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Indian Laws - Case Laws
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2013 (10) TMI 1343 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... ly received under the Right to Information Act, the entire proceedings including the show cause notices may be quashed and the goods may be ordered to be released. 3. Counsel for the respondents submits that as the matter is pending adjudication, the petitioner may raise these pleas before the adjudicating authority, who would decide the matter within such time as this Court may deem fit. 4. We have heard Counsel for the parties and as the matter is pending adjudication before the adjudicating authority dispose of the writ petition by directing the petitioner to appear before the adjudicating authority, with liberty to raise all pleas raised herein including the plea based on information supplied under the RTI Act. The adjudicating authority shall grant personal hearing to the petitioner and conclude the matter within a week of the petitioner furnishing his reply/defence if any. 5. Parties are directed to appear before the adjudicating authority on 29-10-2013.
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2013 (10) TMI 1337 - SUPREME COURT
Whether Governor and the State Government Authorities have powers in relation to review under the provisions of Rules 31 and 32 of the Orissa Civil Services (Classification, Control & Appeal) Rules, 1962?
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2013 (10) TMI 1297 - SUPREME COURT
To conduct an investigation de novo into the conspiracy and gruesome murder - Request for appointment of an independent Special Investigation Team - Held that:- In the decision of Ram Jethmalani and others Vs. Union of India and others reported [2011 (7) TMI 844 - Supreme Court of India ](to which one us Justice S.S. Nijjar was a party) considering the nature of grievances expressed by the writ petitioner, constituted a High Level Committee as an Special Investigation Team in order to ensure that an effective investigation is carried out and the culprits were brought to book.
From the various decisions relied upon by the petitioner counsel as well as by respondents counsel, the following principles can be culled out - The test of admissibility of evidence lies in its relevancy - Unless there is an express or implied constitutional prohibition or other law, evidence placed as a result of even an illegal search or seizure is not liable to be shut out - If deficiency in investigation or prosecution is visible or can be perceived by lifting the veil which try to hide the realities or covering the obvious deficiency, Courts have to deal with the same with an iron hand appropriately within the framework of law - It is as much the duty of the prosecutor as of the Court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice - In order to ensure that the criminal prosecution is carried on without any deficiency, in appropriate cases this Court can even constitute Special Investigation Team and also give appropriate directions to the Central and State Governments and other authorities to give all required assistance to such specially constituted investigating team in order to book the real culprits and for effective conduct of the prosecution - While entrusting the criminal prosecution with other instrumentalities of State or by constituting a Special Investigation Team, the High Court or this Court can also monitor such investigation in order to ensure proper conduct of the prosecution - n appropriate cases even if the chargesheet is filed it is open for this Court or even for the High Court to direct investigation of the case to be handed over to CBI or to any other independent agency in order to do complete justice - In exceptional circumstances the Court in order to prevent miscarriage of criminal justice and if considers necessary may direct for investigation de novo.
Having noted the various relevant features, we find force in the submission of learned counsel for the petitioner that the proceeding of the case by the prosecution either by the State Police or by the CID and after it was taken over by CBI was not carried out in a satisfactory manner. The very fact that after the occurrence took place on 21.05.2001 there was serious lapse in apprehending many of the accused and the absconding of the prime accused Nicol Tamang and Dinesh Subba till this date disclose that there was total lack of seriousness by the prosecution agency in carrying out the investigation. The circumstances pointed out on behalf of the petitioner, namely, the absconding of many of the accused between May, 2010 and February, 2013 was a very relevant circumstance which gives room for suspicion in the mind of this Court as to the genuineness with which the case of the prosecution was being carried out. The submission that the murder took place due to political rivalry cannot be a ground for anyone, much less, the investigation agency to display any slackness or lethargic attitude in the process of investigation. Whether it be due to political rivalry or personal vengeance or for that matter for any other motive a murder takes place, it is the responsibility of the police to come up to the expectation of the public at large and display that no stone will remain unturned to book the culprits and bring them for trial for being dealt with under the provisions of the criminal law of prosecution. Any slackness displayed in that process will not be in the interest of public at large and therefore as has been pointed out by this Court in the various decisions, which we have referred to in the earlier paragraphs, we find that it is our responsibility to ensure that the prosecution agency is reminded of its responsibility and duties in the discharge of its functions effectively and efficiently and ensure that the criminal prosecution is carried on effectively and the perpetrators of crime are duly punished by the appropriate Court of law.
In as much as the petitioner only seeks for handling of the case of murder of her deceased husband by the prosecuting agency, namely, the CBI here with utmost earnestness against all the accused who were involved in the crime, we feel that by issuing appropriate directions in this writ petition and by monitoring the same the grievances expressed by the petitioner can be duly redressed and the interest of the public at large can be duly safeguarded. - Decided in favour of appellant.
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2013 (10) TMI 1262 - SUPREME COURT
Tenders for grant of leasehold rights - Held that:- It is not in dispute that the open spaces available at Doraisamy Reddiar Market is public property. Therefore, the same cannot be disposed of by private negotiations and the members of the appellant, who have unauthorisedly occupied the open spaces cannot be allowed to retain those spaces. Respondent No.2, which is an institution of self- Government (Article 243P(e) read with Article 243Q of the Constitution), is required to undertake and execute several schemes i.e. water-supply, lighting, drainage, sewerage, laying and maintaining of public streets etc. for the benefit of the residents of the municipal area. For fulfilling its obligation under the 1920 Act and carrying out the duties and functions which may be entrusted to it under Schedule XII of the Constitution, respondent No.2 requires substantial fund. The contribution made by the State Government to municipal bodies, like, respondent No.2 is negligible. Therefore, they are required to augment the sources by grant of lease etc. of their properties by auction or by adopting appropriate mechanism consistent with the doctrine of equality and no fault can be found with the exercise undertaken by respondent No.2 to invite tenders for holding auction for the open spaces available in Doraisamy Reddiar Market - there cannot be any policy, much less, a rational policy of allotting land on the basis of applications made by individuals, bodies, organisations or institutions dehors an invitation or advertisement by the State or its agency / instrumentality. By entertaining applications made by individuals, organisations or institutions for allotment of land or for grant of any other type of largesse the State cannot exclude other eligible persons from lodging competing claim. Any allotment of land or grant of other form of largesse by the State or its agencies/instrumentalities by treating the exercise as a private venture is liable to be treated as arbitrary, discriminatory and an act of favouritism and/or nepotism violating the soul of the equality clause embodied in Article 14 of the Constitution - respondent No.2 did not commit any illegality by inviting sealed tenders for conducting open auction for grant of lease of the spaces occupied by members of the appellant - Decided against Appellant.
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2013 (10) TMI 1206 - BOMBAY HIGH COURT
Accommodation after appointment - Accommodation to retired officers employed after retirement - Held that:- It appears that there are large number of Administrative Tribunals which are required to dispense justice to a large number of persons in the State of Maharashtra. Apart from Sales Tax Tribunal, there are other Tribunals and it appears that so far the policy of the State Government is not to give official accommodation to members of such Tribunals if they are retired Administrative Officers / Police Officers / Judicial Officers. Official accommodation is being provided to only those who are in service before reaching the age of superannuation. This Court fails to understand why the State Government should not provide official accommodation to the members of Administrative Tribunals even if they have retired and are now employed after their retirement - The State Government shall therefore consider providing official accommodation to the members of Administrative Tribunals even if such members are employed after their retirement from Administrative Service / Police Service / Judicial Service - Decided in favour of Appellant.
Shortage of employees - Held that:- against the strength of 10, there are only 3 persons manning the post of President and members of the Maharashtra Sales Tax Tribunal at Mumbai - retired Administrative Officers / Police Officers / Judicial Officers would be willing to accept the assignment only if they are given official accommodation and, therefore, let the State Government first decide the question of providing official accommodation to the members from amongst the retired persons - Decided in favour of Appellant.
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2013 (10) TMI 1154 - SUPREME COURT
Right to not to vote - "None of the Above" (NOTA) option - Constitutional validity of Rules 41(2) & (3) and 49-O of the Conduct of Election Rules, 1961 - Violation of the secrecy of voting - Held that:- Free and fair election is a basic structure of the Constitution and necessarily includes within its ambit the right of an elector to cast his vote without fear of reprisal, duress or coercion. Protection of elector's identity and affording secrecy is therefore integral to free and fair elections and an arbitrary distinction between the voter who casts his vote and the voter who does not cast his vote is violative of Article 14. Thus, secrecy is required to be maintained for both categories of persons - Giving right to a voter not to vote for any candidate while protecting his right of secrecy is extremely important in a democracy. Such an option gives the voter the right to express his disapproval with the kind of candidates that are being put up by the political parties.
When the political parties will realize that a large number of people are expressing their disapproval with the candidates being put up by them, gradually there will be a systemic change and the political parties will be forced to accept the will of the people and field candidates who are known for their integrity - Rules 41(2) & (3) and 49-O of the Rules are ultra vires Section 128 of the RP Act and Article 19(1)(a) of the Constitution to the extent they violate secrecy of voting.
In view of our conclusion, we direct the Election Commission to provide necessary provision in the ballot papers/EVMs and another button called "None of the Above" (NOTA) may be provided in EVMs so that the voters, who come to the polling booth and decide not to vote for any of the candidates in the fray, are able to exercise their right not to vote while maintaining their right of secrecy. Inasmuch as the Election Commission itself is in favour of the provision for NOTA in EVMs, we direct the Election Commission to implement the same either in a phased manner or at a time with the assistance of the Government of India. We also direct the Government of India to provide necessary help for implementation of the above direction. Besides, we also direct the Election Commission to undertake awareness programmes to educate the masses - Decided in favour of petitioner.
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2013 (10) TMI 1108 - SUPREME COURT
Qualification of person to be appointed as Information Commissioners - Validity of provisions of RTI - Whether provisions of Sections 12(5), 12(6), 15(5) and 15(6) of the Right to Information Act, 2005 are ultra vires the Constitution - Held that:- Under Order XL of the Supreme Court Rules, 1966 this Court can review its judgment or order on the ground of error apparent on the face of record and on an application for review can reverse or modify its decision on the ground of mistake of law or fact. As the judgment under review suffers from mistake of law, we allow the Review Petitions, recall the directions and declarations in the judgment under review and dispose of Writ Petition (C) No. 210 of 2012 with the following declarations and directions:
(i) We declare that Sections 12(5) and 15(5) of the Act are not ultra vires the Constitution.
(ii) We declare that Sections 12(6) and 15(6) of the Act do not debar a Member of Parliament or Member of the Legislature of any State or Union Territory, as the case may be, or a person holding any other office of profit or connected with any political party or carrying on any business or pursuing any profession from being considered for appointment as Chief Information Commissioner or Information Commissioner, but after such person is appointed as Chief Information Commissioner or Information Commissioner, he has to discontinue as Member of Parliament or Member of the Legislature of any State or Union Territory, or discontinue to hold any other office of profit or remain connected with any political party or carry on any business or pursue any profession during the period he functions as Chief Information Commissioner or Information Commissioner.
(iii) We direct that only persons of eminence in public life with wide knowledge and experience in the fields mentioned in Sections 12(5) and 15(5) of the Act be considered for appointment as Information Commissioner and Chief Information Commissioner.
(iv) We further direct that persons of eminence in public life with wide knowledge and experience in all the fields mentioned in Sections 12(5) and 15(5) of the Act, namely, law, science and technology, social service, management, journalism, mass media or administration and governance, be considered by the Committees under Sections 12(3) and 15(3) of the Act for appointment as Chief Information Commissioner or Information Commissioners.
(v) We further direct that the Committees under Sections 12(3) and 15(3) of the Act while making recommendations to the President or to the Governor, as the case may be, for appointment of Chief Information Commissioner and Information Commissioners must mention against the name of each candidate recommended, the facts to indicate his eminence in public life, his knowledge in the particular field and his experience in the particular field and these facts must be accessible to the citizens as part of their right to information under the Act after the appointment is made.
(vi) We also direct that wherever Chief Information Commissioner is of the opinion that intricate questions of law will have to be decided in a matter coming up before the Information Commission, he will ensure that the matter is heard by an Information Commissioner who has wide knowledge and experience in the field of law.
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2013 (10) TMI 1057 - SUPREME COURT
Scope of the Definition of Public Authority u/s 2(h) RTI Act - Whether a co-operative society registered under the Kerala Co-operative Societies Act, 1969 will fall within the definition of “public authority” under Section 2(h) of the Right to Information Act, 2005 and be bound by the obligations to provide information sought for by a citizen under the RTI Act – Held that:- The Cooperative Societies registered under the Kerala Co-operative Societies Act will not fall within the definition of “public authority” as defined under Section 2(h) of the RTI Act and the State Government letter dated 5.5.2006 and the circular dated 01.06.2006 issued by the Registrar of Co-operative Societies, Kerala, to the extent, made applicable to societies registered under the Kerala Co-operative Societies Act would stand quashed in the absence of materials to show that they are owned, controlled or substantially financed by the appropriate Government
Co-operative Societies and Article 12 of the Constitution - Whether the Co-operative Societies will fall within the expression “State” within the meaning of Article 12 of the Constitution of India – Held that:- Societies are, of course, subject to the control of the statutory authorities but cannot be said that the State exercises any direct or indirect control over the affairs of the society which is deep and all pervasive - Supervisory or general regulation under the statute over the co-operative societies, which are body corporate does not render activities of the body so regulated as subject to such control of the State so as to bring it within the meaning of the “State” or instrumentality of the State - General regulations under an Act, like the Companies Act or the Cooperative Societies Act, would not render the activities of a company or a society as subject to control of the State - the Co-operative Societies will not fall within the expression “State” or “instrumentalities of the State” within the meaning of Article 12 of the Constitution and hence not subject to all constitutional limitations as enshrined in Part III of the Constitution.
Constitutional provisions and Co-operative autonomy - Rights of the citizens to form co-operative societies voluntarily, is now raised to the level of a fundamental right and State shall endeavour to promote their autonomous functioning - Co-operative society is a state subject under Entry 32 List I Seventh Schedule to the Constitution of India - Co-operative society is essentially an association or an association of persons who have come together for a common purpose of economic development or for mutual help.
BURDEN TO SHOW - The burden to show that a body is owned, controlled or substantially financed or that a non-government organization is substantially financed directly or indirectly by the funds provided by the appropriate Government is on the applicant who seeks information or the appropriate Government - the categories mentioned in Section 2(h) of the Act exhaust themselves, there is no question of adopting a liberal construction to the expression “public authority” to bring in other categories into its fold, which do not satisfy the tests - Court cannot, when language is clear and unambiguous, adopt such a construction which, according to the Court, would only advance the objective of the Act - the opening part of the definition clause which states “unless the context otherwise requires” - No materials have been made available to show that the cooperative societies, with which we are concerned, in the context of the Act, would fall within the definition of Section 2(h) of the Act – Decided in favour of Petitioner.
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2013 (10) TMI 1007 - GAUHATI HIGH COURT
Title of property - Whether the learned court below misread the evidence of PW4 in concluding that the defendant was a trespasser on the suit land and that the plaintiff had right, title and interest therein, thus vitiating the impugned judgment and order by an error on a substantial question of law - Held that:- father of the defendant was a worker of the Tea Estate. The defendant, while examining himself as DW1, had stated that his father had constructed the house in the year 1955 but he never lived there. DW1 had also stated that he was born in the disputed house. He has further stated that he used to live in the house with his wife and other family members. From his own evidence, it appears that he was born sometime in 1946 as he had stated that in cross-examination recorded on 03.08.1991, he was about 45 years old. Therefore, his plea that he was born in that house cannot be accepted. It is on record that father of the defendant retired in the year 1973 and expired in the year 1984 - Evidence of witnesses of plaintiff discloses that father of the defendant was allotted the quarter which is the disputed house. Subsequently, the quarter was allotted to Rajesh, who is husband of PW2. After he had resigned from the services of the Tea Estate, the quarter was allotted to PW2. DW1 had also deposed that Rajesh and Nandi had separated after about 3 years of marriage. There is also evidence that all of them used to reside together in that disputed house and that the defendant forcefully evicted PW2 from the quarter - Decided against appellant.
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2013 (10) TMI 955 - SUPREME COURT
Refund Claim - Auction sale - Kerala Abkari Shops (Disposal in Auction) Rules – Doctrine of Frustration – Statutory Contract - Validity of the judgment whereby the Division Bench held that the State was entitled to forfeit the entire deposited amount - Whether the appellant could invoke the doctrine of frustration or impossibility or whether she will be bound by the terms of the statutory contract – Held that:- On the failure of the auction purchaser to execute the agreement whether temporary or permanent, the deposit already made by auction purchaser towards earnest money and security money shall be forfeited - The appellant was declared as auction purchaser and she had deposited 30% of the bid amount in terms of Rule 5(10) of the Rules.
A statutory contract in which party takes absolute responsibility cannot escape liability whatever may be the reason - In such a situation, events will not discharge the party from the consequence of non-performance of a contractual obligation - in a case in which the consequences of non-performance of contract is provided in the statutory contract itself, the parties shall be bound by that and cannot take shelter behind Section 56 of the Contract Act - Rule 5(15) in no uncertain terms provides that “on the failure of the auction purchaser to make such deposit referred to in subrule 10” or “execute such agreement temporary or permanent” “the deposit already made by him towards earnest money and security shall be forfeited to Government” - the appellant had not carried out several obligations as provided in sub-rule (10) of Rule 5 and consequently, by reason of sub-rule (15), the State was entitled to forfeit the security money - In a contract under the Abkari Act and the Rules made thereunder, the licensee undertakes to abide by the terms and conditions of the Act and the Rules made thereunder which are statutory and in such a situation, the licensee cannot invoke the doctrine of fairness or reasonableness – Decided against Assessee.
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2013 (10) TMI 905 - SUPREME COURT
Admissibility of document which was not registered or no stamp duty was paid as prescribed - scope of the term Conveyance - specific performance of contract, possession and permanent injunction - - Plaintiffs contends that the properties in question were delivered to them on payment of the part consideration money in pursuance of the agreement to sell - Held that:- it is evident that an instrument by which movable or immovable property is transferred, comes within the expression “conveyance”. In the present case, an immovable property is transferred on payment of part of the consideration and handing over the possession of the property.
The agreement to sell in question is a conveyance within the meaning of Section 2(10) of the Act and is to be duly stamped. Section 35 of the Act makes instruments not duly stamped inadmissible in evidence.
The deed of agreement having been insufficiently stamped, the same was inadmissible in evidence. The court being an authority to receive a document in evidence to give effect thereto, the agreement to sell with possession is an instrument which requires payment of the stamp duty applicable to a deed of conveyance. Duty as required, has not been paid and, hence, the trial court rightly held the same to be inadmissible in evidence.
If in a document certain recitals are made then the Court would decide the admissibility of the document on the strength of such recitals and not otherwise. In a given case, if there is an absolute unregistered sale deed and the parties say that the same is not required to be registered then we don’t think that the Court would be entitled to admit the document because simply the parties say so. The jurisdiction of the Court flows from Sections 33, 35 and 38 of the Indian Stamp Act and the Court has to decide the question of admissibility - Decided in favour of Appellant.
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2013 (10) TMI 733 - SUPREME COURT
Blacklisting of company for allotment of future contract - Misconduct and irregularity - Receipt of excessive payments - Held that:- ‘debarment’ is recognised and often used as an effective method for disciplining deviant suppliers/contractors who may have committed acts of omission and commission or frauds including misrepresentations, falsification of records and other breaches of the regulations under which such contracts were allotted. What is notable is that the ‘debarment’ is never permanent and the period of debarment would invariably depend upon the nature of the offence committed by the erring contractor - according to the respondent-BSNL, the appellant had fraudulently withdrawn a huge amount of money which was not due to it in collusion and conspiracy with the officials of the respondent-corporation. Even so permanent debarment from future contracts for all times to come may sound too harsh and heavy a punishment to be considered reasonable especially when (a) the appellant is supplying bulk of its manufactured products to the respondent-BSNL and (b) The excess amount received by it has already been paid back.
Because blacklisting is in the nature of penalty the quantum whereof is a matter that rests primarily with the authority competent to impose the same. In the realm of service jurisprudence this Court has no doubt cut short the agony of a delinquent employee in exceptional circumstances to prevent delay and further litigation by modifying the quantum of punishment but such considerations do not apply to a company engaged in a lucrative business like supply of optical fibre/HDPE pipes to BSNL. Secondly, because while determining the period for which the blacklisting should be effective the respondent- Corporation may for the sake of objectivity and transparency formulate broad guidelines to be followed in such cases. Different periods of debarment depending upon the gravity of the offences, violations and breaches may be prescribed by such guidelines. While, it may not be possible to exhaustively enumerate all types of offences and acts of misdemeanour, or violations of contractual obligations by a contractor, the respondent-Corporation may do so as far as possible to reduce if not totally eliminate arbitrariness in the exercise of the power vested in it and inspire confidence in the fairness of the order which the competent authority may pass against a defaulting contractor - Decided in favour of Appellant.
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2013 (10) TMI 680 - GUJARAT HIGH COURT
Status of a Person - whether NRI or not - eligibility for admission in Post Graduate Medical Course (PG Medical Course) - Applicability of provisions of determination of NRI under the Income Tax Act, 1961 as well as under the relevant provisions of the Foreign Exchange Management Act, 1999 (the FEMA) - Held that:- The definition of word “NRI” was amended by the respondent/College whereby it included the provisions of the FEMA also, the petitioners, who are residents of India, as rightly pointed out by the respondent, have followed a devise to go out of country for work for some time on work permits that too as sales clerk, after having graduated in medicine, only with a view to get themselves admitted in NRI quota for admission in P.G. Medical course.
The decision taken by the respondent/College is violative of the principles of natural justice, on considering the record of the petition, the respondent/College had published only a provisional merit list, which does not create any indefeasible rights in favour of the petitioners and the respondent/College has authority to scrutinize the basis on which the petitioners have claimed NRI status - it is of the duty of the respondent/College to properly scrutinize such applications, as the Apex Court in the case of P. A. Inamdar and others Versus State of Maharashtra and others [2005 (8) TMI 614 - SUPREME COURT ] has emphasized that genuine NRI should get benefit of such quota.
In the academic years 2011-12 and 2012-13, the respondent/College has considered similarly situated students and have granted admission in P.G. Medical course, however, even if such mistake is committed by the respondent/College, which is not in accordance with the ratio laid down by the Apex Court in P.A.Inamdar case - the petitioners cannot claim any equity - The respondent has rightly relied upon the ratio laid down by the Apex Court in the case of Union of India Vs. International Trading Co. [2003 (5) TMI 480 - SUPREME COURT OF INDIA].
The genuineness of the status of NRI is to be scrutinized and examined by the respondent/College in its true letter and spirit - It is a fact that NRI quota is a reserve quota and, therefore, the respondent/College is duty bound to see that only genuine NRI gets admission in such quota and it should not be a devise to get out of turn admission by way of a backdoor entry as the same would affect other meritorious students, who are otherwise eligible - At the cost of repetition, in facts of these petitions well qualified medical graduates went to UAE, opted for post of clerks/salesman on a paltry salary and stayed there for hardly six months, without any intention to back clearly exhibits the method adopted is not but a devise to get claim NRI status and obtained admission, by a back door entry as other on merits it is not possible to get it. In light of this factual position, the petitioners cannot be considered as bona fide NRIs.
The decision of non-inclusion of the petitioners’ names in the final merit list is the subject matter of these petitions and no further aspects are being considered by this Court - the respondent/College should go to the root of the matter and should also inquire whether person claiming to have obtained job and have entered into a contract with the company situated outside India are genuine or not - The respondent/College has to find out whether the student is a bona fide NRI or not – the decision taken by the respondent/College is legal and proper and the same does not require any interference of this Court in its jurisdiction under Article 226 of the Constitution of India – Decided against Petitioner.
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2013 (10) TMI 529 - SUPREME COURT
Granting Licence for establishing Distilleries under the Foreign Liquor (Compounding, Blending and Bottling) Rules, 1975 r.w Section 14 of the Abkari Act – Right to carry on trade or business in liquor – Held that:- Article 47 is one of the Directive Principles of State Policy which is fundamental in the governance of the country and the State has the power to completely prohibit the manufacture, sale, possession, distribution and consumption of liquor as a beverage because it is inherently dangerous to the human health - A citizen has no fundamental right to trade or business in liquor as a beverage and the activities, which are res extra commercium, cannot be carried on by any citizen and the State can prohibit completely trade or business in portable liquor and the State can also create a monopoly in itself for the trade or business in such liquor.
LIQUOR POLICY - Liquor policy of State is synonymous or always closely associated with the policy of the Statute dealing with liquor or such obnoxious subjects - Monopoly in the trade of liquor is with the State and it is only a privilege that a licensee has in the matter of manufacturing and vending in liquor - It is trite law that a Court of Law is not expected to propel into “the unchartered ocean” of State’s Policies - State has the power to frame and reframe, change and re-change, adjust and readjust policy, which cannot be declared as illegal or arbitrary on the ground that the earlier policy was a better and suited to the prevailing situations. Situation which exited in the year 1998 had its natural death and cannot be revised in the year 2013, when there is total ban.
DISCRETION AND DUTY - The powers, conferred on the Commissioner as well as the Government, have to be understood in the light of the Constitutional scheme bearing in mind the fact that the trade or business which is inherently harmful can always be restricted, curtailed or prohibited by the State, since it is the exclusive privilege of the State - State can always adopt a “restrictive policy”, even in cases where the applicants have satisfied all the conditions stipulated in the rules and the policy permits granting of licences - the satisfaction of the conditions laid down in 1975 Rules would not entitle an applicant as a matter of right to claim a distillery licence which is within the exclusive privilege of the State.
MANDAMUS – TO ISSUE LICENCE - The High Court cannot direct the State Government to part with its exclusive privilege – Granting liquor licence is not like granting licence to drive a cab or parking a vehicle or issuing a municipal licence to set up a grocery or a fruit shop - Before issuing a writ of mandamus, the High Court should have, at the back of its mind, the legislative scheme, its object and purpose, the subject matter, the evil sought to be remedied, State’s exclusive privilege etc. and not to be carried away by the idiosyncrasies or the ipse dixit of an officer who authored the order challenged - applicant has failed to establish a legal right or to show that there is a legal duty on the Commissioner or the Government to issue a distillery licence.
DISCRETIONARY ORDER – ARTICLE 14 – Held that:- The Respondent could lay a claim only if it establishes that a preferential treatment has been meted out to M/s Amrut Distilleries, Bangalore and M/s. Empee Distilleries, Madras while granting licences for establishing the respective distillery units in the Palakkad District on the ground of discrimination violating Article 14 of the Constitution of India - Respondent has prayed for another licence for it as well which cannot be claimed as a matter of right - Citizens cannot have a fundamental right to trade or carry on business in the properties or rights belonging to the State nor can there be any infringement of Article 14, if the State prefers other applicants for the grant of licence, during the pendency of some other applications, unless an applicant establishes a better claim over others - The learned single Judge as well as the Division Bench of the High Court was not justified in issuing a Writ of Mandamus directing the issuance of a distillery licence to the respondent – order set aside – Decided in favour of Petitioner.
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2013 (10) TMI 488 - CALCUTTA HIGH COURT
Refusal in Granting Succession Certificate – Releasing the amount of arrear pension and other reliefs - Whether a certificate issued by the Administrator General can be equated with a succession certificate issued by a Court of law – Held that:- There is no doubt that the procedure required for issuing succession certificate is much elaborate in nature - Notice has to be served on the rival claimants - But a certificate issued by the Administrator General is on affidavits only - The certificate issued by the Administrator General under section 29 of the Act cannot be equated with that of a certificate issued by the Administrator General - There was no lack of logic in the insistence of the respondents upon a succession certificate from a Court of law - If the law requires a succession certificate to be obtained from a competent Court of law that cannot be short-routed by obtaining a certificate under section 29 - it cannot be said that the authorities had unjustly insisted on a succession certificate –Decided against Petitioner.
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2013 (10) TMI 432 - SUPREME COURT
Federalism - Single National Eligibility-cum-Entrance Test - Violation of constitutional provisions - Held that:- The direction contained in Sub-section (2) of Section 19A of the 1956 Act makes it a pre-condition for the Regulations and all subsequent amendments to be submitted to the Central Government for sanction. The Council is required to take into consideration the comments of any State Government within three months from the furnishing of copies of the draft Regulations and/or subsequent amendments thereto. There is nothing to show that the MCI ever sent the draft amended Regulations to the different State Governments for their views. The submission of the draft Regulations and all subsequent amendments thereto cannot be said to be directory, since upon furnishing of the draft Regulations and all subsequent amendments thereto by the Council to all the State Governments, the Council has to take into consideration the comments, if any, received from any State Government in respect thereof, before submitting the same to the Central Government for sanction.
Right to administer an educational institution would also include the right to admit students, which right, in our view, could not be taken away on the basis of Notifications issued by the MCI and the DCI which had no authority, either under the 1956 Act or the 1948 Act, to do so. The MCI and the DCI are creatures of Statute, having been constituted under the Indian Medical Council Act, 1956, and the Dentists Act, 1948, and have, therefore, to exercise the jurisdiction vested in them by the Statutes and they cannot wander beyond the same. Of course, under Section 33 of the 1956 Act and Section 20 of the 1948 Act, power has been reserved to the two Councils to frame Regulations to carry out the purposes of their respective Acts. It is pursuant to such power that the MCI and the DCI has framed the Regulations of 1997, 2000 and 2007, which set the standards for maintaining excellence of medical education in India. The right of the MCI and the DCI to prescribe such standards has been duly recognised by the Courts. However, such right cannot be extended to controlling all admissions to the M.B.B.S., the B.D.S. and the Post-graduate Courses being run by different medical institutions in the country. At best, a certain degree of control may be exercised in regard to aided institutions, where on account of the funds being provided by the Government, it may have a say in the affairs of such institutions.
The rights of private individuals to establish and administer educational institutions under Article 19(1)(g) of the Constitution are now well-established and do not require further elucidation. The rights of unaided and aided religious and linguistic minorities to establish and administer educational institutions of their choice under Article 19(1)(g), read with Article 30 of the Constitution, have come to be crystalised in the various decisions of this Court referred to hereinabove, which have settled the law that the right to admit students in the different educational and medical institutions is an integral part of the right to administer and cannot be interfered with except in cases of maladministration or lack of transparency. The impugned Regulations, which are in the nature of delegated legislation, will have to make way for the Constitutional provisions. The freedom and rights guaranteed under Articles 19(1)(g), 25, 26 and 30 of the Constitution to all citizens to practise any trade or profession and to religious minorities to freedom of conscience and the right freely to profess, practise and propagate religion, subject to public order, morality and health and to the other provisions of Part III of the Constitution, and further to maintain institutions for religious and charitable purposes as guaranteed under Articles 25 and 26 of the Constitution, read with the rights guaranteed under Article 30 of the Constitution, are also well-established by various pronouncements of this Court. Over and above the aforesaid freedoms and rights is the right of citizens having a distinct language, script or culture of their own, to conserve the same under Article 29(1) of the Constitution.
Right to admit students, being an essential facet of the right to administer educational institutions of their choice, as contemplated under Article 30 of the Constitution, the State Government or the University may not be entitled to interfere with that right, so long as the admission to the unaided educational institutions was on a transparent basis and merit was adequately taken care of. The learned Judges went on to indicate that the right to administer, not being absolute, there could be regulatory measures for ensuring educational standards and maintaining excellence thereof, and it was more so in the matter of admissions to professional institutions.
Whether the rights of minorities to establish and administer educational institutions of their choice would include the procedure and method of admission and selection of students - minority institution may have its own procedure and method of admission as well as selection of students, but such a procedure must be fair and transparent and the selection of students in professional and higher educational colleges should be on the basis of merit and even an unaided minority institution should not ignore the merit of the students for admission while exercising its right to admit students to professional institutions. On the question whether the rights of minority institutions regarding admission of students and to lay down the procedure and method of admission would be affected, in any way, by receipt of State aid, the learned Judges were of the view that while giving aid to professional institutions, it would be permissible for the authority giving aid to prescribe conditions in that regard, without, however, affecting the right of such institutions to actually admit students in the different courses run by them.
Regulations on Graduate Medical Education (Amendment) 2010 (Part II)" and the "Post Graduate Medical Education (Amendment) Regulation, 2010 (Part II)", whereby the Medical Council of India introduced the single National Eligibility-cum-Entrance Test and the corresponding amendments in the Dentists Act, 1948, are ultra vires the provisions of Articles 19(1)(g), 25, 26(a), 29(1) and 30(1) of the Constitution, since they have the effect of denuding the States, State-run Universities and all medical colleges and institutions, including those enjoying the protection of the above provisions, from admitting students to their M.B.B.S., B.D.S. and Post- graduate courses, according to their own procedures, beliefs and dispensations, which has been found by this Court in the T.M.A. Pai Foundation case (2002 (10) TMI 739 - SUPREME COURT), to be an integral facet of the right to administer. In our view, the role attributed to and the powers conferred on the MCI and the DCI under the provisions of the Indian Medical Council Act, 1956, and the Dentists Act, 1948, do not contemplate anything different and are restricted to laying down standards which are uniformly applicable to all medical colleges and institutions in India to ensure the excellence of medical education in India. The role assigned to the MCI under Sections 10A and 19A(1) of the 1956 Act vindicates such a conclusion.
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2013 (10) TMI 384 - SUPREME COURT
Prayer to Cancel the Temporary Liquor License - The plea raised was that it was not open for the appellant to run a liquor bar in the said restaurant which was in the vicinity of religious places and school - The respondents contended that the religious places and school were situated within the distance of 550 feet of the premises where the license to operate the bar by the Excise Department was granted to the appellant and this was in violation of Rule 8 of the West Bengal Excise (Selection of New Sites and Grant of License for Retail Sale of Liquor and Certain Other Intoxicants) Rules, 2003 (hereinafter referred to as “Rules of 2003”), as amended in the year 2004.
Rule 8 of Rules, 1993 as well as Rule 8 of Rules, 2003 apply only to new sites - Its implication is that those restaurants/ hotels etc. who were already granted license, before coming into force the respective Rules, would not be hit by the mischief of these rules and are allowed the continuation of such a bar license, as pointed out, though the application of the appellant was made in the year 1992, it was processed much after 2004 and the license is also granted after 2004 - Therefore, normally the application would be governed by the Rules prevalent on the date of grant of liquor license - The appellant drew attention to the Circular dated 28.9.2005 issued by the Excise Commissioner to its functionaries and on that basis, he made emphatic plea that pending applications were to be considered on the basis of un-amended Rules, 2003.
We fail to comprehend as to how the application filed in 1992 could be considered in 2010 - In any case, when the request of the appellant was considered in the year 2010, Rules of 2003 as amended in 2004 had to be applied - On the basis of these Rules, the appellant could not have been granted for foreign liquor bar and restaurant license as there are many religious and educational institutions within the 1000 ft. of place from where the appellant is operating - The case of respondent No.4 was not of a new license but existing license - Rule 8 applied to new sites only and in so far as those who were operating already and having existing license, they are not hit by the mischief of this Rule - the judgment of the High Court upheld – Decided against Petitioner.
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2013 (10) TMI 294 - SUPREME COURT
Withholding of Pension - Departmental/ Criminal Proceedings - Whether in the absence of any provision in the Pension Rules, the State Government can withhold a part of pension and/or gratuity during the pendency of departmental/ criminal proceedings - Held that:- The order dated June 12, 1968 denying the petitioner right to receive pension affects the fundamental right of the petitioner under Articles 19(1)(f) and 31(1)of the Constitution, and as such the writ petition under Article 32 was maintainable - It may be that under the Pension Act there was a bar against a civil court entertaining any suit relating to the matters mentioned - That does not stand in the way of a Writ of Mandamus being issued to the State to properly consider the claim of the petitioner for payment of pension according to law.
The right of the petitioner to receive pension was property under Article 31(1) and by a mere executive order the State had no power to withhold the same - Similarly, the said claim was also property under Article 19(1)(f) and it was not saved by Sub-article (5) of Article 19.
For the purposes of quantifying the amount having regard to the period of service and other allied matters, it may be necessary for the authorities to pass an order to that effect, but the right to receive pension flows to an officer not because of the said order but by virtue of the Rules - The Rules clearly recognise the right of persons like the petitioner to receive pension under the circumstances mentioned.
Whether the pension granted to a public servant was property attracting Article 31(1) came up for consideration before the Punjab High Court in Bhagwant Singh v. Union of India [1962 (1) TMI 55 - PUNJAB & HARYANA HIGH COURT] - such a right constitutes “property” and any interference will be a breach of Article 31(1) of the Constitution - It was further held that the State cannot by an executive order curtail or abolish altogether the right of the public servant to receive pension.
A person cannot be deprived of this pension without the authority of law, which was the Constitutional mandate enshrined in Article 300 A of the Constitution - It followed that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced - It hardly needs to be emphasized that the executive instructions were not having statutory character and, therefore, cannot be termed as “law” within the meaning of aforesaid Article 300A - On the basis of such a circular, which is not having force of law, the appellant cannot withhold - even a part of pension or gratuity - so far as statutory rules were concerned, there was no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these rules, the position would have been different.
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2013 (10) TMI 248 - CENTRAL INFORMATION COMMISSION
Right to information - Wrong information furnished - Held that:- as prima facie there has been a considerable delay in providing information to the appellant and incorrect information provided, the CPIO shall be issued with a show cause notice as to why a penalty should not be imposed on him as per Section 20 of the RTI Act.
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2013 (10) TMI 247 - SUPREME COURT
Validity of Charge Sheet - Proceedings against the Addl. CIT - Whether the charge sheet issued against the respondents was without jurisdiction - Held that:- The Central Administrative Tribunal as well as the High Court had correctly interpreted the provisions of the Office Order No. 205 of 2005 - Factually also, a perusal of the record would show that the file was put up to the Finance Minister by the Director General of Income Tax (Vigilance) seeking the approval of the Finance Minister for sanctioning prosecution against one officer and for initiation of major penalty proceeding under Rule 3(1)( i ) and (3) (1) (iii) of the Central Civil Services (Conduct) Rules against the officers mentioned in the note which included the appellant herein - Ultimately, it appeared that the charge memo was not put up for approval by the Finance Minister.
The action had been taken against the respondent in Rule 14(3) of the CCS( CCA ) Rules which enjoins the disciplinary authority to draw up or cause to be drawn up the substance of imputation of misconduct or misbehaviour into definite and distinct articles of charges - The term “cause to be drawn up" does not mean that the definite and distinct articles of charges once drawn up do not have to be approved by the disciplinary authority - The term “cause to be drawn up" merely refers to a delegation by the disciplinary authority to a subordinate authority to perform the task of drawing up substance of proposed “definite and distinct articles of charge sheet" - These proposed articles of charge would only be finalized upon approval by the disciplinary authority - Article 311(1) does not say that even the departmental proceeding must be initiated only by the appointing authority - However, at the same time it was pointed out that “However, it was open to Union of India or a State Government to make any rule prescribing that even the proceeding against any delinquent officer shall be initiated by an officer not subordinate to the appointing authority” - It was further held that “Any such rule shall not be inconsistent with Article 311 of the Constitution because it will amount to providing an additional safeguard or protection to the holders of a civil post."
During the pendency of these proceedings the appellants have after 2009, amended the procedure which provides that the charge memo shall be issued only after the approval is granted by the Finance Minister - it appears that the appeals in these matters were filed and pursued for an authoritative resolution of the legal issues raised.
Although number of collateral issues had been raised by the learned counsel for the appellants as well the respondents, we deem it appropriate not to opine on the same in view of the conclusion that the charge sheet/charge memo having not been approved by the disciplinary authority was non est in the eye of law - there was no merit in the appeals filed by the Union of India - CAT had granted liberty to the appellants to take appropriate action in accordance with law.
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