Supreme Court

Mohd. Inam vs Sanjay Kumar Singhal

MANU/SC/0497/2020

26.06.2020

Tenancy

In the guise of exercising jurisdiction under Article 227 of the Constitution, High Court cannot convert itself into a court of appeal

Present appeal challenges the judgment passed by the learned single judge of the High Court thereby, allowing the writ petition filed by Respondent Nos. 1 and 2 – landlords herein. The father of the present Appellant, was the original tenant of “the suit premises” since 1965. The Respondents had purchased the suit premises from the original landlord in the year 1998 and, as such, became the tenant’s landlord from 1998. The Respondents – landlord moved an application before the Rent Controller and Eviction Officer, contending therein, that father of the present Appellant had sublet the property to some other persons who were not the family members of the tenant. As such, they prayed for declaration of vacancy under the provisions of Section 16(1)(b) of UP Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (UP Act, 1972).

On the application of the landlord, a Rent Control Inspector was appointed to inspect the suit premises. The Rent Control Inspector visited the suit premises and submitted his report. The report stated that, there were several persons residing in the premises and they comprised of four separate families.

The original tenant filed objections to the inspection report. He, therefore, resisted declaring the suit premises as vacant. During the pendency of the proceedings, Rashid Ahmed (Original tenant) died leaving behind his son, the present Appellant, as his legal heir. As such, the name of Rashid Ahmed came to be substituted with that of the present Appellant.

The Rent Control and Eviction Officer came to the conclusion that, the persons, who were presently residing in the premises had not produced any evidence to prove, that they were living as tenants since 1965 along with late Rashid Ahmed. As such, he came to the conclusion, that the tenants had allowed persons to reside in the premises, who are not members of the family and, as such, declared the suit premises as vacant vide order.

The Rent Controller and Eviction Officer passed a final order under Section 16 of the UP Act, 1972 thereby, declaring the suit premises ‘vacant’ in favour of the respondents – landlord. Being aggrieved thereby, the appellant and said Shabbir Ahmed filed a revision. The learned District Judge, allowed the revision thereby, setting aside the order of vacancy. Being aggrieved thereby, the respondents No.1 and 2 – landlord filed a writ petition before the High Court. The said writ petition is allowed by the impugned order.

A perusal of the inspection report clearly established, that the original tenant was residing in the tenanted premises along with his son, brother’s son and their families. As such, the inspection report clearly established, that no person who was not a member of the tenant’s family was allowed to occupy the premises in his own right. As such, the finding of the Rent Controller and Eviction Officer that the landlord had proved the case under clause (b) of sub¬section (1) of Section 12 of the UP Act, 1972 was totally contrary to the law as interpreted by this Court in the case of Harish Tandon vs. Additional District Magistrate. Not only that, the finding as recorded by the said authority was totally on misreading or ignorance of the evidence on the record. It could thus be seen, that the case would squarely fall in the category of exercising the jurisdiction either illegally or with material irregularity. In that view of the matter, the learned District Judge was wholly justified in interfering with the order impugned before him and reversing the same.

It is a well settled principle of law, that in the guise of exercising jurisdiction under Article 227 of the Constitution of India, the High Court cannot convert itself into a court of appeal. It is equally well settled, that the supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and seeing that they obey the law. It has been held, that though the powers under Article 227 of the Constitution of India are wide, they must be exercised sparingly and only to keep subordinate courts and Tribunals within the bounds of their authority and not to correct mere errors.

In the present case, the approach of the High Court in exercising the jurisdiction under Article 227 of the Constitution of India was totally erroneous. The order of the High Court is quashed and set aside. Appeal allowed.

Tags : Suit premises Eviction Jurisdiction

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Supreme Court

Rajasthan State Warehousing Corporation Vs. Star Agri warehousing and Collateral Management Limited and Ors.

MANU/SC/0496/2020

24.06.2020

Contract

Before entertaining a writ petition and passing any interim orders, Court must carefully weigh conflicting public interests

The present appeals are directed against the interim order passed by the High Court whereby in an intra-court appeal, the High Court passed an order of status quo with a further direction that other formalities may proceed but the contract shall not be signed with the leave of the Court. The Rajasthan State Warehousing Corporation Ltd. is in appeal aggrieved against the said interim order.

There is no merit in the argument that the Special Leave Petitions are directed against an interim order, therefore, this Court should not interfere in the order passed. Though present Court does not generally interfere in an interim order passed in an appeal Under Article 136 of the Constitution, 1950 but when after the dismissal of the writ petition, the Division Bench has passed an order of stay without recording any reason affecting revenue of the State, this Court cannot not permit the public interest to suffer.

The question of grant of interim stay in contractual matters was examined by this Court in a judgment reported as Raunaq International Ltd. v. I.V.R. Construction Ltd. and Ors., The Court held that, before entertaining a writ petition and passing any interim orders in such petitions, the court must carefully weigh conflicting public interests. Only when it comes to a conclusion that there is an overwhelming public interest in entertaining the petition, the court should intervene.

Since the matters are pending for final determination before the High Court, present Court refrains from making any comment upon the merits of the arguments raised by the parties. The fact remains that, once the bidding process is complete, the Appellant is entitled to take work from the successful bidders rather than taking work from the short-term tenderers who were granted contract in exigency of the situation. In the matters of contract, the grant of interim order to restrain the successful bidders from executing the contract is not in public interest, more so, when the tender is for storage of food articles in the warehouses of the State Government undertaking.

Therefore, the grant of interim order which impinges upon the grant of contract by the Appellant is not in public interest that too without recording any reasons when the Writ Petition was dismissed by the Learned Single Judge. Consequently, the orders granting status quo is set aside while allowing the present appeals. However, the grant of contract shall be subject to the orders which may be passed by the High Court in the intra-court appeals pending before it.

Relevant

Raunaq International Ltd. v. I.V.R. Construction Ltd. and Ors. MANU/SC/0770/1998

Tags : Public interest Interim order Legality

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Income Tax Appellate Tribunal

Divya Creations vs. The ACIT

MANU/ID/0501/2020

24.06.2020

Direct Taxation

Assessee is not required to deduct tax at source on payments of foreign agency commission

Present appeal by Assessee has been directed against the Order of the Learned CIT(A), for the Assessment year (AY) 2014-2015, challenging the addition of Rs.13,67,739. The AO on perusal of Schedule-18 of Selling Expenses noticed that, assessee had debited expenses in the name of commission to non-resident other than a company or a foreign company amounting to Rs.13,67,739. The AO noted that similar disallowance were made under Section 40(a)(i) of the Income Tax Act, 1961 (IT Act) and considering the fact that the expenses made in foreign agency commission are of the same nature as last year and no TDS has been deducted by the assessee, therefore, the amount in question was disallowed under Section 40(a)(i) of the IT Act. CIT(A) dismissed the appeal of assessee.

Learned Counsel for the Assessee, at the outset submitted that, in AY 2010-2011, similar issue was considered by ITAT, in the case of assessee and disallowance have been deleted. The Tribunal held that, “where assessee-firm made payments of commission to those agents, since those agents had their offices situated abroad and, moreover, services were also rendered by them outside India, assessee was not required to deduct tax at source while making payments in question.”

It is not in dispute that, the issue is same as have already been considered in earlier year by the Tribunal. The parties are also same. The Tribunal examined the issue in the light of agreement and material on record and found that, the agent had their base situated in Abroad and moreover services were also rendered by them outside. Therefore, assessee is not required to deduct tax at source while making payments in question. The AO in the assessment order has also made disallowance since in earlier year also of the same issue and no TDS have been deducted. Therefore, the facts being identical, no disallowance is required in the matter. Therefore, in view of the Order of the Tribunal in the case of assessee for the AY 2010-2011, the Orders of the authorities below is set aside and the addition are deleted. Appeal of Assessee allowed.

Tags : Expenses Foreign agency commission Addition

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High Court of Kerala

N.R. Sajila Vs. Sree Sankaracharya University of Sanskrit and Ors.

MANU/KE/1565/2020

23.06.2020

Service

Courts should not interfere with a transfer order made in public interest unless the same is in violation of any mandatory statutory rule

The Petitioner is aggrieved by her transfer from the Thrissur Regional Centre to Tirur Campus of the first Respondent. The Petitioner challenges Exhibits P5 and P7, on the grounds that, the transfer is not supported by any administrative reasons and that the orders are utterly malafide and abuse of exercise of power violating the Petitioner's fundamental rights guaranteed under Articles 14, 16, 21 and 335 of the Constitution of India, 1950.

The Petitioner has a further grievance that there are number of employees who are continuing in Thrissur Campus for the last many years, some of them for more than 20 years, but none of them have been touched. The Petitioner being a member of a scheduled caste community, who has entered into an inter-caste marriage, has been discriminated on irrelevant considerations. Therefore, Exhibits P5 and P7, to the extent it transfers the Petitioner from Thrissur to Tirur, may be quashed.

The sole question that arises for consideration in present writ petition is whether Exhibits P5 and P7 orders, transferring the Petitioner from the Thrissur Regional Centre to the Tirur Campus of the 1st Respondent, are legal and justifiable.

The scope of judicial review, in matters relating to transfer and posting of employees under Article 226 of the Constitution of India, is well settled in a host of judicial pronouncements by the Hon'ble Supreme Court. In Shilpi Bose and Others v. State of Bihar and Others, the Hon'ble Supreme Court that, the Courts should not interfere with a transfer order which are made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to other.

Again, in Somesh Tiwari v. Union of India and Others, the Hon'ble Supreme Court observed that, indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where malafide on the part of the authority is proved.

On a reading of Exhibits P-1 to P-3 complaints submitted by the Petitioner in October to December 2019, it is evident that they substantially pertain to the obstacles faced by the Petitioner and the insubordination of some Faculty members, and the posting of the third Respondent as Director. Other than for the said unsubstantiated allegations, there is no material to prove that the transfer was a result of mala fide action. Therefore, there is no malafides in the transfer of the Petitioner, as alleged.

Orders passed against the Petitioner are not vitiated by malafides, but are passed to meet administrative exigencies and are an incident of service, and is therefore legal. There is no ground warranting interference by this Court, in the exercise of its powers under Article 226 of the Constitution of India, in the transfer of the petitioner as per Exhibits P-5 and P-7 orders. Resultantly, this writ petition is dismissed.

Relevant

Shilpi Bose and Ors. vs. State of Bihar and Ors. MANU/SC/0147/1991
; Somesh Tiwari vs. Union of India (UOI) and Ors. MANU/SC/8494/2008

Tags : Transfer orders Judicial review Scope

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High Court of Delhi

Jitendra Singh and Ors. Vs. Securitrans India Pvt. Ltd.

MANU/DE/1286/2020

22.06.2020

Service

Matters which come purely under the realm of a contract between two parties are not amenable to writ jurisdiction

The Appellants/Petitioners are aggrieved by the judgment passed by the learned Single Judge dismissing a writ petition filed by them praying for issuance of a writ/direction to the Respondent/company, where they were employed, not to terminate their services and further, to release all arrears of wages. By the impugned order, the learned Single Judge has dismissed the writ petition filed by the Appellants/Petitioners on the ground that, the same does not lie under Article 226 of the Constitution of India, 1950. The learned Single Judge has held that, the Respondent/Company is a private company and is not a State or any other Authority and nor is it funded by the Government.

The claim of the Appellants/Petitioners that termination of their services during the COVID-19 period is illegal, has been rejected by the learned Single Judge by holding that, termination of the services of the Appellants/Petitioners is for the reasons other than COVID-19, i.e., for their alleged misconduct on account of misappropriation of currency handed over to them by the respondent/company as custodians, for topping up in ATM branches of different banks. Learned counsel for the Appellants/Petitioners states that, the learned Single Judge fell into an error by observing that, the Respondent/company is not a State and nor is it discharging duties of the State as it undertakes the work of distributing currency in different AT M branches operated by banks and the same ought to be treated as a public duty.

The test for determining as to whether an Authority is an instrumentality of the State or not is no longer res-integra. The Supreme Court in Ramana Dayaram Shetty v. International Airport Authority of India, has laid down the parameters or guidelines for determining whether a body falls within the sweep of the definition of "other Authorities", as contemplated in Article 12 of the Constitution of India. Applying the tests, it cannot be said that, the Respondent/company herein would by any stretch of imagination be treated as an Authority or an instrumentality of State within the definition of Article 12 of the Constitution of India.

Present Court concurs with the finding of the learned Single Judge that, the Respondent/company is not performing any public function and therefore, a writ petition under Article 226 of the Constitution of India is not maintainable against it. It is well settled that matters which come purely under the realm of a contract between two parties are not amenable to writ jurisdiction. In Binny Ltd. & Anr. v. V. Sadasivan & Ors., while dealing with a writ petition which arose from a contract between an employer and an employee, the Supreme Court has laid down the guidelines as to what should be termed as a public function.

In the instant case, services of the Appellants/Petitioners have been terminated by the Respondent/Company. The contention of the counsel for the Appellants/Petitioners that the Respondent/Company herein is discharging a public function, cannot be accepted. The Respondent/Company has entered into contracts with different banks to collect currency from them and top up the AT M branches being run by them, which activity cannot be described as a public function in the light of the test laid down by the Supreme Court. Thus, the Respondent/company is neither an instrumentality of the State nor is it carrying out any public function for this Court to entertain the present petition.

Present Court is also in complete agreement with the findings returned by the learned Single Judge that the termination having already come into effect, there cannot be any stay thereof as prayed for by the appellants/petitioners in the writ petition. Disputed questions of facts as raised in the present case, cannot be gone into in proceedings under Article 226 of the Constitution of India. There is no reason to interfere with the impugned judgment. The appeal is dismissed.

Relevant

Binny Ltd. & Anr. v. V. Sadasivan & Ors., MANU/SC/0470/2005
, Ramana Dayaram Shetty v. International Airport Authority of India, MANU/SC/0048/1979

Tags : Alleged misconduct Termination Legality

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High Court of Himachal Pradesh

Ranjit Singh Vs. State of H.P.

MANU/HP/0511/2020

22.06.2020

Criminal

Person charged for higher offence can be punished for lower offence

The instant appeal has been preferred by the Accused-Appellant against the judgment passed by learned Additional Sessions Judge under Sections 451, 323, 325, 307 read with Section 34 of the Indian Penal Code, 1860 (IPC), wherein Appellant-accused has been convicted under Sections 451, 325 & 307 of IPC, whereas co-Accused have been acquitted. The question involved in present case is whether conviction of Accused-Appellant was sustainable.

It is true that, medical evidence as well as chemical analysis report are corroborative pieces of evidence and conviction can be maintained even in absence of such evidences, if oral depositions of the complainant and other witnesses are found to be reliable, trustworthy, credible, to establish commission of offence beyond reasonable doubt. Even conviction can be on the basis of sole testimony of injured or eye witnesses depending upon quality thereof.

Essential ingredient to convict an accused under Section 307 of IPC is that he should have done the act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder. No reason for intention to cause death has been brought on record. The evidence is also lacking about the knowledge of accused that act, committed by him would have caused death of victim.

In any case, it has been proved on record, beyond reasonable doubt, that accused had caused grievous injuries to the victim voluntarily by using stone as a weapon of offence, which can be used for causing death also and, therefore, essential ingredients for convicting the accused under Section 326 of IPC are available on record. It is a settled law that person charged for higher offence can be punished for lower offence. Therefore, conviction under Section 307 of IPC is converted into conviction under Section 326 of IPC.

Accused was convicted under Section 307 of IPC and sentenced to undergo simple imprisonment for a period of 7 years and pay fine of Rs.10,000 and in default of payment thereof to further undergo simple imprisonment for a period of six month. Now, conviction of accused under Section 307 of IPC is converted into conviction under Section 326 of IPC. Appeal disposed off.

Tags : Conviction Sentence Legality

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