SUPREME COURT

• PROPERTY LAWS

Jagpal Singh and Ors. Vs. State of Punjab & Ors. (Decided on 28.01.2011) MANU/SC/0078/2011

Unauthorised occupation - Public land - Land was recorded as a village pond - Relief

Held, the Appellants in the instant case were held to be trespassers who illegally encroached on to the Gram Panchayat land by using muscle power/money power and in collusion with the officials and even with the Gram Panchayat. Even if the Appellants have built houses on the land in question they must be ordered to remove their constructions, and possession of the land in question must be handed back to the Gram Panchayat. The Apex Court held that it cannot allow the common interest of the villagers to suffer merely because the unauthorized occupation has subsisted for many years. Appeal accordingly dismissed alongwith the direction that to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorized occupants of Gram Sabha/Gram Panchayat/Poramboke/Shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/Union Territories in India directed to do the needful, taking the help of other senior officers of the Governments.

The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession. Regularization should only be permitted in exceptional cases e.g. where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land.

• CRIMINAL LAWS

Varghese k. Joseph Vs. Custodian and Others (Decided on 31.01. 2011) MANU/SC/0079/2011

Appeal under Section 10 of the Special Courts (Trial of Offences Relating to Transactions in Securities) Act, 1992 - Whether the Special Court was right in rejecting the application of the appellant-investor seeking certification of the tainted shares on the ground of delay due to violation of cut off date in spite of absence of a statutory provision to that effect

Held, Special Courts Act, 1992 was enacted for speedy trial of offences relating to transactions in securities and disposal of properties attached. Further, cut off date sought by the custodian and accepted by the Special Court cannot be construed so as to have a binding effect of statutory nature under the provisions of the Act, 1956, wherein there is no fixed time limit for encashment of shares nor there is prescribed procedure for certification which emerged only on account of extraordinary situation when certain shares were found to be tainted. Therefore, Special Court had the duty to ensure that in absence of a statutory time limit prescribed for certification of shares under the Act of 1956, read with the Special Courts Act of 1992, the Special Court was duty bound to guard the interest of the investors through the Custodian at least in case of those investors who had bonafide purchased the shares of a notified company which for reasons beyond the control of investors, was held to be tainted. Hence, appellant under the facts and existing circumstances of the case could not have been denied his due on the ground of delay in filing the application for certification. Hence setting aside the impugned order of the Special Court Appeal was allowed.

Harshendra Kumar D. Vs. Rebatilata Koley Etc. (Decided on 08.02.2011) MANU/SC/0100/2011

Quashing of proceedings in complaint cases under Section 138 read with Section 141 of Negotiable Instruments Act, 1881 - Jurisdiction of High Courts while exercising powers under Sections 482 or 397 of the Code of Criminal Procedure, 1973 - Determination of liability of Director who had already resigned where offence allegedly committed by Company

Held, while exercising inherent jurisdiction under Section 482 or revisional jurisdiction under Section 397 of the Code in a case where complaint is sought to be quashed, it is not proper for the High Court to consider the defence of the accused or embark upon an enquiry in respect of merits of the accusations. However, in an appropriate case, if on the face of the documents - which are beyond suspicion or doubt - placed by accused, the accusations against him cannot stand, it would be travesty of justice if accused is relegated to trial and he is asked to prove his defence before the trial court. In such a matter, for promotion of justice or to prevent injustice or abuse of process, the High Court may look into the materials, which have significant bearing on the matter at prima facie stage.

In the instead matter, the High Court fell into grave error in not taking into consideration the uncontroverted documents relating to Appellant's resignation from the post of Director of the Company. Had these documents been considered by the High Court, it would have been apparent that the Appellant has resigned much before the cheques were issued by the Company. The dishonoured cheques were issued by the Company much after the Appellant had resigned from the post of Director of the Company. It was not even the case of the complainants that the dishonoured cheques were issued by the Appellant. These facts leave no manner of doubt that on the date the offence was committed by the Company, the Appellant was not the Director; he had nothing to do with the affairs of the Company. In this view of the matter, if the criminal complaints are allowed to proceed against the Appellant, it would result in gross injustice to the Appellant and tantamount to an abuse of process of the court. Appeals accordingly were allowed and the summons issued directed to be set aside.

Bachni Devi and Anr. Vs. State of Haryana through Secretary, Home Department (Decided on 08.02.2011) MANU/SC/0101/2011

Dowry death - Conviction for the offence punishable under Section 304B of the Indian Penal Code, 1860 (IPC) - Meaning of dowry under Dowry Prohibition Act, 1961 and for the purposes of Section 304B of the IPC

Held, for making out an offence of 'dowry death' under Section 304B, the following ingredients have to be proved by the prosecution viz. (a) death of a woman must have been caused by any burns or bodily injury or her death must have occurred otherwise than under normal circumstances; (b) such death must have occurred within seven years of her marriage; (c) soon before her death, she must have been subjected to cruelty or harassment by her husband or any relative of her husband; and (d) such cruelty or harassment must be in connection with the demand for dowry.

For the purposes of Section 304B IPC, 'dowry' has the same meaning as in Section 2 of the Dowry Prohibition Act. The definition of the expression 'dowry' contained in Section 2 of the Act cannot be confined merely to the 'demand' of money, property or valuable security "made at or after the performance of marriage". The legislature has in its wisdom while providing for the definition of 'dowry' emphasised that any money, property or valuable security given, as a consideration for marriage, "before, at or after" the marriage would be covered by the expression 'dowry' and this definition as contained in Section 2 has to be read wherever the expression 'dowry' occurs in the Act. Meaning of the expression 'dowry' as commonly used and understood is different than the peculiar definition thereof under the Act. Under Section 4 of the Act, mere demand of 'dowry' is sufficient to bring home the offence to an accused.

Thus, any 'demand' of money, property or valuable security made from the bride or her parents or other relatives by the bridegroom or his parents or other relatives or vice versa would fall within the mischief of 'dowry' under the Act where such demand is not properly referable to any legally recognised claim and is relatable only to the consideration of marriage. Marriage in this context would include a proposed marriage also more particularly where the nonfulfilment of the "demand of dowry" leads to the ugly consequence of the marriage not taking place at all.

In the instant case, the death of victim/ deceased occurred within seven years of her marriage. She was subjected to harassment and ill-treatment after demand for purchase of motorcycle, was refused, the fact duly established in evidence.

Thus, the contention that the demand of motorcycle does not qualify as a 'demand for dowry' cannot be accepted. All the essential ingredients to bring home the guilt under Section 304B IPC were established against the Appellants by the prosecution evidence. As a matter of law, the presumption under Section 113B of the Evidence Act, 1872 were also fully attracted in the facts and circumstances of the present case and the Appellants also failed to rebut the presumption under Section 113B.

Sou. Sandhya Manoj Wankhade vs. Manoj Bhimrao Wankhade and Ors, (Decided on 31.01.2011) MANU/SC/0081/2011

Domestic violence - Whether a female member of the husband's family could be made a party to the proceedings under the Domestic Violence Act, 2005.

Held, although Section 2(q) defines a Respondent to mean any adult male person, who is or has been in a domestic relationship with the aggrieved person, the proviso widens the scope of the said definition by including a relative of the husband or male partner within the scope of a complaint, which may be filed by an aggrieved wife or a female living in a relationship in the nature of a marriage. No restrictive meaning has been given to the expression "relative", nor has the said expression been specifically defined in the Domestic Violence Act, 2005, to make it specific to males only.

It is clear that the legislature never intended to exclude female relatives of the husband or male partner from the ambit of a complaint that can be made under the provisions of the Domestic Violence Act, 2005. Both the Sessions Judge and the High Court went wrong in holding otherwise, possibly being influenced by the definition of the expression "Respondent" in the main body of Section 2(q) of the aforesaid Act. Appeal accordingly allowed.

• CONSTITUTIONAL LAWS

Joydeep Mukherjee Vs. State of West Bengal and Others (Decided on 03.02.2011) MANU/SC/0089/2011

Jurisdiction of the Apex Court in Public Interest Litigation - Whether can be pressed into service where the matters have already been completely and effectively adjudicated upon in previous proceedings

Held, it was held that the jurisdiction of this Court, in a Public Interest Litigation, cannot be pressed into service where the matters have already been completely and effectively adjudicated upon not only in the individual petitions but even in the writ petitions raising larger question.

Even otherwise, in the instant matter, the affidavit on behalf of the State of West Bengal revealed certain pertinent facts for proper adjudication of the case. The affidavit stated that guidelines for allotment of both individual and co-operative residential plots were issued by a Government order on the strength of the Cabinet decision and many plots have already been allotted with very few remaining in the discretionary quota. The State Government has taken a conscious decision not to make further allotments under the discretionary quota even qua those plots. As far as already allotted plots are concerned, the rights of the parties appear to have been settled and attained finality, as in none of the writ petitions/appeals referred above any of these allotments was set aside by the Courts of competent jurisdiction. The Petitioners in those cases, in fact, did not even care to take further proceedings to have the matters adjudicated before the higher Courts and in accordance with law. In these circumstances it would be a futile exercise of jurisdiction of this Court to reopen the whole controversy once again. The questions raised in the present petition have become merely academic as the rights of the parties have been finally settled and further the parties have acted thereupon to their respective prejudices. Petition accordingly dismissed.

• SERVICE LAWS

Smt. Mona Panwar Vs. The Hon'ble High Court of Judicature at Allahabad through its Registrar and ors (Decided on 02.02.2011) MANU/SC/0087/2011

Appeal by subordinate judge seeking expunging of remarks made by the learned Single Judge of the Allahabad High Court - Remarks were passed in the relevant criminal proceedings challenging orders passed while disposing application initiated under Section 156(3) of the Code of Criminal Procedure, 1973

Held, the Higher Courts should observe restraint and disparaging remarks normally should not be made against the learned members of the lower judiciary. The law laid down by this Court in the matter of expunction of remarks where a subordinate Judge has been subjected to disparaging and undeserved remarks by the superior Court, is well settled in the matter of `K' a Judicial Officer v. Registrar General, High Court of Andhra Pradesh. In the said decision it was succinctly outlined by the Apex Court as guidelines as under :

...The existence of power in higher echelons of judiciary to make observations even extending to criticism incorporated in judicial orders cannot be denied. However, the High Courts have to remember that criticisms and observations touching a subordinate judicial officer incorporated in judicial pronouncements have their own mischievous infirmities. Firstly, the judicial officer is condemned unheard which is violative of principles of natural justice. A member of subordinate judiciary himself dispensing justice should not be denied this minimal natural justice so as to shield against being condemned unheard. Secondly, the harm caused by such criticism or observation may be incapable of being undone. Such criticism of the judicial officer contained in a judgment, reportable or not, is a pronouncement in the open and therefore becomes public. Thirdly, human nature being what it is such criticism of a judicial officer contained in the judgment of a higher court gives the litigating party a sense of victory not only over his opponent but also over the Judge who had decided the case against him. This is subversive of judicial authority of the deciding Judge. Fourthly, seeking expunging of the observations by a judicial officer by filing an appeal or petition of his own reduces him to the status of a litigant arrayed as a party before the High Court or Supreme Court- a situation not very happy from the point of view of the functioning of the judicial system. And last but not the least, the possibility of a single or casual aberration of an otherwise honest, upright and righteous Judge being caught unawares in the net of adverse observations cannot be ruled out. Such an incident would have a seriously demoralizing effect not only on him but also on his colleagues. If all this is avoidable why should it not be avoided?

However, the parameters outlined hereinbefore must not be understood as meaning that any conduct of a subordinate judicial office unbecoming of him and demanding a rebuff should be simply overlooked. The Supreme Court has outlined an alternate safer and advisable course of action in such a situation, that is of separately drawing up proceedings, inviting the attention of the Hon'ble Chief Justice to the facts describing the conduct of the subordinate Judge concerned by sending a confidential letter or note to the Chief Justice. The actions so taken would all be on the administrative side with the subordinate Judge concerned having an opportunity of clarifying his position and he would be provided the safeguard of not being condemned unheard, and if the decision be adverse to him, it being on the administrative side, he would have some remedy available to him under the law.

The emphasis was laid on the need to adopt utmost judicial restraint against making the disparaging remarks so far as members of lower judiciary are concerned.

Accordingly, the disparaging remarks referred to in the present case, made by the learned Single Judge of the Allahabad High Court, were not justified at all and, therefore, the appeal was accepted. The remarks were directed to be set aside.

• INDIRECT TAXATION

Customs

RBF Rig Corporation, Mumbai Vs. The Commissioner of Customs (Imports), Mumbai (Decided on 08.02.2011) MANU/SC/0099/2011

Refund - Whether the adjudicating authority was justified in rejecting the Appellant's claim for refund of the duty paid under the Customs Act, 1962 without considering Essentiality Certificates, produced on a later date, particularly, in view of the specific and positive directions issued by the Delhi High Court.

Held, the refund claim of Appellant was erroneously rejected by the Deputy Commissioner of Customs vide its relevant order ignoring the specific directions issued by the Delhi High Court, to the customs authorities to dispose of the Appellant's claim of refund by taking into consideration the Essentiality Certificates issued by the DGH. The Deputy Commissioner of Customs had rejected the refund claim of Appellant on the ground of unjust enrichment and failure to challenge the assessment of the Bills of Entry at the appellate stage, without even considering the Essentiality Certificates in the light of specific and binding directions of the High Court.

Accordingly, the appeal was allowed with direction to Customs authorities to consider the Appellant's claim of refund of customs duty paid under protest in accordance with the directions issued by Delhi High Court as expeditiously as possible.

HIGH COURT

• SERVICE LAWS

Allahabad High Court

Madhulika Pathak Vs. State of Uttar Pradesh and Others (Decided on 29.01.2011)

Compassionate appointment- Petition against appointment of petitioner on compassionate grounds on a Class-III instead of appointment on the post of Officer on Special Duty by State Government

Held, the rule of compassionate appointment has an object to give relief against destitution. It should not be treated as rule to give alternate employment or an employment commensurate with the post held by the deceased government servant. It is not by way of giving similarly placed life to the dependents of the deceased by creating a supernumerary or ex-cadre post .The appointment of a widow of the Deputy Superintendent of Police on the post equivalent to the post held by her husband, on the ground that her husband died in performance of his duties and that her qualifications justifies such appointment, would be a negation of the object and purpose of compassionate appointment. The terminal benefits of her husband received by the petitioner, and the family pension does not place her in such a financial distress, that the Court may consider to grant her an appointment equal to the post and status as that of her husband. Hence, petitioner has been rightly offered appointment on Class- III post. Writ petition dismissed with liberty to the petitioner to join on the Class-III post offered to her.

• DIRECT TAXATION

Allahabad High Court

M/s MD Overseas Limited Vs. Director General of Income-tax and Others (Decided on 04.02.2011)

Search and Seizure - If a search under section 132 of the Income Tax Act, 1961 (the IT Act) is challenged on the ground that information leading to reasons to believe for authorising search was irrelevant then should the court, Look into the records and decide it alone; or Disclose the information to the aggrieved person and then adjudicate upon it, after hearing the parties.

Held, In case the petitioner makes out a prima facie case against the validity of the search then (subject to privilege under section 123 or 124 of the Evidence Act), the Petitioner is entitled to know the information in possession of the Department or the reasons to believe for authorising the search except the source of the information. In the present case the Petitioner has made out a prima facie case. The Department may produce the record after showing it to the counsel for the Petitioner or file a supplementary counter affidavit indicating therein the information or material and reasons to believe for authorising the search. In case record is shown to the Petitioner or a supplementary counter affidavit is filed then, it will be open to the Department not to show or state that part of information that might indicate source of the information. 

• INDIRECT TAXATION

Bombay High Court

Commissioner of Central Excise, Mumbai Vs. GTC Industries Limited (Decided on 02.02.2011) MANU/MH/0089/2011

Excise -Whether Tribunal was right in holding that the process of embossing on aluminium paper back foil and cutting it to shape for the purpose of packing of the cigarettes did not amount to manufacture.

Held, cutting and embossing did not transform aluminium foil into a distinct and identifiable commodity. That did not change the nature and substance of the aluminium foil. It did not render any marketable value to that piece of paper. Hence, the view taken by the Asst. Commissioner as also the Tribunal that embossing on foil and cutting to shape and size during the process of packing of cigarettes cannot be faulted. Further, aluminium foil was cut to size in a continuous process and it did emerge as a new commodity and hence it was not excisable. Revenue's appeal dismissed.

• ELECTRICITY LAWS

Bombay High Court

Multi Commodity Exchange of India Limited a Company Incorporated under the Companies Act, 1956 having its registered office at Exchange Square Vs. Central Electricity Regulatory Commission and ors. (Decided on 07.02.2011) MANU/MH/0099/2011

Power and energy -controversy over the exclusive right claimed by Forward Market Commission (FMC)in matters of forward contract, and CERC's right in dealing with trading activities- the orders passed by the CERC and the Central Electricity Regulatory Commission (Power Market) Regulations, 2010 notified by CERC under Section 66 read with Section 178 (2) (y) of the Electricity Act, 2003, purporting to exercise jurisdiction over forward contracts and futures in electricity, challenged

Held, the domain and jurisdiction of respective authorities/commission is totally different and distinct in every aspect. It is difficult to go beyond for both these authorities to cross and/or interfere with the powers, functions and duties as provided under their parents statute, unless relevant provisions including Section 18 and 27 of the FCR Act (Forward Contracts (Regulation) Act) and also of Electricity Act are invoked. The Electricity Act deals with in every respect including trading in electricity. The electricity is non-storable goods, except produced by hydro projects. The trading of electricity falls within the concept of commodity trading. Therefore, it may or may not physically available all the time, unless generated on the day and/or the date of delivery. This distinguishes electricity as goods from other commodities as contemplated under the FCR Act, which at present deals exclusively with all aspect of futures/ forward contracts. It will not be possible either for FMC (Forward Market Commission) or MCX (Multi Commodity Exchange of India) to control and regulate the mandatory requirements of electricity, at various stages, which are well within the exclusive domain and control of the CERC and/or authorities/ commissions. Both authorities/ commissions cannot deal in futures/forward contract in electricity excluding other and/or independently. An actual and physical workable solution is desired to permit and/or to allow either authorities/ commissions/ exchanges to deal with the electricity in the futures/ forward market. Thus regulations of CERC as notified on 20 January, 2010, which deals with the aspects of futures contracts or forward contracts, therefore, were inoperative to that extent only. The impugned orders upholding the regulations held unsustainable to the extent of reasoning and direction relating to forward contracts in electricity.

• INTELLECTUAL PROPERTY LAWS

Delhi High Court

Tata Sons Limited Vs. Green Peace International and Anr. (Decided on 28.01.2011) MANU/DE/0220/2011

Intellectual Property Right - Plaintiff claims a decree for permanent injunction, and a decree for damages to the extent of `10 crores, against the Defendants who have made an online game by the title "Turtle v. TATA". It is stated that a mere look at the Defendant's game's screenshot reveals how they have unauthorizedly used the Plaintiff's trade mark, "TATA" as well as the "T" within a circle device without the permission of the Plaintiff thereby infringing its trade mark rights.

Held, use of a trademark, as the object of a critical comment, or even attack, does not necessarily result in infringement. Sometimes the same mark may be used, as in Esso; sometimes it may be a parody (like in Laugh it Off and Louis Vuitton). If the user's intention is to focus on some activity of the trademark owners, and is "denominative", drawing attention of the reader or viewer to the activity, such use can prima facie constitute "due cause" under Section 29(4), which would disentitle the Plaintiff to a temporary injunction, as in this case. The use of TATA, and the `T' device or logo, is clearly denominative. Similarly, describing the Tatas as having demonic attributes is hyperbolic and parodic. Through the medium of the game, the Defendants seek to convey their concern and criticism of the project and its perceived impact on the turtles habitat. The Court cannot anoint itself as a literary critic, to judge the efficacy of use of such medium, nor can it don the robes of a censor. It merely patrols the boundaries of free speech, and in exceptional cases, issues injunctions by applying Bonnard principle. So far as the argument by the Plaintiff that it is being "targeted" is concerned the Court notes that the Defendants submit that the major gains through the port accrue to the Tatas.

Therefore, the Court is of opinion that granting an injunction would freeze the entire public debate on the effect of the port project on the Olive Ridley turtles' habitat. Thus the application for interim injunction is dismissed.

Bhole Baba Milk Food Industries Ltd. Vs. Parul Food Specialities (P) Ltd. (Decided on 19.01.2011) MANU/DE/0150/2011

Trade Mark- The Plaintiff claims exclusivity over the word mark and label mark KRISHNA; which includes the attendant pictorial depiction not for any altruistic purpose but for pure commercial gains Defendant's stand appears to be that the name KRISHNA is commonly used in the milk products industries; and thus it was included in its trade name with a specific intent to carve out a distinct identity by prefixing it with the word "Parul's" and "Lord".

Held, where a registered mark appears with a prefix and, the registered mark over which rights are claimed is either a descriptive mark or is, as in the instant case, a common name, the same test ought to apply. Notwithstanding the registration of marks the courts are entitled to, prima facie examine the validity of such registrations, in the light of the provisions of Section 9, 30 and 35 of the Trade Marks Act. Hence, defendant permitted to use label mark which was filed with this Court bearing in mind that the prefix "Parul's" and "Lord" shall have a font size and prominence similar to the word KRISHNA.

• LABOUR LAWS

Bombay High Court

M/s. Mumbai Cricket Association Vs. Pramod G. Shinde (Decided on 24.01.2011) MANU/MH/0050/2011

Whether two distinct category of employees i.e. one suspended pending departmental enquiry and other facing a de-novo inquiry in Court in a reference challenging his dismissal, can be equated, so as to permit the latter to claim subsistence allowance till conclusion of the reference u/s 10 of the Industrial Disputes Act, 1947

Held, it is clear that the Labour Court has ample powers, if it finds that the employee is dragged into endless or futile litigation. If the employer is unable to prove the charges of misconduct even if of serious nature, by adducing additional evidence before the Court, then, in conclusive and final order the Labour Court while granting appropriate relief to the workman it may also direct payment of backwages and take care of the victimization of the employee by the employer as held by the Hon'ble Supreme Court. While exercising jurisdiction under Article 226 of the Constitution of India this Court cannot issue any direction contrary to law or pass any orders for which there is no basis or foundation in law. Ultimately, equity and justice require that legal principles be adhered to and not given a go-by completely. Writ petition succeeds. The order of the Labour Court is set aside. The application of the respondent praying for subsistence allowance or financial assistance from the petitioner dismissed.

• CONSUMER PROTECTION LAWS

National Consumer Disputes Redressal Commission

S.S. Ahmed Vs. Mumbai Metropolitan Region Development Authority (MMRDA) (Decided on 07.02.2011)

Deficiency in service - Complainant had booked a tenement relying on the public advertisement that the lease would be for 80 years but the Authority later unilaterally changed lease period to 30 years-Refund along with interest @ 21% claimed which was allowed by District forum but the order reversed by State commission- -Whether State Commission rightly allowed appeal filed by the Authority?

Held, grievance regarding reduction in the lease of tenement was not valid since as per latest order of the Govt. of Maharashtra, the period of lease had already been extended from 30 to 80 years However, complainant was entitled to the payment of interest for the delay as Authority was to deliver the possession of the premises in question within 6 months of the payment of the fourth and final installment. Said delay was caused on account of delay in issuance of occupancy certificate by the BMC in spite of completion of the construction of the tenement and hence the Authority was not in a position to deliver the possession to the complainant. Hence, Revision petition dismissed.