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Indian Laws - Case Laws
Showing 41 to 60 of 69 Records
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2018 (7) TMI 2000 - MADRAS HIGH COURT
Legality and/or validity of a Look Out Circular - circumstances prevailing on the date on which the request for issuance of the Look Out Circular had been made.
HELD THAT:- The issuance of Look Out Circulars is governed by executive instructions as contained in the Office Memoranda Nos.25022/13/78-F1 dated 05.09.1979 and 25022/20/98-FIV dated 27.12.2000, as modified by Office Memorandum dated 27.10.2010. Such LOCs cannot be issued as a matter of course, but when reasons exist, where an accused deliberately evades arrest or does not appear in the trial Court. The argument of the learned Additional Solicitor General that a request for Look Out Circular could have been made in view of the inherent power of the investigating authority to secure attendance and cooperation of an accused is contrary to the aforesaid circulars and thus, not sustainable.
In view of the finding of this Court that the conditions precedent for issuance of the impugned LOC were absent, and the impugned LOC is liable to set aside on that ground, we need not go into the questions of whether an LOC could have been issued without statutory sanction, or whether the respondents concerned had jurisdiction to issue the impugned LOC. However, in our view, the Look Out Circular was issued in hot haste when the conditions precedent for issuance of such Circular did not exist. The impugned Look Out Circular is, thus, liable to be set aside.
The impugned LOC is set aside and quashed - petition allowed.
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2018 (7) TMI 1993 - SUPREME COURT
Action against the cow protection groups indulging in violence - Constitutional validity of Section 12 of the Gujarat Animal Prevention Act, 1954, Section 13 of the Maharashtra Animal Prevention Act, 1976 and Section 15 of the Karnataka Prevention of Cow Slaughter and Cattle Preservation Act, 1964 - HELD THAT:- There is no dispute that the act of lynching is unlawful but we are not concerned with any specific case since it has become a sweeping phenomenon with a far-reaching impact. It is our constitutional duty to take a call to protect lives and human rights. There cannot be a right higher than the right to live with dignity and further to be treated with humanness that the law provides. What the law provides may be taken away by lawful means; that is the fundamental concept of law. No one is entitled to shake the said foundation. No citizen can assault the human dignity of another, for such an action would comatose the majesty of law. In a civilized society, it is the fear of law that prevents crimes.
When the preventive measures face failure, the crime takes place and then there have to be remedial and punitive measures. Steps to be taken at every stage for implementation of law are extremely important. Hence, the guidelines are necessary to be prescribed.
Necessary guidelines is prescribed - Let the matters be listed on 20th August, 2018 for further directions.
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2018 (7) TMI 1967 - SUPREME COURT OF INDIA
There are no reasons to interfere with the impugned order passed by the High Court - Special Leave Petition is accordingly dismissed - pending interlocutory application also stands disposed of.
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2018 (7) TMI 1910 - DELHI HIGH COURT
Principles of natural justice - whether the proceedings before the Council that culminated in making the impugned reference can be at fault as being violative of the principles of natural justice? - Held that:- RIL can have no grievance of not being afforded sufficient opportunity to put forth its case. Representatives of RIL also attended the next conciliation meeting, which was held on 05.04.2016. On the said occasion, RIL sought further time to settle the disputes amicably. However, no further progress was made and, therefore, on 17.10.2016, the Council decided to terminate the conciliation proceedings and refer the disputes to DIAC - RIL’s contention that the impugned reference was made in violation of the principles of natural justice is wholly unmerited.
Whether the impugned reference made by the Council under Section 18(3) of the Act was without jurisdiction? - scope of micro/small enterprise - Held that:- There is no dispute that GCIL would fall within the definition of micro/small enterprise even at the material time when it had executed the contract with RIL. GCIL is a company and the services provided by GCIL are clearly services rendered by a micro/small enterprise and, therefore, GCIL, being engaged in supply of services rendered by a micro/small enterprise, would fall within the fourth category of entities that are included as a ‘supplier’: that is, a company, co-operative society, trust or a body engaged in selling goods produced by micro or small enterprises or rendering services provided by such enterprises. It is not necessary for such entities to have filed the Memorandum under Section 8(1) of the Act.
The contention that the entities falling under Section 2(n)(iii) of the Act are only those entities that source goods/services from other micro/small enterprises, is not persuasive as it is difficult to accept that an entity sourcing goods/services from a third party micro/small enterprise would be ‘supplier’ but would cease to be one if it sources the same from its undertaking.
The contention that the impugned reference is without jurisdiction is unmerited - petition dismissed.
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2018 (7) TMI 1909 - BOMBAY HIGH COURT
Wilful Defaulter - failure to make repayment of outstanding dues of the Bank - Master Circular on Willful Defaulter dated 1 st July, 2018 - principles of natural justice - Held that:- It is clear that the consequences of declaring any lender as wilful defaulter are serious in nature. It is also clear that for declaring a lender to be wilful defaulter specific finding is required to have been recorded in terms of Clasue 2.1.3 (a) to (d) as the case may be - The Master Circular also provides a mechanism to be adopted for identifying the wilful defaulter. It includes, availability of evidence of wilful default on the part of borrowing company and its promoter/ whole-time director which needs to be examined by the Identification Committee. If the Committee concludes that an event of wilful default has occurred, it is obligatory on the part of Identification Committee to issue a show cause notice to the concerned borrower and the promoter/ whole- time director calling from their submissions and after considering their submissions as may be received, an order recording the fact of wilful default has to be passed after giving reasons for the same - It is also incumbent upon the Identification Committee to give an opportunity of personal hearing to borrower & promoter / whole- time director if it feels that such opportunity is necessary. The said order of the Committee needs to be reviewed by another Committee (Review Committee) as per Clause 3(c) of the Master Circular.
Examining the present matter on the touch stone of the aforesaid provisions, we find that the Respondent Bank has failed to comply with the aforesaid mechanism provided under the Master Circular - the Respondents while declaring the Petitioners as wilful defaulter have violated the provisions contained in the Master Circular and have also acted in violation of the principles of natural justice. The impugned action which is penal in nature has been taken causing serious implication on the Petitioners without following the basis principles of natural justice.
The stand of the Bank that they are not obliged to furnish copy of the order passed by the Identification Committee cannot be sustained. Such stand if accepted would given rise to arbitrary exercise of powers as the Identification Committee may give complete go bye to the requirement of assigning reasons for declaring a party as Wilful Defaulter and also requirement of giving reasons as to why opportunity of personal hearing would not be necessary.
The impugned orders by which the Petitioners have been declared wilful defaulter has been set aside - However, the Respondents are at liberty to take fresh steps against the Petitioners if they are so advised - petition allowed.
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2018 (7) TMI 1885 - CALCUTTA HIGH COURT
Appointment of the petitioner in the category of died-in-harness - financial hardship - rejection of appointment of the petitioner on the basis that the income of the family of the deceased was more than the initial gross salary of the Group - "D" staff at the material point of time - Held that:- In the case of Shashank Goswami [2012 (5) TMI 810 - SUPREME COURT OF INDIA], the Apex Court had deliberated on the matter at hand and had come to a conclusion that the appointment on compassionate grounds cannot be claimed as a matter of right.
The Supreme Court, in the case of Sundeep Kumar Bafna -v- State of Maharashtra [2015 (8) TMI 724 - SUPREME COURT], held that when two mutually irreconcilable decisions by the Supreme Court are cited at the Bar, the High Court should follow the view laid down by the earlier judgement as the latter judgement which was delivered without consideration of the previously pronounced judgement by a Bench of co-equal or larger strength should be read as per incuriam.
In the instant matter, it is to be noted that the District Inspector had rejected the application of the petitioner on the basis that the family pension received by the petitioner is exceeding the salary of the Group D staff post at the relevant point of time. This fact remains undisputed and the petitioner has not challenged the validity of the Rules, 2009 either. It logically follows that the petitioner is bound by these Rules, 2009 and has to be eligible for appointment in consonance with the Rules, 2009. The petitioner cannot claim appointment on compassionate grounds if he is ineligible to receive such appointment by the Rules, 2009 - In order to compute family income, the D.I. of Schools considered the provisions contained in Schedule V and, more importantly, the explanation that categorically defines the expression 'financial hardship' (provided above). The impugned order passed by the D. I. of Schools is in accordance with the definition of 'financial hardship'.
There are no reason to interfere with the order passed by the D.I. of Schools, which is in accordance with Schedule V of the Rules, 2009 - application dismissed.
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2018 (7) TMI 1873 - CALCUTTA HIGH COURT
Enforcement of a foreign award - Section 48 of the Arbitration and Conciliation Act - Held that:- It cannot be said that the award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration. It has to be remembered that in spite of repeated opportunity given to the petitioner to participate in the arbitration proceeding the petitioner has avoided participation and cannot be allowed to raise objection with regard to the enforcement of the award on any other grounds not covered under Section 48 of the Arbitration and Conciliation Act.
It is a settled law that interpretation of the contract and appreciation of the evidence by the arbitral tribunal cannot be reopened by arguing that the foreign award is contrary to the contract and, therefore, its enforcement would offend public policy of India. A party who has consciously and deliberately avoided a proceeding knowing fully well that the result of the proceeding may be adverse to its interest cannot complain of violation of natural justice. The petitioner was under no disability and nothing has prevented the petitioner to file its statement of defence along with documents. The petitioner is in effect seeking a review of the foreign award on merit which is not permitted in this proceeding.
Even under the domestic award, a possible view by the arbitrator on acts has necessarily to pass muster as the arbitrator is the ultimate master of the quantity and quality of evidence to be relied upon when he delivers is arbitral award. Thus, an award based on little evidence or on evidence which does not measure up in quality to a trained legal mind would not be held to be invalid on this score. Once it is found that the arbitrators approach is not arbitrary or capricious, and then he is the last word on facts.
Appeal dismissed with costs.
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2018 (7) TMI 1872 - SC ORDER
Grant of Interim Bail - entitlement to regular bail - Held that:- It is informed that the petitioner/Mr. Pradeep Garg in SLP(Crl.)No. 2513/2018 had already deposited the said amount. Interim bail granted to both the petitioners is thus converted into regular bail - SLP disposed off.
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2018 (7) TMI 1860 - SC ORDER
Quietus from litigation - the cheque amount has already been paid and it is acknowledged by the respondent - Section 138 of the Negotiable Instruments Act, 1881 - Held that:- For doing complete justice the whole litigation should be given a quietus, subject to appropriate terms - the conviction and sentence imposed on the appellant is set aside - appeal allowed.
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2018 (7) TMI 1827 - SC ORDER
Validity of Public Interest Litigation based on some newspapers reports - Held that:- This petition is filed only on the basis of some newspapers reports which cannot be the basis for filing a Public Interest Litigation - petition is dismissed at this stage.
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2018 (7) TMI 1799 - DELHI HIGH COURT
Cheque bounced - Maintainability of Complaint - case of petitioner is that the complainant, who has filed the complaint, was neither the payee of the subject cheques nor the holder in the due course of the subject cheques - Held that:- It is an admitted position that the landlord of the property is Friends Motels Pvt. Ltd. The payee in the subject cheques is also Friends Motels Pvt. Ltd. The complaint does not state as to how the complainant Mr. Arun Dwivedi has become the holder in due course or is entitled to receive the amount payable in the cheques - There is no further averment as to how a presumption under 139 of the Act would arise in favour of the complainant. Even on the cheques, there is no endorsement that the same were negotiated/indorsed in favor of the complainant.
The Complainant is neither the payee nor the holder in due course of the subject cheques and thus not entitled to either issue the statutory notice or file the complaint under section 138 of the Act. Since no demand was made by the payee or holder in due course, of the subject cheques, by issuance of a statutory notice under section 138, the petitioner has not committed any offence under section 138 of the Act. Since no complaint has been filed by the either the payee or the holder in due course, the court could not have taken cognizance of the alleged offence under section 142 of the Act.
The petitioner was entitled to a discharge under Section 251 Cr.P.C., as the basic ingredients of Section 138 of the Act are not satisfied - petition allowed - decided in favor of petitioner.
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2018 (7) TMI 1642 - BOMBAY HIGH COURT
Adjournment of time - paucity of time - Held that:- On account of paucity of time the matter stand adjourned to 25/07/2018 as per CMIS. If ad-interim relief is granted and is operative till today, the same will operate till the next date.
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2018 (7) TMI 1602 - DELHI HIGH COURT
Dishonor of cheque due to insufficiency of funds - Section 138 of the Negotiable Instruments Act, 1881 - Concern on day to day activities of company - petitioners were the Directors of the company accused, denying that they had any concern or responsibility with the conduct of the day-today business of the company - Held that:- Averments are deficient to the effect that there is not even a whisper of allegation that the petitioners are persons who were in charge of or responsible to the company accused for the conduct of its business “at the time the offence was committed”.
The petitioners are not stated to be signatories to the cheques in question. They cannot be roped in merely because they have been directors of the company accused. The general averments that they were responsible for all the business dealings and for the circumstances leading to the dishonour of the cheques or that they had given any assurance as to the cheques, do not suffice.
The view taken by the revisional court, therefore, cannot be upheld - The complaint cases, in so far as these petitioners are concerned, do not pass the muster of the requisite basic averments - petitions are allowed - decided in favor of petitioners.
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2018 (7) TMI 1568 - DELHI HIGH COURT
Prosecution of the parties - Section 141 Negotiable Instruments Act, 1881 - concern of the accused with the responsibility for the conduct of the day-to-day business of the company - Held that;- Averments are deficient to the effect that there is not even a whisper of allegation that the respondents are persons who were in charge of or responsible to the company accused for the conduct of its business “at the time the offence was committed”.
The respondents are not stated to be signatories to the cheques in question. They cannot be roped in merely because they have been directors of the company accused. The general averments that they were responsible for all the business dealings and for the circumstances leading to the dishonour of the cheques or that they had given any assurance as to the cheques do not suffice.
Petitions dismissed.
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2018 (7) TMI 1560 - DELHI HIGH COURT
Eligibility to get promoted to the rank of CIT - Held that:- When the DPC was held on 05.06.2015, for making recommendations for promotion to the post of CIT, the name of the respondent No.1 was duly included in the list of eligible candidates and he was found "fit" for being promoted. At that point in time, admittedly, none of the three categories carved out clause 2 of the O.M. dated 14.09.1992, were available to the petitioners to exclude the name of the respondent No.1 and adopt a sealed cover procedure for him.
The respondent No.1 was neither under suspension, nor had he been chargesheeted by the Department, nor were any criminal proceedings pending against him. After the respondent No.1 was assessed by the DPC for suitability, his name had been forwarded to the Competent Authority, namely, the ACC for making promotions. It was only at that stage that the ACC had desired to know the status of any complaint pending against the respondent No.1. By that time, the Ministry of Home Affairs had intimated the petitioners that it had received the first stage advice by the CVC on 26.06.2015, for initiating major penalty proceedings against the respondent No.1.
It is noteworthy that even by that time, penalty proceedings had not been initiated against the respondent No.1. The position remained the same when the O.A. filed by the respondent No.1 was decided by the Tribunal on 12.05.2016 right upto 06.02.2017, when a chargesheet was finally issued against respondent No.1, proposing to initiate disciplinary proceedings against him. By then, the impugned judgment came to be passed by the Tribunal directing the petitioners to promote the respondent No.1 from the date his immediate juniors who, we are informed, are about 25-30 in number, were promoted.
Given the fact that the respondent No.1 did not fall in any of the categories set out in clause 2 of the O.M. dated 14.09.1992, simply because disciplinary proceedings were being contemplated against him, could not be a ground to have kept him out of the list of officers who were promoted to the rank of CIT, in terms of the promotion order dated 16.09.2015 impugned by him. the relevant date for determining the eligibility of the respondent No.1 ought to have been 05.06.2015, when the DPC had convened for making recommendation for promotion to the post of CIT, for the panel year 2014-15.
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2018 (7) TMI 1540 - DELHI HIGH COURT
Authority to fill the date in an undated cheque - non-payment of the value of the cheque on dishonor of the cheque - it was alleged that petitioner failed to make any payment inspite of service of notice of demand - Section 138 of the Negotiable Instruments Act, 1881 - Held that:- The fact that the petitioner had handed over an undated cheque, in the given facts and circumstances would ordinarily lead to presumption of grant of authority to the payee i.e. the complainant to fill in the date - The assertion of the petitioner that there was no such authority gives rise to a question of fact which cannot be answered without both parties being called upon to adduce evidence - petition dismissed - decided against petitioner.
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2018 (7) TMI 1426 - SUPREME COURT
Interpretation of Statute - Article 239AA of the Constitution - Whether the inhabitants or voters of NCT of Delhi remain where they were prior to the special status conferred on the Union Territory or the amended constitutional provision that has transformed Delhi instills "Prana" into the cells?
Held that:- It would be fundamentally inappropriate to assign to the NCT a status similar to other Union territories. Article 239AA(4) is a special provision which was adopted to establish a special constitutional arrangement for the governance of the NCT, albeit within the rubric of Union territories. In interpreting the provisions of Article 239AA, this Court cannot adopt a blinkered view, which ignores legislative and constitutional history. While adopting some of the provisions of the Acts of 1963 and 1966, Parliament in its constituent capacity omitted some of the other provisions of the legislative enactments which preceded the sixty ninth amendment. The relationship between the Council of Ministers and the Administrator of the Union territory evolved as Delhi progressed from a Part C State (before the Seventh Amendment) to a Union Territory governed by legislation - As a Union territory, the position of Delhi has evolved from being administered by an Administrator Under Article 239A following the fourteenth amendment and from governance under the earlier enactments of Parliament to its present-day status as a national capital territory governed by a specific constitutional provision: Article 239AA.
The constitutional principle which emerges is that while Delhi presents a special case, quite unlike the other Union territories, the constitutional provisions governing it are an amalgam between national concerns (reflected in control by the Union) and representative democracy (expressed through the mandate of a Council of Ministers which owes collective responsibility to a directly elected legislature). There is no gainsaying the fact that the control by the Union, is also control of the President acting on the aid and advice of the Union Council of Ministers which in turn owes collective responsibility to Parliament. Constitutional statesmanship between the two levels of governance, the Centre and the Union territory, ought to ensure that practical issues are resolved with a sense of political maturity and administrative experience. This Court has to step in only because skirmishes between the two have raised constitutional issues of the proper distribution of executive control over the National Capital Territory.
The interpretation of the Constitution has to be purposive taking into consideration the need of time and Constitutional principles. The intent of the Constitution framers, the object and reasons of a Constitutional Amendment always throw light on the Constitutional provisions. For adopting the purposive interpretation of a particular provision the express language employed cannot be given a complete go-bye - The Parliament has power to make laws for NCTD in respect of any of the matters enumerated in State List and Concurrent List. The Legislative Assembly of NCTD has also legislative power with respect to matters enumerated in the State List (except excepted entries) and in the Concurrent List.
When the Constitution was enforced, executive power of Union in reference to Part C States with regard to Concurrent List was not excluded. Part C States having been substituted by 7th Constitution Amendment as Union Territories. The word 'State' as occurring in proviso to Article 73 after 7th Constitution Amendment cannot be read as including Union Territory. Reading the word 'Union Territory' within the word 'State' in proviso to Article 73 shall not be in consonance with scheme of Part VIII (Union Territories) of the Constitution.
From persons holding high office, it is expected that they shall conduct themselves in faithful discharge of their duties so as to ensure smooth running of administration so that rights of all can be protected.
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2018 (7) TMI 1221 - CENTRAL INFORMATION COMMISSION
Seeking of Information from CPIO - RTI application - Held that:- The Commission directs the CPIO/FAA to provide information on point A(iii) to the Appellant within a period of 15 days from the date of receipt of this order - It is appalling to note that the FAA had also not acted in accordance with the provisions of the RTI Act, 2005 and therefore is advised to be alert and cautious in the implementation of the RTI Act, 2005 with due diligence and care - appeal disposed off.
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2018 (7) TMI 1137 - SUPREME COURT
Whether the Division Bench was right in setting aside the letter dated 13.03.2013 of IOC which terminated the respondent's dealership and was, therefore, justified in issuing a mandamus against the IOC to restore the dealership of the respondent herein and resume supply of fuel to his fuel station? - Held that:- The Division Bench was not justified in doing so - reconsideration of the respondent's case as to whether his dealership should be restored or not was an independent cause of action between the parties and the same arose after the award was passed and upheld by the Single Judge. It has, therefore, nothing to do with the award and nor it could be linked with the arbitration proceedings.
It was solely within the discretion of the IOC they being the principal to decide as to whether the respondent's dealership should be restored or not and, if so, on what grounds. The IOC considered the case of the respondent and after taking into account all the facts and circumstances appearing in the respondent’s working, came to a conclusion that it was not possible for them to restore his dealership. It was accordingly informed to the respondent vide letter dated 13.03.2013 - the writ Court (Single Judge) was, therefore, justified in dismissing the respondent's writ petition and upholding the rejection on the ground that the High Court cannot interfere in the administrative decision of IOC and nor it can substitute its decision by acting as an Appellate Court over such decision in exercise of writ jurisdiction. It is more so when such decision is based on reasons involving no arbitrariness of any nature therein which may call for any interference by the High Court.
The Division Bench committed an error in interpreting the award. The Division Bench proceeded on entirely wrong assumption that since the award was in respondent's favour, the IOC had to simply issue a consequential order in compliance thereof directing the IOC to revive the respondent's dealership and restore the supply of fuel to the respondent.
Appeal allowed - the impugned order of the Division Bench set aside and the order of the Single Judge (writ Court) restored.
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2018 (7) TMI 1136 - SUPREME COURT
Confusion with regard to the age of superannuation - petitioner submits that certain positions in the National Consumer Disputes Redressal Commission (NCDRC) have not yet been filled up though vacancies are there - Held that:- There is some confusion with regard to the Income Tax Appellate Tribunal (ITAT) as regards the age of superannuation - It is clarified that the person selected as Member of the ITAT will continue till the age of 62 years and the person holding the post of President, shall continue till the age of 65 years - Let the matter be listed on 13.8.2018.
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