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Indian Laws - Case Laws
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2012 (2) TMI 730
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... ... ..... directed that on the Commission's request for assistance both the Central Government and the State Governments shall render all possible assistance to the Commission to enable it to discharge its functions, as directed by this Court in its order. The Commission shall at the discretion of its Chairman be free to co-opt purposes of the enquiry to be undertaken by it. Such legal technical, experts as may be considered necessary by it for an effective and early completion of the assignment hereby made. d) The Commission is requested to submit its report within six months from the date of this order. e) Such recommendations be sent to the Registrar General of this Court in sealed covers. 62. The matter may appear before the appropriate Bench after being nominated by the Hon'ble the Chief Justice on the 7th August, 2012 for further consideration by this Court of the recommendations by the Law Commission and if necessary for further directions to be passed in these appeals.
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2012 (2) TMI 729
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... ... ..... and within Section 10(f) prohibiting the member of the Village Panchayat from having such an interest. 23. While considering Section 15(l) of the CP Municipalities Act which provided for the disqualifications to the elections of the Municipal Committees, this Court in Gulam Yasin Khan held that the purpose and the object of prescribing several disqualifications in that provision is to ensure the purity of the administration of the Municipal Committees and in that sense the different clauses of disqualifications should not receive unduly narrow or restricted construction. We also hold the view that the prohibition in Section 10 (f) should not receive unduly narrow or restricted construction. In what we have considered above, the answer to the first question must be in the affirmative and it must consequently be held that the Appellant has incurred disqualification under Section 10(f) of the 1994 Act. We hold accordingly. 24. Civil Appeal is dismissed with no order as to costs.
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2012 (2) TMI 727
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... ... ..... s Court has observed thus 12. ... In the present-day system, reliance is required to be placed on the opinion of the higher officer who had the opportunity to watch the performance of the officer concerned from close quarters and formation of his opinion with regard to the overall reputation enjoyed by the officer concerned would be the basis. 34. In view of the above discussion, we are of the opinion that the High Court was not justified in sustaining the orders passed by the Full Court of the same High Court. Accordingly, we allow this appeal, set aside the orders passed by the High Court. Since the Appellant has retired from service on attaining the age of superannuation, he is entitled to all the monetary benefits from the date of his notional posting as C.J.M. till his notional retirement from service on attaining the age of superannuation, as expeditiously as possible, at any rate, within four months from the date of receipt of a copy of this order. Ordered accordingly.
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2012 (2) TMI 726
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... ... ..... y like the plaintiff was not justified in demanding interest at the rate of 24% per annum from the defendant and that too without any detail as to the nature of the business. Wherefore, it is just and proper to award only 18% per annum from the date of pr-note till the date of suit and pendente lite, the interest could be at 12% per annum and post decreetal interest could be at 6% per annum on the principal amount of Rs.3,00,000/- (Rupees three lakhs only) and accordingly, the suit shall stand decreed as under The defendant shall pay a sum of Rs.3,00,000/-(rupees three lakhs) with interest at the rate of 18% per annum from the date of promissory-note till the date of suit and at 12% interest per annum from the date of suit till the date of decree and at 6% from the date of decree date till realization with proportionate costs throughout. 48. Accordingly, the appeal is allowed and the judgement and decree of the trial Court is set aside. However, there is no order as to costs.
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2012 (2) TMI 723
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... ... ..... on Shri Sanjeev Kumar and daughter in law Smt. Renu have been initiated vide DD No. 43/D dated 21.3.2011. A copy of the enquiry has been provided to the appellant's Advocate Shri R.N. Jain, but not to the appellant. The appellant also alleges that the Police have not properly enquired into his complaints. 4. Having heard the parties and perused the relevant documents on file, the Commission hereby directs the CPIO to provide a copy of the enquiry report to the appellant within seven days of receipt of this order. In so far as the appellant's allegations that proper enquiry has not been conducted by the Police into his complaints is concerned, there is no provision for redressal of grievances under the RTI Act. In case the appellant is not satisfied with the enquiry conducted in the matter by the Police, he may, if he so desires, take up the matter with the competent authority. With these directions/observations, the matter is disposed of on the part of the Commission.
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2012 (2) TMI 719
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... ... ..... ity, mere issuance of it and its dishonour does not constitute the offence. 35. In this appeal, a request is made to remand the case to the trial court for fresh evidence. It is not acceptable because in the fact situation, Section 167 of the Evidence Act would come into play which mandates 167. No new trial for improper admission or rejection of evidence-The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, if it shall appear to the court before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision. I am satisfied in view of this provision, even if there be any unjust admission or rejection of evidence, retrial is impermissible. The appeal fails and it is accordingly dismissed, confirming the impugned judgment.
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2012 (2) TMI 714
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... ... ..... pecific and there is no scope of implied authority for imposition of such tax or fee. It appears to us that the delegated authority must act strictly within the parameters of the authority delegated to it under the Act and it will not be proper to bring the theory of implied intent or the concept of incidental and ancillary power in the matter of exercise of fiscal power....” We need not examine the said issue, as we have found that the levy of conversion fee is not claimed in exercise of the powers under Section 7, but is in exercise of powers conferred under Sections 3, 4 & 5 of the Act read with Building Rules and 1960 Rules framed in exercise of the rule making power conferred under Section 22 of the Act. In view of the findings recorded above, we do not find any merit in the present writ petitions. Consequently, all the petitions are dismissed with liberty to the petitioners to seek conversion of the use of buildings in terms of the scheme framed under the Act.
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2012 (2) TMI 712
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... ... ..... sed. However, keeping in view the fact that some of the members of the Appellant may have built their houses on the sites allotted to them, we give liberty to the Appellant to negotiate with the Respondents for purchase of their land at the prevailing market price and hope that the landowners will, notwithstanding the judgments of the High Court and this Court, agree to accept the market price so that those who have built the houses may not suffer. At the same time, we make it clear that the Appellant must return the vacant land to the Respondents irrespective of the fact that it may have carved out the sites and allotted the same to its members. This must be done within a period of three months from today and during that period the Appellant shall not change the present status of the vacant area/sites. The members of the Appellant who may have been allotted the sites shall also not change the present status/character of the land. The parties are left to bear their own costs.
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2012 (2) TMI 711
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... ... ..... d circumstances and materials are seen examined on wrong interpretation of criminal breach of trust, and after entering a perverse finding thereof, the learned magistrate has proceeded to examine the offences under Section 420 and 468 of the IPC, it is necessary that the findings thereof also have to be examined afresh. The order of acquittal rendered in favour of the accused is liable to be interfered with, and I do so. In the result, setting aside the order of acquittal, the case is remitted for fresh disposal. The learned magistrate shall take note of the observations made above, and, after hearing the prosecution and also the counsel appearing for the accused, dispose the case afresh, in accordance with law, on the materials on record, as expeditiously as possible, at any rate, within a period of eight weeks from the date of receipt of the records. The accused is directed to appear before the court below on 28.03.2012. Revision is allowed. Send back the records forthwith.
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2012 (2) TMI 710
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... ... ..... 0 by Justice G.P. Singh). The Apex Court also opined that when language is plain and unambiguous and admits of only one meaning no question of construction of a statute arises, the Act speaks for itself. In the light of this legal position, I have no hesitation to hold that Rule 48 makes it mandatory for the accused to give declaration about his surrender after the conviction or about the fact regarding his remaining in custody. 9. Since Rule 48, in specific, was not brought to the notice of this Court in Kishore (supra), the said judgment is clearly distinguishable on this aspect. On the basis of aforesaid analysis, it is held that a revision petition against conviction is tenable only when it contains a declaration to the effect that the convicted person is in custody or has surrendered after the conviction except in cases where the sentence has been suspended by the Court below. The matter be posted before the regular bench on Thursday (9.2.2012) for further consideration.
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2012 (2) TMI 708
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... ... ..... some cost should have been imposed. For that purpose, though Annexure2 was found to be illegal and without jurisdiction, issued by the State Government, this Court has not passed any interim order in favour of the writ petitioner and as such we do not propose to impose any cost upon the writ petitioner. However, we may observe here that in any Public Interest Litigation, it is always desirable that a thorough research be done by the writ petitioner so as to assist the Court and particularly when it is a matter of State revenue. At this juncture, we further like to point out that the State of Jharkhand is a mineral rich State and the State itself without stay order passed by this Court prohibited itself from realising a huge amount of royalty and, therefore, more caution should have been taken by the writ petitioner before filing the writ petition and he should have tried to find out what was the interest of the public. 21. This writ petition is , accordingly, dismissed.
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2012 (2) TMI 704
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... ... ..... hasis to state that there was no impediment or disability in the way of the Respondents to execute the decree but the same was not done. Therefore, the irresistible conclusion is that the initiation of execution proceedings was indubitably barred by limitation. Thus analyzed, the reasons ascribed by the learned single Judge are absolutely unsustainable. The period of limitation stipulated under Article 136 of the Act could not have been condoned as has been so presumed by the learned single Judge. The reliance placed on the decision in Bharti Devi (supra) is totally misconceived inasmuch as in the said case, the execution proceeding was initiated for permanent injunction. No exception can be taken to the same and, therefore, reliance placed on the said decision is misconceived. 36. Ex. consequenti, the appeal is allowed, the order passed by the High Court in Civil Revision is set aside and that of the executing court is restored. The parties shall bear their respective costs.
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2012 (2) TMI 703
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... ... ..... pplication by the same party, with the prayer that the election to Central Council, held from the State of Uttarakhand be set aside and that fresh selection process be ordered. I.A. No. 9 is dismissed, with the liberty to that Petitioner to approach the court of competent jurisdiction, seeking appropriate relief and in accordance with law. 28. In view of the order of I.A. No. 9, I.A. No. 8 does not survive and is dismissed as such. 29. Transfer Petition (Civil) No. 736 of 2011 is also dismissed, with liberty to the Petitioner to pursue his remedy, if the cause of action survives, before the concerned High Court. 30. All Transfer Petitions and Interlocutory Applications for impleadment are hereby dismissed. Other applications do not survive for consideration. 31. Before we part with this judgment, we would like to place on record our appreciation for the valuable and able assistance rendered by the learned ASG and all counsel and assisting counsel appearing in the present PIL.
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2012 (2) TMI 701
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... ... ..... ss box, he was not confronted as per the defence taken by the petitioner, as argued, before the revisional Court as well as before this Court. It was never put to the complainant that the cheque in question was meant for Sunil Kumar and he has misused the same. The revisional court has also noticed that the case is fixed for evidence of the petitioner since May 2011 and after availing five adjournments, the instant application was moved. Even there was no suggestion to the complainant that the name and cheque had been filled up by him. On the other hand, the signatures on the cheque have been admitted by the petitioner. It is well settled that even if the amount, date, and other particulars are filled up by some other person with different ink accused) cannot escape his liability under Section 138 of the Negotiable Instruments Act, 1881, if he has admitted his signatures on the cheque in question. 8. Thus, no case is made out for quashing of the impugned orders. 9. Dismissed.
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2012 (2) TMI 678
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... ... ..... and dispense from the requirement of furnishing a bank guarantee in terms of our order dated 17.01.2012 The respondents have filed their reply to the prayers made in the application. After the matter was argued for quite some time, learned senior counsel, Sh. Gupta, appearing for the respondent State, on instructions would submit, that since the petitioners had the benefit of an interim order, passed by the High Court from October, 2007 till the date of the impugned order, the same may be continued till the disposal of the special leave petition. We appreciate the stand of the learned senior counsel. Accordingly, we modify our interim order only to the following extent - "That the directions issued by us directing the petitioners to furnish bank guarantee for 50% of the accrued tax liability/arrears need not be furnished by the petitioners/applicants during the pendency of the special leave petition." In terms of the aforesaid order, the application is disposed of.
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2012 (2) TMI 675
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... ... ..... defence to be decided by the court trying the case under the Negotiable Instruments Act. Since sufficient averments attracting of section 138 of the Negotiable Instruments Act are the foundation of the complaint and it is further averred that cheques were issued with mischievous, dishonest intention, knowingly and willingly to cheat the complainant-company. The arguments canvassed by the learned advocate for the applicant do not require any further deliberation in exercise of the powers under section 482 of the Code since quashing the complaint would not secure ends of justice but would result into miscarriage of justice. However, the court taking up the Negotiable Instruments Act cases shall not be influenced by the observation made hereinabove and shall dispose of all the cases within six months from the date of receipt of the writ/order of this court as they are pending since 1996. In the absence of merits, these applications are summarily rejected. No order as to costs.
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2012 (2) TMI 671
Ramlila maidan Incident - whether an order passed u/s 144 crpc by the authorities stands protected under the restriction clause of Article 19 of the Constitution of India or does it violate the rights of a peaceful sleeping crowd, invading and intruding their privacy during sleep hours - The basic requirements for passing an order u/s 144 CrPC can be passed against an individual or persons residing in a particular place or area or even against the public in general. Such an order can remain in force, not in excess of two months. The Government has the power to revoke such an order and wherever any person moves the Government for revoking such an order, the State Government is empowered to pass an appropriate order, after hearing the person in accordance with Sub-section (3) of Section 144 CrPC. the requirements of existence of sufficient ground and need for immediate prevention or speedy remedy is of prime significance. In this context, the perception of the officer recording the desired/contemplated satisfaction has to be reasonable, least invasive and bona fide. The restraint has to be reasonable and further must be minimal. Such restraint should not be allowed to exceed the constraints of the particular situation either in nature or in duration. The most onerous duty that is cast upon the empowered officer by the legislature is that the perception of threat to public peace and tranquility should be real and not quandary, imaginary or a mere likely possibility.
Test of 'proximate and direct nexus with the expression' - the Court also has to keep in mind that the restriction should be founded on the principle of least invasiveness i.e. the restriction should be imposed in a manner and to the extent which is unavoidable in a given situation. The Court would also take into consideration whether the anticipated event would or would not be intrinsically dangerous to public interest.
The restriction must be provided by law in a manner somewhat distinct to the term 'due process of law' as contained in Article 21 of the Constitution. If the orders passed by the Executive are backed by a valid and effective law, the restriction imposed thereby is likely to withstand the test of reasonableness, which requires it to be free of arbitrariness, to have a direct nexus to the object and to be proportionate to the right restricted as well as the requirement of the society, for example, an order passed u/s 144 CrPC. This order is passed on the strength of a valid law enacted by the Parliament. The order is passed by an executive authority declaring that at a given place or area, more than five persons cannot assemble and hold a public meeting. There is a complete channel provided for examining the correctness or otherwise of such an order passed under Section 144 CrPC and, therefore, it has been held by this Court in a catena of decisions that such order falls within the framework of reasonable restriction.
The distinction between 'public order' and 'law and order' is a fine one, but nevertheless clear. A restriction imposed with 'law and order' in mind would be least intruding into the guaranteed freedom while 'public order' may qualify for a greater degree of restriction since public order is a matter of even greater social concern. 'security of the state' is the paramount and the State can impose restrictions upon the freedom, which may comparatively be more stringent than those imposed in relation to maintenance of 'public order' and 'law and order'.
HELD THAT - In the present case, the State and the Police could have avoided this tragic incident by exercising greater restraint, patience and resilience. The orders were passed by the authorities in undue haste and were executed with force and overzealousness, as if an emergent situation existed. The decision to forcibly evict the innocent public sleeping at the Ramlila grounds in the midnight of 4th/5th June, 2011, whether taken by the police independently or in consultation with the Ministry of Home Affairs is amiss and suffers from the element of arbitrariness and abuse of power to some extent. The restriction imposed on the right to freedom of speech and expression was unsupported by cogent reasons and material facts. It was an invasion of the liberties and exercise of fundamental freedoms. The members of the assembly had legal protections available to them even under the provisions of the CrPC. Thus, the restriction was unreasonable and unwarrantedly executed. The action demonstrated the might of the State and was an assault on the very basic democratic values enshrined in our Constitution. Except in cases of emergency or the situation unexceptionably demanding so, reasonable notice/time for execution of the order or compliance with the directions issued in the order itself or in furtherance thereto is the pre-requisite. It was primarily an error of performance of duty both by the police and Respondent No. 4 but the ultimate sufferer was the public at large.
It is nobody's case that the directions issued by the appropriate authority as well as the Police had not been carried out by the organisers. It is also nobody's case that the conditions imposed in the letters granting permission were breached by the organisers at any relevant point of time. Even on 3rd June, 2011, the Deputy Commissioner of Police, Central District, who was the officer directly concerned with the area in question, had issued a restricted circular containing details of the arrangements, the objectives and the requirements which the deployed forces should take for smooth organization of the camp at Ramlila Maidan. The threat of going on a hunger strike extended by Baba Ramdev to personify his stand on the issues raised, cannot be termed as unconstitutional or barred under any law. It is a form of protest which has been accepted, both historically and legally in our constitutional jurisprudence. The order passed u/s 144 CrPC does not give any material facts or such compelling circumstances that would justify the passing of such an order at 11.30 p.m. on 4th June, 2011. There should have existed some exceptional circumstances which reflected a clear and prominent threat to public order and public tranquility for the authorities to pass orders of withdrawal of permission at 9.30 p.m. on 4th June, 2011. What weighed so heavily with the authorities so as to compel them to exercise such drastic powers in the late hours of the night and disperse the sleeping persons with the use of force, remains a matter of guess. Whatever circumstances have been detailed in the affidavit are, what had already been considered by the authorities concerned right from 25th May, 2011 to 3rd June, 2011 and directions in that behalf had been issued. Exercise of such power, declining the permission has to be in rare and exceptional circumstances, as in the normal course, the State would aid the exercise of fundamental rights rather than frustrating them. The mere change in the purpose or in the number of persons to be gathered at the Ramlila Maidan simplicitor could hardly be the cause of such a grave concern for the authorities to pass the orders late in the night. In the Standing Order issued by the Police itself, it has been clarified that wherever the gathering is more than 50,000, the same may not be permitted at the Ramlila Maidan, but they should be offered Burari ground as an alternative. This itself shows that the attempt on the part of the authorities concerned should be to permit such public gathering by allotting them alternative site and not to cancel such meetings.
B.S. Chauhan, JJ - I respectfully agree with all the observations and the findings recorded by my colleague and I also concur with the observation that the findings recorded on the sufficiency of reasons in the order
There was no gossip or discussion of something untrue that was going on. To the contrary, it was admittedly an assembly of followers, under a peaceful banner of Yogic training, fast asleep. The assembly was at least, purportedly, a conglomeration of individuals gathered together, expressive of a determination to improve the material condition of the human race. The aim of the assembly was prima facie unobjectionable and was not to inflame passions. It was to ward off something harmful. What was suspicious or conspiratory about the assembly, may require an investigation by the appropriate forum, but to my mind the implementation appears to have been done in an unlawful and derogatory manner that did violate the basic human rights of the crowd to have a sound sleep which is also a constitutional freedom, acknowledged under Article 21 of the Constitution of India.
RIGHT TO SLEEP - It is believed that a person who is sleeping, is half dead. His mental faculties are in an inactive state. Sleep is an unconscious state or condition regularly and naturally assumed by man and other living beings during which the activity of the nervous system is almost or entirely suspended. It is the state of slumber and repose. It is a necessity and not a luxury. It is essential for optimal health and happiness as it directly affects the quality of the life of an individual when awake inducing his mental sharpness, emotional balance, creativity and vitality. Sleep is, therefore, a biological and essential ingredient of the basic necessities of life. If this sleep is disturbed, the mind gets disoriented and it disrupts the health cycle.
HELD THAT:- In Present case, as a sleeping crowd cannot be included within the bracket of an unlawful category unless there is sufficient material to brand it as such. The facts as uncovered and the procedural mandate having been blatantly violated, is malice in law and also the part played by the police and administration shows the outrageous behaviour which cannot be justified by law in any civilized society.
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2012 (2) TMI 663
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... ... ..... was directed not to be recovered. When this appeal was admitted, stay as prayed by the appellant was declined, but it was made clear that the payment made by the appellant pursuant to the judgment of the High Court will be subject to the decision of appeal. Mr. Mariarputham, learned counsel for the appellant submitted that the appeal is canvassed basically in view of the principle involved. In view thereof, although the appeal is allowed, the additional pension paid to the first respondent as the President of the State Commission till the end of February 2012, will not be recovered from him. However, from March, 2012 onwards the first respondent shall be entitled to receive pension only for the service rendered by him as a High Court Judge. In view of divergence of opinion in terms of separate judgments pronounced by us in this appeal today, the Registry is directed to place the papers before Hon’ble the Chief Justice for appeal being assigned to an appropriate Bench.
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2012 (2) TMI 662
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... ... ..... his Court has been followed by the High Court of Madras in Kotak Mahindra Bank Ltd. v. Sivakama Sundari S. Narayana S.B. Murthy (2011) 6 CTC 11. That Court observed as under "25. In the Absence of any provision in the 1996 Act, requiring a Court to pass a decree in terms of the award (except in terms of Section 34) and in the absence of any provision in the 1996 Act making the Arbitral Tribunal a Court which passed the decree and in the absence of any provision anywhere making the court within whose jurisdiction an award was passed as the court which passed the decree, it is not open for any executing Court (i) either to demand transmission from any other Court; (ii) or to order transmission to any other Court." 5. In the light of the above decisions, the prayer made in the present petition is declined. It will be open to the DH to approach the competent Court in Bangalore, Karnataka for execution of the Award in accordance with law. 6. The petition is disposed of.
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2012 (2) TMI 657
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... ... ..... ether the evidence to be adduced in respect of the part played by them shall be sufficient to warrant a conviction or not. On the other hand, it has been made clear in the complaint that all of them participated in the marriage and all of them played a vital role in the marriage knowing fully well that the marriage of the first accused with the respondent/complainant was subsisting. Statements have also been recorded to the effect that they had also stated since the respondent/complainant could not give birth to a male child, they had to go for the second marriage of the first accused. If all these aspects are taken into consideration, we have to come to the necessary conclusion that the said contention of the petitioners as a ground for quashing the complaint also deserves rejection. 16. For all the reasons stated above, this Court decides the petitions against the petitioners and dismisses both the petitions. Accordingly, both the criminal original petitions are dismissed.
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