Indlaw Updates - Case Law & Judgments

Judgments

Union of India and others vs H. L. Gulati [DELHI HIGH COURT, 31 Aug 2010]
Service - Central Civil Services (Conduct) Rules, 1964, r. 14 - Central Civil Services (Pension) Rules, 1972, r. 9(i) - Misconduct - Penalty of permanently withholding of 50% monthly pension and gratuity - Respondent who retired on superannuation was called upon to face an inquiry as per r. 9(i) of CCS (Pension) Rules, 1972 on the ground that he, in total disregard of the provisions of Office Manuals, had processed the payments of 36 contingent bills to the tune of Rs. 42.24 lakhs for which he had no authority - After enquiry officer's report, Competent authority imposed penalty of permanently withholding 50% monthly pension and gratuity and held that the charges established against the respondent constituted a grave misconduct - On appeal, tribunal set aside said order of penalty of permanently withholding of 50% monthly pension and gratuity and held that it is a condition precedent to exercise powers u/r. 9(1) of the Pension Rules that there must be a finding in the inquiry report that the pensioner has committed any grave misconduct or grave negligence in discharge of his duties - Petitioner filed petition against said order contending that as long as it could be inferred that the misconduct proved was a grave misconduct, it was sufficient for the penalty of pension cut to be imposed - Whether order of the tribunal could be upheld? - Held, charges which has been proved against respondent goes to show that the conduct of the respondent amounted to unlawful behaviour by a public servant in relation to his duties wilfully - Thus, he is certainly guilty of committing misconduct in office - Looking into the amount involved in the matter, it can certainly be said to be a case of grave misconduct - Hence, order passed by the tribunal is not sustainable in law, hence, set aside - Writ petition allowed.

Kapoor Singh S/o Singara Singh vs Gram Panchayat village Badhana and another [PUNJAB AND HARYANA HIGH COURT, 31 Aug 2010]
Civil Procedure - Land & Property - Code of Civil Procedure, 1908, O. 7 r. 10 - Public Premises Act, 1971, ss. 4 and 5 - Punjab Village Common Lands (Regulation) Act, 1961, ss. 13 and 13A - Plaintiffs filed the suit seeking a decree for declaration and permanent injunction to the effect that they are owners and in possession of the impugned agricultural land against the defendant - Defendants submitted that Gram Panchayat is the owner of the suit land, which was used for public purpose of all the inhabitants of the village - Defendants also submitted that the possession of the plaintiffs over it is unauthorized and the ejectment orders were already passed by the Commissioner - Trial Court dismissed the suit of the plaintiffs - First Appellate court also dismissed appeal filed against said order and returned the plaint for presentation before the proper forum - Hence, present appeal - Whether order of the first Appellate could be upheld? - Held, co-joint reading of ss. 13 and 13A of Act 1961 would reveal that if any question of title is involved, then the jurisdiction of the civil Court is explicitly barred and only Collector is competent to decide the same in this relevant connection - Once, it is proved that the civil Court did not have the jurisdiction to entertain and try the suit, then the plaint ought to have been returned by the trial Court to be presented before the appropriate Court as contemplated u/o. 7 r. 10 CPC - Hence, first Appellate Court has rightly directed the return of plaint to be presented in the appropriate Forum to determine the question of title between the parties in this relevant connection - Impugned order of the First Appellate Court upheld - Appeal dismissed.

Commissioner of Central Excise vs Saraswati Rubber Works (P) Limited [PUNJAB AND HARYANA HIGH COURT, 31 Aug 2010]
Excise - Indirect Tax - Central Excise Act, 1944, ss. 2(b), 11A and 35G - Jurisdiction - Deputy Commissioner - Proceedings were initiated against respondent on the ground of shortage of finished goods and raw materials - Adjudication authority confirmed the demand and also imposed penalty on respondent - On appeal, said order was set aside on the ground that as per circular of the Board dt. 27.2.1997, only Additional Commissioner is to deal with the matter involving suppression of facts or contravention of rules with intention to evade duty - Said view has been upheld by the Tribunal - Hence, present appeal - Whether the Show Cause Notice issued by the Deputy Commissioner within period of 6 months from the date of detection of shortages is beyond his jurisdiction? - Held, SC in Pahwa Chemicals Pvt. Ltd. vs. CCE 2005 INDLAW SC 122, held that order of the adjudicating authority could not be set aside on the ground that the work was allotted to a different officer under the circular of the Board - It was held that u/s. 2(b) of the Act, 'Central Excise Officer' included any officer specified therein - Under s. 11A of the Act, 'Central Excise Officer' could deal with the matter - In view of definition of 'Central Excise Officer', the circular of the Board could not have the effect to nullify the statutory power u/s. 11A of the Act - Following said judgment, orders of the Commissioner and tribunal set aside and matter remanded to the Commissioner for fresh decision - Appeal allowed.

Yadava Kumar vs Divisional Manager, National Insurance Company Limited and another [SUPREME COURT OF INDIA, 31 Aug 2010]
(A) Carriers & Transportation - Insurance - Motor Vehicles Act, 1988, s. 163A - Determination of quantum of compensation - Appellant, 30 years old, a painter by profession, sustained injuries in a road accident - Claim petition was filed - Doctor assessed the disability at 33% in respect of the right upper limb and 21% towards left upper limb and 20% in respect of the whole body, which prevents the appellant from painting in view of multiple injuries sustained by him - Compensation was awarded - On appeal, compensation of Rs.52,000/- granted by the Tribunal was enhanced to Rs.72,000/- - However, HC refused to award any amount towards loss of future earning - Hence, present appeal - Whether the compensation granted to appellant was correct? - Held, while assessing compensation in accident cases, the HC or the Tribunal must take a reasonably compassionate view of things - In matters of determination of compensation both the Tribunal and the Court are statutorily charged with a responsibility of fixing a 'just compensation - In the present case, both the Tribunal and the HC failed to incorporate anything by way of compensation in the category of 'loss of future earnings' in spite of recognizing the fact that there was disability of 33% in the right upper limb, 21% in the left upper limb and 20% in respect of the whole body, which does not allow the appellant to paint as he did earlier - Further, appellant being a painter has to earn his livelihood by virtue of physical work - Approach of HC in totally refusing to grant any compensation for loss of future earning was not a correct one - Hence, Rs. 2 lakhs by way of compensation plus 8% interest granted - Appeal disposed of.

(B) Carriers & Transportation - Insurance - Motor Vehicles Act, 1988, s. 163A - Determination of quantum of compensation - Held, HC and the Tribunal must realize that there is a distinction between compensation and damage - Compensation is comprehensive and may include a claim for damage - Thus, in the matter of computation of compensation, the approach will be slightly more broad based than what is done in the matter of assessment of damage - At the same time it is true that there cannot be any rigid or mathematical precision in the matter of determination of compensation - Appeal disposed of.

Anil Kapoor vs Nirmal Grovar [RAJASTHAN HIGH COURT, 31 Aug 2010]
Land & Property - Family & Personal - Indian Succession Act, 1925, ss., 57 and 213 - Will - Plaintiff-respondent filed a civil suit against the defendant-appellant for possession and permanent injunction - Plaintiff submitted that her friend 'M', and she had bought a plot through a registered sale-deed - Plaintiff claimed because of love and affection 'M' executed a will dated 25-6-1997, whereby she bequeathed her share of the property to the plaintiff - Defendant-appellant claimed he was adopted son of 'M' that vide will dated 28-3-2000 'M' bequeathed her share of the property to him - Trial Court decreed the suit and directed the defendant-appellant to handover the possession of property - Hence, the present appeal - (A) Whether appellant was legally adopted by 'M'? - Held, since in the present case, both the defendant and his mother admitted that there was no physical 'give and take of the child', clearly the essential ingredient for adoption was missing - Also defendant-appellant was not present even at the time when the last rites of 'M' were performed - Hence, Trial Court was justified in holding that a valid adoption did not take place as required by law - (B) Whether Will was drawn in favour of defendant-appellant? - Held, the claim of the defendant-appellant that the will was drafted and signed at home was not borne out -Since sufficient doubt does exist about the truthfulness of the will dated 28-3-2000, the Trial Court was justified in concluding that the will was not authentic - No perversity in the impugned judgment - Appeal dismissed.

(1) Dehal Singh; (2) Dinesh Kumar vs State of Himachal Pradesh [SUPREME COURT OF INDIA, 31 Aug 2010]
Criminal - Narcotic Drugs and Psychotropic Substances Act, 1985. s. 20 - Possession of narcotic - Conviction - Challenged - Trial court convicted appellants u/s. 20 of Act, 1985 and sentenced them to undergo rigorous imprisonment for a period of 10 years each and to pay a fine of Rs. 1,00,000/- each - HC dismissed appeal filed against said order - Appellants filed appeal submitting that two samples of 50 gms. each were taken and sent to the Forensic Science Laboratory for examination, but net weight of the sample received in the laboratory was 65.5606 gms, hence, this discrepancy in weight of sample, casts serious doubt to the credibility of the prosecution case - Whether in view of the evidence order of the HC and trial court could be upheld? - Held, impugned vehicle was intercepted and searched on a highway and impugned substance was weight in the weighting scale of grocery shop and it is common knowledge that weighing scale and weight kept in the grocery shop was not of such standard which can weigh articles with great accuracy and therefore difference of 15 gms. in weight, is not of much significance - Moreover, both the appellants have been found travelling in the vehicle from which impugned substance was recovered - Once possession is established the Court can presume that the accused was in conscious possession - Impugned order of HC and trial court upheld - Appeals dismissed.

C. S. Mani (Deceased) by Lr C. S. Dhanapalan vs B. Chinnasamy Naidu (Deceased) by Lrs [SUPREME COURT OF INDIA, 31 Aug 2010]
Civil Procedure - Land & Property - Tamil Nadu Indebted Agriculturists (Temporary Relief) Act, 1975, s.4 - Code of Civil Procedure, 1908, ss. 47, 64, O. 21 r. 57 - Stay of execution under 1975 Act - Scope - Appellant obtained a money decree against the predecessor-in-title - Appellant filed an execution petition and thereby attached suit property owned by predecessor-in-title - In the meantime, 1975 Act came into force and predecessor-in-title, subsequently, filed an application u/s. 4 of 1975 Act to stay the execution proceedings until the expiry of moratorium period of one year - Execution Court, consequently, stayed the execution proceedings - Appellant re-initiated the execution proceeding after the moratorium period - Execution Court put the suit property for court auction and appellant purchased the suit property in that auction - Execution Court confirmed the sale and issued sale certificate in favour of appellant - Predecessor-in-title, subsequently, filed an application u/s. 47 CPC to set aside the sale - Execution Court set aside the sale - Appellant filed appeal before the Sub Court - Sub Court reversed the Execution Court order - However, predecessor-in-title, in the meantime, sold suit property to third parties and those third parties, in turn, sold the same to respondent - Respondent filed a suit for declaration of title and for permanent injunction against appellants - Trial Court dismissed respondent's suit and First Appellate Court confirmed Trial Court order - Respondent filed a second appeal before the HC - HC allowed respondent's appeal and set aside lower court orders - (A) Whether the attachment of the suit property continued after the closure of the execution petition till the auction sale and confirmation of sale; and consequently the sales by predecessor-in-title as also the sales by her transferees to respondent were invalid - Held, appellant's execution application was closed in view of s. 4 of the 1975 Act staying executions against respondent, however, the said stay was only for a specified limited period - Proviso to s. 4 clearly implied that any attachment made in such stayed execution proceedings shall continue to be in effect, by providing that the court will have to pass if necessary the orders for custody or preservation of the attached property during the pendency of stay under the 1975 Act , therefore, the enactment of the 1975 Act did not determine the attachment - What was stayed or kept in abeyance during the period when the statutory stay of execution operated, was not the attachment, but the further proceedings in pursuance of the attachment, i.e., sale of the attached property - On the expiry of the moratorium period under the 1975 Act, the decree holder became entitled to continue the execution by proceeding with the sale, thus, there was no question of determination or withdrawal of attachment, nor any question of 'eclipse of attachment' during the period when the statutory stay under the 1975 Act, nor any 'revival' of attachment thereafter - Attachments in execution, already effected, continued and were in effect, during the entire period of stay of execution by the 1975 Act - Alienations by predecessor-in-title were therefore void as against the claim enforceable under the attachment obtained by appellant, having regard to s. 64 CPC - As the attachment obtained by the appellant continued, the sale in his favour was valid and the sales by predecessor-in-title were invalid - (B) Whether the attachment of the suit property ceased on the expiry of six months from the date of closure of the execution proceedings, in view of the intervention of the 1975 Act and the order of closure; and consequently the sales by predecessor-in-title were valid, and the auction sale in favour of the appellant was invalid - Held, if the order of the executing court while closing the execution, was 'attachment to continue', the attachment would have continued in spite of the closing of the execution proceedings - Even if the executing court had closed the execution, in view of the statutory stay, without any specific order continuing the attachment, the attachment would not have ceased as there was no 'dismissal' of execution under O. 21 r. 57 CPC - However, if the stay order under 1975 Act had stated 'attachment to continue for six months', the attachment would have come to an end on the expiry of six months from the date of commencement of Act, unless it was continued by any subsequent order, or had been modified or set aside by a higher court - In the present case, respondent filed an application for correcting the stay order for incorporating the words 'attachment to continue for six months' - Consequently, stay order amended without prior notice to appellant, hence appellant filed a revision before the HC - HC allowed revision and set aside the correction - HC allowed respondent's second appeal on the presumption that stay order was in force only for six months overlooking the earlier HC revision order with regard to the correction of stay order - Therefore, neither the purchasers from predecessor-in-interest nor the respondent who was the subsequent transferee, obtained any title in pursuance of the sales, as the sales were void as against the claims enforceable under the attachment - Impugned HC order is set aside and order of lower courts restored - Appeal allowed.

Sudipto Nandy vs Union of India and others [CALCUTTA HIGH COURT, 30 Aug 2010]
Service - Central Civil Services (Classification, Control & Appeal) Rules, 1965 - Central Civil Services (Conduct) Rules, 1964 - Imposition of penalty - Legality - Charge-sheet was issued against the petitioner u/r. 14 of the CCS (CCA) Rules, 1965 for major penalty - Disciplinary Authority after considering the written statement of defence filed by the petitioner decided to drop the charges levelled against petitioner - However, on the advice of Central Vigilance Commission, Disciplinary Authority initiated a fresh proceeding u/r. 16 of the CCS (CCA) Rules, 1965 for violation of the provisions of r. 3(1)(i), (ii) and (iii) of the CCS (Conduct) Rules, 1964 - Memorandum was issued to petitioner regarding the minor penalty proceedings - Thereafter, Disciplinary Authority imposed penalty of reduction in the time scale of pay, by a stage, for a period of one year, without cumulative effect as advised by Union Public Service Commission - Application filed thereagainst before Central Administrative Tribunal was dismissed - Hence, present petition - Whether initiation of the minor penalty proceedings and the imposition of punishment justified? - Held, in order to impose minor penalties, recording of finding on each imputation of misconduct or misbehaviour is a mandatory requirement which was not complied with in the present case - Further, no person can be punished by the Disciplinary Authority on the charge which was never mentioned in the charge-sheet - In the present case, Disciplinary Authority found the petitioner guilty of the charges which were never alleged against the said petitioner as mentioned in the charge memo - Therefore, no punishment could be imposed on the petitioner since the charges levelled against the petitioner as mentioned in the impugned charge memo were never proved - Minor penalty proceedings initiated against the petitioner and the impugned order of punishment quashed - Writ petition allowed.

Ram Kumar vs Siri Pal and others [PUNJAB AND HARYANA HIGH COURT, 30 Aug 2010]

(1) C. Muniappan and others; (2) D. K. Rajendran and others etc. vs State of Tamil Nadu [SUPREME COURT OF INDIA, 30 Aug 2010]
Criminal - Indian Police Act, 1861, ss. 30-A and 61 - Indian Penal Code, 1860, ss. 147, 148, 149, 188, 436 and 302 - Code of Criminal Procedure, 1973, s. 195(a)(i) - Tamil Nadu Property (Prevention of Damage & Loss) Act, 1992, ss. 3 and 4 - Murder - Conviction - Death sentence - Challenged - In view of naxalite activities, the Deputy Superintendent of Police promulgated a prohibitory order u/ss. 30-A and 61 of the Indian Police Act, 1861 - During this period to protest against court order convicting former Chief Minister political party members resorted to dharnas and took out processions - Accused, along with other political workers formed an unlawful assembly indulging in a 'road roko agitation', under the leadership of A.1, in violation of the prohibitory order - A.2, A.3 and A.4 sprinkled petrol inside the bus carrying around 47 girls student - Three students were burnt alive inside while some of the students suffered burn injuries - FIR was lodged u/ss. 147, 148, 149, 436 and 302 of IPC and u/ss. 3 and 4 of the Act, 1992 was registered - Sessions Court framed charges against all accused persons - 28 accused were convicted u/ss. 188, 341 IPC and 3 and 4 of Act, 1992 r/w s. 149 of IPC - All of them except A.24 were convicted for offence u/s. 147 IPC, whereas A.24, was convicted, for an offence u/s. 148 IPC - A.2, 3 and 4 were sentenced to death - On appeals, HC modified the conviction of A.24 u/s. 148 of IPC as being u/s. 147 IPC - Accused nos. 1, 5 to 14, 16 to 21, 23 to 26 and 28 to 31 were awarded different punishment for different offences - Conviction and sentence of death against A.2 to A.4 was confirmed - Hence, present appeals - (A) Whether conviction u/s. 188 of IPC was justified? - Held, s. 195(a)(i) of CrPC bars the court from taking cognizance of any offence punishable u/s. 188 of IPC or abetment or attempt to commit the same, unless, there is a written complaint by the public servant concerned for contempt of his lawful order - In the instant case, no such complaint was filed - It was not permissible for the Trial Court to frame a charge u/s. 188 of IPC hence charges u/s. 188 of IPC quashed - However, absence of a complaint u/s. 195 of CrPC does not falsify the genesis of the prosecution's case - There was ample evidence on record to show that there was a prohibitory order; which was issued by the competent officer one day before; it was violated - (B) Test Identification Parade - Held, Test Identification Parade is a part of the investigation and is very useful in a case where the accused are not known before-hand to the witnesses - It is used only to corroborate the evidence recorded in the court - Therefore, it is not substantive evidence - Accused should not be shown to any of the witnesses after arrest, and before holding the Test Identification Parade - In the present case, all the accused for whom Test Identification Parades were conducted were identified by some of the witnesses in the jail and in the court - (C) Hostile Witness - Held, evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence - In the instant case, some of the material witnesses turned hostile - Their evidence were taken into consideration by the courts below strictly in accordance with law and some omissions, improvements in the evidence of the PWs were very trivial in nature - (D) Death sentence - Held, "rarest of the rare case" comes when a convict would be a menace and threat to the harmonious and peaceful co-existence of the society - Where an accused does not act on any spur-of-the-moment provocation and executes that act in a deliberately planned and meticulously manner, the death sentence may be the most appropriate punishment for such a ghastly crime - Court has to consider whether any other punishment would be completely inadequate and what would be the mitigating and aggravating circumstances in the case - In such matters, it is not only a nature of crime, but the background of criminal, his psychology, his social conditions, his mindset for committing the offence and effect of imposing alternative punishment on the society are also relevant factors - In the instant case, manner of the commission of the offence was extremely brutal, diabolical, grotesque and cruel - No cogent reason to interfere with the punishment of death sentence awarded to A.2, A.3 and A.4 - Appeals dismissed.

Hari Bansh Lal vs Sahodar Prasad Mahto and others [SUPREME COURT OF INDIA, 30 Aug 2010]
Service - Electricity & Energy - Electricity (Supply) Act, 1948, s. 5(4) - Appointment - Challenge - Public Interest Litigation (PIL) - Maintainability - Appellant was appointed as Chairman of the State Electricity Board (SEB) - 1st respondent filed a PIL before the HC challenging appellant's appointment on the ground that appellant was a person of doubtful integrity and was not in a position to perform his duties at the age of 90 years - HC allowed appellant's PIL and quashed appellant's appointment - (A) Whether PIL in service matters is maintainable - Held, present matter was a service matter - Appellant was initially appointed and served in the SEB as a Member in terms of s. 5(4) and from among the Members of the Board, considering the qualifications specified in sub-s. (4), the State Government, after getting a report from the vigilance department, appointed him as Chairman of the Board, therefore, it was impermissible to claim that the issue cannot be agitated under service jurisprudence - Respondent who approached the HC by way of a PIL was not a competitor or eligible to be considered as a Member or Chairman of the Board - Respondent did not place any material or highlighted either before the HC or before the SC on what way he was suitable and eligible for appellant's post - However, writ of quo warranto lies when appointment is contrary to a statutory provision but appellant's appointment in the present case satisfied all the relevant rules, therefore, present PIL is not maintainable - (B) Whether appellant entitled to continue in the post of Chairman of SEB - Held, appellant was appointed as Chairman of SEB by Chief Minister of State after fulfilling the criteria, therefore, said appointment cannot be interfered without adequate material about his integrity or inefficiency in service - Appellant was not 90 but 84 years old as per his affidavit and he was capable of performing his duties - Further, no age limit prescribed in the rules for appointment to the post of Chairman - State Government took a stand before the HC that appellant's qualification and service was meritorious, therefore, State Government cannot take any contrary stand before the SC - Further, respondent had no case that appellant's appointment was contrary to any of the statutory provisions - Therefore, appellant entitled to join duty and continue as Chairman of the SEB in terms of his appointment order - Impugned HC order is set aside - Appeal allowed.

State of Maharashtra and others vs Arun Gulab Gawali and others [SUPREME COURT OF INDIA, 27 Aug 2010]
Criminal - Indian Penal Code, 1860, ss. 34, 120, 384, 386 and 506(ii) - Maharashtra Control of Organised Crime Act, 1999 - Quashing of criminal proceedings - Complainant lodged a complaint u/ss. 384, 386, 506(ii), 120, 34 of IPC - Complainant filed writ petition alleging harassment by the police and seeking the direction of removal of surveillance by police - Complainant submitted that he was in police custody/police protection and he was forced to write the aforesaid complaint - Wife of the complainant, made an application before the Metropolitan Magistrate for issuing direction to the police to release her husband or produce him before the court - Immediately after filing of the said application, complainant was released - Thereafter, Wife of the complainant filed a complaint before the State Human Rights Commission stating that her husband had been confined in police custody, tortured and was forcibly made to sign some papers - Complainant filed application stating that he did not want to proceed with the complaint, which was rejected - Writ petition was filed for quashing of FIR/complaint was filed, which was allowed - Hence, present appeal - Whether HC was justified in quashing the criminal proceedings? - Held, a claim founded on a denial by the complainant even before the trial commences coupled with an allegation that the police had compelled the lodging of a false FIR, was a matter which requires further investigation as the charge is levelled against the police - HC proceeded on the perception that as the complainant himself was not supporting the complaint, he would not support the case of the prosecution and there would be no chance of conviction, thus the trial itself would be a futile exercise - Quashing of FIR/Complaint on such a ground cannot be held to be justified in law - However, there was a persistent stand taken by wife of complainant that the complaint was not made voluntarily and her husband and other family members had been subjected to great deal of harassment and persecution by the police for no fault of theirs - In such a fact-situation, the possibility that the allegations made by complainant and by wife of complainant in their complaints/applications/writ petitions may be true, cannot be ruled out - Thus, it was a fit case, where in order to meet the ends of justice and to prevent the miscarriage of criminal justice, the inherent powers of the Court to quash the FIR/complaint could have been exercised - Complaint was liable to be quashed, though for different reasons - Appeal dismissed.

Jameela and others vs Union of India [SUPREME COURT OF INDIA, 27 Aug 2010]
Carriers & Transportation - Indian Railways Act, 1989, s. 124A - Railway accident - Compensation - Entitlement - Appellant's husband fell down from a train resulting in his death - Appellant preferred claim before the Railway Tribunal - Tribunal allowed appellant's claim - Respondent/Railway challenged Tribunal order before the HC - Respondent contended that the deceased was standing at the door in negligent manner from where he fell down - HC allowed respondent's appeal and set aside the Tribunal order - Whether HC order is sustainable - Held, contention of the respondent that the deceased was standing at the open door of the train compartment in a negligent manner from where he fell down was entirely based on speculation - Further, there was no eyewitness of the incident and, therefore, there was absolutely no evidence to support the case of the respondent that the accident took place in the manner suggested by it - Even if it were to be assumed that the deceased fell from the train to his death due to his own negligence it would not have any effect on the compensation payable u/s.124 A of the Act - Deceased was travelling on a valid ticket, hence he was clearly a 'passenger' for the purpose of s. 124A - Deceased's death was not a case of suicide or a result of self-inflicted injury or any natural cause or disease, hence his case was clearly an accident - HC gravely erred in holding that the applicants were not entitled to any compensation u/s. 124A of the Act, therefore, impugned HC order is set aside and Tribunal order is restored - Appeal allowed.

Prathap and another vs State of Kerala [SUPREME COURT OF INDIA, 27 Aug 2010]
Criminal - Indian Penal Code, 1860, ss. 114, 120-B, 143, 147, 148, 149 and 302 - Murder - Conviction - Challenged - Appellants along with eight other persons were tried for offences punishable u/ss. 114, 143, 147, 148, 120-B and 302 r/w s. 149 of IPC - Prosecution cited PW-1, PW-2. PW-4 and PW-5 to PW-10 as eye-witnesses - Trial Court on the basis of evidence given by the eye-witnesses held that the participation in the assault by appellants was proved beyond doubt - Conspiracy was held to be proved on the basis of the evidence given by PW3 - Trial court convicted appellants u/s. 302 r/w s. 149 of IPC - A.3 and A.8 to A.10 were acquitted - On appeal, HC held that there was clear evidence that both the appellants participated and formed an unlawful assembly with a common object to commit the murder of the deceased - However, the conviction u/s. 120-B of IPC was set aside - Present appeals - (A) Whether presence of the eye-witnesses was doubtful? - Held, Trial Court and HC correctly relied upon the unflinching, coherent and consistent evidence given by PW1 - Evidence given by PW1 was corroborated by PW2 in every material particular - Further, weapons used by the appellants and the injuries caused have been specifically mentioned by PW1 and PW2 - As per medical evidence also death resulted from the injuries caused by the appellants and the other accused with their respective weapons - No reason at all to disbelieve the evidence of the eye-witnesses - (B) Whether in view of fact the all the other co-accused were acquitted; the appellants also deserve to be acquitted on the ground of parity? - Held, it is always open to a court to differentiate the accused who had been acquitted from those who had been convicted - Both the Courts below have applied the aforesaid principle in distinguishing the case of the appellants from those who have been acquitted - Courts below rightly declined to acquit the appellants on the principle of parity - Trial Court and HC rightly convicted the appellants as the facts and circumstances of the case unequivocally prove the existence of the common object of the appellants - Appeals dismissed.

Om Prakash vs Ashwani Kumar Bassi [SUPREME COURT OF INDIA, 27 Aug 2010]
Practice & Procedure - Rent Control - Limitation Act, 1963, ss. 5 and 29(2) - East Punjab Urban Rent Restriction Act, 1949, ss. 13-B and 18-A - Presidency Small Causes Courts Act, 1882, s. 17 - Respondent (Landlord) filed an application for eviction of the petitioner (tenant) from the impugned premises u/s. 13-B Act, 1949 - Application for leave to contest the application u/s. 13-B of 1949 Act has to be made within 15 days from the date of service of the summons - Application for leave to contest the application was made one day after the said period had expired by petitioner - Thereafter, the petitioner filed an application u/s. 5 of the Limitation Act for condonation of the said delay in filing the application which was dismissed by the Rent Controller along with the application for leave to defend the eviction petition on the ground that the provisions of s. 5 of the Limitation Act were not applicable in proceedings before the Rent Controller, particularly, for condoning the delay in filing an application for leave to contest the eviction petition - HC upheld the order of the Rent Controller - Hence, present petition - Whether the Rent Controller was right in rejecting the application on the ground that he had no jurisdiction to condone the delay under the Act? - Held, there is no specific provision to vest the Rent Controller with authority to extend the time for making of such affidavit and the application - The Rent Controller being a creature of statute can only act in terms of the powers vested in him by statute and cannot, therefore, entertain an application u/s. 5 of the Limitation Act for condonation of delay since the statute does not vest him with such power - Hence, neither the Rent Controller nor the HC committed any error of law in rejecting the Petitioner's application for seeking leave to contest the suit - Petition dismissed.

Shaikh Sattar vs State of Maharashtra [SUPREME COURT OF INDIA, 27 Aug 2010]
Criminal - Indian Penal Code, 1860, ss. 302 and 498A - Murder - Cruelty - Conviction - Challenged - Appellant convicted for offences punishable u/ss. 302 and 498A of IPC - Trial Court held that appellant was harassing the deceased and her family members as they were not able to give him the money demanded - Trial Court disbelieved the plea of the appellant that the deceased had been killed when a stone fell on her head while she was trying to pull a quilt from over the tin roof of the shed in front of the house - Conviction upheld by HC - Hence, present appeal - Whether the course adopted and the conclusions reached by both the Courts, erroneous or illegal? - Appellant submitted that Trial Court and HC wrongly disbelieved the plea of alibi of the appellant - Held, burden of establishing the plea of alibi lay upon the appellant - Plea of alibi had to be proved with absolute certainty so as to completely exclude the possibility of the presence of the appellant - When a plea of alibi is raised by an accused it is for the accused to establish the said plea by positive evidence which has not been led in the present case - In the present case, appellant failed to bring on record any facts or circumstances which would make the plea of his absence even probable, let alone, being proved beyond reasonable doubt - However, failure of the plea of alibi would not necessarily lead to the success of the prosecution case which has to be independently proved by the prosecution beyond reasonable doubt - Being aware of the aforesaid principle of law, Trial Court as also the HC examined the circumstantial evidence to exclude the possibility of the innocence of the appellant - Trial Court and HC examined all the material circumstances to ensure that the guilt of the appellant was established beyond reasonable doubt - No reason to disagree with the conclusion arrived at by the Trial Court as also the HC - Appeal dismissed.

Dr. Indira Gupta vs Agra Development Authority, Through its Secretary, Agra [NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, 27 Aug 2010]
Consumer Protection - Land & Property - Consumer Protection Act, 1986 - Deficiency of service - Petitioner was allotted an MMIG House under a Hire Purchase Scheme and that the rate was enhanced by the respondent from Rs.1,29,000/- to 1,69,000/- - Although, petitioner paid the required 3 installments, the Respondent wrongly demanded Rs.22,818/- being the third installment along with interest of Rs.5880/- - Possession of the house was handed over to the petitioner but no development work and construction took place - Therefore, petitioner filed a complaint before the District Forum on the grounds of deficiency of service against the respondent and sought refund of the amount deposited by her and also compensation totaling Rs.1,73,300/- - District Forum accepted the complaint filed by the petitioner - On appeal, State Commission held that no evidence was filed by the petitioner that development work had not taken place and she was also irregular and whimsical in depositing the installments of money - Hence, deduction of 20% from the amount deposited would be appropriate - State Commission further held that since the balance amount of Rs.53,700/- after deduction was not refunded in time, the petitioner will be entitled to 6% interest on the above sum of Rs.53,700/- - Hence, present petition - Whether order of the State Commission could be upheld? - Held, petitioner had adhered to the payment schedule as stipulated by the respondent - Fact that the respondent had erred in not giving the possession of the house to the petitioner as envisaged under the Scheme and in the absence of any Rules and Regulations by which 20% could be deducted from the refunded amount, order of the State Commission could not be uphold, therefore, set aside - Respondent directed to pay Rs. 66,000/- along with 15% interest to the petitioner as ordered by the District Forum alongwith Rs. 2000/- as cost of litigation - Order accordingly.

Prahlad Mahto and others vs State of Jharkhand [SUPREME COURT OF INDIA, 27 Aug 2010]
Criminal - Code of Criminal Procedure, 1973 - HC and trial court held accused nos. 1 to 7 (appellants) were involved in the death of the deceased - Appellants filed appeal against said order submitting that post-mortem report and the injury report of the deceased and the injured witnesses respectively did not show the presence of any injuries that could have been caused by them - Whether appeal filed by appellants against order of the HC could be allowed? - Held, it is often difficult to arrive at a true assessment as to what has happened but in a case of deep rooted group 2 rivalry and animosity between the rival parties and in the face of the fact that a large number of accused have been involved, the possibility of false implication cannot be entirely ruled out - In present case, whereas accused no. 4, 5 and 6 have been attributed specific injuries, the others have been given general roles that they too had caused injuries - There is thus possibility that some of the accused could have been booked falsely - Hence, appeal of accused no. 4, 5 and 5 dismissed and appeal of accused no. 1, 2, and 3 allowed - Appeal disposed of.

State of Andhra Pradesh vs M. Narasimha Rao [SUPREME COURT OF INDIA, 27 Aug 2010]
Criminal - Indian Penal Code, 1860, s. 302 - Murder - Acquittal - Sustainability - Respondent allegedly murdered the deceased - Trial Court convicted the respondent for murder - Respondent filed appeal before the HC - HC acquitted the respondent - Hence, present appeal by the appellant/State - Whether acquittal by HC is sustainable - Held, evidence of the eye-witness was completely trustworthy - Eye-witness account was fully corroborated by the medical evidence - Eye-witness fully supported the prosecution story, however, HC, erroneously, did not consider the evidence of eye-witness - No delay in recording of the FIR - Therefore, impugned HC order is set aside and convicted the respondent u/s. 302 of IPC - Appeal allowed.

M. S. Patil vs Gulbarga University and others [SUPREME COURT OF INDIA, 27 Aug 2010]
Service - Education - Ad-hoc appointment - Rule of equity - Consideration of - 1st respondent/University invited application for the post of Reader from reserved category candidates - Appellant/General Category candidate applied for the post and 1st respondent selected appellant on the ground that rest of the reserved category candidates did not have the merit - 1st respondent/reserved candidate challenged appellant's appointment before HC - 1st respondent contended that appellant was closely related to the Head of concerned Department and appellant's appointment was the result of favouritism - Single Judge allowed 1st respondent's writ petition, however, allowed the appellant to continue the post till completion of the new selection process - Appellant challenged the Single Judge order before the DB - DB dismissed appellant's appeal - Appellant challenged the DB order before the SC - SC, in its interim order, ordered status quo - Whether appellant is entitled to continue in the post for the reason that he had been continued in the post for the last 17 years - Held, in service law there is no place for the concepts of adverse possession or holding over - Appellant has been occupying the post for the last 17 years that lawfully belonged to someone else on the strength of gratuitous circumstances and the delay in final disposal of the matter, therefore, equitable consideration is against the favour of appellant - Therefore, appellant is not entitled to continue on the present ad-hoc arrangement and hence, direction issued to the 1st respondent/University to fill up the vacancies by issuing fresh notification - Appeal dismissed.

Shalimar Chemical Works Limited vs Surendra Oil and Dal Mills (Refineries) and others [SUPREME COURT OF INDIA, 27 Aug 2010]
Intellectual Property - Civil Procedure - Code of Civil Procedure, 1908, O. 41, r. 27 - Trade and Merchandise Marks Act, 1958, s. 31 - Permanent injunction - Infringement of registered trade mark - Appellant filed suit seeking permanent injunction restraining the respondents from marketing or offering for sale edible oil products bearing the name 'Shalimar' on containers, labels or wrappers, or using any name identical or deceptively similar to the appellant's trade mark - Trial court dismissed said suit on the ground that appellant did not file the trade mark registration certificates in their original - Appellant filed appeal against said order with an application u/o. 41, r. 27 for accepting the originals of the trade mark registration certificates and the allied documents as additional evidence - HC allowed said application together with the appeal and allowed the appellant's suit for granting permanent injunction - On appeal, DB held that there was no occasion or justification for admitting the original trade mark registration certificates at the appellate stage as additional evidence - Hence, present appeal - Whether original trade mark registration certificates could be admitted at the appellate stage as additional evidence? - Held, DB was wrong in taking the view that the production of additional evidence was not permissible u/O. 41, r. 27 of CPC - Additional documents produced by the appellant were liable to be taken on record as provided u/O. 41, r. 27 (b) of CPC in the interest of justice - But DB was right in holding that the way the Single Judge disposed of the appeal caused serious prejudice to the respondents - Therefore, proper course for the DB was to set aside the order of the Single judge therefore order of the DB set aside - Matter remitted to the Single Judge to proceed in the appeal from the stage the original of the registration certificates were taken on record as additional evidence - Appeal allowed.

Oriental Insurance Company Limited vs Dharam Chand and others [SUPREME COURT OF INDIA, 27 Aug 2010]
Carriers & Transportation - Insurance - Motor Vehicles Act, 1988 - Compensation - Premium cheque for the insurance policy was received by the appellant (insurance company), on 7.5.1998 at 4.00 pm and a cover note was issued at the same time - In cover note, it was stated that the insurance would commence from 8.5.1998 and expire on 7.5.1999 - Motor accident in regard to which the claim case was filed took place at 8:30 pm on 7.5.1998 - Respondent filed insurance claim which was rejected by appellant submitting that accident took place before the commencement of the insurance as indicated in the cover note - Both trial court and HC turned down the plea and held that insurance company liable to pay the compensation amount - Hence, present appeal - Whether insurance company is liable to pay the compensation amount to the respondent? - Held, since the cheque for the premium amount was received by the company at 4:00 pm on 7.5.1998, the insurance must be deemed to have commenced from that time and 4 hours later when the vehicle met with the accident, the owner must be deemed to have been covered by the insurance policy - Appeal dismissed.

Union of India and another vs Bhaskarendu Datta Majumdar [SUPREME COURT OF INDIA, 27 Aug 2010]
Service - Selection - Confidential Report - Failure to consider good entries - Respondent/Chief General Manager applied for the post of Director (Marketing) in the 2nd appellant/Corporation - Respondent was selected and his name was forwarded by Public Enterprises Selection Board (PESB) to Appointments Committee of the Cabinet (ACC) - ACC dropped the name of respondent on the ground that respondent was subjected to disciplinary proceedings - ACC directed 2nd appellant to fill up the vacancy through a fresh process - Respondent challenged the ACC order before HC - Single Judge dismissed respondent's petition holding that the Court could not interfere with the exclusive jurisdiction of ACC - Respondent challenged Single Judge order before DB - DB allowed respondent's appeal on the ground that the ACC had given no reasons for rejecting PSEB's recommendation with regard to respondent's candidature - Whether DB order is sustainable - Held, respondent was exonerated after various enquiries and investigations and had obtained two promotions - Entry of 'doubtful integrity' in respondent's confidential report was removed and assessed as 'excellent' and 'outstanding' in the relevant years - Appellant was not able to show any record indicating the reasons as to why the ACC had differed with the opinion of the PESB - No merit in the appeal and impugned DB order is confirmed - Appeal dismissed.

A. M. Bharvad and others vs State of Gujarat and others [SUPREME COURT OF INDIA, 26 Aug 2010]

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