SUPREME COURT

• CRIMINAL

P. Vijayan Vs. State of Kerala and Anr (Decided on 27.01.2010) MANU/SC/0058/2010

Criminal - Discharge Petition - Section 227 and Section 228 of Code of Criminal Procedure, 1973 - Appellant-accused-retired police officer chargesheeted by CBI for murder of a person in a fake encounter in 1970 - Appellant-accused filed discharge petition against same - Trial Court dismissed discharge petition - Hence, present appeal - Whether the appellant established sufficient ground for discharge under Section 227 of the Cr.PC, and whether the Trial Judge as well as the High Court committed any error in rejecting the claim of the appellant?

Held, Section 227 in the new Code confers special power on the Judge to discharge an accused at the threshold if upon consideration of the records and documents, he find that "there is not sufficient ground" for proceeding against the accused. In other words, his consideration of the record and document at that stage is for the limited purpose of ascertaining whether or not there is sufficient ground for proceeding against the accused. If the Judge comes to a conclusion that there is sufficient ground to proceed, he will frame a charge under Section 228, if not, he will discharge the accused.

In the case on hand, after evaluating the materials produced by the prosecution and after considering the probability of the case, the Judge being satisfied by the existence of sufficient grounds against the appellant and another accused framed a charge. Whether the materials at the hands of the prosecution are sufficient or not are matters for trial. At this stage, it cannot be claimed that there is no sufficient ground for proceeding against the appellant and discharge is the only remedy. Further, whether the trial will end in conviction or acquittal is also immaterial. All these relevant aspects have been carefully considered by the High Court and it rightly affirmed the order passed by the Trial Judge dismissing the discharge petition filed by A3-appellant herein.

• CONTRACT

Trimex International FZE Ltd. Dubai Vs. Vedanta Aluminium Ltd., India (Decided on 22.01.2010) MANU/SC/0057/2010

Contract - Offer and Acceptance - Communication of acceptance of contract when complete - Section 4 of the Indian Contract Act 1872 - Petitioner submitted commercial offer through email for supply of bauxite to Respondent - Respondent conveyed acceptance of offer through e-mail - Parties entered into contract - Contract containing Arbitration Clause for resolution of disputes - Thereafter, Respondent refused to honour contract on ground that there was no concluded contract between the parties and the parties are still not ad idem in respect of various essential features of the transaction - Whether Respondent bound by contract?

Held, if the intention of the parties was to arbitrate any dispute which arose in relation to the offer of 15.10.2007 and the acceptance of 16.10.2007, the dispute is to be settled through arbitration. Once the contract is concluded orally or in writing, the mere fact that a formal contract has to be prepared and initialed by the parties would not affect either the acceptance of the contract so entered into or implementation thereof, even if the formal contract has never been initialed. The acceptance conveyed by the respondent, satisfies the requirements of Section 4 of the Indian Contract Act 1872.

• CIVIL

Sri Jeyaram Educational Trust and Ors. Vs. A.G. Syed Mohideen and Ors (Decided on 22.01.2010) MANU/SC/0053/2010

Civil - Suits relating to Public Charities - Pecuniary limits - Jurisdiction of District Courts and Subordinate Courts - Section 12 of Tamil Nadu Civil Courts Act, 1873 and Section 92(1) of Civil Procedure Code

Held, Section 92(1) is a self contained provision, and conferment of jurisdiction in regard to suits under that section does not depend upon the value of the subject matter of the suit. Therefore, insofar as the suits under Section 92(1) are concerned, the District Courts and Sub-ordinate Courts will have concurrent jurisdiction without reference to any pecuniary limits. Pecuniary limits mentioned in Section 12 of the Civil Courts Act, do not apply to suits under Section 92(1) of the Code.

Civil - Suits relating to Public Charities - Jurisdiction of District Courts and Subordinate Courts - Conferment of Jurisdiction by State Govt. vide notification - Section 92(1) of Code of Civil Procedure

Section 92(1) provides that a suit under that section can be instituted "in the Principal Civil Court of original jurisdiction or in any other court empowered in that behalf by the State Government". Therefore, where jurisdiction is also conferred on any other court by the state government by a notification (under Section 92(1) of the Code or under any similar provision), then that court and the District Court will have concurrent jurisdiction.

• COMPANY

Mahesh Ratilal Shah Vs. Union of India (UOI) and Ors (Decided on 19.01.2010) MANU/SC/0048/2010

Company - Withdrawal of recognition to Bombay Stock Exchange - Alleged violation of statutory provisions - Non publication of Rules and Bye-laws of Bombay Stock Exchange prior to its recognition - Section 9 of the Securities Contracts (Regulation) Act, 1956 - Whether in the absence of publication of the Rules and Bye-laws of the Bombay Stock Exchange, which had been framed prior to its recognition in 1956 under the 1956 Act, its activities could be said to be without authority.

Held, since the said Rules and Bye-laws had been in existence from long before the enactment of 1956 Act and the grant of recognition to the Stock Exchange, the same did not require publication in terms of Section 4 of the 1956 Act. The publication of the Rules and Bye-laws of the Stock Exchange was not intended in the Securities Contract (Regulation) Act, 1956, as otherwise some provision would have been made in the Act with regard to pre- recognition Rules and Bye-laws. While the Act provides for publication of amendments to the Rules and Bye-laws after grant of recognition, the Act is silent with regard to the publication of the pre- recognition Rules or Bye-laws which were already in existence and had been acted upon all along.

HIGH COURTS

• MOTOR VEHICLES

MADRAS HIGH COURT

Oriental Insurance Company Vs. Rahamatullah and K. Aliyar (Decided on 19.01.2010) MANU/TN/0045/2010

Motor Vehicles - Motor Vehicle Accident - Award of compensation by Tribunal - Quantum of compensation - Challenge thereto - Appellant insurance company challenged quantum of compensation awarded by Tribunal on ground that it was excessive and arbitrary and that Tribunal had erred in fixing the disability at 20% in the absence of any medical evidence and as such the amount of Rs. 20,000/- awarded for disability is liable to be set aside.

Held, even though the Tribunal had awarded a sum of Rs. 20,000/- for disability, without the Doctor giving a Disability Certificate, this Court, on considering the nature of injuries sustained by the claimant i.e. is of the view that the compensation granted under this head is on the lower side, but in spite of this error, the total award granted by the Tribunal is reasonable and fair.

• INDIRECT TAXATION

MADRAS HIGH COURT

K.R. Gowri Sedhuraman Vs. The Kumbakonam Municipality, rep. by its Executive Authority The Commissioner (Decided on 22.01.2010) MANU/TN/0079/2010

Indirect Taxation - Municipal Tax - Revising of Tax levied - Tax revised without providing sufficient opportunity - Tamil Nadu District Municipalities Act, 1920 - Defendant-Respondent Municipality revised tax levied on Plaintiff's building based on amending Act 65 of 1997 without affording Plaintiff-Appellant sufficient opportunity to present his case - Whether the revised tax fixed by the respondent/defendant is within the contour of law or the same is illegal and also arbitrary

Held, It has already been pointed out that the amending Act 65 of 1997 is or was not in force at any point of time. In fact, the same has not been notified and subsequently the same has been repealed and therefore, the defendant has to follow the relevant provisions of the Tamil Nadu District Municipalities Act. In the instant case, the same have not been followed and therefore, it is needless to say that Ex.A1, demand notice is totally illegal and also arbitrary. Further, if sufficient opportunity has not been given with regard to assessment of tax, the proceeding is liable to be vitiated by way of filing a civil suit (Ratio in K.R. Abirami v. The Kumbakonam Municipality rep. by its Executive Authority, the Commissioner, Dr. Murthy Road, Kumbakonam Town applied). Second appeal allowed.

• TRUSTS AND SOCIETIES

BOMBAY HIGH COURT

Kesao son of Narayan Patil @ Babasaheb Vs. State of Maharashtra through its Secretary, Co-Operative Department and Ors. (Decided on 15.01.2010) MANU/MH/0024/2010

Trusts and Societies - Allegation of mismanagement - Inquiry by Registrar - Section 83 of Maharashtra Co-Operative Societies Act, 1960 - Joint Registrar ordered enquiry into allegation of mismanagement of sugar factory by Respondents - Order of Inquiry stayed vide Revision Application - Learned Single Judge restored Order of Inquiry in Writ Petition - Hence, present Letter Patent Appeal - Whether directions issued by learned Single Judge exercising jurisdiction of superintendence, restoring Order of Inquiry, outside the scope of the jurisdiction of superintendence or not?

Held, the enquiry under Section 83 of the Act is intended to be expedited, done/caused meaningfully, impartially and un-influenced from pressure quarters of the power. These directions do perfectly fit within the jurisdiction of superintendence, and were competent had those been issued by State Government while exercising powers under Section 154 of Maharashtra Co-Operative Societies Act. Therefore, Order passed by learned Single Judge is the justice in situation. Letters Patent Appeal is dismissed.

• CRIMINAL

BOMBAY HIGH COURT

Sunil D. Thaware Vs. State of Maharashtra (Decided on 07.01.2010) MANU/MH/0009/2010

Criminal - Bail application by Accused - Right of bail - Section 167(2) of Code of Criminal Procedure - Applicant-accused did not furnish bail on stipulated date as directed by Learned Magistrate but furnished sureties for bail at a later date - In interim, police filed chargesheet against Applicant-accused - Learned Magistrate declined grant of bail - Hence, present application - Whether Applicant-accused is entitled to be granted bail?

Held, If for any reason the accused is unable to furnish the bail as ordered by the Magistrate and in the meanwhile, the chargesheet is filed by the police, the indefeasible right which had accrued to the accused for being released on bail by virtue of Section 167(2) of the Cr.PC. would stand extinguished. In the present case, the so-called indefeasible right of the Applicant which had accrued to him by virtue of the order dated 14th July 2009 passed by the Magistrate stood extinguished on account of his unwillingness or inability to furnish the bail. For these reasons, the Applicant cannot be granted bail on the basis of his so called indefeasible right under Section 167(2) of the Cr.PC. Application is accordingly dismissed.

• INTELLECTUAL PROPERTY RIGHTS

DELHI HIGH COURT

Music Choice India Private Limited Vs. Phonographic Performance Limited (Decided on 22.01.2010) MANU/MH/0037/2010

Intellectual Property Rights - Copyright - Compulsory license in works withheld from public - Section 31(l)(b) Copyright Act, 1957 - Plaintiff moved Civil Court for grant of relief while his application for grant of license and fixation of royalty was pending before Copyright Board - Whether Civil Court has jurisdiction to try and decide the suit pertaining to the fixation of royalty by the statutory board under Section 31 of the Copyright Act?

Held, What is prayed by the Plaintiff in the suit filed by it before the learned Trial Judge is nothing short of compulsory license within the meaning of Section 31(l)(b) of the Act while its application for the very same purpose is pending before the Board, a statutory authority. Thus, the relief prayed for in the suit is impliedly a relief for grant of compulsory license which authority is exclusively vested with the Board. Such a relief cannot be granted by the Civil Court. The jurisdiction of the Civil Court cannot be allowed to be invoked to short circuit the statutory process of licensing and therefore, the Court would lack in its jurisdiction to entertain the suit.

The only remedy available to the Plaintiff as per the scheme of the Act is to prosecute its application pending before the Board for a compulsory license. It cannot file a suit for any interim arrangements pending in such an application and the Civil Court will have no jurisdiction to entertain such applications. Seeking such a remedy is to by pass regulatory provisions as well as the penal provisions as are set out in Chapter XI and XIII of the Act and the Civil Court cannot have such a jurisdiction to grant something which would frustrate the provisions of a statute. Appeal dismissed.

• CONSTITUTION

C.R. Park M, N and P Blocks Residents Welfare Association and Anr. Vs. Union of India (UOI) and Ors.  (Decided on 21.01.2010) MANU/DE/0099/2010

Constitution - Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth - Prohibition of discrimination in the matter of access to public spaces - Article 15 of Constitution of India - Petitioner-Resident Welfare Association challenged allotment of suit land in favour of Respondent-Buddhist Mission (BTRM) - Majority of residents of Society being Bengalis wanted suit land to hold their social functions and also as a play area - Whether allotment of land is valid?

Held, merely because the majority of the residents of a colony want to use the plots in question for holding their own social functions, the allotment made in favour of BTRM consistent with the layout plan cannot be permitted to be cancelled. It may be useful to recall that Article 15(2) of the Constitution prohibits discrimination in the matter of access to public spaces. In a residential colony in an urban metropolis any attempt by the members of the dominant community of that colony to exclude members of any other community from access to public space and reserve such space to themselves must be frowned upon. Such a move will defeat the objective of a true integration of populations irrespective of their religious or linguistic denomination. The Master Plan for Delhi 2021 consistent with the provisions of Article 15 of the Constitution is meant to foster equitable and non-discriminatory access to public spaces as much as to land held by the state agency, in this case the DDA. The court should not be used to achieve the impermissible practice of segregation of populations in a colony may be comprised predominantly of the members of a particular community. In the present case, the mere fact that CR Park is dominated by Bengalis, cannot justify the denial of an allotment of land, on equitable basis, to other communities. Writ Petition dismissed.