GENERAL
SANCTION GRANTED IN MECHANICAL MANNER,
CONVICTION UNDER TADA ACT QUASHED
T HERE ARE SIX ACCUSED IN THIS CASE,
NAMELY, SAHUL Hameed (A-1), Raja Hussain
(A-2), Zubeir (A-3), Zakir Hussain (A-4), Azeez (A-5)
and Seeni Nainar Mohammed (A-6). On 10th October,
1994, at about 06:30 a.m., A-1 to A-6 in pursuance of
the conspiracy hatched amongst them, went to the
house of one Rajagopalan (since deceased), who was
President of Hindu Munnani Association, with a
motive to kill him. A day before the incident, A-6
Seeni Nainar Mohammed had advised his brother Raja
Hussain (A-2) to meet him after completing the task
of murdering Rajagopalan. When Rajagopalan, after
taking the newspapers from a newspaper sub-agent
Saravanam (PW-3), was going through the
newspapers facing East at his house, accused
persons came from left hand side of Rajagopalan and
while A-1 caught hold of the neck of Rajagopalan
from behind, A-3 and A-4 took out knives and stabbed
on his stomach. A-5 showing a sickle threatened the
public to run away and repeatedly attacked the said
Rajagopalan and thereafter they ran away towards
west. On hearing the noise, PW-1 Krishnaveni wife
of the deceased came out of the house and saw that
her husband was lying down in a pool of blood. The
occurrence was witnessed by PW-1, PW-3, PW-4, PW-
5 & PW-6. PW-1 informed about the incident to the
Market Police Station on telephone. Upon receiving
the information, PW-2 Inspector of Market Police
Station rushed to the spot and enquired from PW-1
who gave a written complaint to him.
Law was set into motion when PW-2 Stalin Michael,
Inspector registered the FIR Ext.P2 at 07:30 a.m. at
Police Station Thilagar Ground, Madurai District,
under Sections 147, 148 and 302 of IPC in Crime
No.2490/1994. On the orders of DGP, the case was
transferred from local Police to CBCID and Shri
www.lawteller.com
Rajagopal, DSP (PW-24) took up the investigation,
went to the place of occurrence, examined the
witnesses and recorded their statements. Since PW-
24 was holding additional charge, he could not
accomplish the task of investigation and further
investigation was taken up by Shri Jones, DSP (PW-
30) and after receiving prior approval from
Superintendent of Police (PW-26), registered the case
under TADA. The records of the case were
transferred to the learned Designated Judge for
TADA Cases and after trial, the learned Designated
Judge vide his judgment and order dated 08.09.2011
convicted all the accused in TADA Case No.1/1997
holding that the prosecution has proved the first
charge as against A-1 to A-6. A-1 to A-5 were
convicted under Section 3(2) read with Section 3(1)
of TADA read with Section 149 of IPC and sentenced
to undergo life imprisonment and to pay a fine of
Rs.10,000/- each, and in default of payment of fine,
to undergo rigorous imprisonment for 1 year .
However, A-6 was convicted under Section 3(2) read
with 3(1) of the TADA read with Section 109 of IPC
and under Section 3(4) of TADA and sentenced to
undergo life imprisonment and also to pay a fine of
Rs.5,000/- and in default of payment of fine, to
undergo rigorous imprisonment for 1 year. However,
all the sentences were directed to run concurrently.
Against the judgement by the TADA Court appeal
were filed in the Supreme Court. Under Section 19 of
the TADA read with the Supreme Court (Enlargement
of Criminal Appellate Jurisdiction) Act, 1970. Criminal
Appeal No. 498 of 2012 filed by A-6 while Criminal
Appeal No. 867 of 2012 was filed by A-1 to A-5. The
Supreme Court accepted the appeal order of
conviction and sentence by the Designated Court was
quashed.
September 2017 I Lawteller I 419
GENERAL
The operative part of the judgment reads as under:-
We have noted that the sanction (Ext.P-46) granted
on 16.09.1997 by PW -28 IG, referred to A-1’s
confession (Ext.P-41) only recorded on 3.04.1997 but
it does not refer to the confession of A-6 (Ext.P-43)
which was recorded on 25.10.1994. This was the
only document which revealed that A-6 addressed
and advised A-1 to A-5 to commit the murder of
Rajagopalan, with intention to create terror in the
minds of public at large in Tamil Nadu. Therefore,
the confession of A-6 (Ext.P-43) is the only document
which refers to the intention to create terror as
required under Section 3 of TADA Act. No other
material or no other witness speaks about the
intention of the accused to commit the murder with
intention to create terror in the minds of public
which is main ingredient for invoking the TADA Act.
Unfortunately, the said document (Ext.P-41) has
neither been referred to nor relied upon by the
Sanctioning Authority in the sanction order (Ext.P-
46).
TTTTTTT
We have also noticed that the confession of A-1
(Ext.P-41) is totally contradictory to the confession
of A-6 (Ext.P43). It appears from the facts that the
Investigating Officer suppressed the material
document by not placing the same before the
Sanctioning Authority. We have further noticed that
the TADA Court convicted the accused under the
TADA Act on the basis of confession of A-6 and not
on the basis of any other material. The other point
which we have noted is that the Sanctioning
Authority (PW-28) admitted in his deposition that he
did not know Tamil and did not go through the entire
records which were in Tamil. Therefore, it is clear
that the Sanctioning Authority has not applied his
mind to the records in its entirety and granted
sanction only after considering certain documents
which were in English. Therefore, we have to accept
420 I Lawteller I September 2017
the contention of the appellants that the Sanctioning
Authority without perusing the relevant documents
issued the order of sanction and thereby it has to be
accepted that the sanction was granted
mechanically..
TTTTTTT
We have no hesitation in holding that whole
proceedings in the present case were vitiated.
Therefore, the order of conviction and sentence
passed by the Designated Court is hereby quashed
and set-aside. The appellants herein be released
forthwith, if not required in any other case.
TTTTTTT
The most important factor for determination before
the sanctioning authority was that the acts done by
a person must fall within the ambit of terrorist
activity and the accused must be a terrorist as
defined in Section 3(1).
TTTTTTT
A careful perusal of the requisition given by PW-24
to PW-26 for seeking prior approval (Ext.P-35)
reveals that a single murder on 10.10.1994 was
mentioned therein but no act of murder with intent
to create terror and panic in the minds of public,
which is the main ingredient of the offence under
TADA Act, was mentioned. The incident prior to this
murder relating to objections raised by Hindus on
the construction of mosque near Hindu temple in
Madurai was mentioned in the deposition of PW-24,
which could nowhere be referred or connected to act
of murder. Admittedly, as per his deposition, till
19.10.1994, none gave any complaint that there was
any commotion or violence at the place of
occurrence, resultantly connecting the case under
IPC to be a prima facie case under TADA leading to
seeking prior approval, which if granted, would be
bad in the eyes of law.
TTTTTTT
We have also noticed that the Sanctioning Authority
under Section 20-A(2) of TADA, i.e. PW28 - IG, CBI
www.lawteller.com

in present case, had granted permission to file a case
under TADA on 16.09.1997 vide permission order
being Ext.P.46. We may straightaway observe that the
sanctioning authority did not have necessary
material before him to show that the alleged act of
causing death of the deceased was done with intent
to create terror in the minds of public at large. Had
there been any such terror in the minds of people,
then as an aftermath of the death of the deceased
there would have been an adverse effect on the
harmony amongst different sections of people in the
vicinity of the place of incident. However, no such
incident of striking terror in the minds of people or
adverse effect on the harmony amongst any section
of society was reported. The alleged act of causing
death of an individual was only an attack by the
accused-appellants with weapons on the deceased
GENERAL
who later succumbed to the injuries.
TTTTTTT
Therefore, in our considered opinion, the approvals
granted by the Superintendent of Police (PW-26) and
the IG, CBI (PW-28), in the facts and circumstances
of the present case, were completely invalid lacking
compliance of the requirements prescribed under
Section 20-A of TADA.
TTTTTTT
Reference : Supreme Court. Seeni Nainar
Mohammed v. State Rep. By Deputy Superintendent
of Police, CriminalAppeal No. 498 of 2012With Shahul
Hameed & Ors. v . S tate Rep. By Deputy
Superintendent of Police Criminal Appeal No. 867 of
2012.
—————

µ GLOBAL GLIMPSE µ

FEDERAL JUDGE STRIKES LOUISIANA LAW REQUIRING FOREIGN-BORN

MARRIAGE APPLICANTS TO PRESENT BIRTH CERTIFICATES
A federal judge in Louisiana ruled against the state in a constitutional challenge to a law that requires
naturalized citizens who were born outside the US to present a valid birth certificate from their home country
before they can obtain a marriage license. In his ruling, Judge Ivan Lemelle from the US District Court for the
Eastern District of Louisiana granted a permanent injunction against the implementation ofAct 436, a Louisiana
law that easily passed both houses of state government and became law in 2015. The plaintiff in the lawsuit,
who immigrated to the US with his parents when he was three months old, did not have a birth certificate
because he was born in an Indonesian refugee camp, according to the ruling. He was denied a marriage
license under Act 436, which "requires that all applicants for a marriage license provide a certified birth
certificate, a valid and unexpired passport, or an unexpired visa accompanied by a Form I-94", documents he
could not obtain on account of the circumstances of his birth. The judge denied the state’s argument that a
permanent injunction would be a disservice to the public interest. "In the instant matter the permanent
injunction protects the fundamental right to marriage and the right to be free from unconstitutional
discriminatory classifications based on national origin. Consequently, this factor also weighs in favor of Plaintiff
and his motion for a permanent injunction is deemed appropriate". Because the challenge to the law was a
facial challenge, the ruling permanently enjoins and restrains future implementation of Act 436.

www.lawteller.com September 2017 I Lawteller I 421

SERVICE
OFFENCE UNDER SECTION 323 IPC DOES NOT FALL
UNDER CATEGORY OF "MORAL TURPITUDE"
D HARAM SINGH (SINCE DECEASED AND
REPRESENTED BY widow, the respondent
herein) was working as JBT teacher in Education
Department in State of Haryana since 07.10.1967.
He and two others were convicted under Section
304 Part-II IPC vide judgment and order passed by
the trial court on 29.10.1994 and were sentenced to
undergo rigorous imprisonment for four years. On
the basis of said conviction and sentence, Dharam
Singh was dismissed from service, without holding
any enquiry, vide order dated 28.03.1995 on the
ground that he was convicted and sentenced for
an offence involving moral turpitude.
While the appeal preferred against the judgment of
conviction and sentence was pending, Dharam
Singh expired on 11.12.2002 and his appeal abated.
Subsequently the appeal of the co-accused was
partly allowed and they were acquitted of the
offence under Section 304 Part II IPC but were
convicted under Section 323 read with Section 34
IPC. The role of the co-accused was admittedly
similar to that of Dharam Singh.
After the acquittal of the co-accused, the
respondent called upon the State to set aside the
order of dismissal of her husband in the light of the
finding recorded by the appellate court and to
release all the service benefits to which her
deceased husband was entitled. This claim having
been rejected, the respondent filed CWP No.10134
of 2005 which was disposed of by the High Court
directing the State to reconsider the claim of the
respondent. The matter was, therefore, reconsidered
by the State but the claim was again rejected.
The rejection of claim was challenged afresh by the
respondent by filing CWP No.14998 of 2007 which
422 I Lawteller I September 2017
was allowed by the Single Judge of the High Court,
relying on the instructions dated 26.03.1975 issued
by State of Haryana wherein offences involving
"moral turpitude" stand enlisted. It was observed
that the offence under Section 323 IPC did not fall
under said category of offences. It was further
observed that the role attributed to the deceased
husband of the respondent was similar to that of
his co-accused and that the appellate court had
held that the death in the case was not because of
the injuries attributed to the accused but it was
because of renal failure.
The decision of the Single Judge was questioned
by the State by filing Letters Patent Appeal No.1353
of 2014 (OM). Affirming the view taken by the
Single Judge, the Division Bench dismissed the
aforesaid LPA and held the respondent to be
entitled to all consequential benefits.
Against the judgement of the Division Bench State
of Haryana filed special leave petition. The Supreme
Court accepted the appeal and directed that the
respondent shall be entitled to all the benefits in
terms of the judgment under appeal except the
payment of back wages. All the other consequential
benefits were directed to be computed and released
to the respondent within two months.
The operative part of the judgment reads as under:-
The instructions dated 26.03.1975 which were relied
upon in the present case, had been considered by this
Court in Pawan Kumar v. State of Har yana and
another [1996 SCC (4) 17] and paragraph 12 of the
decision is relevant for present purposes. The said
paragraph was as under:
"12. Moral turpitude" is an expression which
www.lawteller.com

is used in legal as also societal parlance to
describe conduct which is inherently base,
vile, depraved or having any connection
showing depravity. The Government of
Haryana while considering the question of
rehabilitation of ex-convicts took a policy
decision on 2-2-1973 (Annexure E in
the Paper-book), accepting the
recommendations of the Government of
India, that ex-convicts who were convicted
for offences involving moral turpitude
should not however be taken in government
service. A list of offences which were
considered involving moral turpitude was
prepared for information and guidance in
that connection. Significantly Section 294
IPC is not found enlisted in the list of offences
constituting moral turpitude. Later , on
further consideration, the Government of
Haryana on 17/26-3-1975 explained the
policy decision of 2-2-1973 and decided to
modify the earlier decision by streamlining
determination of moral turpitude as
follows:
"… The following terms should ordinarily be
applied in judging whether a certain offence
involves moral turpitude or not;
(1) whether the act leading to a conviction
was such as could shock the moral conscience
of society in general.
(2) whether the motive which led to the act
was a base one.
(3) whether on account of the act having been
committed the perpetrator could be
considered to be of a depraved character or a
person who was to be looked down upon by
the society.
www.lawteller.com
SERVICE
Decision in each case will, however, depend
on the circumstances of the case and the
competent authority has to exercise its
discretion while taking a decision in
accordance with the above-mentioned
principles. A list of offences which involve
moral turpitude is enclosed for your
information and guidance. This list, however,
cannot be said to be exhaustive and there
might be offences which are not included in it
but which in certain situations and
circumstances may involve moral turpitude."
Section 294 IPC still remains out of the list. Thus the
conviction of the appellant under Section 294 IPC
on its own would not involve moral turpitude
depriving him of the opportunity to serve the State
unless the facts and circumstances, which led to the
conviction, met the requirements of the policy
decision above-quoted."
TTTTTTT
In the present case by the time the benefit of acquittal
of the co-accused was pressed in service and claim
was raised by the respondent, Dharam Singh had
already expired. In the circumstances, we direct that
the respondent shall be entitled to all the benefits in
terms of the judgment under appeal except the
payment of back wages. All the other consequential
benefits be computed and released to the respondent
within two months from the date of this Judgment.
With the aforesaid modification, the appeal stands
disposed of. (Para 12)
TTTTTTT
Authorities relied upon : LPA No. 95 of 2013 (O&M).
Reference : Supreme Court. State of Haryana and
Another v. Ved Kaur, Civil Appeal No. 6066 of 2017
[Arising out of SLP (Civil) No. 21622 of 2015].
—————
September 2017 I Lawteller I 423
GENERAL
FRAUD MUST BE PLEADED AND PROVED AND
NOT PRESUMED
B Y A CONVEYANCE DEED DATED 25.08.1900,
LANCELOT Ricketts sold his property known
as "Beaulieu" measuring 24 acres and 12 gunthas
situated in Bengaluru. This conveyance deed was
executed in favour of the Dewan of Mysore. It is not
disputed that thereafter , on various occasions,
portions of this Estate were acquired by the erstwhile
State of Mysore, both before and after independence.
This "Beaulieu" Estate is apparently located in the
heart of Bengaluru city. It appears that the Office of
the Karnataka Public Service Commission had a
boundary adjoining "Beaulieu" estate in which a
hotel under the name of Atria was being run. There
were a number of other commercial buildings and
residences, including the residence of appellant M.
Shankaranarayanan in this estate.
A complaint was sent by the Secretary of the
Karnataka Public Service Commission on 14.05.2004
that, in the year 1900, the property had been
transferred by the original owner Lancelot Ricketts
in favour of the Dewan of Mysore. However, it was
fraudulently shown that the property had actually
been purchased for the First Princess of Mysore out
of her personal funds. It was alleged that the original
conveyance deed dated 25.08.1900 had been executed
only in favour of the Dewan of Mysore. Furthermore,
no stamp duty was paid on the sale deed and,
therefore, it was complained that the sale was either
totally illegal or that the sale was in favour of the
State of Mysore and "Beaulieu" estate was not the
personal property of the First Princess. In the same
complaint, it was also mentioned that, in the year 1956,
the Government of Mysore acquired 6 acres of
"Beaulieu" estate and, in those proceedings,
Rajkumari Leelavathi Devi was notified as the owner
424 I Lawteller I September 2017
of the estate. In the year 1959, some other portions
of the estate were acquired and this time K. Basavaraj
Urs was shown as the owner. It was complained that
the acquisition of 20 acres and 9 gunthas of land, out
of the 24 acres and 12 gunthas, was a fraudulent
acquisition and would not confer any rights upon the
owners.
As a result of this complaint, summary proceedings
under Section 67 of the Karnataka Land Revenue Act,
1964 (for short ’the KLR Act’) were initiated against
the occupants of the land. Aggrieved by this action,
one of the parties - Smt. Asha Chakko, who is
appellant in Civil Appeal No. 4939 of 2017 [arising out
of SLP (C) No. 12595 of 2014] filed a writ petition
before the Karnataka High Court, whereas the other
parties filed appeals before the Appellate Tribunal.
The learned Single Judge quashed the order passed
by the State of Karnataka on the ground that the State
had no jurisdiction to pass the same.
The State of Karnataka preferred an appeal against
the judgment of the learned Single Judge before the
Division Bench of the High Court. The appellant M.
Sankaranarayanan applied for transfer of his appeal,
which had been filed before the Appellate Tribunal,
to the High Court. This prayer was rejected by the
Karnataka High Court. Thereafter, the appellant
approached Supreme Court in SLP (C) No. 25034 of
2011 for transfer of his case. This petition was allowed
and the operative portion of the order reads as
follows:
"3. The appellant applied to the High Court
for transfer of Appeal No. 690 of 2005, titled
as M. Sankaranarayanan vs. Deputy
Commissioner and others: filed by him before
the Karnataka Appellate Tribunal (KAT) to
www.lawteller.com

the High Court for hearing the same along
with Writ Appeal No. 643 of 2009. The High
Court dismissed the application. While
dismissing the application, the High Court
observed that the appeal pending before the
KAT has to be heard and decided by the
Tribunal itself and it cannot be clubbed with
the writ appeal.
4. Having regard to the fact that the
controversy in Writ Appeal No. 643 of 2009,
which is pending before the High Court, is
broadly identical to the appeal which has
been preferred by the appellant before KAT,
we are of the view that the High Court failed
to exercise the jurisdiction vested in it by
transferring the appeal pending before the
KAT to itself to avoid multiplicity of
arguments as well as the conflict of
judgments.
5. We, accordingly, allow the appeal and
direct that the Appeal No. 690 of 2005, titled
as "M. Sankaranarayanan v . Dy.
Commissioner, Bangalore and others"
pending before the KAT be transferred to
the High Court for its hearing and disposal
along with Writ Appeal No. 643 of 2009, titled
as "State of Karnataka and another v. Asha
Chakko and others". The Registrar, KAT
shall transfer the record and proceedings of
Appeal No. 690 of 2005 to the High Court
as expeditiously as may be possible and not
later than four weeks from the date of receipt
of copy of this order. No costs."
The writ appeal filed by the State of Karnataka in the
case of Smt. Asha Chakko was allowed mainly on the
ground that the writ petition was not maintainable,
since the petitioner had an efficacious alternative
remedy of approaching the Tribunal. As far as
transferred appeal of appellant M. Sankaranarayanan
www.lawteller.com
GENERAL
is concerned, the High Court held that since the
appeal had been filed before the Tribunal, it would
be proper to remit it back to the Tribunal for decision.
Aggrieved by the judgement of the learned Division
Bench two appeals were filed. The Supreme Court
held that State of Karnataka has no right over the
property. Consequently, the appeals were allowed
and the judgment of the Division Bench of the High
Court was set aside and that of the learned Single
Judge was restored and the appeal filed by the
appellant M. Sankaranarayanan which was
transferred to the High Court was decided in terms
of the judgments passed by the learned Single Judge
and the Supreme Court.
The operative part of the judgment reads as under:-
A bare reading of the section shows that public
roads, streets, lanes etc., and all lands which are not
the properties of others, belong to the Government.
Where the property is recorded in the ownership of
any other person or persons who are legally capable
of holding property, the provisions of Section 67 will
not apply. Section 67 cannot be used to dispute the
title of persons who have been holding property for
more than 100 years. Prior to the conveyance deed
being executed on 25.08.1900, the Dewan of Mysore
had put up a note to His Highness the Maharaja of
Mysore that the estate property is being bought for
the First Princess and the payment was to be made
out of her personal funds. He had also requested the
Maharaja to apprise the First Princess about the
facts and then obtain her approval. It is not
believable that, in the year 1900, the Maharaja of
Mysore and his Dewan colluded to commit fraud on
the State of Mysore with a view to favour the First
Princess.
TTTTTTT
As is clear from the facts narrated above, various
acquisitions took place out of "Beaulieu" estate.
September 2017 I Lawteller I 425
GENERAL
More than 20 acres of the total 24 acres and 12
gunthas were acquired by the Government of Mysore
both prior to and after the independence of the
country. Nobody raised any objection. If the land
belonged to the State, why would the State acquire
its own property? This question has not been
answered. Various transactions have taken place
after the year 1971 and portions of this estate have
been sold/transferred from one person to another.
Entries in the Revenue Record were made, but the
State never raised any objection. The sale deeds were
registered without demur. It was only in the year 2004
that some official of the Karnataka Public Service
Commission filed a complaint in this regard. In the
meantime, hotels, commercial buildings and
residences had come up on various portions of the
estate.
TTTTTTT
After 104 years of the execution of the original
conveyance deed, and after acquiring various lands
out of this very estate, we cannot permit the State to
urge that the original conveyance deed is fraudulent
or that the subsequent transfers are all collusive and,
as such, void. There are many bona fide purchasers
and, even otherwise, we are not inclined to hold that
the original transaction was invalid.
TTTTTTT
Furthermore, a bare perusal of Section 67 clearly
indicates that it only applies to public roads, streets,
lanes etc. or to such lands which are not the property
of individuals, or an aggregate of persons legally
capable of holding property. A dispute of title of
property between the State and individuals cannot
be decided in terms of Section 67. Merely because
the Secretary of the Karnataka Public Service
Commission had, in his complaint, opined that the
deed of conveyance executed more than 100 years
back was fraudulently claimed to be in favour of the
First Princess, was not sufficient ground to proceed
under Section 67. It could not be held that all
subsequent transactions relating to the estate
property were fraudulent. Fraud must be pleaded
and proved; it cannot be presumed. Therefore, we are
of the view that the learned Single Judge was
justified in holding that the proceedings under
Section 67 were without jurisdiction. We are also of
the view that the proceedings are beyond the period
of limitation.
TTTTTTT
Reference : Supreme Court. Sri M. Sankaranarayanan
v. The Deputy Commissioner, Bangalore & Ors., Civil
Appeal No. 4937 of 2017 [Arising out of SLP (C) No.
20459 of 2014] With Asha Chakko & Ors. v. State of
Karnataka & Anr. Civil Appeal No. 4939 of 2017
[Arising out of SLP (C) No. 12595 of 2014].
—————

µ GLOBAL GLIMPSE µ

OKLAHOMA SC RULES AGAINST CIGARETTE TAX

The Oklahoma Supreme Court ruled against a state cigarette tax. The plaintiffs-cigarette companies,
distributors, and smokers-argued that the $1.50 tax violated the state constitution. The majority agreed, saying
that since the tax was a revenue bill, it must originate in the House, be passed at least five days before the
legislative session ended, and be approved by either the public or 75 percent of each house. In this case, the
Senate created the tax and approved it on the last day of the session. The bill also did not gain 75 percent
of the vote, rendering it unconstitutional.

426 I Lawteller I September 2017 www.lawteller.com


WHEN ISSUE OF VIRES OF RULE CAN BE GONE
INTO BY SUPREME COURT
K EDIA GREAT GALEON LTD. & ANR. (THE
RESPONDENT) HELD a licence under Madhya
Pradesh Distillery Rules, 1995 (Rules 1995) for
manufacturing of Liquor/Spirit. A notice dated 23rd
March, 1999 was issued to Respondent No. 1 by the
District Excise Officer, demanding an amount of Rs.
13,24,189.50 as excess expenditure on the
establishment of officers and employees as per Rule
4(41) of Madhya Pradesh Distillery Rules, 1995
pertaining to year 1995-96, 1996-97 and 1997-98.
The Respondents aggrieved by the above notice filed
a writ petition in the High Court of Madhya Pradesh,
Bench at Indore being Writ Petition No. 589 of 1999.
The Respondent in its writ petition placed reliance
on a judgement of Supreme Court in M/s. Lilasons
Breweries (Pvt.) Ltd. v. State of Madhya Pradesh and
Others [1992 SCR (2) 595], in which case Rule 22 of
Madhya Pradesh Brewery Rules, 1970 which also
entitled the State to realise from the brewery charges
on officers exceeding five percent of the duty leviable
was struck down. Respondents pleaded in the writ
petition that Rule 4(41) of the Rules, 1995 is also non
est and void, consequently demand raised on the
strength of such rule is liable to be struck down. In
the writ petition following prayers were made in Para
7 by the Respondents:
"(i) A writ, direction or order in the nature of
mandamus or as deemed fit by issued quashing the
order Annexure/2 and it be declared that no demand
can be raised under Rule 4(41) of the Distillery Rules.
(ii) Such other relief be granted as deemed fit.
(iii) This petition be allowed with costs."
A counter-affidavit was filed by the State, stating
that Rule 22 of M.P. Breweries Rules, 1970 is out of
context and has no relevance since the demand has
www.lawteller.com
BUSINESS
been raised under Rule 4(41) of Rules, 1995.
State pleaded that demand made by the State is proper
and cannot be struck down, however , if the writ
petitioner wishes to challenge the vires of Rule 4(41),
same can be challenged before the Constitution
Bench.
A learned Single Judge allowed the writ petition and
quashed the demand notice Learned Single Judge
although, opined that Rule 4(41) of the Rules 1995
appears to be ultra vires to the Madhya Pradesh
Excise Act beyond the rule making power, however
since no such prayer is made by the writ petitioner,
no order in the behalf can be passed in the rules by
Bench at Indore.
Learned Single Judge, however, held that decision of
Supreme Court in Lilasons (supra) renders the
demand notice Annexure P2, as void. Learned Single
Judge also held that the demand towards
establishment charges is more than 150 per cent of
the total income of the distilleries on the basis of
which, the demand is arbitrary and unreasonable.
Aggrieved by the judgement of learned Single Judge,
the State filed a Letter Patents Appeal before the
Division Bench of the High Court, which was
dismissed on 6.9.2005, as not maintainable.
Aggrieved by the judgement of learned Single Judge
as well as judgement of the Division Bench of the
High Court special leave petition was filed by the State
of Madhya Pradesh. The Supreme Court accepted the
appeal, set aside the judgement of the High Court
dated 4.5.2000 and that the appeals were disposed of
with the direction that liberty is being given to the
respondent to represent against the demand notice
dated 23rd March, 1989 before the State. The State
Government shall consider such representation taking
September 2017 I Lawteller I 427
BUSINESS
into consideration relevant facts relating to concerned
years and the other factors as relevant. In the event
such representation is submitted to appellant no. 2
within four weeks, the state shall consider
representation and take appropriation decision
expeditiously, held the Court.
The operative part of the judgment reads as under:-
Under the Rules of the High Court, the Bench hearing
the writ petition at Indore was not competent to pass
the order, declaring Rules ultra vires. The statement
in the counter-affidavit, as noted above indicates that
there was some specific bench for hearing
constitutional issues regarding vires of the Rules.
Thus had the writ petitioner intended to challenge
the vires of the rules, he had to file the writ petition
for appropriate relief before the Bench having roster
to decide the vires. Thus, it is clear that writ
petitioner never intended to challenge the vires of
the Rules.
TTTTTTT
Learned counsel for the Respondents has also placed
reliance on the judgement of this Court in Godrej
Sara Lee Limited versus Assistant Commissioner (AA)
and Another [(2009) 14 SCC 338], in support of the
proposition that when the order of an statutory
authority is questioned on the ground that same
suffers from lack of jurisdiction, the fact that no
specific prayer has been made is inconsequential.
TTTTTTT
The present is not a case where the District Excise
Officer who has issued the notice of demand lacks
jurisdiction nor there was any issue of retrospective
or retroactive operation. The above case is no
manner helps the respondents. The second relied by
the counsel for the r espondent Girimallappa v.
Special Land Acquisition Officer M and MIP and
Another, also in no manner helps the respondents.
TTTTTTT
In Lilasons case, Rule 22 of the M.P. Brewery Rules
428 I Lawteller I September 2017
1970 was questioned.
TTTTTTT
The basis of judgement of Lilasons’s case (supra)
was the judgement in Bimal Chandra Banerjee v.
State of Madhya Pradesh Etc. [1970 (2) SCC 467].
In Bimal Chandra Banerjee’s case this Court had
occasion to examine the provisions of Madhya
Pradesh Excise Act, 1915 inclusive of Sections 27
and 62(2)(h).
TTTTTTT
Judgement in Banerjee’s case was delivered on 19th
August, 1970. There has been amendment in Section
28 by Madhya Pradesh Act no. 6 of 1995 by which
provision specific provision requiring licensee to lift
for sale, the minimum quantity of country spirit or
Indian made liquor, fixed for his shop and to pay the
penalty at the prescribed rate on the quantity of
liquor short lifted, has been brought in the statute
book. The Scheme of M.P. Excise Act 1915 having
been amended by the aforesaid Act of 1995, the very
basis of case of Banerjee is knocked down and
cannot be relied on in view of changed statutory
scheme.
TTTTTTT
After amendment in Section 28 by the aforesaid
Amendment Act, the contents of Section 28 as noticed
by Lilasons cannot be relied on for finding out as to
whether demand under Rule 4(41) is beyond the
scope of Section 28.
TTTTTTT
We fail to see as to how the judgement of this Court
in Lilasons’s case can be relied by the High Court
for declaring the demand as void.
TTTTTTT
A perusal of the writ petition indicates that no
sufficient foundation was laid in the writ petition to
enter into the issue as to whether the demand is
arbitrary and unreasonable. From the details of the
demand it is further clear that in the demand for the
year 1996-97 expenditure on salary was shown as
www.lawteller.com

Rs. 4,36,897/- but no figure pertaining to the
Revenue of the said year is mentioned. Whether the
distillery could function during the relevant period
and without there being any Revenue how the
expenditure on salary is fastened on respondent is
not explained.
TTTTTTT
Taking into consideration the overall circumstances,
as noted above, ends of justice will be served in
giving liberty to the respondent to represent against
the demand notice dated 23rd March, 1989 before
the State. The State Government shall consider such
representation taking into consideration relevant
BUSINESS
facts relating to concerned years and the other
factors as relevant in the present case.
TTTTTTT
Authorities relied upon : 1976 (1) SCC 791, 1976 (3)
SCC 540, 1975 (1) SCC 737, 1970 (2) SCC 467,
AIR 1954
SCC 220, 34 LED 620.
Reference : Supreme Court. State of M.P. & Anr. v.
Kedia Great Galeon Ltd. & Anr., civil appeal no. 921-
922 of 2008 (from the Judgement and Order dated
4.5.2000 of the High Court of Madhya Pradesh, Bench
at Indore in L.P.A. No. 245 of 2000).
—————

µ GLOBAL GLIMPSE µ
PRESIDENT TRUMP SIGNS BILL ALLOCATING GOVERNMENT FUNDS FOR
VETERANS’ PRIVATE MEDICAL CARE
President Donald Trump signed the VA Choice and Quality Employment Act that will allocate $2.1 billion in
government funds to the Veterans Choice Fund, and an additional $1.8 billion to core VA health programs
and medical facility leases. Trump signed the bill in response to the budget shortfall in the Department of
Veterans Affairs (VA), which threatened healthcare for thousands of veterans. Additionally, the bill also
addresses staff shortages in veterans health administration, lack of proper training and experience in the
administration and delivery of healthcare, accountability of political appointees placed in charge of managing
the VA, hiring of VA medical center directors, competitive salary packages of physician assistants, re-
employment of former VA employees, promotional opportunities for VA technical experts, and employment of
students and recent graduates, among other things. While veterans groups welcomed the bill, they also
criticized the delay stating: "Unfortunately, this bill took far too long to get to the president’s desk and is $1.8
billion more expensive than it needed to be". The bill was approved unanimously by both houses of Congress
before it was presented to the president.

KENYA PLASTIC BAG BAN OFFICIALLY GOES INTO EFFECT IN EFFORT TO

REDUCE POLLUTION
A Kenyan ban on plastic bags officially went into effect, after it was announced in February. The ban applies to
Kenyans producing, selling or using plastic bags and carries a punishment of up to USD $40,000 or imprisonment
of up to four years. Although the ban has a wide target audience, it will initially be enforced to target manufacturers.
The plastic bags covered under the ban include carrier bags with handles and flat bags without handles. Kenya
joins more than 40 other nations that have enacted similar laws, but Kenya’s is far more stringent than all of the
others to date. Kenya hopes the ban will greatly reduce plastic pollution, but this goal is estimated to come at the
expense of around 60,000 jobs lost.

www.lawteller.com September 2017 I Lawteller I 429

GENERAL
CONVICTION OF RELATIVES NOT STAYING WITH
DECEASED, SET ASIDE
T AMKINAT ARA @ BULBUL GOT MARRIED
TO MD. PARWEZ Alam on 30.09.2009 and she
used to live in her in-laws’ house. The prosecution
case is that after her marriage deceased used to live
with Md. Parwez Alam (husband), Abdul Gaffar
(father-in-law), Baitun Nisha (mother-in-law), Bibi
Parwana Khatoon (sister of husband) and her
husband Md. Hasan (both appellants). It is alleged
by the informant Md. Faisal PW-5 (brother of the
deceased) that the deceased was killed by setting her
on fire by all the above accused. On receiving
telephonic information on 30.05.2010 from father-in-
law of the deceased, PW-5 Md. Faisal went to see
his sister and found that she had died of burn
injuries. On the basis of First Information Report
given by Md. Faisal Crime Case No. 184 of 2010 was
registered relating to offence punishable under
Section 304B read with Section 34 IPC against all the
five accused at Police Station Khajanchi Hat,
Madhubani. PW-7 Arti Kumari Jaiswal, Station House
Officer, started investigation. Dead body of the
deceased was sealed and sent for post mortem
examination. PW-6 Dr. Umesh Kumar of Sadar
Hospital, Purnea, conducted post mortem examination
on the dead body of Tamkinat Ara and found
following ante mortem injuries:
"(i) Rigor mortis present in all four limbs and
trunk
(ii) Tongue was protruded between teeth
(iii) Burned (burnt) blood clot from/in ear
opening
(iv) 100% burn of five degree with smell. Key
oil and roasted smell, line of redness along
burn area absent, vesication and sign of
inflammation was absent, formation of
430 I Lawteller I September 2017
granulation tissue absent, indicating post
mortem burnt."
The Medical Officer opined that the deceased died
of asphyxia due to strangulation.
Later, investigation was taken over by PW-8 Lal Babu
Prasad who submitted charge sheet against all the
five accused. Accused Baitun Nisha (mother-in-law
of the deceased) died during the course of trial, as
such, case as against her stood abated and the trial
court proceeded against remaining four accused.
After framing charge against the accused, the trial
court recorded the evidence of PW-1 Syed Masuf
Ahmad, PW-2 Md. Azam Rad, PW-3 Samim Akhtar,
PW-4 Taleba Kauser (brother of the deceased), PW-
5 Md. Faisal (brother of the deceased and informant),
PW-6 Dr. Umesh Kumar (who conducted post mortem
examination), PW-7 Arti Kumari Jaiswal (who started
investigation) and PW-8 Lal Babu Prasad (who
concluded the investigation).
The prosecution evidence appears to have been put
to the accused under Section 313 of Criminal
Procedure Code whereafter, on behalf of the accused,
defence evidence was adduced, and DW -1 Md.
Mozammil Hussain, DW-2 Md. Shamim, DW-3 Manish
Kumar Srivastava, DW-4 Raghunandan Yadav, DW-
5 Rahul Kumar, DW-6 Mukesh Kumar, DW-7 Nakir
Yadav, DW-8 Dhani Yadav, DW-9 Md. Jasir and DW-
10 Sanni Yadav, were got examined.
The trial court, after hearing the parties, found all the
four accused guilty of offence punishable under
Section 304B read with Section 34 IPC, and convicted
them accordingly. Md. Parwez Alam (husband of the
deceased) was sentenced to rigorous imprisonment
for ten years, and each one of the remaining three
www.lawteller.com

convicts was sentenced to seven years rigorous
imprisonment.
Aggrieved by the judgment and order dated
19.11.2013/26.11.2013, passed by the trial court in
Sessions Trial No. 1219 of 2010 (with Sessions Trial
No. 617 of 2011), whereby the accused were convicted
and sentenced, as above, three appeals were filed
before the High Court. Criminal Appeal (SJ) No. 59 of
2014 was filed by Md. Parwez Alam (husband of the
deceased), Criminal Appeal (SJ) No. 20 of 2014 was
filed by Abdul Gaffar (father-in-law of the deceased)
and Criminal Appeal (SJ) No. 48 of 2014 was filed by
present appellants Bibi Parwana Khatoon and Md.
Hasan. The High Court, after hearing the parties,
allowed the appeal of father-in-law of the deceased
but maintained the conviction and sentence recorded
against other three.
Against the judgement of the High Court special leave
petition was filed. The Supreme Court accepted the
appeal, set aside the conviction and sentence
recorded against the appellant Bibi Parwana Khatoon
@ Parwana Khatoon and Md Hasan @ Hasan Raja.
They were acquitted of charge of offence punishable
under Section 304B read with Section 34 IPC.
GENERAL
The operative part of the judgment reads as under:-
In view of the above discussion of oral and
documentary evidence, we find that both the courts
below have erred in law in holding that the charge
under Section 304B read with Section 34 IPC stood
proved as against the present appellants. In our
opinion, in view of the evidence discussed above, it
cannot be said that it is proved beyond reasonable
doubt that the present appellants, who are sister-in-
law and brother-in-law of the deceased, tortured the
victim for any demand of dowry. In our opinion, in
the present case which is based on circumstantial
evidence it cannot be said that appellants had any
common intention with the husband of the deceased
in commission of the crime. It is sufficiently shown
on the record that they used to live in a different
village. Therefore, we are inclined to allow the
present appeal.
TTTTTTT
Reference : Supreme Court. Bibi Parwana Khatoon
@ Parwana Khatoon and another v. State of Bihar,
Criminal Appeal No. 888 of 2017 [Arising out of SLP
(Crl.) No. 6630 of 2016].
—————

µ GLOBAL GLIMPSE µ

WASHINGTON SC UPHOLDS SEATTLE GUN TAX

The Washington Supreme Court upheld Seattle’s tax on guns and ammunition sales. The two individual gun
owners and organizations bringing the suit argued that the tax was actually a state regulation on guns, which
is prohibited by a Washington state law. The six-justice majority affirmed the lower court’s decision in favor
of the city. The majority opinion said, "While courts should be dubious of regulations masquerading as
taxes (and vice versa), in this case Watson [the plaintiff] offers no convincing evidence that the Ordinance
has a regulatory purpose or intent". The court also cited the fact that the revenue from the sale of guns was
used for public services as evidence that the ordinance was a tax. The dissenting justice argued that since
Seattle passed an ordinance that relates to firearms, it is invalid, because the state law prohibits the city from
doing exactly that.

www.lawteller.com September 2017 I Lawteller I 431

 LAW FOR YOU
SECOND REMINDER NOTICE
CANNOT BE CONSTRUED AS
ADMISSION OF NON-SERVICE OF
FIRST NOTICE
It is clear from Section 27 of the General Clauses Act,
1897 and Section 114 of the Indian Evidence Act,
1872, that once notice is sent by registered post by
correctly addressing to the drawer of the cheque,
the service of notice is deemed to have been
effected. Then requirements under proviso (b) of
Section 138 stands complied, if notice is sent in the
prescribed manner. However, the drawer is at liberty
to rebut this presumption. It is well settled that
interpretation of a Statute should be based on the
object which the intended legislation sought to
achieve. "It is a recognized rule of interpretation of
a Statutes that expressions used therein should
ordinarily be understood in a sense in which they
best harmonize with the object of the statute, and
which effectuate the object of the Legislature If an
expression is susceptible of a narrow or technical
meaning, as well as popular meaning, the Court
would be justified in assuming that the Legislature
used the expression in the sense which would carry
out its object and reject that which renders the
exercise of its power invalid". Supreme Court in
catena of cases has held that when a notice is sent
by registered post and is returned with postal
endorsement "refused" or "not available in the
house" or "house locked" or "shop closed" or
"addressee not in station", due service has to be
presumed. Though in process of interpretation right
of an honest lender cannot be defeated as has
happened in this case. From the perusal of relevant
sections it is clear that generally there is no bar
under the N.I. Act to send a reminder notice to the
drawer of the cheque and usually such notice cannot
be construed as an admission of non-service of the
first notice by the appellant as has happened in this
case.
432 I Lawteller I September 2017
Reference: SC. N. Parameswaran Unni v. G.
Kannan and another, criminal appeal no.
455 of 2006.
CASUAL LABOUR-ENTITLED TO
RECKON ONLY HALF OF SERVICE
FOR PENSIONARY BENEFITS, AS
PER RAILWAY SERVICE RULES
The grant of temporary status of casual labour is
not akin to appointment against a post and such
contingency is not covered by Rule 20 of Railway
Service (Pension) Rules (1993) and the same is
expressly covered by Rule 31 which provides for
"half the service paid from contingencies shall be
taken into account for calculating pensionary
benefits on absorption in regular employment
subject to certain conditions enumerated there in."
Thus Rule 31 is clearly applicable while computing
eligible services for calculating pensionary benefits
on granting of temporary status. Period of casual
labour prior to grant of temporary status by virtue
of Note-1 Rule 31 has to be counted to extent of 50%
for pensionary benefits.
Reference: SC. Union of India and others v.
Rakesh Kumar and others, civil appeal no.
3938 with 3939, 3940, 3941, 4384, 3943,
3944 of 2017 [arising out of SLP (C) No.
23723 with 23725 of 2015, 3382, 28597 of
2016, 821, 8365 @ CC No. 1516 of 2017,
3719 of 2017.
"CARGO HANDLING SERVICE" AND
"PACKAGING ACTIVITY"
A careful reading of Section 65(23) of the Finance
Act, which defines "Cargo Handling Service" would
go to show that though the word packing is included
therein, same is referable to the word "Cargo"
whereas in Section 65(76b) "Packing Activity" is
defined to mean "Packaging of Goods". The
www.lawteller.com

distinction between two expressions, namely ,
"cargo" and "goods" in two different provisions of
Act becomes evident if cargo is understood to
denote goods which are ready for transportation
whereas packaging of goods is a stage prior i.e.
before they became cargo and in fact on completion
of such packaging goods become cargo. The
position becomes more clear if dictionary meaning
of the word "cargo" is taken into account. In the
instant case the appellant has nothing to do with
transportation of goods which it packs within the
factory unit of principal manufacturer prior to the
goods leaving the factory. All activity undertaken
by appellant, though related to packing activity, is
at a stage when the goods are yet to clear the
factory gate as manufactured goods for onward
transportation. Therefore, prior to amendment made
by the Finance Act of 2005 with ef fect from
16.6.2005, the appellant would not be liable to pay
service tax on service rendered by it in terms of
Section 65(23) read with Section 105 (zr) of the Act.
Reference: SC. Signode India Ltd. v. Commr.
of Cen. Excise & Customs-II, civil appeal
no.(s) 6038-6039 of 2007.
TRANSFER AND RECRUITMENT BY
TRANSFER
Transfer and recruitment by transfer are entirely two
different concepts. No doubt transfer can be from
one category to another category or within class if
rule permits interchangeability of categories within
a class. Any other transfer both intra category and
inter category are in fact, under law is a selection
and appointment by way of a transfer from one
category to another or from one class to another
class or from one service to another . If it is transfer
simplicitor it conveys a different meaning and if it
is a recruitment by transfer, it conveys a different
concept altogether . The latter is a mode of
www.lawteller.com
LAW FOR YOU
selection/recruitment to a service. Transfer in relation
to service simply means a change of a place of
employment within an organization. Such transfer
being to a similar post in same cadre and therefore
obviously such a transfer does not result in the
termination of his lien in the parent cadre but
recruitment by transfer is a different service concept
altogether. It is a method of recruitment to a service,
in instant case to a different category in same service
initially and thereafter to a different service
altogether. Once an employee undergoes a transfer
by way of a recruitment to a different cadre or to a
different service. Merely because a person is senior ,
if senior is not otherwise eligible for consideration
as per rules for promotion, the senior will have to
give way to eligible juniors.
Reference: SC. Palure Bhaskar Rao etc. etc.
v. P. Ramaseshaiah and others, etc., civil
appeal nos. 6795-6798 with 6799-6800, 6801
and 6802-6803 of 2014.
COURT SHOULD NOT P ASS
INTERIM ORDERS IN MATTERS OF
ADMISSION
It is perspicuous that court should not pass interim
orders in matters of admission, more so, when
institution had not been accorded approval. Such
kind of interim orders are likely to cause chaos,
anarchy and uncertainly. And, there is no reason for
creating such situations. There is no justification or
requirement. High Court may feel that while
exercising power under Article 226 of Constitution,
it can pass such orders with certain qualifiers as has
been done by impugned order, but it really does not
save situation. It is because an institution which has
not been given approval for course, gets a premium.
That apart, by virtue of interim order, cold grants
approval in a way which is subject matter of final
adjudication before it. There is no reason to invite a
September 2017 I Lawteller I 433
LAW FOR YOU
disaster by way of an interim order. A Judge has to
constantly remind himself about precedents in field
and not to be swayed away by his own convictions.
Reference: SC. Dental Council of India v. Dr.
Hedgewar Smruti Rugna Seva Mandal,
Hingoli and others, civil appeal no. 4926 of
2017 [arising out of ALP (Civil) No. 26887
of 2016].
WHEN BAIL CAN BE GRANTED
While exercising the power for grant of bail, the
court has to keep in mind certain circumstances and
factors-The requisite factors are: (i) the nature of
accusation and the severity of punishment in case
of conviction and the nature of supporting evidence;
(ii) reasonable apprehension of tampering with the
witness or apprehension of threat to the
complainant; and (iii) prima facie satisfaction of the
court in support of the charge.
Reference: SC. Virupakshappa Gouda and
another v. State of Karnataka and another,
criminal appeal no. 601 of 2017 [arising out
of S.L.P. (Cri.) No. 8781 of 2016.
COURT ENTITLED TO EXAMINE
FAIRNESS OF SELECTION
PROCESS OF MINORITY
INSTITUTION
Autonomy of a minority institution does not
dispense with the requirement to act fairly and in a
transparent manner and the High Court in exercise
of its power of judicial review is entitled to examine
fairness of selection process. Grievance of a citizen
that he was treated unfairly cannot be ignored on
the ground that a minority institution has autonomy
or right of choice. Exercise of right of choice has to
be fair, non-discriminatory and rational. While under
the constitutional scheme, a "minority institution"
434 I Lawteller I September 2017
is free to select and appoint a principal, without
being bound by the principle of seniority alone,
whether the appointment has been made fairly and
reasonably and whether there is violation of right
of an individual eligible candidate by the minority
institution by not adopting fair procedure, is liable
to be tested in exercise of power of judicial review
under Art. 226 of the Constitution.
Reference: SC. Mrs. Ivy C. da. Conceicao v.
State of Goa & Ors., civil appeal no. 1257 of
2017 [arising out of SLP (C) No. 38558 of
2012].
BCI EXERCISING ORIGINAL
JURISDICTION, CANNOT REMAND
DISCIPLINARY PROCEEDINGS
BACK TO STATE BAR COUNCIL
When language employed under S. 36B(1) and S. 36
are read in juxtaposition, there remains no scintilla
of doubt that legislature desired that disciplinary
proceedings are to be put an end to within a
particular time frame by State Bar Council and if that
is not done, whole thing gets transferred to the BCI,
which is obliged to cause an enquiry . Thus
understood, there can be no trace of doubt that
original jurisdiction to deal with complaint stands
transferred to BCI. Once original jurisdiction is
transferred, to rely upon language that BCI may
dispose of would include any manner of disposal
which would include a remand, cannot be thought
of. That is neither legislative intendment nor
legislative purpose. The legislature, never intended
a complaint made against an Advocate either from
perspective of complainant or from delinquent to be
transferred to BCI, again to be sent to back. There
is a distinction between an appellate jurisdiction
which BCI exercises under S. 37 and the original
jurisdiction under S. 36B(1). While exercising
appellate jurisdiction. BCI can remand matter to
www.lawteller.com

State Bar Council. Once a complaint is made by a
litigant, it has to follow a definite procedure and is
required to be dealt with as per command of Act to
conclude disciplinary proceeding within a period of
one year from date of receipt of complaint or date
of initiation of proceedings at the instance of State
Bar Council. On many an occasion, it has come to
the notice of Supreme Court that disciplinary
authority of State Bar Council is not disposing of
compliant within stipulated period, as a
consequence of which proceeding stands
transferred to BCI. The responsibility to deal with
disciplinary proceedings is cast on State Bar Council
which constitutes its Disciplinary Committee. Every
member of the Disciplinary Committee is aware that
proceeding has to be concluded within one year. It
would be advisable that State Bar Council take a
periodical stock of cases in each meeting with regard
to progress of Disciplinary Committee, find out
cause of delay and guide themselves to act with
expediency so that Council, as a statutory body ,
does its duty as commanded under Act. Thus, Order
passed by Disciplinary Committee of BCI and
remands the matter to Disciplinary Committee of BCI
to decide same in accordance with law within a
period of three months from the date of receipt of
copy of judgement would be liable to be set aside.
Reference: SC. Ajitsinh Arjunsinh Gohil v.
Bar Council of Gujarat and another, civil
appeal no. 8307 of 2015.
PUBLIC POLICY
Public policy means what is in larger interest of
society involving questions of righteousness, good
conscience and equity upholding law and not
retrograde interpretation. It cannot be invoked to
facilitate loanee to avoid legal obligation for
repayment of loan. Loanee has pious duty to abide
by his promise and repay. Timely repayment ensures
www.lawteller.com
LAW FOR YOU
facilitation of loan to others who may be needy .
Public policy cannot be invoked to effectively
prevent a loanee from repayment unjustifiably
abusing law.
Reference: SC. Himachal Pradesh Financial
Corporation v. Anil Garg and Ors., civil
appeal no. 661 of 2008.
JUDICIAL FUNCTION CANNOT BE
DELEGATED
S. 33(1) of Karnataka S tamp Act (34 of 1957)
stipulates that for purpose of finding out as to
whether instrument is ’duly stamped’ or not and
consequently as to whether such instrument liable
to be impounded or not, examination of instrument
is necessary. Section 33 fundamentally pertains to
examination and impounding of an instrument. It
empowers Judge of High Court to delegate duty of
examination and impounding instrument to such
officer as Court appoints in that behalf. The
delegation by a Judge of High Court will not clothe
officers the jurisdiction of determining nature and
character of instrument inasmuch as such fact needs
to be determined by Judge while exercising judicial
function. Such judicial function is not to be
delegated to an officer of Court by Judge of High
Court. What is delegated under proviso (b) of sub-
section (2) of Section 33 is only to examine
instrument for purpose of determining as to whether
instrument is duly stamped or not and for
impounding same. Section 33(2)(b) does not
contemplate or permit any adjudication as regards
nature and character of instrument. The delegated
power has to be restricted to cover area, that is,
whether instrument bears proper stamp and thus
complies with requirement of being "duly stamped",
and stamp duty payable on same must be
determined only with reference to terms of
instrument. Proviso (b) to sub-section 33(2) does
September 2017 I Lawteller I 435
LAW FOR YOU
not empower Judge of High Court to direct officer
of High Court to enquire and to find out the nature
and character of document. The word "examination"
used in proviso (b) to Section 33(2) of Act cannot
be allowed to have such wide amplitude as context
does not so envisage. A judicial functioning has to
be done in a judicial manner . The duty of
determination of an instrument or, to explicate, to
determine when there is a contest a particular
document to be of specific nature, adjudication has
to be done by Judge after hearing counsel for
parties. It is a part of judicial function and hence,
same cannot be delegated.
Reference: SC. Black Pearl Hotels (Pvt.) Ltd.
v. M/s Planet M. Retail Ltd., civil appeal nos.
2973-2974 of 2017 [arising out of SLP (C)
Nos. 10635-10636 of 2014].
PRINCIPLES GOVERNING
SENTENCING POLICY
There is a wide discretion given to Court to impose
any imprisonment which maybe from one day (or
even till rising of court) to ten years life. However ,
at same time, judicial discretion which has been
conferred upon Court, has to be exercised in a fair
manner keeping in view well established judicial
principles which have been laid down from time to
time, prime consideration being reason and fair play .
Following principles can be deduced from reading
of various judgments:
(i)Imprisonment is one of methods used to
handle convicts in such a way to protect
and prevent them to commit further crimes
for a specific period of time and also to
prevent others from committing crime on
them out of vengeance. The concept of
punishing criminals by imprisonment has
recently been changed to treatment and
rehabilitation with a view to modify criminal
436 I Lawteller I September 2017
tendency among them.
(ii)There are many philosophies behind
such sentencing justifying these penal
consequences. The philosophical/
jurisprudential justification can be
retribution, incapacitation, specific
deterrence, general deterrence,
rehabilitation, or restoration. Any of above
or a combination thereof can be goal of
sentencing.
(iii) Notwithstanding above theories of
punishment, when it comes to sentencing
a person for committing a heinous crime,
deterrence theory as a rationale for
punishing offender becomes more relevant.
In such cases, role of mercy, forgiveness
and compassion becomes secondary.
(iv) In such cases where deterrence theory
has to prevail, while determining quantum
of sentence, discretion lies with Court.
While exercising such a discretion, Court
has to govern itself by reason and fair play,
and discretion is not to be exercised
according to whim and caprice. It is the
duty of Court to impose adequate
sentence, for one of purposes of imposition
of requisite sentence is protection of
society and a legitimate response to
collective conscience.
(v) While considering as to what would be
appropriate quantum of imprisonment,
Court is empowered to take into
consideration mitigating circumstances, as
well as aggravating circumstances.
Reference: SC. State of Himachal Pradesh v.
Nirmala Devi, criminal appeal no. 667 of
2017 [arising out of SLP (Cri.) No. 8983 of
2012].
ooooooo
www.lawteller.com

WHETHER MATERIAL IRREGULARITIES ARE ALONE
SUFFICIENT TO SET ASIDE AUCTION SALE - HELD, NO
S TATE BANK OF INDIA (RESPONDENT NO. 2)
IS THE PLAINTIFF /decree holder whereas
respondent No. 1 is the defendant/judgment debtor
in O.S. No.192 of 1987. Respondent No.2 obtained a
money decree for Rs.5,15,390/- against respondent
No.1 on 16.03.1998 in O.S. No.192 of 1987 for the loan
given to her by respondent No.2 and which remained
unpaid by respondent No.1. Since respondent No.1
failed to satisfy the decree, respondent No.2 filed
execution application and brought the schedule
property owned by respondent No.1-judgment debtor
to auction sale through the process server of the
Court of Senior Civil Judge, Kovvur, in execution
proceedings in E.P. No. 46 of 1998 in O.S. No.192 of
1987 for realization of decretal dues.
The suit schedule property was, accordingly, attached
by the executing Court under a warrant. Notice was,
accordingly, issued to respondent No.1-judgment
debtor in respect of the said executing proceedings
on 14.07.1999 to which she filed counter affidavit
raising certain objections. On 31.09.1999, the
executing Court overruled the objections raised by
respondent No.1 in her counter affidavit and fixed
22.09.1999 as the date of settlement of terms. On
22.09.1999, the terms of proclamation of sale were
settled fixing the date for sale of the said property
on 17.11.1999.
Pursuant to the above referred proceedings,
proclamation of the sale was issued on 05.10.1999 by
the executing Court under Order 21 Rule 64 of the
Code mentioning therein the conditions of sale.
Proclamation of the sale was entrusted to the Process
Server of publication on 27.10.1999. The Process
Server gave endorsement on 02.11.1999 that the sale
proclamation was affixed to the house/suit schedule
property and also by beat of tom tom near the
www.lawteller.com
BUSINESS
property and also affixed the same on the notice board
of the Court. On 04.11.1999, sale warrant was issued
to the Bailiff to give 15 days’ notice by affixing the
same in court house, making due proclamation of the
suit schedule property. The proclamation of the sale
was published in the newspaper on 05.11.1999 stating
that the sale would be held on 17.11.1999.
On 17.11.1999, the property was brought to auction
sale where 7 bidders participated. The appellant herein
was the highest bidder of Rs.7,15,000/-. Out of the
said bid amount, Rs.1,78,750/- was paid to the Bailiff.
The Bailiff filed a return on 18.11.1999 about the sale
stating that he published about sale by tom tom and
the appellant was the highest bidder and the initial
amount was deposited with respondent No.2-Bank
after deducting poundage.
Dissatisfied with the auction, the judgment debtor filed
an application under Order 21 Rule 90 seeking setting
aside of the sale, inter alia, on the ground that the
proclamation was done within 15 days and hence it is
illegal, tom tom wala neither made proclamation and
nor took neighbours’ signatures, proclamation was not
published in Nagar Panchayat office, publication was
defective in nature because it did not mention the
valuation of the property etc. It was also objected that
the Bank brought only three bidders whereas if more
bidders had participated, the property put to sale
would have fetched easily between 12 to 14 lakhs.
By order dated 20.04.2000, the Senior Civil Judge,
Kovvur found no merit in any of the objections raised
by respondent No.1 and accordingly dismissed the
application.
Challenging the said order, the judgment debtor-
respondent No.1 filed an appeal before the High
Court.
September 2017 I Lawteller I 437
BUSINESS
The High Court, by judgment dated 23.12.2005,
allowed the appeal and set aside the order of the
executing Court, inter alia, holding that if the
judgment debtor deposits a sum of Rs.7,15,000/- being
the price fetched at the public auction within a period
of three weeks from the date of receipt of a copy of
the judgment, the sale held would not be given effect
to. It was held that if the executing Court feels that
the amount deposited by the judgment debtor is
sufficient to discharge the decretal amount, it would
not be necessary to put the property to auction and
the amount so deposited earlier by the auction
purchaser shall be refunded to him. It was held that
if the amount ordered to be deposited by the judgment
debtor is more than the amount due to the decree
holder, excess amount, after adjusting the amount due
to the decree holder/auction purchaser, be refunded
to the judgment debtor. It was held that no clear 15
days’ notice of sale as per Rules was given and hence
sale held is irregular. It was lastly held that in default
of payment of Rs.7,15,000/- within the stipulated
period, the appeal shall stand dismissed.
Aggrieved by the said judgment, the auction
purchaser filed special leave petition. The Supreme
Court accepted the appeal, set aside the judgement
of the High Court and restored that of the executing
Court.
The operative part of the judgment reads as under:-
It is noticed that respondent No. 1, in her
application for setting aside the sale, had mainly
raised four objections. Firstly, clear 15 days’ notice
was not given for sale of the properties as required
under the Rules. Secondly, the valuation of the
property was not properly mentioned in the
concerned documents so as to enable the parties to
know its proper valuation prevailing on the date of
sale. Thirdly, the market value of the property on the
date of auction was more than the price actually
fetched in the auction, and four thly, no pr oper
438 I Lawteller I September 2017
publication including beating of drum was made
before the date of auction due to which there was
less participation of the bidders in the auction sale.
TTTTTTT
Thirdly, judgment debtor did not adduce any
evidence nor brought any bidder to purchase the
property for a higher price than the purchase bid
(Rs.7,50,000/-) except to say in the application that
value of the property was between Rs.12 lakhs to
Rs.14 lakhs. In our view , this objection has no
substance for want of any evidence.
TTTTTTT
Fourthly, there was adequate publicity given with
the aid of beat of drums in the locality. It was proved
with the record of the executing Court as was rightly
held by the executing Court and lastly, in our view,
a clear 15 days’ notice was given for auction sale
fixed for 17.11.1999 when counted from 05.10.1999.
In other words, 15 days have to be counted from
05.10.1999 because it is on this date the order was
issued as contemplated under Order 21 Rule 64 for
proclamation of sale fixing the date of sale as
17.11.1999.
TTTTTTT
The law on the question involved herein is clear. It
is not the material irregularity that alone is sufficient
for setting aside of the sale. The judgment debtor has
to go further and establish to the satisfaction of the
Court that the material irregularity or fraud, as the
case may be, has resulted in causing substantial
injury to the judgment-debtor in conducting the sale.
It is only then the sale so conducted could be set aside
under Order 21 Rule 90(2) of the Code. Such is not
the case here.
TTTTTTT
Authorities relied upon : 1973 (2) SCC 629.
Reference : Supreme Court. Chilamkurti Bala
Subrahmanyam v. Samanthapudi Vijaya Lakshmi &
Anr., Civil Appeal No. 5988 of 2007.
—————
www.lawteller.com

EXECUTING COURT CAN NEITHER TRAVEL
BEHIND A DECREE NOR SIT IN APPEAL OVER IT
T HE GENESIS OF THE PRESENT LIS IS
TRACEABLE TO CIVIL SUIT (OS) No. 1690 of
2010 instituted before the High Court of Delhi at New
Delhi by the appellant against the respondent arrayed
as the proprietor of M/s. Kargaappa Auto Products
and M/s Paans Auto Products for recovery of Rs.
20,94,953/- arising from business transactions between
the parties. The appellant described itself to be a
company registered under the Companies Act, 1956
and engaged in the business of manufacture and sale
of auto components/parts, the respondent was
introduced as the proprietor of the afore-named
proprietorship firms. According to the appellant, the
respondent approached it in the month of November ,
2002 for a business deal and on the basis of the
bargain entered into, it supplied auto components and
parts to the respondent, as per the specifications
mentioned and raised bills in connection therewith.
As per the books of account maintained in the regular
course of business, at the relevant time i.e. 15.10.2007,
Rs. 8,01,708/- was due and outstanding against the
respondent in the accounts of M/s. Kargaappa Auto
Products and Rs. 4,93,952/- as on 6.6.2008, in the
account of M/s. Paans Auto Products, thus totalling
Rs. 12,95,660/-. As this amount was not paid in spite
of repeated demands, and the ultimate notice dated
28.12.2009, addressed by the appellant to the
respondent, the suit was filed for realisation of the
aforementioned amount together with interest @ 24%
p.a. for an aggregate sum of Rs. 20, 94,953/-.
Though on the receipt of the summons in the suit,
the respondent arranged for his representation, he
eventually failed to submit his written statement and
accordingly, his defence was struck off vide order
dated 20.10.2011, in view of his persistent default to
www.lawteller.com
GENERAL
that effect. Subsequent thereto, the appellant filed the
affidavit of one of its directors in endorsement of its
pleaded case, who proved, amongst others, the copies
of various invoices authenticating the supply of
goods to the respondent and also the statement of
accounts pertaining thereto. This witness too was not
cross-examined on behalf of the respondent, though
opportunity was granted and eventually the Trial
Court, on a consideration of materials on record,
decreed the suit for Rs. 18,95,077/- by allowing the
interest @ 18% p.a. in lieu of 24%, as claimed.
As the records would reveal, a defective appeal was
filed on behalf of the respondent thereafter only to
be withdrawn in due course. The appellant launched
the execution and the application in connection
thereto was registered as E.P. No. 11787 of 2014 to
execute the decree as aforementioned. It was
thereafter that an application for review was filed by
the respondent before the High Court seeking to
recall the judgment and order dated 16.12.2011. It was
pleaded by the respondent that the suit was not
maintainable on account of non-joinder/mis-joinder of
proper and necessary parties. Though he had
admitted that he was the proprietor of Paans Auto
products, he asserted that he was not so of M/s.
Kargaappa Auto Products and that instead his wife
Mrs. A. Kamalla being so was the proper and
necessary party and that in view of this defect, the
suit was liable to be dismissed. He also pointed out
that the name of this firm is M/s. Karpaga Auto
Products and not M/s. Kargaappa Auto Products, as
recited in the plaint. The respondent alleged fraud as
well and contended that the appellant was guilty of
suppression of material facts of rejection of its
goods. Further, he also alleged collusion and
connivance between his counsel and the appellant
September 2017 I Lawteller I 439
GENERAL
for which the former deliberately abstained from
taking necessary steps to ensure his effective
representation in the suit, thus resulting in the ex-
parte decree.
He pleaded that on receiving the summons in the suit,
necessary instructions were conveyed to his counsel
at Delhi to appropriately contest the proceeding, but
the latter refrained from either filing the written
statement or from taking necessary steps resulting in
his default for which ultimately, the suit was decreed.
According to him, though he was in touch with his
counsel at Delhi through his counterpart at Chennai,
he was being given the impression that there was no
progress in the suit and that he would be duly
informed about any substantial development therein
whenever the same would occur. The respondent
contended that it was in February/March, 2014, when
he and his local counsel grew suspicious of the
evasive replies given by his counsel at Delhi, that the
records of the suit were consulted, which revealed
that his defence had been struck off on 20.10.2011
and the suit had been decreed on 16.12.2011. The
records of the suit also divulged that though an
opportunity to him for cross-examination of the
witnesses by appellant had been afforded, it was not
availed of due to the sheer dereliction of the
professional duties of his counsel.
Noticeably, the respondent in his review application
disclosed that his said counsel however did prefer
an appeal against the ex-parte decree, which
eventually was returned in view of the attendant
defects. The appeal was however not re-filed and that
in the meanwhile, a complaint had been lodged
against the counsel with the Bar Council of Tamil
Nadu at Chennai, was mentioned as well.
It is worthwhile to note that no interim order was
passed on this review application, which eventually
was dismissed on 15.4.2015 on account of
unexplained delay of three years.
440 I Lawteller I September 2017
Meanwhile, however the respondent filed his counter-
affidavit in the execution proceedings and also
followed it up with an application under Section 47
of CPC to resist the execution of the decree. Suffice
it would be to state that the demurrals in these
pleadings are in substance a replication of those
narrated in the review application and, therefore are
not being re-traversed.
In refutation, the appellant did file a common counter-
affidavit asserting that the respondent had placed
orders for automobile components, which were
accordingly dispatched and as on the date of the
institution of the suit, the payments in connection
therewith were outstanding, a suit was filed to
recover the same and eventually, it was decreed on
16.12.2011 for a sum of Rs. 18,95,077/- along with
pendente lite and future interest @ 18% p.a. Apart
from highlighting that the respondent had after the
receipt of the summons/notices in the suit,
continuously abstained himself from contesting the
same by filing his written statement or taking further
initiatives and that, therefore the decree passed was
valid in law, the appellant maintained that the suit had
been filed against the respondent, as he represented
both the firms and had participated in the transactions
in that capacity for which either the mistake in the
name of M/s. Kargaappa Auto Products instead of
M/s Karpaga Auto Products or non-impleadment of
his wife as the sole proprietress thereof was wholly
inconsequential qua the aspect of executability of the
decree. The allegation of suppression of any material
fact, as alleged was denied. The accusation of
collusion between the learned counsel for the
respondent and the appellant was stoutly denied as
well. It was pointed out that the fact of filing of appeal
preferred by the same counsel against the decree
belied the allegation of dereliction of duty as
unfounded. Underlining the inexplicable delay and
inaction of three years on the part of the respondent
in filing the review petition, it was contended that the
www.lawteller.com

resistance to the executing proceedings was only with
the objective of protracting the proceedings to his
advantage on flimsy and frivolous grounds.
The respondent next filed an affidavit on the same
lines as narrated in his counter and the application
under Section 47 CPC and sought to supplement the
same by producing documents to that effect by way
of oral and documentary testimony of the pleaded
facts. The appellant in its rejoinder did object to this
initiative on the part of the respondent as
impermissible, being beyond the purview of Section
47 CPC and prayed for obliteration of such evidence.
The appellant pleaded that after the counter-affidavit
had been filed by the respondent in the execution
proceedings, arguments on behalf of the decree-
holder were heard and though the proceedings were
deferred for the arguments on behalf of the
respondent, an application by him under Section 47
CPC was filed, the maintainability whereof was
questioned by the appellant and that it was at that
belated stage that the respondent sought to
introduce the documentary evidence.
The Executing Court however by its order dated
8.2.2016, dismissed the objection of the appellant by
taking note principally of the fact that the respondent
was not the proprietor of Karpaga Auto Products and
that it was necessary to examine as to how he was
related to the said proprietorship firm, a question to
be decided in the proceedings under Section 47 CPC.
By the impugned order, the High Court has affirmed
this determination of the Executing Court by
observing that though the issue of maintainability of
the application under Section 47 CPC had been raised
by the appellant, it was within the right of the
respondent to lead evidence, both oral and
documentary pertaining to all questions arising
between the parties to the suit. It was of the view
that the question of maintainability of the application
under Section 47 CPC ought to be decided along with
www.lawteller.com
GENERAL
the objections raised with regard to the executability
of the decree.
Against the judgement of the High Court special leave
petition was filed. The Supreme Court accepted the
appeal. The Executing Court would proceed with the
execution proceedings and take it to the logical end
with utmost expedition.
The operative part of the judgment reads as under:-
The plaint discloses that the respondent had
represented before the appellant to be authorised to
act on behalf of both the firms and in that capacity
had participated in the transactions that followed.
In that perspective, even assuming that the name of
one of the firms was wrongly mentioned and that in
fact, it is the wife of the respondent, who is the
proprietress thereof, with whom there is no conflict
of interest, these in our comprehension per se, would
not render the decree void or inexecutable. Such
errors, even if exist, would not infest the decree with
any jurisdictional infirmity or reduce it to a nullity.
Noticeably, there is no dispute with regard to the
identity of the firms involved and their representation
by the respondent in the suit transactions. The
allegation of fraud and collusion between the
learned counsel for the respondent and the appellant
is visibly self-serving, omnibus, speculative and
unauthentic and cannot therefore, after so many
years, ipso facto render the decree invalid on account
thereof. Visibly, the respondent had been the center
figure in all the transactions between the parties on
behalf of the firms, as stand proved in the suit and
the resistance to the execution of the decree is neither
on behalf of M/s. Kargaappa Auto Products/M/s.
Karpaga Auto Products nor its proprietress, his wife
contending that the decree is neither binding on the
firm nor on her. For all practical purposes, the said
firm is still being represented by the respondent in
the subsisting proceedings. The sequence of events
September 2017 I Lawteller I 441
GENERAL
disclose that the suit had been instituted in the year
2010 and was decreed on 16.10.2011. The persistent
default on the part of the respondent has been
adverted to hereinabove. Though a defective appeal
had been filed on his behalf in the year 2012, it was
withdrawn and was not re-filed by removing the
defects. The Execution Petition though lodged in the
year 2014 has not seen the fruit of the decree as on
date. The Review Petition filed by the respondent has
also been dismissed. Significantly , in all the
proceedings initiated by the respondent to stall the
execution of the decree, the same pleas have been
reiterated.
TTTTTTT
Authorities relied upon : 1971 (1) SCR 66.
Reference : Supreme Court. M/s Brakewel
Automotive Components (India) Pvt. Ltd. v. P.R.
Selvam Alagappan, Civil Appeal Nos. 4313-4314 of
2017 [Arising out of SLP (C) Nos. 20745-20746 of
2016].
—————

µ GLOBAL GLIMPSE µ

NEW ZEALAND PARLIAMENT APOLOGIZES FOR HOMOSEXUALITY

CONVICTIONS
The New Zealand Parliament formally apologized to the hundreds of men who were criminally convicted under
antiquated anti-homosexuality laws. The country’s House of Representatives stated that it apologizes "to
those homosexual New Zealanders who were convicted for consensual adult activity, and recognize[s] the
tremendous hurt and suffering those men and their families have gone through, and the continued effects
the convictions have had on them". Lawmakers also unanimously approved the first stage of a bill that
"provides an expungement scheme for convictions for a historical homosexual offense if the conduct
constituting the offense, if engaged in when the application for expungement was made, would not constitute
an offense under the laws of New Zealand". Under the bill, approximately 1,000 men will be able to have their
convictions quashed. New Zealand decriminalized homosexuality in 1986 and legalized same-sex marriage
four years ago. The bill provides no entitlement to compensation regardless of any fines or losses incurred
from the conviction.

EUROPE RIGHTS COURT UPHOLDS BELGIUM BURQA BAN

The European Court of Human Rights upheld a Belgian ban on wearing the niqab, a full-face veil, in public
spaces. The court dismissed two cases, Belcacemi and Oussar v. Belgium and Dakir v. Belgium, that asserted
the ban was in violation of Articles 8, 9, 10 and 14 of the European Convention on Human Rights. Both cases
concerned women who chose to wear the veil of their own volition and felt the ban was discriminatory and
without a "legitimate aim". The court rejected the claims that the ban violated a right to private life under the
Convention finding that it "could be regarded as proportionate to the aim pursued, namely the preservation
of the conditions of ’living together’ as an element of the ’protection of the rights and freedoms of others’".
In Dakir, the court found that the Conseil d’État had infringed Dakir’s right of access to a court under Article
6 by ruling a previous application to annul the ban inadmissible and awarded her 800EUR for costs and
expenses.

442 I Lawteller I September 2017 www.lawteller.com


WHETHER AUDIT OBJECTION AMOUNTS
TO ’INFORMATION’ FOR THE PURPOSE OF
ESCAPED ASSESSMENT
M /S LARSEN & TOURBRO LTD. (THE
APPELLANT-COMPANY), having its
registered office at Mumbai, is a public limited
company and is involved in manufacturing, trading,
leasing and construction business throughout the
country. At the relevant time, the appellant-Company
was involved in the execution of civil work contracts
for its client, viz., Tata Iron & Steel Company Ltd.
(TISCO) and had been filing its returns under the
Bihar Finance Act, 1981 (hereinafter referred to as ’the
State Act’) and also under the Central Sales Tax Act,
1956 (hereinafter referred to as ’the Central Act’) in
the Commercial Taxes Department, Urban Circle,
Jamshedpur.
For the Assessment Year (AY) 1991-92, the appellant-
Company filed returns under the State Act. However,
the assessment proceedings in relation to the above
period, i.e., AY 1991-92 was completed in the year 1996
and an assessment order dated 24.01.1996 was passed
by the assessing authority.
After the assessment proceedings, an audit team of
the Auditor General, Bihar, audited the assessment
order dated 24.01.1996 and found that the dealer was
allowed exemption of Rs. 3,12,47,916/-, being the
amount of goods consumed by the appellant-
Company during the course of execution of works
contract. The appellant-Company claimed that such
goods were purchased on payment of tax but no
declaration in Form IX-C along with other evidence
was submitted whereas the production or declaration
of Form IX-C was mandatory, hence, the claim was
not allowable and the said fact was conveyed to the
assessing authority.
On 28.09.2000, the office of Commissioner of
www.lawteller.com
BUSINESS
Commercial Tax, Urban Circle, Jamshedpur, served a
show cause notice to the appellant-Company to state
as to why tax should not be levied on it for the
amount of Rs. 3,12,47,916/- which was wrongly
exempted from being taxed under the provision of the
State Act.
After affording an opportunity of hearing to the
appellant-Company, a re-assessment order dated
27.02.2006 was passed by the Deputy Commissioner,
Commercial Taxes, Urban Circle, Jamshedpur whereby
an additional demand of Rs. 35,72,475/- was created
against the appellant-Company.
Being aggrieved by the re-assessment order dated
27.02.2006, the appellant-Company preferred a writ
petition being W.P. (T) No. 2630 of 2006 before the
High Court. A Division Bench of the High Court, vide
order dated 17.11.2006, dismissed the petition filed by
the appellant -Company while upholding the order
dated 27.02.2006 passed by the Deputy Commissioner,
Commercial Taxes, Urban Circle, Jamshedpur.
Aggrieved by the order dated 17.11.2006, the
appellant-Company filed special leave petition. The
Supreme Court accepted the appeal, set aside the
order dated 27.2.2006 passed by the Deputy
Commissioner as well as the order dated 17.11.2006
passed by the division Bench of the High Court.
The operative part of the judgment reads as under:-
Sub-Section (1) of Section 19 very clearly prescribes
that the competent authority, upon information, if
satisfied that reasonable ground exists to believe that
any turnover of a registered dealer or a dealer to
whom grant of registration certificate has been
refused in respect of any period has, for any reason,
September 2017 I Lawteller I 443
BUSINESS
escaped assessment or any turnover of any such
dealer assessed under sub-Section (5) of Section 17
has been under-assessed or assessed at a rate lower
than that which was cor rectly applicable, may,
within eight years from the date of order of
assessment, proceed to assess or reassess the amount
of tax in respect of such turnover.
TTTTTTT
The word "information" used in the aforesaid Section
is of the widest amplitude and should not be
construed narrowly. It comprehends not only variety
of factors including information from external sources
of any kind but also the discovery of new facts or
information available in the record of assessment not
previously noticed or investigated. Suppose a
mistake in the original order of assessment is not
discovered by the Assessing Officer, on fur ther
scrutiny, if it came to the notice of another assessor
or even by a subordinate or a superior officer, it
would be considered as information disclosed to the
incumbent officer. If the mistake itself is not
extraneous to the record and the informant gathered
the information from the record, the immediate
source of information to the Officer in such
circumstances is in one sense extraneous to the
record. It will be information in his possession within
the meaning of Section 19 of the State Act. In such
cases of obvious mistakes apparent on the face of the
record of assessment, that record itself can be a
source of information, if that information leads to a
discovery or belief that there has been an escape of
assessment or under-assessment or wrong assessment.
TTTTTTT
It would be sufficient to refer to a judgment of this
Court in Anandjiharidas & Co. v. S.P. Kasture [AIR
1968 SC 565] wherein it was held that a fact which
was already there in records doesn’t by its mere
availability becomes an item of "information" till the
time it has been brought to the notice of assessing
authority. Hence, the audit objections wer e well
within the parameters of being construed as
’information’ for the purpose of section 19 of the State
Act.
TTTTTTT
Authorities relied upon : (1985) 58 STC 217, (1984)
56 STC 273, (1979) 4 SCC 248, (1971) 3 SCC 654,AIR
1968 SC 565, AIR 1968 SC 565, AIR 1947 FC 32.
Reference : Supreme Court. M/s Larsen & Toubro
Ltd. v. State of Jharkhand and Ors., Civil Appeal No.
5390 of 2007 [From the Judgment and Order dated
17.11.2006 of the High Court of Jharkhand at Ranchi
in WP No. 2630 of 2006].
—————

µ GLOBAL GLIMPSE µ

CALIFORNIA COURT AWARDS $417 MILLION IN TALCUM POWDER LAWSUIT

The Los Angeles Superior Court issued a verdict in favor of a consumer who allegedly developed ovarian
cancer after using a drug manufacturer’s talc-based products. Defendant Johnson and Johnson currently
faces about 4,800 claims regarding the company’s failure to warn consumers of cancer risks linked to such
products. In the current case, the plaintiff was awarded $417 million in damages, which is the largest verdict
awarded in the matter thus far. According to the plaintiff, the drug manufacturer has failed to acknowledge
studies linking ovarian cancer to genital talc use. Johnson and Johnson, however, has stated that studies
and federal agencies have not found their talc-based products to be carcinogenic. The manufacturer has
expressed its intention to appeal the verdict and support the safety of its products.

444 I Lawteller I September 2017 www.lawteller.com


HIGH COURT ORDER GIVING LIBERTY
TO AMEND PLEADINGS TO SET UP
NEW CASE, HELD ERRONEOUS
O NE JEEVANDAS WAS THE OWNER OF A
PART OF PROPERTY bearing plot Nos. 109 to
112, which was demarcated and known as sub-plot
No.10 of the said plot. This sub-plot measures 828
square yards and is situated outside Shanpur
Darwaza, Mahendi Kuva Road, Ahmedabad.
Jeevandas executed a sale deed in respect of this plot
(hereinafter referred to as the ’suit property’) in favour
of one Kantibhai (for short ’Kanti’) on 16.04.1959 for
99 years, of which yearly rent fixed was Rs.1860/-.
This lease deed also provided an option to the lessee
to purchase the suit property. The lessee (Kanti)
executed an Agreement of Sell dated 15.07.1974 in
respect of the suit property in favour of one
Jitenderkumar Nanjibhai (for short ’Jitender’) at a total
consideration of Rs.1,85,001/-. The purchaser paid
earnest money of Rs.25,000/- at the time of execution
of the said Agreement to Sell. This agreement further
provided that the sale deed would be executed within
a period of five months from the date of execution of
the agreement. Sale deed was, however, not executed
within the said period and by mutual agreement this
period was extended by another five months. A further
sum of Rs. 20,000/- was paid by Jitender to Kanti.
However, even during the extended period, no sale
deed could be executed.
According to Jitender (purchaser), the period for
execution of the sale deed was further extended by
two years, though Kanti disputed this. Kanti gave
notice dated 06.05.1981 to Jitender for cancellation of
Agreement to Sell putting blame on Jitender in not
performing his part of the contract. Jitender replied
to the said notice taking the position that the period
for execution of sale deed had been further extended.
www.lawteller.com
GENERAL
As this led to dispute between the two, Kanti filed
two suits against Jitender: for cancellation of
Agreement to Sell and for possession and mesne
profits. After sometime, Jitender also filed suit against
Kanti for specific performance of Agreement dated
15.07.1974. All these suits were clubbed together. The
trial court decreed the suit filed by Kanti. Suit of
Jitender for specific performance was dismissed
barred by limitation as well. The trial court also
returned the finding to the effect that Jitender could
not establish that he was ready and willing to perform
the contract. He, in fact, did not even enter the
witness box in support of his case. The trial court,
therefore, accepted the case put up by Kanti to the
effect that even when Kanti was in a position to
handover complete and vacant possession of the suit
property, Jitender did not perform his part of the
contract within stipulated period.
Jitender filed three appeals against the aforesaid
judgment. During the pendency of these appeals,
both Kanti and Jitender passed away and their legal
heirs were brought on record. The High Court has
decided these appeals by the common judgment dated
22.10.2013. The High Court has maintained the decree
of dismissal of the suit filed by Jitender for specific
performance. Upholding the judgment of the trial
court, the High Court has held that Jitender is not
entitled to the specific performance of the contract.
However, insofar as decree passed in favour of Kanti
in the suit filed by him is concerned, the High Court
has set aside the said decree and remanded the case
back to the trial court. The High Court discussed the
nature of suit filed by Kanti and pointed out that his
suit was for cancellation of agreement on the ground
September 2017 I Lawteller I 445
GENERAL
that there was failure on the part of Jitender to show
readiness and willingness to execute the sale deed,
which plea was accepted by the trial court. The High
Court has held that this is an erroneous approach
inasmuch as under Section 31 of the Specific Relief
Act, 1963, the suit can be instituted for cancellation
of written agreement when such written agreement is
void or voidable. Thus, Kanti was supposed to show
that the agreement is void or voidable. Instead, plea
taken was that the other side has not shown
readiness or willingness to execute the sale deed,
which could not be a ground for cancellation of the
agreement.
The High Court pointed out that Kanti was given
lease of the said property in question for a period of
99 years by Jeevandas and, therefore, Kanti was only
a lessee. No doubt, the said lease deed gave right to
Kanti to purchase the suit property from the original
owner. However, such an option to purchase the suit
property given to Kanti was not exercised by him
during the period mentioned in the lease deed or
during the life time of the original owner i.e.
Jeevandas. Thus, Agreement to Sell executed by
Kanti in favour of Jitender was in the nature of
’contingent contract’ and, therefore, Jitender could
hardly acquire any right when Kanti himself was not
the owner of the property. It is further held that Kanti
had yet to become the owner. As he had not acquired
propriety rights over the suit property, it was not
possible for him to transfer such a right to Jitender.
Having held so, the matter has been remanded back
under the following circumstances:
"… But the point is, what is nature of
agreement - i.e. agreement to sell, executed
in the present case. It is in nature of
contingent contract and hence, voidable on
that count. The question that what is the
nature and strength of agreement to sell -
can be answered satisfactorily only when
446 I Lawteller I September 2017
plea based on the point that contract is in
nature of voidable contract is raised and the
same is defended by the other side. Broadly
stated, status of ’seller’ at the time of
execution of agreement to sell being status
of ’lessee’ only and acquiring of proprietary
rights by the purchaser depending on
’owner’ executing the deed in favour of
purchaser, places the agreement to sell in
category of ’contingent contract’. Prima
facie, the agreement falls in realm of
’contingent contract’. Upon hearing the
learned advocate for the parties and in the
circumstances of the present case, it appears
to be just and proper to allow the present
appeal and remand Civil Suit No. 4104 of 1982
for its disposal in accordance with law. It
would be open to the parties to amend the
pleadings accordingly and to lead the
evidence - if the parties are so advised - in
addition to the evidence already on record.
It is clarified that it would also be open for
the parties and the trial court to refer to and
rely upon the evidence already on record.
Since the suit is very old, it is expected that
trial court would dispose of the suit as
expeditiously as possible."
Against the judgement of the Division Bench special
leave petition was filed. The Supreme Court accepted
the appeal, set aside the judgement of the High Court.
The operative part of the judgment reads as under:-
In the suit filed by him, Kanti had pleaded that after
the execution of the agreement, Jitender failed to
perform his obligation contained therein as he
defaulted in making the payment of balance
consideration within the time stipulated. On that
basis, the prayer made in the suit was that the
www.lawteller.com

amount of earnest money under the agreement stood
forfeited as the agreement had become non-effective,
null and void and consequently possession of part
of suit property held by Jitender was illegal which
should be handed over to the plaintiff. Mesne profit
was also claimed. Second suit filed by Kanti was
specifically for mesne profit and for possession. No
case was set up by Kanti that agreement was void
because of the reason that he was only a lessee in
the suit property which was given to him by the
original owner Jeevandas for a period of 99 years
and as he had not become the owner thereof, the
agreement was in the nature of ’contingent contract’.
TTTTTTT
High Court could not, of its own, set up a new case
GENERAL
which was not a case pleaded by any of the parties.
The decree passed by the High Court on this ground
and direction to the trial court to dispose of the case
afresh after allowing amendment in the pleadings
and leading further evidence on amended pleadings
is, therefore, clearly erroneous in law. We, thus, set
aside this direction.
TTTTTTT
Reference : Supreme Court. Patel Kantilal
Parshottamdas (D) & Ors. v. Jitendrakumar Nanjibhai
Mistry (D) Through Lrs & Ors., Civil Appeal No. 3912
of 2017 [From the Judgement and Order dated
22.10.2013 of the High Court of Gujarat atAhmedabad
in First Appeal No. 5013 of 1996].
—————

µ GLOBAL GLIMPSE µ

JORDAN PARLIAMENT REPEALS LAW ENCOURAGING RAPISTS TO MARRY

VICTIMS
The Jordanian parliament narrowly voted to repeal Article 308 of the penal code, which permitted rapists to
escape punishment if they married their victims. Rights groups applauded the decision, calling it a step forward
in ending violence against women, especially in Middle Eastern countries where girls and women were offered
as gifts to their rapists to avoid family shame. Though the Jordanian Cabinet voted to revoke the law in
April, Parliament’s upper body and King Abdullah II must also approve this action before the repeal can take
effect.

UK COURT: TONY BLAIR NOT TO BE PROSECUTED OVER IRAQ WAR

The UK High Court rejected a "crime of aggression" allegation against former UK Prime Minister Tony Blair
by a former Iraq General Abdul Wahed Shannan Al Rabbat. The two justices dismissed the claim as UK law
does not recognize a crime of aggression: "The existence of such difficulties cannot in any way justify the
domestic courts of England and Wales departing from the clear principle that it is for Parliament to make such
conduct criminal under domestic law. Parliament deliberately chose not to do so. The courts cannot usurp
that function. It is for Parliament and Parliament alone to make the decision. Furthermore, there is no answer
to the practical and constitutional difficulties identified by Lord Bingham and Lord Hoffman that would arise
if a prosecution was brought without clear statutory provision". The matter was dismissed before it could be
brought to the Supreme Court for judicial review, the High Court determining that the highest court in Britain
would not break away from its ruling in R v. Jones.

www.lawteller.com September 2017 I Lawteller I 447

 LEGAL UPDATES
MAIDEN STEP TOWARDS
PAPERLESS COURT
The familiar presence of heaps of case files on the
judges’ dais at Ex-Chief Justice of India J.S. Khehar’s
courtroom was conspicuous in their absence. Their
absence heralds the Supreme Court’s first move
towards a "paperless" court. Slick interactive digital
display devices have replaced towering stacks of files
found perched precariously on the judges’ desks.
These devices will guide the judges through the daily
roster of cases. In a candid comment, Justice Khehar
told the courtroom at large that "it is easier to function
without the paper files." "We are learning," the Chief
Justice said to the advocates in the courtroom. Chief
Justice Khehar said the uncluttered desk had ushered
in a hassle-free atmosphere, which is in fact good for
the lawyers arguing their cases. Otherwise, judges,
lawyers, litigants and court staff had to deal with
multiple copies of voluminous petitions and bulky
annexures running into thousands of pages on a daily
basis. A Supreme Court statement said it had made all
preparations to evolve as a paperless court. "As the
concept of paperless court involves various technical
and functional issues, it is proposed to implement the
project gradually, as it would be a new method of
working for the advocates and the judges." It said that
"at the first instance, only fresh matters listed in the
first five courts will be accessed by the judges digitally
on an interactive display device."
MAKE REGISTRATION OF
MARRIAGES COMPULSORY
The Law Commission of India has recommended
compulsory registration of marriages to protect gullible
women who become victims of fake marriages. In a
report submitted to the Centre, the commission headed
by former Supreme Court judge, Justice B.S. Chauhan,
said the lack of provisions for compulsory registration
of marriages had proven disastrous for women and
448 I Lawteller I September 2017
deprived them of societal recognition and legal
security. "Fraudulent marriages are on the rise
especially among non-resident Indians. Compulsory
registration can serve as a means to ensure that
conditions of a valid marriage have been performed,"
the commission recommended. It said a minor
amendment to the Registration of Births and Deaths
Act, 1969, including a provision for compulsory
registration of marriage, would serve the purpose. The
commission clarified that there was no need to amend
any of the personal laws of religious communities. The
commission pointed to a 2006 ruling of the Supreme
Court in Seema vs Ashwani Kumar that said marriages
of persons who are citizens of India belonging to
various religions should be registered compulsorily in
their States. In 2012, a Bill was tabled in Parliament to
amend the Registration of Births and DeathsAct, 1969,
to provide for compulsory registration of marriages.
The Bill was passed by the Rajya Sabha in July 2013,
but could not be taken up for consideration in the Lok
Sabha. It lapsed on the dissolution of the 15th Lok
Sabha in 2014.
NO TRANSGRESSION OF FAITH IN
OPENING SREE
PADMANABHASWAMY TEMPLE
VAULT TO MAKE AN INVENTORY
The Supreme Court advised its amicus curiae and
senior advocate Gopal Subramanium to discuss the
opening of a vault at the Sree Padmanabhaswamy
temple in Kerala to complete the inventory of the
temple valuables and treasures. The Bench observed
orally that the very purpose of the Supreme Court’s
ongoing intervention in the temple’s management and
affairs is to usher in sanctity and transparency. The
opening of Kallara B to make an inventory of the
valuables would hardly be a transgression of faith and
sentiments. The Bench made the observations when
the Travancore royal family’s lawyer and senior
www.lawteller.com
 LEGAL UPDATES
advocate Krishnan Venugopal informed the court that APEX COURT ADVOCATES
there was a tantri’s report that Kallara B should not be ENACTMENT OF LEGISLATION TO
opened as it concerned a matter of faith. "The whole FILL GAP IN CONSTITUTION
purpose of this [inventory] is to bring sanctity and
Though so far the election commissioners (ECs)
transparency. No sentiments are violated by recording
appointed have been "outstanding people, very fair
an inventory. Tell us, what purpose is served if it
and politically neutral," there is still a legitimate
[Kallara B] is not opened," The Bench asked. Mr.
expectation that they should be selected through the
Subramanium told the court that an expert committee
"most transparent and just process" formalised in a
had already completed inventories of other temple
law enacted by Parliament, the Supreme Court advised
vaults, but was unable to complete the exercise
the Centre. The Bench pointed out that there is a
because it lacked access to the B vault. He said former
"gap" caused by the lack of a parliamentary law which
Comptroller and Auditor General Vinod Rai, who was
transparently spells out the process of appointment
appointed by the Supreme Court to audit temple
of an election commissioner . "Who should be
finances and records, had pointed out in his report that
shortlisted? Who shortlists these names? What is the
temple records showed this vault had been opened
eligibility? There is nothing to show the procedure
nine times in the past. "You [Mr. Subramanium] discuss
followed in selecting them," The Bench observed. The
the matter. We only want transparency," Chief Justice
Bench said that even the selection procedure of the
Khehar said. The court refused to order a separate
CBI Director is formalised by a written law, but not that
investigation into the case of eight missing diamonds
of Election Commissioners. The court was hearing a
used as part of Lord Padmanabhaswamy’s tilakam,
PIL petition filed by Anoop Baranwal, represented by
saying an FIR had already been registered in the case.
advocate Prashant Bhushan, contending that
It said fool-proof measures should be taken by the 200-
successive governments failed in the constitutional
strong contingent of police at the temple and no such
obligation to set up a "fair , just and transparent
incidents of theft should ever recur. The court recorded
process" for selection of ECs. "Though it is very
that V. Ratheeshan, an IAS officer, had been appointed
complimentary that outstanding people have been
Executive Officer of the temple on June 18. It took into
appointed so far, there is still a legitimate expectation
consideration the past tensions between the previous
in the Constitution that a law should be made on the
Executive Officer K.N. Satheesh and theAdministrative
selection process," the Chief Justice observed. "The
Committee and said a proper working arrangement
Election Commissioners supervise and hold elections
should be made in future. The court appointed the
in our democracy...such is the significance of their
Executive Officer as Member Secretary of the
office. Their selection has to be made in the most
Administrative Committee and said he should consult
transparent manner," he said. The court asked the
the committee on all policy decisions and work hand
government whether it should intervene in the issue
in hand with the committee. The court also agreed that
to achieve the constitutional objective under Article
a Financial Controller to audit the temple finances
324 (2). Solicitor General Ranjit Kumar submitted that
should be appointed from a shortlisted panel of three
the filtering of names of suitable persons for
officers from the Indian Audit and Accounts Services.
appointment as Election Commissioners is done under
The names would be forwarded by the State to the
the aegis of the Prime Minister and his Cabinet, who
Administrative Committee, which would make the final
in turn advise the President. "None other than the
choice.

www.lawteller.com September 2017 I Lawteller I 449

LEGAL UPDATES
Prime Minister is involved in the selection of the
election commissioners. Besides it is for Parliament to
decide whether there should be a law or not," Mr.
Kumar said. The PIL plea said the appointments were
made by the President solely on the basis of the advice
given by the political-executive at the Centre. This
situation allegedly gives "ample room for the ruling
party to choose someone whose loyalty is ensured
and renders the selection process vulnerable to
manipulations and partisanship which is violative of
Article 14 of the Constitution." The court posted the
case for final hearing.
JOBS SECURED WITH FORGED
CASTE PAPERS INVALID
Persons who secured government employment and got
academic admissions under reserved categories with
the help of forged caste certificates can have their jobs
and admission declared invalid, the Supreme Court
held on Thursday. A Bench of Ex-Chief Justice J.S.
Khehar and Justice D.Y. Chandrachud disagreed with
a Bombay High Court decision in 2014 that public
servants who got their jobs using fake caste certificates
and have spent considerable time in service can be
afforded protection. The High Court had said that such
persons could be allowed to keep their jobs. The
verdict came on a batch of petitions, including the one
filed by the Maharashtra government against the High
Court’s December 2014 judgment. The apex Court,
however, said the findings of its verdict would not be
made applicable with retrospective effect. The three-
judge Bench of the High Court had framed two
questions: "Whether the relief of protection of service
after invalidation of the caste claim can be granted by
the High Court" on the basis of a 2012 apex court
judgment; if the answer is ’yes,’ then can such relief of
protection of service be granted to them whose cases
have already been rejected by it. The High Court had
answered the first question in the affirmative and held
450 I Lawteller I September 2017
that mere invalidation of caste certificate would not
lead to cessation of service. "Mere invalidation of the
caste claim by the Scrutiny Committee would not entail
the consequences of withdrawal of benefits or
discharge from the employment or cancellation of
appointments that have become final," the HC had
concluded. There cannot be any straitjacket formula
laid down either to refuse or grant protection in the
employment either at the initial stage or at the
promotional stage, it had said. The approach has to
be practical and pragmatic rather than technical and
pedantic keeping in view the object and purpose of
the Constitution in providing the benefits and
concessions to a particular category of backward
class, the High Court had observed
WHY NOT USE VVPAT UNITS FOR
GUJARAT POLLS, EC ASKED
The Supreme Court questioned the Election
Commission on its reluctance to use voter verifiable
paper audit trail (VVPAT) units with electronic voting
machines for the Gujarat Assembly polls in 2017,
warning the poll panel against making excuses and
compelling the court to force its hand. "You have
about 87,000 machines. Why cannot you use them," a
Bench of Ex-Chief Justice of India J.S. Khehar and D.Y .
Chandrachud asked the commission. When counsel of
the panel replied that not all the 87,000 are functional
and some have "glitches", Justice Khehar said the
argument sounded like an excuse. "Don’t force us …
we can enforce our orders," the Bench warned, asking
the commission to give a reply in four weeks. The
hearing was based on a petition filed by Mohit Singh,
represented by counsel Kapil Sibal, appealing against
a Gujarat High Court order dismissing his plea to direct
the commission to implement the VVPAT voting
mechanism in the Gujarat polls or otherwise use ballot
papers to ensure a transparent, free and fair election.
"The Centre has given the Election Commission
www.lawteller.com

Rs. 3,000 crore to buy 1,50,000 machines … but now
they are saying it will take time to train people. Such
excuses cannot be made in a democracy. In Gujarat
polls, 71,000 machines are required for the election,"
Mr. Sibal said. He referred to the Supreme Court’s 2013
judgment in Subramanian Swamy vs Election
Commission of India, in which the court held that the
"paper trail is an indispensable requirement of free and
fair elections. The confidence of the voters in the EVMs
can be achieved only with the introduction of the
"paper trail". EVMs with VVPAT system ensure the
accuracy of the voting system." The execution of the
VVPAT concept would result in printed receipts of
what party the EVM machine has registered a vote for.
The said printed receipts would then ideally be
collected by the voters and subsequently dropped in
a ballot box. Therefore, the votes registered in the
EVM may then be tallied with the ballot papers
collected in the ballot box, thus, allowing the
commission to ascertain whether a recount is required
or not. Such printed receipts ensure that the voting is
carried out in a more transparent fashion and further
inspiring confidence in the election process
SC STAYS CATTLE SALE RULES
The Supreme Court stayed the Centre’s May 26
notification, banning cattle sale in livestock markets
for slaughter and religious sacrifices. The order came
after the government acquiesced that public outcry
and objections from the States about the law’s impact
on livelihoods made it realise that the rules need
"tweaking". Appearing before a Bench of Ex-Chief
Justice of India J.S. Khehar and Justice D.Y .
Chandrachud, Additional Solicitor- General P.
Narasimha chose his words carefully while saying the
government had received a "large number of
representations" that "certain aspects" of the
Prevention of Cruelty to Animals (Regulation of
Livestock Markets) Rules, 2017 and the Prevention of
www.lawteller.com
LEGAL UPDATES
Cruelty to Animals (Maintenance of Case Property
Animals) Act, 2017 were "troubling" and threw up
some "sensitive" questions about the Central rules.
"We realised that certain aspects need tweaking," Mr.
Narasimha submitted. The law officer however quickly
added that a re-look at the rules does not mean a
repeal. Mr. Narasimha sid the rules would be amended
keeping in mind the interests of the various stake-
holders, including the meat industry, and re-notified.
The law officer conveyed to the court that the
Secretary, Ministry of Environment and Forests, was
already working on the amendments to the rules and
they would be completed by August. Mr. Narasimha
apprised the Bench that the rules have already been
stayed by the Medurai Bench of the Madras High
Court in May last. The Centre submitted it was not
challenging the four-week stay order passed by the
High Court. The fact that the Madras High Court’s
stay order had lapsed on July 7 did not stop the
Supreme Court from endorsing it. "The directions of
the Madurai Bench shall extend through out the
country," the Supreme Court ordered. The court
however, did not agree with the Centre’s suggestion
that the States should meanwhile go forward with the
work of identifying animal market spaces within their
jurisdictions as per the existing rules.
SC REFUSES TO NULLIFY NEET
EXAM
The Supreme Court declined to "nullify" the National
Eligibility-cum-Entrance Test (NEET) 2017 exam, saying
it would affect over six lakh candidates who have
passed the test to join medical and dental courses. A
three-judge Bench said it would be "very difficult" to
disturb the results of NEET as around 6.11 lakh
candidates, out of a total of 11.35 lakh aspirants, have
cleared it and the counselling process was on. The
court refused to accept the submission of a counsel
appearing for some students that the level of difficulty
September 2017 I Lawteller I 451
LEGAL UPDATES
of questions set in regional and English were different, the dead must be given due respect," the Bench
and the exams need to be conducted afresh.Additional observed The court urged the country’s executive to
Solicitor General Maninder Singh, appearing for the give the NHRC the respect and dignity due to it.
Central Board of Secondary Education (CBSE),
opposed the contention. "The level of difficulty of
SC ORDERS CBI PROBE INTO
questions were the same in all the languages. We will
MANIPUR KILLINGS
put it in an affidavit. Around 1.4 lakh candidates have
given the exam in vernacular languages," Mr. Singh In a resounding blow to immunity for security and
submitted. The Bench asked the CBSE to file the armed forces personnel in disturbed areas under the
affidavit in three days. grip of the controversialArmed Forces (Special Powers)
Act, the Supreme Court ordered a time-bound CBI
probe into the deaths of over 80 civilians, allegedly
EVEN THE DIGNITY OF THE DEAD killed by police and armed forces in the north-eastern
MUST BE GIVEN DUE RESPECT State of Manipur during the heights of insurgency.
In a 26-page judgment, the Supreme Court throws open The Bench refused to entertain the Centre’s argument
how human rights and the National Human Rights that these crimes were "vintage" and there was no
Commission have suffered a slow death at the hands need to re-visit them. The government tried to placate
of the government and the State authorities. The court’s the court, saying the families of the victims were
discussion of how the neglect and stagnation suffered compensated for the loss of their loved ones and
by the NHRC has imperilled human rights in the nation nothing more needed to be done. The Centre justified
is part of a judgment on the ’fake encounter’ killings of the years of neglect or lack of investigation by the
Manipur, which did not see the light of day until the Manipur Police, blaming "local pressures" and the
families of victims approached the Supreme Court. The "ground situation" in the sensitive State. But the court
NHRC, which had investigated 20 of these deaths, was stood steadfast. Parents and families of the victims had
stonewalled for years by the authorities. So much so approached the court for answers in the cases of 1,528
that the Commission, which is actually headed by a persons finished off in what they termed as "extra-
former Chief Justice of India or judges of the Supreme judicial killings", allegedly committed by the police and
Court, had declared its own failure and termed itself a "personnel in uniform of the armed forces of the
"toothless tiger". The Bench discusses how the Union." the Bench said even the "dos and don’ts and
NHRC’s revised guidelines of 2010 makes magisterial the Ten Commandments of the Army Chief" accepts
inquiry into every police encounter death mandatory. the ethos and principle that use of excessive force or
The NHRC has to be informed of every encounter retaliatory force by uniformed personnel resulting in
death. However, these guidelines are given scant death necessitates a thorough enquiry . To the
respect by the States. In many States, human rights government’s stand that these "fake encounter" cases
commissions are obvious in their absence for years, were too old to be raked up, the court said, "if a crime
the court said. "The intention of the NHRC is to more has been committed, a crime which involves the death
effectively assist the criminal justice delivery system of a person who is possibly innocent, it cannot be
and avoid any factual controversies while respecting overlooked only because of a lapse of time." To the
human rights. It is not as if the dignity of only living Centre’s stand that the State bowed to local pressures,
persons needs to be respected. Even the dignity of the court replied that if there was a breakdown of law

452 I Lawteller I September 2017 www.lawteller.com


in Manipur, the Centre was obliged to step in. "Merely
because the State has not taken any action and has
allowed time to go by, it cannot take advantage of the
delay to scuttle an inquiry," the court held. Noting that
the court cannot shut its doors on the victims and
aggrieved families of those who suffered losses of life
and property,the court retorted that mere payment of
compensation cannot douse the pain and agony of the
kin of those who were killed. "This [compensation]
cannot override the law of the land. Otherwise all
heinous crimes would get settled through payment of
monetary compensation," the Bench observed. The
court noted how not a single FIR was registered
against any personnel of the Manipur police for all
these years
AADHAAR: 9-JUDGE BENCH TO
MERE POSSESSION OF NOTES NOT CONSIDER WHETHER PRIVACY IS A
ENOUGH IN GRAFT CASES BASIC RIGHT
Mere possession or recovery of currency notes from
a public official is not enough to substantiate that he
took a bribe, there has to be conclusive proof that he
did make a demand for illegal gratification in order to
find him guilty of corruption, the Supreme Court has
held. "In the absence of any proof of demand for illegal
gratification, the use of corrupt or illegal means or
abuse of position as a public servant to obtain any
valuable thing or pecuniary advantage cannot be held
to be proved," the Bench concluded in a recent
judgment. The judgment concerns a police officer in
Punjab who was convicted of taking a bribe of Rs. 2000
in 2009. The prosecution said he took the money as
illegal gratification to allegedly exonerate an accused,
Sarabjit Singh, another police officer, in a dowry
harassment case. The prosecution argued that
Mukhtiar Singh, who was the Station House Officer
at the Ajnala Police Station, even threatened Sarabjit
and the latter lodged complaint against the SHO with
the Vigilance department. A trap was set and Mukhtiar
Singh was allegedly caught having taken the money.
www.lawteller.com
LEGAL UPDATES
The trial court sentenced him to a year’s imprisonment
in the graft case. While the appeal was pending in the
Punjab and Haryana High Court, Mukhtiar Singh died.
His legal heirs continued the fight for him, but
eventually failed in the High Court, which confirmed
the sentence. The High Court had believed the
prosecution’s version that the SHO asked Sarabjit
Singh if he had brought the money, and this amounted
to a demand for payment of bribe. In the appeal, the
Supreme Court held that a mere stray question like that
did not confirm the accusation that Mukhtiar Singh had
demanded a bribe. Besides, none of the prosecution
witnesses could prove the date and time of the receipt
of the bribe.
A nine-judge Bench of the Supreme Court will hear the
question whether privacy is a fundamental human right
and is part of the basic structure of the Constitution.
The decision taken by a five-judge Constitution Bench
led by Ex-Chief Justice Khehar is on the basis of a
bunch of petitions contending that the Aadhaar
scheme, is a violation of the citizens’ right to privacy.
The petitioners have argued that right to privacy is
part of Article 21, the right to life, and interspersed in
Article 19, though not explicitly stated in the
Constitution. Two judgments of the Supreme Court -
the M.P. Sharma case verdict pronounced by an eight-
judge Bench in 1954 shortly after the Constitution came
into force in 1950 and the Kharak Singh case verdict
of 1962 by a six-judge Bench - had dominated the
judicial dialogue on privacy since Independence. Both
judgments had concluded that privacy was not a
fundamental or ’guaranteed’ right. Though smaller
Supreme Court Benches have, over the years, differed
and held that privacy is indeed basic to our
Constitution and a fundamental right, the arithmetical
September 2017 I Lawteller I 453
LEGAL UPDATES
supremacy of the MP Sharma and Kharak Singh cases
continues to hold fort. Now, by forming a Bench of
nine judges, Chief Justice Khehar’s Supreme Court has
decided to determine once and for all whether privacy
is negotiable or not. The nine-judge Bench seeks to
bring a quietus to the divergent judicial
pronouncements of the past.
SC MENTALLY RETARDED ADULT
NOT A CHILD
A "mentally-retarded" adult cannot be considered a
child and given refuge under the Protection of Children
from Sexual Offences Act of 2012, the Supreme Court
held. The case before the court was that of a rape
victim, whose biological age is 38 though medical
reports conclude that her "mental age" is that of six-
year-old. The woman’s mother had moved the Supreme
Court to expand the definition of the term ’child’ in
Section 2 (d) of the POCSOAct to embrace adults who
are "mentally-retarded or extremely intellectually-
challenged." The mother’s petition said the biological
age of a person should not be the governing yardstick
for POCSO, which seeks to protect children from sexual
abuse, treat them with fragility and provide them gentle
care throughout the criminal trial and swiftly punish
the guilty. The victim’s mother, based in Delhi, said any
person, even an adult, who is incapable of
understanding what is happening to her, is equal to a
child.
SC FOR PANELS T O EXAMINE
DOWRY CASES
Committees of social workers, homemakers, retired
persons and other upstanding citizens will form the
vanguard against frivolous complaints of dowry
harassment in their localities. They will sift the genuine
cases from the trivial ones. No suspect shall be arrested
in a dowry case immediately after a complaint is
454 I Lawteller I September 2017
registered. Police and the courts will have to wait for
the committee’s inquiry report. The Supreme Court on
Thursday ordered the setting up of ’family welfare
committees’ in all districts under the aegis of the
National Legal Services Authority (NALSA). A Bench
of Justices A.K. Goel and U.U. Lalit said Section 498A
(dowry harassment) of the IPC had come under much
abuse. Dowry complaints were being filed in the heat
of the moment over trivial issues. The three-member
family welfare committees will be set up by the district
legal services authorities. Members can be appointed
from para legal volunteers, social workers, retired
persons, "wives of working officers" and other
citizens. Every complaint received by the police and
the Magistrate will be passed on to the local
committee, which will enquire into the genuineness of
the complaint and file a report with the police official
or Magistrate concerned within a month. The
committee can directly get in touch with the parties
involved, but the members will not be called as
witnesses in case there is a trial. Till the report of the
committee is received, no arrest should normally be
effected, the court said. Trial judges should close
Section 498A cases based on matrimonial disputes
once parties reached a settlement. In fact, bail should
be given the same day, the court directed. Committees
of social orkers, homemakers, retired persons and other
upstanding citizens will form the vanguard against
frivolous complaints of dowry harassment in their
localities. They will sift the genuine cases from trivial
ones. The Supreme Court ordered the setting up of
’family welfare committees’ in all districts under the aegis
of the National Legal Services Authority. The three-
member family welfare committees will be set up by the
district legal services authorities. Members can be
appointed from para legal volunteers, social workers,
retired persons, "wives of working officers" and otehr
citizens.
ooooooo
www.lawteller.com

COMPLAINANT’S DEPOSITION MUST SHOW
SUFFICIENT GROUNDS FOR ISSUE OF PROCESS
C FL CAPITAL FINANCIAL SERVICES LTD. (THE
COMPLAINANT-respondent company)
borrowed a sum of Rs. 900 lakhs comprising Rs. 180
lakhs through cash credits from the consortium of
Banks (of which the State Bank of Travancore was
the lead bank) and a sum of Rs. 720 lakhs being
working capital demand Loan. Due to non-payment
of the loan amount, the account became Non-
Performing Asset. In order to recover the amount
against the borrower, the State Bank of Travancore
filed OA No. 96 of 2003 before the Debts Recovery
Tribunal (DRT), Mumbai. On 22.07.2005, the DRT
passed a partial decree awarding a sum of Rs. 812.26
lakhs with 12 per cent interest.
On 29.03.2006, the State Bank of Travancore assigned
the debts due from the complainant-Company to the
Kotak Mahindra Bank together with all the securities
through an Assignment Deed. On 11.01.2007, the
borrower-the respondent Company assigned to
Kotak Mahindra Bank the debt due towards it from
one Ravishankar Industries Pvt. Ltd. of more than Rs.
32 crores with an agreement that any excess recovery
over and above Rs. 90 lakhs from Ravishankar
Industries Pvt. Ltd. would be shared equally between
the Kotak Mahindra Bank and the complainant-
Company. It is pertinent to mention here that the fact
of the alleged Assignment Deed came to the notice
of the complainant-Company only on 17.01.2007 when
the Kotak Mahindra Bank handed over a copy of the
application for substituting themselves in place of
State Bank of Travancore to the respondent-Company.
The Kotak Mahindra Bank initiated process for
substituting its name in place of the assignor-State
Bank of Travancore in the recovery application and
also withdraws two criminal complaints filed by the
respondent-Company against Ravishankar Industries
www.lawteller.com
BUSINESS
Pvt. Ltd. without any information to the respondent-
Company. On 28.04.2007, the Kotak Mahindra Bank
moved an application before the Recovery Officer-I
for appropriating Rs. 67.5 lakhs due towards the
complainant-Company, being 50 per cent of the
amount of Rs. 135 lakhs received in excess of Rs. 90
lakhs from the Ravishankar Industries Pvt. Ltd.,
against the claim towards the State Bank of
Travancore.
On 16.05.2007, the complainant-respondent Company
filed a complaint against the Kotak Mahindra Bank
and its officers being No. 18/SW/07 before the
Metropolitan Magistrate, Bandra, Mumbai under
Sections 409, 418, read with 120-B of the Indian Penal
Code, 1860 (in short ’the IPC’). On 25.06.2007, the
Additional Chief Metropolitan Magistrate, Bandra,
Mumbai issued process against all the accused in the
complaint dated 16.05.2007. The accused therein
preferred Criminal Revision Applications being Nos.
1024-1026 of 2007 before the Court of Sessions for
Greater Bombay. Learned Additional Sessions Judge,
vide order dated 03/05.04.2008, allowed the revision
applications while setting aside the order of issue of
process dated 25.06.2007.
A fresh complaint being No. 0800009/SW/08 was filed
by the complainant-the respondent Company before
the Additional Chief Metropolitan Magistrate, 8th
Court, Esplanade, Mumbai under Sections 409, 418,
423 and 425 read with Section 120-B of the IPC
against the State Bank of Travancore, Kotak
Mahindra Bank Limited and its officers. The
Metropolitan Magistrate, I/C ACMM, 8th Court,
Esplanade, Mumbai, vide order dated 25.01.2008,
issued process against the officers of the State Bank
of Travancore and Kotak Mahindra Bank Limited. On
11.05.2008, learned Magistrate excluded the officers
September 2017 I Lawteller I 455
BUSINESS
of the Kotak Mahindra Bank Limited in view of an
application filed by the respondent-Company to
withdraw the complaint against them.
Being aggrieved, the appellants herein preferred a
Criminal Writ Petition being No. 1279 of 2010 before
the High Court. On 07.01.2011, learned single Judge
of the High Court, dismissed the writ petition filed
by the appellants herein for setting aside the order
of issue of process by learned Magistrate dated
25.01.2008 against the appellants.
Aggrieved by the order dated 07.01.2011, the
appellants have preferred this appeal by way of
special leave.
The Supreme Court accepted the appeal. The
complaint against the present appellants was
accordingly quashed.
The operative part of the judgment reads as under:-
The respondent-Company came to know about the
Assignment Deed dated 29.03.2006 only on
17.01.2007 when the Kotak Mahindra Bank moved
an application for substituting themselves in place
of State Bank of Travancore on the basis of that
alleged document i.e. Assignment Deed dated
29.03.2006. Neither the State Bank of Travancore
nor the Kotak Mahindra Bank informed the
respondent-Company regarding the alleged
Assignment Deed either before or after the alleged
assignment. It is also on record that vide agreement
dated 01.10.1999, the Kotak Mahindra Bank, which
was earlier a financial services Company, entered
into an agreement with the respondent-Company to
act as an advisor and to provide necessary assistance
for the successful restructuring of the respondent-
Company and to provide follow up and support
services to the complainant-Company in recovery
from its various defaulters.
TTTTTTT
Under the above terms and conditions, when the
456 I Lawteller I September 2017
Kotak Mahindra Bank was already in an agreement
with the respondent-Company in order to safeguard
its interest, the fact of the Assignment Deed between
the State Bank of T ravancore and the Kotak
Mahindra Bank with regard to alleged rights of the
State Bank of T ravancore per taining to the
immovable properties allegedly mortgaged in its
favour, must be communicated by the State Bank of
Travancore to the respondent-Company. More so, the
fact of such assignment deed must also be brought
to the notice by the Kotak Mahindra Bank to the
respondent-Company when it was responsible to
provide necessary assistance to the respondent-
Company.
TTTTTTT
Assignment Deed dated 29.03.2006 specifically
contains one clause which requires that the clients
and other related persons shall be informed about
the alleged Assignment. But this fact was not brought
to the notice of the respondent-Company. Primarily,
it was the duty of the State Bank of Travancore to
inform the respondent-Company about the said
assignment and secondly, Kotak Mahindra Bank was
to inform the same to the respondent-Company. If the
intention of the Assignor and the assignee to the
Assignment Deed dated 29.03.2006 was clear, then
why the facts of the same were not brought to the
notice of respondent-Company that too when Clause
2.3 of the Assignment Deed very clearly states so.
TTTTTTT
Even after the alleged assignment, in a proceeding
before the appellate tribunal, none of the
representative of the S tate Bank of T ravancore
mentioned about the factum of such assignment. The
respondent-Company came to know about the
alleged Assignment after a lapse of 9 months i.e. on
17.01.2007, when an application was moved by the
Kotak Mahindra Bank for substituting its name in
place of State Bank of Travancore. In the absence of
such knowledge, on 11.01.2007, the respondent-
www.lawteller.com

Company entered into a deed of Assignment with the
Kotak Mahindra Bank wherein all the dues of a
defaulter, viz., Ravishankar Industries Pvt. Ltd., of
more than Rs. 32 crores were assigned to the Kotak
Mahindra Bank. The Kotak Mahindra Bank was
under an obligation to inform the respondent-
Company about the earlier Assignment Deed which
was not done. More so, the Kotak Mahindra Bank
received a sum of Rs. 225 lakhs in March 2007 from
Ravishankar Industries Pvt. Ltd. but without giving
any information as to the terms of settlement and the
mode of payment to the complainant-Company ,
approached the Recovery Officer-I for appropriating
the same.
TTTTTTT
There is no denying the fact that both the appellants
were responsible for day to day functioning of the
State Bank of Travancore. Furthermore, admittedly,
appellant No.1 was in employment of the State Bank
of Travancore at the time of the execution of the deed
of assignment and the appellant No.2 was the
signatory to it. On a bare perusal of the complaint,
it creates an iota of doubt as to why the respondent-
BUSINESS
Company was kept in dark by the State Bank of
Travancore at the time of alleged Assignment Deed
dated 29.03.2006.
TTTTTTT
However, from the admitted position, it is evident that
the complainant-respondent Company in its wisdom
had withdrawn the complaint against the two
persons, who were the officers of the Kotak Mahindra
Bank Ltd. from a common complaint made against
four persons. However, we do not find any reason as
to why the remaining two persons, being the present
appellants, who were the officers of the State Bank
of Travancore at the r elevant time, ar e being
prosecuted. Hence, the complaint against the present
appellants does not survive and in the interest of
justice the same is liable to quashed and is
accordingly quashed.
TTTTTTT
Authorities relied upon : 1979 (4) SCC 396.
Reference : Supreme Court. K. Sitaram & Anr. v. CFL
Capital Financial Service Ltd. & Anr., Criminal Appeal
No. 2285 of 2011.
—————

µ GLOBAL GLIMPSE µ

EL SALVADOR STRIKES DOWN PART OF FAMILY CODE PERMITTING CHILD

MARRIAGE
The El Salvador Legislative Assembly unanimously voted to eliminate a law that allowed men to marry minors
that they had impregnated. The legal age to marry in El Salvador was 18 even before this change. But, a 23-
old exceptional rule allowed those under 18 to wed with parental consent. That exception has been widely
abused, particularly in rural areas, where families have been marrying off daughters to their alleged rapists
with an intention to protect the "family honor", and so that the girl would not have to care for the child on
her own. The exception also protected rapists and other sex offenders from criminal prosecution. This change
leaves the legal age of consent intact at 18, but strikes down the exception that allowed these "honor
marriages". According to El Salvador government data, there are more than 22,000 minors who are married or
co-habiting. UNICEF welcomed the change stating that the "reform is an important element to begin to generate
a change of conduct ... This is a cultural question that has roots in the discriminatory, patrimonial practices
facing girls" in El Salvador.

www.lawteller.com September 2017 I Lawteller I 457

GENERAL
RIGHTS AS AN HEIR TO CLAIM SHARES DEPEND
ON THE LAW IN FORCE, ON THE DAY WHEN
SUCCESSION OPENED
I N ORDER TO PROPERLY ANSWER THE LEGAL ISSUES, IT IS NECESSARY TO SET OUT THE FAMILY
GENEALOGY TREE:
GENEALOGICL TREE
Late Perummal Naidu (died in 1924)

Late Subbammal Late Lakshmi Ammal Late Pappu Ammal

(1st Wife) (2nd Wife) (3rd Wife)

Late Muthuammal
(daughter)
Late Alamelu Ammal Ramanujatha No Child
(daughter) Ammal (Defendant)
(Died in 1987) (daughter) (died in 2004)

Late Andal Late Vijayalakshmi

Ammal (daughter)
(daughter) (died as minor)

Seetharama Naidu Late Sagunthala

(son) (daughter)
(Plaintiff No.1) (Plaintiff No. 2)

As would be clear from the family tree, the original ancestor of the family was one male Hindu - Perumal
Naidu. He owned extensive immovable properties situated in Thenkarai Esanur, Thiruvaikur Vattam,
Nagapattinam Taluk in State of Tamil Nadu. The details of the properties held by Perumal Naidu are set out
in the plaint and would hereafter be referred to as "suit properties".
Perumal had three wives-Subbammal, Lakshmi Ammal and Pappu Ammal. Out of the first marriage with
Subbammal, one daughter was born - Muthammal. Out of the wedlock of Muthammal, two daughters-Andal
Ammal and Vijayalakshmi were born. Vijayalakshmi, however, died during her minority. Out of the wedlock of

458 I Lawteller I September 2017 www.lawteller.com


Andal Ammal, one son-Seetharama Naidu (plaintiff
No.1) and a daughter- Sagunthala (plaintiff No. 2)
were born.
Out of Perumal Naidu’s second marriage with Lakshmi
Ammal, two daughters were born-AlameluAmmal and
Ramanujatha Ammal (defendant). Both did not have
any issue. Alamelu Ammal died in 1987 whereas
Ramanujatha Ammal died in 2004. So far as Perumal
Naidu’s 3rd wife-Pappu Ammal is concerned, she died
issueless.
On 27.12.1923, Perumal Naidu executed a Will and
bequeathed his immovable and movable properties
including the suit properties to his heirs such as, his
3rd wife, two daughters from second wife, his
granddaughters from first wife and his son-in-law. The
Will specified the extent of properties bequeathed to
each heir named above. Soon after the execution of
the Will, Perumal Naidu died in the 1924.
The execution of the Will by Perumal Naidu gave rise
to litigation amongst his heirs. One suit being Civil
Suit No.13/1924 was filed by his two daughters-
Alamelu Ammal and Ramanujatha Ammal. Since both
the daughters were minor, therefore, the suit was filed
through their local guardian - one Gopalsami Naidu.
In the suit, the challenge was made to the legality and
validity of the Will executed by Perumal Naidu
including the extent of properties bequeathed to the
plaintiffs. According to the plaintif fs, they were
entitled to receive more shares in the properties left
by their father - Late Perumal Naidu than what was
bequeathed to them in the Will. In this suit, Andal
Ammal-grand-daughter of late Perumal Naidu, who is
the mother of the plaintiffs of this litigation was one
of the defendants.
Vide judgment/decree dated 15.09.1925, theTrial Court
dismissed the suit. It was, however, held that the Will
executed by Perumal Naidu in favour of his several
heirs was a valid Will. The plaintiffs, felt aggrieved,
www.lawteller.com
GENERAL
filed appeal being First Appeal No. 284/1925 but it was
dismissed. The plaintiffs then filed second appeal,
which was also dismissed. This litigation ended
finally as no further appeal was filed by the plaintiffs
after the decision of the High Court in S.A. No. 234
of 1925.
On 29.07.1957, two daughters of Perumal Naidu from
his second wife- Alamelu Ammal and Ramanujatha
Ammal effected partition between them in relation to
the properties which they had received by Will from
their late father. Both also got their name mutated in
the revenue records as owner in respect of their
respective shares.
On 01.10.1987, Alamelu Ammal-daughter of Perumal
Naidu executed a Will of her property and bequeathed
its some portion to her sister-Ramanujatha Ammal
and the remaining to the appellant herein. Alamelu
Ammal, however, died soon after execution of theWill
on 29.10.1987.
Ramanujatha Ammal-another daughter also executed
a Will dated 25.11.1987 of her share, which consisted
of some properties received by her from her father
and remaining from her sister -AlameluAmmal by Will
.By her Will, she bequeathed her properties to the
appellant herein and others.
It is with the aforementioned factual background,
second round of litigation began between the
surviving heirs of Late Perumal Naidu out of which
the present appeal arises.
The second round of litigation with which we are
concerned here was initiated by two heirs, i.e., great-
grandson and the great-granddaughter of late
Perumal Naidu- Seetharama Naidu and Sagunthala-
son/daughter of Andal Ammal, who is the daughter
of Muthammal, who, in turn, is the daughter of
Perumal Naidu from his first wife Subbammal.
On 15.12.1987, Seetharama Naidu and Sagunthala
served a legal notice to Ramanujatha Ammal. Though
September 2017 I Lawteller I 459
GENERAL
in the notice, no legal basis was mentioned and nor
any specific share in the suit properties was
demanded and nor any factual foundation was laid
as to how and on what basis, the notice was being
sent demanding share in the properties held by
Alamelu Ammal and Ramanujatha Ammal except
stating therein that they were entitled to claim right,
title, interest and share in the properties received by
Ramanujatha Ammal from her late father and sister-
Alamelu Ammal. In other words, according to them,
the properties received and possessed by
Ramanujatha Ammal had devolved on them by
succession on the death of Alamelu Ammal in 1987
but did not devolve on Ramanujatha Ammal because
they were heirs through father’s side. Ramanujatha
Ammal, on receipt of notice, denied the claim by
sending her reply on 23.12.1987.
Seetharama Naidu and Sagunthala then filed a suit
being Civil Suit No. 26/1988 on 23.03.1988 against
Ramanujatha Ammal. The suit was for a declaration
of their title and for possession in relation to the suit
properties. In substance, the plaintiffs’ case was that
the defendant and her late sister-Alamelu Ammal had
only life interest in the properties which she had
received from their late father Perumal Naidu through
Will and hence on the death ofAlamelu Ammal in 1987,
the properties held by her devolved on the plaintiffs
as reversioners by succession through Perumal
Naidu’s first wife as father’s heirs. It was averred that
disposition made by Alamelu Ammal of her share by
Will executed in favour of her sister- Ramanujatha
Ammal was of no avail because Alamelu Ammal
herself had life interest in the properties and,
therefore, such properties could not be bequeathed
by her through Will to the defendant. It was averred
that her property could not be devolved on the
defendant also by succession but could only be
devolved in favour of the plaintiffs as father’s heirs
(reversioners).
460 I Lawteller I September 2017
The defendant filed her written statement and denied
the plaintiffs’ claim. According to her, the Will
executed by Perumal Naidu (her father) conferred
"absolute interest" on the defendant and her sister-
Alamelu Ammal in the suit properties and not the "life
interest" as contended by the plaintiffs. It was also
contended that since the defendant and her sister
Alamelu Ammal, got "absolute interest" in the
properties, Alamelu Ammal was, therefore, competent
to transfer her share in any manner to anyone and
which she did by executing the Will in defendant’s
favour. It was also contended that on the death of
Alamelu Ammal in 1987, her share did not devolve
on the plaintiffs as heirs of Perumal Naidu but it
devolved upon the defendant by virtue of two Wills-
one executed by her father Perumal Naidu and the
other executed by her sister-Alamelu Ammal.
The Trial Court, vide judgment/decree dated
16.06.1994 dismissed the suit. It was held thatAlamelu
Ammal and defendant had "absolute interest" in the
properties received by them by Will from Perumal
Naidu. It was also held that the plaintiffs failed to
prove that the defendant or/and Alamelu Ammal had
only life interest in the properties. It was also held
that since the plaintiffs’ mother Andal Ammal (who
was grand-daughter of Late Perumal Naidu) also got
one share along with the defendant and others in the
properties through same Will of Perumal Naidu and
she having enjoyed "absolute interest" of her share
like other heirs, had no right to challenge the Will nor
the plaintiffs, who are her son and daughter, had any
right to challenge the Will. It was held that it was more
so when Andal Ammal was party to the earlier civil
suit, she was bound by the findings recorded in the
said suit.
The plaintiffs, felt aggrieved, filed first appeal being
A.S.No. 124/1994 before the District Judge. By
judgment dated 14.08.1995, the District Judge
dismissed the appeal and affirmed the judgment/
www.lawteller.com
 GENERAL
decree of the Trial Court. aside the judgement of the High Court and that
The plaintiffs, felt aggrieved, filed Second Appeal No. judgement of trial court was restored resulting in
873/2003 before the High Court. During the pendency dismissal of the suit filed by the plaintiff.
of the second appeal, the defendant passed away on
29.07.2004. The plaintiffs filed C.M.P. No. 8691 of 2006
The operative part of the judgment reads as under:-
before the High Court to implead the appellant herein The High Court was right in upholding all the
as respondent in the second appeal as legal findings of fact of the two courts below but was not
representatives of the defendant. By its order dated right in relying upon Section 15(2)(a) of the Act for
25.04.2012, the High Court brought the appellant allowing the plaintiffs’ second appeal by treating
herein as respondent to represent the estate of the them to be Class I heirs from father’s side and, in
respondent (defendant). consequence, was also not right in decreeing the
plaintiffs’ suit in part by granting 1/3rd share to each
By impugned judgment, the High Court interfered in
plaintiff in the suit property. This finding, as held
the judgment/decree of the two courts below, allowed
above, is legally unsustainable and hence deserves
the appeal in part and while setting aside the
to be set aside.
judgment, decreed the suit in part. The High Court,
TTTTTTT
however, upheld the concurrent findings of the two
Schedule in relation to Class I heirs was amended
Courts below and held that the Will executed by
by the Parliament by Act 39/2005 w.e.f. 9.9.2005. By
Perumal Naidu in favour of his two daughters
this amendment, four new categories of heirs, namely,
conferred "absolute interest" in the properties and
(1) son of a pre-deceased daughter of a pre-deceased
not the "life interest" as claimed by the plaintiffs. The
daughter; (2) daughter of a pre-deceased daughter
High Court then proceeded to place reliance on
of a pre-deceased daughter; (3) daughter of a pre-
Section 15 (2) (a) read with Section 8 and Schedule
deceased son of a pre-deceased daughter; and (4)
appended to the Hindu Succession Act, 1956
daughter of a pre-deceased daughter of a pre-
(hereinafter referred to as "the Act") and held that
deceased son, were included in the categories of
since the plaintiffs are son and daughter of a pre-
Class I heirs.
deceased daughter of a pre-deceased daughter and
TTTTTTT
are class I heir as specified in the Schedule and
The High Court rightly upheld all the material
hence by virtue of Section 15(2)(a) which has
findings of the two courts below but committed one
overriding effect on those categories of the heirs
legal error when it placed reliance on Section
specified in sub-section (1), would be entitled to claim
15(2)(a) read with Schedule appended to the Act for
1/3rd share in the suit properties along with
granting relief to the plaintiffs and by recognizing
defendant, i.e., plaintiff No. 1 would be entitled to get
their right in the suit properties against the
1/3rd, plaintiff No. 2 would be entitled to get 1/3rd,
defendant. This finding of the High Court is bad in
i.e., both would get 2/3rd share whereas the defendant
law.
would be entitled to get 1/3rd in relation to the
TTTTTTT
properties specified in schedule ’A’ ( except one item).
The High Court was not right in placing reliance on
Against this judgment of the High Court, the Section 15 of the Act for deciding the rights of the
defendant felt aggrieved and filed special leave parties. It is for the simple reason that the category
petition. The Supreme Court accepted the appeal, set of heirs to which the plaintiffs had belonged, namely,

www.lawteller.com September 2017 I Lawteller I 461

GENERAL
"son of a pre-deceased daughter of a pre-deceased
daughter and daughter of a pre-deceased daughter
of a pre-deceased daughter" was added in the
Schedule (class I) only with effect from 9.9.2005 by
amendment by Act No. 39 of 2005.
TTTTTTT
The plaintiffs, therefore, were not entitled in law to
take the benefit of the aforesaid amendment because
even according to them, their right to claim the share,
if any, in the suit properties held by Alamelu Ammal
accrued on the death of Alamelu Ammal in 1987 and
they filed civil suit in the year 1988.
TTTTTTT
The plaintiffs’ rights as an heir to claim shares in the
suit properties had to be worked out on the basis of
law in force on the date (1987), i.e., when succession
opened for them to enforce such right and when they
filed the suit (1988).
TTTTTTT
The category of an heir to which the plaintiffs
belonged was not included in class I list in the
Schedule in 1987 but it was so included for the first
time on 09.09.2005 by Act 39/2005. In this view of
the matter, the plaintiffs had no right on the strength
of succession/devolution to claim any interest in the
properties of Alamelu Ammal in 1987 as father’s heir.
TTTTTTT
It is not in dispute that the Courts below
concurrently held and, in our view , rightly that
Perumal Naidu bequeathed his properties to all his
heirs including his two daughters by conferring on
them "absolute interest" and not the "life interest"
in the properties.
TTTTTTT
One cannot dispute a legal proposition that once a
heir becomes the absolute owner of the property by
virtue of a Will then as a necessary consequence, he/
she is entitled to alienate such property by any mode
permissible in law to anyone.
TTTTTTT
Authorities relied upon :
Reference : Supreme Cour t. Karunanidhi v.
Seetharama Naidu & Ors., Civil Appeal No. 4490 of
2017 (Arising out of SLP (C) No.22148/2013) [From
the Judgment and Order dated 26.07.2012 of the High
Court of Judicature at Madras in S. A. No. 873 of
2003].
—————

µ GLOBAL GLIMPSE µ

FEDERAL APPEALS COURT RULES MILITARY JUDGE SHOULD HAVE

RECUSED HIMSELF IN 9/11 CASE
The US Court of Appeals for the District of Columbia Circuit ruled that Judge Scott Silliman should have
recused himself in a case concerning multiple defendants who were charged with aiding in the 9/11 attacks.
The petitioner, Khalid Sheikh Mohammed, argued that Silliman was biased in the matter and cited a 2010
comment in which Silliman called Mohammad and his co-defendants the major conspirators in the 9/11 attacks.
The court found that because Silliman "expressed an opinion that Petitioner is guilty of the very crimes of
which he is accused", he manifested an "apparent bias" and thus should have recused himself. The court
granted the petition asking the court to recuse Silliman and vacated a decision by the United States Court of
Military Commission to reinstate charges for attacking civilians and destroying property in violation of the
law of war against Mohammad and his co-defendants.

462 I Lawteller I September 2017 www.lawteller.com


CLAIMANT UNDER MOTOR VEHICLES ACT,
MUST APPROACH TRIBUNAL WITHIN
REASONABLE TIME
T HE DAUGHTER OF THE RESPONDENTS DIED
IN A MOTOR accident on 02.02.1977. A claim
petition was filed, under Section 166 of the Motor
Vehicles Act, 1988 (hereinafter referred to as ’the 1988
Act’), seeking compensation on account of the motor
accident, wherein the respondents’ daughter had
died, on 23.02.2005 i.e., after a period of more than 28
years. The Motor Accident Claims Tribunal
(hereinafter referred to as ’the Tribunal’) entertained
the above claim. A prayer made to reject the claim
petition, for the reason, that the said claim had been
raised 28 years after the accident in question, was
rejected. It is in these circumstances, that M/s Purohit
and Company (the petitioner herein) approached the
High Court, wherein, the matter was re-adjudicated.
Again, a prayer was made at the hands of the
petitioner, that the claim had been made belatedly, and
was not a surviving claim. The High Court, upheld
the justiciability of the claim petition, on the short
ground, that no period of limitation had been
provided for raising a claim for compensation, under
the Motor Vehicles Act, 1988.
The judgment rendered by the High Court on
07.07.2015, has been assailed by M/s Purohit &
Company through the instant petition for special
leave to appeal. The Supreme Court set aside the
impugned order dated 7.7.2015 and allowed the
instant appeal by holding that the claim raised by the
respondent before the motor accident tribunal was
nor surviving claim, when the respondents
approached the said Tribunal.
The operative part of the judgment reads as under:-
The solitary contention advanced at the hands of the
www.lawteller.com
GENERAL
learned counsel for the appellant was, that even
though there may no longer be a defined period of
limitation, for approaching the Motor Accident
Claims Tribunal, to raise a claim for compensation
(under the provisions of the Motor Vehicles Act,
1988), yet a claimant must approach a Court, for
raising such a claim within a reasonable time. It was
submitted, that after a period of time, the claim would
be stale and will have to be treated as a dead claim.
Such a claim, it was submitted, could not be treated
as a surviving claim.
TTTTTTT
A claim raised before the Motor Accident Claims
Tribunal, can be considered to be genuine, so long
as it is a live and surviving claim. We are satisfied in
accepting the declared position of law, expressed in
the judgments relied upon by the learned counsel for
the appellant. It is not as if, it can be open to all
and sundry, to approach a Motor Accident Claims
Tribunal, to raise a claim for compensation, at any
juncture, after the accident had taken place. The
individual concerned, must approach the Tribunal
within a reasonable time.
TTTTTTT
The question of reasonability would naturally
depend on the facts and circumstances of each case.
A delay of 28 years, even without reference to any
other fact, cannot be considered as a prima facie
reasonable period, for approaching the Motor
Accident Claims Tribunal.
TTTTTTT
Undoubtedly, the claim (pertaining to an accident
which had occurred on 02.02.1977), in the facts and
circumstances of the instant case, was stale, and
September 2017 I Lawteller I 463
GENERAL
ought to have been treated as a dead claim, at the
point of time, when the respondents approached the
Tribunal by filing a claim petition, on 23.02.2005.
TTTTTTT
It is relevant to notice, that by a motion bench order
dated 14.09.2015, the appellant herein was directed
to deposit a sum of Rs.25,000/- towards litigation
expenses, payable to the respondents. The aforesaid
deposit was actually made (as has been noticed, in
the motion bench order, dated 12.07.2016). Since
the deposit was made, and was payable to the
respondents, we consider it just and appropriate, in
the facts and circumstances of this case, to direct the
Registry of this Court, to transmit the aforesaid
amount of Rs.25,000/- to the respondents.
TTTTTTT
Authorities relied upon : 2003 (Suppl. 1) SC 273.
Reference : Supreme Court. M/s Purohit and
Company v. Khatoonbee and Anr., Civil Appeal No.
2555 of 2017 [Arising out of SLP (C) No. 25760 of
2015].
—————

µ GLOBAL GLIMPSE µ

OREGON GOVERNOR SIGNS BILLEXPANDING COVERAGE OFABORTIONS

AND BIRTH CONTROL
Oregon Governor Kate Brown signed a bill into law that expands access to abortions and birth control. The
bill prohibits health benefit plans from imposing a deductible, coinsurance, copayment or any other cost
sharing requirements on services such as abortions or birth control. Additionally, the bill allows state funds
to be used to provide reproductive healthcare to non-citizens who are not eligible for Medicaid. There is an
exception that allows employers to exclude coverage for abortions or contraceptives that are contrary to
their religious beliefs. However, the employer must notify all of their employees in writing of all of the procedures
that are not covered due to their religious objections. The provisions included in the bill were set to take
effect immediately upon its passage.

ILLINOIS GOVERNOR SIGNS LEGISLATION REMOVING STATUTES OF

LIMITATIONS ON SEXUAL ABUSE CRIMES
Illinois Governor Bruce Rauner signed SB 189 removing the statutes of limitations on certain sexual abuse
crimes. The legislation amends chapter 38, sections 3-6, of the Illinois Criminal Code to eliminate a time guard
for reporting felony sex crimes and sex crimes against children. Under the previous code a victim of these sex
crimes had to report the crime within 20 years of reaching age 18. The statute now reads, "When the victim
is under 18 years of age at the time of the offense, a prosecution for criminal sexual assault, aggravated
criminal sexual assault, predatory criminal sexual assault of a child, aggravated criminal sexual abuse, or felony
criminal sexual abuse may be commenced at any time…". The stricken language above expands the time
period and circumstances under which a prosecution for sex crimes can commence. Some of the crimes covered
by the bill include child pornography, solicitation for a juvenile prostitute, promoting juvenile prostitution,
criminal sexual assault, and sexual conduct toward minors. The legislation takes immediate effect.

464 I Lawteller I September 2017 www.lawteller.com

 GENERAL
PRINCIPLE OF RES JUDICATA, DOES NOT APPLY
IN BAIL APPLICATION

The operative part of the judgment reads as under:-

R ANI DUDEJA (THE APPELLANT)
APPROACHED THE HIGH Court with a petition
under Section 438 of the Cr.P.C. By the impugned
order dated 7.3.2017, the petition was rejected on the
ground that the appellant had filed a petition earlier
and the same had been withdrawn and, therefore, the
appellant cannot be allowed to re-agitate the matter
on merits.
Against the judgement of the High Court special leave
petition as filed. The Supreme Court accepted the
appeal, set aside the order dated 7.3.2017. The matter
was directed to be posted before the appropriate
Court on 3.4.2017 for consideration in accordance
with law.
We are afraid, the stand taken by the High Cour t
cannot be appreciated. The petition was for
anticipatory bail and the one which had been filed
earlier might have been withdrawn in a given
situation, without inviting the Court to consider the
same on merits. On change of circumstances, when
another application under Section 438 Cr.P.C. was
filed, the High Court should have considered the
same on merits. The principle of res judicata could
not have operated in an application for bail.
TTTTTTT
Reference : Supreme Court. Rani Dudeja v. State of
Haryana, Criminal Appeal No. 615 of 2017 [@ Special
Leave Petition (Crl) No. 2406 of 2017].
—————

µ GLOBAL GLIMPSE µ

MYANMAR PARLIAMENT AMENDS SPEECH-RESTRICTING

TELECOMMUNICATIONS LAW
Myanmar’s parliament amended the 2013 Telecommunications Law amidst growing concerns regarding the
freedom of expression. The new law permits judges to release people on bail, allows only those directly
affected, or with permission from those directly affected, by the offense to press charges, and reduces the
maximum prison sentence to two years. However , many in opposition of the law say that the amendments do
little to reduce the restrictions on speech. Clause 66(d) of the law prohibits the "extorting, coercing, restraining
wrongfully, defaming, disturbing, causing undue influence or threatening to any person by using any
Telecommunications Network". Under this clause, journalists have been arrested, such as activist Maung
Daung Kha who was imprisoned for six months for defamation. According to Kha, "freedom of expression is
still being threatened as long as clause 66(d) exists". In June 2017 human rights groups released a joint
statement declaring that the law was being used "to stifle criticism of the authorities" and urging authorities
to repeal the law due to its vagueness. However, members of the Suu Kyi’s National League for Democracy
say that the law reduces hate speech and false news. According to the advocacy group Research Term for
the law, 17 journalists have been charged or arrested since last year.

www.lawteller.com September 2017 I Lawteller I 465

 LIGHTER SIDE OF LA
LAW
W
SIDEWALKS!
An American attorney had just finished a guest DID YOU KNOW?
lecture at a law school in Italy when an Italian
n Victoria, Australia
lawyer approached him and asked, "Is it true that
a person can fall down on a sidewalk in your It is illegal to change a light bulb yourself
country and then sue the landowners for lots of unless you are a qualified electrician.
money?"
Told that it was true, the lawyer turned to his n China
partner and started speaking rapidly in Italian.
It is illegal for the Tibetan monks to
When they stopped, the American attorney asked
reincarnate without the government’s
if they wanted to go to America to practice law.
"No, no," one replied. "We want to go to America permission.
and fall down on sidewalks."
n Switzerland
BANK ROBBERY Flushing the toilet after 10 pm in an
After two-week criminal trial in a very high profile
apartment building is illegal. The Swiss
bank robbery case, the jury finally ended its hours
government considers it noise pollution.
of deliberations and entered the courtroom to
deliver its verdict to the judge.
The judge turns to the jury foreman and asks, n Texas, U.S.
"Has the jury reached a verdict in this case?"
It is illegal to threaten somebody with an
"Yes we have, your honor ," the foreman
unloaded gun.
responded.
Disclaimer - Lawteller Team is not responsible for the
"Would you please pass it to me," actuality of the above information as available in the
The judge declared, as he motioned for the bailiff public domain.
to retrieve the verdict slip from the foreman and
deliver it to him.
After the judge reads the verdict himself, he
delivers the verdict slip back to his bailiff to be
returned to the foreman and instructs the foreman,
"Please read your verdict to the court."
"We find the defendant NOT GUILTY of all four
counts of bank robbery," stated the foreman.
The family and friends of the defendant jump for
joy at the sound of the "not guilty" verdict and hug
each other as they shout expressions of divine
gratitude. The defendant‘s attorney turns to his
client and asks, "So, what do you think about
that?"
The defendant looks around the courtroom slowly "Sunny, tell your father what you learned
with a bewildered look on his face and then turns
to his defense attorney and says, "I‘m real
today in pre-pre-pre-pre-law school"
confused here. Does this mean that I have to give START THEM YOUNG...
all the money back?" Courtesy - www.pinterest.com

466 I Lawteller I September 2017 www.lawteller.com