SUPREME COURT

• CRIMINAL

Thahira Haris v Government of Karnataka (Decided on 15.4.2009) MANU/SC/0562/2009

Criminal - Habeas Corpus petition challenging the order of detention filed - Petition filed before High court by the Appellant was dismissed.- Whether for valid continuance of detention the detenu must be supplied all documents, statements and other materials relied upon in the grounds of detention?

It is imperative for valid continuance of detention that the detenu must be supplied all documents, statements and other materials relied upon in the grounds of detention. In the instant case, admittedly, the relied upon document, the detention order of Anil Kumar was not supplied to the detenu and the detenu was prevented from making effective representation which has violated his constitutional right under Clause (5) of Article 22 of the Constitution. The impugned detention order is quashed and the detenu is directed to be released forthwith, if not required in any other case.

Mahtab Singh and Anr Vs. State of U.P. (Decided on 13.04.2009) MANU/SC/0564/2009

Murder - Appellants accused of murder- Trial court acquitted the appellants - On appeal High court convicted the appellants - whether the prosecution story is worth credence and whether the prosecution has sufficiently proved its case against the accused beyond reasonable doubt?

Court was of the opinion that the testimony of PW-1 and PW-2 does not conform with collateral circumstances as well as probabilities. The circumstances brought on record show that reliance on their testimony is not safe. Their testimony is shrouded with grave suspicion and serious doubts. The trial court meticulously examined the entire evidence available on record and then reached the conclusion that the prosecution has failed to prove the charges against the accused beyond reasonable doubt.

• PROPERTY

Mohammad Raofuddin Vs. The Land Acquisition Officer (Decided On 13.04.2009) MANU/SC/0563/2009

Land acquisition - Appellants land acquired and LAO awarded the compensation - Reference filed before Reference court and compensation enhanced - Appeal filed and High court dismissed the same - Question before the court was whether procedure prescribed in the Act was followed while awarding the compensation and what is the scope of interference of the court ?

The scope of interference in such matters is very limited and it is only in cases where it is found that the authorities below have either applied wrong principles or have omitted to take into consideration some important point affecting valuation, that this Court can interfere. Merely because a different conclusion could be possible on two sets of sale/acquisition instances, in our judgment, is no ground to interfere with the award of the High Court when it has taken into consideration an instance which is more closer to appellant's land in respect of the date of acquisition; happened to be in the same village and acquired for the same purpose.

• TENANCY

Kusum Devi Vs. Mohan Lal (dead) by L.Rs (Decided on 08.04.2009) MANU/SC/0560/2009

Eviction - Suit for eviction filed by the Appellant allowed and affirmed by Appellate Court also.- High court reversed the lowers courts order - Question to be determined by the court was whether requirement of the appellant was bonafide?

Court was of the view that , the trial court as well as the first appellate court have rightly come to the conclusion that the requirement of suit premises by the appellant was bona fide and granted decree under Clause (e). There is no infirmity in the lower courts order. There is no provision in the Act preventing a landlord from raising grounds enumerated under Clauses (e) and (g) of Sub-section (1) of Section 12 of the Act together in a suit for eviction. In a given case like the present one, raising both the grounds together, what the court is required to see is whether the bona fide requirement of the landlord to occupy the premises for his own occupation has been proved or not. Once the bona fide requirement under Clause (e) is held to have been proved, the mere fact of having simultaneously pleaded in the plaint that the suit premises, having become unsafe or unfit for human habitation, are bona fide required for carrying out repairs, which could not be carried out without the premises being vacated, does not affect the bona fide requirement of a landlord under Clause (e). Therefore, once bona fide requirement of a landlord for own occupation stands established and a decree for eviction is granted under the relevant provision, it is well within the right of the landlord to either move to the building without or after carrying out repairs.

• EXCISE

Commissioner of Central Excise, Nagpur Vs. Shree Baidyanath Ayurved Bhawan Ltd., (Decided on 13.04.2009) MANU/SC/0565/2009

Excise : Question to be determined by the court was whether DML manufactured by the Appellant falls under Chapter Sub- heading 3003.31 of the Central Excise Tariff Act or is a cosmetic/toiletry preparation/tooth powder classifiable under Chapter Heading 33.06/?

Baidyanath's product DML has not been treated as Ayurvedic Medicine to qualify for exemption from payment of excise duty under Notification No. 62/78-CE dated March, 1, 1978 by this Court. Merely because there is some difference in the tariff entries, the product will not change its character. Something more is required for changing the classification especially when the product remains the same. Question before the court was does Chapter Sub- heading 3003.31 contain a definition of Ayurvedic Medicine and, if so, common parlance test for classifiability of the product, whether medicament or cosmetic, is inapplicable? 

To find out whether the product described against Sub-heading 3003.31 is a medicament or not, aid to Note 2 of Chapter 30 for the purposes of Heading 30.03 is necessarily called in. There is no doubt that a specific entry must prevail over a general entry. This is reflected from Rule 3(a) of the general Rules of interpretation that states that heading which provides the most specific description shall be preferred to headings providing a more general description. DML is a tooth powder which has not been held to be Ayurvedic Medicine in common parlance in Baidyanath I1.

• CONSTITUTION

Avinash Mehrotra Vs. Union of India (UOI) and Ors, (Decided on 13.04.2009) MANU/SC/0555/2009

P.I.L. - To protect the rights of life and education guaranteed to all school going children under Articles 21 and 21A, the petitioner has filed public interest litigation and prayed before Court to bring about safer school conditions.

Court directed that (i) Before granting recognition or affiliation, the concerned State Governments and Union Territories are directed to ensure that the buildings are safe and secured from every angle and they are constructed according to the safety norms incorporated in the National Building Code of India.(ii) All existing government and private schools shall install fire extinguishing equipments within a period of six months.(iii) The school buildings be kept free from inflammable and toxic material. If storage is inevitable, they should be stored safely.(iv) Evaluation of structural aspect of the school may be carried out periodically. We direct that the concerned engineers and officials must strictly follow the National Building Code. The safety certificate be issued only after proper inspection. Dereliction in duty must attract immediate disciplinary action against the concerned officials.(v) Necessary training be imparted to the staff and other officials of the school to use the fire extinguishing equipments.

HIGH COURT

• INTELLECTUAL PROPERTY RIGHTS

BOMBAY HIGH COURT

Ram Sampath v Rajesh Roshan (Decided on 15.4.2009) MANU/MH/0240/2009

Copyright - Suit filed for perpetual injunction restraining the Defendants from directly or indirectly infringing in any manner the Plaintiff's copyright in musical composition / theme and for damages - Petition filed before High Court - What factors should be taken into consideration for deciding whether a copy of a part of the former musical work into the latter amounts to an actionable infringement ?

For considering whether a copy of a part of the former musical work into the latter musical work amounts to an actionable infringement, the following factors would be required to be taken into consideration. First is to identify the similarities and the differences between the two works. Second is to find out whether the latter would meaningfully exist without the copied part. It may be necessary to find the soul of a musical work. The soul cannot be determined merely by comparing the length of the part copied but whether the part copied is an essential part of a musical work. Though a musical work may have a length of several minutes, the listener often remembers a "catch part" to which he is immediately hooked on. It is necessary to look for such "catch part" or the "hook part". If the "catch part" or hook part, howsoever small, is copied the whole of the latter work would amount to actionable infringement. It is necessary to remind oneself that the desire, of an infringer, is necessarily to copy "the attractive", "the catchy", the grain" and leave the chaff, for he would attract the audience only by the attractive, and not by the ordinary. These factors are only illustrative and there would be many other factors which may be required to be looked into depending upon the facts and circumstances of each case. In the present case, though the part which is copied is small and is only of 6 seconds, it is repeated atleast four to five times in the defendants' work even as per their own admission. What was the need of repetition of the same part has not been explained in the affidavit in reply and that is perhaps because the defendant No. 1 knew that it was the "catch part" or the part to which the listener would be hooked to when he hears or re-hears the musical work. Even if it is held that the portion copied is only a small part of the work of the plaintiff, it amounts to an actionable infringement giving rise to a cause for action in damages as well as injunctive relief.

• LIMITATION

MADRAS HIGH COURT

S Lalitha v Nagalakshmi, Saradhammal, Usha and Latha (Decided on 03.04.2009) MANU/TN/0581/2009

Limitation Act, section 5 and Code of Civil Procedure, Order 9, Rule 13 - Appeal filed under Section 5 of the Limitation Act to condone the delay of 1547 days in filing a petition under Order 9 Rule 13 to set aside the exparte decree - Appeal filed before Trial Court - Trial Judge allowed the applications on costs of Rs. 2000/- and Rs. 500/- respectively - Aggrieved by the findings of the learned trial Judge these Revisions have been preferred by the revision petitioner before this Court. Petition dismissed.

There is absolutely no material placed before the trial Court to show that during the pendancy of O.S. No. 288 of 1998 the respondents herein were impleaded as LRs of the appellant in A.S. No. 38 of 1999. Under such circumstances, as correctly held by the Court below, Court was of the view that principles of natural justice must be followed and respondents must be given opportunity to defend the case.

• BANKING

BOMBAY HIGH COURT

Puran Maharashtra Automobiles V. The Sub Divisional Magistrate (Decided on 04.04.2009) MANU/MH/0238/2009

Securitization - Notice u/s 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act issued for taking possession of the property in question- Writ petition filed by the appellant was dismissed- Question before the court was whether District Magistrate has power to delegate under section 14 of the Act?

Powers that are exercised by the District Magistrate or Chief Metropolitan Magistrate under Section 14 of the said Act are purely executionery in nature and particularly when no element of quasi judicial functions or application of mind is required while exercising the said powers. It is further clear the from the Sub-section (2) of the said Section that for the purpose of securing the compliance of Sub-section (1) the Chief Metropolitan Magistrate or District Magistrate can take or cause to be taken such steps and use or cause to be used, such force, as may, in his opinion, be necessary.

• LABOUR AND INDUSTRIAL

MADRAS HIGH COURT

K. Logachandran Vs. The District Collector, The Tahsildar and The Management of Annamalai Cotton Mills Ltd (Decided on 04.03.2009), MANU/TN/0518/2009

Compensation payable to a workman is a statutory benefit payable by the employer. The right to get workmen compensation, though a statutory right, in deed, emanates from right to life guaranteed under Article 21 of the Constitution of India. So, the embargo under Section 22(1) of SICA cannot be made applicable to proceedings in respect of recovery of workmen compensation. A recovery certificate issued under Section 31 of WC Act can be equated to a certificate issued under Section 33(C) of the Industrial Disputes Act. It has been consistently held by various High Courts, that the authorities can enforce such certificates issued under Section 33(C) of the Industrial Disputes Act despite the fact that the company has become sick and so declared by the BIFR. . 

• PROPERTY

BOMBAY HIGH COURT

Ramdas Shivram Sattur Vs. Rameshchandra @ Ramchandra Popatlal Shah and Ors (Decided on 09.04.2009) MANU/MH/0235/2009

Property - Deceased was owner of property and appointed defendant/appellant as nominee- Specific performance of contract awarded in favour of Plaintiff's and First appeal by the appellants dismissed - Questions before the court was whether the nominee does not acquire right, title and interest in the property in regard to which he is nominated under Section 30 of the Maharashtra Cooperative Societies Act to claim property and Whether, Section 30 of the Maharashtra Cooperative Societies Act provides for a special rule of succession altering the rule of succession laid down by the personal law applicable to the person concerned?

Section 30 of the Maharashtra Cooperative Societies Act, 1960 does not provide for a special rule of succession altering the rule of succession laid down under the personal law. The Section 30 only provides for a proper discharge of the society without involving the society in a litigation which may take place as a result of disputes between the heirs.by virtue of nomination of Appellant by her deceased husband under Section 30 of the Maharashtra Cooperative Societies Act, 1960, she does not become absolute owner of the property, however, was only empowered to hold the property in trust for the real owners that too for the purpose of dealings with the society. Appellant, as such, had no power, authority and title to alienate the property to the exclusion of the other legal heirs of deceased. Appellant,as such, was not competent to entere into an agreement for sale of the suit plot as Tarabai along with her four children were ClassI heirs of Shivram.