Legal News & Views

In INSPECTOR (MAHILA) RAVINA vs Union of India, the promotion of a (Mahila) Inspector GD in the Central Reserve Police Force (CRPF) was blocked since as per the Department she “had shown unwillingness to attend the promotional course‟. The Petitioner argued that she was in Stage III of her pregnancy and therefore could not attend the necessary courses. The main question which this court has to decide is whether the Petitioner’s pregnancy would amount to unwillingness or signify her inability to attend a required promotional course and if she is entitled to a relaxation of rules to claim seniority at par with her batchmates. The court allowed the petitioners plea by stating that ….to conclude that pregnancy amounts to mere unwillingness - as the respondents did in this case- was an indefensible. The choice to bear a child is not only a deeply personal one for a family but is also a physically taxing time for the mother. This right to reproduction and child rearing is an essential fa...

Valuation of goods for Customs duty should be done only at the time and place of importation and it should not be based on the bill of lading but on goods arriving in India. The Supreme Court rejected the argument of the Commissioner of Customs that the quantity mentioned in the bill of lading should be the basis of payment of duty, not the quantity actually received in this country. The Customs appellate tribunal had upheld the view of the Customs authorities, but the Supreme Court said that the tribunal had "lost sight of the first principles". It stated in its judgment, in Mangalore Refinery and Petrochemicals vs Commissioner of Customs, that the tribunal was wrong in holding that a levy in the context of import duty can only be on imported goods, that is, on goods brought into India from a place outside of India. Till that is done, there is no charge to tax. Explaining the law further, the judgment stated that the taxable event in the case of imported goods is "i...

The government must pay for the negligence of its officers and it cannot claim "sovereign immunity" like in the old days, the Supreme Court has stated while imposing compensation on the authorities who failed to register three fishing vessels, causing loss to owners. The vessels were bought by Sancheta Food Products in an auction. They had to be registered under the Merchant Shipping Act for taking them to the high seas for fishing. However, the officers were taking contrary stands regarding the rules applicable to the vessels, causing heavy loss to the firm. It sued the government in the Calcutta high court. It imposed compensation on the government for its "contradictory and dilatory" stands. The government appealed to the Supreme Court, which upheld the high court judgment. It elaborated on the "vicarious liability" of the state for the actions of its officers and diluted the immunity of the government in negligence cases. Citing earlier decisions rejec...

The Supreme Court last week stated that a government department must implement the industrial policy laid down by the government and should not devise its own policy, that too contrary to the Cabinet decision. The government must speak with one voice, the court stated in its judgment Llyod Electric & Engg Ltd vs State of Himachal Pradesh. "What is given by the right hand cannot be taken by the left hand," it remarked while allowing the appeal of the company holding that it was eligible for concessional rate in central sales tax. While the Cabinet had extended tax benefits up to 2013 for industrial units to attract investments, the department maintained that the company was not eligible for them as the notification was issued later and did not cover it. The high court upheld the interpretation of the department. Setting aside the judgment of the high court, the Supreme Court stated that the department cannot issue a notification contrary to the Cabinet decision on policy m...

In a case of fraud against a bank, the accused person cannot get away by 'settling' the criminal complaint by repaying the amount involved, the Supreme Court stated in the judgment, Central Bureau of Investigation vs Maninder. The complaint was that the accused person opened a current account in the name of a firm with Punjab National Bank in Ludhiana and got an advance. Later, the vigilance officer of the bank found that the bill of lading produced by him was forged. Therefore, Maninder was arrested and criminal prosecution was launched against him under the penal code provisions and the Prevention of Corruption Act. He moved the Delhi high court claiming that he had settled the affair with the bank after paying the amount and, therefore, the complaint should be quashed. The court did so. Therefore, the CBI filed an appeal. Allowing the appeal, the Supreme Court stated the high court should not have exercised its discretion to quash the complaint without adequate reason. ...

The government has discretion to cancel an auction sale due to valid reason like cartelisation or failing to fetch adequate price above the reserve price, but the reason should be transparent to the bidders. This rule was reiterated last week by Supreme Court in its judgment, Punjab State Leather Development Corporation vs M/s Bandeep Singh. Supreme Court incidentally took a decade to deliver its judgment dismissing the appeal of the state government and the corporation. The highest bidder had deposited the earnest money and 25 per cent of the bid amount and auction was confirmed. But for some reason, the corporation cancelled the sale and ordered re-auction. The bid money was also not returned, leading to a complaint before the high court. It found in favour of the bidder. The corporation appealed to Supreme Court, which upheld the high court judgment. The apex court said, "every decision of an administrative or executive nature must be a composite and self-sustaining one, in tha...

A two judge bench of the Supreme Court of India in Chief Controlling Revenue Authority v. Coastal Gujarat Power Ltd. (Civil Appeal No. 6054 of 2015 arising out of S.L.P. (C) No. 32319 of 2013) has set aside an order passed by the High Court of Gujarat on 3 December 2012 in Stamp Reference No. 1/2011, holding that a mortgage deed with security trustee to secure loans of multiple banks would be treated as distinct transactions and would be liable for stamp duty as if separate mortgage deeds were recorded for each bank The High Court had observed that the stamp duty is payable on the instrument and not the transaction. As per the High Court the instrument was a mortgage deed between a borrower (mortgagor) and a security trustee (mortgagee). It was the security trustee alone who had the power to enforce the mortgage and not the banks. The High Court observed that Section 5 cannot be construed to empower the State to levy duty on the transaction as opposed to the instrument and since ther...

A full bench of the Hyderabad High Court has made it clear that the writ of habeas corpus is the only remedy available against illegal detention of a citizen. The writ’s object is to secure the release of a person who is illegally deprived of his liberty, it has noted. “Liberty of a citizen is a precious right, which cannot be transgressed by any one, including the detaining authorities. A writ of habeas corpus is an effective and prompt remedy. The detenu or any other person on his behalf can file habeas corpus writ petition to show a prima facie case of his unlawful detention and ,if he succeeds in establishing before the Court, he is entitled to the writ of habeas corpus as of right.” The bench headed by acting chief justice Dilip B Bhosale has made the above observations while dealing with a question referred to it: “Whether a petition for a writ in the nature of habeas corpus, under Article 226 of the Constitution, can be entertained against the order of preventive detention p...

This is a fairly contentious issue as often sale conducted on "as is where is basis" goes into litigation due to lack of understanding or otherwise on both sides. Below are two judgments with different conclusions but helps reveal the problem 1) Gurpreet Singh Ahluwalia vs. District Magistrate Dehradun & Ors. - Uttarakhand HC Bank takes possession of borrower's property and issues auction notice for sale of properties so possessed. The successful bidder pay part of the money and request the Bank to demarcate the property so that sale deed may executed and physical possession handed over. The Bank did make several representation to the concerned authorities to demarcate the property. That did not happenand the Bank instead of pursuing the demarcation proceedings with the Revenue Authorities called upon the successful bidder to make balance payment failing which deposit amount was informed to be liable for forfeiture. The bidder due to failure of revenue authoriti...

Stock market regulator Securities and Exchange Board of India (SEBI) does not have locus to intervene in a Scheme Petition under Sections (391 and 394) of Companies Act, the Bombay High Court has held in a recent judgment by Justice Kathawalla. Sections 391 and 394 of the Companies Act deal with issues relating to merger, amalgamation, restructuring of companies. SEBI had applied to the Bombay High Court to set aside the High Court’s earlier order sanctioning a scheme of arrangement and amalgamation in a matter relating to Ikisan Ltd and Kakinada Fertilizers . SEBI had contended in its application that a fraud had been perpetrated on the Court by suppression and/or misrepresentation of facts and documents relating to the court sanctioned composite scheme between Kakinada Fertilizers, erstwhile Nagarjuna Fertilizers and Chemicals Ltd (NFCL), Ikisan Ltd and Nagarjuna Oil Refinery Ltd (NORL). Under this composite scheme, the oil business of the erstwhile NFCL was demerged into NORL an...

Whether a defendant in a suit for partition can be permitted to withdraw an admission made in the written statement after a pretty long period, is the issue arising for consideration in these cases. IN Ram Niranjan Kajaria vs Sheo Prakash Kajaria & Ors on 18 September, 2015, Defendant No. 5 & !2, has come back after 15 years to amend their statement made in 1979. Though the court rejected their application, the said rejection was not because of the long delay but on merit and also went on to frame some important references on this issue of amendment & limitation which till now invariably appears to draw different conclusions from different courts. The court referred to Revajeetu Builders and Developers v. Narayanaswamy and Sons and others[5], after referring to Gautam Sarup, where it has been stated :- “63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the ...

Does the assignor/seller loose his/her interest in an ongoing suit because of the assignment/transfer ? This issue came up in an appeal before the Hon'ble Supreme Court in Sharadamma vs Mohammed Pyrejan(D) Tr.Lrs.& Anr on 23 September, 2015. The facts, in brief, indicate that Sharadamma, plaintiff-appellant had filed Original Suit No.6020 of 1998 on 5.8.1998 for the purposes of declaration of title and for restoration of possession on the strength of registered sale deed dated 10.11.1965. The plaintiff had also claimed a sum of Rs.3,000/- towards past damages and a further sum of Rs.20/- per day as continuing damages. The suit was dismissed by the trial court against which the plaintiff had preferred regular first appeal before the High Court. The same has been dismissed on the aforesaid ground by the impugned judgment and order.Subsequently she had released her interest in the suit property in favour of her daughter Smt. Padmavathi on 11.4.2011 and said Padmavathi, in turn...