SUPREME COURT

• TENANCY

Ajit Singh and Anr. Vs. Jit Ram and Anr. (Decided on 16.09.2008)

Eviction from the shop sought on the ground of sub-letting, for non - payment of rent and bonafide requirement for the personal use and occupation - Rent Controller while rejecting other grounds passed the order of eviction only on the ground of sub-letting - Appellate Authority in appeal directed the eviction from the said shop on the ground of personal necessity - High Court set aside the order of eviction on the ground the landlord had failed to prove the ingredients as required under Section 13(3)(a)(ii) of the East Punjab Urban Rent Restriction Act, 1949

As per section 13(3)(a)(ii) of the Act, the landlord in order to get an order of eviction of shop on the ground of personal necessity, have to aver and prove his requirement that it is for his own use as the said shop is a non-residential building. In the instant case the requirement was made for the son who admittedly was the owner of the shop room and also the landlord, after the said shop was, by a family partition was given to the son who became the owner of the said shop by family partition.

As held in Joginder Pal v. Naval Kishore Behal MANU/SC/0453/2002, a non-residential premises, if required by a son for user by him would cover the requirement of words used in the Section, i.e. "for his own use" in reference to a landlord. The present case had the pleading therein and it was proved that the said shop was required for the use of the son and the pleadings of the son was satisfactory. Impugned order of the High Court set aside and that of the Appellate Authority restored

• INTERPRETATION OF STATUTE

Ajit Singh and Anr. Vs. Jit Ram and Anr. (Decided on 16.09.2008)

Interpretation of the words "his own use" in regard to a non - residential building as under as mentioned in Section 13(3)(a)(ii) of the East Punjab Urban Rent Restriction Act, 1949

The words "for his own use" as occurring in Section 13(3)(a)(ii) of the Act was as interpreted in the case titled as Joginder Pal v. Naval Kishore Behal MANU/SC/0453/2002 as under:

(1) The words "for his own use" as occurring in Section 13(3)(a)(ii) of the Act must receive a wide, liberal and useful meaning rather than a strict or narrow construction.

(2) The expression - landlord requires for "his own use" is not confined in its meaning to actual physical user by the landlord personally. The requirement not only of the landlord himself but also of the normal "emanations" of the landlord is included therein. All the cases and circumstances in which actual physical occupation or user by someone else, would amount to occupation or user by the landlord himself, cannot be exhaustively enumerated. It will depend on a variety of factors such as interrelationship and interdependence - economic or otherwise, between the landlord and such person in the background of social, socio- religious and local customs and obligations of the society or region to which they belong.

(3) The tests to be applied are: (i) whether the requirement pleaded and proved may properly be regarded as the landlord's own requirement; and, (ii) whether on the facts and in the circumstances of a given case, actual occupation and user by a person other than the landlord would be deemed by the landlord as "his own" occupation or user. The answer would, in its turn, depend on (i) the nature and degree of relationship and/or dependence between the landlord pleading the requirement as "his own" and the person who would actually use the premises; (ii) the circumstances in which the claim arises and is put forward; and (iii) the intrinsic tenability of the claim. The court on being satisfied of the reasonability and genuineness of claim, as distinguished from a mere ruse to get rid of the tenant, will uphold the landlord's claim.

(4) While casting its judicial verdict, the court shall adopt a practical and meaningful approach guided by the realities of life.

(5) In the present case, the requirement of the landlord of the suit premises for user as office of his chartered accountant son is the requirement of landlord "for his own use" within the meaning of Section 13(3)(a)(ii).

In the instant case therefore, if "his own use" has been interpreted by the Apex Court in the above-said manner, then the requirements as laid down in Section 13(3)(a)(ii)(b) and (c) of the Act has to be interpreted in the same manner to hold that (a) the son of the landlord has to plead in the eviction petition that, (b) he is not occupying in the urban area concerned for the purpose of his business any other such building or rented land as the case may be; and (c) he has not vacated such a building or rented land without sufficient cause after the commencement of the Rent Act, in the urban area concerned.

Interpretation of provision of a statute - Principle thereof - Scope of interference in the finding of facts by the High Court in exercise of its revisional jurisdiction

It is well settled that while interpreting a provision of a statute, the same has to be interpreted taking into consideration the other provisions of the same statute.

In the decision, namely, Joginder Pal v. Naval Kishore Behal MANU/SC/0453/2002, the Apex Court has clearly laid down that a balanced interpretation has to be given in regard to the rent legislation and the provisions itself contemplate a case in regard to user of non-residential building by a professional and the statute itself lays down requirement in that regard within the same requirements will have to be read in regard to shop required to be used by the son of the landlord for business purpose.

High Court in its revisional jurisdiction could have interfered with such findings of fact arrived at by the Appellate Authority, if the High Court had found that the findings of the Appellate Authority on the question of bonafide requirement were either perverse or arbitrary. In the instant case there was no ground to hold that the findings of fact, regarding the bonafide requirement of the claimant were perverse or arbitrary or the pleadings made in the eviction petition could be said to be not in conformity with the requirement of Section 13(3)(a) (ii) of the Rent Act. Hence, the High Court was in error in interfering with the order of eviction passed by the Appellate Authority on the ground of bonafide requirement.

• INHERENT JURISDICTION

Lakhwant Singh Vs. Jasbir Singh and Ors. (Decided on 16.09.2008)

Exercise of inherent jurisdiction - Necessity of inherent powers to Court

Courts have inherent powers apart from express provisions of law necessary for proper discharge of functions and duties imposed upon them by law. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alique concedit, conceditur et id sine quo res ipsa esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the Section, the Court does not function as a court of appeal or revision. Inherent jurisdiction under the Section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of process of the court to allow any action, which would result in injustice and prevent promotion of justice.

• CRIMINAL LAWS

Lakhwant Singh Vs. Jasbir Singh and Ors. (Decided on 16.09.2008)

Whether exercise of power under section 482 of the Code of Criminal Procedure exception and not a rule - Circumstances under which the inherent jurisdiction may be exercised

Exercise of power under Section 482 in such case is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power, which the Court possessed before the enactment of the Code.

It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule, which would govern the exercise of inherent jurisdiction.

In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.

The powers possessed by the High Court under Section 482 Cr.P.C. are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material.

Inherent Jurisdiction under section 482 of the Code of Criminal Procedure - An instance where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge - Scope of jurisdiction

In such instance, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. It is the function of the trial Judge.

Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the Section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death.

In proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 Cr.P.C. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in Court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceeding.

Lalliram and Anr. Vs. State of M.P. (Decided on 15.09.2008)

Conviction under sections 342 and 376 of the Indian Penal Code as ordered by High Court under challenge - Prosecution alleged Appellants of committing rape on prosecutrix - Trial Court directed acquittal on account of discrepancy in the version of the witnesses by noting that though the prosecutrix claimed that she was raped by several persons at several times there was no injury noticed and doctor has categorically stated that there was no sign of rape and in fact there was no injury - High Court set aside the order of acquittal

Injury is not a sine qua non for deciding whether rape has been committed, but the same has to be decided on the factual matrix of each case. A decision has to be considered in the background of the factual scenario. In criminal cases the question of a precedent particularly relating to appreciation of evidence is really of no consequence. In Aman Kumar and Ors. v. State of Haryana MANU/SC/0104/2004 it was observed that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands on a higher pedestal then the injured witness. In the latter case there is injury in the physical form while in the former, both physical as well as psychological and emotional. However, if the court finds it difficult to accept the version of a prosecutrix on the face value it may search for evidence direct or circumstantial.

In view of the factual position of the present case the trial Court was held to be justified in directing acquittal and the High Court's judgment upsetting the acquittal was held to be unsustainable.

• CONSTITUTIONAL LAWS

Mariamma Roy Vs. Indian Bank and Ors. (Decided on 16.09.2008)

Dismissal of writ petition on the ground of availability of an alternative remedy - Whether impugned order of the High Court sustainable

High Court was not justified in passing the impugned order as it is well settled that even if an alternative remedy was available to an aggrieved party against a particular order, but if it was open to such party to move a writ application and the court has the power to entertain the same if it finds that while passing the order there has been a violation of the principle of natural justice. Matter remitted back to High Court for adjudication.

• INDIRECT TAXATION

Procedural lapse

General Instruments Company v. Union of India (UOI) and Ors. ( Decided on 25.08.2008)

Procedural lapse — Forfeiture of Special Imprest Licence (SIL) — Exemption — Appellant applied to the Joint Chief Controller of Imports & Exports for issuance of an import licence with duty exemption entitlement certificate to avail of Customs Duty exemption on the import of certain raw materials required in the manufacture of capital goods for a project, fully financed by the Government of India — The Controller of Imports & Exports instead of project import license issued a SIL to the Appellant under AM 84 policy, permitting the Appellant to import listed raw materials, without payment of Customs Duty — Show Cause Notice issued as it was contented that supplies made by the Appellant were not treated as discharge of export obligation in terms of condition (a) of the Licence — Appellant was declared to be a defaulter thereby debarring it from getting any licence under the duty exemption scheme or under any other provisions of the Import Export Policy announced from time to time — High Court held that once it is accepted that it was a mistake to issue SIL to the Appellant and the conditions attached to the bond and the licence were wholly impossible to perform, the licensing Authorities ought to have taken remedial steps immediately, particularly when Rule 8 of the Foreign Trade (Regulation) Rules, 1963, empowered JCCI to rectify the error by amending the licence — Whereby substantial claim for CCS stands allowed and the balance claim has been disallowed for want of documentary evidence to show that the project was funded by bilateral or multilateral external assistance

Held, no man should suffer a wrong by technical procedure of irregularities — Rules or procedures are the handmaids of justice and not the mistress of the justice — Ex debito justitiae, we must do justice to him — However, although the Appellant has suffered on account of confusion in the nature of the licence to be issued to it but Appellant’s main prayer for conversion of SIL into a Project Import Licence having been granted, the wrong caused stands remedied to a large extent — Insofar as CCS claim is concerned, no further relief granted to the Appellant — Appeal partly allowed

HIGH COURT

• CRIMINAL LAWS

Cancellation of anticipatory bail

Delhi High Court

Nidhi Jain Vs. State and Ors. (Decided on 01.09.2008) MANU/DE/1246/2008

Offence under sections 34, 406 and 498A - Whether filing of complaint against the Petitioner/ wife, which was later withdrawn can be a ground for cancellation of bail - Further whether filing of divorce petition by the husband of the Petitioner can be a ground for cancellation of bail of the husband.

Petitioner contended that the anticipatory bail granted to the respondents No. 2 to 8 is liable to be cancelled. In State of Gujarat (Supra) relied on by the petitioner the anticipatory bail granted to the accused was cancelled because the Magistrate had not considered the fact that the accused police inspector had snatched the money with the help of his subordinates and had used force against the victim and the Magistrate had not even considered the alleged sickness on the basis of which the anticipatory bail was granted and thus the learned Single Judge was of the view that the circumstances which were not considered, were sufficient to decline anticipatory bail to the accused and had cancelled the bail.

In the present case the husband had filed a complaint against the petitioner in which the petitioner had to appear before the police authorities where a settlement was arrived at and on account of some sort of understanding between the parties, the respondents No. 2 to 8 had withdrawn the complaint against the petitioner. This will not be a sufficient ground to cancel the anticipatory bail granted to respondents No. 2 to 8. Similarly, ground that the husband has filed a divorce petition against the petitioner, will not be a ground for cancelling the anticipatory bail granted to respondents No. 2 to 8. Even on the merits of the case the allegation against the respondents No. 2 to 8 very generic in the complaint filed on behalf of petitioner by her father.

• TENANCY

Section 25B, Delhi Rent Control Act

Krishan Kumar Gupta Vs. Swadesh Bhushan Gupta (Decided on 28.08.2008) MANU/DE/1214/2008

Power of High Court while exercising its jurisdiction under Section 25-B(8) of the Delhi Rent Control Act

While exercising its jurisdiction under Section 25-B(8) of the DRC Act, the power of High Court is supervisory in nature and it is intended to ensure that the Rent Controller confirms to law when he passes the order. The satisfaction of the High Court must be confined to the limited sphere that the order of the Rent Controller is according to law. The High Court in exercise of this jurisdiction is not to substitute its own decision in place of ARCs decision unless the decision given by the Rent Controller was so unreasonable that no Rent Controller could have reached such a finding on the material available. There is a distinction between an appellate and revisional jurisdiction. Revisional power is ordinarily a power of supervision, keeping the subordinate tribunals within the boundaries of four walls of law.

• SALES TAX/VAT

JHARKHAND HIGH COURT 

Tata Steel Limited and Ors. v/s. State of Jharkhand and Ors. (Decided on 13.06.2008) MANU/JH/0527/2008

Whether the Section 11 of the Jharkhand Value Added Tax is ultra vires and violative of Article 301

Entry tax is levied only on the goods which are imported from outside the State and does not apply to the goods which are moved from one local area into another.No data or details have been placed by the State to show as to in in what manner, entry tax so collected has been or being utilized. In the amended provision or in the notification issued pursuant to the said provision, no separate earmarked facility has been planned for the traders. Moreover, there is absolutely no correlation to the revenue generated under the Act and the expenditure incurred by the local authorities for providing the services. Whatever facilities sought to be provided by the Act and the notification, are either the constitutional obligation of the State or statutory duty of the Corporation and the local bodies constituted under the Act. Therefore Section 11 of the Jharkhand Value Added Tax Act and the amendment made therein is ultra vires and unconstitutional

• COMMERCIAL

JHARKHAND HIGH COURT

The Quarry Owners Association Vs. The State of Jharkhand, Secretary, Department of Mines and Geology, Government of Jharkhand, Additional Secretary, Department of Mines and Geology, Government of Jharkhand and Assistant Mining Officer (Decided on 07.08.2008) MANU/JH/0567/2008

Whether the State Government, for enhancement of the royalty at the enhanced rate of interest @ 24% per annum, have a right to demand and realize the said enhanced amount of royalty from the members of the petitioner Association.

The Supreme Court had decided that the rate of interest payable by the Petitioner should be 12% per annum and not 24% per annum.The Petitioner has already availed the benefit of payment of enhanced amount of royalty @ 12% per annum in easy installments. They are therefore liable to pay the difference of amount on interest payable to the State Government for the period from September 1994 to July 1997. The Petitioner has not made any ground whatsoever to quash the impugned orders by which, they have been directed to pay the difference amount of interest @ 12% per annum on the amount of royalty which was payable for the period from 28.9.1994 to July 1997

• LABOUR AND INDUSTRIAL

Delhi High Court

Industrial Disputes Act, 1947 - Section 2J

A.I.I.M.S. Vs. Raj Singh (Decided on 25.08.2008) MANU/DE/1206/2008

Determination of whether AIIMS a hospital and not an industry within the purview of the Industrial Disputes Act, 1947

It was held long back by Constitution Bench of the Apex Court in Bangalore Water Supply v. A. Rajappa MANU/SC/0257/1978 that hospital, research institutes and training centre render valuable material services to the community qualifying for coming within Section 2(J) of Industrial Disputes Act. The same was followed in Dr. V.P. Chaturvedi and Ors. v. Union of India reported as MANU/SC/0617/1991 and V.L. Chandra and Ors. v. AIIMS and Ors. reported as (1990) 3 SCC 381. In view of the above decisions the management is an industry.

BOMBAY HIGH COURT 

Mangal v. State of Maharashtra and District Forest Officer, Ahmednagar (Decided on 20.08.2008) MANU/MH/0732/2008

Whether the Show Cause Notice complied with the requisite requirement

Show cause notice must contain all material allegations on the basis of which the action is proposed to be taken against delinquent person so that he has proper opportunity to meet the same. In the present case, the alleged notice can hardly be said to have complied with said requirement.Said show cause notice does not state that an action as contemplated under Section 61A of the Act is sought to be taken against the present Petitioner.

Whether the Lower Court justified in passing the order of confiscation of the vehicle

Held, action under Section 61A of the Act can be taken only by an officer authorised in that respect by the State Government by Notification in the Official Gazette and not below the rank of an Assistant Conservator of Forests. In the present case, the Order of confiscation has been passed by the Range Forest Officer who was below the rank of Assistant Conservator of Forests. Hence, impugned Order not sustainable.

BOMBAY HIGH COURT 

Employees State Insurance Corporation. v. H. Fillunger and Co. Pvt. Ltd. (Decided on 01.09.2008) MANU/MH/0775/2008

Whether the Letters Patent Appeal, against the judgment in the first appeal arising from the decision of ESI court, is maintainable in view of the amended Section 100-A of C.P.C. as brought into force from 1/7/2002

Where the decision of the Single Judge in the exercise of the appellate jurisdiction, against an original or appellate decree is rendered on and after 1st July, 2002 no further appeal, would lie unless the special statute in question expressly recognize a further right of appeal to the Division Bench. Therefore Section 100A of the CPC as amended with effect form 1st July 2002 is applicable in the instant case and the Letters Patent Appeal is not maintainable on this count. As per the Gangwani&Co.the scheme of Section 30 of the Workmen's Compensation Act and Section 82(2) of the ESI Act. Hence Letters Patent Appeal is not maintainable.

• PROPERTY

BOMBAY HIGH COURT 

Shankargir Khemgir Gosavi and Pratapgir Keshavgir Gosavi Vs.Babu Chima Bhoi (Decided on 04.09.2008) MANU/MH/0783/2008

Justify the legal proposition taken by the Lower Appellate Court to come to conclusion that the Respondents have become owners of the suit premises by adverse possession without there being any specific pleading as required for claim of adverse possession.

Naturally the burden lies on the defendants to establish that they have perfected their title by adverse possession over the suit property for more than 12 years. In their support the court relied upon P.T.Munichikkanna Reddy and Ors. v. Revamma and Ors. MANU/SC/7325/2007, where in the Supreme Court had evolved the legal proposition to consider the various aspects and the requirements of the adverse possession. The Supreme court observed "Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile".

The apex court also held that for the purpose of adverse possession it is not sufficient to establish that there was an intention on the part of the defendants to possess but it is necessary that there should be an intention to dispossess the true owner.

• INDIRECT TAXATION

Unjust Enrichment

Customs

DELHI HIGH COURT

Commissioner of Customs (I&G) v. U.T. Ltd. ( Decided on 25.08.2008) MANU/DE/1202/2008

Refund — Unjust Enrichment — Assessee compelled to pay higher rate of duty, as Assessing Officer opined that impugned goods were to be classified as under Customs Tariff Heading 8531.10 instead of 8530.80 under Customs Tariff Act, 1975, as classified by Assessee — However on appeal, department agreed with Assessee on and granted refund of excess duty paid but it directed that the refund amount be credited to the Consumers Welfare Fund as the incidence of the duty had been passed on to the buyer — Whether incidence of duty had been passed on to the customer

Held, contracted price was determined prior to the Assessee making the import of impugned goods — If the Respondent had passed on the incidence of excess duty, then the contracted price ought to have been increased — But, the contracted price remained the same — Therefore, the excess duty paid was clearly absorbed by the Assessee — Since the incidence of the excess duty had not been passed on to the customer, Assessee would be entitled to the refund — Revenue's appeal dismissed

TRIBUNALS

• EXCISE

Central Excise Act, 1944

Eicher Motors Ltd. and Ors. v. CCE, Indore (Tri -New Delhi) (Decided on 06.06.2008) MANU/CE/0418/2008

Excise - Valuation - Job Work - Whether in determining the value of the motor vehicle, the Actual cost of chassis manufactured by the Principal manufacturer at its end, among other things, is to be taken into account, or the value of the motor vehicle is to be worked out on the basis of 110 per cent of the cost of chassis in accordance with rule 8 read with rule 11 of the central excise valuation (determination of price of excisable goods) rules, 2000

Assessable value of complete motor vehicle cannot be determined on the Basis of the cost of chassis without Including the additional 10 Per Cent of the manufacturing cost of chassis, which is part of the statutorily fixed value of the chassis (in case of Non-Sale) in terms of Rule 8.