SUPREME COURT

• PROPERTY LAWS

State of Haryana Vs. Mukesh Kumar and Ors. (Decided on 30.09.2011) MANU/SC/1147/2011

Plea of Adverse Possession - Challenge thereto - Trial Court passed an order dismissing suit filed by Plaintiffs on ground that they did not own the property in question by way of adverse possession - Additional District Judge confirming order of Trial Court held that it does not permit the Government to take the plea of adverse possession against its own citizens -Lower Courts orders confirmed by the High Court observation that welfare State which was responsible for the protection of life and property of its citizens was in the present case itself trying to grab the land/property of the Defendants under the garb of plea of adverse possession and hence the action of the Plaintiff was deplorable and disgraceful - Hence, the present Special Leave Petition

Held, If the police department of the State with all its might was bent upon taking possession of any land or building in a clandestine manner the perhaps no one would be able to effectively prevent them. It is the bounden duty and obligation of this Court to ascertain the intention of the Parliament while interpreting the law. Law and justice, more often than not, happily coincide rarely was there any conflict. The archaic law of adverse possession was one such. A serious relook was absolutely necessary in the larger interest of the people. Adverse possession allows a trespasser to gain legal title over land which he had illegally possessed for 12 years. How 12 years of illegality could suddenly be converted to legal title is, logically and morally speaking, bafflin. This outmoded law essentially asks the judiciary to place its stamp of approval upon conduct that the ordinary citizen would find reprehensible. Further, if the protectors of law become the grabbers of the property then people will be left with no protection and there would be total anarchy in the entire country. It is indeed a very dangerous and disturbing trend. Therefore, it must be arrested without any further loss of time in the larger public interest. No Government undertaking, public undertaking and much less the police department should be permitted to perfect the title of the land or building by invoking the provisions of adverse possession and grab the property of its own citizens as had been done in the present case. There was an urgent need for a fresh look at the entire law of adverse possession. Special Leave Petition dismissed

• FAMILY LAWS

Pankaj Mahajan Vs. Dimple @Kajal (Decided on 30.09.2011) MANU/SC/1145/2011

Refusal to grant decree of Divorce - Challenge thereto - Additional District Judge passed an order granting a decree of divorce in favour of Appellant/Husband, which was reversed by High Court - Hence, this Appeal

Held, It is well settled that giving repeated threats to commit suicide amounts to cruelty. When such a thing is repeated in the form of sign or gesture, no spouse can live peacefully. Cruelty postulates a treatment of a spouse with such cruelty as to create reasonable apprehension in his mind that it would be harmful or injurious for him to live with the other party. The Court was satisfied that the Appellant had placed ample evidence on record that the Respondent was suffering from mental disorder and due to her acts and conduct, she caused grave mental cruelty to him and it was not possible for the parties to live with each other. Therefore, a decree of divorce deserved to be granted in Appellant's favour. In addition to the same, both Appellant and Respondent were living separately for the last more than nine years. Further, there was no possibility to unite the chain of marital life between the Appellant and the Respondent. Appeal allowed

• CRIMINAL LAWS

Union of India Vs. Hassan Ali Khan and Anr (Decided on 30.9.2011) MANU/SC/1144/2011

Cancellation of Bail - Present Appeal arises out of a Special Leave Petition filed against the judgment and order of High Court wherein bail was granted to Respondent No.1

Held, The Court was not prepared to accept the convoluted link attempted to be established by the Additional Solicitor General with the opening and operation of the bank accounts of Respondent No.1 in the Union Bank of Switzerland, the amounts in the said bank have not been sought to be explained by Respondent No.1. Further, Court could also not ignore the fact that total income of Respondent No.1 for assessment years 2001-02 to 2007-08 has been assessed at Rs. 110, 412,68,85,303 by the Income Tax Department and in terms of Section 24 of Prevention of Money Laundering Act, the Respondent No.1 had not been able to establish that the same were neither the proceeds of crime nor untainted property. In addition to the above is the other factor involving the notarized document in which the name of Adnan Khashoggi appears. Lastly, the manner in which Respondent No.1 had procured three different passports in his name, after his original passport was directed to be deposited, lends support to the apprehension that is released on bail, the Respondent No.1 might abscond. Therefore, order of the High Court is set aside thereby allowing the present Appeal and cancel the bail granted to Respondent No.1

HIGH COURTS

• CONSTITUTIONAL LAWS

CALCUTTA HIGH COURT

Tata Motors Ltd and Anr. Vs. State of West Bengal and Ors. (Decided on 28.09.2011) MANU/WB/0777/2011

Singur Land Rehabilitation and Development Act, 1911 and Singur Land Rehabilitation and Development Rules, 2011- Constitutionality of - Present writ application filed challenging the constitutionality of said Act and Rules

Held, The Singur Land Rehabilitation and Development Act was a constitutional and valid Act. It was not wholly an exercise of the power of the State Legislature under Entry 18 List II of Seventh Schedule to the Constitution of India but was also an exercise of the power under Entry 42 List III.

• COMMERCIAL LAWS

DELHI HIGH COURT

M/S Selex Sistemi Integrati, Spa Vs. Union of India and Ors. (Decided on 30.09.2011) MANU/DE/3886/2011

Award of Tender - Fairness of procedure - Present writ petition filed seeking fairness in procedure in award of tender under Article 14 of the Constitution along with de hors the right under Article 19(1)(g) of the Constitution to carry on the business and trade at the behest of a foreign company especially keeping in view that issue of fairness in treatment and absence of arbitrariness when involved on the basis of Article 14 in tender matter is relatable to the doctrine that the State has to be fair in distribution of State largesse to its citizens

Held, Testing on the touchstone of enunciation of law laid down in various decisions the bid really did not become non-responsive. The blanks do not really affect. It was not a mercurial bid nor was it specious and it has no riders. It was not postulated by conditions. It was clear, scrutinisable, discernible and all comprehensive. If the tender document was read as a whole, it would be clear as day that the Respondent No.3 had really not left out anything which could remotely be called substantial to make the bid non-responsive. By appreciating the tender document in entirety, it could not be said that there has been non-adherence to the norms or the Rules. In fact, there had been no deviation. Needless to say while exercising writ jurisdiction in a matter relating to award of tender, the Court would not ordinarily interfere unless it found that authorities had acted in a totally arbitrary and perverse manner, or for that matter the ultimate determination in awarding the contract is wholly unreasonable and could not be conceived by a prudent man. Further, there could not be any dispute that certain amount of play in the joints had to be given to the State authorities as they were in the best position to judge the nature of contract, capabilities and various concomitant factors. Writ petition dismissed.

• SERVICE

DELHI HIGH COURT

All India Tent Dealers Welfare Organisation Vs. Union of India and Anr. (Decided on 30.09.2011) MANU/DE/3887/2011

Erection of Pandal/Shamiana for Hindu marriage - Validity of service tax imposed thereof - Hence, the present Writ Petition

Held, It was worth noting that Legislature, by the Finance Act, 2007 has inserted an explanation to Section 65(77) (a). If the entire provision was properly understood, it was clearly discernible that Hindu Marriage was not regarded a social function per se. If the dictionary clause was properly appreciated, there could be no trace of doubt that only when a 'pandal' or 'shamiana' is used for marriage, it earns the status of social function because the service component was involved. It was worth noting that statute itself postulated that marriage was to be regarded as a social function and full effect has to be given to the same. That apart, the pre-requite is the use of "pandal or shamiana' and therefore contention raised that Hindu Marriage was not a contract but a sacred institution and hence no service tax was imposable treating it as a social function has to be repelled and this Court does the same. Writ petition dismissed

• RIGHT TO INFORMATION

Arvind Kejriwal Vs. Central Public Information and Anr. (Decided on 30.09.2011) MANU/DE/3888/2011

Third party information -Interpretation of Section 11 of Right to Information Act, 2005 thereof - Appellant contended that the word 'or' used in Section 11(1) should be read as 'and'- Hence present Appeal

Held, Section 11(1) postulates two circumstances when the procedure has to be followed. Firstly when the information relates to a third party and can be prima-facie regarded as confidential as it affects the right of privacy of the third party. The second situation is when the information is provided and given by a third party to a public authority and prima facie the third party who has provided information has treated and regarded the said information as confidential. The procedure given in Section 11(1) applies to both cases. Matter has been remitted back to CIC. The observation made in the present appeal should not be construed as binding findings on any of the said aspects. Appeals disposed of.

• COMPANY LAWS

In the matter of M/S. Reckitt Benkiser (India) Ltd (Decided on 3/10/2011) MANU/DE/3902/2011

Reduction of Share Capital - Present Petition filed under Sections 100 to 105 of Companies Act, 1956 read with Rule 46 of Companies (Court) Rules, 1959 for confirming the reduction of share capital of Petitioner/Company

Held, It is apparent that conditions precedent in Section 77A(5) of Companies Act were applicable only to the buyback of shares under Section 77A of the Act. Consequently, Section 77A(5) does not apply to a Scheme of Reduction under Section 100 of the Act as the two operate in entirely different fields. Further, as far as challenge to economic policy was concerned, it was well-settled that Courts do not interfere with an economic policy which was the domain of the executive unless the same was capricious, arbitrary, illegal or uninformed. Consequently, keeping in view the aforesaid as well as the fact that reduction of share capital was a commercial and business transaction which has been approved by 99.999% of equity shareholders of Petitioner/Company, this Court was of the opinion that there was no reason for not accepting the proposed scheme of reduction of share capital. It was accordingly allowed. Petition disposed of.

• LIMITATION LAWS

BOMBAY HIGH COURT

Gorakh Vs. The Sub Divisional Officer (Decided on 29.09.2011) MANU/MH/1195/2011

Condonation of Delay - Sufficient cause for - Award passed by Tehsildar challenged in tenancy case No. 32-0/1/80 after 27 years wherein Sub-Divisional Officer allowed the Appeal and directed the Tehsildar to further inquire and verify the 7/12 extract and all mutation entries of suit land under the provisions of Tenancy Law and further directed to decide the proceedings within a period of six months from the date of order - Revision Application filed therein before Maharashtra Revenue Tribunal who allowed the same, thereby setting aside the decision of Sub-Divisional Magistrate - Hence, present Writ Petition

Held, There is no infirmity in the view taken by the Maharashtra Revenue Tribunal. Petitioner herein had challenged the order passed by the Tehsildar in the year 1980 after 27 years before Sub-Divisional Officer. The Appeal was filed by the Petitioner in the year 2007. During the course of argument, the Petitioner was called upon to explain inordinate delay in filing the Appeal. He submitted that Petitioner was minor at the relevant time. The Petitioner was present in the Court and on enquiry from the Petitioner himself, Counsel informed this Court that Petitioner was born in the year 1979. Even if it was presumed that the Petitioner was minor till the year 1997, then at the most Appeal should have been preferred in 1997-1998. However, it was filed in the year 2007. Admittedly, no application for condonation of delay was filed before the Sub-Divisional Officer. Further, in the present Writ Petition, the Petitioner has not disclosed that certificate under Section 32 (M) of Bombay Tenancy and Lands Agricultural Act issued in favour of Respondent Nos 3 to 6. Writ Petition dismissed and the view taken by Maharashtra Revenue Tribunal is in consonance with the law laid down by the Supreme Court as well as this Court.

TRIBUNALS

• DIRECT TAXATION

ITAT MUMBAI 'G BENCH'

Watco Engineering Co. Pvt Ltd Vs. ACIT 2(3) and DCIT -2(3) Vs. Watco Engineering Co. Pvt Ltd. (Decided on 29.09.2011)

Deduction - Claim thereto - Assessing Officer passed an order that the entire land remained with the Assessee and what had actually been sold was the floor space index (FSI) and the Assessee could not claim cost of 50% of the land - He came to a conclusion that what was actually sold was FSI and had allowed as deduction to 35% of the cost of land - Thereafter, First Appellate Authority after considering various clauses in the agreement as well as supplementary agreement came to a conclusion that Assessee had agreed to transfer the rights of 50% of undivided share of land, in favour of the developer or its nominee and hence claim for deduction was justified - Hence, present Appeal by Revenue

Held, First Appellate Court was right in holding that Assessee had in considering of transferring 50% undivided share of land, received certain consideration, which was rightly offered to capital gain tax and that cost of such undivided share of land transferred had to be allowed as a deduction from sale consideration, after indexation. When no where in the agreement and documents FSI was mentioned, the Assessing Authority had wrongly held that that what was transferred was FSI. Agreements were clear in this regard. Just because Assessee by way of precaution incorporated certain clauses to safeguard its interest in case of delay, the Assessing Officer could not conclude that undivided share in land was not required to be transferred- Appeal dismissed

Disallowance - Claim thereto - Present Appeal filed by Assessee in which the sole issue was on disallowance made on account of foreign travel

Held, A person who travelled to London was an employee of the Company. Commissioner of Income Tax (CIT) confirmed disallowance by observing through an order that the Assessee could not produce any evidence as to whether the foreign trip resulted in any business transaction in this year or subsequent year or not. Such a reason was not sustainable in law. The Assessee was in the business of exports. It was mainly exporting to UAE and such other countries. Claim was that the employee travelled to London, to ascertain and explore the scope of new market and opportunities. In this Court's opinion, an expenditure incurred for such purpose was allowable expenditure. Assessee's counsel had submitted that Assessee could not obtain business from U.K in the subsequent year which was not challenged by Revenue. The expense was not alleged to be for personal purpose. On these facts and circumstances, Assessing Officer had wrongly disallowed claim of Assessee and CIT without any evidence had sustained disallowance. Appeal allowed.