Judgments
Supreme Court
Ali Mohammad Beigh and Ors. v. State of J & K
MANU/SC/0278/2017
21.03.2017
Land Acquisition
When identical lands which are situated nearby are acquired for same purpose, it would not be proper to discriminate between land owners unless there are strong reasons
Instant appeals arise out of common judgment passed by High Court of Jammu and Kashmir affirming compensation of Rs. 2,50,000/- per Kanal awarded to Appellants by Reference Court. Being aggrieved by compensation awarded by Collector, LAWDA, Srinagar, Appellants sought reference to District Judge/Reference Court to establish their claims for enhanced compensation. Reference Court vide judgment held that, Appellants are entitled to get compensation of Rs. 2,50,000/- per Kanal and also awarded compensation to tune of Rs. 10,000/- per Kanal on account of fencing. Feeling aggrieved by compensation awarded by Reference Court, State filed appeal. Claimants have filed Cross Appeal seeking enhancement of compensation to Rs. 4,00,000/- per Kanal. High Court dismissed the State's appeal. Cross Appeal filed by the Appellants was also dismissed by High Court holding that Appellants have not led any evidence which could have been the basis for enhancing compensation to Rs. 4,00,000/- per Kanal as has been done in other cases. Review petition filed by the Appellants also came to be dismissed.
Admittedly, land measuring 65 Kanal ½ Marla of Appellants covered by Reference No. 15/2002 was acquired for purpose of resettlement of Dal dwellers in year 1997-1999. In or about the same time, lands adjacent to the land of Appellants in Chandapora, Bhagichandpora and Pazwalpora were also acquired for same purpose of resettlement of Dal dwellers by various references.
In cases of acquisition of land in Bhagichandpora and Pazwalpora, Reference Court, after referring to evidence adduced by claimants thereon and also after referring to assessment of market rate by Tehsildar at Rs. 4,00,000/- per Kanal, held that land owners are entitled to compensation for acquired land at the rate of Rs. 4,00,000/- per Kanal with solatium (Jabirana) at rate of 15% apart from interest @ 6% per annum on enhanced compensation in excess to sum awarded by Collector, LAWDA.
When lands are more or less situated nearby and when acquired lands are identical and similar and acquisition is for same purpose, it would not be proper to discriminate between land owners unless there are strong reasons. In Union of India v. Bal Ram and Anr., this Court held that if purpose of acquisition is same and when lands are identical and similar though lying in different villages, there is no justification to make any discrimination between land owners to pay more to some of the land owners and less compensation to others. The same was the view taken in Union of India v. Harinder Pal Singh and Ors.
When lands are acquired at the same time and for the same purpose that is for resettlement of Dal dwellers, lands situated in three different villages namely, Chandapora, Bhagichandpora and Pazwalpora, and since the land is similar land, it would be unfair to discriminate between the land owners and other references and Appellants who are the land owners in Reference No. 15 and pay less that is Rs. 2,50,000/- per Kanal to the Appellants and pay more to other land owners that is Rs. 4,00,000/- per Kanal. Impugned judgments of the High Court are set aside by enhancing the compensation to Rs. 4,00,000 per Kanal. I
impugned judgments are set aside and appeals are allowed. It is held that Appellants are at par with other land owners whose lands were acquired in Bhagichandpora and Pazwalpora in other references, and hence they are also entitled to enhanced compensation of Rs. 4,00,000/- per Kanal with 15% solatium (Jabirana) and all other statutory benefits.
Relevant
Union of India v. Harinder Pal Singh and Ors MANU/SC/2507/2005
: (2005) 12 SCC 564
Tags : Acquisition Compensation Validity
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Supreme Court
Brakewel Automotive Components (India) Pvt. Ltd. v. P.R. Selvam Alagappan
MANU/SC/0282/2017
21.03.2017
Civil
Decree of court of law being sacrosanct, execution thereof not to be thwarted on mere asking and on purported grounds having no bearing on executability thereof
The subject matter of impeachment is the order rendered by High Court of Judicature at Madras, thereby rejecting prayer of Appellant/plaintiff/decree-holder to eschew evidence of Respondent/defendant/judgment-debtor in a proceeding under Section 47 of the Code of Civil Procedure, 1908 as well as to dismiss such application as not maintainable. By order impugned, High Court has affirmed determination made to same effect by Executing Court.
Plaint discloses that, Respondent had represented before Appellant to be authorised to act on behalf of both firms and in that capacity had participated in transactions that followed. In that perspective, even assuming that name of one of firms was wrongly mentioned and that in fact, it is wife of Respondent, who is the proprietor thereof, with whom there is no conflict of interest, these 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.
There is no dispute with regard to identity of the firms involved and their representation by the Respondent in the suit transactions. Allegation of fraud and collusion between 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 decree invalid on account thereof. Visibly, Respondent had been the center figure in all transactions between parties on behalf of firms, as stand proved in suit and resistance to execution of decree is neither on behalf of M/s. Kargaappa Auto Products nor its proprietor, his wife contending that the decree is neither binding on the firm nor on her. For all practical purposes, said firm is still being represented by Respondent in subsisting proceedings. The sequence of events discloses that, suit had been instituted in year 2010 and was decreed on 16th October, 2011. Execution Petition though lodged in the year 2014 has not seen the fruit of the decree as on date. Review Petition filed by the Respondent has also been dismissed. Significantly, in all the proceedings initiated by Respondent to stall execution of the decree, same pleas have been reiterated.
It is no longer res integra that an Executing Court can neither travel behind the decree nor sit in appeal over the same or pass any order jeopardizing the rights of the parties thereunder. It is only in limited cases where decree is by a Court lacking inherent jurisdiction or is a nullity that, same is rendered non est and is thus inexecutable. An erroneous decree cannot be equalled with one which is a nullity. There are no intervening developments as well as to render the decree inexecutable.
Section 47 of CPC mandates determination by an executing Court, questions arising between parties or their representatives relating to execution, discharge or satisfaction of decree and does not contemplate any adjudication beyond the same. A decree of court of law being sacrosanct in nature, execution thereof ought not to be thwarted on mere asking and on untenable and purported grounds having no bearing on validity or the executability thereof.
Judicial precedents to the effect that, purview of scrutiny under Section 47 of the Code qua a decree is limited to objections to its executability on the ground of jurisdictional infirmity or voidness is plethoric. This Court, amongst others in Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and Ors. enunciated that only a decree which is a nullity can be the subject matter of objection under Section 47 of the Code and not one which is erroneous either in law or on facts. In Dhurandhar Prasad Singh v. Jai Prakash University and Ors., while dwelling on scope of Section 47 of CPC, it was ruled that the powers of the court thereunder are quite different and much narrower than those in appeal/revision or review. It was reiterated that, exercise of power under Section 47 of the Code is microscopic and lies in a very narrow inspection hole and an executing court can allow objection to executability of the decree if it is found that the same is void ab initio and is a nullity, apart from ground that it is not capable of execution under the law, either because same was passed in ignorance of such provision of law or law was promulgated making a decree inexecutable after its passing. None of the above eventualities as recognised in law for rendering a decree inexecutable, exists in case in hand.
Supreme Court opined that no case has been made out to entertain the remonstrance against the decree or application under Section 47 of CPC. Both Executing Court and High Court, have not only erred in construing scope and ambit of scrutiny under Section 47 of CPC, but have also overlooked fact that, decree does not suffer either from any jurisdictional error or is otherwise invalid in law. Objections to execution petition as well as to the application under Section 47 of CPC filed by Respondent do not either disclose any substantial defence to the decree or testify the same to be suffering from any jurisdictional infirmity or invalidity. Impugned order set-aside. Executing Court would proceed with the execution proceedings and take it to the logical end with utmost expedition.
Relevant
Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and Ors. MANU/SC/0531/1970
: 1971 (1) SCR 66, Dhurandhar Prasad Singh v. Jai Prakash University and Ors. MANU/SC/0381/2001
: AIR 2001 SC 2552
Tags : Decree Execution Proceeding
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High Court of Delhi
Harikrishan Aggarwal v. Indraprastha Power Generation Company Ltd.
MANU/DE/0775/2017
20.03.2017
Service
Once an employee takes voluntary retirement under a VRS Scheme, he cannot claim benefits with respect to past services
By filing present writ petition, Petitioner prays for grant of second Time Bound Promotion Scale (TBPS) dated 23rd July, 1997. However, Petitioner took voluntary retirement under VRS Scheme of Respondent/Employer way back on 29th February, 2004 before filing the present petition.
Once an employee takes voluntary retirement under a VRS Scheme, such an employee thereafter cannot claim benefits with respect to past services with his employer as by taking VRS benefits and receiving a golden handshake lump sum amount, an employee thereafter leaves with all his rights as per the VRS scheme as is stated by Supreme Court in case of A.K.Bindal and Another Vs. Union of India and Others. Supreme Court observed that, main purpose of paying this amount is to bring about a complete cessation of jural relationship between employer and employee. After amount is paid and employee ceases to be under employment of company or undertaking, he leaves with all his rights and there is no question of his again agitating for any kind of his past rights, with his erstwhile employer including making any claim with regard to enhancement of pay scale for an earlier period.
Petitioner who has received VRS benefits under VRS scheme is estopped from filing present petition, by claiming a right which accrued even as per Petitioner assumedly pursuant to TBPS dated 23rd July, 1997 i.e 20 years back resulting in claim being barred by limitation/delay and laches.
In terms of the TBPS scheme, a person gets at best two higher pay-scales of the higher promotion posts, but that is in case that two promotions are not already granted i.e a person who has already received two promotions in his career not entitled to get promotion under TBPS scheme. Since, Petitioner has already received two promotions, he cannot claim benefit of the second stage TBPS. Though Petitioner had to fulfil the eligibility criteria of higher promotion post, and with respect to which TBPS circular dated 23rd July, 1997 is clear, yet Petitioner has not stated as to how Petitioner qualifies for the post of Executive Engineer/Manager (Technical) because Petitioner has not stated what are the eligibility criteria for appointment to post of Executive Engineer/Manager (Technical) and how Petitioner satisfies the same.
Writ petition is grossly barred by limitation and which calls for application of doctrine of delay and laches so far as present writ petition in view of ratio of the judgment of Supreme Court in case of State of Orissa and Another vs. Mamta Mohant. In facts of present case, it is seen that Petitioner even as per Petitioner was entitled to benefit of second TBPS on 15th August, 1999 when allegedly a favorable order was passed in favour of Petitioner, however, this writ petition is filed in year 2017 i.e after 18 years of alleged order by which petitioner is said to have given benefit of second TBPS. Order dated 15th August, 1999 giving benefit of second TBPS to Petitioner was not correct, and Petitioner therefore was rightly not granted benefit of second TBPS under the same, as, Petitioner had already received two promotions, first to post of Superintendent (Technical) on 31st August, 1989 and second to post of Assistant Manager (Technical) on 1st April, 1994. Present petition therefore is grossly barred by delay and laches and is accordingly dismissed by applying ratio in the case of Mamta Mohanty. Facts showed that Petitioner is guilty of deliberate concealment of facts, deliberate mis-statement of facts, setting up a particular case in writ petition but stating differently in list of dates and which also is modified during arguments of second TBPS allegedly granted on 1st April, 1994 being not a TBPS benefit but was a grant of promotion to the Petitioner.
Relevant
A.K.Bindal and Another Vs. Union of India and Others., State of Orissa and Another Vs. Mamta Mohant
Tags : Promotion Eligibility VRS
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High Court of Delhi
M/s Singh Caterers & Vendors & Anr. v. Indian Railways Catering And Tourism Corporation Ltd.
MANU/DE/0774/2017
20.03.2017
Contract
For every minor irregularity, a tender is not to be cancelled
Present writ petition has been filed challenging termination letter passed by Respondent-IRCTC terminating temporary license awarded to Petitioners for management of On Board Catering Services in Train on ground that, Petitioners had failed to accept award of temporary license and had not paid the security deposit and license fee within stipulated time. Respondent in terms of Clause 4.8 of tender document also debarred Petitioners from participating in future projects of Respondent, IRCTC for a period of one year and forfeited Standing Earnest Money Deposit (SEMD) of Rs.3 lakhs.
High Court is of view that cutting/overwriting in present case is not a violation of a mandatory condition and is not material as there is no ambiguity or discrepancy in bid amount. Petitioners bid despite cutting/overwriting clearly mentions the revised bid amount. In fact, revised bid amount has been mentioned clearly both in figures and in words.
It is settled law that for every minor irregularity, a tender is not to be cancelled. Petitioners cannot make a virtue out of their own mistake. However, High Court is in agreement with the learned counsel for Petitioners that punishment of debarment for a period of one year is not proportionate, especially keeping in view fact that the petitioners have been an empanelled contractor/caterer with Railways and is at the moment serving another train by way of On Board Catering Services.
The concept of proportionality of punishment is not unknown to law. The Supreme Court in Kulja Industries Limited vs. Chief General Manager, Western Telecom Project Bharat Sanchar Nigam Limited & Ors., has held permanent debarment from future contracts for all times to come may sound too harsh and heavy a punishment to be considered reasonable. Consequently, the punishment of debarment of Petitioners in the peculiar facts of present case is reduced to nine months w.e.f. 26th September, 2016.
Relevant
Kulja Industries Limited vs. Chief General Manager, Western Telecom Project Bharat Sanchar Nigam Limited & Ors
Tags : Temporary license Termination Validity
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National Consumer Disputes Redressal Commission
Unisource Trading (India) Pvt. Ltd. v. Continental Airline Cargo (United Cargo & Continental Cargo) and Ors.
MANU/CF/0142/2017
15.03.2017
Consumer
If goods are bought or services are hired or availed for commercial purpose, person concerned would not be considered as consumer
Unisource Trading (India) Pvt. Ltd. has filed instant complaint against opposite parties, namely, Continental Airline Cargo and Perfect Cargo Movers Pvt. Ltd. alleging deficiency in service on part of the opposite parties in delivering consignment of garments to purchasers after expiry of due date resulting in loss to complainant. Opposite party in its written statement apart from denying allegations on merits have taken a specific plea that complainant is not a consumer as defined under Section 2(1)(d) of Consumer Protection Act, 1986. As such he has no locus standi to maintain complaint.
Consumer is a person who buys goods or hires or avail of services for consideration whether past, present or to be paid in future. Section 2(1)(d) of Act carves out an exception by providing that if goods are bought or services are hired or availed for commercial purpose, person concerned would not be a consumer. In instant case, admittedly, services of opposite parties were hired for commercial purpose i.e. to deliver goods produced by complainant to purchaser in furtherance of purchase order.
Admittedly, complaint has been filed by Private Limited Company which is not a natural person. Therefore, question of Private Limited Company indulging in commercial activity for earning his livelihood does not arise. Otherwise also, perusal of allegations made in complaint would show that it is case of complainant that complainant is a renowned export/buying house recognized by Ministry of Commerce and Industry and is in business for more than a decade with large number of renowned retailers world wide. Instant complaint has been filed by Logistic Manager as also authorized representative of the complainant company which gives an indication that complainant-company is running large scale business with help of several employees including a Logistic Manager. Present is not a case of self employment but a case of giving employment to several other persons. Therefore, this is not a case which is covered under Explanation to Section 2(1)(d) of the Act which gives restricted meaning to the term 'commercial purpose'.
Instant complaint has been filed on allegations of deficiency in service in respect of services hired or availed for commercial purpose. Therefore, complainant-company is not a consumer as envisaged under Section 2(1)(d) of Act. Consequently, Complainant-Company has no locus standi to file consumer complaint. Consumer complaint is, therefore, dismissed.
Relevant
Section 2(1)(d) of Consumer Protection Act, 1986
Tags : Service Deficiency Locus Standi
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Customs, Excise and Service Tax Appellate Tribunal
Indo Hong Kong Industries (P) Ltd. v. C.C.E. & S.T., Delhi
MANU/CE/0195/2017
15.03.2017
Service Tax
Continuing link of Appellant with equipment and facilities is infrastructural support and covered by definition of 'Support Services of Business or Commerce'
Present appeal against Order-in-Original wherein demand of service tax of Rs. 1,02,21,578.00 along with interest and imposition of equivalent penalty has been confirmed against Appellant. Revenue's stand is that providing of office utilities, equipment and facilities by Appellant to recipient is covered under Business Support Services(BSS), which has been defined under Section 65(104c) of Finance Act 1994. Therefore, department has confirmed liability of service tax in case of amount collected under agreement-2 or 'hiring agreement' by Appellant-Assessee.
Appellant-Assessee provided certain equipments and facilities through a separate hiring agreement to M/s. Alcatel. Revenue is claiming that providing said equipment/facilities are covered under expression 'infrastructural support services' and would become part of definition of 'support services of business or commerce' or Business Support service (BSS), as defined under section 65(104c) of the Finance Act, 1994. Effective demand of service tax against Appellant is for period of 01st May, 2006 to 31st May, 2007 in case of collections made under Agreement-2 for hiring out equipment and utilities, which are termed as 'Infrastructural Support Service' and is said to be covered by Revenue under Business Support Services provided by Appellant-Assessee to M/s. Alcatel.
Dictionary meaning of infrastructure is - basic systems and services that are necessary for an organization to run smoothly. Appellant has provided air-conditioning plants, DG sets, chairs, work station, pantry and kitchen equipment, access control and security system and so on. From prudent persons' point of view, said equipment and facilities are certainly in nature of infrastructure. Appellant has provided them not on sale basis but on hiring basis. It means that there is continuous link of Appellant with these equipment and if during hiring period, there is any break-down in those systems, it would be responsibility of Appellant to get those fixed as per the recipient's wish and requirement. When there is a continuing link and nexus of Appellant with said equipment and facilities it cannot be called that this is not an 'infrastructural support'. And once it is an infrastructural support, fact of providing the said equipment and facilities would be covered by the definition of 'Support Services of Business or Commerce' as defined in Section 65(104c) of Finance Act, 1994 and, therefore, collections made on account of providing these equipment and facilities to M/s. Alcatel would be chargeable to service tax under Section 65(105zzzq) as 'Business Support Service' provided by the appellant to M/s. Alcatel.
As Appellant claims that they have discharged their service tax liability on hiring charges also for period of 01st June, 2007 to 31st March, 2010, tax paid by Appellant can be appropriated by department under service head of 'Business Support Services'. However, as service tax in case of Business Support Service came into effect from 1st March, 2006 though period involved here as w.e.f. 1st May, 2006, Appellant is liable for payment of service tax for services of 'business support service' on hiring charges received from M/s. Alcatel for said period of 1st May, 2006 to 31st May, 2007 along with interest.
Regarding penalty, Appellants stated that they voluntarily made payment of service tax along with interest prior to issue of show cause notice. Appellant, therefore, argues that imposition of penalties against them is not warranted and should be dropped as they bona fidely believe that their services were not taxable. In view of Nair Coal Services Ltd. Vs. CCE Nagpur, it appears that provisions of Section 80 of the Finance Act, 1994 would be applicable in case of Appellant-Assessee. Therefore, the penalties imposed on the Appellant-Assessee under sections 77 and 78 are hereby dropped. Impugned order is modified to above effect and matter is remanded to original adjudicating authority to quantify payment of service tax for period of 1st May, 2006 to 31st May, 2007 along with interest.
Relevant
Nair Coal Services Ltd. Vs. CCE Nagpur dated 27.7.2016 cited as MANU/CM/0722/2016
: 2016 (45) STR 529 (Tri. Mumbai)
Tags : Demand Levy Penalty
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