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Indian Laws - Case Laws
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2016 (3) TMI 1472
Enforcing appropriately the constitutional mandate as contained under the provisions of Articles 16(4-A), 16(4-B) and 335 of the Constitution of India or, in the alternative, directing the Respondents to constitute a Committee or appoint a Commission chaired either by a retired Judge of the High Court or Supreme Court in making - survey and collecting necessary qualitative data of the Scheduled Castes and the Scheduled Tribes in the services of the State for granting reservation in promotion.
Whether a court should issue a direction to effectuate an enabling constitutional provision which has to be exercised by the State in its discretion on being satisfied of certain conditions precedent?
HELD THAT:- There can be no doubt that certain constitutional duties are inferred from the various Articles of the Constitution and this Court has issued directions. Certain directions have been issued in S.P. Gupta [1981 (12) TMI 165 - SUPREME COURT] and Supreme Court Advocates-on-Record Association [1993 (10) TMI 352 - SUPREME COURT] (IInd Judges case) but they are based on principles of secure operation of legal system, access to justice and speedy disposal of cases. In All India Judges' Association and Ors. v. Union of India and Ors. [2001 (2) TMI 1023 - SUPREME COURT], the Court issued directions by stating that it is the constitutional obligation to ensure that the backlog of cases is decreased and efforts are made to increase the disposal of cases. Keeping in view the concept of constitutional silence or abeyance, guidelines were issued in Vishaka and Ors. v. State of Rajasthan and Ors. [1997 (8) TMI 456 - SUPREME COURT] and for the said purpose, reliance was placed on international Treaties, norms of gender equality and right to life and liberty of working women.
The Courts do not formulate any policy, remains away from making anything that would amount to legislation, rules and Regulation or policy relating to reservation. The Courts can test the validity of the same when they are challenged. The court cannot direct for making legislation or for that matter any kind of subordinate legislation. We may hasten to add that in certain decisions directions have been issued for framing of guidelines or the court has itself framed guidelines for sustaining certain rights of women, children or prisoners or under-trial prisoners. The said category of cases falls in a different compartment. They are in different sphere than what is envisaged in Article 16(4-A) and 16(4-B) whose constitutional validity have been upheld by the Constitution Bench with certain qualifiers.
The relief in the present case, when appositely appreciated, tantamounts to a prayer for issue of a mandamus to take a step towards framing of a rule or a Regulation for the purpose of reservation for Scheduled Castes and Scheduled Tribes in matter of promotions. In our considered opinion a writ of mandamus of such a nature cannot be issued.
The Writ Petitions, being devoid of merit, stand dismissed.
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2016 (3) TMI 1464
Jurisdiction of Delhi Special Police Establishment to inquire or investigate into any offence alleged to have been committed under the Prevention of Corruption Act, 1988 - Section 6A(1) of the Delhi Special Police Establishment Act, 1946 - HELD THAT:- The provisions of Section 6A(1) of the Delhi Special Police Establishment Act, 1946 has been held to be unconstitutional being violative of Article 14 of the Constitution of India by a Constitution Bench of this Court in DR. SUBRAMANIAN SWAMY VERSUS DIRECTOR, CENTRAL BUREAU OF INVESTIGATION & ANR. AND CENTRE FOR PUBLIC INTEREST LITIGATION VERSUS UNION OF INDIA [2014 (5) TMI 783 - SUPREME COURT]. The judgment of the Constitution Bench is however silent as to whether its decision would operate prospectively or would have retrospective effect. Though a large number of precedents have been cited at the Bar to persuade us to take either of the above views, as would support the case of the rival parties, we are of the considered view that this question should receive the consideration of a Constitution Bench in view of the provisions of Article 145(3) of the Constitution of India.
The provisions of Section 6A(1) do indicate that for officers of the level of Joint Secretary and above a kind of immunity has been provided for. Whether there can be a deprivation of such immunity by a retrospective operation of a judgment of the Court, in the context of Article 20 of the Constitution of India, is the moot question that arises for determination in the present case - having regard to the provisions of Article 145(3) of the Constitution of India, the aforesaid question referred to a larger bench for which purpose the papers may now be laid before the Hon'ble the Chief Justice of India on the administrative side.
Matter referred to Larger Bench.
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2016 (3) TMI 1462
Jurisdiction - power of Court under Section 34 of the Arbitration and Conciliation Act, 1996 to remit the matter to the arbitral tribunal after setting aside an arbitral award - HELD THAT:- A plain reading of Section 34 of the Act will show that parliament has not conferred any power of remand to the Court to remit the matter to the arbitral tribunal except to adjourn the proceedings as provided under sub-section (4) of Section 34 of the Act. The object of sub-section(4) of Section 34 is to give an opportunity to the arbitral tribunal to resume the arbitral proceedings or to enable it to take such other action which will eliminate the grounds for setting aside the arbitral award. This provision (sub-section(4)) cannot be invoked, once the arbitral Award is set aside.
The Court below has erred in law in setting aside the arbitral award without examining the matter as laid down in Section 34 of the Act - The matter is remitted to the Court of the Principal District Judge, Dharwad, for reconsideration in accordance with law - appeal disposed off.
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2016 (3) TMI 1461
Seeking revocation of suspension order based on the Government Circular issued in Letter No.13519/N/2015-1, dated 23.07.2015 - HELD THAT:- In the present case, the petitioner was placed under suspension on 26.08.2011 and the respondent had enhanced his subsistence allowance on 23.07.2012. Thereafter, only on 29.07.2013, he was issued with the charge memo to which it is made clear that he has to face an enquiry. Even after lapse of three years, the respondent has not passed a reasoned order of extension of suspension.
However, with regard to the order of suspension, it has been kept pending for a long time. Therefore, as per the judgment of the Hon'ble Apex Court, in the case of AJAY KUMAR CHOUDHARY VERSUS UNION OF INDIA THROUGH ITS SECRETARY & ANR. [2015 (6) TMI 592 - SUPREME COURT] and following the letter mentioned supra issued by the Government in this regard, this Court is of the view that the prolonged suspension is no longer permissible. Hence, this Court finds merit in the contention of the petitioner.
The respondent is directed to consider and pass appropriate orders on the petitioner's representation dated 24.02.2016 on merits and in accordance with law - Petition disposed off.
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2016 (3) TMI 1456
Seeking forbearing the respondents from enforcing the provisions of the amended Paragraph 26(2) of the Employees Provident Fund Scheme in so far as temporary and casual and site workers engaged by the members of the petitioner - HELD THAT:- Since the Hon'ble Supreme Court in J.P.Tobacco Products, etc., etc. v. Union of India & Others [1995 (4) TMI 320 - SUPREME COURT] has already dealt with amended paragraph 26(2) of the Employees' Provident Fund Scheme, 1952, the same cannot be challenged in the present Writ Petition and further as per Section 2(f) of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, the same is applicable even to casual workers. Therefore the first contention putforth on the side of the appellant/petitioner is sans merit.
It is an admitted fact that under Section 7-A of the Act, the appellant/petitioner is having unfettered right of raising its objection if any and the same right has also been given by the learned Single Judge and this Court need not make any observation with regard to that aspect.
Appeal dismissed.
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2016 (3) TMI 1455
Applicability of notification dated 22.3.2001 - courier service included in the class of establishments to which the EPF & MP Act or not - employer-employee relationship between the petitioner and other 11 agencies - petitioner disputed the liability on the ground that the petitioner had never employed 20 or more persons and hence, the EPF & MP Act is not applicable to the petitioner and requested to conduct an enquiry under Section 7A of the EPF & MP Act, to determine the question of applicability - Sections 2(f) and 2A of the EPF & MP Act - HELD THAT:- According to Clause 4, the agency shall be under obligation to deposit the entire sale proceeds of the day, without any deduction to the account of the petitioner on the very next day. As per Clause 8, the petitioner shall supply stationery to be used by the agency for delivery, booking and for administration for free of charge. The stationery to be supplied by the petitioner only be used for the delivery and booking of the documents. According to Clause 12, the agency shall keep a register of consignment notes issued by the petitioner and the balance stock, which shall be kept up to date at all times and shall be made available to the petitioner at all times for verification. As per Clause 13, the petitioner either himself or through his authorised representative shall be at liberty at all times to inspect and verify the premises and records of the agency and take copies of such records to ensure compliance with the various terms of the Agency Agreement.
According to Clause 19, the agency shall maintain the office records of all documents, control of consignment notes, ledger books, showing the amount due from the sundry debtors, collection statements, delivery run-sheets and stationeries in the proper or orderly manner and to the satisfaction of the petitioner. According to Clause 16, the agency shall not carry on the business of courier or its agency in his own name or in proprietorship or as director of a company nor shall any courier/agency be permitted to be operated from the place of business from which agency of Professional Courier is operated.
This Court is of the opinion that ultimate control; both the financial and human resources, are vested with the petitioner. So also, unity of management and control, functional integrity and unity of purpose, are obviously evident from the above clauses. The above findings are to be appreciated, in view of the definition under Section 2(f) of the EPF & MP Act.
There is no illegality or impropriety in any of the findings, in Exts. P7 and P9 orders and the respondents have correctly and properly appreciated all the evidence collected during the course of enquiry under Section 7A and tested the same with Sections 2(f) and 2A of the EPF & MP Act.
Petition dismissed.
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2016 (3) TMI 1453
Liability to pay a sum of Rs. 8,40,568/- in 40 equal installments payable within 7th of each month, starting from August, 2000 - petitioner assails the award passed by the Arbitrator under Section 7B of the Indian Telegraph Act, 1885, on the ground that the Arbitrator has passed an unreasoned award, more so, the award so passed is without jurisdiction - HELD THAT:- Appointment of the Arbitrator having not been done in consonance with the provisions contained under Section 7B of the Act, meaning thereby, it is the Central Government alone can appoint Arbitrator, the same having not been done in consonance with the said provisions the award so passed in Annexure-5 is without jurisdiction and therefore, cannot sustain in the eye of law.
Similar question came up for consideration in M/s. Fly Wings Travels (P.) Ltd. [1994 (4) TMI 406 - DELHI HIGH COURT] wherein, the Delhi High Court having come to the conclusion that the Arbitrator having not been appointed in consonance with the provisions contained under Section 7B of the Act, set aside the award passed by the said incompetent Arbitrator. In the present case the Arbitrator has not been appointed by the Central Government as required under Section 7B of the Act.
On perusal of the award indicates that no reason has been assigned, rather, the Arbitrator who is obliged under law to pass a reasoned award has resolved the dispute without assigning any reason. It is well settled law that in public law remedy when the order visits with civil consequences, natural justice required recording the reasons as they are bridge between the order and its maker to indicate how his mind was applied to the facts presented and the decision reached.
It is seen that under Section 7B, the award is conclusive but when the citizen complains that he was not correctly put to bill for the calls he had made and disputed the demand for payment, the statutory remedy opened to him is one provided under Section 7B of the Act. By necessary implication, when the arbitrator decides the dispute under Section 7B, he is enjoined to give reasons in support of his decision since it is final and cannot be questioned in a court of law. However, the only remedy available to the aggrieved person against the award is judicial review under Article 226 of the Constitution.
The appointment of Arbitrator, having been made, in derogation of the provisions contained under Section 7B of the Act and such Arbitrator having passed the award in Annexure-5 without assigning any reasons, the same cannot sustain - the impugned award passed by the Arbitrator in Annexure-5 is set aside and the matter is remitted back to the Central Government to adjudicate the dispute in consonance with Section 7B of the Act - Application allowed.
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2016 (3) TMI 1451
Approval of reconstitution of the Managing Committee as per the provisions contained under Rule 28(1) of the Orissa Education (Establishment, Recognition and Management of Private High Schools) Rules, 1991 - whether the reconstitution of the Managing Committee of the School in question has been done in conformity with the provisions of Rule 28 of 1991 Rules?
HELD THAT:- The reconstitution has to be made under Sub-Rule(1) of Rule 28 of 1991 Rules. As per Sub-Rule (2) of Rule 28 of 1991 Rules, the Headmaster of the school or the teacher-in-charge of Headmaster shall be Secretary of the Managing Committee in his ex-officio capacity. Under Sub-Rule (3) of Rule 28 of 1991 Rules, the Sub-Collector shall nominate the President from among the members specified in Clauses (a) to (d) of Sub-rule (1). Sub-Rule (4) of Rule 28 of 1991 Rules, says that the Inspector shall take all necessary steps to reconstitute the Managing Committee in respect of aided High School and of any such School which becomes aided. Therefore, pivotal role is being played by Inspector of School, who is to take all necessary steps to reconstitute the Managing Committed in respect of aided High Schools.
As it appears from the records, the Inspector of Schools instead of applying his mind independently submitted letter on 01.11.2012 recommending the proposal of Sri Sarat Kumar Mohapatra, senior most Asst. Teacher, who has been allowed to remain-in-charge of the School temporarily, for reconstitution of the Managing Committee to the Director, Secondary Education, Odisha, Bhubaneswar for approval of the Managing Committee. On the basis of such recommendation, the Director has passed the impugned order under Annexure-4 on 08.09.2014 - The 1991 Rules having been framed under the Rule making power under Orissa Education Act, 1969, has got its own statutory force and therefore, the authority has to act in adherence to the provisions contained under the 1991 Rules and for any deviation thereof, consequential order cannot sustain in the eye of law.
The action taken by the Inspector of School is not in consonance with the provisions of Sub-Rule(4) of Rule 28 of 1991 Rules. When a gross illegality has been committed by the authority for reconstitution of Managing Committee, which has been brought to notice of the Court by the present petitioner, without delving into the question of locus standi of the petitioner, this Court is of the considered view that the order passed under Annexure-4 for reconstitution of the Managing Committee of Bapujee Ashram Residential High School, Goradajhari in the district of Khurda under Rule 28(1) of 1991 Rules dated 08.09.2014 cannot sustain in the eye of law - the matter is remitted back to the District Education Officer, Khurda for submission of proposal afresh in-compliance to the Sub-Rule (4) of Rule 28 of 1991 Rules.
The writ petition stands disposed of.
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2016 (3) TMI 1450
Fake encounter - inherent power of the High Court for quashing the criminal proceedings against an offender who had settled the dispute with the victim - compoundable offence u/s section 320 of Indian Penal Code - Locus standi (the right or capacity to bring an action or to appear in a court/direct connection with the offence and only that person can file an application before court), to challenge the order - HELD THAT:- In the instant case, the applicant has invoked the power under Section 482 of Cr.P.C. to challenge the order of discharge dated 30.12.2014 whereby the learned Sessions Judge Gr. Bombay has discharged the respondent no. 1 of the offences under Sections 120B, 364, 365, 368, 341, 342, 384, 302, 218 r/w. 201 of IPC. It is not in dispute that the said order is not an interlocutory order and could be challenged by invoking the revisional jurisdiction of the High Court under Section 397 /401 of Cr.P.C. Hence, in the light of the law laid down by a three Judge Bench of the Apex Court in the case of Madhu Limaye [1977 (10) TMI 111 - SUPREME COURT] and which has been followed in Gian Singh and Mohit [2012 (9) TMI 1112 - SUPREME COURT], the powers under Section 482 cannot be resorted to in view of the said specific provision of the code for the redressal of the grievance particularly when the aggrieved party had already assailed the said order in revisional jurisdiction of this Court.
The Applicant had sought to invoke the power under section 482 of Cr.P.C. mainly on the ground that the Respondent No. 1 through powerful network of forces at his command has prevailed upon the Rubabuddin Shaikh to withdraw the revision application. The Applicant has alleged that the withdrawal appears to be suspicious, under threat, inducement and promise - It is no doubt true that the powers under sections 482 and 483 of the Cr.P.C. are wide. However, it is well settled that these powers should be exercised sparingly to prevent abuse of process of any court or otherwise to secure the ends of justice or to prevent misuse of judicial mechanism or miscarriage of justice. In the instant case, Rubabuddin, the brother of the deceased who is an aggrieved party and at whose instance the crime was registered had by application dated 5.10.2015 which was supported by his affidavit, sought leave to withdraw the revision application as well the application for condonation of delay. Since said Rubabuddin was not represented by an advocate, no order was passed on the said application on the said date. On 6.10.2015 said Rubabuddin had remained present alongwith his counsel and had once again sought leave to withdraw the said applications.
Locus standi (the right or capacity to bring an action or to appear in a court/direct connection with the offence and only that person can file an application before court) - HELD THAT:- The present case does not involve the issue of locus standi of a third party / stranger for setting the criminal law in motion. The issue in the present case is whether the applicant, who is a total stranger to the proceedings can invoke the powers under Section 482 of Cr.P.C. to challenge the discharge order. Hence, the decisions in Antulay [1984 (2) TMI 317 - SUPREME COURT] is not strictly applicable to the facts of the present case.
In Sulochana Devi [1992 (11) TMI 295 - ORISSA HIGH COURT] the Petitioner who was not a party to the proceedings had invoked the powers of the High Court under section 482 of the Cr.P.C. to challenge the order of issuance of proclamation under section 82 of the Code and attachment of the property. Raising the issue of locus standi, preliminary objection was raised to the maintainability of the application at the behest of the Petitioner. The Orissa High Court after considering the scope of section 482 of the Cr.P.C. as well as the decisions of the Apex Court in Madhu Limaye, Simerjeet Singh [1977 (10) TMI 111 - SUPREME COURT] and in the case of the Janata Dal V/s. H.S. Choudhary & Ors. [1992 (8) TMI 301 - SUPREME COURT] citation held that ordinarily, the aggrieved party, which is affected by any order has the right to seek redress by questioning the legality, validity or correctness of the order unless such party is a minor and in same person or is suffering from any other disability which law recognises as sufficient to permit another person e.g. next friend, to move the court in his behalf.
Reverting to the case in hand, it is not in dispute that the applicant is neither a victim nor an aggrieved person. He is not in any manner connected with the proceedings pending before the learned Sessions Court Greater Bombay. The Applicant has not suffered any prejudice and has not demonstrated that his legal rights are impaired or any harm /injury is caused to him or is likely to be caused. The Applicant has thus not been able to demonstrate that his legal right has been invaded so as to give him locus standi to challenge the order.
he Applicant who claims to be a socially responsible citizen has allegedly filed this application for preventing abuse of process of court. It is pertinent to note that though the alleged incident had occurred in the year 2005, and no case was registered against the respondent no. 1 and the other police officers, the applicant herein had not shown any interest to set the criminal law in motion. The said crime was registered only pursuant to the directions given by the Honourable Supreme Court in view of the letter of grievance made by Rubabuddin, the brother of the deceased.
In the instant case, the State had not challenged the order of discharge. nonetheless the aggrieved person, Rubabuddin Shaikh, the brother of the deceased Shorabuddin had challenged the said order in revision application (st) 413 of 2015 which was filed along with the application for condonation of delay being application No. 355 of 2015. As stated earlier this Court has allowed the aggrieved person to withdraw the said application after being satisfied that the request for withdrawal was voluntary and that the same was not made under threat, pressure, inducement or promise. Hence, this is not one of those rare cases which brings about a situation which is an abuse of the process of the Court, which necessitates exercise of inherent jurisdiction.
The application is dismissed.
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2016 (3) TMI 1437
Validity of sale deed - Maintainability of Suit for permanent injunction - time limitation - Suit for declaration against the present petitioners as well as respondents No.2, 3 and 4 claiming declaration of sale deeds executed by defendants No.1 and 2 in favour of defendants No.3, 4 and 5 (the present petitioners) as null and void - HELD THAT:- From reading of 53-A of Transfer of Property Act, it is clear that a prospective purchaser is entitled to protect his possession, only if, he has done something further in pursuance of the contract. In the present case, though the alleged agreements to sale and possession of the Respondent No.1 are disputed but even if, they are considered as it is, clear from the plaint that the Respondent No. 1 has done nothing in pursuance of the alleged agreements to sale. It is also not pleaded that the Respondent No.1 was ready and willing to perform his part of contract or was willing to get sale deed executed. It is also pertinent to mention that according to the proviso no such right is available against the purchaser for consideration without notice like the present petitioners. Hence, the Respondent No. 1 is not entitled to maintain the suit for permanent injunction u/s 53-A of the Transfer of Property Act.
Maintainability of suit for permanent injunction - HELD THAT:- In view of proviso to the Section 53-A of the Transfer of Property Act and also in view of section 41(h) of the Specific Relief Act, because the Respondent No.1 has not resorted to equally efficacious remedy i.e. by filing a suit for specific performance, hence the suit for permanent injunction was not maintainable.
It is not in dispute in the present case that the Respondent No.1 is not the owner of the suit land as there is no conveyance deed in his favour and the Respondent No. 1 is claiming his right on the basis of alleged agreements to sale. It cannot be disputed that in view of clear provision of section 54 of the Transfer of Property Act, an agreement to sale does not confer any title. Thus, if the Respondent No. 1 himself is not the owner of the suit property, how can he challenge the title of the other who acquired title by registered sale deed in his favour. It is settled position of law that a person can challenge the title of other, only if, he himself is having title in the suit property. Apart from it in view of the proviso to section 34 of the Specific Relief Act, until the Respondent No. 1 claims ownership or claim relief for specific performance for acquiring title for he is entitled to claim, in absence of the same, a mere suit for declaration as the present suit is clearly hit by the proviso to section 34 of the Specific Relief Act.
The question is, when the suit property and claim of the Respondent No.1 is the same, why was the relief prayed in the present suit not claimed/prayed in the previous suit, while the same could have been and should have been claimed in the previous suit and if the same was not claimed or omitted to be claimed, the subsequent suit would be clearly hit by the provisions of Order II Rule 2 CPC. In view of the aforesaid provision of law, present suit is clearly barred by law and hence, the plaint is liable to be rejected - The provisions of Order VI Rule 4-A of CPC are mandatory in nature and it is clear from the bare perusal of the suit, it is clear that there no necessary pleadings which are mandatorily required to be made in the plaint. Thus failure to comply with the aforesaid mandatory provisions of law would lead to rejection of the plaint.
Time Limitation - HELD THAT:- It is also clear that the present suit filed in the year 2011 to challenge the sale deeds of the year 1995 i.e. after 16 years is clearly barred by time, while the period of limitation is only 3 years. It is also not in dispute that the petitioners’ name in the revenue record were also recorded in the year 1995. Thus, the suit filed by the Respondent No.1 is clearly barred by limitation.
The manner in which the learned trial court has dealt with the judicial precedent relied upon by the petitioners is also not proper because it has merely been observed that those citations are not applicable in the present circumstances without any discussion. Even all objections, which are purely legal objections, are not considered and decided. This approach of the learned trial court clearly amounts to failure to exercise the jurisdiction vested in it by law - the suit filed by the Respondent No.1 is clearly barred by law and allowing its continuance would be gross misuse of process of law, hence the plaint deserves to be rejected and consequently the suit deserves to be dismissed.
The present civil revision stands allowed - The application preferred under Order VII Rule 11 of the Code of Civil Procedure, 1908 stands allowed and the plaint is rejected.
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2016 (3) TMI 1435
Liability of Stamp Duty payable by the developer and the allottees - bipartite agreement between the State and the developer - Sections 33/47(A) of the Indian Stamp Act, 1899 - HELD THAT:- Bereft of the required materials before the High Court, the Court was not justified in adjudicating the issue at the first instance when there is a statutory scheme provided for adjudication of such issues by the competent authorities concerned.
In that view of the matter, without expressing any further opinion, the judgment is set aside. The parties are relegated to the competent authority under the Indian Stamp Act in the State of Uttar Pradesh for the adjudication of the dispute - appeal disposed off.
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2016 (3) TMI 1432
Recalling of the 04 named witnesses declined - Common ground seeking recalling was that Sh. R.S. Hooda, Advocate , who was the leading defence counsel was critically ill during the trial and due to inadvertence, certain important questions, suggestions with respect to the individual roles and allegations against the respective petitioners, the injuries sustained by the witnesses, as well as the alleged weapons of offence used, had not been put to the said witnesses - HELD THAT:- In the opinion of this Court a case for recalling is made out to ensure fair opportunity to defend and uphold the concept of fair trial. The conceded fact that 148 accused persons are facing trial together, wherein the prosecution has examined 102 witnesses regarding different roles/weapons/injuries attributed to various accused qua various victims on the day of occurrence stretched over a period of time within a huge area of factory premises, does raise a sustainable inference that there was a confusion during the conduct of the trial leading to certain inadvertent omissions and putting proper suggestions on material aspects, which are crucial for the defence in a trial inter alia for an offence under Section 302 IPC, although the accused were represented by battery of lawyers with Sh. R.S. Hooda, Advocate being the lead lawyer.
The accused-petitioners are charged with heinous offences including under Section 302 IPC and it was stressed that the purpose of recalling is not to set up a new case or make them turn hostile but only to have a proper defence as it is to be judicially noticed that for lack of proper suggestions by the defence to the prosecution witnesses, the learned trial Courts at times tend to reject the raised defence on behalf of the accused. Some of such omissions and suggestions by way of illustration have been spelt out in the body of the petitions and some are stated to be withheld for avoiding any prejudice to the defence, nevertheless the stated purpose is not to render the prosecution witnesses hostile to the case of prosecution. Hence such inadvertent omissions and lack of suggestions have to be accepted to be bonafide and constituting a valid reason requiring the approach of the Court to be magnanimous in permitting such mistakes to be rectified, moreso when the prosecution, concededly, were permitted twice to lead additional evidence by invoking the provisions under Section 311 Cr.PC on no objection of the defence, after the closure of the prosecution evidence.
The accused-petitioners are in custody and having nothing to gain from delaying the trial. The reasons assumed for declining the recalling in the impugned order dated 16.11.2015 (P-1) are clearly misconceived and thus vitiated. It is apparent from the provisions of Section 311 Cr.PC as interpreted by the Courts that the exercise of the power to recall is not circumscribed by the stage at which such a request is made but is guided by what is essential for the just decision of the case.
The respective applications dated 30.11.2015 (P-4 in both the petitions) under Section 311 Cr.PC seeking recall of the named witnesses are allowed - Petition allowed.
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2016 (3) TMI 1429
Seeking expunction of certain offending/objectionable remarks in the judgment - inherent power and jurisdiction of this Court to expunge the adverse remarks made by a subordinate Court and considerations involved in expunging those remarks - HELD THAT:- A careful perusal of the extracts of the judgment would show that learned Additional Sessions Judge in its judgment not only criticized the conduct of the petitioner for not making just and fair investigation by making sweeping remarks against him, but also recommended further action against him and upon enquiry and relying upon the said observation/finding, the Sub-Divisional Officer (Police) has issued show-cause notice to the petitioner for initiating departmental/disciplinary action which has given cause of action to the petitioner to file the instant writ petition claiming expunction of above-stated adverse remarks and seeking quashment of impugned notice proposing to take action against the petitioner.
In the matter of MANISH DIXIT AND ORS. VERSUS STATE OF RAJASTHAN [2000 (10) TMI 970 - SUPREME COURT], it has been held by the Supreme Court that castigating remarks against any person should not be made and the Court is required to give opportunity of being heard in the matter in respect of the proposed remarks or strictures and the same is basic requirement, otherwise offending remarks would be in violation of the principles of natural justice.
The petitioner as a investigating officer has investigated the offence in question and charge-sheeted the accused persons and they were tried for the charge-sheeted offences and eventually they were convicted by the judgment rendered by learned Sessions Judge. Certain discrepancies have been pointed out by learned Sessions Judge in the investigation while delivering the judgment and reached to the conclusion that the petitioner tried to save the accused persons and further held that the counter case to S.T. No. 21/2014 was also investigated by the petitioner, whereas, it ought to have been investigated by other police officer and on that basis learned Additional Sessions Judge made offending and adverse remarks against the petitioner and also recorded that the inquiry be conducted against the petitioner and thereafter further action be taken against him.
In the present case, the offending remarks made by learned Additional Sessions Judge in judgment being unmerited and undeserving deserves to be expunged in the ends of justice - adverse remarks made by the learned Second Additional Sessions Judge, Sakti, against the petitioner are hereby expunged - petition allowed.
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2016 (3) TMI 1427
Seeking suspension of sentence during the pendency of the revision petition - applicability of Section 353 (6) Cr.P.C. would apply as envisaged by Section 387 Cr.P.C. - HELD THAT:- There are no ground for suspending the sentence awarded to the applicant. Even otherwise, the plea that convict can resort to remedy of revision without any necessity to surrender in compliance with the judgment delivered by the appellate court, is unacceptable - Even Section 397 leaves no room for doubt that while exercising revisional jurisdiction, this court may direct that execution of any sentence or order qua the accused be suspended and the accused if in confinement would be released on bail.
This court has no hesitation in holding that petitioner, who does not abide by the order of the lower appellate court and fails to surrender, his prayer in revisional jurisdiction for suspension of execution of the sentence would merit outright rejection - Application dismissed.
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2016 (3) TMI 1423
Procurement of coal for the thermal power projects of KPCL in the State of Karnataka - tri-partite agreement - price adjustments - HELD THAT:- The fuel supply agreement contemplated for price adjustments based on the variance in the properties of coal supplied compared to the guaranteed values specified in the contract. In other words, price adjustments were to be undertaken based on the variance in cross calorific value, ash content, size, moisture content etc. - there has not been any stipulation either in the joint venture agreement or the fuel supply agreement that deductions could be made based on other activities. In the joint venture agreement and in the fuel supply agreement there has been no indication that ₹ 90/- (Rupees ninety) only per MT could be attributable towards washing charges nor the contracts provided any deductions from the coal price payable on the basis that the coals have not been washed in the washery.
The fuel supply agreement does not stipulate a particular process for washing of coal. It was neither suggested that coal washing should be necessarily water-washing nor it was provided that dry-washed coal could not be accepted as washed coal - there are no stipulation in the joint venture agreement or the letter of award, which mandates that coal should, necessarily, be washed through the process of water-washing at washeries. Our understanding of the coal defined in those documents is that the coal would mean washed coal that meets certain stipulated parameters irrespective of the process that may be adopted in mining and washing such coal.
It is the settled law that when an action of the State is arbitrary or discriminatory and, thus, is violative of Article 14 of the Constitution of India, a writ petition is certainly maintainable, although ordinarily in the writ jurisdiction the High Court does not enforce the terms of a contract qua contract.
The Supreme Court of India in DWARKADAS MARFATIA & SONS VERSUS BOARD OF TRUSTEES OF THE PORT OF BOMBAY [1989 (4) TMI 315 - SUPREME COURT] held that every action of the authority must be subject to rule of law and must be informed by reason. If the State action, even in contractual matters, fails to satisfy the tests of reasonableness, it would be unconstitutional.
The agreement between the KPCL, EMTA and KEMTA is tripartite and an agreement of multiple contracts in the form of the joint venture agreement, the fuel supply agreement and the mining operation agreement - the coal supplied by the writ petitioner to KPCL met the parameters stipulated in the fuel supply agreement and such coal has been utilised in the thermal power stations of KPCL. It was not felt proper for KPCL to unilaterally effect deduction of ₹ 90/- (Rupees ninety) only, per MT towards washing charge against KEMTA. No adjudication has been undertaken by a competent judicial authority. In the absence of adjudication, it is impermissible for KPCL to unilaterally effect such withhold and deductions.
The report of CAG cannot be the sole basis for any liability being caused or for that matter the sole basis for the prosecution to be launched. However, mere drawing up of FIR by the CBI against unknown officials of KPCL, EMTA and KEMTA cannot provide legal basis or impetus for unilateral demand by KPCL for recovery of ₹ 52,37,00,000/- only. Such action is arbitrary and unsustainable in law.
The communications dated November 23, 2013 (Annexure-A) and January 29, 2014 (Annexure-B) notifying deduction of a sum of ₹ 90/-(Rupees ninety) only, per MT of coal are quashed - Petition allowed.
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2016 (3) TMI 1422
Bribery - Validity of continuation of the proceedings against the petitioner - legal evidence to prove the charges levelled against the petitioner or not - submission of petitioner is that the registration of second FIR in respect of very same transaction is in violation of Article 14, 20 and 21 of the Constitution of India - HELD THAT:- It is impermissible and consequently there can be no fresh investigation on receipt of subsequent information in respect of the same cognizable offence or same occurrence or incident giving rise to one or more cognizable offences. If we look at the FIR in Cr. Nos. 42/2010, 43/2010, 46/2010 and 57/2010, the offences alleged are one and the same. It discloses that accused Nos. 1, 2 and 3 hatched conspiracy to acquire 325 acres of land in Bandi kodigehalli village for the establishment of Special Economic Zone by M/s. ITASCA Software Development Pvt. Limited, of which, the petitioner is the Managing Director and in furtherance of the said conspiracy, all the accused acquired the lands through consent award without payment of the compensation to the land owners by forging the signatures and by giving bribe to accused Nos. 1 and 2. That is the only conspiracy set up by the prosecution even in Cr. Nos. 42, 43 and 46/2010. The offences alleged in FIR pertaining to Cr. No. 57/2010 are the same offences and conspiracy or part of the same conspiracy.
Offences covered by FIR in Crime No. 57/2010 is part of the same conspiracy, which culminated into the same series of acts forming the same transactions in which the offences alleged in the previous FIR were committed, wherein, the petitioner was summoned by issuance of notice under Section 160 Cr.P.C. on number of occasions and the documents were seized and necessary information was secured. The transactions in Cr. No. 57/2010 is same or part of the same transaction in Cr. Nos. 42/2010, 43/2010 and 46/2010 i.e., part of the same conspiracy to grab the lands of private persons without payment of compensation by forging consent letters of the land owners. There is no second conspiracy other than the above conspiracy.
Regarding the merits, as admitted, no Government money was involved for acquisition of land. The application of M/s. ITASCA Software Development Pvt. Limited was placed before the State High Level Clearance Committee by Karnataka Udyog Mitra headed by Chief Minister in the meeting of the committee and the application was approved. M/s. ITASCA Software Development Pvt. Limited was permitted to start Special Economic Zone in an area of 325 acres of land in Bandi kodigehalli village. The amount to be paid to the land owners was deposited by United Telecom Limited. - The case of the Lokayukta is that the amount deposited with M/s. Indu Builders and Developers to make ex gratia payment has been misused by accused Nos. 1 and 2, since M/s. Indu Builders and Developers is a benami company of accused Nos. 1 and 2. Accused Nos. 1 and 2 said to have received bribe to approve the application submitted by M/s. ITASCA Software Development Pvt. Limited. Nobody questioned the integrity of the petitioner for all these days. The consent award was passed through KIADB a Government agency. Not a single complaint cropped up with regard to acquisition of land and payment of compensation. For all these reasons, the continuation of proceedings against the petitioner is nothing but abuse of power and abuse of process of Court. As such, proceedings as against the petitioner are liable to be quashed.
Petition allowed.
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2016 (3) TMI 1407
Seeking compensation in the letter pending before the Finance Minister of Assam against its liability of Agricultural Income Tax for the assessment year 2014-15 - seeking adjustment of refund and interest - HELD THAT:- The petitioner is stated to have filed an application on 31-03-2014, under Section 39A of the Act before the Chief Secretary, Government of Assam, for remission of future tax liabilities with a copy endorsed to the Finance Minister of Assam. The respondent No. 4, however, did not consider the claim of the petitioner and passed the impugned Order of Assessment, dated 04-07-2015 and issued the impugned Notice of Demand, dated 01-09-2015 for the assessment year 2014-15. It is against the impugned order of assessment and the impugned notice of demand that this writ petition has been filed.
The writ petition is disposed by directing the respondent authorities to consider the application of the petitioner filed under Section 39A of the Act and consider the question of taking such necessary action for adjustment of the assessed refund and interest that may be due to the petitioner from the assessment year 1986-87 to the assessment year 1992-93 and to make a fresh assessment in respect of the assessment year 2014-15.
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2016 (3) TMI 1401
Right in the ancestral property - suit property as per the plaint was purchased by the grandfather of the plaintiff Sh. Tara Chand Chopra in the name of his son Sh. Vasudev Chopra and who is defendant no.1 in the present suit - no cause of action disclosed - bar under Section 4(1) of the Benami Transactions (Prohibition) Act, 1988 - HELD THAT:- The ratio of the judgment of the Supreme Court in the case of YUDHISHTER VERSUS ASHOK KUMAR [1986 (12) TMI 380 - SUPREME COURT] has been followed recently by the Supreme Court in its judgment in UTTAM VERSUS SAUBHAG SINGH & ORS. [2016 (3) TMI 1369 - SUPREME COURT] by extending the application to even coparcenary property inherited by a male Hindu from his paternal ancestor.
The suit is also barred by Section 4(1) of the Act, inasmuch as, as per the admitted facts stated in the plaint the suit property was purchased by Sh. Tara Chand Chopra in the name of his son Sh. Vasudev Chopra/defendant no.1. Once the property is purchased in the name of defendant no.1, defendant no.1 becomes the sole owner of the suit property unless the plaintiff is able to bring out a case within the exceptions to Section 4(1) of the Act, which are contained in Section 4(3) of the Act of existence of HUF or property being purchased in trust. The plaint does not show existence of any HUF being created after 1956 or HUF existing prior to 1956 which continued after 1956 - also, the plaint does not make any averment with respect to the property being purchased in trust by the grandfather Sh. Tara Chand Chopra in the name of his son Sh. Vasudev Chopra/defendant no.1.
The suit is therefore barred by the provision of Section 4(1) of the Act - suit dismissed.
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2016 (3) TMI 1400
Dishonor of Cheque - Friendly Loan - acquittal of the accused - Section 138 of the Negotiable Instrument Act - HELD THAT:- The learned Magistrate has found that there are circumstances available on record which reasonably indicate that a businessman like the appellant would not advance a friendly loan of ₹ 3,40,000/- to a stranger like the respondent and that too without there being any receipt obtained from the respondent acknowledging the receipt of a friendly loan of ₹ 3,40,000/- by him. The learned Magistrate has found that the evidence of the complainant that although the accused i.e., respondent No. 1 had issued a receipt to him, the original receipt was handed over back by him to the respondent, is not inspiring any confidence. The learned Magistrate has observed that such version of the complainant or the appellant is hard to be believed as nobody would return such a conclusive and direct proof on mere acceptance of confirmation letter which is also not drafted happily.
There are no perversity or arbitrariness in the learned Magistrate drawing a conclusion that the basic requirement of the offence punishable under Section 138 of the Negotiable Instrument Act that the cheque must be issued in discharge of a legally enforceable liability has not been proved beyond reasonable doubt. No doubt, there is a presumption that a cheque is issued in discharge of such a legally enforceable liability/debt, the facts and circumstances appearing in the evidence of the prosecution in this case go to show that the defence taken by the respondent that the cheque was for some other transaction is probable and therefore, one must say, the presumption has stood rebutted.
Appeal dismissed.
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2016 (3) TMI 1398
Dishonor of Cheque - acquittal of the accused - Sections 82 and 83 of Cr.P.C. - HELD THAT:- The presence of the petitioner is required before the Magistrate, before whom he is not ready to go and surrender. If the inherent powers are exercised to quash the proceedings against the person who do not respect the process of Court, it would amount to abuse of process of Court to protect such persons. Hence, it would be just and proper that the petitioner to surrender before the Magistrate who issued proclamation to secure his presence. He is at liberty to file application for discharge before the Magistrate on the ground that the main accused has already acquitted due to lack of evidence.
Petition dismissed.
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