SUPREME COURT

• PROPERTY LAWS

Safiya Bee Vs. Mohd. Vajahath Hussain alias Fasi (Decided on 16.12.2010) MANU/SC/1060/2010

Forceful occupation - Claim of Possession - Act of land grabbing - Adjudication thereof under the provisions of Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 - Whether the High Court was correct in holding that the Appellant's application under Section 7A of the 1982 Act was not maintainable before the Special Tribunal "as the property in dispute was a building with its appurtenant land"

Held, expression 'land' includes "buildings, structures and other things attached to the earth" and therefore grabbing a building attached to the earth amounts to land grabbing for the purposes of this Act. High Court erred in holding that the Act applies to the land but not to the buildings. If a building along with the land on which it stands is the subject matter of the application under Section 7A of the Act, such application is maintainable before the Special Tribunal. Distinction drawn by the High Court between "building with appurtenant land" and "land along with building" artificial and hyper-technical and it defeats the very purpose of the legislation. High Court erred in holding that the application filed by the Appellant was not maintainable before the Special Tribunal . It was specifically alleged that the Respondent forcibly occupied the house and since then he is in the occupation of the said house and open land .In such circumstances, it cannot be said that the subject matter of the dispute was only the building as the subject matter of the dispute was the building and the appurtenant open land . High Court also erred in holding that only occupation of the open land and construction of a building thereon can be treated as land grabbing and that occupation of a building along with open land cannot be treated as land grabbing under the Act. Thus, the application filed by the Appellant under Section 7A of the Act before the Special Tribunal was maintainable and the Special Tribunal had necessary jurisdiction to adjudicate the dispute raised therein.

• CRIMINAL LAWS

Hari Singh and Anr. Vs. State of Uttar Pradesh (Decided on 16.12.2010) MANU/SC/1061/2010

Conviction based on the testimony of eye-witnesses - Sustainability thereof under challenge

Held, business rivalry existed between the accused and the deceased and there were conflicting interests as both the kilns were in close proximity to each other, the accused had been holding out threats to the deceased and it appears that the threat had been carried out on the day in question. As per the evidence on record, the night of the murder was a moonless one but there is no reason to doubt the testimony of the eye witnesses when they say that they had identified the accused in the torch light - Merely because the torch had not been taken into possession by the ASI would not mean that the statements of the eye witnesses were not credible - Medical evidence corroborates the prosecution story

• TENANCY LAWS

Subhash Chand Vs. State of Haryana and Ors. (Decided on 16.12.2010) MANU/SC/1068/2010

Recovery of Rent and ejectment - Whether application filed by mother of the Appellant for ejectment of Respondent No. 4 on the ground of non-payment of rent was rightly dismissed by the Commissioner-

Held, ejectment of a tenant under the Punjab Security of Land Tenures Act, 1953 Act or for recovery of arrears of rent from a tenant, has to be in done under the procedure laid down in Section 14A read with Section 10(2) of the Act - Section 10(2) of the 1953 Act states that under the summary procedure contemplated therein the Assistant Collector is required to give notice to the parties in writing and reasonable opportunity to be heard and he is required to determine the dispute summarily and to keep a memorandum of evidence and a gist of a final order with brief reasons therefore - Hence, the Commissioner was not right in holding that the mother of the Appellant had filed a suit under Section 77(3) of the Punjab Tenancy Act. However, the language of Clause (ii) of Sub-section (1) of Section 9 Punjab Security of Land Tenures Act would show that the tenant is liable to be ejected if he fails to pay rent regularly 'without sufficient cause'. Respondent No. 4 has taken a plea in his suit for declaration of occupancy rights in respect of the land had been decreed in his favour by the Assistant Collector and he was not liable to pay rent for the land as a tenant. - The Respondent No. 4 did not pay rent for the land as he was pursuing his claim of occupancy rights in respect of the land and if his claim was finally allowed he would not be liable for rent - Respondent No. 4 had, therefore, sufficient cause for not paying the rent for the land and was not liable to be evicted under Section 9(1)(ii) of the 1953 Act.

• EXCISE LAWS

Commissioner Central Excise, Delhi Vs. Ace Auto Comp. Ltd. (Decided on 16.12.2010) MANU/SC/1066/2010

Affixation of brand name of another person on goods with an intent to show connection between the products- Exemption and Benefit of Notifications Nos. 1/93-CE and 16/97-CE

Held, in order to avail of the benefit of the exemption notification, the Assessee must establish that his product is not associated with some other person - If it is shown that the Assessee has affixed the brand name of another person on his goods with the intention of indicating a connection between the Assessee's goods and the goods of another person, using such name or mark, then the Assessee would not be entitled to the benefit of exemption notification - If the Assessee is able to satisfy the Adjudicating Authority that there was no such intention, or that the user of the brand name was entirely fortuitous, it would be entitled to the benefit of the exemption - In the instant case, the brand name "TATA" did not belong to the Assessee - It was also evident that by using the said brand name, the Assessee had not only intended to indicate a connection between the goods manufactured by them and a Tata Company; but also the quality of their product as that of a product of Tata Company, as they were supplying their goods to the said company - Thus, the bar created in Clause 4 read with Explanation IX of the Notification clearly attracted in the present case, disentitling the Assessee from the benefit of the exemption notifications under consideration

• MEDIA AND COMMUNICATION LAWS

Centre for Public Interest Litigation and Ors. Vs. The Union of India (UOI) and Ors. (Decided on 16.12.2010) MANU/SC/1074/2010

Appeal against order of Delhi High Court which refused to entertain the writ petition filed for a court monitored investigation by the Central Bureau of Investigation or a Special Investigating Team into '2G Spectrum Scam' for unearthing the role of Shri A. Raja, the then Union Minister for the Department of Telecommunications), senior officers of that department, middlemen, businessmen and others

Held, Division Bench of the High Court committed a serious error by dismissing the writ petition at the threshold ignoring that the issues raised by the Appellants, whose bonafides have not been doubted, are of great public importance. The allegations contained in the writ petition and the affidavits filed before this Court, which are supported not only by the documents produced by them, but also the report of the Central Vigilance Commission, and the findings recorded by the CAG in the Performance Audit Report, need a thorough and impartial investigation. However, at this stage, we do not consider it necessary to appoint a Special Team to investigate what the Appellants have described as 2G Spectrum Scam because the Government of India has, agreed for a Court monitored investigation. The reports produced before the Court shows that the CBI and the Enforcement Directorate have started investigation in the right direction.The progress reports based on the investigations conducted by the CBI and the Enforcement Directorate shall be produced before the Court in sealed envelopes on 10.2.2011.

HIGH COURT

• CONSTITUTIONAL LAWS

Delhi High Court

Namgyal Dolkar Vs. Government of India, Ministry of External Affairs, (Decided on 22.12.2010) MANU/DE/3504/2010

Citizenship by Birth- Born in India to Tibetan parents- Refusal to give Passport- Question of nationality

Held, The policy decision of not granting Indian citizenship by naturalisation under Section 6(1) Citizenship Act to Tibetans who entered India after March 1959 is not relevant in the instant case. Having been born in India after 26th January 1950 and before 1st July 1987, the Petitioner is undoubtedly an Indian citizen by birth in terms of Section 3(1)(a) Citizenship Act. The fact that in the application form for an identity certificate the Petitioner described herself as a Tibetan national will make no difference to this legal position. There cannot be waiver of the right to be recognized as an Indian citizen by birth, a right that is expressly conferred by Section 3 (1) of Citizenship Act. The Petitioner cannot be said to have renounced' her Indian citizenship by birth by stating that she is a Tibetan national. The Petitioner is an Indian citizen by birth. She cannot therefore be denied a passport on the ground that she is not an Indian citizen.

• CRIMINAL LAWS

Delhi High Court

Dushyant Verma Vs. State of NCT of Delhi, (Decided on 21.12.2010) MANU/DE/3501/2010

Interim Bail - Relief sought on the ground of appearance in different examinations to pursue MBA - Whether the grounds on which relief of bail sought admissible

Held, the Petitioner is intentionally taking exams of all institutes knowing full well that he cannot take admission, as all these exams are valid only for regular course. The Petitioner's bail application for undertaking a regular course was dismissed by this Court and this court vide order dated 7th December 2010 had made it clear that the Petitioner cannot take this exam as an excuse for seeking bail or for pursuing regular course despite being a jail inmate. It was observed by this Court that whenever he chooses to study as correspondence student, he may be at liberty to do so. It is learnt by this Court that for undertaking studies in MBA course by correspondence no exam is necessary and only payment of fee is necessary. The Petitioner despite being showing desire to do MBA course since 2009 has not taken admission in any correspondence course rather he made similar applications for taking examination last year and got interim bail for these exams and now this year again he has given a list of various exams which he wants to take for MBA admission and has sought interim bail for these exams. This liberty cannot be given to the applicant/ Petitioner that when regular bail is denied, the Petitioner becomes smart and wants to remain on interim bail on one or the other pretext taking entrance exams of various institutes knowing fully well that unless he was out on bail he could join any of the courses. The application is hereby dismissed.

• RIGHT TO INFORMATION ACT

Delhi Metro Rail Corporation Limited Vs. Sudhir Vohra (Decided on 24.12.2010) MANU/DE/3537/2010

Exemption from disclosure under Section 8(1)(d) of the Right to Information Act, 2005 - Refusal of Delhi Metro Rail Corporation Limited to supply information pertaining to the cantilevered bracket of Metro Pillar No. 67.

Held, The exemption from disclosure sought by the DMRC, with reference to Section 8 (1)(d) of the RTI Act on the ground that it holds the copyright in the design of the Pillar No. 67, is based on an incorrect reading of the said provision. Disclosure of the information, including the design of the cantilevered bracket of Pillar No. 67 in which the DMRC holds the copyright, cannot possibly affect the competitive position of any third party. The Respondent has repeatedly stressed that he is only a professional architect. He does not propose to use the design, which in any event has been acknowledged by the DMRC to be defective. He seeks information for academic purposes and for his study and analysis of the failed design. This seeking of information about a design, the copyright in which is with the DMRC, under the RTI Act, is independent of the rights of DMRC to enforce its copyright in the said design. The DMRC cannot refuse the information sought even if it might involve infringement of its copyright in the design pertaining to the cantilevered bracket of Metro. It must be clarified that whatever copyright the DMRC has in the design in question, it can, in terms of the law governing copyright in this country, seek to protect such right in the manner known to law. Consequently, if any other person chooses to exploit the copyright of the DMRC, without its permission, the DMRC can certainly institute proceedings against such person for infringement in accordance with law.

• LABOUR AND INDUSTRIAL LAWS

Bombay High Court

M.A. Azim Vs. Maharashtra State Road Transport Corporation, through its Works, (Decided on 21.12.2010) MANU/MH/1691/2010

Termination - Challenged on the ground of it being in violation of the provisions of Section 25 of the Industrial Disputes Act

Held, Petitioner has admitted that immediately after the recovery from ailment, he did not report on work. He has not given any explanation for not reporting on duty immediately for recovering from ailment, which was expected from him. From the enquiry filed, it is clear that the charge-sheet notice of enquiry, show cause notice for dismissal was send to the Petitioner by R.P.A.D. at his registered address. Labour Court rightly held that the domestic enquiry was conducted by following proper procedure and therefore, no infirmity can be attributed to the enquiry. The finding recorded by the Presiding Officer, Labour Court are inconsonance with the material / evidence brought on record by the respective parties.

• SERVICE LAWS

Patna High Court

Rita Prasad & ors Vs. The Board of Directors, Nalanda Gramin Bank (Decided on 01.12.2010) MANU/BH/1068/2010

Dismissal from service - Refusal of application to engage a counsel - Whether prejudice caused

Held, the employee was charged with gross mis-conduct involving fraud, misappropriation, embezzlement of account, forgery etc. In that view of the matter, rejection of the employee's application for engagement of a counsel was in clear disregard of the procedure prescribed by the Bank. In view of the position that a clear provision is incorporated in the prescribed procedure, the Chairman of the Bank seriously erred in law by rejecting the employee's representation to be represented by a counsel. By declining permission to engage a legal practitioner, the employee was prejudiced in his defence. He may not have been able to measure up to the requirements of disciplinary proceeding and, therefore, really needed the assistance and support of a legal practitioner. It is for this reason that the framers of the guidelines have advisedly incorporated the guidelines, so that the delinquent employee would not be prejudiced in his defence during the course of enquiry proceedings particularly on account of the gravity of the charges of the nature indicated therein. The orders of the learned disciplinary authority as well as the learned appellate authority are hereby set aside. Let the entire arrears of salary and the post-retirement benefits admissible to the employee be paid to Appellant No.1 which shall carry interest at the rate of 9% from the date(s) the amounts became due till the date of payment.

Kaushal Kumar Verma S/o Late Tulsi Narayan Labh Vs. The State of Bihar through the Commissioner and Secretary, Urban Development and Housing Department (Decided on 21.12.2010) MANU/BH/1050/2010

Sanction and payment of pension and gratuity - Petitioner initially engaged with the State Government, sent on deputation and services were regularized while being on deputation - Superannuation - Terms and conditions of service were not finalised

Pension and gratuity is payable by the State in respect of the employees sent on deputation with the Board taking into the entire period spent in the State Government and the Board on the last salary drawn on the date of superannuation from the Board. The State Government although issued the relevant order in respect of the writ Petitioner of the said case during the pendency of the case and directed for payment of interest at the rate of ten per cent for the delay. Respondents accordingly directed to consider the case of the Petitioner for sanction for payment of pension and gratuity with interest at the rate of 10 % for the delayed payment taking into consideration the period spent by the Petitioner while on deputation with the Respondent-Board expeditiously preferably within a period of three months on receipt/production of the certified copy of the present order.

• MOTOR VEHICLE LAWS

Gauhati High Court

Rabindra Chandra Sutradhar Vs. Smt. Dalia Sutradhar & The National Insurance Company Ltd. Agartala Division, Agartala (Decided on 11.11.2010) MANU/GH/0325/2010

Error of Tribunal in computing income of the Deceased and Enhancement of compensation

Held, It is settled provision that the provision of the Motor Vehicles Act, regarding payment of compensation, has been enacted by the Legislature to give benefit to the sufferer or the dependents of the persons, who dies or sustains injury in vehicular accident. In the present case there was no difficulty in believing that the monthly income of the deceased was Rs.3, 000/- per month, which he used to earn as his fixed monthly income as a carpenter. However in order to grant relief towards future prospect, record must reveal existence of scope for enhancement in the future career of the deceased. In the present case, there is nothing on record to show that the deceased, who read upto Class-VIII and had a fixed income of Rs.3,000/- per month i.e almost Rs.100 per day as a carpenter at the age of 19 years, had any future prospect for increasing his income or salary. There is also no material to find from the record, that the salary of the deceased was likely to be increased in future. Considering the entire aspect of the matter and the fact that the deceased was earning a fixed income of Rs.3,000/- per month as a carpenter, there is no sufficient reason to find that there was any prospect of future advancement in the career of the deceased, resulting increase in his income.

TRIBUNALS AND COMMISSIONS

• CONSUMER LAWS

National Consumer Disputes Redressal Commission

Dr. (Mrs.) V.C. Bendale Vs. Leela Veerajaneyulu (Decided on 16.12.2010)

Death due to wrong prescription of medicines - Revision petition filed against order of Maharashtra State Consumer Disputes Redressal Commission to pay compensation to parents of the deceased child

Held, the Doctor should have examined the child properly to arrive at, even on clinical examination, that he was suffering from Malaria. However, the first prescription betrays complete lack of professional conduct, inasmuch as the prescription does not indicate the age of the child nor does it indicate as to whether he was running fever at the time of examination and whether there were other symptoms from which she could arrive at a proper conclusion that the child was suffering from Malaria. Fever has manifestation e.g. viral, dengue, chikangunia etc. and the doctor should have recorded some details as to why she straightaway diagnosed it to be a case of Malaria. Blood smear tests facilities are now days available in every PHC and health center and she should have asked for a test report before prescribing medicine without that. Doctor did not state a single word with regard to the history of the patient and has gone on to prescribe the medicines in a very routine manner. Doctor's contention that she has diagnosed it to be a case of Malaria is now based on the prescription of Reziz rather than on any clinical history. This by itself constitutes negligence. In Malaria programme, the medicine in issue is not recommended in routine but is prescribed very cautiously with other medicines. The Doctor having not prescribed the proper medicine with proper dosage has failed in her duty as a doctor and the State Commission rightly held her to be negligent.

Himachal Pradesh State consumer Disputes Redressal Commission

Smt. Shakuntala Devi Kashayap Vs. Life Insurance Corporation of India, (Decided on 21.12.2010)

Deliberate misstatement and suppression of material facts while availing insurance policy - Consequences thereof

Held, the contract of insurance is based on the principles of uberrimafides, i.e. the good faith and as such the insured is under obligation to make full disclosure of material facts which may be relevant for the insurer to take into account while deciding whether the proposal should be accepted or not and while making the disclosure of relevant facts, the duty of the insured is to state them correctly and it cannot be diluted. Since the life assured in the present case had breached the principles of uberrimafides in view of the detailed facts stated above and as such there is no illegality in the repudiation of the claim. In the present case, this fact is amply proved from the evidence on record that there was material suppression of facts on the part of insured which was material in the present case for disclosing to the insurance company at the time of taking insurance policy and this suppression was fraudulently made by the policy holder as this was well within the knowledge at the time of taking the policy/making statement in the proposal form. Since in the proposal form, the insured had denied all the questions relating to his state of health/taking the treatment or admission in the hospital and absence from the duty on medical grounds for the last 5 years in Questionnaires and since this fact is clearly evident from the evidence on record that the insured was suffering from, ectopic kidney and spine carries (spine tuberculosis) which are serious diseases and it is also proved from the medical certificate and even from various leave applications and had obtained the policy through fraudulent means by concealing material facts from the respondents.