SUPREME COURT

• ENVIRONMENT

M. Nizamudeen v. Chemplast Sanmar Limited and Ors. (Decided on 10.03.2010) MANU/SC/0153/2010

Environment - Pollution - Section 2(d) Environment (Protection) Act, 1986 - Dismissal of PIL filed against proposed setting-up of a project for manufacturing Poly-Vinyl Chloride (PVC) - Hence, present appeal- Whether High Court was justified in dismissing the Writ Petition? 

Held, Uppanar river and its banks at the relevant place where the pipelines laid by the Chemplast pass do not fall under CRZ III area as per 1996 Plan and no environmental clearance needed for such pipelines- Project established by investing huge amount of about Rs. 600 crores and has already been commissioned after obtaining necessary approvals and, therefore, not in the interest of justice nor in the public interest to interfere with the project - Civil Appeal and Writ Petition dismissed.

Interpretation of Statute - Exception clause - Interpretation of - 

Held, If exception has been added to remedy the mischief or defect, it should be so construed that remedies the mischief and not in a manner which frustrates the very purpose - If the language used is capable of bearing more than one construction and if construction is employed that results in absurdity or anomaly, such construction has to be rejected and preference should be given to such a construction that brings it into harmony with its purpose and avoids absurdity or anomaly as it may always be presumed that while employing a particular language in the provision absurdity or anomaly was never intended-Expression, `in the port areas' should be read as, `in or through the port areas' - Civil Appeal and Writ Petition dismissed.

• SERVICE

L.I.C. of India and Anr. v. Ram Pal Singh Bisen (Decided on 16.03.2010) MANU/SC/0170/2010

Service - Dismissal - Principles of Natural Justice - Non-adherence thereto - Consequence thereof - Order 12, Rules 1, 2, 2A and 3A of Civil Procedure Code, 1908 - Respondent dismissed by the Disciplinary Authority on the basis of inquiry Officer's Report - Departmental Appeal preferred by Respondent dismissed - Trial Court in suit for Declaration upheld the plea of Respondent and held that no reasonable, proper and sufficient opportunity given to the Respondent to defend himself in the departmental enquiry and directed for the reinstatement with consequential - Thus, Appellants preferred present appeal - Whether the action of the Appellants resulting in Respondent's dismissal from service, rejection of appeal and further representation, was in violation of the principles of natural justice, if so, then to what relief's Respondent entitled to? 

Held, Neither copy of Inquiry Report made available to Respondent nor was it disclosed in the show cause notice as to on what premise finding of guilt was recorded by Inquiry Officer while order of dismissal came to be passed against him - Appellants also failed to serve any notice of admission or denial of documents on the Respondent during trial as contemplated under Order XII Rule 2 of the Code of Civil Procedure - Respondent denied opportunity of hearing - Trial Court have committed no error in coming to the conclusion that Respondent denied opportunity of hearing and thus the whole proceedings stand vitiated by non-adherence to the principles of natural justice - Thus, all subsequent actions taken thereto, would automatically fail - Respondent got retired in the year 2000, after having attained age of superannuation, no re-instatement but monetary benefit suffice compensation to him - Appeal dismissed

Evidence- Evidentiary value of documents filed by Appellants and marked as Exhibits - Validity of - Whether in absence of any oral evidence having been tendered by the Appellants, and especially in absence of putting their own defence to the Respondent during his cross examination in the Court, what is the effect of documents filed by Appellants and marked as Exhibits?

Held, mere admission of document in evidence does not amount to its proof - Mere marking of exhibit on a document does not dispense with its proof, which is required to be done in accordance with law - Thus contents, of the document cannot be proved by merely filing in a Court - In the present case, it was the duty of the Appellants to have proved documents Exh. A-1 to Exh. A-10 in accordance with law, which they have failed to do - Even if it is assumed that said documents have been admitted by Respondent and were then exhibited and marked, no advantage thereof could be accrued to the Appellants - Filing of the Inquiry Report or the evidence adduced during the domestic enquiry would not partake the character of admissible evidence in a court of law - Appeal dismissed

• CRIMINAL

Jiten Besra v. State of West Bengal (Decided on 10.03.2010) MANU/SC/0154/2010

Criminal - Murder - Conviction based on Circumstantial evidence - Section 302 of Indian Penal Code, 1860 (IPC) - Accused charged for the murder of his in-laws and convicted thereof - Both Trial Court and High Court relying on the circumstantial evidence convicted him for the offence under Section 302, IPC - Hence present Appeal - Whether the Courts below erred in relying upon the unproved circumstances and also even on the witnesses examined including accused's wife which was not sufficient to reach the only conclusion regarding the guilt of the accused?

Held, FIR didn't suggested that there was such a fierce enmity between the accused and the deceased persons or even Malati (accused's wife) - Accused might be having strained relationship with the wife and her parents but it is clear that he was on visiting terms with them and thus the strained relationship was not of such fierce nature that the accused would go to the extent of committing murder of both the parents-in-law - Factor of enmity relied upon by the Courts below non justified - Blood-stained clothes of the accused, of no consequence as the clothes of the accused were never sent to the Forensic Science Laboratory - Even the presence of the accused in the house not proved- Presence of the accused in the village by itself cannot amount to an incriminating circumstance - Thus, in the present case all the alleged incriminating circumstances could not be said to have been established - It is found that the circumstances could not point out towards the guilt of the accused, without any other inference being probable, the accused must get the benefit of doubt - Appeal allowed

HIGH COURT

• CUSTOMS

BOMBAY HIGH COURT

Union of India (UOI) through the Commissioner of Customs (General) Personnel and Establishment (CHA Section) v. East and West Shipping Agency (Decided on 09.03.2010) MANU/MH/0174/2010

Customs - Judicial proceedings- Appeal against the Order of Settlement Commissioner - Respondent's CHA licence was suspended by Commissioner on the ground that the power of attorney holder was involved in a mis-declaration of goods imported case - Settlement Commissioner granted immunity to the power of attorney holder on the grounds of no conscious knowledge - Upon departmental enquiry, the Commissioner of Customs upheld the revocation of Respondent's licence - Respondents challenges the order of Commissioner of Customs before the CESTAT on the basis of order passed by Settlement Commission- CESTAT allowed the Appeal by holding that since the Settlement Commissioner having granted immunity to Attorney holder, the Commissioner could not have revoked the CHA licence - Hence, the present appeal against the impugned order of CESTAT and setting aside the order of suspension passed by the Commissioner of Customs- Whether the CESTAT erred in setting aside the order of order of suspension passed by the Commissioner of Customs on the basis of the order of the Settlement Commission - Whether the order passed by the Settlement Commissioner was without jurisdiction or it operates as Res judicata between parties?

Held, the order passed by the Settlement commissioner under the Customs Act, 1962 is within the judicial proceedings and a judicial order is pronounced thereto - The impugned order of Settlement commissioner have not challenged by the Appellant ever. Thus, where the Appellants has not challenged the order passed by the Settlement Commissioner then it is presumed to be accepted by the Appellant. It will operates as Res Judicata between the Parties-Appellants cannot now turn around and say that the Tribunal erred in passing the impugned order on the basis of the same. The appeal is dismissed

• TENANCY

BOMBAY HIGH COURT

Ashraf Abdulla v. Union of India (UOI) and Anr. (Decided on 09.03.2010) MANU/MH/0173/2010

Tenancy - Eviction - Subletting - Petitioner was running a restaurant at the premises of Respondent No. 3 in the ground and first floor - On inspection Respondent No. 3 found that the Petitioner's restaurant was running on ground floor only and one Cable Video Corporation (C.V.C.) was also carrying on business on the first floor without their permission of - Respondent No.3, terminated the tenancy of Petitioner's Restaurant alleging various subtenancies and also sought eviction of the Petitioner and the C.V.C from the said public premises - Learned Principal Judge of City Civil and Sessions Court held that single premises ,which was tenanted to Restaurant was partitioned and Subletted - Hence present petition- Whether the Learned Principal Judge of City Civil and Sessions Court were justified in holding Petitioner liable for subletting?

Held, case of sub tenancy and/or unauthorized occupation can be inferred essentially from the admitted facts between the parties. Lack of transfer of tenancy rights in the name of the Petitioner's father and bifurcation of the premises by partition on the staircase, thereafter converting one unit into two etc shows that there is subtenancy. Learned Principal Judge of City Civil and Sessions Court, Mumbai has correctly appreciated the evidence and has given correct reasoning with regard to the issue. Impugned Order cannot be faulted and needs no interference. Petitioner has not discharged the burden of showing that the tenanted premises has not been subletted. Consequently, he is in authorized occupation. Writ Petition is dismissed

• ELECTION

BOMBAY HIGH COURT

Ravikiran S/o Abasaheb Deshmukh and Dattatraya S/o Mahadeo Kachgunde v. The Additional Commissioner, Aurangabad Division and Ors. (Decided on 21.01.2010) MANU/MH/0041/2010

Election - Disqualification - Section 14(1)(j)(i) of the Bombay Village Panchayat Act, 1958 (BVP Act) - Respondent No 3 elected in Panchayat Election as Sarpanch - Petitioners sought disqualification under section 14(1)(j)(i) of BVP Act of Respondent No. 3 on ground that he had three children and the third child was born after cut-off date - Additional Collector disqualified Respondent No 3 after perusing the facts brought before him - Order Challenged - Additional Divisional Commissioner, Respondent No 1 upheld election of Respondent No 3 -Petitioners challenged order of Respondent No 1 - Hence the present petition -Whether Respondent No 1 exercised his Appellate authority with due care and caution?

Held, order of Appellate Authority not founded on good material and reasons ascribed not convincing. Respondent No. 1 should not have interfered with the order of the Additional Collector when it was based on the material gathered during course of the enquiry. Impugned order set aside. Petition allowed.

• DIRECT TAXATION

DELHI HIGH COURT

Van Oord ACZ India (P) Ltd. v. Commissioner of Income Tax (Decided on 15.03.2010) MANU/DE/0675/2010

TDS - Assessee company incorporated in India, is a wholly owned subsidiary of the company incorporated in Netherlands, was engaged in the business of dredging, contracting, reclamation and marine activities - Appellant filed an application with DCIT for issuing NIL tax withholding certificate in respect of reimbursement of various costs (mobilization and demobilization charges ) required to be made by it to VOAMC which DCIT refused - Assessee declared loss after claiming deductions for aforesaid costs which the Assessing Officer disallowed invoking provisions of Section 40(a)(i) - On appeal, CIT(A) upheld the disallowance - On further Appeal, Tribunal upheld the disallowance - Hence present appeal - Whether the appellant was liable to deduct tax at source under Section 195(1) of the Act in respect of the mobilization and demobilization costs reimbursed by the appellant to VOAMC? - Whether Tribunal was correct in holding that in terms of the provisions of Section 195 of the Act, the payer is obliged to deduct tax at source in respect of any sum paid to a non-resident and the payee was not required to determine whether the said sum is chargeable to tax or not under the provisions of the Act?

Held, liability to deduct at source arises only when the sum paid to the non-recipient is chargeable to tax. Once that is chargeable to tax, it is not for the assessee to find out how much amount of the receipts is chargeable to tax, but it is the obligation of the assessee to deduct the tax at source on the entire sum paid by the assessee to the recipient. But in this case the Court was not confronted with a situation where the amount paid was not chargeable to tax at the hands of non-residents at all. On plain reading of Section 195 it can be reasonably said that the obligation to deduct tax at source is attracted only when the payment is chargeable to tax in India. After analyzing the Scheme of Section 195 the Court holding determination of Assessing Officer being tentative stated that in case it is ultimately found in the assessment proceedings relating to the recipient that he was not liable to pay any tax on the sums received, the assessee cannot be treated in "default" inasmuch as Section 195(1) of the Act casts an obligation to deduct the tax at source on the sum 'chargeable under the provisions of this Act'.

• LABOUR AND INDUSTRIAL LAWS

DELHI HIGH COURT

Delhi Transport Corporation v. Sri Chand (Decided on 22.03.2010) 

Disciplinary Proceedings - Show Cause Notice proposing Punishment of removal from service - Quashing thereof sought - Notice challenged on the ground of lack of original jurisdiction in prescribing punishment, inadequate evidence - Tribunal held that there was no cogent evidence sufficient to hold the aggrieved party guilty - Challenge against findings of Tribunal as to whether to be interfered with and whether statement of Complainant sufficient and good enough to determine the guilt of other party

No cogent evidence from which it can be inferred that alleged incident had taken place. Mere statement of the Complainant without any other evidence cannot be sufficient to hold that there is evidence against the other party, and in the circumstances, the inferences of the Tribunal that the charges alleged are based on no evidence, cannot be faulted. It is true that the jurisdiction of the Tribunal in judicial review is limited. Disciplinary proceedings being quasi-criminal in nature, there should be some cogent and reliable evidence to prove the charge. It cannot be lost sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the evidence and documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. The enquiry officer's finding was based merely on the suspicion which could not be allowed and the Tribunal was justified in not upholding such an inference which was not based on preponderance of probability but was based and mere surmise and conjectures. Instant case such where the punishment of removal from service was awarded merely on assumption and surmises and conjectures ignoring not only the prosecution witnesses but even the other witnesses. Petition dismissed.

• CRIMINAL LAWS

DELHI HIGH COURT

Prem Pal v. State (Decided on 26.03.2010)

Law of last seen evidence - Conviction on charge of Murder - Appeal against conviction on the ground of insufficient circumstantial evidence

The law of last seen evidence being incriminating requires that it has been successfully proved by the prosecution that the accused and the deceased were last seen together in such circumstances that with reference to the proximity of the time when the deceased was seen alive in the company of the accused and the time of death as also the proximity of the place where they were last seen together and the place where from the dead body was recovered, requires an explanation from the accused as to how and when they parted company and in the absence of any credible explanation the presumption of guilt against the accused may be drawn. The Rule of Law is clear. The proof of fact pertaining to a circumstance wherefrom an adverse inference is to be drawn has to be of the highest order i.e. the fact wherefrom inference is to be drawn has to be proved with purity and like any other fact. In the instant case the incriminating evidence relating to the recovery seriously tainted, lacks credibility of the degree required by law. Appeals allowed and the Appellants were acquitted of the charge framed against them.