Judgments
High Court of Bombay
Remio A. Rodrigues v. Goa Glass Fibre Ltd.
MANU/MH/0819/2017
28.04.2017
Labour and Industrial
Tribunal has power to recall witness on ground of mistake of an Advocate
Challenge in present petition is to order, by which learned Presiding Officer of Industrial Tribunal dismissed Petitioner's application for recall of a witness for purpose of cross-examination. It is submitted that under Section 11(3) of Industrial Disputes Act, 1947, Tribunal has power to recall a witness.
Application for recall is required to be allowed in peculiar facts and circumstances of present case. Division Bench of Madhya Pradesh High Court in case of Karam Chand Thapar and Brothers (Pvt.) Ltd., has held that, Sub-section (3) of Section 11 of said Act confers upon Tribunal same powers as are vested in a Civil Court under Civil Procedure Code in matter of enforcing the attendance of a person and examining him on oath. This power includes power to recall a witness.
Blanket proposition in impugned order that, mistake of an Advocate can never be a ground for recall of witness, cannot be accepted. Presiding Officer of Industrial Tribunal is right that, power of recall must be sparingly exercised and that too for a good reason. In case of Jodhpur Gums & Chemicals Pvt. Ltd. v. Punjab National Bank and others, power of recall of a witness was exercised, where there was an oversight of Advocate of Plaintiff in matter of full and complete examination of witness.
In facts of present case, all that Petitioner, through his Advocate seeks to do, is to cross-examine witness as regards authority to take action against employees. The witness in present case had submitted that, he had necessary authority. It was pointed out that, factum of making of such statement escaped her and, therefore, no questions were posed as regards this aspect. Only a general suggestion was put to witness that, he lacks the authority. In a situation of this nature, fact that Petitioner is a workman, who is pitted against employer Company, an additional opportunity, as applied for by Petitioner, was required to be granted. Impugned order nowhere states that, cross-examination on this point would be irrelevant or impermissible. Impugned order proceeds on basis that, Tribunal has no power to recall and in any case, power to recall cannot be exercised on ground of mistake of Advocate for Petitioner. Both these grounds, appear to be widely stated and, therefore, cannot be accepted as a rule. Therefore, in facts and circumstances of present case, impugned order is set aside. Petitioner's application for recall of witness for limited cross-examination, as indicated in application for recall is allowed.
Relevant
Karam Chand Thapar and Bros. (Private), Ltd. vs. Workmen of North Chirimiri Colliery and Ors. MANU/MP/0094/1967
; Jodhpur Gums & Chemicals Pvt. Ltd. vs. Punjab National Bank and Ors. MANU/RH/0173/1999
Tags : Cross-examination Recall Witness
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Supreme Court
State of Uttar Pradesh and Ors. v. Sunil and Ors.
MANU/SC/0557/2017
02.05.2017
Criminal
Direction to give foot-prints for corroboration of evidence is not violative of protection guaranteed under Article 20 (3) of Constitution
Present appeals is against judgment passed by High Court, whereby judgment passed by Additional Sessions Judge, was set aside and Accused-Respondent was acquitted of offence punishable under Section 302 read with Section 34 of Indian Penal Code,1860. Capital Sentence Reference for confirmation of death sentence was consequently rejected. Question involved in present case is whether compelling an Accused to provide his fingerprints or footprints etc. would come within purview of Article 20(3) of Constitution of India i.e. compelling an Accused of an offence to be a "witness" against himself.
Article 20 of Constitution, provides for protection in respect of conviction for offences. Article 20(3) provides that, no person Accused of any offence shall be compelled to be a witness against himself. In State of Bombay v. Kathi Kalu Oghad and Ors., it was held that, to be a witness' may be equivalent to 'furnishing evidence' in sense of making oral or written statements, but not in larger sense of expression so as to include giving of thumb impression or impression of palm or foot or fingers or specimen writing or exposing a part of body. Taking of impressions or parts of body of an Accused person very often becomes necessary to help investigation of a crime. It person against being compelled to incriminate himself, as to arm agents of law and law courts with legitimate is as much necessary to protect an Accused powers to bring offenders to justice. Further, it was observed that, giving of finger impressions or of specimen writing or of signatures by an Accused person, though it may amount to furnishing evidence in larger sense, is not included within expression 'to be a witness. Any person can be directed to give his foot-prints for corroboration of evidence but same cannot be considered as violation of protection guaranteed under Article 20 (3) of Constitution of India. It may, however, be noted that, non-compliance of such direction of Court may lead to adverse inference, nevertheless, same cannot be entertained as sole basis of conviction.
In a case, where there is no direct witness to prove prosecution case, conviction of Accused can be made on basis of circumstantial evidence provided chain of the circumstances is complete beyond all reasonable doubt. It was observed by this Court in case of Prakash v. State of Karnataka, Relevant circumstances should not be looked at in a disaggregated manner but collectively. Still, this does not absolve the prosecution from proving each relevant fact. In a case of circumstantial evidence, each circumstance must be proved beyond reasonable doubt by independent evidence and the circumstances so proved, must form a complete chain without giving room to any other hypotheses and should be consistent with only the guilt of the accused.
It has also been the observation of this Court in Musheer Khan v. State of M.P., apropos the admissibility of evidence in a case solely based upon circumstantial evidence that Section 27 of Evidence Act starts with the word 'provided'. Therefore, it is a proviso by way of an exception to Sections 25 and 26 of the Evidence Act. If the facts deposed under Section 27 are not voluntary, then it will not be admissible, and will be hit by Article 20(3) of the Constitution of India. Privy Council in Pulukuri Kottaya v. King Emperor held that Section 27 of the Evidence Act is not artistically worded but it provides an exception to the prohibition imposed under the preceding sections. However, the extent of discovery admissible pursuant to the facts deposed by Accused depends only to the nature of the facts discovered to which the information precisely relates.
Basic foundation of prosecution had crumbled down in present case by not connecting Respondent with incident in question. When basic foundation in criminal cases is so collapsed, circumstantial evidence becomes inconsequential. In such circumstances, it is difficult for Court to hold that, a judgment of conviction could be founded on sole circumstance that, recovery of weapon and other articles have been made. Prosecution has miserably failed to connect occurrence with Respondent herein. Resultantly, judgment passed by High Court setting aside of conviction order passed by trial Court is hereby upheld.
Relevant
State of Bombay v. Kathi Kalu Oghad and Ors. MANU/SC/0134/1961
, Prakash v. State of Karnataka MANU/SC/0313/2014
, Lakhjit Singh v. State of Punjab MANU/SC/0905/1994
, Pulukuri Kottaya v. King Emperor MANU/PR/0049/1946
,
Musheer Khan v. State of M.P. MANU/SC/0065/2010
Tags : Acquittal Validity Circumstantial evidence
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Supreme Court
Chilamkurti Bala Subrahmanyam v. Samanthapudi Vijaya Lakshmi and Ors.
MANU/SC/0558/2017
02.05.2017
Property
Sale could be set aside only when material irregularity or fraud results in causing substantial injury to judgment-debtor
Instant appeal is filed by auction purchaser against final judgment passed by High Court of Judicature, Andhra Pradesh whereby High Court allowed appeal filed by judgment debtor-Respondent No. 1 herein and set aside order passed by Senior Civil Judge, dismissing application filed by judgment debtor under Order 21 Rule 90 read with 151 of Code of Civil Procedure, 1908 (CPC). Respondent No. 1, in her application for setting aside sale, had mainly raised four objections. Firstly, clear 15 days' notice was not given for sale of properties as required under Rules. Secondly, valuation of property was not properly mentioned in concerned documents so as to enable parties to know its proper valuation prevailing on date of sale. Thirdly, market value of property on date of auction was more than price actually fetched in auction, and fourthly, no proper publication including beating of drum was made before date of auction due to which there was less participation of the bidders in the auction sale. Executing Court dealt with all four objections with reference to record of proceedings and found as a fact that, none of objections had any merit. High Court reversed the judgment of Executing Court.
Reasoning and conclusion arrived at by Executing Court deserves to be restored as against that of High Court in impugned order. No case was made out by judgment debtor for setting aside of sale of property in question on ground of committing any material irregularity or fraud in publishing or in conducting sale so as to enable Court to invoke its powers under Order 21 Rule 90 (2) of CPC.
Proper publicity was given for auction sale in papers so also by beat of drums pursuant to which as many as seven bidders including Appellant herein participated in auction sale. Had there been no publicity, it would not have been possible for seven persons to participate in auction proceedings.
Details of valuation of property were duly mentioned, namely, decree holder's valuation at Rs. 2,75,000/- likewise, Amin's valuation at Rs. 4 lacs whereas property was sold in auction for Rs. 7,50,000/-. In this view of matter, it could not be said that, bidders did not know valuation or/and that it was not mentioned in auction papers. Judgment debtor did not adduce any evidence nor brought any bidder to purchase property for a higher price than purchase bid (Rs. 7,50,000/-) except to say in application that, value of property was between Rs. 12 lakhs to Rs. 14 lakhs. This objection has no substance for want of any evidence.
There was adequate publicity given with aid of beat of drums in locality. It was proved with record of executing Court as was rightly held by executing Court and lastly, a clear 15 days' notice was given for auction sale fixed for 17th November, 1999 when counted from 5th October, 1999. 15 days have to be counted from 5th October, 1999 because it is on this date the order was issued as contemplated under Order 21 Rule 64 of CPC for proclamation of sale fixing date of sale as 17th November, 1999. Executing Court, therefore, substantially and in letter and spirit followed procedure prescribed under Order 21 Rules 64 and 66 of the CPC while conducting sale of property in question.
It is not the material irregularity that alone is sufficient for setting aside of sale. Judgment debtor has to go further and establish to satisfaction of Court that, material irregularity or fraud, as case may be, has resulted in causing substantial injury to the judgment-debtor in conducting sale. It is only then sale so conducted could be set aside under Order 21 Rule 90(2) of CPC. Such is not the case here.
Supreme Court is of view that, none of objections raised by Respondent No. 1 had any merit and nor any of objections constituted any kind of material irregularities so as to enable Court to set aside sale under Order 21 Rule 90(2) of CPC. Impugned order is set aside and order of Executing Court restored.
Tags : Auction Sale Validity
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High Court of Allahabad
Jan Hitai v. State of U.P. and Ors.
MANU/UP/0929/2017
01.05.2017
Election
A disqualification can be incurred on happening of a particular contingency
Present writ petition has been filed questioning constitutional validity of Uttar Pradesh State Legislative (Prevention of Disqualification) (Amendment) Act, 2006 and to quash opinion rendered by Election Commission of India dated 3rd April, 2006 and order of Governor dated 21st April, 2006 in respect of disqualification of Respondent No. 4, a member of the then U.P. Legislative Assembly as being violative of fundamental rights and constitutional guarantees under Constitution of India. It is alleged that, Respondent No. 4 was disqualified as a member of the Legislative Assembly of the Legislative Council of the State as he was holding an office of profit.
Judgment in case of U.C. Raman v. P.T.A. Rahim, explains that, office must yield pecuniary gain in addition to mere compensatory allowance but it is enough if such pecuniary gain is receivable in connection of an office even though it may not have been actually received. It is in this context that, it was held that, office of Chairperson of Haj Committee was not an office of profit.
Constitutional validity of Amending Act has been upheld in case of Consumer Education and Research Society v. Union of India and Ors. clearly holding that, Amending Act retrospectively removed disqualification and consequentially even if a person was holding an office of profit, he stood released from any such disqualification retrospectively. Respondent No. 4 had not been declared to be disqualified. In view of stated position of law in aforesaid decision of Apex Court in a challenge raised to Amending Act on ground of Article 14 of Constitution or a discrimination between two classes of members is of no avail, as, if legislature in its wisdom has granted an exemption to a set of elected members of Assembly or Council from being treated as disqualified, they form a separate class and their comparison with other M.L. As. and M.L. Cs. so as to infer disqualification does not arise. A disqualification can be incurred on a happening of a particular contingency. In such circumstances, same having a vital consequential effect has to be applied strictly and cannot be made basis of argument of parity as urged by learned counsel for Petitioner.
Challenge raised, therefore, does not appear to be founded on any correct logic and even otherwise since, tenure of Assembly in which Respondent No. 4 was elected has also run out and he has ceased to be Chairman of U.P. Jal Nigam, there is no occasion for this Court now to disqualify him and consider granting any relief as prayed for.
Relevant
U.C. Raman v. P.T.A. Rahim,MANU/SC/0674/2014
, Consumer Education and Research Society v. Union of India and Ors. MANU/SC/1499/2009
Tags : Enactment Validity Disqualification
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High Court of Delhi
Dinesh Kumar v. Mahngu Ram and Ors.
MANU/DE/1188/2017
01.05.2017
Property
Making of construction by spending of moneys would not make Appellant anything more than a licensee
Present Regular Second Appeal under Section 100 of Code of Civil Procedure, 1908 (CPC) is filed by Defendant in suit impugning concurrent judgments of Courts below; of trial Court and First Appellate Court; by which Courts below have decreed suit for possession with respect to suit property. Appellant/defendant did not dispute that, suit property was owned by Plaintiff and that he came in suit property as a licencee of Plaintiff, however, Appellant/Defendant claimed that, he had spent a sum of Rs. 3 lacs in making construction on property and therefore, he had become the owner thereof.
Original Plaintiff had expired during pendency of suit and therefore, present Respondent No. 1 was substituted as Plaintiff in place of Original Plaintiff in terms of registered Will. There was no dispute that, Plaintiff was owner of suit property. Courts below have rightly held that, making of construction by spending of moneys by Appellant/defendant will still not make Appellant/Defendant anything more than a licensee.
Respondent No. 1 has proved the Will by calling two attesting witnesses. In cross-examination, both witnesses have stood their ground and denied that, they were not called by Original Plaintiff. Attesting witnesses also denied that, Will was forged and fabricated by them in collusion with Respondent No. 1. Attesting witnesses also reiterated their statement in examination-in-chief. Therefore, Court opined that, Respondent No. 1 has succeeded in proving registered Will in his favour.
There is also no reason to doubt Will in favour of Respondent No. 1 as bad relations between Appellant/Defendant and late Plaintiff Ram stood well established on record. Fact that, Original Plaintiff was not living in suit property, and Appellant/Defendant was living in suit property is in proof itself of bad relations of Plaintiff. There was no reason why Original Plaintiff would not execute Will in favour of Respondent No. 1 who was said to be taking care of Original Plaintiff in his old age and after death of wife.
It is not necessary that, attesting witness to the Will, PW-3 should have personally known Respondent No. 1, Sh. Pawan Kumar, as, this attesting witness knew Original Plaintiff and has deposed with respect to execution and attestation of Will as also the fact that, he was called by late plaintiff Original Plaintiff for attesting Will. High Court observed that, no substantial question of law arises for present Regular Second Appeal to be entertained under Section 100 of CPC and accordingly, dismissed appeal.
Tags : Property Possession Will
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National Green Tribunal
Nigam Priyae Saroop v. State of Jammu and Kashmir and Ors.
MANU/GT/0037/2017
01.05.2017
Environment
NGT has jurisdiction to deal with substantial question arises out of enforcement of enactments given in Schedule 1 of NGT Act, 2010
Applicant after being shocked on reading the news item, reported in Daily Excelsior Jammu dated 17th February, 2016 giving details of transfer made by State Government of 159 hectares of forest land to Higher Education Department for establishment of Indian Institute of Technology (IIT) in Nagrota area of Jammu district, has filed this Original Application under Sections 14, 15 and 18 of National Green Tribunal Act, 2010. Case of Applicant is that, impugned orders, administrative in nature, have been issued by Respondents effecting transfer of forest land, removal of forest trees in habitat of forest are illegal, without authority of law and malafide in accordance with facts and circumstances of case. First and foremost question involved is while the matter relates to State of Jammu & Kashmir Forest (Conservation) Act, 1997, whether this Tribunal has jurisdiction to adjudicate upon the present case.
State Government undertook the procedure, as prescribed under law, to obtain requisite forest clearance. Ownership of land was under Forest Department and therefore indent dated 28th July, 2015 for forest clearances was placed under user agency i.e. Higher Education Department, with Principal Chief Conservator of Forest, Government of Jammu & Kashmir. Forest Department had issued sanction to use land vide order dated 11th February, 2016 after duly complying with procedure contemplated under Section 2 of Jammu & Kashmir Forest (Conservation) Act, 1997. Ministry of Environment and Forest, Respondent No. 9, in its reply to the application has also submitted that it is the Jammu & Kashmir Forest (Conservation) Act, 1997 applicable for project in question, which deals with demarcation, diversion of forest land or use of forest land for non-forest purpose.
As per provisions of NGT Act, 2010 this Tribunal has jurisdiction where any question arises as to implementation of enactment which has been enumerated in Schedule I. Tribunal has jurisdiction over civil cases where a substantial question relating to environment is involved which arises out of enforcement of seven enactments as given in Schedule. Tribunal is to settle disputes, under Section 14 of Act, in all civil cases where substantial question relating to environment is involved. Conjuncture 'and' used in later part of provision has significance. Civil cases involving substantial question relating to environment must be one which arises out of implementation of enactments given in Schedule namely; Water (Prevention and Control of Pollution) Act, 1974, Water (Prevention and Control of Pollution) Cess Act, 1977, Forest (Conservation) Act, 1980, Air (Prevention and Control of Pollution) Act, 1981, Environment (Protection) Act, 1986, Public Liability Insurance Act, 1991 and Biological Diversity Act, 2002.
This view finds support in principle of law laid down by Supreme Court in case of Bhopal Gas Peedith Mahila Udyog Sangathan versus Union of India holding that provisions and scheme of National Green Tribunal Act, 2010 particularly Sections 14, 29, 30 and 398(5) of Act, it can safely be concluded that, environmental issues and matters covered under NGT Act, Schedule I should be instituted and, litigated before NGT. In case of T.N Godavarman Thirumulpad v. Union of India, which is a case of great significance relating to the protection and conservation of forest throughout the country, Supreme Court of India heard Central Government as well as Governments of all States and in so far as State of Jammu & Kashmir is concerned it had issued directions, that, any felling of trees in forest or otherwise or any clearance of land for execution of projects, shall be in strict compliance with the Jammu & Kashmir Forest Conservation Act, 1990 and any other laws applying thereto. However, any trees so felled, and the disposal of such trees shall be done exclusively by State Forest Corporation and no private agency will be permitted to deal with this aspect. This direction will also cover the submerged areas of the THEIN Dam.
Therefore, controversy raised herein is in respect of transfer of land for project in question which is very much part of State of Jammu and Kashmir. On count that, State of Jammu & Kashmir Forest Act 1990 not being one of enactments mentioned in Schedule I of the Act of 2010, Tribunal does not have jurisdiction to adjudicate present controversy as it does not fall within purview and scope of Section 14 of NGT Act, 2010 so as to settle dispute herein. Controversy of transfer of forest land for non-forest purpose on proposal of Forest Advisory Committee, and order passed by State of Jammu & Kashmir whereby use of 159 hectares of land has been sanctioned for construction of the institution for Higher Education Department in Jammu Forest Division, cannot be adjudicated by this Tribunal on account of lack of statutory jurisdiction. Consequently, this Original Application is dismissed.
Relevant
Bhopal Gas Peedith Mahila Udyog Sangathan versus Union of India MANU/SC/0642/2012
: (2012) 8 SCC 326, T.N Godavarman Thirumulpad v. Union of India MANU/SC/0278/1997
: (1997) 2SCC 267
Tags : Forest land Transfer Jurisdiction
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