Supreme Court

Mysore Urban Development Authority Vs. K.M. Chikkathayamma and Ors.

MANU/SC/0951/2018

07.09.2018

Land Acquisition

Legality of impugned order cannot be examined on basis of acts done by parties subsequent to passing of impugned order

Petitions are against the final judgment passed by the High Court whereby the High Court dismissed the appeals filed by the Appellant herein. The short question, which arises for consideration in these appeals, is whether the Division Bench was right in dismissing the appeals "as not pressed".

Supreme Court is of opinion that, Division Bench should have decided the appeals on merits in accordance with law. On perusal of the resolution dated 2nd July, 2016, Government letter dated 26th June, 2018 and the letter dated 14th November, 2017 of the Commissioner and further keeping in view the relevant provisions of the Karnataka Urban Development Authorities Act, 1987, Supreme Court is of the view that the appeals filed by the Mysore Urban Development Authority (MUDA) could not have been dismissed "as not pressed".

Neither there was any express prayer made by the MUDA and nor it could be inferred from the document relied on by the Division Bench at the instance of Respondents (writ Petitioners) for forming an opinion "not to press the appeal". In other words, the opinion formed by the High Court for dismissing the appeals "as not pressed" had no basis. Such dismissal, certainly deprived the MUDA of their right to prosecute the appeals on merits.

A right of appeal is a valuable right of a litigant. He is entitled to prosecute this right as it enables him to seek adjudication of the issues on merits, which are subject matter of the appeal by the Appellate Court. He can, however, forgo such right but it has to be done with express authority and free will. The Respondents, however, cannot compel the Appellant to give up the right of prosecuting the appeal unless the Respondents are able to show any express provision in law in that behalf or valid reasons acceptable in law which deprive the Appellant from prosecuting his grievance in appeal.

If the Appellant is a juristic entity created under the Act, they have to ensure strict compliance of the relevant provisions of the Act under which they are created coupled with ensuring compliance of relevant provisions of the Code of Civil Procedure, 1908 (CPC) for forgoing their right to prosecute the appeal on merits. If, for some reasons, there are two rival groups in a juristic entity, one prays for withdrawal and the other insisting for hearing the appeal then it is the duty of the Court to first resolve this issue in the light of the relevant provisions of law and then proceed to decide the appeal accordingly. Similarly, when such prayer is made at the instance of the Respondent and is opposed by the Appellant, the same has to be dealt with strictly in accordance with law by the Appellate Court.

The legality and correctness of the impugned order has to be examined in the light of reasoning contained in the impugned order and not on the basis of the acts done by the parties subsequent to the passing of impugned order. It is for this reason the acts done by the party subsequent to passing of the impugned order are of no relevance for deciding the present appeals. The appeals are accordingly allowed. Impugned order in both the matters are set aside. The writ appeals out of which these appeals arise are accordingly restored to their original numbers. The High Court is requested to decide the appeals on merits in accordance with law.

Tags : Dismissal Subsequent acts Relevance

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High Court of Jammu and Kashmir

Mohammad Yaseen Shah Vs. Ghulam Nabi Rather and Ors.

MANU/JK/0719/2018

07.09.2018

Civil

If a 'necessary party' is not impleaded, the suit itself is liable to be dismissed

In instant matter, challenge is thrown to the order passed by the trial Court on an application under Order I Rule 10 of the Code of Civil Procedure, 1908 (CPC), filed by the Respondent no. 5. By the impugned order, the learned trial Court allowed the application and arrayed the Respondent no. 5 as the party Defendant in the civil suit. It has been stated on behalf of the Petitioner that, trial Court without adverting to the core issues germane for deciding the application for impleadment as a party Defendant to a Suit and in complete ignorantia of law as the Court has no jurisdiction to add a party unless it is a necessary party, which is not the case at all in the present case.

The general rule in regard to the impleadment of the parties is that, the Plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the Plaintiff. But this general rule is subject to the provisions of Order I Rule 10(2) of the CPC, which provides for impleadment of proper or necessary parties. The said provision makes it clear that, a Court may, at any stage of the proceedings, including the suits for specific performance, either upon or even without any application, and on such terms as may appear to it to be just, direct adding of any person who ought to have been joined as Plaintiff or Defendant, but not added; or any person whose presence before the Court may be necessary in order to enable the Court to effectively and completely adjudicate upon and settle the question involved in the suit.

The Court is given the discretion to add as a party any person who is found to be a necessary party or proper party. A 'necessary party' is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. If a 'necessary party' is not impleaded, the suit itself is liable to be dismissed.

A 'proper party' is a party who, though not a necessary party, is a person whose presence would enable the Court to completely, effectively and adequately adjudicate upon all matters in disputes in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the Court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the Plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance. In the present case, the learned Trial Court has passed a well-reasoned order, impugned herein and given the above discussion, the same need not be interfered with. Revision petition dismissed.

Tags : Impleadment Jurisdiction Validity

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High Court of Jammu and Kashmir

Ban Labs Ltd. and Ors. Vs. Drugs Inspector and Ors.

MANU/JK/0711/2018

07.09.2018

Criminal

Only Inspector appointed by Central Government or State Government by notification in official Gazette is competent to launch prosecution

In present matter, the case of the Petitioners is that, Petitioner No. 1 is a Public Limited Company having its registered office. The Petitioner No. 2 claims to be the Chairman of the said Company. It is stated that, Petitioner No. 1-Company has been granted license, to manufacture for sale of the Ayurvedic drugs; that the said license has been last renewed under Rule 155 of the Drugs and Cosmetics Rules, 1945.

The Petitioners states that, Respondent has filed a criminal complaint under Sections 18(a), 18(b) and 18(c) read with Sections 27(b) and 27(d) of the Drugs and Cosmetics Act, 1940 against the petitioners and one Bharat Bhushan Mantoo (accused No. 1 in the complaint). Petitioners have stated that Respondent No. 1 while conducting the action, has not complied the provision of Chapter IVA of Drug and Cosmetic Act, which is applicable to Ayurvedic, Siddha and Unani Drugs; that, Drug Inspector who filed the complaint was not competent, because he was not Inspector appointed as per chapter IVA of the Act.

Appointment of inspectors for launching prosecution under chapter IV and IVA of Act are quite different. For launching prosecution in chapter IV inspectors are appointed under section 21 of Act, whereas for launching prosecution under chapter IVA of Act, the inspector are appointed under section 33G of Act. Section 33G deals with appointment of the Inspectors which says that the Central Government or a State Government may, by notification in the Official Gazette, appoint such persons as it thinks fit, having certain prescribed qualifications and it has laid down their duties, functions who could launch prosecution for breach of any of the provisions relating to Ayurvedic, Siddha or Unani drugs.

The Provisions of Chapter IVA of Act deals with special branch of medicines like, Ayurvedic, Siddha and Unani drugs and it contains complete procedure and authority who would be competent to launch prosecution. As already stated under Section 33G(4) of the Act, it is only inspector who is appointed by Central Government or State Government by notification in official Gazette is competent to launch prosecution. The Inspector appointed under Section 21 of Act, occurring under Chapter IV of the Act is, thus, not competent to launch prosecutions for breach of violation of any provision of chapter IVA of Act.

Admittedly, in the present case, Respondent No. 1 has not been appointed in terms of Section 33G, but he has been appointed in terms of Section 21 of the Act. Therefore, as per law, he was not competent to prosecute the petitioners for the offences under Chapter IV-A which deals with Ayurvedic, Siddha and Unani Drugs. The only Inspector appointed by the Central Government or State Government under Section 33-G of Act, was authorized to launch prosecution for the alleged offences, if any, committed under Chapter IV-A of the Act. Therefore, entire prosecution launched by inspector appointed under Section 21 of Act for violation of provision of provisions of Chapter IVA of Act is without jurisdiction. The impugned proceedings initiated against the Petitioners are herby quashed.

Tags : Proceeding Inspector Competency

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High Court of Bombay

Pune Municipal Corporation Vs. Prudent Polyconsultants Pvt. Ltd.

MANU/MH/2571/2018

06.09.2018

Contract

No contract shall bind the Corporation if not made in accordance with the provisions of Act

The Pune Municipal Corporation has preferred present First Appeal against the money decree passed by the trial Court. The Learned Trial Judge, by the impugned judgment has held that, the Plaintiffs have proved their suit claim, having found that there was a concluded contract between the parties. The learned Trial judge held that, Corporation is bound to compensate the Plaintiffs by paying professional fees even thought the money has not reached to the Corporation and as such decree was drawn whereby the defendants were held liable to pay a sum of Rs. 7,08,50,000 towards professional charges alongwith future interest.

It is settled position of law that, where a Statute requires that a thing shall be done in a prescribed manner or format but does not set out any consequences of non-compliance, the question whether provision was mandatory or directory has to be adjudged in the light of the intention of the Legislature as disclosed by the object, purpose and the scope of the Statute. If the Statute is mandatory, the thing done not in the manner of the format prescribed could have no effect or validity, but if it is directory, penalty may be incurred for non-compliance but the Act or a thing done is recorded as a go.

Intention in enacting the provisions contained in Section 74 of the Bombay Provincial Municipal Corporations Act, 1949 is that, the Corporation should not be saddled with liability for unauthorised contracts and with that object provided that, contracts are executed on behalf of the Corporation, in the manner prescribed by authorised person. The Rules contained in Chapter-V Schedule-'D' appended to the Act and sub-section 2 of Section 74 of Act, makes it amply clear that, no contract shall bind the Corporation if not made in accordance with the provisions of this Act, that the said provisions are mandatory.

In the case in hand, admittedly no contract was executed between the Plaintiffs and the Corporation either in the prescribed form or otherwise. The Committee was well conscious of this fact even before granting approval to appoint the plaintiffs for procuring the loan and thus directed the Corporation to execute Agreement with the plaintiffs. Thus, in absence of the contract as required under Section 74 of the said Act, as well as, in terms of the Standing Committee Resolution, all further Acts even including the Mandate would not further the case of the Plaintiff.

Infact, letter dated 1st July, 2000 was conditional whereby Corporation communicated to the Finance Company that, it shall not be obliged to pay fees and if any of the said approvals could not be obtained for any reason beyond the control of the PMC. Further, the Corporation informed the Finance Company that the final letter of acceptance shall be issued on obtaining approval of the Standing Committee in its ensuing meeting. The Plaintiffs were appointed to arrange loan, but was subject to agreement. Admittedly, no agreement was executed. Appeal is allowed and the decree of the trial Court is quashed and set aside.

Tags : Money decree Loan Sanction

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Customs, Excise and Service Tax Appellate Tribunal

Euro Footwear Ltd. Vs. Commissioner of Central Excise, Kanpur

MANU/CN/0101/2018

06.09.2018

Excise

In making refunds claims, an assessee is bound within four corners of Statute and period of limitation prescribed in Central Excise Act and Rules framed therein

The Appellants are engaged in the manufacture and export of Leather Footwear. They were paying service tax on 'reverse charge basis', in respect of services obtained by them from foreign service provider. The period involved in the present appeal is prior to 18th April, 2006.

Subsequently, in terms of the Hon'ble Bombay High Court's decision in the case of Indian National Shipowners' Association vs. Union of India, no service tax was payable on 'reverse charge basis' for the period prior to 18th April, 2006, when the provisions of Section 66A were introduced in the Statute Book. Accordingly, the Appellant filed refund claims alongwith interest, which was originally rejected by the Adjudicating Authority on merits as also on limitation. On appeal Commissioner (Appeals) held in favour of the Appellant on merits, in terms of the law declared by the Hon'ble Bombay High Court but rejected the claim on the point of limitation. The only issue to be decided in the present appeal is as to whether the refund claim filed by the Appellant would be barred by limitation or not.

All the refunds claims filed by assessee are required to be dealt with in terms of the provision of Section 11B of Central Excise Act, 1944 which provides a normal period of limitation of one year from the relevant date, unless said payment of tax/duty was under protest or in terms of the provisional assessments. The Tribunal working within the four corners of the Act is required to decide all the disputes falling under the Act, in terms of the provisions of the Act only.

The Apex Court in the case of Collector of Central Excise, Chandigarh vs. M/s. Doaba Co-Operative Sugar Mills Limited laid down that, in making claims for refunds before the departmental authority an assessee is bound within four corners of the Statute and the period of limitation prescribed in the Central Excise Act and Rules framed therein must be adhered to as the authorities functioning under the Act are bound by the provisions of the Act.

In view of the foregoing decisions of the Hon'ble Supreme Court, the limitation as provided under Section 11B of Act, is to be applied to each and every refund claim. The refunds in the present case having been admittedly filed beyond the period of limitation of one year are barred by limitation. Appeal is rejected.

Relevant

Indian National Shipowners' Association vs. Union of India reported at MANU/MH/0213/2009
, Collector of Central Excise, Chandigarh vs. M/s. Doaba Co-Operative Sugar Mills Limited reported at MANU/SC/0085/1988

Tags : Refund Denial Validity

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National Consumer Disputes Redressal Commission

Royal Sundaram General Insurance Co. Ltd. and Ors. Vs. Davubhai Babubhai Ravaliya

MANU/CF/0600/2018

04.09.2018

Consumer

Consumption of liquor beyond a safe limit disqualifies the insured from getting benefits of insurance policy

The complainant/Respondent owned a vehicle which he had got insured with the Petitioner Company. The vehicle having met with an accident, on 4th December, 2010, the intimation of the accident was sent to the Petitioner Company on 4th February, 2011. The complainant thereafter, lodged a claim for re-imbursement in respect of the loss suffered by him on account of damage to the vehicle. The claim however, was repudiated vide letter.

Being aggrieved from the repudiation of the claim, the complainant/respondent approached the concerned District Forum. The District Forum dismissed the complaint, the complainant/respondent approached the concerned State Commission by way of an appeal. The State Commission allowed the appeal and directed the Petitioner to pay a sum of Rs. 2,75,285 to the complainant, alongwith compensation and the cost of litigation, the Petitioner is before present Commission by way of this revision petition.

Condition no. 1(c) of the insurance policy provides that, any accidental loss or damage suffered whilst the insured or any person driving the private car with the knowledge and consent of the insured is under the influence of intoxicating liquor or drugs. If a person driving a private car with the knowledge and consent of the insured, is under influence of liquor or drugs at the time an accidental loss or damage is suffered by the vehicle, the insurance company is not liable to reimburse the said loss.

The purpose of the insurer behind excluding the cases of accident when the insured is under influence of intoxicating liquor is to ensure that the consumption of the liquor does not lead or contribute to happening of the accident in which the insured dies or injured. Therefore, consumption of liquor beyond a safe limit must necessarily disqualify the insured from getting the benefits of the insurance policy taken by him. The quantity of alcohol allowed to the driver of a motor vehicle is not more than 100 mg/100 ml of the blood in any country, including USA though, in our country it is only 30 mg/100 ml of blood. Therefore, if a person is found to have consumed more than 103.14 mg of alcohol/100 ml of his blood, which is position in present case, it would be reasonable to say that, he was under the influence of the intoxicating liquor at the time he died or got injured.

The State Commission has taken a view that, the complainant was not aware of the driver having taken alcohol. That however, was not the requirement of the insurance policy, for repudiation of the claim. Insurer was required to prove that, the vehicle was being driven by a person who was under the influence of liquor and he was driving the said vehicle with the knowledge and consent of the insured. In the present case, the driver was related to the insured and this is not the case of the complainant that, the vehicle was being driven by Mr. Dadubhai Maldebhai Ravaliya without his consent and knowledge. Therefore, in view of the above extracted condition of the insurance policy, the insurer is not liable to reimburse the complainant for the loss suffered by him on account of damage to the vehicle. The impugned order therefore, cannot be sustained and the said order is set aside.

Tags : Compensation Grant Legality

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