Jharkhand High Court
Dulal Sengupta vs State Of Jharkhand & Ors. on 12 September, 2012
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 5034 of 2006
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Bhola Choudhary --- --- --- Petitioner
Versus
The State of Jharkhand & others --- ---- --- Respondents
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CORAM: The Hon'ble Mr. Justice Aparesh Kumar Singh
For the Petitioner: Mr. Rohit Roy, Advocate
For the State: Mr. V.K. Prasad, SC (L&C)
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5/ 12.09.2012The petitioner was aggrieved by the notice dated 7th of August 2006 issued by the Collector, Dhanbad under the provisions of section 6(2) of the Bihar Public Land Encroachment Act, 1956. The writ petition was preferred alleging that the impugned action has been taken without taking into account the objection filed by the petitioner and no final order was served upon the petitioner under the relevant provisions of section 6(1)(c) of the Act of 1956 for removal of the alleged encroachment.
2. Respondents had appeared earlier and filed a counter affidavit stating that a proceeding under the Bihar Public Land Encroachment Act, 1956 was initiated for removal of encroachment and after giving opportunity of hearing, measurement was made and it was found that the petitioner had encroached 532 sq.ft of the public land, whereafter the impugned notice was issued for removal of the alleged encroachment. The stand of the petitioner that a notice under the Bihar Building (Lease, Rent and Eviction) Control Act, was issued, was strongly contested stating clearly that a proceeding vide B.P.L.E. Case No. 03 of 2004-05 was initiated in the court of Circle Officer, Dhanbad whereafter, the petitioner was found to have encroached over the public land and action contemplated under the Act was taken for removal of the said encroachment, against which the petitioner straightaway moved this court without exhausting alternative remedy available to him.
3. On the strong contest of the petitioner, respondents were directed to produce the relevant records showing whether proceedings were initiated under the B.P.L.E. Act and notices were issued upon the petitioner or not? Today, counsel for the respondent State has produced the records containing the notices issued upon the various persons and showing service of notice upon the petitioner Bhola Choudhary, Son of Sri Tileshwar Choudhary, which indicates that after affording opportunity to the petitioner and others, order dated 12th July 2006 was passed in respect of number of persons including this petitioner.
4. Having gone through the order dated 12th July 2006, it appears that the impugned notices were issued pursuant to the order passed under the relevant provisions of B.P.L.E. Act. However, Learned counsel for the petitioner submits that the copy of the said order was never served upon him and respondent State may be directed to serve a copy of the said order upon him so as to enable him to prefer an appeal against the order in question before an appropriate forum. It appears that after initiating proceeding under the provisions of B.P.L.E. Act, orders were passed leading to issuance of impugned notices, which has been challenged by the petitioner in the present case without pursuing the alternative remedy.
5. In the circumstances, respondent State is directed to serve a copy of the order upon the counsel for the petitioner within two days. Thereafter, it would be open to the petitioner to avail of the alternative remedy before the appellate forum under the Act of 1956. However, it is submitted by the counsel for the petitioner that the appeal may be barred by limitation and he would prefer appeal within a period of four weeks from the date of service of copy of the order upon him. In the circumstances, it is observed that the appellate authority may consider the question of delay sympathetically in view of the pendency of this writ application. It is expected that the respondent would not take any coercive steps for the period of four weeks by which time petitioner undertakes to prefer his appeal against the order dated 12.07.2006.
With the aforesaid observations and directions, this writ petition is disposed of.
(Aparesh Kumar Singh, J) Ranjeet/ IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (C) No. 7470 of 2006
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Dulal Sengupta --- --- --- Petitioner
Versus
The State of Jharkhand & others --- ---- --- Respondents
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CORAM: The Hon'ble Mr. Justice Aparesh Kumar Singh
For the Petitioner: Mr. Rahul Gupta, Mr. Niyati Sah &
Mr. R.K. Gupta, Advocates
For the State: JC to SC-II
For the Respondent No. 5: Mr. Indrajit Sinha, Advocate
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7/ 12.09.2012 Heard learned counsel for the parties.
2. The order dated 6th of September 2006 (Annexure-6) passed by the Commissioner, Singhbhum (Kolhan) Division, Chaibasa (Respondent No. 4) in H.R.C. Revision No. 3 of 2005 is under challenge in this writ petition wherein the petitioner tenant has been asked to deposit the amount of rent fixed by the Appellate Authority during the pendency of the revision application.
There was an interim order operative in favour of the petitioner that no coercive action shall be taken against the petitioner for realization of the rent in terms of the impugned order.
3. After hearing the parties, it appears that this writ petition can be disposed of by directing the Revisional Authority i.e. Commissioner, Singhbhum (Kolhan) Division, Chaibasa (Respondent No. 4) to dispose of the revision case being H.R.C. Revision No. 3 of 2005, if not already disposed of, as expeditiously as possible preferably within a period of two months from the date of receipt of a copy of this order.
Any realization of the rent shall be subject to the final outcome of the order passed by the Revisional Authority.
This writ petition stands disposed of in the aforesaid terms.
(Aparesh Kumar Singh, J) Ranjeet/ IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (C) No. 7514 of 2006
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Yuksom Breweries Ltd. --- --- --- Petitioner Versus The State of Jharkhand & others --- ---- --- Respondents
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CORAM: The Hon'ble Mr. Justice Aparesh Kumar Singh For the Petitioner: Mr. Indrajit Sinha, Advocate For the State: JC to SC-III
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6/ 12.09.2012 Heard Learned counsel for the parties.
2. The petitioner is seeking mandamus on the respondents to refund a sum of Rs. 2,99,832/- being the amount of difference of excise duty resulting from reduction in the rates of duty imposed on beer with effect from 1st of July 2004.
3. Learned counsel for the petitioner submits that the petitioner held a distributor's licence at Bokaro Steel City for the sale of beer to the holders of 'sale to trade' licences and also to military bodies throughout the State of Jharkhand. It is submitted that the petitioner company has its brewery in the State of Sikkim, from where it imports beer in the State of Jharkhand for selling the same under the terms and conditions of the licence. By referring to section 9 of the Bihar Excise Act, 1915, it is submitted that this Act imposes restrictions on import of intoxicants and provides that no intoxicant shall be imported unless the State Government has given permission for its import and such conditions as the State Government may impose have been satisfied and also the duty would be payable under Chapter-V of the Act. It is further submitted that under section 27 of the Act, the State Government has the power to impose duty on excisable items. Section 28 of the Act provides for ways to levying duty. Relevant proviso to section 28 of the Act, are quoted herein-below.
"28. Ways of levying such duty:- .... [Provided further that in case of excisable articles imported or transported on payment of duty according to the provisions of sub- clause(i) of clause (a) or clause (c) of this section, the difference of duty resulting from any provision in the rates of duty subsequent to such import shall be realised from, or credited to the account of the importing or transporting licencee according to the revised rate of duty which may be higher or lower than the previous rate and the calculation thereof shall be made on the balance stock of excisable article on the date the revised rate of duty comes into effect:]
4. Learned counsel for the petitioner submits that the petitioner imported beer from its brewery situated at Sikkim under Rule 8-A of the Rules framed under the Excise Act on prepayment of duty at the rates indicated in paragraph-14 of the writ petition. However, it is submitted by referring to S.O. No. 969 dated 30th Jun 2004 (Annexure-2) that under the new excise policy of the Government of Jharkhand, revised rate of duty was notified by which, excise duty on sale of beer was reduced. The petitioner submits that the stock remaining in its possession as on 30th June 2004 after the sale hours, was verified by the Excise Authority and it was found that the balance stock of beer on 1st July 2004 i.e. the date on which revised rate of duty on beer came into force was 29.983.20 Bulk Litres of Heman 9000 Strong Beer (Annexure-3). In support of the aforesaid submission with respect to the verification conducted by the Assistant Superintendent of Excise, Bokaro, learned counsel for the petitioner submits that the petitioner paid the duty at the old rate of Rs. 12.00 per B.L, on the balance stock of beer remaining in the possession of the petitioner as on 1st July 2004, whereafter, rates of excise duty were reduced to Rs. 2.00 per B.L. Therefore, the petitioner is entitled to refund of difference of excise duty calculated at the balance stock as on 1st July 2004 being the difference in the old and revised rates of duty which comes to Rs. 2,99,832/-. It is further submitted that the Excise Commissioner-cum-Secretary, Jharkhand undertook the exercise to call for a report of the balance stock of foreign liquor and beer for disposal of the cases of the adjustment of the difference of excise duty vide memo dated 12th January 2005 (Annexure-5). However, on the application of the petitioner made before the Assistant Commissioner of Excise, Bokaro (Respondent No. 4) seeking refund / adjustment of the amount of difference of excise duty in terms of the provisions of section 28 of the Act and Rule 147 made by the Board of Revenue under section 90(12) of the act, the concerned respondent has not passed any order leaving the petitioner with no other alternative than to move this court in the present writ application. The petitioner submits that in the similar circumstances, this court vide order dated 13th November 2006 passed in W.P.(C) No. 2812 of 2006, granted similar relief to Mohan Meakin Limited, Ranchi by directing the respondent Excise department to refund the excess excise duty on account of reduction in duty on the stocks of the petition as were available on 30th June 2004. It is submitted that the petitioner is therefore entitled to the similar relief as the case of the petitioner stands on similar footing.
5. Learned counsel for the respondent State, by referring to the averments made in the counter affidavit, submits that the rates of excise duty on the sale of beer were reduced with effect from 1 st July 2004 and there is no dispute so far as the payment of difference of excise duty is concerned as well as the stock which were verified on 30th June 2004. Learned counsel for the respondent submits that it is not clear about the stock available with the petitioner on the date of reduction of excise duty and whether they were sold at old rate or new rate.
6. However, counsel for the petitioner disputes this argument, by saying that the similar argument was advanced earlier in the aforementioned writ application but the same was rejected by this court while directing the respondents to make the refund on the basis of the stocks found on verification as on 30th June 2004.
7. In view of the aforesaid facts and circumstances, it appears that the material facts involved in this writ application is not in dispute. The excise duty on beer was reduced with effect from 1st July 2004. The stock of the beer lying in the petitioner's custody after sale hours on 30th June 2004 was verified by the Assistant Commissioner of Excise, Bokaro (Respondent No. 4) and the respondent also did not dispute that the difference of excise duty is refundable to the petitioner on the unused stock. In the circumstances, since the similar relief has been granted to the similarly placed petitioner in W.P.(C) No. 2812 of 2006 vide order dated 13th November 2006 (Annexure-7), this writ petition is allowed in terms of the aforesaid order by directing the respondents to refund the excise duty on account of reduction in duty on the stocks of the petitioner as were available on 30th June 2004. This exercise must be completed within a period of three months from the date of the copy of the order is served upon the respondents.
(Aparesh Kumar Singh, J) Ranjeet/ IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (C) No. 4827 of 2007
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Tej Narayan Yadav --- --- --- Petitioner
Versus
The State of Jharkhand & others --- ---- --- Respondents
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CORAM: The Hon'ble Mr. Justice Aparesh Kumar Singh
For the Petitioner: Mr. Rahul Gupta, Advocate For the State: JC to Sr. SC-II
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3/ 12.09.2012 Learned counsel for the petitioner submits that this writ application has been rendered infructuous. Accordingly, this writ petition is dismissed as infructuous. Consequently, the I.A. No. 25 of 2008 filed on behalf of the intervenor is dismissed as infructuous.
(Aparesh Kumar Singh, J) Ranjeet/ IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (C) No. 4828 of 2007
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Jharkhand State Electricity Board, Ranchi --- --- --- Petitioner Versus Sri B.R. Sahay & another --- --- --- --- Respondents
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CORAM: The Hon'ble Mr. Justice Aparesh Kumar Singh
For the Petitioner: None
For the Respondent: None
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4/ 12.09.2012 No one appears on behalf of the petitioner.
It appears that on the last occasion also, no one appeared. In the circumstances, this application is dismissed for non- prosecution.
(Aparesh Kumar Singh, J) Ranjeet/ IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (C) No. 4848 of 2007
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Bhagwan Mandal --- --- --- Petitioner
Versus
Jugal Rana & others --- ---- --- Respondents
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CORAM: The Hon'ble Mr. Justice Aparesh Kumar Singh
For the Petitioner: Mr. Rajiv Ranjan, Advocate
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3/ 12.09.2012 From the submission of the learned counsel for the parties and the prayer made in the writ application, it appears that this writ petition arises out of the proceeding initiated under the provisions of Santhal Pargana Tenancy Act, subject matter of which appears to have been assigned to another Bench.
List the matter before an appropriate Bench.
(Aparesh Kumar Singh, J) Ranjeet/ IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (C) No. 4869 of 2007
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Rattam Lall Prakash Chand --- --- --- Petitioner Versus Bharat Petroleum Corporation Ltd & others --- Respondents
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CORAM: The Hon'ble Mr. Justice Aparesh Kumar Singh For the Petitioner: Mr. Krishna Murari, Advocate
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5/ 12.09.2012 Learned counsel for the petitioner Krishna Murari submits, on instruction from the client, that this writ application has been rendered infructuous. Accordingly, this writ petition is dismissed as infructuous.
(Aparesh Kumar Singh, J) Ranjeet/ IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (C) No. 4851 of 2007
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Shyam Sunder Ramani --- --- --- Petitioner Versus The State of Jharkhand & others --- ---- --- Respondents
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CORAM: The Hon'ble Mr. Justice Aparesh Kumar Singh
For the Petitioner: None
For the State: JC to SC (L&C)
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3/ 12.09.2012 No one appears on behalf of the petitioner. However,
counsel for the respondent State, by referring to the averments made in the counter-affidavit, submits that the respondents never wanted to encroach upon the said land, nor claimed any title over the same. He further submits that a cricket match was organized by the District Cricket Association in the year 2007 supervised by the Superintendent of Police, Deoghar. On the aforesaid facts, it is submitted that the apprehension of the petitioner is wholly misplaced.
It appears that this writ application was preferred for restraining the district administration from interfering with the peaceful possession of the petitioner over the land situate at plot no. 5 within village Rikhiya, P.S. Mohanpur district Deoghar. The petitioner now appears to have lost his interest in pursuing the matter any further. Accordingly, this writ application is disposed of. Consequently, I.A. No. 348 of 2009 also stands disposed of.
(Aparesh Kumar Singh, J) Ranjeet/ IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (C) No. 4876 of 2007 with W.P. (C) No. 4884 of 2007 with W.P. (C) No. 4891 of 2007
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New India Assurance Company Ltd (WPC 4876/07) M/s Oriental Insurance Company Ltd (WPC 4884/07) M/s Oriental Insurance Company Ltd (WPC 4891/07) --- Petitioners Versus Nand Kishore Prasad & another (WPC 4876/07) Pradip Kumar Prasad (WPC 4884/07) The Permanent Lok Adalat, Civil Court Campus, Dumka & ors. (WPC 4891/07)---- ---- Respondents
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CORAM: The Hon'ble Mr. Justice Aparesh Kumar Singh For the Petitioner: Mr. Harendra Kr. Singh, Advocate (WPC 4876/07) For the Petitioners: Mr. Abhay Kr. Mishra, Advocate (WPC 4884/07 & 4891/07) For the Respondent: Mr. Ashok Kr. Yadav, Advocate (WPC 4884/07) For the Respondent: Mr. Ashish Verma, Advocate (WPC 4891/07)
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7/ 12.09.2012 These writ applications are decided by the common order as common issues are involved in all these three writ applications.
(I) As to whether the Permanent Lok Adalat can proceed to adjudicate upon the dispute involved in motor vehicle accident claim cases under the provisions of section 22(C) of the Legal Services Authority Act, 1987? (II) Whether only after resorting to the procedure prescribed under section 22(C)(4) to (7) of the Legal Services Authority Act, 1987 and upon failure of the parties to arrive at a compromise in the terms of settlement offered, only then the Permanent Lok Adalat can decide or adjudicate the dispute on merits under the provisions of section 22(C)(4) to (7) of the Legal Services Authority Act, 1987?
2. WPC No. 4876/07: The petitioner Insurance Company is aggrieved by the judgment and Award dated 02.03.2007 and 08.03.2007 respectively passed by the Permanent Lok Adalat, Jamshedpur in P.L.A Case No. 60 of 2006, as according to the petitioner, the claim preferred on behalf of the claimant has been decided in utter violation of Section 22(C) (4) to (7) of the Legal Services Authority Act, 1987.
Notice was issued to the respondent no. 1 who has appeared by filing counter affidavit. However, no one appears on behalf of the sole respondent to attend this case.
3. WPC No. 4884/07: The petitioner Insurance Company is aggrieved by the Order dated 05.03.2007 passed by the Permanent Lok Adalat in P.L.A Case No. 32 of 2006, wherein the claim application preferred by the claimant before the Permanent Lok Adalat for reimbursement of the expenses incurred in investigation of ailment under Medi-claim policy has been adjudicated on merits. The petitioner's grievance is that the Permanent Lok Adalat has failed to follow the provisions of law under the Legal Services Authority Act, 1987 by making efforts for conciliation between the parties and by framing terms of settlement and offering it to the rival parties to arrive at agreed settlement on the basis of compromise between the parties, rather straightaway, the Permanent Lok Adalat has proceeded to adjudicate upon the claim on merits by passing the impugned order holding the petitioner company liable for payment of Rs. 20,000/-.
Counsel for the claimant Mr. A.K. Yadav is present. However, he is not able to dispute the contention of the petitioner that without making efforts for conciliation by framing terms of settlement and offering it to the rival parties, the Permanent Lok Adalat has straightaway proceeded to adjudicate upon the dispute on merits, which is in contravention of the provisions of the Legal Services Authority Act, 1987 and also against the legal position settled by the judgment of the Division Bench of this court in W.P.(C) No. 1975 of 2007 (Oriental Insurance Company Limited vs. Bodya Oraon & another) as well as single Bench of this court in W.P.(C) No. 1297 of 2007 and analogous cases (Radheshyam Kumar Ram vs. Gurubari Hoe & another).
4. WPC No. 4891/07: The petitioner Insurance Company is aggrieved by the Order dated 18.06.2006 passed by the Permanent Lok Adalat, Dumka in Title Claim Case No. 06 of 2005 in respect of the claim application filed under section 22(C) of the Legal Services Authority Act, 1987 in respect of Motor Vehicle Accident Claim Case as, according to the petitioner, learned Permanent Lok Adalat has decided the dispute on merits awarding a sum of Rs. 1,59,500/- to be paid to the claimant along with interest @9% without following the mandate of the provisions of section 22(C) (4) to (7) of the Legal Services Authority Act, 1987.
On notice, claimants have appeared through their counsel Mr. Ashish Verma. However, learned counsel for the claimant is not in a position to dispute that the Permanent Lok Adalat did not make any effort for conciliation nor framed any terms of settlement to offer it to the parties for arriving at a agreed settlement on compromise between them and only whereafter, upon failure of the parties to arrive at a compromise on the terms of settlement offered, it could have proceeded to adjudicate the dispute on merits.
5. The issue raised in these batch of writ applications is no longer res-integra and has been settled by the judgment of the Division Bench of this court in W.P.(C) No. 1975 of 2007 (Supra) as well as Single Bench of this court in W.P.(C) No. 1297 of 2007 (Supra) and also in view of the settled legal position of law, the impugned Award passed by the Permanent Lok Adalat, cannot be sustained in law, as the Permanent Lok Adalat has gone beyond the jurisdiction in deciding the matter on merits without following the provision provided under the Statute under which it is created. It is legally obliged to follow the procedure prescribed under section 22(C) (4) to (7) of the Legal Services Authority Act, 1987 and upon failure of the parties to arrive at a compromise on the terms of settlement offered, the matter could have been adjudicated on merits by the Permanent Lok Adalat.
6. In view of the aforesaid settled legal position, the impugned orders / Awards are hereby set aside. These applications are allowed. However, claimants are allowed liberty to raise their claims before the appropriate forum constituted under the provisions of Motor Vehicle Act.
(Aparesh Kumar Singh, J) Ranjeet/ IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (C) No. of 2007
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--- --- --- Petitioner
Versus
The State of Jharkhand & others --- ---- --- Respondents
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CORAM: The Hon'ble Mr. Justice Aparesh Kumar Singh
For the Petitioner: Mr. , Advocate
For the State: JC to SC-
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5/ 12.09.2012
(Aparesh Kumar Singh, J)
Ranjeet/