Legal News & Views

In an important judgment, the Supreme Court has upheld election of Mr. Mohammed Sadique from a constituency reserved for Scheduled Castes in Punjab by setting aside the High Court judgment which had invalidated the same. Dismissing the Election petition which was allowed by the High Court, the Supreme Court Bench comprising of Justices Ranjan Gogoi and Prafulla C. Pant has reiterated that a person can change his religion and faith but not the caste, to which he belongs, as caste has linkage to birth. Article referred: http://www.livelaw.in/person-can-change-religion-faith-not-caste-belongs-caste-linkage-birth-sc/

The Himachal Pradesh High Court in a recent judgment said that the private institutions cannot be permitted to operate like money minting institutions, the innocent people of this State cannot be allowed to be duped any further, observed the High Court of Himachal Pradesh which directed the Government to investigate all the private Educational institutions in the state and to ensure that no one is allowed to charge fee towards building fund, infrastructure fund, development fund etc. Note: This judgment has all the trappings of a landmark one provided there is a political will behind it and may become a precedent for other states. Article referred: http://www.livelaw.in/pvt-educational-institutions-cannot-allowed-create-business-empires-charging-exorbitant-fees-himachal-pradesh-hc/

The Supreme Court M.K. Indrajeet Sinhji Cotton Pvt Ltd. Vs. Narmada Cotto Coop. Spg. Mills Ld. & Ors has held that Registrar of Cooperative Societies has no jurisdiction to decide whether the suit is tenable for want of notice or not. Apex Court Bench comprising of Justices S.A. Bobde and Amitava Roy observed that that a question whether a suit is tenable under Section 167 of the Co-operative Societies Act for want of notice under the said provision is a question within the exclusive competence of a Civil Court. A company was refused permission to continue the suit filed by it before the City Civil Court, Ahmedabad by the Registrar of Co-operative Societies on the ground that the suit is not tenable because notice of its institution required by Section 167 of the Gujarat Co-operative Societies Act, 1961. Though the Single Bench of the High Court quashed the order of Registrar, the Division Bench on appeal restored that order. The company approached Apex Court. Article referred: h

Every Internal Complaints Committee constituted under the provisions of Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013 has to follow the principles of Natural Justice in conducting their enquiry, said the Court. Kerala High Court in L.S Shibu v Air India Limited &others has held that every internal complaints committee constituted under the provisions of Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013 has to follow the principles of natural justice in conducting their enquiry. A complaint alleging sexual harassment was leveled against the petitioner.The copy of the enquiry report was not given to the petitioner. The respondent Air India took a contention that when a prima facie case is made out against the petitioner based on the report , he could have right to challenge /defend himself in the disciplinary proceedings initiated subsequently. In other words , the respondents contended that report

Dilip Manhar Parekh vs. DCIT (ITAT Mumbai) The demolition of a structure does not amount to a "transfer". It is not correct to contend that Vania Silk Mills 191 ITR 647 (SC) is overruled by Grace Collis 248 ITR 323 (SC). Lower authorities cannot refuse to apply binding High Court judgements on the basis that the High Court has not considered a Supreme Court judgement

CIT vs. Ramaniyam Homes P Ltd (Madras High Court) The High Court had to consider whether the amount representing the principal loan amount waived by the bank under the one time settlement scheme which the assessee received during the course of its business is exigible to tax. The department contended that the waiver of principal amount constituted income falling under Section 28(iv) of the Income Tax Act being the benefit arising for the business. HELD by the High Court accepting the department’s contention.

In a recent judgment in M/s Boorugu Mahadev & Sons Vs Sirigiri Narasing Rao, the Hon'ble Supreme Court clarified that It is also now a settled principle of law that the concept of ownership in a landlord-tenant litigation governed by Rent control laws has to be distinguished from the one in a title suit. Indeed, ownership is a relative term, the import whereof depends on the context in which it is used. In rent control legislation, the landlord can be said to be the owner if he is entitled in his own legal right, as distinguished from for and on behalf of someone else to evict the tenant and then to retain control, hold and use the premises for himself. What may suffice and hold good as proof of ownership in landlord-tenant litigation probably may or may not be enough to successfully sustain a claim for ownership in a title suit. (vide Sheela & Ors. vs. Firm Prahlad Rai Prem Prakash, (2002)

The Supreme Court in Prakash Nagardas Dubal Shaha vs. Sou Meena Prakash Dubal Shahhas has held that unsuccessful divorce proceedings cannot adversely affect the maintainability of application filed under the Domestic Violence Act. Division Bench comprising of Justices Dipak Misra and Shiva Kirti Singh made this observation in an appeal filed by the Husband against the order of High Court which had held that his wife was entitled to seek maintenance from him. By way of maintenance the Magistrate had fixed Rs. 5,000/- per month for the wife, same amount for the daughter and Rs. 4,000/- for the minor son, which was later upheld by the High Court. Article referred: http://www.livelaw.in/unsuccessful-divorce-proceedings-cannot-adversely-affect-maintainability-application-filed-domestic-violence-act-sc/

Full Bench of Bombay High Court has held that if the possession is taken before the Section 4(1)of the Land Acquisition Act is published and/or before the award is passed, the land­ owner would been titled for interest as per Section 34 necessarily from the date of passing of the award under Section 11 of the said Act, except in cases where the possession is taken in accordance with Section 17 of the said Act, and in that situation only, the provision of Section 34 of the said Act shall start operating from the date of possession. Article referred: http://www.livelaw.in/bombay-high-court-summarizes-law-land-acquisition-awards/

No compassion can be shown to a person who has no will to work, the Delhi High Court has observed while upholding a termination order against a clerk of District Court who was accused of absenting herself from duty frequently. One Suman Taneja, who was working as Lower Division Clerk in the office of District Court had approached the Delhi High Court against the termination order passed against her. Perusing the records, the Court observed that the petitioner was not performing her duties with due diligence and she was found guilty of taking unauthorized leaves and she has failed to show that the leaves that were taken by her were sanctioned by the respondents. Thus, it is clear that the petitioner has decided at her own will when to take leave and when to report for duty, Justice Ved Prakash Vaish said Article referred: http://www.livelaw.in/no-compassion-can-shown-person-no-will-work-delhi-hc/

The Patna High Court in All India Students Federation vs. State of Bihar, has observed that lack of adequate attendance must not be read as exclusive circumstance for debarring a student from taking his examinations and only when it is coupled with other circumstances, showing a general derelict behaviour, may be proper reason for debarring. The Court also directed the Principal of Patna Women’s College and Vice Chancellor of Patna University to condone the attendance shortage of all those students, who have inadequate attendance to the extent of 60%. Article referred: http://www.livelaw.in/lack-adequate-attendance-not-read-exclusive-circumstance-debarring-student-taking-exams-patna-hc-db/

The Supreme Court in Axis bank vs. SBS Organics Private Limited has held that the partial deposit before the Debt Recovery Appellate Tribunal (DRAT) as a pre-condition for considering the appeal on merits in terms of Section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act), is neither a secured asset, nor a secured debt, and hence refundable to the appellant on disposal of appeal. Apex Court Bench comprising of Justices Kurian Joseph and R.F. Nariman made this observation while dismissing an appeal filed by Axis Bank against the Gujarat High Court Judgment wherein it was held that the deposit made before DRAT is refundable to the appellant therein. Article referred: http://www.livelaw.in/partial-deposit-drat-neither-secured-asset-secured-debt-refundable-appellant-disposal-appeal-sc/

A single Judge of the Kerala High Court in Lonankutty Antony@ T.V.Antony v The Joint Registrar of Co operative Societies and others [W.P(C )No:2527/2015] has ruled that a banker cannot exercise a general lien over the property owned by the husband, for the liability incurred by the wife, in the absence of any express or implied consent thereto. Article referred: http://www.livelaw.in/banker-cannot-exercise-general-lien-property-owned-husband-liability-incurred-wife-kerala-hc/

Allahabad High Court recently held that parties may withdraw their consent once granted for Divorce by mutual consent, at any time before the passing of the decree. Hindu Marriage Act, 1955 provides two modes for divorce namely (i) on the grounds mentioned under Section 13 of the Act or (ii) on mutual consent for which a petition has to be presented by both the parties to the marriage and after interregnum period of six months they again attorn their consent before the Court. Article referred: http://www.livelaw.in/parties-can-withdraw-consent-divorce-granted-time-passing-decree-allahabad-hc/

Awarding Rs 51.75 lakh to a married woman for the accidental death of her brother, a Motor Accident Claims Tribunal has held that legal heirs, even if not dependent on the deceased, are eligible for compensation. ........ After hearing both the parties, Thane Additional Sessions Judge and Motor Accident Claims Tribunal member P R Kadam observed that the claimant’s advocate, S V Patkar, submitted that under MV Act section 166, where the death has resulted from the accident, the claim can be preferred by all or any of the legal representative of the deceased. This provision does not speak about dependents, but about legal representative of the deceased. All or any of the legal representative of the deceased can prefer claim petition before the tribunal, irrespective of he/she or they being dependent or not dependent on the deceased, he noted. In absence of class-I heirs of the deceased, married daughter/sister is entitled to claim compensation even though she may be staying separat

When there is a labour dispute in a central government undertaking, the state government where it is situated can refer the issues to a labour court there according to its law. It is not essential that the central government should refer it according to the Industrial Disputes Act, the central law, the Supreme Court stated when a dispute arose between the workers of Hindustan Aeronautics Ltd (HAL) in Nashik, Maharashtra, and the central undertaking. Article referred: http://www.business-standard.com/article/opinion/labour-rows-in-central-govt-undertakings-116031300688_1.html

 In a landmark judgment, the Supreme Court has ruled that a man is legally entitled to nominate his married daughter to own his cooperative society flat after his death, depriving his wife and only son. The West Bengal Cooperative Societies Rules, 1987, stipulate that the owner of a flat in a cooperative society can nominate his house in favour of a person "belonging to his family". Article referred: http://timesofindia.indiatimes.com/india/Father-can-give-property-to-married-daughter-Supreme-Court-says/articleshow/51918018.cms

Recently, the Delhi High Court had an occasion to examine the taxability of a sum of money received by a professional journalist from a foreign publisher as compensation upon termination of contract (in the matter of CIT vs. Sharda Sinha). The journalist had been working in India exclusively for a German news magazine for almost 23 years. During the time he was working with that magazine, he was paid a flat honorarium in addition to further payments for any published contribution. The news magazine decided to terminate the contract with him. Due to loss of work place and consideration of long time association, the German magazine paid him a compensation of 3,00,000 Deutsche Mark, that is, approximately Rs 54 lakh. ........... The HC also referred to a couple of Supreme Court (SC) decisions in similar circumstances wherein the SC had held that where a compensation is paid for termination of an arrangement which was in vogue for a fairly long period of time, the compensation has to b

An alleged encroacher of public property cannot challenge an internal communication between two government officials on the issue just because a copy of it had been marked to him too, the Madras High Court Bench here has held. Justices S. Manikumar and C.T. Selvam passed the order while dismissing a writ petition filed by a private school at Guntur village in Tiruverumbur Taluk of Tiruchi district challenging a letter written by a Tahsildar directing a Block Development Officer to act against encroachments. Stating that the school could approach the court only when the revenue officials initiate action against it under the relevant enactments, the judges said that a communication sent by one official to another could not be challenged by way of a writ petition. Article referred: http://www.thehindu.com/news/cities/Madurai/internal-communications-cannot-be-challenged-hc/article8473594.ece

The Supreme Court in Standard Chartered Bank vs. State of Maharashtra has reiterated that a Director cannot get a Section 138 Negotiable Instruments Act complaint against him quashed under Section 482 of Code of Criminal Procedure, merely on the ground that apart from the basic averment no particulars are given in the complaint about his role In this case, the High Court had quashed the summons issued to director and other officials of a company, which had issued cheques to the bank which were dishonoured, singularly on the ground that there are no allegations against them connecting them with the affairs of the Company. The Bank preferred the appeal before Apex court. Article referred: http://www.livelaw.in/dishonour-cheque-complaint-officials-company-cannot-quashed-merely-ground-apart-basic-averment-no-particulars-given-complaint-role-sc/

The National Consumer Dispute Redressal Commission has held that vehicles carrying passengers in excess of its capacity, cannot claim own damage insurance cover. The Bench comprising of Justices Ajit Bharihoke and Rekha Gupta upheld the State Forum view that in an own damage claim case, defense of overloading is available to the insurer. In this case, the District Forum had allowed the own damage claim against the insurer by the bus owner. But on appeal, the State Consumer Dispute Redressal Forum [Read order] had observed that there is ample material on record to show that the bus having seating capacity of 35+1 was carrying passengers much in excess of its capacity, and hence in these circumstances if the claim is not paid by the insurer it cannot be said to be deficiency in service. In third party cases defense of overloading might not be available but this is an Own Damage case and a person cannot be permitted to take advantage of his own wrongs, the Forum had said. Article referr

A three judge bench of the Hon'ble Bombay High Court (Bombay HC) in a recent judgment in the matter of Chief Controlling Revenue Authority, Maharashtra State, Pune and Superintendent of Stamp (Headquarters), Mumbai v Reliance Industries Limited, Mumbai and Reliance Petroleum Limited, Gujarat1 has held that orders in case of a scheme of arrangement under Section 391 to 394 of the Companies Act, 1956 (Act) involving different High Courts in multiple states, are separate instruments in themselves. Accordingly, stamp duty would be payable on all the orders (and consequently, all the states) without the benefit of remission, rebate or set-off.

DCIT vs. Fritz D. Silva (ITAT Mumbai) S. 48: Interest on borrowed money utilized for acquiring shares can be capitalized as cost of acquisition The controversy before us is as to whether the interest paid by the assessee on loans taken for acquiring the shares in the past can be allowed as a deduction u/s 48 as cost of acquisition while computing capital gain on sale of such shares.  ..... Therefore, having regard to the factual findings of the CIT(A), in our view, the legal position as propounded by the Hon’ble Madras High Court in the case of Trishul Investments Ltd (supra) supports the plea of the assessee that interest paid for acquisition of the shares would partake the character of cost of shares and, therefore, assessee had rightly capitalized the interest along with the cost of acquisition for the purpose of computing capital gains.

The Madras High Court Bench here has disapproved of the practice of courts sympathising with people who purchase land earmarked for public purposes, such as schools and parks in approved residential plot layouts, construct buildings and then seek regularisation of the unauthorised constructions. In a judgment reserved here and delivered in the Principal Seat of the High Court in Chennai, a Division Bench of Justices V. Ramasubramanian and N. Kirubakaran said: “The history of unlawful constructions in the State of Tamil Nadu presents a very depressing picture, encouraged by repeated ordinances allowing regularisation of unauthorised constructions. Article referred: http://www.thehindu.com/news/cities/Madurai/hc-slams-regularising-unauthorised-constructions/article8463666.ece

The Gujarat high court has said that in cases involving charges of rioting, all the members of a mob should be held responsible for offences committed by any one of them. The observation came during a hearing on a nearly 13-year-old case of murder, dacoity and rioting in Ahmedabad's Shah-e-Alam area. Article referred: http://timesofindia.indiatimes.com/india/All-in-a-riot-mob-equally-guilty-Gujarat-high-court-rules/articleshow/51887382.cms

Holding that mere phonetic similarity is not sufficient to warrant judicial interference, the Bombay high court did not grant relief to owners of the London Dairy brand of ice cream who alleged trademark infringement by Indian candy-making company Parle Products. Article referred:

A driver who was sacked by a private school in 2003 has secured a judgment from the Supreme Court forbidding recognised schools in Delhi from dismissing any employee, including teachers, without "prior approval" of the director of education. Article referred: http://timesofindia.indiatimes.com/city/delhi/Private-schools-need-Delhi-govts-nod-to-fire-teachers-rules-Supreme-Court/articleshow/51870548.cms

A two Judge Bench of the Supreme Court of India Today held that it may not be possible to strictly enumerate as to who all will have locus to maintain an appeal before the Supreme Court invoking Article 136 of the Constitution of India, it depends upon the factual matrix of each case, as each case has its unique set of facts. Article referred: http://www.livelaw.in/can-private-party-locus-file-appeal-supreme-court-invoking-article-136-constitution-india-2/

In Sellar-Elliott v Howling [2016] EWHC 443 (QB) permission to appeal against an interim payment order of £100,000 was refused in a clinical negligence case where causation was in dispute.  This is an important case for clinical negligence practitioners dealing with such applications prior to exchange of medical evidence. Article referred: http://www.cloisters.com/latest/interim-payments-in-the-clinical-negligence-context

Kerala High Court has declared that an Arbitral Tribunal cannot pass an order to enforce its order by directing the Advocate Commissioner/Receiver to repossess the vehicle from the opposite party. Justice A. Muhamed Mustaque observed that enforcement can be only through a civil court. Some vehicle owners who had availed loan from financiers had approached the High Court complaining that the interim order of repossession passed by the Arbitral Tribunal is enforced/being attempted to be enforced without putting the orders for enforcement, following the procedures under the Code of Civil Procedure. The Tribunal had ordered appointment of an Advocate Commissioner/Receiver to repossess the vehicle either directly or with the assistance of police. Article referred: http://www.livelaw.in/arbitral-tribunals-cannot-enforce-orders-kerala-hc/#rssowlmlink

Patna High Court has held that death of a passenger due to falling down while trying to enter into train, is compensable under Section 124A of Railways Act. Justice Aditya Kumar Trivedi in Juweda Khatoon vs Union of India, referring to an Apex Court Judgment, said that Railways Act being a beneficial piece of legislation should receive a liberal and wider interpretation and not a narrow and technical one. Article referred: http://www.livelaw.in/death-passenger-due-falling-trying-enter-train-compensable-section-124a-railways-act-patna-hc/

Gujarat High Court has held that a Court cannot direct the sanctioning authority to reconsider the issue of grant of sanction. Justice J.B. Pardiwala allowed a special criminal application filed by a Policeman accused of Police Inspector accused of demanding illegal gratification, seeking to quash the order wherein the Sessions Judge rejected the report filed by the A.C.B. under Section 169 of the Code of Criminal Procedure, 1973, and proceeded to take cognizance against the petitioner for the offence punishable under Sections 7, 12, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988. Article referred: http://www.livelaw.in/court-cannot-direct-sanctioning-authority-reconsider-issue-sanction-prevention-corruption-act/

Justice V. Chitambaresh of Kerala High Court has on Thursday(31/03/16) held that the practice of insisting a student to undertake the entire examinations for a mere failure in a single theory / practical exam is unreasonable and arbitrary. The mental anguish which a student has to face in the event of his losing a theory or practical by marginal marks necessitating re-appearance for all the papers in theory and practical in order to secure a pass is unimaginable”said the Court Article referred: http://www.livelaw.in/necessitating-students-repeat-exams-failing-one-paper-arbitrary-unreasonable-kerala-hc-read-jt/

Delhi High Court in Joginder Singh vs. State has observed that keeping a criminal case pending for indefinite period amounts to violation of constitutional rights of the accused recognized under Article 21 of the Constitution of India. Quashing the criminal cases against the accused which were pending since 1998, Justice Suresh Kait said “The petitioner is facing the trial since 1998 although there is no delay on his part. More than 17 years have already been passed”. Article referred: http://www.livelaw.in/keeping-criminal-case-pending-indefinite-period-amounts-violation-constitutional-rights-accused-delhi-hc-read-order/

Supreme Court in Raghavendra Swamy Mutt vs. Uttaradi Mutt has held that, solely because the Court has the jurisdiction to pass an ex parte interim order, it does not empower it not to formulate the substantial question of law for the purpose of admission, defer the date of admission and pass an order of stay or grant an interim relief. Apex Court Bench comprising of Justices Dipak Misra and Shiva Kirti Singh dismissed an appeal against Karnataka High Court order vacating its own interim stay order in a second Appeal. The Court observed that appeal under Section 100 CPC is required to be admitted only on substantial question/questions of law and it cannot be formal admission like an appeal under Section 96 CPC. The Bench observed that for passing an ex parte order the Court has to keep in mind the postulates provided under sub-rule (3) of Rule 5 of Order XLI and it is obligated to keep in view the language employed under Section 100 CPC. Article referred: http://www.livelaw.in/interim

The High Court of Kerala has ruled that resorting to strong arm tactics to recover loans by Banks and other Financial Institutions is unlawful The court was considering an appeal filed by a recovery agency against a nationalized bank [Smart security secret service agency v State Bank of India (R.S.A No:46/2011)]seeking payment of commission duty for its assistance, towards a loan recovery. It was averred that the bank refused pay the charges, after a borrower had voluntarily settled the matter. The appellant relied on the agreement clause with the bank which mandated commission duty on every recovery duty assigned to it. The lower court allowed the plea of the appellant, which was reversed the appellate court. Hence he approached the High Court. Article referred: http://www.livelaw.in/engaging-musclemen-recover-loans-unlawful-kerala-hc/

When the cheque is delivered for collection through an account, the complaint is to be filed before the Court where the branch of the bank is situated, where the payee or the holder in due course maintains his account and, secondly, when the cheque is presented for payment over the counter, the complaint is to be filed before the Court where the drawer maintains his account, Held the Court Article referred: http://www.livelaw.in/dishonour-cheque-gujarat-high-court-explains-law-relating-territorial-jurisdiction-post-2015-ni-act-amendment-read-jt/