SUPREME COURT

• CRIMINAL LAWS

Ms. Mayawati Vs. Union of India (UOI) and Ors. (Decided on 06.07.2012) MANU/SC/0527/2012

Jurisdiction - Whether FIR lodged Under Section 13(2) read with Section 13 of the Prevention of Corruption Act, 1988 to investigate into the matter of alleged disproportionate assets is beyond the scope of the directions passed by this Court in the order dated 18.09.2003 titled M.C. Mehta v. Union of India and Ors

Held, Court observed that the Court being the ultimate custodian of the fundamental rights did not issue any direction to the CBI/Concerned Authority to conduct a roving inquiry against the assets of the Petitioner commencing from 1995 to 2003 even though the Taj Heritage Corridor Project was conceived only in July, 2002 and an amount of Rs. 17 crores was released in August/September, 2002. The method adopted by the Concerned Authority was unwarranted and without jurisdiction. Also the Concerned Authority had proceeded without proper understanding of various orders which had been passed by this Court.. Further as had already been observed by this Court in the Constitution Bench decision of this Court in Committee for Protection of Democratic Rights, West Bengal wherein this Court observed that only when this Court after considering material on record comes to a conclusion that such material does disclose a prima facie case calling for investigation by the CBI for the alleged offence, an order directing inquiry by the CBI could be passed and that too after giving opportunity of hearing to the affected person. However in the present case, Court was satisfied that there was no such finding or satisfaction recorded by this Court in the matter of disproportionate assets of the Petitioner on the basis of the status report and, in fact, the Petitioner was not a party before this Court in the case in question. Hence, it could be concluded that there could not have been any material before this Court about the disproportionate assets case of the Petitioner beyond the Taj Corridor Project case and there was no such question or issue about disproportionate assets of the Petitioner. In view of the same, giving any direction to lodge FIR relating to disproportionate assets case did not arise. Writ Petition allowed

• ELECTION LAWS

Ponnala Lakshmaiah Vs. Kommuri Pratap Reddy and Ors. (Decided on 06.07.2012) MANU/SC/0529/2012

Dismissal of Election Petition - Challenge thereto - Whether the High Court was right in holding that the election Petition filed by Respondent No. 1 against the Appellant who happens to be the successful candidate in the election to the 98-Jangaon Assembly Constituency in the State of Andhra Pradesh, disclosed a cause of action and could not therefore be dismissed at the threshold

Held, In the absence of any provision making breach of the proviso to Section 83(1) of the Representation of the People Act,1951, a valid ground of dismissal of an election Petition at the threshold, Court saw no reason why the requirement of filing an affidavit in a given format should be exalted by a judicial interpretation to the status of a statutory mandate. A Petition that raised triable issues need not, therefore, be dismissed simply because the affidavit filed by the Petitioner was not in a given format ,no matter the deficiency in the format had not caused any prejudice to the successful candidate and could be cured by the election Petitioner by filing a proper affidavit. Therefore, the Appeal failed and was dismissed.

• EDUCATION LAWS

Medical Council of India Vs. Rama Medical College Hospital and Research Centre, Kanpur and Anr (Decided on 04.07.2012) MANU/SC/0512/2012

Interpretation of provision - Present Petition filed by the petitioner has sought interpretation of Sections 10A and 11 of the Indian Medical Council Act,1956

Held, The position was quite clear that in terms of the scheme of the Act and the Regulations framed by the Medical Council of India, it was the Central Government which was empowered to grant recognition to a medical college or institution on the recommendation made by the Medical Council of India. The role of the Medical Council of India in the grant of recognition to a medical college/institution was recommendatory and the Council had no power to grant recognition to a medical institution. Such power lay with the Central government. Further, no provision was available under the Act relating to grant of recognition of a medical college/institution, since Section 10A speaks only of permission and not recognition. The same had been supplemented by the provisions of the 1999 and 2000 Regulations for the purpose of Section 10A(7) (g) of the Act. Therefore, the position was quite clear that the recognition referred to in Sections 10B and 11 of the 1956 Act would have to relate to the grant of recognition to a medical institution Under Section 11 for the purpose of recognition of its qualifications as a medical degree, which would entitle the holder thereof to practice medicine.

• CRIMINAL LAWS

O.M. Baby (Dead) by L.Rs Vs. State of Kerala (Decided on 03.07.2012) MANU/SC/0525/2012

Conviction - Challenge thereto - Present Appeal filed against the order of High Court wherein it convicted the Appellant for offences under Sections 376,506 and 342 of the Indian Penal Code,1860(IPC)

Held, Not only corroboration in the form of external injuries was available in the present case, even otherwise i.e. in the absence of corroboration the testimony of the victim could not be ignored, unless the inconsistencies or contradictions were sufficiently serious to warrant such a course of action. It had already been observed that inconsistencies in the statement of witness were on minor aspects which did not affect the core of the case. Further, while appreciating the evidence of the prosecutrix, the Court must keep in mind that in the context of the values prevailing in the country, particularly in rural India, it would be unusual for a woman to come up with a false story of being a victim of sexual assault so as to implicate an innocent person. Therefore, the Appeal is dismissed.

HIGH COURTS

• SERVICE LAWS

DELHI HIGH COURT

Union of India & Anr. Vs. B.A. Dhayalan (Decided on 02.07.2012) MANU/DE/2911/2012

Entitlement for promotion - Present Petition filed against order passed by Central Administrative Tribunal (Tribunal) quashing the charge-sheets as well as the subsequent proceedings initiated against the Respondents and directing the Petitioners to open the sealed cover and in case he is found to be fit, then as per recommendations of the Competent Authority, to promote him with all consequential benefits

Held, It was clear that the Tribunal had considered the charges in detail and also weighed the implications of the allegation imputed against the Respondent and ultimately found that the charges could at best amount to procedural inadequacies and were not involving any accusations of moral turpitude or mala fides. During the course of the argument, Petitioner's Counsel had time and again emphasized that the proper procedure had not been followed by the Respondent, however no allegations were made that the Respondents had embezzled or misappropriate any amount to himself. If indeed the allegations were only pertaining to the procedural manner in which the Respondent had carried out his functions, which were also in consonance with the normal practice prevalent in the department at that time, then the delay in ascertaining the same was also not justified. Since as per the Petitioner's Counsel, the procedure had been clearly laid down in the instruction of the Government of India, its compliance could have been easily detected and in case of any dereliction, the Respondent could have been punished for the same immediately. Further, the allegations were not so complex so as to justify the inordinate delay in the matter, which in any case had not been explained by the Petitioners. Therefore, there was no ground on which the order passed by the Tribunal was liable to be interfered with. Writ Petition dismissed.

• INSURANCE LAWS

M/s. Jalpac India Ltd Vs. United India Insurance Company Limited (Decided on 02.07.2012) MANU/DE/2912/2012

Entitlement for Insurance amount - Present Petition filed by the Petitioner has sought quashing of the letter issued by the Respondent, partially repudiating the claim of the Petitioner under the Marine Policy

Held, The pleas which were not taken by the Respondent while repudiating the claim of the Petitioner could not be allowed to be taken later on by the Respondent. If the contract between the Petitioner and the foreign seller was a wagering contract or if the Petitioner did not have insurable interest, the Respondent ought to have not even allowed part of the claim to the Petitioner. Therefore, in the totality of facts and circumstances, the Respondent was unable to raise any disputed questions of fact as far as their liability was concerned, which could not be denied and the Respondent was therefore liable to pay the amount to the Petitioner after deducting the amounts, if any, already paid by the Respondent to the Petitioner. Petition partly allowed.

• DIRECT TAXATION LAWS

BOMBAY HIGH COURT

The Commissioner of Income Tax Vs. The Bardez Bazar Consumer Coop. Society Ltd (Decided on 25.06.2012) MANU/MH/0810/2012

Exemption from tax - Challenge thereto - Present Appeal filed against order of Tribunal wherein it held that principle of mutuality applies and that the income earned from the members is liable to be exempt from tax

Held, It was observed that the Tribunal had misconstrued the principles laid down by the Apex Court in C.I.T v. Bankipur Club Ltd. . A true interpretation of the principles relating to the doctrine of mutuality laid down in the case and application of the tests laid down by this Court in Sind Coop. Hsg. Society v. Income Tax Officer would certainly lead to the conclusion that the Respondent/Assessee was involved in commerciality and that from the moneys received from the members, services were offered to members and non-members, in the nature of profit sharing by the members and not for the purposes of any conveniences to the members. The amount which comes to the society was distributed amongst the members as dividend. Therefore, the doctrine of mutuality cannot be applied to the Respondent/Assessee. Appeals allowed

• EXCISE LAWS

BOMBAY HIGH COURT

The Commissioner of Central Excise Vs. M/s. Castrol India Ltd (Decided on 25.06.2012) MANU/MH/0814/2012

Whether the CESTAT was justified in directing the Assessee to pay 25% of the penalty levied under Section 11AC of the Central Excise Act,1944 (Act) within 30 days from the date of communication of the order passed by the Tribunal, when the first and second proviso to Section 11AC specifically provide that the benefit of reduced penalty at 25% shall be available only if the duty determined under Section 11A(2), interest payable thereon under Section 11AB and penalty at 25% of the duty determined under Section 11A(2) of the Act has been paid within thirty days from the date of communication of the order of the Central Excise Officer determining duty payable under Section 11A(2) of the 1944 Act ?

Held, In the present case, the applicability of Section 11AC of the Act was not in dispute. It was also not in dispute that the Assessee had paid the duty sought to be evaded as also the interest payable thereon under Section 11AB before the passing of the adjudication order. Admittedly, the Assessee had not paid 25% of the penalty imposed under Section 11AC of Act within thirty days from the date of the communication of the order of Central Excise Officer/Concerned Authority determining the duty sought to be evaded under Section 11A(2) of the Act which was the mandatory requirement under Section 11AC. Instead of paying 25% of the penalty within the stipulated time, the Assessee had chosen to file an Appeal against imposition of penalty under Section 11AC and the Tribunal permitted the Assessee to pay 25% penalty beyond the time prescribed under the proviso to Section 11AC which was not permissible in law. Hence, the substantial question of law framed was answered in the negative i.e. in favour of the Revenue and against the Assessee.

TRIBUNALS

• INTELLECTUAL PROPERTY LAWS

Intellectual Property Appellate Board

M/se. Cipla Ltd Vs. Mr. Rajiv Sukhija (Decided on 25.06.2012) MANU/IC/0088/2012

Rectification of trademark - Present Application filed before Tribunal for rectification of the trade mark "CLAVMOX" under the provisions of the Trade Marks Act, 1999 (Act)

Held, In the present case, only issue was whether the impugned trade mark could continue to remain on the register when already a mark was on the register. Also, the officer concerned ought not to have granted registration when an identical trade mark was pending registration. The impugned trade mark was an entry wrongly made. Impugned trade mark therefore ought to be removed for an entry wrongly made. The other reference was that the Applicant's mark was not put to use on the date of Application of registration of the impugned trade mark. The impugned trade mark when said to be wrongly made, the conduct of the Applicant was immaterial. Further, the Registrar also had the power to rectify the register on his own motion in such case. Therefore, Tribunal was of opinion that the impugned trade mark deserved to be rectified.

• EXCISE LAWS

CESTAT, MUMBAI

Commissioner of Central Excise, Mumbai II Vs. Virtual Computers Pvt Ltd. (Decided on 22.06.2012) MANU/CM/0015/2012

Classification of products - Present Appeal filed wherein the main issue was regarding classification of mother board and add on card

Held, It was observed that the add-on card provided more features by adding circuit connected to the motherboard using peripherals component inter-connected. Motherboard was the central printed circuit board of the computer and held many of the crucial components of the system providing connectors for other peripherals. It was found that the sub-heading 8471 of the Central Excise Tariff covered Automatic data processing machines and units thereof; magnetic or optical readers, machines for transcribing data on to data media in coded form and machines for processing such data, not elsewhere specified or included. Heading 8473 covered Parts and accessories (other than covers, carrying cases and the like) suitable for use solely or principally with machines of heading Nos. 8469 to 84.72 of the Tariff. Therefore, the add-on card and motherboard could not be considered as automatic data processing machines. The same were parts and accessories suitable for use with the machine falling under Heading 84.72 of the Tariff. Hence, as the goods in question were parts and accessories of the data processing machine falling under Heading 84.71 of the Tariff, therefore being parts and accessories were classifiable under Heading 8473 of the Tariff. Appeal allowed.