2 December 2019


Judgments

Supreme Court

Vinod Kumar Garg Vs. State (Government of National Capital Territory of Delhi)

MANU/SC/1635/2019

27.11.2019

Criminal

A mere error, omission or irregularity in sanction is not fatal unless it has resulted in a failure of justice

The impugned judgment passed by the High Court upholding conviction of the Appellant under Sections 7 and 13 of the Prevention of Corruption Act, 1988 imposed by the Special Judge, Delhi vide judgment is challenged in present case. The Appellant has been sentenced to undergo rigorous imprisonment for one and a half years, and fine of Rs. 1,000 for each offence and in default of payment to undergo simple imprisonment for three months on both counts separately. The sentences have been directed to run concurrently.

In the case at hand, the condition precedent to drawing legal presumption that, the Accused has demanded and was paid the bribe money has been proved and established by the incriminating material on record. Thus, the presumption under Section 20 of the Act becomes applicable for the offence committed by the Appellant under Section 7 of the Act. The Appellant was found in possession of the bribe money and no reasonable explanation is forthcoming that may rebut the presumption. Further, the recovery of the money from the pocket of the Appellant has also been proved without doubt. Money was demanded and accepted not as a legal remuneration but as a motive or reward to provide electricity connection to Nand Lal (PW-2) for the shed.

In the present case, Navin Chawla (PW-1) had issued and granted sanction for prosecution of the Appellant. He had deposed that, the Appellant was working as an inspector in DESU and he was the competent officer to remove him. He had, after carefully examining the allegations contained in the material placed before him, granted the sanction for prosecution vide order.

Present Court in Ashok Tshering Bhutia v. State of Sikkim, has observed that a defect or irregularity in investigation however serious, would have no direct bearing on the competence or procedure relating to cognizance or trial. Where the cognizance of the case has already been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless a miscarriage of justice has been caused thereby. Similar is the position with regard to the validity of the sanction. A mere error, omission or irregularity in sanction is not considered to be fatal unless it has resulted in a failure of justice or has been occasioned thereby. The conviction of the Appellant under Sections 7 and 13 of the Act and the sentences as imposed is upheld. Appeal dismissed.

Relevant

Ashok Tshering Bhutia v. State of Sikkim MANU/SC/0156/2011

Tags : Conviction Legality

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Supreme Court

V. Rajaram Vs. State

MANU/SC/1626/2019

26.11.2019

Criminal

Public servant should have disobeyed any directions of law with intention to save any person from legal punishment in order to make out offence under Section 217 of IPC

Present appeals arise out of the judgment and order passed by the High Court by which the High Court set aside the order of acquittal passed by the Principal Sessions Judge, and convicted the Appellant-Accused No. 17 under Sections 217 of Indian Penal Code, 1860 (IPC) and 221 of IPC and sentenced him to undergo rigorous imprisonment for one year and four years respectively.

The point falling for consideration is whether the judgment of the trial Court qua the Appellant was perverse and whether there were substantial grounds for the High Court to reverse the order of acquittal of the Appellant recorded by the trial court and convict the Appellant for the offences punishable under Sections 217 of IPC and 221 of IPC.

The Appellant has been convicted for the offences punishable under Sections 217 of IPC and 221 of IPC. At the relevant time, the Appellant was the Deputy Superintendent of Police of the jurisdictional Division. The allegation against the Appellant is that, he disobeyed the laws with intention to save the Accused from legal punishment and also intentionally allowed the Accused to escape from the place of occurrence and therefore, he is charged for the offences punishable under Sections 217 of IPC and 221 of IPC.

The evidence of PW-29 and Ex.-P82 clearly show that, PW-30-Additional Superintendent of Police was the officer In-charge of the security bandobust. The Appellant, who was the Deputy Superintendent of Police at the relevant time was under the supervision and control of PW-30. In his evidence, PW-30 has not stated anything about the Appellant having disobeyed his orders. In order to attract the ingredients of Section 217 of IPC, there should have been disobedience of the direction of law with intention to save the Accused. The prosecution has not adduced any evidence to show that, the Appellant-Accused has disobeyed the direction of law or the direction of the superior officer-PW-30 or acted with the intention of saving the Accused.

One of the essential ingredients to make out the offence under Section 217 of IPC is that, the public servant should have disobeyed any directions of law with the intention to save any person from legal punishment. In the present case, there is no evidence to show that the Appellant has disobeyed the directions of any law. On the contrary, there is clear evidence to show that the Appellant, PW-1-Sub-Inspector of Police and other police personnel have used mild force against the miscreants and thus, chased them away to prevent any further untoward incident. Absolutely, there is no evidence to show that the Appellant did not obey the command of PW-30 or PW-29-Superintendent of Police who were present on the spot for issuing directions and commands. There is no evidence to prove that the Appellant omitted to do any act to sustain the conviction under Section 217 of IPC.

With regard to conviction under Section 221 of IPC is concerned, one of the essential ingredients of Section 221 of IPC is the intentional omission to apprehend a person or intentionally aiding such person to escape. PW-29-Superintendent of Police and PW-30-Additional Superintendent of Police who were present on the spot issued directions and accordingly, the Appellant acted. After the occurrence was over, PW-29 directed the Appellant to search for the Accused. Accordingly, the Appellant went in search of the Accused and arrested Accused. There is no evidence to show that, the Appellant intentionally omitted to apprehend the Accused on the spot to sustain the conviction under Section 221 of IPC.

Upon appreciation of evidence and considering the ingredients of Sections 217 and 221 of IPC, the trial court acquitted the Appellant. When the trial Court has recorded the finding that, the ingredients of Sections 217 and 221 of IPC are not made out which is a plausible view, the High Court could not have substituted its views with the conclusion of the trial court. The High Court was not right in reversing the order of acquittal passed by the trial court and the impugned judgment qua the Appellant is not sustainable and the Appellant is acquitted. In the result, the impugned judgment and order passed by the High Court convicting the Appellant-Accused No. 17 under Sections 217 of IPC and 221 of IPC are set aside and appeals are allowed.

Tags : Acquittal Reversal Legality

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Supreme Court

Jitendra Singh Vs. Ministry of Environment and Ors.

MANU/SC/1615/2019

25.11.2019

Environment

'Ponds' are a public utility meant for common use and could not be allotted or commercialised

The instant statutory appeal has been preferred under Section 22 of the National Green Tribunal Act, 2010 ("NGT Act") against the order of the Principal Bench of the National Green Tribunal ("NGT"), whereby Appellant's grievance against allotment of local ponds to private industrialists has been dismissed summarily without any adjudication of the lis or merits, but merely on the basis of an affidavit filed by Respondent No. 5 (Greater Noida Industrial Development Authority- "GNIDA") claiming that, it was developing bigger alternative water-bodies.

Question raised in present case is whether it is permissible for the State to alienate common water- bodies for industrial activities, under the guise of providing alternatives.

In Hinch Lal Tiwari v. Kamala Devi, this Court settled that 'ponds' were a public utility meant for common use and held that they could not be allotted or commercialised. It had refused to give any weight to similar arguments of the pond having become levelled, with merely some portion getting covered during rainy season by water.

The action of the Respondent-authorities contravenes their Constitutional obligations. Article 48-A of the Constitution of India, 1950 casts a duty on the State to "endeavour to protect and improve the environment and to safeguard the forests and wild life of the country", and Article 51-A(g) expects every citizen to perform his fundamental duty to "protect and improve the natural environment". A perusal of Constitutional scheme and judicial development of environmental law further shows tha, all persons have a right to a healthy environment. The State is nothing but a collective embodiment of citizens, and hence collective duties of citizens can constructively be imposed on the State.

It is the responsibility of the Respondents to ensure the protection and integrity of the environment, especially one which is a source for livelihood for rural population and life for local flora and fauna. Protection of such village-commons is essential to safeguard the fundamental right guaranteed by Article 21 of our Constitution. These common areas are the lifeline of village communities, and often sustain various chores and provide resources necessary for life. Waterbodies, specifically, are an important source of fishery and much needed potable water. Many areas of this country perennially face a water crisis and access to drinking water is woefully inadequate for most Indians. Allowing such invaluable community resources to be taken over by a few is hence grossly illegal.

The Respondents' scheme of allowing destruction of existing water bodies and providing for replacements, exhibits a mechanical application of environmental protection. Although, it might be possible to superficially replicate a waterbody elsewhere, however, there is no guarantee that the adverse effect of destroying the earlier one would be offset. Destroying the lake would kill the vegetation around it and would prevent seepage of groundwater which would affect the already low water-table in the area. The people living around the lake would be compelled to travel all the way to the alternative site. Many animals and marine organisms present in the earlier site would perish, and wouldn't resuscitate by merely filling a hole with water elsewhere.

Further, the soil quality and other factors at the alternate site might not be conducive to growth of the same flora, and the local environment would be altered permanently. The Respondents' reduction of the complex and cascading effects of extinguishing natural water-bodies into mere numbers and their attempt to justify the same through replacement by geographically larger artificial water-bodies, fails to capture the spirit of the Constitutional scheme and is, therefore, impermissible.

Hence, it is clear that, schemes which extinguish local waterbodies albeit with alternatives, as provided in the 2016 Government Order by the State of UP, are violative of Constitutional principles and are liable to be struck down. The allotment of all water bodies (both ponds and canals) to Respondent No. 6, or any other similar third party in village is held to be illegal and the same is hereby quashed. The impugned order passed by the NGT is set aside. Appeal allowed.

Relevant

Hinch Lal Tiwari v. Kamala Devi MANU/SC/0410/2001

Tags : Allotment Ponds Legality

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High Court of Delhi

National Highways Authority of India Vs. Ssangyong Engineering & Construction Co. Ltd.

MANU/DE/3948/2019

25.11.2019

Arbitration

A party to an arbitration proceeding can challenge the arbitral award as soon as he receives it

The challenge in present petition under Section 34 of the Arbitration and Conciliation Act, 1996, is to an award/interim award dated May 18, 2019 passed by the Arbitral Tribunal whereby the Arbitral Tribunal has allowed the application filed by the Respondent herein for grant of two amounts of Rs. 1,32,79,591 and 92,22,236. Learned counsel appearing for the Respondent has taken a preliminary objection on the maintainability of the petition on the ground that, it is barred by limitation.

Learned Senior Counsel appearing for the Petitioner states that, the first petition was filed as an appeal under Section 37 of the Act of 1996 on August 14, 2019 and the appeal was pursued by the petitioner till October 22, 2019, when the counsel appearing for the Petitioner withdrew the appeal as was not maintainable. As, between August 14, 2019 and October 22, 2019, the Petitioner, was prosecuting a wrong remedy, it shall be entitled to the benefit of Section 14 of the Limitation Act, 1963 and if that period is excluded, the petition filed by the petitioner on November 06, 2019 is within limitation.

Present Court is not in agreement with the submission made by Petitioner for the reason that, the date of award being May 18, 2019, and there is no dispute that the copy of the award having received on that day itself, the limitation of three months as contemplated under Section 34(3) of the Act of 1996 expired on August 18, 2019. Assuming for a moment, the Petitioner could have sought the benefit of further 30 days in filing the petition, even those 30 days had expired on September 18, 2019.

The Petitioner was notified by the Registry to file it in the correct category which is under Section 34 of the Act of 1996 and the petition having been filed on November 06, 2019, which is beyond the period of limitation which has expired on September 18, 2019 or for that matter on October 09, 2019. In view of the judgment of the Supreme Court in the case of Union of India v. Popular Construction Company, it is settled position of law that, recourse to the Court against an arbitral award cannot be made beyond the period prescribed under Section 34 of the Act of 1996, the petition is liable to be dismissed.

Similarly, reiterating the position of law as held in the case of Popular Construction Company, the Apex Court in P. Radha Bai and Ors. v. P. Ashok Kumar and Ors., also held that a party to an arbitration proceeding can challenge the arbitral award as soon as he receives it. It was further held that once an award is received, the party is presumed to have knowledge of the same, and the limitation period under Section 34(3) of the Act of 1996 is said to have commenced. The present petition being hit by limitation is not maintainable and the same is dismissed without going into the merits on the challenge to the impugned award.

Relevant

Union of India v. Popular Construction Company, MANU/SC/0613/2001
, P. Radha Bai and Ors. v. P. Ashok Kumar and Ors., MANU/SC/1063/2018

Tags : Arbitral award Maintainability Time period

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NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI

Parsoli Motors Works Pvt. Ltd. Vs. BMW India Private Limited and Ors.

MANU/NL/0560/2019

25.11.2019

MRTP/ Competition Laws

Refusal to renew dealership of Informant resulting in pecuniary loss does not raise any competition concern, even if, dealership termination has proved advantageous to dealers of Opposite Party

Present appeal arises out of order passed by the Competition Commission of India ('CCI') under Section 26(2) of the Competition Act, 2002 in Case whereby the information relating to allegations of contravention of provisions of Section 4 of the Act filed by the Appellant (Informant before CCI) was ordered to be closed on the ground that, the existing Dealership Agreement between the Appellant and Respondent No. 1 stood expired by efflux of time on 31st December, 2017 due to non-renewal thereof and the Informant had not challenged any term of the aforesaid Dealership Agreement which has since expired.

Abuse of dominant position by an enterprise, forbidden under Section 4 of the Act, essentially arises out of a position of strength enjoyed by an enterprise in the relevant market enabling it to operate independent of the competitive forces or affects its competitors or consumers or the relevant market in a manner that tilts the balance in its favour. While holding and enjoyment of a dominant position in itself is not prohibited, its abuse is proscribed. It is therefore relevant to ascertain whether OP-1 did enjoy a position of strength and was dominant in passenger car segment in India and if so, whether termination of the dealership of Informant ensued the consequence of abuse of such dominant position.

It is not in dispute that, the Informant was a dealer for BMW vehicles for the Gujarat State under a Dealership Agreement and it enjoyed such position since 2001 in terms of an agreement executed inter-se the relevant parties. The dealership was to last till 31st December, 2017. However, OP-1 shot letter dated 7th December, 2017 intimating the Informant that the existing dealership would not be renewed and would expire on 31st December, 2017.

The contention put forward on behalf of the Informant that, while it was not given sufficient time to exit from the business and the effect of termination of its dealership had the effect of allowing dealers outside Gujarat to sell BMW cars to customers in Gujarat resulting in loss to the Gujarat Exchequer besides causing financial loss to the Informant, would amount to abuse of dominant position is without substance. Even if it is assumed for the sake of argument that the termination of the dealership of the Informant or refusal on the part of OP-1 to further renew dealership in favour of the Informant is in derogation of the policy framed in this regard and the Informant had altered its position by raising infrastructure and making investment for running such dealership, breach thereof may give rise to civil liability but not have the consequence of abuse of dominant position. Nothing has been placed on record to establish that in the relevant market i.e. the segment of passenger cars, BMW India enjoyed a dominant position.

The material available in public domain which has been considered by the CCI unmistakably demonstrates that BMW India had insignificant presence in the relevant market and BMW passenger cars did not occupy a significant market share. Merely because, the act of refusal on the part of OP-1 to renew dealership of Informant beyond 31st December, 2017 may have caused pecuniary loss to the Informant does not raise any competition concern, even if, the consequence of such termination of dealership has proved advantageous to the dealers of OP-1 in neighbouring states of Gujarat to sell BMW cars to customers hailing from Gujarat.

The Informant is said to have obtained financing facilities from OP-2 for running its business and default of debt advanced by OP-2 to the Informant is stated to be staggering amount exceeding Rs. 54 Crores, in respect whereof OP-2 is stated to have filed application under Section 7 of the Insolvency and Bankruptcy Code, 2016 pending consideration before the Adjudicating Authority (National Company Law Tribunal). In the context of this factual background, the allegation emanating from the Respondents that the information filed by the Informant with CCI raising competition concern was merely as a counterblast cannot be dismissed offhand. The appeal is accordingly dismissed.

Tags : Information Closure Legality

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NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI

P.M. Mahendran Vs. Tharuvai Ramachandran Ravichandran and Ors.

MANU/NL/0559/2019

22.11.2019

Insolvency

Where there is an existence of dispute prior to issuance of Demand Notice, Adjudicating Authority must reject the application

Present appeal is arising out of the impugned order passed by the Adjudicating Authority (National Company Law Tribunal, Division Bench), admitting the application filed by the 2nd Respondent herein under Section 9 read with Rule-6 of Insolvency and Bankruptcy Code, 2016 ('IBC').

Learned Counsel for the Appellant challenged the said order on the ground that, the application filed by the 2nd Respondent herein is not maintainable in view of the reason that there is existence of dispute prior to issuance of Demand Notice by the 2nd Respondent. Learned Counsel for the Respondent submitted that the 2nd Respondent supplied and delivered the materials in pursuance to the Purchase Orders made by the 3rd Respondent and the 3rd Respondent had defaulted in making payments. The only issue is whether there is a pre-existing of dispute prior to issuance of the Demand Notice dated 4th December, 2018 or not?

As per e-mail dated 31st October, 2018, it is clear that the Corporate Debtor raised a dispute prior to issuance of Demand Notice dated 4th December, 2018. The Operational Creditor did not deny the receipt of the mail and its contents. From the reading of Section 8(2)(a) of IBC, it is apparent that, the moment there is existence of a dispute, the Corporate Debtor gets out of the clutches of the rigours of the Code. Further, it is only to be seen that where the dispute raised by the Corporate Debtor qualifies as a dispute as defined under Section 5(6) of IBC.

From all the correspondences between the Corporate Debtor and the Operational Creditor, it is clear that there is a pre-existing dispute raised by the Corporate Debtor prior to issuance of Demand Notice dated 04.12.2018. It is a settled law that where there is an existence of dispute prior to the issuance of Demand Notice, the Adjudicating Authority must reject the application as held by the Hon'ble Supreme Court in "Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software (P) Limited.

From the correspondences, it is clear that there is pre-existence dispute with regard to quality and service prior to issuance of Demand Notice. Hence, the appeal is allowed and order passed by the Adjudicating Authority is quashed and set aside. Steps taken in consequence of Impugned Order and further Orders passed during Corporate Insolvency Resolution Process are all quashed and set aside.

The Corporate Debtor is released from rigour of Corporate Insolvency Resolution Process. The Interim Resolution Professional/Resolution Professional will hand over the assets and records to the Corporate Debtor/Promoter/Board of Directors. Henceforth, the Corporate Debtor will function independently through its Board of Directors.

Operational Creditor is liable to pay the CIRP cost and fees of the Interim Resolution Professional/Resolution Professional. The Interim Resolution Professional/Resolution Professional will file report before the Adjudicating Authority with regard to his fee, CIRP cost and the Adjudicating Authority is requested to pass orders to recover the same from the Operational Creditor. The appeal is disposed of accordingly.

Relevant

Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software (P) Limited - MANU/SC/1196/2017

Tags : Dispute Existence Application Maintainability

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