Apex Court interprets applicability of Sector 3 of the Sports Act, 2007 #indianlaws

Jun
6
2016


Section 3(1), mandates sharing of live broadcasting signals with Prasar Bharati has to be 'without its advertisements'. Exception is, however, made in sub-section (2) of Section 3 which enables the broadcasting service provider to even share the contents along with advertisements, but subject to the condition that there has to be a sharing of revenue in the proportion prescribed in sub-section (2) of Section 3. When live broadcasting signal is shared containing advertisements, those advertisements have much larger viewership because of its telecast/broadcast on Prasar Bharati. The benefit of advertisement in such a case would accrue to those who have booked the advertisements and the service provider, in such an eventuality would definitely be in a position to charge much more from the advertisers. The rates of advertisement go up when circulation thereof is enhanced. 




Order of the Magistrate refusing to take cognizance revisable by Sessions Court #indianlaws

Jun
6
2016


The order of the Magistrate refusing to take cognizance is revisable. This power of revision can be exercised by the superior Court, which in this case, will be the Court of Sessions itself, either on the revision petition that can be filed by the aggrieved party or even suo moto by the revisional Court itself. The Court of Sessions is, thus, not powerless to pass an order in its revisionary jurisdiction. 




Mere disregard of some code or procedure is not enough to establish guilt under Prevention of Corruption Act #indianlaws

Jun
6
2016


Where the attempt of the prosecution was to bring the case within the fold of clause (ii) alleging that he misused his official position in issuing the certificate utterly fails as it is not even alleged in the chargesheet and not even iota of evidence is led as to what kind of pecuniary advantage was obtained by the appellant in issuing the said letter, prosecution under Prevention of Corruption Act is not warranted.

Mere disregard of relevant provisions of some Code as well as ordinary norms of procedural behaviour of government officials and contractors, without conclusively establishing, beyond a reasonable doubt, the guilt of the officials and contractors concerned, may give rise to a strong suspicion but that cannot be held to establish the guilt of the accused




HC to apply its mind while granting or non granting of appeal u/s 378 of CrPC #indianlaws

May
22
2016


 

In deciding the question whether requisite leave should or should not be granted, the High Court must apply its mind, consider whether prima facie case has been made out or arguable points have been raised and not whether the order of acquittal would or would not be set aside. In an appeal against acquittal, the High Court has full power to re- appreciate, review and reweigh at large the evidence on which the order of acquittal is founded and to reach its own conclusion on such evidence. Both questions of fact and of law are open to determination by the appellate Court. If, on the basis of the entire evidence on record, the order of acquittal is illegal, unwarranted or contrary to law such an order can be set aside by an appellate Court. Various expressions, such as, 'substantial and compelling reasons', 'very strong circumstances' etc. do not curtail the authority of the appellate Court in interfering with an order of acquittal recorded by the trial Court.

 



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Conviction cannot be based on the only circumstance of 'last seen together' #indianlaws

May
20
2016


A conviction cannot be based on the only circumstance of last seen together. Normally, last seen theory comes into play where the time gap, between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead, is so small that possibility of any person other than the accused being the perpetrator of the crime becomes impossible.




Right to life include right to live with dignity; Human dignity is a constitutional value and a goal #indianlaws

May
20
2016


The rights that are guaranteed to differently abled persons under the Equal Opportunities, Protection of Rights and Full Participation Act, 1995 are founded on the sound principle of human dignity which is the core value of human right and is treated as a significant facet of right to life and liberty. Such a right, now treated as human right of the persons who are disabled, has its roots in Article 21 of the Constitution. Article 21 provides for right to life and liberty. Right to life include right to live with dignity. Human dignity is a constitutional value and a constitutional goal.




Application of Part I of the Arbitration Act, 1996 is excluded where seat of Arbitration is outside India #indianlaws

May
20
2016


Where the parties choose a juridical seat of Arbitration outside India and provide that the law which governs Arbitration will be a law other than Indian law, part I of the Act would not have any application and, therefore, the award debtor would not be entitled to challenge the award by raising objections under Section 34 before a Court in India. A Court in India could not have jurisdiction to entertain such objections under Section 34 in such a case.




Power to release land from acquisition cannot be exercised arbitrarily and has be consistent with the doctrine of public trust #indianlaws

May
20
2016


Use of power for a purpose different from the one for which power is conferred is colourable exercise of power. Statutory and public power is trust and the authority on whom such power is conferred is accountable for its exercise. Fraud on power voids the action of the authority. There could be no objection to acquisition of land for a compelling public purpose nor to regulated development of colonies, but entertaining an application for releasing of land in favour of the builder who comes into picture after acquisition notification and release of land to such builder tantamounts to acquisition for a private purpose. It amounted to transfer of resources of poor for the benefit of the rich; permitting profiteering at the cost of livelihood and existence of a farmer.




Waiting period in divorce by mutual consent waived after considering educational background of parties #indianlaws

May
16
2016


In this case, the Court after considering the educational background of the parties, and the entire facts and circumstances, held that the situation posed was peculiar where the Court should invoke its jurisdiction under Article 142 of the Constitution in order to ensure justice to the parties. With the above observation, the statutory period of six months was waived and the marriage between the parties was dissolved.




Family Court empowered to give declaration – no matter whether relief is affirmative or negative #indianlaws

May
16
2016


Supreme Court observed that under Section 7(1) Explanation (b), a Suit or a proceeding for a declaration as to the validity of both marriage and matrimonial status of a person is within the exclusive jurisdiction of the Family Court, since under Section 8, all those jurisdictions covered under Section 7 are excluded from the purview of the jurisdiction of the Civil Courts. In case, there is a dispute on the matrimonial status of any person, a declaration in that regard has to be sought only before the Family Court. It makes no difference as to whether it is an affirmative relief or a negative relief. What is important is the declaration regarding the matrimonial status. Section 20 also endorses the view as the Family Courts Act, 1984, has an overriding effect on other laws.




It is not the form in which deed is clothed, but the nature of transaction, which is decisive #indianlaws

May
12
2016


A document, as is well known, must be read in its entirety. When character of a document is in question, although the heading thereof would not be conclusive, it plays a significant role. Intention of the parties must be gathered from the document itself but therefor circumstances attending thereto would also be relevant; particularly when the relationship between the parties is in question. For the said purpose, it is essential that all parts of the deed should be read in their entirety. In the instant case, the document in question had a condition that the amount mentioned when paid back within five years from the date of execution, the property would be returned and in the event of failure, the no right to claim back will exist. 




In the case of a valid nomination, a Cooperative Society is liable to transfer the share or interest of a member in the name of the nominee #indianlaws

May
9
2016


Where a member of a cooperative society nominates a person in consonance with the provisions of the Rules, on the death of such member, the cooperative society is mandated to transfer all the share or interest of such member in the name of the nominee. The rights of others on account of an inheritance or succession is a subservient right. Only if a member had not exercised the right of nomination under Section 79, then and then alone, the existing share or interest of the member would devolve by way of succession or inheritance.




For quashing of proceedings against a Director u/s 138/141 of the Act it must be shown that no offence is made out against him and quashing is not to be granted merely on asking #indianlaws

May
9
2016


When in view of the basic averment process is issued, the complaint must proceed against the Directors. But, if any Director of a company wants the process to be quashed by filing a petition under Section 482 of the Code on the ground that only a bald averment is made in the complaint and that he is really not concerned with the issuance of the cheque, he must in order to persuade the High Court to quash the process either furnish some sterling incontrovertible material or acceptable circumstances to substantiate his contention. He must make out a case that making him stand the trial would be an abuse of process of court. He cannot get the complaint quashed merely on the ground that apart from the basic averment no particulars are given in the complaint about his role, because ordinarily the basic averment would be sufficient to send him to trial and it could be argued that his further role could be brought out in the trial.




Partial amount deposited as precondition for entertaining appeal U/s 18 of SARFAESI Act neither secured asset nor a lien #indianlaws

May
9
2016


The partial deposit before the DRAT as a pre-condition for considering the appeal on merits in terms of Section 18 of the Act, is not a secured asset. It is not a secured debt either, since the borrower or the aggrieved person has not created any security interest on such pre-deposit in favour of the secured creditor. Therefore,on disposal of the appeal, either on merits or on withdrawal, or on being rendered infructuous, in case, the appellant makes a prayer for refund of the pre-deposit, the same has to be allowed and the pre-deposit has to be returned to the appellant, unless the Appellate Tribunal, on the request of the secured creditor but with the consent of the depositors, had already appropriated the pre-deposit towards the liability of the borrower, or with the consent, had adjusted the amount towards the dues. It is also not a bailment with the bank as provided under Section 148 of The Indian Contract Act, 1872.




Income from tips is income from other sources, received from customers and not employer; Section 192 of IT Act, does not apply #indianlaws

May
9
2016


The amount of tip paid by the employer to the employees has no reference to the contract of employment at all. Tips are received by the employer in a fiduciary capacity as trustee for payments that are received from customers which they disburse to their employees for service rendered to the customer. There is, therefore, no reference to the contract of employment when these amounts are paid by the employer to the employee. It was accordingly held that payments of collected tips would not be payments made “by or on behalf of” an employer and therefore section 192 of the IT Act is not attracted.




Judicial review, not an appeal from a decision, but a review of the manner in which decision was made #indianlaws

Apr
19
2016


Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. In connection with issue falling under service law, power of judicial review, as held, is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the Court. Power of judicial review is not to act as appellate authority to re-appreciate the evidence and to arrive at its own independent findings on the evidence.



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Transaction in minor’s name contravening Guardianship Act, 1956 and also without any legal necessity is voidable #indianlaws

Apr
19
2016


Section 7 of the Limitation Act makes it clear that when one of several persons who are jointly entitled to institute a suit or make an application for the execution of the decree and a discharge can be given without the concurrence of such person, time will run against all of them but when no such discharge can be given, time will not run against all of them until one of them becomes capable of giving discharge. Further, as per Explanation 2 of Section 7, the manager of a Hindu undivided family governed by Mitakshara law shall be deemed to be capable of giving a discharge without concurrence of other members of family only if he is in management of the joint family property. In the present case, Plaintiffs 3 to 5 though majors as on the date of institution of suit would not fall under Explanation 2 of Section 7 of the Limitation Act as they were not the manager or Karta of the joint family. The suit was held to be as instituted well within three years of limitation from the date of attaining majority as envisaged under Article 60 of the Act.




A person has a right to protect his possession against any person who cannot prove a better title by seeking a prohibitory injunction #indianlaws

Apr
3
2016


Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner. As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied]. 



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A party claiming adverse possession must prove that his possession is peaceful, open and continuous #indianlaws

Mar
21
2016


A party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period.



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Magistrate can change or alter the charge u/s 216 Cr.PC if there is defect or something is left out #indianlaws

Mar
21
2016


Magistrate has power under Section 216 Code of Criminal Procedure to alter or modify the charge on the basis of an application filed by the informant and further the trial court can alter the charge if some evidence has come on record or on the basis of the material already on record. 




No discretion of Court to award less than the specified fine U/s. 85(a)(i)(b) of the ESIC Act #indianlaws

Mar
21
2016


The Supreme Court held that the object of creating offence and penalty under the Employees’ State Insurance Act, 1948 is clearly to create deterrence against violation of provisions of the Act which are beneficial for the employees. Non-payment of contributions is an economic offence and therefore the Legislature has not only fixed a minimum term of imprisonment but also a fixed amount of fine of five thousand rupees under Section 85(a)(i)(b) of the Act. There is no discretion of awarding less than the specified fee, under the main provision. It is only the proviso which is in the nature of an exception where under the court is vested with discretion limited to imposition of imprisonment for a lesser term. No words are found in the proviso for imposing a lesser fine than that of five thousand rupees therefore, no interpretation is required unless there is a requirement of saving the provisions from vice of unconstitutionality or absurdity.




Contract if expressly bars award of interest pendente lite, the same cannot be awarded by the Arbitrator #indianlaws

Mar
20
2016


The Supreme Court, in this case has held that Arbitrator appointed with or without the intervention of the court, has jurisdiction to award interest, on the sums found due and payable, for the pre-reference period, in the absence of any specific stipulation or prohibition in the contract to claim or grant any such interest. Grant of pendente lite interest may depend upon several factors such as phraseology used in the agreement, clauses conferring power relating to arbitration, nature of claim and dispute referred to Arbitrator and on what items power to award interest has been taken away and for which period.




Grandson has no birth right in grandfather’s properties to claim partition during lifetime of his father #indianlaws

Mar
9
2016


When a male Hindu dies leaving behind a female relative specified in Class I of the Schedule or a male relative specified in that Class who claims through such female relative surviving him, then the interest of the deceased in the coparcenary property would devolve by testamentary or intestate succession, and not by survivorship. On the application of Section 8 of the Act, either by reason of the death of a male Hindu leaving self-acquired property or by the application of Section 6 proviso, such property would devolve only by intestacy and not survivorship. The ancestral property of the appellant’s grandfather ceased to be joint family property (by virtue of Section 8) on the date of death of Appellant’s grandfather and the other coparceners and his widow held the property as tenants in common and not as joint tenants. Thus, on the date of the birth of the Appellant in 1977, the said ancestral property, not being joint family property, the suit for partition of such property would not be maintainable. 




Power to extend time of assessment cannot be exercised after the expiry of presribed period of assessment #indianlaws

Mar
9
2016


The Supreme Court held that upon the lapse of the period of limitation prescribed, the right of the Department to assess an assesse gets extinguished and this confers a very valuable right on the assesse. If the Commissioner is permitted to grant the extension even after the expiry of original period of limitation prescribed under the Act, it will give him right to exercise such a power at any time even much after the last date of assessment. When the last date of assessment in respect of the relevant Assessment Years expired, it vested a valuable right in the assesse which cannot be lightly taken away. Section 11(10) has to be interpreted in the manner which is equitable to both the parties. It was accordingly held that power to extend the time is to be exercised before the normal period of assessment expires. SC



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Principles of Res Judicata #indianlaws

Mar
3
2016


Supreme Court has held that for a defence of res judicata to succeed, it is necessary to show that the claim in the subsequent suit or proceedings is in fact founded upon the same cause of action which was the foundation of the former suit or proceedings. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter, which should be taken to be the same thing as if the matter had been actually controverted and decided. The object of Explanation IV of Section 11 is to compel the plaintiff or the defendant to take all the grounds of attack or defence in one and the same suit. 



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Casual workers are covered under the definition of ‘employee’ as defined in ESI Act #indianlaws

Mar
3
2016


Supreme Court has held that Section 2(22) of the ESI Act covers the “casual employees” employed for a few days on a work of perennial nature and wages as defined in section 2(22) and wage period as defined in section 2(23) does not exclude the wages payable to casual workers. They cannot be deprived of the beneficial provisions of the Act. The employees’ work for the day of racing which is perennial activity of Appellant Club and in view of the provisions of the Act, Rules, Regulations and notification, such employees are covered and consequently are entitled for benefit of the Act.  




Prevention of Corruption Act applies to Private Banks as well #indianlaws

Mar
3
2016


The Supreme Court held that, clearly, the object of enactment of PC Act was to make the anti-corruption law more effective and widen its coverage. In view of definition of public servant in Section 46A of Banking Regulation Act, 1949 as amended the Managing Director and Executive Director of a Banking Company operating under licence issued by Reserve Bank of India, were already public servants, as such they cannot be excluded from definition of ‘public servant’. It was stated that for banking business what cannot be forgotten is Section 46A of Banking Regulation Act, 1949 and merely for the reason that Sections 161 to 165A of IPC have been repealed by the P.C. Act, 1988, relevance of Section 46A of Banking Regulation Act, 1949, is not lost. 




SARFAESI prevails over the Sick Industrial Companies (Special Provisions) Act #indianlaws

Feb
24
2016


The Supreme Court was observed that the purpose of the two enactments is entirely different. The purpose of one is to provide ameliorative measures for reconstruction of sick companies, and the purpose of the other is to provide for speedy recovery of debts of banks and financial institutions. Both the Acts are "special" in this sense. However, with reference to the specific purpose of reconstruction of sick companies, SICA must be held to be a special law, though it may be considered to be a general law in relation to the recovery of debts. Whereas, the RDDB Act may be considered to be a special law in relation to the recovery of debts and SICA may be considered to be a general law in this regard. 




There is a presumption that a negotiable instrument is supported by consideration #indianlaws

Feb
10
2016


The Hon'ble Court held that there is a presumption that a negotiable instrument is supported by consideration. There was no dispute that such a consideration existed in as much as the cheques were issued in connection with the discharge of the outstanding liability against Respondent. Mentioning of date that the cheques can be presented for encashment after certain date clearly showed that the cheques issued by him were not ornamental but were meant to be presented if the amount in question was not paid within the extended period. 




Intent of Parties to Arbitration cannot be ignored relating to law governing Arbitration #indianlaws

Feb
10
2016


The Hon’ble Supreme Court has held that the parties are free to agree on application of three different laws governing their entire contract – (1) proper law of contract, (2) proper law of arbitration agreement and (3) proper law of the conduct of arbitration, which is popularly and in legal parlance known as curial law. The agreement, in the instant case  revealed that the intention of the parties was to apply English Law to the arbitration agreement also and not limit it to the conduct of the arbitration was fairly clear from the relevant article in the Agreement. Once it was found that the law governing the arbitration agreement was English Law, Part I of the Indian Arbitration Act stood impliedly excluded. 








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