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[No.128]
July 20,
2005 |
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Supreme
Court |
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Shanti Prasad
Devi and Anr. Vs. Shankar Mahto and Ors.
MANU/SC/0404/2005
Agreeing with the
High Court and the first Appellate Court the Supreme Court said that on expiry
of period of lease, mere acceptance of rent for the subsequent months in which
the lessee continued to occupy the lease premises could not be said to be a
conduct signifying 'assent' to the continuance of the lessee even after expiry
of lease period.
The appellant
obtained possession on lease of the suit premises under a registered lease deed
for fifteen years. Clauses Nos. (7) & (9) gave option of renewal for a
further period before the expiry of the initial period. After the period of
lease expired on 19.7.1977 the lessee continued to remit the rent till August
19, 1977. On 23.8.1977 the lessee sent a lawyer's notice exercising his option
under clause (7) and seeking renewal of the lease. The lessee thereafter
remitted monthly rent for three months from March to May 1978. The lessor
accepted the rent. The option for renewal exercised was, therefore, contrary to
terms of clause (9) of the lease agreement. The lessee, in the above
circumstances, could not claim that he was 'holding over' as a lessee within the
meaning of Section 116 of the Transfer of Property Act. As far as the cross
suits for specific performance of agreement of renewal of lease filed by the
lessee is concerned, there are concurrent findings of all the courts that the
option for renewal was exercised after the expiry of the lease period.
MANU/SC/0408/2005
An appeal, by
special leave, had been filed against the judgment and order of the High Court
by which the writ petition preferred by the appellant challenging the award of
Industrial Tribunal-cum-Labour Court, directing reinstatement of the respondent
with continuity of service and 50% back wages was dismissed.
The Apex Court
upheld reinstatement of the respondent with continuity of service but set aside
the award regarding payment of 50% back wages. The Court opined that in view of
the requirements of Section 25-F of the Industrial Disputes Act, 1947, if a
workman had worked for 240 days in a period of twelve months, it was not
necessary that he should have been in service of employer for one complete year.
The Tribunal having recorded a finding that the respondent had worked for 264
days and the same having not been challenged in the Labour Court, the provisions
of Section 25-F were applicable, and thus the termination of service was
invalid. Answering the second question, the Court said that there was no rule of
thumb that entire back wages should be awarded. One of the important factors,
which have to be taken into consideration, was the length of service rendered to
the employer. Where the total length of service rendered by a workman was very
small, as in the instant case, the award of back wages for the complete period,
i.e., from the date of termination till the date of the award, would be wholly
inappropriate.
MANU/SC/0403/2005
In an appeal
preferred by the plaintiffs the only question involved for consideration of the
Apex Court was whether the trial court and the High Court were right in holding
that the plaint under Order VII Rule 11 of the Code of Civil Procedure was
liable to rejection. The High Court by the impugned order reversed the order of
the first appellate court and upheld that of the trial court. The court said
that it was clear that the foundation of the suit was that the registered sale
deed dated 5.5.1953 was, in fact, only a loan transaction executed to secure the
amount borrowed by the plaintiff's predecessor. Relief of reconveyance of
property under alleged oral agreement on return of loan has been deliberately
omitted from the relief clause. The court held that, the plaint was liable for
rejection, if not on the ground that it does not disclose 'cause of action', on
the ground that from the averments in the plaint, the suit is apparently barred
by law within the meaning of Clause (d) of Order VII, Rule 11 of Code of Civil
Procedure. The court relied on the decision of the court in T. Arvindam v. T.V.
Satyapal, wherein it was held that court must remember that if on a meaningful
reading of the plaint it is manifestly vexatious and meritless in the sense of
not disclosing a clear right to sue, it should exercise its power under Order
VII, Rule 11 CPC taking care to see that the ground mentioned therein is
fulfilled. The trial courts would insist imperatively on examining the party at
the first hearing so that bogus litigation can be shot down at the earliest
stage. The court also imposed a further cost in the sum of Rs. 10,000 on the
appellant to be paid to the respondents for prosecuting and prolonging
litigation up to this Court in a hopelessly barred suit.
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High Courts & Tribunal |
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Delhi
Jaipur -II
In this case, the
refund claim was made by appellants on account of the decision of Supreme Court
in the case of Baroda Electric Meters Ltd. The contention of the appellants was
that the computation of time limit should be made from the date of judgment and
therefore Sec11 B would not be applicable. However the claim was rejected by the
Assistant Commissioner on merit and on the ground of time bar.
There was no force
in the appellants submissions that time limit will be computed from the time the
judgment was pronounced by Supreme Court as there is no such provision in
Section 11 B of the Act. The Apex Court held that the Custom Authorities under
the Act are bound by the period of limitation provided under Section 27(1) of
the Customs Act, 1962
Tamil Nadu State
Consumer Disputes Redressal Commission, Chennai
In this case, the
complainant accused the opposite party of deficiency in service. It was alleged
that the surgery was performed without making the necessary investigation and
observing the procedure .The version of the opposite party was that the patient
was brought to them with a strangulated inguinal hernia for which surgery had to
be performed immediately .The failure of surgery could not be stated as an
instance of negligence or breach of duty. They have exhibited necessary skills
and taken proper care and did not receive any nursing or hospital charges.
It was held that a
high probability is required before professionals like doctors can be
accused of negligence and deficiency in service .So the complaint was dismissed
without cost.
Kerala
A writ petition was
moved before the Hon’ble High Court for directing the State Govt to allow the
use of Loud speakers during night as Govt has power under sub-rule (3) of the
Noise Pollution (Regulation and Control) Rules, 2000 to permit the use of loud
speakers in the night hours on or during any cultural or religious occasion of a
limited duration not exceeding 15 days in all during a calendar year.
It was held that
Govt has power under sub-rule (3) to relax the use of loudspeaker only during
night hours i.e. from 10 p.m. to 12 p.m. and cannot allow its use overnight. It
was further observed that power under Article 226 cannot be used to issue
direction to a statutory authority to act against the statute .
Madhya Pradesh
The petitioner was
admitted to the institute which was affiliated to the Jiwaji University, Gwalior.
However the University refused to conduct the examination on the basis that the
institute was no more affiliated to it.
It was held that
even if university decides not to extend the privileges, it cannot withdraw the
existing privilege of conducting examination without prior consultation with the
Academic Council. Moreover it is not the case of university that there is some
irregularity or illegality in admission, nor is it there a case that training
imparted is contrary to regulations. In the circumstances, the university has not
exercised its discretion in a fair and reasonable manner. Those students who
have already been admitted to the course have a right to seek the holding of the
examination.
Madras
In the present case,
the members of the appellant society were prevented from playing games of Rummy,
Table Tennis, Chess , Carrom Board as the respondent has right to take
appropriate action against illegal games of betting , wagering etc under the
Tamil Nadu Gaming Act, 1930.
It was held that
under the Act, a club is entitled to provide recreational facilities and those
games which are skill based would be covered. However the games which are merely
games of chance would be barred . The above games would be permitted or not
would depend on whether the club is involved in making a profit out of these
games which is a question of fact and hence there cannot be a blanket order
restraining the respondents from interfering in the activities of appellants.
Rajasthan
The present writ
petition was moved for granting injunction so as to stop the telecast of a
serial which was claimed to be defaming a politician , his Chief Minister wife
and family members.
It was held that
right of the makers of the serials is implicit in the right of freedom of speech
and expression and includes the right to express ones conviction and opinion
freely through speech , writing, printing picture or electronic media. A
creative artist is free to project the picture of society or the political
system or the person in politics in the manner he perceives , provided its
display does not affect public order , decency or morality, defamation or
incitement to an offence. Moreover, no specific or special injury is pleaded by
the plaintiff excepting his wild claim that it would create caste tension. Nor
is it proved that it would create irreparable injury to the plaintiff. Moreover,
the creation of a creative artist represents the view of a large number of
people and any restrain on him shall not only affect his right but right of a
large number of people sharing same view. Hence balance of convenience does not
lie in favour of plaintiff.
It was further
observed that in the face of Section 19 of the Cable Television Networks
(Regulation ) Act,1995 the power to prohibit the transmission of the programme
in the public interest is conferred on the authorized officer . Moreover
whenever a special enactment provides for a remedy, the civil court shall be
loath and circumspect in granting injunction by interim order. In the
circumstances the plaintiffs should have first approached the authorized officer
for adjudication.
Karnataka
The question that
arose for adjudication in this case is whether the examination-in-chief of a
witness can be recorded as earlier while after amendment, R 4, O18 of CPC
provides that it has to be on affidavit.
It was observed that
after the amendment of C. P. C., the examination of a witness shall only be on
affidavit. As per rub-rule (2) of R 4, O18 of CPC, the cross examination has to
be taken either by the Court or by the Commissioner appointed by it. Therefore,
it is clear that that examination-in-chief cannot be recorded even if court
appoints a commissioner.
Even if a
commissioner is appointed under O 26 R 4A of CPC, recording of evidence as
contemplated under O 18 R1&2 cannot be by-passed. O18 R 4(1) is mandatory
and is not directory.
The appellant
claimant was working as cleaner in a truck, he got injured during the course of
employment. The accident occurred after the truck was transferred to the
employer/respondent no. 1 but before the certificate of insurance was
transferred, the commissioner awarded compensation to the appellant- claimant
but dismissed the claim against the insurance company saying that insurance
policy was not in force on the date of accident.
As per section 157 of Motor
Vehicle Act, 1988 it is deemed that the policy is transferred to the transferee
on the transfer of the vehicle. The insurance company contended that sec.
157does not help the claimant as this provision is in the chapter XI relating to
third party risk and the claimant is not a third party.
As per sec. 147 of
the Motor Vehicle Act an insurance company cannot escape its liability to pay
compensation to the person or class of persons specified in the policy. The High
Court of Karnataka while allowing the appeal held that the insurance company is
answerable to the claim of appellant-claimant.
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Telecom
Regulatory Authority of India (TRAI)
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Circular No: 303-1/2004-Eco.
Dated 07.07.2005: The Telecom Regulatory Authority of India had issued general
Guidelines to all Access Providers vide letter dated 301-30/2003-TRAI (Eco.)
dated 1st September 2003 as per
which the security deposit after adjustment of dues, if any, is required to be
refunded to subscribers within a time frame of 60 (sixty) days. The service
provider has also to pay an interest @ 10% per annum for any delay in making
refund within the stipulated period. Vide Circular No: 303-1/2004-Eco. Dated
07.07.2005 the authority reaffirms that all the guidelines contained in the
letter dated 1st September 2003 are to be strictly adhered to by all Telecom
Access Providers.
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RBI |
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UBD
Circular No:
UBD.DS.Cir.No.3/13.05.00/2005-06 Dated 13.07.2005: The Reserve Bank of India
vide circular UBD.DS. Cir.No.44/13.05.00/2004-05 dated April 15, 2005 had
advised member banks to fix the prudential exposure limits at 15 per cent and 40
per cent of the 'Capital Funds' in case of single borrower and group of
borrowers respectively. Accordingly, the RBI vide Circular No.
UBD.DS.Cir.No.3/13.05.00/2005-06 Dated 13.07.2005 advises banks that should they
have any difficulty in implementing the revised exposure norms for sanction of
fresh advances owing to the impact of past accumulated losses they should approach
the Reserve Bank explaining the issues involved and with specific proposals for
its consideration.
APDIR (Series)
Circular No.: A. P.
(DIR Series) Circular No. 02 Dated 18.07.2005: The Reserve Bank of India vide
the above circular notifies that the Export-Import Bank of India (Exim Bank) has
concluded an agreement with the Trade and Investment Development Corporation of
the Philippines (TIDCORP) on March 7, 2003 and an Amendatory Credit Line
Agreement dated February 28, 2005. As per the agreement, the EXIM Bank will make
available to TIDCORP a Line of Credit (LOC) upto an aggregate sum of 2 Million
US Dollar with effect from June 10, 2005. The credit is
available for financing capital goods, plant and machinery, consumer durables
and any other items eligible for being exported from India to buyers in
Philippines under the Foreign Trade Policy of the Government of India.
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| Ministry of
Environment and Forests |
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Notification No:
SO943(E) Dated 04.07.2005. The Ministry of Environment and Forests vide
notification No. S.O. 102(E) dated the 1st February, 1989 had notified the
imposition of restrictions on activities in Doon Valley, Uttaranchal except those
permitted by the Central Government for examining the environmental impacts. The
notification had classified industries into three categories; namely, green,
orange and red and also prescribed guidelines for permitting and restricting
industrial units in Doon Valley Area. Accordingly, the Ministry vide
Notification No: SO943(E) Dated 04.07.2005 notifies that all proposals, relating
to development in Doon Valley, Uttaranchal falling in the category of orange
industry shall follow the same procedure as is being followed for the
environment clearance of Industry Sector Projects under Environment Impact
Assessment Notification.
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| Ministry of Finance |
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CBEC Customs
Circular No. :
29/2005 Dated 08.07.2005: The Central Board of Excise and Customs vide the above
circular has issued guidelines regarding re-export of goods imported under DFRC
Scheme (Duty Free Replenishment Certificate) that are found unfit for
consumption. The circular states that in cases where the goods imported under
DFRC Scheme are found defective or unfit for use, the same may be permitted to
be re-exported by the Commissioner of Customs provided the following conditions
are satisfied.
i) Re-export of
goods takes place from the same port from where the goods were imported;
ii) The goods are
re-exported within 6 months from the date of import;
iii) The Assistant
Commissioner/Deputy Commissioner of Customs is satisfied about the identity of
the goods; and
iv) The goods are
not put into use after import.
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| Ministry
of Health and Family Welfare |
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Health
Notification No. :
G.S.R.463(B) Dated 08.07.2005: The Ministry of Health and Family Welfare vide
the above notification notifies the draft Drugs and Cosmetics 7th (Amendment)
Rule, 2005. They shall come into force on the date of their publication in the
Official Gazette. The Drugs and Cosmetics 7th (Amendment) Rule, 2005 would amend
the Drugs and Cosmetics Rules 1 945.
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| International Legal
Cases and News |
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Cases
TENANCY LAW
The US 9th Circuit
Court in the above case held that a landlord can deduct the amount of security
held under a lease with a tenant debtor from the allowable claim for damages
provided the tenant-debtor was bankrupt.
FAMILY LAW
In the above custody
case involving an Indian child, the US 9th Circuit Court held that the federal
court has jurisdiction under 28 U.S.C. section 1331 in conjunction with the
Indian Child Welfare Act and that the court may use the jurisdiction to review
the trial court judgment terminating the plaintiff's parental rights.
FAMILY LAW
The appeal court in
the above case involving the abduction of two minor children held that the trial
court erred when it decided that the two minor children, abducted by their
father in Canada and brought to the United States, could not be returned to
Canada under the International Child Abduction Remedies Act and the Hague
Convention on the Civil Aspects of International and Child Abduction.
CONSUMER PROTECTION
LAW
The Supreme Court of
California in the above consumer protection case ruled that a buyer who resides
in one state could not bring a suit against an automobile manufacturer under
the Song-Beverly Consumer Warranty Act if the vehicle has been purchased by the
buyer in another state.
LABOR &
EMPLOYMENT LAW
In the above labour
and employment case, the appeal court held that an actionable hostile work
environment claim is created under the California Fair Employment and Housing
Act when it is widely spread that a sexual affair is going on between a
supervisor and a female employee at the workplace.
News
US senators have
proposed a bill, which could force millions of illegal immigrants currently
residing in US to leave the country. A bill provides for adoption of a
machine-readable Social Security card system for all US workers to keep illegal
aliens from obtaining jobs, tough fines for companies hiring illegal aliens, and
more Department of Homeland Security employees assigned to pulling illegal
immigrants from the workforce. On an estimate there were 9 millions illegal
immigrants in US in year 2000 and an average of 5 lakh individuals are added to
the number each year.
4.18 billion
class-action lawsuit is being filed against DuPont Company, alleging that the
chemical giant failed to warn the consumers on the dangers of Teflon chemical.
The non-stick Teflon cookware are made from using perfluorooctanoic acid and its
salts, known as PFOA, or C-8. The suit is being filed under the consumer
protection laws and want DuPont to spend $5 billion to replace millions of
people's cookware, impose a Teflon warning label and create two funds to pay for
medical monitoring and more scientific research.
Following the
abolition of the elected Nepalese government, Nepalese minister of General
Administration Krishna Lal Thakali, appointed by King Gayendra, has announced
that Nepal’s Civil Service Act was amended at the Gayendra’s direction to
disallow the formation of Unions by civil servants in Nepal. However certain key
union would be granted special privilege to operate. Civil rights groups and
Union leaders have condemned the amendment as an unfair restriction on the
rights of Nepalese Citizens working for the government.
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