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Indian Laws - Case Laws
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2012 (2) TMI 662 - DELHI HIGH COURT
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... ... ..... his Court has been followed by the High Court of Madras in Kotak Mahindra Bank Ltd. v. Sivakama Sundari S. Narayana S.B. Murthy (2011) 6 CTC 11. That Court observed as under "25. In the Absence of any provision in the 1996 Act, requiring a Court to pass a decree in terms of the award (except in terms of Section 34) and in the absence of any provision in the 1996 Act making the Arbitral Tribunal a Court which passed the decree and in the absence of any provision anywhere making the court within whose jurisdiction an award was passed as the court which passed the decree, it is not open for any executing Court (i) either to demand transmission from any other Court; (ii) or to order transmission to any other Court." 5. In the light of the above decisions, the prayer made in the present petition is declined. It will be open to the DH to approach the competent Court in Bangalore, Karnataka for execution of the Award in accordance with law. 6. The petition is disposed of.
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2012 (2) TMI 657 - MADRAS HIGH COURT
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... ... ..... ether the evidence to be adduced in respect of the part played by them shall be sufficient to warrant a conviction or not. On the other hand, it has been made clear in the complaint that all of them participated in the marriage and all of them played a vital role in the marriage knowing fully well that the marriage of the first accused with the respondent/complainant was subsisting. Statements have also been recorded to the effect that they had also stated since the respondent/complainant could not give birth to a male child, they had to go for the second marriage of the first accused. If all these aspects are taken into consideration, we have to come to the necessary conclusion that the said contention of the petitioners as a ground for quashing the complaint also deserves rejection. 16. For all the reasons stated above, this Court decides the petitions against the petitioners and dismisses both the petitions. Accordingly, both the criminal original petitions are dismissed.
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2012 (2) TMI 656 - SUPREME COURT
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... ... ..... 8. Central Government also should take steps to bring into force the Minor Minerals Conservation and Development Rules 2010 at the earliest. State Governments and UTs also should take immediate steps to frame necessary rules under Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957 taking into consideration the recommendations of MoEF in its Report of March 2010 and model guidelines framed by the Ministry of Mines, Govt. of India. Communicate the copy of this order to the MoEF, Secretary, Ministry of Mines, New Delhi, Ministry of Water Resources, Central Government Water Authority, the Chief Secretaries of the respective States and Union Territories, who would circulate this order to the concerned Departments. 19. We, in the meanwhile, order that leases of minor mineral including their renewal for an area of less than five hectares be granted by the States/Union Territories only after getting environmental clearance from the MoEF. Ordered accordingly.
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2012 (2) TMI 655 - DELHI HIGH COURT
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... ... ..... s the Arbitrator could not ignore such express bar in the contract. 10. Appling the aforesaid principle to the facts of this case, the clear answer would be that the Arbitrator had no power to award pendente lite interest. As pointed out above, Clause 16(2) of GCC stipulates in no uncertain terms that the interest would not be payable. The said Clause reads as under - “16(1) xxx xxx xxx (2) Interest on amounts - No interest will be payable on the earnest money or the security deposit or amounts payable to the Contractor under the contract, but Government Securities deposited in term of sub-clause (1) of this clause will be repayable with interest accrued thereon.” 11. We, thus, are of the view that the award of pendente lite interest by the Arbitrator was not legally justified. That order of the learned Single Judge making the award a rule of the Court on this aspect is set aside. 12. The appeal is disposed of accordingly. 13. There shall be no order as to costs.
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2012 (2) TMI 643 - SUPREME COURT
Principle of `failure of justice' - Effect on not committing an accused in terms of Section 193 of the Code of Criminal Procedure (the Code) in cases where charge-sheet is filed u/s 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the Act) and cognizance is directly taken by the Special Judge under the Act - In the instant case neither the Trial Court nor the High Court appears to have kept in view the requirements of sub-section (3) relating to question regarding "failure of justice". Merely because there is any omission, error or irregularity in the matter of according sanction that does not affect the validity of the proceeding unless the Court records the satisfaction that such error, omission or irregularity has resulted in failure of justice. The same also applies to the appellate or revisional Court. The requirement of sub- section (4) about raising the issue, at the earliest stage has not been also considered. Unfortunately the High Court by a practically non-reasoned order, confirmed the order passed by the learned trial judge. The orders are, therefore, indefensible. We set aside the said orders. It would be appropriate to require the trial Court to record findings in terms of Clause (b) of Sub-section (3) and Sub-section (4) of Section 19.
"Per incuriam" are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong."
`Incuria' literally means `carelessness'. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis.
The `quotable in law' is avoided and ignored if it is rendered, `in ignoratium of a statute or other binding authority'
HELD THAT:- No objection was raised at the time of framing of charge or any other relevant time but only propounded after conviction. Under these circumstances, the right of the collective as well as the right of the victim springs to the forefront and then it becomes obligatory on the part of the accused to satisfy the court that there has been failure of justice or prejudice has been caused to him. we come to the irresistible conclusion that the objection relating to non-compliance of Section 193 of the Code, which eventually has resulted in directly entertaining and taking cognizance by the Special Judge under the (Prevention of Atrocities) Act, 1989, does not vitiate the trial and on the said ground alone, the conviction cannot be set aside or there cannot be a direction of retrial and, therefore, the decision rendered in Bhooraji [2001 (8) TMI 1385 - SUPREME COURT] lays down the correct law inasmuch as there is no failure of justice or no prejudice is caused to the accused. The decisions rendered in Moly and Vidyadharan [2004 (3) TMI 767 - SUPREME COURT] have not noted the decision in Bhooraji, a binding precedent, and hence they are per incuriam and further, the law laid down therein, whereby the conviction is set aside or matter is remanded after setting aside the conviction for fresh trial, does not expound the correct proposition of law and, accordingly, they are hereby, to that extent, overruled.
if the failure of justice is not bestowed its due signification in a case of the present nature, every procedural lapse or interdict would be given a privileged place on the pulpit. It would, with unnecessary interpretative dynamism, have the effect potentiality to cause a dent in the criminal justice delivery system and eventually, justice would become illusory like a mirage. It is to be borne in mind that the Legislature deliberately obliterated certain rights conferred on the accused at the committal stage under the new Code. The intendment of the Legislature in the plainest sense is that every stage is not to be treated as vital and it is to be interpreted to subserve the substantive objects of the criminal trial.
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2012 (2) TMI 631 - DELHI HIGH COURT
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... ... ..... Supreme Court in Administrator, Municipal Committee, Charkhi Dadri (supra) relied upon by the appellants is of no application. Moreover, the Supreme Court in that case held that once acquisition had become final and the title to the land stood divested, the subsequent non-compliance could not undo what already stood done. However, in the present case, we are concerned with different statutory provisions whereunder according to us removal had not attained finality owing to the procedure prescribed therefor having not been followed. The appeal therefore fails and is dismissed save that the direction given in the impugned judgment to the Registrar to restore and renew the mark is modified to a direction to the Registrar to restore/renew the mark after satisfying that the respondent is the registered proprietor/successor of the registered proprietor of the registered trademark which has expired and that in the interregnum same or similar marks have not been registered. No costs.
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2012 (2) TMI 630 - SUPREME COURT
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... ... ..... h (supra) and Mithu (supra) has been universally acknowledged in several jurisdictions across the world and has been accepted as correct articulation of Article 21 guarantee. Therefore, the ratio in Mithu (supra) and Bachan Singh (supra) represents the concept of Jus cogens meaning thereby the peremptory non derogable norm in international law for protection of life and liberty. 102. That is why it has been provided by the 44th Amendment Act of 1978 of the Constitution, that Article 21 cannot be suspended even during proclamation of emergency under Article 359 (vide Article 359(1)(a) of the Constitution. 103. This Court therefore holds that Section 27 (3) of the Arms Act is against the fundamental tenets of our Constitutional law as developed by this Court. 104. This Court declares that Section 27(3) of Arms Act, 1959 is ultra vires the Constitution and is declared void. The appeal is thus dismissed on merits and the High Court judgment acquitting the Respondent is affirmed.
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2012 (2) TMI 624 - BOMBAY HIGH COURT
Application for ad interim relief - arbitration petition u/s 9 - direction to furnish solvent security in the form of a bank guarantee of a nationalised bank - provisions of Order 38, Rule 5 CPC - In Present case, Petitioner and the First Respondent enetered into an agreement, later the First Respondent in turn entered into an agreement with the Second Respondent. The agreement stated that the First Respondent had been granted certain exclusive commercial and media rights by the Petitioner for all international cricket matches organised by the Petitioner in India under a Media Rights Agreement. By the agreement between the First and Second Respondents, the First Respondent granted to the Second Respondent, in consideration for a media rights free, broadcast rights for the territory to the events taking place during the term subject to the conditions set out in the agreement. The broadcast rights granted to the Second Respondent comprised solely of the exclusive right to broadcast the event in the territory by means of television rights with a commentary in English. Clause 6 of the agreement sets out a Media Rights Fee payable to the First Respondent by the Second Respondent, while clause 7 spells out the installments for making payment.
HELD THAT:- We are of the view that the learned Single Judge was justified in calling upon the First Respondent to furnish security in respect of the claim of the Petitioner in the amount of ₹ 305 Crores. Having regard to the provisions of Order 38, Rule 5, it would, however, be appropriate to direct the First Respondent to furnish security. Also, for the ends of justice could be met by a direction to the effect that the First Respondent shall within a period of two weeks from today furnish solvent security in the form of a bank guarantee of a nationalised bank in the amount of ₹ 305 Crores to the satisfaction of the Prothonotary and Senior Master.
Order 38, Rule 5 C.P.C. cannot be read into the said provision as it is nor can power of the Court in passing an order of interim measure under section 9(ii)(b) be made subject to the stringent provision of Order 38, Rule 5. The power of the Court in passing the protection order to secure the amount in dispute in the arbitration before or during arbitral proceedings or at any time of making of the arbitral award but before it is enforced cannot be restricted by importing the provisions set out in Order 38 of C.P.C. but has to be exercised ex debito justitiae and in the interest of justice. The Court while considering the application for interim protection under section 9(ii)(b) is guided by equitable consideration and each case has to be considered in the light of its facts and circumstances.
The Appeals are accordingly disposed of.
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2012 (2) TMI 623 - SUPREME COURT
Revisional jurisdiction under Section 397 Cr.P.C. was available to the respondent No. 2 in challenging the order of the Magistrate directing issuance of summons. The first question is answered against the appellant accordingly.
Additional Sessions Judge and the High Court were not right in holding that for prosecuting the respondent No. 2 for the offences for which the summoning order has been issued, the sanction of the competent authority under Section 197 Cr.P.C. is required. The view of the Additional Sessions Judge and the High Court is bad in law being contrary to the law laid down by this Court in Prakash Singh Badal case (2006 (12) TMI 548 - SUPREME COURT OF INDIA). The second question is answered in the negative and in favour of the appellant.
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2012 (2) TMI 621 - DELHI HIGH COURT
Maintainability of the writ petition on the ground of Territorial Jurisdiction - Employees Provident Fund Appellate Tribunal - According to the appellant, his establishment did not get any response from the market nor could get any business, he relieved all the employees from their services and closed down the establishment. However, unaware of the fact that with the closure of establishment, he was also required to surrender the Provident Fund code, he did not take any step in this direction. he received summons from the Office of the Regional Provident Fund Commissioner (RPFC), Vadodara, Gujarat directing him to appear before him in person. He appeared and informed the RPFC about the closure of the establishment. However, the RPFC, Vadodara passed orders under Section 7Aof the Provident Fund Act directing the appellant to pay the provident fund dues. The appellant felt aggrieved by this order and he preferred appeal before the Appellate Tribunal which is located in Delhi. This appeal was dismissed. Appellate Tribunal order, assailed by the appellant by filing the writ petition in this Court, dismissal thereof for want of territorial jurisdiction permitting the appellant to approach the appropriate forum.
HELD THAT :- In the present case, we find that since the impugned orders are passed by the appellate tribunal in Delhi and this Court has the territorial jurisdiction to deal with the matter and no case of forum non conveniens of this Court (or for that matter forum conveniens of Gujarat High Court) is made out, therefore, this Court is competent to deal with the writ petition filed by the petitioner. Order of the learned Single Judge is set aside and the matter is remitted back for disposal of the writ petition on merits.
Doctrine of forum conveniens - "The court in which an action is most appropriately brought, considering the best interests and convenience of the parties and witnesses." with reference to a situation where original authority is in one State and the seat of the appellate authority is located in another State. the writ would be maintainable in both the Courts and also that it is the petitioner which has right to choose his forum, we are of the view that primacy to the freedom given to the petitioner needs to be respected. Therefore, we clarify that normally in such circumstances, writ would be maintainable at both the places and only in extreme cases where the Court finds that it is totally inconvenient for a Court to entertain the writ petition and the other High Court may be better equipped to deal with such a case then the Therefore, we clarify that normally in such circumstances, writ would be maintainable at both the places and only in extreme cases where the Court finds that it is totally inconvenient for a Court to entertain the writ petition and the other High Court may be better equipped to deal with such a case then the doctrine of forum conveniens has to be applied.
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2012 (2) TMI 611 - KERALA HIGH COURT
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... ... ..... lent on the date of such recommendation. The question as to whether the petitioner has got any vested right on the basis of pendency of the application is a matter which need be considered by the authorities concerned, at the first instance. I am not proposing to enter upon any adjudication on the question of eligibility of the petitioner in this regard, because the authority concerned has not taken any decision on the basis of the available records. I am of the view that a fresh decision disposing the application need be taken by the competent authority. 4. Hence respondents 1 and 2 are hereby directed to consider the application on the basis of reports now received, taking note of the change of law vis-a-vis entitlement claimed by the petitioner. A decision in this regard shall be taken at the earliest possible, at any rate within a period of one month from the date of receipt of a copy of this judgment, after affording an opportunity of personal hearing to the petitioner.
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2012 (2) TMI 605 - DELHI HIGH COURT
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... ... ..... defendant. The Review Application was dismissed on May 15, 2003. 5. Challenge in RFA(OS) No.21/2010 is to the original decree dated May 17, 2000. Challenge in FAO(OS) No.257/2003 is to the order dismissing review sought by the defendant. 6. The two appeals are listed together for hearing and a settlement has been arrived at between the parties, terms whereof are recorded in the statement made in Court today by Sh.Om Prakash Garg, contents whereof have been accepted on behalf of the respondent by its Director Sh.Jagdish Moolchandani whose statement has also been recorded in Court today. 7. In view of the statement made, FAO(OS) No.257/2003 is dismissed as infructuous and RFA(OS) No.21/2010 stands disposed of decreeing the suit filed by the respondent in terms of the compromise effected; terms whereof are to be found in the statement made by Sh.Om Prakash Garg, which statement shall form part of the decree. 8. Parties shall bear their own costs in the suit as also the appeal.
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2012 (2) TMI 585 - CALCUTTA HIGH COURT
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... ... ..... a government recognized laboratory. Learned advocate for the respondents vehemently opposes the prayer for retesting on the ground that since on both counts the samples have failed the tests, no order may be passed. Having heard the learned advocates for the parties and considering the facts and circumstances of the case, the writ petition is disposed of by directing the Authorized Officer, Food Safety and Standard Authority of India, to draw samples of the articles in question within 48 hours from the date of communication of this order and shall send it to Export Inspection Agency at 14/1B Ezra Street, Kolkata for undertaking an analysis of the samples of the articles and such analysis shall be made within a period of fifteen days thereafter. Since earlier the goods underwent two tests, it is made clear that test made pursuant to this order shall be final. No order as to costs. All parties concerned are to act on a signed photo copy of this order on the usual undertakings.
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2012 (2) TMI 568 - SUPREME COURT
Whether the Government has the right to alienate, transfer or distribute natural resources/national assets otherwise than by following a fair and transparent method consistent with the fundamentals of the equality clause enshrined in the Constitution?
Whether the recommendations made by the Telecom Regulatory Authority of India (TRAI) on 28.8.2007 for grant of Unified Access Service Licence (for short `UAS Licence') with 2G spectrum in 800, 900 and 1800 MHz at the price fixed in 2001, which were approved by the Department of Telecommunications (DoT), were contrary to the decision taken by the Council of Ministers on 31.10.2003?
Whether the exercise undertaken by the DoT from September 2007 to March 2008 for grant of UAS Licences to the private respondents in terms of the recommendations made by TRAI is vitiated due to arbitrariness and malafides and is contrary to public interest?
Whether the policy of first-come-first-served followed by the DoT for grant of licences is ultra vires the provisions of Article 14 of the Constitution and whether the said principle was arbitrarily changed by the Minister of Communications and Information Technology (hereinafter referred to as `the Minister of C & IT), without consulting TRAI, with a view to favour some of the applicants?
Whether the licences granted to ineligible applicants and those who failed to fulfil the terms and conditions of the licence are liable to be quashed?
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2012 (2) TMI 503 - DELHI HIGH COURT
Whether the existence of an arbitration agreement between the parties is a bar to the maintainability of the information and the proceedings arising therefrom before the Commission? - whether the petitioner is an 'enterprise' within the meaning of the expression as defined in Section 2(h) of the Act? - Held that:- An enterprise may perform some sovereign functions, while other functions performed by it, and the activities undertaken by it, may not refer to sovereign functions. The exemption under Section 54 could be granted in relation to the activities relatable to sovereign functions of the Government, and not in relation to all the activities of such an enterprise. Pertinently, there is no notification issued under Section 54 either under Clause (c), or under the proviso. This clearly shows that the Central Government does not consider any of the activities of the petitioner as relatable to sovereign functions.
The petitioner has entered into a Concession Agreement under its PPP policy. It is, therefore, clear that respondent No. 2 is performing a commercial activity and rendering services for a charge, which, prior to the entering into the aforesaid agreement with the petitioner, was being performed by the petitioner. The petitioner is also carrying out an activity, viz. running the railways, which also has a commercial angle and is capable of being carried out by entities other than the State, as is the case in various other developed countries. It is, therefore, not an inalienable function of the State. Therefore, the submission of the petitioner that it is not covered by the definition of 'enterprise', has no merit and is rejected.
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2012 (2) TMI 489 - SUPREME COURT
Whether the EVMs were illegally removed?
Whether any election offence of booth capturing and criminal intimidation was committed?
Whether the election was liable to be declared void under Section 100 of the Representation of the People Act, 1951?
Whether the first respondent was entitled to be declared as duly elected?
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2012 (2) TMI 466 - DELHI HIGH COURT
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... ... ..... f this judgment applies to the facts of the present case. The contention of the petitioner that the levy is opposed to the settlement arrived at with the entertainment tax authorities and goes much beyond that and, therefore, should not be upheld, is untenable. There can be no settlement in the matter arising under a fiscal statute, in the absence of any specific provision in the statute. No such provision was pointed out to us. In any case, there can be no estoppel against the statute. In Mathra Parshad and Sons v. State of Punjab 1962 13 STC 180 (SC); AIR 1962 SC 745, it was pointed out by the Supreme Court that if the law required that certain tax is to be collected, that cannot be given up and any assurance that it will not be collected will not bind the Government, whenever it chose to collect the same. We need not dilate further on this aspect. For the aforesaid reasons, we find no merit in this writ petition. The same is dismissed. There shall be no order as to costs.
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2012 (2) TMI 333 - MADRAS HIGH COURT
Restriction on Foreign Law Firm or Foreign Lawyers - Writ Petition filed claiming that Foreign Law Firms and foreign lawyers were practicing the profession of law in India in contravention of the Advocates Act and that they should be restricted from having any legal practice either on the litigation side or in the field of non-litigation and commercial transactions within the territory of India - Held that:- Foreign law firms or foreign lawyers cannot practice the profession of law in India either on the litigation or non-litigation side, unless they fulfill the requirement of the Advocates Act, 1961 and the Bar Council of India Rules. However, there is no bar either in the Act or the Rules for them to visit India for a temporary period on a "fly in and fly out" basis, for the purpose of giving legal advise to their clients in India regarding foreign law or their own system of law and on diverse international legal issues. Moreover, having regard to the aim and object of the International Commercial Arbitration introduced in the Arbitration and Conciliation Act, 1996, foreign lawyers cannot be debarred to come to India and conduct arbitration proceedings in respect of disputes arising out of a contract relating to international commercial arbitration. The B.P.O. Companies providing wide range of customized and integrated services and functions to its customers like word-processing, secretarial support, transcription services, proofreading services, travel desk support services, etc. do not come within the purview of the Advocates Act, 1961 or the Bar Council of India Rules. However, in the event of any complaint made against these B.P.O. Companies violating the provisions of the Act, the Bar Council of India may take appropriate action against such erring companies.
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2012 (2) TMI 140 - SUPREME COURT
2G Spectrum Scam whether a complaint can be filed by a citizen for prosecuting a public servant for an offense under the Prevention of Corruption Act, 1988 High Court dismissed the petition on ground that investigation is in progress hence decision on the application of the appellant either to grant or refuse the sanction cannot be taken - Held that:- There is no provision either in the 1988 Act or the Code of Criminal Procedure, 1973 (CrPC) which bars a citizen from filing a complaint for prosecution of a public servant who is alleged to have committed an offense. Further, while considering the issue regarding grant or refusal of sanction, the only thing which the Competent Authority is required to see is whether the material placed by the complainant or the investigating agency prima facie discloses commission of an offense. If satisfied, then it is required to grant sanction. The Competent Authority cannot undertake a detailed inquiry to decide whether or not the allegations made against the public servant are true. In Vineet Narain's case, time-limit of three months for grant of sanction for prosecution was granted with additional one month, however in present case, due to failure of officers in the PMO and the Ministry of Law and Justice, to apprise respondent No.1 about seriousness of allegations made by the appellant matter lingered for a period of more than one year. In result, order of High Court is set aside, and right granted to appellant to file a complaint for prosecuting respondent No.2. At the same time, it is directed that in future every Competent Authority shall take appropriate action on the representation made by a citizen for sanction of the prosecution of a public servant strictly in accordance with the direction contained in Vineet Narain v. Union of India (1998) SC and the guidelines framed by the CVC - Decided in favor of petitioner
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2012 (2) TMI 76 - SUPREME COURT
2G Spectrum Scam PIL for appointment of a group of independent persons to assist the Court in monitoring the investigation being carried out by the CBI, the Enforcement Directorate and the Income Tax Department in '2G case' Held that:- Though power of superintendence cannot be used by the Central Vigilance Commission for interfering with the manner and method of investigation or consideration of any case by the CBI in a particular manner. However, keeping in view the nature of the case and involvement of large number of influential persons, we feel that it will be appropriate to require the Central Vigilance Commissioner and the Senior Vigilance Commissioner appointed u/s 3(2) of the Central Vigilance Commission Act, 2003 to render assistance to the Court in effectively monitoring the further investigation of the case. This course will be perfectly in tune with the mandate of Section 8(1) of the 2003 Act. Directions for compliance of aforesaid are issued Decided in favor of petitioner.
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