SUPREME COURT

• CIVIL

The New Bus Stand Shop Owners Assn. Vs. Corporation of Kozhikode and Anr. (Decided on 18.09.2009) MANU/SC/1696/2009

Corporation of Kozhikode in the State of Kerala and shopkeepers therein entered into licence agreements - Later on Corporation insisted that the licences should be treated as lease - Whether the agreement under which the Appellant-shopkeper has been granted shops and is carrying on business is an agreement for 'lease' or it is a 'licence'?

The difference between lease and the licence is to be determined by finding the real intention of the parties from a total reading of the document, if any, between the parties and also considering the surrounding circumstances. It is clear that the use of terms "lease" or "licence", "lessor" or "licencor", "rent" or "licence fee" by themselves are not decisive. The conduct and intention of the parties before and after the creation of relationship is relevant to find out the intention. In this case the intention of the parties is to create a licence and not a lease and the right of exclusive possession was retained by the Corporation. In that view of the matter, relationship which is created between the Corporation and the shop holders is that of a licensor and licensee and not that of a lessor or a lessee.

• CONSTITUTION

Yash Ahuja and Ors. Vs. Medical Council of India (Decided on 17.09.2009) MANU/SC/1704/2009

Appellants are students who obtained MBBS Qualification from Nepal. They were denied permanent registration in India to get get their names entered in Indian Medical Register on the ground that they had not cleared the prescribed screening test - Whether Section 13 4(A) of Indian Medical Council Act, 1956 requiring for a screening test is discriminatory?

The scope of Section 13(4A) is quite clear and covers all foreign medical institutions falling within the ambit of Sections 12 and 13 of the Act. On a close and careful reading, provisions of the Amending Act of 2001 with the Eligibility Requirement Regulations and Screening Test Regulation, both of 2002, it becomes at once clear that the MCI is obliged to stipulate the screening test in the case of all those candidates, who obtained medical qualification from medical institutions outside India filling within the purview of Sections 12 and 13 of the Act in view of the statutory provisions of Section 13(4A) of the Act. It must be remembered that the Appellants are students, failed to bring on record the facts, which would prima facie show that the standards of medical education prescribed either by the Government of Nepal or by Nepal Medical Council are at par with the standards of medical education available in India. Under such circumstances, there was no scope for Parliament of India to prescribe that students of Nepal or students of other countries prosecuting medical studies in Manipal College of Medical Sciences should also qualify the screening test prescribed before they are enrolled on Medical Register maintained by the State Medical Council or get their names entered in Indian Medical Register.

• CONSTITUTION / ENVIRONMENT

Tirupur Dyeing Factory Owners Association Vs. Noyyal River Ayacutdars Protection Association and Ors. (Decided on 06.10.2009) MANU/SC/1708/2009

A Public Interest Litigation was filed for seeking directions for preservation of ecology and for keeping the Noyyal river in Tamil Nadu free from pollution before Madras High Court - Present Review Petition has been filed by the Appellant against the directions issued earlier.

The members of the Appellant Association had been permitted to continue their business, subject to the compliance of all the directions including the payment of dues etc. issued by the Court within a period of three months from the date of the judgment. The Appellant Association are bound to meet the expenses of removing the sludge of the river and also for cleaning the dam. The principles of "polluters-pay" and "precautionary principle" have to be read with the doctrine of "sustainable development". It becomes the responsibility of the members of the Appellant Association that they have to carry out their industrial activities without polluting the water. A large number of farmers have suffered because of the pollution caused by them. Industries carrying out activities hazardous to environment liable to compensate for harm caused by them to the affected persons and to take necessary measures to prevent environmental degradation.

• CRIMINAL

Arulvelu and Anr. Vs. State represented by the Public Prosecutor and Anr. (Decided on 07.10.2009) MANU/SC/1709/2009

Acquittal of accused by the Trial Court was reversed by the High Court and thus accused was sentenced - Whether the High Court was justified in reversing the decision of the Trial Court as two conflicting opinions are possible?

In an appeal against acquittal, unless the judgment of the trial court is perverse, the Appellate Court would not be justified in substituting its own view and reverse the judgment of acquittal. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the Trial Court. The Trial Court's acquittal bolsters the presumption that he is innocent. This fundamental principle must be kept in view while dealing with the judgments of acquittal passed by the Trial Court. In the present case the judgment of the trial court cannot be termed as perverse. The High Court ought not to have substituted the same by its own possible view. The High Court cannot stand the scrutiny of the well settled legal position which has been crystallized

HIGH COURTS

• CIVIL

BOMBAY HIGH COURT

Vimal Builders, through its Partner Kishor Nandlal Shah Vs. Ketan Kantilal Thakkar and Ors. (Decided on 16.09.2009) MANU/MH/0975/2009.

When Plaintiff's case was pending before the Court he came to know that the Respondent Nos. 1 and 2 have vested rights in the third party - Plaintiff filed subsequent suit for the specific performance of the agreement - Trial Court held against the Plaintiff that Order II Rule 2 (3) of the Code mandates to obtain leave of the Court and thus suit is liable to be dismissed - Whether the Trial Court was Justified in holding that subsequent suit is liable to be dismissed because Plaintiff has not obtained grant of leave?

Leave was required to be obtained prior to filing of the subsequent suit as per Order II Rule 2 (3)of the Code. Decision of granting leave under Order II Rule 2 (3) of the Code will depend upon the facts and circumstances of each case. Court would consider all the circumstance including the bona fide of the application and liklihood to cause prejudice to the Defendants. Since leave was not obtained by the Plaintiff prior to institution of subsequent suit, the Trial Judge was justified in dismissing suit under Order VII Rule 11(d) of the Code

• FAMILY

BOMBAY HIGH COURT

Mrs Deepalakshmi Sachin Vs. Sachin Rameshrao Zingade (Decided on 24.9.2009) MANU/MH/1017/2009

The award of decree of divorce by the Trial Court on ground of cruelty under Section 13 of the Hindu Marriage Act was challenged - Appellant clarifies her position and requests quashing of the order granting divorce - Whether the trial court completely misread the evidence in coming to the conclusion that the Respondent was subjected to cruelty at the hands of the Appellant and thus granted the divorce?

The trial court has erred in going in detail about the complaint filed under the Domestic Violence Act and ruling that there is a contradiction in the allegations of the Appellant in her complaint and her admission in cross examination. The Appellant, in order to save her matrimonial home as well as for the benefit of their daughter has submitted that she is willing to go and reside with the husband and she is even ready to tolerate his relationship with other lady. It may not amount to an act of cruelty which can be attributed to the wife. In a given case, if the circumstances so warrant, wife may have some suspicion about the act and behaviour of her husband and if she is having some suspicion, that itself may not amount to an act of cruelty. If ill-treatment is meted out by in-laws and when the law has provided remedy, there is nothing wrong if a complaint to that effect is filed even against in-laws. That ground itself should not be taken as the basis for dissolving the marriage. Hence, this is not a fit case in which the marriage between the Appellant and the Respondent is required to be dissolved by passing a decree for divorce on the ground of alleged cruelty attributed to the Appellant by the Respondent.

• SERVICE

DELHI HIGH COURT

Gauri Jha & Ors Vs. Hardyal Municipal Public Library & Ors. (Decided on 25.09.2009) MANU/DE/2469/2009

Petitioner challenges the Order of annulment of the appointment on grounds that the impugned Order is opposed to natural justice and have not laid down any rules for recruitment and prescription of any eligibility / qualification for any post - Whether the action of the management in annulling the appointments in question is justified in the lights and circumstances of the case?

The enquiry report is a self speaking one. It does not violate any of the principles of natural justice. Large scale appointments in question have been hastily made against non existent posts and that too without any budgetary sanction. It is no wonder that the Respondent- Library has no funds to pay the salary etc. to the illegally recruited 788 employees, which includes 96 Petitioners of these two petitions. This vital aspect remains unchallenged by the Petitioners in the Representation (Annexure P-10) as well in these petitions. Within a short period of few months, appointments of Petitioners have been regularized without any justification, which speaks volumes of extraneous considerations in making of these appointments. Therefore, impugned action of the Management of the Respondent-Library in annulling the appointment of Petitioners is fully justified.