Supreme Court

Saraswatibai Vs. Lalitabai and Ors.

MANU/SC/0052/2019

22.01.2019

Criminal

Once Investigating Officer submitted final report on conclusion of investigation, High Court was not justified in interfering with criminal proceedings

In instant matter, the Appellant herein-original Complainant filed a Criminal Complaint against the private Respondents herein-the original Accused before the learned Magistrate alleging, that the complainant purchased a plot from Respondent No. 1 by way of a registered sale deed in the year 2005. After sale of the plot, the original owner-accused No. 1 fraudulently resold the plot in 2010 in favour of Accused No. 2 by re-designating as "Plot No. 24".

It was alleged that, the all Accused persons and one another have committed offences under Sections 420, 464, 465, 467, 468, 471 read with Section 34 of Indian Penal Code, 1860 (IPC). The learned Magistrate passed an order for investigation under Section 156(3) of the Code of Criminal Procedure(CrPC). The police lodged an FIR for the aforesaid offences. That the Accused thereafter approached the High Court to quash the FIR by way of a Petition under Section 482 of CrPC. The High Court quashed and the criminal proceedings including the Final Report, hence, the Original Complainant has preferred the present appeals.

After the conclusion of investigation, the Investigating Officer submitted the Final Report under Section 173 of the CrPC, concluding that the Accused have colluded and committed offences Under Sections 420, 464, 465, 467, 468, 471 read with Section 34 of IPC. Once the Final Report was submitted under Section 173 of the CrPC, normally the Accused, if aggrieved by the Final Report shall be relegated to approach the Magistrate for discharge. Even the High Court in the impugned order has also observed so. Despite the above, the High Court has without further discussing anything on merits of the Final Report has quashed the entire criminal proceedings, including the Final Report.

In the facts and circumstances of the case, once the Investigating Officer submitted the Final Report on conclusion of the investigation, the High Court was not justified in interfering with the criminal proceedings in exercise of power under Section 482 of the CrPC and particularly when in the Final Report, it was specifically concluded on the basis of the material on record that a prima facie case is made out for the offences alleged against the Accused persons. Therefore, in the facts and circumstances of the case, the High Court has clearly erred in exercise of powers under Section 482 of the CrPC and in quashing and setting aside the criminal proceedings including the Final Report.

The impugned judgment and order passed by the High Court is quashed and set aside. Consequently, the prosecution against the Accused to proceed further in accordance with law. The appeals are allowed accordingly.

Tags : Proceedings Quashing of Validity

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Supreme Court

State of Kerala and Ors. Vs. Mohammed Basheer

MANU/SC/0057/2019

22.01.2019

Property

When enactment enjoins that any evidence would be treated as conclusive proof, law would forbid other evidence to be adduced for contradicting aforesaid conclusiveness

The Respondent herein filed a petition in the Forest Tribunal, under Section 8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971 ('the KPF Act') for settlement of the dispute in relation to land. The Appellants filed a counter-affidavit disputing the claim of the Respondent. It was contended that, the land has not been cultivated and that the certificate of purchase produced by the Respondent is not binding on them. The Respondent was not in possession of the land as on the date of vesting or subsequent to that date. The land was vested in the government on 10th May, 1971 and is under the custody of the Forest Department since then. Since there is no evidence to show the Respondent's title or possession over the land on the appointed day, his claim under Sections 3(2) and 3(3) of the KPF Act is not sustainable.

The Tribunal by its order dismissed the petition. The Respondent challenged the said order by filing an appeal before the High Court. The High Court, by its order, allowed the writ petition and set aside the order of the Tribunal. The review petition filed by the Appellant-State was dismissed by the High Court.

Sub-section (2) of Section 3 of the KPF Act provides for the exemption of the private forest from vesting. It states that the land comprised in private forest held by an owner under his personal cultivation is exempted from vesting, if the ceiling limit under the Kerala Land Reforms Act is not exceeded. The land in question measures about 2 acres. It is not the case of the Appellants that, the land exceeds the ceiling limit under the Kerala Land Reforms Act. The expression 'held by the owner under his personal cultivation' contained in Sub-section (2) of Section 3 of the KPF Act is crucial. To bring the land under the exempted category, the claimant should hold the same as an owner and that it should be under his personal cultivation. 'To own' is to have good legal title to hold and possess the property.

It is well settled that, when the enactment enjoins that any evidence would be treated as a conclusive proof of certain factual situation or legal hypothesis, the law would forbid other evidence to be adduced for the purpose of contradicting or varying the aforesaid conclusiveness. This is the principle embodied in Section 4 of the Evidence Act, 1872 when it defines "conclusive proof"

In the instant case, the land in question is jenmam land. The Land Tribunal initiated suo motu proceedings Under Rule 5 of the Land Reform Rules, after obtaining information that the cultivating tenant had been in possession, obviously on a report of the revenue inspector. It is evident from Section 74 of the Land Reforms Act that any tenancy after 01.04.1964 is prohibited. Any tenancy created after that date is invalid. The Land Tribunal initiating proceedings under Section 72B in favour of the cultivating tenant would be considering the possession of a tenant as on the said date which is far earlier than the KPF Act. Possession and title under the certificate of purchase have to relate back to a date prior to the date of vesting under the Land Reforms Act. Therefore, there is no question of vesting of the land in the Government under the KPF Act which has come into force subsequent to the date of Land Reforms Act. As noted above, the certificate of purchase issued under the Land Reforms Act is attributed with statutory conclusiveness as regards ownership/title Under Sub-section (2) of Section 72K. The certificate issued by a competent Land Tribunal after finding that the tenant was in possession of the property as a cultivating tenant is a conclusive proof of possession as well.

The certificate of purchase was issued by the Land Tribunal, under Sub-section (1) of Section 72K. Sub-section (2) of Section 72K of the Land Reforms Act clearly states that, the certificate of purchase issued under Sub-section (1) shall be a conclusive proof of the assignment to the tenant of the right, title and interest of the landlord and the intermediaries, if any, over the holding or portion thereof to which the assignment relates. Thus whatever right, title and interest, the landlord had in the land, has been assigned in favour of the Respondent under the certificate of purchase.

Therefore, the Respondent is the owner of the land as he has legal title to hold the said land. The certificate is also a conclusive proof of the fact that, the Respondent has been in possession of the land as a cultivating tenant right from the date of vesting of the land under the Kerala Land Reforms Act. The land in question is exempted from vesting in the State under Sub-section (2) of Section 3 of the KPF Act. In the instant case, the Respondent has established that he is the owner and in possession of the land on the appointed day on the basis of certificate of purchase and other materials placed on record. The appeals dismissed.

Tags : Land Title Proof

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High Court of Delhi

Delhi Milk Scheme Employees Union (Regd.) and Ors. Vs. The Union of India and Ors.

MANU/DE/0174/2019

21.01.2019

Commercial

A policy decision is amenable to judicial review only if it is contrary to any provision of Constitution or statute, or otherwise capricious or arbitrary

The challenge in present petition is to a tender dated 27th June, 2018, whereby the Union of India has invited bids from prospective concessionaires to take over the operations and management of the Delhi Milk Scheme ["DMS"] for a period of thirty years. The Petitioners claim to be a registered Union of workers of DMS and its President.

DMS was established in 1959 and functions as a subordinate office of the Ministry of Agriculture and Farmers Welfare of the Government of India (hereinafter referred to as "the Government"). Its objectives are to supply milk and dairy products to the citizens of Delhi, whilst assuring remunerative prices to milk producers. It has a plant and an office complex in New Delhi, milk collection and chilling centers located in and around Delhi, and 566 milk booths all over the city. By the impugned tender, the Government seeks to enter into an operations and management arrangement to ensure optimal capacity utilization and efficient management of the DMS plant, initially for a period of 30 years. The successful bidder is required to pay an "Annual Lease Rental" to the Government.

Present Court is not inclined to entertain a challenge to a decision of this nature at the instance of a workers' union. Such a decision is essentially a matter of policy as to the most appropriate arrangement for the efficient and productive management of an asset owned by the Government. A policy decision is amenable to judicial review only if it is contrary to any provision of the Constitution or statute, or otherwise capricious or arbitrary.

It is not open to the Petitioners herein to assail the impugned tender on the grounds contained in the writ petition. The impugned tender permits the concessionaire to select willing DMS employees to continue under the concessionaire, with the remaining employees being absorbed in the surplus pool of the Government. The writ petition dismissed.

Tags : Tender Issuance Validity

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High Court of Punjab and Haryana

Rajinder Kumar Sharma Vs. Suresh Kumar and Ors.

MANU/PH/0037/2019

18.01.2019

Motor Vehicles

Mere relationship or being an acquaintance cannot be sole ground to discard the testimony of an otherwise reliable witness

Rajinder Kumar Sharma, owner of the vehicle in question has filed the instant appeal assailing the award passed by the Tribunal. A claim petition was filed under Section 166 of the Motor Vehicles Act, 1988 seeking compensation to the tune of Rs. 80 lakhs on account of death of Nitish Kumar in a motor vehicle accident that took place on 25th March, 2015. FIR came to be lodged at Police Station, on the statement of uncle of the deceased.

Counsel representing the Appellant/owner of the vehicle argues that it is a case of misreading and mis-appreciation of evidence. FIR had been lodged against an unknown driver and unknown vehicle. He argues that, it was a clear case of hit and run and a convenient vehicle has been introduced with a view to claim compensation.

Inspite of PW-1 and PW-3 having deposed that, they had read the registration number of the offending truck, yet, the FIR had been registered against an unknown vehicle being driven by an unknown person. It is in intriguing that even though, PW-1 states that the Driving License of the driver of the offending vehicle had fallen out of the pocket of the driver and the same had been picked up and handed over to the police, still, particulars of the driver did not find a mention in the FIR. Furthermore, on the one hand PW-1 has deposed that he was the solitary witness to the accident and that Ritesh @ Hitesh Kumar, PW-3 had reached thereafter and that he had told him about the offending truck having struck the motorcycle, PW-3 claims himself to be following the deceased and having witnessed the accident himself. The variations in the deposition of PW-1 and PW-3 cannot be overlooked. They would go to the root of the matter.

PW-3 concededly is the real uncle of the deceased. Even Kanwal Kumar is a resident of the same village as the deceased and has admitted in his deposition that he was on visiting terms with the family of the deceased. Mere relationship or being an acquaintance cannot be the sole ground to discard the testimony of an otherwise reliable witness but in the peculiar facts and circumstances of the case and by noticing the glaring contradictions, this Court would not hesitate to record that PW-1 and PW-3 have been planted as witnesses so as to introduce the offending vehicle.

It is a settled proposition of law that in cases relating to motor accident claims, the claimants are not required to prove the case as it is required to be done in a criminal trial. The standard of proof i.e. beyond reasonable doubt is not to be applied in such cases. The claimants are to establish their case on the touch stone of preponderance of probability. In the present case even going by the principle of preponderance of probability and by examining the deposition of PW-1 and PW-3, this Court would conclude that the offending truck was not involved in the accident.

The material contradictions in the statements of the two alleged eye witnesses PW-1 and PW-3 have been overlooked by the Tribunal. Undoubtedly, the police have filed a challan against the driver but the same in isolation would not be conclusive with regard to involvement of the offending truck in the peculiar facts and circumstances of the case. The impugned award passed by the Tribunal is set aside. Present appeal is allowed.

Tags : Award Compensation Validity

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Central Administrative Tribunal

Brajendralal Singh Vs. Union of India and Ors.

MANU/CA/0032/2019

18.01.2019

Service

Review is permissible if there is a discovery of a new or important facts or evidence, which was not within applicant's knowledge

Present Review Application, filed by the applicant of the OA No. 17/2018, is directed against the order of present Tribunal dismissing the Original Application (OA). The Review Application has been filed within the time stipulated under the rules. The Applicant, while working as a part time contingent worker under the Respondents, was selected for the post of Gramin Dak Sevak (GDS) and he joined as GDS on 2nd May, 1998. Subsequently after being aware of the fact that casual labourers are to be given temporary status, he claimed for such benefit, which was not agreed. The OA filed by him was dismissed vide order.

Under the law review of the order of the Tribunal is permissible under the Rule 1, Order 47 of the Civil Procedure Code, which specifies limited grounds for permitting such review. The review is permissible if there is a discovery of a new or important facts or evidence, which was not within the applicant's knowledge and which after exercise of due diligence was not within his knowledge or could not be produced at the time of consideration of his OA as provided under Rule 1, Order 47. In this case, the applicant claims that he had earlier submitted a letter dated 2nd May, 1998, by which, he has informed the authorities if he will be entitled for other posts other than EDDA/GDS, then his case should be considered for such post after rejecting his appointment as EDDA/GDS. The applicant argues that he has not relinquished his post of Contingent Waterman in view of this letter dated 2nd May, 1998.

Admittedly, the applicant had left the post of Contingent Waterman and accepted the post of EDDA/GDS on 2nd May, 1998. If there is any benefit that would have been admissible as part time contingent waterman, the same would be available if he would have continued in the said post and after his discontinuation as Contingent Waterman, his claim for the said post would not be tenable as held in the impugned order dated 7th August, 2018.

Further, if the letter dated 2nd May, 1998 had been submitted by the applicant as claimed in the Review Application, it cannot be said that this document was not within the knowledge of the applicant. If his plea that this document was misplaced would-be accepted, the applicant could have claimed about such letter in the OA. Hence, the letter dated 2nd May, 1998 cannot be treated as a new fact or document which was not within the knowledge of the applicant at the time of filing the OA even after due diligence. Hence, the grounds mentioned in the Review Application are not permissible grounds for reviewing the impugned order. Accordingly, the Review Application dismissed.

Tags : Review Permissibility Valid ground

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Customs, Excise and Service Tax Appellate Tribunal

Commissioner Customs (EP), Mumbai Vs. Viraj Impex Pvt. Ltd.

MANU/CM/0026/2019

18.01.2019

Customs

Declared price/transaction value is required to be accepted unless there are valid reasons for rejection of such value

Present two Appeals have been filed by Revenue from the common impugned order passed by the Commissioner of Customs (Appeals), by which Commissioner allowed both the Appeals filed by the Respondent herein, set aside the order passed by the Adjudicating Authority and directed that the declared price be accepted as transaction value in each case and the bills of entry be reassessed to duty accordingly.

In present matter, the revenue wants to enhance the declared value of Hot Rolled Coils (HR Coils) on the bases of alleged contemporaneous imports Hot Rolled Plates (HR Plates). Issue involved in present matter is whether the HR Steel Plates, with which the adjudicating authority has compared the HR Coils, are really similar goods in terms of definition of similar goods.

The valuation of imported goods is required to be done in terms of Section 14 of Customs Act, 1962 read with the Customs Valuation Rules, 2007. The transaction value of imported goods can be rejected only as per the provisions of Rule 12. As per Clause (iii) of explanation under Rule 12, if contemporary import of identical or similar goods is noticed at the higher price, invoice value can be rejected and same can be determined under Rule 5 to 9 of the Rules. The said Rule 12 provide for proper officer seeking clarification from the importer to provide further information to satisfy the correctness of the declared assessable value. In the present case, the Respondents did submit the invoice, irrecoverable LC and supporting contract documents with reference to the impugned consignments. Nothing more is required with the importer to further substantiate the value. Merely because the assessee failed to submit any payment certificate or Bill of Exchange, the Assessing officer rejected the value declared by the respondent/assessee. The Assessing officer has to give valid reasons in order to reject the declared value and thereafter to proceed with the re-assessment, after due enhancement.

HR Coil and HR Steel Plates cannot be said to be similar or identical goods. If the revenue is rejecting the value declared by the Respondent, then they are bound to prove beyond reasonable doubt that the goods compared with are similar goods or identical goods. HR Coils and HR Plates cannot be termed as one and the same for the purpose of contemporaneous value. Both the goods are different in nature and therefore the values relied upon by the Department for enhancement of declared value is not legally sustainable. It is not the case of revenue that it is either a Hawala transaction or remittance of additional consideration by the respondent to the exporter, over and above the declared transaction value. The value declared by the Respondent was to be remitted through the banking channel.

The Revenue has failed to establish its claim on the basis of contemporaneous import. The Adjudicating Authority has erred in rejecting the declared price/transaction value of the goods imported by the respondent by taking recourse to Rule 12 of Rules, 2007. Section 14 of Act as well as Rules, do not sanction such a method, as adopted by the Adjudicating Authority, for redetermination of assessable value. The declared price/transaction value is required to be accepted unless there are valid reasons for rejection of such value as provided in Customs Valuation Rules. In the present case, no valid reasons have been recorded by the Adjudicating Authority for rejecting the declared price/transaction value of HR Coils except the contemporaneous import price of HR Steel Plates, which is not valid. Therefore, no fault with the impugned order and the Appeal filed by Revenue is accordingly dismissed.

Tags : Assessable value Determination Validity

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