Civil Procedure – Jurisdiction of Civil Court – Rejection of Plaint

2015 STPL(Web) 141 SC (SC)(DB) - Judgment Date: 23-2-2015 - Plaint rightly rejected

OM AGGARWAL Vs. HARYANA FINANCIAL CORPORATION AND OTHERS

Civil Procedure Code, 1908, Order 7 Rule 11(d) – State Financial Corporation Act, 1951 – Haryana Public Moneys (Recovery of Dues) Act, 1979, Section 2(b)(c)(d) and 3(4) – Bar of Jurisdiction of Civil Court – Rejection of Plaint – It is clear by mere reading of the plaint that firstly, the plaintiff was a “defaulter” as defined under Section 2(c) of the Act 1979 – Secondly, the investment made by defendant No.1- Corporation pursuant to an agreement dated 16.07.1996 was in the nature of the “financial assistance” as defined under Section 2 (d) of the Act, 1979 – Thirdly, the demand raised by the respondent was in relation to the amount given by way of financial assistance under Section 3 of the Act and lastly, the subject matter of the suit viz., challenge to the legality of the agreement and the demand fell under Section 3(4)(a) and (b) of the Act 1979 – Held that the provisions of the Act, 1979 get attracted to the case in hand which, in turn, attract the bar contained in sub-section (4) of Section 3 in filing the civil suit by the defaulter – The suit is, therefore, apparently barred by virtue of bar contained in Section 3(4) of the Act, 1979 – It was thus rightly dismissed by the courts below by taking recourse to Order VII Rule 11 (d) of the Code.

MACT – Just Compensation

2015 STPL(Web) 140 SC (SC)(DB) - Judgment Date: 20-2-2015 - Enhancement of compensation by HC reduced

NEW INDIA ASSURANCE CO. LTD. Vs. DR. SUKANTA KUMAR BEHERA & ORS.

Motor Vehicles Act, 1988, Section 168 – Compensation – Just Compensation – Injury Case – Compensation as awarded to respondent a practicing medical practitioner by Tribunal enhanced from Rs. 4,01,414/- to Rs.55,00,000/- by High Court for the injuries sustained and permanent disability incurred by him in the accident dated 9.9.2001 – While awarding compensation of Rs.55,00,000/- there is no discussion and computation done by the High Court – It is necessary to make computation of compensation to be awarded on account of pecuniary and non-pecuniary heads – Claimant was getting Rs.23,000/- per month at the time of accident – He was getting non-practitioner allowance also in addition to the salary – It would be appropriate to take his salary at Rs.25,000/- per month – Considering the fact that 60% permanent disability has been incurred and considering over all injuries caused, there is a loss of working capacity to the said extent – Monthly loss of earning capacity comes to Rs.15,000/- – Multiplier of 16 is applicable at the age of 36 years – Expenditure must have been incurred in 8 days when claimant was treated in Shanti Hospital when surgery of right leg was performed and two plates were inserted which is quantified at Rs.20,000/- – There was loss of earning during course of treatment which has been determined by the Claims Tribunal and medical expenditure in SCB Medical College and Hospital, Cuttack comes to Rs.66,566/- – Compensation for pain and suffering, expenditure on attendant and on special diet has also to be awarded – The compensation after deducting medical reimbursement already received, is awarded Rs. 35,00,000/- with interest @ 6% p.a.

Arbitration Award – Challenge as to – Jurisdiction

2015 STPL(Web) 139 SC (SC)(DB) - Judgment Date: 20-2-2015 - No Jurisdiction with other State Court

BHANDARI UDYOG LIMITED Vs. INDUSTRIAL FACILITATION COUNCIL AND ANOTHER

Arbitration and Conciliation Act, 1996, Section 34, 42 – Civil Procedure Code, 1908, Section 20 – Arbitral Award – Challenge as to – Jurisdiction – Arbitration proceeding has been conducted within the jurisdiction of Raichur court, which has jurisdiction as per Section 20 CPC and is subordinate to the High Court of Karnataka which entertained Section 11 Application – Award cannot be challenged before a Court subordinate to the High Court of Bombay – Exercise of jurisdiction by such court shall be against the provision of Section 42 of the Act – District Court at Latur and High Court of Bombay have committed error of law in entertaining the application under Section 34 of the Act and dismissing the revision petition – Order passed by the High Court liable to be set aside.

Criminal Procedure – Statutory Bail

2015 STPL(Web) 138 SC (SC)(DB) - Judgment Date: 20-2-2015 - No Statutory Bail

RAVI PRAKASH SINGH @ ARVIND SINGH Vs. STATE OF BIHAR

Criminal Procedure Code, 1973, Section 167(2) – Statutory Bail – The appellant surrendered before the Magistrate on 5.7.2013 – It is also not disputed that on 3.10.2013 the appellant moved an application for his release on bail under proviso (a) to sub- section (2) of Section 167 of the Code – However, the order sheet of the case shows that there is endorsement of the Magistrate on 3.10.2013 that the charge sheet has already been received – Date 5.7.2013 is to be excluded and, as such, the charge sheet was filed on ninetieth day, i.e., 3.10.2013 – Therefore, there is no infringement of Section 167(2) of the Code – High Court has not erred in law in dismissing the petition under Section 482 of the Code, and upholding the refusal of bail to appellant prayed by him under Section 167(2) of the Code.

Prasar Bharati – Live Telecast of Cricket World Cup Matches

2015 STPL(Web) 137 SC (SC)(DB) - Judgment Date: 20-2-2015 - SLP to be heard at an early date.

PRASAR BHARATI Vs. BOARD OF CONTROL FOR CRICKET IN INDIA & ORS.

Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act, 2007, Section 3 – Cable Television Networks (Regulation) Act, 1995, Section 8 – Live broadcast of ICC World Cup 2015 matches – Submissions made on behalf of the parties on the merits of the controversy not considered as the same may have the effect of prejudicing either of the parties – Two suggestions put forward by respondents repelled – Interim order passed earlier to the effect that the impugned order dated 04.02.2015 of the High Court shall remain suspended should continue until further orders -Special leave petitions directed to be heard at an early date and directed to list the same on a Tuesday in the month of July, 2015.

Arbitration – Jurisdiction

2015 STPL(Web) 136 SC (SC)(DB) - Judgment Date: 20-2-2015 - Court to see whether jurisdiction is ousted

SUNDARAM FINANCE LIMITED AND ANOTHER Vs. T. THANKAM

Arbitration and Conciliation Act, 1996, Section 8 – Arbitration – Jurisdiction – Once an application in due compliance of Section 8 of the Arbitration Act is filed, the approach of the civil court should be not to see whether the court has jurisdiction – It should be to see whether its jurisdiction has been ousted – Once it is brought to the notice of the court that its jurisdiction has been taken away in terms of the procedure prescribed under a special statue, the civil court should first see whether there is ouster of jurisdiction in terms or compliance of the procedure under the special statute – The general law should yield to the special law – generalia special bus non derogant – In such a situation, the approach shall not be to see whether there is still jurisdiction in the civil court under the general law – Such approaches would only delay the resolution of disputes and complicate the redressal of grievance and of course unnecessarily increase the pendency in the court.

Service Law – Compassionate Appointment

2015 STPL(Web) 135 SC (SC)(DB) - Judgment Date: 20-2-2015 - No appointment without qualification

RAJASTHAN STATE ROAD TRANSPORT CORPORATION AND OTHERS Vs. REVAT SINGH

Constitution of India, Articles 14, 16 and 226 – Compassionate Appointment – Respondent was not qualified for the post of driver – High Court held to have erred in law in directing the appellant to consider his case against the post of driver of heavy vehicle – However, the respondent shall be allowed to work on the post of Artisan Grade III as offered to him.

Municipality – Change of Leader of Aghadi

2015 STPL(Web) 134 SC (SC)(DB) - Judgment Date: 20-2-2015 - Change by group only

SUNIL HARIBHAU KALE Vs. AVINASH GULABRAO MARDIKAR AND OTHERS

Maharashtra Local Authority Members’ Disqualification Act, 1986, Section 2(a), 2(i), 2(j) – Maharashtra Local Authority Members Disqualification Rules, 1987, Rule 2(b-1) – Change of Leader of Aghadi – On letter written by General Secretary of a political party – Held that once an aghadi (group) is formed and duly recognized by the Divisional Commissioner, it becomes a municipal party in terms of Section 2(i) of the Act – Once original political parties form a municipal party by way of an aghadi, for all purposes, the group leader is chosen by the municipal party (aghadi) only – Rules do not provide for nomination of group leader – Similarly, the group leader of the aghadi can be changed only by the group and not by one of the political parties, big or small, belonging to the aghadi – In a democracy, a leader is not imposed; leader is elected – Once the birth of a leader in a group is by way of election by the group, the group leader thus elected cannot be replaced otherwise than through the very same process of the election in the group, in the absence of any rules to the contrary – Impugned order of the High Court taking the view upheld that the General Secretary of one of the political parties forming the aghadi (group), was not competent to make a request to the Divisional Commissioner to register change of the group leader and that the Divisional Commissioner acted wholly without jurisdiction in registering the change as requested by one of the political parties.

Murder – Offence Modified

2015 STPL(Web) 133 SC (SC)(FB) - Judgment Date: 19-2-2015 - Offence modified to Culpable Homicide

SANJEEV Vs. STATE OF HARYANA

Penal Code, 1860, Exception 4 to Section 300 – Murder – Nature of Offence – From the evidence of PW-12, it reflects that while making extra judicial confession, the appellant narrated that after both he and ‘R’ got drunk, they engaged into an altercation whereafter scuffle took place, and the appellant caused injuries on the forehead and chest of the deceased – This fact gets corroborated from the statement of PW-13, Dr. who recorded wound measuring 22 x 02 x 2 to .5 cm in the medical report soon after the time of the incident, on the person of the appellant – When the prosecution evidence relating to extra judicial confession made before PW-12, is believed by the courts below to examine as to whether act committed by the accused constitutes culpable homicide amounting to murder or not, they should have read the statement as a whole, and the circumstances, in which the injuries were caused by the appellant to the deceased, should not have been ignored – Held that the act committed by the appellant in the present case is covered by Exception 4 to Section 300 IPC, i.e., culpable homicide not amounting to murder, as such the same is, punishable under Section 304 Part I, IPC – The conviction and sentence recorded by the trial court and affirmed by the High Court in respect of offence punishable under Section 302 IPC against the appellant, liable to be set aside – Instead, the appellant convicted under Section 304 Part I, IPC and sentenced to undergo imprisonment for a period of ten years and to pay fine of Rs.5000/-.

MACT – Compensation

2015 STPL(Web) 132 SC (SC)(DB) - Judgment Date: 18-2-2015 - Compensation enhanced

JAKIR HUSSEIN Vs. SABIR & ORS.

Motor Vehicles Act, 1988, Section 168 – Compensation – Injury Case – Doctor has assessed the permanent disability of the appellant at 55% -It is important to consider the relevant fact namely that the appellant is a driver and driving the motor vehicle is the only means of livelihood for himself as well as the members of his family – High Court has clearly observed that his right hand was completely crushed and deformed – Therefore, clearly when it comes to loss of earning due to permanent disability, the same may be treated as 100% loss caused to the appellant since he will never be able to work as a driver again – The contention of the respondent Insurance Company that the appellant could take up any other alternative employment is no justification to avoid their vicarious liability – Loss of earning determined at Rs.54,000/- per annum – Thus, by applying the appropriate multiplier as per the principles laid down by this Court in the case of Sarla Verma, the total loss of future earnings of the appellant will be at Rs.54,000 X 16 = Rs.8,64,000/-.

Cricket – Spot fixing – Conflict of interest

2015 STPL(Web) 131 SC (SC)(DB) - Judgment Date: 22-1-2015 - Provisions of regulation set aside. Directions issued.

BOARD OF CONTROL FOR CRICKET IN INDIA Vs. CRICKET ASSOCIATION OF BIHAR & ORS.

BCCI Regulations for Players, Team Officials, Managers, Umpires & Administrators, Regulation 6.2.4 – Challenge to validity of Regulation 6.2.4 – Conflict of interest – Whether Regulation 6.2.4 to the extent it permits administrators to have commercial interest in the IPL, Champions League and Twenty-20 events is legally bad? Question answered in affirmative – Held that Amendment to Rule 6.2.4 permitting Administrators of BCCI to acquire or hold commercial interests in BCCI like IPL, champions league and T-20 held to be bad – Amendment to Rule 6.2.4 whereby the words ‘excluding events like IPL or Champions League Twenty 20′, were added to the said rule is hereby declared void and ineffective – The judgment and order of the High Court of Bombay in PIL No. 107 of 2013 is resultantly set aside and the said writ petition allowed to the extent indicated above.

Corruption – Conviction upheld

2015 STPL(Web) 130 SC (SC)(DB) - Judgment Date: 21-1-2015 - Conviction

VINOD KUMAR Vs. STATE OF PUNJAB

Prevention of Corruption Act, 1988, Section 7, 13(2) and 20 – Corruption – Bribery case – Presumption – Appeal against conviction – Hostile witness – Testimony of – Plea that complainant PW 5 has not supported the prosecution the conviction could not have been ordered repelled – PW6 has supported the recovery in entirety- He has stood firm and remained unshaken in the cross-examination and nothing has been elicited to dislodge his testimony- The evidence of PW6 and PW7 have got corroboration from PW8 – He in all material particulars has stated about the recovery and proven the necessary documents pertaining to the test carried with phenolphthalein powder -The fact remains that the appellant’s pocket contained phenolphthalein smeared currency notes when he was searched -The currency notes that have been recovered from the right side of the pant pocket were actually prepared by PW8 by smearing them with phenolphthalein powder – The appellant was caught red-handed with those currency notes, in is statement recorded under Section 313 of CrPC he has taken the plea that he is innocent and has been falsely implicated due to animosity – No explanation has been given as regards the recovery -From the above facts, legitimately a presumption can be drawn that the accused-appellant had received or accepted the said currency notes on his own volition – The factum of presumption and the testimony of PW6 and 7 go a long way to show that the prosecution has been able to prove demand, acceptance and recovery of the amount -The learned trial Judge and the High Court have appositely concluded that the charges leveled against the accused have duly been proven by the prosecution – It is not a case that there is no other evidence barring the evidence of the complainant – On the contrary there are adequate circumstances which establish the ingredients of the offences in respect of which he was charged.

Appointment – Reservation – Retrospective effect

2015 STPL(Web) 129 SC (SC)(DB) - Judgment Date: 18-2-2015 - No retrospective effect

M. SURENDER REDDY Vs. GOVT. OF ANDHRA PRADESH AND ORS.

Constitution of India, Clause (1) and (2) of Article 371-D – Andhra Pradesh Public Employment (Organization of Local Cadres and Regulation of Direct Recruitment) Order, 1975 – Andhra Pradesh Public Employment (Organization of Local Cadres and Regulation of Direct Recruitment) Amendment) Order, 2001 dated 13.12.2001 – Recruitment – Appointment – Reservation – Amendment of Presidential order – Prospective or retrospective – By Presidential order, 1975 the State Government has not been empowered to pass any order under sub-paragraph (1) of paragraph 3 or paragraph 8 with retrospective effect – In absence of any terms or the intention to make it retrospective date, the G.O.Ms. No.124 dated 7th March, 2002 cannot be given effect from a retrospective date – Held that the State Government cannot pass any order amending a procedural law regarding reservation in the matter of selection to posts, with retrospective effect, once the procedure of selection starts – The G.O.Ms.No.124 dated 7th March, 2002 is prospective and is not applicable to the process of selection started pursuant to Advertisement No.10 of 1999 including the 973 executive posts which were ordered to be filled up by the High Court pursuant to the advertisement – The Tribunal held to have erred in directing the APPSC to re-caste the merit list pursuant to G.O.Ms.No.124 dated 7th March, 2002- The High Court by the impugned judgment dated 27th December, 2004 rightly held that the order passed by the Court will not affect the appointments already made to the executive post between 2001-2002 but erred in holding that the selection is to be made in accordance with G.O.Ms.No.124 dated 7th March, 2002 – Impugned orders passed by the Andhra Pradesh Administrative Tribunal and the impugned common judgment dated 27th December, 2004 and the impugned common order dated 28th December, 2004 passed by the Division Bench of the High Court liable to be set aside -Directed the respondents to fill up the rest of the posts including the posts of Municipal Commissioners Grade-III, Asstt. Commercial Tax Officers, Asstt. Labour Officers in executive cadre and Asstt. Section Officers in non-executive cadre, which are vacant, as per President Order, 1975 and the Government orders in consonance with the Presidential Order which were prevailing in the year 1999 when the Advertisement was issued- The inter se seniority between the persons appointed in the 1st round and the persons appointed afterwards in the same cadre, if any, shall be decided by the appropriate authority in accordance with the rules, depending on the merit ranking obtained by them.

Abetment of suicide – Cruelty – Extra marital relationship by husband

2015 STPL(Web) 128 SC (SC)(DB) - Judgment Date: 18-2-2015 - Acquittal

GHUSABHAI RAISANGBHAI CHORASIYA & ORS. Vs. STATE OF GUJARAT

Penal Code, 1860, Section 498A and 306 – Abetment of suicide – Cruelty – Extra marital relationship by husband – Held that the first limb of Section 498A, which refers to cruelty, has nothing to do with demand of dowry – In the present case, in fact, there is no demand of dowry -The deceased was pained and disturbed as the husband was having an illicit affair with the appellant no.4 – The husband and the wife had started living separately in the same house and the deceased had told her sister that there was severance of status and she would be going to her parental home after the ‘Holi’ festival -There is some evidence about the illicit relationship and even if the same is proven, cruelty, as envisaged under the first limb of Section 498A IPC would not get attracted – It would be difficult to hold that the mental cruelty was of such a degree that it would drive the wife to commit suicide – Mere extra-marital relationship, even if proved, would be illegal and immoral, but it would take a different character if the prosecution brings some evidence on record to show that the accused had conducted in such a manner to drive the wife to commit suicide – In the instant case, the accused may have been involved in an illicit relationship with the appellant no.4, but in the absence of some other acceptable evidence on record that can establish such high degree of mental cruelty, the Explanation to Section 498A which includes cruelty to drive a woman to commit suicide, would not be attracted – On the basis of the said evidence, it is difficult to sustain the conviction under Sections 306 and 498A IPC.

Income Tax – Deduction of tax at source

2015 STPL(Web) 127 SC (SC)(DB) - Judgment Date: 18-2-2015 - Payment taxable. TDS required to be deducted.

GVK INDUSTRIES LTD. & ANR. Vs. THE INCOME TAX OFFICER & ANR.

Income Tax Act, 1961, Section 9(1)(vii) Explanation 2 – Success fee – Payment to Non Resident Company not having any office in India – Consultancy service – Deduction of tax at source – NRC had acted as a consultant – It had the skill, acumen and knowledge in the specialized field i.e. preparation of a scheme for required finances and to tie-up required loans – On the basis of nature of activities undertaken by the NRC it can be said with certainty that it would come within the ambit and sweep of the term ‘consultancy service’ and, therefore, it has been rightly held that the tax at source should have been deducted as the amount paid as fee could be taxable under the head ‘fee for technical service’ – Once the tax is payable paid the grant of ‘No Objection Certificate’ was not legally permissible – The judgment and order passed by the High Court upheld.

Service Law – Appointment in the unfilled reserve vacancies

2015 STPL(Web) 126 SC (SC)(DB) - Judgment Date: 17-2-2015 - Appointments valid

NAWAL KISHORE MISHRA Vs. HIGH COURT OF JUDICATURE AT ALLAHABAD THROUGH ITS REGISTRAR GENERAL

Uttar Pradesh Public Services (Reservation) for Scheduled Casts and Scheduled Tribes and Other Backward Classes Act, 1994, Section 3(2) – Uttar Pradesh Higher Judicial Service Rules, 1975, Rule 7, 8(2) – Appointment – Post of Direct Recruit District Judges – Reservation – Assuming the Reservation Act of 1994 was validly adopted by the High Court, yet by ignoring Section 3(2) of the said Act, was the High Court justified in filling up the posts by way of promotion of ‘in service candidates’? – Held that the action of the High Court in having resorted to filling up of the unfilled reserved vacancies by taking umbrage under Rule 8(2) was perfectly justified – The said action of the High Court in having filled up those unfilled reserved vacancies of direct recruitment of the year 2009 was stated to have been made by promoting the in-service candidates -Such a course adopted by the High Court was in order, as the proviso to Rule 8(2) specifically mandates that while fixing the number of vacancies to be allotted to the quota of direct recruitment at the next recruitment, it should be raised accordingly -Without disturbing whatever promotions already made by resorting to Rule 8(2), the High Court can be permitted to provide that number of vacancies which remained unfilled in the year 2009 in the reserved category of direct recruit source by adding that number of vacancies in the recruitment to be made in the future years until such number of vacancies of unfilled reserved category pertaining to 2009 are filled.

Service Law – Seniority – Promotion

2015 STPL(Web) 125 SC (SC)(DB) - Judgment Date: 17-2-2015 - Direction to consider for promotion set aside

UNION OF INDIA & ORS. Vs. V.K. KRISHNAN & ORS.

Indian Railway Establishment Manual, 1989 paras 180, 189 and 320 – Seniority – Promotion – Respondent no.1 was in the lowest grade of group D, whereas respondent nos.2 and 3, though having lesser length of service in group D, were in the higher grade of group D and therefore, they got promotion to the post of Pointsman B in group C – As respondent nos.2 and 3 were employees working in the higher grade of group D than respondent no.1, respondent no.1 cannot make any grievance with regard to promotion of respondent nos.2 and 3 to a higher post in group C – The Tribunal as well as High Court committed an error by giving a direction to the appellant to consider the case of respondent no.1 for promotion to the post to which respondent nos.2 and 3 were promoted – Impugned judgment of High Court affirming the order of the Tribunal liable to be set aside – Also directed that according to the provisions of the aforestated paras contained in the Manual, the appellants shall prepare different seniority lists for employees working in different grades.

Employee Compensation – Liability of insurer

2015 STPL(Web) 124 SC (SC)(DB) - Judgment Date: 17-2-2015 - Insurer liable

PRAVEENBHAI S. KHAMBHAYATA Vs. UNITED INDIA INSURANCE COMPANY LTD. & ORS.

Constitution of India, Article 142 – Employers Compensation Act, 1923, Section 4 – Motor Vehicles Act, 1988, Section 147 – Compensation – The point falling for consideration is that even if the vehicle No. GJ-3U-5391 had a valid insurance policy, whether the first respondent- insurance company is liable to indemnify the owner of the vehicle for death of a person who was employed by him in another vehicle – Considering the facts of the case, both the vehicles were parked in the same space and it can be safely stated that the deceased cleaner was filling the water in the radiator of vehicle no.GJ-3U-5391 only on the direction of the employer and thus the cleaner was working in the course of employment – Both the vehicles were insured with the first respondent- insurance company and the owner being one and the same and since the deceased being the cleaner and the claimants hailing from the lowest strata of society, in exercise of extra-ordinary jurisdiction under Article 142 of the Constitution of India, it is appropriate to direct the first respondent-insurance company to indemnify the appellant for the death of deceased.

Hindu Minority and Guardianship – Custody of minor

2015 STPL(Web) 123 SC (SC)(DB) - Judgment Date: 17-2-2015 - Custody of minor transferred to Mother

ROXANN SHARMA Vs. ARUN SHARMA

Hindu Minority and Guardianship Act, 1956, Section 6(a) proviso – Custody of minor – Proviso to Section 6 (a) provides that the custody of a minor who has not completed the age of 5 years shall ordinarily be with the mother – The use of the word “ordinarily” cannot be over-emphasised – It ordains a presumption, albeit a rebuttable one, in favour of the mother – The learned Single Judge appears to have lost sight of the significance of the use of word “ordinarily” inasmuch as he has observed in paragraph 13 of the Impugned Order that the Mother has not established her suitability to be granted interim custody of ‘T’ who at that point in time was an infant – The proviso places the onus on the father to prove that it is not in the welfare of the infant child to be placed in the custody of his/her mother – The wisdom of the Parliament or the Legislature should not be trifled away by a curial interpretation which virtually nullifies the spirit of the enactment.

Admiralty jurisdiction – Suit for recovery – Arrest of ship

2015 STPL(Web) 122 SC (SC)(DB) - Judgment Date: 17-2-2015 - Appeal dismissed

PETROMARINE PRODUCTS LTD. Vs. OCEAN MARINE SERVICES COMPANY LTD. AND OTHERS

Merchant Shipping Act, 1958, Section 3(15) – Madras High Court Original Side Rules, Order XLII, Rule 3 – Civil Procedure Code, 1908, Order 21 Rule 52 – Admiralty jurisdiction – Arrest of ship – Suit for recovery – Attachment order – Transfer of decree – Perusal of the Rule 3 of Order XLII of the Madras Rules would show that in a suit in rem warrant of arrest of vessel is issued by the High Court, all interested persons shall have a right to intervene and lay their claim by filing an affidavit showing that he is interested in the property under arrest – In admiralty proceedings, where several persons have lodged their claim, even the attachment made by Bombay High Court has to be decided only if an application for payment of attached amount is made – Admittedly the appellant without approaching the admiralty proceedings sought a declaration that it is not entitled to priority – Being fully aware of the development of the proceedings and suits in the Madras High Court, the appellant did not raise any objection – In the result, the learned Single Judge of the Madras High Court after hearing all the parties, who had approached the Court, passed the order – Held that once the decree was transferred and transmitted by the Bombay High Court to the Madras High Court, the appellant could not have moved the Bombay High Court and obtained an order without notice to the creditors and claimants -When the property was in the custody of Madras High Court, being the transferee court in question of title of priority arisen between the person having decree in his favour and person not being the judgment debtor is to be determined by the transferee court -Submission on behalf of the appellant that after order of attachment under Order XX1 Rule 52 CPC, the Registry of Madras High Court had to remit the amount to Bombay High Court ignoring the pendency of proceedings in the Madras High Court repelled – Order passed by the Division Bench upholding inter alia the disbursements made by Single Judge of the sale proceeds received by sale of the ship in question upheld.

CBI Investigation

2015 STPL(Web) 121 SC (SC)(DB) - Judgment Date: 17-2-2015 - Allowed

RASHMI BEHL Vs. STATE OF UTTAR PRADESH AND OTHERS

Constitution of India, Articles 14, 21 and 32 – Investigation – CBI investigation – Allegations of rape by her own father and others by petitioner – FIR registered but investigation not progressed – Having regard to the facts, sequence of events and inordinate delay in the investigation of the case, it would show that the investigation by the State police authorities is not being conducted in a proper direction – More than two years have passed but the police failed to conclude the investigation, which itself goes to show that police have not acted in a forthright manner in investigating the case – Prima facie the police has acted in a partisan manner to shield the real culprits and the investigation of the case is not being conducted in a proper and objective manner – Since local police is allegedly involved as per the statement of the petitioner recorded under Section 164, there may not be fair investigation – Taking into consideration the entire facts of the case and very serious allegations made against all the respondents including police officers, held to be a fit case where the investigation has to be handed over to an independent agency like CBI for the purpose of fair and unbiased investigation – Central Bureau of Investigation to investigate the case independently and in an objective manner and to conclude the same in accordance with law.

Revisional jurisdiction – Interference

2015 STPL(Web) 120 SC (SC)(DB) - Judgment Date: 17-2-2015 - Interference correct as not only finding of fact erroneous but also error in law

N.M. KRISHNAKUMARI & ORS. Vs. THALAKKAL ASSIYA & ORS.

Kerala Land Reforms Act, 1963, Section 72MM(1),74, 75 and 103 – Findings of fact – Interference – Revisional jurisdiction – Appellate Authority has completely ignored the undisputed pleadings and material documents on record in favour of the respondents and the said finding of the Appellate Authority is erroneous in law and patently perverse as it has ignored the correct findings of the Land Tribunal, on the relevant contentious issues – The High Court has rightly reversed the decision of the Appellate Authority after careful examination of the divergent findings of fact recorded by it as the same are contrary to both the documentary and oral evidence on record, particularly Ext.B1 – Thus, in the light of all the material evidence on record and the statutory provisions under Sections 74 and 75 of the Act, the relevant and glaring error on fact and in law committed by the Appellate Authority has been rightly interfered with by the High Court, after it had satisfied itself that the divergent findings of the Appellate Authority are not only erroneous but also error in law and it has exercised its revisional jurisdiction and set aside the divergent findings of the Appellate Authority – The power exercised by the High Court under Section 103 of the Act has been rightly exercised by it in setting aside the judgment and order of the Appellate Authority, as the same is not only erroneous but also error in law.

Pension – Retaining allowance

2015 STPL(Web) 119 SC (SC)(DB) - Judgment Date: 16-2-2015 - Retaining allowance only for purpose to calculate pension

WARSALIGANJ SAHKARI CHINI MILL MAZDOOR UNION Vs. STATE OF BIHAR AND OTHERS

Seasonal workers – Sugar factory – Pensionary benefits – Retaining allowance – Claim for -The seasonal workers attached to the sugar factories referred to in the appeals will not be entitled to any retaining allowance: however, the retaining allowance, which would have been otherwise payable, will only be taken into account for the purpose of calculating the benefits due to them in terms of the Exit Settlement scheme/plan or pensionary benefits.

Service Law – Pension – Counting of past service

2015 STPL(Web) 118 SC (SC)(DB) - Judgment Date: 16-2-2015 - No benefit of past service

STATE OF MADHYA PRADESH & OTHERS Vs. HITKISHORE GOSWAMI

Pension – Counting of past service – Respondent having voluntarily tendered his resignation from the said service without there being any condition much less a condition to enable him to claim any kind of its benefit in the event of his joining other services with the State, no benefit of such past services was available to the respondent – The effect of tendering the resignation by the respondent – may be for any reason was that the relationship between the parties insofar as that particular employment was concerned got severed for all purposes leaving no benefit to remain in respondent’s favour – It had no connection with respondent’s subsequent employment which began from “03.01.1966″ – In order to claim continuity in the service for claiming any benefit arising therefrom, it was necessary for the respondent to have shown any specific rule or condition recognizing such right in his favour – The respondent, however, was not able to show any such rule or/and condition in his favour – A right to claim pension is governed by the statue – An employee has, therefore, no right to claim any benefit in relation to pension dehores the statute – Held that the courts below erred in directing the State to give benefit to the respondent of his services which he had rendered from “02.07.1963 to 02.01.1966″ for fixing his pension without properly examining the effect of his tendering resignation on the issue raised in the writ petition.

Municipality – Altering the existing municipal limits

2015 STPL(Web) 117 SC (SC)(DB) - Judgment Date: 16-2-2015 - Directions issued

STATE OF KARNATAKA TR. SEC. HSG. & URB. & ANR. Vs. VASAVADATTA CEMENT & ANOTHER

Karnataka Municipalities Act, 1961, Section 4(1) – Constitution of India, Article 243Q – Municipal Council – Altering the existing municipal limits – The Provision of Section 9 of the Act, 1961 is somewhat similar to Section 4 of the Land Acquisition Act, 1894 whereunder the posting of the notice in conspicuous/convenient places is mandatory – Notification dated 3rd October, 1995 was posted at four conspicuous places – All the persons, who are said to be affected by the notification, were informed sufficiently by notice dated 3rd October, 1995 posted at the said conspicuous places – Plea that there are two notifications of the same date and in one there are five place at which the notification is directed to be displayed and in second notification there are nine places which has been prepared subsequently – The State has neither created any document nor filed the same before the High Court or this Court – If any document is created by any officer to keep it on record so as to produce it before the Court, it is a serious matter which requires to be inquired into by the concerned authority – State Government directed to inquire into the matter and, if so necessary, file an FIR against the alleged officers who might have created the document containing the name of nine conspicuous places in the so called notification dated 3rd October, 1995, signed by the Chief Officer, Sedam in green ink.

Arbitration – Appointment of arbitrator

2015 STPL(Web) 116 SC (SC)(DB) - Judgment Date: 16-2-2015 - Arbitrator not appointed

M/S. SYSTEM FOR INTERNATIONAL AGENCIES Vs. M/S. RAHUL COACH BUILDERS PVT. LTD.

Arbitration and Conciliation Act, 1996, Section 11(6) – Arbitration clause – Appointment of arbitrator – The clause with regard to arbitration is quite vague and as there are no by-laws framed under the provisions of the Companies Act, no arbitrator can be appointed – There cannot be any arbitration and therefore, the petition made under the provision of Section 11(6) of the Act, 1996 fails – It would be open to the parties to take appropriate remedy in accordance with law – The arbitration petition disposed of as rejected.

Education – Approvals for Technical Institutions

2015 STPL(Web) 115 SC (SC)(DB) - Judgment Date: 16-2-2015 - Approval granted

MAHATMA EDUCATION SOCIETY'S PILLAI'S INSTITUTE OF INFORMATION TECHNOLOGY, ENGINEERING, MEDIA STUDIES & RESEARCH Vs. ALL INDIA COUNCIL FOR TECHNICAL EDUCATION & ORS.

Constitution of India, Article 142 – All India Council for Technical Education (Grant of Approvals for the Technical Institutions) Regulations, 2012, Regulation 6 – Education – Educational institutions – Imparting studies in the field of engineering – No grant of approval – For not having land as stipulated in Regulations – Petitioner society has been imparting education to students through its colleges for the last 15 years – If approval is not granted, the students, who have already been admitted by an interim order of the High Court for the academic year 2014-15, would be put to great inconvenience and difficulties for no fault on their part -As an exceptional case, without going into the merits of this case, in exercise power under Article 142 of the Constitution of India respondent no.1 directed to grant a letter of approval to the concerned colleges managed by the petitioner for the academic year 2014-15 – For the subsequent academic year the petitioner shall do the needful to comply with the requirements of the aforestated Regulation and other Regulations.

Sentence – Reduction

2015 STPL(Web) 114 SC (SC)(DB) - Judgment Date: 13-2-2015 - Compensation granted on reduction of sentence

STATE OF M.P. Vs. MEHTAAB

Penal Code, 1860, Sections 304A and 337 – Criminal Procedure Code, 1973, Section 357 and 357A – Conviction – Sentence – Reduction in sentence – Compensation – In criminal revision High Court reducing the sentence awarded to the respondent under Section 304A IPC from RI for one year and under Section 337 IPC from RI for three months to RI for 10 days which was the period already undergone by him without assigning any reason – No compensation awarded – Held that the respondent having been found guilty of causing death by his negligence the High Court was not justified in reducing the sentence of imprisonment to 10 days without awarding any compensation to the heirs of the deceased – In the facts and circumstances of the case, the order of the High Court can be upheld only with the modification that the accused will pay compensation of Rs.2 lakhs to the heirs of the deceased within six months – In default, he will undergo RI for six months – The compensation of Rs.2 lakhs fixed having regard to the limited financial resources of the accused but the said compensation may not be adequate for the heirs of the deceased -In addition to the compensation to be paid by the accused, the State can be required to pay compensation of Rs. 3 lakhs under Section 357-A payable out of the funds available/to be made available by the State of Madhya Pradesh with the District Legal Services, Authority – In case, the accused does not pay the compensation awarded as above, the State of Madhya Pradesh will pay the entire amount of compensation of Rs.5 lakhs within three months after expiry of the time granted to the accused.

Tender – Revocation of – Forfeiture of earnest money

2015 STPL(Web) 113 SC (SC)(DB) - Judgment Date: 13-2-2015 - Forfeiture of earnest money valid

NATIONAL THERMAL POWER CORPORATION LTD. Vs. M/S ASHOK KUMAR SINGH & ORS.

Contract Act, 1872, Section 5 – Revocation of tender – Earnest money – Forfeiture of – Special condition No. 2 of contract inter alia provided that the earnest money shall be forfeited on revocation of the tender – Held that the High Court was in manifest error in holding that the forfeiture did not fall within the purview of Condition No. 2 – It is no longer possible for the respondents to contend that the right to withdraw the bid in terms of Section 5 of the Contract Act, 1872 would entitle them to withdraw without suffering forfeiture of the earnest money even in cases where the submission and receipt of bids is itself subject to the condition that in the event of a withdrawal of the bid the earnest money stand forfeited – The order passed by the High Court set aside and writ petition liable to be dismissed.

Land ceilings – Surplus land – Inquiry

2015 STPL(Web) 112 SC (SC)(DB) - Judgment Date: 11-2-2015 - Inquiry valid

MADHUKAR SADBHA SHIVARKAR Vs. STATE OF MAHARASHTRA

Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, Section 14(4) and 21, 45(2) – Constitution of India, Articles 14,19,21, 300A and 162 – Land ceilings – Surplus land – Executive order – To initiate administrative inquiry – To enquire into the land holding records with a view to find out as to whether original land revenue records have been destroyed and fabricated to substantiate their unjustifiable claim by playing fraud upon the Tehsildar and appellate authorities to obtain the orders unlawfully in their favour by showing that there is no surplus land with the Company and its share- holders – Plea on behalf of the appellants that the State Government has no power either under Section 45(2) or under Section 14 (4) of the Act to appoint an Enquiry Officer to enquire into the land holdings of the villages referred to therein held to be untenable contentions as the power exercised by the State Government to pass the orders impugned in the writ petitions is traceable to its executive power under Article 162 of the Constitution of India – The orders impugned in the writ petitions which are affirmed by the High Court, held to be perfectly legal and valid having regard to the magnitude of the alleged fraud in relation to the vast extent of the land holding obtained by the declarants by giving false declarations with a view to come out from the clutches of the land ceiling provisions of the Act – Appeal liable to be dismissed.

Service Law – Appointment

2015 STPL(Web) 111 SC (SC)(DB) - Judgment Date: 11-2-2015 - Appointment on bogus certificates set aside

KRISHNA HARE GAUR Vs. VINOD KUMAR TYAGI & ORS.

Constitution of India, Article 226 – U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978, Rule 4(2)(c) read with Rule 2(h) – Uttar Pradesh Junior High School (Payment of Salaries of Teachers and other Employees) Act, 1978, Section 19(1) – Appointment – Challenge as to – Res judicata – From the materials on record, it emerges that respondent No.1 did not possess requisite experience of five years and his appointment is in contravention to Rule 4(2)(c) read with Rule 2(h) of the 1978 Rules – The appointment of respondent No.1 held to be not valid in law – The earlier Writ Appeal No. 13537 of 2011 was dismissed mainly on the ground that the District Basic Education Officer has recorded a finding that respondent No.1 has the requisite five years teaching experience – The Additional District Magistrate observed that the District Basic Education Officer did not thoroughly conduct the inquiry, and therefore, dismissal of the earlier writ appeal cannot be taken as res judicata – Held that when the appointment is made de hors the rules, the same is a nullity – In such an eventuality, the statutory bar like doctrine of res judicata is not attracted – Since respondent No.1 obtained appointment on the basis of bogus certificates the principle of res judicata will not be attracted to the case on hand – Since the appointment of respondent No.1 is conditional that in the case of any concealment of facts, the approval is liable to be cancelled, the Basic Shiksha Adhikari rightly passed the order cancelling the appointment which was rightly upheld by the learned Single Judge – The Division Bench was not right in setting aside the order of the learned Single Judge on the principles of res judicata and the impugned order of the Division Bench liable to be set aside.

Practice and Procedure – Restoration of appeal

2015 STPL(Web) 110 SC (SC)(DB) - Judgment Date: 6-2-2015 - Appeal restored subject to payment of cost

M/S ANVIL CABLES PVT LTD. Vs. COMMNR. OF CENTRAL TAXES & SERVICE TAX

Appeal – Restoration of appeal – Costs – Upon payment of Rs. 25,000/- by way of costs to the sole respondent within two months , the impugned Judgment shall be set aside and Tax Appeal No. 3 of 2013 shall be restored to its original number and shall be heard on merits by the High Court.

Service Law – Disability pension

2015 STPL(Web) 109 SC (SC)(DB) - Judgment Date: 13-2-2015 - Disability pension allowed

UNION OF INDIA & ANR. Vs. RAJBIR SINGH

Pension Regulations for Army, 1961, Regulation 173 – Entitlement Rules for Casualty Pensionary Awards, 1982, Rule 5, 9 and 14 – Disability pension – Entitlement –Each one of the respondents having been discharged from service on account of medical disease/disability, the disability must be presumed to have been arisen in the course of service which must, in the absence of any reason recorded by the Medical Board, be presumed to have been attributable to or aggravated by military service – There is admittedly neither any note in the service records of the respondents at the time of their entry into service nor have any reasons been recorded by the Medical Board to suggest that the disease which the member concerned was found to be suffering from could not have been detected at the time of his entry into service – The initial presumption that the respondents were all physically fit and free from any disease and in sound physical and mental condition at the time of their entry into service thus remains unrebutted – Since the disability has in each case been assessed at more than 20%, their claim to disability pension could not have been repudiated by the appellants.

Civil Procedure – Rejection of plaint

2015 STPL(Web) 108 SC (SC)(DB) - Judgment Date: 13-2-2015 - Rejection of plaint set aside

P.V. GURU RAJ REDDY REP. BY GPA LAXMI NARAYAN REDDY & ANR. Vs. P. NEERADHA REDDY & ORS. ETC.

Civil Procedure Code, 1908, Order 7 Rule 11 – Rejection of plaint – It is the averments in the plaint that has to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law – At the stage of exercise of power under Order VII rule 11, the stand of the defendants in the written statement or in the application for rejection of the plaint is wholly immaterial – It is only if the averments in the plaint ex facie do not disclose a cause of action or on a reading thereof the suit appears to be barred under any law the plaint can be rejected – In all other situations, the claims will have to be adjudicated in the course of the trial.

Probation of Offenders – Not granted

2015 STPL(Web) 107 SC (SC)(DB) - Judgment Date: 13-2-2015 - Conviction

BINOY & ANR. Vs. STATE OF KERALA

Probation of Offenders Act, 1958, Section 4 – Penal Code, 1860, Section 323, 324 and 452 – Conviction – Sentence – Probation – Serious allegation of use of sharp weapon such as sword by the accused persons who chased the injured and then caused incised injuries on their persons – Even then the High Court showed leniency by altering conviction under Section 308 IPC to one under Section 324 IPC and reduced sentence of three years to six months for Section 324 IPC and further reduced sentence of six months each under Section 323 IPC and three years each under Section 452 IPC to R.I. for a period of three months each under Sections 452 and 323 IPC -Only plea for showing leniency was a claim that the appellants have got aged mother – Held that in the facts and circumstances, the view taken by the trial court for not extending the Probation of Offenders Act cannot be faulted.

Arbitration – Appointment of arbitrator

2015 STPL(Web) 106 SC (SC)(DB) - Judgment Date: 12-2-2015 - Arbitrator appointed

KSS KSSIIPL CONSORTIUM THRO. ITS CONSTITUTED ATTORNEY MR. DEVENDRA KUMAR Vs. GAIL (INDIA) LTD.

Arbitration and Conciliation Act, 1996, Section 11(6) – Sole arbitrator – Appointment of – Claim for payment of additional works – Clause 91.1 and 91.2 contemplate the making/raising of claims by the contractor for additional works and consideration thereof by the Engineer-in-chief – The decision of the Engineer-in-chief is final and binding – The finality attached to such a decision cannot be an unilateral act beyond the pale of further scrutiny – Such a view would negate the arbitration clause in the agreement – Justifiability of such a decision though stated to be final, must, be subject to a process of enquiry/adjudication which the parties in the present case have agreed would be by way of arbitration – The claims made by the petitioner for payment of additional works under both the contracts referred to arbitration by Chief Justice (Retd.), Jammu & Kashmir High Court, who is hereby appointed as the sole arbitrator.

Civil Procedure – Judgment on admission

2015 STPL(Web) 105 SC (SC)(DB) - Judgment Date: 12-2-2015 - Judgment upheld

RAVEESH CHAND JAIN Vs. RAJ RANI JAIN

Civil Procedure Code, 1908, Order 12 Rule 6 – Judgment on admission – Question of ownership already decided in the earlier suit filed by the defendant/ appellant – The said issue need not have to be decided afresh and hence on the basis of the finding of ownership decided in favour of the plaintiff/respondent, the suit has to be decreed so far as the recovery of possession is concerned – Entitlement of the plaintiff/respondent to claim a decree for recovery of a sum of Rs. 5,55,000/- and future damages @ Rs.15,000/- per month, admittedly this question has not been decided either in the earlier suit or in this suit – In that view of the matter, decreeing the entire suit on the basis of ownership of the plaintiff/respondent already decided in the earlier suit, the decree for recovery of damages ought not to have been passed by the High Court – Taking into consideration the relationship of the appellant and the respondent being mother and son, the Court did not think it proper to again remand the matter to the trial court for deciding the issue as to the quantum of damages the respondent is entitled to get from the appellant for his unauthorized possession of the suit property -Held that the amount of Rs.5,00,000/- would be just and proper so far as the claim for damages is concerned – Order passed by the High Court not interfered with.

Unauthorised construction – Public Interest Litigation

2015 STPL(Web) 104 SC (SC)(DB) - Judgment Date: 12-2-2015 - Writ dismissed

SAI KRIPA MANGAL KARYALAYA & ORS. Vs. NAGPUR MUNICIPAL CORPORATION & ORS.

Constitution of India, Article 226 – Unauthorised construction – Public Interest Litigation – Disputed question of facts – Delay and laches – Held that in absence of the sanctioned plan, the High Court was not justified in deciding the disputed question of fact as to whether the building was constructed in accordance with Town Planning Scheme – The High Court ought to have looked into the sanctioned plan to find out whether it was for office (Karyalaya) or for residential or for commercial purpose for coming to a definite conclusion – Further, there being a long delay of eight years in filing the writ petition and in absence of challenge to the plan sanctioned by N.M.C, the High Court was not justified in entertaining the so called Public Interest Litigation filed by persons who had personal dispute with respondent no.4 – Impugned judgment and order passed by the High Court liable to be set aside and the Writ Petition preferred by respondent nos.5 and 6 liable to be dismissed.

Summoning order

2015 STPL(Web) 103 SC (SC)(FB) - Judgment Date: 11-2-2015 - Setting aside of Summoning order set aside

SONU GUPTA Vs. DEEPAK GUPTA & ORS.

Criminal Procedure Code, 1973, Section 190 and 204 – Penal Code, 1860, Sections 464, 468 and 471 – Cognizance of offence – Summoning order – The specific case of the appellant that FIR was registered on an undated photocopy of a petition attributed to the appellant but not bearing her original signature – It could not have been rejected by the learned Magistrate at the present stage especially in view of the report of investigation by the CID which was also called for and there being no dispute that the FIR No.73/2002 was registered only on the basis of a photocopy on which the signature is not in original – High Court grossly erred in exercise of its jurisdiction by directing the appellant/complainant to lead further evidence and produce the original documents to show forgery – If the FIR is admittedly on the basis of only a photocopy of a document allegedly brought into existence by the accused persons, the High Court erred in directing the appellant to produce the original and get the signatures compared – High Court fell into error of evaluating the merits of the defence case and other submissions advanced on behalf of the accused which were not appropriate for consideration at the stage of taking cognizance and issuing summons.

Murder – Dying declaration -Circumstantial evidence

2015 STPL(Web) 102 SC (SC)(DB) - Judgment Date: 11-2-2015 - Conviction

DASIN BAI@ SHANTI BAI Vs. STATE OF CHHATTISGARH

Penal Code, 1860, Section 302 – Evidence Act, 1872, Section 106 – Murder – Dying declaration -Circumstantial evidence –Dead body of deceased found in the premises of the appellant -The appellant/accused in her statement, recorded under Section 313 of Criminal Procedure Code, has not given any explanation as to how the deceased was burnt and she even admits to be unaware of the name of the deceased – This is highly improbable and cast doubt on the innocence of the accused – She is unable to discharge the burden cast upon her by Section 106 of the Evidence Act, as it was within her special knowledge as to how the deceased came into the premises of her house – The ground of defense taken by the appellant, that she did not have any motive to kill the deceased, held to be ill-founded and does not break the chain of circumstances – PW-1 and PW-3, who recorded the dying declaration, were neighbours of the accused and hence the Trial Court correctly held that they are not interested witnesses – The findings of the Trial Court also bring to light the fact that they had no animosity with the appellant, and were visiting her house only on the fateful night – The Trial Court and the High Court have rightly analysed the evidence of these witnesses and the statements made in the dying declaration and held the accused guilty.

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