SUPREME COURT

• TRUSTS AND SOCIETIES

Trambakeshwar Devasthan Trust and Anr Vs. President, Purohit Sangh and Ors (Decided on 13.10.2011) MANU/SC/1235/2011

Appointment - Challenge thereto - Additional District Judge passed an order that Appellant's apprehension that Tungars and Purohits if appointed as trustees are bound to look after their well being first and divert the attention of the devotees was well-founded and accordingly allowed the appeal and set aside the appointment of one of the Tungars and one of Purohits as trustees - On Appeal, High Court held that Tungars, Purohits as well as Pujaris should get representation in the trust and allowed the appeal in part and modified the composition of the trust - Hence, present Appeals

Held, disqualification was mainly of an individual and could not be because of the fact that the person belongs to the family of "Tungar", 'Pujari" or "Purohit"as such as the case might be. A person could be said to be disqualified or would render himself unfit for being appointed as the trustees only when he had direct interest in the trust or "devasthan" and was hostile to the affairs of the Trust and his object to see that the Trust was destroyed. This mandate flows from the provisions of Section 47 read with Section 2(1) of the Bombay Public Trusts Act. Therefore, merely because the "Tungars" have the right to take away the entire cash offerings in the form of notes or coins near the idol or the threshold of the Garbhagriha in a plate or that the "Purohits" enter the Yajmans or offer their services for consideration of the 'Pujaris" are engaged in the performance of the official puja of the temple, could not be said to be hostile to the affairs of the trust or having direct interest so as to conflict with the administration and management of the Trust. Thus, it was incomprehensible that "Tungars", "Pujaris" or "Purohits" in the devasthan could be singled out as a class from the administration and management of Trust. Further, this Court was of the view that most of decisions of the Board of Trustees, there would not be a conflict of interest between that of the Trust and that of the "Tunagars", 'Purohits" and "Pujaris". Rather their representation would help in the smooth functioning of the Trust. Hence, to ensure that public interest was protected in all the decisions of the Board of Trustees it was held that instead of two persons, four persons would be appointed by Charity Commissioner from amongst male/female, adult Hindu devotees who would represent the public in the Board of Trustees.

• MOTOR VEHICLES LAWS

United India Insurance Co. Vs. Shila Datta and Ors (Decided on 13.10.2011) MANU/SC/1256/2011

Liability of Insurer - Reimbursement - Matter referred to a larger bench of this Court for consideration of the issue regarding liability of the insurer to reimburse the insured on two premises namely, just compensation and whose liability would be to pay as envisaged under Section 149(1) of the Motor Vehicles Act, 1988 vis-a-vis right of aggrieved persons to prefer an appeal in terms of Section 173 of Act had not been considered in the backdrop of history in which Section 149(1) was enacted

Held, An Insurer if aggrieved against an award may file an appeal only on those grounds and no other. However, by virtue of Section 170 of 1988 Act where in course of enquiry the Tribunal may for reasons recorded in writing implead the Insurer and in that case it was permissible for the Insurer to contest the claim also on the grounds which were available to Inured or against whom claim has been made. Thus, unless an order was passed by the Tribunal permitting the Insurer to avail the grounds available to the Insured or any other person against whom a claim has been made on being satisfied of the two conditions laid down in Section 170 of Act, it was not permissible to the Insurer to contest the claim on the grounds which were available to the Insured or to a person against whom a claim had to be made. Thus, where conditions precedent in Section 170 were satisfied and award was adverse to the interest of the Insurer, the Insurer had a right to file an appeal challenging quantum of compensation or negligence or contributory negligence of the offending vehicle even if the Insured had not filed any appeal against the quantum of compensation. Sections 149, 170 and 173 were part of one Scheme and if this Court gave any interpretation to Section 172 of 1988 Act, the same would go contrary to the scheme and object of the Act.

• PROPERTY LAWS

Suraj Lamp and Industries Ltd Vs. State of Haryana and Anr. (Decided on 11.10.2011) MANU/SC/1222/2011

Immovable Property - Creation of title - Present Special Leave petition filed wherein by an earlier order reported in Suraj Lamp and Industries Ltd Vs. State of Haryana (MANU/SC/1021/2009), this Court had referred to ill-effects of what is known as General Power of Attorney or Sale Agreement/General Power of Attorney/Will transfers - Both descriptions were misnomers as there could not be a sale by execution of a power of attorney nor could there be a transfer by execution of an agreement of sale and power of attorney and will - As noticed in earlier order such transactions were evolved to avoid prohibitions/conditions regarding certain transfers, to avoid payment of stamp duty and registration charges on deeds of conveyance to avoid payment of capital gains on transfers, to invest unaccounted money and to avoid payment of 'unearned' increases due to Development Authorities on transfer

Held, a General Power of Attorney/Sale Agreement or Will transfers do not create any title or create any interest in an immovable property. Therefore, immovable property could be legally and lawfully transferred/conveyed only be a registered deed of conveyance. Courts would not treat transactions such a General Power of Attorney as completed or concluded transfers or as conveyances as they neither convey title or create any interest in an immovable property. They could not be recognised as deeds of title except to the limited extent of Section 53-A of Transfer of Property Act, 1882. Hence, the Special Leave Petition has been listed for final disposal.

• CRIMINAL LAWS

The State of West Bengal and Ors Vs. Sk. Nazrul Islam (Decided on 13.10.2011) MANU/SC/1257/2011

West Bengal Administrative Tribunal passed an order by which it declined to grant relief of appointment in Respondent's favour - This order was challenged by Respondent before High Court and it held that authorities were not entitled to withold offer of appointment to the Respondent and directed authorities to issue an appointment letter in his favour without any delay - However, it further observed that Respondent's appointment to the post of constable would abide by final decision of the pending criminal case - Hence, the present Appeal

Held, Court failed to appreciate how when a criminal case under Sections 148, 323, 380 , 427 and 596 of IPC against Respondent was pending in the Court of Chief Additional Judicial Magistrate, any mandamus could have been issued by the High Court to the authorities to appoint the Respondent. Surely the authorities entrusted with the responsibility of appointment were under duty to verify the antecedents of a candidate to verify whether he was suitable for the post of constable and so long as the candidate was not acquitted in the criminal case he could not be held suitable for appointment to the said post.

• ELECTION LAWS

The Bar Council of Maharashtra and Goa Vs. Manubhia Paragji Vashi and Ors (Decided on 13.10.2011) MANU/SC/1233/2011

Election - Challenge thereto - Present Special Leave Petition filed against order of High Court which relate to elections to the Bar Council of Maharashtra and Goa

Held, Once it is ruled by the present court that Rules 6(h) and 32 (g) of State Bar Council Rules are ultra-vires the Advocates Act, 1961, the fact that Bar Council of India had approved the two provisions made by State Bar Council under Section 15(3) of the Act will not validate Rules 6(h) and 32(g) of State Bar Council Rules. Hence, the Special Leave Petitions are dismissed

• EXCISE LAWS

Grasim Industries Ltd Vs. Union of India (Decided on 13.10.2011) MANU/SC/1231/2011

Levy of Excise Duty - Requirement of - Present Appeal filed against order of High Court by which it set aside order of Customs, Excise and Service Tax Tribunal whereby Tribunal had dropped the entire duty demand and penalty imposed on Assessee

Held, for a deeming provision to come into play it must be specifically stated that a particular process amounts to manufacture. In the absence of it being so specified the commodity would not become excisable merely because a separate tariff item exists in respect of that commodity. In this case neither in the section note nor in the chapter note nor in tariff item does this Court find any indication that the process indicated is to amount to manufacture. To start with the product was edible vegetable oil. Even after refining it remained edible vegetable oil. An actual manufacture had not taken place The goods have to satisfy the test of being manufactured in India. It is settled law that excise duty is a duty levied on the manufacture of goods. Unless goods are manufactured in India they could not be subjected to payment of excise duty. Simply because an item was mentioned in First Schedule it would not become eligible for excise duty. Appeal allowed

• COMMERCIAL LAWS

Union of India(UOI) and Anr. Vs. Association of Unified Telecom Service Providers of India and Ors (Decided on 11.10.2011) MANU/SC/1252/2011

Adjusted Gross Revenue - Interpretation of -Present appeal filed under Section 18 of Telecom Regulatory Authority of India Act, 1997 against the order of Telecom Disputes Settlement and Appellate Tribunal (TDSAT)

Held, there has not been an effective consultation with the TRAI which is mandatory in the TRAI Act, this Court thought that it should not further delve into the exercise of finding out which component of the AGR as defined by the Government in the terms of license deserved to be retained ad which component which the Petitioners contend was not derived from the licensed revenue of the licensee. Further this Court thought that the matter should be remanded back to the TRAI before whom the Government should produce the material relied by it while rejecting TRAI's recommendation so that TRAI could consider the same and send its conclusions to this Tribunal. Thereafter this Tribunal would have the benefit of a comprehensive recommendation of the TRAI after considering materials relied upon by the Government. Thus, the Tribunal decided on not only the interpretation of Adjusted Gross Revenue in the license but had decided on the validity of the definition of Adjusted Gross Revenue in the license. As had already been held Tribunal had no jurisdiction to decide on the terms and conditions of the license. Hence, matter is remitted back to Tribunal for fresh consideration. Appeal dismissed accordingly.

HIGH COURTS

• BANKING LAWS

ALLAHABAD HIGH COURT

Suresh Kumar Vs. State of U.P thru Secy and Ors (Decided on 10.10.2011) MANU/UP/2386/2011

Realisation of loan amount - Prayer for - Present writ petition filed by Respondent Bank for realization of loan amount under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interests Act, 2002 for the realization of loan amount

Held, As the Petitioner himself had volunteered to clear off the entire outstanding dues along with interest, penal interest and expenses on pro-rata basis in installments and had undertaken to pay the regular installments as and when they become due taking into consideration solemn undertaking by Petitioner as well as the consent given by counsel of the Bank, this Court considers it appropriate and in the interest of justice that a last opportunity be afforded to Petitioners to clear off outstanding dues in installments. The Respondent Bank was only interested in recovering the money and if the Petitioner was ready and willing to clear off the outstanding dues this Court sees no reason as to why Petitioner's property should be put to auction.

• LAND LAWS

ALLAHABAD HIGH COURT

Gajraj and Ors.  Vs. State of U.P. and Ors. [Alongwith Writ C Nos. 48089 of 2011, 37642 of 2011, 62649 of 2008 ............ ] (Decided on 21.10.2011)

Land acquisition - Large scale acquisition of agricultural and Abadi land of farmers of different villages of Greater Noida and Noida of District Gautam Buddha Nagar in the name of planned industrial development – It was alleged that State had wrongly invoked the provisions of Sections 17(1) and 17(4) of the Land Acquisition Act and the right of objection under section 5A was wrongly dispensed with hence, the entire acquisition proceedings deserved to be set aside 

Held, Balance in nature is necessary for survival of the Universe. Similarly balance in society is also essential for its survival. Economic aspect is one of the most important aspects of human society. For the sake of economic balance alongwith higher earning of upper section of the society, becoming higher and higher rapidly, good income/wages will have to be ensured to the lower section of the society. If on the acquired land profit earning activity is carried out then the person whose land has been acquired has got full right to have something like a share in the profit. It is for this reason that during recent past in different parts of the country there has been public opposition of various degrees to the land acquisition for the purposes of constructing dwelling units or establishing industries by private persons or non-governmental companies. It is apparent that now there is need to make necessary changes in the law of land acquisition in respect of secondary public purposes and it is noteworthy that Parliament is also responding promptly and it has given clear indications that it intends to modify Land Acquisition Act in near future by providing more to those persons whose lands are acquired.

• EDUCATION LAWS

DELHI HIGH COURT

Medical Council of India Vs. Teerthaker Mahaveer Institute of Management and Anr, Medical Council of India Vs. Rama Medical College Hospital and Research Centre Kanpur and Anr (Decided on 13.10.2011) MANU/DE/4003/2011

Bar on increase of seats - Question which arose before the Single Judge of this Court was whether Regulation 3(1) in Part II of 'The Opening of a New or Higher Course of Study or Training (including Post Graduate course of Study or Training) and Increase of admission capacity in any course of study or training (including a Post Graduate Course of Study and Training) Regulations, 2000 bars a college/institution running Bachelor of Medicine or Bachelor of Surgery course, to seek increase of seats till recognition is obtained by institution or college as per the requirement of Sub-section 1 of the Section 11 of the Indian Medical Council Act 1956 - Single Judge answered the same in favour of the writ petitioners - Hence, present Appeals

Held, normal rule of law was that where a taint takes place in a decision making process, this is the stage where the matter gets derailed and thus the requirement of removing the taint and putting the matter back on the track for the onward journey to be undertaken. Thus, the mandamus issued by this Court would read as a declaration of the entitlement of the writ petitioners to seek increase in the admission capacity from 100- to 150 seats in the MBBS course run by them coupled with a direction that the Board of Governors would process the matter further with reference to the inspection reports and such other relevant matters and take a final decision.

• INTELLECTUAL PROPERTY LAWS

The Indian Express Ltd Vs. Express Publications Madhurai Ltd and Ors (Decided on 10.10.2011) MANU/DE/3995/2011

Infringement of trademark - Application for injunction - Suit for injunction filed restraining Defendants from using the words 'The Indian Express", "New Indian Express", "Indian" "Express" or any associated, agnate and cognate or abbreviated terms or any logos covered by Plaintiff's registered trademark "Indian Express", "Express News Service", 'ENS" and or "the New Express Group" either by themselves or as a part of any word so as to infringe the Plaintiff's registered trademark or violate the rights granted in a certain decree

Held, In the instant case Defendants were expressly permitted to use the name "New Indian Express" though only in southern states and and Union Territories specified in the agreement between the parties and use of expression 'New Indian Express" in the manner it has so far been used by the Defendants was not likely to cause any confusion among the readers and there is no reasonable possibility of the newspaper "The Sunday Standard" being passed off as a newspaper belonging to Indian Express Group. Hence, no valid ground for grant of injunction has been found to the Plaintiff

• LABOUR AND INDUSTRIAL LAWS

BOMBAY HIGH COURT

Municipal Corporation Vs. Smt Pratibha Kashinath Gajbhiye and Kiran Kashinath Gajhbhiye (Decided on 12.10.2011) MANU/MH/1281/2011

Compensation - Challenge thereto - Present Appeals filed against order of Commissioner under Workmen Compensation Act whereby compensation was awarded to Respondent/Employees with interest at 12% p.a after a month from the date of accident

Held, present Court was bound to follow the decision in Pratap Narain Singh Deo as it was given by four judges of the Apex Court. Hence, in the light of this decision this Court was bound to hold that compensation was payable from after one month of date of accident and not from the date when adjudication was done by Commissioner under Workmen Compensation Act.

Smt. Vijaya Nipun Thakkar, Smt Chandraben Ishwardas Thakkar, Nipun Ishwardas Thakkar and Jitendra Vasani Vs. The Municipal Corporation of Greater Mumbai (Decided on 11.10.2011) MANU/MH/1277/2011

Default in payment of property tax - Present petition filed takes exception to the warrant of attachment and the said warrant of attachment came to be issued as there was a default in the payment of property tax for two periods mentioned in original warrant of attachment- Hence, the present Rule

Held, So far as the period upto the full occupancy period was concerned, in this Court's view it would be liability of erstwhile owners to discharge the said obligation of property tax to Respondent No.1. Further so far as period beyond this occupancy period was concerned this Court was of the view that since it was Petitioner's case that they have the property tax on a pro rata basis for the premises of their occupation they can make their application to the Assessor and Collector of Corporation by invoking Section 209 of the Act for issuance of separate bills in respect of each of premises in question in the building. On receipt of this application Respondent Corporation was directed to pass orders invoking Section 209 of the said Act. Rule made absolute.

• Intellectual Property Rights

Bombay High Court

Yash Patnaik and another Vs. Red Chillies Entertainment Pvt. Ltd. and Others, decided on 21.10.2011

Copyright violations alleged against the movie Ra.one – Claim over concept embodied in the concept note including the materials graphics, illustrations and drawings, monograms and the scenes and the pictures of the flying robots in the gadgets

Held, the undisputed averments in the plaint indicated that the first plaintiff had handed over the concept note and the other material to defendant No.4 in November/December 2006 and defendant No.4 had encouraged the first plaintiff to further develop and submit more detailed characters, outdoor designs etc. for the project. No reply to notice of motion filed by any of the defendants filed. It was particularly when the first plaintiff found that the promotion of the film as per the posters and publicity materials of the film indicated the name of defendant No.4 as screen play writer of the film that the first plaintiff immediately realised that the defendants were acting upon the concept note and the material supplied by the first plaintiff to defendant No.4. In fact, it was in one of the recently released thearitical promos to the plaintiffs' notice where the lead character of the film stands on a highrise overlooking the cityscape with the water body in the foreground which was the same as the end page in the plaintiffs' concept note. 

In view of the uncontroverted averments in the plaint, it was held that the appellant-plaintiff has, at this stage, satisfactorily answered both the objections of the defendants which had commended to the learned trial Judge. The efforts put in by the first plaintiff commencing from 2002 including the concept note and the development of the concept and the story line by the plaintiff sufficient to confer upon the first plaintiff the copyright in the concept note and the other material developing the said concept which prima facie appears to have been relied upon by the defendants for making the film RA One.

Injunction as sought was granted and the defendants also without prejudice to their rights and contentions to deposit Rs.1 crore with the Court. The undertaking given by defendants was accepted. 

TRIBUNALS

• RIGHT TO INFORMATION

CENTRAL INFORMATION COMMISSION DELHI

Shri Rakesh Kumar Gupta Vs. The Central Public Information Officer and The Appellate Authority, Director of Income Tax (Intelligence) (Decided on 10.10.2011) MANU/CI/2315/2011

Denial of Information - Challenge thereto - Application filed for an RTI request with Director of Income Tax seeking detailed information against five specific points about tax evasion petition received by DGIT and also year wise reward paid to employees of income tax and informers till date by the DIT - Further, Applicant also sought information on record along with copies on record identified on inspection - Competent Authority responded to the Application providing information about the first three issues and denying information about the other two issues - While denying information the Competent Authority said that no reward had ever been disburses by their office and also that reports about the tax evasion had been already sent to assessment charges - First Appeal filed wherein the Appellate Authority upheld the decision of the lower authority on the ground that decision in Bhagat Singh's case was distinguishable and not applicable in the instant case - Hence, present Second Appeal filed in the Central Information Commission

Held, in the instant case wherein the information is provided by the Assessee who is under scrutiny to the DIT official, no benefit could be seen to accrue to the Assessee. Such information was clearly being given under pressure to the DIT official and there was no element of choice left with the Assessee. The information though confidential in nature could not therefore be construed as being held in a fiduciary relation by DIT. Hence, exemption from disclosure of information under Section 8(1)(e) of the Right to Information Act, 2005 was definitely not applicable in the present case. Further, it was held that Respondent Authority was conducting an enquiry which had yet to reach a finality to be completed at the next stage by the Appraising Officer and hence information at the DIT level was exempt from disclosure under Section 8(1)(h) of Act. This was because a preliminary enquiry report prepared by Respondent authority after conducting an initial assessment which was only a tentative report could not be disclosed by Respondent under Section 8(1)(h) of Act. Hence, information sought by Applicant could not be divulged in view of the aforesaid. Appeal dismissed.

• DIRECT TAXATION

ITAT HYDERABAD

Chida Spinning Mills Vs. The ACIT (Decided on 13.10.2011) MANU/IH/0257/2011

Validity of rectification order - Challenge thereto - Appeal filed before Commissioner of Income Tax 9CIT ) under Section 154 of Income Tax Act, 1961 against order passed by Joint Commissioner of Income Tax - As a result of the rectification the Assessing Officer (AO) has disallowed wrong claim of depreciation on assets which have been used for less than 182 days - Rectification orderso passed has resulted in additional tax demand of Rs. 51,19412 - CIT dismissed the Appeal - Hence the present Appeal

Held, after having applied the ratio of Siddharth Tubes Ltd v. CIT to the present case, court held that Assessing Officer (AO) did not have jurisdiction to rectify the assessment order which has been the subject matter in KVSS in which declaration made by Assessee had been accepted and the tax as determined by the determined authority under Section 90(1) of the Income Tax Act, 1961 has been paid by the Assessee. As a result addition made by Assessing Officer is deleted. Appeal allowed.