 read with ss 34 and 120b of the ipc the prosecution examined 32 witnesses.
no defence witness was examined after the statements of the accused were recorded u s 313 of the criminal procedure code1973.
according to the prosecution the accused shashi tripathi is the step mother in law of deceased bhavna tripathi.
bhavna was married to her step son jitendra kumar in july2003 shashi tripathi used to be annoyed with bhavna tripathi on account of some domestic dispute.
she engaged the other accused for murdering bhavna.
bhavna was murdered on 25 11 2003 at about 1830 hours in the house where she resided with shashi tripathi.
there is no dispute that bhavna 's death is homicidal.
dr m deodhar who conducted the postmortem opined that cause of her death was neurogenic and hemorrhagic shock.
the injuries found on person of the deceased were as follows external injuries 1 incised wound on left scapular region of size 3 cm x 1 cm 2 incised wound on left scapular region of size 4 cm x 1 cm.
x 1 cm 3.
one incised wound on left auxiliary region on the posterior auxiliary region of size 3 cm x 2 cm x 3 cm.
4 incised wound on lower costal region left of size.
3 cm x 2 cm x 1 cm 5 incised wound on lower costal region right side on right epigestic region of size 3 cm.
x 3 cm with punctured wound 6 incised wound over right costal region of size 3 cm x 2 cm x 1 cm.
7 incised wound on right supra mammary region near middle of size 4 cm x 1 cm x 1 cm 8 incised wound on right supra mammary region lateral aspect of size 3 cm x 1 cm x 1 cm 9 incised wound on radial aspect of left forearm near wrist joint of size 2.
cm x cm x cm 10 incised wound on forearm left hand radial side dorsal aspect on lower 23rd region 11 incised wound on left forearm middle l3rd region radial side and posterior aspect of size 2.
x 1 cm x 1 cm 12 incised wound on left hand dorsal aspect on 2 nd and 3rd metacarpal region of size 2 cm.
x cm.
x 1 cm 13 incised wound on ulna region of left hand on lower 13rd region of size 1 cm.
x cm x 1 cm and 14 incised wound over left side of neck on anterior triangle of size 2 cm.
x 1 cm.
internal injuries brain membrane pale lungs trachea pale punctured wound on right and left lungs of size 2 cm x 1 cm2 cm and 1 cm.
x 3 cm lobe was cut and there was 3 cm punctured wound.
incised wound was also present on the right lobe of size 3 cm x 13 cm x 3 cm.
liver kidney and spleen were pale.
the deceased was carrying fetus of two months.
the sole eyewitness was a boy of 13 years of age anil kumar pw 21who worked as a servant with the family.
shashi tripathi had brought him home from bilaspur.
he participated in the identification parade which was held in sub jail bemetara and identified the accused persons in the court by touching them.
we have carefully examined the manner in which the identification parade was conducted and the manner in which the boy anil kumar pw 21 identified the accused in court and we have no reason to doubt the identification of the accused which assumes importance in this case since the boy did not know the accused before the incident.
it is anil kumar pw 21who first informed the head of the family dr sharda prasad tripathi pw 1the complainant about the incident when he came home after closing his clinic.
he deposed before the court that shashi didi accused brought him to village jevra from bilaspur.
he lived in the house of shashi didi.
he ate his food there and studied in a school.
he deposed that doctor sahab is her husband and shivendra and jitendra are her sons.
jitendra is her step son and the deceased bhavna is the wife of jitendra.
she resided with shashi didi.
jitendra is a doctor resided and practiced at khamaria whereas his wife resided at jevra.
his brother shivendra studies at calcutta.
he referred to bhavna as bhabhi.
he stated that shashi didi and bhavna sometimes used to quarrel.
about the assault he deposed that devendra caught bhavna and chandra prakash attacked her with knife 3 to 4 times and she fell down.
the incident occurred in the courtyard and shashi didi was present in the passage.
mahesh the fourth accused was standing outside the house.
after the assault chandra prakash went to the tv room where shashi didi had kept some money in a rubber band on the table.
the accused chandra prakash had threatened him not to disclose anything about the incident to anyone.
thereafter all the three accused fled from there.
he further deposed that shashi didi took him upstairs to the terrace and asked him not to disclose the truth to anyone but to say that thieves came into the house and committed the crime.
shashi didi thereafter started shouting.
then she lay down on the courtyard near bhavna bhabhi.
this deposition clearly implicates accused nos 12 and 4 the picture that emerges is that shashi tripathi caused bhavna to be killed and for this purpose engaged chandra prakash accused no 2 and raju.
devendra choubey accused no 4 by paying them money.
she also seems to have had a scuffle with bhavna which is apparent from the fact that her hair was found in the grip of the deceased during investigation.
it is obvious that accused nos 2 and 4 did not enter the house to commit a robbery and had a single mission namely to kill bhavana.
there is no evidence that they had any previous animosity with the deceased and appeared to have acted as contract killers.
the prosecution has found it difficult to pinpoint the motive but shashi tripathi 's husband dr sharda prasad tripathi pw 1 deposed before the court that she tried to create a hindrance in the marriage of his son jitendra since she wanted her daughter abhilasha to marry him however he went ahead with the marriage of jitendra to bhavna whereupon shashi tripathi remained silent.
the credibility of the evidence of anil kumar pw 21 was attacked by the learned counsel for the appellants who submitted that the boy is a tutored witness who has been influenced by the police with whom he spent a lot of time.
in fact he even came to the court in the company of a police constable after being served summons at allahabad.
the learned counsel submitted that the evidence of a child witness must be carefully scrutinized before acceptance since a child can be easy prey for tutoring and the court must insist on corroboration from other evidence.
on a careful perusal of the deposition of this child witness we have not found any reason why he would have lied.
he was brought to the house by shashi tripathi accusedwho apparently took care of him and sent to school and gave him food and residence.
he had no grouse against her neither any ulterior motive in identifying the accused who were not acquainted to him.
there was no reason for the sole eye witness anil pw 21 to implicate anybody falsely.
merely because he has been some time in the company of the police at the police station his testimony can not be discarded as untrue.
the incident occurred within the four walls of the house of the accused shashi tripathi and the only witness was the boy anil.
pw 21 his statement that the accused chandra prakash attacked the deceased is corroborated by the recovery of knife from chandra prakash.
it must be remembered that the boy comes from a rural back ground and was 13 years of age when the incident occurred.
his presence in the house is entirely natural and we have no reason to discard his testimony.
the learned counsel for the appellants forcefully attacked the conviction of the other accused viz mahesh chandra prakash and devendra kumar who admittedly were not known to the child witness anil kumar.
it was submitted that the test identification parade were delayed and the identification of these accused by the witness in court was not reliable.
it is not possible for us to accept this contention.
mahesh and chandra prakash were arrested on 29 11 2003their identification parade was conducted on 13 12 2003 within a fortnight or so.
the accused devendra kumar was arrested on 22 12 2003 and his identification parade was conducted on 26 12 2003 within four days there is no evidence on record to show that the child witness had an opportunity to see and study the features of the accused between their arrest and test identification parade to enable a tutored identification.
in any case the period between the arrest and the identification parade was not large enough to constitute inordinate delay.
the learned counsel for the appellants relied upon the judgment of this court in budhsen and anr.
state of u p 1970 2 scc 128 1970 indlaw sc 136 where this court made the following observations 7 now facts which establish the identity of an accused person are relevant u s 9 of the indian evidence act.
as a general rule the substantive evidence of a witness is a statement made in court.
the evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character.
the evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances he came to pick out the particular accused person and the details of the part which the accused played in the crime in question with reasonable particularity.
the purpose of a prior test identification therefore seems to be to test and strengthen the trustworthiness of that evidence.
it is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them in the form of earlier identification proceeding.
there may however be exceptions to this general rule when for example the court is impressed by a particular witness on whose testimony it can safely rely without such or other corroboration.
the identification parades belong to the investigation stage.
they are generally held during the course of investigation with the primary object of enabling the witnesses to identify persons concerned in the offence who were not previously known to them.
this serves to satisfy the investigating officers of the bona fides of the prosecution witnesses and also to furnish evidence to corroborate their testimony in court.
identification proceedings in their legal effect amount simply to this that certain persons are brought to jail or some other place and make statements either express or implied that certain individuals whom they point out are persons whom they recognise as having been concerned in the crime.
they do not constitute substantive evidence.
these parades are of the essentially governed by section 162criminal procedure code.
it is for this reason that the identification parades in this case seem to have been held under the supervision of a magistrate.
keeping in view the purpose of identification parades the magistrates holding them are expected to take all possible precautions to eliminate any suspicion of unfairness and to reduce the chance of testimonial error.
they must therefore take intelligent interest in the proceedings bearing in mind two considerations i that the life and liberty of an accused may depend on their vigilance and caution and ii that justice should be done in the identification.
those proceeding should not make it impossible for the identifiers who after all have as a rule only fleeting glimpses of the person they are supposed to identify.
generally speaking the magistrate must make a note of every objection raised by an accused at the time of identification and the steps taken by them to ensure fairness to the accused so that the court which is to judge the value of the identification evidence may take them into consideration in the appreciation of that evidence.
the power to identify it may be kept in view varies according to the power of observation and memory of the person identifying and each case depends on its own facts but there are two factors which seem to be of basic importance in the evaluation of identification.
the persons required to identify an accused should have had no opportunity of seeing him after the commission of the crime and before identification and secondly that no mistakes are made by them or the mistakes made are negligible.
the identification to be of value should also be held without much delay.
the number of persons mixed up with the accused should be reasonably large and their bearing and general appearance not glaringly dissimilar.
the evidence as to identification deserves therefore to be subjected to a close and careful scrutiny by the court.
the observations of this court undoubtedly lay down the correct law and we have no reason to doubt them.
we however do not see how the observations help the appellants.
in the present case the child witness has been found to be reliable.
his presence is not doubted since he resided with the family for whom he worked.
he had no axe to grind against any of the accused.
he became the unfortunate witness of a gruesome murder and fearlessly identified the accused in court.
in his deposition he specified the details of the part which the accused played with reasonable particularity.
in such a situation it is considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witness in court as to the identity of the accused who are strangers to them in the form of earlier identification proceeding as observed by this court in budhsen 's case 1970 indlaw sc 136 supra.
this court has not laid down the requirement in general that all identification parades must be under the supervision of a magistrate as in budhsen 's case 1970 indlaw sc 136 supra the learned counsel for the appellants also relied upon the judgments of this court in subash and shiv kumar vs.
state of u p 1987 3 scc 331 1987 indlaw sc 28887and mohd abdul hafeez vs.
state of andhra pradesh air 1983.
sc 367 1982 indlaw sc 63 the facts and circumstances of the cases are however different and it is not necessary to consider those cases in detail while dealing with the present case.
suffice it to say that those cases do not create any doubt as regards the conviction in this case.
mr p c agrawala learned senior counsel for the appellant mahesh accused no 3vehemently submitted that this accused ought not to have been convicted u s 302 with the aid of ss 34 and 120 b of ipc in particular it was submitted that the role attributed to the accused was that he merely stood outside the house.
he did not even act as a guard because when the witness anil kumar pw 21 came to the house he was not even stopped by the accused from entering the house.
the learned counsel for mahesh accused no 3 relied on several decisions of this court in suresh sakharam nangare vs.
state of maharashtra 2012 9 scc 249 2012 indlaw sc 304jai bhagwan vs.
state of haryana air 1999 sc 1083 1999 indlaw sc 391 and ramashish yadav vs.
state of bihar 1999 8 scc 555 1999 indlaw sc 693.
it is settled law that common intention and conspiracy are matters of inference and if while drawing an inference any benefit of doubt creeps in it must go to the accused vide baliya vs.
state of m p 2012.
9 scc 696 2012 indlaw sc 343.
on a careful conspectus of the facts and the law we are of the view that the prosecution has failed to prove the guilt of mahesh beyond reasonable doubt.
there is no evidence of his having played any part in the crime.
he was merely seen by the witness as standing outside the house when the witness came home.
mahesh did not even act as a guard he did not prevent anil kumar pw 21 from entering the house.
there is no evidence of the formation or sharing of any common intention with the other accused.
there is no reference to a third person in the fir no evidence that he came with the other accused or left with them.
no weapon was seized from him nor was any property connected with the crime seized.
having regard to the role attributed to him and the absence of incriminating factors we find that it is not safe to convict mahesh of the offence of murder with the aid of ss 34 and 120b.
we therefore hold that the accused mahesh accused no 3 in criminal appeal no 867 of 2013 is innocent and the conviction against him is set aside.
his bail bonds stand cancelled and sureties are discharged.
in view of the above criminal appeal no 867 of 2013 is allowed and criminal appeal nos 822 of 2012589 of 2014 and criminal appeal arising out of slp criminal no 3737 of 2014 are dismissed.
appeals disposed of.
| FACTS
the appellant -raju (accused no.4) has filed criminal appeal no.822 of 2012.
the appellant -mahesh (accused no.3) has filed criminal appeal no.867 of 2013.
the appellant -beenu (accused no.2) has filed criminal appeal no.589 of 2014.
the appellant -smt.shashi tripathi (accused no.1) has filed criminal appeal arising out of special leave petition (criminal) no.3737 of 2014.
pw-1 -dr.sharda prasad tripathi is the husband of accused shashi tripathi.
on 25.11.2003,when pw-1 -dr.sharda came home from his clinic,found that his daughter-in-law bhavna tripathi has been murdered.
he lodged a f.i.r on 25.11.2003.
when he went inside,he found his daughter-in-law -bhavna and wife -shashi lying in the courtyard.
bhavna was dead.
shashi was unconscious.
there were numerous injuries,including incised wounds on bhavna,none on shashi.
after registration of the crime,inquest was conducted over the dead body of bhavna on 26.11.2003.
post mortem was conducted and the report is marked as exhibit p/18.
spot map was prepared by the inquiry officer (io); bloodstained cloth of accused shashi tripathi was taken into possession along with broken bangles; bloodstained cement mortar and plain cement mortar were also taken into possession.
shashi tripathi,mahesh and binu @ chandra prakash were arrested on 29.11.2003.
a bloodstained knife was taken into possession.
the accused raju was taken into custody on 22.12.2003 and a suzuki motorcycle was also taken into possession.
a test identification was conducted by the executive magistrate.
a similar identification parade of raju was conducted after his arrest.
the sole eyewitness was a boy of 13 years of age -anil kumar (pw-21),who worked as a servant with the family.
shashi tripathi had brought him home from bilaspur.
he participated in the identification parade,which was held in sub jail,bemetara,and identified the accused persons in the court by touching them.
he stated that shashi didi and bhavna sometimes used to quarrel.
ARGUMENT
this accused ought not to have been convicted u/s.302 with the aid of ss.34 and 120 (b) of ipc.
in particular it was submitted that the role attributed to the accused was that he merely stood outside the house.
he did not even act as a guard because when the witness anil kumar (pw-21) came to the house,he was not even stopped by the accused from entering the house.
this accused ought not to have been convicted u/s.302 with the aid of ss.34 and 120 (b) of ipc.
in particular it was submitted that the role attributed to the accused was that he merely stood outside the house.
he did not even act as a guard because when the witness anil kumar came to the house,he was not even stopped by the accused from entering the house.
ANALYSIS
it is obvious that accused nos.2 and 4 did not enter the house to commit a robbery and had a single mission,namely,to kill bhavana.
there is no evidence that they had any previous animosity with the deceased and appeared to have acted as contract killers.
on a careful perusal of the deposition of this child witness,the court did not find any reason why he would have lied.
he was brought to the house by shashi tripathi (accused),who apparently took care of him and sent to school and gave him food and residence.
he had no grouse against her neither any ulterior motive in identifying the accused,who were not acquainted to him.
there was no reason for the sole eye witness -anil (pw-21) to implicate anybody falsely.
merely because he has been some time in the company of the police at the police station his testimony cannot be discarded as untrue.
the incident occurred within the four walls of the house of the accused -shashi tripathi and the only witness was the boy -anil (pw-21).
the accused devendra kumar was arrested on 22.12.2003 and his identification parade was conducted on 26.12.2003-(within four days).
there is no evidence on record to show that the child witness had an opportunity to see and study the features of the accused between their arrest and test identification parade to enable a tutored identification.
in any case,the period between the arrest and the identification parade was not large enough to constitute inordinate delay.
in the present case,the child witness has been found to be reliable.
his presence is not doubted,since he resided with the family for whom he worked.
he had no axe to grind against any of the accused.
he became the unfortunate witness of a gruesome murder and fearlessly identified the accused in court.
in his deposition he specified the details of the part which the accused played with reasonable particularity.
in such a situation,it is considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witness in court as to the identity of the accused who are strangers to them,in the form of earlier identification proceeding,as observed by this court in budhsen's case 1970 indlaw sc 136 (supra).
this court has not laid down the requirement in general that all identification parades must be under the supervision of a magistrate as in budhsen's case 1970 indlaw sc 136 (supra).
the facts and circumstances of the cases are however different and it is not necessary to consider those cases in detail while dealing with the present case.
suffice it to say that those cases do not create any doubt as regards the conviction in this case.
common intention and conspiracy are matters of inference and if while drawing an inference any benefit of doubt creeps in,it must go to the accused.
the prosecution has failed to prove the guilt of mahesh beyond reasonable doubt.
there is no evidence of his having played any part in the crime.
he was merely seen by the witness as standing outside the house when the witness came home.
mahesh did not even act as a guard; he did not prevent anil kumar (pw-21) from entering the house.
there is no evidence of the formation or sharing of any common intention with the other accused.
there is no reference to a third person in the fir; no evidence that he came with the other accused or left with them.
no weapon was seized from him,nor was any property connected with the crime,seized.
having regard to the role attributed to him and the absence of incriminating factors we find that it is not safe to convict mahesh of the offence of murder with the aid of ss.34 and 120(b).
STATUTE
after committal,the trial court framed charges u/s.302 read with ss.34 and 120b of the ipc.
the prosecution examined 32 witnesses.
no defence witness was examined after the statements of the accused were recorded u/s.313 of the criminal procedure code,1973.
| FACTS
the appellant -raju (accused no.4) has filed criminal appeal no.822 of 2012.
the appellant -mahesh (accused no.3) has filed criminal appeal no.867 of 2013.
the appellant -beenu (accused no.2) has filed criminal appeal no.589 of 2014.
the appellant -smt.shashi tripathi (accused no.1) has filed criminal appeal arising out of special leave petition (criminal) no.3737 of 2014.
pw-1 -dr.sharda prasad tripathi is the husband of accused shashi tripathi.
on 25.11.2003,when pw-1 -dr.sharda came home from his clinic,found that his daughter-in-law bhavna tripathi has been murdered.
he lodged a f.i.r on 25.11.2003.
the crime was registered.
he deposed in court that on 25.11.2003,when he returned home,he found servant anil kumar (pw-21) was weeping.
when he went inside,he found his daughter-in-law -bhavna and wife -shashi lying in the courtyard.
bhavna was dead.
shashi was unconscious.
there were numerous injuries,including incised wounds on bhavna,none on shashi.
after registration of the crime,inquest was conducted over the dead body of bhavna on 26.11.2003.
post mortem was conducted and the report is marked as exhibit p/18.
spot map was prepared by the inquiry officer (io); bloodstained cloth of accused shashi tripathi was taken into possession along with broken bangles; bloodstained cement mortar and plain cement mortar were also taken into possession.
shashi tripathi,mahesh and binu @ chandra prakash were arrested on 29.11.2003.
a bloodstained knife was taken into possession.
the accused raju was taken into custody on 22.12.2003 and a suzuki motorcycle was also taken into possession.
a test identification was conducted by the executive magistrate.
a similar identification parade of raju was conducted after his arrest.
the sole eyewitness was a boy of 13 years of age -anil kumar (pw-21),who worked as a servant with the family.
shashi tripathi had brought him home from bilaspur.
he participated in the identification parade,which was held in sub jail,bemetara,and identified the accused persons in the court by touching them.
he stated that shashi didi and bhavna sometimes used to quarrel.
ARGUMENT
this accused ought not to have been convicted u/s.302 with the aid of ss.34 and 120 (b) of ipc.
in particular it was submitted that the role attributed to the accused was that he merely stood outside the house.
he did not even act as a guard because when the witness anil kumar (pw-21) came to the house,he was not even stopped by the accused from entering the house.
this accused ought not to have been convicted u/s.302 with the aid of ss.34 and 120 (b) of ipc.
in particular it was submitted that the role attributed to the accused was that he merely stood outside the house.
he did not even act as a guard because when the witness anil kumar came to the house,he was not even stopped by the accused from entering the house.
ANALYSIS
shashi tripathi caused bhavna to be killed and for this purpose engaged chandra prakash (accused no.2) and raju @ devendra choubey (accused no.4) by paying them money.
she also seems to have had a scuffle with bhavna,which is apparent from the fact that her hair was found in the grip of the deceased during investigation.
it is obvious that accused nos.2 and 4 did not enter the house to commit a robbery and had a single mission,namely,to kill bhavana.
there is no evidence that they had any previous animosity with the deceased and appeared to have acted as contract killers.
on a careful perusal of the deposition of this child witness,the court did not find any reason why he would have lied.
he was brought to the house by shashi tripathi (accused),who apparently took care of him and sent to school and gave him food and residence.
he had no grouse against her neither any ulterior motive in identifying the accused,who were not acquainted to him.
there was no reason for the sole eye witness -anil (pw-21) to implicate anybody falsely.
merely because he has been some time in the company of the police at the police station his testimony cannot be discarded as untrue.
the incident occurred within the four walls of the house of the accused -shashi tripathi and the only witness was the boy -anil (pw-21).
the accused devendra kumar was arrested on 22.12.2003 and his identification parade was conducted on 26.12.2003-(within four days).
there is no evidence on record to show that the child witness had an opportunity to see and study the features of the accused between their arrest and test identification parade to enable a tutored identification.
in any case,the period between the arrest and the identification parade was not large enough to constitute inordinate delay.
in the present case,the child witness has been found to be reliable.
his presence is not doubted,since he resided with the family for whom he worked.
he had no axe to grind against any of the accused.
he became the unfortunate witness of a gruesome murder and fearlessly identified the accused in court.
in his deposition he specified the details of the part which the accused played with reasonable particularity.
in such a situation,it is considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witness in court as to the identity of the accused who are strangers to them,in the form of earlier identification proceeding,as observed by this court in budhsen's case 1970 indlaw sc 136 (supra).
this court has not laid down the requirement in general that all identification parades must be under the supervision of a magistrate as in budhsen's case 1970 indlaw sc 136 (supra).
the facts and circumstances of the cases are however different and it is not necessary to consider those cases in detail while dealing with the present case.
suffice it to say that those cases do not create any doubt as regards the conviction in this case.
common intention and conspiracy are matters of inference and if while drawing an inference any benefit of doubt creeps in,it must go to the accused.
the prosecution has failed to prove the guilt of mahesh beyond reasonable doubt.
there is no evidence of his having played any part in the crime.
he was merely seen by the witness as standing outside the house when the witness came home.
mahesh did not even act as a guard; he did not prevent anil kumar (pw-21) from entering the house.
there is no evidence of the formation or sharing of any common intention with the other accused.
there is no reference to a third person in the fir; no evidence that he came with the other accused or left with them.
no weapon was seized from him,nor was any property connected with the crime,seized.
having regard to the role attributed to him and the absence of incriminating factors we find that it is not safe to convict mahesh of the offence of murder with the aid of ss.34 and 120(b).
STATUTE
after committal,the trial court framed charges u/s.302 read with ss.34 and 120b of the ipc.
the prosecution examined 32 witnesses.
no defence witness was examined after the statements of the accused were recorded u/s.313 of the criminal procedure code,1973.
|
whether the appellant herein and his father had sublet the premises in question in or about 1960 in terms of section 131e of the bombay rents hotel and lodging house rates control act1947.
hereinafter called the rent act is the question involved in this appeal by special leave from the judgment and order of the high court of gujarat dated 21st of august1979.
in order to decide this question it is necessary to decide the scope and ambit of section 292 of the rent act.
to decide this facts must be referred to.
the appellant claimed to be the tenant in respect of the two premises which are quite adjacent to each other one of which is involved in this appeal.
the respondent is the landlord of the two premises and these were situated at raikhad ward ahmedabad.
the respondent had alleged in the two suits that the appellant was his tenant in the suit premises which were leased out to him and before him his father for conducting the business in the name of ahmedabad fine.
weaving works and according to the terms of tenancy suit premises were leased for manufacturing cloth in the name of ahmedabad fine.
weaving works.
the respondent had further alleged that the appellant no 1 had closed the business and he was not using the said premises for the purpose for which it was let to him.
it was the case of the appellant that in respect of the suit premises he was carrying on his business with respondents.
nos 24 and 5 in the name of respondent no 2m s.
bharat neon signs hereinafter referred to as respondent no 2.
we are concerned in this appeal with only one of the premises which was involved in suit no 553 of 1969 it is not in dispute and it never was that the premises was being used by bharat neon signs firm being the defendant no 2 in the original suit.
at the time of the institution of the suit the defendants nos 2 to 5 were admittedly the partners.
the present appellant who was the original defendant no 1 claimed to be a partner.
the main controversy was whether the appellant had sublet the premises to defendant no 2bharat neon signs or whether he being a partner of the said firm had permitted the said firm to use the premises in question.
it is clear from the evidence on record that the partnership firm had undergone metamorphosis from time to time and again ever since the year 1960 the firm bharat neon signs first originated on 4th of october1960 as many as six persons were named in the partnership firm on or about 4th of october1960 and they had executed a deed of partnership on 13th of october1960 which is exhibit 114 on the record.
the said partnership deed records six persons who were to run the business in manufacturing and selling bharat neon signs tubes.
however the document is silent as to where the business was started.
on or about 24th of october1960.
another partnership deed being exhibit 69 came to be executed among the six persons and the father of the appellant girdharlal.
the document is exhibit 69 and is signed by the father of the appellant and the appellant himself also.
it may be mentioned that the partnership deed exhibit 114 was executed by six persons and at that stage the appellant or his father were not partners in the firm.
but thereafter when the partnership deed exhibit 69 was executed the appellant and his father joined the firm with an agreement to share profits only and their share was fixed at 0 03 paise in a rupee.
there is a third partnership deed exhibit 70 which showed that the deceased tenant girdharlal had died on 1st of february1961 and so by the remaining seven partners with same terms and conditions a new partnership deed being exhibit 70 was executed on 22nd.
september1961 at this time the share of the appellant was fixed at 0 03 paise in a rupee to share the profits only.
in 1965 some partners retired and the remaining four partners executed a fresh partnership deed exhibit 117 on 1st.
april1965 this last partnership deed was executed by the appellant and original defendants.
nos 34 and 5.
the main question in issue in this appeal as well as before the high court in revision was whether there was a genuine partnership at the appellant was a partner.
it is true that since after 4th of october1960 the partnership firm was carrying on business in the premises in question.
it is well settled that if there was such a partnership firm of which the appellant was a partner as a tenant the same would not amount to subletting leading to the forfeiture of the tenancy.
for this proposition see the decision of the gujarat high court in the case of mehta jagjivan vanechand v doshi vanechand harakhchand and others.
a i r 1972 gujarat 6 1970 indlaw guj 68 thakkar j of the gujarat high court as the learned judge then was held that the mere fact that a tenant entered into a partnership and allowed the premises being used for the benefit of partnership does not constitute assignment or subletting in favour of the partnership firm entitling a landlord to recover possession.
this view is now concluded by the decision of this court in madras bangalore transport co west v inder singh and others1986 3 s c c 62 1986.
indlaw sc 748.
the trial court in the instant appeal held that there was subletting.
it accordingly decreed the suit for possession instituted by the landlord.
the suit inter alia was filed by the landlord on the ground of subletting.
there was an appeal before the court of small causes bombay and by judgment and order delivered by the court of small causes bombay on 18th of august1977it was held that the learned trial judge had erred in passing a decree for possession on the ground of subletting change of user and breach of terms of tenancy.
in the premises the appeal was allowed.
it may be mentioned that the respondent no 1 is the landlord of two premises which were quite adjacent as mentioned before.
the respondent plaintiff had alleged in both the suits that the appellant was his tenant in the suit premises which were leased to him for conducting his business in the name of ahmedabad fine.
weaving works and according to the terms of tenancy suit the suit premises were leased for manufacturing cloth in the name of ahmedabad fine weaving works.
the landlord had alleged that the appellant had closed that business and he was not using the premises in question for the purpose for which it was let to him.
it was further alleged by the landlord that the appellant had unlawfully sublet the major part of the premises in question of both the suits to defendant nos 2 to 5 in the original suit and these defendants were running business in partnership for manufacturing of neon signs in the name of bharat neon signs.
it was further alleged that the appellant had also unlawfully sublet one room of the suit premises to defendant no 6 in suit no 553 of 1969 who was residing in that room.
for the purpose of the suit no 553 of 1969 with which the appeal is concerned it is relevant to state that the appellant had raised the contention that ahmedabad fine weaving works was not the tenant of the suit premies but the suit premises was tenanted by the father of the appellant girdharlal chimalal in 1938 and he was the original tenant of the premises and appellant subsequently joined the business of his father as a partner and the name of the partnership firm was ahmedabad fine weaving works.
he has stated further that the suit premises were to be used for business and he could use it for any business and he joined in partnership with defendants nos 2 to 5 somewhere in 1961 to prepare neon signs and the defendants nos 2 to 5 were his partners and doing business in the suit premises.
he contended further that the suit premises was with him and the defendants nos 2 to 5 had not acquired any tenancy rights in the suit premises.
it is further stated that he had filed a civil suit to dissolve the partnership and to take account and his suit was pending in city civil court.
it may be mentioned that by the time the revision petition came to be decided by the high court the suit had been decreed in his favour directing a dissolution of the said partnership and directing taking of the accounts.
there was an appeal filed from that decree and that appeal was also dismissed and disposed of affirming the decree for the dissolution of the partnership inter se between the parties being the partners of the said firm.
these facts were accepted that there was a partnership.
as mentioned hereinbefore the learned trial judge consolidated both the suits and in the instant suit being no 553 of 1969 with which this appeal is concerned it was held by the learned trial judge that there was unlawful subletting.
there was a decree for possession.
this was set aside in appeal.
the appellate court so far as the material for the present appeal is concerned held that there was no subletting and there was only carrying on of the business in partnership with defendants nos 2 to 5 in the name of bharat neon signs.
therefore the first question that had to be decided by the appellate court being the court of small causes bombay and if a revision lay before the high court was whether there was any genuine partnership.
the partnership deeds were there the appellant was not to share in the losses.
the court of small causes came to the conclusion on an analysis of the evidence before it and the terms of the three partnership deeds referred to hereinbefore that there was a genuine partnership in law which was acted upon.
the high court in revision reversed that finding.
the first question therefore is whether the high court could do so in the facts of this case and secondly whether the high court was right in so doing.
whether there was a partnership or not may in certain cases be a mixed question of law and fact in the sense that whether the ingredients of partnership as embodied in the law of partnership were there in a particular case or not must be judged in the light of the principles applicable to partnership.
the first question therefore is what is a partnership.
that has to be found in section 4 of the indian partnership act1932it says partnership is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all emphasis supplied.
section 6 of the said act reiterates that in determining whether a group of persons is or is not a firm or whether a person is or is not a partner in a firm regard shall be had to the real relation between the parties as shown by all relevant facts taken together.
the following important elements must be there in order to establish partnership1 there must be an agreement entered into by all parties concerned2.
the agreement must be to share profits of business and 3 the business must be carried on by all or any of the persons concerned acting for all.
the partnership deeds were there entitling the petitioner to share in the partnership.
it is true that in the partnership deeds the bank accounts were not to be operated by the appellant and further that irrespective of the profit.
the clause of the partnership deed provided that there should be a fixed percentage of profit to be given to the partner appellant no 1 the appellant was not to share the losses.
but there is nothing illegal about it.
the appellant was to bring his asset being the tenancy of the premises in question for the user of the partnership.
all these tests were borne in mind by the court of small causes bombay in the appeal from the decision of the learned trial judge.
the appellate court had considered the partnership deeds.
one point was emphasised by mr mehta learned counsel appearing for the respondents that the original first partnership deed did not mention the appellant or his father as a partner.
it was in the second partnership deed that the appellant and his father joined the firm.
the firm started as emphasised by mr mehta on 4th of october1960 and it was only on the 24th of october1960 the second partnership deed was executed.
therefore it was emphasised that there was a gap of time when there was user by the partnership firm of the premises in question when the appellant was not a member of the firm.
it was emphasised that this aspect was not considered by the court of small causes and the high court therefore was justified in interfering with the findings of the court of small causes.
we are unable to agree.
these deeds were there the partners were crossexamined there was no specific evidence as to from what date the firm started functioning from the particular premises in question.
secondly it was emphasised by mr mehta that the partnership deed was a camouflage.
it is evident from the sales tax registration and other registration certificates and licences under the shops and establishments act that the partnership was registered in the name of the appellant and the appellant was also indicated as a partner.
it was so in the income tax returns and assessments.
therefore it was submitted that the court of small causes committed an error of law resulting in miscarriage of justice.
it was submitted by mr mehta that once it was accepted that the partnership deed was a mere camouflage the other subsequent acts and conducts were merely ancillary and were put in a formal way.
but the question is from the three deeds itself which were examined in detail by the court of small causes and which were re examined by the high court could it be said unequivocally that there was no partnership.
the deeds gave the appellant the right to share the profits and made him agent for certain limited purposes of the firm and there was evidence that the partnership deeds were acted upon.
there was evidence of suit of dissolution of the partnership where none of the partners took the plea that it was a false or a fictitious document.
though the decree in the dissolution suit was not binding in these proceedings inter se between the parties as partners it is a piece of evidence which can not be wholly ignored.
all these factors were present before the court of small causes.
these were reappraised by the high court.
mehta.
that in the partnership deed which is not necessary to recite the terms the petitioner was completely excluded in operating the bank accounts etc.
there is nothing inherently illegal or improbable making a provision of such a type.
in the eye of law such a clause is really non sequitur or neutral proving neither the existence nor non existence of a genuine firm.
the first partnership deed which is exhibit 114 is dated 13th october1960 it recited that the partnership firm should be presently started at ahmedabad and the same should later be started in another city.
in this the appellant was not a partner.
exhibit 69 at page 136 of volume ii of the paper book is a partnership deed wherein girdharlal the father of the appellant no 1 and the appellant no 1 joined as partners.
it recited that the partnership started from 4th of october1960 at ahmedabad.
it was registered in the name of 7th and 8th partners girdharlal who was the appellant and his father.
it was recited that the work of the partnership would be done by the parties of the fourth fifth sixth seventh and eighth as per advice and instructions of the first second and third.
all the work had been done by some of the partners of which appellants were not parties and that they had to do the said work as per instructions of the other partners.
clauses 6 and 7 of the said partnership deed recited inter alia as follows 6 the year of accounts of our partnership shall be aso vadi 30th day i e diwali and the first account year is decided to be the aso vadi 30th day of samvat year 2017 while settling accounts at the close of the year33 amount from the sum which may remain as net profit after deducting all expenditures viz interest discount rent of the shop rent of the godown insurance brokerage travelling telegrams postage salaries of employees etc shall be carried to reserve fund and thereafter in the sum that remains as net profit the shares of us the partners have been fixed as under 7 while settling accounts at the close of the year if the sum less than rs 1500 falls to the 0 03 shares of the partners of the seventh and eighth parts the amount falling short has to be debited towards the head of expenditure and rs 1500 fifteen hundred only have to be paid in full to each of them two and in those circumstances or if there be loss the parties of the seventh or eighth parts have not been held liable therefore and in the year or losses it has been decided to pay rs 1500 fifteen hundred only to each of them after debiting the same towards the head of expenditure and in the year of losses nothing has to be carried to the reserve fund and the loss has to be borne by us to parties first to sixth parts in the following proportion 8 clause 8 empowered the operating of the bank accounts by partners other than the appellant and his father.
we find intrinsically nothing improbable.
it is embodied in the deeds the functioning of the partnership.
the third partnership which is dated 22nd of september1961 also indicates as parties of sixth part the name of the appellant.
the relevant portion of the partnership deed reads as follows to wit the parties of the first to sixth parts out of us deceased khristi girdharbhai chimanlal and shah virchand keshavji had jointly started the business of manufacturing and selling neon signs tubes in partnership in ahmedabad from 4 10 1960in the name and style of bharat neon signs.
however on account of the death of khristi girdharbhai chimanlal on 1 2 61 and other reasons the said partnership was dissolved from 8 9 61 thereafter we the parties from the first to seventh part have after purchasing at its cost price all the debts and dues goods stock etc together with goodwill of the dissolved partnership started manufacturing and selling of neon signs tubes in partnership from 9 9 61 we the parties of all the seven parts execute the deed of the said partnership to day.
i e 22 9 61 the terms and conditions.
thereof are as under.
1 the entire work of our partnership has to be carried out in the name of bharat neon signs.
2 the work to be carried out by our partnership is of manufacturing and selling neon signs tubes and of obtaining orders therefore.
3 whatever moneys that may be required to be invested in our partnership are to be invested by the parties of the first second third fourth and seventh parts out of us and the interest at the rate of 712 per cent per annum has to be paid for the moneys that may be invested in this partnership.
we are of the opinion that these were evidence that these terms were acted upon.
there was nothing intrinsically wrong in law in constituting a partnership in the manner it was done.
it was contended by mr mehta that there was no agency reading the partnership deeds as we have read that conclusion does not emanate from position appearing debiting the fixed amount payable to the appellant in the expenses account which also is not inconsistent with partnership.
this is also not inconsistent with treating the rent of the firm in the context of the total expenditure of the firm.
in any event all these factors were considered by the court of small causes bearing in mind the correct legal principles.
the high court on a reappraisal of these very evidence came to the conclusion that the partnerships were camouflages and were not acted upon and in fact and in reality the partnership firm was a sub tenant of the appellant herein.
the question is can the high court do so in law.
the power of the high court to revise the order is contained in section 292 of the bombay rent act as applicable at the relevant time to gujarat the said provision reads as follows 292.
no further appeal shall lie against any decision in appeal under sub section 1 but the high court may for the purpose of satisfying itself that any such decision in appeal was according to law call for the case in which such decision was taken and pass such order with respect thereto as it thinks fit.
the ambit and power of revision generally and in particular with respect to the provisions with which we are concerned have from time to time come up for consideration by this court.
this court in hari shankar v rao girdhari lal chowdhury1962 1 suppl.
scr 933 1961 indlaw sc 157 had to consider section 351 of the delhi ajmer rent corntrol act1952.
the said section reads as follows 351.
the high court may at any time call for the record of any case under this act for the purpose of satisfying itself that a decision made therein is according to law and may pass such order in relation thereto as it thinks fit.
it was held in the majority judgment by hidayatuiiah j as the learned chief justice then was that though section 35 of the delhi and ajmer rent control act was worded in general terms but it did not create a right to have the case re heard.
this court emphasised that the distinction between an appeal and revision is a real one.
a right to appeal carries with it right of re heating on law as well as fact.
unless the statute conferring the right to appeal limits the re hearing in some way.
the power to hear a revision is generally given to a superior court so that it may satisfy itself that a particular case is decided according to law.
the expression according to law in section 35 of the said act referred to the decision as a whole and was not to be equated to errors of law or of fact simpliciter.
this court was of the view that what the high court could see is that there has been no miscarriage of justice and that the decision was according to law in the sense mentioned.
kapur j who delivered a separate judgment however observed that the power under section 351 of the said act of interference by the high court is not restricted to a proper trial according to law or error in regard to onus of proof or proper opportunity of being heard.
it is very much wider than that when in the opinion of the high court the decision is erroneous on the question of law which affects the merits of the case or decision was manifestly unjust the high court is entitled to interfere.
the revisional authority could ensure that there was no miscarriage of justice and the principles of law have been correctly borne in mind the facts had been properly comprehended in that light.
if that was done in a particular case then the fact that the revisional authority or the high court might have arrived to a different conclusion is irrelevant.
this view had also been expressed in the decision of this court in puranchand v motilal1963.
supp 2 s c r 906 1962 indlaw sc 455.
this principle was reiterated in krishnawati v hans raj1974 2 s c r 524 1973 indlaw sc 208 which was dealing with section 392 of the delhi rent control act1958 in second appeal.
it was observed that under section 392 of the said act the high court could interfere in second appeal only if there was a substantial question of law.
in that case the question whether the appellant was legally married no finding was necessary in the eviction suit.
it was sufficient for the rent court to proceed on the finding that the appellant and s were living together as husband and wife whether they were legally married or not.
it was further held that whether there was subletting was not a mixed question of law and fact.
in phiroze bamanji desai v chandrakant m patel ors 1974 3 scr 267 1974 indlaw sc 282 the question involved was whether there was reasonable and bona fide requirement of premises for personal use and occupation as also the question of greater hardship under the bombay rent act and the ambit and scope of the power of section 293 of the said act with which we are concerned came up for consideration.
bhagwati j as.
the learned chief justice then was referred with approval the observations of hidayatullah j referred to hereinbefore in hari shankar 's case.
1961 indlaw sc 157 supra bhagwati j observed that the ambit of section 351 of the delhi ajmer rent control act which fell for consideration in hari shanker 's case 1961 indlaw sc 157 supra was the same as section 293 of the bombay rent act and therefore he expressed the opinion that the high court could interfere only if there was miscarriage of justice due to mistake of law.
we must take note of a decision in the case of m s kasturbhai ramchand panchal brothers and others v firm of mohanlal nathubhai and others air 1969 gujarat 110 1967 indlaw guj 57upon which the high court had placed great reliance in the judgment under appeal.
there the learned judge relying on section 292 of the said act held that the revisional power with which the high court was vested under section 292 was not merely in the nature of jurisdictional control.
it extended to corrections of all errors which would make the decision contrary to law.
the legislature the learned judge felt further empowered high court in its revisional jurisdiction to pass such order with respect thereto as it thought fit.
the power according to the learned judge was of the widest amplitude to pass such orders as the court thought fit in order to do complete justice.
he dealt with the human problem under section 132 of bombay rent act considering the relative hardships of the landlord and the tenant and to arrive at a just solution he was of the opinion that the court should have such wide field.
the jurisdiction of high court is to correct all errors of law going to the root of the decision which would in such cases include even perverse findings of facts perverse in the sense that no reasonable person acting judicially and properly instructed in the relevant law could arrive at such a finding on the evidence on the record.
in this view in our opinion the ambit of the power was expressed in rather wide amplitude.
as we read the power the high court must ensure that the principles of law have been correctly borne in mind.
secondly the facts have been properly appreciated and a decision arrived at taking all material and relevant facts in mind.
it must be such a decision which no reasonable man could have arrived at.
lastly such a decision does not lead to a miscarriage of justice.
we must however guard ourselves against permitting in the guise of revision substitution of one view where two views are possible and the court of small causes has taken a particular view.
if a possible view has been taken the high court would be exceeding its jurisdiction to substitute its own view with that the courts below because it considers it to be a better view.
the fact that the high court would have taken a different view is wholly irrelevant.
judged by that standard we are of the opinion that the high court in this case had exceeded its jurisdiction.
in the case of punamchandra revashankar joshi v ramjibhai maganlal gujarat law reporter.
1966the gujarat high court after dealing with the gujarat amendment act xviii of 1965 observed that the legislature has not intended to equate the ambit of the power with the one exercised in an appeal.
the authority vested in the high court under the amendment still remained only in the domain of the jurisdiction and power of revision and no further.
the amending provision therefore only related to procedure and not to any rights of the parties.
this court in the case of bhai chand ratanshi v laxmishanker tribhavan1982 1 rent control journal 2421981.
indlaw sc 244 observed that where lower courts applied their minds properly in deciding a matter under section 132 of the bombay rent act the high court could not substitute its own finding for the one reached by the courts below on a reappraisal of evidence under section 292 of the act as substituted by the gujarat act 18 of 1965 this court reiterated that although the high court had wider power than that which could be exercised under section 115 of c p c yet its revisional power could only be exercised for a limited purpose with a view to satisfying itself that the decision was according to law.
the high court could not substitute its own finding for the one reached by the courts below on a reappraisal of evidence.
in the instant case the basic question is whether keeping in background the partnership deeds referred to hereinbefore and the facts that came to light was there partnership or not.
sharing of profits and contributing to losses were not the only elements in a partnership existence of agency was essential and whether there was a partnership or not is a mixed question of law and fact depending upon the varying circumstances in different cases.
this view was reiterated by chief justice beaumont in chimanram motilal and another v jayantilal chhaganlal and another a i r 1939 bombay 410 1939 indlaw mum 155 ramaswami j in mohammed musa sahib dead and others v n k mohammed ghouse sahib and another a i r 1959.
madras 379 1958 indlaw mad 820 observed that whether the relation of partnership between two or more persons does or does not exit must depend on the real intention and contract of the parties and not merely on their expressed intention.
he also referred to section 4 of the partnership act about the principles of partnership namely1 there must be agreement entered into by all the persons concerned 2 the agreement must be to share the profits of a business and 3 the business must be carried on by all or any of the persons concerned acting for all.
in the instant case judged by the aforesaid principles it is possible to hold that there was a partnership of which the appellant was a partner.
the court of small causes considered these principles evaluated the evidence and held that there was in fact and in law a partnership.
such a view was not an impossible one or a perverse one.
if that was so there was nothing that could be clone about such a view within the ambit and scope of the power of section 292 of the rent act.
we may mention that in gundalapalli rangamannar chetty v desu rangiah and others a i r 1954.
madras 182subba rao j as the learned chief justice then was held that there can not be a subletting unless the lessee parted with legal possession.
the mere fact that another is allowed to use the premises while the lessee retains the legal possession is not enough to create a sub lease.
in the light of the aforesaid principles and the facts that have emerged we are of the opinion that the high court exceeded its jurisdiction under section 292 of the rent act.
we are further of the opinion that the court of small causes was right in the view it took.
and it was a possible view to take.
in the result the appeal is allowed and the judgment and order of the gujarat high court dated 21st of august1979 are set aside.
the order and judgment of the court of small causes ahmedabad dated 18th of august1977 are restored.
the suit for possession is accordingly dismissed.
the appellant herein is entitled to the costs throughout.
appeal allowed.
appeal allowed.
| FACTS
the appellant claimed to be the tenant in respect of the two premises which are quite adjacent to each other,one of which is involved in this appeal.
the respondent who is the landlord of the two premises leased out to the appelllant and father, for conducting the business in the name of ahmedabad fine.
the appellant no.1 had closed the business and he was not using the said premises for the purpose for which it was let to him.
it was the case of the appellant that in respect of the suit premises he was carrying on his business with respondents. nos.2,4 and 5 in the name of respondent no.2,m/s. bharat neon signs.
the main controversy was whether the appellant had sublet the premises to defendant no.2,bharat neon signs or whether he being a partner of the said firm had permitted the said firm to use the premises in question.
partnership deed records six persons who were to run the business in manufacturing and selling bharat neon signs tubes.
on or about 24th of october,1960. another partnership deed being exhibit-69 came to be executed among the six persons and the father of the appellant girdharlal
ARGUMENT
he has stated further that the suit premises were to be used for business and he could use it for any business and he joined in partnership with defendants nos.2 to 5 somewhere in 1961 to prepare neon signs and the defendants nos.2 to 5 were his partners and doing business in the suit premises.
he contended further that the suit premises was with him and the defendants nos.2 to 5 had not acquired any tenancy rights in the suit premises.
it is further stated that he had filed a civil suit to dissolve the partnership and to take account and his suit was pending in city civil court.
it was contended by mr. mehta that there was no agency; reading the partnership deeds as we have read that conclusion does not emanate from position appearing debiting the fixed amount payable to the appellant in the expenses account which also is not inconsistent with partnership.
ISSUE
whether the appellant herein and his father had sublet the premises in question in or about 1960 in terms of section 13(1)(e) of the bombay rents,hotel and lodging house rates control act,1947. hereinafter called the 'rent act') is' the question involved in this appeal by special leave from the judgment and order of the high court of gujarat dated 21st of august,1979.
the main question in issue in this appeal as well as before the high court in revision was whether there was a genuine partnership at the appellant was a partner.
ANALYSIS
the partnership deed exhibit-114 was executed by six persons and at that stage the appellant or his father were not partners in the firm.
but thereafter when the partnership deed exhibit-69 was executed the appellant and his father joined the firm with an agreement to share profits only and their share was fixed at 0.03 paise in a rupee.
there is a third partnership deed exhibit-70 which showed that the deceased tenant girdharlal had died on 1st of february,1961 and so by the remaining seven partners with same terms and conditions,a new partnership deed being exhibit-70 was executed on 22nd. september,1961.at this time the share of the appellant was fixed at 0.03 paise in a rupee to share the profits only.
it is well settled that if there was such a partnership firm of which the appellant was a partner as a tenant the same would not amount to subletting leading to the forfeiture of the tenancy.
for this proposition see the decision of the gujarat high court in the case of mehta jagjivan vanechand v. doshi vanechand harakhchand and others. a.i.r.1972 gujarat 6 1970 indlaw guj 68.
section 4 of the indian partnership act,1932,it says "partnership is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all"
the terms and conditions in the partnership deed are as under.
1) the entire work of our partnership has to be carried out in the name of "bharat neon signs.
2) the work to be carried out by our partnership is of manufacturing and selling neon signs tubes and of obtaining orders therefore.
3) whatever moneys that may be required to be invested in our partnership,are to be invested by the parties of the first,second,third,fourth and seventh parts out of us and the interest at the rate of 71/2 per cent per annum has to be paid for the moneys that may be invested in this partnership.
we are of the opinion that these were evidence that these terms were acted upon.
there was nothing intrinsically wrong in law in constituting a partnership in the manner it was done.
a right to appeal carries with it right of re-heating on law as well as fact. unless the statute conferring the right to appeal limits the re-hearing in some way.
the power to hear a revision is generally given to a superior court so that it may satisfy itself that a particular case is decided according to law.
the jurisdiction of high court is to correct all errors of law going to the root of the decision which would,in such cases,include even perverse findings of facts,perverse in the sense that no reasonable person,acting judicially and properly instructed in the relevant law could arrive at such a finding on the evidence on the record. in this view in our opinion the ambit of the power was expressed in rather wide amplitude.
as we read the power,the high court must ensure that the principles of law have been correctly borne in mind.
secondly,the facts have been properly appreciated and a decision arrived at taking all material and relevant facts in mind. it must be such a decision which no reasonable man could have arrived at.
lastly,such a decision does not lead to a miscarriage of justice.
we must,however,guard ourselves against permitting in the guise of revision substitution of one view where two views are possible and the court of small causes has taken a particular view.
if a possible view has been taken,the high court would be exceeding its jurisdiction to substitute its own view with that the courts below because it considers it to be a better view.
the fact that the high court would have taken a different view is wholly irrelevant.
the authority vested in the high court under the amendment still remained only in the domain of the jurisdiction and power of revision and no further.
the amending provision,therefore,only related to procedure and not to any rights of the parties.
sharing of profits and contributing to losses were not the only elements in a partnership,existence of agency was essential and whether there was a partnership or not is a mixed question of law and fact,depending upon the varying circumstances in different cases.
this view was reiterated by chief justice beaumont,in chimanram motilal and another v. jayantilal chhaganlal and another,a.i.r.1939 bombay 410 1939 indlaw mum 155.ramaswami,j.in mohammed musa sahib (dead) and others v. n.k.mohammed ghouse sahib and another,a.i.r.1959. madras 379 1958 indlaw mad 820 observed that whether the relation of partnership between two or more persons does or does not exit must depend on the real intention and contract of the parties and not merely on their expressed intention
in the instant case judged by the aforesaid principles of section 4 of partnership act,it is possible to hold that there was a partnership of which the appellant was a partner. the court of small causes considered these principles,evaluated the evidence and held that there was in fact and in law a partnership. such a view was not an impossible one or a perverse one.
if that was so,there was nothing that could be clone about such a view,within the ambit and scope of the power of section 29(2) of the rent act.
STATUTE
the power of the high court to revise the order is contained in section 29(2) of the bombay rent act as applicable at the relevant time to gujarat
| FACTS
the appellant claimed to be the tenant in respect of the two premises which are quite adjacent to each other,one of which is involved in this appeal.
the respondent who is the landlord of the two premises leased out to the appelllant and father, for conducting the business in the name of ahmedabad fine.
the appellant no.1 had closed the business and he was not using the said premises for the purpose for which it was let to him.
it was the case of the appellant that in respect of the suit premises he was carrying on his business with respondents. nos.2,4 and 5 in the name of respondent no.2,m/s. bharat neon signs.
the main controversy was whether the appellant had sublet the premises to defendant no.2,bharat neon signs or whether he being a partner of the said firm had permitted the said firm to use the premises in question.
partnership deed records six persons who were to run the business in manufacturing and selling bharat neon signs tubes.
on or about 24th of october,1960. another partnership deed being exhibit-69 came to be executed among the six persons and the father of the appellant girdharlal.
the landlord had alleged that the appellant had closed that business and he was not using the premises in question for the purpose for which it was let to him.
it was further alleged by the landlord that the appellant had unlawfully sublet the major part of the premises in question of both the suits to defendant nos.2 to 5 in the original suit and these defendants were running business in partnership for manufacturing of neon signs in the name of bharat neon signs.
ARGUMENT
he has stated further that the suit premises were to be used for business and he could use it for any business and he joined in partnership with defendants nos.2 to 5 somewhere in 1961 to prepare neon signs and the defendants nos.2 to 5 were his partners and doing business in the suit premises.
the suit premises was with him and the defendants nos.2 to 5 had not acquired any tenancy rights in the suit premises.
it is further stated that he had filed a civil suit to dissolve the partnership and to take account and his suit was pending in city civil court.
there was no agency, reading the partnership deeds as we have read that conclusion does not emanate from position appearing debiting the fixed amount payable to the appellant in the expenses account which also is not inconsistent with partnership.
ISSUE
whether the appellant herein and his father had sublet the premises in question in or about 1960 in terms of section 13(1)(e) of the bombay rents,hotel and lodging house rates control act,1947 (hereinafter called the 'rent act') is the question involved in this appeal by special leave from the judgment and order of the high court of gujarat dated 21st of august,1979.
ANALYSIS
the partnership deed exhibit-114 was executed by six persons and at that stage the appellant or his father were not partners in the firm.
but thereafter when the partnership deed exhibit-69 was executed the appellant and his father joined the firm with an agreement to share profits only and their share was fixed at 0.03 paise in a rupee.
there is a third partnership deed exhibit-70 which showed that the deceased tenant girdharlal had died on 1st of february,1961 and so by the remaining seven partners with same terms and conditions,a new partnership deed being exhibit-70 was executed on 22nd. september,1961.at this time the share of the appellant was fixed at 0.03 paise in a rupee to share the profits only.
it is well settled that if there was such a partnership firm of which the appellant was a partner as a tenant the same would not amount to subletting leading to the forfeiture of the tenancy.
section 4 of the indian partnership act,1932,it says "partnership is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all"
the terms and conditions in the partnership deed are as under:
1) the entire work of our partnership has to be carried out in the name of "bharat neon signs.
2) the work to be carried out by our partnership is of manufacturing and selling neon signs tubes and of obtaining orders therefore.
3) whatever moneys that may be required to be invested in our partnership,are to be invested by the parties of the first,second,third,fourth and seventh parts out of us and the interest at the rate of 71/2 per cent per annum has to be paid for the moneys that may be invested in this partnership.
the court was of the opinion that these were evidence that these terms were acted upon.
a right to appeal carries with it right of re-heating on law as well as fact. unless the statute conferring the right to appeal limits the re-hearing in some way.
the power to hear a revision is generally given to a superior court so that it may satisfy itself that a particular case is decided according to law.
the jurisdiction of high court is to correct all errors of law going to the root of the decision which would,in such cases,include even perverse findings of facts,perverse in the sense that no reasonable person,acting judicially and properly instructed in the relevant law could arrive at such a finding on the evidence on the record. in this view in our opinion the ambit of the power was expressed in rather wide amplitude.
the high court must ensure that the principles of law have been correctly borne in mind.
secondly,the facts have been properly appreciated and a decision arrived at taking all material and relevant facts in mind. it must be such a decision which no reasonable man could have arrived at.
lastly,such a decision does not lead to a miscarriage of justice.
if a possible view has been taken,the high court would be exceeding its jurisdiction to substitute its own view with that the courts below because it considers it to be a better view.
the fact that the high court would have taken a different view is wholly irrelevant.
the authority vested in the high court under the amendment still remained only in the domain of the jurisdiction and power of revision and no further.
the amending provision,therefore,only related to procedure and not to any rights of the parties.
sharing of profits and contributing to losses were not the only elements in a partnership,existence of agency was essential and whether there was a partnership or not is a mixed question of law and fact,depending upon the varying circumstances in different cases.
this view was reiterated by chief justice beaumont,in chimanram motilal and another v. jayantilal chhaganlal and another,a.i.r.1939 bombay 410 1939 indlaw mum 155.ramaswami,j.in mohammed musa sahib (dead) and others v. n.k.mohammed ghouse sahib and another,a.i.r.1959. madras 379 1958 indlaw mad 820 observed that whether the relation of partnership between two or more persons does or does not exit must depend on the real intention and contract of the parties and not merely on their expressed intention
in the instant case judged by the aforesaid principles of section 4 of partnership act,it is possible to hold that there was a partnership of which the appellant was a partner. the court of small causes considered these principles,evaluated the evidence and held that there was in fact and in law a partnership. such a view was not an impossible one or a perverse one.
if that was so,there was nothing that could be clone about such a view,within the ambit and scope of the power of section 29(2) of the rent act.
STATUTE
section 29(2) of the bombay rents act states that no further appeal shall lie against any decision in appeal under sub-section (1) but the high court may,for the purpose of satisfying itself that any such decision in appeal was according to law,call for the case in which such decision was taken and pass such order with respect thereto as it thinks fit.
|
this appeal by special leave is directed against order dated 13 7 2005 passed by the division bench of the bombay high court.
dismissing letter patents appeal preferred by the appellant against the order of the learned single judge who dismissed his writ petition and confirmed the orders passed by the state minister for revenue in the proceeding r t s 3402 pra kra 309 l 6 dated 18th october2002.
it is the appellant 's case that his father shri nawoosingh panjumal panjwani was a displaced person who migrated from pakistan to india during the period of partition and the appellant 's family while in pakistan was having agricultural land over there admeasuring 4 acres 10 gunthas.
after migration the family took shelter at refugee camp of pimpri pune in maharashtra.
in view of enactment of displaced persons compensation and rehabilitation act1954 by the union of india the immovable properties left behind by muslims who had migrated to pakistan were acquired and the same was distributed to displaced persons as a compensation pool.
accordingly father of the appellant was allotted a land admeasuring 2 acres 5 gunthas bearing revenue survey nos 351 and 1182 situated at village lonavala taluka maval district pune.
it has been pleaded by the appellant that survey no 1181 and 1182 are one and the same thing.
the facts in brief as narrated in the impugned order are that survey nos 118328 and 351 of lonavala were originally owned by one haji habib tar mohammed janu.
the said haji habib tar mohammed janu migrated to pakistan and while going to pakistan he sold his property to one smt.
hajrabi haji yusuf on 4 6 1949 however this transaction was cancelled by the collector and custodian of evacuee property on 17 4 1949 as per section 8i of the evacuee properties act and these lands were accordingly entered as evacuee property by the tahsildar maval on 26 10 1949 it appears that these survey numbers were also given c t s no 129130 a130 b and 133.
it appears that in cts no 129130 a130 b and 133apart from vacant land there is a bungalow no 52 habib villa.
it appears that the regional settlement commissioner placed this property for auction through government auctioner and one gulabbai desaipurchased the said property in auction for a consideration of rs 16750 on 17 5 1956 and accordingly sale certificate was issued by the regional settlement commissioner bombay on behalf of the government.
in the said sale certificate the c t s no 129130 a130 b and 133 of village lonavala were mentioned.
the area of this cts nos were as under.
on the basis of the said sale certificate the mutation entry no 1836 was effected in the village record in favour of gulabai desai and thereby her name was entered in survey nos 1181b and 328 of village lonavala to the extent of 29 30 ares and 70 ares respectively.
thereafter gulabai sold cts no 133 admeasuring 33 gunthas on 24 4 1977 to respondent no 3 genu kadu.
the said gulabai also gifted her remaining area from this survey numbers to her grandson anil gajanan desai on 15 1 1979who in turn has sold his properties to respondent no 2.
prem hasmatraj lalwani in the year 1980.
the survey nos 1182 and 351being evacuee properties were allotted to the appellant in the year 1956 later on it was found that the appellant is in possession of more area and therefore the said order was modified on 6 5 1982 and excess area was granted to the appellant on payment of rs 31360 which appellant had paid on 17 5 1982 in government treasury and thereby the deputy collector and assistant settlement commissioner pune granted the excess land to the appellant and thereafter the dispute started between the parties.
in the impugned order division bench made it clear that since the dispute between the parties was in respect of the area as to what has been purchased in auction sale by gulabai desai and what is the area allotted to the appellant by the orders of the deputy collector and deputy custodian of evacuee properties the appellant requested the bench not to enter into the merits on this question in this lpa since the parties may prosecute their remedies in the civil court for such adjudication and therefore that aspect was not considered by the high court.
however in the facts of the conflicting claims the appellant made grievance to the deputy collector and the deputy custodian of evacuee properties in respect of the mutation made in favour of the respondent gulabai and other respondents and therefore by order dated 18 9 1984 the deputy collector and deputy custodian of evacuee properties pune directed the sub divisional officer haveli sub division to take up the case in revision under section 257 of maharashtra land revenue code and pass necessary orders.
in view of these directions the sub divisional officer haveli sub division pune initiated proceeding rts revision 14 of 1984 and by order dated 30 7 1985 cancelled the mutation entry no 1836 which comprises land admeasuring 7897 sq yards and directed necessary corrections in the record as per the observations made in the order.
it appears that the said order was taken in appeal by the respondent and the matter was remanded to the sub divisional officer.
after remand the sub divisional officer conducted inquiry and again passed an order on 29 10 1987 and confirmed the earlier order.
therefore the rts appeal no 128 of 1987 was preferred before the collector which was disposed off by the additional collector on 13 7 1993 by the said order the order of the third sub divisional officer was maintained.
however further inquiry as directed by the sdo was to be conducted.
since the mutation entry no 1836 was cancelled by above order the talathi gave effect to these orders and effected the mutation entry no 2176 and showed the disputed properties in the name of the collector and deputy custodian of evacuee properties.
the directions were issued by the collector to the tahsildar to place the appellant in possession of the property as per the orders of the deputy collector and the deputy custodian of evacuee properties.
however instead of giving effect to those orders it appears that the revenue officers at tahsil level effected two mutations viz mutation no 2377 and 2394 by mutation entry no 2377 the name of respondent was again mutated in the record and by the mutation entry no 2394 the name of genu kadu was mutated in the record.
since the collector noticed on complaint that the orders of the collector has been bypassed or surpassed by the subordinate revenue officers the collector by order dated 12 7 1999 directed the sdo to take these mutations namely mutation entry no 2377 and 2394 in revision and therefore the sub divisional officer maval division has taken these mutations in revision bearing rts revision no 12 of 1999 the said revision was decided by the sub divisional officer at maval on 28 1 2000 and those mutations were cancelled.
being aggrieved by the order passed in the said revision respondent no 2 lalwani preferred rts appeal no 81 of 2000 and the respondent no 3 genu kadu preferred rts appeal no 114 of 2000 both.
these rts appeals were heard by the additional collector pune and by order dated 28 5 2001 the addl.
collector pune dismissed the said appeals and confirmed the order of the sub divisional officer maval.
aggrieved by the said order of the additional collector respondent no 2 preferred rts revision no 330 of 2001 under section 257 of maharashtra land revenue code1966 before the additional commissioner pune division pune.
the said revision was decided by the additional commissioner pune by order dated 22 11 2001 and the said revision was dismissed.
respondent no 2 challenged this order of the additional commissioner by filing the proceeding rts 3402 pra kra 309 l 6 by way of second revision before the revenue minister for state and the said proceeding was decided by the minister for state on 18 10 2002 the revenue minister allowed the said proceeding and set aside the orders passed by the sub divisional officer maval dated 28 1 2000order dated 28 5 2001 of additional collector pune and of additional commissioner dated 22 11 2001and thus restored the position as reflected by the mutation entries nos 1836 and 2377 and 2394 thus all the entries in favour of the respondents were protected and maintained by the order of the state minister for revenue.
appellant challenged the order dated 19 10 2002 passed by the minister by filing a writ petition which was dismissed by learned single judge of the bombay high court.
thereafter the appellant filed letters patent appeal which was also dismissed by the division bench holding that when the state minister for revenue entertained the matter he was possessed of jurisdiction under section 257 of the maharashtra land revenue code and therefore the order passed by him under the said authority is within his jurisdiction power and competence.
the division bench observed thus.
we record our finding.
that under section 257 of the maharashtra land revenue code more than one revision is possible.
now coming to the facts of the present case the mutation entry no 1836 was in fact certified.
however the sub divisional officer has taken the said mutation in revision in rts revision no 14 of 1984 and has set aside the mutation by order dated 30 7 1985 there was appeal as against that order which was remanded.
it was again decided by the sub divisional officer on 29 10 1987 and the said mutation was set aside.
there was rts appeal no 128 of 1987 which was decided on 13 7 1993 in view of these orders the mutation entry no 1836 was cancelled and mutation entry no 2176 was effected whereby the name of the collector and the deputy collector of the evacuee property was entered into 7 x 12 extracts.
it is further found that when the orders of the collector directing to put the petitioner into possession were not obeyed by the subordinate revenue officers and the revenue officers effected the mutation entry no 2377 in favour of the respondent nos 3 gulabai desai and mutation entry no 2394 in favour of the respondent no 5 genu kadu and thereafter for second time the special divisional officer maval has exercised the revisional powers under section 257 and initiated proceeding rts revision 12 of 1999 in respect of the mutation entry no 2377 and 2394 the rts revision 1299 was allowed on 28 1 2000 as against that two rts appeals namely rts appeal no 81 of 2000 and rts appeal no 114 of 2000 were preferred by the respondent.
they were decided on 28 5 2001 as against that the rts revision no 330 of 2001 was preferred.
the same was dismissed.
as against that the rts proceeding bearing no 3402 pra.
kra 309 l 6 was preferred before the minister for state.
all these proceedings will show that twice the sub divisional officer has exercised the revisional power under section 257 at the directions of the collector namely the rts revision no 14 of 1984 and rts revision no 12 of 1999 it will further reveal that the appeals as against the rts revision no 14 of 1984 was preferred by the parties in view of the provisions of section 247 and 249 sub section 2 it will equally appear that when the orders were passed in revision application no 12 of 1999 before the sub divisional officer in exercise of the powers under section 257 the parties have preferred two rts appeals in view of the provisions of section 247 and 249 sub section 2 not only that thereafter the rts revision application no 330 of 2001 was also preferred before the commissioner and if the view is taken that the second revision is not tenable then in that circumstances since the first order passed in rts revision no 12 of 1999 is a revisional order this second revision before the commissioner being rts revision no 330 of 2001 would not have been tenable.
however said revision rts 330 of 2001 is tenable since the appeals as provided under section 247 and 249 intervene in between the revisional orders passed by the sub divisional officer and the commissioner.
thus in short we find that the scheme under maharashtra land revenue code is quite different scheme and it permits more than one revision.
thus viewed from any angle we find that the state minister for revenue when he entertained the matter state minister for revenue was possessed of jurisdiction under section 257 of the maharashtra land revenue code and therefore the order passed by him under the said authority is within his jurisdiction power and competence.
hence the present appeal by special leave.
mr huzefa ahmadi learned senior counsel appearing for the appellant mainly attacked the revisional power exercised by the minister concerned in purported exercise of jurisdiction under section 257 of the maharashtra land revenue code.
in the alternative learned senior counsel submitted that even if it were to be admitted without prejudice that second revision is maintainable the minister being the revisional authority should not have interfered with the findings recorded by all the six revenue authorities.
referring the decision of the bombay high court in the case of sambappa vs state of maharashtra 2002 scc on line bombay 1222learned counsel submitted that when the sub divisional officer additional collector and additional commissioner had concurrently recorded finding in favour of the appellant by observing that the revenue record is not in consonance with the factual aspect and they have directed to correct the revenue entries in such a case the second revisional authority exceeded its jurisdiction in entertaining the said application and interfering with the finding of fact.
section 257 makes it clear that a revisional authority has to consider only the legality and propriety of the decision.
learned counsel referring the revisional jurisdiction of the high court under section 115 of the code of civil procedure tried to impress us that when the power of revision is given to the district judge then the high court can not entertain second revision petition under section 115 of the code.
learned counsel relied upon the decision of this court in the case of state of kerala vs k m charia abdulla co air 1965.
sc 1585 1964 indlaw sc 353 and hari shankar vs rao girdhari lal chowdhury air 1963 sc 698 1961 indlaw sc 157.
ahmadi learned senior counsel further submitted that a request was made to the high court not to enter into the merit of the case and to confine itself to the question whether a second revision was at all maintainable in the light of the ratio in harishankar 's case 1961.
indlaw sc 157 supra1962 suppl 1 scr 933.
1961 indlaw sc 157hiralal kapur vs prabhu choudhury1988 2 scc 172 1988 indlaw sc 342 and helper girdharbhai vs saiyed mohmad mirasaheb kadri and others1987 3 scc 538 1987 indlaw sc 28281 learned counsel also drew our attention to the decision of this court in dharampal vs ramshri1993 1 scc 435 1993 indlaw sc 1325 where this court held.
that a second revision to the high court under section 482 of the cr.
p c was not permitted.
lastly mr ahmadi submitted that the second revision would not lie under section 257 of the revenue code since section 259 of the code provides an opportunity to the state government to only correct any final order while exercising power under the provisions of section 257 i e with regard to its legality and propriety.
ravindra srivastava learned senior counsel appearing for the respondent state at the very outset submitted that the appellant conceded before the high court not to decide the merit of the case.
the only point raised before the high court was with regard to the maintainability of second revision before the state government under section 257 of the revenue code.
learned counsel submitted that section 257 expressly confers power of revision on the state government which power is coupled with power of control and superintendence.
learned counsel submitted that the commissioner or the additional commissioner is not equal in a rank but subordinate to the state government.
learned counsel submitted that the state government is the supreme revenue authority and existence of more than one appeal or revision to an aggrieved party is not per se abhorrent to any legal principle depends upon the statute.
srivastava then contended that the high court correctly analysed and appreciated the scheme of the code vis a vis judicial review in revenue matters.
learned counsel put heavy reliance on the decision of this court in the case of ishwar singh vs.
state of rajasthan and others2005.
2 scc 334 2005 indlaw sc 6 for the proposition that there can be a second revision under the same provision of the statute.
the only question that falls for consideration is as to whether a second revision under section 257 is maintainable and that whether the state government exceeds its jurisdiction in entertaining the second revision.
before we proceed to decide the aforesaid question we would like to refer the relevant provisions of the maharashtra land revenue code 1966.
section 231 defines the revenue officer as under 2 31 revenue officer means every officer of any rank whatsoever appointed under any of the provisions of this code and employed in or about the business of the land revenue or of the surveys assessment accounts or records connected therewith.
chapter ii deals with the revenue officers their powers and duties.
sections 56 and 7 reads as under 5 chief controlling authority in revenue matters.
the chief controlling authority in all matters connected with the land revenue in his division shall vest in the commissioner subject to the superintendence direction and control of the state government.
6 revenue officers in division.
the state government shall appoint a commissioner of each division and may appoint in a division an additional commissioner and so many assistant commissioners as may be expedient to assist the commissioner provided that nothing in this section shall preclude the appointment of the same officer as commissioner for two or more divisions.
7 revenue officers in district 1the state government shall appoint a collector for each district including the city of bombay who shall be in charge of the revenue administration there of and a tahsildar for each taluka who shall be the chief officer entrusted with the local revenue administration of a taluka.
the state government may appoint one or more additional collectors and in each district including the city of bombay and so many assistant collectors and deputy collectors with such designations such as firstsecondsuper numeraryetc.
assistants as may be expressed in the order of their appointmentone or more naib tahsildars in a taluka and one or more additional tahsidars or naib tahsildars therein and such other persons having such designations to assist the revenue officers as it may deem expedient.
3 subject to the general orders of the state government the collector may place any assistant or deputy collector in charge of one more sub divisions of a district or may himself retain charge thereof.
such assistant or deputy collector may also be called a sub divisional officer.
the collector may appoint to each district as many persons as he thinks fit to be circle officers and circle inspectors to be in charge of a circle and one or more talathis for a saza and one or more kotwals or other village servants for each village or group of villages as he may deem fit.
section 11 of the code is worth to be quoted herein.
below 11 subordination of officers.
1 all revenue officers shall be subordinate to the state government.
2 unless the state government directs otherwise all revenue officers in a division shall be subordinate to the commissioner and all revenue officers 2in a district including the city of bombay shall be subordinate to the collector.
3unless the state government directs otherwise all other revenue officers including survey officers shall be subordinated the one to the other in such order as the state government may direct.
sections 13 and 14 deal with the powers and duties of all revenue officers.
from reading of the aforesaid provisions it is manifest that the state government makes appointment of the revenue officers including the commissioner and the chief controlling authorities in the revenue matters.
section 5 makes it clear that the chief controlling authority in all matters connected with the land revenue in his division shall vest with the commissioner subject to superintendence directions and control of the state government.
section 11 provides that all revenue officers shall be subordinate to the state government.
it is therefore clear that in revenue matters the state government is the supreme revenue authority.
in the present case we noticed the scheme of the code in the matters of hearing and disposal of appeals revision and review.
section 247 deals with the appeal and appellate authorities which reads as under 247 appeal and appellate authorities.
in the absence of any express provisions of this code or of any law for the time being in force to the contrary an appeal shall lie from any decision or order passed by a revenue or survey officer specified in column 1 of the schedule e under this code or any other law for the time being in force to the officer specified in column 2 of that schedule whether or not such decision or order may itself have been passed on appeal from the decision of order of the officer specified in column 1 of the said schedule.
provided that in no case the number of appeals shall exceed two 2 when on account of promotion of change of designation an appeal against any decision or order lies under this section to the same officer who has passed the decision or order appealed against the appeal shall lie to such other officer competent to decide the appeal to whom it may be transferred under the provisions of this code.
section 248 is also relevant which provides the forum of appeal to the state government.
similarly section 249 makes provision of appeal against the review or revision.
the schedule preferred to in section 227 mentions the authorities before whom appeal would lie.
the schedule appended to the code is as follows schedule e see section 247.
section 257 is the relevant provision which deals with the power of state government and of certain revenue and survey officers to call for and examine the records and proceedings of subordinate officers.
section 257 reads as under 257 power of state government and of certain revenue and survey officers to call for and examine records and proceedings of subordinate officers.
the state government and any revenue of survey officer not inferior in rank to an assistant or deputy collector or a superintendent of land records in their respective departments may call for and examine the record of any inquiry or the proceedings of any subordinate revenue or survey officer for the purpose of satisfying itself or himself as the case may be as to the legality or propriety of any decision or order passed and as to the regularity of the proceedings of such officer.
a tahsildar a naib tahsildar and a district inspector of land records.
may in the same manner call for and examine the proceedings of any officer subordinate to them in any matter in which neither a formal nor a summary inquiry has been held.
3 if in any case it shall appear to the state government or any officer referred to in sub section 1 or sub section 2 that any decision or order or proceedings so called for should be modified annulled or reversed it or he may pass such order thereon as it or he deems fit.
provided that the state government or such officer shall not vary or reverse any order affecting any question of right between private persons without having to the parties interested notice to appear and to be heard in support of such order.
provided further that an assistant of deputy collector shall not himself pass such order in any matter in which a formal inquiry has been held but shall submit the record with his opinion to the collector who shall pall such order thereon as he may deem fit.
a bare reading of the aforesaid provision would show that the provision uses the word and for state government but for other revenue officers.
it uses the word or.
the language and the words used in the said provision suggest that jurisdiction of the state government is concurrent with the jurisdiction of other revenue officers in deciding the revision.
hence even if one party goes to the commissioner in revision the state government can still be approached under section 257 for revision.
the power of revision exercised by any revenue officer including the commissioner is a proceeding by a subordinate officer and the state government can satisfy itself as to the legality and propriety of any decision including the order passed in revision by the revenue officers.
further in view of the fact that state government itself appoints the revenue officers including the commissioner under the scheme of the code and all revenue officers are subordinate to the state government as per section 11 of the act and even the chief controlling authority in all matters connected with the land revenue in his division is vested with the commissioner they are subject to the superintendence direction and control of the state government as provided under section 5 of the code.
the power of the state government has further been widened by section 259 of the code which reads as under 259 rules as to decisions or orders expressly made final whenever in this code it is provided that a decision or order shall be final or conclusive such provision shall mean that no appeal lies from any such decision or order but it shall be lawful to the state government alone to modify annul or reverse any such decision or order under the provision of section 257.
the aforesaid provision makes it clear that even if the decision is considered to be final the state government 's power to call for and examine the record and proceedings of subordinate officers is saved.
in other words the state government in exercise of its revisional as well as general power of superintendence and control can call for any record of proceedings and consider the legality and propriety of the orders passed by the revenue officers under section 247 or 257 of the code.
from perusal of the entire scheme of the code including section 257it is manifest that the revisional powers are not only exercisable by the state government but also by certain other revenue officers.
there is nothing in the code to suggest that if these revisional powers are exercised by a revenue officer who has jurisdiction it can not be further exercised by a superior revenue officer or by the state government.
a fair reading of sections 257 and 259 suggests that if revisional powers are exercised by a revenue officer having jurisdiction to do so further revisional power can be exercised by the superior officer or by the state government.
a similar question came for consideration before this court in the case of ishwar singh vs 2 scc 334 under the rajasthan cooperative societies act1965 in that ac t by section 128 power was conferred upon the state government and the registrar to call for and examine the records of any enquiry or proceedings of any other matter of any officer subordinate to them for the purpose of satisfying themselves as to the legality or propriety of any decision or order passed by such officer.
it was submitted by the counsel that section 128 related to two authorities i e the state government and the registrar.
in fact the two authorities are interchangeable.
if one authority exercises revisional power the other authority logically can not have exercised such power.
hence it was argued that second revision was not maintainable.
rejecting the submission this court held 20 sub section 2 of section 124 provides that if the decision or order is made by the registrar appeal lies to the government and if the decision or order is made by any other person or a cooperative society the appeal lies to the registrar.
therefore under chapter xiii a clear distinction is made between the state government and the registrar.
the test is whether the two authorities with concurrent revisional jurisdiction are equal in rank.
it is therefore not correct as contended by learned counsel for the appellant that the two authorities i e the state government and the registrar are interchangeable.
the power of the government and the registrar in terms of section 128 excludes matters which are covered by section 125 i e revision by the tribunal.
considering the entire scheme of the code and the provisions contained in sections 257 and 259we are of the definite opinion that the minister concerned of the state government can entertain second revision to satisfy the legality and propriety of the order passed by the revenue officer.
the division bench of the bombay high court has elaborately discussed the question and passed the impugned order holding that section 257 confers jurisdiction to the state government to entertain its revision against the order passed by any revenue officer either in appeal or in revision.
we find no infirmity in the impugned order passed by the high court.
hence this appeal has no merit which is accordingly dismissed.
before parting with the order we must make it clear that in view of the request made by the appellant before the high court not to enter into the merit of the case since the party may prosecute their remedies in the civil court for adjudication we have not expressed any opinion with regard to the merit of the case of the parties.
the parties may prosecute their remedies in civil court in accordance with law.
petition dismissed.
| FACTS
survey nos.118,328 and 351 of lonavala were originally owned by one haji habib tar mohammed janu.
the said haji mohammed migrated to pakistan and while going to pakistan,he sold his property to one smt.hajrabi haji yusuf on 4.6.1949.
however,this transaction was cancelled by the collector and custodian of evacuee property on 17.4.1949 as per section 8(i) of the evacuee properties act and these lands were accordingly entered as evacuee property by the tahsildar,maval on 26.10.1949.
it appears that in cts no.129,130-a,130-b and 133,apart from vacant land there is a bungalow no.52-habib villa.
it appears that the regional settlement commissioner placed this property for auction through government auctioner and one gulabbai desai purchased the said property in auction for a consideration of rs.16,750/- on 17.5.1956 and,accordingly,sale certificate was issued by the regional settlement commissioner,bombay on behalf of the government.
in the said sale certificate the c.t.s.no 129,130-a,130-b and 133 of village lonavala were mentioned.
on the basis of the sale certificate the mutation entry no.1836 was effected in the village record in favour of gulabai desai,and thereby her name was entered in survey nos.118/1b and 328 of village lonavala to the extent of 29.30 acres and 70 acres respectively.
thereafter,gulabai sold cts no.133 admeasuring 33 gunthas on 24.4.1977 to respondent no.3 genu kadu.
the said gulabai also gifted her remaining area from this survey numbers to her grandson anil gajanan desai on 15.1.1979,who in turn has sold his properties to respondent no.2 -prem hasmatraj lalwani in 1980.
the survey nos.118/2 and 351,being evacuee properties,were allotted to the appellant in the year 1956.
later on,it was found that the appellant is in possession of more area and,therefore,the said order was modified and excess area was granted to the appellant on payment of rs.31,360/-,which appellant had paid on 17.5.1982 in government treasury and thereby the deputy collector and assistant settlement commissioner,pune granted the excess land to the appellant,and thereafter the dispute started between the parties.
being aggrieved by the order passed in the revision,respondent no.2 lalwani preferred rts appeal no.81 of 2000 and the respondent no.3 genu kadu preferred rts appeal no.114 of 2000.
both these rts appeals were heard by the additional collector,pune and by order the addl.collector,pune dismissed the said appeals and confirmed the order of the sub divisional officer,maval.
aggrieved by the said order of the additional collector,respondent no.2 preferred rts revision no.330 of 2001 under section 257 of maharashtra land revenue code,1966 before the additional commissioner,pune division,pune.
the said revision was decided by the additional commissioner,pune and it was dismissed.
appellant challenged the order dated 19.10.2002 passed by the minister by filing a writ petition,which was dismissed by learned single judge of the bombay high court.
thereafter,the appellant filed letters patent appeal,which was also dismissed by the division bench holding that when the state minister for revenue entertained the matter,he was possessed of jurisdiction under section 257 of the maharashtra land revenue code and,therefore,the order passed by him under the said authority is within his jurisdiction,power and competence.
ARGUMENT
it is the appellant's case that his father shri nawoosingh panjumal panjwani was a displaced person who migrated from pakistan to india during the period of partition and the appellant's family while in pakistan was having agricultural land over there admeasuring 4 acres 10 gunthas.after migration,the family took shelter at refugee camp of pimpri,pune in maharashtra.
in view of enactment of displaced persons (compensation and rehabilitation) act,1954 by the union of india,the immovable properties left behind by muslims who had migrated to pakistan were acquired and the same was distributed to displaced persons as a "compensation pool".
referring the decision of the bombay high court in the case of sambappa vs.state of maharashtra [(2002) scc on line,bombay 1222],learned counsel submitted that when the sub-divisional officer,additional collector and additional commissioner had concurrently recorded finding in favour of the appellant by observing that the revenue record is not in consonance with the factual aspect and they have directed to correct the revenue entries,in such a case,the second revisional authority exceeded its jurisdiction in entertaining the said application and interfering with the finding of fact.
section 257 makes it clear that a revisional authority has to consider only the legality and propriety of the decision.
learned counsel referring the revisional jurisdiction of the high court under section 115 of the code of civil procedure tried to impress us that when the power of revision is given to the district judge,then the high court cannot entertain second revision petition under section 115 of the code.
ISSUE
whether a second revision under section 257 is maintainable and that whether the state government exceeds its jurisdiction in entertaining the second revision?
ANALYSIS
the state government makes appointment of the revenue officers including the commissioner and the chief controlling authorities in the revenue matters.
section 5 makes it clear that the chief controlling authority in all matters connected with the land revenue in his division shall vest with the commissioner,subject to superintendence,directions and control of the state government.
section 11 provides that all revenue officers shall be subordinate to the state government.
it is,therefore,clear that in revenue matters the state government is the supreme revenue authority.
the power of revision exercised by any revenue officer including the commissioner is a proceeding by a subordinate officer and the state government can satisfy itself as to the legality and propriety of any decision including the order passed in revision by the revenue officers.
state government itself appoints the revenue officers including the commissioner under the scheme of the code and all revenue officers are subordinate to the state government as per section 11 of the act,and even the chief controlling authority in all matters connected with the land revenue in his division is vested with the commissioner,they are subject to the superintendence,direction and control of the state government as provided under section 5 of the code.
the state government's power to call for and examine the record and proceedings of subordinate officers is saved.
the revisional powers are not only exercisable by the state government but also by certain other revenue officers.
there is nothing in the code to suggest that if these revisional powers are exercised by a revenue officer who has jurisdiction,it cannot be further exercised by a superior revenue officer or by the state government.
in the case of ishwar singh v. state of rajasthan and others,(2005) 2 scc 334 under the rajasthan cooperative societies act,1965, this court held:- sub-section (2) of section 124 provides that if the decision or order is made by the registrar,appeal lies to the government and if the decision or order is made by any other person,or a cooperative society,the appeal lies to the registrar.
therefore,under chapter xiii a clear distinction is made between the state government and the registrar.
the test is whether the two authorities with concurrent revisional jurisdiction are equal in rank.
it is,therefore,not correct as contended by learned counsel for the appellant that the two authorities i.e.the state government and the registrar are interchangeable.
the power of the government and the registrar in terms of section 128 excludes matters which are covered by section 125 i.e. revision by the tribunal.
STATUTE
section 2(31) of the maharashtra land revenue code 1966 defines the revenue officer as that “revenue officer" means every officer of any rank whatsoever appointed under any of the provisions of this code, and employed in or about the business of the land revenue or of the surveys, assessment, accounts, or records connected therewith.
chapter ii deals with the revenue officers,their powers and duties.
section 5 of the maharashtra land revenue code 1966 - chief controlling authority in revenue matters.
section 6 of the maharashtra land revenue code 1966 -revenue officers in division.
section 7 of the maharashtra land revenue code 1966 revenue officers in district.
section 11 of the maharashtra land revenue code 1966- subordination of officers.
sections 13 and 14 of the maharashtra land revenue code 1966 deal with the powers and duties of all revenue officers.
section 247 of the maharashtra land revenue code 1966 deals with the appeal and appellate authorities.
section 248 of the maharashtra land revenue code 1966 provides for the forum of appeal to the state government.
section 249 of the maharashtra land revenue code 1966 makes provision of appeal against the review or revision.
section 257 of the maharashtra land revenue code 1966- power of state government and of certain revenue and survey officers to call for and examine records and proceedings of subordinate officers.
section 259 of the maharashtra land revenue code 1966- rules as to decisions or orders expressly made final.
| FACTS
survey nos.118,328 and 351 of lonavala were originally owned by one haji habib tar mohammed janu.
the said haji mohammed migrated to pakistan and while going to pakistan,he sold his property to one smt.hajrabi haji yusuf on 4.6.1949.
however,this transaction was cancelled by the collector and custodian of evacuee property on 17.4.1949 as per section 8(i) of the evacuee properties act and these lands were accordingly entered as evacuee property by the tahsildar,maval on 26.10.1949.
it appears that these survey numbers were also given c.t.s.no.129,130-a,130-b and 133.
it appears that in cts no.129,130-a,130-b and 133,apart from vacant land there is a bungalow no.52-habib villa.
it appears that the regional settlement commissioner placed this property for auction through government auctioner and one gulabbai desai purchased the said property in auction for a consideration of rs.16,750/- on 17.5.1956 and,accordingly,sale certificate was issued by the regional settlement commissioner,bombay on behalf of the government.
in the said sale certificate the c.t.s.no 129,130-a,130-b and 133 of village lonavala were mentioned.
on the basis of the sale certificate the mutation entry no.1836 was effected in the village record in favour of gulabai desai,and thereby her name was entered in survey nos.118/1b and 328 of village lonavala to the extent of 29.30 acres and 70 acres respectively.
thereafter,gulabai sold cts no.133 admeasuring 33 gunthas on 24.4.1977 to respondent no.3 genu kadu.
the said gulabai also gifted her remaining area from this survey numbers to her grandson anil gajanan desai on 15.1.1979,who in turn has sold his properties to respondent no.2 -prem hasmatraj lalwani in 1980.
the survey nos.118/2 and 351,being evacuee properties,were allotted to the appellant in the year 1956.
later on,it was found that the appellant is in possession of more area and,therefore,the said order was modified and excess area was granted to the appellant on payment of rs.31,360/-,which appellant had paid on 17.5.1982 in government treasury and thereby the deputy collector and assistant settlement commissioner,pune granted the excess land to the appellant,and thereafter the dispute started between the parties.
being aggrieved by the order passed in the revision,respondent no.2 lalwani preferred rts appeal no.81 of 2000 and the respondent no.3 genu kadu preferred rts appeal no.114 of 2000.
both these rts appeals were heard by the additional collector,pune and by order the addl.collector,pune dismissed the said appeals and confirmed the order of the sub divisional officer,maval.
aggrieved by the said order of the additional collector,respondent no.2 preferred rts revision no.330 of 2001 under section 257 of maharashtra land revenue code,1966 before the additional commissioner,pune division,pune.
the said revision was decided by the additional commissioner,pune and it was dismissed.
appellant challenged the order dated 19.10.2002 passed by the minister by filing a writ petition,which was dismissed by learned single judge of the bombay high court.
thereafter,the appellant filed letters patent appeal,which was also dismissed by the division bench holding that when the state minister for revenue entertained the matter,he was possessed of jurisdiction under section 257 of the maharashtra land revenue code and,therefore,the order passed by him under the said authority is within his jurisdiction,power and competence.
ARGUMENT
it is the appellant's case that his father shri nawoosingh panjumal panjwani was a displaced person who migrated from pakistan to india during the period of partition and the appellant's family while in pakistan was having agricultural land over there admeasuring 4 acres 10 gunthas.after migration,the family took shelter at refugee camp of pimpri,pune in maharashtra.
in view of enactment of displaced persons (compensation and rehabilitation) act,1954 by the union of india,the immovable properties left behind by muslims who had migrated to pakistan were acquired and the same was distributed to displaced persons as a "compensation pool".
referring the decision of the bombay high court in the case of sambappa vs.state of maharashtra [(2002) scc on line,bombay 1222],learned counsel submitted that when the sub-divisional officer,additional collector and additional commissioner had concurrently recorded finding in favour of the appellant by observing that the revenue record is not in consonance with the factual aspect and they have directed to correct the revenue entries,in such a case,the second revisional authority exceeded its jurisdiction in entertaining the said application and interfering with the finding of fact.
section 257 makes it clear that a revisional authority has to consider only the legality and propriety of the decision.
learned counsel referring the revisional jurisdiction of the high court under section 115 of the code of civil procedure tried to impress us that when the power of revision is given to the district judge,then the high court cannot entertain second revision petition under section 115 of the code.
ISSUE
whether a second revision under section 257 is maintainable and that whether the state government exceeds its jurisdiction in entertaining the second revision?
ANALYSIS
the state government makes appointment of the revenue officers including the commissioner and the chief controlling authorities in the revenue matters.
section 5 makes it clear that the chief controlling authority in all matters connected with the land revenue in his division shall vest with the commissioner,subject to superintendence,directions and control of the state government.
section 11 provides that all revenue officers shall be subordinate to the state government.
it is,therefore,clear that in revenue matters the state government is the supreme revenue authority.
the power of revision exercised by any revenue officer including the commissioner is a proceeding by a subordinate officer and the state government can satisfy itself as to the legality and propriety of any decision including the order passed in revision by the revenue officers.
state government itself appoints the revenue officers including the commissioner under the scheme of the code and all revenue officers are subordinate to the state government as per section 11 of the act,and even the chief controlling authority in all matters connected with the land revenue in his division is vested with the commissioner,they are subject to the superintendence,direction and control of the state government as provided under section 5 of the code.
the state government's power to call for and examine the record and proceedings of subordinate officers is saved.
the revisional powers are not only exercisable by the state government but also by certain other revenue officers.
there is nothing in the code to suggest that if these revisional powers are exercised by a revenue officer who has jurisdiction,it cannot be further exercised by a superior revenue officer or by the state government.
in the case of ishwar singh v. state of rajasthan and others,(2005) 2 scc 334 under the rajasthan cooperative societies act,1965, this court held:- sub-section (2) of section 124 provides that if the decision or order is made by the registrar,appeal lies to the government and if the decision or order is made by any other person,or a cooperative society,the appeal lies to the registrar.
therefore,under chapter xiii a clear distinction is made between the state government and the registrar.
the test is whether the two authorities with concurrent revisional jurisdiction are equal in rank.
it is,therefore,not correct as contended by learned counsel for the appellant that the two authorities i.e.the state government and the registrar are interchangeable.
the power of the government and the registrar in terms of section 128 excludes matters which are covered by section 125 i.e. revision by the tribunal.
STATUTE
section 2(31) of the maharashtra land revenue code 1966 defines the revenue officer as that “revenue officer" means every officer of any rank whatsoever appointed under any of the provisions of this code, and employed in or about the business of the land revenue or of the surveys, assessment, accounts, or records connected therewith.
chapter ii deals with the revenue officers,their powers and duties.
section 5 of the maharashtra land revenue code 1966 - chief controlling authority in revenue matters.
section 6 of the maharashtra land revenue code 1966 -revenue officers in division.
section 7 of the maharashtra land revenue code 1966 revenue officers in district.
section 11 of the maharashtra land revenue code 1966- subordination of officers.
sections 13 and 14 of the maharashtra land revenue code 1966 deal with the powers and duties of all revenue officers.
section 247 of the maharashtra land revenue code 1966 deals with the appeal and appellate authorities.
section 248 of the maharashtra land revenue code 1966 provides for the forum of appeal to the state government.
section 249 of the maharashtra land revenue code 1966 makes provision of appeal against the review or revision.
section 257 of the maharashtra land revenue code 1966- power of state government and of certain revenue and survey officers to call for and examine records and proceedings of subordinate officers.
section 259 of the maharashtra land revenue code 1966- rules as to decisions or orders expressly made final.
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"this appeal is preferred against the judgment dated 19 8 2011 passed by the high court of punjab an(...TRUNCATED) | "FACTS\nthis appeal is preferred against the judgment passed by the high court of punjab and haryana(...TRUNCATED) | "FACTS\non 18.11.1994, at about 8.00 a.m. in the morning the complainant jagdish (pw-5) along with h(...TRUNCATED) |
"this appeal is by special leave against the judgment and decree of the high court of kerala which d(...TRUNCATED) | "FACTS\nit was the appellant's case that he had been in occupation of the said 160 acres of cherikka(...TRUNCATED) | "FACTS\nit was the appellant's case that he had been in occupation of the said 160 acres of cherikka(...TRUNCATED) |
"the present appeal arises out of the judgment and order dated 01 07 2002 passed by the high court o(...TRUNCATED) | "FACTS\non 19.04.1988 satish narayan sawant, the appellant (accused no. 1) along with two other accu(...TRUNCATED) | "FACTS\non 19.04.1988,satish narayan sawant, the appellant (accused no. 1) along with two other accu(...TRUNCATED) |
"this appeal with special leave is directed against the judgment and order of the labour appellate t(...TRUNCATED) | "FACTS\nthis appeal with special leave is directed against the judgment and order of the labour appe(...TRUNCATED) | "FACTS\nthis appeal with special leave is directed against the judgment and order of the labour appe(...TRUNCATED) |
"these two appeals involve identical questions and therefore are disposed of by this common judgment(...TRUNCATED) | "FACTS\nthe appellants question correctness of the judgment rendered by a division bench of the madr(...TRUNCATED) | "FACTS\nthe appellants question correctness of the judgment rendered by a division bench of the madr(...TRUNCATED) |
"interpretation and or application of the provisions of the gujarat town planning and urban developm(...TRUNCATED) | "FACTS\nthe government of gujarat in exercise of its power conferred upon it u/s.65 of the gujarat t(...TRUNCATED) | "FACTS\nplot nos.17/7 and 17/8 were owned by respondent no.4 herein.\nappellant was a tenant under t(...TRUNCATED) |
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