SUPREME COURT

• CIVIL LAWS

Syed Ashwaq Ahmed v. Jt. Secretary & Chief Passport Ofr. & Anr (Decided on 09.09.2010)

Grant of Concession - Entitlement - Petitioner conducted of business without membership since 1997 - Concession granted to members of Travel Agent Association of India (TAAI) by the Government   - Whether the Petitioner was entitled to the benefit of the scheme promulgated on 18th July, 2000?

Held, Petitioner could not be recognised as a travel agent since he had started his business in 1997, long after the system had been withdrawn, is in keeping with said scheme and does not require any interference. Once the policy of recognising travel agents for the purpose of submitting passport applications and receiving the same on behalf of a client, was discontinued after July, 1992, the Petitioner, who had begun his travel agency after the said date, was not entitled to the benefit of the fresh guidelines which came to be issued on 18th  July, 2000, by providing a one-time concession for all travel agents who were working prior to 1992, even though they were not members of TAAI. The policy is neither irrational nor unreasonable and appears to have been made to streamline the system of applying for and receiving passports. Therefore, no reason found to interfere with the decision of the High Court . Petition dismissed .

State of Haryana v. Satish Kumar Mittal and another (Decided on 07.09.2010)

Limitation - Suit for Correction of Date of Birth - Respondent No.1 Assistant District Attorney sought for Correction of date of birth after 9 years of joining of service  - Respondent No.1 took more than three years to serve the Notice under Section 80 of the CPC, 1908 - Respondent No. 1 representation was turned down on the basis of the Notification issued by the Finance Department, Government of Haryana, containing the amendments to the Punjab Finance Rules framed under Article 283(2) of the Constitution of India, 1950 - Hence this appeal -  Whether the suit filed by the Respondent was barrred by Limitation?

Held, the High Court as well as the courts below clearly erred in entertaining the claim of Respondent No.1 for correction in his date of birth at a belated stage . It has to be filed within the time provided or within a reasonable time and it is not to be entertained merely on the basis of plausible material as held in Kirbukara. Therefore, relying  on Union of India v. Harnam Singh, the Courts clearly erred in finding fault with the Appellant for allegedly applying the Notification . Hence, Appeal filed by the Appellant is allowed and Suit filed by the Respondent No.1 dismissed.

• TENANCY 

Ramesh Govindram (Dead) through Lrs. v. Sugra Humayun Mirza Wakf (Decided on 01.09.2010)

Suit for eviction  - Jurisdiction of Wakf Tribunal - Sections 83 and 85 of the Wakf Act, 1995 - Whether under Section  83 of the Act the Wakf Tribunal was competent to entertain and adjudicate upon disputes regarding eviction of the Appellants who were occupying different items of Wakf properties?

Held, the language employed in Section 83 of the Act has been understood to be so wide as to include any dispute, question or other matter relating to a wakf or wakf property. Section 83 of the Act, however, does not deal with the exclusion of the jurisdiction of the Civil Courts to entertain civil suits generally or suit of any particular class or category. Nothing in Section 83 to suggest that it pushes the exclusion of the jurisdiction of the Civil Courts it simply empowers the Government to constitute a Tribunal or Tribunals for determination of any dispute, question of other matter relating to a Wakf or Wakf property which does not ipso facto mean that the jurisdiction of the Civil Courts stands completely excluded by reasons of such establishment . Also the Act does not provide for any proceedings before the Tribunal for determination of a dispute concerning the eviction of a tenant in occupation of a Wakf property or the rights and obligations of the lessor and the lessees of such property . A suit seeking eviction of the tenants from what is admittedly Wakf property could, therefore, be filed only before the Civil Court and not before the Tribunal . Therefore, impugned orders passed by the High Court and those passed by the Wakf Tribunal set aside .

• MOTOR VEHICLES

Yadava Kumar v. The Divisional Manager, National Insurance Co. Ltd. & Another (Decided on 31.08.2010) MANU/SC/0657/2010

Determination of quantum of compensation - Section 163A of Motor Vehicles Act, 1988 - Appellant, a painter by profession, sustained injuries in a road accident  - Compensation granted by the Tribunal enhanced by High Court from  Rs.52,000 to  Rs.72,000 but High Court refused to  award any amount towards loss of future earning  - Whether the compensation granted to Appellant was correct?

Held, High Court and the Tribunal while assessing compensation in the accident cases must take a reasonably compassionate view of things and must realise that there is a distinction between compensation and damage . It cannot be disputed that the Appellant being a painter has to earn his livelihood by virtue of physical work. The nature of injuries which he admittedly suffered, and about which the evidence of PW-2 was quite adequate, amply demonstrates that carrying those injuries he is bound to suffer loss of earning capacity as a painter and a consequential loss of income is the natural outcome. Compensation is comprehensive and may include a claim for damage . Thus, in the matter of computation of compensation, the approach will be slightly more broad based than what is done in the matter of assessment of damage. Therefore, grants a lump sum of Rupees Two Lacs by way of compensation plus 8 per cent  interest as granted by the High Court.

• NARCOTIC LAWS

Dehal Singh v. State of Himachal Pradesh (Decided on 31.08.2010) MANU/SC/0666/2010

Possession of contraband substance - Trial  Court convicted Appellants under Section  20 of Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced them to undergo rigorous imprisonment for a period of 10 years each and to pay fine - High Court dismissed appeal filed against said order  - Whether in view of the evidence order of the High Court and Trial Court could be upheld?

Held, impugned vehicle was intercepted and searched on a highway and impugned substance was weight in the weighting scale of grocery shop and it was common knowledge that weighing scale and weight kept in the grocery shop was not of such standard which can weigh articles with great accuracy and therefore difference of 15 gms. in weight, was not of much significance. Moreover, both the Appellants have been found traveling in the vehicle from which impugned substance was recovered . Once possession established the Court can presume that the accused was in conscious possession . Impugned order of High Court and Trial Court upheld . Appeals dismissed.

HIGH COURTS

• DIRECT TAXATION

BOMBAY HIGH COURT

Vodafone International Holdings B.V. v. Union of India (Decided 08.09.2010) MANU/SC/0105/2009

Tax Transactions -  Jurisdiction of Income Tax  Department on Transaction outside India - Determination 0f - Whether  Income tax authorities in India have the jurisdiction to tax transactions, even though the transaction took place outside India as the underlying assets were in India ?

Held, Court held that the transfer of these rights and entitlements constitute capital, which can be taxed as part of non-resident income. This upholds the contention of the tax authorities which argued that Vodafone (non-resident buyer) should have deducted tax before making payment to the non-resident seller. The Court also remarked that only that part of income will be taxed in India which can be attributable to India and not on the foreign source income.

• COMMERCIAL LAWS

BOMBAY HIGH COURT

Spanco Limited v. A2Z Maintenance & Engineering Services Limited and Anr. (Decided 01.09.2010)

Bidding — Rejection of bid by Respondent-Authority — Challenge against thereto on ground that decision of Respondent - Authority discriminatory and arbitrary — Scope of judicial review thereof — Order XLVII Rule 1 of Civil Procedure Code, 1908 

Held, the power of review is limited in nature and review can only lie if one of the grounds mentioned in Order XLVII Rule 1 is made out namely discovery of new and important matter of evidence which after the exercise of due diligence, was not within the knowledge of the Applicant or could not be produced by him at the time when the decree was passed or order was made; mistake or error apparent on the face of the record; or for any other sufficient reason. In the instant case, none of the grounds mentioned in Rule 1 is made out by the review Petitioner and, therefore, the Review Petition is liable to be dismissed. 

• CRIMINAL LAWS

BOMBAY HIGH COURT

Subodh Prasad Urf Anil Chotu Jagdish Mahato v. State of Maharastra (Decided on 07.09.2010 )

 Application for furlough leave - Rejected on the ground of local surety - Appeal against thereto - Whether the condition specified in Government Circular dated 16th December 2008, requiring the prisoners from other States to furnish local surety within the State of Maharashtra, for availing furlough leave, infringes the right of such prisoner?

Held, after considering the facts of the case, Court found no hesitation in setting aside the condition imposed by the Authority in each of these Petitions to furnish local solvent surety only from State of Maharashtra. Further, the relevant clause in the Government Circular dated 16th December 2008 will have to be read to mean to submit inquiry report as to whether it is necessary to provide a local surety. The requirement of furnishing local solvent surety from Maharashtra cannot be treated as condition precedent for grant of furlough leave to prisoners from other States. On the other hand, if the prisoner/convict is in a position to offer solvent surety, albeit, from outside Maharashtra, there is no reason to discard such surety, unless there is adverse report as in the case in the first Petition before us relating to the area where the prisoner intends to spend his furlough leave. At the same time, the Authority can refuse or not recommend release of the prisoner in question on the ground of public peace and tranquility or such other grounds specified in Rule 4 in Clauses (1) to (10) thereof.

Punjab High Court

S.P.S. Rathore v. Central Bureau of Investigation (Decided on 01.09.2010)

Application for release of the Petitioner on probation  -  Rejection thereto - Petitioner Convicted  under section 354 Indian Penal Code , 1860 applied for probation which was rejected by Trial Court - Hence this appeal - Whether the Petitioner was entitled to the benefit of probation?

Held, on certain aggravating factors on the consideration of which, this Court was unable to grant of benefit of probation to the Petitioner. The most relevant factor in this regard was the official position held by the Petitioner vide which he was supposed to act as a guardian and protector not just for his immediate family but to the entire society. The justice delivery system has to take up the responsibility here and now to advance justice by enhancing the faith and confidence of the victims and also the common man in the justice delivery system. To be firm in dealing with crime against the vulnerable sections of the society, particularly the woman, is the requirement of the time and its relevance if not appreciated shall cause loss of faith of the common man in the State institutions and particularly in the judicial system. People with privilege and power must be conscious of their prestige. The responsibility put on the Petitioner, by the system of which he was an important functionary, was completely betrayed by him. The prayer for extending the benefit of probation to the Petitioner has been dealt in detail by the lower courts and after careful consideration of the relevant factors has been rejected. 

• LIMITATION LAWS

KERALA HIGH COURT

Alavikutty v. Rukhiya (Decided on 02.09.2010)

Condonation of delay - Past maintenance for a period of 36 months to the claimants along with interest @ 9 per cent 1 per annum - Whether  condonation of delay of 160 days in filling a matrimonial appeal could be granted to the Claimant?

Held, Court gone through the affidavit in support of the application for condonation of delay. The reasons urged for condonation of delay were far from satisfactory. According to the Petitioner, he was under the impression that as in a challenge in criminal revision he has 90 days time to file the appeal. Even assuming that, the delay of 160 days remains unexplained, Court not at all satisfied that there was sufficient reason to condone the delay. Court not satisfied that notice need be issued in the application for condonation of delay, satisfactory reasons having not been shown . In Court anxiety to ensure that the rejection of the prayer for condonation of delay does not result in miscarriage of justice, the Petitioner/Appellant was requested to explain the nature of the challenge which he wants to mount against the impugned order. The quantum of maintenance awarded is the main plank of challenge. The amounts awarded, as stated earlier, was Rs.1,200/-, Rs.600/- and Rs.500/- per mensem respectively for the wife and two minor children. Court looked into the nature of the employment of the Appellant and also have taken note of the requirements of the claimants for keeping body and soul together so the quantum awarded not excessive. Court certainly of the opinion that appeal need not be admitted for consideration of the rate of interest (9%) which was ordered to be paid on the maintenance amount. The maintenance amount admittedly has not been paid so far. Thus, Court satisfied that the rejection of the prayer for condonation of delay shall not result in any miscarriage of justice.

• PROPERTY LAWS

PUNJAB HIGH COURT

Kapoor Singh son of Singara Singh v. Gram Panchayat village Badhana and another (Decided on 31.08.2010)

Suit for declaration and permanent injunction for possession of the impugned agricultural land against the Defendant - Sections 13 and 13A of Punjab Village Common Lands (Regulation) Act, 1961 - Order 7 Rule 10 Code of Civil Procedure, 1908 - First Appellate Court dismissed appeal filed and returned the plaint for presentation before the proper forum - Whether order of the first Appellate could be upheld?

Held, a co-joint reading of Sections 13 and 13A of Act 1961 would reveal that if any question of title is involved, then the jurisdiction of the civil Court is explicitly barred and only Collector is competent to decide the same in this relevant connection . Once, it is proved that the civil Court did not have the jurisdiction to entertain and try the suit, then the plaint ought to have been returned by the trial Court to be presented before the appropriate Court as contemplated under Order. 7 Rule. 10 CPC . Thus, Court view that the first Appellate Court has rightly directed the return of plaint to be presented in the appropriate Forum to determine the question of title between the parties in this relevant connection. Therefore, the Appellant "stricto sensu" liable to be and hereby repelled and the impugned judgment of Ist Appellate Court deserves to be and hereby maintained, in the obtaining circumstances of the case.

• EXCISE

PUNJAB HIGH COURT

Commissioner of Central Excise v. M/s Saraswati Rubber Works (P) Ltd. (Decided on 31.08.2010)

Indirect Tax - Shortage of finished goods and raw materials - Central Excise Act, 1944, Sections 2(b), 11A and 35G - Jurisdiction of Deputy Commissioner - Whether the Show Cause Notice in respect of shortages of finished goods and raw material issued by the Deputy Commissioner within period of 6 months from the date of detection of shortages was beyond his jurisdiction?

Held, relied on the Case Pahwa Chemicals Pvt. Ltd. vs. CCE  Court held the that order of the adjudicating authority could not be set aside on the ground that the work was allotted to a different officer under the circular of the Board Under Section 2(b) of the Act, 'Central Excise Officer' included any officer specified therein . Under Section 11A of the Act, 'Central Excise Officer' could deal with the matter. In view of definition of 'Central Excise Officer', the circular of the Board could not have the effect to nullify the statutory power under Section 11A of the Act . Appeal allowed by the Court and set aside the orders of the Commissioner and the Tribunal and remanded the matter to the Commissioner Central Excise for fresh decision on merits in accordance with law.