SUPREME COURT

• Direct Taxation

Vijay Kumar Talwar Vs. Commissioner of Income Tax, Delhi (Decided on 06.12.2010) MANU/SC/1027/2010

Appeal under Section 260A of the Income Tax Act, 1961 - Impugned order assailed on the ground that the Tribunal had taken into consideration irrelevant materials, its findings were perverse and, therefore, the High Court has erred in holding that there was no substantial question of law involved

Held, an appeal to the High Court from a decision of the Tribunal lies only when a substantial question of law is involved, and where the High Court comes to the conclusion that a substantial question of law arises from the said order, it is mandatory that such question(s) must be formulated.

In the instant case the High Court held to be correctly concluded that no substantial question of law arose from the order of the Tribunal. All the authorities below, in particular the Tribunal, observed in unison that the Assessee did not produce any evidence to rebut the presumption drawn against him under Section 68 of the Act, by producing the parties in whose name the amounts in question had been credited by the Assessee in his books of account. In the absence of any cogent evidence, a bald explanation furnished by the Assessee about the source of the credits in question viz., realisation from the debtors of the erstwhile firm, in the opinion of the assessing officer, was not satisfactory. Based on a conspectus of the factual scenario, noted above, the conclusion of the Tribunal to the effect that the Assessee has failed to prove the source of the cash credits cannot be said to be perverse, giving rise to a substantial question of law. The Tribunal being a final fact finding authority, in the absence of demonstrated perversity in its finding, interference therewith by this Court held to be as not warranted.

Accordingly, no question of law, much less any substantial question of law has arisen from the order of the Tribunal requiring consideration of the High Court. Appeals dismissed.

• Election Laws

Election Commission of India Vs. Telangana Rastra Samithi and Anr  (Decided on 03/12/2010) MANU/SC/1024/2010

Bye-elections in concerned Assembly Constituencies in the State of Andhra Pradesh - Writ petition allowed by the High Court by applying the literal rule of interpretation holding that the provisions of Section 151A of the Representation of the People Act, 1951 were mandatory and the pendency of election petitions and the uncertain consequences that might follow would not in any manner dilute its effect especially when the Speaker of the Assembly had already notified the vacancies as contemplated under Article 190(3)(b) of the Constitution read with Section 150 of the Representation Act - Whether Section 151A read with Sections 84, 98, 101 and 150 of the 1951 Act, mandatory or only directory and whether Section 151A is subject to Article 324 of the Constitution

Held, in Section 151A neither Section 84 nor Sections 98(c) and 101(b) have been mentioned. Instead, what is referred to are the casual vacancies referred to in Sections 147 and 149 to 150 in the State Legislative Assembly and the State Legislative Council. Section 151A prescribed a time limit within which a bye-election is to be held to fill up any vacancy referred to in Sections 147 and 149 to 151 of the 1951 Act. The Division Bench of the High Court was, therefore, was clearly wrong in coming to a finding that the non-obstante clause of Section 151A, which was not available, when the decision in D. Sanjeevayya's case was rendered, altered the whole legal scenario and rendered the decision in D. Sanjeevayya's case to be no longer good law as declared by this Court. Any other interpretation of Section 151A would render the provisions of Sections 84, 98(c), 101(b) and 8A of the 1951 Act otiose, which could not have been the intention of the Legislature, which would otherwise have clearly indicated as such in the proviso to Section 151A.

In a situation such as that contemplated by the latter half of Section 84 and its consequences as reflected in Sections 98(c), 101(b) and 8A of the 1951 Act, it cannot be said that a vacancy in such a situation would be a vacancy available for being filled up by a bye-election, particularly in a situation where allegations of corrupt practices have been made which, if proved, provides for disqualification under Section 8A of he said Act. Simply by submitting his resignation, a successful candidate against whom allegations of corrupt practices are made, cannot escape the consequences of Section 8A of the Act, if the same are ultimately found to be proved.

The 1951 Act is a complete Code for the conduct of elections by the Election Commission of India appointed under Article 324 of the Constitution which provides for superintendence, direction, control and conduct of elections to Parliament and to the legislature of every State and also of elections to the offices of President and Vice-President held under the Constitution. The provisions of Article 190(3)(b) of the Constitution have, therefore, to be read along with the provisions of the 1951 Act. Section 84 of the said Act cannot be rendered otiose by holding that all vacancies on account of the aforesaid provision of the Constitution become immediately available for being filled up by way of a bye-election. The same reasoning applies in regard to Section 151A of the 1951 Act and its impact on the latter part of Section 84 thereof. As has been mentioned hereinbefore, a proceeding under Section 84 has to run its full course, particularly for the purposes of Section 8A of the said Act.

Thus the introduction of Section 151A in the Constitution did not alter the position as far as the provisions of Section 84 and consequently 98(c) and 101(b) of the 1951 Act are concerned, since although a casual vacancy may have occurred within the meaning of Section 150 of the 1951 Act, those vacancies in which election petitions had been filed and were pending cannot be held to have become available for the purposes of being filled up within the time prescribed under Section 151A of the 1951 Act.

Article 190(3)(b) of the Constitution merely indicates that if a Member of a House of a Legislature of State resigns his seat by writing to the Speaker and such resignation is accepted, his seat shall become vacant. It does not introduce any element of compulsion on the Election Commission to hold a bye-election ignoring the provisions of Section 84 of the Act.

Appeal therefore allowed and the judgment and order of the High Court set aside.

• Labour and Industrial Laws

Kuldeep Singh Vs. G. M., Instrument Design Development and Facilities Centre and Anr. (Decided on 03.12.210) MANU/SC/1031/2010

Claim of reinstatement and consequential benefits - Claim of the workman was rejected on the ground of delay when the Labour Court concluded in categorical terms that the termination of the services of the workman by the Management without complying with the provisions of Section 25F of the Industrial Disputes Act illegal, null and void and deserves to be set aside - Correctness thereof under challenge

Held, there is no limitation prescribed for making reference to the Government under Section 10 of the Industrial Disputes Act. The expression `at any time', though seemingly without any limits, is governed by the context in which it appears. Ordinarily, the question of making a reference would arise after conciliation proceedings have been gone through and the Conciliation Officer has made a failure report. But the Government need not wait until such a procedure has been completed. In an urgent case, it can `at any time', i.e., even when such proceedings have not begun or are still pending, decide to refer the dispute for adjudication. However, this power is to be exercised reasonably and in a rationale manner. The particulars furnished clearly show that the Appellant/workman was fighting for his cause before the Management as well as with the State Government including the Chief Secretary and the Minister of the concerned Department.

There is no prescribed time limit for the appropriate Government to exercise its powers under Section 10 of the Act. It is more so in view of the language used, namely, if any industrial dispute exists or is apprehended, the appropriate government "at any time" refer the dispute to a Board or Court for enquiry. The reference sought for by the workman cannot be said to be delayed or suffering from a lapse when law does not prescribe any period of limitation for raising a dispute under Section 10 of the Act. The real test for making a reference is whether at the time of the reference dispute exists or not and when it is made it is presumed that the State Government is satisfied with the ingredients of the provision, hence the Labour Court cannot go behind the reference. It is not open to the Government to go into the merit of the dispute concerned and once it is found that an industrial dispute exists then it is incumbent on the part of the Government to make reference. It cannot itself decide the merit of the dispute and it is for the appropriate Court or Forum to decide the same.

However, in view of the explanation offered by the workman, in the case on hand, as stated and discussed by us in the earlier paragraphs, we do not think that the delay in the case on hand has been so culpable as to disentitle him any relief. Accordingly, the award set aside and appeal was allowed.

• Environment Laws

Ankur Gutkha Vs. Indian Asthama Care Society (Decided on 07.12.2010) MANU/SC/1037/2010

Use of plastic material in the sachets of gutkha, tobacco and pan masala - Order of restrain against thereof

Held, the concerned Ministries to approach National Institute of Public Health to undertake a comprehensive analysis and study of the contents of guthka, tobacco, pan masala and similar articles manufactured in the country and harmful effects of such articles. The Plastics (Manufacture, Usage and Waste Management) Rules, 2009 to be finalised, notified and enforced within eight weeks of the pronouncement of present order. The manufacturers of guthka, tobacco, pan masala are restrained from using plastic material in their sachets with effect from 1st March, 2011.

• Property Laws

Chatti Konati Rao and Ors. Vs. Palle Venkata Subba Rao (Decided on 07.12.2010) MANU/SC/1033/2010

Claim of adverse possession - Mere possession, however long does not necessarily mean that it is adverse to the true owner

Held, animus possidendi is a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until possessor holds property adverse to the title of the true owner for the said purpose. The person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and possession was open and undisturbed. A person pleading adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner and, hence, it is for him to clearly plead and establish all facts necessary to establish adverse possession. Plea of adverse possession is not a pure question of law but a blended one of fact and law.

• Criminal Laws

Balasaheb @ Ramesh Laxman Deshmukh Vs. State of Maharashtra and Anr. (Decided on 07.12.2010) MANU/SC/1034/2010

Whether protection under Article 20(3) of the Constitution is available to the Appellant, who though not an accused in the police case in which he has been asked to depose as a witness but figures as an accused in the complaint case filed later on in relation to the same incident.

Held, Protection under Article 20(3) of the Constitution does not extend to any kind of evidence but only to self-incriminating statements relating to the charges brought against an accused. Petitioner is a person accused of an offence within the meaning of Article 20(3), the only protection that Article 20(3) gives to him is that he cannot be compelled to be a witness against himself. In the Police case when he appears and asked to answer question, the answer whereof tends to incriminate him, he can refuse to answer the same pleading protection under Article 20(3) of the Constitution. In such eventuality the Court would decide the same. Therefore, at this stage the blanket protection sought by the Appellant is not fit to be granted.

HIGH COURT

• Criminal Laws

Bombay High Court

Ramu Appa Mahapatar Vs. The State of Maharashtra, (Decided on 02.12.2010) MANU/MH/1564/2010

Conviction for offence punishable under Section 302 of the Indian Penal Code, 1860 - Correctness thereof questioned on the ground that no direct evidence was adduced the prosecution and it was based on confessional statement of the Accused - Scope and effect of Confessional statement

Held, the legal principle as well settled lays down that the confession cannot be used against the accused person until Court is satisfied that it is voluntarily. In order to render a confession admissible it must be total voluntary and free from Police influence. The evidence adduced by the prosecution in the instant case clearly shows that the extra judicial confession made by the Appellant was totally voluntary and not under any pressure, which is also corroborated by the circumstances established by the prosecution. The evidence relied upon by the prosecution hence cogent and trustworthy and therefore the conviction is just and proper.

• Intellectual Property Laws

Delhi High Court

Jain Electronics Vs. Cobra Cables P. Ltd. and Ors. (Decided on 30.11.2010) MANU/DE/3233/2010

Application of Registration of Trademark - Rejection thereof on the ground of it being identical and could cause deception - Hence this appeal

Held, mark of Respondent No. 1 being identical and being registered in the forum, acceptance of the application of the Petitioner for the same mark would cause confusion and, therefore, could not be allowed. It was held that triple identity test, i.e., the mark being identical, the goods being of same description and the area of sale or the sales channel being the same stood satisfied. Grant of registration in respect of an identical mark in favour of the Petitioner would cause deception and confusion.

• Constitutional Laws

Delhi High Court

All India Researchers' Coordination Committee and Ors. and Sarika Chaudhary Vs. Union of India (UOI) and Ors. (Decided on 06.12.2010) MANU/DE/3268/2010

Constitutional validity of UGC (Minimum qualifications required for the appointment and career advancement of Teachers in Universities and Institutions affiliated to it) (3rd Amendment), Regulation, 2009 as framed by UGC under challenge

Held, the quality of teaching in higher education is a matter of great concern and, the standards of education in Universities and other institutions of higher learning have to be improved substantially. The prescription of NET as an entry bar for being considered for appointment as a teacher has been placed in order to ensure a certain modicum of quality screening so that persons of quality enter the academic profession. Confining the exemption to only those Ph.D. degree holders who had been awarded the Ph.D. degrees in compliance with University Grants Commission (Minimum Standards and Procedure for Award of Ph.D Degree), Regulation, 2009 has a rational relation with the objective that the impugned Regulations seek to achieve and, therefore, the impugned Regulations, 2009 are neither arbitrary nor irrational and, therefore, are not violative of Article 14 of the Constitution of India.

• Tenancy Laws

Calcutta high Court

Milan Kanti Dutta Vs. Md. Aminul Iqbal and Ors. (Decided on 30.11.2010) MANU/WB/0650/2010

Service of Notice - Judgment challenged on the ground that notice of ejectment returned with postal remark "not claimed" and hence the notice was never tendered - Whether "not claimed" cannot be treated as good service.

Held, landlords have made all the legal heirs of the father of the present Appellant/Defendant No. 4 party Defendants in the suit of ejectment. Notice of ejectment was amply proved to be served on some of the legal heirs of the father of the Appellant Defendant No. 4, it has to be accepted that there is proper service of notice upon Defendant No. 4 also being joint tenants. Moreover, the notice to quit sent under registered post with A/D has to be deemed to be served in view of the evidence of postal peon and the endorsement "not claimed" on the envelope of notice. Thus, notice to quit was duly served upon all the legal heirs of original tenant

• Labour and Industrial Laws

Delhi High Court

Greaves Cotton Ltd. Vs. Govt. of NCT of Delhi and Ors. - (Decided on 06.12.2010) MANU/DE/3267/2010

Exparte award already published - Whether Labour Court under obligation to dismiss the application for setting aside the ex parte award for want of jurisdiction

Held, the application was filed before the expiry of 30 days of the publication of the award and, therefore, rightly entertained by the tribunal and, the tribunal had jurisdiction to entertain the application and decide the same on merits. The contention that by the date the tribunal passed the order setting aside the ex parte order it had become functus officio does not merit consideration. The jurisdiction of the tribunal is to be seen on the date the application is made and not on the date on which it passed the impugned order.

• Arbitration Laws

Calcutta High Court

Rashmi Cement Limited Vs. Trafigura Beheer B. V. (Decided on 29.11.2010)

Interim measures by Court - whether the Court was justified in passing the interim order, which is an order in the nature of attachment before judgment.

Held, the dispute between the parties being one of breach of agreement for supply of goods for exportation, the remedy of the respondent now lies in getting damages if its allegations are found to be correct. Thus, no case was made out for passing an interim order directing attachment before award.

• Banking Laws

Bombay High Court

Mr. Rajesh Bhalchandra Chalke Vs. State of Maharashtra and Emco Dynatorq Pvt. Ltd. (Decided on 07.12.2010) (MANU/MH/1587/2010)

Issuance of process in complaint under Section 138 of the Negotiable Instruments Act, 1881 - Whether, a Metropolitan Magistrate taking up a complaint along with documents in support thereof and a verification made in the affidavit in support of the complaint still obliged to examine on oath the complainant and his witnesses before issuing process on the complaint.

Held, For the purpose of issuing process under Section 200 of the Code of Criminal Procedure, 1973, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under Section 138 of the Negotiable Instruments Act, 1881 and the Magistrate is not obliged to call upon the Complainant to remain present before the Court, nor to examine the complainant or his witnesses upon oath for taking the decision whether or not to issue process on the Complaint under Section 138. It is only if and where the Magistrate, after considering the complaint under Section 138 and the documents produced in support thereof and the verification in the form of affidavit of the complainant, is of the view that examination of the complainant or his witness is required, that the Magistrate may call upon the complainant to remain present before the Court and examine the complainant and/or his witness upon oath for taking decision whether or not to issue process on the complaint There is nothing wrong in the complainant under Section 138 filing the affidavit in support of the complaint in a format indicating all the essential facts satisfying the ingredients for the purpose of enabling the Magistrate to decide whether or not to issue process on the complaint.

TRIBUNALS

• Service Laws

Central Administrative Tribunal, Principle Bench, Delhi

Shyam & Ors Vs. Employees State Insurance Corporation Ltd. (Decided on 01.12.2010)

Recruitment against vacancies on a local/regional basis with Central Government - Postings also in accordance to regional basis - Contention raised that selection since made for the Delhi region, candidates would be required to work only within this region and therefore OBC candidates belonging to Delhi and coming under the OBC list of the Government of NCT of Delhi should be considered for appointment.

Held, the Government of NCT of Delhi included "Jat" community in the State list. This list is applicable for the employment under the State Government only. It would not apply for employment for any post under the Central Government. No relaxation can be made to give benefit of OBC category for employment for the posts in an institution under the Central Government.

• Consumer Laws

National Consumer Disputes Redressal Commission

Col. D. K. Kapur v. KLM Northwest Airlines (Decided on 30.11.2010)

Enhancement of the compensation - Petition for enhancement of compensation awarded by District forum and confirmed by State forum due to various deficiencies in service on the part of the Airlines during his air journey

Held, the finding of the District Forum on the Respondent Airlines' deficiency in service entirely justified. Further, the mental and physical harassment that a passenger would undergo, would certainly amount to "injury" within the meaning of the term under section 14 (1)(d) of the Consumer Protection Act, entitling him to compensation. The Respondents are guilty of deficiency in service, viz., inexplicable delay and consequent harassment and the Petitioner is entitled, in the given facts and circumstances, to a reasonable compensation for the obvious deficiencies in service on the part of the Respondent Airlines.

• Direct Taxation

ITAT, MUMBAI

Atul A. Sanghvi Vs. ACIT, Central Circle - 11, Mumbai

Challenge of penalty order u/s 271(1)(b) of the Income Tax Act, 1961 on the ground that facts and circumstances of the case were not appreciated

Held, no penalty shall be levied if the assessee proves that there was a reasonable cause for failure on the part of the assessee, which was beyond his capacity. The action of the Assessing Officer in imposing the penalty on alleged default on one date of even dated notice by treating seven defaults is also highly unjustified. The explanation given by the assessee for non compliance of the notice is a reasonable and bona fide.