SUPREME COURT

• CRIMINAL LAWS

Kanwarjit Singh Kakkar Vs. State of Punjab and Anr. (Decided on 28.04.2011) MANU/SC/0528/2011

Criminal - Indulgence in private practice by Government doctors - Quashing of criminal proceedings - FIR was registered against Appellants, Medical Officers working with the State Government, for the offence punishable under Sections 13(1)(d) read with Section 13(2) of Prevention of Corruption Act and Section 168 of Indian Penal Code (IPC) - Appellants were allegedly doing private practice and were charging Rs.100 in cash per patient as prescription fee - Petition filed before High Court for quashing the FIR was dismissed - Hence, instant appeal

(a) Whether a government doctor allegedly doing private practice could be booked within the ambit and purview of the Prevention of Corruption Act or under IPC, or the same would amount to misconduct under the Rules

Held, before a public servant could be booked under the Prevention of Corruption Act, the ingredients of the offence would have to be deduced from the facts and circumstances obtained in the particular case - In the instant case, amount that was alleged to have been accepted as per the allegation of the complainant was not by way of gratification for doing any favour to the Appellants, but by way of professional fee for examining and treating the patients - Conduct of the Appellants who were alleged to have indulged in private practice while holding the office of government doctor and hence public servant at the most, could be proceeded with for departmental proceeding under the Service Rules but in so far as making out of an offence either under the Prevention of Corruption Act or under the IPC, would be difficult to sustain - Thus, if a particular professional discharged the duty of a doctor, that by itself was not an offence but become an offence by virtue of the fact that it contravened a bar imposed by a circular or instruction of the government - Said act clearly would fall within the ambit of misconduct to be dealt with under the Service Rules but would not constitute criminal offence under the Prevention of Corruption Act.

(b) Whether the indulgence in private practice would amount to indulgence in 'trade' while holding the post of a government doctor constituting an offence under Section 168 of the IPC

Held, cases of unlawful engagement in trade by public servants could be held to be made out under Section 168 of the IPC if the facts of a particular case indicate that besides professional discharge of duty by the doctor, he was indulging in trading activities of innumerable nature - In the instant case, offence under Section 168 of the IPC could not be held to have been made out against the appellants even under this Section as the treatment of patients by a doctor could not by itself be held to be engagement in a trade as the doctors' duty to treat patients is in the discharge of his professional duty which could not be held to be a 'trade' so as to make out or constitute an offence under Section 168 of the IPC - Allegation even as per the FIR in the instant case, did not constitute an offence either under the Prevention of Corruption Act or under Section 168 of the IPC - Impugned orders passed by the High Court set aside and FIR quashed - Appeals allowed.

• LAND ACQUISITION

Banda Development Authority, Banda Vs. Moti Lal Agarwal and Ors. (Decided on 26.04.2011) MANU/SC/0515/2011

Land Acquisition - Acquisition of land - Challenged thereto - Whether the Division Bench was justified in entertaining and allowing the petition filed by Respondent no. 1 for nullifying the acquisition of his land by the State Government vide notifications Dated 8.9.1998 and 7.9.1999 on the ground of non passing of award within the time prescribed under Section 11A of the Act?

Held, acquired land was utilized for implementing residential scheme inasmuch as after carrying out necessary development, the Banda Development Authority(BDA) carved out plots, constructed flats for economically weaker sections and lower income group, invited applications for allotment of the plots and flats from general as well as reserved categories and allotted the same to eligible persons - In the process, the BDA not only incurred huge expenditure but also created third party rights - In this scenario, the delay of 9 years from the date of publication of the declaration issued under Section 6(1) and almost 6 years from the date of passing of award should have been treated by the High Court as more than sufficient for denying equitable relief to Respondent no.1 - Moreover, the action of the concerned State authorities to go to the spot and prepare panchnama showing delivery of possession was sufficient for recording a finding that actual possession of the entire acquired land had been taken and handed over to the BDA - Once it was held that possession of the acquired land was handed over to the BDA on 30.6.2001, order of the High Court that the acquisition proceedings had lapsed due to non-compliance of Section 11A could not be sustained - Impugned order of the High Court set aside - Appeal allowed.

• SALES TAX

Bansal Wire Industries Ltd. and Anr. Vs. State of U.P. and Ors. (Decided On 26.04.2011) MANU/SC/0523/2011

Sales Tax - Appellant was engaged in the business of manufacture and sales of 'stainless steel wires' - Department passed an assessment order and held that the tax on sales of 'stainless steel wire' was levied @ 4% - Appellant filed writ petition contending that the 'stainless steel wire' was a declared commodity under clause (iv) of Section 14 of the Central Sales Tax Act, hence, as per Section 15 of the Act, no tax can be imposed on the declared commodities in excess of 4% - High Court dismissed said writ petition - Appellant filed appeal against said order contending that the expression 'Iron and Steel' mentioned in clause (iv) of Section 14 of the Act was a genus and 'stainless steel wire' being a form of 'Iron and Steel' was a specie thereof and therefore such 'stainless steel wire' which the Appellant produces would come within the expression of entry no. (xv) of clause (iv) of Section 14 of the Act - Whether 'stainless steel wire' would fall under the category 'tools, alloy and special steels of any of the above categories' enumerated in entry no. (ix) of clause (iv) or under entry no. (xv) of clause (iv) of Section 14 of the Central Sales Tax Act, 1956 ?

Held, the language used in entry no. (ix) of clause (iv) of Section 14 of the Act was plain and unambiguous and that the items which were mentioned there were 'tools, alloy and special steel' - By using the words 'of any of the above categories' in entry numbers (ix) of clause (iv) of Section 14 of the Act would refer to entries (i) to (viii) of clause (iv) of Section 14 of the Act and it cannot and does not refer to entry no (xv) of clause (iv) of Section 14 of the Act - Therefore, the specific entry 'tool, alloy and special steel' being not applicable to entry (xv) of clause (iv) of Section 14 of the Act and 'stainless steel wire' was not covered within entry (ix) of clause (iv) of Section 14 of the Act - Therefore, the findings and the decision arrived at by the High Court that 'stainless steel wire' was not covered under the entry of 'tools, alloys and special steels' in entry number (ix) of clause (iv) of Section 14 of the Act and, therefore, does not fall under 'Iron and Steel' as defined under Section 14(iv) of the Act have to be upheld - Impugned order of the High Court upheld - Appeals dismissed.

• CONSTITUTIONAL LAWS

Amrik Singh Lyallpuri Vs. Union of India (UOI) and Ors. (Decided on 21.04.2011) MANU/SC/0456/2011

Constitution - Constitutional validity - Executive Review - Whether an order passed by a Appellate Tribunal, constituted under the Delhi Municipal Corporation Act, 1957 and New Delhi Municipal Council Act, 1994, which has the trappings of a civil court, can be reviewed by an administrative authority i.e. Lieutenant Governor?

Held, no - Appellate Tribunals created under the aforesaid statutes were quasi judicial bodies with the trappings of the Civil Court and that they were manned by judicial officers of considerable experience - In discharging their functions, such bodies were acting as a Civil Court in respect of some of its functions, and the proceedings before such bodies were judicial proceedings - Administrator i.e. Lieutenant Governor of the National Capital Territory of Delhi was an executive authority and an executive authority cannot entertain an appeal from an order passed by the judicial authority even though such judicial authority was acting in a quasi-judicial capacity - Appeal from such an order cannot lie to any authority except a judicial authority - Hence, an order passed by a Appellate Tribunal, constituted under the Delhi Municipal Corporation Act, 1957 and New Delhi Municipal Council Act, 1994 cannot be reviewed by an administrative authority i.e. Lieutenant Governor - Appeals to the Administrator under Section 347D of the Delhi Municipal Corporation Act, 1957 and also under Section 256 of the New Delhi Municipal Council Act shall lie to the District Judge, Delhi - Appeal allowed.

• COMMERCIAL LAWS

Consumer Online Foundation, etc. Vs. Union of India (UOI) and Ors., etc. (Decided on 26.04.2011) MANU/SC/0516/2011

Commercial - Airports Authority of India Act, 1994 Act was amended by 2003 Act by inserting Section 22A in 1994 Act whereby Airport Authority of India (AAI) with approval of Central Government, was empowered to levy on, and collect from, embarking passengers at an airport, development fees at rate as may be prescribed - Amended Section 22A under 2008 Act provided for determination of rate of development fees for major airports under Section 13(1)(b) of 2008 Act by Airports Economic Regulatory Authority (Regulatory Authority) - AAI leased out Delhi Airport to Delhi International Airport Private Limited (DIAL) and Mumbai Airport to Mumbai International Airport Private Limited (MIAL) - Government of India sent letters to DIAL and MIAL conveying approval of Central Government under Section 22A of 1994 Act for levy of development fees - Whether imposition and collection of development fees by lessees of AAI were ultra vires of 1994 Act

Held, High Court erred in concluding that exercise of power to levy and collect development fees under Section 22A was not dependent on existence of rules and, therefore, that power could be exercised even if rules had not been framed prescribing rate of development fees under Section 22A of 1994 Act - Section 22A of 1994 Act before its amendment by 2008 Act specifically provided that development fees may be levied and collected at rate as may be prescribed by rules - Hence, rate of development fees could not be determined by Central Government in two letters communicated to DIAL and MIAL respectively - Under Section 22A of 1994 Act, Central Government had only power to grant its previous approval to levy and collection of development fees but had no power to fix rate at which development fees was to be levied and collected from embarking passengers - Hence, levy and collection of development fees by DIAL and MIAL at rates fixed by Central Government in two letters were ultra vires 1994 Act and two letters being ultra vires 1994 Act were not saved by Section 6 of General Clauses Act, 1897 - After amendment of Section 22A by 2008 Act rate of development fees to be levied and collected at major airports such as Delhi and Mumbai was to be determined by Regulatory Authority Under Section 13(1)(b) of 2008 Act and not by Central Government - Regulatory Authority constituted under 2008 Act had already issued a public notice permitting DIAL to continue to levy development fees per departing domestic passenger and per departing international passenger on an ad hoc basis pending final determination under Section 13 of 2008 Act - Public notice had been issued by Regulatory Authority under 2008 Act long after impugned decision of High Court upholding levy and it had not been challenged by Appellants, hence, question of examining validity of said public notice did not arise but no such public notice had been issued by Regulatory Authority under 2008 Act pertaining to levy and collection of development fees by MIAL - Hence, MIAL could not continue to levy and collect development fees at major airport at Mumbai and should not do so in future until Regulatory Authority passed an appropriate order under Section 22A of 1994 Act as amended by 2008 Act - Having held that levy and collection of development fees by DIAL and MIAL at rates fixed by Central Government in two letters were ultra vires 1994 Act and that MIAL and DIAL could not continue to levy and collect of development fees at major airport at Mumbai without an appropriate order passed by Regulatory Authority, direction issued to DIAL and MIAL to credit the development fee collected so far to AAI and would be utilized for the purposes mentioned in clauses (a), (b) or (c) of Section 22A of 1994 Act in the manner to be prescribed by the rules which may be made as early as possible - Impugned High Court judgment set aside - Appeals allowed.

HIGH COURTS

• TRUSTS AND SOCIETIES

BOMBAY HIGH COURT

Spenta Co. op. Hsg. Soc. Ltd. and Ors. Vs. Smt. Shireen Sami Gadiali and Anr. And Shri Vasantrao Madhavrao Deshmane and Ors. Vs. The Asst. Registrar, Co. operative Societies, Chandwad and Ors. (Decided on 21.04.2011) MANU/MH/0560/2011

Trusts and Societies - Cooperative Housing Society registered under the Act applied to the Deputy Registrar for grant of recovery certificate under Section 101 of the Act against Petitioner - Deputy Registrar rejected that application - Revision application under Section 154 of the Act preferred by the Society before the Divisional Joint Registrar was allowed and the order passed by the Deputy Registrar was set aside - Revision under Section 154 of the Act was filed before the State Government - State Government held that the revision against the order of the Divisional Joint Registrar before the State Government under the provisions of Section 154 of the Act was not maintainable

(a) Whether Sub-section (1) of Section 154 of Maharashtra Cooperative Societies Act, 1960 gives concurrent jurisdiction to the Registrar and the State Government to exercise power?

Held, revisional jurisdiction conferred by Section 154 of the Act on the State Government and the Registrar was in two separate compartments - State Government exercised revisional jurisdiction in relation to orders and decisions of the Registrar, Additional Registrar and Joint Registrar; whereas the Registrar had revisional jurisdiction in relation to orders or decisions passed by any other officer - Revisional jurisdiction conferred on the State Government and the Registrar was not concurrent jurisdiction

(b) Whether an order passed in revision in exercise of revisional jurisdiction by the Registrar could be challenged in revision before the State Government?

Held, order passed in exercise of the revisional jurisdiction under Section 154 of the Act could not be subjected to scrutiny in exercise of revisional jurisdiction again under the provision of Section 154 of the Act.

(c) Whether the remedy under Section 154 of the Act was available to an aggrieved party as a matter of right?

Held, after amendments in the year 1974, a remedy of revision under Section 154 of the Act was available to an aggrieved party as a matter of right - However no general rule where it would always operate as an alternate remedy to the remedy of filing a petition under Articles 226 and 227 of the Constitution of India could be laid down - That question would have to be considered and decided in each case on the facts and law peculiar to that case - Ordered accordingly.

• DECENTRALIZATION

BOMBAY HIGH COURT

Shri Viswas Pandurang Mokal, Vijay Ramchandra Katkar and Shri Sandip Shankar Parab and Ors. Vs. Group Gram Panchayat Shihu and Ors. (Decide on 21.04.2011) MANU/MH/0565/2011

Decentralization - Motion of no confidence

(a) Whether the Collector who was hearing the Reference under Sub-Section 3-B of Section 35 of the Bombay Village Panchayats Act, 1958 Act had the power to direct the Tahsildar to convene a fresh meeting of the village panchayat for the same purpose after finding that the motion of no confidence was not validly passed?

Held, power of the Collector was confined to making a declaration whether the motion was validly carried or not - If he declared that the motion was validly carried, then the Sarpanch or Up-Sarpanch concerned ceases to hold office - If he declares that such a motion was not validly carried, then the Sarpanch or Up-Sarpanch continues to hold the office - There was no power conferred by Section 35 on the Collector who heard the dispute referred to him by Sarpanch or Up-Sarpanch to issue any direction to the Tahsildar for convening a fresh special meeting on the basis of the same requisition - Power to decide whether to convene the meeting or not to convene the meeting by the provisions of Section 35 was vested only in the Tahsildar

(b) Whether the provisions of the Meeting Rules would apply to the meeting convened specifically for considering the motion of no confidence moved in accordance with sub-section 1 of Section 35 of the Act and the No Confidence Motion Rules?

Held, there was no provision in Section 35 or in the No Confidence Motion Rules as to the manner in which the Sarpanch or Up-Sarpanch could exercise his right to participate and speak at that meeting - Provisions for that purpose were to be found in the Meeting Rules - Neither Section 35 nor No Confidence Motion Rules makes provision dealing with the situation when the members present in the meeting disregard the authority of the presiding officer - Those provisions were to be found in the Meeting Rules - Therefore, if the provisions of the Meeting Rules were held to be applicable to a meeting called under Section 35, it would facilitate holding of meeting under Section 35 effectively - Further, concept of convening a special meeting of the village panchayat as a consequence of requisition received from the members was to be found in the Meeting Rules itself and therefore, all those provisions contained in the Meeting Rules in relation to convening and holding of a special meeting of the village panchayat would apply to the special meeting convened under Section 35, subject to there being any specific contrary provision in the Act or in the No Confidence Motion Rules - Therefore, provisions of the Meeting Rules generally apply to a special meeting convened under Section 35 - Ordered accordingly.

• TAXATION LAWS

DELHI HIGH COURT

Areva T and D, SA Vs. The Asst. Director of Income Tax and Ors. (Decided on 25.04.2011) MANU/DE/1498/2011

Direct Taxation - Re-opening of assessment - Challenge against escaped income - Assessing Officer issued show cause notice under Section 148 of the Income Tax Act, 1961 Act alleging that the income of the assessee had escaped assessment and there was a proposal to assess/re-assess the same - Assessee challenged said show cause notice submitting that as earlier orders had been passed under Sections 195/197 of the Act after full application of mind, the reopening was based on a 'change of opinion' - Whether contention of the assessee could be accepted and show cause notice issued by Assessing Officer regarding re-opening of assessment could be quashed?

Held, orders passed under Section 195(2) of the Act were provisional and tentative - Said orders do not bind the Income-tax Officer in regular assessment proceedings - In the instant case, the orders under Section 195(2) of the Act state that the orders were provisional in nature and that they were subject to modifications in the regular assessment proceeding - Moreover, explanation 2(a) of Section 147 of the Act states that if any opinion was expressed at the time of grant of certificate it was tentative or provisional or interim in nature and the same would not debar the Assessing Officer from initiating a proceeding under Section 147 of the Act on the ground that there had been a change of opinion - Hence, contention of the assessee could not be accepted - Writ petitions dismissed.

• SERVICE LAWS

DELHI HIGH COURT

Raman Bihari Lal Vs. Union of India (UOI) and Ors. (Decided on 28.04.2011) MANU/DE/1552/2011

Service - Misconduct, fraud, cheating - Removal from service - On Appeal - Penalty modified to one of compulsory retirement - Whether past service record could be considered with reference to a penalty to be inflicted for subsequent misconduct

Held, Petitioner being entitled to travel in 2nd Class, he was actually traveling in 1st Class and when called to pay the fine he ran away - Railway pass issued to the Petitioner authorizing him to travel in 2nd Class was produced by the two TTEs - Petitioner never informed the department of having lost the pass and never demanded a duplicate pass to be issued - Moreover Petitioner did not lead evidence with reference to daily diary entries pertaining to the alleged complaint lodged by the Petitioner at the place where the complaint pertaining to the pass being lost was ostensibly lodged - There was sufficient evidence wherefrom a presumption could be drawn that pass of the Petitioner reached the hands of the Raiding Party as per the incident laid against the Petitioner - Testimony of PW-3 and PW-4 could not be disbelieved which in any case was sufficient evidence at a domestic inquiry - Thus evidence available was sufficient to sustain a charge at a domestic inquiry - Concurring with the report of the Inquiry Officer and keeping in view the past service record of the Petitioner as per which twice earlier the Petitioner was inflicted with the penalty of removal from service, one of which was set aside by a Court and the other had attained finality - Since removal from service was not a bar to be re-employed, the Petitioner was appointed afresh as a Constable and apart there from there were 5 minor penalties inflicted upon the Petitioner - Disciplinary Authority passed order removing the Petitioner from service, which was modified to one of compulsory retirement -It is settled law that past service record can be considered with reference to a penalty to be inflicted for subsequent misconduct - Hence penalty imposed was proper - Petition dismissed.

TRIBUNALS

• INCOME TAX APPELLATE TRIBUNAL [HYDERABAD 'A' BENCH]

Bhoomatha Parboiled Rice and Oil Mills Vs. Asstt. Commissioner of Income-tax (Decided on 28.04.2011) MANU/IH/0090/2011

Direct Taxation - Estimation of Income tax - Loss of Rs.3,42,580 declared by the assessee - Whether action of assessing officer in estimating the net income of the assessee at Rs.1,00,000, as against loss declared of Rs.3,42,582 justified

Held, it was evident from the impugned orders of the lower authorities, that in spite of repeated opportunities given, assessee could not furnish the details called for to the satisfaction of the assessing officer - More importantly, the assessee could not file the cash book, which was crucial for determining the correctness of the accounts maintained by the assessee - Thus in the circumstances, the assessing officer was justified in drawing adverse inference against the assessee as to the completeness and correctness of the books of account maintained by the assessee, and resorting to estimation of assessee's income - However, as far as estimation of income of the assessee at Rs. 1 lakh, as against loss claimed of Rs.3,42,580, the estimation made by the assessing officer was on high side - It would meet the ends of justice if the net income of the assessee is estimated at Rs.50,000 - Accordingly, order of the CIT(A) set aside - Assessing officer directed to complete the assessment of the assessee on a net estimated income of Rs.50,000 as against loss declared of Rs.3,42,580 - Appeal partly allowed.

• NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

National Insurance Co. Ltd. Vs. Venketshwera Distributor Chatta Bazar rep. by its Managing Partner R. Satish Kumar and The Manager State Bank of Hyderabad (Decided on 11.04.2011) MANU/CF/0105/2011

Consumer - Repudiation of Insurance Claim - Challenged - Respondent no. 1 took insurance policy from the Appellant (Insurance Company) in respect of the stock in the shop of Respondent no. 1 - Subsequently, Respondent no. 1 shifted his business from impugned shop to new shop at another place - Due to heavy rains the new shop were filled with water and stock of the Respondent no. 1 was damaged and became useless - Respondent no. 1 filed a claim for compensation - Appellant repudiated said claim of Respondent no. 1 on the ground that there was flagrant violation of the terms of the insurance policy as Respondent no. 1 was under obligation to inform about the date of the intended change of the premises and to obtain proper endorsement on the insurance policy which could permit continuation of the liability by the Appellant - State Commission held that the repudiation of the claim by the Appellant was invalid and improper and Respondent no. 1 was entitled to the amount of insured sum alongwith due interest and costs - Whether Respondent no. 1 was entitled to the insured amount?

Held, Respondent no. 1 gave mere intimation to the Appellant regarding shifting of the impugned shop to new address - There was no valid acceptance of such offer by the Appellant - There was no opportunity for the Appellant to examine whether the business place in new shop was safe enough to continue the insurance cover - Respondent no. 1 could not have assumed acceptance of his proposal without obtaining the necessary endorsement allowing change of the premises by the Appellant - Hence, the compensation ought not to have been granted to the Respondent no. 1 when there was no valid contract subsisting between the Appellant and Respondent no. 1 - Impugned judgment unsustainable - Petition allowed.