October 2017 – advocatemmmohan

APEX COURT – LAND ACQUISITION – whether the land has a potential value or not is primarily one of fact depending upon its condition, situation, user to which it is put or is reasonably capable of being put and whether it has any proximity to residential, commercial or industrial areas or institutions. The existing amenities such as water, electricity, possibility of their further extension, whether near about town is developing or has prospect of development need to be taken into consideration.- we are of the considered opinion that just, fair and proper market value of the acquired land in question on the date of issuance of Section 4 notification is determined at Rs.45,00,000/- (Forty Five Lacs) per acre in place of Rs.33,00,000/- (Thirty Three Lacs) per acre for the lands described in detail in column 2 of the Award of the Collector dated 19.08.2010 (Annexure P-3) at page 32 of the SLP paper book of C.A.No. 2846/2017 and Rs.35,00,000/- (Thirty Five Lacs) per acre in place of Rs.24,75,000/- (Twenty Four Lacs Seventy Five Thousand) per acre for lands described in detail in 3 column 1 of the said Award. In other words, the appellants are held entitled to receive compensation for the acquired land as described hereunder: S. No. Class of Land Awarded Amount 1. Nehri, Chahi Rs.35 lacs 2. To the depth of 2 acres from Safidon-Jind Road & Safidon Bye Pass Road and Gair-mumkin land Rs.45 lacs – In addition to the aforesaid, the appellants are also held entitled to statutory compensation as provided in the Act and which the Courts below had already awarded to the appellants. We uphold the Award of such compensation. The two rates which we have determined above would apply to entire acquired land of all the appellants.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No.2846 OF 2017 Bijender & Ors. ….Appellant(s) VERSUS State of Haryana & Anr. …Respondent(s) WITH CIVIL APPEAL Nos.2847-2848,…

APEX COURT – after Mr. Solanki is released on bail, he shall immediately move out of the State of Gujarat and shall not enter the said State till the completion of remaining evidence, except on the days of hearing when he would be appearing in the court. It will be open to the trial court to add any further conditions, if the circumstances so warrant.

1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 492 OF 2014 DINUBHAI BOGHABHAI SOLANKI .....APPELLANT(S) VERSUS STATE OF GUJARAT & ORS. .....RESPONDENT(S) W…

CORPORATE LAWS – BANKING LAWS – APEX COURT – DEPOSIT OF TITLE DEED REGISTRATION COMPULSORY ? – in Veeramachineni Gangadhara Rao v. The Andhra Bank Ltd. And Ors.1 the High Court took the view that the waiver of the rights made by the mortgagor amounts to a contract and unless the said document is registered the mortgage will not take effect. Accordingly, the mortgage 1 (1971) 1 SCC 874 3 was held to be invalid and consequently the sale proceedings including the sale certificate were set aside. = validity of the mortgage on the strength of which the loan was sanctioned and obtained was not raised at any point of time in any of the earlier proceedings. It was so raised for the first time before the High Court. The High Court, in our considered view, therefore, ought not to have gone into the said question at such a belated stage. – The auction purchaser is an innocent third party who, it is stated, has obtained a loan to pay the sale price and is presently servicing the said loan. It is also stated that the auction purchaser is in possession of the property since March 2016 and has spent considerable amount of money in renovating/repairing the premises in question. 7. For all the aforesaid reasons, we are of the view that the conclusion of the High Court is not tenable in law. We accordingly allow this appeal and set aside the order of the High Court.

1 NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 17372 of 2017 [Arising out of Special Leave Petition (Civil) No.32885 of 2016] STATE BANK…

INCOME TAX LAWS – CORPORATE LAWS – APEX COURT – when income is computed under the head ‘profits and gains of business or profession’, rate of tax payable on the said income is much higher. However, the Legislature provided a simple formula, namely, treating the amounts paid or payable (whether in or out of India) and amount received or deemed to be received in India as mentioned in sub-section (2) of Section 44BB as the deemed profits and gains. Thereafter, on such deemed profits and gains 45 (treating the same as income), a concessional flat rate of 10% is charged to tax. The computation of income of the assessee was done under Section 44BB of the Act. However, the amount which was sought to be taxed was reimbursement of cost of tools lost in hole by ONGC. It is, thus, clear that this was not the amount which was covered by sub-section (2) of Section 44BB of the Act as ONGC had lost certain tools belonging to the assessee, and had compensated for the said loss by paying the amount in question. On these facts, conclusion of the High Court is correct. Even otherwise, the tax effect is Rs.15,12,344/-.

1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4906 OF 2010 SEDCO FOREX INTERNATIONAL INC. THROUGH IT’S CONSTITUTED ATTORNEY MR. NAVIN SARDA .....APPELLANT(S)…

The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench.= (i) The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench. (ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent. (iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was 48 between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. (iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component. (v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore. (vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment. (vii) The age of the deceased should be the basis for applying the multiplier. 49 (viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years. 62. The reference is answered accordingly. Matters be placed before the appropriate Bench.

1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELALTE JURISDICTION SPECIAL LEAVE PETITION (CIVIL) NO. 25590 OF 2014 National Insurance Company Limited …Petitioner(s) Versus Pranay Sethi and Ors. …Respondent(s)…

APEX COURT – whether the Gujarat Electricity Regulatory Commission (the Commission), in exercise of its inherent powers, could have extended the control period for the 1st respondent Company (Respondent no. 1). The control period is the period during which a particular tariff order operates. = “Conclusions:- (i) When the 1st respondent commissioned its project beyond 13.03.2012, Commission cannot exercise its inherent jurisdiction and vary the terms to extend the control period of Tariff Order dated 29.01.2010 in so far as the 1st respondent of the contract-Power Purchase Agreement (PPA) between GUVNL and the first respondent; (ii) the earlier order passed by this Court in C.A. No.2315 of 2013 (dated 01.04.2013) has not conclusively decided the substantial question of law inter-se the parties−that is exercise of inherent jurisdiction by the Commission to vary the terms of PPA by extending the control period beyond the stipulated time.

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6399 OF 2016 GUJARAT URJA VIKAS NIGAM LIMITED ... APPELLANT (S) VERSUS SOLAR SEMICONDUCTOR POWER COMPANY (INDIA) PRIVATE…

APEX COURT – whether the finding of acquittal recorded by the Trial Court was legal or/and proper and was, therefore, entitled to record its own finding of either affirmance or reversal. – first, there was no motive on the part of the accused persons (appellants) to kill Hariya. Second, the intention was to teach a lesson to Hariya because he had insulted Gaya Prasad in Panchayat on an incident which had occurred in marriage in their community in recent 12 past. Third, Dr. Bharadwaj (PW-14) who performed post mortem did not say in his evidence that injuries caused to Hariya were sufficient in the ordinary course of nature to have caused death, and lastly, Hariya survived for 14 days from the date of incident.= factors were rightly taken into consideration for holding the appellants guilty for committing offence falling under Section 304 Part II of IPC. Moreover, we cannot again de novo re-appreciate the evidence. It is not permissible unless the findings of the High Court are wholly perverse or against the evidence.

Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No.1008 OF 2008 Pooranlal & Anr. Appellant(s) VERSUS The State of Madhya Pradesh Respondent(s) J U D G…

APEX COURT – public auction – suit for refund of deposited amount as four additional conditions are incorporated after auction – entitled for refund with interest – In the first place, the appellant ensured compliance of the term because he deposited 1/4th amount of Rs. 10,45,000/- on the same day, i.e.,11.01.1996 by cheque. Secondly, the respondents also accepted 23 the cheque from the appellant because deposit of money by cheque was one of the modes of payment. Had it not been so, the respondents would not have accepted the cheque from the appellant. Thirdly, the stop payment was done when the appellant received the acceptance letter containing four additional conditions to which he was not agreeable. He had, therefore, every right to wriggle out of the auction proceedings and stop further payment towards the transaction. Such action on the part of the appellant (bidder) did not amount to a breach of clause 4 so as to give right to the State to forfeit the security deposit.= we are of the considered opinion, that the appellant did not commit any breach of the term(s) and condition(s) of the notice inviting bids and on the other hand, it was the respondents who committed breaches. In 24 these circumstances, the State had no right to forfeit the security amount and instead it should have been returned when demanded by the appellant.- after cancellation of the auction proceedings in question, the plot in question was re-auctioned by the State and the same fetched Rs.134.00 lakhs as against appellant’s bid amount of Rs.53,50,000/-. Learned counsel for the respondents did not dispute this fact. In such circumstances, we find that the respondent did not suffer any monetary loss in the transaction and on the other hand earned more money as against what they would have got from the appellant. It is for this additional reason also, we are of the view that the action on the part of the respondents(State) in 25 forfeiting the security deposit of the appellant was wholly unjustified. = state should act as Honest Person do not dependant on technicalities “…..we have often had occasion to say that when the State deals with a citizen it should not ordinarily reply on technicalities, and if the State is satisfied that the case of the citizen is a just one, even though legal defences may be open to it, it must act, as has been said by eminent Judges, as an honest person.” = We are, therefore, of the considered opinion that both the Courts below were not justified in their respective reasoning and the conclusion in dismissing the appellant’s suit. The appellant’s suit should have been decreed against the respondents. -The appeal thus succeeds and is allowed with cost throughout. Impugned judgment and decree of the High Court and the Trial Court are set aside and the appellant’s (plaintiff) suit is decreed against the 27 respondents (defendants). It is declared that letter dated 24.02.1996 of the respondents forfeiting the security deposit of the appellant is illegal and bad in law. A money decree for refund of Rs.3 lakhs is accordingly passed in favour of the appellant(plaintiff) and against the respondents (defendants) along with interest payable on Rs.3 lakhs at the rate of 9% p.a. from 01.02.1996 till realization.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No.7665 OF 2009 Suresh Kumar Wadhwa ….Appellant(s) VERSUS State of M.P. & Ors. …Respondent(s) J U D G…

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR= Even if the appeal against conviction preferred by the Petitioner be treated as a continuation of the criminal case, = Even if the appeal against conviction preferred by the Petitioner be treated as a continuation of the criminal case, the words “judicial proceedings” will naturally have to be read in the context of the rules as being confined to a proceeding related to conduct in service which led to conviction on a criminal charge. To read into it the pendency of an appeal preferred by the petitioner against his conviction under Section 306 IPC to withhold full pension would be doing complete violence to Rule 69 and shall be completely beyond its jurisdiction and scope – The Petitioner is held entitled to full pension from date of superannuation alongwith gratuity and other superannuation benefits, if any. The Respondents shall pay interest on Gratuity as provided for in Rule 68 of the Pension Rules or any statutory interest as the case may be. Relying on (1994) 2 SCC 406 (R.R.Bhanot v. Union of India) the Petitioner is held entitled to interest on the arrears of pension @12% p.a. from the date of superannuation till the actual date of payment.

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Civil Writ Petition No. 12437 / 2012 H.R. Choudhary S/o Late Shri Kana Ram Choudhary, aged about 69 Years, D-40,…

MADURAI BENCH OF MADRAS HIGH COURT = suit for partition and separate possession = can not be considered as Exclusive possession = However, having regard to their claim that the third defendant is entitled only to 1/4th share, their exclusive possession pleaded by them cannot be taken as a plea of a stranger claiming exclusive right over the entire property but as a joint owner. Though the property is settled in favour of first plaintiff and first defendant under the Will Ex.A3, the possession and enjoyment of the first item of property by the third defendant cannot be taken as one by a person who is entitled to be in possession as an exclusive owner. It was only because Dr.Jayaraman died, suddenly in a road accident, the property is in the enjoyment of third defendant as a person living along with Dr.Jayaraman during his life time and not as a person having independent title ; Since the Hindu Succession (Amendment) Act, 2005, came after the death of Dr.Jayaraman and the succession opens immediately upon the death of Dr.Jayaraman, a specific ground was raised in the appeal memorandum that the third defendant is entitled to 1/4th share in items 5 to 9. = State Amendment to the Hindu Succession Act, 1956.= As pointed out earlier, items 5 to 9 of the suit properties are allotted to Dr.Jayaraman in a family partition and it has been held by the trial Court that they are his ancestral properties. After the death of Dr.Jayaraman in the year 2002, his two daughters are entitled to equal share as that of Dr.Jayaraman and as a result, the plaintiffs and first defendant are entitled to 5/12 share and the first wife of Dr.Jayaraman, namely, the second plaintiff and third defendant, the illegitimate son of Dr.Jayaraman are entitled to 1/12 share. This is by virtue of the State Amendment to the Hindu Succession Act, 1956.

http://judis.nic.in/HCS/list_new2.asp?FileName=129549&Table_Main_Txt=cheordtext BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 09.10.2017 Reserved on: 02.01.2017 Delivered on: 09.10.2017 CORAM THE HONOURABLE MR.JUSTICE S.S.SUNDAR Appeal Suit (MD) No.291 of 2008 and M.P.(MD)Nos.1…