SUPREME COURT

• PROPERTY

Kartick Chandra Mandal Vs. Netai Mondal (dead) by Lrs. and Ors. (Decided on 06.01.2009)

Partition of property- Partition of suit property among co-sharers other than by a registered instrument or by a decree or order of court-Whether any partition among the co-sharers other than by a registered instrument or by a decree or order of a Court is a valid partition- Section 14 of the West Bengal Land Reforms Act, 1955

After the introduction of Section 14 of the West Bengal Land Reforms Act, 1955, the partition of a holding can be effective only by registered instrument or by decree or order of a Court.

• SERVICE

Roop Singh Negi V. Punjab National Bank and Ors. (Decided on 19.12.2008)

Dismissal from service on allegation of misconduct- Dismissal by Disciplinary Authority, by merely relying on report of Enquiry Officer, without assignment of proper reason or proper appreciation of evidence and non consideration of discharge of appellant by Criminal Court with regard to same case.

Order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the Criminal Court on the basis of self-same evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the Enquiry Officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the Enquiry Officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof.

• Intellectual Property Rights

Thukral Mechanical Works V. P.M. Diesels Pvt. Ltd. and Anr. (Decided on 18.12.2008)

Rectification of registered trademark from Trademark Register- Application for rectification or removal and imposition of limitations on ground of non use of registered trademark for specified period- Section 46(1)(b) of Trade Marks Act- Whether a right of registered trademark gets automatically extinct upon expiry of specified period on ground of non -use if it has been validly assigned?

The right of a registered trade mark is not lost automatically on the expiry of five years and one month. It does not provide for a `sun set' law. It has to be adjudicated upon. Whether the registered proprietor of the trade mark had taken recourse to trafficking or not must be determined in an appropriate proceeding. So long as the right to assign a registered trade mark remains valid, once the same is validly assigned, the assignee derives the same right as that of the assignor in terms of the statute. A title to a trade mark derived on assignment as provided for under the Act cannot be equated with a defective title acquired in any other property as admittedly on the date of assignment, the right of the registered trade mark was not extinguished.

HIGH COURT

• CONSUMER

DELHI HIGH COURT

Cox and Kings (I) Ltd. Vs.Raj Kumar Mittal and Anr. and Ors. (Decided on 10.12.2008 ) MANU/DE/1763/2008

Aggrieved by an award of District Consumer Forum the Pertitioner has filed this petition - Petitioner is a company carrying on business of arranging travels and tours- Respondents approached the District Forum with the complaint that the petitioner committed multifarious deficiencies due to which they did not enjoy their trip - District Forum awarded compensation to each of the respondent on account of deficiency of service - Issue now is whether this Court has the jurisdiction to interfere with the award.

HIgh Court has supervisory jurisdiction, under the provisions of Article 226 and 227 of Constitution, over all tribunals subordinate to it but it must be kept in mind that these supervisory powers should not be exercised in a manner so as to render the legislative measures as infructuous. Once a specialized body and tribunals have been provided, it is not fit for the High Court to assume jurisdiction even where an alternative remedy is provided by the legislature and burden itself with the work of other tribunals as well. The whole purpose of creation of Tribunals stand defeated if the High Court usurps jurisdiction of other tribunals while exercising powers under Article 227.

• CONTRACT

BOMBAY HIGH COURT

Lanco Infratech Limited A Limited Company, constituted and incorporated under the Companies Act, 1956 through its Authorized Signatory Shri B. Srinivas Rao Vs. Mormugao Port Trust A Trust incorporated and constituted under the Major Port Trusts Act, 1963 for the Port of Mormugao through its Chief Engineer (Decided on 11.12.2008) MANU/MH/1205/2008

Petitioner i.e. Lanco Infratech Limited along with Pembinaan Redzai Sdn. Bhd. and M/s Emirates Trading Agency LLC submitted their bids issued by Mormugao Port Trust inviting tenders from interested parties in accordance with Request for Qualification (hereinafter referred to as "RFQ"), in order to shortlist competent bidders for developing a Coal Import Terminal at Port of Mormugao, Goa on design, build, operate and transfer (DBOT) basis. Respondent shortlisted five tenderers other than the Petitioner - Petitioner has filed this petition on grounds of Procedural impropriety - illegal, irrational or arbitrary.

There's nothing to hold that the decision of the Respondents is illegal, irrational or arbitrary to invite application of Wednesbury principle of unreasonableness. Respondents, based upon the advise of the Expert Body which was called as "Technical Advisors" , took the decision. And merely because it is possible to collectively read all the clauses and give a meaning different than the one given by the Authorities per se would not be a ground justifying judicial intervention by this Court in exercise of its power under Article 226 of the Constitution of India.

• CRIMINAL

BOMBAY HIGH COURT

Farook Mohammed Kasim Mapkar Vs. The Commissioner of Police for Greater Mumbai and Ors. (Decided on 18.12.2008) MANU/MH/1224/2008

Petitioner addressed a complaint to the Sr. Inspector of Police stating all the facts relating to his case - Petitioner also made a request that this complaint should be treated as an F.I.R. and that the crime should be registered against one and others for offences under Section 302 and 307 of the I.P.C. as well as for initiating false cases against the petitioner - However no action was taken on his complaint.

There must be an information given to the concerned authorities and such information must disclose a cognizable offence. If a person was aggrieved by the inaction of the police officials in registering the FIR, the modalities contained in Section 190 read with Section 200 of the Code are to be adopted and observed.

MADRAS HIGH COURT

Martin @ Tamilselvan and Ors.Vs State by The Deputy Superintendent of Police, Q Branch CID AND C. Vijayakumar and P. Pugalenthi Vs. The Member Secretary, Tamil Nadu State Legal Services Authority, The Home Secretary, Government of Tamil Nadu and The Deputy Superintendent of Police and Chief Investigation Officer, Special Investigation Team, Crime Branch - CID (Decided on 10.12.2008) MANU/TN/1364/2008

Right of free legal service to an accused- Article 21 and Article 39 A of Constitution-Whether accused would be entitled to engage pleaders of their choice and such pleaders are entitled to the remuneration from the State

An accused is entitled to a fair trial in accordance with the principles of fundamental justice that requires funded pleader to be provided, if the accused wishes a pleader, but cannot pay a pleader. The object for a provision of a pleader to a disadvantaged accused is to minimise the imbalance in the adversarial system, where the accused is pitted against the awesome prosecutory machinery of the State. In our criminal jurisprudence, the presumption of innocence - being innocent until proven guilty - is a legal right that the accused in criminal trials is entitled to. The right of such reasonable, fair and just procedure could be traced to the fundamental right guaranteed under Article 21 of the Constitution of India. Article 39A emphasises that the free legal service is an inalienable element of reasonable, fair and just procedure.

Absence of specific averment by accused for appointment and remuneration of pleader to defend his case: Inherent Power of High Court to direct appointment of pleader to defend accused in the absence of specific averment by Accused: Sub-section (1) of Section 304 of Code of Criminal Procedure and Articles 226 and 227 of Constitution of India : Whether an accused is entitled to a funded pleader to defend his case in the absence of specific averments made by the accused for the same in terms of Sub-section (1) of Section 304 of Code of Criminal Procedure?

As the prime consideration would be the right of the accused, the relief of payment of remuneration on the basis that the pleaders have defended the accused cannot be rejected on technical grounds and in the peculiar facts and circumstances of the case, namely, that when the trial itself had already been completed and the pleaders have already defended the accused by effectively cross examining the accused, it would not be proper for this Court to reject the claim on the ground that the accused had not approached the Court of Session under Sub-section (1) of Section 304 of the Code of Criminal Procedure for appointment of pleaders and for payment of remuneration. Even in the absence of any specific averments made in terms of Sub-section (1) of Section 304, by virtue of the inherent powers of this Court, a direction can be issued to the State for payment of fee to the pleaders.

• DIRECT TAXATION

BOMBAY HIGH COURT

Mr. Balmukund Acharya, Proprietor of Laxmi General Supply Company Vs. Deputy Commissioner of Income-tax, Special Range, Commissioner of Income-tax and Union of India (UOI) through Ministry of Law (Decided on 19.12.2008) MANU/MH/1219/2008

Doctrine of estoppel - Constitution of India - Article 265 - If a particular levy is not permitted under the Act, whether the tax can be levied applying the doctrine of estoppel.

In the case of Nirmala L. Mehta v. A. Balasubramaniam, C.I.T. MANU/MH/0328/2004 it was held that there cannot be any estoppel against the statute. Article 265 of the Constitution can be applied here, which states that no tax shall be levied or collected except by authority of law. Acquiescence cannot take away from a party the relief that he is entitled to where the tax is levied or collected without authority of law.

DELHI HIGH COURT

Commissioner of Income Tax Vs. Smt. Rani Shankar Mishra (Decided on 12.12.2008)

Amount received by assessee as compensation as part of settlement of job dispute Overseas - Amount received by assessee by way of compensation for not having been offered the job with the Voice of America in settlement of a class action suit - Whether such amount becomes part of salary and is taxable - Section 17(3)(iii) of Income Tax Act

The expression "profits in lieu of salary" has been defined in Section 17(3) of the said Act. A plain reading thereof would indicate that the amount due or received whether in lump sum or otherwise by an assessee from any person must be in connection with the employment with that person. The Commissioner of Income-tax had categorically found as a fact that there was no employer-employee relationship between the assessee and the Voice of America or the United States Government. Consequently, the Commissioner of Income-tax (Appeals) concluded that the said amount received by the assessee cannot fall within the concept of "salary". The tribunal also noted the factual position that the assessee was, in fact, never offered the job. Consequently, the only conclusion that could be arrived at with regard to the nature of the amount received by the assessee was that it was not offered as a part of or arising out of the employment of the assessee. The amount was received by the assessee by way of compensation for not having been offered the job with the Voice of America. Appeal dismissed.

• CONSTITUTION

HIGH COURT OF DELHI

Shri Praveen Sharma S/o Shri H.L. Sharma Vs.The Secretary Union Public Service Commission through its Chairman and The Secretary Ministry of Personal Public Grievances and Pensions Department of Personal and Training Government of India (Decided on 16.12.2008)

In Civil Services Examination, candidates entitled to only four attempts at passing examination - Petitioner-candidate, in his 4th and last attempt in CSE, could not appear in some papers of CSE as he met with accident during examination dates- As per petitioner, his fourth appearance in CSE should be treated as an 'aborted attempt' and not an 'attempt' at taking CSE - For the purposes of Civil Services Examinations, what constitutes an 'attempt' at taking an examination' Does it mean taking all the papers in the examination or does it include taking some of the papers only'

Regulation 4(iii-a) of the Indian Administrative Service (Appointment by Competitive Examination) Regulations, 1955 makes it absolutely clear that a candidate shall be permitted only four attempts at the examination and the appearance of a candidate at the examination will be deemed to be an attempt irrespective of his disqualification or cancellation of his candidature.

Any appearance in the examinations whether preliminary or main would constitute an attempt in the examination. The reason why a candidate cannot successfully complete the examination and be selected is of no consequence at all.

While the reason in the case of Petitioner is genuine, but that by itself cannot entitle him to a waiver of the rules and regulations governing such examinations, particularly since there is no such power of relaxation available with the UPSC. Petition dismissed.

• FAMILY

HIGH COURT OF KERALA

Saidali K.H. V. Saleena (Decided on 22.10.2008)

Dissolution of Muslim Marriage- Section 2(ii), (iv) and (viii)(a)(d) and (f) of the Dissolution of Muslim Marriages Act, 1939: Whether a Muslim wife is entitled to a decree of divorce for the only reason that the husband contracted a second marriage?

Inspite of the first marriage, a second marriage can be contracted by the husband under Mohammedan Law subject to certain religious restrictions. The concept of Muslim law is based upon the edifice of Shariat and that Muslim Law as traditionally interpreted and applied in India permits more than one marriage during the subsistence of one and another though capacity to justice betweeen co-wives in law is condition precedent and that even under Muslim Law plurality of marriages is not unconditionally conferred upon the husband.

Coming to the case on hand, the reasons stated by the Family Court that the second marriage contracted by the respondent/husband and the refusal of the petitioner/wife to live with the husband on account of his second marriage are not by themselves sufficient grounds to grant a decree for dissolution of marriage under the Dissolution of Muslim Marriages Act. Inequitable treatment to one wife against the Quranic injunction gives rise to a tenable claim for divorce.