Judgments

Supreme Court

Southern Power Distribution Company of Telengana Ltd. through its CMD and Ors. Vs. Gopal Agarwal and Ors.

MANU/SC/0906/2017

27.07.2017

Civil

An auction purchaser cannot be called upon to clear past arrears

In the facts of present case, City Union Bank Limited, Second Respondent issued a tender/sale notice under Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act, 2002) for sale of land, plant and machinery in Survey Nos. 168/169 in Bollaram Village, Medak District which belonged to M/s. J.T. Alloys Private Limited. Property was brought to sale due to default in payment of outstanding loan amount. It was stated in tender/sale notice that, sale would be on "as is where is" condition. First Respondent participated in the auction and was declared the highest bidder in respect of dry land measuring 0.36 hectares in Survey No. 168, Bollaram Village.

Appellant No. 3, Superintending Engineer, informed Respondent-Bank that an amount of Rs. 1, 88, 23,185/- was due towards electricity charges from M/s. J.T. Alloys Private Limited. Third Appellant requested the Bank to transfer residual amount realised from the sale for adjustment towards arrears payable by M/s. J.T. Alloys Private Limited. Bank informed Third Appellant that, there was no amount left after utilisation of sale proceeds towards its dues.

First Respondent applied for a low tension (domestic) electricity connection to the premises which he purchased in the auction conducted by the Second Respondent-Bank. As there was no response from the Appellants, the First Respondent filed a writ petition in the High Court of Andhra Pradesh. The said writ petition was allowed on the ground that the Petitioner cannot be denied the power supply connection due to non-payment of arrears payable by the previous owner of the property.

A Division Bench of High Court confirmed judgment of Single Judge by dismissing appeal filed by Appellants. Division Bench held that, there was no evidence produced before Court to show that, First Respondent had undertaken to discharge liability of previous consumer. It was also held that, Appellants cannot withhold the supply of power to Respondent No. 1 on specious ground that, arrears have not been cleared by previous consumer. Appellants have filed present appeal assailing said judgment of High Court.

There is no reason to interfere with judgment of High Court. The High Court relied upon judgment in Isha Marbles v. Bihar State Electricity Board, to grant relief to First Respondent. It was held in said judgment that, an auction purchaser cannot be called upon to clear past arrears. It was also held that a power connection to an auction purchaser cannot be withheld for dues of past owner. High Court also referred to a judgment in Ahmedabad Electricity Co. Ltd. v. Gujarat Inns (P) Ltd., wherein ratio of judgment in Isha Marbles case was reiterated, particularly with reference to a fresh connection for supply of electricity.

In NESCO v. Raghunath Paper Mills (P) Ltd., purchaser in an auction sale conducted by official liquidator on "as is where is" and "whatever there is" basis was found not liable for payment of the electricity arrears. In said case, an advertisement was issued by official liquidator for sale of moveable and immoveable property of M/s. Konark Paper and Industries Limited on "as is where is" and whatever there is" basis. Auction purchaser applied for a fresh electricity connection to its unit which was denied on ground of non-payment of arrears by the past owner. After considering judgments in Ahmedabad Electricity Company and Isha Marbles, this Court held that, request of auction purchaser for a fresh connection could not have been rejected.

Facts of this case are similar to that of NESCO v. Raghunath Paper Mills (P) Ltd. Tender/sale notice mentioned that, property was being auctioned on "as is where is" basis. First Respondent applied for a fresh connection and he is in no way connected to past owner. He has also not undertaken to pay past arrears of previous owner. Supreme Court dismissed the appeal.

Relevant

Ahmedabad Electricity Co. Ltd. v. Gujarat Inns (P) Ltd. MANU/SC/0244/2004
: (2004) 3 SCC 587; Isha Marbles v. Bihar State Electricity Board MANU/SC/0632/1995
: (1995) 2 SCC 648; NESCO v. Raghunath Paper Mills (P) Ltd. MANU/SC/0962/2012
: (2012) 13 SCC 479

Tags : Past arrears Previous owner Payment

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High Court of Jharkhand

Ram Chandra Hansda and Ors. Vs. The State of Jharkhand

MANU/JH/0521/2017

25.07.2017

Criminal

Essence of Section 34 of IPC, is simultaneous consensus of minds of persons participating in criminal action to bring about particular result

Present appeals arise out of common judgment and sentence passed by Additional Sessions Judge, Fast Track Court. Trial Court after hearing parties and after analyzing evidence and considering entire materials on record convicted Appellants under Sections 302/34 of Indian Penal Code, 1860 (IPC) and sentenced them to undergo rigorous imprisonment for life and imposed a fine of Rs. 1000/- each. In default of payment of fine, they were further directed to undergo simple imprisonment for 3 months.

Essence of Section 34 of IPC is simultaneous consensus of minds of persons participating in criminal action to bring about a particular result. Such consensus can be developed at spot also and thereby intended by all of them. "Furtherance of common intention" as envisaged in Section 34 of IPC, has to be drawn from facts and conduct of accused as well as others and related circumstances of the case.

From facts of present case, it was found that, Appellants made deceased immobile and numerous assault was made which shows that their intention was also to see that, deceased dies. Further, from evidence, it is clear that there was an enmity between deceased and Appellants as Appellants had earlier threatened deceased of dire consequence on account of non-payment of donation. Entire circumstances clearly suggest that, intention of each one of them to kill deceased was known to each one and they shared them. Conduct of accused persons confirms applicability of Section 34 of IPC, in present case on evidence gathered.

Supreme Court in case of Parasa Raja Manikyala Rao and Anr. v. State of A.P., while dealing with Section 34 of IPC held that section really means that, if two or more persons intentionally do a common thing jointly, it is just the same as if each of them had done it individually. It is a well-recognised canon of criminal jurisprudence that, Courts cannot distinguish between co-conspirators, nor can they inquire, even if, it were possible as to the part taken by each in the crime. Where parties go with a common purpose to execute a common object, each and every person becomes responsible for the act of each and every other in execution and furtherance of their common purpose; as the purpose is common, so must be the responsibility. All are guilty of the principal offence, not of abetment only.

Case in hand is somewhat similar on facts, which was dealt with by Supreme Court in PRM Rao’s case. Witnesses are consistent and participation/involvement of two appellants in commission of murder cannot be doubted. Thus, trial court has correctly convicted Appellants under Section 302 of IPC with aid of Section 34 of IPC and sentenced them to undergo rigors imprisonment for life even though they did not give fatal blow.

Relevant

Parasa Raja Manikyala Rao and Anr. vs. State of A.P. MANU/SC/0823/2003

Tags : Common Intention Conviction Validity

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High Court of Delhi

Himani Malhotra Vs. Indraprastha College for Women and Ors.

MANU/DE/2015/2017

21.07.2017

Service

Petitioner cannot be denied the right of getting an opportunity to participate in Orientation/Refresher Courses conducted by UGC, merely because she is under suspension

By present petition, Petitioner seeks a writ in nature of certiorari quashing impugned letter/e-mail dated 6th June, 2017 communicated by Respondent No. 1, i.e., Indraprastha College for Women, as being arbitrary and wholly unconstitutional. Petitioner is an Assistant Professor in Indraprastha College for Women and was confirmed on 30th September, 2011 as Assistant Professor, Physical Education and Sports Department of IP College, Delhi University, New Delhi. Disciplinary proceedings were initiated against Petitioner for alleged misconduct which is stated to be still pending and as submitted during course of hearing, Petitioner is under suspension since last five years. Petitioner, however, seeks that she be allowed to pursue University Grants Commissions’ supported Orientation Programme and Refresher Course for teachers to be conducted by University Grants Commission’s academic staff and colleges and submits that, as per the UGC’s guidelines, Universities and Colleges have to allow interested, eligible teachers to attend UGC-ASC Courses based on their eligibility, or else valid reasons would have to be intimated to teachers concerned for not sending of teachers for purpose, as courses so organized for teachers are to ultimately benefit University and college, and teacher.

UGC norms about Orientation Programme/Subject Refresher Course and submissions made on behalf of Respondent No. 1, make it apparent that, for getting any promotion to senior scale, minimum Academic Performance and screening/selection criteria include attending one Orientation and one Refresher/Research Methodology course of 2/3 weeks’ duration for promotion to higher stage 2 from stage 1 or equivalent cadres.

Eligibility criteria put forth in UGC norms about Orientation Programme/Subject Refresher Courses do not prescribe any period of length of service which permits a teacher to participate in Orientation Programme/Subject Refresher Courses, and rather it has been prescribed that, newly appointed lecturers upto six years of continuous service are eligible for Orientation Programme and only those applicants who have attended one Orientation Programme can be one of applicants for Refresher Course.

Even as per guidelines of UGC supported Orientation Programmes qua eligibility condition, it is mentioned even qua temporary/contract teachers, that those of such teachers, who have been teaching for at least two academic sessions in an institution operated by University for at least two years may be allowed to participate in Orientation Programmes/Refresher Courses to enhance their skill. Thus, apparently, a confirmed teacher and present petitioner (even though she is presently under suspension), apparently is on a better footing than a temporary/contract teacher, who can also be given an opportunity to participate in Orientation Programme/Refresher Courses to enhance their skills.

There is no period of length of service prescribed for a teacher to participate in UGC supported Orientation Programme or Refresher Course for teachers. Petitioner cannot be denied her right of getting an opportunity to participate in Orientation/Refresher Courses conducted by UGC, merely because she is under suspension and enquiry proceedings are under progress, for if she is exonerated of charges against her she could be redeemed back to her original position in her establishment.

High Court allowed the Petition and directed Respondent No. 1 to issue a No Objection Certificate to Petitioner for registration and participation in Orientation Programme/Refresher Courses conducted by the UGC for the year 2017-18. Thus, letter/e-mail dated 6th June, 2017 communicated by Respondent No. 1 to Petitioner along with order dated 6th July, 2017 rejecting application of Petitioner for attestation and issuance of No Objection Certificate and Relieving Letter are quashed and set aside.

Tags : Programme Participation Eligibility

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High Court of Delhi

Ram Charan and Ors. v. New Delhi, Y.M.C.A.

MANU/DE/2024/2017

20.07.2017

Civil

A right of a licencee is only to enter and exit licenced premises and he has no legal possession which can be protected

Present Regular Second Appeals under Section 100 of Code of Civil Procedure, 1908 (CPC) impugn judgment of first appellate court. Suits were for injunction to restrain dispossession of Appellant/Plaintiff from quarter in question belonging to Respondent/YMCA. Suits were dismissed by trial Court, which was a common judgment dismissing both suits. Judgment of first appellate court dismissing both appeals is also a common judgment dismissing both appeals. Appellant/plaintiff had claimed rights in suit quarter as a tenant which has been held against Appellant/Plaintiff by first appellate court and it is held that, Appellant/Plaintiff was only a licencee and hence, suits claiming tenancy rights and therefore, right against being dispossessed except by due process of law were dismissed.

First Appellate Court has rightly disbelieved the alleged rent receipts because alleged rent receipts cannot have benefit of presumption of validity under Section 90 of Indian Evidence Act, 1872. Court noted that in law not only a document has to be filed, it has to be proved and admittedly, no evidence has been led on behalf of Appellant/Plaintiff to show that, rent receipts were not issued by any specific person of Respondent/Defendant. Also, Appellant/Plaintiff has failed to lead any evidence to show that, alleged rent receipts were signed by a duly authorized person/attorney of Respondent/Defendant.

Respondent/Defendant is YMCA, a legal body, and therefore any person who issues receipts is required to be shown to have been duly authorized to issue rent receipts, and which has not been so proved by Appellant/Plaintiff. First Appellate Court has rightly held that, with respect to no other quarter rent receipt is issued to occupant of any quarter, and therefore, even Appellant/Plaintiff would not be a tenant.

A tenancy is a contract and contract has to be duly proved, more so when it is with a legal body such as YMCA. Also rent receipts have to be shown to be duly executed not only by duly authorized person but also fact that, they are in fact executed by a particular person who was working with Respondent/Defendant. Admittedly, this has not been done by Appellant/Plaintiff. First Appellate Court is entitled to take a view by re-apprising evidence as was available with Trial Court. First Appellate Court is an appellate court both of facts and law. First Appellate Court has rightly come to a conclusion that, there was no contract of tenancy and alleged rent receipts are not proved to have been executed/issued by Respondent/defendant, much less an authorized person. A right of a licencee is only to enter and exit licenced premises and a licencee has no legal possession which can be protected. Court dismissed the appeals.

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Customs, Excise and Service Tax Appellate Tribunal

Air India Ltd. V. CST

MANU/CE/0500/2017

20.07.2017

Service Tax

Section 80 of Finance Act, 1994 can be invoked for waiver of penalty imposed as Appellants had entertained a belief regarding non-liability of service tax

In facts of present case, Appellants are engaged in operation of airlines. Appellant entered into an agreement with MTIL, which envisaged print and delivery of "Swagat" magazine to Appellant on a monthly basis. MTIL shall undertake print and publication and delivered magazine to Appellant as per specifications agreed upon and having contents approved by Joint Editorial Board. This magazine is intended for circulation on board, flights operated by Appellant and also in the airlines lounges. MTIL is allowed all advertisement proceeds in the magazine. Appellant shall have the right to publish two pages of advertisements in every issue, free of cost, to generate goodwill among public and to promote travel on IA. Advertisement material is to be cleared by Editorial Board before publication. No advertisement of competitors of Appellant shall be published. MTIL shall not get any remuneration for this activity of printing and delivering the in-flight magazine to the Appellant. However, MTIL shall pay Rs. 8.75 lakhs per month to Appellant.

Revenue entertained a view that, MTIL is acting as a representative of Appellant and accordingly, amount received by Appellant, is liable to service tax under category of "Franchisee Service" in terms of Section 65(105)(zze) read with Section 65(47) of Finance Act, 1994. Accordingly, proceedings were initiated against Appellant to demand and recover service tax. Original Authority adjudicated case and confirmed service tax liability of Rs. 93,81,940/- and imposed equal amount of penalty under Section 77 of Act. He also imposed an amount of Rs. 50,000/- under Section 76 of Act.

Dispute is relating to service tax liability of Appellant on amount received from MTIL, which is for permission granted to MTIL to print and deliver in-flight magazine "Swagat" to Appellant. As per Section 65(47), 65(48), 65(105) of Finance Act, 1994, franchise represents wide variety of business arrangements. In present case, a perusal of terms of agreement and magazine published clearly indicate that, said magazine is identifiable with Airlines operation and business of Appellant. Publication of inflight magazine is one of activities of Appellant, who is an operator of major commercial airlines. Admittedly, provision of in-flight magazine is an essential requirement for such commercial airlines. In terms of agreement, Appellant permitted MTIL to print and deliver a fixed number of copies of said magazine for use by passenger in flight or in the lounge. It is clear that, advertisers, who place their advertisements in the in-flight magazine, fully identified the magazine with Appellant and target readers provided by Appellant. This fact cannot be disputed.

In other words, magazine is fully identified with Appellant and MTIL is getting profitable advertisements revenue by representing such magazine of Appellant with various clients. In magazine, it is clearly printed that, "Swagat (meaning ‘welcome’), in-flight magazine of Air India". Publication of in-flight magazine having logo and title of the airline company is very much part of airlines business of Appellant. This part of business is being represented to advertisers through MTIL. MTIL is paying a fixed monthly amount to Appellant for permitting usage of Appellant’s name and magazine for generating revenue. Scope of franchisee is very wide as can be seen from statutory provisions. Tribunal opined that, amount received by Appellant from MTIL is liable to be taxed under said tax entry. Confirmation of tax liability by Original Authority is upheld.

Regarding the limitation, that Appellant is a Government of India Undertaking. As such, a rebuttable presumption is created regarding non-existence of intention to evade payment of service tax. However, in this particular case, Revenue has produced sufficient evidence to rebut such presumption. In spite of a notice issued under Section 77 of Act, Appellant did not furnish required details for quantification of tax liability. Reasons for extended period have been recorded by Original Authority. It is recorded that, many reminders have been issued to Appellant asking for details and they have failed to provide reply to the same. Tribunal is in agreement with Original Authority regarding sustainability of demand for extended period.

Appellants had entertained a belief regarding non-liability of service tax and accordingly, had not discharged same, in time. In view of facts and circumstances of case, Section 80 can be invoked for waiver of penalty imposed on Appellant. Accordingly, while upholding tax liability, as confirmed by Original Authority, penalty imposed on Appellant under Section 78 of Act, is waived invoking provisions of Section 80 of Finance Act, 1994.

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Supreme Court

Bhairon Sahai (D) through L.Rs. Vs. Bishamber Dayal (D) through L.Rs. and Ors.

MANU/SC/0834/2017

18.07.2017

Tenancy

Subletting is not permitted by camouflaging it as a partnership

In instant case, Petition filed under Section 14 of Delhi Rent Control Act, 1958 by Appellant-Landlord for eviction of Respondents was allowed by Rent Controller. Tribunal set aside judgment of Rent Controller in appeal filed by Respondents. Rent Control Tribunal, Delhi on a re-appreciation of evidence on record reversed findings of Rent Controller and concluded that, it was Respondent No. 1 and not Respondent No. 2 who was carrying on business of a fair price shop. High Court confirmed judgment of Appellate Tribunal by holding that it had not been proved that, Respondent No. 2 was in exclusive possession of suit premises. Principal contention of Appellant is that, tenant had parted with possession of a part of premises in favour of Respondent No. 2 without taking his consent and that in view of Section 14(1)(b) read with Section 14(4) of Act, he is entitled to evict tenants. Point that arises in present case is whether a landlord is entitled to seek eviction of Respondents on ground of parting with possession without his consent.

Section 14(1)(b) of Act provides that, a tenant is liable for eviction if he sub-lets, assigns or otherwise parts with possession of the premises without consent of landlord. In case Rent Controller decides that, partnership entered into by tenant is not genuine and there is parting of possession, Section 14(4) of Act, deems it to be sub-letting. Therefore, if tenant has allowed any person to occupy the whole or any part of the premises, actually for the purpose of sub-letting but speciously by entering into a partnership with him, such an arrangement shall be deemed to be subletting. In other words, subletting is not permitted by camouflaging it as a partnership.

Combined reading of Clause (b) of the proviso to Section 14(1) read with Section 14(4) makes it clear that before a tenant can sub-let, assign or part with the possession of any part of the premises or the whole, it must be preceded by consent in writing from landlord. Requirement of obtaining consent in writing of landlord is retained as a pre-requisite even for purposes of Sub-section (4). What is of importance is, in either case whether a person has been inducted genuinely as a partner and therefore, allowed to occupy premises or whether partnership is a ruse, requirement of consent in writing as in Sub-section (1) is retained. In present case, there is no evidence that, tenant obtained consent in writing from landlord before allowing son-in-law to occupy premises in pursuance of Partnership deed.

In present case, it is clear from evidence on record and judgments of Courts below that, there has been parting of possession by Respondent No. 1 of a portion of premises in favour of Respondent No. 2 without taking consent of Appellant. Rent Controller found that, from 1964 onwards, there were two shops being run in premises. One portion of premises was being used for a fair price shop, licence of which was in name of Respondent No. 2. Other portion was being used as a provision store which was being run by Respondent No. 1. Averments in Eviction Petition would disclose that, Appellant alleged parting of possession by Respondent No. 1 in favour of Respondent No. 2 between the years 1964 and 1976. Other allegation is that, Respondent No. 1 entered into a partnership with Respondent No. 2 in 1977. No consent was taken from Appellant for either parting with possession of a portion of premises or for entering into a partnership.

Eviction can be sought by a landlord, if tenant sub-lets, assigns or otherwise parts with possession without his consent. Supreme Court is of opinion that, Rent Controller was right in finding that, Respondent No. 2 was carrying on business as Authorised Ration Distributor in a portion of premises from 1964 as he was the licensee. Parting with possession of premises without consent of landlord was sufficient for eviction of tenant without getting into question of sub-letting or assignment. Appeal is allowed on ground of parting of possession by tenant/Respondent No. 1 in favour of Respondent No. 2 without consent of landlord. Respondents are directed to vacate premises within two months.

Tags : Premises Sub-let Eviction

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