SUPREME COURT

• EDUCATION LAWS

Modern Dental College and Research Centre and Ors. Vs. State of Madhya Pradesh and Ors. (Decided on 03.04.2012) MANU/SC/0256/2012

Filling up of vacant seats - Method - Whether the unfilled NRI seats are to be transferred to general pool and be shared equally to be filled up on the basis of the Common Entrance Test conducted by the State level Committee /Vyavsayik Pariksha Mandal (VYAPAM) or by the Common Entrance Test conducted by the Association of Private Dental and Medical Colleges (APDMC), so far as the private unaided medical/dental colleges in the Respondent State are concerned

Held, This Court was of the considered view that the principles laid down by larger Benches of this Court, in the matter of filling up of NRI seats were not correctly understood or applied by this Court in R.D. Gardi Medical College v. State of MP and while interpreting Rule 8 of the M.P. Admission Rules, 2008. The finding recorded in R.D. Gardi Medical College that the unfilled seats in NRI quota in unaided professional colleges should be treated as a part of the general pool and be shared equally by the State and the unaided professional colleges goes contrary to the principles laid down by the eleven-Judges Bench in TMA Pai Foundation, Inamdar as well as the judgments rendered by the three Judges Bench in Pai Foundation referred to earlier. The wrong interpretation given by in R.D. Gardi Medical College was seen incorporated in Rule 5 of the Madhya Pradesh Private Medical and Dental Under Graduate Course Entrance Examination Rules 2011 as well, which could not be legally sustained. Therefore, Court has allowed both the Applications and overrule the direction given in R.D. Gardi Medical College and hold that it is open to the unaided professional educational institutions to fill up unfilled NRI seats for the year 2012-13 and for the succeeding years through the entrance test conducted by them till the disposal of the Appeal subject to the conditions laid down in Inamdar strictly on the basis of merits.

• TENANCY LAWS

Kesri Commissariat and Ors. Vs. Ministry of Food and Civil Supplies, Government of Maharashtra, Mumbai and Anr. (Decided on 03.04.2012) MANU/SC/0257/2012

Non-obstante clause - Applicability of - Whether the non-obstante clause of the Maharashtra Rent Control Act, 1999 applies to any premises held by the Insurance Company who was a tenant/ subtenant?

Held, The Court observed that it was graphically clear that Insurance Company was not protected under the 1999 Act. Once it was held that Defendant No. 1, the New India Assurance Company, the original tenant, was not protected, the question would be whether a subtenant can be protected under the Act. In the case of Bhatia Co-operative Housing Society Ltd v. D.C Patel, it has been clearly laid down that Section 4(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947applies to premises and not to parties or their relationship. Section 3 uses the term 'premises'. The provision commences with the non-obstante clause that the Act does not apply to any premises belonging to the Government or a local authority. Sub-Section 3(1)(b) makes it clear that the Act does not apply to any bank, public sector undertaking or certain other categories of tenants. The Insurance Company is covered under Section 3(1)(b). Thus, as a logical corollary, the Act does not apply to the premises held by the Insurance Company who was a tenant. The Single Judge had allowed protection to the Government Department on the foundation that it had become a tenant. Hence this Court was disposed to think that the analysis was fundamentally erroneous. When the Act did not cover the tenant, namely, the Insurance Company as basically the exemption applied only to premises and not to any relationship, the subtenant who becomes a deemed tenant could not enjoy a better protection or privilege by ostracizing the concept of premises which was the spine of the provision. In the ultimate analysis, this Court was obliged to allow the Appeals, set aside the order passed by the High Court and restore that of the Appellate Court.

• ENVIRONMENT LAWS

State of Kerala and Anr. Vs. P.V. Mathew (Dead) by L.Rs. (Decided on 02.04.2012) MANU/SC/0255/2012

Transportation of Ivory - Challenge thereto - Present Appeal filed against the order passed by the High Court wherein it found that the vehicle of the Respondents which was used for illegally transporting ivory collected from the forest cannot be confiscated invoking power Under Section 61A of the Kerala Forest Act, 1961 because ivory is not a "forest produce" coming Under Section 2(b) of the Act and no forest offence can be said to have been committed in respect of ivory.

Held, In the instant case, neither any property was seized from the car nor had any seizure taken effect as provided under Sub-section (1) of Section 52. Inasmuch as seizure under Section 52 of the Act had not taken place and no forest offence in respect of a "forest produce" was shown to had been committed or established in the case, there was absolutely no justification for the seizure and the order of confiscation of the aforesaid car was beyond the jurisdiction of the authorized officer. These aspects had been rightly considered by the District Court as well as the High Court and this Court was in entire agreement with the same. In as much as the provisions of the Wild Life (Protection) Act, 1972 take care of wild animals skins, tusks, horns, bones, honey, wax and other parts or produce of animals in the absence of specific charge under the said Act, the Authorized Officer was not justified in ordering confiscation of the vehicle. The definition of "forest produce" in the Act under Section 2(f) did not take ivory in its purview. The presumption under Section 69 of the Act applied only to the "Forest Produce" so even if Section 61A of the Act takes in its fold 'ivory' as one of the items liable to be confiscated the presumption under Section 69 of the Act would not be available to the Government as it was not a "forest produce". Appeal dismissed

• CIVIL LAWS

Ramesh kumar Agarwal Vs. Rajmala Exports Pvt. Ltd. and Ors (Decided on 30.03.2012) MANU/SC/0252/2012

Amendment in Plaint - Present Appeal filed against judgment and order of High Court in Chamber Summons whereby the High Court disposed of the Appeal by partly allowing Chamber Summons filed by Respondent No.1 for amendment in plaint

Held, It was clear that while deciding the application for amendment ordinarily the Court must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide and dishonest amendments. The purpose and object of Order 6 Rule 17 of the Civil Procedure Code,1908 (CPC) is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Amendment could not be claimed as a matter of right and under all circumstances, but the Courts while deciding such prayers should not adopt a hyper-technical approach. Liberal approach should be the general rule particularly, in cases where the other side could be compensated with costs. Normally, amendments were allowed in the pleadings to avoid multiplicity of litigations. In the instant case, the amendment Applications came to be filed immediately after filing of the suit(suit came to be filed in 2007 and amendment Application in 2008) i.e before the commencement of the trial and taking note of the fact that the Single Judge confined the relief only to a certain extent and also that in the proposed amendment the Plaintiff wanted to explain how the money was paid though necessary amendments in the form of foundation had already been laid in the original plaint. Thus this Court held by this process Plaintiff was not altering the cause of action and in any way prejudice Defendants. By the present amendment, Plaintiff furnished more details about the mode of payment of consideration. Hence, there was no inconsistency and the amendment sought for was not barred by limitation. Appeal dismissed

HIGH COURTS

• LAND ACQUISITION LAWS

BOMBAY HIGH COURT

Pravin Kashinath Bhagat and Ors. Vs. The Collector and Ors. (Decided on 04.04.2012) MANU/MH/0445/2012

Acquisition - Challenge thereto - Present Petition filed wherein Petitioners have challenged notifications under Sections 32 and 33 of the Maharashtra Industrial Development Act, 1961 and Sections 11 and 13 of the Maharashtra State Resettlement and Rehabilitation Act, 1999 for a power project to be put up by Respondent No. 7 and one Reliance Industries

Held, the only aspect which demonstrates a breach of any of the provisions of law is the utilization of the coastal area admittedly under mangroves and so shown in the Google map though not specifically stated not to have been at site in the Technical feasibility report. Court would like to mention that merely because power plant of Respondent No.7 required accessibility through Amba river meeting the sea for obtaining raw materials, more specially the coal for running the power plant, the coastal land acquired for Respondent No.7 could not be used against the provisions of any such law. Such acquisition could not therefore permit construction whatsoever on the coastal land under mangroves. Further, the construction activities for the structures for intake of any cooling water or discharge of treated waste water of the power plant could not be allowed to be done in the land of the mangroves. However, this Court would like to mention that there were two areas of land - not under mangroves but shown as mudflats. The jetties or any other construction of cooling towers might be put up there leaving the mangroves untouched and untrammeled.

• INTELLECTUAL PROPERTY LAWS

Medical Technologies Limited, A Company Incorporated Under The Companies Act, 1956 Vs. Neon Laboratories Limited, A Company Incorporated Under The Companies Act, 1956, The Deputy Registrar and The Registrar of Trade Marks (Decided on 03.04.2012) MANU/MH/0428/2012

Rectification - Present writ Petition filed against order passed by the Intellectual Property Appellate Board whereby the Petitioner's rectification Application seeking expunction of entry made in the register of Trade Marks of the trade mark "ROFOL" registered in the name of Respondent No.1 came to be dismissed

Held, The Court observed that the Petitioner who had applied for rectification has to prove that Respondent has not used the trade mark "ROFOL" for a continuous period of atleast five years and one month prior to the date of the Application. In the instant case, Board has rightly held that this condition had not been proved by the Petitioner and in absence thereof, establishing the third condition by the proprietor of the trade mark did not arise. In these circumstances, findings recorded by the Board were sustainable in law. Petition dismissed.

• MOTOR VEHICLES LAWS

Mumbai Auto Rickshawmens Union Vs. The State of Maharashtra (Decided on 31.03.2012) MANU/MH/0429/2012

Issuance of Notification - Challenge thereto - Present Petition filed wherein the Petitioner's had grievance whereby State Government has introduced a policy by which Motor Vehicles Act, 1988 was amended and the policy of placing electronic digital fare meters was ordered to be installed in the auto rickshaws plying in the city of Mumbai as well as the State of Maharashtra

Held, the Court has observed that no fault could be found with the State Government in issuing the notification in question by which electronic digital meters were ordered to be installed so far as the city of rickshaws in the city of Mumbai in general and State of Maharashtra in particular were concerned. The State Government has applied its mind in proper perspective as different dates had been fixed in a phased manner for implementing the same citywise in the State of Maharashtra. It was required to be noted that there was no statutory requirement for constituting the Committee. Still in order to remove the heart burning on the part of someone who might have a feeling that the same might not be advantageous for their business if electronic digital meters were to be installed, the State Government has organised the meeting from time to time. The objection if received had been taken into consideration. Thus, the State Government was entitled to issue such notification which was within their legislative competence.

• LABOUR AND INDUSTRIAL LAWS

DELHI HIGH COURT

Divyash Pandit Vs. The Management of National Council for Cement and Building Materials (Decided on 29.03.2012) MANU/DE/1320/2012

'Workman' - Interpretation of - Whether the Appellant, who was an engineering graduate falls within the definition of "workman" provided under Industrial Disputes Act, 1947

Held, The Appellant was an engineering graduate. Considering the nature of the work which the Appellant was performing, it could not be said that he was doing any manual, unskilled, skilled, technical, operational or clerical work within the meaning of Section 2(s) of the Industrial Disputes Act, 1947. The very nature of scientific research, which the Appellant was carrying out, ran counter to his being a manual, unskilled, skilled, technical, operational or clerical worker within the meaning of Section 2(s) of the Act. Therefore, this Court failed to appreciate how a scientist, who was a qualified engineering graduate and was engaged in research work as well as supervising the work of other employees could be said to be a "workman" when a teacher has been held not to be a "workman".

TRIBUNALS

• DIRECT TAXATION LAWS

ITAT MUMBAI

Dy. Commissioner of Income-tax Vs. Femstex Trading Coany Pvt. Ltd. (Decided on 28.03.2012) MANU/IU/0369/2012

Disallowance - Deletion of - Whether the Commissioner of Income Tax (Appeals) erred in deleting the disallowance made by the Assessing Officer on account of rebate claimed of Rs.1,04,45,533 without appreciating facts and circumstances of the case and law

Held, Court has held that the Counsel took them through the paper book as well as the Circular. It was further submitted that as per the RBI guidelines the Assessee as an exporter could write off 10% of the value. However, this Court found no force in the submission of the Counsel. As per the evidence on record the bankers had also accepted the request of Assessee and required evidence was on record. In this Court's opinion the rejection made by Assessing Officer was merely on surmise and had no basis. Hence, there was no reason to interfere with the order of CIT(A).

Whether on facts and circumstances the CIT(A) erred in deleting the addition made by the Assessing Officer on account of bank interest amounting to Rs.3,74,987 debited in profit and loss account

Held, As per the working shown in the assessment order itself which was in the form of reconciliation itself only on the net figure was taken on the profit and loss account. The action of the Assessing Officer was totally arbitrary in denying the claim of Assessee. Hence, order of CIT(A) was not liable to be interfered with.

Income-tax Officer Vs. Handy Tells Private Limited and Handy Tells Private Limited Vs. Income-tax Officer (Decided on 28.03.2012) MANU/IU/0366/2012

Deduction - Present Appeal filed against the order of Commissioner of Income Tax (Appeals) wherein it directed the Assessing Officer to verify whether the Assessee has employed 10 employees or not and if Assessee has accepted 10 employees or more then deduction under Section 80IB of the Income Tax Act,1961 should be granted

Held, Court has observed that Assessee was using aluminium and brass metal sheets for making the displays scroll advertisement unit. There was a process involved like cutting of pieces to size, manufacturing of advertising scrolling display playboards by drilling holes, fixing the lights inside box. Electrical motors were installed whereby the principle advertisement material was displayed. In this Court's opinion there was no different commercial commodity. Therefore, examining the process involved in making of the display of signboards this Court held that the Assessee was involved in the manufacturing activity. Such activity was being carried out by employing outside workers on job work basis who were working under the direct control and supervision of the Company.