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SUPREME COURT

CONSTITUTION

Principal, Kendriya Vidyalaya and Ors.Vs. Saurabh Chaudhary and Ors. (Decided on 05.11.2008)

Whether the school authority can decline the admission to its own student because his marks were lower than the cut off fixed for admission to class XI in the admission guidelines 

One can have no objection to a school laying down cut off marks for selection of suitable stream/course for a student giving due regard to his/her aptitude as reflected from the class X marks where there are more than one stream. But it would be quite unreasonable and unjust to throw out a student from the school because he failed to get the cut off marks in the class X examination. After all the school must share at least some responsibility for the poor performance of its student and should help him in trying to do better in the next higher class. The school may of course give him the stream/course that may appear to be most suitable for him on the basis of the prescribed cut off marks. In the present case it would have been perfectly open to the appellants to offer admission to the boy in class XI in streams/courses other than science stream with Mathematics on the basis of the prescribed cut off levels of marks, had such courses been available in Central School No. 2, AFS, Tambram

  

CRIMINAL

State of Andhra Pradesh Vs. M. Madhusudhan Rao (Decided on 24.10.2008)

Whether the harassment committed for the purpose of coercing a woman or any other person related to her to meet an unlawful demand for property et. Amounts to "cruelty" under Section 498A of the IPC

A new dimension to the concept of "cruelty", Clause (a) of Explanation to Section 498A I.P.C. postulates that any wilful conduct which is of such a nature as is likely to drive a woman to commit suicide would constitute "cruelty". Such wilful conduct, which is likely to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman would also amount to "cruelty". Clause (b) of the Explanation provides that harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand, would also constitute "cruelty" for the purpose of Section 498A I.P.C. The definition stipulates that the harassment has to be with a definite object of coercing the woman or any person related to her to meet an unlawful demand. In other words, for the purpose of Section 498A I.P.C. harassment simpliciter is not "cruelty" and it is only when harassment is committed for the purpose of coercing a woman or any other person related to her to meet an unlawful demand for property etc., that it amounts to "cruelty" punishable under Section 498A I.P.C.

 

Manjunath Ganesh Hegde and Ors. Vs. State of Karnataka (Decided on 05.11.2008)

Whether High Court failed to re-appreciate the evidence especially eye witnesses

The High Court partly allowed the appeal, but there is no reasoning or basis as to what weighed with the High Court in confirming the order of acquittal recorded in favour of the appellants-accused for certain offences and for setting aside the order of acquittal and ordering conviction of the accused for offences punishable under Sections 324 and 325 read with Section 34, IPC.The High Court was exercising appellate power as the first appellate Court. It was, therefore, expected of the High Court to consider the evidence of Prosecution Witnesses, particularly because the three witnesses were eye-witnesses as also injured witnesses. The High Court had failed to discharge its duty of exercising appellate power as a regular court of appeal. The order passed by the High Court, therefore, deserves to be set aside by remitting the matter for fresh disposal in accordance with law.

 

Mohd. Azad @ Samin Vs. State of West Bengal (Decided on 05.11.2008)

Whether the extra judicial confession can be accepted as the basis for conviction 

An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility.

  

SALES TAX

S/S Kanpur Edibles Pvt. Ltd.Vs. Commissioner, Trade Tax, U.P. (Decided on 24.10.2008)

Whether an Order of assessment or re-assessment which was in existence at the time notice was issued continues to be effective

Held, an order of assessment or re-assessment which was in existence at the point of time the notice was issued, continues to be effective unless it is varied - Revisional authority has substituted the original orders of assessment in the garb of testing the legality and/or propriety of the order canceling the notices - Such a course is not countenanced and has no legal basis. Therefore, High Court was not justified in interfering with the order of the Tribunal. The impugned orders of the High Court are set aside.

  

EXCISE

Commissioner of Central Excise, Mumbai Vs. National Organic Chemical Industries Limited (Decided on 06.11.2008)

Whether ethylene and propylene manufactured by the respondent assessee and used in its factory in the further manufacture of the same goods would be entitled to the benefit of exemption contained in notification No. 217/86.

The Tribunal's finding that the ethylene and propylene used as refrigerant has been used in or in relation to the manufacture of the same goods. The inevitable and automatic emergence of ethane and methane, therefore, by itself is no ground for denying the exemption contained in the notification. The Tribunal came to the categoric finding that the respondent could not have manufactured ethylene and propylene without manufacturing its by-products ethane and methane. The Tribunal held that in any technology the emergence of ethane and methane was inevitable and hence while it is no doubt correct to say that the ethylene and propylene have been used in or in relation to the manufacture of ethane and methane, the identical quantity of the same goods has simultaneously been used in the manufacture of ethylene and propylene. The emergence of ethane and methane, therefore, cannot be a ground to deny the benefit of exemption to the respondent. No interference is called for in the well-reasoned judgment/order of the Tribunal. The appeal being devoid of any merit is accordingly dismissed.

      

   

HIGH COURT

LIMITATION/CIVIL

DELHI HIGH COURT

Universal Builders and Contractors Vs. Sheila Singh Uppal and Ors. (Decided on 17.10.2008) MANU/DE/1457/2008

'Sufficient cause'- court should adopt liberal approach while determining whether sufficient cause exists- application under Section 5 of Limitation Act, - Whether oral prayer for condonation under Section 5 of Limitation Act is sufficient

The term 'sufficient' cause has not been defined anywhere. However in close nexus the judgment of Supreme Court in the case of Devinder Pal Sehgal and Anr. v. Partap Steel Rolling Mills Pvt. Ltd. and Ors. MANU/SC/0786/2001, can be referred here. The supreme court clearly laid down the above proposition that an oral prayer for condonation under Section 5 of Limitation Act is sufficient. Formal application in writing is not necessary for granting relief under Section 5 of Limitation Act. Thus the trial court rightly condoned the delay in filing an application under Order 9 Rule 9 Code of Civil Procedure even in the absence of any separate application under Section 5 of limitation act.

  

TENANCY

DELHI HIGH COURT

Smt. Sudesh Kumari Soni and Anr. Vs. Smt. Prabha Khanna and Anr. (Decided on 03.10.2008) MANU/DE/1458/2008

Delhi Rent Control Act - Sections 4 and 14(1)- Eviction petition- alternative accommodation available with landlord- adverse position of landlord- What are the relevant or substantial claims in such eviction petitions which the Court can entertain.

If it is admitted that alternative accommodation is available and in possession of the petitioners (landlords) is in dilapidated condition and the said portion is not in habitable condition than there is no adverse position. The Supreme Court in Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta MANU/SC/0432/1999, at pg-2512 in para 14, held that the availability of an alternate accommodation with the landlord i.e. an accommodation other than the one in occupation of the tenant wherefrom he is sought to be evicted has a dual relevancy. Firstly, the availability of another accommodation, suitable and convenient in all respects as the suit accommodation, may have an adverse bearing on the finding as to bonafides of the landlord if he unreasonably refuses to occupy the available premises to satisfy his alleged need. Availability of such circumstance would enable the Court drawing an inference that the need of the landlord was not a felt need or the state of mind of the landlord was not honest, sincere, and natural. Secondly, another principal ingredient of Clause (e) of Sub-section (1) of Section 14 which speaks of non-availability of any other reasonably suitable residential accommodation to the landlord, would not be satisfied. Wherever another residential accommodation is shown to exist as available than the court has to ask the landlord why he is not occupying such other available accommodation to satisfy his need. The landlord may convince the court that the alternate residential accommodation though available is still of no consequence as the same is not reasonably suitable to satisfy the felt need which the landlord has succeeded in demonstrating objectively to exist. Needless to say that an alternate accommodation, to entail denial of the claim of the landlord, must be reasonably suitable, obviously in comparison with the suit accommodation wherefrom the landlord is seeking eviction. Convenience and safety of the landlord and his family members would be relevant factors. While considering the totality of the circumstances, the court may keep in view the profession or vocation of the landlord and his family members, their style of living, their habits and the background wherefrom they come.

 

CONTRACT

BOMBAY HIGH COURT

Avdel Tools and Services, A Partnership Firm registered under the Indian Partnership Act, 1932 through its Partner Mr. Gobind G. Bulchandani Vs. Trufit Fasteners Private Limited, A Company, registered under the provisions of the Companies Act, 1956 (Decided on 16.10.2008) MANU/MH/1001/2008

Contract - total sale consideration agreed between the parties - consent from Maharashtra Industrial Development Corporation (MIDC) was to be obtained by the parties - stipulated within a period of 45 days from the date of the application, the advance of Rs. 20 lakhs was to be returned to the Purchaser without any interest within 7 days of the receipt of the denial from MIDC anmd the vendor was to hand over vacant and peaceful possession of the property in question before the execution of the document- position of the Appellant- Whether it was necessary for/expected of the Appellant to demonstrate the money to show his readiness and willingness to perform his part of the contract.

The Bombay high court held that for the Appellant to bring to the notice of the Court that the Appellant possessed and/or could arrange for a fund for the purposes of making the payment to fulfill his obligations under the terms of the contract. That these are the matters of evidence and the chance to prove that they were possessed of sufficient means to fulfill their obligations as per the terms of the MOU should have been given to appellant. This principle would also be of help to the Court while deciding an interlocutory application for grant of injunction. No doubt readiness and willingness of the purchaser is a condition precedent to the grant of relief at final stage or even for that matter at interlocutory stage. Readiness and willingness must exist at all relevant times. But `readiness and willingness' is a term which has to be construed with certain clarity and has to be given a meaning relatable to the facts and circumstances of a given case. It has been repeatedly held by the Courts that readiness and willingness essentially does not mean exhibition of money by the purchaser. This attains significance and relevance for the reason that grant or refusal of injunction in a Suit for specific performance would essentially depend upon prima facie satisfaction of the ingredients essential for decree for specific performance.

BOMBAY HIGH COURT

The Coal India Limited and The Western Coalfields Limited Vs. Central Bank of India and Ors. (Decided on 06.10.2008) MANU/MH/0995/2008

Indian Contract Act - Section 56; Coal Mines (Taking Over of Management) Act, 1973 - Section 6 and 6(10); Coal Mines Nationalisation Act, 1973 - Sections 6, 19, 19(3) - Remittance - Whether, in view of the provisions of the Coal Mines Management Act, the appellants could be held liable for the amount received by the custodian during the period of management

According to the provisions of section 19, it is clear that the Central Government alone shall be entitled to receive the money due to the erstwhile owner of the mines, from the person who owed that money. Where defendant no.16 was obliged statutorily to make payment to defendants no.15(a) and (b) alone. The custodian appointed under the Taking Over of Management Act issued Circular (Exh.72) to all customers of coal mines that under the Act they are obliged to make payment to the coal mines authority alone of pretake over dues also. Exh.82 is the letter written by defendant no.16 that the amount was remitted to it in view of the Circular of the custodian and the matter should be settled by the plaintiff and the defendants no.15(a) and (b) mutually by adjusting the accounts. There is, therefore, no doubt that the amount is recovered by defendants no.15(a) and (b) i.e. appellants by virtue of mandate of Sub-section 10 of Section 6 of the (The) Coal Mines (Taking Over of Management) Act, 1973 and Circular issued by the Custodian. Therefore, the Central Government shall receive, to the exclusion of all other persons, any monies due to the coal mine realised after the appointed day notwithstanding that such receipt pertains to a transaction made at any time before the appointed day.

  

PROPERTY

BOMBAY HIGH COURT

Godavari Marathwada Patbandhare Vikas Mahamandal through its Executive Engineer, Kadva Canal Division Vs. The State of Maharashtra through Collector, for himself and for Special Land Acquisition Officer, Vaitarna Hydro Electric Project (Notice to be served through G.P. High Court Bench at Bombay) and Chandrabhan S/o Laxman Zankar (Decided on 16.10.2008) MANU/MH/0988/2008

Section 18 of Land Acquisition Act, 1894 - Person interested - Godavari Marathwada Irrigation Development Corporation, a statutory body established under the provisions of Maharashtra Godavari Marathwada Irrigation Development Corporation Act No. 23 of 1998 - whether the Corporation would be a necessary or a proper party to such proceedings for determination of compensation though they are not a necessary party but being a proper party it must be impleaded in the proceedings before Reference Court.

The local authority or a company has a right to participate in the proceedings for determination of compensation though they are not a necessary party but being a proper party it must be impleaded in the proceedings before Reference Court so as to enable it to oppose the claim for enhancement of compensation. The Court further clarified that such authority or company has the right to invoke remedies available under Article 226 of the Constitution of India as well as under the Land Acquisition Act. That is the wide scope given to the rights of the authority or the company for whose benefit the land is acquired. The Supreme Court in the case of Neyvely Lignite Corporation Ltd. v. Special Tahsildar (Land Acquisition) Neyvely and Ors. MANU/SC/0198/1995 explained the term `person interested'. It was held that, the Court held that any local authority or the company for whose benefit the land is acquired is a proper if not a necessary party within the meaning of Order 1 Rule 10 of the Code of Civil Procedure and thus they have a right to participate in the reference proceedings under Section 18 of the Act. The Court held as under:

These are very valuable and salutary rights. Moreover in the language of Order 1 Rule 10 CPC, in the absence of the beneficiary who ultimately is to bear the higher compensation, no complete and effectual determination of binding just and proper compensation to the acquired land would be made. So it is concomitantly a proper party if not a necessary party to the proceedings under Order 1 Rule 10 CPC. The denial of the right to a person interested is in negation of fair and just procedure offending Article 14 of the Constitution. It is true that Section 50(2) of the Act gives to the local authority or the company right to adduce evidence before the Collector or in the reference under Section 18 as it was specifically stated that in any proceedings held before the Collector or the Court, the local authority or the company may appear and adduce evidence for the purpose of determining the amount of compensation. However, it has no right to seek reference. The operation of Section 3(b) in conjunction with Section 50(2) cannot be limited within a narrow compass. The right given under Sub-section (2) of Section 50 is in addition to and not in substitution of or in derogation to all the incidental, logical and consequential rights flowing from the concept of fair and just procedure consistent with the principles of natural justice.

MADRAS HIGH COURT 

Sundarambal, Thillaikarasi, Pachayappan and Sheik Mahaboob Basha Vs. Panneerselvam and Jambulingam (Decided on 14.10.2008) (MANU/TN/0941/2008) 

Registration Act - Section 49; Stamp Act - Section 35 - Lease Deeds- stamp duty - the lease was for residential purpose and not for agricultural purpose; lease was for indefinite period; the rental was on monthly basis; thus requisite Stamp Duty i.e. annual rent for 10 years is to be paid; the lease deeds are not admissible in evidence and in order to accept the same in evidence necessary Stamp Duty Penalty has to be paid; and in the absence of registration and on account of insufficient stamp duty and non payment of stamp duty penalty, those documents are inadmissible in evidence.

The lease deeds are not admissible in evidence and in order to accept the same in evidence necessary Stamp Duty Penalty has to be paid. In Satish Chand Makhan and Ors. v. Govardhan Das Byas and Ors.(1984 SC 143) , the Supreme Court held that unregistered lease deed cannot also be taken into consideration on the ground that such deed can be admitted in evidence for collateral purpose, invoking proviso to Section 49 of Registration Act, as terms of lease are not a collateral purpose within its meaning. On a careful understanding of the above said decision, it could be seen that the terms of lease are not collateral purpose and therefore, unregistered lease deeds cannot be taken into consideration for admitting the same in the evidence for main purpose.

 

COMMERCIAL

BOMBAY HIGH COURT

Aatam Gems, Shailesh H. Kothari, Salil Shailesh Kothari and Mrs. Pratibha Shailesh Kothari Vs. Oriental Bank of Commerce (Decided on 16.10.2008) MANU/MH/1004/2008

Service of notice upon the Appellants - a recovery certificate issued by the Presiding Officer in mode and manner prescribed under Sections 25 and 28 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 - Property attached as per the provisions - The Recovery Officer held the Bank had a right to proceed against Defendant Nos.2 and 5 to whom the property belonged and sell the property in terms of the order of recovery certificate - The Proclamation of Sale issued was also found not defective - Defendants filed an Application under Section 30 before the Debt Recovery Tribunal - Appeal dismissed by the Debt Recovery Tribunal - Held, The Appellants did not choose to resort to remedy by depositing the amount - Conditions of Service of notice under Rule 54 - Writ Petition filed - Whether there is a violation of Rule 54 specified in Second Schedule of Income Tax Act, 1961 related to procedure for recovery of debts due to Bank

Held, the Petitioner have suffered prejudice as a result of rejection of the objections and they were ready and willing to pay the amount and redeem the mortgage which is their subsisting right. The attempts of the defaulter-Petitioners lack bona fide as at no point of time had actually offered the decreetal amount to defer and/or raise objections to the conduct and confirmation of sale of mortgaged property and the application also lacks bona fide for not taking recourse to the provisions of Rule 61 of the Rules. Once the sale is confirmed, a definite right accrues in favour of the auction purchaser. Under Rule 63 where no application is made for setting aside the sale or where such an application is made and just allowed by the Recovery Officer, the Tax Officer shall upon deposit of the amount make an order confirming the sale and the sale shall become absolute. The entire sale of the property is effected through the process of law i. e. the provisions of the Debt Recovery Act and the Rules specified under Schedule II of the Income Tax Act, 1961. There is no proceedings in the entire execution of the recovery certificate where the Petitioners have not participated effectively and nothing was done in the absence of the Petitioners and the material objection with regard to deposit of the entire decretal amount and proper declaration to be made was accepted by the Recovery Officer and therefore, Petition was dismissed.

   

CIVIL

MADRAS HIGH COURT

K.R. Ramaswamy @ Traffic Ramaswamy Vs. State rep. by Chief Controller, Explosives Department and Ors. (Decided on 20.10.2008)MANU/TN/0937/2008

Duty of The Commissioner of Police - Licence for the sale and storage of fireworks - Safety Norms under The Explosives Act, 1884 - Large quantity of fireworks and crackers are stored in several shops - These shops busy doing brisk business of selling crackers - Complete go-by to the the safety norms - No proper maintenance of exit point and the requisite distance between the shops not maintained - The State cannot deny its responsibility to comply fully with the rules and regulations before granting or renewing any temporary licence - Whether public authorities liable for checking the compliance of safety norms

The Commissioner of Police has to take initiative and precautions in compliance with The Explosives Act, 1884 while granting temporary licence for the sale and storage of fireworks and crackers. Held, Court can take judicial notice of the fact that due to the callous discharge of duty by various public authorities in recent times, innocent people have lost their lives. The Court can also take judicial notice of the fact that during the ensuing Diwali, these shops will be crowded by hundreds of people, and in such an event, maintenance of safety regulations is of the utmost importance. 

 
     
 
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