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2009 (4) TMI 1028
Issues involved: Appeal by revenue against ITAT order denying tax credit under Section 115JAA, questions on interest calculation and precedence of MAT credit.
Tax Credit under Section 115JAA:
- Assessee claimed tax credit of Rs. 8,46,276 under Section 115JAA(4) and (5) for book profits in 1999-2000.
- AO denied claim, stating no provision for MAT credit on gross tax payable.
- CIT(A) allowed claim based on Chemplast Sanmar Limited case, adjusting MAT credit before TDS and advance tax.
- Tribunal upheld decision citing Chemplast Sanmar Limited, dismissing revenue's appeal.
- Revenue appealed, questioning interest calculation u/s 234B and C, citing Madras HC judgment and computation of interest credit under Section 115JAA.
- Division Bench, in line with CIT v. Jindal Experts Ltd., held MAT credit should precede interest under Section 234A, 234B, and 234C.
- Bench clarified legislative intent to give tax credit, not to tax and interest, rejecting reliance on Form-I for priority of adjustments.
- Upheld Tribunal's order, answering all questions against revenue in favor of assessee.
- Appeal dismissed as questions of law already answered in favor of assessee.
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2009 (4) TMI 1027
Issues Involved:
1. Constitutionality of Rule 38(B) under Articles 301 and 304 of the Constitution.
2. Validity of Rule 38(B) under Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957.
3. Application of Section 23-C of the Mines and Minerals (Development and Regulation) Act, 1957.
4. Interpretation of the term "regulation" in Section 23-C.
5. Environmental impact and public interest considerations.
6. Doctrine of Public Trust.
7. Relationship between Rule 38-A and Rule 38-B.
Issue-wise Detailed Analysis:
1. Constitutionality of Rule 38(B) under Articles 301 and 304 of the Constitution:
The court examined Articles 301 and 304 of the Constitution, which relate to the freedom of trade and the power of the State Legislature to impose restrictions. It was contended that Rule 38(B) violates Article 301 by restricting trade and commerce without the President's sanction as required under Article 304. However, the court held that Rule 38(B) was introduced under Section 23-C of the Mines and Minerals (Development and Regulation) Act, 1957, as a delegate of Parliament, and not under Article 304. Thus, the procedure under Article 304 does not apply, and the rule does not violate Articles 301 and 304.
2. Validity of Rule 38(B) under Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957:
The petitioners argued that Section 15 of the Act does not empower the State to prohibit the transport of sand outside the State. The court noted that previous judgments cited by the petitioners did not consider Section 23-C, which allows the State to make rules preventing illegal mining, transportation, and storage of minerals. The court concluded that Rule 38-B is valid as it derives power from Section 23-C.
3. Application of Section 23-C of the Mines and Minerals (Development and Regulation) Act, 1957:
The petitioners argued that Section 23-C only applies to illegal mining, transportation, and storage. The court disagreed, stating that the terms "transportation" and "storage" are distinct and not limited to illegal activities. The court referenced a similar case from the Andhra Pradesh High Court, which upheld a rule prohibiting the movement of sand across state borders. The court held that Section 23-C empowers the State to regulate the transport and storage of minerals, including sand.
4. Interpretation of the term "regulation" in Section 23-C:
The petitioners contended that "regulation" should not mean "prohibition." The court cited Supreme Court judgments stating that the term "regulation" can include prohibition when public interest is involved. The court held that the prohibition on transporting sand outside the State is a valid regulatory measure in the public interest.
5. Environmental impact and public interest considerations:
The court emphasized the environmental damage caused by indiscriminate sand mining, including the deepening of river beds, depletion of groundwater, and ecosystem degradation. The court noted that the rule aims to prevent such damage and protect the environment, which is a fundamental right under Article 21. The court held that the rule is justified from an environmental perspective.
6. Doctrine of Public Trust:
The court referenced the Supreme Court's principle that natural resources are held in trust for future generations. The court held that the State has a duty to conserve and protect natural resources, including sand, for the benefit of future generations. The rule aligns with this doctrine by preventing over-exploitation.
7. Relationship between Rule 38-A and Rule 38-B:
The court noted that Rule 38-B is a natural extension of Rule 38-A, which was introduced to regulate sand mining based on expert recommendations and upheld by the Supreme Court. Rule 38-B aims to further control the transport of sand to prevent environmental damage and ensure sustainable use.
Conclusion:
The court dismissed the writ petitions, upholding the validity of Rule 38-B. The rule was found to be constitutional, within the powers granted by the Mines and Minerals (Development and Regulation) Act, 1957, and justified by environmental and public interest considerations. The court emphasized the importance of conserving natural resources for future generations and the State's duty to regulate their use.
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2009 (4) TMI 1026
Issues involved: Challenge to conviction u/s 61(1)(a) of Punjab Excise Act, 1914.
The appellant was convicted for carrying illicit liquor in a container wrapped in a gunny bag in a truck. The Chemical Examiner confirmed the liquor was illicit. The Chief Judicial Magistrate sentenced the appellant to six months' imprisonment and a fine of Rs. 5,000. The Sessions Judge and High Court upheld the conviction. The appellant argued that the minimum sentence was introduced after the offense date, but the respondent contended that the relevant date was the conviction date, not the offense date.
Prior to the amendment, Section 61(1)(a) of the Act did not prescribe a minimum sentence, only a maximum of three years' imprisonment and a fine of up to Rs. 2,000. The appellant argued that the minimum sentence was introduced after the offense date, relying on Article 20(1) of the Constitution, which prohibits conviction and sentencing under ex post facto laws. The court considered the quantity of liquor seized and the time passed, upholding the conviction but limiting the sentence to time already served.
The judgment allowed the appeal to the extent of restricting the sentence to the period already undergone, discharging the bail bonds executed, and setting aside the previous orders.
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2009 (4) TMI 1025
Issues involved:
The judgment deals with the issue of adverse remarks made against a Judicial Officer by the High Court, affecting his future prospects and Annual Confidential Report (ACR) grading, leading to a challenge by the appellant regarding the justification of the remarks and directions made by the High Court.
Adverse Remarks and Directions by High Court:
The High Court, in its judgment dated 06.07.2006, remanded a case to the trial Court and made adverse remarks against the appellant, a Judicial Officer, regarding the handling of a suit, leading to concerns about the impact on his ACR grading and future prospects. The appellant sought expunction of these remarks, highlighting the lack of deliberate intent in any alleged lapses and emphasizing his consistent positive ACR ratings and recent promotion to a more responsible role.
Appellant's Defense and Explanation:
The appellant defended against the adverse remarks by pointing out the circumstances of the suit, including the plaintiff's opportunities to lead evidence and discrepancies in the arrangement of witness depositions. Additionally, the appellant highlighted his positive ACR history, recent promotion, and the potential detrimental effects on his career due to the remarks made by the High Court.
Judicial Restraint and Discipline:
The Supreme Court, after considering the appellant's explanation and relevant materials, found that the adverse remarks and directions by the High Court were unwarranted. Emphasizing the importance of judicial restraint and humility, the Court stressed the need to avoid harsh or disparaging remarks, especially when the officer in question has not had the opportunity to defend or explain his actions.
Legal Principles and Decision:
Referring to legal precedents, the Court held that the adverse remarks were unjustified and not necessary for the decision of the case. Following established principles, the Court expunged the offending remarks made against the appellant in the High Court's order, emphasizing the importance of fairness and justice in such matters. The judgment was limited to the expunging of the adverse remarks, with no costs imposed.
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2009 (4) TMI 1024
Title: Supreme Court of India dismisses special leave petitions
Citation: 2009 (4) TMI 1024 - SC
Judges: Mr. Justice D.K. Jain and Mr. Justice R.M. Lodha
Petitioner(s) represented by: Mr. P.V. Shetty, Sr. Adv., Mr. Vikas Malhotra, Adv., Mr. Gaurav Agrawal, Adv., Mr. B.V. Balaram Das,Adv. And Ms. Sarika Singh, Adv.
Respondent(s): None
Decision: Delay condoned. Special leave petitions dismissed.
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2009 (4) TMI 1023
The Supreme Court ordered that service is complete in both cases. Counter affidavit to be filed within four weeks. Matters listed for 10-7-2009. (2009 (4) TMI 1023 - SC)
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2009 (4) TMI 1022
The High Court of Delhi dismissed the appeal as the matter was covered by previous judgments on proposed questions of law related to the same assessee.
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2009 (4) TMI 1021
Issues involved: Challenge to order passed by Civil Judge regarding affidavit sworn before Notary for adducing evidence in a suit.
Summary:
The petitioners challenged the order passed by the Civil Judge, Junior Division, regarding the acceptance of an affidavit sworn before a Notary for adducing evidence in a suit. The Judge rejected the application stating that the affidavit must be sworn before Court machinery, not a Notary. The petitioners argued that Section 139 of the CPC allows affidavits sworn before a Notary to be treated as evidence. The respondents had differing views on the matter, with one supporting the Judge's decision and the other emphasizing the need for the Court to consider the nature of evidence and witness importance. The Judge's order was based on the belief that notarized affidavits are not allowed under Order 18, Rule 4 of the CPC.
The petitioners contended that Section 139 of the CPC permits affidavits sworn before a Notary to be accepted as evidence in court proceedings. The amendment to Section 139 was introduced to address the issue of courts refusing such affidavits. The Civil Manual also confirms that Notaries are authorized to administer oaths to deponents, making affidavits sworn before them admissible. The Judge's order was deemed incorrect and illegal at law, leading to its quashing and setting aside. The petitioners' affidavit was directed to be taken on record as evidence, and the suit was to proceed accordingly.
In conclusion, the High Court quashed the impugned order and directed the Civil Judge to proceed with the suit, ensuring its disposal within six months. The Court emphasized the admissibility of affidavits sworn before Notaries under Section 139 of the CPC, overruling the Judge's decision to reject such evidence.
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2009 (4) TMI 1020
Issues involved:
The judgment involves the legality of a notice issued under Section 148 of the Income Tax Act, 1961 for the assessment year 1996-97, challenging the reopening of assessment and the limitation period for such action.
Details of the Judgment:
Issue 1: Legality of Notice under Section 148:
The petitioner, a limited company engaged in the manufacture and sale of yarn, filed a writ petition to challenge a notice issued under Section 148 of the Income Tax Act, 1961 for the assessment year 1996-97. The assessing officer had completed the regular assessment under Section 143(3) of the Act, determining the total income of the petitioner. Subsequently, a notice was issued under Section 148 for reopening the assessment, alleging that income had escaped assessment. The petitioner contended that the reopening of assessment was barred by limitation u/s 147 of the Act.
Issue 2: Compliance with Disclosure Requirements:
The petitioner argued that the notice issued under Section 148 was beyond the prescribed period of four years from the end of the relevant assessment year. The assessing officer failed to provide a specific finding that income had escaped assessment due to the petitioner's failure to disclose all material facts necessary for the assessment. The petitioner had fully disclosed all material facts, including details of assets, lease agreements, and depreciation computations, during the original assessment proceedings u/s 143(3).
Judgment Summary:
The High Court examined the legality of the notice issued under Section 148 and the compliance with disclosure requirements by the petitioner. It was observed that the notice was issued after the expiry of the four-year limitation period, rendering it illegal and without jurisdiction. The assessing officer did not establish that income had escaped assessment due to the petitioner's failure to disclose material facts. The Court referred to previous judgments emphasizing the importance of fully and truly disclosing material facts for assessment purposes. Consequently, the impugned order was set aside, and the writ petition was allowed, with no costs incurred.
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2009 (4) TMI 1019
Legal Judgment Summary: Supreme Court dismissed civil appeal after condoning delay. (Citation: 2009 (4) TMI 1019 - SC)
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2009 (4) TMI 1018
Issues Involved:1. Classification of 'potato chips' under the Assam Value Added Tax Act, 2003. 2. Interpretation of Entry 80 of Part A of the Second Schedule. 3. Application of common parlance test vs. special meaning in statutory interpretation. Summary:Issue 1: Classification of 'potato chips' under the Assam Value Added Tax Act, 2003The core issue is whether 'potato chips' manufactured and sold by the petitioner Company under the brand names Lays and Uncle Chips fall under Entry 80 of Part A of the Second Schedule to the Assam Value Added Tax Act, 2003 (the Act) or under the residuary entry in the Fifth Schedule. The petitioner Company had classified 'potato chips' under Entry 80 and paid VAT at 4%, but the Commissioner of Taxes, Assam, classified it under the Fifth Schedule, attracting a 12.5% tax rate. The petitioner filed a revision petition u/s 81 of the Act against this order. Issue 2: Interpretation of Entry 80 of Part A of the Second ScheduleEntry 80 of Part A of the Second Schedule has undergone several amendments. Initially, it included "Processed or preserved vegetables & fruits." From 8.8.2005 to 4.12.2005, it excluded items like jam, jelly, pickle, etc. From 5.12.2005 to 15.10.2008, these items were included again. Finally, from 16.10.2008, 'potato chips' and other items were explicitly excluded. The petitioner argued that the inclusive definition of processed or preserved vegetables and fruits should cover 'potato chips' until the specific exclusion in 2008. The respondents argued that 'potato chips' are a snack item and not a processed vegetable, relying on the common parlance test and various judicial precedents. Issue 3: Application of common parlance test vs. special meaning in statutory interpretationThe Court considered whether 'potato chips' should be understood in its ordinary sense or if a special meaning should be applied. The Court noted that items like jam, jelly, and pickles, which are not ordinarily considered processed vegetables or fruits, were included in Entry 80, indicating a special or technical meaning. The Court also considered the Government of India's classification of 'potato chips' as a vegetable product under the Central Excise Tariff Act. The Court concluded that 'potato chips' should be included under Entry 80 of Part A of the Second Schedule until the specific exclusion in 2008. Conclusion:The Court held that 'potato chips' manufactured and sold by the petitioner Company fall under Entry 80 of Part A of Schedule II to the Assam Value Added Tax Act, 2003, and not under the residuary item in the Fifth Schedule. The revision petition was allowed, and the impugned order dated 10.9.2007 by the Commissioner of Taxes was set aside and quashed.
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2009 (4) TMI 1017
The Supreme Court of India dismissed an appeal against an interim order passed by the High Court of Allahabad, as a final judgment had been subsequently issued. The principle that all earlier interim orders merge into the final order was applied, causing the interim orders to cease to exist. Consequently, the appeal was found to be infructuous and dismissed. A Contempt Petition related to the case was also dismissed based on the same decision.
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2009 (4) TMI 1016
Issues involved: Impounding of insufficiently stamped document and determination of stamp duty and penalty u/s Bombay Stamp Act, 1958.
Impounding of document: The respondent filed a suit for recovery, relying on a document acknowledged by the petitioner. The document was found to be insufficiently stamped, and the respondent offered to pay penalty and deficit stamp duty. The document was impounded by the court, as per section 33 of the Bombay Stamp Act, which mandates impounding of inadequately stamped instruments by any person empowered to receive evidence.
Prohibition on admitting in evidence: Section 34 of the Act prohibits admitting inadequately stamped instruments in evidence. The court cannot determine the stamp duty payable on an instrument; this power lies with the Collector. The Civil Court's jurisdiction is limited to recording whether an instrument is duly stamped. If a document is not sufficiently stamped, it must be impounded, and a true copy sent to the Collector for adjudication.
Procedure for admitting document: After adjudication by the Collector and payment of deficit stamp duty and penalty, the document can be admitted in evidence. The court cannot read the document in evidence until compliance with stamp duty requirements. The trial court's determination of deficit stamp duty and penalty is without jurisdiction; only the Collector can make such determinations.
Court's order: The impugned order was modified to require the trial court to impound the document and forward a true copy to the Collector for adjudication. The respondent can pay deficit stamp duty and penalty, provide a certificate of compliance, and then the document can be admitted in evidence if duly proved and admissible. The court clarified that it did not adjudicate on the document's proof or evidentiary value. The writ petition was partly allowed in the specified terms.
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2009 (4) TMI 1015
Issues involved: Transfer of matrimonial case u/s Divorce Act, 1869 from Chengleput to Chennai or Thiruvallur.
The petitioner, wife of the respondent, sought transfer of the matrimonial case from Chengleput to Chennai Family Court due to difficulties in attending court in Chengleput and feeling unsafe. The respondent, an advocate, opposed the transfer, citing embarrassment in front of colleagues and advocating for transfer to Thiruvallur District Court instead.
The petitioner alleged difficulties in traveling to Chengleput and safety concerns, while the respondent, an advocate, argued against the transfer to Chennai Family Court, emphasizing embarrassment and proposing Thiruvallur District Court as an alternative.
The petitioner's counsel referred to a Supreme Court decision supporting transfer requests based on convenience, while the respondent's counsel cited an Orissa High Court decision denying transfer based on safety concerns alone. Previous decisions of the Madras High Court were also mentioned where transfer requests were allowed based on convenience.
The Supreme Court's stance on transfer requests was discussed, highlighting the need for valid grounds beyond convenience and the husband's responsibility to cover travel expenses. The Court emphasized the need to avoid misuse of leniency shown towards women in transfer petitions.
The Court considered the embarrassment the respondent would face in having his matrimonial issues dealt with in Chennai Family Court where he practices as an advocate, among colleagues and clients. Ultimately, the matrimonial case was transferred from Chengleput to Tiruvellore District Court for disposal, taking into account the circumstances of the case.
In conclusion, the Court directed the transfer of the matrimonial case to Tiruvellore District Court and disposed of the case without costs, closing the connected M.P.
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2009 (4) TMI 1014
Issues Involved:
1. Delegation of Powers u/s 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act.
2. Nature of Powers Exercised by District Magistrate or Chief Metropolitan Magistrate u/s 14.
3. Applicability of Precedents on Delegation of Powers.
Summary:
Delegation of Powers u/s 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act:
The appellants challenged the dismissal of their writ petition by the learned Single Judge, arguing that the powers u/s 14 of the said Act must be exercised solely by the District Magistrate and not by the Sub-Divisional Magistrate. They contended that the "District Magistrate" is a Persona Designata and cannot delegate these powers. The appellants relied on several judgments, including "Hari Chand Aggarwal v. The Batala Engineering Co. Ltd and Ors." and "State of M.P. v. Bhupendra Singh," to support their argument.
Nature of Powers Exercised by District Magistrate or Chief Metropolitan Magistrate u/s 14:
The court examined the provisions of Section 14, which empower the Chief Metropolitan Magistrate or District Magistrate to assist secured creditors in taking possession of secured assets. The court noted that these powers are purely executionery in nature and do not involve any quasi-judicial functions. The court referenced the judgment in "Trade Well and Anr. v. Indian Bank and Anr." to emphasize that the CMM/DM only needs to verify territorial jurisdiction and the issuance of notice u/s 13(2) of the said Act, without any adjudication.
Applicability of Precedents on Delegation of Powers:
The court distinguished the cases cited by the appellants, noting that those cases involved quasi-judicial or drastic powers requiring application of mind, unlike the executionery powers u/s 14 of the said Act. The court referred to the judgment in "Maharashtra State Financial Corporation v. Jaycee Drugs and Pharmaceuticals Pvt. Ltd. and Ors." to support the view that the District Magistrate is not a Persona Designata in this context.
Conclusion:
The court dismissed the appeal, holding that the District Magistrate or Chief Metropolitan Magistrate can delegate powers u/s 14 of the said Act, as these powers are executionery and do not involve quasi-judicial functions. The court rejected the appellants' request for continuation of interim protection.
Final Order:
The appeal stands dismissed, and the application for continuation of interim protection is rejected.
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2009 (4) TMI 1013
Issues involved: Criminal revision petition against conviction u/s 138 of Negotiable Instruments Act after Lok Adalat award.
Issue 1: Conviction u/s 138 of Negotiable Instruments Act after Lok Adalat award
The case involved a complaint u/s 138 of the Negotiable Instruments Act due to a dishonored cheque. The matter was referred to Lok Adalat where both parties agreed to a settlement, with the accused agreeing to pay a specified amount to the complainant. However, the Judicial Magistrate later convicted the accused under Section 138 and imposed a sentence, leading to an appeal before the Sessions Judge.
Details: The Lok Adalat award was considered final and binding, with no appeal lying against it. The accused failed to comply with the agreed settlement, leading to the Magistrate's conviction. The Sessions Judge granted a limited stay but directed the accused to pay the settlement amount as a condition.
Issue 2: Legal implications of Lok Adalat award and subsequent conviction
The key legal question was whether the Magistrate could convict the accused under Section 138 of the Negotiable Instruments Act post the Lok Adalat award. The defense argued that the Lok Adalat award should be treated as a civil court decree, entitling the complainant to execute it accordingly.
Details: The defense cited Section 21 of the Legal Services Authorities Act, emphasizing the finality and binding nature of Lok Adalat awards. The failure to comply with the award did not justify the Magistrate's conviction, as the award should have been executed like a civil court decree.
Issue 3: Judicial authority post Lok Adalat award
The question of the Magistrate's jurisdiction post the Lok Adalat award was raised. It was contended that the Magistrate, having become functus officio after the award, could not convict the accused under Section 138 of the Negotiable Instruments Act.
Details: The defense argued that the Magistrate's order was not sustainable in law post the Lok Adalat award. The accused's non-compliance with the settlement terms did not justify the Magistrate's conviction, as the award was deemed an executable decree.
In conclusion, the criminal revision petition was allowed, setting aside the Magistrate's conviction. The complainant was granted the liberty to file an Execution Petition to recover the settlement amount as per the Lok Adalat award, emphasizing the binding nature of the award in the eyes of the law.
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2009 (4) TMI 1012
Issues involved: Challenge to order of National Consumer Disputes Redressal Commission u/s 21(b) of Consumer Protection Act, 1986 regarding payment by insurance company to vehicle owner for accident damages.
Details of the Judgment:
1. Background: The appellant, an insurance company, challenged an order directing payment to the vehicle owner for damages incurred in an accident involving a heavy motor vehicle.
2. Accident Details: The vehicle, loaded with potatoes, met with an accident resulting in the death of the driver. The complainant claimed expenses for repair and interest paid for a loan obtained for repairs.
3. Complaint and Response: The complainant alleged deficiency in service by the insurance company and claimed a specific amount. The insurance company disputed the claim and conducted multiple surveys to assess damages.
4. Survey Reports: Various survey reports were submitted by both parties, with discrepancies in the assessment of damages to the vehicle. The insurance company relied on approved surveyors' reports to justify their assessment.
5. Consumer Forum Decisions: The District Forum found deficiency in service by the insurance company and ordered payment to the complainant. The State Commission and National Commission upheld this decision.
6. Legal Arguments: The insurance company argued based on Section 64-UM(2) of the Insurance Act, 1938, emphasizing the binding nature of approved surveyors' assessments.
7. Court's Analysis: The Supreme Court rejected the insurance company's contentions, noting the extensive damages to the vehicle as per survey reports. The court highlighted discrepancies in the survey assessments and upheld the consumer fora's decision.
8. Interpretation of Law: The court explained the provisions of Section 64-UM(2) and clarified that while surveyor reports are essential for claim settlement, they are not conclusive and can be deviated from by the insurer.
9. Final Decision: The court upheld the consumer fora's decision to award payment to the complainant, considering actual expenses incurred and interest paid. The appeal by the insurance company was dismissed with costs imposed.
10. Conclusion: The court criticized the insurance company for pursuing frivolous litigation and upheld the lower courts' decisions in favor of the complainant.
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2009 (4) TMI 1011
Issues Involved:
1. Conviction u/s 498A IPC.
2. Acquittal of co-accused.
3. Evaluation of evidence and inconsistencies.
4. Legal interpretation of Section 498A IPC and related provisions.
Summary:
1. Conviction u/s 498A IPC:
The appellants challenged the judgment of the Punjab and Haryana High Court which upheld their conviction u/s 498A IPC by the Additional Sessions Judge, Sonepat. The trial court had sentenced them to two years of rigorous imprisonment and a fine of Rs. 500 each. The prosecution's case was based on the complaint by Santosh Kumari, detailing dowry demands and cruelty by her husband and in-laws.
2. Acquittal of Co-Accused:
The High Court acquitted two co-accused, Om Prakash and Ishwar Devi, due to insufficient evidence. However, it upheld the conviction of the present appellants, noting that the evidence against them was adequate despite inconsistencies.
3. Evaluation of Evidence and Inconsistencies:
The appellants argued that the evidence from PWs 1, 5, and 6 was inconsistent and unreliable. The High Court acknowledged these inconsistencies but found the evidence sufficient to convict the appellants. The Supreme Court noted that the improvements in the evidence primarily related to appellant Nos. 2 & 3, leading to their acquittal. However, the evidence against appellant No. 1, Satish Kumar, was deemed clear and cogent.
4. Legal Interpretation of Section 498A IPC and Related Provisions:
Section 498A IPC deals with cruelty by the husband or his relatives. The Court discussed the legislative intent behind Section 498A and its relationship with Section 113B of the Indian Evidence Act, which presumes dowry death if cruelty is established within seven years of marriage. The Court emphasized that mere possibility of abuse of a law does not invalidate it, citing precedents like A. Thangal Kunju Musaliar v. M. Venkatichalam Potti and Budhan Choudhry v. State of Bihar.
Conclusion:
The Supreme Court upheld the conviction of appellant No. 1, Satish Kumar, but reduced his sentence to the period already undergone (more than 13 months). The appeals of appellant Nos. 2 & 3, Sunil Kumar and Satya Devi, were accepted, and their convictions were set aside due to insufficient evidence. The appeal was disposed of accordingly.
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2009 (4) TMI 1010
Interpretation and/or application of two circulars; one dated 21.9.1987, and the other dated 9.8.2000 - Scheme to Grant monetary compensation and/or Grant of appointment on compassionate ground to the dependents of those who have been killed in the terrorist attacks - Application seeking for appropriate directions - Prospective or Retrospective effect - father of the respondent was not a government servant. He was allegedly killed by extremists - No ex-gratia payment made in favour of the persons who were terrorist/virulent or listed criminal -
On or about 7.5.2003, the Government of Jharkhand, which came into being in terms of the provisions of the Bihar Reorganisation Act, 2000 took a policy decision that the matter relating to the appointment of the dependent of the deceased in the terrorist violence should be given effect to in respect of those persons who had been killed in violence after the date of formation of the State of Jharkhand, i.e., dated 15.10.2000.
In the light of the aforementioned resolution, the representation of the respondent was rejected in the meeting of the District Compassion Committee held on 5.4.2005 -
HELD THAT:- A circular letter providing for appointment on compassionate ground in case of death of a government servant cannot be extended in case of the dependents of the deceased who was not a government servant. A public employment must be offered to a person who is entitled therefor. All recruitments subject to just exceptions must be made in terms of the rules framed under the proviso appended to Article 309 of the Constitution of India.
A circular letter issued by the State cannot be issued de hors the constitutional scheme of making offer of public appointment. [See Official Liquidator vs. Dayanand & ors.[2008 (11) TMI 679 - SUPREME COURT] and State of Bihar vs. Upendra Narayan Singh & Ors. [2009 (3) TMI 1064 - SUPREME COURT].
Moreover, a benevolent circular, it is well known, cannot be extended to a case which was not contemplated by the circular itself.
Furthermore, in the matter of construction or application of subordinate legislation the rule of incorporation by reference should not be applied unless a clear case is made out therefor. The circular letter dated 21.9.1987 is an independent one. It operates in its own field. There is no scope of reading both the circulars together. Even if they could be read, the general circulars in regard to the appointment on compassionate ground which were again applicable to the cases of dependents of the deceased employees either for the purpose of consideration of the period during which such appointments were to be made or otherwise could not have been taken into consideration for the purpose of grant of benefit to which he was not otherwise entitled to.
Ordinarily, a subordinate legislation should not be construed to be retrospective in operation. The circular letter dated 7.5.2003 was given a prospective effect. The father of the respondent died on 19.5.2000. There is nothing to show that even circular dated 9.8.2000 had been given retrospective effect.
In any view of the matter, as the State of Jharkhand in the circular letter dated 7.5.2003 adopted the earlier circular letters issued by the State of Bihar only in respect of cases where death had occurred after 15.10.2000, i.e., the date from which the State of Jharkhad came into being, the High Court, in our opinion, committed a serious error in giving retrospective effect thereto indirectly which it could not do directly.
Reasons assigned by the High Court, for the reasons aforementioned, are unacceptable.
Therefore, the impugned judgment cannot be sustained, which is set aside accordingly. The appeal is allowed. However, in the facts and circumstances of the case, there shall be no order as to costs.
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2009 (4) TMI 1009
Issues Involved:
1. Validity of the plaintiffs' patent.
2. Disclosure obligations of the plaintiffs.
3. Public interest considerations in granting an injunction.
4. Balance of convenience in granting an injunction.
Detailed Analysis:
1. Validity of the Plaintiffs' Patent:
The plaintiffs, F. Hoffmann-La Roche Ltd. and OSI Pharmaceuticals Inc., claimed a patent for Erlotinib Hydrochloride, marketed as Tarceva. The defendant, Cipla Limited, challenged the validity of this patent, arguing that the patent was not novel and lacked an inventive step, citing prior art references such as EP'226 and the US patent US'498. The court found merit in the defendant's challenge, noting that the plaintiffs failed to demonstrate enhanced efficacy over the closest prior art. The court emphasized that under Section 3(d) of the Patents Act, 1970, the plaintiffs needed to show significant improvement in efficacy, which they did not.
2. Disclosure Obligations of the Plaintiffs:
The plaintiffs did not disclose their pending applications for Polymorph B of Erlotinib Hydrochloride to the Controller of Patents or the court. The court held that this non-disclosure was inconsistent with the requirement of full disclosure. The plaintiffs' subsequent application for Polymorph B, which was more stable and suitable for tablet form, raised questions about the validity of their initial patent for a combination of Polymorphs A and B. The court concluded that the plaintiffs' failure to disclose these facts impacted the decision on the patentability of the compound and raised a credible challenge to the validity of the patent.
3. Public Interest Considerations in Granting an Injunction:
The court considered the public interest in the availability of life-saving drugs. It noted that the plaintiffs' drug Tarceva was expensive and not easily accessible to the public, whereas the defendant's generic version, Erlocip, was significantly cheaper. The court held that in a country like India, where access to affordable life-saving drugs is crucial, the public interest in ensuring the availability of such drugs outweighed the plaintiffs' interest in enforcing their patent through an injunction.
4. Balance of Convenience in Granting an Injunction:
The court found that the balance of convenience did not favor the plaintiffs. The plaintiffs failed to establish a prima facie case for infringement, and the defendant raised a credible challenge to the validity of the patent. Additionally, the public interest in access to affordable medication further tilted the balance against granting an injunction. The court emphasized that the plaintiffs' non-disclosure of material facts and the pending application for Polymorph B significantly weakened their case.
Conclusion:
The court dismissed the appeal, holding that the plaintiffs failed to make out a prima facie case for an injunction. The defendant's challenge to the validity of the patent was credible, and the public interest in access to affordable life-saving drugs outweighed the plaintiffs' interest in enforcing their patent. The court also imposed costs of Rs. 5 lakhs on the plaintiffs, to be paid to the defendant within four weeks. The interim order was vacated, and the applications were disposed of accordingly.
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9911796707
