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Restricted circulation

INSTITUTE OF JUDICIAL TRAINING & RESEARCH, U.P.

VINEET KHAND, GOMTINAGAR,
LUCKNOW – 226 010

Quarterly Digest
CONSTITUTIONAL, CIVIL, CRIMINAL & REVENUE LAWS
(Covering important judgments of Supreme Court and Allahabad High Court)

April – June, 2006

Volume: XII Issue No.: 2

 Quarterly Digest
CONSTITUTIONAL, CIVIL, CRIMINAL & REVENUE LAWS
(Covering important judgments of Supreme Court and Allahabad High Court)

April – June, 2006

Volume: XII Issue No.: 2

INSTITUTE OF JUDICIAL TRAINING & RESEARCH, U.P.

VINEET KHAND, GOMTINAGAR,
LUCKNOW – 226 010
 EDITOR-IN-CHIEF
VED PAL
Director

EDITOR-IN-CHARGE
S.P. SRIVASTAVA
Additional Director (Research)

EDITORS
H.S. YADAV, Additional Director
A.K. AGARWAL, Additional Director (Admn.)
VIJAI VARMA, Additional Director (Training)
JAYA PATHAK, Assistant Director

FINANCIAL ADVISOR
AWADHESH KUMAR, Additional Director (Finance)

B.K. Mishra, Research Officer

ASSISTANCE
Nagendra Kumar Shukla, Praveen Kumar Shukla & T.N. Gupta
 SUBJECT INDEX

Sl.No. Subject
1. Administrative Law
2. Arbitration and Conciliation Act
3. Arms Act
4. Civil Procedure Code
5. Constitution of India
6. Consumer Protection Act, 1986
7. Contempt of Court Act
8. Contract Act
9. Cooperative Societies
10. Criminal Procedure Code, 1973
11. Criminal Trial
12. Electricity Act
13. Environment Protection and Pollution Control
14. Evidence Act
15. Family Law
16. General Clauses Act
17. Indian Easement Act
18. Indian Penal Code
19. Indian Succession Act
20. Interpretation of Statutes
21. Juvenile Justice (Care & Protection of Children) Act
22. Labour Law
23. Land Acquisition and Requisition
24. Limitation Act
25. Motor Vehicle Act & Motor Accidents
26. Narcotic Drugs and Psychotropic Substances Act
27. Negotiable Instruments Act
28. Panchayats and Zila Parishads
29. Precedents
30. Prevention of Food Adulteration Act
31. Provincial Small Causes Courts Act
32. Rent Control & Eviction
33. Service Law
34. Specific Relief Act
35. Stamp Act
36. The Uttar Pradesh judicial Service Rules
37. Tort
38. Town Planning
39. Transfer of Property Act
40. U.P. Consolidation of Holdings Act
41. U.P. Imposition of Ceiling on Land Holdings Act
42. U.P. Land Revenue Act
43. U.P. Zamindari Abolition and Land Reforms Act
44. STATUTE SECTION:
[The Contempt of Courts (Amendment) Act, 2006]

***
 ALPHABETICAL LIST OF CASES

Sl.No. Name of the Case & Citation

1. A.Sudhakar v. Post Master General, Hyderabad and another, 2006(3) Supreme 225 SC
2. Anil Rishi v. Gurbaksh Singh 2006(4) Supreme 62
3. Ashok Laxamn Gaikwad v. state of Maharashtra, 2006(3) Supreme 519 SC
4. Babu Lal and Brothers & Anr. V. IV th Addl. Dist. Judge, Saharanpur & Ors, 2006(2) ALJ 385
5. Babu Nandan V. State of U.P. & Ors., 2006 (2) ALJ 778
6. Basant Lal Sah & Anr V. Addl. Dist. Magistrate. Nainital & Ors., 2006 (2) ALJ 589
7. Bhagwana Singh v. Gaon Sabha Village Paijaniya, Bijnor; 2006(2)AWC 1684
8. Bishwanath Prasad Singh v. Rajendra Prasad; (2006) 4 SCC 432
9. Budhan Singh v. State of Bihar; (2006) 4 SCC 740
10. Chief Administrator, Puda & Another v. Shabnam Virk; (2006) 4 SCC 74
11. Commissioner of Police, New Delhi v. Narender Singh; (2006) 4 SCC 265
12. Committee of Management, Rama Devi Balika Inter College, Allahabad v. Mohd. Iqbal Khan & Ors.,
2006 (2) ALJ 784
13. D. Vinod Shivappa v. Nanda Belliappa; 2006 (4) Supreme 540
14. D. Vinod Shivappa v. Nanda Belliappa; 2006(4) Supreme 540
15. D. Vinod Shivappa v. Nanda Belliappa; 2006(4) Supreme 540
16. Deepak Chandrakant Patil v. State of Maharashtra, 2006(3) Supreme 162 SC
17. Desh Raj Singh V. Smt. Vandana Chaudhary, AIR 2006 All. 154
18. Diwakar Rai V. Dy. Director of Consolidation, Azamgarh & Ors., 2006 (2) ALJ 428
19. Food Inspector v. G. Satyanarayana; (2006) 1 SCC (Cri) 280
20. Food Inspector v. G. Satyanarayana; (2006) 1 SCC (Cri) 280
21. General Electric Co. of India Ltd v. Addl. Dist. Judge-V, Allahabad & ors, 2006 (2) ALJ 378
22. Ghulam Ashraf v. Abdul Khalik & Anr., AIR 2006 ALL. 149
23. Gunuwantbhai Mulchand Shah v. Anton Elis Farel; 2006(2) AWC 1475 SC
24. Gurdev Kaur and others v. Kaki and others, 2006(3) Supreme 631 SC
25. Gurdev Kaur and others v. Kaki and others, 2006(3) Supreme 631 SC
26. Gurdev Kaur and others v. Kaki and others, 2006(3) Supreme 631 SC
27. Hafizuddin V. Addl. District Judge & Anr., 2006 (2) ALJ 481
28. Hari Shankar Singhania v. Gaur Hari Singhania; (2006) 4 SCC 658
29. Hari Singh v. 6th Addl. District Judge, Muzaffarnagar & Ors, 2006 (2) ALJ 390
30. Haridas Das v. Usha Rani Banik; (2006) 4 SCC 78: 2006(3) Supreme 125 SC
31. Haryana State Electricity Board v. Mam Chand; 2006(4) Supreme 443
32. Hero Vinoth (Minor) v. Seshammal; 2006(4) Supreme 131
33. Hindustan Zinc Ltd. v. Friends Coal Carbonisation; (2006) 4 SCC 445
34. Indian Bank v. ABS Marine Products Pvt. Ltd. 2006(3) Supreme 647
35. Indian Bank v. ABS Marine Products Pvt. Ltd.; 2006(3) Supreme 647
36. Indu Devi v. District Magistrate, Chitrakoot & Ors. 2006(2) ALJ 747
37. Jagat Ram v. Varinder Prakash; (2006) 4 SCC 482
38. Jaya Bachchan v. Union of India & Ors.; 2006(4) Supreme 378
39. Jet Ply Wood (P) Ltd. v. Madhukar Nowlakha, (2006) 3 SCC 699
40. Jitendra Ram alias Jitu v. state of Jharkahnd, 2006(3) Supreme 737 SC
41. K.K. Bhalla v. State of M.P., (2006) 3 SCC 581
42. Kerala Samsthana Chethu Thozhilali Union v. State of Kerala; (2006) 4 SCC 327
43. Lok Ram v. Nihal Singh & Anr. 2006(3) Supreme 400
44. M.P. Gangadharan & Anr. V. State of Kerala & Ors.; 2006(4) Supreme 489
45. M/s. Rampur Distillery Ltd. v. Dy. Labour Commissioner, Varanasi & Ors. 2006(2) ALJ 750
46. M/s. Vivek Financial Services v. M/s. Coimbatore Stock Exchange Ltd.; 2006(3) Supreme 5
47. Mahabir Vegetable Oils Pvt. Ltd. and another v. State of Haryana and others, 2006(1) Supreme 693 SC
48. Mahamooda v. United India Insurance Co. Ltd., (2006) 1 SCC (Cri) 519
49. Maharashtra State Mining Corpn. V. Sunil, 2006 (3) Supreme 797 SC
50. Maharashtra State Seeds Corpn. Ltd. v. Hariprasad Drupadrao Jadhao, (2006) 3 SCC 690
51. Malik Mazhar Sultan & Anr. V. U.P. Public Service Commission & Ors. 2006(3) Supreme 493
52. Mangesh Kumar v. State of U.P., 2006 Cri.L.J. 1436
53. Manish Mohan Sharma v. Ram Bahadur Thakur Ltd.; (2006) 4 SCC 416
54. Manish Mohan Sharma v. Ram Bahadur Thakur Ltd.; (2006) 4 SCC 416
55. Minu Kumari v. State of Bihar; (2006) 4 SCC 359
56. Mosaraf Hossain Khan v. Bhagheeratha Engg. Ltd., (2006) 3 SCC 658
57. Mullaperiyar Environmental Protection Forum v. Union of India (2006) 3 SCC 643
58. N. Khosla v. Rajlakshmi, (2006) 3 SCC 605
59. Nagar Mahapalika (Now Municipal Corpn.) 2006 (3) Supreme 772 SC
60. Narinder Mohan Arya v. United India Insurance Co. Ltd.; (2006) 4 SCC 713
61. National Fertilizers Ltd. & Ors. v. Somvir Singh; 2006 (4) Supreme 290
62. National Insurance Co. Ltd. v. Kusum Rai; (2006) 4 SCC 250
63. National Insurance Co. Ltd., Lucknow v. Smt. Mayawati and Ors., 2006(2) ALJ 799
64. Naveen Kohli v. Neelu Kohli; (2006) 4 SCC 558
65. Om Prakash v. State of Uttar Pradesh; 2006 (4) Supreme 313
66. Padma Ben Banushali & another v. State of A.P. and others, 2006(3) Supreme 675 SC
67. Patrick Gonsalves & Ors. V. M/s. Haven Developers Pvt. Ltd. & Ors. , 2006 (2) ALJ 523
68. Percept D’Mark (India) (P) Ltd. v. Zaheer Khan & Another; (2006) 6 SCC 227
69. Prabhakaran v. M. Azhagiri Pillai; (2006) 4 SCC 4834
70. Prabhu Niwas & anr. V. Laxmi Narain & Ors., 2006(2) ALJ 716
71. Prem Raman Goswami v. 3rd A.D.J., Mathura and another; 2006(2) AWC 1092
72. Punjab & Sind Bank v. Allahabad Bank; (2006) 4 SCC 780
73. Punjab State Civil Supplies Corpn. Ltd. v. Sikander Singh; (2006) 3 SCC 736
74. Rabindra Mahto v. State of Jharkhand; 2006 Cri. L.J. 957 Alld.
75. Radha Mohan Singh v. State of U.P.; 2006 Cri. L.J. 1121 SC
76. Radha Mohan Singh v. State of U.P.; 2006 Cri. L.J. 1121 SC
77. Rais Ahmad v. Commissioner, Allahabad Division; 2006(2) AWC 1496
78. Raj Pal and others v. State of Haryana, 2006(3) Supreme 585
79. Raj Pal and others v. State of Haryana, 2006(3) Supreme 585 SC
80. Raj Pal and others v. State of Haryana, 2006(3) Supreme 585 SC
81. Rajan v. Union of India, 2006 Cri.L.J. 1415
82. Rajbir Singh v. State of U.P. & Another; (2006) 4 SCC 51
83. Rajesh Kumar Aggarwal v. K.K. Modi; (2006) 4 Supreme Court Cases 385
84. Rakesh Kumar Gupta v. Ashok Kumar Gupta & Ors, 2006(2) ALJ 387
85. Rakesh v. Collector/D.D.D., Consolidation, Baghpat; 2006 (2) AWC 1774
86. Rakesh v. State of U.P. & Others; 2006(2) AWC 1778
87. Ram Asrey Singh v. State of U.P.; 2006 (2) AWC 1607
88. Ram Biraji Devi & Anr. V. Umesh Kumar Singh & Anr.; 2006(4) Supreme 217
89. Ram Kishan v. State of U.P.;2006 Cri. L.J. 1772 Alld.
90. Ram Krishna Mishra v. State of U.P. & Ors., 2006(2) ALJ 500
91. Ram Niwas Vs. Ram Avtar Gupta & Anr, 2006 (2) ALJ 431
92. Ram Niwas Vs. Ram Avtar Gupta & Anr, 2006 (2) ALJ 431
93. Ram Pyare Singh v. Ram Govind & Ors., 2006(2) ALJ 624
94. Ramesh Kumar Srivastava v. State of U.P. & Anr., 2006(2) ALJ 686
95. Ramreddy Rajeshkhanna Reddy and another v. State of Andhra Pradesh, 2006(3) Supreme 175 SC
96. Ramreddy Rajeshkhanna Reddy and another v. State of Andhra Pradesh, 2006(3) Supreme 175 SC
97. Ramreddy Rajeshkhanna Reddy and another v. State of Andhra Pradesh, 2006(3) Supreme 217 SC
98. Ravinder Singh Gorkhi v. State of U.P.; 2006 (4) Supreme 337
99. Ravinder Singh Gorkhi v. State of U.P.; 2006(4) Supreme 337
100. Rishi Kumar Jain & Ors. v. Suresh Chandra Shah & Ors., 2006(2) ALJ 380
101. Rishi Kumar Jain & Ors. v. Suresh Chandra Shah & Ors., 2006(2) ALJ 380
102. S. Rajeswari v. S.N. Kulasekaran; (2006) 4 SCC 412
103. Saheb Khan v. Mohd. Yusufuddin & Ors.; 2006(3) Supreme 474
104. Sahebrao & Anr. V. State of Maharashtra; 2006(4) Supreme 419
105. Salim v. State of U.P.; 2006 Cri. L.J. 1801 Alld.
106. Sankaran Moitra v. Sadhna Das; (2006) 4 SCC 584
107. Sankaran Moitra v. Sadhna Das; (2006) 4 SCC 584
108. Saroj Gupta v. State of U.P.; 2006 Cri. L. J. 1045 Alld.
109. Sarup Singh Gupta v. S. Jagdish Singh & Others; (2006) 4 SCC 205
110. Sarup Singh Gupta v. s. Jagdish Singh and Others, Ramreddy; 2006(3) Supreme 206 SC
111. SCRamreddy Rajeshkhanna Reddy and another v. State of Andhra Pradesh, 2006(3) Supreme 175 SC
112. Shankar Dayal Tewari & Anr V. Dy Director of Consolidation Gorakhpur & Anr. 2006(2) ALJ 685
113. Shankarappa Kubbanna Kattimani v. Karnataka State Road Transport Corporation, (2006) 1 SCC (Cri)
548
114. Smt. Deepa Sharma & Ors. V. Smt. Raj Kaumari Devi & Ors, 2006 (2) ALJ 636 DB
115. Smt. Kanchan Upadhayay V. State of U.P. & Ors., AIR 2006 ALL. 148
116. Smt. Meena Sahu v. Life Insurance Corporation of India & Anr., AIR 2006 All. 156
117. Smt. Nisha Keserwani v. State of U.P. & Ors., AIR 2006 All. 152
118. Sripal Singh v. State of U.P. & Ors, 2006 (2) ALJ 384
119. Standard Chartered Bank v. Andhra Bank Financial Services Ltd. & Ors.; 2006(4) Supreme 238
120. State of Bihar and others v. Bihar Pensioners Samaj, 2006(3) Supreme 743 SC
121. State of Chhatisgarh v. Lekhram; 2006(3) Supreme 288
122. State of Gujarat and another v. Mahendrakumar Parshottambhai Desai Dead) by L. Rs. 2006(3)
Supreme 754 SC
123. State of Haryana v. Ranbir @ Rana; 2006(3) 358
124. State of Haryana v. Ranbir alias Rana; [2006 (55) ACC 522 SC
125. State of Jharkhand & Others v. Tata Cummins Ltd. & Another; (2006) 4 SCC 57
126. State of Karnataka v. All India Manufacturers Organisation; (2006) 4 SCC 683
127. State of M.P. v. Badri Yadav and another 2006(3) Supreme 204 SC
128. State of M.P. v. Badri Yadav and another 2006(3) Supreme 204 SC
129. State of U.P. v. Sheo Shanker Lal Srivastava 2006 (2) AWC 1470 SC
130. Sunil Kumar v. Union of India & Ors., 2006(2) ALJ 709
131. Swami Prasad v. A.D.J., Hamirpur; 2006 (2) AWC 1788
132. T. Aruntperunjothi v. State Though S.H.O., Pondicherry, 2006(3) Supreme 764 SC
133. The Aligarh Muslim University, Aligarh v. Malay Shukla & Ors., 2006 (2) ALJ 528
134. Union of India v. Munshi Ram (Dead) by Lrs. And others, 2006(3) Supreme 6 SC
135. Union of India v. Subedar Devassy PV; 2006 Cri. L.J. 971
136. United India Insurance Co. Ltd., Shimla v. Tilak Singh and others, 2006(3) Supreme 332 SC
137. United India Insurance Co. Ltd., Shimla v. Tilak Singh and others, 2006(3) Supreme 332 SC: (2006) 4
SCC 404
138. UPSRTC Ltd. v. Sarada Prasad Misra and another, 2006(3) Supreme 662 SC
139. Virendra Kumar Tripathy v. Nirmala Devi, (2006) 3 SCC 615
140. Virendra Kumar Tripathy v. Nirmala Devi; 2006(2) AWC 1700 SC
141. Yogesh Verma v. District Judge, Aligarh, 2006(2) ALJ 620
142. Zahira Habibullah Sheikh v. State of Gujarat; 2006 Cri. L.J. 1694

==========
ADMINISTRATIVE LAW:
Subordinate legislation – Must conform not only the provisions of
parent Act but also to the provisions of other Acts.
A rule is not only required to be made in conformity with the
provisions of the Act whereunder it is made, but the same must be in
conformity with the provisions of any other Act, as a subordinate
legislation cannot be violative of any plenary legislation made by
Parliament or the State Legislature.
The Kerala Abkari Act was enacted to consolidate and amend the
law relating to the import, export, transport, manufacture, sale and
possession of intoxicating liquors and/or intoxicating drugs in the State of
Kerala. While framing the rules for the purposes of the Act, the legislative
policy cannot be abridged. The rules must be framed to carry out the
purposes of the Act.
By reason of Section 8 of the Act, trade in arrack was prohibited as
far back as in the year 1996. By reason of the impugned Rules, the State
has not laid down the terms and conditions for employment of a worker.
The Act does not contain any provision therefore. Under the common law
as also under the provisions of the Specific Relief Act, an employer is
entitled to employ any person he likes. It is well settled that no person can
be thrust upon an unwilling employer except in accordance with the
provisions of a special statute operating in the field. Such a provision
cannot be made by the State in exercise of its power under delegated
legislation unless the same is expressly conferred by the statute. (Kerala
Samsthana Chethu Thozhilali Union v. State of Kerala; (2006) 4 SCC
327)
Principles of Natural Justice – Would be excluded where doctrine of
necessity is applicable
It is not in dispute that the Lok Ayukta was the disciplinary authority.
The power to impose punishment on the appellant vested only in him.
When the Lok Ayukta appointed one Shri S.K. Arora, a retired Director of
Defence Estate, an objection thereto was taken by the appellant himself
stating that no person from outside should be appointed as the Inquiry
Officer. In the aforementioned situation, the Lok Ayukta had no other
option but to take upon himself the burden of holding the departmental
proceedings. The appellant, therefore, cannot be permitted to raise any
contention that the disciplinary proceeding should have been conducted
by some other officer. It has not been contended that any other officer
working in the office of Lok Ayukta was available for conducting such
enquiry.
It is true that the principle of natural justice is based on two pillars: (i)
nobody shall be condemned without hearing; and (ii) nobody shall be a
Judge in his own cause.
It is, however, well known that the principles of natural justice can be
excluded by a statute. It can also be waived.
In a case where doctrine of necessity is applicable, compliance of
the principles of natural justice would be excluded.
Referring to the doctrine of necessity. Sir William Wade in his
Administrative Law stated:
“But there are many cases where no substitution is
possible, since no one else is empowered to act. Natural
justice then has to give way to necessity, for otherwise
there is no means of deciding and the machinery of justice
or administration will break down.”
It was further stated:
“In administrative cases the same exigency may arise.
Where statute empowers particular minister or official to
act, he will usually be the one and only person who can do
so. There is then no way of escaping the responsibility,
even if he is personally interested. Transfer of
responsibility is indeed, a recognized type of ultra vires. In
one case it was unsuccessfully argued that only minister
competent to conform a compulsory purchase order for
land for an airport had disqualified himself by showing bias
and that the local authority could only apply for a local Act
of Parliament.”
In M.P. State Police Establishment v. State of M.P. and Others,
(2004) 8 SCC 788, a Constitution Bench of this Court observed that as
office of the Lok Ayukta is held by a former Judge of this Court, it would be
difficult to assume that such authority would give a report without any
material whatsoever. Although no law was laid down in this behalf, but,
evidently those observations are pointers to show that normally a report
from such a High Officer should not be disbelieved.
It is not that the Lok Ayukta was not inclined to get the matter
inquired into by an outsider. He appointed one Shri S.K. Arora. It is the
appellant himself who raised an objection there against. He categorically
stated that no outsider should be appointed as an Inquiry Officer although
he took a different stand in his first show cause. He, therefore, waived his
right. (See Manak Lal v. Dr. Prem Chand, (1957) SCR 575 at 581).
In the aforementioned situation, the Lok Ayukta had no other option
but to proceed with the enquiry. Despite the fact that he was the
disciplinary authority himself, as well as a witness, he had no other option
but to inquire into the charges against the appellant. (State of U.P. v.
Sheo Shanker Lal Srivastava 2006 (2) AWC 1470 (SC))

ARBITRATION AND CONCILIATION ACT:

Arbitration Act, 1940 – S. 20 – Right to file the application U/s. 20 accrues
when differences and disputes arise between the parties – When parties
are in dialogue and are corresponding to negotiate the matter the right
would not arise unless they fail to resolve the matter themselves.
None of the correspondence referred to by the learned Judges of
the Division Bench spells out the existence of any disputes as a
result of which the properties could not be distributed prior to
31.5.1987. The High Court has erred in coming to the conclusion that
because no distribution of the property had been made till 29.2.1988,
it was indicative of the fact that there were disputes and differences
between the parties. The High Court has failed to appreciate that
merely because parties did not take steps for distribution of the
immovable properties it did not automatically follow that disputes
and differences had arisen between them in this regard. In fact, from
the correspondence on record, it is clear that the parties were
making efforts to complete the distribution of the immovable
properties as per the terms of the agreement between them.
On 29.9.1989, a letter was written by the appellants to the
respondent G wherein it is stated that it is not fair to impute
impropriety or to say that the stand taken by the appellants is an
attempt to bring pressure upon immovable properties of dissolved
partnership. It is also stated therein that the respondent will expedite
the matter of dissolution of the immovable properties in the same
spirit as was envisaged at the time of dissolving the firm. If this
letter-dated 29.9.1989 is taken into account, it would show that
Section 20 suit would clearly be within time. The High Court
committed an error in construing Article 137 in a manner, which
would unduly restrict the remedy of arbitration especially in family
disputes of the present kind.
It is a well-settled policy of law in the first instance, always to
promote a settlement between the parties wherever possible and
particularly in family disputes. Where a settlement with or without
conciliation is not possible, then comes the stage of adjudication by
way of arbitration. Article 137, as construed in this sense, then as
long as parties are in dialogue and even the differences would have
surfaced it cannot be asserted that a limitation under Article 137 has
commenced. Such an interpretation will compel the parties to resort
to litigation/arbitration even where there is serious hope of the
parties themselves resolving the issues. (Hari Shankar Singhania v.
Gaur Hari Singhania; (2006) 4 SCC 658)
Section 34 – Award contrary to terms of the Contract – Open to
interference by the Court U/s. 34 (2)(b) (ii) as being patently illegal.
This Court in ONGC Ltd. v. Saw Pipes Ltd. [(2003) 5 SCC 705] held
that an award contrary to substantive provisions of law or the provisions of
the Arbitration and Conciliation Act, 1996 or against the terms of the
contract, would be patently illegal, and if it affects the rights of the parties,
open to interference by the court under Section 34(2) of the Act. This
Court observed: (SCC pp. 718 & 727-28, paras 13 & 31)
“13. The question, therefore, which requires
consideration is – whether the award could be set aside, if
the Arbitral Tribunal has not followed the mandatory
procedure prescribed under Sections 24, 28 or 31(3), which
affects the rights of the parties. Under sub-section (1)(a) of
Section 28 there is a mandate to the Arbitral Tribunal to
decide the dispute in accordance with the substantive law for
the time being in force in India. Admittedly, substantive law
would include the Indian Contract Act, the Transfer of
Property Act and other such laws in force. Suppose, if the
award is passed in violation of the provisions of the Transfer
of Property Act or in violation of the Indian Contract Act, the
question would be – whether such award could be set aside.
Similarly, under sub-section (3), the Arbitral Tribunal is
 directed to decide the dispute in accordance with the terms
of the contract and also after taking into account the usage
of the trade applicable to the transaction. If the Arbitral
Tribunal ignores the terms of the contract or usage of the
trade applicable to the transaction, whether the said award
could be interfered. Similarly, if the award is a non-speaking
one and is in violation of Section 31(3), can such award be
set aside? In our view, reading Section 34 conjointly with
other provisions of the Act, it appears that the legislative
intent could not be that if the award is in contravention of the
provisions of the Act, still however, it couldn‟t be set aside by
the court. If it is held that such award could not be interfered,
it would be contrary to the basic concept of justice. If the
Arbitral Tribunal has not followed the mandatory procedure
prescribed under the Act, it would mean that it has acted
beyond its jurisdiction and thereby the award would be
patently illegal which could be set aside under Section 34”.
(Hindustan Zinc Ltd. v. Friends Coal Carbonisation;
(2006) 4 SCC 445)

ARMS ACT:

S. 25 (1A) – Conscious and exclusive possession of incriminating

article – SBBL Gun and empty cartridges kept inside house beneath
a dari – Accused being the only adult member of the family – Held,
that the accused had conscious and exclusive possession of the
same.
Thus before an order of conviction and sentence is passed against
an accused first it is to be proved that the person had conscious and
exclusive possession of the incriminating article. In this case recovery is
proved by two police witnesses and one independent witness of the same
locality. No license of the SBBL gun and cartridges was produced by the
revisionist on the spot. In the cited case exclusive possession of
concerned accused was not found proved because there were other adult
members in the family or adult son, who committed theft or robbery and
thereafter incriminating materials were found in joint possession of the
family inside their house but in instant case where only minor son and
minor daughter were the family members of the revisionist at the time of
the recovery and they were not physically present at that time inside the
house when the recovery was being made, it was only the revisionist
alone, who was found present inside the house when recovery of SBBL
gun and cartridges were made, the accused being all alone and being the
sole adult member of the family and also keeping it not at normal place
inside the house beneath a Dari, which was lying inside the house shows
that the revisionist had guilty intention to conceal the SBBL gun and the
cartridges hence it was found beneath the Dari. His lone presence at the
time of recovery and he being the only adult member of the family, the
incriminating article was found beneath the Dari inside the room. It shows
that the revisionist had conscious and exclusive possession of the
incriminating article, therefore, if both the courts below have disbelieved
the allegation of the defence that he was not in exclusive and conscious
possession of the SBBL gun and cartridges, does not suffer from any
illegality. The SBBL gun is not an article to be used by minor son or minor
daughter. No other adult member was living in the house of the revisionist
in those days by whom the SBBL gun could be used. The license of the
gun could not be produced by the revisionist before the police officers
making recovery of the gun and the cartridges. All this shows guilty,
conscious and exclusive possession of the revisionist. Therefore, the
findings made by both the courts below do not suffer from any illegality
and the findings have been made on the basis of evidence, considering
the facts and circumstances of the case. The findings of both the courts
below are consistent and are findings of fact, which do not suffer from any
illegality, therefore, it does not call for any interference by this Court. (Ram
Kishan v. State of U.P.; 2006 Cri. L.J. 1772(Alld.))
S. 25 (1A) – Illegal possession of arms-Before passing an order of

conviction conscious and exclusive possession of incriminating articles

must proved.

Before an order of conviction and sentence is passed against

an accused first it is to be proved that the person had conscious and

exclusive possession of the incriminating article. In this case

recovery is proved by two police witnesses and one independent

witness of the same locality. No license of the SBBL gun and

cartridges was produced by the revisionist on the spot. In instant

case at the time of the recovery the revisionist along, who was found

present inside the house when recovery of SBBL gun and cartridges

were made, the accused being all alone and being the sole adult

member of the family and also keeping it not at normal place inside

the house beneath a Dari, which was lying inside the house shows

that the revisionist had guilty intention to conceal the SBBL gun and

the cartridges hence it was found beneath the Dari. His along

presence at the time of recovery and he being the only adult member

of the family, the incriminating article was found beneath the Dari

inside the room. It shows that the revisionist had conscious and

exclusive possession of the in criminating article. Therefore, the

findings made by both the courts below do not suffer from any

illegality and the findings have been made on the basis of evidence,

considering the facts and circumstances of the case. (Shariful Hasan

Vs. State of U.P., 2006 (2) ALJ 495.)

CIVIL PROCEDURE CODE:

S. 9 – Inter Bank dispute – Banks whether public sector undertakings
– Modalities indicated in ONGC case are not administrative in nature.
The view in ONGC-I case (1995 Supp (4) SCC 541) was further
elaborated in ONGC v. CCE ((2004) 6 SCC 437) (for the sake of
convenience described as ONGC-II). It was noted in ONGC v. CCE
((2003) 3 SCC 472) (for convenience described as ONGC-III) that some
doubts and problems arose in the working out of the arrangements in
terms of the order of this Court dated 11.10.1991 in ONGC-II case (1995
Supp (4) SCC 541). It was noted in ONGC-III case ((2004) 6 SCC 437) as
follows: (SCC pp. 438-39, para 4).
“4. There are some doubts and problems that have arisen in
the working out of these arrangements which require to be
clarified and some creases ironed out. Some doubts persist
as to the precise import and implications of the words „and
recourse to litigation should be avoided‟. It is clear that the
order of this Court is not to the effect that – nor can that be
done – so far as the Union of India and its statutory
corporations are concerned, their statutory remedies are
effaced. Indeed, the purpose of the constitution of the High –
Powered Committee was not to take away those remedies.
The relevant portion of the order reads: (SCC pp. 541-42,
para 3)
„3. We direct that the Government of India shall set up
a committee consisting of representatives from the Ministry
of Industry, the Bureau of Public Enterprises and the Ministry
of Law, to monitor disputes between Ministry and Ministry of
the Government of India, Ministry and public sector
undertakings of the Government of India and public sector
undertakings in between themselves, to ensure that no
litigation comes to court or to a tribunal without the matter
having been first examined by the Committee and its
clearance for litigation. The Government may include a
representative of the Ministry concerned in a specific case
and one from the Ministry of Finance in the Committee.
Senior officers only should be nominated so that the
Committee would function with status, control and
discipline.”
It is abundantly clear that the machinery contemplated is only to
ensure that no litigation comes to court without the parties having had an
opportunity of conciliation before an in-house committee.” (Emphasis in
original)
The matter was again examined in Chief Conservator of Forests v.
Collector ((2003) 3 SCC 472). In paras 14 and 15 it was noted as follows:
(SCC pp. 481-82).
 “14. Under the scheme of the Constitution, Article 131
confers original jurisdiction on the Supreme Court in regard
to a dispute between two States of the Union of India or
between one or more States and the Union of India. It was
not contemplated by the framers of the Constitution or CPC
that two departments of a State or the Union of India will
fight a litigation in a court of law. It is neither appropriate nor
permissible for two departments of a State or the Union of
India to fight litigation in a court of law. Indeed, such a
course cannot but be detrimental to the public interest as it
also entails avoidable wastage of public money and time.
Various departments of the government are its limbs and,
therefore, they must act in coordination and not in
confrontation. Filing of a writ petition by one department
against the other by invoking the extraordinary jurisdiction of
the high Court is not only against the propriety and polity as
it smacks of indiscipline but is also contrary to the basic
concept of law which requires that for suing or being sued,
there must be either a natural or a juristic person. The
States/Union of India must evolve a mechanism to set at rest
all interdepartmental controversies at the level of the
Government and such matters should not be carried to a
court of law for resolution of the controversy. In the case of
disputes between public sector undertakings and the Union
of India, this Court in ONGC v. CCE (1992 Supp (2) SCC
432) called upon the Cabinet Secretary to handle such
matters. In ONGC v. CCE (1995 Supp (4) SCC 541) this
Court directed the Central Government to set up a
committee consisting of representatives from the Ministry of
Industry, the Bureau of Public Enterprises and the Ministry of
Law, to monitor disputes between Ministry and Ministry of
the Government of India, Ministry and public sector
undertakings of the Government of India and public sector
undertakings in between themselves, to ensure that no
litigation comes to court or to a tribunal without the matter
having been first examined by the Committee and its
clearance for litigation. The Government may include a
representative of the Ministry concerned in a specific case
and one from the Ministry of Finance in the Committee.
Senior officers only should be nominated so that the
Committee would function with status, control and discipline.
 15.The facts of this appeal, noticed above, make out
a strong case that there is a felt need of setting up of similar
committees by the State Government also to resolve the
controversy arising between various departments of the
State or the State and any of its undertakings. It would be
appropriate for the State Governments to set up a committee
consisting of the Chief Secretary of the State, the
Secretaries of the departments concerned, the Secretary of
Law and where financial commitments are involved, the
Secretary of Finance. The decision taken by such a
committee shall be binding on all the departments concerned
and shall be the stand of the Government.”
To say the least the view expressed by the Division Bench of the
High Court is confusing and patently shows that the ratio of the various
decisions has not been understood in the proper perspective. To say that
the decision in ONGC-I case ((1992) Supp (2) SCC 432) was of an
administrative nature though a judicial order shows non-application of
mind. Any order passed in a judicial proceeding, (much less an order
passed by this Court) can by no stretch of imagination be described as
one of “administrative nature”. (Punjab & Sind Bank v. Allahabad Bank;
(2006) 4 SCC 780)
S. 9 & Ss. 17, 18 & 19 of Recovery of Debts Due to Banks and
Financial Institutions Act, 1993 – Civil Courts jurisdiction is barred
only in regard to such applications – Jurisdiction of Civil Court is not
barred in regard to any suit filed by a borrower against a Bank or any
relief.
It is evident from Sections 17 and 18 of the Debts Recovery Act that
civil court‟s jurisdiction is barred only in regard to applications by a bank or
a financial institution for recovery of its debts. The jurisdiction of civil
courts is not barred in regard to any suit filed by a borrower or any other
person against a bank for any relief. It is not disputed that the Calcutta
High Court had jurisdiction to entertain and dispose of C.S. No. 7/1995
filed by the borrower when it was filed and continues to have jurisdiction to
entertain and dispose of the said suit. There is no provision in the Act for
transfer of suits and proceedings, except section-31, which relates to
suit/proceeding by a Bank or financial institution for recovery of a debt. It is
evident from Section 31 that only those cases and proceedings (for
recovery of debts due to banks and financial institutions), which were
pending before, any court immediately before the date of establishment of
a tribunal under the Debts Recovery Act stood transferred, to the Tribunal.
In this case, there is no dispute that the Debt Recovery Tribunal, Calcutta,
was established long prior to the company filing C.S. No. 7/1995 against
the bank. The said suit having been filed long after the date when the
tribunal was established and not being a suit or proceeding instituted by a
bank or financial institution for recovery of a debt did not attract section 31.
The effect of sub-sections (6) to (11) of Section 19 of the amended
Act is that any defendant in a suit or proceeding initiated by a bank or
financial institution can: (a) claim set off against the demand of a
Bank/financial institution, any ascertained sum of money legally
recoverable by him from such bank/financial institution; and (b) set-up by
way of counter-claim against the claim of a Bank/financial institution, any
right or claim in respect of a cause of action accruing to such defendant
against the bank/financial institution, either before or after filing of the
application, but before the defendant has delivered his defence or before
the time for delivering the defence has expired, whether such a counter
claim is in the nature of a claim for damages or not. What is significant is
that Sections 17 and 18 have not been amended. Jurisdiction has not
been conferred on the Tribunal, even after amendment, to try independent
suits or proceedings initiated by borrowers or others against
banks/financial institutions, nor the jurisdiction of civil courts barred in
regard to such suits or proceedings. The only change that has been made
is to enable defendants to claim set off or make a counter-claim as
provided in sub-sections (6) to (8) of Section 19 in applications already
filed by the bank or financial institutions for recovery of the amounts due to
them. In other words, what is provided and permitted is a cross-action by a
defendant in a pending application by the bank/financial institution, the
intention being to have the claim of the bank/financial institution made in
its application and the counter-claim or claim for set off of the defendant,
as a single unified proceeding, to be disposed of by a common order.
Making a counter claim in the Bank‟s application before the Tribunal
is not the only remedy, but an option available to the borrower/defendant.
He can also file a separate suit or proceeding before a civil court or other
appropriate forum in respect of his claim against the Bank and pursue the
same. Even the Bank, in whose application the counter-claim is made, has
the option to apply to the tribunal to exclude the counter-claim of the
defendant while considering its application. When such application is
made by the Bank, the Tribunal may either refuse to exclude the counter-
claim and proceed to consider the Bank‟s application and the counter-
claim together; or exclude the counter-claim as prayed, and proceed only
with the Bank‟s application, in which event the counter-claim becomes an
independent claim against a bank/financial institution. The defendant will
then will have to approach the civil court in respect of such excluded
counter-claim as the Tribunal does not have jurisdiction to try any
independent claim against a bank/financial institution. A defendant in an
application, having an independent claim against the Bank, cannot be
compelled to make his claim against the Bank only by way of a counter-
claim. Nor can his claim by way of independent suit in a court having
jurisdiction, be transferred to a Tribunal against his wishes. In this case,
the first respondent does not wish his case to be transferred to the
Tribunal. It is, therefore, clear that the suit filed by the first respondent
against the Bank in the High Court for recovery of damages, being an
independent suit, and not a counter-claim made in the application filed by
the bank, the Bank‟s application for transfer of the said suit to the Tribunal
was misconceived and not maintainable. The High Court, where the suit
for damages was filed by the company against the bank, long prior to the
bank filling an application before the tribunal against the company,
continues to have jurisdiction in regard to the suit and its jurisdiction is not
excluded or barred under Section 18 or any other provision of Debts
Recovery Act. (Indian Bank v. ABS Marine Products Pvt. Ltd.; 2006(3)
Supreme 647)
S. 10 – Rejection of Application for stay of suit- Grounds of.
The landlord if he is to evict the tenant, he will have to institute a
suit for eviction, which has been done in the subsequent case. In these
circumstances, the order impugned in the revision rejecting the application
under Section 10 C.P.C. does not suffer from any illegality or irregularity.
Thus the court has specifically taken into consideration and arrived at a
conclusion that the question to be determined in the two suits are
substantially different and, therefore, the application has been rejected.
(Rakesh Kumar Gupta v. Ashok Kumar Gupta & Ors, 2006(2) ALJ
387)
S. 11 – Explanation III & IV – Res-judicata in Public Interest Litigation
– If issues raised in subsequent proceeding had been specifically
raised in by one party and denied by the other the principle of res-
judicata would apply and it would be abuse of process of court to re-
examine the issue.
Res judicata is a doctrine based on the larger public interest and is
founded on two grounds: one being the maxim memo debet bis vexari pro
una et eadem causa (no one ought to be twice vexed for one and the
same cause) and second, public policy that there ought to be an end to
the same litigation. Section 11 CPC is not the foundation of the principle of
res judicata, but merely statutory recognition thereof and hence, the
section is not to be considered exhaustive of the general principle of law.
The main purpose of the doctrine is that once a matter has been
determined in a former proceeding, it should not be open to parties to
reagitate the matter again and again. Section 11 CPC recognizes this
principle and forbids a court from trying any suit or issue, which is res
judicata, recognizing both “cause of action estoppel” and “issue estoppel”.
The principle and philosophy behind Explanation IV, namely, to
prevent “the abuse of the process of the court” (as stated in Greenhalgh)
through reagitation of settled issues, provides yet another ground to reject
the appellants‟ contentions. In the face of such a finding by the High Court,
Explanation IV to Section 11 squarely applies as, admittedly, the litigation
in the earlier cases exhausted all possible challenges. Merely because the
present petitioners draw semantic distinctions, the issue does not cease to
be res judicata or covered by principles analogous thereto. If the issues
that had been raised/ought to have been raised in the previous case were
to be re-examined by the Supreme Court, it would simply be an abuse of
the process of the court, which cannot be allowed. Therefore, the previous
writ petition operated as res judicata for the questions raised in the
present petitions.
Section 11 CPC undoubtedly provides that only those matters that
were “directly and substantially in issue” in the previous proceeding will
constitute res judicata in the subsequent proceeding. Explanation III to
Section 11 provides that for an issue to be res judicata it should have
been raised by one party and expressly denied by the other. The spirit
behind Explanation IV is that the plea of res judicata also applies “to every
point which properly belonged to the subject of litigation and which the
parties, exercising reasonable diligence, might have brought forward at
the time”. In Greenhalgh v. Mallard, (1947) 2 All ER 255 (CA) it was
observed “that res judicata for this purpose is not confined to the issues
which the court is actually asked to decide, but that it covers issues or
facts which are so clearly part of the subject-matter of the litigation and so
clearly could have been raised that it would be an abuse of the process of
the court to allow a new proceeding to be started in respect of them”.
Having examined the prayers of the parties, the cause of action,
the averments of parties and the finding of the High Court which were
substantially the same, in the earlier writ petition, it is clear that the issue
raised in the subsequent writ petition was specifically raised n the previous
writ petition and was forcefully denied by the State. In these
circumstances, it cannot be doubted that Explanation III to Section 11
squarely applies. It is clear that the issue was “directly and substantially in
issue” in the previous case and hence, the findings recorded therein
having reached finality, cannot be reopened in this case. (State of
Karnataka v. All India Manufacturers Organization; (2006) 4 SCC 683)
S. 11 & 13 of Special Courts (Trial of Offences Relation to
Transaction in Securities) Act, 1992 – Effect of overriding provision –
Does not override doctrine of Res-judicata.
We are not in agreement with the view taken by the Special Court
that Section 13 of the Act overrides the doctrine of res-judicata. Section 13
of the Act provides: “The provisions of this Act shall have effect
notwithstanding anything inconsistent therewith contained in any other law
for the time being in force or in any instrument having effect by virtue of
any law, other than this Act, or in any decree or order of any Court,
tribunal or other authority”. This was certainly not intended to abrogate all
the established principles of law, unless they were directly in conflict with
the express provisions of the Act itself. There is nothing in the Act which is
inconsistent with the doctrine of res-judicata, per se, as seems to have
been assumed by the Special Court.
We are afraid that the Special Court was wrong on all the counts. On
the question of res-judicata, the Special Court failed to notice that the
doctrine of res-judicata is not merely a matter of procedure but a doctrine
evolved by the courts in larger public interest. What is enacted in Section
11 of the Civil Procedure Code (“CPC”) is not the fountain-head of the
doctrine, but merely the statutory recognition of the doctrine, which rests
on public policy.
In the previous suit to which both SCB and Canara Bank were
parties, the same issue with regard to „15% arrangement‟ with HPD was
urged by CMF as a non-suiting factory, but was negative both by the
Special Court and by this Court. Issue No. 10 in the previous suit was the
relevant issue dealing with 15% arrangement
This was an issue raised by CMF, which was defendant No. 1 in that
suit (Special Court Suit No. 13/94). The burden of proving this issue was
on the defendant and the Special Court answered the issue in the
negative and observed that the counsel for defendant No. 1 had admitted
that there was no evidence to support this issue. Consequently, the
Special Court held that the issue was answered in the negative i.e. against
defendant No. 1. Since the Special Court findings were finally upheld by
this Court in the judgment reported in Canara Bank (supra) and a review
petition there against was also dismissed, we are of the view that it is not
open for this Court to again raise the issue and take a view contrary to
what had already been decided in the previous suit, particularly in view of
the fact that there has been no new revelatory evidence on this issue.
(Standard Chartered Bank v. Andhra Bank Financial Services Ltd. &
Ors.; 2006(4) Supreme 238)
Section 47 – Role of Executing Court – Effort must be to see that the
parties are given the fruits of the decree - When executing Court can
go behind the decree – If a decree is ambiguous, it is the duty of the
Executing Court to construe the decree.
The effort of the executing court must be to see that the parties are
given the fruits of the decree. The mandate is reinforced when it is a
consent decree and doubly reinforced when the consent decree is a family
settlement. Family settlements are governed by a special equity and are to
be enforced if honestly made. This would be so even if the terms may
have been agreed to on the basis of an error of the parties or originate in a
mistake or ignorance of fact as to what the rights of the parties actually
are, or of the points on which their rights actually depend. This is because
the object of an arrangement is to protect the family from long drawn out
litigation and to bring about harmony and goodwill in the family. The courts
lean heavily in favour of family arrangements and matters which would be
fatal to the validity of similar transactions between strangers are not
objections to the binding effect of family arrangements. (Manish Mohan
Sharma v. Ram Bahadur Thakur Ltd.; (2006) 4 SCC 416)
S. 47 and O. 21 Rule 2 – Effect of uncertified payment under a decree
– An uncertified payment of money or adjustment under a decree
which is not recorded by the Court under Order XXI Rule 2 CPC
cannot be recognized by executing court.
Order XXI Rule 2 applies to a specific set of circumstances. If any
money is payable under a decree, irrespective of the nature of decree,
and such money is paid out of court, the decree-holder, has to certify such
payment to the court whose duty it is to execute the decree and that court
has to record the same accordingly. Similarly, if a decree, irrespective of
its nature, is adjusted in whole or in part to the satisfaction of the decree-
holder, the decree-holder has to certify such adjustment to that court
which has to record the adjustment accordingly. If the payment or
adjustment is not reported by the decree-holder, the judgment-debtor has
been given the right to inform the court of such payment or adjustment
and to apply to that court for certifying that payment or adjustment after
notice to the decree-holder. Then comes sub-rule (3) which provides that
a payment or adjustment which has not been certified or recorded under
sub-rule (1) or (2), shall not be recognized by the court executing decree.
An uncertified payment of money or adjustment which is not
recorded by the court under Order XXI Rule 2 cannot be recognized by
the executing court. In a situation like this, the only enquiry that the
executing court can do is to find out whether the plea taken on its face
value, amounts to adjustment o4r satisfaction of decree, wholly or in part,
and whether such adjustment or satisfaction had the effect of
extinguishing the decree to that extent. If the executing court comes to the
conclusion that the decree was adjusted wholly or in part but the
compromise or adjustment or satisfaction was not recorded and/or
certified by the court, the executing court would not recognize them and
will proceed to execute the decree.
Interpreting the provisions of Section 47 and Order XXI Rule 2 in the
light of the above principles, there does not appear to be any antithesis
between the two provisions. Section 47 deals with the power of the court
executing the decree while Order XXI Rule 2 deals with the procedure
which a court whose duty it is to execute the decree has to follow in a
limited class of cases relating to the discharge or satisfaction of decrees
either by payment of money (payable under the decree) out of court or
adjustment in any other manner by consensual arrangement. Since
Section 47 provides that the question relating to the execution, discharge
or satisfaction of the decrees shall be determined by the court executing
the decree, it clearly confers a specific jurisdiction for the determination of
those questions on the executing court. (Padma Ben Banushali &
another v. State of A.P. and others, 2006(3) Supreme 675 SC)
S. 92 – Three conditions must be fulfilled before allowing an
application U/s. 92 – Nothing in the order to suggest that conditions
were fulfilled – Recall of the order allowing application was proper.
In application under Section 92 CPC three conditions must be
fulfilled. The suit must relate to a public charitable or religious trust and
secondly the foundation of the suit is on an allegation of breach of trust
and a direction of the court is required for administration and lastly the
relief claimed are those which are detailed in the said provisions. Such a
suit is of specific nature and, therefore, the very foundation of the suit
would fall if it does not stand the real test regarding applicability of the
provisions of Section 92 CPC. The order passed on 7.9.2005 has been
recalled by means of the impugned order, which is annexed along with an
affidavit filed in support of the stay application. I have perused the order-
dated 7.9.2005. Nothing has been said by the Incharge District Judge,
Etah regarding applicability of the three conditions before the application
under Section 92 CPC was allowed granting permission to file the suit
under Section 92 CPC. In the circumstances, in the event, the District
Judge, Etah recalled the said order in exercise of powers under Section
151 CPC, no illegality has been committed which calls for an interference
in exercise of revisional powers. (Rishi Kumar Jain & Ors. v. Suresh
Chandra Shah & Ors., 2006(2) ALJ 380).
S. 100 – Scope of 2nd Appeal – The scope of Section 100, Civil
Procedure Code, has been drastically curtailed and narrowed down.
The High Court would have jurisdiction of interfering under Section
100 CPC only in a case where substantial questions of law are
involved and those questions have been clearly formulated in the
memorandum of appeal.
Now, after 1976 Amendment, the scope of Section 100 has been
drastically curtailed and narrowed down. The High Courts would have
jurisdiction of interfering under Section 100 CPC only in a case where
substantial questions of law are involved and those questions have been
clearly formulated in the memorandum of appeal. At the time of admission
of the second appeal, it is the bounden duty and obligation of the High
Court to formulate substantial questions of law and then only the High
Court is permitted to proceed with the case to decide those questions of
law. The language used in the amended section specifically incorporates
the words as “substantial question of law” which is indicative of the
legislative intention. It must be clearly understood that the legislative
intention was very clear that legislature never wanted second appeal to
become “third trial on facts” or “one more dice in the gamble”. The effect of
the amendment mainly, according to the amended section, was:
(i) The High Court would be justified in admitting the second
appeal only when a substantial question of law is involved.
(ii) The substantial question of law to precisely state such
question;
(iii) A duty has been cast on the High Court to formulate
substantial question of law before hearing the appeal;
 (iv) Another part of the Section is that the appeal shall be heard
only on that question.
When Section 100 CPC is critically examined then, according to the
legislative mandate, the interference by the High court is permissible only
in cases involving substantial questions of law. The Judicial Committee of
the Privy Council as early as in 1890 stated that there is no jurisdiction to
entertain a second appeal on the ground of an erroneous finding of fact,
however, gross or inexcusable the error may seem to be and they added a
note of warning that no Court in India has power to add to, or enlarge, the
grounds specified in Section 100.
Judges must administer law according to the provisions of law. It is
the bounden duty of judges to discern legislative intention in the process
of adjudication. Justice administered according to individual‟s whim, desire
inclination and notion of justice would lead to confusion, disorder and
chaos. Indiscriminate and frequent interference under Section 100 CP. In
cases which are totally devoid of any substantial question of law is not
only against the legislative intention but is also the main cause of huge
pendency of second appeals in the High Courts leading to colossal delay
in the administration of justice in civil cases in our country.
The primary cause of the accumulation of arrears of second appeals
in the High Court is the laxity with which second appeals are admitted
without serious scrutiny of the provisions of Section 100 CPC. It is the
bounden duty of the High Court to entertain second appeal within the
ambit and scope of Section 100 CPC. The question, which is often, asked
that why a litigant should have the right of two appeals even on questions
of law. The answer to this query is that in every State there are number of
District Courts and courts in the District cannot be final arbiters on
questions of law. If the law is to be uniformly interpreted and applied,
questions of law must be decided by the highest Court in the State whose
decisions are binding on all subordinate courts. (Gurdev Kaur and others
v. Kaki and others, 2006(3) Supreme 631 SC)
S. 114 and Order 47 – No review on the ground that all the aspects
could not be highlighted and argued properly – Rehearing not
permissible in review.
Section 114 CPC does not even adumbrate the ambit of
interference expected of the court. The parameters are prescribed in
Order 47 CPC which permit a rehearing “on account of some mistake or
error apparent on the face of the records or for any other sufficient
reason”. The former part of the rule deals with a situation attributable to
the applicant, and the latter to a jural action which is manifestly incorrect
or on which two conclusions are not possible. Neither of them postulates a
rehearing of the dispute because a party had not highlighted all the
aspects of the case or could perhaps have argued them more forcefully
and/or cited binding precedents to the court and thereby enjoyed a
favourable verdict. That is amply evident from the Explanation to Order 47
Rule 1. (Haridas Das v. Usha Rani Banik; (2006) 4 SCC 78); 2006(3)
Supreme 125 SC)
S. 115 – Objection invited on an application U/s. 92 of CPC – Order
does not amount to case decided.
Besides the order inviting the objections on the application 5C-2
fixing a subsequent date, will not amount to a case decided and, therefore
I am of the considered view that the revisional powers cannot be invoked.
The impugned order is only an interlocutory order and the revision itself is
not maintainable. (Rishi Kumar Jain & Ors. v. Suresh Chandra Shah &
Ors., 2006(2) ALJ 380).
Section 115 (2) & S. 151 – Revisional Court not to act contrary to the
express provision of CPC for cutting short litigation.
Respondent 1 decree-holder filed a petition under Section 151 CPC

before the executing court on 23-4-1999 to remove the obstructer,

namely, the appellant herein. Though an application was filed under

Section 151 CPC, it appears that the court recorded evidence and

ultimately came to the conclusion that the application filed by

Respondent 1 decree-holder under Section 151 CPC was not

maintainable. According to the executing court the decree-holder ought

to have filed an application under Order 21 Rule 97 CPC where after

the procedure prescribed by the following rules had to be observed

and the matter adjudicated. In view of its findings the executing court
 on 22.11.1999 dismissed the petition filed under Section 151 CPC.

Respondent 1 decree-holder preferred a revision against the order of

the executing court dismissing his application under Section 151 CPC.

Having regard to the fact that the executing court substantially

followed the procedure laid down by Rules 98 to 100 and thereafter
passed an adjudicatory order, we may hold in favour of Respondent 1 to
the extent that the application though filed with the label of Section 151
CPC was in fact treated as one under Order 21 Rule 97. This, however,
does not resolve the controversy before us because even if we treat the
said application under Section 151 CPC as one under Order 21 rule 97
CPC, the order passed in that proceeding must be treated as a decree
against which only an appeal lay to the appellate court. Respondent 1 did
not appeal to the High Court and instead preferred a revision petition
under Section 115 CPC. We have no doubt that in view of the provisions
of Order 21 Rule 103 CPC which provide for appeal against the order
passed by the executing court in such matters, no revision could be
entertained by the High Court against that order in view of the clear
prohibition contained in Section 115(2) CPC, which in clear terms provides
that the High Court shall not under Section 115 vary or reverse any decree
or order against which an appeal lay either to the High Court or to any
other court subordinate thereto. The High Court appears to have interfered
with the order of the executing court because it was under the impression
that a long drawn out litigation, perhaps engineered by the judgment-
debtor, would result in great injustice, and therefore, if some relief could
be granted by cutting short the procedure of appeal, etc. the power under
Section 115 could be exercised to do justice between the parties. (S.
Rajeswari v. S.N. Kulasekaran; (2006) 4 SCC 412)
Ss. 151, 114 & 115 – Withdrawal of suit permitted without permission
to file fresh suit – Recall of withdrawal order – S. 151 CPC can be
invoked.
As indicated hereinbefore, the only point which falls for our
consideration in these appeals is whether the trial court was entitled in law
to recall the order by which it had allowed the plaintiff to withdraw his suit.
From the order of the learned Civil Judge (Senior Division), 9 th
Court at Alipore, it is clear that he had had no intention of granting any
leave for filing of a fresh suit on the same cause of action while allowing
the plaintiff to withdraw his suit. That does not, however, mean that by
passing such an order the learned court divested itself of its inherent
power to recall its said order, which fact is also evident from the order
itself which indicates that the court did not find any scope to exercise its
inherent powers under Section 151 of the Code of Civil Procedure for
recalling the order passed by it earlier. In the circumstances set out in the
order of 24.9.2004, the learned trial court felt that no case had been made
out to recall the order which had been made at the instance of the plaintiff
himself. It was, therefore, not a question of lack of jurisdiction but the
conscious decision of the court not to exercise such jurisdiction in favour
of the plaintiff. (Jet Ply Wood (P) Ltd. v. Madhukar Nowlakha, (2006) 3
SCC 699).
O.1 R.10 – By mere impleadment it cannot be said that defences
available to subsequent purchaser regarding non-service of notice
u/s 106 of T.P.A have been waived – these would be still be open –
„No‟ – These would be open.
By mere impleadment of respondents 2 and 3 it cannot be said that
the defence, which were available, are waived. Petitioner‟s defence
including that of notice is still open. Reading the application filed by
respondents 2 and 3 and the order it appears that respondents 2 and 3
have sought impleadment on the ground that the suit for recovery of rent
is pending. In this view of the matter I do not find any error in the orders
passed by their trial court and affirmed by the revisional court whereby the
courts have allowed the application for impleadment of the respondents.
(Ram Pyare Singh v. Ram Govind & Ors., 2006(2) ALJ 624)
O. 6 R. 17 – Rejection of application for Amendment of pleadings –
Whether knowledge of fact could be brought by way of amendment
of pleading after 20 Yrs. from initiation of proceeding- Held, “No” and
it become ground for rejection of amendment of pleading.
If a particular fact substantiating the case taken by a party, was
within its knowledge from the very beginning, it should be pleaded much
before commencement of trial of the suit itself. The proviso to Order VI,
Rule 17 C.P.C. has been added by Amending Act 22 of 2002 whereby the
right for bringing amendment in the pleadings has been specifically
provided that no application for amendment shall be allowed after the trial
has commenced, unless the court comes to the conclusion that in spite of
due diligence, the party could not have raised the matter before the
commencement of trial. In the present case this fact was within the
knowledge of the plaintiff and if such prayer for amendment in pleadings
has been made after 20 years of filling of the suit, the same has rightly
been rejected by the court below. (Prabhu Niwas & anr. V. Laxmi Narain
& Ors., 2006(2) ALJ 716)
Order 6 Rule 17 – All amendments necessary for determining the real
question in controversy must be allowed provided it does not cause
injustice to the other party – However, the court should not go into
the correctness or falsity of amendment.
Order 6 Rule 17 consists of two parts. Whereas the first part is
discretionary (may) and leaves it to the court to order amendment of
pleading, the second part is imperative (shall) and enjoins the court to
allow all amendments which are necessary for the purpose of determining
the real question in controversy between the parties. The real controversy
test is the basic or cardinal test and it is the primary duty of the court to
decide whether such an amendment is necessary to decide the real
dispute between the parties. If it is, the amendment will be allowed; if it is
not, amendment will be refused.
The object of Order 6 Rule 17 is that the courts should try the
merits of the case that come before them and should, consequently, allow
all amendments that may be necessary for determining the real question
in controversy between the parties provided it does not cause injustice or
prejudice to the other side. The rule of amendment is essentially a rule of
justice, equity and good conscience and the power of amendment should
be exercised in the larger interest of doing full and complete justice to the
parties before the court. The court always gives leave to amend the
pleadings of a party unless it is satisfied that the party applying was acting
mala fide. The amendment to pleading should be liberally allowed since
procedural obstacles ought not to impede the dispensation of justice.
While considering whether an application for amendment should or
should not be allowed, the court should not go into the correctness or
falsity of the case in the amendment. Likewise, it should not record a
finding on the merits of the amendment and the merits of the amendment
sought to be incorporated by way of amendment are not to be adjudged at
the stage of allowing the prayer for amendment. (Rajesh Kumar
Aggarwal v. K.K. Modi; (2006) 4 Supreme Court Cases 385)
O. 21 R. 2 – Execution of decree – Payment out of Court to decree holder-
Validity in matrimonial proceedings – Factum of payment cannot be
believed.
 The mandatory provision of Order XXI Rule 2 CPC prohibits the
judgment debtor to take the plea to payment if the judgment debtor fails to
move application in the court concerned that payment was made to the
decree holder even though payment is said to have been made but no
application was moved by the judgment debtor in the court that he had
paid Rupees 1,40,000/- and fact be recoded by the court when the
judgment debtor is an advocate at the same place there was no hurdle in
moving such application to the court. It shows that such application was
not moved because really payment was not made that is why when
execution application was moved in the family court it was transferred to
the court of District Judge and process for attachment started. The
objection was raised by moving application. The law has been laid down in
the Sultana Begum‟s case by Hon‟ble Apex Court that Order XXI Rule 3
places a restraint on the exercise of that power by providing that the
executing court shall not recognize or look into any uncertified payment of
money or any adjustment of decree. If any such adjustment or payment is
pleaded by the judgment debtor before the executing court the later in
view of the legislative mandate has to ignore it if it has not been certified
or recorded by the Court. (Desh Raj Singh V. Smt. Vandana Chaudhary,
AIR 2006 All. 154)
Order 21 Rule – 90 – Mere irregularity or fraud is not sufficient to set
aside auction sale unless coupled with substantial injury to the
applicant.
Before the sale can beset aside merely establishing a material
irregularity or fraud will not do. The applicant must go further and establish
to the satisfaction of the Court that the material irregularity or fraud has
resulted in substantial injury to the applicant. Conversely even if the
applicant has suffered substantial injury by reason of the sale, this would
not be sufficient to set the sale aside unless substantial injury has been
occasioned by a material irregularity or fraud in publishing or conducting
the sale.
A charge of fraud or material irregularity under Order XXI Rule 90
must be specifically made with sufficient particulars. Bald allegations
would not do. The facts must be established which could reasonably
sustain such a charge. In the case before us, no such particulars have
been given by the respondent of the alleged collusion between the other
respondents and the auction purchaser. There is also no material
irregularity in publishing or conducting the sale. There was sufficient
compliance with the orders of Order XXI Rule 67(1) read with Order XXI
Rule 54(2). No doubt, the Trial Court has said that the sale should be
given wide publicity but that does not necessarily mean by publication in
the newspapers. The provisions of Order XXI Rule 67 dearly provide if the
sale is to be advertised in the local newspaper, there must be specific
direction of Court to that effect. In the absence of such direction, the
proclamation of sale has to be made under Order XXI Rule 67(1) “as
nearly as may be in the manner prescribed by Rule 54, sub rule (2)”.
In any even the respondent No. 1 has been unable to establish that
he had suffered substantial injury by reason of any irregularity or fraud.
The lack of notice under the Partition Act, 1893 to the respondent No. 1
was immaterial as it was not the appellant‟s case that he would have
purchased the property. No such intention has ever been expressed. The
respondent No. 1‟s only grievance is that the property could have fetched
a higher value. Apart from the alleged affidavit of the said Sidhique, no
other material has been produced by him in support of the such
submission. On the other hand in fixed the upset price, the Advocate
Commissioner had taken into account the certificate of market value in
respect of the property issued by the Sub-Registrar Golkunda dated 13th
May, 2005 at Rs. 10 lakhs. The respondent No. 1 has never complained
that the upset price had been wrongly fixed. The appellant‟s offer was
above the market value. Additionally, the respondent No. 1 was given
several opportunities to produce the purchaser, who was allegedly willing
to pay a higher price. The purchaser was never produced. As against this,
the appellant has duly deposited the entire amount of Rs. 12 lakhs in
Court. The District Judge was in the circumstances correct in rejecting the
so-called offer of the said Sidhique. In the circumstances, the High Court
erred in setting aside the sale in favour of the appellant. The decision of
the High Court is unsustainable both in fact and in law. (Saheb Khan v.
Mohd. Yusufuddin & Ors.; 2006(3) Supreme 474)
O. 22 R. 3 – Abatement of suit- Failure of plaintiff to move formal
substitution application before trial Court -Would not amount to
abatement of suit.
It is true that a formal substitution application is required to be given
in the trial court also for the purpose of incorporating amendment in the
array of the parties in the plaint. But in case the plaintiff has failed to move
this formal application it will not amount abating the suit- In the present
view of the matter the application moved by the petitioner had absolutely
no merit and it has rightly been rejected by the courts below. (Committee
of Management, Rama Devi Balika Inter College, Allahabad v. Mohd.
Iqbal Khan & Ors., 2006 (2) ALJ 784.)
O. 22 R – 3 & 4 – Abatement of appeal on death of one of the
respondents – No abatement if decree is severable.
As held in Amarjit Singh Kalra case, (2003) 3 SCC 272, whether an
appeal partially abates on account of the death of one or the other party
on either side has to be considered depending upon the fact as to whether
the decree obtained is a joint decree or a severable one. In case of a joint
and inseverable decree if the appeal abated against one or the other, the
same cannot be proceeded with further for or against the remaining
parties as well. If otherwise, the decree is a joint and several or separable
one, being in substance and reality a combination of many decrees, there
can be no impediment for the proceedings being carried on with among or
against those remaining parties other than the deceased. Wherever the
plaintiffs or appellants or petitioners are found to have distinct, separate
and independent rights of their own and for the purpose of convenience or
otherwise, joined together in a single litigation to vindicate their rights, or in
the case of the defendants or respondents having similar rights, contesting
the claims against them, the decree passed by the court thereon is to be
viewed in substance as the combination of several decrees in favour of
one or the other parties and not as a joint and inseverable decree.
The gift deed in question and the facts relating to its revocation
clearly show that each of the respondent daughters had a distinct and
separate share by metes and bounds and also that each one of them had
received Rs. 10,000 in lieu of the plots of land and therefore, it cannot be
held that abatement of the appeal against Respondent 1 would abate the
appeal qua the other respondents. (N. Khosla v. Rajlakshmi, (2006) 3
SCC 605).
Order 23 Rule 3 – Consent decree - Is a contract with imprimatur of court
superadded to it.
A consent decree has been held to be a contract with the
imprimatur of the court superadded. It is something more than a mere
contract and has the elements of both a command and a contract.
(Manish Mohan Sharma v. Ram Bahadur Thakur Ltd.; (2006) 4 SCC
416)
Order 33 – Application to file appeal as indigent person – Applicant
must get fair opportunity to satisfy the court that he is an indigent
person.
The appellant claimed to be an indigent person and entitled to
exemption from payment of requisite court fee. It is not disputed before us
that the respondent herein filed counter affidavit opposing the application.
The counter affidavit opposing the application. The counter affidavit was
served on the appellants on 12.3.2004 and the matter came up for hearing
before the Court on 15.3.2004 with Saturday and Sunday intervening. The
appellants request for grant of time to file a reply was refused. On the
same day, a report of the Tehsildar was also produced. The grievance of
the Appellants therefore, is that they had no opportunity to meet the case
set up by the respondent in its counter affidavit, nor did it have opportunity
of controverting the facts stated in the Tehsildar‟s report.
We do not wish to make any observation with regard to the merit of
the claim of the appellants but we feel that in a case of this nature a fair
opportunity should be given to the appellants to satisfy the Court that he
being an indigent person is entitled to be exempted from payment of
requisite court fee. (M/s. Vivek Financial Services v. M/s. Coimbatore
Stock Exchange Ltd.; 2006(3) Supreme 5)
O. 34 Rr. 7 & 8 – Suit for redemption of mortgage –Whether decree
passed in suit for redemption of mortgage would be final or preliminary –It
would be depend upon terms & condition mentioned therein.
Whether the decree is preliminary or final in a suit for redemption of
mortgage will depend upon the terms & condition mentioned therein. In
case where all the dispute between the parties with regard to payment or
mortgaged money & interest accrued thereon in finally settled & no further
accounting etc., is required to be done, such a decree would be final
decree as it finally determines the right of the parties. (Ghulam Ashraf v.
Abdul Khalik & Anr., AIR 2006 ALL. 149)
O. 39 R. 1& 2 – Suit for injunction- Serious challenge to the
jurisdiction of Court as well as to valuation of suit sufficiency of
Court fee and maintainability of suit-Whether should be decided
before granting injunction “Yes”
Whenever a serious challenge is made to the jurisdiction of the
court as well as so to the valuation of the suit and sufficiency of the court
fee or to the maintainability of the suit, then if there appears prima facie
some substance in those pleas, the proper procedure for the court is to
first decide these issues and then to decide the injunction application and
other matters. The learned Addl. Civil Judge has observed in the
impugned order that the preliminary issues could not be decided before
hearing of the injunction because other defendants had not put in
appearance so far. The approach adopted by the learned Addl. Civil
Judge (Senior Division) was totally erroneous in this regard. (Smt. Deepa
Sharma & Ors. V. Smt. Raj Kaumari Devi & Ors, 2006 (2) ALJ 636
(DB).)
O. XLI Rule 27 – Lacunae cannot be filled up by filing additional
evidence in appeal.
Mr. Sorabjee appearing on behalf of the respondents rightly
submitted that Order XLI Rule 27 of the Code of Civil Procedure cannot be
invoked by a party to fill up the lacunae in his case. The State found itself
in a dilemma when confronted with two sets of documents conflicting with
each other. There was no plea that the documents sought to be produced
by way of additional evidence could not be produced earlier despite efforts
diligently made by the State or that such evidence was not within its
knowledge. In fact no ground whatsoever was made out for adducing
additional evidence, and the sole purpose for which the State insisted
upon adducing additional evidence was to persuade the Court to accept
the point of view urged on behalf of the State, since the evidence on
record did not support the case of the appellants/State. Having considered
all aspects of the matter we are satisfied that the High Court rightly
rejected the applications filed by the State for adducing additional
evidence at the stage of appeal which was intended only to fill up the
lacunae in its case.
The trial court has also considered the evidence exhaustively and
recorded a categoric finding that there was no evidence to prove that the
records were tampered with. In fact there was no pleading to this effect in
the suit. It considered Ext. 385 Hali Maji register and found that the
witness examined on behalf of the plaintiffs at Ext. 25, himself stated that
Ext. 385 was prepared from disposal/settlement register and that if it did
not tally with the original, it ought to be duly corrected. Thus, as between
the Fesal Patrak and the Haji Maji register, the entries in the Fesal Patrak
had to be accepted since Hall Maji register is prepared on the basis of the
Fesal Patrak. Having considered the entire documentary evidence on
record, it reached the conclusion that 53 vighas 18 vasas of land bearing
Survey Nos. 371 and 372 belonged to the defendants as owners. (State
of Gujarat and another v. Mahendrakumar Parshottambhai Desai
(Dead) by L. Rs. 2006(3) Supreme 754 SC)

CONSTITUTION OF INDIA:

Article 16 – Pay scales – Differentiation in pay scales of two groups

of storekeepers – whether grant of higher pay scale to storekeeper
having higher educational qualification is discriminatory – „No‟.
Differentiation in pay scale of two groups of store keepers is not

something new brought about for the first time in recent past of in

last one or two revisions of pay scales. It has always been there

since very inception of creation of two different grades in

storekeepers in the U.P. State Bridge Corporation. A different grade

in the same service cadre was created in higher pay scale of Rs. 250-

425 and appointees having amended qualification were placed in

higher pay scale. ON revision of pay scales from time to time both

the categories of storekeepers were treated as distinct and separate

class. They were never fused together and integrated into one class.

Therefore, no question of unconstitutional discrimination could arise

by reason of differential treatment being given to them in the fixation

of their pay scale and its revision from time to time and no fault can

be found in fixation of higher pay scale to the store keepers having

Diploma in Material Management, as their better qualification have

reasonable nexus with their duties and responsibilities and quality of

work on their respective posts.

Unless the petitioner placed relevant material before the Court

that change in qualification was not required by expediency or need

of public service and had not rational nexus with the duties and

responsibilities for the post the fixation of high pay scale for the

appointees having higher and better qualification cannot be found

faulty. According fixation of higher pay scale for appointees

subsequent to the appointment of the petitioner cannot be said to be

discriminatory and violative of Art. 14 and 16 of the constitution.

(Ram Krishna Mishra v. State of U.P. & Ors., 2006(2) ALJ 500)

Articles 16, 309 – U.P. Dependents of Govt. Servant Dying in Harness

Rules (1974), R. 5 - Compassionate Appointment – Whether denial of
compassionate appointment on the ground that family of claimant
was not living in indigent conditions was proper – „Yes‟
The petitioner claimed that his brothers are handicapped and there
is no other source of livelihood and as such the dependent of the
deceased employee must be given appointment by the Respondents on
compassionate ground. It has been found by the Committee that the
family is not living in indigent condition, which is a relevant consideration
for offering appointment to the dependent of the deceased family who died
in harness. It may be that the dependent may not be having independent
source of income but the family still may not be in indigent condition.
(Sunil Kumar v. Union of India & Ors., 2006(2) ALJ 709)
Article 102 (1)(a) & 103 – Office of profit – Require to be interpreted in a

realistic manner – Payment of honoraria, daily allowance etc. are in nature

of remuneration hence amount to profit – The office of profit would

nevertheless be an office of profit irrespective of the fact that the holder

chooses not to receive them.

The term „holds an office of profit‟ though not defined, has been the
subject matter of interpretation, in several decisions of this Court. An office
of profit is an office which is capable of yielding a profit or pecuniary gain.
Holding an office under the Central or State Government, to which some
pay, salary, emolument, remuneration or non-compensatory allowance is
attached, is „holding an office of profit‟. The question whether a person
holds an office of profit is required to be interpreted in a realistic manner.
Nature of the payment must be considered as a matter of substance
rather than of form. Nomenclature is not important. In fact, mere use of the
word „honorarium‟ cannot take the payment out of the purview of profit, if
there is pecuniary gain for the recipient. Payment of honorarium, in
addition to daily allowances in the nature of compensatory allowances,
rent free accommodation and chauffeur driven car at State expense, are
clearly in the nature of remuneration and a source of pecuniary gain and
hence constitute profit. For deciding the question as to whether one is
holding an office of profit or not, what is relevant is whether the office is
capable of yielding a profit or pecuniary gain and not whether the person
actually obtained a monetary gain. If the “pecuniary gain” is “receivable” in
connection with the office then it becomes an office of profit, irrespective
of whether such pecuniary gain is actually received or not. If the office
carries with it, or entitles the holder to, any pecuniary gain other than
reimbursement of out of pocket/actual expenses, then the office will be an
office of profit for the purpose of Article 102 (1)(a). (Paras 5 & 6)
It is well settled that where the office carries with it certain
emoluments or the order of appointment states that the person appointed
is entitled to certain emoluments, then it will be an office of profit, even if
the holder of the office choose not to receive/draw such emoluments.
What is relevant is whether pecuniary gain is “receivable” in regard to the
office and not whether pecuniary gain is, in fact, received or received
negligibly. In this case, as noticed above, the office carried with it a
monthly honorarium of Rs. 5000/-, entertainment expenditure of Rs.
10,000/-, staff car with driver, telephones at office and residence, free
accommodation and medical treatment facilities to self and family
members, apart from other allowances etc. That these are pecuniary gains
cannot be denied. The fact that the petitioner is affluent or was not
interested in the benefits/facilities given by the State Government or did
not, in fact, receive such benefits till date, are not relevant to the issue. In
this view, the question whether petitioner actually received any pecuniary
gain or not is of no consequence. (Jaya Bachchan v. Union of India &
Ors.; 2006(4) Supreme 378)
Article 142 – Directions made by the Supreme Court under this
Article are not binding on subordinate courts – Courts should be
careful and should follow the ratio decidendi and not the relief given
on specific facts.
Many a time, after declaring the law, this Court in the operative part
of the judgment, gives some directions which may either relax the
application of law or exempt the case on hand from the rigour of the law in
view of the peculiar facts or in view of the uncertainty of law till then, to do
complete justice. While doing so, normally, it is not stated that such
direction/order is in exercise of power under Article 142. It is not
uncommon to find that courts have followed not the law declared, but the
exemption/relaxation made while moulding the relief in exercise of power
under Article 142. When the High Courts repeatedly follow a direction
issued under Article 142, by treating it as the law declared by this Court,
incongruously the exemption/relaxation granted under Article 142
becomes the law, though at variance with the law declared by this Court.
The courts should therefore be careful to ascertain and follow the ratio
decidendi, and not the relief given on the special facts, exercising power
under Article 142. One solution to avoid such a situation is for this Court to
clarify that a particular direction or portion of the order is in exercise of
power under Article 142. Be that as it may. (Indian Bank v. ABS Marine
Products Pvt. Ltd. 2006(3) Supreme 647)
Article – 226 – Aligarh Muslim University Act, S. 5 – Admission to
P.G. Medical Courses – Whether reservation claim for 50% Muslim
quota in Aligarh Muslim University under Section 5 of (Act No. 40 of
1920) is Constitutional - “No”, it is unconstitutional and
impermissible.
The claim of 50% Mohammdan quota for the post graduate medical
courses by the University is declared as unconstitutional and
impermissible and they shall make no claim of minority quota in like or
other manner in future. In this regard, the Union‟s communication dated
25.2.2005 vetting the purported minority status of the Aligarh Muslim
University by permitting their c .laim of Muslim reservation is quashed and
set aside. The admission of Muslim students made on the invalidly
claimed quotas of 50% is maintained on account of pure practicality. (The
Aligarh Muslim University, Aligarh v. Malay Shukla & Ors., 2006 (2)
ALJ 528.)
Article 235 & 237 – Supervisory jurisdiction of High Court – Extends
over all courts subordinate to it and can be exercised in respect of
judicial as well as administrative matters.
Article 235 of the Constitution of India confers a supervisory
jurisdiction upon the High Court over all the courts subordinate to it. Such
jurisdiction can be exercised by the High Court in respect of judicial as
also administrative matters. Article 236 of the Constitution of India, as
referred to by Dr. Dhawan, provides for an interpretation clause. The
expression “District Judge” would not only be an officer who has been
specified in Clause (a) of Article 236 but would also be such officer who
would otherwise be within the control of the High court in terms of Article
235 of the Constitution of India.
The High Court exercises control over the subordinate courts not
only in terms of the Constitution of India as envisaged under Articles 235
and 227 thereof but also under other Acts, viz., Code of Civil Procedure
and Code of Criminal Procedure. The officers appointed as the Judge,
Family Court are selected by the High Courts from amongst the existing
cadre of the District Judges. The ACRs of the said Judges are recorded by
the High Court. It remains undisputed that there is a Committee of Judges
Incharge of the Administration of the Family Courts. It may be true that the
Act is a Federal Legislation but such Federal Legislation has been
enacted by the Parliament for other purposes also as, for example, the
Motor Vehicles Act, 1988 in terms whereof Motor Accident Claims
Tribunals are constituted. (M.P. Gangadharan & Anr. V. State of Kerala
& Ors.; 2006(4) Supreme 489)
Art. 311 – Termination of services – if it is in accordance with
condition of appointment letter – Order cannot be termed as
stigmatic in nature.
Where the appointment is totally irregular no opportunity is required
while dispensing with his service. No doubt, it is mentioned in the
impugned order that the working of the petitioner was not upto the mark,
but that is not the foundation of the order. The foundation of the order is
that the appointment was temporary which was terminable without notice
and thus in accordance with the condition of appointment letter, the order
has been passed and in this particular case the petitioner was not entitled
to any opportunity as the order cannot be termed as stigmatic. It is also
well settled that temporary employee does not have any right to the post
and that too one whose appointment itself is hit by the principles
enshrined in Articles 14 and 16 of the Constitution. (Yogesh Verma v.
District Judge, Aligarh, 2006(2) ALJ 620)
Art. 311 – Compulsory retirement – Order of compulsory retirement
passed after scrutinizing entire service record of employee – Cannot
be said to be illegal or malafide.
The controversy regarding an order passing the compulsory
retirement cannot be said to be illegal, malafide, if the same has been
passed by the competent authority after scrutinizing the entire service
record of an employee. As mentioned above, the courts has perused the
complete service record of the petitioner, therefore, the contention of the
petitioner to this effect cannot be accepted that the order of compulsory
retirement against the petitioner is in any way illegal, punitive and has
passed without taking into consideration the performance of the petitioner.
(Ramesh Kumar Srivastava v. State of U.P. & Anr., 2006(2) ALJ 686)

CONSUMER PROTECTION ACT (1986):

Section 14(1)(c), 18 & 22(1) – Consumer must pay higher price as
stipulated in allotment order in terms of his undertaking to pay
higher cost due to fluctuations in price of building material – No
relief can be given on the ground that there is no actual increase in
the price.
The respondent had filed an affidavit clearly indicating that she
undertook to abide by all the terms and conditions of the allotment letter,
the amount indicated in the allotment letter was the amount in respect of
the allotment of the house. There was nothing in the quoted clause to
show that the increase was possible only when there was an increase in
the cost of construction. Therefore, the respondent was liable to pay the
amount as stipulated in the allotment letter. (Chief Administrator, Puda
& Another v. Shabnam Virk; (2006) 4 SCC 74)
S.17- Deficiency in service- Complaint filed before State Commission-

Would not be barred by the suit of permanent injunction filed in Civil Court
as the cause of action and relief claimed in the suit and the complaint

were quite different.

The State Commission has rightly arrived at the conclusion

that the permanent injunction suit filed before the civil court would

not bar the complaint filed before it as the cause of action and

relief‟s claimed in the suit and the complaint were quite different.

(Patrick Gonsalves & Ors. V. M/s. Haven Developers Pvt. Ltd. & Ors. ,

2006 (2) ALJ 523)

CONTEMPT OF COURTS ACT:

S. 2(b) – Willful disobedience of order of Court – Whether defying of

interim order of the High Court in absence of specific order – Would

amount to willful disobedience of order of court.

It is clear that the staying of the operation of the termination

order is not a superfluous, meaningless or redundant order, It is not

necessary that a specific order in this regard is required to be issued

separately. The effect of the interim order is to restore the

relationship between the employer and the employee. The effect of

the interim order is, that the applicant continues to remain an

employee of the opposite parties, inasmuch as, the termination order

has been suspended and that the applicant is entitled to perform his
duty. If a specific order was required to be passed, in that

eventuality, the opposite parties would never implement any interim

order and the interim order would become meaningless. By not

giving effect to the interim order, the opposite parties are necessarily

implementing their own order, which had become ineffective by

virtue of the interim order. If the opposite parties continue to

implement the order which has been rendered ineffective for the time

being, in that eventuality, in the opinion of the Court, it would amount

to willful violation of the order to the Court. (Ram Niwas Vs. Ram Avtar

Gupta & Anr, 2006 (2) ALJ 431.)

Ss. 12 & 15 – Scope of jurisdiction – Rightness or wrongness of the order

can‟t be urged in contempt proceedings.
If any party concerned 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. Rightness or
wrongness of the order cannot be urged in contempt proceedings. Right or
wrong, the order has to be obeyed. 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 with
which is alleged. In other words, it cannot say what should not have been
done or what should have been done. It cannot traverse beyond the order.
It cannot test correctness or otherwise of the order or give additional
direction or delete any direction. That would be exercising review
jurisdiction while dealing with an application for initiation of contempt
proceedings. The same would be impermissible and indefensible. (Union
of India v. Subedar Devassy PV; 2006 Cri. L.J. 971)
S. 15 – False statements before Courts – amounts to Contempt of
Court.
 The witness made statement before National Human Rights
Commission and Supreme Court that she was intimidated threatened and
coerced to make statement in a particular way before trial Court. She
subsequently disowned it. The Supreme Court set up an enquiry to find
out truth. The findings by Inquiry Officer indicated that money has
exchanged hands which made the said witness to state in the particular
way in trial Court. The witness could not explain her assets sources of
bank deposits etc. The report of Inquiry officer was found to be acceptable
by the Supreme Court. Said witness thus, held, committed contempt of
Supreme Court.
Serious questions arise as to the role played by witnesses who
changed their versions more frequently than chameleons. Zahira‟s role in
the whole case is an eye-opener for all concerned with the administration
of criminal justice. As highlighted at the threshold the criminal justice
system is likely to be affected if persons like Zahira are to be left
unpunished. Not only the role of Zahira but also of others whose conduct
and approach before the Inquiry Officer has been highlighted needs to be
noted. The Inquiry Officer has found that Zahira could not explain her
assets and the explanations given by her in respect of the sources of bank
deposits etc. have been found to be unacceptable. We find no reason to
take a different view.
The witness was sentenced to undergo simple imprisonment for
one year and to pay cost of Rs. 50,000.00. Income-tax Authorities directed
to initiate proceedings requiring her to explain sources of acquisition of
various assets and expenses met by her during relevant period. (Zahira
Habibullah Sheikh v. State of Gujarat; 2006 Cri. L.J. 1694)

CONTRACT ACT:
Ss. 18 & 19 – Contract of insurance- Repudiation of claim- LIC cannot
wriggle out of contract by saying that it was void or viodable at its option.
The medical examiner of the Corporation having examined the
assured and submitted a favourable report regarding his health, the Life
Insurance Corporation cannot wriggle out of the contract by saying that it
was void or voidable at its option. It was not a case where the L.I.C. of
India would not have consented to the contract of the insurance but for
misrepresentation or suppression of material facts. There was no
evidence that the policyholder was treated for any serious ailment short
time before the taking of the policy. The LIC. of India, its development
officer and other staff including the medical practitioner who has examined
the person insured owe a responsibility to the person to whom they sell
insurance and they are presumed to be acting in the interest of the
Corporation. The LIC. of India cannot disclaim the liability make payment
of assured amount under life policy for the acts and omissions of its
development officer or medical practitioner appointed by it to examine the
deceased before accepting the proposal. (Smt. Meena Sahu v. Life
Insurance Corporation of India & Anr., AIR 2006 All. 156)
Section 27 – Post contractual covenants and restrictions – test of
reasonableness or principle of restraint being partial are not
applicable in India.
Under Section 27 of the Contract Act: (a) a restrictive covenant
extending beyond the term of the contract is void and not enforceable, (b)
the doctrine of restraint of trade does not apply during the continuance of
the contract for employment and it applies only when the contract comes
to an end, (c) this doctrine is not confined only to contracts of employment,
but is also applicable to all other contracts.
The legal position with regard to post-contractual covenants or restrictions
has been consistent, unchanging and completely settled in our country. The legal
position clearly crystallized in our country is that while construing the provisions
of Section 27 of the Contract Act, neither the test of reasonableness nor the
principle of restraint being partial is applicable, unless it falls within the express
exception engrafted in Section 27. Even if there were a case for reconsideration of
the 132 years old interpretation laid down in Madhup Chunder case, (1874) 14
Beng LR 76, though none is made out by the appellant, such an exercise ought not
to be undertaken in the present interlocutory proceedings. Percept D’Mark
(India) (P) Ltd. v. Zaheer Khan & Another; (2006) 6 SCC 227).

COOPERATIVE SOCIETIES:
U.P. Co-operative Societies Act, 1966 – S. 122 – Power of Member-
Secretary to suspend member of centralized service – Exercise of –
Challenge as to.
In the instant case, Hon‟ble Court observed that aggrieved party
has to allege and prove that contemplation of inquiry against him by
District Committee cannot be even thought or imagined to exist in facts
and circumstances of particular case. If he can show that, he can
successfully challenge order of suspension passed by the Member-
Secretary. (Sripal Singh v. State of U.P. & Ors, 2006 (2) ALJ 384)
 U.P. Cooperative Societies Act, 1965 – S. 128 – Order of Dy. Registrar
holding 1.8.1949 as date of birth of Respondent No. 4 – Writ Petitioner
having no locus standi to challenge the order.
It appears that after retirement, respondent No. 4 challenged his
retirement under Section 128 of U.P. Cooperative Societies Act and
moved an application before Deputy Registrar, Cooperative Societies
Agra Region, Agra (respondent No. 3) claiming that he has been
prematurely relieved from service on 31.5.2005 as actual date of his
birth is 1.8.1949. Vide order dated 18.11.2005, respondent No. 3 held
that respondent No. 4 was wrongly retired on the basis of date of
birth as 22.5.1945 whereas his actual date of birth is 1.8.1949, hence
he is entitled to continue in service for further period of four years.
The petitioner has come up with the writ petition aggrieved by
the order passed by the Deputy Registrar, Cooperative Societies, by
which the date of birth of respondent No. 4 has been held to be
1.8.1949.
The grievance of the petitioner is that in case respondent No. 4
would have been retired on the basis of his date of birth 22.5.1945
and had the Dy. Registrar not set aside the order of superannuation
of respondent No. 4, the petitioner would have been appointed in
service in place of respondent No. 4.
In my opinion the contention of Sri K.N. Misra has force. The
petitioner has no locus standi in the matter, nor he is an aggrieved
person. (Rakesh v. State of U.P. & Others; 2006(2) AWC 1778)

CRIMINAL TRIAL:

Code of Criminal Procedure – S. 227 & 228 (1)(b) – Discharge of accused

– test to be applied – whether there is sufficient ground for proceeding

against the accused or whether there is ground for presuming that

accused has committed the offence.

Reading [Ss. 227 and 228] together in juxtaposition, as they have

got to be, it would be clear that at the beginning and the initial stage of the
trial the truth, veracity and effect of the evidence, which the prosecutor
proposes to adduce, are not to be meticulously judged. Nor is any weight
to be attached to the probable defence of the accused. It is not obligatory
for the judge at that stage of the trial to consider in any detail and weigh in
a sensitive balance whether the facts, if proved, would be incompatible
with the innocence of the accused or not. The standard of test and
judgment which is to be finally applied before recording a finding regarding
the guilt or otherwise of the accused is not exactly to be applied at the
stage of deciding the matter under Section 227 or Section 228 of the
Code. At that stage the Court is not to see whether there is sufficient
ground for conviction of the accused or whether the trial is sure to end in
his conviction. Strong suspicion against the accused, if the matter remains
in the region of suspicion, cannot take the place of proof of his guilt at the
conclusion of the trial. But at the initial stage if there is a strong suspicion
which leads the Court to think that there is ground for presuming that the
accused has committed an offence then it is not open to the Court to say
that there is no sufficient ground for proceeding against the accuse. If the
evidence which the prosecutor proposes to adduce to prove the guilt of
the accused even if fully accepted before it is challenged in cross-
examination or rebutted by the defence evidence, if any, cannot show that
the accused committed the offence, then there will be no sufficient ground
for proceeding with the trial. (Rajbir Singh v. State of U.P. & Another;
(2006) 4 SCC 51)

Code of Criminal
Procedure – S. 311 –
Recalling the witness
for further Cross-
examination to
enable him to resile
from his earlier
statement – Not
proper.
In the present case the informant had stuck to his testimony when
he was examined as P.W. 1. The said testimony was even consistent with
the dying declaration given by the accused (deceased?). Now after nine
witnesses have been examined and for some reason or the other, it is
claimed the he has turned hostile. The Court is not to act in a manner so
as to facilitate a witness to turn hostile, but what was emphasized in
Zahira Sheikh was that effort should be made to enable a witness to
speak truth. The decision was aimed as eliciting the truth from a witness
who may have turned hostile, as she may have been prompted by
extraneous consideration to act in that manner. (Mangesh Kumar v.
State of U.P., 2006 Cri.L.J. 1436).
Code of Criminal Procedure – S. 311 – Summoning of Investigating
Officer for Re-examination – No party can prevent Court from doing
so – It is responsibility of Court to do justice and separate chaff from
grain.
Second part of S. 311 Cr.P.C. empowers the court to summon or
recall or re-examine any person/witness if his evidence appears to be
essential for just decision of the case. Such a power is inherent in a
criminal court for the reason that in the criminal court every effort is made
to reach to the truth. It appears that learned Sessions Judge felt necessity
to recall the Investigating Officer for re-examination. In my opinion, none
of the parties can agitate this matter and they cannot prevent the court
from exercising its power under Section 311 Cr.P.C. Ultimately, it is the
responsibility of the courts to do justice and every effort should be made
by the court to separate this chaff from grain. (Rajan v. Union of India,
2006 Cri.L.J. 1415)
Circumstantial evidence – Conviction can be sustained even if there
is no direct evidence or direct witnesses have turned hostile, if
circumstantial evidence is conclusive in nature.
It has been submitted by the learned counsel for the appellant that
there is no direct evidence to prove the participation of the appellant in the
commission of the offence in view of the rejection of the evidence of the
eyewitnesses. In a case based on circumstantial evidence, there may be
no direct evidence to prove the manner of assault or the actual
participation of an accused in the assault on the deceased resulting in his
death, but if the circumstantial evidence is conclusive in nature, a
conviction on the basis of such circumstantial evidence may be recorded.
It must be shown that the circumstances established on record are
incriminating in nature, and the chain of circumstances established by the
prosecution is so complete as not to be consistent with any other
hypothesis except the guilt of the accused.
Learned Counsel for the appellant also submitted before us that the
evidence of PWs 15 & 13 to the effect that the appellant was last seen in
the company of the appellant became irrelevant in view of the fact that the
prosecution had led direct evidence to prove the assault on the deceased.
In our view, the submission does not help the appellant. In this case, the
circumstance that the deceased was last seen by PWs 15 and 13 in the
company of the appellant, is a circumstance which considered with other
evidence on record has been found to prove the guilt of the accused. It is
not as if the prosecution has tried to set up a case other than what was
sought to be proved by the eye witnesses examined in the case who
turned hostile. Since the eyewitnesses turned hostile, the circumstance
that the appellant had accompanied the deceased and was last seen by
him was only treated as one of the circumstances in the chain of
circumstances to prove his guilt. (Deepak Chandrakant Patil v. State of
Maharashtra, 2006(3) Supreme 162 SC)
Last seen – Whether sufficient to have conviction – Theory comes
into play when the time gap between the point of time when the
deceased was last seen with accused and deceased found dead is
small.
The last seen theory comes into play where the time gap between
the point of time when the accused and deceased were last seen alive
and the deceased is found dead is so small that possibility of any person
other than the accused being the author of the crime becomes impossible.
Even in such a case courts should look for some corroboration.
(Ramreddy Rajeshkhanna Reddy and another v. State of Andhra
Pradesh, 2006(3) Supreme 175 SC)
Suspicion – However grave cannot be a substitute for proof.
It is well settled that suspicion, however, grave may be, cannot be a
substitute for a proof and the courts shall take utmost precaution in finding
an accused guilty only on the basis of the circumstantial evidence.
(Ramreddy Rajeshkhanna Reddy and another v. State of Andhra
Pradesh, 2006(3) Supreme 175 SC)
Whether prosecution witness can be examined at defence U/s. 233
(3) Cr.P.C. – Not permissible to defeat the ends of Justice –
Provisions of Section 233(3) Cr.P.C. cannot be understood as
compelling the attendance of any prosecution witness examined,
cross-examined to be juxtaposed as DW.
Section 233 itself deals with entering upon defence by the
accused. The application for recalling and re-examining persons already
examined, as provided under Section 311 Cr.P.C., was already rejected.
The power to summon any person as a witness or recall and re-examine
any person already examined is the discretionary power of the Court in
case such evidence appears to it to be essential for a just decision of the
case. Under Section 233 Cr.P.C. the accused can enter upon defence and
he can apply for the issue of any process for compelling the attendance of
any witness in his defence. The provisions of sub-section (3) of Section
233 cannot be understood as compelling the attendance of any
prosecution witness examined, cross-examined and discharged to be
juxtaposed as DWs. In the present case PW-8 and PW-9 were juxtaposed
as PW-1 and DW-2. This situation is not one what was contemplated by
sub-section 3 of Section 233 Cr.P.C. When such frivolous and vexatious
petitions are filed, a Judge is not powerless. He should have used his
discretionary power and should have refused relief on the ground that it is
made for the purpose of vexation or delay or for defeating the ends of
justice. In the present case, the witnesses were examined by the
prosecution as eyewitnesses on 18.12.1990, cross-examined and
discharged. Thereafter, an application under Section311 Cr.P.C., was
rejected. They were recalled purportedly in exercise of power under sub-
section (3) of Section 233 Cr.P.C. and examined as DW-1 and DW-2 on
behalf of the accused on 17.7.1995. This was clearly for the purpose of
defeating the ends of justice, which is not permissible under the law.
(State of M.P. v. Badri Yadav and another 2006(3) Supreme 204 SC)
Non – explanation of Injuries – Effect – Non-explanation of injuries
by prosecution may not affect the prosecution case in all cases and
particularly where injuries sustained by accused are minor and
superficial or where evidence is so clear and cogent, independent
and disinterested plausible, consistent and creditworthy that it
outweighs effect of omission.
It cannot be stated as a universal rule that whenever the injuries
are on the body of the accused persons, a presumption must necessarily
be raised that the accused persons had caused injuries in exercise of the
right of private defence. The defence has to further establish that the
injuries so caused on the accused probabilises the version of the right of
private defence. Non-explanation of the injuries sustained by the accused
at about the time of occurrence or in the course of altercation is a very
important circumstance. But mere non-explanation of the injuries by the
prosecution may not affect the prosecution case in all cases. This principle
applies to cases where the injuries sustained by the accused are minor
and superficial or where the evidence is so clear and cogent, so
independent and disinterested, so probably, consistent and creditworthy,
that it far outweighs the effect of the omission on the part of the
prosecution to explain the injuries. (Raj Pal and others v. State of
Haryana, 2006(3) Supreme 585 SC)

CRIMINAL PROCEDURE CODE, 1973:

S. 2(d) – Protest petition – Cannot be treated as complaint.
The question arises whether the protest petition can be treated as
a complaint. The procedure of complaint and FIR are different. The
complaint is defined in Section 2(d) of the Code of Criminal Procedure,
which runs as under:
Section 2(d): “complaint” means any allegation made orally or in
writing to a magistrate, with a view to his taking action under this Code,
that some person, whether known or unknown, has committed an offence,
but does not include a police report.
The application under Section 156(3) Cr.P.C. can also be treated
as complaint, as has been observed by Hon‟ble Apex Court in case of
Joseph Mathuria and others v. Swami Sacchidanand Harisakhsi and
others, reported in ACC 2001 (Supplementary) page 957, but nowhere the
protest petition has been treated as complaint.
 If the magistrate has recorded the statement as referred to above
for which he was not bound, he was at obligation to proceed with the State
case not the complaint one. (Salim v. State of U.P.; 2006 Cri. L.J.
1801(Alld.))
S. 157 – FIR – Mere delay in recording of FIR and sending same to
Magistrate – Is not a circumstance to discard prosecution case.
There cannot be any manner of doubt that S. 157 of Criminal
Procedure Code requires sending of an FIR to the Magistrate forthwith
which reaches promptly and without undue delay. The reason is obvious
to avoid any possibility of improvement in the prosecution story and also to
enable the magistrate to have a watch on the progress of the
investigation. At the same time, this lacuna on the part of the prosecution
would not be the sole basis for throwing out the entire prosecution case
being fabricated if the prosecution had produced the reliable evidence to
prove the guilt of the accused persons. The provisions of S. 157 Cr.P.C.
are for the purpose of having a fair trial without there being any chance of
fabrication or introduction of the fact at subsequent stage of investigation.
The cases cited by the learned counsel for the appellants do not lay down
any law that simply because there is a delay in lodging the FIR or sending
it to the Magistrate forthwith, the entire case of the prosecution has to be
discarded. Thus in the present case the prosecution has led reliable
evidence the veracity of which is not dislodged by delay in recording of the
FIR and delay in sending the same to the Magistrate in the facts and
circumstances of this case. At best it can be taken to be an infirmity in
investigation. (Rabindra Mahto v. State of Jharkhand; 2006 Cri. L.J.
957(Alld.))
S. 174 – Inquest report – The purpose is limited to ascertainment of
cause of death – Hence no mention of the name of the accused
eyewitnesses or weapon is not fatal to the prosecution.
Section 174 is limited in scope and is confined to the ascertainment
of the apparent cause of death. It is concerned with discovering whether in
a given case the death was accidental, suicidal or homicidal or caused by
animal and in what manner or by what weapon or instrument the injuries
on the body appear to have been inflicted. It is for this limited purpose that
persons acquainted with the facts of the case are summoned and
examined under S. 175. The details of the overt acts are not necessary to
be recorded in the inquest report. The question regarding the details as to
how the deceased was assaulted or who assaulted him or under what
circumstances he was assaulted or who are the witnesses of the assault is
foreign to the ambit and scope of proceedings under S. 174. Neither in
practice nor in law it is necessary for the person holding the inquest to
mention all these details. (Radha Mohan Singh v. State of U.P.; 2006
Cri. L.J. 1121 (SC))

S. 190 – Cognizance on complaint –Averments in

complaint not constituting offence for which cognizance
was taken – Allegations amount to civil liability –
Cognizance is abuse of process of court.
We have given our anxious and thoughtful consideration to the
respective contentions of the learned counsel for the parties. On
examination of the contents of the complaints, we find that there is not
even a whisper of allegation or averment made therein constituting an
offence for which cognizance has been taken by the learned Magistrate
against the appellants. On the one hand, the complainant himself has
stated in the complaint that oral agreement to sell the plot took place in
July 2002 and on the other hand, he has alleged that he started paying the
consideration amount for the purchase of the plot between 15.7.2000 and
15.12.2002. The version of the complainant is self-contradictory and,
therefore, no prima facie case is made out against the appellant involving
them in the commission of the alleged offences.
The learned Magistrate in his order has categorically stated that the
perusal of the complaint would make it clear that there was a dispute in
respect of sale and purchase of land between the parties. In our view even
if the allegations made in the complaint are accepted to be true and
correct, the appellants cannot be said to have committed any offence of
cheating or criminal breach of trust. Neither any guilty intention can be
attributed to them nor there can possibly be any intention on their part to
deceive the complainant. No criminal case is made out by the complainant
against the appellants in his complaint and in the statements of the
complainant and his witnesses recorded by the Magistrate before taking of
the cognizance of the alleged offences. The averments of the complaint
and the statements of the complainant and his witnesses recorded by the
Magistrate would amount to civil liability inter se the parties and no
criminal liability can be attributed to the appellants on the basis of the
material on record. (Ram Biraji Devi & Anr. V. Umesh Kumar Singh &
Anr.; 2006(4) Supreme 217)
S. 190(1), 173(2), 169, 200 & 202 – Report of Police that no case is
made out against the accused – Magistrate can ignore conclusion of
I.O. and can take cognizance – No need to follow procedure under S.
200 and 202 Cr.P.C.
When a report forwarded by the police to the Magistrate under
Section 173(2)(i) is placed before him several situations arise: the report
may conclude that an offence appears to have been committed by a
particular person or persons and in such a case, the Magistrate may either
(I) accept the report and take cognizance of the offence and issue
process, or (2) may disagree with the report and drop the proceeding, or
(3) may direct further investigation under Section 156(3) and require the
police to make a further report. The report may on the other hand state
that according to the police, no offence appears to have been committed.
When such a report is placed before the Magistrate he again has option of
adopting one of the three courses open i.e. (I) he may accept the report
and drop the proceeding; or (2) he may disagree with the report and take
the view that there is sufficient ground for further proceeding, take
cognizance of the offence and issue process; or (3) he may direct further
investigation to be made by the police under Section 156(3). The position
is therefore, now well settled that upon receipt of a police report under
Section 173(2) a Magistrate is entitled to take cognizance of an offence
under Section 190(1)(b) of the Code even if the police report is to the
effect that no case is made out against the accused. The Magistrate can
take into account the statements of the witnesses examined by the police
during the investigation and take cognizance of the offence complained of
and order the issue of process to the accused. Section 190(1)(b) does not
lay down that a Magistrate can take cognizance of an offence only if the
investigating officer gives an opinion that the investigation has made out a
case against the accused. The Magistrate can ignore the conclusion
arrived at by the investigating officer and independently apply his mind to
the facts emerging from the investigation and take cognizance of the case,
if he thinks fit, exercise his powers under Section 190(1)(b) and direct the
issue of process to the accused. The Magistrate is not bound in such a
situation to follow the procedure laid down in Sections 200 and 202 of the
Code for taking cognizance of a case under Section 190(1)(a) though it is
open to him to act under Section 200 or Section 202 also. (Minu Kumari
v. State of Bihar; (2006) 4 SCC 359)
Section 197 – Sanction U/s.197 is a condition precedent and no
prosecution can be launched without such sanction – The question as
to the applicability of S. 197 may be raised even at subsequent stage.
 The complainant argued that want of sanction under Section 197(1)
Cr.P.C. did not affect the jurisdiction of the Court to proceed, but it was
only one of the defences available to the accused and the accused can
raise the defence at the appropriate time. This submission cannot be
accepted. Section 197(1), its opening words and the object sought to be
achieved by it, and the decisions of the Supreme Court, clearly indicate
that a prosecution hit by that provision cannot be launched without the
contemplated sanction. It is a condition precedent, as it were, for a
successful prosecution of a public servant when the provision is attracted,
though the question may arise necessarily not at the inception, but even at
a subsequent stage. One cannot therefore accede to the request to
postpone a decision on this question. Postponing a decision on the
applicability or otherwise of Section 197(1) Cr.P.C. can only lead to the
proceedings being dragged on in the trial court and a decision by the
Supreme Court, here and now, would be more appropriate in the
circumstances of the case especially when the accused involved are
police personnel and the nature of the complaint made is kept in mind.
The High Court has stated that killing of a person by use of
excessive force could never be performance of duty. It may be correct so
far as it goes. But the question is whether that act was done in the
performance of duty or in purported performance of duty. If it was done in
performance of duty or purported performance of duty, Section 197(1)
Cr.P.C. cannot be by passed by reasoning that killing a man could never
be done in an official capacity and consequently Section 197(1) could not
be attracted. Such a reasoning would be against the ratio of the earlier
decisions of the Supreme Court. The other reason given by the High Court
that if the High Court were to interfere on the ground of want of sanction,
people will lose faith in the judicial process, cannot also be a ground to
dispense with a statutory requirement or protection. Public trust in the
institution can be maintained by entertaining causes coming within its
jurisdiction, by performing the duties entrusted to it diligently, in
accordance with law and the established procedure and without delay.
Dispensing with of jurisdictional or statutory requirements, which may
ultimately affect the adjudication itself, will itself result in people losing faith
in the system. So, the reason in that behalf given by the High Court cannot
be sufficient to enable it to get over the jurisdictional requirement of a
sanction under Section 197(1) Cr.P.C. (Sankaran Moitra v. Sadhna Das;
(2006) 4 SCC 584).
Section 210 – Object and Conditions to be satisfied.
Section 210 requires procedure to be followed when there is a

complaint case and police investigation in respect of the same offence.

The object of enacting S. 210 of the Code is threefold: (i) it is intended

to ensure that private complaints do not interfere with the course of

justice; (ii) it prevents harassment to the accused twice; and (iii) it

obviates anomalies which might arise from taking cognizance of the

same offence more than once.

It is thus clear that before S. 210 can be invoked, the following

conditions must be satisfied. (i) there must be a complaint pending for
inquiry or trial; (ii) investigation by the police must be in progress in
relation to the same offence; (iii) a report must have been made by the
police officer under S. 173; and (iv) the Magistrate must have taken
cognizance of an offence against a person who is accused in the
complaint case. (Sankaran Moitra v. Sadhna Das; (2006) 4 SCC 584)
S. 256 – Death of complainant – If statement of the complainant and
witnesses are recorded then the death of the complainant would not
be dismissed merely on the ground of death.
The statement of the complainant was recorded under Section 200
Cr.P.C. on 20.1.2005. Sri Ram Ratan Gupta died on 8.5.2005 and after
his death, the statement of witnesses under Sections 200 and 202 Cr.P.C.
was recorded only on 22.6.2005. A perusal of the statement of pw-1
Suresh Chandra Gupta shows that he has mentioned that Ram Ratan
Gupta is dead. After the statement of the witnesses, the applicants were
summoned vide order dated 4.8.2005 which is under challenge in this
application.
It is emphatically argued by counsel for the applicants that since the
complainant is dead and offences for which the applicants have been
summoned, are cognizable offences and that charge has not been
framed, therefore, on the death of the complainant, the proceedings of the
complaint are liable to be dropped.
 Section 256 Cr.P.C. is another provision which has been taken into
consideration in the instant case. The complainant recorded his statement
on 20.1.2005, died on 8.5.2005 and thereafter the statement of other
witnesses PW-1 and PW-2 were recorded only on 22.6.2005. Thus the
complaint cannot be dismissed on the death of the complainant specially
where the other persons are represented by him.
In the circumstances, merely because the complainant is dead, the
complaint cannot be dismissed outright. Admittedly the complainant is
being represented by a pleader and it is for the Magistrate to decide
whether the attendance of the complainant is necessary. It is discretion of
the Magistrate to dispense with his attendance and proceed in the case. It
is only in such cases where the complainant has failed to appear without
any justifiable reason and the Presiding Officer is of the opinion that the
allegations made in the complaint cannot be established on account of
absence of the complainant, the complaint can be rejected for want of
complainant. In the instant case, the complainant is dead and it has
already been noticed that the presence of the complainant is not
mandatory and the proceedings cannot be quashed. (Saroj Gupta v.
State of U.P.; 2006 Cri. L. J. 1045 (Alld.))
S. 319 – Jurisdiction to add a new accused is discretionary and
extraordinary – Should be exercised very sparingly and only if
compelling reasons exist.
In Michael Machado and Anr. V. Central Bureau of Investigation and
Anr. [2000(3) SCC 262] construing the words “the court may proceed
against such person” in Section 319 of the Code, this Court held that the
power is discretionary and should be exercised only to achieve criminal
justice and that the court should not turn against another person whenever
it comes across evidence connecting that other person also with the
offence. This Court further held that a judicial exercise is called for,
keeping a conspectus of the case, including the stage at which the trial
has proceeded already and the quantum of evidence collected till then,
and also the amount of time which the court had spent for collecting such
evidence. The court, while examining an application under Section 319 of
the Code, has also to bear in mind that there is no compelling duty on the
court to proceed against other persons. In a nutshell, for exercise of
discretion under Section 319 of the Code all relevant factors including
those noticed above, have to be kept in view and an order is not required
to be made mechanically merely on the ground that some evidence had
come on record implicating the person sought to be added as an accused.
 On a careful reading of Sec. 319 of the Code as well as the
aforesaid two decisions, it becomes clear that the trial court has
undoubted jurisdiction to add any person not being the accused before it
to face the trial along with other accused persons, if the Court is satisfied
at any stage of the proceeding on the evidence adduced that the persons
who have not been arrayed as accused should face the trial. It is further
evident that such person even though had initially been named in the
F.I.R. as an accused, but not charge sheeted, can also be added to face
the trial. The trial court can take such a step to add such persons as
accused only on the basis of evidence adduced before it and not on the
basis of materials available in the charge-sheet or the case diary, because
such materials contained in the charge sheet or the case diary do not
constitute evidence. Of course, as evident from the decision reported in
Sohan Lal and Others v. State of Rajasthan, (AIR 1990 SC 2158) the
position of an accused who has been discharged stands on a different
footing. Power under Sectin 319 of the Code can be exercised by the
Court suo motu or on an application by someone including accused
already before it. If it is satisfied that any person other than accused has
committed an offence he is to be t4ried together with the accused. The
power is discretionary and such discretion must be exercised judicially
having regard to the facts and circumstances of the case. Undisputedly, it
is an extraordinary power which is conferred on the Court and should be
used very sparingly and only if compelling reasons exist for taking action
against a person against whom action had not been taken earlier. The
word “evidence” in Section 319 contemplates that evidence of witnesses
given in Court. (Lok Ram v. Nihal Singh & Anr. 2006(3) Supreme 400)

ELECTRICITY ACT:
S. 125 & 126 and S. 12 of Consumer Protection Act – Beneficial
consumer jurisdiction – Whether extends to determination of tortious
acts and liabilities.
In this case we are concerned with the scope and extent of the
beneficial consumer jurisdiction, particularly with regard to technical
subjects falling under provisions such as the Electricity Act, 2003. Under
Section 2(c) of the 1986 Act “complaint” is defined to mean allegation in
writing made by a complainant that the service provider has charged for
the services, a price in excess of the price fixed under the law for the time
being in force [See: Section 2(c)(iv)]. Under section 2(d) “consumer” is
defined to mean any person who hires or avails of any services for a
consideration which has been paid or promised or partly paid and partly
promised. Under Section 2(g) of the said 1986 Act the word “deficiency” is
defined to mean any fault, imperfection, shortcoming or inadequacy in the
quality, nature and manner of performance which is required to be
maintained by or under any law for the time being in force or under a
contract or otherwise in relation to any service. The word “goods” is
defined under section 2(i) to mean goods a defined in the Sale of Goods
Act, 1930. “Service” also defined under section 2(o) of the said 1986 Act
to mean service of any description which is made available to users in
connection with banking, financing, insurance, transport, processing,
supply of electrical energy, entertainment etc. Therefore, supply of electric
energy by the Nigam falls under section 2(o) of the said 1986 Act.
However, the question which arises for determination and which has not
been decided is: whether the beneficial consumer jurisdiction extends to
determination of tortious acts and liability arising there from by the
Consumer Forum. In this connection, it is urged on behalf of the Nigam
that assessment of the duty for unauthorized use of electricity, tampering
of meters, distribution of meters and calibration of electric current are
matters of technical nature which cannot be decided by the Consumer
Forum. It is urged that under the Electricity Act, 2003 the jurisdiction of the
civil court is excluded. In this connection reliance was placed on section
145 of the said 2003 Act under which the jurisdiction of the civil court to
entertain suits in respect of matters falling under Section 126 is expressly
barred. These are matters of assessment. According to the Nigam, the
said 2003 Act is a complete code by itself and therefore in matters of
assessment of electricity bills the Consumer Forum should have directed
the respondent to move before the competent authority under the
Electricity Act, 2003 read with rules framed there under either expressly or
by incorporation. State Commission directed to decide the matter on facts
of the case in light of the provisions of the Electricity Act, 2003. (Haryana
State Electricity Board v. Mam Chand; 2006(4) Supreme 443)

ENVIRONMENTAL PROTECTION AND POLLUTION

CONTROL:
Forest (Conservation) Act, 1980 – S. 2 & Wild Life (Protection) Act –
S. 26-A – Strengthening of dam and increase in expanse of dam
reservoir – Boundaries of sanctuary remaining unaffected – Does not
amount to non-forestry activity.
Reliance has been placed on Section 26-A of the Wild Life
(Protection) Act which stipulates that the boundaries of a sanctuary shall
not be altered except on a recommendation of the National Board
constituted under Section 5-A of the Act. The total area of the sanctuary is
about 777 square kilometers. The leased area of about 8000 acres is a
part of the total area. By raising the water level, the boundaries of the
sanctuary do not get altered. The total area of the sanctuary remains 777
square kilometers. Further, Section 2(17) of the Act, which defines land
includes canals, creeks and other water channels, reservoirs, rivers,
streams and lakes, whether artificial or natural, marshes and wetlands and
also includes boulders and rocks. It cannot be said that forest or wildlife
would be affected by carrying out strengthening works and increase of the
water level. On the facts and circumstances of the case, the strengthening
work of the existing dam in the forest cannot be described as a non-
forestry activity so as to attract Section 2 of the Forest (Conservation) Act,
1980 requiring prior approval of the Union of India. (Mullaperiyar
Environmental Protection Forum v. Union of India (2006) 3 SCC 643).

EVIDENCE ACT:
S. 3 – Hostile witness – Statement not to be rejected merely because
the prosecution declared the witness as hostile and cross-examined
him – The statement can be relied upon to the extent the version is
dependable on careful scrutiny.
Even PW-3 Mohan Yadav fully supported the prosecution case in his
examination-in-chief. In his cross-examination, which was recorded on the
same date, he gave details of the weapons being carried by each of the
accused and also the specific role-played by them in assaulting the
deceased and other injured persons. As his cross-examination could not
be completed it was resumed on the next day and then he gave a
statement that he could not see the incident on account of darkness. His
testimony has been carefully examined by the learned Sessions Judge
and also by two learned Judges of the High Court (Hon‟ble K.K. Misra, J.
and Hon‟ble U.S. Tripathi, J.) and they have held that the witness, on
account of pressure exerted upon him by the accused, tried to support
them in his cross-examination on the next day. It has been further held
that the statement of the witness, as recorded on the first day including his
cross-examination, was truthful and reliable. It is well settled that the
evidence of a prosecution witness cannot be rejected in toto merely
because the prosecution chose to treat him as hostile and cross-examined
him. The evidence of such witness cannot be treated as effaced or
washed off the record altogether but the same can be accepted to the
extent his version is found to be dependable on a careful scrutiny thereof.
(See Bhagwan Singh v. State of Haryana, AIR 1976 SC 202; Rabinder
Kumar Dey v. State of Orissa, AIR 1977 SC 170: Syed Akbar v. State of
Karnataka; AIR 1979 SC 1848 and Khujji @ Surendra Tiwari v. State of
Madhya Pradesh; AIR 1991 SC 1853). The evidence on record clearly
shows that the FIR of the incident was promptly lodged and the testimony
of PW-1 Ganesh Singh, PW-4 Ramji Singh and also PW-3 Mohan Yadav
finds complete corroboration from the medical evidence on record. We
find absolutely no reason to take a different view. (Radha Mohan Singh
v. State of U.P.; 2006 Cri. L.J. 1121 (SC)).
S. 32 – Dying Declaration – When can be the basis of conviction –
Conviction can be based on dying declaration which was credit
worthy and reliable and it would not be interfered with.
It is seen from the doctor‟s evidence that the deceased disclosed the
history to the doctor that the accused poured kerosene on her body and
set her on fire and that the judicial Magistrate has recorded the dying
declaration of the deceased. It is also seen from the doctor‟s evidence that
before her statement was recorded by the Sub-Judicial Magistrate he had
examined her and found that she was conscious and in a position to give
the statement. Accordingly, the doctor has signed the endorsement
appearing on the dying declaration. He has also identified his signature on
the dying declaration. In cross-examination nothing contrary has been
elicited to discredit the doctor‟s evidence. (Ashok Laxamn Gaikwad v.
state of Maharashtra, 2006(3) Supreme 519 SC)
S. 35 – Entries made in school leaving certificate – Not in conformity
with terms of S.35 – Cannot be accepted as proof of age.
Section 35 of the Evidence Act would be attracted both in civil and
criminal proceedings. The Evidence Act does not make any distinction
between a civil proceeding and a criminal proceeding. Unless specifically
provided for, in terms of Section 35 of the Evidence Act, the register
maintained in ordinary course of business by a public servant in the
discharge of his official duty, or by any other person in performance of a
duty specially enjoined by the law of the country in which, inter alia, such
register is kept would be a relevant fact. Section 35, thus, requires the
following conditions to be fulfilled before a document is held to be
admissible there under: (i) it should be in the nature of the entry in any
public or official register; (ii) it must state a fact in issue or relevant fact;
(iii) entry must be made either by a public servant in the discharge of his
official duty, or by any person in performance of a duty specially enjoined
by the law of the country; and (iv) all persons concerned indisputably must
have an access thereto.
 The deposition of the Head Master of the school in this case did
not satisfy the requirements of the law laid down in the aforementioned
decisions.
Determination of the date of birth of a person before a court of law,
whether in a civil proceeding or a criminal proceeding, would depend upon
the facts and circumstances of each case. Such a date of birth has to be
determined on the basis of the materials on records. It will be a matter of
appreciation of evidence adduced by the parties. Different standards
having regard to the provision of Section 35 of the Evidence Act cannot be
applied in a civil case or a criminal case. (Ravinder Singh Gorkhi v.
State of U.P.; 2006 (4) Supreme 337)
Ss. 101, 102 & 111 – Suit for declaration that sale deed is forged
fabricated and void document – Trial court framed the issue
“whether the sale deed was forged and fabricated” – On application
of defendant the issue was recast “whether the sale deed was valid
and genuine” – High Court held that when a person was in fiduciary
relationship the burden would be on the person who was in
dominating position – This legal position and presumption would
arise when fiduciary relationship is first established by the plaintiff –
The issue as originally framed by the Trial Court putting burden on
plaintiff was right.
The burden of proving the fact rests on the party who substantially
asserts the affirmative issues and not the party who denies it. The said
rules may not be universal in its application and there may be exception
thereto. The learned trial Court and the High Court proceeded on the basis
that the defendant was in a dominating position and there had been a
fiduciary relationship between the parties. The application in his written
statement denied and disputed the said averments made in the plaint.
Pleading is not evidence, far less proof. Issues are raised on the basis of
the pleadings. The defendant-appellant having not admitted or
acknowledged the fiduciary relationship between the parties, indisputably,
the relationship between the parties itself would be an issue. The suit will
fall if both the parties do not adduce any evidence, in view of Section 102
of the Evidence Act. Thus, ordinarily, the burden of proof would be on the
party who asserts the affirmative of the issue and it rests, after evidence is
gone into, upon the party against whom, at the time the question arises,
judgment would be given, if no further evidence were to be adduced by
either side. The fact that the defendant was in a dominant position must,
thus, be proved by the plaintiff at the first instance. (Anil Rishi v.
Gurbaksh Singh 2006(4) Supreme 62)
S. 114 – Reference to persons as „mama‟ or „bhagina‟ – Not
necessarily mean that they are related by blood – Often because of
closeness of families even distant relatives are addressed as „mama‟
or „bhagina‟.
It was stated that in the said letters the appellant was described as
mama, and he referred to the sons of Nirmala Devi as bhagina (sister‟s
son). From this it was sought to be inferred that Nirmala Devi must have
been the sister of the appellant. On the basis of these letters alone we are
not prepared to draw this inference. There is evidence on record to show
that Nirmala Devi was also distantly related to the appellant. In any event,
the two families were on visiting terms and it cannot be denied that the
appellant and the respondent were known to each other. The assertion of
the appellant that he came to know Nirmala Devi only after objections
were filed in his succession case cannot be accepted. But even so, we
cannot jump to the conclusion that since he described himself as the
mama it must be held that he was the brother of Nirmala Devi, the
respondent herein. Very often because of closeness of families even
distant relatives are addressed as uncle, and sometimes-even persons
unrelated are referred to as uncle i.e. chacha or mama, etc. We expected
some more evidence to be examined to support the plea that the appellant
was the brother of the respondent. (Virendra Kumar Tripathy v. Nirmala
Devi, (2006) 3 SCC 615).
Promissory estoppel – Whether apply to State.
The doctrine of promissory estoppel operates even in the legislative
field. What is granted can be withdrawn by the Government except in the
case where the doctrine of promissory estoppel applies. (Mahabir
Vegetable Oils Pvt. Ltd. and another v. State of Haryana and others,
2006(1) Supreme 693 SC)
Will – Presumption of due execution when arises.
If a Will appears on the face of it to have been duly executed and
attested in accordance with the requirements of the statute, a presumption
of due execution and attestation applies. (Gurdev Kaur and others v.
Kaki and others, 2006(3) Supreme 631 SC)
Whether propriety of testator‟s decision can be looked into – The
Court does not sit in appeal over the right and wrong to the testator‟s
decision. It is only for the purpose of examining the authenticity or
otherwise of the instrument propounded on the last Will, that the
Court looks into the nature of the bequest.
The High Court has clearly deviated from the settled principle of
interpretation of the Will. The Court does not sit in appeal over the right or
wrong of the testator‟s decision. The Court‟s role is limited to examining
whether the instrument propounded as the last Will of the deceased is or
is not that by the testator and whether it is the product of the free and
sound disposing mind. It is only for the purpose of examining the
authenticity or otherwise of the instrument propounded as the last Will that
the Court looks into the nature of the bequest.
The learned Single Judge of the High Court has not even properly
appreciated the context of the circumstances. The contents of the Will
have to be appreciated in the context of his circumstances, and not vis-à-
vis the rules for interstate succession. It is only for this limited purpose that
the Court examines the nature of bequest. The Court does not substitute
its own opinion for what was the testator‟s Will or intentions manifested
from a reading of the written instrument. After all, a Will is meant to be an
expression of his desire and therefore, may result in disinheritance of
some and grant to another. In the instant case, wife of the testator
Bhagwan Kaur alone had lived with the deceased and only she had
looked after him throughout his life. The other daughters were all happily
married a long time ago and in their weddings the testator had spent huge
amount of money. In his own words, he had spent more than what they
would have got in their respective shares out of testator‟s property.
(Gurdev Kaur and others v. Kaki and others, 2006(3) Supreme 631
SC)

FAMILY LAW:
Family Courts Act, 1984 – S. 7 – Whether grant of injunction in proceeding
under S.125 Cr. P.C. is outside scope of matrimonial proceedings pending
before Family Court-“Yes”.
For obtaining such an injunction, two things are necessary. First,
the person-seeking injunction should have a right to that effect. In
this case, we do not see how the petitioner, merely on account of
being wife, can claim the right to restrain the husband from
selling property, which belongs to the husband. Therefore, the
injunction did not deserve to be granted on facts. Besides, this
injunction, which has been granted in proceedings under section
 125 Cr. P.C. is wholly outside the scope of those matrimonial
proceedings pending before the Family Court. Thus prima facie,
the Family Court has no jurisdiction to grant this kind of an
injunction order. (Smt. Kanchan Upadhayay V. State of U.P. & Ors.,
AIR 2006 ALL. 148)
Hindu Marriage Act – Section 13(1)(i-a) – Cruelty may be physical or

mental – Each case to be decided on its own merits.

Cruelty is a course or conduct of one, which is adversely affecting the

other. The cruelty may be mental or physical, intentional or

unintentional. The cruelty alleged may largely depend upon the type of

life the parties are accustomed to or their economic and social

conditions and their culture and human values to which they attach

importance. Each case has to be decided on its own merits.

The appellant filed a petition under Section 13(1)(i-a) of the Hindu

Marriage Act for divorce on ground of cruelty. The respondent filed a
number of cases including criminal complaints against the appellant and
made every effort to harass and torture him and even get him arrested
and put him behind the bars. Further, the respondent had sent notice for
breaking the nucleus of HUF, expressly stating that the family nucleus had
been broken with immediate effect and asking for partition of all the
properties and assets of HUF and stating that her share should be given
to her within 15 days. She had filed a complaint against the appellant
under Section 24 of the Hindu Marriage Act directing payment of
maintenance during the pendency of the case. Both the parties have
leveled allegations against each other for not maintaining the sanctity of
marriage and involvement with another person. The court held that having
regard to these and other facts and their impact the respondent treated
appellant with mental cruelty. (Naveen Kohli v. Neelu Kohli; (2006) 4
SCC 558).
NOTE:In this case the Supreme Court commended the Parliament to pass
an amendment in the Hindu Marriage Act to recognize irrevocable
breakdown of marriage as a ground for divorce.

GENERAL CLAUSES ACT:

S. 27 – Notice not claimed even though send by registered post –
Presumption of service may arise - drawer of the cheque may rebut
the presumption.
It is no doubt true that the receipt of the notice has to be proved, but as

held by this Court consistently, refusal of notice amounts to service of

notice. Similarly in a case where notice is not claimed even though

sent by registered post, with the aid of Section 27 of the General

Clauses Act, the drawer of the cheque may be called upon to rebut the

presumption which arises in favour of service of notice.

In (2004) 8 SCC 774: V. Raja Kumari v. P. Subbarama Naidu and

another, dealing with a case where the notice could not be served on
account of the fact that the door of the house of the drawer was found
locked, this Court held that the principle incorporated in Section 27 of the
General Clauses Act will apply to a notice sent by post, and it would be for
the drawer to prove that it was not really served and that he was not
responsible for such non-service. This Court reiterated the principle laid
down in K. Bhaskaran v. Sankaran Vaidhyan Balan and another case
(supra). This Court while dismissing the appeal concluded: -
“Burden is on the complainant to show that the accused has
managed to get an incorrect postal endorsement made. What is the effect
of it has to be considered during trial, as the statutory scheme
unmistakably shows the burden is on the complainant to show the service
of notice. Therefore, where material is brought to show that there was
false endorsement about the non-availability of notice, the inference that is
to be drawn has to be judged on the background facts of each case.”
In (2005) 4 SCC 417: Prem Chand Vijay Kumar v. Yashpal Singh
and another, the Court relied upon the principle laid down in (1998) 6 SCC
514: Sadanandan Bhadran v. Madhavan Sunil Kumar which was followed
in Dalmia Cement (Bharat) Ltd. v. Galaxy Traders & Agencies Ltd. and
others (supra). (D. Vinod Shivappa v. Nanda Belliappa; 2006 (4)
Supreme 540)

INDIAN EASEMENT ACT:

S. 13 & 41 – Easement of grant and easement of necessity –

Easement of grant does not get extinguish U/s. 41 of the Act.
Easement of grant is a matter of contract between the parties. In the
matter of grant the parties are governed by the terms of the grant and not
anything else. Easement of necessity and quasi easement are dealt with
in Section 13 of the Act. The grant may be express or even by necessary
implication. In either case it will not amount to an easement of necessity
under Section 13 of the Act even though it may also be an absolute
necessity for the person in whose favour the grant is made. Limit of the
easement acquired by grant is controlled only by the terms of the contract.
If the terms of the grant restrict its user subject to any condition the parties
will be governed by those conditions. Anyhow the scope of the grant could
be determined by the terms of the grant between the parties alone. When
there is nothing in the term of the grant in this case that it was to continue
only until such time as the necessity was absolute. In fact even at the time
it was granted, it was not one of necessity. If it is a permanent
arrangement uncontrolled by any condition, that permanency in user must
be recognized and the servient tenement will be recognized and the
servient tenement will be permanently burdened with that disability. Such
a right does not arise under the legal implication of Section 13 nor is it
extinguished by the statutory provision under Section 14 of the Act which
is applicable only to easement of necessity arising under Section 13.
An easement by grant does not get extinguished under Section 41 of
the Act which relates to an easement of necessity. An easement of
necessity is one, which is not merely necessary for the reasonable
enjoyment of the dominant tenement, but one where dominant tenement
cannot be used at all without the easement. The burden the servient
owner in such a case is not on the basis of any concession or grant made
by him for consideration or otherwise, but it is by way of a legal obligation
enabling the dominant owner to use his land. It is limited to the barest
necessity however inconvenient it is irrespective of the question whether a
better access could be given by the servant owner or not. When an
alternate access becomes available, the legal necessity of burdening the
servient owner ceases and the easement of necessity by implication of
law is legally withdrawn or extinguished as statutorily recognized in
Section 41. Such an easement will last only as long as the absolute
necessity exists. Such a legal extinction cannot apply to an acquisition by
grant and Section 41 is not applicable in such case. (Hero Vinoth
(Minor) v. Seshammal; 2006(4) Supreme 131)

INDIAN SUCCESSION ACT:

S. 372 & 373 – Grant of succession certificate in favour of respondent –
Evidence was not properly appreciated hence order of High Court set-
aside.
The logic of the judgment of the High Court is that these letters
proved that the appellant was the brother of Nirmala Devi. Since it is the
admitted case of the parties that the appellant is not the real brother of
Nirmala Devi, he must be her stepbrother. Since in one of the rejoinders
filed by the appellant, it was stated that Ramdaso Devi was the daughter
of one Deolal Pandey and Nirmala Devi was her daughter, the High Court
connected these two facts and came to the conclusion that Ramdaso Devi
was married to Ram Briksh Sharma. We do not subscribe to this logic
because there is no evidence to show that Ramdaso Devi was ever
married to Ram Briksh Sharma. We, therefore, come to the conclusion
that the High Court was not justified in setting aside the findings of the trial
court. These appeals must be allowed and we accordingly, allow these
appeals, set aside the impugned judgment and order of the High Court,
and restore that of the trial court. There shall be no order as to costs.
(Virendra Kumar Tripathy v. Nirmala Devi; 2006(2) AWC 1700 (SC))

STAMP ACT:
S. 47-A – Compounding of document and levy of penalty- Issued
after lapse of 4 years from date of registration of document would
contravenes provisions of S. 47-A.
As the notice itself was issued to the petitioner more than four
years, which was in clear contravention of the provisions of
Section 47-A of the Indian Stamp Act, on proceedings could have
been initiated against the petitioner in pursuance of the said
notice. As such, the orders impugned in this writ petition, which
had been passed in pursuance of the aforesaid notice, are both
 liable to be quashed. (Smt. Nisha Keserwani v. State of U.P. &
Ors., AIR 2006 All. 152)
S. 47-A (as per U.P. amendment) – Stamp duty – Deficiency – Reference
to Collector after 4 years without permission of State Government – Not
permissible.
Under Section 47A of the Stamp Act as amended by Act No. 22 of
1998 the Collector was bound to make enquiry and also to give a finding
on the market value of the property. He has merely referred to the audit
objection in his order, which is no evidence of market value and has not
applied his mind in determining market value of the property. The circle
rate fixed under the Stamp Act is prima facie evidence of market value of
the area where the property is situated. No reasons have been given in
the impugned order for holding market value above the circle rate. From
the language of the sub-section it is not possible to hold that the period of
four years qualifies the reference made by the authorities of the Stamp
Department and this question has been decided in the Full Bench decision
in Girjesh Kumar Srivastava (supra). (Rais Ahmad v. Commissioner,
Allahabad Division; 2006(2) AWC 1496)

INDIAN PENAL CODE:

S. 201 – Appellants not only assisted the main accused (who had
caused the injuries) in snatching the cot from the PWs but carried
away the cot themselves at the gun point – This shows that
appellants had knowledge of the offence and they were rightly
convicted.
The ingredients of Section 201 of the Penal Code are as under: (1)
that an offence has been committed; (2) that the accused knew or had
reason to believe the commission of such offence; (3) that with such
knowledge or belief he – (a) caused any evidence of the commission of
that offence to disappear, or (b) gave any information respecting that
offence which he then knew or believed to be false; (4) that he did as
aforesaid, with the intention of screening the offender from legal
punishment; (5) if the charge be of an aggravated form, as in the present
case, it must be proved further that the offence in respect of which the
accused did as in (3) and (4) was punishable with death, or with
imprisonment for life or imprisonment extending to ten years.
In this case the deceased had been injured. Whether he was dead
at that point of time or not is not of much importance inasmuch when the
second incident took place an offence had already been committed. The
question, however, would be as to whether the appellants before us had
the requisite knowledge of the commission of the said offence or they had
a reason to believe that an offence had been committed.
From the conspectus of events and the manner in which the
appellants are said to have taken part in the commission of crime, it is
clear that they had the requisite knowledge about the commission of an
offence. The very fact that an injured person was being carried out to the
hospital in a cot and the appellants not only assisted the main accused
persons in snatching away the cot, two of them carried the cot themselves
and two others were armed with firearms clearly establishes their
knowledge about commission or the likelihood of offence. In view of the
concurrent finding of fact by both the courts, no case has been made out
for exercising of the Supreme Court‟s jurisdiction under Article 136 of the
Constitution. (Budhan Singh v. State of Bihar; (2006) 4 SCC 740)
S. 228-A – Disclosure of identity of victim of certain offences –
Judgments of courts should not indicate the name of victim.
We do not propose to mention name of the victim. Section 228-A
IPC makes disclosure of identify of victim of certain offences punishable.
Printing or publishing name of any matter which may make known the
identity of any person against whom an offence under Sections 376, 376-
A, 376-B, 376-C or 376-D is alleged or found to have been committed can
be punished. True it is, the restriction does not relate to printing or
publication of judgment by High Court or Supreme Court. But keeping in
view the social object of preventing social victimization or ostracism of the
victim of a sexual offence for which Section 228-A has been enacted, it
would be appropriate that in the judgments, be it of this Court. High Court
or lower Court, the name of the victim should not be indicated, we have
chosen to describe her as „victim‟ in the judgment. The above position was
highlighted in State of Karnataka v. Puttaraja (2004) (1) SCC 475. (Om
Prakash v. State of Uttar Pradesh; 2006 (4) Supreme 313)
S. 299(C) and S. 300(4) – Murder and Culpable Homicide not
amounting to murder – The Difference between clause (b) of Section
299 and clause (3) of section 300 IPC is one of degree of probability
of death resulting from intended bodily injury.
Obviously, the distinction lies between a bodily injury likely to cause
death and a bodily injury sufficient in the ordinary course of nature to
cause death. The distinction is fine but real and if overlooked, may result
in miscarriage of justice. The difference between clause (b) of Section 299
and clause (3) of Section 300 is one of degree of probability of death
resulting from the intended bodily injury. To put it more broadly, it is the
degree of probability of death, which determines whether a culpable
homicide is of the gravest, medium or the lowest degree. The word “likely”
in clause (b) of Section 299 conveys the sense of probability as
distinguished from a mere possibility. The words “bodily injury … sufficient
in the ordinary course of nature to cause death” mean that death will be
the “most probable” result of the injury, having regard to the ordinary
course of nature.
Clause (c) of Section 299 and clause (4) of Section 300 both require
knowledge of the probability of the act causing death. It is not necessary
for the purpose of this case to dilate much on the distinction between
these corresponding clauses. It will be sufficient to say that clause (4) of
Section 300 would be applicable where the knowledge of the offender as
to the probability of death of a person or persons in general as
distinguished from a particular person or persons – being caused from his
imminently dangerous act, approximates to a practical certainty. Such
knowledge on the part of the offender must be of the highest degree of
probability, the act having been committed by the offender without any
excuse for incurring the risk of causing death or such injury as aforesaid.
(Raj Pal and others v. State of Haryana, 2006(3) Supreme 585 SC)
S. 300 - Essential of Exception IV.
To attract Exception 4 to Section 300 IPC it has to be established
that act was committed without premeditation in a sudden fight in heat of
passion upon a sudden quarrel without the offender having taken undue
advantage and not having acted in a cruel or unusual manner. (Ramreddy
Rajeshkhanna Reddy and another v. State of Andhra Pradesh,
2006(3) Supreme 217 SC)
S. 304-B – Suicide due to misunderstanding – The case would not
covered under this section.
It, therefore, appears that no cogent evidence had been adduced
by the prosecution to establish that the appellant had demanded any
dowry. It would bear repetition to state that according to the mother of the
deceased, PW-7 only PW-3 demanded dowry and only he was
responsible for the death of her daughter. If that be so, he should have
also been prosecuted. The trial court has not given any cogent reason for
disbelieving the evidence of PW-1; upon whom even the prosecution
placed reliance. The statement of PW-1 that the deceased was short-
tempered girl has not been discarded. The statement of PW-2 that even ½
hour before committing suicide the deceased behaved normally had also
not been taken into consideration. The prosecution did not cross-examine
PW-3, except making some suggestions; although he was declared
hostile. Even the trial court did not discard the explanation given by the
accused as regard suicide of the deceased. It proceeded on the basis that
there was no evidence either directly or indirectly as regard harassment or
cruelty committed by the appellant against his wife and there are only
circumstantial evidence therefore. The necessary ingredients of
circumstantial evidence for holding the appellant guilty of commission of
the offence had not been deliberated upon either by the trial court or by
the High court. Even an attempt had been made to show that the accused
had on an earlier occasion tried to murder the deceased but the same was
found to be false by the trial court holding that there was no evidence that
the “accused had already attempted to burn away his wife”. If there was a
case misunderstanding between accused husband and deceased wife
and deceased committed suicide same would not automatically lead to
conclusion that appellant committed offence under sec. 304-B IPC. (T.
Aruntperunjothi v. State Though S.H.O., Pondicherry, 2006(3)
Supreme 764 SC)
S. 306 & 498A – No charge U/s. 306 IPC – Still conviction U/s. 306 –
Not improper if presumption U/s.113A of Evidence Act not rebutted.
The appellants were also convicted under Section 306 IPC with the aid

of the presumption as to the abetment of suicide by a married woman

under Section 113-A of the Indian Evidence Act, 1872. It is proved by

the prosecution that Sangita committed suicide within a period of

seven years from the date of her marriage and that her husband and

his elder brother subjected her to cruelty. On the basis of the evidence,

it can be said that the cruel treatment meted out to the deceased was

of such a nature that it has driven the lady to commit suicide.

 In Ramesh Kumar v. State of Chhattisgarh (2001) 9 SCC 618
(para 22), this Court held as under:
“Sections 498-A and 306 IPC are independent and
constitute different offences. Though, depending on the
facts and circumstances of an individual case, subjecting a
woman to cruelty may amount to an offence under Section
498-A and may also, if a course of conduct amounting to
cruelty is established leaving no other option for the woman
except to commit suicide, amount to abetment to commit
suicide…”
Similarly, in Hans Raj v. State of Haryana, (2004) 12 SCC 257 (in
para 13), this Court opined that:
“…Under Section 113-A of the Indian Evidence Act, the
prosecution has first to establish that the woman concerned
committed suicide within a period of seven years from the
date of her marriage and that her husband (in this case) had
subjected her to cruelty. Even if these facts are established
the court is not bound to presume that the suicide had been
abetted by her husband. Section 113-A gives discretion to
the court to raise such a presumption, having regard to all
the other circumstances of the case, which means that
where the allegation is of cruelty it must consider the nature
of cruelty to which the woman was subjected, having regard
to the meaning of the word “cruelty” in Section 498-A IPC.
The mere fact that a woman committed suicide within seven
years of her marriage and that she had been subjected to
cruelty by her husband, does not automatically give rise to
the presumption that the suicide had been abetted by her
husband. The court is required to look into all the other
circumstances of the case. One of the circumstances which
has to be considered by the court is whether the alleged
cruelty was of such nature as was likely to drive the woman
to commit suicide or to cause grave injury or danger to life,
limb or health of the woman…”
Neither any evidence was led by the defence nor from the
evidence placed on record by the prosecution, we can draw a plausible,
reasonable and trustworthy explanation to rebut the presumption under
Section 113-A of the Evidence Act. The prosecution has sufficiently
proved by cogent evidence that the accused-appellants by series of acts
and conduct created such a difficult and hostile environment for the
deceased that she was compelled to commit suicide. In the light of the
discussion in regard to the cruelty committed by the accused persons to
the deceased under Section 498-A, IPC, there is a direct and reasonable
nexus with the commission of suicide by the deceased with the act of
cruelty to which the deceased was subjected to by the accused-
appellants. (Sahebrao & Anr. V. State of Maharashtra; 2006(4)
Supreme 419)

INTERPRETATION OF STATUTES:

Taxing Statutes should be construed strictly – However, an

exemption provision made for implementation of industrial policy of
the State should be construed liberally.
A tax is a payment for raising general revenue. It is a burden. It is
based on the principle of ability or capacity to pay. It is a manifestation of
the taxing power of the State. An exemption from payment of tax under an
enactment is an exemption from the tax liability. Therefore, every such
exemption notification has to be read strictly. However, when an assessee
is promised with a tax exemption for setting up an industry in the
backward area as a term of the industrial policy, the implementing
notifications have to be read in the context of the industrial policy. In such
a case, the exemption notifications have to be read liberally keeping in
mind the objects envisaged by the industrial policy and not in a strict
sense as in the case of exemptions from tax liability under the taxing
statute. (State of Jharkhand & Others v. Tata Cummins Ltd. &
Another; (2006) 4 SCC 57)
Rule of Purposive Construction – Court must adopt that construction
which suppressed the mischief and advanced the remedy.
It is well settled that in interpreting a statute the court must adopt
that construction which suppresses the mischief and advances the
remedy. This is a rule laid down in Heydon‟s case (76ER 637) also known
as the rule of purposive construction or mischief rule. (D. Vinod Shivappa
v. Nanda Belliappa; 2006(4) Supreme 540)

JUVENILE JUSTICE (Care & Protection Of Children) ACT:

Bihar Children Act, 1982 - Enquiry of Determination of Age - Juvenile
Justice Act imposes a duty upon competent authority to make an
enquiry as to the age of that person who appears to be a child.
The statute, therefore, has imposed a duty upon the competent
authority to make an enquiry as to the age of that person who appears to
be a child to him. No such enquiry was, however, made presumably
because no such plea was raised. At that time, it also might not have
occurred to the court that the Appellant was a child. Section 33 of the Act
lays down the circumstances, which are required to be taken into
consideration in making an order under Section 32 of the said Act. In the
year 1999, evidently the trial court did not consider the question of
estimating his age in terms of the provisions of the Act.
The provisions of a beneficial legislation should ordinarily be given
effect to. However, we may notice that the appellant is literate.
Presumably he attended some school. However, no certificate of his date
of birth or any other proof as regard his date of birth is available on
records. No other material apart from the estimate of the court has been
brought to our notice. In the absence of any material on record, we cannot
arrive at a definite conclusion that the appellant as on the date of
commission of the offence was a child within the meaning of the said Act.
We are, however, not oblivious of the decision of this Court in Bhola
Bhagat v. State of Bihar [(1997) 8 SCC 720], wherein an obligation has
been cast on the court that where such a plea is raised having regard to
the beneficial nature of the socially oriented legislation, the same should
be examined with great care. We are, however, of the opinion that the
same would not meant that a person who is not entitled to the benefit of
the said Act would be dealt with leniently only because such a plea is
raised. Each plea must be judged on its own merit. Each case has to be
considered on the basis of the materials brought on records. The
aforementioned decisions have been noticed by this Court in Zakarius
Lakra and Others v. Union of India and Another [(2005) 3 SCC 161],
wherein a Bench of this Court while entertaining an application under
Article 32 of the Constitution of India opined that although the same was
not maintainable, having regard to the decision of this Court in Rupa
Ashok Hurra v. Ashok Hurra [(2002) 4 SCC 3880], the review petition
should be allowed to be converted into a curative petition. [See also Raj
Singh v. State of Haryana – (2000) 6 SCC 759]. We, therefore, are of the
opinion that the determination of the age of the appellant as on the date of
the commission of the offence should be done afresh by the learned
Sessions Judge. For the reasons aforementioned, this appeal is allowed
and the matter is remitted to the learned Sessions Judge with a direction
to consider the matter as regard the age of the appellant as on the date of
commission of the offence and in the event, he is found to be a child
and/or juvenile within the meaning of the Act and the Juvenile Justice Act
to deal with the accused accordingly. If he is found not to have been a
child as on the date of the commission of the offence, the present
conviction will stand. (Jitendra Ram alias Jitu v. state of Jharkahnd,
2006(3) Supreme 737, SC)
Determination of age.
The age of a person as recorded in the school register or
otherwise may be used for various purposes; namely, for obtaining
admission; for obtaining an appointment; for contesting election;
registration of marriage; obtaining a separate unit under the ceiling laws;
and even for the purpose of litigating before a civil forum, e.g. necessity of
being represented in a court of law by a guardian or where a suit is filed
on the ground that the plaintiff being a minor he was not appropriately
represented therein or any transaction made on his behalf was void as he
was minor. A court of law for the purpose of determining the age of a party
to the lis, having regard to the provisions of Section 35 of the Evidence Act
will have to apply the same standard. No different standard can be applied
in case of an accused as in a case of abduction or rape, or similar offence
were the victim or the prosecutrix although might have consented with the
accused, if on the basis of the entries made in the register maintained by
the school, a judgment of conviction is recorded, the accused would be
deprived of his constitutional right under Article 21 of the Constitution, as
in that case the accused may unjustly be convicted.
Section 35 of the Evidence Act would be attracted both in civil and
criminal proceedings. The Evidence Act does not make any distinction
between a civil proceeding and a criminal proceeding. Unless specifically
provided for, in terms of Section 35 of the Evidence Act, the register
maintained in ordinary course of business by a public servant in the
discharge of his official duty, or by any other person in performance of a
duty specially enjoined by the law of the country in which, inter alia, such
register is kept would be a relevant fact. Section 35, thus, requires the
following conditions to be fulfilled before a document is held to be
admissible there under:
(i) it should be in the nature of the entry in any public or official
register; (ii) it must state a fact in issue or relevant fact; (iii) entry must be
made either by a public servant in the discharge of his official duty, or by
any person in performance of a duty specially enjoined by the law of the
country; and (iv) all persons concerned indisputably must have an access
thereto.
The school leaving certificate was no an original one. It was merely
a second copy. Although it was said to have been issued in July 1972, the
date of issuance of the said certificate has not been mentioned. The copy
was said to have been signed by the Head Master on 30.4.1998. It was
accepted before the learned Additional Sessions Judge, Bulandshahr on
27.1.1999. The Head Master has also not that the copy given by him was
a true copy of the original certificate. He did not produce the admission
register. (Ravinder Singh Gorkhi v. State of U.P.; 2006(4) Supreme
337)
Whether age in school register is conclusive – Entry in School register
regarding age of prosecutrix is not conclusive but it has evidentiary value.
A register maintained in a school is admissible in evidence to prove
date of birth of the person concerned in terms of Section 35 of the Indian
Evidence Act. Such dates of birth are recorded in the school register by
the authorities in discharge of their public duty. PW-5, who was an
Assistant Teacher in the said school in the year 1977, categorically stated
that the mother of the prosecutrix disclosed her date of birth. Father of the
prosecutrix also deposed to the said effect. The prosecutrix took
admission in the year 1977. She was, therefore, about 6-7 years old at
that time. She was admitted in Class I. Even by the village standard, she
took admission in the school a bit late. She was married in the year 1985
when she was evidently a minor. She stayed in her in-laws place for some
time and after the „gauna‟ ceremony, she came back. The materials on
record as regard the age of the prosecutrix was, therefore, required to be
considered on the aforementioned backdrop. It may be true that an entry
in the school register is not conclusive but it has evidentiary value. Such
evidentiary value of a school register is corroborated by oral evidence as
the same was recorded on the basis of the statement of the mother of the
prosecutrix. Only because PW-3 the father of the prosecutrix could not
state about the date of birth of his other children, the same, by itself, would
not mean that he had been deposing falsely. We have noticed
hereinbefore, that he, in answer to the queries made by the counsel for
the parties, categorically stated about the year in which his other children
were born. His statement in this behalf appears to be consistent and if the
said statements were corroborative of the entries made in the register in
the school, there was no reason as to why the High Court should have
disbelieved the same. We, therefore, are of the opinion that the High Court
committed a serious error in passing the impugned judgment. It cannot,
therefore, be sustained. It is set aside accordingly. (State of Chhatisgarh
v. Lekhram; 2006(3) Supreme 288)

LABOUR LAWS:
Industrial Disputes Act - S. 2-A – Back wages on reinstatement –
Reinstatement in service and payment of back wages are two
different things and payment of back wages is not a natural
consequence of setting aside the order of dismissal.
In several cases, this Court has held that payment of back wages
is a discretionary power which has to be exercised keeping in view the
facts and circumstances of each case and neither straight jacket formula
can be evolved, nor a rule of universal application can be adopted [vide
P.G.I. of Medical Education & Research, Chandigarh v. Raj Kumar, (2001)
2 SCC 54; Hindustran Motors v. Tapan Kumar Bhattacharya, (2002) 6
SCC 41]. In Kendriya Vidyalaya Sangathan v. S.C. Sharma, (2005) 2 SCC
363, this Court held that when question of determination of entitlement of
back wages comes up for consideration, prima facie, it is for the employee
to prove that he had not been gainfully employed. Initial burden is on the
employee to show that he remained without any employment. In several
cases, similar view has been taken by this Court in recent years. In M.P.
State Electricity Board v. Jarina Bee, (2003) 6 SCC 141, it was observed
that reinstatement in service and payment of back wages are two different
things and payment of back wages is not a natural consequence of setting
aside an order of dismissal. In Allahabad Jal Sansthan v. Daya Shanker
Rai, (2005) 5 SCC 124, it was indicated that the law is not in absolute
terms that in all cases of illegal termination of services, a workman must
be paid full back wages. In Haryana State Coop. Land Development Bank
v. Neelam, (2005) 5 SCC 91, it was stated that the aim and object of
Industrial Disputes Act is to impart social justice to the workman but
keeping in view his conduct. Payment of back wages, therefore, would not
be automatic on entitlement of the relief of reinstatement. In General
Manager, Haryana Roadways v. Rudhan Singh, (2005) 5 SCC 591, the
Court reiterated that there is no rule of thumb that in each and every case,
where the Industrial Tribunal records a finding that the order of termination
of service was illegal that an employee is entitled to full back wages. A
host of factors which are relevant, must be taken into account.
 No precise formula can be adopted nor „cast iron rule‟ can be laid
down as to when payment of full back wages should be allowed by the
court or Tribunal. It depends upon the facts and circumstances of each
case. The approach of the Court/Tribunal should not be rigid or
mechanical but flexible and realistic. The Court or Tribunal dealing with
cases of industrial disputes may find force in the contention of the
employee as to illegal termination of his services and may come to the
conclusion that the action has been taken otherwise than in accordance
with law. In such cases obviously, the workman would be entitled to
reinstatement but the question regarding payment of back wages would
be independent of the first question as to entitlement of reinstatement in
service. While considering and determining the second question, the Court
or Tribunal would consider all relevant circumstances referred to above
and keeping in view the principles of justice, equity and good conscience,
should pass an appropriate order. (UPSRTC Ltd. v. Sarada Prasad
Misra and another, 2006(3) Supreme 662 SC)
Payment of Wages Act, 1936 - Section 2(6) – Wages – Definition of.
The word “Wages” not only includes basic wages, but the entire
package and other components of the wage were also included the word
“wages” as defined Section 2 (6) of the Payment of Wages Act. (General
Electric Co. of India Ltd v. Addl. Dist. Judge-V, Allahabad & ors, 2006
(2) ALJ 378)
Payment of Wages Act – S. 15 – Claim for “potential wages” – Is not
within scope of jurisdiction of authority under S. 15 of Act.
In the present case, no illegal deductions have been made from the
wages of the respondent workmen. They were in fact claiming “potential
wages”, which is clearly not within the scope of the jurisdiction of the
authority under Section 15 of the Act as has been laid down by the
Hon‟ble Supreme Court in the case of A.V. D‟Costa (Supra). (M/s.
Rampur Distillery Ltd. v. Dy. Labour Commissioner, Varanasi & Ors.
2006(2) ALJ 750)
Payment of Wages Act - S. 17 – Limitation Act S, 5 – Appeal – Whether

Payment of Wages Act excludes applicability of S. 5 of Limitation Act -

“No”
 There is no specific exclusion as to applicability of S. 5 of the

Limitation Act by virtue of Payment of Wages Act, 1936, being a

special law. The Payment of Wages Act is not complete Code in

itself. S.5 of the Limitation Act can be called in aid to apply to the

proceedings under S. 17 of the Payment of Wages Act by virtue of S.

29 of Limitation Act. Thus, delay in filing appeal under S. 17 of the

Payment of Wages Act can be condoned by applying S.5 of

Limitation Act. (Hafizuddin V. Addl. District Judge & Anr., 2006 (2) ALJ

481).

LAND ACQUISITION AND REQUISITION:

Section 28-A – Redetermination of compensation – Those who secure
benefit by reason of others getting such benefits not to be allowed to
retain the same when the other‟s benefits reduced –- Amount payable
under Sec. 28-A of Land Acquisition Act is the amount which is finally
payable by way of compensation to owners who challenged the award had
claimed reference under S. 18 of the Act.
Section 28-A seeks to confer the benefit of enhanced compensation
even on those owners who did not seek a reference under Section 18. It
cannot be that those who secure a certain benefit by reason of others
getting such benefit should retain that benefit, even though the others on
the basis of whose claim compensation was enhanced are deprived of the
enhanced compensation to an extent. This would be rather inequitable
and unfair. Moreover, even if it be that the compensation payable to
claimants who have applied under Section 28-A of the Act, is the
enhanced compensation decreed by the Reference Court, the decree
must be understood to mean the decree of the Reference Court as
modified in appeal by the higher courts. Otherwise, an incongruous
position may emerge that a person who did not challenge the award of the
Collector and did not claim a reference under Section 18 of the Act would
get a higher compensation than one who challenged the award of the
Collector and claimed a reference, but in whose case a higher
compensation determined by the Reference Court was subsequently
reduced by the superior court. Those claiming higher compensation and
claiming reference under Section 18 of the Act are bound by the decree as
modified by the superior court in appeal. The principle of restitution must
apply to them. For the same reason, the same consequence must visit
others who have been given the benefit of enhanced compensation
pursuant to the decree passed in reference proceeding on the application
of others. It must therefore, be held that under Section 28-A of the Act, the
compensation payable to the applicants is the same which is finally
payable to those claimants who sought reference under Section 18 of the
Act. In case of reduction of compensation by the superior courts, the
applicants under Section 28-A may be directed to refund the excess
amount received by them in the light of reduced compensation finally
awarded. (Union of India v. Munshi Ram (Dead) by Lrs. And others,
2006(3) Supreme 6 SC)
S. 28 – A – Whether application for re-determination of compensation by

the petitioner/ land owner- Who failed to make reference under S. 18 can

entitle to rely upon award passed by reference Court U/S. 28-A of the Act.

The petitioner is entitled to rely on a award passed by the

reference Court under Section 28-A (3) of the Act in reference no. 133

of 1992 (Jhillu Vs. Collector and others) for maintaining his

application under Section 28-A of the Act. Therefore, the impugned

order dated 11-9-2001 is apparently illegal and liable to be quashed.

(Babu Nandan V. State of U.P. & Ors. 2006 (2) ALJ 778)

LIMITATION ACT:
S. 18 – Redemption suit – Acknowledgement may be direct or
implied – An intention to admit jural relationship, over and above a
mere reference to it must be there to amount “acknowledgement”
within the meaning of S.18.
In a mortgage, both the mortgagor and the mortgagee have certain
rights and obligations against each other. The rights/obligations of a
mortgagor or a mortgagee coexist, like the two sides of a coin. The
mortgagor‟s right of redemption is coextensive with the mortgagee‟s right
of sale or foreclosure (where such right is recognized in law). Any
statement by either, admitting the jural relationship with the other, will
extend the limitation for a suit by that other, against the person
acknowledging. It follows that when a mortgagee makes a statement
about his right to recover the mortgage amount, such statement impliedly
acknowledges the corresponding right of redemption of the mortgagor.
Further, a statement admitting jural relationship need not refer to or
reiterate the rights and obligations flowing there from. Where a party to the
mortgage, by his statement, admits the existence of the mortgage or his
rights under the mortgage, he admits all legal incidents of the mortgage
including rights and obligations of both parties that is mortgagee and
mortgagor.
It would be erroneous to proceed on the assumption that an
acknowledgment that would fall within the ambit of Section 18 can be
made only by a “debtor” and there is no question of a “creditor” making an
acknowledgment. This would also be to ignore the purport and scope of
Section 18. Section 18 of the Act deals not only with acknowledgment of
debts, but acknowledgments with reference to all suits involving properties
or rights for which limitation is prescribed under the Act. It sets out the
circumstances in which a fresh period of limitation can be computed for a
suit. If the suit is one for recovery of the amount due under an on-demand
promissory note, no doubt, only an acknowledgment by the debtor can
extend the period of limitation. But in regard to mortgages, the Transfer of
Property Act has created and recognized rights as well as obligations both
in the mortgagor and the mortgagee. An acknowledgment under Section
18 can be by a mortgagee also, and such acknowledgment will extend the
limitation for a suit against the mortgagee in respect of the property or
right claimed against him. (Prabhakaran v. M. Azhagiri Pillai; (2006) 4
SCC 4834)
Article 65 (b) – Limitation starts from the date of death of the female
in suit for possession of immovable property – From the date of
death of the female - The possession of the defendant would become
adverse to the plaintiff only from that date.
 The High Court was right in holding that the suit was barred by
limitation. The limitation period prescribed under Article 65 is 12 years
beginning from the date when the possession of the defendant becomes
adverse to the plaintiff. Article 65 itself provides that the possession of the
defendant shall be deemed to become adverse only when the female dies.
Thus, there is no scope for the argument that limitation does not run from
the date on which the Hindu female died and that it would start running
from some other date. It is, therefore, not possible to sustain the
contention that the suit had to be filed within 12 years from the date on
which the possession of the defendant became adverse and, therefore, it
was immaterial as to when the Hindu female died. The suit should have
been filed by the plaintiff within 12 years of the death of the Hindu female,
namely, K and the same having not been filed within 12 years was barred
by limitation. (Jagat Ram v. Varinder Prakash; (2006) 4 SCC 482)

MOTOR VEHICLES ACT & MOTOR ACCIDENTS:

Section 147 - Statutory policy - Gratuitous passengers - A statutory
policy would not cover the risk of a gratuitous passenger.
In our view, although the observations made in Asha Rani case
(2003) 2 SCC 223: 2003 SCC (Cri) 493) were in connection with carrying
passengers in a goods vehicle, the same would apply with equal force to
gratuitous passengers in any other vehicle also. Thus, we must uphold the
contention of the appellant Insurance Company that it owed no liability
towards the injuries suffered by the deceased Rajinder Singh who was a
pillion rider, as the insurance policy was a statutory policy, and hence it
did not cover the risk of death of or bodily injury to a gratuitous passenger.
(United India Insurance Co. Ltd., Shimla v. Tilak Singh and others,
2006(3) Supreme 332 SC: (2006) 4 SCC 404)
S. 149 – Liability of insurance company – Company would be liable
to pay compensation in case driver has not valid driving license
instead of owner.
Since the vehicle was insured with the appellant and insurance
policy was valid on the relevant date and the appellant – Insurance
Company failed to discharge its burden that the driver was not having any
valid driving licence on the date of accident, the liability to pay the
compensation will be on the Insurance Company and not on the owner of
the vehicle. (National Insurance Co. Ltd., Lucknow v. Smt. Mayawati
and Ors., 2006(2) ALJ 799)
Ss. 149(2)(a)(ii), 147 – Driver holding learner‟s licence – Insurance
company can‟t avoid liability U/s. 147.
We find that the High Court relied on a decision of this Court in New India
Assurance Co. Ltd. v. Mandar Madhav Tambe [(1996) 2 SCC 328: 1996
SCC (Cri) 307: 1996 ACJ 253]. The issue related to the liability of an
insurer when the offending vehicle is driven by a person holding a
learner‟s licence. The High Court held that in view of the decision in
Madhav Tambe case the Insurance Company has no liability, though the
Motor Accidents Claims Tribunal, herein referred to as “the Tribunal” had
fixed the liability on the Insurance Company. Correctness of the decision
in Madhav Tambe case came to be considered in National Insurance Co.
Ltd. v. Swaran Singh [(2004) 3 SCC 297: 2004 SCC (Cri) 733]. It was held
that Madhav Tambe case was decided on the peculiar facts of the case
without taking note of the binding precedents. It was categorically held that
even when the offending vehicle was driven by a person holding a
learner‟s licence, the insurer‟s liability existed. This position has been
clarified in paras 93 and 94 of the judgment. (Mahamooda v. United
India Insurance Co. Ltd., (2006) 1 SCC (Cri) 519).
Ss. 149(2), 147, 3, 163-A, 166 and 170 – No appropriate driving
licence with the driver to drive commercial vehicle – Insurer could
rightly deny liability.
The vehicle was being used as a taxi. It was, therefore, a
commercial vehicle. The driver of the said vehicle, thus, was required to
hold an appropriate licence therefore. R, who was driving the said vehicle
at the relevant time, did not possess any licence to drive a commercial
vehicle. Evidently, therefore, there was a breach of the condition of the
contract of insurance. The appellant, therefore, could raise the said
defence.
In a proceeding arising out of a claim petition filed under Section
166 of the Motor Vehicles Act, the Insurance Company is a necessary
party, as it is required to indemnify the owner or driver of the vehicle. In
the circumstances mentioned in Section 170 of the Act, the Insurance
Company can contest the matter on merits of the claim petition upon
obtaining leave of the court. However, there does not exist any embargo in
raising a defence which comes within the purview of Section 149(2) of the
Act. (National Insurance Co. Ltd. v. Kusum Rai; (2006) 4 SCC 250)
Section 157 – Transfer of vehicle – Effect on rights and obligations of
third party and Insurance Company on transfer of vehicle – Liability
of Insurer does not cease as far as third party is concerned.
Undoubtedly, under Section 103-A of the 1939 Act, if there was in
existence an insurance policy covering the vehicle and the vehicle was
transferred, then there was no automatic transfer of policy of insurance but
it was open to the transferor to apply in the prescribed form to the insurer
for transfer of certificate of insurance before the transfer and, if within 15
days of receipt of such application by the insurer such application had not
been refused, the certificate of insurance and the insurance policy, were
deemed to have been transferred in favour of the transferee. The 1988
Act, however, brought about a drastic change in the situation. Section 157
of the 1988 Act, which corresponds to the earlier Section 103-A of the
1939 Act, provides that upon the transfer of ownership of the motor
vehicle in respect of which such insurance was taken together with the
policy of insurance relating thereto, the certificate of insurance and the
policy described in the certificate “shall be deemed to have been
transferred in favour of the person to whom the motor vehicle is
transferred with effect from the date of its transfer”. The explanation to the
section makes it clear that such deemed transfer shall include transfer of
rights and liabilities of the said certificate of insurance and policy of
insurance.
Section 6(c) of the General Clauses Act would hardly have any
application to a cause of action in favour of a person who was neither a
transferor, nor the transferee of the insured vehicle. At the most, the
failure to give an intimation under Section 103-A of the 1939 Act would
create a liability on the part of the transferor vis-à-vis the Insurance
Company, but would hardly affect a third party‟s claim for compensation.
The liability of an insurer under Section 103-A of the 1939 Act did
not cease even if the owner or purchaser fails to give intimation of transfer
to the Insurance Company, as the purpose of the legislation was to protect
the rights and interests of the third party. Thus the situation in law which
arises from the failure of the transferor to notify the insurer of the fact of
transfer of ownership of the insured vehicle is no different, whether under
Section 103-A of the 1939 Act or under Section 157 of the 1988 Act
insofar as the liability towards a third party is concerned. Thus, whether
the old Act applies to the facts of the present case or the new Act applies,
as far as the deceased third party was concerned, the result would not be
different. (United India Insurance Co. Ltd., Shimla v. Tilak Singh and
others, 2006(3) Supreme 332 SC: (2006) 4 SCC 404)
S. 168 – Coolie doing manual labour lost one arm in accident –
Factors to be considered for awarding compensation– Eighty
percent disability assessed.
After hearing learned counsel for the parties, we find that the High
Court committed a gross error in ignoring the fact that the claimant was a
coolie doing manual labour for earning his livelihood. As a result of the
accident his one arm was amputated which was almost total disability for
earning. In such a situation, to reduce the quantum of compensation by
treating disability at 50% was uncalled for. The Tribunal has in fact
assessed the disability at 80%. (Shankarappa Kubbanna Kattimani v.
Karnataka State Road Transport Corporation, (2006) 1 SCC (Cri) 548).

MUNICIPALITIES:

U.P. Nagar Mahapalika Adhiniyam, 1959 – Ss. 106, 107 & 111 -

Appointment made in violation of law – Such appointments would be void.

Appointments made by Authority in violation of the Act and rules

governing such appointment is void though same would not mean that
provisions of Industrial Disputes Act were not required to be taken into
consideration for determination of question whether termination of
workman from service was legal or not but same should have to be
considered to be an important factor in matter of grant of relief. (Nagar
Mahapalika (Now Municipal Corpn.) 2006 (3) Supreme 772 SC)

NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES

ACT:
S. 50 – Applies only to personal search – Not applicable in cases of
search of a bag, article or container, which the accused was
carrying.
The question as regards applicability of section 50 of the Act need
not detain us for long. We may notice that in view of conflict in the
opinions of different Benches as also difference of opinion between two
Judges of this Court in State of Himachal Pradesh v. Pawan Kumar (2004
(24) AIC 483 (SC)=2004 (50) ACC 900), the question was referred to a
larger Bench. A three-Judge Bench of this Court in State of Himachal
Pradesh etc. v. Pawan Kumar (2005 (30) AIC 497 (SC)=2005 (52) ACC
710), relying on or on the basis of a large number of decisions and in
particular the decision of the Constitution Bench of this Court in State of
Punjab v. Baldev Singh (1999 (39) ACC 349 (SC)), clearly held that
section 50 of the Act would be applicable only in a case of personal
search of the accused and not when it is made in respect of some
baggage like a bag, article or container etc. which the accused at the
relevant time was carrying. (State of Haryana v. Ranbir alias Rana;
[2006 (55) ACC 522 (SC)]

NEGOTIABLE INSTRUMENTS ACT:

S. 138 & 142(b) – Amount due under the cheque payable at
Ernakulam – Head office of the accused company also at Ernakulam
– Does not mean that a part of cause of action arose at Ernakulam.
For the purpose of proving the ingredients of the offence under
Section 138 of the NI Act, the complainant appellant was required to prove
the facts constituting the cause of action therefore none of which arose
within the jurisdiction of the Kerala High Court. Cause of action within the
meaning of Section 142(b) of the Act can arise only once. Cause of action
within the meaning of clause (2) of Article 226 shall have the same
meaning as is ordinarily understood. The expression “cause of action” has
a definite connotation. It means a bundle of facts, which would be required
to be proved. Sending of cheques from Ernakulam or the respondents
having an office at that place did not form an integral part of “cause of
action” for which the complaint petition was filed by the appellant and
cognizance of the offence under Section 138 of the Negotiable
Instruments Act, 1881 was taken by the Chief Judicial Magistrate, Suri in
West Bengal. (Mosaraf Hossain Khan v. Bhagheeratha Engg. Ltd.,
(2006) 3 SCC 658).
S. 138(b) - Service of demand notice – Demand notice was returned
with endorsement “addressee always absent during delivery time
hence returned” – If complainant is able to prove that drawer of
cheque knew about the notice and deliberately evaded service -
court can presume service.
We cannot also lose sight of the fact that the drawer may by dubious
means manage to get an incorrect endorsement made on the envelope
that the parties (premises?) has been found locked or that the addressee
was not available at the time when postman went for delivery of the letter.
It may be that the address is correct and even the addressee is available
but a wrong endorsement is manipulated by the addressee. In such a
case, if the facts are proved, it may amount to refusal of the notice. If the
complainant is able to prove that the drawer of the cheque knew about the
notice and deliberately evaded service and got a false endorsement made
only to defeat the process of law, the Court shall presume service of
notice. This, however, is a matter of evidence and proof. Thus even in a
case where the notice is returned with the endorsement that the premises
has always been found locked or the addressee was not available at the
time of postal delivery, it will be open to the complainant to prove at the
trial by evidence that the endorsement is not correct and that the
addressee, namely the drawer of the cheque, with knowledge of the notice
had deliberately avoided to receive notice.
The question is whether in a case of this nature, where the postal
endorsement shows that the notice could not be served on account of the
non availability of the addressee, a cause of action may still arise for
prosecution of the drawer of the cheque on the basis of deemed service of
notice under clause (c) of proviso to Section 138 of the Act. In our view
this question has to be answered by reference to the facts of each case
and no rule of universal application can be laid down that in all cases
where notice is not served on account of non-availability of the addressee,
the court must presume service of notice.
The proviso is meant to protect honest drawers whose cheques may
have been dishonoured for the fault of others, or who may have genuinely
wanted to fulfill their promise but on account of inadvertence or negligence
failed to make necessary arrangements for the payment of the cheque.
The proviso is not meant to protect unscrupulous drawers who never
intended to honour the cheques issued by them, it being a part of their
modus operandi to cheat unsuspecting persons. (D. Vinod Shivappa v.
Nanda Belliappa; 2006(4) Supreme 540)

PANCHAYATS AND ZILA PARISHADS:

U.P. Panchayat Raj Act – Ss. 27, 95(1)(g) – Surcharge
– Whether liability of Pradhan to surcharge u/s 27 and
S. 19(1)(g) is same - No.
The prima facie finding of the competent authority under Section
95(1)(g) proviso is not same as finding of misconduct as contemplated
under Section 27 of the Act. We are satisfied that on the basis of mere
prima facie finding of guilt, the order of surcharge could not have been
passed under Section 27 of the Act. (Indu Devi v. District Magistrate,
Chitrakoot & Ors. 2006(2) ALJ 747)

PRECEDENTS:
Obiter dicta and Ratio Decidendi – Statements which are not part of ratio
decidendi constitute obiter dicta and are not authoritative.
It is in that context the court clearly came to the opinion that the
provisions of sub-section (1) of Section 50 was not required to be
complied with. The said conclusion was arrived at, inter alia, upon noticing
the provision of sub-section (4) of Section 50 of the Act. It was, therefore,
not necessary for the Bench, with utmost respect, to make any further
observation. It was not warranted in the fact of the said case. A decision, it
is well settled, is an authority for what it decides and not what can logically
be deduced therefrom. The distinction between a dicta and obiter is well
known. Obiter dicta is more or less presumably unnecessary to the
decision. It may be an expression of a viewpoint or sentiments which has
no binding effect. See Additional District Magistrate, Jabalpur etc. v.
Shivakant Shukla etc. (1976) 2 SCC 521). It is also well settled that the
statements which are not part of the ratio decidendi constitute obiter dicta
and are not authoritative. [See Division Controller, KSRTC v. Mahadeva
Shetty and Another [(2003) 7 SCC 197].
In Director of Settlements, A.P. and Others v. M.R. Apparao and
Another [(2002) 4 SCC 638], it was held:
“…An obiter dictum as distinguished from ratio decidendi is
an observation of the court on a legal question suggested in a
case before it but not arising in such manner as to require a
decision. Such a obiter may not have binding precedent but it
cannot be denied that it is of considerable weight…”
We may usefully refer to an observation of Delvin J. Made in
Behrens v. Pertraman Mills (1957) 2 QB 25], which is in the following
terms:
“…if the Judge gives two reasons for his decisions, both are
binding. It is not permissible to pick out one as being
supposedly the better reason and ignore the other one; nor
does it matter for this purpose which comes first and which
 comes second. But the practice of making judicial observation
obiter is also well established. A judge may often given
additional reasons for his decision without wishing to make
them part of the ratio decidendi; he may not be sufficiently
convinced of their cogency as to want them to have the full
authority of the precedent, and yet may wish to state them so
that those who later may have the duty of investigating the
same point will start with some guidance. This is the matter
which judge himself is alone capable of deciding, and any
judge who comes after him must ascertain which course he
has adopted fro the language used and not by consulting his
own preference.” (State of Haryana v. Ranbir @ Rana;
2006(3) 358)

PREVENTION OF FOOD ADULTERATION ACT:

S. 11 – Does not require associating any other person as witness –

Corroboration of main witness is a rule of prudence and not of law.
Section 11 of the Act prescribes the procedure to be followed by the
Food Inspector for taking the sample of food for analysis. The Food
Inspector is required to:
“11.(1)(a) give notice in writing then and there of his intention
to have it so analysed to the person from whom he has
taken the sample and to the person, if any, whose name,
address and other particulars have been disclosed under
Section 14-A;
(b) except in special cases provided by rules under this Act,
divide the sample then and there into three parts and mark
and seal or fasten up each part in such a manner as its
nature permits and take the signature or thumb impression
of the person from whom the sample has been taken in such
place and in such manner as may be prescribed:
Provided that where such person refuses to sign or put
his thumb impression the food inspector shall call upon one
or more witnesses and take his or their signatures or thumb
impressions, as the case may be, in lieu of the signature or
thumb impression of such person;
 (c)(i) send one of the parts for analysis to the Public Analyst
under intimation to the Local (Health) Authority; and
(ii) send the remaining two parts to the Local (Health)
Authority for the purposes of sub-section (2) of this section
and sub-section (2-A) and (2-E) of Section 13.”
There is no denial of the fact that the appellant in this case had
followed the procedure prescribed under the aforesaid section. The
section does not provide for associating any other person as a witness for
taking a sample of food for analysis. (Food Inspector v. G.
Satyanarayana; (2006) 1 SCC (Cri) 280)
S. 13 – Report of Public Analyst is rebuttable and accused can prove it
incorrect by sending the sample to CFL.
The courts below committed a mistake of law by acquitting the
respondent on the ground that the statement of PW1 had not been
corroborated by other independent witnesses. Corroboration of the
statement of main witness is not the requirement of law but is only a rule
of prudence.
It need not be direct and may be ascertained from the circumstances
of a particular case. Under law uncorroborated testimony of a witness is
admissible under Section 133 of the Evidence Act. While looking for
corroboration, the court has to keep in mind the broad spectrum of the
prosecution case and then to see whether there is evidence to led
assurance to that version. The nature and extent of corroboration depends
upon the facts of each case. (Food Inspector v. G. Satyanarayana;
(2006) 1 SCC (Cri) 280)

PROVINCIAL SMALL CAUSES COURTS ACT:

S. 17 & 25 – Ex-parte decree for eviction and recovery of arrears of

rent – Restoration application – Total decreetal amount being Rs.
164.90 – Tenant depositing Rs. 210 with restoration application –
Section 17 fully complied with.
Against order dated 2.8.1983 landlord-respondent filed Civil
Revision No. 171 of 1983. IIIrd A.D.J., Mathura, allowed the revision on
5.10.1985 and rejected the restoration application hence this writ petition.
Revisional court held that tenant had not deposited the mesne profit which
were also decreed hence he had not made full compliance of Section 17,
P.S.C.C. act. In this regard the finding of the revisional court is clearly
erroneous in law. Along with counter-affidavit copy of decree has been
filed as Annexure- CA 3. In the first part of the said copy the amount
claimed in the suit is shown as Rs. 208. In the second part of the copy of
decree the decreetal amount is shown as Rs. 64 and costs decreed are
shown as Rs. 32.90. The total amount comes to Rs. 96.90 while tenant
had deposited Rs. 210. In the ex parte judgment copy of which is
Annexure –2 to the writ petition it is mentioned that rate of rent is Rs. 12
per month and tenant has not paid the rent since 12.10.1981. Suit was
decreed ex parte on 6.9.1982. From 12.10.1981 till 6.9.1982 the total
rent/damages for use and occupation come to Rs. 132(12x11). Date of
filing of the suit is not mentioned anywhere in the writ petition or in the
annexures. It appears that when suit was filed total rent due was Rs. 64
hence that was shown in the decree. Adding the rent due till the date of
filing of suit and the damages, which accrued since, then till passing of the
ex-parte decree dated 6.9.1982, the total amount comes to Rs. 132. After
adding the cost awarded by the decree, i.e. Rs. 32.90 the total amount
comes to Rs. 164.90. Tenant deposited Rs. 210 along with his restoration
application which was much more than the decreetal amount. The tenant
had therefore fully complied with the provision of Section 17, P.S.C.C. Act.
The contrary view of the revisional court in this regard is clearly erroneous.
(Prem Raman Goswami v. 3rd A.D.J., Mathura and another; 2006(2)
AWC 1092)

RENT CONTROL & EVICTION:

U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act,
1972 – S. 20(2)(c) – Suit for eviction-Construction of wall in Court
yard divide into two-does not amount to material alteration.
Constructing wall in court yard of house in dispute which has effect
of dividing court yard into two portions cannot be said to be such structural
alteration which is covered by S. 20 (2) (C). Hence suit cannot be decreed
on ground of material alteration. (Hari Singh v. 6th Addl. District Judge,
Muzaffarnagar & Ors, 2006 (2) ALJ 390.)
U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act,
1972 – S. 21(1)(a) – Application for release of premises-Purchase of
another shop would amount to subsequent development.
As during pendency of the petition landlord has acquired another
shop in which he has started business, hence his need stands satisfied.
This is such an important subsequent event that it cannot be ignored and
it will have to be taken in consideration. Hence release application liable to
be dismissed. (Babu Lal and Brothers & Anr. V. IV th Addl. Dist.
Judge, Saharanpur & Ors, 2006(2) ALJ 385)
U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972

– S. 21(1)(a) – Release of premises – Bonafide need – Whether the need

of the landlord/petitioner no. 1 is bonafide and genuine to release

premises in favor his nominee-“No”.

So far as the findings on the bonafide need of the petitioner

no.1 is concerned, the premises is in occupation of the petitioner no.

2 and therefore, there is no occasion to treat the requirement of the

petitioner no. 1 as bonafide. The respondent no. 3 has also admitted

this fact that the petitioner no. 2 is in occupation of the premises in

dispute being the nominee for allotment of the premises in dispute.

So far as bonafide need of the landlord/petitioner no. 1 is concerned,

two courts below have recorded a finding against the petitioner no. 1

by holding that the need of the petitioner no.1 is not bonafide.

(Basant Lal Sah & Anr V. Addl. Dist. Magistrate. Nainital & Ors., 2006 (2)

ALJ 589)

Waiver of notice to quit – Section 113 T.P. Act – Waiver can be

inferred when there is some act on the part of landlord, which
evinces an intention to treat the lease as subsisting.
In the instant case two notices to quit were given on 10.2.1979 and
17.3.1979. The suit was filed on 2.6.1979. The tenant offered and the
landlord accepted the rent for the months of April, May and thereafter.
Mere acceptance of rent did not by itself constitute an act of the nature
envisaged by Section 113, TPA showing an intention to treat the lease as
subsisting. The fact remains that even after accepting the rent tendered,
the landlord did file a suit for eviction, and even while prosecuting the suit
accepted the rent, which was being paid to him by the tenant. It cannot,
therefore, be said that by accepting rent be intended to waive the notice to
quit and to treat the lease as subsisting.
A mere perusal of Section 113, TPA, 1882 leaves no room for
doubt that in a given case, a notice given under Section 111 clause (h),
may be treated as having been waived, but the necessary condition is that
there must be some act on the part of the person giving the notice
evincing an intention to treat the lease as subsisting. Of course, the
express or implied consent of the person to whom such notice is given
must also be established. The question as to whether the person giving
the notice has by his act shown an intention to treat the lease, as
subsisting is essentially a question of fact. In reaching a conclusion on this
aspect of the matter, the court must consider all relevant facts and
circumstances, and the mere fact that rent has been tendered and
accepted, cannot be determinative. (Sarup Singh Gupta v. S. Jagdish
Singh & Others; (2006) 4 SCC 205)
Effect of acceptance of rent after notice to quit.
Mere acceptance of rent cannot amount to waiver of notice to quit
unless there be any other evidence to prove or establish that landlord so
intended. (Sarup Singh Gupta v. s. Jagdish Singh and others,
Ramreddy; 2006(3) Supreme 206 SC)

SERVICE LAW:
Departmental Enquiry – Second show cause notice by disciplinary
authority – Not illegal -Permissible to correct mistake as regards
punishment to be imposed.
The enquiry officer recommended certain punishments including
that of a permanent withholding of two increments. On the basis of the
said recommendations, the Managing Director of the appellant Company
on 27.1.1994 issued a show-cause notice to the first respondent workman
as to why two increments of pay from his salary should not be directed to
be withheld permanently. The first respondent filed his show-cause
thereto. However, another show-cause notice in supersession of the
earlier notice was issued on 21.3.1994 by the Managing Director on the
ground that the charges which were proved against the first respondent
being serious in nature and having regard to the gravity thereof, why the
punishment of dismissal, inter alia, should not be imposed.
The disciplinary authority might have committed a mistake in
issuing the first show-cause notice but by reason thereof he cannot be
held to be wholly precluded from issuing a second show-cause notice as
thereby he intended to rectify the mistake committed by him. Mistake
furthermore, may either be of law or fact. By reason of mistake on the part
of the enquiry officer, the respondent could not have been inflicted with a
minor penalty although he deserved a major penalty.
As the enquiry officer had no jurisdiction to recommend any
punishment to be imposed on the respondent by the disciplinary authority,
the disciplinary authority although acted thereupon at the first instance,
could have corrected his mistake, as the same was apparent on the face
of the record. He, therefore, did not commit any illegality in issuing the
second show-cause notice. (Maharashtra State Seeds Corpn. Ltd. v.
Hariprasad Drupadrao Jadhao, (2006) 3 SCC 690).
Departmental Enquiry – Appreciation of Evidence- Bar against
admissibility of confession made to a Police Officer or in police
custody does not apply to departmental enquiry.
The respondent was a Constable in the Delhi Police. Pursuant to
an FIR lodged against him under Sections 308/34 of the Penal Code, he
was arrested. Subsequently, certain firearms from the armoury were found
with certain persons accused therefore. The said persons made
confessions stating that the respondent had committed theft of the said
arms. The respondent was arrested on the basis of that confessional
statement. While in police custody he also made a confession as regards
his involvement in the said offence. He also led the investigating team to
the room of the armoury and pointed out the place wherefrom, he while
working as a sentry on the date specified, had stolen the said firearms.
Since apart from that confession there was no material on record, the
respondent was discharged from the criminal case. Thereafter, a
departmental enquiry was initiated against the respondent on the basis of
the said confessional statement made by him. The departmental enquiry
culminated in his dismissal from service.
The respondent contended that even in a disciplinary proceeding
the provisions contained in Section 26 of the Evidence Act, or at least
principles analogous thereto, were attracted as such confessions in police
custody were ordinarily extracted by force.
Sections 25 and 26 of the Evidence Act although seek to achieve
the same purpose but they operate in somewhat two different fields.
Section 25 raises an embargo as regards proof of confession before a
police officer. The same need not be in police custody, whereas Section
26 raises a bar as regards admissibility of such confession if made by an
accused in the custody of a police officer although such a confession
might have been made before a person who was not a police officer. The
policy underlying Sections 25 and 26 is to make it a substantive rule of law
that confessions whenever and wherever made to the police, or while in
the custody of the police to any person whomsoever, unless made in the
immediate presence of a Magistrate, shall be presumed to have been
obtained under the circumstances mentioned in Section 24 and, therefore,
inadmissible except so far as is provided by Section 27 of the Act. A
confession would mean incriminating statement made to the police
suggesting inference of the commission of the crime and it, therefore, is
confined to the evidences to be adduced in a court of law. If the provisions
of the Evidence Act are not attracted in a departmental proceeding, a
fortiori Sections 25 and 26 shall not apply. (Commissioner of Police,
New Delhi v. Narender Singh; (2006) 4 SCC 265).
Departmental Enquiry – Weightage to be given to the decision of
Civil Court based on same facts in proceedings between the parties
– Employee dismissed after enquiry for ante-dating the insurance
cover – In civil case the Civil Court allowed the insured sum and held
that there was no ante-dating of cover note – The Disciplinary
Authority and Appellate Authority was bound to consider this
decision.
The Appellate Authority while disposing of the appeal was required
to apply his mind with regard to the factors enumerated in Rule 37(2) of
the Rules. The judgment of the civil court being inter partes was relevant.
The conduct of the appellant as noticed by the civil court was also
relevant. The fact that the respondent has accepted the said judgment and
acted upon it would be a relevant fact. The authority considering the
memorial could have justifiably come to a different conclusion having
regard to the findings of the civil court. But, it did not apply its mind. It
could have for one reason or the other refused to take the subsequent
event into consideration, but as it had a discretion in the matter, it was
bound to consider the said question. It was required to show that it had
applied his mind to the relevant facts. It could not have without expressing
its mind simply ignored the same. (Narinder Mohan Arya v. United India
Insurance Co. Ltd.; (2006) 4 SCC 713)

Service – Termination order passed without authority,

but rectified by competent authority subsequently –
Termination would not be illegal.
Where order of termination of service of an employee was passed
by an Authority not competent but act of Authority was subsequently
rectified by the competent authority, the order of termination could not be
held to be invalid or illegal. (Maharashtra State Mining Corpn. V. Sunil,
2006 (3) Supreme 797 SC)
Pension – Effect of financial constrain on revised scheme – Fixing of
a cut off a date for granting the benefits is well within the powers of
Government so long the grounds are not arbitrary - Financial
constrain could be a valid ground for introducing a cut off date while
introducing a pension scheme on revised basis.
The only ground on which Article 14 has been put forward by the
learned counsel for the respondent is that the fixation of the cut-off date
for payment of the revised benefits under the two concerned notifications
was arbitrary and it resulted in denying arrears of payments to certain
sections of the employees. This argument is no longer res integra. It has
been held in a catena of judgments that fixing of a cut-off date for granting
of benefits is well within the powers of the Government as long as the
reasons therefore are not arbitrary and are based on some rational
consideration. A supplementary affidavit filed on behalf of the State
Government by Mukesh Nandan Prasad dated 9.9.2002 brings out in
paragraph 8 that the total amount of financial burden, which would arise
as a result of making effective the payments from 1.1.1986 would be
about 2,038.34 crores. In other words, the State Government declined to
pay the arrears from 1.1.1986 on the ground of financial consideration,
which, undoubtedly, is a very material consideration for any
administration. In State of Punjab and Ors. v. Amar Nath Goyal and Ors.
(2005) 6 SCC 754 this Court had occasion to consider the very same
issue. After referring to a number of other authorities, it was held that
financial constraints could be a valid ground for introducing a cut-off date
while introducing a pension scheme on revised basis. Thus, refusal to
make payments of arrears from 1.1.1986 to 28.2.1989 on the ground of
financial burden cannot be held to be an arbitrary ground or irrational
consideration. Hence, the argument based on Article 14 of the
Constitution must fail. We see no other contention justifying the striking
down of the Validation Act passed by the competent Legislature. At any
rate, none has been pointed out to us. Thus, the only argument in favour
of the striking down having been found unacceptable, we are of the view
that the impugned judgment of the High Court is erroneous and needs to
be interfered with. (State of Bihar and others v. Bihar Pensioners
Samaj, 2006(3) Supreme 743 SC)
Forum of appeal, against order of Appointing Authority.
Authority higher than the appointing authority would also be the
designated authority for purpose of Art. 311 of the Constitution of India
and if right of appeal is not embellished, an authority higher than
appointing authority may also act as a disciplinary authority. (A. Sudhakar
v. Post Master General, Hyderabad and another, 2006(3) Supreme
225 SC)
Recruitment on ad-hoc basis in violation of recruitment rules – The
appointment is a nullity – Question of regularization/confirmation does not
arise.
The respondents herein were appointed only on applications made
by them. Admittedly, no advertisement was issued in a newspaper nor the
employment exchange was notified as regard existence of vacancies. It is
now trite law that a „State‟ within the meaning of Article 12 of the
Constitution of India is bound to comply with the constitutional
requirements as adumbrated in Articles 14 and 16 thereof. When
Recruitment Rules are made, the employer would be bound to comply
with the same. Any appointment in violation of such Rules would render
them as nullities. It is also well settled that no recruitment should be
permitted to be made through backdoor.
The contention of the learned counsel appearing on behalf of the
Respondents that the appointments were irregular and not illegal cannot be
accepted for more than one reason. They were appointed only on the basis of their
applications. The recruitment rules were not followed. Even the selection
committee had not been properly constituted. In view of the ban in employment,
no recruitment was permissible in law. The reservation policy adopted by the
Appellant had not been maintained. Even cases of minorities had not been given
due consideration. (National Fertilizers Ltd. & Ors. v. Somvir Singh; 2006 (4)
Supreme 290)
SPECIFIC RELIEF ACT:
S. 20 & Limitation Act, 1963 – Article 54 – Suit for specific
performance of contract of sale and perpetual injunction –
Agreement entered into between parties on 18.12.1964 – Suit for
specific performance filed on 4.4.1994 after more than 29 years – No
date of performance fixed in agreement –Time-bar for suit to apply
only on finding that plaintiffs had notice of refusal of performance by
defendants – And refusal on which date so as to see whether suit
filed within three years from date of knowledge of refusal to plaintiffs
– Hence, question of limitation could be decided only after taking
evidence.
The question as to how long a plaintiff, even if he had performed the
whole of his obligations under an agreement for sale, in which a time for
performance is not fixed, could keep alive his right to specific performance
and to come to Court after 29 years seeking to enforce the agreement,
may have also to be considered by the Court especially in the context of
the fact that the relief of specific performance is discretionary and is
governed by the relevant provisions of the Specific Relief Act, 1963. But
again, these questions cannot be decided as preliminary issues and they
are not questions on the basis of which the suit could be dismissed as
barred by limitation. The question of limitation has to be decided only on
the basis of Article 54 of the Limitation Act, 1963 and when the case is not
covered by the first limb of that Article, normally, the question of limitation
could be dealt with only after evidence is taken and not as a preliminary
issue unless, of course, it is admitted in the plaint that the plaintiffs had
notice that performance was refused by the defendants and it is seen that
the plaintiffs approached the Court beyond three years of the date of
notice. Such is not the case here. It is, therefore, a case where in the
context of Article 54 of the Limitation Act, the question had to be decided
on the pleadings and evidence to be adduced by the parties on the aspect
of the second limb of Article 54 of the Limitation Act. (Gunuwantbhai
Mulchand Shah v. Anton Elis Farel; 2006(2) AWC 1475 (SC))
TRANSFER OF PROPERTY ACT:
Section 54, 58(C) & 83 – Sale with a condition to retransfer the
property – Such a sale is sale proper and not a mortgage – All rights
in rem are transferred reserving only a personal right of repurchase
which would expire unless exercised within stipulated time.
There exists a distinction between mortgage by conditional sale and a
sale with a condition of repurchase. In a mortgage, the debt subsists and a
right to redeem remains with the debtor; but a sale with a condition of
repurchase is not a lending and borrowing arrangement. There does not
exist any debt and no right to redeem is reserved thereby. An agreement
to sell confers merely a personal right, which can be enforced strictly
according to the terms of the deed and at the time agreed upon. Proviso
appended to Section 58(c), however, states that if the condition for
retransfer is not embodied in the document, which effects or purports to
effect a sale, the transaction will not be regarded as a mortgage.
Section 58(c) clearly shows that a mortgage by conditional sale must
be evidenced by one document whereas a sale with a condition of
retransfer may be evidenced by more than one document. A sale with a
condition of retransfer, is not mortgage. It is not a partial transfer. By
reason of such a transfer all rights have been transferred reserving only a
personal rights to the purchaser (sic seller), and such a personal right
would be lost, unless the same is exercised within the stipulated time.
Applying the principles laid down above, the two documents read
together would not constitute a „mortgage‟ as the condition of repurchase
is not contained in the same documents by which the property was sold.
The proviso to clause (c) of Section 58 would operate in the instant case
also and the transaction between the parties cannot be held to be a
„mortgage by conditional sale‟. (Bishwanath Prasad Singh v. Rajendra
Prasad; (2006) 4 SCC 432)

TORT:
Overlapping in duties in tort and under contract – Mere negligence in
discharge of contractual duties would not be enough to give rise to
an independent cause of action in tort.
Tortious acts, being not the ones which could be the subject-matter
of departmental proceedings or negligence under a contract of
employment, cannot give rise to a civil liability by way of monetary
compensation to the employer except in certain circumstances. A suit for
damages would be maintainable only on the ground of breach of the terms
and conditions of the contract and when there are acts of malfeasance,
misfeasance and non-feasance. As held in Jay Laxmi Salt Works case,
(1994) 4 SCC 1, without malice the claim for misfeasance could not be
accepted. Non-feasance on the other hand is omission to discharge duty.
But the omission to give rise to action in torts must be impressed with
some characteristic, namely, malice or bad faith. The expressions
„malfeasance‟, „misfeasance‟ and „non-feasance‟ would, therefore, apply in
those limited cases where the defendants are liable not only for breach of
care and duty but their actions have been actuated by malice or bad faith.
The defective planning in the construction of a bundh say, therefore, may
be negligence, mistake, omission, but to say that it can only be either
malfeasance, misfeasance and non-feasance is not correct.
The appellants have not and in law could not have filed any suit
against the respondents herein alleging any tortuous act on their part. A
suit for damages by way of tortuous claim is maintainable only when
someone has a duty to perform towards others under a statute or
otherwise. In this case no tortuous act on the part of the respondents is
being dealt with. (Punjab State Civil Supplies Corpn. Ltd. v. Sikander
Singh; (2006) 3 SCC 736)

TOWN PLANNING:
Town Planning – M.P. Nagar Gram Nivesh Vikasit Bhoomiyo, Griho,
Bhavano Tatha Anya Sanrachnaon Ka Vyayan Niyam, 1975 – Power
of State Government limited to grant of previous approval and grant
of lease on concessional terms – direction by the State Government
to make allotments etc. is void.
Admittedly the land within the scheme was reserved for auditorium
and cinema hall (public and semi-public purposes) at city level. Pursuant
to or in furtherance of the said policy decision dated 10.8.1995 a decision
was taken to allot the land to the private respondent for the purpose of
establishing a printing press and publication of newspaper. Moreover,
despite allotment, the quantum of premium and annual rent was not fixed.
Establishment of a printing press would be an “industry”. It was only
subsequently that on 21.9.1998, the decision of the State was
communicated to JDA for making allotment of the land to B by extending
concession of 50% rate of market value of the land. Thereafter, JDA fixed
the value of the land on the basis of the rate for the allotted land for
financial year 1994 – 95treating it as an industry. The value of the land
could not be fixed on the basis of the rate which was prevailing in the
financial year 1994 – 95when decision to allot the land was taken in the
year 1998. The allotment having been made unauthorisedly suffered from
the vice of malice in law.
In the case of Y also, allotment was directed to be made by the
State. It might be that ultimately allotment was made by JDA. But if the
State had no role to play in the matter, even advice given by it would be
ultra vires. The State as already held, could not implement its purported
policy decision as regards allotment of land on concessional rates. Such a
direction or even a policy decision in that behalf was ultra vires and
contrary to the statutory rules framed by it. An action by way of policy
decision or otherwise at the hands of a statutory authority must be in
consonance with the statutory rules and not dehors the same. (K.K.
Bhalla v. State of M.P., (2006) 3 SCC 581)

U.P. CONSOLIDATION OF HOLDINGS ACT:

S. 5(2) and 49 – Civil suit – Jurisdiction of civil court – Suit for cancellation
of sale deed in respect of agricultural land – Questions to be decided were
whether sale deed obtained by impersonation – And whether plaintiff
wrongly shown as minor at time of execution of sale deed – Grounds
showing sale deed to be voidable – Hence, only civil court has jurisdiction
to decide dispute.
The sole question involved in the present writ petition is that whether
the suit which was filed for cancellation of the sale deed upon the
operation of the U.P. Consolidation of Holdings Act whether the same will
abate or not? The petitioners submit that in view of the provisions of
Section 5(2)(a) of the Act the proceedings before any Court stood abated
if the village in question or where the property in dispute is situate, is
notified under the aforesaid Act. It has been submitted that the courts
below have not taken the correct view that only the civil court has the
jurisdiction and consolidation courts will have no jurisdiction and the
proceedings will not abate. It has further been submitted that as to
whether respondent No. 3 had any right or title to sell out the entire
disputed land by way of sale deed in favour of the deceased Ram Deo
Singh is a question involving right and title and in view of the consolidation
operation and bar of Section 49 of the Act, the suit is liable to be abated
but the courts below have not taken into consideration the aforesaid fact.
The jurisdiction of the consolidation authorities is wider than the civil and
revenue courts and in view of Section 5(2) of the Act the suit pending in
the trial court or in appeal before any appellate authority in which title and
interest over land are involved, will stand abated. The suit of the plaintiff
was clearly bared by Section 49 of the Act.
I have considered the rival submissions made on behalf of the
parties and have perused the record as well as the decisions cited above.
From the perusal of the record and the plaint it is clear that regarding the
rights and title of the property, as there was no dispute that the plaintiff
was not a co-sharer in the property in dispute. The sale deed has been got
executed by impersonation. There is no dispute to this effect that plaintiff
respondent was not a co-sharer of the property in dispute. Therefore, the
Court was justified in holding that the relief sought in the plaint can only be
decided by the civil court and the revenue court will have no jurisdiction.
The revisional court has also considered that the ground for relief of
cancellation contained in the plaint that if the same is voidable and there is
no dispute of title in the land in question, the relief of cancellation of sale
deed was triable by the civil court only. The revisional court has also
considered that 1 am of opinion when there is no dispute of title of the land
in question, the relief of cancellation of sale deed was triable by the civil
court only. The question which requires to be decided is whether the sale
deed was obtained by impersonation and at the time of execution of the
sale deed the plaintiff was major but wrongly shown as minor coupled with
the other grounds, therefore, when the deed is voidable it is only the civil
court, which has jurisdiction to decide the dispute. (Ram Asrey Singh v.
State of U.P.; 2006 (2) AWC 1607)
Ss. 9,12,27 and 52- Partition of Chak- Provision relating to partition of joint

holding would apply.

The provisions for partition applicable to the holding of a

tenure holder under sections 9 and 12 of the U.P. Consolidation of

Holdings Act will also be applicable to a chak of which a tenure

holder was given possession after preparation of new record of right

under section 27 in case a cause of action arose thereafter and

before notification under section 27 in case a cause of action arose

thereafter and before notification under section 52 of the U.P.

Consolidation of Holdings Act. It is further held that the chak could

also be partitioned before notification under section 52 of the U.P.

Consolidation of Holdings Act in case cause of action for partition

arises. (Diwakar Rai V. Dy. Director of Consolidation, Azamgarh & Ors.,

2006 (2) ALJ 428)

S. 28 – A – Whether application for re-determination of compensation by

the petitioner/ land owner- Who failed to make reference under S. 18 can

entitle to rely upon award passed by reference Court U/S. 28-A of the Act.

The petitioner is entitled to rely on a award passed by the

reference Court under Section 28-A (3) of the Act in reference no. 133

of 1992 (Jhillu Vs. Collector and others) for maintaining his

application under Section 28-A of the Act. Therefore, the impugned

order dated 11-9-2001 is apparently illegal and liable to be quashed.

(Babu Nandan V. State of U.P. & Ors., 2006 (2) ALJ 778)

S. 48 – Withdrawal of revision-When permissible.

Though Order 23 Rule 1 of the C.P.C. is not applicable to the

U.P. Consolidation of Holdings Act, but Consolidation authorities can

exercise discretion to secure end of justice in the case and as

revision was not competent, the Deputy Director of Consolidation

rightly permitted to withdraw the same. An Authority having no

jurisdiction to entertain the revision has no jurisdiction to decide the

revision on merit. The order was rightly passed by the Deputy

Director of Consolidation permitting to withdraw the revision.

(Shankar Dayal Tewari & Anr V. Dy Director of Consolidation Gorakhpur &

Anr. , 2006(2) ALJ 685).

U.P. IMPOSITION OF CEILING ON LAND HOLDINGS ACT:

S. 13A – Rectification of mistakes – Order cannot be review by prescribed
authority by invoking S. 13A in garb of rectification.
Section 13A of the Act reads as under:
13A. Re-determination of surplus land in certain
cases.-(1) The prescribed authority may at any time,
within a period of two years from the date of notification
under sub-section (4) of Section 14, rectify any mistake
apparent on the face of record:
Provided that no such rectification which has the effect
of increasing the surplus land shall be made, unless the
prescribed authority has given notice to the tenure-holder
of its intention to do so and has given him a reasonable
opportunity of being hear.
Thus prescribed authority cannot be permitted to go into merits and
into validity of the order passed by appellate authority in respect to the
extent of land which was declared as surplus. The extent of land, which
was declared as surplus by judgment of appellate authority, could have
been reviewed/varied either by appellate authority himself or by this Court
being higher forum but in no case by the prescribed authority. The
contention of petitioner can only be stretched to a case where there can
be error apparent on record or such kind of error, which is not to reopen
declaration of land as surplus at the level of appellate authority or further
higher forum. As the appellate authority has already reduced declaration
of land as surplus which was made from 8.23 acres to 3.71 acres, if on
merit for any reason, as argued, the judgment was faulty and land was not
to be declared as surplus, remedy of petitioner if any, was to file
application before the appellate authority or he would have challenged the
order of appellate authority before this Court by filing writ petition as it was
earlier done by him and thus, this Court is of the considered view that
rejection of petitioner‟s application for review by both courts which was
moved in the garb of moving application under Section 13A of the Act is
legally sound. The scope of correction as permitted to the prescribed
authority under referred provision cannot be extended to the extent to sit
over the judgment of appellate authority and if it can be so then it can be
further stretched to the confirmed order of appellate authority even from
this Court which if is permitted, then that may lead to a very unhealthy
situation. If there is some apparent error or there is such error which can
be corrected in the forum of review, in a final judgment given by a court on
merits, then it has to be reviewed/corrected by that very court or in the
superior forum but in no case it can be in a reverse gear. Interference and
variance by a lower court in a final judgment given on merits by a higher
court, in law, cannot be corrected. (Swami Prasad v. A.D.J., Hamirpur;
2006 (2) AWC 1788)

U.P. LAND REVENUE ACT:

S. 33/34 & S. 9, 48(3) of U.P. Consolidation of Holdings Act – Mutation
without hearing on the basis of forged Patta in respect of public utility land
– The order is bad for non-affording opportunity of hearing.
On 14.5.2002, respondent No. 6 is alleged to have moved an
application before the Collector on Tehsil Diwas alleging that the pattas on
the basis of which the petitioners have got their names mutated was
forged and fabricated and the petitioners have got their names mutated
fraudulently. A report was called for. Tehsildar after making enquiries
submitted his report on 4.7.2002 pointing out that the Land Management
Committee has never passed any resolution for allotment of any land in
favour of the petitioners. Their names have been mutated on the basis of
forged patta in connivance with the Consolidation Officer and other
subordinate consolidation staff. In the meantime, another application-
dated 30.5.2003 was filed by respondents No. 4 and 5 to the same effect.
The respondent No. 1 again called for a report from the Consolidation
Officer who after making enquiries submitted a report dated 31.5.2003
again confirming that the land in dispute was a public utility land and the
mutation of the names of the petitioners is a result of fraud and
manipulation. Respondent No. 1, on the basis of the aforesaid reports,
passed the impugned order dated 3.6.2003 to expunge the names of the
petitioners.
There is no manner of doubt that the enquiry was conducted behind
the back of the petitioners and the impugned order has also been passed
without any notice or opportunity to them. Respondent No. while passing
the impugned order has found that the entries of the names of the
petitioners in the revenue record was a result of fraud and manipulation.
It is no doubt correct that entries made in revenue records on the
basis of forged or non-existing order cannot be allowed to continue as
soon as the facts come to light. However, the question which arises for
consideration is whether in such a situation the affected persons are
entitled for an opportunity of hearing before the entries of their names
could be expunged. (Rakesh v. Collector/D.D.D., Consolidation,
Baghpat; 2006 (2) AWC 1774)

U.P. ZAMINDARI ABOLITION AND LAND REFORMS ACT:

S. 122B – Suit for permanent injunction in respect of Abadi land –
Application for temporary injunction – Eviction orders passed by Assistant
Collector confirmed in revision – Hence, possession of plaintiff-petitioners
prima facie illegal – No case for grant of temporary injunction made out –
Property descriebe in Section 117 of U.P.Z.A. and L.R. Act includes abadi
sites.
Possession of land held by the plaintiffs, was subject of challenge by
the respondent-Gaon Sabha in the proceeding under Section 122B of the
Act in which the eviction orders have been passed by the Assistant
Collector and the revision of the petitioners has also been dismissed by
the Collector. Therefore, the copies of these orders filed on record being
Annexure – 3 and 4 prima facie go to show that the possession of the
plaintiffs over the land in question has been illegal. If the plaintiffs-
petitioners had to prove that their possession is legal, the relevant
documents for the purpose should have been filed on record. These
documents are the orders of allotment of the land in the form of proposal
by the Land Management Committee and its approval by the Assistant
Collector/S.D.O. concerned. Unless and until the allotment has been
made in accordance with the procedure prescribed by the statute, any
possession so held by any villager over the Gaon Sabha property is an
illegal possession and for that purpose only the provisions of Section 122B
of the Act have been enacted. Mere filing of a receipt taken from the then
Pradhan of the village in the year 1970, is not sufficient to show the prima
facie case of the petitioners for his legal possession over the disputed
property. It is true that the orders passed in the proceeding under Section
122B of the Act are no findings regarding the ownership and title of the
parties over the property. But once the orders of the authorities have been
passed for eviction in a particular case, that order as such cannot be said
to be wholly irrelevant, beyond jurisdiction and illegal. The argument of the
learned counsel for the petitioners is that the jurisdiction of the Assistant
Collector under Section 122B of the Act, does not extend to an abadi land.
1 am surprised at the submissions itself when it is already admitted by the
petitioners themselves that this land was subject of an allotment in their
favour by the Gaon Sabha. Obviously, this property vested in Gaon Sabha
under Section 117 of the Act, which says that after the notification under
Section 4 of the Act the State Government may declare all or any of the
properties detailed in sub-section (i) to (vi) to vest in Gaon Sabha. The
property so described in sub-section (i) to (vi) of Section 117 of the Act
also includes the abadi sites. Therefore, the abadi sites, which is vested in
Gaon Sabha by the order of the State Government, is definitely a property
of Gaon Sabha and if an order of Assistant Collector under Section 122B
of the Act for eviction from such abadi site has been passed against the
plaintiffs, that order cannot be said to be without jurisdiction and this
aspect has not been specifically stated in Likhi Ram‟s case by the Division
Bench of this Court. The plaintiffs have neither filed the allotment order
which includes the proposal of Land Management Committee nor the
approval of the same by the Assistant Collector/S.D.O. concerned
whereby alone any right would legally have been created for the plaintiffs-
petitioners over the disputed land. On the contrary, there is eviction order
of the petitioners passed under Section 122B of the Act and in such fact
situation if the courts below have found that the petitioners did not have
prima facie case for grant of temporary injunction and have given
concurrent findings to that effect. I do not propose to make any
interference against those orders in extraordinary jurisdiction of a writ
petition under Article 226 of Constitution of India. (Bhagwana Singh v.
Gaon Sabha Village Paijaniya, Bijnor; 2006(2) AWC 1684)

THE UTTAR PRADESH JUDICIAL SERVICE RULES:

Rules 4(m) 6, 7, 10, 15 and 19 – Recruitment to the post of Civil

Judge (Junior Division) – Relaxation of Age – Public Service
Commission issued the advertisement based on erroneous
interpretation of Rules which stated that candidates who were within
the age on 1st July 2001 and 1st July 2002 shall be treated within age
– Relaxation can be granted only if permissible under the Rules – No
right can accrue on the basis of advertisement.
The present controversy has arisen as the advertisement issued by
PSC stated that the candidates who were within the age on 1st July, 2001
and 1st July, 2002 shall be treated within age for the examination.
Undoubtedly, the excluded candidates were of eligible age as per the
advertisement but the recruitment to the service can only be made in
accordance with the rules and the error, if any, in the advertisement
cannot override the Rules and create a right in favour of a candidate if
otherwise not eligible according to the Rules. The relaxation of age can be
granted only if permissible under the Rules and not on the basis of the
advertisement. It the interpretation of the Rules by PSC when it issued the
advertisement was erroneous, no right can accrue on basis thereof.
Therefore, the answer to the question would turn upon the interpretation of
the Rules. The Rules postulate the timely determination of vacancies and
timely appointments. The non-filling of vacancies for long not only results
in the avoidable litigation but also results in creeping of frustration in the
candidates. Further, non-filling of vacancies for long time, deprives the
people of the services of the Judicial Officers. This is one of the reasons of
huge pendency of cases in the courts.

It is absolutely necessary to evolve a mechanism to speedily

determine and fill vacancies of Judges at all levels. For this purpose,
timely steps are required to be taken for determination of vacancies, issue
of advertisement, conducting examinations, interviews, declaration of the
final results and issue of orders of appointments. For all these and other
steps, if any, it is necessary to provide for fixed time schedule so that
system works automatically and there is no delay in filling up of vacancies.
The dates for taking these steps can be provided for on the pattern similar
to filling of vacancies in some other services on filling of seats for
admission in medical colleges. The schedule appended to the Regulations
governing medical admissions sets out a time schedule for every step to
be strictly adhered to every year. The exception can be provided for where
sufficient numbers of vacancies do not occur in a given year. The
adherence to strict time schedule can ensure timely filling of vacancies. All
State Governments, Union Territories and/or High Courts are directed to
provide for time schedule for the aforesaid purposes so that every year
vacancies that may occur are timely filled. All State Governments, Union
Territories and High Courts are directed to file within three months details
of the time schedule so fixed and date from which time schedule so fixed
would be operational. (Malik Mazhar Sultan & Anr. V. U.P. Public
Service Commission & Ors. 2006(3) Supreme 493)

STATUTE SECTION:
The
Contempt of Courts (Amendment) Act, 20061
[No. 6 of 2006]
[March 17, 2006]

An Act further to amend the Contempt of Courts Act, 1971

Be it enacted by Parliament in the Fifty-seventh Year of the Republic of

India as follows: -
Prefatory Note – Statement of Objects and Reasons. – The existing
provisions of the Contempt of Courts Act, 1971 have been interpreted in various
judicial decisions to the effect that truth cannot be pleaded as a defence to a
charge of contempt of court.
2. The National Commission to Review the Working of the Constitution
has also in its report, inter alia, recommended that in matters of contempt, it shall
be open to the Court to permit a defence of justification by truth.
3. The Government has been advised that the amendments to the
Contempt of Courts Act, 1971 to provide for the above provision would introduce
fairness in procedure and meet the requirements of Article 21 of the Constitution.
4. Section 13 of the Contempt of Courts Act, 1971 provides certain
circumstances under which contempt is not punishable. It is, therefore, proposed
to substitute the said section, by an amendment.
5. The Contempt of Courts (Amendment) Bill, 2003 was introduced in the
Lok Sabha on the 8th May, 2003 and the same was referred to the Department-
related Parliamentary Standing Committee on Home Affairs for examination. The
Hon’ble Committee considered the said Bill in its meeting held on the 2nd
September, 2003. However, with the dissolution of the 13th Lok Sabha, the
Contempt of Courts (Amendment) Bill, 2003 lapsed. It is proposed to re-introduce
the said Bill with modifications of a drafting nature.
6. The Bill seeks to achieve the above objects.
1. Short title. - This Act may be called the Contempt of Courts
(Amendment) Act, 2006.

1
Received the assent of the President on March 17, 2006 and published in the Gazette of
India, Extra, Part II, Section 1.
2. Substitution of new section for Section 13. – In the Contempt of Courts
Act, 1971 (70 of 1971), for Section 13, the following section shall be substituted,
namely: -
“13. Contempts not punishable in certain cases. – Notwithstanding
anything contained in anylaw for the time being in force. –
(a) no court shall impose a sentence under this Act for a
contempt of court unless it is satisfied that the contempt is
of such a nature that it substantially interferes, or tends
substantially to interfere with the due course of justice;
(b) the court may permit, in any proceeding for contempt of
court, justification by truth as a valid defence if it is
satisfied that it is in public interest and the request for
invoking the said defence is bona fide.”.
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