Orders and Judgments December 08 to December 22, 2018

No law or ordinance is mightier than understanding.

PLATO, 1ST - CENTURY GREEK PHILOSOPHER

NEWS – SUPREME COURT

  • State of Uttar Pradesh v. Wasif Haider and Ors
  • Present appeals by special leave arise out of the common impugned judgment passed by the High Court, whereby the High Court has reversed the judgment of conviction passed by the Additional Sessions Judge under Sections 302 read with 149, 307 read with 149, 148 of Indian Penal Code, 1860 (IPC) and Section 7 of Criminal Law Amendment Act, 1932. The High Court on analysis of evidence found that, not only there exists various contradictions in the testimonies of the prosecution witnesses but there exists lack of corroboration of the same. While passing the order of acquittal the High Court observed that the case of prosecution was ridden with flaws in investigation, most importantly the identification of the Accused was highly suspicious and the TIP was held to be "too good to be believed". Accordingly, the High Court through the impugned judgment acquitted the Accused-Respondents.In an appeal against acquittal, the appellate Court would interfere only where there exists perversity of fact and law. Further, the presumption of innocence is further reinforced against the acquitted-accused by having a judgment in his favor. In Mulla v. State of U.P., this Court laid down that a TIP has to be conducted timely, if not, then the delay has to be explained and such delay should not cause exposure of the accused. However, in the case at hand, not only there was a delay in conducting the TIP, but no explanation for the same has been forthcoming from the prosecution. This creates a considerable doubt about the genuineness of the TIP.
  • The prosecution has also failed to adduce any independent witness. It is surprising that although the charges have been framed under Section 307 of IPC, the prosecution has absolutely failed to substantiate the charges by means of evidence. The trial Court has erred in convicting the Respondents for the aforesaid offence, without any evidence to prove the same.
  • In the instant, the prosecution has failed to link the chain of circumstances so as to dispel the cloud of doubt about the culpability of the Accused-Respondents. It is a well settled principle that a suspicion, however grave it may be cannot take place of proof. In the present case, the cumulative effect of the aforesaid investigative lapses has fortified the presumption of innocence in favor of the Accused-Respondents. In such cases, the benefit of doubt arising out of a faulty investigation accrues in favor of the accused.
  • The lapses in the investigation have disabled the prosecution to prove the culpability of the accused. The Accused cannot be expected to relinquish his innocence at the hands of an inefficacious prosecution, which is ridden with investigative deficiencies. The benefit of doubt arising out of such inefficient investigation must be bestowed upon the accused. There exists no perversity in the judgment of the High Court. Further, in the absence of compelling reasons, present Court is not keen to entertain these appeals challenging the order of acquittal. Appeals dismissed.
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  • Manohar Lal Sharma v. Narendra Damodardas Modi and Ors
  • The issues arising in present group of writ petitions, filed as Public Interest Litigations, relate to procurement of 36 Rafale Fighter Jets for the Indian Airforce. The procurement in question, which has been sought to be challenged, has its origins in the post-Kargil experience that saw a renewed attempt to advance the strategic needs of the armed forces of the country.The tender is not for construction of roads, bridges, etc. It is a defence tender for procurement of aircrafts. The parameter of scrutiny would give far more leeway to the Government, keeping in mind the nature of the procurement itself. This aspect was even emphasized in Siemens Public Communication Networks Pvt. Ltd. and Anr. v. Union of India and Ors. The triple ground on which such judicial scrutiny is permissible has been consistently held to be "illegality", "irrationality" and "procedural impropriety".
  • The extent of permissible judicial review in matters of contracts, procurement, etc. would vary with the subject matter of the contract and there cannot be any uniform standard or depth of judicial review which could be understood as an across the board principle to apply to all cases of award of work or procurement of goods/material. The scrutiny of the challenges therefore, will have to be made keeping in mind the confines of national security, the subject of the procurement being crucial to the nation's sovereignty.
  • There is no occasion to really doubt the process, and even if minor deviations have occurred, that would not result in either setting aside the contract or requiring a detailed scrutiny by the Court. Joint exercises have taken place, and that there is a financial advantage to the nation. These are contracts of defence procurement which should be subject to a different degree and depth of judicial review. Broadly, the processes have been followed. The need for the aircrafts is not in doubt. The quality of the aircraft is not in question. It is also a fact that, the long negotiations for procurement of 126 MMRCAs have not produced any result, and merely conjecturing that the initial RFP could have resulted in a contract is of no use. It will not be correct for the Court to sit as an appellate authority to scrutinize each aspect of the process of acquisition.
  • The process was concluded for 36 Rafale fighter jet aircrafts on 23rd September, 2016. Nothing was called into question, then. It is only taking advantage of the statement by the ex-President of France, Francois Hollande that these set of petitions have been filed, not only qua the aspect which formed the statement, that is, the issue of IOPs but also with respect to the entire decision-making process and pricing.
  • The Government has not disclosed pricing details, other than the basic price of the aircraft, even to the Parliament, on the ground that sensitivity of pricing details could affect national security, apart from breaching the agreement between the two countries. The pricing details have, however, been shared with the Comptroller and Auditor General (hereinafter referred to as "CAG"), and the report of the CAG has been examined by the Public Accounts Committee ("PAC"). Only a redacted portion of the report was placed before the Parliament, and is in public domain. The Chief of the Air Staff is stated to have communicated his reservation regarding the disclosure of the pricing details, including regarding the weaponry which could adversely affect national security.
  • The pricing details are stated to be covered by Article 10 of the IGA between the Government of India and the Government of France, on purchase of Rafale Aircrafts, which provides that protection of classified information and material exchanged under the IGA would be governed by the provisions of the Security Agreement signed between both the Governments on 25th January, 2008. Despite this reluctance, the material has still been placed before the Court to satisfy its conscience.
  • Once again, it is neither appropriate nor within the experience of this Court to step into this arena of what is technically feasible or not. The point remains that Defence Procurement Procedure, (DPP 2013) envisages that the vendor/OEM will choose its own Indian Offset partners (IOPs). In this process, the role of the Government is not envisaged and, thus, mere press interviews or suggestions cannot form the basis for judicial review by this Court. There is no material on record to show that present is a case of commercial favouritism to any party by the Indian Government, as the option to choose the IOP does not rest with the Indian Government.
  • There is no reason for any intervention by this Court on the sensitive issue of purchase of 36 defence aircrafts by the Indian Government. Perception of individuals cannot be the basis of a fishing and roving enquiry by this Court, especially in such matters. Petition dismissed.[December 14, 2018] – For more information, please accessReadMore
  • Commissioner of Central Excise and Service Tax, Noida v. Sanjivani Non-Ferrous Trading Pvt
  • The issue raised in present appeals pertains to the transaction value/assessable value in respect of imported Aluminum Scrap, which was imported by the Respondent herein. The Respondent had imported various varieties of the said Aluminum scrap during the relevant period and filed 843 Bills of Entry along with invoices and purchase orders in respect therein declaring the transaction value of the imported goods for the purpose of paying custom duty. The declared value was not accepted by the Assessing Officer who found the same to be low. Accordingly, the said declared value was rejected and reassessment was done by increasing the assessable value.In a writ petition filed by the Respondent in the High Court, on the directions of the High Court directed the Deputy Commissioner of Customs, NOIDA to pass a speaking order dated 25th March, 2015, giving his reasons to reject the transaction value as declared by the Respondent. The assessment order dated 25th March, 2015 passed by the Assessing Officer was challenged by filing appeals before the Commissioner (Appeals). All these appeals were dismissed. Challenging the order of the Commissioner (Appeals), the Respondent approached the Tribunal. By the impugned common judgment, the appeals of the Respondent were allowed thereby rejecting the enhancement of assessable value by the Revenue. It is the said order of the Tribunal, which is the subject matter of present appeals.
  • Undervaluation has to be proved. If the charge of undervaluation cannot be supported either by evidence or information about comparable imports, the benefit of doubt must go to the importer. If the Department wants to allege undervaluation, it must make detailed inquiries, collect material and also adequate evidence. Strict Rules of evidence do not apply to adjudication proceedings. They apply strictly to the courts' proceedings. However, even in adjudication proceedings, the AO has to examine the probative value of the documents on which reliance is placed by the Department in support of its allegation of undervaluation. Once the Department discharges the burden of proof to the above extent by producing evidence of contemporaneous imports at higher price, the onus shifts to the importer to establish that the invoice relied on by him is valid. Therefore, the charge of under-invoicing has to be supported by evidence of prices of contemporaneous imports of like goods.
  • Section 14(1) of Customs Act, 1962 speaks of "deemed value". Therefore, invoice price can be disputed. However, it is for the Department to prove that the invoice price is incorrect. When there is no evidence of contemporaneous imports at a higher price, the invoice price is liable to be accepted. The value in the export declaration may be relied upon for ascertainment of the assessable value under the Customs Valuation Rules and not for determining the price at which goods are ordinarily sold at the time and place of importation. This is where the conceptual difference between value and price comes into discussion.
  • The observations of the Tribunal made in the impugned judgment are to be appreciated in the light of the principles of law. The normal Rule is that assessable value has to be arrived at on the basis of the price which is actually paid, as provided by Section 14 of the Customs Act. The normal Rule was that the assessable value has to be arrived at on the basis of the price which was actually paid, and that was mentioned in the Bills of Entry. The Tribunal has clearly mentioned that this declared price could be rejected only with cogent reasons by undertaking the exercise as to on what basis the Assessing Authority could hold that the paid price was not the sole consideration of the transaction value. Since there is no such exercise done by the Assessing Authority to reject the price declared in the Bills of Entry, Order-in-Original was, therefore, clearly erroneous. There is no merit in present appeal. Appeals dismissed.
  • [December 10, 2018] – For more information, please accessReadMore
  • Prakash Chand Daga v. Saveta Sharma and Ors
  • Present appeal challenges the judgment passed by the High Court. The Appellant, original owner of a Santro Car sold said vehicle to Saveta Sharma, first Respondent on 11th September, 2009. According to Appellant, after receiving due consideration, possession was transferred to said first Respondent. An accident occurred on 9th October, 2009 in which one Rakesh Kumar, second Respondent, received injuries. In a claim lodged by second Respondent, Motor Accident Claims Tribunal assessed the compensation at Rs. 12.47 lakhs.Since the liability was fastened on the driver and first Respondent, the aforesaid decision was challenged by them in the High Court. The High Court found that despite the sale of the vehicle, no transfer of ownership, in accordance with Section 50 of the Motor Vehicles Act, 1988 ('the Act') was effected and as such the Appellant continued to be the owner in terms of definition as incorporated in Section 2(30) of the Act.
  • In terms of Section 50 of the Act, the transfer of a vehicle ought to be registered within 30 days of the sale. Section 50(1) of the Act obliges the transferor to report the fact of transfer within 14 days of the transfer. In case the vehicle is sold outside State, the period within which the transfer ought to be reported gets extended. On the other hand, the transferee is also obliged to report the transfer to the registering authority within whose jurisdiction the transferee has the residence or place of business where the vehicle is normally kept. Section 50 thus prescribes timelines within which the transferor and the transferee are required to report the factum of transfer. As per Sub-Section 3 of said Section 50, if there be failure to report the fact of transfer, fine could be imposed and an action under Section 177 could thereafter be taken if there is failure to pay the amount of fine. These timelines and obligations are only to facilitate the reporting of the transfer. It is not as if that if an accident occurs within the period prescribed for reporting said transfer, the transferor is absolved of the liability.
  • The law is thus well settled and can be summarised that, even though in law there would be a transfer of ownership of the vehicle, that, by itself, would not absolve the party, in whose name the vehicle stands in RTO records, from liability to a third person. Merely because the vehicle was transferred does not mean that such registered owner stands absolved of his liability to a third person. So long as his name continues in RTO records, he remains liable to a third person. The High Court was therefore absolutely right in allowing the appeal. The challenge raised by the Appellant must fail. Appeal dismissed.
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  • V Ravi Kumar v. State and Ors
    Present appeal is against the final judgment passed by the High Court allowing Criminal Original Petition filed under Section 482 Code of Criminal Procedure, 1973 (CrPC) and quashing the criminal proceedings against the Petitioners before the High Court and also against the first Accused company, which was not party before the High Court. The short question in instant appeal is whether the High Court should have quashed the criminal proceedings being Crime No. 54 of 2005 on the grounds that the Appellant had withdrawn an earlier complaint without assigning reasons; the transactions being commercial in nature, the ingredients of an offence under the Sections referred to above were absent; and that the remedy of the Appellant lay in filing a civil suit.
    It is well settled that, a judgment is a precedent for the issue of law which is raised and decided. Phrases and sentences in a judgment are to be understood in the context of the facts and circumstances of the case and the same cannot be read in isolation.
    Every breach of contract does not give rise to an offence of cheating. The language and tenor of Vesa Holdings (P) Ltd., particularly, the observation that breach of contract would give rise to an offence of cheating only in those cases where there was any deception played at the very inception, is to be understood in the context of the facts of that case and accordingly construed. The phrase "in those cases where there was any deception played at the very inception" cannot be read out of context. This is not a case of breach of contract simplicitor but there are serious allegations of forgery of documents, use of blank letterhead, papers and cheque leaves of the Appellant.
    In this case, it cannot be said that there were no allegations which prima facie constitute ingredients of offences Under Sections 420, 409 and 34 of the Indian Penal Code, 1860 (IPC) in complaint. There were clear allegations of fraud and cheating which prima facie constitute offences under Section 420 of the IPC. The correctness of the allegations can be adjudged only at the trial when evidence is adduced. At this stage, it was not for the High Court to enter into factual arena and decide whether the allegations were correct or whether the same were a counter-blast to any proceedings initiated by the Respondents.
    In Jatinder Singh and Ors. v. Ranjit Kaur, this Court clearly held that, if dismissal of the complaint was not on merit, but on default of the complainant, moving the Magistrate again with a second complaint on the same facts is maintainable. But if the dismissal of the complaint Under Section 203 of the Code was on merits, the position could be different.
    The failure to mention the first complaint in the subsequent one is also inconsequential as held, in effect, in Jatinder Singh. Mentioning of reasons for withdrawal of an earlier complaint is also not a condition precedent for maintaining a second complaint. The High Court clearly erred in law in dismissing the complaint, which certainly disclosed an offence prima facie. It was not for the High Court to enter the factual arena and adjudicate the merits of the allegations. Impugned order of the High Court quashing the complaint is set aside. Appeal allowed.
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  • Naman Singh and Ors v. State of Uttar Pradesh and Ors
  • The Appellants are aggrieved by the denial to quash the criminal prosecution against them under Sections 420, 406, 467, 468, 471, 504, 506, 34 of Indian Penal Code, 1860 (IPC). Learned Counsel for the Appellants submits that, no objection certificate has been obtained from the Chatrapati Sahuji Maharaj University, Kanpur for establishment of the three-year Law course. Affiliation has also been granted by the University. The Appellants have also deposited a sum of Rs. 3,50,000 with the Bar Council of India and await permission from it for starting the law course. The question of any fraudulent misrepresentation by the Appellants, persuading students to take admission in an unauthorised institution simply does not arise.Respondent No. 4 lodged a complaint with the Sub-Divisional Magistrate, that, she had been duped into taking admission in an unrecognised institution. The Sub-Divisional Magistrate, the very same day, without furthermore, directed the police to register a first information report. The only question for consideration is whether the Sub-Divisional Magistrate was competent to do so, and whether such an F.I.R. can be said to have been registered in accordance with the Code of Criminal Procedure, 1973 (CrPC).Section 154 of the CrPC provides for registration of a first information report at the instance of an informant, reduced into writing and signed by the person giving it. Section 154(3) stipulates that in the event of a refusal on part of an officer in charge of a police station to record such information, it may be sent in writing and by post to the Superintendent of Police who will direct investigation into the same.
  • Section 190 of the CrPC provides for taking of cognizance by a Magistrate either on a complaint or upon a police report. Similarly, Section 156(3) provides that, any Magistrate empowered under Section 190 may order such an investigation, and which also includes the power to direct the lodgement of an F.I.R. Section 200 of CrPC provides for lodging of a complaint before the Magistrate, who after examination of the complainant and witnesses, if any, can take cognizance.
  • It is therefore apparent that, in the scheme of the Code, an Executive Magistrate has no role to play in directing the police to register an F.I.R. on basis of a private complaint lodged before him. If a complaint is lodged before the Executive Magistrate regarding an issue over which he has administrative jurisdiction, and the Magistrate proceeds to hold an administrative inquiry, it may be possible for him to lodge an F.I.R. himself in the matter. In such a case, entirely different considerations would arise. A reading of the F.I.R. reveals that the police has registered the F.I.R. on directions of the Sub-Divisional Magistrate which was clearly impermissible in the law. The Sub-Divisional Magistrate does not exercise powers under Section 156(3) of the CrPC. The very institution of the F.I.R. in the manner done is contrary to the law and without jurisdiction.
  • Nothing prevented Respondent No. 4 from lodging an F.I.R. herself before the police under Section 154 of the CrPC or proceeding under Section 154(3) if circumstances so warranted. Alternately, the Respondent could have moved the Magistrate concerned under Section 156(3) of the CrPC in the event of the refusal of the police to act. Remedy was also available to the Respondent by filing a complaint under Section 200 of the CrPC before the jurisdictional Magistrate. Any application by Respondent No. 4 hitherto under the CrPC will therefore have to be considered by the appropriate authority or forum in accordance with law. The impugned order is set aside. Appeal allowed.
  • [December 13, 2018] – For more information, please accessReadMore

NEWS – HIGH COURT AND TRIBUNALS

  • Naseem Kar v. Sonamarg Development Authority - (High Court of Jammu and Kashmir)
  • Instant petition has been filed by the Petitioner under Section 9 of the J & K Arbitration and Conciliation Act, 1997 for directing the maintenance of status quo with regard to Island Retreat Park Cafeteria and Kiosks at Srinagar. Issue raised in instant case is for grant of interim assistance.It emanates from license deed brought on record that, the licensor hereby authorized the licensees to hold the said premises for term of 5 years which had to commence from the 08-01-2013 with option of renewal (exercisable by the licensor) for any further period exceeding 5 years on enhanced rent as may be determined by the licensor. Clause 19 of the said deed states that, in case of any dispute between the parties hereto the same shall be referred for Arbitration of Administrative Secretary in charge Tourism and Culture Department, Government of J & K whose decision shall be final and binding upon the parties. The proceedings of the arbitration shall be conducted under the provisions of the Act and rules framed thereunder. The venue of Arbitration shall be at Jammu/Srinagar, depending upon the locale of the assets.The Petitioner herein admittedly has used the premises in light of the contract entered into between the parties up to November 2017 and thereafter same has been extended for one season with 10% escalation against the bid amount. The concerned authority at the time of the accord of sanction for extension has made reference to the notice issued for deposition of the amount of Rs. 3.09 lacs which was outstanding against the oetitioner. The huge investment made earlier has been also given a thought at the time when the extension was granted. Notice for making reference of the dispute which according to the Petitioner has been made on 20th July, 2018 has been replied with assertion in communication that, the doors are open for healthy discussion.
  • Section 9 of the Act empowers District court and High Court to make appropriate orders for preservation of the property or have other interim measures till the matter is settled by the arbitral Tribunal before which the proceedings are contemplated to be initiated. It is no more res integra that for grant of interim assistance, same principles which govern the grant of interim assistance in supplemental proceedings before a civil court in terms of Order 39 of Code of Civil Procedure, 1908 (CPC) or under the provision of Specific Relief Act applies. The Court which has to be approached for grant of the assistance cannot decide the merits of the case or rights of the parties under Section 9 of the Act as it has to consider only the question of existence of the arbitration clause necessitating of taking immediate measures for issuance of the direction for protecting the lis.
  • The contract between the Petitioner and the Respondent herein on 8th August, 2013 has come to an end by efflux of time. The measures to be taken as interim assistance in the facts and circumstances are sought by the Petitioner by the maintenance of the status quo i.e., to allow the Petitioner to use the property till the arbitral Tribunal gives its findings over the dispute stated to be crept in between the parties and required to be settled. Notice of the fact needs to be taken that the contract entered into between the parties was determinable in nature and having regard to the provisions of the Specific Relief Act, its specific performance could not be insisted upon as it is to be concluded under relevant provision of the Specific Relief Act that in such case of contract, the compensation is adequate remedy. The injunction cannot be granted either in preventive or mandatory form and the compensation is a proper remedy under the relevant law.
  • The contention raised that similarly situated person were given different treatment too would not impel the Court to grant assistance sought, in proceedings, when the Petitioner has invoked the jurisdiction for enforcement of a private law remedy. Furthermore as the grant of assistance would result in reviving a contract which has already come to an end same cannot be said to be within the scope of Section 9 of the Act. No case has been made out for grant of interim assistance. Petition dismissed.
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  • Hindustan Petroleum Corporation Limited v. CCT, Visakhapatnam GST - (Customs, Excise and Service Tax Appellate Tribunal)
  • In instant matter, the Appellant herein is a Public Sector Undertaking engaged in manufacture of various petroleum products and have been availing the benefit of CENVAT credit. They had taken some land on lease from Coromandel International Limited who, in turn, have charged them service tax along with lease rentals through four debit notes. After paying the amount to Coromandel International Limited, Appellant availed CENVAT credit of the service tax paid on these debit notes. A show cause notice was issued seeking to disallow the CENVAT credit availed by the Appellant on the ground that, the subject invoices are debit notes which are not eligible documents for availing CENVAT credit in terms of Rule 9(1) of CENVAT Credit Rules, 2004. After following due process of law, the original authority confirmed the demand along with interest and imposed penalty on the appellant. Aggrieved, Appellant appealed before the first appellate authority who, vide the impugned order, upheld the Order-in-Original and rejected the appeal.Question involved in present case is whether the credit can be allowed on the strength of four debit notes in question issued by M/s. Coromandel International Limited in favour of the appellant, because (a) debit notes are not specifically included as valid duty paying document under Rule 9(1) of CCR 2004 and (b) whether the debit notes, while printed, do not indicate the amount of service tax paid and this amount has only been written in hand.It is true that Rule 9(1) of CCR 2004 does not specifically indicate debit notes as one of the documents on the strength of which CENVAT Credit can be availed. However, the Hon'ble High Court of Rajasthan in the case of Bharati Hexacom Limited held that, CENVAT credit can be availed on the basis of debit notes. This is a binding legal precedent, ratio of which applies to the present case.
  • Copies of debit notes have now been enclosed in the paper book submitted by the Appellant which contains all the relevant details. The service tax amount has been indicated in pen in these four debit notes but that should not be a limitation for availing of CENVAT credit and there is no requirement in the CCR 2004 that all the details of the invoice should be printed on a computer. There is no allegation in the show cause notice that service tax has not been paid by the service provider. CENVAT credit is admissible to the Appellant on the four disputed debit notes. The Impugned order is set aside and the appeal is allowed.
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  • Gaodevi Utkarsh Sra Co-Op. Housing Society Ltd. and Ors v. Sudesh Darshan Aggarwal and - (National Consumer Disputes Redressal Commission)
  • In instant matter, the Complainant purchased a shop. The said building including the said shop of the Complainant was re-developed by the Housing Society through the Developers. Through the draw of lots, under the re-development agreement, the Complainant was allotted shop No. 5 and one Mrs. Kalawati Jain was allotted shop No. 6. It was stated that, the Housing Society and the Developers were not handing over the possession of the shop to the Complainant since 2005 on one pretext or the other and hence the Complainant got issued a legal notice to them seeking possession of shop No. 5. Whether including the shop number in the impugned order by the State Commission amounts to review/recall of its earlier order.It is apparent on the face of the record that, the Complainant did not mention the shop number in the prayer and, therefore, in the substantive order the State Commission has only directed for possession of 'the shop.' The finding of the State Commission in the impugned order that 'the shop' referred to shop No. 5 does not amount to reviewing or recalling its own order as it is apparent on the face of the record that the Developers in his written version and in his affidavit of evidence has clearly stated that shop No. 5 was allotted to the Complainant by way of draw of lots.The Society was set ex-parte before the State Commission. Even otherwise a perusal of the Complaint, the substantive order and the impugned order does not anywhere construe that the executing court has traversed beyond its original decree. While the executing court cannot go beyond the substantive order passed, it is also the duty of the executing court to interpret the decree in its truest sense in its endeavour to deliver justice.
  • The Supreme Court in Meenakshi Saxena Vs. ECGC has laid down that, the whole purpose of Execution proceedings is to enforce the verdict of the Court. Executing Court while executing the decree is only concerned with the execution part of it. The Court has to take the judgment in its face value. It is settled law that executing court cannot go beyond the decree. But the difficulty arises when there is ambiguity in the decree with regard to the material aspects. Then it becomes the bounden duty of the court to interpret the decree in the process of giving a true effect to the decree.
  • The Complainant had vested rights in shop No. 5. In view of the material on record, the Executing Court has only clarified its original order and interpreted 'the shop' to be 'shop No. 5'. No illegality or infirmity in the order passed by the State Commission directing the Housing Society to deliver shop No. 5 to the Complainant. Therefore, Appeal Execution is dismissed.
  • However, the Developers had already handed over the building to the Housing Society and it is the duty of the Housing Society to allot the shops to the Members. Though the document states that the allotment of different shops to the Members of the Housing Society has been approved by BMC and SRA along with the Developers and the Managing Committee of the Housing Society, there is no documentary evidence on record to substantiate that it is the Developers who has to make the allotments to the Members of the Housing Society. Hence, Appeal Execution preferred by the Developers is allowed while confirming the rest of the order of the State Commission in respect to the Housing Society.[December 12, 2018] – For more information, please accessReadMore
  • Kailash Chandra Gupta v. Vinod Kumar Bhatia and Ors. - (High Court of Allahabad)
  • Present appeal has been filed challenging the award of the Commissioner. The contention of the Appellant is that, the loss of employment suffered by him should have been treated to be a 100% and not 55% since he was the Driver of the truck and by losing his one arm below the elbow he had suffered a permanent disability. The question in present case is whether the Appellant is entitled to his claim in accordance with the finding not recorded that the injured person has loss his earning capacity upto the extent of 100% because he is no more capable of doing his job which he was performing upto the date of accident.The Appellant (injured employee) was discharged from service which fact has also been noted by the Claims Commissioner referring to the statement of the truck owner that because the left hand of the driver had been amputated, there was no further requirement of his services. That being so, on these facts the Appellant had completely lost his job since the owner of the vehicle himself declared that there was no further requirement of his services as a result of the injuries suffered by him and that his services had in fact been dispensed with. Therefore, in the case of the present Appellant, there was no question of him being adjusted against an alternative employment.The Supreme Court in Raj Kumar Vs. Ajay Kumar & Another held that, if the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions and in that event the loss of earning capacity will not be 100 % as in the case of a driver or carpenter.
  • The judgment of the Supreme Court in the case of Raj Kumar would be squarely applicable to the facts of the present case as in the present case the Appellant has not only suffered amputation of his left hand but his services as driver have been dispensed with and the loss of employment is complete, therefore, in the facts of the present case, the loss of earning capacity of the appellant must be determined at 100%.The impugned award is quashed. The matter is remitted to the Commissioner, Workmen's Compensation Act, Kanpur to re-determine the compensation payable to the appellant. Appeal allowed.
  • [December 17, 2018] – For more information, please accessReadMore
  • Raghu Hari Dalmia v. Reserve Bank of India and Ors. - (High Court of Calcutta)
  • The present writ petition has been preferred primarily praying for issuance of a writ of or in the nature of Mandamus directing the Respondents to forthwith recall, rescind, withdraw and/or cancel the order dated 20th November, 2018 passed by the Review Committee of the Respondent No. 2 bank declaring the petitioner to be a willful defaulter under the Master Circular published by the Reserve Bank of India on 1st July, 2015.Indisputably, on the basis of a sanction letter loan was disbursed on 21st May, 2012 and such facility was required to be utilized for setting up of Captive Power Plant (CPP). The said fund had not been utilized for such purpose. The charge quoted in the notice prior to declaration as willful defaulter runs as follows: 'A part of the sanctioned limit was sanctioned for setting up a Captive Power Plant, you availed the disbursement of the said loan, however, subsequently decided not to go ahead with the Captive Power Plant. After insistence by the Consortium members to refund the amount of such availed loan, you stated that the loan was used to fund the cost escalation in other areas of the pellet project, however you have agreed to refund around Rs. 38.50 Crs to the lenders, which has not been paid till date. Hence this is a case of Fund Diversion'In reply to the said notice it has been stated that, the amount saved on CPP was used to fund the cost escalation towards mechanised raw material handling system and there was a commitment on the part of PMPL towards refund of an amount of Rs. 38 crores. The said amount has not been refunded. A letter dated 20th July, 2015, as referred to in the review committee order, has been produced by Mr. Mitra which clearly shows that the total outstanding was of an amount of Rs. 38.49 crores.
  • The contents of the decision is to be considered together and not in isolation. A particular clause cannot be taken up and highlighted. For the purpose of setting up CPP, loan was sanctioned in the year 2012. In the replies submitted by the Petitioners, there had been a commitment towards refund of the amount of Rs. 38 crores but the same has been withheld.
  • It is well settled that, the writ Court cannot sit as an appellate authority over the decision taken by the competent authority. The order impugned does not suffer from any violation of the principles of natural justice. The replies submitted by the Petitioners, were duly considered and a reasoned order has been passed by the Review Committee and it is also not a case that the impugned order has been passed on extraneous consideration. In view thereof, present Court is reluctant to exercise any discretion in favour of the Petitioner and the writ petition is, accordingly, dismissed.[December 17, 2018] – For more information, please accessReadMore
  • Meghdoot Ghosh v. The State of West Bengal and Ors. - (High Court of Calcutta)
  • The Petitioner has assailed the rejection of his technical bid. The Petitioner has submitted that, not only the rejection of the technical bid of the petitioner was incorrect, but also, the tender evaluation process was not in accordance with the terms and conditions of the tender.In Afcons Infrastructure Ltd. vs. Nagpur Metro Rail Corporation Ltd. and Ors. it is held that, the decision making process in accepting or rejecting a bid should not be interfered with unless, it is substantiated that, the decision making process suffers from mala fides or is intended to favour someone or is arbitrary or irrational or such that no reasonable authority acting reasonably in accordance with law could have reached such decision. A perversity of the decision making process can be enquired into. A decision which is merely faulty or erroneous or incorrect should not be a ground for a Court to interfere. A Constitutional Court is expected the exercise restraint in interfering with administrative decision and ought not to substitute its view for that of the administrative authority.The fact that, a different view can be taken on the selfsame material, is not a valid ground for interference for a Constitutional Court with an administrative decision, unless, it is substantiated that, the decision is tainted with fraud or mala fide or the decision is so erroneous that, no reasonable authority could have arrived at such a conclusion.
  • In the facts of the present case, the Tender Evaluation Committee evaluated the tender documents and did not take into consideration three of the bill of quantity items in one of the works executed by the petitioner and two bill of quantity items in the other. At best, the Tender Evaluation Committee can be said to have erred in not taking into consideration such bill of quantities. There is no material placed on record to suggest that, the impugned decision was taken in order to favour someone or suffers from mala fides. It is the contention of the Petitioner that, the petitioner had quoted the rate which was 20% less than the initial quote of the private Respondent. Moreover, the authorities accepted the bid of the private respondent after a discount of 2%. Ultimately, the exchequer suffered 18% less for not having accepted the bid of the petitioner. That by itself, will not attribute mala fides in the decision making process nor can the decision arrived at by the Technical Evaluation Committee be said to be taken for the purpose of benefitting the private respondent.
  • The fact that, the financial bid of the Petitioner was less than 20% of the rate quoted by the private respondent was not known to the Technical Evaluation Committee as the financial bid of the Petitioner was not opened while considering the financial bid of the private respondent. Moreover, the Petitioner had time since January 5, 2018 when, the technical bid opening summary was uploaded till January 11, 2018 when the financial bid was opened, for the petitioner to question the decision of the Technical Evaluation Committee in not considering the petitioner as technically qualified. Nothing is placed on record to suggest that, the Petitioner attempted to do so within such time period. In such circumstances, there is no reason to interfere.
  • [December 17, 2018] – For more information, please accessReadMore
  • Shafiq Ahmad Shah v. State of J&K and Ors. - (High Court of Jammu and Kashmir) (14 Dec 2018)
  • Petitioner is aggrieved of and seeks quashment of Order passed by Custodian General, J & K, Srinagar (Respondent No. 2), leasing out evacuee land measuring in favour of Shabir Ahmad Itoo and Abdul Basit Dar (Respondents 9 & 10). He also seeks quashment of lease agreement dated 28th November 2016, lease deed as also NOCs. A direction is also sought in the name of Respondents to issue public notice for making fresh allotment of the land in question and to allot the same to highest bidder in public auction and Respondents 5 & 6 not to allow Respondents 7 to 10 to make any construction on land in question.Allotment of government property is akin to distribution of largesse and the same cannot be allotted/distributed otherwise than by following the procedure, which is in consonance with provisions of Article 14. Custodian, Evacuee Property, is a statutory authority created under the Act of 2006 and is enjoined to preserve, protect and better utilise evacuee property and therefore is enjoined a public duty. It cannot act arbitrarily and deal with property of evacuee as if he is himself an owner of said property, having all rights of disposition/alienation.It is true that, there is no specific provision in the Act or Rules framed thereunder, providing for mode and manner in which the evacuee property, having commercial potential, is to be allotted. Order No. LB/7-C of 1958 dated 5th June 1958, however, lays down elaborate procedure for allotment of the evacuee agriculture land in favour of certain persons. A careful perusal of LB/7-C of 1958 would make it manifest that allotment to be made under said Rules cannot be done arbitrarily and provides a detailed procedure for such allotment, which is in consonance with Article 14 of the Constitution of India.
  • Instant case is not an isolated case of arbitrary and illegal allotment made by Custodian/Custodian General, but the department of Custodian/Custodian General has been indulging in such arbitrary allotments of evacuee property in the same manner with impunity. In the absence of specific Rules framed by the Government, regulating such allotments, the department of Custodian General has free run and is indulging in the practices, which are not countenanced by law. The property of evacuees, worth crores of rupees, has been squandered in this manner.
  • Till a legislation/rules are framed by the Government pertaining to allotment of urban immovable evacuee properties including residential house(s) of evacuees, it would be incumbent upon Custodian to allot available properties/urban properties of evacuee(s) by adopting a fair and rational procedure, which is in consonance with Article 14 of the Constitution. No allotment of evacuee property shall be made unless applications by public notifications are invited from general public and applications, so received, dealt with in rational manner by adopting fair criteria/yardstick for selecting a person for allotment of such properties.
  • Impugned order cannot sustain. Consequently, order impugned, which is passed by Custodian General in violation of provisions of the Act of 2006 and Rules thereunder and is otherwise abhorrent to Article 14 of the Constitution of India, is quashed. Impugned order quashed; as a consequence, lease agreement dated 28th November 2016, between Respondents 9 & 10 and Custodian Evacuee Property, Kashmir, shall stand quashed.
  • [December 14, 2018] – For more information, please accessReadMore
  • Lakshmi Kant Patel v. The State of Bihar and Ors. - (High Court of Patna)
  • The present appeal has been preferred against the order, whereby the learned single Judge has declined to pass an order for payment of full gratuity with interest to the Appellant only on the ground of pendency of a criminal case involving disproportionate assets, though in the departmental proceeding the allegation against the Petitioner has not been substantially proved and an order to deduct 10% of pension amount payable to the petitioner has already been passed.The Petitioner has already been given the punishment of withholding of 10% of pension in the departmental enquiry, which was concluded against the petitioner, vide departmental Enquiry. In the departmental enquiry, charges against the Petitioner of disproportionate income was not established, barring the possession of a Mahindra SUV vehicle, which was omitted to be shown in the return filed by the Petitioner. Thus, even though the charges were not fully established against the Petitioner, he was given the punishment of withholding of 10% of pension under Rule 139 of the Bihar Pension Rules, vide notification contained in Memo No. 9638(S) dated 29th November, 2016 and against such punishment order, the Petitioner has already represented. The learned single Judge has clearly erred in declining the prayer of the Petitioner for payment of gratuity.Moreover, since there is no question of defalcation of any amount or expected recovery of any amount from the Petitioner, in such circumstances, in the considered opinion of this Court, no amount against the gratuity payable to the Petitioner can be withheld. Furthermore, the criminal proceeding without any charge sheet cannot raise any presumption at this stage that there was enough material against the Petitioner for taking cognizance of the offence, as alleged. Moreover, there is no finding in the departmental proceedings against the Petitioner of having defalcated any amount from the State exchequer or having caused any pecuniary loss to the State.
  • In view of Rules, particularly Rule 43(b) of the Bihar Pension Rules, Court find that the crux of the Government circular is that whenever there is an expected recovery, those amounts can be withheld awaiting the outcome of the criminal proceedings or the departmental proceedings. In the instant case, there is no finding of guilt by the departmental enquiry officer against the Petitioner, save and except that he had purchased a vehicle on getting loan, which he had failed to disclose in his assets for which the petitioner has suffered withholding of 10% of the pension amount and thus, in the above background, there appears to be no justification to withhold gratuity as well.
  • The order of the learned single Judge, so far as it relates to the withholding of the gratuity, cannot be upheld and is, accordingly, set aside to the said extent. The amount of gratuity payable to the Petitioner is directed to be released forthwith along with interest payable on the same from the date the said amount became payable to the date of payment. The appeal is accordingly allowed.
  • [December 17, 2018] – For more information, please accessReadMore
  • Vijay Singh Machhan v. State of Himachal Pradesh and Ors. - (High Court of Himachal Pradesh)
  • By way of present writ petition, the Petitioner has prayed for quashing of Communication dated 12th March, 2018 (Annexure P-7), vide which, the office of Additional Chief Secretary (Public Works Department), has informed the office of Engineer-in-Chief (Public Works Department) that, the matter regarding construction of new PWD Rest House was reviewed by the Council of Ministers in its meeting held on 26th February, 2018 and the same has been cancelled.The decision to cancel the construction of Rest House at village Kutara was taken by the Cabinet upon consideration of a Memorandum, which was placed before it specifically for the said purpose. Not only this, the justification for cancellation of Rest House given in the Memorandum is reasonable and not arbitrary, as alleged by the Petitioner. Thus, here it is not a case where the earlier proposal was rejected by the Cabinet without there being any cogent material placed before it. The factum of there being one Circuit House and two Rest Houses in close vicinity is prudent and plausible reason to have had reviewed the proposal of construction of new Rest House.In State of Tamil Nadu and others Vs. K. Shyam Sunder and others, Hon'ble Supreme Court has held that, unless it is found that act done by the authority earlier in existence is either contrary to statutory provisions, is unreasonable, or is against public interest, the State should not change its stand merely because the other political party has come into power. In Andhra Pradesh Dairy Development Corporation Federation Vs. B. Narasimha Reddy and others, Hon'ble Supreme Court has held that in the matter of the Government of a State, the succeeding Government is duty bound to continue and carry on the unfinished job of the previous Government, for the reason that the action is that of the "State". Hon'ble Court has further held that "Political agenda of an individual or a political party should not be subversive of rule of law" and the Government has to rise above the nexus of vested interest and nepotism, etc. as the principles of governance have to be tested on the touchstone of justice, equity and fair play. The decision must be taken in good faith and must be legitimate.
  • The Governments are in continuity and simply because there is a Change of Guard, the decisions earlier taken by the Government can be or should be allowed to be undone subsequently in a mechanical manner. The impugned decision of the Government is prudent and reasonable and further it cannot be said that the Government per se does not has any right to review an earlier decision taken by it, simply because there is a Change in Guard. The reasoning, as it emerges from the record, cannot be said to be so unreasonable so as to call for any interference in exercise of its writ jurisdiction by this Court. Present Court, thus, finds no infirmity with the decision taken by the State to review and cancel the construction of proposed Rest House at Kutara. There is no merit in this petition, the same is accordingly dismissed.
  • [December 18, 2018] – For more information, please accessReadMore

 

Disclaimer (a) “This information has been gathered from various sources. Nothing herein is or may be construed as legal advice”.