Tag: #recentjudgement

-Report by Mushkan Vasani 

Bombay High Court while hearing the writ petition on 24^thFebruary, 2023 in the case of Municipal Corporation of Greater Mumbai (Petitioner) Versus Union of India & Ors (Respondents) allows the writ petition subject to compliance of conditions. 

FACTS:

In the present case, the Petitioner is seeking permission for the execution of the proposed project of a suction tank for providing water supply (basic necessity) to the citizens of Gorai Village who are facing a shortage of water supply in their vicinity. The project is being developed on the land owned by the State Government and the said project is partly affected by the mangrove buffer zone area. 

Respondents no. 1-5 have granted sanction and NOC subject to no destruction to the mangroves due to construction and subject to the permission of this Hon’ble Court for construction in the mangrove buffer zone. The Respondents have also reserved their rights concerning revocation and suspension of sanctions granted in case of non-compliance with conditions. Another clause concerning a fresh application/proposal is to be filed by the petitioners in case of alteration/ deviation of the proposed project.  

The Respondents stated that all the sufficient safeguards in respect of environmental protection in the due course of construction and until completion of the project be taken into consideration. 

PETITIONER’S CONTENTIONS:

The petitioner contended before this hon’ble court to permit them to execute the proposed project.

RESPONDENT’S CONTENTIONS:

The respondents (except Respondent no. 6) agreed on the permit subject to compliance with the conditions mentioned in the sanction. However, Respondent no. 6 contended that the proposal should not differ from the actual work and stay be granted. 

JUDGEMENT:

The Hon’ble Court after hearing all the facts in the present case allowed the writ petition for the public interest on the following grounds :

1. The petitioners are to apply for fresh permission in case of alteration/deviation in the proposed project.

2. Undertaking by a responsible officer of the Petitioner concerning compliance of all the conditions in sanction granted be filed within 1 week from the date of this order i.e 24^th February, 2023, and copy to be served to the Respondents.

3. IA no. 4655 of 2022 stands disposed of.

4. Rejected the stay applied by Respondent no. 6 at this stage of the matter.

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-Report by Pranav Mathur

The Gwalior Bench of the Madhya Pradesh High Court, on the 10th of February 2023, in the case of Narendra v. State of Madhya Pradesh, upheld the conviction of murder under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as the “IPC”) given to the present appellant. The date of the judgment given by the Trial Court was the 11th of October 2012, and the appellant was sentenced to undergo rigorous imprisonment with the submission of a fine.

FACTS:

The appellant was a son born out of the confines of marriage. After the demise of his father, his mother remarried, and eventually passed away. Subsequently, his stepfather solemnized his marriage with another woman, who is the complainant represented by the respondent in the present appeal. The appellant wanted to sell his father’s land in a village, and would therefore frequently ask his step-father to execute the sale, only to be advised against it. One fateful night, after dinner, when the appellant went to sleep with his stepfather, the complainant woke up to the sound of the appellant assaulting his stepfather with an axe, eventually killing him. Due to the gathering of people caused by her screams, the appellant ran away, and a complaint against him was filed the next day. The appellant abjured guilt and signified his willingness to go to trial. He was eventually charged with murder by the Trial Court.

APPELLANT’S CONTENTIONS:

The appellant contended that the Trial Court erred in appreciating the evidence in the case. It was further argued that the prosecution in the Trial Court failed to establish various key events that led to the appellant’s conviction. The complainant admitted during her cross-examination in the Trial Court that there were no sources of light to properly ascertain the face of the appellant and his alleged acts. It was further argued that no human blood had been found on the axe when it was seized from the appellant, and in conclusion, the appellant contended that the prosecution had failed to prove the case beyond a reasonable doubt.

RESPONDENT’S CONTENTIONS:

Placing reliance on the competence of the Trial Court, the respondent contended that due care and attention had been given to the evidence on record, and was only then appreciated by the Court. They mainly argued that the statements given by the complainant and other spot witnesses were in perfect sync with each other, and therefore the case had been proven beyond a reasonable doubt.

JUDGMENT:

The Court took into consideration the group of witnesses examined by the prosecution. It carefully took into consideration the post-mortem report submitted by the concerned medical officer, and based on those facts, concluded that the death was homicidal in nature. The appellant did not challenge the medical report, and the statements of the witnesses, which painted the entire scenario, based on which the Court, also taking cognizance of the number and nature of wounds caused, concluded that it was an act of murder with the intention to do as well. The Court, after taking into consideration the examinations and the cross-examinations of the witnesses, and the objections raised against them, concluded that the version given by the complainant cannot be said to be unbelievable. The Court opined that the deceased was last seen alive with the appellant himself, and the appellant has not been able to give valid reasons for the injuries that the deceased sustained, which further supported the claim of the petitioner.

As held in the case of Gosu Jairami Reddy and Anr. v. State of A.P., when direct evidence for an alleged crime is available, there is no need to search for the motive. Based on this principle, the High Court concluded that the Trial Court made no error in law while convicting the appellant for murder under Section 302 of the IPC. The Court, therefore, upheld the decision of the Trial Court, however, since the period of life imprisonment in default of payment of the fine wasn’t mentioned, the Court modified the punishment from life imprisonment and a fine of twenty thousand rupees to just the term of life imprisonment. The judgment of the Trial Court was therefore affirmed with the aforesaid modification.

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-Report by Arun Bhattacharya

In the matter of M/S WELL PROTECT MANPOWER SERVICES PVT. LTD. versus DELHI DEVELOPMENT AUTHORITY & ANR the High Court of Delhi on Wednesday 22^nd of February, reiterated the fact “it is now well settled that the power to blacklist the contractor is inherent in the party allotting the contract”. 

FACTS:

The petitioners were successful bidders regarding an e-tender floated by the respondent which dealt with engaging security guards and security personals for a period of one year. Agreement was signed between the parties and according to its terms a 2015 work order was to be followed in the present matter too but issue arose when a show cause notice was issued against the petitioners alleging a failure of submission of necessary training certificates thus violating the Private Security Agencies (Regulation) Act, 2005. With such allegations of the forefront, the petitioner had requested back the deposit money from the respondents along with a request to not take any action related to blacklisting or restraining them from further bidding. But the respondents had issued an order thereby blacklisting the petitioners who in turn filed the present writ petition challenging the same. 

PETITIONER’S CONTENTION:

The petitioner primarily highlighted the non-necessity of providing such training certificates with respect to the aforementioned work order and that the principles of Natural Justice was violated by the respondents while debarring the petitioners from further biddings. More so, the petitioner expressed dissatisfaction regarding the arbitrary and disproportionate decision to bar them for a period three years.

RESPONDENT’S CONTENTION:

The respondents while refuting all the claims of the petitioners stated that the requisite of training certificates were mandatory and perfectly in compliance with law prescribed and the work order provided. It was highlighted that the decision of blacklisting was taken on the basis of repeated failures on part of the petitioner who was unable to justify their position even after receiving repeated opportunities. Thus a breach of such contractual obligations was enough to justify their stand of debarring the petitioner.

JUDGEMENT:

The honorable court referring to multiple decisions like M/s Erusian Equipment & Chemicals Ltd. Vs. State of West Bengal and Another (1975) 1 SCC 70 and Joseph Vilangandan v. Executive Engineer (PWD) [(1978) 3 SCC 36] reiterated the stand taken by the Supreme Court that power to blacklist any party remains with the person providing such contract and that such decision of blacklisting shall remain beyond the purview of appellate judicial authorities, except in circumstances when the principles of natural justice are violated. The honoroble  court highlighted the inability or noncompliance on part of the petitioner regarding non submission of certificates which was a requisite according to law prescribed but also pointed out the arbitrariness on part of the respondents regarding the debarment of the petitioners for a period of three years. Such debarment could only have arisen in cases of grievous offences as prescribed by the Ministry of Finance. Therefore referring to certain other judgments by the same court, the Delhi High Court quashed the impugned order and disposed of the petitioner making room for fresh inquiry regarding the same matter. 

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-Report by Arun Bhattacharya

The Supreme Court of India on Thursday 23^rd of February, 2023 had to resolve a bizarre case of appeal by a by a mother who had allegedly strangulated her five-year old child in desperation and desire to live separately. The aforementioned matter has been dealt in VAHITHA versus STATE OF TAMIL NADU. 

FACTS:

A wife having to live without her husband finds herself in desperate need to live separately and not with her mother-in-law. Out of desire to remove the only obstacle in her way of liberation that in this case happens to be her five-year old child, strangulates and murders the child causing asphyxia. Trial court had found the woman to be guilty under the offence of Murder and sentenced her accordingly. Thehonourable High court also reiterated the stand taken by the lower court hence being aggrieved by the same; she filed the present appeal under a Special Leave Petition before the apex court of the nation.

APPELLANT’S CONTENTION:

The appellant highlighted many of the discrepancies in the prosecution’s case specifically focussing on the fact that there was no motive for the appellant to commit such a heinous act. (Here it must be noted that motive is something which prompts a person to take action, intention is the act done in order to achieve the motive and knowledge is merely the awareness of the consequences of such acts.) Appellant tried to establish her plea of alibi as to the absence of her during the death of the child and that she was elsewhere with her fatherand was arrested at the bus stand while she was returning after hearing the news of her child’s demise. 

RESPONDENT’S CONTENTION:

The prosecution/respondents clarified that the evidences were satisfactory as to prove the guilt of the appellant beyond reasonable doubt and since it was established by the witnesses that the appellant was the person with whom the deceased child was last seen, the conviction by the learned Trial Court and the High Court was justified.

JUDGEMENT:

The Apex Court while referring to the guidelines as enshrined in Sharhad Bidhichand Sharda analysed the matter on the basis of circumstantial evidences rejected the plea of alibi by the appellant citing clear contradictions in the testimonies of the hostile witnesses and upheld the prosecution’s argument regarding motive of the appellant as to the desire to live separately.

Thus upholding the decision taken by the learned Trial Court and the honourable High Court, the Apex Court dismissed the appeal.

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-Report by Shreya Gupta

The petition and respondent in this case is SMT. SUNITA GARG and M/S SCRAFT PRODUCT P LTD respectively. The case arose due to the arbitration clause in the lease agreement.

FACTS:

The present case has been filed under Section 11 of the Arbitration and Conciliation Act, 1996 in order of appointment of an arbitrator. The dispute has risen between them due to a lease deed according to which the petitioner is the owner of the property and the respondent is the tenant. The tenant had approx. 25000 sq. feet on ground floor, 25000 sq. feet on first floor, total area 50000 sq. feet which also included the mezzanine floor sides, washroom and rooms at the back, genset panel and the sundry assets area etc. at a monthly rent of Rs. 8,00,000/- exclusive of all other charges.

PETIONER’S CONTENTION:

The petioner contended that the respondent is a defaulter in payment of rents and he is required to pay arrears of rent amounting to Rs.29,49,350/-.

RESPONDENT’S CONTENTION:

The respondent contends that the clause 25 in the lease deed does not constitutes an arbitration agreement rather it states an alternative to reach to the Delhi high court. He also draws attention to the clause 27 of the agreement. He contends further that when cluse 25 is read with clause 27 it gives the option to either invoke arbitration or to approach a civil court for getting the leased premises vacated in the event of any violation or infringement on the part of the lessee, whereas, for the purpose of the claims of the respondent, no such option has been given. He further takes support of the previous judgements of Wellington Associates Ltd. vs. Kirti Mehta and Shri Chand Construction and Apartments Pvt. Ltd and Ors. Vs. Tata Capital Housing Finance Ltd.

JUDGEMENT:

The court stated that “ the contention of learned counsel for the respondent that Clause-25 in the said lease deed gives an option to the petitioner/lessor to either take recourse to the arbitration or pursue her remedies in a court of law, is misconceived and is based on a misreading of the Arbitration Clause. The clause unambiguously provides that any disputes arising with regard to “interpretation and/or implementation of terms and conditions of this deed the same shall be referred to an arbitrator under the Arbitration and Conciliation Act, 1996, whose decision shall be final and binding on both the parties‖. The later part of the clause i.e., the words “and/or the same may be defended subject to Delhi Court Jurisdictions only”, are evidently, intended to convey that any decision of the arbitrator would be subject to jurisdiction of the Delhi Courts. The Clause cannot be construed as giving an option to any party to either take recourse to arbitration or alternatively, file a civil suit.” The court stated that the reliance placed on the previous judgements is completely misconceived. The court appointed Mr. Vikas Gupta as the sole arbitrator in this case.

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Neutral Citation Number: 2023/DHC/001285                    

-Report by Tannu Dahiya

The Delhi High Court on Wednesday while hearing the petition rejected the application made for compassionate appointment in the case of Union of India and Ors. Vs. Umesh Kumar.

Facts:

The facts of the case are, the respondent is the son of the late Bishan lal, a safaiwala, who died in 2008 while serving the petitioner. The Board of Officers while considering the request of the respondent recommended the grant of compassionate appointment. As per the recommendations he was to be appointed as safaiwala in Group D. He was informed that his name was under consideration and was asked to reply if he was willing to do the same. There were five vacant posts for safaiwala. He submitted his willingness.

Now in his plea before the tribunal, in 2019, the respondent claimed that he was informed that his application is rejected and he will not be considered again for the appointment. Now the respondent claimed that his family was in a good condition as per the screening of the Board officers. Further, he secured 66 marks while the cut-off was 78 marks and hence his application was rejected. Reference was also given that according to the Department of Personnel and Training, the maximum period for which his consideration can be considered is up to 3 years after the Board of officers verify it. If after three years his appointment cannot be considered then the case will be closed. The tribunal in its decision said that it was on the recommendations of the Board officers that his appointment was considered and it was acknowledged after due consideration of the financial condition of the applicant’s family. Hence the petitioners were asked to grant the respondent a compassionate appointment within three months.
The petitioner filed a review petition of the above order which was cancelled by referring to the Supreme Court judgement given in the case of the State of West Bengal and Ors. Vs. Kamal Sengupta and Anr. (2008) (3) AISLJ209.

Petitioner’s contentions:

Mr Jaswinder Singh, Learned counsel for the petitioner, referring to the order said that there are certain limits which are to be followed while granting compassionate appointments. He also stated the fact that the respondent had secured fewer marks than the cut-off. According to him, the tribunal failed to understand that the Board of Officers proceedings held in 2009 were basic preliminary proceedings and not the final proceedings that the court had wrongly presumed. Also, the financial conditions of the respondent have changed and there could be more deserving cases than him. The position of the respondent is much lower than the last selectee and the number of vacancies being limited there is no chance of appointment.

Respondent’s contentions:

The learned counsel for the respondent justified that the decision of the tribunal was correct as there is no reason for the petitioner for denying the order. There had to be action taken since the family lost its earning member. Hence she seeks dismissal of the petition.

Judgement:

The issue arises whether the tribunal’s decision is justified in ordering the Board of officers to appoint the respondent. The court accepted that it was the Zonal Board who has the authority to appoint and such a process is followed in every case. Also, there is a difference of 12 marks between the last selectee and the respondent. It also said that the process due to which the respondent was not selected and the reason of the petitioner have been overlooked by the tribunal. It has been fourteen years already and the wife of the deceased and the family has been receiving a family pension. The tribunal has clearly mistaken in giving the impugned order. Hence the writ petition is allowed.

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CITATION: W. P(C) 32/2018

-Report by Saloni Agarwal

The Supreme Court in Union of India vs Indian Navy Civilian Design Officers Association and Anr., decided the rights and rules of the judiciary in interfering with the functioning of the executive and decided the parameter for the same.

Facts:

The appellant challenged the decision of the tribunal court regarding the pay scale of Junior Design Officers (JDOs). The respondent had filed before the tribunal court regarding the pay scale of JDOs to be equal to that of Civilian Technical Officers (CTOs) i.e. Rs 7500-12000. The pay scale was fixed by the Fifth Pay Commission. But the plea to equate the pay from Rs 7450-11500 to that of CTOs was rejected by the Finance Minister. The respondent filed another case before the tribunal and the tribunal was directed to grant the pay scale equal to that of CTOs. The appellant was aggrieved by this filled before the High Court and the decision of the tribunal was dismissed by it. The question which arises is the tribunal and High Court are justified in deciding the pay scale and post of the JDOs and CTOs.

Appellant’s Contention:

The plaintiff claimed that the JDOs and CTOs are governed by different sets of Rules and the release period is also longer in the case of CTOs. The UOI also said that the duties and responsibilities of the CTOs are more complex than the JDOs. The post of CTOs exists in different fields and the Pay Scale was fixed based on a recommendation given by Fifth Pay Commission and the Tribunal and High Courts had committed errors by upgrading it. The pay scale was fixed according to the working and requirements of the JDOs.

Respondent’s Contention:

The respondent claimed that the Commission ignored that from the very start, the pay scale of JDOs and CTOs is the same. The responsibilities and duties of both are somewhat similar. Till the Fourth Commission, the pay scale was the same for both. All the essential qualifications and rules followed were more or less equal. Equal Pay for Equal Work should be given.

Judgement:

The court said the Tribunal and High Court has committed gross error in interfering with the post and pay scale and upgrading the same. The decision of the post lies with the executive and it requires an exclusive framework and careful observation. The judiciary cannot interfere ordinarily unless there is something unfair and injustice done in matters regarding finance. The court said the rules, responsibilities and duties performed by the CTOs were different from JDOs. The court quashed the decision of the Tribunal and High Court and the appeal stands true and the appellant was held correct.

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-Report by Umang Kanwat

Family law conceptions still depend on parental control and the idea of “the family” as a unit, while privacy theories are mostly adult-centered and cannot be meaningfully applied to minors. In the recent case of Aparna Ajinkya Firodia Versus Ajinkya Arun Firodia, the Supreme Court determined that it could not forgo the rights and best interests of a third party, namely the child, in order to grant one of the parties to the marriage the benefit of a fair trial.

FACTS:

In the current case of Aparna Ajinkya Firodia Vs. Ajinkya Arun Firodia involving a married couple was going through divorce proceedings suspecting that the appellant-wife was in an adulterous relationship. The husband requested the court to order a DNA test on their second child to determine if he was the biological father. The court granted the request, and this decision was upheld by the Bombay High Court.

APPELLANT’S CONTENTIONS:

The appellant declines to submit the kid to a DNA test in her capacity as the child’s mother and natural guardian in order to safeguard the child’s interests and welfare. She is actually acting in the child’s best interests by refusing to submit the child to a DNA test.

RESPONDENT’S CONTENTIONS:

The respondent is not contesting the child’s legitimacy, but rather accusing the appellant-wife of adultery, and since she refused to submit the child to a DNA test, a presumption under Section 114(h) of the Evidence Actmight be made against her. In other words, he argues that Section 114(h) rather than Section 112 applies in this particular case and that the court is not required to expose the kid to a DNA test if the appellant is unwilling.

JUDGEMENT:

The Apex Court by concluding that the High Court and Family Court erred by granting the respondent’s request to subject the child to a DNA test, stated that in every instance when a parent declines to have their child undergo a DNA test, it is not prudent to infer the worst under Section 114 of the Evidence Act.

The court also emphasised that children have the right to protection from having their legal status inadvertently called into question in court. A child’s understanding of privacy could differ from an adult’s. However, merely because they are young, children should not be denied this right to shape and comprehend their sense of self. Furthermore, children have a specific right to maintain their identity under Article 8 of the Convention. Parental information is a characteristic of a child’s identity. As a result, it is forbidden to arbitrarily contest a child’s parentage in front of a court of law.

As a result, the appeal was granted. The court did add that this would not prevent the respondent-husband from presenting more evidence to support the claims he made against the appellant in the divorce petition.

READ FULL JUDGEMENT: https://bit.ly/3SnATqL

-Report by Saloni Agarwal

The Delhi High Court in Bhupinder Singh & Anr. Vs LT Governor decided whether the PIL filed is justified or not and looked into the fund’s misappropriation issue.

Facts:

The Delhi Sikh Gurudwara Management Committee and GHPS Society had mismanaged and misappropriated the funds and illegally removed the fund by conspiring with the members. They also run educational institutions the funds of which was also exploited by the member of the institute. The office members were involved in this misdeed. 

Appellant’s Contention:

The plaintiff had filed a PIL to have a yearly audit of the entire accounts of the committee and society and provide appropriate guidance to the same due to the misappropriation of funds. It also asked to adhere to the appropriate sections of the DSG Act and a direction to conduct a Special Audit should be given.

Respondent’s Contention:

The only question which arose was that is the PIL filed by the appellant was acceptable and can this be heard in the Delhi High Court. The respondent also filled in small affidavits during the same. 

Judgment:

The court said that the matter of misappropriation of the fund was already decided. The right to act on the PIL was with the district court and not with them. It also said that the PIL was not acceptable firstly because there are a given law, process,and procedures by the Chartered Accountants of India to carry out the audit function so deviation from it makes no point and secondly the Comptroller and Auditor General of India cannot voluntarily carry out an audit on its own when the laws exist for the same. The PIL was dismissed.

READb FULL JUDGEMENT: https://bit.ly/3KqLGyz

–Report by Shreya Gupta

In any circumstances, the interest expense cannot be denied u/s14A r.w. Rule 8D(2)(ii) of the IT Act. The disallowance made by adopting Rule 8D is not only opposed to the statutory requirement, but also to the legal principles established.

FACTS:

The case is an appeal by the petitioner against the order passed by the Income Tax Appellate Tribunal in which the court allowed the respondent’s appeal. The respondent filed a return for the income of Rs.358,47,29,328/- under normal provisions and book profit of Rs.431,48,93,079/- under section (u/s) 115JB of the I.T. Act. The AO made various disallowances u/s.14A r.w. Rule 8D amount to Rs.5,11,85,000/-. The AO investigated u/s 143(2) of the I.T. Act 1961. The case then went to The Ld. CIT (A) which allowed the respondent’s appeal but then the case went to the Hon’ble ITAT which again ruled in favor of the respondent. 

PETITIONER’S CONTENTIONS:

The petitioner contended on the previous orders by the courts given against his favor and asked if they were correct. He contended that “the assessment order that setting-off interest costs of dividend income against other taxable income areagainst the matching concept of income and expenditure. He submitted that there was no need to rely on any presumption of own funds on account of the changed law that came into force from 2007-08 followed by the introduction of rule 8D in 2008- 09 which provides for a method of calculations. It is submitted that because of the above, the ITAT erred in endorsing the CIT(A)’s order which drew the presumption of its interest-free funds. He further submitted that the ITAT ought not to have deleted the addition of interest disallowed by the AO, in the absence of any evidence that indicated that borrowed funds were not used to make investments that yielded exemption. He further submitted that the ITAT ought not to have been considered interest while calculating disallowance u/s. 14A read with Rule 5D since the assessee had not maintained a separate account for the investment related to exempt income.” 

RESPONDENT’S CONTENTIONS:

The respondent took the court through previous orders and stated that they were correct u/s. 14A read with Rule 8D (2)(ii) and prayed that the appeal deserves to be dismissed. In justification to his arguments, he took the help of the previous cases Godrej & Boyce Manufacturing Co. Ltd. Vs. Deputy Commissioner of Income-Tax and Another and South Indian Bank Ltd. vs. Commissioner of Income-tax. 

JUDGEMENT:

The court stated that “To put it another way, in respect of payment made out of the mixed fund, it is the assessee who has such right of appropriation and also the right to assert from what part of the fund a particular investment is made and it may not be permissible for the Revenue to estimate a proportionate figure.” The court stated that the AO has not recorded that there was any inadmissible expenditure u/s 14A. He stated that there are no powers u/s 14(2) which allow AO to apply Rule 8D straightaway without considering the correctness of the assessee’s claim in respect of expenditure incurred concerning the exempt income. The court further stated that the interest expenditure cannot be disallowed u/s14A r.w. Rule 8D(2)(ii) under any circumstances and therefore dismissed the appeal.

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