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NDPS – Vehicle – Conviction set aside

2015 STPL(Web) 335 SC (SC)(DB) - Judgment Date: 21-4-2015 - Acquittal

MAKHAN SINGH Vs. STATE OF HARYANA

Narcotic Drugs and Psychotropic Substances Act, 1985, Section 15 and 50 – NDPS – Conviction set aside – Search and Seizure – Recovery of three bags of poppy husk weighing 120 Kgs. – Vehicle driven by appellant searched and the contraband was seized from the vehicle and not from person of appellant, compliance with Section 50 of the Act was not required – Prosecution ought to have endeavoured to prove whether the appellant had some nexus with the seized vehicle – Prosecution has not adduced any evidence either by examining the neighbours or others to bring home the point that the appellant was the owner or possessor of the vehicle – In the absence of independent evidence connecting the appellant with the vehicle, mere compliance with Section 50 of the NDPS Act by itself would not be sufficient to establish the guilt of the appellant – When the independent witnesses PW1 and DW2 have not supported the prosecution case and the recovery of the contraband has not been satisfactorily proved, the conviction of the appellant under Section 15 of the NDPS Act cannot be sustained.

Industrial Dispute – Regularization

2015 STPL(Web) 334 SC (SC)(DB) - Judgment Date: 17-4-2015 - Regularization directed

ONGC LTD. Vs. PETROLEUM COAL LABOUR UNION & ORS.

Certified Standing Orders for Contingent Employees of the Oil and Natural Gas Commission, Clause 2 – Industrial Disputes Act, 1947, Section 10(1) – Reference – Regularization – Clause 2(ii) of the Certified Standing Orders states that a temporary workman who has put in not less than 240 days of attendance in any calendar period of 12 consecutive months is to be considered for regularization – Concerned workmen have clearly completed more than 240 days of services subsequent to the memorandum of appointment issued by the Corporation in the year 1988 in a period of twelve calendar months, therefore, they are entitled for regularization of their services into permanent posts of the Corporation as per the Act as well as the Certified Standing Orders of the Corporation.

Hindu Succession – Female Hindu – Mutation Entries

2015 STPL(Web) 333 SC (SC)(DB) - Judgment Date: 17-4-2015 - No relinquish or release of right

H. LAKSHMAIAH REDDY & ORS. Vs. L. VENKATESH REDDY

Hindu Succession Act, 1956, Section 15 – Succession in the Case of Female Hindu – Mutation Entries – ‘G’ first wife of 1st defendant and the plaintiff was their only son – Suit property was purchased by ‘G’ and it stood in her name in revenue record – Plaintiff was born on 1.10.1965 and ‘G’ died on 20.1.1966 – As per Section 15 of the Act, 1956 the husband and the son of deceased ‘G’ namely 1st defendant and the plaintiff, being class-I heirs succeeded to the suit property – Suit property was changed to the name of plaintiff from his mother on 9.1.1990 – Endorsement therein made by the Tahsildar reveals that the 1st defendant accepted the mutation of entry in the name of the plaintiff – Mutation entries do not convey or extinguish any title and those entries are relevant only for the purpose of collection of land revenue – High Court erred in concluding that the 1st defendant by his conduct had acquiesced and divested himself of title of his half share in suit property – Said erroneous conclusion liable to be set aside – Judgment and decree passed by the lower appellate Court restored.

Dowry Death – Omnibus allegation against all family members

2015 STPL(Web) 332 SC (SC)(DB) - Judgment Date: 17-4-2015 - Acquittal of Sisters/Brothers in laws

MONJU ROY & ORS. Vs. STATE OF WEST BENGAL

Penal Code, 1860, Sections 498A, 306 and 304B – Dowry Death – Appeal against Conviction – Allegation is that all the five family members i.e. husband of the deceased, mother-in-law, two sisters-in-law and one brother in law of the deceased raised a demand of Rs.5000/- – Further stated that all the family members harassed her but no individual role in harassment specified –View taken by the courts below that the deceased was subjected to harassment on account of non-fulfillment of dowry demand upheld – However merit found in the submission that possibility of naming all the family members by way of exaggeration is not ruled out – Omnibus allegation against all family members particularly against brothers and sisters and other relatives do not stand on same footing as husband and parents – Appellants’ being two sister-in-law and brother-in-law of the deceased their having been named by way of exaggeration cannot be ruled out – Appellants given benefit of doubt and their conviction and sentence under Section 304B IPC liable to be set aside without interfering with conviction and sentence under other heads.

Customs – Constitutional validity of provision

2015 STPL(Web) 331 SC (SC)(DB) - Judgment Date: 16-4-2015 - Provisions quashed

WIPRO LTD. Vs. ASSISTANT COLLECTOR OF CUSTOMS & ORS.

Constitution of India, Article 14 and Article 19(1)(g) – Customs Act, 1962, Section 14(1) and Section 14(1-A) – Customs Valuation (Determination of Price of Imported Goods) Rules, 1988, Proviso (II-i) of Rule 9(2) – Constitutional validity of proviso(II-i) of Rule 9(2) – Challenge as to – Held that this proviso, introduces fiction as far as addition of cost of loading, unloading and handling charges is concerned even in those cases where actual cost paid on such an account is available and ascertainable – Obviously, it is contrary to the provisions of Section 14 and would clearly be ultra vires this provision -When the actual charges paid are available and ascertainable, introducing a fiction for arriving at the purported cost of loading, unloading and handling charges is clearly arbitrary with no nexus with the objectives sought to be achieved – On the contrary, it goes against the objective behind Section 14 namely to accept the actual cost paid or payable and even in the absence thereof to arrive at the cost which is most proximate to the actual cost – Addition of 1% of free on board value is thus, in the circumstance, clearly arbitrary and irrational and would be violative of Article 14 of the Constitution – It has to be read down to mean that this clause would apply only when actual charges referred to in Clause (b) are not ascertainable.

Arbitration – Appointment of arbitrator

2015 STPL(Web) 330 SC (SC)(DB) - Judgment Date: 16-4-2015 - Arbitrator appointed

ASHAPURA MINE-CHEM LTD. Vs. GUJARAT MINERAL DEVELOPMENT CORPORATION

Arbitration and Conciliation Act, 1996, Section 11(6) – Appointment of Arbitrator – Memorandum of Understanding proposed to constitute a joint venture – Board of Directors of the Respondent passed a Resolution on 29.10.2007 which expressed its approval to the MoU, subject, however, to modification of the conditions – Both parties were at variance with reference to the various terms and conditions contained in the MoU – Consequently there was every right in either of the parties to seek for an amicable settlement in the first instance as specified in Clause 26 of the MoU – Clause 27 held to be a valid arbitration agreement contained in the MoU and the appellant was fully entitled to invoke the said agreement and seek for a reference to the Arbitrator – Impugned order passed by ld. Single Judge liable to be set aside – Since the respondent has expressed its disinclination to agree to express its concurrence and thereby the parties failed to appoint an Arbitrator under the agreed procedure, it is necessary for the Court to appoint an Arbitrator – A former Chief Justice of Patna High Court and former Judge of Gujarat High Court appointed as the sole Arbitrator to adjudicate the disputes that have arisen between the parties.

Corruption – Presumption

2015 STPL(Web) 329 SC (SC)(DB) - Judgment Date: 13-4-2015 - Conviction

C. CHANDRASEKARAIAH Vs. STATE OF KARNATAKA

Prevention of Corruption Act, 1988, Section 7, 13(1)(d) r/w 13(2) and 20 – Appeal against Conviction – Illegal Gratification – Presumption – Though there is variation in their version as regards the actual words uttered by the appellant, both PWs 1 and 3 are consistent that such demand was made – Both are again consistent that money was made over by PW-3 complainant which was received in right hand by the appellant, that the money was kept by the appellant in the hip pocket of the trouser and that the right hand of the appellant upon being dipped in the solution turned pink, whereas his left hand did not -As regards other features of the matter i.e. after the raiding party had entered the Police Station, they also stand corroborated by the other witnesses – Immediate explanation offered by the appellant was that the money was thrust into his pocket but this was given up and the appellant remained silent – In the absence of any evidence offered by the appellant to explain the circumstances, the presumption under Section 20 of the Act was not in any way rebutted and the prosecution case stood completely established.

Quashing of Criminal Proceedings – Dispute of Civil Nature

2015 STPL(Web) 328 SC (SC)(DB) - Judgment Date: 13-4-2015 - Not quashed

GANGA DHAR KALITA Vs. STATE OF ASSAM AND OTHERS

Criminal Procedure Code, 1973, Section 482 – Quashing of Criminal Proceedings – Dispute of Civil Nature – One of the persons said to have executed the power of attorney was minor, and another was away from India – Held that even if the civil suit was instituted by the complainant, the High Court committed no error of law in declining to interfere with the criminal proceedings initiated against the appellant in the present case.

NDPS – Possession

2015 STPL(Web) 327 SC (SC)(DB) - Judgment Date: 17-4-2015 - Conviction

MOHAN LAL Vs. STATE OF RAJASTHAN

Narcotic Drugs and Psychotropic Substances Act, 1985, Sections 18 – Opium Act, 1878, Section 9 – NDPS – Possession of Contraband Substance – Theft of contraband substance and lodging of FIR was prior to coming into force of the NDPS Act – Submission that the recovery of opium was done on 16.1.1986 though after coming into force of NDPS Act, pursuant to the disclosure statement made by the accused-appellant who was already under arrest in a different matter and under such circumstances, the appellant could not have been convicted under Section 18 of the NDPS Act, but should have been convicted under Section 9 of the Opium Act repelled – Held that on the date of recovery, he is in possession of the contraband article and possession itself is an offence under NDPS Act – In such a situation, the accused-appellant cannot take the plea that he had committed an offence under Section 9 of the Opium Act and not under Section 18 of the NDPS Act.

Discharge – Second Complaint

2015 STPL(Web) 326 SC (SC)(DB) - Judgment Date: 9-4-2015 - Second Complaint Maintainable

RAVINDER KAUR Vs. ANIL KUMAR

Criminal Procedure Code, 1973, Section 300 – Discharge – Second Complaint – In first complaint for offence u/s 376 IPC respondent was discharged – Second complaint on the same facts and incident – Held that in view of explanation to Section 300 Cr.P.C. proceedings in the second complaint would not be barred, because no trial had been conducted against the respondent, in furtherance of the first complaint – Having so concluded, it emerges that it is open to the appellant, to press the accusations levelled by her, through her second complaint.

Practice and Procedure

2015 STPL(Web) 325 SC (SC)(DB) - Judgment Date: 16-4-2015 - Court to refrain from addressing issues questioned in Criminal Proceedings

CONTROL PRINT LIMITED & ANR. Vs. NARCOTICS CONTROL BUREAU & ORS.

Narcotic Drugs and Psychotropic Substances (Regulation of Controlled Substances) Order, 2013, Clause 11 – Narcotic Drugs and Psychotropic Substances Act, 1985, Section 36A(1)(d), 63, 25A and 38 – Methyl Ethyl Ketone – Import without NOC – Goods were seized at the instance of the Narcotics Commissioner – A FIR in respect of the import made by the petitioners without grant of the NOC had been lodged and was pending – Learned Special Judge has taken cognizance of the offence alleged and has issued process – By the impugned order High Court dismissed the writ petition filed by appellant on the ground that the petitioner, though aware of the Notification dated 26.03.2013 promulgating the Regulations in question, had imported the goods into India without the requisite No – Additional ground on which the High Court thought it proper to reject the writ petition was that a FIR has been filed and under Section 63 of the Act, 1985 it is the criminal court which should be moved for release of the goods seized under the Act – Issues raised by the petitioners are not merely related but are directly in question in the criminal proceeding pending in respect of the same subject matter – Court must not answer any of the questions as regards Clause 11 of the Order 2013, particularly, in the absence of any challenge to the legality and validity of the criminal proceeding before the Court which can arise only out of an order of the forum competent in law to hear and consider such a challenge – Held that it would be appropriate for the Court refrain from addressing any of the issues raised by and on behalf of the rival parties and instead leave the petitioners with the remedy of taking such appropriate steps in the criminal proceeding, including release of the goods pending trial, as it may be advised.

Consumer – Insurance by Banker

2015 STPL(Web) 324 SC (SC)(DB) - Judgment Date: 16-4-2015 - Complaint dismissed

CENTRAL BANK OF INDIA Vs. JAGBIR SINGH

Consumer Protection Act, 1986, Section 2(1)(g) and 14(1)(d) – Motor Vehicles Act, 1988, Section 146, 196 – Financed Vehicle – Insurance of Vehicle – Liability of Creditor Bank – Held that the liability of such bank to get the vehicle insured is only till the vehicle comes out on the road – Initially the financed tractor was go insured but subsequently it was no got insured by respondent and the same met with an accident and MACT awarded compensation against respondent – Creditor bank is not liable to get renewed the insurance policy on behalf of the owner of the vehicle from time to time – Order passed by the authorities under Act, 1986 holding the appellant-creditor Bank to pay compensation arising out accident liable to be set aside.

Sentence – Hurt

2015 STPL(Web) 323 SC (SC)(DB) - Judgment Date: 16-4-2015 - Sentence reduced. Compensation allowed

VINAY & ORS. Vs. STATE OF KARNATAKA & ANR.

Penal Code, 1860, Section 326/34, 427 – Criminal Procedure Code, 1973, Section 357(1) – Reduction of Sentence – Compensation – Appellants and the complainant-PW-1 are the real brothers and are children of PW-8 – Complainant party went to the house of the accused for removal of Almirah and certain personal belongings – There was animosity between two factions which led to attack and injuries on both sides – Nature of injuries on the person of complainant and the complainant party and the accused party suggested that both parties attacked each other and the appellants seem to have exceeded the right of private defence, if any – After the occurrence, more than thirteen years have passed, the complainant party and the accused are entangled in litigation – Considering the totality of facts and circumstances of the case and the relationship between the parties, interest of justice would be met by reducing the sentence and imposing fine – Conviction of the appellants under Section 326 IPC read with Section 34 IPC and Section 427 IPC read with Section 34 IPC confirmed – Sentence of imprisonment of three months imposed on them reduced to the period already undergone by each of them – Additionally, the fine of Rs.25,000/- is imposed on each of the appellants-accused and in default to undergo sentence of imprisonment of three months – Out of the fine amount to be deposited by the appellants-accused, the injured witnesses PWs 1, 3, 4 and 5 who sustained grievous injuries shall be paid compensation of Rs.17,500/- each and PW 2 who suffered simple injuries shall be paid compensation of Rs. 5,000/- – With the above modification, the appeal is allowed in part.

Murder – Kidnapping

2015 STPL(Web) 322 SC (SC)(DB) - Judgment Date: 16-4-2015 - Acquittal/Conviction

ASHWANI KUMAR @ ASHU & ANR. Vs. STATE OF PUNJAB

Penal Code, 1860, Sections 364/302/307 read with Section 120B – Kidnapping – Murder – As regards appellant ‘D’ all that the prosecution has produced is the record of telephonic conversations – No doubt that there have been communications with other three accused and the number from Canada but such communications are from a landline number which stands in the name of the brother of ‘D’ – There is no evidence on record that the said landline number was under the exclusive control of ‘D’ – Given the fact that his daughter is married with the son of ‘S’ from Canada, the conversations with the number in Canada are explainable – It is true that suspicion against ‘D’ was expressly stated in the first statement of PW-15 itself – However, apart from telephonic conversations nothing has been placed on record by the prosecution – Benefit of doubt liable to be given to ‘D’ he liable to be acquitted of the charges leveled against him.

Industrial Dispute – Retrenchment

2015 STPL(Web) 321 SC (SC)(DB) - Judgment Date: 16-4-2015 - Reinstated with 25% back wages

GAURI SHANKER Vs. STATE OF RAJASTHAN

Constitution of India, Articles 226/227 – Industrial Disputes Act, 1947, Section 2(oo), 25F, 25H and 25H – Retrenchment – Reinstatement – Back Wages – Judicial review – Compensation in lieu of reinstatement – Labour Court recording valid and cogent reasons in answer to the points of dispute holding that the workman has worked from 1.1.1987 to 1.4.1992 and that non-compliance of the mandatory requirements under Sections 25F, 25G and 25H of the Act by the respondent-Department rendered its action of termination of the services of the workman as void ab initio in law – High Court erroneously awarded a compensation of Rs.1,50,000/- in lieu of reinstatement – Learned single Judge and the Division Bench under their supervisory jurisdiction should not have modified the award by awarding compensation in lieu of reinstatement which is contrary to the well settled principles of law laid down in catena of cases by the Apex Court , the same are liable to be set aside and the award of the Labour Court is restored in so far as the order of reinstatement is concerned – Respondent-Department further directed to reinstate the workman in his post and pay 25% back-wages from the date of termination till the date of award passed by the Labour Court and full salary from date of award passed by the Labour Court till the date of his reinstatement by calculating his wages/salary on the basis of periodical revision of the same.

Quashing of Complaint – Complainant not authorize

2015 STPL(Web) 320 SC (SC)(DB) - Judgment Date: 9-4-2015 - Complaint quashed

P. PRAMILA AND OTHERS Vs. STATE OF KARNATAKA AND ANOTHER

Air (Prevention and Control of Pollution) Act, 1981, Section 43, 22 and 37 – Quashing of Complaint – Complaint – Cognizance of Complaint – Jurisdiction – Principle of ‘delegatus not potest delegare’ – As per Section 43 of the Air Act Courts would take cognizance of complaints filed by the Board, or any officer authorised by the Board, in that behalf – Notification/resolution dated 29.3.1989 indicates, that the officer authorised was the Chairman of the Board – Either the Board or the Chairman of the Board could have filed the complaints in terms of the mandate contained in Section 43(1) of the Air Act – Under the principle of ‘delegatus not potest delegare’, the delegatee (the Chairman of the Board) could not have further delegated the authority vested in him to any other authority, for taking cognizance of offences under the Air Act – Complaint was filed, and the proceedings were initiated before the Judicial Magistrate, First Class-II, by the Regional Officer(Deputy Environmental Officer) in his capacity as a complainant who had no jurisdiction to prefer such complaints – Afore- stated complaints dated 28.04.2006 liable to be set aside, on the instant technical ground itself – Since the petitions filed by the appellants, under Section 482 Cr.P.C., are being accepted merely on a technical ground, the competent authority, namely, the Board (or the Chairman of the Board) directed to re-initiate the above proceedings, in consonance with the provisions of Section 43(1) of the Air Act.

Murder – offence modified

2015 STPL(Web) 319 SC (SC)(DB) - Judgment Date: 16-4-2015 - Conviction for Culpable Homicide

BIVASH CHANDRA DEBNATH @ BIVASH D & OTHERS Vs. STATE OF WEST BENGAL

Penal Code, 1860, Exception 4 to Section 300 – Nature of Offence – There was a sudden fight between the appellants and the deceased who was accompanied by PW-1, PW-2 , PW-3 and PW-4 – Further considering that there was no premeditation on the part of the appellants to commit the murder, it is a fit case to hold that the offence committed by the appellants is not punishable under Section 302 IPC, but under Section 304 Part I IPC – Conviction and sentence recorded by the courts below under Section 302 read with Section 149 IPC liable to be set aside – Instead, all the three appellants convicted under Section 304 Part I read with Section 34 IPC, and each one of them is sentenced to rigorous imprisonment for a period of seven years.

Specific Performance – Bona Fide Purchaser

2015 STPL(Web) 318 SC (SC)(DB) - Judgment Date: 7-4-2015 - Suit dismissed

PADMAKUMARI & ORS. Vs. DASAYYAN & ORS.

Specific Relief Act, 1963, Section 19(b) – Specific Performance – Bona Fide Purchaser – Non-compliance of the contract regarding payment of balance consideration to defendant Nos. 1 to 11 on the part of the plaintiff within nine months – Agreement of sale with plaintiff is not registered, as is evidenced from the encumbrance certificate obtained by defendant Nos. 12 to 15 before they entered into an agreement (Exhibit B-1) – Both the Courts below have erroneously recorded an erroneous finding on the non-existent fact holding that the agreement of sale in favour of the plaintiff is a registered document which, in fact, is not true – Defendant Nos. 12 to 15 before entering into the agreement with defendant Nos. 1 to 11 have made proper verification from the competent authority to purchase the part of the suit schedule property and got the agreement of sale (Exhibit B-1) executed in their favour, from defendant Nos. 1 to 11 and thereafter, they got the sale deed registered by paying sale consideration amount, therefore, the reliance placed upon Section 19(b) of the Act as they being the bona fide purchasers, the specific performance of contract cannot be enforced against the transferees – Defendant Nos. 12 to 15 being the transferee as they have purchased the suit schedule property for value and have paid the money in good faith and without notice of the original contract – Both the Courts below have omitted to consider this important piece of pleadings as also the material evidence on record thereby the concurrent finding recorded on the contentious issues has been rendered erroneous in law and is liable to be set aside – Impugned judgments and decrees of the High Court and the trial court liable to be set aside and the suit dismissed.

Special Leave Petition – Supervening Circumstances

2015 STPL(Web) 317 SC (SC)(DB) - Judgment Date: 6-4-2015 - Appeal does not survive

RISHIROOP RUBBER (INTERNATIONAL) LTD. Vs. STATE OF GUJARAT

Constitution of India, Article 136 – Special Leave Petition – Supervening Circumstances – In pursuance of order passed by the Apex Court on 1st December, 2014, order dated 23rd March, 2015, passed by the Presiding Officer of Industrial Tribunal – Appeal does no survive – Impugned order of the High Court liable to be set aside – Liberty given to the respondent to challenge the order of the Tribunal.

Customs – Exemption

2015 STPL(Web) 316 SC (SC)(DB) - Judgment Date: 15-4-2015 - Exemption not granted

IVRCL INFRASTRUCTURE & PROJECTS LTD. Vs. COMMISSIONER OF CUSTOMS, CHENNAI

Customs Act, 1962, Section 25(1), 108 – Customs Tariff Act, Rule 2(a) of the general rules for the interpretation of the schedule to the Act – Notification dated 1.3.2001 – Exemption from customs duty and additional duty – Hot mix plant – Held that hot mix plant of the type mentioned alone is exempt from payment of customs duty – What is meant is that such plant in its entirety must be imported albeit in an unassembled form – Judged by this test, it is clear that the concurrent findings of fact of the Commissioner and the CESTAT requires no interference inasmuch as both authorities have held that a complete plant in an unassembled form has not in fact been imported – Further, both authorities have relied upon statements made by none other than the Vice President of the Appellant who after retracting a statement made on 3.1.2002 has made a subsequent statement on 21.2.2002 admitting that the imported goods were only components and had not attained the essential characteristics of a plant – Statements made to an Officer of Customs are admissible in evidence under Section 108 of the Act, 1962 – Both the oral evidence and the documentary evidence ultimately lead to the same conclusion: namely, that what was imported was not a hot mix plant that was complete in itself — Appeal liable to be dismissed with costs of Rs. 1,00,000/-.

MCOCA – Bail

2015 STPL(Web) 315 SC (SC)(DB) - Judgment Date: 15-4-2015 - Special Court to consider bail

PRASAD SHRIKANT PUROHIT Vs. STATE OF MAHARASHTRA & ANR.

Maharashtra Control of Organized Crime Act, 1999, Section 2(1)(d),(e) and (f), 3(1)(i), 3(2), 3(4), 11, 21(4)(b) – Invocation of MCOCA – Bail – Held that having regard to the absence of any material as on date to disclose any nexus with the accused of an ‘organized crime syndicate’ or with the offence in the nature of an ‘organized crime’, in ‘P’ and ‘J’ as of now it can be stated that in respect of appellants other than A-7 i.e. appellant in Criminal Appeal No.1971/2010, their application for bail can be considered by the Special Court.

Public Servant – Sanction for Prosecution

2015 STPL(Web) 314 SC (SC)(DB) - Judgment Date: 13-4-2015 - No sanction required for cheating, fabrication of records or misappropriation

INSPECTOR OF POLICE AND ANOTHER Vs. BATTENAPATLA VENKATA RATNAM AND ANOTHER

Criminal Procedure Code, 1973, Section 197 – Penal Code, 1860, Sections 420, 468, 477A, 120B read with 109 – Public Servant – Sanction for Prosecution – Whether sanction under Section 197 ‘CrPC’ is required to initiate criminal proceedings in respect of offences under Sections 420, 468, 477A, 120B read with 109 IPC? – Held that alleged indulgence of the officers in cheating, fabrication of records or misappropriation cannot be said to be in discharge of their official duty – Their official duty is not to fabricate records or permit evasion of payment of duty and cause loss to the Revenue – Learned Magistrate has correctly taken the view that if at all the said view of sanction is to be considered, it could be done at the stage of trial only – Impugned orders passed by High Court quashing proceedings on the sole ground that there was no sanction under Section 197 CrPC liable to be set aside.

Public Prosecutor – Special Public Prosecutor – Authority to Appear

2015 STPL(Web) 313 SC (SC)(DB) - Judgment Date: 15-4-2015 - Dissenting Judgment

K. ANBAZHAGAN Vs. STATE OF KARNATAKA AND ORS.

Criminal Procedure Code, 1973, Sections 24(8) and 301(1) – Public Prosecutor – Special Public Prosecutor – Authority to Appear – At appellate sage before High Court – Whether the fifth respondent-Mr.’GBS’ appointed as Special Public Prosecutor for conducting the disproportionate assets case in Special C.C.No. 208/2004 (in the case of Kumari ‘J’ and others) can continue to appear in the criminal appeals filed by the accused against the verdict of conviction and whether appearance of fifth respondent in the appeals is without authority and illegal? – Held that Mr. ‘GBS’ appointed as Special Public Prosecutor (SPP) under Section 24(8) Cr.P.C., by virtue of Section 301(1) Cr. P.C., has authority to continue to appear as Public Prosecutor in the criminal appeals filed by the accused in the High Court of Karnataka and the order of the High Court in Writ Appeal confirmed and the appeal is dismissed.

Customs – Technical Services Fee

2015 STPL(Web) 312 SC (SC)(DB) - Judgment Date: 13-4-2015 - Technical Services Fee not to be added in value of P & M

COMMISSIONER OF CUSTOMS, AHMEDABAD Vs. ESSAR STEEL LTD.

Customs Act, 1962, Section 14 – Customs Valuation (Determination of Price of Imported Goods) Rules of 1988, Rule 2(f), 4(1), 9(1)(e) – Whether the payment made for the technical services agreement is to be added to the value of the plant that is imported inasmuch as such payment has been made as a condition of sale of the imported plant – Technical services to be provided by Met Chem Canada Inc. is basically to coordinate and advise the respondent so that the respondent can successfully set up, commission and operate the plant in India and is to take place post-importation in order that the plant be set up and commissioned in India – Ownership of patents, know-how, copyright and other intellectual property rights shall remain vested in the technical consultant and none of these will be transferred to the respondent -Respondent becomes owner of that portion of documents, drawings, plans and specifications originally created by the technical consultant pursuant to the agreement all of which are post-importation of the plant into India – Liquidated damages are only payable for delay in commissioning the plant and for failure to achieve the stipulated performance, both of which are post-importation activities – A conjoint reading of the technical services agreement and the purchase order do not lead to the conclusion that the technical services agreement is in any way a pre- condition for the sale of the plant itself – On the contrary the technical services agreement read as a whole is really only to successfully set up, commission and operate the plant after it has been imported into India – Clause 9(1)(e) would not be attracted on the facts of this case -Consideration for the technical services to be provided by Met Chem Canada Inc. cannot be added to the value of the equipment imported to set up the plant in India – Appeal of revenue liable to be dismissed.

Acid Attack

2015 STPL(Web) 311 SC (SC)(DB) - Judgment Date: 10-4-2015 - Directions issued

LAXMI Vs UNION OF INDIA & ORS.

Criminal Procedure Code, 1973, Section 357-C – Acid Attack – Victim Compensation Scheme – Schemes Framed by all States and Union Territories – In some State minimum compensation of Rs. 3,00,000 has not been incorporated and lesser compensation provided – Directed that earlier direction issued for minimum compensation of Rs. 3,00,000/- should be complied with – Member Secretary of the State Legal Services Authority directed to give it wide and adequate publicity in the State/Union Territory so that each acid attack victim in the States/Union Territories can take the benefit of the Victim Compensation Scheme – Direction given for proper treatment, aftercare and rehabilitation of the victims of acid attack.

Disqualification of MLA – Business with govt.

2015 STPL(Web) 310 SC (SC)(DB) - Judgment Date: 9-4-2015 - Law declared on various points

ELECTION COMMISSION OF INDIA Vs. BAJRANG BAHADUR SINGH & OTHERS

Representation of the People Act, 1951, Section 9A – Member of Legislative Assembly – Culprit Contract – Disqualification – Challenge as to – Contention that a disqualification for the membership of the Legislature on the ground of a ‘subsisting contract’ with the government cannot be an everlasting disqualification and that the moment the contractual relationship comes to an end, the disqualification also ceases repelled – Held that purpose of Section 9A is to maintain the purity of the legislature and to avoid conflict of personal interest and duty of the legislators – It would be strange logic that persons with a subsisting contract with the government are perceived to be undesirable to become members of the legislature as there is a likelihood of conflict between their duty as legislators, if elected and their personal interest as contractors, but legislators can enter into contracts with the government with impunity – Transferred case filed before the High Court challenging disqualification a liable to be dismissed.

Film Industry – Gender Inequality

2015 STPL(Web) 309 SC (SC)(DB) - Judgment Date: 13-4-2015 - Petitioner to fill up bond

CHARU KHURANA & ORS. Vs. UNION OF INDIA & ORS.

Film Industry – Gender Inequality – 5th respondent, Cine Costume Make-up Artists and Hair Dressers Association not allowing qualified make-up artists become makeup artists as members of the Association – Directed that the petitioners shall fill up the Personal Bond indicating Rs.1000/- instead of Rs.25,000/- and deposit the fees as has been directed by the Apex Court on the earlier occasion – Bond that is sought to be signed by the petitioners, shall not contain that they shall pay Rs.1,00,000/- as membership fees.

Arbitration – Appointment of Arbitrator

2015 STPL(Web) 308 SC (SC)(DB) - Judgment Date: 10-4-2015 - No appointment of arbitrator

PAYAL CHAWLA SINGH Vs. COCA-COLA CO. & ANR.

Arbitration and Conciliation Act, 1996, Section 11(6) – Arbitration – Appointment of Arbitrator – There is no binding arbitration agreement between the petitioner and her employer – Attempt of the petitioner to bring in the provision for arbitration contained in the “solutions programme” as a part of the terms of her employment with the respondent No.2 remains wholly unsubstantiated – Even on a hypothetical application of the “solutions programme” the provisions contained therein with regard to conduct of arbitration proceedings in terms with the Federal Arbitration Act and the National Rules for resolution of employment disputes of the American Arbitration Association would specifically exclude the provisions of Part I including Section 11(6) of the 1996 Act – Besides, under Section 7 of the 1996 Act the parties to an arbitration agreement must agree to submit their disputes to arbitration – What is contemplated under the “solutions programme” is a mere possibility of the employee seeking arbitration as opposed to an obligation to refer all disputes to arbitration – Same is not to be found in the “solutions programme” which leaves the employee with an option to accept or reject the decision of the arbitrator – Petitioner held not entitled to invoke this Court’s jurisdiction under Section 11(6) of the 1996 Act.

Lokayukta – Recommendations of

2015 STPL(Web) 307 SC (SC)(DB) - Judgment Date: 10-4-2015 - Recommendations upheld

RANG NATH MISHRA Vs. STATE OF UTTAR PRADESH & ORS.

U.P. Lokayukta & Up-Lokayuktas Act, 1975, Section 7, 8, 9 and 10 – Uttar Pradesh Lokayukta and Up-Lokayukta Complaint Rules, 1977, Rule 5 – Lokayukta – Recommendations of – Challenge as to – Reception/acceptance of a subsequent affidavit of the complainant in support of a complaint filed earlier contemplated by Rule 5 of the Rules – Do not see why any fault can be found in the action of the Lokayukta – Lokayukta decided to proceed further in the matter and had issued communications to the appellant asking for his reply and documents in defence which were adequately responded to by the appellant on several dates – Appellant cannot be justified in raising the issue of defect of procedure before the High Court and before the Apex Court – Capitulation of the relevant dates and events leave no room for doubt that all requirements under the Act have been complied with in the instant case – Section 10(3) of the Act leaves to the Lokayukta the discretion to adopt such procedure as may be considered appropriate in the given facts of the case – No prejudice also has been caused to the appellant who had taken part in the proceedings at every stage – Refusal to grant further time to the appellant, an issue over which some grievance has been raised, is a matter of discretion vested in the Lokayukta and any decision thereon either way cannot be a legitimate basis for interference.

Murder – Circumstantial evidence

2015 STPL(Web) 306 SC (SC)(DB) - Judgment Date: 10-4-2015 - Conviction

RAJA @ RAJINDER Vs. STATE OF HARYANA

Penal Code, 1860, Section 302, 201 and 34 – Evidence Act, 1872, Section 27 – Murder – Circumstantial evidence – Appeal against conviction – Appreciation of evidence – Evidence of last seen – Disclosure statement – Motive – Accused and the deceased had left the house of the deceased and were seen taking tea together at the tea stall – Recovery of knife, blood-stained clothes and the ashes of the burnt blanket at the instance of the accused-appellant has been rightly accepted by the trial Court as well as by the High Court – Blood-stained clothes and the weapon, the knife, were sent to the Forensic Science Laboratory and report obtained from the Laboratory clearly shows that blood stains were found on the clothes and the knife – Though there has been no matching of the blood group yet that would not make a difference in the facts of the present case – Accused has not offered any explanation how the human blood was found on the clothes and the knife – PW 7’s testimony to the effect that he had seen the accused with a bundle in “palli” at a particular place cannot be disbelieved – It has been established that there was suspicion by the accused that the deceased was having relationship with his brother’s wife and that had aroused his anger – Said motive further strengthens the case of the prosecution- Appeal liable to be dismissed.

Murder

2015 STPL(Web) 305 SC (SC)(DB) - Judgment Date: 10-4-2015 - Acquittal upheld

STATE OF RAJASTHAN Vs. SAMPAT RAM AND OTHERS

Penal Code, 1860, Sections 147, 302/ 149 – Murder – Appeal against acquittal – Identity of accused – Appreciation of evidence – PW3 having turned hostile, the matter completely hinges on the testimony of PW4 – His behaviour in leaving the place of occurrence and not reporting the matter to any one held to be extremely unnatural – Incident having occurred in the darkness and as accepted by PW4 it was not in front of the tractor, the chance and opportunity for him to have sufficiently identified the assailants is also doubtful – There is nothing on record as to how “one child” who was on the tractor, has after investigation been found to be none other than PW5 aged about 22 years and a stout person – View that has weighed with the High Court in reversing the order of conviction and acquitting the respondents-accused is definitely a possible view – Do not see any justification to upset such view taken by the High Court in acquitting the respondent.

Murder – Dying declaration

2015 STPL(Web) 304 SC (SC)(DB) - Judgment Date: 10-4-2015 - Conviction

STATE OF MAHARASHTRA ETC. Vs. PRAVIN MAHADEO GADEKAR ETC.

Penal Code, 1860, Section 302, 354 – Evidence Act, 1872, Section 32(1) – Murder – Dying declaration – Appreciation of evidence – Dying declaration Ext.96, is definitely trustworthy – It also stands corroborated on material aspects by other declaration Ext.98 – If some exaggeration on part of PW1 and PW5 is eschewed, their oral testimonies also lend full support – Whether ‘S’-deceased was able to speak coherently is a matter which stands dealt with by PW7 Dr. – No hesitation in placing reliance on dying declaration Ext.96 – High Court held to be in error in discarding said dying declaration – View which weighed with the High Court was not even a possible view – Charges under Sections 302 and 354 as against Pradip and Pravin respectively stand fully proved – Respondent Pradip is convicted under Section 302 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs.1,000/– Respondent Pravin is convicted under Section 354 IPC and sentenced to suffer rigorous imprisonment for six months and to pay fine of Rs.500/-, in default whereof to suffer further rigorous imprisonment for one month.

Murder – Appeal against acquittal

2015 STPL(Web) 303 SC (SC)(DB) - Judgment Date: 10-4-2015 - Conviction

STATE OF RAJASTHAN Vs. SURJA RAM

Penal Code, 1860, Section 302, 201/ 34 – Murder – Appeal against acquittal – Testimony of PW 1 is consistent and not in any way shaken in cross-examination as regards ‘S’ and he was an equal participant in the crime – His role in bringing ‘J’ forcibly and making him sit in the vehicle, thereafter making him sit in the front, and finally in making him get down near the well and strangulating him, was rightly relied upon by the Trial Court – High Court committed gross error in granting him benefit of doubt – Given the status of record, such view is not a possible view at all – Judgment and order of the High Court acquitting ‘S’ liable to be set aside – Conviction as ordered by the Trial Court restored – ‘S’ convicted under Sections 302 and 201 IPC read with Section 34 IPC and sentenced to life imprisonment and to pay fine of Rs. 5,000/- on the first count and for 3 years and fine of Rs. 1.000/- on the second count – Sentences shall run concurrently.

Rape – Test Identification Parade – Non-holding of

2015 STPL(Web) 302 SC (SC)(DB) - Judgment Date: 10-4-2015 - Conviction

SATWANTIN BAI Vs. SUNIL KUMAR & ANR.

Penal Code, 1860, Section 376(1) – Rape – Testimony of prosecutrix – Test Identification Parade – Non-holding of – Appellant was subjected to sexual intercourse during broad day light – Fact that she was so subjected at the time and in the manner stated by her, stands proved – Three witnesses had immediately come on the scene of occurrence and found that she was raped – Immediate reporting and the consequential medical examination further support her testimony – By very nature of the offence, the close proximity with the offender would have certainly afforded sufficient time to imprint upon her mind the identity of the offender – Appellant had gone to the extent of stating in her first reporting that she would be in a position to identify the offender and had given particulars regarding his identity – Clothes worn by the offender were identified by her when called upon to do so – There was nothing wrong or exceptional in identification by her of the accused in court – Her testimony found to be completely trustworthy and reliable – Held that the case against Respondent No.1 stands proved – Since the trial court had found the age of the Appellant to be 10-13 years of age, the age taken to be on the maximum scale i.e. 13 year – High Court was not justified in dismissing the revision – No other view was possible -Appeal allowed and t Respondent No.1 convicting for having committed the offence under Section 376(1) IPC and sentence him to undergo imprisonment for seven years and a fine of Rs.5,000/- also imposed which in its entirety shall be made over to the Appellant.

Customs – Stuffed leopard

2015 STPL(Web) 301 SC (SC)(DB) - Judgment Date: 26-3-2015 - Opportunity granted

REGIONAL DEPUTY DIRECTOR Vs. ZAVARAY S. POONAWALA & ORS.

Wild Life (Protection) Act, 1972, Schedule I – Customs Act, 1962, Section 124 – Convention of International Trade on Endangered Species of Wild Fauna and Flora (CITES), Articles I, II – Customs – Stuffed leopard – Import into India a trophy of one stuffed leopard by petitioner which he shot in Zambia – Permission was granted in the form of a license by DGFT subject to certain conditions stipulated therein – Condition no.4 thereof is that the applicant to obtain the clearance and certificate from DGFT and CITES Authorities wherever required – Clearance refused by the CITES and the same challenged before the High Court and it was held that CITES has no locus in the matter of grant of permission – Held that the conditions mentioned in the approval granted by the DGFT as well as Chief Wildlife Warden, were not met by respondent no.1 and in the absence thereof it cannot be treated that there were any proper or valid approval/permission given by the DGFT or by the Chief Wildlife Warden which could enable respondent no.1 to import the aforesaid item into this country – Before import of any specimen of species included in appendix I, prior import permit of Scientific Authority and Management Authority is required and before such a permit is given – Impugned order of the High Court as well as of the Authorities liable to be set aside – Scientific Authority shall consider the application and pass speaking order after giving opportunity of being heard to respondent no.1 – In case order passed is in favour of respondent no.1, he will be allowed to keep the trophy with him – In case order passed goes against respondent no.1, he shall surrender the trophy to the Custom Authorities – This would be subject to any rights which respondent no.1 will have in law, to challenge the orders passed by the Scientific Authority or CITES.

Contempt of Court – Partial compliance

2015 STPL(Web) 300 SC (SC)(DB) - Judgment Date: 9-4-2015 - Compliance with in four weeks directed

GAURI SHANKAR PD. RAI Vs. SAJAL CHAKROBORTY, CHIEF SECRETARY, GOVT. OF JHARKHAND AND ORS.

Contempt of Courts Act, 1971, Section 2(b) – Contempt of Court – Partial compliance of direction given by the Apex Court – Respondents partially fulfilled the direction given by this Court as well as the High Court with regard to the regularization of the services of the complainants from the year 1987 instead of 1981 – One more opportunity to the respondents to comply with the judgments and orders in toto for the regularization of the services of the complainants from the year 1981 – Same cannot be treated as a fresh direction issued in the contempt petitions to the respondents as the Court have indicated the purport of the operative portion of the judgments and orders of the High Court as well as this Court – Respondents directed to comply with the order as indicated and submit their compliance report within four weeks.

Quashing of Criminal Proceedings – Corruption

2015 STPL(Web) 299 SC (SC)(DB) - Judgment Date: 9-4-2015 - Not quashed

YUNUS ZIA Vs. STATE OF KARNATAKA & ANR.

Criminal Procedure Code, 1973, Section 2(d) and 482 – Penal Code, 1860, Sections 120-B, 420 – Prevention of Corruption Act, 1988, Section 13(1)(d) and 13(2) – Karnataka Lokayukta Act, 1984, Section 9,8 and 7 – Quashing of proceedings – Acting suo motu to register FIR on basis of newspaper report – Jurisdiction – There is a cognizable offence to be investigated by the police against the appellant –Same cannot be found fault with for the reason that the second respondent, who is on deputation to the Lokayukta, is an Inspector of Police attached to the State of Karnataka – He has got every power under Section 2(d) of the CrPC, to act suo-moto and take cognizance of the offence/offences alleged to have been committed by the appellant on the basis of the reports published against him, which according to him warranted registration of an FIR and investigate the matter against him in accordance with law – To see that justice is meted out and the case is fairly investigated by the Corps of Detectives (COD) of the State the said investigation entrusted to an officer of the rank equivalent to the Superintendent of Police in the COD.

Sales Tax – Classification

2015 STPL(Web) 298 SC (SC)(DB) - Judgment Date: 8-4-2015 - Classified.

VOLTAS LTD. Vs. STATE OF GUJARAT

Sales Tax Act, 1969, Section 55A, 69 – Classification – Works contract order – For fabrication and installation of air-conditioning plants – Having regard to the inseparable interdependence between the description of a works contract and the corresponding composition rate of tax, none of the inherent components of the works to be executed can either be ignored or disregarded for identifying the correct composition rate of the levy under the Act – Mere omission of the expressions “air-conditioners” and “A.C. coolers” in Entry No.5 would not be of any definitive consequence – Words plant and machinery applied in Entry 5 are otherwise compendious enough to include air-conditioners and A.C. coolers, if the works contract involved require fabrication as well as installation thereof – Held that the appellant’s works contract for fabrication and installation of water chilling plant at the factory of ‘A’ would fall under Entry 5 of the Schedule to the Notification dated 18.10.1993 issued under Section 55A of the Act and would be taxable at the rate of 5% as prescribed thereby – Impugned decision of the High Court liable to be set aside.

Central Excise – Refund – Unjust enrichment

2015 STPL(Web) 297 SC (SC)(DB) - Judgment Date: 13-3-2015 - Opportunity granted to assessee.

COMMNR. OF CENTRAL EXCISE, CHENNAI-III Vs. GRASIM INDUSTRIES

Central Excise Act, 1944, Section11B and 11D – Excise duty refund – Claim for – Cost of product – Capital goods – Doctrine of unjust enrichment – Held that if a particular material is used for manufacture of a final product, that has to be treated as the cost of the product – Cost of production may include capital goods which are a part of fixed cost as well as raw material which are a part of variable cost – Both are the components which come into costing of a particular product – In order to come out of the applicability of the doctrine of unjust enrichment the assessee to demonstrate that in the costing of the particular product, the cost of capital goods was not taken into consideration – View taken by the Tribunal is not correct in law and liable to be set aside – One opportunity directed to be granted to the respondent to demonstrate to the assessing authority that the cost of the capital goods was not included in the costing of the machinery – Only if the respondent is able to prove the aforesaid aspect it shall be entitled to the refund and not otherwise.

Review – Error apparent on the face of record

2015 STPL(Web) 296 SC (SC)(FB) - Judgment Date: 9-4-2015 - Review dismissed.

YAKUB ABDUL RAZAK MEMON Vs. STATE OF MAHARASHTRA THR. STF. CBI, MUMBAI

Constitution of India, Article 137 – Review – Criminal appeal – No error apparent on the face of record or any other ground found so as to warrant interference in exercise of review jurisdiction.

Quashing of Complaint – Death by Negligence

2015 STPL(Web) 295 SC (SC)(FB) - Judgment Date: 8-4-2015 - Complaint quashed. Compensation ordered.

RAJAN Vs. JOSEPH & ORS.

Penal Code, 1860, Section 304A – Constitution of India, Article 142 – Quashing of Complaint – Compensation – Death of wife of appellant by electric shock while working in the house of respondents as maid – To prove the charge under Section 304A IPC, it is necessary to establish that the accused, acted in a negligent manner in not taking reasonable care of their washing machine and caused the death of deceased due to electric shock – No rash or negligent act is noticed on the part of the respondents as per report of Electrical Inspector who enquired into the matter – Order of the High Court holding that no offence u/s 304A IPC made out and quashing the complaint upheld – Since deceased belonged to a lower strata of the society, in the interest of justice, in exercise of extra ordinary jurisdiction under Article 142 of the Constitution of India, the Court deemed it appropriate to direct the respondents No.1 & 2 also to pay compensation of Rs. one lac to the appellant.

Coal – Refund

2015 STPL(Web) 294 SC (SC)(DB) - Judgment Date: 8-4-2015 - Refund allowed

S.J. COKE INDUSTRIES PVT. LTD. ETC. Vs CENTRAL COALFIELDS LTD. ETC.

Constitution of India, Article 14 – Refund of Excess Amount Payable – Parity – Scheme for sale of Coal by electronic auction (e- auction) declared ultra vires the Constitution and directed refund of excess amount charged with interest – It is a case of refund of price recovered by the appellant in excess and not of any kind of payment of tax or duty – Appellant has already refunded such excess amount realised to many other parties without raising any such plea – If anything is done by a party in violation of the law, consequence has to follow and they are bound to return the money to the parties from whom excess amount has been realized -No justification to deny the benefit of such law to the present Companies on the ground of parity with the writ petitioner of Central Coalfields Ltd. and Eastern Coalfields Ltd case.

Will – Suspicious Circumstance

2015 STPL(Web) 293 SC (SC)(DB) - Judgment Date: 8-4-2015 - Will not valid

DHANNULAL AND OTHERS Vs. GANESHRAM AND ANOTHER

Will – Suspicious Circumstance – Proof of a Will stands in a higher degree in comparison to other documents – There must be a clear evidence of the attesting witnesses or other witnesses that the contents of the Will were read over to the executant and he, after admitting the same to be correct, puts his signature in presence of the witnesses – It is only after the executant puts his signature, the attesting witnesses shall put their signatures in the presence of the executant – In the instant case, the suspicious circumstance appears to be that when the Will was being executed, the thumb impression over the alleged Will was also taken by the beneficiaries and the document-writer was shown to be scribe of the document, whereas the document was not scribed by him – However, late ‘P’ although filed written statement before her death, but she did not whisper anything about the Will in the written statement – Admittedly, the Will was allegedly executed in 1977 whereas the written statement was filed sometime in 1987 – Do not find any error in the conclusion arrived at by the High Court that there are suspicious circumstances of the execution of Will.

Central Excise – Related Persons

2015 STPL(Web) 292 SC (SC)(DB) - Judgment Date: 8-4-2015 - Appeal by revenue fails

COMMISSIONER OF CENTRAL EXCISE, HYDERABAD Vs. DETERGENTS INDIA LTD. & ANR.

Central Excise and Salt Act, 1944, Section 4(1)(a) proviso (iii) and Section 4(4)(c) (as they stood prior to the 2000) – Excise Duty – Related Persons – Price at which valuation is to take place if sales are made to “related persons” in the course of wholesale trade – Assessee argued that the price paid by Shaw Wallace and Company for the same/similar products as was sold by unrelated entities to it was even lower than the price paid by Shaw Wallace to Detergents India Ltd – This being the case, it is clear that on facts here there is no “arrangement” between Shaw Wallace and Detergents India Limited to depress a price which is otherwise at arm’s length – Shaw Wallace and Detergents India Limited are “related persons” is made out by their holding/subsidiary relationship – However, from this, it does not follow that there is any arrangement of tax avoidance or tax evasion on the facts of this case -Proviso (iii) to Section 4(1)(a) would not be applicable – Further, it would also not be applicable for the reason that there is no predominance of sales by Detergents India Limited to Shaw Wallace as only 10% of its manufacturing capacity has been sold to Shaw Wallace, 90% being sold to Hindustan Lever Limited – For this reason also, proviso (iii) does not get attracted – Section 4(1)(a) and not proviso (iii) is attracted inasmuch as on facts the presumption of a transaction not being at arm’s length has been rebutted – Appeals by Revenue are devoid of merit liable to be dismissed.

Eviction – Personal Necessity – Non- payment of Rent

2015 STPL(Web) 291 SC (SC)(DB) - Judgment Date: 8-4-2015 - Eviction allowed

DR. AMBICA PRASAD Vs. MD. ALAM AND ANOTHER

Assam Urban Areas Rent Control Act, 1972, Section 2(c) , 5 – Transfer of Property Act, 1882, Section 109 – Eviction Petition – Personal Necessity – Non- payment of Rent – Landlord – Rights of lessor’s transferee – Definition of landlord in Section 2(c) of the Act, 1972 is couched in a very wide language, according to which not only the owner but also any person receiving rent, whether on his own account or on behalf of or for the benefit of any other person or as a trustee, guardian, or receiver for any other person, is also the landlord – However, for the purpose of eviction of a tenant on the ground of personal need or reasonable requirement, one must show that he is the owner of the building – High Court proceeded on the basis that the relationship of ‘landlord and tenant’ has not been established although the ownership of the appellant by virtue of the deed of exchange has neither been denied nor been disputed by the respondent- tenant – Even assuming that the elder brother of the appellant was acting as a landlord by receiving rent, it will not debar the original owner from filing a suit for eviction not only on the ground of personal necessity but also on the ground of default when it has come in evidence that the respondent on many occasions went to the appellant to pay rent but the latter refused to receive the rent -Admittedly, the respondent-tenant was paying electricity and other charges of the tenanted premises to the appellant -Approach of the High Court reversing the appellate court’s finding of personal necessity and not payment of rent cannot be sustained in law.

Dowry Death – Conviction set aside

2015 STPL(Web) 290 SC (SC)(FB) - Judgment Date: 8-4-2015 - Acquittal

MAJOR SINGH & ANR. Vs. STATE OF PUNJAB

Penal Code, 1860, Section 304B – Appeal against Conviction – Appreciation of Evidence – Dowry Death -No evidence as to the demand of dowry or cruelty and that deceased was subjected to dowry harassment “soon before her death” – Except the demand of scooter, there is nothing on record to substantiate the allegation of dowry demand – Assuming that there was demand of dowry it can only be attributed to the husband who in all probability could have demanded the same for his use – In the absence of any evidence that the deceased was treated with cruelty or harassment in connection with the demand of dowry “soon before her death” by the appellants who are father-in-law and mother-in-law of the deceased – Conviction of the appellants under Section 304B IPC cannot be sustained.

National Judicial Appointment Commission – Constitutional Validity

2015 STPL(Web) 289 SC (SC)(FB) - Judgment Date: 7-4-2015 - Referred to larger bench

SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION AND ANR. Vs. UNION OF INDIA

Constitution of India, Article 145(3) – National Judicial Appointment Commission Act, 2014 – Constitution (Ninety- Ninth Amendment) Act, 2014 – Constitutional Validity – Challenge as to – Submissions of the counsel opposing the petition is that all these petitions are premature for the reason that the Act has not come into force till today and till the Act comes into force, cause of action cannot be said to have arisen – Held that these petitions involve substantial questions of law as to the interpretation of the Constitution of India Registry directed to place all the matters of this group before Hon’ble the Chief Justice of India so that they can be placed before a larger Bench for its consideration.

Central Excise – Job Worker – Manufacturer

2015 STPL(Web) 288 SC (SC)(DB) - Judgment Date: 7-4-2015 - Assessee wins

COMMISSIONER OF CENTRAL EXCISE, GOA Vs. COSME FARMA LABORATORIES LTD.

Central Excise and Salt Act, 1944 – Drugs and Cosmetics Act, 1940 – Drugs and Cosmetic Rules, 1945, Rule 69-A and Form No.24A – Medicaments – Job Worker – Manufacturer – Excise duty – Assessable value – Whether the respondent, who was getting its medicaments manufactured through the job workers, can be considered to be an independent manufacturer and what is the assessable value of the medicaments manufactured by the job workers for the purpose of assessment under the Act, 1944 – Tribunal, after appreciating relevant evidence, has come to a conclusion that the job workers were the manufacturers and the respondent-the loan licensee, was not the manufacturer, see no reason to interfere with the said findings of fact, especially when the same is correct and not perverse -Findings arrived at by the Tribunal that the job workers are the manufacturers upheld – Once it has been determined that the job workers are the manufacturers, the assessable value of the goods would be a sum total of cost of raw material, labour charges and profit of the job workers, as per circular No.619/10/2002-CX dated 19th February, 2002 – Price at which the respondent brand owner sells its goods would not be the assessable value because the duty is to be paid at the stage at which the goods are manufactured and not at the stage when the goods are sold.

Service Law – Counting of Past Service

2015 STPL(Web) 287 SC (SC)(DB) - Judgment Date: 7-4-2015 - Counting of Past Service allowed

SECRETARY, MINOR IRRIGATION DEPTT. & R.E.S. Vs. NARENDRA KUMAR TRIPATHI

Uttar Pradesh Regularisation of Ad hoc Appointments (on posts within the purview of the Public Service Commission) Rules, 1979 (as amended on 7th August, 1989 by the Uttar Pradesh Regularisation of Ad Hoc Appointments (on posts within the purview of the Public Service Commission) (Second Amendment) Rules, 1989) , Rule 4,7 and 10 – Adhoc Appointee – Regularisation – Counting of Past Service – Seniority – Scheme of the working of the Rules in the Department shows that right from 1979, the Department has been making direct recruitment after due selection and by applying the 1979 Rules which rules have been extended from time to time to subsequent recruitments, services were regularized – Validity of the scheme of these recruitments is not under challenge – Held that when the rules provide that such ad hoc appointments have to be regularized and seniority counted from the date of appointment, the writ petitioner could not be deprived of the past service rendered by him from 12th June, 1985 till the date of regularization in 1989 – It is not a case where service rendered is either fortuitous or against rules or by way of stop gap arrangement.

Excise Duty – Payment under Protest – Refund

2015 STPL(Web) 286 SC (SC)(DB) - Judgment Date: 30-3-2015 - No refund after expiry of limitation

OSWAL CHEMICALS & FERTILIZERS LTD. Vs. COMMISSIONER OF CENTRAL EXCISE, BOLPUR

Central Excise Act, 1944, Section 11B – Central Excise Rules 1944, Rule 233B – Excise Duty – Payment under Protest – Refund – Limitation – Assessee is claiming refund for the period from 25.09.1996 to 16.10.1996 and application for refund was made on 30.04.1999 which was beyond six months period – Appeal was filed only in September, 1997 or thereafter – Even if this appeal is treated as a form of protest that was much beyond six months period from the date of purchase – So-called protest would not come to the aid of the appellant – Application for refund held to be time barred and on this ground alone, the appellant will not be entitled to refund of the amount.

Central Excise – Classification – Security Holograms

2015 STPL(Web) 285 SC (SC)(DB) - Judgment Date: 30-3-2015 - Assessee wins

HOLOSTICK INDIA LTD. Vs. COMMISSIONER OF CENTRAL EXCISE, NOIDA

Central Excise Tariff Act, 1985, First Schedule, Rule I – Classification – Tariff Entries 49.01; 39.19 – Manufactures of Security Holograms – Department sought to classify the security hologram under Tariff entry 39.19 of the Central Excise Tariff 1999-2000 whereas the appellant disputed this and stated that, in fact, the holograms ought to be classified under Tariff entry 49.01 – Held that a security hologram sticker would have as its primary part, the security hologram, the sticker part or adhesive part only being incidental to the primary use of the said goods – Tariff entry 49.01 would also be attracted on the facts of this case – In accordance with Note 2 to entry 49, that the security hologram part of the product in question is primary and the self- adhesive part only incidental insofar as the user of the said goods is concerned – Since the appellant has paid the duty during the pendency of these appeals, he will be entitled to a refund of the same in accordance with law.

Central Excise – Exemption – SSI Unit

2015 STPL(Web) 284 SC (SC)(DB) - Judgment Date: 27-3-2015 - Exemption allowed

VIR RUBBER PRODUCTS P. LTD. Vs. COMMISSIONER OF CENTRAL EXCISE, MUMBAI-III

Central Excise Rules, 1944, Chapter X – Excise duty – Exemption from payment of duty – Small Scale Industry benefit in terms of Notification No. 1/93 – Appellant a Small Scale Industrial unit has its own brand name “VIR” and has been manufacturing these products under the said brand name and supplying the same to various customers and claiming exemption from payment of excise duty – Appellant was also having job orders from some automobile companies like Hindustan Motors, Kinetic Honda, etc. and paying excise duty on those goods – Claim for excise duty on the good which he is manufacturing under its brand name of the ground that the value of goods exceeded Rs. 3 Crores and hence not entitled to claim benefit of SSI – Held that value of the goods meant for “HM”, “PAL”, “KH”, etc. could not have been included while considering as to whether the appellant is entitled to the benefit of the aforesaid Notification or not – Once that is excluded and the case is confined to the brand name ‘VIR’ which is the appellant’s own brand name and in respect of which the appellant had claimed exemption, the value of goods cleared in the previous year was less than Rs.3 crores – Therefore, the appellant shall be entitled to the exemption under the said Notification.

Correction/Modification in Judgment

2015 STPL(Web) 283 SC (SC)(DB) - Judgment Date: 26-3-2015 - Correction/Modification allowed

T.N.RAGHUPATHY Vs. HIGH COURT OF KARNATAKA & ORS.

Correction/ Modification – Shri ‘A’, learned senior counsel, had in fact not appeared in the matter and yet his name has been recorded in the order as well as appearance shown in the proceedings – Prayer made in the application granted – Ordered that name of Shri ‘A’, learned senior counsel be deleted from the proceedings dated 8th December, 2014 as well as from the Judgment dated 16th December, 2014.

Customs – Penalty

2015 STPL(Web) 282 SC (SC)(DB) - Judgment Date: 24-3-2015 - Assessee wins

FORTIS HOSPITAL LTD. Vs. COMMISSIONER OF CUSTOMS, IMPORT

Customs Act, 1962, Section 124, 125(2), 111(o), 112 – Exemption notification No. 64/88 dated 01.03.1988 – Import Duty – Exemption on Medical Equipment – Violation of Condition – Penalty – Show Cause Notice was issued under Section 124 of the Act -Proposed action which was contemplated in this provision it was also confined to confiscation of the imported machinery and imposition of penalty – Nothing was stated about the payment of duty -Final order which was passed included the direction to pay the customs duty as well – Held that when such an action was not contemplated, which even otherwise could not be done while exercising the powers under Section 124 of the Act, in the final order there could not have been direction to pay the duty – Contingency contained in Section 125(2) did not occur in the present procedure for want of exercise of option to pay fine – View taken by the CESTAT is correct and the contrary view taken by the High Court in the impugned judgment is not warranted on the interpretation of Section 125(2) of the Act – Made clear that it would still be open to the Department to take appropriate independent action against the appellant for payment of import duty, in case it is still within period of limitation.

Central Excise – Manufacture

2015 STPL(Web) 281 SC (SC)(DB) - Judgment Date: 18-3-2015 - Addition of dehydrated vegetable & spices in raw rice is not manufacture

SATNAM OVERSEAS LTD. Vs. COMMNR. OF CENTRAL EXCISE, NEW DELHI

Central Excise Act, 1944, Section 2(f) – Central Excise Tariff Act, 1985, Heading 2108; Heading 11.01 – Classification of Product – Manufacture – Mere addition of dehydrated vegetables and certain spices to the raw rice, would not make it a different product – Its primary and essential character still remains the same as it is continued to be known in the market as rice and is sold as rice only – Further, this rice, again, remains in raw form and in order to make it edible, it has to be cooked like any other cereal – In the absence of any manufacture there is no question of payment of any excise duty – It continues to be the product of the milling industry and would be classifiable under sub-heading 11.01 and not Heading 2108 – Rate of duty on this product, in any case, is ‘nil’.

Civil Procedure – Jurisdictional Issue – Preliminary Issue (Maharashtra Amend.)

2015 STPL(Web) 280 SC (SC)(DB) - Judgment Date: 8-4-2015 - Jurisdictional Issue is to be decided as Preliminary Issue

FORESHORE CO-OPERATIVE HOUSING SOCIETY LIMITED Vs. PRAVEEN D.DESAI (DEAD) THR. LRS. AND OTHERS

Civil Procedure Code, 1908, Section 9A (as inserted by Maharashtra Amendment Act, 1977) – Jurisdictional Issue – Preliminary Issue – Held that the provision of Section 9A as introduced by (Maharashtra Amendment) Act is mandatory in nature -It provides a self-contained scheme with a non-obstante clause which mandates the court to follow the provision – It is a complete departure from the provisions contained in Order XIV Rule 2 CPC – In other words, the non-obstante clause inserted by Maharashtra Amendment Act of 1977 in Section 9A and the express mandate of the Section, the intention of the law is to decide the issue relating to jurisdiction of the court as a preliminary issue notwithstanding the provision contained in Order XIV Rule 2 CPC – Made clear that in other cases where the suits are governed by the provisions of Order XIV Rule 2 CPC, it is the discretion of the court to decide the issue based on law as preliminary issue.

Murder – Interested Witnesses

2015 STPL(Web) 279 SC (SC)(DB) - Judgment Date: 8-4-2015 - Conviction

JODHAN Vs. STATE OF M.P.

Penal Code, 1860, Sections 302, 323, 324 read with Sections 149, 148 – Explosive Substances Act, 1908, Sections 3 and 4 – Appeal against Conviction – Appreciation of Evidence – Interested Witnesses – Testimony of – Order of acquittal passed by trial Court reversed by High Court – Witnesses who have deposed against the accused persons are close relatives and had suffered injuries in the occurrence – Their presence at the scene of occurrence cannot be doubted, their version is consistent and nothing has been elicited in the cross-examination to shake their testimony – There are some minor or trivial discrepancies, but they really do not create a dent in their evidence warranting to treat the same as improbable or untrustworthy – Submission on behalf of the appellant that the High Court has fallen into error by placing reliance on the evidence of the said prosecution witnesses repelled – Submission that when other witnesses have turned hostile, the version of these witnesses also should have been discredited does not commend acceptance, for there is no rule of evidence that the testimony of the interested witnesses is to be rejected solely because other independent witnesses who have been cited by the prosecution have turned hostile.

Making Preparation to Commit Dacoity – Conviction set aside

2015 STPL(Web) 278 SC (SC)(DB) - Judgment Date: 6-4-2015 - Acquittal

JASBIR SINGH @ JAVRI @ JABBAR SINGH VS. STATE OF HARYANA

Penal Code, 1860, Sections 399 and 402 – Arms Act, 1959, Section 25 – Appeal against Conviction – Appreciation of Evidence – Conviction of appellant set aside on following grounds:

(i) In a day light incident at 1.20 p.m. within the limits of City Police Station there is no public or any other independent witness of the arrest of the appellant along with other accused from the place of incident nor that of the alleged recovery of fire arm said to have been made from two of them.

(ii) Complainant (PW-6) has himself investigated the crime – Credibility of the investigation is also doubtful particularly for the reason that except the police constables, who are subordinate to him, there is no other witness to the incident.

(iii) It is not natural that the six accused, four of whom were armed with deadly weapons, neither offered any resistance nor caused any injury to any of the police personnel before they are apprehended by the police.

(iv) It is strange that all the accused were wearing blue shirts, as if there was a uniform provided to them.

(v) It is hard to believe that the appellant and three others did not try to run away as at the time of the noon they must have easily noticed from a considerable distance that some policemen are coming towards them.

Income Tax – Computation of Deductions

2015 STPL(Web) 277 SC (SC)(DB) - Judgment Date: 1-4-2015 - Revenue wins

JEYAR CONSULTANT & INVESTMENT PVT. LTD. Vs. COMMISSIONER OF INCOME TAX, MADRAS

Income Tax Act, 1961, Section 80HHC(3) – Computation of deductions under Section 80HHC(3) – Correct Method – Held that deduction is to be provided under sub-section (1) thereof which is “in respect of profits retained for export business” – Therefore, in the first instance, it has to be satisfied that there are profits from the export business – That is the pre-requisite – Sub-section (3) comes into picture only for the purpose of computation of deduction – For such an eventuality, while computing the “total turnover”, one may apply the formula stated in clause (b) of sub-section (3) of Section 80HHC – However, that would not mean that even if there are losses in the export business but the profits in respect of business carried out within India are more than the export losses, benefit under Section 80HHC would still be available -Since there are losses in the export business, question of providing deduction under Section 80HHC does not arise and as a consequence, there is no question of computation of any such deduction in the manner provided under sub-section (3).

Land Acquisition – Compensation

2015 STPL(Web) 276 SC (SC)(DB) - Judgment Date: 1-4-2015 - Compensation enhanced

BHUPAL SINGH AND OTHERS Vs. STATE OF HARYANA

Land Acquisition Act, 1894, Section 23 – Land Acquisition – Compensation – Enhancement of Compensation – Acquisition of land of a large chunk of land for construction of ‘residential purpose’ made in made in 1977 – Appellants did not file any sale deed in evidence in support of their case to prove the fair market value of the acquired land – Adduced an oral evidence of some witnesses to prove the potentiality of the lands by showing its location, proximity to the main road etc. – LAO, Reference Court and the High Court fixed their respective rates as Rs.16.52, Rs.22/- and Rs. 50/- per Square yard – High Court did hold in appellants’ favour that they were entitled to claim compensation at the rate of Rs.63/- per Square yard but assessed the rate at Rs.50/- per square yard – Held that it should have been fixed at Rs.63/- per square yard only – Concerned LAO directed to calculate the compensation payable to the appellants at the rate of Rs.63/- per sq. yard” and accordingly calculate all statutory compensation such as solatium, interest etc. payable under the Act to every land owner.

Territorial Jurisdiction – Exclusive Jurisdiction

2015 STPL(Web) 275 SC (SC)(DB) - Judgment Date: 1-4-2015 - Plaint returned

EXCEL DEALCOMM PRIVATE LIMITED Vs. ASSET RECONSTRUCTION COMPANY (INDIA) LIMITED & ORS.

Territorial Jurisdiction – Exclusive Jurisdiction – Clause 5 of the Agreement entered into between the parties reads “The payment/Cheque shall be drawn and made payable in Mumbai – The jurisdiction shall be Courts of Mumbai.” Clause 9(e)(viii) of the Agreements further reads “Disputes, if any, shall be subject to the jurisdiction of Mumbai Court/Tribunals only” – Held that it is clear from these two clauses that the intention of the parties to the Agreement was to restrict limitation to the forums/courts of Mumbai only – Present suit is a suit for land, and that the parties had granted exclusive jurisdiction to the Court of Mumbai, the jurisdiction of the Court at Calcutta is clearly ousted as per law – Plaint will have to be returned by the Calcutta High Court as it does not have the jurisdiction.

Slum Rehabilitation Scheme – Clubbing of Private & Municipal Land

2015 STPL(Web) 274 SC (SC)(DB) - Judgment Date: 1-4-2015 - Scheme Valid

BALASAHEB ARJUN TORBOLE & ORS. Vs. ADMINISTRATOR & DIVISIONAL COMMISSIONER & ORS.

Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971, Section 4(1), 3-A – Maharashtra Regional and Town Planning Act, 1966, Sections 2(15) and 2(19), 37(IB), 159 – Mumbai Municipal Corporation Act, 1888, Section 354AAA – Development Control Regulations for Greater Mumbai, 1991, Regulation 33(10) – Slum Rehabilitation Scheme – Clubbing of Private Land and Municipal Corporation Land – Held that there is no illegality in clubbing of private land and Municipal Corporation land for declaring a contiguous area as a slum area for the purposes of approving a slum rehabilitation scheme for such area -Submission on behalf of the appellants that the required particulars were not compiled and were not available in the form of Annexure II for the private lands or it led to illegality and vitiated the approval of the particular slum rehabilitation scheme for the slum area in question repelled – The authorities had verified the particulars contained in Annexure II and thereafter they were entitled to treat the entire slum area existing over private lands as well as Municipal Corporation lands as one slum area – Since consent of 70% or more of slum dwellers of such area was available, the authorities did not commit any illegality so as to vitiate the grant of approval for slum development scheme in question.

MACT – Compensation

2015 STPL(Web) 273 SC (SC)(DB) - Judgment Date: 31-3-2015 - Compensation enhanced

CHANDERI DEVI & ANR Vs. JASPAL SINGH & ORS.

Motor Vehicles Act, 1988, Section 168 – Compensation – Dependency – Deceased aged 32 years -Employed as an Indian Cook in Moghul Tandoor Restaurant in Germany – He was drawing wages of 1145 Euro per month -Taking the income of the deceased at the time of his death at Rs.8,333/- per month by High Court held to be on the lower side – Plausibly estimating as to how much a cook of similar nature as the deceased would have earned in India in the year 2006, it would be just and reasonable to ascertain the income of the deceased at the time of his death at Rs.15,000/- per month – By adding 50% of the actual salary as provision for future prospects, the income of the deceased to be considered for calculation of loss of dependency is Rs.22,500/- per month i.e. Rs.2,70,000/- per annum – Deducting 10% towards income tax the net income comes to Rs.2,43,000/- per annum – Further, deducting 1/3rd towards personal expenses and applying the correct multiplier the loss of dependency would come to Rs.25,92,000/- [(Rs.2,43,000/- (-) 1/3rd of Rs.2,43,000/-) x 16] – Rs.1,00,000/- awarded towards loss of estate to the appellant- wife, Rs.25,000/- towards funeral expenses and Rs.1,00,000/- towards loss of consortium to the appellant-wife – An amount of Rs.1,00,000/- is awarded to the appellant-minor towards loss of love and affection of her father(deceased) – Compensation enhance from Rs.17,10,000/- to Rs. 29,17,000/- with interest @9% p.a. from the date of filing of the application till the date of payment.
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Entry Tax – Reduction in – Refund of Excess Payment

2015 STPL(Web) 272 SC (SC)(DB) - Judgment Date: 17-3-2015 - Law denying refund of excess payment quashed

VIKRAM CEMENT & ANR. Vs. STATE OF MADHYA PRADESH & ORS.

Constitution of India, Articles 14 and 265 – M.P. Sthaniya Kshetra Me Mal Ke Pravesh Par Kar Adhiniyam, 1976 – Entry Tax – Reduction in – Refund of Excess Payment – Discrimination – Challenge to Explanation attached to Notification dated 4.5.1999 and the Notification dated 5.7.1999 which states that the amount shall not be refunded in any case on the basis that dealer had filed the tax at a higher rate – Held that it results in invidious discrimination towards those who have paid the tax at a higher rate, like the appellants, when compared with that category of the persons who were defaulters and have now been allowed to pay the tax at the rate of 1% for the relevant period -It carves out two categories of tax payers who are made to pay the tax at different rates, even though they are identically situated – There is no basis for creating these two classes and there is no rationale behind it which would have any causal connection with the objective sought to be achieved – Explanation held to be highly discriminatory in nature and declared unconstitutional hence liable to be quashed.

Will – Pensionary benefits – Second Wife

2015 STPL(Web) 271 SC (SC)(FB) - Judgment Date: 26-2-2015 - First legally wedded wife alive No pension to second wife

RAJ KUMARI & ANR. Vs. KRISHNA & ORS.

Civil Procedure Code, 1908, Section 100 – Second Appeal – Substantial Question of Law – Will – In favour of Second Wife – Pensionary benefits – Held that pension is given to the legally wedded wife of a deceased employee –Plaintiff-first respondent cannot be said to be the legally wedded wife of late ‘A’, especially when he had a wife, who was alive when he married to first respondent – High Court should not have modified the findings arrived at and the decree passed by the trial court in relation to the pensionary benefits – Pensionary benefits directed to be given by the employer of late ‘A’ to the present appellants in accordance with the rules and regulations governing service conditions of late ‘A’.

Maintenance – Divorced Muslim Woman

2015 STPL(Web) 270 SC (SC)(DB) - Judgment Date: 6-4-2015 - Section 125 CrPC is applicable to a Muslim woman

SHAMIMA FAROOQUI Vs. SHAHID KHAN

Criminal Procedure Code, 1973, Section 125 – Maintenance – Divorced Muslim Woman – Held that Section 125 CrPC is applicable to a Muslim woman.

Service Law – Recovery of House Rent Allowance

2015 STPL(Web) 269 SC (SC)(DB) - Judgment Date: 18-3-2015 - Appeal not entertained

HINDUSTAN FERTILISERS CORP.LTD. Vs. PATHIKA RANI PAL & ANR.

House Rent Allowance – Payment of – Recovery – Challenge to the impugned order of the High Court directing that the deceased husband of the respondent, who was an employee of the appellant-Corporation, would be entitled to claim rent, for the flat allotted to him, only till the date of his retirement i.e., only till 02.04.1992 – High Court also clarified, that in the event the Corporation having deposited the rent for the above-mentioned flat, beyond the date of the allottee’s retirement, i.e. beyond 02.04.1992, the same could be recovered by the Corporation, from the employee or his legal representative – Held that there is no justification whatsoever to entertain the instant civil appeal, or to adjudicate, the limited legal issues arising out of, in the determination of the present controversy – While disposing of the instant appeal, the legal issue (s) arising (if at all) kept open.

Education – Jurisdiction

2015 STPL(Web) 268 SC (SC)(DB) - Judgment Date: 18-3-2015 - No interference

AJAY KUMAR SINGH & ORS. Vs. STATE OF JHARKHAND & ORS.

Bihar Non-Government Secondary School (Taking over of Management & Control) Act, 1981, Section 3 – Education – Jurisdiction – Assertions made on behalf of the appellants, that the issue raised by the appellants, cannot be adjudicated either by the Deputy Commissioner (in his capacity as Receiver) or by the Committee constituted in furtherance of the order passed by the High Court on 18.10.2005 held to be wholly misconceived – Held that the issue of jurisdiction, has not been vested with any express authority, under the provisions of the 1981 Act – Order of the High Court upheld – Liberty granted to the appellants, to seek redressal of their grievance, in terms of the directions issued by the High Court.

Quashing of FIR – Kidnapping

2015 STPL(Web) 267 SC (SC)(DB) - Judgment Date: 18-3-2015 - FIR quashed

TABBASSUM JAHAN & ANR. Vs. STATE OF UTTARKHAND & ORS.

Penal Code, 1860, Section 364 – Quashing of FIR – Respondent No.3–complainant father of the girl affirmed, that consequent upon the matrimonial alliance between appellant Nos.1 and 2, they have been blessed with two children and that he has granted his consent and approval, to their marriage – In order to do complete justice in the matter, it would be just and appropriate to accept the prayer made in the petition, and to quash the First Information Report registered against appellants and also to set aside the order passed by the High Court dated18.12.2009.

Quashing of Criminal Proceedings – Second Complaint

2015 STPL(Web) 266 SC (SC)(DB) - Judgment Date: 18-3-2015 - Not quashed

MAHENDRI & ORS. Vs. STATE OF U.P. & ANR.

Criminal Procedure Code, 1973, Section 154, 156(3), 482 – Penal Code, 1860, Sections 323, 342, 384, 504 and 506 IPC – Child Marriage Prevention Act, Section 5 – Quashing of Proceedings – Second Complaint – Application filed by the complainant under Section 156(3) Cr.P.C. was declined by the Court of competent jurisdiction – Prayer made by the complainant in the aforesaid application was to order further investigation in the matter – Declining of the aforesaid prayer, would not affect the merits of the controversy, nor would it reflect the veracity of the allegations made by the complainant in the First Information Report which was subsequently lodged – Consequent upon the filing of the subsequent FIR, the matter came to be investigated by the concerned Sub-Inspector of Police and a charge sheet filed on the basis of the statement of the complainant, the statement of the witnesses, as also, the inspection of the place of incident, the medical report, and relevant photographs – Held that it is not possible to say, that the order passed by the concerned Court earlier would have any effect on the veracity of the merits of the allegations made by the subsequent complaint or the proceedings which would emanate therewith.

Quashing of Criminal Proceedings – Customs – Superdnama – Violation of

2015 STPL(Web) 265 SC (SC)(DB) - Judgment Date: 18-3-2015 - Proceedings quashed subject to payment as per demand notice

GURNAM SINGH Vs. SUPDT. OF CUSTOMS (PREVENTIVE)

Criminal Procedure Code, 1973, Section 482 – Customs Act, 1962, Clause (2) of Section 142(1) – Quashing of Proceedings – Superdnama – Violation of – Detention order – For recovery of the amount of Rs.32,94,000/- i.e. the price of goods kept under surperdnama by detaining and selling of goods – Stated on behalf of the appellant that he has always been ready and willing, and is still ready and willing, to deposit the amount of compensation, along with interest, in lieu of the deficiency of goods alleged – Held that ends of justice would be met, if the appellant deposits the amount indicated in the Demand Notice dated 05.09.1995, along with interest at the rate of 9% – In the event of the appellant not making the above deposit, the instant appeal will be deemed to have been dismissed, resulting in the revival of the proceedings pending before the Chief Judicial Magistrate.

Ex parte Decree – Setting aside of

2015 STPL(Web) 264 SC (SC)(DB) - Judgment Date: 17-3-2015 - Ex parte decree set aside

DR.DILIP KUMAR SHARMA Vs. ANKAM NAGESWARA RAO & ORS.

Civil Procedure Code, 1908, Order 9 Rule 13 – Ex parte Decree – Application for Setting aside – Dismissal of – Sufficient cause – Appellant and his two sons served in their capacity as legal representatives of their wife/mother respectively of the deceased sole defendant but they did not appear – Places where the legal representatives of the deceased sole defendant were stationed, were at a great distance of more than 1000 Kms. from the jurisdictional court adjudicating upon suit – Travel to the jurisdictional Court was therefore likely to be, not only time consuming, but also a matter of substantial expense – Immediately on coming to know about the fact that the suit had been decreed ex-parte, they moved an application for setting aside the ex-parte decree within five days of the suit being decreed – Trial court did not take into consideration the time gap between the impleadment of the legal representatives of the deceased sole defendant (in September, 2011), and the disposal of the suit (on19.10.2011) – Ex-parte decree dated 19.10.2011 deserves to be set aside – Respondent has been put to great hardship and inconvenience, on account of non-appearance of the appellant, as also, his two sons before trial Court – Costs of one lac awarded to the respondent to be paid by the appellant and his two sons.

Cess – Interest

2015 STPL(Web) 263 SC (SC)(DB) - Judgment Date: 25-3-2015 - Interest from the date of assessment

AGRICULTURAL INCOME TAX OFFICER & ANR. Vs. GOODRICKE GROUP LTD. & ANR.

West Bengal Rural Employment and Production Act, 1976, Section 4B – West Bengal Primary Education Act, 1973, Section 78C (as amended by West Bengal Taxation Laws (Second Amendment) Act of 1989 – Rural Employment Cess – Education Cess – Levy of cess under Act, 1976 and 1973 respectively – Charging sections under both the aforesaid Acts were declared invalid both on the ground of legislative competence as well as violation of Article 301 – By the Amendment Act of 1989 the provisions of both the aforesaid Acts were amended, the charging sections were substituted with retrospective effect, and the levy of the rural employment cess and education cess (which was levied under the earlier principal Acts on the basis of despatch of manufactured tea) was now levied on the basis of production of tea leaves – Section 4B and Section 78C of the Amendment Act, 1989 have changed the basis of the law as it existed when Buxa Dooars Tea Company Ltd.’s case was decided and consequentially, the judgment and interim order passed in Buxa Dooars Tea Company Ltd.’s case will cease to have any effect – Also, what would have been payable under the Act as unamended, is now payable only under the 1989 Amendment Act which has come into force with retrospective effect – What is done away with by the Amending Act of 1989 is a declaratory judgment holding the above cesses to be invalid – Held that the impugned judgment is right in holding that with regard to the payment of interest by the petitioner on the amount of cess payable by virtue of the Goodricke Group Ltd.’s case, interest would only be payable from the respective dates of assessment for the various relevant periods till recovery – Respondents here have made payment of interest from time to time to the State – These payments will be adjusted against any sum that would become payable as a result of this judgment.

Quashing of Criminal Proceedings – Cruelty

2015 STPL(Web) 262 SC (SC)(DB) - Judgment Date: 19-3-2015 - Quashed in favour of some accused

PRITAM ASHOK SADAPHULE AND OTHERS Vs. STATE OF MAHARASHTRA AND ANOTHER

Penal Code, 1860, Section 498A – Quashing of Proceedings – Complaint made against husband, and his father, mother, brother and sister and FIR registered u/s 498-A – On perusal of the allegations from the complaint of respondent no.2 there can be no doubt whatsoever, that the allegations levelled against appellant nos. 2 to 5 do not justify any inference, which would lead to the conclusion, that they could be held responsible, for an offence in the nature of Section 498A IPC – FIR and the proceedings that may have arisen therefrom, including the charge sheet against appellant nos. 2 to 5 liable to be quashed – Prayer made for quashing of the proceedings against appellant no.1-husband declined.

Sentence – Death in Motor accident

2015 STPL(Web) 261 SC (SC)(DB) - Judgment Date: 30-3-2015 - Reduction in sentence set aside

STATE OF PUNJAB Vs. SAURABH BAKSHI

Penal Code, 1860, Section 279/304A – Criminal Procedure Code, 1973, Section 357(3) – Motor Vehicles Act, 1988, Section 168 – Conviction – Sentence – Reduction in Sentence – Compensation – Death of two person caused by motor accident when respondents car struck head on with the other car in which deceased were traveling – Factum of rash and negligent driving by respondent has been established – Held that principle of sentencing recognizes the corrective measures but there are occasions when the deterrence is an imperative necessity depending upon the facts of the case – High Court held to have been swayed away by the passion of mercy in applying the principle that payment of compensation is a factor for reduction of sentence to 24 days – It is absolutely in the realm of misplaced sympathy – It is, in a way mockery of justice – Such a crime blights not only the lives of the victims but of many others around them – It ultimately shatters the faith of the public in judicial system – Sentence of one year as imposed by the trial Magistrate which has been affirmed by the appellate court reduced to six months.

Specific Performance – Conditional Decree – Extension of Time

2015 STPL(Web) 260 SC (SC)(DB) - Judgment Date: 27-3-2015 - Failed to comply decree - Suit stood dismissed automatically

P.R. YELUMALAI Vs. N.M. RAVI

Specific Relief Act, 1963, Section 28(1) – Civil Procedure Code, 1908, Section 151; Order 21 Rule 2 – Specific Performance – Conditional Decree – Extension of Time – Period of one month granted for depositing the balance consideration started from the date of decree i.e. 27.2.2007 – Period of one month started from 27.2.2007 and ended on 26.3.2007 – After extension of two months was granted, the last date for depositing the amount of balance consideration fell on 26.5.2007 – As the Civil Court was not working on 26.5.2007 and next date i.e., 27.5.2007 was Sunday, the Plaintiff-Buyer was to deposit the amount on 28.5.2007, which was the re- opening day – However, there is no evidence on record to show that he made efforts to deposit the balance consideration on 28.5.2007 or made an application on 28.5.2007 – The R.O. is dated 29.5.2007 and deposit was made on 29.5.2007 – Plaintiff-Buyer failed to comply with the decree and the suit stood dismissed automatically – Plaintiff-Buyer also failed to make out a case for condonation of delay – Questions formulated by the High Court in the order of remand are not required to be answered by the Trial Court – Appeal filed by the Plaintiff-Buyer liable to be dismissed and the appeal filed by the Defendant- Seller allowed.

Murder – Acquittal by High Court Set aside

2015 STPL(Web) 259 SC (SC)(DB) - Judgment Date: 27-3-2015 - Conviction

RANBEER SINGH (DEAD) BY L.R. Vs. STATE OF U.P. AND ORS.

Penal Code, 1860, Section 302/34 – Arms Act, 1959, Section 25 – Appeal against Acquittal – Murder – Common Intention – Appreciation of evidence – Enough material to infer the common and shared intention of the present accused-respondents with that of ‘S’ convicted accused –Held that there was no justifiable reason for the 4 accused persons to go 100-150 yards inside the field of the complainant – Fact that they carried a weapon being 315 bore country-made pistol with them clearly shows that they had all the wrong intentions – Nowhere in the case of defence has this come out that the present three accused-respondents were not aware of the fact that ‘S’ carried the weapon – Also, the exhortation made by the accused persons against the complainant and the deceased mentioned about killing them – Having made such an exhortation, they threw the deceased on the ground – It goes on to show that they all shared a common intention and worked in tandem – High Court erred in acquitting the present accused-respondents as the view taken by the High Court is not even a possible view – Impugned judgment of the High Court liable to be set aside and the judgment and order passed by the Sessions Court restored.

Industrial Dispute – Permanent Status – Pay Scale

2015 STPL(Web) 258 SC (SC)(DB) - Judgment Date: 27-3-2015 - Employee wins

UMRALA GRAM PANCHAYAT Vs. SECRETARY, MUNICIPAL EMPLOYEES UNION & ORS.

Industrial Disputes Act, 1947, Section 2(ra), 25T and 25U – Unfair labour practice – Non Permanent Workman – Claim for Permanent Status – Equal pay for equal work – Work which was being done by the concerned workmen was the same as that of the permanent workmen of the appellant- Panchayat – They have also been working for similar number of hours – Discrepancy in the payment of wages/salary between the permanent and the non-permanent workmen is alarming and the same has to be construed as being an unfair labour practice as defined under Section 2(ra) of the ID Act r/w Entry No.10 of the Fifth Schedule to the ID Act, which is prohibited under Section 25(T) of the ID Act – Principle “equal work, equal pay” has been violated by the appellant-Panchayat as they have been treating the concerned workmen unfairly and therefore, the demand raised by the respondent-Union needs to be accepted – High Court has thus, rightly not interfered with the Award of the Labour Court as the same is legal and supported with cogent and valid reasons – Held that the services of the concerned workmen are permanent in nature, since they have worked for more than 240 days in a calendar year from the date of their initial appointment- Not making their services permanent by the appellant-Panchayat is erroneous and also amounts to error in law – Appeals liable to be dismissed and directed the appellants to treat the services of the concerned workmen as permanent employees, after five years of their initial appointment as daily wage workmen till they attain the age of superannuation for the purpose of granting terminal benefits to them – Appellant further directed to pay the regular pay-scale as per the revised pay scale fixed to the post of permanent safai kamdars for a total period of 15 years to the concerned workmen and the legal representatives of the deceased workmen.

MACT – Compensation

2015 STPL(Web) 257 SC (SC)(DB) - Judgment Date: 27-3-2015 - Compensation enhanced

ASHA VERMAN & ORS. Vs. MAHARAJ SINGH & ORS.

Motor Vehicles Act, 1988, Section 166, 168 – Compensation – Dependency – Enhancement of Compensation – Deceased at the time of his death was working in the operation theatre as a technician in the permanent post at the Hospital and was earning Rs.4,617/- per month – On applying the principles as laid down in the case of Sarla Verma , 50% of the salary must be added to the income of the deceased towards future prospects of income, which comes to Rs.6,900/- per month, i.e. Rs.82,800/- per annum – Deducting 1/4th for personal expenses and applying the appropriate multiplier taking into consideration the age of the deceased 35 years at the time of his death, the total loss of dependency comes to Rs.9,93,600/- [(Rs.82,800/- (-) 1/4 X Rs.82,800/-)X 16] – Rs.1,40,000/- was spent by the appellant-wife for medical purposes of her husband(deceased) during the period of treatment before his death awarded towards medical expenses – Rs.1,00,000/- towards loss of estate, Rs.25,000/- towards funeral expenses and Rs.1,00,000/- towards loss of consortium awarded – Further, Rs.1,00,000/- awarded to each to the appellant-children towards loss of love and affection due to the loss of their father(deceased) and a sum of Rs.50,000/- is awarded to each of the appellant-parents towards loss of love and affection of their deceased son -Interest at the rate of 9% per annum on the compensation amount awarded instead of 8% awarded by High Court – Compensation enhanced from Rs. 5,35,000/- as awarded by the High Court to Rs. 16,58,600/-.

Industrial Dispute – Retrenchment

2015 STPL(Web) 256 SC (SC)(DB) - Judgment Date: 26-3-2015 - Employee wins

STATE OF U.P Vs. CHARAN SINGH

Uttar Pradesh Industrial Disputes Act, 1947, Section 6-N, 6W – Retrenchment – Respondent-workman continuously worked for 240 days in a calendar year – Work which was being done by the respondent-workman still continues to exist in the establishment of the appellant and the work of Tube-well Operator has now been taken over by other workmen, such as “Machhuwa” and that some Tube-well Operators were appointed on other posts as well – Held that the required conditions under the provisions of Sections 6-N and 6-W of the Act were not complied with by the appellant – It has rendered the order of termination of the services of the respondent-workman illegal – Both the courts below have rightly set aside the same and passed an Award of reinstatement and back wages.

Service Law – Merger of Cadres

2015 STPL(Web) 255 SC (SC)(DB) - Judgment Date: 26-3-2015 - Employer wins

DHOLE GOVIND SAHEBRAO & OTHERS Vs. UNION OF INDIA & OTHERS

Constitution of India, Articles 14 and 16 – Central Excise and Land Customs Department Group ‘C’ Posts Recruitment Rules, 1979 – Electronic Data Processing Posts (Group ‘C’ Technical Posts) Recruitment Rules, 1992, Rule 5, 7 – Customs and Excise Department, namely, the Central Excise and Customs Department Tax Assistant (Group ‘C’ Post) Recruitment Rules, 2003, Rule 4, 5 – Central Excise and Customs Department Senior Tax Assistant (Group ‘C’ Post) Recruitment Rules, 2003 – Merger of Cadres – Re-merger/re-amalgamation of the cadres in the Customs and Excise Department – Seniority-inter-se – Plea that dissimilar posts had been equated and that the equation of posts determined merely on the pay-scales attached to them, would not be acceptable in law – Held that on the basis of Rule 4 of the TA Rules, 2003, and Rule 5 of the STA Rules, 2003, it is not possible for us to conclude, that members of either of the two cadres (the erstwhile ministerial cadre, and the cadre of Data Entry Operators) can be treated to be superior to one or the other – Merger of the cadres, and the determination of the inter se seniority on merger, were justifiably determined, on the basis of the different pay- scales of the cadres merged, under the TA Rules, 2003 and the STA Rules, 2003 – By the mandate of the above Rules, all posts in equivalent pay-scales were placed at the same level – Posts in the higher scale of pay, were given superiority on the subject of inter se seniority, with reference to posts in the lower scale of pay – Above determination, at the hands of the rule framing authority, on the issue canvassed , cannot be termed either arbitrary or discriminatory – Provisions of Rule 4 of the TA Rules, 2003 and Rule 5 of the STA Rules, 2003, cannot be faulted on the touchstone of Articles 14 and 16 of the Constitution of India.

Service Law – Dismissal – Dispensing with Inquiry

2015 STPL(Web) 254 SC (SC)(DB) - Judgment Date: 26-3-2015 - Dispensing with inquiry upheld

VED MITTER GILL Vs. UNION TERRITORY ADMINISTRATION, CHANDIGARH AND OTHERS

Constitution of India, Article 311(2)(b) – Punjab Jail Manual, Paragraphs 97, 100, 101, 105, 106, 110, 117, 120 – Jail Official – Digging of Tunnel by Jail Inmates to Escape Jail – Dereliction in Duty – Dismissal – Dispensing with inquiry – Criminal trial – Plea that on the same charges criminal trial is being held and if witnesses can appear in open court proceedings before the trial court, with reference to the same set of allegations, they could surely have appeared, in a departmental proceeding as well repelled – Held that whilst in a criminal prosecution proof is strict, and must be based on cogent and acceptable evidence – In a criminal case, there is no alternative but to establish guilt of an accused, based on acceptable evidence – Evidence is to be produced before the Court, trying the criminal case – There is no way the same can be exempted, as in the case of a departmental proceeding – Insofar as the present controversy is concerned, there is a constitutional provision creating an exception. Clause (b) of the second proviso to Article 311(2) of the Constitution of India, is the exception in question, which authorizes the course adopted by the respondents – Reasons for dispensing with the departmental enquiry, cannot be dependent upon the holding or not holding of criminal proceedings, against the appellant/petitioners – Once the parameters stipulated in clause (b) of the second proviso to Article 311(2) of the Constitution of India are satisfied, the submissions advanced at the hands of the learned counsel for the appellant/petitioners, would not arise.

Service Law – Seniority

2015 STPL(Web) 253 SC (SC)(DB) - Judgment Date: 26-3-2015 - Employer Wins

A. RAGHU, SON OF RAJAIAH Vs. GOVT. OF ANDHRA PRDESH & OTHERS

Andhra Pradesh Police (Civil) Subordinate Service Rules, Rule 15 – Seniority-inter-se – Candidates selected in furtherance of the notification dated 22.1.1991, issued by the Recruitment Board – Whether they constitute one batch or whether, they constitute two batches of candidates, based on the separate dates, when they were deputed for training – Held that even though the appointees in question were deputed for training on 14.6.1992, their seniority had to be determined alongwith the candidates who had been deputed for training on 15.7.1991.

Quashing of Criminal Proceedings – IPC & Companies Act

2015 STPL(Web) 252 SC (SC)(DB) - Judgment Date: 26-3-2015 - Quash set aside

S. SATYANARAYANA Vs. ENERGO MASCH POWER ENGINEERING & CONSULTING PVT. LTD. & ORS.

Criminal Procedure Code, 1973, Section 482 – Companies Act, 1956, Section 628, 621 – Penal Code, 1860, Sections 120B and 420 – Quashing of Proceedings – Allegations are that the accused conspired with each other to cheat the complainant and a series of transactions gave rise to offence under Section 120B read with Section 420 IPC as also Section 628 of the Companies Act – Held that if the Special Court has jurisdiction to try offences under both the aforesaid Acts then the trial can certainly continue in respect of the offences which do not require the complainant to belong to the categories specified under Section 621 of the Companies Act – Thus the trial could certainly continue against those accused under the IPC – High Court completely overlooked the fact that the complaint made allegations against the accused A4, A5, A6, A9 and A10 only in respect of Section 120B and 420 IPC and there was no reason in law to quash a complaint against them on the ground that they were immune from prosecution under Section 628 of the Companies Act by virtue of Section 621 of that Act – Findings of the High Court that taking of cognizance against the accused A4, A5, A6 and A9 is without jurisdiction on the ground that the complaint does not make out a prima facie case for the offences under Section 628 of the Companies Act, 1956 against the said accused liable to be set aside.

Land Acquisition – Suitability of Land – Public Purpose

2015 STPL(Web) 251 SC (SC)(DB) - Judgment Date: 25-3-2015 - Liberty granted to represent

MOHAN SINGH GILL & ORS. ETC. Vs. STATE OF PUNJAB & ORS. ETC.

Land Acquisition Act, 1894, Section 4, 5A and 6 – Land Acquisition – Suitability of Land – Public Purpose – Rehabilitation of oustees – Whose land acquitted for Construction of Missing Link road – Plea that there is vacant agricultural land nearby which is more suitable for the purpose for which appellants land is sought to be acquired – It was also argued that the notification acquiring land for the Missing Link road is for an area of approx. 74.52 acres. Yet, more than 55.41 acres of land has been acquired for adjusting the oustees of the said road – Held that it is not for the Court to consider as to which particular piece of land is more suited for acquisition by the authorities – Though, prima facie, it appears that acquisition of 55.41 acres of land to rehabilitate the oustees whose land acquired measuring 74.52 acres is quite substantial yet it is not for the Court to decide as to what should be the extent of land that needs to be acquired for this purpose – It is for the Government to look into these aspects -Liberty given to the appellants to make a suitable representation to the respondents in this behalf within a period of 30 days and the same shall be considered in accordance with law and decision thereupon shall be taken within 2 months from said representation -Liberty of making representation is going only to the appellants herein, which benefit shall not enure to those who have not approached the Court.

Cinema – Compulsory Certificate from Films Division

2015 STPL(Web) 250 SC (SC)(DB) - Judgment Date: 25-3-2015 - Order set aside

PVR LIMITED Vs. STATE OF KARNATAKA & ORS.

Karnataka Cinemas Regulation Act, 1994, Section 12(1)(a) to (c) – Karnataka Cinemas (Regulation) Rules, 1971, Rule 8, 17, 18, 19, 20 and 35(c) – Requiring the appellant to obtain “Compulsory Certificate from Films Division” – Challenge as to – A consideration of the various provisions contained in the Act and the Rules including those extracted above do not indicate the availability of the power to the State Governments to issue any such blanket directions – Power conferred is to issue directions for exhibition of films approved by the State Government – If the Advisory Board was not available at the relevant point of time even the absence of such Board cannot clothe the State with the power to issue the impugned directions inasmuch as in that event the alternative mode of approval under Rule 17 has to be availed of -Initial order passed by the Division Bench allowing the Writ Appeal and setting aside the impugned notice held to be perfectly justified – Subsequent order passed on 18th November, 2006 virtually reverses the relief granted in the Writ Appeal and once again imposes the requirement on the appellant to exhibit documentary films produced by and procured from the Films Division only liable to be set aside.

Second Appeal – Substantial Question of Law – Subsequent Developments

2015 STPL(Web) 249 SC (SC)(DB) - Judgment Date: 25-3-2015 - Remand back

DASHMESH EDUCATIONAL SOCIETY Vs. PUNJAB URBAN DEVELOPMENT AUTHORITY & ORS.

Civil Procedure Code, 1908, Section 100 – Second Appeal – Substantial Question of Law – Subsequent Developments – Held that there is no escape from the necessity of consideration of the question as to whether the land on which the resort/country club is sought to be established being a part of the Karoran village is forest land within the meaning of the Forest (Conservation) Act, 1980 or not – A decision on the said question so as to conclusively and effectively determine the rights of the plaintiff has become unavoidable in view of the parallel developments and orders of this Court in civil appeal No. No.4682-4683 of 2005 and the consequential orders passed by the High Court – Such determination of the entitlement of the plaintiff cannot be short-circuited by avoiding a decision on the said question particularly when a substantial question of law was framed by the High Court in the second appeals before -Aforesaid determination should now be made by the High Court and for that purpose if the High Court considers it necessary may allow parties to adduce additional evidence – Both the appeals disposed of in terms of the direction(s) as indicated above.

Murder – Conviction Upheld

2015 STPL(Web) 248 SC (SC)(DB) - Judgment Date: 23-3-2015 - Conviction

PANNA LAL AND OTHERS Vs. STATE OF M.P.

Penal Code, 1860, Sections 147, 148, 302/149 and 323/149 – Appeal against Conviction – Right of Private Defence – Plea of – Incident in question had occurred 300 feet away from the disputed land – Injuries show that the skull was broken as a result of injuries from a sharp cutting weapon and the brain matter had come out through the gaping wound – Considering the matter in its entire perspective appellant Nos.1, 2 and 3 found guilty of the offences with which they are charged – Appeal liable to be dismissed.

Corruption – Known Sources of Income

2015 STPL(Web) 247 SC (SC)(DB) - Judgment Date: 23-3-2015 - Acquittal

KEDARI LAL Vs. STATE OF M.P. AND ORS.

Prevention of Corruption Act, 1988, Section 13(1)(e) r/w Section 13(2) – Appeal against Conviction –Conviction on charge of possessing assets in excess of ‘known sources of income” – Every single amount received by the appellant has been proved on record through the testimony of the witnesses and is also supported by contemporaneous documents and intimations to the Government – Fact that these amounts were actually received from the sources so named is not in dispute – These amounts reflected in the Income Tax Returns filed by the appellant – If the amounts in question are thus deducted, the alleged disproportionate assets stand reduced to Rs. 37,605, which is less than 10 % of the income of the Appellant – Benefit granted to the public servant and held that there is no violation of Section 13(1)(e) read with Section 13(2) of the Act – Judgment and order in appeal liable to be set aside and the appellant liable to be acquitted of the charges leveled against him.

Civil Procedure – Amendment of Decree

2015 STPL(Web) 246 SC (SC)(DB) - Judgment Date: 23-3-2015 - Amendment not allowed

RAMESH Vs. HARBANS NAGPAL AND OTHERS

Civil Procedure Code, 1908, Section 151 – Amendment of Decree – Application for – Preferred on behalf of Respondent No.1-Plaintiff after filing application for execution of decree – Application was dismissed by the trial court holding that there was no clerical error or accidental omission in the decree and that taking on record the amended site plan at that stage would amount to going behind the decree and modifying the terms of the original decree – Same challenged before the High Court – No dimensions were given in the plaint nor did the plaint refer to any sketch – The judgment and decree also did not refer to any dimensions of the chhajja in question nor did it incorporate or refer to any sketch from which dimensions could be gathered – Held that the view taken by the trial court was absolutely correct, in that any exercise would amount to going behind the decree – Application preferred under Section 151 CPC was also vague and lacking in any particulars – High Court held to be not justified in observing that as per the earlier site plan there was a protruding chhajja measuring 33″ beyond the staircase and issuing direction that the said chhajja shall be handed over to the decree holder who shall then erect a wall over the portion measuring 33″ beyond the staircase as shown in the initial site plan – Both the orders under appeal liable to be set aside.

Murder – Conviction Upheld

2015 STPL(Web) 245 SC (SC)(DB) - Judgment Date: 23-3-2015 - Conviction

DEEPA @ DEEP CHAND & ANR. Vs. STATE OF HARYANA

Penal Code, 1860, Section 302/34 – Appeal against Conviction – Murder – Appreciation of Evidence – Parity – Plea that the trial of ‘B’ which stood segregated and was conducted by the Juvenile Justice Court, had resulted in clean acquittal of ‘B’, which would also reflect on the falsity in the case of the prosecution repelled – Judgment of the Trial Court in the instant case was passed on 20.10.2000, while the judgment acquitting juvenile ‘B’ was passed on 23.04.2004 – Acquittal was based on the assertion by PW-1 in that trial that ‘B’ was not involved and that the deceased was assaulted by appellants ‘D’ and ‘S’ – Judgment in the case of ‘B’ would be of no avail to the appellants – Eye-witness account in the present case is truthful and has been accepted by both the courts below – Do not find anything on record to take a view different from the one which weighed with the courts below – Judgment and order of conviction and sentence as recorded against the present appellants affirmed.

Housing – Allotment of Flat

2015 STPL(Web) 244 SC (SC)(DB) - Judgment Date: 20-3-2015 - Direction to allot after specified payment

AVAS AYUKT,U.P.AVAS EVAM VIKAS PARISHAD & ORS. Vs. BHAGWAN TIWARI & ANR.

Pandeypur Yojana, Residential Housing Scheme, Varanasi – Flat Allotment – In the peculiar facts of the case in all a sum of Rs.5,15,000/- as full and final payment directed to be made by Respondent No.1 to the Appellant-Authority for allotment of the aforesaid flat – A sum of Rs.35,000/- has been paid by Respondent No.1 to the Appellant – After adjusting the amount already paid, in all a sum of Rs.5,15,000/- shall be paid by Respondent No.1 within one month – Vacant and peaceful possession of the flat in question, after due repairs and in normal condition as per the Scheme, shall be handed over to Respondent No.1 within two months, provided the afore-stated payment is made by the respondent.

Quashing of FIR – Direction by Magistrate to Register FIR

2015 STPL(Web) 243 SC (SC)(DB) - Judgment Date: 19-3-2015 - FIR Quashed, Directions issued to lower judiciary

PRIYANKA SRIVASTAVA AND ANOTHER Vs. STATE OF U.P. AND OTHERS

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, Section 32 – Criminal Procedure Code, 156(3) – Direction by Magistrate to register FIR against appellant No.1 on application moved by respondent No. 3 who was defaulter in payment of loan and proceeding under Act, 2002 were taken up against him – During the tenure of the appellant No.1, who is presently occupying the position of Vice-President, neither the loan was taken, nor the default was made, nor any action under the SARFAESI Act was taken – However, the action under the SARFAESI Act was taken on the second time at the instance of the present appellant No.1 – Held that learned Magistrate should have kept himself alive to the provision of Section 32 of the Act, 2002 before venturing into directing registration of the FIR under Section 156(3) Cr.P.C. – It is because the Parliament in its wisdom has made such a provision to protect the secured creditors or any of its officers, and needles to emphasize, the legislative mandate, has to be kept in mind – Impugned order passed by the High Court liable to be set aside and the registration of the FIR liable to be quashed.

Workmen Compensation – Insured Person

2015 STPL(Web) 242 SC (SC)(DB) - Judgment Date: 19-3-2015 - Insured person not entitled to compensation under this Act

DHROPADABAI AND OTHERS Vs. TECHNOCRAFT TOOLINGS

Workmen’s Compensation Act, 1923, Section 2(n) – Employees’ State Insurance Act, 1948, Section 2(14) and 53 – Workmen – Insured Person – Compensation – Claim for – Under Act, 1923 – Held that once an employee is an “insured person” under Section 2(14) of the 1948 Act, neither he nor his dependents would be entitled to get any compensation or damages from the employer under the 1923 Act.

Central Excise – Manufacture – Value Addition

2015 STPL(Web) 241 SC (SC)(DB) - Judgment Date: 12-3-2015 - Demand quashed

MARUTI SUZUKI INDIA LTD. Vs. COMMNR. OF CENTRAL EXCISE, NEW DELHI

Central Excise Rules, 1944 , Rule 57F – Central Excise Act, 1944, Sections 3 and 4 – Manufacture – Value Addition – On the true construction of Rule 57F(1), it would be clear that the “input” that is removed from the factory for home consumption is bumpers, grills, etc., being spare parts of motor vehicles procured by the appellant – ED coating which would increase the shelf life of the spare parts and provide anti-rust treatment to the same would not convert these bumpers, etc., into a new commodity known to the market as such merely on account of value addition – On account of mere value addition without more it would be hazardous to say that manufacture has taken place, when in fact, it has not – Inputs procured by the appellants in the present case, continue to be the same inputs even after ED coating and that Rule 57F(ii) proviso would therefore apply when such inputs are removed from the factory for home consumption, the duty of excise payable being the amount of credit that has been availed in respect of such inputs under Rule 57A.

Service Law – Withhold or Withdrawal of Pension

2015 STPL(Web) 240 SC (SC)(DB) - Judgment Date: 26-2-2015 - Pension released

H.L. GULATI Vs. UNION OF INDIA AND OTHERS

CCS (Conduct) Rules, 1964, Rule 3(1)(ii), 3(1)(iii) and 3(2)(i) – CCS(Pension) Rules, 1972, Rule 9 – Right of President to Withhold or Withdraw Pension – Grave Misconduct – Enquiry report only found that the appellant was negligent in the discharge of his duties – In Article IV of the memo of charges he was accused of complicity with the alleged suppliers, and also, responsible for having failed to maintain absolute integrity but the charge memo was held to be not proved in the Enquiry Report – Appellant was discharged from the criminal prosecution initiated against him with reference to the same sequence of facts –Held that the appellant may have been negligent in the discharge of his duties, but it is not possible to conclude, that the appellant was guilty of “grave misconduct” – In the absence of the conclusion of “grave negligence”, the punishment order liable to be set aside.

Information Technology Act – Constitutional Validity of Provisions

2015 STPL(Web) 239 SC (SC)(DB) - Judgment Date: 24-3-2015 - Section 66A Struck down

SHREYA SINGHAL Vs. UNION OF INDIA

Constitution of India, Article 19(1) (a), 19(2) – Information Technology Act, 2000, Section 66A – Challenge as to Validity of Section 66 A – Held that Section 66A of the Information Technology Act, 2000 is struck down in its entirety being violative of Article 19(1) (a) and not saved under Article 19(2).

Dacoity with Murder – Non Framing of Charge of Murder

2015 STPL(Web) 238 SC (SC)(DB) - Judgment Date: 24-3-2015 - Acquittal

MANMEET SINGH ALIAS GOLDIE Vs. STATE OF PUNJAB

Penal Code 1860, Sections 391,396 and 302 – Dacoity with Murder – Non Framing of Charge of Murder – Prosecution has completely failed to either prove the participation of five or more persons in the commission of the offence or establish their identity – In absence of a singular charge under section 302, IPC against the appellant sans the assembly, his conviction for dacoity with murder punishable under section 396, IPC, in the facts and circumstances of the case, cannot be sustained in law – Conviction and sentence of the appellant being repugnant to letter and spirit of section 391 and 396 of the IPC, the same is liable to be interfered with – Impugned judgments and orders of the Courts below liable to be set aside and the appellant is acquitted of the charges.

Specific Performance – Lease Hold Property – Necessary Party

2015 STPL(Web) 237 SC (SC)(DB) - Judgment Date: 24-3-2015 - Decree allowing specific performance set aside

DELHI DEVELOPMENT AUTHORITY Vs. GAURAV KUKREJA

Specific Relief Act, 1963, Section 15(a) – Specific Performance – Lease Hold Property – Necessary Party – In the suit for specific performance filed by respondent-‘G’ and his father-‘L’, DDA was not made a party to the suit despite the fact that it was within their knowledge that the property is a leasehold property under the control of DDA and cannot be disposed of without obtaining a prior permission from the DDA – In terms of Section 15(a) of the Specific Performance Act 1963, the suit for specific performance can be filed by “any party” to the contract – Suit for specific performance was filed by the respondent and his father who admittedly were not the parties to the agreement to sell – ‘J’ (vendor), during the pendency of suit, remained exparte and the suit was decreed in terms of a compromise arrived between the parties, all of whom were family members – Held that suit for specific performance is a collusive suit, where the respondent and his father used the process of the court to get rid of the stamp duty, registration charges and unearned increase payable to DDA.

Civil Procedure – Second Appeal – Concurrent Findings

2015 STPL(Web) 236 SC (SC)(DB) - Judgment Date: 24-3-2015 - Allowing second appeal set aside

STATE OF MADHYA PRADESH Vs. NOMI SINGH AND ANOTHER

Civil Procedure Code, 1908, Section 100 – Second Appeal – Concurrent Findings – Held that in respect of relief claimed by a plaintiff, he has to stand on his own legs by proving his case – High Court has wrongly shifted burden of proof on the defendants – While giving its reasons to disagree with the decree passed by the courts below, the High Court has observed that it was respondent-defendant who has challenged the possession of plaintiff and his father on the ground of khasra entries, therefore, burden of proving the fact that allegations made by the defendant are correct, is on the defendant, in which defendant has failed – Further the defendant has failed to prove the possession of plaintiff and his father was that of an encroacher – Defendant has further failed to prove the khasra Nos. 1950 to 1952 to be wrong or that patta given to the plaintiffs, was only for one year – High Court has completely ignored the fact that the plaintiff after losing case in the first round from trial court, got amended the plaint and took plea of adverse possession, on which matter was remanded to the trial court, and after hearing parties suit was again dismissed, which was upheld by the first appellate court. – Approach of the High Court held to be against the law – It erred in law in reversing the decree passed by the trial court and that of the first appellate court by shifting burden of proof on the defendant.

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