From the Supreme Court of India

Illustration for an Entangled Legal Web

Chinnakarupathal v. A.D Sundarabai Civil Appeals Nos. 5267-69 OF 2002.

Decided on 24-10-08
A cause of action that began its life pre- independance and carried through three generations was decided yesterday by the SC, hopefully in finality. The cause of action for this civil suit began in 1946 by non payment of a sale price. The decree of the sub- court was reversed later by the HC. Meanwhile, the decree holder had already availed the decree amout on furnishing guarantee of the current suit propoerty and absocnded. The guarnateed property was auctioned and the legal heirs of the auctioned property through this extended legal battle is trying to get back the property and in final attempt to bring it under the the provisions of the Tamil Nadu Agriculturists Relief Act, 1938. The appeal is rejected by the SC.

The Review Power of the Government to be Used within Reasonable Time

M.P. Housing Board v. Shiv Shankar Mandil Civil Appeal Nos. 3840-3841 of 2001. Judgment dated 24-10-08

This depicts the plight of an entreprenuer who proposed to commence an industrial unit in 1991 and till yesterday was fighting a battle to enjoy the lease hold which was granted by one department of the government and objected by another after the grant and the execution of the deed. The idustrial depratment granted the lease but the M.P Housing Board chose to object it as the Survey Number was in the middle of a residential plan of the Board.

The collector found it relevant to review his decision of grant of leas after lapse of three years. Meantime the first repsondent herein had already started construction. The case reached the HC and the repsondent got a favourable order both from the single and division bench. Against the order of which, this appeal is filed.

Besides the technicalities involved in the revenue lands and its management, this case deals with the effect of delay in reviewing its own decision by the government and held that such delay could be fatal and found the case in favour of the respondent.

Impact of Re- Assessment Order

M/s Kanpur Edibles Pvt. Ltd. v. Commissioner, Trade Tax, U.P. Civil Appeals. Decided on 24-10-08

The effect of re-assessment order on the earlier order is the issue of determinatin in this case. Previosly decided case by the SC, [M/s Kundan Lal Srikishan, Mathura (U.P.) v. Commissioner of Sales Tax, U.P. and Anr. (1987 (1) SCC 684)] and the later amendment to the U.P Sakes Tax Act to get over the judgment is the issue herein.

Relevant part of the judgment in given below

"8. It is to be noted that in Kundan Lal's case (supra) it was observed that on initiation of the re-assessment proceedings the original order of assessment becomes inoperative. But Explanation III to sub-Section (1) of Section 21 makes the position clear that where an order of assessment or re-assessment is in existence before the issuance of the notice under sub-section (1) it continues to be effective as such until varied by an order of assessment or re-assessment made under Section 21 in pursuance of that notice. In other words, an order of assessment or re-assessment which was in existence at the point of time the notice was issued, continues to be effective unless it is varied. If it is not varied it goes without saying that it continues to be operative and effective. The period for making assessment or re-assessment is provided in sub-section (2) of Section 21. The period fixed for making assessment or re-assessment under any provision of the Act for any assessment year is two years from the end of the concerned assessment year. However, this period can be extended in terms of the proviso to sub-section (2) if the Commissioner on his own or on the basis of reasons recorded by the assessing officer is satisfied that it is just and expedient to do so to make the assessment or the re-assessment after the expiration of the period provided in sub-section (2) but in any event not after the expiration of 4 years from the end of such year notwithstanding that such assessment or re-assessment may involve a change of opinion. In other words, the maximum period available for making assessment or re-assessment is 4 years from the end of the assessment year in question. That is no exception to this position because sub-section (2) of section 21 itself provides that such assessment or re-assessment may be made under any provision of the Act which includes Section 10-B. ... The Commissioner or the authorized officer is empowered to pass such order with respect thereof as he thinks fit. The crucial expressions in Section 10B(1) are "for the purpose of satisfying himself as to the legality or propriety of such order" and "with respect thereof".

In the present case what the revisional authority was empowered to test was the legality or propriety of the order cancelling the notices issued under Section 21(1) by order dated 29.5.2003. Such an exercise cannot encompass an order of assessment. It is of significance to note that the original orders have not been varied and could not have been varied after the period of limitation. What could not have been directly achieved has been attempted to be done in an indirect manner. If the revisional authority was of the view that the order dated 29.5.2003 was not legal, then that order would have been varied if it was found that order lacked legality or propriety. The expression "with respect thereof" makes the position clear that for testing the legality or propriety of the order (in the instant case the order dated 29.5.2003) if any order was to be passed that had to be passed with respect thereof. Such an order does not empower the revisional authority to make an order of assessment. As noted above, what the revisional authority has done is to substitute the original orders of assessment in the garb of testing the legality and/or propriety of the order cancelling the notices. Such a course is not countenanced and has no legal basis. Therefore, the High Court was not justified in interfering with the order of the Tribunal. The impugned orders of the High Court are set aside and the appeals are allowed but without any order as to costs."

Principles to be Followed in Dealing With Appeal Against Acquittal

State of Maharashtra v. Ahmed Shaikh Babajan Criminal Appeal Nos. 25-29 of 2002. Decided on 24-10-08

The following are the general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal:-

This was held in Chandrappa & Ors. Vs. State of Karnataka

"(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2)The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3)Various expressions, such as, "substantial and compelling reasons" "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5)If two reasonable views are possible on the basis of evidence on record and one favourable to the accused has been taken by the trial court, it ought not to be disturbed by the appellate court."