-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.
Friday, November 28, 2008
Thursday, November 27, 2008
Wednesday, November 26, 2008
Tuesday, November 25, 2008
Finance Minister's Speech at the Economic Editors’ Conference 2008
Fast Track Courts for Cases under S. 138 Negotiable Instruments Act?
Justice Markandey Katju in the Hindu- Part I & Part II
Guantánamo Bay: at last, justice — of a sort
Book Review: RESERVED — How Parliament Debated Reservations 1995-2007 by Rajeev Dhavan
Monday, November 24, 2008
Also see, Jeremy Waldron, VAGUENESS IN LAW AND LANGUAGE: SOME PHILOSOPHICAL ISSUES 82 Cal. L. Rev. 509 (1994)
Peter M. Tiersma, THE AMBIGUITY OF INTERPRETATION: DISTINGUISHING INTERPRETATION FROM CONSTRUCTION, 73 Wash. U. L.Q. 1095 (1995)
Sunday, November 23, 2008
Saturday, November 22, 2008
Friday, November 21, 2008
Thursday, November 20, 2008
2. Where particular forms are provided, the requirements laid down in the form could be considered for proper construction of the provisions of the Rules and consequently the statutory enactment.
3. Eligibility criteria should be construed strictly. But once the applicant satisfies the criteria, the exemption notice should be construed liberally.
Wednesday, November 19, 2008
The Delhi High Court rejected MCD's stand. The Supreme Court held:
1. The forms in which tenancies are created in India are not uniform and they do not conform to the precedents known to conveyancing; sometimes the words used are not precise and it is not easy to understand from the said words the intention of the parties in executing the documents. The nature of the tenancy created by any document must be determined by construing the document as a whole. [This is true- lease agreements, especially those entered into by the Government, are notoriously difficult to interpret.]
2. There was a lease deed dated 20.3.80 between the lessor and the lessee in the first instance under which the lessee Mohan Co-operative Industrial Estate Ltd. was given the authority to sub-lease on such premium and yearly rent as may be fixed by the lessor (President of India).
3. The sub- lessee had applied for the lease to the lessee, the lessee agreed to sub-let and the lessor (President of India through Delhi Administration) had agreed to confirm a perpetual sub- lease. Therefore, the lessor and not the lessee is the confirming party to the sub-lease between the lessee- Mohan Co-operative Industrial Estate Ltd. on one hand and M/s. Shashnak Steel Industries Pvt. Ltd. on the other hand.Therefore, there is no merit in the contention advanced on behalf of the Corporation that under the Deed lessor conferred leasehold rights to the sub-lessee to which the lessee was a confirming party. On the contrary, the said Deed indicates the lease was between the lessee and the sub-lessee to which the lessor was the confirming party.
4. The lessor is the confirming party because under the Deed in question rent and premium was revisable periodically and the determination of the revised/enhanced rent/premium was left to the lessor though rent and premium was payable by the sub-lessee to the lessee.
5. Great emphasis is placed by the Corporation on the fact that the sub-lessee was required to pay a sum of Rs.16093.60 as premium in addition to rent which according to the Corporation indicated purchase of leasehold rights. According to the Corporation on purchase of leasehold rights the sub-lessee became the owner thereof. We find no merit in this contention. If one looks at the Deed in question we find that the lessor has retained its right to determine periodically the rent payable and the premium chargeable. Both rent and premium was payable by the sub-lessee to the lessee. The sub- lessee had agreed to put up at its own expense a factory on the industrial plot within two years from dated 20.2.81. Under the Deed the lessor had to estimate the capital value (including the enhancement) as and when the unit came up. It appears from the Deed that lessor was entitled to a share in the enhanced value. The said Deed further stated that the lessor shall have a right to recover 50% of the unearned increase as and when the lessor gives permission to the sub- lessee to transfer, assign or part with the possession of the plot to any other member of the lessee society. All these terms indicate that under the Deed parties contemplated that on the unit coming up on the leasehold land there would be an accretion in the value. In our view, the provision for premium was only an additional source of revenue. Therefore, we do not find any merit in the contention advanced on behalf of the Corporation that on payment of premium the sub-lessee became the owner of the leasehold rights.
6. Further as rightly held by the High Court there are numbers of restrictions put on the sub-lessee which prevented the sub-lessee from full enjoyment of the leasehold rights.
Tuesday, November 18, 2008
PIL- Strictures by the Court
The Indian Express today is carrying a piece by Madhav Khosla on the recent rejection of a PIL by SC of ADR for directions to be issued to political parties to submit their income-tax returns. He takes the opportunity to critically analyse the shift in the approach of entertaining PIL by the supreme court and qualifies this rejection as innocuous.
The petition was rejected by the court, as per news paper reports, for reasons that the petititoner is taking the opportunity of forthcoming elections to gain mileage. The law mandates poltical parties to submit yearly return and the provision has the rationale of transparancy, which is very vital for any democracy. The sways of political parties while in government could be determined by the quarters from which funds flow into their account.
The PIL was for the issuance of a direction for performing a legal duty (S. 29 C of the RP Act 1951). Court refused to entertain the matter also citing that if a political party fails to submit a return, law will take its course as how it will treat a person when fails to file a return. Here the court failed to appreciate that the court themselves have given grand lectures on the corretalationship between political parties and democracy as to how sun should shine through the hallway of political parties to keep it disinfected. They forgot the vital distinction between person and political party in the context of democracy.
One could very well argue that it is not the duty of the court, but there should be other agencies to take care of the matter, and I thought it is exactly that ADR should be asking for. I deeply wish ADR or people who have access to information will bring out how many political parties have so far filed returns and what actions the IT authorities have taken on it.
The reading of the section shows that the only sanction would be that the parties will not get tax relief and it can be qualified as toothless.
(3) The report for a financial year under sub-section (1) shall be submitted by the treasurer of a political party or any other person authorised by the political party in this behalf before the due date for furnishing a return of its income of that financial year under section 139 of the Income-tax Act, 1961 (43 of 1961), to the Election Commission.
(4) Where the treasurer of any political party or any other person authorised by the political party in this behalf fails to submit a report under sub-section (3) then, notwithstanding anything contained in the Income-tax Act, 1961 (43 of 1961), such political party shall not be entitled to any tax relief under that Act.
Section 29 C comes under the chapter heading, Registration of Political Parties. The live debate about the power of de-registration of political parties for non- compliance of provisions garners importance here. Lest, this condition of filing returns will remian a misnomer and only saving grace would be the CIC's order that returns of political parties are public documents coming under the purview of RTI.
The facts, as noted by the Hon'ble Judge are:
SIEL entered into an agreement (referred to as the MoU) on 10.6.1994... The MoU was expressed as being valid for two years with a stipulation for renewal, for a further period through consent of parties; it could be terminated by either party giving notice, in writing. SIEL placed orders on the claimant to the extent of 1,562.975 MTs till March 1995. After that date it did not place any further order. The claimant alleged that it was aggrieved and issued a legal notice. It was alleged that the total quantity agreed to be lifted or purchased by SIEL was 5,000 MTs. Vanaspati for the first year and 6,000 MTs. Vanaspati for the second year... The MoU contained an arbitration clause in the following terms:
All disputes between the parties hereto arising out of this agreement shall be referred to an arbitrator appointed by Indian Council of Arbitration, New Delhi, and the provisions of the Indian Arbitration Act for the time being in force shall be applicable to such reference. Such reference will be decided as per the rules of Indian Council of Arbitration. The award decision so given shall be final and binding upon the parties.
Dispute arose between the parties and Prime wrote to Indian Council for Arbitration (ICA) with SIEL under the aegis of ICA. This was, in turn, informed to SIEL by ICA wherein it was stated:
As the amount involved in the dispute is stated to be Rs. 6,81,12,565/-, under the Rules of Arbitration of the Council, it has to be heard and determined by the arbitral tribunal of three arbitrators, unless the parties to the dispute agree to refer the dispute to sole arbitrator (rule 21(b). One each to be nominated by the parties and the third will be appointed by the Council, under its Rules. You are hereby required to forward the name of you nominee arbitrator from the panel of Arbitrators (copy enclosed) of the Council on or before 6th February 2000.
Under Rule 27 of the Rules of Arbitration of the Council, you are hereby required to deposit a tentative amount of Rs. 95,500/- towards the costs and expenses of the above arbitration on or before 6th February 2000. The cheque/draft for the amount may be sent in the name of The Indian Council of Arbitration. The deposit will be taken into account by the arbitral tribunal in apportioning the costs while making the Award. The Arbitrator or the Registrar will have power to call for further deposit, if necessary.
Prime wrote to ICA stating that the arbitration clause of the MOU contemplated a sole arbitrator. ICA changed its stand and wrote to SIEL stating:
Since both parties have agreed to refer the matter to an arbitrator i.e. sole arbitrator. We shall appoint the sole arbitrator on confirmation from the respondent also and in case both parties fail to forward the name of sole arbitrator by common consent... The respondent is directed to appoint the sole arbitrator with common agreement of the claimant for which the deposit will be Rs. 47,875/- by each party.
ICA appointed Mr. Justice K.N. Singh, Retired Chief Justice of India as the Arbitrator. SIEL moved an application before the latter stating that appointment of sole arbitrator by ICA was contrary to Rule 21-B of the ICA Rules and to Clause 18 of the MOU. It, therefore, sought for appropriate orders under Section 13(2) of the Act, on 21.8.2000. After considering the merits of the application, the Arbitrator rejected it, holding that the Tribunal was appropriately constituted in accordance with the arbitration agreement as well as in terms of the ICA rules.
Rule 20(b) of the ICA Rules states that where the claim is above Rs. 50 lacs, the dispute would be heard by a three- arbitrator tribunal, unless the parties agreed otherwise. It was contended by SIEL that the dispute had to be heard by an arbitral tribunal consisting of three judges. The Single Bench Court rejected Prime’s contention and held:
In plain words, the opening part of Clause 18 provides for appointment of a sole arbitrator and it confers authority on the ICA to appoint the arbitrator. The second part of Clause 18 relates to procedure and other matters in deciding the reference. The Rules framed by the ICA refer to many other matter also e.g. filing of claim petition, counter claim and administrative fee, place of arbitration etc. The expression 'reference will be decided as per the Rules of India Council of Arbitration' does not attract application of Rule 20 and 22(b) in view of the opening part of the Clause 18 of the agreement. If the agreement had stated that the dispute between the parties shall be settled by arbitration in accordance with the Rules of arbitration of the ICA, then Rule 20 and 22(b) would be applicable. But in the present case the language used in Clause 18 is quite different, under that clause, parties agreed for reference of the dispute to sole arbitrator who may be appointed by the ICA and they further agreed that the provisions of the Act and Rules of the ICA will be apply in deciding the reference.
Further, SIEL challenged the award rendered by the arbitrator on the ground that the procedure was violative of Section 34(2)(a)(v) of the Arbitration and Conciliation Act, 1996. SIEL brought the court’s attention to the fact that ICA had changed its initial stand of appointing three arbitrators and had instead appointed a sole arbitrator. The Delhi High Court reasoned in favour of the change of stand by ICA:
On a perusal of the various letters exchanged between the parties and the ICA, it is clear that the claimant as well as the respondent both had been given more than 30 days notice to nominate the sole arbitrator within mutual consent, but they failed to do so. The ICA extended the time for making the nomination of arbitrator, but even after five months of extended time, the parties failed to appoint sole arbitrator with mutual consent. Thereafter the ICA appointed sole arbitrator out of the panel maintained by it. The ICA in my opinion committed no illegality in appointing the sole arbitrator.
Counsel for SIEL argued:
1. The ICA itself had determined that since the Prime Industries Ltd.'s claim was in excess of Rs. 50 lakhs the dispute had to be referred to three arbitrators. However, without explanation it did a volte face and, contrary to Rule 21(b) without recording the consent of parties, constituted a Tribunal comprising of a Sole Arbitrator. Learned Counsel contended that the reference to an Arbitrator has to be understood as the dispute resolving mechanism rather than as a conscious agreement of parties to refer their disputes to a sole arbitrator.
2. Under Section 13(2) of the General Clauses Act, 1897, while interpreting an Act or Regulation a term in singular would include the plural and vice versa.
It was argued that the award had to set aside on the ground, inter alia, that the tribunal was illegally constituted.
Counsel for Prime stated:
1. The order of reference dated 2.7.1999 of the Delhi High Court clearly pointed to an express agreement by the parties for the resolution of their disputes by a Sole arbitrator.
2. Under the ICA Rules, particularly, Rule 8, the decision of the Arbitration Committee [constituted under Rule 3(a)] relating to interpretation of Rules or in procedural matter, was final and binding on the parties. Consequently, the ICA's position that the dispute was to be decided by a sole arbitrator could not be termed as illegal or contrary to agreement.
The Court acknowledged that “the procedure contemplated under Rule 21(a) is that all disputes where claims exceed Rs. 50 lakhs, are to be decided by a panel of three arbitrators, unless after notification of request for arbitration, the parties agree to refer the dispute to a sole arbitrator. In the facts of this case, that is undeniably, not the position. When Prime Industries sought for arbitration, ICA, through its letter, intimated that the arbitral tribunal would be of three members. However, it resiled from this stand, when the Prime Industries pointed out about the stipulation in Clause 18 being to an arbitrator.”
Thus, the court had to decide the meaning of “the expression an arbitrator even while there is an express advertence to ICA rules, which would govern the parties in this case.”
The Court held:
1. In interpreting such a document, the court has to follow certain basic canons of construction. First, the term or terms in question should not be read in isolation, but have to be considered in their contextual setting. After all, the parties, in such cases, set their own ground rules, which would be considered as norms binding them. The other consideration is that the interpretive process itself should not inject ambiguity to a term in a document, if it is otherwise plain in its meaning.
2. The Indian Iron and Steel Co. Ltd. v. Tiwari Road Lines. MANU/SC/7707/2007, the Supreme Court underlined the importance of the courts respecting the mandate of the parties, in the following terms:
In the matter of settlement of dispute by arbitration, the agreement executed by the parties has to be given great importance and an agreed procedure for appointing the arbitrators has been placed on high pedestal and has to be given preference to any other mode for securing appointment of an arbitrator.
3. The court here cannot divorce the contextual setting of the term an arbitrator. It is set in an arbitration clause. Significantly, the parties did not use the widely used term Sole arbitrator or such like expression to manifest an intention that arbitration was to be by a single arbitrator.
4. Also, barring the letter written on behalf of the Prime Industries, in answer to the ICA's letter of 6-1-2000, there is nothing to support the ICA's assertion that the parties had agreed to a sole arbitrator, as mentioned in its letter of 30-1-2000. No doubt, CMC Ltd. is a judgment upholding the proposition that if parties express a clear intention to depart from the rules of ICA, or some other such body, they would be bound by it. Again, while reading such a judgment, the court cannot ignore the contextual facts. The arbitration clause was an elaborate one, where the parties' intention was more clearly expressed; the procedure prescribed by ICA was at variance from what was spelt out by the parties.The Orissa High Court, in Gayatri Projects Ltd. v. State Of Orissa Through The Executive Engineer, Heads Works Division, At/p. O. Samal, Dist. Angul. 2004-(2)-ARBLR 394 (Ori) had to deal with a somewhat similar situation where one party asserted that the expression an arbitrator meant the singular, and not a plurality of arbitrators, which was stipulated in the rules, of which the parties had made express mention, in the arbitration clause. The court dispelled the contention, in the following terms:
Para 25.2 of Section 5 of the agreement stipulates that either party may refer a decision of the adjudicator to 'an Arbitrator' within 28 days of the adjudicator's written decision. From the expression 'an Arbitrator', learned Counsel for the petitioner submitted that Arbitrator contemplated thereunder cannot be more than one Arbitrator and, therefore, as the Arbitration Tribunal which consists of three members is incompetent to adjudicate the dispute between the parties or to examine the correctness of the decision of the adjudicator. But aforesaid words 'an Arbitrator' occurring in Clause 25.2 of the said agreement has to be read along with other provisions stipulated in the said agreement. This expression 'an Arbitrator' cannot be detached from the context in which it occurs and hence the same cannot be interpreted in the vacuum. An interpretation of the expression 'an Arbitrator' has to be made in the light of other provisions of the agreement. The very next clause, namely, Para 25.3 occurring in Section 5 of the said agreement clearly stipulates that the Arbitration shall be conducted in accordance with the Arbitration procedure published by the institution named and in the place shown in the Contract Data, of the same agreement. Contract Data of the agreement clearly stipulates in an unambiguous language that the procedure followed by the Arbitration Tribunal shall be followed. I cannot lightly presume that the petitioner was ignorant about the existence of such Arbitration Tribunal or that it consisted of three members. This being the position, the expression 'an Arbitrator' must be held to include the Arbitration Tribunal also constituted by the Government under the provisions of the said Rules. If I accept this position, then I cannot allow the prayer of the petitioner to give a declaratory relief that such Arbitration Tribunal constituted under the said Rules consisting of three members is incompetent to adjudicate the dispute between the parties merely because it consists of more than one member.
5. The term “an arbitrator” is to be understood in the context of the parties' desire for arbitration; the parties further wanted the arbitration to be in accordance with the ICA rules, which envisaged that in such claims, the tribunal was to be of three arbitrators. This was also the initial understanding of ICA, which for inexplicable reasons, later stated that the parties had agreed to a sole arbitrator.
6. The court cannot overlook the fact that at the contract formation stage, the parties had access to ICA rules, which stipulated that such claims were to be adjudicated by three arbitrators. The parties, or one of them, proceeded to agree to arbitration, on the premise of decision by three arbitrators, as embodied in Rule 21(b) cannot be ruled out. As against this, the contentions of Prime Industries Ltd. that the term in Clause 18 is to be understood as an intention to have a sole arbitrator, are weaker. Not only is the evidence contrary to that understanding, but also the fact that the expression an arbitrator cannot be torn out of context; it would mean adjudication through arbitration, or simply, a generic reference to alternative dispute resolution through arbitration, in accordance with rules of ICA.
In view of the above reasons, the court is of opinion that SIEL has established that composition of the arbitral tribunal was not in accordance with the agreement between the parties, which incorporated Rule 21(b); the parties did not agree to decision by a sole arbitrator. As a result, SIEL's petition has to succeed.
Monday, November 17, 2008
Section 230 of the Contract Act categorically makes it clear that an agent is not liable for the acts of a disclosed principal subject to a contract to the contrary.
Komalam Amma v. Kumara Pillai Raghavan Pillai and Ors. CIVIL APPEAL NO. OF 2008 decided by Dr. ARIJIT PASAYAT & Dr. MUKUNDAKAM SHARMA JJ. on November 14, 2008. It was held:
Maintenance, as we see it, necessarily must encompass a provision for residence. Maintenance is given so that the lady can live in the manner, more or less, to which she was accustomed. The concept of maintenance must, therefore, include provision for food and clothing and the like and take into account the basic need of a roof over the head. Provision for residence may be made either by giving a lump sum in money, or property in lieu thereof. It may also be made by providing, for the course of the lady`s life, a residence and money for other necessary expenditure. Where provision is made in this manner, by giving a life interest in property for the purposes of residence, that provision is made in lieu of a pre-existing right to maintenance and the Hindu lady acquires far more than the vestige of title which is deemed sufficient to attract Section 14 (1).
Call to resist protectionism, revive Doha Round
New Nepal Constitution by May 2010
Anti-terror laws lose teeth in India: Official study
Set up national research mission: Pitroda to PM
Whose NREGS is it anyway?
Take part in court proceedings responsibly: SC to Maha Govt See here for a comment on the judgment
[City and Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala & Ors. CIVIL APPEAL NO. 6653 OF 2008 decided by S.H. Kapadia & B. Sudershan Reddy JJ. on November 14, 2008]
Sunday, November 16, 2008
Friday, November 14, 2008
(a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved;
(b) petition reveals all material facts;
(c) the petitioner has any alternative or effective remedy for the resolution of the dispute;
(d) person invoking the jurisdiction is guilty of unexplained delay and laches;
(e) ex facie barred by any laws of Limitation;
(f) grant of relief is against public policy or barred by any valid law; and host of other factors."
ONGC awarded Sarku a contract for building 26 Well Unmanned Platforms. Sarku entered into a contract with subcontractor- Standard Corrosion on 21.2.2006. On 8.9.2006, Sarku terminated the Contract with Standard Corrosion under Article VII of he agreement on the ground that Standard Corrosion was unable to furnish the bank guarantee and feedback confirmation of Standard Corrosion’s readiness to work.
On 14.4.2007 Standard Corrosion invoked Article X, the arbitration clause in the agreement. The applicant also mentioned in the said letter that in the event the Sarku failed to send the list of eminent arbitrators as required by Standard Corrosion, the applicant shall approach the High Court to appoint the Sole Arbitrator. After several communications, Sarku stated that in "Article X of the Arbitration it was mentioned that in case of any dispute or difference between the parties regarding the contract, the matter should be settled, as far as possible, by mutual consultation and consent, failing which by arbitration to be held at Mumbai, applying the Arbitration Rules of the International Chamber of Commerce". Article X of the Agreement read:
The application is not maintainable as the applicant has not approached ICC Secretariat for the appointment of arbitrator. The Court held: "the applicant has to apply to the Secretariat of the ICC, as mentioned in the Arbitration Rules of the ICC, and it cannot approach this Court for appointment of an Arbitrator. No doubt, the arbitration will have to be held at Mumbai, but the entire procedure of appointment of the Arbitrator has to be in accordance with the Arbitration Rules of the ICC, which requires that first a request has to be made to the Secretariat of the ICC. The Court relied on the following decisions: Iron & Steel Co. Ltd. vs. Tiwari Road Lines 2007(5) SCC 703, Rite Approach Group Ltd. vs. Rosoboronexport 2006(1) SCC 206 etc.
Standard Corrosion had also relied on Article IX of the Agreement, which read: "This CONTRACT shall be governed by the laws of India. The CONTRACTOR shall be responsible to keep itself informed and comply with all laws, rules, regulations, standards, codes and the like applicable to the WORKS, CONTRACTORS and its subcontractors and CONTRACTOR shall protect, indemnify and hold ONGC, SARKU, their AFFILIATES and associated companies and their stockholders, directors, agents, employees, and representative of each of the aforementioned parties harmless from and against all liabilities for any breach thereof attributable to CONTRACTOR or its subcontractors."Article IX has no relevance to the controversy in this case as it only says that the contract shall be governed by the laws of India. The laws of India would mean the Contract Act, Limitation Act, Specific Relief Act etc. Article/Clause IX does not deal with the procedure by which the arbitrator has to be appointed. That is governed by Clause X.
Here the information was denied on the ground that "inquiry and investigation against an officer is an internal matter between the employer and employee and disclosure thereof is not in public domain." The CIC held:
Thursday, November 13, 2008
New Grounds cannot be Raised in an Appeal Under Article 136
M.Venugopal v. Dy. Commissioner,Chitradurga District & Ors. Civil Appeal No(s). 6262 of 2003. Date of Judgment 06-11-08
Petitioner cannot raise a new plea, here of adverse possession, at this stage of appeal, which has not been raised in earlier stage as also when the original petititon is not amended to that effect.
Acquital of co- Accused No Reason for Acquital of All
Munna @ Pooran Yadav v. State of Madhya Pradesh. Criminal Appeal No. 1025 of 2006. Date of Judgment 4-11-08
No such law is laid down by this court that when the two other accused persons are acquitted (by giving benefit of doubt), the third one must be given the same benefit of doubt. Principle of parity is not available when incrimiating evidence is available against on of the accused.
Appreciation of Extra-judicial Confession
Mohd. Azad @ Samin v. State of West Bengal. Criminal Appeal No. 1729 of 2008. Date of Judgment 5-11-08
"22. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an
untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility."
Principles to be Followed While Interfering under Article 226 and Section 482 of Cr. P C at the Threshold of a Proceeding
State of Kerala v. Orison J Francis & Anr. Criminal Appeal No. 1723 of 2008. Date of Judgment 5-11-08
"8. The scope for interference at the threshold by exercising power under Section 482 of the Code has been succinctly stated by this Court in State of Haryana v. Bhajan Lal [1992 Supp(1)SCC 335]. In paragraph 102 it was stated as follows:
... principles of law enunciated by this Court ... in the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories ... by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
Restatement of Appreciation of Circumstantial Evidence
Mula Devi & Anr. v. State of Uttarakhand. Criminal Appeal No. 1722 of 2008. Date of Judgment 4-11-08
Deepak Bajaj v. State of Maharashtra & Anr. Writ Petition (Crl.) No.77 of 2008
3. Orders could be interfered when the court is satisfied
a. that the impugned order is not passed under the Act under which it is purported to have been passed
POTA- Relevancy of Confession by Co-accused
Wednesday, November 12, 2008
PSUs Asked to Park Surplus Funds with PSBs
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Why Can’t There be More Transparency in Judicial Appointments, Asks Verma
OVL Obtains Russian Regulatory Approvals for Imperial Acquisition
Business Line Editorial on Airport Regulatory Authority
Business Line Editorial on Resources Related Conflicts and Resolution
Steel Ministry for Countervailing Excise Duty on Steel Products
Indian Express Editorial on Indian Judiciary
Tuesday, November 11, 2008
Ishwaragouda & Ors. v. Mallikarjun Gowda & Ors. Civil Appeal No. 5878 of 2002. Date of Judgment 7-11-08
Electiricity - a 'Good' and the Nature and Freedom of the Supplier for Entering into a Contract for Supply of Electricity
Paschimanchal Vidyut Vitran Nigam Ltd. & Ors. v. M/s. DVS Steels & Alloys Pvt. Ltd. & Ors. Civil Appeal No.6565 of 2008 . Date of Judgment 7-11-08
Relevant Portion of the Judgment
"9. The supply of electricity by a distributor to a consumer is `sale of goods'. The distributor as the supplier, and the owner/ occupier of a premises with whom it enters into a contract for supply of electricity are the parties to the contract. A transferee of the premises or a subsequent
occupant of a premises with whom the supplier has no privity of contract cannot obviously be asked to pay the dues of his predecessor in title or possession, as the amount payable towards supply of electricity does not constitute a `charge' on the premises. A purchaser of a premises, cannot be foisted with the electricity dues of any previous occupant, merely because he happens to be the current owner of the premises. The supplier can therefore neither file a suit nor initiate revenue recovery proceedings against a purchaser of a premises for the outstanding electricity dues of the vendor of the premises, in the absence of any contract to the contrary.
10. ... When the purchaser of a premises approaches the distributor seeking a fresh electricity connection to its premises for supply of electricity, the distributor can stipulate the terms subject to which it would supply electricity. It can stipulate as one of the conditions for supply, that the arrears due in regard to the supply of electricity made to the premises when it was in the occupation of the previous owner/occupant, should be cleared before the electricity supply is restored to the premises or a fresh connection is provided to the premises. If any statutory rules govern the conditions relating to sanction of a connection or supply of electricity, the distributor can insist upon fulfillment of the requirements of such rules and regulations. If the rules are silent, it can stipulate such terms and conditions as it deems fit and proper, to regulate its transactions and dealings. So long as such rules and regulations or the terms and conditions are not arbitrary and unreasonable, courts will not interfere with them."
Restatement of the Principles to be Followed While Superior Court Sit in Appeal over the Acquital Order of the Lower Court
State of Haryana v. Krishan Criminal Appeal No. 915 of 2003. Date of Judgment 7-11-08
1. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based.
2. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal.
3. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted.
4. The paramount consideration of the court is to ensure that miscarriage of justice is prevented
5. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not
6. The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are substantial reasons for doing so.
7. If the impugned judgment is clearly unreasonable and irrelevant and convincing materials have been unjustifiably eliminated in the process, it is a substantial reason for interference.
Monday, November 10, 2008
An MoU was signed between the M/s Comed Chemicals (Comed) and CN Ramchand (Ramchand) for “the development of products in the field of bio-industries and manufacturing and marketing of such products.” In consequence, Ramchand was appointed as Director (Technical) by Comed. Due to various grievances against Ramchand, including resignation before completion of the work undertaken by Ramchand in breach of the MoU, Comed initiated arbitration proceedings on August 12, 2005 as per Clause 12 of the MoU by appointing Ramesh H. Nanavati, a retired District Judge as arbitrator. Ramchand replied that he was not agreeable to the arbitrator proposed by the Company and instead proposed 3 names. When Comed filed a petition for appointment before the High Court, he contended that he was a British National. and therefore the arbitration would be `International Commercial Arbitration' as defined in Section 2(1)(f) of the Arbitration and Conciliation Act, 1996 (Act) and under Section 11(9) of the Act the Chief Justice of India (CJI) would have the power to appoint an arbitrator. The application was withdrawn and Comed filed an application before the CJI
Whether the disagreement amounted to ‘dispute’?
Whether the Agreement came within the purview of ‘Commerce’?
Whether Clause was an arbitration Clause or an Expert Determination Clause?
The Court allowed the petition and held that the Clause 12 of the MoU which read as follows was an arbitration clause:
If there be any dispute pertaining to meaning of this MoU or of any nature, will be solved and decided by appointing an independent Arbitrator acceptable to all the parties and if not solved by him can be referred to court of law and for which the jurisdiction will be Vadodara.
Further, the Court, citing R.M. Investment & Trading Co. Pvt. Ltd. v. Boeing Co. & Anr., (1994) 4 SCC 541 and other judgments held:
It was held that the agreement to render consultancy service by the appellant to the respondent was `commercial' in nature and there was commercial relationship between the parties.
The Court went on to hold that if the Contract was a mere employment and the relationship between the parties was a master-servant relationship, the matter was inarbitrable. However
[I]f the respondent is engaged by the applicant Company to perform functions which are inextricably linked with functions which could be undertaken by a businessman or by a Company and such activities form an integral part of his activities, there is element of `commerce'. In that case, the provisions of the Act would clearly apply.
25. In the instant case, the respondent has been appointed as Director (Technical) and has been allotted 40% equity shares in the subsidiary Company (Comed Bio-Tech Ltd.). Over and above that, he was to be paid salary and other benefits in lieu of services rendered by him. Para 3 of the Agreement required the respondent to undertake certain responsibilities.
The applicant-Company wanted to venture into the field of bio-technology which was not previously chartered or traversed by it (novel bio-products). The respondent possessed special knowledge and to get the benefit of such research and expertise, an agreement had been entered into by the parties and respondent had been appointed Director of the subsidiary Company.
28. Now, it is well settled that a Director is not a mere employee or servant of the Company. Such Director may have to work also as an employee in a different capacity. I hold that the respondent was working in dual or double capacity, i.e. (i)as an employee, and (ii) as a Director. In the later capacity, however, he was the Chief Executive Officer of the subsidiary Company and had to look after all operational matters. The functions to be performed by him were supervisory and related to policy making decisions in the affairs of the Company, as observed by this Court in Ram Pershad. Any dispute between the applicant-Company and the respondent would, therefore, be covered by Clause 12 of the Agreement which provides for arbitration. Hence, the contention of the learned counsel for the respondent that the respondent was merely an employee and there was no element of business, trade or commerce has no substance and must be rejected.
The Court appointed Madhukar Fanse, retired Judge, City Civil Court, Ahmedabad as the sole arbitrator to decide the dispute between the parties
Suman Kapur v. Sudhir Kapur Civil Appeal No. 6582 of 2008, Date of Judgment 7-11-08
A matrimonial affair reaching the SC for final verdict as appeal against the confirmation order of the HC of the grant of divorce by the trial court on the ground of cruelty [Section 13 (i) of Hindu Marriage Act]. Cruelty is not defined in the Act but through case laws it has been well established that it includes mental cruelty. The case also refers to a recent decision of the SC (Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511) in which a detailed explanation of mental cruelty is given.
The SC affirmed the decision of the HC finding mental cruelty on the part of the wife. By doing so the SC has added another dimension to mental cruelty, wife being career oriented. One could argue that it is cumulation of many facts, including the abortions allegedly without the consent of the husband, that made the court reach the decision of disallowing the appeal.
The HC found the attitude of the wife towards career objectionable and a threat to a "healthy married life", which could be read in the following words of the court. The court also found and added to mental cruelty that the wife's non belief in Indian social values.
"The High Court also observed that the appellant wanted to pursue her professional career to achieve success. In her written statement itself, she had admitted that she was very much interested in her career; that she was independent since 1979 and she was keen to live independent life."
By affirming the decision of the HC verbatim, the SC endorsed the approach and finding of the HC.
The remaining issue would be, will it be the same if the husband was career oriented and interested in the career!
Chandrabhai K Bhoir v. Krishna Arjun Bhoir. Civil Appeal No. 6575 of 2008 Date of Judgment 7-11-08.
The lagatees though initially raised objections on the probate of the will, reached a compromise and entered into a detailed statement of agreement as to the devolution of the property of the testator. The agreement was not honoured and hence the cause of action. The court had to decide the legal effect of the agreement of the lagatees which incidentally varies the terms of the will.
"A probate when granted binds the whole world. It is a judgment in rem. The Executor, therefore, has to administer the estate of the testator in terms of the Will and not on the basis of the settlement arrived at by and between the parties which would be inconsistent with the terms of the Will. In case of any conflict between the terms of the Will and the settlement, the former will prevail."
Virender Chaudhary v. Bharat Petroleum Corporation & Ors. Civil Appeal Nos. 6567-69 of 2008. Date of Judgment 7-11-08
1. A writ remedy is discretionary in nature
2. Court should be satisfied about the equity of granting a remedy
3. Dealay and latches are relevant factors to be considered
4. Though there is no prescribed period of limitation for filing a writ, it should be filed within a reasonable time.
Saturday, November 8, 2008
Russia Clears OVL’s Imperial Buy
Update on the Challenge of Constitutionality of 73rd and 74th Amendments before the SC The Judge's query about the effect of creamy layer pose an interesting issue.
Obstructing Lawyers a Matter of Concern: Court
Incentives to Employers for Disabled Employment
The Financial Crisis and its Ramifications
Cash to Voters: Cong Leader Gets EC Notice
Petrol Pump Scam: SC Okays 112 Allotments
HC Reserves Order on Sec 377
Friday, November 7, 2008
The question before the Court was whether ethylene and propylene manufactured by the M/s National Organic Chemical Industries Limited and used in its factory in the further manufacture of the same goods would be entitled to the benefit of exemption from excise duty contained in notification no.217/86. Th Court answered the question in the affirmative.
Nod for Government-Industry Tie-up
PIL for a Direction to the Centre and the Maharashtra Government to Detain Raj Thackeray
RBI Will Allow Banks to Unlock Their Corporate Bonds for Cash
Indo-ASEAN FTA- Business Line Editorial
Hindu Editorial on Registration of Marriages
Thursday, November 6, 2008
Wednesday, November 5, 2008
1. The establishment of parallel government
2. Challenges to the federal character of the nation
3. The bearing of coalition government with decisive regional party participation
This commentary also integrates a touch of media criticism.
It is disquieting to find the responses of the Union Minister for Civil Aviation, Praful Patel of NCP hailing from the state and the validation given to it by the Congress Party. This aspect clearly highlights the pressure tactics regional parties play in coalition politics to swing the balance to their undue benefit.
The current incident is a severe blow to the federal nature of the nation where regional identities take on hostile masks. The nepotism of the Lalu Prasad condemnable though does not give justification for revving up regional factionalism. The action of Raj Thackeray is a sheer opportunism of a political bigot.
How legal system is going to react in the present situation will be the crucial aspect, since cases have been slapped on Thackeray. A proper investigation and prosecution will be the touchstone and rekindling of confidence of people in the legal system.