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indlaw updates
Judgments
Om Parkash vs Union of India and Others
[SUPREME COURT OF INDIA, 08 Feb 2010]
(A) Land & Property – Land Acquisition Act, 1894, ss. 4, 6 – Land acquisition – Declaration u/s. 6 – Limitation - Respondent/State issued notification u/s. 4 of the Act as a part of land acquisition proceedings - Some land owners challenged the notification before HC – HC ordered interim stay – Respondents issued declaration u/s. 6 of the Act after the vacation of stay – Some land owners challenged the declarations and HC quashed the declarations with respect to certain lands covered under the notification - Appellant/land owners challenged the declaration before HC – Appellants contended that respondents had failed to issue declaration within 3 years from the date of the issuance of notification u/s. 4, therefore, declaration was time barred – HC, by impugned order, dismissed appellants writ petitions holding that there was a delay by the appellants in challenging the declaration – Respondents contended that they were restrained from the issuance of declaration due to the operation of HC stay – (a) Whether the issuance of declaration was within the time - Held, interim order of stay granted in one of the matters of the land owners would put complete restraint on the respondents to have proceeded further to issue declaration u/s. 6 of the Act - Had respondents issued the declaration during the period when the stay was operative, then they may have been liable for committing contempt of court – Therefore, period in which the HC stay was in operation is to be deducted for computing the period of limitation for the issuance of declaration u/s. 6 of the Act, hence declaration is within time – (b) Whether there was any delay or laches from the side of appellants in challenging the issuance of declaration – Held, if the appellants were under some bona fide mistake and had not challenged the issuance of declaration u/s. 6 of the Act within a reasonable time then on the ground that there was an eclipse period during which they were not supposed to take any legal action, would be of no help to them – Therefore, HC was justified in not entertaining appellants petitions on the ground of delay and laches – Further, even though, appellants have tried to attempt to explain the delay but such a long delay cannot be condoned more so, when proceeding of acquisition was initiated 30 years ago – It is inequitable to quash the declaration, after such a long lapse of time, so as to grant liberty to the appellants to challenge same in accordance with law – Appeals dismissed.(B) Parliament & Legislature - Land & Property – Land Acquisition Act, 1894, ss. 6, 5A – Piecemeal declaration – Power of Executive – Scope – Held, Executive can issue piecemeal declaration u/s. 6 of the Act and it is not necessary to issue one single declaration for whole of the area which is covered under the notification – In order to meet the exigencies wherein land owners may not prefer objections even after inviting the objections u/s. 5A, power has been given by the Parliament to the Executive to issue declarations in piecemeal, wherever it may be feasible to implement the scheme of the Act – Appeals dismissed.(C) Land & Property – Practice & Procedure - Land Acquisition Act, 1894, s. 6 – Land acquisition – Respondent/State issued declaration u/s. 6 of the Act – Some land owners challenged the declaration before HC – HC quashed the declaration - Whether appellant/land owners in the present appeal can claim benefit of such quashment in some other matter - Held, no - If declaration is quashed by any Court, it would only enure to the benefit of those who had approached the Court and it would certainly not extend the benefit to those who had not approached the Court or who might have gone into slumber – Therefore, final quashment of the declaration u/s. 6 of the Act by any Court, in some other matter, cannot be extended to the benefit of the appellants in the present matter – Appeals dismissed.
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Mulla and Another vs State of Uttar Pradesh
[SUPREME COURT OF INDIA, 08 Feb 2010]
(A) Criminal - Indian Penal Code, 1860, 148, 149, 302, 364A and 365 - Rioting - Kidnapping for ransom - Unlawful assembly - Murder - Death sentence - Challenged - Appellants were charged u/ss. 148, 302, 365 all r/w s. 149, IPC - Trial Court by giving adequate reasons, awarded death sentence to both the appellants which was confirmed by the HC - Hence, present appeal - (A) Accused persons were not named in the FIR - FIR was lodged against unknown persons - Held, prosecution through their witnesses, established that it was the appellants, who along with few more persons committed the offence by killing five persons mercilessly for non-payment of ransom amount which they demanded for the release of five persons kidnapped by them - In view of the same, though none was named in the FIR, subsequently, the name of the appellants came into light during investigation - (B) Delay in conducting the Test Identification Parade (TIP) - Held, merely because there was delay, the outcome of the identification parade cannot be thrown out if the same was properly done after following the procedure - In the present case, evidence of PWs 2 and 3 who identified the appellants coupled with the statement of official witnesses who accompanied the Magistrate clearly proved the fact that TIP was conducted in accordance with the established procedure - (C) Death sentence - Whether the death sentence awarded by the Trial Court affirmed by the HC justifiable and acceptable? - Held, in the present case, along with the aggravating circumstances, these three factors must take into account, 1) the length of the incarceration already undergone by the convicts; 2) the current age of the convicts; and finally, 3) circumstances of the convicts generally - In the present case, one of the appellant is around 65 years old - Charges were framed in 1999 and they have been in custody since 1996 - Appellants have been in prison for the last 14 years - Despite the nature of the crime, death penalty can be substituted with life sentence - Appeal disposed of.(B) Criminal - Indian Evidence Act, 1872, s. 9 - Test Identification Parade - Object - Held, evidence of test identification is admissible u/s. 9 of the Indian Evidence Act - Necessity for holding an identification parade can arise only when the accused persons are not previously known to the witnesses - Object of conducting a test identification parade first is to enable the witnesses to satisfy themselves that the accused whom they suspect is really the one who was seen by them in connection with the commission of the crime - Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence - Appeal disposed of.(C) Criminal - Indian Evidence Act, 1872, s. 9 - Delay in conducting Test Identification Parade - Effect thereof - Held, principles regarding identification parade are (1) identification parade ideally must be conducted as soon as possible to avoid any mistake on the part of witnesses; (2) this condition can be revoked if proper explanation justifying the delay is provided; and, (3) the authorities must make sure that the delay does not result in exposure of the accused which may lead to mistakes on the part of the witnesses - Appeal disposed of.(D) Criminal - Code of Criminal Procedure, 1973, s. 354(3) - Indian Penal Code, 1860, s. 302 - Death penalty - Test for the determination of the `rarest of the rare' category of crimes inviting the death sentence thus includes broad criterions i.e. (1) the gruesome nature of the crime, (2) the mitigating and aggravating circumstances in the case - These must take into consideration the position of the criminal, and (3) whether any other punishment would be completely inadequate - Court must satisfy itself that death penalty would be the only punishment which can be meted out to the convict - Appeal disposed of.
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Sanghvi Reconditioners Private Limited vs Union of India And Others
[SUPREME COURT OF INDIA, 05 Feb 2010]
Customs - Indirect Tax - Customs Act, 1962, ss. 28, 28AB, 127B and 127C - Clandestine removal - Demand - Interest - Penalty - Investigations revealed that appellant had clandestinely availed of benefit of import duty exemption Notification No.211/83-Cus dt. 23-7-1983, on the import of multiple consignments of engineering cargo as ‘Ship Spares’ - Show cause notices issued to appellant demanding customs duty - Commissioner confirmed the demand of customs duty besides interest and penalty u/s. 28AB of Act - Appellant filed an application u/s. 127B of Act with the Settlement Commission, disclosing and admitting a duty liability - Settlement Commission allowed said application and amount of additional duty determined to be payable was duly paid by the appellant - In respect of 8 consignments, settlement commission confirmed the additional customs duty demanded from the appellant under the order of adjudication by the Commissioner - Appellant filed appeal against said order and sought to urge an additional ground to the effect which was declined by HC - Hence, present appeal - Whether order of settlement commission and HC could be upheld? - Held, yes - There was a shift in the stand of the appellant before the HC when sale of the imported components by them to a third party stood proved on the basis of overwhelming documentary evidence on record, disentitling them to the benefit of the exemption notification - Additional ground sought to be raised before HC was not only an afterthought, adjudication thereon did involve investigation into facts and, therefore, the decision of the HC in not entertaining the additional ground did not suffer from any infirmity - Order of the Settlement Commission did not suffer from any error, legal or factual, and, therefore, the HC was fully justified in dismissing the writ petition - Appeal dismissed.
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G. V. Siddaramesh vs State of Karnataka
[SUPREME COURT OF INDIA, 05 Feb 2010]
Criminal - Dowry Prohibition Act, 1961, ss. 3, 4 and 6 - Indian Penal Code, 1860, ss. 304-B and 498-A - Indian Evidence Act, 1872, s. 113-B - Dowry harassment - Cruelty - Dowry death - Conviction - Challenged - Appellant was convicted u/ss. 3 and 4 of the Act and also for offence punishable u/ ss. 304-B and 498-A, IPC - On appeal, HC allowed the appeal in part and modified the sentence for the offence punishable u/s. 3 of the Act - Hence, present appeal - Essential ingredients which need to be proved to attract the offence of dowry death are (i) Death is caused in unnatural circumstances; (ii) Death must have occurred within seven years of the marriage of the deceased; (iii) It needs to be shown that soon before her death, the deceased was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry - Held, in present case, it was proved beyond doubt that the death was an unnatural death - Second ingredient was also proved as death of the deceased took place within the 7 year timeframe - Third ingredient, prosecution established that there was a demand for dowry prior to the death of the deceased, which was met by the family of the deceased - Therefore, all the ingredients of s. 304-B, IPC satisfied, pointing towards the guilt of the appellant - However, keeping in view the facts and circumstances of the case, sentence reduced from life imprisonment awarded by HC to 10 years R.I - Appeal dismissed subject to the modification of sentence - Appeal disposed of.
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Tukaram S. Dighole vs Manikrao Shivaji Kokate
[SUPREME COURT OF INDIA, 05 Feb 2010]
Election - Representation of the People Act, 1951, ss. 86, 101(b), 116-A and 123(3) - Indian Evidence Act, 1872, s. 74 – Respondent was declared elected in parliamentary constituency election - Appellant filed petition alleging that respondent had indulged in corrupt practices by appealing to the Maratha community to vote on the basis of community and also placed VHS audio cassette on record to proved his allegation - Tribunal dismissed the appeal and held that since the contents of the cassette and the transcripts had not been proved, the allegation of the appellant could not be accepted - Hence, present appeal - Whether Tribunal was justified in discarding the audio cassette placed on record by the appellant to prove the allegation of appeal by the respondent to the voters to vote on communal ground, amounting to a corrupt practice within the meaning of s. 123(3) of the Act? - Held, yes - Though it would neither be feasible nor advisable to lay down any exhaustive set of rules by which the admissibility of such evidence may be judged but it needs to be emphasised that to rule out the possibility of any kind of tampering with the tape, the standard of proof about its authenticity and accuracy has to be more stringent as compared to other documentary evidence - Appellant has miserably failed to prove the authenticity of the audio cassette as well as the accuracy of the speeches purportedly made by the respondent as he did not lead any evidence to prove that the audio cassette produced on record was a true reproduction of the original speeches by the respondent or his agent - Tribunal’s order upheld - Appeal dismissed.
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Tilak Raj vs State (NCT of Delhi)
[DELHI HIGH COURT, 04 Feb 2010]
Criminal - Indian Penal Code, 1860, ss. 445, 457, 458 and 459 - Code of Criminal Procedure, 1973, s. 313 - Grievous hurt - Trespass - Conviction u/ss. 457 and 459 - Trial Court convicted appellant u/ss. 457 and 459 of IPC - Appellant contended that he along with his co-accused were apprehended when moving on the road and beaten by the public - Hence, present appeal - Whether appellant rightly convicted u/ss. 457 and 459 of IPC? - Held, appellant failed to explain what he and the co-accused were doing in the area they were apprehended from - In the absence of any such explanation from the appellant, no reason to disbelieve the testimony of PW-1 and PW-2 to the effect that, in fact, the appellant as well as the co-accused were caught after causing injuries to the complainant - Since the appellant and/or the co-accused used criminal force against the complainant after trespassing on her property, the case is squarely covered by sixth clause of s. 445 of IPC and they are, accordingly, guilty of offence punishable u/s. 457 IPC r/w. s. 34 of IPC - In respect of conviction u/s. 459 of IPC, neither the appellant nor the co-accused attempted to cause death while trespassing - Moreover, a perusal of the medical certificate MLC of the complainant shows that the injuries sustained by her were simple in nature and were caused by a blunt object - Therefore, appellant’s conviction u/s. 459 IPC is converted into conviction u/s. 458 of IPC r/w. s. 34 of IPC - Order accordingly.
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(1) Sushila Digamber Naik; (2) Kailas Narsaiya Adep; (3) Nilofar Shaikh; (4) Sarojini Mahabal Shetty; (5) Mahendra kathrani; (6) Sunil Digamber Naik; (7) Eslinda Michael Serao; (8) K. C. Govindan; (9) Asha Rajendra Jain; (10) Mangala Pansare; (11) Hansa Bansidhar Bharucha; (12) Natha R. Kadam; (13) Henry S. Fernandes; (14) Manorama Manohar Rane; (15) Gopal S. Amin; (16) Smitha Jayaram; (17) Pramod Kirdat Patil; (18) Salim Khan; (19) Shantaram S. Shetty vs (1) Maharashtra Housing And Area Development Authority; (2) Mumbai Housing & Area Development Board; (3) Executive Engineer, Bandra Division; (4) Kher Nagar Ganeshkrupa Cooperative Housing Society Limited; (5) A. A. Estate Private Limited
[BOMBAY HIGH COURT, 04 Feb 2010]
Land & Property - Trusts & Associations - Maharashtra Housing and Area Development Act, 1976, 95A - Redevelopment scheme - Development Control Regulations for Greater Mumbai, 1991 - Jurisdiction - Respondent No.4-society was the licensee of the respondent no.1 (Maharashtra Housing and Area Development Authority (MHADA) - Members of respondent no.4-society decided to redevelop its property - 45 members (including petitioners) issued consent letters in support of the redevelopment project - However, petitioners refused to vacate their tenements - Respondent no.3 passed the impugned order calling upon the petitioners to vacate their premises within specified period failing which summary eviction of the petitioners u/s. 95A of the Act was ordered - Hence, present petition - (A) Jurisdiction - Petitioners submitted that provisions of s. 95A of the Act are contained in Chapter VIII of the Act and consequently, respondent no.2 and/or respondent no.3 being an Officer of respondent no.2 would have no jurisdiction to take any action u/s. 95A of the Act - Held, after the amendment, provisions of s. 95A of the Act were made applicable to the provisions of DCR 33(5) - In present case, building in question was situated in a MHADA layout - Thus as per the amended provisions of DCR 33(5), respondent nos. 2 and 3 were empowered to invoke the provisions of s. 95A of the Act - (B) Petitioners who had earlier given their written consent for the redevelopment project executed declarations withdrawing their consent for the redevelopment project – In view of this, petitioners submitted that the redevelopment scheme was not supported by 70% of the members of the respondent no.4-society - Held, petitioners have not challenged the resolution for redevelopment passed by the society or the agreement with the developer in any Court - Petitioners have also not initiated any proceedings seeking cancellation/withdrawal of the consent given by the petitioner nos. 10 to 19 - Contention of the petitioners that in view of the subsequent withdrawal of consent, the said redevelopment scheme does not have the consent of 70%, is devoid of merits and is rejected - Writ petition dismissed.
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Ashok Khatri vs State (NCT of Delhi)
[DELHI HIGH COURT, 03 Feb 2010]
Criminal - Code of Criminal Procedure, 1973 - Bail application - Petitioner sought bail on the grounds that other co-accused have already been granted bail and he was the only one who has been refused bail though fatal blow was not attributed to the petitioner - Whether bail could be granted to petitioner or not? - Held, as per status report filed by prosecution, wife of deceased has stated that petitioner had taken the sword from the hand of his father and hit the deceased with it - Hence, main perpetrator of the crime was the petitioner and therefore he cannot be placed on the same footing as the other co-accused - No ground is made out for grant of bail - Bail application dismissed.
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Management of Premier Instruments and Controls Limited vs (1) Presiding Officer, Labour Court; (2) T. Gokulakannan; (3) T. Murugaprakasam
[MADRAS HIGH COURT, 03 Feb 2010]
Labour & Industrial Law – Industrial Disputes Act, 1947, s. 11 – Award of reinstatement – Legality of – 2nd and 3rd respondent/workmen were dismissed from service for proved misconduct – Respondents raised industrial dispute – Labour Court ordered reinstatement with 50 per cent back wages – Petitioner/management reinstated respondents, however, petitioner challenged the direction of back wages in the present petition - Held, if the charge of dishonesty is so severe, no one is expected to restore the very same workers to service, even pending the challenge to the award, however, petitioner, in the present case, reinstated the respondents for their own reasons – Therefore, such reinstatement would be a factor, which works against the petitioner in their assailing the award, hence order of reinstatement need not be disturbed – However, direction issued to the respondents to withdraw 50 per cent of the award amount deposited by the petitioner in the court and petitioner can withdraw 50 per cent balance amount lying in the court – Petition dismissed.
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Dabur India Limited, Delhi vs (1) Colortek Meghalaya Private Limited, Meghalaya; (2) Godrej Sara–Lee, Mumbai
[DELHI HIGH COURT, 02 Feb 2010]
Civil Procedure - Media & Entertainment - Code of Civil Procedure, 1908, o. 39 rr. 1 and 2 - Injunction - Advertisement - Appellant and respondents both manufactures and markets mosquito repellant cream under different brand name - Appellant filed application for injunction u/o. 39 rr. 1 and 2 of CPC alleging that respondent’s advertisement/commercial of mosquito repellent disparages its product and, therefore, the respondent should be injuncted from further telecasting of said advertisement/commercial - Single Judge rejected said application for injunction and held that said commercial does not fall within the tort of ‘malicious falsehood’ and that it was not directed against the appellant - Hence, present appeal - Does the commercial telecast by the respondents disparage the product of the appellant and if so, whether the appellant is entitled to an injunction against the telecast? - Held, no - There is nothing in the commercial to suggest a negative content or that there was a disparagement of the appellant’s product - Said commercial merely gives the virtues of the product of the respondents, namely, that it has certain ingredients which perhaps no other mosquito repellant cream has - While comparing its product with any other product, any advertiser would naturally highlight its positive points but this cannot be negatively construed to mean that there is a disparagement of a rival product - That being so, whether the appellant’s product is targeted or not becomes irrelevant - Appeal dismissed.
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(1) Ajit Singh; (2) Kulbeer Singh @ Kuldeep vs State (Government of NCT of Delhi)
[DELHI HIGH COURT, 02 Feb 2010]
Criminal - Indian Penal Code, 1860, ss. 308/341/427 r/w. 34 - Code of Criminal Procedure, 1973, ss. 397/401 - Trial Court ordered to frame charges u/s. 308/341/427 r/w. 34 of IPC against petitioners - Petitioners contended that Court cannot act merely as a post office or mouth piece of the prosecution and if two views are possible, judge has the right to discharge the accused for the particular offence - On the other hand state contended that injuries were caused by petitioners on the head which is a vital part of the body, hence no infirmity or ambiguity in the impugned order - Whether prima facie there are sufficient grounds for framing charges against the petitioners or not? - Held, as per prosecution case, the injured was hit with an iron rod on his head which can cause death - If such a blow leads to death, it could be an offence punishable u/ss. 304 and 302 of IPC, but if the person survives, it is still a grave offence u/s. 308 IPC - Moreover, both the petitioners have been named by the complainant in his statement - Thus, prima facie the involvement of both the petitioners is there in this case - No infirmity or ambiguity in the impugned order - Revision petition dismissed.
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Assistant Commissioner of Income Tax and Another vs Hotel Blue Moon
[SUPREME COURT OF INDIA, 02 Feb 2010]
Income Tax & Direct Taxes - Income Tax Act, 1961, ss. 132, 143(2) and 158BC(a), Chapter XIV-B - Block assessment - Show cause notice - Whether service of notice on the assessee u/s. 143(2) of IT Act within the prescribed period of time is a pre-requisite for framing the block assessment under Chapter XIV-B of IT Act? - Held, yes - Section 158 BC(b) of IT Act is a procedural provision for making a regular assessment applicable to block assessment - Section 158 BC(c) of IT Act would require the AO to compute the income as well as tax on completion of the proceedings to be made - In case of default in not filing the return or not complying with the notice u/ss. 143(2)/142of IT Act, AO is authorized to complete the assessment ex-parte u/s. 144 of IT Act – Notice u/s. 143(2) of IT Act should be issued within one year from the date of filing of block return - Omission on the part of the AO to issue notice u/s. 143(2) of IT Act cannot be a procedural irregularity and the same is not curable and, therefore, the requirement of notice u/s. 143(2) of IT Act cannot be dispensed with - Even for the purpose of Chapter XIV-B of the Act, for the determination of undisclosed income for a block period u/s. 158 BC of IT Act, the provisions of ss. 142 and 143 of IT Act are applicable and no assessment could be made without issuing notice u/s. 143(2) of IT Act - Revenue’s appeals dismissed.
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G. Vallikumari vs Andhra Education Society and others
[SUPREME COURT OF INDIA, 02 Feb 2010]
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State of Uttar Pradesh and Others vs Saroj Kumar Sinha
[SUPREME COURT OF INDIA, 02 Feb 2010]
Service – Uttar Pradesh Government Servant (Discipline & Appeal) Rules, 1999, r. 7(5) – Non-supply of relevant documents – Order of removal – Legality of – Respondent was suspended from the service on account of an allegation of misconduct – Respondent was issued the charge sheet – Respondent made a written request to enquiry officer demanding copies of the documents relied upon in the charge sheet – Enquiry officer did not provide the copies of documents – Respondent requested for change of the enquiry officer, however, enquiry officer completed his enquiry and submitted his report in the meantime – Government appointed another enquiry officer – Newly appointed enquiry officer upheld the findings of the former enquiry officer – Respondent, again, send a reminder for supply of copies of the relevant documents, however, he was served with a show cause notice proposing the penalty of dismissal – Respondent challenged the show cause notice before HC – HC gave liberty to respondent to put his case before the concerned authority – Respondent gave reply to the show cause notice and sought, again, the copies of relevant documents – Appellant directed the disciplinary authority to supply the copies, however, disciplinary authority did not supply the documents – Revisional authority recommended the punishment of removal of respondent from service – Respondent challenged the recommendation before HC – HC directed the appellant to consider the case of respondent – Appellant passed an order of removal – Respondent challenged the order of removal before HC – HC, by its impugned order, quashed the order of removal and directed reinstatement – Whether HC order is valid in law – Held, copies of the documents which formed the foundation of the charge sheet against the respondent have been denied to the respondent, hence mandate of the r. 7(5) of the Rules is disregarded - Even in the absence of delinquent it is incumbent on the enquiry officer to record the statement of witnesses mentioned in the charge sheet, however, enquiry officer, in the present case, did not record any oral evidence of any witness nor proved any documentary evidence, hence charges against the respondent have not been proved conclusively – Further, enquiry officer failed to fix any date for conduct of the enquiry and hence, actions of the enquiry officers in preparing the reports ex-parte without supplying the relevant documents has resulted in miscarriage of justice to the respondent - Appellants have miserably failed to give any reasonable explanation as to why the documents have not been supplied to the respondent – Therefore, HC has rightly observed that the proceedings are vitiated having been conducted in complete violation of principles natural justice and total disregard of fair play – No interference – Appeal dismissed.
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Cantonment Board, Meerut and Another vs K. P. Singh and Others
[SUPREME COURT OF INDIA, 01 Feb 2010]
Contract & Commercial - Carriers & Transportation - Indirect Tax - Cantonments Act, 2006, s. 60 - Maxim actus curiae neminem gravabit - Refund - Collection of toll tax - As per notification dt. 8-01-2005 bids were invited for levying toll tax upon entry of commercial motor vehicles within territorial limits of Meerut Cantonment - Tender submitted by respondent Nos.1 and 2 jointly came to be accepted - After the finalization of the tender, respondent No.5 submitted an application offering to pay 1,05,000/- per day - Respondent No. 5 also filed writ petition praying that till the finalization of fresh auction, respondent No.5 should be allowed to pay at the rate of 1,25,000/- per day for the collection of toll tax - HC at the time of passing the orders on the application for stay found that though respondent No.5 was willing to pay Rs.1,25,000/- per day for the right to collect toll tax, yet respondent Nos.1 and 2 had suo motu made an offer to pay Rs.1,31,000/- per day for the right to collect toll tax - HC as an interim order directed respondent Nos.1 and 2 to deposit Rs.1,31,000/- per day to levy and collect the toll tax during the interregnum - Later at the time of final order HC held that since petition of respondent no. 5 was dismissed as not pressed, interim order accepting the bid of respondent nos. 1 and 2 of Rs.1,31,000/- would merge with the final order and respondent No.1 and 2 would be entitled to get refund of the excess amount of Rs. 29,000/- per day since their final offer which was accepted by the petitioner was only of Rs.1,02,000/- - Hence, present appeal - Whether refund could be granted to respondent nos. 1 and 2? - Held, no - In view of the maxim actus curiae neminem gravabit, no party could be allowed to take benefit of its own wrongs by getting the interim orders and thereafter blaming the Court - Respondent Nos. 1 and 2 cannot take advantage and claim refund because of the fact that this was their voluntary offer and they were not directed to pay the amount that they did - HC's order is unsustainable, hence set aside - Petitioner not liable to refund anything in favour of respondent Nos.1 and 2 - Appeal allowed.
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Union Of India vs R. K. Chopra
[SUPREME COURT OF INDIA, 01 Feb 2010]
Service - Central Civil Services (Revision Pay) Rules, 1997, r. 7 – Fundamental Rules, 53(1)(ii)(a) - Subsistence allowance – Revision of – Respondent was placed under suspension on account of a criminal case registered by the Central Bureau of Investigation – Respondent received subsistence allowance and, the same was later enhanced to 50 per cent - Respondent sought revision of his subsistence allowance based on 5th Pay Commission Report – Appellant rejected the representation of respondent – Respondent, in the meantime, was dismissed from service after being convicted by the criminal court – Respondent filed an application before the Tribunal seeking revision of his subsistence allowance on the revised pay-scale – Tribunal allowed respondent’s application – Appellant challenged the Tribunal order before HC – HC dismissed the appeal – Whether appellant is entitled to get the revised subsistence allowance – If the revision of pay takes effect from a date prior to the date of suspension of a Government servant then he would be entitled to benefit of increment in pay and in the subsistence allowance for the period of suspension, but if the revision scale of pay takes effect from a date falling within the period of suspension then the benefit of revision of pay and the subsistence allowances will accrue to him, only after reinstatement depending on the fact whether the period of suspension is treated as duty or not - Held, Revised Pay Rules came into force during the period when the respondent was under suspension and later he was dismissed from service – Therefore, the benefit of pay revision or the revision of subsistence allowance did not accrue to respondent - Tribunal as well as the HC have committed an error in holding that the respondent is entitled to the benefit of Revised Pay Rules, hence, the impugned orders are set aside – Appeal allowed.
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Rakhi Ray and Others vs High Court of Delhi and Others
[SUPREME COURT OF INDIA, 01 Feb 2010]
Service - Advocates & Judges - Delhi Higher Judicial Service Rules, 1970 – Constitution of India, 1950, arts. 14, 16(1) - Appointment of District Judges – Selection from the existing list – Entitlement - 1st respondent/HC issued advertisement for filling up 20 vacancies of District Judges – All the 13 General Category vacancies were filled up according to the merit list, however, 2 posts reserved for Scheduled Castes candidates and 4 posts meant for Scheduled Tribes candidates could not be filled up for non availability of suitable candidates – HC, in the meantime, ordered to fill up the subsequent 3 vacancies from the existing list while disposing the writ petitions of some unsuccessful candidates - Appellants, General Category candidates having lower ranks in the merit list, sought directions for their appointment – Whether appellants are entitled to get appointments from the existing list - Held, any appointment made beyond the number of vacancies advertised is without jurisdiction, being violative of arts. 14 and 16(1) of the Constitution, thus, a nullity, inexecutable and unenforceable in law - Waiting list cannot be used as a reservoir, to fill up the vacancy which comes into existence after the issuance of notification/advertisement and therefore, unexhausted select list/waiting list becomes meaningless and cannot be pressed in service anymore - 13 vacancies of the General Category had been advertised and filled up, the selection process so far as the General Category candidates was concerned, stood exhausted and the unexhausted select list just a record – Further, a person whose name appears in the select list does not acquire any indefeasible right of appointment and empanelment at the best is a condition of eligibility for purpose of appointment and by itself does not amount to selection or create a vested right to be appointed – Therefore, once 13 notified vacancies were filled up, the selection process came to an end, thus, there could be no scope of any further appointment – Appeals dismissed.
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Navin Kumar Jha vs Lt. Governor and Others
[SUPREME COURT OF INDIA, 01 Feb 2010]
Practice & Procedure - Held, in view of SC judgement of Rakhi Ray & Ors. vs. High Court of Delhi & Ors. 2010 INDLAW SC 78, special leave petitions dismissed.
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Ramesh Kumar vs High Court of Delhi and Another
[SUPREME COURT OF INDIA, 01 Feb 2010]
Advocates & Judges - Service - Delhi Higher Judicial Service Rules, 1970, r. 10 - Constitution of India, 1950, arts. 14, 16(1) - Appointment of District Judges - Selection without facing interview - Respondent No.1, HC issued an advertisement for filling up 20 vacancies of District Judges - Out of these 20 vacancies, 3 were to be filled up from the Scheduled Castes candidates - All the 3 vacancies reserved for Scheduled Castes candidates could not be filled up as the respondent No. 1 found only one person suitable for the post - Petitioners who belong to Scheduled Castes category were not selected on the ground that they failed to secure the required minimum marks in interview - Petitioners filed present petitions submitting that as only three candidates belonging to the Scheduled Castes category stood qualified in the written test, thus, they could have been offered the appointment without asking them to complete the formality of facing the interview - Whether petitioners are entitled to get appointments without completing the formality of a interview? - Held, r. 6 of Rules, 1970 do not provide for any particular procedure/criteria for holding the tests rather it enables the HC to prescribe the criteria – No fixed percentage of marks had been prescribed for interview by the HC - In absence of any statutory requirement of securing minimum marks in interview, the HC ought to have followed the same principle - As petitioner ‘X’ had secured 46.25% marks in aggregate and as he was required only to have 45% marks for appointment, writ petition filed by him stands allowed - As ‘Y’ failed to secure the required marks in aggregate, writ petition filed by him stands dismissed - Order accordingly.
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Shantiniketan Hindi Primary School vs Pal Hariram Ramavtar And Others
[SUPREME COURT OF INDIA, 01 Feb 2010]
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Industrial Development Corporation Orissa Limited vs Visa Steel Limited and Others
[SUPREME COURT OF INDIA, 01 Feb 2010]
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State of Madhya Pradesh vs Balram Mihani and Others
[SUPREME COURT OF INDIA, 01 Feb 2010]
Criminal - Code of Criminal Procedure, 1973, ss. 105-D to 105J and Chapter VII-A - Attachment and forfeiture of properties - Petitioner moved applications for initiating proceedings against respondents under chapter VII-A of CrPC for attachment and forfeiture of the properties of the respondents alleging that the said properties were acquired from the criminal activities - Trial court allowed these applications - On appeal, DB quashed the proceedings and held that provisions of Chapter VII-A were not applicable to such local offences complained of - Hence, present appeal - Whether Chapter VII-A of CrPC applicable to local offences? - Held, no - Chapter VII-A is specific chapter relating to the specified offences therein and has nothing to do with the local offences or the properties earned out of those - Forfeiture of such property can be done only in cases where the same has been accumulated in crimes having international ramifications - Such a seizure can be done provided there is a treaty between India and the contracting country - Appeals dismissed.
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Nikhil Parasar vs State Government NCT of Delhi
[DELHI HIGH COURT, 01 Feb 2010]
Criminal - Women & Children - Code of Criminal Procedure, 1973, s. 438 - Bail application - Sexual intercourse on pretext of marriage - Prosecutrix filed a complaint - Petitioner filed application for bail - Whether petitioner’s bail application could be allowed? - Held, from the very beginning, petitioner did not really intend to marry the prosecutrix and that is why he did not wait even till his formal engagement and persuaded her to come to Mumbai to live with him - Plea that petitioner declined to marry the prosecutrix only because she was from a different caste to that of the petitioner is only a false defence set up in order to wriggle out of criminal case, registered against him - Bail application dismissed.
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(1) Mukesh Chand; (2) Horam Singh; (3) Mahender Singh vs State Government of N.C.T. of Delhi
[DELHI HIGH COURT, 01 Feb 2010]
Criminal - Indian Penal Code, 1860, ss. 328 and 379 r/w. s. 34 - Theft – Complainants belongings were stolen after feeding him poisonous biscuits - Trail court convicted appellants u/s. 328 and 379 r/w. s. 34 of IPC - Appellants contended that case of prosecution is full of contradictions as there is no eye-witness to the occurrence of the alleged incident, though incident is stated to have taken place in a running train - Whether appellants rightly convicted u/s.328 and 379 r/w. s. 34 of IPC? - Held, no - There is nothing on record to show that complainant was travelling in the train on the date of alleged incident - Identity of person who has removed the complainant to the hospital and got him admitted, has not been established at all - Moreover, none of the appellants were apprehended from the scene of crime - Case of prosecution is full of contradictions and it has miserably failed to prove its case against any of the appellants - Impugned judgment of trial court’s set aside and appellants stand acquitted - Appeal allowed.
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Surendra Sribali Sahu vs State of Maharashtra
[BOMBAY HIGH COURT, 01 Feb 2010]
Criminal - Indian Penal Code, 1860, ss. 34 and 302 - Code of criminal Procedure, 1973, s. 313 - Murder - Conviction - Challenged - Charge was framed against the appellant and accused No.2 that they committed murder of deceased in furtherance of their common intention and committed offence punishable u/s. 302 r/w s. 34, IPC - Trial Court found that the prosecution failed to prove that the act was committed in furtherance of common intention by both the accused - Accused No.2 was acquitted and appellant was convicted for the alleged act - Hence, present appeal - (A) Non-framing of independent charge u/s. 302, IPC - Effect thereof - Held, it cannot be said that by not framing a separate charge u/s. 302 IPC any prejudice was caused to the appellant in any manner - Relied on SC judgment in the case of Willie (William) Slaney vs. State of Madhya Pradesh 1955 INDLAW SC 80 - (B) Circumstantial evidence - Held, where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person - Complete chain is required to be established by clear evidence on record - In the present case, chain in connection with the circumstantial evidence was not complete, except the fact that the deceased was seen lastly in the company of the appellant - (C) Acquittal of accused No. 2 - Effect thereof - Held, even if common intention is not to be believed and if there is evidence that the particular accused was instrumental in giving fatal blow which resulted in the death of a person, such person can be convicted for his individual role - In the present case since there was no clear evidence to suggest that the death was caused because of the act of the appellant, the benefit of doubt has to be given to the appellant - Order of conviction and sentence recorded against the appellant set aside - Appeal allowed.
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