SUPREME COURT

• CRIMINAL

Aqeel Ahmad Vs. State of U.P (Decided on 19.12.2008)

Delay in dispatch of FIR to concerned Magistrate- Requirement of Section 157 of CrPC- Whether delay in dispatch of FIR to concerned Magistrate can affect the credibility of the prosecution case?

Section 157 CrPC requires report to be sent forthwith by the police officer concerned to a Magistrate empowered to take cognizance of such offence. This is really designed to keep the Magistrate informed of the investigation of such cognizable offence so as to be able to control the investigation and if necessary to give appropriate direction under Section 159. But in case, the FIR was actually recorded without delay and the investigation started on the basis of that FIR and there is no other infirmity brought to notice, then, however improper or objectionable the delayed receipt of the report by the Magistrate concerned it cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable. Appeal dismissed.

Award of death sentence-  Whether number of deaths caused by accused could be determinative factor for award of death sentence to accused?

Number of deaths in a case would not be the determinative factor for awarding the death sentence. Even in the case of single victim death sentence can be awarded taking into consideration the circumstances of the case.

Harendra Nath Chakraborty Vs. State of West Bengal (Decided on 19.12.2008)

Appellant was dealing with an essential commodity in kerosene oil - Opening balance of kerosene oil was not mentioned in the stock register by the Appellant and total stock of kerosene oil were not found, there was shortage of kerosene oil - Appellant was convicted under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 - Whether a case has been made out to invoke the proviso appended to Section 7(1)(a)(ii) of the Act

Section 7(1)(a)(ii) provides for imposition of a penalty on a person who contravenes any order made under Section 3 of the Essential Commodities Act,1955 with imprisonment for a term which shall not be less than three months but which may extend to seven years and shall also be liable to fine. The proviso appended thereto postulates that the court may, for any adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than three months.

Appellant was dealing with an essential commodity like kerosene. Appellant did not adduce any evidence in defence. The amount of kerosene which had been seized and kept in the custody of Appellant has not been denied or disputed. If the Parliament has provided for a minimum sentence, the same should ordinarily be imposed save and except some exceptional cases which may justify invocation of the proviso appended thereto. No case has been made out to invoke the proviso appended to Section 7(1)(a)(ii) of the Act. Appeal is dismissed.

Brij Nandan Jaiswal Vs.Munna @ Munna Jaiswal and Anr (Decided on 19.12.2008)

Grant of bail- Ground for grant of bail - High Court granted bail to accused, which was rejected by Trial Court, vide a short order without assignment of proper reasons - Whether order granting bail is questionable and whether reasons are to be recorded for the grant of bail?.

It is now a settled law that complainant can always question the order granting bail if the said order is not validly passed. It is not as if once a bail is granted by any court, the only way is to get it cancelled on account of its misuse. The bail order can be tested on merits also. Therefore, the complainant could question the merits of the order granting bail. However, while granting bail, particularly in serious cases like murder some reasons justifying the grant are necessary.

• MOTOR VEHICLES

Asraf Alli V. Naveen Hotels Ltd. and Anr (Decided on 19.12.2008)

Computing of amount of compensation for disability due to accidents by Tribunal-Tribunal awarded compensation to victim by fixing income of victim on actual basis - On appeal, High Court reduced amount of compensation holding that Tribunal decided compensation by fixing income of victim on notional basis and not actual basis - However, High Court did not assign any reason in support of its judgement - Whether High Court has jurisdiction to interfere with findings of Tribunal? Second Schedule of the Motor Vehicles Act, 1988 and Section 173 of Motor Vehicles Act, 1988

The High Court has not assigned any reason in support of its judgment. It did not enter into the correctness of the findings of fact arrived at by the Tribunal in regard to the income of the deceased. The Tribunal held that the income of the appellant was Rs. 3,000/- per month not on a notional basis but on actual basis. The High Court, in exercise of its jurisdiction under Section 173 of the Act either could have affirmed the said finding or reversed the same but for the said purpose it was required to consider the merit of the matter. The High Court, therefore, has proceeded on a wrong premise that the Tribunal had fixed the income of the appellant on a notional basis.

• FAMILY

Lalitaben Jayantilal Popat Vs. Pragnaben Jamnadas Kataria and Ors (Decided on 19.12.2008)

Wills- Validity of a Will - Legal Requirements for proving a valid Will - Mandatory provisions of Attestation of Will by two witnesses and examination of at least one attesting witness - Section 63(c) of the Indian Succession Act and Section 68 of Evidence Act

Execution of a Will must conform to the requirement of Section 63 of the Succession Act, in terms whereof a Will must be attested by two or more witnesses. Execution of a Will, therefore, can only be proved in terms of clause (c) of Section 63 when at least one of the two witnesses proves the attestation. A Will is required to be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will. Section 68 of the Evidence Act provides for the requirements for proof of execution of the Will. In terms of said provision, at least one attesting witness has to be examined to prove execution of a Will. Appeal allowed.

• SERVICE

Bank of Baroda and Ors. Vs. Ganpat Singh Deora (Decided on 18.12.2008)

Voluntary Retirement Scheme - Benefit of - Respondent was an employee of the Appellant-Bank - Appellant-Bank introduced the `Bank of Baroda Employees Voluntary Retirement Scheme-2001(BOBEVRS-2001) - Under the said Scheme, along with terminal benefits pension in terms of the Bank of Baroda (Employees Pension) Regulations, 1995, was to be provided to employees who opted for the VRS Scheme - Respondent applied for voluntary retirement claiming to be eligible under the Scheme, having completed 40 years of age and filed an application before the Central Labour Commissioner - As the reconciliation process failed and the matter was fixed before the Tribunal - Tribunal allowed the respondent's claim and directed the appellant to pay the respondent pension - Appellant-Bank filed a Writ Petition on which High Court dismissed the writ petition - Hence, the present appeal - Whether Regulation 29 of the Pension Regulations, 1995, could have been applied in the case of the respondent or whether Regulation 14 has been rightly applied both by the Tribunal and the High Court

The BOBEVRS-2001 itself does not give any indication, other than what has been stated, as to which of the employees of the appellant-Bank would be entitled to opt for voluntary retirement. It only mentions that all permanent employees of the Bank, who would have completed/would be completing minimum 15 years of service or those who have completed/would be completing 40 years of age, would be eligible to apply for voluntary retirement under the BOBEVRS-2001.

Regulations 14 and 29 of the Pension Regulations, 1995, relate to the period of qualifying service for pension under the said Regulations, in two different situations. While Regulation 14 provides that in order to be eligible for pension an employee would have to render a minimum of 10 years service, Regulation 29 is applicable to the employees choosing to retire from service pre- maturely, and in their case the period of qualifying service would be 15 years. The facts of this case, however, do not attract the provisions of Regulation 29 since the respondent accepted the offer of voluntary retirement under the Scheme framed by the Bank and not on his own volition dehors any Scheme of Voluntary Retirement. However, the period of qualifying service has been retained as 15 years for those opting for BOBEVRS-2001 and is treated differently from premature retirement where the minimum period of qualifying service has been fixed at 10 years in keeping with Regulation 14 of the Pension Regulations, 1995. Writ Petition filed by the appellant-Bank is allowed

• CIVIL

C.R. Jayaraman and Ors. Vs. M. Palaniappan and Ors. (Decided on 18.12.2008)

Appellants filed suits for a declaration that the temples in question were private in nature and not public temples - Whether a temple was in fact a private one or dedicated to the public

In Goswami Shri Mahalaxmi Vahuji v. Shah Ranchhoddas Kalidas (dead) and Ors. MANU/SC/0466/1969, Supreme Court held that, the true character of the particular temple is decided on the basis of various circumstances. In those cases, the courts have to address themselves to various questions such as,i) Is the temple built in such imposing manner that it may prima facie appear to be a public temple? ii) Are the members of the public entitled to worship in that temple as of right? iii) Are the temple expenses met from the contributions made by the public? iv) Whether the sevas and unsevas conducted in the temple are those usually conducted in public temples? v) Has the management as well as the devotees been treating that temple as a public temple?

In the present dispute as had been noted by the trial court and later affirmed by the High Court in its impugned judgment, it has been proved beyond doubt that public offerings were accepted during the normal days of worship by the Poojari, and that the members of the public visited the temple often as a matter of right without any hindrance or obstruction. In the present case, on entire consideration of the materials on record, had held that the temples in question are public in nature, it is difficult to interfere with such finding of fact in the exercise of our power under Article 136 of the Constitution of India. No infirmity in the findings of the High Court as well as of the trial court to hold that the aforesaid temples were public in nature and the appellants had failed to prove successfully that the same were private in nature. Appeal dismissed.

HIGH COURT

• COMPANY

MADRAS HIGH COURT

MSPL Gases Limited rep. by its Senior Manager (Sales) Mr. D. Ramesh Babu Vs. Steel Authority of India Limited through its Executive Director (Operations) and Ors. (Decided on 01.12.2008) MANU/TN/1223/2008

Companies Act - Section 18; Constitution of India - Articles 14 and 226 - Reasonableness- Arbitrariness or favouritism - Judicial Review - Contractual matters while inviting bids by issuing tenders - An action on the part of the State which is violative of the equality clause contained in Article 14 of the Constitution of India - Whether a writ petition would be maintainable, even in the contractual field, seeking for judicial review on such State authorities.

Held that writ petition is maintanable. A distinction indisputably has to be made between matters which is at the threshold of a contract and a breach of contract; whereas in the former the court's scrutiny would be more intrusive, in the latter the court may not ordinarily exercise its discretionary jurisdiction of judicial review, unless it is found to be violative of Article 14 of the Constitution. While exercising contractual powers also, the government bodies may be subjected to judicial review in order to seek reasonableness and to prevent arbitrariness or favouritism on their part. Indisputably, inherent limitations exist, but it would not be correct to opine that under no circumstances a writ will lie only because it involves a contractual matter.

When one has to establish that a person apparently acting in the legitimate exercise of power has, in fact, been acting mala fide in the sense of pursuing an illegitimate aim.

Where a power is given to an authority do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden.

• DIRECT TAXATION

DELHI HIGH COURT

Moser Baer India Ltd. Vs. The Additional Commissioner of Income Tax and Anr. (Decided on 19.12.2008) MANU/DE/1800/2008

Whether the right to oral hearing , which generally flow from a statute , falls under the rule of law of the expression of "Civil consequences" as enunciated by courts.

The Supreme Court has observed that civil consequences involve infraction of not only property and personal rights, but also, actions which impinge on civil liberty of an individual or result in material deprivation or even result in non- pecuniary damages.

• SERVICE

DELHI HIGH COURT

Shri E. Sreedharan Vs. Union of India (UOI) and Ors. (Decided on 05.12.2008) MANU/DE/1733/2008

Petitioner retired from Indian Railways on 30th June, 1990. After his retirement, through a process of selection by Public Enterprises Selection Board, which was approved by Appointments Committee of the Cabinet, the petitioner was appointed as Chairman-cum-Managing Director (CMD) of Konkan Railway Corporation in Schedule 'A' of scale of pay of Rs. 900-250-10000 for a period of five years from the date he takes over or till the completion of the Konkan Railway Project, whichever is earlier - After two years of joining as CMD, the basic pay of the petitioner was reduced by Rs. 4,000/- per month on account of pension he was receiving. Issue is whether the case of the petitioner is that of re-employment and not of fresh appointment and his pensionary benefits are liable to be deducted from his basic salary.

The petitioner being appointment as CMD was an independent Corporation, it was not a case of re-employment in Civil Services or on a post in connection with the affairs of the Union Government. The petitioner since was 'Appointed' as CMD of the Respondent No. 4 and his salary was fixed as Rs. 9000-10000 and the amount of pension which was received by the petitioner cannot be deducted from his salary. Consequently all the amounts which have been deducted by the respondents from the salary of the petitioner were illegal and the respondents are liable to refund all the amounts to the petitioner.

• INTELLECTUAL PROPERTY RIGHTS

MADRAS HIGH COURT

Indian Network for People living with HIV/AIDS, rep. by its President and Tamil Nadu Networking People with HIV/AIDS, rep. by its President Vs. Union of India (UOI) rep. by the Secretary, Department of Industrial Policy and Promotion, Ministry of Industry and Commerce, Controller General of Patents and Designs, Assistant Controller of Patents and Designs and F. Hoffmann-La Roche AG (Decided on 02.12.2008 ) MANU/TN/1217/2008

Petitioner is challenging validity of the patent registered by the 4th Respondent under No. 959/MAS/1995 that all inventions relating to products that were disclosed prior to 1995 were in the public domain. The petitioners has contended that any product patent application in respect of an invention which was in public domain prior to 1995 must therefore be rejected on the grounds that the subject matter of invention lacks novelty.

The right of the petitioner in working out its remedy as against the invalid action of the third respondent cannot be defeated on that consideration. The grant of patent to the 4th respondent is set aside. And second respondent is asked to assign the consideration of the petitioner's pre-grant opposition to any other officer in the rank of Assistant Controller of Patents, Designs & Trade Marks in the Intellectual Property Office, other than the officer who granted the Patent and published it on 29.06.2007 in Patent Application No. 959/MAS/1995.

DELHI HIGH COURT

The Indian Performing Right Society Ltd.v.Sanjay Dalia And Anr. (Decided on 19.11.2008) MANU/DE/1646/2008

Intellectual Property Rights - Copyright - Infringement of copyright - Forum for filing suit - Filing of plaint at situs of cause of action - Section 62 of Copyright Act, Section 134 of Trademarks Act and Section 20 of Civil Procedure Code - Whether Section 62 of the Copyright Act grants absolute discretion and freedom of choice to the Plaintiff to institute a suit wherever it voluntarily resides, or carries on business or personally works for gain?

The intendment of Section 62 of the Copyright Act and Section 134 of the Trade Marks Act is to enable the Plaintiff to initiate litigation at a forum convenient to it. It is not intended to allow the Plaintiff to choose a territorial forum which is not convenient to either of the parties, as is demonstrated by the case in hand. Appeal dismissed.

• FAMILY

       MADRAS HIGH COURT

G.P. Rajendran Vs. M. Valarmathi (Decided on 28.11.2008) MANU/TN/1291/2008

Family - Claim for maintenance - Prima Facie Enquiry as to the merits of the case and means of the parties by Court - Section 24 of Hindu Marriage Act, 1955 - Whether maintenance can be awarded without prima facie enquiry by the court into the merits of the case as well as whether the parties had any means to support them?

The right of a wife or maintenance is an incident of the status or estate of matrimony. The ingredients of Section 24 of the Hindu Marriage Act, 1955 are in explicit terms to the effect that the Court in its discretion may make the order in favour of the wife or the husband where it is proved that such spouse has not independent income sufficient to maintain herself or to bear the necessary expenses of the proceedings.

When an application for maintenance pendente lite under Section 24 of the Act is made, it is the duty of the matrimonial Court to hold a summary enquiry to determine prima facie the merits of the case as also the question of means of the parties for maintenance. The scope of enquiry under Section 24 of the Act can be compared with the scope of enquiry in a civil matter where some interim relief in the nature of temporary injunction or appointment of receiver is claimed by one of the parties.

• TRUSTS AND SOCIETIES

BOMBAY HIGH COURT

Goa Post and Telegraphs Credit Co-operative Society Limited V. The Registrar of Co-operative Societies, State of Goa (Decided on 14.11.2008) MANU/MH/1050/2008

Trusts and Societies - Refusal of registration to Co-operative Society by Authority - Re-grant of registration quashing finding of Authority based only on a representation - Section 9 of Maharashtra Co-operative Societies Act, 1960 - Respondent No. 2 Society was refused registration by Deputy Registrar of Co-operative Society - Thereafter, Respondent No. 1-Registrar issued notification granting registration to Respondent No. 2 Society on the basis of a representation made by Respondent No. 2 Society rather than a proper appeal

Finding recorded by an authority under Section 9 can only be set aside in a properly filed appeal questioning the correctness of the finding. No proper appeal has been filed before the Registrar by the Respondent No. 2 seeking quashing of the order passed by the Deputy Registrar. Therefore, order passed by the Registrar granting registration is quashed and set aside.

• TENANCY

BOMBAY HIGH COURT

Tatya Vithoba Dethe (since deceased through his heirs) Dnyanoba Tatya Dethe and Ors V. Madhavdas K. Maysurkar (since deceased through his heir) (Decided on 18.11.2008) MANU/MH/1102/2008

Tenancy - Sale of agricultural land in possession of tenant - Prohibition against transfer or acquisition of agricultural land - Section 64 of Bombay Tenancy and Agricultural Lands Act - Members of Joint Undivided Hindu Family of Petitioner-tenant purchased suit property, which was in possession of Petitioner-tenant, from predecessor in title of the present Respondent - Thereafter, order came to be passed declaring said sale as invalid - Whether sale of agricultural land in possession of a tenant is statutorily prohibited?

Under Section 64(2)(a)(i), the agricultural land is permitted to be sold to a tenant in actual possession of the land. Dnyanoba and Santaram who were in possession of the land as members of the Un-divided Hindu Family of Tatya were also tenants under Section 2(18). Being in actual possession of the land as tenants, they were entitled to purchase the land under Section 64 of the Act. Therefore, the sale of the land to the Petitioners cannot be faulted. Petition allowed.