SUPREME COURT

• CUSTOMS

Union of India (UOI) and Ors. Vs. Exim Rajathi India Pvt. Ltd. (Decided on 26.11.2008)

Respondents imported 56 metric tons of garlic from China which was found to be infected with Embellisia alli (fungus) and traces of Urocystis Capulae - Appellants withheld the permit for import of consignment until further orders - Whether there was strong risk of fungus (at present totality absent in India) would affect the future cultivation in India

Before the garlic was loaded in China for import into India by the respondents, it was treated with methyl bromide fumigation. But this is a treatment for killing insects and pests and not for killing fungi. Fungi can be killed by fungicides and if earlier treated with fungicides it becomes harmful for human consumption. The methyl bromide fumigation treatment is not found to be effective against fungi as found on testing by IARI, New Delhi. Methyl bromide treatment is generally not recommended for perishable goods/commodities like garlic as it has phyto-toxic effects and may deteriorate the quality by absorption of bromide gas in the commodity. Methyl bromide fumigation treatment is given for propagative material and not for consumption. Thus, such treated garlic is dangerous for human consumption and also for Indian Agriculture.

In view of the peculiar circumstances of the case, we direct that the articles shall be taken from the Customs Warehouse to a place where destruction is to be made. The date, time and place shall be indicated by the respondents to the appellants. The articles shall be destroyed by fire in the presence of an authorized officer of appellant. The cost of the transportation from the Customs Warehouse to the place of destruction shall be borne by respondents. The appeal is accordingly disposed of.

• CONSTITUTION

Union of India (UOI) and Ors. Vs. Atam Parkash and Anr. (Decided on 25.11.2008)

Detention Order - Protection against arrest and detention in certain cases - Whether once the detention order had become infructuous by lapse of time, a different yardstick should be applied or not

In Union of India and Ors. v. Parasmal Rampuria MANU/SC/0215/1998, Supreme Court throws considerable light as to what would be the proper course for a person to adopt when he seeks to challenge an order of detention on the available grounds like delayed execution of detention order, delay in consideration of the representation and the like. These questions are really hypothetical in nature when the order of detention has not been executed at all and the detenu has avoided service and incarceration and when challenge is sought to be made at pre-execution stage. It was observed that, when the writ petition was filed, the respondent had not surrendered. Under these circumstances, the proper order which was required to be passed was to call upon the respondent first to surrender pursuant to the detention order and then to have all his grievances examined on merits after he had an opportunity to study the grounds of detention and to make his representation against the said grounds as required by Article 22(5) of the Constitution.

In Sunil Fulchand Shah v. Union of India and Ors. MANU/SC/0109/2000, a Constitution Bench of Supreme Court observed that a person may try to abscond and thereafter take a stand that period for which detention was directed is over and, therefore, order of detention is infructuous. It was clearly held that the same plea even if raised deserved to be rejected as without substance. It should all the more be so when the detenu stalled the service of the order and/or detention in custody by obtaining orders of Court.

The appeal is allowed.

• CRIMINAL

Baliram S/o Irrappa Kamble Vs.State of Maharashtra (Decided on 20.11.2008)

Criminal misconduct by a public servant - Public servant taking gratification other than legal remuneration in respect of an official Act - Whether every acceptance of illegal gratification preceded by a demand or not, would be covered by Section 7 of Prevention of Corruption Act, 1988

The question regarding no demand is concerned, in State Represented by Inspector of Police, Pudukottai, T.N. v. A. Parthiban MANU/SC/8540/2006, Supreme Court observed that, every acceptance of illegal gratification whether preceded by a demand or not, would be covered by Section 7 of Prevention of Corruption Act, 1988. But if the acceptance of an illegal gratification is in pursuance of a demand by the public servant, then it would also fall under Section 13(1)(d) of Prevention of Corruption Act, 1988. The act alleged against the respondent, of demanding and receiving illegal gratification constitutes an offence both under Section 7 and under Section 13(1)(d) of the Act. The offence being a single transaction, but falling under two different Sections, the offender cannot be liable for double penalty. But the High Court committed an error in holding that a single act of receiving an illegal gratification, where there was demand and acceptance, cannot be an offence both under Section 7 and under Section 13(1)(d) of the Act. As the offence is one which falls under two different sections providing different punishments, the offender should not be punished with a more severe punishment than the court could award to the person for any one of the two offences. In this case, minimum punishment under Section 7 is six months and the minimum punishment under Section 13(1)(d) is one year. If an offence falls under both Sections 7 and 13(1)(d) and the court wants to award only the minimum punishment, then the punishment would be one year.

Above being the position, there is no merit in this appeal which is dismissed accordingly.

Mangal Singh and Anr.Vs.Kishan Singh and Ors. (Decided on 21.11.2008)

Attempt to murder - Voluntarily causing grievous hurt by dangerous weapons or means - Whether the High Court was justified in altering the conviction of the respondents from Section 307 to Section 326 of the Indian Penal code, 1860 and reducing their sentence to fines only

High Court has erred in balancing the relevant factors. The High Court seems to have waived off the custodial sentence and let off the respondents with a modest fine mainly on two considerations. One, that the offence was committed in the year 1996 and it would serve no useful purpose to send the respondents to jail after ten years of the occurrence. And two, the respondents being convicted of the offence of causing grievous hurt in place attempted murder. We are unable to agree with the High Court on both the counts. Any inordinate delay in conclusion of a criminal trial undoubtedly has highly deleterious effect on the society generally and particularly on the two sides to the case. But it will be a grave mistake to assume that delay in trial does not cause acute suffering and anguish to the victim of the offence. In many cases the victim may suffer even more than the accused. There is, therefore no reason to give all the benefits on account of the delay in trial to the accused and to completely deny all justice to the victim of the offence. In this case there is nothing to indicate that the appellants or the prosecution were responsible for the delay in trial. We are, therefore, of the view that the High Court was not right in substituting the custodial sentence of the respondents to only fines of Rs. 3500.

Coming to the second reason weighing with the High Court, it is a mistake to think that as a rule all offences falling under Section 326 would be less serious than the offences falling under Section 307 of the Penal Code and would consequently attract lighter sentence. An offence under Section 326 may be actually more serious than another falling under Section 307 of the Code. For instance, acid thrown on the face of a young, unmarried girl would come under Section 326 but it would be far more serious than a firearm shot missing the victim that would fall under Section 307 of the Code.

High Court was not right in letting them off on completing sentence of imprisonment of merely four months and three months respectively. We accordingly restore the sentence of rigorous imprisonment given to the respondents and direct that they must serve rigorous imprisonment for two years in addition to the fine of Rs. 3,500 imposed by High Court; in case of default in payment of fine the respondents would suffer simple imprisonment for six months. On realisation of the amounts of fine Rs. 6000 would be paid to appellant No. 2. The appeal is partly allowed as indicated above.

Vithal Pundalik Zendge Vs. State of Maharashtra (Decided on 19.11.2008)

Number of witnesses - Whether there was legal impediment in convicting a person on the corroboration of the sole testimony of a single witness

The provisions of the Indian Evidence Act, 1872 following propositions may be safely stated as firmly established, (1) as a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character. (2) unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous character. (3) whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes.

In Vadivelu Thevar v. The State of Madras MANU/SC/0039/1957 Supreme Court held that, the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Vadivelu Thevar case (supra) was referred to with approval in Jagdish Prasad v. State of M.P. MANU/SC/0282/1994, Supreme Court held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Indian Evidence Act, 1872. But, if there are doubts about the testimony the courts will insist on corroboration. It is for the court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act.

Appeal which is accordingly dismissed.

Moorthy Vs. State of Tamil Nadu (Decided on 19.11.2008)

Punishment for culpable homicide not amounting to murder - Power to examine the accused -Respondent-State of Tamil Nadu filed an appeal against the judgment of Trial Court acquitted the accused before the High Court on which High Court re-examined and re-evaluated the entire evidence on record and came to a definite conclusion that acquittal of the appellant is unsustainable and because according to the Trial Court the material available on record established the guilt of the appellant particularly when the appellant in a statement under section 313 of Criminal Procedure Code, 1973 - Whether the appellant had exceeded his right of private defence

The statement of the appellant under section 313 cannot altogether be ignored. The High Court on the basis of the evidence on record reached at the definite conclusion that the medical evidence clearly establishes that it is the second accused who caused number of injuries on the deceased which proved fatal. According to the High Court, the appellant had exceeded his right of private defence, therefore the appellant is liable to be convicted for an offence under section 304 Part I IPC for exceeding the right of private defence. The High Court in this case while setting aside the Trial Court judgment convicted the appellant under section 304 Part I IPC and sentenced him to seven years of rigorous imprisonment. Even if we accept the version of the High Court that the accused had the right of private defence, in the facts and circumstances of the case, but he had exceeded his right so he was convicted under section 304 Part I IPC. On examination of the injuries on the accused it is clearly borne out that those injuries are very minor and superficial in nature whereas twenty incised injuries inflicted on the deceased were of very serious nature and character. The Sessions Court has gravely erred in acquitting the accused on the face of the testimony of the witnesses in the case. The High Court in the impugned judgment while reversing the judgment of the Sessions Court convicted the accused under section 304 Part I IPC. The appellant must be convicted at least under section 304 Part I IPC. The appeal being devoid of any merit is accordingly dismissed.

• SERVICE

State of Karnataka and Ors.Vs. K. Govindappa and Anr. (Decided on 20.11.2008)

College in question were six posts of Lecturers in history - Whether the post of Lecturer in History can be considered as a single post - Whether the High Court was right in treating the post of Lecturer in History in the respondent No. 2 college as a single isolated post forming a separate cadre in itself and not part of the cadre of Lecturers comprising all the different disciplines taught in the college

There can be no difference of opinion that the expressions "cadre", "post" and "service" cannot be equated with each other, at the same time the submission that single and isolated posts in respect of different disciplines cannot exist as a separate cadre cannot be accepted. In order to apply the rule of reservation within a cadre, there has to be plurality of posts. Since there is no scope of inter-changeability of posts in the different disciplines, each single post in a particular discipline has to be treated as a single post for the purpose of reservation within the meaning of Article 16(4) of the Constitution. In the absence of duality of posts, if the rule of reservation is to be applied, it will offend the constitutional bar against 100 per cent reservation as envisaged in Article 16(1) of the Constitution.

The present case falls within the category of single isolated posts within a cadre in respect whereof the rule of reservation is inapplicable and the said principle has been correctly applied by the High Court in the facts of this case. As indicated by the High Court, each discipline which consisted of a single post will have to be dealt with as a separate cadre for the said discipline and in view of the settled law that there can be no reservation in respect of a single post, the appointment of the respondent No. 1 cannot be faulted. This is particularly so having regard to the fact that the several disciplines are confined to one College alone. The appeal, therefore, must fail, and is dismissed without any order as to costs.

• LABOUR AND INDUSTRIAL

Kamla Chaturvedi Vs.National Insurance Co. and Ors. (Decided on 18.11.2008)

Compensation to be paid when due and penalty for default - Claim arising under the Workmen's Compansation Act, 1923 interest was not payable by the Insurance company as there was no contract by the insurer with the insured with regard to the payment of interest - Whether insurance company was liable to pay any interest

In Ved Prakash Garg v. Premi Devi and Ors. MANU/SC/0956/1997, Supreme Court Court observed that the Insurance Company is liable to pay not only the principal amount of compensation payable by the insurer employer but also interest thereon if ordered by the Commissioner to be paid by the insured, employee. Insurance company is liable to meet claim for compensation along with interest as imposed on insurer employer by the Act on conjoint operation of Section 3 and 4(A)(3)(a) of the Act. It was, however, held that it was the liability of the insured employer alone in respect of additional amount of compensation by way of penalty under Section 4(A)(3)(b) of the Act.

In National Insurance co. Ltd. v. Mubasir Ahmed and Anr. MANU/SC/0759/2007 it was, inter alia, Supreme Court held that, interest is payable under Section 4A(3) of Workmen's Compansation Act, 1923 if there is default in paying the compensation due under this Act within one month from the date it fell due. The question of liability under Section 4A was dealt with by this Court in Maghar Singh v. Jashwant Singh MANU/SC/1402/1998. By amending Act 30 of 1995, Section 4A of the Act was amended, inter alia, fixing the minimum rate of interest to be simple interest @ 12%. In the instant case, the accident took place after the amendment and, therefore, the rate of 12% as fixed by the High Court cannot be faulted. But the period as fixed by it is wrong. The starting point is on completion of one month from the date on which it fell due. Obviously it cannot be the date of accident. Since no indication is there as to when it becomes due, it has to be taken to be the date of adjudication of the claim. This appears to be so because Section 4A(1) prescribes that compensation under Section 4 shall be paid as soon as it falls due. The compensation becomes due on the basis of adjudication of the claim made. The adjudication under Section 4 in some cases involves the assessment of loss of earning capacity by a qualified medical practitioner. Unless adjudication is done, question of compensation becoming due does not arise. The position becomes clearer on a reading of Sub-section (2) of Section 4A. It provides that provisional payment to the extent of admitted liability has to be made when employer does not accept the liability for compensation to the extent claimed. The crucial expression is "falls due". Significantly, legislature has not used the expression "from the date of accident". Unless there is an adjudication, the question of an amount falling due does not arise.

In view of what has been stated in Mubasir Ahmed's case (supra) the liability for interest would be in terms of what has been stated in the judgment. The appeal is allowed to the aforesaid extent.

• PROPERTY

Municipal Corporation of Delhi Vs. Shashnak Steel Industries (P) Ltd. (Decided on 17.11.2008)

Incidence of property taxes - Perpetual Sub-lease stood executed between the lessor, lessee and the sub-lessee of an industrial plot - Main contention of the Corporation was that the perpetual sub-lease operated as a conveyance having the effect of transferring leasehold rights, which constituted "land" as defined in Section 2(24) of the Delhi Municipal Corporation Act, 1957, in favour of sub-lessee, who on purchase became the "owner" thereof as defined under Section 2(37) of the said 1957 Act and consequently as the said "owner" became exigible primarily to pay property tax under Section 120(1)(c) of the said 1957 Act - Whether the Corporation was right in imposing primary liability to pay property tax on the sub-lessee under Section 120(1)(c) of Delhi Municipal Corporation Act, 1957

Coming to the interpretation of the provisions of Section 120(1) of the said 1957 Act, at the outset we may state that the language of the said section suggests that the intention of the Legislature in fixing primary liability of property tax upon the owner of the land is to facilitate the collection of property tax. It is not unreasonable for the Legislature to impose the primary liability upon the lessor and to give him the right of recoupment.

If one looks at the Deed in question we find that the lessor has retained its right to determine periodically the rent payable and the premium chargeable. Under the Deed the lessor had to estimate the capital value (including the enhancement) as and when the unit came up. It appears from the Deed that lessor was entitled to a share in the enhanced value. The said Deed further stated that the lessor shall have a right to recover 50 per cent of the unearned increase as and when the lessor gives permission to the sub- lessee to transfer, assign or part with the possession of the plot to any other member of the lessee society. All these terms indicate that under the Deed parties contemplated that on the unit coming up on the leasehold land there would be an accretion in the value. The provision for premium was only an additional source of revenue. Therefore, we do not find any merit in the contention advanced on behalf of the Corporation that on payment of premium the sub-lessee became the owner of the leasehold rights. Further as rightly held by the High Court there are numbers of restrictions put on the sub-lessee which prevented the sub-lessee from full enjoyment of the leasehold rights. Under Clause 6(b) it was not allowed to transfer, assign or part with possession to any other member of the lessee society, except with the prior consent in writing of the lessor which in its discretion is entitled to refuse such concept. Further, under Clause 6(b), in the event of consent being given, it was open to the lessor to claim a portion of the unearned increase in the value.

There is a difference between "liability" and "exemption from liability". We are only concerned with whether the assessee(s) was primarily liable to pay property tax under Section 120(1)(c) of the said 1957 Act. For that purpose, we were required to examine the Deed, to find out whether the case is that of letting or conferment of ownership of leasehold rights. On reading and a2the said Deed, we are of the view that it did not operate as conveyance of leasehold rights. Consequently, Section 120(1)(c) of the said . All the civil appeals filed by the Corporation stand dismissed with no order as to costs.

HIGH COURT

• ARBITRATION

DELHI HIGH COURT

Bougainvillea Multiplex and Entertainment Center Private Limited Vs. Shankar Rai (Decided on 03.11.2008) MANU/DE/1567/2008

'Term Sheet-Rent Offer' - Section 8 of the Arbitration and Conciliation Act, 1996 - Respondent approached the Petitioner to take on lease a shop in NOIDA Entertainment Centre - The date of handover of shop described in the agreement as tentative - respondent sought quotations in respect of photographic machine - The petitioner did not deliver the shop nor gave any exact date - Respondent served a legal notice for refund of security amount and seeking a sum of Rs. 14,73,039/- towards expenses incurred and damages suffered - Respondent filed Civil Suit - Petitioner filed an application for referring the matter to an arbitrator - Dismissed by the Trial Court observing that the Term Sheet Rent Offer was unilateral in nature - Appeal filed by the Petitioner - Whether the matter falls within the ambit of arbitration

Section 8 of the Act is peremptory in nature and in cases where there is an arbitration clause in the agreement, it is obligatory on the Court to refer the parties to arbitration in terms of the Arbitration Agreement. The plaintiff has not only claimed relief under the agreement but has also filed a suit for damages under tort and has claimed damages for the losses suffered by him and the Term Sheet is only a sketchy agreement between the parties. An Arbitrator is bound by the terms of agreement between the parties and therefore, cannot travel beyond the agreement entered into between the parties. The subject matter of the suit was not covered under the agreement between the parties and therefore, the scope of the suit is beyond the terms of the agreement, hence, the petition was dismissed

• INTELLECTUAL PROPERTY RIGHTS

DELHI HIGH COURT

Ford Motor Company and Anr. Vs. Mrs. C.R. Borman and Anr. (Decided on 07.11.2008) MANU/DE/1564/2008

Statutory provisions - Incumbent on the Court - An assumption that no part of the statute is otiose or superfluous - Whether the efforts of the Court were to ascertain the circumstances that were within the contemplation of Parliament while drafting any particular provision of the statute.

Held, that the first and the foremost principle of interpretation of a statute in every system of interpretation is the literal rule of interpretation. The other rules of interpretation e.g. the mischief rule, purposive interpretation, etc. can only be resorted to when the plain words of a statute are ambiguous or lead to no intelligible results or if read literally would nullify the very object of the statute. Where the words of a statute are absolutely clear and unambiguous, recourse cannot be had to the principles of interpretation other than the literal rule. Assuming there is a defect or an omission in the words used by the legislature, the court cannot correct or make up the deficiency, especially when a literal reading thereof produces an intelligible result

• DIRECT TAXATION

DELHI HIGH COURT

Commissioner of Income Tax Vs. Dr. R.N. Goel (Decided on 06.11.2008) MANU/DE/1585/2008

Whether expenses can be claimed by the assessee, as towards payment of commission, as well as, service charges to Chemline India Ltd. can be entertained by the Court as per the provisions of Section 40A of the Income Tax Act, 1961

Held, that whether or not an expenditure is unreasonable and hence, merits disallowance under the provisions of Section 40Aof the Act, is essentially a question of fact.

DELHI HIGH COURT 

Commissioner of Income Tax Vs. Jindal Vegtables Products Ltd. (Decided on 06.11.2008) MANU/DE/1584/2008

Income Tax Act, 1961 - Sections 115JA, 143(2), 143(3) and 260A - Appeal filed under the said provisions - Grounds - Tribunal had wrongly deleted the addition of Rs 22,67,980/- made by the Assessing Officer by disallowing the claim of depreciation made by the assessee on machinery items.

Held, that the there is no question of any perversity in the findings of fact made by the Tribunal as both the Commissioner of Income Tax (CIT) and the Tribunal after closely examining the evidence placed before them returned findings of fact in favour of the assessee.

• BANKING

DELHI HIGH COURT

Suresh Jindal Vs. State and Anr. (Decided on 03.11.2008) MANU/DE/1577/2008

Negotiable Instrument Act - Sections 138, 138(2), 141 and 142; State Financial Corporation Act, 1955; Criminal Procedure Code (CrPC) - Section 482 - Whether the contention of the petitioner that he not, being the drawer of the said cheque and against whom no averments have been made in the complaint disclosing his role qua the company at the relevant time of commission of the offence, be made liable.

Held, that necessary averments ought to be contained in a complaint before a person can be subjected to criminal process. A liability under Section 141 of the Act is sought to be fastened vicariously on a person connected with a company, the principal accused being the company itself. It is a departure from the rule in criminal law against vicarious liability. A clear case should be spelled out in the complaint against the person sought to be made liable.

• COMPANY

GUJARAT HIGH COURT

New India Coal Corp. Vs. Millennium Forging Pvt. Ltd. (Decided on 10.11.2008) MANU/GJ/0710/2008

Overlapping jurisdiction of Company Court and Civil Court- Which regular civil court should adjudicate the controversy as a original Court after undergoing fulfledged trial for winding up of a company.

Held, that if debt is bonafide disputed and defence is a substantial one, it is not the Company Court but the Competent Civil Court which should adjudicate the controversy as a original Court after undergoing full-fledged trial.

• CRIMINAL

DELHI HIGH COURT 

R.P. Malik Vs. Anil Sharma and Ors. (Decided on 12.11.2008) MANU/DE/1614/2008

Contempt of Court - Agreement between the Plaintiff and the Respondent - Down payment was made by way of post dated cheque by the plaintiff - Cheque presented for encashment - Cheque returned with the endorsement 'exceeds arrangement' - Notice sent by the Petitioner replied by the Respondent saying that the cheque had lost - Complaint under Sections 403/406/420/120 B of The Indian Penal Code alongwith Section 138, The Negotiable Act - Magistrate held that at the time of taking cognizance Court is only required to be satisfied whether prima facie case is made out - Appeal filed by the Plaintiff contesting that he is a victim og conspiracy and invoking provisions of The Contempt of Court Act - Whether matter fall under The Contempt of Court Act

Whether an accused is to be arrested or not is to be decided by the police official and not by an accused. If a police officer, with an intention to avoid the effect of the court's order acts in a manner that undermines the dignity and authority of the Court, he, without doubt, commits contempt of the court because such a police officer not only undermine the authority of the Court but also brings it into disrepute by lowering its authority in the eyes of general public. It is only that abuse of the process of Court which is calculated to hamper the due course of judicial proceeding or the orderly administration of justice which is contempt of Court. None of these factors are available in the present facts, therefore, the petition was dismissed

• CONTEMPT OF COURT

DELHI HIGH COURT 

Manju Saxena Vs. Naina Lal Kidwai and Anr. (Decided on 06.11.2008) MANU/DE/1619/2008

Interference with the due course and administration of justice - Petitioner declined the revised working norms for which her services were terminated - Dispute before the Industrial Tribunal - According to the Order, a sum of Rs.30,000/- to be paid to the petitioner per month - Writ Petition filed by the Banking Corporation challenging the Tribunal's Order alongwith an application for interim order - Court stayed the order passeed by the Tribunal - Petition dismissed - Whether not supplying with the email details amounted to contempt of Court

If the order dismissing the writ petition of the respondents has an error apparent petitioner is entitled to get it corrected either by filing the Review petition. If the petitioner is aggrieved on account of non-adjudication of her plea of fraud played by the Banking Corporation, the appropriate remedy for the petitioner is to file an appropriate appeal or petition before the Appellate Court. The petition under Sections 2, 12 and 14 of the Contempt of Courts Act, 1971 will not be maintainable in these facts and circumstances to correct any error committed by the previous court while dismissing the writ petition of the Banking Corporation against the interim order of the Industrial Adjudicator granting her interim relief.

• CONSTITUTION

DELHI HIGH COURT

Kavita Khorwal Vs. The Delhi University and Ors. (Decided on 03.11.2008) MANU/DE/1573/2008

Public Employment - Constant engagement with affirmative action policies not only raised questions relating to their validity and reach, but also crucial questions about the beneficiaries of such policies - Constituent Assembly debated that a "look in" treatment should be given to the community which has been historically discriminated - Petitioner fulfilled the eligibility criteria for admission - Whether Order mentioning the criteria can be modified

Untouchability is not a short or temporary feature; it is a permanent one. In relation to the Union Territory of Delhi, for admissions to institutions managed and completely controlled by the Government of the National Capital Territory of Delhi, reservation, under Article 15(4) can be enjoyed by only those caste groupings enlisted in the Scheduled Caste (Union Territories) Order, 1951. Members of castes and tribes who do not fulfill the description, and/or are not described in that Order, would not be entitled to such benefits. Therefore, the Order was made absolute.

• TRUSTS AND SOCIETIES

GUJARAT HIGH COURT

Devavrat Shivaprasad Bhatt Vs. Housing Urban Development Corporation (HUDCO) and 4 Ors. (Decided on 11.11.2008) MANU/GJ/0723/2008

Dispute between the Society and the members - Society took loan from the Respondent - the loan was to be procured by the Society from HUDCO and not by the petitioners concerned in their individual capacity - Proceedings initiated before Debt Recovery Tribunal for non-payment of installments - Order passed against the Chairman of the Society and property to be auctioned for recovery of the loan amount - Whether flats can be attached for the purpose of sale

The Society shall take into consideration the amount already deposited by the petitioner concerned and shall also give credit of the amount paid by the petitioner pending the petition. If the proportionate liability exist after apportionment qua each individual member allottee concerned, who has been allotted respective tenement/flat, any amount is payable, it will be required for the petitioner concerned to pay the same and if ultimately found by the Recovery Officer, as declared by the administrator before this Court that the petitioners concerned have honoured their liability in full to the extent of the proportionate amount attributed to them, the property of the petitioners concerned would not be sold in execution of the recovery certificate, which is subject matter of the petition.

• ENVIRONMENT

DELHI HIGH COURT

Rajendra Singh and Ors. Vs. Government of NCT of Delhi and Ors. AND Vinod Kumar Jain Vs. Union of India (UOI) and Ors. (Decided on 03.11.2008)

Construction on the riverbed by the Respondent - Petitioner claims that such construction would not only destroy Yamuma but also is harmful to ecological sensitive area - The Respondent contended that all necessary formalities have been completed - Whether the construction site is a riverbed

Apart from being main source of water supply, Yamuna is one of the major sources of ground water recharge. The issues involved are of great importance. The Court appointed a Committee to undertake the study of the said construction and if such study reveals that such construction is harmful to the environment or likely to harm the environment, the Committee may file an interim report based on which the Court can take suo motu action.