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2009 (4) TMI 1068
1. The core legal issues considered in the judgment include: (i) Whether 467 vacancies, which arose due to retirement, resignation, and death up to 30.6.2003, could be reserved for Scheduled Castes, Scheduled Tribes, and Other Backward Classes along with 371 carry-forward vacancies in advertisement No. 37 of 2003. (ii) Whether the 467 vacancies were rightly reserved without being earlier advertised or offered to General Category candidates. (iii) What constitutes a unit for applying the Rules of Reservation according to the 1994 Act and the roster framed thereunder? (iv) Whether reservation should be applied by consolidating all vacancies of Lecturers in different degree/postgraduate colleges. (v) Whether in case each college is treated as a separate unit, the reservation should be applied by clubbing all sanctioned posts of Lecturers in a college or subject-wise. (vi) Whether advertisement No. 37 is in accordance with the 1994 Act and whether the number of carry-forward vacancies, i.e., 371, has been correctly determined. (vii) What is the minimum number of posts in a cadre for the applicability of the roster issued under Sub-section (5) of Section 3 of the 1994 Act? 2. Issue-wise detailed analysis: (i) & (ii) The Court found that the 467 vacancies, which arose due to retirement, resignation, and death, were not backlog vacancies and could not be reserved solely for reserved category candidates without being previously advertised. The Court held that the State's action in clubbing these vacancies with carry-forward vacancies violated Articles 14 and 16(1) of the Constitution of India. (iii) & (iv) The Court concluded that the unit for applying the Rules of Reservation should be college-wise and subject-wise, rather than consolidating all vacancies across different colleges. The Court emphasized that each subject in a college should be treated as a separate unit for applying reservation. (v) The Court rejected the argument that all posts in a college could be clubbed together for applying reservation. It held that reservation and roster should be applied subject-wise in a college. (vi) The Court found that advertisement No. 37 was not in accordance with the 1994 Act as it included 467 vacancies that were not backlog vacancies. The Court directed the Director of Higher Education to re-determine the number of vacancies against which the select list should be issued by applying reservation and roster subject-wise and college-wise. (vii) The Court determined that for applying the roster, there should be at least five posts in a cadre. In a cadre with three or fewer posts, no post can be reserved for any category. In a cadre with four posts, one post can be reserved for Other Backward Classes, and in a cadre with five posts, one post can be reserved for Scheduled Castes and one for Other Backward Classes. 3. Significant holdings: The Court held that the advertisement No. 37 was impermissible insofar as it included 467 vacancies that were not backlog vacancies. The Court directed that the selection process for 371 carry-forward vacancies should be taken to its logical end, subject to re-determination of reserved vacancies by applying reservation and roster subject-wise and college-wise. The Court also quashed the Government order dated 3.7.2002, which directed computation of reservation based on entire cadre strength instead of vacancies. The Court emphasized the principle that reservation should be applied subject-wise in a college, and not by consolidating vacancies across different colleges. The Court reiterated the necessity of adhering to the percentage of reservation as prescribed under Section 3(1) of the 1994 Act and held that the roster should be applied in a manner that does not exceed the prescribed percentage of reservation.
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2009 (4) TMI 1067
1. ISSUES PRESENTED and CONSIDERED The core legal questions considered in this judgment are: - Whether the compromise partition of land effected in 1979, subsequent to the notification under Section 11(1) of the Maharashtra Resettlement of Project Displaced Persons Act, 1976, is valid or void ab initio.
- Whether the legislative intent of Section 12 of the Resettlement Act overrides the retroactive application of a compromise partition.
- Whether a compromise agreement can override statutory provisions that prohibit land transfers post-notification.
2. ISSUE-WISE DETAILED ANALYSIS Issue 1: Validity of the Compromise Partition - Relevant legal framework and precedents: Section 12 of the Resettlement Act prohibits any land transfers, subdivisions, or partitions after the publication of a notification under Section 11, unless permitted by the State Government. The legal precedent from Addagada Raghavamma And Anr. v. Addagada Chenchamma And Anr. discusses the retroactive effect of a partition.
- Court's interpretation and reasoning: The Court interpreted Section 12 as rendering any transfer or partition void if conducted after the notification under Section 11, emphasizing the legislative intent to prevent such actions post-notification.
- Key evidence and findings: The compromise partition was effected in 1979, after the 1978 notification under Section 11(1), making it void under Section 12.
- Application of law to facts: The Court applied Section 12 to conclude that the 1979 partition was void, as it occurred post-notification and without State Government permission.
- Treatment of competing arguments: The appellant argued for the retroactive application of the partition based on the 1967 suit filing. However, the Court emphasized the clear legislative intent of Section 12, which overrides such retroactivity.
- Conclusions: The compromise partition is void due to the statutory prohibition on land transfers post-notification.
Issue 2: Legislative Intent vs. Retroactive Application - Relevant legal framework and precedents: The Court referenced the principle that legislative intent can override the retroactive application of agreements, as discussed in the State of Punjab v. Amar Singh case.
- Court's interpretation and reasoning: The Court found a clear legislative intent in Section 12 to prohibit land transfers post-notification, which takes precedence over any retroactive claims from a compromise.
- Key evidence and findings: Section 12 explicitly voids any partition post-notification, demonstrating legislative intent to prevent such actions.
- Application of law to facts: The Court applied the legislative intent of Section 12 to dismiss the appellant's argument for retroactive application of the partition.
- Treatment of competing arguments: The appellant's reliance on retroactivity was countered by the statutory prohibition in Section 12, which the Court found to be decisive.
- Conclusions: Legislative intent in Section 12 overrides any retroactive application of the partition.
Issue 3: Compromise Agreement vs. Statutory Provisions - Relevant legal framework and precedents: The Court cited State of Punjab v. Amar Singh to highlight that agreements cannot contravene statutory prohibitions.
- Court's interpretation and reasoning: The Court emphasized that statutory prohibitions on land transfers post-notification cannot be overridden by private agreements or compromises.
- Key evidence and findings: The statutory prohibition in Section 12 was found to be clear and decisive, rendering the compromise agreement ineffective.
- Application of law to facts: The Court applied the principle that statutory law prevails over private agreements, invalidating the compromise partition.
- Treatment of competing arguments: The appellant's argument that the compromise should be binding was dismissed in light of statutory prohibitions.
- Conclusions: The compromise agreement cannot override the statutory prohibition on land transfers post-notification.
3. SIGNIFICANT HOLDINGS - Preserve verbatim quotes of crucial legal reasoning: "It is, therefore, obvious that where the statute itself is against a transfer, it is the statute which will pre-dominate vis-a-vis any other consideration."
- Core principles established: Legislative intent as expressed in statutory provisions overrides retroactive claims from private agreements. Statutory prohibitions on land transfers post-notification are decisive and cannot be circumvented by compromise agreements.
- Final determinations on each issue: The compromise partition is void due to the statutory prohibition in Section 12 of the Resettlement Act. Legislative intent prevails over retroactive applications of agreements. Private agreements cannot contravene statutory prohibitions.
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2009 (4) TMI 1066
Issues:
Jurisdiction of civil court under SEBI Act, maintainability of suit, applicability of Section 15-Y of SEBI Act, interpretation of Section 15-I of SEBI Act, Company Law Board's jurisdiction.
Analysis:
The civil revision petition challenged the trial court's order on an additional issue regarding the court's jurisdiction, where the trial court held it lacked jurisdiction to entertain the matter. The plaintiff sought a declaration that the transfer of shares to the 2nd defendant was illegal, alleging fraud, cheating, and forgery. The trial court considered the provisions of Sections 15-Y and 15-I of the SEBI Act and concluded the suit was not maintainable due to the bar in Section 15-Y.
The petitioner argued that the trial court erred by not considering whether the relief sought fell under Section 15-I of the SEBI Act before dismissing the suit based on Section 15-Y. The respondent relied on Section 111-A of the Companies Act, claiming the suit's subject matter falls under the Company Law Board's jurisdiction. After reviewing the arguments and relevant provisions, the court had to determine the validity of the trial court's decision.
Section 15-Y of the SEBI Act states that civil courts lack jurisdiction over matters within the SEBI Act's adjudicating officer or Securities Appellate Tribunal's purview. Section 15-I specifies the matters subject to adjudication under the SEBI Act. The court noted that the trial court failed to assess whether the suit's subject matter aligned with the sections specified in Section 15-I before invoking Section 15-Y. Without such examination, the trial court's decision based solely on Section 15-Y was deemed legally unsustainable.
Consequently, the court decided to remand the matter to the trial court for fresh consideration in light of the observations made. The trial court was instructed to evaluate the suit's subject matter in connection with the relevant provisions of the SEBI Act outlined in Section 15-I. Only after such assessment could the trial court determine the suit's maintainability under the SEBI Act.
In conclusion, the revision petition was allowed, setting aside the trial court's order. The matter was remitted to the trial court for a reevaluation based on the SEBI Act provisions, with directions to issue a new order after hearing both parties, if necessary.
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2009 (4) TMI 1065
Issues Involved:
1. Destruction of public and private properties during agitations.
2. Amendments to the Prevention of Damage to Public Property (PDPP) Act.
3. Liability of leaders of organizations calling for direct actions.
4. Use of videography for evidence collection.
5. Guidelines for police and state government during demonstrations.
6. Connection between tort and crime in the context of protests.
7. Media's role and self-regulation principles.
Issue-Wise Detailed Analysis:
1. Destruction of Public and Private Properties During Agitations:
The Supreme Court initiated suo motu proceedings due to widespread destruction of properties during agitations, bandhs, and hartals. Two committees were formed to address this issue, headed by Justice K.T. Thomas and Mr. F.S. Nariman, respectively. The Court took a serious note of the situation, emphasizing the need for stricter legal frameworks to prevent such incidents.
2. Amendments to the Prevention of Damage to Public Property (PDPP) Act:
The Justice K.T. Thomas Committee recommended amendments to the PDPP Act to include a rebuttable presumption of guilt for the accused once the prosecution establishes that public property was damaged during a direct action. The committee suggested that the burden of proof should shift to the accused to prove their innocence. This recommendation aims to strengthen the legal provisions to hold individuals accountable for property destruction.
3. Liability of Leaders of Organizations Calling for Direct Actions:
The Committee proposed that leaders of organizations calling for direct actions should be deemed guilty of abetment if public property is damaged. It was noted that top leaders often instigate such actions while remaining in the background. The recommendation includes provisions to protect innocent leaders while holding culpable leaders accountable, thus preventing the escalation of such incidents.
4. Use of Videography for Evidence Collection:
The Committee recommended enabling police officers to arrange videography of activities damaging public property. This includes maintaining a panel of local video operators for quick deployment. The recorded evidence should be authenticated and preserved for trial purposes. This measure aims to provide concrete evidence in trials under the PDPP Act, reducing unmerited acquittals.
5. Guidelines for Police and State Government During Demonstrations:
The Court laid down guidelines for preventive action during demonstrations. Organizers must coordinate with police to ensure peaceful protests, prohibiting weapons and providing undertakings for peaceful conduct. The police are tasked with videographing protests and reporting incidents to the state government, which should file petitions in higher courts for suo motu action if necessary. These guidelines aim to maintain public order and accountability during protests.
6. Connection Between Tort and Crime in the Context of Protests:
The Nariman Committee highlighted the overlap between tort and criminal law, emphasizing the deterrent function shared by both. The Committee suggested that individuals causing damage during protests should be strictly liable for damages, echoing principles from landmark cases like M.C. Mehta v. Union of India. The Court was urged to evolve new principles of liability to address vandalism and rioting effectively.
7. Media's Role and Self-Regulation Principles:
The Nariman Committee proposed self-regulation principles for the media, emphasizing impartiality, objectivity, and responsible reporting, especially during protests. The Committee discouraged content regulation beyond existing statutes and encouraged the media to adopt self-regulatory codes. The Court acknowledged the importance of media responsibility and suggested that these principles be explored further, without imposing statutory regulations.
Conclusion:
The Supreme Court accepted the recommendations from both committees, emphasizing the need for legislative amendments and guidelines to prevent property destruction during protests. The Court recognized the role of media and the importance of self-regulation. The judgment reflects a comprehensive approach to addressing the challenges posed by agitations, balancing legal accountability, media freedom, and public order.
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2009 (4) TMI 1064
Penalty imposed u/s 271(1) if returned income is a loss - CIT(A) deleted penalty levied holding that the issue is covered with the decision of the Hon'ble Supreme Court in the case of Virtual Soft Systems Ltd. [2007 (2) TMI 147 - Supreme Court and as the returned income and assessed income in these cases are a loss figure, the penalty u/s. 271(1)(c) cannot be imposed - HELD THAT:- We find that the decision of the Hon'ble Supreme Court in the case of Virtual Soft Systems Ltd. (supra) stands over ruled with the decision of the Apex Court in the case of CIT v. Gold Coin Health Food Pvt. Ltd. [2008 (8) TMI 5 - Supreme Court.
However, since the penalties imposed u/s. 271(1)(c) in these cases were not decided on the merits thereof and the CIT(A) has recorded that there is no need to adjudicate the issue on merits of the case in view of the decision in the case of Virtual Soft Systems Ltd. (supra), we hold that it shall be in the interest of justice to set aside the issue in all these appeals to the file of CIT(A) with direction to adjudicate the appeals of the assessee de novo, on merits, after affording reasonable opportunity of being heard to the parties.
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2009 (4) TMI 1063
Issues involved: Whether an arbitrator appointed u/s 84 of the Multi State Cooperative Societies Act has jurisdiction to entertain a claim against a non-member acceptor of a bill of exchange based on the membership of the drawer.
Summary:
The case involved a dispute where a nationalized bank (petitioner) and a Multi State Cooperative Bank (respondent No. 1) were parties to bills of exchange drawn by a member of the cooperative bank (respondent No. 2) and accepted by another entity (respondent No. 3) with the petitioner as a co-acceptor. The dispute arose when the bills were dishonored, leading to arbitration under Section 84 of the Act. The arbitrator held the respondents jointly liable to pay the amount of the bills to the cooperative bank. The petitioner challenged the award on the grounds of lack of jurisdiction.
The petitioner argued that as non-members, they should not have been subject to arbitration under the Act. The respondent No. 1 contended that the dispute fell under Section 84(1)(b) as the respondents were claiming through the member who drew the bills. The court analyzed Section 84(1)(b) and concluded that the dispute must involve members or those claiming through members for arbitration under the Act.
The court further examined the liability of parties under the bills of exchange, citing Section 37 of the Negotiable Instruments Act. It clarified that the acceptor and co-acceptor were principal debtors, not claiming through the drawer. As the respondents were not members or claiming through a member, the court held that the arbitrator lacked jurisdiction to pass the award against them.
The court rejected the argument that once a dispute is referred, the arbitrator automatically gains jurisdiction. It emphasized that jurisdiction cannot be conferred by consent and that the arbitrator's jurisdiction in this case was based on incorrect assumptions. Therefore, the court set aside the award, ruling in favor of the petitioner.
In conclusion, the court allowed the petition, set aside the award, and directed each party to bear their own costs.
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2009 (4) TMI 1062
Issues Involved:
1. Role of respondents in sanctioning loans.
2. Status of respondents as "public servants" under the Prevention of Corruption Act, 1988.
3. Jurisdiction of the High Court in revisional powers.
4. Applicability of the M.P. Co-operative Societies Act, 1960.
Summary:
1. Role of Respondents in Sanctioning Loans:
The respondents, as Directors and members of the Loan Committee of Indore Premier Co-operative Bank Limited, were accused of sanctioning loans amounting to Rs. 56,50,000/- without verifying the eligibility of the borrowers. The Trial Court found a prima facie case against the respondents and directed framing of charges u/s 409, 420, and 120B IPC, and Sections 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. The High Court, however, concluded that the respondents had acted based on the groundwork done by the Branch Managers and Executive Officer, and thus, could not be said to have acted illegally. The Supreme Court disagreed, noting that the Inquiry Report suggested the respondents had connived in defrauding the Bank.
2. Status of Respondents as "Public Servants":
The High Court held that the respondents could not be treated as public servants based on the judgment in State of Maharashtra v. Laljit Rajshi Shah and Ors. The Supreme Court, however, found this view erroneous, noting that the definition of "public servant" u/s 2(c)(ix) of the Prevention of Corruption Act, 1988, had a wider connotation than the definition in the 1947 Act. The respondents, as office bearers of a registered Co-operative Society engaged in banking, fell within this definition.
3. Jurisdiction of the High Court in Revisional Powers:
The Supreme Court held that the High Court had erred in re-assessing the factual position and quashing the charges framed by the Trial Court. It was emphasized that the High Court should not interfere with the Trial Court's order for framing of charges unless there is glaring injustice, as established in Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia and Anr. and other cases.
4. Applicability of the M.P. Co-operative Societies Act, 1960:
The respondents argued that any irregularities should be dealt with under the M.P. Co-operative Societies Act, 1960, which provided for penalties and was a complete self-contained Code. The Supreme Court rejected this argument, stating that there is no bar under the M.P. Co-operative Societies Act, 1960, to resort to the provisions of the general criminal law, especially when charges under the Prevention of Corruption Act, 1988, are involved.
Conclusion:
The Supreme Court set aside the High Court's orders quashing the charges against the respondents and restored the charges framed by the Trial Court. The Trial Court was directed to proceed with the trial, with the clarification that the views expressed were prima facie for the disposal of the appeals and should not influence the trial.
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2009 (4) TMI 1061
The Supreme Court directed the Commissioner of Customs to issue a show cause notice to the assessee within two weeks, with a reply to be filed within four weeks. The Commissioner is to decide the matter on its merits within three months, with parties maintaining the status quo until then. The plea of limitation will not be raised by the assessee.
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2009 (4) TMI 1060
Issues Involved:
1. Validity and calculation of fuel surcharge.
2. Method of calculation and rate of fuel surcharge.
3. Inclusion of TVNL as a source for fuel surcharge.
4. Deemed supply by DVC to TISCO.
5. Non-accounting of Rs. 100 crores paid by Coal Companies.
Issue-wise Detailed Analysis:
1. Validity and Calculation of Fuel Surcharge:
The Supreme Court confirmed that the validity of the fuel surcharge had been upheld in previous decisions, particularly in the case of Bihar State Electricity Board v. Bihar 440 Volt Vidyut Upbhokta Sangh. The dispute before the High Court was related to the method of calculation and the rate of fuel surcharge. The 1993 Tariff Notification, effective from 1.7.1993, provided the formula for the levy and collection of fuel surcharge to neutralize the increased cost of generation and purchase of power.
2. Method of Calculation and Rate of Fuel Surcharge:
The formula for calculating the fuel surcharge, as laid out in Clause 16.10.3 of the 1993 Tariff, was detailed and involved several variables, including units generated and purchased, and the increase in average cost. The High Court had formed a High-Level Committee to calculate the fuel surcharge, which resulted in differing rates calculated by different committee members. The Board's amendments to the formula, changing the base year from 1992-93 to 1991-92, were also considered.
3. Inclusion of TVNL as a Source for Fuel Surcharge:
The High Court found that the inclusion of TVNL (Tenughat Vidyut Nigam Limited) as a component of H3 was incorrect since TVNL came into existence only in 1996-97, while the base year for calculation was 1991-92. The Supreme Court agreed with the High Court's conclusion that TVNL could not be treated as a source for calculating the increase in the average unit rate of purchase of electricity.
4. Deemed Supply by DVC to TISCO:
The High Court noted that under a tripartite agreement, electricity supplied by DVC to TISCO was treated as a deemed supply by the Board to TISCO. However, the rates charged by DVC and the Board differed, and the High Court held that there could not be two rates for the same source. The Supreme Court upheld this view, stating that the Board could not treat the sale of electricity by DVC to TISCO as a separate category for computing D3.
5. Non-accounting of Rs. 100 Crores Paid by Coal Companies:
The High Court observed that the Rs. 100 crores paid by Coal Companies to the Board in settlement of claims should be accounted for in the calculation of the fuel surcharge for the year 1998-99, not 1997-98. The Supreme Court directed that the actuals be worked out within three months and the adjustment of Rs. 100 crores be made accordingly.
Conclusion:
The Supreme Court dismissed the appeals filed by the Board, agreeing with the High Court's conclusions on the inclusion of TVNL and the deemed supply by DVC to TISCO. The Court also directed the adjustment of Rs. 100 crores paid by Coal Companies to be worked out for the year 1998-99. The judgment emphasizes the importance of adhering to the prescribed formula and ensuring transparency and accuracy in the calculation of fuel surcharge.
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2009 (4) TMI 1059
The Appellate Tribunal ITAT Visakhapatnam dismissed the rectification petition filed by the assessee regarding an order dated 17-10-2008 in ITA No. 679/Vizag/2002 for the assessment year 1988-89, as no mistake was found in the order. The assessee did not appear during the hearing despite prior adjournment and notice. The petition was dismissed on 17-04-2009.
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2009 (4) TMI 1058
The Supreme Court of India in 2009 (4) TMI 1058 - SC Order, dismissed a Special Leave Petition against an interim order, requesting the High Court to take up the matter for final hearing on 21st April, 2009. The views expressed by the High Court in the impugned order are to be treated as tentative.
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2009 (4) TMI 1057
Issues Involved:
1. Whether the company was justified in its action of offering Rs. 75,295.90p to the first respondent after deducting a sum of Rs. 1,23,889.50p from the total amount of gratuity of Rs. 1,99,185/- payable to the first respondent?
2. Whether the authorities under the Payment of Gratuity Act acted within their jurisdiction in allowing the claim of the first respondent?
Detailed Analysis:
Issue 1: Justification of Deduction from Gratuity
The company contended that it was entitled to deduct amounts for penal rent, electricity charges, and other dues from the gratuity payable to the first respondent, as per its Gratuity Rules. The company argued that these rules, which were not questioned by the first respondent, allowed such deductions. The company distinguished between forfeiture and deduction, arguing that while Section 4(6) of the Payment of Gratuity Act permits forfeiture under certain conditions, it had only made deductions for amounts due, not a forfeiture.
However, the court noted that the Gratuity Rules of the company, being non-statutory, could not override the provisions of the Payment of Gratuity Act. The court emphasized that gratuity is a statutory right under the Act and cannot be impaired by non-statutory rules. The court referred to Section 14 of the Act, which has an overriding effect, making any inconsistent non-statutory rules inapplicable.
The court also referenced several precedents, including the Supreme Court's decision in Jaswant Singh Gill v. Bharat Coking Coal Ltd., which held that non-statutory rules could not impair the statutory right to gratuity. The court concluded that the company's action of deducting amounts from the gratuity was not justified as it was inconsistent with the provisions of the Act.
Issue 2: Jurisdiction of Authorities under the Act
The court examined whether the Controlling Authority and the Appellate Authority under the Payment of Gratuity Act acted within their jurisdiction in allowing the claim of the first respondent. The authorities had directed the company to make full payment of gratuity without any deductions.
The court upheld the decisions of the authorities, stating that they had correctly interpreted the provisions of the Payment of Gratuity Act. The court emphasized that the Act provides a complete code for the payment of gratuity, including the conditions under which it can be forfeited or withheld. The court found that the authorities had acted within their jurisdiction and had not erred in law.
The court also noted that the first respondent did not vacate the official accommodation because the company delayed releasing retirement benefits, which could have justified his actions. However, this issue was not for the court to decide.
Conclusion
The court concluded that the company's action of deducting amounts from the gratuity was not justified under the Payment of Gratuity Act. The authorities under the Act had acted within their jurisdiction in directing the company to make full payment of gratuity to the first respondent. The court dismissed the writ petition and directed the Controlling Authority to release the gratuity amount deposited with it to the first respondent within four weeks. There was no order as to costs.
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2009 (4) TMI 1056
Issues Involved:
1. Legality of the High Court's directions for bail and exemption from personal appearance.
2. Validity of further investigation by CBCID after the final report.
3. Jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure.
4. Allegations of mala fide and retaliatory FIRs.
Detailed Analysis:
1. Legality of the High Court's Directions for Bail and Exemption from Personal Appearance:
The High Court's directions for bail and exemption from personal appearance were challenged. It was contended that the High Court committed a serious error by issuing such directions without a formal application for bail. The Supreme Court noted that the jurisdiction to exempt the accused from personal appearance lies within the domain of the learned Magistrate. The High Court's directions for granting bail and exemption from personal appearance were deemed inappropriate and beyond its jurisdiction. The Supreme Court emphasized that these matters should be left for the learned Magistrate to decide in a fair and judicious manner.
2. Validity of Further Investigation by CBCID After the Final Report:
The issue of further investigation by CBCID after the final report was scrutinized. The Supreme Court acknowledged that the investigation in the connected matter had been extensive, with final reports prepared twice. It was noted that the Deputy Superintendent of Police, CBCID, sought the opinion of the public prosecutor, which although irregular, was not disputed by the appellants. The Court highlighted that the police have the power to conduct further investigation under Section 173(8) of the CrPC, even after the court has taken cognizance of the offence. The Court cited precedents affirming the police's right to further investigate when fresh information comes to light, provided they inform the court and seek formal permission.
3. Jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure:
The Supreme Court reiterated that the jurisdiction of the High Court under Section 482 of the CrPC is limited and should be exercised sparingly to prevent abuse of process or to secure the ends of justice. The High Court's interference in the trial process was deemed inappropriate, as it overlooked procedural law and intervened at an uncalled-for stage. The Supreme Court emphasized that inherent powers should not be invoked if there is a specific provision in the Code for redressal. The High Court's order directing further investigation and issuing directions for bail and exemption from personal appearance was set aside, and the matters were remitted to the High Court for fresh consideration on merits.
4. Allegations of Mala Fide and Retaliatory FIRs:
The Supreme Court observed that both parties had lodged FIRs against each other, indicating a dispute related to a farm house. The Court noted that the investigation had run from one extreme to the other, with final reports prepared twice. It was highlighted that the High Court, while exercising its jurisdiction under Section 482 of the CrPC, did not find the final report to be conclusive. The Supreme Court directed the High Court to consider the allegations of mala fide and retaliatory FIRs afresh and pass appropriate interim orders as necessary. The interim order passed by the Supreme Court was directed to continue for four weeks.
Conclusion:
The Supreme Court set aside the High Court's directions for bail and exemption from personal appearance, remitting the matters for fresh consideration. The Court affirmed the police's power to conduct further investigation under Section 173(8) of the CrPC and emphasized the limited jurisdiction of the High Court under Section 482 of the CrPC. The allegations of mala fide and retaliatory FIRs were directed to be reconsidered by the High Court. The appeals were disposed of to the aforementioned extent.
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2009 (4) TMI 1055
The Supreme Court of India in 2009 (4) TMI 1055 case dismissed the petition after condoning the delay. The judges were Justice S.H. Kapadia and Justice Aftab Alam. Petitioner represented by Mr. Parag Tripathi, ASG, and others, while the respondent was represented by Mr. Ajay Vohra and others.
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2009 (4) TMI 1054
Issues involved: Special leave to prefer an appeal u/s 378 of the Code of Criminal Procedure, 1973 regarding acquittal of accused u/s 138 of the Negotiable Instruments Act, 1881.
The judgment discusses the case where the accused were acquitted of the offense under section 138 of the Negotiable Instruments Act, 1881. The applicant argued that there was enough evidence to show that M/s. Shah Enterprises had taken over the liability of M/s. Shah Agencies towards the applicant. The applicant pointed out various documents, including a letter and a notice of demand, to support their claim. However, the court noted discrepancies in the case presented by the applicant. The notice of demand addressed the second respondent as the Proprietor of M/s. Shah Enterprises and the third respondent as the Power of Attorney holder of Shah Enterprises, without specific mention of the liability transfer from M/s. Shah Agencies to M/s. Shah Enterprises. The court highlighted the different versions presented by the applicant in the complaint and the affidavit, indicating confusion regarding the party liable for the disputed cheques. Ultimately, the court found that the case made by the applicant did not clearly establish the liability transfer from M/s. Shah Agencies to M/s. Shah Enterprises, leading to the dismissal of the appeal for lack of merit.
The judgment emphasized the importance of consistency in the applicant's case regarding the liability for the disputed cheques. Discrepancies between the complaint and the affidavit in lieu of examination in chief raised doubts about the actual party responsible for the liability. The court noted that the complaint referred to M/s. Shah Enterprises as the proprietary concern, while the affidavit introduced M/s. Shah Agencies as regular customers, creating confusion regarding the entity liable for the debt. Additionally, the court highlighted the lack of explicit mention in the complaint regarding the transfer of liability from M/s. Shah Agencies to M/s. Shah Enterprises, further weakening the applicant's case. The judgment concluded that the inconsistencies in the applicant's submissions failed to establish a clear legal basis for challenging the acquittal of the accused under section 138 of the Negotiable Instruments Act, 1881.
The judgment concluded by stating that the observations made were limited to considering the grant of leave and should not be construed as findings on the rights and liabilities of the parties. It clarified that the order would not impact any other pending proceedings, maintaining a narrow scope for the court's decision.
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2009 (4) TMI 1053
Forged and fabricated Promissory note (pro-note) - reference can be made to any expert for ascertaining the age of the ink used on the disputed document/cheque, or not - Section 45 of the Indian Evidence Act r/w Section 139 of the Negotiable Instruments Act - HELD THAT:- There is no legal embargo for getting opinion from the handwriting expert, which would effectively assist the Court in reaching a just decision. By no stretch of imagination, it could be stated that the opinion of the expert, is not relevant factor for adjudication of the dispute and in order to unearth the truth, the Court can very well refer the matter for comparison and necessary chemical examination.
Following the principles laid down in Apex Court in Shashi Kumar Banerjee v. Subodh Kumar Banerjee [1963 (9) TMI 51 - SUPREME COURT], it is observed that it is necessary to get the opinion of the handwriting expert as per the prayer contained in the affidavit. Hence, the order passed by the Court below calls for intervention and the same is liable to be set aside, which is accordingly set aside and the Civil Revision petition deserves to be allowed. The trial Court shall follow the relevant procedure for referring the suit pro-note to the handwriting expert and to get the opinion and proceed with the case further.
Thus, it is observed that it is necessary to get the opinion of the handwriting expert as per the prayer contained in the affidavit - In fine, the Civil Revision Petition is allowed.
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2009 (4) TMI 1052
The Supreme Court's judgment in 2009 (4) TMI 1052 - SC Order was delivered by HON'BLE MR. JUSTICE S.H. KAPADIA AND HON'BLE MR. JUSTICE AFTAB ALAM. The Petitioner was represented by Mr. Mohan Parasaran, ASG., Mr. D.L. Chidanand, Adv., Mr. Ajay Sharma, Adv., Mr. B.V. Balaram Das,Adv. The Respondent did not have representation. The court condoned the delay and dismissed the case.
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2009 (4) TMI 1051
Issues involved: Challenge to the legality and correctness of the judgment and order of acquittal u/s 138 of the Negotiable Instruments Act, 1881.
Issue 1: Allegation of cheque dishonour and legal challenge
The appellant challenged the acquittal of the accused u/s 138 of the Negotiable Instruments Act, alleging that the cheque issued by the accused towards repayment of a loan was dishonoured due to insufficient funds. The complainant contended that the cheque was obtained as security for the loan and its dishonour constituted an offence.
Issue 2: Interpretation of legal principles
The court examined previous decisions regarding cheques issued as security for repayment of loans. It was noted that the liability of the accused in such cases depends on the existence of an unpaid debt as per agreed terms, with implied instructions for deferred presentation of the cheque.
Issue 3: Discrepancies in evidence and legal implications
The court analyzed the evidence presented by the complainant and the accused regarding the nature of the loan, the pronote, and the cheque issued. Discrepancies were found in the complainant's case, where she claimed the cheque was for repayment while stating in cross-examination that it was issued as security.
Issue 4: Burden of proof and legal standards
The court emphasized the complainant's burden to establish the existence of a legally enforceable debt at the time of the cheque issuance beyond reasonable doubt. It was highlighted that the accused's defense need not be proven beyond reasonable doubt, shifting the burden of proof to the complainant.
Conclusion:
Based on the analysis of evidence, legal principles, and precedents, the court concluded that the complainant failed to prove the existence of the loan and the purpose of the cheque issuance beyond reasonable doubt. Citing the decision of the Hon'ble Supreme Court, the court dismissed the appeal, finding no grounds to interfere with the acquittal order.
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2009 (4) TMI 1050
Issues Involved:
1. Whether the appellant was estopped from taking a different stand in the subsequent writ petition (WP 1673/2005) due to the stand taken in WP No. 1267 of 1999.
2. Whether the decision of the central government refusing reference requires interference.
Issue-wise Detailed Analysis:
Re: Question (i) - Estoppel from Taking a Different Stand
1. Appellant's Argument: The appellant union argued that contract labour could claim that the contract between the principal employer (IOC) and the contractor was sham and bogus, asserting that they were actually employees of IOC. Alternatively, they could plead that if the contract was genuine, the contract labour system should be abolished under Section 10 of the CLRA Act.
2. Respondent's Argument: IOC contended that the appellant could not take contradictory stands. They argued that in the first writ petition, the appellant assumed a valid contract existed and sought abolition of the contract labour system, while in the second petition, the appellant claimed the contract was sham and bogus, which was inconsistent.
3. Court's Analysis: Upon examining the pleadings in both writ petitions, the Court found that the issues, parties, cause of action, and reliefs claimed were different. In the first petition, the relief sought was under the CLRA Act for abolition of the contract labour system and absorption of workers as IOC employees. In the second petition, the relief sought was under the ID Act for making a reference to the Industrial Tribunal to decide if the contract was sham and the workers were direct employees of IOC.
4. Consistency of Stand: The Court noted that even in the first writ petition, the appellant contended that the contract was sham and nominal, and the workers were actually employees of IOC. The High Court erred in assuming that the appellant conceded the contract's validity in the first petition and took a contrary stand in the second petition.
5. Legal Principles: The Court clarified that taking alternative pleas available in law is permissible when there is no inconsistency in the facts alleged. Different or alternative reliefs can be claimed on the same facts. The contention of IOC regarding res judicata or estoppel was rejected.
6. SAIL-II Decision: The Court distinguished the present case from the SAIL-II decision, where inconsistent and mutually destructive pleas were raised in the same proceedings. In the present case, the issues in the two writ petitions were different, and thus, the principle from SAIL-II did not apply.
Re: Question (ii) - Refusal of Reference by Central Government
1. Discretion of Government: The Court acknowledged that making a reference under Section 10(1) of the ID Act is within the discretion of the appropriate government. However, this discretion must be exercised bona fide and based on relevant and material facts.
2. Judicial Review: The Court emphasized that while the adequacy or sufficiency of the material on which the government forms its opinion is beyond judicial scrutiny, the government must not act on irrelevant, irrational, or extraneous grounds, nor should it prejudge or adjudicate the dispute.
3. Case Law: The Court referred to several precedents, including *State of Madras v. C.P. Sarathy*, *Rohtas Industries Ltd. v. S.D. Agarwal*, and *Ram Avtar Sharma v. State of Haryana*, which established that the government should not delve into the merits of the dispute and must provide reasons for its refusal to make a reference.
4. Present Case: The Court found that the central government had examined the merits of the dispute and refused to make the reference on the ground that the workers were not employees of IOC. This was the very issue that required adjudication by the Industrial Tribunal.
5. Mandamus: The Court concluded that a writ of mandamus would be issued to the appropriate government to reconsider the refusal to make a reference when the refusal is based on irrelevant or extraneous grounds or when the government prejudges the dispute.
6. Decision: The appeal was allowed, and the Central Government was directed to reconsider the matter and take an appropriate decision on the request for reference of the dispute to the Industrial adjudicator. The Industrial Tribunal would then consider the dispute on merits, uninfluenced by the observations of the High Court or Supreme Court.
Conclusion:
The Supreme Court allowed the appeal, directing the Central Government to reconsider the request for reference of the dispute to the Industrial Tribunal, emphasizing the need for proper adjudication of the workers' claims regarding their employment status with IOC.
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2009 (4) TMI 1049
Issues Involved:
1. Legality of AAIFR's directions for submission of revised rehabilitation proposals.
2. Evaluation of competing rehabilitation schemes for the sick company.
3. Allegations of contempt against M/s R.R.Kabels Ltd. for violating AAIFR's status quo order.
4. Consideration of M/s Tata Iron & Steel Co. Ltd.'s late proposal for rehabilitation.
5. Locus standi of interveners and individual applicants in the rehabilitation process.
Issue-Wise Detailed Analysis:
1. Legality of AAIFR's Directions for Submission of Revised Rehabilitation Proposals:
The petitioner, M/s R.R.Kabels Ltd., challenged the AAIFR's order dated 22nd September 2006, which directed all four parties (SJIL, Pegasus, RRK, and LLL) to submit revised rehabilitation proposals. The petitioner argued that its scheme was superior and that the other parties, including Pegasus and SJIL, did not conform to BIFR's directions. The court noted that AAIFR's directions were aimed at ensuring a comprehensive evaluation of all proposals to revive the sick company.
2. Evaluation of Competing Rehabilitation Schemes:
The court acknowledged that the evaluation of the proposals was a specialized task for the Operating Agency (OA). M/s R.R.Kabels Ltd. had deposited Rs. 25 crores and arranged an additional Rs. 34 crores for the company's revival, showcasing its commitment. However, M/s Tata Iron & Steel Co. Ltd. also submitted a proposal, supported by several workers' unions, and argued that their scheme was more beneficial to the workers and the company. The court decided that both proposals should be evaluated by the OA to determine which was more suitable for the company's rehabilitation.
3. Allegations of Contempt Against M/s R.R.Kabels Ltd.:
M/s Pegasus Assets Reconstruction Pvt. Ltd. alleged that M/s R.R.Kabels Ltd. violated AAIFR's status quo order by purchasing 85% of the secured debt of the sick company. The court referred to Section 22A of The Sick Industrial Companies (Special Provisions) Act, 1985, which restricts the disposal of assets but does not classify non-performing assets as "assets" of the sick company. Thus, the court found no violation of the status quo order by M/s R.R.Kabels Ltd.
4. Consideration of M/s Tata Iron & Steel Co. Ltd.'s Late Proposal:
The court noted that M/s Tata Iron & Steel Co. Ltd. had not submitted any rehabilitation proposal for over seven years despite being a party to the proceedings. However, given the court's interim order allowing Tata to submit a proposal, the court decided that the OA should evaluate Tata's proposal alongside M/s R.R.Kabels Ltd.'s scheme. The court emphasized that the ultimate goal was to revive the sick company and protect the interests of the workers.
5. Locus Standi of Interveners and Individual Applicants:
The court addressed the objections raised by M/s R.R.Kabels Ltd. regarding the locus standi of interveners and individual applicants. The court held that these parties were not seeking independent relief but were voicing their concerns about the rehabilitation proposals. The court ruled that the interveners' submissions should be considered by the OA during the evaluation process.
Conclusion:
The court remanded the matter to the OA for fresh evaluation of the proposals submitted by M/s R.R.Kabels Ltd. and M/s Tata Iron & Steel Co. Ltd. The OA was directed to consider the following factors:
- The earlier submission and financial commitments of M/s R.R.Kabels Ltd.
- The protection of workers' interests, including payment of arrears, wage security, and retrenchment plans.
- The return of investments made by M/s R.R.Kabels Ltd. if their proposal was not accepted.
The court vacated the stay on proceedings before AAIFR and BIFR but maintained the status quo regarding the assets of the sick company until the BIFR approved a scheme or modified the interim order. The writ petition by M/s Pegasus Assets Reconstruction Pvt. Ltd. was dismissed, and the court clarified that the consideration of proposals would be limited to those submitted by M/s R.R.Kabels Ltd. and M/s Tata Iron & Steel Co. Ltd.
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