SUPREME COURT

• CONSTITUTIONAL LAWS

H.P. Public Service Commission v. Mukesh Thakur & Anr. (Decided on 25.05.2010) MANU/SC/0401/2010

Judicial Service Examination - Discrepencies and inconsitency in question paper - Interference by Court - Regulations 6(i) and 6(ii) of HImachal Pradesh Judicial Services Regulations, 2005 - Whether it is permissible for the Court to take the task of Examiner/Selection Board upon itself and examine discrepancies and inconsistencies in the questions paper and valuation thereof?

Held, it was not permissible for the High Court to examine the question paper and answer sheets itself, particularly, when the Commission had assessed the inter-se merit of the candidates. If there was a discrepancy in framing the question or evaluation of the answer, it could be for all the candidates appearing for the examination and not for Respondent No.1 only. It is a matter of chance that the High Court was examining the answer sheets relating to law. Had it been other subjects like physics, chemistry and mathematics, we are unable to understand as to whether such a course could have been adopted by the High Court.

Judicial Service Examination - Disqualification for Interveiw - Rights thereof - Whether Court has the power to pass a general order restraining the persons aggrieved to approach the court by filing a writ petition on any ground and depriving them from their constitutional rights to approach the court, particularly, when some other candidates had secured the same marks, i.e., 89 and stood disqualified for being called for interview but could not approach the Court?

Held, High Court directed that,"in future, under the above referred circumstances no other petition on same and similar grounds shall be entertained by this Court." Such a direction has been passed apparently in view of the fact that fresh selection proceedings had commenced for the subsequent year. Thus, in such circumstances, it could be possible for the court to reject the same on the ground of delay and laches rather than issuing a direction that no such petition shall be filed particularly, in view of the fact that candidates having roll numbers 1096 and 1476 had also secured 89 marks in the said paper. Candidate having roll number 1096 had secured 462 marks, i.e., more than 50 per cent in aggregate. Therefore, depriving him only on the ground that he could not approach the court cannot be justified, particularly in view of the fact that Court has competence to grant equitable relief to persons even if they are not before the Court.

Judicial Service Excamination - Re-evaluation of Answer sheet - Whether in absence of any statutory provision for revaluation, the court could direct for revaluation?

Held, issue of re-evaluation of answer book is no more res integra. This issue was considered at length by this Court in Maharashtra State Board of Secondary and Higher Secondary Education & Anr. Vs. Paritosh Bhupesh Kurmarsheth etc. wherein this Court rejected the contention that in absence of provision for re-evaluation, a direction to this effect can be issued by the Court. In the instant case, undoubtedly, the High Court issued direction for revaluation and the Respondent No.1 secured 119 marks in revaluation, making him eligible to be called for interview and further for appointment, in case, he succeeds in interview. Law on the subject emerges to the effect that in absence of any provision under the Statute or Statutory Rules/Regulations, the Court should not generally direct revaluation. The facts and circumstances of the case, warrant review of the judgment and order of the High Court. The appeals are allowed.

• CIVIL LAWS

K' A Judicial Officer v. Registrar General, High Court of A.P. (Decided on 24.05.2010) MANU/SC/0406/2010

Expunging the remarks of High Court - Whether in exercise of the Appellate/Revisional jurisdiction qua the Orders/Judgments of Courts subordinate to it, the High Court should make disparaging remarks/comments casting aspersions on the credibility of the Judicial Officer?

Held, Bench of three-Judges in Ishwari Prasad Misra v. Mohd. Isa (1963) 3 SCR 722, stressed the need to adopt utmost judicial restraint against using strong language and imputation of corrupt motives against lower judiciary by observing that in such matters, the concerned Judge has no remedy in law to vindicate his position - The use of the words `out of sheer arrogance nd disrespect to the lawful order' and the expression `judicial uthoritarianism' in paragraph 10 shows that the Division Bench ignored the ords of caution administered by this Court in several judgments including hose referred to hereinabove and castigated the Apellant without any ustification. The observations and remarks made by the Division Bench of the High Court are bound to adversely affect the image of the appellant in the eyes of the public, his credibility as a judicial officer and also affects his career. We are sure that if the Division Bench of the High Court had kept in view the judgments of this Court, it would not have made disparaging remarks against the appellant, which, in the facts and circumstances of the case, were not at all called for. In the result, the appeal is allowed.

• SERVICE LAWS

Punjab & Haryana High Court at Chandigarh v. Megh Raj Garg and another (Decided on 20.05.2010) MANU/SC/0405/2010

Amendment in Date of Birth - Change of date of birth in Service Book - Rejected thereof - Whether the decision taken by the Syndicate of the Panjab University to entertain and accept the application made by Respondent No.1 Megh Raj Garg for changing the date of birth recorded in his matriculation certificate was binding on the State Government and the High Court of Punjab and Haryana (hereinafter described as `the appellant') and whether the suit filed by Respondent No.1 for ordaining correction of the date of birth recorded in his service book was maintainable?

Held, An analysis of chapter II of Punjab Civil Service Rules makes it clear that the declaration of age made at the time of or for the purpose of entry into government service is conclusive and binding on the government servant. The only exception to this is that the government servant can make an application for correction of age within two years from the date of entry into service. Suit filed by Respondent No.1 for correction of the date of birth recorded in his service book after twelve years of his joining the service was clearly misconceived and the Trial Court committed a serious error by passing a decree in favour of Respondent No.1 and the lower Appellate Court and the High Court repeated the same error by refusing to set aside the decree passed by the Trial Court. The learned lower Appellate Court and the High Court also committed an error by relying upon the amendment made in the rule by notification dated 21st June, 1994 which enabled the government servant to seek correction of date of birth within next two years. In the result, the appeal is allowed.

HIGH COURT

• CONSTITUTIONAL LAWS

DELHI HIGH COURT

Agya kaur & Ors. v. Govt. of N.C.T. of delhi & Ors. (Decided on 20.05.2010) MANU/DE/1075/2010

Society as State under Article 12 of Constitution of India - Termination of services - Employer school run by Society having Police family members - Whether society run by Police family members is a State under Constitution of India?

Held, that the Society is registered under the Societies Registration Act, 1860 and has the family members of the Police Officials as its members and their welfare as its objective. Merely the fact that the members of the Society are Government servants or family members of the Government servants would not give the colour of a State to the Society. Writ Petition dismissed.

MADRAS HIGH COURT

M. Balaguru v. The Commissioner of Police and Ors. (Decided on 12.05.2010) MANU/TN/0460/2010

Compensation for loss due to cancellation of permission to conduct public meetings - Whether the police authorities are right in canceling the permission granted to conduct public meeting at the last moment and Whether the petitioner is entitled to claim compensation for alleged loss due to the cancellation of meeting?

Held, that law enforcing authorities are the best judge for meeting a situation prevailing in a particular locality based on which appropriate decision is to be taken either to grant permission to conduct meeting in a particular place and at a particular time. The court has already held that the High Court in writ jurisdiction cannot give positive direction to grant permission to conduct public meeting, even though police refuse to grant permission. It is further held therein that if the administrative authorities feel that by granting permission to conduct meeting it may create a law and order or public order problem, then they may prohibit such activities. The court held that for claiming compensation under public law, one has to satisfy the Court that the authority acted with malice or conscious abuse. In this case the petitioner has not established any malice or conscious abuse of power on the part of the second respondent to claim compensation.

If the police failed to prevent such a meeting and if any damages are caused by the organisers of the meeting against individual persons, then only the State Machinery can be blamed for not taking effective precautionary measures and the State can be ordered to pay compensation to the affected person for not maintaining the law and order properly. That being not the case here, the petitioner is not entitled to get compensation on the ground that due to last minute cancellation he incurred expenses for making arrangements for the meeting.

• TENANCY

MADRAS HIGH COURT

Subhiksha Trading Services Ltd. v. The Commissioner of Police and Ors. (Decided on 12.05.2010) MANU/TN/0461/2010

Eviction on the ground of willful default/owners occupation/for costs of the petition - Ex-parte order of eviction was passed - Forcible eviction of the petitioner from the premises by breaking open the lock with police protection

Held, that the case is a classic example of Police and Revenue officials interfering in civil matters. Supreme Court and this Court are repeatedly giving directions not to interfere in civil disputes between private individuals as adjudication of civil disputes can be made only through courts created for the said purpose and the Court orders are to be obeyed by all concerned, whether it is Revenue Authorities, Police or private litigants. In this case the remedy open to the 6th respondent was to file execution petition under Section 18 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, after the expiry of time granted to vacate and the Rent Controller, if necessary, could have issued appropriate directions to the Police to give protection to execute the order passed in RCOP. Since the action initiated by respondent is found as improper, the petitioner has made out a case for issuing a writ.

• CRIMINAL

DELHI HIGH COURT

Amarpal (Raj Pal) v. State (Decided on 26.05.2010)

Testimony of Eye Witness - Evidentiary value of memos prepared during investigation - Whether trial judge accepted the testimony of eye witnesses vigilantly?

Held, that it is extremely unfortunate that the learned Trial Judge has mechanically noted the evidence without discussing the same. At a criminal trial the best assurance of guarantee of justice to an accused that his rights under Article 21 of the Constitution of India are protected are the warm and living hands and the hawk's eye of a vigilant Judge through whose hands or eyes no piece of evidence worthy of being noted escapes attention of. When either these hands become cold or the eyes cease to watch carefully, the life and liberty of the accused becomes a casualty. We re-emphasize for the benefit of the learned Trial Judges that it is their duty to see with microscopic eyes, all evidence and then test the veracity of eye-witness account.

• SERVICE

BOMBAY HIGH COURT

Maharashtra Public Service Commission, Mumbai through its Secretary v. Kisan Tukaram More and Ors. (Decided on 21.04.2010) MANU/MH/0494/2010

Appointment - Denial of interview call in Prescription of additional educational qualification as preferential criteria for short listing candidates - Whether criteria evolved by Petitioner-Public Service Commission for short-listing candidates is arbitrary?

Held, the Petitioner, as a Public Service Commission, has framed Rules of Procedure known as Maharashtra Public Service Commission Rules of Procedure, 2005 for carrying out selection. The Recruitment Rules prescribe a preferential criteria, what the Petitioner has done is that it has applied the said preferential criteria at the threshold for short-listing the candidates for interview, taking into consideration the ratio prescribed by the Rules of Procedure between each vacancy and the candidates to be called for interview, and also taking into consideration the number of candidates possessing the said criteria, arbitrariness or any irrationality cannot be made out. Petition Allowed.

• PROPERTY

BOMBAY HIGH COURT

Anil Nemichand Bafna and Ors. v. State of Maharashtra Urban Development Department and Competent Authority, Pune Urban Agglomeration, under Urban Land (Ceiling and Regulation) Act, 1976 (Decided on 06.05.2009) MANU/MH/1647/2009

Property - Land Acquisition Proceedings -Effect of Inordinate delay in exercise of revisional powers by State Government under Section 34 of Urban Land (Ceiling and Regulation) Act, 1976?

Held, Even though no period of limitation is prescribed for exercise of revisional jurisdiction by the State Government suo motu, but in view of the court, such power must be exercised within a reasonable time. The Division Bench of this Court in the case of Automotive Research Association of India vs. State of Maharashtra and others has held that the revisional jurisdiction cannot be exercised after expiry of the period of three years from the date on which the order of the Competent Authority is made.

Property - Land Acquisition Proceedings - Whether state Goverment can exercise suo motu revisional powers in respect of proceedings under section 18 of Urban Land (Ceiling and Regulation) Act, 1976?

Held, it is required to be noted that the competent authority, which can be said to be the original authority, has not taken any proceedings under Section 18 of the Act. The suo motu powers were exercised by the State Government by taking the original order into revision and under the circumstances there was no question of considering the matter on the basis of Section 18 of the Act. In the revisional order there is no mention nor the attention of the petitioners was focused to the provisions of Section 18 of the Act. The petitioners were never called upon to show cause as to why proceedings under Section 18 should not be taken and the penalty should not be imposed. Under these circumstances, the impugned order is not at all sustainable. In the result the petition succeeds.

Property - Land Acquisition Proceedings - Whether State Government has any authority to decide any revisional proceedings under Section 34 of the Urban Land (Ceiling and Regulation) Act, 1976, after the Act was repealed by the State of Maharashtra on 29th November, 2007?

Held, a perusal of Section 4 of the Repeal Act shows that all the proceedings relating to any order which are pending on the date of the commencement of the Act before any Court, Tribunal or other authority shall abate. Since the writ petition is already pending, the petitioners are entitled to get benefit of repeal Act and the proceedings in the form of this writ petition can also be said to be abated.

• TRIBUNAL

INDIRECT TAX

Sudhakar Polymers ltd. v. CCE, hyderabad, CESTAT, Bangalore (Decided on 05.02.2010) MANU/CB/0066/2010

Penalty - CENVAT - C&F Agent - Fraud, collusion, willful misstatement, suppression of facts or contravention of any of the provisions of Finance Act or rules made there under with intention to evade payment of service tax - CENVAT irregularly availed - Whether assessee irregularly availed CENVAT- Rule 15(4) of CENVAT Credit Rules, Sections 76 and 77 of Finance Act, 1994?

Held, Revenue had no case that Appellant had availed impugned credit by reason of fraud, collusion etc.,. Hence Penalty vacated.

Held, impugned Order does not concern default in payment of service tax. Therefore in the instant case Sections 76 & 77 are not attracted as they relate to default in payment of service Hence Appeal allowed.

• INDIRECT TAX

Future Focus Infotech India (P) Ltd. and Future Focus Infotech India (P) Ltd. v. Commissioner of Service Tax, Chennai, CESTAT, Chennai (Decided on 03.03.2010) MANU/CC/0024/2010

Classification - Manpower recruitment or supply agency - Consulting Engineer - Appellant was supplying various skilled personnel to work on software projects undertaken by said companies for their respective clients - Whether service rendered was consulting engineer service, falling under Clause (31) of Section 65 in the field of software development by rendering technical assistance to their clients? - Sections 76&78 of Finance Act, 1994.

Held, appellant was getting paid in terms of the man-hours for the persons deputed to work under the control and supervision of said companies. The Appellant was to replace personnel who left the job by suitably trained personnel as substitutes. He was only supplying skilled manpower for which they are liable to pay service tax for supply of manpower services. Therefore, penalty imposed under Section 76 meets the ends of justice and hence no separate penalty under Section 78 is warranted. Also penalties under Section 76 and Section 78 have been made mutually exclusive. Hence Appeal by assessee partly allowed.

• INDIRECT TAX

Sarguroh Azam Gulzar Khan v. CC (Seaport-Import), Chennai CESTAT, Chennai, (Decided on 11.02.2010) MANU/CC/0054/2010

Customs - Absolute Confiscation - Appellant violated Licensing Notes of the ITC (HS) Classification of Export and Import - Commissioner of Customs Ordered Absolute Confiscation on the ground that Appellant was not the owner of the vehicle as he could not afford such a costly vehicle - Appellant merely lent his name for importation of the vehicle - Whether Absolute Confiscation can be converted into an Order of confiscation? - Section 111(d) and Section 112(a) of the Customs Act, 1962

Held, in the absence of any stipulation in the Import Policy regarding financial condition of the importer, it is not for the Adjudicating Authority to question the financial whereabouts of the Importer. Therefore, Absolute Confiscation is converted into an Order of Confiscation with an option of Redemption of the vehicle. Hence Appeal allowed.

DELHI HIGH COURT

Dhanesh Gupta & Co. v. Commissioner of Income Tax (Decided on 25.05.2010) MANU/DE/1084/2010

Determination of remuneration under Section 142(2D) of IT Act, 1962, payable to Special Auditor - Role of Assessee in determination of remuneration

Held, that the commissioner of Income Tax, while determining remuneration under section 142 (2D) of the Act could not have abdicated his duty to determine the remuneration payable to the Special Auditors, simply by accepting an amount mutually agreed between the Auditor and assessee. Under the Scheme of the Act, the assessee has no role to play in determination of the remuneration by the Commissioner of Income Tax and it has to pay, to the Special Auditor, whatever amount i determined by the Commissioner.