Cinema – Compulsory Certificate from Films Division

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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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.

Service Law – Anganwari Worker – Promotion

2015 STPL(Web) 235 SC (SC)(DB) - Judgment Date: 24-3-2015 - Employer wins


Integrated Child Development Scheme, Rules 4, 5 – Appointment of Anganwari Worker – From Anganwari Helper – Eligibility Criteria – It is neither the case of the respondent that due to her marriage or divorce she is required to be transferred from one centre to another centre, nor is her case for promotion/ appointment from the post of AWH to AWW in the same Anganwari Centre – Admittedly, she was appointed in 2007 as AWH in Anganwari Centre, ‘C’ – Now she has prayed for her appointment to the post of AWW in Anganwari Centre ‘H’ – It is not disputed that the communication dated 10.5.2012, issued by the appellant No. 2 (Director, Social Justice and Empowerment) to CDPOs of the State provides that if a post of AWW falls vacant in an Anganwari Centre, AWH of the same centre can be considered for her appointment to the post of AWW, giving her priority – High Court has erred in directing the appellants to consider the case of the respondent, who is AWH in the Anganwari Centre of ‘C’, for the post of AWW in the Anganwari Centre of ‘H’ as the area of one Anganwari Centre is not the feeder area of another Anganwari Centre – Impugned orders passed by the High Court cannot be sustained.

Constitutional Validity – Retrospective Amendment – Income Tax Act

2015 STPL(Web) 234 SC (SC)(DB) - Judgment Date: 24-3-2015 - Amendment valid


Constitution of India, Article 14 – Income Tax Act, 1961, Section 143(1A) – Fiscal Statute – Penal Provision – Amendment of Statute – Retrospective amendment – Clarificatory amendment – All assessees were put on notice in 1989 itself that the expression “income” contained in Section 143 (1A) would be wide enough to include losses also – That being the case, on facts here there is in fact no retrospective imposition of additional tax – Such tax was imposable on losses as well from 1989 itself – Held that Section 143 (1A) can only be invoked where it is found on facts that the lesser amount stated in the return filed by the assessee is a result of an attempt to evade tax lawfully payable by the assessee – Burden of proving that the assessee has so attempted to evade tax is on the revenue which may be discharged by the revenue by establishing facts and circumstances from which a reasonable inference can be drawn that the assessee has, in fact, attempted to evade tax lawfully payable by I -. Subject to the aforesaid construction of Section 143 (1A) the retrospective clarificatory amendment of the said Section upheld.

Civil Procedure – Rejection of Plaint

2015 STPL(Web) 233 SC (SC)(DB) - Judgment Date: 23-3-2015 - Plaint Rejected


Civil Procedure Code, 1908, Order 7 Rule 11 – Cause of Action – Rejection of Plaint – Nothing in the plaint except the two extracts even come close to being an allegation against the Negotiating Banks – In the above two extracts, there is expression of mere apprehension of the Plaintiffs that Negotiating Banks were in active collusion with the Synergic Companies – No explanation or justification has been made in the plaint as to how this active collusion came about or what makes the plaintiff suspect so – Though in the plaint not all the evidence with respect to allegations is to be adduced yet a comprehensive narration of facts that constitute cause of action has to be given – No cause of action, whatsoever, may be deduced against the Negotiating Bank from the above two extracts which form part of the plain – Order of the rejection of plaint by High Court not interfered with and appeals dismissed.

Quashing of Charges – Corruption

2015 STPL(Web) 232 SC (SC)(DB) - Judgment Date: 23-3-2015 - Quash set aside


Criminal Procedure Code, 1973, Section 227,228, 397/401 – Prevention of Corruption Act, 1988, Sections 13(2) and 13(1) (d) – Penal Code, 1860, Section 120B – Framing of Charge – Quashing of -Revised building plan, which was sanctioned in guise of the revision of sanction of the building permission, was a complete departure from the original plan – Built up area in the original plan was much less on Ground Floor, while in the revised plan it was increased substantially – Similarly, for the Club the proposed built up area for Ground Floor was decreased substantially – Completion certificate which was granted on 19.01.1995 was merely 7 days after the revision of building permission – It is difficult to fathom as to how even a Club could be completely built, with all compliances within 7 days of building permission, especially when the revised building plan consisted major changes from initial plan – Accused not only granted the revision without approval of any committee, but also accepted the honorary membership of the Club – There exists sufficient material to make out a prima facie case against the accused – Order passed by the High Court liable to be set aside and the order of the Addl. Sessions Judge framing charges restored.

Constitutional Validity – Retrospective Amendment – Agricultural Income

2015 STPL(Web) 231 SC (SC)(DB) - Judgment Date: 17-3-2015 - Amendment valid


Karnataka Agricultural Income Tax Act, explanation added retrospectively to Section 26(4) –Assessment of Agricultural Income – Retrospective Amendment – Rendered Judicial Decision Ineffective – Validity – Challenge as to – All that has been done in the present case is to remove the basis of the law as it stood in 1987 which was interpreted in Cardoza’s case as leading to a particular result – Legislature has done that with effect from 01.04.1975, dissolved firms will by legal fiction, continue to be assessed, for the purposes of levy and collection of agricultural income tax, insofar as they receive income post dissolution but relating to transactions pre-dissolution – In no manner has the legislature in the present case sought to directly nullify the judgment in Cardoza’s case and the legal foundation on which the Cardoza’s case was built is retrospectively removed – Which is well within the legislative competence of the legislature -Legislature has not directly over-ruled the decision of any court but has only rendered such decision ineffective by removing the basis on which the decision was arrived at – Impugned judgment of the High Court holding that it interfered directly with the judgment of a High Court and would therefore, have to be struck down as unconstitutional liable to be set.

PIL – Residential Area – Nuisance Created by the Pathological Lab

2015 STPL(Web) 230 SC (SC)(DB) - Judgment Date: 20-3-2015 - Pathological Lab directed to be closed


Water (Prevention and Control of Pollution) Act, 1986, Section 25 – Air (Prevention and Control of Pollution) Act, 1981 – Environment (Protection) Act, 1986 – Delhi Master Plan 2001, Section 2 – MPD-2021 – Mixed Use Regulations, Regulation 15.7.2 – Residential Area – Nuisance created by the Pathological Lab – Regularisation certificate – Issuance of – Challenge as to – Despite its notice by the MCD and DPCC, the illegal and unlawful activities of the respondent-owners have continued – Instead of taking prompt action as provided under the provisions of DDA Act, 1957 and the Environment Law MCD proceeded to regularise the illegal and unlawful activities of the respondent-owners which has been carrying on since 1995 though it is a party to the writ petition proceedings initiated against them – DPCC not only regularised the commercial activities of the Pathological Lab run by the respondent-owners under the guise of a ‘Nursing Home’ with retrospective effect but no prompt action was taken under the provisions of the Act to either stop it or to demolish the illegal structure – Both the MCD and the DPCC abdicated their statutory duties in permitting the owners to carry on with the unlawful activities which inaction despite persistent request made by the appellant and the residents of the area did not yield any results – Issuance of Regularisation Certificate to run the Pathological Lab in the building is totally impermissible in law even though the respondent-owners have placed reliance upon Mixed Use of the land in the area as per MPD 2021 – Impugned judgments and orders of both the learned single Judge and Division of the High Court liable to be set aside – Regularisation Certificate is quashed – Directions issued to the respondents MCD and DPCC to see that the unlawful activities of the respondent-owners are stopped as per – Respondent-owners are directed to close down their establishment of running the Diagnostic Centre’ within four weeks by shifting the same to alternative premises and submitting the compliance report for the perusal of this Court.

Service Law – Absorption

2015 STPL(Web) 229 SC (SC)(DB) - Judgment Date: 18-3-2015 - Employee wins


LIC of India (Staff) Regulations, 1960 – Industrial Disputes Act, 1947, Section 2(r), 10(1), 18, 19 and 36A – Absorption – Concerned workmen in industrial dispute referred to the CGIT have been discharging perennial nature of work against the regular permanent posts in the Corporation – Industrial dispute raised by similarly placed workmen, who were appointed between the period 01.01.1982 till 20.05.1985 was adjudicated on the points of dispute by the NIT with regard to the justification of absorption of the said workmen as permanent workmen in their respective posts – Upon the reference under Section 36A of the Act being made by the Ministry of Labour to Justice it clarified the same directs only for the absorption of the workmen concerned in the said dispute in the various offices, Divisions and Zones throughout the country and it does not amount to recruitment – SLP filed by respondent-corporation was disposed of since eight out of the nine workmen Unions said to be representing about 99% of the workers have entered into a compromise with the management of the Corporation without any prejudice to the rights and contentions of the members of the other Union, who have not entered into such compromise with the Corporation and the Award was neither set aside by the Court or substituted the compromise terms in the place of the Award – CGIT has rightly adjudicated the industrial dispute referred to it by the Central Government at the instance of the concerned workmen on the points of dispute, on the basis of pleadings and evidence on record and legal principles laid down in the Awards passed by the NIT – Awards passed by the NIT is binding upon the Corporation till it is substituted by another Award or replaced by another settlement in relation to the service conditions of the workmen of the Corporation in accordance with law as provided under Section 12 read with Section 18(3) of the Act or another Award that is required to be passed by the Jurisdictional CGIT in relation to the above subject matter after the Awards which are in operation are terminated by either of the parties as provided under Section 19(6) of the Act –Judgments of the High Court are clearly contrary to law and legal principles laid down by this Court hence the same liable to be set aside by allowing these appeals and restoring the Award of the CGIT.

MACT – Loss of Dependency – Future Prospectus

2015 STPL(Web) 228 SC (SC)(DB) - Judgment Date: 17-3-2015 - Compensation enhanced


Motor Vehicles Act, 1988, Section 168 – Compensation – Loss of Dependency – Future Prospectus – Enhancement of compensation – Deceased at the time of the accident was drawing a salary of Rs.4,214/- per month and was 45 years of age – She was employed as a permanent teacher in a government school she must have had at least 20-25 years of work experience at the time of her death -Just and proper to take the monthly income of the deceased at Rs.6,000/- per month – On addition of 30% to the income of the deceased towards future prospects monthly income for the calculation of future loss of dependency of the appellant would be Rs.7,800/- – Annual income comes to Rs.93,600/-and on deduction of 1/3rd of the annual income towards personal expenses and applying the appropriate multiplier of 14 future loss of dependency suffered by the appellant is calculated at Rs.8,73,600/- – - A meagre amount of only Rs.15,000/- for loss of estate , loss of love and affection and funeral expenses awarded by High Court enhanced to Rs.1,00,000/- towards loss of love and affection Rs.1,00,000/- towards loss of estate and of Rs.25,000/- towards funeral expenses -Rate enhance from 6% per annum to 9% per annum on the compensation amount -Total enhanced compensation payable to the appellant by the respondent-Insurance Company will be Rs.10,98,600/- instead of Rs.6,13,536/- as awarded by High Court – Directed to be with interest at the rate of 9% p.a. from the date of filing of the application till the date of payment.

Quashing of FIR – Cheating etc

2015 STPL(Web) 227 SC (SC)(DB) - Judgment Date: 17-3-2015 - FIR Quashed


Criminal Procedure Code, 1973, Section 482 – Penal Code, 1860, Section 420 – Quashing of Proceedings – Nothing to show that at the very inception there was any intention on behalf of the accused persons to cheat which is a condition precedent for an offence under Section 420 IPC – Held that the complaint does not disclose any criminal offence at all – Criminal proceedings should not be encouraged when it is found to be malafide or otherwise an abuse of the process of the court – Superior courts while exercising this power should also strive to serve the ends of justice – In view of these facts allowing the police investigation to continue would amount to an abuse of the process of court – High Court held to have committed an error in refusing to exercise the power under Section 482 Cr.P.C. to quash the proceedings.

Municipality – Construction in Violation of Sanctioned Plan

2015 STPL(Web) 226 SC (SC)(DB) - Judgment Date: 13-3-2015 - Directions issued


Municipal law – Sanctioned Plan – Construction done in Violation – Instead of 5 shops as per sanctioned plan, in all 9 shops have been constructed on the ground floor though the total construction on the ground floor is lesser than what had been sanctioned earlier – Shop owners have already submitted an application for regularisation of their 9 shops – Said application for regularisation directed to be considered by the respondent-Corporation within three months in accordance with law – If the construction of the shops cannot be regularised as per the bye-laws/regulations of the respondent- Corporation, the said construction shall not be regularized – Directed that till the final decision is taken on the application for regularisation, the shops in question shall not be demolished.

Sentence – Inadequacy of Sentence – Culpable Homicide

2015 STPL(Web) 225 SC (SC)(DB) - Judgment Date: 13-3-2015 - Sentence enhanced


Penal Code, 1860, Section 304 Part-II – Sentence – Inadequacy of Sentence – Case which have been proved by the prosecution in bringing home the guilt of the accused under Section 304 Part-II IPC undoubtedly show a despicable aggravated offence warranting punishment proportionate to the crime – Sentence of eleven months awarded by the High Court to the respondents for the said conviction held to be too meagre and not adequate and it would be travesty of justice -Though each of the appellant was directed to pay compensation of Rs.35000/- yet no amount of compensation could relieve the family of victim from the constant agony – Imposition of five years rigorous imprisonment on each of the respondent nos.2 to 4 for the conviction under Section 304 Part-II IPC would meet the ends of justice.

Trust – Allegations against trusties

2015 STPL(Web) 224 SC (SC)(DB) - Judgment Date: 12-3-2015 - Allegations not proved


Bombay Public Trust Act, 1950, Section 4D – Indian Trust Act, 1882, Sections 36-A, 46 and 47 – Appellant who is a permanent trustee filed an application before Joint Charity Commissioner(JCC) that respondent Nos.2 to 9 have allegedly continuously neglected their duties and have committed malfeasance by acting in breach of trust with respect to the Trust properties and they have also misappropriated and improperly dealt with the properties of the Trust from the year 2001 to 2006 – It has been further alleged by the appellant that they have also squandered the Trust money to the tune of crores of rupees and have committed serious acts of malfeasance – Appellant did not enter into the witness box before JCC – Similar charges as levelled against the respondent nos. 2 to 9 were also pending against appellant before the JCC for being the signatory to the Resolution dated 30.8.2001 in delegating her powers and functions to the deceased ‘V’, the JCC should not have accepted the evidence of the original respondent No.10 before the JCC and recorded the findings on charges in his order – Rightly held by JCC based on facts and evidence on record that the guilt of respondent Nos. 2 to 9 are not proved and has also held that they are negligent for only delegating their powers and functions to the Managing Trustee, deceased ‘V’ but the charges levelled against them are not proved as they are not responsible for the alleged transactions, therefore, there is no complicity on the allegations made against them – Same cannot be said to be arbitrary and unreasonable in nature – High Court rightly concurred with the findings of the JCC in exonerating the respondent nos. 2 to 9 from the charges levelled against them – Since the appeal against the findings and penalties imposed against the deceased ‘V’ is pending before the Civil Court which is being pursued by his legal representatives and therefore, the Civil Court is required to examine the said case independently without being influenced by the observations and reasons assigned in this judgment.

SARFAESI – Recovery of Loan

2015 STPL(Web) 223 SC (SC)(DB) - Judgment Date: 10-3-2015 - Direction to decide appeal within three months


Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 –Recovery of Loan – Appeal filed by appellant DRT and of the Respondent-Bank before the Gujarat State Cooperative Tribunal pending – Aforesaid Tribunals directed to decide the appeals pending before them within three months – During the pendency of afore-stated appeals before the Appellate Authorities, no coercive steps shall be taken for recovery of the amount under the provisions of the SARFAESI Act – Question of law with regard to applicability of the SARFAESI Act, 2002 and the Multi-State Cooperative Societies Act, 2002, kept open.

SARFAESI – Recovery of Loan

2015 STPL(Web) 222 SC (SC)(DB) - Judgment Date: 10-3-2015 - Direction to decide case in six months


Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 – Recovery of Loan – Dispute with regard to the amount payable by the appellants pending before the Joint Registrar of the Cooperative Societies –Direction to Additional Registrar to decide the case within six months – Till the aforesaid proceedings are completed, no coercive steps shall be taken under the provisions of the SARFAESI Act, for recovery of the amount.

Administration of Justice – Appeal pending from 1988

2015 STPL(Web) 221 SC (SC)(DB) - Judgment Date: 10-3-2015 - Direction to dispose appeals within four months


Constitution of India, Article 32 – Administration of Justice – Two appeals filed by the petitioner of the year 1988 pending before the First Cooperative Court at Mumbai – Direction to the said Court to dispose of the aforesaid appeals within four months.

SARFAESI – Appeal – Pre Deposit

2015 STPL(Web) 220 SC (SC)(DB) - Judgment Date: 10-3-2015 - Payment under interim order already made so no pre deposit


Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 – Appeal – Pre Deposit – Interim order by DRAT to deposit Rs. 65 lakhs by petitioner as pre deposit – Writ Petition filed in Apex Court – and in pursuance of an interim order passed by the Apex Court, a sum of Rs.2 crores has been paid by the petitioners to the respondent-Bank and the said amount has been kept in a separate account by the respondent-Bank – Held that it would not be necessary for the petitioners to pay a further sum of Rs.65 lakhs as directed by the Tribunal -Tribunal shall decide the appeal which is pending before it, preferably within three months – During the pendency of afore- stated appeal before the DRAT, no coercive steps shall be taken for recovery of the amount under the provisions of the SARFAESI Act.

Anticipatory Bail – Teesta Setalvad Case

2015 STPL(Web) 219 SC (SC)(DB) - Judgment Date: 19-3-2015 - Referred to Larger Bench


Criminal Procedure Code, 1973, Section 438 – Penal Code, 1860, Sections 420, 406, 468, 120B – Information and Technology Act, 2000, Section 72A – Anticipatory Bail – Allegation appellants, the wife and husband, trustees of two trusts should be taken into custody for custodial interrogation on the bedrock of allegations made alleging that the trustees along with others had raised few crores of rupees as donations from certain donors from India and abroad but they neither built the museum as promised nor spent the amount for the benefit of the members of the Gulbarga Society nor did they fulfil the assurance made to the victims as regards the sale of their properties but expended on themselves and committed offences punishable under Sections 420, 406, 468, 120B IPC and Section 72(A) Act, 2000 – Whether liberty on the one hand and fair and effective investigation on the other, make out a case for extending the benefit under Section 438 CrPC – Held that having stated about the value of liberty, the concept of regulated freedom, the societal restriction, the supremacy of the law, the concept of anticipatory bail and the assertion of the prosecution about the non- cooperation of the appellants in the investigation, and the asseverations made by the appellants, matter directed to be placed before Chief for referring the matter to a larger Bench.

Dacoity – Conviction upheld

2015 STPL(Web) 218 SC (SC)(DB) - Judgment Date: 19-3-2015 - Conviction


Penal Code, 1860, Sections 395, 450 and 342 – Appeal against Conviction – Appreciation of Evidence – Concurrent findings by both the Courts below on the basis of evidence on recired that PW 1 ‘S’ was wrongfully arrested after the Indian and foreign currency was robbed by the appellant ‘S’, who came with fire arm in the shop and premises of M/s. ‘W’, and out of the robbed sum, part of it was falsely shown recovered from ‘S’ by ‘naka’ party of police officers – Case registered against ‘S’ was found false after the senior police officer, who held enquiry on the complaint of PW-1 ‘S’ – No charge sheet was filed against complainant ‘S’ PW-1 – Evidence of prosecution witnesses, which include that of the neighbouring shopkeepers and the fact that the foreign currency shown to have been recovered from ‘S’ were actually validly held by him with other currencies as he had a valid licence, to deal with foreign exchange, issued by Reserve Bank of India – Having re-assessed the entire evidence on record do not find any illegality committed by the trial court in convicting the accused under Sections 395, 450 and 342 IPC, which is rightly affirmed, with modification of sentence, by the High Court.

Quashing of Complaint – Dishonour of Cheque – Disputed question of Facts

2015 STPL(Web) 217 SC (SC)(DB) - Judgment Date: 19-3-2015 - Quash set aside


Negotiable Instruments Act, 1881, Section 138, 139 and 140 – Criminal Procedure Code, 1973, Section 482 – Dishonour of Cheque – Stop Payment – Quashing of Complaint – In exercise of powers under Section 482 Cr.P.C. High Court quashed Criminal Complaints filed by the appellant in respect of offence punishable u/s 138 NI Act by accepting factual defences of the accused which were disputed ones – Such defences, if taken before trial court, after recording of the evidence, can be better appreciated – Held that the High Court has committed grave error of law in quashing the criminal complaints.

Co operative Society – Removal of Chairperson – When no provision of removal in Law

2015 STPL(Web) 216 SC (SC)(DB) - Judgment Date: 19-3-2015 - Removal by same procedure by which he was elected to office


Gujarat Cooperative Societies Act, 1961, Sections 2(5), 2(14), 4, 73, 76B – Gujarat Cooperative Co-operative Milk Marketing Federation Limited Bye-laws, Bye-law 18.2, 23, 13.1, 18.1 – Constitution of India, Article 243ZH(b) – Chairperson of Federation – Motion of no Confidence – Removal from Post of Chairperson – Bye-law 1.2, 23 of the first respondent, pertaining to the office of the Chairperson of the Federation falling vacant before the expiry of his elected term – Removal by no confidence is not expressly provided in the Bye-laws – Neither is there any such provision in the Act or Rules – Only enabling provision is Bye-law 18.2 which mandates that in case the office of the Chairperson of the Federation falls vacant before the expiry of his term for any reason, the Board has to elect a new Chairperson for the remaining term – Cooperative society registered under the Central or the State Act is bound to function as a democratic institution and conduct its affairs based on democratic principles. Democratic functioning on democratic principles is to be reflected in the respective Acts or Rules or Bye-laws both on the principle and procedure – If not, it is for the court to read the democratic principles into the Act or Rules or Bye-laws – If a procedure is prescribed in any Act or Rule or Bye-law regarding election of an office bearer by the Board, as defined under Article 243ZH(b) of the Constitution of India, and for removal thereof, by way of a motion of no confidence, the same procedure has to be followed – In case there is no express provision under the Act or Rules or Bye-laws for removal of an office bearer, such office bearer is liable to be removed in the event of loss of confidence by following the same procedure by which he was elected to office.

Temporary Injunction

2015 STPL(Web) 215 SC (SC)(DB) - Judgment Date: 17-3-2015 - Matter to be decided by HC


Civil Procedure Code, 1908, Order 39 Rules 1&2 – Temporary Injunction – Respondents sought an order restraining the appellants herein from attending and voting at a meeting of the Board of Directors scheduled on 13th October, 2014 – Trial Court declined to grant the interim relief as sought for -Appellants took a definite stand both before the trial Court as well as before the High Court that the suit itself is not maintainable and the remedy, if any, to the respondents herein is to approach the Company Law Board under Section 186 of the Companies Act, 1956 – On the question of a prima facie case and balance of convenience e High Court recorded a cryptic conclusion without recording any reasons – But the High Court went on to issue certain directions – Held that directions in paras 7.2 and 7.3 are inconsistent with the directions in para 7.4. – Apart from that, the fact that the orders of status quo were granted by the Chamber Judge during vacation, which have been continued from time to time without further consideration regarding the tenability of such orders, is no ground for continuing such orders -Impugned order liable to be set aside – Having regard to the various contentions raised by the parties, it is better that the appeal before the High Court itself is disposed of on merits expeditiously.

Coal Mining – Royalty – Refund

2015 STPL(Web) 214 SC (SC)(FB) - Judgment Date: 17-3-2015 - Refund allowed


Mines and Minerals (Development and Regulation) Act, 1957, Section 9 r/w Second Schedule – Mineral Concession Rules, 1960, Rule 64B and 64C – Coal Mining – Royalty – Payment of – MMDR Act has to be read and understood in conjunction with the Second Schedule to the MMDR Act – In so far as coal is concerned, its “removal from the seam in the mine and extracting the same through the pit’s mouth to the surface [satisfies] the requirement of Section 9 in order to give rise to liability for royalty” – Nothing to indicate in Rule 64B and Rule 64C of the MCR that coal has been put on a different pedestal from other minerals mentioned in the MMDR Act read with the Second Schedule thereto – It is difficult to accept the view canvassed by the Union of India that these rules “may not be particularly applicable on coal minerals – With effect from 25th September, 2000 when these rules were inserted in the MCR, royalty is payable on all minerals including coal at the stage mentioned in these rules, that is, on removal of the mineral from the boundaries of the leased area – For the period prior to that, the law laid down in Central Coalfields Ltd. will operate, as far as coal is concerned, from 10th August, 1998 when SAIL was decided, though for different reasons – TISCO held entitled to refund of royalty paid from 10th August, 1998 to 25th September, 2000 – However, this amount need not be physically refunded but should be adjusted pro rata against future payments of royalty by TISCO over the next one year – TISCO is not entitled to refund of royalty paid after 25th September, 2000 – The royalty paid by TISCO after 25th September, 2000 was correctly paid and in accordance with Rule 64B and Rule 64C of the MCR, which have not been challenged by TISCO.

Suppression of Material Fact – Transfer of Investigation

2015 STPL(Web) 213 SC (SC)(DB) - Judgment Date: 17-3-2015 - Order set aside


Criminal Procedure Code, 1973, Section 173(8), 397, 482 – Investigation – Transfer of Investigation – Direction for – Suppression of material fact – Respondent no.1 did not disclose material facts which could have revealed that his earlier application for further investigation by CBCID had been rejected at all stages and the S.L.P. had also been dismissed by this Court – Impugned order passed by High Court transferring case to the file of CBCID, Chennai for investigation on account of suppression of material facts by respondent and under a wrong impression that Crime No.147 of 2009 was still pending before the police authorities at the investigation stage though charge-sheet filed – Accordingly impugned order liable to be set aside.

Backward Class – Inclusion of Jats in Central List

2015 STPL(Web) 212 SC (SC)(DB) - Judgment Date: 17-3-2015 - Order set aside


Constitution of India, Article 16(4), 15(4), 32 – National Commission for Backward Classes Act, 1993, Section 9 and 11 – National Commission for Backward Classes (Power to Review Advice) Rules, 2011, Rule 4 – Backward Class – Inclusion Jats in Central List – Judicial Review – Held that perception of a self-proclaimed socially backward class of citizens or even the perception of the “advanced classes” as to the social status of the “less fortunates” cannot continue to be a constitutionally permissible yardstick for determination of backwardness, both in the context of Articles 15(4) and 16(4) of the Constitution – Neither can any longer backwardness be a matter of determination on the basis of mathematical formulae evolved by taking into account social, economic and educational indicators – Determination of backwardness must also cease to be relative; possible wrong inclusions cannot be the basis for further inclusions but the gates would be opened only to permit entry of the most distressed – Any other inclusion would be a serious abdication of the constitutional duty of the State – Judged by the aforesaid standards held that inclusion of the politically organized classes (such as Jats) in the list of backward classes mainly, if not solely, on the basis that on same parameters other groups who have fared better have been so included cannot be affirmed – Cannot agree with the view taken by the Union Government that Jats in the 9 (nine) States in question is a backward community so as to be entitled to inclusion in the Central Lists of Other Backward Classes for the States concerned – View taken by the NCBC to the contrary is adequately supported by good and acceptable reasons which furnished a sound and reasonable basis for further consequential action on the part of the Union Government – Notification dated 4.3.2014 cannot be justified – Accordingly the aforesaid notification bearing No. 63 dated 4.3.2014 including the Jats in the Central List of Other Backward Classes for the nine States liable to be set aside and quashed. The writ petitions are accordingly allowed.

Service Law – Pay Scale – Discrimination

2015 STPL(Web) 211 SC (SC)(DB) - Judgment Date: 17-3-2015 - Discriminatory order struck down


Constitution of India, Articles 14, 16 and 226 – Madhya Pradesh Revision of Pay Rules, 1990 – Kramonnati Scheme – Higher pay scale after completion of 12 and 24 years of service – Policy matter – Discrimination – Judicial review – Appellants have not been able to explain why it chose to deny teachers the benefit of the second Kramonnati while granting this benefit to all other employees, thus discriminating against them and violating their fundamental rights enshrined in Articles 14 and 16 of the Constitution – No explanation is forthcoming for granting the second Kramonnati with effect from 1.8.2003 – This is neither the date in the original scheme nor justifiable on the basis of any other material available on the record – Many employees had completed twenty four years of service by 1999; therefore, in postponing their second Kramonnati by four years, the Appellants have departed from the basic object of the Scheme – 3.9.2005 Order failed to explain the basis of this decision, and is thus arbitrary in nature and discriminatory towards the Respondents and others in their position – No illegality in the Impugned Judgments – Appeals liable to be dismissed.

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