Proof of Will when arose - If a dispute was raised as to the execution and genuineness of a Will, then a question may arise whether the opposite party, who propounded the Will, has proved the same in accordance with law or not. But in the absence of any plea as to casting of any doubt or shadow as to the execution and genuineness of the Will, still would it be obligatory on the part of the plaintiff to adduce evidence to prove the said document. The contention of the plaintiff is that there is no obligation to adduce evidence to prove such document, whose execution and genuineness was not disputed - 2015 A.P.(2006) MSKLAWREPORTS

 Coming to the second issue as to the non-adducing of evidence by the plaintiff to prove Ex.A.6 Will, a perusal of the pleadings clearly shows that no doubt was cast either on execution or genuineness of the Will. What was pleaded by the defendants in the written statement was that the suit schedule property was the Stridhana property of first defendant's mother, therefore, the first defendant succeeds to the same with absolute rights, and hence, the sale deed executed by her in favour of the second defendant is valid. Now having lost in their attempt to claim that it is the Stridhana property of the first defendant's mother, the defendants have now turned round to attack the Will executed by Bomma Suryanarayana under Ex.A.6. Though the learned Counsel relied upon various other decisions where certain observations were made that a legal issue can be raised even at a later stage of the proceedings, but here it is not a pure legal issue. If a dispute was raised as to the execution and genuineness of a Will, then a question may arise whether the opposite party, who propounded the Will, has proved the same in accordance with law or not. But in the absence of any plea as to casting of any doubt or shadow as to the execution and genuineness of the Will, still would it be obligatory on the part of the plaintiff to adduce evidence to prove the said document. The contention of the plaintiff is that there is no obligation to adduce evidence to prove such document, whose execution and genuineness was not disputed.- 2015 A.P.(2006) MSKLAWREPORTS

whether it is open to a claimant to recover entire compensation from one of the joint tort feasors, particularly when in accident caused by composite negligence of drivers of trailor-truck and bus has been found to 2/3rd and 1/3rd extent respectively. Apex court held that (i) In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several. (ii) In the case of composite negligence, apportionment of compensation between two tort feasors vis a vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them. (iii) In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings. (iv) It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award. Resultantly, the appeals are allowed. The judgment and order passed by the High Court is hereby set aside. Parties to bear the costs as incurred.- 2015 S.C.MSKLAWREPORTS

whether it  is  open  to  a  claimant  to  recover  entire
compensation from one of  the  joint  tort  feasors,  particularly  when  in
accident caused by composite negligence of drivers of trailor-truck and  bus
has been found to 2/3rd and 1/3rd extent respectively.
 Apex court held that
(i)   In the case of composite negligence,  plaintiff/claimant  is  entitled
to sue both or any one of the joint tort feasors and to recover  the  entire
compensation as liability of joint tort feasors is joint and several.
(ii)  In the case of composite  negligence,  apportionment  of  compensation
between  two  tort  feasors  vis  a  vis  the  plaintiff/claimant   is   not
permissible.  He can recover at his option whole damages from any of them.
(iii) In case all the joint tort feasors have been  impleaded  and  evidence
is sufficient, it is open  to  the  court/tribunal  to  determine  inter  se
extent of composite negligence of the  drivers.  However,  determination  of
the extent of negligence between the joint tort  feasors  is  only  for  the
purpose of their inter se liability so that one may  recover  the  sum  from
the other after making whole of payment to  the  plaintiff/claimant  to  the
extent it has satisfied the liability of the other.  In case  both  of  them
have been impleaded and the apportionment/ extent of  their  negligence  has
been determined by the court/tribunal, in main case one  joint  tort  feasor
can recover the amount from the other in the execution proceedings.
(iv)  It would not be appropriate for the court/tribunal  to  determine  the
extent of composite negligence  of  the  drivers  of  two  vehicles  in  the
absence of impleadment  of  other  joint  tort  feasors.  In  such  a  case,
impleaded joint tort feasor should be left, in case he so  desires,  to  sue
the other joint tort feasor in independent proceedings after passing of  the
decree or award.

Resultantly, the appeals are allowed.  The  judgment  and  order
passed by the High Court is hereby set aside. Parties to bear the  costs  as
incurred.- 2015 S.C.MSKLAWREPORTS

It is the settled position of law that the institutions located in the successor States are governed by the law of the successor State-laws of the land namely, principle of land, known as doctrine of lex situs In view of the aforesaid discussion, we are constrained to hold that the claim made by the APSC is not sustainable under law. Of course, if there had been any branch of this APSC within the territory of the present State of Andhra Pradesh, it might have continued to function as a fractured and divided body. As there is none, it would be open for the State of Andhra Pradesh to negotiate with the State of Telangana as per provisions of Section 75 of Act, 2014, as above for its services. 45. We therefore declare that all the bankers of the erstwhile APSC will recognize and allow the present TSC to operate the Bank accounts.

THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HONBLE SRI SANJAY KUMAR                

WRIT PETITION Nos. 1873 OF 2015  

01-05-2015

The A.P. State Council of Higher Education rep., by its Secretary (FAC),
Hyderabad...Petitioner

The Union of India, rep., by Ministry of Law & Legislation and Company Affairs,
Central Secretariat Buildings,  New Delhi & four others....Respondents

Counsel for petitioner  : Advocate General (A.P.)
               
Counsel for respondent No.1: Sri B. Narayana Reddy (Asst. Solicitor General)
Counsel for respondents 2&3: Sri E. Madan Mohan
Counsel for respondents 4&5: Advocate General (TG)    

<GIST:

>HEAD NOTE:  

? Cases referred

1.      (2006) 1 SCC 442 = AIR 2006 SC 661  
2.      (2014) 12 SCC 696
3.      AIR 1963 SC 853
4.      AIR 1970 SC 1446
5.      (2006) 5 SCC 330


THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA            
AND
THE HONBLE SRI JUSTICE SANJAY KUMAR        

WRIT PETITION Nos.1873 & 2882 of 2015  

Date:  01.05.2015

In W.P.No.1873 of 2015:

Between

The A.P. State Council of Higher Education  (A statutory
Body pursuant to Legislation vide Act 16/1988), rep. by
its Secretary (FAC), 1st Floor, Opposite to Mahaveer Hospital,
Mahaveer Marg, Masab Tank, Hyderabad-500028.  
                                                                       Petitioner

And

1. The Union of India, rep. by Ministry of Law & Legislation
    and Company Affairs, Central Secretariat Buildings,
    New Delhi., and four others.
                                                             Respondents


In W.P.No.2882 of 2015:

Between

1. The State of Telangana, rep. by its Special Secretary,
    GA (States Reorganization) Department, Government of
    Telangana, Secretariat, Hyderabad, and another.
                                                                       Petitioners

And

1.      Union of India, rep. by its Secretary, Ministry of Home
    Affairs (CS Division), North Block, Central Secretariat,
    New Delhi., and three others.
                                                                     Respondents




THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA            
AND
THE HONBLE SRI JUSTICE SANJAY KUMAR        

WRIT PETITION Nos.1873 & 2882 of 2015  


COMMON ORDER: (Per the Honble The Chief Justice Sri Kalyan Jyoti Sengupta)  
                First mentioned writ petition (W.P. No.1873 of 2015)
(hereinafter referred to as first writ petition)  has been filed by the A.P.
State Council of Higher Education which is a statutory body formed and
constituted under the Act called the Andhra Pradesh State Council of
Higher Education Act, 1988 (hereinafter referred to as Act, 1988)
against the Union of India, the State Bank of Hyderabad, the State of
Telangana and the Telangana State Council of Higher Education.  Second
one (W.P.No.2882 of 2015) has been filed subsequently by the State of
Telangana against the Union of India, the State of Andhra Pradesh and
the A.P. State Council of Higher Education (in short, APSC).

2.              The first writ petition (W.P.No.1873 of 2015) has been filed
seeking relief against the Bank who decided to stop the operation of
Bank account maintained by APSC.  There would not have been any  
difficulty to decide this matter on fact as well as law, had there been no
second writ petition (W.P.No.2882 of 2015)  filed by the Telangana State
Council of Higher Education (hereinafter referred to as TSC).  Therefore,
both the writ petitions are consolidated and heard out analogously.

3.              The factual aspects of both the matters are more or less the
same, and the same is summarized as follows.
               The APSC came into being on publication of Act, 1988 in the
A.P. Gazette on 21.04.1988, followed by G.O.Ms.No.199, Education
Department, dated 17.05.1988 under the provision of Section 3 of Act
1988.    As such, it is a separate statutory and autonomous body having
perpetual seal and succession; and it can sue and be sued.  By and
under the aforesaid Act, 1988, this Council has the exclusive authority
for conducting various common entrance examination tests namely
(i) Engineering and Medical Common Entrance Test (EAMCET)  for
admission of students into Engineering, Medicine and Agriculture,
Pharmacy (ii) Integrated Common Entrance Test (ICET) for admission of
students into MBA and MCA (iii) Education Common Entrance Test  
(EDCET) for admission of students into B.Ed. (Bachelor of Education)
(iv) Engineering Common Entrance Test (ECET)  for admission of
Diploma holders and B.Sc., students into Engineering and Pharmacy
(v) Physical Education Common Entrance Test (PECET) for admission of
students into Physical Education Programmes (vi) Law Common  
Entrance Test (LAWCET) for admission of students into 3  year and
5 year Law Course (vii) Post Graduate Law Common Entrance Test  
(PGLCET) for admission of students into LLM (viii) Post Graduate
Common Entrance Test (PGCET) for admission of students into M.Tech.  
and M. Pharm.

4.              On 20.01.2015, by a written communication, State Bank of
Hyderabad informed that they have decided not to allow the APSC to
operate the Saving Bank A/c. Nos.521889272278 and 62009828659  
maintained in Shantinagar Branch.  By the said communication, it is
informed that the TSC has objected to such operation.   It is asserted by
APSC that this decision of the Bank is high-handed, arbitrary and illegal.
The Bank has no authority to refuse to operate the Bank account as
there has been no garnishee order or order of the appropriate Court
restraining operation of the Bank account.  It is alleged that the claim
and contention of the TSC is untenable under law.
5.                   In the second writ petition (W.P.No.2882 of 2015) it has
been stated that the then State of Andhra Pradesh has been bifurcated
into  two States namely, State of Andhra Pradesh and State of Telangana
under the Andhra Pradesh Reorganization Act, 2014 (hereinafter referred
to as Act, 2014).  Under Sections 3 & 4 of Act, 2014, with effect from the
appointed day i.e., 02.06.2014, these two States are functioning as
separate and independent States.  The Act, 2014 provides for taking
various measures to effectuate smooth functioning of the two
independent States.  One of the measures is the method of functioning of
the existing State institutions on and from the appointed day.  The status
and functioning of the institutions mentioned in the tenth schedule of
the Act are governed by Section 75, which is under Part-II of Act, 2014.
In terms of this provision, the institutions specified in the tenth schedule
located in the State of Telangana or the State of Andhra Pradesh, as the
case may be, should continue to provide facilities to the people of the
other State i.e., the State of Andhra Pradesh from the State of Telangana
and vice versa in accordance with the provisions of this Act.  Section
75 of the Act, 2014 does not provide for apportionment of assets, rights
and liabilities of the institutions between the two successor States.
These institutions specified in the tenth schedule have to work
independently in their own sphere within four corners of the law of the
land.

6.              It is the settled position of law that the institutions located in
the successor States are governed by the law of the successor State-laws
of the land namely, principle of land, known as doctrine of lex situs.

7.              Under Article 246 (2) &  (3) of the Constitution of India, the
State Legislatures are competent to make laws in respect of their territory
covered by the entries in List-II & III of the 7th Schedule of the
Constitution.   Therefore, in terms of Section 75 of Act, 2014, the
specified institutions under the tenth schedule are governed by the laws
of the respective States where they are located.  Having regard to the
aforesaid legal position, the institutions specified in the tenth schedule
located in Telangana are governed by the law of the State of Telangana.

8.              In exercise of the power under Section 101 of Act, 2014,
State of Telangana adopted Act, 1988, with slight modifications vide
G.O.Ms.No.5, Higher Education (UE) Department, dated 2.8.2014, so as
to govern this institution specified at Item No.27 of the tenth schedule.
Thus, the State of Andhra Pradesh has no authority to interfere in the
functioning of the organizations specified in the tenth schedule which are
located in Telangana State territory.  In view of the above, the then
existing body constituted by the then State of Andhra Pradesh, prior to
formation of the State of Telangana,  has no authority to function and
administer an institution located in the State of Telangana  and the said
body automatically ceases to exist and accordingly, the then APSC has
no authority in respect of the institution specified at Item No.27 of the
tenth schedule.   The office of the institution of petitioner No.2, formerly
known as APSC, is now situated in the State of Telangana at Hyderabad.
Therefore, the law enacted by the State of Telangana alone, necessarily,
has application for administration of the institution. Consequently, any
action taken or order now passed by the erstwhile body of the institution
specified at Item No.27 of tenth schedule is without jurisdiction and
would be ultra vires.

9.              The APSC, at the instance of the State of Andhra Pradesh, is
now asserting its power and authority and physically occupying the
premises without any authority of law.   The APSC is not entitled to
operate the bank accounts or withdraw any amount.    Notwithstanding
the aforesaid legal status, even after 2nd June, 2014, the APSC has
withdrawn considerable amounts from the State Bank of Hyderabad,
Shantinagar Branch, in respect of the above two saving bank accounts.
As such, the petitioner No.2 wrote a letter to the State Bank of
Hyderabad and Andhra Bank for freezing of the said accounts.
Accordingly, a decision was taken by the Bank and rightly so.

10.             In the second writ petition (W.P.No.2882 of 2015), in the
aforesaid background,  declaratory reliefs on the above lines have been
sought by the State of Telangana, being one of the petitioner, against the
State of Andhra Pradesh, which is one of the respondents.

11.             Counter-affidavit has been filed to this writ petition
(W.P.No.2882 of 2015) by the APSC taking a legal objection that the
reliefs claimed by the State of Telangana against the State of Andhra
Pradesh cannot be maintained by way of this writ petition in view of the
provisions of Article 131 of the Constitution of India.  That apart, in the
counter-affidavit, it is stated that on bifurcation of the State on
commencement of Act, 2014, the status of APSC, as claimed by the writ
petitioner, is disputed and denied.  According to the APSC, it is fully
entitled to function as such, operate the existing Bank accounts as was
being done before the bifurcation and the provisions of Section 75 of Act,
2014 have no legal impact, since Hyderabad is a common capital for both
the States.

12.             The learned Advocate General for the State of Andhra
Pradesh, while submitting on the question of maintainability of the
second writ petition (W.P.No.2882 of 2015), wherein the State of
Telangana is the petitioner and the State of Andhra Pradesh is a
respondent, contends that the relief Nos.3 & 4 claimed  are not at all
entertainable and further adjudicatable by this Court as the same relate
to the claim and contention and rival contentions between the two States
with regard to assets and properties.

13.             Article 131 of the Constitution of India is the only remedy
and the forum mentioned therein is the only forum for adjudication of
such disputes.  While referring to Article 300 of the Constitution of India,
he says that both the States are sui juris and they can sue and be sued,
the meaning and expression of the State as mentioned in Article 131 is
not synonymous with that as mentioned in Article 12 or 226 of the
Constitution of India.   The phraseology, namely, to the exclusion of any
other Court mentioned in Article 131 is clear enough to indicate that this
Court has no jurisdiction.   In support of his submission, he has placed
reliance on the decisions of the Supreme Court in Tashi Delek Gaming
Solutions Limited v. State of Karnataka  and State of Tamil Nadu v. State
of Kerala .

14.             On the point of maintainability, the learned Advocate
General for the State of Telangana submits that the bar under Article
131 will be applicable when one State sues exclusively the Union of India
or any other State.   If there is any involvement of third parties in any
action, the above bar is not at all applicable, like the present one.   In
support of his submission on this point, he has placed reliance on the
judgments of the Supreme Court reported in Tashi Delek Gaming
Solutions Limited v. State of Karnataka (1 supra), Anant Prasad
Lakshminiwas Ganeriwal v. State of A.P. , The State of Bihar v. The Union
of India  and Nautam Prakash DGSVC, VADTAL v. K.K. Thakkar .  

15.             However, on merits, the learned Advocate General for the
State of Andhra Pradesh submits that, if the above two reliefs are
excluded, this writ petition can be maintained in that case and it is
possible for this Court to decide the matter.

16.                 The learned Advocate General for the State of Andhra
Pradesh submits on merits after placing the fact that the State of
Telangana and the TSC are aware of the details of the funds, if any, the
petitioner Council is also very much aware that the funds are in tact in
the form of Fixed Deposits in the Banks located in Hyderabad only.  In
this regard, reference is made to the letter dated 5.9.2014 addressed by
the Telangana Government to the Government of Andhra Pradesh  
seeking bifurcation of the staff and available funds.  Act of adaptation by
G.O.Ms.No.5 dated 2.8.2014 to G.O.Ms.No.33 dated 31.12.2014 would  
amount to amendment of the Act, 1988.   Hence, such amendment is not  
valid in law for the reason that APSC still remains as an independent
statutory body, which is functioning at the common capital of Hyderabad
till it is bifurcated as per the procedure laid down under Section 75 of
Act, 2014.   He contends that the Telangana Government has adopted
Act, 1988 and Regulations issued thereunder under Section 101 of Act,
2014, to create the 5th respondent Council vide G.O.Ms.No.5 dated
2.8.2014 with effect from 2.6.2014 for the purpose of facilitating its
operation in relation to the State of Telangana and not otherwise.   The
very adaptation of the Act under Section 101 of Act, 2014 is not
applicable to those institutions specified in the tenth schedule under
Section 75 of Act, 2014 till the procedure contemplated under Section
75 of Act, 2014, which mandates either the continuation of the
institutions for the people of both the States beyond one year or deletion
of such institutions from the tenth schedule depends upon the decision
of the 1st respondent Government and the same is binding on both the
Governments.  The procedure contemplated under Act, 2014 for ninth
schedule institutions is distinct and different and the same cannot be
compared with tenth schedule institutions.  The adaptation of the APSC,
which is listed in the tenth schedule, creating a parallel one being TSC
invoking Section 101 of Act, 2014 is contrary to the procedure laid down
under Section 75 of Act, 2014.

17.             He contends further that APSC is located in a common
capital for both the States of Andhra Pradesh and Telangana for a period
not exceeding ten years,  as per Section 5 of Act, 2014.   Therefore,
Telangana Government, having created TSC, cannot now claim territorial
jurisdiction exclusively over APSC, which is a specified institution in the
tenth schedule under Section 75 of Act, 2014, without going through the
due process mandated under the said Act.   Thus, the words located in
that State mentioned in Section 75 of Act, 2014 means to facilitate the
services to the people of other States by the institutions specified in the
tenth schedule.

18.             The question of TSC becoming a successor organization  to
the petitioner Council would only happen as and when APSC is
bifurcated as per law laid down in Sections 75 & 79 of Act, 2014.   Thus,
as long as APSC is listed in the tenth schedule under Section 75 of Act,
2014, the question of TSC taking its place as a successor organization
does not arise since Section 101 of Act, 2014 is permissive in general,
but adaptation of the institution specified in the tenth schedule under
Section 75 of the aforesaid Act, 2014 i.e., lock, stock and barrel, is
impermissible and void in law.

19.             The Circular dated 30.10.2014 addressed to the various
Banks requesting to stop withdrawals cannot be made applicable to
tenth schedule institutions for the reason that the Act, 2014 does not
provide any procedure for division of funds of tenth schedule
institutions.  Therefore, applying the said Circular and freezing the
accounts of the petitioner Council by the  2nd & 3rd respondent Banks is
totally erroneous and illegal.   Therefore, the question of disputes of
funds between the States of Telangana and Andhra Pradesh does not and
cannot arise, without bifurcation of the APSC.   Therefore, freezing of the
accounts based on a letter written by the Bank on 8.1.2015 under the
guise of the Circular dated 30.10.2014 is totally illegal and amounts to a
collusive act of the Bank with the State of Telangana.

20.             The learned Advocate General appearing for the State of
Telangana submits that APSC, Hyderabad is an institution constituted
under sub-section (1) of Section 3 of Act, 1988 and the said institution
was defined under clause (e) of Section 2 of Act, 1988.   It is submitted
that sub-section (3) of Section 3 of Act, 1988 provides that the
headquarters of the State Council shall be located at Hyderabad.   The
said institution was constituted with an object to advise the State
Government and set standards of Higher Education, etc., as set out in
the objectives of Act, 1988.  The said Council has been functioning since
1988 onwards in Hyderabad and it has no other sub-offices or branch
offices in the then existing State of Andhra Pradesh, except Hyderabad.
The said Council was specified and included in the tenth schedule of the
Act under Section 75 of Act, 2014.     The institutions listed in the tenth
schedule shall continue to provide facilities to the people of other State
even after bifurcation of the State on certain terms and conditions as
may be agreed between the two States.   There is no partition provided in
respect of the institutions specified in the tenth schedule except
providing service.  Undisputedly, since the institution is located in
Hyderabad, the institution will be governed by the law of the land, known
as the doctrine of lex situs.  In terms of the doctrine of lex situs,  all the
rights over or in relation to any institutions are governed by the law of
that State where the said institution is located.   In this context, he
referred to a decision of the Supreme Court in case of Anant Prasad
Lakshminiwas Ganeriwal v. State of A.P. (3 supra).  The territory of
Hyderabad District is included in the State of Telangana under Section 3
of Act, 2014.  The State of Andhra Pradesh is entitled to locate its
headquarters in the Hyderabad city for  a period not exceeding ten years,
but it is not given any right over the territory or its law making power or
administration. Section 75 of Act, 2014 clearly states that the
institutions located in that State would extend the services to other State
on such terms and conditions of agreement.  The State of Telangana was
formed with effect from 2.6.2014.  Thereafter, Act, 1988 was adapted in
the name and style of Telangana State Council of Higher Education Act
under Section 101 of Act, 2014 vide G.O.Ms.No.5 dated 2.8.2014.
Pursuant to the said adaptation, a new Council was constituted for Item
No.27 of the tenth schedule, known as the Telangana State Council of
Higher Education.   In view of the same, the State of Andhra Pradesh or
its Higher Education Council has no authority over the said institution.
Thus, the State of Telangana and its enacted law will have application
over the said institution.   Act, 2014 provided for the ownership of the
institution on territorial basis located in the respective territory and there
is no division of assets and liabilities of the institutions listed in the tenth
schedule.   He submits further that under Sections 68 & 71 of Act, 2014,
even the State Government Companies and Corporations are allowed to
continue on territorial basis as owners except State headquarters  which
are existing State-wide operations.

21.             He concluded that neither the State of Andhra Pradesh nor
the Council constituted by the erstwhile State of Andhra Pradesh can
have any control, authority or function over the State Council and
operate the Bank accounts of the A.P. State Council of Higher Education
located in Hyderabad.

22.             After considering the submissions and contentions of both
the parties, we feel that it is incumbent upon us to decide the
preliminary objection raised by the learned Advocate General for the
State of Andhra Pradesh whether the reliefs, being prayer Nos.3 & 4, in
W.P.No.2882 of 2015 can be entertained by this Court or not.   In other
words, whether the provisions of Article 131 of the Constitution of India,
which reads as follows, is a bar or not?
131. Original jurisdiction of the Supreme Court:- Subject to the
provisions of this Constitution, the Supreme Court shall, to the
exclusion of any other court, have original jurisdiction in any
dispute
(a) between the Government of India and one or more States; or
(b) between the Government of India and any State or States on one
side and one or more other States on the other; or
(c) between two or  more States,
if and insofar as the dispute involves any question (whether of law or
fact) on which the existence or extent of a legal right depends:
     Provided that the said jurisdiction shall not extend to a dispute
arising out of any treaty, agreement, covenant, engagement, sanad or
other similar instrument which, having been entered into or executed
before the commencement of this Constitution, continues in
operation after such commencement, or which provides that the said
jurisdiction shall not extend to such a dispute.

23.             On a plain reading of Article 131 of the Constitution of India,
it appears, without any doubt, that the Supreme Court has original
jurisdiction to entertain a lis with regard to the disputes between the
Government of India on one hand and one or more States on the other,
or between the Government of India and any State or States on one side
and one or more other States on the other, or between two States and
this dispute relates to any question whether on fact or law which the
existence or extent of a legal right of the aforementioned disputants
depends.

24.             Therefore, it postulates the legal right of the two parties
mentioned above and not that of any other third party.  In other words, a
fight between two States to establish any legal right based on fact and
law can be decided by the Supreme Court alone and in that situation, it
clearly ousts the jurisdiction of other Courts.

25.              According to us, in order to apply the aforesaid
Constitutional bar, the fact of the lis and claim and contention in
substance, involved therein must confine to the two States exclusively,
not involving nor referring to any third party.   As it is rightly argued by
the learned A.G. for the State of Telangana,  the word State mentioned
in Article 131 of the Constitution of India is to be construed in strict
sense viz., sovereign State, not that of as mentioned in wider sense in
Article 12 of the Constitution of India.

26.             On a reading of both the writ petitions, it appears to us that
the APSC is a separate legal entity and it has been constituted by and
under the Act, 1988 and by this writ petition, the aforesaid Council has
claimed funds lying in the Bank in its name.   It appears that the TSC is
also a separate legal entity.  Therefore, these mutual but rival rights and
claims are really sought to be established merely by both the two
separate statutory bodies viz., of the State of Andhra Pradesh and the
State of Telangana after being created by making appropriate legislation
either by original or by way of adaptation of original.

27.             Hence, we do not think that these two writ petitions are in
the real sense a fight between two independent States as contemplated
under Article 131 of the Constitution of India.

28.             As far as the reliefs mentioned in 3 & 4 in W.P.No.2882 of
2015 are concerned, the same are merely surplusage and can safely be
excluded.  We, therefore, delete the same.  Consequently, we hold that
the later writ petition is also maintainable.

29.            We now proceed to decide the claims and contentions
on merit.

30.             In these two matters, there is no dispute as regards factual
aspects and the same are briefly stated hereinafter.  The APSC came into
existence by and under the Act, 1988 by virtue of Section 3 of this Act.
The said Section is set out hereunder:
3. Constitution of State Council of Higher Education:-
(1)             The Government may, by notification, and with effect on
and from such date as may be specified in this behalf, constitute a
State Council for the purpose of this Act to be called the Andhra
Pradesh State Council of Higher Education.
(2)        (a)    The State Council shall be a body corporate having
perpetual succession and a common seal and shall sue and be sued by
the said corporate name.
            (b)            In all suits and other legal proceedings by or against the
State Council the proceedings shall be signed and verified by the
Secretary and all processes in such suits and proceedings shall be
issued to and served on the Secretary.
(3)                The Headquarters of the State Council shall be located
at Hyderabad.


31.             Thus, it is clear that this Council is a statutory body and it
has an independent legal character from that of the Government
functioning.   It seems to us that the statutory body was intended to be
created to give autonomy with regard to maintaining, promoting and
improving standards of higher education.   The composition of the
Council is provided under Section 4 of the Act, 1988.   The said Section
reads as follows:
4. Composition of the State Council:- (1) The State Council shall
consist of the following members, namely:
I. Full Time Members:
(i) a Chairman; and
(ii) a Vice-Chairman,
to be appointed by the Government from among eminent educationists.

II. Ex-Officio Members:
(i) the Secretary to Government, Education Department;
(ii) the Secretary to Government, Finance Department;
(iii) the Secretary to Government, Labour, Employment and Technical
Education:
(iv) the Secretary or any other officer of the University Grants
Commission not below the rank of a Joint Secretary nominated by the
Chairman, University Grants Commission.

III. Other Members:
(i) four persons to be appointed by the Government from among
eminent educationists;
(ii) one person who shall represent the industry to be appointed by the
Government:
(iii) three persons of whom one shall be a technical expert, to be
nominated by the State Government.

(2) Every appointment under this section shall take effect from the date
on which it is notified by the Government.


32.             It further appears that this Council under the Act has to get
grants from the Government as permitted by the Legislative Assembly of
the State.    The Council, under Section 18 of Act, 1988, is guided by the
direction of the Government and the Council has also accountability
under Section 19 to the Government.   The Government is entitled to
make inspection and enquiry into the works done by the State Council.
Under Section 21 of the said Act, the Government has powers to revise
any decision of the Council.

33.                 In view of the bifurcation of the erstwhile State of Andhra
Pradesh by Act 2014, the status and functioning has been mentioned in
Section 75 of the Act, 2014.  The said Section provides as follows:
75. Continuance of facilities in certain State institutions:-
(1)         The Government of the State of Andhra Pradesh or the State of
Telangana, as the case may be, shall, in respect of the institutions
specified in the Tenth Schedule to this Act, located in that State,
continue to provide facilities to the people of the other State which
shall not, in any respect, be less favourable to such people than what
were being provided to them before the appointed day, for such period
and upon such terms and conditions as may be agreed upon between  
the two State Governments within a period of one year from the
appointed day or, if no agreement is reached within the said period, as
may be fixed by order of the Central Government.

(2)       The Central Government may, at any time within one year from
the appointed day, by notification in the Official Gazette, specify in the
Tenth Schedule referred to in sub-section (1) any other institution
existing on the appointed day in the States of Andhra Pradesh and
Telangana and, on the issue of such notification, such Schedule shall
be deemed to be amended by inclusion of the said institution therein.


34.             It would appear from the tenth schedule, this Council is
indicated at Sl.No.27.

35.              Now, the core issue in these matters is as to who can claim
the ownership and control of this Council.

36.              If the aforesaid Section is read carefully, it would appear, as
rightly contended by the learned Advocate General for the State of
Telangana, that the State Council, which was in existence on the
appointed day is to be and/or deemed to have been allocated to the State
of Telangana as this Council is located at Hyderabad which is a part of
the State of Telangana as mentioned in Section 3 of Act, 2014.  Since the
Council comprises of land and building, it is essentially an immovable
property and it remains at a place where it is.   We, therefore, usefully
reproduce this Section hereunder:
3. Formation of Telangana State:-  On and from the appointed day,
there shall be formed a new State to be known as the State of
Telangana comprising the following territories of the existing State of
Andhra Pradesh, namely:-
Adilabad, Karimnagar, Medak, Nizamabad, Warangal,  
Rangareddi, Nalgonda, Mahabubnagar, Khammam (but excluding    
the revenue villages in the Mandals specified in G.O.Ms.No.111,
Irrigation & CAD (LA IV R&R-I) Department, dated the 27th June,
2005 and the revenue villages of Bhurgampadu,
Seetharamanagaram and Kondreka in Bhurgampadu Mandal)    
and Hyderabad districts,

and thereupon the said territories shall cease to form part of the
existing State of Andhra Pradesh.

37.             We are unable to accept the contention of the learned A.G.
for the State of Andhra Pradesh that since Hyderabad is a common
capital for the State of Andhra Pradesh, this Council which was in
existence prior to the appointed day would continue to remain and would
stand allocated to the State of Andhra Pradesh as its property.

38.             On a fair reading of Section 5 of Act, 2014, as correctly
contended by the learned A.G. for the State of Telangana, the State of
Andhra Pradesh is a mere user of the city of Hyderabad for a maximum
period of ten years.   It has no proprietary right, title and interest in this
city and none of the assets which belong to the erstwhile State of Andhra
Pradesh, located at Hyderabad, can be claimed by the State of Andhra
Pradesh except in accordance with Act, 2014.  Similarly, any institutions
mentioned in the tenth schedule, situated in the territory of bifurcated
State of Andhra Pradesh will stand allocated to that State and the State
of Telangana cannot have any claim over the said property.
For example, Sri Padmavathi Mahila University, Tirupati, which is
situated in Tirupati, at Sl.No.57 of the tenth schedule, will stand
allocated exclusively to the State of Andhra Pradesh.  However, despite
this legal status of the institutions mentioned in the tenth schedule, they
will continue to serve the people of the other State within which it is not
located, which will not be less favourable to such people than what were
being provided to them before the appointed day, for such period and
upon such terms and conditions as may be agreed upon between the two  
State Governments within one year from the date of the appointed day.

39.             At present, as far as this Council is concerned, there has
been no agreement and the period of one year is yet to be over also.
It does not appear that the Central Government has intervened in the
matter.  But, it would be open for both the States to work out this issue.

40.             Therefore, in this case, factually, it appears that by virtue of
G.O.Ms.No.5 dated 2.8.2014 the Government of Telangana, in exercise of
powers under Section 101 of Act, 2014, has adopted the Act, 1988 with
modification that it should be read as Andhra Pradesh State Council of
Higher Education Act (Telangana Adaptation Order), 2014.   Because of
the adaptation with amendments in the eye of law, APSC has no
existence, at least in Hyderabad, or in any part of Telangana State, if
there be any branch of this office.   It further appears that consequent
upon the aforesaid adaptation with amendment by G.O.Ms.No.6 dated
5.8.2014 and by G.O.Ms.No.7 dated 5.8.2014, a notification is issued for
changing composition of the body and fresh appointments of Chairman,
Vice-Chairman and other Members have also been made.  

41.             Under such circumstances, the assets and properties and
funds whatever lying at the present location of the APSC belong to TSC.

42.             We cannot accept the contention of the learned A.G. for the
State of Andhra Pradesh that by a Government Order a statute cannot be
amended in view of the specific provision of Section101 of Act, 2014,
which reads as follows:
101. Power to adapt laws:- For the purpose of facilitating the
application in relation to the State of Andhra Pradesh or the State of
Telangana of any law made before the appointed day, the appropriate
Government may, before the expiration of two years from that day, by
order, make such adaptations and modifications of the law, whether
by way of repeal or amendment, as may be necessary or expedient, and
thereupon every such law shall have effect subject to the adaptations
and modifications so made until altered, repealed or amended by a
competent Legislature or other competent authority.

Explanation:- In this section, the expression appropriate
Government means as respects any law relating to a matter
enumerated in the Union List, the Central Government, and as
respects any other law in its application to a State, the State
Government.

43.             When the Legislature has delegated this power to the
Government under the Statute itself, it is deemed to be an Act of the
Legislature.  Therefore, this contention has no force at all and this
provision, if read along with Section 100 of Act, 2014, as the power of
adaptation with amendments has been expressly provided in the
aforesaid provision of law.

44.             In view of the aforesaid discussion, we are constrained to
hold that the claim made by the APSC is not sustainable under law.
Of course, if there had been any branch of this APSC within the territory
of the present State of Andhra Pradesh, it might have continued to
function as a fractured and divided body.   As there is none, it would be
open for the State of Andhra Pradesh to negotiate with the State of
Telangana as per provisions of Section 75 of Act, 2014, as above for
its services.

45.             We therefore declare that all the bankers of the erstwhile
APSC will recognize and allow the present TSC to operate the
Bank accounts.

46.             Thus, both the Writ Petitions are disposed of accordingly.
There will be no order as to costs.
               Consequently, pending miscellaneous petitions, if any, shall
also stand closed.
____________________________    
Kalyan Jyoti Sengupta, CJ
__________________  
Sanjay Kumar, J
Dt. 01.05.2015

Or.39, Rule 1 & 2 and Sec. 151 and sec.94 of C.P.C - Police aid when to be granted - hear both parties when resisted - to avoid dispossession of actual possessor with the help of police aid - identify the property before issuing of police aid with the help of advocate commissioner if necessary - since the defendant pleaded that before the filing of suit and after filing of the suit ,he never trespassed into the suit schedule property nor violated interim injunction order - even though no evidence of violation of injunction not filed , the lower court feels that no prejudice would be caused to the respondent when police aid is granted -2013 A.P. msklawreports

filed the I.A.No.175 of 2010 for granting
police aid on the ground that the order of ad-interim injunction could not be
implemented as the petitioners involved in violating it.
In particular the petitioner has not filed any document to show that the
injunction granted by this Court is being violated or the respondents damaged
his quarry
It is the case of the respondents that
they did not trespass into suit schedule property before or after the injunction
is granted.  What that is the case of the respondents, this Court feels that no
prejudice would be caused to the respondents if the police aid is granted to
implement the order of this Court."
 the Court below granted the police aid
aggrieved by which the present C.R.P. has been filed

However, whereas great caution is to be taken for granting ex
parte ad-interim injunction equal measures are to be taken while granting police
aid to enforce that order. 
 Under the guise of an order of ad-interim injunction
and also the corresponding police aid granted there may be a possibility of
vacating from the property in the litigation a person who is in actual
possession of the property as of right. 
Therefore, whenever such order of
granting police aid is resisted it is advisable to hear both the parties to the
litigation and dispose of the petition filed for interim injunction pending
disposal of the main proceedings itself. 
 Further some times question of
identity of the property in dispute arises.  Thereby unless there is clear
identity of the property in dispute mere granting of Police aid would not be
suffice.   
In such case, an Advocate Commissioner is to be appointed necessarily
to localize the property and only subject to the localization of the properties,
necessary Police aid can be granted or both the Police aid and localization of
the property can be granted s

While so, it is stated that after completion of quarrying operations, the authorities redelivered possession of the lands to all the original land-owners including the 1st petitioners husband and the respondents-authorities also issued Delivery Certificates vide Reference No.D935/90, dated 24.11.1990 to the other land owners, but did not issue Delivery Certificate to the husband of the 1st petitioner

HONOURABLE SRI JUSTICE CHALLA KODANDA RAM            

W.P.No.1761 of 2015

16-02-2015

Rayavarapu Venkata Lakshmi and another .petitioners
                               
The State of A.P. and three others. Respondents

Counsel for the Petitioners: Sri Dasari S.V.V.S.V. Prasad

Counsel  for Respondent Nos.1 to 4:  Spl. G.P. for Assignment

<Gist :

>Head Note:

? Cases referred:

2012(6) SCJ 862 or SCALE 2012(9) 142

HONBLE SRI JUSTICE CHALLA KODANDA RAM          

W.P.No. 1761 of 2015

DATE: 16.02.2015

O R D E R:-

        The petitioners assert that in the year 1976, the
Government, for the purpose of quarrying the stone for
construction / repair of Godavari Barrage in Rajahmundry,
East Govadari District, acquired a total an extent of Ac.29.14
cents of land in various survey numbers including the lands
belonging to the petitioners in an extent of Ac.3.40 cents in
R.S.Nos.43/7 and 44/3A by virtue of an Award No.12/1980,
dated 01.05.1980.  While so, it is stated that after completion
of quarrying operations, the authorities redelivered possession
of the lands to all the original land-owners including the
1st petitioners husband and the respondents-authorities also
issued Delivery Certificates vide Reference No.D935/90, dated
24.11.1990 to the other land owners, but did not issue
Delivery Certificate to the husband of the 1st petitioner.  After
demise of the 1st petitioners husband, the petitioners made
representation dated 25.06.2014 requesting the
2nd respondent-District Collector to issue Delivery Certificate.
Now, the petitioners grievance is that even though the
2nd respondent-District Collector forwarded their
representation to the 3rd respondent-Revenue Divisional
Officer, vide proceedings dated 16.07.2014, the
3rd respondent has not taken any action thereon so far.
Hence, the present writ petition is filed seeking appropriate
directions.
     The learned counsel for the petitioners submits that in
similar circumstances, this Court, by order dated 18.06.1998
in W.P.No. 23867 of 1996, had directed the 3rd respondent-
Revenue Divisional Officer to handover possession of the lands
to the petitioners therein within a period of two months from
the date of receipt of a copy of the order.  He further submits
that the petitioners also are similarly situated, but there is a
hostile discrimination on the part of the respondents in not
considering the petitioners request and nor passing similar
orders to that effect.
        On the other hand, Sri D.Prasad, the learned Special
Government Pleader for Assignment has submitted that as per
the instructions dated 14.02.2015 received from the
Sub-Collector, Rajahmundry, the petitioners herein had been
paid compensation for the lands acquired from them and
further when they filed O.P.Nos. 13 and 14 of 1982 seeking
enhancement of the compensation, the enhanced  
compensation was also ordered and deposited in their favour.
It is also submitted that as per the written instructions, the
Chief Engineer, Dowleswaram, vide his letter dated
11.09.1989, reported that their Department proposed to
retain certain extents of lands in Sy.Nos.43/7, 44/3A, 43/6B,
67/3A and 74/2 admeasuring Ac.5.85 cents including the
petitioners lands for carrying out balance works, maintenance
works and flood protection works, etc., and accordingly,
retained the petitioners lands, as such, the petitioners
request cannot be considered.
        Having considered the rival submissions and having
perused the order dated 18.06.1998 passed in W.P.No. 23867
of 1996, this Court is not inclined to issue a mandamus in
favour of the petitioners based on the order passed by this
Court inasmuch as that order is passed in the facts of the case
and the same cannot be treated as a binding precedent
especially in the light of the judgment of the Apex Court
reported in V. Chandrasekharan v. Administrative Officer
holding the view contra to the view expressed by the learned
single judge.  However, this Court deems it appropriate to
direct the respondents to take a decision on the
representation dated 25.06.2014 said to have been made by
the petitioners, in accordance with law and communicate the
same to the petitioners within a period of three months from
today.
     With the above direction, the writ petition is disposed
of.  No order as to costs.
        As a sequel to the disposal of the writ petition,
Miscellaneous Petitions, if any pending, shall stand disposed of
as infructuous.
_______________________  
CHALLA KODANDA RAM, J      
16.02.2015

If the respondents, without issuing any prior statutory notice in writing to the petitioner, takes any action against him by way of eviction / dispossession from the land in question resulting in any damage or loss to the petitioner or his property, the petitioner shall be entitled to proceed against the individual officers in their personal capacity seeking damages to the property and prosecute them for trespass into the lands.

HONOURABLE SRI JUSTICE CHALLA KODANDA RAM            

W.P. No.282 of 2011

19-02-2015

Mantena Kishore Babu.petitioner
                               
The District Collector and two others. Respondents

Counsel for the Petitioners: Sri P.R.K. Amarendra Kumar

Counsel  for Respondent Nos.1 to 3:  G.P. for Revenue

<Gist :

>Head Note:

?Cases referred:

HONBLE SRI JUSTICE CHALLA KODANDA RAM          

W.P.No. 282 of 2011

DATE: 19.02.2015

O R D E R:-

        The sum and substance of the petitioners case as
reflected from the affidavit is that the petitioner is possession
and enjoyment of agricultural lands in an extent of Ac.4.46
cents in R.S.No. 112/3 and Ac.4.88 cents in R.S.No. 112/4
situated in Kamayyapalem village, Jeelugumilli Mandal, West
Godavari District having acquired the same from his late
father  Sri Ranga Vara Prasad Satyanarayana Raju by way of
succession and the Special Deputy Collector, by order dated
10.05.1996, declared possession of the lands in favour of the
petitioner and that orders have become final as no appeal has
been preferred against such orders.  Now, the petitioners
grievance is that the 3rd respondent, on 10.01.2011, without
passing any statutory orders, tried to evict the petitioner from
the lands in question stating that the land belongs to the
Government.  Hence, the present writ petition is filed seeking
appropriate directions.
        The learned counsel for the petitioner has submitted
that in every agricultural season, the respondents, without
any authority, are threatening the petitioner orally to vacate
the schedule lands.
        Having regard to the specific submission made by the
learned counsel for the petitioner that even though orders
dated 10.05.1996 have been passed by the Special Deputy
Collector declaring the lands as belonging to the petitioner
and such orders having become final, the 3rd respondent,
without issuing any statutory notice or having any statutory
authority, is taking steps to evict the petitioner from the lands
in question particularly in every agricultural season, and in
view of the fact that no counter affidavit is forthcoming
contradicting the pleadings, this Court is inclined to dispose of
the writ petition with the following observation:
If the respondents, without issuing any prior statutory notice in
writing to the petitioner, takes any action against him by way of
eviction / dispossession from the land in question resulting in any
damage or loss to the petitioner or his property, the petitioner
shall be entitled to proceed against the individual officers in their
personal capacity seeking damages to the property and prosecute
them for trespass into the lands.

     With the above observation, the writ petition is disposed
of.  No order as to costs.
        As a sequel to the disposal of the writ petition,
Miscellaneous Petitions, if any pending, shall stand disposed of
as infructuous.
______________________  
CHALLA KODANDA RAM, J      
19.02.2015 

writ of Mandamus in the form of declaration that the action of respondent Nos.3 and 4 in not absorbing him as a District Judge in pursuance of the notification dated 13.08.2012 is illegal and unconstitutional.

THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HONBLE SRI JUSTICE SANJAY KUMAR              

WRIT PETITION No. 2928 OF 2015  

18-02-2015

Kandelli Bhishma Gangeyudu Petitioner

The State of A.P., rep., by its Chief Secretary, Hyderabad and
others.Respondents

Counsel for petitioner:Sri Vedula Srinivas    

Counsel for respondent No.1:Government Pleader for GAD (AP)
Counsel for respondent No.2  :  Government Pleader for GAD (TG)

                                                       
<GIST:

>HEAD NOTE:  


? Cases referred


This Court made the following:


THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA            
AND
THE HONBLE SRI JUSTICE SANJAY KUMAR        

WRIT PETITION No. 2928 of 2015  

ORDER: (Per the Honble the Chief Justice Sri Kalyan Jyoti Sengupta)

        This writ petition has been heard for final hearing today.  By this writ
petition the petitioner asked for issuance of writ of Mandamus in the form of
declaration that the action of respondent Nos.3 and 4 in not absorbing him as a
District Judge in pursuance of the notification dated 13.08.2012 is illegal and
unconstitutional.

        The petitioner is a Fast Track Court Judge, and pursuant to the
notification
dated 13.08.2012 he has taken examination for absorption in the regular cadre of
the District Judge.  This participation was made on the strength of the
direction
given by the Honble Supreme Court in the case of Brij Mohan Lal vs. Union of
India and others .  There is no dispute that the petitioner secured 42 marks out
of
150 marks in the written test.  Going by the norms he should not have been
allowed to participate in the oral interview as he could secure less than
qualified
marks.  However, on the strength of the interim order dated 13.12.2012 passed by
this Court in W.P.No.37852 of 2012 filed by the petitioner such an opportunity
was given, and he secured 17 marks out of 100 marks.  The petitioner says to
maintain his challenge that evaluation of the answer scripts in the written test
was
not fair and rational and if reevaluation is done he could secure better marks
to
qualify himself so that he could be absorbed going by the published norms.

        Sri Vedula Srinivas, learned counsel appearing for the petitioner, would
contend that the Court has ample power to direct reevaluation and reassessment
of
the answers given by the petitioner.  He drew our attention to a few questions
and
suggested answers and submits that as the key answer itself is wrong, evaluation
is
automatically wrong.

        In this given situation the Honble Supreme Court has allowed reevaluation
of the answer scripts.  To support his submission he has cited the decisions of
the
Honble Supreme Court in the cases of Sahiti and others vs. Chancellor,
DR.N.T.R. University of Health Sciences and others  and Rajesh Kumar and
others vs. State of Bihar and others .

        After hearing the learned counsel for the petitioner and noticing the
material annexed to the petition, we do not find any legal provision for
reevaluation of answer scripts.  The Court cannot be a substitute of examiner or
of
the expert body.  Interview was taken by the petitioner before the Committee
comprising of the Honble Chief Justice and number of Senior Judges of this
Court. The assessment of highest authority of the State judiciary is of great
value
and nothing has been placed to upset the same.

        Mr. Srinivas says that in this case, as it was done in the case of Rajesh
Kumar and others (3 supra), this Court should direct the respondents to reassess
or reevaluate the papers by appointing an expert. We are unable to accept this
submission, as there is no legal provision for the same.

        We have seen the said judgment of the Honble Supreme Court.  It appears
from paragraphs 19 and 20 thereof that in that case factually it was found that
41
key answers out of 100 were found to be erroneous and on the basis thereof
evaluation was made and in that context the Honble Supreme Court found that if
those 41 questions key answers are taken into consideration then there was fair
chance of the petitioner succeeding in the matter.  In this case factually
except one
question and answer no other questions and answers could be shown to be
erroneous.  Therefore, on the facts and circumstances of the case even if
reevaluation is allowed hardly there would be difference.

        As far as the decision of the Honble Supreme Court in the case of Sahiti
and others (2 supra) is concerned, this judgment really goes against the
petitioners contention and it could be found from para 36 thereof, which reads
as
follows:
        The Supreme Court (in Board of Secondary Education case 1) was of
the opinion that the question whether in the absence of any provision to that
effect an examinee is entitled to ask for re-evaluation of his answer books was
examined by the Supreme Court in Pramod Kumar Srivastava v. Bihar Public
Service Commissioner ((2004) 6 SCC 714).  It was noticed by the Supreme Court
that in the said decision it was held that in the absence of rules providing for
re-
evaluation of answer books no direction should be issued because a direction for
re-evaluation of the answer books would throw many problems and in the larger
public interest such a direction must be avoided.  Therefore, the Supreme Court
expressed the opinion that the order of the High Court directing re-evaluation
of
the answer books of all the examinees securing 90% or above marks was clearly
unsustainable in law and set aside the same.  The above decision deals with the
right of the student or candidate to claim re-examination/re-evaluation of his
answer sheet and the power of the High Court to order revaluation of answer
sheets.  It does not deal with the power of the Board to order re-evaluation of
answer books if the factual scenario so demands.

        Therefore, it is clear that if the authorities concerned are of the
opinion for
reevaluation, it could be done, and it cannot be done by the Court nor the Court
can mandate the authorities to do so.  It is the exclusive domain of the
appointing
authority or selection committee.  There is no legal provision for reevaluation
nor
the authorities concerned are empowered under the rules and law to do so.  On
the
question of reevaluation in that case factually it was found that the
Vice-Chancellor was conferred with the power to take such a decision.
Therefore,
the aforesaid judgment is clearly distinguishable with the facts and
circumstances
of this case.

        In that view of the matter, we do not find any reason to interfere with
this
matter.
        The writ petition is accordingly dismissed.    

        Pending miscellaneous petitions, if any, shall also stand dismissed.  No
order as to costs.

___________________  
K.J. SENGUPTA, CJ  

_______________  
SANJAY KUMAR, J  
Date: 18.02.2015

Whether, on the facts and in the circumstances of the case, the funded interest could be said to be non-payment of interest in the relevant year to invoke the proviso to Section 43B of the Act to disallow the deduction of interest as claimed by the appellant?= As a matter of fact, from reading of Explanation 3C, in our opinion, the question as raised in the present appeals stands answered without further discussion. This provision was inserted for removal of doubts and it was declared that deduction of any sum, being interest payable under clause (d) of Section 43B of the Act, shall be allowed if such interest has been actually paid and any interest referred to in that clause, which has been converted into a loan or borrowing, shall not be deemed to have been actually paid. Thus, the doubt stands removed in view of Explanation 3C.

THE HONBLE SRI JUSTICE DILIP B.BHOSALE AND THE HONBLE SRI JUSTICE A.RAMALINGESWARA RAO            

I.T.T.A.Nos.289 of 2003

11-02-2015

Commissioner of Income Tax-II, Hyderabad. .... APPELLANT  
       
Pennar Profiles Limited, 1-8-303/69/3, S.P. Road,  Secunderabad....RESPONDENT  
       
COUNSEL FOR THE APPELLANT   :- Mr.S.Vivek Chandra Sekhar      

COUNSEL FOR RESPONDENT     :- Mr. Challa Gunaranjan      

<Gist:

>Head Note:

?Cases Referred:

1.(1998) 233 ITR 0493
2.(2010) 231 CTR (Karnataka) 90

THE HONBLE SRI JUSTICE DILIP B.BHOSALE      

AND

THE HONBLE SRI JUSTICE A.RAMALINGESWARA RAO            
       

I.T.T.A.Nos. 289 of 2003 and 6 of 2004


ORAL JUDGMENT: (per the Honble Sri Justice Dilip B.Bhosale)

        These appeals by the Revenue under Section 260A of the
Income Tax Act, 1961 (for short the Act), are preferred against the
common order, dated 24.01.2003, of the Income Tax Appellate
Tribunal, Hyderabad Bench A, passed in I.T.A.Nos.566/Hyd/98 and
439/Hyd/98.  By this order, the Tribunal disposed of two appeals,
one  filed by the assessee and other by the Revenue, against the
order, dated 14.05.1998, passed by the Commissioner of Income
Tax (Appeals) (for short CIT(A)).  The CIT (A) by that order, partly
allowed the appeal filed by the assessee.  The appeal before the CIT
(A) was against the assessment order, dated 26.03.1997, passed by
the Assessing Officer for the assessment year 1994-95 disallowing
the claim of the assessee, seeking deduction of interest liability, that
was converted/merged, by the financial institution, into a term loan
under Section 43B of the Act.

2.      The factual matrix to the extent it is relevant is that the
assessee is engaged in the business of manufacturing Alluminium
Extrusions.  They had filed returns of income, showing loss of
Rs.3,25,34,484/-, on 29.11.1994.  A notice under Section 143(2) of
the Act was issued to the assessee by the Assessing Officer on
06.11.1995. After granting an opportunity of being heard to the
assessees representative, the Assessing Officer completed the
assessment vide order, dated 26.03.1997.  It has come on record
that the assessee had debited the funded interest of Rs.85,42,788/-
in its profit and loss account. In addition thereto, in the statement of
computation of income, funded interest of Rs.1,18,16,471/-,
pertaining to the assessment years 1992-93 and 1993-94 was also
claimed as deduction.  Thus, the assessee had debited the funded
interest of Rs.2,03,59,250/- being the interest due to the financial
institutions relating to the assessment years 1992-93 and 1993-94
on account of availing of  loans from them. The said return was
processed under Section 143(1)(a) of the Act.  Ultimately, the
Assessing Officer disallowed the deduction by applying the proviso
to Section 43B of the Act. The assessee claimed that the interest
amount payable was converted into a principal amount/term loan
and, therefore, it deemed to have paid the interest as contemplated
by Section 43B of the Act and therefore, entitled for deduction.

3.      The only question raised and addressed, in these appeals, by
learned counsel for the parties is whether on the facts and in the
circumstances of the case, the Tribunal was justified in holding that
conversion of interest into a term loan can be taken as a deemed
payment for the purpose of Section 43B of the Act?

4.      Mr.S.Vivek Chandra Sekhar, learned counsel appearing for
the Revenue, at the outset, invited our attention to the provisions of
Section 43B of the Act and contended that under any circumstances,
in view of the  insertion of Explanation 3C to Section 43B, inserted
by the Finance Act, 2006 with retrospective effect from 01.04.1989,
unless the amount of interest has been actually paid, cannot be
allowed to be deducted as claimed by the assessee.  In other words,
he submitted that any sum payable as interest, referred to in
Clause(d) of Section 43B of the Act, which has been converted into
a loan or borrowing, cannot be allowed to be deducted or deemed to
have been actually paid.
5.        It would be relevant to reproduce the relevant portion of
Section 43B of the Act, which reads thus:

43B.Certain deductions to be only on actual payment.-
Notwithstanding anything contained in any other provision of this
Act, a deduction otherwise allowable under this Act in respect of-
(a) .
(b)..
(c)..
(d) any sum payable by the assessee as interest on any loan or
borrowing from any public financial institution or a State Financial
Corporation or a State Industrial Investment Corporation, in
accordance with the terms and conditions of the agreement
governing such loan or borrowing;
(e).
(f).
shall be allowed (irrespective of the previous year in which the
liability to pay such sum was incurred by the assessee according
to the method of accounting regularly employed by him) only in
computing the income referred to in section 28 of that previous
year in which such sum is actually paid by him:
Provided that nothing contained in this section shall apply in
relation to any sum which is actually paid by the assessee on or
before the due date applicable in his case for furnishing the return
of income under sub-section (1) of section 139 in respect of the
previous year in which the liability to pay such sum was incurred
as aforesaid and the evidence of such payment is furnished by the
assessee along with such return.
Explanation (1).  
Explanation (2).  
Explanation 3:  For the removal of doubts it is hereby declared that
where a deduction in respect of any sum referred to in clause (c)
or clause (d ) of this section is allowed in computing the income
referred to in Section 28 of the previous year (being a previous
year relevant to the assessment year commencing on the 1st day
of April, 1988, or any earlier assessment year) in which the liability
to pay such sum was incurred by the assessee, the assessee
shall not be entitled to any deduction under this section in respect
of such sum in computing the income of the previous year in which
the sum is actually paid by him.
Explanation 3A  
Explanation 3B  
Explanation 3C: For the removal of doubts, it is hereby declared
that a deduction of any sum, being interest payable under clause
(d) of this section, shall be allowed if such interest has been
actually paid and any interest referred to in that clause which has
been converted into a loan or borrowing shall not be deemed to
have been actually paid.
Explanation 3D  
Explanation 4.  
       
6.      We have perused the orders passed by the authorities below
and we find that the Tribunal, for dismissing the appeals filed by the
assessee and the Revenue, placed reliance upon the judgment of
this Court in Commissioner of Income Tax Vs. Mahindra Nissan
Allywin Limited , in short, holding that the assessee is entitled to
claim deduction of the interest liability to the financial institution
which had been converted into a term loan.

7.      Learned counsel appearing for the assessee placed reliance
upon the judgment of the Karnataka High Court in Vinir Engineering
Private Limited Vs. Deputy Commissioner of Income Tax  and
submitted that similar view, as taken by this Court in Mahindra
Nissans case, was taken in this judgment.  The Karnataka High
Court having regard to the facts that fell for consideration framed the
following question for consideration:
       Whether, on the facts and in the circumstances of the case,
the funded interest could be said to be non-payment of interest in the
relevant year to invoke the proviso to Section 43B of the Act to
disallow the deduction of interest as claimed by the appellant?

7.1     In that case, deduction sought, as claimed in the present case,
by the assessee, was disallowed by the Assessing Officer, applying
the proviso to Section 43B of the Act. The assessee, thereafter, had
filed an application under Section 154 of the Act explaining the
reasons for claiming deduction.  The application was, however,
rejected holding that re-schedule of interest payment by means of a
fresh loan cannot be treated as interest payment deductible under
Section 43B of the specific repayment schedule.  The Commissioner
upheld the order of the Assessing Officer.  The Tribunal held that
disallowance was proper and permissible under Section 143(1)(a) of
the Act and dismissed the appeal. Against that order, the assessee
had filed appeal under Section 260A of the Act before the Karnataka
High Court, wherein, the High Court while allowing the appeal filed
by the assessee in paragraph 13 observed thus:

        In view of what is stated above, we answer the substantial
questions of law raised in this appeal by holding that the Tribunal
was not justified in law in concluding that the funded interest could
be said to be non-payment of interest in the relevant year to
invoke the proviso to Section 43B of the Act to disallow the
deduction of interest as claimed by the appellant.  The Assessing
Officer was not justified in law to make a prima facie adjustment in
a proceeding under Section 143 (1)(a) of the Act by holding that
there was no deemed payment of interest in the relevant year
without appreciating the interest outstanding for the earlier years
1994-95 and 1995-96 had been funded by K.S.F.C. during the
relevant year by a fresh loan and that the proviso to Section 43B
of the Act was not applicable.               (emphasis supplied)

8.      In this backdrop, we have perused the provisions contained in
Section 43B of the Act, in particular, Explanation 3C thereof, which
was inserted by the Finance Act, 2006 with retrospective effect from
01.04.1989.  This provision was inserted in 2006 and hence, this
Court in Mahindra Nissans case, had no occasion to deal with the
case in the light of this provision.  Insofar as the Karnataka High
Court is concerned, though this provision was existing on the date of
judgment, it appears that it was not brought to the notice of learned
Judges and hence, the Division Bench proceeded to consider and
decide the appeal of the assessee without referring to Explanation
3C appended to Section 43B of the Act.

9.      As a matter of fact, from reading of Explanation 3C, in our
opinion, the question as raised in the present appeals stands
answered without further discussion. This provision was inserted for
removal of doubts and it was declared that deduction of any sum,
being interest payable under clause (d) of Section 43B of the Act,
shall be allowed if such interest has been actually paid and any
interest referred to in that clause, which has been converted into a
loan or borrowing, shall not be deemed to have been actually paid.
Thus, the doubt stands removed in view of Explanation 3C.  This
provision was considered by the Madhya Pradesh High Court in
Eicher Motors Limited Vs. Commissioner of Income Tax  to hold that
in view of the Explanation 3C appended to Section 43B with
retrospective effect from 01.04.1989, conversion of interest amount
into loan would not be deemed to be regarded as actually paid
amount within the meaning of Section 43B of the Act.
10.     It is not in dispute that the assessment years with which we
are concerned in the present appeals are covered by Explanation
3C, which was inserted by the Finance Act, 2006 with retrospective
effect from 01.04.1989.  In this view of the matter, the appeals filed
by the Revenue deserve to be allowed. Accordingly, we answer the
substantial question of law framed by us in favour of the Revenue
and against the assessee. However, there shall be no order as to
costs.

        Pending miscellaneous petitions, if any, also stand disposed
of.

____________________  
DILIP B.BHOSALE,J  
_________________________  
A.RAMALINGESWARA RAO,J      
Dt:11.02.2015 

Section 7 and 13(2) r/w 13 (1)(d) of Prevention of Corruption Act, 1988 (for short P.C Act) &Section 321 Cr.P.C - When once the Government have applied its mind and issued sanction, it cannot withdraw the sanction on a lame pretext of proceeding with department action against a charged public servant. the competent authority who issued sanction proceedings cannot exercise its power either under Section 19 of P.C. Act or under Section 21 of the Central General Clauses Act or Section 15 of the A.P. General Clauses Act to withdraw the sanction. I endorse the same view. Therefore, in the instant case the Government was not justified in withdrawing the sanction.-2015 Telangana &A.P. MSK LAW REPORT the prosecution case against the accused who is charged under Section 7 and 13(2) r/w 13 (1)(d) of Prevention of Corruption Act, 1988 (for short P.C Act) is that the complainant was a conductor in APSRTC, Nellore Depot and accused was the Sub-Inspector of Police, Women P.S, Nellore during relevant time and in respect of the complaint given by Swaroopa Raniwife of complainant, AO initially demanded Rs.2,000/- as bribe from the complainant for not taking action on the petition of his wife and on the request of the complainant he reduced the bribe amount to Rs.1,000/- and on 17.02.2006 at about 9:30 am at mechanic bunk situated opposite to Nippo Batteries Factory, Nellore, the accused was caught red-handed while accepting illegal gratification of Rs.1,000/- from the complainant and hence facing the charges for the offences stated supra. b) The trial Court framed charges and matter is coming up for trial. c) While-so, learned Public Prosecutor at that stage filed petition under Section 321 Cr.P.C submitting that the AO approached Government and made a representation to drop the criminal case and Government considered his representation and issued order in G.O.Ms.No.272/SC.A-3/2006-5 dt: 06.07.2007 (Home (SC.A) department) cancelling the sanction order earlier issued under G.O.Ms.No.272/SC.A3/2006-3 dated 22.09.2006 of Home (SC.A) department on the ground that it would meet the ends of justice if the AO were to face departmental action and in turn, D.G, ACB, A.P issued a memo vide Rc.No.38/RCT-NNL/2006 dated 01.10.2007 requesting the Spl.P.P, ACB to file petition under Section 321 Cr.P.C and therefore, he was filing the said petition. Learned Special Judge after thorough enquiry dismissed the petition on the following observations: In the withdrawal order the Government has not shown reasons as to why it came to conclusion to withdraw the criminal case against AO and to institute departmental action. It is not mentioned as to what material the Government have collected to conclude to withdraw the case and no such material is placed before the Court. Learned Spl.P.P simply filed a petition basing on the orders of the Government without applying his mind and without showing any grounds for withdrawal of the case. He has not shown any grounds which will further the ends of justice, public order and peace. Hence the revision.-2015 Telangana &A.P. MSK LAW REPORTS

Section 7 and 13(2) r/w 13 (1)(d) of
Prevention of Corruption Act, 1988 (for short P.C Act)  &Section 321 Cr.P.C - When once the Government have applied its   mind and issued sanction, it cannot withdraw the sanction on a lame pretext of proceeding with department action against a charged public servant. the competent authority who issued sanction proceedings cannot exercise its power either under Section 19 of P.C. Act or under Section 21 of the Central General Clauses Act or Section 15 of the A.P. General Clauses Act to withdraw the sanction. I endorse the same view. Therefore, in the instant case the Government was not justified in withdrawing the sanction.-2015 Telangana &A.P. MSK LAW REPORT
the prosecution case against the
accused who is charged under Section 7 and 13(2) r/w 13 (1)(d) of
Prevention of Corruption Act, 1988 (for short P.C Act) is that the
complainant was a conductor in APSRTC, Nellore Depot and accused was  
the Sub-Inspector of Police, Women P.S, Nellore during relevant time and
in respect of the complaint given by Swaroopa Raniwife of complainant,
AO initially demanded Rs.2,000/- as bribe from the complainant for not
taking action on the petition of his wife and on the request of the
complainant he reduced the bribe amount to Rs.1,000/- and on 17.02.2006 at
about 9:30 am at mechanic bunk situated opposite to Nippo Batteries
Factory, Nellore, the accused was caught red-handed while accepting illegal
gratification of Rs.1,000/- from the complainant and hence facing the
charges for the offences stated supra.
b)      The trial Court framed charges and matter is coming up for trial.
c)      While-so, learned Public Prosecutor at that stage filed petition under
Section 321 Cr.P.C submitting that the AO approached Government and
made a representation to drop the criminal case and Government considered
his representation and issued order in G.O.Ms.No.272/SC.A-3/2006-5 dt:
06.07.2007 (Home (SC.A) department) cancelling the sanction order earlier
issued under G.O.Ms.No.272/SC.A3/2006-3 dated 22.09.2006 of Home  
(SC.A) department on the ground that it would meet the ends of justice if the
AO were to face departmental action and in turn, D.G, ACB, A.P issued a
memo vide Rc.No.38/RCT-NNL/2006 dated 01.10.2007 requesting the  
Spl.P.P, ACB to file petition under Section 321 Cr.P.C and therefore, he was
filing the said petition. Learned Special Judge after thorough enquiry
dismissed the petition on the following observations:
         In the withdrawal order the Government has not shown reasons as to
why it came to conclusion to withdraw the criminal case against AO and to
institute departmental action. It is not mentioned as to what material the
Government have collected to conclude to withdraw the case and no such
material is placed before the Court. Learned Spl.P.P simply filed a petition
basing on the orders of the Government without applying his mind and
without showing any grounds for withdrawal of the case. He has not shown
any grounds which will further the ends of justice, public order and peace.
          Hence the revision.-2015 Telangana &A.P. MSK LAW REPORTS

Suit for Declaration and Cancellation of Registered sale deed as no actual consideration was passed - Trail Court dismissed the suits - Their Lordships held that a party cannot be permitted to plead that a consideration recited in a document is not the real consideration but more was paid, for the purpose of evading stamp duty, document was taken for a lesser amount, -hence sec.91 of Evidence Act not applies to the set of facts - Their Lordships further held that Tape Recorded Evidence - the time, place and accuracy of the recording, must be proved by competent witness besides identification of voices and only on such prima facie proof, the genuineness of cassette has to be dealt with. Here,D.W.4 who was examined to prove this Ex.B48 has not identified the voices of the individuals that were in Ex.B48- cassette and there is no prima facie proof of the time and accuracy of the recording and also the details of the instrument with which it was recorded. Considering these aspects, the trial Court observed that the appellant failed to prove the authenticity of this Ex.B48 and on that ground discarded it. - No Grounds - Appeal was dismissed - 2015 Telangana & A.P. msklawreports

 

According to appellant, he purchased suit property
from one P. Madhav Reddy through a registered sale deed 
dated 25-04-2002 and he was in possession and enjoyment  
of the said property. 
 Appellant had acquaintance with the
respondent since six years prior to the suit as he is in the
advertising field, whereas the respondent herein is a movie
artist.  
According to appellant, the respondent gained total
confidence of the appellant and his wife and made them to
believe that the differences between appellant and his wife
are due to the schedule property, which is not in
accordance with Vastu and convinced them that the 
schedule property should be sold. 
The appellant was not
interested to sell the property as it was purchased for his
personal benefit. 
 Respondent was also present at the time
of negotiations with the vendor of the appellant and he is
well aware of the fact that it was purchased for a sum of
Rs.12,00,000/- and the sale deed was made for 
Rs.87,000/- only. 
 According to appellant, there was an
agreement between himself and the respondent for sale of
the property, according to which, the respondent agreed to
pay Rs.12,00,000/- within one month from the date of
registration and due to the confidence on the respondent,
the appellant executed sale deed mentioning the sale
consideration as Rs.81,000/-, but the appellant has not
received a single pie from the respondent and as the
respondent did not pay the sale consideration as agreed,
the appellant executed a cancellation deed dated 11-09-
2000 under document No.5877/2002, but as he was   
advised that he should seek for cancellation of the sale deed
dated 24-06-2002 under document No.3815/2002, he filed 
O.S.No.588/2002. 
 It is also contended by appellant though
there was a recital in the sale deed as to delivery of
possession, no such delivery is effected and as the
respondent is contemplating to make a feasible entry on the
basis of sale deed, he filed the suit for injunction in
O.S.No.127/2003. 
 On the other hand, according to
respondent, the appellant approached him and offered to
sell the suit schedule property as the appellant was in need
of money for his business purpose and he paid full sale
consideration that was referred in the sale deed and the
appellant, after receiving the sale consideration, executed
sale deed dated 24-06-2002 before the District Registrar,
Medak at Sanga Reddy and delivered possession also and  
since then, he has been enjoying the same as absolute
owner without any interruption. 
According to respondent,
the appellant with a malafide intention gave a police
complaint to Banjara Hills Police contending that the sale
consideration was Rs.12,00,000/- and that the respondent
has not paid the said sum to the appellant and thereafter,
unilaterally executed cancellation deed on 11-09-2002
under Document No.5877/2002, therefore, he is 
constrained to seek a declaratory relief of cancellation of
document No.5877/2002 and necessary changes in the   
records of District Registrar, Medak, Sanga Reddy and for
permanent injunction as the appellant tried to interfere with
the peaceful possession and enjoyment of the schedule 
property.

.
the trial Court and appellate
Court were wrong in not considering the oral evidence
adduced on behalf of the appellant on the ground that such
evidence is prohibited under Section 92 of the Indian
Evidence Act. 
 But the purport of the above decisions is that
oral evidence is admissible to show that the document
between the parties was never intended to operate and
some other agreement not recorded in the document was  
entered into and when recitals of the document are
ambiguous surrounding circumstances, conduct of parties 
can be assessed from the oral evidence. 
The principle laid
down in these decisions is not in dispute, but they cannot
be applied to the case on hand for the simple reason that
oral evidence of D.Ws.3 & 5 was considered but not
accepted in view of the specific terms in the document.

Therefore, the contention of the appellant that the findings
of the trial Court and appellate Court have to be treated as
perverse cannot be accepted. 
I have verified findings of the
trial Court and appellate Court with reference to oral and
documentary evidence of both parties and on such
comparison, I am of the considered view that both the
Courts have correctly appreciated evidence and the findings
are based only on the basis of evidence and there is no
perversity while appreciating the evidence or giving findings
on the basis of such evidence. 
 On a scrutiny of the
material, I am of the view that findings of both the Courts
are based on sound reasoning and there is absolutely no
perversity in the findings of the Courts below. 
The trial
Court by considering decisions of this Court, wherein it was
held that a party cannot be permitted to plead that a
consideration recited in a document is not the real
consideration but more was paid, for the purpose of evading
stamp duty, document was taken for a lesser amount, 
discarded the contention of appellant and I am of the view
that trial Court was perfectly correct in doing so.

 The other contention of the appellant is that tape
recorder cassette-Ex.B48 was not considered by the Court 
below and both Courts failed in drawing adverse inference
with regard to this document.  
According to appellant, the
respondent participated in a shooting of Priyanka Tele
Serial at Chandra Rajeshwara Rao Old Age Home,   
Kondapur on 06-08-2002 and that he got the conversation
recorded in his car on that date. 
 Respondent herein denied
to have gone to Old Age Home for shooting of Priyanaka Tele
Serial on 06-08-2002 and also denied of any such
conversation that took place between himself and the
appellant in the car.  
From the record, it appears that
Ex.B48-audio cassette was played in the open Court at the
time of cross-examination of respondent and that the
respondent denied his voice in the cassette and contended
that his voice was mimicked.  
D.W.4 driver of the appellant
deposed as the appellant was not having sufficient proof
regarding the undertaking given by the respondent, the
appellant planned to record the voice of the respondent on
tape and accordingly in August, 2002, a mike was arranged
in the car for recording and on that day, the appellant and
respondent went to Old Age Home at Kondapur and both of  
them sat in the car and their conversation was recorded in
the car and that he had listen to the said tape, while
returning back. 
 From the evidence of this witness,
it is clear that he was not physically present when the
conversation took place in the car and that he only heard
the cassette.  
Though this Ex.B48 was very much available
in the Court, this was not played to D.W.4 during his
evidence to identify the voice. 
 Nowhere, D.W.4 stated that
this Ex.B48 contains the voice of respondent herein.
As seen from the record, an application was filed on behalf
of the appellant to send Ex.B48-cassette to an Expert for
identifying the voice and that application was dismissed by
the trial Court and this Court in the revision, modified that
order and directed the trial Court to send the cassette for
expert opinion provided the respondent herein gives his
sample voice for comparison voluntarily. 
 According to
material on record, the respondent did not give his voice on
the ground that the appellant has not complied the prima
facie requirement. 
 Now the contention of the Advocate for
appellant is since the respondent did not give his voice for
comparison, an adverse inference has to be drawn against
the respondent and the contents of Ex.B48-cassette are to
be accepted.  
The trial Court, by considering a decision of
Honble Supreme Court in Yusfufalli Esmail Nagree
wherein the Honble Supreme
Court observed that the time, place and accuracy of the
recording, must be proved by competent witness besides 
identification of voices and only on such prima facie proof,
the genuineness of cassette has to be dealt with.  
Here,
D.W.4 who was examined to prove this Ex.B48 has not  
identified the voices of the individuals that were in Ex.B48-
cassette and there is no prima facie proof of the time and
accuracy of the recording and also the details of the
instrument with which it was recorded.  Considering these
aspects, the trial Court observed that the appellant failed to
prove the authenticity of this Ex.B48 and on that ground
discarded it.  
I do not find any wrong in the findings of the
trial Court or appellate Court in respect of Ex.B48 and both
the Courts have correctly appreciated evidence on record.

As rightly pointed out by Advocate for respondents, there
are absolutely no grounds to interfere with the concurrent
findings.  
So on a scrutiny of the entire material, I am of the
view that there are no grounds to remit back the case for
fresh consideration, therefore, the request of the appellants
counsel is negatived.- 2015 Telangana & A.P. msklawreports