SUPREME COURT

• SERVICE

Regional Manager, Central Bank of India Vs. Madhulika Guruprasad Dahir and Ors. (Decided on 25.07.2008)

Whether delay in making reference to the Scrutiny Committee for verification of the caste certificate as also the delay on the part of the Scrutiny Committee in such verification per se vitiates the order of termination of services of an employee, even when the certificate is ultimately found to be false

The employee having accepted the finding of the Scrutiny Committee, holding that the caste certificate furnished by the employee was false, the very foundation of her appointment vanished and her appointment was rendered illegal. Her conduct renders her unfit to be continued in service and must necessarily entail termination of her service. Under these circumstances, there is absolutely no justification for her claim in respect of the post merely on the ground that she had worked on the post for over twenty years. The fact that caste certificate was referred to the Scrutiny Committee for verification after ten years of her joining the service and a long time was taken by the Scrutiny Committee to verify the same is of no consequence inasmuch as delay on both the counts does not validate the caste certificate and the consequent illegal appointment.

• CRIMINAL

Rajbabu and Anr. Vs. State of M.P. (Decided on 24.07.2008)

Whether a woman committing suicide within seven years of the marriage can be presumed to be subjected to cruelty under Section 113A of the Evidence Act 

The mere fact that a woman committed suicide within seven years of her marriage and that she had been subjected to cruelty by her husband or any relative of her husband, does not automatically give rise to the presumption that the suicide had been abetted by her husband or any relative of her husband. The court is required to look into all the other circumstances of the case. One of the circumstances which has to be considered by the court is whether the alleged cruelty was of such nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman.

Sannaia Subba Rao and Ors.Vs. State of A.P. (Decided on 24.07.2008)

Power of High Court in an appeal from acquittal 

The power of the High Court in an appeal from acquittal is no different from its power in an appeal from conviction when it can review and consider the entire evidence and come to its own conclusions by either accepting the evidence rejected by the trial court or rejecting the evidence accepted by the trial court.

Suraj Singh Vs. State of U.P. (Decided on 24.07.2008)

Discrepancy between the ocular evidence and the medical evidence - importance of eye witnesses 

It would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses' account which had to be tested independently and not treated as the "variable" keeping the medical evidence as the "constant". It is trite that where the eyewitnesses' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bentham said, are the eyes and ears of justice. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts, the "credit" of the witnesses; their performance in the witness box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.

• TENANCY

B.Y. Narasimha Prasad Vs M. Veerappa and Anr. (Decided on 21.07.2008)

Whether the eviction petition under Section 2(3)(f) of Karnataka Rent Act, 1999 instituted within the period of 15 years is maintainable even though the suit house was subjected to substantial renovation and additional construction

Once it was established that the suit house had undergone additional construction/substantial renovation within the meaning of Section 2(3)(f) of the Act the question of maintainability of the proceeding became a jurisdictional issue and the court is legally bound to address it regardless of whether or not any objection was raised by the other side.

A.K. Jain Vs. Prem Kapoor (Decided on 28.07.2008)

Whether eviction of tenant can be granted on grounds of personal necessity

When the son and wife and children are part of the landlord's family and all of them are living together, the accommodation of the son, his wife and their children is part of the landlord's personal necessity wherein the landlord can request eviction of tenant from tenanted premises.

HIGH COURT

• CRIMINAL

Prakash Pralhad Patil Vs. Respondent: The State of Maharashtra and Ors. (Decided on 04.07.2008) MANU/MH/0562/2008

Whether appointment of "Special Public Prosecutor" for conducting Sessions Case made by the Government order not keeping with the scheme of Section 24 (8) of Cr.P.C is valid

It is incumbent on the part of the Principal Secretary and RLA to establish that requirements of Rule 22(1) of the Rules of Legal Affairs were satisfied. In the instant case requirements were not compiled and the opinion of the District Superintendent of Police cannot be solely form base for RLA to recommend such appointment.

• DIRECT TAXATION

DELHI HIGH COURT

The Commissioner of Income Tax Vs. Dhir Global Industries Pvt. Ltd.( Decided on 04.07.2008) MANU/DE/0924/2008

Scope of levy of penalty under Section 272A (2) (g) of the Income Tax Act, 1961 -whether penalty under Section 272A (2) (g) of the Income Tax Act, 1961 can be imposed on the assesse

The imposition of penalty under Section 272A (2) (g) of the Income Tax Act is independent to the penalties levied under Section 221 which pertain to default in depositing the tax deducted at source and which is a consequence of the assessee being in default in view of the provisions of Section 201 (1). Assessee was not in default under Section 201 (1) of the Act and thereby penalty under Section 221 of the Act can not be imposed. The explanation for the delay, which is common, both, for the making of the deposit and filing of the TDS return, on the one hand, and the issuance of the TDS certificate on the other, has been accepted, then there is no question of imposing a penalty on the assesee under Section 272A (2) (g) of the said Act.

ALLAHABAD HIGH COURT

Commissioner of Income Tax Vs. Kanpur Colonisers (P) Ltd.( Decided on 23.05.2008) MANU/UP/0356/2008

Section 256(2) of the Income-tax -Whether the expenditure incurred by the assessee in plantation of eucalyptus trees in the present case can be termed as expenditure incurred on agricultural operation

The expenditure incurred by the assessee towards the plantation of eucalyptus trees cannot be termed as the revenue expenditure or the expenditure incurred on agricultural operation by the assessee. The eucalyptus trees planted by him could not be treated to be stock in trade as Assessee was not dealing with agricultural business or plantation of trees.He deals with the purchase and sale of land and plantation of eucalyptus trees is done till the land is further developed for the purpose of colonization and sale to prospective buyers. Thus the expenses incurred thereon were for the purpose of bringing into existence a new asset or obtaining a new advantage. Such an expenditure would not be an expenditure of revenue nature but a capital expenditure.

• ELECTRICITY

GUJARAT HIGH COURT

Lakhabhai Popatbhai Sorathiya V. Ombudsman of Electricity and Anr.( Decided on 07.07.2008 ) MANU/GJ/0414/2008

Whether under Regulation No. 13.4 it is mandatory to pay compensation for non rectification of complaint within prescribed time frame

Regulation No. 13.4 under Gujarat Electricity Industry (Reorganization and Regulation) Act, 2003 expressly provides for payment of compensation in case if such complaint is not attended within the prescribed period of 10 days. Aforesaid regulations are mandatory in nature so far as the electricity company is concerned vis-a-vis its right with the consumer and when it is expressly provided under the statutory regulations, the electricity company cannot get away from its liability to pay compensation.

• FAMILY

BOMBAY HIGH COURT

Lata @ Bhagyashree v. Madhukar s/o Rajaram Ganjare (died) through his LRs. and Subhash (Decided on 08.07.2008)  MANU/MH/0578/2008

Whether elimination of Section 23 of the Hindu Succession Act under the Amendment Act No. 39 of 2005 now gives right to a female heir to claim her share in the suit house at par with that of her deceased brother

The omission of Section 23 under the Amendment Act does not open floodgate to the ineligible female heirs for the purpose of seeking partition of dwelling house. Their rights are still in abeyance until the male heir is in occupation of the dwelling house. Hence, Appellant eventhough is a female heir is not entitled to claim partition of the suit house.

• INTELLECTUAL PROPERTY RIGHTS

DELHI HIGH COURT

Phonographic Performance Ltd v. M/S Hotel Gold Regency and Ors. (Decided on 02.07.2008) MANU/DE/0942/2008

Whether in view of the provisions of Sections 33 and 34 of the Copyright Act, 1957, a suit for infringement of copyright would be maintainable at the instance of a registered copyright society in the absence of the owner of the copyright 

As per Section 33 the business of issuing or granting licences in respect of any work in which copyright subsists can only be conducted by a person or association of persons etc., registered as a copyright society under Section 33(3). Owner of the copyright shall continue to have the right to grant licences in respect of his own works consistent with his obligations as a member of the registered copyright society. Copyright society, therefore, does not have the exclusive right to grant licences and owner of the copyright retains his individual right to grant licences in respect of his own works. Whereas under Section 34 of the Act it only permits the grant of exclusive authorisation by the owners to the copyright society for grant of licences, collection of fees and distribution thereof amongst the owners. Whatever the agreement between the owner of the copyright and the copyright society may provide, only that which is permitted by the Copyright Act, 1957 would be permissible and enforceable. The Act does not permit the grant of any authorisation by the owners to the copyright society to sue for infringement of copyright and seek injunctions, damages, accounts or other civil remedies as provided in Section 55 thereof . Remedy for infringement is restricted to an owner or an exclusive licencee. Hence, the Plaintiff copyright society cannot institute a suit for infringement of a copyright or file a suit seeking injunction against Defendants, who have allegedly infringed the copyrights of the owners. The suit not maintainable at the instance of the copyright society and was thus dismissed.

Whether, in view of the provisions of Section 61, the suit can be rejected on the ground of non-impleadment of owner of the copyright as a necessary party

When an exclusive licencee institutes a suit, Section 61 mandates that the owner of the copyright shall, unless the Court otherwise directs be made a Defendant. Hence, Section 61 applies only to suits filed by exclusive licensee. Since the Plaintiff is a copyright society registered under Section 33 and is not an exclusive licencee, this provision would not apply to a suit instituted by a copyright society, such as the Plaintiff.

• LABOUR AND INDUSTRIAL

MADRAS HIGH COURT

The Management of Catter Pillar India Private Ltd Vs. The Presiding Officer, Principal Labour Court (Decided on 02.07.2008) MANU/TN/0817/2008

Dismissal from service -- Whether the Labour Court before deciding the question relating to the enquiry can allow the workman to let in evidence when a workman raising an Industrial Dispute under Section 2A(2) of the Industrial Disputes Act challenges the validity of report of Enquiry Officer

When a question regarding the validity of the enquiry is raised by the workman, it is incumbent upon the Labour Court to decide the said question first and to give a finding thereon. If the Labour Court comes to the conclusion that the enquiry was not conducted in a fair and proper manner, after recording the said finding, the Labour Court is required to afford an opportunity to the Management to let in evidence if any, in support of the charges if so advised. If any such evidence is given after affording opportunity to the workman also to let in evidence, the Labour Court is required to decide as to whether the dismissal is proper or not, based on such fresh evidence and not on the basis of the original records of the Enquiry Officer.