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2006 (2) TMI 726
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... ... ..... that even in a case covered under Section 376(2)(f) IPC, imprisonment for life can be awarded, it is to be noted that minimum sentence of 10 years has been statutorily provided and considering the attendant circumstances the imprisonment for life in a given case is permissible. Neither the Trial Court nor the High Court has indicated any such factor. Only by applying Section 3(2)(v) of the Atrocities Act the life sentence was awarded. Therefore, the sentence is reduced to 10 years. The other question is legality of the compensation awarded. Since the State has not challenged the award of compensation, it is not open to it to question the legality of the award in the present appeal filed by the accused. Therefore, State's challenge to the legality and/or quantum of compensation awarded is without merit. The amount shall be paid to the victim if not already paid within a period of eight weeks. 18. With the modification of sentence as abovementioned, the appeal is dismissed.
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2006 (2) TMI 725
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... ... ..... e matter is discussed between the State Government and the High Court. We hope that the meeting for the said discussion will take place within four weeks. The State Government and the Registrar General, after the meeting, shall file affidavits. Copy of the order s hall be sent to the Registrar General and the Chief Secretary of the State. From the chart filed by Mr. Vijay Hansaria, learned senior counsel, before us, it seems that no steps have been taken in the State of Arunachal Pradesh for separation of Judiciary from the Executive. The State of Arunachal Pradesh and the High Court should also discuss the matter in relation to this issue. We hope that such a meeting will take place within four weeks. The Chief Secretary of the State of Arunachal Pradesh and the Registrar General of the High Court shall file affidavits within six weeks. Copy of this order shall be sent to the Chief Secretary of the State of Arunachal Pradesh. I.A.No.126 in W.P.(C) No.1022/1989 Heard in part.
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2006 (2) TMI 724
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... ... ..... eadings go to show that he had knowledge of the will from the date it was executed and had full knowledge of the date of death of Late Pt. Triyugi Narain. For the aforesaid reasons I find that this application is barred by limitation. Sri P.N. Saxena Senior Advocate, then made a prayer that this application should be treated as caveat in other applications on the ground that there is a will in favour of the applicant, the validity of which has not been considered by the Court. The prayer is allowed. The Testamentary Case is disposed of with the directions that this petition shall be treated as caveat in other testamentary suits. Sri J. Nagar states that the objections in testamentary case no. 28 of 2005 may be treated as rejoinder affidavit to the caveat of Sri Ram Singh. Let a copy be served on all other applicants namely in testamentary suit no. 2 of 1998, 15 of 1999, 6 of 2000, 7 of 2000 and let the plaintiffs in these suits file replication to the caveat of Sri Ram Singh.
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2006 (2) TMI 723
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... ... ..... er of Assessment was not correct and could claim refund on that basis even without filing an Appeal. 8. We are unable to accept this submission. Just such a contention has been negatived by this Court in Flock (India)'s case (supra). Once an Order of Assessment is passed the duty would be payable as per that order. Unless that order of assessment has been reviewed under Section 28 and/or modified in an Appeal that Order stands. So long as the Order of Assessment stands the duty would be payable as per that Order of assessment. A refund claim is not an Appeal proceeding. The Officer considering a refund claim cannot sit in Appeal over an assessment made by a competent Officer. The Officer considering the refund claim cannot also review an assessment order. 9. In view of the above findings, the impugned Order of the Commissioner (Appeals) is not correct and deserves to be set aside. I set aside the impugned Order and allow the department's appeal. (Pronounced on 7/3/06)
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2006 (2) TMI 722
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... ... ..... ctural services or any other services since they are providing host of services. This can be ascertained from the fact that they have written 2 letters dated 20th July, 2001 and 28th May, 2003 to the Suptd. of Service Tax, Varanasi. This did not get any response from the department which could have created some kind of confusion in the mind of the respondent. 5. Under these circumstances Order of the Commissioner (Appeals) is contradictory itself and it would be in the interest of justice that the matter be remanded back to the Commissioner (Appeals) to consider the submissions made by the respondents in respect of reasonable cause put forth, under Section 80 and come to a fresh conclusion on the imposition of penalty under Section 76. Order-in-Appeal is set aside to the extent by which it sets aside the penalty imposed under Section 76 and allow the appeal by way of remand to the Commissioner (Appeals) to decide the matter afresh. (Dictated and pronounced in the Open Court.)
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2006 (2) TMI 721
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... ... ..... m 16.9.1985 to 19.5.1987. He must have, thus, completed 240 days of service. The termination of his services without complying with the provisions of Section 25F of the Industrial Disputes Act was, thus, illegal. He, however, had unjustly been directed to continue in service by reason of an interim order. He has been continuing in service pursuant thereto. The appellant, in our opinion, cannot be made to suffer owing to a mistake on the part of the court. The respondent also cannot take advantage of a wrong order. In the peculiar facts and circumstances of the case, we, therefore, of the opinion that interest of justice would be sub-served if, in place of directing reinstatement of the services of the respondent, the appellant is directed to pay a sum of Rs. 10,000/- by way of compensation to him. It is directed accordingly. The orders under challenge are set aside. The appeal is allowed with the aforementioned directions and observations. There shall be no order as to costs.
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2006 (2) TMI 720
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... ... ..... For the above said reasons, the revision petition is allowed. and setting aside the acquittal of the respondent by the Appellate Court i.e. the III Additional Sessions Judge, D.K., Mangalore, in Criminal Appeal No. 42/2001, the conviction of the respondent for the offence punishable under Section 138 of the Negotiable Instruments Act as recorded by the Learned JMFC, IV Court, Mangalore, in judgment dated 27-2-2001 passed in C.C. No. 215/2000 is resorted. However, the sentence imposed by the Trial Court is set aside and instead, the respondent is sentenced to pay a fine of ₹ 80,500/- in default he shall undergo simple imprisonment for six months. If fine amount is realised, an amount of ₹ 80,000/- be paid to the revision petitioner as compensation. Two months time is granted to the respondent to pay the said amount in the Trial Court, failing which the Trial Court is directed to secure the presence of the respondent and to send him to undergo the default sentence.
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2006 (2) TMI 719
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... ... ..... d. v. U.T. Administration Chandigarh and Ors. which has been followed in C.W.P. 960 & 5874 of 1999 and C.W.P. No. 5009 of 1998 is set aside and orders dated 10.5.2001, 13.11.2000 & 13.9.2001 passed in C.W.P. No. 5561 of 2000, W.P. No. 19356 of 1998 & C.W.P. No. 10233 of 2000 are also set aside. Consequently, the appeals arising out of S.L.P.(c) Nos. 12794, 12987, 12935& 13449 of 2001; S.L.P.(c) No. 12995 of 2002, S.L.P.(c) No. 16503 of 2001 and S.L.P.(c) No. 18911 of 2002 are allowed and the cases are remitted back to the High Court for deciding each case on its own merit. Rest of the cases excepting S.L.P.(c) No. 22517 of 2002 i.e. appeals arising out of S.L.P.(c) Nos. 22515, 18978, 18353, 23941, 23737 & 23738 of 2002; S.L.P.(c) Nos. 14289, 2948, 3601, 9178& 5748 of 2003 and S.L.P.(c) Nos.13640-13641 of 2004 are accordingly disposed of and are also remitted back to the High Court for being decided in the light of the observations made above. No costs.
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2006 (2) TMI 718
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... ... ..... one appears for the defendants. No vakalatnama is filed. The plaintiff has tendered original compilation of documents which is taken on record and marked Exhibit-A collectively. Accordingly I pass the following order. 3. There shall be a decree for sum of ₹ 14,865,563/- with further interest at the rate of 6% p.a. from the date of the suit till payment and/or realisation. The plaintiffs are at liberty to withdraw the original documents on furnishing the xerox copies.
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2006 (2) TMI 717
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... ... ..... m-32 produced by the accused-Director to show that he or she had resigned from the company which was registered by the Registrar of Companies turned out to be a false and fabricated one. Further we do not know whether the petitioner was re-inducted as a Director of the company after the alleged resignation from the first accused-company which was registered by the Registrar of Companies. The Revisional Court cannot conduct a roving enquiry relating to the disputed facts. Under the above circumstances, this Court is not inclined to quash the criminal proceedings as regards the petitioner herein. The petitioner has to face the trial and establish her contention that she had already resigned from the first accused-company and was no longer in charge of and responsible for the conduct of the business of the first accused-company. 15. In the result, Crl. O.P. Nos. 34352 to 34359 of 2005 stand dismissed. Consequently, connected criminal miscellaneous petitions also stand dismissed.
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2006 (2) TMI 716
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... ... ..... the entire transaction is void and the debt is unenforceable. 25. Section 77(1), Companies Act prohibits the purchase of its own shares unless certain conditions mentioned therein are complied with and its violations is made punishable under Sub-section (4) of Section 77 of the Companies Act and since there are no conditions mentioned the said transaction is void under Section 23 of the Indian Contract Act. 26. So, I hold that a party to an illegal contract cannot invoke the aid of the Court to have such a contract carried into effect. 27. Further, there is an unexplained material alteration in respect of the month on Ex. P-3 cheque in question and that the glaring defect of alteration of the month is fatal to the complaint. The alteration in respect of the month is a material alteration and as per Section 87 of the Act Ex.P-3 would become void. 28. For all the foregoing reasons, I hold that the appeal is devoid of merits. 29. In the result, the Criminal Appeal is dismissed.
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2006 (2) TMI 715
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... ... ..... uestion as to whether a document should be sent for an expert scrutiny in a criminal case, inspiration cannot be drawn from the authorities laid down in the background of Civil Procedure Code. 14. The petitioner has filed the abovesaid criminal miscellaneous petitions seeking permission of the Appellate Court to send the documents for expert opinion in spite of the fact that he had chosen to admit his signature in the promissory notes just to elongate the appeal proceedings. Such tactics cannot be blessed by this Court. No useful purpose will also be served if those documents are sent for expert opinion. No necessity has arisen to interfere with the decision arrived at by the Appellate Court in the aforesaid criminal miscellaneous petitions. The criminal revision cases merit no consideration and therefore they are liable to be dismissed. 15. In the result, the criminal revision cases stand dismissed. Consequently, connected criminal miscellaneous petitions are also dismissed.
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2006 (2) TMI 714
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... ... ..... nt on 9-9-1997 and 13-9-1997. The CBI can collect the complaint from the SHO, Police Station. Kapashera dated 9-9-1997 and 13-9- 1997. The complainant will also provide photocopies of the complaint dated 9-9-1997 and 13-9-1997 in case the original complaint is not traceable in the Police Station. Since, the matter is pending from 1997 the CBI is directed to register the case and complete investigation within a period of three months from today. We further clarify that by the aforesaid directions we are not entering into the merits of the controversy of the case nor casting aspersions on anybody including the local police. 9. We also request the Delhi High Court to expedite the disposal of Contempt Petition CCP 307/1997 in any event not later than three months from today for which parties shall give co-operation. The Registry shall despatch copies of this order to the CBI and Delhi High Court forthwith. With the aforesaid direction the appeal is disposed of. Order accordingly.
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2006 (2) TMI 713
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... ... ..... e State of Tamil Nadu. In this regard, at this stage, the only prayer of the State of Tamil Nadu is that State of Kerala be directed not to obstruct it in carrying out strengthening measures, as suggested by CWC. We see no reason for the State of Kerala to cause any obstruction. 31. Under the aforesaid circumstances, we permit State of Tamil Nadu to carry out further strengthening measures as suggested by CWC and hope that State of Kerala would cooperate in the matter. The State of Kerala and its officers are restrained from causing any obstruction. After the strengthening work is complete to the satisfaction of the CWC, independent experts would examine the safety angle before the water level is permitted to be raised to 152 ft. 32. The writ petition and the connected matters are disposed of by permitting the water level of the Mullaperiyar dam being raised to 142 ft. and by permitting the further strengthening of the dam as aforesaid. A reproduction from ILR (Kerala Series)
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2006 (2) TMI 712
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... ... ..... under the provisions of DERA. BRPL as such had all the power with regard to the metering specifications, power to replace meters, etc. In addition, BRPL has the power to instal correct meter under Sections 20, 21, 22-24 and 26 of the Indian Electricity Act, 1910, Sections 14 to 16, 60 and 63 of DERA, Rule 10(2) of the Transfer Scheme, Sections 26 and 49 of the Electricity (Supply), 1948, Condition 22 and 23 of DRSU, Condition of Supply and Sections 14, 55, 163 and 185 of the Electricity Act, 2003. 63. Hence in our opinion, there is no legal vacuum. The learned Counsel for the respondent has relied on the judgments of the Supreme Court in The Mysore State Road Transport Corporation v. Gopinath Gundachar Char, AIR 1968 SC 464 (vide paragraph 3) and UPSEB v. City Board Mussoorie, (1985) 2 SCC 16 AIR 1985 SC 883 (at paras 7 and 9), and we agree that these decisions apply to the facts of this case. 64. There is no force in this appeal, and hence it is dismissed. Appeal dismissed.
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2006 (2) TMI 711
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... ... ..... views, but has the matter posted before a Fuller Bench for considering the question. If that is the position even with regard to a question of law, the position will be a fortiori with regard to a question of fact. If the Tribunal wants to take an opinion different from the one taken by an earlier Bench, it should place the matter before the President of the Tribunal so that he could have the case referred to a Full Bench of the Tribunal consisting of three or more members for which there is provision in the Income-tax Act itself." 9. In the light of the aforesaid decision of this Court, it is clear that the Tribunal completely erred in coming to the conclusion it did, at variance with and opposed to the conclusion of the Tribunal on the earlier occasion. In view of the foregoing conclusion, we answer the questions of law (1) and (3) in favour of the assessee. As we have answered question of law (1), it becomes unnecessary to answer the questions of law (2), (4) and (5).
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2006 (2) TMI 710
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... ... ..... rved. The reserved post will go into the hands of non-deserving candidate and in such cases it would be violative of the mandate of Articles 14 and 21 of the Constitution of India. The Scheduled Caste and Scheduled Tribe Certificate is not a bounty to be distributed. To sustain the claim, one must show that he/she suffered disabilities - socially, economically and educationally cumulatively. The concerned authority, before whom such claim is made, is duty bound to satisfy itself that the applicant suffered disabilities socially, economically and educationally before such certificate is issued. Any concerned authority issuing such certificates in a routine manner would be committing the dereliction of Constitutional duty. In the result, there is no merit in this appeal and it deserves to be dismissed with costs. The tribal certificate dated 7th August, 1992 procured by the appellant by misrepresentation of the facts is quashed and set aside. The appeal is dismissed with costs.
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2006 (2) TMI 709
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... ... ..... rd. In view of this statement, no further directions are required to be issued in this regard. 36. In the result, the petitions are allowed to the extent of quashing the collection of registration fees from the petitioners. Any amount received by the Corporation under this head shall be refunded within six weeks from the date of receipt of a copy of this order. In case of any further delay, the amount shall carry interest at the rate of 8% per annum. In so far as the challenge to revision of licence fee is concerned, the same is rejected. The petitions are disposed of accordingly. 37. At this stage, learned advocate for the petitioners requested that the order regarding licence fee may be stayed for a period of four weeks. The request of the learned advocate for the petitioners is accepted. By earlier interim order dated 11st August, 2005 and 19th October, 2005, the petitioners have been paying ad hoc licence fee to the respondents. Such arrangements shall continue till then.
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2006 (2) TMI 708
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... ... ..... back wages could be decided is only in a proceeding to whom a reference under Section 10 of the Act is made. To state that merely upon reinstatement, a workman would be entitled, under the terms of award, to all his arrears of pay and allowances would be incorrect because several factors will have to be considered, as stated earlier, to find out whether the workman is entitled to back wages at all and to what extent. Therefore, we are of the view that the High Court ought not to have presumed that the award of the Labour Court for grant of back wages is implied in the relief of reinstatement or that the award of reinstatement itself conferred right for claim of back wages" The position was recently reiterated by three-judge Bench in State of U.P. and Another v. Brijpal Singh (2005 (8) SCC 58). The orders of the Labour Court as affirmed by the High Court are indefensible, deserve to be set aside, which we direct. The appeals are allowed but without any order as to costs.
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2006 (2) TMI 707
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... ... ..... he appellants pertaining to their company based in USA and the show-cause notice issued after the amendment to the Rule 6(1) of the Service Tax Act is well taken ground. In terms of the amendment Rule 2(iv) introduced with effect from 16-8-2002, the recipient of the services in India is liable to pay service tax on the services provided by the non-resident company. Therefore, the show-cause notice dated 31-7-2002 issued through the Indian Embassy on 10-10-2002 without jurisdiction inasmuch as Rule 6(1) of the Service Tax Rules has been deleted from 16-8-2002. The show-cause notice having been served on 10-10-2002 hence the same is not sustainable. The CBEC in its circular No. 36/4/2001-CX, dated 8-10-2001 has also further reiterated that the services provided beyond the territorial waters of India are not liable to service tax. In the light of the above citations and the submissions made, the impugned order is not sustainable and the same is set aside by allowing the appeal.
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