Signifies the operation of natural forces free from human intervention, such as lightening, storm etc.  – It may include such unexpected occurrences of nature as severe gale, snowstorms, hurricanes, cyclones, tidal waves and the like – Every unexpected wind and storm does not operate as an excuse from liability, if there is a reasonable possibility of anticipating their happening – An act of God provides no excuse unless it is so unexpected that no reasonable human foresight could be presumed to anticipate the occurrence, having regard to the conditions of time and place known to be prevailing at. (The Divisional Controller, KSRTC Vs Mahadeva Shetty & Anr.) 2004(2) Apex Court Judgments 36 (S.C.) : 2004(3) Civil Court Cases 23 (S.C.)

Certain documents sought to be produced – Filling up the gaps – Means if the gap is inherent in the case of the prosecution or it is patent wedge in the matrix of the case of the prosecution, such gaps shall not be permitted to be filled up – Gaps that have arisen on account of inadvertent omissions during the process of the conduct of the trial cannot be considered to be the filling up of gaps – Interests of justice requires aduction of further evidence so as to unravel the truth. (Laveti Kamala Vs State of A.P.) 2002(2) Criminal Court Cases 96 (A.P.)

Certain documents sought to be produced – The relevancy of the documents should be seen first and they can be received if ultimately they are found to be germane for consideration as per the merits of the case. (Laveti Kamala Vs State of A.P.) 2002(2) Criminal Court Cases 96 (A.P.)

Either side can produce additional evidence at any stage before the pronouncement of the judgment, if the said evidence is essential to the just decision of the case. (Nirmal Vs State of Punjab) 2002(1) Criminal Court Cases 333 (P&H)

Jurisdiction of High Court – “Necessaries”, claim for – Appellant Club, an association incorporated under laws of United Kingdom offering insurance cover in respect of vessels entered with it for diverse third party risk – `Sea Ranger’ and `Sea Glory’ sister vessels of 1st respondent vessel – These two vessels entered into a contract with appellant association – Failure to pay insurance premium – Arrest of 1st respondent vessel within a territorial waters of India – Suit filed by Club for a decree against respondents for unpaid insurance premium amount due to club – Claim of unpaid insurance premium was a `necessary’ within the meaning of S.5 of the Act and failure to insure the security is a matter which has a bearing upon security of the shop – Protection and Indemnity (P & I) cover to call at major ports in India is now a statutory requirement. (Liverpool & London S.P. & I. Asson Ltd. Vs M.V.Sea Success I and Anr.) 2004(1) Apex Court Judgments 200 (S.C.)

Qualification – Person must possess eligibility qualification on the last date fixed for such purpose unless there is an express provision to the contrary – This has to be established by producing necessary certificates – There can be some relaxation in the matter of submission of proof – It will not be proper to apply any rigid principle as it pertains in the domain of procedure – Every infraction of the rule relating to submission of proof need not necessarily result in rejection of candidature. (Dolly Chhanda Vs Chairman, JEE & Ors.) 2004(2) Apex Court Judgments 602 (S.C.)

Acquiescence – Defendant raising construction on land of plaintiff- Plaintiff filing suit for possession after a gap of 8 years – No evidence that plaintiff had knowledge of or did not object to construction being raised by defendant at any time – Held, that simply because plaintiff filed  suit for possession after a gap of 8 years, doctrine of acquiescence is not attracted. (Mohan Singh alias Surinder Mohan Singh Vs Gurdit Singh & Ors.) 2004(3) Civil Court Cases 149 (P&H)

Co-owners – Long and continuous possession by itself would not constitute adverse possession – Possession of one co-sharer amounts to possession on behalf of other co-sharers unless there has been clear ouster by denying the title of other co-sharers – Mutation in the revenue record in the name of one co-sharer does not amount to ouster unless there is clear declaration that the tile of the other co-sharers was denied and disputed – Mere non participation in rent and profit of the land of co-sharers also does not constitute an ouster. (Limitation Act, 1963, Art.65). (Md.Mohammadali (Dead) By Lrs. Vs Jagadish Kalita & Ors.) 2004(1) Apex Court Judgments 594 (S.C.) : 2004(2) Civil Court Cases 387 (S.C.)

Co-owners – Mere ouster is not sufficient – There should be evidence of open assertion of hostile title coupled with exclusive possession and enjoyment – Merely because mutation is effected it does not go to show that possession is adverse. (Naziruddin Vs Hajirambee) 2004(2) Civil Court Cases 245 (Kerala)

Co-owners – Property purchased jointly by two brothers – Mutation entry in name of both – One brother continued to cultivate it as co-owner – No evidence showing either partition of suit property or sale of share by one to the other – Ouster not proved – Co-owner not entitled to claim title by adverse possession. (Rambhau Bhaduji Bhende Vs Kisan Bhaduji Bhende) 2004(2) Civil Court Cases 222 (Bombay)

Co-owners – Two brothers purchased property and mutation recorded in name of both of them – Elder brother continued to cultivate – No evidence showing either partition of suit land or sale of share of younger brother to elder brother – Ouster not proved – Co-owner/elder brother not entitled to claim title by adverse possession. (Limitation Act, 1963, Art.65). (Rambhau Bhaduji Bhende Vs Kisan Bhaduji Bhende) AIR 2004 Bombay 84

Enjoyment of property as his own for more than 12 years before the date of suit – If true owner does not take any action within the period of limitation then it can be said that person in possession has perfected his title by adverse possession as the three conditions of ‘peaceful’, ‘open’ and ‘continuous’ possession to constitute adverse possession are satisfied. (Devaki Pillai Vs Gouri Amma) 2003(2) Civil Court Cases 65 (Kerala)

Is a hostile possession by clearly asserting hostile title in denial of the title of true owner – Party claiming adverse possession must prove that his possession is peaceful, open and continuous – Possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner – It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (Karnataka Board of Wakf Vs Government of India & Ors.) 2004(2) Apex Court Judgments 379 (S.C.) : 2004(3) Civil Court Cases 326 (S.C.)

Is available to co-owners or co-sharers as well as against co-mortgagees – In later case ouster is required to be proved by person claiming adverse possession – Difference is of standard and nature of proof only. (Banshi Lal Vs Smt.Raj Bai) AIR 2004 Rajasthan 92

Long possession of more than 12 years without intention to possess the suit land adversely to the title of the plaintiff cannot result in acquisition of title by adverse possession. (Limitation Act, 1963, Art.65). (Deva (Dead) thr. LRs. Vs Sajjan Kumar (Dead) by Lrs.) 2004(1) Apex Court Judgments 328 (S.C.) : 2004(2) Civil Court Cases 31 (S.C.)

Mere permissive possession is not sufficient to establish adverse possession. (State of Karnataka Vs M.Muniraju) AIR 2002 Karnataka 287

Mere tethering of cattle or storing of fuel or logs on waste or open land is not adverse possession – It is merely a case of user and not of possession of the open land. (Nathu Lal & Ors. Vs Gulab Bai) 2003(1) Civil Court Cases 463 (Rajasthan)  

Party in permissive possession – Such possession is never adverse with hostile animus – Plea of adverse possession, not tenable. (Kashi Ram Vs Harbhajan Singh Bhajji) AIR 2002 H.P. 154

Permissive possession – Father permitted his eldest son to occupy one of the houses built by him – Son in permissive occupation cannot claim to be co-owner alongwith father – Son cannot claim adverse possession. (Boothathan Vs Subbiah Thevar) 2003(2) Civil Court Cases 429 (Madras) 

Permissive possession – Where possession  is proved in its origin permissive, it will be presumed to be of same character until and unless something occurred to make it adverse – Onus is on permissive occupant to show when and how his possession became adverse – Mere fact of long user by permissive occupant is not sufficient to alter permissive possession into adverse possession. (M.K.Venugopal Vs Aswathamma) 2005(1) Civil Court Cases 394 (Karnataka)

Plaintiff in continuous and interrupted possession of suit land since 1931 and they setting up a hostile title thereto as against the defendants – Defendants were asserting their title to the land since 1956 but failed to get possession of the suit land – Plea of adverse possession raised by plaintiff is thus clearly established. (Bondar Singh & Ors. Vs Nihal Singh & Ors.) 2003(1) Apex Court Judgments 557 (S.C.)

Plea of – Not a pure question of law but a blended one of fact and law – A person who claims adverse possession should show (a) on what date he came into possession, (b) what was the nature of his possession, (c), whether the factum of possession was known to the other party, (d) how long his possession has continued, and (d) his 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 true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. (Karnataka Board of Wakf Vs Government of India & Ors.) 2004(3) Civil Court Cases 326 (S.C.) : 2004(2) Apex Court Judgments 379 (S.C.)

Pleadings – Defendant pleaded that he or his father, at any stage, had never paid any share of produce or batai to the landowner regarding the land in dispute and that the defendant had been cultivating the suit land continuously within the knowledge of the landowner and without any objection from her – Possession, at the most, can be taken to be permissive – Pleadings do not show that possession of defendant or his father was, at any stage, hostile. (Jarnail Singh Vs Gurmail Singh & Ors.) 2005(1) Civil Court Cases 445 (P&H)

Possession of defendant traceable to agreement of sale – Possession of defendant cannot therefore be treated as adverse to the lawful owner. (Moparthi Sarojini Devi Vs Kavuru) 2003(1) Civil Court Cases 559 (A.P.)  

Suit for declaration of title, recovery of possession, arrears of rent and mesne profits – Case of plaintiff that defendant was inducted as tenant in 1944 – Plea of defendant that he entered suit house in 1937 – Documentary evidence not indicating denial of title of owner and any overt act on part of defendant till 1972 to constitute adverse claim – Held, plaintiff is entitled to declaration of title, recovery of possession with mesne profits but cannot be granted decree for arrears of rent in view of no proof of alleged tenancy of defendant. (Bhagwan Agarwalla Vs Puranmal Bhut) AIR 2003 Orissa 75

Tenant if occupies land adjacent to the lease property, he cannot claim adverse possession thereto because he entered the property as a tenant. (Limitation Act, 1963, Art.65). (Iqbal Singh (died) by L.R. Vs  A.Sudhakara Rao & Ors.) 2004(2) Civil Court Cases 268 (A.P.)

Plea of – Pleas on title and adverse possession are mutually inconsistent and the later does not begin to operate until the former is renounced. (Karnataka Board of Wakf Vs Government of India & Ors.) 2004(2) Apex Court Judgments 379 (S.C.) : 2004(3) Civil Court Cases 326 (S.C.)

Admitting signatures on document as a witness but stating that he signed on the asking of his senior advocate – Fact that he appeared as a counsel for the executant of the document is a ground not to rely on his evidence. (Girdhari Lal & Ors. Vs Gian Chand & Ors.) 2005(1) Civil Court Cases 656 (P&H)

Appearance as a witness – Advocate holding vakalatnama and power of attorney – Advocate a family member of the plaintiff – Held, being member of plaintiffs family it can safely be assumed that he must be having personal knowledge about the controversy as such he is a competent witness to testify. (Raees Ahmed  Vs Shrigopal Prakash) 2003(1) Civil Court Cases 666 (Rajasthan) 

Enrolment – Candidate holding degree in law of any University in India constituted under any Central or State Act is eligible to be enrolled as an Advocate – “Any University in India” refer only to a University constituted under any Central or State Act and does not include or refer to any independent private college which is affiliated to such University – Function of Bar Council of India is to recognise the Universities whose degree in law shall be qualification for enrolment as an Advocate and not to `recognise’ colleges affiliated to Universities. (Advocates Act, 1961, S.24(1)(c)(iii). (Smt.Manjula B.R. Vs Karnataka State Bar Council) 2003(2) Civil Court Cases 230 (Karnataka) 

Fee not paid – He cannot detain files on the ground that his fee has not been paid. (Virendra Prakash Madnawat Vs Uttar Pradesh Power Corp.) 2003(2) Civil Court Cases 611 (Allahabad) 

Unpaid fees – Advocate has no lien over the papers of his client – Advocate may resort to legal remedies for unpaid remuneration. (New India Assurance Co. Ltd. Vs A.K.Saxena) 2004(1) Apex Court Judgments 56 (S.C.) : 2004(2) Civil Court Cases 255 (S.C.)

Enrolment fee – Bar Council cannot invoke writ jurisdiction for seeking enhancement of enrolment fee. (The Bar Council of Maharashtra Vs The Union of India) AIR 2002 Bombay 220

Law – 3 years course passed from a college affiliated to Bangalore University – Cannot be refused enrolment as an Advocate on the ground that Bar Council of India has not approved affiliation of Collee to Bangalore University – Said requirement of recognition of College by BCI by way of approval of affiliation prescribed by BCI under its Rules, is not binding for enrolment purpose. (Smt.Manjula B.R. Vs Karnataka State Bar Council and Ors.) AIR 2002 Karnataka 27

Right of appearance to appear in a particular case on the permission granted by Court is an exception to the right of practice by the Advocates. (Surender Raj Jaiswal Vs Smt.Vijaya Jaiswal) AIR 2003 A.P. 317

Misconduct by Advocate – In exercise of jurisdiction under Article 142 Constitution of India, Supreme Court is only empowered to proceed suo motu against an Advocate for his misconduct and send for the records and pass an appropriate order against the Advocate concerned – But Supreme Court cannot punish an Advocate for professional misconduct in exercise of power under Article 129 of Constitution except in the manner prescribed under the Advocates Act and the rules framed thereunder. (Bar Council of India Vs High Court of Kerala) 2005(1) Apex Court Judgments 34 (S.C.) : 2005(1) Criminal Court Cases 225 (S.C.)

Advocate – An Advocate punished for contempt cannot appear as counsel in Court unless he purges himself of contempt – Undergoing of punishment or tendering apology will not amount to purge – To purge himself the contemner is to implant or infuse in his own mind real remorse about his conduct which the Court found to have amounted to contempt of Court – Next step is to seek pardon from the Court for what he did on the ground that he really and genuinely repents and that he has resolved not to commit any such act in future – It is not enough that he tenders an apology – The apology tendered should impress the Court to be genuine and sincere. (Pravin C.Shah Vs K.A.Mohd. Ali & Anr.) 2002(1) Criminal Court Cases 154 (S.C.)

Advocate – Professional misconduct – Advocate permitted the allotment of STD booth to continue in his name – Subsequently STD booth surrendered – Lapse on part of appellant liable to be condoned taking sympathetic view. (D.Saibaba Vs Bar Council of India & Anr.) 2003(2) Apex Court Judgments 06 (S.C.)

Misconduct – A professional or other misconduct committed by a member of the profession should ordinarily be judged qua profession. (Noratanmal Chouraria Vs M.R.Murli & Anr.) 2004(2) Apex Court Judgments 121 (S.C.)

Advocate – Professional misconduct – Appellant obtained power of attorney on misrepresentation in his favour and sold the property of the complainants – Appellant fraudulently appropriated the sale proceeds for his gain – Held, appellant has committed a grave professional misconduct – Name of appellant removed from State’s Bar Roll forever and imposed costs of Rs.25,000/-. (Vikas Deshpande Vs Bar Council of India & Ors.) 2003(1) Apex Court Judgments 96 (S.C.)

Advocate – Professional misconduct – Disciplinary Committee serving notice four times – Advocate not appearing – Proceeded ex parte – Order upheld. (Vikas Deshpande Vs Bar Council of India & Ors.) 2003(1) Apex Court Judgments 96 (S.C.)

Advocate – Carrying on photocopying centre, PCO and other business in Court even after his enrolment – Plea of Advocate that after his enrolment business carried on by his brother and father – Evidence of Telephone Deptt. and SDO showing that PCO and lease of photo-copying centre are continuing in name of Advocate even after his enrolment – Finding of guilt of misconduct cannot be said to be based on no evidence – However, considering nature of misconduct and taking note of the handicap of the Advocate debarring him for practising for all time held was too harsh. (Bhupinder Kumar Sharma Vs Bar Association, Pathankot) AIR 2002 SC 47

Advocate – Change of – Previous lawyer cannot detain files on ground that his fee has not been paid. (Virendra Prakash Madnawat Vs Uttar Pradesh Power Corporation) AIR 2003 Allahabad 122

Claim petition of workman who was disabled while working in Mill – Advocate committed a fraud by getting his thumb impression and paying Rs.9,500/- and getting his claim dismissed as settled – Bar Council directed to hold enquiry in the allegations made against Advocate.(Roshan Deen Vs Preeti Lal) AIR 2002 S.C. 33

Misconduct – Not defined in the Act – It envisages breach of discipline – However, it is not possible to lay  down exhaustively as to what would constitute conduct and indiscipline – It is wide enough to include wrongful omission or commission whether done or omitted to be done intentionally or unintentionally – It means, improper behaviour intentional wrong doing or deliberate violation of a rule of standard or behaviour. (Noratanmal Chouraria Vs M.R.Murli & Anr.) 2004(2) Apex Court Judgments 121 (S.C.)

Review – Limitation – Starts from the date of communication or knowledge of the order to the review petitioner. (D.Saibaba Vs Bar Council of India & Anr.) 2003(2) Apex Court Judgments 06 (S.C.)

Genuineness doubted – Sessions Judge – Can’t direct enquiry/investigation by CJM or Police – If prima facie satisfied then a complaint in writing has to be sent to a Magistrate of the first class having jurisdiction. (Criminal Procedure Code, 1973, S.195, 340, 156(3) r/w S.193). (Thankamani Vs Inspector General of Police) 2002(1) Criminal Court Cases 249 (Kerala)

Determination – Ossification test – Varies to two years this side or that side – This variation should go to the benefit of the accused. (Dhobeidhar Naik Vs State) 2002(1) Criminal Court Cases 71 (Orissa)

Proof – Horoscope – It is a very weak piece of material to prove age of a person – Horoscope can be treated as evidence in terms of S.32 Clause (5) of Evidence Act provided it is proved to have been made by a person having special means of knowledge as regards authenticity of  date, time etc. mentioned therein. (State of Punjab Vs Mohinder Singh) 2005(1) Apex Court Judgments 483 (S.C.)

Proof – Oral evidence – Has utility if no documentary evidence is forthcoming – Entries in school register and admission form regarding date of birth constitute good proof of age. (State of Punjab Vs Mohinder Singh) 2005(1) Apex Court Judgments 483 (S.C.)

Proof – School Record – Entry in school admission register is more authentic evidence as regards proof of age unless it is established by unimpeachable contrary material to show that it is inherently improbable. (State of Punjab Vs Mohinder Singh) 2005(1) Apex Court Judgments 483 (S.C.)

Proof – School records have more probative value than a horoscope – Where no other material is available, horoscope may be considered but subject to its authenticity being established. (State of Punjab Vs Mohinder Singh) 2005(1) Apex Court Judgments 483 (S.C.)

Jurisdiction clause in the agreement – The same applies to civil claims/actions – Jurisdiction of Criminal Court is not ousted by such agreement. (Jimmy R.Jagtiani  Vs State of Haryana) 2002(1) Criminal Court Cases 406 (P&H)

Preventive detention – Detaining authority has to be satisfied on material placed before it that alleged manufacture, transport or sale of arrack was unfit for human consumption – Material on which detaining authority forms opinion that arrack sold by detenu is dangerous to public health must also be given to detenu. (The District Collector, Ananthapur & Anr. Vs V.Laxmanna) 2005(1) Apex Court Judgments 599 (S.C.) : 2005(2) Criminal Court Cases 576 (S.C.)

Preventive detention – Detenu detained on the ground that he sold arrack which was dangerous to public health – No material supplied to detenu on which detaining authority formed such opinion – High Court rightly set aside the order of preventive detention. (The District Collector, Ananthapur & Anr. Vs V.Laxmanna) 2005(1) Apex Court Judgments 599 (S.C.) : 2005(2) Criminal Court Cases 576 (S.C.)

Preventive detention – Stale ground – If the facts placed before the detaining authority are proximate to each other and last of the fact mentioned is proximate to the order of detention then the earlier incident cannot be treated as Stale. (The District Collector, Ananthapur & Anr. Vs V.Laxmanna) 2005(1) Apex Court Judgments 599 (S.C.) : 2005(2) Criminal Court Cases 576 (S.C.)

Preventive detention – Validity of – Detenu involved in five incidents of bootlegging which are reasonably proximate to each other and the last of the incidents proximate to the order of detention – Order of detention cannot be set aside. (The Collector & District Magistrate, W.G.Dist.Eluru, Andhra Pradesh Vs Sangala Kondamma) 2005(1) Criminal Court Cases 374 (S.C.)

Preventive detention – Court cannot substitute its own opinion for that of the detaining authority when the grounds of detention are precise, pertinent, proximate and relevant. (The Commissioner of Police & Ors. Vs Smt.C.Anita) 2005(1) Criminal Court Cases 537 (S.C.)

“Commencement of the arbitration proceedings” – Have not been defined in the Act – They have to be given their ordinary meaning having regard to the provisions contained in Chapter II thereof. (State of West Bengal Vs Amritlal Chatterjee) 2003(2) Apex Court Judgments 395 (S.C.)

Essential elements of arbitration agreement are : (1) There must be a present or a future difference in connection with some contemplated affairs; (2) There must be the intention of the parties to settle such difference by a private tribunal; (3) The parties must agree in writing to be bound by the decision of such tribunal; (4) The parties must be ad idem. (Bihar State Mineral Dev Corpon. & Anr. Vs Encon Builders (I) Pvt.Ltd.) 2003(2) Apex Court Judgments 271 (S.C.) : 2003(3) Civil Court Cases 462 (S.C.) 

Term ‘Arbitration’ is not required to be specifically mentioned while construing an arbitration agreement. (Bihar State Mineral Dev Corpon. & Anr. Vs Encon Builders (I) Pvt.Ltd.) 2003(2) Apex Court Judgments 271 (S.C.) : 2003(3) Civil Court Cases 462 (S.C.) 

Arbitrator appointed under old Act – Arbitrator failing in his duty to enter on the reference – New arbitrator appointed – By the time new arbitrator appointed new Act came into force – Held, proceedings shall be deemed to have commenced on the date when request for referring dispute for arbitration was received – Provisions of Arbitration Act, 1940 shall apply in relation to arbitral proceedings which commenced before Arbitration and Conciliation Act, 1996 came into force unless otherwise agreed to by parties. (State of West Bengal Vs Amritlal Chatterjee) 2003(2) Apex Court Judgments 395 (S.C.)

Award – Period of four months – Enlargement – Power can be exercised by Court – Appellate Court not extending time – Is deprecated particularly when parties were taking part in proceedings before Arbitrator willingly and no protest was made by them. (State of Haryana Vs Krishan Chand) AIR 2002 P&H 306

Sole arbitrator – Appointment – Where one party proposes and the other party does not respond then it cannot be taken to be implied consent or acquiescence – In that event it is the Court who is to appoint the arbitrator. (Dharma Prathishthanam Vs M/s Madhok Construction Pvt. Ltd.) 2005(1) Apex Court Judgments 330 (S.C.) : 2005(1) Civil Court Cases 713 (S.C.)

Reasonable opportunity – For constituting a reasonable opportunity, the following conditions are required to be observed: (1) Each party must have notice that the hearing is to take place; (2) Each party must have a reasonable opportunity to be present at the hearing, together with his advisers and witnesses; (3) Each party must have the opportunity to be present throughout the hearing; (4) Each party must have a reasonable opportunity to present evidence and argument in support of his own case; (5) Each party must have a reasonable opportunity to test his opponent’s case by cross-examining his witnesses, presenting rebutting evidence and addressing oral argument; (6) The hearing must, unless the contrary is expressly agreed, be the occasion on which the parties present the whole of their evidence and argument. (Sohan Lal Gupta (Dead) through LRs & Ors. Vs Smt.Asha Devi Gupta & Ors.) 2003(2) Apex Court Judgments 661 (S.C.)

Reasonably opportunity – Arbitrator is entitled to give direction to the parties to be present on the particular date, particular time and particular place which would be sufficient compliance of the requirements of law – A party has no absolute right to insist on his convenience being consulted in every respect – Court will intervene only in the event of positive abuse. (Sohan Lal Gupta (Dead) through LRs & Ors. Vs Smt.Asha Devi Gupta & Ors.) 2003(2) Apex Court Judgments 661 (S.C.)

In an appeal Supreme Court appointed arbitrator – Arbitrator filed award in Supreme Court – Application u/s 14(2) filed before Court at Vishakhapatnam to issue a direction to Arbitrator to take back the Award from Supreme Court and to file it before the Court at Vishakhapatnam – Award ordered to be transmitted to Court at Vishakhapatnam with liberty to parties to file objections within 30 days from the date on which that Court receives the award. (I.T.C. Ltd. Vs George Joseph Fernandes & Anr.) 2005(1) Apex Court Judgments 538 (S.C.)

Arbitration award – Made rule of Court – Works contract containing arbitration agreement – Disputes and differences – Award of Rs.18,97,729.37 with interest in favour of contractor who accepted the final bill – Does not mean that contractor is not entitled to raise any claim – It is not case of appellant that while accepting the final bill, contractor had unequivocally stated that he would not raise any further claim – In absence of such a declaration contractor is not estopped or precluded from raising any claim. (Bharat Coking Coal Ltd. Vs M/s.Annapurna Construction) 2003(2) Apex Court Judgments 514 (S.C.)

Arbitration award – Setting aside – When arbitration applied his mind to the pleadings, evidence adduced before him and the terms of the contract, there is no scope for the Court to reappreciate the matter if this was an appeal – Even if two views are possible, the view taken by the arbitrator would prevail – So long as an award made by an arbitrator can be said to be one by a reasonable person no interference is called for – However, in cases where an arbitrator exceeds the terms of the agreement or passes an award in absence of any evidence, which is apparent on the face of the award, the same can be set aside. (Bharat Coking Coal Ltd. Vs L.K.Ahuja) 2004(2) Apex Court Judgments 412 (S.C.) : 2004(3) Civil Court Cases 444 (S.C.)

Arbitration award – An award could be good as regard one part thereof and bad as regards the rest. (K.K.John Vs State of Goa) 2004(1) Apex Court Judgments 142 (S.C.) : 2004(2) Civil Court Cases 280 (S.C.)

Arbitration award – Part of the award remitted to arbitrator – Valid part of award is enforceable even during pendency of adjudication upon the remitted part. (K.K.John Vs State of Goa) 2004(1) Apex Court Judgments 142 (S.C.) : 2004(2) Civil Court Cases 280 (S.C.)

Arbitration award – Set aside by appellate authority – Application for making award rule of Court is liable to be dismissed as award itself is set aside. (M/s.Uptron India Ltd. Vs Union of India & Anr.) 2004(1) Apex Court Judgments 540 (S.C.)

Arbitrator one of the witnesses to the arbitration agreement – By itself not a disqualification to his becoming arbitrator, in absence of any further allegation or material, about his bias against, or in favour of, one of the parties. (Pukh Raj Vs Magh Raj) 2005(2) Civil Court Cases 387 (Rajasthan)

Arbitration award – Objections to the award  – Limitation –  30 days after the required notice regarding filing of award in the Court is given to the parties – Mere knowledge of passing of an award is not enough. (Bharat Coking Coal Ltd. Vs L.K.Ahuja) 2004(2) Apex Court Judgments 412 (S.C.) : 2004(3) Civil Court Cases 444 (S.C.)

Arbitration – Certain disputes excluded by agreement from being referred to arbitrator – Award of arbitrator on such matters – Amounts to exercise of jurisdiction in excess – Award on such matters set aside being without jurisdiction. (Food Corporation of India Vs Surendra) 2003(3) Civil Court Cases 301 (S.C.)  : 2003(2) Apex Court Judgments 73 (S.C.)

Arbitral proceedings not maintainable at the instance of an unregistered firm – Firm must be registered at the time of institution of suit and not later on. (U.P.State Sugar Coprn. Ltd. Vs Jain Construction Co. & Anr.) 2005(1) Apex Court Judgments 205 (S.C.) : 2005(1) Civil Court Cases 371 (S.C.)

Arbitration – Withdrawal of petition – Permission to file fresh petition not sought – Appellant stayed away and abandoned his case on the very existence of the main agreement as well as the arbitration clause by withdrawing that petition – Held, he is precluded thereafter by virtue of O.23.R.1(4) CPC from asserting that they in fact existed. (M/s Kishan Chand Surendra Kumar Vs Delhi School Teachers Co-operative House Building Society Ltd.) AIR 2002 Delhi 330

Arbitrator – No dispute exists when matter is specifically dealt with and provided under the insurance policy. (M/s Ashok Industries  Vs The United India Fire & General Insurance Company Ltd.) 2004(2) Civil Court Cases 504 (P&H)

Scope – Arbitration – Before passing order for filing agreement, Court must record satisfaction that there exists dispute between parties – Dispute on all issues already settled by competent civil Court – Foundation for claim itself not being in existence, no ground to refer dispute – Non existent dispute cannot be referred – Application is barred by principle of res judicata. (Lloyds Steel Industries Ltd. Vs Oil India Ltd.) 2003(2) Civil Court Cases 468 (Rajasthan) 

Interest – Subordinate Judge did not grant interest in terms of S.29 of the Act – Granted by High Court in exercise of power u/s 152 CPC – Not justified – Remedy of respondent was either to prefer an appeal or to file a review petition. (Bharat Coking Coal Ltd. Vs M/s.Annapurna Construction) 2003(2) Apex Court Judgments 514 (S.C.)

‘Finding’ – Not giving reasons – Does not offend word ‘finding’ – No misconduct can be attributed to Arbitrator – If Arbitrator allowed a particular claim whether fully or partially, or declines to award any sum, the findings of arbitrator had been impliedly given. (Uttam Singh Duggal & Sons Vs Union of India) AIR 2002 Delhi 471

Arbitration award – Objections to award – Court exercises a very limited jurisdiction while adjudicating upon an objection to the award in terms of Section 30 of the Arbitration Act, 1940. (M/s Continental Construction Ltd. Vs State of U.P.) 2003(2) Apex Court Judgments 372 (S.C.)

Arbitration award – Once it is found that view of the arbitrator is a plausible one, Court will refrain itself from interfering. (State of U.P. Vs Allied Constructions) 2003(2) Apex Court Judgments 337 (S.C.)

Arbitration award – Provision for setting aside an award is restrictive in its operation – Unless one or the other condition contained in the provision is satisfied, an award cannot be set aside. (State of U.P. Vs Allied Constructions) 2003(2) Apex Court Judgments 337 (S.C.)

Arbitration award – Setting aside – Arbitration award cannot be set aside on ground of grant or refusal of adjournment by arbitrator. (Hari Om Maheshwari Vs Vinitkumar Parikh) 2005(1) Apex Court Judgments 263 (S.C.) : 2005(1) Civil Court Cases 609 (S.C.)

Arbitration award – Setting aside – Arbitrator while formulating the award awarded amount in full and final settlement of the claim of claimant as set out in statement of facts and the counter claim of respondent – Conclusion of High Court that arbitrator has not considered the counter claim not proper. (J.G.Engineers Pvt.Ltd. Vs Calcutta Improvement Trust) AIR 2002 S.C. 766

Arbitration award – Setting aside – Court can set aside award if arbitrator has misconducted himself or the proceedings – Jurisdiction of Court with a non speaking award is very limited. (D.D.Sharma Vs Union of India) 2004(2) Apex Court Judgments 110 (S.C.) : 2004(3) Civil Court Cases 137 (S.C.)

Award – Setting aside – Contract – Construction of – Correspondence exchanged by the parties is required to be taken into consideration for the purpose of construction of a contract – Interpretation of a contract is a matter for the Arbitrator to determine, even if it gives rise to determination of a question of law – If construction of agreement fell for consideration of the Arbitrator, the determination thereupon shall not ordinarily be interfered with – If award is not speaking one, the averments made therein should be accepted at their face value unless contrary is proved by the party questioning the validity of the award. (D.D.Sharma Vs Union of India) 2004(2) Apex Court Judgments 110 (S.C.) : 2004(3) Civil Court Cases 137 (S.C.)

Contract – Non performance – Damages – Non supply of goods as per agreement – Provisions of risk purchase made in the contract – Arbitrator can award the difference of cost of the goods as damage for non-performance of part of the contract. (M/s Indian Hardware & Forgings Vs Haryana State Elect. Board) 2003(2) Civil Court Cases 609 (P&H) 

 Misconduct – If one part of the award is inconsistent  with the other and furthermore if in determining the disputes between the parties the arbitrator failed to take into consideration the relevant facts or based his decision on irrelevant factors not germane therefor, the arbitrator must be held to have committed a legal misconduct. (Union of India Vs M/s V.Pundarikakshudu & Sons & Anr.) 2003(2) Apex Court Judgments 586 (S.C.)

Role of an arbitrator is to arbitrate within the terms of the contract – If arbitrator travels beyond contract he would be acting without jurisdiction – If arbitrator remains within the parameter of the contract then award cannot be questioned on the ground that it contains an error apparent on the face of the record. (Bharat Coking Coal Ltd. Vs M/s.Annapurna Construction) 2003(2) Apex Court Judgments 514 (S.C.)

 Sole arbitrator – Proposed by one party and not responded to by the other party – There is no implied consent or acquiescence of the other party – Sole arbitrator appointed without intervention of the Court – Arbitration award is nullity – Award to be set aside even if objections are filed beyond period of limitation prescribed under Article 119(b) of Limitation Act, 1963. (Limitation Act, 1963, Art.119(b). (Dharma Prathishthanam Vs M/s Madhok Construction Pvt. Ltd.) 2005(1) Apex Court Judgments 330 (S.C.) : 2005(1) Civil Court Cases 713 (S.C.)

Arbitration clause in agreement required Arbitrator to give his findings on each item of dispute – Word ‘finding’ when read with expression ‘on each item of dispute’ means ‘reasons’ in support of the conclusion – Award without reasons in support of conclusion is liable to be set aside. (M/s.Gora Lal Vs Union of India) 2004(1) Apex Court Judgments 431 (S.C.)

It is within jurisdiction of Arbitrator to interpret a clause in the Agreement having regard to the fact situation obtaining therein. (State of U.P. Vs Allied Constructions) 2003(2) Apex Court Judgments 337 (S.C.)

Arbitration award – Setting aside – Territorial jurisdiction – Defendant a corporate office and contract carried out from its subordinate office – Later part of Expln. to S.20(a) would be attracted – Court within whose jurisdiction subordinate office of Corporation is situated, would alone have jurisdiction to entertain dispute – Merely because sole Arbitrator conducted proceeding in Delhi where principal office was situated would not clothe Delhi High Court with jurisdiction. (M/s B.S.Virdi Electric Works Vs Union of India) AIR 2002 Delhi 318

Bias – Actual bias denotes an arbitrator who allows a decision to be influenced by partiality or prejudice and thereby deprives the litigant of the fundamental right to a fair trial by an impartial tribunal. (Bihar State Mineral Dev Corpon. & Anr. Vs Encon Builders (I) Pvt.Ltd.) 2003(3) Civil Court Cases 462 (S.C.) : 2003(2) Apex Court Judgments 271 (S.C.)

Arbitration – Adjournment sought for filing written statement – By itself does not mean that defendant has given up his right to initiate arbitration proceedings. (Capp International Pvt.Ltd. Vs SIDCO) 2003(1) Civil Court Cases 516 (Kerala)  

Award passed under Arbitration Act, 1940 – Remedy of filing appeal or petition for setting aside award would be as per provisions of the Old Act and not under Arbitration and Conciliation Act, 1996. (M/s N.S.Nayak & Sons Vs State of Goa) 2003(2) Apex Court Judgments 197 (S.C.)

New Act – Applicability – Once arbitral proceedings have started under old Act then old Act will apply for award becoming decree and for appeal arising thereunder. (M/s N.S.Nayak & Sons. Vs State of Goa) 2003(2) Civil Court Cases 713 (S.C.) 

Arbitration Act, 1940, S.39 – Appeal – Cross objections can be filed – However, if appeal is dismissed as not maintainable then cross objections shall also fail and cannot be heard or decided on merits. (Municipal Corporation of Delhi & Ors. Vs International Security & Intelligence Agency Ltd.) 2003(1) Apex Court Judgments 345 (S.C.)

Arbitration Act, 1940, S.39 – Appeal – Cross objects are maintainable if applicant could have sought for the same relief by filing an appeal in conformity with the provisions of S.39 of the Act – If cross objection does not fall within the purview of any of the categories contemplated by clauses (i) to (vi) of sub-section  (1) of S.39 of the Act then cross objection shall not be maintainable. (Municipal Corporation of Delhi & Ors. Vs International Security & Intelligence Agency Ltd.) 2003(1) Apex Court Judgments 345 (S.C.)

Arbitration Act, 1940, S.39(1)(i) – Trial Court held that clause in the agreement did not constitute arbitration agreement – Appeal could not  be maintained as arbitration agreement was not superseded. (Bihar State Mineral Dev Corpon. & Anr. Vs Encon Builders (I) Pvt.Ltd.) 2003(2) Apex Court Judgments 271 (S.C.) : 2003(3) Civil Court Cases 462 (S.C.)

Arbitration and Concilaition Act, 1996, S.2(c) – nterim award – Award includes interim award – Procedural orders are excluded. (Harinarayan G.Balaji Vs Sharedeal Financial Consultations Pvt.Ltd.) AIR 2003 Bombay 296

Arbitration and Conciliation Act, 1996, Ss.2(e), 8, 34 & 42 – Arbitration award – Challenge to – Can be challenged in the Court as defined under S.2(e) and not before the Court in which application u/s 8 was made. (M/s Jagdish Raj & Brothers Vs Jagdish Raj) 2003(1) Civil Court Cases 367 (P&H) 

Arbitration and Conciliation Act, 1996, Ss.6(1), 8 & 16, Interest on Delayed Payments to Small Scale and Ancillary Industrial Undertakings Act, 1994, S.6 – Claim petition filed before Council – Council issued notice to respondent – Respondent filed civil suit for declaration that claim petition of appellant is ultra vires provisions of the Act – Civil Court denied interim stay – In appeal High Court by interim order stayed proceedings before Council on ground that no notice was served by appellant on respondent u/s 21 of 1996 Act – Proceedings before Council are proceedings under 1996 Act pursuant to deemed agreement between parties to dispute – If validity of proceedings before Arbitral Tribunal was an issue then it is Council and not Court which could decide u/s 16 of 1996 Act – Whether notice given was a notice u/s 21 and whether giving of notice u/s 21 was to be construed as pre-condition to exercise of jurisdiction by Council were the questions which Council could decide – High Court has no jurisdiction to stay proceedings. (Secur Industries Ltd. Vs M/s.Godrej & Boyce Mfg. Co.Ltd. & Anr.) 2005(1) Civil Court Cases 224 (S.C.) : 2005(1) Apex Court Judgments 491 (S.C.)

Arbitration and Conciliation Act, 1996, S.7 – Arbitration agreement – Must be in writing and signed by both the parties – Arbitration clause contained in the letter signed by the petitioner alone is not a valid arbitration agreement. (Pramod Chimanbai Patel  Vs Lalit Constructions) 2003(1) Civil Court Cases 231 (Bombay) 

Arbitration and Conciliation Act, 1996, S.7(4) – Arbitration – In absence of written agreement between parties agreeing to refer any dispute arising for arbitration, matter cannot be referred for arbitration by the Court – Mere participation in the proceedings would not tantamount to acceptance of the jurisdiction of the Arbitrator to arbitrate disputes between the parties. (Travancore Devaswom Board Vs Panchami Pack Pvt. Ltd.) 2005(1) Civil Court Cases 605 (S.C.)

Arbitration and Conciliation Act, 1996, S.8 – Clause in partnership deed that only such matters are referable to arbitration which are not specifically mentioned in the deed of partnership – Matter/dispute which is specifically dealt with in the deed of agreement/partnership cannot be referred to arbitrator. (M/s Ahluwalia & Co. & Ors. Vs Surinder Mohan & Ors.) 2004(2) Civil Court Cases 488 (P&H)

Arbitration and Conciliation Act, 1996, S.8 – Part of subject matter of suit when includes arbitration agreement and in between certain parties to the suit – Held, dispute cannot be referred to arbitration as splitting of cause of action or parties is not permissible. (Sukanya Holdings Pvt Ltd. Vs Jayesh H.Pandya & Anr.) 2003(1) Apex Court Judgments 683 (S.C.)

Arbitration and Conciliation Act, 1996, S.8 – Words ‘A matter’ – Indicates entire subject matter of suit should be subject to arbitration agreement. (Sukanya Holdings Pvt Ltd. Vs Jayesh H.Pandya & Anr.) 2003(1) Apex Court Judgments 683 (S.C.)

Arbitration and Conciliation Act, 1986, S.8, Civil Procedure Code, 1908, S.115, Constitution of India, Art.227 – Application declining to appoint Arbitrator – Revision against – Not maintainable – However, revision treated to be one under Art. 227 Constitution of India as trial Court had not dealt the various pleas raised by the petitioner and the provisions of the Act also not taken into consideration by the trial Court. (Monica Electronics Limited Vs M/s R.V.A. Associates) 2004(2) Civil Court Cases 387 (P&H)

Arbitration and Conciliation Act, 1986, Ss.8 & 16  – Application for referring the matter to arbitrator – Arbitrator has the jurisdiction to decide the existence or validity of the agreement itself. (Monica Electronics Limited Vs M/s R.V.A. Associates) 2004(2) Civil Court Cases 387 (P&H)

Arbitration and Concilaiton Act, 1996, S.8 – Dispute – Reference to arbitration – Neither original arbitration agreement nor its certified copy filed – Rejection of reference is justified – Rejection on ground that written statement not filed is however not proper. (India Lease Development Ltd. Vs Thimmakka) AIR 2003 Karnataka 97

Arbitration and Concilaiton Act, 1996, S.8(1) and (2) – Arbitration – Existence of arbitration agreement is condition precedent – Agreement to sell – Plea that arbitration agreement did not survive in view of supersession of agreement with a fresh one – No mention in second agreement that first agreement stood superseded – Handwritten endorsement on top of second agreement clearly showing that it was in continuation of first agreement – Second agreement executed to modify certain terms and conditions and not to override first agreement – Plea thus not sustainable – Dispute ordered to be referred to arbitrator. (A.K.Jaju Vs Avni Kumar) AIR 2003 Delhi 364

Arbitration and Reconciliation Act, 1996, Ss.8 & 11 – Original agreement or certified copy when not produced then reference to Arbitrator is not valid. (M/s Shree Krishna Rice Mills Vs The Punjab State Co-operative Supply and Marketing Federation Ltd.) 2003(2) Civil Court Cases 167 (P&H) 

Arbitration and Conciliation Act, 1996, S.9 – Receiver – Application for appointment – Dispute among 12 persons who are, or are alleged to be or claim to be partners in a firm – Partners grouped into three groups ‘A’, ‘B’ & ‘C’ – Complaints by members of group ‘A’ of violating their rights at the hands of group ‘B’ – Application filed under S.9(ii)(d) of the Act for appointment of a receiver, to take charge of entire business of firm –  Group ‘A’ having 20% share in partnership business and group ‘B’ having 18% share – Group ‘C’ having 62% share not contesting, vocally supported group ‘B’ standing by its side – Group ‘B’ was running business upto the date of passing of order by High Court – High Court appointing receiver – Order appointing receiver maintained with modifications. (Firm Ashok Traders & Anr. Vs Gurmukh Das Saluja & Ors.) 2004(1) Apex Court Judgments 148 (S.C.)

Arbitration and Conciliation Act, 1996, S.9 – Proceedings pending – Interim relief – Relief of restraining Electricity Board from recovering amount of electricity bill – Consumption of electricity by petitioner on account of fraudulent abstraction – Does not come within ambit of dispute arising from breach or non-compliance of terms of agreement – No relief can be granted to petitioner under S.9. (Baby Arya Vs Delhi Vidyut Board) AIR 2002 Delhi 50

Arbitration and Conciliation Act, 1996, Ss.10, 4, 16 and 34(2)(a)(v) – Arbitration Tribunal – Number of arbitrators – S.10 providing that number of arbitrators shall not be an even number is a derogable provision – Parties agreed upon an even number of arbitrators – Objection as to composition of Arbitral Tribunal not taken before Arbitral Tribunal itself or within time prescribed under S.16(2) – There will be a deemed waiver of objection under S.4 – Award so passed by Arbitral Tribunal cannot be set aside under S.34(2)(a)(v) because composition of tribunal was in accordance with agreement between parties. (Narayan Prasad Lohia Vs Nikunj Kumar Lohia) AIR 2002 S.C. 1139

Arbitration and Conciliation Act, 1996, Ss.10, 16, 30 & 31 – Arbitration award – Single Judge set it aside on many grounds – D.B. considered only two grounds and disposed of the appeals – Appeal to Supreme Court – Held, D.B. should have given decision on all grounds on which award had been set aside by Single Judge – Remand to D.B. to consider the other grounds also. (Narayan Prasad Lohia Vs Nikunj Kumar Lohia & Ors.) 2003(2) Apex Court Judgments 131 (S.C.)

Arbitration and Conciliation Act, 1996, Ss.11, 16 – Dispute as to existence of arbitration agreement – Dispute be referred to arbitrator who is to decide the question of existence and validity of the arbitration agreement. (Hythro Power Corporation Ltd. Vs Delhi Transco Ltd.) 2003(2) Apex Court Judgments 487 (S.C.)

Arbitration and Conciliation Act, 1996, Ss.11, 13 – Arbitrator – Failure of appointing authority to forward panel of names for selection by contractor – Appointing authority failing to select any person from panel forwarded by contractor – Contractor invoking his powers of appointment as per terms of agreement and appointing sole arbitrator – Chief Justice cannot interference and appoint sole arbitrator. (M/s Ranjul Baruah Vs M/s Numaligarh Refinery Ltd.) AIR 2002 Gauhati 85

Arbitration and Conciliation Act, 1996, S.11 – Arbitration clause – Each party to appoint one arbitration – One of the parties appointing arbitrator but other party failing to appoint within 30 days inspite of notice – Court in such circumstances appointed arbitrator. (M/s Shrolenson Harbaniang Vs North Eastern Electric Power Corporation Ltd.) AIR 2002 Gauhati 128

Arbitration and Conciliation Act, 1996, S.11 – Arbitration clause in agreement – However subsequent agreement entered into between parties modifying terms of payment schedule and not terms of original agreement, did not contain arbitration clause – Not relevant. (Stracon India Ltd. Vs UTV Software Communication Ltd.) AIR 2002 Delhi 209

Arbitration and Conciliation Act, 1996, S.11 – Concurrent jurisdiction of two High Courts to entertain petition for appointment of arbitrator – High Court to whom request for such appointment has been made first shall alone be competent to entertain petition for appointment of arbitrator. (Bhagyanagar Metals Limited Vs Bharat Sanchar Nigam Limited) 2005(1) Civil Court Cases 255 (A.P.)

Arbitration and Conciliation Act, 1996, S.11 – Territorial Jurisdiction – Arbitration agreement  providing adjudication of disputes by courts at Delhi – Letter of authorization issued by Delhi office in favour of their office at Madhya Pradesh – Jurisdiction of courts at Delhi terminates – Order placed by Madhya Pradesh office and accepted  at Secundrabad by petitioner – Part of cause of action arose at Secundrabad – Held, Andhra Pradesh High Court  has got jurisdiction to appoint arbitrator within whose jurisdiction part of cause of action arose. (Bhagyanagar Metals Limited Vs Bharat Sanchar Nigam Limited) 2005(1) Civil Court Cases 255 (A.P.)

Arbitration and Conciliation Act, 1996, S.11 (5) and (6) – Arbitrator – Appointment by Court – Parties failed to appoint Arbitrator within 30 days of request made by one party to other – Obligatory upon Court to appoint arbitrator without going into contentious issues regarding clauses of tender documents. (Bhagyanagar Metals Limited Vs Bharat Sanchar Nigam Limited) 2005(1) Civil Court Cases 255 (A.P.)

Arbitration and Concilaition Act, 1996, S.11 – Arbitrator – Appointment – Arbitrator appointed after 30 days from demand made by opposite party – llegal. (M/s R.S.Avtar Singh and Co. Vs India Tourism) AIR 2003 Delhi 249

Arbitration and Concilaition Act, 1996, S.11(6) – Arbitrator – Application to Chief Justice – Limitation – No specific period prescribed by Act – Limitation is 3 years as provided under Art.137 of Limitation Act – It is to be counted from date on which thirty days from date of notice, by one party to other party for appointing Arbitrator expired and arbitrator was not appointed by other party. (M/s P.B.enterprises Vs Eastern Coalfields Limited) AIR 2004 Jharkhand 71

Arbitration and Concilaition Act, 1996, S.11(6) – Arbitrator – Appointment – Agreement providing appointment of sole arbitrator – Applicant requesting opponent party for reference of dispute to such sole arbitrator but opposite party remaining silent – Agreed arbitrator not acting as arbitrator – Applicant can make request to Chief Justice for appoint of arbitrator – Plea by opposite party that only arbitrator named in arbitration clause can act as arbitrator – Misconceived. (M/s Universal Construction and Trading Company Vs Garhwal Mandal Vikas Nigam Ltd.) AIR 2004 Allahabad 115

Arbitration and Concilaition Act, 1996, S.11(6) – Arbitrator – Appointment – Order of appointment would be taken to have been made when communicated and received by Arbitrator and concerned party. (M/s R.S.Avtar Singh and Co. Vs India Tourism) AIR 2003 Delhi 249

Arbitration and Conciliation Act, 1996, S.11(6)(a) – Contract regarding water supply scheme – Parties intending that any dispute arising between them should be decided by Commissioner – It is an arbitration clause irrespective of the fact that words ‘arbitrator’ or ‘arbitration’ are not used in such clause – Commissioner failing to enter upon reference as an arbitration within 30 days of the receipt of notice – Hence, arbitrator appointed u/s 11(6)(c) of the Act. (SPM Engineers Ltd. Vs Guwahati Municipal Corporation) AIR 2002 Gauhati 114

Arbitration and Concilaition Act, 1996, Ss.11, 16, 34 – Dispute whether arbitrable or not – Chief Justice keeping preliminary issue open and permitting parties to raise such question before arbitral tribunal – Not unjust, unreasonable in view of Ss.16 and 34. (New India Assurance Co.ltd. Vs Hanjer Fibres Ltd.) AIR 2003 Gujarat 311

Arbitration and Concilaition Act, 1996, Ss.11, 16 – Arbitrator – Appointment – Extra work – Dispute as to payment – Agreement providing to appoint sole arbitrator to be mutually agreed upon as such arbitrator appointed to adjudicate said dispute between parties – Further question of limitation of giving notice for appointment of arbitrator also can be adjudicated upon by arbitrator. (M/s Builder and Associates Vs RIICO) AIR 2004 Rajasthan 81

Arbitration and Conciliation Act, 1996, S.15 – Replacement of arbitrator – Arbitrator failing to make award within stipulated period – Trial Court directed the parties to submit a panel of arbitrators out of which Court could appoint an arbitrator – Plea of petitioner that under clause 25 only nominee of the registrar could be appointed and only if such a nominee refuses to function as an arbitrator, another arbitrator could be appointed – Held, in absence of any agreed procedure for filling up of vacancy, Court is justified in appointing an arbitrator other than the one named in the arbitration agreement. (Haryana State Cooperative Supply and Marketing Federation Ltd. Vs National Trading Company) 2004(2) Civil Court Cases 374 (P&H)

Arbitration and Conciliation Act, 1996, S.16 – Injunction suit restraining defendant from proceeding with arbitration proceedings – Plea that there was no arbitration agreement between parties – Such objection to be raised before arbitral Tribunal who is empowered to rule about its own jurisdiction – Contentious issues not to be gone into at stage of appointment of arbitrator – Injunction granted by holding that objection as to existence of arbitration agreement can be taken either before arbitrator or by way of suit, not proper. (Shree Subhlaxmi Fabrics Pvt.Ltd. Vs Chand Mal Baradia & Ors.) 2005(2) Civil Court Cases 227 (S.C.)

Arbitration and Concilaition Act, 1996, Ss.16(5), (6) & 34 – Arbitrator – Jurisdiction – Power to decide jurisdiction vests with arbitrator – Aggrieved party may challenge u/s 16(6) after arbitration proceedings is over and award is made. (Assam Urban Water Supply and Sewerage Board Vs M/s Subhas Project and Marketing Ltd.) AIR 2003 Gauhati 146

Arbitration and Conciliation Act, 1996, Ss.16, 37 – Jurisdiction – Arbitral Tribunal has power to rule on its own jurisdiction – Order that Arbitral Tribunal has jurisdiction can be challenged only after arbitration proceedings are over and award is made. (BASF Styrenics Pvt.Ltd. Vs Offshore Industrial Construction Pvt.Ltd.) AIR 2002 Bombay 289

Arbitration and Reconciliation Act, 1996, S.16 – Clause in the agreement that remedy of any dispute which is provided in the agreement then matter cannot be referred to Arbitrator – Held, when there is such a clause in the agreement then dispute, the remedy of which is provided in the agreement cannot be referred to Arbitrator. (M/s Shree Krishna Rice Mills Vs The Punjab State Co-operative Supply and Marketing Federation Ltd.) 2003(2) Civil Court Cases 167 (P&H) 

Arbitration and Conciliation Act, 1996, S.21 – Arbitral proceedings in respect of a dispute commences on a date on which the request for that dispute to be referred to arbitration was received. (U.P.State Sugar Coprn. Ltd. Vs Jain Construction Co. & Anr.) 2005(1) Apex Court Judgments 205 (S.C.) : 2005(1) Civil Court Cases 371 (S.C.)

Arbitration and Conciliation Act, 1996, Ss.25-A, 31(7)(a)(b), Interest Act, 1978, S.3(7)(9) – Interest – Pre-reference period – Arbitrator has jurisdiction to award interest in respect of pre-reference period. (Haryana State Agri. Marketing Board Vs Jagdish Chand) 2003(2) Civil Court Cases 23 (P&H) 

Arbitration and Conciliation Act, 1996, S.31 – Damages – Application of principle of compensation under S.73 Contact Act by Arbitrator – Held, not proper – Moreso, when purchaser failed to prove damages it suffered or compensation claimed by its customer from it for non performance. (Thyseen Vs Steel Authority of India) AIR 2002 Delhi 255

Arbitration and Concilaition Act, 1996, S.31 – Arbitration award – Not invalid merely because it does not subscribe to any particular format – Unstamped or insufficiently stamped award is a curable irregularity. (M/s Subhas Projects & Marketing Ltd. Vs Assam Urban Water Supply and Sewerage Board) AIR 2003 Gauhati 158

Arbitration and Concilaition Act, 1996, S.31(7) – Interest – Payment not made to contractor for 16 years – Award of interest at rate of 10% – Discretion of arbitrator not liable to be interfered with. (M/s Continental Construction Ltd. Vs Food Corporation of India) AIR 2003 Delhi 32

Arbitration and Concilaition Act, 1996, S.31(7) – Interest – Pendente lite – Cannot be granted in absence of claim in that regard. (Em and Em Associates Vs Delhi Development Authority.) AIR 2003 Delhi 128

Arbitration and Conciliation Act, 1996, S.34, Indian Contract Act, 1872, Ss.73, 74 – Arbitration award – Damages – In arbitration proceedings, the arbitral tribunal is required to decide the dispute in accordance with the terms of the contract. (Oil & Natural Gas Corporation Ltd. Vs SAW Pipes Ltd.) 2003(2) Apex Court Judgments 221 (S.C.)

Arbitration and Conciliation Act, 1996, S.34 – Arbitration award – Grounds for setting it aside are  (i) a party was under some incapacity, or (ii) the arbitration agreement is not valid under the law; (iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or (iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration – (2) Court may set aside the award, if (a) if the composition of the arbitral tribunal was not in accordance with the agreement of the parties; (b) failing such agreement, the composition of the arbitral tribunal was not in accordance with Part-I of the Act; (ii) if the arbitral procedure was not in accordance with, (a) the agreement of the parties, or (b) failing such agreement, the arbitral procedure was not in accordance with Part-I of the Act – However, exception for setting aside the award on the ground of composition of arbitral tribunal or illegality of arbitral procedure is that the agreement should not be in conflict with the provisions of Part-I of the Act from which parties cannot derogate; (c) If the award passed by the arbitral tribunal is in contravention of provisions of the Act or any other substantive law governing the parties or is against the terms of the contract; (3) The award could be set aside if it is against the public policy of India i.e. it is contrary to (a) fundamental policy of Indian law; (b) the interest of India; or (c) justice or morality; or (d) if it is patently illegal – (4) It could be challenged (a) as provided under Section 13(5): and (b) Section 16(6) of the Act. (Oil & Natural Gas Corporation Ltd. Vs SAW Pipes Ltd.) 2003(2) Apex Court Judgments 221 (S.C.)

Arbitration award – If award is contrary to the substantive provision of law or the provisions of the Act or against the terms of the contract, it would be patently illegal which can be interfered with u/s 34 of the Act – Such failure of procedure should be patent affecting the rights of the parties. (Oil & Natural Gas Corporation Ltd. Vs SAW Pipes Ltd.) 2003(2) Apex Court Judgments 221 (S.C.)

Arbitration award – Interest – Quantum of interest and period of interest – When Arbitrator has considered all the claims including the claim of interest, it is not open to the Court to go into the quantum of interest or the period of interest and that is an issue which is solely within the jurisdiction of the Arbitrator to decide and grant the same. (Environmental Engineer Inc. Vs Maharashtra Pollution Control Board) 2004(2) Civil Court Cases 569 (Bombay)

Record – Inspection by Arbitrator – Arbitrator can inspect any record after due notice to both the parties – Contention that arbitrator carried out inspection behind back of party cannot be accepted when he had given notice to both the parties. (Environmental Engineer Inc. Vs Maharashtra Pollution Control Board) 2004(2) Civil Court Cases 569 (Bombay)

‘Public policy of India’ – Meaning – Wider meaning is required to be given. (Oil & Natural Gas Corporation Ltd. Vs SAW Pipes Ltd.) 2003(2) Apex Court Judgments 221 (S.C.)

Arbitration award – Setting aside – Objection u/s 34 not filed – Cannot be permitted to raise the question of jurisdiction of the arbitral tribunal to pass the interim award in question in its objections resisting the execution of the award. (M/s Subhas Projects & Marketing Ltd. Vs Assam Urban Water Supply and Sewerage Board) AIR 2003 Gauhati 158

Award – Agreement – Interpretation – Cannot be said to be not possible – Award of arbitrator not liable to be set aside. (Em and Em Associates Vs Delhi Development authority) AIR 2003 Delhi 128

Finding of fact by arbitrator based on certain facts – Even if two views are possible High Court would not  interfere. (M/s Continental Construction Ltd. Vs Food Corporation of India) AIR 2003 Delhi 32

Arbitration award – Setting aside – Application to be filed in Court as defined under S.2(e) of the Act and not in the high Court merely because application for appointment of Arbitrator was filed before it. (Union of India Vs C.Subba Reddy) AIR 2004 Karnataka 210

Award – Setting aside – Delay – Condonation – Consideration of provision of S.14 Limitation Act not excluded. (HMP Engineers Ltd. Vs Rallis India Ltd.) AIR 2004 Bombay 71

Jurisdiction – Question not raised before arbitrator – Cannot be raised for the first time before Court in an application for setting aside award. (M/s Sarkar Enterprises Vs M/s Garden Reach Shipbuilders and Engineers ltd.) AIR 2002 Calcutta 65

Arbitration award – Setting aside – Court examining terms of contract and interpreting them for purpose of deciding whether claims were covered by the terms of contract – Court also examining merits of dispute and further more arriving at different conclusion – Order of Court illegal. (M/s Friends Coal Carbonisation Vs Hindustan Zinc Ltd.) AIR 2002 Raj.116

Arbitration award – Setting aside – Mental process of arbitrator about sufficiency of evidence – Cannot be probed in application under S.34 – Insufficiency of evidence – Cannot nullify award. (M/s Sarkar Enterprise Vs M/s Garden Reach Shipbuilders and Engineers Ltd.) AIR 2002 Calcutta 65

Arbitration award – Validity – Unnatural death of school going girl – In claim for compensation by father against State matter referred to arbitration – Arbitrator by overlooking recommendations made by Taluka Social Welfare Officer to grant 2 acres of land, granting 4 acres of land – Held, award to that extent vitiated as allotment was not in recognition of any statutory enactment but was only by way of compassion. (State of Karnataka Vs Siddaiah) AIR 2002 S.C. 397

Award – Execution – Legal misconduct by arbitrator – Cannot be decided in execution as it is not a question relating to execution, discharge or satisfaction of the decree but involves the determination of the manner in which the Arbitrator conducted the proceedings. (Indian Commercial Co.Ltd. Vs Amrish Kilachand) AIR 2002 Bombay 391

Award – Setting aside – Suppression of certain evidence by witness – Cannot be said that award is vitiated by fraud on that ground. (Indian Commercial Co.Ltd. Vs Amrish Kilachand) AIR 2002 Bombay 391

Arbitration and Conciliation Act, 1996, S.34(2)(a)(iv) – Decision beyond scope of reference – Claim submitted by parties in respect of base price, how the base price was determined, whether the change in raw material was used by the supplier in the knowledge and with the consent of owner and whether supplier was entitled for the benefit of clauses of price escalation – Documentary evidence showing above matters were referred to arbitrator – Matter argued before arbitrator without any objection as to jurisdiction of arbitrator to decide the matter – Arbitrator award regarding entitlement of supplier for escalation of price after determining base price – Not beyond scope of reference – Moreso, as without determining base price escalation could not be determined. (M/s Friends Coal Carbonisation Vs Hindustan Zinc Ltd.) AIR 2002 Raj.116

Arbitration and Concilaition Act, 1996, Ss.36, 37(1)(b) – Award – Refusal to set aside – Appeal pending in Supreme Court – ‘Refusal’ contemplated in S.36 is refusal by Court of first instance and not by appellate Court – It does not imply final refusal after all remedies, including appeal which is continuation of original proceedings, are exhausted. (Vipul Agarwal Vs M/s Atul Kanodia & Co.) AIR 2004 All. 205

Arbitration and Conciliation Act, 1996, Ss.36, 85 &  Arbitration Act, 1940, Ss.14, 17 – At the time of pronouncement of award new Act coming into force – Both parties had proceeded on basis that provisions of old Act would apply and award shall also be given by arbitrator under Old Act – No agreement between parties to act under new Act – In such case, it is old Act which is applicable. (M/s J.P.N. Singh Vs M/s National Building Construction Corporation Ltd.) AIR 2004 Delhi 350

Arbitration and Conciliation Act, 1996, Ss.42, 2(e), 34 – Award – Setting aside – Jurisdiction – Application to be filed in ‘Court’ as defined in S.2(e) – High Court exercising extra-ordinary jurisdiction under Art.226 and Art.227 of Constitution does not come within purview of S.2(e). (M/s Godara Construction Company Vs The State of Rajasthan & Ors.) 2004(2) Civil Court Cases 38 (Rajasthan)

Arbitration and Conciliation Act, 1996, S.47 – Foreign award – Enforcement – Award certified and attested as final award – Held, such award can be put in execution directly without applying for determination of enforceability of award. (Euro Asia Chartering Corporation (Pte.) Ltd. Vs Fortune International Limited) AIR 2002 Bombay 447

Arbitration and Conciliation Act, 1996, S.49 – Foreign award – Execution as decree – Court is required to record its satisfaction that such award is enforceable – This, however, does not mean that Court cannot pass any interim order in order to protect interest of person applying. (M/s Centrotrade Minerals and Metals Inc. Vs Hindustan Copper Ltd.) AIR 2004 Calcutta 142

Arbitration and Conciliation Act, 1996, S.85, Arbitration Act, 1940, Ss.8, 20 – Arbitration proceedings – Commencement – Commences from date of filing of plaint and not from date when notice for appointment of arbitration is served – Plaint filed after enforcement of new Act – Provisions of new Act are applicable. (M/s Womco Ltd. Vs Vikram Singh) AIR 2002 Allahabad 272

Arbitration and Conciliation Act, 1996, S.85 – Arbitral proceedings commenced before coming into force the 1996 Act – Provisions of 1940 Act shall apply. (U.P.State Sugar Coprn. Ltd. Vs Jain Construction Co. & Anr.) 2005(1) Apex Court Judgments 205 (S.C.) : 2005(1) Civil Court Cases 371 (S.C.)

Arms Act, 1959, Ss.3, 39 – Offence u/s 3 of the Act – Previous sanction of District Magistrate for prosecution is necessary. (Kamalsingh  Vs State of Maharashtra) 2005(1) Criminal Court Cases 676 (Bombay)

Arms Act, 1959, Ss.3 and 25 – Offence u/s 3 of the Act – Sentence of five years passed – Under section 25 maximum punishment of imprisonment may extend to three years – Sentence awarded by trial Court quashed and set aside. (Kamalsingh  Vs State of Maharashtra) 2005(1) Criminal Court Cases 676 (Bombay)

Arms Act, 1954, Ss.3, 25 and 30 – Firearms – Omission to obtain licence for possession – Use for committing murder – Recovery of firearm from accused – Offence under the Act is proved. (C.T.Ponnappa alias Chuppi Vs State) 2003(2) Criminal Court Cases 144 (Karnataka) 

Arms Act, 1954, Ss.3, 25 – Recovery of 5 live cartridges – Conviction u/s 3/25 Arms Act and sentenced to one year – Accused remained in jail for about two months – More than 15 years passed since date of incident – Sentence reduced to already undergone. (Jaspal Singh Vs State of Rajasthan) 2002(3) Criminal Court Cases 144 (Rajasthan) 

Arms Act, 1959, Ss.17 and 7(7) – Conviction by trial Court and acquittal by appellate Court – Restoration of arms licence – Be considered as if petitioner has not committed the offence. (Mangal Singh Vs The Additional Commissioner, Ferozepur Division) 2004(1) Criminal Court Cases 129 (P&H)

Arms Act, 1954, Ss.17 & 18 – Arms licence – Cancellation – On the basis that petitioner is involved in criminal case u/ss 307/323/504/506 IPC – Petitioner acquitted – No ground remaining for cancellation of licence. (Ram Murat Vs State of U.P.) 2002(2) Criminal Court Cases 568 (ALLAHABAD) 

Arms Act, 1954, S.25, Evidence Act, 1872, S.27 – Recovery of arms – Disclosure statement in presence of official witnesses and an independent witness – Independent witness if not produced, impinges upon the truth of prosecution case – Prosecution will have to satisfy the conscience of the court as to why the independent witness was not put forth to support the recovery. (Jarnail Singh Vs State of Punjab) 2002(1) Criminal Court Cases 218 (P&H)

Arms Act, 1959, S.25 – Recovery of country made pistol and cartridges – Independent witnesses not joined – Held, non joining of independent witnesses will not disprove the prosecution story – Police Officers are competent witnesses – Their statements regarding recovery of pistol and cartridges without any licence reliable even if examined with care and caution – Conviction upheld. (Sarabjit Singh Vs State of Punjab) 2004(4) Criminal Court Cases 724 (P&H)

Arms Act, 1954, S.25 – Recovery of gun and cartridges – Independent witness not associated at the time of recovery – Conviction set aside. (Nachhattar Singh Vs State of Punjab) 2003(1) Criminal Court Cases 338 (P&H) 

Arms Act, 1954, S.25 – Recovery of unauthorised country made pistol and cartridge from possession of accused – Delay in lodging FIR and subsequently sworn in affidavit of witnesses denying version in report – No ground to quash FIR. (Head Constable Nasir Ahmad Vs State of Haryana) 2003(2) Criminal Court Cases 646 (P&H) 

Arms Act, 1954, S.25(1)(b) – Acquittal – Appeal against – Acquittal based on correct appreciation of evidence – Reasons plausible and reasonable – Finding not liable to interference. (State of Rajasthan Vs Hari Chand) 2002(1) Criminal Court Cases 653 (Raj.)

Arms Act, 1954, S.25(a), Evidence Act, 1872, S.27 – Fire arm – Place of recovery already brought to knowledge of I.O. by informer – Statement recorded u/s 27 Evidence Act is inadmissible in law – Once the place of recovery is in the knowledge of the Investigator, then recording the statement u/s 27 of Evidence Act is a futile exercise – Investigator without recording the statement of accused can interrogate him and can effect the recovery. (Chanan Singh Vs The State of Punjab) 2003(3) Criminal Court Cases 29 (P&H) 

Arms Act, 1954, S.25(a), Punjab Police Rules, 1934, R.25.3 – Firm arm – Recovery from area over which police officer had no territorial jurisdiction – This is violation of R.25.3 of Police Rules – Conviction set aside. (Chanan Singh Vs The State of Punjab) 2003(3) Criminal Court Cases 29 (P&H) 

Arms Act, 1954, Ss.25 and 29 – Gun – Recovery from search of house of accused – No independent witness joined – There was no shutter to the house – Place of recovery was accessible to everybody – Accused acquitted. (State of Haryana Vs Bhartu) 2003(1) Criminal Court Cases 201 (P&H) 

Arms Act, 1954, S.27, Indian Penal Code, 1860, Ss.302 – Offence u/s 302 IPC & S.27 Arms Act – Conviction based on testimony of eye witnesses – No evidence or circumstance indicating FIR anti timed or anti dated – Non examination of another eye witness, in front of whose house deceased was playing chess, was for reason that he was won over – Prosecution cannot be compelled to examine such witness – Consistent evidence of three eye witnesses examined by prosecution – Conviction cannot be interfered with. (Tunai Sharma Vs State of Bihar) 2003(2) Criminal Court Cases 223 (Patna) 

Arms Act, 1954, S.29 – Licensed rifle and cartridges – Delivered to son – Rifle used for commission of murder – Accused is guilty of offence u/s 29 of Arms Act and conviction recorded by trial Court ordered to be maintained – As accused faced trial for long time as such sentence reduced to already undergone. (Hari Singh Vs State of Punjab) 2003(2) Criminal Court Cases 693 (P&H) 

Arms Act, 1954, S.39 – Recovery of country made revolver – Sanction order – Obtained from District Magistrate but not marked as an exhibit – Such sanction order cannot be taken into consideration – Conviction set aside. (S.Mange Naik Vs State of Andhra Pradesh) 2002(3) Criminal Court Cases 157 (A.P.) 

Army Act, 1950, S.46, Army Rules,1954, R.22 – Sepoy in Army – Accused forced drinks on an army recruit and then opened the buttons of his trouser – This is an offence for which accused convicted and sentenced to three months imprisonment and removal from service. (Ex. Sepoy Ranjit Singh Vs Union of India & Ors.) 2004(2) Criminal Court Cases 244 (P&H)

Arms Act, 1954, S.69, Narcotic Drugs and Psychotropic Substances Act, 1985, Ss.42, 41 & 50 – Opium – Recovery from house of an army man – Search and seizure conducted by Army Officers – Army Officers not authorised u/s 42 to conduct search – Non compliance of provisions of Ss.41 & 42 – Conviction by Court Martial set aside. (Union of India Vs L.D.Balam Singh) 2002(3) Criminal Court Cases 380 (S.C)

Army Act, 1950, S.101(1) – Arrest of a person working in armed forces – Such person shall be provided the causes of arrest in writing for effecting his arrest – If the concerned authorities fail to inform the causes in writing, it makes the arrest illegal. (Naik Ajai Kumar Roy Vs Union of India & Ors.) 2004(1) Criminal Court Cases 173 (A.P.)

Arrest – Malafide – Compensation – Petitioner a practising lawyer aged 76 years arrested by respondent No.3, a Police Officer in a case registered u/ss 420, 468 & 471 – Arrest found mala fide and mischievous and not protected by element of good faith – State to pay compensation of Rs.25,000/- which can be recovered from Respondent No.3 after due inquiry. (Dinkarrao Rajarampant Pole Vs State of Maharashtra & Ors.) 2004(1) Criminal Court Cases 627 (Bombay)

Attesting witness – If a person puts his signatures on the document for some other purpose i.e. to certify that he is a scribe or identifier or a registering officer, he is not to be treated as an attesting witness. (Jamuna Devi Vs Sarbati Devi (died) through L.R’s.) 2004(3) Civil Court Cases 40 (P&H)

Auction – Auctioneer reserving right to cancel auction without assigning any reason – Petitioners bid highest or that his demand drafts were retained for quite some time, does not create any right in petitioner’s favour. (Santosh Sharma  Vs State of Rajasthan) 2003(3) Civil Court Cases 322 (Rajasthan) 

Bankers Books Evidence Act, 1891, S.2(8) – Bank account statement – True copy – Cannot be treated as certified copy and cannot be acted upon unless it contains an endorsement made by responsible officer of Bank with seal and stamp of Bank as required under S.2(8) of the Act – Such an  endorsement  is  mandatory  and not directory – Somebody must speak to the contents in order to prove the accounts. (Indian Bank, Chittoor Vs V.R.Venkataraman & Ors.) 2004(2) Civil Court Cases 491 (A.P.)

Bankers Books Evidence Act, 1891, S.2(8) – Statement of account – Date of attestation – Omission – Detailed ingredients mentioned in S.2(8) are merely directory and not mandatory – Mere non mentioning of date in the attestation of statement of account is not fatal – When entries in statement of account are not disputed then plaintiff’s own statement on oath in support of entries is sufficient to fix the liability of defendant. (State Bank of India Vs M/s. H.Satish Hosiery Factory & Anr.) 2005(1) Civil Court Cases 738 (P&H)

Bankers Books Evidence Act, 1891, S.2(8) – Statement of accounts – Not containing the date – Held, date of attestation of the certificate is not an essential ingredient of the certificate – Provision is directory. (State Bank of India Vs. M/s.H.Satish Hosiery Factory, Modhopuri & Anr.) 2004(2) Civil Court Cases 553 (P&H)

Banking – Fixed deposit with ‘Either or Survivor clause’ –  Cannot be pledged by one account holder with the Bank or third party so that the amount becomes payable to such third party without consent of the joint account holder. (Anumati Vs Punjab National Bank) 2005(1) Apex Court Judgments 324 (S.C.) : 2005(1) Civil Court Cases 649 (S.C.)

Banking Regulation Act, 1949, S.5(c) – “Banking Company” – Expression – Not required to be given restrictive meaning. (The Shamrao Vithal Co-operative Bank Ltd. Vs M/s Star Glass Works) AIR 2003 Bombay 205

Banking Regulation Act, 1949, S.21-A – Agriculture loan – Interest – Bank cannot charge compound interest with quarterly rest – However, Bank can charge compound interest with annual rests of the loanee fails to pay the interest. (Punjab National Bank Vs Narain Dass) AIR 2003 H.P. 69

Banking Regulation Act, 1949, S.21-A – Penal interest – Agreement of hypothecation providing for penal interest in case of default – Default in payment of instalments – Bank is entitled to charge penal interest – However, in view of a judgment of Supreme Court reported in AIR 2001 SC 3095 Bank is not entitled to capitalization of penal interest. (Punjab National Bank Vs Narain Dass) AIR 2003 H.P. 69

Benami Transactions (Prohibition) Act, 1988, S.1 – Transaction earlier to enforcement of Act – Suit filed prior to invoking of Act – Held, provisions of Act not attracted. (Makhan Singh Vs XIth ADJ) AIR 2004 Allahabad 136

Benami Transactions (Prohibition) Act, 1988, Ss.2, 3 – Benami – Burden to prove – Lies on the person who alleges the transaction to be benami – The essence of a benami transaction is the intention of the party or parties concerned and often, such intention is shrouded in a thick veil which cannot be easily pierced through – Such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him, nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. (Valliammal (D) by Lrs. Vs Subramaniam & Ors.) 2005(1) Apex Court Judgments 533 (S.C.) : 2005(1) Civil Court Cases 490 (S.C.)

Benami Transactions (Prohibition) Act, 1988, Ss.2, 3 – Benami – Guiding factors : (1) the source from which the purchase money came; (2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, if any,  between the claimant and the alleged benamidar; (5) the custody of the title deeds after the sale; and (6) the conduct of the parties concerned in dealing with the property after the sale. (Valliammal (D) by Lrs. Vs Subramaniam & Ors.) 2005(1) Apex Court Judgments 533 (S.C.) : 2005(1) Civil Court Cases 490 (S.C.)

Benami Transactions (Prohibition) Act, 1988, Ss.2, 3 – Benami – Person purchasing property is presumed to be its owner – Presumption can be displaced by proving that the document was taken benami in the name of another person for some reason and the person whose name appears in the document is not the real owner but only a benami – Heavy burden lies on the person who pleads that the recorded owner is a benami holder. (Valliammal (D) by Lrs. Vs Subramaniam & Ors.) 2005(1) Apex Court Judgments 533 (S.C.) : 2005(1) Civil Court Cases 490 (S.C.)

Benami Transactions (Prohibition) Act, 1988, Ss.2, 3 – Benami – Source from where the purchase money came and the motive why the property was purchased benami are  by far the most important tests for determining whether the sale standing in the name of one person, is in reality for the benefit of another. (Valliammal (D) by Lrs. Vs Subramaniam & Ors.) 2005(1) Apex Court Judgments 533 (S.C.) : 2005(1) Civil Court Cases 490 (S.C.)

Benami Transactions (Prohibition) Act, 1988, Ss.2(a), 3 – Plaintiff’s plea that they also contributed for purchase money through property was purchased in the name of defendant – Defendant’s specific stand that entire purchase money was paid by him alone – He would be estopped from contending that transaction was hit by the Act – Nobody’s case that property was purchased in name of defendant to evade public revenue or avoid payment of any tax – Transaction not hit by provisions of Act. (Smt.M.Printer Vs Marcel Martins) AIR 2002 Karnataka 191

Benami Transactions (Prohibition) Act, 1988, S.3, Civil Procedure Code, 1908, O.20.R.18 – Suit for partition – Claim by defendant, Govt. servant that he purchased suit property benami in the name of his brother as purchase was made to get over relevant service regulations prohibiting Govt. servant to purchase property without prior permission – Defendant having properties in his name at various places disproving his plea of benami transaction – Entire sale consideration found to have been paid by defendant’s brother and not by defendant – Held, Court not to accept such benami transaction which is in violation of Service Rules. (M.Krishna Rao & Anr. Vs M.L.Narasikha Rao & Ors.) 2004(2) Civil Court Cases 265 (A.P.)

Benami Transactions (Prohibition) Act, 1988, S.3(2) – Benami – Burden of proof – Rests on the person asserting it to be so – Nature of possession of the property after purchase, the motive, if any, for giving the transaction a benami colour, position of the parties and their relationships, custody of the title deeds after the sale and the conduct of the parties concerned in dealing with the property after sale are also important factors in determining the nature of transaction apart from the origin of money. (Suseelan Vs Leela) 2004(3) Civil Court Cases 77 (Kerala)

Benami Transactions (Prohibition) Act, 1988, Ss.3 & 4 – Benami – Plea is not available either for defence or for filing a suit – It is only the person shown to have purchased property to be the lawful owner. (Parveen Kumar & Anr. Vs State of Punjab) 2004(2) Civil Court Cases 286 (P&H)

Benami Transactions (Prohibition) Act, 1988, S.4 – Property in question purchased in name of minor adopted son – He becomes coparcener of the undivided family due to adoption – Prohibition not applicable in such case as it is covered by exception to prohibition engrafted in S.4 of the Act. (Pradeep Kumar Vs Mahaveer Pershad) AIR 2003 A.P. 107

Benami Transactions (Prohibition) Act, 1988, S.4(3) – Benami transaction – Burden of proof – Plea of benami can be considered if the person in whose name the property is held is a coparcener in Hindu Undivided Family and if the property is held for the benefit of coparcener – Plea raised that property is purchased benami in the name of adopted son – Adopted son can be held to be a coparcener of undivided family – Prohibition contained in sub-section (1) and (2) of S.4 will not apply to the case – Sub-section (3) of S.4 is an exception to the said prohibition – Further Act is prospective in operation – Suit sale transaction was prior to coming into force of Act – Burden lies on party raised the said plea to prove it. (Pradeep Kumar Vs Mahaveer Pershad) 2003(2) Civil Court Cases 586 (A.P.) 

Bombay, Rents, Hotel and Lodging House Rates Control Act, 1947, S.29(2) – Finding of fact – Revision – In revision High Court has no jurisdiction to re-appreciate the evidence and give its own findings substituting the concurrent findings recorded by Courts below – However when the findings are perverse and no prudent person can believe that the findings are true on the basis of evidence and material on record, and if substantial injustice is likely to be caused to the party concerned by drawing wrong inferences without having legal sanctity and recording wrong and perverse findings, then High Court would have jurisdiction to reappreciate evidence for arriving at a correct finding. (Popatlal Vadilal Bhansali Vs Kasturbhai Ranchhodbhai Soni) 2004(2) Civil Court Cases 398(Gujarat)

Bombay High Court (Original Side) Rules and Civil Procedure Code, 1908 (As amended), O.8.R.1 – Original jurisdiction – Procedure – Governed by Original side rules and provisions of CPC do not apply – Original side rules are not repealed by amended CPC. (Iridium India Telecom Ltd., Bombay Vs Motorola Inc. & Anr.) 2004(2) Civil Court Cases 443 (Bombay)

Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947, S.12(3)(a) – Tenant made only part payment of total amount demanded by landlord in notice of termination of tenancy – Held, ground for eviction is clearly made out. (Harishchandra Dhondusheth Khude Vs Shri Vithoba Rakhumai Devsthan Public Trust, Dehu) 2004(3) Civil Court Cases 118 (Bombay)

Cancellation of decree – Earlier suit proceeded ex parte against petitioner due to his non appearance – Suit is not maintainable in the absence of allegations of fraud or misrepresentation – Plaintiff failing to establish that suit was decided without issuing notice to him – Held, suit is not maintainable. (Kamta Prasad Vs District Judge, Azamgarh) 2003(1) Civil Court Cases 272 (Allahabad) 

Capital of Punjab (Development and Regulation) Act, 1952, Ss.3, 22, Rules under R.90(3) – Auction of plot – Entire sale money paid – Application of bidder before any formal deed of transfer effected by Estate Officer, requesting that plot be transferred to his son without any further payment as he had already made payment – Formal deed of transfer effected in favour of son – No illegality. (Rakesh Kumar Duggal Vs Baldev Kumar Duggal) AIR 2002 P&H 123

Capital of Punjab (Development and Regulation) Act, 1952, S.8 (as amended in 1973), Chandigarh Leasehold of Sites and Buildings Rules, 1973, R.13 – Commercial site – Allotment on leasehold basis – Delay of more than six months in deposit of ground rent – Imposition of maximum penalty at rate of 100% of amount due that too without assigning reasons and without hearing explanation to show cause notice submitted by allottee – Is arbitrary – Penalty of 20% held, would be sufficient to meet ends of justice. (Vijay Soni Vs Chief Commissioner, U.T.) AIR 2002 P&H 38

Capital of Punjab (Development and Regulation) Act, 1952, S.11-D – Resumption of site for infringement of conditions of sale on ground of misuser – Writ petition for quashing order of resumption dismissed by High Court holding that if appellant moved an application u/s 11-D of Rules, 1960, the same shall be decided by authority – Estate Officer allowed application moved by appellant subject to payment of amount as per Rule – Appellate authority reaffirmed the view of Estate Officer – Writ petition dismissed by High Court – Appeal – It would not be legal and proper to reopen the issue of resumption which had become final long back – Contention that misuser pertained only to part of premises and if any proportional relief could be granted to appellant to be considered by Estate Officer – Misuser of premises came to end in 1991 – Estate Officer to treat application under rule 11-D having been filed in 1992 and assess value on that basis. (Jyotsna Kohli Vs Union Territory of Chandigarh & Ors.) 2005(1) Apex Court Judgments 148 (S.C.) : 2005(1) Civil Court Cases 264 (S.C.)

Carriers Act, 1865, S.5 – Carrier – Liability – Claim for loss of goods and damages – Failure of consignee to bring to notice of common carrier at time of contract, about special consequences of breach or damages claimant likely to suffer – Damages cannot be granted to plaintiff. (M/s Janatha Tourist Corporation Vs Indo U.S.Wire Casting Ltd.) AIR 2002 Karnataka 65

Carriers Act, 1865, S.5 – Loss of goods – Valuation – Value as on date of consignment should be a determining factor for considering loss of value of goods. (M/s Janatha Tourist Corporation Vs Indo U.S.Wire Casting Ltd.) AIR 2002 Karnataka 65

Carriers Act, 1865, S.8 – Damage to goods – Negligence – Accident due to bursting of tyre of vehicle – Negligence on part of driver cannot be inferred – It cannot also be said that carrier did not take proper care in maintaining tyre of vehicle – Claim for loss on account of  damage  to goods, not maintainable. (State of Rajasthan Vs Mehta Transport Company) AIR 2002 Rajasthan 157

Cause of action – Consists of bundle of facts, which give cause to enforce the legal inquiry for redress in a Court of law – It must include some act done as in the absence of such an act no cause of action would possibly accrue or would arise. (Criminal Procedure Code, 1973, S.177). (Y.Abraham Ajith & Ors. Vs Inspector of Police, Chennai & Anr.) 2004(2) Apex Court Judgments 547 (S.C.) : 2004(4) Criminal Court Cases 466 (S.C.)

Cause of action – Means every fact which it would be necessary to prove, if traversed, in order to support his right or grievance to the judgment of the Court – Every fact which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove such fact, comprises in “cause of action”. (Criminal Procedure Code, 1973, S.177). (Y.Abraham Ajith & Ors. Vs Inspector of Police, Chennai & Anr.) 2004(2) Apex Court Judgments 547 (S.C.) : 2004(4) Criminal Court Cases 466 (S.C.)

Cause of action – Not stranger to criminal cases. (Criminal Procedure Code, 1973, S.177). (Y.Abraham Ajith & Ors. Vs Inspector of Police, Chennai & Anr.) 2004(2) Apex Court Judgments 547 (S.C.) : 2004(4) Criminal Court Cases 466 (S.C.)

Central Excise Act, 1944, Ss.9(1)(b) and 9-AA (As amended by Act 79 of 1985 w.e.f. 27.12.1985), Constitution of India, Art.20(1), Criminal Procedure Code, 1973, Ss.200, 482 – Company – Complaint against Chairman, Vice-President, Branch Manager – Provision introduced w.e.f. 27.12.1985 to hold Chairman, Vice-President, Branch Managers of Company vicariously liable for offence committed by company is not mere procedural or adjectival law, but substantial law – Provision creates offence for first time – It does not operate retrospectively – Its applicability to acts done prior to its coming into force is violative of Art.20(1) Constitution of India. (Ajit Narain Haksar Vs Assistant Commissioner of Central Excise) 2003(1) Criminal Court Cases 139 (Karnataka) 

Chandigarh Leasehold of Sites and Buildings Rules, 1973, Rule  12(3) – Instalments – Delayed payment – Interest – Payable 24% – It does not call for any interference – Appellant must deposit the difference in interest within six weeks. (S.M.S.Sandhu Vs Chandigarh Administration & Ors.) 2003(1) Apex Court Judgments 250 (S.C.)

Child – Custody – In case of dispute between father and mother regarding custody of child, the paramount consideration is welfare of the child and not the legal right of either of the parties. (Rajesh K.Gupta Vs Ram Gopal Agarwala and Ors.) 2005(1) Apex Court Judgments 602 (S.C.) : 2005(2) Criminal Court Cases 788 (S.C.)

Child Labour (Prohibition and Regulation) Act, 1986, Ss.2(ii) & 14(1) – Child employment – ‘Child’ means a person who has not completed 14 years of age – Prosecution failed to prove age of child – Burden to prove negative fact cannot be shifted on accused – Conviction and sentence set aside. (Ram Chander (In Jail) Vs State of U.P.) 2002(1) Criminal Court Cases 661 (All.)

Child Marriage Restraint Act, 1929, S.10, Criminal Procedure Code, 1973, S.202 – Child marriage – Accused summoned on the basis of complaint and sworn statement of complainant – Enquiry as envisaged u/s 202 Cr.P.C. not conducted – Held, in the absence of proper enquiry, issuance of summons is not legal – Magistrate to conduct afresh statutory enquiry and on being satisfied as to the justification of process, to proceed against the accused persons. (Muzaffar Ali Sajjad Vs State of A.P.) 2004(3) Criminal Court Cases 764 (S.C.)

Child Marriage Restraint Act, 1929, S.10 – Child marriage – Allegation in complaint as to accused witnesses to the marriage agreement – No allegation as to performing or conducting or directing or actively participating in child marriage – Proceedings quashed. (Muzaffar Ali Sajjad Vs State of A.P.) 2004(3) Criminal Court Cases 764 (S.C.)

Child witness – 10 years old at the time of incident and 12 years of age at the time of recording his deposition – Trial Court should maintain a record regarding preliminary questions put to the child witness in order to determine the competency of the witness – Non maintenance of such record is not of much consequence since not only the trial Court was satisfied about the competency of the witness, but the evidence of the witness itself shows that child witness was a competent witness. (Nandeshwar Vs State of Maharashtra) 2002(1) Criminal Court Cases 441 (Bom.)

Child witness – Father murdered wife in order to marry another woman – Occurrence witnessed by son aged 10 years – Child witness deposed that on fateful evening accused twisted neck of deceased, caused injuries to her by beating which resulted in her death and deceased was clandestinely buried at night in forest and next day morning accused took him and left their village – Version of child witness supported by medical evidence – Trial Court being satisfied with the competency of the witness convicted the accused – Conviction upheld. (Nandeshwar Vs State of Maharashtra) 2002(1) Criminal Court Cases 441 (Bom.)

Child witness – Only witness speaking about the incident – Held, extreme care and caution is required in scrutinising his testimony. (Tarachand Vs State of Rajasthan) 2002(1) Criminal Court Cases 327 (Raj.)

Cinematograph Act, 1952, S.7, Indian Penal Code, 1860, S.294 – Screening obscene films – Offence u/s 294 IPC and S.7 of Cinematograph Act – Seizing and sealing theatre – Sealing and seizing the theatre is not authorised in law – At the stage of investigation Police do not have any power to seize the cinema theatre or projector – Writ petition allowed. (P.Kullaiah Swamy Vs Sub-Inspector of Police, Jammalamadugu Urban Police Station, Cuddapah) 2003(2) Criminal Court Cases 613 (A.P.) 

Circumstantial evidence – If chain of circumstantial evidence is complete then absence of proof of motive is inconsequential – However, if motive, as a circumstance is relied by the prosecution for forging the chain of circumstantial evidence, then the prosecution is burdened with the responsibility of proving the same. (Arun Dharma Chavhan Vs State of Maharashtra) 2002(1) Criminal Court Cases 162 (Bom.)

Civil & Criminal case – Civil suit pending regarding validity of agreement – Civil Court to decide the question of forgery – Civil Court if decides that agreement is not a forgery then criminal proceedings would be deemed to have been quashed and if civil Court decides that agreement is forgery then criminal proceedings would continue. (Prem Singh Vs State of Haryana) 2002(3) Criminal Court Cases 28 (P&H) 

Civil & Criminal case – Sale deed got executed through some fictitious persons – Civil suit pending for cancellation of sale deed – Criminal proceedings cannot be quashed merely on the ground that the same document is under scrutiny by it in civil proceedings initiated by the same complainant – Nature and standard of proof in civil and criminal proceedings is different. (Jhinkoo & Ors. Vs State of U.P.) 2002(3) Criminal Court Cases 152 (Allahabad) 

Civil dispute – Matter pending before Arbitrator as per arbitration clause in the agreement – FIR registered for embezzlement and misappropriation of paddy entrusted for shelling cannot be quashed – Both civil and criminal remedies could be pursued in diverse situations. (Manjit Singh Vs State of Punjab) 2002(2) Criminal Court Cases 1 (P&H)

Civil proceedings – Pendency of civil proceedings over same matter – Not a ground to quash or stay criminal proceedings – Both civil and criminal case ordered to be tried by same Judicial Officer separately but simultaneously and dispose them of at the same time by separate order/judgment. (Devinder Pal Singh Vs Sardara Singh) 2002(2) Criminal Court Cases 531 (P&H)

Civil suit – In civil dispute the conduct of parties is material. (Janki Vashdeo Bhojwani & Anr. Vs Indusind Bank Ltd. & Ors.) 2005(2) Civil Court Cases 324 (S.C.)

Civil Suit – Interlocutory orders – Do not survive after the original proceeding comes to an end. (Shipping Corporation of India Ltd. Vs Machado Brothers & Ors.) 2004(1) Apex Court Judgments 574 (S.C.) : 2004(2) Civil Court Cases 533 (S.C.)

Clean hands – A party not coming to Court with clean hands is not entitled to be heard on merits. (Ashwani Kumar Vs State of Punjab) 2002(3) Criminal Court Cases 222 (P&H) 

Clean hands – Two petitioners filed earlier seeking similar relief – Fact not disclosed in third petition – Amounts to abuse of process of law – Petition liable to be dismissed at threshold. (M/s Singh & Ors. Vs State of U.P.) AIR 2003 Allahabad 375

Compromise decree – Registration – There was no family settlement between the parties and the decree itself had created the rights for the first time – Held, decree requires registration. (Rajinder Singh Vs Joginder Singh) AIR 2002 P&H 287

Collusive decree – Challenged being null and void – Property not ancestral in the hands of person who suffered the decree – Decree not challenged by him during his life time – Held, when person who suffered the decree did not challenge the decree being obtained by fraud then this ground is not available to the plaintiff after his death. (Hari Singh Vs Gurcharan Singh) 2003(3) Civil Court Cases 183 (P&H) 

Collusive decree – Execution – No one can claim execution of such like decrees. (Avinash Chander & Anr. Vs Hazura Singh) 2003(1) Civil Court Cases 439 (P&H)  

Companies Act, 1956, S.614-A – Filing of defective balance sheet before Registrar of Companies – Registrar filing criminal complaint u/s 614-A – Held, in case the documents submitted by the Company were not in proper form or were not accompanied by the audit report, then it is incumbent upon the Registrar of Companies to point out the defect to the Company itself instead of resorting to coercive method of filing a complaint – – Complaint quashed being against natural justice – It is abuse of process of Court. (M/s Sidhartha Polyster Pvt.Ltd., Vs Registrar of Companies) 2003(1) Criminal Court Cases 346 (P&H) 

Compensation – Death in judicial custody – Cause of death not sufficiently proved by Jail Authorities – Adverse inference must be drawn – Compensation of Rs.50,000/- awarded. (Bhadu Devi (Bouri) Vs State of Bihar) 2003(2) Criminal Court Cases 527 (Jharkhand) 

Compromise decree – Execution – Once compromise is reduced to writing and in accordance with that compromise all acts have been done then application for execution is not maintainable. (Avinash Chander & Anr. Vs Hazura Singh) 2003(1) Civil Court Cases 439 (P&H)  

Compromise decree – Suit challenging it on ground that it was obtained by misrepresentation and fraud – Held, suit is maintainable. (Civil Procedure Code, 1908, O.23.R.3-A). (Ram Kishan & Ors. Vs Sardari Devi) 2003(1) Civil Court Cases 11 (P&H) 

Concealment of facts – Amounts to abuse of process of Court – Such a party to be dealt with heavy costs – In the instant case petition dismissed with special costs of Rs.20,000/-. (SATYA – Support for Asian Trust and Youth Amity (Regd.) & Anr. Vs State of Haryana & Ors.) 2004(3) Civil Court Cases 160 (P&H)

Concealment of facts – Earlier writ petition dismissed as withdrawn – This fact not disclosed in second writ petition – No new cause of action arose to file the second writ petition – Petitioners are clearly guilty of “suppressio veri” and “suggestio false” – Held, petitioners are not entitled to be heard on merits. (M/s Inderjit Poultry Farm Vs The State Bank of Patiala) 2003(1) Civil Court Cases 591 (P&H) 

Concealment of facts – Intentionally suppressing material facts – Costs of Rs.5,000/- imposed. (Baldev Singh Vs Sewa Singh & Anr.) 2004(2) Civil Court Cases 422 (P&H)

Consent decree – Family settlement – Parties not related to each other in any manner – There is no question of family settlement – Decree suffered does not confer any title without its being registered in accordance with law. (Registration Act, 1908, S.17). (Mahi Pal Singh Vs Lal Singh) 2004(2) Civil Court Cases 249 (P&H)

Consent decree – Family settlement – Sons of sister – Not family members – There can be no family settlement with them – Rights in their favour are created for the first time by the decree – Such decree requires compulsory registration – Decree for want of registration is of no effect. (Registration Act, 1908, S.17). (Brij Lal & Anr. Vs Smt.Pari Devi & Ors.) 2004(2) Civil Court Cases 202 (P&H)

Consent decree – In the suit in which consent decree was passed it was admitted that the suit land is Joint Hindu Family Property – In subsequent suit defendant cannot be allowed to resile from his earlier admission that the land in question is the Joint Hindu Family Property. (Evidence Act, 1872, Ss.17 to 21 and S.115). (Dasa Singh Vs Jasmer Singh) 2003(2) Civil Court Cases 372 (P&H) 

Consent decree – Joint Hindu Family Property – Part of such land cannot be transferred by a consent decree. (Dasa Singh Vs Jasmer Singh) 2003(2) Civil Court Cases 372 (P&H) 

Consent decree – Passed on basis of oral family settlement which had already taken place before the filing of the suit – Decree does not require registration. (Mukanda Vs Kura Ram) 2003(2) Civil Court Cases 301 (P&H) 

Consent decree – Passed on the basis of admitted written statement – Merely for this reason it cannot be said that such kind of decree is not binding – Consent decree is as valid as the contested decree – Consent decree can be avoided only on the ground that it was result of fraud and undue influence or otherwise on the ground of non registration. (Krishani Devi & Ors. Vs Shamsher Singh & Ors.) 2004(2) Civil Court Cases 611 (P&H)

Consent decree – Passed on the next day of filing of suit – However, decree was passed on the basis of written statement filed by defendant admitting the claim of plaintiff and defendant also appeared in Court and admitted the claim of the plaintiff – Decree cannot be said to be illegal or suffering from fraud merely for the reason that summons were not issued. (Jai Lal Vs Chhattar Singh & Ors.) 2005(1) Civil Court Cases 779 (P&H)

Consent decree – Plaintiff and defendant strangers – No family settlement proved – No pre-existing right – Right created by decree for first time – Decree not registered as immovable property of more than Rs.100/- – Finding of lower Courts that decree has no legal force & not binding – Upheld. 1996(1) Civil Court Cases 210 (S.C.) : 1996(1) Apex Court Journal 71 (S.C.) followed. (Mohinder Singh Vs Gurbax Singh) 2005(2) Civil Court Cases 07 (P&H)

Consent decree – Plea that in the family arrangement, suit property had been given to plaintiff about one year prior to the filing of suit – Such plea admitted by father/defendant by filing admission written statement – Decree passed on the basis of allegations made in plaint and admission written statement – Held, such decree does not require registration. (Registration Act, 1908, S.17(2). (Ved Pal Alias Vedu Vs Smt.Raj Rani) 2003(1) Civil Court Cases 655 (P&H) 

Consent decree – Pre-existing right recognised by decree – Decree does not require registration. (Registration Act, 1908, S.17(iv). (Gurdev Vs Jagtar Singh) 2003(1) Civil Court Cases 53 (P&H) 

Consent decree – Registration – Decree by mother in favour of son – Son is a member of the family – Rights cannot be said to be created for the first time – Decree does not require registration. (Jai Lal Vs Chhattar Singh & Ors.) 2005(1) Civil Court Cases 779 (P&H)

Consent decree – Setting aside – Compromise was fraudulent and not signed by all parties to the suit – Compromise decree liable to be quashed. (Kantaben T.Shah Vs Devendrakumar C.Shah) AIR 2002 Gujarat 160

Consent decree – Setting aside – Fraud and misrepresentation – Some papers got signed in the garb of selling the tractor – Suit for declaration that decree is null and void – Plaintiff was 80 years, illiterate and was having only one eye with very weak eye sight – Agreement to sell a tractor, of the same day, proved – Principle of non est factor applies in the case of an old illiterate person of weak eye sight and mental capacity – Defendant miserably failing to substantiate any of the valid defences or his bona fides – Decree set aside. (Specific Relief Act, 1963, Ss.34, 37). (Channo Devi & Ors. Vs Ami Lal) 2004(2) Civil Court Cases 101 (P&H)

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, S.3 – “Central Government” means the President and a representation addressed to the President must be considered to be a representation properly addressed to the Central Government. (H.Fathima Vs State of Government of Tamil Nadu) 2002(1) Criminal Court Cases 134  (Madras)

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, S.3 – Constitution of India, Article 22(5) – Preventive detention – Representation against detention sent to President of India – Office of President failing to forward complaint to authorities – Vitiates detention order. (H.Fathima Vs State of Government of Tamil Nadu) 2002(1) Criminal Court Cases 134  (Madras)

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, S.3 – Detention order – Based on solitary incident – Detention order cannot be quashed merely for this reason as it is a question of satisfaction of detaining authority on face of material placed before it. (Syed Niza Vs State of Tamil Nadu) 2003(2) Criminal Court Cases 435 (Madras) 

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, S.3 – Detention order – Cannot be challenged before the order of detention  being served on the accused. (Union of India & Ors. Vs Vidya Bagaria) 2004(3) Criminal Court Cases 225 (S.C.)

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, S.3 – Prevention detention – Representation of detenu – Document annexed in support written in Urdu language – No material to show that it was not translated in English or whether the authority concerned had not perused the contents of the document – No material to show that the detenu had sought the help of the authorities to get the document in question translated into English – Said document can be considered while disposing of representation. (Gurdev Singh Vs Union of India) AIR 2002 S.C. 10

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, S.3 – Preventive detention – Challenged on ground that satisfaction of detaining authority was based on misreading of statements and evidence – Detenu arrived from Singapore and attempted to pass through green channel – His baggage was found containing imported electronic goods worth Rs.6,80,500/- – There was no misreading of statement leading to non-application of mind and detaining authority had not misread evidence – Detention order suffered no illegality. (Syed Niza Vs State of Tamil Nadu) 2003(2) Criminal Court Cases 435 (Madras) 

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, S.3 – Preventive detention – Subjective satisfaction of detaining authority – No set parameters – Facts in the ground of detention show that detaining authority has not only taken note of the allegations made against the detenu; that materials collected by the investigating agency of the department against him but has also taken note of the reply given by the detenue at different stages denying the allegations and levelling counter allegations against the officer of the department to implicate him – Subjective satisfaction arrived at is based on relevant materials – Detention not vitiated due to non application of mind. (Gurdev Singh Vs Union of India) AIR 2002 S.C. 10

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, S.3(1), Constitution of India, 1950, Article 22 (5) – Representation – Undated, unsigned representation – Representation received on 11.12.03 rejected on 17.12.03 and detention was confirmed 20.12.03 – Undated and unsigned representation cannot be treated as a representation within meaning of Article 22 (5) requiring immediate attention of authorities concerned – Representation rightly rejected on this ground alone. (Kirti Kumar Nirula  Vs State of Maharashtra & Ors.) 2005(1) Criminal Court Cases 281 (S.C.)

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, S.3(1), Constitution of India, Articles 22 & 226 – Order of detention – Writ of habeas corpus is maintainable even by a person who is agitating against his detention without going to jail because if he goes to jail and challenges his order of detention and when it transpires that his detention was unlawful, it would be impossible for the State to restore him the precious days of liberty which he had to spend in jail because of unlawful order of detention. (Virender Mohan Jain Vs Union of India) 2002(3) Criminal Court Cases 14 (P&H)  

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, S.3(1) – Detention order – At the time of interception of the detenu at the Airport, he was trying to smuggle 15000 US Dollars  out of India –  This act on the part of detenu is clearly one which affects the conservation of foreign exchange of the country – The detaining authority has rightly arrived at the conclusion that it was necessary to pass an order of detention against the detenu to prevent him from acting in a  manner prejudicial to the “conservation” of foreign exchange. (Mohan Chhaturmal Daryani Vs State of Maharashtra & Ors.) 2004(3) Criminal Court Cases 633 (Bombay)

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, S.3(1) – Detention order – Passport of detenu was in custody of custom authority – Cannot be said that detenu could not travel to foreign country in future to indulge in alleged prejudicial activities. (Mohan Chhaturmal Daryani Vs State of Maharashtra & Ors.) 2004(3) Criminal Court Cases 633 (Bombay)

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, S.3(1) – Detention order – Seizure of bags containing Indian currency notes from the detenu at the airport – Detenu, a lady, accompanied her husband on tour to Dubai from Mumbai – Even on two previous occasions the detenu lady had been to Dubai in the company of her husband, who is also under detention and she had never gone to Dubai all alone or with any other person in the past – Detenu was not aware of the contents of the bags – Detaining authority had not taken into consideration these facts – There was no compelling necessity for the detaining authority to exercise power under section 3(1) – Detention order is therefore liable to be quashed. (Firoz Mohomedali Mamdani Vs State of Maharashtra & Ors.) 2004(3) Criminal Court Cases 303 (Bombay)

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, S.3(1) – Detention – Order can be set aside if; (i) the impugned order is not passed under the Act under which it is purported to have been passed; (ii) that is sought to be executed against a wrong person; (iii) that is passed for a wrong purpose; (iv) that it is passed on vague, extraneous and irrelevant grounds; (v) that the authority which passed it had not authority to do so. (Virender Mohan Jain Vs Union of India) 2002(3) Criminal Court Cases 14 (P&H)  

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, S.3(1) – Petitioner involved in “smuggling activities” and acted through a number of companies in smuggling activities – Order validly passed on such activities. (Virender Mohan Jain Vs Union of India) 2002(3) Criminal Court Cases 14 (P&H)  

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, S.3(1) – Preventive detention – Based on single incidence of smuggling – Accused apprehended with 70,000 US Dollars – He has taken 16 similar flights during short period of time – Material placed before detaining authorities sufficient to form reasonable conclusion that detenu is likely to indulge in similar activities in future – Order of detenu based on single incidence upheld. (Kirti Kumar Nirula  Vs State of Maharashtra & Ors.) 2005(1) Criminal Court Cases 281 (S.C.)

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, S.3(1) – Preventive Detention – Co-detenu released – No ground to release the appellant. (Kirti Kumar Nirula  Vs State of Maharashtra & Ors.) 2005(1) Criminal Court Cases 281 (S.C.)

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, S.3(1) – Preventive detention – Delay – Single incident of violation of COFEPOSA involving crores of rupees – Order of preventive detention passed after 11 months of incident – Delay occurred partly due to filing of writ petitions by detenu – Order of detention could not be set aside on the ground of delay. (Union of India Vs Shrimati Chaya Ghoshal) 2005(1) Criminal Court Cases 424 (S.C.)

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, S.3(1) – Preventive Detention – Detenu can make representation before the detaining authority and the Central Government besides the Advisory Board – Board and the authorities are obliged to pass an effective order thereupon – Apart from it Central Government has suo motu power to examine validity. (A.C.Razia Vs Government of Kerala & Ors.) 2004(2) Criminal Court Cases 549 (S.C.)

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, S.3(1) – Preventive detention – Incident taking place on 18.7.2000 and detention order passed on 16.2.2001 – Delay – Detention/detention order not vitiated as detaining authority satisfied about high propensity and potentiality of petitioner Superintendent of Customs and Central Excise to indulge in prejudicial activity in future. (Mukesh Kumar Gupta & Anr. Vs Union of India & Ors.) 2002(2) Criminal Court Cases 267 (Allahabd)  

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, S.3(1) – Preventive detention – It is an anticipatory measure and does not relate to an offence, while the criminal proceedings are to punish a person for an offence committed by him – They are not parallel proceedings – The object of the law of preventive detention is not punitive but only preventive. (Union of India Vs Shrimati Chaya Ghoshal) 2005(1) Criminal Court Cases 424 (S.C.)

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, S.3(1) – Preventive detention – Object – Not punitive but only preventive – It is resorted to when the Executive is convinced that such detention is necessary in order to prevent the person detained from acting in a manner prejudicial to certain objects which are specified by the concerned law – It is not practicable to lay down objective rules of conduct in an exhaustive manner – Satisfaction of detaining authority is considered to be of primary importance – Laws that provide for preventive detention posit an individual’s conduct prejudicial to the maintenance of public order or to the security of State or corroding financial base provides grounds for satisfaction for a reasonable prognostication of possible future manifestations of similar propensities on the part of the offender. (Union of India Vs Amrit Lal Manchanda & Anr.) 2004(2) Criminal Court Cases 146 (S.C.)

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, S.3(1) – Preventive detention – On a number of grounds – One of the grounds found to be based on irrelevant materials not germane for passing the order of detention – Entire order of detention stands vitiated in law. (Madhu Garg Vs Union of India & Anr.) 2005(1) Criminal Court Cases 288 (S.C.)

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, S.3(1) – Preventive detention – Only one incident of violation of COFEPOSA – Order of preventive detention passed on the basis of one incident not invalid – It is not number of acts which determine the question as to whether detention is warranted. (Union of India Vs Shrimati Chaya Ghoshal) 2005(1) Criminal Court Cases 424 (S.C.)

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, S.3(1) – Preventive detention – Order challenged at pre-execution stage – Stay by High Court – Matter disposed of by High Court after 5 months – Order cannot be quashed on ground that it became stale. (Union of India Vs Amrit Lal Manchanda & Anr.) 2004(2) Criminal Court Cases 146 (S.C.)

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, S.3(1) – Preventive detention – Order of detention stalled by detenu by obtaining stay order of Court – Order of detention does not become infructuous if the period for which detention was ordered is over. (Union of India Vs Amrit Lal Manchanda & Anr.) 2004(2) Criminal Court Cases 146 (S.C.)

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, S.3(1) – Preventive detention – Order served on petitioner when he was in custody though on bail in main case surrendered a few days before service of detention order – Detention order not showing awareness of fact that detenu was in custody and satisfaction of detaining authority that there were compelling reasons to execute the order of detention – Order stood vitiated – Detenu with intention to take benefit of law had surrendered though he was on bail & thus arranged a trap so as to vitiate the order – Either executing agency or sponsoring agency appears to be in connivance with detenu or were negligent in discharge of their duties – Their apologies accepted and officials warned. (Nafis Ahmed Ansari Vs The State of Maharashtra) 2003(3) Criminal Court Cases 621 (Bombay) 

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, S.3(1) – Preventive detention – Representation of detenu addressed to Secretary – It can be considered by Joint Secretary i.e. detaining authority. (Mukesh Kumar Gupta & Anr. Vs Union of India & Ors.) 2002(2) Criminal Court Cases 267 (Allahabd)  

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, S.3(1) – Preventive detention – Representation – Delay in disposal – No inflexible rule that delay in considering representation ipso facto sufficient to render continued detention void – Representation received on 13th and decided on 30th – Ground of delay not taken in writ petition – No opportunity to explain delay – Hence, contention that there is unexplained delay rendering continued detention illegal, cannot be countenanced. (Mukesh Kumar Gupta Vs Union of India)2002(2) Criminal Court Cases 267 (Allahabd)  

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, S.3(1) – Preventive detention – Requisite satisfaction arrived at by detaining authority on consideration of all relevant material placed before him – Period during which petitioner was out of detention/free due to erroneous order of High Court set aside by Supreme Court is not to be set off from maximum period of detention – Continuance of detention upto maximum period of detention not vitiated. (Mukesh Kumar Gupta & Anr. Vs Union of India & Ors.) 2002(2) Criminal Court Cases 267 (Allahabd)  

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, S.3(1)(i) – Preventive detention – Authority to whom it is made should deal with the same with utmost expedition. (Union of India Vs Paul Manickam & Anr.) 2004(1) Criminal Court Cases 260 (S.C.)

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, S.3(1)(i) – Preventive detention – Detenu informed that he can make representation to Union and State Govt. – Detenu addressing the representation to President of India, which caused some delay in reaching the representation to concerned authority – Representation to President is valid – However in the instant case it was dubious device of detenu to delay the consideration of representation and get relief – No relief could be given. (Union of India Vs Paul Manickam & Anr.) 2004(1) Criminal Court Cases 260 (S.C.)

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, S.3(1)(i) – Preventive detention – Order be challenged before High Court first – If Supreme Court is approached directly then it has to be shown as to why the High Court has not been approached, could not be approached or it is futile to approach the High Court – Unless satisfactory reasons are indicated in this regard, filing of petition on such matters directly under Article 32 of the Constitution is to be discouraged. (Union of India Vs Paul Manickam & Anr.) 2004(1) Criminal Court Cases 260 (S.C.)

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, S.3(1)(i) – Preventive detention – Person in custody – Detention order can be passed if (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he had reason to believe on the basis of reliable material placed before him : (a) that there is a real possibility of his release on bail, and (b) that on being released, he would in all probability indulge in prejudicial activities, and (3) if it is felt essential to detain him to prevent him from so doing – If an order is passed after recording satisfaction in that regard, the order would be valid.  (Union of India Vs Paul Manickam & Anr.) 2004(1) Criminal Court Cases 260 (S.C.)

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, S.3(1)(i) – Preventive detention – Representation to President of India or Governor amounts to representation to Central or State Govt. (Union of India Vs Paul Manickam & Anr.) 2004(1) Criminal Court Cases 260 (S.C.)

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, S.3(1)(i) – Preventive detention – Where the detention order in respect of a person already in custody does not indicate that the detention was likely to be released on bail, the order would vitiate – Order of detention must show that Authority passing the order was aware of custody. (Union of India Vs Paul Manickam & Anr.) 2004(1) Criminal Court Cases 260 (S.C.)

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, S.3(2)- Representation – Consideration – Translated copies not furnished to authority considering the representation – Detenue suffered prejudice. (Philomina Vs Government of Kerala) 2002(1) Criminal Court Cases 633 (Kerala)

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, S.3(i), (ii) and (iii) – Seizure of counterfeit currency notes concealed in the television set in the presence of the detenu – The role of the detenu was admittedly restricted to transportation of notes which action was aborted by the customs officers – Knowledge could not be attributed to detenu that he was aware of notes being smuggled from Dubai by someone who has asked detenu to collect television set – Telephone calls recorded in print out of his cellular phone from someone in Dubai is a very tenuous piece of evidence to attribute knowledge – Detenu not involved in smuggling at any time in past – Order of detention quashed. (Gulam Kadar Gulam Rasool Vs State of Maharashtra) 2002(3) Criminal Court Cases 660 (Bombay)  

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, S.3(i)(iv), Constitution of India, Articles 136, 32 and 226 – Preventive detention – Habeas Corpus petition – Dismissal by High Court – SLP under Article 136 also dismissed by Supreme Court – Independent Habeas Corpus petition under article 32 of Constitution is maintainable when there is subsequent change in circumstances or a new plea is raised which was not available earlier. (T.P.Moideen Koya Vs Government of Kerala & Ors.) 2005(1) Criminal Court Cases 297 (S.C.)

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, S.3(i)(iv) – Preventive detention – High Court dismissed Habeas Corpus petition – SLP not filed – Order of High Court became final – It is still open to petitioner to file an independent petition in Supreme Court under Art.32 seeking writ of Habeas Corpus. (T.P.Moideen Koya Vs Government of Kerala & Ors.) 2005(1) Criminal Court Cases 297 (S.C.)

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, S.3(i)(iv) – Preventive detention – Order of – Against a person who is already in custody in a criminal case – Need not be passed – However, there is not bar for passing a detention order even against such a person if the detaining authority is subjectively satisfied from the material placed before him that a detention order should be passed. (T.P.Moideen Koya Vs Government of Kerala & Ors.) 2005(1) Criminal Court Cases 297 (S.C.)

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, S.3(1) – Preventive detention order – Delay of eight months in service of order upon detenu – Explanation of delay not convincing – High Court rightly quashed the detention order. (Lt.Governor of Delhi & Ors. Vs Mohd.Sahid) 2003(1) Apex Court Judgments 109 (S.C.)

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, S.3(1)(i) – Preventive detention – Important material documents revealing source of foreign exchange found in possession of detenue were before sponsoring authority but not placed before detaining authority – Held, detention order cannot be sustained. (Felix C.Okochi Vs The State of Tamil Nadu & Ors.) 2003(1) Apex Court Judgments 592 (S.C.)

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, Ss.3 and 11 – Constitution of India, 1950 – Article 22 (5) – Preventive Detention – Representation – Detenu has right to represent which includes right of consideration by authority to whom representation is made. (Union of India & Anr. Vs Sneha Khemka & Anr. ) 2004(2) Criminal Court Cases 652 (S.C.)

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, Ss.3 and 11 – Detention – Competent authority – Order of detention can be passed by – 1) authority specially empowered by central Govt. – 2) State Govt. – 3) Central Govt. (Union of India & Anr.  Vs  Sneha Khemka & Anr. ) 2004(2) Criminal Court Cases 652 (S.C.)

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, Ss.3 and 11 – Detention – Representation – Consideration – Order of detention can be revoked by detaining authority, State Govt. or Central Govt. – Detenu is entitled to make different representations before different authorities – Whether a representation made before one authority must be considered by other authorities also – Held No – Only authority before whom representation is made is obliged to consider it. (Union of India & Anr.  Vs  Sneha Khemka & Anr. ) 2004(2) Criminal Court Cases 652 (S.C.)

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, Ss.3(1) & 8 – Preventive detention – Successive representations – Non consideration – There is no constitutional right of a detenu to make successive representations, nor is there a corresponding obligation on the competent authority to consider and dispose of such representation by a separate order, unless the subsequent representation discloses “fresh grounds” or “fresh material” or any “subsequent event” which may justify the consideration of another representation – A mere reiteration of the same grounds on the same material is not sufficient, and in such a case there is no legal obligation even to consider such a representation. (Abdul Razak Dawood Dhanani  Vs Union of India & Ors.) 2003(2) Apex Court Judgments 83 (S.C.)

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, S.11 – Detention – Revocation – Authority – Order of detention can be revoked by – 1) authority passing detention order  – 2) State Govt. – 3) Central Govt. (Union of India & Anr.  Vs  Sneha Khemka & Anr. ) 2004(2) Criminal Court Cases 652 (S.C.)

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, S.11 – Power of Govt. is of supervisory in nature –  The Govt. in exercise of the power u/s 11 does not  consider the question of sufficiency or adequacy of the grounds but it would only see whether the detention order is within the parameters of the power conferred under the statute – In other words, it will not review the case as if it is an original or appellate authority – However, the Government has a duty to consider the representation in proper perspective in order to see whether the order of detention is in conformity with law. (A.C.Razia Vs Government of Kerala & Ors.) 2004(2) Criminal Court Cases 549 (S.C.)

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, Ss.11,  3(2) – Detention order – Based on certain documents which were in Malayalam – Grounds of detention together with the supporting documents should be made available to the detenu in a language known to him – There is no constitutional requirement that English translation of documents should be made available to Authority who is required to deal with representation. (A.C.Razia Vs Government of Kerala & Ors.) 2004(2) Criminal Court Cases 549 (S.C.)

Consolidation of suits – CPC does not specifically speak of consolidation of suits but the same can be done under inherent powers to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of Court – Consolidation of suits saves the parties from multiplicity of proceedings, delay and expenses – Complete or even substantial and sufficient similarly of the issues arising for decision in two suits enables the two suits being consolidated for trial and decision – As the suits are two, Court may, based on the common judgment, draw two different decrees or one common decree to be placed on the record of the two suits. (Civil Procedure Code, 1908, S.151). (M/s Chitivalasa Jute Mills Vs M/s Jaypee Rewa Cement) 2004(2) Civil Court Cases 459 (S.C.)

Consolidation of suits – Three suits relating to management of educational society pending in three different courts – Parties not identical – Suo motu power of transfer exercised without notice to parties – All the three suits consolidated to be decided by one Court. (Shabir Ahmed Khilji Vs Mehar M.Sadique & Ors.) 2004(2) Civil Court Cases 449 (Rajasthan)

Constitution of India, Art.14 – Public contracted – Granted for specific period – There is no question of renewal on expiry of that period – Public auction/public tender to be held by making fresh advertisement. (Vashisht Kumar Jaiswal Vs State of U.P.) AIR 2004 All. 105

Constitution of India, Arts.14, 299 – Tender – Conditions – Conditions not given in tender notice – Subsequently communicated only through letter – Condition that tender should be submitted in two covers – Not contained in tender notice – Communicated to tenderer only subsequently by letter – Such condition cannot be equated with tender notice – For violation of such condition tender cannot be rejected. (M/s M.K.Hegde Constructions Private Limited Vs The Karnataka University and others) AIR 2002 Karnataka 41

Constitution of India, Art.19 – Fundamental right – Infringement – Question cannot be gone into when facts are disputed. (Dwarka Prasad Agarwal (D) by Lrs. and Anr. Vs B.D.Agarwal) 2003(3) Civil Court Cases 546 (S.C.) : 2003(2) Apex Court Judgments 453 (S.C.)

Constitution of India, Art.20(3), Evidence Act, 1872, S.132 – State case and private complaint on basis of same incident – Witness facing trial in private complaint only – Even if he is compelled to depose as witness in State case that would not amount to compulsion to give evidence against himself. (State of Maharashtra Vs Balasaheb @ Ramesh Laxman Deshmukh) 2002(1) Criminal Court Cases 271 (Bom.)

Constitution of India, Art.20(3), Evidence Act, 1872, Ss.45, 73 – “Witness against himself” – Giving of finger-impressions or specimen writing or signature by an accused person – Cannot be said to be a witness against himself – Thus Court can ask an accused to give his thumb impression. (Maya Bansal Vs State of Raj.) 2003(2) Criminal Court Cases 210  (Rajasthan)

Constitution of India, Art.21 – Compensation – Accused died during his imprisonment due to beating given by employees of jail – Fundamental right of accused guaranteed under Article 21 is violated – State is required to grant monetary relief to victim for violation of his fundamental rights – Doctrine of State immunity is not available – State directed to pay compensation of Rs.2,50,000/- to widow. (Smt.Dhanno Vs Union of India)   2002(2) Criminal Court Cases 141 (Delhi)

Constitution of India, Art.21 – Compensation – On the basis of an affidavit by respondent that she was unlawfully detained and molested by police – State directed to pay compensation of Rs.One lac on basis of affidavit without holding enquiry and without completion of trial – Order of High Court set aside. (State Rep. by Inspector of Police & Ors. Vs N.M.T.Joy Immaculate) 2004(3) Criminal Court Cases 669 (S.C.)

Constitution of India, Article 21 – Passport – Petitioner involved in two criminal cases and his name entered in terrorist list –  Accused acquitted in both the cases – Accused not even remotely connected with terrorist activities – Passport to travel abroad cannot be denied – A person’s right to travel abroad is fundamental right. (Balvinderpal Singh Vs Union of India) 2004(3) Criminal Court Cases 662 (P&H)

Constitution of India, Articles 21 & 22 – Jails – Baffling conditions – Lavish parties thrown and Darbars held in jails, no proper record of visitors kept, persons who entered jail met the inmates and hatched conspiracies for committing murders – State Govt. directed to hold detailed enquiry and appoint a commission to suggest preventive action – State Govt. to take criminal or other action against guilty officials – Cost imposed by High Court on IG Prisons and Addl. Chief Secretary waived for the present. (State of Maharashtra & Ors. Vs Asha Arun Gawali & Anr.) 2005(1) Criminal Court Cases 35 (S.C.)

Constitution of India, Arts.21, 226 – Members of armed forced while on duty caused death – Employers of offender, vicariously liable for tortuous act of offender and as such liable for payment of compensation. (Sutendra Debbarma Vs The Union of India) AIR 2004 Gauhati 62

Constitution of India, Art.25 – Islamic girl studying in exclusive girls section – Principal gave her direction not to wear head scarf or cover her head while attending school – Does not violate her right to religion guaranteed by Art.25. (Fathema Hussain Sayed Vs Bharat Education Society) AIR 2003 Bombay 75

Constitution of India, Arts.25, 26, 29(1), Cinematography Act, 1952, S.5-B – ‘Gadar’ – Screening of film – Does not offend religious susceptibilities of Sikhs. (Sant Eashar Singh Vs Union of India) AIR 2002 P&H 25

Constitution of India, Art.30(1) – Minority status – Conferred – Withdrawal on basis of new guidelines issued and without affording opportunity of hearing – Impermissible. (Thirumuruga Kirupananda Variyar Vs State of Tamil Nadu) AIR 2002 Madras 42

Constitution of India, Article 32, Indian Penal Code, 1860, S.302, Juvenile Justice Act (Care and Protection of Children) Act, 2000, S.4 – Death sentence – Review petition that accused was a juvenile on the date of commission of offence also dismissed by Supreme Court – Petition under article 32 of Constitution of India is not maintainable – Accused can file curative petition. (Zakarius Lakra & Ors. Vs Union of India & Anr.) 2005(2) Criminal Court Cases 137 (S.C.)

Constitution of India, Art.32 – Ordinarily, the aggrieved party which is affected by any order has the right to seek redress by questioning the legality, validity or correctness of the order, unless such party is a minor, an insane person or is suffering from any other disability which the law recognizes as sufficient to permit another person, e.g. next friend, to move the court on his behalf. (Ashok Kumar Pandey Vs State of West Bengal & Ors.) 2004(1) Criminal Court Cases 246 (S.C.)

Constitution of India, Articles 32 & 136 – Order passed in SLP under Article 136 – Supreme Court cannot review its order or hear appeal against order in exercise of its power under Article 32 – A decision rendered by Supreme Court in proceedings under Article 136, attaining finality binds parties and the same issue cannot be reagitated or reopened in a subsequent petition under Article 32 of the Constitution. (T.P.Moideen Koya Vs Government of Kerala & Ors.) 2005(1) Criminal Court Cases 297 (S.C.)

Constitution of India, Articles 32 & 226 – Implicating a person in false criminal cases – On the basis of a news report High Court taking suo motu cognizance and directing Sessions Judge to hold enquiry against a Senior Police Officer who got false cases registered against a person – Order of High Court set aside as there was no material in the news report for making such an order. (S.P.S.Rathore Vs State of Haryana & Ors.) 2005(2) Criminal Court Cases 871 (S.C.)

Constitution of India, Articles 32 and 226 – Fundamental rights – Violation of – Court while exercising jurisdiction under Articles 32 and 226 can award compensation for the violation of fundamental rights guaranteed by the Constitution but such power should not be lightly exercised. (S.P.S.Rathore Vs State of Haryana & Ors.) 2005(2) Criminal Court Cases 871 (S.C.)

Constitution of India, Art.45, 46, 226 – Public Schools – Tuition fee – Govt. has to keep in mind constitutional obligations envisaged under Arts.45 and 46 and ensure that fees are not beyond reach of weaker sections of Society including SCs and STs. (Meghalaya Parents and Guardian Association Vs State of Meghalaya) AIR 2002 Gauhati 20

Constitution of India, Article 72 and 161 – Judicial Review – Order under Article 72 / 161 is open to judicial review in case it is wholly irrelevant, irrational, discriminatory or malafide – Court cannot go into  the merits of grounds which persuaded the Governor in taking a decision in exercise of his powers – Governor shall not be deprived of an opportunity to exercise his powers in a fair and just manner. (Dhananjoy Chatterjee alias Dhana  Vs State of West Bengal & Ors. ) 2004(2) Criminal Court Cases 720 (S.C.)

Constitution of India, Article 136 – Appeal against acquittal by private party – Held, Supreme Court can entertain an appeal against acquittal at the instance of interested private party. (Ramakant Rai Vs Madan Rai & Ors.) 2004(3) Criminal Court Cases 690 (S.C.)

Constitution of India, Article 136 – Conviction of three accused – Appeal by one – Conviction of appellant set aside – Case of other two accused who did not file appeal stood on same footing – Other two accused also acquitted. (Anjlus Dungdung Vs State of Jharkhand) 2005(1) Criminal Court Cases 246 (S.C.)

Constitution of India, Article 136 – Criminal case and maintenance petition filed by wife at Delhi – Husband filed a petition for divorce at place ‘H’ in Andhra Pradesh – Husband seeking transfer of criminal case and maintenance petition filed by wife at Delhi to a Court at place ‘H’ in Andhra Pradesh – Parents of Wife living in Andhra Pradesh and she owning a house in Andhra Pradesh – In the facts and circumstances and in interest of justice both cases pending in Court at Delhi ordered to be transferred to Court at place ‘H’ in Andhra Pradesh. (Eluri Raji Reddy & Ors. Vs State of Delhi & Anr.) 2004(4) Criminal Court Cases 582 (S.C.)

Constitution of India, Articles 136 & 32 – Leave to appeal – Refusal – Reasons to be indicated – Any causal or summary disposal not proper. (Reema Aggarwal Vs Anupam & Ors.) 2004(1) Criminal Court Cases 676 (S.C.)

Constitution of India, Art.141 – Statutes – Interpretation – While interpreting a provision the Court only interprets the law and cannot legislate it – If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. (Maulavi Hussein Haji Abraham Umarji Vs State of Gujarat & Anr.) 2004(4) Criminal Court Cases 289 (S.C.)

Constitution of India, Article 141 – Binding Precedent – Order passed in SLP under Article 136 by supreme court – Order passed in any SLP at threshold without detailed reasons does not constitute any declaration of law or constitute a binding precedent. (Narcotics Control Bureau Vs  Dilip Pralhad Namade) 2004(2) Criminal Court Cases 496 (S.C.)

Constitution of India, Article 141 – Precedent – Judgment not taking note of statutory provision – View, if any, expressed without analysing the statutory provision cannot be treated as a binding precedent – At the most considered as having been rendered per incuriam. (N.Bhargavan Pillai (dead) by Lrs. & Anr.  Vs  State of Kerala ) 2004(2) Criminal Court Cases 575 (S.C.)

Constitution of India, Art.165(1), 217(1) – Advocate General – Appointment – Consultation with Chief Justice of State is not necessary. (Manendra Nath Rai Vs Virendra Bhatia) AIR 2004 Allahabad 133

Constitution of India, Art.226, Civil Procedure Code, 1908, O.23.R.3 – Provisions of CPC are not applicable to proceedings under Article 226 of Constitution of India – However, requirement under O.23.R.3 CPC can be pressed into service even in writ proceedings. (K.Venkatachala Bhat & Anr. Vs Krishna Nayak (D) by Lrs. & Ors.) 2005(1) Apex Court Judgments 692 (S.C.)

Constitution of India, Art.226, Criminal Procedure Code, 1973, S.482 – Transfer of convict from Central Jail to District Jail enabling convict’s family to visit convict – Transfer ordered on humanitarian consideration for three months – For permanent order of transfer, convict to apply to Director General Prisons. (Mangu KhanVs State of Raj.) 2002(3) Criminal Court Cases 271 (Raj.) 

Constitution of India, Art.226, Registration Act, 1908, S.71 – Writ petition – Declaratory relief in regard to immovable property where such grant involves disputed question of fact which cannot be satisfactorily decided in writ petition cannot be granted – Document registered whether sale deed or mortgage deed cannot be decided in writ petition. (Veerabhadrappa & Anr. Vs Jagadishgouda) 2003(1) Civil Court Cases 546 (Karnataka) 

Constitution of India, Art.226 – Affidavit – On behalf of State – Affidavit filed by State through Secretary of concerned Administrative Department – Approved by Advocate General – Held, affidavit on face of it should be taken as “Statement” made in Court on behalf of State. (Arbind Kumar Roy Vs Union of India) AIR 2002 Jharkhand 15

Constitution of India, Art.226 – CPC – Not applicable to writ petition – Writ Court has no jurisdiction to determine an issue on private dispute over a property or right under a partnership. (Dwarka Prasad Agarwal (D) by Lrs. and Anr. Vs B.D.Agarwal & Ors.) 2003(2) Apex Court Judgments 453 (S.C.) : 2003(3) Civil Court Cases 546 (S.C.)

Constitution of India, Art.226 – Custody of children – Mother living separately – Children lived with father from infancy and he used to look after their welfare and education – Under compromise decree of divorce custody of children given to mother – Children thereafter of their own left maternal home for going to their father – Children living with father of their own volition and expressed their desire to be with father – It is their wish that their interest would be better safeguarded if they live with father – No evidence to establish that father had in any way abducted children from maternal home or that he is retaining the children against their wishes or by force – Father having no objection whatsoever if children going back and stay with mother as and when they desire – Thus petition filed by mother for habeas corpus for custody of children liable to be dismissed in view of welfare of children. (Sangeetha Vs The Commissioner of Police) AIR 2002 Kerala 16

Constitution of India, Art.226 – Education – Admission – Cancellation – Candidate admitted into course and successfully completed 2 years of course – Cancellation of his candidature thereafter questioning the genuineness of his experience certificate produced by him which was only one of conditions for admission into course – Held, not proper – Authorities could check genuineness of certificate at time of admission itself. (Shahabuddin Vs MDS University) AIR 2002 Rajasthan 1

Constitution of India, Art.226 – Habeas Corpus writ – Son of petitioner alleged to be lifted from school & detained illegally – Police denying fact on affidavit – District Judge conducted inquiry pursuant to order by High Court – Fact found not established after recording evidence – High Court does not ordinarily enter into factual controversy while exercising discretionary writ jurisdiction – Writ petition dismissed. (Mohd. Rashid through Maulana Kallan & Anr. Vs State of U.P. & Ors.) 2005(1) Criminal Court Cases 33 (Allahabad)

Constitution of India, Art.226 – High Court while exercising jurisdiction under Art.226 does not act as an appellate authority – Its jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice – Judicial review is not akin to adjudication of the case on merits as an Appellate Authority. (Lalit Popli Vs Canara Bank & Ors.) 2003(1) Apex Court Judgments 383 (S.C.)

Constitution of India, Art.226 – Mandamus – For maintaining this writ petition it must be preceded by notice of demand and refusal thereof. (Ramswaroop Bagiri Vs State of Rajasthan) AIR 2002 Rajasthan 27

Constitution of India, Art.226 – Newspaper report – Cannot be basis of filing of writ petition – Statement of fact contained in newspaper is merely hearsay and inadmissible in evidence. (Ramswaroop Bagari Vs State of Rajasthan) AIR 2002 Rajasthan 27

Constitution of India, Art.226 – Writ of certiorari – Scope – An error apparent on face of record can be corrected by certiorari – However, certiorari jurisdiction is not to be exercised as a matter of course. (Surya Dev Rai Vs Ram Chander Rai & Ors.) 2004(2) Apex Court Judgments 221 (S.C.)

Constitution of India, Art.226 – Writ petition – Private dispute – Compromise – High Court has no jurisdiction to record the compromise – Order passed by Court without jurisdiction is a nullity. (Dwarka Prasad Agarwal (D) by Lrs. and Anr. Vs B.D.Agarwal & Ors.) 2003(2) Apex Court Judgments 453 (S.C.) : 2003(3) Civil Court Cases 546 (S.C.) 

Constitution of India, Art.226 – Writ petition – Private disputes – Settlement – Partnership firm carrying business of publication of newspaper – Large number of private disputes pending for adjudication in Civil Courts – Relief sought in writ petition primarily revolved round order of authentication of declaration made by one of the respondents under provisions of Press and Registration Act – Agreement recording terms of settlement between parties on their private dispute executed on 29.6.1992 – Application for disposal of writ petition in terms of said agreement passed on same day – Writ Petition not ready for hearing on the said date – High Court has no jurisdiction to record the compromise – Public law remedy could not  be resorted to having regard to facts and circumstances of the case. (Dwarka Prasad Agarwal (D) by Lrs. and Anr. Vs B.D.Agarwal & Ors.) 2003(2) Apex Court Judgments 453 (S.C.) : 2003(3) Civil Court Cases 546 (S.C.)

Constitution of India, Arts.226 & 227, Civil Procedure Code, 1908, S.151, O.47.R.1 – Civil Court – Inherent power – Order passed in exercise of – Writ jurisdiction cannot be invoked to challenge such order, without availing remedy provided by Code. (Mrs.Mangalabai Vs The Sangli Bank Limited) 2003(2) Civil Court Cases 20 (Karnataka) 20 

Constitution of India, Arts.226 & 227 – Difference between writ of certiorari and supervisory jurisdiction – Power under Art. 227 is wider than the one conferred on High Court by Art. 226 – However, distinction between two jurisdictions is obliterated in practice. (Surya Dev Rai Vs Ram Chander Rai & Ors.) 2004(2) Apex Court Judgments 221 (S.C.)

Constitution of India, Arts.226 & 227 – Petrol dealer – Cancellation of dealership – Alternative remedy of arbitration available – High Court dismissed petition – Held, as dealership is terminated on irrelevant and non-existent cause as such it attracts writ jurisdiction. (Harbanslal Sahnia & Anr. Vs Indian Oil Corpn. Ltd. & Ors.) 2003(1) Apex Court Judgments 279 (S.C.)

Constitution of India, Art.227, Civil Procedure Cod, 1908, S.115(1) Proviso – Where revision petition u/s 115 CPC is not tenable, remedy of moving a writ petition under Article 227 of the Constitution continues to be available. (Chandu  & Anr. Vs Digambar & Ors.) 2004(3) Civil Court Cases 601 (Bombay)

Constitution of India, Art.227 – Evidence closed and case listed for arguments – Writ petition against order closing of evidence is not maintainable. (Arjun Singh Vs A.D.J.Behror & Anr.) 2004(3) Civil Court Cases 31 (Rajasthan)

Constitution of India, Art.227 – High Court – judicial superintendence – Power to be exercised sparingly – Said power is not meant to circumvent statutory law or to correct errors of Subordinate Courts and Tribunals. (Mulla Alamsabgari Dastigiri Vs B.Pullamma & Ors.) 2005(1) Civil Court Cases 126 (A.P.)

Constitution of India, Art.227 – Interference under Article 227 – Court can interfere only when there is manifest injustice caused to the party invoking the jurisdiction. (Dharamvir Vs Naresh Kumar & Oars.) 2005(1) Civil Court Cases 770 (P&H)

Constitution of India, Art.227 – Rebuttal evidence – Inspite of several opportunities rebuttal evidence not led – Evidence closed and case fixed for arguments – Held, petitioner failed to lead evidence inspite of several opportunities given – Matter not satisfying parameters of Art.227 – Petition dismissed. (Arjun Singh Vs A.D.J.Behror & Anr.) 2004(3) Civil Court Cases 31 (Rajasthan)

Constitution of India, Art.227 – Superintendence – Power of High Court – High Court can quash order passed by subordinate Court where it goes beyond its legal jurisdiction. (Babasaheb Dadasaheb Koli Vs State of Maharashtra) 2004(2) Criminal Court Cases 57 (Bombay)

Constitution of India, Art.227 – Supervisory jurisdiction – To be exercised only for the purposes of keeping the subordinate courts within bounds of their jurisdiction – Supervisory jurisdiction is not available to correct mere errors of fact or of law unless the error is manifest and apparent on the face of the proceedings, such as when it is based on clear ignorance or utter disregard of the provision of law, and thereby resulted in grave injustice or gross failure of justice – Where two inferences are reasonably possible and the subordinate court has chosen to taken one view, the error cannot be called grossly patent – Reappreciation or evaluation of evidence cannot be undertaken as a court of appeal. (Sunder Vs Mohd. Ismail & Anr.) 2004(3) Civil Court Cases 633 (A.P.)

Constitution of India, Art.235 – Adverse remarks by High Court Judge against Presiding Officer of lower Court – Observations ordered to be expunged and directions contained in the order set aside as the same were made without affording the Judicial Officer an opportunity of hearing. (In The matter  of “RV”, A Judicial Officer) 2005(1) Criminal Court Cases 150 (S.C.)

Constitution of India, Art.324 – Election Commission – Instructions issued by it – Are binding on their subordinates. (S.Janakiraman Vs Union of India) AIR 2002 Madras 5

Constitution of India, Art.366, 342, H.P.State Act, 1971 – ‘Schedule Tribes’ – ‘Lohar’ – Is one of the community of Scheduled Tribes in the State of Himachal Pradesh. (Smt.Sonam Dolma Vs Phunchog Angrup) 2003(3) Civil Court Cases 332 (H.P) 

Consumer Protection Act, 1986 – Act is one of benevolent pieces of legislation intended to protect a large body of consumers from exploitation – Provisions of the Act ought to be interpreted in a rational manner for achieving the objective set forth in the Act – Approach of the Forums has to be rational consistent with the purpose of the Act rather than technical. (H.N.Shankara Shastry Vs The Assistant Director of Agriculture) 2004(2) Apex Court Judgments 01 (S.C.)

Consumer Protection Act, 1986 – Telephone – Dispute as to payment of telephone bill – Remedy under Consumer Protection Act is in addition to that provided under S.7-B of the Telegraph Act – It is not in derogation thereof – The option to invoke one or the other remedy lies with the aggrieved party. (Consumer Protection Act, 1986, S.3, Telegraph Act, 1885, S.7-B.) (General Manager, Telecom, BSNL Vs Krishnan) 2003(2) Civil Court Cases 108 (Kerala) 

Consumer Protection Act, 1986, Bank – Frozen of working facilities by bank given to claimant without good reason – Damages and travelling and other expenses incurred by claimant industry also claimed – Such claim requires detailed evidence – Cannot be entertained by Commission – Civil suit is the proper remedy – Filing of claim before Commission is to save court fees and is an abuse of process of Consumer Forum. (Synco Industries Vs State Bank of Bikaner and Jaipur) AIR 2002 S.C. 568

Consumer Protection Act, 1986, Electricity – Disconnection – Petition against threatened disconnection – Petition in Consumer Forum is not maintainable when appeal against demand notice for back billing charges is pending under Electricity Act. (Mohammed Ibrahim Vs Distt. Consumer Disputes Redressal Forum) AIR 2002 Karnataka 176

Consumer Protection Act, 1986, Limitation Act, 1963, S.5 – 29 days delay in filing Revision – Sufficient cause disclosed for condoning delay – Order dismissing revision by not condoning delay set aside and matter remitted to be disposed of on merits in accordance with principles laid down by Supreme Court in Balbir Singh’s case. (Haryana Urban Development Authority Vs Vinay Kumar) 2005(1) Apex Court Judgments 313 (S.C.)

Consumer Protection Act, 1986, Ss.2(1)((o) r/w 2(1)(g) – Charges for MICR cheque leaves – Bank charging unilaterally without prior information or consent of customer – Consumer Forum and State Commission holding it deficiency – Decision of National Commission that it was a matter relating to pricing and not in jurisdiction of Consumer Fora, upheld. (Archana M.Kamath Vs Canara Bank & Anr.) 2003(1) Apex Court Judgments 681 (S.C)

Consumer Protection Act, 1986, S.11 – Operation – Postponement by doctor – District Forum finding that there was no deficiency in service – However District Forum directing to hold administrative inquiry about the misconduct of the petitioner and for reimbursement of the expenses incurred by the complainant for operation – Has exceeded its jurisdiction. (Dr.Manmath S.Raut Vs Malikarjun Laxman Babare) AIR 2003 Bombay 262

Consumer Protection Act, 1986, Ss.12 & 17 – Delay in delivery of plots – Refund of money – Interest – Cannot be allowed at the rate of 18% in all cases – Forum can grant damages/compensation for mental agony/harassment where it minds misfeasance – Such compensation is a recompense for the loss or injury and it necessarily has to be based on a finding of loss or injury and must co-relate with the amount of loss or injury – Forum  has to determine that there was deficiency in service and/or misfeasance in public office and that it has resulted in loss or injury. (Haryana Urban Development Authority Vs Dev Dutt Gandhi) 2005(1) Apex Court Judgments 193 (S.C.) : 2005(1) Civil Court Cases 721 (S.C.)

Consumer Protection Act, 1986, Ss.12 & 17 – Plot – Possession of alternative plot given at old rate – Party gets benefit of escalation in price of land – Interest cannot be awarded on amount deposited – Plot allotted in 1986 and possession given in 2002 – Compensation towards mental agony/harassment and for escalation in cost of construction should have been awarded – Interest at 12% p.a. on deposited amount till date of possession awarded as compensation for mental agony and increase in cost of construction. (Haryana Urban Development Authority Vs Vijay Aggarwal) 2005(1) Apex Court Judgments 316 (S.C.)

Consumer Protection Act, 1986, Ss.13, 17, 20, 22 – Consumer Forum – Jurisdiction and procedure – Denial of hearing – Mere complication of either of facts or of law is no ground for denial of hearing –  – Entertainability of a complaint by forum under the Act is to be determined as to whether questions though complicated are capable of being determined by summary enquiry – Decisive test is not the complicated nature of questions of fact and law arising for decision – It is only when dispute arising for adjudication is such as would require recording of lengthy evidence not permissible within the scope of a summary enquiry that a consumer forum may ask the complainant to approach the Civil Court. (CCI Chambers Co-op Hsg. Society Ltd. Vs Development Credit Bank Ltd.) 2003(2) Apex Court Judgments 480 (S.C.)

Consumer Protection Act, 1986, S.14(1) –  Defective goods – If District Forum is satisfied that the goods complained against suffer from any defect, then relief can be granted which include return of the price of goods and also compensation to the consumer for any loss suffered – Granting of relief to the consumer does not depend upon whether he should have made alternative arrangement. (H.N.Shankara Shastry Vs The Assistant Director of Agriculture) 2004(2) Apex Court Judgments 01 (S.C.)

Consumer Protection Act, 1986, S.14(1) – 10 bags of paddy purchased for raising paddy – Seeds germinated to extent of 10 to 20% in nursery and could not be transplanted in filed – District Forum directed refund of price of seeds and damages due to loss of crop – State Commission in appeal reduced compensation to Rs.1000/- on a reasoning that consumer when found seed did not germinate in nursery should have taken another lot of seed to raise crop – National Commission upheld order of State Commission – Held, State Commission committed serious error in its approach in expecting consumer to take steps to avoid loos – Approach was mere theoretical and not reasonable – Impugned order set aside and that of District Forum restored. (H.N.Shankara Shastry Vs The Assistant Director of Agriculture) 2004(2) Apex Court Judgments 01 (S.C.)

Consumer Protection Act, 1986, Ss.17, 3, Railways Act, 1989, S.124-A – Unruly mob entered into railway compartment and caused damage to person and property of appellant – Mob violence on stations en route a recurring phenomenon every year on Ambedkar day – No reasonable steps taken by Railway administration to avoid incident – Railway Administration failed to controvert effectively the allegations of injuries suffered by appellant and loss caused to her luggage – Railway administration is liable for loss suffered by appellant – Absence of plea of deficiency of service on part of Railway Administration or failure to raise issue as to maintainability of complaint before State Commission – Not a bar of jurisdiction of State Commission to entertain complaint in view of S.3. (Sumatidevi M.Dhanwatay Vs Union of India & Ors.) 2004(1) Apex Court Judgments 687 (S.C.)

Consumer Protection Act, 1986, Ss.21, 22 – Medical negligence – Complaint against hospital – Non joining of treating doctor – Complaint cannot be dismissed summarily for non joining of treating doctor – Hospital can discharge the burden by producing the treating doctor in defence that all due care and caution was taken and despite that patient died. (Savita Garg Vs The Director, National Heart Institute) 2005(1) Apex Court Judgments 283 (S.C.)

Consumer Protection Act, 1986, S.21 – Insurance claim – Insured not heard of for a period of seven years – Cannot be presumed to be dead – Nor can it be assumed that presumed death had synchronized with date when he was reported to be missing or that date and time of death could be correlated to the point of time coinciding with the commencement of calculation of seven years backwards from date of initiation of legal proceedings – Insurance policy lapsed due to non payment of premium until claim is made – Claimant only entitled to paid up value of policy. (Evidence Act, 1872, S.108). (L.I.C. of India Vs Anuradha) 2004(1) Apex Court Judgments 715 (S.C.)

Consumer Protection Act, 1986, S.23 – Complicated nature of facts – Direction to approach Civil Court – Commission to form an opinion only when pleading of both the parties are available. (CCI Chambers Co-op Hsg. Society Ltd. Vs Development Credit Bank Ltd.) 2003(2) Apex Court Judgments 480 (S.C.)

Consumer Protection Act, 1986, S.23 – Plot – Late delivery – Award of interest at 18% and Rs.5,000/- for mental agony – Possession given at old rate as such complainant gets benefit of escalation in land price – Interest cannot be awarded – Compensation towards mental agony is very low hence interest awarded is liable to be sustained. (Haryana Urban Development Authority & Anr. Vs S.P.Gupta) 2005(1) Apex Court Judgments 132 (S.C.)

Consumer Protection Act, 1986, S.23 – Plot – Late delivery – Escalation in construction cost – Compensation on this count cannot be denied even in absence of proof as judicial notice is to be taken that construction costs have gone up. (Haryana Urban Development Authority Vs Smt.Suman Bansal) 2005(1) Apex Court Judgments 159 (S.C.)

Consumer Protection Act, 1986, S.23 – Plot – Late delivery – Interest – Where possession of plot is given at the old rate then party gets benefit of escalation in price of land – In that case interest cannot be awarded. (Haryana Urban Development Authority Vs Smt.Suman Bansal) 2005(1) Apex Court Judgments 159 (S.C.)

Consumer Protection Act, 1986, S.23 – Plot – Late delivery – Interest – Where possession of plot is given at the old rate then party gets benefit of escalation in price of land – In that case interest cannot be awarded. (Haryana Urban Development Authority & Anr. Vs S.P.Gupta) 2005(1) Apex Court Judgments 132 (S.C.)

Consumer Protection Act, 1986, Ss.24, 25 – Decisions of the Consumer Dispute Redressal Fora including the State Commission and the National Commission are not binding precedents on the Courts. (Arun Balakrishnan Iyer & Anr. Vs M/s Soni Hospital & Ors.) 2004(2) Civil Court Cases 183 (Madras)

Consumer Protection Act, 1986, S.25 – Execution of order – Execution proceedings to be initiated and dealt with treating same as decree of Civil Court – State Commission while exercising appellate jurisdiction cannot entertain application for executing such order. (Chief General Manager Vs State Consumer Disputes Redressal Commission) AIR 2004 Calcutta 141

Consumer Protection Act, 1986, S.25 – Forum or the Commission is entitled to execute its order – It, however, may send the matter for its execution to a court only in the event it is unable to do so. (State of Karnataka Vs Vishwabarathi House Building Coop. Society & Ors.) 2003(1) Apex Court Judgments 393 (S.C.)

Consumer Protection Act, 1986 – Act is not unconstitutional. (State of Karnataka Vs Vishwabarathi House Building Coop. Society & Ors.) 2003(1) Apex Court Judgments 393 (S.C.)

Contempt of Court – Rightness or wrongness of the order cannot be urged in contempt proceedings –  Right or wrong the order has to be obeyed – If any party concerned is aggrieved by the order which in its opinion is wrong or against rules or its implementation is neither practicable not feasible, it should always either approach to the Court that passed the order or invoke jurisdiction of the Appellate Court – Flouting an order of the Court would render the party liable for contempt –  While dealing with an application for contempt the Court cannot traverse beyond the order, non-compliance of which is alleged. (State of Bihar & Ors. Vs Rajendra Singh & Anr.) 2005(1) Apex Court Judgments 339 (S.C.)

Contempt of Courts Act, 1971, S.2 – Civil & Criminal contempt – Distinction – Civil contempt is wilful disobedience of the order of the Court including breach of an undertaking given to the Court whereas  Criminal contempt includes doing any act whatsoever which tends to scandalise or lowers the authority of Court, or tends to interfere with the course of a judicial proceeding or interferes with, or obstructs the administration of justice in any other manner. (Pravin C.Shah Vs K.A.Mohd. Ali & Anr.) 2002(1) Criminal Court Cases 154 (S.C.)

Contempt of Courts Act, 1971, S.2(b) – Civil contempt – Failure to comply with or carry out an order of  Court made in favour of a party, amounts to civil contempt – Person in whose favour order or direction is made can initiate contempt proceedings – For initiating proceedings of civil contempt written consent of Advocate General is not required. (Pravash Kumar Sahoo & Anr. Vs S.M.Pattnaik) 2005(2) Civil Court Cases 70 (Orissa)

Contempt of Courts Act, 1971, S.2(b) – Disobedience of injunction order – Contempt proceedings cannot be permitted to be initiated when an effective and alternative remedy U.O.39.R.2-A or O.21.R.32 CPC is available. (Shiv Nath Prasad Khandelwal Vs Ram Kumar) 2003(2) Criminal Court Cases 422 (All.) 

Contempt of Courts Act, 1971, S.2(c) and 12 – Criminal contempt – Definition of criminal contempt is wide enough to include any act by a person which would whether scandalise the court or which would tend to interfere with the administration of justice – It would also include any act which lowers the authority of the Court or prejudices or interfere with the due course of any judicial proceedings – It is not limited to the offering of intentional insult to the Judge or interruption of the judicial proceedings. (Daroga Singh & Ors. Vs B.K.Pandey) 2005(1) Criminal Court Cases 442 (S.C.)

Contempt of Courts Act, 1971, S.2(c)(ii) and (iii) – Contempt of Court – Act which causes prejudice to cause of opposite party or litigant or results in delaying of dispensation of justice to such other party or litigant would be an interference in administration of justice as well in due course of judicial proceedings and in that sense the contemptuous act falls under both the provisions, namely S.2(c)(ii) and (iii). (Kapol Co-Operative Bank Ltd., Mumbai Vs State of Maharashtra & Ors.) 2005(1) Criminal Court Cases 812 (Bombay)

Contempt of Courts Act, 1971, Ss.2, 11, 12 – Contempt of Court by an Advocate – Advocate has to purge himself before he can appear in Court – Meaning of purge – If the convicted person undergoes punishment or if he tenders the fine amount imposed on him the purge would be completed. (Pravin C.Shah Vs K.A.Mohd. Ali & Anr.) 2002(1) Criminal Court Cases 154 (S.C.)

Contempt of Courts Act, 1971, Ss.2(3), 10 & 15 – Cross examination of persons deposing on affidavits – It is for the contemner to seek such an opportunity – If contemner do not avail of the opportunity at the trial stage the plea of non-observations of principles of natural justice is not tenable. (Daroga Singh & Ors. Vs B.K.Pandey) 2005(1) Criminal Court Cases 442 (S.C.)

Contempt of Courts Act, 1971, S.10 – Contempt of Court – Act of contemnor also constituted an offence punishable under IPC – Jurisdiction of High Court to take cognizance is not barred – Jurisdiction of High Court is excluded only in cases where acts alleged to constitute contempt are punishable as contempt under specific provisions of the Indian Penal Code, 1860.(Daroga Singh & Ors. Vs B.K.Pandey) 2005(1) Criminal Court Cases 442 (S.C.)

Contempt of Courts Act, 1971, Ss.10,12 – Violation of judgment and decree – No contempt of Court is made out if there is remedy of execution of decree. (Avtar Singh Vs Balkar Singh) 2003(1) Criminal Court Cases 135 (P&H) 

Contempt of Courts Act, 1971, S.11 – Govt. issued order imposing ban on withdrawal of G.P. fund by its employees – Order set aside by High Court – Govt. passed no revoking order for more than 7 years though disbursement of G.P. Fund were made – Commissioner-cum-Secretary to Govt. held guilty of contempt of Court and imposed a fine of Rs.5,000/-. (E.T.Sunup Vs C.A.N.S.S.Employees Assocn.) 2005(1) Criminal Court Cases 599 (S.C.)

Contempt of Courts Act, 1971, Ss.11, 12, Constitution of India, Articles 215 and 129, Advocates Act, 1961, S.34, Rules framed by High Court of Kerala, Rule 11 – Rule 11 provides that a lawyer found guilty of contempt cannot plead and practice unless he gets purged himself of contempt – Rule 11 is not unconstitutional. (Bar Council of India Vs High Court of Kerala) 2005(1) Criminal Court Cases 225 (S.C.)

Contempt of Courts Act, 1971, Ss.11, 12, Criminal Procedure Code, 1973, S.345 – Contempt of Court – An opportunity of hearing is to be given before punishment – Even such an opportunity of hearing is necessary in a proceeding under Section 345 of the Code of Criminal Procedure – But if a law which is otherwise valid provides for the consequences of such a finding, the same by itself would not be violative of Article 14 of the Constitution of India inasmuch as only because another opportunity of hearing to a person, where a penalty is provided for as a logical consequence thereof, has been provided therefor. (Bar Council of India Vs High Court of Kerala) 2005(1) Criminal Court Cases 225 (S.C.)

Contempt of Courts Act, 1971, Ss.11 & 12 – Contempt of Court – Advocate – An advocate is allowed considerable freedom in conducting his case – He even can cast reflections upon the character, conduct or credit of parties or witnesses with impunity, provided such comments are relevant to the issue before the court and the same is not defamatory in character – Dignity of the court is required to be maintained in all situations – A lawyer is not justified in making personal attack upon the complainant or witnesses on matters not borne out by the record nor in using language which is abusive or obscene or in making vulgar gestures in court – An advocate in no circumstances is expected to descend to the level of appearing to support his view in a vulgar brawl. (Bar Council of India Vs High Court of Kerala) 2005(1) Criminal Court Cases 225 (S.C.)

Contempt of Courts Act, 1971, Ss.11 & 12 – Contempt of Court – Summary power of punishment – Is used sparingly and only in serious cases. Such a power which a court must of necessity possess but its usefulness depend upon the wisdom and restraint with which it is exercise. It is not used to suppress methods of advocacy. (Bar Council of India Vs High Court of Kerala) 2005(1) Criminal Court Cases 225 (S.C.)

Contempt of Courts Act, 1971, Ss.11 & 12 – Derogatory remarks in judgment – Person can seek expunction of remarks but cannot file contempt petition against Judge. (Deepak Kumar Prahladka Vs Chief Justice Prabha Shanker Mishra & Anr.) 2005(1) Criminal Court Cases 207 (S.C.)

Contempt of Courts Act, 1971, Ss.11 & 15 – Contempt of Court – In contempt proceedings rightness or wrongness of the order cannot be urged – Right or wrong the order has to be obeyed – If any party is aggrieved by the order which in its opinion is wrong or against rules or its implementation is neither practicable nor feasible, it should always either approach the Court that passed the order or invoke jurisdiction of the Appellate Court. (Prithawi Nath Ram Vs State of Jharkhand) 2005(1) Criminal Court Cases 135 (S.C.)

Contempt of Courts Act, 1971, S.12 – Contempt of Court – Apology – Tendered after full length arguments – Apology not accepted – Apology has not come at the earliest possible stage of the proceedings – It is just an excuse to escape punishment – Contemnor convicted and sentenced to one month rigorous imprisonment and to pay fine of Rs.2000/-. (Court on its own motion Vs Kuldip Singh) 2004(2) Criminal Court Cases 315 (P&H)

Contempt of Courts Act, 1971, S.12, Advocates Act, 1961, S.34(1) & Rule 11 framed by High Court of Kerala – Advocate – An Advocate punished for contempt cannot appear as counsel in Court unless he purges himself of contempt – Undergoing of punishment or tendering apology will not amount to purge – To purge himself the contemner is to implant or infuse in his own mind real remorse about his conduct which the Court found to have amounted to contempt of Court – Next step is to seek pardon from the Court for what he did on the ground that he really and genuinely repents and that he has resolved not to commit any such act in future – It is not enough that he tenders an apology – The apology tendered should impress the Court to be genuine and sincere. (Pravin C.Shah Vs K.A.Mohd. Ali & Anr.) 2002(1) Criminal Court Cases 154 (S.C.)

Contempt of Courts Act, 1971, S.12, Monopolies and Restrictive Trade Practices Act, 1969, Ss.13B, 18 & 15 – MRTP Commission is empowered to exercise all the powers to punish for contempt which have been conferred upon a High Court – Contempt Petition can be heard by Bench of two members of the Commission. (J.K.Gupta Vs D.G.Investigation & Registration) 2005(1) Criminal Court Cases 579 (S.C.)

Contempt of Courts Act, 1971, S.12 – Contempt – Placing of justification and an unconditional apology, is not a complete answer for not complying with the order of the Court. (Dr.Devendra Vs The Commissioner, Corporation of Madras) 2002(1) Criminal Court Cases 18 (Madras)

Contempt of Courts Act, 1971, S.12 – For holding liable in contempt what is necessary is to satisfy the conscience of the Court whether its order has been complied with by the parties or not and whether the disobedience is wilful or deliberate. (Dr.Devendra Vs The Commissioner, Corporation of Madras) 2002(1) Criminal Court Cases 18 (Madras)

Contempt of Courts Act, 1971, S.12 – Orders of courts have to be obeyed and continued to be obeyed unless overturned, modified or stayed by the appellate or revisional courts. (Daroga Singh & Ors. Vs B.K.Pandey) 2005(1) Criminal Court Cases 442 (S.C.)

Contempt of Courts Act, 1971, S.12 – Respondent directed to furnish an undertaking that if any construction was found in variation or violation against the sanctioned plan, he would demolish the same on his own – Undertaking not furnished – Construction raised in violation of sanctioned plan – Respondent is guilty of contempt of Court – Fine of Rs.5,000/- imposed and respondent also directed to demolish the unauthorised construction. (Dr.Devendra Vs The Commissioner, Corporation of Madras) 2002(1) Criminal Court Cases 18 (Madras)

Contempt of Courts Act, 1971, S.12 – The Court can issue appropriate direction to remedy and rectify the things done in violation of its order in addition to punishing the contemnor for contempt. (Dr.Devendra Vs The Commissioner, Corporation of Madras) 2002(1) Criminal Court Cases 18 (Madras)

Contempt of Courts Act, 1971, S.12 – “And stay granted” – Words interpolated in Court order whereas no stay was granted – It is contempt of Court – Writ petition dismissed with costs – Initiation of contempt proceedings does not amount to double jeopardy. (Court on its own motion Vs Kuldip Singh) 2004(2) Criminal Court Cases 315 (P&H)

Contempt of Courts Act, 1971, Ss.12, & 11 – Contempt petition – Contemptuous and reckless averments against judges – High Court found appellant guilty of contempt and sentenced him to six months imprisonment and fine of Rs.2,000/- – Conviction set aside as no notice and opportunity was given before holding him guilty. (Deepak Kumar Prahladka Vs Chief Justice Prabha Shanker Mishra & Anr.) 2005(1) Criminal Court Cases 207 (S.C.)

Contempt of Courts Act, 1971, Ss.12 & 11, Constitution of India, Art.215 – Remarks in judgment – Contempt petition against Judges – Petition cannot be placed and heard by the Judges who were made respondents. (Deepak Kumar Prahladka Vs Chief Justice Prabha Shanker Mishra & Anr.) 2005(1) Criminal Court Cases 207 (S.C.)

Contempt of Courts Act, 1971, Ss.12 & 2(c) – Contempt proceedings – Have to be decided in a summary manner. (Daroga Singh & Ors. Vs B.K.Pandey) 2005(1) Criminal Court Cases 442 (S.C.)

Contempt of Courts Act, 1971, S.14 – Criminal contempt of Court – Intention is not an essential ingredient. (Kapol Co-Operative Bank Ltd., Mumbai Vs State of Maharashtra & Ors.) 2005(1) Criminal Court Cases 812 (Bombay)

Contempt of Courts Act, 1971, Ss.14, 12(1) Proviso – Contempt of Court – Apology – Must be not only unconditional but also should disclose real contriteness, the consciousness of the wrong done as well as of the injury inflicted coupled with the sincere and earnest desire to make such reparation as lies in the contemners’ power. (Kapol Co-Operative Bank Ltd., Mumbai Vs State of Maharashtra & Ors.) 2005(1) Criminal Court Cases 812 (Bombay)

Contempt of Courts Act, 1971, S.15, Constitution of India, Article 215 – Contempt petition – Two contempt petitions filed in the High Court against appellant without obtaining the consent of the Advocate General – Requirement of obtaining consent in writing of the Advocate General for making motion by any person is mandatory –  The contempt petitions were never treated as suo motu petitions – In absence of compliance of mandatory requirement of S.15, the petitions are not maintainable. (Bal Thackrey Vs Harish Pimpalkhute) 2005(1) Criminal Court Cases 531 (S.C.)

Contempt of Courts Act, 1971, S.15 – Contempt – Purpose of – Purpose of contempt jurisdiction is to uphold the majesty and dignity of the courts of law – It is an unusual type of jurisdiction combining “the jury, the judge and the hangman” – This jurisdiction is not exercised to protect the dignity of an individual judge but to protect the administration of justice from being maligned – In the general interest of the community it is imperative that the authority of courts should not be imperiled and there should be no unjustifiable interference in the administration of justice.  (Bal Thackrey Vs Harish Pimpalkhute) 2005(1) Criminal Court Cases 531 (S.C.)

Contempt of Courts Act, 1971, Ss.15(2), 10 & 2(c) – Contempt of Subordinate Court – High Court can initiate proceedings on its own motion. (Daroga Singh & Ors. Vs B.K.Pandey) 2005(1) Criminal Court Cases 442 (S.C.)

Contempt of Courts Act, 1971, S.19 – Arrest inspite of bail – Appellant admitted that as per his belief the respondent had been granted bail – If that was so, appellant would have given an opportunity to the respondent to produce that order instead of arresting him despite that belief –  Appellant wanted to arrest the respondent any way – Held, appellant rightly found guilty of contempt of Court. (Bijay Kumar Mahanty Vs Jadu @ Ram Chandra Sahoo) 2003(1) Apex Court Judgments 252 (S.C.)

Contempt of Courts Act, 1971, S.19 – Electricity – Disconnection inspite of injunction – Civil contempt – Appeal against order of conviction and sentence – Fine instead of civil imprisonment ordered on sympathetic grounds as contemnor is to retire shortly. (P.G.Patra Vs Puran Foods & Anr.) 2003(1) Apex Court Judgments 429 (S.C.)

Contempt of Courts Act, 1971, Ss.20 & 15 – Contempt of Court – Limitation – To initiate contempt proceedings limitation is one year – However, limitation is not applicable when High Court initiates proceedings in exercise of power under Article 215 of the Constitution of India – Power of High Court under Article 215 of Constitution being summary in nature, has to be exercised with great care and caution. (Court on its own motion Vs Kuldip Singh) 2004(2) Criminal Court Cases 315 (P&H)

Contempt of Courts Act, 1971 – Arrest inspite of bail order – High Court imposing civil imprisonment of 7 days – Fine instead of imprisonment cannot be imposed as mere sentence of fine would not meet the ends of justice. (Bijay Kumar Mahanty Vs Jadu @ Ram Chandra Sahoo) 2003(1) Apex Court Judgments 252 (S.C.)

Contempt of Courts Act, 1971 – Contempt of Court  – Proceedings are quasi criminal in nature – Standard of proof required is that of criminal proceedings. (Bijay Kumar Mahanty Vs Jadu @ Ram Chandra Sahoo) 2003(1) Apex Court Judgments 252 (S.C.)

Contempt of Courts Act, 1971 – Contempt of Court – Apology – Tendered after 12 years after appeal was admitted by Apex Court – Not a fit case to accept apology. (Bijay Kumar Mahanty Vs Jadu @ Ram Chandra Sahoo) 2003(1) Apex Court Judgments 252 (S.C.)

Contempt of Courts Act, 1971 – Contempt of Court – When material on record did not show any wilful disobedience of order of Court, it would not constitute Contempt of Court. (Lt.Col.Nikhil Kumar Vs Smt.L.M.Vas) 2003(2) Apex Court Judgments 522 (S.C.)

Contempt of Courts Act, 1971 – Status quo order with respect to implementation of Arbitration Award – Matter remanded to High Court for its findings on other questions involved in the appeals as such no order passed on contempt petitions. (Narayan Prasad Lohia Vs Nikunj Kumar Lohia & Ors.) 2003(2) Apex Court Judgments 131 (S.C.)

Contempt of Courts Act, 1971 – Undertaking given in Court that documents will be kept in safe custody – Documents tampered with – Absence of material to conclusively establish the time when alleged tampering of documents in violation of undertaking had taken place – Doubt as to date falling prior to undertaking – Doubt as to who had custody of documents in question – Held, contempt petition is liable to be dismissed. (Subramanian Swamy Vs Hari Bhaskar) 2003(1) Apex Court Judgments 300 (S.C.)

Contempt of Courts Act, 1971 – Undertaking to vacate – Vacating a part in self possession and showing inability to vacate another part in possession of his brother – Neither indicated at the time of undertaking nor the case in any pleading that he is in possession of a part of the premises – Order of eviction passed on the first contemnor is equally binding upon the second contemnor – Order issued for eviction with the help of police. (K.C.G.Verghese Vs K.T.Rajendran & Anr.) 2003(1) Apex Court Judgments 632 (S.C.)

Contract – Breach of contract – Civil remedy for breach of contract available – Not a ground for quashing criminal proceedings. (Manjit Singh Vs State of Punjab) 2002(2) Criminal Court Cases 1 (P&H)

Contract Act, 1872, S.2(a) – Tender – Revoking before its acceptance – Earnest money cannot be forfeited by way of penalty there being no breach of contract. (State of Tripura & Anr. Vs M/s Bhowmik & Company) AIR 2004 Gauhati 19

Contract Act, 1872, S.2(d) – An agreement to pay money to abstain from prosecution is void and unenforceable. (Elamma Vs Fr.Joseph Aranhani Olikkan) 2003(2) Civil Court Cases 651 (Kerala) 

Contract Act, 1872, S.4 – Agreement – Acceptance – By telegram on the address given in tender – Absence of cross examination as to receipt of telegram – Held, in view of unrebutted statement that the telegram was sent at the address given in the tender establishes beyond doubt that the acceptance of tender stood conveyed to the appellant. (M/s Indian Hardware & Forgings Vs Haryana State Elect. Board) 2003(2) Civil Court Cases 609 (P&H) 

Contract Act, 1872, S.7 – Contract – Concluded contract – Contract containing arbitration clause – Offer accepted without protest and an attempt made to complete contract – It can be said that contract was accepted with stipulation as to agreement – It amounts to concluded contract and objection to arbitration clause cannot be raised thereafter. (Union of India Vs Peeco Hydraulic Pvt.Ltd.) AIR 2002 Delhi 367

Contract Act, 1872, S.15 – ‘Unlawful’ – Must be in the sense that it is an offence punishable under the Penal Code or any other illegal activity. (Thresia Vs Johny) 2003(1) Civil Court Cases 14 (Kerala) 

Contract Act, 1872, S.17 & Limitation Act, 1963, Arts. 57 & 59 – Cancellation of document obtained with fraud – To save land from Ceiling Law defendant No.2 counselling plaintiff to transfer his agricultural land by way of will and obtaining plaintiff’s thumb impression on blank papers and forging a gift deed and deed of adoption in favour of defendant No.1 and getting same registered on one and the same day with a gap of 15 minutes – Plaintiff aged 60, illiterate and not related to defendant – One attesting witness examined but he did not support the deed – Both deeds held to be result of fraud – Age of defendant No.1 at the time of adoption was 22 years and thus he was not capable of being adopted – Adoption otherwise also not proved – Suit for cancellation of documents filed within three years when fraud came to knowledge – Suit not time barred – Suit decreed. (Virendra Singh & Ors. Vs Kashiram (Deceased) Through Lrs.) 2004(3) Civil Court Cases 584 (Rajasthan)

Contract Act, 1872, S.23 – Giving up a legal right is not hit by S.23 – Motive of a party even to defeat execution of decree that may be passed against him would be immaterial. (Usman Koya Vs Santha) 2003(2) Civil Court Cases 59 (Kerala)

Contract Act, 1872, Ss.23, 172 – Loan agreement – Default in payment – Clause in agreement permitting financier to forfeit payments made – Is void – Any amount paid by debtor will have to be accounted for and credited to his account and right of creditor is only to recover the balance amount. (Tarun Vs State of Haryana) AIR 2003 P&H 98

Contract Act, 1872, Ss.23, 172 – Loan agreement – Default in payment – Clause in agreement permitting financier to repossess vehicle – Clause is void. (Tarun Vs State of Haryana) AIR 2003 P&H 98

Contract Act, 1872, S.39 – Repudiation of agreement to sell – Total consideration payable within one month from date of agreement and 18% interest payable on unpaid amount – Defendant declaring that she is not liable to pay interest at contract rate – Plaintiff accepting the repudiation, putting an end to the contract and seeking delivery of possession from defendant without rescinding the contract through a decree of competent Court – Not illegal. (Moparthi Sarojini Devi Vs Kavuru) 2003(1) Civil Court Cases 559 (A.P.)  

Contract Act, 1872, S.65 – Void contract – No assistance can be rendered to parties by Court in such contract. (Ramkrishna Ganpatrao Jogdand Vs Kondiram) AIR 2002 Bombay 148

Contract Act, 1872, S.73, Limitation Act, 1963, Art.55 – FCI invited tenders for hiring plinths for a period of three years – Plaintiff constructed plinths in accordance with instructions and specifications of FCI – FCI vacating plinths within one year of taking possession – Defendant is liable for damages – Suit filed within three years of vacating the premises is within time. (Food Corporation of India & Ors. Vs M/s.Babulal Agrawal) 2004(2) Civil Court Cases 104 (S.C.)

Contract Act, 1872, S.73 – Breach of contract –  One who holds out a promise, backs out, will have to compensate the party who acted bonafidely on the basis of the promise made. (Food Corporation of India & Ors. Vs M/s.Babulal Agrawal) 2004(2) Civil Court Cases 104 (S.C.)

Contract Act, 1872, S.73 – Breach of contract – Damages – Contract for lifting of ricebran – Tender notice not specifying variety of rice bran kept for disposal – It is for the defendant purchaser to verify and seek clarification as to variety of rice before quoting price in tender – Defendant cannot later on say that rice bran was not of type which was of his use and abruptly stop removing of further stock – No misrepresentation on part of plaintiff – Defendant liable to compensate loss caused to plaintiff. (Tamil Nadu Civil Supplies Corporation Limited Vs M/s Oswal Solvent Extraction (Madras) Unit) AIR 2002 Madras 35

Contract Act, 1872, S.73 – Contract – Breach – Other party not proving legal injury suffered due to breach of contract – Held, in absence of proof of actual loss, damages cannot be awarded – Party not entitled to forfeit security amount and also retention amount. (P.K.Abdulla Vs State of Kerala) AIR 2002 Kerala 108

Contract Act, 1872, S.74 – Contract – Breach – Damages – “Reasonable compensation” gives wide discretion to Court to decree damages, however, Court cannot allow damages exceeding amount previously agreed upon by the parties. (M/s Macbrite Engineers Vs Tamil Nadu Sugar Corporation Ltd.) AIR 2002 Madras 429

Contract Act, 1872, S.126 – Bank guarantee – Encashment – Injunction – Dispute between parties relating to trial run of machineries supplies by guarantor – No fraud or irretrievable injustice alleged – Injunction against encashment of bank guarantee cannot be granted. (Hagglunds Drives Ab Vs National Heavy Engineering Cooperative Ltd.) AIR 2002 Bombay 305

Contract Act, 1872, S.126 – Bank guarantee – Invocation – Bank must honour without demur and without reference to disputes between parties – Injunction cannot be granted unless contract is vitiated by fraud or likelihood of causing irretrievable injustice. (Hagglunds Drives AB Vs National Heavy Engineering Cooperative Ltd.) AIR 2002 Bombay 305

Contract Act, 1872, S.126 – Bank guarantee – Revocation – Negligence of Bank in taking necessary steps against debtor/guarantor for realisation of debt within validity period of guarantee – Held, it is liable to reimburse beneficiary – Court will not interfere on mere representation of dispute between beneficiary and debtor. (Rampur Engineering Co.ltd. Vs United Construction Co.) AIR 2002 Delhi 170

Contract Act, 1872, S.126 – Bank guarantee – Surety – Liability – Arises only if deed of guarantee is executed – Merely sending a letter that he takes guarantee of making payment against outstanding amount due to loanee – Cannot be considered as Deed of guarantee – Guarantor not liable for repayment. (Indian Overseas Bank Vs S.N.G.Castorete Pvt.Ltd.) AIR 2002 Delhi 309

Contract Act, 1872, S.126 – Contract of guarantee – Though three parties viz. principal debtor, creditor and surety are involved, agreement need not be simultaneous tripartite agreement – Where it is so, signature of principal debtor on deed of guarantee does not transform him into surety – Dismissal of creditor’s suit against principal debtor does not absolve surety of his liability under contract of guarantee. (Karnataka State Industrial Investment and Development Corporation Limited Vs State Bank of India & Anr.) 2004(3) Civil Court Cases 653 (Karnataka)

Contract Act, 1872, S.127 – Guarantor – Liability for past consideration – Cash credit facility availed by borrowed and enhanced by Bank from time to time – Guarantee furnished after cash credit facility finally enhanced – Deed only in usual format – No stipulation in deed that guarantee covered consideration paid in past – Bank permitted borrowed to withdraw loan amount in absence of any guarantee – Held, guarantor is not liable for repayment of loan. (Union Bank of India Vs Monin Enterprises) AIR 2002 Karnataka 270

Contract Act, 1872, S.128, Limitation Act, 1963, S.18 – Recovery suit by Bank – Revocation of surety – Revival letter/acknowledgment executed by principal debtor on authorisation of Guarantor – Guarantor cannot say that no fresh lease of limitation would run by revival letter/acknowledgment. (Ibrahim Abdul Latif Shaikh Vs Corporation Bank) AIR 2003 Karnataka 98

Contract Act, 1872, S.128 – Attachment of salary of surety – To recover decretal amount – Decree passed against principal debtor in 1992 – Bank itself delayed recovery – Held, Bank not to proceed against surety as long as principal debtor regularly pays up instalments. (Smt.H.P.Jalajakshi Vs Karnataka Bank) AIR 2003 Karnataka 280

Contract Act, 1872, S.128 – Guarantee deed – Suit for recovery of money on basis of guarantee deed – Can be filed against guarantors alone. (Indian Bank Vs The State of Tamil Nadu) AIR 2002 Madras 423 – 2002(4) RCR (Civil) 318

Contract Act, 1872, S.128 – Guarantor – Creditor can straightway proceed against guarantor without first proceeding against principal debtor. (Ram Bahadur Singh Vs Tehsildar, Bilsi) AIR 2002 Allahabad 344

Contract Act, 1872, S.128 – Principal debtor and guarantor – Decree against – Decree against guarantor exparte – Exparte decree is binding on guarantor as contested decree – Decree holder can proceed against guarantor since principal debtor failed to satisfy decree passed as back as in 1994 – Order of Executing Court that D.H. should first proceed against principal debtor not sustainable since liability of guarantor was not contingent, nor can guarantor be discharged for some slackness of D.H. (Bank of Rajasthan Ltd. Vs M/s.Krishan Printers & Ors.) 2004(2) Civil Court Cases 118 (Rajasthan)

Contract Act, 1872, S.128 – Surety – Liability – It is co-extensive with liability of principal debtor unless otherwise provided in contract – Creditor can sue surety without bringing action against principal debtor. (N.Narasimhaiah Vs Karnataka State Financial Corporation, Bangalore & Ors.) 2004(2) Civil Court Cases 158 (Karnataka)

Contract Act, 1872, Ss.128, 129 – Surety – Liability – Decree passed in 1992 – Considerable delay on part of creditor in taking proceedings for execution of decree – Creditor to confine recovery to the original decretal amount and not to be extended to interest that has accumulated on account of delay in taking proceedings for execution of decree. (Smt.H.P.Jalajakshi Vs Karnataka Bank Limited) 2003(2) Civil Court Cases 512 (Karnataka) 

Contract Act, 1872, Ss.128, 129 – Surety – Liability – Order of Executing Court for simultaneous recovery of decretal amount by deduction from salary of principal debtor and of surety – Order of recovery against surety cannot be given effect to as long as principal debtor pays up instalments – D.H. can proceed against surety if instalments become irrecoverable from principal debtor. (Smt.H.P.Jalajakshi Vs Karnataka Bank Limited) 2003(2) Civil Court Cases 512 (Karnataka) 

Contract Act, 1872, Ss.128, 141 – Surety – Liability – Liability of the principal debtor and the surety is joint and several and the creditor can either proceed against the principal debtor or the surety or both of them simultaneously – Right of creditor to recover money from the guarantors arises out of the terms of the deed of guarantee which are not in any way superseded or brought to naught merely because the creditor may not be able to recover money from the principal debtor. (Syndicate Bank Vs Narayana Iyer) 2004(2) Civil Court Cases 343 (Kerala)

Contract Act, 1872, S.129 – Guarantee – Continuing – Suit would be governed by Art.55 of Limitation Act – So long as the account is neither settled nor refused by guarantors to carry out the obligation, period of limitation would not start running – It would start running from the date of breach – Suit filed within three years from date of notice by bank invoking guarantees – Is within period of limitation. (Indian Bank Vs The State of Tamil Nadu) AIR 2002 Madras 423 – 2002(4) RCR (Civil) 318

Contract Act, 1872, Ss.135 and 137 – Suit for recovery against guarantor in terms of contract providing guarantor to be treated as principal debtor – It is not necessary for creditor to sue the principal debtor before instituting suit against guarantor. (Mukesh Gupta Vs Sicom Ltd., Mumabi) 2004(2) Civil Court Cases 539 (Bombay)

Contract Act, 1872, Ss.140, 141 – Loan – Default in repayment – Suit for recovery against guarantor – Plea of guarantor that plaintiff has not enforced its security and has also not called for additional security and failed to preserve securities – Guarantor had in terms of contract waived benefits that were available to him – Plea that surety stood discharged rejected. (Mukesh Gupta Vs Sicom Ltd., Mumabi) 2004(2) Civil Court Cases 539 (Bombay)

Contract Act, 1872, S.171 – Banker’s lien – FDR’s – Lien can arise over thing belonging to Customer and held as security by Bank – FDR is basically loan in hands of Bank – It therefore has no connection with loans in a different account – Amount in other account cannot be adjusted against claim in any suit. (Tilendra Nath Mahanta Vs United Bank of India) AIR 2002 Gauhati 1

Contract Act, 1872, Ss.171, 126 – Bank guarantee – Securities given for furnishing bank guarantee – All Bank guarantees returned and cancelled due to completion of work by Company – Fact that Director of the petitioner company as also the guarantor for transaction is also a Director in another company against which recovery proceedings were initiated in Debt Recovery Tribunal is not a justifiable ground to withhold securities in absence of any express clause in Contract entered into by petitioners and Bank. (Vijaya Bank Vs Naveen Mechanised Construction (P) Ltd.) AIR 2004 Karnataka 199

Contract Act, 1872, Ss.172, 176 – Loan agreement – Default in payment – Forcible possession – Financier is criminally liable. (Tarun Vs State of Haryana) AIR 2003 P&H 98

Contract Act, 1872, Ss.172, 73 – Vehicle – Repossession by financier without informing hirer the details of instalments due and payable nor any notice sent before repossession – Forcible repossession of vehicle by financier despite of the fact that all instalments of hire purchase agreement have been paid, is illegal – Award of Rs.50,000/ – by trial Court as damages – Order upheld. (Muthoot Leasing and Finance Ltd. Vs Vasudeva Publicity Service) AIR 2003 Delhi 372

Contract Act, 1872, S.176 – Bank loan for purchase of vehicle – None payment of instalments – Bank seized vehicle – Notice given by Bank to make payment of the entire amount within fortnight failing which vehicle seized will be auctioned – Vehicle neither released/returned nor auctioned by Bank for about 2 & 2-1/2 years – Bank filed suit for recovery of amount – Value of vehicle when it was seized was not less than the amount due and in case it was sold then, the entire amount due could have been recovered by the Bank – Negligence of officers of Bank in not selling vehicle at proper time – Suit rightly dismissed by trial Court. (State Bank of Bikaner & Jaipur Vs Ravi Kant Purohit & Ors.) 2005(1) Civil Court Cases 613 (Rajasthan)

Contract Act, 1872, S.186 – Agent – Authority – Can be express or implied – Authority is said to be express when it is given by words spoken or written and it is implied when it is to be inferred from the circumstances of the case – Law does not require ordinarily a contract of agency to be created in writing. (Kamlesh & Ors. Vs Jasbir Singh) 2004(2) Civil Court Cases 181 (P&H)

Contract Act, 1872, S.237 – Unauthorised acts of agent – Liability of principal – By executing power of attorney agent authorised to sell one property of principal – Agent tampered with deed to include therein another piece of property and on basis of such forged deed sold both properties – Bona fide purchaser for value had no knowledge of forgery – Principal is bound by sale of both properties and he is estopped from seeking annulment of sale of one property on ground that agent was not authorised to sell same – Deed of power of attorney is void between principal and agent and not between principal and third party – It is fault of principal to have chosen unscrupulous person as his power of attorney – If such agent plays fraud with principal and also against third party, equity should favour and remedy grievance of third party and not that of principal. (Clifford George Pinto Vs M.R.Shenava & Ors.) 2005(1) Civil Court Cases 704 (Karnataka)

Copyright Act, 1957, S.45, Copyright Rules, 1958, R.16(3) – Copyright – Registration – Rival claims with regard to subject matter of copyright – Order cannot be passed in favour of one party without hearing the other party. (Lal Babu Priyadarshi Vs M/s Badshah Industries) AIR 2002 Patna 33

Copyright Act, 1957, Ss.46 & 48 – Copyright – Registration is not necessary to claim a copyright. (Asian Paints (I) Ltd. Vs M/s.Jaikishan Paints & Allied Products) 2003(1) Civil Court Cases 119 (Bombay) 

Copyright Act, 1957, S.50 – Copyright Board is a Tribunal and quasi judicial authority and not “Civil Court” – Art.137 Limitation Act has no application to any petition or application made under S.50. (Devendra Somabhai Naik Vs M/s Accurate Transheet Pvt.Ltd.) AIR 2003 Gujarat 141

Copyright Act, 1957, Ss.55, 57, 41, 2(d), 2(m) – Copyright – Infringement – Defendant proceeded ex parte – Infringement establish by unrebutted evidence on record – Plaintiff is entitled to permanent injunction, damages and accounts. (Hawkins Cookers Ltd. Vs Magicook Appliances Co.) AIR 2003 Delhi 191

Court fee – Deficiency – Once the case stood finally disposed of, Court has no power to call for the alleged deficiency of Court fee to be made good. (Ravinder Kumar Rishi Vs Sushma Rishi) 2003(2) Civil Court Cases 612 (Delhi) 

Court fee – Malicious prosecution – Suit for damages – Court fee – For jurisdiction purposes suit valued at Rs.2 crores and for purposes of court fee suit valued at about Rs.2 lacs – Where Court is unable to say what the correct valuation of the relief is, it cannot require plaintiff to correct the valuation as has been made by him – In such case, Court has no other alternative than to accept plaintiff’s tentative valuation – In cases of compensation there is no objective standard available which can help to determine the amount to which the plaintiff should value the relief claimed by him. (Civil Procedure Code, 1908, O.7.R.11). (State of Punjab & Ors. Vs Jagdip Singh Chowhan ) 2005(2) Civil Court Cases 37 (P&H)

Court Fees Act, 1870, S.7 – Court fee – Allegations in plaint is decisive for computation of Court Fee – Question of settled possession or unsettled possession is irrelevant. (Dharamraj Singh Vs Vaidya Nath) AIR 2002 M.P. 194

Court Fees Act, 1870, S.7(4)(c) – Court fee – Valuation must be based on allegations in plaint alone and not on basis of pleas in written statement or final decision of suit on merits. (Shabbir Hussain Vs Naade Ali) AIR 2002 M.P. 160

Court Fees Act, 1870, S.7(4)(c) – Suit for declaration and permanent injunction filed by landlord – Relief of declaration and injunction sought to remove cloud cast on title of landlord by acts of tenants – Subject matter of suit not being value of suit property – Valuation of relief of declaration and injunction at Rs.600/- – Proper. (Shabbir Hussain Vs Naade Ali)  AIR 2002 M.P. 160

Court Fees Act, 1870, S.7(iv), Civil Procedure Code, 1908, O.7.R.11 – Court fee – Counter claim – Value of counter claim assessed at Rs.1,000/- and court fee of Rs.150/- paid – Plaintiff has not rendered the account of sale made by defendant to it – There are also no objective standards on the basis of which the assessment of the valuation of the suit for the purposes of Court fee could be made – Order rejecting prayer for dismissal of counter claim on ground of non payment of proper court fee, upheld. (M/s Chahal Trading Co. Vs Varinder Singh & Anr.) 2005(2) Civil Court Cases 316 (P&H)

Court Fees Act, 1870, S.7(iv)(c) – Sale by grand father – Suit for declaration that sale is illegal and void and was executed without consideration and legal necessity and is based on fraud etc. and the same is not binding on the plaintiff – By filing suit for declaration plaintiff was seeking cancellation of sale deed – Court fee payable is ad valorem on sale consideration mentioned in the sale deed. (Himanshu Vs Smt.Kailash Rani) 2005(1) Civil Court Cases 337 (P&H)

Court Fees Act, 1870, S.7(iv)(c) – Sale deed – Challenged in a suit for declaration by grandsons that alienation made by their grandfather being without legal necessity and without consideration and consequently relief of permanent injunction claimed – Only way to avoid the document would be to seek its cancellation and mere declaration cannot have an effect on the document – Plaintiff is required to pay ad valorem Court fee on the sale consideration mentioned in the sale deed. (Jagdish Vs Jagat Pal) 2003(2) Civil Court Cases 635 (P&H) 

Court Fees Act, 1870, S.7(iv)(c) – Suit for declaration of ownership of certain land and consequential relief of declaration of nullity of sale deed executed in respect of said land – If first relief is allowed then second relief will die its own death since there would not be any need to cancel sale deed to which plaintiff was not party – Court fee is payable relating to main relief only – Order requiring him to pay Court fees on valuation of sale-deed liable to be set aside. (Chhote Lal Vs Ansal Housing & Estate Pvt.Ltd.) AIR 2002 P&H 302

Court Fees Act, 1870, S.7(iv)(d) – Court Fee – Basis for valuation is value of relief sought and not market value of property. (Dharamraj Singh Vs Vaidya Nath) AIR 2002 M.P. 194

Court Fees Act, 1870, S.7(iv)(f) – Court fee – Suit for declaration, rendition of accounts and permanent injunction assessed for the purposes of Court fee and jurisdiction for Rs.195/-, Rs.200/- and Rs.130/- respectively on which Court fee of Rs.53/- was paid – Plaintiff however alleged that an amount of more than Rs.50 lacs may be found due on rendition of account – Held, it is only the wishful thinking of plaintiff that such an amount may be found due – There is no objective standard of valuation on the basis of which Court can arrive at a definite conclusion U.O.7.R.11(b) of CPC directing the plaintiff to affix the Court fee on that basis. (Civil Procedure Code, 1908, O.7.R.11). (Kuldip Vs Babit Nayar) 2004(2) Civil Court Cases 673 (P&H)

Court Fees Act, 1870, S.16, Legal Services Authorities Act, 1987, S.21, Civil Procedure Code, 1908, S.89(2)(b) – Court fee – Refund – Plaintiff is entitled to refund of full Court fee paid in a suit which was referred to Lok Adalat and settled between the parties – Court which has referred the matter shall issue a certificate to the plaintiff to receive the amount from the Collector. (Vasudevan Vs State of Kerala) 2004(2) Civil Court Cases 43 (Kerala)

Court Fees Act, 1870, S.21 – Agreement to sell – Suit for recovery of advance paid – Defendant claiming that he suffered losses and after adjusting advance claiming some more amount – Question whether Court fee is payable on the entire damages claimed or only on amount coming after adjusting advance –  Held, Court fee is payable on the entire amount of which defendant has suffered damages and not on amount coming after adjusting advance. (Sohan Lal & Anr. Vs Bhagwan Das & Anr.) 2004(2) Civil Court Cases 645 (Rajasthan)

Co-sharer – Long and continuous possession does not constitution adverse possession – Even non participation in the rent and profits of the land to a co-sharer does not amount to ouster so as to give title by adverse prescription – A co-sharer becomes a constructive trustee of other co-sharer and the right of appellant and/or his predecessors in interest would be deemed to be protected by trustee. (Md.Mohammad Ali (Dead) by Lrs. Vs Sri Jagadish Kalita & Ors.) 2003(2) Apex Court Judgments 473 (S.C.)

Co-sharer – Mutation – In the name of one co-sharer – Does not amount to ouster of other co-sharer unless there is a clear declaration denying the tile of other co-sharers. (Md.Mohammad Ali (Dead) by Lrs. Vs Sri Jagadish Kalita & Ors.) 2003(2) Apex Court Judgments 473 (S.C.)

Co-sharer – Non participation in the rent and profits of the land by a co-sharer does not amount to ouster so as to give title by prescription. (Md.Mohammad Ali (Dead) by Lrs. Vs Sri Jagadish Kalita & Ors.) 2003(2) Apex Court Judgments 473 (S.C.)

Co-owners – Mere non participation of income for a long period by itself will not amount to ouster between co-owners. (Krishnan Namboodiri Vs Unni Maya @ Uma Devi) 2004(2) Civil Court Cases 361 (Kerala)

Co-owners – Who is? – property purchased out of common fund in name of one of co-owners by consent of others – Person in whose name property purchased cannot set up exclusive title in himself – All persons who contributed fund for purchase of property would co-owners. (Smt.M.Printer Vs Marcel Martins) AIR 2002 Karnataka 191

Criminal & Civil proceedings – Criminal case cannot be stayed merely because civil suit was pending between the parties. (State of Punjab Vs Hira Singh) 2002(1) Criminal Court Cases 618 (P&H)

Criminal & Civil Proceedings – Nature and scope and standard of proof required in both matters is different and distinct – In civil proceedings the matter can be decided on the basis of probabilities, the criminal case has to be decided by adopting the standard of proof of “beyond reasonable doubt”. (Kamaladevi Agarwal Vs State of West Bengal) 2002(1) Criminal Court Cases 121 (S.C.)

Criminal & civil proceedings – Pendency of civil suit over same matter is not a ground to stay Criminal proceedings – Nature and scope of Civil and Criminal proceedings and the standard of proof required in both matters is different and distinct – In civil proceedings the matter can be decided on the basis of probabilities, the criminal case has to be decided by adopting the standard of proof of beyond reasonable doubt. (Ashwani Kumar Vs State of Punjab) 2002(3) Criminal Court Cases 222 (P&H) 

Criminal case – Stay during pendency of civil suit – Criminal cases have to be proceeded with in accordance with the procedure as prescribed under the Code of Criminal Procedure and the pendency of a civil action in a different court even though higher in status and authority, cannot be made a basis for quashing of the proceedings. (Kamaladevi Agarwal Vs State of West Bengal) 2002(1) Criminal Court Cases 121 (S.C.)

Criminal case – Stay during pendency of civil suit – Forgery and fraud – In such cases there is always some element of civil nature – Criminal case proceedings cannot be quashed only because the respondents had filed a civil suit with respect to the documents – In a criminal Court the allegations made in the complaint have to be established independently, notwithstanding the adjudication by a civil Court. (Kamaladevi Agarwal Vs State of West Bengal) 2002(1) Criminal Court Cases 121 (S.C.)

Criminal & Civil Proceedings – In case where penal consequences flow, civil nature of dispute cannot exclude the obligation of criminal law. (Raj Kumar Vs The State of Punjab) 2004(1) Criminal Court Cases 308 (P&H)

Custodial death – Compensation – Death of a person in jail due to poisoning – Deceased was able bodied 28 years old and maintaining a family which included his widow and two minor children and was the sole bread earner of the family – State directed to pay compensation of Rs.2.50 lacs – State to make an enquiry and recover the amount from officials found negligent. (Priti Thapar Vs State of Punjab & Ors.) 2004(4) Criminal Court Cases 186 (P&H)

Custodial death – Compensation – Death of accused in police custody due to injuries – Failure of police to prove how said injuries suffered by deceased – Inference is that police was responsible for causing injuries – Compensation of Rs.75,000/- to daughter and Rs.50,000/- each to two sons awarded – Fact that deceased was a criminal is no ground to deny compensation – It is open to State to recover the amount from guilty officers. (Fattuji Vs Superintendent of Police, Akola) 2002(3) Criminal Court Cases 400 (Bombay)

Custodial death – Death of accused while in police custody – Theory of suicide put up by police palpably false – Inquiry held by State C.I.D. not inspiring confidence – If guilty are not booked it would send wrong signals – Investigation by C.B.I. into circumstances of death in police custody ordered. (Shahnaz Begum wd/o Syed Mushtaq Vs State of Maharashtra & Ors.) 2004(1) Criminal Court Cases 150 (Bombay)

Custodial death – State of Maharashtra directed to pay wife of deceased compensation of Rs.2 lacs and Rs.5,000/- as costs of petition. (Shahnaz Begum wd/o Syed Mushtaq Vs State of Maharashtra & Ors.) 2004(1) Criminal Court Cases 150 (Bombay)

Custom Act, 1962, S.102 – Conviction u/s 135(1)(a) read with S.135(1)(ii) – Appellant not appraised of his right u/s 102 – Non compliance with mandatory provision of S.102 – Conviction and sentence quashed. (Yusuf Suleman Hattia Vs V.M.Doshi & Anr.) 2002(1) Criminal Court Cases 379 (Bom.)

Custom Act, 1962, S.102 – Provision is mandatory. (Yusuf Suleman Hattia Vs V.M.Doshi & Anr.) 2002(1) Criminal Court Cases 379 (Bom.)

Custom Act, 1962, S.108, Evidence Act, 1872, S.25, Narcotic Drugs and Psychotropic Substances Act, 1985, Ss.22, 29 – Confession – Recovery of contraband effected by custom officer – Statement of accused recorded by custom officer – Absolute bar of S.25 Evidence Act is not application to Custom Officer as he is a person other than a Police Officer – Court has just to see as to whether the inculpating portions were made voluntarily or whether they were made on account of duress, coercion or physical threat etc. (Mohinder Singh alias Minda Vs Inspector Customs) 2003(2) Criminal Court Cases 475 (P&H)

Custom Act, 1962, S.108, Evidence Act, 1872, S.30 – Statement recorded u/s 108 of Customs Act – Admissible in evidence but by virtue of S.30 Evidence Act it is not a substantive piece of evidence. (Tarlochan Singh Vs The Assistant commissioner, Customs) 2003(1) Criminal Court Cases 184 (P&H) 

Custom Act, 1962, S.108, Narcotic Drugs and Psychotropic Substances Act, 1985, S.18 – Seizure of contraband valuing Rs.8.75 crores – Statement of accused u/s 108 Customs Act that co-accused was financier of contraband – No other evidence – Co-accused acquitted. (Tarlochan Singh Vs The Assistant commissioner, Customs) 2003(1) Criminal Court Cases 184 (P&H)

Customs Act, 1952, Ss.135, 11, Import and Export (Control) Order No.17/55 – Smuggling of watches – Acquittal on the ground that sanction to prosecution was not proper and that  accused acquitted in two other cases with regard to same occurrence and that confessional statements were recorded without seeking permission of Jail authorities – Order of acquittal upheld. (The Assistant Collector Customs Vs Veda Singh & Anr.) 2004(2) Criminal Court Cases 152 (P&H)

Date of birth – Correction – Relevant considerations – Application for correction of date of birth of public servant – Court or Tribunal must be fully satisfied that there has been real injustice to person concerned and claim for correction of date of birth has been made in accordance with procedure prescribed and within time fixed by any rule or order. (State of Punjab & Ors. Vs S.C.Chadha) 2004(3) Civil Court Cases 272 (S.C.)

Date of Birth – Correction sought after two years of retirement – Certificate issued by Registrar of death and birth filed in support of application – Concurrent finding of fact that date of birth as recorded in certificate is correct – Cannot be assailed – As correction was sought after 2 years of retirement grant of back wages for entire period not proper – Employee entitled to back wages only from date of his application before Labour Court – Grant of interest also not proper as employee had not worked and had raised belated claim. (Cement Corpn of India Ltd. Vs Raghbir Singh)   AIR 2002 S.C. 509

Date of birth – Mentioned in plaint – It is only a tentative age – O.7.R.1 CPC does not mandate that the date of birth or the exact age is to be mentioned in the plaint by providing the completed years. (Bhami Bewa Vs Krushna Chandra Swain @ Gochhayat & Ors.) 2004(2) Civil Court Cases 543 (Orissa)

Deaf and dumb witness – Prayer for cross examination of such witness in presence of expert – Declined by trial Court – Permission given to cross examine the witness,  by himself putting questions in the language of signals, so as to elicit answers. (Nar Khan Vs State) 2002(1) Criminal Court Cases 438 (Raj.)

Decree – A fraudulent decree can neither create nor take away any rights. (Rajinder Singh Vs Joginder Singh) 2003(1) Civil Court Cases 395 (P&H) 

Deed – Construction – Intention of executor of a document is to be ascertained after considering all the words in their ordinary natural sense – Document is required to be read as a whole to ascertain the intention of the executant – It is also necessary to take into account the circumstances under which any particular words may have been used. (F.M.Devaru Ganapati Bhat Vs Prabhakar Ganapathi Bhat) 2004(2) Civil Court Cases 274 (S.C.)

Deed – Inconsistency in the body of document and schedule – The former prevails over the latter  – When intention of parties is clear, Schedule to the document should not be allowed to override the recital clause. (Narayanan Vs Kumaran & Ors.) 2004(1) Apex Court Judgments 366 (S.C.) : 2004(2) Civil Court Cases 315 (S.C.)

Deed – Nature of – Stray sentence at the end of the document – Cannot be read in isolation dissected from the earlier part of the document – To know the intention of the executant,  document be read as a whole. (Subbegowda (Dead) by Lrs. Vs Thimmegowda (Dead) by Lrs.) 2004(2) Apex Court Judgments 117 (S.C.) : 2004(3) Civil Court Cases 63 (S.C.)

Deed – Nature of – To be decided by finding out the intention of the executant by a comprehensive reading of the terms of the document itself, and then, by looking into – to the extent permissible – the prevailing circumstances which persuaded the author of the document to execute it – If the executant intended to transfer property then transferee is to be held to be vested with interest in the property – However when it is not possible to hold that intention was to transfer property within meaning of S.5 of Transfer of Property Act then document will be given effect to as it reads and as is explicit from what is set out in the deed itself. (Subbegowda (Dead) by Lrs. Vs Thimmegowda (Dead) by Lrs.) 2004(2) Apex Court Judgments 117 (S.C.) : 2004(3) Civil Court Cases 63 (S.C.)

Defamation – Defamatory statement – Defence available is that of absolute privilege and qualified privilege – Absolute privilege is available to Judge, Advocate and witnesses in the course of legal proceedings, members of Legislature in the course of their debates and also for communication between officers of the State in relation to State affairs – In the case of qualified privilege it is for the person charged with defamation to prove that he made the statement having reasonable grounds for making such statements – If the occasion is privileged and the statement is made honestly  and without malice the defendant is exempted from liability. (Radhakrishnan Nair Vs Chathunni) 2003(1) Civil Court Cases 537 (Kerala) 

Defamation – Defendant leader of a Union and member of governing council of hospital emphasised inaction of Government in not enquiring into the charge of misappropriation of Government fund but did not state that plaintiff had committed the misappropriation – Held, defendant is entitled to qualified privilege and thus not liable for damages. (Radhakrishnan Nair Vs Chathunni) 2003(1) Civil Court Cases 537 (Kerala) 

Delhi Rent Control Act, 1958, S.2(1), 14 & 50, Civil Procedure Code, 1908, S.47 – Heirs of statutory tenant for commercial purposes – Tenancy not heritable as such suit for possession decreed by Civil Court – Subsequently Supreme Court holding that statutory tenancy for commercial premises is heritable – Objection taken that decree passed by Civil Court is nullity – High Court holding that law laid down by Supreme Court is prospective in operation – Held, law laid down Supreme Court is prospective in operation only if so indicated – In absence of such a direction decree passed by Civil Court is a nullity. (Sarwan Kumar & Anr. Vs Madan Lal Aggarwal) 2003(1) Apex Court Judgments 282 (S.C.)

Delhi Rent Control Act, 1958, Ss.6-A, 8, Transfer of Property Act, 1882, S.106 – Suit premises let out to four brothers – Suit for eviction filed – Defence put up that tenancy was not joint but it was separate of four brothers – Lease deed clearly stipulates that it was executed in favour of all the brothers jointly and it is a composite one and not individual one – Held, tenancy in question is joint/composite one and it is not an individual lease of the demise premises and all the four brothers had to pay rent jointly. (Charanjit Lal Mehra & Ors. Vs Smt.Kamal Saroj Mahajan & Anr.) 2005(1) Apex Court Judgments 622 (S.C.)

Delhi Special Police Establishment Act, 1946, Ss.3, 5 & 6 – Entrustment of investigation by CBI – Consent given by State Govt. – Issue of Gazette Notification of consent not mandatory – Want of Gazette notification of consent does not render investigation void. (Dr.N.Nagamabikadevi Vs Central Bureau of Investigation) 2002(2) Criminal Court Cases 255 (Karnataka) 

Delhi Special Police Establishment Act, 1946, S.6-A – Constitutional validity of the provision – Matter referred to larger Bench. (Dr.Subramanian Swamy Vs Director, CBI & Ors.) 2005(1) Apex Court Judgments 462 (S.C.) : 2005(2) Criminal Court Cases 55 (S.C.)

Demarcation report – Without notice to the opposite party – Suit decreed by trial Court but reversed by Appellate Court on the ground that notice was not issued to the opposite party at the time of demarcation – Kanungo demarcated the land in pursuant to the rules and regulations applicable for carrying out demarcation as the measurement was carried out by identifying the pucca Burji and also the land falling in different villages – Report duly proved – No suggestion put to Kanungo in cross-examination that demarcation has not been carried out correctly and in accordance with the rules and regulations – Held, report is admissible in evidence – Decree of trial Court restored. (Jasmer Singh & Ors. Vs Sajjan Singh & Ors.) 2004(2) Civil Court Cases 07 (P&H)

Disobedience of temporary injunction order – Proceedings U.O.39.R.2-A CPC are quasi criminal in nature – In criminal proceedings provision O.7.R.11 CPC has no application –  If an application for disobeying the order of Court is filed, Court has to examine the allegations in the application, giving full opportunity to the other party of hearing and decide it as a criminal trial. (Civil Procedure Code, 1908, O.39.R.2-A, O.7.R.11). (Urban Improvement Trust, Jodhpur Vs Barkat Khan) 2003(2) Civil Court Cases 119 (Rajasthan) 

Displaced Persons (Compensation and Rehabilitation) Act, 1954, Ss.2 & 19, Displaced Persons (Compensation and Rehabilitation) Rules, 1955, R.102 – Surplus land – Allotment to displaced persons – Cancellation – Cannot be without determining the sale in terms of S.19 of the Act and Rule 102 and such reasons are required to be recorded. (Parveen Kumar & Anr. Vs State of Punjab) 2004(2) Civil Court Cases 286 (P&H)

Dissolution of Muslim Marriage Act, 1939, S.3 – Dissolution of marriage – Decree for dissolution of marriage obtained by wife under the provisions of the Act is a legal divorce under the Muslim Law – Entitled to reasonable and fair provision under S.3 of the Act – Divorced wife who was bound to observe iddat not observed iddat – Held, not entitled to maintenance for the period of iddat. (Ashraf Vs Jennathu Beevi) 2003(1) Civil Court Cases 72 (Kerala) 

Dissolution of Muslim Marriages Act, 1939, S.2(ii) – Dissolution of Marriage – Desertion and failure of husband to provide maintenance to wife for a period of two years – Entitles wife to a decree of dissolution of marriage. (Mehafoz Alam Dastagirsab Killedar Vs Shagufta) 2003(3) Civil Court Cases 311 (Karnataka) 

Divorce Act, 1869, S.10 – Cruelty – Divorce sought by wife – Husband and his family members not treating wife with love and affection and dignity – Wife subjected to torture on many occasions – Wife asked to handover her entire salary to her mother-in-law – Husband insisted that nomination in her provident fund account be changed forthwith in his favour – Husband asked her to buy a washing machine and also asker her father to buy a car – Husband maligned her in society by making frivolous and false accusations and even resorted to character assassination – Grant of decree for divorce in favour of wife is proper. (Mrs.Indu Bala Toppo Vs Francis Xavier Toppo) AIR 2002 Delhi 54

Divorce Act, 1869, S.10-A – Divorce by mutual consent – Petition for dissolution of marriage on ground of adultery pending – Circumstances established that marriage between parties had irretrievably broken – Financial claims and custody of child settled – Decree of divorce on mutual consent granted waiving statutory period of waiting for six months. (Sherly Thomas Vs Johny) AIR 2002 Kerala 280

Divorce Act, 1869, Ss.10, 15 and 18 – Dissolution of marriage – Petition filed by one spouse – Allegations denied by other spouse – Counter claim by other spouse for declaring marriage as null and void in proceedings for dissolution of marriage – Cannot be granted. (Mrs.Binu S.George Vs Sajan Ninan) AIR 2003 Kerala 93

Divorce Act, 1869, Ss.14, 11 – Divorce – Adultery – Ground of adultery included by way of amendment – Alleged adulterer not impleaded as co-respondent – Finding of adultery recorded and marriage dissolved – It violates mandatory provisions of S.11. (Ajant Bhuiya Vs Smt.Lalrinmawli Khiangte) AIR 2002 Gauhati 107

Divorce Act, 1869, S.32 – Restitution of conjugal rights – Relations between the spouses strained and reached to a point of “no return” – Parties living separately for more than 12 years – Wife also filed criminal complaint of harassment against husband – Wife not shown to have withdrawn from society of husband without any reason – In view of conduct of both parties and subsequent events like filing of criminal complaint and examination of both parties by police, restitution of conjugal rights cannot be ordered. (Sujatha Christiana Vs C.Thomas) AIR 2002 Madras 6

Divorce Act, 1869, Ss.41, 42 – Custody of child aged about 17 years living with employed mother since birth – Father not made any attempt to see child earlier – Mother and father living separately and their re-union reached at stage of impossibility – Child cannot be directed to live with father. (Sujatha Christiana Vs C.Thomas) AIR 2002 Madras 6

Divorce Act, 1869, S.100 – Divorce – Cruelty – Wife seeking divorce need not prove that husband was guilty of any other matrimonial offence such as adultery or desertion – Wife is entitled to divorce only on ground of cruelty. (Annie P.Mathews Vs Rajimon Abraham) AIR 2002 Karnataka 385

DNA TEST – No party to legal proceedings can be subjected to any such test against his or her Will – It infringes upon his or her right to privacy. (Mrs.Teeku Dutta Vs State) AIR 2004 Delhi 205

Doctrine of “Feeding the grant by estoppel” – Is in essence a principle of equity – It is statutorily recognised in India by S.43 of Transfer of Property Act. (Renu Devi Vs Mahendra Singh & Ors.) 2003(1) Apex Court Judgments 626 (S.C.)

Doctrine of “Feeding the grant by estoppel” – Meaning – Means that if a man, who has no title whatever to the property, grants it by a conveyance which in form carries the legal estate, and he subsequently acquires an interest sufficient to satisfy the grant, the estate instantly passes. (Renu Devi Vs Mahendra Singh & Ors.) 2003(1) Apex Court Judgments 626 (S.C.)

Document – Intended to be executed by plurality of persons but executed by one or some of them – Binding nature against those who execute it – Depends upon circumstances of the case – If the executants had executed the document with a view to bind themselves in spite of the other intending executants refused to join its execution it certainly can be enforced against the executants but if they execute the document on the specific understanding that it can be enforced against them only when the other persons mentioned therein also execute it when some of the intending executants do not join its execution, it cannot be enforced against the executants also. (Tirumalareddi Ramagopala Reddy & Ors. Vs Bhimavarapu Paravathi) 2004(2) Civil Court Cases 29 (A.P.)

Document – Nature of – Level of a document is not decisive – A true nature of transaction must be determined having regard to the intention of the parties as well as the circumstances attributing thereto as also the wordings used in the document in question. (Umabai & Anr. Vs Nilkanth Dhondiba Chavan (Dead) by Lrs. & Anr.) 2005(1) Apex Court Judgments 681 (S.C.) : 2005(2) Civil Court Cases 445 (S.C.)

Document – Nature of document disputed – When finding as to nature of documents is to affect the rights of either party either way then Court to allow parties to adduce evidence during trial,  after receiving the disputed document with an endorsement ‘subject to admissibility’, on all issues including the nature of the disputed document. (Evidence Act, 1872, S.136). (Idamakanti Ananthamma  Vs Idamakanti Ramanamma) 2003(2) Civil Court Cases 86 (A.P.) 

Dowry Prohibition (Maintenance of Lists of Presents to the Bride and Bridegroom) Rules, 1985, Rules 2 & 3, Dowry Prohibition Act, 1961, Ss.6, 9 & 10 – Implementation of provisions of Ss.3 and 4 of Dowry Prohibition Act – Central and State Govts. directed to take more effective steps to implement the provisions of Dowry Prohibition Act with particular reference to Ss.3 and 4 thereof and various rules framed thereunder – Dowry Prohibition Officers directed to be activated – Central Government directed to frames rules u/s 9(2)(b) of the Act if it has not already been framed – List as contemplated by Act and Rules to be strictly implemented – Central and State Govts. to consider making a rule for compelling males, seeking govt. employment (also already employed) to furnish information whether they had taken dowry and if taken, whether the same had been made over to wife as contemplated under Dowry Prohibition Act. (In Re: Enforcement and Implementation of Dowry Prohibition Act, 1961.) 2005(2) Criminal Court Cases 763 (S.C.)

Dowry Prohibition Act, 1961, S.2, Indian Penal Code, 1860, S.304-B – Demand of Rs.25,000/- for construction of house – Demand does not come within definition of dowry – Conviction set aside. (Saro Rana & Ors. Vs State of Jharkhand) 2005(1) Criminal Court Cases 881 (Jharkhand)

Dowry Prohibition Act, 1961, Ss.2, 3 and 4, Indian Penal Code, 1860, Ss.304-B and 498-A – Dowry – Agreement – Plea that there must be an agreement for dowry – Not necessary to have an agreement – Definition of dowry to be interpreted with other provisions including Section 3 of 1961 Act. (State of Andhra Pradesh Vs Raj Gopal Asawa & Anr.) 2004(2) Criminal Court Cases 526 (S.C.)

Dowry Prohibition Act, 1961, Ss.2 & 4 – Demand of dowry as consideration for marriage is an offence – Marriage includes proposed marriage also. (Reema Aggarwal Vs Anupam & Ors.) 2004(1) Criminal Court Cases 676 (S.C.)

Dowry Prohibition Act, 1961, Ss.2 & 4 – Dowry – Voluntary presents given at or before or after the marriage to the bride or the bridegroom of a traditional nature, which are given not as a consideration for marriage but out of love, affection or regard, do not fall within the mischief of the expression “dowry’ made punishable under the Dowry Act. (Reema Aggarwal Vs Anupam & Ors.) 2004(1) Criminal Court Cases 676 (S.C.)

Dowry Prohibition Act, 1961, S.3, Indian Penal Code, 1860, Ss.304-B, 201 – Dowry death – Death within 6 years of marriage – Cremation without intimation to parents of deceased – Conviction of husband – Evidence of father of deceased that deceased was being tortured on account of non fulfilment of demand for motor cycle – Conduct of petitioner in not informing father about death of his wife a strong circumstance – Conviction of appellant of charges called for no interference – Sentence however reduced to 7 years imprisonment from life imprisonment. (Rajeshwar Mishra Vs State of Bihar) 2002(3) Criminal Court Cases 493 (Patna) 

Dowry Prohibition Act, 1961, S.3, Indian Penal Code, 1860, Ss.304-B, 201 – Dowry death – Death within six years of marriage – Mother-in-law – Though PW7 in evidence stated that deceased was assaulted by this appellant with other accused including husband, but father of deceased did not speak of any cruelty committed by her – Evidence against appellant mother-in-law could not be said adequate to hold her guilty of charges. (Rajeshwar Mishra Vs State of Bihar) 2002(3) Criminal Court Cases 493 (Patna)

Dowry Prohibition Act, 1961, Ss.3, 4, Indian Penal Code, 1860, Ss.198A, 147 and 323 r/w S.149 – Dowry demand – Mal-treatment – Demand of scooter, colour T.V. and VCR – This fact not disclosed in a subsequent petition filed u/s 125 Cr.P.C. – Held, in absence of plausible explanation an inference can be drawn that since there was no demand of dowry items like colour T.V. etc. it was not so recited in the application for maintenance allowance. (State of U.P. Vs Sushil Kumar Jain) 2002(3) Criminal Court Cases 375 (Allahabad) 

Dowry Prohibition Act, 1961, Ss.3, 4, Indian Penal Code, 1860, Ss.198A, 147 and 323 r/w S.149 – Dowry demand – Mal-treatment – Place of occurrence – Alleged to be at Khatauli – However in a subsequent petition filed for reimbursement of price of gift items place of occurrence mentioned to be at Delhi – This clearly blasts the prosecution theory. (State of U.P. Vs Sushil Kumar Jain) 2002(3) Criminal Court Cases 375 (Allahabad) 

Dowry Prohibition Act, 1961, Ss.3, 4, Indian Penal Code, 1860, Ss.198A, 147 and 323 r/w S.149 – Dowry demand – Mal-treatment – Two letters showing that there were some other issues as bone of contention between wife and husband as well as his family – Dowry was manufactured – Husband and in-laws had suspicion upon chaste character of wife – Wife accused of being a bad character and even it was alleged that child in her womb was not that of her husband – It was on account of this allegation that she was even threatened of being divorced – Wife herself admitted that her husband had indicted her of unchaste character – It is thus evident that not dowry but suspected bad character of wife was the main cause of strained relationship. (State of U.P. Vs Sushil Kumar Jain) 2002(3) Criminal Court Cases 375 (Allahabad) 

Dowry Prohibition Act, 1961, Ss.3,4 – Dowry – Demand by father but dowry received by son – It amounts to demand by son also – Offence under Dowry Prohibition Act made out against both. (State of Karnataka Vs Moorthy) 2002(3) Criminal Court Cases 167 (Karnataka) 

Dowry Prohibition Act, 1961, S.4, Criminal Procedure Code, 1973, S.313, Indian Penal Code, 1860, Ss.498-A, 304-B, 300 – Several accused – Each of accused must be questioned separately about material substance against him – Requirement is mandatory and non compliance thereof vitiates trial and order of conviction – Where Magistrate had examined all three accused together and recorded their joint statement, conviction of only one of them, is not sustainable in law – Such order of conviction is to be set aside and matter remitted to trial Court for retrial from stage of recoding statement of accused. (Venkateshappa Vs State by Mulbagal Police) 2002(1) Criminal Court Cases 169 (Kant.)

Dowry Prohibition Act, 1961, S.4, Criminal Procedure Code, 1973, S.482, Indian Penal Code, 1860, S.498-A, 406 –  Married sister of husband – Allegation in FIR that on some occasions, she directed complainant to wash W.C. and that she used to abuse her and used to pass remarks such as “even if you have got much jewellery, you are our slave” and that she made wrong imputations to provoke her husband and would warn her that nobody could do anything to her family – Held, all these allegations, even if true, do not amount to harassment or unlawful demand for any property or valuable security – At the most this amounts to insulting and making derogatory remarks and behaving rudely – Bald allegations suggest the anxiety to rope in relations of husband – Proceedings against sister of husband quashed. (Ramesh & Ors. Vs State of Tamil Nadu) 2005(2) Criminal Court Cases 440 (S.C.)

Dowry Prohibition Act, 1961, S.4, Criminal Procedure Code, 1973, S.482, Indian Penal Code, 1860, S.498-A – Quashing of proceedings – Matrimonial dispute – Compromise – Parties amicably settled their all disputes  – No grievance against each other – Genuine settlement arrived at between parties who are none else than husband and wife – Criminal Proceedings pending against husband quashed. (Nasrudin & Ors. Vs State of Rajasthan & Ors.) 2005(2) Criminal Court Cases 470 (Rajasthan)

Dowry Prohibition Act, 1961, S.4, Indian Penal Code, 1860, S.201, 304-B, 498-A – Dowry death – Without waiting the arrival of the family members of the deceased dead body was cremated – Undue haste in which the dead body was consigned to flames indicates that accused caused disappearance of evidence of offence with the clear intention of screening himself from legal punishment – Accused rightly found guilty of offence u/s 201 IPC. (Bhagirathi Subudhi Vs State) 2002(2) Criminal Court Cases 60 (Ori.)

Dowry Prohibition Act, 1961, S.4, Indian Penal Code, 1860, S.304-B, 498-A – Dowry death – Death within seven years of marriage – Death caused otherwise than under normal circumstances – FIR lodged promptly on very day of death of deceased which excludes the possibility of concoction – Dead body consigned to flames even without waiting for the arrival of the family members of the deceased – Raises doubt about the bona fides of the accused – All the essentials of S.304-B IPC established – Held, order of conviction not to be interfered with. (Bhagirathi Subudhi Vs State) 2002(2) Criminal Court Cases 60 (Ori.)

Dowry Prohibition Act, 1961, S.4 – Dowry – Demand at the time of settlement of marriage – A deed of settlement relating to payment of dowry stated to be executed but not produced – In view of hostileness of witnesses against appellant and non production of document, it would not be safe to sustain conviction. (S.Tripat Patra & Ors. Vs State of Orissa)   2003(2) Criminal Court Cases 189 (Orissa) 

Dowry Prohibition Act, 1961, S.6(3)(b) and (3-A) – Evidence when discloses that certain amount or property changed hands at the time of marriage or thereafter which has to be construed as dowry – Court can direct accused to transfer same to either family of the deceased wife or to the legal heirs irrespective of whether case ends in conviction or not. (State  Vs Mallesha) 2002(3) Criminal Court Cases 522 (Karnataka) 

Dowry Prohibition Act, 1961, Ss.6, 9 & 10, Dowry Prohibition (Maintenance of Lists of Presents to the Bride and Bridegroom) Rules, 1985, Rules 2 & 3 – Implementation of provisions of Ss.3 and 4 of Dowry Prohibition Act – Central and State Govts. directed to take more effective steps to implement the provisions of Dowry Prohibition Act with particular reference to Ss.3 and 4 thereof and various rules framed thereunder – Dowry Prohibition Officers directed to be activated – Central Government directed to frames rules u/s 9(2)(b) of the Act if it has not already been framed – List as contemplated by Act and Rules to be strictly implemented – Central and State Govts. to consider making a rule for compelling males, seeking govt. employment (also already employed) to furnish information whether they had taken dowry and if taken, whether the same had been made over to wife as contemplated under Dowry Prohibition Act. (In Re: Enforcement and Implementation of Dowry Prohibition Act, 1961.) 2005(2) Criminal Court Cases 763 (S.C.)

Drugs and Cosmetics Act, 1940, Ss.16(1)(a), 18(a)(i) and S.27(d), Cr.P.C. : S.179 – Adulterated drug – Manufacturer can be prosecuted at the place of sale of adulterated drug irrespective of whether seller of drug has been made party or not. (Ashok Sureshchand Bal & Ors. Vs State of Maharashtra) 2002(1) Criminal Court Cases 209 (Bom.)

Drugs and Cosmetics Act, 1940, S.17, Criminal Procedure Code, 1973, S.438 – FIR under S.17 of Drugs and Cosmetics Act – Offence u/s 420 IPC added subsequently – For contravention of provisions of Drugs Act complaint lies before Magistrate and no FIR is to be registered – Anticipatory bail allowed to accused. (Satish Chand Vs State of Haryana) 2004(1) Criminal Court Cases 443 (P&H)

Drugs and Cosmetics Act, 1940, Ss.17, 17A, 17B, 18 & 27 – Contravention of provisions of Act – Complaint by Drug Inspector lies with Magistrate and no FIR is to be registered. (Satish Chand Vs State of Haryana) 2004(1) Criminal Court Cases 443 (P&H)

Drugs and Cosmetics Act, 1940, S.18 – Contravention of the provisions of the Act – Drug Inspector to file complaint with the Magistrate – FIR cannot be lodged. (Chandhan Singh Vs State of Haryana) 2004(2) Criminal Court Cases 573 (P&H)

Drugs and Cosmetics Act, 1940, Ss.18, 27 and Drugs and Cosmetics Rules, 1945, R.65 – Failure to maintain purchase records and drugs sold in excess of purchase records – Prosecution of person acting on behalf of licensee – Plea that it is the duty of the licensee to maintain records – Held, a person acting on behalf of licensee is not absolved of his criminal liability if he sells drugs in contravention of the provisions of the Act and Rules and it is he who is responsible for such contravention and can be proceeded against. (Kishanchand Lilaram Bajaj Vs State of Maharashtra) 2002(3) Criminal Court Cases 9 (Bombay) 

Drugs and Cosmetics Act, 1940, Ss.18(a)(1) and 18(B) r/w Ss.16(1)(A), 17(C), 17(AF), 27(B)(1), 28(A) and 27(D), Criminal Procedure Code, 1973, S.468 – Sample taken in 1993 and complaint filed in 1998 – Maximum sentence provided for the offence 3 years – Complaint barred by limitation – There was not even a whisper as to the cause of delay – Delay in prosecution has to be condoned prior to taking cognizance of the offence – Plea of limitation can be raised at any time during the trial – As complaint is barred by limitation as such proceedings quashed. (Macleod Pharmaceutical Pvt. Ltd. & Ors. Vs State of Rajasthan) 2005(2) Criminal Court Cases 242 (Rajasthan)

Drugs and Cosmetics Act, 1940, Ss.18(a)(i), 34, 27(d), Drugs and Cosmetics Rules, 1945, R.76 – Drug/injection – Sub standard quality – Allegation that sample contained suspended matter – It was not the prosecution case that the drug or injection contained any foreign material – Development of particles may be due to non observance of standard of storage in a cool place – No prima facie case for prosecution of manufacturer – Proceedings quashed. (Narendrakumar Mangilal Dani & Ors. Vs State of Maharashtra & Anr.) 2002(1) Criminal Court Cases 138 (Bom.)

Drugs and Cosmetics Act, 1940, Ss.18(a)(i), 34 – Drug/injection – Sub standard quality – Partners of firm – No averment in the complaint that partners were incharge of the business of the firm – Held, prosecution against them not sustainable. (Narendrakumar Mangilal Dani & Ors. Vs State of Maharashtra & Anr.) 2002(1) Criminal Court Cases 138 (Bom.)

Drugs and Cosmetics Act, 1940, Ss.18(c) and 27(b)(ii) – Mere possession of drugs without evidence to show that they were stocked for sale or distribution may not attract the relevant penal Section under Drugs and Cosmetics Act. (State rep. by Drug Inspector Vs Dr.Anuradha Ramnath) 2003(1) Criminal Court Cases 449 (Madras)

Drugs and Cosmetics Act, 1940, S.25(3) – Drug – Sample found to be sub-standard by Govt. Analyst – Second sample not sent to Central Drugs Laboratory for test inspite of request to this effect by accused – Complaint filed when shelf life of drug had expired – Complaint quashed – Held, if the accused is summoned when shelf life of drug had already expired, then the complaint is not maintainable as the accused had lost his valuable right of re-analysis of the sample. (Anurag Arora Vs State of Haryana) 2002(2) Criminal Court Cases 515 (P&H)

Drugs and Cosmetics Act, 1940, S.25(4) – Adulterated drug – Sample reached Central Drugs Laboratory after expiry date of sample – Valuable right vested in accused u/s 25(4) lost – Continuation of the proceedings in the circumstances against the petitioners would amount to abuse of process of law and as such the proceedings quashed. (Ashok Sureshchand Bal & Ors. Vs State of Maharashtra) 2002(1) Criminal Court Cases 209 (Bom.)

Drugs and Cosmetics Act, 1940, S.25(4) – Report signed by or under the authority of the Director of the Central Drugs Laboratory is conclusive evidence of the facts stated therein – Such report has an edge over the report of the Public Analyst of the State. (Plethico Pharmaceuticals Vs State of Maharashtra) 2003(1) Criminal Court Cases 528 (Bombay) 

Drugs and Cosmetics Act, 1940, S.26, Indian Medical Council Act, 1956, S.15 – Accused practising as Electro Homeopathy System of Medicines after getting himself registered as Electro Homeopath with National Electro Homeopathy Board of India – Accused not practising in modern system of medicines – Criminal proceedings against accused for not getting Registration Certificate under Indian Medical Council Act quashed. (Dr.Paramjit Singh Vs State of Punjab & Anr.) 2004(4) Criminal Court Cases 775 (P&H)

Drugs and Cosmetics Act, 1940, S.27(b)(ii), Criminal Procedure Code, 1973, S.100(4) – Raid by Drug Inspector – Recovery of drugs which accused was not authorised to possess – Independent witnesses not joined – Drug Inspector joined two doctors from his own department – They cannot be said to be independent witnesses – Conviction set aside. (Mukhtiar Singh Vs State) 2003(3) Criminal Court Cases 220 (P&H) 

Drugs and Cosmetics Act, 1940, Ss.27(B), (D), 28(A), 34 – Sleeping partner not in any way actively participating in the conduct of business – No allegation to indicate that at the relevant time sleeping partner was in charge of and responsible to the firm for the conduct of its business – Proceedings against him quashed. (Jagan Lal Vs State of Rajasthan) 2003(2) Criminal Court Cases 389 (Rajasthan) 

Drugs and Cosmetics Act, 1940, Ss.27(B), (D), 28(A), 34 – Sleeping partners – Proceedings ordered to be dropped – No allegation to prima facie indicate that petitioners, partner of firm, were incharge of and responsible to firm for conduct of its business – Both persons ladies and living abroad at relevant time – Proceedings against petitioner lady partners ordered to be dropped. (Smt.Harshila Lodha & Anr. Vs State of Rajasthan) 2003(1) Criminal Court Cases 522 (Rajasthan)

Drugs and Cosmetics Act, 1940, S.32 – Charge against Directors of a Company – Simply because a person is a director of the company he does not become liable for the offence committed by the company – It must be shown that he is incharge of and responsible to the company for the conduct of its business. (Aravind Babu Vs State of Kerala) 2002(1) Criminal Court Cases 375 (Kerala)

Drugs and Cosmetics Act, 1940, Ss.34 and 18 – Director – It must be specifically averred in complaint that accused in his capacity as director, manager, secretary etc., was in charge of and responsible to company for conduct of its business at time when offence was committed and that commission of offence was with consent or connivance of, or attributable to neglect on part of accused – In absence of such specific averment accused cannot be made to undergo agony of criminal trial and called upon to prove fact which is not even alleged – Merely stating in complaint that accused is director is not sufficient to fix his vicarious liability – Proceedings against Director quashed. (Sanjay G.Revankar Vs State by Drug Inspector) 2002(2) Criminal Court Cases 637 (Karnataka) 

Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, Drugs Act, 1940, S.21 – Notification of Andhra Pradesh Government dated 16.9.1963 empowering all Drugs Inspectors appointed u/s 21 of the Drugs Act to exercise the power u/s 8 of the Central Act of 1954 for purpose mentioned therein is not confined to Telangana area of the State. (Bharat Damodar Kale & Anr. Vs State of A.P.) 2004(1) Criminal Court Cases 186 (S.C.) : 2003(2) Apex Court Judgments 705 (S.C.)

Drugs & Cosmetics Act, 1940, Ss.18(c), 27, 28-A and 36-A – Offence under Drugs Act – CJM took cognizance – No power has been conferred upon CJM by State Govt. to try the offence – Order of CJM taking cognizance quashed though subsequent to taking cognizance CJM has been conferred the power. (Munish Kumar Vs State of Haryana) 2004(3) Criminal Court Cases 463 (P&H)

Easements Act, 1882, Ss.12, 19 – Passage – Easement – Created by ‘express grant’ by owner in favour of transferee – Transferee became dominant over plot of land sold to him and passage of land over which easement was imposed became servient tenement – As per terms of sale deed creator of easement continued to be owner of passage of land – Transferee would have Nistari right of way on that land – Transferee thus acquired right of passage on land in dispute for beneficial enjoyment of plot purchased by him as per S.12 of Act – Plaintiffs are subsequent transferees of that plot – Therefore with transfer of dominant heritage, easement on servient tenement also stood transferred to plaintiff by virtue of S.19 of Act. (Dr.Dhananjan Bisen Vs Devi Bai) AIR 2002 M.P. 79

Easements Act, 1882, S.13 – Easement of necessity – Alternative passage – Easementary right of necessity not available if alternative passage is inconvenient or bit longer. (Rama Vs Megha) AIR 2002 Rajasthan 309

Easements Act, 1882, S.13 – Easement of necessity – Alternative pathway available – Claim for easement cannot be made on ground that alternative pathway was inconvenient. (Ponnaiyan Vs Karuppakkal) AIR 2002 Madras 443

Easements Act, 1882, S.13 – Easement of necessity – Right to light and air – Houses originally belonged to a family – Present parties purchased the houses – Right to receive air and light claimed falls under Section 13 of the Act as an easement of necessity and not under S.15 which deals with acquisition of easement by prescription – Suit dismissed by Courts below holding that right of easement cannot be claimed on the ground that the wall is jointly owned inspite of finding that by proceeding with further construction, plaintiff’s house would become dark – Aspect of easement of necessity u/s 13 neither adverted to nor considered by Courts below – Matter remitted to court of first instance to decide matter afresh after affording opportunity to both parties to adduce further evidence, if any. (Gopisetti Reddy & Anr. Vs Makam V.Balaramaiah Gupta & Anr.) 2004(2) Civil Court Cases 642 (A.P.)

Easements Act, 1882, S.13 – Right of way – Plaintiff purchased part of property of defendant – Right to approach that property was through portion of land occupied by tenant of defendant – Defendant in lieu of that land gifted big piece of land to tenant – Denial of right to plaintiff and mandatory injunction on ground that there was no privity of contract between him and tenant – Improper. (Prithvi Singh Vs Banshi Lal) AIR 2004 Rajasthan 100

Easements Act, 1882, Ss.13, 15, Specific Relief Act, 1963, S.38 – Suit for permanent injunction restraining defendant from causing any obstruction in user of right of way – Agricultural land partitioned between real brothers – In partition deed itself the way granted to them for cultivation of agricultural lands allotted to their shares – Oral evidence in direct conflict with the specific grant mentioned in the partition deed – Plaintiff did not adduce satisfactory evidence to show that he had acquired easement either by prescription or by way of necessity – Finding of fact recorded to that effect by Courts below, justified. (Tanba s/o Nusaji Mahajan Vs Pandhari s/o Nusaji Mahajan) 2004(3) Civil Court Cases 569 (Bombay)

Easements Act, 1882, S.15, Limitation Act, 1963, Art.65 – Easementary right of passage – Limitation – Strip of land, a joint family property, kept joint by ancestors of the parties for the purpose of use of the same as a passage – It is Art.65 Limitation Act which applies and not S.15 of the Easement Act. (Brajaraj Mishra & Ors. Vs Ananda Chandra Mishra) 2003(1) Civil Court Cases 91 (Orissa) 

Easements Act, 1882, S.15 – Easement by prescription – Filed of defendant situated towards southern side of plaintiffs field – There was stream on southern side of plaintiff’s field and plaintiff having access to his agricultural land only through disputed way – User of way for more than 30 to 40 years – User open, peaceful and without any obstruction for that period – Plaintiff can be said to have acquired right of easement by prescription. (Jivanlal Vs Krishnarao) AIR 2004 Bombay 89

Easements Act, 1882, S.15 – Easement of way by prescription – Absence of pleading – Oral evidence adduced to prove the easement by prescription to be ignored. (Tanba s/o Nusaji Mahajan Vs Pandhari s/o Nusaji Mahajan) 2004(3) Civil Court Cases 569 (Bombay)

Easements Act, 1882, S.15 – Prescriptive right over a specific portion of suit property – As the portion was used by plaintiff and his predecessors as a way since time immemorial as such decree passed by trial Court – Set aside by appellate Court assuming that said portion was part of public road in absence of such claim by plaintiff – No other villager raising objection to use by plaintiff on ground that it was a public road – In oral evidence defendant himself admitting the usage of portion by plaintiff – Decree of trial Court restored. (Shekarappa Veerappa Harayabal Vs Mahammadsab Maliksab Nadaf) AIR 2002 Karnataka 250

Easements Act, 1882, S.52 – Lease or licence – Depends upon intention of parties. (K.P.Sadanandan Nair Vs M.Vimala) AIR 2004 Kerala 278

Easements Act, 1882, Ss.52, 59 & 62 – License – When licensee dies, license also dies with him and thereafter his legal representatives hold as mere trespassers – Licensee by enjoying license for any length of time, cannot acquire right adverse to that of licensor – Exclusive possession of licensee does not militate against concept of licence if the circumstances and conduct of parties show that intention was to create only licence and negative any intention to create tenancy – Thus, owner of house permitting his business partner to reside in house does not amount to transfer of ownership of house or creation of tenancy in respect of house, but amounts only to grant of licence – On death of licensor and licensee, legal heirs of licensor are entitled to get vacant possession of house from legal representatives of licensee.  (M.K.Venugopal Vs Aswathamma) 2005(1) Civil Court Cases 394 (Karnataka)

Easements Act, 1882, S.60 – Licence – Raising of ‘Pakka’ construction – Does not make license irrevocable in absence of any condition in the license that the licensee is permitted to raise ‘Pakka’ construction – It is necessary to plead and prove that construction was carried out in pursuance of the agreement, in order to make a licence irrevocable. (Ganpat Rao Vs Ashok Rao & Ors.) 2005(1) Civil Court Cases 326 (M.P.)

Easements Act, 1882, S.60 – Licensee – Eviction order passed – Not invalid – Licence can be terminated at any time. (Mawana Stand Vyapar Samiti & Anr. Vs State of U.P. & Anr.) 2005(1) Civil Court Cases 69 (Allahabad)

Easements Act, 1882, S.60 – Licence to run canteen and PCO in Govt. hospital – Licence not coupled with transfer of interest in property nor Licensee was permitted to execute work of permanent character by licensor – License can be revoked by grantor at any time and opportunity of hearing to licensee before cancelling licence – Not necessary. (Purnima Vs Chief Medical Supdt.) AIR 2003 Allahabad 57

East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, Ss.19 & 20 – Delay and laches – Claim filed after 11 years of completion of consolidation proceedings – Must fail on ground of delay and laches – Application cannot be entertained after such a long delay. (Mange Ram Vs Financial Commissioner & Ors.) 2003(1) Apex Court Judgments 518 (S.C.)

East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, Ss.19 & 20 – Encumbrance – Trespasser – Cannot be treated as an encumbrancer as envisaged in the scheme of the Act – Encumbrance has to be read in the sense of a legal encumbrance like a lease or a mortgage and a mere trespasser cannot be elevated to the position of an encumbrancer in the context of the statute. (Mange Ram Vs Financial Commissioner & Ors.) 2003(1) Apex Court Judgments 518 (S.C.)

East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, S.42 – Consolidation – Deficiency in measuring land – Compensation by allotment of equal area sought – Held, since registered sale deed was common, petitioner is entitled to relief – Directions issued to respondents to go into matter again and compensate petitioner. (Surat Singh Vs Additional Director) 2003(3) Civil Court Cases 282 (P&H) 

East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, Ss.42, 19 and 20 – Allotment of Beshi Phirni as a result of inclusion of land within the extended phirni as a result of amended Scheme of consolidation – At the time of commencement of operation of consolidation respondent was right holder of land – Land included in phirni (Laldora) when original scheme of consolidation was brought into force – In lieu of field he was allotted three times area of agricultural land as per scheme – Respondent in the year 1988 sold a portion of his land to respondent 3 – Consolidation Officer allotted equal area of land to respondent 3 in lieu of his land which was included in Laldora consequent to amendment of Scheme of consolidation – Respondent 3 claiming allotment of three time of value of his land – Appellants ceased to be bhumidars of the field from the day they got the land  which they accepted in lieu of the land – Therefore respondent 4 became the owner of the land as it was allotted to him in lieu of inclusion of his land in Laldora – Held, appellants are not entitled to the land only on the ground that they were original bhumidars. (Siri Ram Batra & Ors. Vs Financial Commissioner, Delhi & Ors.) 2005(1) Civil Court Cases 425 (S.C.) : 2005(1) Apex Court Judgments 370 (S.C.)

Education – Police can enter college campus without anybody’s permission or request to prevent criminal activities – Students who indulge in criminal activities are not entitled to concessions and they are liable to be treated as offenders. (Vijayakumar Vs State of Kerala) 2004(3) Civil Court Cases 124 (Kerala)

Electricity – Auction purchaser taking fresh electric connection – He is not liable to clear the arrears incurred by previous owner. (Ahmedabad Electricity Co.Ltd. Vs Gujarat Inns. Pvt. Ltd. & Ors.) 2004(1) Apex Court Judgments 515 (S.C.) : 2004(2) Civil Court Cases 98 (S.C.)

Electricity – Concessional tariff for five years to new industrial unit starting commercial production before 31.12.1996 – Failure of Electricity Board to provide power connection to unit before 31.12.1996 thereby depriving unit of benefit under policy – Held, unit is entitled to concession for three years, on equitable grounds. (Hitech Electrothermics & Hydropower Limited Vs State of Kerala & Ors.) 2003(2) Apex Court Judgments 172 (S.C.)

Electricity – Demand charges – Reduction – Power cut – No question as to proportionate reduction in absence of any clause in agreement providing therefor. (Industrial Rubber Products Vs Karnataka Electricity Board) AIR 2002 Karnataka 335

Electricity – Dispute – Jurisdiction – Civil Court jurisdiction is not barred by scheme framed by Punjab State Electricity Board by composition of Dispute Settlement Committee – Jurisdiction of Civil Court can only be barred by a statute and not rules framed by Board – Provisions of S.49 and 79(j) of Electricity (Supply) Act, 1948, do not authorise the Board to create alternative dispute settlement mechanism but deals with the provisions for sale of electricity by Board on agreed terms and conditions – Terms and conditions of the supply cannot and does not include the mechanism for settling the dispute between the consumer and the Board – The implied power to frame regulations so as to oust the jurisdiction of the civil Court is not available under section 49 of the Act. (Electricity (Supply) Act, 1948, Ss.49, 79(j), and Scheme framed by Punjab State Electricity Board contained in Sales Regulations For Supply of Electrical Energy to Consumers (Updated to 31.03.1999), Regulations 142 to 142.5) (M/s Ranbaxy Laboratories Ltd. Vs Punjab State Electricity Board) 2004(2) Civil Court Cases 592 (P&H)

Electricity – Disputed sum – Non deposit – It is incumbent on consumer to make a deposit as per demand – Plea that his liability to pay amount will arise only after adjudication by Electrical Inspector – Not tenable – Disconnection of electric meter by Board for non deposit of amount – Not improper. (The Assistant Executive Engineer Vs Milind Dilli) AIR 2002 Karnataka 120

Electricity – Dues – Delay – Interest – When there is delay in payment of electricity dues interest should always be directed to be paid – In the instant case interest allowed at the rate of 12% per annum from the date when amount due was payable to the date of payment. (Anshuman Singh Vs State of U.P. & Ors.) 2004(3) Civil Court Cases 19 (Allahabad)

Electricity – Dues – Recovery of – Death of consumer – Dues can be recovered from the estate of consumer – If any part of estate is inherited by son then dues can be recovered from that part of property which is inherited. (Vijai Kumar & Ors. Vs State of U.P. & Ors.) 2004(2) Civil Court Cases 564 (Allahabad)

Electricity – Dues of erstwhile consumer – Not a charge on property – Cannot be recovered from subsequent purchaser. (Subhendu Banerjee Vs The CESC Ltd.) AIR 2002 Calcutta 242

Electricity – Dues outstanding against tenant – Application by landlord for new electric connection – Denied by Board – Order challenged by present tenant – Held, denial of electric supply by Board – Proper. (Jaikishan Agarwal Vs Bihar State Electricity Board) AIR 2002 Jharkhand 38

Electricity – Maximum demand and minimum charges – Are levied for different purposes – The former is charged to defray capital costs and latter to meet running charges. (Nipha Steels Ltd. & Anr. Vs West Bengal State Electricity Board & Ors.) 2003(2) Apex Court Judgments 190 (S.C.)

Electricity – Maximum demand charges notwithstanding disruption and irregular supply of electricity – There is no scope for any remission in case of interrupted or irregular supply in view of purpose for which maximum demand is levied. (Nipha Steels Ltd. & Anr. Vs West Bengal State Electricity Board & Ors.) 2003(2) Apex Court Judgments 190 (S.C.)

Electricity – Meter – Burnt down – Billing to be on basis of average consumption of previous or corresponding three months whichever is highest. (M/s Shivam Re-rolling Mills Pvt.Ltd. Vs Bihar State Electricity Board) AIR 2002 Jharkhand 123

Electricity – Meter burnt – Billing to be made on average consumption of previous or corresponding three months whichever is high – Billing on basis of monthly minimum guarantee charges on ground that contract demand exceeded 500 KVA and as such it was not entitled to get benefit under Industrial Policy – Is erroneous. (M/s Shivam Re-rolling Mills Pvt.Ltd. Vs Bihar State Electricity Board & Ors.) 2004(2) Civil Court Cases 373 (Jharkhand)

Electricity – Outstanding dues of previous consumer – Defaulting unit purchased from Industrial Development Corporation – Payment of outstanding dues of defaulting unit is not required for release of new electric connection. (M/s Swan Industries Ltd. Vs Ajmer Vidyut Vitran Nigam Ltd.) 2005(1) Civil Court Cases 733 (Rajasthan)

Electricity – Own generation set – Permission to install – Power to grant or not to grant such permission vests in Board and when Board decided either way they must act reasonably – Imposition of condition by Board that due to such an installation petitioner company shall forfeit their right to seek reduction of contract demand on whatsoever grounds/demands – Arbitrary and liable to be quashed. (Associated Cement Co. Ltd. Vs Bihar State Electricity Board) AIR 2003 Jharkhand 1

Electricity – Registered consumer allowing third party to consume electricity from its connection  – Default in payment – It is the registered consumer who is liable to make the payment – Board has no concern with any dispute between the registered consumer and the third party Board cannot initiate action against third party for the reason that Board has no privity of contract between the two. (M/s Inndev Engineers (India) P.ltd. Vs Delhi Vidyut Board & Ors.) AIR 2002 Delhi 478

Electricity – Sick company – Non payment of dues – Reference for rehabilitation pending before Board of Industrial and Financial Reconstruction (BIFR) – Notice for disconnection of supply – Letter issued by Board to reconnect supply of company on payment of amount in instalment, till sanction of rehabilitation scheme by BIFR – Not concluded contract between sick company and Board – Injunction restraining Board from levy of bill after decision by BIFR cannot be granted. (Civil Procedure Code, 1908, O.39.Rr.1,2). (Mardia Chemicals Ltd. Vs Gujarat Electricity Board) AIR 2002 Gujarat 404

Electricity – Subsequent purchaser – Cannot be asked to clear off outstanding dues in respect of erstwhile consumer – However subsequent purchaser enjoying supply form subsisting connection of one erstwhile downer after purchase – Subsequent purchaser is liable to make payment of arrears in name of said consumer from date of purchase. (Elegant Fashion Accessories Pvt.Ltd. Vs Calcutta Electricity Supply Corporation Ltd.) AIR 2002 Calcutta 278

Electricity – Supply of power – Liability of previously contracting party – Sale of industrial unit in auction by State Financial Corporation – Previous owner in arrears of electricity charges – Not a ground for refusal of power supply to auction purchaser. (Sunil Rajgarhia Vs Orissa State Financial Corporation & Anr.) 2003(3) Civil Court Cases 474 (Orissa) 

Electricity – Tariff – Advocates’s office – Inclusion in non-domestic service – Practising Advocate or lawyer by his legal profession cannot be treated as carrying on commercial activity irrespective of nature of possession or location of his chamber or office. (Sajjan Raj Surana Vs Jaipur Vidyut Nigam Ltd.) AIR 2002 Rajasthan 109

Electricity – Theft – 25% provisional payment assessed by Board – Metering apparatus room was under lock and key of Board – Role of some of employees of Board was suspicious in view of alleged inspection of room by them without giving notice – To sustain charge, Board will have to establish that company’s employees had access to metering apparatus room and they tampered with seal – Till determination of all factual questions in final assessment proceedings, company cannot be compelled to pay amount demanded in provisional assessment notice. (Kumar Plastics P. Ltd. Vs West Bengal State Electricity Board) AIR 2004 Calcutta 42

Electricity Act, 1910, Schedule, Clause VI(3) – Dispute that can be referred to Electrical Inspector under clause VI(3) of Schedule do not include dispute regarding amount of money payable by consumer to licensee during he period the mater had either stopped recording consumption or had been malfunctioning and consequently was not recording consumption accurately. (Municipal Corporation of Brihan Mumbai Vs Hotel Hill Top International, Mumbai & Ors.) 2004(2) Civil Court Cases 614 (Bombay)

Electricity Act, 1910, S.21(2) and Conditions and Miscellaneous Charges for Supply of Electrical Energy framed by M.C., Brihan Mumbai, Clause 18(b) – Meter stopped working of malfunctioning – Recover of dues for such period – Constitution of Review Committee by petitioner Corporation – Section 21(2) does not provide for constitution of review committee to deal with such disputes. (Municipal Corporation of Brihan Mumbai Vs Hotel Hill Top International, Mumbai & Ors.) 2004(2) Civil Court Cases 614 (Bombay)

Electricity Act, 1910, S.23, Sch.Cl.10 – Small scale industrial unit – 50% cut introduced as such monthly quota fixed – Nothing to show that monthly quota was spread over to entire month or was to be consumed on average basis per day – Levy of penal charges on consumer only on ground that he consumed energy within few days and it not being spread over for entire month – Improper. (K.M.Abdul Azeez Vs The Kerala State Electricity Board) AIR 2002 Kerala 188

Electricity Act, 1910, S.24, Civil Procedure Code, 1908, S.9 – Defective meter – Brought to the notice of licensee – Inspite of that meter not replaced – Recovery of dues of electricity consumed during this period – In absence of provision under Electricity Act or Rules framed thereunder licensee to pursue remedy of filing civil suit for that purpose. (Municipal Corporation of Brihan Mumbai Vs Hotel Hill Top International, Mumbai & Ors.) 2004(2) Civil Court Cases 614 (Bombay)

Electricity Act, 1910, S.24 – Electricity dues – Recovery – Supply of electric energy to Company – Agreement signed by Director of Company – Director referred as consumer in agreement – Director can be said to have signed agreement in his individual capacity – Doctrine of piercing or lifting of veil of corporate personally applied – Recovery against Director of Company – Not improper. (Anshuman Singh Vs State of U.P. & Ors.) 2004(3) Civil Court Cases 19 (Allahabad)

Electricity Act, 1910, S.24 – Registered consumer permitting third party to use electricity from his connection – Default in payment of dues – It is registered consumer who is liable to pay – Action cannot be taken by Board against third party – No privity of contract exists between Board and third party. (M/s Inndev Engineers (India) P.Ltd. Vs Delhi Vidyut Board) 2003(1) Civil Court Cases 184 (Delhi) 

Electricity Act, 1910, S.24 – Service connection granted for load of 20 HP –  Motor capacity on testing found to be 30 HP and thereby unauthorised additional load of 10 HP detected – Unauthorised load neither removed nor regularised within stipulated period – Disconnection of service, not proper. (Jayaramachandran Vs The Tamil Nadu State Electricity Board) AIR 2002 Madras 230

Electricity Act, 1910, S.24 – Stop meter – Dispute is beyond scope of Electrical Inspector. (Bhrihanmumbai Municipal Corporation Vs M/s Sapyah Trust and Sarkar Trust) AIR 2002 Bombay 315

Electricity Act, 1910, S.24(1) – “Sum due” – Meaning – Analysed. (Municipal Corporation of Brihan Mumbai Vs Hotel Hill Top International, Mumbai & Ors.) 2004(2) Civil Court Cases 614 (Bombay)

Electricity Act, 1910, S.26 – Additional electricity bill – Faulty meter – Dispute raised by Board – Issuance of additional bill on basis of probable use by consumer without affording him an opportunity of hearing – Improper. (Ladhabhai Monabhai Mangkiya Vs Gujarat Electricity Board) AIR 2003 Gujarat 116

Electricity Act, 1910, S.26 – Burnt meter and meter not recording correction consumption – When meter is burnt there is nothing wrong on raising demand based on average consumption for the similar period during the previous year – So far as the period for which meter is said to be incorrect the demand when not based on finding arrived by Electrical Inspector cannot be revised – Licensee cannot raise an additional demand over and above the demand raised through the bills which were issued for that period and paid by the consumer – Right to raise additional bills stands lost by licensee for its failure to proceed in accordance with S.26(6) of the Electricity Act, 1910. (Bombay Electric Supply & Transport Undertaking Vs Laffans (I) Pvt.Ltd. & Anr.) 2005(1) Apex Court Judgments 631 (S.C.) : 2005(2) Civil Court Cases 364 (S.C.)

Electricity Act, 1910, S.26 – Meter – Slow running of meter or improper functioning of meter – Authority competent to decide such dispute is the Electrical Inspector. (Ashok Textiles Vs Gujarat Electricity Board) AIR 2003 Gujarat 95

Electricity Act, 1910, S.26 – Original seals replaced with spurious seals – High Court passed interim order directing department to arrive at finding whether seals collected from disconnected meter were spurious or not – Department was not asked to come to conclusion as to whether there was any pilferage or not – Department arrived at conclusion that seals of meter were tampered and there was possibility of pilferage – Conclusion is beyond scope of enquiry and hence cannot be accepted – However considering fact that “tampering” includes “spurious”, finding of Department to extent of meter being tampered with can be accepted – Word “tempering” is a generic term and it includes cases of spurious” as well. (Chen Kuam Tain Vs CESC Ltd.) AIR 2003 Calcutta 63

Electricity Act, 1910, S.26 – Scope – Applicability of the provision – Provision is not applicable when meter is tampered with or supply line is manipulated or body seal of meter is broken – However, provision is applicable when meter is faulty due to some defect and not registering the actual consumption of electricity. (Bombay Electric Supply & Transport Undertaking Vs Laffans (I) Pvt.Ltd. & Anr.) 2005(1) Apex Court Judgments 631 (S.C.) : 2005(2) Civil Court Cases 364 (S.C.)

Electricity Act, 1910, S.26(6) – ‘Meter stopped functioning’ – It is not a case of a meter being correct or not – Matter is not covered u/s 26(6) of the Act. (Brihanmumbai Mun. Corp. Vs M/s Sapyah Trust) 2003(1) Civil Court Cases 506 (Bombay)  

Electricity Act, 1910, S.26(6) – Defective meter – Can be said to be defective if its suffers from mechanical defect, resulting in not correctly recording consumption of energy – Only in such cases Electrical Inspector has jurisdiction to try disputes – His powers, however, cannot be extended to defect in other appliances, fittings which may be part of installation – Thus, incorrect recording of consumption of energy due to melting of LT wire resulting in loss of current in one of phases – Does not fall within purview of S.26(6). (Bihar State Electricity Board Vs Shree Plywoods (Pvt.) Ltd. & Ors.) AIR 2002 Patna 84

Electricity Act, 1910, S.26(6) – Electrical Inspector – Exercise of power – Has necessarily to be in relation to the “present dispute” and not “the past dispute” – Electrical Inspector is empowered to calculate amount of the liability of the consumer for the supply made to the consumer during the period of preceding six months from the day on which the meter is found to be not correct. (Municipal Corporation of Brihan Mumbai Vs Hotel Hill Top International, Mumbai & Ors.) 2004(2) Civil Court Cases 614 (Bombay)

Electricity Act, 1910, S.26(6) – Electrical Inspector cannot decide dispute merely on basis of report prepared by some other machinery or agency – Electrical Inspector must inspect the meter and arrive at finding regarding defect in the meter. (Municipal Corporation of Brihan Mumbai Vs Hotel Hill Top International, Mumbai & Ors.) 2004(2) Civil Court Cases 614 (Bombay)

Electricity Act, 1910, S.26(6) – Exercise of power by Electrical Inspector u/s 26(6) – There has necessarily to be a dispute or difference of opinion between licensee and consumer in relation to functioning or malfunctioning of the mater. (Municipal Corporation of Brihan Mumbai Vs Hotel Hill Top International, Mumbai & Ors.) 2004(2) Civil Court Cases 614 (Bombay)

Electricity Act, 1910, S.26(6) – Scope – Applicability of the provision – Provision is not applicable when  meter is burnt or is completely non functional on account of any reason whatsoever. (Bombay Electric Supply & Transport Undertaking Vs Laffans (I) Pvt.Ltd. & Anr.) 2005(1) Apex Court Judgments 631 (S.C.) : 2005(2) Civil Court Cases 364 (S.C.)

Electricity Act, 1910, Ss.33, 44A – Electrocution – Report of Electrical Inspector – Report prepared in exercise of statutory duty is admissible in evidence even without his examination. (Union of India Vs Soosanna Eldhose) 2003(2) Civil Court Cases 507 (Kerala) 

Electricity Act, 1910, S.36(2), Electricity Rules, 1956, R.6 – Appeal under the Act – Not governed by limitation prescribed under R.6 – No period is prescribed – Appeal should be preferred within reasonable time. (Shree Gopal Engineering Works Limited Vs CESC Limited) AIR 2002 Calcutta 99

Electricity Act, 1910, S.39, Criminal Procedure Code, 1973, S.482 – Charge framed u/s 39 Electricity Act – Tampering of meter – No allegation that any artificial means has been used for abstraction of the electricity by the petitioner for consumption and use – FIR quashed. (Pawan Kumar Vs The State of Haryana) 2003(1) Criminal Court Cases 163 (P&H) 

Electricity Act, 1910, S.39, Indian Penal Code, 1860, S.379 – Electricity – Theft – Accused paying compensation assessed by Authority as per policy decision – FIR quashed. (Swaran Virk Vs State of Haryana) 2002(3) Criminal Court Cases 459 (P&H) 

Electricity Act, 1910, S.39, Indian Penal Code, 1860, S.379 – Electricity – Theft – Mere allegation of tampering of meter and control of accused over it is not sufficient – Presence of a perfected artificial means to render abstraction of energy possible must be established – Accused rightly discharged. (State of Haryana Vs Multan Singh & Ors.) 2004(1) Criminal Court Cases 60 (P&H)

Electricity Act, 1910, S.39, Indian Penal Code, 1860, S.379 – Electricity – Theft – Notice issued to deposit compensation within 48 hours failing which FIR would be registered and without waiting for the deposit demanded case got registered on the same day – Amount of compensation deposited within requisite time – FIR quashed. (Harish Kumar Vs State of Haryana) 2003(3) Criminal Court Cases 16 (P&H) 

Electricity Act, 1910, S.39, Indian Penal Code, 1860, S.379 – Offence u/s 39 – To constitute an offence under the provision it is necessary to prove dishonest intention and that some artificial means or means not authorised by the licencee exists for the abstraction, consumption or use of energy by the consumer. (Pawan Kumar Vs The State of Haryana) 2003(1) Criminal Court Cases 163 (P&H)

Electricity Act, 1910, S.39 – Seals of meter found to be broken and tampered with – No offence u/s 39 is made out in the absence of proof of dishonest intention and that some artificial means or means not authorised by the licencee exists or the abstraction, consumption or use of energy by the consumer. (Pawan Kumar Vs The State of Haryana) 2003(1) Criminal Court Cases 163 (P&H)

Electricity Act, 1910, S.39-A, Indian Penal Code, 1860, S.379 – Theft of electricity – FIR lodged – Penalty imposed and realised – FIR sought to be quashed – Board circular that if offender comes forward voluntarily to settle and make payment of the amount of compensation and makes payment FIR will be withdrawn – – Offences are such that it cannot be compounded by a complainant even with the consent of the Court –  Such a settlement between consumer and board is no more than a compromise which has no binding effect upon the Criminal Court – FIR cannot be quashed merely on the ground that the compensation assessed and demanded by the Board had been paid by an offender. (Om Parkash Babbar Vs Haryana State Electricity Board) 2003(1) Civil Court Cases 431 (P&H) 

Electricity Act, 1910, Ss.39, 44, 49-A, 49-C – Theft of electricity – By amendment in Electricity Act quantum of sentence enhanced and also took away right of appeal and created special Tribunal for trial – Held, penal provisions not to have retrospective effect – Pending cases to be tried by regular criminal courts and not by special Tribunal. (Transmission Corporation of A.P. Vs Ch. Prabhakar & Ors.) 2004(3) Criminal Court Cases 767 (S.C.)

Electricity (Supply) Act, 1948, S.49 – Additional load – Not feasible – Order that demand for extra load shall be considered as and when feasible – No irregularity. (M/s Orient Express (P) Ltd. Vs NDMC) AIR 2003 Delhi 189

Electricity (Supply) Act, 1948, S.49 – Additional load – Not feasible – Petitioner cannot on his own decide to utilise extra energy without there being a sanctioned load – Levy of surcharge as misuse charges – Proper. (M/s Orient Express (P) Ltd. Vs NDMC) AIR 2003 Delhi 189

Electricity (Supply) Act, 1948, S.49 – Electricity supply – Additional demand for loss of electricity due to non functioning of capacitor of electric motor – Held, it is duty of Board to point out the violation or lapses to the consumer and give reasonable time to consumer to rectify the defect – Proceedings for recovery of additional amount stayed. (E.P.Ahammed Koya Vs Kerala State Electricity Board & Ors.) 2004(2) Civil Court Cases 182 (Kerala)

Electricity (Supply) Act, 1948, S.49 – Security – Interest – Agreement between consumer and Board that Board would pay interest on security – Rate of interest provided therein – Subsequent withdrawal of provision for grant of interest by Board by issuing notification – Not permissible. (Grasim Cement Vs Madhya Pradesh Electricity Board) AIR 2004 M.P. 176

Electricity (Supply) Act, 1948, S.49 – Tariff – Benefit to manufacturing units of cloth – Petitioner unit manufacturing several kinds of cotton cloth/fabric woven with multiple warp/weft/yarns and containing 85% by weight of cotton – Entitled to benefit under tariff. (M/s Jyoti Overseas Ltd. Vs M.P. Electricity Board) AIR 2002 M.P. 114

Electricity (Supply) Act, 1948, S.49 – Tariff – Water works carried by Municipal Corporation – Involves Industrial activity – Falls under HT category I and not under HT category VI. (A.P.S.E.B. Vs Warangal Municipal Corp.) AIR 2002 A.P. 210

Electricity (Supply) Act, 1948, S.49 – Terms and conditions of supply – Framed by Board – Are statutory in character and not purely contractual. (M/s Naya Bharat Ferro Alloys Ltd. Vs A.P.S.E.B.) AIR 2002 A.P. 493

Electricity (Supply) Act, 1948, S.78-A – Power conferred upon State Govt. – Not a power to exempt from provisions of Act and Regulations made thereunder – Categorisation of consumers by Board is statutory action – Cannot be whittled down by State Govt. by issuing directions under S.78-A. (A.P.S.E.B. Vs Warangal Municipal Corp.) AIR 2002 A.P. 210

Electricity (Supply) Act, 1948, S.78-A – Regularisation of electricity service connections to motors installed on bore wells in lands as per scheme announced by Transmission Corporation – Writ Petition – Allowed – Plea by Corporation that it had no opportunity to produce physical verification reports of farms of claimants showing that there were no bore well or electric motor in existence – Govt. issuing guidelines based on its policy providing for regularisation of unauthorised electricity service connections – Corporation directed to consider applications of only those claimants who satisfied all the three conditions stipulated in guidelines. (A.P.Transco Vs Kanamata Reddy Koti Reddy) AIR 2002 A.P. 193

Electrocution – Allegation that no proper care was taken by Electricity Board while maintaining electric lines as a result of which minor claimant sustained injuries due to which her left leg was amputated below knee portion – After considering medical evidence and other evidence trial Court decreed suit granting compensation of Rs.3,00,000/- – Proper – However interest reduced from 12% to 9% per annum. (Dy.Engineer, Rabdal Sub-Station GEB, Electric Supply & Ors. Vs Minor Kaliben Lalsinhbhai Bhora) 2004(2) Civil Court Cases 473 (Gujarat)

Electrocution – Boy studying in 5th standard suffered serious injuries due to electrocution through open high tension wire – Negligence on part of authorities proved – Compensation, if any, can be quantified only in regular civil suit and not writ petition – However, writ Court can grant some compensation subject to decision of Civil Court keeping in view injuries, age of boy and his future prospectus. (D.Chandrashekhar Vs Chairman-cum-Managing Director) AIR 2002 Karnataka 205

Electrocution – Death – Electricity Board bound to take steps to avoid accidents in transmission – Negligence by it is actionable – Statement of claimant that deceased died by electrocution from live wire – Clearly attracts principle of res ipsa loquitor – Negligence of board clearly established – It would be liable to pay compensation. (Smt.Shail Kumari Vs M.P.Electricity Board) AIR 2002 M.P. 86

Electrocution – Death due to coming into contact with a broken live electric wire – State can be made liable to pay damages on account of negligence on part of its officials. (State of J&K Vs Zarina Begum) AIR 2004 J&K 23

Electrocution – House wife aged 35 years – Award of compensation enhanced from Rs.70,000/- to Rs.1,00,000/- – Absence of proof of income of deceased is no hindrance in awarding compensation. (Fakir Chand Vs State of Assam) AIR 2002 Gauhati 84

Electrocution – Live electric wire snapped and fell on road due to illegal act of a stranger for pilferage purposes – Deceased came in contact with live wire and died of electrocution – Held, electricity Board is liable to pay compensation, even though there was no negligence on its part. (M.P.Electricity Board Vs Shail Kumari) 2002(2) Criminal Court Cases 80 (S.C.)

Electrocution – Live wire touching fencing of agricultural land – Death of agriculturist by coming in contract with fencing wire due to electric shock – Death was on account of negligence on part of Electricity Board – Electricity Board liable to pay compensation. (Executive Engineer Vs Zubedabadi) AIR 2003 Gujarat 320

Employees’ Provident Funds and Miscellaneous Provisions Act, 1952, Ss.7-A, 14 (1-A) and 14-AC – Offence under Employees’ Provident Funds and Miscellaneous Provisions Act – Sanction for prosecution – Not bearing seal of office – Not a ground to reject  sanction when its authenticity and competence of authority which issued is duly established – Non examination of authority does not go to root of matter.   (M.R.Joseph Vs John Menezes) 2004(3) Criminal Court Cases 86 (Karnataka)

Employees’ Provident Funds and Miscellaneous Provisions Act, 1952, S.14-AC, Criminal Procedure Code, 1973, S.200 – Provident Fund – Non payment of contribution – Complaint presented by Enforcement Officer – As Enforcement Officer is authorised to deal with such matters, complaint filed by him is competent. (M.R.Joseph Vs John Menezes) 2004(3) Criminal Court Cases 86 (Karnataka)

Employees’ Provident Funds and Miscellaneous Provisions Act, 1952, S.14-AC – Provident Fund – Non payment of contributions – Non payment relating to period of one month and dating back to December 1988 and that amount involved is meagre and as the same stands paid, fine of Rs.50 in each case is sufficient to meet ends of justice. (M.R.Joseph Vs John Menezes) 2004(3) Criminal Court Cases 86 (Karnataka)

Equity – On equitable consideration Court cannot ignore or overlook the provisions of the statute – Equity must yield to law. (Shamsu Suhara Beevi Vs G.Alex & Anr.) 2004(2) Apex Court Judgments 262 (S.C.) : 2004(3) Civil Court Cases 555 (S.C.)

Equity – Wrong committed by one person – Does not entitle another person to commit a wrong. (Ram Lal Vs State of Punjab & Ors.) 2004(4) Criminal Court Cases 172 (P&H)

Essential Commodities Act, 1955, S.3 – Failure to put price list or discrepancies in stock – Are technical violations – Confiscation reduced from 50% to 25%. (Navjivan Roller Flour and Pulse Mills Ltd. Vs State of Gujarat) 2002(1) Criminal Court Cases 703 (Guj.)

Essential Commodities Act, 1955, S.3/7 – Proceedings initiated under a statute which comes to an end by efflux of time cannot be continued after the expiry of such a statute. (State of Rajasthan Vs Rajak) 2004(2) Criminal Court Cases 254 (Rajasthan)

Essential Commodities Act, 1955, Ss.3, 7 – Fair price shop – Locked by landlord – Sugar kept at house – It was a compelling necessity – No complaint of consumers – Case against accused not proved – Accused acquitted. (Mukesh Kumar Vs State of Rajasthan) 2002(2) Criminal Court Cases 347 (Rajasthan) 

Essential Commodities Act, 1955, Ss.3, 7, 28 – Scope – Sanction for prosecution not obtained – Complaint not falling within any of clauses of S.28 – Order of framing charge quashed. (Uttari Rajasthan Sahakari Dugdh Utpadak Sangh Ltd. & Anr. Vs Ram Kishan & Anr.) 2005(2) Criminal Court Cases 95 (Rajasthan)

Essential Commodities Act, 1955, S.6-B(a) – Essential commodity – Confiscation – Notice – A show cause notice in writing is mandatory before passing of an order of confiscation. (State of Punjab Vs Jawahar Lal Malhotra) 2002(1) Criminal Court Cases 673 (P&H)

Essential Commodities Act, 1955, Ss.6-A, 2(iia) – Collector – Includes Sub Divisional Officer, if authorised by the Collector to perform the functions and exercise the power of Collector under the Act. (State of Punjab Vs Jawahar Lal Malhotra) 2002(1) Criminal Court Cases 673 (P&H)

Essential Commodities Act, 1955, Ss.6-A, 6-B, Fertilizer Control Order 1985, Clause 5(xi), 8 and 8 read with Form F – Fertilizer – Unauthorised storage – Certificate must contain the specified brand name of the fertilizers stored by the dealer and source of supply – Storage of fertilizers other than that mentioned in the certificate is unauthorised storage – Amendment in certificate sought to add additional item subsequent to the raid will not make earlier unauthorised storage to be authorised – Held, authority was justified in holding the petitioner to be storing the fertilizer not included in his certificate as unauthorized and cancelling the certificate. (State of Punjab Vs Jawahar Lal Malhotra) 2002(1) Criminal Court Cases 673 (P&H)

Essential Commodities Act, 1955, S.7, Fertilizer Control Order, 1985, Clause 19(1)(a) – Fertilizer – Sample found to be sub-standard – Prosecution of President of Manufacturing company whereas company not arrayed as co-accused – In absence of company, President cannot be prosecuted – Proceedings quashed. (R.K.Thukral Vs State of Punjab)  2003(1) Criminal Court Cases 287 (P&H) 

Essential Commodities Act, 1955, S.7, Fertilizer Control order, 1985, Clauses 19(1)(a) and 24 – Company – Fertilized – Sub Standard – Prosecution of Chief Manager Production – Averment in complaint that he was responsible to Company for quality control – This averment is not enough – It was not sated that he was incharge and responsible to the company for overall conduct of business – Proceedings quashed – Apart from that company not arrayed as accused. (Diwan Chand Vs The State of Punjab) 2003(3) Criminal Court Cases 343 (P&H)

Essential Commodities Act, 1955, S.7, Fertilizer Control Order, 1985, Cl.19(1)(a) – Production Manager – Prosecution for violation of Fertilizer Control Order – Production Manager could not be served despite warrant of arrest – However, non bailable warrants issued against Managing Director of Company – Order passed mechanically – Managing Director not arrayed an accused in complaint – Order summoning Managing Director quashed. (Atul Gulati Vs State of Haryana) 2003(3) Criminal Court Cases 125 (P&H)

Essential Commodities Act, 1955, S.7, Fertilizer (Control) Order, 1985 – Fertilizer – Sample found to be sub-standard – Nothing on record to show that any spot memo was prepared at the time when sample was taken – Nothing to show in what manner sample was taken and in what manner the same was sealed – This lacuna cannot be filled by giving details at a later stage – Mandatory legal formalities as to taking of sample not observed or adhered to – Accused acquitted. (Sham Lal Vs The State of Haryana) 2004(1) Criminal Court Cases 475 (P&H)

Essential Commodities Act, 1955, S.7, Fertilizer (Control) Order, 1985 – Fertilizer – Sample – Mandatory legal formalities as to taking of sample when not observed or adhered to – Accused acquitted. (Sham Lal Vs The State of Haryana) 2004(1) Criminal Court Cases 475 (P&H)

Essential Commodities Act, 1955, S.7, Liquified Petroleum Gas (Regulation of Supply and Distribution) Order 1988 – Gas cylinders – Seizure by ASI of Police – ASI of Police has no power to seize the cylinders – It is only Officer of Department of Food and Civil Supplies not below the rank of Inspector who is specifically authorised by notification, who can exercise the power under the Act – Conviction set aside. (Karam Chand & Anr. Vs State of Haryana) 2003(3) Criminal Court Cases 604 (P&H) 

Essential Commodities Act, 1955, S.7, Probation of Offenders Act, 1958, S.4, Fertilizer Control order, 1985, Cl.19(1)(a) – Fertilizer – Sample found to be sub-standard and accused convicted – Accused faced trial for 5 years and not previous convicts – Accused released on probation. (Satinder Singh Vs Punjab State) 2004(3) Criminal Court Cases 657 (P&H)

Essential Commodities Act, 1955, S.7, Probation of Offenders Act, 1958, S.4 – Conviction u/s 7 of Essential Commodities Act – Accused not previous convict – Accused faced trial for 14 years – Accused released on probation. (M/s.Maya Ram & Sons Vs State of Haryana) 2003(3) Criminal Court Cases 544 (P&H) 

Essential Commodities Act, 1955, S.7, Punjab Regulation of Compounded Cattle, Food, Concentrates and Mineral Mixtures Order, 1988, Clauses 3, 11 and 2(x) – Cattle feed – Sample – Taken by Deputy Director, Dairy Development who is not an authorised authority – Authorised authority is Milk Commissioner or any person authorised by him – Accused acquitted. (State of Punjab Vs Jagdish Chand & Anr.) 2004(3) Criminal Court Cases 161 (P&H)

Essential Commodities Act, 1955, S.7, Punjab Regulation of Compounded Cattle, Food, Concentrates and Mineral Mixtures Order, 1988, Clauses 3, 11 and 2(x) – Cattle feed – Sample – Taken in polythene bag – Sample taken in violation of the standard for taking of sample – Cattle feed sample is required to be taken in a clean and dry glass contained which should be of such a size that the container is almost completely filled by the sample. (State of Punjab Vs Jagdish Chand & Anr.) 2004(3) Criminal Court Cases 161 (P&H)

Essential Commodities Act, 1955, S.7 – Company – Ghee manufactured by Company found to be not as per prescribed standard – Company arrayed as accused through its Managing Partner – Non bailable warrants issued against Managing Partner – Warrant quashed – It is company which is arrayed as accused and not Managing Partner – Company shall be represented by Managing Partner or by anyone of the Principal Officers so appointed or nominated in this regard. (Kewal Singh Dhillon Vs State of Punjab) 2003(3) Criminal Court Cases 534 (P&H) 

Essential Commodities Act, 1955, S.7 – Fertilizer – Sample found to be sub-standard – Conviction of accused – Incident 10 years old – Sentence reduced from 6 months to already undergone and sentence of fine enhanced from Rs.1,000/- to Rs.10,000/- and in default of payment thereof accused to undergo rigorous imprisonment for two months. (Mahinder Pal Vs State of Haryana) 2005(2) Criminal Court Cases 319 (P&H)

Essential Commodities Act, 1955, S.7 – Ration Depot Holder – In register sale of 60-80 Kg. shown whereas in fact wheat supplied was 10 Kg. to ration cord holders – Four independent witnesses supported the case of prosecution – Plea of accused that he had been falsely implicated in the case as he had contested the election of Sarpanch and witnesses had opposed him in the said election cannot be accepted – Conviction upheld. (Giani Ram Vs The State of Haryana) 2003(3) Criminal Court Cases 366 (P&H) 

Essential Commodities Act, 1955, S.7(1)(a)(2) – Evidence recorded by predecessor – Successor cannot proceed with case from the stage at which his predecessor had left – Successor has to recall witnesses and then record his finding. (Mangal Sah Vs State of Bihar) 2002(3) Criminal Court Cases 145 (Patna) 

Essential Commodities Act, 1955, S.7(1)(a)(ii) – Offence under S.7(1)(a)(ii) of Essential Commodities Act – Maximum sentence relating to the offence is 7 years – Charge sheet filed after about two years of offence – Not barred by limitation. (State of A.P. Vs Farmers Service Coop. Society & Ors.) 2004(4) Criminal Court Cases 441 (S.C.)

Essential Commodities Act, 1955, S.7(1)(a)(ii) – Scheme – Violation – No offence is made out – For applicability of the provision it has to be shown that there was an “Order” by Government and that order has been violated. (Prakash Babu Raghuvanshi Vs State of Madhya Pradesh) 2005(1) Criminal Court Cases 60 (S.C.)

Essential Commodities Act, 1955, Ss.7 and 12AA, Cr.P.C., 1973, S.482 – Offence by company – Complaint against company through its Managing Director – Company could not be served with summons – Non bailable warrants against Managing Director cannot be issued as Managing Director is not one of the accused. (V.K.Garg Vs State of Punjab) 2002(2) Criminal Court Cases 651 (P&H) 

Essential Commodities Act, 1955, Ss.7 and 19(1)(a), Fertilizer Control Order, 1985, Sch.II, Part A – Fertilizer – Sample if not taken as per prescribed procedure laid down in Part A of Schedule II sub-clause (e) of Fertilizer Control Order, 1985, then accused cannot be convicted. (State of Punjab Vs Ashok Kumar & Ors.) 2004(1) Criminal Court Cases 24 (P&H)

Essential Commodities Act, 1955, Ss.7 & 12AA, Fertilizer (Control) Order, 1985, Clause 19 – Company – Complaint u/s 7 of Essential Commodities Act – No averment in complaint that petitioner was responsible for the conduct and business of the company when the sample was collected – Complaint qua petitioner quashed. (R.G.Srivastava Vs State of Punjab) 2003(2) Criminal Court Cases 176 (P&H) 

Essential Commodities Act, 1955, Ss.7, 10 & 55, Liquified Petroleum Gas (Regulation of Supply and Distribution) Order, 1988 – Gas cylinders – Weighment – Inspector Food and Supplies has power to raid Gas Agency and physically verify gas cylinders and get them weighed. (Yogesh Kumar & Ors. Vs State of Haryana) 2003(1) Criminal Court Cases 05 (P&H) 

Essential Commodities Act, 1955, Ss.7, 10 & 55 – Selling kerosene oil in black – Raid by police – Kerosene oil not purchased by anyone of the raiding party – It is not stated as to what was the price of kerosene oil and what was being actually charged by petitioner – There is neither any averment nor any evidence on record to show that petitioner was indulging in selling of kerosene oil in black – Conviction set aside. (Krishna Grover Vs State of Haryana) 2003(3) Criminal Court Cases 293 (P&H) 

Essential Commodities Act, 1955, S.10 – Cement – Manufacture without licence – Proceedings sought to be quashed on the ground that petitioners are not responsible for carrying on the business of the company as such are not liable to be prosecuted – Petition dismissed as charge already framed – Trial Court will look into said plea. (Vijay Kumar Vs State of Haryana) 2002(2) Criminal Court Cases 655 (P&H) 

Essential Commodities Act, 1955, S.10 – Partnership firm – Sleeping partners – In case of a company every person who at the time of commission of offence is incharge and responsible to the company for the conduct of the business of the company can be proceeded and punished – Sleeping partners rightly discharged. (State of Punjab Vs Sukhdev Raj) 2004(1) Criminal Court Cases 549 (P&H)

Evasive denial – Denial for want of knowledge – It is an evasive denial – Unless specific pleadings which touch the merits of the case are not specifically denied, the same shall amount to admission of the relevant facts pleaded in the corresponding paras of the plaint. (Civil Procedure Code, 1908, O.8.Rr.3,4). (State of Punjab  Vs Gurmel Singh) 2003(2) Civil Court Cases 115 (P&H) 

Eviction petition – Landlord and tenant – Wife owner of property – Husband let out the premises on behalf of wife – Held, wife as landlady entitled to maintain eviction proceedings. ((Haryana Urban Control of Rent and Eviction Act, 1973, S.2(c). (Jai Parkash Singh Vs Sharda Pandey) 2003(2) Civil Court Cases 161 (P&H) 

Eviction petition – Landlord and tenant – Wife owner of property – Statement of husband in a separate suit that he was the landowner – Will not make him the landlord. (Haryana Urban Control of Rent and Eviction Act, 1973, S.2(c). (Jai Parkash Singh Vs Sharda Pandey) 2003(2) Civil Court Cases 161 (P&H) 

Examination – Delay in correction of result – Student losing academic session for fault of authorities – Compensation awarded. (Md.Obaidullah Vs Bihar Intermediate Education Council) AIR 2002 Jharkhand 46

Examination – Misconduct – Candidate found with ruler having some writings/inscriptions thereon in Examination Hall – Matter on ruler pertaining to subject for which student was appearing at the examination – Candidate is guilty of misconduct – Decision of fact finding authority to cancel her result and debarring her from appearing at any examination – Cannot be interfered. (Sardar Patel University Vs Minal R.Jogi) AIR 2002 Gujarat 13

Examination – Petitioner shown absent in one paper and declared having failed – On enquiry it was found that petitioner appeared for said paper and secured passing marks – Modified result not declared – Petitioner suffered serious loss and irreparable injury of three academic years and entire future career – Board directed to publish modified result and pay compensation of  Rs.50,000/-. (Sunil Nag Vs Bihar School Examination Board) AIR 2002 Jharkhand 51

Examination – Use of unfair means – No definite material in support of cancellation of result – Cancellation of result is arbitrary and unfair. (Lal Chandra Vs Vice Chancellor) AIR 2002 Allahabad 208

Exams – Revaluation – Result declared after supplementary examination was taken – Suit for damages – Limitation – When there is a specific plea that there is no statutory duty to declare the result within any specified time and it is done as a matter of grace  then limitation prescribed under Art.72 of Limitation Act, 1963 is not applicable. (Limitation Act, 1963, Art.72). (University of Kerala Vs Molly Francis) 2004(3) Civil Court Cases 512 (Kerala)

Exams – Revaluation – Result of revaluation declared after supplementary examination was taken – Damages – If the result of revaluation is published long after the next examination there is no purpose of such revaluation at all – Damages allowed. (University of Kerala Vs Molly Francis) 2004(3) Civil Court Cases 512 (Kerala)

Explosive Act, 1884, S.9-B (i) (b) & Explosive Substances Act, 1908, S.4 – Recovery of Explosive – Sanction for prosecution – No sanction required under 1884 Act – Sanction required under Explosive Substances Act, 1908 – Report of Controller of Explosive clearly stating that goods recovered were explosive of class-2 and Class 6 of Schedule I of Explosive Rules, 1983 – Conviction upheld. (Lopchand Naruji Jat Vs State of Gujarat) 2005(1) Criminal Court Cases 44 (S.C.)

Explosive Act, 1884, S.9-B (i) (b) – Sentence – Recovery of 180 Detonators – Quantities seized clearly disproves that seized article were intended to be used for digging wells – Detonators of a company at Rourkela in Orissa – Recovery at Surat – Accused person tried to run away when Police tried to apprehend them are relevant factors – Conviction upheld. (Lopchand Naruji Jat Vs State of Gujarat) 2005(1) Criminal Court Cases 44 (S.C.)

Explosive Act, 1884, S.9-B (i) (b) – Witness – Conviction on the basis of testimony of Investigating Officer – No independent witness – Investigating Officer was found to be trustful inspite of incisive cross-examination nothing came out to discredit his evidence – Court justified to record conviction on his evidence alone. (Lopchand Naruji Jat Vs State of Gujarat) 2005(1) Criminal Court Cases 44 (S.C.)

Explosive Substances Act, 1908, S.5 – Explosive material – Recovery – Prosecution of accused without sanction of Government – Accused acquitted – Sanction to prosecute given by District Magistrate is no sanction in the eye of law. (Jarnail Singh Vs State of Punjab) 2002(1) Criminal Court Cases 218 (P&H)

Fake currency notes – Mens rea is very essential – Without Mens rea selling, buying or receiving from another person or otherwise trafficking in or using as genuine forged or counterfeit notes or bank notes is not enough to constitute offence u/s 498-B IPC – So also possession or even intending to use any forged or counterfeit currency notes or bank notes is not sufficient to make out a case u/s 498-C in the absence of mens rea. (Umashanker Vs State of Chhattisgarh) 2002(1) Criminal Court Cases 403 (S.C.)

Family arrangement – Division of both movable and immovable properties left by parents of parties sought therein – Not registered – Inadmissible in evidence. (T.Sarveswara Rao T.Sathyanarayaqna) AIR 2002 Madras 487

Family Arrangement – Joint family properties – In a informal family arrangement various members of family put in possession and enjoyment of different property – All family members signed this family arrangement – Partition so arrived at was acted upon by parties and they also derived benefits therefrom – For number of years no objection raised – Even assuming that document was required to be registered conduct of members operates as an estoppel preventing them from resiling from said arrangement – One member cannot seek injunction or restraint order in respect of property partitioned and mutated in favour of another member. (Smt.P.N.Wankudre Vs C.S.Wankudre) AIR 2002 Bombay 129

Family arrangement – Receipt of Rs.3,000 towards relinquishment of share in family property – Document unregistered – Document of property of more than Rs.100/- requires compulsory registration – Unregistered document cannot be received in evidence and it cannot be looked into for any purpose. (Registration Act, 1908, Ss.17, 49). (P.Shanmugasamy Vs Kausalya alias Krishnaveni) 2005(1) Civil Court Cases 209 (Madras)

Family arrangement – Where document contains terms and recitals of family arrangement made under the document, it requires registration – However a mere memorandum prepared after the family arrangement had already been effected, then it does not require registration as in such a case memorandum itself does not create or extinguish any rights in immovable property and the same does not fall within the mischief of S.17(1)(b) Registration Act.  (Registration Act, 1908, S.17(1)(b). (Ravinder Kaur & Ors. Vs Jagmohan Singh & Ors.) 2005(1) Civil Court Cases 250 (P&H)

Family arrangement – “Agreement” mentioned in the heading – Tenor of the agreement in present tense and recitals show that parties to the agreement are partitioning the properties by virtue of the said document – A condition was there regarding payment of Rs.3800/- by one `P’ to `K’ and that the receipt of consideration on account of creation, declaration, assignment, limitation or extinguishment of right, title or interest was in prasenti – Held, document requires compulsory registration. (Ravinder Kaur & Ors. Vs Jagmohan Singh & Ors.) 2005(1) Civil Court Cases 250 (P&H)

Family Courts Act, 1984, S.7, Criminal Procedure Code, 1973, S.125 – Separate living by mutual consent – Question as to whether said agreement can be treated as legal divorce comes in the domain of Family Courts Act and away from the jurisdiction of High Court. (Vitthal Hiraji Jadhav Vs Harnabai Vitthal Jadhav & Anr.) 2003(3) Civil Court Cases 412 (Bombay) 

Family Courts Act, 1984, S.7, Criminal Procedure Code, 1973, S.125 – Separate living by mutual consent – Question as to whether said agreement can be treated as legal divorce comes in the domain of Family Courts Act and away from the jurisdiction of High Court. (Vitthal Hiraji Jadhav Vs Harnabai Vitthal Jadhav) 2003(3) Criminal Court Cases 251 (Bombay) 

Family Courts Act, 1984, S.7, Hindu Marriage Act, 1955, S.13-B – Divorce by mutual consent – Family Court has power to grant decree for divorce by mutual consent. (Uma Tiwari Vs Vikrant Tiwari) 2005(2) Civil Court Cases 67 (M.P.)

Family Courts Act, 1984, S.7(1) Expln. and clause (f) – Daughter – Suit for maintenance from father – Falls in clause (f) of the Explanation to S.7(1) of the Act and can be filed before the Family Court – A petition or suit stating in clear terms that daughter is not gainfully employed anywhere and therefore she is in need of assistance from her father having regard to her status, cannot be said to have not disclosed any cause of action. (Mansi  Vs Aniruddha Ramchandra Pusalkar) 2003(2) Civil Court Cases 145 (Bombay) 

Family Courts Act, 1984, S.7(g) – Family Court has no jurisdiction to entertain an application to appoint a person as guardian of the property of the minor. (Anitha Abraham Vs Jacob Oommen) 2003(1) Civil Court Cases 473 (Kerala)  

Family Courts Act, 1984, Ss.7(1) Expln. (c) and 8 – Suit by wife against husband for recovery of movable properties alleged to have been taken away by husband – It is a suit between parties to marriage – Family Court alone has jurisdiction – Merely because husband’s father is impleaded as party to suit, it cannot be said that Civil Court can entertain such suit. (H.P.Lakshmidevaraje Urs Vs G.P.Asharani alias Nandini) 2003(1) Civil Court Cases 70 (Karnataka)

Family Courts Act, 1984, S.13, Family Court Rules, 1988, Rule 37 – Custody of children – Dispute as to – Representation by legal practitioner – Allegations and counter allegations for appointment of guardian – Evidence of both parties required to be recorded – When parties cannot put forward their case without the assistance of counsel then Court should permit the Advocates to represent the parties.  (Priyanaka & Anr. Vs Abhay Agarwal) 2004(3) Civil Court Cases 353 (M.P.)

Family Courts Act, 1984, S.19(1) and (4), CPC: S.115, O.43.R.1 – Interlocutory order – Not revisable except those passed under Chapter 9 of Cr.P.C. (R.Varadaraj Vs Smt.V.Nirmala) AIR 2002 Karnataka 241

Family settlement – Consideration passed hands from one party to another – It naturally is for creation of rights – Such a document necessarily requires registration. (Hari Singh Vs Shish Ram) 2003(1) Civil Court Cases 554 (P&H)  

Family settlement – Civil Court decree – Does not require registration. (Registration Act, 1908, S.17). (Ranjit Singh Vs Balbir Singh & Ors.) 2005(1) Civil Court Cases 808 (P&H)

Family settlement – Decree creating right for the first time in property – It requires registration. (Registration Act, 1908, S.17). (Rajinder Singh Vs Joginder Singh) 2003(1) Civil Court Cases 395 (P&H) 

Family settlement – Decree in favour of real brother – Held, decree is based on family settlement and is not required to be compulsorily registered. (Jagdish & Ors. Vs Ram Karan) 2003(1) Civil Court Cases 372 (P&H) 

Family settlement – Even if one of the parties to the settlement had no apparent antecedent title but under the arrangement, the other party relinquishes all its claim or title in favour of such a person and acknowledges him to be the sole owner then antecedent title was to be presumed and the family settlement was liable to be upheld. (Jagdish & Ors. Vs Ram Karan) 2003(1) Civil Court Cases 372 (P&H) 

Family settlement – If a document or a settlement creates a new right in any property which the parties never had nor possessed according to the mutual settlement, such a document cannot be construed as a family settlement and it needs registration. (Hadiani Debi alias Tiki Devi Vs Kailash Panda & Ors.) 2004(2) Civil Court Cases 211 (Orissa)

Family settlement – Oral – Law does not require family settlement to be in writing – If family settlement is in writing it requires registration – If there is an oral family settlement or there is a memorandum of family settlement in writing, the same does not require registration. (Mukanda Vs Kura Ram) 2003(2) Civil Court Cases 301 (P&H)

Family settlement – Not necessary that it should be in writing – It can be oral also. (Jai Lal Vs Chhattar Singh & Ors.) 2005(1) Civil Court Cases 779 (P&H)

Family settlement – Self acquired property – Decree in favour of nephews – Person owning self acquired property has absolute right to transfer the same – Daughter is not required to be a member to the family settlement – Nephews are members of a larger family and decree, on the basis of family settlement, in their favour of self acquired property is valid. (Ram Piari Vs Shamsher Singh & Ors.) 2004(3) Civil Court Cases 97 (P&H)

Family settlement – Suit claim admitted by defendant – Decree passed – Held, if there is no fraud in passing the decree then decree is good and valid decree and cannot be ignored on the ground that the same is not registered. (Jagdish & Ors. Vs Ram Karan) 2003(1) Civil Court Cases 372 (P&H) 

Family settlement/Family partition – One of the pre-requisites for a valid family settlement/family partition is that it must be signed by all the major members of the family. (Saudarshan Kumar Vs Raj Rani) 2003(3) Civil Court Cases 564 (P&H) 

Fatal Accidents Act, 1855, S.1-A, Evidence Act, 1872, Ss.41 to 43 – Murder – Suit for compensation – Judgment of acquittal by criminal court is irrelevant in a civil suit based on same cause of action. (Francis & Ors. Vs Jessy & Anr.) 2005(2) Civil Court Cases 172 (Kerala)

Fatal Accidents Act, 1855, S.1-A – Claim petition – Can be filed by successor of deceased victim and not the injured victim – Claim petition filed by injured victim is not maintainable. (Raj Kumar Vs District Judge, Sriganganagar & Ors.) 2005(2) Civil Court Cases 194 (Rajasthan)

Fatal Accidents Act, 1855, S.1-A – Murder – Compensation – Wife and minor son are entitled for compensation – On death of a defendant his L.R’s are liable to the extent of estate of deceased. (Francis & Ors. Vs Jessy & Anr.) 2005(2) Civil Court Cases 172 (Kerala)

Female – Arrest should be in presence of a lady constable – However presence of lady constable if impedes the course of investigation then arrest can be made without presence of lady constable at any time depending upon the circumstances of the case – Arresting Officer has to record reasons either before or immediately after arrest. (State of Maharashtra Vs Christian Community Welfare Council of India & Anr.) 2004(1) Criminal Court Cases 353 (S.C.)

Fertilizer Control Order, 1985, Clause 19, Essential Commodities Act, 1955, Ss.7 & 12AA – Company – Complaint u/s 7 of Essential Commodities Act – No averment in complaint that petitioner was responsible for the conduct and business of the company when the sample was collected – Complaint qua petitioner quashed. (R.G.Srivastava Vs State of Punjab) 2003(2) Criminal Court Cases 176 (P&H) 

Fertilizer Control Order, 1985, Clause 19, Essential Commodities Act, 1955, S.7, Criminal Procedure Code, 1973, S.482 – Fertilizer – Misbranded – Managing Director of Manufacturing company cannot be prosecuted if the company is not arrayed as an accused. (S.C.Sharma Vs State of Haryana) 2003(1) Criminal Court Cases 149 (P&H) 

Fertilizer Control Order, 1985, Clause 19(1), Essential Commodities Act, 1955, S.7, Criminal Procedure Code, 1973, S.482 – Company – No averment in the complaint that the person accused of violation of Fertilizer Control Order is in any way responsible for the management and control of the manufacturing concern – In absence of an averment in complaint evidence to that effect cannot be led – Proceedings qua him quashed. (Deepak Kumar Vs State of Haryana) 2003(1) Criminal Court Cases 67 (P&H) 

Fertilizer Control Order, 1985, Clause 19(1)(a), Essential Commodities Act, S.7 – Production Manager – Prosecution for violation of Fertilizer Control Order – Production Manager could not be served despite warrant of arrest – However, non bailable warrants issued against Managing Director of Company – Order passed mechanically – Managing Director not arrayed an accused in complaint – Order summoning Managing Director quashed. (Atul Gulati Vs State of Haryana) 2003(3) Criminal Court Cases 125 (P&H)

Fertilizer Control Order, 1985, Clauses 19(1)(a) and 24, Essential Commodities Act, 1955: S.7 – Company – Fertilized – Sub Standard – Prosecution of Chief Manager Production – Averment in complaint that he was responsible to Company for quality control – This averment is not enough – It was not sated that he was incharge and responsible to the company for overall conduct of business – Proceedings quashed – Apart from that company not arrayed as accused. (Diwan Chand Vs The State of Punjab) 2003(3) Criminal Court Cases 343 (P&H)

Fertilizer Control Order, 1985, Clause 23, Essential Commodities Act, 1955, S.10 – Non standard fertilizer – There is no prohibition for its sale. (State of Punjab Vs Sukhdev Raj) 2004(1) Criminal Court Cases 549 (P&H)

FIR – Cannot be ordered to be converted into a complaint – Police finding no evidence submitted cancellation report u/s 173 Cr.P.C. – Magistrate however ordering FIR to be converted into a complaint – Held, FIR cannot be converted into a complaint – In case cancellation report is not accepted then Magistrate can direct the complainant to file a separate complaint. (Rajinder Singh & Ors. Vs State of Punjab) 2003(2) Criminal Court Cases 5 (P&H) 

FIR – Forgery – Mere pendency of civil litigation not a bar to the registration of an FIR. (Makhan Singh Vs State of Punjab) 2002(1) Criminal Court Cases 413 (P&H)

Fraud – It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad. (Ram Chandra Singh Vs Savitri Devi & Ors.) 2003(2) Apex Court Judgments 376 (S.C.) : 2003(3) Civil Court Cases 678 (S.C.) 

Fraud – On Court – A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio – Fraud and deception are synonymous. (Ram Chandra Singh Vs Savitri Devi) 2003(3) Civil Court Cases 678 (S.C.) : 2003(2) Apex Court Judgments 376 (S.C.)

Fraudulent act in judicial proceedings – Cannot be allowed to stand. (Vijay Shekhar & Anr. Vs Union of India & Ors.) 2004(4) Criminal Court Cases 782 (S.C.)

Free legal aid – Accused engaged a counsel who failed to turn up during examination of witnesses – Accused cannot complain of free legal aid being not provided. (Ramesh @ Tillu Vs State) 2004(2) Criminal Court Cases 600 (Delhi)

General Clauses Act, 1897, S.3(35) – ‘Month’ – Meaning – Means space of time between two dates of two contiguous months – Three months means three British calendar months and not 90 days calculated at rate of 30 days per month. (Loordswamy Vs Presiding Officer, Employees State Insurance Court) 2003(1) Civil Court Cases 335 (P&H) 

General Clauses Act, 1897, S.6-A – Amendment in Negotiable Instruments Act by Amending Act of 1988 – After amendment Act served its purpose it was repealed – Such repeal does not affect original Act which already stood amended – Amendment in original Act remains in operation and does not get abrogated by repeal of Amending Act. (K.K.Vasudava Kurup Vs The Union of India) AIR 2003 Bombay 64

General Clauses Act, 1897, S.10 – Limitation expiring on a holiday – Act should be considered to have been done within that period if it is done on the next day on which the court or office is open. (HUDA & Anr. Vs Dr.Babeswar Kanhar & Anr.) 2005(1) Apex Court Judgments 401 (S.C.) : 2005(1) Civil Court Cases 685 (S.C.)

General Clauses Act, 1897, S.27, Civil Procedure Code, 1908, O.5.R.9 – Registered letter – Properly addressed and pre-paid – Report of ‘Not claimed’ – Held, when the party refuses to take delivery of postal articles containing summons it is deemed that notice is duly served. (Smt.Vithabai G.Ghodake Vs The United Western Bank Ltd.) 2003(2) Civil Court Cases 137 (Karnataka) 

Goodwill – Is a thing very easy to describe but very difficult to define – It is an asset of partnership and signifies the value of business in the hands of a successor interested by the continuity of the business undertaking preserved in the shape of its old name – It is something more than a mere chance of probability of old customers maintaining their connection. (Sri Ramnik Vallabhdas Madhvani & Ors. Vs Taraben Pravinlal Madhvani) 2004(1) Apex Court Judgments 630 (S.C.) : 2004(3) Civil Court Cases 98 (S.C.)

Guardians and Wards Act, 1890, Hindu Minority and Guardianship Act, 1956, S.13 – Minor son aged 10 years living with mother – Wife with son living separately on account of ill-treatment by her husband her in-laws – Father seeking custody of child – Both husband and wife having sufficient means – Where child has reached age of understanding, wishes of child is also relevant – When child prefers company of mother who is capable of maintaining child, there is no justification for depriving child of company of his mother. (Smt.Gundamma Vs Shivasharanappa) 2004(3) Civil Court Cases 264 (Karnataka)

Guardians and Wards Act, 1890, Ss.7,8 – Guardian – Appointment – Protection of minors interest and its welfare should always be a paramount consideration. (Javind Ghorashian Vs State of Maharashtra) AIR 2002 Bombay 1

Guardians and Wards Act, 1890, Ss.7, 17, Hindu Minority and Guardianship Act, 1956, Ss.6, 13 – Hindu boy aged more than five years – Custody – Child in custody of father – Child taken by mother – Petition by father for restoration of custody of minor – Father’s rights as natural guardian for custody of child is not absolute – It is circumscribed by consideration of welfare of child – Claim to custody is not claim to property but is in nature of trust for benefit of child – Where father is educated and employed and mother is living with her parents having no independent source of income, it is proper that father is given custody of minor. (Smt.Radha alias Parimala Vs N.Rangappa) 2004(2) Civil Court Cases 377 (Karnataka)

Guardians and Wards Act, 1890, S.9 – Children – Custody – Jurisdiction – Ancestral home of minors at Jodhpur but minors residing with their mother at Jaipur – Mother remarried and no chances of her return to Jodhpur – Held, Court at Jaipur has jurisdiction – Petition in Court at Jodhpur rightly rejected. (Acharya Shri Kundan Maharaj & Anr. Vs Smt.Indra & Anr.) 2004(2) Civil Court Cases 325 (Rajasthan)

Guardians and Wards Act, 1890, S.9 – Children – Custody – Jurisdiction – Minors born and living with their mother at Bhiwani – Mother alongwith children shifted her residence to Rohtak – Children deemed to be residing at Rohtak – Court at Bhiwani has no jurisdiction. (Sunita Jain Vs Mittar Sain Jain) 2003(3) Civil Court Cases 261 (P&H) 

Guardians and Wards Act, 1890, S.9 – Court within whose jurisdiction the minor ordinarily resides will have jurisdiction to try the case. (Anitha Abraham Vs Jacob Oommen) 2003(1) Civil Court Cases 473 (Kerala)  

Guardians and Wards Act, 1890, S.9 – Guardian of person and property of minor – Jurisdiction – Expression where minor ‘ordinarily resides’ – Meaning – Analysed. (Jagdish Chandra Gupta Vs Dr.Ku.Vimla Gupta) AIR 2003 Allahabad 317

Guardians and Wards Act, 1890, S.9 – Minor – Custody – Jurisdiction – School certificate from Headmaster of school that minor was ordinarily residing at place ‘A’ – Application for custody filed at place ‘B’ where divorce proceedings between father and mother of minor was pending – Not maintainable. (Anima Gupta Vs Tarun Kumar) AIR 2003 Allahabad 76

Guardians and Wards Act, 1890, S.9(1) – Minor – Appointment of guardian – Jurisdiction – ‘Ordinarily resides’ – Means the place where minor actually resides at time of application and not a legal or constructive residence of such minor unless where an artificial residence is created with bad faith – In the instant case minor under care of a trust at Tamilnadu – Handed over to parents  seeking guardianship of minor after verifications – Minor taken to Bangalore and living in care of foster parents – Family Court at Bangalore  has jurisdiction  to entertain application. (Abraham G.Karimpanal & Ors. Vs Nil) 2004(3) Civil Court Cases 155 (Karnataka)

Guardians and Wards Act, 1890, Ss.9, 25 – Child – Custody – Jurisdiction – No hard and fast rule that residence of natural guardian or of mother of minor should be treated as ordinary residence of minor – Ordinary residence of minor is a matter of fact which has to be ascertained from evidence on record. (Harsahdbhai Zinabhai Desai Vs Bhavnaben) AIR 2003 Gujarat 74

Guardians and Wards Act, 1890, Ss.9, 25 – Minor children – Custody – By grandparents of children – Father of minor children died and mother got remarried and she permanently settled at place ‘J’ and children residing with her – Ordinary place of residence of minor children is ‘J’ – Application for custody filed at place where minor children resided with their father – Dismissed for lack of jurisdiction – Proper. (Acharya Shri Kundan Maharaj Vs Indra) AIR 2004 Rajasthan 90

Guardians and Wards Act, 1890, S.25 – Minor – Custody – Father though natural guardian but welfare of minor is paramount consideration in matter of custody of minor – Wife suffering from cancer deserted by husband – Their minor son was 9 months old at that time – Since then minor living happily with maternal grandfather and maternal grandmother – Proceeding with his studies and properly taken care of – Minor when asked preferred maternal grandfather as choice instead of father – Custody given to maternal grandfather ignoring father’s claim keeping in view minor’s welfare. (Govind Sahai Bagarhatta Vs Santosh Mishra) AIR 2002 Rajasthan 96

H.P. Land Revenue Act, 1954, S.32 – Revenue record – Change in entries – No lawful order authorising such change – Held, no benefit can be drived by defendant in whose favour change was recorded. (Kashi Ram Vs Harbhajan Singh Bhajji) AIR 2002 H.P. 154

H.P. Land Revenue Act, 1954, Ss.37, 46 – Order passed by authority under H.P. Land Revenue Act – Can be challenged before Civil Court. (Kashi Ram Vs Harbhajan Singh Bhajji) AIR 2002 H.P. 154

H.P.Municipal Act, S.90 – Fire fighting equipment – Duty of Municipality is mandatory and not obligatory – Failure of fire fighting personnel to control fire due to defective equipments – Held, plaintiff is entitled to claim compensation from Municipality – Word ‘May’ in S.90 to be read as ‘compulsory’. (Jagannath Vs The Kullu Municipal Committee) AIR 2003 H.P. 5

Haryana Development and Regulation of Urban Areas Act, 1975, S.3(3)(a)(iv) – Expression ‘at his own cost’ or ‘at its cost’ – When different terminologies are used by legislature it must be presumed that the same had been done consciously with a view to convey different meanings – Two expressions have separate and distinct meaning and they are not meant to aim at the same person. (M/s D.L.F.Qutab Enclave Complex Educational Charitable Trust Vs State of Haryana & Ors.) 2003(1) Apex Court Judgments 532 (S.C.)

Haryana Development and Regulation of Urban Areas Act, 1975, S.3(3)(a)(iv) – ‘At his own cost’ and ‘at its cost’ – The two expressions have separate and distinct meaning – Regulation of user of land cannot be construed to be a limitation prohibiting transfer of land which does not affect its user – By an executive action a right to transfer one’s own property cannot be curtailed. (M/s D.L.F.Qutab Enclave Complex Educational Charitable Trust Vs State of Haryana & Ors.) 2003(1) Apex Court Judgments 532 (S.C.)

Haryana Good Conduct Prisoners (Temporary Release) Act, 1988, S.3(1)(d) – Parole – Grant of parole is the rule – Exception can only be if the convict is a violent person who has not shown any remorse or reform and who may commit serious crime if released on parole. (Subash Vs State of Haryana & Anr.) 2004(3) Criminal Court Cases 235 (P&H)

Haryana Good Conduct Prisoners (Temporary Release) Act, 1988, S.3(1)(d) – Parole – House repair – Parole on the ground of house repair refused contending that the house of the petitioner was in a good condition – However, report of the Municipal Councillor that house required repairs – Parole granted for 4 weeks. (Ishwar Vs State of Haryana & Ors.) 2005(2) Criminal Court Cases 616 (P&H)

Haryana Good Conduct Prisoners (Temporary Release) Act, 1988, S.3(1)(d) – Parole – Release on parole – Sought for repair of house – Police opposing the parole but Municipal Committee strongly recommended grant of parole – Parole refused without considering report of Municipal Committee – Order set aside – Authority directed to reconsider the matter afresh. (Ramesh Kumar Vs State of Haryana & Anr.) 2005(2) Criminal Court Cases 496 (P&H)

Haryana Good Conduct Prisoners (Temporary Release) Act, 1988, S.3(1)(d) – Repair of house – Prisoner can be released on parole for repair of house – It is not for the authorities to determine whether house requires any repair or not. (Bajrang Lal Vs State of Haryana) 2004(2) Criminal Court Cases 645 (P&H)

Haryana Good Conduct Prisoners (Temporary Release) Act, 1988, S.3(1)(d) and 3(2) – Parole – Release on parole declined – It is an administrative decision – However such decision is open to judicial review – High Court can exercise its power of judicial review in criminal matters. (Ramesh Kumar Vs State of Haryana & Anr.) 2005(2) Criminal Court Cases 496 (P&H)

Haryana Good Conduct Prisoners (Temporary Release) Act, 1988, S.3(1)(e) – Parole – For agricultural work – Cannot be denied on the ground that other family members of the petitioner can do necessary cultivation. (Narotam Vs State of Haryana & Anr.) 2005(1) Criminal Court Cases 468 (P&H)

Haryana Good Conduct Prisoners (Temporary Release) Act, 1988, Ss.3,4 – Prisoners – Temporary release – Act categorizing prisoners i.e. prisoner release on parole and prisoner released on furlough for counting period of release towards total period of sentence of imprisonment – Conditions of temporary release on furlough is more rigorous than release on parole – Prisoner released on parole to meet his urgent personal problem not entitled for continuing period of release towards total period of sentence of imprisonment – Classification based on reasonable criteria and S.3 therefore is not discriminatory. (Avtar Singh Vs State of Haryana) AIR 2002 SC 1109

Haryana Housing Board Act, 1971, S.74, Chandigarh Housing Board (Allotment, Management and Sale of Tenements) Regulations, 1979, Regn.6 – Dwelling unit – Allotment – Person becomes ineligible for allotment if he acquires some other house or site at Concessional rate through Government/Semi-Government/Municipal Committee etc. – No prohibition against person acquiring property at Concessional rate from any person – Even if plot is got by way of gift, he does not become ineligible – Petitioner getting residential plot by way of friendly transfer – He is not ineligible from getting allotment from Housing Board. (Notan Dass Vs Chandigarh Housing Board) AIR 2002 P&H 37

Haryana Municipal Act, 1973 (As amended by Act No.3 of 1994), S.13A(1)(c) – Disqualification for membership – Effect of Haryana Act No.15 of 1994 – High Court holding that disqualification will operate after 5.4.1995 i.e. on the expiry of the period of one year from 5.4.1994, the date of coming into force of the Amendment Act No.3 of 1994 – Held, decision of High Court is neither arbitrary or unreasonable or unjust to call for interference – Appeal dismissed. (Sunil Kumar Rana Vs State of Haryana & Ors.) 2003(1) Apex Court Judgments 316 (S.C.)

Haryana Panchayati Raj Act, 1994, Ss.175(1)(g) and 177(1) – Election of Panchayats – Disqualification of persons having more than two children – Impugned disqualification has a nexus with the purpose sought to be achieved by the Act, hence it is valid. (Javed & Ors. Vs State of Haryana & Ors.) 2003(2) Apex Court Judgments 539 (S.C.)

Haryana Panchayati Raj Act, 1994, Ss.175(1)(g) and 177(1) – Election of Panchayats – Disqualification of persons having more than two children – Provision is not arbitration and hence not violative of Article 14 of the Constitution – Classification is well defined and well perceptible – Persons having more than two living children is clearly distinguishable from persons having not more than two living children – Number of two children is based on legislative wisdom, not open to judicial scrutiny. (Javed & Ors. Vs State of Haryana & Ors.) 2003(2) Apex Court Judgments 539 (S.C.)

Haryana Panchayati Raj Act, 1994, Ss.175(1)(g) and 177(1) – Election of Panchayats – Disqualification of persons having more than two children – Provision is not discriminatory. (Javed & Ors. Vs State of Haryana & Ors.) 2003(2) Apex Court Judgments 539 (S.C.)

Haryana Panchayati Raj Act, 1994, Ss.175(1)(g) and 177(1) – Election of Panchayats – Disqualification of persons having more than two children – Provision is not violative of Article 21 or 25 Constitution of India – Right to contest an election is neither a fundamental right nor a common law right – Disqualification on right to contest an election by having more than two living children does not contravene any fundamental right nor does it cross limits of reasonability. (Javed & Ors. Vs State of Haryana & Ors.) 2003(2) Apex Court Judgments 539 (S.C.)

Haryana Urban Development Authority Act, 1977, S.15 – Allotment of leasehold rights of plot – Market price – Determination – High Court set aside the same – Supreme Court directing re-auction of plots with further direction that allottees be given option to retain site by paying fair market price – No reference to payment of interest on payment of market price – During pendency of proceedings before Courts for leave to demand such interest no application filed by Development Authority – Allottess already paying total sum for which they were allotted leasehold rights – Determination of market price as demanded by authority not yet approved by Court – Demand of 15% interest on market price – Not legal. (Seven Seas Educational Society Vs The Haryana Development Authority) AIR 2002 P&H 83

Haryana Urban Development Authority Act, 1977, S.15 – Leasehold rights in plot – Market value – Determination – Grant of plots of big size for school – Sale instances relating to plots of smaller size – Cannot be relied upon. (Seven Seas Educational Society Vs The Haryana Development Authority) AIR 2002 P&H 83

Haryana Urban Development Authority Act, 1977, S.15 – Leasehold rights in plot – Market value of plot – Instances relating to free hold property – Cannot be relied upon – Leasehold rights in the property cannot be equated to a free-hold property, in fact and in law both. (Seven Seas Educational Society Vs The Haryana Development Authority) AIR 2002 P&H 83

Haryana Urban Development Authority Act, 1977, S.34 – Allotment of plot – Default in payment of instalment – Interest chargeable 10% but charged at 18% – Illegal – Authority required under law to refund excess recovered. (Roochira Ceramics Vs H.U.D.A.)  AIR 2002 S.C. 2380

Himachal Pradesh Urban Rent Control Act, 1987, Ss.14(3)(c) and 14(5) – Eviction on ground of building or rebuilding – Proof of sanctioned building plan and necessary funds though not required by the provisions of the Act but for determining the bona fides of the landlord its proof is necessary as without means for carrying out the construction or reconstruction his requirement would remain a mere wish and would not be bona fide. (Jagat Pal Dhawan Vs Kahan Singh) 2003(1) Civil Court Cases 691 (S.C.) : 2003(1) Apex Court Judgments 234 (S.C.)

Himachal Pradesh Housing Board Act, 1972, S.27 – Industrial plots given on lease by Board to two different companies – Clause in lease deed that if lessee sells, transfers, assigns or otherwise part with possession of leased property, lessor would be entitled to recover portion of unearned increase in value of industrial plot at time of such sale or transfer – Amalgamation/merger of two companies – Held, Board is entitled to demand unearned increase and same has to be calculated on market value as on date of amalgamation. (Eicher Limited Vs Himachal Pradesh Housing Board) AIR 2002 H.P. 135

Hindu Law – Adoption – An adopted son does not have any share in property of his natural ancestors or father – Hence question of property being ancestral or self-acquired of his natural father is of no importance. (Dharam Vir Singh & Ors. Vs Roop Ram & Ors.) 2004(2) Civil Court Cases 341 (P&H)

Hindu Law – Adoption – Person taking plea of adoption has to prove it – Adoption, in the instant case, said to be of Magha 1953 – No tithi or date stated – Witnesses in favour of adoption found unreliable – Circumstances being against adoption – Documents supporting adoption written 10 years after adoption – Features of document showing to be forged and unreliable – Adoption held to be not proved. (Sundar Majhi Vs Lukhi Majhiani) 2003(3) Civil Court Cases 666 (Orissa) 

Hindu Law – An adoption of a son does not deprive the adoptive mother of the power to dispose of her separate property by transfer or by will. (Ugre Gowda Vs Nagegowda (Dead) by Lrs. & Ors.) 2004(2) Apex Court Judgments 424 (S.C.) : 2004(3) Civil Court Cases 551 (S.C.)

Hindu Law – Ancestral and non-ancestral land mixed in such a way that it is difficult to find out as to which part of land is ancestral or non-ancestral – Thus entire land is non ancestral. (Inder Singh (Dead) through LRs. Vs Chhano & Ors.) 2005(1) Civil Court Cases 138 (P&H)

Hindu Law – Ancestral property – Alienation – Legal necessity – Burden is on a purchaser to prove that there was a legal necessity in fact or that he made a proper and bonafide enquiry as to existence of such necessity and did all that was reasonable to satisfy himself as to existence of such necessity – Such burden is discharged once the vendee shows that there was a bona fide transaction  and the vendee has made enquiries about the legal necessity of the vendor – A vendee is not required to show actual use of money by the vendor – Age of vendor 85 years and he needed money for his treatment of acute asthma – Vendee thus discharged his burden that vendor needed money for a legal necessity – No evidence that vendor was not ill or was not of advanced age or that he was being looked after by plaintiffs or that sale was for any immoral purpose – Merely because vendor is shown to have money to his credit in the bank account is not enough to show that he had no legal necessity – Suit rightly dismissed by Courts below. (Prem Singh & Ors. Vs Dharam Singh) 2005(1) Civil Court Cases 534 (P&H)

Hindu Law – Ancestral property – If ancestral and non ancestral properties are mixed and put in a joint hotch-potch without maintaining and reserving any right to its separate claim, the entire property has to be considered as ancestral property. (Kesar Bai (Dead) through LRs. Vs Ran Singh) 2003(3) Civil Court Cases 115 (P&H) 

Hindu Law – Ancestral property – Self acquired and ancestral property mixed and inseparable – Entire property  becomes ancestral property. (Sunehri Devi  Vs Lachhmi) 2004(3) Civil Court Cases 45 (P&H)

Hindu Law – Blending of self acquired property with joint family property – No formality is necessary to impress self acquired property as joint family property and intention of party to do so is only relevant. (M.Krishna Rao & Anr. Vs M.L.Narasikha Rao & Ors.) 2004(2) Civil Court Cases 265 (A.P.)

Hindu Law – Blending of self acquired property with joint family property – Self acquired property can be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with intention of abandoning his separate claim – To establish such abandonment clear intention to waive separate rights must be established – Fact that other members of the family were allowed to use the property jointly with himself, or that the income of the separate property was utilized out of generosity to support persons whom the holder was not bound to support, or from the failure to maintain separate accounts, abandonment cannot be inferred, for an act of generosity or kindness will not ordinarily be regarded as an admission of a legal obligation. (D.S.Lakshmaiah & Anr. Vs L.Balasubramanyam & Anr.) 2003(2) Apex Court Judgments 562 (S.C.)

Hindu Law – Co-parcener can sell his share in such property – Challenge to sale deed by co-parcener is not sustainable. (Mahendra Mahanta Vs Tarini Dei) AIR 2003 Orissa 180

Hindu Law – Common passage – Obstruction – Remedy available to the other side is a suit for mandatory injunction with a prayer for issuing direction to the party to restore the land to its original condition. (Raghunath Bardhan Vs Biswanath Bardhan) 2003(3) Civil Court Cases 178 (Orissa) 

Hindu Law – Coparcenary property – A coparcener is not entitled to alienate the coparcenary property by way of a gift. (Hadiani Debi alias Tiki Devi Vs Kailash Panda & Ors.) 2004(2) Civil Court Cases 211 (Orissa)

Hindu Law – Coparcenary property – Gift of undivided interest – Coparcener can make such gifts either to another coparcener or to a stranger only with prior consent of all coparceners. (Vishwasrao Madhavrao Chiplunkar & Ors. Vs Kamlabai Vishwasrao Chiplunkar & Ors.) 2005(1) Civil Court Cases 183 (Bombay)

Hindu Law – Coparcenary property – Sale by Karta – Sale without legal necessity and not for the benefit of the management of the coparcenary property – Sale is liable to be set aside in its entirety and not to the extent of share of the alienating coparcener. (Sital Singh Vs Jamna Bai & Ors.) 2004(3) Civil Court Cases 642 (P&H)

Hindu Law – Coparcenary property – Suit for joint possession during life time of father – Not maintainable – In fact suit for joint possession is apparently a circuitous method for seeking the partition of the property in the life-time of father which is not permissible. (Raghubir Singh Vs Dalip Singh & Anr.) 2004(2) Civil Court Cases 649 (P&H)

Hindu Law – Coparcener – A sole surviving coparcener can bequeath his joint family property as if it was his separate property. (Fateh Singh & Ors. Vs Lakhbir Singh & Ors.) 2004(2) Civil Court Cases 57 (P&H)

Hindu Law – Customary divorce – Divorce by consent – Is not recognizable by a Court unless specifically permitted by law. (Yamanaji Vs Nirmala) AIR 2002 S.C. 971

Hindu Law – Customary divorce – Such a custom should be pleaded and established by party propounding such custom. (Yamanaji Vs Nirmala) AIR 2002 S.C. 971

Hindu Law – General principles – With enactment of specific acts general principles are not abolished. (Sitaben Vs Bhanabhai) AIR 2002 Gujarat 376

Hindu Law – HUF – Joint family business – Plot purchased by coparcener in is name, sanction plan for construction and electric connection in his name – Shown as owner in I.T. proceedings, inducted tenant and obtained loan by mortgaging property – Failure to prove his independent source of income and that money required for purchasing plot and raising construction was not from joint family business – Held, title in property cannot vest in him alone but continues in joint family. (Madan Lal Vs Ram Prasad) AIR 2002 Rajasthan 99

Hindu Law – Joint Family – Karta – Junior member can act as Karta on senior member giving up his right. (Harihar Sethi Vs Ladukishore Sethi) AIR 2002 Orissa 110

Hindu Law – Joint Family – Partition – Can be made by definite, unambiguous declaration of intention to separate from family. (Vishwasrao Madhavrao Chiplunkar & Ors. Vs Kamlabai Vishwasrao Chiplunkar & Ors.) 2005(1) Civil Court Cases 183 (Bombay)

Hindu Law – Joint Family Business – There is no presumption under Hindu Law that a business standing in the name of any member of the joint family is a joint family business even if that member is the manager of the joint family unless it is shown that the business in the hands of the coparcener grew up with the assistance of the joint family property or joint family funds or that the earnings of the business were blended with the joint family estate. (P.S.Sairam & Anr. Vs P.S.Rama Rao Pisey & Ors.) 2004(1) Apex Court Judgments 356 (S.C.) : 2004(2) Civil Court Cases 649 (S.C.)

Hindu Law – Joint Family Property – Alienation by Karta – Property mortgaged for marrying minor children – Debt incurred for satisfying such earlier mortgage – Cannot be said to be for legal necessity. (Dev Kishan Vs Ram Kishan) AIR 2002 Rajasthan 370

Hindu Law – Joint Family Property – Burden of proof – There is no presumption of a property being joint family property only on account of existence of a joint Hindu family – One who asserts has to prove that the property is a joint family property – If  person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available. (Evidence Act, 1872, Ss.101-104). (D.S.Lakshmaiah & Anr. Vs L.Balasubramanyam & Anr.) 2003(2) Apex Court Judgments 562 (S.C.)

Hindu Law – Joint Family Property – Earlier partition not proved – Members of family not in separate enjoyment and possession of property – Held, plaintiff is entitled to claim 1/3rd share which belong to their father. (Kanna Gounder Vs Arjuna Gounder) AIR 2003 Madras 157

Hindu Law – Joint Family Property – Gift by coparcener – Consent of other coparcener not taken – Gift is invalid. (Kanna Gounder Vs Arjuna Gounder) AIR 2003 Madras 157

Hindu Law – Joint Family Property – In hands of individual – Presumed to be joint family property only if nucleus is proved – Burden of proof is on the person who assets that it is joint family property. (P.M.Mani Vs P.S.Mohankumar) AIR 2002 Madras 402

Hindu Law – Joint Family Property – Joint Family Business converted into partnership – Same shop, same capital and same assets and liabilities used by partnership – No particular shares assigned – Conversion, being only on papers to avoid income-tax liability – One member started his separate business taking no money from the partnership business – Some properties acquired, purchased or mortgaged with the joint family prior to dissolution of partnership – Member having separate business has not lost his interest in the family business and the acquired properties also form part of joint family property. (Shantilal Vs Mahendra Kumar & Ors.) 2003 (2) Civil Court Cases 706 (Raj.)

Hindu Law – Joint Family Property – Property acquired by putting joint earnings in common – No joint family nucleus available for its purchase – Such property does not constitute joint family property – Members are co-sharers – On death such property passes by inheritance and not by survivorship. (P.M>Mani Vs P.S.Mohankumar) AIR 2002 Madras 402

Hindu Law – Joint Family Property – Succession – Self acquired property – Father can sell it to his son or gift it to him.(Rakesh Kumar Duggal Vs Baldev Kumar Duggal) AIR 2002 P&H 123

Hindu Law – Joint Family Property – There is no presumption of joint family property – It is only in cases where there is sufficient nucleus the income from which could be used for acquisition of other properties that a presumption could be raised and the burden shifts to the person who claims the property as self-acquisition. (Subramonian  Vs Radhakrishnan) 2004(2) Civil Court Cases 442 (Kerala)

Hindu Law – Joint Hindu Family Property – Alienation of Karta – Coparcener has no right to seek injunction restraining Karta from alienating coparcenary property – – Coparcener has a right only to challenge the alienation made by Karta on the ground that the same was not for any legal necessity or was not an act of good management. (Lal Dass Vs Raghbir Dass) 2003(3) Civil Court Cases 578 (P&H) 

Hindu Law – Joint Hindu Family Property – Parties were members of Hindu undivided family in Pakistan – Migrated to India – No evidence to show that property in question was allotted in lieu of land which was ancestral or joint Hindu family property – Cannot be said that the allotted property was owned by Joint Hindu Family or was ancestral. (Bisheshar Nath & Anr. Vs Shanti Devi (Dead) through LRs) 2005(1) Civil Court Cases 301 (P&H)

Hindu Law – Maintenance – Maternal uncle – No obligation to maintain their niece under Shastric Hindu Law – Right to possession of property given to her by them is not in lieu of maintenance – S.14(1) of Hindu Succession Act would not apply. (Gorachand Mukherjee Vs Malabika Dutta) AIR 2002 Calcutta 26

Hindu Law – Math – Appointment of mathadhipathi – Custom and usage play primary role – Neither Statute nor rules of succession of math conferred power on Govt. to appoint mathadhipati – Appointment by State Govt. therefore is not sustainable. (Shilpi Papachar Vs State of Karnataka) AIR 2003 Karnataka 111

Hindu Law – Partition – An item of property claimed to belong joint family – Income from joint family property found not sufficient to acquire other property – One co-parcener earning substantial income from his salary – Purchasing property by taking loan from G.P.F. – Suit property was his self acquired property and not joint family property. (Harihar Sethi Vs Ladukishore Sethi) AIR 2002 Orissa 110

Hindu Law – Partition – By female – Not tenable – Female member has no right to sue under general principles of Hindu Law – On marriage family member ceases to be member of her father’s HUF. (Sitaben Vs Bhabhai) AIR 2002 Gujarat 376

Hindu Law – Partition – Common passage – A passage or a common road for ingress and egress is impartible and indivisible. (Raghunath Bardhan Vs Biswanath Bardhan) 2003(3) Civil Court Cases 178 (Orissa) 

Hindu Law – Partition – Common passage – Can be partitioned only by consent of all the parties. (Raghunath Bardhan Vs Biswanath Bardhan) 2003(3) Civil Court Cases 178 (Orissa) 

Hindu Law – Partition – Inclusion of property alienated by Karta – Arises only on the strength of preliminary and final decrees – Till the alienations are held not binding or unenforceable, alienees cannot be deprived of their right to enjoy the same – Even if alienations are found to be not for the genuine necessities of the family or otherwise unenforceable, the rights of alienees are kept in tact by allotting such properties to the share of their transferors. (Manne Krishna Veni @ Veeraveni & Ors. Vs Rangisetti Pavan Kumar & Ors.) 2005(1) Civil Court Cases 474 (A.P.)

Hindu Law – Partition – Joint Family Property – Different partnership deeds amongst different family members in different combinations – Not a proof of separation – A family which carries on a number of business, it is quite often that it is carried out under different names and styles and often constitutes different names and styles and often constitutes different companies or partnership for better handling of business or to keep it manageable or for various other reasons – It is no proof of separation. (Madanlal (Dead) by Lrs. & Ors. Vs Yoga Bai (Dead) by Lrs.) 2003(2) Civil Court Cases 217 (S.C.) : 2003(1) Apex Court Judgments 370 (S.C.)

Hindu Law – Partition – Plea that properties were partitioned in 1976 at mediation of villagers preparing partition lists indicating shares of plaintiffs and defendant – No agreement that village Panchayat was authorised to divide properties – Partition lists found to be self serving documents – Finding of trial Court that there was no division of property at any time, held proper. (Mahendra Mahanta Vs Tarini Dei) AIR 2003 Orissa 180

Hindu Law – Partition – Previous partition – Long separate possession of lands and separate living among co-sharers – Inter se transfer of land between two co-sharers without any objection raised by other co-sharer – Severance of joint status among members – Concurrent finding of fact on basis of such evidence that there was previous partition by metes and bounds – No infirmity or illegality – No interference. (Pitambar Kar Vs Trilochan Kar) AIR 2003 Orissa 104

Hindu Law – Property inherited by person from his collateral cannot be said to be ancestral property in the hands of such person – But where non ancestral portion of land inherited from collateral was mixed and put in hotch potch in such manner that it cannot be separated then entire portion of land shall be deemed to be ancestral – In such case doctrine of blending applies. (Kesar Bai Vs Ran Singh) AIR 2003 P&H 289

Hindu Law – Relinquishment of right in joint family property – Property inherited from mother cannot be joint family property as such relinquishing of right in joint family property does not mean relinquishing of property inherited from mother. (K.Chinna Thimma Reddi Vs K.A.Venkatarami Reddi (Died) & Ors.) 2004(2) Civil Court Cases 698 (A.P.)

Hindu Law – Son born out of incestuous or adulterous intercourse – is disqualified from inheriting property of his putative father. (Subhan Rao Vs Parvathi Bai) AIR 2002 Karnataka 134

Hindu Law – Stridhan – Property purchased with money sent by husband for maintenance of wife – Held, money paid for purchasing the land in dispute is Stridhan and by no stretch of imagination it can be termed as benami. (Bodala Ravanmma Vs Esuru Sriramulu) 2003(1) Civil Court Cases 223 (Orissa)  

Hindu Law – Succession – Will – Property originally belonged to mother of parties and after her death daughter claiming half share in property – However, son claiming sole legatee under Will executed by deceased bequeathing her entire property to him – Will duly proved – Held, son is entitled to whole property. (K.L.Laxmikantha Vs K.L.Vijayalaxmi) AIR 2004 Kerala 293

Hindu Law – Succession – Woman living in adultery during life time of her husband – Not entitled to succeed to husband’s estate in joint family property. (Hazura Singh VS Tej Kaur) AIR 2002 P&H 162

Hindu Minority and Guardianship Act, 1956, Ss.5,6, Guardians and Wards Act, 1890, Ss.17, 19 & 25, Constitution of India, Art.32 – Minor children – Custody given to paternal grand-mother by Family Court – Mother cannot claim custody of children on basis of order obtained from U.S.A. for custody of minor children – However order passed granting visitation rights to mother in the interest and welfare of children. (Saihba Ali Vs State of Maharashtra & Ors.) 2003(2) Apex Court Judgments 60 (S.C.)

Hindu Minority and Guardianship Act, 1956, S.6 – Custody of child – Mother is to be preferred than father – Such generalisation cannot be made. (Kumar V.Jahgirdar Vs Chethana Ramatheertha) 2004(1) Apex Court Judgments 507 (S.C.) : 2004(2) Civil Court Cases 264 (S.C.)

Hindu Minority and Guardianship Act, 1956, S.6 – Custody of female child – Parents divorced – Mother remarried – Child on advent of puberty – Held, remarriage of mother is not a disqualification – Female child requires company of mother more – Mother after remarriage leading life as house wife – No female member in house of father – Apprehension that second husband may poison the mind of child and create ill will towards natural father, baseless – Custody given to mother with visitation rights to father. (Kumar V.Jahgirdar Vs Chethana Ramatheertha) 2004(1) Apex Court Judgments 507 (S.C.) : 2004(2) Civil Court Cases 264 (S.C.)

Hindu Minority and Guardianship Act, 1956, S.8(3) – Alienation of minor’s property by natural guardian without obtaining permission of Court – Alienation has to be challenged and without setting aside alienation, no relief can be obtained – There should be a prayer to set aside the alienation effected by natural guardian without the Court’s sanction – Plaintiff cannot merely ignore the sale deed. (Ramadas Menon Vs Sreedevi) 2004(2) Civil Court Cases 687 (Kerala)

Hindu Succession Act, 1956, S.2(2) – Applicability of the Act – ‘Scheduled Tribe” – Provisions of the Act not applicable unless the Central Government, by notification in Official Gazette, otherwise directs. (Smt.Sonam Dolma Vs Phunchog Angrup) 2003(3) Civil Court Cases 332 (H.P) 

Hindu Succession Act, 1956, S.6, Expln.I – Notional partition – It is a legal device used for purpose of demarcating interest of deceased. (Anubai  Vs Vithoba Shripati Savant (deceased) & Ors.) 2004(2) Civil Court Cases 564 (Bombay)

Hindu Succession Act, 1956, S.6 Proviso – Proviso is an exception to the section. (Harischandra Vithoba Narawade & Ors. Vs Smt.Vatsalabai w/o Narayan Shinde) 2005(1) Civil Court Cases 217 (Bombay)

Hindu Succession Act, 1956, S.6 – Joint Family Property – Sale by one co-sharer without consent of other co-sharers – Sale is void qua co-sharer who has not consented and is valid qua co-sharer who has alienated to extent of his undivided interest in joint family property and alienee is entitled to seek equitable adjustment in general partition. (U.G.Srinivasa Rao Vs Vinaykumar & Ors.) 2004(3) Civil Court Cases 240 (Karnataka)

Hindu Succession Act, 1956, S.6 – Joint Family Property – Suit by wife against husband for partition of her share – Held, suit is not maintainable as wife is not entitled to share during lifetime of husband. (Smt.Gourawwa Vs Basappa) 2003(3) Civil Court Cases 328 (Karnataka) 

Hindu Succession Act, 1956, S.9 – Heir falling in the Ist entry to be preferred to those in the IInd entry and so on in case of succession to the property – Preferential heir has right to succeed. (Nachhattar Singh & Anr. Vs Jangir Singh & Ors.) 2005(2) Civil Court Cases 353 (P&H)

Hindu Succession Act, 1956, S.14(1) – ‘Possessed’ – Meaning – It does not refer to actual or Khas possession of land given to a female in lieu of her maintenance. (P.Rameswara Rao Vs I.Sanjeeva Rao) AIR 2004 A.P. 117

Hindu Succession Act, 1956, S.14(1) – Limited estate – Enlargement – Property given by father-in-law to widowed daughter-in-law in lieu of maintenance – Widow had pre-existing right to maintenance in joint family property of her husband’s family – She had not surrendered her right of maintenance and she was in possession of property on date of coming into force of Act – Held, her limited right in property transforms into absolute right. (P.Rameswara Rao Vs I.Sanjeva Rao) AIR 2004 A.P. 117

Hindu Succession Act, 1956, S.14(1) – Widow – Inheritance – Husband was an offspring of an adulterous intercourse – He had no right of inheritance in is father’s family – Father considering his moral duty to maintain his son and daughter-in-law executed deed of settlement and granted possession of his properties to son for his maintenance and after his death to his wife during her lifetime – This moral liability ripened into legal liability after death of father-in-law – Consequently daughter-in-law’s limited right ripened into absolute right after enforcement of S.14(1). (Subhan Rao Vs Parvathi Bai) AIR 2002 Karnataka 134

Hindu Succession Act, 1956, S.14(1)(2) – Widow having no pre-existing right of maintenance – Right of possession given till her death – Said right not being in lieu of maintenance, cannot ripen into absolute title – Sub-S.2 of S.14 would apply and not sub-s.(1). (Gorachand Mukherjee Vs Malabika Dutta) AIR 2002 Calcutta 26

Hindu Succession Act, 1956, S.15 – Deceased female Hindu – Her step son not a preferential heir – Husband of deceased who was alive inherited entire property of deceased being her legal heir – Suit by husband of deceased terminating license of her step son to occupy suit premises – Maintainable. (Bhagwan Dass Vs Prabhati Ram) AIR 2004 Delhi 137

Hindu Succession Act, 1956, S.15(1)(b) – Female Hindu – Dying intestate and issueless – Devolution of property – Is to be on basis of source from which property was inherited by her – Property inherited by her from her mother devolves upon her sister i.e. upon legal heir of her father and not upon brother of pre-deceased husband – It is immaterial that female Hindu initially had limited right and later acquired full ownership. (Bhagat Ram Vs Teja Singh) AIR 2002 S.C. 1

Hindu Succession Act, 1956, S.21 – Applicability – Date of death of one brother known – No definite information as to whether another brother was alive or dead, and if dead, when – There is no evidence to show that both brothers could have died within a particular time – Another brother not entitled to share of deceased brother’s property whose date of death was known – Presumption u/s 21 inapplicable. (Madambath Rohini Vs Devi) AIR 2002 Kerala 192

Hindu Succession Act, 1956, S.24 – Second wife – Lost her chastity by second marriage after death of her husband – Not entitled to any share in properties of deceased husband – Distribution of properties amongst four sons through first marriage and daughter through second marriage of deceased according to law, justice, equity and good conscience consistent with circumstances of case and not according to custom only. (Smt.Lalramchhani Vs Lalthachhungi) AIR 2002 Gauhati 96

Hindu Succession Act, 1956, S.25 – Suicide by husband due to unchaste character of wife, so alleged by mother of deceased – Said evidence proves that husband committed suicide voluntarily – It does not prove that wife committed murder of her husband or abetted commission of murder with aim or object to succeed to property of deceased – There is no statutory bar for wife to inherit to monies due to deceased husband – Hence, wife is entitled or 1/3rd share in monies claimed as class I heir of deceased. (Taila Palli Kasi Visalakshmi Vs Tallapalli) AIR 2004 A.P. 160

Hindu Succession Act, 1956, S.30 – Joint Hindu Family property – Any Hindu may dispose of by Will or other testamentary disposition any property which is capable of being disposed of by him, in accordance with Indian Succession Act, 1925. (Senthilkumar Vs Dhandapani & Ors.) 2005(2) Civil Court Cases 392 (Madras)

Hindu Succession Act, 1956, S.30 Explanation – A coparcener can will away his undivided share in coparcenary. (Mohinder Singh Vs Gurbax Singh) 2005(2) Civil Court Cases 07 (P&H)

Hire Purchase Act, 1972, S.2(c) – Hire purchase agreement or loan agreement – Vehicle purchased in name of customer and ownership of vehicle was with customer – Intention of parties was only to secure payment and label of hire purchase was not conclusive – Transaction is loan transaction and not hire purchase transaction even though described as hire purchase finance agreement. (Tarun Bhargava V. State of Haryana) AIR 2003 P&H 98

Hire Purchase Act, 1972, Ss.19, 17, Sale of Goods Act, 1930, S.4 – Hire purchase agreement – Default in payment of instalments – Under agreement owner to remain as owner till entire hire charges were paid – Seizure of vehicle for non payment of instalment and its sale – Held, owner is entitled to retain the sale price – Amount received therefrom cannot be adjusted towards amount due from hire. (P.V.Sadasivan Vs M/s Industrial Credit & Syndicate Ltd.) AIR 2002 Kerala 207

Hire Purchase agreement – Failure to pay instalments – Bank cannot take over forcible possession as procedure unknown to law cannot be undertaken – Forcible taking possession will lead to serious law and order problem – Police authorities directed to recover vehicle in question from custody of bank and hand over same to petitioner. (Amal Kumar Bose Vs State of West Bengal) AIR 2004 Calcutta 148

Hire purchase agreement – Failure to pay instalments – Forcible taking possession of vehicle – Bank cannot undertake procedure unknown to law and take possession forcibly by flexing muscle power – It will lead to a serious law and order problem – Police authorities directed to recover vehicle from custody of bank and hand over same to petitioner. (Amal Kumar Bose Vs State of West Bengal) 2004(3) Civil Court Cases 564 (Calcutta)

Hire purchase agreement – Failure to pay instalments – Vehicle taken into possession and sold – Suit for recovery of the balance amount – Held, when vehicle is repossessed without terminating hire purchase agreement and without intimating the hirer about the intention to sell and sale is effected absolutely in a haphazard manner then plaintiff is not entitled to claim any relief in the suit. (Business Bankers Vs Anandan) 2005(1) Civil Court Cases 800 (Kerala)

Hire purchase agreement – Non payment of instalments – Taking forcible possession of vehicle – General guidelines issued viz (a) The finance companies must inform the hirers regarding the details of instalments due and payable by a written communication; (b) Even before repossession another written notice must be sent to the hirers and only thereafter the vehicles be repossessed; (c) Finance companies are restrained from stopping the running vehicles on the roads and forcibly pulling out the driver and take possession of the vehicle against all provisions of law. (Dr.Amitabh Varma Vs The Commissioner of Police) 2003(2) Criminal Court Cases 56 (Delhi) 

House tax – Annual letting value – When standard rent not ascertainable then alternative method of finding out the standard rent is ‘Contractor’s method’ under which the market value of the land has to be ascertained and reasonable return fixed thereupon to determine the standard rent. (Municipal Corporation of Greater Mumbai & Anr. Vs Kamla Mills Ltd.) 2003(2) Apex Court Judgments 287 (S.C.) : 2003(3) Civil Court Cases 529 (S.C.) 

House tax – Annual letting value – Where Municipal Act requires determination of the annual value, that Act has to be read along with Rent Restriction Act which provides for the determination of fair rent or standard rent – Rateable value cannot be more than the fair or standard rent which can be fixed under the rent Control Act. (Municipal Corporation of Greater Mumbai & Anr. Vs Kamla Mills Ltd.) 2003(2) Apex Court Judgments 287 (S.C.) : 2003(3) Civil Court Cases 529 (S.C.) 

House-tax – Annual rental value – Amendment of assessment list – Notice required to be given to any person ‘affected by the amendment’ – It is lessor who is to be affected by the increase and not the lessee – Notice to lessee is not required to be given. (Punjab Municipal Corporation Act, S.103(2). (Shiv Pal Sagar Vs State of Punjab) 2003(3) Civil Court Cases 307 (P&H) 

House-tax – Annual rental value – Assessment for the first time or increase in rateable value of land or building – Notice required to be given to owner or to lessee or to occupier – Notice can be issued to any one and it is not necessary to issue notice to all. (Punjab Municipal Corporation Act, S.101(3). (Shiv Pal Sagar Vs State of Punjab) 2003(3) Civil Court Cases 307 (P&H) 

Housing – Co-operative Housing Society – Allotment of tenement to a member of society – Appellant was promoter member and architect by profession – In lieu of services rendered to society by appellant, a sum of Rs.4300/- was adjusted towards price of tenement and that amount was earlier in time than that of respondent – Said adjustment was part payment towards price of tenement – Held, appellant is entitled to  preference in allotment of tenement. (Narayan Dadu Narayankar Vs Chandabai B.Sonawane & Ors.) 2003(1) Apex Court Judgments 111 (S.C.)

Immoral Traffic (Prevention) Act, 1956, Ss.13(1), 13(2) and 2(i) – Offence – Investigation – Must be by Police Officer not below rank of Inspector who has been specially appointed for area – Investigation by Sub Inspector who is not Police Officer for dealing with such offences in area is illegal – No prosecution can be laid on basis of such investigation – Proceeding quashed. (M.Rajeswari Vs State) 2002(1) Criminal Court Cases 70 (Kant.)

Immoral Traffic (Prevention) Act, 1956, Ss.14 & 15 – Search – Sub Inspector of Police is not an officer competent to conduct search u/s 15 – It is Special Police Officer or Trafficking Police Officer who is competent to conduct search. (Sinu Sainudheen Vs Sub Inspector of Police) 2002(2) Criminal Court Cases 358(2) (Kerala)

Income Tax Act, 1961, S.148 – Notice – Service on Accountant – Now shown that Accountant was duly authorised to receive the notice – Held, service of notice is not proved. (Income Tax Officer, Ward 1(2), Jalandhar Vs Mukesh Kumar) 2002(1) Criminal Court Cases 587 (P&H)

Income Tax Act, 1961, Ss.276(c), 277, 278-E – Income tax – Evasion – Offence by company – Managing Director and Company found liable – Fine of Rs.5,000/- imposed as company is a juristic person and cannot be committed to imprisonment – Managing Director convicted and sentenced till rising of Court and pay fine of Rs.10,000/- taking lenient view as accused is 86 years of age. (Income Tax Officer Vs M/s.Kamra Trading Company, Abohar) 2004(3) Criminal Court Cases 392 (P&H)

Income Tax Act, 1961, Ss.276(c), 277, 278-E – Income tax – Evasion – Offence by company – Sleeping partner – No evidence that sleeping partner ever signed any document relating to business of company – Acquittal upheld. (Income Tax Officer Vs M/s.Kamra Trading Company, Abohar) 2004(3) Criminal Court Cases 392 (P&H)

Income Tax Act, 1961, Ss.276(c), 277 – Income tax – Evasion – Accused purchased Bank Draft for Rs.1.35 lakhs but no entry made in account books – Accused is guilty of concealment of income. (Income Tax Officer Vs M/s.Kamra Trading Company, Abohar) 2004(3) Criminal Court Cases 392 (P&H)

Income Tax Act, 1961, Ss.276(c) and 277 – Concealment of income – Failure to prove that concealment was wilful – Acquittal upheld. (Income Tax Officer, Special Circle-III, Jalandhar Vs M/s.Jagdish Ram Manak Chand Jain & Ors.) 2004(2) Criminal Court Cases 104 (P&H)

Income Tax Act, 1961, Ss.276(c) and 278(b) – Income-tax return – Concealment – Order of assessment on which prosecution was based set aside in Appeal – Not a ground to quash criminal proceedings. (M/s Gheru Lal Bal Chand Vs Income Tax Officer) 2003(3) Criminal Court Cases 316 (P&H) 

Income Tax Act, 1961, Ss.276-C, 277 and 278 – Company – Evasion of Income-tax – Company a juristic person cannot be made to undergo imprisonment – Prosecution thus cannot be launched against company. (The Assistant Commissioner, Assessment-II, Bangalore & Ors. Vs M/s Velliappa Textiles Ltd. & Ors.) 2003(2) Apex Court Judgments 567 (S.C.) : 2003(3) Criminal Court Cases 692 (S.C.) 

Income Tax Act, 1961, Ss.276-C, 277 and 278 – Company – Evasion of Income-tax – Company can be prosecuted though Company is a juristic person and cannot be sent to jail to undergo imprisonment – Punishment of fine alone can be awarded to company. (Per G.P.Mathur, J. – Minority view). (The Assistant Commissioner, Assessment-II, Bangalore & Ors. Vs M/s Velliappa Textiles Ltd. & Ors.) 2003(2) Apex Court Judgments 567 (S.C.) : 2003(3) Criminal Court Cases 692 (S.C.) 

Income Tax Act, 1961, Ss.276-C, and 279(2) – Company – Evasion of Income-tax – Sanction for prosecution of company by Income-tax Commissioner – No prior opportunity of hearing is required to be given to accused. (The Assistant Commissioner, Assessment-II, Bangalore & Ors. Vs M/s Velliappa Textiles Ltd. & Ors.) 2003(2) Apex Court Judgments 567 (S.C.) : 2003(3) Criminal Court Cases 692 (S.C.) 

Income Tax Act, 1961, Ss.276-CC and 148 – Income-tax return – Delay – There must be wilful failure to furnish return in time after service of notice u/s 148 of the Act – Service of notice is a condition precedent before proceeding to punish the assessee under the aforesaid provision. (Income Tax Officer, Ward 1(2), Jalandhar Vs Mukesh Kumar)  2002(1) Criminal Court Cases 587 (P&H)

Income Tax Act, 1961, Ss.277 and 278-B, Criminal Procedure Code, 1973, S.482 – False income tax return by firm – Punishment provided is that of imprisonment and there is no provision for sentencing the accused to pay fine – Proceedings against firm quashed as firm cannot be sentenced to undergo imprisonment – Juristic person like a firm cannot be awarded punishment of imprisonment. (Hardayal Singh Vs Income Tax Officer) 2004(3) Criminal Court Cases 468 (P&H)

Income Tax Act, 1961, Ss.278(B) and 276(c) – Income-tax return – Concealment – Prosecution of partners of firm – Prosecution against petitioners quashed as there was no specific averment against them that they were incharge and responsible to the firm for conduct of its business – Only averment that they are partners is not enough to continue proceedings against them. (M/s Gheru Lal Bal Chand Vs Income Tax Officer) 2003(3) Criminal Court Cases 316 (P&H)

Indian Forest Act, 1927, Ss.52(3) and 68 (as amended by Bihar Act 9 of 1990) – Seizure of property liable to confiscation – Power to compound offences – Seizure of vehicle involved in forest offence – Such vehicle cannot be released on payment of fine in lieu of confiscation – Under S.68 the vehicle liable for confiscation can be released on payment of value of the vehicle. (State of Jharkhand Vs Govind Singh) 2005(1) Criminal Court Cases 616 (S.C.)

Indian Passport Act, S.3 – Cloth made in Pakistan recovered from accused when they crossed border – No eye witness produced who could show that he saw the accused crossing Indo-Pak border – No offence under Pass Port Act is made out – Conviction set aside. (Aad Lal Vs State of Punjab) 2003(3) Criminal Court Cases 34 (P&H) 

Indian Railways Act, 1890, Ss.73, 74 – Short delivery of goods – Compensation – Even if loss is proved to have been caused due to any of the reasons enumerated in sub-sections (a) to (i) of S.73, the railways will remain liable until it proves use of reasonable care – In case the railway does not plead use of reasonable fore-sight and care, protection is not available. (Fertilizer Corporation of India Ltd. Vs Union of India & Anr.) 2004(2) Civil Court Cases 227 (P&H)

Indian Railways Act, 1890, Ss.73 & 74 – To take benefit u/s 74 of the Act Railway administration must plead and prove that both railway risk and the owner’s risk rate were available to the consignor – Failure to plead and prove that two rates of tariff have been provided  then Railway is liable in terms of general responsibility as a carrier of goods and the damage, loss or destruction of the goods can be attributed to the negligence or misconduct on the part of the Railway without requiring the plaintiff to further prove the specific act or omission of the railway servants concerned constituting negligence or misconduct. (Fertilizer Corporation of India Ltd. Vs Union of India & Anr.) 2004(2) Civil Court Cases 227 (P&H)

Indian Railways Act, 1890, S.74 – Claim of defence available u/s 74 – It is for the railway administration to prove that the goods were booked at owner’s risk, if they want to plead the defence available to them u/s 74 of the Act. (Fertilizer Corporation of India Ltd. Vs Union of India & Anr.) 2004(2) Civil Court Cases 227 (P&H)

Indian Railways Act, 1890, S.78(c)(ii) – Short delivery of goods – Compensation – Loss caused during strike period – In absence of evidence that loss was caused by the strike it cannot be presumed that loss during strike period was caused by the strike. (Fertilizer Corporation of India Ltd. Vs Union of India & Anr.) 2004(2) Civil Court Cases 227 (P&H)

Indian Succession Act, 1925, Ss.63 & 70 – Will – Codicil of Will – Revocation or modification of Will by way of codicil – Standard of proof of execution of a codicil are the same as are applicable to execution of a Will. (Bhagat Ram & Anr. Vs Suresh & Ors.) 2004(2) Civil Court Cases 297 (S.C.)

INDIRA VIKAS PATRA – Loss of – Criminal complaint filed – All Post Offices informed regarding misplaced or stolen certificates – All details as to registration number, date of issuance etc. given by claimant to postal authorities – Certificates not encashed by anybody else even after date of maturity – Claim of encashment cannot be denied on ground of non presentation of certificates. (Narednrabhai Shankarlal Joshi Vs Post Master General, Gujarat) AIR 2002 Gujarat 180

INDIRA VIKAS PATRA – Loss of – Criminal complaint filed – Encashment pending for many yeas – Postal authorities technically justified in withholding payment – Claim for encashment allowed by High Court – Claim for interest at rate of 15% p.a. on amount of payment, however, held not justified. (Narednrabhai Shankarlal Joshi Vs Post Master General, Gujarat) AIR 2002 Gujarat 180

Industrial Disputes Act, 1947, S.3(k)(i) – Prosecution under Insecticides Act – Sanction for prosecution of firm is bad – Sanction should be against every individual and not against a firm which is not a legal entity – Accused acquitted. (Mukhtiar Singh & Ors. Vs State of Punjab) 2002(3) Criminal Court Cases 663 (P&H) 

Industrial Disputes Act, 1947, Ss.3(k)(1), 17, 18 & 33 – Insecticide – Sample found to be misbranded – Licence of accused revoked – Departmental Authority restored the licence holding that dealer was entitled to protection available u/s 30(3) of the Act – After that criminal prosecution cannot continue – Complaint quashed. (M/s Dashmesh Pesticides Vs State of Punjab) 2003(3) Criminal Court Cases 342 (P&H) 

Industrial Disputes Act, 1947, Ss.3(k)(1) and 17 – Sample drawn from sealed contained and there was no tampering with the seal – Accused selling insecticides and pesticides of registered and licensed manufacturer under the sealed and packed conditions – Criminal proceedings set aside. (M/s Sat Pal Raj Pal Vs State of Punjab) 2002(1) Criminal Court Cases 349 (P&H)

Industrial Disputes Act, 1947, Ss.3(k)(1) and 30(3) – Insecticide – Sample found to be misbranded – Licence of accused cancelled – Criminal prosecution launched – Departmental Appellate Authority restored the licence giving protection of S.30(3) – Thereafter criminal proceedings cannot continue – Proceedings quashed. (M/s S.S.Aggarwal & Co. & Ors. Vs State of Punjab) 2003(3) Criminal Court Cases 253 (P&H) 

Industrial Disputes Act, 1947, Ss.3(k)(i), 17, 18, 29 & 33 r/w Insecticides Rules, 1971, R.27(5) – Insecticide – Sample found to be misbranded – Sanction for prosecution – Issued without application of mind – Sanction made no reference as to when the sample had been taken and how the same had been found to be misbranded – Complaint quashed, but liberty given to authority to issue fresh sanction in accordance with law. (M/s.Hindustan Pulverising Mills Vs State of Punjab) 2002(1) Criminal Court Cases 483 (P&H)

Industrial Disputes Act, 1947, Ss.3(k)(i), 17, 18, 29 & 33 r/w Insecticides Rules, 1971, R.27(5) – Insecticide – Sample found to be misbranded – Sanction for prosecution of Firm granted – Managing Director cannot be prosecuted as his name was not there in the sanction. (M/s.Hindustan Pulverising Mills Vs State of Punjab) 2002(1) Criminal Court Cases 483 (P&H)

Industrial Disputes Act, 1947, Ss.3(k)(i), 17, 18, 29 and 30(3), 15 – Insecticide – Found to be misbranded – Licence of dealer cancelled – Appellate Authority of Department restored licence by giving protection of S.30(3) to accused – Criminal prosecution for contravention of same provision quashed. (M/s.Kissan Sales Corporation Vs State of Punjab)    2003(3) Criminal Court Cases 445 (P&H) 

Industrial Disputes Act, 1947, Ss.3(k)(i) and 31 – Insecticide – Sub standard – Prosecution cannot be launched against a person against whom sanction was not obtained. (V.K.Pahwa Vs State of Punjab) 2002(2) Criminal Court Cases 3 (P&H)

Industrial Disputes Act, 1947, S.11-A – Management lost confidence in the employee – Labour Court itself came to this conclusion – Held, Labour Court has no jurisdiction to alter or reduce the punishment. (Bharat Heavy Electricals Ltd. Vs M.Chandrasekhar Reddy & Ors.) 2005(1) Apex Court Judgments 257 (S.C.)

Industrial Disputes Act, 1947, S.25-F, Civil Procedure Code, 1908, S.11 – Respondents employed on daily wages in a scheme – Employment commenced in 1993 and service terminated in 1996 – Writ petitions filed for regularisation – Relief was denied holding that life of scheme had come to an end – Appeal dismissed by Division Bench – Reference before Labour Court – Termination order set aside on ground that having worked for more than 240 days provision of S.25-F of the Act were required to be complied with – Award upheld in writ and appeal – Held, relief prayed before Labour Court was barred by res judicata. (Executive Engineer ZP Engg. Div. & Anr. Vs Digambara Rao etc. etc.) 2004(2) Apex Court Judgments 650 (S.C.)

Industrial Disputes Act, 1947, Ss.14, 15 and 30(3) – Insecticide – Sample taken from dealer from original packing of manufacturer – Sample found to be misbranded – Licence of dealer revoked – Departmental Appellate Authority exonerated the accused and restored his licence giving benefit of S.30(3) – Criminal proceedings quashed. (M/s.Tilak Ram Devi Dayal Vs State of Punjab) 2003(3) Criminal Court Cases 458 (P&H) 

Industrial Disputes Act, 1947, Ss.21, 24, 29, 30 – Complaint – Filed after expiry of life of insecticide – Request of manufacturer for re-testing of sample refused – Date of expiry of sample very much material – Valuable right of accused lost – Proceedings quashed. (M/s.Hindustan Palvarising Mills Vs The State of Rajasthan) 2002(3) Criminal Court Cases 701 (Rajasthan) 

Industrial Disputes Act, 1947, S.24 – Expiry of shelf life by the time complaint filed – Appellant had within time sent his intimation to lead evidence against State Analyst Report to get the sample examined – Appellant lost his right to get the sample examined by the Central Insecticides Laboratory as such continuation of prosecution will be futile exercise. (M/s.Gupta Chemicals Pvt. Ltd. Vs State of Rajasthan) 2003(1) Criminal Court Cases 157 (S.C) 

Industrial Disputes Act, 1947, S.24 – Insecticide – Reanalysis – Deputy Director of Agriculture had authority to send second sample for reanalysis on request of accused. (M/s Goel & Co.etc. Vs State of Haryana) 2003(3) Criminal Court Cases 286 (P&H) 

Industrial Disputes Act, 1947, S.24(4) – Insecticide – Sample found to be misbranded – Accused informed Insecticide Inspector that third part of sample be sent to Central Insecticide Laboratory which was not done – Shelf life of sample expired by the time challan filed in Court – Held, accused is deprived of his valuable right to seek re-analysis of the third part of the sample from Central Insecticides Laboratory – Complaint quashed. (M/s.Montari Industries Ltd. Vs State of Punjab) 2003(3) Criminal Court Cases 554 (P&H) 

Industrial Disputes Act, 1947, Ss.24(3) – Sample – Re-test of the part of sample – Petitioner has the option to make a request to the Inspector or the Court – Contention that a request should have been made to Court is not tenable. (M/s.Jai Shri Agro Industries Limited) Vs State of Punjab) 2003(1) Criminal Court Cases 608 (P&H) 

Industrial Disputes Act, 1947, Ss.24(3) and 3(k), Insecticides Rules, 1971, Rule 27 – Insecticide – Sample found to be substandard by Quality Control Laboratory – Second sample not sent to Central Laboratory for re-test though accused made a request to Inspector – Challan put up – When accused was summoned, shelf life had expired – Accused deprived of his statutory right to get the sample re-tested – Proceedings  quashed. (M/s.Jai Shri Agro Industries Limited Vs State of Punjab) 2003(1) Criminal Court Cases 608 (P&H) 

Industrial Disputes Act, 1947, Ss.24(4), 29 – Complaint filed after expiry of shelf life of product – Right of accused to have sample retested lost – Directors of company not stated to be in overall control of affairs of company and not clear how offence by them committed – No use continuing proceedings – Proceedings quashed. (M/s United Phospherus Ltd. Vs The State of Rajasthan) 2002(3) Criminal Court Cases 682 (Rajasthan) 

Industrial Disputes Act, 1947, Ss.24(4) and 3b(1) – Insecticide – Sample found to be misbranded by Public Analyst – Second sample sent to Central Laboratory before expiry of shelf life but no evidence that it was analysed before expiry of shelf life – Complaint quashed. (Dr.Balkishan Ginde  Vs State of Punjab) 2003(1) Criminal Court Cases 313 (P&H) 

Industrial Disputes Act, 1947, S.25F – False certificate – Termination of service – Effect of judgment of acquittal – A judgment of acquittal passed in favour of employee by giving benefit of doubt per se is not binding upon the employer. (Manager, R.B.I., Bangalore Vs S.Mani & Ors.) 2005(1) Apex Court Judgments 580 (S.C.)

Industrial Disputes Act, 1947, S.25F – Number of days of work put in by the workman in broken periods, cannot be taken as a continuous employment for the purpose of Section 25F of Industrial Disputes Act. (D.G.M., Oil & Natural Gas Corpn. Ltd. & Anr. Vs Ilias Abdulrehman) 2005(1) Apex Court Judgments 314 (S.C.)

Industrial Disputes Act, 1947, S.25F – Retrenchment – Continuous service of 240 days – Burden of proof – Fact that workmen completed 240 days of service have to be initially proved by workmen. (Manager, R.B.I., Bangalore Vs S.Mani & Ors.) 2005(1) Apex Court Judgments 580 (S.C.)

Industrial Disputes Act, 1947, S.25F – Ticca Mazdoors – Status of – Ticca Mazdoors cannot be regarded as regular mazdoors – Service of Ticca Mazdoors being not permanent in nature can be dispensed with subject to compliance of the statutory or contractual requirements, if any – Their status is not higher than that of a temporary workman or a probationer. (Manager, R.B.I., Bangalore Vs S.Mani & Ors.) 2005(1) Apex Court Judgments 580 (S.C.)

Industrial Disputes Act, 1947, S.25F – Ticca Mazdoors – Termination of service – Forged and fabricated documents submitted – Criminal Court acquitted them – Workman did not take oath to state that he has worked for 240 days – No document produced to prove this fact – Plea cannot be said to be admitted by doctrine of non traverse. (Manager, R.B.I., Bangalore Vs S.Mani & Ors.) 2005(1) Apex Court Judgments 580 (S.C.)

Industrial Disputes Act, 1947, Ss.25(F), (G) and (H) – Service – Termination – Workman rendered work of 240 days during preceding 12 months – Claim refuted – It is for the claimant to prove that he had in fact worked upto 240 days in the year preceding his termination – Affidavit of employee is not sufficient evidence – Mere non production of muster roll for a particular period is not sufficient for Labour Court to hold that the workman had worked for 240 days as claimed – No definite finding was recorded on the stand of employer that engagement was made for temporary needs and was seasonal in character – Matter needs to be remanded. (Rajasthan State Ganganagar S.Mills Ltd. Vs State of Rajasthan & Anr.) 2005(1) Apex Court Judgments 154 (S.C.)

Industrial Disputes Act, 1947, Ss.29, 3k(i), Criminal Procedure Code, 1973, S.468 – Offence under Insecticides Act – Punishment prescribed is two years under S.29(1) – Limitation to file complaint is 3 years – Complaint filed after four years – Complaint and summoning order quashed. (M/s.Kheti Sewa Centre, Ludhiana Vs State of Punjab) 2003(1) Criminal Court Cases 665 (P&H) 

Industrial Disputes Act, 1947, S.29, Cr.P.C., 1973, S.468 – Order of reinstatement – Non compliance – It is a continuing offence – Embargo placed under S.468 Cr.P.C. in the matter of limitation is not applicable. (Management of M/s Peerless General Finance Vs Jugal Kishore) 2002(2) Criminal Court Cases 611 (Orissa)

Industrial Disputes Act, 1947, Ss.30(3), 15 – Insecticide – Sample taken from original packed container found to be misbranded – Departmental authority found that accused was entitled to benefit of S.30(3) – Under such circumstances, proceedings quashed. (M/s Satyug Pesticides Vs State of Punjab) 2003(3) Criminal Court Cases 229 (P&H) 

Industrial Disputes Act, 1947, Ss.30(3) & 15, Insecticides Rules, 1971, R.27 – Insecticide – Sample found to be misbranded – Sample was taken from original packed container of manufacturer – Departmental Authority ordered that accused was entitled to protection of S.30(3) of the Act as sample was taken from original packed container – Criminal proceedings quashed. (M/s.Janta Kheti Store & Anr. Vs State of Punjab) 2003(3) Criminal Court Cases 384 (P&H) 

Industrial Disputes Act, 1947, Ss.30(3) and 29(1)A – Sample drawn in its original packing from dealer who had purchased the insecticide from the manufacturer – Sample found to be misbranded – No evidence that accused tampered the sample or not stored it in proper condition or had any other source of information about misbranding – Proceedings against petitioner quashed. (Smt.Gurdarshan Kaur Vs State of Punjab) 2003(1) Criminal Court Cases 641 (P&H) 

Industrial Disputes Act, 1947, Ss.30(3) and 3(k)(i), Insecticide Rules, 1971, R.27 – Purchase of insecticide by dealer from Manufacturer and sold in same condition – Sample found to be misbranded – No averment in the complaint that there was tampering with packing or that the packings had not been properly stored – These are questions of fact to be proved during trial for which onus lies on the person from whom sample was purchased – Proceedings not quashed. (M/s Joginder Chawla Vs State of Punjab) 2003(1) Criminal Court Cases 260 (P&H) 

Industrial Disputes Act, 1947, Ss.30(3)(k)(i) and 33 – Insecticide – Sample found to be misbranded – Insecticide was in a sealed packing – No allegation in complaint that petitioner did not properly store the insecticide in the same state as it was acquired by him from the manufacturer – Criminal proceedings quashed. (M/s.Dhaliwal Agro Centre, Ludhiana Vs State of Punjab) 2002(1) Criminal Court Cases 430 (P&H)

Industrial Disputes Act, 1947, S.33(2)(b) – Dismissal from service – Inquiry Officer upon consideration of materials on record found the respondent guilty of misconduct and respondent dismissed from service – Industrial Tribunal refused to grant approval holding that domestic enquiry conducted cannot be considered as fair and proper and the same vitiated on account of failure of Enquiry Officer to observe principles of natural justice – Held, jurisdiction of Industrial Tribunal u/s 33(2)(b) is limited – Probative value of evidence showing extensive damages caused to bus and nature of impact demonstrates that the vehicle was driven rashly or negligently – Having regard to the available material, Industrial Tribunal should have granted approval of the order of punishment passed by the Appellant. (Cholan Roadways Ltd. Vs G.Thirugnansambandam) 2005(1) Apex Court Judgments 418 (S.C.)

Information Technology Act, 2000, S.67, Indecent Representation of Women (Prohibition) Act, 1986, S.6, Immoral Traffic (Prevention) Act, 1956, Ss.5 & 6, Criminal Procedure Code, 1973, Ss.407 & 409 – Offence relating to exploitation of certain men and women for the purpose of making pornographic photos and videos in various acts of sexual intercourse – Case tried by Court presided by lady Judge – Transfer of case – Case cannot be transferred to Court presided by male Judge on ground that viewing of pornographic CDs in presence of male witnesses would embarrass lady Presiding Officer – Embarrassment is a state of mind which is more individual-related than related to the sex of a person – It is but natural that any decent person would be embarrassed while considering the evidence in a case like this but this embarrassment cannot be attributed to a lady Officer only – A Judicial Officer be it a female or male is expected to face this challenge when the call of duty required it – If situation requires the Presiding Officer may make such adjustments/arrangements so as to avoid viewing the CDs in the presence of male persons. (Fatima Riswana Vs State Rep. by A.C.P., Chennai & Ors.) 2005(1) Criminal Court Cases 672 (S.C.)

Information Technology Act, 2000, S.93, Banker’s Books (Evidence) Act, 1891, S.4 – Amended provision is applicable to printouts taken out from accounts maintained with aid of computer and not to books of accounts maintained by plaintiff in regular course of business manually. (SICOM Ltd. Vs Harjidnersingh) AIR 2004 Bombay 337

Ink – Age – Cannot be determined on the basis of the writing – Ink if manufactured five years before the date of the execution of the document then instead of resolving the controversy it would create confusion. (Civil Procedure Code, 1908, O.26.R.10-A). (Yash Pal Vs Kartar Singh) 2003(3) Civil Court Cases 630 (P&H) 

Insecticides Act, 1968, Ss.3(A), 17, 18 r/w S.29(1)(A) & Criminal Procedure Code, 1973, S.482 – Offence under Insecticides Act – Sanction for prosecution – Granted mechanically without application of mind – Nothing to show as to how the petitioners were responsible for conduct of business – Petitioners also deprived of their right to get sample analysed – Proceedings quashed. (M/s B.A.S.F. India Ltd. & Ors. Vs State of Rajasthan) 2004(3) Criminal Court Cases 84 (Rajasthan)

Insecticides Act, 1968, S.24(3) – Report signed by Insecticide Analyst – It is evidence of facts stated therein and is conclusive evidence against the accused only if accused do not, within 28 days of the receipt of the report notify in writing to the Insecticides Inspector or the Court that he intends to adduce evidence to controvert the report. (Sandoz (India) Ltd. Vs State of Punjab) 2005(2) Criminal Court Cases 878 (P&H)

Insecticides Act, 1968, S.24(3) – Second sample – Right of accused to get second sample analysed/tested from Central Insecticides Laboratory arises when the summoned accused appears in Court. (Sandoz (India) Ltd. Vs State of Punjab) 2005(2) Criminal Court Cases 878 (P&H)

Insecticides Act, 1968, S.24(3) – Shelf life of sample expired by the time accused appeared in Court – Right of accused to get second sample analysed thus infringed – Proceedings quashed. (Sandoz (India) Ltd. Vs State of Punjab) 2005(2) Criminal Court Cases 878 (P&H)

Insecticides Act, 1968, Ss.24(4), 3(k)(i) and 29 – Insecticide – Second sample sent for reanalyses found to be unfit for analysis as the same was leaking – Dealer and manufacturer thus deprived or valuable right to get second sample reanalysed – Proceedings quashed. (M/s United Pesticides through its Director, Raipur Vs State of Haryana) 2005(2) Criminal Court Cases 573 (P&H)

Insecticides Act, 1968, S.30(3) – Insecticide – Sample found misbranded – License of dealer cancelled – Departmental Appellate Authority Restored the license of the dealer and held that the sample was drawn out of sealed container – When  sample taken from sealed container  is  found to be misbranded  by analyst and departmental authorities restore the license giving protection of section 30(3) of the Act, then criminal proceedings cannot continue – Criminal proceedings qua dealer quashed under section 482 Cr.P.C. (Manesh Kumar Vs State of Punjab ) 2005(2) Criminal Court Cases 859 (P&H)

Insecticides Act, 1968, Ss.30(3) and 3(k)(i) – Weedicide – Sample taken from retailer found to be misbranded – Sample taken was from original packing of manufacturer and stored in the same state – Dealer is entitled to get benefit of protection of S.30 if the substance/sample drawn was in its original condition – Accused acquitted. (M/s.Sidhu Brothers Store Vs State of Punjab) 2005(1) Criminal Court Cases 181 (P&H)

Insecticides Act, 1968, Ss.33, 3(k)(1) and 17 – Vicarious liability – Company – Sample of insecticide found misbranded – Prosecution of Managing Director and Quality Control Officer – Averment that they were responsible persons of company, not enough to hold them guilty – No allegation in complaint that offence in question was committed with the consent or connivance or is attributed to any neglect on the part of the petitioner – Proceedings quashed. (Shabbir Itarsi & Anr. Vs State of Haryana) 2005(2) Criminal Court Cases 558 (P&H)

Insurance Act, 1938, Life insurance claim – Insured met with an accident and went into coma and died after 9 months – Delayed intimation – Does not entitled LIC to avoid policy. (Smt.Sipra Chatterjee Vs Union of India) AIR 2002 Delhi 485

Insurance Act, 1938, Life insurance claim – Insured met with an accident and went into coma and died after 9 months – Permanent disability continued till his death – Liability to pay future premium stood waived as per terms of clause in policy during continuance of disability – Default in payment of premium – Policy could not stand lapsed. (Smt.Sipra Chatterjee Vs Union of India) AIR 2002 Delhi 485

Insurance Act, 1938, Life insurance policy – Insured becoming insane – Claim for payment of sum assured – Not tenable – Sum assured becomes due only in the event of maturity of policy or death of insured person. (Jameela C.K. Vs Life Insurance Corporation of India) AIR 2003 Kerala 298

Insurance Act, 1938, Pre. – Insurance of Motor vehicle for Rs.1,00,000/- – Vehicle stolen – Insurance payable is Rs.1,00,000/- and not market value of vehicle at relevant time. (Vishan Narain Vs Oriental Insurance Company Ltd.) AIR 2002 Delhi 336

Insurance Act, 1938, Pre. – Life insurance – Policy is effective on payment of first premium – First premium paid on 17th and insured died on 20th – His L.R’s are entitled for benefit under policy – Fact that policy was issued later on is immaterial. (Life Insurance Corporation of India Vs Bindu Bal) AIR 2002 J&K 61

Insurance Act, 1938, Pre. – Life insurance policy – Premium – Not payment by employer – Premium was to be deducted from salary of insured by his employer in terms of agreement between employer and Life Insurance Corporation – In such case employer acts an agent of Corporation in terms of Contract Act – Non payment of premium by employer and death of insured thereafter – Held, insurer cannot repudiate claim for fault of employer. (Life Insurance Corporation of India Vs Mukesh Devi) AIR 2002 Rajasthan 404

Insurance Act, 1938, Preamble – Insured vehicle stolen – Copy of insurance policy proved – Held, owner of vehicle is entitled to get entire insured amount as claimed. (Surinder Pal Vs National Insurance Co.Ltd.) AIR 2002 Delhi 208

Insurance Act, 1938, S.45 – Life Insurance Policy – Cannot be called in question after 2 years of its being effected. (Life Insurance Corporation of India Vs State of Rajasthan & Ors.) 2005(1) Civil Court Cases 408 (Rajasthan)

Insurance Act, 1938, S.45 – Life Insurance Policy – Death of insured – Insurer cannot avoid payment by taking plea that insured had not supplied correct information regarding his illness – It is duty of Insurance Company to verify correctness of information furnished by insured. (Life Insurance Corporation of India Vs District Permanent Lok Adalat & Anr.) 2005(1) Civil Court Cases 128 (Rajasthan)

Insurance Act, 1938, S.45 – Insurance policy – Repudiation – Ground of mis-statement of facts regarding health by policy holder – Mis-statement not proved – Insurance Corporation not entitled to repudiate claim. (The branch Manager LIC of India Vs Ambati Laxmamma) AIR 2002 A.P. 479

Insurance Act, 1938, S.46 – Insurance claim – Claim processed by surveyors appointed by Insurance Company – Insurance Company is estopped from repudiating the claim – Writ petition for settlement of claim as per survey reports – Maintainable. (M/s Nand Construction Company Vs Regional Manager, Oriental Insurance Co.)  AIR 2002 Rajasthan 272

Insurance – Damage caused to building and machinery on account of bulldozer driven close to the building on the road for the purpose of road construction – Interpretation of clause in the agreement which reads “Impact by any rail/road vehicle or animal” – Held, clause in the Insurance policy covers the damage caused to the building and machinery due to driving of the bulldozer on the road close to the building. (United India Insurance Co. Ltd. Vs M/s.Pushpalaya Printers) 2004(2) Civil Court Cases 296 (S.C.)

Interest Act, 1978, S.1 – Deposit of minor in Court – Interest – Deposit not released even after attaining majority – Minor is entitled to get interest at rate of 12%. (Subrata Mazumdar Vs The Learned District Judge) AIR 2002 Calcutta 58

Interest Act, 1978, S.2(c) – Judgment Debtor is not covered by the expression ‘Debt’. (Tota Singh Vs Manjit Singh) 2004(2) Civil Court Cases 312 (P&H)

Interest Act, 1978, S.3 – Interest – No evidence as to what was current rate of interest at relevant time – Plaintiff in such case is entitled to interest on outstanding amount on reasonable rate. (S.Butail and Company Vs H.P.State Forest Corp.) AIR 2002 H.P. 1

Interest Act, 1978, Ss.3(1) and 3(3)(a)(ii), Civil Procedure Code, 1908, S.34 – Insurance – Interest – Pre suit interest – If there is stipulation for rate of interest Court must allow that rate subject to three exceptions viz. any provision of law applicable to money lending transactions or usury laws or any other debt law governing the parties and having an overriding effect of any stipulation for payment of interest voluntarily entered into between the parties (ii) If rate is penal, Court must award at such rate as it deems reasonable; and (iii) if rate is not penal, Court may reduce it if the interest is excessive and transaction is substantially unfair – If there is no express stipulation for payment of interest plaintiff is not entitled to interest except on proof of mercantile usage, statutory right of interest or an implied agreement – Interest from the date of suit to date of decree is in the discretion of the Court – Similarly interest from the date of decree to the date of payment or any other earlier date is again in the discretion of the Court to award or not to award or also the rate at which to award – Once suit is filed relationship of parties ceases to be governed by contract between the parties and comes to be governed by S.34 of CPC. (Balwant Kaur Vs Life Insurance Corporation of India) 2005(1) Civil Court Cases 540 (P&H)

Interest – Agreement with Food Corporation of India for shelling rice – Non refund of security – No contract between parties for payment of interest – Held, plaintiff is entitled to interest for unauthorised retaining the amount and its delayed payment – Transaction between plaintiff and Corporation is a commercial transaction – Award of 12% interest, held, not excessive. (Food Corporation of India Vs M/s Mahalakshmi Rice and General Mills) 2005(1) Civil Court Cases 723 (P&H)

Interest – If not allowed on payment due then even a losing party actually wins the case. (Anshuman Singh Vs State of U.P. & Ors.) 2004(3) Civil Court Cases 19 (Allahabad)

Interest – Not a penalty or punishment – It is normal accretion on capital. (Anshuman Singh Vs State of U.P. & Ors.) 2004(3) Civil Court Cases 19 (Allahabad)

Jammu and Kashmir Public Safety Act, 1978, S.13 – Detenu refused to receive the copy of the detention order and also refused to put his signatures on the documents – If affidavit of the person who wanted to serve the relevant documents has been filed, it would have been sufficient compliance of the requirement of S.13 of the Act. (State Legal Aid Committee, J&K Vs State of J&K & Ors.) 2005(1) Criminal Court Cases 405 (S.C.)

Joint Family Property – A deed releasing share of a member in the joint family property, if not registered cannot be acted upon. (Krishnan Namboodiri Vs Unni Maya @ Uma Devi) 2004(2) Civil Court Cases 361 (Kerala)

Joint Hindu Family Property – If partition of such property takes place then married daughters are not entitled to any share equivalent to the sons – Only mother is entitled for the equivalent share to the sons but cannot compel for partition of coparcenary – Married daughters and sisters are not entitled to a share on partition of a coparcenary – However a provision has to be made for the maintenance of unmarried daughters and their marriages. (Dasa Singh Vs Jasmer Singh) 2003(2) Civil Court Cases 372 (P&H) 

Joint Hindu Family Property – There is presumption that every such family which is joint in food, worship and residence is the Joint Hindu Family, but there is no presumption that the properties owned by members of such Joint Hindu Family are the Joint Hindu Family property or that the family possesses joint property – To prove a property in the name of an individual to be a Joint Hindu Family Property two things have to be established i.e. that there is a nucleus of a Joint Hindu Family property and the said property was purchased by the said individual in his name from the said nucleus of the Joint Hindu Family property – The burden to prove that the property owned by a member is Joint Hindu Family rests  upon the party, who so asserts. (Kulwant Singh Vs Makhan Singh) 2003(2) Civil Court Cases 513 (P&H) 

Judicial precedents – Digestive notes and short notes – As there is no narration of facts as such no reliance can be placed on such law reports. (Public Prosecutor, High Court of A.P., Hyderabad Vs Jangili Sammaiah alias Babu) 2005(1) Criminal Court Cases 847 (A.P.)

Judicial precedents – Disposal of case by merely placing reliance on a decision without indicating reasons and applicability of decision to the facts of the case not proper. (Punjab National Bank Vs R.L.Vaid & Ors.) 2005(1) Criminal Court Cases 341 (S.C.)

Jurisdiction – Parties by agreement cannot confer jurisdiction in a Court which does not have jurisdiction – Such an agreement is hit by Ss.23 & 28 of the Contract Act. (Contract Act, 1872, Ss.23 & 28). (Rajana Nagpal alias Ranjana Malik Vs Devi Ram) 2003(2) Civil Court Cases 127 (H.P.) 

Juvenile Justice Act, 1986, S.2(h) determination of age – Relevant date for the applicability of the act – Date of occurrence or the date on which he was produced before competent authority – Accused convicted under section 376 IPC – Plea that the accused was 12 years of age at the time of commission of offence – Plea  raised for the first time in High Court – Held, High Court cannot ignore the same on ground that no such plea was raised in trial Court or in appellate Court – Case remanded. (Md.Somesh Ali Vs State of Assam) 2004(3) Criminal Court Cases 552 (Gauhati)

Juvenile Justice Act, 1986, S.2(h) – Juvenile not raising plea that he was juvenile – Court is not required to determine his age in absence of plea. (Surinder Singh Vs State of U.P.) 2004(1) Criminal Court Cases 72 (S.C.) : 2003(2) Apex Court Judgments 679 (S.C.)

Juvenile Justice Act, 2000, Ss.6(2), 15 & 20 – Juvenile – Plea of – Not raised – Even then every Court is obliged to apply its mind and come to a definite and positive finding about the age of indictee – Juvenile Justice Board alone is competent to deal with law – No Board constituted in the State – Vaccum cannot be permitted to remain – In exercise of power u/s 482 Cr.P.C. Chief Judicial Magistrate in the State appointed to exercise functions of Juvenile Justice Board until Boards are constituted – Section 20 of the Act did not apply as trial was vitiated – Trial set aside – Order as to payment of fine only passed without imposing any default sentence – Fine of Rs.3,000/- imposed upon petitioner. (Girish Vs State of Kerala) 2004(3) Criminal Court Cases 145 (Kerala)

Juvenile Justice (Care and Protection of Children) Act, 2000, Juvenile – Age of accused – In case of variation, in between the medical evidence and the entries in the school register as regards age the latter should be preferred once genuineness of School Leaving Certificate is admitted or is not questioned. (Saalim Vs Union of India) 2003(1) Criminal Court Cases 49 (Allahabad) 

Juvenile Justice (Care and Protection of Children) Act, 2000, Ss.1(3) & 20 – Provisions of the Act are applicable to those cases initiated and pending trial/inquiry for the offences committed under 1986 Act provided that the person had not completed 18 years of age as on 1.4.2001. (Bijender Singh Vs State of Haryana & Anr.) 2005(1) Apex Court Judgments 527 (S.C.) : 2005(2) Criminal Court Cases 553 (S.C.)

Juvenile Justice (Care and Protection of Children) Act, 2000, Ss.2(e) and 3 – Juvenile – Determination of age – Reckoning date for the determination of the age of juvenile is the date of an offence and not the date when he is produced before the Authority or in the Court. (Partap Singh Vs State of Jharkhand & Anr.) 2005(2) Criminal Court Cases 334 (S.C.)

Juvenile Justice (Care and Protection of Children) Act, 2000, S.2(k) – Accused whether Juvenile or not – Date of commission of offence is relevant  and not the date when he was sent for trial. (Sanjeev Kumar Vs State of Haryana) 2003(2) Criminal Court Cases 272 (P&H) 

Juvenile Justice (Care and Protection of Children) Act, 2000, S.2(k) – Juvenile – Crucial date to determine whether the accused is a juvenile or not, is the date on which the offence was committed. (Mahendra Singh Vs State of Rajasthan) 2004(2) Criminal Court Cases 500 (Rajasthan)

Juvenile Justice (Care and Protection of Children) Act, 2000, Ss.2(k), 3, 15(1)(e) and 20 – Conviction – Converted from S.302 to 304 Part II IPC – On the date of incident age of appellant was 16 years 7 months and 21 days – Accused is entitled to benefit of Act 2000 which came into force during pendency of trial – Appropriate course for trial Court was that after recording conviction, matter should have been sent to Juvenile Board for passing appropriate order in terms of Section 15 or 16 of the Act – Fit case in which instead of directing appellant to Juvenile Court, by setting aside the sentence, he be released on probation of good conduct for three years. (Rafiq Khan Vs State of Rajasthan) 2004(2) Criminal Court Cases 634 (Rajasthan)

Juvenile Justice (Care and Protection of Children) Act, 2000, Ss.2(k), 20 & 64, Indian Penal Code, 1860, S.302 – Applicability of Juvenile Justice Act – Relevant date to determine the applicability of the Act is the date of occurrence i.e. the age of the accused as on the date when the crime was committed and not the date of trial. (Charanjit Singh Vs State of NCT of Delhi) 2005(1) Criminal Court Cases 824 (Delhi)

Juvenile Justice (Care and Protection of Children) Act, 2000, Ss.2(k), 20 & 64 – Juvenile Justice Act – Provisions apply not only to pending proceedings but also to those where a juvenile is undergoing sentence on April 1, 2001 –  Proceedings contemplated are proceedings either at the stage of trial or appeal. (Charanjit Singh Vs State of NCT of Delhi) 2005(1) Criminal Court Cases 824 (Delhi)

Juvenile Justice (Care and Protection of Children) Act, 2000, Ss.2(k) and 12 – Juvenile – Age – School record – Is next best evidence in absence of any entry in the office of Registrar, Births and Deaths – No evidence that school record is not genuine – In the absence of independent material, nothing should prevail over the entries in school certificate. (Balkar Singh Vs State of Punjab) 2005(1) Criminal Court Cases 790 (P&H)

Juvenile Justice (Care and Protection of Children) Act, 2000, S.4, Constitution of India, Article 32, Indian Penal Code, 1860, S.302 – Death sentence – Review petition that accused was a juvenile on the date of commission of offence also dismissed by Supreme Court – Petition under article 32 of Constitution of India is not maintainable – Accused can file curative petition. (Zakarius Lakra & Ors. Vs Union of India & Anr.) 2005(2) Criminal Court Cases 137 (S.C.)

Juvenile Justice (Care and Protection of Children) Act, 2000, S.4, Indian Penal Code, 1860, S.302 – Death sentence – Plea of accused that he was juvenile on the date of commission of offence entertained by Supreme Court for the first time. (Zakarius Lakra & Ors. Vs Union of India & Anr.) 2005(2) Criminal Court Cases 137 (S.C.)

Juvenile Justice (Care and Protection of Children) Act, 2000, S.12, Criminal Procedure Code, 1973, S.439, Indian Penal Code, 1860, Ss.376, 452 and 325 – Juvenile – Offence under sections 376, 452 and 325 – Bail – Refused on ground that it will defeat ends of justice – Material in support thereof not produced by prosecution – Bail to a juvenile can only be declined in exceptional circumstances where it appears to Court that release of the juvenile is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice – No such ground existing in the instant case – Petitioner directed to be released on bail. (Ramesh alias Meshu Vs State of Haryana) 2005(2) Criminal Court Cases 216 (P&H)

Juvenile Justice (Care and Protection of Children) Act, 2000, S.12, Criminal Procedure Code, 1973, S.439 – Juvenile – Bail – Normal rule is to grant bail unless juvenile Board comes to conclusion that by release, such a juvenile would come in contract with known criminals or that his life is likely to be in danger. (Dattatray G.Sankne Vs State of Maharashtra) 2003(3) Criminal Court Cases 515 (Bombay) 

Juvenile Justice (Care and Protection of Children) Act, 2000, S.12, Criminal Procedure Code, 1973, S.439(2) – Juvenile – Bail – Cancellation – Juvenile a student of 10th std. – No new grounds made out for cancellation of bail – Juvenile not alleged to have tampered with the evidence or is likely to tamper with the evidence – Investigation not yet over – No case made out for cancellation of bail. (Dattatray G.Sankne Vs State of Maharashtra) 2003(3) Criminal Court Cases 515 (Bombay) 

Juvenile Justice (Care and Protection of Children) Act, 2000, S.12, Indian Penal Code, 1860, S.302, Criminal Procedure Code, 1973, S.439 – Juvenile – Aged 15 years – Girl aged 13 years set on fire as she refused to develop love affairs with him and have wrong things with him – Accused not involved in any other crime and residing with his family – His release will not bring him in bad company or expose him to moral, physical or psychological danger – Merely because he is alleged to have committed a heinous crime, it cannot be said that his release will defeat the ends of justice –  Accused ordered to be released on bail. (Baljinder alias Bantu Vs U.T.Chandigarh) 2005(2) Criminal Court Cases 332 (P&H)

Juvenile Justice (Care and Protection of Children) Act, 2000, S.12 – Accused a boy of 15 years arrested on committing an offence u/ss 392 & 397 IPC – Though he was declared a juvenile by order of Sessions Court but he not sent to observation home and remained behind bar for about three years because of sheer negligence, indifference and inhuman behaviour of authorities – Compensation of Rs.1 lakh awarded – Directions given to the Juvenile Justice Board to release him on his executing personal bond. (Salim Ikramuddin Ansari & Anr. Vs Officer-In-Charge, Borivali Police Station, Mumbai & Ors.) 2005(1) Criminal Court Cases 203(Bombay)

Juvenile Justice (Care and Protection of Children) Act, 2000, S.12 – Juvenile – Bail – Can be refused only on the ground that there are reasonable grounds for believing that the release of the juvenile is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice. (Manmohan Singh  Vs State of Punjab) 2004(3) Criminal Court Cases 502 (P&H)

Juvenile Justice (Care and Protection of Children) Act, 2000, S.12 – Juvenile – Bail – Cannot be denied on ground that offence against him is heinous – Bail to a juvenile can be denied on three grounds (i) if the release is likely to bring him into association with any known criminal; (ii) exposes him to moral, physical or psychological danger and (iii) if his release would defeat the ends of justice – If bail is refused on these grounds Court should record finding as to whether any such grounds exists or not. (Vikky @ Vikram Singh Vs State of U.P.) 2003(2) Criminal Court Cases 712 (Allahabad) 

Juvenile Justice (Care and Protection of Children) Act, 2000, S.12 – Juvenile – Bail – Offence u/ss 323/504/506 and 304 IPC – Bail to a juvenile  can be refused on three grounds viz. (1) if the release is likely to bring him into association with any known criminal (2) Exposes him to moral, physical or psychological danger and (3) If his release would defeat the ends of justice – Offence being of heinous nature is no ground to decline bail – Bail allowed. (Pankaj Vs State of U.P.) 2003(2) Criminal Court Cases 310 (Allahabad) 

Juvenile Justice (Care and Protection of Children) Act, 2000, S.12 – Juvenile – Bail – Petitioner arrested while carrying 1118 Kg. ‘Chura of Doda Post’ in his own truck – Bail application rejected by trial Court – Held, where accused is engaged in smuggling activity, possibility of his being joining gang and repeating offence could not be ruled out – Release of accused on bail in such a case is bound to defeat the ends of justice – No interference is warranted. (Jaif Ahmed Sheikh Vs State of Rajasthan) 2004(4) Criminal Court Cases 570 (Rajasthan)

Juvenile Justice (Care and Protection of Children) Act, 2000, S.12 – Juvenile – Murder – Bail – Bail to a juvenile is mandatory – Bail to him can only be declined if there are reasonable grounds for believing that his release is likely to bring him in association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice. (Balkar Singh Vs State of Punjab) 2005(1) Criminal Court Cases 790 (P&H)

Juvenile Justice (Care and Protection of Children) Act, 2000, S.12 – Juvenile – Murder – Merely because petitioner is alleged to have caused injuries to the deceased by sharp edged weapon, he cannot be denied the benefit of bail. (Manmohan Singh  Vs State of Punjab) 2004(3) Criminal Court Cases 502 (P&H)

Juvenile Justice (Care and Protection of Children) Act, 2000, S.12(1), 52 – Juvenile – Bail – Juvenile involved in case under NDPS Act – Bail to Juvenile can be refused in case juvenile is likely to come into association with any known criminal – Mother of juvenile involved in two cases under NDPS Act, one in Court and another under investigation – Mother of juvenile comes under category of a known criminal – Bail to juvenile rightly refused. (Hamid @ Abdul Hamid Vs The State of Rajasthan) 2002(3) Criminal Court Cases 512 (Raj.) 

Juvenile Justice (Care and Protection of Children) Act, 2000, S.12(1) – ‘Known criminal’ – Meaning – Does not mean known convict – Person against whom one criminal case is pending trial and another under investigation, is known criminal. (Hamid @ Abdul Hamid Vs The State of Rajasthan) 2002(3) Criminal Court Cases 512 (Raj.) 

Juvenile Justice (Care and Protection of Children) Act, 2000, Ss.12, 52, Criminal Procedure Code, 1973, S.439 – Juvenile – Bail – Can if refused if juvenile after release on bail is likely to come in association with any known criminal or his release on bail would expose him to moral, physical or psychological danger or that his release would defeat the ends of justice. (Atul Kumar & Anr. Vs State of Haryana) 2003(3) Criminal Court Cases 635 (P&H) 

Juvenile Justice (Care and Protection of Children) Act, 2000, Ss.12, 52, Criminal Procedure Code, 1973, S.439 – Juvenile – Bail – Court can refuse bail if parents of juvenile are also criminals either ex-convicts or members of a gang – Bail may also be refused if juvenile repeats the crime. (Atul Kumar & Anr. Vs State of Haryana) 2003(3) Criminal Court Cases 635 (P&H) 

Juvenile Justice (Care and Protection of Children) Act, 2000, S.15 – Determination of age – Has to be with reference to date of commission of offence. (Pankaj Kumar Vs State of Bihar) 2003(1) Criminal Court Cases 391 (Patna) 

Juvenile Justice (Care and Protection of Children) Act, 2000, S.15(6)(ii) – Juvenile – State of Maharasthra directed that if an accused appears or asserts to be juvenile then concerned person shall be produced before the trial Court at the earliest opportunity, to ascertain, whether he is a juvenile or not. (Umesh Dukhan Mandal, Pune Vs State of Maharashtra & Anr.) 2004(3) Criminal Court Cases 740 (Bombay)

Juvenile Justice (Care and Protection of Children) Act, 2000, S.15(6)(ii) – Murder – Petitioner found to be 15 years of age on date of offence – Petitioner is entitled to benefit of S.15(6)(ii) of the Act – Petitioner directed to be released forthwith. (Umesh Dukhan Mandal, Pune Vs State of Maharashtra & Anr.) 2004(3) Criminal Court Cases 740 (Bombay)

Juvenile Justice (Care and Protection of Children) Act, 2000, Ss.15, 16 & 20, Indian Penal Code, 1860, S.302 – Juvenile – Murder – Accused below 18 years at time of commission of offence – Accused convicted u/s 302 IPC – Procedure prescribed under S.20 Juvenile Justice not followed – Accused should have been dealt with by Juvenile Board – Conviction upheld but case remitted to Sessions Judge with direction to forward accused to Juvenile Board which shall pass order in view of Ss.15 & 16 of Juvenile Justice Act. (Babloo & Ors. Vs State of Rajasthan) 2004(4) Criminal Court Cases 451 (Rajasthan)

Juvenile Justice (Care and Protection of Children) Act, 2000, S.20 – Age – Below 18 years as per School Leaving Certificate – School Leaving Certificate not based on Admission register – Age not believed – Radiological examination relied upon which gave age as above 21 years. (Lal Bahadur Vs The State) 2004(4) Criminal Court Cases 372 (Delhi)

Juvenile Justice (Care and Protection of Children) Act, 2000, S.20 – Applicability of provision to pending cases – For its applicability it must be established that (i) on the date of coming into force the proceedings in which the petitioner was accused was pending; and (ii) on that day he was below the age of 18 years. For the purpose of the said Act, both the aforementioned conditions are required to be fulfilled. (Partap Singh Vs State of Jharkhand & Anr.) 2005(2) Criminal Court Cases 334 (S.C.)

Juvenile Justice (Care and Protection of Children) Act, 2000, S.20 – Juvenile – Conviction u/s 302, 452 & 324/34 IPC – Enquiry by Additional Sessions Judge on basis of School Certificate revealed that appellant was 17 years 10 months and 28 days on date of incident – Criminal Appeal comes within definition of pending cases & appeal is to be dealt with in accordance with provisions of the Act – Conviction confirmed but sentence set aside and case remitted to be dealt with by Juvenile Board. (Mahendra Singh Vs State of Rajasthan) 2004(2) Criminal Court Cases 500 (Rajasthan)

Juvenile Justice (Care & Protection of Children) Act, 2000, Ss.20, 64 and 2(k), Juvenile Justice Act, 1986, S.3, Indian Penal Code, 1860, S.302 – Juvenile – Murder – Accused at that time was above 16 years but below 18 years and thus was not a juvenile under old Act but came within definition of juvenile under New Act – Provisions of S.20 of new Act will apply – If Court finds that juvenile has committed an offence then instead of passing any sentence, he will be forwarded to Board which shall pass orders in accordance with provisions of new Act. (Sanjeev Kumar Vs State of Haryana) 2003(2) Criminal Court Cases 272 (P&H) 

Juvenile Justice (Care & Protection of Children) Act, 2000, S.49 – Juvenile – Age – School admission form – Form not submitted by parents of juvenile but by ‘B’ whose identity not on record – ‘B’ not examined – Parents also not examined – Admission form or transfer certificate issued on that basis not sufficient to prove that juvenile was below 18 years – Trial Judge holding juvenile to be 19 on his own admission – No infirmity. (Richpal alias Malia Vs State of Rajasthan) 2003(3) Criminal Court Cases 675 (Rajasthan) 

Juvenile Justice Act, 1986, S.2 – Juvenile – When the genuineness of the entry of Admission register has been doubted, then only the medical report can be the scientific basis for determination of age. (Anuj Kumar Singh @ Anuj Singh Vs State of Bihar) 2003(2) Criminal Court Cases 118 (Jharkhand) 

Karnataka Motor Vehicles Rules, 1989, Rules, 253, 254 & From 63 – From 63 provides for an application for compensation – It does not provide that claimant should specify his claim amount – It inter alia provides that he should mention his monthly income as well as the nature of injury sustained and medical certificates. (Nagappa Vs Gurudayal Singh) 2003(1) Criminal Court Cases 315 (S.C.)  

Karnataka Rent Act, 1999, S.27(2)(r), Karnataka Rent Control Act, 1961, S.21(1)(h) – Bonafide requirement – Eviction petition cannot be dismissed on the ground that family members of landlady would live comfortably and it was mere desire of landlady to get the premises vacated. (P.Suryanarayana (D) by Lrs. Vs K.S.Muddugowramma) 2004(1) Apex Court Judgments 616 (S.C.)

Karnataka Rent Act, 1999, S.27(2)(r) – Bonafide requirement – Rent Act made a provision that where landlord sought eviction of tenant for occupation of himself or for any member of his family, Court shall presume that premises were so required – It is mandatory presumption – However, tenant may rebut the presumption. (P.Suryanarayana (D) by Lrs. Vs K.S.Muddugowramma) 2004(1) Apex Court Judgments 616 (S.C.)

Karnataka Rent Act, 1999, Ss.69 and 70 – During pendency of special leave to appeal in Supreme Court Karnataka Rent Control Act, 1961 repealed and Karnataka Rent Act, 1999 came into force – Jurisdiction of Supreme Court under Article 136 Constitution of India neither curtailed not taken away – Held, appeal to be decided on merits. (M/s.Mahendra Saree Emporium Vs G.V.Srinivasa Murthy) 2004(2) Apex Court Judgments 449 (S.C.)

Karnataka Rent Control Act, 1961, S.50, Civil Procedure Code, 1908, S.151 – Revision – Finding of fact – High Court in exercise of revisional jurisdiction has power to reappreciate the evidence and interfere with the same – Revisional power of High Court is wider than power conferred under Section 115 CPC. (P.S.Pareed Kaka & Ors. Vs Shafee Ahmed Saheb) 2004(1) Apex Court Judgments 652 (S.C.)

Karnataka Stamp Act, 1957, S.45-A – Registration of document – Stamp duty paid on consideration shown in document – Held, Sub Registrar has no power to impound document and postpone registration on ground that property covered by document is undervalued. (Veerabhadrappa & Anr. Vs Jagadishgouda) 2003(1) Civil Court Cases 546 (Karnataka) 

Kerala Buildings (Lease and Rent Control) Act, 1965, S.11(4) – Sub letting – Notice – Non mention of name of alleged sub-lessee does not invalidate or vitiate the notice. (Kalyani Bharathan Vs Abdul Muthalif) 2005(2) Civil Court Cases 112 (Kerala)

Khasra Girdwari – Change of entries – Prior notice in writing has to be given to the person or persons likely to be adversely affected by the change in khasra girdwari. (Punjab Land Revenue Act, 1887, Ss.35, 36). (Harji Vs Smadh Baba Vijay Ram Chela Mangal Dass) 2003(2) Civil Court Cases 648 (P&H) 

Land Acquisition Act, 1894, Ss.4, 23 – Land acquisition – Compensation – Compensation already fixed by High Court in earlier proceedings – In one such case Supreme Court approved the rate fixed – Held, the best method for awarding compensation would be to look at the earlier Judgments and awards as such High Court cannot be faulted for having fixed compensation on the basis of earlier judgments. (Bhim Singh & Ors. Vs State of Haryana & Anr.) 2003(2) Apex Court Judgments 447 (S.C.)

Land Acquisition Act, 1894, Ss.4, 6, 18 & 30 – Compensation – Claim for apportionment -In land acquisition proceedings, Government cannot and does not acquire its own interest – Interest which is acquired in land acquisition proceedings are interest of 3rd parties. (Meher Rusi Dalal Vs Union of India & Ors.) 2005(1) Apex Court Judgments 184 (S.C.) : 2005(1) Civil Court Cases 283 (S.C.)

Land Acquisition Act, 1894, Ss.4, 6, 23, 28 and 34 –  Acquisition of compact block – Belting method is not the correct method for determination of compensation. (Smt.Lila Ghosh (Dead) through Lr. Tapas Chandra Roy Vs State of West Bengal) 2003(2) Apex Court Judgments 626 (S.C.)

Land Acquisition Act, 1894, Ss.4, 6 18, & 23 – Land Acquisition – Compensation –  Comparable sale – Guiding principles are: (i) The sale is within a reasonable time of the date of notification under S.4(1); (ii) It should be a bona fide transaction; (iii) It should be of the land acquired or of the land adjacent to the land acquired; and (iv) it should possess similar advantages. (Hans Raj Sharma (Dead) by Lrs. Vs Collector Land Acquisition, Tehsil & District Doda) 2005(1) Apex Court Judgments 529 (S.C.) : 2005(2) Civil Court Cases 302 (S.C.)

Land Acquisition Act, 1894, Ss.4, 6 18, & 23 – Land Acquisition – Compensation –  Comparable sale – Instances of sale of small tracks of land cannot be the basis of determining the market value of large tracks of land, unless suitable deduction is made in respect of development charges and land to be set apart – How much deductions are to be made depends upon nature of land, its topography and special features and state of its development so as to make it suitable for being adapted for immediate use. (Hans Raj Sharma (Dead) by Lrs. Vs Collector Land Acquisition, Tehsil & District Doda) 2005(1) Apex Court Judgments 529 (S.C.) : 2005(2) Civil Court Cases 302 (S.C.)

Land Acquisition Act, 1894, Ss.4 & 23 – Land acquisition – Compensation – Normally in  cases where compensation is awarded on yield basis, multiplier of 10 is considered proper and appropriate. (Assistant Commissioner-cum-Land Acquisition Officer, Bellary Vs Sri S.T.Pompanna Setty) 2005(1) Apex Court Judgments 374 (S.C.) : 2005(2) Civil Court Cases 402 (S.C.)

Land Acquisition Act, 1894, Ss.4(1), 18 & 23 – Acquisition of land – Compensation – Market value fixed at Rs.2/- per sq. yd. – Reference Court rejected some references and in some references enhanced market value of land to Rs.8/- per sq. yard – High Court in appeal enhanced market value of lands to Rs.9/- per sq. yd. and Rs.8/- per sq. yd. having regard to the locations and other factors – Judgment of High Court, upheld. (U.P.State Industrial Development Corpn. Ltd. Vs Shakti Bhatta Udyog & Ors.) 2005(1) Apex Court Judgments 12 (S.C.) : 2005(1) Civil Court Cases 660 (S.C.)

Land Acquisition Act, 1894, Ss.4(1), 6, 34 & 48 – Land acquisition – Compensation – Earlier acquisition proceedings were declared null and void in the suit instituted by the land owner himself as such he is not entitled to compensation or interest for the anterior period – When earlier acquisition proceedings were declared null and void then it was for the land owner to take possession of his land by taking appropriate legal proceedings – Land owner is entitled to get rent or damages for use and occupation for the period the Government retains possession of the property – Subsequent acquisition proceedings initiated – Held, it is just and equitable that Collector may also determine the rent or damages for use of the property to which the land owner is entitled while determining the compensation amount payable to the land owner for the acquisition of the property – Provision of S.48 of the Act is applicable – For delayed payment of such amount appropriate interest at prevailing bank rate may be awarded. (R.L.Jain (D) by Lrs. Vs DDA & Ors.) 2004(1) Apex Court Judgments 412 (S.C.)

Land Acquisition Act, 1894, S.11-A, 6(2) –  “Within a period of two years from the date of publication of the declaration” – Meaning – Various modes for publication provided are (a) publication in the official gazette (b) publication in two daily newspapers circulating in the locality in which the land is situate of which at least one shall be in the regional language and (c) Public notice at convenience place in the locality – Two years period starts to run from the last of the dates out of the three modes of publication. (Bihar State Housing Board Vs State of Bihar & Ors.) 2004(1) Apex Court Judgments 285 (S.C.)

Land Acquisition Act, 1894, Ss.11, 11(2) – There can never be two awards – one under S.11 of the Act and another u/s 11(2) of the Act over the same land acquired. (Orissa Industrial Infrastructure Development Corporation Vs Supai Munda & Ors.) 2004(1) Apex Court Judgments 45 (S.C.)

Land Acquisition Act, 1894, S.16 – Acquisition of land – Easement of right of necessity like a right of passage enjoyed by adjoining land owner do not extinguish by reason of acquisition of land by State authority. (H.P.State Electricity Board & Ors. Vs Shiv K.Sharma & Ors.) 2005(1) Apex Court Judgments 628 (S.C.) : 2005(1) Civil Court Cases 603 (S.C.)

Land Acquisition Act, 1894, S.17 – Acquisition of land – By invoking urgency clause – Challenged after announcing of award and vesting of land in State Govt. – Not tenable – Merely because payment has been made during pendency of suit after land vested in State Govt. does not enable plaintiff to impugn acquisition. (Union of India Vs Ujagar Singh) AIR 2003 P&H 297

Land Acquisition Act, 1894, Ss.17(3-A), 23(1-A) and 28 – Acquisition of land by private negotiation and possession taken prior to issuance of notification u/s 4 – State by several resolutions provided for rental compensation payable to title holders of lands – Writ petition praying interest on rental compensation for delayed payment – High Court allowed interest at 12% – Liability for rental compensation does not have its source under the Act – Question of equities however required that appellants should pay interest at 6% p.a. from 1.4.2000. (State of Maharashtra & Ors. Vs Maimuma Banu & Ors.) 2003(2) Apex Court Judgments 450 (S.C.)

Land Acquisition Act, 1894, S.18 – Co-owners – One co-owner is entitled to have the benefit of the enhanced compensation given in respect of the other co-owners in a reference made at his instance in respect of the land acquired, which belonged to all of them, jointly, irrespective of rejection of reference qua him on ground of belated application. (The Jalandhar Improvement Trust Vs The State of Punjab & Ors.) 2003(1) Apex Court Judgments 13 (S.C.)

Land Acquisition Act, 1894, S.18 – Curt exercising jurisdiction under Section 18 cannot decide the question of title of the State over the acquired land. (M/s. Ahad Brothers Vs State of M.P. & Anr.) 2005(1) Civil Court Cases 553 (S.C.)

Land Acquisition Act, 1894, S.18 – Land acquisition – Compensation – Market value – Sale transaction showing land far away from acquired land – Sale took place much after issuance of notification – Sale transaction cannot be relied upon for determining market value of land. (State of Punjab Vs Nek Singh) 2004(2) Civil Court Cases 137 (P&H)

Land Acquisition Act, 1894, S.18 – Reference to Court – Notice sent u/s 12(2) of the Act – Notice received back after proper service – Respondent denied to have received the notice – Respondent an illiterate person and cannot put his signature – It clearly demonstrates that respondent did not receive notice – Contention of appellant that reference was time barred must fail. (Orissa Industrial Infrastructure Development Corporation Vs Supai Munda & Ors.) 2004(1) Apex Court Judgments 45 (S.C.)

Land Acquisition Act, 1894, S.18 – Reference – Right to reference accrues only when award is not accepted – Once award is accepted, no legal right survives for claiming a reference – An agreement between parties as regard the value of land acquired by State is binding on the parties – So long such agreement and consequently the consent awards are not sent aside in an appropriate proceeding by a Court of law having jurisdiction in relation thereto, the same remain binding. (State of Karnataka & Anr. Vs Sangappa Dyavappa Biradar & Ors.) 2005(2) Civil Court Cases 307 (S.C.)

Land Acquisition Act, 1894, Ss.18, 3(a) – Trees – Claim for – Reference made for determination of amount of compensation payable for the ‘land’ acquired – Expression ‘land’ is inclusive of benefits to arise out of the land and things attached to the earth or permanently fastened to anything attached to the earth – Reference Court is bound to adjudicate the claim for higher compensation in respect of trees. (Hans Raj Sharma (Dead) by Lrs. Vs Collector Land Acquisition, Tehsil & District Doda) 2005(1) Apex Court Judgments 529 (S.C.) : 2005(2) Civil Court Cases 302 (S.C.)

Land Acquisition Act, 1884, Ss.18, 20 & 26 – Reference to civil Court – Claimant not participating when matter was taken up – It is not proper to dismiss the reference in default. (Khazan Singh Vs Union of India) AIR 2002 S.C. 726

Land Acquisition Act, 1894, Ss.18 & 30 – Compensation – Dispute as to apportionment – Person who had notice of acquisition proceedings and who, by virtue of S.50 is debarred from filing a reference under Section 18 cannot be allowed to apply for a reference u/s 30 of the Act. (Meher Rusi Dalal Vs Union of India & Ors.) 2005(1) Civil Court Cases 283 (S.C.)

Land Acquisition Act, 1894, Ss.18 & 30 – Land acquisition – Compensation – Market value – Reference Court determined market value of acquired land and recorded finding that appellant was having ownership right on acquired land – High Court modified compensation amount and held appellant entitled for compensation only to extent of lease hold interest in acquired land and that appellant was not owner of the land – Not only in the notification acquiring the land, name of appellant was recorded as owner but also in the revenue record appellant was shown as owner – If State was the owner of the land in question then there was no reason for it to acquire its own land – State cannot be said to be a person interested to agitate any claim either under S.18 or under S.30 of the Act – Impugned order holding appellant had only lease-hold interest in land cannot be sustained. (M/s. Ahad Brothers Vs State of M.P. & Anr.) 2005(1) Civil Court Cases 553 (S.C.)

Land Acquisition Act, 1894, Ss.21, 18 – Land acquisition – Compensation – Large area of 22 Hectares acquired from claimant company – Sale instances of small pieces of land are irrelevant – Company purchased land just 4-5 years before acquisition but not producing sale deeds for determining valuation of land – No commercial or industrial development after purchase till acquisition – Enhancement of compensation by High Court ignoring such circumstances not proper – Case remitted for fresh consideration. (Special Land Acquisition Officer Vs Indian Standard Metal Co. Ltd.) 2004(2) Apex Court Judgments 605 (S.C.)

Land Acquisition Act, 1894, S.23 – Land Acquisition – Compensation – Market value – Market value cannot be fixed on basis of a basic valuation register maintained by registering authority for collection of stamp duty –  Market value must be determined on the basis of sale deeds of comparable lands. (Krishi Utpadan Mandi Samiti Sahaswan District Badaun through its Secretary  Vs Bipin Kumar & Anr.) 2004(1) Apex Court Judgments 425 (S.C.)

Land Acquisition Act, 1894, S.23 – Land acquisition – Market value – Collector fixed Rs.6000/- per bigha and Reference Court enhanced to Rs.10,000/- per bigha and the same confirmed by High Court – Claimants had sold some land which was part of land to be acquired just a few months earlier – Sale price was Rs.7500/- per bigha – In another award whereby land was acquired Collector fixed market value at Rs.12,000 per bigha and High Court had enhanced it to Rs.32,000 per bigha – Two conflicting judgments of same High Court – Sale deeds referred t by High Court were not relied on either by claimant or by Govt. but were placed by vendees – Those sale deed would not furnish real indicia of market value of land – Value of land fixed at Rs.20000/- per bigha. (Virender Singh & Ors. Vs Union of India) 2003(1) Apex Court Judgments 674 (S.C.)

Land Acquisition Act, 1894, S.23 – Land acquisition – Market value – Comparable sales – Merits consideration only when (i) sale is within a reasonable time of the date of notification under Section 4(1); (ii) it should be a bona fide transaction; (iii) it should be of the land acquired or of the land adjacent to the land acquired; and (iv) it should possess similar advantages. (Ravinder Narain & Anr. Vs Union of India) 2003(2) Apex Court Judgments 306 (S.C.)

Land Acquisition Act, 1894, S.23 – Land acquisition – Market value – Rates fixed for small plots – Can be made basis for fixation of rate if there is no other material and adjudicating Court can make comparison of the prices paid for small plots of land making necessary deductions/adjustments while determining the price. (Ravinder Narain & Anr. Vs Union of India) 2003(2) Apex Court Judgments 306 (S.C.)

Land Acquisition Act, 1894, S.23 – Land acquisition – Structure over the acquired land – Annual rental value assessed at Rs.300/- – Market value of structure be calculated by applying multiplier of 16 to the annual rental value. (Smt.Dhan Devi Vs Union of India & Ors.) 2004(2) Civil Court Cases 37 (P&H)

Land Acquisition Act, 1894, S.23 – Land Acquisition – Valuation fixed by District Magistrate in respect of lands in the area – Cannot be the basis for ascertaining market value – No evidence led of any sale instances of comparable lands – Valuation fixed in other appeal for same land awarded to respondents also. (Krishi Utpadan Mandi Samiti Sahaswan District Badaun through its Secretary Vs Mohammed Ibrahim & Anr.) 2004(1) Apex Court Judgments 253 (S.C.)

Land Acquisition Act, 1894, S.23(1) – Land Acquisition – Agricultural land having potentiality for urban use – Market value – Determination – Where adjoining lands are fully developed, deduction towards investment on infrastructure which is yet to be made in respect of acquired land is to be limited to 33%. (Chandrashekar  Vs The Assistant Commissioner) 2003(2) Civil Court Cases 498 (Karnataka) 

Land Acquisition Act, 1894, S.23(1-A) – Land acquisition – Additional compensation – Payable from date of notification u/s 4 and not from date of taking actual possession upto date of award or date of taking possession under Act, whichever is earlier. (Narotam Ram Vs Land Acquisition Collector) AIR 2003 H.P. 55

Land Acquisition Act, 1894, S.23(1-A), 30 – Case not falling within the ambit of Clause (a) or Clause (b) of S.30(1-A) – Claimants are not entitled to additional amount under S.23(1-A). (Ghaziabad Development Authority Vs Anoop Singh & Ors.) 2003(1) Apex Court Judgments 451 (S.C.)

Land Acquisition Act, 1894 (As amended) Ss.23(1A), 23(2) and 28, Civil Procedure Code, 1908, O.47.R.1  – Reference Court – Review – Reference Court can review its earlier order if there exists an error apparent on the face of record in terms of O.47.R.1 CPC. (Jaya Chandra Mohapatra Vs Land Acquisition Officer, Rayagada) 2005(1) Apex Court Judgments 496 (S.C.) : 2005(1) Civil Court Cases 508 (S.C.)

Land Acquisition Act, 1894 (As amended) Ss.23(1A), 23(2) and 28, Civil Procedure Code, 1908, O.47.R.1 & S.47 – Reference Court – Can review its earlier order if there exists an error apparent on the face of record – Executing Court having limited jurisdiction cannot go into the question as to whether the Reference Court was correct in passing the review order – A decree on review if amended can be assailed by filing appropriate application before High Court but when it attains finality the same cannot be permitted to be assailed in the Executing Court and in that event principle of estoppel comes into play. (Jaya Chandra Mohapatra Vs Land Acquisition Officer, Rayagada) 2005(1) Apex Court Judgments 496 (S.C.) : 2005(1) Civil Court Cases 508 (S.C.)

Land Acquisition Act, 1894, Ss.23 (1-A) and 54(2) – Additional compensation – Omission to award – Omission not justified – Landowners are entitled to additional compensation. (Chandrashekar  Vs The Assistant Commissioner) 2003(2) Civil Court Cases 498 (Karnataka) 

Land Acquisition Act, 1894, Ss.23 & 28 (as amended) & S.30(2) – Award made by Collector as well as award passed by Civil Court on reference falling within time span specified in S.30(2) – Held, claimants are entitled to statutory benefits of S.23 & 28 of the Act. (Ghaziabad Development Authority Vs Anoop Singh & Ors.) 2003(1) Apex Court Judgments 451 (S.C.)

Land Acquisition Act, 1894, Ss.23, 54 and 28-A – Land acquisition – Co-owner granted enhanced compensation in appeal – Other co-owner who had not filed appeal, and whose case was not covered by S.28-A – He is entitled to enhanced compensation on ground of parity. (Smt.Kalawati Vs Union of India) AIR 2004 Delhi 351

Land Acquisition Act, 1894, S.25 – Landlord can claim and get compensation over and above what he claimed in an application seeking reference to Civil Court under S.18. (Ghaziabad Development Authority Vs Anoop Singh & Ors.) 2003(1) Apex Court Judgments 451 (S.C.)

Land Acquisition Act, 1894, S.28A, Requisitioning and Acquisition of Immovable Property Act, 1952, S.8(3) – S.28A of Land Acquisition Act is not applicable in proceedings of acquisition under 1952 Act – 1952 Act is a complete Code in itself for grant of compensation to land owners – Provisions of the two Acts are totally different. (Dayal Singh & Ors. Vs Union of India & Ors.) 2003(1) Apex Court Judgments 659 (S.C.)

Land Acquisition Act, 1894, S.28-A – Application under Section 28-A is to be filed within three months from the date of the award by the Court – Day on which the award was pronounced and the time requisite for obtaining the copy of the award is to be excluded. (State of Andhra Pradesh & Anr. Vs Marri Venkaiah & Ors.) 2003(2) Apex Court Judgments 202 (S.C.)

Land Acquisition Act, 1894, S.28-A – Compensation – Redetermination – Three months limitation – Is not confined to the date of earliest award made but from the date of the award of the Reference Court on the basis whereof redetermination is sought. (The State of Tripura & Anr. Vs Roopchand Das & Ors.) 2003(1) Apex Court Judgments 30 (S.C.)

Land Acquisition Act, 1894, Ss.28, 34, 16 & 17 – Interest – Payable from date of taking possession under Act which in no case can be before issuance of notification u/s 4. (Narotam Ram Vs land Acquisition Collector) AIR 2003 H.P. 55

Land Acquisition Act, 1894, S.30 – Land acquisition – Compensation – Market value – Determination – Reference Court determined compensation at Rs.2 per sq. feet while High Court fixed it at Rs.2 per sq. yard – Notification for acquisition of land issued in the year 1962 – Reference Court took into consideration sale deeds of the year 1954, 1955, 1960 and 1963 and one sale deed of the year 1962 – Land in question surrounded by other industrial establishments and developed area – High Court without considering material and even without considering reasons recorded by Reference Court modified the compensation – Judgment of High Court set aside and that of Reference Court restored – However, Reference Court failed to give any deduction towards development charges as such the same ordered to be deducted at 30% . (M/s. Ahad Brothers Vs State of M.P. & Anr.) 2005(1) Civil Court Cases 553 (S.C.)

Land Acquisition Act, 1884, S.30 & Civil Procedure Code, 1908, O.1.R.10 – Reference – Provision of O.1.R.10 CPC is applicable. (Rapaka Vs Muppadi) AIR 2002 A.P. 77

Land Acquisition Act, 1894, S.31(2) – Compensation received under duress – Benefit of the provision to decline reference is not available to the State Authority. (Orissa Industrial Infrastructure Development Corporation Vs Supai Munda & Ors.) 2004(1) Apex Court Judgments 45 (S.C.)

Land Acquisition Act, 1894, S.51 (As amended) – Acquisition of land – Compensation – Sale deeds – Besides the sale deeds produced evaluation for fixing the market value has to be done by taking into consideration other evidence if available on record like other sale transactions that may be produced, the comparative nature of the location, suitability, marketability etc. to fix the market value of the land acquired. (Cement Corporation of India Ltd. etc. Vs Purya & Ors. etc.) 2004(2) Apex Court Judgments 530 (S.C.)

Land Acquisition Act, 1894, S.51A (As amended in 1984), Evidence Act, 1872, Ss.64 & 65 – Sale deed – Certified copy – Admissibility –  Provision enables the party producing the certified copy of a sale transaction to rely on the contents of the document without  examining the vendee or the vendor of that document – However, presumption as to genuineness of the contents of the document can be relied upon only if the said presumption is not rebutted by other evidence. (Cement Corporation of India Ltd. etc. Vs Purya & Ors. etc.) 2004(2) Apex Court Judgments 530 (S.C.)

Land Acquisition Act, 1894 (As amended by Amendment and Validation) Act, 1967, S.4(3) – Interest – 6% allowed by Collector – Has to be allowed on market value as now determined in appeal – Claimants also entitled to interest on solatium.   (Virender Singh & Ors. Vs Union of India) 2003(1) Apex Court Judgments 674 (S.C.)

‘Law and order’ & ‘Public order’ –  Law and order is wider in scope whereas public order has a narrow ambit – Distinction between the two is one of degree and extent of reach of the act in question on society – It is potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order – If a contravention in its effect is confined only to a few individuals directly involved as distinct from a wide spectrum of public, it could raise problem of law and order only – It is the length, magnitude and intensity of the terror wave unleashed by a particular eruption of disorder that helps to distinguish it as an act affecting public order from that concerning law and order. (Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-of-fenders, Goondas, Immoral Traffic Offenders and Land-Grabbers Act, 1986, S.3(2).(The Commissioner of Police & Ors. Vs Smt.C.Anita) 2005(1) Criminal Court Cases 537 (S.C.)

Law laid down by Supreme Court – Prospective in operation only if there is such a direction. (Sarwan Kumar & Anr. Vs Madan Lal Aggarwal) 2003(1) Apex Court Judgments 282 (S.C.)

Lawyer’s strike – Revision – Dismissal for default – Once a revision is admitted for consideration, it cannot be dismissed for default – If the parties do not appear to participate, then it is the duty of the revisional Court to peruse the record, examine the points canvassed in the revision, analyse the fact and law and the legal lacuna, if any, and to dispose of the revision by a speaking order. (Rameswar Pradhan Vs Surendra Naik & Ors.) 2002(1) Criminal Court Cases 54 (Orissa)

Lease or licence – To determine whether a document is licence or lease (1) the substance of the document must be preferred to the form; (2) Real test is the intention of the parties whether they intended to create a lease or a licence; (3) If the document creates an interest in the property, it is a lease, but if it only permits another to make use of the property, of which the legal possession continues with the owner, it is a licence and (4) If under the document a party gets exclusive possession of the property, prima facie, he is considered to be a tenant but circumstances may be established which negatives the intention to create a lease. (Transfer of Property Act, 1882, S.105, Easement Act, 1882, S.52). (Chandy Varghese & Ors. Vs K.Abdul Khader & Ors.) 2004(1) Apex Court Judgments 298 (S.C.)

Legal Services Authority Act, 1987, S.20 – Lok Adalat – Can dispose of a matter by way of a compromise or settlement between the parties – Compromise means settlement of differences by mutual concessions – It is an agreement reached by adjustment of conflicting or opposing claims by reciprocal modification of demands – The word “compromise” implies some element of accommodation on each side – It is not apt to describe total surrender. (State of Punjab Vs Mohinderjit Kaur) 2005(2) Civil Court Cases 34 (S.C.)

Legal Services Authorities Act, 1987, S.20 – Lok Adalat – When there is no compromise or settlement, a case cannot be decided by Lok Adalat. (State of Punjab & Ors. Vs Phulan Rani & Anr.) 2004(2) Apex Court Judgments 277 (S.C.) : 2004(3) Civil Court Cases 522 (S.C.)

Legal Services Authorities Act, 1987, S.22 – Lok Adalat – Award – Environment polluting by slaughter house – No amicable settlement – Award passed by Lok Adalat for discontinuance of operation of slaughter house – ward is proper. (Municipal Council Vs Serve Seva Sansthan) AIR 2004 Rajasthan 96

Legal Services Authorities Act, 1987, S.22-E(3) – Lok Adalat – Award – By Chairman and one Members – To be considered as passed by majority of persons constituting Lok Adalat. (Municipal Council Vs Serve Seva Sanasthan) AIR 2004 Rajasthan 96

Legal Services Authorities Act, 1987, S.22(c)(3) – If a settlement does not take place between the parties then Permanent Lok Adalat has to decide the matter on merits – If the contesting parties are granted sufficient opportunity to address the Court on their respective plea and a reasoned order is passed then contention that procedure laid down under the Act is not followed is totally unacceptable being devoid of merit. (Life Insurance Corporation of India Vs District Permanent Lok Adalat & Anr.) 2005(1) Civil Court Cases 128 (Rajasthan)

Legal Services Authority Act, 1987, S.22-C – Lok Adalat – LIC policy – Dispute arising from a public utility service – Lok Adalat can pass an award even without a compromise having been arrived at between the parties. (Life Insurance Corporation of India Vs State of Rajasthan & Ors.) 2005(1) Civil Court Cases 408 (Rajasthan)

Life Insurance Corporation Act, 1956, S.30 – Insurgency afflicted regions – As life is uncertain there and people live constantly under fear of death and uncertainty of life is accepted as a normal course of living, as such Life Insurance Corporation, as a social welfare institution should think of devising a policy available in insurgency afflicted regions which takes care of he assured and his family members in such areas. (L.I.C. of India Vs Anuradha) 2004(1) Apex Court Judgments 715 (S.C.)

LIC AGENT – Not a public servant – His position is akin to a person who is employed for doing job work – Charge under the Prevention of Corruption Act cannot be framed against him. (Prevention of Corruption Act, 1947, Ss.2, 5(1)(d), 5(2) & Indian Penal Code, 1860, S.21). (Vijay Kumar Ojha Vs Superintendent of Police (C.B.I.), Jabalpur)) 2002(1) Criminal Court Cases 240 (M.P.)

Liquified Petroleum Gas (Regulation of Supply and Distribution) Order 1988, Essential Commodities Act, 1955, Ss.7, 10 & 55 – Gas cylinders – Weighment – Inspector Food and Supplies has power to raid Gas Agency and physically verify gas cylinders and get them weighed. (Yogesh Kumar & Ors. Vs State of Haryana) 2003(1) Criminal Court Cases 05 (P&H) 

Liquified Petroleum Gas (Regulation of Supply and Distribution) Order 1988, Essential Commodities Act, 1955, S.7 – Gas cylinders – Seizure by ASI of Police – ASI of Police has no power to seize the cylinders – It is only Officer of Department of Food and Civil Supplies not below the rank of Inspector who is specifically authorised by notification, who can exercise the power under the Act – Conviction set aside. (Karam Chand & Anr. Vs State of Haryana) 2003(3) Criminal Court Cases 604 (P&H) 

Lok Adalat – Award – Authority is required to note the presence of the parties and satisfy itself that parties have voluntarily, out of their own accord, with a free will, have entered into settlement – Compliance with procedural requirements must be reflected in award – Where it is not so, award, held, is to be set aside. (Legal Services Authorities Act, 1987, S.20(3) and (4). (Basamma  Vs Taluk Legal Services Committee) 2003(2) Civil Court Cases 77 (Karnataka) 

Lok Adalat – Award – It is final and binding between the parties – No appeal lies – Objections u/s 151 CPC are not maintainable – However award can be challenged by way of petition under Article 227 of the Constitution allegedly not tainted with Compromise or Settlement. (Parmod Vs Jagbir Singh) 2003(1) Civil Court Cases 623 (P&H) 

Lok Adalat – Cannot acquire the jurisdiction of a Court – Lok Adalat cannot decide case on merits – Lok Adalat can only record a Compromise or Settlement keeping in mind the principles of justice, equity, fair play and other legal principles. (Parmod Vs Jagbir Singh) 2003(1) Civil Court Cases 623 (P&H) 

Lok Adalat – Does not possess the power to adjudicate upon the rights of the parties unless there is compromise or settlement between the parties – It can only pass a consent decree by recording consent of the parties. (Legal Services Authority Act, 1987, Ss.20 & 21). (Santosh Gupta Vs Life insurance Corporation of India) 2003(3) Civil Court Cases 557 (P&H) 

Lok Adalat – Has no jurisdiction to pass an order on merits – If an agreement cannot be reached Lok Adalat must divest itself of the controversy and must itself refer or advise the parties to approach a Court. (Krishna Rani Vs Ram Kishan) 2003(1) Civil Court Cases 519 (P&H)  

Lok Adalat – Reference of dispute – Suit claim admitted in written statement – Dispute ceases to exist – Such case cannot be referred to Lok Adalat as existence of dispute in case pending before Court is sine qua non for referring the dispute to Lok Adalat. (Legal Services Authorities Act, 1987, Ss.19(5)(i) and 20(1)(i)(b), Civil Procedure Code, 1908, O.15.R.1). (Basamma  Vs Taluk Legal Services Committee) 2003(2) Civil Court Cases 77 (Karnataka) 

Maharashtra Rent Control Act, 2000, S.58 & Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, S.13(1) – Eviction petition – Decree for eviction passed under Bombay Rent Act – Decree is capable of being executed notwithstanding repeal of Bombay Rent Act. (Dhanraj Bhuddsingh Gupta Vs Dinesh Purshottam) 2003(1) Civil Court Cases 323 (Bombay) 

Mahomedan Law – Irrevocable Talaq – Proof. (Dagdu Chotu Pathan Vs Rahimbi Dagdu Pathan) 2003(2) Civil Court Cases 182 (Bombay) 

Mahomedan Law – Plea of Divorce and effective Talaq – Enumerated. (Dagdu Chotu Pathan Vs Rahimbi Dagdu Pathan) 2003(2) Civil Court Cases 182 (Bombay) 

Mahomedan Law – Talaq and Talaqnama – Unless factum of Talaq is proved Talaqnama in isolation has no sanctity in support of valid Talaq. (Dagdu Chotu Pathan Vs Rahimbi Dagdu Pathan) 2003(2) Civil Court Cases 182 (Bombay) 

Mahomedan Law – Talaq by husband – Must be for reasonable cause and preceded by attempts of reconciliation between husband and wife by arbitrators. (Dagdu Chotu Pathan Vs Rahimbi Dagdu Pathan) 2003(2) Civil Court Cases 182 (Bombay)

Mahomedan Law – Talaq given in presence of witnesses – Both witnesses must profess Islam. (Dagdu Chotu Pathan Vs Rahimbi Dagdu Pathan) 2003(2) Civil Court Cases 182 (Bombay) 

Mahomedan Law – Talaq in form of Biddat/Bidai or Rajai – Proof – Words used for giving Talaq in these two forms must be proved before Court. (Dagdu Chotu Pathan Vs Rahimbi Dagdu Pathan) 2003(2) Civil Court Cases 182 (Bombay)

Mahomedan Law – Talaq – Proof – Not merely factum of Talaq but conditions preceding to the stage of giving Talaq are also required to be proved. (Dagdu Chotu Pathan Vs Rahimbi Dagdu Pathan) 2003(2) Civil Court Cases 182 (Bombay) 

Mahomedan Law – “Iddat” – Minor or woman not menstruating – Iddat period is three lunar months after divorce. (Dagdu Chotu Pathan Vs Rahimbi Dagdu Pathan) 2003(2) Civil Court Cases 182 (Bombay) 

Maintenance – Christian father is under obligation to maintain minor son. (Mathew Varghese Vs Rosamma Varghese) AIR 2003 Kerala 312

Maintenance – Jurisdiction – Wife apprehending danger to her life at the hands of husband and his family members left her matrimonial house at place ‘G’  – Cause of action arises at place ‘G’ – It is S.20 CPC and not S.19 Hindu Marriage Act which governs jurisdiction – Court at place ‘G’ has jurisdiction to try petition for maintenance. (Hindu Adoptions and Maintenance Act, 1956, S.18). (Pankaj Suryakant Lohar Vs Mayuri Pankaj Lohar) 2003(2) Civil Court Cases 52 (Bombay)

Malicious prosecution – A person not in possession of land making a complaint of trespass against a person who is in actual physical possession of that land, prima facie, smacks malice, and so Court can draw a presumption that such complaint was made without reasonable and probable cause. (A.Narayan Rao Vs Shanta Bai & Ors.) 2004(2) Civil Court Cases 409 (A.P.)

Malicious prosecution – Acquittal by Criminal Court – Defendants hatched a conspiracy to involve plaintiff in a false criminal prosecution out of sheer enmity and only to suppress their misconduct – Plaintiff though acquitted by criminal court but he suffered mental torture and agony for long period of four years and incurred expenses – Court below, held, justified in awarding damages of Rs.12,500/- to plaintiff. (Vishweshwar Shankarrao Deshmukh & Anr. Vs Narayan Vithoba Patil) 2004(3) Civil Court Cases 525 (Bombay)

Malicious prosecution – Civil Court not to rely on the findings recorded by, or evidence adduced before the Criminal Court for arriving at a conclusion as to the incidence of malice – Civil Court should on the basis of evidence adduced before it only, should reach a conclusion about the absence of reasonable and probable cause, without being influenced by the finding of Criminal Court regarding the credibility of the witness examined before it. (A.Narayan Rao Vs Shanta Bai & Ors.) 2004(2) Civil Court Cases 409 (A.P.)

Malicious Prosecution – Criminal complaint – Mere presentation of a false complaint does not furnish a cause of action – In an action for malicious prosecution plaintiff has to prove that the proceedings were initiated without any reasonable and probable cause and burden of proof lies on the plaintiff – Findings recorded in criminal proceedings are not binding on civil court. (Sukhhwinder Singh Vs Ravinder Singh) 2003(3) Civil Court Cases 204 (P&H) 

Malicious prosecution – Damages – Acquittal in criminal case on ground of benefit of doubt – In all cases where benefit of doubt is given by the Court it is difficult to hold that the complaint which is the basis of the prosecution is false and untenable – There are variety of reasons for which the accused is given benefit of doubt – This by itself cannot lead to a conclusion that the complaint was based on extraneous consideration leading to the entitlement of damages. (Radhey Mohan Singh Vs Kaushalya Devi & Ors.) 2004(2) Civil Court Cases 329 (Delhi)

Malicious Prosecution – Damages – Four essential requisites are : (1) The proceedings must have been instituted or continued by the defendant; (2) He must have acted without reasonable and probable cause; (3) He must have acted maliciously; (4) In certain classes of cases the proceedings must have been unsuccessful – that is to say, must have terminated in favour of the plaintiff now suing. (Sukhhwinder Singh Vs Ravinder Singh) 2003(3) Civil Court Cases 204 (P&H) 

Malicious prosecution – Damages – Reasonable and probable cause to be proved – Reasonable and probable cause means a genuine belief based on reasonable grounds that the proceedings are justified – No action lies for the institution of legal proceedings, however malicious, unless they have been instituted without reasonable and probable cause – Burden of proving absence of reasonable and probable cause is on the plaintiff – Acquittal in a criminal case is not sufficient to discharge the burden of proving that there is no reasonable and probable cause for instituting a criminal complaint – In a civil suit for malicious prosecution, Civil Court has to consider independently and come to a conclusion from the evidence that all necessary ingredients including want of reasonable and probable cause for establishing a claim for malicious prosecution is present. (Philip  Vs Hindu Matha Dharma Paripalana Sabha) 2003(2) Civil Court Cases 717 (Kerala) 

Malicious prosecution – To be successful plaintiff has to prove (a) That Criminal proceedings were instituted and continued against him by the defendant; (b) That there was no reasonable or probable cause for the defendant instituting those proceedings; (c) That institution of such proceedings was malicious; and (d) That those proceedings ended in his favour. (A.Narayan Rao Vs Shanta Bai & Ors.) 2004(2) Civil Court Cases 409 (A.P.)

Matrimonial dispute – In matrimonial dispute it is very difficult to unravel the true reason for the dispute – Evidence of contemporaneous nature plays an important role in such cases as it may reveal the thinking and attitude of the parties towards each other at the relevant time. (Deb Narayan Halder Vs Smt.Anushree Halder) 2004(2) Criminal Court Cases 460 (S.C.)

Maxim – “Falsa demonstratio non nocet cum de corpore constat” – It means that a false description does not vitiate the deed of transaction. (Pradeep Kumar Vs Mahaveer Pershad) 2003(2) Civil Court Cases 586 (A.P.) 

Medical jurisprudence – Firing from close, medium and long distance – Effect on body – Analysed. (Kamal & Ors. Vs State of Rajasthan) 2003(3) Criminal Court Cases 156 (Rajasthan) 

Mines and Minerals (Regulation and Development) Act, 1957, S.9(3), Mineral Concession Rules, 1960, R.64-A, Sale of Goods Act, 1930, S.61 – Mining lease – Royalty on coal – State Government is entitled to collect royalty including enhanced royalty from lessees, i.e. coalfields – Coalfields can pass on burden of royalty to purchasers/consumers by including amount equivalent to royalty in price of coal – Consumers filed writ petition challenging enhancement of royalty – Coalfields did not challenged enhancement – Consumer furnished bank guarantees for payment of differential amount of royalty – State Govt. raised demand of interest at 24% p.a. for the period for which payment was delayed – High Court directed payment of interest at 12% – Held, mining lessees are bound to pay interest as per terms of mining leases incorporating clause for payment of interest. (South Eastern Coalfields Ltd. Vs State of M.P. & Ors.) 2003(2) Apex Court Judgments 708 (S.C.)

Mohamedan Law – Will – Bequest by Will – Mohamedan of sound mind and not a minor may dispose of his property by Will either verbally or in writing and consent of the heirs is necessary – Any single heir may consent so as to bind his own share – Neither inaction nor silence can be the basis of implied consent. (Naziruddin Vs Hajirambee) 2004(2) Civil Court Cases 245 (Kerala)

Mohammedan Law – Parties belonging to Sunni community – Talaq pronounced by husband – Death of husband during iddat period – Wife to be treated as legally wedded wife of the deceased. (Mallika Begum Vs Asha Begum) 2003(1) Civil Court Cases 16 (A.P)  

Mortgage – Redemption – Once the mortgage is redeemed by one of the co-mortgagee/co-owner, then relief of possession by redemption cannot be granted and application for redemption is not maintainable. (Avtar Singh  Vs Gurbachan Kaur) 2003(3) Civil Court Cases 226 (P&H) 

Motor Accident – Appellant a minor of 9 years, suffering injury in right hand – Disability assessed at 20% – Loss of earning capacity – Tribunal assessed compensation at Rs.20,000/- and High Court increased it by Rs.5000/- – Held compensation awarded is not adequate and the same increased from Rs.35,000/- to Rs.50,000/- – Appeal allowed in part. (Kapil Kumar Vs Kudrat Ali & Ors.) 2003(1) Apex Court Judgments 36 (S.C.)

Motor Accident – Claim – Deceased travelling in auto-rickshaw – Hit by bus of appellant Corporation – Claim for compensation filed jointly against owner and insurer of auto-rickshaw and owner and insurer of bus – Plea that Insurance Company was not liable not raised before the Claims Tribunal – Cannot be allowed to be raised for the first time in appeal before High Court. (Gujarat State Road Transport Corporation Vs Patel Rajabhai Bavabhai & Ors.) 2004(2) Civil Court Cases 327 (Gujarat)

Motor Vehicles Act, 1939, Ss.94, 95 r/w S.103-A – Transfer of vehicle – Failure of owner or purchaser to give intimation as required by S.103-A – Liability of insurer to pay compensation to third party does not ceases. (Rikhi Ram & Anr. Vs Smt.Sukhrania & Ors.) 2003(1) Apex Court Judgments 590 (S.C.)

Motor vehicles Act, 1939, S.95 – Comprehensive insurance – Third party risk – Liability of insurer does not become unlimited or higher beyond the statutory liability fixed – For this purpose, a specific agreement has to be arrived at between the insured and the insurer and separate premium has to be paid in respect of additional amount of liability undertaken by the insurer in that regard. (National Insurance Co. Ltd. Vs Keshav Bahadur & Ors.) 2004(1) Apex Court Judgments 694 (S.C.)

Motor Vehicles Act, 1939, S.95 – Third party risk – Liability of insurer – In absence of any specific agreement and payment of additional premium for higher risk the liability of insurer cannot be unlimited in respect of third party and it is limited only to the statutory liability. (National Insurance Co. Ltd. Vs Keshav Bahadur & Ors.) 2004(1) Apex Court Judgments 694 (S.C.)

Motor Vehicles Act, 1939, S.95(2) – Insurance company – Liability – High premium not taken by insurance company for payment of compensation to third party – Insurance company not liable to pay entire amount – Merely on grounds that insured had taken a comprehensive policy – Liability of Insurance Company is limited to Rs.50,000/- in terms of insurance policy. (New India Assurance Co. Ltd. Vs C.M.Jaya) AIR 2002 S.C. 651

Motor Vehicles Act, 1939, S.95(2)(b)(i) – Vehicle not a taxi – Liability of Insurance Company would be the amount of liability incurred even though it is an ‘Act only’ Policy. (Jameskutty Jacob Vs United India Insurance Co.Ltd. & Ors.) 2003(2) Apex Court Judgments 322 (S.C.)

Motor Vehicles Act, 1939, Ss.95, 92-A – Insurance – Third party – Does not cover passenger or pillion rider of motor vehicle except if it is a motor vehicle for carrying passengers. (New India Assurance Company Ltd. Vs Babasaheb Anna Mali) AIR 2002 Bombay 27

Motor Vehicles Act, 1939, S.110 – Motor accident – An employer cannot be held to be vicariously liable for the negligence of claimant driver himself. (M/s Tamil Nadu State Transport Corporation Vs Natarajan & Ors.) 2003(2) Apex Court Judgments 04 (S.C.)

Motor Vehicles Act, 1939, S.110A – 18 years boy riding a cycle collided with vehicle and died – Parents aged 47 and 43 years – Even if there was no actual pecuniary benefit derived by parents from deceased, prospective loss will found a valid claim provided parents established that they had a reasonable expectations of pecuniary benefit if child had lived – Compensation is relatable to loss of contribution or pecuniary benefits – Expected income of deceased at Rs.3000/- p.m. taken by Tribunal and affirmed by High Court not disturbed – Multiplier of 15 applied was higher and reduced to 10 – Compensation accordingly modified. (The Municipal Corporation of Greater Bombay Vs Shri Laxman Iyer & Anr.) 2003(2) Apex Court Judgments 637 (S.C.)

Motor Vehicles Act, 1939, S.110A – Contributory negligence – Deceased, 18 years boy, riding a bicycle collided with vehicle of appellant – Application of brakes and incident of collision between cycle and bus seemed almost simultaneous – Held, award is liable to be deducted by 25% towards contributory negligence. (The Municipal Corporation of Greater Bombay Vs Shri Laxman Iyer & Anr.) 2003(2) Apex Court Judgments 637 (S.C.)

Motor Vehicles Act, 1939, S.110-A, Motor Vehicles Act, 1988, S.166 – Advocate – An Advocate like professionals have no age of retirement and they continue practicing till their advanced age – They have better future prospects – Multiplier of 20 applied – Compensation awarded for pain and sufferings – Income assessed Rs.40,000/- annually. (Swaran Kanta Seth Vs Vijay Aggarwal) 2003(2) Civil Court Cases 459 (Delhi) 

Motor Vehicles Act, 1939, S.110-A to 110-F – Compensation – Every legal representative who suffers on account of the death of a person due to motor vehicle accident has a remedy for realisation of compensation. (M/s Sachdeva Rice Mills Vs Smt.Raj Anand) 2003(1) Civil Court Cases 582 (P&H) 

Motor Vehicles Act, 1939, S.110-A – Contributory negligence – Apportionment of loss i.e. damage is reduced to such an extent as the Court thinks just and equitable having regard to the claim shared in the responsibility for the damage – However when there is no contributory negligence on the part of the victim the question of apportionment does not arise. (The Municipal Corporation of Greater Bombay Vs Shri Laxman Iyer & Anr.) 2003(2) Apex Court Judgments 637 (S.C.)

Motor Vehicles Act, 1939, S.110-A – Contributory negligence – Crucial question, in a case of contributory negligence, is whether either party could, by exercise of reasonable care, have avoided the consequences of other’s negligence – Whichever party could have avoided the consequence of other’s negligence would be liable for the accident. (The Municipal Corporation of Greater Bombay Vs Shri Laxman Iyer & Anr.) 2003(2) Apex Court Judgments 637 (S.C.)

Motor Vehicles Act, 1939, S.110-A – Negligence – Means either subjectively a careless state of mind, or objectively careless conduct – Negligence is not an absolute term, but is a relative one – It is rather a comparative term – No absolute standard can be fixed and no mathematically exact formula can be laid down by which negligence or lack of it can be infallibly measured. (The Municipal Corporation of Greater Bombay Vs Shri Laxman Iyer & Anr.) 2003(2) Apex Court Judgments 637 (S.C.)

Motor Vehicles Act, 1939, S.110-A – Negligence – To determine whether an act would be or would not be negligent, it is relevant to determine if any reasonable man would foresee that the act would cause damage or not. (The Municipal Corporation of Greater Bombay Vs Shri Laxman Iyer & Anr.) 2003(2) Apex Court Judgments 637 (S.C.)

Motor Vehicles Act, 1939, S.110-A – Principle of res ipsa loquitur – Collusion between car and truck – Driver and persons travelling in car killed – Claimants unable to prove how accident happened – Specific plea of negligence of car driver alleged by truck driver – Under the circumstances Tribunal was justified in applying principle of res ipsa loquitur. (Bishansing Thakursing Vs Nasira Kadar Shaikh) 2003(1) Civil Court Cases 241 (Bombay) 

Motor Vehicles Act, 1939, S.110-AA – Bus driver taking unauthorised route – There was no prohibition of not taking the unauthorised route – Held, master is liable for the negligent act of his servant. (Manjit Kumar (Minor) & Ors. Vs The State of Haryana & Ors.) 2005(1) Civil Court Cases 811 (P&H)

Motor Vehicles Act, 1939, S.110-AA – Deceased left behind his widow and two minor children – Income claimed to be Rs.32,000/- to Rs.35,000/- per annum – Land inherited by appellants but contribution of deceased in making it cultivable not available – Annual loss assessed at Rs.7200/- per annum and multiplier of 16 applied. (Manjit Kumar (Minor) & Ors. Vs The State of Haryana & Ors.) 2005(1) Civil Court Cases 811 (P&H)

Motor Vehicles Act, 1939, S.110-AA – Entitlement to claim compensation under Motor Vehicles Act as well as under the Workmen Compensation Act – Compensation can be claimed under either of the Acts but not under both the Acts. (Ram Rattan Vs Shri Jagdish Sharan Jindal & Anr.) 2005(1) Civil Court Cases 799 (P&H)

Motor Vehicles Act, 1939, S.110-B – Motor accident – Claim petition – Amount received by Claimants from other sources such as insurance, provident fund cannot be deducted from statutory compensation payable under Motor Vehicles Act. (Bishansing Thakursing Vs Nasira Kadar Shaikh) 2003(1) Civil Court Cases 241 (Bombay) 

Motor Vehicles Act, 1939, S.110-B – Motor accident – Claim petition – Ex gratia amount received by heirs from employer – Cannot be deducted from total compensation determined by Tribunal. (Bishansing Thakursing Vs Nasira Kadar Shaikh) 2003(1) Civil Court Cases 241 (Bombay) 

Motor Vehicles Act, 1939, S.110-CC – Compensation – Interest – It is discretion of Court/Tribunal to allow simple interest in addition to compensation. (M/s Sachdeva Rice Mills Vs Smt.Raj Anand) 2003(1) Civil Court Cases 582 (P&H) 

Motor Vehicles Act, 1939, S.110-CC – Interest – ‘May’ – Though expression ‘May’ is used, Tribunal is bound to consider the question of interest separately with due regard to the facts and circumstances of the case – Power to be exercised only where the claimant can claim interest as a matter or right. (National Insurance Co. Ltd. Vs Keshav Bahadur & Ors.) 2004(1) Apex Court Judgments 694 (S.C.)

Motor Vehicles Act, 1939, S.110-CC – Interest – Allowed at 7% on amount of compensation from date of filing of claim petition till its realisation. (Manjit Kumar (Minor) & Ors. Vs The State of Haryana & Ors.) 2005(1) Civil Court Cases 811 (P&H)

Motor Vehicles Act, 1939, S.110-CC – Interest – Penal rate – Awarding of retrospective enhancement of interest for default amounts to imposition of penalty which is neither statutorily envisaged nor prescribed – Once discretion is exercised by awarding simple interest, there is no scope for retrospective enhancement – But insurer cannot withhold the awarded amount indefinitely – On facts, interest @ 9% per annum directed to be paid within three months. (National Insurance Co. Ltd. Vs Keshav Bahadur & Ors.) 2004(1) Apex Court Judgments 694 (S.C.)

Motor Vehicles Act, 1939, S.110(d), 96 – Appeal – Insurer – Enhancement of amount payable – Cannot be ordered without notice to owner/driver of offending vehicle. (Kalabai Choubey Vs Rajabahadur Yadav) AIR 2002 M.P. 8

Motor Vehicles Act, 1939, Ss.110-A, 2(19) – Accident – Claim petition – Plea of registered owner that possession of vehicle was with subsequent purchaser – Registered owner failed to prove sale or handing over of possession of vehicle in question – Even otherwise any condition absolving registered owner of his liability would be against public policy – Registered owner cannot avoid his liability to pay compensation. (Dhulchand Vs Kanti Lal & Ors.) 2005(2) Civil Court Cases 25 (Rajasthan)

Motor Vehicles Act, 1939, Regulations 6 & 7 of Tenth Schedule – Traffic rules – Every driver of a motor vehicle has a duty to slow down his vehicle when approaching a road inter-section, a road junction and also to give way to the vehicle approaching the intersection on his right side – Failure to obey both the obligations then driver is liable to pay whole amount of compensation. (M/s Sachdeva Rice Mills Vs Smt.Raj Anand) 2003(1) Civil Court Cases 582 (P&H) 

Motor Vehicles Act, 1988, Second Schedule – In case of a person between age of 40 and 45 years correct multiplier to be applied is 15. (Veena Aggarwal & Ors. Vs Inderjeet Pandey & Ors.) 2004(2) Civil Court Cases 327 (Delhi)

Motor Vehicles Act, 1988 – Motor Accident – Compensation – Future prospects – To be taken into consideration while awarding compensation if deceased had stable income. (Veena Aggarwal & Ors. Vs Inderjeet Pandey & Ors.) 2004(2) Civil Court Cases 327 (Delhi)

Motor Vehicles Act, 1988, S.2(14), 149, 145(c), 147 – Person travelling in goods vehicle – Death or bodily injury – Insurer is not liable to pay compensation. (National Insurance Co. Ltd. Vs Ajit Kumar & Ors.) 2003(2) Apex Court Judgments 623 (S.C.)

Motor Vehicles Act, 1988, S.71(3) – Stage carriage permit – Grant of – Reservation of permits for State Transport undertaking – Not permissible. (K.P.Ajith Kumar Vs The Regional Transport Authority) AIR 2002 Kerala 178

Motor Vehicles Act, 1988, S.95(2)(c) – Private vehicle – Passengers allowed to travel for hire – Insurance policy specifically excluding travelling for hire or reward – Comprehensive insurance policy taken – Liability of Insurance company in case of accident – Held, the parties are governed by the terms of the agreement except in cases where the terms go against the statutory provisions – Insurance company not liable to pay compensation. (Jayakumar Vs Rajamma & Ors.) 2004(3) Civil Court Cases 331 (Kerala)

Motor Vehicles Act, 1988, S.140, 166 – Compensation – Enhancement – Deceased aged 20 years – Multiplier of 10 applied by observing that after marriage deceased would not spare substantially for his mother – If after marriage contribution to mother diminishes, income can be expected to increase and therefore quantum of contribution can be said to be almost the same even after marriage – Multiplier of 18 is just and equitable. (Smt.Hero Vs General Manager, Haryana Roadways, Ambala) 2005(1) Civil Court Cases 702 (P&H)

Motor Vehicles Act, 1988, S.140, A.P.Motor Vehicles Rules, 1989, Rules 415 & 417 – No fault liability – While boarding bus in motion claimant fell down and left front wheel of bus ran over hand and claimant suffered permanent disability by way of amputation of hand – Mounting and taking hold of vehicle in motion prohibited by Rules 415 & 417 – Accident occurred due to negligence of claimant and not due to negligence of driver of vehicle – Held, claimant is entitled to compensation of Rs.12,000/- under no fault liability as per provision of S.146 then in force. (Hussain Pasha Vs Managing Director, A.P.S.R.T.C., & Anr.) 2005(1) Civil Court Cases 674 (A.P.)

Motor Vehicles Act, 1988, S.140 – Insurance policy – Validity or otherwise of insurance policy cannot be raised at interim stage. (National Insurance Co. Ltd. Vs Amiya Borbora & Anr.) AIR 2004 Gauhati 22

Motor Vehicles Act, 1988, S.140 – No fault liability – Interim compensation – Cannot be defeated by insurer by raising plea of violation of terms and conditions of policy. (New India Assurance Company Limited Vs Lal Ram and others) AIR 2002 Rajasthan 3

Motor Vehicles Act, 1988, Ss.140, 163-A, 166 – Accident – Claim petition – Death of parents in accident – Two claim petitions filed, one u/s 163-A and other u/s 166 – Claim of compensation for a sum of Rs.4,97,800/- for the death of mother and for a sum of Rs.17,30,900/- for the death of father – Tribunal proceeding on basis that in terms of S.163-A of the Act, merely an interim relief was to be granted, awarded a sum of Rs.4,20,500/- and Rs.11,74,500/- respectively – It was held that application filed u/s 166 would be determined separately – High Court reduced the compensation holding that said sum would be paid by way of interim compensation – Appellants withdrew 50% of the amount and rest of the amount was invested – Held, High Court was not justified in holding that ward u/s 163-A is an interim relief – Tribunal directed to determine claim petition filed u/s 166 of the Act treating claim petition filed u/s 163-A of the Act as applications u/s 140 of the Act. (Deepal Girishbhai Soni & Ors. Vs United India Insurance Co. Ltd., Baroda) 2004(2) Civil Court Cases 393 (S.C.)

Motor Vehicles Act, 1988, Ss.140, 166 – Compensation – Enhancement – Deceased aged 20 years – Multiplier of 10 applied by observing that after marriage deceased would not spare substantially for his mother – If after marriage contribution to mother diminishes, income can be expected to increase and therefore quantum of contribution can be said to be almost the same even after marriage – Multiplier of 18 is just and equitable. (Smt.Hero Vs General Manager, Haryana Roadways, Ambala) 2005(1) Civil Court Cases 702 (P&H)

Motor Vehicles Act, 1988, S.147 (As amended in 1994) – Goods vehicle – Gratuitous passengers – Not covered in the insurance policy – However owner or his authorised representatives are covered by the policy of insurance. (M/s.National Insurance Co. Ltd. Vs Baljit Kaur & Ors.) 2004(1) Apex Court Judgments 6 (S.C.)

Motor Vehicles Act, 1988, S.147 – Comprehensive insurance policy – Death or bodily injury to the owner of vehicle – Owner of a vehicle can only claim provided a personal accident insurance has been taken out. (Dhanraj Vs New India Assurance Co.Ltd. & Anr.) 2005(1) Apex Court Judgments 116 (S.C.) : 2005(1) Civil Court Cases 675 (S.C.)

Motor Vehicles Act, 1988, S.147 – Driver of offending vehicle not holding valid and effective driving licence – Insurance Company is liable to pay award amount though it can recover same from owner/insured. (National Insurance Co. Ltd. Vs Savitri Devi & Ors.) 2004(1) Apex Court Judgments 63 (S.C.)

Motor Vehicles Act, 1988, S.147 – Goods vehicle – Death or bodily injury to owner of goods  or his authorised representative travelling in goods vehicle – Held, insurer is not liable for paying compensation. (New India Assurance Co. Ltd. Vs Asha Rani & Ors.) 2003(1) Apex Court Judgments 74 (S.C.)

Motor Vehicles Act, 1988, Ss.147, 149 – “A policy for Act Liability” or “Act Liability” – Death of driver – Liability of Insurance Company is limited to that under Workmen’s Compensation Act – If owner wants unlimited liability of insurance company, in case of death of an employee, then he has to take a policy by making extra premium. (National Insurance Co. Ltd. Vs Prembai Patel & Ors.) 2005(1) Apex Court Judgments 710 (S.C.) : 2005(2) Civil Court Cases 282 (S.C.)

Motor Vehicles Act, 1988, Ss.147 & 149 – Gratuitous passengers – Accident –  Liability of insurer – Gratuitous passengers travelling in goods vehicle are not entitled to any compensation from the insurance company – Insurance Company is not liable. (Oriental Insurance Company Ltd. Vs Devireddy Konda Reddy) 2003(1) Apex Court Judgments 653 (S.C.)

Motor Vehicles Act, 1988, S.149 – Bus – Carrying 60 person as against its capacity of 40 – It cannot be said that merely by carrying passengers in excess of capacity, bus was not driven for purpose for which permit was granted – Insurer rightly held liable to satisfy award. (National Insurance Co.Ltd. Vs Smt.Radha Bai &  Ors.) 2005(2) Civil Court Cases 358 (Rajasthan)

Motor Vehicles Act, 1988, S.149 – Compensation – Insurance company – Liability – Cover note issued – Insurance company cannot escape its liability. (Oriental Insurance Co.Ltd. Vs White Rose) AIR 2002 Allahabad 117

Motor Vehicles Act, 1988, S.149 – Compensation – Insurer – Liability – Driving having no valid licence at the relevant time – Burden to prove that licence was false and not genuine lies on insurer – Insurer failing to prove that licence was false – In circumstances award of Tribunal fastening liability to pay compensation on insurer – Not improper. (National Insurance Co.Ltd. Vs Dharamwati) AIR 2002 P&H 1

Motor Vehicles Act, 1988, S.149 – Deceased hired tempo for bringing vegetable – Deceased travelling in it – While going to purchase vegetable tempo met with accident – Deceased was not an unauthorised passenger – It cannot be said that deceased was carried in the vehicle for reward – Award passed against Insurance Company – Upheld. (New India Assurance Co. Ltd. Vs Smt.Sonmati & Ors.) 2005(1) Civil Court Cases 777 (Delhi)

Motor Vehicles Act, 1988, S.149 – Driving licence – Expired during course of employment – Nothing on record that at the time when driver was employed by owner he was not holding a valid driving licence – Insurance Company cannot avoid its liability even towards the owner in respect of the compensation amount awarded to the claimants. (National Insurance Company Vs Chand Kaur & Ors.) 2005(2) Civil Court Cases 331 (P&H)

Motor Vehicles Act, 1988, S.149 – Insurance claim – Damage to vehicle due to mechanical defect – No fault of driver – Insurance Company cannot repudiate a claim made by owner of vehicle solely on ground that driver of vehicle did not hold a valid licence – Insurance Company cannot repudiate claim of appellant. (Jitendra Kumar Vs Oriental Insurance Co. Ltd. & Anr.) 2003(2) Apex Court Judgments 506 (S.C.)

Motor Vehicles Act, 1988, S.149 – Insurance company – Liability – Accident occurred at 2 p.m. on the day of taking policy – Insurance policy was taken on 4.15 p.m. – Written in policy that it is to commence from 4.15 p.m. – Held, Insurance Company is not liable to pay compensation. (New India Assurance Co. Ltd. Vs M.P.Parvathi) AIR 2004 Kerala 159

Motor Vehicles Act, 1988, S.149 – Motor accident – Liability of Insurance Company to a third party when licence of driver is fake – In order to avoid liability it is not sufficient to show that the person driving at the time of accident was not duly licensed – Insurance Company must establish that the breach was on the part of the insured. (United India Insurance Company Ltd. Vs Lehru & Ors.) 2003(2) Apex Court Judgments 18 (S.C.)

Motor Vehicles Act, 1988, S.149(2) – Goods vehicle – Death of passengers travelling in goods vehicle when it met with an accident – Held, Act does not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods carriage and the insurer would have no liability therefor. (Oriental Insurance Company Ltd. Vs Devireddy Konda Reddy & Ors.) 2003(1) Apex Court Judgments 247 (S.C.)

Motor Vehicles Act, 1988, S.149(2) – Vehicle insured – Driver having no licence – Insurer is liable to award amount to third parties, whether or not there has been any breach or violation of the policy conditions – Insurer can later recover the amount from the insured. (Oriental Insurance Co.Ltd. Vs Narayanan) 2002(1) Criminal Court Cases 129 (Kerala)

Motor Vehicles Act, 1988, Ss.149 & 2 – Driver’s licence – Had expired on the date of accident – Renewed subsequently – It will fulfil the mandate of the statute – Insurer is not absolved of the liability to indemnify the insured merely because the driving licence had not been renewed on the date of accident. (Oriental Insurance Co.Ltd. Vs Paulose) 2004(2) Civil Court Cases 315 (Kerala)

Motor Vehicles Act, 1988, Ss.149 & 168 – Accident occurred when learners licence had expired – Insurance company cannot escape its liability – If rider of vehicle did not obtain renewal, it cannot be said that rider did not know how to drive the vehicle – This does not tantamount to breach of condition of the policy. (Oriental Insurance Co. Ltd. Vs Smt.K.Sundaramma alias Sundara & Ors.) 2005(1) Civil Court Cases 79 (Karnataka)

Motor Vehicles Act, 1988, Ss.149 & 168 – Death of cyclist in an accident between lorry and cycle – Accident occurred due to rash and negligent driving of lorry – Plea taken of “non use” of vehicle during relevant period – Certificate issued by RTO not indicating that RTO in fact verified that vehicle was in “non use” on the relevant date – No evidence on record to show that vehicle was not actually brought on the road during relevant period – Insurance Company did not have any opportunity to defend itself in light of its limited liability cover note – Claim remanded to be tried only on the question as to whether the Insurance Company was liable for payment of compensation in view of the insurance policy – The issue regarding “non-use” will not be reopened at the hearing of the application. (Mohanraj Bhiku Gandhi Vs Kadamma Nanumanta Reddy & Anr.) 2005(2) Civil Court Cases 441 (Bombay)

Motor Vehicles Act, 1988, Ss.149(2), 137, Constitution of India, Art.227 – Motor accident – Claim petition – Writ petition against order of compensation – Insurer’s right to appeal is limited only to a few grounds under the statute and the same cannot be enlarged in exercise of jurisdiction under Art.227 – High Court does not act as an Appellate Court or Tribunal and it cannot review or re-evaluate the evidence upon which the lower court or tribunal passed the order or to correct errors of law – Petition under Art.227 to challenge the award of compensation is not maintainable. (Sadhana Lodh Vs National Insurance Company Ltd. & Anr.) 2003(2) Apex Court Judgments 12 (S.C.)

Motor Vehicles Act, 1988, Ss.149(2)(a)(ii) & 3 – Licence to drive Light Motor Vehicle whereas vehicle involved in accident was heavy goods vehicle – Mere raising of such a plea is not sufficient – Nexus between accident and factum of driver not holding particular type of driving licence should be shown – Insurer has to prove that insured was guilty of negligence and failed to exercise reasonable care in matter of fulfilling condition of policy regarding use of vehicle by duly licensed driver or one who was not disqualified to drive at relevant time –  When accident has no nexus with factum of driver not having particular type of driving licence, insurer cannot be allowed to avoid liability merely on ground of technical breach of condition concerning driving licence. (Mohammed Salar Vs Syed Ibrahim & Ors.) 2005(2) Civil Court Cases 28 (Karnataka)

Motor Vehicles Act, 1988, Ss.149(2)(a)(ii) & 147, 2(10) and 3 – Learner’s driving licence – Is also a valid licence. (National Insurance Co. Ltd. Vs Bhagwani & Ors.) 2004(1) Apex Court Judgments 672 (S.C.)

Motor Vehicles Act, 1988, Ss.157, 149 – Transfer of vehicle – Insurance policy expiring much after transfer – New policy taken in the name of transferor and not in the name of transferee – Vehicle involved in accident – Transferee is liable to pay the compensation amount and not the Insurance Company as vehicle in question was not covered by any valid insurance policy, when accident occurred. (Pushpa alias Leela & Ors. Vs Shakuntla & Ors.) 2005(1) Civil Court Cases 645 (H.P.)

Motor Vehicles Act, 1988, S.163-A – Deceased driver of motor vehicle – Owner and Insurance Company are liable to pay compensation under “no fault liability” where accident takes place “arising out of the use of motor vehicle. (New India Assurance Company Ltd. Vs Shyamo Chauhan & Ors.) 2005(1) Civil Court Cases 618 (P&H)

Motor Vehicles Act, 1988, Ss.163-A, 166 – Accident – Claim petition – A claimant cannot pursue his remedies under both the provisions simultaneously – One must opt either to go for a proceeding under S.163-A or under S.166 of the Act, but not under both. (Deepal Girishbhai Soni & Ors. Vs United India Insurance Co. Ltd., Baroda) 2004(2) Civil Court Cases 393 (S.C.)

Motor Vehicles Act, 1988, S.165 – Tractor used for propelling thrasher – Deceased wrapped with belt and struck against thrasher due to rash and negligent starting of tractor – Merely because tractor was not plied on road does not mean that accident had not occurred arising out of ‘use’ of motor vehicle. (United India Insurance Company Ltd. Vs Sardari Lal & Ors.) 2005(1) Civil Court Cases 791 (H.P.)

Motor Vehicles Act, 1988, S.166, Civil Procedure Code, 1908, O.41.R.27 – Award – Additional evidence – Report of pay commission entitling deceased to higher pay from date prior to accident – Held, this amount to be taken into consideration while determining the compensation. (Vijay Luxmi Vs State of Haryana) 2003(3) Civil Court Cases 232 (P&H) 

Motor Vehicles Act, 1988, S.166, Civil Procedure Code, 1908, O.9.R.9 – Claim petition – Dismissal for default – Restoration – Sufficient cause – Claimant ill on date of hearing and application supported by Medical certificate – Statement made on oath remaining uncontroverted – Restoration application allowed. (Mahendra Rathore Vs Omkar Singh) AIR 2002 S.C. 505

Motor Vehicles Act, 1988, S.166 – “Just and reasonable” – Deceased 25 years of age, an agriculturist and in avocation of purchasing and selling cattles and selling milk – Tribunal assessed income at Rs.4,500/- p.m. and calculated dependency loss at Rs.3000/- p.m. – Compensation of Rs.6.5 lacs awarded by applying multiplier of 18 for the widow, minor son and mother of deceased – High Court upheld the compensation – Normal rule about deprivation of income is not strictly applicable where agricultural income is source – No material placed before Tribunal to prove income of deceased or type of land deceased possessed – As matter is pending for some years as such instead of remitted back the case, monthly income fixed at Rs.3000/- p.m. and financial contribution for claimants at Rs.2000/- p.m. – Multiplier of 18 applied – Compensation comes to Rs.4,32,000/- plus Rs.2,000/- as funeral expenses – Interest at 9% allowed by Tribunal maintained – Directions issued for keeping some amount in fixed deposit. (State of Haryana & Anr. Vs Jasbir Kaur & Ors.) 2003(2) Apex Court Judgments 390 (S.C.)

Motor Vehicles Act, 1988, S.166 – Accident – Deceased fruit seller – Age of deceased given by claimants 32 years whereas as per post mortem report age given as 39 years – Tribunal took the age as 39 years and applied multiplier of 16 – Income taken as Rs.4,000/- and dependency taken as Rs.3,000/- per month – Compensation assessed as Rs.5.76 lakhs – Award upheld. (National Insurance Company Ltd. Vs Sangeeta Sharma & Ors.) 2005(2) Civil Court Cases 410 (P&H)

Motor Vehicles Act, 1988, S.166 – Award – Deceased 31 years of age – Multiplier of 21 applied – Multiplier applied being in excess of that given in schedule – Multiplier of 17 applied. (Vijay Luxmi Vs State of Haryana) 2003(3) Civil Court Cases 232 (P&H) 

Motor Vehicles Act, 1988, S.166 – Award – Loss of consortium and future prospects – Deceased a brilliant Scientist – Held, appellants are entitled to a sum of Rs.25,000/- on this aspect. (Vijay Luxmi Vs State of Haryana) 2003(3) Civil Court Cases 232 (P&H) 

Motor Vehicles Act, 1988, S.166 – Bus plunged into a pit by rolling down from great height – It is not an act of God. (The Divisional Controller, KSRTC Vs Mahadeva Shetty & Anr.) 2004(3) Civil Court Cases 23 (S.C.)

Motor Vehicles Act, 1988, S.166 – Bus stopped at railway gate – Deceased got down from bus and standing in between gate and bus – Driver of bus without taking care whether all passengers travelling in the bus have boarded or not, started the bus and dashed against the deceased causing instantaneous death – Eye witnesses deposed to accident occurred – Driver of bus, when examined, not explained how accident occurred – Finding of Tribunal on appreciation of evidence on record that accident occurred due to negligence of driver of offending bus – Upheld. (APSRTC, Salur Depot & Anr. Vs Jeeri Rama Rao & Ors.) 2005(1) Civil Court Cases 780 (A.P.)

Motor Vehicles Act, 1988, S.166 – Claim petition – Dismissal for default – Restoration – Insurance Company opposed application – Advocate of claimants remained ill and ultimately died – He did not inform dates of hearing to claimants – Insurance Company despite knowing of these facts, opposing application – Provisions of CPC not strictly applicable to proceedings before Tribunal – Poor claimants who had lost their only son aged 9 years in accident have to bear heavy litigation expenses – Cost of Rs.5000/- imposed on Insurance Company. (Bheru Lal Vs Raghubeer) AIR 2004 Rajasthan 83

Motor Vehicles Act, 1988, S.166 – Closure of railway gate –  Most of the passengers get down – When bus is about to start after opening of the railway gates, it is the bounden duty of the driver of the bus to take care of the passengers who are travelling in it and then to start the bus. (APSRTC, Salur Depot & Anr. Vs Jeeri Rama Rao & Ors.) 2005(1) Civil Court Cases 780 (A.P.)

Motor Vehicles Act, 1988, S.166 – Compensation – Future medical expenses – Replacing artificial leg every two to three years – Considering this aspect, one lac awarded as an additional compensation to meet the said expenses from the interest of this amount to be invested on long term fixed deposit in a bank  so that recurring medical expenses could be met. (Nagappa Vs Gurudayal Singh) 2003(1) Criminal Court Cases 315 (S.C.)  

Motor Vehicles Act, 1988, S.166 – Compensation – Permanent disability 17% – Skilled labourer – Entitled to receive Rs.2772/- per month even though injured himself stated that he was earning Rs.4,000/- per month – Taking into consideration expenses incurred and also other factors, multiplier of 16 applied and Rs.1,82,740/- awarded – Order, upheld. (U.P. State Roadways Transport Corporation Vs Mohd. Farid & Ors.) 2005(1) Civil Court Cases 822 (Delhi)

Motor Vehicles Act, 1988, S.166 – Compensation and damages – Object of providing compensation is to place claimant as far as possible in the same position financially as he was before accident – A person becomes entitled to damages for the mental and physical loss, his or her life may have been shortened or that he or she cannot enjoy life which has been curtailed because of physical handicap. The normal expectation of life is impaired – Expression “just” denotes equitability, fairness and reasonableness, and non-arbitrary. (The Divisional Controller, KSRTC Vs Mahadeva Shetty & Anr.) 2004(3) Civil Court Cases 23 (S.C.)

Motor Vehicles Act, 1988, S.166 – Deceased earning Rs.3577/- having wife and three minor children –  Unit system applied – Two units each awarded to adults and one each to minor – Dependency works out to Rs.2455/- being 5/7th of Rs.3577/- – Multiplier of 16 applied. (Shobha Rani Vs Punjab State Electricity Board) 2005(1) Civil Court Cases 802 (P&H)

Motor Vehicles Act, 1988, S.166 – Disability – Medical Board constituted by reputed doctors who are serving in PGI Chandigarh opined that head injury suffered by claimant led to 100 percent permanent disability – Assessment of injuries cannot be doubted at all – Insurance Company levelled wild allegations against the doctors who are serving in an institution of high repute – Petition dismissed –  Cost of Rs.2,000/- imposed. (United India Insurance Co. Vs Parbhat Singh & Ors.) 2005(2) Civil Court Cases 306 (P&H)

Motor Vehicles Act, 1988, S.166 – Two claim petitions on the same cause of action – One petition dismissed for default – Such dismissal cannot by itself be a ground for dismissal of the other claim petition. (Hussain Pasha Vs Managing Director, A.P.S.R.T.C., & Anr.) 2005(1) Civil Court Cases 674 (A.P.)

Motor Vehicles Act, 1988, Ss.166, 158(4) and (6) – Compensation can be awarded exceeding the claimed amount – It is just compensation which is to be awarded even if precise amount is not claimed – In accident claim cases there is no question of claim being time barred – By enhancing the claim there is no change of cause of action – In appropriate cases, Court may permit amendment to the Claim Petition. (Civil Procedure Code, 1908, O.6.R.17). (Nagappa Vs Gurudayal Singh) 2003(1) Criminal Court Cases 315 (S.C.)  

Motor Vehicles Act, 1988, Ss.166, 168 – Motor Accident – Victim at the relevant time 40 years of age – Earing Rs.3500/- per month – Had a stable job as such liberal view of his future prospects to be taken into consideration – Yearly income assessed as Rs.45,000/- out of which one-third of gross income towards personal living expenses to be deducted – Rs.30,000/- determined as the loss of dependency – Said sum to be capitalized by applying multiplier of 15 which comes to Rs.4,50,000/-. (Abati Bezbaruah Vs Dy.Director General Geological Survey of India & Anr.) 2003(1) Apex Court Judgments 448 (S.C.)

Motor Vehicles Act, 1988, Ss.166, 173 – Vehicular accident – Death – Compensation – Personal expenses – Deduction – What would be the percentage of deduction for personal expenditure cannot be governed by any rigid rule or formula of universal application – It depends upon circumstances of each case – If the deceased was aged about 27 years and a bachelor, it would be appropriate to restrict the deduction for personal expenses to one third of the monthly income of the deceased. (Fakeerappa & Anr. Vs Karnataka Cement Pipe Factory & Ors.) 2004(1) Apex Court Judgments 478 (S.C.)

Motor Vehicles Act, 1988, Ss.166 & 168 – Joint tort feasors – Composite negligence – Apportionment – It is not necessary to apportion the claim when it is not possible to determine the ratio of negligence of joint tort feasors. (Sushila Bhadoriya & Ors. Vs M.P.State Road Transport Corporation) 2005(2) Civil Court Cases 338 (M.P)

Motor Vehicles Act, 1988, Ss.166 & 168 – Joint tort feasors – Composite negligence – Death on account of act of two vehicles – Owner, driver and Insurer of one of the vehicles can be sued and it is not necessary to sue owner, driver and insurer of both the vehicles – Claimant may impleaded owner, driver and insurer of both the vehicles or any one of them – There can be no apportionment of the liability of joint tort feasors – In case both the joint tort-feasors are impleaded as party and there is sufficient material on record then Claim Tribunal can consider the question of apportionment – However, on general principle of law there is no necessity to apportion the inter se liability of joint tort-feasors. (Sushila Bhadoriya & Ors. Vs M.P.State Road Transport Corporation) 2005(2) Civil Court Cases 338 (M.P)

Motor Vehicles Act, 1988, S.168 – Accident – Bags carried alongwith passengers lost – Reason given that claimants suffered injuries and no care was taken by anybody on behalf of owner or driver to safeguard their goods – No specific denial by owner, driver of vehicle – Loss considered to be proved – Compensation awarded on basis of loss of goods claimed. (Rajasthan State Road Transport Corporation Vs Babu Singh) AIR 2002 Rajasthan 186

Motor Vehicles Act, 1988, S.168 – Compensation – Can be awarded in excess of what is claimed when evidence led in the case is sufficient to pass such award – Function of Tribunal/Court is to award just compensation, which is reasonable on the evidence produced on record. (Daba Prashad Ghosh Vs Banwari Lal & Ors.) 2005(2) Civil Court Cases 212 (P&H)

Motor Vehicles Act, 1988, S.168 – Compensation – Disbursement of amount – Amount deposited in Fixed deposit in name of husband and children of deceased – Required for construction/repair of house out of this amount – Cannot be denied to husband – Court is required to see that amount disbursed is actually utilised for purpose it is granted. (Ghelaji Mathurji Thakor Vs GSRTC) AIR 2003 Gujarat 114

Motor Vehicles Act, 1988, S.168 – Injured a household lady of 35 years of age – She suffered one incised wound on the right side of the hip and two bruises – She remained admitted in hospital for 1-1/2 months and thereafter she remained confined to bed in her house – She suffered only 2% permanent disability – Held, Tribunal had rightly awarded Rs.30,000/- as compensation. (Bala Devi Vs State of Haryana & Ors.) 2005(2) Civil Court Cases 61 (P&H)

Motor Vehicles Act, 1988, S.168 – Injuries suffered in accident – Treatment of victim continued due to infection – Future expenses for treatment can be awarded. (Chacko Vs Abdul Rahiman) 2005(1) Civil Court Cases 711 (Kerala)

Motor Vehicles Act, 1988, S.168 – Vehicle involved in accident subject to hire purchase agreement – Vehicle in possession of hirer at time of accident – Dispute between hirer and financier regarding renewal of Insurance Policy – Financier of vehicle subject to hire-purchase agreement not necessary party to proceedings. (P.T.R.Bava Vs Pourakath Cheriya Bava) AIR 2004 Kerala 162

Motor Vehicles Act, 1988, Ss.168, 2(3) – Accident – Ownership – Vehicle involved in accident subject to hire purchase agreement – Question as to who is in possession of vehicle involved in accident – is only material and not as to who is real owner in abstract sense of term. (P.T.R.Bava Vs Pourakath Cheriya Bava) AIR 2004 Kerala 162

Motor Vehicles Act, 1988, Ss.168, 50 – Sale of vehicle – Liability to pay – Vehicle transferred to appellant on payment of consideration by its registered owner – Letter of delivery of vehicle to appellant produced on record which was not rebutted by him – But said document did not carry with it any other reliable evidence to believe that vehicle in fact was sold – Vehicle remained registered in the name of its original owner – In absence of compliance with S.50 ownership of vehicle remains with registered owner as such registered owner of vehicle and not the appellant would be liable to pay compensation to claimant. (Imran Ansary Vs Hajrat Ali Ansary) AIR 2004 Jharkhand 18

Motor Vehicles Act, 1988, Ss.168, 163-A and Second Schedule – School boy aged seven years – Death of – Compensation – Rs.15,000/- per annum can be taken as notional income of such non earning person – After deducting 1/3rd of it towards expenses which deceased would have incurred on maintaining himself had he been alive and by applying multiplier of 15 amount of damages payable for loss of dependency works out to Rs.1,50,000/-. (Mohammed Salar Vs Syed Ibrahim & Ors.) 2005(2) Civil Court Cases 28 (Karnataka)

Motor Vehicles Act, 1988, Ss.168, 173 – Accident – Compensation – Future prospectus – No amount awarded with regard to future prospectus – Amount deducted on account of personal expenses added in the monthly income on account of future prospectus – Multiplier of 13 rightly applied – Award modified accordingly. (Sobhagyavati & Ors. Vs Som Nath & Ors.) 2005(1) Civil Court Cases 755 (Rajasthan)

Motor Vehicles Act, 1988, Ss.168, 173 – Accident claim petition – Deceased 30 years of age and his income assessed to be Rs.45,000/- per annum – 1/3 deduction towards the amount which deceased would have spent on himself allowed – Multiplier of 17 applied – Rs.10,000/- to each of the claimants allowed on account of loss and affection of the deceased – Award thus comes to Rs.5,70,000/-. (Oriental Insurance Co. & Anr. Vs Smt.Radha & Ors.) 2005(2) Civil Court Cases 121 (Rajasthan)

Motor Vehicles Act, 1988, S.168 – Award of compensation more than claimed – No restriction if the same appears to be “just compensation” – Deceased aged 32 years having M.B.B.S. qualification and doing internship – Court not only to take into account present income but also to estimate income which deceased would have earned in future – Average monthly salary of Medical Officer between 1983 and 1996 assessed at Rs.7,500/- p.m. – Average dependency comes to Rs.5,000/- p.m. – By applying multiplier of 15 dependency loss comes to Rs.9,00,000/- – In Addition Rs.10,000/- as awarded for loss of estate maintained – Amount of compensation enhanced from Rs.4,55,000/- to Rs.9,10,000/- which will carry interest at 9% p.a. from date of cross objection to date of actual payment. (Gujarat State Road Transport Corporation Vs Patel Rajabhai Bavabhai & Ors.) 2004(2) Civil Court Cases 327 (Gujarat)

Motor Vehicles Act, 1988, S.168 – Injuries suffered in accident – Treatment of victim continued due to infection – Future expenses for treatment can be awarded. (Chacko Vs Abdul Rahiman) 2005(1) Civil Court Cases 711 (Kerala)

Motor Vehicles Act, 1988, S.168 – Stones thrown at Bus by miscreants – A stone hurled at wind screen smashed the glass and hit the deceased causing his death –  Claim petition – Held, accident had arisen out of the use of motor vehicle and claim petition is maintainable. (Varalakshmi & Ors. Vs Andhra Pradesh State Road Transport Corporation Ltd.) 2004(3) Civil Court Cases 216 (Karnataka)

Motor Vehicles Act, 1988, Ss.168, 173 – Accident – Compensation – Future prospectus – No amount awarded with regard to future prospectus – Amount deducted on account of personal expenses added in the monthly income on account of future prospectus – Multiplier of 13 rightly applied – Award modified accordingly. (Sobhagyavati & Ors. Vs Som Nath & Ors.) 2005(1) Civil Court Cases 755 (Rajasthan)

Motor Vehicles Act, 1988, S.170, Limitation Act, 1963, S.5 – Appeal – Delay – 268 days delay in filing appeal against award in an accident claim petition – Delay alleged to be on the part of Advocate – Nothing to prove as to what action had been taken against Advocate who allegedly played fraud upon the appellant – Sufficient cause thus not shown to condone delay in filing appeal. (Bala Devi Vs State of Haryana & Ors.) 2005(2) Civil Court Cases 61 (P&H)

Motor Vehicles Act, 1988, S.171 – Compensation – Enhancement – Single Judge assigned no reason for not awarding interest on the enhanced amount of compensation – Held, claimants are entitled to interest @ 9% per annum on enhanced amount of compensation from the date of claim petition.

Motor Vehicles Act, 1988, S.171 – Motor accident – Interest – Depends upon facts and circumstances of each case – Award of interest would normally depend upon the bank rate prevailing at the relevant time. (Abati Bezbaruah Vs Dy.Director General Geological Survey of India & Anr.) 2003(1) Apex Court Judgments 448 (S.C.)

Motor Vehicles Act, 1988, S.171 – Motor accident – Interest – Must be just and reasonable depending upon facts and circumstances of each case – All relevant factors including inflation, change of economy, policy being adopted by Reserve Bank, how long case is pending, permanent injuries suffered by victim, enormity of suffering, loss of future income, loss of enjoyment of life etc. to be taken into consideration – Interest can be granted even if claimant does not specifically plead for the same – Neither S.34 CPC nor S.4-A(3) of the Workmen’s Compensation Act are applicable in the matter of fixing rate of interest in a claim under the Motor Vehicles Act. (Abati Bezbaruah Vs Dy.Director General Geological Survey of India & Anr.) 2003(1) Apex Court Judgments 448 (S.C.)

Motor Vehicles Act, 1988, S.173 – Insured filing no appeal against award – It is not permissible for an insurer to file an appeal questioning the quantum of compensation as well as findings as regards negligence or contributory negligence of the offending vehicle. (National Insurance Co.Ltd. Vs Nicolletta Rohtagi & Ors.) 2003(1) Apex Court Judgments 373 (S.C.)

Motor Vehicles Act, 1988, S.173 – Motor accident – Ownership of vehicle involved in accident – Insurance Certificate produced found to be a fictitious document – Documentary evidence as to ownership of vehicle not produced – Witnesses examined on behalf of the claimants did not utter even a single word as to ownership of vehicle involved in accident – In FIR nothing mentioned as to who was driving the vehicle at the time of accident – Copy of charge sheet filed but it is not a substantive piece of evidence and its production alone cannot be treated as an evidence in a claim petition – Held, Tribunal has committed no illegality in rejecting the claim petition. (Bhanwar Lal & Ors. Vs Surjeet Singh & Ors.) 2005(2) Civil Court Cases 159 (Rajasthan)

Motor Vehicles Act, 1988, Ss.230 & 41 – Purchase of vehicle under hire purchase agreement – Hirer is owner for purpose of Motor Vehicles Act – Person in possession under hire purchase agreement is entitled to move an application under S.41 of the Act so as to enable him to get his name entered as registered owner in the Certificate of Registration. (M/s.Ashok Leyland Finance Ltd. Vs Ramesh Kumar) 2002(3) Criminal Court Cases 69 (P&H) 

Municipal record – Proof of ownership – Entries in House Tax assessment register and property tax register – Such entries are not proof of ownership. (Bisheshar Nath & Anr. Vs Shanti Devi (Dead) through LRs) 2005(1) Civil Court Cases 301 (P&H)

Muslim Law – Divorce – Effort to reconcile – Not a precondition for pronouncement of divorce by husband. (Syed Maqsood Vs State of A.P.) AIR 2003 A.P. 123

Muslim Law – Talaq – Husband declaring talaq in letter written to wife – Proclamation of talaq not made thrice in letter – Talaq is not valid. (M.Shahul Hameed Vs A.Salima) AIR 2003 Madras 162

Muslim Law – Talaq – Must be for a reasonable cause – It must be preceded by reconciliation between husband and wife by two elders, one each of the spouse’s family. (Mohd.Ibrahim Vs Mehrunisa Begum) AIR 2004 Karnataka 261

Muslim Personal Law (Sheriat) Application Act, 1937, S.2 – Muslim wife – Maintenance – Second marriage by husband without consent of wife – Wife was ill-treated and was forced to live separately – Wife had no independent income of her own – Husband working as driver and drawing salary of Rs.6,500/- per month – Grant of maintenance at Rs.1,300/- per month to wife by taking into consideration social status of parties is proper. (Mohd.Ibrahim Vs Mehrunisa Begum) AIR 2004 Karnataka 261

Muslim Women (Protection of Rights on Divorce) Act, 1986, S.3 – Criminal Court exercising jurisdiction under the Act, has power to direct interim conditional attachment of properties belonging to the divorced husband when there is apprehension that he may dispose off his properties. (Assya Vs State of Kerala) 2004(3) Civil Court Cases 427 (Kerala)

Muslim Women (Protection of Rights on Divorce) Act, 1986, S.3 – Pleading – Amendment – Magistrate has power to allow amendment of pleadings even though there is no specific provision – Criminal Courts are not powerless to do what is absolutely necessary for dispensation of justice in the absence of enabling provision provided there is no prohibition or no illegality or miscarriage of justice is involved. (Sainulabdheen Vs Beena) 2004(2) Civil Court Cases 576 (Kerala)

Muslim Women (Protection of Rights on Divorce) Act, 1986, Ss.3, 6, Criminal Procedure Code, 1973, S.397 – Revision against order passed by a Magistrate under Muslim Women (Protection of Rights on Divorce) Act is maintainable before Sessions Judge. (Saman Ismail Vs Rafiq Ahmad) 2002(3) Criminal Court Cases 358 (Allahabad) 

Narcotics Control Bureau – Not an authority created or constituted by the Act but is an authority created under the Act – NCB is a Department of Central Government – The notification empowering its officers to exercise powers under Ss.36A, 41, 42 and 67 of NDPS Act are valid – Search and seizure carried out by such officers and the arrests made by them in exercise of such power is authorized and warranted – Complaint lodged by the empowered officer is also authorized. (State Through Narcotics Control Bureau Vs Kulwant Singh) 2003(1) Apex Court Judgments 410 (S.C.)

National Security Act, 1980, Ss.3(2) and 5-A – Preventive detention – Order based on criminal background followed by a murder in busy market by detenu – Order of detention, upheld. (State of U.P. & Anr. Vs Sanjai Pratap Gupta alias Pappu & Ors.) 2005(1) Criminal Court Cases 829 (S.C.)

National Security Act, 1980, Ss.3(2) and 5-A – Public order and Law and order – Distinction – Public order has a narrower ambit and public order could be affected by only such contravention which affects the community or the public at large – Law and order is wider in scope inasmuch as contravention of law always affects order – Distinction between the areas of ‘law and order’ and ‘public order’ is one of the degree and extent of the reach of the act in question on society – It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order. (State of U.P. & Anr. Vs Sanjai Pratap Gupta alias Pappu & Ors.) 2005(1) Criminal Court Cases 829 (S.C.)

National Security Act, 1980, Ss.3(2) and 5-A – Single act which affects tempo of time – Sufficient ground to pass an order of detention. (State of U.P. & Anr. Vs Sanjai Pratap Gupta alias Pappu & Ors.) 2005(1) Criminal Court Cases 829 (S.C.)

Natural justice – One of the salutary requirements of natural justice is spelling out reasons for the order made i.e. a speaking order. (State of Punjab Vs Bhag Singh) 2004(2) Criminal Court Cases 252 (S.C.)

Natural justice – No one should be condemned unheard – Notice is the first limb of this principle – Notice must be precise and unambiguous and it should appraise the party determinatively the case he has to meet – Time given for the purpose should be adequate so as to enable him to make his representation – In the absence of such a notice and such reasonable opportunity,  order passed becomes wholly vitiated. (Canara Bank Vs V.K.Awasthy) 2005(1) Apex Court Judgments 611 (S.C.)

Negotiable Instruments Act, 1881, Ss.4, 5, 17 and 13(1) Expl.(i), (ii) & (iii) – Promissory note or Hundi – Unconditional undertaking that defendant has promised to pay or order the specified amount to petitioner – Held, document is promissory note – Mere inscription of word “Hundi” above stamp, not sufficient to hold the document as “Shah Jog Hundi”. (Smt.Krishna Devi Vs Firm Tikayaram Lekhraj Batra) AIR 2002 M.P. 47

Negotiable Instruments Act, 1881, S.18 – Amount in figures and words different – Amount stated in words would prevail. (K.Mani Vs Elumalai) 2003(3) Civil Court Cases 247 (Madras) 

Negotiable Instruments Act, 1881, S.20 – Promissory note – Blank – Holder in due course can fill up the blanks and negotiate the instrument. (K.Mani Vs Elumalai) 2003(3) Civil Court Cases 247 (Madras) 

Negotiable Instruments Act, 1881, Ss.27, 28 – Bank loan – Suit for recovery – Demand promissory note and other documents not indicating that defendants signed same as Directors of company – Directors of company would be personally liable under instrument. (Indian Bank Vs M/s B.Patnaik Mines (P) Ltd.) AIR 2003 Orissa 81

Negotiable Instruments Act, 1881, Ss.68, 70 – Pronote – Indorsement – Jurisdiction – Territorial jurisdiction is governed by provisions of Act for presentation of negotiable instruments – Indorsement of promissory note cannot be treated as part of cause of action u/s 20(c) of CPC – Holder in due course cannot entertain suit in Court at a place where indorsement on instrument takes place. (S.S.V.Prasad Vs Y.Suresh Kumar & Anr.) 2005(1) Civil Court Cases 759 (A.P.) : 2005(2) Criminal Court Cases 608 (A.P.)

Negotiable Instruments Act, 1881, S.80 – Interest – Agreement between parties not to charge interest – Cheque given towards repayment of loan – Cheque dishonoured – Suit instituted on dishonour of cheque – Held, agreement cases to bind parties – Debtor is liable to pay interest as envisaged u/s 80 of the Act. (P.Mohan Vs Basavaraju) 2003(2) Civil Court Cases 406 (Karnataka) 

Negotiable Instruments Act, 1881, S.118 – Consideration – Presumption –  Advance paid – Notice to repay – Reply not sent till attachment made on his property after filing of suit – Also admitted in evidence that amount was payable to plaintiff – Presumption u/s 118 available to plaintiff not successfully rebutted by defendant – Decree passed in favour of plaintiff not improper. (Muhammandkutty Vs Varamangalath Yusuf) AIR 2002 Kerala 227

Negotiable Instruments Act, 1881, S.118 – Pronote – Consideration – If execution is proved there is presumption of consideration – Scribe of pronote in his evidence stated that defendant was not present when he filled up the blank pronote and no consideration was paid in his presence – Attesting witnesses not examined – Held, plaintiff has failed to prove the case of execution of pronote and payment of consideration. (C.Sesha Reddy Vs T.Basavana Goud) 2004(2) Civil Court Cases 23 (Karnataka)

Negotiable Instruments Act, 1881, S.118 – Pronote – Execution – Contention of defendant that he had only signed on the stamp and rest of the document was blank – Such an admission cannot be construed as an admission of execution of the pronote. (C.Sesha Reddy Vs T.Basavana Goud) 2004(2) Civil Court Cases 23 (Karnataka)

Negotiable Instruments Act, 1881, S.118 – Pronote and receipt – Execution duly proved – There is presumption of consideration passed on to defendant at the time of execution of pronote and receipt. (Harnek Singh Vs Surjit Singh) 2003(2) Civil Court Cases 658 (P&H) 

Negotiable Instruments Act, 1881, S.118 – Rebuttal of presumption – Promissory note – Defence plea that promissory note was executed as security for payment of Rs.15,000/- out of which Rs.10,000/- was already paid and Rs.5,000/- is yet to be paid – This plea was established by production of account books and proof of its entries – Court below rightly accepted defence plea as presumption is rebutted. (S.K.Songappa Gounder Vs K.P.Muthusamy) 2003(3) Civil Court Cases 675 (Madras) 

Negotiable Instruments Act, 1881, S.118(a) – Promissory note – As security for payment of last three chit instalments promissory note executed – Evidence that payment towards two last chits paid – Presumption u/s 118(a) though arises but the same is rebutted by defendant by establishing that payment towards one chit remains – Order decreeing suit only in respect of Rs.5,000/- with interest is proper. (S.K.Songappa Gounder Vs K.P.Muthusamy)  AIR 2002 Madras 346

Negotiable Instruments Act, 1881, S.118(a) – Promissory note – Scribe proving execution of pronote – Comparison of signatures showing that signature on promissory note was that of defendant – Presumption under S.118(a) arises that execution of promissory note was supported by consideration – Failure by defendant to prove non-existence of consideration – Held, plaintiff is entitled to benefit of presumption and thus entitled to recovery of money. (T.N.Boopathy Vs T.A.Sattu) AIR 2002 Madras 177

Negotiable Instruments Act, 1881, S.131 – Forged cheque – Bank making payment – Bank failed to prove good faith as required under S.131 of the Act – Aggrieved party filing suit for recovery of the amount of cheque – Held, suit validly decreed against bank. (Kerala State Co-operative Marketing Federation Vs State Bank of India & Ors.) 2004(2) Apex Court Judgments 553 (S.C.) : 2004(3) Criminal Court Cases 276 (S.C.)

Negotiable Instruments Act, 1881, S.131 – Protection under section 131 – Negligence in permitting to open account, presentation of cheque, collection of the amount and allowing encashment the next day without verification – Not entitled to the protection. (Kannur District Co-op. Bank Ltd. Vs Kerala State Co-operative) 2003(2) Civil Court Cases 123 (Kerala) 

Nomination – Insurance – Nominee is only authorised to receive money on behalf of all legal heirs – Legal heirs can also claim the insurance money despite nomination in accordance with law of succession. (Amar Singh Vs Shashi Bala) 2003(2) Civil Court Cases 294 (P&H) 

Notaries Act, 1952, Ss.8, 15, Notaries Rules, 1956, R.11(5) – Notary – Irregularities by Notaries – Notary neither maintaining register in accordance with provisions of Notary Rules nor issuing receipt of fee charged by him and noting serial numbers thereof – Govt. not appointing sufficient number of officers to inspect registers of Notaries – In view of several irregularities in performance of notarial acts by notaries noticed by Courts, directions given for inspection of registers. (J.G.Hegde Vs R.D.Shukla) 2004(2) Civil Court Cases 700 (Bombay)

Notaries Act, 1952, Ss.8 & 3 – There is nothing in the Act or Rules making it mandatory that a person  who want to avail any notarial service should get it done from the Notary within whose jurisdiction he resides or works. (Abdul Kadir Vs Regional Passport Officer) 2004(2) Civil Court Cases 366 (Kerala)

Notice – Failure to reply – Does not amount to admission of the claim made in the notice. (Manepalli Udaya Bhaskara Rao Vs Kanuboyina Dharmaraju) 2004(3) Civil Court Cases 281 (A.P.)

Notice – Not signed by Advocate – As per requirement of statute notice sent but same not signed by Advocate – Held, such a notice is a proper notice – “Notice” in its legal sense may be defined as information concerning a fact actually communicated to a party through an authorised person, which information is regarded as equivalent to knowledge of its legal consequence. (Gopi Vs Joseph) 2004(2) Civil Court Cases 360 (Kerala)

Nuisance – Poultry business – Order to close down as poultry business was creating nuisance to the inhabitants of the locality – Order quashed – Magistrate has first to pass conditional order requiring the petitioner to close down the business or to show-cause as to why the conditional order should not be made absolute – Then only, the procedure envisaged under S.138 of the Code should be followed. (Mahankali Yellaiah Vs State of Andhra Pradesh) 2002(1) Criminal Court Cases 508 (A.P.)

Official Secrets Act, 1923, S.1(2) – Secret information passed to enemy country which could seriously jeopardize national security – Act is applicable to Indian citizens as well – Bail granted to accused in the pretext that he is neither Govt. servant or Indian citizen living outside, cancelled forthwith. (State of Rajasthan Vs Shamsunissa @ Mariyan) 2002(2) Criminal Court Cases 34 (Raj.)

Opium Act, S.9 – Opium – Chemical examiner is required to determine all the alkaloids which are present in the opium or a quite number of them, besides morphine so as to bring it within the ambit of the definition of opium and he has to establish the presence of meconic acid also. (Baaj Singh Vs State of Haryana) 2003(3) Criminal Court Cases 69 (P&H) 

Opium Act, S.9 – Opium – Recovery of 3-1/2 Kg. – Recovery supported by official witnesses who have no axe to grind against the accused – Recovery very heavy and it being a chance one as such independent corroboration is not required – It is also not believable that the I.O. will plant a huge quantity of opium from his personal resources – Conviction upheld – Sentence reduced from 1-1/2 years to six months. (Balwant Singh Vs State of Punjab) 2003(2) Criminal Court Cases 19 (P&H) 

Opium Act, S.9 – Opium – Recovery of 5 Kg. – Conviction – Accused facing trial for 21 years – Sentence reduced to already undergone i.e. 5 weeks. (Mohinder Kaur Vs State of Punjab) 2005(2) Criminal Court Cases 303 (P&H)

Opium Act, S.9 – Opium – Recovery of 20 Kgs. – No independent witness joined – Conviction on basis of official witnesses – Investigating Officer would not plant such a heavy quantity – Recovery was effected at mid night – No person would be willing to join the police party in the odd hours – Moreover there is no evidence on record that at the time when recovery was effected some independent witnesses were available and they had not been joined – Conviction upheld. (Lal Singh Vs The State of Punjab) 2003(3) Criminal Court Cases 249 (P&H) 

Opium Act, S.9 – Opium – Report of chemical examiner silent as to contents of meconic acid – Held, sample cannot be said to be of opium. (Baaj Singh Vs State of Haryana) 2003(3) Criminal Court Cases 69 (P&H) 

Opium Act, S.9 – Sentence –  Recovery of 1 Kg of Opium  from the possession of accused –  Conviction of accused  under S.9 of Opium Act   upheld  –  Incident 14 years old – Sentence  reduced from  9 months to already undergone. (Balwant Singh Vs State of Punjab) 2005(2) Criminal Court Cases 857 (P&H)

Opium Act, Ss.11 and 12 – Contraband carried by truck – Truck seized – Order of confiscation passed after considering  reply to show cause notice – Opportunity to lead evidence not granted – Order of confiscation cannot be passed without affording an opportunity to lead evidence – Order of confiscation set aside – Case remanded. (Shivji Ram Vs State of Punjab) 2005(2) Criminal Court Cases 676 (P&H)

Panchayat Elections and Election Petitions – Procedural laws relating to Panchayat elections and election petitions cannot be allowed to be interpreted with too much of rigidity and by indulging in hair-splitting. (Rupadhar Pujari Vs Gangadhar Bhatra) 2004(2) Apex Court Judgments 668 (S.C.)

Panchayat Elections – Election to the office of Sarpanch – Election set aside as respondent had more than two children at the time of nomination and appellant declared to be Sarpanch – High Court upheld finding as to disqualification of respondent but as petitioner had not sought relief to declare him elected the same reversed and directed authorities to proceed with re-election –  Procedural laws relating to Panchayat elections and election petitions cannot be allowed to be interpreted with too much rigidity – Held, when election of the only other candidate having been invalidated, petitioner being the single candidate has been duly elected. (Orissa Gram Panchayats Act, 1964, Ss.34, 38 and 40). (Rupadhar Pujari Vs Gangadhar Bhatra) 2004(2) Apex Court Judgments 668 (S.C.)

Pardanashin lady –  Old, illiterate and rustic villager – Though not a pardanashin lady but her position is not better than a pardanashin lady. (Sujan Kaur Vs Chand Singh) 2003(3) Civil Court Cases 254 (P&H) 

Partition – After passing of preliminary decree one of family member died – One more person became entitled to share as successor – Preliminary decree may be modified. (Shantilal Vs Mahendra Kumar & Ors.) 2003 (2) Civil Court Cases 706 (Raj.)

Partition – Mere possession of separate parcels of lands or living in separate mess for convenience – Do not necessary prove partition by metes and bounds. (Sri Pitambar Kar Vs Sri Trilochan Kar) 2003(2) Civil Court Cases 261 (Orissa) 

Partition Act, 1893, Ss.2 & 3 – Sale of property u/s 3(2) – Sale confirmed – Court cannot go behind it and examine whether there was consent of co-sharer or not – Co-sharer not filing appeal and sale reaching finality – order reaching finality – Not open to challenge. (Sukhendu Bikash Addy Vs Bipin Behari Addy) AIR 2002 Calcutta 60

Partnership Act, 1932, S.12(c) – Suit by firm – Only plaintiff firm can continue or withdraw the suit – Withdrawl of suit by majority of partners – Not permissible. (M/s Economic Transport Carrier Vs M/s Economic Transport Carrier) AIR 2003 Delhi 201

Partnership Act, 1932, S.12(c) – Trade name – Majority of partners permitting stranger to use their name or trade name – Not proper – They cannot trample or impede interest of minority partners. (M/s Economic Transport Carrier Vs Economic Transport Carrier) AIR 2003 Delhi 201

Partnership Act, 1932, S.14 – Partnership property – Property used for partnership purposes is necessarily not the partnership property – Property belonging to a partner does not become partnership property by being used for the purpose of partnership – There must be some evidence of an intention to treat the property as a part of the capital of the business – Where a partner brings certain property into the common stock as part of his capital, it becomes partnership property – Act has also specifically included the goodwill among the partners of the firm subject to any contract between the partners, in all accounts for determining the shares. (M/s.D.R.Associates Vs General Manager, East Coast Railways & Ors.) 2005(1) Civil Court Cases 328 (Orissa)

Partnership Act, 1932, S.14 – Property of one partner becomes the property of partnership firm only when there is an agreement, express or implied, that the property under the agreement of partnership to be treated as the property of the partnership. (Jai Narayan Misra Vs Hashmathunnisa Begum) AIR 2002 A.P. 389

Partnership Act, 1932, Ss.20, 22 – Firm and its partners – Liability – A partnership firm has no independent entity of its own and all the liabilities against the firm or all acts done by any one of its partners for and on behalf of the firm shall bind all the other partners as well – S.20 is an exception to the implied authority – Partners by contract between themselves extend or restrict the implied authority of any partner – However, notwithstanding any such restriction, any act done by a partner on behalf of the firm, which falls within his implied authority, binds the firm, unless the person with whom he is dealing knows of the restriction or does not know or believe that partner to be a partner – Onus to prove that such authority of partner is restricted is upon the person who claims such a restriction. (State Bank of India Vs M/s.Simko Engineering Works) 2005(1) Civil Court Cases 319 (P&H)

Partnership Act, 1932, S.22 – Promissory note – Liability of firm – Recitals in promissory note show that consideration was received for sake of the firm – Managing partner with an intention and with a view to bind firm had signed – Seal of firm also affixed – Managing Partner had executed promissory note and hence other partners of firm are also liable. (Vattumalli Narayana Rao Vs Medrappu Krishan Rao) AIR 2003 A.P. 46

Partnership Act, 1932, S.31 – New partner – Liability of pre-existing debts – He can be held liable if he has assumed liability and creditor has accepted him as debtor. (B.M.Devaiah Vs Canara Bank) AIR 2003 Karnataka 143

Partnership Act, 1932, S.32 – Liability of a retiring partner to third party – Can be discharged only if there is an agreement made by retiring partner with third party and the partners of reconstituted firm –  An agreement can be implied by the course of dealing between such third party and the reconstituted firm. (Syndicate Bank Vs M/s R.S.R.Engineering Works) 2003(3) Civil Court Cases 160 (S.C.) : 2003(2) Apex Court Judgments 44 (S.C.)

Partnership Act, 1932, S.32 – Retiring partner – Liability – Overdraft facility and medium term loan granted by Bank when defendant was partner of firm – Amount remained unpaid and partner retired in the meantime – Retirement of partner duly intimated to Bank – Revival letter in respect of loan and subsequent agreement was between bank and other partners – Undertaking given by other partners to Bank that they will be liable to pay – Bank never required defendant to sign revival letter – It could be said that Bank had accepted that agreement – Partners of reconstituted firm only liable for debts of old firm. (K.J.George Vs State Bank of Travancore) AIR 2002 Kerala 214

Partnership Act, 1932, Ss.32, 37 and 48 – Retirement of a partner – Relevant date for ascertaining the value of share of a retiring partner is the date on which he retired and date of report of evaluation by Commissioner is irrelevant – Retiring partner is entitled to interest on delayed payment. (Pamuru Vishnu Vinodh Reddy Vs Chillakuru Chandrasekhara Reddy & Ors.) 2003(1) Apex Court Judgments 422 (S.C.)

Partnership Act, 1932, S.42 – Death of one out of two partners – Automatic dissolution of partnership – Clause in partnership that firm would continue for certain number of years even if one parties dies – Such clause will not save firm from dissolution when heirs of deceased partner are unwilling to continue the firm. (Jai Narayna Misra Vs Hashmathunnisa Begum) AIR 2002 A.P. 389

Partnership Act, 1932, S.69 – Firm – Plaint signed by Manager authorised by one of the partners – His name not shown as partner in register of firms – Very institution of suit is bad for non compliance of mandatory provisions. (M/s Popular Automobiles Vs G.K.Chami) AIR 2002 Kerala 33

Partnership Act, 1932, S.69 – Partnership firm – Suit for money – Firm was proprietorship firm at the time of giving loan which was subsequently converted into partnership firm – Loan advanced not taken over by partnership firm – Suit filed by plaintiff in is individual capacity – Not liable to be dismissed on ground that partnership firm was not registered at the time of filing suit. (B.B.Patel Vs M/s Nexim Exports Pvt.Ltd.) AIR 2003 Delhi 183

Partnership Act, 1932, S.69 – Suit for accounting of dissolved firm – Field by unregistered firm – Is barred by S.69(1). (Shoib Ullah Vs Bhartesh Chandra Jain) AIR 2003 Allahabad 31

Partnership Act, 1932, S.69 – Unregistered firm – Suit for accounts of dissolved firm – Suit is barred by S.69(1) of the Act. (Shoib Ullah Vs Bhartesh Chandra Jain) 2003(2) Civil Court Cases 645 (Allahabad) 

Partnership Act, 1932, S.69 – Unregistered partnership firm – Suit by – Registration of firm during pendency of suit – Bar under S.69 does not apply. (M/s Samyuktha Cotton Trading Co. Vs Bheemineni Venkata Subbaiah & Ors.) 2005(1) Civil Court Cases 501 (A.P.)

Partnership Act, 1932, S.69(2), Civil Procedure Code, 1908, O.30.R.1 – Suit by partnership firm – Mandatory requirement of S.69(2) Partnership Act must be complied with alongwith procedural requirement of O.30 CPC. (Shah Velji Narsee Vs Vasantrai Umiyashankar Pandya) 2003(3) Civil Court Cases 344 (Bombay 

Partnership Act, 1932, S.69(2) – Partnership firm – Change in constitution of firm – Not carried out in register of Registrar of Firms – Suit not maintainable. (Shah Velji Narsee Vs Vasantrai Umiyashankar Pandya) 2003(3) Civil Court Cases 344 (Bombay 

Partnership Act, 1932, S.69(2) – Partnership firm – No dispute that plaintiffs are partners of the firm – No merit in the contention that suit is not maintainable. (Popular Automobiles  Vs Eddy Current Controls India Ltd.) 2003(1) Civil Court Cases 510 (Kerala)  

Partnership Act, 1932, S.69(2) – Partnership firm – Registration of firm after filing the suit – Cures the initial defect provided the bar of limitation does not come in – Even fresh suit on the same cause of action is permitted. (M/s. IBP Company & Anr. Vs M/s. Uday Singh Jeet Ram & Ors.) 2004(3) Civil Court Cases 699 (P&H)

Partnership Act, 1932, S.69(2) – Partnership firm – Suit by – Plea that firm is not a registered firm and hence suit is not maintainable – Is a jurisdictional fact and not a question of fact – Need not to be pleaded in written statement to take such a defence at hearing. (The Andhra Pradesh Co-operative Wool Spinning Mills Ltd. Vs G.Mahanandi and Company Wool Merchants and others) AIR 2003 A.P. 418

Partnership Act, 1932, S.69(2) – Suit by registered firm for recovery of loan – Filed by its partners – Name of two suing partners not registered in Register of firms – Held, suit cannot be said be not maintainable as the suit was not for enforcement of any right arising out of contract. (S.Prakashchand Vs Sha Harakchand) AIR 2002 Madras 372

Partnership Act, 1932, S.69(2) – Suit by unregistered partnership firm – Objection not taken in written statement – Even then suit must fail as firm is required to plead and prove registration. (Andhra Pradesh Co-op. Wool Spinning Mills Ltd. & Anr. Vs G.Mahanandi & Company) 2003(3) Civil Court Cases 560 (A.P.) 

Partnership Act, 1932, S.69(3), Arbitration and Conciliation Act, 1996, S.9 – Arbitration application by a partner of unregistered firm or by a person not shown as partner in Register of Firms  – Section 69 of Partnership Act has no bearing on right of a party to an arbitration clause to file an application u/s 9 of Arbitration Act. (Firm Ashok Traders & Anr. Vs Gurmukh Das Saluja & Ors.) 2004(1) Apex Court Judgments 148 (S.C.)

Partnership Act, 1932, Ss.69(2), 58 – Registered firm – Principal place of business shown in registration certificate but branch not mentioned – It does not take away the character of the firm as a registered firm. (Prayagchand Hariram Vs Deota Cloth Centre & Ors.) 2004(2) Civil Court Cases 395 (Bombay)

Passport Act, 1967, 6(2), 22(a) – Passport – Pendency of criminal case – Not a bar for issuance of a passport if applicant obtains permission from concerned Criminal Court to go abroad as per notification issued by Central Government. (Dhiren Baxi Vs Regional passport Officer) AIR 2003 Gujarat 108

Passport Act, 1967, S.5 – Passport – Correction of date of birth – Application before issuing authority not maintainable in absence of any provision conferring such powers. (B.R.Naresh Kumar Vs The Regional Passport Office) AIR 2003 A.P. 211

Payment of Bonus Act, 1965, Haryana Cooperative Society Act, 1984, Section 3 – Bonus – Claim by employees of Primary Agricultural Cooperative Banks at par with employees working in Apex Bank i.e. Haryana State Cooperative Land Development Bank Limited – Separate books of accounts maintained and separate balance sheets prepared by both the banks – Held that primary banks are separate  entities with their own registration number and the employees of primary banks are not entitled to the same bonus as of the Apex Bank. (Haryana State Cooperative Land Development Bank Ltd. Vs Haryana State Cooperative Land Development Banks Employees Union & Anr.) 2004(2) Apex Court Judgments 106 (S.C.)

Pepsu Tenancy and Agricultural Lands Act, 1955 (As amended by Act No.11 o 1968), Ss.3 & 51-A, Displaced Persons (Compensation & Rehabilitation) Act, 1954, Ss.7, 8 & 14 – Surplus area – Land allotted by way of military grant in Sind (Pakistan) – On migrating to India land given under Displaced Persons (Compensation and Rehabilitation) Act – S.51-A comes into operation only if the specific land which had been granted for gallantry is in possession of the persons concerned and not otherwise – Land in possession in India was altogether different land and not “such land” which may have been given by way of gallantry and consequently S.51-A of Pepsu Tenancy and Agricultural Lands Act has no application at all. (Pohla Singh @ Pohla Ram (d) by Lrs. & Ors. Vs State of Punjab & Ors.) 2004(3) Civil Court Cases 574 (S.C.) : 2004(2) Apex Court Judgments 458 (S.C.)

Petrol dealer – Cancellation of dealership – Failure of sample – Test of sample not carried out at the retail outlet itself and there was time gap of one month between taking of sample and lab test carried out and this time is sufficient of causing marginal variation as detected – Held, failure of sample becomes an irrelevant and non-existent fact for cancellation of dealership. (Harbanslal Sahnia & Anr. Vs Indian Oil Corpn. Ltd. & Ors.) 2003(1) Apex Court Judgments 279 (S.C.)

Photographs – Proof – Photographs are not per se admissible – They are to be proved in accordance with Evidence Act – AIR 1976 Bombay 264 relied wherein held that it is only when the person who takes a photograph and develops it into a negative himself comes into the box and deposes to both these facts that a negative becomes admissible in evidence – As far as the enlarged print is concerned, the position is still worse for no print or enlargement can be admitted in evidence without its negative being produced and proved in the manner indicated above. (Vinit Kumar Behl Vs Ruchi) 2003(3) Civil Court Cases 04 (P&H) 

Possession – Co-owners – One of the co-owners can claim possession for the benefit of all other co-owners as well. (Ilam Chand Vs Ved Parkash) 2003(3) Civil Court Cases 373 (P&H)  

Possession – Delivered in pursuance of an agreement to sell – Rescission of contract – Person who took possession is bound to return the possession to the person from whom he took possession even on the ground that that person lost his title to the property and title to the property now vest in third party. (Mahender Singh Vs Piara Singh) 2004(2) Civil Court Cases 14 (Rajasthan)

Possession – Suit for – Plaintiff has to prove his title and it is not necessary to prove that he was in possession within 12 years preceding the filing of the suit – Defendant if wants to defeat the plaintiff’s claim has to establish his title by adverse possession. (Md.Mohammad Ali (Dead) by Lrs. Vs Sri Jagadish Kalita & Ors.) 2003(2) Apex Court Judgments 473 (S.C.)

Possession – Test for determining whether a person is in possession is whether he is in general control of it. (Sudhir Jaggi & Anr. Vs Sunil Akash Sinha Choudhury & Ors.) 2004(2) Apex Court Judgments 566 (S.C.) : 2004(3) Civil Court Cases 540 (S.C.)

Postmortem report – By itself not a substantive piece of evidence – However, evidence of doctor conducting post-mortem is significant as to injuries appearing on the body of the deceased and likely use of weapons therefor – It is then prosecution’s duty and obligation to have the corroborative evidence available on record from the other prosecution witnesses. (State of Haryana Vs Ram Singh) 2002(1) Criminal Court Cases 571 (S.C.)

Power of attorney holder – Attorney given power to alienate the suit property – Held, power to alienate necessarily and inherently contains the power to take such steps as may be required including the power to enter into an agreement to sell. (Jangir Singh Vs Hari Singh) 2004(3) Civil Court Cases 165 (P&H)

Practice & Procedure – Cryptic order – “Arguments heard on the application and the application is allowed” – Held, order of the judicial Court, may be interlocutory or final, should be supported with reasons and grounds – An order of judicial Court which is not supported by reasons and grounds, is a perverse one. (Anwar Ali Vs State of Rajasthan) 2003(1) Criminal Court Cases 531 (Rajasthan) 

Precedents – Direct conflict of co-equal benches of Supreme Court – High Court to follow judgment which more elaborately and more accurately and in conformity with scheme of statute – Both views of S.C. are not binding. (Kalabai Choubey Vs Rajabahadur) AIR 2002 M.P. 8

Precedents – If a decision is cited and referred to then it is appropriate for a Court either to apply the ratio or to indicate the reason for not following the same. (Braja Mohan Patra Vs Ananta Charan Patra & Ors.) 2004(2) Civil Court Cases 382 (Orissa)

Precedents – It is duty of Court not only to refer to but also to understand and apply a ratio correctly while deciding any issue or considering an application. (State Bank of India  Vs Somnath Sahoo) 2004(2) Civil Court Cases 634 (Orissa)

Presidency Small Cause Courts Act, 1882, S.41 – Suit by licensor for eviction of licencee and khas possession – Can be entertained by Small Cause Court. (Smt.Kalyani Devi Vs Tarapada Das) AIR 2003 Calcutta 249

Presidency Town Insolvency Act, 1909, S.46(3) – Debts – Must be one arising out of obligations incurred before order of adjudication as insolvent is passed – Sales Tax dues and penalty imposed much after order of adjudication made – Liability of penalty cannot be said to be provable u/s 46(3) of the Act – Rejection of claim of Tax Recovery Officer by Official Assignee -Not improper. (Union of India Vs M/s Shantilal Jewellers and others) AIR 2004 Bombay 49

Pronote – Alteration in receipt – Any alteration in the receipt is not an alteration in the negotiable instrument – Receipt regarding payment is neither a promissory note, bill of exchange or a cheque payable either to order or bearer – Payment endorsement on a promissory note, even when it is found on the same paper on which the promissory note is engrossed, does not come within the definition of a negotiable instrument. (Negotiable Instruments Act, 1881, S.87). (Maturi Sandesh Vs Challa Venkateswara Rao) 2003(3) Civil Court Cases 69 (A.P.) 

Pronote – Company – Pronote executed by Chief Executive of Company borrowing the amount to pay electricity bills of the Company – Seal of company affixed – Endorsement of payment also signed by him affixing the stamp of the company – Management of company cannot deny its liability to pay the amount due under the pronote on the ground that the said transaction does not find a place in the accounts of the company – Execution of pronote proved – Findings recorded by trial Court fastening liability against company – Sustainable. (Kirlampudi Sugar Mills Ltd. & Anr. Vs G.Venkata Rao) 2003(2) Civil Court Cases 95 (A.P.) 

Prevention of Corruption Act, 1947, Ss.4, 5(1)(d) and 5(2) – Illegal gratification – Receipt of money admitted – Explanation that it was not bribe money but complainant returned back the loan which he had taken – Explanation not credible – Presumption drawn is that it was illegal gratification – Order of acquittal set aside and accused sentenced to one year R.I. (State of Andhra Pradesh Vs V.Vasudeva Rao) 2004(1) Criminal Court Cases 137 (S.C.)

Prevention of Corruption Act, 1947, Ss.4, 5(1)(d) and 5(2) – Illegal gratification – Receipt of money when admitted it is for accused to explain as to how it came to be received by him – Accused will be presumed guilty of accepting illegal gratification if accused has no creditable and convincing explanation. (State of Andhra Pradesh Vs V.Vasudeva Rao) 2004(1) Criminal Court Cases 137 (S.C.)

Prevention of Corruption Act, 1947, S.5 – Misappropriation of diesel – Accused working as store-keeper of diesel pump – Accused not sole incharge of diesel pump as several persons issuing diesel – Nothing specific that accused has ever indulged in selling or black marketing the diesel at any point of time – Accused, acquitted giving benefit of doubt. (Shankar Mandal Vs State) 2002(1) Criminal Court Cases 525 (Jharkhand)

Prevention of Corruption Act, 1947, S.5A – Bribe – Complaint to SDM as to demand of bribe – SDM laid a trap and recovered bribe money from accused – Accused and money handed over to police for action – Not illegal – Cannot be said that SDM investigated the case which he was not competent to do – SDM had only discharged his duties as law abiding citizen and the allegation that SDM had conducted investigation of the case is incorrect. (State of Rajasthan Vs Shambhoogiri) 2005(1) Criminal Court Cases 139 (S.C.)

Prevention of Corruption Act, 1947, S.5(1)(d), Indian penal Code, 1860, S.161 – Illegal gratification – Explanation for receipt of the alleged amount – Not disclosed to Investigating Officer at the time of seizure – By itself not sufficient to throw away the explanation offered by the accused. (Punjabrao Vs State of Maharashtra) 2002(1) Criminal Court Cases 93 (S.C.)

Prevention of Corruption Act, 1947, S.5(1)(d), Indian Penal Code, 1860, S.161 – Illegal gratification – Explanation for receipt of the alleged amount – Question to be considered is whether explanation can be said to have been established – Accused is not required to establish his defence by proving beyond reasonable doubt as the prosecution, but can establish the same by preponderance of probability. (Punjabrao Vs State of Maharashtra) 2002(1) Criminal Court Cases 93 (S.C.)

Prevention of Corruption Act, 1947, S.5(1)(d), Indian penal Code, 1860, S.161 – Patwari – Receipt of illegal gratification of Rs.100/- – Special Court acquitted but High Court reversed acquittal – Stand of accused that he collected Rs.100/- as loan from complainant – Found reasonable by Special Court but not by High Court – Held, High Court was not justified in reversing the acquittal. (Punjabrao Vs State of Maharashtra) 2002(1) Criminal Court Cases 93 (S.C.)

Prevention of Corruption Act, 1947, S.5(1)(d) and 5(2) – Bribe – Accused was to issue only a formal order – Not believable that he would demand bribe money from brother of teacher with whom accused had quarrelled a few days earlier and against whom accused had  reported to  higher authorities – Conviction set aside. (Ranjit Singh Vs State of Punjab) 2004(3) Criminal Court Cases 742 (P&H)

Prevention of Corruption Act, 1947, S.5(1)(d) and 5(2) – Bribe – Demand and acceptance of bribe money doubtful though not the recovery of bribe money – Conviction set aside. (Ranjit Singh Vs State of Punjab) 2004(3) Criminal Court Cases 742 (P&H)

Prevention of Corruption Act, 1947, S.5(1)(d) and 5(2) – Bribe – Demand of bribe, acceptance thereof and recovery of the tainted money from the possession of accused are some of the important aspects of a successful prosecution. (Ranjit Singh Vs State of Punjab) 2004(3) Criminal Court Cases 742 (P&H)

Prevention of Corruption Act, 1947, S.5(1)(d) r/w S.5(2), Indian Penal Code, 1860, S.161 – Bribe money – Not believable that accused would accept bribe money in presence of PW who had enmity with him – Prosecution version regarding demand and acceptance doubtful – Acquittal upheld. (State of Andhra Pradesh Vs T.Venkateswara Rao) 2004(2) Criminal Court Cases 101 (S.C.)

Prevention of Corruption Act, 1947, S.5(1)(d) & 5(2), Indian Penal Code, 1860, S.161, Criminal Procedure Code, 1973, S.300 – Public servant – Corruption case – Acquittal due to invalid sanction for prosecution – Accused cannot be tried again after obtaining valid sanction – No one can be vexed twice for the same offence as it will be double jeopardy. (Bant Singh Vs The State of Punjab) 2003(1) Criminal Court Cases 348 (P&H)

Prevention of Corruption Act, 1947, S.5(1)(e) – Assets disproportionate to known sources of income – Savings of accused deducted to extent of 1/3rd as per rules – There cannot be any hard and fast rule in this regard – It depends upon constitution of family – In the instant case family consisted of husband and wife – They could save more. (Dalip Singh Vs State of Punjab) 2003(3) Criminal Court Cases 616 (P&H) 

Prevention of Corruption Act, 1947, S.5(2), 4 Indian Penal Code, 1860, S.161 – Tainted money – Recovery – Once recovery is proved then there is a legal presumption that accused had accepted or obtained bribe as motive or reward – This is a rebutable presumption. (Raj Singh Vs State of Haryana) 2002(3) Criminal Court Cases 1 (P&H)

Prevention of Corruption Act, 1947, S.5(2), Indian Penal Code, 1860, S.161 – Corruption – Meaning – In a limited sense it connotes allowing decisions and actions of a person to be influenced not by rights or wrongs of a cause, but by the prospects of monetary gains or other selfish considerations. (State of Andhra Pradesh Vs V.Vasudeva Rao) 2004(1) Criminal Court Cases 137 (S.C.)

Prevention of Corruption Act, 1947, S.5(2) and 5(1)(d) – Illegal gratification – Complainant and shadow witness improved their statements which they had earlier made at the time of investigation – Such witnesses are untrustworthy. (State of Punjab Vs Chhajju Ram) 2004(1) Criminal Court Cases 37 (P&H)

Prevention of Corruption Act, 1947, S.5(2) and 5(1)(d) – Illegal gratification – Independent witnesses – Accused proved enmity with complainant – In such a case independent corroboration is necessary for convicting the accused. (State of Punjab Vs Chhajju Ram) 2004(1) Criminal Court Cases 37 (P&H)

Prevention of Corruption Act, 1947, S.5(2) – Corruption case – Conviction without independent corroboration cannot sustain – Independent witness if won over prosecution should examine that witness and to cross examine and elucidate the true version. (Puran Chand Vs State of Punjab) 2003(3) Criminal Court Cases 563 (P&H) 

Prevention of Corruption Act, 1947, S.5(2) – Corruption case – No evidence as to when the complainant met the accused and fixed date and time for payment of bribe money – Witness before whom money was demanded by accused not examined – Accused acquitted. (Abdul Rahman Sheikh Vs State of M.P.) 2002(3) Criminal Court Cases 46 (M.P.) 

Prevention of Corruption Act, 1947, S.5(2) – Demand – In a hotel, a public place – Unbelievable – Accused will never allow to have talks about taking and giving bribe amount at such a place. (Abdul Rahman Sheikh Vs State of M.P.) 2002(3) Criminal Court Cases 46 (M.P.) 

Prevention of Corruption Act, 1947, S.5(2) – Illegal gratification – Demand – Prosecution failed to produce PW in whose presence bribe was demanded – Failure to prove basic ingredient – Accused acquitted. (State of Punjab Vs Krishan Kumar Bhandari) 2004(1) Criminal Court Cases 70 (P&H)

Prevention of Corruption Act, 1947, S.5(2) – Illegal gratification – Prosecution to prove three basic ingredients viz. (1) demand of bribe money (ii) payment and acceptance; (iii) recovery. (State of Punjab Vs Krishan Kumar Bhandari) 2004(1) Criminal Court Cases 70 (P&H)

Prevention of Corruption Act, 1947, S.5(2) – Illegal gratification – Recovery of tainted money – Eye witnesses stating that they saw the accused accepting the money, but they did not know under what account or for which purpose money was paid – It cannot be said that accused accepted money as bribe – Demand not proved – Conviction cannot be sustained. (Brij Bhushan Prasad Vs State of Bihar) 2004(4) Criminal Court Cases 755 (Jharkhand)

Prevention of Corruption Act, 1947, S.5(2) – Independent Witness – Interested Witness – Panch Witness – Trap – Rs.100 recovered from accused – Plea that panch witnesses were interested witness as they were working under father of complainant – No suggestion to this affect put to witnesses or Investigating Officer – Complainant’s father was working in Health department of Municipal Corporation of Ahmedabad City – Panch witnesses were working in Health Department of State Govt. – No merit in plea of accused – Appeal Dismissed. (G.L.Raval  Vs.  State of Gujarat ) 2004(2) Criminal Court Cases 371 (S.C.)

Prevention of Corruption Act, 1947, S.5(2) – Probation of Offenders Act, 1988 – Probation – Section 18 of Probation Act clearly rules out application of the Probation Act to a case covered under Section 5 (2) of the  1947 Act.  (N.Bhargavan Pillai (dead) by Lrs. & Anr.  Vs  State of Kerala ) 2004(2) Criminal Court Cases 575 (S.C.)

Prevention of Corruption Act, 1947, S.5(2) – Search Officer – Prior to taking of search of accused search officer did not convince the witnesses that he was empty handed – Recovery surrounded by suspicion and factum of recovery shaken. (Abdul Rahman Sheikh Vs State of M.P.) 2002(3) Criminal Court Cases 46 (M.P.)

Prevention of Corruption Act, 1947, S.5(2) – Search – Direct witness silent about washing of his hands in Sodium Carbonate solution before putting his hands in the pocket – Narration of this fact by Investigating Officer is of no significance. (Abdul Rahman Sheikh Vs State of M.P.) 2002(3) Criminal Court Cases 46 (M.P.) 

Prevention of Corruption Act, 1947, S.5(2) – Trap witnesses – Are interested witnesses as they are interested in the success of the trap. (Raj Singh Vs State of Haryana) 2002(3) Criminal Court Cases 1 (P&H) 

Prevention of Corruption Act, 1947, S.5(2) – Trap witnesses – Require corroboration by some independent evidence – Corroboration is required not as a rule of law but as a rule of prudence and caution – Witnesses of trap are interested witnesses as they are interested in the success of the trap. (Raj Singh Vs State of Haryana) 2002(3) Criminal Court Cases 1 (P&H) 

Prevention of Corruption Act, 1947, S.5(2)(1)(d), Prevention of Corruption Act, 1988, S.13(1)(d), Criminal Procedure Code, 1973, S.197 – Illegal gratification – Public servant – Ceased to be a public servant on the day when cognizance is taken  – Immunity cannot be claimed on the ground of want of sanction – Position is different in cases where S.197 Cr.P.C. is applicable. (State of H.P. Vs M.P.Gupta) 2004(1) Criminal Court Cases 575 (S.C.)

Prevention of Corruption Act, 1947, Ss.5(1)(d) and 2, Cr.P.C.: S.313, Prevention of Corruption Act, 1947, Ss.5(1)(d) and 2 – Exact amount of gratification – Not put in examination u/s 313 Cr.P.C. – Held, accused is deprived of an opportunity to explain the precise case against him – This is a serious omission which goes to the root of the matter and cannot be said to be a mere irregularity. (Tirath Prakash (deceased) through his widow Smt.Mithlesh Sharma Vs State) 2002(2) Criminal Court Cases 683 (Delhi) 

Prevention of Corruption Act, 1947, Ss.5(1)(d) and 5(2), Cr.P.C., 1973, Ss.215, 464 and 465 – Amount of illegal gratification Rs.138/- but in charge amounted stated to be Rs.140/- – It is a fundamental infirmity, resulting in serious prejudice to the accused – This infirmity is not saved either by S.315 or 464 Cr.P.C. as it has occasioned a failure of justice – Thus, this serious lacuna in the charge also vitiates the trial. (Tirath Prakash (deceased) through his widow Smt.Mithlesh Sharma Vs State) 2002(2) Criminal Court Cases 683 (Delhi) 

Prevention of Corruption Act, 1947, Ss.5(1)(d) and 5(2) – Patwari – Corruption case – Sanction for prosecution by Deputy Commissioner/Collector – No illegality. (Chander Bhan Vs The State of Punjab) 2003(2) Criminal Court Cases 106 (P&H) 

Prevention of Corruption Act, 1947, Ss.5(1)(d) and RPC, S.161 (IPC, S.161) – Illegal gratification – Mere recovery of money from accused without proof of voluntary acceptance thereof will not attract application of S.4(1) of the Act. (Charan Dass Vs State & Ors.) 2004(3) Criminal Court Cases 640 (J&K)

Prevention of Corruption Act, 1947, Ss.5(2), 5(1)(e) and 6(1)(c) – Acquiring assets disproportionate to known sources of income – Sanction for prosecution – When sanction itself is very expressive then argument that particular material was not properly placed before authority and authority did not apply its mind becomes unsustainable – However, when sanction order does not speak for itself then it should be proved by leading evidence that all the particulars were placed before the sanctioning authority for due application of mind. (C.S.Krishnamurthy Vs State of Karnataka) 2005(1) Apex Court Judgments 697 (S.C.) : 2005(2) Criminal Court Cases 449 (S.C.)

Prevention of Corruption Act, 1988, Ss.5(i)(c) and 5(2) – Conviction in corruption case – Accused face trial for 22 years – Sentence reduced to already undergone – Purpose of criminal law justice is not only to bring discipline, peace and harmony in society but is also to give an opportunity to an erring individual to reform oneself. (Ram Saran Vs State of Punjab) 2005(2) Criminal Court Cases 253 (P&H)

Prevention of Corruption Act, 1947, Ss.6, 5(1)(d) and 5(2), Prevention of Corruption Act, 1988, S.19 – Sanction for prosecution – Illegal gratification Rs.138/- but sanction granted on the basis of Rs.140/- – Sanction granted without application of mind as such sanction is void ab initio. (Tirath Prakash (deceased) through his widow Smt.Mithlesh Sharma Vs State)  2002(2) Criminal Court Cases 683 (Delhi) 

Prevention of Corruption Act, 1947, Ss.6, 5(1)(d) and 5(2), Prevention of Corruption Act, 1988, S.19 – Sanction for prosecution – Valid sanction is a condition precedent – Court is required to see whether or not the sanctioning authority while granting the sanction was aware of the facts constituting the offence and had applied its mind – If sanction granted is based on incorrect facts it would be a case of non application of mind which per se vitiates the sanction. (Tirath Prakash (deceased) through his widow Smt.Mithlesh Sharma Vs State) 2002(2) Criminal Court Cases 683 (Delhi) 

Prevention of Corruption Act, 1947, Ss.13(2) r/w S.7 – Conviction – Appeal against – Sentence suspended during appeal but not the conviction – Conviction cannot be suspended as it will enable the accused to be reinstated – Court should not aid the corrupt public servant. (Hari Krishan Joshi Vs State of Punjab) 2004(1) Criminal Court Cases 784 (P&H)

Prevention of Corruption Act, 1988, Ss.3, 4(3) and 13(2), Criminal Procedure Code, 1973, Ss.220 & 223 – Offence under Corruption Act and also under IPC in course of same transaction – Accused can be tried by Special Judge for offence under IPC or any other law. (Vivek Gupta Vs Central Bureau of Investigation) 2003(3) Criminal Court Cases 606 (S.C.) : 2003(2) Apex Court Judgments 508 (S.C.)

Prevention of Corruption Act, 1988, S.5, Criminal Procedure Code, 1973, Ss.200 to 204, 156(3) – Private complaint that accused amassed wealth disproportionate to his known sources of income – At this stage Court is not expected to see whether allegations are likely to be proved by materials produced before the Court – Preliminary enquiry into the allegations by Vigilance Department ordered. (Sreekumar S.Menon Vs State of Kerala) 2004(3) Criminal Court Cases 682 (Kerala)

Prevention of Corruption Act, 1988, S.5, Criminal Procedure Code, 1973, Ss.200 to 204 – Private complaint that accused amassed wealth disproportionate to his known sources of income – Local standi – Private complaint is maintainable –  Any person can set or put the criminal law into motion except where the statute enacting or creating an offence indicates to the contrary. (Sreekumar S.Menon Vs State of Kerala) 2004(3) Criminal Court Cases 682 (Kerala)

Prevention of Corruption Act, 1988, S.5(1)(d) and (2) – Prior demand – If evidence is trust worthy it makes the trap legitimate otherwise it would be an illegitimate trap. (Tryambak Lilaji Binnar Vs State of Maharashtra) 2002(2) Criminal Court Cases 409 (BOMBAY)

Prevention of Corruption Act, 1988, S.5(1)(d) – Illegal gratification – Complainant himself immediately after handing over money to accused demanded receipt from him – Held, it is indication of fact that money was being paid as legal remuneration and not as bribe – Conviction set aside. (Tryambak Lilaji Binnar Vs State of Maharashtra) 2002(2) Criminal Court Cases 409 (BOMBAY)

Prevention of Corruption Act, 1988, S.5(1)(d) – Once the evidence of earlier demand is not proved then the entire trap becomes illegal. (Tryambak Lilaji Binnar Vs State of Maharashtra) 2002(2) Criminal Court Cases 409 (BOMBAY)

Prevention of Corruption Act, 1988, S.5(2) – Powers of  sanctioning authority – Two accused – Sanction earlier not granted against one accused but the departmental proceedings initiated against him  – Sanction granted against first accused – Supplementary  charge with fresh sanction to prosecute both the accused filed – At the time of fresh sanction against both the accused  material was already in existence – Quashing of charge sheet against both the accused sought on the ground that fresh sanction was granted without application of mind – Held, that sanctioning authority had authority to alter or amend the sanction. (Ashok Kumar Koul Vs State of J&K & Anr.) 2004(4) Criminal Court Cases 413 (J&K)

Prevention of Corruption Act, 1988, S.7, Criminal Procedure Code, 1973, S.389 – Conviction in corruption case – Appeal against – Suspension of conviction – Appellate Court may suspend the conviction only in very exceptional cases. (State of Maharashtra Vs Gajanan & Anr.) 2004(2) Criminal Court Cases 414 (S.C.)

Prevention of Corruption Act, 1988, S.7 – Illegal gratification – Money recovered from brief case in a hotel room – Explanation that money must have been put into briefcase when he had gone to bathroom – Unbelievable – No explanation as to why accused had gone into the hotel room – Even his explanation that he had gone to the hotel to book a table for the night of 31st December is belied by the fact that there is no evidence that any table was booked by accused – Held, it is proved that an offence u/s 7 of the Act is committed. (State of Andhra Pradesh Vs R.Jeevaratnam) 2004(4) Criminal Court Cases 353 (S.C.)

Prevention of Corruption Act, 1988, Ss.7, 13(1) and 13 (2) – Additional Public Prosecutor – Demand of illegal gratification – Trap – Recovery of Rs. 1500/- – Presence of Phenolphthalein powder found on hands and inner lining of shirt of accused – Plea that currency notes were concealed in papers and he accidentally touched them not accepted in view of presence of Phenolphthalein powder in pocket – Conviction upheld. (Varada Rama Mohana Rao  Vs  State of Andhra Pradesh ) 2004(2) Criminal Court Cases 764 (S.C.)

Prevention of Corruption Act, 1988, Ss.7, 13(1) and 13 (2) – Demand of illegal gratification – Plea that Public prosecutor who conducted the case against accused was inimical – No prejudice shown – Manner in which PP presented his  case  is subject to judicial scrutiny – Personal opinion has no place in decision making process of court – At the most he may present his case with vengeance – However appointment of prosecuting counsel who is on bad term with accused unless for good reasons  is  not approved by Hon’ble Court – Conviction upheld. (Varada Rama Mohana Rao  Vs  State of Andhra Pradesh ) 2004(2) Criminal Court Cases 764 (S.C.)

Prevention of Corruption Act, 1988, Ss.7, 13(1)(a) r/w 13(2) – Illegal gratification – Recovery of Rs.150/- from General Manager, District Industrial Centre –  Explanation that it was towards the fee for registration of small scale industry – Explanation is most unconvincing – Fee of Rs.50/- required to be deposited in treasury with a challan will never be paid in cash to General Manager – Recovery Rs.150/- whereas fee Rs.50/- only – Explanation that Rs.100/- was paid in advance towards two applications which were yet to be made – Explanation wholly unconvincing – No reason to set aside conviction and sentence. (V.Radhakrishna Reddy Vs State of A.P.) 2005(2) Criminal Court Cases 190 (S.C.)

Prevention of Corruption Act, 1988, Ss.7, 13(1)(d) and 13(2) – Bribe money – From where money paid as bribe was arranged does not make much difference. (Mangal Lal Vs State of Punjab) 2002(1) Criminal Court Cases 223 (P&H)

Prevention of Corruption Act, 1988, Ss.7, 13(1)(d) and 13(2) – Bribe – Money demanded by accused – However, money paid to ‘B’ on direction of accused – No conspiracy proved between accused and ‘B’ – Conviction of ‘B’ set aside. (Mangal Lal Vs State of Punjab) 2002(1) Criminal Court Cases 223 (P&H)

Prevention of Corruption Act, 1988, Ss.7, 13(1)(d) r/w 13(2) and 20 – Illegal gratification – Demand – Evidence that Rs.10,000/- brought as demanded and that accused assured that his file now will be cleared – This evidence not shaken in cross examination – Held, it clearly establishes that there was a demand. (State of Andhra Pradesh Vs R.Jeevaratnam) 2004(4) Criminal Court Cases 353 (S.C.)

Prevention of Corruption Act, 1988, Ss.7, 13(1)(d) r/w Ss.13(2) and 20 – Sub Registrar – To get exchange deed of property registered gratification of Rs.1,500/- demanded – In a trap amount recovered – Phenolphthalein test conducted on both hands and pant pocket proved positive – PW 2 who paid amount in presence of PW 3 an Agricultural Officer, fully supported prosecution case – No reason to disbelieve those witnesses – Presumption u/s 20 arises and burden shifts on accused to rebut the same – Accused not sticking to one stand during course of trial – Conviction and sentence of one year imprisonment calls for no interference. (Balusamy Vs State by Deputy Superintendent of Police) 2003(2) Criminal Court Cases 200 (Madras) 

Prevention of Corruption Act, 1988, Ss.7, 13(1)(d) r/w S.13(2) – Recovery of Rs.10,000 bribe money from Sales Tax Officer – Contention of accused that he received the amount as advance tax and issued official receipt – This fact not disclosed to I.O. immediately on arrest – Accused produced Receipt Book during investigation – Held, defence is not genuine – Conviction upheld. (A.Abdul Kaffar Vs State of Kerala) 2004(2) Criminal Court Cases 154 (S.C.)

Prevention of Corruption Act, 1988, Ss.7, 19 – Illegal gratification – Member Panchayat, a public servant taking illegal gratification – Previous sanction for prosecution in terms of S.19 of the Act for prosecution of accused u/s 7 of the Act is necessary. (Jivalall Sharma Vs State of Sikkim) 2004(3) Criminal Court Cases 778 (Sikkim)

Prevention of Corruption Act, 1988, Ss.7 and 13 – Plea that accused were not final authority to accept tenders – Rejected – Question whether a person has authority to do the act for which bribe is accepted is of  no consequence – Conviction upheld. (State of Andhra Pradesh  Vs  C.Uma Maheswara Rao & Anr. ) 2004(2) Criminal Court Cases 791 (S.C.)

Prevention of Corruption Act, 1988, Ss.7 and 13 – Receipt and recovery of money proved and accepted – High Court acquitting accused – Question of fact regarding date of document not raised before trial court nor any suggestions made to witnesses in this regard – It being essentially a question of  fact, the  High Court could not have made out a new case regarding correctness of the date – Order of High Court set aside. (State of Andhra Pradesh  Vs  C.Uma Maheswara Rao & Anr. ) 2004(2) Criminal Court Cases 791 (S.C.)

Prevention of Corruption Act, 1988, Ss.7 and 13(1)(d), Criminal Procedure Code, 1973, S.482 – Illegal gratification – Accused exonerated in departmental proceedings – Benefit of enquiry report given to the accused and proceedings in the trial Court quashed and moreso when there is absolutely no prima facie case made out against the accused and even the uncontroverted allegations made in the complaint and evidence collected in support of the complaint do not disclose commission of any offence. (V.B.Raikar Vs State by Karnataka Lokayukta Police, Madikeri, Kodagu District) 2004(1) Criminal Court Cases 708 (Karnataka)

Prevention of Corruption Act, 1988, Ss.7/13(2) r/w S.13(1)(d) – Demand and acceptance of Rs.35,000/- as bribe for registration of documents of property sale – Acquittal of accused – Decoy witness PW 2 resiled and turned hostile – Shadow witness though supported the case but was not corroborated by any other evidence – Money was recovered from beneath pillow from the bed of house of accused – Defence of accused that PW 2 came with money and placed it on teapoy and money was towards deficient stamp on the documents to be registered – Additional stamp duty comes to Rs.35,272/- – No explanation that as against required stamp duty of Rs.35,272/- why PW 2 would pay bribe of Rs.35,000/- – Pillow cover and bed sheets not seized and treated for phenolphthalein test – No interference is called for in appeal against acquittal. (State by Inspector Vigilance & Anti Corruption Vs K.M.Ravi) 2002(3) Criminal Court Cases 528 (Madras) 

Prevention of Corruption Act, 1988, S.8 – Money obtained from 7 persons for getting employment – Failure to get employment – Witnesses failed to pin point date and month in which money was paid – All the witnesses not very literate – Held, such a lapse is possible on their part. (Kartar Singh Vs State of Punjab) 2004(3) Criminal Court Cases 264 (P&H)

Prevention of Corruption Act, 1988, S.8 – Reduction in sentence – Accused faced prosecution for 14 years – Sentence reduced from one year to 7 months.  (Kartar Singh Vs State of Punjab) 2004(3) Criminal Court Cases 264 (P&H)

Prevention of Corruption Act, 1988, Ss.8, 12, Criminal Procedure Code, 1973, S.439 – Bail – Case of prosecution of payment of bribe of Rs.2.80 crores to Chairman, Punjab Public Service Commission seeking job for son and daughter – Challan put up but no charge framed for six months as according to public prosecutor further investigation was being conducted – Not stated as to when further investigation will be complete – Thirty four accused already on bail – Bail allowed. (Gurcharan Singh Pherurai Vs State of Punjab) 2003(3) Criminal Court Cases 450 (P&H) 

Prevention of Corruption Act, 1988, Ss.8, 9 – Speedy trial – Conviction of accused – Accused an old person and facing criminal proceedings for 13 years – Sentence reduced from one year to six months. (Major K.Gurdev Singh Dillon Vs State of Punjab) 2004(1) Criminal Court Cases 413 (P&H)

Prevention of Corruption Act, 1988, S.13, Criminal Procedure Code, 1973, S.437 – Bail – Offence u/s 37 Prevention of Corruption Act – Accused in jail for about more than one year as under-trial prisoner – Bail granted. (Ram Choubey Vs State of Bihar)  AIR 2002 S.C. 2338

Prevention of Corruption Act, 1988, S.13(1) – Acquittal – Appeal against – Story of bribe not supported by any witness – All witnesses hostile – Complainant himself not able to support prosecution story and he has also been declared hostile – No material for conviction – Acquittal upheld. (State of Rajasthan Vs Mohanlal Khurana) 2003(2) Criminal Court Cases 504 (Rajasthan) 

Prevention of Corruption Act, 1988, S.13(1) – Public servant – Private complaint – Petitioner alleged to have committed corrupt practice while issuing order directing compulsory wearing of Head Gear – Order issued in performance of duty in accordance with law in the public interest – Vague allegations in complaint of recovering a commission from helmet manufacturers – Complaint quashed. (Prabhanshu Kamal Vs Awadhesh Singh Bhandoriya) 2003(1) Criminal Court Cases 10 (M.P.)

Prevention of Corruption Act, 1988, S.13(1)(c) and (d) and 13(2), Indian Penal Code, 1860, Ss.420 and 120-B, Criminal Procedure Code, 1973, S.482 – Embezzlement – Personal malice and ill-will alleged by accused against investigating officer – Where no material are placed on record to prove such allegation and where investigation has revealed materials to make out prima facie case, proceedings cannot be quashed. (Dr.N.Nagamabikadevi Vs Central Bureau of Investigation) 2002(2) Criminal Court Cases 255 (Karnataka) 

Prevention of Corruption Act, 1988, S.13(1)(c) and (d) and 13(2), Indian Penal Code, 1860, Ss.420 and 120-B – Embezzlement – Investigation entrusted to CBI – Consent given by State Govt. mentioning name of two suspects – Does not restrict investigation in respect of only persons so mentioned preventing further investigation in respect of others who may eventually be found involved – Consent given is in respect of offence and not in respect of offenders – Investigation carried out in respect of public servant cannot be held void ab initio just because his name is not mentioned in letter of consent given by State Govt. (Dr.N.Nagamabikadevi Vs Central Bureau of Investigation) 2002(2) Criminal Court Cases 255 (Karnataka) 

Prevention of Corruption Act, 1988, S.13(1)(d) – Bribe money – Whether was thrust into the hands of the accused? – Facts established that money passed from the left hand to the right hand of the accused when it was counted and placed by him into his pocket – Held, it is clear that it was not an act of thrusting money but a voluntary act of receiving money. (Ram Lal Dogra Vs State) 2002(1) Criminal Court Cases 28 (Delhi)

Prevention of Corruption Act, 1988, S.13(1)(d) – Demand and acceptance – For conviction u/s 13(1)(d), there must be evidence on record that accused obtained for himself or for any other person any valuable thing or pecuniary advantage by either corrupt or illegal means or by abusing his position as a public servant or he obtained for any person any valuable thing or pecuniary advantage without any public interest. (Subash Parbat Sonvane Vs State of Gujarat) 2003(2) Criminal Court Cases 632 (S.C.) 

Prevention of Corruption Act, 1988, S.13(1)(d) – For conviction under the provision there must be evidence on record that accused ‘obtained’ for himself or for any other person any valuable thing or pecuniary advantage by either corrupt or illegal means or by abusing his position as a public servant or he obtained for any person any valuable thing or pecuniary advantage without any public interest. (Subash Parbat Sonvane Vs State of Gujarat) 2003(1) Apex Court Judgments 255 (S.C.)

Prevention of Corruption Act, 1988, S.13(1)(d) – Mere acceptance of money – Not sufficient for conviction u/s 13(1)(d) in absence of there being any other evidence. (Subash Parbat Sonvane Vs State of Gujarat) 2003(1) Apex Court Judgments 255 (S.C.)

Prevention of Corruption Act, 1988, S.13(1)(d) – Sentence – Reduction – Accused 64 years of age, retired from service, spent 10 days in jail, lost all retiral benefits and is in frail health suffering from heart problem requiring constant medication attention – Sentence reduced to already undergone. (Ram Lal Dogra Vs State) 2002(1) Criminal Court Cases 28 (Delhi)

Prevention of Corruption Act, 1988, S.13(1)(d) and 13(2), Criminal Procedure Code, 1973, S.439 – Corruption case – Bail – Granted on consideration viz (1) Accused in custody for 58 days and not stated that he was required for custodial interrogation to achieve further breakthrough in investigation (2) Not stated by Police that any recovery was to be effected from accused (3) Prosecution made no attempt to make the custodial examination of two other dignatories in the case (4) There was no apprehension of tampering with record as accused was under suspension and files were taken in custody by police. (Baldev Singh Vs State of Punjab) 2002(3) Criminal Court Cases 485 (P&H) 

Prevention of Corruption Act, 1988, S.13(1)(d) r/w 13(2) – Illegal gratification – Trap – Acquittal by High Court – Defence of accused that PW1 visited his house and left money which was found by his servant DW4 and when he went in search of PW1 to return the money he had already left – Phenolphthalein test conducted on the hands, pyjama and bed cover proved to be positive – Explanation of accused that he shook hands with PW-1 and thus his hands got contaminated with chemical substance is highly improbable – Plea of alibi set up not believable – Evidence of DW4 not at all reliable – Recovery of tainted money coupled with evidence of PW-1 clearly establish that accused did receive a bribe and thus committed an offence punishable u/s 13(1)(d) r/w S.13(2) of Prevention of Corruption Act – Order of acquittal of accused by High Court is clearly erroneous and the same reversed – Accused is guilty of offence punishable u/s 13(1)(d) read with S.13(2) of Prevention of Corruption Act and he is sentenced to undergo imprisonment for a period of one year on each count – Sentence on both counts to run concurrently. (State of A.P. Vs K.Punardana Rao) 2004(4) Criminal Court Cases 430 (S.C.)

Prevention of Corruption Act, 1988, S.13(1)(d)(i) – Demand and acceptance – Complainant not supporting on point of demand and acceptance – Evidence  of PW2 that complainant gave something from his pocket and accused took the same and put in his pocket – Held, from this evidence, it cannot be inferred that accused demanded any amount from the complainant or that he had obtained the same – Conviction u/s 13(1)(d)(i) set aside. (Subash Parbat Sonvane Vs State of Gujarat) 2003(2) Criminal Court Cases 632 (S.C.) 

Prevention of Corruption Act, 1988, S.13(1)(e) – “Income” & “known sources of income” – Meaning – “Income” is receipt in the hand of its recipient – Every receipt would not partake into the character of income – Qua the public servant, whatever return he gets of his service, will be the primary item of his income – Other incomes which can conceivably are income qua the public servant, will be in the regular receipt from (a) his property, or (b) his investment – A receipt from windfall, or gains of graft, crime, or immoral secretions by persons prima facie would not be receipt from the “known sources of income” of a public servant. (State of Madhya Pradesh Vs Awadh Kishore Gupta & Ors.) 2004(1) Criminal Court Cases 591 (S.C.)

Prevention of Corruption Act, 1988, S.13(1)(e) – Prosecution – Withdrawal by Public Prosecutor – Court found application moved in good faith and bona fide and allowed the same – I.O. filed revision that there was sufficient evidence against the accused – Role of I.O. ended on completion of investigation – It seems that I.O. had some bias against accused – Revision dismissed. (Ram Chander, DSP (Retd.) Vs The State of Haryana) 2003(2) Criminal Court Cases 194 (P&H) 

Prevention of Corruption Act, 1988, S.13(1)(e) – Public servant – Acquisition of wealth – Burden is cast on the  accused not only to offer a plausible explanation as to how he came by his large wealth, but also to satisfy the Court that his explanation is worthy of acceptance. (State of Madhya Pradesh Vs Awadh Kishore Gupta & Ors.) 2004(1) Criminal Court Cases 591 (S.C.)

Prevention of Corruption Act, 1988, S.13(1)(e) and (2), Criminal Procedure Code, 1973, S.482, Constitution of India, Article 21 – Public servant – Possession of wealth disproportionate to known sources of income – Case registered on 4.2.1994 – Charge sheet filed on 23.3.2001 – Public servant retired on 31.1.2000 on attaining age of superannuation – No explanation given by prosecution for inordinate delay of over seven years – Proceedings quashed. (P.A.Vijayan Vs State of Karnataka) 2002(3) Criminal Court Cases 393 (Karnataka)

Prevention of Corruption Act, 1988, S.13(1)(e) and 13(2) – Abetment – Family members can be prosecuted as abettors for the offence alleged to have been committed by the public servant. (U.Santosh Kumar Vs State of A.P.) 2002(1) Criminal Court Cases 694 (A.P.) 

Prevention of Corruption Act, 1988, S.13(2), 13(1)(d) and 7, Probation of Offenders Act, 1958, S.18 – Conviction u/s 13(2) – Benefit of probation is not available to accused. (State Through S.P., New Delhi Vs Ratan Lal Arora) 2004(4) Criminal Court Cases 797 (S.C.)

Prevention of Corruption Act, 1988, S.13(2), Criminal Procedure Code, 1973, S.439 – Corruption case – Bail – Non presentation of bail application before Sessions Court/competent Court not a bar for presentation of  petition for bail before High Court. (Baldev Singh Vs State of Punjab) 2002(3) Criminal Court Cases 485 (P&H) 

Prevention of Corruption Act, 1988, S.13(2) – Bribe – Accused did not put the bribe money in pocket but threw away – This shows that accused was not prepared to accept the same – Conviction set aside. (Tarlochan Singh Vs State of Punjab) 2004(1) Criminal Court Cases 543 (P&H)

Prevention of Corruption Act, 1988, S.13(2) – Corruption case – Trap witnesses – Not independent witnesses – In a case under the Prevention of Corruption Act witnesses of the trap are required to be corroborated by independent evidence. (Kuldip Rai Vs State of Punjab) 2002(2) Criminal Court Cases 583 (P&H)

Prevention of Corruption Act, 1988, S.13(2) r/w S.13(1)(e) and Prevention of Corruption Act, 1947, S.5(2) r/w S.5(1)(e) – Charge framed u/s 5(2) r/w S.5(1)(e) of 1947 Act – Special Judge tried appellant for offence punishable under section 13(2) r/w S.13(1)(e) of Act of 1988 – Trial is vitiated – Judgment of conviction and sentence against appellant set aside. (Rajendra Jonko Vs Superintendent Of Police, Central Bureau of Investigation, Anti Corruption Bureau & Anr.) 2005(1) Criminal Court Cases 596 (Bombay)

Prevention of Corruption Act, 1988, S.13(2) r/w S.7 – Bribe money – Independent witness given up – Shadow witness related to complainant – Payment of bribe money cannot be believed as not corroborated by any independent witness – Accused acquitted. (Sat Pal (Died) through L.Rs. Vs State of Punjab) 2004(2) Criminal Court Cases 229 (P&H)

Prevention of Corruption Act, 1988, S.13(2) r/w S.7 – Bribe money – Patwari – Copy of jamabandi supplied on 12.7.1989 and bribe money paid on 14.7.1989 – There is no question of accepting bribe money after supply of jamabandi copies – Accused acquitted. (Sat Pal (Died) through L.Rs. Vs State of Punjab) 2004(2) Criminal Court Cases 229 (P&H)

Prevention of Corruption Act, 1988, Ss.13 & 7 – Bribe – Trap – Deal for payment of illegal gratification struck on 20th July and police informed on 27th July on which a trap was laid and tainted money recovered – Accused had already done the work of complainant on 24th July – It appears that the complainant had nursed a sense of grievance against the accused before reporting the matter to the police after a delay of seven days – If background of a successful trap is shaky or stands on a doubtful ground then the trap cannot be said to be a successful one – Accused acquitted of the charge. (Mehar Chand Vs State of Haryana) 2004(4) Criminal Court Cases 739 (P&H)

Prevention of Corruption Act, 1988, Ss.13 & 7 – Bribe – Trap – If the background which led to the execution of a successful trap is shaky or stands on a doubtful ground then the trap cannot be said to be a successful one. (Mehar Chand Vs State of Haryana) 2004(4) Criminal Court Cases 739 (P&H)

Prevention of Corruption Act, 1988, Ss.13(1)(a) and 13(2) – Specific offences envisaged by the Act are (i) Taking illegal gratification, other than legal remuneration as an offence by a public servant; (ii) Taking a valuable thing by a public servant either without any consideration or for inadequate consideration is an offence (iii) Criminal misconduct on the part of public servant is also an offence. (U.Santosh Kumar Vs State of A.P.) 2002(1) Criminal Court Cases 694 (A.P.) 

Prevention of Corruption Act, 1988, Ss.13(1)(d), 13(2), 3 & 4, Criminal Procedure Code, 1973, Ss.223 and 220 – Three accused – Two charged under Prevention of Corruption Act and also under IPC whereas third accused charged under IPC only – Special Court is competent to try all the three accused at same trial. (Vivek Gupta Vs Central Bureau of Investigation) 2003(3) Criminal Court Cases 606 (S.C.) : 2003(2) Apex Court Judgments 508 (S.C.)

Prevention of Corruption Act, 1988, Ss.13(1)(d), 13(2)/7 & 20 – Illegal gratification – Amount received whether illegal gratification/bribe it is necessary to prove that (i) the motive for showing favour by the accused and (ii) recipient of such bribe or gratification has an authority or right to show any favour in course of discharging his official duty. (Khyamasagar Baina Vs State) 2004(1) Criminal Court Cases 166 (Orissa)

Prevention of Corruption Act, 1988, Ss.13(1)(d) and 13(2), Criminal Procedure Code, 1973, S.389 – Corruption case – Sentence – Appeal against – Sentence suspended during pendency of appeal as Court was given impression that accused was still in service, but in fact his services had already been terminated by department – Order of suspension of sentence recalled as the same was based on incorrect impression given to Court by counsel for the accused. (Shri Bhagwan Vs State of Haryana) 2005(2) Criminal Court Cases 567 (P&H)

Prevention of Corruption Act, 1988, Ss.13(1)(d) and 13(2) – Illegal gratification – Recovery of tainted money in a trap – Trap witness not supporting prosecution – According to trap witness currency note was in hand of officer who laid the trap when he reached the place – In view of statement of trap witness the hand wash memo, recovery memo and tainted money and/or pocket wash of accused is absolutely doubtful – CBI justified in submitting cancellation report. (Gian Parkash Sharma Vs Central Bureau of Investigation, Chandigarh) 2004(4) Criminal Court Cases 366 (P&H)

Prevention of Corruption Act, 1988, Ss.13(1)(d)(ii) r/w S.13(2) – Illegal gratification – Failure of prosecution to prove demand and acceptance by accused – Conviction set aside. (G.Vishnuvardhan, Assistant Public Prosecutor Vs State of A.P.) 2003(3) Criminal Court Cases 10 (A.P.) 

Prevention of Corruption Act, 1988, Ss.13(2) & 7 – Bribe – Demand – No evidence as to on which date demand was raised for payment of bribe – By the time trap was laid there was no work pending with the accused – Held, there was no occasion to demand money – Conviction set aside. (Niranjan Bharati Vs State of Orissa) 2004(1) Criminal Court Cases 663 (Orissa)

Prevention of Corruption Act, 1988, Ss.13(2) & 7 – Bribe – Not necessary that bribe must be paid before the work is done and the same could also be paid after the work is done – However when demand of bribe is doubtful, conviction cannot be sustained. (Niranjan Bharati Vs State of Orissa) 2004(1) Criminal Court Cases 663 (Orissa)

Prevention of Corruption Act, 1988, Ss.13(2) & 7 – Bribery – Three ingredients which must necessarily be established are: (1) that the official was in a position to perform certain official acts of which the aggrieved party would have received some benefit; (2) the official had agreed to perform those acts and had also agreed to accept money as reward and (3) the money had been paid to the official as bribe and recovered from his possession. (Mehar Chand Vs State of Haryana) 2004(4) Criminal Court Cases 739 (P&H)

Prevention of Corruption Act, 1988, S.19(1)(c), Criminal Procedure Code, 1973, S.482 – Sanction for prosecution – Group ‘C’ employee of Central Government Health Scheme – Deputy Director C.G.H.S. who is competent authority to remove such employee from service is competent to give sanction for prosecution of such employee – Merely because employee, prior to his absorption in this service was working in Postal Department, it cannot be held that sanction of Postmaster General is required for his prosecution – Prosecution of such an employee with previous sanction of Deputy Director is competent. (T.Srinivasan Vs State by CBI/SPE, Bangalore) 2004(4) Criminal Court Cases 672 (Karnataka)

Prevention of Corruption Act, 1988, S.19(3) and (4), Criminal Procedure Code, 1973, Ss.462 & 465 – Public servant – Sanction to prosecute – Error – Merely because there is any omission, error or irregularity in the matter of according sanction that does not affect the validity of the proceedings unless the Court records the satisfaction that such error, omission or irregularity has resulted in failure of justice. (State by Police Inspector Vs T.Venkatesh Murthy) 2005(1) Criminal Court Cases 107 (S.C.)

Prevention of Corruption Act, 1988, Section 19 (1) (c) – Criminal Procedure Code, 1973 – Section 197 – Sanction – Non consideration of tape conversation – Would not vitiate sanction – Sanctioning authority has only to see whether the facts disclosed in the complaint prima facie disclose commission of offence or not – Actual production of tapes etc. are matter of proof to be seen at the time of trial. (State (Anti Corruption Branch) Delhi & Anr.  Vs  Dr.R.C.Anand & Anr.) 2004(2) Criminal Court Cases 772 (S.C.)

Prevention of Corruption Act, 1988, Section 19 (1) (c) – Criminal Procedure Code, 1973 – Section 197 –  Sanction – Duty of sanctioning Authority – Order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. (State (Anti Corruption Branch) Delhi & Anr.  Vs  Dr.R.C.Anand & Anr.) 2004(2) Criminal Court Cases 772 (S.C.)

Prevention of Corruption Act, 1988, Section 19 (1) (c) – Sanction – All India Institute of Medical Sciences Regulations 1999 – Criminal Procedure Code, 1973 – Section 197 – As per regulation Governing body was competent to consider question of sanction – President of Governing body refusing sanction and sought ratification by Governing body – Whether governing body should have given reasons for not agreeing with opinion of president – Held,  No – Sanctioning authority was governing body – President cannot impede or foreclose the liberty of Governing Body – Decision of Governing body granting sanction upheld. (State (Anti Corruption Branch) Delhi & Anr.  Vs  Dr.R.C.Anand & Anr.) 2004(2) Criminal Court Cases 772 (S.C.)

Prevention of Corruption Act, 1988, S.20 – Presumption – Mere recovery of tainted money and positive result of test are not enough to establish guilt of accused when substantive evidence is not reliable – Initial burden is on prosecution to prove that money was paid as gratification – Presumption has to be rebutted by proof and not by bare explanation though proof required need not be such as expected from prosecution. (Balusamy Vs State by Deputy Superintendent of Police) 2003(2) Criminal Court Cases 200 (Madras) 

Prevention of Corruption Act, 1988, S.20(1), Evidence Act, 1873, S.4 – Words and phrases  – May Presume – Shall Presume – Presumption falling under “May Presume “ are compendiously known as factual presumption or discretionary Presumption – Presumption falling under “Shall Presume “ are legal presumption or compulsory presumption – In section 20 (1) words “shall be presumed “ employed – Must have the same import of compulsion. (State of Andhra Pradesh  Vs  C.Uma Maheswara Rao & Anr. ) 2004(2) Criminal Court Cases 791 (S.C.)

Prevention of Corruption Act, 1988, S.20(1) – Presumption – Conditions to draw presumption – It should be proved that accused has accepted or agreed to accept gratification – It can be proved through direct evidence or by other mode. (State of Andhra Pradesh  Vs  C.Uma Maheswara Rao & Anr ) 2004(2) Criminal Court Cases 791 (S.C.)

Prevention of Corruption Act, 1988, S.20(1) – Prevention of corruption Act, 1947 – Section 4 (1) – Gratification – Gratification denote acceptance of something to the pleasure or satisfaction of the recipient. (State of Andhra Pradesh  Vs  C.Uma Maheswara Rao & Anr. ) 2004(2) Criminal Court Cases 791 (S.C.)

Prevention of Corruption Act, 1988, S.20(1) – “Shall be presumed” – To draw presumption it should be proved that accused accepted or agreed to accept any gratification – Condition need not be satisfied through direct evidence – Proof does not mean direct proof but proof must be one which induce a reasonable man to come to a particular conclusion – Once it is proved that gratification has been accepted presumption automatically arise. (State of Andhra Pradesh Vs R.Jeevaratnam) 2004(4) Criminal Court Cases 353 (S.C.)

Prevention of Corruption Act, 1988, S.22, Criminal Procedure Code, 1973, Ss.223 & 220 – Offence under Prevention of Corruption Act – Provisions of Criminal Procedure Code apply to trials for offence under Prevention of Corruption Act subject to certain modifications as provided in S.22 of the Act unless the application of any provision of the Code is excluded either expressly or by necessary implication – Provision of S.223 Cr.P.C. is application to trial of offence punishable under Prevention of Corruption Act. (Vivek Gupta Vs Central Bureau of Investigation) 2003(3) Criminal Court Cases 606 (S.C.) : 2003(2) Apex Court Judgments 508 (S.C.)

Prevention of Food Adulteration Rules, 1955, Item A.20.01 Appendix B – Synthetic vinegar – Word ‘Non-fruit’ used in label and not “synthetic” as per provisions of Food Products Order – Cannot be said to have committed any offence under the Act because provisions of Food Products Order overrides the provisions of the Act. (Achamma Vs Union of India) 2004(4) Criminal Court Cases 175 (Kerala)

Prevention of Food Adulteration Rules, 1955, R.9(f) – It is obligatory for the Food Inspector to make enquiries and only in case vendor refuses to make necessary disclosures, presumption under the Note can be raised – When the vendor was not asked regarding the source of milk, it is wrong to apply the standard prescribed for buffalo milk to the sample. (Anas Abdul Khader Vs Food Inspector) 2004(1) Criminal Court Cases 222 (Kerala)

Prevention of Food Adulteration Rules, 1955, R.14 – Milk – Sample – Prosecution failing to prove that sample was taken in dry bottle or milk was stirred by a clean stick or milk measurement – Violation of Rule 14 – Accused acquitted. (State of Rajasthan Vs Fakir Mohammad) 2004(1) Criminal Court Cases 667 (Rajasthan)

Prevention of Food Adulteration Rules, 1955, R.18 (as amended in 1985) – Memorandum and specimen impression of seal to be sent separately to public analyst – Word ‘separately’ means that copy of memorandum and specimen impression of the seal has to be sent independently of the articles that are required to sent under rule 17. (State of H.P. Vs Narendra Kumar & Anr.) 2004(4) Criminal Court Cases 104 (S.C.)

Prevention of Food Adulteration Rules, 1955, R.18 (as amended in 1985) – Memorandum and specimen impression of seal – Food Inspector to send (a) copy of the memorandum;  and (b) specimen impression of the seal used to seal in a sealed packet to the Public Analyst; (ii) to send this sealed packet separately by any suitable means (iii) to send the same immediately but not later than the succeeding working day – Expression ‘separately’ has to be understood on a conjoint reading of Rules 7, 17 and 18. (State of H.P. Vs Narendra Kumar & Anr.) 2004(4) Criminal Court Cases 104 (S.C.)

Prevention of Terrorism Act, S.34 – Bail granted by High Court in a case under POTA – Held, unless there is an order of Special Court refusing bail, accused had no right to approach High Court for grant of bail – Order of High Court being without jurisdiction set aside. (State of Gujarat Vs Salimbhai Abdulgaffar Shaikh & Ors.) 2004(3) Criminal Court Cases 621 (S.C.)

Prevention of Terrorism Act, 2002, S.49(2)(b) Proviso, Criminal Procedure Code, 1973, S.167(2)(b) – Offence under IPC – Accused remanded to police custody for 7 days – Remand not extended and accused sent to judicial custody – Offence under POTA added subsequently – Court is competent to remand accused to police custody from judicial custody. (Maulavi Hussein Haji Abraham Umarji Vs State of Gujarat & Anr.) 2004(4) Criminal Court Cases 289 (S.C.)

Prevention of Terrorism Act, 2002, S.50, Criminal Procedure Code, 1973, S.439 – Bail – Accused prosecuted under POTA – Cognizance of offence taken on the date on which there was no sanction u/s 50 of POTA – Accused is entitled to bail. (Khaja Mohinuddin & Ors. Vs State of Maharashtra) 2005(2) Criminal Court Cases 723 (Bombay)

Probation of Offenders Act, 1958, S.4, Essential Commodities Act, 1955, S.7, Haryana Prevention of Hoarding and Maintenance of Quality Order, 1977, Cl.9(1), Haryana Commodities Price Marketing and Display Order, 1975, Cls.3 & 4 – 760 litres of kerosene found in excess in possession of accused – Accused convicted and sentenced to 2 years R.I and fine of Rs.5,000/- – Accused faced protracted trial for 9 years – Accused released on probation. (Dharam Pal Vs State of Haryana) 2004(1) Criminal Court Cases 465 (P&H)

Probation of Offenders Act, 1958, S.4, Essential Commodities Act, 1955: S.7 – Conviction u/s 7 of Essential Commodities Act – Accused not previous convict – Accused faced trial for 14 years – Accused released on probation. (M/s.Maya Ram & Sons Vs State of Haryana) 2003(3) Criminal Court Cases 544 (P&H) 

Probation of Offenders Act, 1958, S.4, Essential Commodities Act, 1975, S.7, Haryana Food Articles (Licensing and Price Control) Order, 1985, S.7 read with Section 3 – Wheat stock – Keeping in excess than permitted – Accused facing trial for 12 years – Accused not a previous convict – Accused released on probation.  (Rajender Vs State of Haryana) 2005(1) Criminal Court Cases 568 (P&H)

Probation of Offenders Act, 1958, S.4, Indian Penal Code, 1860, Ss.325, 323 – Conviction of accused u/ss 325, 323 – Incident 10 years – Accused first offender and of young age – Accused released on probation. (Ram Lal alias Ramiu Vs State of Punjab) 2003(1) Criminal Court Cases 237 (P&H) 

Probation of Offenders Act, 1958, S.4, Indian Penal Code, 1860, Ss.326, 324 – Conviction u/s 326, 324 IPC – Occurrence 16 years old – Accused on bail for 12 years and he did not misuse concession of bail – Accused released on probation. (Gurmail Singh Vs State of Punjab) 2003(2) Criminal Court Cases 695 (P&H) 

Probation of Offenders Act, 1958, S.4, Indian Penal Code, 1860, S.325 – Conviction u/s 325 – Accused less than 21 years old at the date of commission of the offence – Incident 11 yeas old – Accused released on probation. (Rajesh Kumar Vs State of Haryana) 2002(1) Criminal Court Cases 303 (P&H)

Probation of Offenders Act, 1958, S.4, Indian Penal Code, 1860, S.354 – Outraging the modesty of woman – Release on probation – Accused about 20 years old – Court below concluded that accused cannot be at any rate more than 21 years old – No adverse antecedent found against accused – He had already suffered 12 days imprisonment – Court maintained conviction under S.354 IPC – Accused released on probation. (Roshan alias Ram Gopal Vs State of Rajasthan) 2005(2) Criminal Court Cases 420 (Rajasthan)

Probation of Offenders Act, 1958, S.4, Indian Penal Code, 1860, S.411 – Conviction u/s 411 IPC for recovery of stolen property – Incident 15 years old – Accused on bail for 10 years – Accused did not misuse concession of bail and committed no offence – Accused released on bail. (Parmjit Singh Vs State of Punjab) 2003(2) Criminal Court Cases 598 (P&H) 

Probation of Offenders Act, 1958, S.4, Indian Penal Code, 1860, S.420 – Conviction u/s 420 IPC – Case 21 years old – Accused released on probation. (Ashwani Kumar Vs State of Haryana) 2003(2) Criminal Court Cases 586 (P&H)

Probation of Offenders Act, 1958, S.4, Indian Penal Code, 1860, S.500 – Conviction u/s 500 IPC – Accused 70 years old and faced trial for 14 years – Accused released on bail – Fine imposed converted into costs which shall be payable to the complainant. (Randhir Singh Vs Krishan Kumar Goswami & Anr.) 2005(2) Criminal Court Cases 325 (P&H)

Probation of Offenders Act, 1958, S.4, Prevention of Food Adulteration Act, 1954, S.16(1)(a)(i) – Conviction under Food Adulteration Act – Accused faced trial for 19 years – Accused released on Probation though minimum sentence is provided under the Act. (Krishan Kumar Vs State (U.T. Chandigarh)) 2005(2) Criminal Court Cases 49 (P&H)

Probation of Offenders Act, 1958, S.4, Punjab Excise Act, 1914, S.61(1)(a) – Conviction of accused under Excise Act – Recovery 14 years old – Accused on bail for 12 years and he did not misuse concession of bail – Accused released on probation. (Chiranji Lal Vs The State of Haryana) 2003(3) Criminal Court Cases 289 (P&H) 

Probation of Offenders Act, 1958, S.4 – Accused convicted u/s 366 IPC and sentenced to two years RI – Accused released on probation being first offender. (Hari Chand Vs State of Haryana) 2004(4) Criminal Court Cases 99 (P&H)

Probation of Offenders Act, 1958, S.4 – Benefit cannot be given to person guilty of offence punishable with death or imprisonment for life. (State of Maharashtra Vs Abdul Majid Abdul Raheman Sayyed) 2002(1) Criminal Court Cases 350 (Bom.)

Probation of Offenders Act, 1958, S.4 – Conviction u/s 324 and 452/34 IPC – Incident 10 years old – Dispute between neighbours over a trivial issue of cleaning of drainage – Parties educated and distantly related – Fit case to allow benefit of probation. (State of Maharashtra etc. Vs Jagmohan Singh Kuldip Singh Anand & Ors.) 2004(4) Criminal Court Cases 399 (S.C.)

Probation of Offenders Act, 1958, S.4 – Minimum sentence provided – Even then a person can be granted the benefit of probation. (Balwinder Singh Vs State of U.T. Administration) 2003(2) Criminal Court Cases 252 (P&H) 

Probation of Offenders Act, 1958, S.4(1), Indian Penal Code, 1860, Ss.304-A, 279 and 337 – Rash and negligent driving – Death – Conviction – Accused faced trial for 16 years and he was then 26 years of age – Accused released on probation – Accused to pay compensation of Rs.20,000/- to legal heirs of deceased. (Balbir Singh Vs State of Haryana) 2004(3) Criminal Court Cases 626 (P&H)

Probation of Offenders Act, 1958, S.4(1), Indian Penal Code, 1860, S.325 – Conviction u/s 325 IPC – Injury was not on vital part – Incident 8 years old – Accused released on probation. (Mohan Singh Vs State of Haryana) 2003(2) Criminal Court Cases 502 (P&H) 

Probation of Offenders Act, 1958, S.4(3), Indian Penal Code, 1860, Ss.363 and 366 – Conviction under sections 363 and 366 IPC – Accused released on probation in view of adolescent age. (Davinder Singh Vs State of Punjab) 2005(2) Criminal Court Cases 83 (P&H)

Probation of Offenders Act, 1958, Ss.4, 12 – Release on probation – All the consequences attached to conviction also come to an end – Accused cannot be directed to pay fine when he is released on probation. (Balbir Singh Vs State of Punjab) 2004(1) Criminal Court Cases 480 (P&H)

Probation of Offenders Act, 1958, Ss.4, 5 & 9 – Release on probation – Court can impose any condition while releasing the offender on probation – Imposing a condition that accused to pay compensation of Rs.5000/- to victim within a period of two months failing which offender should undergo sentence – No illegality. (Darshan Singh Vs State of Punjab) 2004(2) Criminal Court Cases 480 (P&H)

Probation of Offenders Act, 1958, Ss.4(1) and 5(1)(d), Indian Penal Code, 1860, S.308, Criminal Procedure Code, 1973, S.357 – Conviction u/s 358 IPC – Occurrence 12 years old – Accused having six children including 4 marriageable daughters – Accused released on probation – Sentence of fine enhanced from Rs.2000/- to  Rs.20,000/- and the same shall be converted into compensation and given to injured. (Prem Dass Vs State of Punjab) 2005(1) Criminal Court Cases 406 (P&H)

Probation of Offenders Act, 1958, Ss.4, 3, Criminal Procedure Code, 1973, S.360 – Probation – Restricted only to cases where offence committed is punishable with imprisonment of not more than 10 years and the convict is not a previous convict. (Kailash alias Kala Vs State of Haryana) 2003(3) Criminal Court Cases 330 (P&H) 

Probation of Offenders Act, 1958, S.11(2) – Complainant can prefer an appeal questioning propriety of order passed under Ss.3 or 4 of the Act. (Prithvi Raj & Ors. Vs Kamlesh Kumar & Anr.) 2005(1) Criminal Court Cases 21 (S.C.)

Probation of Offenders Act, 1958, S.11(4) – Appeal – Scope of interference in appeal – Only propriety of order passed u/s 3 or 4 of the Act in respect of offender can be dealt with by appellate Court – In the instant case in a trial of offence u/s 307, 323, 324 and 326/149 IPC, accused convicted u/s 324 IPC and benefit of probation given – Defacto complainant filed appeal u/s 11(2) of the Act and High Court took view that trial Court was not justified in holding that no offence u/s 307 or 326 IPC was made out and matter was remanded – Held, there was no scope for High Court to alter nature of offence and direct that accused shall be convicted for another offence – Impugned order set aside. (Prithvi Raj & Ors. Vs Kamlesh Kumar & Anr.) 2005(1) Criminal Court Cases 21 (S.C.)

Probation of Offenders Act, 1958, S.18, Prevention of Corruption Act, 1988, Ss.13 & 7 – Minimum sentence u/s 7 and 13 of Prevention of Corruption Act provided as six months and one year respectively – Court not given any power to award sentence lesser than the minimum prescribed – Accused not entitled to benefit of probation. (State Through S.P., New Delhi Vs Ratan Lal Arora) 2004(4) Criminal Court Cases 797 (S.C.)

Pronote – Executed by guardian of minor – Guardian not mentioning that she is signing on behalf of minor – She signed it as she is executing it for herself – She is bound by such pronote – Order granting decree against guardian – Not erroneous. (Negotiable Instruments Act, 1881, S.28). (Tirumalareddi Ramagopala Reddy & Ors. Vs Bhimavarapu Paravathi) 2004(2) Civil Court Cases 29 (A.P.)

Pronote – Insufficiently stamped – Inadmissible in evidence – Endorsement on back of such promissory note is to be treated as acknowledgment of liability. (Janardhanan Vs Aneefa Rawther) 2004(3) Civil Court Cases 313 (Kerala)

Pronote – Interest – Decree for payment of money based on promissory note – Grant of interest at rate of 12% p.a. – Proper. (Dr.Jose Paul Vs Jose) AIR 2002 Kerala 397

Pronote – Recovery against L.R’s – Though L.R’s related to maker but nothing to show that they have inherited his estate – Not liable to repay his debts – Suit not maintainable. (Govindammal Vs Bhuvaneshwari Financing Corporation) AIR 2002 Madras 296

Protection of Civil Rights Act, 1955, Section 7 (1) (d) – To attract section 7 (1) (d) it had to be shown that words uttered had the effect of insulting person on ground of untouchability – Accused stating – “There is an MLA Kuttappan, that Harijan MLA, he climbed over the table and was dancing. Is this democratic manners of Antony” – No insult on ground of untouchability – No case made out u/s 7 (1) (d). (M.A.Kuttappan  Vs.  E.Krishnan Nayanar & Anr. ) 2004(2) Criminal Court Cases 541 (S.C.)

Protection of Human Rights Act, 1994, Ss.16,17 – Sexual harassment – Complaint against Head of Department and others – Inquiry – Adequate opportunity for defence not afforded – Inquiry set aside – Matter remanded with direction to conduct inquiry by certain responsible officer of Commission or by itself at place of its sitting. (M.P.Human Rights Commission Vs State of M.P. & ors.) AIR 2002 M.P. 239

Public Interest Litigation – There must be real and genuine public interest involved in the litigation and not merely an adventure of knight errant or poke ones into for a probe – It cannot be invoked by a person or a body of persons to further his or their personal causes or satisfy his or their personal grudge and enmity – A person acting bona fide and having sufficient interest in the proceeding of public interest litigation will alone have a locus standi and can approach the Court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any oblique consideration. (Ashok Kumar Pandey Vs State of West Bengal & Ors.) 2004(1) Criminal Court Cases 246 (S.C.)

Public Interest Litigation – Seeking direction to Govt. to enact legislation to ban manufacture of Gutkha or tobacco or allied products – Not maintainable. (Society for Cancer in Oral-Cavity Vs Union of India) AIR 2003 A.P. 158

Public Interest Litigation – Whenever frivolous pleas are taken,  Court not only to dismiss the petitions but also to impose exemplary costs. (Ashok Kumar Pandey Vs State of West Bengal & Ors.) 2004(1) Criminal Court Cases 246 (S.C.)

Public or private trust – Guidelines to determine – (1) Where the origin of the endowment cannot be ascertained, the question whether the user of the temple by members of the public is as of right; (2) The fact that the control and management vests either in a large body of persons or in the members of the public and the founder does not retain any control over the management –  Allied to this may be a circumstance where the evidence shows that there is provision for a scheme to be framed by associating the members of the public at large; (3) Where, however, a document is available to prove the nature and origin of the endowment and the recitals of the document show that the control and management of the temple is retained with the founder or his descendants, and that extensive properties are dedicated for the purpose of the maintenance of the temple belonging to the founder himself, this will be a conclusive proof to show that the endowment was of a private nature; (4) Where the evidence shows that the founder of the endowment did not make any stipulation for offerings or contributions to be made by members of the public to the temple, this would be an important intrinsic circumstance to indicate the private nature of the endowment. (Kuldip Chand & Anr. Vs Advocate General to Government of Himachal Pradesh & Ors.) 2003(1) Apex Court Judgments 478 (S.C.)

Public Premises (Eviction of Unauthorised Occupant) Act, 1971, S.3 – Unauthorised occupancy of quarter by L.R’s of deceased employee – Non payment of legal dues and benefits accrued on account of death of employee – Not a ground to retain quarter forcibly – L.R’s liable to be evicted in accordance with law. (Sudarshan Anand Vs Bokaro Steel Plant) AIR 2004 Jharkhand 84

Public Premises (Eviction of Unauthorised Occupant) Act, 1971, S.9 – Appeal – Delay – Condonation – Getting back possession of property from unauthorised occupants – Damages also claimed – Order by Estate Officer to renew licenses – Delay in filing appeal – Order of Estate Officer without jurisdiction – Delay deserves to be condoned as matter required decision on merits. (Union of India Vs Lachhamn Dass Sain Ditta Mall) AIR 2002 H.P. 50

Public Provident Fund Act, 1968, S.4 – PPF account – Joint account in name of two individuals – Not prohibited. (Patel Harishbhai Bhanubhai Vs Chief Post Master, Ahmedabad) AIR 2002 Gujarat 21

Punjab Co-operative Societies Act, 1961, S.27 – Co-operative society – Managing Committee – Suspension – First line of show cause referring to office letter pertaining to show cause notice and same given to President only – Show cause notice given on report of Inspector without going through relevant record – Inference can be drawn that suspension was due to political pressure – Members put to unnecessary harassment and expenditure – For inconvenience and harassment compensation of Rs.2000/- awarded to each – Same required to be paid personally by Asstt. Registrar. (Lakhwinder Singh Vs State of Punjab) AIR 2002 P&H 2

Punjab Customary Law – Adoption – It is a secular act – It is a personal relationship between the adoptive father and adopted son – It is merely appointment of an heir. (Mohinder Singh Vs Gurbax Singh) 2005(2) Civil Court Cases 07 (P&H)

Punjab Customary Law – Adoption – Right of adopted son – No tie of kinship with collaterals of adoptive father – No right to succeed collaterally in adoptive father’s family – No right to challenge any alienation of adoptive father – Adopted son only succeeds to property left by adoptive father at his death. (Mohinder Singh Vs Gurbax Singh) 2005(2) Civil Court Cases 07 (P&H)

Punjab Customary Law – Customary formal adoption – Adopted son ceases to be member of natural family and he looses right of collateral succession in natural family. AIR 1966 S.C. 1555 followed. (Mohinder Singh Vs Gurbax Singh) 2005(2) Civil Court Cases 07 (P&H)

Punjab Customary Law – Customary formal adoption is different from secular adoption – It confers status of son and right to succeed to collaterals of adoptive father on the adopted son – It can be made as per customary form – No Hindu Law ritual is necessary. (Mohinder Singh Vs Gurbax Singh) 2005(2) Civil Court Cases 07 (P&H)

Punjab Excise Act, 1914, S.3(13), NDPS Act, Ss.20, 37 – ‘Bhang’ – Recovery of – Bhang is not narcotic or even psychotropic drug – The same is however violative of S.3(13) punishable u/s 61 of Punjab Excise Act – Bail allowed. (Gurdial Singh  Vs State of Punjab) 2002(3) Criminal Court Cases 296 (P&H) 

Punjab Excise Act, 1914, S.61(1)(a), Indian Penal Code, 1860, S.324 – Illicit liquor – Recovery of – Accused inflicted knife injuries to constable who attempted to apprehend him – Accused can be tried simultaneously in both the offences though committed under different Acts. (Baldev Singh Vs State of Punjab) 2003(3) Criminal Court Cases 671 (P&H)

Punjab Excise Act, 1914, S.61(1)(a), Probation of Offenders Act, 1958, S.4 – Conviction of accused under Excise Act – Recovery 14 years old – Accused on bail for 12 years and he did not misuse concession of bail – Accused released on probation. (Chiranji Lal Vs The State of Haryana) 2003(3) Criminal Court Cases 289 (P&H) 

Punjab Excise Act, 1914, S.61(1)(a), Probation of Offenders Act, 1958, S.4 – Illicit liquor – Recovery of 70 bottles – Accused convicted – Incident 18 years old – Accused on bail for 12 years – Accused released on probation. (Bachittar Singh Vs State of Punjab) 2004(2) Criminal Court Cases 611 (P&H)

Punjab Excise Act, 1914, S.61(1)(a), Probation of Offenders Act, 1958, S.4 – Lahan – Recovery of 100 kg. – Accused convicted and sentenced to 6 months RI – Incident 10 years old – Accused released on probation. (Buta Singh Vs State of Punjab) 2004(4) Criminal Court Cases 577 (P&H)

Punjab Excise Act, 1914, S.61(1)(a), S.61(iii) Proviso,  Probation of Offenders Act, 1958, S.12 – Recovery of 48 bottles of illicit liquor – Conviction – Minimum sentence as provided by proviso imposed as such accused is not entitled to probation. (Mangat Ram Vs State of Punjab)  2003(3) Criminal Court Cases 318 (P&H) 

Punjab Excise Act, 1914, S.61(1)(a) – Conviction under Excise Act – Incident 18 years old – Revision pending in High Court for 13 years – Accused not traceable – Sentence reduced to already undergone. (Gopal Singh Vs State of Haryana) 2003(3) Criminal Court Cases 100 (P&H) 

Punjab Excise Act, 1914, S.61(1)(a) – Illicit liquor – Recovery of – Link evidence missing – Affidavit not bearing seal of Court which had attested it – Affidavit is inadmissible in evidence and cannot be read into evidence – Accused acquitted. (Gurmail Singh Vs State of Punjab) 2003(3) Criminal Court Cases 43 (P&H)  

Punjab Excise Act, 1914, S.61(1)(a) – Liquor – Recovery of eight bottles – Sample of three sent for analysis – Sample found to be of IMFS – No proof that remaining 5 bottles also contained IMFS – Hence possession of accused qua three bottles only proved which is below the prescribed limit of six mottles – Conviction set aside. (Mahajan Vs State of H.P.)   2003(2) Criminal Court Cases 396 (H.P.) 

Punjab Excise Act, 1914, S.61(a)(a) – Offence under Punjab Excise Act – FIR lodged at the instance of Police Officer who himself investigated the case – Charge against accused quashed. (Shish Pal Vs State of Haryana) 2003(1) Criminal Court Cases 661 (P&H) 

Punjab Excise Act, 1914, S.61(1)(a) – Raid on receipt of secret information – No independent witness joined – Chowkidar of village joined but given up by prosecution and produced as defence witness – Conviction set aside. (Gurdip Singh Vs The State of Punjab) 2003(2) Criminal Court Cases 286 (P&H) 

Punjab Excise Act, 1914, S.61(1)(c), Probation of Offenders Act, 1958, S.4 – Minimum sentence as prescribed awarded – Not a bar for release of accused on probation. (Buta Singh Vs State of Punjab) 2004(4) Criminal Court Cases 58 (P&H)

Punjab Excise Act, 1914, S.61(1)(c) – Lahan – Recovery of 180 Kgs. – Accused convicted and sentenced to 6 months R.I. and fine of Rs.1,000/- – Incident 4 years old – Sentence reduced to already undergone. (Karnail Singh Vs State of Punjab) 2005(2) Criminal Court Cases 787 (P&H)

Punjab Excise Act, 1914, S.61(1)(c) – Working still and illicit liquor – Recovery of – Conviction – Revision against – Contention that there are no independent witnesses – Not a ground to reject the prosecution case when there is no motive attributed against the police officials – Statements of police officials found reliable by both the Courts below – Conviction upheld. (Phuman Singh Vs State of Punjab) 2003(2) Criminal Court Cases 616 (P&H) 

Punjab Excise Act, 1914, Ss.78 and 61, Criminal Procedure Code, 1973, S.451 – Illicit liquor – Transportation in a vehicle belonging to wife of accused – Three other cases under Excise Act also pending against accused – Said vehicle not involved in those cases – Vehicle released to wife on superdari – If vehicle remains in police custody during trial it is likely to get damaged without any useful purpose being served. (Sabnam  Vs NCT of Delhi) 2003(3) Criminal Court Cases 282 (Delhi) 

Punjab Good Conduct Prisoners (Temporary Release) Act, 1962, S.3(1)(d) – Second parole – Within six months of earlier parole – Granted as a special case to allow prisoner to do his Ph.D. – Case not to be a precedent for other cases in future. (Mandeep Gaur Vs State of Punjab) 2003(3) Criminal Court Cases 304 (P&H) 

Punjab Good Conduct Prisoners (Temporary Release) Act, 1962, Ss.3, 4 and 6 – Parole – Life convict – Parole cannot be refused on the ground that it was likely to result into breach of peace and law and order. (Kulwant Singh Vs State of Punjab & Ors.) 2004(2) Criminal Court Cases 395 (P&H)

Punjab Good Conduct Prisoners (Temporary Release) Act, 1962, S.4 – Parole – Life convict – Serving two years sentence – Cannot be released on parole before accused completes a period of three years sentence. (Kulwant Singh Vs State of Punjab & Ors.) 2004(2) Criminal Court Cases 395 (P&H)

Punjab Jail Manual, Para 516-B, Criminal Procedure Code, 1973, S.433A and 432, Indian Penal Code, 1860, Ss.304-B, 468-A – Life imprisonment for dowry death – It is not heinous offence – Accused is entitled to premature release after serving 10 years actual imprisonment and 14 years including remissions as per 2(b) of Haryana Government Instructions dated 8.8.2000. (Chhajju Vs State of Haryana & Ors.) 2002(2) Criminal Court Cases 242 (P&H)  

Punjab Land Revenue Act, 1887, S.13 – Lambardar – Collector passed order in absence of petitioner – In appeal Advocate filed affidavit who argued matter on behalf of petitioner – Commissioner allowed appeal and appointed petitioner as Lambardar – Financial Commissioner set aside order of Commissioner and appointed respondent No.4 as Lambardar –  Matter remitted back to Collector to decide the matter afresh after hearing the parties. (Surinder Singh Vs Financial Commissioner) 2003(3) Civil Court Cases 223 (P&H) 

Punjab Municipal Act, 1911, Ss.16, 22 – President – Removal – Policy by Govt. to allot land to persons in unauthorised occupation – Application by claimant countersigned by President – Sale deed in their favour executed by Executive Officer – President charged for illegal allotment as name of only one applicant was mentioned in list of persons who were in possession of land – List of persons has no authenticity as no enquiry was shown to be made at time of its preparation – Charge levelled against President, held was  without any basis – Allotment even if assumed to be illegal, it was not continuing wrong – Provision of S.22 not attracted. (Vijay Mahajan Vs state of Punjab) AIR 2002 P&H 190

Punjab Municipal Act, 1911, Ss.84, 86, Civil Procedure Code, 1908, S.9 – Property tax – Assessment and levy – Civil suit challenging assessment and levy of such tax – Provision of appeal contained in S.84 of the Act provides a complete remedy and no other remedy is available – Civil suit is barred. (N.D.M.C. Vs Satish Chand (Deceased) by Lr. Ram Chand) 2003(2) Apex Court Judgments 384 (S.C.) : 2003(3) Civil Court Cases 640 (S.C.) 

Punjab Municipal Act, 1911, S.188 – Birth and death entries – Municipal entries – Entry made in death register maintained by Municipal Committee in the due discharge of its official records is admissible in evidence. (Hans Raj (Dead) through L.Rs. & Anr. Vs Karmi & Ors.) 2004(2) Civil Court Cases 17 (P&H)

Punjab Package Deal Properties (Disposal) Act, 1976, S.2(1-A) – Package deal property – Is one which is transferred by Central Government to State Government on payment of price – Suit land, applied for transfer by appellant approved by Sales Commissioner – Panchayat Samiti challenged the same in appeal – Such land did not find mention in the Schedule attached to the Act and thus property was not a package deal property – Property belonged to District Board and on its abolition, it devolved upon Panchayat Samiti – Since land did not belong to State Government, transfer was not valid. (Kashmir Singh & Ors. Vs Panchayat Samiti, Ferozepur & Ors.) 2004(2) Apex Court Judgments 184 (S.C.)

Punjab Panchayat Raj Act, 1994, Ss.3,4 – Declaration of territorial area of Gram Sabha and establishing of Gram Sabha – Govt. does not exercise judicial or quasi judicial function – Rule of natural justice is not required to be observed – Failure to give opportunity of hearing to residents of area excluded from Gram Sabha, Wazidpur and now included in Gram Sabha, Khanpur before issuing notification – Does not render notification invalid. (State of Punjab Vs Tehal Singh) AIR 2002 S.C. 533

Punjab Police Manual, 1934, Vol. II, Rule 16(2)(i) – Service – Absence from duty unauthorised and wilful on 21 occasions – Employee did not improve himself – Employee a habitual absentee and did not take any lesson from the previous punishments awarded to him – Disciplinary authority dismissed the employee from service – Held, when the charge against the appellant is habitual absence for long periods on several occasions unauthorisedly, then view taken by disciplinary authority is justified. (Maan Singh Vs Union of India & Ors.) 2003(1) Apex Court Judgments 473 (S.C.)

Punjab Police Rules, 1934, R.12.21 – Constable – Consumption of liquor in office and misbehaviour with a lady constable – Preliminary inquiry conducted – Order of discharge was passed simplicitor and there was no stigma of punishment – Preliminary enquiry was not done with the object of finding out any misconduct on the part of the respondent, it was done only with a view to determine the suitability of the respondent within the meaning of Punjab Police Rule 12.21 – Termination was not founded on misconduct of the employee – Order of Courts below that termination order is illegal, null and void reversed and appeal allowed. (State of Punjab & Ors. Vs Balbir Singh) 2005(1) Apex Court Judgments 277 (S.C.)

Punjab Police Rules, 1934, R.13, Indian Police Act, 1861, Ss.2 & 12 – Service – Out of turn promotion based upon courage on anti-terorist front or outstanding performance in Sports by DGP – Not permissible under the Punjab Police Rules. (S.I.Paras Kumar & Ors. Vs S.I.Ram Charan & Ors.) 2004(2) Apex Court Judgments 169 (S.C.)

Punjab Police Rules, 1934, R.23.4 – Entry in Surveillance Register – Entry made on the basis of resolution of village Panchayat and on belief of Inspector of police that petitioner had links with bad elements, habitually addicted to crime and disturbing peace of village – No material to justify the action – Mere belief of an officer is not sufficient – Belief must be supported by material and reasons – Authority directed to remove the name of petitioner from the Surveillance Register. (Lakha Singh Vs State of Punjab) 2004(3) Criminal Court Cases 172 (P&H)

Punjab Police Rules, R.23.4 & 23.9 – Entry in Surveillance Register – Authority can review the entry either suo motu or on representation. (Narain Singh Vs State of Punjab) 2002(2) Criminal Court Cases 327 (P&H) 

Punjab Police Rules, R.23.4 & 23.9.(2) – History sheet – Persons whose name can be entered in Part II of Register are : (a) persons who have been convicted twice, or more than twice of offences mentioned in rule  27.29; (b) persons who are reasonably believed to be habitual offenders or receivers of stolen property whether they have been convicted or not; (c) persons under security under Section 109 or 110 Cr.P.C. and (d) convicts released before the expiration of their sentences under the Prisons Act and Remission Rules without the imposition of any conditions. (Narain Singh Vs State of Punjab) 2002(2) Criminal Court Cases 327 (P&H) 

Punjab Police Rules, R.23.4 & 23.9.(2) – History sheet – Persons whose names can be entered in Part I of Register No.10 are : (a) All persons who have been proclaimed under Section 87 Cr.P.C. (b) All released convicts in regard to whom an order under Section 565, Criminal Procedure Code, has been made; (c) all convicts the execution of whose sentence is suspended in the whole, or any part of whose punishment has been remitted conditionally under Section 401 Cr.P.C. and  (d) All persons restricted under Rules of Government made under Section 16 of the Restriction of Habitual Offenders (Punjab) Act, 1918. (Narain Singh Vs State of Punjab) 2002(2) Criminal Court Cases 327 (P&H) 

Punjab Police Rules, R.23.4 – Entry in Surveillance Register or History sheet – Can be challenged on the ground that entry is not based on any reasonable belief. (Narain Singh Vs State of Punjab) 2002(2) Criminal Court Cases 327 (P&H) 

Punjab Police Rules, Rules 23.4 and 23.9 – History sheet – Can be opened of a person who is not even once convicted of a offence  but who is reasonably to be habitual offender or receiver of stolen property – Authority, has however to apply his mind to form an opinion that the concerned person is either habitual offender or receiver of stolen property or habitually addicted to crime or aider or abettor of such person. (Narain Singh Vs State of Punjab) 2002(2) Criminal Court Cases 327 (P&H) 

Punjab Pre-emption Act, 1913, S.21-A – Transferee – Improvement in status – Provision nullifies the effect of acquisition of any right by the defendant in a pre-emption suit for the purpose of improvement of his status pendente lite except by way of inheritance or succession – It is not attracted only in a case where one of the co-owners as a defendant in a pre-emption suit loses his status by virtue of being a co-vendee with a stranger and subsequently improves his status by acquiring pendente lite the right of the stranger vendee – Scope of the provision cannot be generalised nor to limit to particular situation but has to be understood in the facts of each case – For the purpose of the first suit, the defence of the improvement of status based on the second sale cannot be accepted because that acquisition  of right itself is amenable to challenge and was indeed challenged – Acquisition of status for the purpose of Section 21-A of the Act would mean, a status which is undisputable and/or not amenable to challenge and not the one in controversy or subject matter of challenge before a competent court. (Prema (Dead) Thr.L.Rs. Vs Surat Singh & Ors.) 2003(1) Apex Court Judgments 687 (S.C.)

Punjab Pre-emption Act, 1913, S.28-A – Transferee – Improvement in status – In a suit of pre-emption if claim is based or a plea taken is dependent on a right of pre-emption derived from the co-ownership of the property and title to such land or property is liable to be defeated by enforcement of a right of pre-emption with respect to it, the Court is directed not to decide the claim or plea until the period of limitation for the enforcement of such right of pre-emption has expired or the suit if filed is finally decided – Section 28-A is attracted where the plaintiff seeks relief of pre-emption as also to a case where the improvement of status is pleaded in defence – Plea of improvement of status would not be available where the second sale itself is a subject matter of second suit. (Prema (Dead) Thr.L.Rs. Vs Surat Singh & Ors.) 2003(1) Apex Court Judgments 687 (S.C.)

Punjab Prohibition of Cow Slaughter Act, 1955, S.3 – Conviction – Matter 7 years old – Sentence reduced from 1-1/2 years to one year. (Tahir Vs State of Haryana) 2004(3) Criminal Court Cases 499 (P&H)

Punjab Prohibition of Cow Slaughter Act, S.8 – Conviction – Accused sentenced to undergo one year’s simple imprisonment and to pay fine of Rs.5,000/- – Offence punishable with a maximum of 5 years imprisonment – No interference in quantum of sentence. (Khursheed Vs State of Haryana) 2005(2) Criminal Court Cases 689 (S.C.)

Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973, Ss.4 & 5, Indian Succession Act, 1925, Ss.87, 211 and 213 – Will – Bequest in favour of government hospital absolutely and forever – Three executors appointed – Mutation made in favour of hospital – Hospital moved application for eviction of respondent No.1 who is unauthorised occupant – Held, hospital was owner and not beneficiary – Eviction proceedings are maintainable under the Public Premises Act – After expiry of lease respondent No.1 is in unauthorised possession and that competent authority is right in passing the order of eviction. (Commissioner, Jalandhar Division & Ors. Vs Mohan Krishan Abrol & Anr.) 2004(1) Apex Court Judgments 466 (S.C.) : 2004(2) Civil Court Cases 124 (S.C.)

Punjab Regulation of Colonies Act, 1975, Ss.3(1) and 11 – Land converted into plots and sold without obtaining licence – Complaint filed by Authority 5 years after last transaction – Held, period of limitation is three years u/s 468 Cr.P.C. – Complaint quashed. (Shri Adarsh Kumar Vs Junior Engineer, Office of the Legal Assistant, Housing Urban Department) 2002(3) Criminal Court Cases 158 (P&H)

Punjab Regulation of Compounded Cattle, Food, Concentrates and Mineral Mixtures Order, 1988, Clauses 3, 11 and 2(x) – Cattle feed – Sample taken from a stitched bag – Accused who is dealer cannot be held guilty. (State of Punjab Vs Jagdish Chand & Anr.) 2004(3) Criminal Court Cases 161 (P&H)

Punjab Security of Land Tenure Act, 1953, Ss.9(1)(i) and 10A – Landlords small land owners – If the landlords are small land owners, tenant is not entitled to protection of S.10A of the act. (Harkaran Singh & Ors. Vs Financial Commissioner Haryana) 2003(3) Civil Court Cases 622 (P&H) 

Punjab Town Improvement Act, 1922, S.27E – Plot – Discretionary quota – No guidelines framed – Allotment is arbitrary – Refusal to accord approval to provisional allotment by State Government without giving opportunity of hearing to allottee – Legal. (The Jullundur Improvement Trust Vs Baldev Raj Verma) AIR 2002 P&H 350

Punjab Village Common Lands Rules, 1964, R.19 – Lessee cannot subsequently challenge the title of his landlord. (Gram Panchayat Vs The Joint Development Commissioner) 2003(3) Civil Court Cases 319 (P&H) 

Punjab Village Common Lands (Regulation) Act, 1961, Ss.7 & 11, Punjab Village Common Lands Rules, 1964, R.19 – Application for declaration of ownership – Applicant proved to be a lessee and in possession after expiry of lease period – Held, possession of lessee after the expiry of lease period is unauthorised and illegal – A lessee cannot subsequently challenge the title of his landlord – Application dismissed. (Gram Panchayat Vs The Joint Development Commissioner) 2003(3) Civil Court Cases 319 (P&H) 

Punjab Village Common Lands (Regulation) Act, 1961, Ss.7 & 11 – ‘Banjar Qadim” – Entry in revenue record – It cannot be concluded that land in question was not being used or common purposes of the village and the same does not vest in the Panchayat. (Gram Panchayat Vs The Joint Development Commissioner) 2003(3) Civil Court Cases 319 (P&H) 

Railway Accidents and Untoward Incidents (Compensation) Amendment Rules, 1997 – Death in accident on 7.7.1991 – As per rules prevailing then compensation payable was Rs.2 Lakhs – However, with amendment of Rules in 1997 compensation payable was Rs.4 Lakhs – Compensation payable will be at the rate as existing on date of final decision – Compensation of Rs.4 Lakhs awarded – As compensation is awarded on the basis of amended provisions, interest at the rate of 6% will be payable from date of final decision till date of payment. (R.Geetha Vs Union of India) 2005(1) Civil Court Cases 663 (Kerala)

Railway Claims Tribunal Act, 1987, S.13 – Rice – Short delivery – Claim for damages – Determination of rate of rice by Tribunal at lower rate than one claimed without assigning any reason – Is arbitrary. (M/s Hamuman Prasad Sarma Vs Union of India) AIR 2004 Gauhati 26

Railway Claims Tribunal Act, 1987, S.17(2) – Delay – Condonation – Only requirement of S.17(2) is to show ‘sufficient cause’ to satisfaction of Tribunal for delay – Separate application asking for condonation of delay is not required – Provision not to be confused with S.5 Limitation Act. (M/s Hulash Chand Choraria Vs Union of India) AIR 2003 Gauhati 151

Railway Claims Tribunal Act, 1987, S.18, Railway Claims Tribunal (Proceeding) Rules, 1989, R.44 – Train accident – Compensation – Requirement of succession certificate – Amount of compensation is never treated as debt or security – Therefore no succession certificate can be issued in relation to amount awarded as compensation to deceased-claimant – Order of Court to claimant to produce succession certificate to withdraw amount – Not proper. (Chitrapu Vs Union of India) AIR 2004 A.P. 413

Railway Claims Tribunal Act, 1987, Ss.13, 15, 24 – Jurisdiction – Civil suit for damages against railway and private company – Not barred by S.15 – Suit cannot be transferred to Tribunal. (Union of India Vs Maharashtra Small Scale Industries Development Corporation Ltd.) AIR 2002 Bombay 515

Railway Property (Unlawful Possession) Act, 1966, S.3, Criminal Procedure Code, 1973, S.173 – Officer of Railway Protection Force making inquiry in an offence u/s 3 of the Act and filing complaint is not a Police Officer – Complaint filed by Inspector, Railway Protection Force is not a complaint on police report. (Suresh Kumar & Ors. Vs Railway Protection Force & Ors.) 2004(4) Criminal Court Cases 205 (P&H)

Railways Act, 1890, S.123 – “Dependant” – Daughter – Comes within definition of dependant irrespective of fact whether she is married or unmarried – Further she is not required to prove that she was dependant on her deceased father. (Unonof India Vs N.Kantabai) AIR 2004 A.P. 228

Railways Act, 1890, S.123 – Injury caused to passenger – Railways administration is responsible and liable to treat and bear medical expenses in respect of injured passenger while travelling or within railways precincts. (Union of India Vs Sanjay) AIR 2002 Bombay 436

Railways Act, 1890, S.123 – Stone throwing – Passenger injured – Railways administration is not liable to pay compensation to injured. (Union of India Vs Sanjay) AIR 2002 Bombay 436

Railways Act, 1890, S.124 – Passenger standing in door of bogie fell down due to jerk of railway and died – Accident not covered by S.124 – Dependants of deceased not entitled to compensation u/s 124. (Smt.Usha Rani Vs Union of India) AIR 2004 P&H 148

Railways Act, 1890, S.124 – Untoward incident – Passenger slipped due to rush while reboarding train – Left leg below knee had to be amputated and he became unfit for any job – Compensation of Rs.2 lac awarded by Tribunal – No interference. (Union of India Vs Rajesh Kumar) AIR 2003 P&H 141

Railways Act, 1890, S.124-A, Proviso (d) – Death of passenger during untoward incident – Compensation – Non production of ticket – Rejection of claim on this ground is unjustified. (Leelavathamma Vs The Union of India) AIR 2004 Karnataka 215

Railways Act, 1890, S.124-A, Railway Accidents (Compensation) Rules, 1990, R.3(1) (as amended on 1.11.1997) – Passenger – Death as a result of untoward incident – Liability of Railways to pay compensation is limited to a maximum of Rs.Four lacs even if assessed liability exceeds Rs.4 Lacs. (Usha Rani Vs Union of India) AIR 2004 P&H 148

Railways Act, 1890, S.124-A – Railway accident – Proof of ticket – Co-passenger deposing that he advanced Rs.20/- for purchase of ticket as there was no change of 100 rupees note offered by deceased at booking counter – Version not doubted by giving any suggestion in cross-examination – No justification for not accepting version of co-passenger – Claimant found entitled to compensation. (Dasari Laxmi Vs Union of India) AIR 2003 A.P. 56

Railways Act, 1890, S.124-A – Untoward accident – Cases pending in civil Court – Liable to be transferred to Railways Claims Tribunal irrespective of date of their taking place. (Union of India Vs Mulko Bai) AIR 2002 M.P. 22

Railways Act, 1890, S.125(d), Railway accident Rules (1990) R.1 – Death in bomb blast at railway station – Death occurred after amendment of rules – Claimants entitled to compensation in accordance with amended rules irrespective of earning capacity of deceased and loss suffered by them – In interest of justice Rs.75,000/- each awarded to parents and Rs.1,25,000/- each to wife and child of deceased. (Smt.Saraswati Das Vs The Union of India) AIR 2003 Gauhati 11

Railways Act, 1890, S.127 – Tribunal can award interest from date of decision but not prior thereto. (Union of India Vs Sanjay Sampatrao) AIR 2002 Bombay 436

Railways Act, 1890, S.78-B – Consignment – On basis of bogus railway receipt delivery of goods to wrong person – Negligence and failure of authorities to take proper care and caution – Consignor and Insurance Company are entitled to claim loss with interest and costs. (Union of India Vs M/s Shree Emporium) AIR 2002 Madras 48

Railways Act, 1890, S.78(B) – Notice – Served u/s 80 CPC within six months from date of delivery of goods for carriage – Purpose of notice served – Non mention of S.78(B) in notice is of no consequence. (Bharat Kumar & Anr. Vs Union of India & Anr.) 2004(3) Civil Court Cases 237 (Rajasthan)

Railways Act, 1890, S.93 – Oranges – Late delivery – Deterioration and decay of consignment – Oranges when booked were green and in good condition – Floor of wagon found to be stained with acid – Fact that consignor failed to prove that acid which caused damage was the one other than citric acid which naturally comes out of oranges when deteriorated with lapse of time – Does not disentitle him to damages with interest. (Rajinder Singh Brothers & Co. Vs Union of India) AIR 2003 Delhi 99

Railways Act, 1890, Ss.93, 96 & 97 – Transportation of coal – Short delivery – Consignment at owner’s risk – Cannot be said that Railways have no responsibility to take care of consignment entrusted to them – Burden is on Railways to establish that reasonable care as expected of a transporter was taken and more so when there is abnormal delay in transit – Held, there is no illegality in order of Claims Tribunal making Railway authorities liable for shortage of coal. (Union of India Vs Hindustan Sanitaryware) 2003(2) Civil Court Cases 521 (A.P.) 

Railways Act, 1890, Ss.123(b), 125(d) – Dependent – Parents of deceased – Can claim compensation in presence of wife and child of deceased. (Smt.Saraswati Das Vs The Union of India) AIR 2003 Gauhati 11

Railways Act, 1890, Ss.124-A, 2(29) – Person having valid ticket – Is bona fide passenger – Death of passenger in untoward incident – Claimant is entitled to claim compensation – Burden to prove that deceased was not bona fide passenger with valid ticket is on the Railways.  (Union of India Vs Baburao Koddekar) AIR 2003 A.P. 23

Railways Act, 1989, S.93, Partnership Act, 1932, S.69 – Non delivery of goods – Suit for damages by unregistered partnership firm –  Suit can be filed even by an unregistered firm since liability of Railway is one u/s 93 of Railways Act and not on basis of contract with firm. (Bharat Kumar & Anr. Vs Union of India & Anr.) 2004(3) Civil Court Cases 237 (Rajasthan)

Railways Act, 1989, S.123(2) – Accident fall from train – Comes within the ambit of “untoward incident”. (General Manager, South Central Railways Vs K.Bhuvaneshwari) 2003(2) Civil Court Cases 667 (A.P.) 

Railways Act, 1989, S.123(2) – Accident fall from train – Death – Compensation –  On the basis of oral and documentary evidence Tribunal came to conclusion that deceased was a bonafide passenger and fell down from train while trying to get down – Railways not adduced any material or documents to disprove the claim – No illegality in order of Tribunal awarding compensation. (General Manager, South Central Railways Vs K.Bhuvaneshwari) 2003(2) Civil Court Cases 667 (A.P.) 

Railways Act, 1989, Ss.123, 124-A – Untoward incident – Deceased trying to enter into a coach while train was rolling on to the platform and had not come to a stop – A fall from a running train by a bona fide passenger is an untoward incident – Compensation  awarded  to dependents of deceased – Not unreasonable – Appeal dismissed. (General Manager, South Central Railway, Secunderabad Vs A.Veera Lakshmi Bhaskaram @ Lakshmi & Ors.) 2004(3) Civil Court Cases 519 (A.P.)

Railways Act, 1989, Ss.123(c) and 124-A – Accidental fall down from train and death on spot – Investigating Authority submitted final report narrating the incident – Tribunal not correct in disbelieving said report while rejecting claim of dependants without even considering amended provisions of S.123 – Railway failing to prove that cause of death of deceased falls within five exceptions – Held, Railway is liable to pay statutory compensation of Rs.4 lakhs with interest at 9% p.a. from date of filing of claim petition till date of realisation. (Godisela Rajamma Vs Union of India) 2003(1) Civil Court Cases 481 (A.P.)  

Railways Act, 1989, S.124A – ‘Passenger’ – Includes a person with a valid platform ticket. (R.Geetha Vs Union of India) 2005(1) Civil Court Cases 663 (Kerala)

Railways Act, 1989, S.124A – Bona fide passenger – Military personnel travelling with duly authorised documents – Death in accident – Claim cannot be rejected that he was not a bona fide passenger as he was not having any ticket – Since deceased was travelling authorisedly with valid documents, he is to be treated as a passenger. (R.Geetha Vs Union of India) 2005(1) Civil Court Cases 663 (Kerala)

Railways Act, 1989, S.124A – Bonafide passenger – Fall from train – Death – Compensation – As per postmortem report contents of stomach smelt alcohol – Merely because deceased was smelling of alcohol does not prove intoxication – Award of compensation of Rs.4 lacs upheld. (Union of India Vs Amaravati Devi & Ors.) 2004(2) Civil Court Cases 255 (Delhi)

Railways Act, 1989, Ss.124-A, and 123-C – Bona fide passenger – Fall from train – Death – Compensation – Dependents need not to prove that “untoward incident” had happened because of wrongful act, neglect or default on the part of the railway administration – The only ground on which the railway can avoid its liability is that the deceased had suffered injuries because of his own criminal act – In the absence of evidence to prove such a criminal act, railway administration cannot escape its liability to pay compensation. (Union of India Vs Smt.Murti Devi) 2004(2) Civil Court Cases 331 (Delhi)

Railways Claims Tribunal Act, 1987, S.124-A – Accidental fall from train – Liquid contents of stomach of deceased who was a bona fide passenger in train smelt alcohol – By itself not a proof that deceased had fallen from train because of intoxication – On this ground Railway cannot avoid its liability to pay compensation to legal representatives of deceased. (Union of India Vs Smt.Amaravatidevi) AIR 2004 Delhi 218

Railways Claims Tribunal Act, 1987, Ss.123, 124-A – Railway accident – ‘Untoward incident’ – Includes accidental falling of any passenger from train – Only ground on which railway can avoid its liability is that deceased had suffered injuries because of his own criminal act. (Union of India Vs Smt.Murti Devi) AIR 2004 Delhi 216

Rajasthan Agricultural Produce Market Act, 1961, Ss.17, 28 and Rajasthan Agricultural Produce Market Rules, 1963, Rule 59 – Market fee – Evasion of payment – It is an offence u/s 28 – Liability to pay market fees is of the licensee and the collection has to be in the prescribed manner. (State of Rajasthan Vs Mool Chand & Anr.) 2005(1) Criminal Court Cases 86 (S.C.)

Rajasthan Co-operative Societies Act, 1965, Ss.75 & 137 – Dispute neither falling in Clauses (a) to (e) of sub-section (1) of S.75 nor in Clauses (a) to (c) of sub-section (2) of S.75 – Held, suit not excluded from domain of Civil Court. (Ramesh Chand Ardawatiya Vs Anil Panjwani) 2003(1) Apex Court Judgments 595 (S.C.)

Rajasthan Municipalities Act – Suit against Municipal Council – Notice as required under the Rajasthan Municipalities Act not served – Suit rightly dismissed. (Raj Kumar Vs District Judge, Sriganganagar & Ors.) 2005(2) Civil Court Cases 194 (Rajasthan)

Rajasthan Premises (Control of Rent & Eviction) Act, 1950, S.19-A – Mere depositing of rent udder S.19-A does not amount renouncing character as a tenant or denial of title of landlord. (Ram Kalyan Vs Smt.Ladbai & Anr.) 2004(3) Civil Court Cases 177 (Rajasthan)

Recovery of Debts Due to Banks and Financial Institutions Act, 1993, S.2(g) – Debt – Amount claimed by D.H. under decree passed by Foreign Court – Is “Debt” within meaning of S.2(g). (Bank of India Vs Harshadrai Odhavji) AIR 2002 Bombay 449

Recovery of Debts Due to Banks and Financial Institutions Act, 1993, Ss.2(g), 18 – “Debt” – Inldudes fraudulent debts – Fact that debt was fraudulent would not take away jurisdiction of Tribunal. (State Bank of India Vs Madhumita Construction (Pvt.) Ltd. ) AIR 2003 Calcutta 7

Recovery of Debts Due to Banks and Financial Institutions Act, 1993, S.17 – Money decree by foreign Court – Tribunal can entertain execution – Tribunal entitled to exercise all powers of District Court under CPC – S.44-A CPC would not prevail over and in derogation of S.17 and other provisions under Act. (Bank of India Vs Harshadrai Odhavji) AIR 2002 Bombay 449

Recovery of Debts Due to Banks and Financial Institutions Act, 1993, Ss.17, 18, 31 – Civil Court – Ouster of jurisdiction – Pending suits before Civil Court are controlled by S.31 of the Act. (Durga Parsad Sah Vs State of Bihar) AIR 2003 Patna 102

Recovery of Debts Due to Banks and Financial Institutions Act, 1993, Ss.17, 19 – Single application for recovery of debt due under two transactions – Is maintainable. (Syndicate Bank Vs M/s Chamundi Industries) AIR 2002 Karnataka 56

Recovery of Debts Due to Banks and Financial Institutions Act, 1993, Ss.18, 34 – Counter claim – Must have nexus with suit, which could be conveniently tried in that suit. (State Bank of India Vs Madhumita Construction (Pvt.) Ltd. ) AIR 2003 Calcutta 7

Recovery of Debts Due to Banks and Financial Institutions Act, 1993, Ss.19(6), 19(8), 36, 22 – Counter claim – Order directing payment of Court fee – Order not illegal. (M/s Capbeauti Vs The Karnataka Bank Ltd.) AIR 2002 Karnataka 434

Recovery of Debts Due to Banks and Financial Institutions Act, 1993, Ss.19(7) and 29 – It is not obligatory to apply second and third Schedule of Income Tax Act and Rules while investigating a claim or objection to attachment and sale during the course of execution of recovery certificate under Recovery of Debts Due to Banks and Financial Institutions Act. (Keshrimal Jivji Shah & Anr. Vs Bank of Maharashtra & Ors.) 2004(3) Civil Court Cases 375 (Bombay)

Recovery of Debts Due to Banks and Financial Institutions Act, 1993, Ss.20, 36 – Auction sale – Setting aside – Aggrieved party can assail sale before Tax Recovery Officer and also has remedy of appeal under Act for setting aside sale – Writ petition not maintainable. (M/s Bharat Beedi Works Ltd. Vs Kunhambu K. & Ors.) AIR 2002 Karnataka 259

Recovery of Debts Due to Banks and Financial Institutions Act, 1993, S.20 – “An order” in S.20 – Meaning – Does not mean “final order” – “Any order” made or deemed to have been made by Tribunal – Can be challenge din appeal. (Jension & Nicholson (India) Ltd. Vs Industrial Investment Bank of India) AIR 2002 Calcutta 73

Recovery of Debts Due to Banks and Financial Institutions Act, 1993, S.20 – Rejection of application U.O.9.R.13 CPC – It is final order – It affects the rights of parties – Order is appealable – Writ petition against such order is not maintainable. (M/s Ashok Kumar Rice Oil and Flour Mills Vs Presiding Officer) AIR 2002 Allahabad 364

Recovery of Debts Due to Banks and Financial Institutions Act, 1993, S.22 – Bank debt – Exparte decree – Recovery certificate issued pursuant to decree – Practice of filing of writ petition praying for stay of recovery proceedings till disposal of restoration application, deprecated – Petitioner has remedy to file appeal before appellate Tribunal. (M/s Krishna Rice Mill and others Vs Recovery Officer, Debt Recovery Tribunal) AIR 2004 Allahabad 57

Recovery of Debts Due to Banks and Financial Institutions Act, 1993, S.22(h), Recovery of Debts Due to Banks and Financial Institutions Rules, 1993, Rr.5(4), 2(g) – Registrar – Cannot reject or dismiss an application – Registrar can only decline to register the application if it is defective – If a party asserts that there is no defect then Registrar has to post the unnumbered application before the Tribunal for deciding whether there is defect or not. (Vincent Vs Housing & Urban Development Corporation) 2003(2) Civil Court Cases 239 (Kerala) 

Recovery of Debts Due to Banks and Financial Institutions Act, 1993, S.29, Income-tax Act, 1961, Sch.2, R.57; Sch.3, Income-tax (Certificate Proceedings) Rules, 1962, R.22 – Debt – Recovery – Auction sale of property – Procedure contemplated by Second and Third Schedule to Income-Tax Act has to be followed – Use of phrase “as far as possible” in S.29 provides liberty to Recovery Officer to follow said procedure with necessary modifications. (P.Mohanreddy Vs Debts Recovery Appellate Tribunal) AIR 2004 A.P. 94

Recovery of Debts Due to Banks and Financial Institutions Act, 1993, S.31 – Money suit by Bank pending in civil Court – Transfer to Tribunal – Depends on determination of amount on basis of cause of action i.e. on amount sought to be recovered on date of institution of suit and not on basis of interest accrued during pendency of suit. (Durga Parsad Sah Vs State of Bihar) AIR 2003 Patna 102

Redemption of Mortgages (Punjab) Act, 1913, Ss.11 & 12 – Mortgage – Redemption – Dismissal of application under Punjab Act by Collector do not operate as res judicata in a suit for redemption before the Civil Court. (Mehnga Singh & Ors. Vs Gurdial Singh & Ors.) 2004(2) Civil Court Cases 525 (P&H)

Registered letter – Endorsement like addressee not found, party refused, addressee not in village, no such address and incorrect address – All these endorsements should be supported by reasons – Report of “Refusal” should be got endorsed at least from two mediators preferably neighbours – Postman has to take every care to see that the registered articles or letters are delivered by making necessary enquiries and returning the letters to the sender should be the last resort – If any such endorsement is found, without proper explanation, the postmaster concerned shall also be made responsible and proper action has to be taken against him. (Gajula Rama Rao Vs Thondamanati) 2003(3) Civil Court Cases 188 (A.P.) 

Registration Act, 1908, S.2(6) – Immovable property – Machinery attached to earth or permanently fastened to anything attached to earth – Is immovable property. (Kulwant Singh Vs Makhan Singh) AIR 2003 P&H 142

Registration Act, 1908, S.17 – Agreement to sell – Compulsorily registrable in State of U.P. (Registration Act as amended by U.P. Act No.57 of 1976). (Surendra Kumar Vs Amarjeet Singh & Ors.) AIR 2004 Allahabad 335

Registration Act, 1908, S.17 – Agreement to sell – Not compulsorily registrable. (Naginbhai P.Desai Vs Taraben A.Sheth) AIR 2003 Bombay 192

Registration Act, 1908, S.17 – Consent decree – No antecedent title or interest in suit land – Interest or title created for the first time on passing of the decree regarding property of value of more than Rs.100/-  – Held, decree requires compulsory registration – Without registration decree does not confer any valid title. (Nachhattar Singh & Anr. Vs Jangir Singh & Ors.) 2005(2) Civil Court Cases 353 (P&H)

Registration Act, 1908, S.17 – Family settlement – Oral – Subsequently in form of a memorandum – Does not require registration. (Vijay Kumar Jain Vs Sanjay Kumar) AIR 2003 Delhi 168

Registration Act, 1908, S.17 – Family settlement – Showing that consideration has passed – It creates new rights – Requires compulsory registration – Photostat copy of such document cannot be permitted to be proved by allowing secondary evidence. (Hari Singh Vs Shish Ram) AIR 2003 P&H 150

Registration Act, 1908, S.17 – Mortgage – Redemption – Property more than Rs.100/- – Endorsement on the original registered mortgage deed and receipt issued thereof – Requires compulsory registration. (Tulajappa Vs Subhas) AIR 2003 Karnataka 118

Registration Act, 1908, S.17 – Non ancestral property – Partition between father and son – Amounts to creation of right for the first time – Partition deed of non ancestral property requires compulsory registration and without registration the document cannot be taken into consideration. (Roshan Lal & Anr. Vs Resham Lal & Anr.) 2005(2) Civil Court Cases 390 (P&H)

Registration Act, 1908, S.17 – Property partitioned amongst brothers by metes and bounds by oral partition which was reduced into writing by memorandum of partition – Each of party would become exclusive owner of share allotted to him – Any further transaction of exchange of properties between them is to be done necessarily by registered document – Unregistered document cannot invest any title in plaintiff. (Naganna B.Ningappa Vs Shivanna) AIR 2004 Karnataka 209

Registration Act, 1908, S.17, Contract Act, 1872, Ss.126 & 128 – Contract of guarantee – Not compulsory registerable – Guarantee may be either oral or written – Guarantee is enforceable in law even in absence of stamped document duly registered. (Karnataka State Industrial Investment and Development Corporation Limited Vs State Bank of India & Anr.) 2004(3) Civil Court Cases 653 (Karnataka)

Registration Act, 1908, S.17 – Agreement for construction of plinths – On completion of plinths the same to be handed over to FCI under a lease agreement to be executed between the parties in prescribed proforma – It is only an executory agreement and not an agreement creating rights in immovable property, hence not compulsorily required to be registered – It was a mere agreement between parties which was not registered but was admissible in evidence. (Food Corporation of India & Ors. Vs M/s.Babulal Agrawal) 2004(1) Apex Court Judgments 128 (S.C.) : 2004(2) Civil Court Cases 104 (S.C.)

Registration Act, 1908, S.17 – Agreement for securing another agreement or deed in future – Does not require compulsory registration. (Food Corporation of India & Ors. Vs M/s.Babulal Agrawal) 2004(1) Apex Court Judgments 128 (S.C.) : 2004(2) Civil Court Cases 104 (S.C.)

Registration Act, 1908, S.17 – Consent decree – A decree which declares pre-existing rights does not require registration. (Ram Piari Vs Shamsher Singh & Ors.) 2004(3) Civil Court Cases 97 (P&H)

Registration Act, 1908, S.17 – Document required to be registered but not registered – Effect – Such document cannot be looked into or looked at for any other purpose except for the collateral purpose i.e. for defining the relationship between the parties. (Ram Sarup (deceased) through LRs. Vs Sat Pal Suri ) 2005(1) Civil Court Cases 12 (P&H)

Registration Act, 1908, S.17 – Document when creates a right in a party and extinction of right to other party then such document is required to be registered. (Parmanand Setia Vs Somlal) 2003(2) Civil Court Cases 403 (Rajasthan) 

Registration Act, 1908, S.17 – Partnership firm – Immovable property – Partner relinquishing his right in an immovable property belong to firm need not be registered. (M/s Samyuktha Cotton Trading Co. Vs Bheemineni Venkata Subbaiah & Ors.) 2005(1) Civil Court Cases 501 (A.P.)

Registration Act, 1908, S.17 – Partnership – Dissolution – Distribution of assets of partnership  amongst partners as per their respective shares – It is not a case of transfer of any assets of the firm – Distribution of assets may be done either by way of an arbitration award or by mutual settlement between the partners themselves – Document which records settlement does not require registration since the document does not transfer or assign interest in any asset. (N.Khadervali Saheb (Dead) by L.Rs. & Anr. Vs N.Gudu Sahib) 2003(1) Civil Court Cases 680 (S.C.) : 2003(1) Apex Court Judgments 340 (S.C.)

Registration Act, 1908, S.17 – Family settlement – Decree creating right for the first time in property – It requires registration. (Rajinder Singh Vs Joginder Singh) 2003(1) Civil Court Cases 395 (P&H)

Registration Act, 1908, Ss.17, 49 – Oral exchange – Relating to immovable property of value of more than Rs.100/- – Such transaction falls within scope of S.49 – Not admissible in evidence if not registered. (Satyawan Vs Raghbir) AIR 2002 P&H 290

Registration Act, 1908, S.17(1)(b) – Partition deed – Unregistered – Can be relied upon to establish the severance of status in the joint family. (K.G.Shivalingappa (dead) by Lrs. & Ors. Vs G.S.Eswarappa & Ors.) 2004(2) Apex Court Judgments 469 (S.C.) : 2004(3) Civil Court Cases 508 (S.C.)

Registration Act, 1908, S.17(1)(b) – Relinquishment of  one’s rights in favour of other heirs – Requires compulsory registration –  Absolute rights conferred on one heir – Cannot be termed as  a memorandum of family settlement. (Rukayya Bai Vs Munni Bai & Anr.) 2004(3) Civil Court Cases 163 (M.P.)

Registration Act, 1908, S.17(2) – Bonds produced in Court as security – Such bonds are part of judicial proceedings and are not liable to be registered. (Civil Procedure Code, 1908, O.41.R.5). (Meenachil Panchayat Vs Sivasankara Marar) 2003(3) Civil Court Cases 258 (Kerala) 

Registration Act, 1908, S.17(2) – Unregistered sale deed – Not admissible in evidence – However it could be referred as explaining the nature and character of possession henceforth held by the party. (Kulwant Singh Vs Phula Singh) 2004(2) Civil Court Cases 156 (P&H)

Registration Act, 1908, Ss.17, 49, Transfer of Property Act, 1882, Ss.105, 107 – Rent deed/lease deed – When executed for more than 12 months then the same is compulsorily registerable. (Ram Sarup (deceased) through LRs. Vs Sat Pal Suri ) 2005(1) Civil Court Cases 12 (P&H)

Registration Act, 1908, Ss.17, 49, Transfer of Property Act, 1882, Ss.105, 107 – Rent deed for more than 5 years – Not registered – Period of tenancy cannot be read as applicable between the parties. (Ram Sarup (deceased) through LRs. Vs Sat Pal Suri ) 2005(1) Civil Court Cases 12 (P&H)

Registration Act, 1908, Ss.17, 49 – Family settlement – Not registered – Court can accept the document for the limited extent of a collateral purpose. (Lakshmaiah Vs Smt.Sarojamma & Anr.) 2004(2) Civil Court Cases 310 (Karnataka)

Registration Act, 1908, Ss.32 & 34 – Title to property – Verification – Registering Authority has no powers to verify or ascertain as to whether the executant of the document has title to the property which is sought to be dealt with under the document presented for registration – Refusal for registration of the document by Registering Authority on the ground of absence of title to such property to the executant or on account of any defect in his title to such property is per se illegal act on the part of the Registering Authority. (Gopal Dwarkaprasad Pandey Vs District Collector, Bhandara & Anr.) 2005(1) Civil Court Cases 47 (Bombay)

Registration Act, 1908, Ss.35, 69 – Registering authority is not required to satisfy title, possession or encumbrances in respect of property sought to be registered. (K.Eshaque Vs Sub Registrar) AIR 2002 Kerala 128

Registration Act, 1908, S.47, Transfer of Property Act, 1882, S.48 – Sale deed – Presented for registration and kept pending and registered thereafter – Held, it will operate from date of execution of sale deed and not from date of registration. (Veerabhadrappa & Anr. Vs Jagadishgouda) 2003(1) Civil Court Cases 546 (Karnataka) 

Registration Act, 1908, S.47 – Agreement to sell – Subsequent execution of another agreement – One which is earlier in time will prevail – Will take effect from the time when it was executed and not from the time of its registration. (Ved Nath Vs ndra Vikram) AIR 2003 Allahabad 198

Registration Act, 1908, S.48 – Registered document – Would take effect against oral agreement unless oral agreement is accompanied by delivery of possession – Oral agreement not accompanied by delivery of possession cannot be enforced except on ground of lis pendens. (Rajan Vs Yunuskutty) AIR 2002 Kerala 339

Registration Act, 1908, S.49 – Sale deeds – Unregistered – In suit for permanent injunction unregistered sale deeds sought to be relief on only to prove their possession over property – Held, the same can be admitted into evidence under third Proviso to S.49. (P.M.Anand Babu Vs Mir Akbar Ali Khan) AIR 2004 A.P. 243

Registration Act, 1908, S.49 – Unregistered partition deed – Admissible in evidence for collateral purposes viz. to establish severance of status and nature of possession. (Amangenti Prameela & Anr. Vs P.Venkat Reddy (Died) per LRs. & Ors.) 2004(2) Civil Court Cases 465 (A.P.)

Registration Act, 1908, Ss.49 Proviso and S.17(1)(a) – Unregistered gift deed – Cannot be used even for collateral purpose as the transaction affects immovable property requiring registration and therefore inadmissible in evidence. (Ranga Reddy Vs Sadhu Padamma) 2003(1) Civil Court Cases 540 (A.P.) 

Registration Act, 1908, S.57 – Certified copy of agreement registered as miscellaneous document – Petitioner not a party to the document and not a representative of any party – No implied agency – Does not come within the ambit of S.57(3) to claim certified copy of document or entries relating to the document. (Aysha Vs Sub Registrar) 2003(1) Civil Court Cases 116 (Kerala)

Registration Act, 1908, Ss.58, 59, 52 & 50 Evidence Act, 1872, S.114(e) – Endorsements made by Registrar at the time of registration of a document –  There is presumption that the events contained in the endorsement of registration were regularly and duly performed and correctly recorded. (Bhagat Ram & Anr. Vs Suresh & Ors.) 2004(1) Apex Court Judgments 80 (S.C.) : 2004(2) Civil Court Cases 297 (S.C.)

Registration Act, 1908, Ss.58, 59 – Registered document – Registrar is required to endorse he particulars at the time of registration viz. (1) the date, hour and place of presentation of the document for registration; (2) the signature and addition of every person admitting the execution of the document, and, if such execution has been admitted by the representative, assign or agent of any person, the signature and addition of such representative, assign or agent; (3) the signature and addition of every person examined in reference to such document under any of the provisions of this Act, and (4) any payment of money or delivery of goods made in the presence of the registering officer, in reference to the execution of the document, and any admission of receipt of consideration, in whose or in part, made in his presence in reference to such execution. (Bhagat Ram & Anr. Vs Suresh & Ors.) 2004(1) Apex Court Judgments 80 (S.C.) : 2004(2) Civil Court Cases 297 (S.C.)

Registration Act, 1908, S.60 – Endorsement of Sub Registrar – Presumption of correctness – Sale deed – Fraud of sale under garb of Will alleged – Executant being illiterate lady – Endorsement on sale deed by Sub Registrar showing contents read over and explained to vendor – Sub Registrar proved the endorsement – Evidence of marginal witness showing sale deed to have been read over by scribe to the vendor – Presumption u/s 60(2) not rebutted – Finding of lower Courts as to absence of payment of sale consideration is against evidence – Finding based on assumptions and conjectures, therefore, perverse and prejudicial – Declaration of nullity of sale deed, set aside. (Kripa Ram & Ors. Vs Smt.Maina) 2003(1) Civil Court Cases 711 (H.P.) 

Registration Act, 1908, S.71 – Registration of document – Sub Registrar has no authority to entertain objections and examine rival claims – Validity of registered document can be questioned in Court in appropriate proceedings and not before Sub Registrar. (Veerabhadrappa & Anr. Vs Jagadishgouda) 2003(1) Civil Court Cases 546 (Karnataka) 

Registration Act, 1908, Ss.73, 75 – Registration – Denial – Execution denied and plea that signature obtained on blank paper – Attestors and scribe of document and others present at the time of execution stated that petitioner executed document – No objection raised by petitioner before District Registrar – Order of District Registrar directing Sub Registrar to register document -Not perverse. (V.Umamaheswara Rao Vs Shaik) AIR 2004 A.P. 59

Registration Act, 1908, Ss.75, 47 – Sale deed – Executed but vendor not participating in its registration – Registrar ordered its registration – On registration of a document it dates back to its date of execution – Any subsequent sale by vendor to anyone else is illegal and void. (Mohinder Kaur Vs Gurbachan Singh & Ors.) 2004(2) Civil Court Cases 40 (P&H)

Registration Act, 1908, S.77, Civil Procedure Code, 1908, S.80 – Refusal to register document – Suit under section 77 – Proceeding is in nature of appeal from order of refusal to register – Question of issuing notice under section 80 CPC does not arise. (Veranna Veerabhadappa Korihalli Vs District Registrar & Anr.) 2005(1) Civil Court Cases 695 (Karnataka)

Registration Act, 1908, S.77, Civil Procedure Code, 1908, Section 80 – Refusal to register document – Suit under section 77 – Proceeding is in nature of appeal from order of refusal to register – Question of issuing notice under section 80 CPC does not arise. (Veranna Veerabhadappa Korihalli Vs District Registrar & Anr.) 2005(1) Civil Court Cases 695 (Karnataka)

Registration Act, 1908, S.77 – Decree of Court – Registration – Delay in presenting document for registration within 30 days of decree due to delay attributable to both Court and party – Held, party cannot be deprived of benefit of decree – Registering Authority directed to register document. (Anjinamma & Anr. Vs Puttahariyappa) 2003(1) Civil Court Cases 701 (Karnataka) 

Registration Act, 1908, S.77 – Document – Registration after obtaining decree from Civil Court – Limitation of 30 days – Is a procedural aspect – Has to be viewed very leniently – Refusal to register document presented beyond said period without considering the reasons for delay – Not proper – Order of refusal set aside. (Anjinamma Vs Puttahariyappa) AIR 2003 Karnataka 24

Registration Act, 1908, S.77 – Refusal to register document – Suit against – No material to hold that land in question comes within prohibition of Karnataka Land (Restriction on Transfer) Act, 1992 – Failure to produce any order of acquisition of land or acquisition notification to attract provisions of Act – No other enactment prohibiting registration of document – Order of Sub Registrar refusing to register document not proper. (Veranna Veerabhadappa Korihalli Vs District Registrar & Anr.) 2005(1) Civil Court Cases 695 (Karnataka)

Registration Act, 1908, S.77(1) – Refusal to register document – Suit against Government Officers – District Registrar and Sub Registrar impleaded – Assistant Government Pleader represented them – Non impleading of State Government or other authorities not fatal. (Veranna Veerabhadappa Korihalli Vs District Registrar & Anr.) 2005(1) Civil Court Cases 695 (Karnataka)

Registration of Births and Deaths Act, 1969, S.13(3) – Death prior to enforcement of Act – Provisions of S.13(3) applies – Magistrate to consider application and pass order after verifying correctness of same – Dismissal of petition by Magistrate as not maintainable – Improper. (Devamma Vs Registrar of Births and Deaths) AIR 2004 Karnataka 221

Relief clause – Not happily worded – Ordinarily, a plaintiff or petitioner should not be denied such relief to which he is found entitled on the facts established, simply because the relief clause is not very happily worded. (Rupadhar Pujari Vs Gangadhar Bhatra) 2004(2) Apex Court Judgments 668 (S.C.)

Representaton of the People Act, 1951, Ss.34, 8 – Conviction and sentence for at least two years – Non supply of information with affidavit to Returning Officer till scrutiny of nomination appear – Amounts to non compliance of S.8 of the Act – Rejection of nomination papers – Not improper. (Hari Krishna Lal Vs Babu Lal Marandi) AIR 2002 Jharkhand 142

Representation of the People Act, 1950, S.100 – Nomination papers – Rejection – Nomination filed as candidate of particular party – Said party found to be unrecognized and unregistered – Nomination could not be treated as independent candidate as his name was not proposed by ten proposers – Rejection of nomination paper proper – Grant of permission on next day by Returning Officer to petitioner to affix signatures of ten proposers on nomination paper – Illegal, being without jurisdiction. (Altaf Hussain Vs Hamid Hussain) AIR 2002 P&H 29

Representation of the People Act, 1950, Ss.123(6), 77 – Corrupt practice – Incurring excessive expenditure – Mere non disclosure of expenditure not a corrupt practice – Expenditure by third person who is not authorised election agent is not corrupt practice – Facts showing authorisation or reimbursement by candidate or his election agent must be pleaded. (Kamalnath Vs Sudesh Verma) AIR 2002 SC 599

Requisitioning and Acquisition of Immovable Property Act, 1952, S.8(1)(a) and 8(3) – Compensation – Once the owners of land agreed to a price, it is presumed to be the best offer which he could get – They have no right to invoke S.28A of the Land Acquisition Act, 1894 – Court cannot read any thing in a statute which is not readable in it from its plain language. (Dayal Singh & Ors. Vs Union of India & Ors.) 2003(1) Apex Court Judgments 659 (S.C.)

Reserve Bank of India Pension Regulations, 1990 – Respondents tendered resignation in 1988 and subsequently pension regulations came into operation – Reserve Bank of India Staff Regulations 1948 (amended w.e.f 72.1992) were in operation when respondents had resigned – Pension Regulations were made for granting pension to certain categories of employees – Regulations were framed with sanction of Central Govt. and if Central Board recommended changes, sanction of Central Govt. was mandatory – High Court was in error in equating case of resignation to voluntary retirement – Impugned judgment set aside. (Reserve Bank of India & Anr. Vs Cecil Dennis Solomon & Anr.) 2004(1) Apex Court Judgments 433 (S.C.)

Retiral benefits – Cause of action is recurring – Limitation Act is not applicable to such cases. (Pawan Bhargava Vs State of Rajasthan) 2003(1) Civil Court Cases 71 (Rajasthan) 

Sale deed – By illiterate person – Must be proved that the same was read over to him – Sale deed cannot be said to be proved in accordance with law when it comes in his statement that sale deed bears his thumb mark. (Transfer of Property Act, 1882, S.54). (Santoo & Ors. Vs Jagannath & Ors.) 2004(2) Civil Court Cases 04 (Allahabad)

Sale deed – Consideration – Lack of – A stranger to the sale deed cannot challenge that sale is without consideration or is a paper transaction. (State of Punjab  Vs Gurmel Singh) 2003(2) Civil Court Cases 115 (P&H) 

Sale deed – Consideration – Price already paid as per recital in the sale deed – No denial in written statement – Defendant himself not come into the witness box to deny the receipt of consideration – Sale deed duly proved – When execution of document is proved then onus shifts to the other party to prove lack of consideration – Moreover payment of price is not essential for completion of sale, if intention is to pass title on registration – Title immediately passes on execution of sale deed. (State of Punjab  Vs Gurmel Singh) 2003(2) Civil Court Cases 115 (P&H) 

Sale deed – Executed by power of attorney holder – Sale consideration not remitted by power of attorney to the principal – Not a basis to conclude that no sale took place and sale deed was a paper transaction. (Chanan Kaur alias Channo Vs Pakhar Singh & Ors.) 2004(2) Civil Court Cases 225 (P&H)

Sale deed – Proof – To be proved by examining one of the attesting witness and by producing the record from the office of Sub Registrar – Certified copy is not per se admissible. (Gulzar Singh Vs Sulakhan Singh & Ors.) 2004(3) Civil Court Cases 340 (P&H)

Sale deed – Sale by power of attorney holder – General power of attorney – Power to lease, mortgage and sale specifically given – Sale is valid. (Harmeet Kaur Vs Partap Kaur) 2003(1) Civil Court Cases 161 (P&H) 

Sale deed – Sale deed registered as per orders of Court as after execution of sale deed owner refused to get the sale deed registered and Court in a suit filed u/s 77 Registration Act ordered registration of sale deed – Held, since unregistered sale deed was registered by virtue of orders of Court as such it confers valid title on purchaser. (Registration Act, 1908, S.77). (Harmeet Kaur Vs Partap Kaur) 2003(1) Civil Court Cases 161 (P&H) 

Sale deed – Cancellation – Opinion of handwriting expert that there is dissimilarity in disputed and specimen thumb impression – Sale deed got executed by some imposter – Sale deed is void and not binding on petitioner. (Badri Prasad Vs Babu Lal) AIR 2003 Allahabad 206

Sale of Goods Act, 1930, S.26 – Suit for recovery of amount of goods – Payment made but goods not supplied – Title of goods cannot be said to have passed into hands of plaintiff – He is not responsible for loss caused to goods – Plaintiff is entitled to repayment of  amount paid by him. (C.Seetharamaiah Vs M/s Atmuri Dhananjaya Rao & Co.) AIR 2002 A.P. 381

Sale of Goods Act, 1930, Ss.42 & 55 – Supply of goods – Suit for price – Four IP sets burnt after installation – No evidence to show that four sets which were burnt after installation was on account of manufacturing defect – To establish such a case, it was necessary for defendant to have referred the machineries to the experts for their opinion –  Defendant is liable to pay the suit claim. (The City Municipal Corporation, Kolar Vs S.A.Lateef & Company, V.Kota, Andhra Pradesh) 2005(1) Civil Court Cases 98 (Karnataka)

Sale of Goods Act, 1930, Ss.64A, 61 – Goods supply – Price agreed inclusive of all taxes except sales tax – Supplier distributor of goods and not manufacturer – Increase in excise duty after placement of order – Supplier cannot demand higher rate than agreed price on basis of increase in excise duty. (The Pravara Sahakari Sakhar Karkahana Ltd. Vs The Express Industrial Corporation) AIR 2002 Bombay 185

Sapurdari – Truck purchased by taking loan from financier – Owner selling truck without repaying entire loan – Truck taken in custody by police – Held, financier is entitled to interim custody – No matter name of owner was entered in Registration Book – He does not become absolute owner. (Satpalsingh Ajitsingh Bajaj Vs Kalyani Trading Co.) 2002(1) Criminal Court Cases 504 (Guj.)

Sapurdari – Truck purchased by taking loan from financier – Truck seized by police – Financier is entitled to interim custody, if entire loan amount is not repaid. (Satpalsingh Ajitsingh Bajaj Vs Kalyani Trading Co.) 2002(1) Criminal Court Cases 504 (Guj.)

Sapurdari – Currency notes – Release on Sapurdari – Bank guarantee taken – Photostat also taken and accused persons made statements that they would not challenge the identity thereof – Condition cannot be imposed that original currency notes would be produced in Court as and when required – Petitioner at liberty to utilize the notes. (M/s.Cox and King Forex Services Vs State & Ors.) 2002(2) Criminal Court Cases 358(1) (Delhi) 

Savings certificate – Death of holder – Nominee is entitled to it under law and he retains amount for benefit of persons who are entitled to it under law of succession – Nominee to receive payment upon furnishing an undertaking and amount so received shall be payable to legal heirs after deduction of amounts of debts or other demands lawfully paid or discharged by nominee in due course of administration. (Smt.Manorma Devi Vs Sukarama Bhardwaj) AIR 2002 H.P. 48

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Criminal Procedure Code, 1973, Section 193 – Cognizance – No specific provision regarding taking of cognizance under 1989 Act – Provisions of Cr.P.C. are applicable. (Moly & Anr. Vs.  State of Kerala ) 2004(2) Criminal Court Cases 514 (S.C.)

Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, S.3, Criminal Procedure Code, 1973, S.438 – Offence u/s 3 ST/SC Act – Offence not taking in public view – Complainant not stating that he belongs to Scheduled Caste and the accused was aware of this – Anticipatory bail allowed. (Jagir Chand Vs State of Punjab) 2002(3) Criminal Court Cases 680 (P&H)

Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, S.3 & Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995, R.7 – Case registered under the Act and offence under Ss.452, 294, 323, 427, 354, 506/34 IPC – Investigation by police office of rank of DSP is mandatory – Inspector of Police has no jurisdiction to investigate into the matter – Meanwhile DSP Crime Branch entrusted with investigation – Held, investigation made by OIC quashed and DSP to proceed with same till investigation was brought to its logical end. (Tutu @ Bharatendu Bal Vs State of Orissa) 2003(1) Criminal Court Cases 628 (Orissa) 

Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, S.3 – Offence  under S.3 of SC and ST Act – When case is not committed to Court of Sessions Judge-cum-Special Judge, Court cannot take cognizance. (Bahu @ Sushil Basantia Vs State of Orissa) 2003(2) Criminal Court Cases 298 (Orissa) 

Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, S.3(1) – Change of religion – Merely by change of religion a person does not cease to be a member of Scheduled tribe – A person who has embraced another religion will remain member of Scheduled tribe if he is still suffering from social disability and also following the customs and traditions of the community, to which he earlier belonged. (State of Kerala & Anr. Vs Chandramohanan) 2004(2) Criminal Court Cases 167 (S.C.)

Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, S.3(1)(10) – Cognizance of offence under SC & ST Act cannot be taken by the Special Court without being committed to that court by the Magistrate and a complaint or charge-sheet cannot be straightaway filed in the Special Court. (Girraj Singh & Ors. Vs State of M.P.) 2005(1) Criminal Court Cases 209(M.P.)

Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, S.3(1)(v) – Offence under the Act investigated by Sub Inspector Police – Deputy Superintendent of Police verified investigation and filed charge sheet – Since D.S.P. did not investigate the case, trial was vitiated – Conviction not sustainable. (Ambati Vykunta Rao Vs State of A.P.) 2004(1) Criminal Court Cases 564 (A.P.)

Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, S.3(1)(v) – Scope – It is not only wrongful dispossession of a member of a Scheduled Castes or Scheduled Tribes from his land or premises is punishable but also if somebody interferes with enjoyment of his rights over any land, premises or water the same is also made punishable under S.2(1)(v). (Yashwant  Vs State of Maharashtra) 2003(2) Criminal Court Cases 655 (Bom.) 

Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, S.3(1)(xi), Indian Penal Code, 1860, Ss.354 and 325 – Complainant and her companion molested, as they were women, but not because of the fact that they were women belonging to Scheduled Castes – Offence under Scheduled Castes Act not attracted. (Karan Singh & Anr. Vs State of Haryana) 2004(4) Criminal Court Cases 516 (P&H)

Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, S.3(1)(x) – Abusing a member of Scheduled Caste or Schedule Tribe on telephone on the ground of caste – Not an offence. (Potluri Poorna Chandra Prabhakara Rao Vs State of A.P. rep. by its Public Prosecutor) 2002(1) Criminal Court Cases 150 (A.P.)

Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, S.3(1)(x) – Allegation against accused that he insulted the complainant in name of his caste – Accused having no knowledge that complainant belonged to Scheduled Caste – Held, accused is not guilty of offence under S.3(1)(x). (State of Karnataka Vs Irappa Dhareppa Hosamani) 2002(1) Criminal Court Cases 410 (Kant.)

Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, S.3(1)(x) – Cognizance of offence – Special Court (Court of Session) does not get jurisdiction to try the offence under the Act without committal by Magistrate. (Potluri Poorna Chandra Prabhakara Rao Vs State of A.P. rep. by its Public Prosecutor) 2002(1) Criminal Court Cases 150 (A.P.)

Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, S.3(1)(x) – Humiliating words uttered inside a room not within the public view – Offence not made out – Accused discharged. (Nathu Lal Jevariya & Ors. Vs State of Rajasthan) 2002(3) Criminal Court Cases 525 (Rajasthan) 

Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, S.3(1)(x) – Ingredients of the offence are : (a) A person making the alleged derogatory utterance must know that the person whom he was intentionally insulting, intimidating with intent to humiliate him was a member of SC/ST; (b) Such intentional insult, intimidation or humiliation must be directed against and made to a member of SC/ST and for being member of SC/ST; (c) The utterance must be made at any place within “public view”. (D.P.Vats Vs State) 2003(1) Criminal Court Cases 33 (Delhi) 

Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, S.3(1)(x) – Mere mention of caste of the person is not sufficient to attract the provision – Intention of humiliating or insulting a member of a scheduled caste is necessary. (Mohammed Kutty   Vs State of Kerala  ) 2004(2) Criminal Court Cases 52 (Kerala)

Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, S.3(1)(x) – Necessary ingredients of the offence are – (i) the act attributed should amount intentional insult or intimidation; (ii) it should be done with intent to humiliate; (iii) it should be directed against a member of a Scheduled Caste or a Scheduled Tribe; (iv) the act attributed should have taken place in public view. (Pishora Singh Vs State of Punjab) 2002(2) Criminal Court Cases 153 (P&H)

Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, S.3(1)(x) – Offence committed by person belonging to Scheduled Caste and Scheduled Tribe – Cannot be prosecuted and punished. (Kanubhai M.Parmar Vs State of Gujarat)   2002(1) Criminal Court Cases 136 (Gujarat)

Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, S.3(1)(x) – To attract S.3 it is necessary that occurrence should be in a place where public could view the incident – It is not the requirement of law that incident should have taken place in a public place where public could view the incident. (Surendran Vs Ramachandran) 2004(3) Criminal Court Cases 524 (Kerala)

Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, S.3(1)(x) – Using obscene words (Prostitute) against a person and not with reference to the caste – No offence u/s 3(1)(x) is made out. (State of Kerala Vs Hassan) 2002(3) Criminal Court Cases 691 (Kerala) 

Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, S.3(1)(x) – Uttering of words at a public gathering, “I will kill you sweepers and cobblers” – Held, no offence is made out – Utterance is in generalised terms and it is not directed against any particular member of SC/ST to attract the offence – FIR quashed. (D.P.Vats Vs State) 2003(1) Criminal Court Cases 33 (Delhi) 

Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, S.3(2)(b) – Gang rape – Girl below 16 years belonging to Scheduled Caste – Conviction u/s 3(2)(v) of the Act cannot be sustained unless prosecutrix was raped knowingly that she was a Scheduled Caste girl – No such evidence on record – Conviction u/s 3(2)(v) set aside. (Dhruvendra Singh & Ors. Vs State of Rajasthan) 2002(2) Criminal Court Cases 307 (Raj.) 

Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, S.3(2)(v) – Intercourse with consent and not on ground that prosecutrix belongs to Scheduled Caste – Conviction of accused u/s 3(2)(v) set aside. (Hanmant Ramhari Ghodake Vs State of Maharashtra) 2004(2) Criminal Court Cases 309 (Bombay)

Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, S.3(2)(v) – Rape of minor scheduled caste girl – No evidence to show that offence of rape was committed because she was a member of scheduled caste – Conviction under SC & ST Act cannot be sustained. (Kalasika Prashanta Kumar Vs State of A.P.) 2004(3) Criminal Court Cases 765 (A.P.)

Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, S.3(i)(x) – Complaint for an offence under the Act directly filed before Special Court set up under the Act – Complaint and charge sheet quashed – Special Court has no original jurisdiction to try an offence under the Act without having been committed to it by Magistrate under S.193 Cr.P.C. (Criminal Procedure Code, 1973, S.193). (Ujjagar Singh & Ors. Vs State of Haryana & Anr.) 2003(1) Criminal Court Cases 406 (P&H)

Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Ss.3 & 4 – Preventing complaint to enter into temple to perform Puja – None of the clauses of S.3 is attracted – As there was no public servant attached with the case as such provision of S.4 is also not applicable – Taking cognizance under Ss.3/4 of the Act quashed. (Harilal Mahto & Ors. Vs State) 2003(1) Criminal Court Cases 160 (Jharkhand) 

Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Ss.3(1)(xi), Criminal Procedure Code, 1973, S.154 – FIR – Delay of two days – No ground of suspicion – It is but natural in a traditional bound society to avoid embarrassment which is inevitable when reputation of a woman is concerned – It would however be unusual in a conservative society that a woman would be used as a pawn to wreck vengeance. (Vidyadharan Vs State of Kerala) 2004(1) Criminal Court Cases 516 (S.C.)

Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Ss.3(1)(xi), Indian Penal Code, 1860, S.354 – Difference between the two provisions is the caste or the tribe to which the victim belongs – If she belongs to Scheduled Caste or Scheduled Tribe, S.3(1)(xi) applies – The other difference is that in S.3(1)(xi) dishonour of such victim is also made an offence. (Vidyadharan Vs State of Kerala) 2004(1) Criminal Court Cases 516 (S.C.)

Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Ss.3(1)(xi) and 14, Criminal Procedure Code, 1973, Ss.193 and 209 – Special Judge – Sessions Judge specified as Special Judge – Sessions Judge cannot take cognizance of offence as Court of original jurisdiction – Case has to be committed by a Magistrate. (Vidyadharan Vs State of Kerala) 2004(1) Criminal Court Cases 516 (S.C.)

Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Ss.3(1)(x), 4 – Accused appointed by Railway Board for taking care of welfare of members of Scheduled Caste and Scheduled Tribe – No material to show that she was appointed by provisions of the Act – Neglect of duty by the Officer – No offence under S.4 is made out. (Alka A.Misra Vs J.P.Shoke) 2003(2) Criminal Court Cases 491 (Bombay) 

Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Ss.3(1)(x) – Accused insulted a member of Scheduled Caste in his office – No material to show that said office was visible to public at large and was exposed to public view – Offence u/s 3 is not made out. (Alka A.Misra Vs J.P.Shoke) 2003(2) Criminal Court Cases 491 (Bombay) 

Schedule Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989, S.9, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995, R.7, Indian Penal Code, 1860, S.376 IPC – Offence under SC and ST Act and rape – Investigation by police officer other than designated police officer – Cognizance of offence u/s 3 of SC and ST Act cannot be taken – However for offence u/s 376 IPC charge-sheet to that extent cannot be interfered with. (Bahu @ Sushil Basantia Vs State of Orissa) 2003(2) Criminal Court Cases 298 (Orissa) 

Schedule Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Ss.18 & 3, Cr.P.C.: S.438 – Offence u/s 3 – Anticipatory bail – When accused called the complainant “Kutya Chuhria” he was not aware that complainant belonged to Balmiki Caste – Prima facie the essential ingredients of the offence are missing and for that reason bar of S.18 of the Act does not apply – Bail allowed. (Pishora Singh Vs State of Punjab) 2002(2) Criminal Court Cases 153 (P&H)

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995, R.7 – Investigation – By a Police official who is below the rank of D.S.P. – Illegal being contrary to rule. (Potluri Poorna Chandra Prabhakara Rao Vs State of A.P. rep. by its Public Prosecutor) 2002(1) Criminal Court Cases 150 (A.P.)

Seeds Act, 1966, Ss.6, 7, 15, 16 and 19(i) – Sub standard seeds – Prosecution – Institution of prosecution after expiry of shelf-life of seeds, which is nine months – Accused deprived of his right to get sample retested at Central Seed Laboratory – Proceedings belatedly instituted quashed. (S.A.Jayanarayana Vs State of Karnataka) 2003(3) Criminal Court Cases 95 (Karnataka) 

Seeds Act, 1966, Ss.9, 15 and 16 – Seeds – Certificate by certification agency – It protects vendor from prosecution for selling sub standard seeds so long as certificate is valid and operative – Seizure of seed samples within certification period and institution of prosecution after expiry of period – Illegal and liable to be quashed. (S.A.Jayanarayana Vs State of Karnataka) 2003(3) Criminal Court Cases 95 (Karnataka) 

Seeds Rules, 1968, S.23A (2) – Failure of crop due to defective quality of seeds – Seeds Inspector can launch proceedings after detailed investigation by himself – Police authorities cannot investigate such cases. (Korra Srinivas Rao  Vs State of Maharashtra) 2003(1) Criminal Court Cases 633 (Bombay) 

Service – 40 vacancies – Public Service Commission recommended a list of selected candidates – Petitioner placed at Sr.No.52 – Writ petition filed on ground that vacancies arising on account of selected candidates not joining should have been filled up and that having been not done appointments made subsequently were illegal – Defence version that there was no waiting list and as such vacancies were carried forward – Held, if employer fixes a cut off position same is not to be lightly tinkered with unless it was totally irrational or tainted with mala fides – No merit in appeal. (Ashwani Kumar Singh Vs U.P.Public Service Commission & Ors.) 2003(2) Apex Court Judgments 123 (S.C.)

Service – A person whose name finds place in a select panel has no vested right to get appointed to the post in spite of vacancies existing. (Ludhiana Central Co-operative Bank Ltd. Vs Amrik Singh & Ors.) 2003(2) Apex Court Judgments 317 (S.C.)

Service – Absence from duty without sanctioned leave for a very long period – Unauthorized absence is indicative of negligence and lack of interest in employer’s work which amounts to misconduct – Order passed for treating absence as leave without pay after passing an order of termination would be for maintaining correct record of service – In view of the Governing Standing Orders unauthorized leave can be treated as misconduct. (Delhi Road Transport Authority (Conditions of Appointment and Service) Regulations, 1952). (Delhi Transport Corporation Vs Sardar Singh) 2005(1) Apex Court Judgments 61 (S.C.)

Service – Accepting illegal gratification – Acquittal by Criminal Court – Departmental enquiry – Same charges – Departmental enquiry cannot be continued when acquittal is honourable acquittal – Where acquittal is on technical grounds like omission to obtain requisite sanction for prosecution, limitation, failure of prosecution to prove its case beyond reasonable doubt on account of witnesses turning hostile etc. held, is not honourable acquittal – Such acquittal is no bar to continue or initiate departmental proceedings in regard to same charge. (Mehiboobsab Vs Upalokayukta, Bangalore) 2003(1) Civil Court Cases 147 (Karnataka) 

Service – Accepting illegal gratification – Departmental enquiry – Same charges – If I.O. files a report that there is no case to place the accused on trial and Criminal Court accepts the report, then it is not a bar for initiating disciplinary proceedings. (Mehiboobsab Vs Upalokayukta, Bangalore) 2003(1) Civil Court Cases 147 (Karnataka) 

Service – Appointment – Criteria for selection – Cannot be altered in middle of selection process. (Maharashtra State Road Transport Corporation & Ors. Vs Rajendra Bhimrao Mandve & Ors.) AIR 2002 S.C. 224

Service – Canteen setup by contractor – Facts and agreement between contractor and establishment show that control over appointment, confirmation or dismissal from service of workmen was that of contractor and not establishment – Held, workmen are employees of contractor and not regular workmen of establishment. (Hari Shankar Sarma Vs M/s Artificial Limbs Manufacturing Corp.) AIR 2002 S.C. 226

Service – Caste certificate – Termination of service for not belonging to Scheduled Tribe – Employee appointed in 1994 and regularised in 1996 – After about 7 years of service and after about five years of regularisation proceedings initiated against employee – Held, as the proceedings not initiated within ‘reasonable period’, the action taken and order terminating services quashed. (Anil Vasantrao Shirpurkar Vs State of Maharashtra) 2003(1) Civil Court Cases 51 (Bom.) 

Service – Casual workers – Regularisation of service – Absorption as per scheme against available vacant posts – Subsequent absorption of different casual workers under different scheme after six years in higher grade as those posts were vacant at that time – Claim to said higher posts as per seniority by casual workers who were regularised first – Not tenable as they were already absorbed. (Anis Parvez Vs The Director General)  AIR 2002 S.C. 2368

Service – Central Civil Service (Pension) Rules, 1972, R.37 – Retirement benefits – Appellant commissioned in Indian Army on 24.4.1996 – On 31.11.1975 he joined CISF as Inspector (Executive) – Appellant applied for the post of Security Officer in Punjab National Bank in July, 1981 and he joined bank service in the year 1982 – Presidential sanction to his permanent absorption w.e.f. 9.2.1984 in service of Bank conveyed to him by letter dated 21.2.1990 – Claim for pro rata pension from date of his permanent absorption in Bank service – Held, appellant is entitled to pro-rata retirement benefits only from 24.4.1996, date of completion of his qualifying service. (Suhas Sandilya Vs Central Industrial Security Force & Ors.) 2005(1) Apex Court Judgments 255 (S.C.)

Service – Charge of misconduct and irregularity – Disciplinary enquiry – Some charges proved, some unproved, some partly proved – Competent authority disagreeing with partly proved charges and taking it fully proved and dismissed employee from service – High Court set it aside as no opportunity was given to the employee by the disciplinary authority in regard to partly proved charges of enquiry officer which were not agreed to by disciplinary authority – Decision of High Court, upheld.  (State Bank of India & Ors. Vs K.P.Narayanan Kutty) 2003(1) Apex Court Judgments 465 (S.C.)

Service – Compassionate appointment – Retiral benefits are to be taken into consideration while dealing with prayer for compassionate appointment. (Punjab National Bank & Ors. Vs Ashwini Kumar Tanjea) 2004(2) Apex Court Judgments 299 (S.C.) : 2004(3) Civil Court Cases 516 (S.C.)

Service – Compassionate appointment – Ward was minor at the time of death of his father – Application for compassionate appointment made after 10 years of death of father – Appointment on compassionate ground cannot be claimed as a matter of right – In all such appointments there should not be any delay – Fact that ward was a minor at the time of death of his father is not a ground unless scheme itself envisages that as and when such minor became major he could be appointed without any time consciousness or limit – Order of High Court as to appointment on compassionate ground set aside. (National Hydroelectric Power Corporation & Anr. Vs Nanak Chand & Anr.) 2005(1) Apex Court Judgments 459 (S.C.)

Service – Compulsory retirement – Appellant supplied a document containing information regarding the absentee details of a co-worker – Document neither confidential or privileged information nor appellant was under any official communication prohibiting him to supply the same – It was a right of employee concerned to obtain the information from the office – Furnishing of such information has not done or caused any damage to the office except causing some inconvenience – Impugned order set aside – Appellant held entitled to all monetary, retiral and consequential benefits. (Pritam Singh Vs Union of India & Ors.) 2004(2) Apex Court Judgments 486 (S.C.)

Service – Compulsory retirement – Judicial scrutiny of any order imposing premature compulsory retirement is permissible if the order is either arbitrary or malafide or if it is based on no evidence. (Pritam Singh Vs Union of India & Ors.) 2004(2) Apex Court Judgments 486 (S.C.)

Service – Criminal case and departmental proceedings – Proceedings in a criminal case and departmental proceedings can go on simultaneously, except in some cases where departmental proceedings and criminal cases are based on same set of facts and evidence in both the proceedings is common. (Hindustan Petroleum Corporation Ltd. & Ors. Vs Sarvesh Berry) 2005(1) Apex Court Judgments 465 (S.C.)

Service – Date of birth – Correction – Interim relief or continuation in service – Court or the Tribunal must be slow in granting an interim relief or continuation in service, unless prima facie evidence of unimpeachable character is produced as public servant if succeeds can be compensated but if he fails he would have enjoyed undeserved benefit of extended service. (State of U.P.& Ors. Vs Smt.Gulaichi) 2003(2) Apex Court Judgments 177 (S.C.)

Service – Date of birth – Correction – Unless a clear case on the basis of materials which is conclusive in nature is made out and that too within a reasonable time as provided in the rules governing the service, the Court or the Tribunal should not issue a direction or make a declaration on the basis of materials which make such claim only plausible – If for filing such type of application there is no rule or order then the application must be filed within a reasonable time – Applicant has to produce irrefutable proof relating to his date of birth – Onus to prove about wrong recording of his date of birth in service book is on the applicant. (State of U.P.& Ors. Vs Smt.Gulaichi) 2003(2) Apex Court Judgments 177 (S.C.)

Service – Departmental enquiry – Dismissal from service – Misconduct alleged to be first misconduct – Not a ground to condone the misconduct. (Bharat Heavy Electricals Ltd. Vs M.Chandrasekhar Reddy & Ors.) 2005(1) Apex Court Judgments 257 (S.C.)

Service – Departmental enquiry – Dismissal from service – Without a finding that either the fact of loss of confidence or the quantum of punishment is so harsh as to be vindictive or shockingly disproportionate, interference in the award of punishment is not permissible. (Bharat Heavy Electricals Ltd. Vs M.Chandrasekhar Reddy & Ors.) 2005(1) Apex Court Judgments 257 (S.C.)

Service – Departmental enquiry – In first, punishment of reducing pay to minimum for 4 years and in second, termination from service awarded on the basis of conviction and sentence passed u/s 304-A IPC which was permissible under the rules – High Court in second appeal set it aside invoking double jeopardy – Held, High Court was not right in equating departmental enquiries on different grounds to a prosecution in criminal case – Two orders passed against the employee are on different grounds and are on different cause of actions. (State of Haryana Vs Balwant Singh) 2003(2) Apex Court Judgments 57 (S.C.)

Service – Departmental proceedings – Stay during pendency of criminal case – Stay of departmental enquiry has to be determined in each case taking into consideration all the facts and circumstances of the case – Stay of departmental proceedings cannot be, and should not be, a matter of course. (Kendriya Vidyalaya Sangathan & Ors. Vs T.Srinivas) 2005(1) Apex Court Judgments 181 (S.C.)

Service – Departmental proceedings – Stay during pendency of criminal proceedings – Departmental proceedings and criminal case can go on simultaneously except where departmental proceedings and criminal case are based on same set of facts and evidence in both the proceedings is common and that the departmental enquiry will seriously prejudice the delinquent in his defence at the trial in a criminal case. (State Bank of India & Ors. Vs R.B.Sharma) 2005(1) Apex Court Judgments 77 (S.C.)

Service – Dereservation – Once dereservation is made  vacancies become available for being filled up by general category candidates and employer is not required to reexamine the question of availability of the Scheduled Tribe candidates for appointment on dereserved vacancies. (Ramrao & Ors. Vs All India Backward Class Bank Employees Welfare Association & Ors.) 2004(1) Apex Court Judgments 311 (S.C.)

Service – Disability during service – If not found suitable for post he is holding he should be shifted to some other post with same pay-scale and service benefits – If it is not possible to adjust him against any post, he could be kept on a supernumerary post until a suitable post was available or he attains the age of superannuation, whichever is earlier. (Kunal Singh Vs Union of India & Anr.) 2003(1) Apex Court Judgments 418 (S.C.)

Service – Disciplinary authority – Penalty – Court will not substitute its own conclusion – However, if punishment imposed by disciplinary authority or the appellate authority shocks the conscience of the Court, then Court will mould the relief either by directing disciplinary/appropriate authority to reconsider the penalty imposed or in rare cases impose appropriate punishment with cogent reasons in support thereof. (Dev Singh Vs Punjab Tourism Development Corporation Ltd. & Anr.) 2003(2) Apex Court Judgments 495 (S.C.)

Service – Disciplinary authority – Punishment imposed if disproportionate to proved misconduct then Court will interfere in such a case. (Dev Singh Vs Punjab Tourism Development Corporation Ltd. & Anr.) 2003(2) Apex Court Judgments 495 (S.C.)

Service – Disciplinary enquiry – Approach is different than that in a criminal proceeding – In disciplinary proceedings the preliminary question is whether the employee is guilty of such conduct as would merit action against him whereas in criminal proceedings the question is whether the offences registered against him are established and if established what sentence should be imposed upon him – Standard of proof, mode of enquiry and rules governing the enquiry and trial are conceptually different. (Lalit Popli Vs Canara Bank & Ors.) 2003(1) Apex Court Judgments 383 (S.C.)

Service – Disciplinary enquiry – Technical rules of evidence have no application – Doctrine of “Proof beyond doubt” has no application – Preponderance of probabilities and some material on record are necessary to arrive at the conclusion whether or not the delinquent has committed misconduct. (Lalit Popli Vs Canara Bank & Ors.) 2003(1) Apex Court Judgments 383 (S.C.)

Service – Dismissal from service – Bank official – Departmental proceedings reveal several acts of misconduct unbecoming of a bank official – Detailed charge sheet served and employee submitted written reply and also participated in the proceedings – Inquiry Officer holding charges amply proved and recommended dismissal from service which was accepted by the Disciplinary Authority – Division Bench of High Court  holding that order directing dismissal from service is in violation of principles of natural justice – Proved charges clearly establish that the employee failed to discharge his duties with utmost integrity, honesty, devotion and diligence and his acts were prejudicial to the interest of the bank – Held, judgment of High Court is not sustainable – Order of dismissal from service does not suffer from any infirmity. (Canara Bank Vs V.K.Awasthy) 2005(1) Apex Court Judgments 611 (S.C.)

Service – Dismissal from service – Enquiry Officer found appellants not guilty of charge – Disciplinary authority differed with finding of Enquiry Officer and copy of tentative decision furnished to appellants for their explanation – Explanation given by appellants not accepted and they dismissed from service – Held, cogent and convincing reasons were given as to why report of Enquiry Officer not accepted  – Impugned order does not suffer illegality for not giving an opportunity of hearing. (J.A.Naiksatam Vs Prothonotary & Senior Master, High Court of Bombay & Ors.) 2005(1) Apex Court Judgments 380 (S.C.)

Service – Domestic enquiry – Principles of Evidence Act have no application in a domestic enquiry – However, principle of natural justice are required to be complied with in a domestic enquiry and the same cannot be stretched too far nor can be applied in a vacuum. (Cholan Roadways Ltd. Vs G.Thirugnansambandam) 2005(1) Apex Court Judgments 418 (S.C.)

Service – Entitlement of service and retiral benefits – Dispute as to – Fixing of back wages – Claim of Rs.1,79,484/- and interest at Rs.24,993/- out of which Rs.65,000/- and interest Rs.12320/- paid – Remainder need not to be paid – Ends of justice would be met by payment of a further sum of Rs.35,000/- – Appeal allowed in part.  (Ram Ashrey Singh & Anr. Vs Ram Bux Singh & Ors.) 2003(1) Apex Court Judgments 468 (S.C.)

Service – Even if number of vacancies are notified for appointment and even if adequate number of candidates are found fit the successful candidates do not acquire any indefeasible right to be appointed against existing vacancies – Ordinarily such notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post – State is under no legal duty to fill up all or any of the vacancies unless the relevant recruitment rules indicate. (Bihar State Electricity Board Vs Suresh Prasad & Ors.) 2004(2) Apex Court Judgments 197 (S.C.)

Service – Family pension – Death in 1969 – Illiterate widow applied for family pension in 1991 – Held, family pension is a right to life – If widow applied for it late due to ignorance, she cannot be denied arrears on ground of delay – Family pension allowed w.e.f. 1969. (S.K.Mastan Bee Vs The General Manager, South Central Railway & Anr.) 2003(1) Apex Court Judgments 92 (S.C.)

Service – Judicial service – Eligibility criteria – Three years practice at Bar – Petitioner working as Legal Assistant in Education Department – Representing employer in a Court or Tribunal does not amount to practice at Bar and as such prescribed criteria not satisfied. (Sunil Kumar Goyal Vs Rajasthan Public Service Commission) 2003(2) Apex Court Judgments 134 (S.C.)

Service – Mere sending of name by employment exchange does not confer any right on candidate to seek a relief from Court to the post. (State of Orissa Vs Bhikari Charan Khuntia & Ors.) 2003(2) Apex Court Judgments 420 (S.C.)

Service – Misconduct – It is not compulsory for employer to hold an enquiry and punish his employee if employee peacefully and voluntarily leaves employment. (Laffans India Pvt. Ltd. Vs Pancham Singh Rawat) 2003(2) Civil Court Cases 224 (Bombay) 

Service – Misconduct – Proved to be one of dishonesty as workman committed the misconduct by not issuing tickets to passengers – Quantum of loss is immaterial as it is the loss of confidence that matters – Order of dismissal passed by Tribunal, upheld by single Judge of High Court restored. (The Regional Manager, Rajasthan State Road Transport Corporation Vs Sohan Lal etc.) 2005(1) Apex Court Judgments 348 (S.C.)

Service – Misconduct – Punishment by disciplinary authority – High Court or Tribunal should not disturb it unless punishment is grossly or shockingly disproportionate after examining  all the relevant factors including nature of charges proved against, the past conduct, penalty imposed earlier, the nature of duties assigned having due regard to their sensitiveness, exactness expected of and discipline required to be maintained, and the department/establishment in which the concerned delinquent person works. (Director General R.P.F. & Ors. Vs Ch.Sai Babu) 2003(2) Apex Court Judgments 175 (S.C.)

Service – Misconduct – Punishment by disciplinary authority – When shockingly disproportionate High Court or Tribunal may remit the case to disciplinary authority for reconsideration on the quantum of punishment. (Director General R.P.F. & Ors. Vs Ch.Sai Babu) 2003(2) Apex Court Judgments 175 (S.C.)

Service – Misconduct – Quantum of sentence – It is not the normal jurisdiction of the superior courts to interfere with the quantum of sentence unless the said sentence is wholly disproportionate to the misconduct proved. (The Regional Manager, Rajasthan State Road Transport Corporation Vs Sohan Lal etc.) 2005(1) Apex Court Judgments 348 (S.C.)

Service – Misplacement of a file without any ulterior motive – Punishment of dismissal from service – It is too harsh a punishment which is totally disproportionate to the misconduct alleged – Punishment modified to that of withholding of one increment including stoppage at the efficiency bar. (Dev Singh Vs Punjab Tourism Development Corporation Ltd. & Anr.) 2003(2) Apex Court Judgments 495 (S.C.)

Service – No person illegally appointed or appointed without following the procedure prescribed under the law, is entitled to claim that he should be continued in service. (Pankaj Gupta & Ors. etc Vs State of Jammu & Kashmir & Ors.) 2005(1) Apex Court Judgments 306 (S.C.)

Service – On reinstatement there is no automatic entitlement to full back wages. (Ram Ashrey Singh & Anr. Vs Ram Bux Singh & Ors.) 2003(1) Apex Court Judgments 468 (S.C.)

Service – Possession of assets disproportionate to known sources of income – Criminal case and departmental proceedings – There is no question of disclosure of defence in the departmental proceedings – Departmental proceedings cannot be stayed pending conclusion of criminal charge. (Hindustan Petroleum Corporation Ltd. & Ors. Vs Sarvesh Berry) 2005(1) Apex Court Judgments 465 (S.C.)

Service – Posts of Junior Clerks/Junior Clerk-cum-Typist – Selection Committee conducted typing test and interviews – Writ Petition filed to declare results of selections made – High Court allowing writ petition directed publication of results of selection – Managing Director of Bank without sending records relating to selections before the Board of Directors, issued a list of 55 candidates as having been selected – Selections so made not in accordance with law – Whole process perfunctory and vitiated – Order of High Court directing publication of results or to accord appointments as per such results set aside. (Ludhiana Central Co-operative Bank Ltd. Vs Amrik Singh & Ors.) 2003(2) Apex Court Judgments 317 (S.C.)

Service – Practice at Bar – Representing the employer in a Court or Tribunal does not amount to practice at the Bar. (Sunil Kumar Goyal Vs Rajasthan Public Service Commission) 2003(2) Apex Court Judgments 134 (S.C.)

Service – Probationer – Termination – Order reads “work and conduct ha snot been found to be satisfactory” – Order is not ex facie stigmatize – Fact that prior enquiry was held, doe snot make order punitive – When enquiry was held merely to assess probationer’s fitness for being continued on probation and confirmed. (Pavanendra Narayan Verma Vs Sanjay Gandhi P.G.I. Medical Sciences ) AIR 2002 S.C. 23

Service – Probationer – Termination of service as working not found to the satisfaction of employer – There being an incident of misconduct or incompetency prior to discharge from service, the same cannot be ipso facto be termed as misconduct requiring an inquiry – It may be a ground for the employer’s assessment of the workman’s efficiency and efficacy to retain him in service, unless, of course, the workman is able to satisfy that the management for reasons other than efficiency wanted to remove him from service by exercising its power of discharge. (Municipal Committee, Sirsa Vs Munshi Ram) 2005(1) Apex Court Judgments 454 (S.C.)

Service – Promotion – For the purpose of effecting promotion employer is required to fix a date for the purpose of effecting promotion –  Unless cut off date so fixed is held to be arbitrary or unreasonable, the same cannot be set aside as offending Article 14 of the Constitution of India. (Ramrao & Ors. Vs All India Backward Class Bank Employees Welfare Association & Ors.) 2004(1) Apex Court Judgments 311 (S.C.)

Service – Promotion – It is always open to the employer to specify area and parameter of weightage to be given in respect of merit and seniority separately so long as policy is not colourable exercise of power, or has the effect of violating of any statutorily scope of interference. (K.Samantaray Vs National Insurance Co.Ltd.) 2003(2) Apex Court Judgments 602 (S.C.)

Service – Promotion – No employee has right to be promoted but has a right to be considered for promotion. (State of Uttar Pradesh  Vs Jalal Uddin & Ors.) 2005(1) Apex Court Judgments 328 (S.C.)

Service – Promotion – Principles of seniority-cum-merit and merit-cum-seniority – Both are conceptually different – For the former, greater emphasis is laid in seniority, though it is not the determinative factor, while in the latter merit is the determinative factor. (State of Uttar Pradesh  Vs Jalal Uddin & Ors.) 2005(1) Apex Court Judgments 328 (S.C.)

Service – Promotion – Seniority-cum-merit vis-a-vis merit-cum-seniority – For the former, greater emphasis is laid in seniority, though it is not the determinative factor, while in the later merit is the determinative factor. (K.Samantaray Vs National Insurance Co.Ltd.) 2003(2) Apex Court Judgments 602 (S.C.)

Service – Promotion – When there is no statutory rule operating, it is for employer to stipulate the criteria for promotion and it is permissible for the employer to have their own criteria for adjudging claims on the principle of seniority-cum-merit giving primacy to merit as well, depending upon the class, category and nature of posts in the hierarchy of administration and the requirement of efficiency for such posts. (K.Samantaray Vs National Insurance Co.Ltd.) 2003(2) Apex Court Judgments 602 (S.C.)

Service – Punishment by Disciplinary Authority – Court should not interfere the same unless it was illogical or suffers from procedural impropriety or was shocking the conscience of the Court, in the sense, that it was in defiance of logic or moral standards – In exceptional and rare cases, Court may impose appropriate punishment by recording cogent reasons in support thereof – In a normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the Disciplinary Authority or the Appellate Authority to reconsider the penalty imposed. (Damoh Panna Sagar Rural Regional Bank & Anr. Vs Munna Lal Jain) 2005(1) Apex Court Judgments 439 (S.C.)

Service – Recruitment – Age criteria – It is the date appointed by service rules and when there is no such cut off date is appointed by service rules then such date shall be the date appointed for the purpose in the advertisement calling applications and if there is no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications were to be received by the competent authority. (Shankar K.Mandal & Ors. Vs State of Bihar & Ors.) 2003(2) Apex Court Judgments 40 (S.C.)

Service – Regularisation –  No regularisation is  permissible in exercise of the statutory power conferred under Article 162 of the Constitution if the appointments have been made in contravention of the statutory Rules. (A.Umarani Vs Registrar Cooperative Societies & Ors.) 2005(1) Apex Court Judgments 236 (S.C.)

Service – Regularisation – An appointment made in violation of the mandatory provisions of the Statute and in particular ignoring the minimum educational qualification and other essential qualification would be wholly illegal –  Such illegality cannot be cured by taking recourse to regularisation. (A.Umarani Vs Registrar Cooperative Societies & Ors.) 2005(1) Apex Court Judgments 236 (S.C.)

Service – Regularisation – Appointment void ab initio – Appointment without any advertisement – Payment on daily wages – Appellants began receiving monthly salary and provident fund was deducted – While making appointment Authority neither intimated Employment Exchange nor issued any advertisement – Conditions precedent for appointment of officers and servants of Authority not complied with – Appointments were void ab initio being opposed to public policy – Held, appellants cannot lay a valid claim for regularisation of their services. (Mahendra L.Jain & Ors. Vs Indore Development Authority & Ors.) 2005(1) Apex Court Judgments 24 (S.C.)

Service – Reinstatement – Back wages – Conduct of workman plays an important role as regards direction to pay back wages – Totality of circumstances are to be considered – Workman not joining duties despite having been asked to do so by registered letter as well as publication of notice in newspaper – Held, workman is not entitled to back wages. (State of Punjab Vs Jagir Singh) 2005(1) Apex Court Judgments 291 (S.C.)

Service – Reinstatement – When order of termination is quashed and set aside normal relief is reinstatement with full backwages and continuity of service – Employer objecting to it must plead and prove that concerned workman was gainfully employed during relevant period. (Kishor S.Kasare Vs S.Kumars Group of Companies) 2003(2) Civil Court Cases 350 (Bombay) 

Service – Reservation in favour of a woman for being appointed as a Principal of Government College for Girls – Reservation by State is permissible in exercise of powers conferred under Article 15(3) of the Constitution – Policy decision of reservation for females – It is  not for Court to sit in appeal against policy decision taken by State Government. (Vijay Lakshmi  Vs Punjab University & Ors. ) 2004(1) Apex Court Judgments 406 (S.C.)

Service – Resignation – Letter of resignation concluding “If the foregoing is not acceptable to you then I have no option left to render my resignation with immediate effect” – The letter cannot be construed to convey  any spontaneous intention to give up or relinquish office accompanied by any act of relinquishment – To constitute a `resignation’, it must be unconditional and with an intention to operate as such. (Dr.Prabha Atri Vs The State of U.P. & Ors.) 2003(1) Apex Court Judgments 113 (S.C.)

Service – Resignation – To constitute a resignation, it must be unconditional and with intention to operate as such – There must be an intention to relinquish a portion of the term of office accompanied by an act of relinquishment. (Dr.Prabha Atri Vs The State of U.P. & Ors.) 2003(1) Apex Court Judgments 113 (S.C.)

Service – Resignation – Withdrawl – Resignation can be withdrawn before acceptance of resignation – Withdrawl of resignation after acceptance but before communication of acceptance does not make resignation inoperative.  (North Zone Cultural Centre & Anr. Vs Vedpathi Dinesh Kumar) 2003(1) Apex Court Judgments 649 (S.C.)

Service – Retiral benefits – Not paid due to pendency of enquiry – Respondent exonerated from charges – Interest at the rate of 12% granted on retiral benefits payable from the date of retirement of the employee. (State & Ors. Vs O.P.Srivastava) 2003(3) Civil Court Cases 154 (Rajasthan) 

Service – Scheduled Tribe – Reservation – A person belonging to Scheduled Tribe in one State cannot claim benefit of reservation for Scheduled Tribe in other State where that Tribe is not notified as Scheduled Tribe. (U.P.Public Service Commission, Allahabad Vs Sanjay Kumar Singh) 2003(2) Apex Court Judgments 149 (S.C.)

Service – Seniority – In one grade or cadre does not depend on the seniority in other grade or cadre. (Kaushal Kishore Singh vs Dy.Director of Education) AIR 2002 S.C. 488

Service – Seniority – Relaxation of recruitment rules – Power can be exercised retrospectively and it can be exercised for the specific purpose of regularisation of services of temporary appointee with retrospective effect from the date of his  appointment. (Santosh Kumar Vs State of Andhra Pradesh & Ors.) 2003(2) Apex Court Judgments 47 (S.C.)

Service – State Bank of India – Appropriate Government in respect of the State Bank of India is the Central Government and the rules made by the State Government cannot be enforced against it. (Chairman, State Bank of India & Anr. Vs All Orissa State Bank Officers Association & Anr.) 2005(1) Apex Court Judgments 142 (S.C.)

Service – State created ex-cadre post beyond strength of cadre post without sanction of  Central Government – Held, appointee to such a post cannot claim pay scale of ex-cadre post. (Indian Police Service (Pay) Rules, 1954, R.9(7). (Union of India Vs R.S.Chopra & Ors.) 2003(1) Apex Court Judgments 446 (S.C.)

Service – Superannuation, voluntary retirement, compulsory retirement and resignation – Difference – Voluntary retirement and resignation involve voluntary acts on the part of the employee to leave service but both operate differently – Resignation can be tendered at any time but in case of voluntary retirement, it can only be sought for after rendering prescribed period of qualifying service – In case of resignation normally retiral benefits are denied and in case of voluntary retirement same is not denied –  In case of resignation permission or notice is not mandated whereas in case of voluntary retirement permission of the concerned employer is a requisite condition – Though resignation is a bilateral concept, and becomes effective on acceptance by the competent authority, yet the general rule can be displaced by express provisions to the contrary. (Reserve Bank of India & Anr. Vs Cecil Dennis Solomon & Anr.) 2004(1) Apex Court Judgments 433 (S.C.)

Service – Suspension – Means a temporary deprivation of office and its privileges. (Nasirkhan Nivaskhan Pathan Vs District Development Officer)   AIR 2002 Gujarat 143

Service – Termination – Cancellation of entire selection – Issuance of individual show cause notices to each selectee is not necessary. (Union  of India Vs O.Chakradhar) AIR 2002 S.C. 1119

Service – Termination – Misconduct – In order to determine whether misconduct is motive or foundation of order of termination, the test to be applied is, what was the ‘object of the enquiry’ – If an enquiry or an assessment is done with the object of finding out any misconduct on the part of the employee and for that reason his services are terminated, then it would be punitive in nature – If such an enquiry or an assessment is aimed at determining the suitability of an employee for a particular job, such termination would be termination simplicitor and not punitive in nature. (State of Punjab & Ors. Vs Balbir Singh) 2005(1) Apex Court Judgments 277 (S.C.)

Service – Termination – Without notice – Trainee technician – Terms of employment that if service not satisfactory it could be put to an end – Termination before expiry of probation period without issuance of prior notice – Does not amount to retrenchment – Is not illegal. (M/s Kalyani Sharp India Ltd. Vs Labour Court no.1, Gwalior) AIR 2002 S.C.300

Service – Termination – Work for 240 years in a year – On that basis termination if service sought to be illegal – Labour Court relying on appointment letter and order of termination holding that employee had worked for 240 days – View taken by Labour Court found to be correct – Employee entitled to reinstatement – Employee in the meantime employed in other company for certain period – Backwages therefore restricted to 75% and only for period after he ceased to be employed in other company. (M/s Tannery and Footwear Corpn. of India Vs Raj Kumar) AIR 2002 S.C. 508

Service – Termination order – Constitutes ‘industrial dispute’ within meaning S.2(k) of Industrial Disputes Act – Civil suit filed challenging order of dismissal/removal from service can be properly given by forum under Industrial Disputes Act – Jurisdiction of civil Court is impliedly barred. (Chandrakant Vs Municipal Corporation of Ahmedabad) AIR 2002 S.C. 997

Service – Trade Union – There is no Common Law right of a trade union to represent its members, whether for purposes of collective bargaining or individual grievances of members. (Chairman, State Bank of India & Anr. Vs All Orissa State Bank Officers Association & Anr.) 2005(1) Apex Court Judgments 142 (S.C.)

Service – Transfer – Not to be interfered with by Courts unless it is shown to be clearly arbitrary or visited by malafide or infraction of any prescribed norms of principles governing the transfer. (Kendriya Vidyalaya Sangathan Vs Damodar Prasad Pandey & Ors.) 2005(1) Apex Court Judgments 14 (S.C.)

Service – Transfer – Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals normally cannot interfere with such orders as a matter of routine substituting their own decision for that of the employer/management. (State of U.P. & Ors. Vs Siya Ram & Anr.) 2004(2) Apex Court Judgments 279 (S.C.)

Service – Voluntary retirement on three months notice – Employee making request for voluntary retirement with immediate effect on depositing 3 months salary in lieu of notice – Govt. accepting it – Communication is not necessary to terminate master and servant relationship – Withdrawal of voluntary retirement later on is not permissible – Government subsequently permitting withdrawal – Not permissible as such order quashed by CAT – High Court wrong in setting aside that order – Appeal allowed. (P.Lal Vs Union of India & Ors.) 2003(1) Apex Court Judgments 318 (S.C.)

Service – Voluntary retirement scheme introduced by Nationalised Banks and State Bank of India – Are contractual in nature – They are invitation to an offer – Application by an employee is an offer – It can be withdrawn before acceptance by employer Bank though the scheme makes it irrevocable. (Bank of India & Ors. Vs O.P.Swaranakar etc.) 2003(1) Apex Court Judgments 206 (S.C.)

Service – VRS – Once cut off date is fixed for the purpose of calculating the benefits under the Voluntary Retirement Scheme and thereafter an employee continues in service and if that period happens to be three months or more, that itself shall be treated as notice period and the employee shall not be entitled for notice period pay again. (Vice Chairman & Managing Director A.P.S.I.D.C. Ltd. & Anr. Vs R.Varaprasad & Ors.) 2003(2) Apex Court Judgments 87 (S.C.)

Service – Workers engaged by contractor in canteen run as statutory liability u/s 46 of Factories Act – Workers to be treated as workers of establishment. (National Thermal Power Corporation Ltd. Vs Karri Pothuraju & Ors.) 2003(2) Apex Court Judgments 303 (S.C.)

Sikh Gurdwaras Act, 1925, Ss.7(1), 8, 9, 10, 14, 16(2) & 18(1)(g), Civil Procedure Code, 1908, Ss.92, 11 – Petition that institution is a Sikh Gurdwara – In an earlier civil suit u/s 92 CPC it was held that Nirmalas are not Sikhs and that Dera was maintained for an entirely distinct sect known as Nirmalas Sadhus who cannot be regarded as Sikhs and that mere fact that at some stage there was a Guru Granth Sahib in the Dera cannot lead to any conclusion that the institution was meant for or belonged to the followers of Sikh religion – Decision rendered in a suit filed u/s 92 CPC binds not only the parties named in the suit title but all those who share common interest and are interested in the trust – Petition is barred by principle of res judicata. (Shiromani Gurdwara Parbandhak Committee Vs Mahant Harnam Singh C. (Dead), M.N.Singh & Ors.) 2004(1) Apex Court Judgments 446 (S.C.)

Sikh Gurdwaras Act, 1925, Ss.10, 9 & 8 – Scope and object – Provisions of Ss.10 & 8 operate in different fields – S.8 deals with adjudication of rights, title and interest of the applicant – S.9 makes Part III of the Act applicable where a notification is issued – Held, it cannot be said that an application u/s 10 is excluded when notification u/s 9 is issued. (Shiromani Gurdwara Parbandhak Committee, Amritsar Vs Bagga Singh & Ors.) 2003(1) Apex Court Judgments 44 (S.C.)

Sikh Gurdwaras Act, 1925, S.16 – Descent of property from a Guru of Udasi sect to his Chela – In an institution of Udasis sect, one can visulize reading of Granth Sahib or veneration of Sikh scriptures but that in itself is not decisive of the character of the institution – Where succession is from Guru to Chela and those Gurus were followers of Udasis faith and the institution was known as Dera of Uasi Bhekh and they followed some of the practices of Hindu traditional religion, such things are completely destructive of character of institution as Sikh Gurdwara. (Shiromani Gurdwara Parbandhak Committee, Amritsar Vs Bagga Singh & Ors.) 2003(1) Apex Court Judgments 44 (S.C.)

Sikh Gurdwaras Act, 1925, S.16(2) – Dera of Udasis cannot be termed as a ‘Gurdwara’ – The sine qua non for an institution, to be a Sikh Gurdwara is that there should be established Guru Granth Sahib and worship of the same by congregation and a Nishan Sahib – There may be other rooms of the institution for other purposes but the crucial test is the existence of Guru Granth Sahib and the worshippers thereof by the congregation and Nishan Sahib – Unless the claim falls within one or the other of the categories enumerated in S.16(2), the institution cannot be declared to a Sikh Gurdwara. (Shiromani Gurdwara Parbandhak Committee, Amritsar Vs Bagga Singh & Ors.) 2003(1) Apex Court Judgments 44 (S.C.)

Smoking in public places – Banned, till statutory provision is made and implemented by legislative enactment – Non smoker cannot be compelled to be victim of air-pollution. (Murli S.Deora Vs Union of India & Ors.) AIR 2002 S.C. 40

Societies Registration Act, 1860, Pre. – Rank trespasser having no connection with society interfering in affairs of Society by raising funds in name of Society by claiming himself to be President – Suit for injunction – Provisions of Act not applicable. (Umesh Chandra Saxena Vs First Additional Civil Judge) AIR 2003 Allahabad 140

Special Marriage Act, 1954, S.25(iii) – Previous marriage – Wife a widow and this fact not disclosed to respondent – Amounts to exercise of fraud – Husband is entitled to decree of nullity. (Smt.Asha Qureshi Vs Afaq Qureshi) AIR 2002 M.P. 263

Specimen handwriting – During investigation – Direction of Court to accused to give handwriting in course of investigation to enable investigating agency to compare such writing – Can be made under provision of S.164 Cr.P.C. – Section 73 of Evidence Act is no impediment – Handwriting opinion so obtained during investigation can be read into evidence despite the bar created by S.73 of Evidence Act. (Sanjay Goel Vs State of U.P.) 2002(1) Criminal Court Cases 439 (All.)

Speedy trial – High Court direction for conclusion of trial within three months – If trial not concluded within time bound schedule,  trial Court to seek extension of time. (State of Punjab Vs Balraj Singh Takhar) 2003(3) Criminal Court Cases 393 (P&H) 

Speedy trial – High Court direction for conclusion of trial within three months – No person, guilty of serious offence, should be permitted to escape on the ground of some error on the part of the prosecution in concluding its evidence in time.  (State of Punjab Vs Balraj Singh Takhar) 2003(3) Criminal Court Cases 393 (P&H) 

Stamp Act, 1899, Stamp – Cancellation – Writing across stamp – Is legally effective for the purpose of cancellation of stamp. (Stamp Act, 1899, S.12). (Andi Ambalam Vs Sevani Ammal) 2003(1) Civil Court Cases 383 (Madras) 

Stamp Act, 1899, S.2(6) – Stamp duty – Is chargeable with reference to date of execution of instrument. (Rajendra Prasad Garg Vs Chief Controlling Revenue Authority) AIR 2002 Allahabad 162

Stamp Act, 1899, S.2(22), Art.49(b) – Promissory note or acknowledgment of debt – Document admitting liability to pay settled amount within stipulated time – Not containing terms “to the barer” or “to the order” – Held, document is acknowledgment of debt and not promissory note. (Kotla Sudheer Kumar Vs Mallavarapu Jojayya) AIR 2002 A.P. 170

Stamp Act, 1899, S.3 – Lease deed – Change in name of company – Supplementary lease deed executed with the same terms and conditions as existed earlier – Stamp duty afresh is leviable. (Prasad Technology Park Pvt. Ltd. Vs Sub-Registrar, Krishnarajapuram) 2004(2) Civil Court Cases 311 (Karnataka)

Stamp Act, 1899, S.12 – Stamp – Cancellation – Writing across stamp – Is legally effective for the purpose of cancellation of stamp. (Andi Ambalam Vs Sevani Ammal) 2003(1) Civil Court Cases 383 (Madras)

Stamp Act, 1899, S.29 – Sale deed of immovable property – Duty to pay stamp duty is that of vendee and not of vendor. (Kunwarpal Sharma  Vs State of U.P.) 2003(1) Civil Court Cases 362 (Allahabad) 

Stamp Act, 1899, S.33 – On reading of entire document it merely acknowledged pre-existing liability – Document an agreement only – Order to pay deficit stamp duty on ground that it was a bond, set aside. (M.R.Sreedhran Vs G.Gopi) AIR 2004 Kerala 167

Stamp Act, 1899, Ss.33, 47-A – Sale deed – Impounding of – Parties not intending to register it – Initiation of proceedings for impounding is uncalled for. (Ram Prasad Singh Vs State of Jharkhand) AIR 2002 Jharkhand 12

Stamp Act, 1899, S.35, Registration Act, 1908, S.49 – Insufficiently stamped and unregistered partition deed is inadmissible in evidence unless the stamp duty and penalty is paid. (Bolleddula Lakshmi Devi Vs Bolleddula Papanna & Ors.) 2004(2) Civil Court Cases 253 (A.P.)

Stamp Act, 1899, S.35 – Document – Insufficiently stamped document – Stamp duty can be collected only at the time of its admission into evidence – Court cannot order payment of stamp duty and penalty before the stage of admission of the document in evidence. (Y.Vijaya @ Vijaya Laxmi Vs Bojja Baghaiah) 2005(1) Civil Court Cases 70 (A.P.)

Stamp Act, 1899, S.35(a) – Provision applies if original is actually before the Court and not to copy of the original. (Hari Singh Vs Shish Ram) 2003(1) Civil Court Cases 554 (P&H)  

Stamp Act, 1899, Ss.35, 2(15, Registration Act, 1908, S.17 – Partition or memorandum of partition –  Recitals showing that partition is effected by that document by specifying shares including payment of maintenance to mother and that no partition was done earlier by metes and bounds – Document not containing recitals that the parties have already taken possession of the properties by virtue of the earlier oral partition and continue to enjoy the said properly separately after taking possession as per earlier partition – Document is required to be stamped and registered being partition deed and not memorandum of partition. (A.Krishna & Anr. Vs A.Arjun Rao & Anr.) 2004(2) Civil Court Cases 194 (A.P.)

Stamp Act, 1899, Ss.35 & 36 – Copy of document – Cannot be called an instrument, as such is not required to be stamped – S.36 speaks of original document itself – A combined reading of Ss.35 & 36 envisages original document to be stamped and not a copy of the original for the purpose of Stamp Act. (Akkam Laxmi Vs Thosha Bhoomaiah) 2003(1) Civil Court Cases 452 (A.P.) 

Stamp Act, 1899, S.36, Civil Procedure Code, 1908, O.13.R.4 – Document admitted in evidence – It puts beyond pale of controversy with regard to sufficiency or insufficiency of stamps. (Andi Ambalam Vs Sevani Ammal) 2003(1) Civil Court Cases 383 (Madras) 

Stamp Act, 1899, S.40 – Stamp duty – Deficiency – Payment – Order of Munsif Court holding document as sale deed and directing petitioner to pay deficit stamp duty and penalty – Reference to Collector – Collector has to adjudicate deficiency of stamp and Collector cannot say no on the ground that the same has been decided by Court. (Paladugu Ramesh Vs District Registrar) AIR 2003 A.P. 315

Stamp Act, 1899, Ss.40, 38 – Insufficiently stamped document – Court referred the document to District Collector for impounding the same after collecting necessary stamp duty and penalty – District Collector refusing to determine quantity of penalty – Order is illegal – Consequently, action of Court in imposing penalty of 10 times compulsorily payable by party is also illegal. (Malla Satyanarayana Vs Lanka Venkata Ramanamma & Ors.) 2004(2) Civil Court Cases 177 (A.P.)

Stamp Act, 1899, S.47-A, Haryana Stamp (Prevention of Under Valuation of Instruments) Rules, 1978 – Sale deed – Deficient stamp duty – Recovery – Action can be taken within 3 years of date of registration of instrument. (Raghbir & Ors. Vs State of Haryana & Ors.) 2004(2) Civil Court Cases 705 (P&H)

Stamp Act, 1899, S.47(A) – Lease-cum-sale agreement – Substantial amount of sale consideration deposited and balance paid in instalments – Registration of sale deed – No reason to doubt the sale consideration actually paid and recited in the document – Increase in market value due to passage of time – Demand of stamp duty in accordance with increased market value not sustainable. (R.Sukumaran Vs State of Tamil Nadu) 2003(2) Civil Court Cases 694 (Madras) 

Stamp Act, 1899, S.47-A – Sale deed – Deficient stamp duty – Recovery – No officer other than Collector can issue such notice. (Raghbir & Ors. Vs State of Haryana & Ors.) 2004(2) Civil Court Cases 705 (P&H)

Stamp Act, 1899, Ss.47, 33 & 40 – Stamp duty – Determination – Relevant date – Market value of the property has to be determined with reference to the date on which the document is executed for the purpose of determination of proper stamp duty payable on the instrument. (Rakesh Chandra Mittal & Ors. Vs Addl. District Magistrate & Anr.) 2005(1) Civil Court Cases 817 (Allahabad)

Stamp Act, 1899, S.48 – Document – Insufficiently stamped – Civil Court is not vested with the power to recover stamp duty and penalty – Such power is vested only in the Collector – If a party does not pay the stamp duty or penalty fixed by the trial Court it can only refuse to receive the document in evidence and send it to Collector, who only has the power to recover the stamp duty and penalty. (Y.Vijaya @ Vijaya Laxmi Vs Bojja Baghaiah) 2005(1) Civil Court Cases 70 (A.P.)

Stamp Act, 1899, Arts.55, 61 – Surrender of lease – Stamp duty – Is to be paid under provision of Art.61 and not on the basis of market value. (P.M.Muthish Chettiar Vs Inspector General of Registration) AIR 2002 Madras 265

Stamp Act, 1899, S.56 – Deficient stamp duty – Order determining – Appeal against – Appellate authority staying order by imposing condition of deposit of 1/3rd of total amount of deficient stamp duty – Condition held not onerous. (Neelkamal Sharma Vs State of U.P.) AIR 2003 Allahabad 151

Stamp Act, 1899, S.56 – Stamp duty – Deficiency – Order of District Magistrate – Order is revisable by Chief Controlling Revenue Authority. (Kamala Devi Khetan Vs Commissioner) AIR 2003 Allahabad 113

Standards of Weights and Measures Act, 1976, S.39 & Standards of Weights and Measures (Packaged Commodities) Rules, 1977, Rr.23(1) and 6(1) – Date of manufacturing – Non mentioning on “Birla White Portland Cement” – There is no obligation on the manufacturer, wholesaler or retailer to mention the date of manufacture on such packages or bags – Process issued against petitioner quashed. (Indian Rayon & Industries Limited Vs State of Maharashtra) 2003(2) Criminal Court Cases 530 (Bombay) 

Standards of Weights and Measures Act, 1976, S.72, Criminal Procedure Code, 1973, Ss.200, 482 – Retail sale price – Tampering of – Complaint must be by Director or any authorised officer, any person aggrieved or a recognised consumer association – Complaint by Inspector who was not duly authorised to make complaint – Process issued on complaint made by unauthorised person quashed. (The Manager, Asian Paints (India) Limited, Bangalore Vs The Inspector of Legal Metrology) 2003(1) Criminal Court Cases 611 (Karnataka)

Standards of Weights and Measures Act, 1976, S.83, Standards of Weights and Measures (Packaged Commodities) Rules, 1977, Rules 4, 6(1)(f) and 23, Criminal Procedure Code, 1973, Ss.200, 482 – Retail sale price – Tampering of – No averment in complaint that offence was committed by manufacturer – Proceedings initiated against manufacturer in absence of such averment is bad – Proceedings quashed. (The Manager, Asian Paints (India) Limited, Bangalore Vs The Inspector of Legal Metrology) 2003(1) Criminal Court Cases 611 (Karnataka)

State Financial Corporation Act, 1951, S.29 – Recovery of outstanding amount – Statutory powers vested in the State Financial Corporation under the State Financial Corporation Act, must be exercised bonafide and in public auction adequate publicity must be given to ensure maximum participation of bidders in the sale. (M/s S.J.S.Business Enterprises (P) Ltd. Vs State of Bihar & Ors.) 2004(2) Apex Court Judgments 212 (S.C.) : 2004(3) Civil Court Cases 01 (S.C.)

State Financial Corporation Act, 1951, S.29(1), Constitution of India, Art.300-A – Surety – Corporation can take direct action against defaulting concern without Court’s intervention – Right to take management or possession or both of concern as well as right to transfer by way of lease or sale and realise property pledged, mortgaged, hypothecated or assigned – This right is available only against defaulting concern and not against surety – However, Corporation can seek remedy against surety only through Court and not by resorting to direct action. (N.Narasimhaiah Vs Karnataka State Financial Corporation, Bangalore & Ors.) 2004(2) Civil Court Cases 158 (Karnataka)

State Financial Corporation Act, 1951, Ss.29 and 32E – Hypothecation of property – Sale – Possession of hypotheca and effected sale thereof after notices and observance of complete procedure – Corporation thus becoming owner of property – Sale of property confirmed in favour of purchaser – Restraint order by Company Judge in subsequent winding up petition in respect of possession of property and goods in question – Liable to be set aside. (Shivalik Agro Poly Products Ltd. Vs Disco Electronics Ltd.) AIR 2002 Delhi 10

State Financial Corporation Act, 1951, S.29 – Loan – Non repayment inspite of rescheduling of loan – Action of Corporation in taking possession of unit and putting it to sale – Not arbitrary. (Haryana Financial Corporation Limited Vs M/s Kabis Shines Private Limited) AIR 2002 P&H 142

State Financial Corporation Act, 1951, S.29 – Loan – Recovery – Against guarantors – Guarantors cannot say that corporation should first proceed against unit of borrower company taken over and only thereafter to proceed against him. (Kailash Chand Jain Vs Uttar Pradesh Financial Corporation) AIR 2002 Allahabad 302

State Financial Corporation Act, 1951, S.29 – Loan – Recovery – Auction of property – Court cannot give direction to auction property in a particular manner only, particularly by selling the property in piecemeal. (G.S.F.C. Vs MCM Hotels Pvt.Ltd.) AIR 2002 Gujarat 287

State Financial Corporation Act, 1951, S.29 – Loan – Recovery – Sale of unit by public auction – Wide publicity is necessary – Same cannot be avoided by pleading financial constraints. (Dutta Barua & Company Vs Assam Financial Corporation) AIR 2003 Gauhati 97

State Financial Corporation Act, 1951, S.31 – Debt recovery proceedings – Court cannot, suo motu, compel them to proceed or transfer proceedings to Debt Recovery Tribunal under 1993 Act. (Maharashtra State Financial Corporation Vs Devidas K.Virkar) AIR 2004 Bombay 323

Status quo order by civil court – Proceedings u/s 145 Cr.P.C. not competent when there is an order of Civil Court. (Dalbir Singh Vs State (NCT of Delhi)) 2002(1) Criminal Court Cases 444 (Delhi)

Statute – Has  to be read and understood meaningfully and purposefully in the context of the object or purpose it seeks to achieve. (Siri Ram Batra & Ors. Vs Financial Commissioner, Delhi & Ors.) 2005(1) Civil Court Cases 425 (S.C.) : 2005(1) Apex Court Judgments 370 (S.C.)

Statute – Interpretation – A statute must be read as a whole – One provision of the Act should be construed with reference to other provisions of the same act so as to make a consistent, harmonious enactment of the whole statute – Court must ascertain the intention of the legislature by directing its attention not merely to the clauses to be construed, but to the scheme of the entire statute – Attempt must be to eliminate conflict and to harmonise the different parts of the statute. (Godawat Pan Masala Products I.P.Ltd. & Anr. Vs Union of India & Ors.) 2004(2) Apex Court Judgments 695 (S.C.) : 2004(4) Criminal Court Cases 530 (S.C.)

Statute – Repeal by necessary implication – Is inferred when provisions of later Act are so inconsistent with or repugnant to the provisions of earlier Act and that two cannot stand together. (State of M.P. Vs Kedia Leather & Liquor Ltd. & Ors.) 2003(2) Apex Court Judgments 497 (S.C.)

Statute – Special and general – Conflict – Special law must displace the general law to the extent of inconsistency. (Godawat Pan Masala Products I.P.Ltd. & Anr. Vs Union of India & Ors.) 2004(2) Apex Court Judgments 695 (S.C.) : 2004(4) Criminal Court Cases 530 (S.C.)

Statute – Where a statute directs anything to be done in a particular way, that would include in itself, that it shall not be done otherwise. (Ram Lal Vs State of Haryana) 2002(2) Criminal Court Cases 689 (P&H)

Statutes – Interpretation –  “Shall” – Not conclusive on the question whether it is mandatory or directory provision – In order to find out the true character of the legislation, the Court has to ascertain the object which the provision of law in question is to subserve and its design and the context in which it is enacted. (A.V.Purushotam Vs N.K.Nagaraj) 2004(2) Civil Court Cases 708 (Karnataka)

Statutes – Interpretation – Court cannot read anything into a statutory provision which is plain and unambiguous – A statute is an edict of the Legislature – The language employed in a statute is the determinative factor of legislative intent. (Maulavi Hussein Haji Abraham Umarji Vs State of Gujarat & Anr.) 2004(4) Criminal Court Cases 289 (S.C.)

Statutes – Interpretation – Legislative intent – Language employed in a statute is determinative factor – Object of interpretation of a statute is to ascertain intention of Legislature enacting it – Courts are not entitled to read words into an Act unless clear reason for it is to be found. (Shiv Shakti Coop. Housing Society, Nagpur Vs M/s Swaraj Developers & Ors.) 2003(2) Apex Court Judgments 182 (S.C.)

Statutes – Interpretation – Proviso – As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule – “If the language of the enacting part of the statute does not contain the provisions which are said to occur in it you cannot derive these provisions by implication from a proviso – Normally, a proviso does not travel beyond the provision to which it is a proviso – It carves out an exception to the main proviso to which it has been enacted as a proviso and to no other. (Maulavi Hussein Haji Abraham Umarji Vs State of Gujarat & Anr.) 2004(4) Criminal Court Cases 289 (S.C.)

Stay – Granted time bound – Not extended on the adjourned date – Held, in absence of order vacating stay, same should be deemed to be in force till decision of the proceedings. (Kanahiya Lal Vs Thakurji Shri Keshoraiji & Ors.) 2004(3) Civil Court Cases 294 (Rajasthan)

Subsequent events – Court can take notice of it if (1) subsequent event is brought promptly to the notice of the Court (2) It is brought to the notice of Court consistently with rules of procedure enabling Court to take note of such events and affording the opposite party an opportunity of meeting or explaining such events and (3) Subsequent event must have a material bearing on right to relief of any party. (Atma S.Berar Vs Mukhtiar Singh) 2003(1) Civil Court Cases 400 (S.C.) : 2003(1) Apex Court Judgments 39 (S.C.)

Succession – Parties belonging to ‘Scheduled Tribe’ – Parties are governed by tribal custom of the area and not by provisions of Hindu Succession Act – After re-marriage widow looses her right in the property of her former husband and it will revert back to the collateral of her husband. (Smt.Sonam Dolma Vs Phunchog Angrup) 2003(3) Civil Court Cases 332 (H.P)

Succession Act, 1925, Ss.1-5, 1-6 & 109 – Legacy – Made by testator in favour of his three sons – One of sons dying issueless but leaving behind his widow during life-time of testator – Legacy would not lapse. (Karnail Singh Vs Mohinder Kaur) AIR 2003 P&H 135

Succession Act, 1925, S.63(c), Evidence Act, 1872, Ss.68, 101 to 104 – Will – Execution – Proof – Burden is on propounder of Will to prove that instrument propounded is last Will of free and capable testatrix – When propounder leads evidence of attesting witnesses to show that Will bears signature or mark of testatrix, he can be said to have discharged his burden – Held, propounder is entitled to grant of probate, where circumstances surrounding execution of Will is not shrouded in suspicion. (Kenchathayamma & Anr. Vs Nil) 2004(2) Civil Court Cases 425 (Karnataka)

Succession Act, 1925, S.218 – Testamentary proceedings – Proceedings are limited to the extent whether impugned testament is true, genuine and valid – Question of title or ownership not to be decided. (T.Sarveswara Rao T.Sathyanarayana) AIR 2002 Madras 487

Succession Act, 1925, S.236 – A society registered under Societies Registration Act, 1860 is not entitled to obtain Letters of Administration u/s 236 of the Act in its own name. (Illachi Devi (D) by LRs. & Ors. Vs Jain Society, Protection of Orphans India & Ors.) 2003(2) Apex Court Judgments 425 (S.C.)

Succession Act, 1925, S.263 – Letter of administration – Foreign will – Finding that provisions of revocation of letter of administration does not apply to foreign will – Not proper. (Krishnan Vs Narzan) AIR 2003 Kerala 98

Succession Act, 1925, S.307(2) – Legatee getting life interest by way of Will – Legatee selling the property – Vendor gets only life interest of legatee in property and after the death of legatee, life interest purchased by vendor also get extinguished. (R.Shariff & Ors. Vs A.Mohammed Noor & Anr.) 2004(3) Civil Court Cases 386 (Karnataka)

Succession Act, 1972, S.370 – Succession certificate – Granted – However concerned person refusing to make payment – Execution proceedings cannot be filed for execution of the succession certificate – Holder of succession certificate has to file suit on the basis of the said succession certificate. (Pramila  Vs Life Insurance Corporation of India & Ors.) 2004(3) Civil Court Cases 33 (Bombay)

Succession Act, 1925, S.372 – Succession certificate – Application by widow of deceased and two sons – Mother of deceased impleaded as respondent during pendency of application – Mother died – Two sons relinquished their right in favour of widow of deceased – Grant of succession certificate in favour of widow for withdrawal of money – Not improper. (Amrita Dubey & Ors. Vs Civil Judge (Sr.Dn.) Gorakhpur & Anr.) 2004(2) Civil Court Cases 251 (Allahabad)

Succession Act, 1925, S.372 – Succession certificate – Direction for DNA test in proceedings for grant of succession certificate cannot be given. (Shri Banarsi Dass Vs Mrs.Teeku Dutta & Anr.) 2005(1) Apex Court Judgments 717 (S.C.) : 2005(2) Civil Court Cases 235 (S.C.)

Succession Act, 1925, Ss.372 & 371 – Succession certificate – Jurisdiction –  Provision empowers District Judge within whose jurisdiction any part of property of deceased is  situated can be invoked only in cases where deceased had no fixed place of residence at the time of his death. (Madhuribai Wd/o Mohan Walke & Anr. Vs Annapurnabai Keshao Walke) 2003(3) Civil Court Cases 460 (Bombay) 

Succession Act, 1925, S.372 – Succession certificate – Revision against rejection of application – Concurrent finding by Courts below that applicants are not husband and son of deceased – Cannot be interfered with in revision – Proper remedy is to file suit for declaration. (Ashish Kumar Vs Smt.Leela Bai)  AIR 2002 M.P. 150

Succession Act, 1925, S.372 – Succession certificate – Widow of deceased and two cons filed application – Mother impleaded as party during pendency of proceedings – Mother died subsequently – Two sons relinquished their share in favour of widow of deceased – Grant of succession certificate in favour of widow – Not improper. (Smt.Amrita Dubey Vs Civil Judge) AIR 2004 All. 103

Succession Act, 1925, Ss.372, 373 – Succession certificate – Claim of first wife and second wife who was nominated in service record – Succession certificate granted in favour of first wife in respect of amount in bank and to second wife of retiral benefits – Finding challenged by both parties – Held, proceedings for grant of succession certificate are summary in nature and as there is no final adjudication of status and title of parties to estate of deceased, it is only clarified that grant of succession certificates would not stand in way of either party in approaching civil Court to work out their rights in accordance with law. (Shogra Khatoon Vs Shairun Bibi and others) AIR 2004 Jharkhand 109

Succession Act, 1925, S.383 – Succession certificate – Revocation – Succession certificate granted in favour of husband – Subsequently name of daughter inserted as successor – Appellant No.1 claiming to be daughter-in-law moved for revocation of certificate – Relationship of husband of appellant with parents denied by daughter of deceased – Appellant not expected to have knowledge of birth of her husband – Placing of burden of proof on the appellant erroneous – Daughter of deceased lady able to bring positive proof in denial of relationship – No evidence produced by daughter of deceased – Appellant bought out circumstances to show that her husband was son of the parents – Revocation of succession certificate allowed. (Madhulika Verma Vs Prabhawati Verma) 2003(3) Civil Court Cases 234 (M.P) 

Suppression of a material fact – Disentitles a party from getting any relief from Court – However fact suppressed must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case – It must be a matter which was material for the consideration of the Court. (M/s S.J.S.Business Enterprises (P) Ltd. Vs State of Bihar & Ors.) 2004(2) Apex Court Judgments 212 (S.C.) : 2004(3) Civil Court Cases 01 (S.C.)

Suit for possession – Building exempt from Rent Act for a period of 5 years from completion of building – Building will be considered complete from grant of sewerage connection – Contention that sewerage connection was issued by an Authority which was  not competent to issue connection is not relevant in a suit for possession. (M/s.V.K.Sood Engineers and contractors Pvt. Ltd.,  Vs Manpal Singh) 2003(1) Civil Court Cases 274 (P&H) 

Suit for possession – Rescission of contract – Repudiation of agreement of sale by defendant in possession of property in question – Suit for recovery of possession without seeking relief of rescission of the contract – Suit is maintainable. (Moparthi Sarojini Devi Vs Kavuru) 2003(1) Civil Court Cases 559 (A.P.) 

Summary proceedings – Relationship of landlord and tenant – Can be decided by such Court – However, the decision will not operate res judicata and be open to challenge in a subsequent suit. (Punjab Security of Land Tenure Act, 1953, S.77). (Harkaran Singh & Ors. Vs Financial Commissioner Haryana) 2003(3) Civil Court Cases 622 (P&H) 

Tamil Nadu Prevention of Dangerous Activities of Boot Leggers, Drug Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982, S.5-A – An extraneous and irrelevant ground does not affect validity of the detention order in view of S.5-A. (State of Tamil Nadu Vs Kethiyan Perumal) 2005(1) Criminal Court Cases 512 (S.C.)

Tamil Nadu Prevention of Dangerous Activities of Boot Leggers, Drug Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982, S.5-A – Passage of time in all cases cannot be a ground not to send the detenu to serve remainder of the period of detention – It all depends on the facts of the act and the continuance or otherwise of the effect of the objectionable acts – State shall consider whether there still exists a proximate temporal nexus between the period of detention indicated in the order by which the detenu was required to be detained and the date when the detenu is required to be detained pursuant to the appellate order. (State of Tamil Nadu Vs Kethiyan Perumal) 2005(1) Criminal Court Cases 512 (S.C.)

Tamil Nadu Prevention of Dangerous Activities of Boot Leggers, Drug Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982, S.5-A – Preventive detention – Detenu indulged in indiscriminate felling of trees which destroys ecological system and dangerous to public order – Detention order upheld. (State of Tamil Nadu Vs Kethiyan Perumal) 2005(1) Criminal Court Cases 512 (S.C.)

Tamil Nadu Prevention of Dangerous Activities of Boot Leggers, Drugs Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982, S.3(1) – Preventive detention – Detenu arrested as he was brewing illicit arrack in a mud pot – Police took samples of arrack and remaining arrack alongwith mud pot was destroyed on spot – Factum of brewing of liquor sought to be established by production of destruction Mahazar – Copy of this Mahazar document not given to detenu inspite of demand – Such denial caused prejudice to detenu as he could not effectively represent against order of detention – Order of detention quashed. (Raja Vs State of Tamil Nadu) 2005(2) Criminal Court Cases 562 (S.C.)

Tape recorded conversation – Tape of voice of ‘R’ produced in Court – Statement of ‘R’ tape recorded when he appeared as a witness in Court – Supply of copy of tape,  recorded in Court,  for comparison of voice with that produced earlier – Allowed – As there is no provision in law as to how this exercise is to be carried out as such it is left open to trial Court to devise a means for doing so. (S.P.Goyal Vs Hari Dutt Dumra) 2003(3) Civil Court Cases 545 (P&H) 

Tape recorded conversation – Transcripts of tapes to be furnished to accused for the purpose of cross examination – Prosecution also directed to supply legible copies of documents to accused. (Abdul Latif Vs Central Bureau of Investigation) 2002(1) Criminal Court Cases 417 (P&H)

Telegraph Act, 1885, S.7 – New telephone connection – Application by son – Cannot be denied on the ground that there are outstanding dues against father. (Aseem Vs Union of India) AIR 2002 Allahabad 190

Telegraph Act, 1885, S.7-B – Telephone – Dispute as to payment of telephone bill – Remedy under Consumer Protection Act is in addition to that provided under S.7-B of the Telegraph Act – It is not in derogation thereof – The option to invoke one or the other remedy lies with the aggrieved party. (Consumer Protection Act, 1986, S.3, Telegraph Act, 1885, S.7-B.) (General Manager, Telecom, BSNL Vs Krishnan) 2003(2) Civil Court Cases 108 (Kerala) 

Telegraph Act, 1885, S.7-B – Telephone – Excessive bill – Arbitrator’s award – Proper enquiry has to be conducted – Arbitrator must call for the details viz. (a) the record of fortnightly readings in respect of 6 preceding bi-monthly periods and for all the available succeeding bi-monthly period; (b) an extract of fault card for the disputed period; (c) spurt report, action taken on the same and the result thereof – This will include (a) observations in the exchanges and (b) any field investigations if carried out. (Mohan Dasa Prabhu Vs Union of India) 2005(2) Civil Court Cases 45 (Kerala)

Telegraph Act, 1885, S.16 – Cutting or felling tress – Compensation – Impleadment of necessary parties – Objection cannot be raised by party once it has taken chance by filing written statement and having lost before District Judge. (Union of India Vs Special Judge) AIR 2004 All. 213

Telegraph Act, 1885, S.16(3) – Cutting or felling trees – Compensation – Dispute can be raised by filing petition u/s 16 before District Judge – It is not necessary that claimant should first approach authorities concerned u/s 10(d). (Union of India Vs Special Judge) AIR 2004 All. 213

Telephone – Dispute as to payment of telephone bill – Remedy under Consumer Protection Act is in addition to that provided under S.7-B of the Telegraph Act – It is not in derogation thereof – The option to invoke one or the other remedy lies with the aggrieved party. (Consumer Protection Act, 1986, S.3, Telegraph Act, 1885, S.7-B.) (General Manager, Telecom, BSNL Vs Krishnan) 2003(2) Civil Court Cases 108 (Kerala) 

Telephone – Dues – Demand notice issued to sons of subscriber – Merely because sons are residing with subscriber and using his telephone, they cannot be held liable to pay his dues – Notice issued to them is unsustainable. (Ajith Singh Vs General manger) AIR 2004 Karnataka 203

Tenancy – Proof – Certain essential features have to be proved to hold that there is relationship of landlord and tenant – It necessarily involves the existence of a contract in the form of lease deed or any circumstantial evidence showing that such a contract was in existence  – It further requires that possession of the immovable property should be proved by tenant in his capacity as such on payment of rent. (Transfer of Property Act, 1882, S.105). (Ram Chand Premi Vs Nawab Kaur) 2004(2) Civil Court Cases 188 (P&H)

Tenancy – Proof – Oral evidence rebutted by oral evidence – No Rent deed or lease deed produced on record – No rent receipt proved on record – Held, in such a situation, no finding can be recorded to conclude that there is relationship of landlord and tenant between the parties. (Transfer of Property Act, 1882, S.105). (Ram Chand Premi Vs Nawab Kaur) 2004(2) Civil Court Cases 188 (P&H)

Tenant – Expiry of tenancy period – Cannot be thrown out of premises by use of force – Remedy lies in a suit for eviction –  Police directed to restore possession and petitioner allowed to continue in possession. (Devkinandan Vs Civil Judge) 2003(1) Civil Court Cases 369 (Allahabad)  

Tender – Minimum turn over – Partnership firm – One partner later on admitted to the partnership – Tender rejected as petitioner had not required turnover – Turnover of admitted partner excluded as the partnership did not disclose anything to indicate that admitted partner has entered into partnership with the properties of his proprietorship as well as the goodwill. (M/s.D.R.Associates Vs General Manager, East Coast Railways & Ors.) 2005(1) Civil Court Cases 328 (Orissa)

Terrorist and Disruptive Activities (Prevention) Act, 1987, S.3(4) – Terrorism – To give precise definition is not possible – It may be possible to describe it as use of violence when its most important result is not merely the physical and mental damage of the victim but the prolonged psychological effect it produces or has the potential of producing on the society as a whole – There may be death, injury, or destruction of property or even deprivation of individual liberty in the process but the extent and reach of the intended terrorist activity travels beyond the effect of an ordinary crime capable of being punished under the ordinary penal law of the land and its main objective is to overawe the Government or disturb the harmony of the society or “terrorism” people and the society and not only those directly assaulted, with a view to disturb the even tempo, peace and tranquility of the society and create a sense of fear and insecurity. (Madan Singh Vs State of Bihar) 2004(3) Criminal Court Cases 283 (S.C.)

Terrorist and Disruptive Activities (Prevention) Act, 1987, Ss.3, 6(1) and 15, TADA Rules, R.15(5) – Confessional statement – Conviction – (i) Confession if properly recorded and made voluntarily and truthful; (ii) Whether such confession requires corroboration or not, is a matter for the court considering such confession on facts of each case; (iii) A general corroboration is required for use of confession of a accused against co-accused but in cases where  court is satisfied that the probative value of such confession is such that it does not require corroboration then it may base a conviction on the basis of such confession of the co-accused without corroboration;  (iv) The degree of corroboration so required is that which is necessary for a prudent man to believe in the  existence of facts  mentioned in the  confessional  statement; (v) Requirement of sub-rule (5) of Rule 15 of the TADA rules which contemplates  a confessional statement being sent to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate who, in turn, will have to send the same to the Designated Court is not mandatory and is only directory. (Sukhwant Singh @ Balwinder Singh Vs State through C.B.I.) 2004(1) Criminal Court Cases 674 (S.C.)

Terrorist and Disruptive Activities (Prevention) Act, 1987, Ss.3, 6(1) & 15 – If confessional statement of a co-accused is acceptable to the court even without corroboration then a confession of a co-accused can be the basis of conviction of another accused so implicated in that confession. (Sukhwant Singh @ Balwinder Singh Vs State through C.B.I.) 2004(1) Apex Court Judgments 71 (S.C.)

Terrorist and Disruptive Activities (Prevention) Act, 1987, S.5, Explosive Substances Act, 1908, Ss.4, 5 – Conscious possession – Once possession is established the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. (Durga Prasad Gupta Vs The State of Rajasthan through C.B.I. ) 2004(1) Criminal Court Cases 159 (S.C.)

Terrorist and Disruptive Activities (Prevention) Act, 1987, S.5, Explosive Substances Act, 1908, Ss.4, 5 – Conscious possession – Recovery of huge quantity of explosives from premises belonging to accused – No suggestion that somebody else other than accused planted those articles – When possession of huge quantity is proved there is nothing to discard the prosecution version that the possession was conscious. (Durga Prasad Gupta Vs The State of Rajasthan through C.B.I. ) 2004(1) Criminal Court Cases 159 (S.C.)

Terrorist and Disruptive Activities (Prevention) Act, 1987, S.5, Explosive Substances Act, 1908, Ss.4, 5 – Recovery of huge quantity of explosives – No further nexus with any terrorist or disruptive activity is required to be proved as statutory presumption arises that the said arm or explosive substance was meant to be used for a terrorist or disruptive act. (Durga Prasad Gupta Vs The State of Rajasthan through C.B.I. ) 2004(1) Criminal Court Cases 159 (S.C.)

Terrorist and Disruptive Activities (Prevention) Act, 1987, S.5 – Confessional statement – Accused told that he was not bound to make it and it can be used against him – It is desirable that time gap be given to accused to consider whether he still wants to make the statement. (Durga Prasad Gupta Vs The State of Rajasthan through C.B.I. ) 2004(1) Criminal Court Cases 159 (S.C.)

Terrorist and Disruptive Activities (Prevention) Act, 1987, S.5 – Conscious possession – ‘Conscious’ means awareness about a particular fact and it is a state of mind which is deliberate or intended – Possession in a given case need not be physical possession but can be constructive, having power and control over the article in case in question, while the person whom physical possession is given holds it subject to that power or control. (Durga Prasad Gupta Vs The State of Rajasthan through C.B.I. ) 2004(1) Criminal Court Cases 159 (S.C.)

Terrorist and Disruptive Activities (Prevention) Act, 1987, Ss.12, 15 and 18 –  Joint trial of any offence under TADA with other offences – Confessional statement duly recorded under S.15 of TADA and Rules framed thereunder would continue to remain admissible for the offences under any other law which were tried along with TADA offences under S.12 of the Act, notwithstanding that the accused was acquitted of offences under TADA in the same trial. (Prakash Kumar @ Prakash Bhutto Vs State of Gujarat) 2005(1) Criminal Court Cases 971 (S.C.) : 2005(1) Apex Court Judgments 403 (S.C.)

Terrorist and Disruptive Activities (Prevention) Act, 1987, S.15, Evidence Act, 1872, S.30 – Confession by one accused – Is admissible against co-accused as a substantive evidence – However that substantive evidence does not mean substantial evidence – It is the quality of the evidence that matters. (Hardeep Singh Sohal Vs State of Punjab through CBI) 2005(1) Criminal Court Cases 255 (S.C.)

Terrorist and Disruptive Activities (Prevention) Act, 1987, S.15, Terrorist and Disruptive Activities (Prevention) Rules, 1987, R.15 – Confession – Recorded by police officer – Police Officer did not record certificate under his own hand stating that he had explained to the person making the confession that he was not bound to make the confession and if he does so, the confession may be used against him and that he believed that confession was made voluntarily and it was taken in his presence and recoded by him and was read over to the person making it and admitted by him to be correct and it contained a full and true account of the statement made by him – Held, confession is inadmissible in absence of such a certificate. (Hardeep Singh Sohal Vs State of Punjab through CBI) 2005(1) Criminal Court Cases 255 (S.C.)

Terrorist and Disruptive Activities (Prevention) Act, 1987, S.15, Terrorists and Disruptive Activities (Prevention) Rules, 1987, Rule 15 – Offence under TADA – Confession before police – Police Officer who recorded the confession has not certified that he believed that the confession was voluntarily made – Confession not admissible in evidence. (Ayyub etc. Vs State of U.P.) 2002(2) Criminal Court Cases 485 (S.C.)

Terrorist and Disruptive Activities (Prevention) Act, 1987, S.15 – Confession by one accused – Can be used against another accused if two conditions are fulfilled (1) The co-accused should have been charged in the same case alongwith the confessor; (2) He should have been tried together with the confessor in the same case. (Hardeep Singh Sohal Vs State of Punjab through CBI) 2005(1) Criminal Court Cases 255 (S.C.)

Terrorist and Disruptive Activities (Prevention) Act, 1987, S.15(1), Evidence Act, 1872, Ss.30, 23 – Confession – Recorded u/s 15 of TADA is admissible notwithstanding anything contained in Evidence Act or Cr.P.C. – Confession u/s 15 of TADA is admissible in the trial of a co-accused for offence committed and tried in the same case together with the accused who makes the confession – S.15 of TADA excludes the application of S.30 of Evidence Act. (Jameel Ahmed & Anr. etc. Vs State of Rajasthan) 2003(2) Apex Court Judgments 94 (S.C.)

Terrorist and Disruptive Activities (Prevention) Act, 1987, S.15(1) and R.15(5) of Rules framed under TADA – Confession – Should be sent immediately to CMM or Chief Judicial Magistrate – Rule is directory and not mandatory. (Jameel Ahmed & Anr. etc. Vs State of Rajasthan) 2003(2) Apex Court Judgments 94 (S.C.)

Terrorist and Disruptive Activities (Prevention) Act, 1987, S.15(1) – Confession – Can be solely relied upon for conviction of its maker – It cannot be contended that because the statement has been recorded by a Police Officer the same is a weak type of evidence and should not be accepted without corroboration. (Jameel Ahmed & Anr. etc. Vs State of Rajasthan) 2003(2) Apex Court Judgments 94 (S.C.)

Terrorist and Disruptive Activities (Prevention) Act, 1987, S.15(1) – Confession – Is a substantive piece of evidence even against co-accused provided the concerned accused are tried together – As a matter of prudence, Court should look for some general corroboration which need not necessarily be on material facts mentioned in the confession but should be of such nature as to create confidence in the mind of the Court to rely upon such confession. (Jameel Ahmed & Anr. etc. Vs State of Rajasthan) 2003(2) Apex Court Judgments 94 (S.C.)

Terrorist and Disruptive Activities (Prevention) Act, 1987, S.15(1) – Confession – Is admissible in evidence against accused and co-accused provided it is voluntarily made and truthful. (Jameel Ahmed & Anr. etc. Vs State of Rajasthan) 2003(2) Apex Court Judgments 94 (S.C.)

Terrorist and Disruptive Activities (Prevention) Act, 1987, S.20A(1) – Prior approval for registration of a case – Can be in writing or oral – Provision is mandatory – Proceedings are not maintainable in absence of such approval. (Mukhtiar Ahmed Anshari Vs State (N.C.T. of Delhi)) 2005(2) Criminal Court Cases 795 (S.C.)

Terrorist and Disruptive Activities (Prevention) Rules, 1987, R.15, Evidence Act, 1872, Ss.24 & 25 – Arrest under TADA – S.P. recorded confession in presence of I.O. – I.O. also acted as interpreter – Not safe to base conviction. (Simon & Ors. Vs State of Karnataka) 2004(2) Criminal Court Cases 111 (S.C.)

Terrorist and Disruptive Activities (Prevention) Rules, 1987, R.15, Evidence Act, 1872, Ss.24 & 25 – Confession – By number of accused – Each accused given 5 minutes time to think over – It is illegal – Not safe to base conviction only on confessional statement. (Simon & Ors. Vs State of Karnataka) 2004(2) Criminal Court Cases 111 (S.C.)

Tort – Defamatory publication – Criteria for deciding quantum of compensation – analysed. (S.N.M.Abadi Vs Prafulla Kr.Mahanta) AIR 2002 Gauhati 75

Tort – Defamatory publication – In order to be defamatory publication it must tend to lower the plaintiff in the opinion of men whose standard of opinion the Court can properly recognise or tend to induce them to entertain an ill opinion of him – However, the plaintiff need not show a tendency of the imputation to prejudice him in the eye of every one in the community or all of is associates, but it is suffice to establish that the publication tends to lower him in the estimation of a substantial, respectable group, even though they are minority of the total community or of the plaintiff’s associates – The law relating to defamation is a limitation upon the Constitutional guarantee of freedom of speech and of the press, and the vagaries and complex structure of such law, as it exists to-day, is to a large extent a direct result of the friction between them, as a restriction on untrammelled freedom of expression, and the highly cherished rights of freedom of speech and of the press. (S.N.M.Abadi Vs Prafulla Kr.Mahanta) AIR 2002 Gauhati 75

Tort – Medical negligence – Accident case – Admitted to hospital – Major surgical operation required – Specialist doctor not available in hospital – He was busy in attending his private patients and cared little to attend deceased despite repeated request over telephone – Deceased succumbing to injuries – Doctor made liable to pay compensation of Rs.1,25,000/- – Directions issued for upgrading standard of medical service of all Govt. Hospitals. (Sishir Ranjan Saha Vs The State of Tripura) AIR 2002 Gauhati 102

Tort – Medical negligence – Birth of child  when petitioner had gone tubectomy operation – Birth of unwanted child – State liable to pay compensation. (Smt.Shobha Vs Govt. NCT of Delhi) AIR 2003 Delhi 399

Tort – Medical negligence – Diazepan injection given intra-venous whereas it is meant for intra muscular use – Death of patient – L.R’s are entitled to Rs.90,000/- as compensation. (Bholi Devi Vs State of J&K) AIR 2002 J&K 65

Tort – Medical negligence – Non performance of operation due to non availability of Anaesthetist – Stage Govt. can be held to be negligent for non providing of a Doctor or Anaesthetist or assistant – State Govt. directed to pay compensation. (Dr.Leela Bai Vs Sebastian) AIR 2002 Kerala 262

Tort – Negligence of doctor – Loss of life due to transfusion of blood of wrong group – State is vicariously liable for negligence of its doctor – However compensation paid can be recovered by State from those negligent and careless doctors and nursing staff. (R.P.Sharma Vs State of Rajasthan) AIR 2002 Rajasthan 104

Tort – Vehicle requisitioned by State for election purposes and same damages an destroyed by explosion caused by terrorists/extremists – State is liable to pay compensation for loss caused by such damage – Liability cannot be disowned for want of insurance of vehicle. (M/s Gray Hound Transport Co. Vs Union of India) AIR 2002 Jharkhand 47

Tort – Vicarious liability – Customer shot dead by guard of bank taking him to threat to cash as cash had arrived at the same time – Act of Security Guard was in course of employment and thus bank is vicariously liable to pay compensation to heirs of deceased customer. (Anita Bhandari Vs Union of India & Ors.) AIR 2004 Gujarat 67

Tort – Damages – Can be granted to the extent claimed in the suit though not under the very same head – Only restriction is that the total compensation shall not exceed the total amount claimed in the suit. (Arun Balakrishnan Iyer & Anr. Vs M/s Soni Hospital & Ors.) 2004(2) Civil Court Cases 183 (Madras)

Tort – Damages – Operation of Ovarian Cyst – Consent of patient obtained – During operation it was found that uterus has to be removed – As patient was anaesthetized as such consent of her husband obtained – Totality of evidence shows that doctor was not negligent when uterus of patient was removed – Removal of uterus without getting consent of patient does not give rise to any actionable claim – Held, doctor and hospital are not liable to pay any amount as damages. (Arun Balakrishnan Iyer & Anr. Vs M/s Soni Hospital & Ors.) 2004(2) Civil Court Cases 183 (Madras)

Tort – Damages – Operation – Abdominal pad left inside body during operation – Doctors who performed operation could be said to be negligent in performing the operation in not removing abdominal pad from abdomen before closing abdomen at the end of operation – Doctors and hospital are liable to pay damages – Compensation of Rs.35,000/- granted towards medical expenditure, Rs.2,00,000/- granted for pain and suffering and Rs.1,00,000/- for mental agony – However, husband of patient is not entitled to damages for loss of business since said loss cannot be said to be a direct consequence of negligence on part of doctors. (Arun Balakrishnan Iyer & Anr. Vs M/s Soni Hospital & Ors.) 2004(2) Civil Court Cases 183 (Madras)

Tort – Damages – Pits on road – Plaintiff fell in it and suffered serious head injury and other injuries on various parts of his body – There is common law duty imposed on PWD Department to maintain the road so as to avoid any danger to human life and safety – Where possibility of damage to personal safety is anticipated, there is a duty to flash the information giving adequate notice to the users of the road to take precaution and avoid accidents – Failure of PWD Department to give any such intimation to road users – Rs.1,50,000/- awarded as damages by Courts below – Calls for no modification or interference. (State of Haryana Vs Ram Bhaj) 2003(3) Civil Court Cases 472 (P&H)  

Tort – Death of girl student in hostel due to security lapse – Hostel authority directed to pay compensation of Rs.Five lacs for negligence – Keeping of a watchman is not sufficient security where any one had easy entry to hostel premises.  (Chief Secretary to the Government of Tamil Nadu, Madras & Ors. Vs Mrs.R.Selvam) 2004(4) Criminal Court Cases 04 (Madras)

Tort – Hire purchase agreement – All instalments paid – Still balance of Rs.41,000/- shown which also paid – Financier taking forcible possession of vehicle without notice to petitioner – Financier gave back possession of vehicle on direction of Court – Financier directed to pay Rs.50,000/- to petitioner as compensation for undue harassment and humiliation. (Dr.Amitabh Varma Vs The Commissioner of Police) 2003(2) Criminal Court Cases 56 (Delhi)

Trade and Merchandise Marks Act, 1958, Ss.28, 29 – Registered trade mark – Infringement – Bidies Registered trade mark “Phawara chap” infringement by defendant under same caption – Fountain of “Phawara” constituting main feature on both labels – Design surrounding fountain also similar – Both labels almost of equal size and design and both appear to be deceptively similar – Order restraining defendant from using labels or wrappers similar to registered trade mark – Held, proper. (Mohd.Iqbal Vs Mohd.Wasim)  AIR 2002 M.P. 162 Transport of Animals Rules, 1978: Rules 47 to 56 – Transportation of 18 buffaloes in a single lorry – It is cruelty – No goods vehicle should carry more than six cattle – There should be valid certificate by qualified veterinary surgeon as to fitness of animals to travel. (Prema Veeraraghavan Vs State) 2002(2) RCR (Criminal) 225

Trade and Merchandise Marks Act, 1958, Ss.29, 23 – Trade mark – Infringement during pendency of application for registration of trade mark – Is maintainable as registration of trade mark relates back to date of application. (Mumtaz Ahmad Vs M/s Pakeeza Chemicals) AIR 2003 Allahabad 114

Trade and Merchandise Marks Act, 1958, Ss.46, 46, 111 – Application for stay of proceedings during the pendency of an application for rectification of Registration of Trade Mark of Firm filed by sole partner of the firm – Is proper and maintainable – Application cannot be defeated on the ground that the Firm is not a party in the suit – There is no option with the Court but to stay the proceedings in the suit to await the result in rectification proceedings. (M/s.Paras Industries, Ludhiana Vs M/s.Paras Special Machine Co.) 2003(3) Civil Court Cases 540 (P&H) 

Tribunals Act, 1976, S.22, Limitation Act, 1963, S.5 – Time barred appeal – Tribunal can entertain time barred appeal if application u/s 5 for condonation of delay is filed alongwith it. (Ajay Singh & Ors. Vs Rajasthan Civil Service Appellate Tribunal & Ors.) 2003(3) Civil Court Cases 657 (Rajasthan) 

Tribunals Act, 1976, S.22 – Procedure – Tribunal has power to regulate its own procedure which includes fixing of place, time, inquiry in deciding whether to sit in public or private – But where objection is raised under a specific statute which provides procedure, Tribunal ought to examine same. (Ajay Singh & Ors. Vs Rajasthan Civil Service Appellate Tribunal & Ors.) 2003(3) Civil Court Cases 657 (Rajasthan) 

Urban Land Act, 1976, Ss.6(1) and Expln.2(h) – Vacant land – Ceiling – Is to be made with reference to date on which such land becomes vacant and that date would be date of commencement of Act – Master plan, therefore can be altered or introduced after date of commencement of Act. (State of A.P. Vs N.Audikesava Reddy) AIR 2002 S.C. 5

Urban Land (Ceiling and Regulation) Act, 1976, Ss.20(1), 6, 8, 9, 10, 11 & 15 – Excess vacant land – Exemption – State Government is empowered to impose conditions while granting exemption under Section 20 but such conditions cannot run contrary to or defeat the provisions of the Act. (State of A.P. Vs V.Venkataswara Rao (Dead) by Lr.) 2004(2) Apex Court Judgments 126 (S.C.)

U.P.Zamindari Abolition and Land Reforms Act, 1951, S.331 – Suit for cancellation of sale deed alleged to be got executed from father of plaintiff by playing fraud – S.331 is not applicable in such circumstances – Suit for cancellation of sale deed which is void or voidable in respect of agricultural land is maintainable in Civil Court. (Hameed & Ors. Vs Kanhaiya) 2005(1) Civil Court Cases 146 (Allahabad)

Valuation of suit for the purposes of Court fee – It is a matter between Court and plaintiff – Not proper for opposing litigant to raise objections on score of court fee for shutting out or obstructing adjudication of disputes. (Sidh Nath Agarwal Vs Vinod Kumar Agarwal) 2003(1) Civil Court Cases 334 (Allahabad) 

Vehicle – Involved in crime – Release – Imposing onerous condition not necessary – Maruti car ordered to be released on executing a personal bond for Rs.2 lakhs with two sureties – Not at all warranted – Vehicle ordered to be released on furnishing personal bond for Rs.20,000/- with two sureties for the like sum and furnishing a written undertaking not to alienate or encumber the vehicle and that the vehicle will be produced for identification, as and when required, either by the Investigating Officer or by Court and further to keep the R.C. of the vehicle with the Court, pending trial. (Donavalli Suresh Vs State of A.P.) 2002(2) Criminal Court Cases 367 (A.P.)  

Verification – Defect in verification and non compliance of the provision of O.7.R.1(j) and O.20.R.5 – These are only technical objections which do not go into the root of the case. (Puran Singh Vs Nathu) 2003(2) Civil Court Cases 74 (P&H)

Wakf Act, 1954, S.6 – Gazette notification that suit property is wakf property – Suit for declaration that it is bad in law – High Court holding that limitation to file suit is one year beginning from date of publication of list of wakf properties – Held, requirement to file suit within one year is in connection with any dispute between Wakf Board on one hand and mutawalli of wakf on other hand or person interested therein – Expression “therein” means interested in “Wakf” as distinct from interested in property – Impugned judgment set aside – Matter remanded to be heard on merits. (Abdul Rais & Ors. Vs Madhya Pradesh Wakf Board & Ors.) 2005(1) Apex Court Judgments 433 (S.C.)

Wakf Act, 1954, Ss.6 and 66-E – Bar of suit against Wakf Board – By a Gazette notification properties in possession of defendants notified as Wakf property – Suit filed earlier challenging said notification in terms of S.6 of Wakf Act dismissed – Legality of notification became final – Present suit filed by defendants against Wakf Board for injunction claiming suit properties as their own barred under S.66-E of the Act – Held, suit is not maintainable.(Andhra Pradesh Wakf Board Vs Syed Jalaluddin Sha ) 2004(3) Civil Court Cases 469 (A.P.)

Wakf Act, 1954, S.32(1) – Board – Powers and functions – Appointment of Mutawalli – Scheme framed by Court – Act of 1954 coming into operation – Held, scheme will continue to be in operation. (Sri Radhakrishna Rice Mills Vs The Jumma Maseed) AIR 2003 A.P. 70

Wakf Act, 1954, S.63 – Trustee/Mutawalli – Appointment – As per scheme framed by Court – Tenant of mosque has absolutely no locus either to participate in adjudication in such proceedings or to challenge outcome of the same. (Sri Radhakrishna Rice Mill Co. Vs The Jumma Maseed) AIR 2003 A.P. 70

Wakf Act, 1995, S.63 – Appointment of Muthawalli – Period not specified for which appointment made – Vitiates appointment. (Shaik Ghouse Mohiuddin Vs. A.P. State Wakf Board) AIR 2002 A.P. 344

Water Prevention and Control of Pollution Act, 1974, S.25(7) – Discharge of Sewer/Trade Effluent – Permission sought – Neither given nor refused – Same is deemed to have been unconditionally granted on the expiry of period of four months – Accused cannot be prosecuted for discharge of Trade Effluent – Acquittal upheld. (Punjab State Board Vs M/s.Shree Ram Printing Mills, Tarn Taran & Ors.) 2005(1) Criminal Court Cases 840 (P&H)

Water (Prevention and Control of Pollution) Act, 1974, Ss.33, 43 & 44, Criminal Procedure Code, 1973, S.197 – Violation of Water Act by Municipal Committee – Prosecution of President, Vice-President and Secretary – Said officers ceased to hold office – Sanction for prosecution not obtained – Prosecution quashed. (Ram Avtar Sharma Vs Haryana State Board) 2002(3) Criminal Court Cases 448 (P&H) 

Wildlife (Protection) Act, 1972, Ss.39(1)(d) and 51(3A) – Forest offence – Seizure of vehicle – Release – Order releasing vehicle during pendency of trial on furnishing Bank guarantee – Order valid – Contention that Magistrate should demand surety bond instead of bank guarantee – Contention repelled – When vehicle is seized in Forest offence the same is not normally returned to a party till the culminating of all the proceedings – Court can release the vehicle for exceptional reasons – Furnishing of Bank guarantee is the minimum condition. (Ayyub Vs State of Rajasthan) 2004(2) Criminal Court Cases 762 (Rajasthan)

Wild Life (Protection) Act, 1972, Ss.39, 51 – Release of vehicle involved in the commission of offence on supratnama – Court to give sound reasons and impose stringent conditions. (State of Maharashtra Vs Gajanan Dajiba Jambhulkar) 2002(1) Criminal Court Cases 628 (Bom.)

Wildlife (Protection) Act, 1972, S.50(3A) – Forest offence – Vehicle involved – Forest Officer has power to give on ‘Supardagi’ only captive animal or wild animal and not the vehicle. (Ayyub Vs State of Rajasthan) 2004(2) Criminal Court Cases 762 (Rajasthan)

Wild Life (Protection) Act, 1972, S.51, Cr.P.C.: S.457 – Seizure of vehicle for offence committed under Wild Life (Protection) Act – Held, provisions of Forest Act not applicable in deciding custody of vehicle. (State of Maharashtra Vs Gajanan Dajiba Jambhulkar) 2002(1) Criminal Court Cases 628 (Bom.)

Will – Attestation – Suspicious circumstance – Plaintiffs affidavit silent of having attested will – Undated, unsigned and unaffirmed affidavit of persons purporting to be that of attesting witnesses filed to comply with the requirement of Rule 374 of Original Side Rules – This by in itself is a suspicious circumstance. (P.Ramachandran Nair Vs Smt.Suparna Tapan Das) 2004(2) Civil Court Cases 46 (Bombay)

Will – Attestation – Will is required to be attested by two witnesses but it can be proved by examining one of the attesting witnesses. (Janki Narayan Bhoir Vs Narayan Namdeo Kadam) 2003(1) Apex Court Judgments 186 (S.C.)

Will – Attesting witnesses – One examined as other dead – Said witness stated that will was written at dictation of testatrix as also at dictation of two beneficiaries – Witness admitted that textatrix sat as silent spectator and she did not know anything about Will – Held, circumstances sufficient to discard Will. (Parshada Singh Vs Mewa Singh)  AIR 2002 P&H 243

Will – Attesting witnesses dead or alive – Mode of proof of handwriting and/or signatures – Mode of proof is the same as in case of any other document. (Smt.Jayanti Geogoi Vs Smt.Pranati Duara & Ors.) AIR 2004 Gauhati 23

Will – Attesting witnesses to will not alive or not found – No evidence to prove signature of any of two attesting witnesses – Requirement of S.69 Evidence Act to prove attestation of will by at least one of attesting witnesses, not fulfilled – Finding that execution of will is not proved, is proper. (Smt.Jayanati Gogoi Vs Pranati Duara) AIR 2004 Gauhati 23

Will – Beneficiary – Presence at time of execution or registration – In absence of any material to the contrary, mere presence of beneficiary at the time of execution of the will or at the time of registration of the will is not a suspicious circumstance. (Yash Pal Singh Vs Raj Pal Singh & Ors.) 2004(2) Civil Court Cases 142 (P&H)

Will – By a coparcener – Can be challenged only by another member of the coparcenary. (Fateh Singh & Ors. Vs Lakhbir Singh & Ors.) 2004(2) Civil Court Cases 57 (P&H)

Will – By females of Joint property – There is no bar imposed on a female Hindu to make a Will in relation to the Joint Property. (Hindu Succession Act, 1956, S.30 read with Indian Succession Act, 1925). (N.Anantha Kumar Vs P.Anjaneyulu & Ors.) 2004(3) Civil Court Cases 169 (A.P.)

Will – Certificate of registration – Not sufficient proof of execution of Will unless will is proved in terms of mandatory statutory requirements. (Simon Vs George) 2003(2) Civil Court Cases 89 (Kerala)

Will – Deprivation of a natural heir by testator – By itself is not a suspicious circumstance. (Amar Kaur Vs Paramjit Kaur) 2003(3) Civil Court Cases 645 (P&H) 

Will – Entire property bequeathed in favour of stranger – Not a suspicious circumstances as testator lived for number of years after execution and registration of will. (Cherukuri Satyavathi (Died) & Anr. Vs Velaga Kamala & Ors.) 2004(2) Civil Court Cases 60 (A.P.)

Will – Excluding son – Son in litigation with his father – Testator already purchased a house in the name of his first wife where his children from her, including the plaintiff were residing and gave the said house to his four daughters from the first wife – Conduct of testator in bequeathing item No.3 property in favour of his second wife and his son from her cannot be said to be unnatural. (P.S.Sairam & Anr. Vs P.S.Rama Rao Pisey & Ors.) 2004(1) Apex Court Judgments 356 (S.C.) : 2004(2) Civil Court Cases 649 (S.C.)

Will – Exclusion of natural heir – Testator was a bachelor – His relations with real sister not cordial – Testator used to live with his step sister – At the time of execution of Will testator was 85 years of age and suffered fracture but was mentally alert – Testator was looked after by defendants – Plaintiffs were nowhere in sight during his hospitalization or his treatment – Held, defendants have proved the reason for exclusion of plaintiffs from the benefits under the Will. (Meenakshiammal (Dead) through L.Rs. & Ors. Vs Chandrasekaran & Anr.) 2004(2) Apex Court Judgments 502 (S.C.) : 2005(1) Civil Court Cases 197 (S.C.)

Will – Executed in favour of grandsons of brother – Daughter excluded – There is a categorical mention in the will that daughter is happily married and a huge amount was spent on her marriage and that the will is executed in favour of grandsons of real brother of testator as they were rendering service to him – This fact shows the mind of the testator – Merely because appellant was daughter of testator does not establish that will is surrounded by suspicious circumstances when execution of will is duly established. (Krishna Devi & Ors. Vs Amarjit & Ors.) 2004(2) Civil Court Cases 593 (P&H)

Will – Executed in favour of nephew who was living with deceased excluding all other relatives – Merely because executed was deputed to fetch attesting witness as such it cannot be said that executant took leading part – Will proved to be signed in presence of witness who also attested at the same time – Will cannot be viewed suspiciously – Further non registration of Will cannot also be considered as suspicious circumstance. (Janaki Bohidar Vs Pradeep Kumar Bhodar) AIR 2002 Orissa 101

Will – Execution – For valid execution of Will (a) the testator has to sign or affix his mark to the will, or it has got to be signed by some other person in his presence and by his direction; (b) that the signature or mark of the testator, or the signature of the person signing at his direction, has to appear at a place from which it could appear that by that mark or signature the document is intended to have effect as a will; (c) the will has to be attested by two or more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the Will, or must have seen some other person sign the Will in the presence and by the direction of the testator, or must have received from the testator a personal acknowledgment of signature or mark, or of the signature of such other person, and each of the witnesses has to sign the Will in the presence of the testator. (Janki Narayan Bhoir Vs Narayan Namdeo Kadam) 2003(1) Apex Court Judgments 186 (S.C.)

Will – Execution – Proof – Appreciation of evidence – Contradictions in the statement of witnesses – Other evidence sufficient to prove the execution  of the will – Held, that with the passage of time of ten years minor  contradictions  are bound to occur – Due execution of Will upheld. (Jaswinder Singh & Ors. Vs Kartar Singh & Ors.) 2004(3) Civil Court Cases 80 (P&H)

Will – Execution – Proof – Attesting witness – Minor discrepancies as to witness not knowing the exact month and date etc. – Not material when witness is examined after 4 years of execution of will – Attesting witness deposed that he saw testator executing Will and attested same along with another witness – Will duly proved. (Senthilkumar Vs Dhandapani & Ors.) 2005(2) Civil Court Cases 392 (Madras)

Will – Execution – Proof – Attesting witnesses not signed the Will in presence of testator and in presence of each other – Will can be proved by other evidence in terms of S.71 Evidence Act only when attesting witness has denied his signature on the document itself and not when there is positive statement of attesting witness that he signed the will but not in the presence of testator and in presence of each other. (Evidence Act, 1872, S.71). (Balwinder Singh & Anr. Vs Mohinder Singh & Ors.) 2005(1) Civil Court Cases 115 (P&H)

Will – Execution – Proof – Facts and circumstances showing execution of Will shrouded by suspicious circumstances – No explanation for not mentioning names of nearest relations in Will – Granting of Succession Certificate to natural successors and rejecting probate to propounders of Will, held proper. (Ashok Kumar Vs Hemraj) AIR 2002 Rajasthan 239

Will – Execution – Proof – None of attesting witnesses examined – Will not proved. (Shantilal Vs Mahendra Kumar & Ors.) 2003 (2) Civil Court Cases 706 (Raj.)

Will – Execution – Proof – One attesting witness examined – If the attesting witness stated that the testator and other attesting witnesses signed the will in his presence and identifies the same, execution of the Will is proved – Examining second attesting witness is not necessary. (P.S.Sairam & Anr. Vs P.S.Rama Rao Pisey & Ors.) 2004(1) Apex Court Judgments 356 (S.C.) : 2004(2) Civil Court Cases 649 (S.C.)

Will – Execution – Proof – Onus of proving Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and proof of the signature of the testator, as required by law, is sufficient to discharge the onus – However, when there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before it accepts the will as genuine – Even where the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. (Meenakshiammal (Dead) through L.Rs. & Ors. Vs Chandrasekaran & Anr.) 2004(2) Apex Court Judgments 502 (S.C.) : 2005(1) Civil Court Cases 197 (S.C.)

Will – Execution – Proof – Propounder has to show that the Will was signed by the testator and that he put his signatures to the testament of his own free will and that at the relevant time he was in a sound disposing state of mind and understood the nature and effect of the dispositions and that the testator signed in the presence of two witnesses and attested it in his presence and in the presence of each other – Where there are suspicious circumstances the onus is on the propounder to remove the suspicion by leading appropriate evidence – Burden to prove that the Will was forged or that it was obtained under undue influence or coercion or by playing fraud is on the person who alleges it to be so. (Daulat Ram & Ors. Vs Sodha & Ors.) 2005(1) Apex Court Judgments 377 (S.C.) : 2005(1) Civil Court Cases 471 (S.C.)

Will – Execution – Proof – Propounder of Will proved that Will was signed by testator and that at the time of execution of Will he had a sound disposing state of mind and that he had reasons to exclude the plaintiffs who did not care for him in his old age – Testator before signing read the Will and signed in presence of attesting witnesses and witnesses had attested in presence of testator – Held, execution, attestation and genuineness of the Will is proved. (Meenakshiammal (Dead) through L.Rs. & Ors. Vs Chandrasekaran & Anr.) 2004(2) Apex Court Judgments 502 (S.C.) : 2005(1) Civil Court Cases 197 (S.C.)

Will – Execution – Proof – Sub Registrar – At the time of registration Sub Registrar read over the will – However, will was already attested – Neither the testator nor the attesting witnesses signed the Will in presence of Sub Registrar – Sub Registrar did not attest the Will with intention to attest the Will as a witness as such his statement cannot be taken as that of an attesting witness – Held, from the statement of Sub Registrar, it cannot be said that execution of the Will is proved. (Balwinder Singh & Anr. Vs Mohinder Singh & Ors.) 2005(1) Civil Court Cases 115 (P&H)

Will – Execution – Proof – Sub Registrar and scribe are not attesting witnesses – Where one attesting witness denied execution of Will and other witness not called to depose though available, execution of Will cannot be held to be proved on evidence of Sub Registrar and scribe. (Robert D’Mello Vs Henry D’Mello & Anr.) 2003(3) Civil Court Cases 396 (Karnataka) 

Will – Execution – Proof – Testator aged 85 years at the time of execution of Will and was living with his second wife and their son – Property bequeathed in favour of children of first wife and second wife but not in equal shares – Unequal distribution was due to fact that children of first wife had received sufficient landed property by way of gift and were settled independently – Nothing to show that son from second wife influenced testator at time of execution of Will – Will cannot be said to surrounded by suspicious circumstances. (Jangi Singh & Anr. Vs Raghubir Singh Chauhan & Ors.) 2004(2) Civil Court Cases 636 (Allahabad)

Will – Execution – Proof – Will is required to be attested by two witnesses and in order to prove its due execution, one attesting witness must be examined. (Succession Act, 1925, S.63(c), Evidence Act, 1872, S.68). (Jamuna Devi Vs Sarbati Devi (died) through L.R’s.) 2004(3) Civil Court Cases 40 (P&H)

Will – Execution – Suspicious circumstance – Propounder of Will accompanied testator at the time of execution of Will – Does not lead to an inference that propounder also actively participated in execution of Will. (Krishan Kumar & Ors. Vs Daryao Singh (Died) through LRs.) 2005(1) Civil Court Cases 461 (P&H)

Will – Execution – Suspicious circumstances – No satisfactory explanation as to why testator did not specifically incorporated in Will his other properties – All properties which were self acquired properties of testator bequeathed to son to exclusion of his only daughter – No explanation for non examination of son as a witness – Relations of testator with son not cordial – Held, Will is surrounded by suspicious circumstances. (P.Ramachandran Nair Vs Smt.Suparna Tapan Das) 2004(2) Civil Court Cases 46 (Bombay)

Will – Execution – When it is proved that Will was executed in presence of two witnesses and that testator was in sound disposing mind then presence of beneficiary at the time of execution of will or at the time of registration of will, without anything more, is not of any significance and that by itself is not a suspicious circumstance.  (Yash Pal Singh Vs Raj Pal Singh & Ors.) 2004(2) Civil Court Cases 142 (P&H)

Will – Execution – Will executed in favour of stranger to the family – Testator issueless and without wife – Defendants served testator – It is natural for testator to have bequeathed his property in favour of the defendants – Plaintiffs never served testator in any manner – No suspicious circumstance. (Krishan Kumar & Ors. Vs Daryao Singh (Died) through LRs.) 2005(1) Civil Court Cases 461 (P&H)

Will – Execution – Will thumb marked by a literate person – Explanation in Will that hands of testator were shaking due to nervous weakness as such Will was thumb marked – Not a suspicious circumstance. (P.S.Sairam & Anr. Vs P.S.Rama Rao Pisey & Ors.) 2004(1) Apex Court Judgments 356 (S.C.) : 2004(2) Civil Court Cases 649 (S.C.)

Will – Execution and attestation proved by attesting witness – Mere fact that attesting witnesses were not knowing the contents of Will as to who were beneficiaries – Does not discredit their evidence. (Vincent Britto Vs Mrs.Eunica Britto) AIR 2002 Karnataka 179

Will – First Will whereby all properties bequeathed to a trust due to strained relations with his son – Second will in favour of daughter-in-law and grand children – Brother of testator who was secretary of trust challenged subsequent will – Signature of testator in subsequent will proved by several witnesses – Attesting witness thereof proving due execution of will – Cogent and convincing explanation to alleged suspicious circumstances surrounding subsequent will – Brother of testator wanted to usurp property of testator for his personal benefit – First will seems to be unnatural being made under certain influence – Second will was natural being executed out of love and affection – Daughter-in-law of testator entitled to letter of administration. (Pt.A.K.Misra Vs Pt.Ram Chandra Sharma Trust) AIR 2003 Allahabad 96

Will – Inclusion of sirdari plots in Will – Does not indicate that there is something fishy about Will. (Jangi Singh & Anr. Vs Raghubir Singh Chauhan & Ors.) 2004(2) Civil Court Cases 636 (Allahabad)

Will – Interested witness – One attesting witness examined – Cannot be said to be an interested witness merely because he is mortgagee of the land in question and it is not a ground to discard his testimony as he will remain a mortgagee irrespective of the fact who gets the property. (Pritam Singh Vs Surjit Kaur) 2003(2) Civil Court Cases 501 (P&H) 

Will – Interpretation – Husband made owner of her property after her death and after his death sons made full fledged owners of property – Husband of testatrix cannot claim absolute ownership over property after her death – He does not have any authority to bequeath said property by way of Will – Will executed by him after death of his wife – Cannot be probated – Probate granted in favour of sons with regard to Will of testatrix. (Succession Act, 1925, Ss.74, 276) (Smt.Lakshmi Devi Vs State of Delhi) AIR 2002 Delhi 147

Will – Interpretation – In the matter of interpretation of wills, Court has to look at the wishes of the testator indicated therein and the intention of testator should be effectuated as far as possible. (Commissioner, Jalandhar Division & Ors. Vs Mohan Krishan Abrol & Anr.) 2004(1) Apex Court Judgments 466 (S.C.) : 2004(2) Civil Court Cases 124 (S.C.)

Will – Interpretation – Will providing for maintenance of family deity by ‘Santhanam’ of 2nd wife – ‘Santhanam’, includes only the natural and not the adopted children – Thus in the event of daughter of 2nd wife not begetting children, the right of management goes to the prodigee of lst wife. (Diyyala Gopala Krishna Murty Vs Pullagura Dhanalkshmamma) AIR 2003 A.P. 151

Will – Late production – Merely because there is some time gap between the death of executant and production of Will before Revenue Officer – Not a suspicious circumstance. (Pritam Singh Vs Surjit Kaur) 2003(2) Civil Court Cases 501 (P&H) 

Will – Legal heirs on the basis of Will are entitled to seek possession of the property on the death of the alienor. (Lakhmira Singh & Ors. Vs Amar Kaur & Ors.) 2005(1) Civil Court Cases 413 (P&H)

Will – Non reporting of Will to Revenue Patwari – Not a suspicious circumstance. (Santosh Kumari Vs Vijay Kumari) AIR 2002 H.P.103

Will – One attesting witness examined – Genuineness of Will not to be doubted because only one of the attesting wi