Supreme Court

Municipal Corporation of Greater Mumbai & Ors. Vs. M/s. Sunbeam High Tech Developers Pvt. Ltd.

MANU/SC/1467/2019

24.10.2019

Civil

Illegal structures cannot be permitted to be re-erected merely because there was procedural violation while demolishing it

The municipal corporations in the State of Maharashtra like in any other part of the country are vested with the power to demolish structures which violate the laws and have been built without any building plans or in violation of the laws. Issue is relating to the directions issued by writ Court that, since the building has been demolished without following the procedure prescribed by law, the Petitioners before the High Court (Respondents before present Court) be permitted to reconstruct the structure. The question raised in present appeals is whether if a municipal corporation demolishes a structure in exercise of powers vested in it but in violation of the procedure prescribed, can the High Court direct the 'owner/occupier' of the building to reconstruct the demolished structure.

Present Court do not approve the action of the Municipal Corporation or its officials in demolishing the structures without following the procedure prescribed by law, but the relief which has to be given must be in accordance with law and not violative of the law. If a structure is an illegal structure, even though it has been demolished illegally, such a structure should not be permitted to come up again. If the Municipal Corporation violates the procedure while demolishing the building but the structure is totally illegal, some compensation can be awarded and, in all cases where such compensation is awarded the same should invariably be recovered from the officers who have acted in violation of law. The illegal structure cannot be permitted to be re-erected.

Assuming that the structure is not illegal then also the Court will first have to come to a finding that the structure was constructed legally. It must come to a clear cut finding as to the dimensions of the structure, what area it was covering and which part of the plot it was covering. In those cases the High Court, once it comes to the conclusion that the structure which has been demolished was not an illegal structure, may be justified in permitting reconstruction of the structure, but while doing so the Court must clearly indicate the structure it has permitted to be constructed; what will be the length of the structure; what will be its width; what will be its height; which side will the doors and windows face; how many number of storeys are permitted etc. It would be prudent to permit the structure to be built in accordance with the existing bylaws. Directions can be issued to the authorities to issue requisite permission for construction of a legal structure within a time bound period of about 60 days. This may vary from case to case depending upon the nature of the structure and the area where it is being built.

Blanket orders permitting re-erection will lead to unplanned and haphazard construction. This will cause problems to the general public. Even if the rights of private individuals have been violated in as much as sufficient notice for demolition was not given, in such cases structures erected in violation of the laws cannot be permitted to be re-erected. In all these cases, the High Court has not found that the structures were legal. It has passed the orders only on the ground that, the demolition was carried out without due notice. Compensation for demolished structure or even the cost of the new structure to be raised, if any, can be imposed upon the municipal authorities which should be recovered from the erring officials, but in no eventuality should an unplanned structure be permitted to be raised.

All concerned viz., the State, the Municipal authorities and the High Court need to take note and advantage of advancement in technology. It is directed that before any construction/reconstruction, or repair not being a tenantable repair is carried out, the owner/occupier/builder/contractor/architect, in fact all of them should be required to furnish a plan of the structure as it exists. This map can be taken on record and, thereafter, the construction can be permitted. In such an eventuality even if the demolition is illegal it will be easy to know what were the dimensions of the building. This information should not only be in paper form in the nature of a plan, but should also be in the form of 3D visual information, in the nature of photographs, videos etc.

When people raise illegal constructions, it is claimed that the said construction has been existing for long. The answer is to get Geo-mapping done. The relevant technology is Geographic Information System (GIS). If on Google Maps one can get a road view, there is no reason as to why this technology cannot be used by the municipal corporations. At the first stage we direct that all the cities in Maharashtra where the population is 50 lakhs or more the municipal authorities will get Geo-mapping done not only of the municipal areas but also of areas 10 Kms. from the outer boundary. This can be done by satellite, drones or vehicles. Once one has the whole city geomapped it would be easy to control illegal constructions. Further directions regarding the manner in which the evidence of illegal construction/reconstruction etc., is collected and notices are issued and served are issued by Supreme Court.

Tags : Demolished structure Reconstruction Direction

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High Court of Himachal Pradesh

Gulshan Kumar Vs. State of Himachal Pradesh and Ors.

MANU/HP/1663/2019

21.10.2019

Service

Punishment which is grossly in excess to allegations remains open for interference under scope of judicial review

In present case, departmental proceedings initiated against Appellant for which he was served a memorandum under Rule 14 of Central Civil Services (classification Control And Appeal) Rules, 1965 (CCS(CCA) Rules, 1965). The Inquiry Officer was appointed, who submitted his report to the Disciplinary Authority. The Inquiry Officer gave findings that the delinquent official drove the vehicle in a negligent manner, resulting in accident and the version put forth by the appellant that some unidentified persons had drugged him and thereafter dropped him at his residence was not accepted by the Inquiry Officer.

The Disciplinary Authority ordered the removal of the Appellant by passing a detailed/speaking order. The Appellant assailed the removal order. The Appellant thereafter filed statutory appeal and the same was dismissed by the Appellate Authority. Aggrieved by the order passed by the authorities below, the Appellant filed Petition and the same came to be dismissed by the learned Single Judge, constraining the Appellant to file the instant appeal.

It is more than settled that, doctrine of proportionality is a well recognized concept of judicial review. The power to impose penalty/punishment is within the discretionary domain and sole power of the decision maker to quantify once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention only if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in excess to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review.

A reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment. The Appellant admittedly was working as a driver at the relevant time and despite having caused an accident in which the departmental car was badly damaged thereby causing loss of Rs. 59,190, he did not even bother to inform the department, rather, the appellant chose to put up a concocted story.

It has to be remembered that the driver in a department is a man of confidence. Therefore, his conduct, attitude and understanding of responsibility and adherence to discipline is expected of him. The proven charges luminously project that the appellant had given all these aspects a total go-by and chosen to put up a cock and bull story. It is well-nigh impossible to hold that the punishment of removal is in any manner harsh and arbitrary.

Once an accident does take place, the driver of the vehicle, more particularly, when the vehicle belongs to a government department owes a duty to immediately bring the true facts leading to the accident to the notice of his employer and not put up a totally concocted story (like in the instant case) which on the face of it is not believable. Consequently, there is no merit in this appeal and accordingly the same is dismissed.

Tags : Disciplinary proceedings Removal Legality

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High Court of Himachal Pradesh

Mohammad Ali and Ors. Vs. State of Himachal Pradesh

MANU/HP/1669/2019

21.10.2019

Criminal

Bail is not to be withheld as a punishment; Court has to keep in mind nature of accusations and evidence in support thereof and severity of the punishment

In present matter, FIR came to be lodged against both the bail Petitioners. Issue in present case is relating to grant of bail. Learned Senior Counsel representing the bail Petitioners while praying for bail on behalf of the bail petitioners, submitted that, bare statements of victim-prosecutrix nowhere reveal case, if any, under Sections 376D of Indian Penal Code, 1860 (IPC) against the bail Petitioners and as such, they both deserves to be enlarged on bail.

It has been held by the Hon'ble Apex Court as well as present Court that till the time, guilt of individual is not proved in accordance with law, he/she is deemed to be innocent and in the case at hand also, guilt, if any, of the bail petitioners is yet to be proved in accordance with law by the prosecution by leading cogent and convincing evidence. No material has been placed on record suggestive of the fact that, in the event of bail Petitioners being enlarged on bail, they may temper with evidence or flee from justice. Moreover, bail Petitioners being local residents of the area shall always be available for investigation/trial as and when called as has been fairly stated by the learned counsel or the petitioners.

Object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise, bail is not to be withheld as a punishment. Otherwise also, normal rule is of bail and not jail. Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime.

Recently, the Hon'ble Apex Court in Criminal Appeal, Dataram Singh vs. State of Uttar Pradesh & Anr., has categorically held that a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. Hon'ble Apex Court further held that, while considering prayer for grant of bail, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing, when required by the investigating officer. Hon'ble Apex Court further held that, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an appropriate case.

Consequently, in view of the above, orders passed by this Court, is made absolute, subject to conditions that, they shall make themselves available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application. If the Petitioners misuse their liberty or violate any of the conditions imposed upon them, the investigating agency shall be free to move this Court for cancellation of the bail. The bail petitions stand disposed of accordingly.

Tags : Bail Grant of Conditions

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Supreme Court

State of West Bengal Vs. Indrajit Kundu and Ors.

MANU/SC/1442/2019

18.10.2019

Criminal

Word uttered in fit of anger or emotion without intending consequences to actually follow cannot be said to be instigation

Present appeal is preferred by the State of West Bengal through Principal Secretary, Home Department, aggrieved by the judgment passed by the High Court. By the impugned order, the Respondents-Accused were discharged of the charge framed against them under Section 306 read with Section 34 of Indian Penal Code, 1860 (IPC). On the complaint of the de facto complainant, a case was registered against Respondents under Section 306 of IPC and thereafter charge-sheet was filed.

From the material placed on record, it is clear that Respondents are sought to be proceeded for charge under Section 306/34 of IPC mainly relying on the suicide letters written by the deceased girl and the statements recorded during the investigation. The suicide committed by the victim cannot be said to be the result of any action on part of Respondents nor can it be said that commission of suicide by the victim was the only course open to her due to action of the Respondents. There was no goading or solicitation or insinuation by any of the Respondents to the victim to commit suicide.

In the case of Swamy Prahaladdas v. State of M.P. and Anr. Present Court while considering utterances like "to go and die" during the quarrel between husband and wife, uttered by husband held that utterances of such words are not direct cause for committing suicide. In such circumstances, in the aforesaid judgment this Court held that Sessions Judge erred in summoning the Appellant to face the trial and quashed the proceedings.

Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the Accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.

It is clear from the material on record that, there was no goading or solicitation or insinuation by any of the Respondents to the victim to commit suicide. There is no merit in present appeal so as to interfere with the well reasoned judgment of the High Court. Accordingly, appeal is dismissed.

Relevant

Swamy Prahaladdas v. State of M.P. and Anr. MANU/SC/1229/1995

Tags : Suicide Discharge Legality

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High Court of Delhi

Ranvir Singh Vs. Rajinder Kumar Jain

MANU/DE/3403/2019

18.10.2019

Tenancy

Bonafide necessity would lie only if there is a bonafide need as distinct from a mere desire for additional space

Petitioner impugns order whereby the leave to defend application of the Petitioner has been dismissed and an eviction order passed. Eviction petition was filed by the respondent on bonafide necessity under Section 14(1)(e) of the Delhi Rent Control Act, 1958 seeking eviction of the Petitioner.

Learned Senior Counsel for the Petitioner contends that, what Respondent has contended is a mere desire as distinct from a bonafide necessity to expand. He submits that no material has been placed to even prima facie show that there is any bonafide need.

A petition for eviction under Section 14(1)(e) of Act, 1958 on the ground of bonafide necessity would lie only if there is a bonafide need as distinct from a mere desire for additional space. Respondent has not placed on any material to even prima facie establish that there is a bonafide need to expand the business as distinct from mere desire or wish to expand the business.

As the plea of the Respondent is that material is available to establish that there is a genuine and bonafide need for expansion of business and for additional accommodation and no material is filed on record, an opportunity would be required to be given to the respondent to place on record additional material and to lead evidence. Further, application for leave to defend shows triable issues arise in the case. Petitioner in his affidavit filed in support of his application seeking leave to defend has raised grounds which, if proved, would disentitle the landlord of an order of eviction.

In view of the above, impugned order declining leave to defend is set aside. Leave to defend the eviction petition is granted to the Petitioner. Keeping in view the fact that petition was filed in the year 2013 and the respondent is aged 77 years, Rent Controller is directed to expedite the proceedings and endeavour to conclude the same within a period of nine months from the date fixed before the Rent Controller. Petition is allowed.

Tags : Eviction Leave to defend Entitlement

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Customs, Excise and Service Tax Appellate Tribunal

Sureel Enterprise Pvt. Ltd. Vs. C.C.E. & S.T., Ahmedabad-III

MANU/CS/0220/2019

18.10.2019

Service Tax

When contract between service provider and service recipient is of manufacturing, demand under man power supply cannot be made

The brief facts of the case are that, the Appellant entered into agreement with Nirma Limited, Bhavnagar (Nirma) accordingly to which the Appellant was supposed to manufacture detergent on job work basis. However, subsequently, they made another agreement accordingly to which the Appellant were required to carry out the process of converting the raw material into detergent/cake in the factory premises of Nirma at Bhavnagar with the machinery, material, land and building provided by Nirma. The case of the department is that, the Appellant provided manpower for manufacturing of detergent powder/cake to Nirma in its factory at Bhavnagar. Accordingly, the consideration received against the supply of manpower is leviable to service tax under the head of "Manpower Recruitment and Supply Agency Services".

The revenue has issued a show cause notice periodically for payment of service tax. The adjudicating authority holding that, the activity of the appellant is providing the services of "Manpower Recruitment and Supply Agency Services" confirmed demand of service tax. The demand of interest under section 75 of the Finance Act 1994, was made and penalty under section 76 and 78 was also imposed.

As per both the agreement that, the ultimate activity which is to be performed by the Appellant is to convert raw-material and packing material into packed detergent/cake irrespective of the fact whether the same is carried out in the Appellant's premises or at the premises of the service recipient i.e. Nirma Ltd. Even as per the agreement the clear understanding between the Appellant and Nirma Limited is not for supply of man power but to carry out manufacturing activity of detergent/cake, therefore, it is clear contract of manufacturing of excisable goods.

There is no dispute that the appellant after carrying out the manufacturing handed over the excisable goods to Nirma Ltd. who ultimately cleared the said goods on payment of excise duty. It is also observed that the appellant were paid the service charges, as per the quantity of excisable goods i.e. detergent/cake manufactured by the appellant and the consideration is not with reference to the number of man power/man hour deputed for the manufacturing of excisable goods. This also shows that, there is no contract between the Appellant and Nirma Ltd. for supply of man power. The activity carried out by the Appellant is at the most considered as "production or processing of goods on behalf of the client" which is covered under the service head of "Business Auxiliary Service". If this be so, then the service is exempted under Notification No. 8/2005-ST. Since, the demand was raised under wrong head i.e. Man Power Recruitment and Supply Agency Service, for this reason also, the demand is not sustainable.

Present tribunal time and again held that, if contract is for particular job and not for man power supply the demand of service tax under Man Power Recruitment and Supply Service cannot be raised. The impugned order is not sustainable. Hence, the same is set aside. The appeals are allowed.

Tags : Demand Confirmation Legality

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