Supreme Court

Sivakami and Ors. Vs. State of Tamil Nadu and Ors.

MANU/SC/0236/2018

12.03.2018

Land Acquisition

What was not decided in appeal by the Division Bench could not be decided by the Division Bench while deciding the review application

Present appeals are against the final judgment passed by the High Court whereby the Division Bench of the High Court dismissed the review application filed by the Appellants herein as not maintainable and also on merits and order whereby the Division Bench set aside the order passed by the Single Judge of the High Court which was in favour of the Appellants herein.

The Appellants claim to be the owners of the land in question admeasuring around 1.52 acres situated at Ganapathi Village. The land in question was the subject matter of land acquisition proceedings under the Land Acquisition Act, 1894 in the year 1985 at the instance of State of Tamil Nadu, which had issued notifications under Sections 4 and 6 of the Act for its acquisition. The Appellants, felt aggrieved of the acquisition of their land in question, filed Writ Petition in the High Court and questioned therein the legality and correctness of the entire acquisition proceedings including the orders in G.O. Ms. No. 1119, Social Welfare Department dated 15th May, 1985 and G.O. Ms. No. 1536, Social Welfare Department dated 18th June, 1986. The Single Judge, by order, allowed the Appellants' writ petition and quashed G.O. Ms. No. 1119 dated 15th May, 1985 and G.O. Ms. No. 1536 dated 18th June, 1986.

The State felt aggrieved and filed intra Court appeal before the Division Bench out of which these appeals arise. By impugned order, the Division Bench allowed the State's appeal and while setting aside the order of the Single Judge dismissed the Appellants' writ petition. In other words, the acquisition proceedings were upheld by the Division Bench as being legal and proper. Against the said order, review application was filed by the Appellants herein but it was dismissed. It is against these two orders of the Division Bench, the writ Petitioners felt aggrieved and filed instant appeals by way of special leave in this Court.

In instant case, the Division Bench, however, simply allowed the State's appeal and, in consequence, dismissed the writ petition and upheld the acquisition proceedings as being legal and proper and that too without assigning any reason in support thereof. It was for the Division Bench to deal with all the grounds raised by the parties while reversing the order of writ Court and to record their own findings by assigning reasons in support of the conclusion. It was, however, not done.

This appears to be a case where the Single Judge (writ Court) allowed the Appellants' writ petition without assigning any reason and without dealing with any of the grounds raised by the parties except placing reliance on one decision for allowing the writ petition whereas the Division Bench allowed the State's appeal without dealing with any of the issues raised by the parties in the writ petition and without assigning any reason as to why the writ petition deserved to be dismissed. What the Division Bench was required to do while deciding the appeal, it was done by the Division Bench while deciding the review application.

The scope of the appellate powers and the review powers are well defined. The power of review under Order 47 Rule 1 of the Code of Civil Procedure, 1908 is very limited and it may be exercised only if there is a mistake or an error apparent on the face of the record. The power of review is not to be confused with the appellate power. The review petition/application cannot be decided like a regular intra court appeal. On the other hand, the scope of appeal is much wider wherein all the issues raised by the parties are open for examination by the Appellate Court.

A fortiori, what was not decided in appeal by the Division Bench could not be decided by the Division Bench while deciding the review application. The orders passed by the High Court, i.e., (writ Court and Division Bench) are bad in law and cannot be legally sustained for want of any reason, discussion and finding on any of the grounds/issues raised by the parties in support of their respective contentions. Since the matter is pending for the last three decades, it is just and proper to remand the case (writ petition) to the Division Bench for its decision afresh on merits in accordance with law instead of remanding it to the Writ Court. The impugned orders are set aside and the writ petition is remanded to the Division Bench for its decision afresh on merits in accordance with law. The appeals succeed and are accordingly allowed.

Tags : Application Review Maintainability

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High Court of Delhi

Quippo Oil and Gas Infrastructure Limited Vs. Oil and Natural Gas Corporation Limited and Ors.

MANU/DE/0998/2018

12.03.2018

Commercial

Court's role is not to oversee the whole but only to ensure that there is no unfairness or arbitrariness

The Petitioner is a wholly owned subsidiary of SREI Infrastructure Finance Limited, which owns 99.90% of the shares. The first respondent/Oil and Natural Gas Corporation Limited (ONGC Ltd.) floated the subject charter hire of four numbers of Drilling Rigs for Mehsanam and Rajamundhry Assets. The Petitioner is aggrieved by the interpretation of the financial criteria of the tender, whereby the bidding company is required to possess 15% net worth of annualized bid value. The total bid value is Rs. 500 crore; 15% of that works out to Rs. 75 crores. ONGC published a tender calling for bids, on 30th December, 2016 for charter-hire of four Drilling Rigs for Mehsanam and Rajamundhry Assets. The original tender did not contain the working capital criteria under the bid evaluation criteria. By its letter, dated 23th March, 2017 ONGC informed the Petitioner with regard to the amendments made in the tender.

The Court, however, is not to view the interpretation of the tender documents as if it were the body charged with the primary duty of doing so. As repeatedly emphasized by the Supreme Court in its numerous decisions - including those cited by ONGC, judicial review is concerned with whether the impugned action is illegal, procedurally unfair, lacking in bona fides or patently and manifestly unreasonable in its effect. The last expression is to be resorted to only and only if the result is of such a threshold that the decision is one that no reasonable man placed in a like situation could have arrived at such a conclusion.

In instant case, ONGC argues that the interpretation given by it is plausible and reasonable and that given the Petitioner's extensive liabilities, considering its bid to have been qualifying, can result in the real possibility of non-performance of the contract itself. Facially, the petitioner's argument with respect to inadequate working capital being addressed through a line of credit made available by SREI Infrastructure banker seems plausible. At the same time, present Court is of the opinion that, though plausible, that interpretation is not the only reasonable one. The ONGC's argument that, the shortfall or inadequacy in working capital requirements addressed through a short term credit, in the manner done, in the circumstances of the case, is not adequate at all is reasonable on several grounds. The line of credit made available in terms of to what extent and in what terms the banker would make good the inadequacy and whether the terms are such that there would be sufficient cash flow for specifically funding the contract (if awarded) during the performance period and whether, importantly, such liability will be, in any way, kept apart from the other liabilities so that in the event of creditors moving in and seizing the assets, the contract can nevertheless perform, are matters that are left unsaid and unclear. It is, in these circumstances, that the inadequate working capital requirements assume importance as a relevant factor.

As remarked in Afcons; JSW Infrastructure, the public agency i.e. the ONGC was the author of the tender specifications. It is the commercial entity, though an arm of the Central Government, which primarily interprets the document and its terms and decides whether to award the contract. The considerations, which weighed with the ONGC, therefore, are entirely commercial. The Court's role is not to oversee the whole but only to ensure that there is no unfairness or arbitrariness. Having regard to these factors that the ONGC adopted, an interpretation of the terms under which it ultimately awarded the contract, an interpretation of the terms which will control the decision to award the contract finally that are unfavourable to the petitioner, cannot in the facts of the case be said to constitute an arbitrary decision warranting interference under Article 226 of the Constitution. There is no merit in the writ petition which is accordingly dismissed.

Relevant

Afcons Infrastructure Ltd. vs. Nagpur Metro Rail Corporation Ltd. and Ors. MANU/SC/1003/2016

Tags : Bid Rejection Validity

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High Court of Bombay

Ramesh Khatanmal Lulla Vs. Mohammad Yusuf Abdul Gaffar

MANU/MH/0422/2018

09.03.2018

Intellectual Property Rights

Likelihood of loss follows when Plaintiff can show a strong prima facie case of infringement of its registered trade mark, no evidence of actual loss is required

By instant appeal, the original Defendant has challenged order passed by the Court below, whereby an application for temporary injunction filed by the Respondent-original Plaintiff has been allowed and the Appellant has been temporarily restrained from manufacturing, trading, offering or dealing in the product "Fafda Powder" under the name of "New Gai Chhap", which is found to be deceptively similar to the registered trade mark "Gai Chhap" of the Respondent pertaining to the same product, till the decision of the main suit. The question that arises for consideration in the present appeal is, as to whether the order of temporary injunction granted by the Court below was justified and whether the parameters for grant of temporary injunction, in cases where infringement of registered trade mark was alleged by the Plaintiff, were satisfied in the present case.

When the Plaintiff alleges infringement of registered trade mark and is able to show that, the defendant is using a mark that is identical or similar to the registered trade mark and that it is a colourable use, irreparable loss can be presumed to have taken place and it would be enough to show the loss or injury that the plaintiff is likely to suffer. Apart from this, the Plaintiff has to establish comparative strength of its case in order to successfully claim an order of grant of temporary injunction. In order to reach a finding, the Court also has to examine whether the mark of the Defendant is identical to that of the registered trade mark or it can be said to be deceptively similar as defined by Section 2(h) of the Trade Marks Act, 1999 and in arriving at a finding on the same, the Court has to see whether a customer of average intelligence and imperfect recollection would be misled by the mark of the Defendant and confuse it with the registered trade mark of the plaintiff due to overall similarity in the essential features with the registered trade mark.

The registered trade mark of the Respondent shows that, there is a picture of cow and words "Gai Chhap, Akola", written above the picture of the cow and the words "Fafda Powder" are written below the picture of the cow. Thereafter, below the words "Fafda Powder", details about the packing, net weight and price etc. of the product is given and at the bottom is the name of the manufacturer. The mark of the Appellant shows that, a picture of the cow and the positioning of the words "New Gai Chhap", "Fafda Powder" and other details as also the name of the manufacturer are in the same position as that of the registered trade mark of the respondent. Only the word "Akola" is on the right hand side of the picture of cow while in the registered trade mark of the respondent, the said word is in the middle, just above the picture of cow. The colour of the pattern on the picture of cow in the mark of the appellant is identical to that of the respondent. The word "new" is written in smaller font on the left side of the words "Gai Chhap" in the mark of the Appellant. Comparing the two marks as a whole, prima facie, the impression gathered is that, essential features of the registered trade mark of the Respondent have been identically shown in the mark of the appellant and that there seems to be over all similarity in the two. It is likely to create confusion and prima facie appears to be deceptive in its similarity.

Once the Court prima facie comes to the conclusion that, the Respondent-Plaintiff has been able to show over all similarity and copying of essential features of the registered trade mark, the irreparable loss or injury in the absence of an order of temporary injunction has to be presumed. It has been held in the case of Balsara Hygiene Products Ltd. that, no evidence of actual loss is required in such cases. In fact, the likelihood of loss follows when the plaintiff is able to show a strong prima facie case of infringement of its registered trade mark by the Defendant. The balance of convenience clearly lies in favour of the Respondent-Plaintiff in the facts and circumstances of the present case.

In the present case, the Respondent-Plaintiff has placed on record material to show that, it has been using its mark since the year 1995 and that the Registrar of Trade Marks has granted certificate of registration on 16th February, 2015. Another significant aspect of present case is that the mark of the Respondent is registered in respect of the product of "Fafda Powder" and that the Appellant is selling the same product by using its mark. This shows that, the comparative strength of the case of the Respondent is much higher than that of the Appellant in the context of grant of an order of temporary injunction.

The findings rendered by the Court below cannot be said to be perverse and it cannot be said that, the discretion exercised was arbitrary, capricious or perverse. The scope of interference in the discretion exercised by the Court below is very limited. The Appellant has not been able to make out a case for exercise of such jurisdiction by this Court in his favour. The Appellant has failed to make out any ground for interference with the impugned order passed by the Court below. Accordingly, this appeal is dismissed.

Relevant

Balsara Hygiene Products Ltd. vs. Brighto Chemical Industrial MANU/MH/0074/1996

Tags : Injunction Grant Validity

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High Court of Allahabad

Sahdev Vs. State of U.P. and Ors.

MANU/UP/1191/2018

08.03.2018

Criminal

In a free fight, invocation of right of private defence by one party would be valid where it was not possible to weed out the instigator and the attacker

By means of the present revision, the revisionist has challenged the judgment and order passed by the learned Additional District and Sessions Judge, whereby the learned Trial Court acquitted the accused/opposite parties No. 3 to 10 for the offences punishable under Sections 147, 148, 149, 302, 307, 323, 504 and 506 of the Indian Penal Code, 1860 (IPC). During the course of trial, learned Trial Court concluded that, there was a fight between the accused persons and the prosecuting party and that the accused persons had wielded Lathis in the self defence and caused injuries to the members of the prosecuting party.

In the present case even if certain disputed facts are omitted, what comes out is that the accused were trying to open an irrigation/drainage channel (Nali) that had allegedly been closed by the complainant and others near the house of the complainant. The injuries caused to the complainant and others including the deceased indicate lacerated wounds which have been indicated to have been caused by Ballam etc. It is not disputed, rather it has come out in the evidence that even the accused had received injuries during the skirmish that had taken place on the said date. It was a free fight in which injuries were bound to occur and accordingly invocation of the right of private defence by one party would be valid where it was not possible to weed out the instigator and the attacker.

A very relevant aspect of the matter is that this Court, while sitting in the revisional jurisdiction and exercising the power of revision, should not interfere with the concurrent findings of fact recorded by the Court below unless there is a case of misreading of evidence or of non consideration of material and admissible evidence or of considering of such evidence which is not admissible at all.

The Supreme Court in the case of State of Kerala v. Puttumanaillath Jathavedan has held that "in its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of Supervisory Jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an Appellate Court nor can it be treated even as a second Appellate Jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice."

The perusal of the grounds taken in the revision by the complainant also do not make out any manifest illegality in the judgment of the learned Court below or in the order of acquittal or any ground which indicates grave miscarriage of justice. It is settled proposition of law, as laid down by the Supreme Court, that the revisional jurisdiction of the High Court, while sitting in appeal over an order of acquittal, should not be exercised lightly or casually unless and until there exists a manifest illegality in the judgment or order of acquittal or there is grave miscarriage of justice.

None of the grounds taken in the revision bring out the illegality in the judgment nor any material evidence which may have been ignored by the learned Trial Court while delivering the judgment dated 30.7.2004. The grounds are more of a general nature, rather than pointing out any specific illegality or infirmity in the impugned judgment. The revision is dismissed.

Relevant

State of Kerala v. Puttumanaillath Jathavedan reported in MANU/SC/0100/1999
: (1999) 2 SCC 452

Tags : Acquittal Private defence Right

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High Court of Punjab and Haryana

Rajan Bhardwaj and Ors. Vs. State of Haryana

MANU/PH/0179/2018

08.03.2018

Narcotics

An amendment which affects vested rights is prospective in nature unless legislature makes it retrospective expressly or by necessary implication

The Petitioners were held guilty of manufacturing/sale of spurious and mis-branded drugs. Consequently, sentence of RI for three years was imposed under Section 27(c) of Drugs and Cosmetics Act, 1940 apart from other sentences. The judgment of conviction and order of sentence was challenged by way of appeal, however, the appeal was dismissed. This has led to the filing of the present revision petitions. The Petitioners has raised two substantive contentions namely, (i) the trial is vitiated because it was conducted by a Court, which did not have the jurisdiction to try such an offence under the Act, and (ii) the conviction under Section 17B of the Act is illegal because at best only a case of mis-branding has been made out in the trial.

By now it is well settled that an amendment which affects vested rights is prospective in nature unless the legislature makes it retrospective expressly or by necessary implication. On the other hand, an amendment which relates to procedure only is presumed to be retrospective unless such a construction is textually impossible. A provision relating to forum is procedural in nature and therefore, Section 36 AB of the Act would apply retrospectively i.e. it would even apply to pending complaints. From the facts of the instant case, it is evident that, the Petitioners had not even been served when the amended provision came into force. The Petitioners put in appearance after service on or about 27th September, 2012, whereas the amendment came into force w.e.f. 10th August, 2009. Thus, the Court of learned Chief Judicial Magistrate, Hisar had no jurisdiction to try this complaint as the petitioners were inter alia accused of manufacturing/selling spurious drugs.

It is evident from the judgment of the learned trial Court that, when the Petitioners were charge-sheeted, the amendment had already come into force. The charges included alleged violation of Section 17B of the Act and the said provision relates to spurious drugs. At that stage, the learned trial Court should have taken note of the amendment and should have transferred the case to the appropriate forum. However, the trial Court failed to notice the amended provision resulting in the present situation. The trial in the present case has been conducted by a Court without jurisdiction and therefore, the trial is vitiated. The judgment of the learned Chief Judicial Magistrate, is nullity as he did not have the authority to decide the present complaint.

The Supreme Court in 'Chandrawati v. Ramji Tiwari, held that, the trial was vitiated on account of non-framing of relevant charge, and the request of the prosecution for remand was turned down on the ground that a long period had elapsed since the inception of the trial.

It is not in doubt that, a long period has elapsed since the complaint was instituted. The Petitioners cannot be held responsible for the long trial because the prosecution is to blame for the delay. It failed to bring the correct provision of law to the notice of the Court and therefore, the Petitioners cannot be made to suffer on account of the inefficiency of the prosecution. Moreover, charge under Section 17B of the Act is not sustainable in law as none of the ingredients of the said section are made out in the present case. The learned State counsel was repeatedly asked whether the allegations of impurities in the sample were true but he always replied in the negative. It would therefore, not be justified to subject the Petitioners to another trial by a competent Court of law. The judgments of the trial Court as well as that of the appellate Court are consequently set aside and the Petitioners are acquitted.

Relevant

Chandrawati v. Ramji Tiwari, MANU/SC/0821/2010
: 2011 (5) RCR (Crl.) 95

Tags : Conviction Validity Trial Delay

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High Court of Bombay

Annapurnadevi Vidya Prasarak Vs. The State of Maharashtra and Ors.

MANU/MH/0403/2018

06.03.2018

Education

If the decision of Government granting permission to start new school is contrary to the rules and against principles of natural justice, permission granted by State can be cancelled

The petition is filed under Articles 14, 19 (1)(g) and 226 of Constitution of India for relief of quashing and setting aside the permission granted by Respondent No. 1, the State to Respondent Nos. 5 and 6 to start the Junior College, 11th Standard Science and also for preventing the Government from giving such permission. It is contended that, the permission granted on 22nd January, 2013 is illegal.

The procedure has been laid down in Secondary School Code for obtaining permission to start new college or school. In Section 1 at clause 2.1 from Chapter 2, the procedure is given for submitting proposal and it shows that, the proposal needs to be sent to reach the Education Officer before 30th October in the year preceding the year which the school is proposed to be started. With every proposal the fees prescribed in this clause needs to be deposited. Clause 2.12 shows that, the application for obtaining permission to start secondary/higher secondary school will be considered only for that year and the application will not be considered next year or the application will not be kept on waiting list. It provides that, the application along with the fee will automatically extinguish. Clause 2.13 shows that, in no case the school should be started unless the written previous permission of the Government is obtained. However, it also provides that, school started without such permission shall not ordinarily be considered for permission.

Present Court had an occasion to consider the provisions of Secondary School Code in Annaji Raut Shikshan Sanstha, Umri and Anr. v. Secretary, Department of Education and Employment, Bombay and ors. This Court has laid down that if the decision of the Government granting permission to start new school was illegal, arbitrary, contrary to the rules and against principles of natural justice, permission granted by the State can be cancelled. When some procedure is prescribed for obtaining permission and the opinion of the authority which is required to study the ground reality is required to be considered, the State Government cannot go away from that procedure. In the present matter, the aforesaid circumstances show that, due to the influence of M.L.A. and also due to the circumstance that the President of Respondent No. 5 and 6 institution was a member of Zilla Parishad and he was also ruling party worker, such steps were taken by the State Government. Due to the aforesaid circumstances, Present Court holds that the petition needs to be allowed and the relief as claimed by the petitioner needs to be granted.

The decision of the Government granting permission to Respondent Nos. 5 and 6 to start 11th standard science division with effect from academic year 2011-12 stands quashed and set aside. The students who are admitted in said division are to be transferred to the nearest school as per the convenience of the students and care of those students is to be taken to see that they do not suffer in their academic year or in facing examinations of that standard. It will be open to Respondent Nos. 5 to 6 to approach the Government again and if the due procedure is followed, the Government will be entitled to consider the new proposal for future. The petition is allowed.

Relevant

Annaji Raut Shikshan Sanstha, Umri and another vs. Secretary, Department of Education and Employment, Bombay and others MANU/MH/1452/2001

Tags : Permission Grant Validity

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