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Indian Laws - Case Laws
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2012 (4) TMI 754 - SUPREME COURT
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... ... ..... nly in case the answer to the first question is in the negative. If no cognizance could be taken on the basis of a complaint filed prematurely, the question would be whether such a complaint could be presented again after the expiry of 15 days and beyond the period of one month under the Clause (b) of Section 142 of the Act. Whether or not the complainant can in a situation like the one in the case at hand invoke the proviso to Clause (b) and whether or not this Court can and ought to invoke its power under Section 142 to permit the complainant to file a complaint even after the expiry of period of one month stipulated under Section 142 are incidental questions that may fall for determination while answering question No. 2. 17. In the light of the above, we deem it fit to refer the two questions formulated in the beginning of the judgment to a three-Judge Bench of this Court. The Registry shall place the file before the Chief Justice for constitution of an appropriate Bench.
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2012 (4) TMI 746 - SUPREME COURT
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Challenging the summon order passed by Magistrate - the present cases pertain to a property dispute regarding distribution of the assets left behind (of T- Series fame), a handwritten note was executed between the appellants and Respondent No. 2 wherein distribution of certain assets and shares in different companies was provided for. Subsequently, a fresh agreement was entered into between the appellants and the Respondent No. 2 which superseded the handwritten note. disputes arose soon after the second agreement, giving rise to multifarious litigations at the behest of Respondent No. 2 which are presently pending adjudication before the High Court. after 4 years, due to non-materialization of the agreement, the Respondent No. 2 got registered the present FIR u/s 420 IPC against all the other signatories to the said agreement wherein only one of the signatory was a party to it. For quashing the said FIR. the Magistrate summoned the appellants herein. Hence, this appeal.
HELD THAT:- There is no such legal requirement imposed on a Magistrate for passing detailed order while issuing summons. The process issued to accused cannot be quashed merely on the ground that the Magistrate had not passed a speaking order. Time and again it has been stated by this Court that the summoning order u/s 204 of the Code requires no explicit reasons to be stated because it is imperative that the Magistrate must have taken notice of the accusations and applied his mind to the allegations made in the police report and the materials filed therewith.
In the light of the above discussion, we conclude that the petition filed before the High Court u/s 482 of the Code was maintainable. However, on merits, the impugned order dated 30.07.2010 passed by the High Court of Delhi is confirmed, consequently, the appeals fail and the same are dismissed.
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2012 (4) TMI 745 - ITAT DELHI
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... ... ..... tal Gain can be assessed as admittedly the depreciation has been claimed thereon. The set aside of the order is also necessary for the reason that learned CIT(A) has combined all these issues and has directed the Assessing Officer to allow set off of brought forward long term loss of ₹ 7,98,083/- which can be adjusted only against Long Term Capital Gain computed in respect of sale of land which is non depreciable asset. The same cannot be adopted against the sale consideration of building which has necessarily to be assessed as Short Term Capital Gain in view of section 50 of the I.T. Act, 1961. Therefore, the entire issue is restored back to the file of the Assessing Officer to correctly compute the gains arising to the assessee out of aforementioned sale of assets which comprised of land and building. 12. In the result, the appeal filed by the Revenue is allowed for statistical purposes in the manner aforementioned. (Order pronounced in the open court on 27/04/2012 )
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2012 (4) TMI 738 - ALLAHABAD HIGH COURT
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... ... ..... ) For redetermination of the seniority of Income Tax Inspectors, the respondent No. 3 shall circulate a tentative seniority list giving opportunity to file objection by affected persons including the petitioner and respondent Nos. 4 to 13. The exercise of redetermination of the seniority shall be completed within a period of four months from the date of filing of a certified copy of this judgment before the respondent No. 3. (5) The respondent Nos. 3 and 4 shall take all consequential actions as per re-determination of seniority in accordance with law. (B) Writ Petition No. 56072/2010 is allowed. The order dated 27.8.2010, of the Tribunal is partly set-aside insofar as it dismisses the O.A. No. 1084/ 2010. In view of the order passed in Writ Petition No. 23672/2006, no direction needs to be issued to the Tribunal to proceed to decide O.A. No. 1084 of 2010 afresh. The O.A. No. 1084/ 2010 having become infructuous is disposed of accordingly. Parties shall bear their own costs.
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2012 (4) TMI 737 - BOMBAY HIGH COURT
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... ... ..... r for decision of the Petition on merits. 11. Thus, in conclusion we are not in agreement with the learned single Judge that the present arbitration Petition needs to be automatically allowed because the award of the arbitrator was passed after the period stipulated in the agreement had come to an end without looking into any other aspect. Having considered the facts narrated above, we find that the conduct of the respondent is such that a clear inference can be drawn that it had waived the time limit stipulated in the agreement and the objection regarding the jurisdiction of the arbitrator. In the result, the appeal is allowed. The order passed by the learned single Judge dated January 13, 2012 in Arbitration Petition No. 430 of 2008 is set aside and the matter is remanded back to the learned single Judge for consideration of the Petition on merits. We make it clear that we have not observed anything on the merits of the case of both the parties in the Arbitration Petition.
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2012 (4) TMI 735 - DELHI HIGH COURT
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... ... ..... case has drawn attention of this court to a number of judgments 'M/s L.T. Overseas Ltd. v. M/s Guruji Trading Co. and Anr. CS (OS) No. 2711/1999; and Relaxo Rubber Limited and Anr. v. Selection Footwear and Anr., 1999 PTC 578. Counsel has also placed reliance on Time Incorporated v. Lokesh Srivastavaand Anr., 2005 (30) PTC 3 (Del) where apart from compensatory damages of ₹ 5 lakhs, punitive damages have also been awarded. Justice R.C. Chopra, has set out in Time Incorporated's case (supra) that punitive damages are founded on the philosophy of corrective justice. 37. For the reasons stated above, the plaintiff has made out a case for grant of decree as prayed in the plaint. Accordingly, the order dated 24.12.2010 is confirmed and the suit is decreed in favour of the plaintiff and against the defendant in terms of para 33 (i), (ii), (iii) & (v) of the plaint with costs and damages to the tune of ₹ 5.00 lakhs. Let a decree sheet be drawn up accordingly.
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2012 (4) TMI 728 - SUPREME COURT
Dishonor of Cheque - Section 138 of the NI Act - fraudulent and dishonest intention - double jeopardy or bar of Section 300(1) of Cr.P.C. - conflicting situations - the respondent no. 2 filed an FIR u/s 406/420 r/w Section 114 of IPC, for committing the offence of criminal breach of trust, cheating and abetment etc. In the criminal case filed u/s 138 of N.I. Act, the trial court convicted the appellant. Aggrieved, appellant preferred Appeal, before the District Judge wherein, he has been acquitted. Against the order of acquittal, respondent no. 2 has preferred Criminal Appeal before the High Court of Gujarat which is still pending consideration. Appellant filed an application u/s 482 Cr.P.C., seeking quashing and Criminal Case, pending before the CJM, on the grounds, inter-alia, that it amounts to abuse of process of law. The appellant stood acquitted in criminal case u/s 138 of N.I. Act. Thus, he cannot be tried again for the same offence. In the facts of the case, doctrine of double jeopardy is attracted. The High Court dismissed the said application. Hence, this appeal.
HELD THAT:- the appellant had been tried earlier for the offences punishable under the provisions of Section 138 N.I. Act and the case is sub judice before the High Court. In the instant case, he is involved u/s 406/420 r/w Section 114 IPC. In the prosecution u/s 138 N.I. Act, the mens rea i.e. fraudulent or dishonest intention at the time of issuance of cheque is not required to be proved. However, in the case under IPC involved herein, the issue of mens rea may be relevant. The offence punishable u/s 420 IPC is a serious one as the sentence of 7 years can be imposed. In the case under N.I. Act, there is a legal presumption that the cheque had been issued for discharging the antecedent liability and that presumption can be rebutted only by the person who draws the cheque. Such a requirement is not there in the offences under IPC. In the case under N.I. Act, if a fine is imposed, it is to be adjusted to meet the legally enforceable liability. There cannot be such a requirement in the offences under IPC. The case under N.I. Act can only be initiated by filing a complaint. However, in a case under the IPC such a condition is not necessary.
the law is well settled that in order to attract the provisions of Article 20(2) of the Constitution i.e. doctrine of autrefois acquit or Section 300 Cr.P.C. or Section 71 IPC or Section 26 of General Clauses Act, ingredients of the offences in the earlier case as well as in the latter case must be the same and not different. The test to ascertain whether the two offences are the same is not identity of the allegations but the identity of the ingredients of the offence. Motive for committing offence cannot be termed as ingredients of offences to determine the issue. The plea of autrefois acquit is not proved unless it is shown that the judgment of acquittal in the previous charge necessarily involves an acquittal of the latter charge.
There may be some overlapping of facts in both the cases but ingredients of offences are entirely different. Thus, the subsequent case is not barred by any of the aforesaid statutory provisions.
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2012 (4) TMI 726 - ANDHRA PRADESH HIGH COURT
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... ... ..... the property. In C.R.P.No. 1444 of 2011, the plea of the petitioner prima facie is well founded. The land in survey No. 266 of Manikonda lands was deleted and was included in the Nacharam Revenue Records correlated to survey Nos. 27/1, 27/2, 27/3 and 27/4. This was not adverted to by the Wakf Tribunal while passing a general order of injunction. As there is no serious dispute about this, we are of the considered opinion that the issue can be finally decided by the Wakf Tribunal in the suit. The petitioner, who entered into the development agreement with the land owners, may have to approach the Wakf Tribunal for necessary clarification in this regard, with reference to Section 52 of the Transfer of Property Act, 1882. In the result, for the above reasons, C.R.P.Nos. 4958, 5028 and 5314 of 2007 and 521, 1384 and 2304 of 2011 shall stand dismissed. C.R.P.No. 1444 of 2011 shall stand disposed of, subject to the observations made hereinabove. There shall be no order as to costs.
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2012 (4) TMI 723 - ANDHRA PRADESH HIGH COURT
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... ... ..... possession notice under Section 13(4), order of the Chief Metropolitan Magistrate/District Magistrate directing delivery of possession under Section 14, the auction/sale notice issued under Rules 8(1) and 8(6) of the Rules and confirmation of sale certificate. The cases on hand do not present any special circumstances or background to deviate from the dicta on exhaustion of alternative remedy. We therefore leave all questions open to be decided by the DRT/ DRAT, as the case may be, as and when the petitioners approached. We also observe that as the petitioners are pursuing their remedies, ex debito justitiae, the DRT/ DRAT may entertain the applications/appeals and decide them on merits, provided the measures initiated under Section 13(4) of the SARFAESI Act are not completed i.e., auction/sale is not completed, as yet. ( 28. ) In the result, for the above reasons, the writ petitions, as also all the miscellaneous applications shall stand dismissed with no order as to costs.
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2012 (4) TMI 720 - SUPREME COURT
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... ... ..... o not attract the provisions of Section 195 Cr.P.C. (See Sachida Nand Singh & Anr. v. State of Bihar & Anr. , (1998) 2 SCC 493). 10. Mr. Ashok Kumar Sharma, learned counsel appearing for the petitioner, has placed a very heavy reliance on the judgment of this Court in Abdul Rehman & Ors. v. K.M. Anees-ul-Haq, JT (2011) 13 SC 271. However, it is evident from the judgment relied upon that the judgment in Sachida Nand Singh (Supra), which is of a larger Bench, has not been brought to the notice of the court. (See also Balasubramaniam v. State & Anr., (2002) 7 SCC 649). The petitioner is guilty of suppressing the material fact. Admittedly, filing of successive petition before the court amounts to abuse of the process of the court. Thus, we are not inclined to examine the issue any further. Considering the composite nature of the offences, we do not see any cogent reason to interfere with the impugned order. The petition lacks merit and is, accordingly, dismissed.
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2012 (4) TMI 719 - SUPREME COURT
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... ... ..... lier interim arrangement was possible on account of the lesser number of parties, but in the present circumstances, the same will not be workable in view of the number of candidates who are likely to contest the elections and are required to be provided with free symbols in each constituency. 29. However, while we are not inclined to make any interim arrangement regarding the allotment of election symbols for the forthcoming General Assembly Elections, we make it clear that this is only a tentative view, which shall not, in any way, affect the final outcome of the pending Writ Petitions and Special Leave Petitions. We also make it clear that this order will not prevent the Election Commission from considering any representation that may be made by the political parties and from accommodating their prayer for a common symbol, to the extent practically possible. 30. Let these eleven Writ Petitions and three Special Leave Petitions be listed for final disposal on 3rd May, 2011.
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2012 (4) TMI 717 - DELHI HIGH COURT
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... ... ..... le of law enunciated in both M.V. Shankar Bhat (supra) and Mayawanti vs Kaushalya Devi (supra) is well taken; it is the applicability to the facts, which is questioned. Undoubtedly, the first case pertained to whether or not parties had arrived at a concluded contract, while the second case laid down the principle that specific performance can be sought of only a valid contract. We have come to a conclusion, though prima facie, that the MOU is a concluded legally enforceable agreement. The test evolved in these cases is fulfilled. In so far as the last judgment is concerned, which is a judgment of this court, in fact supports the case of the respondent. 10. Therefore, for the reasons given above, we are of the view that the appeal deserves to be dismissed with cost. It is ordered accordingly. The appellant shall pay a cost of ₹ 25,000/- to the respondent. 11. Needless to state, the observations made hereinabove will have no impact on the final adjudication in the case.
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2012 (4) TMI 716 - CHHATTISGARH HIGH COURT
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... ... ..... the loan taken by him but he utterly failed to substantiate the same by adducing legal and cogent evidence therefor, in the absence whereof, a registered sale-deed cannot be termed as nominal transaction. On the other hand, plaintiff had successfully proved his title by proving registered sale deed executed by appellant in his favour. When the suit is based on title for possession, once the title is established on the basis of relevant documents and other evidence, unless the defendant proves circumstances, showing the sale deed as fictitious one or colourable device, which cloaked something else, the plaintiff cannot be nonsuited. ( 10. ) For the reasons mentioned hereinabove, I do not find any infirmity in the approach of first Appellate Court in decreeing the plaintiff's suit. The substantial question of law formulated by this Court is answered accordingly in favour of respondent No.l/ plaintiff. In the result, the appeal fails and is dismissed. No order as to costs.
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2012 (4) TMI 706 - SUPREME COURT
Permission to Petitioners' advocate allowed to be present during the interrogation of the petitioners - Held that:- The criminal miscellaneous petition, as well as the writ petition are allowed and it is directed that the petitioners' advocate should be allowed to be present during the interrogation of the petitioners. He/they should be made to sit at a distance beyond hearing range, but within visible distance and the lawyer must be prepared to be present whenever the petitioners are called upon to attend such interrogation.
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2012 (4) TMI 648 - SUPREME COURT
Applicability of the Right of Children to Free and Compulsory Education Act, 2009 to the unaided non-minority schools - Held that:- So far as unaided educational institutions both minority and non-minority are concerned the obligation cast under Section 12(1)(c) is only directory and the said provision is accordingly read down holding that it is open to the private unaided educational institutions, both minority and non-minority, at their volition to admit children who belong to the weaker sections and disadvantaged group in the neighbourhood in their educational institutions as well as in pre-schools.
1. Article 21A casts an obligation on the State to provide free and compulsory education to children of the age of 6 to 14 years and not on unaided non-minority and minority educational institutions.
2. Rights of children to free and compulsory education guaranteed under Article 21A and RTE Act can be enforced against the schools defined under Section 2(n) of the Act, except unaided minority and non-minority schools not receiving any kind of aid or grants to meet their expenses from the appropriate governments or local authorities.
3. Section 12(1)(c) is read down so far as unaided nonminority and minority educational institutions are concerned, holding that it can be given effect to only on the principles of voluntariness, autonomy and consensus and not on compulsion or threat of nonrecognition or non-affiliation.
4. No distinction or difference can be drawn between unaided minority and non-minority schools with regard to appropriation of quota by the State or its reservation policy under Section 12(1)(c) of the Act. Such an appropriation of seats can also not be held to be a regulatory measure in the interest of the minority within the meaning of Article 30(1) or a reasonable restriction within the meaning of Article 19(6) of the Constitution.
5. The Appropriate Government and local authority have to establish neighbourhood schools as provided in Section 6 read with Sections 8 and 9, within the time limit prescribed in the Statute.
6. Duty imposed on parents or guardians under Section 10 is directory in nature and it is open to them to admit their children in the schools of their choice, not invariably in the neighbourhood schools, subject to availability of seats and meeting their own expenses.
7. Sections 4, 10, 14, 15 and 16 are held to be directory in their content and application. The concerned authorities shall exercise such powers in consonance with the directions/guidelines laid down by the Central Government in that behalf.
8. The provisions of Section 21 of the Act, as provided, would not be applicable to the schools covered under sub-Section (iv) of clause (n) of Section 2. They shall also not be applicable to minority institutions, whether aided or unaided.
9. In exercise of the powers conferred upon the appropriate Government under Section 38 of the RTE Act, the Government shall frame rules for carrying out the purposes of this Act and in particular, the matters stated under sub-Section (2) of Section 38 of the RTE Act.
10. The directions, guidelines and rules shall be framed by the Central Government, appropriate Government and/or such other competent authority under the provisions of the RTE Act, as expeditiously as possible and, in any case, not later than six months from the date of pronouncement of this judgment.
11. All the State Governments which have not constituted the State Advisory Council in terms of Section 34 of the RTE Act shall so constitute the Council within three months from today. The Council so constituted shall undertake its requisite functions in accordance with the provisions of Section 34 of the Act and advise the Government in terms of clauses (6), (7) and (8) of this order immediately thereafter.
12. Central Government and State Governments may set up a proper Regulatory Authority for supervision and effective functioning of the Act and its implementation.
13. Madrasas, Vedic Pathshalas etc. which predominantly provide religious instructions and do not provide for secular education stand outside the purview of the Act.
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2012 (4) TMI 640 - RAJASTHAN HIGH COURT
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... ... ..... ion and bring transparency in obligation of discharge of duties of public authorities whose legal obligation is to disclose information as desired by the person and who is not supposed to disclose his locus or interest, unless exempted under the RTI Act. However, this Court can take judicial notice that even after the RTI Act having come into force since 21/06/2005; but still public authorities are not prepared in providing/ disclosing information which a person/citizen has a right to claim under RTI Act and orders of the Information Officer & appellate authority are consistently coming up being assailed by public authorities. In the light of what has been observed (supra), this Court finds no apparent manifest error being committed warranting interference in the order impugned. Consequently, writ petition fails and is hereby dismissed and the petitioner is directed to provide information in terms of order of the Commissioner RTI within fifteen days positively. No costs.
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2012 (4) TMI 575 - SUPREME COURT
Whether while granting relief to the husband of respondent No. 1, the learned Single Judge overlooked the fact that the writ petition had been filed after almost 4 years of the rejection of an application for allotment of 1000 sq. yards plot made by Ranjodh Kumar Thakur?
Whether the claim of Ranjodh Kumar Thakur for allotment of land was clearly misconceived and was rightly rejected by the Joint Secretary (L&B), Delhi Administration on the ground that he was not the owner of land comprised in khasra No. 70/2?
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2012 (4) TMI 572 - SUPREME COURT
Whether the plaintiff has the right to possession and enjoyment of the suit property?
Whether the plaintiff and his father have obtained right of enjoyment through adverse enjoyment?
As per the averments on the defendant’s side, is it true that the plaintiff’s father in the capacity of the watchman of the suit property has been in enjoyment of the suit property?
Whether the plaintiff is entitled to a relief of permanent injunction as prayed for by him?
Whether the plaintiff Association is competent to file this case?
Whether the plaint property belongs to the plaintiff’s club?
Is it right that the defendant’s father Appadurai Pillai in the capacity of a Watchman, has been maintaining the suit property?
When there is a Second Appeal pending before the High Court in S.A. No.1923 of 2002 against the judgment and decree of the Court of the District Munsif in O.S. No. 1143 of 1994 is sustainable.
Whether the defendant has acquired the right of possession in the plaint property due to adverse possession?
Whether this case has been procedurally evaluated for the court fee and jurisdiction?
Is the Court competent to try this Court?
To what other relief is the plaintiff entitled to?
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2012 (4) TMI 554 - DELHI HIGH COURT
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... ... ..... roposed to be passed, the AETO will have to afford adequate and reasonable opportunity of being heard to the petitioner. He should also examine the facts and the sponsorship agreements before passing orders, keeping in view our observations in paragraph 16 above. 23. In these writ petitions, interim directions were issued for deposit of tax as condition for issue of NOC for holding the events. The events were permitted to be held as the petitioners deposited the tax as directed by this court. In the assessment orders to be passed under section 15 of the Act, pursuant to the disposal of the writ petitions, the AETO may raise demands including interest, subject to appropriate/suitable adjustments for tax already deposited, and subject to the petitioner being given reasonable opportunity of being heard. 24. In the result W.P.(C) Nos. 1145/2010 and 1169/2010 are allowed to the extent indicated above and all other writ petitions are dismissed. There shall be no order as to costs.
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2012 (4) TMI 481 - KERALA HIGH COURT
Vested right of promotion – petitioners passed the department examination, for the post of Senior Tax Assistants in February, 2009 seeking consideration for promotion to that category before 1.1.2010 - vacancies were identified as available as on 1.1.2010 to operate during F.Y. 2010-11 – Held that:- Appointment to a higher category, even by promotion, is not a vested entitlement. It is also the vested right that among the persons in the field of choice, seniority will apply unless the junior has certain other grounds for marching over the priority based on seniority that may be available to an admitted senior. In present case, petitioners do not have any claim that any person junior to them in same category was given promotion in preference to them. Further, period of service would be counted from actual date of promotion and not from availability of vacancy – Petition dismissed
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