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Indian Laws - Case Laws
Showing 121 to 140 of 686 Records
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2016 (11) TMI 24 - DELHI HIGH COURT
Offense Section 138 of the Negotiable Instruments Act, 1881 - Held that:- By proving his case by way of leading the oral as well as documentary evidence, the respondent no.2/complainant had duly proved all the essential ingredients of his case under Section 138 of the N.I. Act. The respondent no.2/complainant has also placed on record the promissory note signed by the petitioner. On the other hand, it is an admitted case of the petitioner himself that the cheque in question bore his signatures. Section 139 of the N.I. Act provides for raising of presumption to the effect that the holder of the cheque has received it in discharge of liability. The plea of the petitioner that he had issued the cheque in question to one Sukhbir Singh has not been established as Sukhbir Singh was never examined by the petitioner. The petitioner was given opportunity to lead his defence evidence. Despite availing the said opportunity, the petitioner had not produced any defence evidence to establish his plea that he had given the cheque in question to one Sukhbir Singh.
The Hon’ble Apex Court in the case of Vijay v. Laxman and Anr. (2013 (5) TMI 40 - SUPREME COURT OF INDIA) has observed that once the cheque has been issued and the signatures thereon has been admitted by the accused, then it is not available to the accused to take the defence that the cheque was not issued by him. The present revision petition has been filed assailing the judgments/orders passed by the Courts below. After going through the record and the submissions made by the parties, this Court is of the considered opinion that there is no apparent illegality or infirmity in the judgments/orders passed by the Courts below.
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2016 (10) TMI 1397 - DELHI HIGH COURT
Sale of the mortgaged project - part construction carried out - invocation of provisions of Section 13(12) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - HELD THAT:- The Court is informed that the respondent No.1 has not even nominated a counsel, on whom an advance copy of the present petition could be served. As a result, the respondent No.1/Bank has been served directly at the address given in the memo of parties. Despite the same, none is present on behalf of the said respondent.
Issue notice to the respondents on the petitioner filing the process fee, by ordinary process and speed post, returnable on the date fixed - Till the next date of hearing, the respondents shall maintain status quo in respect of the subject project.
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2016 (10) TMI 1388 - MADRAS HIGH COURT
Seeking enforcement of foreign award - whether the award, which is based on the application of Singaporean law of limitation, would be unenforceable in India on the ground that it is violative of the public policy in India? - Whether the Arbitrator had stepped outside his jurisdiction by considering the claims made by the petitioner for teleport and occasional services, as they were, purportedly, not part of the main agreement? - HELD THAT:- Once it is accepted that the law of limitation would be the Singaporean law, as has also been ruled by the learned Arbitrator, the next tertiary issue which would arise for consideration would be: Would such a conclusion, lead to violation of the public policy in India.
The Court, in Shri Lal Mahal's case [2013 (7) TMI 643 - SUPREME COURT], ultimately, upheld the dicta laid down in its earlier judgment in Renusagar Power Company V. General Electric Company [1993 (10) TMI 232 - SUPREME COURT], which adumbrated that public policy in the context of foreign award has to be viewed in a narrower sense, and that, in order to attract the bar of public policy qua enforcement of a foreign award, it must invoke something more than just a mere violation of the law of India.
In the instant case, the objections articulated clearly do not fall foul of the head, the fundamental policy of India
Frankly, given the scope of Section 45, this argument was not available before the learned Arbitrator. However, since, in any event, such a submission was made, the learned Arbitrator, evidently, dealt with the same and held that as the Singaporean law of limitation applied, the agreement, which was otherwise lawful and binding, was neither null and void, nor inoperative or incapable of being performed, within the meaning of Section 45 of the 1996 Act.
Thus, no fault can be found with the reasoning of the learned Arbitrator, and therefore, this submission, being misconceived, is also rejected - petition allowed.
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2016 (10) TMI 1385 - BOMBAY HIGH COURT
Doctrine of Lis Pendens vis-à-vis the temporary injunction - Protection to the parties from transfers pendente - Would plaintiffs' registering notices of their suits under Section 18 of the Indian Registration Act (though such registration may not be compulsory) not secure for plaintiffs more than what an injunction could secure - Availability of adequate protection before an injunction to restrain transfer pendente lite is issued - temporary injunction to restrain transfers pendente lite, to consider imposition of conditions short of granting injunction, which should protect the plaintiff's interest, like, seeking an undertaking that no equities would be claimed on account of sale or development of properties - applicability of judgment in VASANT TATOBA HARGUDE AND ORS. VERSUS DIKKAYA MUTTAYA PUJARI [1979 (9) TMI 202 - BOMBAY HIGH COURT].
HELD THAT:- The Hon'ble Supreme Court in the case of Sarvinder Singh v. Dalip Singh made this legal position further clear by observing that, "the effect of the Doctrine of Lis Pendens is not to annul the transfer, but only to render it subservient to the rights of the parties to the litigation. In other words, the section 52 in fact, does not have the effect of wiping out a transfer pendent lite altogether, but only subordinates it to the rights of parties based on the decree to the suit. As between the parties to the transfer, that is, the transferor and the transferee, transfer of the title is perfectly valid, and operates to vest the title of the transferor in the transferee. The words "so as to affect the rights of any other party thereto under any decree or order which may be made therein" make it quite clear that the transfer is good except to the extent that it might conflict with rights decreed under the decree or order.
The Law Commission, therefore, in its report, after referring to the laws operating in the U.K. and other countries, recommended amendment in Section 18 of the Indian Registration Act, 1908, on the lines of the Bombay Amendment Act. In view thereof, the Rule of Lis Pendens now applies only when a notice of pendency of the suit, in which any right to involve property is directly and specifically in question, is registered under Section 18(ee) of the Registration Act. The Law Commission, accordingly, suggested corresponding amendment in Section 52 of the TP Act, on the lines of Bombay Amendment Act XIV of 1939.
By Order XXXIX Rule 6, the Court is empowered to make interlocutory orders and which are not of injunction, but permitting sale of any movable property, being the subject-matter of such suit or attached before Judgment in such suit; if that is subject to speedy and natural decay, or if that is required for any other just and sufficient cause, which makes it desirable to have it sold at once. Order XXXIX Rule 7 permits, detention, preservation, inspection etc. of subject-matter of the suit and interlocutory order can be made in that behalf - The power to grant temporary injunction in a mandatory form also flows from the same provision, namely, Order XXXIX Rule 1 CPC. A temporary injunction in a mandatory form is distinct and separate from a mandatory injunction. The object of such a temporary injunction is to preserve status-quo and to prevent irretrievable injury and grant of the same is not a matter of quest.
Once it is held to be so, it automatically follows that even if plaintiff registers the notice of his suit under section 18(ee) of the Registration Act, it will not secure the plaintiff more than what an injunction could secure. Even accepting that transferees pendent lite, in view of such registration, are deemed to have notice of such pendency of the lis and could not claim to be transferees without notices, such transfers do not have the effect of rendering the transaction illegal, which consequence is entailed in case of transaction, if it is in breach of injunction order. Therefore, it has to be held that registration of the suit or proceedings, though preferable and desirable, cannot be a substitute to the order of interim injunction, in terms of extending protection to the parties.
The question as to whose decisions are binding, Article 141 of the Constitution, provides that, "the law declared by the Supreme Court shall be binding on all courts within the territory of India." - It is also well-settled that though there is no specific provision, like, Article 141 of Constitution making the law declared by the High Court binding on subordinate courts, it is implicit in the power of supervision conferred on a superior Court that the Courts subject to its supervision would confirm to the law laid down by it.
Thus it is summarised as below:-
i). Section 52 of TP Act does not provide adequate protection to the parties from transfers pendent lite. The question does lay down a correct proposition of law that, transferees pendent lite are not required to be or entitled as of right to be impleaded as parties to the suit, and they cannot resist execution proceedings in view of provisions of Order XXI Rule 100 of the Code, as amended by this Court.
ii). Mere registration of notices of pending suit cannot secure for plaintiffs more than or even equivalent to what an injunction could secure, as the consequences of alienation in breach of interim injunction render such alienation illegal and expose the party to the consequences provided under Order XXXIX Rule 2A and Rule 11 CPC, in addition to the punishment for contempt of Court. Hence, such registration of notices of pending suit, though desirable as an additional safeguard, cannot be preferable or substituted to clamping an order of injunction on adversary.
iii). Though it may not be inappropriate for the Court to expect the plaintiff to show that the provisions of Section 52 of TP Act do not afford adequate protection, it cannot laid down as a blanket proposition of law that in each and every case, plaintiff is expected to show it as a condition precedent for grant of injunction order.
iv). Though depending on the facts of the case, the Court can consider imposition of conditions, like, seeking an undertaking that no equities would be claimed on account of sale or development of property; effecting sale only after putting transferees to notice that their rights would be subject to pending suit or requiring the parties to inform the Court promptly of creation of such interest, those conditions can be in addition to or independent of the order of injunction, but cannot be in place of or short of granting injunction.
v). In the light of the decisions of the Hon'ble Supreme Court in the case of STATE OF U.P. AND ORS. VERSUS AJAY KUMAR SHARMA AND ORS. [2015 (11) TMI 1795 - SUPREME COURT] and NEW INDIA ASSURANCE CO. LTD. VERSUS HILLI MULTIPURPOSE COLD STORAGE PVT. LTD. [2020 (3) TMI 1368 - SUPREME COURT], we answer this question to the effect that, in case of conflict between the decisions of Co-ordinate Benches, it is not the later but the earlier one in point of time, which should be followed and applied by the Subordinate Courts to the facts and circumstances of a case before it, unless, of-course, earlier decision is considered and explained in the later decision."
The Registry is directed to place this matter, as per the present assignment, before the learned Single Judge for hearing of the Appeal.
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2016 (10) TMI 1382 - ALLAHABAD HIGH COURT
Rejection of discharge application filed by revisionist - Section 401 read with Section 397 Cr.P.C. - HELD THAT:- Despite repeated query, learned counsel for the revisionist, could not point out any manifest error or otherwise illegality so as to warrant interference.
Revision dismissed.
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2016 (10) TMI 1380 - KARNATAKA HIGH COURT
Interference of police interpreting the condition imposed as restricting members of the club even from playing games of skill such as Gin rummy, with stakes - It is contended that a game of skill could be permitted to be played, with stakes - HELD THAT:- Section 176 of the Karnataka Police Act was not brought to attention and it was completely overlooked. From a reading of Section 176, it does appear that persons taking part in such games of skill could also wager.
Whether rummy, a game of cards, could be considered as a game of skill had come up for consideration before the Supreme Court. In the said judgment, in the case of STATE OF ANDHRA PRADESH VERSUS K. SATYANARAYANA & ORS. [1967 (11) TMI 109 - SUPREME COURT], the court has held that rummy is not entirely a game of chance but is 'preponderantly' a game of skill.
In a further judgment in DR. KR. LAKSHMANAN VERSUS STATE OF TAMIL NADU [1996 (1) TMI 336 - SUPREME COURT], the Supreme Court has, while also noting the earlier judgment in K. Satyanarayana, supra, equated a game of rummy to that of chess or golf, which are pure games of skill. Therefore, it could be said that rummy is indeed a game of skill, though some element of chance is involved. Preponderantly, as held by the Supreme Court in K. Satyanarayana, rummy is a game of skill. Therefore, if the words "without stakes" are deleted from the judgment of this court, the petitioner's purpose would be served and there would be no chance of misinterpretation.
The benefit of Section 176 could then not be denied to the petitioner. Accordingly, the Review Petition is allowed.
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2016 (10) TMI 1376 - ORISSA HIGH COURT
Seeking to quash the Technical Bid Evaluation Summary under Annexure-4 and the consequential Financial Bid Opening Summary under Annexure-5 - direction for fresh evaluation of the Bid taking into account the materials - reason for rejection of the tender of the petitioner was communicated to the petitioner before the financial bids were opened, or not - time to produce the renewed licence should have been granted to the petitioner before rejecting his tender, or not.
While rejecting the bid of the petitioner, it has to be seen whether any reason has been assigned by the authority or not? - HELD THAT:- Reason means the faculty of rational thought rather than some abstract relationship between propositions and by this faculty, it is meant the capacity to make correct inferences from propositions, to size up facts for what they are and what they imply, and to identify the best means to some end, and, in general, to distinguish what we should believe from what we merely do believe. The importance of giving reason, it reveals a rational nexus between facts considered and conclusions reached.
In UNION OF INDIA VERSUS. MOHAN LAL CAPOOR & OTHERS [1973 (9) TMI 99 - SUPREME COURT] and in UMA CHARAN VERSUS STATE OF MADHYA PRADESH AND ANR. [1981 (8) TMI 235 - SUPREME COURT], the apex Court held reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject-matter for a decision whether it is purely administrative or quasi-judicial and reveal a rational nexus between the facts considered and conclusions reached. The reasons assure an inbuilt support to the conclusion and decision reached. The fair play requires recording of germane and relevant precise reasons when an order affects the right of a citizen or a person irrespective of the fact whether it is judicial, quasi-judicial or administrative. The recording of reasons is also an assurance that the authority concerned applied its mind to the facts on record and it is vital for the purpose of showing a person that he is receiving justice.
Considering the meaning of "reasons" and its essentiality in passing the orders and applying the same to the present context, it reveals from the additional affidavit filed by the State-opposite parties 1 and 2 that the documents giving reasons have been attached as Annexure-A to the said affidavit. With the writ petition, the petitioner has filed only the first page of the summary uploaded on the website, in which it was merely stated that the tender of the petitioner has been rejected on technical grounds - On perusal of the summary along with the minutes, it is clear that the same was signed by the authorized personnel at 6.14 P.M. on 15.05.2015 and both the documents were uploaded on the same date at 6.15 P.M., which is not denied by the learned counsel for the petitioner.
The first contention of the learned counsel for the petitioner that no reason for rejecting the tender documents of the petitioner was given, does not have merit as clear reason that the petitioner had not furnished valid registration certificate as an 'A' Class Contractor, has been assigned in the minutes uploaded on the website.
Time ought to have been given to the petitioner to furnish the renewed certificate of registration - HELD THAT:- Unless such time was required to be given in the terms and conditions of the Tender Documents, the opp. parties could not have given such opportunity to the petitioner. All the documents were required to be filed along with the tender papers, and in case had any extra time been given to the petitioner for furnishing the renewed licence, the same would have amounted to deviation of the terms of the tender conditions. As such, the opp. parties cannot be said to have faulted in not giving time to the petitioner to furnish such certificate.
The reasons for rejection of the tender of the petitioner had duly been communicated and there was no necessity for giving any time to the petitioner to produce the document which was lacking, i.e., the registration certificate in the present case - there are no illegality or irregularity has been committed by the authority so as to call for interference with the order impugned in Annexures-4 and 5 - petition dismissed.
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2016 (10) TMI 1375 - GUJARAT HIGH COURT
Perjury - petitioner had suppressed her true income - whether it is expedient in the interest of justice that such prosecution would be necessary? - HELD THAT:- This Court notices that the Court has elaborately discussed the law and applied the said law to the facts to hold that the petitioner has not stated the correct facts on oath. She has stated that she was doing household work and has no source of income while her income is Rs.40,000/per month from the business. She has of course, revealed that she has received sum of Rs. 4 lakhs from the earlier marriage. With regard to the income tax returns, she is found to have given false evidence. With regard to the fixed deposit and the amount that has been credited in her FDR, she stated that she has no knowledge with regard to her accounts in Central Bank of India and Rajkot Cooperative Bank. The husband also examined the witness, who was Inspector in the IncomeTax Department, wherein she submitted her personal income and her incometax returns have been brought on the record to indicate that from the year 201112 she has income from business at Rs.1,48,251/. The business profit was worth Rs.1,84,251/- - The Court on noticing that she was getting sufficient income from the fixed deposit receipt and yet has not admitted in the evidence produced by her stating that she has no source of income, had directed the initiation of the prosecution under section 195 read with section 340 of the Code of Criminal Procedure.
As can be noticed from the chronology of events and the evidence that has been adduced before the Court concerned, it is certain that the injury which could have been sustained by the other side has not resulted on account of this alleged falsehood because respondent No.2 could find out at an appropriate time the details which he has furnished before the Court. So far as its impact on the administration of justice is concerned, this Court has no reason to interfere as often it is found that the litigants coming before the Court chose to speak blatant lies and do so with complete impudence - Laws which are otherwise in favour of the distressed wife when are sought to be misused by declaring completely incorrect facts and also by suppressing the material aspect, the trial Court at the time of considering the case found that the impact on the administration of justice would make it expedient for it to direct the prosecution.
Petition disposed off.
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2016 (10) TMI 1366 - SUPREME COURT
Refusal to condone a period of 65 days in re-filing the objections Under Section 34 of the Arbitration and Conciliation Act, 1996 - HELD THAT:- Section 34(3) has no Application in re-filing the Petition but only applies to the initial filing of the objections Under Section 34 of the Act. It was submitted on behalf of the Respondent that Rule 5(3) of the Delhi High Court Rules states that if the Memorandum of Appeal is filed and particular time is granted by the Deputy Registrar, it shall be considered as fresh institution. If this Rule is strictly applied in this case, it would mean that any re-filing beyond 7 days would be a fresh institution. However, it is a matter of record that 5 extensions were given beyond 7 days. Undoubtedly, at the end of the extensions, it would amount to re-filing.
Also, Petitioner has offered an explanation for the delay for the period after the extensions.
It is deemed appropriate in the interest of justice to set aside the impugned Order - appeal allowed.
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2016 (10) TMI 1362 - SUPREME COURT
Direction issued to restrict the selection of Assistant Prosecuting Officers only to the number of posts that were advertised - HELD THAT:- The Appellants participated in the selection which was initially for 38 posts which later increased to 74 posts. They could not be appointed due to the judgment of the High Court which directed the selection to be only for 38 posts. In view of there being no fault on the part of the Appellants, we examined whether we could exercise our judicial discretion to direct their appointments. We realise that any such direction given by us for their appointments would be contrary to the Rules. Judicial discretion can be exercised by a Court only when there are two or more possible lawful solutions. In any event, Courts cannot give any direction contrary to the Statute or Rules made thereunder in exercise of judicial discretion.
The selection pursuant to the advertisement dated 19.09.2009 should be confined only to posts that were advertised, the additional posts that were created after the expiry of the recruitment year shall be filled up by issuance of an advertisement afresh. In view of the shortage of Assistant Prosecuting Officers in the State of Uttarakhand, we direct the authorities to expedite the process of selection.
Appeal dismissed.
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2016 (10) TMI 1357 - SUPREME COURT
Entitlement of temporary employees to the minimum of the pay-scale, as was being paid to similarly placed regular employees - whether temporarily engaged employees (daily-wage employees, ad-hoc appointees, employees appointed on casual basis, contractual employees and the like), are entitled to minimum of the regular pay-scale, alongwith dearness allowance (as revised from time to time) on account of their performing the same duties, which are discharged by those engaged on regular basis, against sanctioned posts?
HELD THAT:- This Court held, that the concept of equality implies and requires equal treatment, for those who are situated equally. Comparison between unequals is not possible. Since the workers who had approached this Court had failed to establish, that they were situated similarly as others, they could not be extended benefits which were being given to those, with whom they claimed parity. And therefore, since there were no other employees comparable to the employees working in the Grih Kalyan Kendras, this Court declined to entertain the prayer made by the Petitioners.
This Court, while adjudicating upon the controversy arrived at the conclusion, that the High Court had granted relief to the Respondents on the assumption that two vacant posts of Assistant Engineer were utilized for appointing the Respondents. The above impression was found to be ex-facie fallacious, by this Court. This Court was of the view, that the orders of appointment issued to the Respondents, did not lead to the inference, that they were appointed against the two vacant posts of Assistant Engineer. Despite the above, this Court held, that the decision of the Appellant Corporation to effect economy by depriving the Respondents even, the minimum of pay-scale, was totally arbitrary and unjustified. This Court expressed the view, that the very fact that the Respondents were engaged on a consolidated salary of ₹ 2000 per month, while the prescribed pay-scale of the post of Assistant Engineer in the other branches was ₹ 2200-4000, and that of Junior Engineer was ₹ 1600-2660, was sufficient to infer, that both the Respondents were engaged to work against the posts of Assistant Engineer.
There is no room for any doubt, that the principle of 'equal pay for equal work' has emerged from an interpretation of different provisions of the Constitution. The principle has been expounded through a large number of judgments rendered by this Court, and constitutes law declared by this Court. The same is binding on all the courts in India, Under Article 141 of the Constitution of India. The parameters of the principle, have been summarized. The principle of 'equal pay for equal work' has also been extended to temporary employees (differently described as work-charge, daily-wage, casual, ad-hoc, contractual, and the like). The legal position, relating to temporary employees, has been summarized by us, in paragraph 44 hereinabove. The above legal position which has been repeatedly declared, is being reiterated, yet again.
It is fallacious to determine artificial parameters to deny fruits of labour. An employee engaged for the same work, cannot be paid less than another, who performs the same duties and responsibilities. Certainly not, in a welfare state. Such an action besides being demeaning, strikes at the very foundation of human dignity. Any one, who is compelled to work at a lesser wage, does not do so voluntarily. He does so, to provide food and shelter to his family, at the cost of his self respect and dignity, at the cost of his self worth, and at the cost of his integrity. For he knows, that his dependents would suffer immensely, if he does not accept the lesser wage. Any act, of paying less wages, as compared to others similarly situate, constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation - in view of the law declared by this Court Under Article 141 of the Constitution of India, the principle of 'equal pay for equal work' constitutes a clear and unambiguous right and is vested in every employee-whether engaged on regular or temporary basis.
There is, therefore, no room for any doubt, that the duties and responsibilities discharged by the temporary employees in the present set of appeals, were the same as were being discharged by regular employees. It is not the case of the Appellants, that the Respondent-employees did not possess the qualifications prescribed for appointment on regular basis. Furthermore, it is not the case of the State, that any of the temporary employees would not be entitled to pay parity, on any of the principles summarized by us in paragraph 42 hereinabove. There can be no doubt, that the principle of 'equal pay for equal work' would be applicable to all the concerned temporary employees, so as to vest in them the right to claim wages, at par with the minimum of the pay-scale of regularly engaged Government employees, holding the same post.
All the concerned temporary employees, in the present bunch of cases, would be entitled to draw wages at the minimum of the pay-scale (-at the lowest grade, in the regular pay-scale), extended to regular employees, holding the same post - Application disposed off.
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2016 (10) TMI 1353 - DELHI HIGH COURT
Effect of depriving the Petitioners and their representatives of the exercise of their rights to have an absolute say on the hiring and dismissal of employees of the Society - seeking direction to Respondents through their directors, officers, agents, representatives and employees to cease and desist from interfering with any aspect of the hiring and dismissal rights of the Petitioners - payment of salaries to Dr. C.S. Sharma and/or take necessary steps to effect prompt payments of salaries to any other employees hired by the Society - seeking restraint on Respondents No. 1 and 2 including through their affiliates, related parties, directors, officers, agents, representatives and employees from taking any steps whatsoever in contravention of clause 3.1.2 of the Share Purchase Agreement.
Interpretation of statute - Section 26 of the Amendment Act - Whether the provisions of the Amendment Act are applicable to the present proceedings? - HELD THAT:- Section 26 expressly provides that nothing in the Amendment Act would apply to pending arbitral proceedings. The proposal that the Amendment Act shall apply only to fresh arbitrations was accepted as is plainly evident from the language of the latter part of Section 26 of the Amendment Act. No. specific provision was enacted with regard to the applicability of the amendment to "fresh applications". However, it was enacted that the Amendment Act would come into force from 23.10.2015 and therefore would be plainly applicable to the proceedings instituted after the said date.
Whether by virtue of the proviso introduced in Section 2(2) of the Act, recourse to Section 9 of the Act is available in relation to the arbitral proceedings? - HELD THAT:- In the present case, there is no dispute as to the law governing the arbitration. Clause 15.1 of the Agreement expressly provides that the laws as applicable in Singapore will apply to the entire contract. Further the seat of the arbitration is also in Singapore. The petitioners had also applied under Section 12(6) of the International Arbitration Act, (IAA) - the law as applicable to the International Arbitration in Singapore - for the judgment in terms of the order passed by the Arbitral tribunal.
Whether an agreement between the parties that a foreign law would be applicable to the arbitration, implicitly excludes the applicability of Section 9 of the Act? - HELD THAT:- The very purpose of amending Section 2(2) of the Act was to enable a party to approach the courts in India for interim relief in respect of the arbitral proceedings held or to be held outside India - The Article 17-J of the Model Law specifically provides that the Court shall have the same powers for issuing interim measures in relation to the arbitral proceedings irrespective of the seat of such arbitral proceedings. In terms of the UNCITRAL Model Law, arbitral proceedings are governed by the law as applicable at the seat of the arbitration; nonetheless, it would be open for the Courts to issue interim orders even in respect of the arbitral proceedings that are held outside the State. The object of amending Section 2(2) of the Act is inter alia to incorporate such provision in the Act.
The SIAC Rules are clearly in conformity with the UNCITRAL Model Law and permit the parties to approach the Court for interim relief. As pointed out earlier, UNCITRAL Model Law expressly provides for courts to grant interim orders in aid to proceedings held outside the State. And, the proviso to Section 2(2) of the Act also enables a party to have recourse to Section 9 of the Act notwithstanding that the seat of arbitration is outside India. Thus, the inescapable conclusion is that since the parties had agreed that the arbitration be conducted as per SIAC Rules, they had impliedly agreed that it would not be incompatible for them to approach the Courts for interim relief. This would also include the Courts other than Singapore. It is relevant to mention that IAA is based on UNCITRAL Model Law and SIAC Rules are also complimentary to IAA/UNCITRAL Model law - the contention that the parties by agreeing that the proper law applicable to arbitration would be the law in Singapore have excluded the applicability of Section 9 of the Act.
Whether the petitioner can approach this Court for an interim relief considering that it has already approached the Arbitral Tribunal in Singapore and thereafter, also obtained a judgment in terms of the interim order from the Singapore High Court? - HELD THAT:- It is relevant to mention that Article 17H of the UNCITRAL Model Law contains express provisions for enforcement of interim measures. However the Act does not contain any provision pari materia to Article 17H for enforcement of interim orders granted by an Arbitral Tribunal outside the India. Section 17 of the Act is clearly not applicable in respect of arbitral proceedings held outside India - the emergency award passed by the Arbitral Tribunal cannot be enforced under the Act and the only method for enforcing the same would be for the petitioner to file a suit.
A party seeking interim measures cannot be precluded from doing so only for the reason that it had obtained a similar order from an arbitral tribunal. Needless to state that the question whether the interim orders should be granted under section 9 of the Act or not would have to be considered by the Courts independent of the orders passed by the arbitral tribunal. Recourse to Section 9 of the Act is not available for the purpose of enforcing the orders of the arbitral tribunal; but that does not mean that the Court cannot independently apply its mind and grant interim relief in cases where it is warranted - It is relevant to note that the provisions under Article 17 I (2) of the Model Law, the court enforcing an interim order passed by an Arbitral Tribunal in prescribed form undertakes a review of the substance of interim measure the Model Law. To that extent, a Court while examining a similar relief under Section 9 of the Act would be unfettered by the findings or the view of the Arbitral Tribunal.
The present petition is maintainable.
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2016 (10) TMI 1352 - SUPREME COURT
Constitutional validity of Section 2(q) of the Protection of Women from Domestic Violence Act, 2005 - Domestic violence - protection of the female sex generally - what exactly is the object sought to be achieved by the 2005 Act? - HELD THAT:- A cursory reading of the statement of objects and reasons makes it clear that the phenomenon of domestic violence against women is widely prevalent and needs redressal. Whereas criminal law does offer some redressal, civil law does not address this phenomenon in its entirety. The idea therefore is to provide various innovative remedies in favour of women who suffer from domestic violence, against the perpetrators of such violence - What is of great significance is that the 2005 Act is to provide for effective protection of the rights of women who are victims of violence of any kind occurring within the family. The preamble also makes it clear that the reach of the Act is that violence, whether physical, sexual, verbal, emotional or economic, are all to be redressed by the statute. That the perpetrators and abettors of such violence can, in given situations, be women themselves, is obvious.
A conspectus of these judgments also leads to the result that the microscopic difference between male and female, adult and non adult, regard being had to the object sought to be achieved by the 2005 Act, is neither real or substantial nor does it have any rational relation to the object of the legislation. In fact, as per the principle settled in the Subramanian Swamy judgment [2014 (5) TMI 783 - SUPREME COURT], the words "adult male person" are contrary to the object of affording protection to women who have suffered from domestic violence "of any kind" - the words "adult male" before the word "person" in Section 2(q) are struck off, as these words discriminate between persons similarly situate, and far from being in tune with, are contrary to the object sought to be achieved by the 2005 Act.
Having struck down these two words from the definition of "Respondent" in Section 2(q), the next question that arises is whether the rest of the Act can be implemented without the aforesaid two words. This brings us to the doctrine of severability - a doctrine well-known in constitutional law and propounded for the first time in the celebrated R.M.D. Chamarbaugwalla v. Union of India [1957 (4) TMI 56 - SUPREME COURT]. This judgment has been applied in many cases. It is not necessary to refer to the plethora of case law on the application of this judgment, except to refer to one or two judgments directly on point.
An application of the severability principle would make it clear that having struck down the expression "adult male" in Section 2(q) of the 2005 Act, the rest of the Section is left intact and can be enforced to achieve the object of the legislation without the offending words. Under Section 2(q) of the 2005 Act, while defining 'Respondent', a proviso is provided only to carve out an exception to a situation of "Respondent" not being an adult male. Once 'adult male', is struck off, the proviso has no independent existence, having been rendered otiose.
Having struck down a portion of Section 2(q) on the ground that it is violative of Article 14 of the Constitution of India, it is not deemed necessary to go into the case law cited by both sides on literal versus purposive construction, construction of penal statutes, and the correct construction of a proviso to a Section. None of this becomes necessary in view of our finding above.
It is declared that the words "adult male" in Section 2(q) of the 2005 Act will stand deleted since these words do not square with Article 14 of the Constitution of India. Consequently, the proviso to Section 2(q), being rendered otiose, also stands deleted - appeal disposed off.
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2016 (10) TMI 1347 - GUJARAT HIGH COURT
Maintainability of petition - availability of alternative efficacious remedy available by way of preferring appeal before the Debts Recovery Appellate Tribunal - It is submitted that to avoid payment of Court Fees of statutory appeal, writ is filed - requirement to comply with the Stamp Act - whether the learned Tribunal has any jurisdiction to issue directions with respect to the loan documents and the Assignment Agreement namely directing the Registry to send the copy of the loan documents available in the case record to the Collector of Stamp, Gujarat and to send the copy of the Assignment Agreement to the Chief Controlling Revenue Authority, Gandhinagar and directing the Collector of Stamp, Gujarat to call upon the original documents and directing the Chief Controlling Revenue Authority to call upon the original Assignment Agreement dated 28.03.2014 from ARCIL for further process?
HELD THAT:- Identical question came to be considered by the Hon’ble Supreme Court in the case of CHILAKURI GANGULAPPA VERSUS REVENUE DIVISIONAL OFFICER, MADANPALLE AND ORS. [2001 (3) TMI 1069 - SUPREME COURT]. In the said decision the Hon’ble Supreme Court has observed and held that the Court has powers to admit the document in evidence if the party producing the same would pay the stamp duty together with a penalty amounting to ten times the deficiency of the stamp duty. It is further observed that when the Court chooses to admit the document on compliance of such condition the Court need forward only a copy of the document to the Collector, together with the amount collected from the party for taking adjudicatory steps. But if the party refuses to pay the amount aforesaid the Collector has no other option except to impound the document and forward the same to the Collector and on receipt of the document through either of the said avenues the collector has to adjudicate on the question of the deficiency of the stamp duty - In the present case none of the procedure as required to be followed under the provisions of the Stamp Act more particularly contemplated under Sections 33, 34, 37 and 39 has been followed.
In the present case, original of neither the loan documents nor the Assignment Agreement dated 28.03.2014 are on record. Considering the provisions of the Stamp Act reproduced, production of the original documents are prerequisite - Under the circumstances, directions issued by the learned Tribunal to the Stamp Authorities to impound the instruments and adjudicate the stamp duty thereon, are wholly without jurisdiction. The learned Tribunal has no jurisdiction whatsoever to issue such directions to the Collector of Stamp, Gujarat and the Chief Controlling Revenue Authority.
Considering the facts of the case on hand and the manner in which the learned Tribunal has dismissed the original application at this stage on the aforesaid grounds i.e. on the ground that the loan documents as well as the Assignment Agreement dated 28.03.2014 are insufficiently stamped and therefore, not admissible in evidence and that too without following any procedure as required under the provisions of the Stamp Act, impugned orders dismissing the original applications on the aforesaid grounds are wholly without jurisdiction and cannot be sustained - this is a fit case to exercise powers under Articles 226/227 of the Constitution of India.
Locus of AIRCL to maintain the original application for recovery of its dues - whether in the facts and circumstances of the case the learned Tribunal is justified in dismissing the original application on the ground that as the Assignment Agreement dated 28.03.2014 is in favour of the ARCILASTIV Trust and in favour of the ARCIL as a Trustee of the aforesaid Trust? - HELD THAT:- When there are serious contentious issues with respect to locus of ARCIL to maintain / continue to maintain the suit before the learned Tribunal for recovery of the dues under the Assignment Agreement dated 28.03.2014 visavis under the Securitization Act as well as RDB Act, the learned Tribunal has materially erred in dismissing the original applications on the aforesaid ground and that too at this stage and the learned Tribunal ought to have permitted the parties to raise the aforesaid issues at appropriate stage of trial and the learned Tribunal ought to have considered the aforesaid issues at appropriate stage but not at this stage and ought not to have dismissed the applications at the threshold - the impugned orders passed by the learned Tribunal dismissing the original applications on the aforesaid ground at this stage cannot be sustained and the same deserves to be quashed and set aside.
This is a fit case to exercise powers under Articles 226/227 of the Constitution of India and the present petitions are not required to be dismissed on the ground of availability of alternative statutory remedy by way of appeal before the learned Debts Recovery Appellate Tribunal more particularly when the issues involved in the petitions are questions of law - Application allowed.
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2016 (10) TMI 1342 - SUPREME COURT
Grant of probate on the basis of a Will claimed to be the last Will - caveatable interest - HELD THAT:- Chapter XXXV of the Rules incorporate provisions relating to testamentary and intestate jurisdiction. Rule 1 defines 'non-contentious business' to include the business of obtaining probate and letters of administration (with or without the will annexed, and whether general, special or limited) where there is no contention as to the right thereto, as also in contentious cases where the contest is terminated and also includes the business of lodging caveats against the grant of probate or letters of administration - A careful reading of Rules 28 and 30 makes it abundantly clear that before the proceedings are numbered as a suit by orders of a Judge for being tried as a suit as per provisions of the Code of Civil Procedure, the Court may take up as a preliminary issue, whether the caveator has a caveatable interest, if such an application is filed before the Court by the Petitioner. Clearly the preliminary issues are triable before the proceedings are treated as a full-fledged suit under order of the Judge concerned.
It is deemed proper to point out that although the caveator Yasheel Jain did not file the original Will, the Division Bench has noted that he has filed a photocopy of the prior Will allegedly executed by the testator and has also produced the registered envelope through which such copy was sent to him by the testator along with the forwarding letter written by him. Upon such materials, the Division Bench recorded its prima facie satisfaction that the caveat should not be discharged. In the case of caveat by Respondent Malati, the Division Bench noted the citations in the Will propounded by the Appellant showing Malati to be only a maid servant but on the basis of totality of facts and circumstances it rightly came to the conclusion that a person by merely making a contrary statement in the Will cannot change a real relationship if it actually existed and hence at least arguable case in favour of claim of Malati as regards her relation with the testator has been established and hence she deserves to be permitted to contest the probate proceeding.
Appeal dismissed.
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2016 (10) TMI 1337 - SUPREME COURT
Interpretation and application of Paragraph 7 of the DPCO 1995 and Paragraphs 8 and 9 of the DPCO 1995 - flexibility available to the Central Government in fixing the retail price and ceiling price of formulations and the rigidity expected by the statutory Order - Validity of Notification dated 13th July, 1999 issued by the Central Government under Paragraph 7 of the Drugs (Prices Control) Order, 1995 - notifications issued by the Central Government on 12th July, 2000, 12th July, 2001, 12th July, 2002 and 11th July, 2003 re-notifying the norms prescribed by notification dated 13th July, 1999 issued under Paragraph 7 of the DPCO 1995 - inclusion of the bulk drug Diosmin in the First Schedule to the DPCO 1995 - ceiling price fixed by the Central Government in the notification dated 20th July, 1998 of the Diosmin formulation - ceiling price of the Diosmin formulation could have been fixed under Paragraph 9 of the DPCO 1995 without first fixing the maximum sale price of the bulk drug Diosmin under Paragraph 3 of the DPCO 1995 - Alternative remedy.
HELD THAT:- The DPCO 1995 came into operation on 6th January, 1995. Ordinarily therefore the first notification under Paragraph 7 thereof ought to have been issued in July 1995, or soon thereafter. Perhaps the Masood Committee was constituted on 24th April, 1995 for this purpose and initially it was required to submit its Report on or before 30th June, 1995 but time was extended till 31st August, 1995 - Whatever be the position, the fact is that the Central Government did not notify the norms on a yearly basis for four years 1995-1996, 1996-1997, 1997-1998 and 1998-1999. We are really concerned with the default for this period. The NPPA was set up on 29th August, 1997 and the Jharwal Committee was set up on 8th October, 1998 more than two years and three years respectively after the DPCO 1995 was issued. The purpose of setting up the Jharwal Committee was to revise the norms applicable since 15th July, 1993. Pursuant to the Report of the Jharwal Committee the Central Government did issue a notification on 13th July, 1999 under Paragraph 7 of the DPCO 1995. On the issue under consideration, we are presently not concerned with the period 1999 onwards till 2004.
Paragraph 7 of the DPCO 1995 gives the formula for arriving at the retail price of a formulation. The application of the formula is undoubtedly mandatory and the Central Government cannot contend that the retail price of a formulation can be fixed de hors the formula. The question is whether the norms mentioned in Paragraph 7 of the DPCO 1995 are required to be prescribed every year even if there is no perceived qualitative or quantitative change in them - The purpose of determining and prescribing the norms every year is limited to the requirement of fixing the retail price of formulations in terms of the formula given in Paragraph 7 of the DPCO 1995. The Central Government set up the Masood Committee in April 1995 precisely for this purpose. However its work was stymied by the drug industry through its non-cooperation.
There are several reasons that can be culled out from the Report of the Masood Committee for the Central Government not determining and prescribing the norms in 1995 and thereafter for the next three years. Firstly, according to the Masood Committee the drug industry had been provided a sufficient cushion by the acceptance of the recommendations of the Sankaran Committee. Under the circumstances continuing with the norms for conversion cost and packing charges prescribed under the DPCO 1987 would not have disadvantaged the manufacturers/formulators in any manner - Secondly, the packing material ceilings had been recently upwardly revised from 7th July, 1994 and the manufacturers/formulators could take advantage of the cost of packing material on actuals. Surely, this was beneficial to them - Thirdly, according to the Masood Committee with high production levels and better capacity utilization as well as new technological processes, the process loss on raw materials and packing material ought to have come down. But since the drug industry did not provide necessary information through the questionnaire sent to the drug industry and the companies, an ad hoc reduction in the existing norm for process loss fixed by the Sankaran Committee was not recommended by the Masood Committee - Fourthly, the Masood Committee noted that there was a decrease in total formulation activity coming under price control from 70% under the DPCO 1987 to 50% under the DPCO 1995 and uniform MAPE of 100% under the DPCO 1995 as against 75% and 100% MAPE under the DPCO 1987. Even this was advantageous to the manufacturers/formulators.
We may recall that the Sankaran Committee had noted that the norms for cost of packing material were not prescribed from 1979 onward. Far from objecting to this, the drug industry had itself requested the Sankaran Committee to permit the cost of packing material to be taken on actuals. The Sankaran Committee accepted this suggestion while taking into account the inherent difficulty in prescribing any norm for cost of packing materials - The notification dated 15th July, 1993 prescribed norms only for conversion cost and packing charges. No manufacturer or formulator made any grievance or complaint regarding the failure of the Central Government to prescribe the cost of packing material as a norm.
The situation has not changed at all over the years. The silence of the drug industry continued as is evident from the fact that even 15 years later a notification was issued by the Central Government on 11th August, 2004 under Paragraph 7 of the DPCO 1995 prescribing the norms for conversion cost, packing charges and process loss of raw materials (other than packing materials in conversion and packing) and process loss of packing materials in packaging - but not for cost of packing material as a norm. Despite this, we were told by learned Counsel appearing for the parties that there has been no dispute about price fixation since 2004 due to the absence of a norm for cost of material - it does appear to us that the drug industry was content with being allowed to take the cost of packing material on actuals rather than insisting on the Central Government issuing a notification prescribing the norms for cost of packing material.
Thus, the ceiling price fixed by the BICP on 7th July, 1994 and thereafter revised by the NPPA in February 1998 in respect of packing materials has not been questioned (let alone challenged) by anybody.
The action of a repository of power is also amenable to judicial review if it is contrary to or violates the mandatory requirement of a subordinate legislation. Therefore, if the Central Government does not adhere to the formula given in Paragraph 7 of the DPCO 1995 and fixes the retail price or ceiling price of formulations without following the formula laid down, the notification issued by the Central Government under Paragraph 8 or Paragraph 9 of the DPCO 1995 (as the case may be) is liable to quashed as being contrary to law. However, no instance has been pointed out to us compelling us to use our power of judicial review and quash the notifications under consideration.
Alternative remedy - HELD THAT:- We have no doubt that if any manufacturer or formulator had taken the trouble of preferring a revision or review application, all necessary material would have been made available to the complainant for an effective representation. We are satisfied that none of the parties before us was precluded by circumstances from preferring a revision or review for corrective measures in relation to the retail price or ceiling price of any particular formulation - in fact, we are told by the learned Solicitor General that some of them did - Strictly speaking, in view of the availability of an alternative and efficacious remedy available under the DPCO 1995 read with the decision of this Court in Cynamide India Ltd. the writ petitions filed by the manufacturers and formulators before us ought not to have been entertained by the concerned High Courts, but we leave it at that.
In matters where public interest is involved, the Court ought to be circumspect in granting any interim relief. The consequence of an interim order might be quite serious to society and consumers and might cause damage to public interest and have a long term impact. We make it clear that it is not our intention to suggest to any Court how and in what circumstances interim orders should or should not be passed but it is certainly our intention to make it known to the Courts that the time has come when it is necessary to be somewhat more circumspect while granting an interim order in matters having financial or economic implications.
Various questions raised, are answered as below:
Validity of Notification dated 13th July, 1999 issued by the Central Government under Paragraph 7 of the Drugs (Prices Control) Order, 1995 - the notification prescribed the norms for conversion cost, packing charges and process loss of raw materials (other than packing materials in conversion) and packing and process loss of packing materials in packaging - whether the notification was issued mechanically and without any application of mind or is it valid in law? - HELD THAT:- The notification is valid and that the notification was not issued mechanically or without any application of mind.
Notifications dated 12th July, 2000, 12th July, 2001, 12th July, 2002 and 11th July, 2003 issued by the Central Government under Paragraph 7 of the Drugs (Prices Control) Order, 1995 - the notifications re-notified the norms prescribed on 13th July, 1999 - whether the notification were issued mechanically, without any application of mind and without re-determining the norms every year as required by the Drugs (Prices Control) Order, 1995? - HELD THAT:- The notifications are valid and were not issued mechanically or without any application of mind and that it was not necessary to re-determine the norms every year.
Various notifications issued by the Central Government fixing the retail price or ceiling price of formulations under Paragraphs 8 and 9 (as the case may be) of the Drugs (Prices Control) Order, 1995 - whether the notifications did not determine the norm for cost of packing material as required by Paragraph 7 of the Drugs (Prices Control) Order, 1995 are valid in law? - HELD THAT:- Answered in the affirmative.
Whether fixing the retail price of a formulation under Paragraph 8 of the Drugs (Prices Control) Order, 1995 without first fixing the sale price of a bulk drug under Paragraph 3 of the Drugs (Prices Control) Order, 1995 utilized in the manufacture of a formulation is valid in law? - HELD THAT:- Answered in the affirmative.
The appeals filed by the Union of India are allowed.
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2016 (10) TMI 1314 - TELANGANA HIGH COURT
Validity of the orders passed by the Government in G.O.Ms.No.181, dated 11.7.2011 - constitution of fresh committee with the Chief Secretary as Chairperson and with some other members for the purpose of suggesting the factors to be considered while fixing or increasing the rates of tickets in various classes of Cinema Theatres - main grievance of the petitioners herein is that the rates fixed by the Government by the impugned G.O. to the areas like Corporation, Municipalities and Grampanchayats are discriminative in nature since the expenditure in all the theatres in Corporations, Municipalities and Grampanchayats is one and the same.
HELD THAT:- It is pertinent to note that there are many changed circumstances coupled with the conversion of some of the theatres to that of multi complexes by raising advanced infrastructure and by meeting the highest maintenance of theatres and in view of the same, the G.O. does not appear to be proportionate, so that it warrants revision in consonance with the changed circumstances as well as the provisions of A.P. Cinema (Regulation) Act 1955. Hence, the present G.O. challenged in the writ petitions can be set aside.
Considering the facts and circumstances of the case and the interim orders passed by this Court earlier in some of the writ petitions, this Court is of the view that the present writ petitions can be disposed of with the directions imposed:
i) G.O.Ms.No.100, Home (General.A1) Department, dated 26.4.2013 is set aside.
ii) Both the Governments are directed to constitute their respective committees headed by the respective Principal Secretaries for Home. Insofar as the other members of the Committees are concerned, it is left open to the respective Principal Secretaries for Home to choose the exhibitors, distributors and other members to participate in the committee so as to adjudicate the issues involved in all the writ petitions.
iii) While taking decision, the committees are directed to consider the welfare of the cine-goers primarily and also the grievance of the exhibitors and distributors and frame the rules in accordance with law on or before 30.3.2017; iv) If any decisions are taken and any G.O, is issued prior to 30.3.2017, the same shall become operative in nature.
iv) The petitioners-theatres are permitted to run their respective theatres by collecting their proposed fares. However, it is made clear that the petitioners shall inform to the Authorities concerned as to the ticket rates, which they intend to collect in respect of all classes till adjudication of the issues in question by the respective committees.
v) In some of the writ petitions, this Court issued interim orders permitting the petitioners therein to collect the rates as proposed in their applications, and to maintain separate account with regard to the difference amount in the rates collected by them. Those interim orders passed by this Court earlier in some of the writ petitions shall stand superseded.
Petition disposed off.
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2016 (10) TMI 1312 - GUJARAT HIGH COURT
Directions to collect the certified copies of the registration certificate from the concerned RTO - HELD THAT:- From the order dated 03.10.2016 it appears that no next date of hearing is given. The aforesaid reports are directed to be taken on record.
Before any further order is passed, at the request of Mr.Devang Vyas, learned Assistant Solicitor General of India appearing on behalf of the Union of India, S.O. to 06.10.2016.
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2016 (10) TMI 1292 - DELHI HIGH COURT
Termination of temporary licences awarded to the petitioner of on-board catering services - termination on the ground that the petitioner failed to start the catering service w.e.f. 21st September, 2016 and did not pay the security deposit and licence fee on or before 19th September, 2016 - HELD THAT:- This Court finds that since the petitioner had furnished its email address and the letters of Award dated 16th September, 2016 were communicated to the petitioner by way of email, which were admittedly received, the petitioner cannot complain of lack of communication of the three letters of Award. Consequently, it was possible for the petitioner to pay the licence fee on or before 19th September, 2016.
This Court also finds that the tender documents in the present instance itself clearly stipulated that in the event the licence fee was not paid in whole or part, the applicant would be debarred from participating in any bidding process for future projects of the respondent-IRCTC for a period of one year.
The plea for extension of time cannot be entertained as in the opinion of this Court, present proceedings cannot be used for renegotiation of contract and for fixing new dates for deposit of licence fee. In any event, if the respondent-IRCTC has wrongly debarred the petitioner, as claimed by the petitioner, then in the opinion of this Court, the petitioner would only be entitled for damages - this Court is in agreement with the contention of learned counsel for the petitioner that the punishment of debarment for a period of one year is not proportionate to the facts of the present case, especially keeping in view the fact that the petitioner has been an empanelled contractor/caterer with the Railways for more than ten years and is at the moment running five base kitchens.
The punishment of debarment of the petitioner in the peculiar facts of the present case is reduced to one month w.e.f. 28th September, 2016. The amount of ₹ 15,55,799/- deposited by the petitioner with regard to Patna Ranchi Jan Shadabdi shall be refunded to the petitioner within a period of one week - petition disposed off.
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2016 (10) TMI 1291 - SUPREME COURT
Degradation of environment on account of unauthorized construction on plot of land falling within CRZ - repair or renovation of dwelling units - whether contrary to the CRZ Policy document? - whether the structure as it existed when the Respondents moved the Tribunal complaining about violation within the CRZ area was the same structure as on 19th February, 1991 when the CRZ Policy came into being?
HELD THAT:- Any permission given contrary to those directions must be viewed as nullity and non-est, having been given in complete disregard of the directions of the High Court. Thus, the permission granted to the Appellant by GCZMA would be of no avail, as it is not consistent with the directions of the High Court.
The fact remains that the structure directed to be demolished by the Tribunal, was obviously erected after 19th February, 1991. That being an unauthorized structure within the meaning of Sub-clause (i) quoted above, could not be used for any purpose whatsoever and was required to be demolished. Therefore, the finding recorded by the Tribunal and the consequential directions given in that behalf are unassailable.
It is not necessary for us to dilate on the argument as to whether the CRZ Policy prohibits change of user of the structure which was in existence on 19th February, 1991, so as to be used as a Restaurant and Bar - no substantial question of law much less of great public importance arises for our consideration.
Appeal dismissed - decided against appellant.
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