What constitutes a contract as per clause (ix) itself includes the NIT, the acceptance of the tender, the formal agreement to be executed between the parties post contractor furnishing all the documents and the bid security amount. The result of the aforesaid is that as rightly held in terms of the impugned order all that the appellants can do is to forfeit the bid security amount and, thus, it was so directed. Since as a pre-condition of any coercive action against the respondent, the High Court called upon the appellants to deposit a sum of Rs.10 lakh in terms of the interim order dated 04.08.2010, a direction is made to deduct the bid security amount out of the sum of Rs.10 lakh and to refund the balance amount to the respondent. The needful would now have to be done within two months as in terms of the interim order of this Court dated 08.02.2013 such refund has been stayed. We accordingly dismiss the appeal.

Bids were received and respondent was the successful bidder. In view thereof a Letter of Intent (‘LoI’) was issued bearing No.2415 dated 05.10.2009 awarding the contract for a total work of Rs.387.40 lakh.

The respondent filed a writ petition under Articles 226 & 227 of the Constitution of India seeking quashing of the termination letter dated 15.04.2010 the recovery order dated 16.07.2010.

Division Bench of the Chhattisgarh High Court opined that there was no subsisting contract inter se the parties to attract the general terms and conditions as applicable to the contract. Various clauses of the NIT were referred to and it was opined that there could not be a valid contract inter se the parties as it was subject to completion of certain formalities by the respondent, which were never completed, i.e. furnishing of the performance security; and the consequence was that the appellant was within their rights to cancel the award of work and forfeit the bid security.Thus, only the forfeiture of bid security was upheld while the endeavour of the appellants to recover the additional amount in award of contract to another contractor as compared to the respondent was held not recoverable. We may notice at the stage of admission of the writ petition and issuing notice, the respondent was directed to deposit a sum of Rs.10 lakh vide order dated 04.08.2010 and subject to the same the endeavour to recover any amount from the respondent was stayed. Thus, in the final order it was mentioned that after deducting the bid security amount, the balance amount out of Rs.10 lakh was to be refunded to therespondent.

Held that 

What constitutes a contract as per clause (ix) itself includes the NIT, the acceptance of the tender, the formal agreement to be executed between the parties post contractor furnishing all the documents and the bid security amount. The result of the aforesaid is that as rightly held in terms of the impugned order all that the appellants can do is to forfeit the bid security amount and, thus, it was so directed. Since as a pre-condition of any coercive action against the respondent, the High Court called upon the appellants to deposit a sum of Rs.10 lakh in terms of the interim order dated 04.08.2010, a direction is made to deduct the bid security amount out of the sum of Rs.10 lakh and to refund the balance amount to the  respondent. The needful would now have to be done within two months as in terms of the interim order of this Court dated 08.02.2013 such refund has been stayed. We accordingly dismiss the appeal.

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4358 OF 2016

SOUTH EASTERN COALFIELDS LTD. & ORS. ... Appellants

Versus

M/s. S. KUMAR’s ASSOCIATES AKM (JV) ...Respondent

J U D G M E N T

SANJAY KISHAN KAUL, J.

1. South Eastern Coalfields Ltd., appellant no.1 is a Government

company registered under the Companies Act, 1956. The

appellant no.1 floated a tender for the work of “Hiring of HEMM

and allied equipments including digging machines fitted suitable

slump breaker for excavating overburden (including drilling in all

kinds of strata/overburden) loading into tipples, transportation,

unloading the extra waited material and silt, dumping dozing

scrapping/removal bands preparation/maintenance of haul road

water sprinkling and spreading of material at the site shown and

[1]

as per direction of the management/Engineer In Charge of PatchD, Mahan I OCM of Bhatgaon Area” on 23.06.2009. Bids were

received and respondent was the successful bidder. In view

thereof a Letter of Intent (‘LoI’) was issued bearing No.2415

dated 05.10.2009 awarding the contract for a total work of

Rs.387.40 lakh. The LoI stated as under:

i. A direction was made to the respondents to mobilize

equipment for executing the work to handle minimum

allotted Cu.m. per day and “commence the work

immediately.” Towards the said objective the

respondent was directed to report to the Chief General

Manager, Bhatgaon Area for “immediate

commencement of work.”

ii. The respondent was called upon to deposit Performance

Security Deposit for a sum total to 5% of annualized

contract amount within 28 days from the date of receipt

of the LoI as per the provisions of the tender document.

iii. Sign the Integrity Pact before entering into the

agreement in accordance with the tender document.

iv. The work order would be issued and the agreement

would be executed at the Area Office.

[2]

v. The date of commencement of work may be intimated

to the issuing office and agreement may be concluded

within 28 days as per the provisions of the tender

document.

2. The respondent, in pursuance of the LoI, mobilized resources

at site and a measurement team was sent by appellant no.1 as

intimated vide letter dated 09.10.2009. On 28.10.2009, the

appellant issued a letter of site handover/acceptance

certificate, which was to be taken as the date of

commencement of the work.

3. The respondent apparently faced difficulties soon thereafter

and the letter dated 05.12.2009 of the respondent records that

though the work was started in all earnest and considerable

quantity of overburden had been removed, the truck mounted

drill machine employed by the respondent suffered a major

breakdown. The work, thus, had to be suspended for reasons

beyond the control of the respondent. The endeavour to

rectify the position or arrange alternative machinery did not

work out and the letter states that the purchase of new

machines was expected only after about three months. The

[3]

contractual relationship apparently deteriorated as on

09.12.2009, the appellants issued a letter alleging breach of

terms of contract and rules and regulations applicable by the

respondent. The appellant further asked the respondent to

show cause as to why penal action be not initiated of – (a)

termination of work; (b) blacklisting of the respondent

company; and (c) award of execution of work to other

contractor at the cost and risk of the respondent.

4. Communications in this behalf continued to be exchanged and

vide letter dated 12.12.2009, the appellants brought to the

notice of the respondents that they failed to submit the

performance security deposit which was required to be

submitted within 28 days from the date of the receipt of the

LoI as per the terms of the tender. Another show cause notice

was issued on 15.12.2009 intimating to the respondent that the

appellants were left with no option except to terminate the

work awarded to the respondent and get it executed by other

contractor at the risk and cost of the respondent in terms of

clause 9.0 of the General Terms & Conditions of the Notice

Inviting Tenders (‘NIT’) giving a ten days’ time to the

respondent to respond. It appears that there was no response

[4]

and on 23.12.2009, once again, a notice of termination was

issued. The respondent objected to the same, stating that the

work could not be executed at their risk and cost as the

General Terms & Conditions were never part of the NIT but

form the part of the contract which was never executed inter

se the parties. In substance, the respondent objected to the

invocation of the clause for the work to be carried out at their

risk and cost. The appellant could not rely on clause 9.0 of the

General Terms & Conditions. The final termination of work

was carried out vide letter dated 15.04.2010.

5. It appears that thereafter the work was awarded to another

contractor at a higher price and on account thereof a letter

dated 16.07.2010 was issued by the appellants to the

respondent seeking an amount of Rs.78,07,573/- being the

differential in the contract value between the respondent and

the new contractor.

6. The respondent filed a writ petition under Articles 226 & 227

of the Constitution of India seeking quashing of the

termination letter dated 15.04.2010 the recovery order dated

16.07.2010. The writ petition was contested by the appellants

who filed their counter affidavit. In terms of the impugned

[5]

judgment dated 07.11.2012, the Division Bench of the

Chhattisgarh High Court opined that there was no subsisting

contract inter se the parties to attract the general terms and

conditions as applicable to the contract. Various clauses of the

NIT were referred to and it was opined that there could not be

a valid contract inter se the parties as it was subject to

completion of certain formalities by the respondent, which

were never completed, i.e. furnishing of the performance

security; and the consequence was that the appellant was

within their rights to cancel the award of work and forfeit the

bid security. Thus, only the forfeiture of bid security was

upheld while the endeavour of the appellants to recover the

additional amount in award of contract to another contractor as

compared to the respondent was held not recoverable. We

may notice at the stage of admission of the writ petition and

issuing notice, the respondent was directed to deposit a sum of

Rs.10 lakh vide order dated 04.08.2010 and subject to the

same the endeavour to recover any amount from the

respondent was stayed. Thus, in the final order it was

mentioned that after deducting the bid security amount, the

balance amount out of Rs.10 lakh was to be refunded to the

[6]

respondent.

7. The appellant filed Special Leave Petition against the said

order and notice was issued on 08.02.2013. The direction to

refund the balance amount of Rs.10 lakh after deducting the

bid security amount was stayed till further orders. Leave was

granted on 13.04.2016.

Submissions of the Appellants

8. The substratum of the case of the appellants is based on a plea

that the requirement of deposit of performance security limited

to 5% of annualized contract amount within 28 days as well as

the requirement to sign the Integrity Pact before entering into

the agreement was not a pre-condition to the execution of the

agreement but a “condition subsequent”. By starting the

execution of the work from 28.10.2009, learned counsel

submitted, there was acceptance of the award of the work by

the respondent. In fact, the respondent vide letter dated

05.12.2009 acknowledged that they had removed considerable

amount of overburden and, thus, it is their own case that they

had carried out substantive work after mobilization of the

resources immediately after the issuance of LoI. Thus, the

[7]

absence of formal execution of the contract did not make a

difference to the claim of the appellants arising from the

breach of contract.

9. The distinction between a ‘condition precedent’ and a

‘condition subsequent’ was pleaded to be the crux of the issue

and had not been appreciated by the High Court. To support

his contention learned counsel referred to two judgments: (a)

Jawahar Lal Burman v. Union of India1

 and (b) Dresser

Rand S.A. v. Bindal Agro Chem Ltd. & Anr.2

10. In Jawahar Lal Burman3

 case the factual matrix was that the

tender was accepted by the respondent therein, which was

alleged to have concluded the contract. The respondent’s case

therein was that the contract was governed by the general

conditions of contract which included an arbitration

agreement. The Supreme Court inter alia examined whether

there was a concluded contract between the parties or not. The

tender submitted was on a condition that on the acceptance of

the tender, the contractor shall deposit the security deposit, at

the option of the Secretary, Department of Supply, within the

1 (1962) 3 SCR 769

2 (2006) 1 SCC 751

3 Supra

[8]

period specified by him. A further condition stipulated that if,

on being called upon to deposit the said security, the

contractor fails to provide security within the period, such

failure would constitute a breach of contract entitling the

opposite party to make other arrangements at the risk and

acceptance of the contractor. The contractor sought to argue

that the acceptance letter changed the pre-existing position and

made the security deposit a condition precedent to the

acceptance itself and, thus, there was no concluded contract.

We may notice that in the relevant letter issued by the

awarding party in this regard, calling upon the security deposit

of 10% to be deposited it was clearly mentioned that “the

contract is concluded by this acceptance and formal

acceptance of tender will follow immediately on receipt of

treasury receipt.” This Court, thus, discussed the ramification

of this sentence vis-à-vis the clause stating “subject to your

depositing 10% as security”. In construing the true effect of

the clause such requirement of deposit of security was held not

to be a condition precedent as the letter, as well as the

conditions of the tender, clearly stated that the contract was

concluded by its acceptance. Section 7 of the Indian Contract

[9]

Act, 1872 requires the acceptance of an offer to be absolute

and unqualified and not conditional. In the facts of the case

the acceptance was found to be unconditional and the steps

were taken as the contract was intended to be executed

expeditiously relating to delivery of coconut oil which had to

be supplied within 21 days. The security deposit was, thus,

opined to be a subsequent condition.

11. In Dresser Rand S.A.4

, the contract was to come into force

upon receipt of the LoI by the supplier. The Supreme Court

recognized the well settled principles of law that a LoI merely

indicates party’s intention to enter into a contract with the

other party in future and is not intended to bind either party

ultimately to enter into a contract. In this behalf observations

in an earlier judgment in Rajasthan Coop. Dairy Federation

Ltd. v. Maha Laxmi Mingrate Marketing Service (P) Ltd.5

were referred to at page 773 para 39, which reads as under:

“The letter of intent merely expressed an intention to enter

into a contract. ….There was no binding legal relationship

between the appellant and respondent No.1 at this stage

and the appellant was entitled to look at the totality of

circumstances in deciding whether to enter into a binding

contract with respondent No.1 or not.”

4 Supra

5 (1996) 10 SCC 405

[10]

This was, however, followed by a caveat that it could also not

be disputed that a letter of intent may be construed as a letter

of acceptance if such intention is evident from its terms. It is

not uncommon in contracts involving detailed procedure, that

in order to save time, a letter of intent communicating the

acceptance of the offer is issued asking the contractor to start

the work with a stipulation that the detailed contract would be

drawn up later. Though such a letter may be termed as a letter

of intent, it may amount to acceptance of the offer resulting in

a concluded contract between the parties. This is a matter to

be decided with “reference to the terms of the letter.” It was

further observed that where the parties to a transaction

exchanged letters of intent, the terms of such letters may have

negative contractual intention but where the language does not

have negative contractual intention, it is open to the courts to

hold that the parties are bound by the document and the courts

would be inclined to do so where the parties have acted on the

document for a long period of time or have expended

considerable sums of money in reliance on it.

12. The terms of LoI were adverted to, more specifically clause

[11]

(L) therein, which stated that “this contract will come into

force upon receipt of this letter of intent by supplier.” In the

different clauses the LoI were referred to as “this order” and

“this contract” and it was, thus, argued to that the LoI be

treated as purchase orders. The Court harmoniously construed

the terms of the LoI to find that the effect of the LoI was that

if the purchase orders were placed and LCs were opened the

supplier was bound to effect supplies within the stipulated

time at the prices stated in the LoI. It was not interpreted as a

work order despite the wording utilized in the LoI.

Submissions of the Respondent

13. Learned counsel for the respondent, on the other hand, first

sought to emphasise the aspect discussed in para 39 of the

judgment in Dresser Rand S.A.6

case, which opined what an

LoI was by referring to the earlier view of this Court in

Rajasthan Coop. Dairy Federation Ltd.7

 case. He further

sought to refer the judgment of this Court in Bhushan Power

& Steel Ltd. v. State of Odisha8

 and drew our attention to what

an LoI was. The nomenclature of the letter would not be the

6 Supra

7 Supra

8 (2017) 2 SCC 125

[12]

determinative factor but the substantive nature of the letter

would determine whether it can be treated as an LoI, which as

per the legal dictionary means a preliminary understanding

between the parties who intend to make a contract or join

together in another action. Some earlier precedents were also

referred to.9

 In fact the judgment in Dresser Rand S.A.10 case

was also referred to therein, more specifically paras 39 & 40.

The LoI in question was held not to be a binding contract

more specifically because entering into a lease license with

prospective licensee would require “previous approval” of the

Central Government. The LoI was held to amount to only an

intention to enter into a contract which would take place after

all other formalities are completed.

14. In order to substantiate his pleas, learned counsel for the

respondent referred to various clauses of the NIT and the LoI.

The relevant clauses in the tender document referred to are as

under:

“29. Notification of the award and signing of agreement:

29.1 The bidder, whose bid has been accepted will be

notified of the award by the employer prior to expiration of

9 Rishi Kiran Logistics Private Limited v. Board of Trustees of Kandla Port Trust

and Others (2015) 13 SCC 233

10 (supra)

[13]

the bid validity period by cable, telex and facsimile

confirmed by registered letter. This letter (hereinafter and

in Conditions of Contract called the “Letter of

Acceptance”) will state the sum that the Employer will pay

the Contractor in consideration of execution and

completion of the Works by the contractor as prescribed by

the Contract (hereinafter and in the Contract called “the

Contract Price”).

29.2 The notification of award will constitute the

formation of Contract, subject only to the furnishing of a

Performance Security/Security Deposit in accordance with

clause 30.

29.3 The agreement will incorporate all agreements

between the employer and the successful bidder within 28

days following the notification of award along with the

letter of acceptance.

30. Performance Security/Security Deposit

30.1 Security Deposit shall consist of two parts:

a. Performance Security to be submitted at award of

work and

b. Retention Money to be recovered from running bills.

The Security Deposit shall bear no interest.

30.2 The performance Security should be 5% of

annualized value of the contract amount and should be

submitted within 28 days of receipt of LOA by the

successful bidder in any of the form given below:

- A Bank Guarantee in the form given in the bid

document.

- Govt. Securities, FDR or any other form of deposit

stipulated by the owner.

[14]

- Demand Draft drawn in favour of the South Eastern

Coal Fields Ltd. on any Schedule Bank payable at its

Branch at……….

The bid security deposit in the form of Bank

Guarantee shall be duly discharged and returned to the

contractor. The bid security deposited in the form of

demand draft shall be adjusted against the initial security

deposit.

If the performance security is provided by the successful

bidder in the form of bank guarantee it shall be issued

either:

a. at bidder’s option by a nationalized/scheduled Indian

bank, or

b. by a foreign bank located in India and acceptable to

the employer,

c. the validity of the bank guarantee shall be for a

period of one year or ninety days beyond the period of

contract, whichever is more.

Failure of the successful bidder to comply with the

requirement as above shall constitute sufficient ground for

cancellation of the award of work and forfeiture of the bid

security.

34. Integrity Pact

SECL has signed MOU with M/s. Transparency

International India for implementation of integrity pact in

contracts for works valued at Rs.1.00 crore and above. The

integrity pact document to be signed by the bidders is

enclosed vide Annexure “D”. Submission of integrity pact

document duly signed, stamped and accepted is mandatory

for this tender and is integral part of the tender document.

In case this is not submitted the tender may be considered

as not substantially responsive and may be rejected.

[15]

…. …. …. …. ….

Section 3: Conditions of contract/General Terms and

Conditions

1. Definition: ix. The “Contract” shall mean the notice

inviting tender, the tender as accepted by the company and

the formal agreement executed between the company and

the contractor together with the documents referred to

therein including general terms and conditions, special

conditions, if any, schedule quantities with rates and

amount, schedule of work.

2.0 Contract Documents

i. Articles of agreement,

ii. Notice inviting tender,

iii. Letter of Acceptance of tender indicating deviations,

if any, from the conditions of contract incorporated in the

bid/tender document issued to the bidder,

iv. Conditions of contract including general terms and

conditions, additional terms and conditions, special

conditions, if any etc. forming part of agreement,

v. Scope of works/Bills of quantities and

vi. Finalised work programme.”

15. Learned counsel laid great emphasis on clause 29.2 aforesaid,

which provided that notification of award will constitute the

formation of contract, “subject only” to the furnishing of a

Performance Security/Security Deposit in accordance with

[16]

clause 30. The agreement to be executed was to incorporate

all the terms inter se the parties. The consequence of not

furnishing the security deposit was specified in clause 30.2 at

the end, i.e., it was to constitute sufficient ground for

cancellation of the award work and forfeiture of the bid

security. In terms of clause 34 requiring Integrity Pact

document to be submitted duly signed, the consequence of not

doing so was that the tender was to be considered as not

substantially responsive and may be rejected. Lastly under

Section 3, the Conditions of contract/General Terms and

Conditions where it was defined in clause (ix) that a contract

would mean the NIT and the formal agreement to be executed

between the appellants and the respondent together with the

documents referred to therein indicating the general terms and

conditions, special conditions, if any, schedule quantities with

rates and amount, schedule of work.

16. It was further contended that after acceptance of tender and on

execution of contract, work order had to be issued which had

also not been issued as the preliminaries were not complied

with. The LoI was also referred to in the aforesaid context to

show that nothing was done in pursuance thereto except

[17]

mobilization of the resources and commencement of the work,

and that by itself could not be said to be a concluded contract.

In fact, what was submitted by learned counsel for the

respondent was that seeing the ground realities, the respondent

found that it was not feasible to execute the contract and, thus,

walked away from it, the consequence of which could only be

the forfeiture of the bid security amount as directed by the

impugned order, an aspect assailed by the respondent by filing

a cross appeal. The respondent has not been paid by the

appellant for whatever they may have done.

17. A reference was also made to the judgment in State of

Madhya Pradesh And Anr. v. Firm Gobardhan Dass Kailash

Nath11 where in respect of a tender for Government sale initial

deposit of 25% of purchase price was an essential precondition for acceptance or sanction of tender was not

complied with. It was held that taking into consideration what

was required to enter into a contract, i.e., in writing and in

prescribed form and 25% amount not being deposited, it could

not be said that any concluded contract was arrived at between

the parties.

11 AIR 1973 SC 1164 :: (1973) 1 SCC 668

[18]

Conclusion

18. A consideration of the matter in the conspectus of the

aforesaid pleas leads to a conclusion that it cannot be said that

a concluded contract had been arrived at inter se the parties.

19. We have already reproduced aforesaid the terms of the letter of

award and what it mandated the respondent to do. None of the

mandates were fulfilled except that the respondent mobilized

the equipment at site, handing over of the site and the date of

commencement of work was fixed vide letter dated

28.10.2009. Interestingly this letter has been addressed to the

Sub Area Manager of the appellant by the office of the

appellant. The respondent, thus, neither submitted the

Performance Security Deposit nor signed the Integrity Pact.

Consequently, the work order was also not issued nor was the

contract executed. Thus, the moot point would be whether

mobilization at site by the respondent would amount to a

concluding contract inter se the parties. The answer to the

same would be in the negative.

20. We would like to state the issue whether a concluded contract

had been arrived at inter se the parties is in turn dependent on

[19]

the terms and conditions of the NIT, the LoI and the conduct

of the parties. The judicial views before us leave little doubt

over the proposition that an LoI merely indicates a party’s

intention to enter into a contract with the other party in

future.12 No binding relationship between the parties at this

stage emerges and the totality of the circumstances have to be

considered in each case. It is no doubt possible to construe a

letter of intent as a binding contract if such an intention is

evident from its terms. But then the intention to do so must be

clear and unambiguous as it takes a deviation from how

normally a letter of intent has to be understood. This Court

did consider in Dresser Rand S.A.13 case that there are cases

where a detailed contract is drawn up later on account of

anxiety to start work on an urgent basis. In that case it was

clearly stated that the contract will come into force upon

receipt of letter by the supplier, and yet on a holistic analysis –

it was held that the LoI could not be interpreted as a work

order.

21. Similarly if we construe the documents as discussed in the

12 Dresser Rand S.A. (supra); Rajasthan Coop. Dairy Federation Ltd. (supra)

13 Supra

[20]

judgment of this Court in Jawahar Lal Burman14 case it is

unequivocally mentioned that “contract is concluded by this

acceptance and formal acceptance of tender will follow

immediately on receipt of treasury receipt.” Thus, once again,

it has been stipulated as to at what time a contract would stand

concluded even though it was later subject to deposit of the

security amount. It was in these circumstances that the

requirement of security deposit was treated not as a condition

precedent but as a condition subsequent. We have to also

appreciate the nature of contract which was for immediate

requirement of the full quantity of coconut oil to be supplied

within 21 days. It was also explicitly mentioned in the LoI

itself that any failure to deposit the stipulated amount would

be treated as a breach of contact. This is not the case here,

where the consequence was simply forfeiture of the bid

security amount, and cancellation of the ‘award’ and not the

‘contract’.

22. If we compare the aforesaid scenario in the present case, the

period for execution of the contract was one year. The

respondent worked at the site for a little over the month,

14 Supra

[21]

facing certain difficulties – it is immaterial whether the same

was of the own making of the respondent or attributable to the

appellants. No amount was paid for the work done. The

respondent failed to comply with their obligations under the

LoI. It is not merely a case of the non-furnishing of

Performance Security Deposit but even the Integrity Pact was

never signed, nor work order issued on account of failure to

execute the contract. We are, thus, of the view that none of the

judgments cited by learned counsel for the appellants would

come to their aid in the contractual situation of the present

case. The judgments referred by learned counsel for the

appellants Jawahar Lal Burman15 case and Dresser Rand

S.A.16 case, if one may say so are not directly supporting either

of the parties but suffice to say that to determine the issue

what has to be seen are the relevant clauses of the NIT and the

LoI. On having discussed the non-compliance by the

respondent of the terms of the LoI we turn to the NIT. Clause

29.2 clearly stipulates that the notification of award will

constitute the formation of the contract “subject only” to

furnishing of the Performance Security/Security Deposit.

15 Supra

16 Supra

[22]

Thus, it was clearly put as a pre-condition and that too to be

done within 28 days following notification of the award. The

failure of the successful bidder to comply with the requirement

“shall constitute sufficient ground for cancellation of the

award work and forfeiture of the bid security” as per clause

30.2. If we analyse clause 34 dealing with the Integrity Pact

the failure to submit the same would make the tender bid “as

not substantially responsive and may be rejected.”

23. We may also add that the definition of what constitutes a

contract as per clause (ix) itself includes the NIT, the

acceptance of the tender, the formal agreement to be executed

between the parties post contractor furnishing all the

documents and the bid security amount.

24. The result of the aforesaid is that as rightly held in terms of the

impugned order all that the appellants can do is to forfeit the

bid security amount and, thus, it was so directed. Since as a

pre-condition of any coercive action against the respondent,

the High Court called upon the appellants to deposit a sum of

Rs.10 lakh in terms of the interim order dated 04.08.2010, a

direction is made to deduct the bid security amount out of the

sum of Rs.10 lakh and to refund the balance amount to the

[23]

respondent. The needful would now have to be done within

two months as in terms of the interim order of this Court dated

08.02.2013 such refund has been stayed.

25. We accordingly dismiss the appeal leaving the parties to bear

their own costs.

26. Interim order stands discharged.

……...............................…..J.

 [SANJAY KISHAN KAUL]

……....................................J.

 [HEMANT GUPTA]

NEW DELHI,

July 23, 2021.

[24]

On careful examination of the guidelines/ instructions issued in G.O.Rt.No.100, dated 16.07.2021, in the considered opinion of this Court, the guidelines/instructions are issued in the interest of public in general and devotees/Musallies of Muslim community in particular in view of the COVID-19 pandemic which caused loss to the lives of the people of the country never seen before. Lives of the people is important than the religious beliefs. Therefore, in the considered opinion of this Court, the G.O.Rt.No.100, dated 16.07.2021 is issued in the interest of public at large in view of the COVID-19 pandemic and as such, it is not violative of Article: 25 and 26 of the Constitution of India.

On careful examination of the guidelines/ instructions issued in G.O.Rt.No.100, dated 16.07.2021, in the considered opinion of this Court, the guidelines/instructions are issued in the interest of public in general and devotees/Musallies of Muslim community in particular in view of the COVID-19 pandemic which caused loss to the lives of the people of the country never seen before. Lives of the people is important than the religious beliefs. Therefore, in the considered opinion of this Court, the G.O.Rt.No.100, dated 16.07.2021 is issued in the interest of public at large in view of the COVID-19 pandemic and as such, it is not violative of Article: 25 and 26 of the Constitution of India.

AP HIGH COURT

 1

HON’BLE SRI JUSTICE BATTU DEVANAND

WRIT PETITION No.14231 OF 2021

ORDER:

This writ petition has been filed by the petitioner

seeking to issue a writ or direction more particularly in

the nature of a Writ of Mandamus under Article 226 of

the Constitution of India declaring the action of the

respondents in issuing G.O.Rt.No.100, dated

16.07.2021 imposing restrictions on Eid-ul-Adha

(Bakrid) prayers at Eidgahs and directing to offer

prayers in Masjids only is illegal and arbitrary, customs

and beliefs of Islam and violation of Art.25 & 26 of

Constitution of India and consequently permit the

people of Muslim community belonging to Nellore to

offer prayers Eid-ul-Adha (Bakrid) in Bara Shahid

Eidgah and other Eidgahs situated at Nellore on

20.07.2021 or 21.07.2021 (depending on moon sight)

by suspending the G.O.Rt.No.100, dated 16.07.2021

and pass such other order or orders may deem fit and

proper in the circumstances of the case.

2) Heard Sri C. Subodh, learned counsel for the

petitioner and the learned Government Pleader for 

 2

Social Welfare appearing for the respondents and

perused the material available on record.

3) The petitioner is the resident of Nellore and

belongs to Muslim community and has strong belief in

Islam Religion and faith. Eid-ul-Adha (also called as

Festival of Sacrifice or Bakrid) is one of the two

important festivals celebrated within Islam (the other

being Eid-Al-Fitr).

4) Learned counsel for the petitioner submits that the

devotees on Eid-Al-Adha perform prayers at Eidgah.

The Eidgah is defined as Open Air enclosure usually

outside the city (or at outskirts) reserved for Eid

Prayers offered in the morning of Eid-Al-Fitr and Eid-AlAdha. It is usually a public place i.e., not used for

prayers at other times of the year. On the day of Eid,

the first thing Muslims do in the morning is gather

usually at a large open ground and offer special prayers

in accordance with Sunnah (Tradition of Mohammed).

5) Learned counsel for the petitioner further submits

that the Eid Al-(Adha) prayer is performed any time

after sun completely rises up to just before entering of 

 3

Zuhr Time on the 10th of Dhu al-Hijjah. The Eid

prayers must be offered in congregation. The

performing The Eid Al-(Adha) prayers at Eidgah without

any valid excuse, not offering Eid Prayers in the Eidgah

is contrary to Sunnah (Tradition of Mohammed).

6) The 2nd respondent informed the 1st respondent

vide letter No.E1/20/2019-AP, dated 12.07.2021 that

the Government of Andhra Pradesh on 03.05.2021 as

imposed curfew with effect from 05.05.2021 and

subsequently extended time and dates from time to

time to take all precautionary measures D-linking the

spread of COVID pandemic. It is further stated that

this year Eid Ul Azha (Bakrid) is scheduled to be held

on 21.07.2021 (subject to moon sight) and requested

for issuance of necessary instructions to District

Collectors, Commissioners, Superintendents of Police in

respect of performance of Eid Prayers during Eid-UlAzha and for Qurbani. Considering the same, the 1st

respondent issued G.O.Rt.No.100, dated 16.07.2021

issued guidelines to be followed during Eid-Ul-Adha

(Bakrid) festival on 21.07.2021.

 4

7) The main grievance of the petitioner is that apart

from the other guidelines issued, prohibiting Eid-UlAdha (Bakrid) prayers Eidgahs and directing to offer

prayers in Masjids only as illegal, arbitrary, customs

and beliefs of Islamic and violation of Article 25 and 26

of the Constitution of India.

8) On the other hand, learned Government Pleader

appearing for the respondents submits that

G.O.Rt.No.100, dated 16.07.2021 is issued in the

interest of public in view of COVID-19 pandemic and

sought for dismissal of the writ petition, as interference

of this Court is not warranted.

9) Having heard the submissions of the learned

counsel and upon perusal of material available on

record, it appears that the Government of Andhra

Pradesh on 03.05.2021 has imposed curfew with effect

from 05.05.2021 and subsequently extended time and

dates from time to time to take all precautionary

measures in delinking the spread of COVID pandemic.

The 2nd respondent vide letter, dated 12.07.2021

brought to the notice of the 1st respondent that

Government have issued necessary precautionary 

 5

guidelines to be followed especially during the Eid-UlAzha (Bakrid) Eid prayers for the previous year in view

of the pandemic COVID-19. The 2nd respondent

requested the 1st respondent for issuance of necessary

instructions to the District Collectors and

Commissioners/Superintendents of Police in respect of

performance of Eid prayers during Eid-Ul-Azha and for

Qurbani is scheduled to be held on 21.07.2021 (subject

to moon sight).

10) Considering these facts, the 1st respondent issued

certain guidelines/instructions to be followed in

ensuring Eid-Ul-Azha (Bakrid Festival on 20.07.2021 or

21.07.2021 depending on the moon sight.

11) On careful examination of the guidelines/

instructions issued in G.O.Rt.No.100, dated

16.07.2021, in the considered opinion of this Court, the

guidelines/instructions are issued in the interest of

public in general and devotees/Musallies of Muslim

community in particular in view of the COVID-19

pandemic which caused loss to the lives of the people

of the country never seen before. Lives of the people is

important than the religious beliefs. 

 6

12) Therefore, in the considered opinion of this Court,

the G.O.Rt.No.100, dated 16.07.2021 is issued in the

interest of public at large in view of the COVID-19

pandemic and as such, it is not violative of Article: 25

and 26 of the Constitution of India.

13) Accordingly, this Writ Petition is dismissed. There

shall be no order as to costs.

As a sequel, miscellaneous petitions pending, if

any, shall stand closed.

______________________________

JUSTICE BATTU DEVANAND

Date: 20.07.2021

PGR

 7

HON’BLE SRI JUSTICE BATTU DEVANAND

WRIT PETITION No.14231 OF 2021

Dt: 20.07.2021

PGR

The petitioner is lady who has been taking shelter in the house of her parents at Rajahmundry which is at a distance of 200 kms from Vijayawada. The submissions made by the petitioner in the petition have not been controverted by the respondent who failed to respond to the notice sent to him. It appears that in two cases filed by the petitioner the respondent has made his appearance and that no prejudice will be caused to him if the case filed by him for restitution of conjugal rights is transferred to Family Court at Rajahmundry. The difficulty of the petitioner to attend for each and every adjournment in which is filed by her husband in the court of Judge, Family Court-cum-XIV Additional and Sessions Court, Vijayawada by undertaking journey of 200 kms from the place of her residence at Rajahmundry can be a reasonable ground to accede to her request made for transfer of HMOP filed by her husband for restitution of conjugal rights to the Family Court at Rajahmundry.

The petitioner is lady who has been taking shelter in the house of her parents at Rajahmundry which is at a distance of 200 kms from Vijayawada. The submissions made by the petitioner in the petition have not been controverted by the respondent who failed to respond to the notice sent to him. It appears that in two cases filed by the petitioner the respondent has made his appearance and that no prejudice will be caused to him if the case filed by him for restitution of conjugal rights is transferred to Family Court at Rajahmundry. The difficulty of the petitioner to attend for each and every adjournment in  which is filed by her husband in the court of Judge, Family Court-cum-XIV Additional and Sessions Court, Vijayawada by undertaking journey of 200 kms from the place of her residence at Rajahmundry can be a reasonable ground to accede to her request made for transfer of HMOP filed by her husband for restitution of conjugal rights to the Family Court at Rajahmundry. Having regard to the submissions made on behalf of the petitioner, the transfer petition filed by the petitioner is allowed, ordering for transfer of HMOP.No.725 of 2020 from the file of Judge, Family Court-cum-XIV Additional and Sessions Court, Vijayawada to the Family Court at Rajahmundry, for its disposal in accordance with law. No costs. 

AP HIG COURT

 THE HON'BLE Ms JUSTICE J.UMA DEVI

Tr.C.M.P.No.61 of 2021

ORDER:

This petition is filed under Section 24 of CPC by Smt.Sapavath

Suddepthi, W/o.Sapavath Mahesh Sai Kumar Naik seeking transfer of

HMOP.No.725 of 2020 from the file of Family Court-cum-XIV Additional and

Sessions Court, Vijayawada to the Family Court at Rajahmundry, where she

is taking shelter in the house of her parents.

 Notice is ordered as against respondent. Despite service of notice,

he has not entered appearance.

 Petitioner’s contention is that having not been able to bear the

harassment of her husband she has reached to her parents’ house in the

month of March, 2019 and since then she is residing there. She has filed a

case for maintenance as against the respondent herein and the same is

pending for consideration before the court of IV Judicial 1st Class Chief

Metropolitan Magistrate at Rajahmundry. She also has filed a case as

against the respondent under Domestic Violence Act and the same is

pending before the court of VI Additional Judicial 1st Class Magistrate at

Rajahmundry. The respondent made appearance in both the cases. As a

counterblast to the cases filed by her, the respondent has filed

HMOP.No.725 of 2020 for restitution of conjugal rights and the same is

pending before the Judge, Family Court-cum-XIV Additional and Sessions

Court, Vijayawada. Her assertion is that she has to travel a distance of 200

kms necessarily to attend the court at Vijayawada where the application

made by her husband for restitution of conjugal rights is pending for

consideration; It becomes difficult for her to appear for each and every

adjournment in HMOP.No.725 of 2020 which is pending before the Family

Court-cum-XIV Additional and Sessions Court, Vijayawada by undertaking 

 JUD,J

Tr.CMP.61 of 2021

2

journey of 200 kms from Rajahmundry. Therefore, she is constrained to

approach this court seeking transfer of HMOP.No.725 of 2020 from the file

of Judge, Family Court-cum-XIV Additional and Sessions Court, Vijayawada

to the Family Court at Rajahmundry.

The petitioner is lady who has been taking shelter in the house of

her parents at Rajahmundry which is at a distance of 200 kms from

Vijayawada. The submissions made by the petitioner in the petition have

not been controverted by the respondent who failed to respond to the

notice sent to him. It appears that in two cases filed by the petitioner the

respondent has made his appearance and that no prejudice will be caused

to him if the case filed by him for restitution of conjugal rights is

transferred to Family Court at Rajahmundry.

The difficulty of the petitioner to attend for each and every

adjournment in HMOP.No.725 of 2020 which is filed by her husband in the

court of Judge, Family Court-cum-XIV Additional and Sessions Court,

Vijayawada by undertaking journey of 200 kms from the place of her

residence at Rajahmundry can be a reasonable ground to accede to her

request made for transfer of HMOP filed by her husband for restitution of

conjugal rights to the Family Court at Rajahmundry.

 Having regard to the submissions made on behalf of the petitioner,

the transfer petition filed by the petitioner is allowed, ordering for transfer

of HMOP.No.725 of 2020 from the file of Judge, Family Court-cum-XIV

Additional and Sessions Court, Vijayawada to the Family Court at

Rajahmundry, for its disposal in accordance with law. No costs.

Pending miscellaneous applications, if any, shall stand closed in

consequence.

Sd/-_______________

J.UMA DEVI,J

Date: 20.07.2021

Dsr 

Recently Andhra Pradesh High Court implemented a procedure whereby the concerned Court Masters are uploading the daily proceedings / orders / judgments on the same day. This Court deems it appropriate to issue the following guidelines. (a) Parties/Advocates shall download the order copy from the High Court’s Website along with case details which are available in the case status information. (b) While filing the memo on behalf of accused for furnishing sureties, the Advocate shall State in the memo that he/she has downloaded the order copy from the High Court’s Website. The concerned Administrative Officer / Chief Ministerial Officer of the Court shall verify the order from the High Court’s Website and make an 5 endorsement to that effect and then shall place the same before the Court. (c) The Public Prosecutor shall also obtain necessary instructions in this regard and assist the Court. (d) The Presiding Officer on the same day shall dispose of the same and dispatch the release order to the concerned jail authorities forthwith through email or any other electronic mode. (e) In cases of anticipatory bail, the burden to verify the authenticity of the copy is on the concerned Station House Officer and if necessary, he should obtain necessary instructions from the Public Prosecutor’s Office and complete the process on the same day expeditiously as per law. (f) Registrar (Judicial) shall communicate copy of this order to (1) The Principal Secretary for Home Affairs, Andhra Pradesh; (2) The Director General of Police, Andhra Pradesh; (3) The Director of Prosecution, who in turn shall sensitize the Police Officers / Station House Officers / Public Prosecutors and ensure implementation of this order. (g) Registrar (Judicial) shall communicate copy of this order to all the Principal District Judges in the State, who in turn shall sensitize all the Presiding Officers and ensure implementation of this order. (h) Registrar (Judicial) is further directed to circulate the copy of this order to all the Bar Associations in the State through the Principal District Judges, so that they can effectively address their clients’ cause. (i) Registrar (Judicial) shall also issue a separate notification in this regard and the same shall be displayed in the High Court’s Website. 6 11. This order shall come into force from 26.07.2021.

Recently Andhra Pradesh High Court implemented a procedure whereby the concerned Court Masters are uploading the daily proceedings / orders / judgments on the same day. This Court deems it appropriate to issue the following guidelines. (a) Parties/Advocates shall download the order copy from the High Court’s Website along with case details which are available in the case status information. (b) While filing the memo on behalf of accused for furnishing sureties, the Advocate shall State in the memo that he/she has downloaded the order copy from the High Court’s Website. The concerned Administrative Officer / Chief Ministerial Officer of the Court shall verify the order from the High Court’s Website and make an 5 endorsement to that effect and then shall place the same before the Court. (c) The Public Prosecutor shall also obtain necessary instructions in this regard and assist the Court. (d) The Presiding Officer on the same day shall dispose of the same and dispatch the release order to the concerned jail authorities forthwith through email or any other electronic mode. (e) In cases of anticipatory bail, the burden to verify the authenticity of the copy is on the concerned Station House Officer and if necessary, he should obtain necessary instructions from the Public Prosecutor’s Office and complete the process on the same day expeditiously as per law. (f) Registrar (Judicial) shall communicate copy of this order to (1) The Principal Secretary for Home Affairs, Andhra Pradesh; (2) The Director General of Police, Andhra Pradesh; (3) The Director of Prosecution, who in turn shall sensitize the Police Officers / Station House Officers / Public Prosecutors and ensure implementation of this order. (g) Registrar (Judicial) shall communicate copy of this order to all the Principal District Judges in the State, who in turn shall sensitize all the Presiding Officers and ensure implementation of this order. (h) Registrar (Judicial) is further directed to circulate the copy of this order to all the Bar Associations in the State through the Principal District Judges, so that they can effectively address their clients’ cause. (i) Registrar (Judicial) shall also issue a separate notification in this regard and the same shall be displayed in the High Court’s Website. 6 11. This order shall come into force from 26.07.2021.

AP HIGH COURT

THE HON’BLE SMT. JUSTICE LALITHA KANNEGANTI

CRIMINAL PETITION NO.3933 of 2021

ORDER:-

 This petition is filed under Sections 437 and 439 of Code

of the Criminal Procedure, 1973 (for short ‘Cr.P.C.’) seeking

regular bail to the petitioner/ A-2 in connection with Crime

No.38 of 2020 of Mothugudem Police Station, East Godavari

District for the offence punishable under Section Section

20(b)(ii)(C) r/w Section8 (c) of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (for brevity “NDPS Act”).

2. The case of prosecution is that on 03.09.2020 on credible

information about illegal transportation of ganja, the respondent

Police rushed to Daralamma Temple, outskirts of Polluru village

of Chinturu Mandal and while conducting vehicle check at

about 11.00 AM, they found a Bolero pick-up van bearing

registration No.AP 24 TB 1550 coming from Donkarai

proceeding towards Lakkavaram Junction. On seeing the police,

the inmates of the said Bolero van tried to escape from the spot,

but the police apprehended them and on search, they found 300

KGs of ganja. The police seized the contraband, registered the

crime, arrested the petitioner and remanded him to judicial

custody on the same day.

3. Heard Sri G.Venkata Reddy, learned counsel for the

petitioner and the learned Public Prosecutor for the respondentState. 

2

4. Learned counsel for the petitioner/A-2 submits that the

petitioner has nothing to do with the alleged offence and in fact,

the petitioner was engaged by A-1 on payment of Rs.15,000/-

who accompanied him. Further the officer who acted as a

gazetted officer while conducting the search and seizure is a

veterinary doctor and the said doctor is not a competent person

to act as a gazetted officer under Sections 42, 43 and 50 of the

NDPS Act. Learned counsel for the petitioner further submits

that the entire investigation is completed and the petitioner is

languishing in jail from 03.09.2020.

5. On the other hand, the learned Additional Public

Prosecutor submits that on 13.10.2020 charge sheet was filed.

6. Taking into consideration the fact that the entire

investigation is completed and charge sheet is filed and further

the petitioner is languishing in jail from 03.09.2020, this Court

deems it appropriate to grant bail to the petitioner. However, on

certain conditions.

7. Accordingly, the petitioner/ A-2 shall be enlarged on bail

on execution of self bond for Rs.2,00,000/- (Rupees two lakhs

only) with two sureties for a like sum each to the satisfaction of

the Court of the Additional Judicial First Class Magistrate,

Rampachodavaram. On such release, the petitioner shall appear 

3

before the Station House Officer, Mothugudem Police Station,

East Godavari District, once in a month till completion of trial.

8. This Court having criminal roster from the last couple of

months has noticed that in spite of best efforts by the Registry,

there is significant delay in issuing the certified copies of the

orders. This Court is conscious of the large number of cases

pending before the Court, due to dearth of staff, it is difficult to

issue the order copies within a short span of time. In cases,

where the accused are entitled for statutory bail as they are

languishing in jail for more than 60, 90 and 180 days, when

default bail is granted, it was brought to the notice of the Court

that there was considerable delay in dispatching the copy of

orders. Hence, this Court feels that an alternative mechanism

shall be evolved to address the plight of these undertrial

prisoners/accused. Recently, the Hon’ble Apex Court has also

taken a serious note of this issue.

9. Protection of personal liberty of an individual is

undeniably a constitutional duty of this Court. Our criminal

justice system always gives paramount consideration to the

protection of the rights of the accused. Article 21 of the

Constitution of India mandates that the personal liberty of an

accused can be curtailed only after strict compliance with the

procedure established by law. Sections 438 and 439 of Cr.P.C.

ensures that the accused is not deprived of his personal liberty

arbitrarily. The Hon’ble Apex Court in catena of cases has held

that speedy adjudication process is one of the main facets that 

4

constitute the essence of access to justice and without it, access

to justice as a constitutional value will be a mere illusion.

Denial of this right undermines public confidence in the justice

delivery system. It is also settled law that the right of an

accused to have his bail application heard by the Court within a

reasonable time has been entrenched as a constitutional

liberty. At the same time, disposal of bail application without

furnishing the order copy within a reasonable time will not place

the accused in a better position. Mere emphasizing that an

accused has an indefeasible fundamental right to bail itself is

not sufficient without furnishing the copy of the order.

10. This is high time the Courts shall address these issues

with a progressive approach by adopting the innovative

methods. Recently Andhra Pradesh High Court implemented a

procedure whereby the concerned Court Masters are uploading

the daily proceedings / orders / judgments on the same day.

This Court deems it appropriate to issue the following

guidelines.

(a) Parties/Advocates shall download the order copy from

the High Court’s Website along with case details which

are available in the case status information.

(b) While filing the memo on behalf of accused for furnishing

sureties, the Advocate shall State in the memo that

he/she has downloaded the order copy from the High

Court’s Website. The concerned Administrative Officer /

Chief Ministerial Officer of the Court shall verify the

order from the High Court’s Website and make an 

5

endorsement to that effect and then shall place the same

before the Court.

(c) The Public Prosecutor shall also obtain necessary

instructions in this regard and assist the Court.

(d) The Presiding Officer on the same day shall dispose of

the same and dispatch the release order to the

concerned jail authorities forthwith through email or any

other electronic mode.

(e) In cases of anticipatory bail, the burden to verify the

authenticity of the copy is on the concerned Station

House Officer and if necessary, he should obtain

necessary instructions from the Public Prosecutor’s

Office and complete the process on the same day

expeditiously as per law.

(f) Registrar (Judicial) shall communicate copy of this order

to (1) The Principal Secretary for Home Affairs, Andhra

Pradesh; (2) The Director General of Police, Andhra

Pradesh; (3) The Director of Prosecution, who in turn

shall sensitize the Police Officers / Station House

Officers / Public Prosecutors and ensure implementation

of this order.

(g) Registrar (Judicial) shall communicate copy of this order

to all the Principal District Judges in the State, who in

turn shall sensitize all the Presiding Officers and ensure

implementation of this order.

(h) Registrar (Judicial) is further directed to circulate the

copy of this order to all the Bar Associations in the State

through the Principal District Judges, so that they can

effectively address their clients’ cause.

(i) Registrar (Judicial) shall also issue a separate

notification in this regard and the same shall be

displayed in the High Court’s Website. 

6

11. This order shall come into force from 26.07.2021.

12. The Judicial Officers in the State shall bring to the notice

of the Registrar (Judicial), the issues / hitches, if any, in

implementing the directions of this Court. In case of

anticipatory bails, the Police Officials shall bring to the notice of

the Public Prosecutor, High Court about their difficulties in

implementing the orders of this Court and the Registrar

(Judicial) and learned Public Prosecutor shall place the same

before this Court by the next date of hearing i.e. 31.08.2021.

13. These directions will be in force until further orders or

suitable Rules are framed in this regard. It is needless to

mention, if any clarification or modification is required for

effective implementation, they will be examined accordingly on

the next date of hearing.

14. In spite of all odds, determined efforts are required for

achieving the goal. Ways and means have to be found out by

constant thinking and monitoring. It is the responsibility of all

the stakeholders to uphold the public confidence in the justice

delivery system by giving timely justice which includes

furnishing the copies of orders/judgments.

15. Post on 31.08.2021.

 ___________________________

 LALITHA KANNEGANTI, J

22nd July, 2021

PVD 

7

THE HON’BLE SMT. JUSTICE LALITHA KANNEGANTI

CRIMINAL PETITION No.3933 of 2021

22nd July, 2021

PVD 

Interim custody of crime vehicle = 457. Procedure by police upon seizure of property. (1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property. (2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, 3 to appear before him and establish his claim within six months from the date of such proclamation. There is no dispute with regard to the petitioner’s ownership over the vehicle. It is clear that there is no bar under the NDPS Act on the Courts to order for interim custody of a vehicle which is seized in a crime registered for the offences under the said Act. Section 63 of the NDPS Act reads thus: “(1) In the trial of offences under this Act, whether the accused is convicted or acquitted or discharged, the court shall decide whether any article or thing seized under this Act is liable to confiscation under section 60 or section 61 or section 62 and, if it decides that the article is so liable, it may order confiscation accordingly. (2) Where any article or thing seized under this Act appears to be liable to confiscation under section 60 or section 61 or section 62, but the person who committed the offence in connection therewith is not known or cannot be found, the court may inquire into and decide such liability, and may order confiscation accordingly: Provided that no order of confiscation of an article or thing shall be made until the expiry of one month from the date of seizure, or without hearing any person who may claim any right thereto and the evidence, if any, which he produces in respect of his claim: Provided further that if any such article or thing, other than a narcotic drug, psychotropic substance, 1[controlled substance,] the opium poppy, coca plant or cannabis plant is liable to speedy and natural decay, or if the court is of opinion that its sale would be for the benefit of its owner, it may at any time direct it to be sold; and the provisions of this sub-section shall, as nearly as may be practicable, apply to the net proceeds of the sale. 9. From the above it is clear that the Court shall decide whether a vehicle seized in connection with crime registered under the provisions of the NDPS Act is liable for confiscation or not only at the time of convicting, acquitting or discharging the accused. But there is 4 no mention that interim custody of a vehicle cannot be ordered. Further if the vehicle is kept idle it will render useless and there is every likelihood of the vehicle getting destroyed.

457. Procedure by police upon seizure of property. (1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property. (2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, 3 to appear before him and establish his claim within six months from the date of such proclamation. 

There is no dispute with regard to the petitioner’s ownership over the vehicle. It is clear that there is no bar under the NDPS Act on the Courts to order for interim custody of a vehicle which is seized in a crime registered for the offences under the said Act. Section 63 of the NDPS Act reads thus: “(1) In the trial of offences under this Act, whether the accused is convicted or acquitted or discharged, the court shall decide whether any article or thing seized under this Act is liable to confiscation under section 60 or section 61 or section 62 and, if it decides that the article is so liable, it may order confiscation accordingly. (2) Where any article or thing seized under this Act appears to be liable to confiscation under section 60 or section 61 or section 62, but the person who committed the offence in connection therewith is not known or cannot be found, the court may inquire into and decide such liability, and may order confiscation accordingly: Provided that no order of confiscation of an article or thing shall be made until the expiry of one month from the date of seizure, or without hearing any person who may claim any right thereto and the evidence, if any, which he produces in respect of his claim: Provided further that if any such article or thing, other than a narcotic drug, psychotropic substance, 1[controlled substance,] the opium poppy, coca plant or cannabis plant is liable to speedy and natural decay, or if the court is of opinion that its sale would be for the benefit of its owner, it may at any time direct it to be sold; and the provisions of this sub-section shall, as nearly as may be practicable, apply to the net proceeds of the sale. 9. From the above it is clear that the Court shall decide whether a vehicle seized in connection with crime registered under the provisions of the NDPS Act is liable for confiscation or not only at the time of convicting, acquitting or discharging the accused. But there is 4 no mention that interim custody of a vehicle cannot be ordered. Further if the vehicle is kept idle it will render useless and there is every likelihood of the vehicle getting destroyed. 

AP. HIGH COURT AMARAVATHI 

THE HON’BLE SMT JUSTICE LALITHA KANNEGANTI

CRIMINAL REVISION CASE No.504 of 2020

Kolluri Sunitha

-vs-

THE STATE OF ANDHRA PRADESH

ORDER:-

 This Criminal Revision Case is filed under Sections 397 and

401 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’)

seeking to set aside the order dated 14.09.2020 passed in

Crl.M.P.No.1 of 2020 in crime No.34 of 2020 passed by the learned

Special Court for Trial of Offences under the Narcotic Drugs and

Psychotropic Substances Act, 1985 –Cum-I Additional District and

Sessions Judge, Prakasam District, Ongole and consequently

release the vehicle i.e. Hyundai Red I20 car bearing registration

No.AP 27 BT 7013.

2. Heard Sri Marri Venkata Ramana, learned counsel for the

petitioner and learned Public Prosecutor appearing on behalf of

respondent No.1-State.

3. The learned counsel for the petitioner submits that the vehicle

was seized by the Police in connection with crime No.34m of 2020

registered for the offences punishable under Sections 354A, 354D,

506, 509, 366 of the Indian Penal Code, 1860 (for short ‘I.P.C.’ and

Section 20(B) and 8(c) of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (for short ‘NDPS Act’). Subsequent to the

seizure of the vehicle, the petitioner approached the Court below by

filing a petition under Section 457 Cr.P.C. seeking interim custody of

the subject vehicle. But the said petition was dismissed on the

ground that the petitioner is not third party and she is mother of

respondent No.2/accused in the crime. In the order impugned it was

also observed that without disclosing the said fact the petitioner has 

2

filed the petition as third party and the Court has also observed that

if once the vehicle is released on interim custody, the same will go

into the hands of the accused being her son against whom there is

accusation under NDPS Act. There is strong apprehension from the

Police that he would do similar offences by using the said vehicle.

4. Learned counsel for the petitioner also submits that in the

cause title itself it was shown that the petitioner and respondent

No.2/accused are wife and son of Ramanaiah @ Venkata Ramanaiah.

There is no intention on the part of the petitioner to suppress the

said fact. He also submits that if the vehicle is kept idle it will render

useless and there is every likelihood of the vehicle getting damaged.

5. Learned counsel for the petitioner also submits that even if a

vehicle is seized under NDPS Act for use of the vehicle in transporting

narcotic goods, the owner is entitled for interim custody of the vehicle

and this Court has granted interim custody of the vehicles in similar

cases. Hence, this petition may be allowed.

6. It is appropriate to extract Section 457 of Cr.P.C which reads

thus:

457. Procedure by police upon seizure of property.

(1) Whenever the seizure of property by any police officer is

reported to a Magistrate under the provisions of this Code, and

such property is not produced before a Criminal Court during an

inquiry or trial, the Magistrate may make such order as he thinks

fit respecting the disposal of such property or the delivery of such

property to the person entitled to the possession thereof, or if

such person cannot be ascertained, respecting the custody and

production of such property.

(2) If the person so entitled is known, the Magistrate may

order the property to be delivered to him on such conditions (if

any) as the Magistrate thinks fit and if such person is unknown,

the Magistrate may detain it and shall, in such case, issue a

proclamation specifying the articles of which such property

consists, and requiring any person who may have a claim thereto, 

3

to appear before him and establish his claim within six months

from the date of such proclamation.

7. As per Section 457 of Cr.P.C., if the person is known and when

there is no dispute about the ownership of the vehicle, the Magistrate

may order delivery of the property to him on such conditions as the

Magistrate thinks fit.

8. There is no dispute with regard to the petitioner’s ownership

over the vehicle. It is clear that there is no bar under the NDPS Act

on the Courts to order for interim custody of a vehicle which is seized

in a crime registered for the offences under the said Act. Section 63 of

the NDPS Act reads thus:

“(1) In the trial of offences under this Act, whether the accused is

convicted or acquitted or discharged, the court shall decide

whether any article or thing seized under this Act is liable to

confiscation under section 60 or section 61 or section 62 and, if it

decides that the article is so liable, it may order confiscation

accordingly.

(2) Where any article or thing seized under this Act appears to be

liable to confiscation under section 60 or section 61 or section 62,

but the person who committed the offence in connection

therewith is not known or cannot be found, the court may inquire

into and decide such liability, and may order confiscation

accordingly: Provided that no order of confiscation of an article or

thing shall be made until the expiry of one month from the date of

seizure, or without hearing any person who may claim any right

thereto and the evidence, if any, which he produces in respect of

his claim: Provided further that if any such article or thing, other

than a narcotic drug, psychotropic substance, 1[controlled

substance,] the opium poppy, coca plant or cannabis plant is

liable to speedy and natural decay, or if the court is of opinion

that its sale would be for the benefit of its owner, it may at any

time direct it to be sold; and the provisions of this sub-section

shall, as nearly as may be practicable, apply to the net proceeds

of the sale.

9. From the above it is clear that the Court shall decide whether a

vehicle seized in connection with crime registered under the

provisions of the NDPS Act is liable for confiscation or not only at the

time of convicting, acquitting or discharging the accused. But there is 

4

no mention that interim custody of a vehicle cannot be ordered.

Further if the vehicle is kept idle it will render useless and there is

every likelihood of the vehicle getting destroyed.

10. Taking into consideration the submissions made by the learned

counsel for the petitioner and in view of the settled law this Court

feels it appropriate to grant interim custody of the vehicle to the

petitioner by imposing certain conditions.

11. Accordingly the criminal revision case is allowed and the order

dated 14.09.2020 passed in Crl.M.P.No.1 of 2020 by the learned

Special Court Designated for Trial of Offences Under the Narcotic

Drugs and Psychotropic Substances Act, 1985 –Cum- I Additional

District and Sessions Judge, Prakasam District, Ongole, is set aside.

The vehicle i.e. Hyundai Red I20 car bearing registration No.AP27 BT

7013 is ordered to be given interim custody to the petitioner on

condition of her executing a bond for a sum of Rs.1,00,000/- (Rupees

one lakh only) with one surety for a likesum to the satisfaction of the

Special Court Designated for Trial of Offence Under the Narcotic

Drugs and Psychotropic Substances Act, 1985-cum-I Additional

District and Sessions Judge, Prakasam District, Ongole.

As a sequel, all the pending miscellaneous applications are

closed.

____________________________________

JUSTICE LALITHA KANNEGANTI

Date : 05.01.2021

IKN

 

5

THE HON’BLE SMT JUSTICE LALITHA KANNEGANTI

Allowed

CRIMINAL REVISION CASE No.504 of 2020

05.01.2021

IKN 

6 

seeking to enlarge the petitioner/Accused on bail in the event of his arrest in connection with Crime No.28 of 2021 on the file of Varikuntapadu Police Station, SPSR Nellore District, registered for the offences under Sections 417, 420, 465, 466, 468, 471, 473 r/w 120b of Indian Penal Code, 1860= As the offences registered against the petitioner are punishable with less than seven years imprisonment, this Court deems it fit to pass a direction to the Investigating Officer to follow the guidelines prescribed by the Hon’ble apex Court in Arnesh Kumar (supra) and the procedure prescribed in Section 41-A of Cr.P.C.

AP HIGH COURT 

THE HON’BLE SRI JUSTICE K. SURESH REDDY

CRIMINAL PETITION No.2928 OF 2021

SMT NADELLA RAMA DEVI

-VS-

THE STATE OF ANDHRA PRADESH

ORDER:

 This Criminal Petition is filed under section 438 of the Code of

Criminal Procedure, 1973 (for short ‘Cr.P.C.’) seeking to enlarge the

petitioner/Accused on bail in the event of his arrest in connection with

Crime No.28 of 2021 on the file of Varikuntapadu Police Station, SPSR

Nellore District, registered for the offences under Sections 417, 420, 465,

466, 468, 471, 473 r/w 120b of Indian Penal Code, 1860 (for short IPC).

2. Heard the counsel for the petitioner and the Additional Public

Prosecutor appearing for the 1st respondent / State.

3. Learned counsel for the petitioner submits that as the offences

registered against the petitioner are punishable with less than seven

years imprisonment, requested this Court directing the Investigating

Officer to follow the procedure prescribed under Section 41-A of Cr.P.C.,

and the guidelines prescribed by the Apex Court in Arnesh Kumar v.

State of Bihar1.

4. The learned Additional Public Prosecutor stated that he has no

objection for issuing such a direction.

5. As the offences registered against the petitioner are punishable

with less than seven years imprisonment, this Court deems it fit to pass

a direction to the Investigating Officer to follow the guidelines prescribed

by the Hon’ble apex Court in Arnesh Kumar (supra) and the procedure

prescribed in Section 41-A of Cr.P.C.

1

(2014) 8 SCC 273

2

6. In the result, the criminal petition is disposed of, directing the

Investigating Officer to follow the procedure prescribed in Section 41-A of

Cr.P.C., and the guidelines issued by the Hon’ble apex Court in Arnesh

Kumar (supra).

 As a sequel, the miscellaneous applications, if any pending, shall

stand closed.

_______________________

K. SURESH REDDY, J

20th May, 2021

sj 

3

11

THE HON’BLE SRI JUSTICE K. SURESH REDDY

CRIMINAL PETITION No.2928 OF 2021

Dated : 20.05.2021

sj 

Though the learned Senior counsel submits that this Court as well as the Sessions Court have got concurrent jurisdiction, this Court is not inclined to entertain this petition directly without moving the same before the trial Judge, where entire material including remand report will be available on his production. It is also to be noted here that the petitioner is still in police custody and he is not yet produced before appropriate Court for judicial remand. In that view of the matter, this Court is not inclined to entertain the present petition seeing bail and the same is liable to be dismissed.;Even assuming for the sake of argument, that an application seeking bail is maintainable at this stage, but the guidelines framed for hearing bail applications during Summer Vacation -2021 categorically states as under : Criminal Matters : i) Anticipatory bail matters ii) Bail applications, if bail is refused by Magistrates and Sessions Judges/ Additional Sessions Judges. 3 iii) Criminal Appeals and Criminal Revision Cases in which the accused are convicted. 8. As per the above guidelines, it is very much clear that only against the orders passed dismissing the bail application by the trial Court, then only, bail application can be moved before this Court.;

AP HIGH COURT

THE HON’BLE SRI JUSTICE K. SURESH REDDY

CRIMINAL PETITION No.2998 OF 2021

k Raghurama krishna Raju

-VS-

State of ap

ORDER:

This petition is filed under Sections 437 and 439 of the

Code of Criminal Procedure, 1973 to enlarge the

petitioner/Accused on bail in Crime No.12 of 2021 of CID Police

Station, Mangalagiri, Guntur, Andhra Pradesh, registered for the

offences punishable under Sections 124-A, 153(A), 505 r/w 120-

B of Indian Penal Code, 1860 (for short ‘IPC’).

2. Brief facts of the case are that the petitioner is Member of

Parliament having been elected to Lok Sabha from Narasapuram

Parliamentary constituency in Andhra Pradesh. While so, on

14.5.2021 at about 5.00 pm., police arrested the petitioner at his

residence at Hyderabad in the above crime, as he has been

indulging in hate speeches against certain communities and

promoting disaffection against the Government, which will cause

loss of faith in the Government and also cause disturbances.

3. This petition was moved by way of House Motion on

14.5.2021 and the same was allotted to this Court at about 10.30

pm., As there is no technical staff to operate Blue Jeans App and

there is no Court Master and Court Officer because of Lock down

imposed in the State of Andhra Pradesh, it was heard through

telephone. With the consent of both the learned counsels, the

present petition is taken up today for hearing.

2

4. Heard learned Senior counsel Sri B.Adinarayana Rao for

the petitioner as well as the learned Additional Advocate General

for the respondents.

5. As the petitioner has not moved any application seeking bail

before the Sessions Judge, this Court has taken objection for the

same. Learned Senior counsel submitted that there is concurrent

jurisdiction in entertaining bail applications by the High Court as

well as the Sessions Court. In support of his contentions, learned

Senior Counsel has placed reliance on the judgments reported in

2014 (16) SCC 623 and also 2018 SCC On-line Hyderabad

224.

6. On the other hand, learned Additional Advocate General

has opposed the petition and stated that the present petition filed

under Sections 437 and 439 Cr.P.C., is not at all maintainable as

the petitioner was not yet produced before the concerned

Magistrate. In support of his contentions, learned Additional

Advocate General has placed reliance on the judgments reported

in 2019 (2) ALT (Crl.) 209 (DB) and 2004 (7) SCC 558.

7. Even assuming for the sake of argument, that an

application seeking bail is maintainable at this stage, but the

guidelines framed for hearing bail applications during Summer

Vacation -2021 categorically states as under :

Criminal Matters :

i) Anticipatory bail matters

ii) Bail applications, if bail is refused by Magistrates and

Sessions Judges/ Additional Sessions Judges.

3

iii) Criminal Appeals and Criminal Revision Cases in

which the accused are convicted.

8. As per the above guidelines, it is very much clear that only

against the orders passed dismissing the bail application by the

trial Court, then only, bail application can be moved before this

Court.

9. Though the learned Senior counsel submits that this Court

as well as the Sessions Court have got concurrent jurisdiction,

this Court is not inclined to entertain this petition directly without

moving the same before the trial Judge, where entire material

including remand report will be available on his production. It is

also to be noted here that the petitioner is still in police custody

and he is not yet produced before appropriate Court for judicial

remand.

10. In that view of the matter, this Court is not inclined to

entertain the present petition seeing bail and the same is liable to

be dismissed. However, the petitioner can approach the

concerned trial Judge and seek necessary reliefs.

With the above observation, the Criminal Petition is

dismissed.

As a sequel, the miscellaneous applications, if any, shall

stand closed.

4

_______________________

K. SURESH REDDY, J

Date : 15.5.2021.

Note: Furnish C.C. today

B/o

RPD

5

THE HON’BLE SRI JUSTICE K. SURESH REDDY

CRIMINAL PETITION No.2998 of 2021

Date : 15.5.2021

Note: Furnish C.C. today

B/o

RPD

ORDER 39 RULE 1 &2 - SUIT FOR CANCELLATION OF REG. GIFT DEED AND ALSO FOR PARTITION - We feel that there is nothing wrong in trial Court looking into the evidence of P.W.1 and deciding the issue without reference to the documents, more particularly, Aadhar card, gas connection, correspondence from Margadarsi finance, renewal of driving licence etc., belonging to the appellant – plaintiff. Probably all these documents were marked only to show that the appellant - plaintiff was residing at the said place. Nonconsideration of these documents, in our view, may not go to the root of the matter, while deciding granting of injunction, in view of the evidence of P.W.1, who is the plaintiff himself. 15. In paragraph 13 of the plaint it has been stated that, the appellant – plaintiff is in possession of the plaint schedule property along with his brother 2nd respondent – 2nd defendant, since the same is a family property. But, in the evidence of P.W.1, it has been elicited that, in the month of November, 2019, he came from U.S.A. He stayed in Gowtham Lodge, Tenali. His own evidence shows that his father is residing in the ground floor portion of the suit property and he also admits that his father gave a report against him in II Town Police Station, Tenali, alleging that the appellant – plaintiff is harassing him. From the above, prima facie, it appears that the plea taken that he is in possession of the property may not be correct. Apart from that it is also elicited in the crossexamination of P.W.1 that, in the first floor of the property, one tenant is residing and the tenant is paying rent to his sister through online banking. The evidence also shows that his sister 9 got mutated her name in municipal records in pursuance of Ex.A1 gift deed. Apart from that, she got mutated her name in electricity service records as well. Therefore, prima facie, the evidence of P.W.1 itself shows that he was not in possession of the property. Even as per recitals of gift deed – Ex.A1, the property stands in the name of the 1st respondent – 1st defendant and the possession of the suit schedule property was delivered to her by Vijaya Lakshmi. 16. Apart from all these things it is also to be noted that, appellant – plaintiff also sought partition of the property and allotment of share to him and other respondents – defendants. As per the averments in the plaint, they are in the joint possession of the property. Such being the position, the question of granting temporary injunction against co-owners would not arise.

AP HIGH COURT

AP HIGH COURT

THE HON’BLE SRI JUSTICE C.PRAVEEN KUMAR

AND

THE HON’BLE SMT. JUSTICE KONGARA VIJAYA LAKSHMI

Civil Miscellaneous Appeal No.157 of 2020

Senithangappa Srinivasa Rao

-VS-

Vemulapalli Roja Kishore

JUDGMENT : (per the Hon’ble Sri Justice C.Praveen Kumar)

1. Assailing the order dated 13.2.2020 passed in I.A.No.427

of 2017 in O.S.No.24 of 2017 on the file of the

XI Additional District and Sessions Judge, Tenali, the present

Civil Miscellaneous Appeal is filed under Order 43 Rule 1 C.P.C.

2. The facts, which lead to filing of the appeal, are as under :

 The appellant herein who is the plaintiff in the suit filed

the suit against respondents – defendants for cancellation of a

registered sale deed said to have been executed by one Vijaya

Lakshmi, who is the mother of both parties. According to the

appellant – plaintiff, his parents gave Rs.50,00,000/-, gold and

silver jewellery worth Rs.70,00,000/- on the occasion of

marriage of the 1st respondent – 1st defendant in the year 1993

towards Sthridhana. According to him, the said Vijaya Lakshmi,

who is also mother of the appellant, refused to give ‘A’ schedule

property to the 1st respondent – 1st defendant. It is stated that

the 1st respondent – 1st defendant and her daughter, who is a

Doctor, provided treatment to their mother at Guntur, as she fell

sick due to cancer. The daughter of the 1st respondent – 1st

defendant is said to have caused mental agony, physical

sufferance and mental loss to Vijaya Lakshmi. On account of

negligence, misconduct etc., she died on 2.3.2017. It is pleaded 

 2

that the 1st respondent – 1st defendant, her husband and

daughter kept quiet till their mother became unsound and

unable to acknowledge the worldly affairs and thereafter, got

executed the alleged gift deed in their favour on 22.2.2017.

Hence, he pleaded that, alleged gift deed is not valid, illegal and

unenforceable and accordingly, the same is liable to be

cancelled. It is further stated that, the appellant – plaintiff is

entitled to 1/3rd share in the plaint ‘A’ schedule property by way

of partition and that they are in possession and enjoyment of the

same. It is urged that the 1st respondent – 1st defendant and her

men are making every effort to dispossess the appellant –

plaintiff from the plaint schedule property and are making

efforts to alienate the said property to third parties. Under those

circumstances, he sought for a temporary injunction restraining

the 1st respondent – 1st defendant and her men from interfering

with peaceful possession and enjoyment of the rights of the

appellant – plaintiff in plaint ‘A’ schedule property.

3. The 2nd respondent – 2nd defendant remained ex parte,

while the 1st respondent – 1st defendant filed counter denying

the averments in the petition. It has been stated that the

1st respondent – 1st defendant took every care of her mother and

got her treated in best of the hospitals in Vijayawada and

Guntur. In fact, it is stated that, she also took her mother to

Hyderabad and got her treated in KIMS in the month of July,

2016 and an operation was performed by Dr.Jagadishwar Goud.

As the appellant – plaintiff was in U.S.A. at that time, he may 

 3

not be knowing these facts. It is also stated that, after the

operation, Dr.Jagadishwar Goud advised chemotherapy

treatment to Vijaya Lakshmi, who is the mother of the appellant

– plaintiff and respondents – defendants. After completing check

up, she was brought back to Guntur, where she took treatment

under the supervision of one Dr.Krishna Reddy at Manipal

Hospital, Vijayawada. The serious condition of the mother was

informed to the appellant – plaintiff and the 2nd respondent – 2nd

defendant over phone on 16.1.2017 itself, but, there was no

response. The averments in the counter also show that the suit

property was gifted to the 1st respondent – 1st defendant by

executing a registered gift deed and the allegation that the same

came to be registered when she was in unsound mind is

absolutely false and incorrect. Counter also denies the appellant

– plaintiff being in possession and enjoyment of the suit

property.

4. In support of the petition, Exs.A1 to A8 were marked, while

on behalf of respondents – defendants, Exs.B1 and B2 were

marked. After considering the rival submissions made and the

judgments cited, the trial Court dismissed the said I.A.

Challenging the same, the present Civil Miscellaneous Appeal

came to be filed.

5. Sri M.Chalapathi Rao, learned counsel for the appellant,

mainly submits that, the order under challenge is liable to be set

aside, for the reason that the trial Court did not refer to

documents filed by the appellant, which are placed as Exs.A1 to 

 4

A8. According to him, when the condition of Vijaya Lakshmi

was serious on 16.1.2017 itself, which is evident from the

counter, the question of she executing a registered gift deed on

22.2.2017 is highly improbable. Having regard to the above, he

pleads that, the order under challenge be set aside and the

matter be remanded for fresh consideration.

6. Sri N.Sriram Murthy, learned counsel for the

1st respondent – 1st defendant, would contend that, when suit

properties are in joint possession, as averred in the plaint and

as contended by the learned counsel for the appellant, the

appellant is not entitled for an equitable relief of temporary

injunction against co-owners. He would further submit that,

suit is of the year 2017 and as such the question of granting

injunction after three years would not arise, more so, when the

trial has commenced and the evidence of P.W.1 is complete. In

any event, he would plead that, the requirements for granting

temporary injunction, in a case of this nature, are not fulfilled.

He took us through the contents of the gift deed, evidence of

P.W.1 and the judgments in support of his plea to show that, the

order of the trial court requires no interference.

7. The point that arises for consideration is, “Whether the

appellant – plaintiff is entitled for temporary injunction?”

8. It is to be noted here that, suit is filed for cancellation of a

registered gift deed and also for partition. The fact that the

appellant and respondents are siblings is not in dispute. It is 

 5

also not in dispute that the said Vijaya Lakshmi died on

2.3.2017. The plea in substance of the appellant is, his mother

Vijaya Lakshmi never executed the gift deed, dated 22.2.2017, in

favour of the 1st respondent – 1st defendant, since her condition

was very serious as on 16.1.2017 itself, which fact was informed

to him over telephone and the same is evident from the counter.

9. But, it is to be noted that, though her condition was not

good in the month of January, 2017, she survived for 40 days

thereafter. The averments in the counter show that on

16.1.2017, the 1st respondent – 1st defendant, took her mother

to Dr.Janardhani and N.Srinivasa Rao, who after verifying the

scanning report found that her condition is very serious and to

avoid urinary problem, advised insertion of stunt. Hence, she

was taken to an Urologist by name Visweswara Rao, who

arranged a stunt and thereafter, she was taken to her house. By

this, prima facie, it does not mean that she was not in a position

to move at all on 16.1.2017. Therefore, at this stage, it may not

be proper for us to give any finding as to whether she was in a

position to execute registered gift deed on 22.2.2017. It is for the

civil court to decide the said issue at the time of trial. But, as

things stand today, there is a registered gift deed executed on

22.2.2017 in favour of the 1st respondent – 1st defendant.

10. It is no doubt true that, there is no specific reference with

regard to Exs.A2 to A8 in the order, but, there is a reference to

Ex.A1, which is C.C. of the registered gift deed, dated 22.2.2017.

But, since the trial has commenced and P.W.1 was examined, 

 6

the trial Court looked into the evidence of P.W.1 and decided the

I.A.

11. Learned counsel for the appellant relied upon the

judgment of the Apex Court in ‘Seema Arshad Zaheer vs.

Municipal Corporation of Greater Mumbai1’, where in the

Apex Court held as follows:

“Where the lower court acts arbitrarily, capriciously or

perversely in the exercise of its discretion, the appellate court

will interfere. Exercise of discretion by granting a temporary

injunction when there is "no material", or refusing to grant a

temporary injunction by ignoring the relevant documents

produced. When we refer to acting on "no material" (similar to

"no evidence"), we refer not only to cases where there is total

dearth of material, taken as a whole, is not reasonably capable

of supporting the exercise of discretion. In this case, there was

"no material" to make out a prima facie case and therefore, the

High Court in its appellate jurisdiction, was justified in

interfering in the matter and vacating the temporary injunction

granted by the trial court.”

12. In the above judgment the term used is ‘no material’ for

exercise of its discretion for granting a temporary injunction.

The Hon’ble Supreme Court also refers to cases, where there is

total dearth of material, but also to cases where there is no

relevant material or where the material, taken as a whole, is not

reasonably capable of supporting the exercise of discretion.

13. In the present case, the appellant relied upon eight

documents i.e., Exs.A.1 to A.8. Ex.A.1 is the certified copy of

registered gift deed dated 22.02.2017; Ex.A.2 is the certified

copy of gift deed dated 18.06.2010; Ex.A.3 is the certified copy of

1

 (2006) 5 SCC 282 

 7

cancellation of gift deed dated 16.03.2012; Ex.A.4 is the aadhar

card of plaintiff; Ex.A.5 is the gas connection obtained by the

plaintiff dated 28.04.2000; Ex.A.6 is the letter from Margadarsi

Finance Corporation to the plaintiff dated 12.09.2017; Ex.A.7 is

the driving licence of the plaintiff dated 18.10.1986 and Ex.A.8

is the renewal driving licence of the plaintiff dated 18.10.1986.

Exs.A.1 to A.3 are only copies of the gift deeds. Ex.A.4 is the

aadhar card of the plaintiff; Exs.A.7 and A.8 are the copies of

driving licences of the year 1986; Ex.A.5 is the gas connection is

of the year 2000 and Ex.A.6, is the letter of Margadarsi Finance

Corporation is of the year 2017. All these documents do not

prima facie establish possession of the petitioner with the

subject property. Even according to the plaint filed by the

appellant, the appellant is an NRI, working as a Software

Engineer in US for the last 16 years. He further averred that he

used to visit India in alternative years to take care of his

parents. As per the averments of the plaint, after admitting her

mother in KIMS Hospital, in March, 2016, got her treated and

then went back to USA. According to the plaint averments,

plaintiff came to India again on 02.03.2017 i.e., four days prior

to the death of his mother which was on 06.03.2017. In view of

the said averments in the plaint, the documents relied upon by

the plaintiff are not relevant material. Even if they are taken into

consideration, they are not supporting the case of the appellant

and hence, the judgment relied upon by the appellant does not

come to the rescue of the appellant. 

 8

14. We feel that there is nothing wrong in trial Court looking

into the evidence of P.W.1 and deciding the issue without

reference to the documents, more particularly, Aadhar card, gas

connection, correspondence from Margadarsi finance, renewal of

driving licence etc., belonging to the appellant – plaintiff.

Probably all these documents were marked only to show that the

appellant - plaintiff was residing at the said place. Nonconsideration of these documents, in our view, may not go to the

root of the matter, while deciding granting of injunction, in view

of the evidence of P.W.1, who is the plaintiff himself.

15. In paragraph 13 of the plaint it has been stated that, the

appellant – plaintiff is in possession of the plaint schedule

property along with his brother 2nd respondent –

2nd defendant, since the same is a family property. But, in the

evidence of P.W.1, it has been elicited that, in the month of

November, 2019, he came from U.S.A. He stayed in Gowtham

Lodge, Tenali. His own evidence shows that his father is

residing in the ground floor portion of the suit property and he

also admits that his father gave a report against him in II Town

Police Station, Tenali, alleging that the appellant – plaintiff is

harassing him. From the above, prima facie, it appears that the

plea taken that he is in possession of the property may not be

correct. Apart from that it is also elicited in the crossexamination of P.W.1 that, in the first floor of the property, one

tenant is residing and the tenant is paying rent to his sister

through online banking. The evidence also shows that his sister 

 9

got mutated her name in municipal records in pursuance of

Ex.A1 gift deed. Apart from that, she got mutated her name in

electricity service records as well. Therefore, prima facie, the

evidence of P.W.1 itself shows that he was not in possession of

the property. Even as per recitals of gift deed – Ex.A1, the

property stands in the name of the 1st respondent – 1st

defendant and the possession of the suit schedule property was

delivered to her by Vijaya Lakshmi.

16. Apart from all these things it is also to be noted that,

appellant – plaintiff also sought partition of the property and

allotment of share to him and other respondents – defendants.

As per the averments in the plaint, they are in the joint

possession of the property. Such being the position, the

question of granting temporary injunction against co-owners

would not arise.

17. The issue is no more res integra in view of the judgment of

this Court in Ranukanta Mullaiah v. Sircilla Rajamma and

Anr.2 wherein this Court held as under:

 “11. It is not in dispute that the father of the appellant and

father of the 1st respondent are the sons of Rajaram, and both of

them have succeeded to the entire suit schedule property, except

for one item, and almost an equivalent extent of property held by

the appellant herein. For all practical purposes, the appellant

wanted to exclude the succession of the respondents herein, to

the estate of late Durgaiah. For that, he has taken shelter under

the extension of the 1937 Act, to the Hyderabad State, and the

allegation that Durgaiah died before the said date. By its very

nature, a suit for injunction simplicitor does not permit of an

2

 2006 (6) ALD 113 

 10

adjudication of such important questions, involving the

determination of certain jurisdictional facts, interpretation of the

provisions and expression of view upon the operation of the

provisions also. Having regard to the relationship of the parties, a

presumption needs to be drawn that both of them are co-owners,

if not coparceners, vis-a-vis the suit schedule property, even

assuming that the plea of the 1st respondent as to prior partition

has not been proved. That being the case, the 1st respondent

answered the description of a co-owner, and there was no basis,

on which the relief of perpetual injunction could have been

granted in favour of the appellant.”

18. The Hon’ble Madhya Pradesh High Court in Roop Chand

v. Indradevi and Ors. 3 held as under :

 “16. The result is that, the trial Court simply assumed merely on

the basis of the separate living of the co-sharers that there was a

family settlement between the parties, without any evidence. On

the other hand, the mortgage-deed on record clearly shows that

the house was never partitioned nor there was any family

settlement to give independent portions to the co-sharers for their

independent business and dealing with. Mere separate living did

not raise any presumption for family settlement. As earlier

pointed out, the mortgage-deed is admitted on record and para 8

of the mortgage-deed clearly demolishes the theory of any family

settlement. As such, it is established on record that the house

was never partitioned between the co-sharers. Also there was no

family settlement for independent dealing with the portions given

to the four brothers for living, and therefore, the suit for partition

was maintainable and decree for partition ought to have been

passed by the trial Court. The injunction granted by the trial

Court is also uncalled for in view of the fact that no injunction

could be granted in favour of one of the co-sharers against the

other, unless there was a finding that the share of one of the cosharers was either partitioned or made separate by family

arrangement. In this case, there is no proof for either partition or

family settlement, and therefore, no injunction could be granted

to any of the co-sharers against others.”

3

 AIR 1997 MP 200 

 11

19. In Jail Singh & Ors. v. Gurmej Singh 4 the Apex Court

held as under :

“7. The principles relating to the inter-se rights and liabilities of

co- sharers are as follows:

(l) A co-owner has an interest in the whole property and also

in every parcel of it.

(2) Possession of joint property by one co-owner is in the eye

of law, possession of all even if all but one are actually out of

possession.

(3) A mere occupation of a larger portion or even of an entire

joint property does not necessarily amount to ouster as the

possession of one is deemed to be on behalf of all.

(4) The above rule admits of an exception when there is

ouster of a co-owner by another. But in order to negative the

presumption of joint possession on behalf of all, on the

ground of ouster, the possession of a co-owner must not

only be exclusive but also hostile to the knowledge of the

other as, when a co-owner openly asserts his own title and

denies, that of the other.

(5) Passage of time does not extinguish the right of the coowner who has been out of possession of the joint property

except in the event of ouster or abandonment.

(6) Every co-owner has a right to use the joint property in a

husband like manner not inconsistent with similar rights of

other co-owners.

(7) Where a co-owner is in possession of separate parcels

under an arrangement consented by the other co-owners, it

is not open to any body to disturb the arrangement without

the consent of others except by filing a suit for partition.

8. It is thus evident that when a co-sharer is in exclusive

possession of some portion of the joint holding he is in possession

thereof as a co-sharer and is entitled to continue in its possession

if it is not more than his share till the joint holding is partitioned.

Vendor cannot sell any property with better rights than himself.

As a necessary corollary when a co-sharer sells his share in the

joint holding or any portion thereof and puts the vendee into

possession of the land in his possession what he transfers is his

4

 2009 (1) SCJ 714 

 12

right as a co-sharer in the said land and the right to remain in its

exclusive possession till the joint holding is partitioned amongst

all co-sharers.”

20. In view of the judgments referred to above and having

regard to answers elicited in the evidence of P.W.1, and the

averments in the plaint, prima facie, this Court is of the opinion

that, the appellant – plaintiff is not in possession of the property,

and as there cannot be an injunction against co-owners,

the question of granting an injunction as sought for would not

arise.

21. Accordingly, the Civil Miscellaneous Appeal is dismissed.

Since the suit is of the year 2017, and as the examination of

P.W.1 is over, the trial Court may take steps for disposal of the

suit as early as possible, uninfluenced by the observations,

made if any, in the order. No order as to costs.

_______________________________

JUSTICE C.PRAVEEN KUMAR

________________________________________

JUSTICE KONGARA VIJAYA LAKSHMI

Date : 07.10.2020

skmr 

ORDER 39 RULE 1 &2 - SPECIFIC PERFROMANCE SUIT - NOT TO DEMOLISH OR TO CONSTRUCT ANY BUILDING PENDING SUIT - admittedly by the time the application was filed, substantial portion of the construction was completed. Even assuming that the entire construction is completed, it will not cause any loss or prejudice to the appellant. As rightly observed by the Court below that in the event the appellant succeeds in the suit, the respondents have to execute a sale deed along with the structures. Moreover, when the respondents have given an undertaking in the counter that they are not going to alienate the schedule property to any third parties and they have no intention to alienate the same, the apprehension of the appellant is absolutely baseless. Therefore, there are no grounds to interfere with the well considered order passed by the Court below.

AP HIGHCOURT

THE HON’BLE SMT JUSTICE LALITHA KANNEGANTI

CIVIL MISCELLANEOUS APPEAL No.168 of 2020

Thumati Venkata Suresh Babu

-VS-

Kavuri Madhava Rao,

ORDER:-

 Challenging the order dated 16.07.2020 passed in I.A.No.146

of 2020 in O.S.No.31 of 2018 on the file of the Court of X

Additional District & Special Sessions Judge, Krishna at

Machilipatnam, this appeal has been filed by the appellant /

plaintiff.

2. The appellant, who is the plaintiff has filed the suit in

O.S.No.31 of 2018 for specific performance of agreement of sale

dated 05.07.2011.

3. The case of the appellant / plaintiff is that late Kavuri

Venkateswara Rao for the purpose of family needs offered to sell

the suit schedule property to the plaintiff for a sum of Rs.20 lakhs

and the plaintiff paid an amount of Rs.12 lakhs as advance on the

same day itself and the balance amount has to be paid on or before

05.07.2013. On 03.07.2013 the petitioner has paid an amount of

Rs.6 lakhs, out of Rs.8 lakhs. Later, the father of defendants died

on 17.03.2014. Subsequently, when the defendants are evading to

receive the balance of sale consideration, the plaintiff filed the suit.

4. During pendency of the suit, I.A.No.146 of 2020 is filed

seeking temporary injunction restraining the 1st respondent from

demolishing any part of the plaint schedule building or raising any

new construction in the schedule property pending disposal of the

suit. The Court below after hearing both parties, dismissed the

application on the ground that admittedly as on the date of filing of

the petition substantial portion of the construction is completed, 

2

without expressing any merits of the rival parties in the suit,

considering the conduct of the petitioner in approaching the Court

almost five years from the date of endorsement and seven years

from the date of agreement of sale, there is no balance of

convenience in favour of the petitioner. The Court below has also

observed that if the 1st respondent continues to make construction,

in the event of succeeding in the suit, the petitioner is entitled for a

registered sale deed in respect of suit schedule property with

possession including any constructions which are made pending

disposal of the suit.

5. Learned counsel for the appellant submits that if the

respondents are permitted to raise the construction, it would cause

irreparable loss to the appellant and there is every possibility of

alienating and creating third party interest. Further, it is stated

that the Court below has failed to appreciate that there is prima

facie case and balance of convenience in favour of the appellant.

6. Learned counsel for the 1st respondent would submit that

the agreement of sale is of the year 2011 and in fact by the time of

filing the application substantial portion of the construction is

completed. He submit that it is specifically averred in the counter

filed in I.A. before the Court below that the respondents never

made any attempt to alienate the plaint schedule property pending

disposal of the suit and further they undertook that they will not

alienate the schedule property or enter into any agreement with

third parties in future till the disposal of the suit. Learned counsel

for the 1st respondent would submit that the construction is made

after obtaining necessary permission from the Municipality. 

3

7. Having heard the learned counsel for the appellant and

learned counsel for the 1st respondent, admittedly by the time the

application was filed, substantial portion of the construction was

completed. Even assuming that the entire construction is

completed, it will not cause any loss or prejudice to the appellant.

As rightly observed by the Court below that in the event the

appellant succeeds in the suit, the respondents have to execute a

sale deed along with the structures. Moreover, when the

respondents have given an undertaking in the counter that they

are not going to alienate the schedule property to any third parties

and they have no intention to alienate the same, the apprehension

of the appellant is absolutely baseless. Therefore, there are no

grounds to interfere with the well considered order passed by the

Court below.

8. In the result, the Civil Miscellaneous Appeal is dismissed.

No order as to costs.

 As a sequel, pending miscellaneous petitions, if any, shall

stand closed.

___________________________________

JUSTICE LALITHA KANNEGANTI

21st October, 2020

PVD

 

4

THE HON’BLE SMT JUSTICE LALITHA KANNEGANTI

CIVIL MISCELLANEOUS APPEAL No.168 of 2020

21st October, 2020

PVD 

0RDER 39 RULE 1 & 2 - PARTITION SUIT - NOT TO ALIENATE PENDING SUIT = Defendants 1, 4 and 5 who are the appellants herein filed counter, wherein they stated that pursuant to the settlement deed dated 12.09.1994, they executed a number of 6 documents and entered into various transactions. It is not in dispute that the appellant herein did not get the settlement deed dated 12.09.1994 marked. In fact, all the documents, on which the appellants herein sought to rely upon, are the documents emanated on the basis of the alleged settlement deed dated 12.09.1994. In fact, the 1st respondent herein is strongly disputing the genuineness of the said settlement deed. The learned District Judge, only after taking into consideration all the contentions advanced by both the parties and taking into consideration the non-marking of the settlement deed dated 12.09.1994 and in order to avoid further complications in the matter, granted the order of injunction in favour of the 1st respondent herein. It is a settled proposition of law that the relief of injunction is a discretionary and equitable relief. A perusal of the order passed by the trial Court shows that the learned I Additional District Judge has assigned cogent and convincing reasons in the impugned order. 9. Having regard to the apprehension expressed by the learned senior counsel, Sri P.Veera Reddy, that the 1st respondent-plaintiff is taking steps to get the revenue records mutated taking advantage of the injunction orders, this Court is inclined to modify the injunction order as an order of status quo in all respects with regard to the subject property.

AP HIGH COURT

THE HON’BLE SRI JUSTICE A.V.SESHA SAI

AND

THE HON’BLE MS. JUSTICE J.UMA DEVI

CIVIL MISCELLANEOUS APPEAL No.235 OF 2020

 Shamshunnisa Begum

-VS-

Khamrunnisa Begum,

JUDGMENT: (per AVSS,J)

Defendants 1, 4 and 5 in O.S. No.20 of 2019 on the file of

the Court of I Additional District Judge, Kurnool, are the

appellants in the present Civil Miscellaneous Appeal, preferred

under Order XLIII Rule 1 of the Code of Civil Procedure, 1908

(C.P.C.). This appeal challenges the order dated 03.11.2020

passed by the said Court in I.A. No.166 of 2019 in O.S. No.20 of

2019. The 1st respondent herein instituted the said suit against

the appellants and respondents 2 and 3 herein for partition of

the plaint schedule property and for allotment of 1/8th share to

her and for mesne profits. Along with the suit, the 1st

respondent herein filed I.A. No.166 of 2019 under the provisions

of Order XXXIX Rules 1 and 2 C.P.C., praying the trial Court to

grant ad interim injunction to restrain the defendants or

anybody, claiming through them from creating third party

interest, like sale, mortgage, gift, relinquishment and such other

transactions in respect of petition schedule property.

Respondents 1, 4 and 5 in the interlocutory application, who are

the appellants herein resisted the said application by filing a

counter. The learned I Additional District Judge, Kurnool, by 

 2

way of an order dated 03.11.2020, allowed the injunction

application, granting ad interim injunction, restraining the

defendants from alienating the petition schedule property

pending disposal of the suit. This appeal calls in question the

said order passed by the learned I Additional District Judge,

granting ad interim injunction in favour of the 1st respondent

herein.

 2. Heard Sri P.Veera Reddy, learned senior counsel

representing Sri M.Chinnappa Reddy, learned counsel for the

appellants and Sri G.Sravan Kumar, learned counsel for the 1st

respondent, apart from perusing the material available on

record.

 3. Learned senior counsel maintains that the questioned

order is highly erroneous, contrary to law and opposed to the

very spirit and object of the provisions of Order XXXIX Rules 1

and 2 C.P.C. It is further contended that in the absence of

necessary ingredients of Order XXXIX Rules 1 and 2 C.P.C., the

leaned I Additional District Judge grossly erred in granting

equitable relief of injunction. It is further submitted that in view

of the family arrangement dated 11.09.1994 entered into among

the family members, the very suit instituted by the 1st

respondent herein is not maintainable. It is further contended

by the learned counsel that though the respondents-defendants 

 3

produced voluminous evidence, in support of their possession

and the transactions entered into subsequent to the family

settlement, the learned I Additional District Judge failed to take

the same into consideration. It is further contended that the

main suit is barred by limitation and the interest of the 1st

respondent, if any, is well protected by Section 52 of the

Transfer of Property Act, 1882. Learned senior counsel further

submits that taking advantage of the injunction granted by the

learned trial Court, the 1st respondent-plaintiff is actively

contemplating to approach the revenue authorities to get the

entries changed in the revenue records and if the same is

permitted, the appellants herein and their successors will have

to suffer irreparable loss and hardship. It is also submitted by

the learned senior counsel that for having slept over the matter

from 1994, the 1st respondent herein instituted the suit in the

year 2019 and there are no bona fides on the part of the

plaintiff.

 4. On the contrary, it is contended by Sri G.Sravan

Kumar, learned counsel for the 1st respondent that there is

absolutely no infirmity nor there exists any error in the order

passed by the learned District Judge and in the absence of the

same, the discretionary relief granted by the learned Judge is

not amenable for any interference under Order XLIII Rule 1 

 4

C.P.C. It is further contended by the learned counsel that since

all the issues raised by the appellants herein were thoroughly

answered by the learned District Judge in the impugned order,

the present appeal is liable to be dismissed. It is further

submitted by the learned counsel that in order to avoid

multiplicity of litigation, learned District Judge granted

discretionary relief of injunction, as such, the same does not

warrant any interference of this Court.

 5. In the above background, now the issue that falls for

consideration of this Court in the present Civil Miscellaneous

Appeal is “Whether the order passed by the learned District

Judge is sustainable and tenable and whether the same

warrants any interference of this Court?”

 6. Appellants and the respondents herein are the

children of late Sri Mohammad Ghouse and late Smt. S.Ghousia

Bee of Kurnool town, appellant No.1 and respondents 1 to 3 are

their daughters and appellants 2 and 3 are the sons of Sri

Mohammad Ghouse and Smt. S.Ghousia Bee.

 7. The information available on record discloses, in clear

and vivid terms, that there is absolutely no controversy with

regard to the reality that Smt. Ghousia Bee owned the subject

property. Smt. Ghousia Bee died intestate on 26.01.1990, 

 5

leaving behind her husband and the parties to the present

litigation. Sri Mohammad Ghouse also passed away on

06.06.1996. According to the learned counsel for the 1st

respondent-plaintiff, appellants 2 and 3 used to apportion total

income derived from all the properties to all the shares including

the plaintiff upto the end of 2017 and they dodged to give her

share of income at the end of 2018 and when she insisted for a

share in the income, the defendants 4 and 5 who are the

appellants 2 and 3 herein postponed the same on some pretext

or the other. The plaintiff also pleaded that in the last week of

March, 2019, appellants 2 and 3 herein approached her for her

signature on some papers to apply for family members certificate

in favour of their mother to sell the property and for such course

of action, the plaintiff refused and demanded her 1/8th share in

the property. It is her further case that since the appellants 2

and 3 refused to partition the property, she instituted the

instant suit. As stated supra, along with the main suit, the 1st

respondent herein filed the instant application under Order

XXXIX Rules 1 and 2 C.P.C. to restrain the defendants from

alienating the properties.

 8. Defendants 1, 4 and 5 who are the appellants herein

filed counter, wherein they stated that pursuant to the

settlement deed dated 12.09.1994, they executed a number of 

 6

documents and entered into various transactions. It is not in

dispute that the appellant herein did not get the settlement deed

dated 12.09.1994 marked. In fact, all the documents, on which

the appellants herein sought to rely upon, are the documents

emanated on the basis of the alleged settlement deed dated

12.09.1994. In fact, the 1st respondent herein is strongly

disputing the genuineness of the said settlement deed. The

learned District Judge, only after taking into consideration all

the contentions advanced by both the parties and taking into

consideration the non-marking of the settlement deed dated

12.09.1994 and in order to avoid further complications in the

matter, granted the order of injunction in favour of the 1st

respondent herein. It is a settled proposition of law that the

relief of injunction is a discretionary and equitable relief. A

perusal of the order passed by the trial Court shows that the

learned I Additional District Judge has assigned cogent and

convincing reasons in the impugned order.

 9. Having regard to the apprehension expressed by the

learned senior counsel, Sri P.Veera Reddy, that the 1st

respondent-plaintiff is taking steps to get the revenue records

mutated taking advantage of the injunction orders, this Court is

inclined to modify the injunction order as an order of status quo

in all respects with regard to the subject property. It is also 

 7

made clear that the Original Suit shall be disposed of without

being influenced by any of the observations made by the learned

I Additional District Judge in the impugned order or by this

Court in the present order.

 10. With the above modification, this appeal is disposed

of. There shall no order as to costs of this appeal.

Miscellaneous Petitions pending, if any, in this case shall

stand closed.

 __________________________

 JUSTICE A.V.SESHA SAI

 ________________________

 JUSTICE J. UMA DEVI

25.03.2021

siva 

 8

THE HON’BLE SRI JUSTICE A.V.SESHA SAI

AND

THE HON’BLE MS. JUSTICE J.UMA DEVI

CIVIL MISCELLANEOUS APPEAL No.235 OF 2020

Date: 25.03.2021

siva 

Section 9-A applies when any entertainment shows escaped assessment of tax under Section 4 or 4-A. In such an event, the prescribed authority shall assess to the best of its judgment, the tax due on such entertainment shown under section 4 or section 4A after making such enquiry as it considers necessary within a limited 6 period. Section 9-A does not apply as no assessment was done previously and the appellant is not assessed under Section 4 or Section 4(1-A) or Section 4A earlier. If any entertainment tax was assessed under section 4 or section 4(1-A), and if tax escaped the assessment in such past assessment, the invocation of section 9-A comes into picture so as to assess the escaped tax. Since, the proceedings of the Entertainment Tax Officer are assessed for the first assessment, the provisions of Section 9A have no relevance. In the instance case, enquiry, as required under Section 9, has been carried out by giving a notice, but no objections were filed. Therefore, it cannot be said there was any illegality in invoking Section 9, more so, when there is escaped assessment.

AP HIGH COURT 

THE HON’BLE SRI JUSTICE C.PRAVEEN KUMAR

AND

THE HON’BLE SRI JUSTICE BATTU DEVANAND

C.M.A. Nos.591, 594, 596, 598, 599, 600,

603, 604, 609, 590, 607 and 608 of 2019

 DEVATHA MAHAL

-VS-

STATE OF ANDHRA PRADESH

    Advocate - GP FOR COMMERCIAL TAX (AP)

COMMON JUDGMENT : (per the Hon’ble Sri Justice C.Praveen Kumar)

1. The present appeals are filed under Section 9E of A.P.

Entertainment Tax Act, 1939 (for short, ‘the Act’) questioning the

orders dated 26.09.2018 passed by the Appellate Deputy

Commissioner, Tirupati, in ADC Order Nos.3634/28-09-2018,

3634/28-09-2018, 3633/28-09-2018, 3632/28-09-2018,

3635/28-09-2018, 3632/28-09-2018, 3634/28-09-2018,

3635/28-09-2018, 3635/28-09-2018, 3633/28-09-2018,

3633/28-09-2018 and 3632/28-09-2018 respectively.

2. The facts in issue are as under :

 The appellant theatres - Kavali management, have

screened films and filed weekly returns in Form-V along with

Daily Collection Reports under Andhra Pradesh Entertainment

Tax Act, 1939. The details of which are reflected in the order. It

is said that exhibitors have exhibited high budget/dubbing films

in the guise of low budget films and thereby evaded

entertainment tax to the Government, violating Section 4(1-A) of

Andhra Pradesh Entertainment Tax Act and conditions of

G.O.Ms.No.604 (Revenue (CT-IV) Department, dated 22.4.2008.

After careful consideration of the objections filed by the

managers of the theaters, Form-A was issued directing to pay 

2

the balance of tax after deducting the tax paid. Orders passed

by the Entertainment Tax Officer, Kavali, came to be challenged

before the Appellate Deputy Commissioner, who, after going

through the facts in issue and also considering the objection

raised with regard to the applicability of Section 4 vis-à-vis

Section 9, dismissed the appeals. Challenging the same, these

appeals are filed under Section 9E of the Act.

3. The main ground urged by the learned counsel for the

appellants is that in the facts and circumstances of the case,

entertaining an application under Section 4 of the Act without

invoking Section 9-A of the Act is illegal and incorrect. The

second ground urged by the learned counsel for the appellant is

that the appellants herein are entitled to certain exemptions

under the G.O., which were not properly brought to the notice of

the authorities. These two objections were dealt with by the

appellate authority and negatived the same.

4. In so far as entitlement to avail concessions or exemptions

under the entertainment tax, it is to be noted that though

notices were given to the appellants on four occasions on

13.7.2015, 13.6.2016, re-assessment show cause notice on

10.5.2017 and final notice on 12.6.2017, the appellants herein

failed to file objections. The material on record show that if the

appellants intend to differ with the proposal, they have to follow

the conditions laid down in G.O.Ms.No.604, dated 22.4.2008.

They have to file documentary evidence of certified copy of the

feature film/low budget film along with certified copy of 

3

certification obtained from A.P. Film Development Corporation to

the effect the feature film/low budget film is produced in the

State of Andhra Pradesh. The material indicate that the

exhibitors should inform the Entertainment Tax Officer in

advance, in writing, the particulars of screening the feature

film/low budget film produced in A.P. in the application form

represented in G.O.Ms.No.604, dated 22.4.2008. It is clear from

the record that appellants neither filed any objections nor filed

any documentary evidence to contradict the movies screened as

per the UFO, Chennai, even after receiving the detailed date

wise/movie wise information furnished by the Entertainment

Tax Officer, Kavali. Therefore, the argument of the learned

Government Pleader that appellants are not entitled for any

exemptions cannot be brushed aside.

5. At the same time, learned counsel for appellants would

contend that if a reasonable opportunity is given to appellants,

they will file all the objections and documentary evidence

contradicting the movies screened as per the UFO, Chennai.

6. In so far as the applicability of Section 4 and Section 9 of

the Act is concerned, it will be useful to refer to Section 4(1-A)

and Section 9-A of the Act, which are as under :

Section 4(1-A) : There shall be levied and paid to the state

government a tax on the gross collection capacity on every show

(hereinafter referred to as the Entertainments Tax) in respect of

entertainments held in the theatres specified in column (2) of the

table below and located in the local areas specified in the

corresponding entry in column (1) of the said table, calculated at 

4

the rates specified in the corresponding entry in column (3)

thereof for the number of shows prescribed therein for every week.

Local Authority Theatre Rate of tax on the

gross collection

capacity per show

(1) (2) (3)

a) First Grade

 Municipality

All categories of

theatres

10% of the gross

collection capacity

per show multiplied

by 21.

b) Second Grade

 Municipality

All categories of

theatres

9% of the gross

collection capacity

per show multiplied

by 21

c) Third Grade

 Municipality

All categories of

theatres

8% of the gross

collection capacity

per show multiplied

by 17

d)Gram Panchayats

townships and any

local authorities

(1) with a

population of

15,000 and above

i) permanent and

semi-permanent

ii) Touring and

Temporary

7% of the gross

collection capacity

per show multiplied

by 14

7% of the gross

collection capacity

per show multiplied

by 10.

(2) with a

population of 7,500

and above but

below of 15,000.

i) permanent and

semi-permanent

ii) Touring and

Temporary

6% of the gross

collection capacity

per show multiplied

by 14.

6% of the gross

collection capacity

per show multiplied

by 10.

(3) with a

population of less

than 7,500

i) permanent and

semi-permanent

ii) Touring and

Temporary

5% of the gross

collection capacity

per show multiplied

by 14.

5% of the gross

collection capacity

per show multiplied

by 7.

 

5

“Section 9A : Payment for Admission, etc., escaping

assessments :

 “(1) Where, for any reason any entertainment show has

escaped assessment to tax under section 4 or section 4A, the

prescribed authority may, subject to the provisions of sub-section

(3) and at any time within such period as may be prescribed,

assess to the best of its judgment the tax due on such

entertainment show under section 4 or section 4A, as the case

may be, after making such enquiry as it considers necessary and

after giving the proprietor a reasonable opportunity to show cause

against such assessment

 (2) Where, for any reason any entertainment show has

been assessed at a rate lower than the rate at which it is

assessable under section 4 or Section 4-A, as the case may be,

the prescribed authority may, subject to the provisions of subsection (3) and at any time within such period as may be

prescribed, re-assess the tax due on such payment or

entertainment show under section 4 or Section 4-A as the case

may be, after making such enquiry as it may consider necessary

and after giving the proprietor a reasonable opportunity to show

cause against such re-assessment.

 (3) When making an assessment to the best of Judgment

under sub-section (1) or sub-section (2) the prescribed authority

may also direct the proprietor to pay in addition to the tax

assessed, a penalty as specified in sub-section (4).

 (4) The penalty leviable under sub-section (3) shall,--

 (a) in a case where the prescribed authority is satisfied

that the failure of the proprietor to disclose the whole or part of

the particulars correctly or to submit the return before the

prescribed date, was willful, not exceed one and half times the

entertainments tax or the tax on entertainment shows due;

 (b) in a case where such failure was not wilful, not exceed

on half of such tax :

 Provided that where such failure occurred due to a

bonafide mistake on the part of the proprietor, no such penalty

shall be levied.

 Provided further that no penalty under this sub-section

shall be imposed unless the proprietor affected has had a

reasonable opportunity of showing cause against such

imposition.”

7. A reading of the two provisions makes it clear that Section

9-A applies when any entertainment shows escaped assessment

of tax under Section 4 or 4-A. In such an event, the prescribed

authority shall assess to the best of its judgment, the tax due on

such entertainment shown under section 4 or section 4A after

making such enquiry as it considers necessary within a limited 

6

period. Section 9-A does not apply as no assessment was done

previously and the appellant is not assessed under Section 4 or

Section 4(1-A) or Section 4A earlier. If any entertainment tax

was assessed under section 4 or section 4(1-A), and if tax

escaped the assessment in such past assessment, the invocation

of section 9-A comes into picture so as to assess the escaped tax.

Since, the proceedings of the Entertainment Tax Officer are

assessed for the first assessment, the provisions of Section 9A

have no relevance. In the instance case, enquiry, as required

under Section 9, has been carried out by giving a notice, but no

objections were filed. Therefore, it cannot be said there was any

illegality in invoking Section 9, more so, when there is escaped

assessment.

8. The main plea of the learned counsel for appellants

appears to be that if an opportunity is given to appellants, they

would fulfil the requirements by claiming exemptions or

concessions as per the said G.O.

9. The same is strongly opposed by the learned Government

Pleader for Commercial Taxes contending that enough

opportunities have been given to appellants, but, in spite of the

same, they never utilized. She also contends that there is any

amount of doubt as to whether really the appellants are entitled

to any exemptions or concessions as urged by them. According

to her, even if such exemptions or concessions are given, still

appellants would be liable to pay certain amounts. 

7

10. A perusal of the orders impugned shows that it is not as if

the appellants have not paid any money. They have paid some

amount which was adjusted and thereafter the amount due is

reflected in the orders. Having regard to the facts and

circumstances of the case and with a view to give the appellants

an opportunity, we feel that it is a fit case where the matter can

be remanded back directing the appellants to fulfil the

requirements as pleaded here on certain terms and conditions

within a period of four weeks from today. In which event, the

primary authority shall pass appropriate orders within a period

of four weeks thereafter.

11. As the orders of the appellate authority indicate that the

appellants have paid some amounts out of disputed amounts,

and with a view to give an opportunity to appellants (only to the

extent of producing material for availing concessions or

exemptions) the matter shall be remanded back, setting aside the

orders under challenge, subject to appellants paying ½ (half) of

the demanded (disputed) amount, which would be inclusive of

the disputed amount already paid. Further, the appellants

shall comply with the order within four weeks from today, in

which event the primary authority shall pass orders in

accordance with law within four weeks thereafter. If the

appellants fail to deposit the amount within four weeks, as

directed above, the authorities shall proceed further basing on

the earlier orders passed. 

8

12. With the above directions, the Appeals are allowed. No

orders as to costs.

 Consequently, interlocutory applications pending, if any,

shall stand closed.

______________________________

JUSTICE C.PRAVEEN KUMAR

_____________________________

JUSTICE BATTU DEVANAND

Date : 24.03.2020

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