Supreme Court

Nidhi v. Ram Kripal Sharma (D) thr. L.Rs.

MANU/SC/0133/2017

07.02.2017

Tenancy

Court has to consider effect of subsequent development on bona fide need of landlord

Instant appeal by way of special leave is preferred against order passed by High Court wherein High Court affirmed order passed by Additional District Judge, Moradabad, thereby setting aside release order passed by Prescribed Authority. The point falling for consideration is whether marriage of Appellant/landlady as subsequent event can extinguish bona fide requirement of a landlady and disentitle her for relief sought in release application filed prior to her marriage. Appellant is owner and landlord of premises in question, which is a non-residential accommodation. Appellant alleged that she is in need of premises as Appellant wants to accommodate her grandparents in demised house who live in village and are in need of care and medical treatment. Moreover, Appellant alleged that she and her younger sister required separate room for study. It was further alleged by the Appellant that the Respondent's main business is that of a sweet shop and he has sufficient means to take some other place on rent to run his hotel business.

Landlord of rented property is entitled to the vacant possession of his rented premises in event of his bona fide requirement of said premises for his own residential or professional requirements or for any person related to him. In facts of present case, change in subsequent events is not such that would deprive Appellant of her right to vacant possession of suit premises as it is a natural event that, daughter of house would get married and settle with her husband. Though Appellant has got married and shifted to different accommodation with her husband, actual bona fide requirement of premises is still the same, since her parents and grandparents are still residing separately from each other with no one to look after them. Appellant got married but family stays where it is and bona fide requirement of premises for accommodation of parents remains the same. Being married and shifting to other place does not automatically result in extinguishing of bona fide requirement of Appellant as being the owner of property, she alone is to decide what she wants to do with her property.

Legislations made for dealing with such landlord-tenant disputes were pro-tenant as court tends to bend towards tenant in order to do justice with the tenant; but in process of doing justice, Court cannot be over zealous and forget its duty towards the landlord also as ultimately, it is landlord who owns the property and is entitled to possession of the same when he proves his bona fide beyond reasonable doubt as it is in the case before this Court. Ordinarily, rights of parties stand crystallised on date of institution of the suit. However, court has power to take note of subsequent events and mould the relief accordingly.

Though Court has the power to take note of subsequent events, court has to consider effect of subsequent development on bona fide need of landlord. For purpose of coming to conclusion on bona fide need of landlord, comparative hardship to parties will have to be taken into consideration. In present case, Appellant got married during pendency of appeal and settled with her husband; still her requirement to accommodate her parents and grandparents continued. Appellant has established her bona fide requirement for accommodating her parents and grandparents in the suit premises merely because the Appellant got married amidst the proceedings does not extinguish her claim for the relief of possession of the suit premises. Subsequent event, namely, marriage of Appellant does not extinguish her requirement considering comparative hardship, it is to be pointed out that Respondents have another business of sweet shop and thus, is not going to suffer if ordered to vacate suit premises as they can shift place of business to some other place without suffering any loss of occupation, whereas parents of Appellant would be subjected to hardship as she has no other premises to accommodate her grandparents as well as her parents. While taking note of subsequent events, High Court has not considered comparative hardship to Appellant and erred in declining relief to Appellant.

Supreme Court allowed the appeal set aside impugned order of High Court and order passed by prescribed authority i.e. Court of Second Upper Civil Judge, restored.

Relevant

Om Prakash Gupta v. Ranbir B. Goyal: (2002) 2 SCC; MANU/SC/0035/2002

Tags : Eviction Bonafide need Entitlement

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Supreme Court

Vijay Kumar Ahluwalia and Ors. v. Bishan Chand Maheshwari and Ors.

MANU/SC/0129/2017

07.02.2017

Tenancy

While considering grant of leave to contest eviction proceedings under Rent Laws, Authority/Court is not expected to examine merits and demerits of grounds raised

Instant appeal is filed against final judgment and order passed by High Court of Delhi whereby the High Court dismissed revision filed by Appellants herein against judgment of Additional Rent Controller, Delhi by which leave to contest application filed by Appellants-tenant has been dismissed and eviction petition under Section 14(1)(e) of Delhi Rent Control Act, 1958 filed by Respondent No. 1 was decreed. Short question, which arises for consideration in this appeal, is whether Courts below were justified in rejecting the application filed by the Appellants under Section 25B(4) of the Act for grant of leave to contest the eviction proceedings filed by Respondent No. 1 against Appellants under Section 14 (e) of Act on merits.

Application filed by Appellants under Section 25B(4) of Act seeking leave to contest eviction application of Respondent No. 1 should have been allowed to enable Appellants (tenant) to contest the eviction application on its merits. In view of grounds raised by Appellants, Supreme Court opined that a prima facie case was made out entitling the Appellants to contest the application of Respondent No. 1 on merits. Grounds raised by the Appellants, if accepted, could result in dismissal of Respondent No. 1's eviction application thereby disentitling him to claim Appellants' eviction from the suit shop.

Ground relating to proof of ownership of Respondent No. 1 over suit shop, which was based on the alleged adoption deed set up by him, for the first time, after 17 years coupled with the ground in relation to devolution of tenancy between the parties after death of Smt. Ram Piari and lastly, the ground relating to bona fide need and availability of the alternative accommodation did disclose prima facie facts within the meaning of Sub-sections 4 and 5 of Section 25B of the Act to contest the eviction application of Respondent No. 1 on merits.

Appellants had not attorned to Respondent No. 1 as owner of the suit shop and, in turn, his status as landlord. There was no evidence to prove existence of relationship of landlord and tenant between the parties. Specific averments were made by the Appellants to show availability of alternative accommodation to satisfy the need of Respondent No. 1, if it really existed. Grounds, were sufficient for granting leave to Appellants to contest eviction application of Respondent No. 1 on merits.

It is a settled principle of law that while considering grant of leave to contest eviction proceedings under Rent Laws, the Authority/Court is not expected to examine merits and demerits of grounds raised in application for grant of leave to contest and if Authority/Court finds that, grounds raised prima facie disclose a defence which, if accepted, may result in non-suiting the landlord from claiming eviction, tenant is entitled to obtain leave to contest the eviction proceedings on merits. In this case, Appellants-tenant have made out such grounds and are, therefore, entitled for grant of leave to contest eviction proceedings filed by Respondent No. 1 against them on merits. Impugned judgment and order passed by Additional Rent Controlling Authority are set aside. Appellants-tenant are granted leave to contest the application filed by Respondent No. 1 under Section 14 of Act on merits.

Relevant

Section 25B(5)of Delhi Rent Control Act, 1958

Tags : Application Contest Leave

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High Court of Bombay

Shri Mahadeo Naik v. Maharashtra State Road Transport Corporation

MANU/MH/0126/2017

07.02.2017

Service

Inquiring officer and disciplinary authority are different; proceedings must be held in two separate stages

Since, 19 April 1988, Petitioner had been working as a bus driver with Respondent. On 10 May 1996, State Transport bus driven by Petitioner collided with a truck coming in the opposite direction, resulting into death of 2 passengers and injuries to several others Respondent issued a chargesheet against Petitioner, levelling charges of misconduct. Inquiry Officer found Petitioner to be guilty of gross negligence in driving and held his misconduct of indiscipline, severe damage and inconvenience to Corporation and public, breach of departmental circulars/directives and rash driving to be proved. Respondent thereafter issued a show cause notice. Being aggrieved by dismissal, Petitioner raised an industrial dispute. By its preliminary awards, Labour Court held the inquiry to be fair and proper and findings not to be perverse. After hearing parties on quantum of punishment, Court passed its final award, rejecting reference, finding the punishment to be proportionate.

There is no inherent infirmity in having disciplinary authority inquire into misconduct of a charge-sheeted employee. Decided cases lays down that where two authorities, namely, inquiring officer and disciplinary authority, are different, proceedings must be held in two separate stages, charge-sheeted employee having an opportunity to show cause separately both in enquiry and for punishment proposed on basis of inquiry. Under the discipline and appeal regulations framed by Respondent Corporation, as a general rule, Appointing Authority, or any Authority higher than it, is competent to initiate departmental proceedings and to hold enquiry against employee concerned and to award punishment ¬ (Clause 18). Without prejudice to competence of Appointing Authority or to inherent powers of any higher authority officers mentioned in Schedule 'C' of the regulations were appointed to be the competent authority to deal with acts of misconduct of different classes of employees and to inflict punishments as if they were the competent authority under Clause 18(Clause 19). It is not in dispute that, Divisional Traffic Officer, who conducted the inquiry and decided the punishment, was a competent authority within the meaning of these clauses, and could, therefore, hold the inquiry and also inflict the punishment. There is, accordingly, no substance in Petitioner's contention that there was breach of principles of natural justice by reason of fact that the inquiring authority and the disciplining authority were the same.

Inquiry was held on four dates. There was a presenting officer who submitted his report after he was examined. His cross¬examination was conducted by the Union's representative who was conducting the defence of the workman, and who was chosen for the task by the workman himself. Workman's evidence was recorded by competent authority with help of Union's representative; the former's signature was obtained on it. After the inquiry, findings of the competent authority were supplied to the workman, before he was asked to show cause in the matter of punishment proposed. There is, in the premises, adequate compliance with the principles of natural justice. Merely because questions were asked to the workman by the enquiry officer, it cannot be said that natural justice was denied to him.

Labour Court, in its award held that, Petitioner had failed to prove that enquiry conducted by the Respondent was not fair or proper. As for conclusion of enquiry officer on charges levelled against the Petitioner, Labour Court, in its second preliminary award on issue of perversity, accepted management's case that the enquiry officer had derived his findings on the basis of thereport submitted by the reporter, panchnama and other relevant documents on record as also oral evidence led by the parties and held that the findings of the enquiry officer were based on evidence and there was no perversity in them. Based on material before court, namely, reporter's report, police panchnama, statements of witnesses, etc., it cannot be said that, conclusion drawn by Court is such as no reasonable man, duly instructed in law, could ever have arrived at.

Tags : Misconduct Dismissal Punishment

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Supreme Court

Manoranjana Sinh v. Central Bureau of Investigation

MANU/SC/0128/2017

06.02.2017

Criminal

Detention in custody of under-trial prisoners for an indefinite period would amount to violation of Article 21 of Constitution

Appellant, a charge-sheeted Accused in judicial custody in connection with the infamous "Chit Fund Scam" involving the Saradha Group of Companies ("Saradha Group") has impeached rejection of her prayer for bail by judgment and order impugned and seeks her release pending further investigation by tentral Bureau of Investigation (CBI) into said Ponzi scheme.

Recorded facts demonstrate admittedly that, Appellant is continuously in judicial custody since 7th October, 2015 and that supplementary charge-sheet against her along with others as mentioned therein, had been filed on 04th January, 2016 incorporating evidence collected against those incriminated. Having regard to the magnitude and canvass of the investigation, it is likely that exercise would take further time. Though according to the CBI, ailments of Appellant are not worth any weight as a factor to grant her the privilege of bail, the medical records nevertheless suggest that she is suffering from a variety of ailments. Noticeably, medical records have been issued by hospitals in which she is undertaking treatment. Though it is the plea of Respondent that, Appellant at times adopts a disposition to avoid interrogation by CBI, no convincing material has been brought on record to demonstrate any misuse of her liberty qua the investigation while in the hospitals since her arrest. As per medical records, her ailments range from ischemic heart disease to asthma, unstable angina, dysfunctional uterine bleeding, constant nausea and lower back pain.

This Court in Sanjay Chandra v. Central Bureau of Investigation, also involving an economic offence of formidable magnitude, while dealing with the issue of grant of bail, had observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an Accused person would stand his trial when called upon and that the courts owe more than verbal respect to the principle that punishment begins after conviction and that every man is deemed to be innocent until duly tried and found guilty. Since, jurisdiction to grant bail to an Accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the relevant considerations while examining the application of bail but it was not only the test or the factor and that grant or denial of such privilege, is regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under-trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted. In factual premise and on an in-depth balancing of all relevant aspects and chiefly competitive imperatives of investigation and right to liberty, Supreme Court disposed the petition, granting bail to Appellant, subject to conditions.

Relevant

Sanjay Chandra v. Central Bureau of Investigation  MANU/SC/1375/2011
: (2012) 1 SCC 40

Tags : Bail Rejection Validity

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Customs, Excise and Service Tax Appellate Tribunal

Amway India Enterprises Pvt. Ltd. v.  C.C.E., New Delhi

MANU/CE/0079/2017

06.02.2017

Service Tax

Suppression (intentional and deliberate) cannot exist when relevant fact forming basis of demand already within knowledge of department

Appellant is a wholly owned subsidiary of Amway Corporation, USA and is engaged in business of direct selling of products in different segments. Service Tax Department conducted audit of books of accounts in premises of Appellant. During course of audit, it was detected that, Appellant had not paid service tax on expenditure incurred in convertible foreign exchange on account of taxable services namely, "Intellectual Property Service' and 'Business Auxiliary Services' received from the associate company M/s. Amserve. Appellant agreed with audit objection and deposited Rs. 46,08,759/- and Rs. 1,60,68,000/- respectively. Further, audit team also observed that, Appellant had not paid service tax of Rs. 8,01,78,254/- under taxable category of 'Franchise Service' in respect of income earned by it during the period October' 2003 to March' 2007 under heads of accounts namely, 'Joining and Business Fee', 'Business Renewal Fee' and 'Back to Future Fee'. On basis of audit objection, Department issued Show Cause Notice. Service tax demand was confirmed along with interest under taxable category of 'Franchise Service' by invoking extended period of limitation under proviso to Section 73(1) of Finance Act, 1994. Besides, penalties were imposed. Feeling aggrieved with impugned order, Appellant has filed this appeal before the Tribunal.

Suppression (intentional and deliberate) can never be said to exist when material and relevant fact forming the basis of the demand were already within the knowledge of the department. Accordingly, the pre-conditions for applicability of the proviso to Section 73(1) of Act, cannot be said to be made and in such eventuality, the extended period of limitation cannot be invoked and the demand to be confined to the normal period of one year.

Consistent position of law with regard to applicability of the proviso to Section 73(1)/Section 11A  has been that suppression cannot be established where material facts were within the knowledge of the Revenue. Accordingly, where there is no suppression, the precondition for applicability of proviso to Section 73(1) cannot be said to be met and hence, extended period of limitation contemplated therein cannot be invoked. On contrary, where ingredients for invoking proviso to Section 73(1) are established or admitted and thus pre-conditions for applicability of such proviso stands satisfied, and only in such cases, period of 5 years is required to be computed from date when the evasion came to the knowledge of the Department. In case in hand, since modus operandi adopted by Appellant for selling its products were known to the Department and based on the information/documents furnished by the appellant in 2005, show cause proceedings were initiated by the Department on 12.03.2009, seeking confirmation of service tax demand under 'Franchise Service' for the period October' 2003 to March' 2007, Tribunal viewed that the proceedings are barred by limitation of time.

Section 67 lays down provisions dealing with valuation of taxable service. In this regard, 'gross amount charged' had been defined to include payments by cheque, credit cards, and other forms of payments by debit notes or credit notes. Definition of gross amount charged was amended w.e.f. 10th May, 2008 in order to provide that in case of transaction between 'associated enterprises', any amount debited or credited in the books of accounts of the person liable to pay service tax would also be included as 'gross amount charged'. Consequently, an amendment was also made to Rule 6 of the Service Tax Rules, 1994 whereby the explanation was inserted w.e.f. 10.05.2008, declaring that in case of transactions between associated enterprises, payment received for taxable service would include any amount debited or credited in the books of accounts liable to pay service tax.

Amount of Rs. 7,38,61,083/- and Rs. 23,24,00,000/-, reflected in books of accounts of Appellant as outstanding as on 10th May, 2008, were towards services received from abroad from the associated companies. Since on date of amendment of Section 67  and Rule 6, such amounts were reflected under outstanding receipts, Appellant is liable to pay service tax on such amount under reverse charge mechanism as per Section 66A . Therefore, service tax amounting to Rs. 46,08,759/- and Rs. 1,60,68,000/- paid by Appellant and appropriated in impugned order are in conformity with the service tax statute. Since, appellant had delayed in making such payment, interest amount thereon are required to be paid, since same is compensatory in character. Tribunal partly allowed the appeal and set aside impugned order to extent of confirmation of service tax demand of Rs. 8,01,68,254/- along with interest and imposition of penalties under 'Franchise Service'.

Tags : Demand Extended period Invocation

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High Court of Patna

Kishori Das and Ors. v. The State of Bihar and Ors.

MANU/BH/0033/2017

04.02.2017

Constitution

Report of Statutory Commission of experts cannot be interfered with for reason that there could be better way of identification of caste

Challenge in present petition is to Notification dated 22nd April, 2015, published in Extra-ordinary official Gazette by State Government on 28th April, 2015 whereby Teli (Hindu and Muslim) and Tamoli castes were deleted from Schedule-II of category of Other Backward Classes (for short, 'OBC') and included in Schedule-I of the Extremely Backward Classes (EBC) of Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1991 (for short, 'the Act'). Grievance of Petitioner is that by shifting Teli and Tamoli castes in the Schedule-I, which is the list of EBC, from Schedule-II, which is the list of Backward Classes, will affect their chances of appointment.

Criteria to be considered to determine as to whether a caste is socially backward as discussed in Indira Sawhney's case. In terms of direction of Supreme Court, State Commission for Backward Commission was constituted and such Commission has been empowered to take exercise for inclusion or exclusion of any caste from Schedule-I and Schedule II of the Act. Commission has sent questionnaire in respect of various factors, such as educational qualification, financial status, representation in services of State and Central Government services etc. and also delineated eight headings under which Commission considered and submitted its report. Commission is a statutory body and is exercising statutory function. Report of such statutory Commission of experts cannot be interfered with for the reason that there could be better way of identification of the caste. This Court in exercise of power of judicial review does not sit as a Court of appeal over findings recorded by experts more so when experts are exercising statutory function.

In Sajeesh Babu K. v. N.K. Santhosh, Court held that in a matter of appointment by an Experts consisting of qualified persons in particular field, normally, Courts should be slow to interfere with opinions expressed by experts, unless there is any allegation of mala fides against experts who had constituted the Selection Committee.

Thus, reports of the State Backward Classes Commissions, cannot be said to be based on no materials or unsupported by reasons or characterized as decisions arrived at on consideration of matters that are, in any way, extraneous and irrelevant. Report of Commission cannot be said to be an impossible or perverse view which would justify exclusion of report submitted. Mere possibility of a different opinion or view would not detract from binding nature of report submitted by Commission. In view of limited jurisdiction to interfere with findings of statutory Commission that Teli is a caste which should be included in Schedule-I out of Schedule-II, cannot be said to be warranting any interference as such was the jurisdiction conferred by the Statute on the Commission.

Relevant

Indra Sawhney vs. Union of India (UOI) and Ors. MANU/SC/0665/1992
, Sajeesh Babu K. v. N.K. Santhosh,  MANU/SC/0932/2012
: (2012) 12 SCC 106

Tags : Notification Caste List Deletion

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