SUPREME COURT

• INCOME TAX

Ajmera Housing Corporation & Anr. Etc. Etc. v. Commissioner of Income Tax (Decided on 20.08.2010) MANU/SC/0623/2010

Direct Taxatation - Undisclosed income in settlement application - Settlement Commission under Section 245D (4), Income Tax Act, 1961 passed an order t deciding to proceed with the application, a further disclosure of Rs. 2.76 crores was made by assessee - Whether Assessee's submission could be accepted and order made by settlement commission Under Section 245D(1) of Act was conclusive?

Held ,as in the present case, the manner in which Assessee's disclosures of additional income at different stages of proceedings were entertained by the Settlement Commission, disregarding the objection of the Commissioner that the Assessee had not made a full and true disclosure of their income in the application under Section. 245C(1) of the Act, is unacceptable .Under Section 245C(1) of the Act disclosure of 'full and true' particulars of undisclosed income and 'the manner' in which such income had been derived are the pre-requisites for a valid application and unless the Settlement Commission records its satisfaction on this aspect, it will not have jurisdiction to pass any order on the settlement application . An Assessee cannot be permitted to resile from his stand at any stage during the proceedings . Therefore, by revising the application, the applicant would be achieving something indirectly what he cannot otherwise achieve directly and in the process rendering the provision of sub-section (3) of Section 245C of the Act otiose and meaningless .Assessee had not made true and full disclosure of their income in the previous application, the foundational requirement of a valid application under Section 245C(1) of the Act.

• ELECTRICITY

Haryana State Electricity Board v. M/s Hanuman Rice Mills & Ors. (Decided on 20.08.2010)

Demanding payment towards arrears of electricity charges due by the previous owner - After taking possession of the premises - High Court held that the liability of a consumer to pay charges for consumption of electricity, cannot be fastened on a subsequent auction purchaser of the property - Whether order of the High Court could be upheld?

Held, electricity arrears do not constitute a charge over the property and hence a transferee of a premises cannot be made liable for the dues of the previous owner/occupier . But where the statutory rules or terms and conditions of supply authorize the supplier of electricity, to demand from the purchaser of a property claiming re-connection or fresh connection of electricity, the arrears due by the previous owner/occupier in regard to supply of electricity to such premises, the supplier can recover the arrears from a purchaser . In the present case, Appellant did not plead in its defence that any statutory rule or terms and conditions of supply, authorized it to demand the dues of previous owner, from the first Respondent . Appellant also did not demand the alleged arrears, when first Respondent approached the appellant for electricity connection in its own name for the same premises and obtained it in the year 1991. More than three years thereafter, a demand was made by the appellant for the first time on 16.1.1995 alleging that there were electricity dues by the previous owner . In these circumstances the claim relating to the previous owner could not be enforced against the first Respondent.

Mahendra Nath Yadav v.Sheela Devi (Decided on 25.08.2010)

Dissolution of marriage by Panchyatas per Custom - Section 13 of the Hindu Marriage Act 1955 - Whether dissolution of marriage through panchayat,as per custom,can be a ground for granting divorce under section13 of HMA?

Held, as the High Court has rightly held that dissolution of marriage through Panchayat as per custom prevailing in that area and in that community permitted cannot be a ground for granting divorce under Section 13 of the Act, 1955. Court fully agreed with the said decision for the reason that in case the Appellant wanted a decree on the basis of customary dissolution of marriage through Panchayat held on 7th June, 1997,then he would not have filed a petition under Section 13 of the Act, 1955. Filing this petition itself means that none of the parties was of the view that the divorce granted by the Panchayat was legal.Therefore in view of the above, Court didnt find any reason to interfere with the well-reasoned judgment of the High Court.

• CONSTITUTION

Union of India v. Choudhuri Nayak (dead by LR) and others (Decided on 20.08.2010)

Public interest litigation - First Respondent was drawing freedom fighter's pension by producing false and fabricated documents - Under Freedom Fighters Pension Scheme, 1972 - Cancillation of pension granted to first Respondent - Whether the cancellation of the pension was justified?

Held, as the scheme was introduced with the noble intention of honouring those who fought for the freedom of the country. As typed, unsigned copy of jail certificate and which was not corroborated by any other document proved false was the first ground of cancellation of pension .The second ground for cancellation was the false claim of age in order to secure the pension . Hence, it was proved that the claim of the first Respondent was based on false and fabricated documents . Therefore the cancellation of the pension was justified and cannot be found fault with order of Central Government canceling the pension affirmed.

HIGH COURT

• TENENCY

PUNJAB HIGH COURT

Balbir Kaur & Others v. Roop Kumar & Others (Decided on 23.08.2010)

Rent Control - Section. 13(4) and section 15(5) - East Punjab Urban Rent Restriction Act, 1949, . Eviction petition . Appellate Authority dismissed the eviction petition on the ground that all the Petitioners are well established in their lives and they do not intend to start any Departmental Store as suggested by the Petitioners.

Whether Appellate authority rightly dismissed eviction petition of the landlords?

Held, section 13(4) of the East Punjab Urban Rent Restriction Act, 1949, need alleged by the landlords must be presumed to be correct and genuine, unless of course, proved otherwise . In the present case, tenant could not prove that the need of the landlords is not genuine. On the basis of the apprehension, tenant was denying the need of the landlords and that apprehension was baseless . Hence, eviction petition was wrongly dismissed by both the Courts. Impugned orders quashed. Petition allowed.

DELHI HIGH COURT

National Textile Corporation (DP&R) Ltd. v. Punjab National Bank & Ors. (Decided on 25.08.2010)

Delhi Rent Control Act, 1958 - Public Premises (Eviction of Unauthorized Occupants) Act, 1971 - Petitioner defaulter in payment of rent - Legal notice served upon the petitioner terminating the said tenancy w.e.f. 30.06.1987 - The Estate officer served a show cause notice dated 23.07.1987 on the Petitioner and an eviction was passed by the Estate officer against the Petitioner - Petitioner filed present Petition submitting that he was a statutory tenant under the Provisions of the Delhi Rent Control Act, 1958 and therefore the provisions of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 could not have been invoked against the Petitioner to seek eviction of the Petitioner from the premises under its occupation - Whether Petitioner's contentions could be accepted and order of the Additional District Judge could be set aside?

Held, under Public Premises (Eviction of Unauthorised Occupants) Act, 1971, the eviction of unauthorized occupants from the public premises and for certain incidental matters . It provides for a summary procedure for eviction of those persons who have no authority in law to remain in possession of the land . The Petitioner has failed to satisfy this court as to how and in what manner the occupation of the Petitioner in the demised premises is authorized occupation. The Petitioner has not disputed the fact that its tenancy was terminated through a legal and valid notice served by the respondent vide notice dated 3.8.1987. The Petitioner has also not disputed the fact that it did not contest the proceedings before the Estate Officer which ultimately resulted in the passing of an eviction order against it. The petitioner has already been successful in delaying the matter for more than 20 years and being a Government Corporation it was expected of the Petitioner to have followed the mandate of the law in handing over the possession of the said premises after it was declared as an unauthorized occupant of the same instead of delaying the matter for such a long time. A tardy approach as that of the Petitioner defeats the purpose for which the Public Premises Act was enacted. . Hence Petition dismissed.

• PROPERTY

DELHI HIGH COURT

Mrs. Jaya Bhandari & Ors. v. M/s Malhan Builders & Ors. (Decided on 25.08.2010)

Suit for specific performance of the contract - Building not constructed as per the building by-laws- Collaboration agreement - Execution of agreement was dismissed - Whether the Appellants were entitled to the grant of decree of specific performance of the contract?

Held, in terms of clause 9 of the collaboration agreement, for any violation committed by the builder they were to keep the owners harmless and indemnified for any loss claims or demands resulted to the owners due to such non-performance or non-observance of rules and regulations. It cannot be said that any illegality was committed by the builders in executing the agreement to sell in favour of the Appellants for the sale of the third floor of the said property. As there was nothing illegal in the transfer of the third floor of the said property by the builders in favour of the Appellants, therefore so far the said agreement to sell is concerned, the same can neither be treated as unlawful or void on account of unauthorized construction on the part of the builder on the said floor. Therefore Court considered that the existence of unauthorized construction on the third floor of the said property could not have created any bar in the grant of decree for specific performance by the Ld. Trial Court in favour of the Appellants and against the respondents. The existence of any unauthorized construction on the third floor would have certainly caused suffering to the purchasers i.e. the Appellants herein or the same could have been at the sufferance of the builders in terms of Clause 9 of the Collaboration Agreement had there been any loss occasioned to the owners as a result of raising of the illegal construction by the builder. Nevertheless, as already discussed above, this question in any case has now become academic since now the third floor construction already stands regularized by the MCD.

Thus the Appellants were entitled to the grant of decree of specific performance of the contract and accordingly the suit is decreed against all the Respondents and in favour of the Appellants. The impugned judgment and decree dated 29.03.2005 is accordingly set aside. The Respondents are directed to execute the sale deed in favour of the Appellants in terms of Clause 11 of the collaboration agreement dated 01.06.1983 within a period of one month from the date of this order and at the time of execution of sale deed the Appellants shall pay the balance sale consideration amount to the builders.

TRIBUNAL

Intellectual Property Rights

M/s Music Broadcast Pvt. Ltd., Calcutta v. M/s Phonographic Performance Ltd., Kolkata (Decided on 25.08.2010) MANU/CP/0001/2010

Copyright - Grant of Licence - Section 31(1)(b) of the Copyright Act, 1957 - Grant licences for communicating the work recorded in sound recordings in the repertoire, present and future, of the Respondent to the public by broadcast - Dispute over applicable fee for licence

Held, foreign royalty rates are irrelevant as single accepted rate as the conditions vary from country to country and in certain cases taking in consideration a particular context of the matter the precedent of a particular rate cited cannot be accepted . Further, ground conditions in other countries are entirely different from India. In the given situation, where the FM broadcasting, though in private sector, is more a vehicle of governmental plan for socio-economic upliftment, the music providers should be satisfied with a revenue sharing plan allocating a fixed percentage of net advertisement revenue to be allocated to the various music providers in the proportion of their music used . Registrar of Copyrights directed to grant to the Complainants separate licences for communicating the work recorded in sound recordings in the repertoire, present and future, of the Respondent to the public by broadcast on revenue sharing basis subject to the conditions that 2 per cent of net advertisement earnings of each FM radio station accruing from the radio business only for that radio station shall be set apart by each complainant for pro rata distribution of compensation to all music providers including the Respondent herein in proportion to the music provided by the respective music providers and broadcast by the complainant. Complainant shall be deemed to be a music provider for the music provided by it or received by it free of cost and broadcast. For arriving at "net advertisement earnings", all Government and municipal taxes paid, if any, and commission paid towards the procurement of such advertisements to the extent of 15 per cent of such advertisement earnings shall be excluded.