SUPREME COURT

• PROPERTY LAWS

Akhil Bhartiya Upbhokta Congress vs State of Madhya Pradesh and others (Decided on 06.04.2011) MANU/SC/0345/2011

Property - Allotment of land to trust - Violations of procedure - Challenged

(a) Whether the decision of the State Government to allot 20 acres land to Respondent no. 5 without any advertisement and without inviting other similarly situated organisations/institutions to participate in the process of allotment was contrary to art. 14 of the Constitution and the provisions of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973?

Held, State and/or its agencies/instrumentalities cannot give largesse to any person according to the whims of the political entities and/or officers of the State - Every action/decision of the State and/or its agencies/instrumentalities to give largesse or confer benefit must be founded on a sound, transparent, discernible and well defined policy - Any allotment of land or grant of other form of largesse by the State or its agencies/instrumentalities by treating the exercise as a private venture was liable to be treated as arbitrary, discriminatory and an act of favoritism and nepotism - In the instant case, the application for reservation of land was made by 'X', in his capacity as convener of Memorial Trust - Respondents have not placed on record any document to show that on the date of application, the Memorial Trust was registered as a public trust - The exercise for reservation of 30 acres land and allotment of 20 acres was not preceded by any advertisement in the newspaper or by any other recognized mode of publicity inviting applications from organizations/institutions like the Memorial Trust or Respondent no.5 for allotment of land and everything was done by the political and non-political functionaries of the State as if they were under a legal obligation to allot land to the Memorial Trust and/or Respondent No.5 - Moreover, all its trustees were members of a particular party and the entire exercise for the reservation and allotment of land and waiver of major portion of the premium was undertaken because political functionaries of the State wanted to favour Respondent no. 5 - Therefore, allotment of impugned land in favour of Respondent no. 5 was contrary to Article 14 of the Constitution and the provisions of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973

(b) Whether notifications dated 6.6.2008 and 5.9.2008 by which the Bhopal Development Plan was modified were ultra vires the provisions of Section 23-A of the Act?

Held, in the Bhopal Development plan, the use of land which was reserved and allotted to Respondent no.5 was shown as public and semi public (health) purpose - The State Government modified the plan by invoking Section 23-A(1)(a) of the Act for the purpose of facilitating establishment of an institute by Respondent no. 5 and not for any proposed project of the Government of India or the State Government and its enterprises - The exercise undertaken for the change of land use, which resulted in modification of the development plan was an empty formality because land had been allotted to Respondent no.5 almost two years prior to the issue of notification under Section 23-A (1)(a) of the Act - Hence, modification of the development plan was ultra vires the provisions of Section 23-A(1)(a) of the Act - Impugned order of the Division bench set aside - Allotment of 20 acres land to Respondent No.5 declared illegal and quashed - Notifications dated 6.6.2008 and 5.9.2008 issued by the State Government under Section 23-A(1)(a) and (2) quashed - Appeal allowed. 

• ELECTION LAWS

P.H. Paul Manoj Pandian Vs. Mr. P. Veldurai (Decided on 13.04.2011) MANU/SC/0401/2011

Election petition - Subsisting Government Contracts - Whether election of the Respondent could be set aside on the ground that the Respondent had subsisting contracts with the Government at the time of filing of nominations papers?

Held, in terms of Government Order dated 16.11.1951, power to terminate the contract was only with the Chief Engineer - Neither the Divisional Engineer was competent to terminate the contracts awarded to the Respondent nor the Superintending Engineer was competent to ratify an order passed by the Divisional Engineer cancelling the contracts awarded to the Respondent - Therefore, the assertion made by the Respondent that his contracts were terminated by the Divisional Engineer by passing an order, which was subsequently ratified by the Superintending Engineer was of no avail - Contracts entered into between the Respondent and the Superintending Engineer were never terminated by the Chief Engineer - Hence, on the date of submission of nomination papers by the Respondent as well as on the date of scrutiny of the nomination papers, the contracts entered into by the Respondent with the Government were subsisting - Respondent had incurred disqualification under Section 9A of the Representation of People Act, 1951 and his election from the Constituency in question was declared to be illegal, null and void - Appeal allowed

• MOTOR VEHICLES

Sri Nagarajappa Vs. The Divisional Manager, The Oriental Insurance Co. Ltd. (Decided on 11.04.2011) MANU/SC/0393/2011

Motor Vehicles - Accidental claim - Permanent disability - Determination of Compensation - Tribunal awarded total compensation of Rs.1,70,200 - On appeal, the High Court enhanced compensation for pain and suffering, medical expenses, future medical expenses, loss of amenities and loss of future income as against the amount awarded by the Tribunal - High Court awarded Rs. 2,22,600 as compensation - Whether amount awarded by the High Court was inadequate considering the nature of injuries suffered by the Appellant and the consequent adverse effect it had on the performance of his avocation?

Held, Appellant was working as a manual labourer, for which he required the use of both his hands - Thus, while awarding compensation it had to be kept in mind that the Appellant was to do manual work for the rest of his life without full use of his left hand, and this was bound to affect the quality of his work and also his ability to find work considering his disability - Hence, while computing loss of future income, disability should be taken to be 68% and not 20% - Thus, loss of future income would amount to Rs.3,18,240 - Amount enhanced to Rs. 4,77,240 - Appeal allowed.

• CRIMINAL LAWS

Kuldip Yadav and Ors. Vs. State of Bihar (Decided on 11.04.2011) MANU/SC/0390/2011

Criminal - Murder - Conviction Challenged - Conviction of Appellants was upheld by High Court - Hence, instant appeal

(a) Discrepancies in prosecution witnesses - Whether conviction based on testimony of such witnesses could be upheld?

Held, evidence of injured persons about the nature of injury contradict each other - Witnesses were not able to identify the actual place of occurrence - They all had a different version about the nature of injuries and they were not consistent whether the deceased died at the spot or on the way to hospital or in the hospital - Hence, in view of their improvements with due deliberation and consultation and in the absence of credible explanation, conviction based on their testimony could not be sustained

(b) Conviction under Section 149 of Indian Penal Code, 1860 - Whether sustainable

Held, in order to attract Section 149 of IPC, it must be shown that the incriminating act was done to accomplish the common object of unlawful assembly and it must be within the knowledge of other members as one likely to be committed in prosecution of the common object - If the members of the assembly knew or were aware of the likelihood of a particular offence being committed in prosecution of the common object, they would be liable for the same under Section 149 of IPC - In the instant case, there was no material to show that all the accused shared in common object, the object itself not being proved and their participation in it was not made out by credible evidence - Hence, without a clear finding regarding common object and participation therein by each one of the accused members, there could be no conviction with the aid of Section 149 of IPC - Findings of the High Court and conclusion dismissing the appeals were perverse and resulted in failure of justice - Impugned judgment of the High Court set aside - All the accused were directed to be released - Appeals allowed.

• CONSTITUTIONAL LAWS

State of Uttaranchal Vs. Golden Forest Co. (P) Ltd. (Decided on 11.04.2011) MANU/SC/0392/2011

Constitution - Jurisdiction of Board of Revenue - 'A' purchased impugned land from various tenure holders in the name of Golden Forest India and its sister concerns (Respondents) - Assistant Collector held that purchases made in the name of the Respondents were violative of the restriction contained in Section 154(1) of Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 - Respondents challenged said order by filing revisions - Whether the Board of Revenue, Uttar Pradesh could hear and decide the revisions filed by the Respondents after creation of the State of Uttaranchal by the Uttar Pradesh Reorganisation Act, 2000?

Held, Section 91 of Reorganisation Act, 2000 states that every proceeding pending before a Court, Tribunal, Authority or Officer in any area which fell within the State of Uttar Pradesh on 09.11.2000 stood automatically transferred to the corresponding Court, Tribunal, Authority or Officer of the State of Uttaranchal - Therefore, the revisions which were pending before the Board of Revenue, Uttar Pradesh. on 9.11.2000 stood transferred to the State of Uttaranchal and, as such, the same could not have been decided by the Board of Revenue, Uttar Pradesh - Single Judge over looked the fatal flaw in the order of the Board of Revenue, Uttar Pradesh and pronounced upon the legality of the purchases made in the names of the Respondents - Impugned order passed by the Board of Revenue, Uttar Pradesh set aside and revisions filed by the Respondents stood transferred to the Board of Revenue, State of Uttaranchal - Appeals allowed.

• MINES AND MINERALS LAWS

B.R. Surendranath Singh Vs. Deputy Director, Department of Mines and Geology, Karnataka and Ors. (Decided on 11.04.2011) MANU/SC/0374/2011

Mines & Minerals - Illegal quarrying - Respondents by way of instant appeals submitted that the Appellant had illegally mined iron ore much more than the sanctioned capacity in a clandestine manner - Whether Appellant was entitled to any relief from Supreme Court?

Complaint was filed against Appellant (mining lease holder) alleging act of illegal quarrying - Respondents found that about one lakh ton of iron ore was illegally quarried and this illegal material was kept in the Appellant's land - In pursuance to the said complaint, the officials of the Department of Mines and Geology visited Mining Lease and found illegal mining and as such the same was seized and stored - Respondent no.1 issued a notification for auctioning the iron ore fines - Notification was challenged in writ petition by the Appellant - Writ petition was dismissed - High Court held that the Appellant did not have any right over the seized iron ore mines - Review Petition filed there against was also dismissed - Hence instant appeals were filed - Held, audit report indicated that the Appellant had quarried and produced iron ore several times more than its permissible limit - Supreme Court ought not to exercise its extraordinary jurisdiction under Article 136 of the Constitution in instant matter - Appeal dismissed.

HIGH COURTS

• LABOUR AND INDUSTRIAL LAWS

BOMBAY HIGH COURT

Hiru B. Barot Vs.IPCA Laboratories Limited and The Presiding Officer, Labour Court ( Decided on 13.04.2011) MANU/MH/0514/2011

Labour and Industrial - Interim relief - Charge-sheet was issued against workman alleging wilful subordination - In the inquiry workman was held guilty and was dismissed from the service - Workman challenged the said order by filing Reference before the Labour Court - Whether the order passed by the Labour Court was only an interim relief or an interim award within the meaning of Section 2(b) of the Industrial Disputes Act, 1947 and if it was an interim award - Whether the workman was entitled for wages under Section 17- B of the Act from the date of the said interim award ?

Held, for treating a decision of the Labour Court as an interim award, the decision should reflect that relevant point for determination to be answered in part or wholly was formulated and addressed in the decision so as to determine the said controversy - In the instant case, relevant facts to invest jurisdiction in the Labour Court to pass an interim award have not been discussed and deliberated upon in the impugned decision - Impugned decision could not be considered as an interim award as such - Thus impugned decision of the Labour Court, though passed in exercise of Section 10(4) of the Act, was in the nature of interim relief and could not be treated as an interim award - As a result, the application preferred by the workman under Section 17- B of the Act was unavailable - Ordered accordingly.

• CRIMINAL LAWS

HIGH COURT OF JHARKHAND AT RANCHI

Manish Kumar, Dr. Rajendra Kumar Singh and Mukesh Kumar Vs. The State of Jharkhand and Sangeeta (Decided on 07.04.2011) MANU/JH/0235/2011

Criminal proceedings - Quashing of - Petitioners have invoked the inherent jurisdiction of this Court for quashment of entire criminal proceedings and order by which Judicial Magistrate Bokaro having been satisfied with the materials collected in course of inquiry found a prima facie offence against the Petitioners under Sections 498A/323/379 of the Indian Penal Code as also under Sections 3/4 of the Dowry Prohibition Act - Whether learned Judicial Magistrate, Bokaro was within his competence to issue summons to the Petitioner Nos. 2 and 3 i.e father in law and elder brother of accused complainant Petitioner No.1 herein though, the other accused persons were exonerated.

Held, having regard to the facts and circumstances of the case, perusal of the complaint petition as well as the statement of the complainant recorded on solemn affirmation - No specific overt act was found to have been attributed against Petitioner No. 2 and 3 - No part of the offence had been alleged against these two Petitioners that they had visited Bokaro and demanded dowry or even extended torture to the complainant at Bokaro - From paragraph-13 of the complaint petition it was evident that Petitioner No. 1-husband had visited Bokaro with the complainant where he assaulted her at her parental home and returned back by extending threat that he would marry another girl if the demand made by him could not be fulfilled - Thus it was husband alone i.e. the Petitioner No. 1 against whom there was direct allegation for the alleged offence in which the cognizance was taken - Learned Judicial Magistrate was thus within his competence to issue summons to him - However in the facts and circumstances, cognizance taken and summons issued against the Petitioner No. 2 and 3 was barred by territorial jurisdiction and hence, the entire criminal proceeding in the instant case as against Petitioner 2 and 3 was quashed - Petition allowed in part.

• CRIMINAL LAWS

BOMBAY HIGH COURT

Mohammed Kasam Rajmani Shaikh Vs. The State of Maharashtra (Decided on 15.04.2011) MANU/MH/0526/2011

Criminal - Murder - Conviction - Challenged - Accused convicted for offence punishable under Section 302 Indian Penal Code, 1860 - It was alleged that accused poured kerosene on deceased and threw a burning matchstick on her person as of which she sustained burn injuries - Whether Trial Court was justified in holding the accused guilty of causing the homicidal death of deceased?

Held, Trial Court was justified in holding the accused guilty of causing the homicidal death of deceased and he was the author of the crime - However, there was no evidence on record that prior to the incident, the accused had either ill-treated or harassed the deceased - There was no premeditation or any motive attributable to the accused to cause the death of the deceased - There was no preparation with intention to cause the death of deceased - The incident had taken place at the spur of the moment and in the heat of the anger and, therefore, the offence would not come within the ambit of Section 302 of IPC - Exception 4 to Section 300 of the IPC would be attracted in the instant case and it was not a case of culpable homicide amounting to murder - Further, when accused poured kerosene and threw a burning matchstick on the person of his wife, he was aware that his acts were likely to cause the death of his wife - Hence, Accused held guilty of the offence punishable u/s. 304 (Part I) of IPC - Appeal partly allowed.

• DIRECT TAXATION LAWS

BOMBAY HIGH COURT

The Commissioner of Income-tax Vs. Shri Bharat R. Ruia (HUF) Phoenix Mills Premises (Decided on 18.04.2011) MANU/MH/0535/2011

Direct Taxation - Speculation loss - Assessee (HUF), engaged in the business of trading in shares and securities, entered into certain derivative transactions which resulted in loss - Assessee claimed said loss as business loss - Assessing Officer (AO) rejected said contention of the assessee and held that the loss incurred was speculation loss covered under Section 43(5) of the Income Tax Act, 1961

(a) Whether the transactions in exchange traded financial derivatives were 'speculative transactions' as defined in Section 43(5) of the Act, 1961?

Held, Section 43(5) of the Act provides that a transaction for purchase/sale of any commodity would be a speculative transaction if it was settled otherwise than by actual delivery - For the purposes of Section 43(5) of the Act, it was not necessary that the commodity agreed to be purchased or sold must be capable of actual delivery - In the instant case, the assessee had entered into futures contracts for purchase of shares of certain companies at a specified future date and at a specified price, which were to be settled in cash without actual delivery of the shares - Future contracts for purchase / sale of an underlying security permitted to be traded on the stock exchange and settled otherwise than by actual delivery would be speculative transactions under Section 43(5) of the Act - Hence, the exchange traded derivative transactions carried on by the assessee during Assessment Year 2003-04 were speculative transactions covered under Section 43(5) of the Act

(b) Whether clause (d) inserted to the proviso to Section 43(5) of the Act w.e.f. 1.4.2006 would apply to such transactions undertaken in the Assessment year 2003-04

Held, firstly, the legislature by Finance Act, 1995 had specifically provided that clause (d) to the proviso to Section 43(5) of the Act shall come into operation prospectively w.e.f. 1.4.2006 - Secondly, insertion of clause (d) was not necessitated on account of the fact that the provisions of Section 43(5) of the Act were unworkable - Thirdly, even after insertion of clause (d) in Section 43(5) of the Act, all transactions in derivatives were not taken outside the purview of Section 43(5) of the Act - It was only those derivative transactions which were covered under clause (d) were taken outside the purview of Section 43(5) of the Act and the rest of the transactions in derivatives would continue to be covered under Section 43(5) of the Act - Hence, contention of assessee that clause (d) inserted to the proviso to Section 43(5) of the Act had retrospective effect could not be accepted - Clause (d) inserted to the proviso to Section 43(5) of the Act w.e.f. 1.4.2006 was prospective in nature and could not apply to transactions undertaken in the Assessment Year 2003-04- Impugned order of the Tribunal set aside - Revenue's appeal allowed.

TRIBUNALS

• DEFENCE LAWS

Armed Fores Tribunal Kolkata Bench

Shishupal Roy Son of Akhil Chandra Roy Vs. Union of India (UOI) service through the Secretary, Ministry of Defence and Ors. (Decided on 12.04.2011) MANU/AF/0116/2011

Defence - Prayer for grant of medical disablement pension - Relief sought - Medical Board observed that "disablement was aggravated due to stress and strain of service and its effect still continues" Ultimately, the Medical Board opined that the applicant was suffering from 50% disablement and it recommended such disablement pension for two years to be granted in favour of the applicant - PCDA (Pension), Allahabad rejected such prayer, as according to them, the disease was neither attributable to nor aggravated by the military service and was in the nature of constitutional disorder - Whether view of Medical Board was final and as such could not be over-turned by another authority

Held, to come to a conclusion as to whether a person is entitled to disablement pension or not, the opinion of the Medical Board should be considered to be final unless there was valid reason for differing with the said opinion - Inspite of clear opinion of the Medical Board, the concerned authority i.e. PCDA (P), Allahabad rejected claim by observing that the disease of the applicant was neither attributable to nor aggravated due to military service - No reason whatsoever was given by PCDA(P), Allahabad to come to such a conclusion in order to overrule the finding of the Medical Board, which was an expert body in this respect - Nothing had been produced as to the basis of the decision of the PCDA(P), Allahabad - Thus such decision of the said authority was palpably without jurisdiction and was to be set aside - Application allowed.

• CENTRAL INFORMATION COMMISSION

Mr. Deepak Yadav Vs. Mr. N. C. Sharma PIO and Superintendent Engineer (Decided on 07.04.2011) MANU/CI/0463/2011

Right to information - Information sought regarding jobs of Nigam councilor within last year - First appeal was filed as the information provided was incomplete and wrong - On not being satisfied with the information provided in first Appeal the second Appeal was filed

Held, now all information available on the records had been provided to the Appellant satisfactorily - Appellant had sought information about the corporator's fund - Commission issued an order directing that the boards should be put up in each ward giving details of the coppertop's fund which had been spent in each ward - However it appeared that the Public Information Officer had not complied with this direction so far - Commission directed to comply with directions in event of failure of which punitive measure would be undertaken - Appeal disposed of