Supreme Court

Vidya Devi Vs. The State of Himachal Pradesh and Ors.

MANU/SC/0016/2020

08.01.2020

Property

State cannot be permitted to perfect its title over the land by invoking doctrine of adverse possession to grab property of its own citizens

The Appellant now almost 80 years old, was undisputedly the owner of land admeasuring about 3.34 Hectares in Himachal Pradesh. The Respondent-State took over the land of the Appellant in 1967-68 for the construction of a major District Road being the Nadaun-Sujanpur Road, a major District Road without taking recourse to acquisition proceedings, or following due process of law.

The High Court vide the impugned judgment and Order held that, the matter involved disputed questions of law and fact for determination on the starting point of limitation, which could not be adjudicated in Writ proceedings. Aggrieved, the Appellant filed a Review Petition against the judgment and Order which was dismissed vide Order.

The Appellant was forcibly expropriated of her property in 1967, when the right to property was a fundamental right guaranteed by Article 31 in Part III of the Constitution of India, 1950. Article 31 of the Constitution guaranteed the right to private property, which could not be deprived without due process of law and upon just and fair compensation.

The right to property ceased to be a fundamental right by the Constitution (Forty Fourth Amendment) Act, 1978, however, it continued to be a human right in a welfare State, and a Constitutional right under Article 300A of the Constitution. Article 300A of the Constitution provides that no person shall be deprived of his property save by authority of law. The State cannot dispossess a citizen of his property except in accordance with the procedure established by law. The obligation to pay compensation, though not expressly included in Article 300A of the Constitution, can be inferred in that Article.

To forcibly dispossess a person of his private property, without following due process of law, would be violative of a human right, as also the constitutional right under Article 300A of the Constitution. The contention of the State that the Appellant or her predecessors had "orally" consented to the acquisition is completely baseless. In a democratic polity governed by the Rule of law, the State could not have deprived a citizen of their property without the sanction of law.

Further, the State being a welfare State, cannot be permitted to take the plea of adverse possession, which allows a trespasser i.e. a person guilty of a tort, or even a crime, to gain legal title over such property for over 12 years. The State cannot be permitted to perfect its title over the land by invoking the doctrine of adverse possession to grab the property of its own citizens, as has been done in the present case.

The contention advanced by the State of delay and laches of the Appellant in moving the Court is also liable to be rejected. Delay and laches cannot be raised in a case of a continuing cause of action, or if the circumstances shock the judicial conscience of the Court. Condonation of delay is a matter of judicial discretion, which must be exercised judiciously and reasonably in the facts and circumstances of a case. It will depend upon the breach of fundamental rights, and the remedy claimed, and when and how the delay arose. There is no period of limitation prescribed for the courts to exercise their constitutional jurisdiction to do substantial justice. In a case where the demand for justice is so compelling, a constitutional Court would exercise its jurisdiction with a view to promote justice, and not defeat it.

In the present case, the Appellant being an illiterate person, who is a widow coming from a rural area has been deprived of her private property by the State without resorting to the procedure prescribed by law. The Appellant has been divested of her right to property without being paid any compensation whatsoever for over half a century. The cause of action in the present case is a continuing one, since the Appellant was compulsorily expropriated of her property in 1967 without legal sanction or following due process of law.

The Respondent-State is directed to pay the compensation on the same terms as awarded by the Reference Court vide Order in Anakh Singh's case alongwith all statutory benefits including solatium, interest, etc. within a period of 8 weeks, treating it as a case of deemed acquisition. The Respondent-State is directed to pay legal costs and expenses of Rs. 10,00,000 to the present Appellant. The Appeals are accordingly allowed.

Tags : Compensation Right Entitlement

Share :

Top

Supreme Court

Indian Bank and Ors. Vs. Promila and Ors.

MANU/SC/0014/2020

08.01.2020

Service

It is not for the Courts to substitute a Scheme or add or subtract from the terms thereof in judicial review

In facts of present case, Jagdish Raj, husband of Respondent No. 1 and father of Respondent No. 2, was appointed as a Clerk-cum-Shroff in the Appellant-Bank, where he continued to work till his unfortunate demise.

Late Jagdish Raj was survived by his wife and three minor children. As it transpires, Respondent No. 1 was already employed and earning a salary at the time of the demise of her husband, which information came to the knowledge of the Appellant-Bank, later. The cause for the present dispute arises from an application made on behalf of the son (Respondent No. 2) seeking compassionate employment on account of demise of Shri Jagdish Raj.

It is trite to emphasise, based on numerous judicial pronouncements of this Court, that compassionate appointment is not an alternative to the normal course of appointment, and that there is no inherent right to seek compassionate appointment. The objective is only to provide solace and succour to the family in difficult times and, thus, the relevancy is at that stage of time, when the employee passes away. An aspect examined by judgment of Supreme Court in Canara Bank and Anr. v. M. Mahesh Kumar is as to whether a claim for compassionate employment under a scheme of a particular year could be decided based on a subsequent scheme that came into force much after the claim. The answer to this has been emphatically in the negative. It has also been observed that the grant of family pension and payment of terminal benefits cannot be treated as a substitute for providing employment assistance. The crucial aspect is to turn to the scheme itself to consider as to what are the provisions made in the scheme for such compassionate appointment.

The question of applicability of any subsequent Scheme really does not apply in view of the judgment of this Court in Canara Bank and Anr. v. M. Mahesh Kumar. Thus, it would not be appropriate to examine the case of the Respondents in the context of subsequent Schemes, but only in the context of the Scheme of 4th April, 1979, the terms of which continued to be applicable even as per the new Scheme of 5th November, 1985, i.e. the Scheme applicable to the Respondents. There is no provision in this Scheme for any ex gratia payment. The option of compassionate appointment was available only if the full amount of gratuity was not taken, something which was done. Thus, having taken the full amount of gratuity, the option of compassionate appointment really was not available to the Respondents.

Thus, looked under any Schemes, the Respondents cannot claim benefit, though, it is only the relevant Scheme prevalent on the date of demise of the employee, which could have been considered to be applicable. It is not for the Courts to substitute a Scheme or add or subtract from the terms thereof in judicial review, as has been recently emphasized by this Court in State of Himachal Pradesh and Anr. v. Parkash Chand.

The sympathy alone cannot give remedy to the Respondents, more so when the relevant benefits available to the Respondents have been granted by the Appellant-Bank and when Respondent No. 1, herself, was in employment having monthly income above the benchmark. The appeal is accordingly allowed.

Relevant

Canara Bank and Ors. v. M. Mahesh Kumar and Ors. MANU/SC/0634/2015
, State of Himachal Pradesh and Anr. v. Parkash Chand MANU/SC/0076/2019

Tags : Compassionate employment Benefit Eligibility

Share :

Top

Supreme Court

Canara Bank and Ors. Vs. Kameshwar Singh

MANU/SC/0017/2020

08.01.2020

Service

General Manager being an authority higher to Disciplinary Authority can exercise power of Disciplinary Authority to impose penalty

Canara Bank and its functionaries have filed present appeals challenging the judgment of the Division Bench of the High Court, whereby the order of punishment passed against the Respondent by the Appellate Authority, namely, the General Manager of the Bank, was quashed and the matter was remitted to the Disciplinary Authority, namely, the Deputy General Manager to proceed with the inquiry from the stage of receipt of the inquiry report and to conclude the proceedings in accordance with law.

The Division Bench has interfered with the order of the learned Single Judge on the ground that the General Manager being an authority higher to Disciplinary Authority cannot exercise the power of the Disciplinary Authority. Therefore, the Division Bench quashed the order of punishment and remitted the matter to the Disciplinary Authority, namely, the Deputy General Manager for fresh consideration in accordance with law.

It is clear from the Regulation 5(3) of the Discipline and Appeal Regulations, 1976, the Disciplinary Authority or any other authority higher than it, may impose any penalties specified in Regulation 4 on any officer employee. In the instant case, the departmental proceedings against the Respondent were initiated by the Deputy General Manager being the Disciplinary Authority. But the order of punishment has been passed by the General Manager, who was higher than the Disciplinary Authority. Having regard to Regulation 5(3), the Division Bench was not justified in holding that, General manager has no authority to pass the order of punishment.

The order of the Division Bench impugned herein is set aside and the order of the learned Single Judge remitting the matter to the authorised Appellate Authority for reconsideration of the appeal is restored. The appeals are accordingly allowed.

Tags : Punishment Imposition Authority

Share :

Top

High Court of Bombay

Vivek Vs. Vishwam Power & Buildcon Pvt. and Ors.

MANU/MH/0020/2020

07.01.2020

Criminal

High Court can invoke its powers under Section 482 of CrPC, if non-application of mind is revealed and no offence is made out

Present petition has been filed by original accused, challenging the order of issuance of process against him for the offence punishable under Section 406 and 420 of Indian Penal Code, 1860 (IPC) by learned Judicial Magistrate First Class, which was confirmed in Criminal Revision Application by learned Additional Sessions Judge. It has been submitted on behalf of Petitioner that, both the Courts below have not considered the contents of the complaint and the ingredients of the offences under which process has been issued.

The contents of complaint do not spell that there was element of cheating on the part of accused and it could be noticed since beginning. If there was such element, then accused might not have given payment to complainant as per contract. Complainant has not intentionally stated as to how much amount was given by the accused. In fact, no particulars have been given as to when complainant had asked accused to give further work order, material, remaining amount of the work already done etc. At any early point of time, complainant had not suspected an element of cheating or criminal breach of trust. On the contrary, the complainant has done that work also which was not as per work order. It could have been refused by it. The matter relates to civil dispute.

Section 405 of IPC prescribes, "whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust".

The contents of the complaint in this case do not show any entrustment by the complainant to the accused. It is tried to be contended that the cheque which was given by the complainant as security has not been returned by the accused. However, there is no averment in the complaint that the said cheque has been converted by accused to his use or it has been used by accused with dishonest intention or it has been disposed of in violation of any direction of law prescribing the mode in which such trust is to be discharged.

Further as regards ingredients of Section 415 of IPC are concerned, it should show-"(i) Deception of any persons; ii) Fraudulently or dishonestly inducing any person to deliver any property; or (iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit." Both the Courts below have failed to consider that all the ingredients of the offences have not been even made prima facie for issuing process. It would be an abuse of process of law to continue the prosecution against accused with such material.

In the case of Mehmood UL Rehman vs. Khazir Mohammad Tunda, the Supreme Court held that no reasoned, formal or speaking order is required. However, it should reflect the application of mind. The Magistrate must be satisfied that, there is a material to issue process and if the complaint on the face of it does not disclose commission of the offence, then the Magistrate should refrain himself from taking cognizance. It has been clarified in that case by the Hon'ble Supreme Court that if non-application of mind is revealed and no offence is made out, then the High Court can invoke its powers under Section 482 of the Code of Criminal Procedure, 1973 (CrPC) in order to prevent abuse of the power of the Criminal Court. The process of the criminal court shall not be made a weapon of harassment.

When both the Courts failed to consider the facts narrated and the ingredients of the offences and the order is passed without application of mind; case is made out for the exercise of inherent powers of this Court under Section 482 of the CrPC for quashing the proceedings as well as the order of issuing process passed against the accused. Writ Petition thus, stands allowed.

Relevant

Mehmood UL Rehman vs. Khazir Mohammad Tunda, MANU/SC/0374/2015

Tags : Proceedings Issuance Legality

Share :

Top

Supreme Court

Surinder Kumar Vs. State of Punjab

MANU/SC/0001/2020

06.01.2020

Narcotics

Evidence of official witnesses cannot be distrusted and disbelieved, merely on account of their official status

Present Criminal Appeal is filed by the sole Accused, aggrieved by the judgment passed in Criminal Appeal by the High Court. The Appellant herein was convicted for the offence punishable Under Section 18 of Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act, 1985'), vide the judgment passed by the Special Judge for offence under Section 18 of NDPS, 1985 and was sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 1,00,000 in default of payment of the same, to undergo rigorous imprisonment for another period of one year.

The Trial Court as well as the High Court, has recorded a finding that the perusal of the record reveals the ASP was summoned number of times but either service was not effected or as and when he was served, he sent a request for exemption from personal attendance stating valid reasons. Further, it appears that the High Court has issued directions to the Trial Court to decide the case. As ASP was not examined by 30th April, 1999, a request for an extension was sought by the Special Judge, and it was adjourned to 17th May, 1999. Even by 17th May, 1999, the ASP could not be served as he was on leave. In view of reasoning assigned by the Trial Court, as well as the High Court, merely because ASP was not examined, it cannot be said that prosecution has failed to prove its case.

It is clear from the evidence on record that he was summoned at the time of search and seizure and only in his presence, search was conducted, as such, there is no violation of Section 50 of the NDPS Act. Further, it is contended by the Appellant that no independent witness was examined, despite the fact they were available. In this regard, it is to be noticed from the depositions of Head Constable (PW-1), during the course of cross-examination, has stated that efforts were made to join independent witnesses, but none were available. The mere fact that the case of the prosecution is based on the evidence of official witnesses, does not mean that same should not be believed.

The judgment in the case of Jarnail Singh v. State of Punjab, relied on by the counsel for the Respondent-State also supports the case of the prosecution. In the aforesaid judgment, present Court has held that, merely because prosecution did not examine any independent witness, would not necessarily lead to conclusion that Accused was falsely implicated. The evidence of official witnesses cannot be distrusted and disbelieved, merely on account of their official status.

From the evidence on record in present case, the prosecution has proved the guilt of the Appellant beyond reasonable doubt. The conviction recorded and the sentence imposed is in conformity with the provisions of law and evidence on record, thus no interference is called for. Accordingly, this appeal is devoid of merits, and the same is dismissed.

Relevant

Jarnail Singh v. State of Punjab MANU/SC/0480/2011

Tags : Conviction Evidence Credibility

Share :

Top

Customs, Excise and Service Tax Appellate Tribunal

Himadri Speciality Chemicals and Industries Limited Vs. Principal Commissioner of Service Tax-I, Kolkata

MANU/CK/0002/2020

02.01.2020

Service Tax

Duty demand consequent to denial of credit cannot be raised from an Input Service Distributor

The facts of the case in brief are that, the Appellant is engaged in the business of manufacture of coal tar products at various manufacturing units. The Registered Office of Appellant is registered with Service Tax department for payment of service tax under Reverse Charge Mechanism on various input services and also as an Input Service Distributor ('ISD') for distribution of input service credit to its various manufacturing units. The Appellant has not rendered any output service and therefore not liable to pay output service tax. The Appellant is only liable to pay service tax under Reverse Charge Mechanism (RCM) of which credit is availed for payment of output central excise duty on final products. The present proceeding has been initiated for demand of service tax pertaining to their Registered Office in Kolkata.

In the instant case, the issue that is to be decided is with regard to eligibility to avail Cenvat Credit in hands of Appellant on services rendered by Axis Bank and whether recovery can be made of the alleged wrong credit.

The learned Commissioner in para 4.2.1 of impugned order, while referring to letter dated 19th August, 2010 issued by Axis Bank, has observed that no amount of service tax has been paid by Appellant for which credit has been availed. Vide said letter, the Bank has accepted the request of assessee for cancellation of loan facility. However, there is no mention that service tax amount has been refunded back to appellant. In fact, it is specifically stated that, the arrangement fee collected by the Bank would not be refunded but may be adjusted when other loan facility is made available to Appellant in future. Therefore, the observation made by the learned Commissioner for denial of credit that, service tax amount has not been paid by Appellant is purely on assumption basis.

Moreover, the fact that processing for loan financing has been done by the Bank is not in dispute. Therefore, the Bank has rendered the service of loan processing which has been duly received by the Appellant. Had there been no rendition of service, the question of service tax levy would not have arisen.

Further, the Tribunal in case of Mahindra and Mahindra v. Commissioner of Service Tax has duly noted the contents of letter dated 10th March, 2014 issued by the CBEC wherein it has been accepted by the Board that there is no legal provision in Rule 14 of the Cenvat Credit Rules, 2004 to recover credit from an ISD as the said provisions stipulate recovery only from the manufacturer and the service provider. Therefore, the issue is no longer res Integra as the various co-ordinate Bench of the Tribunal as relied by the Appellant has duly held that, duty demand consequent to denial of credit cannot be raised from an ISD. In view of ratio of the decisions settling the issue, the impugned demand of Rs. 40,17,000 on the Appellant which is an ISD cannot be legally sustained and hence, the same is set aside.

On the other issue with regard to demand of service tax on RCM, since the appellant has chosen not to contest the issue, the demand of Rs. 63,207 is upheld. Penalty imposed under Section 77 of Finance Act, 1994 is however set aside by extending the benefit of Section 80 of the Act. The appeal is partly allowed.

Tags : Demand Penalty Legality

Share :