High Court of Orissa

G. Basavaiah V. Samir Kumar Pattnaik

MANU/OR/0367/2017

10.07.2017

Civil

When there has been devolution of interest during pendency of suit, suit may, by leave of Court, be continued by or against persons upon whom such interest has devolved

By present application, challenge is made to order passed by District Judge, whereby appellate Court rejected application of Petitioner under Order XXII Rule 10 of Code of Civil Procedure, 1908 (C.P.C.) to substitute him in place of deceased-Appellant. During pendency of suit, Petitioner had purchased suit land from Defendant-appellant by means of a registered sale deed dated 19th April, 2010 and mutated same in his name. After death of Defendant-appellant, he filed an application under Order XXII Rule of 10 CPC to allow him to substitute in place of deceased-Appellant and continue appeal. According to him, since legal representatives of deceased-Appellant have not taken steps for substitution, he is seriously affected. His interest has devolved after him. Respondent filed objection to the same stating therein that, trial Court had passed order of status quo. Appellate court held that, alleged sale deed executed in favour of Petitioner by Defendant can be treated as non-existent. Petitioner has no right to be substituted in place of deceased-Appellant and rejected the petition.

Apex Court in case of Dhurandhar Prasad Singh vs. Jai Prakash University and others, held that, Order XXII Rule of 10 of CPC, provides for cases of assignment, creation and devolution of interest during pendency of a suit other than those referred to in foregoing Rules and is based on principle that, trial of a suit cannot be brought to an end merely because interest of a party in subject matter of suit is devolved upon another during its pendency but such a suit may be continued with leave of Court by or against person upon whom such interest has devolved. But, if no such a step is taken, suit may be continued with original party and person upon whom interest has devolved will be bound by and can have benefit of decree, as case may be, unless it is shown in a properly constituted proceeding that, original party being no longer interested in proceeding did not vigorously prosecute or colluded with adversary resulting in decision adverse to party upon whom interest had devolved.

Legislature while enacting Rules 3, 4 and 10 has made clear-cut distinction. In cases covered by Rules 3 and 4, if right to sue survives and no application for bringing legal representatives of a deceased party is filed within time prescribed, there is automatic abatement of suit and procedure has been prescribed for setting aside abatement under Rule 9 on grounds postulated therein. In cases covered by Rule 10, legislature has not prescribed any such procedure in event of failure to apply for leave of Court to continue proceeding by or against person upon whom interest has devolved during pendency of a suit which shows that, legislature was conscious of this eventuality and yet, has not prescribed that, failure would entail dismissal of suit as it was intended that, proceeding would continue by or against original party although, he ceased to have any interest in subject of dispute in the event of failure to apply for leave to continue by or against the person upon whom the interest has devolved for bringing him on record.

Under Rule 10, Order 22 of CPC, when there has been a devolution of interest during pendency of a suit, suit may, by leave of Court, be continued by or against persons upon whom such interest has devolved and this entitles, person who has acquired an interest in subject-matter of litigation by an assignment or creation or devolution of interest pendente lite or suit or any other person interested, to apply to Court for leave to continue suit.

In Amit Kumar Shaw and another vs. Farida Khatoon and another, apex Court held that, application under Order XXII Rule 10 of CPC, can be made to appellate Court even though devolution of interest occurred, when case was pending in trial Court. It further held that, under Order XXII, Rule 10 of CPC, no detailed inquiry at stage of granting leave is contemplated. Court has only to be prima facie satisfied for exercising its discretion in granting leave for continuing suit by or against person on whom interest has devolved by assignment or devolution. Question about existence and validity of assignment or devolution can be considered at final hearing of proceedings. An alienee pendente lite is bound by final decree that may be passed in suit. Such an alienee can be brought on record both under this Rule as also under Order 1 Rule 10. Since, under doctrine of lis pendens, a decree passed in suit during pendency of which a transfer is made binds transferee, his application to be brought on record should ordinarily be allowed. Doctrine of lis pendens applies only where lis is pending before a Court. Further, pending the suit, transferee is not entitled as of right to be made a party to suit, though Court has discretion to make him a party. But transferee pendente lite can be added as a proper party, if his interest in subject matter of suit is substantial and not just peripheral. A transferee pendente lite to the extent, he has acquired interest from Defendant is vitally interested in litigation, whether transfer is of the entire interest of Defendant; latter having no more interest in property may not properly defend suit. He may collude with Plaintiff.

Though Plaintiff is under no obligation to make a lis pendens transferee a party; under Order XXII Rule 10 of CPC, an alienee pendente lite may be joined as party. Court has discretion in matter which must be judicially exercised and an alienee would ordinarily be joined as a party to enable him to protect his interests. A transferee pendente lite of an interest in immovable property is a representative-in-interest of party from whom he has acquired that interest. He is entitled to be impleaded in suit or other proceedings where transferee pendente lite is made a party to litigation; he is entitled to be heard in matter on merits of case. Order passed by District Judge is quashed. Application filed by Petitioner under Order XXII Rule 10 of CPC is allowed.

Relevant

Dhurandhar Prasad Singh vs. Jai Prakash University and Ors. MANU/SC/0381/2001
; Amit Kumar Shaw and Anr. vs. Farida Khatoon and Anr. MANU/SC/0284/2005

Tags : Interest Devolution Substitution Entitlement

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Customs, Excise and Service Tax Appellate Tribunal

CCE Udaipur v. Balaji Builders & Contractors

MANU/CE/0490/2017

10.07.2017

Service Tax

Handling of transportation of goods, by itself unless it is an organised activity would not fall within definition of cargo handling service

In facts of present case, Respondent was engaged in providing services relating to shifting and loading of railway sleepers to M/s. Rural Engineering Pvt. Ltd. Said activity involves shifting of sleepers from water tank to the store yard and later on loading them in trucks. Respondent was paid Rs. 80 per sleeper in rendering said services. Alleging that, services rendered by Appellant fall under purview of "cargo handling services', demand notice was issued. On adjudication, demand was confirmed with interest and penalty. Aggrieved by said order, Respondent filed appeal with Commissioner (A) who allowed Appeal of Respondent. Aggrieved by said order, Revenue is in appeal. Short question involved in present case for determination is whether shifting and loading of railway sleepers within factory premises of M/s. Rural Engineering Pvt. Ltd. a service provided by Respondent would be chargeable to service tax under category of 'cargo handling services'.

Issue in present case, is similar in facts and circumstances in case of Manoj Kumar wherein Allahabad High Court analyzed definition of cargo handling and dictionary meaning of cargo. Section 65(23) of Finance Act, 1994 defines "cargo handling service as loading, unloading, packing or unpacking of cargo and includes cargo handling services provided for freight in special containers or for non-containerized freight, services provided by a container freight terminal or any other freight terminal, for all modes of transport and cargo handling services incidental to freight, but does not include handling of export cargo or passenger baggage or mere transportation of goods."

In common parlance 'cargo' means load, which is to be carried by ship, aeroplane, rail or truck. Handling of transportation of goods, by itself unless it is an organised activity, which is connected with carrying cargo (load) by ship, aeroplane, rail or truck is involved would not fall within the definition of cargo handling service. Definition specifically excludes handling of export cargo or passenger baggage or mere transportation of goods. Recently, this Tribunal in case of Khushdil Singh Vs. CCE Jaipur followed principle laid down in case of Manoj Kumar. Consequently, impugned order is upheld and appeal filed by Revenue is dismissed.

Relevant

Commissioner Central Excise vs. M/s. Manoj Kumar and Arvind Kumar MANU/UP/2137/2012

Tags : Demand Confirmation Validity

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Supreme Court

Vithal Rao and Ors. Vs. The Special Land Acquisition Officer

MANU/SC/0757/2017

07.07.2017

Land Acquisition

Courts can always apply reasonable amount of guesswork to balance equities in order to fix a just and fair market value

Present appeals are filed by land owners against final judgment and order passed by High Court of Karnataka, whereby High Court allowed appeals in part and modified Award dated 24th August, 2012 passed by Court of Senior Civil Judge, Mudhol and re-determined compensation at Rs. 13,93,920/- per acre as against Rs. 6,75,000/- per acre with all statutory benefits as envisaged under Section 23 of Land Acquisition Act, 1894.

Court in several cases have also laid down that, while determining true market value of acquired land and especially when acquired land is a large chunk of undeveloped land, it is just and reasonable to make appropriate deduction towards expenses for development of acquired land. It has also been consistently held that, at what percentage deduction should be made vary from 10% to 86% and, therefore, deduction should be made keeping in mind nature of land, area under acquisition, whether land is developed or not and, if so, to what extent, purpose of acquisition, etc. It has also been held that, while determining market value of large chunk of land, value of smaller piece of land can be taken into consideration after making proper deduction in the value of lands and when sale deeds of larger parcel of land are not available. This Court has also laid down that, Court should also take into consideration potentiality of acquired land apart from other relevant considerations. This Court has also recognized that, Courts can always apply reasonable amount of guesswork to balance equities in order to fix a just and fair market value in terms of parameters specified under Section 23 of Act.

In present case, land acquired in question is a large chunk of land (30 acres approx.). Purpose of acquisition is "Establishment of Rehabilitation Centre". It is situated within municipal limits. Its one side is abutting main district road (MDR). It is not fully developed. Some buildings have come up in its near proximity. Appellants (land owners) have not filed any exemplar's sale deeds relating to large piece of land sold in acres to prove market value of acquired land. All sale deeds relied on by Appellants pertain to very small piece of land, whereas land acquired, is quite large (30 acres). Small parcel of lands sold under these sale deeds are situated in near proximity of acquired land and some were part of acquired land. All eleven sale deeds are held bona fide and proper. These sale deeds, therefore, can be relied on for determining proper market value of acquired land.

Since, acquired land is not fully developed and it requires for construction of rehabilitation centre, it would be just, fair and proper to deduct 40% of amount towards development charges out of average price worked out. Such deduction is permissible in law. Impugned order is modified to extent that, Appellants are held entitled to claim compensation for acquired land at rate of Rs. 60/- per sq ft. As a consequence, Appellants are held entitled to claim all statutory compensation accordingly.

Tags : Acquisition Compensation Re-determination Validity

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High Court of Calcutta

Amit Mondal Vs. Pannalal Das and Ors.

MANU/WB/0471/2017

06.07.2017

Contract

For specific performance of contract, Plaintiff is required to prove readiness and willingness to perform his part of obligations under contract

Present First Appeal is against judgment and decree passed by Civil Judge. By impugned judgment, Plaintiff's suit for specific performance of contract was decreed in part. Relief for specific performance of contract prayed for by Plaintiff, was refused by Trial Judge on ground that, registered agreement for sale which was sought to be enforced by Plaintiff by said suit was not signed by Plaintiff (purchaser). Trial Judge held that, such a unilateral agreement for sale is incapable of enforcement through a suit for specific performance of contract.

There are various modes of creation of contract. A contract may be concluded orally, a contract may be concluded by exchange of letters, a contract may be concluded by signing a document by parties to contract and exchange thereof between them. Each of such contracts is enforceable by a suit for specific performance of contract provided it is legal and is not opposed to public policy. Once the vendor executes such a contract containing terms and conditions on which he agreed to transfer his property to purchaser and purchaser acting upon said agreement pays earnest money to vendor for purchasing suit property, such payment of earnest money to a vendor and acceptance thereof by vendor amounts to conclusion of contract between parties.

Original registered agreement for sale which was admittedly executed by Defendant No. 1 (vendor) was received by Plaintiff from office of concerned Registrar. Receipt of original document by Plaintiff from office of Registrar is also an instance of acceptance all terms and conditions on which vendor agreed to sale his property to purchaser. Thus, here is the case where contract was concluded between Plaintiff and Defendant No. 1 and such contract, is capable of enforcement through a suit for specific performance of contract. Relying upon decision of Supreme Court in case of Aloka Bose Vs. Parmatma Devi & Ors., Court held that, agreement for sale which was sought to be enforced by Plaintiff through said suit, is capable of enforcement through a decree of specific performance of contract.

Section 16(c) of the Specific Relief Act, provides that, in order to get a decree for specific performance of contract, Plaintiff is not only required to aver his readiness and willingness to purchase suit property all throughout in his pleadings but he is also required to prove his readiness and willingness to perform his part of obligations under contract all throughout in course of trial of suit. On examination of evidence of Plaintiff, Court found that, Plaintiff has succeeded in proving that, he was and/or is all throughout ready and willing to perform his part of the contract. Not only, he has proved that, he requested Defendant to execute deed of sale on tender of balance consideration money but he has also proved that, he sent a lawyer's notice requesting Defendant No. 1 to execute sale deed in favour of Plaintiff on acceptance of balance consideration money. Thus, Court held that, Plaintiff succeeded in proving that, he was ready and/or is willing to perform his part of the contract all throughout. As such, there is no reason to deny relief which Plaintiff has claimed for specific performance of contract in said suit.

However, agreement for sale was executed between parties on 31st December, 2001. Thus, litigation continues for about 16 years in different Courts. Valuation of the property has substantially been increased by this time. Valuation of suit property as assessed by Directorate, Registration and Stamp Revenue, Government of West Bengal shows that, valuation of the suit property will be about Rs. 16,04,163/-. Thus, by relying upon said assessment made by Government department, Court directed Defendant No. 1 to execute and registering proper deed of conveyance in favour of Plaintiff for conveying his right title and interest in favour of Plaintiff within one month from date of deposit of balance consideration money i.e., Rs. 12,89,163.00 (Rs. 16,04,163.00 - Rs. 3,15,000.00) and such deposit should will be made by Plaintiff with Court within a month from date. It is further directed that, delivery of possession the suit property will be made by Defendant No. 1 to Plaintiff simultaneously with execution and registration of said deed of sale. In case, Defendant No. 1 fails and refuses to comply with this direction even after Plaintiff fulfils conditions imposed upon him hereinabove, Plaintiff will get this decree enforced through execution of the decree through Court.

Decree which was passed by trial Court for refund of earnest money, was contrary to provision of Section 22 of Specific Relief Act, 1963 as no relief for refund of earnest money was prayed by Plaintiff in the suit. Said part of decree of Trial Judge is thus not retainable and is thus set aside. Appeal disposed off.

Relevant

Alka Bose vs. Parmatma Devi and Ors. MANU/SC/8475/2008

Tags : Agreement Specific Performance Refusal Validity

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High Court of Madras

Dharmaraj v. State

MANU/TN/1950/2017

06.07.2017

Criminal

Burden is on accused to prove facts which is within his knowledge

Appellant in present appeal is sole accused in Sessions Case, on file of Sessions Judge. He stood charged for an offence under Section 302 of Indian Penal Code, 1860 (IPC). Trial Court, by judgement convicted Appellant/accused for offence under Section 302 of IPC, and sentenced him to undergo life imprisonment for each count and to pay a fine. Trial Court also directed sentences imposed on Appellant/accused to run consecutively. Challenging said conviction and sentence, Appellant/Accused is before this Court with present appeal.

It is a case of triple murder. Deceased are closely related to Accused. So far as motive for murder is concerned, P.W.1 has stated that, accused wanted to marry Deceased-3, for which Deceased-1 and D-3 Chandra opposed and in order to take revenge, he took all deceased to house of D-3 and murdered them, brutally. It is crystal clear that, Accused was staying along with deceased persons at time of occurrence, in house of D-3. Prosecution clearly established motive for murder of deceased.

Conduct of accused creates doubt. After seeing dead bodies, naturally, conduct of a normal person would be to immediately inform same to police or to their relatives. Even according to Accused (D.W.1), he did not inform any body and there is no acceptable explanation from accused for the same. Hence, conduct of accused is one of vital link supporting prosecution case. Apart from that, it is consistent evidence of P.Ws. 1, 2 and 9 that, all of them saw accused, coming out of house of D-3 with bloodstained knife and also found blood stained dhoti. P.W.5 is driver of a Jeep. In his evidence, he has stated that, he took accused in his jeep and dropped him near Panchayat Office. Subsequently, based on disclosure statement of the accused, M.O.1 Aruval has been recovered.

Admittedly, even as per his own evidence, at time of occurrence, he was present in house of D-3 Chandra. Even according to his evidence, all deceased and accused alone were in that house. Hence, under Section 106 of Evidence Act, 1872, burden is on accused to prove facts which is within his knowledge. Even though it is a rebuttable presumption, accused did not discharge said burden. It is one of vital circumstance against Accused. Prosecution has proved guilt of accused beyond reasonable doubt.

Regarding sentences imposed, considering age of Accused and also fact that, he is a poor man and also considering all mitigating and aggravating circumstances, instead of directing accused to undergo sentences, consecutively, Court directed him to undergo sentences, concurrently and partly allowed the appeal.

Tags : Conviction Sentence Validity

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Supreme Court

Manipal University and Ors. v. Union of India (UOI) and Ors.

MANU/SC/0752/2017

03.07.2017

Education

It is settled law that, what cannot be done directly, cannot be done indirectly

Instant Appeal arises from a Writ Petition filed by Manipal University (formerly known as Manipal Academy of Higher Education) and Ors., wherein High Court disposed of Writ Petition giving effect to directions of this Court in PA Inamdar v. State of Maharashtra, until suitable law or Regulation is made by University Grants Commission (UGC) or Central Government. Aggrieved, Manipal University has preferred present Appeal. Principal question that, arises for consideration is regarding correctness of directions issued by second Respondent to Appellant not to fill up 103 seats in category of NRI/foreign students during years 2005 to 2008.

Appellant was granted status of a Deemed University in year 1993. There is also no controversy about directions issued by this Court regarding pegging of NRI quota in medical colleges at 15 per cent. Admittedly, Appellant has made admissions to NRI quota beyond 15 per cent. Both sides agree that, Medical Council of India does not have power to fix quotas to sub categories within total intake.

Second Respondent has a duty to ensure merit based selections. However, no direction can be issued by second Respondent interfering with Regulation or supervision of sub categories. Direction issued by second Respondent by its letter dated 08th February, 2005 is ultra vires and is liable to be declared illegal. Exercise of power by an authority has to be within contours conferred by statute and for purpose of promoting objectives of statute. There is no express power conferred on second Respondent in Medical Council of India Act, to interfere in allocation of quotas for sub categories. In facts and circumstances of present case, it is not possible to hold that, second Respondent has power to issue directions pertaining to NRI quota even by reasonable implication.

Appellant being a Deemed University is governed by provisions of UGC Act and competent authority to take any action for violation of provisions of Act regarding maintenance of standards is Commission. Medical Council of India Regulations on Graduate Medical Education, 1997, obligate second Respondent to ensure merit based selection to admissions in medical colleges. However, second Respondent cannot issue directions interfering with quota in guise of exercising power under Regulation 5 of said Regulations. It is settled law that, what cannot be done directly, cannot be done indirectly. Supreme Court allowed the appeal and held that, direction issued by second Respondent to Appellant not to make admissions to extent of 103 NRI seats for years 2005 to 2008 is declared ultra vires and without jurisdiction.

Relevant

PA Inamdar v. State of Maharashtra MANU/SC/2621/2005
: (2005) 6 SCC 537

Tags : Quota Direction Validity

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