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2009 (5) TMI 1009
Pilot project - Validity of the Swiss Challenge Method adopted by the Maharashtra Housing and Area Development Authority ("MHADA") - Inviting public tender for development of the Government lands - proposal received from a private entrepreneur i.e. Ravi Development for development of undeveloped land - HELD THAT:- In the present project, constructed built up area with richer specifications is to be handed over by Ravi Development to MHADA free of costs in turn MHADA will be at liberty to price these tenements in accordance with policies of MHADA or as may be determined by MHADA. Therefore, utilization of maximum permissible FSI, adopting higher specifications and effecting utilization of scarce land for housing and yet make LIG, MIG housing group financially attractive to the people is possible through joint venture of public and private bodies in which reasonable built area be available by private developer free of cost to MHADA. The above claim and concept cannot be ignored lightly.
We conclude that the impugned pilot project or initiation taken by the Government of Maharashtra along with MHADA to encourage public-private participation is in accordance with the need of the time as well as a laudable effort. But to make it an effective approach Swiss Challenge Method or any other encouraging concept should be duly publicized first. The effort of public-private participation can only be possible when private entities are aware of such scheme. Also in the scheme of availing a new system thorough rules and regulations are needed to be followed otherwise unfairness, arbitrariness or ambiguity may creep in. In order to avoid such ill-effects the State Government is suggested to consider the following aspects:
1. The State/Authority shall publish in advance the nature of Swiss Challenge Method and particulars;
2. Publish the nature of projects that can come under such method;
3. Mention/notify the authorities to be approached with respect to the project plans;
4. Mention/notify the various fields of the projects that can be considered under the method;
5. set rules regarding time limits on the approval of the project and respective bidding:
6. the rules are to be followed after a project has been approved by the respective authorities to be considered under the method.
7. All persons interested in such developmental activities should be given equal and sufficient opportunity to participate in such venture and there should be healthy inter se competition amongst such developers.
These suggestions are not exhaustive and the State is free to incorporate any other clauses for transparency and proper execution of the scheme. The State Government is suggested to frame regulations/instructions on the above lines and take necessary steps thereafter in future.
Thus, the common impugned judgment and order of the Bombay High Court in W.P. (L) are set aside. Consequently, the appeals are allowed.
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2009 (5) TMI 1008
1. ISSUES PRESENTED and CONSIDERED The core legal questions considered in this judgment include: - The interpretation and application of Section 299 of the Code of Criminal Procedure, 1973, Section 33 of the Indian Evidence Act, 1871, and Section 14(5) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA).
- Whether the Designated Court's order to record evidence in the absence of the accused was valid under Section 299 of the Code.
- The legality of using the depositions of witnesses who have since expired against the appellant, given the procedural and jurisdictional requirements.
- The right of the accused to confront witnesses as part of a fair trial under Article 21 of the Constitution of India.
- The applicability of Section 14(5) of TADA in the context of the trial proceedings.
2. ISSUE-WISE DETAILED ANALYSIS Interpretation and Application of Section 299 of the Code - Relevant legal framework and precedents: Section 299 of the Code allows for the recording of evidence in the absence of an accused if it is proved that the accused has absconded and there is no immediate prospect of arresting him. The evidence can be used if the deponent is dead or incapable of giving evidence.
- Court's interpretation and reasoning: The Court emphasized that the conditions under Section 299 must be strictly construed and both jurisdictional facts-absconding and no immediate prospect of arrest-must be proved conjunctively.
- Key evidence and findings: The appellant was not absconding as he had been arrested and was in custody, a fact known to the prosecution. The Designated Court failed to consider these facts, rendering its order unsustainable.
- Application of law to facts: The Court found that the Designated Court's order lacked jurisdictional basis as the appellant was not absconding, and there was a prospect of securing his presence.
- Treatment of competing arguments: The State contended that the procedural irregularity was curable under Section 465 of the Code. However, the Court held that non-compliance with jurisdictional facts is not a mere irregularity but a fundamental error.
- Conclusions: The Designated Court's order under Section 299 was invalid as it did not meet the statutory requirements.
Right to Confront Witnesses - Relevant legal framework and precedents: The right to confront witnesses is considered a fundamental aspect of a fair trial, although not explicitly a fundamental right under the Indian Constitution.
- Court's interpretation and reasoning: The Court recognized the right to confront witnesses as a statutory right under the Evidence Act, emphasizing the need for cross-examination to test the credibility of witness testimony.
- Key evidence and findings: The appellant was denied the opportunity to cross-examine witnesses who had died before he was formally charged, violating his right to a fair trial.
- Application of law to facts: The Court held that the denial of the right to confront witnesses caused prejudice to the appellant, rendering the trial unfair.
- Treatment of competing arguments: The State argued that the appellant suffered no prejudice. The Court disagreed, stating that the denial of natural justice itself constitutes prejudice.
- Conclusions: The use of witness depositions without cross-examination violated the appellant's rights, necessitating the setting aside of the order.
Applicability of Section 14(5) of TADA - Relevant legal framework and precedents: Section 14(5) of TADA allows a Designated Court to proceed with the trial in the absence of the accused for recorded reasons, subject to the right of the accused to recall witnesses for cross-examination.
- Court's interpretation and reasoning: The Court held that Section 14(5) requires the presence of the accused or his pleader, which was not the case here. The provision was not applicable as the appellant was not represented.
- Key evidence and findings: No application was filed under Section 14(5) of TADA, and the Designated Court did not record reasons for proceeding in the appellant's absence.
- Application of law to facts: The Court found that the procedural safeguards under Section 14(5) were not observed, further invalidating the trial proceedings.
- Treatment of competing arguments: The State's argument that TADA provisions override the Code was rejected as the specific procedural requirements were not met.
- Conclusions: Section 14(5) was not applicable, and the proceedings were flawed due to the lack of compliance with procedural safeguards.
3. SIGNIFICANT HOLDINGS - Preserve verbatim quotes of crucial legal reasoning: "The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary."
- Core principles established: The strict compliance with procedural requirements under Section 299 of the Code is imperative. The right to confront witnesses is a fundamental aspect of a fair trial, and its denial constitutes prejudice.
- Final determinations on each issue: The Designated Court's order to record evidence in the absence of the accused was set aside. The appellant's right to a fair trial was violated, and the use of witness depositions without cross-examination was deemed inadmissible.
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2009 (5) TMI 1007
Murder - common motive or prior conspiracy - Offence punishable u/s 307 and 302 r/w Section 149 IPC and u/s's 3 and 5 of Explosive Substances Act, 1908 (`Explosive Act') - explosion of bombs - sustained splinter injuries - Delay in lodging the FIR - Power of an appellate court in an appeal against an order of acquittal - A-5 died on the date of the occurrence while A-8 died during the pendency of the trial - there are 13 accused persons whose case remains to be considered - HC acquitted A-16 and A-17 from all the charges and convicted the rest of the accused -
HELD THAT:- Bare reading of Section 378 (appeal in case of acquittal), makes it clear that no restrictions have been imposed by the legislature on the powers of the appellate court in dealing with appeals against acquittal. When such an appeal is filed, the High Court has full power to re-appreciate, review and reconsider the evidence at large, the material on which the order of acquittal is founded and to reach its own conclusions on such evidence.
It cannot, however, be forgotten that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person should be presumed to be innocent unless he is proved to be guilty by a competent court of law. Secondly, the accused having secured an acquittal, the presumption of his innocence is certainly not weakened but reinforced, reaffirmed and strengthened by the trial court.
Powers of Appellate Court - Chandrappa and Ors. v. State of Karnataka [2007 (2) TMI 704 - SUPREME COURT],the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal were culled out.
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.
The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the Judge.
While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice. This position was illuminatingly stated by Venkatachaliah, J. (as His Lordship then was) in State of U.P. v. Krishna Gopal [1988 (8) TMI 421 - SUPREME COURT].
It is to be noted that in the instant case the incident took place in front of MDO office around 1.40 p.m. The finding of the trial Court is to the effect that murder of deceased took place at 1.40 p.m. and the same fact is not disputed by the accused persons. Between 2.40 and 2.45 p.m. the deceased and the injured were taken to the Government Hospital by PW-9 which is also 12 KM from the place of occurrence. The medical intimation is Ext.P-25 which was sent to the Station Incharge at 2.45 p.m. PW-1 the de facto complainant was examined by PW-22 at around 3.30 p.m. The Station Incharge received information around that time. At 4.00 p.m. the statement of the de facto complainant (PW-1) was recorded by the Head Constable in the presence of PW-22. The statement of PW-1 along with Ext.P-25 was sent to Police Station on the point of jurisdiction and the same was registered by PW-21.
The inquest was held at around 9 to 12 p.m. and copy of FIR was received by the Magistrate. It is to be noted that since the Magistrate was on leave and Magistrate at another place was not the incharge, it was sent to another Court which is at a distance of 60 K.M. as is evident from the evidence of PW-21. Therefore, there is no delay in sending the FIR to the Magistrate. The allegation that the FIR was ante timed is without any foundation.
The impugned judgment cannot be said to be suffering from infirmity to warrant interference. The appeal fails and is dismissed.
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2009 (5) TMI 1006
Quantum of compensation in Motor Accident Claims - Payment of "just compensation" - Multiplier Method for calculating pecuniary loss or loss of dependency - Quantify Non-pecuniary compensation - Conventional compensation - Rash and Negligent driving - School bus after overrunning the road and breaking the railing, drowned in Yamuna river - 29 children died - claim for fault liability and sought for payment of compensation u/s 163A r/w Second Schedule of the Motor Vehicle Act, 1988 (`the Act') - Tribunal not awarded interest from the date of petition till realization - HC by its common order held that the appellants are entitled to enhancement of compensation in all the cases and also directed that the dependents would be entitled to interest but would not withdraw the principal amount during the lock-in period of six years without the permission of the Tribunal.
HELD THAT:- No amount of compensation can restore the lost limb or the experience of pain and suffering due to loss of life. Loss of a child, life or a limb can never be eliminated or ameliorated completely. To put it simply-pecuniary damages cannot replace a human life or limb lost. Therefore, in addition to the pecuniary losses, the law recognises that payment should also be made for non pecuniary losses on account of, loss of happiness, pain, suffering and expectancy of life etc. The Act provides for payment of "just compensation" vide Section 166 and 168. It is left to the courts to decide what would be "just compensation" in facts of a case.
Under the Second Schedule of the Act in case of a non earning person, his income is notionally estimated at ₹ 15,000/- per annum. The Second Schedule is applicable to claim petitions filed u/s 163A. The Second Schedule provides for the multiplier to be applied in cases where the age of the victim was less than 15 years and between 15 years but not exceeding 20 years. Even when compensation is payable u/s 166 r/w 168A, deviation from the structured formula as provided in the Second Schedule is not ordinarily permissible, except in exceptional case Abati Bezbaruah v. Dy. Director General, Geological Survey of India [2003 (2) TMI 505 - SUPREME COURT].
The date of accident is 18.11.1997. Prior to this, the Second Schedule of the Act was already introduced w. e. f. 14.11.1994. Thus, the notional income mentioned in the Second Schedule and the multiplier specified therein can form the basis for the pecuniary compensation for the loss of dependency in the present cases. No fact and reason was highlighted during the arguments why the Second Schedule should not apply in the present cases.
The Second Schedule also provides for deduction of 1/3rd consideration towards expenses; which the victim would have incurred on himself if he had lived. As compensation for loss of dependency is to be calculated on the basis of notional income because the deceased was a child. It by necessary implication takes into account future prospects, inflation, price rise etc. Therefore keeping in view of Second Schedule of the Act, this Court do not see any reason to differ with the view taken by the Tribunal as well as the HC in so far as award of pecuniary compensation to the dependents/claimants is concerned.
We must point out here that the learned Counsel for the appellants had argued that the notional sum of ₹ 15,000/- should be enhanced and increased as the legislature has not amended the Second Schedule and the same continues to be in existence since it was enacted on 14.11.1994. We are not examining and going into this aspect as the accident had taken place in the present case nearly three years after the enactment of the Second Schedule. The time difference between the date of the enactment and the date of accident is not substantial.
While quantifying and arriving at a figure for "loss of expectation of life", the Court have to keep in mind that this figure is not to be calculated for the prospective loss or further pecuniary benefits that has been awarded under another head i.e. pecuniary loss. The compensation payable under this head is for loss of life and not loss of future pecuniary prospects. Under this head, compensation is paid for termination of life, which results in constant pain and suffering.
Conventional compensation - The term "conventional compensation" used in the said case has been used for non pecuniary compensation payable on account of pain and suffering as a result of death. The Court in the said case referred to ₹ 50, 000/- as conventional figure. The reason was loss of expectancy of life and pain and suffering on that account which was common and uniform to all regardless of the status. Unless there is a specific case departing from the conventional formula, non- pecuniary compensation should not be fixed on basis of economic wealth and background.
In M.S. Grewal & anr. v/s Deep Chand Sood & ors. [2001 (8) TMI 1450 - SUPREME COURT], compensation of ₹ 5 lakhs was awarded to the claimants and the same was held to be justified. Learned Counsel for the respondent No. 3, however, pointed out that in the said case the Supreme Court had noticed that the students belonged to an affluent school as was apparent from the fee structure and therefore the compensation of ₹ 5 lakhs as awarded by the HC was not found to be excessive. It is no doubt true that the Supreme Court in the said case noticed that the students belonged to an upper middle class background but the basis and the principle on which the compensation was awarded in that case would equally apply to the present case.
A forceful submission has been made by the learned Counsels appearing for the claimants-appellants that both the Tribunal as well as the High Court failed to consider the claims of the appellants with regard to the future prospects of the children. It has been submitted that the evidence with regard to the same has been ignored by the Courts below.
On perusal of the evidence on record, we find merit in such submission that the Courts below have overlooked that aspect of the matter while granting compensation. It is well settled legal principle that in addition to awarding compensation for pecuniary losses, compensation must also be granted with regard to the future prospects of the children. It is incumbent upon the Courts to consider the said aspect while awarding compensation. We deem it appropriate to grant compensation of ₹ 75,000/- (which is roughly half of the amount given on account of pecuniary damages) as compensation for the future prospects of the children, to be paid to each claimant within one month of the date of this decision. We would like to clarify that this amount i.e. ₹ 75,000/- is over and above what has been awarded by the HC.
Pecuniary and Non-pecuniary damages - We are of the considered view both the Tribunal as well as HC has awarded the compensation on the basis of Second Schedule and relevant multiplier under the Act. However, we may notice here that as far as non-pecuniary damages are concerned, the Tribunal does not award any compensation under the head of non-pecuniary damages. However, in appeal the HC has elaborately discussed this aspect of the matter and has awarded non-pecuniary damages of ₹ 75,000. Needless to say, pecuniary damages seeks to compensate those losses which can be translated into money terms like loss of earnings, actual and prospective earning and other out of pocket expenses.
Non-pecuniary damages include such immeasurable elements as pain and suffering and loss of amenity and enjoyment of life. In this context, it becomes duty of the court to award just compensation for non-pecuniary loss. It is difficult to quantify the non-pecuniary compensation, nevertheless, the endeavour of the Court must be to provide a just, fair and reasonable amount as compensation keeping in view all relevant facts and circumstances into consideration.
We have noticed that the HC in present case has enhanced the compensation in this category by ₹ 75, 000/- in all connected appeals. We do not find any infirmity in that regard.
Interest - Tribunal had directed for payment of interest for only four years at the rate of 6% per annum from the date of filing of the claim petition till the award and in case of payment was not made within 30 days then further interest at the rate of 6% from the date of award till payment. In appeal, HC awarded 7% per annum from the date of filing of the petition till payment. We find the interest awarded by the HC as just and proper, so the same need not be disturbed.
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2009 (5) TMI 1005
Issues involved: Revision petition challenging order framing charges u/s 21(c) read with Section 29 NDPS Act and order holding prima facie material to proceed against petitioner and co-accused.
Details of the Judgment:
1. The Respondent DRI received secret information about a drug delivery on 9th September 2007. The Tata Indica car, driven by the petitioner, was parked at the designated spot. The Opel Corsa car arrived, and the co-accused transferred bags to the Tata Indica car. DRI officers intercepted both vehicles and found 14.871 kg heroin in the bags.
2. Statements of the petitioner and co-accused were recorded during the investigation. The DRI alleged that the petitioner was part of a conspiracy to possess and transport the narcotic drug.
3. The petitioner was granted bail by the Court, which opined that he was not aware of the drug transfer in the car.
4. The petitioner challenged the order, arguing that there was no prima facie case against him. He retracted his statement under Section 67 of the NDPS Act, claiming it was not voluntary. The co-accused's statement did not implicate the petitioner.
5. The DRI contended that there was sufficient material to charge the petitioner based on his statement under Section 67 NDPS Act, leaving the determination of voluntariness for trial.
6. The Court analyzed the facts and found that the petitioner was not in possession or conscious possession of the drug. The charges under Section 21 or Section 29 NDPS Act were not applicable to him.
7. The statement under Section 67 NDPS Act, though retracted, indicated the petitioner's knowledge of the drug delivery. However, there was no independent witness or co-accused statement supporting this claim.
8. The Court held that the DRI failed to prove the voluntariness of the petitioner's statement. The reliance on a previous judgment was deemed misplaced, and the petitioner was discharged from the case.
9. The impugned order on charges against the petitioner was set aside, and he was discharged from the case, while the trial continued for the other co-accused.
10. The petition was allowed, and the order was to be sent to the trial court promptly.
End of Judgment
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2009 (5) TMI 1004
Validity of Bail granted already - Whether with the change of an investigating authority, police custody of the accused on remand can be sought for, although cognizance of the offence had already been taken? - HELD THAT:- The power of remand in terms of the aforementioned provision is to be exercised when investigation is not complete. Once charge-sheet is filed and cognizance of the offence is taken, the court cannot exercise its power under Sub-section (2) of Section 167 of the Code.
Appellants had been granted bail. They are not in custody of the court. They could not be taken in custody ordinarily unless their bail was cancelled. The High Court, in our opinion, was not correct in holding that as further investigation was required, Sub-section (2) of Section 167 of the Code gives ample power for grant of police remand.
Furthermore in this case the Special Investigating Team has already submitted its report to this Court. Nothing has been pointed out before us as to why even the bail granted to the appellants should be cancelled so as to enable us to consider that question independently. No sufficient or cogent material has been placed on record by the State or the Special Investigating Team in this behalf.
Thus, the impugned judgment cannot be sustained which is set aside accordingly. The appeal is allowed.
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2009 (5) TMI 1003
Issues involved: Challenge to detention order and rejection of representation under Section 11 of COFEPOSA.
Challenge to detention order:
The writ petition was filed against the detention order dated 17.08.2001 and the subsequent rejection of the petitioner's representation on 24.04.2007. Three representations were made by the petitioner before the detaining authority, all of which were rejected without being communicated to the petitioner. The court referred to previous judgments and directed the detaining authority to consider and dispose of the representation made by the petitioner. The court clarified that reasons for revoking or refusing to revoke the detention order need not be communicated but should be recorded by the detaining authority. The writ petition was disposed of based on these directions.
Rejection of representation under Section 11 of COFEPOSA:
The petitioner filed a representation under Section 11 of COFEPOSA for revocation of the detention order, as directed by the Division Bench. However, this representation was rejected on 24.04.2007, citing the petitioner's failure to submit to the process of law. The court found the rejection to be based on a ground not available to the respondents due to the previous court order. The rejection was set aside, and the detaining authority was directed to reconsider the representation, taking into account the current state of law in India. The petitioner was allowed to file a comprehensive representation within two weeks, and the respondents were directed to make a decision within eight weeks without taking any coercive steps in the meantime.
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2009 (5) TMI 1002
Issues Involved:
1. Delay and laches in challenging the termination order.
2. Entitlement to monetary and service benefits post-acquittal.
Summary:
1. Delay and Laches in Challenging the Termination Order:
The appellant's husband, an Assistant in the Bihar School Examination Board, was terminated following his conviction u/s 420, 467, 471, 458, and 120B of the IPC. The appellant's husband did not challenge the termination during his lifetime. The High Court rejected the writ petition on grounds of delay and laches, stating that the appellant could not question the termination order after such a long period. The Supreme Court noted that the dismissal was due to the conviction, and since the conviction was later set aside by the Sessions Court, the appellant could not have challenged the termination earlier. The Court held that the High Court was not justified in rejecting the petition solely on the grounds of delay and laches.
2. Entitlement to Monetary and Service Benefits Post-Acquittal:
The appellant sought monetary and service benefits, arguing that her husband should be deemed in service until retirement due to his acquittal. The High Court dismissed this claim, but the Supreme Court found that since the termination was based on a conviction that was later overturned, the appellant was entitled to relief. The Court referenced the case of G.M. Tank v. State of Gujarat, emphasizing that while the appellant was not entitled to back wages, she was entitled to pension benefits. The Supreme Court set aside the termination order and directed that the appellant be granted pension benefits.
Conclusion:
The Supreme Court allowed the appeal, set aside the High Court's orders, and ruled that the appellant was entitled to pension benefits, but not back wages. The Court emphasized the need for a just and equitable approach, considering the appellant's circumstances and the prolonged litigation.
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2009 (5) TMI 1001
Issues involved: Whether the membership of a deceased member of a cooperative group housing society can be inherited by his nominee who is otherwise ineligible.
Summary:
The judgment deals with the issue of whether the membership of a deceased member of a cooperative group housing society can be inherited by his nominee who is otherwise ineligible. The Petitioner-Society restricted its membership to widows with a specific income limit. The deceased member's son, Respondent No. 3, sought to inherit the membership but was deemed ineligible by the society. Respondent No. 3 filed a complaint before the Consumer Dispute Redressal Forum and later approached the Registrar, Cooperative Societies, claiming membership. The Registrar ruled in favor of Respondent No. 3, allowing him to step into his deceased mother's membership. The Petitioner-Society's revision petition was dismissed, leading to the present case before the High Court.
The High Court considered the eligibility criteria set by the Petitioner-Society and the entitlement of the nominee to inherit the deceased member's membership. Referring to the Supreme Court decision in Gayatri De v. Mousumi Cooperative Housing Society Ltd., the High Court distinguished between cases where the deceased member was allotted a plot or flat and cases where the member was only a society member. It was held that in the latter case, the membership itself cannot be inherited by a nominee, akin to membership in a club or association. The High Court cited previous decisions to support this distinction.
Ultimately, the High Court concluded that Respondent No. 3 could not inherit the membership of his deceased mother due to his failure to meet the eligibility conditions specified by the Petitioner-Society. The Court also noted that the finality of the District Consumer Dispute Redressal Forum's decision did not prevent Respondent No. 3 from pursuing the matter further. The impugned orders by the Registrar and Financial Commissioner were deemed unsustainable in law, and the writ petition was allowed with no costs.
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2009 (5) TMI 1000
Issues Involved:
1. Whether the delinquent employee is not supposed to establish de-facto prejudice in case the enquiry report is not supplied to him before awarding punishment?
2. Whether the order of punishment would be vitiated if the Disciplinary Authority takes into consideration the past conduct of the delinquent employee for the purpose of punishment?
Summary:
Issue 1: Non-supply of Enquiry Report and Prejudice
The Supreme Court examined whether non-furnishing the enquiry report to the delinquent employee before awarding punishment automatically vitiates the disciplinary proceedings. It was held that the delinquent employee must establish that non-furnishing of the enquiry report caused prejudice to him. The Court cited precedents, including *Managing Director, ECIL v. B. Karunakar* and *Haryana Financial Corporation v. Kailash Chandra Ahuja*, emphasizing that the principles of natural justice require the employee to demonstrate real prejudice caused by the non-supply of the report. The Court concluded that non-supply of the enquiry report does not ipso facto vitiate the disciplinary proceedings; it depends on the facts and circumstances of the case.
Issue 2: Consideration of Past Conduct in Punishment
The Court addressed whether the Disciplinary Authority can consider the past conduct of the delinquent employee while imposing punishment. It was held that the past conduct could be taken into account to reinforce the decision of imposing punishment, even if it is not mentioned in the second show cause notice. The Court referred to *State of Assam v. Bimal Kumar* and *State of Mysore v. Manche Gowda*, stating that the disciplinary authority should inform the delinquent employee that past conduct would be considered, but in cases of grave misconduct, past conduct can be considered without it being part of the charge sheet. The Court emphasized that habitual absenteeism constitutes gross violation of discipline, referencing *Burn & Co. Ltd. v. Wormess* and *L&T Komatsu Ltd. v. N. Udayakumar*.
Conclusion:
The Supreme Court allowed the appeal, setting aside the judgments of the Division Bench and the learned Single Judge of the Calcutta High Court. The order of punishment imposed by the statutory authority was restored. The Court emphasized that the High Court should not have interfered with the punishment order on technical grounds, especially given the respondent's repeated absenteeism and gross violation of discipline. No costs were awarded.
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2009 (5) TMI 999
Issues involved: Challenge to notification dated 12.06.2006 u/s 5 of the Foreign Trade (Development and Regulation) Act, 1992 for retrospective effect in amending the Target Plus Scheme.
Details of the Judgment:
Challenge to Notification: The petitioner challenged the notification dated 12.06.2006, issued by the Directorate General of Foreign Trade, for giving retrospective effect to the amendment made in the Target Plus Scheme u/s 5 of the Act, 1992. The petitioner sought a writ declaring the notification ultravires the Act and the Constitution, citing violation of Articles 14 and 19(1)(g) of the Constitution due to withdrawal of benefits with retrospective effect.
Background of the Scheme: The petitioner, engaged in manufacturing and export of goods, had received a Certificate of Recognition as Trading House for its export activities. The Ministry of Commerce had launched the Target Plus Scheme in 2004 under the Foreign Trade Policy to incentivize export growth, rewarding Star Export Houses based on incremental export percentages.
Abolishment of Scheme: The Ministry, through a notification dated 31.03.2006, abolished the Target Plus Scheme from 1.4.2006 onwards, affecting entitlements for duty credit. The petitioner accepted this decision and adjusted its operations accordingly. However, a subsequent notification on 12.06.2006 amended the Scheme retrospectively for exports from 01.04.2005, leading to the present challenge.
Legal Argument: The petitioner contended that the Central Government, u/s 5 of the Act, can formulate and amend export policies prospectively, not retrospectively, invoking the principle of promissory estoppel. The petitioner had relied on a Gujarat High Court judgment setting aside a similar notification retrospectively, which the present Court found applicable to this case as well.
Court Decision: After considering arguments and the Gujarat High Court judgment, the Court held the notification dated 12.06.2006 ultravires the Act, 1992 for giving retrospective effect. The Court quashed the notification and declared the petitioners entitled to duty credit entitlement certificate, if eligible, without retrospective impact.
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2009 (5) TMI 998
Issues involved: Appeal against disallowance of deduction of redemption fine paid u/s 260A of the Income-tax Act for release of seized gold ornaments.
Judgment Summary:
Issue 1: Nature of redemption fine as a deductible business loss
The appellant, a Goldsmith-cum-Jeweller, appealed against disallowance of deduction of a sum paid as redemption fine imposed by Central Excise authorities for release of seized gold ornaments. The Central Excise authorities confiscated the gold and imposed a penalty, allowing redemption on payment of a fine. The appellant claimed deduction of the redemption fine, contending it as a business loss. However, the Assessing Officer disallowed the deduction, stating that the fine is penal in nature and not allowable. The appellant's appeal before the Tribunal was also unsuccessful. The Court considered arguments citing relevant case laws but held that the deduction claim is not maintainable under section 69A, which does not provide for deductions while assessing unexplained income. The Court dismissed the appeal, stating that the redemption fine is not an admissible claim under section 69A.
Issue 2: Assessment of seized gold ornaments under section 69A
The Court clarified that section 69A authorizes assessment of unexplained income, deeming any unaccounted money or valuable article found in ownership of the assessee as income for the financial year. In this case, the appellant's unaccounted gold ornaments were seized, and the value was assessed under section 69A. The Court emphasized that section 69A does not allow deductions while making additions. The Court noted that subsequent events like adjudication and redemption of the gold ornaments do not affect the assessment under section 69A. The Court stated that if the retrieved gold is later taken as stock in business, the redemption fine paid may be claimed as expenditure or cost. However, since this issue was not relevant for the assessment year in question, the Court did not provide any opinion on it.
Conclusion:
The Court dismissed the appeal, upholding the disallowance of the redemption fine deduction under section 69A, clarifying the nature of the deduction claim and the assessment of seized gold ornaments.
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2009 (5) TMI 997
The Supreme Court condoned delay and issued notice in the case with citation 2009 (5) TMI 997. Judges were Mr. S.H. Kapadia and Mr. Aftab Alam.
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2009 (5) TMI 996
Commission of an offence u/s 341 IPC - Construction/tarring of the road - difficulties in ingress and egress to and from his house for a short while - Allegations against Managing Director and the Directors of the Company - Vicarious liability - M/s Gharda Chemicals Limited is a deemed public limited company registered and incorporated under the Companies Act, 1956 - Appellant No. 1 (Accused No. 1) is the Chairman cum Managing Director of the said Company - Appellants 2 to 5 are the Directors thereof and the Appellant No. 6 is an Architect. It is stated that Appellants 1 and 3 are no longer associated with the Company - first respondent lodge a FIR after he allegedly found that the work had been continuing - Allegations at that point of time were confined to Accused Nos. 8, 9 and 11 at the first stage and to Accused Nos. 8, 10 and 11 at the second stage - Accused Nos. 7 to 10 were workers of the Company.
HELD THAT:- The statement made by the first respondent that accused Nos. 1 to 5 were managing the affairs of the Company and had instigated accused No. 6 to construct the road must be viewed. It is one thing to say that the Company had asked the accused No. 6 to make construction but only because the accused Nos. 1 to 5 were its Directors, the same, in our opinion, would not be sufficient to fasten any criminal liability on them for commission of an offence u/s 341 of the IPC or otherwise.
Appellants herein were not at the site. They did not carry out any work. No overt act or physical obstruction on their part has been attributed. Only because legal proceedings were pending between the Company and the Bombay Municipal Corporation and/or with the first respondent herein, the same would not by itself mean that appellants were in any way concerned with commission of a criminal offence of causing obstructions to the first respondent and his parents.
We have noticed hereinbefore that despite of said road being under construction, the first respondent went to the Police Station thrice. He, therefore, was not obstructed from going to Police Station. In fact, a firm action had been taken by the authorities. The workers were asked not to do any work on the road. We, therefore, fail to appreciate that how, in a situation of this nature, the Managing Director and the Directors of the Company as also the Architect can be said to have committed an offence u/s 341 of the IPC.
The ld Additional CJM, therefore, in our opinion, was not correct in issuing summons without taking into consideration this aspect of the matter. The Managing Director and the Directors of the Company should not have been summoned only because some allegations were made against the Company.
Indisputably, there might have been some delay on the part of the appellants in approaching HC but while adjusting equity the HC was required to take into consideration the fact that in a case of this nature the appellants would face harassment although the allegations contained in the Complaint Petition even assuming to be correct were trivial in nature. HC furthermore has failed to take into consideration the fact that in the first information report no allegation in regard to acts of common intention or common object on the part of the appellants was made out. Appellants were not named as accused therein. It is, therefore, really difficult to appreciate as to on what basis the Complaint Petition was filed.
Therefore, the impugned judgment and order of the High Court is set aside. The appeal is allowed. The order summoning the appellant is quashed.
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2009 (5) TMI 995
Issues Involved:
1. Jurisdiction and powers of the Special Court under MCOCA.
2. Interplay between Section 9(1) and Section 23 of MCOCA.
3. Requirement of sanction under Section 23(2) for taking cognizance on private complaints.
4. Applicability of Section 156(3) Cr.P.C. in the context of MCOCA.
Detailed Analysis:
1. Jurisdiction and Powers of the Special Court under MCOCA:
The Special Court under MCOCA can take cognizance of any offence without the accused being committed to it for trial upon receiving a complaint of facts constituting such offence or upon a police report of such facts (Section 9(1)). The Special Court combines magisterial functions at the stage of cognizance and the powers of a Court of Session at the stage of trial (Section 9(4)). The Special Court has the authority to directly take cognizance of offences under MCOCA, eliminating the committal process.
2. Interplay between Section 9(1) and Section 23 of MCOCA:
Section 9(1) allows the Special Court to take cognizance of offences based on private complaints or police reports. However, this power is controlled by Section 23(2), which mandates that no Special Court shall take cognizance of any offence under MCOCA without the previous sanction of a police officer not below the rank of Additional Director General of Police. Section 23(1) further stipulates that no information about the commission of an offence of organized crime shall be recorded by a police officer without prior approval from a Deputy Inspector General of Police, and no investigation shall be carried out by an officer below the rank of Deputy Superintendent of Police.
3. Requirement of Sanction under Section 23(2) for Taking Cognizance on Private Complaints:
The Court held that even for private complaints, the Special Judge must obtain sanction from the competent authority as per Section 23(2) before taking cognizance. This requirement ensures that the stringent provisions of MCOCA are not misused and that there is a safeguard against false and malicious prosecutions. The majority view of the Full Bench of the Bombay High Court, which held that Section 9(1) was independent of Section 23, was negated. The minority view, which emphasized the necessity of sanction under Section 23(2) even for private complaints, was upheld.
4. Applicability of Section 156(3) Cr.P.C. in the Context of MCOCA:
The Court ruled that the Special Judge under MCOCA is not entitled to invoke Section 156(3) Cr.P.C. to order a special inquiry on a private complaint and take cognizance thereafter without following the procedure laid down in Section 23. The provisions of MCOCA, particularly Section 23, have an overriding effect over the Criminal Procedure Code due to Section 25 of MCOCA. Therefore, the Special Judge must forward private complaints to the designated police officer for inquiry and can only take cognizance if the required sanction is granted.
Conclusion:
The Supreme Court allowed the appeal filed by the State of Maharashtra, setting aside the majority decision of the Full Bench of the Bombay High Court. The Court endorsed the minority view, which correctly interpreted the interplay between Sections 9, 23, and 25 of MCOCA. The appeals filed by other parties were disposed of in line with this decision. The Court also directed the High Court to expedite the disposal of writ petitions filed by specific individuals, delinking their cases from the other appeals.
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2009 (5) TMI 994
Issues involved:
The issue in this case is whether the assessee, a 100% export-oriented unit (EOU) entitled to tax exemption under section 10B of the Income Tax Act, is justified in carrying over depreciation loss from 2002-03 to 2003-04.
Judgment Summary:
Issue 1: Entitlement to carry over depreciation loss
The assessee, an EOU enjoying tax exemption under section 10B, initially had 100% income exclusion. However, an amendment in 2001 limited the exemption to 90% of the income, allowing for depreciation and carry over of unabsorbed depreciation under section 32(2) of the IT Act. The Assessing Officer (AO) disallowed the carry forward of unabsorbed depreciation for the assessment year 2003-04, citing section 10B(6). The High Court held that section 10B(6) does not apply for the year 2003-04, as it pertains to the period following the end of the tax exemption. The court directed the AO to recompute the eligible depreciation and carry over unabsorbed depreciation from 2001-02 onwards based on the amendment, following the decision of the Supreme Court in CIT v. Manmohan Das [1966] 59 ITR 699 (SC).
Issue 2: Application of Supreme Court decision
The court emphasized that eligibility for carry forward of unabsorbed depreciation should be considered in the succeeding year, as per the Supreme Court's ruling in CIT v. Manmohan Das. The Tribunal's order was set aside, and the case was remanded to the AO for fresh orders, with directions to hear the assessee before passing the orders.
In conclusion, the High Court ruled in favor of the assessee, allowing for the carry forward of unabsorbed depreciation and business loss from 2001-02 onwards, and directed the AO to recompute the eligible depreciation accordingly.
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2009 (5) TMI 993
Title: Supreme Court Judgment 2009 (5) TMI 993 - SC
Judges: Mr. S.H. Kapadia and Mr. Aftab Alam, JJ.
Decision: Delay condoned. Civil appeal dismissed.
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2009 (5) TMI 992
Issues Involved:
1. Negligence before the operation.
2. Negligence during the operation.
3. Negligence after the operation.
4. Adequacy of compensation awarded by the Commission.
Issue-wise Detailed Analysis:
1. Negligence before the operation:
The complainant argued that pre-operative diagnostic investigations were not fully carried out. Despite four futile attempts at needle biopsies, a C.T. Scan or MRI by an experienced Radiologist was not performed, which could have revealed the existence of the tumour and its nature. The respondents contended that the investigations were conducted by a Radiologist and that sufficient information about the extent of the tumour had already been revealed. The Commission observed that there was pre-operative information about vertebral erosion and that necessary pre-operative diagnostic tests like MRI and myelogram were not conducted. This failure deprived the complainant of the services of a neurosurgeon in the entire surgery. The Supreme Court upheld this finding, noting that the involvement of the vertebral column had been revealed pre-operatively, and the necessary tests could have indicated the need for a neurosurgeon.
2. Negligence during the operation:
The complainant alleged that the surgery was performed without the involvement of a neurosurgeon, despite the tumour's neurological implications. The Commission found that the surgery involved the removal of the tumour and the fourth rib, leading to paraplegia, and that a neurosurgeon was called in belatedly. The Supreme Court agreed, noting that the tumour's extension into the spinal area required a neurosurgeon's intervention. The Court emphasized that the failure to associate a neurosurgeon at the pre-operative and operative stages was a clear case of negligence.
3. Negligence after the operation:
The complainant alleged negligence in post-operative treatment, leading to bedsores, severe pain, and high temperature. The Commission found negligence in the post-operative stage, noting that the operating surgeon and neurosurgeon left the theatre without informing the complainant's parents about the surgery's outcome. The Supreme Court, however, found no specific case spelt out on this score and only general observations stemming from the complications arising out of an operation gone wrong.
4. Adequacy of compensation awarded by the Commission:
The Commission awarded compensation under various heads, including prospective charges for physiotherapy, nursing, future earnings, and mental agony. The complainant sought an enhancement of the compensation, arguing that it was inadequate. The Supreme Court revised the compensation, considering the complainant's need for continuous medical aid, physiotherapy, nursing care, and future earnings. The Court awarded a total sum of Rs. 1 crore plus interest from 1st March 1999 to the date of payment, giving due credit for any compensation already paid. The Court declined the complainant's claim for Rs. 2 crore to be set aside for future medical developments as hypothetical and unjustified.
Conclusion:
The Supreme Court upheld the findings of negligence before and during the operation and revised the compensation awarded by the Commission, ensuring a reasonable income for the complainant's future needs. The Court emphasized the need for a balance between inflated demands and the opposite party's claims, ensuring adequate compensation based on the peculiar facts of the case.
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2009 (5) TMI 991
The Gujarat High Court admitted the case and issued notice on two substantial questions of law:
a) Whether rejection of the appellant's stay application and appeal by CESTAT without verifying if a similar case was decided in the appellant's favor is correct?
b) Whether the judgment of the Hon'ble Court in a writ petition filed by the appellant on financial hardship operates as res judicata in considering pleas for stay and waiver of predeposit conditions based on new grounds and fresh evidence?
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2009 (5) TMI 990
The Supreme Court issued an order to consider whether producing a film qualifies as manufacturing under Section 80IA of the Income Tax Act. The case is scheduled for final disposal on September 10, 2009, with the department required to notify the assessee of the hearing date.
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