Madhya Pradesh High Court
Narayan Choubey vs The State Of Madhya Pradesh on 5 January, 2015
W. P. No.17547/2014
05.01.2015
Shri Ashish Trivedi, learned counsel for the petitioner.
Heard on the question of admission.
On payment of P.F. by registered post with
acknowledgment due within a week, issue notice of this writ
petition on merits as well as interim relief to the respondents.
Notices be made returnable within a period of four
weeks.
Learned counsel for the petitioner while inviting the
attention of this Court to order passed by the appellate
authority under the provisions of Urban Land (Ceiling and
Regulations) Act, 1976 submitted that on commencement of
repealed Act the proceedings which were initiated against
landowners under 1976 Act stood abated. It is further submitted
that petitioner as purchased the land in question from owners
under the provisions by registered sale deed, therefore, the
petitioner cannot be treated as encroacher.
In view of the aforesaid, it is directed that no coercive
action shall be taken against the petitioner in pursuance of
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order dated 12.9.2014 till the next date of hearing.
Certified copy as per rules.
(Ms.Vandana Kasrekar)
Judge
rao
2
W. P. No.6758/2011
01.12.2014
Parties through their counsel.
List the petition for hearing in the month of January,
2015.
(Rajendra Menon) (Ms.Vandana Kasrekar)
Judge Judge
rao
3
W. P. No.18527/2014
01.12.2014
Shri Abhishek Arjaria, learned counsel for the
petitioner.
Heard on the question of admission.
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Issue notice to the respondents on payment of
process fee within three days by both the modes. Notice be
made returnable in three weeks.
Shri Arjaria is also heard on interim relief.
Primafacie the action by the Managing Director by
directly interfering in the matter in terminating the
agreement seems to be contrary to the requirement of the
Agreement and, therefore, the impugned order terminating
the contract executed between the petitioner and
respondent no.1 in pursuance to the agreement in question
shall remain stayed till next date of hearing.
Certified copy as per rules.
(Rajendra Menon) (Ms.Vandana Kasrekar)
Judge Judge
rao
5
M.C.C. No.2536/2014
01.12.2014
List the matter on 10th of December, 2014, as prayed.
(Rajendra Menon) (Ms.Vandana Kasrekar)
Judge Judge
rao
6
F. A. No.151/2012
01.12.2014
Service of notice on all the respondents has not
been effected.
List after service is effected on all the respondents.
Interim relief to continue.
(Rajendra Menon) (Ms.Vandana Kasrekar)
Judge Judge
rao
7
M.C.C. No.2099/2014
01.12.2014
Parties through their counsel.
This application has been filed for restoration of F.A.
No. 576/2012 which has been dismissed in view of
unconditional order passed on 24.4.2014 in the matter of
complying with the office default.
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There being some delay in filing the application for
restoration, I.A. No. 13819/2014 has been filed seeking
condonation of delay.
Looking to the averments made in both the
applications, same are hereby allowed and the delay in
filing the restoration application is hereby condoned so also
the restoration application is also allowed.
First Appeal no. 576/2012 is restored to its original
number and it be listed before appropriate Bench.
(Rajendra Menon) (Ms.Vandana Kasrekar)
Judge Judge
rao
M. C.C. No.1654/2014
9
01.12.2014
This matter has been placed before us in view of an
office note dated 18.11.2014.
Vide order passed on 3.9.2014 in M.C.C. No.
1654/2014, restoration of First Appeal No. 122/2013 was
sought for. However, while passing the order on 3.9.2014
in the restoration application, inadvertently, the particular of
the case number is mentioned as F.A. No. 331/2012
instead of F.A. No. 122/2013.
That being so, this application is allowed. We allow
the office objection and it is directed that in the order dated
3.9.2014 in place of 'F.A. No. 331/2012', it be read as 'F.A.
No. 122/2013'.
Necessary action be taken now in view of the
aforesaid corrections.
Let a copy of this order be kept in the record of F.A.
No. 122/2013.
M.C.C. stands allowed and disposed of.
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(Rajendra Menon) (Ms.Vandana Kasrekar)
Judge Judge
rao
I.T. A. No.76/2012
01.12.2014
Shri Sanjay Lal, learned counsel for the appellant.
This is a revenue Appeal under Section 260A of the
Income Tax Act challenging the order passed by the
Commissioner of Income Tax Appeals vide Annexure A/2
dated 2.1.2011 and by the Income Tax Appellate Tribunal,
Indore Bench on 20.12.2011 vide Annexure A/3.
There being delay of about 77 days in filing the
appeal, I.A. No. 15628/2014 has been filed seeking
condonation of delay.
Keeping in view the reasons stated in the application,
same is hereby allowed and the delay in filing the appeal is
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hereby condoned.
Shri Sanjay Lal is heard on the question of admission
of the appeal.
Respondent Establishment is a Society registered
under the provisions of the Societies Act and has also
admitted to the benefit of exemption applicable to such
educational Institutions under Section 10(23C) of the
Income Tax Act. By the orders of Assessment passed, the
Income of the assessee was assessed for the period in
question but certain addition of Rs. 53,55,030/- was made
by the Assessing Officer against which appeals were filed.
In the appeals filed, it was found by the appellate
authorities, i.e. the Commissioner (Appeals) and the
Tribunal that the Assessing Officer has disallowed the
aforesaid amount only on the ground that the amount said
to have been contributed by three different persons does
not meet the requirement of Section 68 of the Income Tax
Act and, therefore, exemption cannot be granted. However,
when the matter travelled to the Commissioner (Appeals)
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and the Appellate Tribunal, both the authorities have
recorded a finding that the entire fund received by the
Society has been utilized for construction of the college
building and various other infrastructure. It found that the
income is utilized for educational purposes and, therefore,
they are entitled to be exempted under Section 10(23C) of
the Act. It was also found that for the same activity in the
previous year, exemption was granted. In the order passed
by the Commissioner of Income Tax (Appeals) he has
dealt with the issue in the following manner:-
"The decision of my Ld. Predecessor
and judgment of ITAT has been
considered and relying on the order of
the Hon'ble ITAT, Indore Bench, the
appellant is entitled to exemption under
Section 10(23C) and such exemption is
to be given to any income of the
appellant as long as it is utilized for the
educational objects of the society. All the
funds received have been utilized by the
society in construction of college building
and various other related infrastructure
facilities. Thus, the income is utilized for
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educational purposes and is accordingly
entitled to exemption. The addition of Rs.
59,55,030/- confirmed is entitled to
exemption u/s 10(23C). I also rely on the
judgments of the Hon'ble Jurisdictional
M.P. High Court in the case of Agrawal
Warehousing and Leasing Ltd. Vs. CIT
reported in 257 ITR 235 as well as in the
case of Govindram Sakseria Charity
Trust Vs. ITO reported in 168 ITR 387
wherein it was held that the orders
passed by the Tribunal are binding on all
the revenue authorities functioning under
the jurisdiction of the Tribunal. This
ground is decided accordingly.
The appellant submitted that the only
activity of the society was setting up of a
Dental college. The income of the
educational society was claimed exempt
u/s 10(23)(iiiad) of the Income Tax Act.
Alternatively, it is also prayed that the
income of the appellant society is
exempt u/s. 11 of the Income Tax Act.
The CIT, Bhopal vide order dated 3.3.09
in view of the directions of the Hon'ble
ITAT, Indore Bench, granted registration
to the appellate society w.e.f. 17.7.2000,
therefore, covering this assessment year
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under exemption. The Hon'ble ITAT has
found that the objects of the appellant
society are solely educational in nature
and that the society is not established for
the purpose of profit. It is also not in
dispute that he appellant society during
the relevant assessment year was
engaged in constructing the dental
college building which is integral part of
setting up of educational institution. The
appellant society receipts/income during
the assessment year were not in excess
of the specified limit prescribed u/s 10
(23C)(iiiad). It may be submitted that
even today the appellant society is
engaged in running a dental college and
research centre at Gandhi Nagar,
Bhopal."
(emphasis
supplied)
These findings have been approved by the Appellate
Tribunal and it is found that both the appellate authorities
concurrently found that the entire fund has been utilized by
the respondent society for construction of the college
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building, infrastructure and various other educational
activities and, therefore, respondent Society is entitled for
exemption under Section 10(23C) and accordingly, the
appeal was dismissed.
The findings recorded by both the appellate
authorities are based on due appreciation of facts and
material available on record and we see no reason to
interfere into the same. We see no substantial question of
law warranting interfering by us.
Accordingly, finding no ground to interere, the appeal
stands dismissed.
(Rajendra Menon) (Ms.Vandana Kasrekar)
Judge Judge
rao
16
W. P. No.18538/2014
01.12.2014
Shri Sanjay Singh, learned counsel for the petitioner.
Smt. Kanak Gaharwar, learned counsel for the
respondent on advance notice.
Calling in question the tenability of an order dated
9.11.2011 passed by the Central Administrative Tribunal,
Jabalpur Bench in O.A. No. 618/2012, Annexure P/1
denying payment of back wages to the petitioner with effect
from the date the petitioner was disengaged i.e. 9.11.2011
till passing of the order, this writ petition has been filed
under Article 227 of the Constitution of India.
Facts in brief are that petitioner's husband late
Babulal Malviya was working as Watchman in the Indian Institute of Soil Science. He died in harness on 6.10.2010 and, therefore, initially petitioner requested for providing compassionate appointment to her son Santosh Kumar Malviya. However, it seems that after certain 17 correspondence, compassionate appointment was granted to the petitioner herself and she joined as a trainee and continued to work for six months. Thereafter certain objections were raised in the departmental correspondence indicating that petitioner does not fulfill the minimum qualification requirement and, therefore, her engagement was not proper as she was appointed as trainee for a period of six months. However, training was not confirmed that she was discontinued vide order dated 9.11.2011, Annexure P/1. She was given an option for submitting another application for providing compassionate appointment to her son. While petitioner's case for compassionate appointment to her son was pending under consideration, petitioner challenged her disengagement before the Central Administrative Tribunal by filing O.A. No. 618/2012. The learned Tribunal allowed the OA and quashed the order dated 9.11.2011 by holding the same to be illegal. However, the applicant was held to be not entitled for arrears of salary and allowances on the 18 principle of no work no wages for the intervening period.
Challenging this denial of arrears of salary for the intervening period, this writ petition has been filed by the petitioner under Article 227 of the Constitution of India.
It is submitted by learned counsel for the petitioner that once the termination is found to be illegal and quashed then all consequential benefits accrued thereof should have been granted to the petitioner and in denying the same, the Tribunal has committed an error.
Per contra, Smt. Kanak Gaharwar, learned counsel for the respondents pointed out that petitioner was given compassionate appointed on 29.4.2011 on the post of Trainee for a period of six months and as her training was discontinued and she was not continued with her services, it was not a case of regular appointment and it is a case where the Department has not committed any deliberate error but it is only an error in not taking note of certain instructions issued by the Department of Personal and Training and, therefore, the discretion exercised by the 19 Tribunal does not call for any interference.
We have heard learned counsel for the parties and have considered the rival contentions.
Normally when an order is found to be illegal it is quashed and the consequential benefit of granting salary for the intervening period should be granted. However, this is not always the case and there are exceptions to it depending upon the facts and circumstances of each case. If the case in hand is analyzed in the background of submission of the respondents, it is clear that petitioner was granted compassionate appointment and she was engaged as a trainee for a period of six months and during the period of training she was discontinued and the case of her son for grant of compassionate appointment was also under consideration and, therefore, petitioner has no right to claim arrears of salary and other allowances for the intervening period.
The Tribunal has exercised its discretion in denying the arrears of salary and we see no reason to interfere in 20 such a discretion by exercising extra-ordinary writ jurisdiction under Article 227 of the Constitution of India.
Accordingly, finding no ground to interfere into the matter passed by the Tribunal, this petition stands dismissed.
(Rajendra Menon) (Ms.Vandana Kasrekar) Judge Judge rao 21 22