Section 138, 139 and 118(a) Of Negotiable Instrument act

Head notes:

A. Mere Denial of Signature does not amount to rebuttal of presumption under section 139

B. In Rangappa v. Srimohan reported in 2010(11) SCC 441, three judges of the Hon'ble Supreme Court, while overruling the interpretation of two Judges Bench in Krishna Janardhan Bhat case cited supra, has held that, presumption mandated by Section 139 of the N.I. Act, does indeed include the existence of a legally enforceable debt or lability.  It is open to the
accused to raise a defence wherein the existence of a legally enforceable debt or lability can be contested.   However there can be no doubt that there is an initial presumption which favours the complainant. If the accused is able to raise a probable defence which creates doubt about the existence of a legally enforceable debt or lability, the prosecution will fail. Therefore,
an accused in cheque bounce case is not without any opportunity to discharge the burden of presumption. The opportunity shall be by either at the time of reply notice or through cross examination of the prosecution witnesses or through mounting the witness box or examining any other person in support of defence. The reverse burden can be discharged by raising bona-fide doubt in the mind of the Court regarding consideration or enforceable debt through all
or any of the above said mode.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT              

Dated: 09.10.2018

RESERVED ON :  27.09.2018   

DELIVERED ON :  09.10.2018  

CORAM  

THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN            

Crl.R.C(MD)No.469 of 2017

Mrs.Shanthini         : Petitioner/ Accused
                        
Vs.

A.Nagarajan    Respondent/ Complainant

PRAYER: Criminal Revision Case is filed under Section 397 read with Section 401 of the Code of Criminal Procedure, against the Judgment of conviction passed by the learned Sessions Judge, Mahila Fast Track Court, Nagercoil in C.A.No.34 of 2011, dated 31.08.2015, confirming the Judgment passed by the learned Second Additional District Munsif, Nagercoil in S.T.C.No.115 of 2009, dated 24.02.2011.              

For Petitioner: Mr.Niranjan S.Kumar

For Respondent : Mr.S.Balamurugan        

:ORDER 
         The revision petitioner is the accused in S.T.C.No.115 of 2009 on the
file of the learned Second Additional District Munsif, Nagercoil. The cheque
dated 20.02.2008 drawn at Dena Bank, Nagercoil Branch issued by her in favour
of Nagarajan for            Rs.2,80,000/-, on presentation for collection,
returned unpaid. Nagarajan issued statutory notice dated 26.02.2008 calling
upon the revision petitioner to pay the cheque amount within 15 days from the
date of receipt of the notice. The revision petitioner, though received the
notice on 28.02.2008, neither replied nor paid the cheque amount.

        2.Nagarajan filed complaint before the Court, which was taken up on file. The complainant examined himself as PW-1. The cheque, memo, debit  advice challan, statutory notice, postal receipt and postal acknowledgment were marked as Ex.P-1 to Ex.P-6.
         3.The case of the complainant is that he lent Rs.2,80,000/- to the accused on 20.12.2007. She promised to repay the loan within 2 months and gave post-dated cheque (Ex.P-1). He presented the cheque for collection on 21.02.2018 through his bank.  The bank returned the cheque with intimation that funds insufficient. The memo of cheque return issued by the accused bank is Ex.P-2. The debit advice challan issued by his bank is Ex.P-3. The accused
was called upon to make the payment of Rs.2,80,000/- within 15 days through
notice dated 26.02.2008. The accused received the notice, but not paid the
money and thereby committed offence under Section 138 of N.I. Act.
         4.The defence version is that the cheque was not issued by the accused.
The cheque was stolen from the accused and misused by the complainant. There 
is no enforceable debt in respect of the cheque.  The complainant has not
proved his source for lending   Rs.2,80,000/-. The complainant has not shown
the said money transaction in his income tax returns.

        5.The Trial Court negatived the defence version, accepted the case of
the complainant and convicted the accused under Section 138 of N.I. Act and
sentenced him to undergo 6 months simple imprisonment and to pay a fine of
Rs.5,000/- in default to undergo 3 months simple imprisonment.

        6.Aggrieved by the Trial Court judgment, the revision petitioner filed
appeal in C.A.No.34 of 2011 before the learned Sessions Judge, Mahila Fast
Track Court, Nagercoil.

        7.In the appeal, it was contented that no prudent man will offer a huge
amount without interest. The case of the complainant that he gave
Rs.2,80,000/- to the accused on 20.12.2007 and on the same day she gave 
cheque for Rs.2,80,000/- to repay after 2 months without interest is
unbelievable. The complainant has no money lending licence. The contradiction
in the complainant case regarding the exact date and place of issuing the
cheque has not been properly considered by the Trial Court. The Trial Court
is erred in believing the complainant that he gave hand loan of
Rs.2,80,000/- based on the post dated cheque even without knowing her
repaying capacity and background of her family.

        8.The first appellate Court pointing the inconsistency in the defence
version and failure to prove the cheque was stolen from her, dismissed her
appeal drawing presumption under Section 139 of N.I. Act.

        9.The learned counsel appearing for the revision petitioner in this
revision filed against the concurrent finding of the Courts below submitted
that once the signature in the cheque denied by the accused, the complainant
ought to have taken steps to prove the signature in the cheque is that of the
accused. By denial of the signature the accused has shifted the burden of
proof on the complainant. Hence, presumption under Section 139 of N.I. Act
cannot be drawn.

         10.Relying upon the Judgment of the Supreme Court rendered in Krishna
Janadhhan Bhat v. Dattatraya G.Hedge reported in 2008(4) SCC 54 , the learned
counsel submitted that stepping into witness box by the accused is not
imperative to rebut the presumption. The cheque amount being huge, the
complainant is bound to account for and the transaction ought to have been
through cheque as per the provisions of Income Tax Act. In this case the
complainant admittedly an assesse of income tax and allegedly he paid amount
to the accused, but he has not shown in his income tax return.

        11.The learned counsel further contented that a duty is cast on the
Court to pragmatically balance the presumption of innocence and reverse
burden. The accused has rebutted the presumption as far as possible. The
decree of proof to rebut the presumption under Section 139 of N.I. Act is
only preponderance of probability. Through cross examination of the
complainant, she has probabilised the preponderance. However, the Courts
below have failed to consider the improbability of advancing Rs.2,80,000/- to
a relatively unknown lady without proper documents.
         12.The learned counsel appearing for the complainant would submit that
the accused after receiving loan and issuing cheque to deny the lawful
enforceable debt, had taken not only inconsistent plea but destructive plea.
At one breath she has denied any transaction with the complainant and another
breath she admits that she know the complainant, who used to visit her house.
She alleges the cheque was stolen from her house, but not lodged any
complaint about it. She has denied  her signature in the cheque, but did not
attempt to prove it. The accused borrowed loan for a short period promising
to repay within two months. She borrowed money to meet her urgent family
expenses, since her husband was in prison at foreign land. Therefore, the
same was given in cash. This fact is being elucidated in the deposition of
the complainant. Since the transaction is not being a  commercial
transaction, the Judgment relied on by the learned counsel appearing for the
revision petitioner does not apply to the facts of the case.

        13.Heard the counsels representing the respective parties. Records
perused.

        14.Point for consideration:
         ?Whether there is any error in the reasoning or finding of the Courts
below??

        15.The cheque (Ex.P-1) is in respect of the account maintained by the
accused in Dena Bank, Nagercoil Branch. The accused though denies the 
execution of the cheque, she has not let any evidence to substantiate the
same. Mere denial of signature by the accused is not adequate to hold she has
rebutted the presumption. She alleges that the cheque was stolen from her
house by the complainant, when he visited her house to drink water. This
allegation has also not been substantiated by her by any other way, except to
put suggestion to the complainant during the cross examination. This also
does not satisfy the requirement of reverse burden.

        16.Apart from denial, she questions the financial capacity of the
complainant to lend Rs.2,80,000/- and non-adherence of Income Tax provisions.

        17.Under Section 118(a) of the N.I. Act, Court is obliged to presume,
until the contrary is proved, that the initial burden in this regard lies on
the defendant to prove the non-existence of consideration by bringing on
record such facts and circumstances which would lead the Court to believe the
non-existence of the consideration either by direct evidence or by
preponderance of probabilities showing that the existence of consideration
was improbable, doubtful or illegal.

        18.In the present case, the accused has not brought out any fact on
record for the Court to believe there was no passing of consideration. The
complainant and  accused are not strangers. The accused in the cross
examination of the complainant by way of suggestion, admits that she knew the
complainant and he used to visit the share broker office next to her
residence and he used to come to her house. At no point of time before trial
or during trial, she has explained the possession of her signed cheque with
the complainant. It is also not the case of the accused that the complainant
is man of no means.

        19.In Rangappa v. Srimohan reported in 2010(11) SCC 441, three judges
of the Hon'ble Supreme Court, while overruling the interpretation of two
Judges Bench in Krishna Janardhan Bhat case cited supra, has held that,
presumption mandated by Section 139 of the N.I. Act, does indeed include the
existence of a legally enforceable debt or lability.  It is open to the
accused to raise a defence wherein the existence of a legally enforceable
debt or lability can be contested.   However there can be no doubt that there
is an initial presumption which favours the complainant. If the accused is
able to raise a probable defence which creates doubt about the existence of a
legally enforceable debt or lability, the prosecution will fail. Therefore,
an accused in cheque bounce case is not without any opportunity to discharge
the burden of presumption. The opportunity shall be by either at the time of
reply notice or through cross examination of the prosecution witnesses or
through mounting the witness box or examining any other person in support of
defence. The reverse burden can be discharged by raising bona-fide doubt in
the mind of the Court regarding consideration or enforceable debt through all
or any of the above said mode.

        20.In this case, the accused had not opted any of the above mode to
shift the burden. Except suggesting to the complainant that he has stolen the
cheque and without knowing the financial and family background, he could not
have advanced a huge sum of      Rs.2,80,000/- .  In the said circumstances
of the fact and law, the finding of the Courts below does not fall under any
of the category to interfere in revision.

         21.The learned counsel appearing for the accused/revision petitioner submitted that the revision petitioner was arrested pursuant to the confirmation of the conviction by the first appellate Court. While preferring the revision petition, there was a delay of 502 days and in the meanwhile she
was arrested on 01.02.2017. This Court directed her to deposit Rs.70,000/- being  ,th  of cheque amount as pre-condition to condone delay and to grant bail. As per the direction of this Court, the revision petitioner has paid Rs.70,000/- to the learned counsel appearing for the respondent/ complainant and the learned counsel also received the same. She has already suffered imprisonment for 80 days from the date of arrest till the date of release on bail. Therefore, the accused being a woman, if the Court finds no merit in the revision, the sentence may be modified into period of sentence already undergone by the revision petitioner and Rs.70,000/- paid to the respondent/ complainant as compensation. 

         22.Considering the above submission, this Court is of the opinion that while confirming the conviction, modification of the sentence needs to be made in view of the subsequent development after the Judgment of the first appellate Court confirming the Trial Court Judgment of conviction and sentence.

         23.Taking  note of the fact that the transaction is of the year 2008 and the accused being a woman, leniency is required balancing the interest of the complainant. The accused has been confined to prison for about 80 days pursuant to the Judgement. Therefore, no further sentence  of imprisonment is required, instead, half of the cheque amount (Rs.1,40,000/-) is ordered as compensation payable to the complainant.

        24.In the result,
         (i)this Criminal Revision Case is partly allowed and the conviction passed by the Courts below are confirmed.  However, the sentence imposed on the revision petitioner/accused is modified into period of sentence already undergone by the revision petitioner/ accused.
         (ii)Regarding the compensation, as per the direction of this Court, the revision petitioner/accused has paid Rs.70,000/- to the learned counsel appearing for the respondent/complainant.  Therefore, the revision petitioner/accused is directed to deposit a balance sum of Rs.70,000/- in S.T.C.No.115 of 2009 within a period of 45 days from the date of receipt of this order, in default, he shall undergo simple imprisonment for 30 days.

         (iii)The respondent/complainant is permitted to withdraw the said compensation on due application.

         (iv)Bail bond if any executed by the revision petitioner/ accused shall stand cancelled.
                                                                          

To

1.The Sessions Judge,
    Mahila Fast Track Court,
    Nagercoil.

2.The Second Additional District Munsif,
    Nagercoil.

3.The Record Keeper,
    V.R. Section,
    Madurai Bench of Madras High Court,
    Madurai.
  .

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7:14 AM | 1 comments

How to prove breach of injunction?

For finding a person guilty of willful disobedience of the order under XXXIX Rule 2A Code of Civil Procedure there has to be not mere "disobedience" but it should be a "willful disobedience". The allegation of willful disobedience being in the nature of criminal liability, the same has to be proved to the satisfaction of the court that the disobedience was not mere "disobedience" but a "willful disobedience". As pointed out earlier, during the second visit of the Commissioner to the Appellant's shop, tea cakes and masala cakes were being sold without any wrappers/labels. The only thing which the Commissioner has noted is that "non removal of the hoarding" displayed in front of the Appellant's shop for which the Appellant has offered an explanation which, in our considered view, is acceptable one.

8. In the facts and circumstances of the case, we do not find any "willful disobedience" on the part of the Appellant warranting invoking Order XXXIX Rule 2A of the Code of Civil Procedure and sentencing the Appellant to one week civil imprisonment.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5775 of 2019
Decided On: 22.07.2019

U.C. Surendranath   Vs.  Mambally's Bakery

Hon'ble Judges/Coram:
R. Banumathi and A.S. Bopanna, JJ.

Citation: AIR 2019 SC 3799

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3:17 AM | 0 comments

Free Online Copy Of AIR JOURNAL

http://www.liiofindia.org/, This website has been providing copies of the reported judgement of AIR journal along with head notes and it will useful for students and beginners.

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1:25 AM | 0 comments

Acceptance of the Order of the High Court of Bombay in the case of Vodafone India Services Private Limited

The Union Cabinet, chaired by the Prime Minister Shri Narendra Modi, in a major decision, has decided to accept the order of the High Court of Bombay in the case of Vodafone India Services Private Limited (VISPL) dated 10.10.2014. This is a major correction of a tax matter which has adversely affected investor sentiment.
Based on the opinion of Chief Commissioner of Income-tax (International Taxation), Chairperson (CBDT) and the Attorney General of India, the Cabinet decided to:
i. accept the order of the High Court of Bombay in WP No. 871 of 2014, dated 10.10.2014; and not to file SLP against it before the Supreme Court of India;
ii. accept of orders of Courts/ IT AT/ DRP in cases of other taxpayers where similar transfer pricing adjustments have been made and the Courts/ IT AT/ DRP have decided/decide in favour of the taxpayer.
The Cabinet decision will bring greater clarity and predictability for taxpayers as well as tax authorities, thereby facilitating tax compliance and reducing litigation on similar issues. This will also set at rest the uncertainty prevailing in the minds of foreign investors and taxpayers in respect of possible transfer pricing adjustments in India on transactions related to issuance of shares, and thereby improve the investment climate in the country.
The Cabinet came to this view as this is a transaction on the capital account and there is no income to be chargeable to tax. So applying any pricing formula is irrelevant.
VISPL is a wholly owned subsidiary of a non-resident company, Vodafone Tele-Services (India) Holdings Limited, Mauritius. On 21.8.2008, VISPL issued shares (at a premium of Rs.8509/-) which resulted in VISPL receiving a total consideration of Rs.246.39 crore from Vodafone Mauritius, on issue of shares and this was shown as "Capital Receipts" in the books of accounts. VISPL reported this transaction as an "International Transaction" and stated that this transaction does not affect its income.
The Transfer Pricing Officer (TPO), vide order dated 28.01.2013, determined the Arm's Length Price of the shares issued by VISPL on the basis of Net Asset Value, at Rs.53,775/- per share and made an upward adjustment of Rs.1,308.91 crore. In addition, the difference Rs.1,308.91 crore between the transaction price and the Arm's Length Price was treated as 'deemed loan' given by VISPL to the holding company; and interest that would have been payable on the loan in an arm's length transaction was computed at Rs.88.35 crore. In total, transfer pricing adjustment of Rs.1,397.26 crore was proposed by the TPO for Assessment Year 2009-10. The matter was agitated by VISPL at the stage of Draft AO itself and therefore the tax payable could not be crystallized. However, the tax rate of 33 percent was applicable for Assessment Year 2009-10.
The DRP, on 11.2.2014, held that the premium determined by the TPO, to the extent not received, is an income arising from issue of shares, and that the AO and the TPO have jurisdiction.
VISPL filed a 2nd Writ Petition in the High Court of Bombay. The High Court, on 10.10.2014, has amongst other things observed:
a) "Section 92(2) of the Act deals with a situation where two or more AEs enter into an arrangement whereby they receive a benefit, service or facility then the allocation, apportionment or contribution towards the cost or expenditure is to be determined in respect of each AE having regard to ALP. It would have no application in the cases like the present one, where there is no occasion to, allocate, apportion or contribute any cost and/ or expenses between the Petitioner and the holding company."
b) The crucial words “shall be chargeable to income tax” which are found in Section 42(2) of the 1922 Act are absent in Chapter X of the Act..... Therefore it is clear that the deemed income which was charged to tax under Section 42(2) of 1922 Act was done away with under this Act."
c) The tax can be charged only on income and in the absence of any income arising, the issue of applying the measure of Arm's Length Pricing to transactional value/ consideration itself does not arise."
d) If its income which is chargeable to tax, under the normal provisions of the Act, then alone Chapter X of the Act could be invoked. Sections 4 and 5 of the Act brings /charges to tax total income of the previous year. This would take us to the meaning of the word income under the Act as defined in Section 2 (24) of the Act. The amount received on issue of shares is admittedly a capital account transaction not separately brought within the definition of Income, except in cases covered by Section 56(2)(viib) of the Act. Thus such capital account cannot be brought to tax as already discussed herein above while considering the challenge to the grounds as mentioned in impugned order."
e) The issue of shares at a premium is on Capital account and gives rise to no income. The submission on behalf of the revenue that the shortfall in the ALP as computed for the purposes of Chapter X of the Act is misplaced. The ALP is meant to determine the real value of the transaction entered into between AEs. It is a re-computation exercise to be carried out only when income arises in case of an International transaction between AEs. It does not warrant re-computation of a consideration received / given on capital account.
The Bombay High Court quashed the reference dated 11.7.2011 by the AO to the TPO, order dated 28.1.2013 of the TPO, draft AO dated 22.3.2013 of the AO and order dated 11.2.2014 of the DRP on the preliminary issue of jurisdiction to tax, setting them aside as being without jurisdiction, null and void.

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2:31 AM | 0 comments

CPC order 18 rule 17

ORDER 18 RULE -17:

During further cross examination of defendant by Plaintiff a document was exhibited and marked – A petition to recall and reopen was filed by the defendant after the suit was post for final hearing to cross examine the plaintiff side witness (P.W.1) is not maintainable – Each party has to prove his case or leads his own defense.( 2015-1-L.W.18 – S.V.Matha Prasad V. Renuka Devi & another)

Cases referred - K.K.Velusamy Vs. Palanisamy – 2011 -3 –L.W. 738

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7:37 AM | 0 comments

Preliminary enquiry cannot be considered as a report filed under Section 173 of the Criminal Procedure Code

Section 156 of Cr.P.C – The order made under Section 156(3) of the Criminal Procedure is in the nature of a peremptory reminder or intimation to the Police to exercise their plenary powers of investigation under Section 156(1) of the Criminal Procedure Code. Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge-sheet under Section 173 of the Criminal Procedure Code

Section 173 of Cr.P.C The report submitted after conducting a preliminary enquiry - cannot be considered as a report filed under Section 173 of the Criminal Procedure Code. Therefore the entire action taken by the respondent is contrary to the provisions contained in Sections 156 and 157 of the Criminal Procedure Code.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 06.12.2007

CORAM

THE HONOURABLE MR. JUSTICE K.MOHAN RAM

Criminal Original Petition No.34202 of 2007

V.S.Veerasamy ... Petitioner

-Vs-

State by Inspector of Police

B-7 Ramanathapuram Police Station

Coimbatore City, Coimbatore - 45 ... Respondent

Prayer:- Criminal Original Petition filed under Section 482 of the Criminal Procedure Code to direct the respondent herein to register the case as per the orders of the learned Judicial Magistrate No.VI, Coimbatore, by its order dated 26.06.2007 in D.No.1042 of 2007 and investigate the matter and file final report within the time stipulated by this Court.

For Petitioner : Mr. V.Balu

For Respondent : Mr. A.Saravanan,

Government Advocate (Crl. Side)

- - -

O R D E R

The brief facts that are necessary for the disposal of the above criminal original petition are as follows:-

The petitioner herein filed a private complaint before the learned Judicial Magistrate No.VI, Coimbatore, against one Lakshmi and nine others alleging the fabrication of false records etc., which according to the petitioner amounted to offence under Sections 120(b), 465, 468, 471, 511, 423, 424, 441 and 447 of the Indian Penal Code. The learned Magistrate by his proceedings in D.No.1042 of 2007 dated 26.06.2007 forwarded the said private complaint under Section 156(3) of the Criminal Procedure Code to the respondent herein for registering a case and investigating and for filing a report within a period of one month. On receipt of the said proceedings the respondent herein instead of registering a case and taking up investigation had conducted a preliminary enquiry and has sent a report concluding that the complaint discloses only a civil dispute and further action can be taken only after the disposal of the civil suits pending between the parties. Being aggrieved by that the petitioner has filed the above criminal original petition seeking a direction to the respondent to register the case as per the orders of the learned Magistrate.

2. Heard Mr. V.Balu learned counsel for the petitioner and Mr.A.Saravanan learned Government Advocate (Crl. Side) for the respondent.

3. Learned counsel for the petitioner submitted that when the learned Magistrate by his proceedings has directed the respondent to register the case and investigate, it is the mandatory duty on the part of the respondent to first register the case and then investigate the same and thereafter file a final report either way. But instead of registering a case the respondent had conducted only a preliminary enquiry and has sent the report, which according to the learned counsel, is against the provisions contained in Sections 156(3) and 157 of the Criminal Procedure Code.

4. Countering the said submissions the learned Government Advocate (Crl. Side) for the respondent fairly submitted that the respondent, on the directions issued by the learned Magistrate under Section 156(3) of the Criminal Procedure Code, ought to have registered the case first and investigate the same and the procedure followed by the Sub Inspector of Police in this case is not in accordance with the provisions of the Criminal Procedure Code.

5. I have carefully considered the submissions made by the learned counsel on either side. It is seen that on the private complaint filed by the petitioner herein the learned Magistrate, as aforesaid, had forwarded the complaint to the respondent herein with the direction to register a case and investigate the same and file a final report within one month, but admittedly the respondent had not registered the case. Sections 156 (1) and 156 (3) of the Criminal Procedure Code read as follows:-

"156. Police Officer's power to investigate cognizable case. (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

(2) ....

(3) Any Magistrate empowered under Section 190 may order such an investigation as above-mentioned."

6. A reading of the above said provisions makes it abundantly clear that the learned Magistrate is empowered to order investigation on a private complaint filed before him. The Magistrate can under Section 190 of the Criminal Procedure Code before taking cognizance seek for investigation by the Police under Section 156(3) of the Criminal Procedure Code. The order made under Section 156(3) of the Criminal Procedure is in the nature of a peremptory reminder or intimation to the Police to exercise their plenary powers of investigation under Section 156(1) of the Criminal Procedure Code. Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge-sheet under Section 173 of the Criminal Procedure Code. When the learned Magistrate has applied his mind and ordered registration of a case and investigation thereon with a further direction to file final report within one month, it is mandatory on the part of the respondent to have first register a case. Admittedly, in this case, the respondent has not complied with the directions of the learned Magistrate and registered the case. Investigation in a criminal case commences only after registration of a first information report, instead of registering the case the respondent has conducted a preliminary enquiry which is not in consonance with the order passed by the learned Magistrate. The report submitted by the respondent after conducting a preliminary enquiry is also cannot be considered as a report filed under Section 173 of the Criminal Procedure Code. Therefore the entire action taken by the respondent is contrary to the provisions contained in Sections 156 and 157 of the Criminal Procedure Code. Therefore, the report submitted by the respondent herein should be considered to be non-est in law.

7. For the above said reasons the criminal original petition is disposed with the following directions:-

The respondent shall first register the case and then commence investigation, examine the witnesses and thereafter, whether a case is made out or not, a final report has to be filed accordingly within a period of one (1) month from the date of receipt of a copy of this order.

To

1. The Inspector of Police, B-7 Ramanathapuram Police Station

Coimbatore City, Coimbatore - 45

2. The Judicial Magistrate No.IV, Coimbatore

3. The Public Prosecutor, High Court

Madras.

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11:42 PM | 0 comments

Public works department authorised to issue NOC for Ground water commercial use

The  Madras High court has issued directions based on government  G.O.Ms.No.52, Public Works (R2) Department, dated 02.03.2012 directing the general public approach the authorities of the Public Works Department for necessary approval  for commercial usage of ground water based on the category to which they fall.

The power of Revenue Department has been taken away and they no longer can take cognizance of illegal ground water trade.  Even after this judgement may revenue authorities with out any legal mandate have taken action with the help of police.

<<click to download full judgement>>

<< click to download  G.O.Ms.No.52, Public Works (R2) Department, dated 02.03.2012 >>

 

Judgement :

In the High Court of Judicature at Madras

Dated: 18.09.2013

Coram

The Honourable Mrs.JUSTICE CHITRA VENKATARAMAN

and

The Honourable Mr.JUSTICE T.S.SIVAGNANAM

Writ Appeal Nos.923 to 926 of 2009, W.P.Nos.23116 of 2006, 23896 to 23900 of 2006, 4711 of 2004 and 12375 of 2008 & Connected Miscellaneous Petitions

Writ Appeal Nos.923 to 926 of 2009:

New Tirupur Area Development Corporation Ltd.,

represented by its Authorised Signatory

having its office at 'Anurag',

No.15, Murray's Gate Road,

Alwarpet, Chennai 600 018. .... Appellant in the above W.A.s

Vs.

1. Tmt. K.Poomani .... Respondent in W.A.Nos.923 & 924/2009

1. Sri.K.Paramasivam .... Respondent in W.A.Nos.925 & 926/2009

2. The Revenue Divisional Officer,

Tiruppur, Coimbatore District.

3. The Inspector of Police,

Tiruppur Rural Police Station,

Coimbatore District.

4. The Secretary,

Government of Tamil Nadu,

Public Works Department (Groundwater),

Fort St. George, Chennai 600 009.

.... Respondents in W.A.Nos.923 to 926 of 2009

5. KRNR Aqua Industries,

rep. by its Proprietor,

Opp. Jaya Theatre,

Mallaooppampatti Village,

Ayyamperumampatti Post,

Salem 636 005.

(R4 impleaded vide order dated 28.7.2009,

R5 impleaded vide order dated 1.7.2013 &

R6 impleaded vide order dated 18.9.2013)

.... Respondents in W.A.No.923 of 2009

6. M/s.Kamala Corporation,

rep. by its Proprietor,

S.Pazhamalai, No.353, Main Road,

Pennadam 606 105

Cuddalore District.

(R4 impleaded vide order dated 28.7.2009,

R5 impleaded vide order dated 1.7.2013 &

R6 impleaded vide order dated 18.9.2013)

.... Respondents in W.A.Nos.923 & 926 of 2009

APPEALs under Clause XV of the Letters Patent against the order dated 12.1.2009 made in W.P.M.P.No.2 of 2008 in W.P.No.25352 of 2008; W.P.No.25352 of 2008; W.P.M.P.No.2 of 2008 in W.P.No.25353 of 2008; W.P.No.25353 of 2008 on the file of this Court.

Writ Petition Nos.23116, 23896 to 23900 of 2006:

Tmt.Rukmani .... Petitioner in W.P.No.23116 of 2006

N.Eswaramoorthy .... Petitioner in W.P.No.23896 of 2006

N.Manonmani .... Petitioner in W.P.No.23897 of 2006

K.Narayanasamy .... Petitioner in W.P.No.23898 of 2006

O.Subramanian .... Petitioner in W.P.No.23899 of 2006

Tiruppur Water Lorry Owner Association,

Regd. No.3/2006,

73/3, Thanner Pandal Colony,

Avinashi Road, Tiruppur 641 652

rep. by its Chairman

R.M.Vadivel

.... Petitioner in W.P.No.23900 of 2006

Vs.

1. The Commissioner,

Tiruppur Municipality,

Tiruppur.

2. The Collector,

Coimbatore District,

Coimbatore.

.... Respondents in the above W.Ps

PETITIONs under Article 226 of The Constitution of India praying for the issuance of Writ of Mandamus forbearing the respondents from obstructing the supply of water taking from the borewell of the petitioners situated in S.No.96/2B2, Ganapathypalayam Village, Palladam Taluk; S.No.518 in 19A Rakkiapalayam Village, Majara Vijayapuram, Tiruppur Taluk; S.No.75/2 in Naranapuram Village Palladam Taluk; S.No.455/3D in 19A, Rakkiapalayam, Nallur Village, Tiruppur Taluk; S.No.369/1B, Ganapathypalayam Village, Palladam Taluk, through tanker lorries for domestic and industrial purposes in and around Tiruppur and Palladam by the petitioners.

Writ Petition No.4711 of 2004:

N.Ramamurthy

.... Petitioner

Vs.

1. The District Collector,

Coimbatore District,

Coimbatore.

2. The Tahsildar,

Palladam Taluk, Palladam,

Coimbatore District.

3. The Asst. Engineer,

Tamil Nadu Electricity Board,

Kulathupalayam, Palladam Taluk,

Coimbatore District.

.... Respondents

PETITION under Article 226 of The Constitution of India praying for the issuance of Writ of Mandamus forbearing the respondents from preventing the petitioner from taking water from his borewell situated in S.F.no.54/3 of Karaipudur Village, Palladam Taluk, Coimbatore District and transporting the water through the lorry to his Banian factory viz., 'Saranya Colours' near the Tiruppur situated in Kunnagalapalaym, Chinnakarai, Arulpalayam Post, Palladam Taluk, Coimbatore District.

Writ Petition No.12375 of 2008:

Appusamy Gounder .... Petitioner

Vs.

1. The Revenue Divisional Officer,

Tiruppur, Coimbatore District,

2. The Inspector of Police,

Palladam Police Station,

Palladam Taluk,

Coimbatore District.

3. New Tirupur Area Development Corporation Ltd.,

represented by its Authorised Signatory

having its office at 'Anurag',

No.15, Murray's Gate Road,

Alwarpet, Chennai 600 018. .... Respondents

PETITION under Article 226 of The Constitution of India praying for the issuance of Writ of Mandamus forbearing the respondents from obstructing the supply of water taking from the open well of the petitioner situated in S.No.386 in 30, Karaipudur Village, Palladam Taluk, Coimbatore District for domestic and industrial purposes in and around Tiruppur and Palladam by the petitioner.

For Appellant in W.A.Nos.923 to 926 of 2009: Mr.S.Raghunathan

For R1 in W.A.Nos.923 to 926 of 2009 and for Petitioner in W.P.Nos.23116 of 2006, 23896 to 23900 of 2006, 4711 of 2004 and 12375 of 2008 : Mr.S.Doraisamy

For R2 to R4 in W.A.Nos.923 to 926 of 2009 & For Respondents in W.P.Nos.23116 of 2006 23896 to 23900 of 2006, 4711 of 2004 and 12375 of 2008 :Mr.A.L.Somayaji, Advocate General Assisted by Mr.R.Ravichandran, AGP Mr.P.Karthikeyan, G.A.

For R5 in W.A.No.923 of 2009: Mr.A.S.Rajkumar

For R6 in W.A.Nos.923 & 926 of 2009: Mrs.Hema Sampath, S.C. For M/s.K.V.Muthuvisakan

-----------------

C O M M O N J U D G M E N T

(Judgment of the Court was delivered by CHITRA VENKATARAMAN,J.)

The present Writ Appeals are filed by New Tirupur Area Development Corporation Limited, who sought to implead itself in Writ Petitions filed by one Poomani in W.P.No.23532 of 2008 and one Paramasivam in W.P.No.25353 of 2008. The said Writ Petitions were filed before this Court for issuance of writ of mandamus forbearing the respondents therein from obstructing the supply of water taking from the open well of the petitioners through tanker lorries for domestic and drinking purposes in and around Tiruppur and Palladam by the petitioners.

2. Learned single Judge rejected the impleading petitions filed by the Writ Appellant taking the view that for deciding the issue, the presence of the impleading party was not at all necessary. Thus, the petitions to implead the Writ Appellant were dismissed. Aggrieved by this, Writ Appeal Nos.925 and 926 of 2009 are filed before this Court. Apart from this, the Writ Appellant also filed Writ Appeals as against the main order passed in W.P.Nos.25352 and 25353 of 2008, wherein learned single Judge, by order dated 12.01.2009 held that in the absence of any order issued by the Government under Section 9 of the Tamil Nadu Groundwater (Development and Management) Act 2003, neither the Revenue Authorities nor the Police Authorities got any power to obstruct the petitioner from drawing ground water from open wells and bore wells and transporting the same. Learned single Judge also pointed out that the order would not stand in the way of the Government issuing appropriate order under Section 9 of the said Act.

3. It is seen from the averment made in the affidavit filed by Paramasivam - Writ Petitioner in W.P.No.25353 of 2005 that on account of the development of knit wear industries resulting in serious set back in the agricultural activity in and around Tiruppur and leading to the shortage of manpower, the petitioner and other similarly placed persons had started selling water to the dyeing factories. However, with the formation of New Tiruppur Area Development Corporation Limited, wherein a Scheme was introduced for drawing water from Bhavani river to Tiruppur for the industrial purpose only, the petitioner felt that his business got offended. Apart from that, the introduction of the Tamil Nadu Groundwater (Development and Management) Act, 2003 to regulate the development and management of groundwater, which was yet to be notified, was further seen as an obstruction to the business. He contended that for sinking a well or bore well, no permission was necessary from the authorities. However, on instruction from the Revenue Divisional Officer, the Inspector of Police started obstructing the lorries taking water from the well and supplying the same to the dyeing factories. Hence, the petitioner approached this Court for a writ of mandamus to forbear the respondents from obstructing the supply of water taken from the open well of the petitioner.

4. In the background of the said contention and with the New Tiruppur Area Development Corporation Limited not being a main party in the Writ Petition, the present appellant filed a petition in M.P.No.2 of 2008 contending that the impleading party was created as a special purpose vehicle under the support of Government of Tamil Nadu to implement the project on drawing water from Bhavani River to Tiruppur, which would not only be beneficial for the public at large and to the industries located in and around Tiruppur but also for the supply of drinking water to the Tiruppur township as well as to the villages in and around Tiruppur. Since the project was implemented at enormous cost, the petitioner thought it fit to move the Court for impleading itself in the Writ Petitions. The appellant contended that on account of the use of groundwater for industrial purpose, the purpose for which the impleading party was constituted would be totally defeated; hence, the appellant had to be impleaded as party and heard in the Writ Petition.

5. As already pointed out, learned single Judge rejected the impleading petitions. The appellant filed Writ Appeals against this order and as well as against the order in the Writ Petitions stating that the Authorities had no jurisdiction to obstruct anybody from drawing water. It is seen further that this Court passed an interim order on 31.01.2011 in the Writ Appeals, wherein the Division Bench of this Court directed the State Government not to allow any person to draw and sell the groundwater until the Tamil Nadu Groundwater (Development and Management) Act, 2013 was notified. This led to the impleading of the sixth respondent M/s.Kamala Corporation in the Writ Appeals. Since one of the contentions raised by the Writ Petitioner and other impleading party related to the non-notification of the Tamil Nadu Groundwater (Development and Management) Act, 2003 and hence on the jurisdiction of the Authorities to obstruct anyone from drawing water from the wells to trade therein, we requested the learned Advocate General to appear in this matter to get proper instructions. Accordingly, learned Advocate General has placed before this Court the copy of the Tamil Nadu Ordinance No.4 of 2013 dated 14th September, 2013, where under, the Tamil Nadu Groundwater (Development and Management) Act, 2003 is now sought to be repealed. The ordinance is called as the Tamil Nadu Groundwater (Development and Management) Repeal Ordinance, 2013. The Explanatory statement reads as under:

"The Tamil Nadu Groundwater (Development and Management) Act, 2003 was enacted taking into consideration the circumstances prevailed in the year 2003. However, in the past 10 years, the following factors have drastically changed the scenario:-

(i) Certain definitions like marginal and small farmers, etc., have not been clearly defined to carry out the purport of the Act preventing groundwater drawal for Agricultural purposes and thereby causing hardship to farmers.

(ii) The people at large are to be ensured minimum potable water from groundwater sources when other sources are not sufficient especially in a drought affected year.

(iii) The provisions in the Act require that all individuals should be registered with the Groundwater Authority and licence should be obtained by all persons having over 1 Horse Power motor. If the Act in the present form was implemented and groundwater was not allowed to be tapped, it would have led to a public outcry.

(iv) Since 2003, the Municipal Corporations like Chennai, Coimbatore, Madurai, etc., have expanded, Piped water supply is not adequately available in the extended portions. Therefore, for supply to households by the Corporations and Private lorries, tapping of groundwater is being resorted to. As per the Act, a permit has to be obtained for transport of groundwater by means of lorry, trailer etc., from the notified areas for any purpose. This would result in unnecessary difficulties to the general public as each and every lorry or trailer in the State has to obtain a permit from the State Groundwater Authority even for supply of drinking water causing difficulties to the general public.

(v) The manner in which the drawal of groundwater has to be regulated for construction of multistoried buildings and for commercial exploitation of water, where water is used as raw material has not been addressed in the Act."

6. Paragraph No.2 of the Explanatory Statement further states that the Tamil Nadu Groundwater (Development and Management) Act, 2003 has to be comprehensively changed taking into account the present demand, need and supply. Consequently, while repealing the Tamil Nadu Groundwater (Development and Management) Act, 2003, the note further expressed its decision to regulate the drawing of water on commercial basis.

7. Learned senior counsel appearing for the impleading party viz., M/s.Kamala Corporation in Writ Appeal Nos.923 and 926 of 2009 placed before us G.O.(Ms) No.52, Public Works (R2) Department dated 02.03.2012. The letter written by the Chief Engineer, State Ground and Surface Water Resources Data Centre, Tharamani to the Secretary to Government dated 02.07.2013 points out that it is an executive order passed in the interests of the State, for equitable availability of groundwater to every one and all the water connecting Departments were consulted on this subject.

8. On a reading of G.O.Ms.No.52, Public Works (R2) Department, dated 02.03.2012, we find that the Chief Engineer, State Ground and Surface Water Resources Data Centre, Tharamani had submitted certain proposals to the Government for notifying blocks based on the categorization made as on March, 2009 for all the Districts in Tamil Nadu on the exploitation of groundwater. Based on the recommendation, the Government issued G.O.Ms.No.52, Public Works (R2) Department dated 02.03.2012 approving the categorization of over exploited blocks; critical blocks; semi critical blocks; safe blocks and saline/poor quality blocks. Thus, all the over exploited blocks and critical blocks are notified as 'A' category stage of groundwater extraction is 90% and above and all the semi critical and safe blocks are notified as 'B' category stage of groundwater extraction is below 89%. The Government further notified in paragraph Nos.9 to 12 as follows:

"9. The Government further direct that no schemes should be formulated in over exploited and critical blocks Notified as A category blocks. In Semi Critical and Safe blocks Notified as B category blocks, all the schemes should be formulated through State Ground and Surface Water Resources Data Centre of Water Resources Department and the Chief Engineer / State Ground and Surface Water Resources Data Centre will issue No Objection Certificate for Ground Water Clearance.

10. The Government further direct to exclude the Ground Water drawal for domestic purpose by individual household; domestic infrastructure project (Housing); Governments Drinking Water Supply Schemes and; non water based industries, (i.e. the industries which do not require and use water, either as raw material or for other processing). The Chief Engineer, State Ground and Surface Water Resources Data Centre will permit for domestic use of water by this non water based industries by issuing No Objection Certificate based on the hydro geological conditions. The list of non water based industries will be issued by the Industries Department of Government of Tamil Nadu separately.

11. The Government further direct that appropriate rain water harvesting and Artificial Recharge Schemes shall be carried out in the catefories viz. Over exploited, Critical, Semi Critical and Safe blocks of Tamil Nadu. While carrying out the above schemes, priority shall be given to marginal quality and bad quality areas so as to avoid further deterioration.

12. The Government further direct that all the schemes and proposals based on Ground Water will have to be adhered the Government orders and conditions as detailed in the Annexure II of this order."

9. Thus, in the background of the Government Order, in exercise of executive power and which has nothing to do with the passing of the repealing of the Act, we feel, the proper course herein would be to set aside the order of the learned single Judge in the Writ Petitions as well as the order rejecting the impleading petitions and direct the parties to approach the authorities of the Public Works Department for necessary approval based on the category to which they fall. Accordingly, the order dated 12.01.2009 made in W.P.Nos.25352 and 25353 of 2008 and M.P.Nos.2 and 2 of 2008 stands set aside. We make it clear that even with the repealing of the Act, G.O.Ms.No.52 Public Works (R2) Department dated 02.03.2012 will govern the interests of the parties and the State in the matter of regulating the business of the Writ Appellant herein.

10. In view of the order passed setting aside the orders of the learned single Judge passed in the Miscellaneous Petitions as well as in the Writ Petitions, all the Writ Appeals and the Writ Petitions are disposed of in terms of what we have stated in the preceding paragraphs. No costs. Consequently, connected Miscellaneous Petitions are closed.

Index :Yes (C.V.,J) (T.S.S.,J)

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