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Indian Laws - Case Laws
Showing 1 to 20 of 675 Records
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2016 (12) TMI 1907
Principles of Legitimate expectation and promissory estoppel - Levy of EDC - Scope and extent of exemptions claimed to have been granted under the Industrial Policy, 2003 - amount paid in lieu of EDC and cess - Refund sought on the premise that the petitioner has been exempted from such levies under the Industrial Policy, 2003 - requirement to obtain NDC from GMADA as a pre-condition for approval of Layout and Zoning Plans - prayer for grant of extension of time towards completion of the project on account of delays having been caused by the respondents.
Whether the phrase ‘cost of infrastructure development’ as contained in para 5 (iv)(q) of the Agreement dated 11.10.2006 is synonymous to the expression ‘External Development Works’ as defined in Section 2(p) of PAPRA, 1995? - If so, whether the petitioner is exempted from payment of External Development Charges/Cost of Infrastructure Development in view of para 5(iv)(j) of the Agreement dated 11.10.2006 whereunder its project has been exempted from PAPRA, 1995? - HELD THAT:- The petitioner’s contention that there is no statutory backup to levy the cost of infrastructure development, for there is no such provision in the PAPRA, 1995, is wholly misconceived. Once the petitioner’s project is exempted from PAPRA, 1995, the affairs of the parties shall be governed by the terms and conditions of the Agreement dated 11.10.2006. Further, since the External Development Works stand included in the infrastructure development works, there can be no escape but to hold that the petitioner is liable to pay such charges as per the binding contract read with Section 5 of the PAPRA, 1995. It is clarified that since the exemption from PAPRA, 1995 granted to the petitioner was subject to its liability to pay proportionate cost towards infrastructure development works, hence, there was no exemption to it in legal parlance from the levy of ‘external development charges’ as defined in Section 2(p) read with Section 5 of PAPRA, 1995.
What is the effect of para-6 of the Agreement dated 11.10.2006 on the petitioner’s claim for exemption from payment of EDC and other charges? - Whether the time prescribed for completion of the project is the essence of contract, and if so, whether it would have any adverse effect on the petitioner’s claims after the expiry of the extended period? - HELD THAT:- It is undeniable that as per para (6) of the Agreement dated 11.10.2006 if the petitioner-company was unable to comply with provisions of para 5(i), 5(ii) and 5(iii) within the stipulated period of three years commencing from 29.03.2006 (which was later on extended upto 28.03.2012, with a further renewal offer under the new policy decision dated 06.02.2015), the concessions enumerated in para 5(iv) were liable to be automatically withdrawn - Since it is viewed that the petitioner is liable to pay the proportionate costs towards infrastructure development works which include the ‘External Development Works’ within the meaning of Section 5 of PAPRA, 1995, it is not necessary to dwell upon the implications of petitioner’s failure to make an investment of ₹ 952 crore within the initially agreed and/or subsequently extended period.
Since the respondents themselves are not keen to adhere to the time schedule, we hold that GMADA has no authority to assume the role of State Government or to invoke Para 6 of the Agreement to say that the petitioner has lost its right to claim concessions due to the ‘expiry’ of time period, within which the project was required to be completed.
Whether the respondents are bound by the principles of ‘legitimate expectation’ and ‘promissory estoppel’ and consequently are debarred from levying EDC on the petitioner? - HELD THAT:- The State Government while granting special package of incentives on 05.05.2006, expressly informed the petitioner of its liability towards proportionate cost of infrastructure development and it was thereafter that both the parties knowing fully well the implications of such clause, entered into the Agreement dated 11.10.2006. The petitioner having agreed with open eyes to pay the proportionate cost of infrastructure development cannot turn around and invoke the principle of ‘promissory estoppel’ against the respondents as what the petitioner has been asked to pay is necessarily a component of the cost towards infrastructure development works only. So long as the respondents have not withdrawn the exemption from PAPRA, 1995 which might result into levy of other statutory charges on the petitioner, it cannot be said that the respondents have acted contrary to their promise. Similarly, the petitioner cannot be heard to say that it ‘legitimately expected’ not to pay the proportionate cost of infrastructure development works even after it agreed to share such liability while entering into agreement. We thus do not find any merit in this contention as well.
Whether the action of the respondents in levying EDC/CLU/licence fee etc. is discriminatory, based upon arbitrary and irrational considerations? - HELD THAT:- The petitioner is liable to pay proportionate cost towards infrastructure development works and all the ‘External Development Works’ as defined in PAPRA, 1995 are by implication included in the infrastructure development works. The inescapable consequence would be that the impugned recovery notices served on the petitioner are fully justified.
The respondents may be right to an extent in contending that the petitioner lacks the financial capability to fulfill the promise for which it entered into the Agreement or that it has consistently failed to honour the commitment towards payment of due charges. At the same time, it has to be kept in view that the petitioner has already invested more than ₹ 150 crores. If all the doors are closed for the petitioner on a hyper-technical plea that the time limit extended under the policy dated 06.02.2015 already stands expired, the drastic consequence would be that the petitioner’s project would suffer hammer blow. It serves no one’s purpose.
The petitioner has also laid challenge to the acquisition of a small part of its land, by way of a miscellaneous application in the second case. Since such acquisition is a subsequent event, no views expressed on its merits and the petitioner’s application is disposed off with liberty to initiate appropriate separate proceedings in that regard, if so advised.
Petition disposed off.
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2016 (12) TMI 1906
Dishonour of Cheque - acquittal of accused - mistakenly typing of the cheque number - discharge of debt/liability - HELD THAT:- As far as the present case is concerned, in the complaint, the Appellant/Complainant, at paragraph 8 and 12 had mentioned the number of the cheque as '361868' dated 22.03.2013, but at paragraph 9 of the complaint, the cheque number was mentioned as '361838'. In fact, in Ex. R1 - Legal Notice dated 17.04.2013 (issued to the Respondent/Accused), the cheque number was mentioned as '361868' but at paragraph 5 of the said notice, the cheque that was deposited on 22.03.2013, described as '361838'. Even though incorrect mentioning of the Cheque number in Ex. R1 - Legal Notice dated 17.04.2013 is a mistake or ancillary or incidental one, since the transaction between the Appellant/Accused viz., supply of chickens, the evidence of P.W.1 indicates that the Respondent/Accused had issued the cheque in favour of the Appellant/Complainant towards security for the outstanding amount. At this stage, this Court aptly points out that if the cheques were issued not for discharge of any debt or liability, but they were issued by way of security, the Applicant could not be held liable under Section 138 of the Negotiable Instruments Act.
An entry in an account is a self serving one as it is an admission by the maker thereof, in his favour. The crucial test would be whether the entries in a particular account are honest or otherwise. An account book is to be established by a person who had written it and if he is alive or by some other person who is competent to speak about its veracity/genuineness. It cannot be gainsaid that before an extract from 'Account Book' is admitted in evidence, it must be legally proved.
In the instant case, even though the Appellant/Complainant, at paragraphs 8 & 12, in the complaint, had mentioned the cheque number as '361868' and mentioned the cheque number incorrectly as '361838' in Ex. P3 - Notice, this Court is of the considered view that there is no mist or cloud or shroud or any manner of simmering doubt in regard to the language employed in Section 138 of the Negotiable Instruments Act. Admittedly, notice will have to be read in entirety. In the present case, there was no correction notice communicated/issued on behalf of the Appellant/Complainant to the Respondent/Accused - the incorrect mentioning of the cheque in Ex. P3 - Notice is not fulfilling the requirement under Section 138(b) of the Negotiable Instruments Act. In as much as Ex. P3 - Notice is not in conformity with Ex. P1 - Cheque, as a logical corollary, the complaint filed by the Appellant/Complainant is per se not maintainable in Law.
This Court comes to a consequent conclusion that the Appellant/Complainant had not established his case beyond all reasonable doubt. Therefore, the resultant view taken by the trial Court in finding the Respondent/Accused not guilty and acquitting him under Section 255(1) Cr.P.C. is free from any flaw. Consequently, the Criminal Appeal fails.
Appeal dismissed.
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2016 (12) TMI 1905
Violation of principles of natural justice - Termination of service - entitlement to service benefits except back wages which were limited to 50 per cent, from the date of termination to the date of superannuation - HELD THAT:- On facts, it is clear that the High Court has gone wrong in holding that the Labour Court did not follow the procedure. It is seen from the award that the management had not sought for an opportunity for leading evidence. And despite granting an opportunity, no evidence was adduced after the Labour Court held that the findings of the inquiry officer were perverse. Therefore, the Labour Court cannot be faulted for answering the Reference in favour of the Appellant.
The Labour Court, on the available materials on record, found that the termination was unjustified on the basis of a perverse finding entered by the inquiry officer. There was no attempt on the part of the management before the Labour Court to establish otherwise - It appears that the High Court itself has granted compensation since the Court felt that the termination was unjustified and since reinstatement was not possible on account of superannuation. In case, the High Court was of the view that termination was justified, it could not have ordered for payment of any compensation.
In order to deny gratuity to an employee, it is not enough that the alleged misconduct of the employee constitutes an offence involving moral turpitude as per the report of the domestic inquiry. There must be termination on account of the alleged misconduct, which constitutes an offence involving moral turpitude.
The judgment of the High Court cannot be sustained - Appeal allowed.
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2016 (12) TMI 1896
Scope of Service Providers - Whether the Ex-Secretary or the Ex-President or other office bearers of any Cooperative Credit Society fall within the category of the service providers? - HELD THAT:- Section 43 of Delhi Cooperative Societies Act, 2003 and Section 36 of Maharashtra Cooperative Societies Act 1960 which are para materia to section 30 of Punjab Cooperative Societies Act are perused - On bare reading of the above, it is clear that a cooperative society on registration is a rendered body corporate, meaning thereby that it acquires an identity distinct from its member shareholders or the office bearers. Therefore, if a consumer has availed of services of the cooperative credit society for consideration, the cooperative credit society alone would be service provider qua that consumer and the office bearers of the said society who by virtue of being elected to the said position to manage the affairs of the society would have no privity of contract with the consumer and could not be termed as service provider.
Thus, ordinarily Ex-Secretary or the Ex-President or office bearers of any Cooperative Credit Society will not fall within the category of service providers in respect of any contract between the consumer and the cooperative society as they have the identity distinct from the duly registered cooperative credit society. However, there can be cases in which certain individuals may indulge in unfair trade practice or defrauding of the gullible depositors under the cloak of cooperative society - it is clear that if the Ex-Secretary or the Ex-President or office bearers of any Cooperative Credit Society have indulged in misfeasance and fraudulent practice to defraud the people in order to get material gains under the garb of corporate veil they shall also be treated as service providers to the depositors / complainants and held personally responsible for the deficiency in service, if any.
Reference disposed off.
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2016 (12) TMI 1895
Cancellation of result of the examination and debarring him from appearing in any University examination till the end of the Second Semester of the Academic Year 2015-16 and penalty imposed - alleged commission of unfair means in the M.B.B.S. Part 2 examination held in January, 2016 - HELD THAT:- The decision of the Supreme Court in Siddharth Ashvinbhai Parekh [2016 (7) TMI 1674 - GUJARAT HIGH COURT] directly and squarely comes into play. As was noticed from the facts of that case, the said petitioner and the present petitioner, both appeared in the same M.B.B.S. examination in the same paper in the same language. The notice regarding unfair means was given to both on the same day. Both were called by communication dated 15th February, 2016 before the Unfair Means Committee to remain present on 24th February, 2016. The case of the petitioners were considered in the same meeting and in the minutes, present petitioner's case was decided under agenda No. 18 whereas petitioner of Siddharth Ashvinbhai Parekh was under agenda No. 17. The impugned order is of even date in both cases. The present petitioner as well as that petitioner faced similar charges about allegedly conducting themselves to disclose their identity in the answer-book. While in the case of the petitioner the nature of acts alleged for identification revilement were as noted above, in case of the petitioner in the other case, the allegation was that the said petitioner had breached the instructions by doing rough work on a different page number than required as per the instructions and that it was deliberately done to disclose the identity and reap the advantage.
There was no gainsaying that the case of the present petitioner and case of Siddharth Ashvinbhai Parekh had similar and parallel facts and both the petitioners were virtually identically situated. In Siddharth Ashvinbhai Parekh, the set of rival contentions by both the sides were on the similar lines as could be seen from the contents recording the submissions in paragraph 5 to paragraph 13 of the said decision. The Division Bench applied the principle of no evidence to hold that the case against the petitioner was one of 'no evidence'.
Pausing at this stage, the statement recorded on the same day of the present petitioner, if considered (Annexure C, Page 19), it was stated by the petitioner that providing a margin on the right hand side and mentioning page number was his way of writing. He explained that he had done that so that he could see the pages of the entire paper in serially within no time in the concluding moments of the examination time. He stated that it was done to ensure that no question is left untouched. It was stated that he had no intention to commit any unfair means and had not misconducted in any way but it was only his way of presentation the answers. He specifically denied the allegation about he having intention of committing misconduct or revealing identity thereby. Learned advocate for the petitioner struggled in vain, to contend that the facts of both the cases were different. In all respects ranging from nature of allegations to the nature of defence and the statement given by the petitioner, the facts were parallel and went hand-in-hand. It could be successfully submitted that therefore the petitioner being similarly situated, was entitled to the benefit of decision in Siddharth Ashvinbhai Parekh.
By comparing the facts on record, the theory that the present case offers different facts could hardly be countenanced. Nor the aspect of special feature of case hold good. As noticed from the comparison of facts of both the case, they were similar wherein both the students were proceeded in same way on similar nature of charge. The principle of 'no evidence' and the attended reasoning supplied by the Division Bench apply to the present case with equal force.
When the Apex Court does not entertain any Special Leave Petition while observing that it was keeping the question of law decided to be kept open, such question would be treated to have been left open for the Supreme Court only. As far as the High Court is concerned, it would be bound by the judgment not interfered with in the Special Leave Petition as per the law of precedence. In the subsequent case with similar facts and identical issue, the decision not interfered with by the Supreme Court would bind and the different view would be prohibited to be taken on the spacious ground that the question of law kept open, which was the liberty reserved by the Supreme Court for itself only. Therefore, in the instant case when Division Bench judgment in Siddharth Ashvinbhai Parekh was left untouched by the Supreme Court but the question of law was kept open, in the subsequent case considered by this Court where the facts were even otherwise found to be similar and the issue identical, this Court is bound by the decision in Siddharth Ashvinbhai Parekh.
The impugned order dated 08th March, 2016 passed by the respondent University is hereby set aside and the respondents are directed to declare the result of the petitioner forthwith - petition allowed.
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2016 (12) TMI 1893
Conspiracy - Unlawful Assembly - training in making and usage of weapons and explosives in order to retaliate against the alleged tortures faced by muslims in India from the other religions, especially from Hindus, the accused formed themselves into an unlawful assembly - HELD THAT:- It is provided under Section 25 (1B) (a) that, whoever acquires or has in possession or carries any firearm or ammunition in contravention of Section 3 shall be punishable with imprisonment for a term which shall not be less than one year, but which may extend to three years and shall also be liable to fine. In the case at hand, evidence adduced by the prosecution would clearly establish that the accused were having possession of th ammunition (Bombs) in contravention of Section 3. Therefore this court is of the opinion that accused 1 to 21 are guilty of offence under Section 25 (1B) (a) of the Arms Act, 1959. Hence we alter the conviction and sentence imposed by the court below under Section 5 (1) (a) read with Section 27 of the Arms Act to one under Section 25 (1B) (a) of the Arms Act.
Whether the conviction and sentence imposed by the court below under Section 4 & 5 of the Explosive Substances Act, 1908, is sustainable or not? - HELD THAT:- The prosecution was successful in proving that the accused 1 to 21 were having possession and control over the material objects which were recovered from the scene. Going by the definition of 'explosive substances' contained in Section 2 (a) of the Act, it includes materials for making any explosive substances and also any material used or intended to be used in causing or aiding in causing any explosion. As per Section 4 (b) of the Act, having possession and control of any explosive substances with the intent to endanger life or to enable any other person by means thereof to endanger life or to cause serious injury to property, is punishable, despite whether any explosion does or does not takes place. Therefore the prosecution has made out a case against accused 1 to 21 making them guilty of offence punishable under Section 4 (b) (i). The prosecution had also succeeded in proving that, accused 1 to 21 were knowingly in possession and control of the explosive substances so as to give rise to a reasonable suspension that such possession and control was not for any lawful object. The accused 1 to 21 had failed to show that they had in possession and control of the explosive substance for any lawful objects - we are inclined to uphold the convictions imposed by the court below under Section 4 & 5 of the Explosive Substances Act, 1908.
Whether the conviction imposed against accused 1 to 21 under Sections 120 B, 143 read with Section 149 of IPC and also the conviction imposed against 1st accused under Sections 153 A and 153 B (1) (c) of IPC are sustainable or not? - HELD THAT:- The prosecution has not established through any convincing evidence the aims and the objectives or the activities of the organizations or regarding the motives and objectives in convening the alleged camp and in imparting training in manufacture and usage of the arms and the explosive substances. Despite the specific allegation that the accused were seen engaged in imparting training in manufacture of Bombs and in usage of arms, no cogent or convincing evidence is forthcoming with respect to any training being conducted at the premises, apart from the possession and control over the incriminating substances. Further, the prosecution has not succeeded in proving through any credible evidence their specific case that, the assembly and the alleged training was with a declared intention to protect members of the particular community from the alleged torture of the other community, especially from hindus. Under such context, this court is of the view that the conviction imposed under Section 18A of UA(P) Act cannot be sustained in any manner.
Whether there was any usage of the Bombs or the Sword for any purposes as contemplated under Section 15 of the UA(P) Act? - whether the demonstration of those materials can be considered as one to strike terror among the people or as one likely to strike terror among the people? - HELD THAT:- In the case at hand, statements given by the accused Nos.1 to 21 under Section 313 Cr.P.C. is to the effect that, at the relevant place and time they were waiting outside at the building at the place of occurrence for having a meeting of a Trust named 'Thanal', for the purpose of collecting funds for completing construction of the building which is owned by the said Trust. It is stated that, the said building was in fact remaining locked from outside at that time and the police authorities have entered the building by breaking open the lock. Even though some of the persons who were present there had left the scene on noticing the act of the police, accused Nos.1 to 18 remained there and the police have called them inside the room and taken them into custody. They have denied of having any connection with respect to the substances alleged to have recovered from the place of occurrence, and also denied the recovery of such material objects from the place.
Whether an adverse inference with respect to guilt of the accused can be drawn, because they have failed in establishing the version put forth by them through the statement made under Section 313 Cr.P.C.? - HELD THAT:- In the case at hand, the prosecution has not conducted any investigation with respect to the source or procurance of the incriminating materials. There is no evidence adduced as to who had purchased those materials or from where it was purchased. The prosecution had also failed in bringing any evidence to prove that the possession and control of the explosive substances or the arms, was intended for the purpose of striking terror or likely to strike terror based on any communal rivalry or violence. Nor they have established that the accused persons were indulging any preparatory activity to commit any terrorist act. Therefore, the trial court has not put any specific question to the accused persons in this respect - In the case at hand, provisions of the law contained in the respective statutes have adequately taken care to meet the situation and to convict the accused under the common law. We are not persuaded to accept that any offence under UA(P) Act has been established by the prosecution to sustain the conviction, in addition to those provisions of law under which conviction is imposed against the accused persons, which were already upheld by this court.
The conviction rendered by the court below with respect to the appellants in Crl.A.147/2016 (Accused Nos. 1 to 21) under Section 120B, 143 read with Sec. 149 of IPC and Sections 4 and 5 of the Explosive Substances Act, 1908, hereby confirmed - Conviction imposed by the court below under section 5 (1)(a) read with Section 27 of the Arms Act will stand altered to Section 25 (1)(B)(a) of the Arms Act, 1959. The conviction and sentence imposed against the accused under Sections 153 A, 153 B(i)(c) of IPC stand set aside. The conviction and sentence under Sections 18 and 18A of the Unlawful Activities (Prevention) Act will also stand set aside.
Application allowed in part.
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2016 (12) TMI 1889
Application seeking to send the same for scientific examination through experts - case of the petitioner is that the signatures and the matter in the promissory note dated 20.2.2010 were filled up on different dates - HELD THAT:- In the absence of the scientific expert, even if the argument of the petitioner was to be considered, on account of the impracticability involved, it would be only a futile exercise. In that view of the matter, the order of the lower Court does not call for any interference. Therefore, this civil revision petition is liable to be dismissed.
This civil revision petition is dismissed.
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2016 (12) TMI 1886
Smuggling - cocaine - it is alleged that the accused persons procured cocaine from one UC (Uchee) and were indulged in sale of the substances - HELD THAT:- So far the qualitative and quantitative report of impunitive substance seized from the possession of the petitioners is not placed on record by the Investigation Officer. As per the standing instructions 1.18 issued by the Central Government under the N.D.P.S. Act, these reports should have been procured within 30 days. As per the remand application filed by the Investigation Officer, this petitioner is no more required for custody for the purpose of further investigation. In the given circumstances, there is no impediment to allow the petition.
The petitioner is granted bail on executing a self-bond for a sum of Rs.2,00,000/- with one surety for the likesum to the satisfaction of the concerned Court, on the conditions imposed - application allowed.
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2016 (12) TMI 1883
Dishonor of Cheque - insufficiency of fund - discharge of existing liability or not - time limitation - part payment of cheque is enough to defeat the entire cause of action or not? - bar under Section 29 of the Criminal Procedure Code - Whether the demand notice was defective as because a part payment to the tune of Rs. 1,00,000/- was accepted and that is the departure from the cause of action itself? - HELD THAT:- This Court is of the considered view that simply because Rs. 1 lakh was received by the complainant after issuance of statutory notice is enough to deviate from the cause of action - this Court is satisfied that simply because of Rs. 1 lakh was paid by the accused/revisionist after issuance of the statutory notice that is not enough to take away the right of the holder of the cheque to enforce the cause of action regarding non-payment of the residue amount.
Whether the complaint is barred by limitation? - HELD THAT:- In the instant case before this Court the payment of Rs. 1 lakh was made on 11.03.2000 and according to this court it is the starting time of the period of limitation. The complaint was filed within three days of that that is on 14.03.2000 and as such the complaint was filed perfectly within time. This court reiterates that the complaint is not hit by the period of limitation as prescribed under Sections 138 and 142 of the Act of 1881 - It may not be out of place to mention that it is the admitted position that the relationship between the parties was that of client and advocate and naturally such relationship was fiduciary one and there was nothing wrong on the part of the complainant when he advanced Rs. 2,85,000/-.
Whether the cheque was issued in discharge of existing liability? - HELD THAT:- Regarding the applicability of Section 8 and Section 13 of the West Bengal Moneylenders Act, this Court is of the view that the said act has not barred money lending but it has only regulated the money lending. Thus, even if one person who has no money lending licence cannot be debarred from granting any accommodation loan to his friend or other person on him he has confidence. The opposite party took the accommodation loan and he now cannot take the shelter of the West Bengal money lenders' act to defraud the person who accommodated him - this issue is answered in favour of the appellant.
Whether the part payment of cheque is enough to defeat the entire cause of action? - HELD THAT:- This court has already answered the issue that part payment cannot defeat the entire cause of action. Thus, this point is answered in favour of the appellant.
Whether the learned Trial Court had authority to impose the fine amount to the tune of Rs. 2,85,000/- in view of the bar under Section 29 of the Criminal Procedure Code? - HELD THAT:- It is true that as per Section 29 of the Code of Criminal Procedure, 1993 no Judicial Magistrate of the first class can impose any fine exceeding Rs. 10,000/- but in the instant case before this court the learned Judicial Magistrate imposed fine amount to the tune of Rs. 2,85,000/- and according to this court the learned trial court exceeded its jurisdiction to that extent. The question now is whether the entire finding of the trial court is to be set aside for such careless approach. This superior court has inherent power under Section 482 of the Act of 1973 to cure any irregularity to prevent abuse of process of any court or to secure the ends of justice - It is true that as an advocate who has great esteem in the society that the said accused/opposite party would not have troubled his client who accommodated him during his hard days for as many as 17 long years (from 30.12.1999 till this date) and this court prefers to reduce the substantive sentence to make it simple imprisonment for ten days but at the same time the fine amount is being converted to compensation under Section 357 (3) of the Code of 1973 and the amount is enhanced from Rs. 2,85,000/- to 3,70,000/- in default of such payment the accused/opposite party will suffer simple imprisonment for further one year.
The substantive sentence is reduced from 4 months Simple Imprisonment to 10 days. The fine is converted as compensation but the amount is increased to Rs. 3,70,000/- being double of the amount of Rs. 1,85,000/-. If this amount is not paid then this opposite party accused will have to suffer further Simple Imprisonment for one year more - Such payment of Rs. 3,70,000/- (three lakhs seventy thousand) is to be deposited by the opposite party before the learned trial court by way of demand draft in the name of the complainant appellant within one month from this day. The opposite party/accused must surrender before the learned trial court to serve out the sentence within one month from this day. Failure to comply with this order will entitle the learned trial court to issue warrant of arrest against this accused/opposite party.
This criminal revisional application succeeds in part.
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2016 (12) TMI 1882
Classification as permanent employees - fixation of pay of Petitioners at the minimum of the regular pay-scale attached to the respective posts - whether the Petitioners are also entitled to the increment? - Madhya Pradesh Industrial Employment (Standing Orders) Act, 1961 - HELD THAT:- Merely by putting in six months' satisfactory service, an employee can be treated as 'permanent employee'. Rights which would flow to different categories of employees including 'permanent employee' are not stipulated in these Rules or even in the parent Act. It can be gathered from Rule 11 of the said Rules, which relates to termination of employment, that in case of a 'permanent employee' one month's notice or wages for one month in lieu of notice is required when the employment of a 'permanent employee' is to be terminated. On the other hand, no such notice or wages in lieu thereof is needed to be given to any other category of employees. Additional obligation casts on the employer is to record reasons for termination of service in writing and communicate the same to the employee.
The issue came up again in the case of M.P. State Agro Industries Development Corporation Ltd. and Anr. v. S.C. Pandey [2006 (2) TMI 721 - SUPREME COURT] wherein this Court held that only because a temporary employee has completed 240 days of work, he would not be entitled to be regularized in service. The Court also reiterated that the Standing Orders categorize the nature of employment and do not classify individual employees in different post according to the hierarchy created in the Department and thus proviso to Rule 2 does not apply to promotions or regularization in higher grade.
Though a 'permanent employee' has right to receive pay in the graded pay-scale, at the same time, he would be getting only minimum of the said pay-scale with no increments. It is only the regularisation in service which would entail grant of increments etc. in the pay-scale.
Contempt petition dismissed.
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2016 (12) TMI 1880
Interpretation of Section 9A of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 - whether the stipulation of six months for production of Validity Certificate is only directory? - HELD THAT:- In Central Board of Dawoodi Bohra Community and anr. v. State of Maharashtra and anr. [2004 (12) TMI 350 - SUPREME COURT], the Supreme Court and the Full Bench of this Court have traced the power of the Chief Justice to make reference to the Full Bench to the very position of the Chief Justice being 'Master of the Roster' as also to Clause 36 of the Letters Patent. The Full Bench also makes reference to Rule 7 of Chapter -I of the Bombay High Court Appellate Side Rules, 1960. No provision was pointed out in support of the submission that the power of the Chief Justice to make a reference to the Full Bench can be exercised only when a conflict is noticed between the decisions of two or more coordinate Benches. Rather, the provision in Rule 7 Chapter - I, suggests the absence of any such fetter.
A brief reference to the legislative history will assist in determination of the scope and import of Section 9A. This section has its genesis in the constitution (74th Amendment) which introduced Part - IX A in the Constitution comprising Article 243-P to 243-ZG. Particular reference is necessary to Article 243-T which mandates that seats shall be reserved for scheduled caste and scheduled tribes at election to local bodies. Clause 6 of Article 243-T provides that nothing in Part-IXA shall prevent the legislature of a State from making any provision for reservation of seats in any Municipality or offices of chairpersons in the Municipalities in favour of backward class of citizens.
It is clear that the first proviso enables such person to contest the election. The second proviso provides for consequences where the beneficiary of exception or the concession fails to comply with the conditions subject to which the exception or the concession was availed. It provides that where such person fails to produce Validity Certificate within period of six months, as statutorily provided and as undertaken by him from the date of his election, then, the election of such person shall be deemed to have been terminated retrospectively and he shall be disqualified from being a Councillor.
In the present case also the legislature in enacting Section 9A has provided for a statutory fiction, which is evident from the use of expression "his election shall be deemed to have been terminated retrospectively and he shall be disqualified being a Councilor". The statutory fiction must be allowed to have its full play. No other provision or reason has been pointed out to take the view that consequences prescribed under second proviso to Section 9A are not automatic or would require any further adjudication once it is established that the person elected has failed to produce the Validity Certificate within a stipulated period of six months from the date of his election - the validation of caste claim of the elected Councillor by the Scrutiny Committee beyond the prescribed period would have no effect upon the statutory consequences prescribed under the second proviso to Section 9A i.e. deemed retrospective termination of the election of such Councillor and his disqualification for being a Councillor. The subsequent validation or issue of the Validity Certificate will therefore be irrelevant for the purpose of restoration of the Councillor's election but, such validation will obviously entitle him to contest the election to be held on account of termination of his election and the consequent vacancy caused thereby.
The time limit of six months prescribed in the two provisos to Section 9A of the said Act, within which an elected person is required to produce the Validity Certificate from the Scrutiny Committee is mandatory - in terms of second proviso to Section 9A if a person fails to produce Validity Certificate within a period of six months from the date on which he is elected, his election shall be deemed to have been terminated retrospectively and he shall be disqualified for being a Councillor - Such retrospective termination of his election and disqualification for being a Councillor would be automatic and validation of his caste claim after the stipulated period would not result in restoration of his election.
The questions raised, stand answered accordingly.
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2016 (12) TMI 1872
Dishonor of cheque - Legally enforceable debt or not - offence under Section 138 of the Negotiable Instruments Act proved beyond reasonable doubt, or not - acquittal of accused under Section 255(1) Cr.P.C. - HELD THAT:- A perusal of Section 190 Cr.P.C. indicates that it permits anyone to approach the Learned Magistrate to file a complaint. In fact, it does not prescribe has any qualification for an individual eligible to prefer a complaint. No wonder, any one can set the Criminal Law in Motion by filing a complaint of facts constituting an offence before the Magistrate concerned, who is empowered to take cognizance. One cannot brush aside an important fact that an explicit assertion as to the knowledge of 'Power of Attorney Holder' about the transaction in issue must be stated in the complaint, as opined by this Court. If a 'Power of Attorney Holder' who is not possessing any knowledge as to the transaction in question, then, he cannot be examined as a witness in a given case.
A 'Power of Attorney Holder' can adduce evidence before the Court concerned and also to prove the averments of the complaint, he can verify on oath, but the rider is that a 'Power of Attorney Holder' should have witnessed the transaction as an Agent of the Payee/Holder in Due Course should possess the requisite knowledge about the transaction in question - the strict liability under Section 138 of the Negotiable Instruments Act can be enforced only when cheque was issued in discharge of any legally enforceable debt or other liability partly or wholly. However, the onus to establish that cheque was not issued against a legally enforceable debt was on the Respondent/Accused.
There is no two opinion of an important fact that a cheque must be issued in respect of either post or existing debt or other liability. One of the essential ingredients of an offence under Section 138 of the Negotiable Instruments Act is that the cheque was drawn for discharge in whole or part of liability. If this aspect is not covered in the complaint petition, then, it will be a fatal one. Furthermore, an offence as defined in Section 2(n) of the Criminal Procedure Code includes not only the doing of possible act, but by omitting to do something as well - Under the Negotiable Instruments Act, the arising of cause of action is not mere presentation of cheque nor mere dishonour of cheque alone, real cause of action is non payment of cheque sum or non compliance of demand through notice by the 'Drawer' within the statutory period.
The strict liability under Section 138 of the Negotiable Instruments Act, 1881 could be enforced only when cheque was issued in discharge of any legally enforceable debt or other liability, partly or wholly the burden to prove the cheque was not issued against the legally enforceable debt, of course is on the Respondent/Accused. Moreover, the term 'Payee' means the party to whom a bill of exchange, cheque or note is payable - this Court is of the considered view that in the instant case, based on the materials available on record, it is not possible for this Court o pronounce a Judgment and therefore opines that 'Remand of the Matter' is just, fair and necessary, otherwise there would be a failure of Justice. Also that, this Court is of the earnest opinion that the evidence of the Complainant is necessary to prosecute the complaint (filed by P.W.1) in order to render a correct Judgment in the case.
The Criminal Appeal is allowed.
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2016 (12) TMI 1864
Maintainability of suit - benami property - ownership of the suit property in question - Possession of property - parties are related to each other - restraint on permanent injunction from interfering with the suit property.
Ownership of the suit property in question - HELD THAT:- There is no dispute that, in the revenue records property stood in the name of Vassudev Govekar and not Jagannath Govekar. The first appellate court rightly held that the plea with regard to the real owner of the property being Jagannath Govekar could not be gone into as it was barred by the provisions of Section 4(2) of the Benami Act, Though we do not find any merit in the arguments of the Appellants that the Benami Act is not applicable, in any case there is hardly any material produced by the Defendants to support that real owner was Jagannath Govekar. This claim is made only on the ground that it is Jagannath Govekar who had got the suit property acquired in the name of his son Vassudev Govekar. That by itself would not make Jagannath Govekar as the owner of the suit property.
Possession of goods - whether the suit was not maintainable in the absence of any relief qua possession? - HELD THAT:- The case made out by the Plaintiffs is that when Plaintiff Nos. 1, 3 and 5 visited the suit property on December 30, 2006 at about 5:00 p.m., they found that the 'suit house' had been demolished by the Defendants on which they were carrying a new construction. In the light of these pleadings, the Plaintiffs sought the relief of mandatory injunction seeking demolition of the construction carried out by the Defendants on the suit property bearing Survey No. 251/2 as it was illegally put up by the Defendants on Plaintiffs' land. The matter is to be examined in this hue and, therefore, the argument that relief for possession should also have been sought is clearly untenable - there are no merit in these appeals, which are accordingly dismissed with costs.
Appeal dismissed.
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2016 (12) TMI 1863
Principles of natural justice - case of petitioner is that the petitioner’s prayer for grant of eligibility certificate under Industrial Policy of Assam, 2008 has still not been considered - HELD THAT:- Without expressing any opinion on the merit of the case of the petitioner, the writ petition is disposed of by directing the Principal Secretary to the Government of Assam, Industries & Commerce Department, Dispur to dispose of the representation of the petitioner dated 03.12.2013 (Annexure-IX of the writ petition) in accordance with law by a speaking order within a period of 2(two) months from the date of receipt of a certified copy of this order.
Petition disposed off.
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2016 (12) TMI 1857
Registration of FIR - EDC+IDC rates - violation of Rules and specifically Clause 7 that they have given advertisement before the sanctioning of the plan - Sections 420 and 406 IPC - HELD THAT:- The dispute between the parties is squarely covered under the Haryana Development and Regulation of Urabn Areas Act, 1975. As there is specific Act dealing with the offences committed under the Act, therefore, offences under Sections 420 or 406 IPC are not made out in this case. Furthermore, there is nothing on the record to show that the intention of the accused was to cheat the complainant. Even, it is not the case of the complainant that money was taken but no work was done. As argued, flats were not constructed within time and possession was not handed over within time, for which, as per the above-said Act, the complainant is entitled to other remedies but in no way, offence under Section 420 or 406 IPC is made out.
The copy of the agreement has been placed on the record. In the agreement, it is written that IDC shall mean Infrastructure Development Charges as recoverable under the Provisions of the Act and shall include interest thereon/carrying cost of the Company, at the rate charged by the DTCP or 18% per annum, whichever is higher.
The registration of the FIR in the present case is nothing but abuse of process of law and amounts to miscarriage of justice - petition allowed.
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2016 (12) TMI 1855
Maintainability of petition - application dismissed on the ground that the Appellants had applied before the stage of issuance of process so to be issued by the Metropolitan Magistrate Under Section 156(3) of the Code of Criminal Procedure - HELD THAT:- In the present case a fact finding investigation was directed by the impugned order. Consequently, FIR was registered against Appellants No. 2 to 4 and against RM (Vinod Koper). The accused under Indian Criminal Legal System, unless proved guilty shall always be given a reasonable space and liberty to defend himself in accordance with the law. Further, it is always expected from a person accused of an offence pleading not guilty that he shall co-operate and participate in criminal proceedings or proceedings of that nature before a court of law, or other Tribunal before whom he may be accused of an 'offence' as defined in Section 3(38) of the General Clauses Act, i.e., an act punishable under the Penal Code or any special or local law. At the same time, courts, taking cognizance of the offence or conducting a trial while issuing any order, are expected to apply their mind and the order must be a well reasoned one.
The Appellants approached the High Court even before the stage of issuance of process. In particular, the Appellants challenged the order dated 04.01.2011 passed by the learned Magistrate Under Section 156(3) of Code of Criminal Procedure. The learned Counsel appearing on behalf of the Appellants after summarizing their arguments in the matter have emphasized also in the context of the fundamental rights of the Appellants under the Constitution, that the order impugned has caused grave inequities to the Appellants. In the circumstances, it was submitted that the order is illegal and is an abuse of the process of law. However, it appears to us that this order Under Section 156(3) of Code of Criminal Procedure requiring investigation by the police, cannot be said to have caused an injury of irreparable nature which, at this stage, requires quashing of the investigation.
There are no flaws in the impugned order or any illegality has been committed by the High Court in dismissing the petitions filed by the Appellants before the High Court - appeal dismissed.
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2016 (12) TMI 1853
Validity of acquisition proceedings - declaration also sought that the acquisition has lapsed by virtue of the provisions contained in Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, as compensation amount was not deposited nor physical possession of the land was taken - HELD THAT:- The land in question is a small piece of 7 guntas of land situated at Bommanahalli village in Bengaluru South Taluk. Therefore, question of BDA now proceeding with the acquisition by passing an award taking over possession and making any layout to distribute the sites at this stage, does not arise. After a lapse of 30 years, BDA cannot proceed with the acquisition by passing an award as it would result in arbitrary exercise of power by the BDA, in as much as, the market value to be determined and compensation payable would be reckoned as it existed on the date of publication of the preliminary notification during the year 1984. Payment of compensation on that basis to the land owners would be illusory.
The acquisition having not been completed, no award having been passed nor possession of the land having been taken for the last three decades, the entire acquisition proceedings stand lapsed as having been abandoned by the BDA and the State Government - the principle that transferee of land after the publication of preliminary notification cannot maintain a writ petition challenging the acquisition, cannot be made applicable to a case where the acquisition itself has been abandoned and has stood lapsed due to efflux of time on account of the omission and inaction on the part of the acquiring authority, particularly because, it is because of the lapse of time and the abandonment of acquisition, right accrues to the original owner to deal with his property including by way of sale and the purchaser will acquire right to protect his interest.
It is hereby declared that the acquisition proceedings in respect of land bearing Sy. No. 44/7 measuring 7 guntas of Bommanahalli village, Bengaluru North Taluk, have stood lapsed and have been abandoned - Petition allowed.
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2016 (12) TMI 1848
Murder - Respondent No. 1 fired upon his brother-in-law Vishnu from his revolver and thereafter Sombir also fired upon Vishnu - Sections 148, 302 and 307 of the Indian Penal Code read with Section 149 Indian Penal Code and Section 25 of the Arms Act - HELD THAT:- The Medical Professionals namely Dr. Munish Prabhakar and Dr. K.S. Sachdev extended medical asylum to the Respondent without there being any reason or medical condition justifying prolonged admission of the Respondent as an indoor patient as a cover to defeat the Orders passed by this Court and the Trial Court, as stated above and thereby aided and assisted the Respondent in violating the Order of this Court. By such conduct these Medical Professionals have obstructed administration of justice.
The Respondent guilty of having violated the Order dated 24.10.2013 passed by this Court and for having obstructed administration of justice. We also hold Dr. Munish Prabhakar and Dr. K.S. Sachdev guilty for having helped the Respondent in his attempts and thereby obstructing administration of justice. Having held so, we could straightaway have imposed appropriate punishment under the Act. However, we deem it appropriate to grant one more opportunity to these contemnors. The Respondent has not filed any affidavit nor tendered an apology. At the same time for Dr. K.S. Sachdev, Managing Director of the company that owns the hospital is said to be 76 years of age. Considering the fact that these are medical professionals with sufficient standing, the ends of justice would be met if one more opportunity is granted to them to present their view on the issue of punishment. In the circumstances, we direct presence of these three contemnors on January 2, 2017.
Role of the police officials - HELD THAT:- The conduct exhibited by the concerned police officials in not ensuring compliance of the Orders passed by the Trial Court calls for strict administrative action. The actions in that behalf have already been initiated and for the present we rest content by observing that the disciplinary proceedings shall be taken to logical end and the guilty shall be brought to book. We request the Director General of Police of Haryana and the Home Secretary to look into the matter and ensure that the departmental proceedings are taken to logical end at the earliest. The status report/action taken report in that behalf shall be filed in this Court within three months from the date of this judgment.
Application disposed off.
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2016 (12) TMI 1832
Decree of specific performance of an agreement of sale of immovable property - HELD THAT:- This Court in this matter is exercising power as an Executing Court and orders as sought cannot be granted - The counsel for the decree holder then states that the decree holder be refunded the amounts paid by the decree holder but states that the said refund be as per the value of the built up area agreed to be sold - That is again not part of the decree.
List on 22nd August, 2017.
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2016 (12) TMI 1826
Infringement of patent vested in the respondents - jurisdiction of the English Court - Executability of order/decree of English Court - Explanation 2 of Section 44A (3) of CPC.
Whether the order passed by the Foreign Court falls within the Exceptions to Section 13 of the CPC? - HELD THAT:- The order passed by the English Court is an order on merits. The appellant who has submitted itself to the jurisdiction of the Court and on its own requested the Court to assess the costs summarily. While passing a reasoned order by dismissing the application filed by the appellant, English Court granted the costs against the appellant. Had it been the case where appellant’s application was allowed and costs were awarded to it, it would have as well filed a petition for the execution of the order - It cannot be permitted to blow hot and cold at the same time. In our opinion, it is a pure abuse of process of law and the Courts should be very cautious in entertaining such petitions.
The principles of comity of nation demand us to respect the order of English Court. Even in regard to an interlocutory order, Indian Courts have to give due weight to such order unless it falls under any of the exceptions under Section 13 of the CPC. Hence we feel that the order in the present case passed by the English Court does not fall under any of the exceptions to Section 13 of the CPC and it is a conclusive one. The contention of the appellant that the order is the one not on merits deserves no consideration and therefore liable to be rejected.
Whether the order passed by the Foreign Court amounts to a “decree” and the same is executable? - HELD THAT:- As per the plain reading of the definition ‘Judgment’ means the statement given by the Judge on the grounds of decree or order and order is a formal expression of a Court. Thus “decree” includes judgment and “judgment” includes “order”. On conjoint reading of ‘decree’, ‘judgment’ and ‘order’ from any angle, the order passed by the English Court falls within the definition of ‘Order’ and therefore, it is a judgment and thus becomes a “decree” as per Explanation to Section 44A(3) of CPC. In this case, the Court at England, after following the principles of natural justice, by recording reasons and very importantly basing on the application of the appellant itself, has conclusively decided the issue with regard to jurisdiction and passed the order coupled with costs - the order passed by the Foreign Court is conclusive in that respect and on merits. Hence executable as a decree and accordingly the issue is answered.
Whether the decree for costs would fall within the ambit of Explanation 2 of Section 44A (3) of CPC and makes it inexecutable? - Whether interest on costs would fall within the ambit of Explanation 2 of Section 44A of CPC? - HELD THAT:- The appellant has advanced an argument that as per Section 35A of the CPC, no Court should pass any order for the payment of compensatory costs exceeding ₹ 3,000/- or exceeding the limits of its pecuniary jurisdiction of the said Court whichever amount is less. It is thus argued by the appellant that in the present case, since the costs imposed exceed the bar imposed by Section 35A, therefore, the order of the English Court is not executable in the present case - In the present case, no claim has been advanced by the appellant that the claim filed by the respondents is false or vexatious, therefore, the bar in Section 35A is not applicable. Accordingly the issue is answered. In re Issue No. 5 - It is the case of the appellant that the claim for interest on costs is not recognized in the Indian law. It is to be noted that matters of procedure are to be governed by the lex fori, whereas the matters of the substance are governed by lex causae. In this case, the question whether the interest on sum of decree of costs to be executed in India is a matter of substance as the interest on decree is a substantive right of the decree holder and does not concern itself with the procedural law of the forum.
Whether the interest on costs can be executed in India in view of deletion of Section 35(3) of CPC? - HELD THAT:- It is to the reciprocal advantage of the Courts of all nations to enforce foreign rights as far as practicable. To this end, broad recognition of substantive rights should not be defeated by some vague assumed limitations of the Court. When substantive rights are so bound up in a foreign remedy, the refusal to adopt the remedy would substantially deprive parties of their rights. The necessity of maintaining the foreign rights outweighs the practical difficulties involved in applying the foreign remedy. In India, although the interest on costs are not available due to exclusion of Section 35(3), the same does not mean that Indian Courts are powerless to execute the decree for interest on costs. Indian Courts are very much entitled to address the issue for execution of the interest amount.
The Execution Petition filed by the Respondents for execution of the order dated 19th October, 2006 passed by the English Court is maintainable under the relevant provisions - Appeal dismissed.
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