"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Wednesday, March 18, 2009

Recent Judgments

Bridging Natural Justice to Legal Justice
Uma Nath Pandey and Ors. v. State of U.P. and Anr. CRIMINAL APPEAL NO. 471 OF 2009. Date of Judgment 16-03-09
Justice Arijith Pasayath qualifies natural justice as common sense justice in this judgment and observes that natural justice and legal justice cannot remain as separate water tight compartments. Lack of adequate notice was the contention in this case and the court finds violation of the principles of natural justice. The matter is remitted back to the HC.
Justice Pasayath indulges in a discussion about the principles of natural justice in the judgement; tracing from magna carta and then anchoring it on judicial decisions. He raises the issue of "useless formality theory" and embarks upon a surrogate discussion about it in paragraph no .18. He too, like his predecessor whom he has quoted, leaves it open.

Requisitioning of property should not be acquisition through backdoor

Kerala State Cashew DevelopmentCorporation v. Shahal Hassan Mussaliar & Anr. CIVIL APPEAL NO.8247 OF 2001. Date of Judgment 16-03-09

Kerala Government's action of requisitioning the Cashew Factories of the state by the Kerala Cashew Factories (Requisitioning) Act, 1979 and perpetuating the same by a later amendment Act in 1985, is challenged in this case. The initial Act was for requisitioning the factories for a period of 5 years. The amendment Act authorised the state government to extend the lease indefinitely, by instalment of five years.

The court relied on H.D. Vora v. State of Maharashtra (AIR 1984 SC 866) and found that there is a difference between acquisition and requisition. The state Act needs to tested for its constitutionality as per the court. Finds colourable exercise of power by the state, fraud on the power and back door appropriation of property, in tune with the precedents. The court refused to interfere with the judgment of the HC and dismissed the appeal.

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