Supreme Court

K.H. Nazar Vs. Mathew K. Jacob and Ors.

MANU/SC/1350/2019

30.09.2019

Property

Land used for quarrying is not covered by term ‘commercial site’ and therefore not exempted from applicability of Kerala Land Reforms Act

The width and amplitude of the expression 'commercial site' in Section 2(5) and Section 81(1)(q) of the Kerala Land Reforms Act, 1963, falls for consideration in present Appeals. Commercial sites are exempted from the purview of the Act. The question whether a rocky land which is used for quarrying purposes can be treated as a 'commercial site' and thereby excluded from the applicability of the Act.

The Appellant requested environmental clearance for his quarry which was recommended in his favour by the District Expert Appraisal Committee (DEAC) on 25.04.2017. Respondents No. 1 and 2 filed a Writ Petition aggrieved by the said recommendation to permit quarry on land which was a plantation site. It is relevant to note that the Appellant's land was exempted from the realm of the Act as it was a plantation.

The Writ Petition filed by Respondent No. 1 and 2 was heard by a Full Bench of the Kerala High Court comprising three Judges. The majority opinion was in favour of Respondent No. 1 and 2. It was held by the majority that the land which is used for quarrying is not covered by the expression 'commercial site'. Therefore, there can be no exemption of such land from the applicability of the Act. The Appellant is aggrieved by the said judgment of the Full Bench of the High Court.

In the present case, the Appellant is claiming exemption on the ground that, a quarry would fall within the sweep of 'commercial site' as stated in Section 81(1)(q). Commercial site is defined in Section 2(5) as any land (not being a kudiyiruppu or a kudikidappu or karaima) which is used principally for the purposes of any trade, commerce, industry, manufacture or business.

Section 81 exempts among others, lands comprised of mills, factories or workshops, lands occupied by educational institutions, and lands owned by Universities, religious and charitable institutions. House sites, sites of temples, churches and mosques, sites of buildings including warehouses and commercial sites are also exempted. There is a definite distinction between the expressions 'lands' and 'sites' in the context in which they have been used. Commercial sites read along with the other clauses dealing with sites clearly indicate that, land occupied by structures is described as 'site'.

The other clauses in Section 81 dealing with sites are house sites, temples, churches and mosques and buildings. As such, the expression 'commercial site' cannot take into its fold vacant lands, including lands used for the purpose of quarrying. It has a restrictive meaning in comparison to the other categories of 'land' in Section 81. Therefore, quarry cannot fit into the terms 'commercial site'. A commercial site is a land on which there is a structure being utilized for an industrial or commercial purpose. Extension of the words 'commercial site' to quarries would result in defeating the purpose of the Act.

Exemption of quarries by the Government under Section 81(3) would not arise, if quarries are covered by Section 81(1)(q) of the Act. If quarries are commercial sites, the need for their exemption in public interest does not arise. Section 81(3) of the Act empowers the Government to exempt lands for commercial purposes in public interest. The overriding power conferred on the Government to exempt lands from the applicability of the Act cannot be utilized for the purpose of interpretation of Section 81(1)(q) which exempts commercial sites from the purview of the Act. Section 81(1)(k) exempts unused lands of industrial or commercial undertakings at the time of commencement of the Act. The provision pre-supposes that, an industrial or commercial undertaking was existing on the date of the commencement of the Act and there was some land set apart for the use of the undertaking in future. The said land is exempted only if the land is used for the industrial or commercial purposes of the undertaking within the time to be fixed by the authority. If the land is not used for the purpose for which it was set apart, the exemption ceases to operate. It is clear from the above that Section 81(1)(k) deals with a completely different type of land belonging to an industrial or commercial undertaking set apart for use of the said undertaking.

Breaking of rock into small pieces of stone is not a manufacturing activity. In Rajasthan SEB v. Associated Stone Industries, it was held that, cutting and polishing stones into slabs is not a process of manufacture for the obvious and simple reason that no new and distinct commercial product came into existence as the end product still remained stone and thus its original identity continued.

The interpretation of Section 81 which exempts certain lands and sites should be interpreted in a manner, which promotes the object of the Act and restricts concentration of large swathes of land in favour of a few individuals. Wider construction of the words 'commercial site' would defeat the laudable object of the Act. There is no error in the majority opinion of the Full Bench in the impugned judgment which requires to be upheld. The Appeals are dismissed, accordingly.

Relevant

Rajasthan SEB v. Associated Stone Industries MANU/SC/0399/2000

Tags : Quarrying purposes Exemption Entitlement

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High Court of Bombay

St. Isabel's High School Vs. The Education Inspector and Ors.

MANU/MH/2693/2019

27.09.2019

Service

Right to choose and appoint an employee cannot be taken away merely because Government Resolution prescribes a maximum age limit of 33 years

The Petitioner - St. Isabel's High School, invokes the jurisdiction of present Court under Article 226 of the Constitution of India to challenge the impugned Government Resolution ('GR') dated 25th November, 2005 of the Respondent No. 2 - State Government to the extent, it prescribes a maximum appointment age of 33 years for Shikshan Sevaks/ Junior Clerk. Consequently, the Petitioner prays for setting aside the impugned order passed by Respondent No. 1 - the Education Inspector thereby not approving the proposal submitted by the Petitioner for approval of the appointment of a junior clerk, Shri Godwin D'Almeida.

The question is whether the said GR. stipulating maximum age limit of 33 years amounts to putting fetters on their right to select staff of their own choice being minority institution under Article 30(1) of the Constitution of India. Further, whether the State Government by issuance of G.R. is empowered to prescribe maximum age limit when no such limit is prescribed by the 'Rules'.

Merely prescribing a maximum age limit does not take away the right to choose and appoint an employee of the Petitioner's choice. The right to choose and appoint an employee in the non teaching staff still rests with the petitioner. What the State has done is to prescribe a maximum age limit of 33 years for non teaching employees for the purpose of approval. This in no manner can be construed as putting fetters on the right to choose and appoint an employee of the choice of the minority institution.

Reading of Rule 9(1)(4a) and (4b) of Maharashtra Employees of Private Schools Rules, 1981 would reveal that in respect of appointment to be made to any post in a primary school, a candidate shall not be less than 18 years of age and more than 28 years of age. However, in so far as an appointment to be made to any post in any school other than primary school, Rule 9(4b) provides that candidate shall not be below 18 years of age. Rule 9(4b) does not provide for the maximum age limit in respect of employees in any school other than primary school.

It is not possible to accept the submission of Petitioner that, their right to choose and appoint an employee is taken away merely because GR. prescribes a maximum age limit of 33 years. The petitioners obviously have a right to choose and appoint an employee of their choice subject to the maximum age limit of 33 years. For the purpose of grant-in-aid and releasing salary grants, the State has formulated revised structure and norms which are in consonance with the provisions of the Act and the Rules. This in no manner takes away the right of petitioner to administer the minority educational institution. The fundamental right guaranteed under Article 30(1) of the Constitution of India cannot be said to be infringed merely on a prescription made by the State Government stipulating maximum age limit for the purpose of approving the appointment of a non teaching staff.

The salary grant of the non teaching employees is to be released only if the appointment of the employee is approved. The G.R. lays down the detailed revised structure and the norms to be applied to the non teaching staff in the State. There is no embargo on the petitioner - institution in making appointment of an employee of their choice even beyond the maximum age limit, but if the petitioner is seeking approval for the purpose of releasing salary grant, then it is not open for the Petitioner to contend that the State Government cannot provide any norms prescribing the conditions for approval.

The G.R. issued by the State is not at all contrary to the mandate of Rule 4(b). In the absence of a stipulation of maximum age limit in the 'Rules' for appointment of a non teaching employee, the State is well within its rights to prescribe the upper age limit as a condition of approval in the revised structure and norms to fill the non teaching posts in a given method. The right of the Petitioner to choose and appoint an employee of its own choice is in no manner restricted. The Petitioner, if seeks approval for the appointment of a non teaching employee, then it has to necessarily comply with the norms prescribed by the G.R. Petition dismissed.

Tags : Resolution Maximum age Legality

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High Court of Bombay

Vasant Khela Sarak and Ors. Vs. State of Maharashtra and Ors.

MANU/MH/2685/2019

26.09.2019

Service

The scope of judicial review is limited; Court cannot substitute its own value judgment for that of appointing authority

The Petitioners, who are working on the establishment of present Court as 'Personal Assistants', have filed present petition taking exception to the prescription of shorthand test, as a selection criteria, for promotion to the post of 'Private Secretary' to the Judges of this Court.

Before institution of present petition, the Petitioners had submitted a representation to the High Court Administration on 3rd September 2018 for dispensing with shorthand test for promotion to the post of Private Secretary to the Judges. The High Court Administration, by communication informed the Petitioners that the representation was considered by the Administrative Judges' Committee in its meeting and it has been decided to reject the said representation. The Petitioners have, thus, assailed the said communication, dated 11th February 2019 and have sought a declaration that Rule 13 of the High Court Appellate Side Service Rules, 2000 ('the Service Rules, 2000') does not envisage holding of a shorthand test, and a consequential direction to the High Court Administration that, the Petitioners be promoted to the post of Private Secretary without conducting shorthand/typing test.

The pivotal question which crop up for consideration is whether the prescription of shorthand test for promotion to the post of 'Private Secretary' is in conformity with the Service Rules, 2000 and within the province of the authority of the Hon'ble Chief Justice.

The historical perspective of creation of the posts of Personal Secretary and Private Secretary purportedly for removal of stagnation, does not justify an inference that promotion to the post of Private Secretary from the feeder cadre of Personal Assistant is to be made on the basis of seniority alone.

It is also well settled that, what should be the criteria for the selection is a matter within the province of the appointing authority. The scope of judicial review in this regard is extremely limited. The only aspect which the Court can consider is whether there is any rational nexus between the selection criteria and the duties and functions of the post for which said criteria is prescribed. The Court cannot substitute its own value judgment for that of the appointing authority.

The proficiency in Stenography has an important bearing upon discharge of the duties by Private Secretaries. It cannot be gainsaid that the efficiency and proficiency have a defining functional nexus with the discharge of the duties by the Private Secretaries. Ultimately, inefficiency and unpolished skills of a Private Secretary would adversely affect the discharge of the functions by the Judges. Thus, the prescription of stenography/shorthand test has rational nexus with duties attached to the post of Private Secretary.

The prescription of the criteria of shorthand test emanates from the very concept of selection envisaged by Rule 13 of the Service Rules, 2000. Secondly, the second proviso to Rule 60 expressly saves the said criteria, which has been in operation since prior to the enforcement of the Rules. Thirdly, the prescription of shorthand test is necessary for maintaining the efficiency in the administration of justice. Resultantly, the challenge raised in the instant petition is unworthy of countenance. The petition, thus, stands dismissed.

Tags : Selection Criteria Legality

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Supreme Court

Raj Kumar v. The State of Uttar Pradesh

MANU/SC/1384/2019

04.10.2019

Criminal

Person can be convicted under Prevention of Food Adulteration Act, 1954 even if there is marginal deviation from prescribed standard

In facts of present case, on 30th October, 1995 a sample of milk was collected from the Appellant by the Food Inspector. The same was sent to the Public Analyst. The sample was analysed and Milk Fat (MF for short) was found to be 4.6% and Milk Solid Non-Fat (MSNF) was 7.7%, against the prescribed standard of 8.5%. The Appellant was prosecuted after obtaining consent of the Chief Medical Officer, and was convicted by trial court, which conviction was upheld by the Sessions Court and the High Court.

Learned counsel for the Appellant raised number of issues. The first was that, there was delay in analysing the sample and, therefore, marginal shortfall in MSNF should be overlooked, since it would have been caused by the delay in testing the sample. This contention is not accepted because there is no material on record to support this assertion. The appellant did not even deem it fit to summon the Public Analyst for cross¬examination for this purpose.

In similar circumstances, where the delay in testing the samples was of 44 days, this Court in Shambhu Dayal vs. State of U. P. held that, since the sample had been preserved by using formalin, as in the present case, the Accused cannot get any benefit.

The second contention raised was that, the provisions of Section 13(2)2 of the Prevention of Food Adulteration Act, 1954 were not complied with as the Appellant was not given an opportunity to send his second sample to the Central Food Laboratory (CFL) for analysis. This argument is also without any merit. All the courts have given a finding of fact that, notice under Section 13(2) of the Act was sent to the Appellant on 18.02.1996. The Appellant did not choose to exercise his option to get his sample analysed by the CFL.

Once standards are laid down by the Legislature then those standards have to be followed. In items like milk which is a primary food, under the Act, it is also not necessary to prove that the food item had become unfit for human consumption or injurious to health. In cases of food coming under the Act, it is not required to prove that article of food was injurious to health.

If article fails to comply with the standards then it will have to be treated as an adulterated article even if it is not rendered injurious to health. Even marginal deviation from the prescribed standard cannot be ignored. In view of the above settled law, it is held that, if the standards are not complied with, the Court is not justified in acquitting the accused charged with adulteration only on the ground that the deficiency is marginal.

The power under Article 142 of Constitution of India, 1950 cannot be exercised against the specific provision of law. Section 16(1)(a) of the Act lays down a minimum sentence of six months. Considering the bane of adulteration and the deleterious effect of adulteration and substandard food on the health of the citizens (especially children when milk is involved), the Legislature provided a minimum sentence of six months. Passage of time can be no excuse to award a sentence lower than the minimum.

Furthermore, the power under Article 142, cannot be used in total violation of the law. When a minimum sentence is prescribed by law, this Court cannot, in exercise of its power under Article 142, pass an order totally contrary to law. If such power could be used in a food adulteration case to impose a sentence lower than the minimum prescribed, then even in cases of murder and rape, this Court applying the same principles could impose a sentence less than the minimum. This, is not the purpose of Article 142. Powers under Article 142 cannot be exercised in such a manner that they make a mockery of the law itself. There is no merit in the case and the same is dismissed.

Tags : Adulteration Conviction Legality

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Supreme Court

Sudam Vs. The State of Maharashtra

MANU/SC/1354/2019

01.10.2019

Criminal

Punishment of life imprisonment is not unquestionably foreclosed in spite of gravity and barbarity of offence

The instant review proceedings pertain to Review Petition seeking to review the final judgment passed by this Court confirming conviction under Sections 201 and 302 of the Indian Penal Code, 1860 (IPC). Vide the impugned judgment, present Court upheld the sentence under Section 201, of IPC and the death sentence under Section 302 of IPC imposed upon the Petitioner.

Learned Counsel for the Petitioner argued for the acquittal of the Petitioner, contending that, there are various infirmities in how the material on record has been appreciated by the Courts, in addition to highlighting errors apparent on the face of the record.

The entire case of the prosecution is built upon circumstantial evidence. Present Court, in appeal, affirmed the findings of the Courts below regarding the conviction of the Petitioner. There is no ground for interference with any finding of the Courts with respect to the appreciation of the testimony relating to the "last seen" circumstance, the extra judicial confession made to PW-9, and the motive of the Petitioner.

The evidence relied upon in the instant case is purely circumstantial, including the motive to commit the offence, the circumstance of the deceased being last seen with the Petitioner, and two extra-judicial confessions. Thus, keeping aside the extra-judicial confession to PW-6, it is evident that evidence as to the circumstance of motive, the "last seen" circumstance as well as one extra-judicial confession still survive. The chain of circumstances establishing the guilt of the Petitioner beyond reasonable doubt is not materially affected even if present Court discard one of the two extra-judicial confessions. Thus, present Court rightly affirmed the conviction of the Petitioner under Sections 302 and 201 of IPC, and there is no cause to interfere with finding of guilt.

In Ashok Debbarma v. State of Tripura, present Court elaborated upon the concept of "residual doubt"--which simply means that in spite of being convinced of the guilt of the Accused beyond reasonable doubt, the Court may harbour lingering or residual doubts in its mind regarding such guilt.

While the concept of "residual doubt" has undoubtedly not been given much attention in Indian capital sentencing jurisprudence, the fact remains that this Court has on several occasions held the quality of evidence to a higher standard for passing the irrevocable sentence of death than that which governs conviction, that is to say, it has found it unsafe to award the death penalty for convictions based on the nature of the circumstantial evidence on record.

The Court in Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra further observed that, the irrevocable punishment of death must only be imposed when there is no other alternative, and asserted that in cases resting on circumstantial evidence, the doctrine of prudence should be invoked

There was a reasonable probability that this Court would have set aside the sentence of death in appeal, since the only surviving evidence against the Petitioner herein pertains to his motive to commit the crime, the circumstance of "last seen" and a solitary extra-judicial confession. In other words, it cannot be said that the punishment of life imprisonment is unquestionably foreclosed in the instant case, in spite of the gravity and barbarity of the offence. The award of the death penalty in the instant case, based on the evidence on record, cannot be upheld.

A sentence of life imprisonment simpliciter would be inadequate in the instant case, given the gruesome nature of the offence, and the menace posed to society at large by the Petitioner, as evinced by the conduct of the Petitioner in jail. As per the report submitted in pursuance of the order of this Court dated 31.10.2018, it has been brought on record that the conduct of the Petitioner in jail has been unsatisfactory, and that he gets aggressive and indulges in illegal activities in prison, intentionally abusing prisoners and prison staff and provoking fights with other prisoners. Two FIRs have also been registered against the Petitioner for abusing and threatening the Superintendent of the Nagpur Central Prison.

As this Court has already held in a catena of decisions, by way of a via media between life imprisonment simpliciter and the death sentence, it may be appropriate to impose a restriction on the Petitioner's right to remission of the sentence of life imprisonment, which usually works out to 14 years in prison upon remission. Therefore, it is directed that, the Petitioner shall remain in prison for the remainder of his life. The review petitions are allowed to the extent that the sentence of death awarded to the Petitioner is commuted to imprisonment for the remainder of his life sans any right to remission.

Relevant

Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra MANU/SC/0801/2009
, Ashok Debbarma v. State of Tripura, MANU/SC/0168/2014

Tags : Conviction Death sentence Legality

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Supreme Court

Mohinder Kaur Vs. Sant Paul Singh

MANU/SC/1358/2019

01.10.2019

Civil

Power of attorney holder cannot testify in respect of matters which principal alone have knowledge

The Defendant is in appeal, aggrieved by the concurrent findings decreeing the suit for specific performance filed by the Respondent. The Plaintiff filed the instant suit seeking specific performance of the agreement by the Defendant. The suit was decreed and the appeal preferred by the Defendant was also dismissed.

It is an undisputed fact that, the suit property stood redeemed from mortgage on 4th July, 1989. The Appellant sent due intimation by registered post to the Respondent on 27th July, 1989 and also provided him with a photocopy of the release deed, requiring the Respondent to take steps for execution of the sale deed. The Respondent by reply dated 2nd August, 1989 insisted on the no-dues certificate, denying receipt of the release deed. The Respondent then gave a power of attorney on 2nd November, 1989 to PW-1. The witness was naturally unaware of the preceding events and denied receipt of the notice dated 27th July, 1989 itself. The witness was therefore also incompetent to deny receipt of photocopy of the release documents by the Respondent.

It was for the Respondent to establish his readiness and willingness for execution of the agreement by entering the witness box and proving his capacity to pay the balance consideration amount. Except for the solitary statement in the plaint, no evidence whatsoever was led on behalf of the Respondent with regard to the same, if PW-1 was competent to depose with regard to the same because these were facts which had to be personal to the knowledge of the Respondent alone. The witness also sought to deny any knowledge regarding the cancellation of the agreement on 1st September, 1989.

In Janki Vashdeo Bhojwani and Anr. v. Indusind Bank Ltd. and Ors., it was held that, a power of attorney holder, who has acted in pursuance of the said power, may depose on behalf of the principal in respect of such acts but cannot depose for the principal for the acts done by the principal and not by the power of attorney holder. Likewise, the power of attorney holder cannot depose for the principal in respect of matters of which the principal alone can have personal knowledge and in respect of which the principal is entitled to be cross-examined. The failure of the Respondent to appear in the witness box can well be considered to raise an adverse presumption against him. The agreement was cancelled by the Appellant on 1st September, 1989 and the consideration already paid confiscated under intimation to the Respondent. The Respondent never challenged the communication of cancellation.

Merely because the Respondent may not have been satisfied by the intimation given by the Appellant regarding release of the property from mortgage, it cannot be construed as readiness and willingness on part of the Respondent and his capacity to perform his obligations under the agreement, particularly when he is stated to have subsequently migrated to America and in which circumstance he executed the power of attorney in favour of PW-1. The relief of specific performance being discretionary in nature, the Respondent cannot be held to have established his case for grant of same. The conclusions of the High Court, both on aspects of readiness and willingness of the Respondent and lack of due intimation by the Appellant to the Respondent regarding redemption of the mortgage are held to be unsustainable. The appeals are allowed.

Relevant

Janki Vashdeo Bhojwani and Anr. v. Indusind Bank Ltd. and Ors. MANU/SC/1030/2004

Tags : Specific performance Decree Validity

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