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Comments Off on Bar On ‘Hearing And Deciding’ Suit Doesn’t Mean It Can’t Be Filed: SC [Read Judgment]

Bar On ‘Hearing And Deciding’ Suit Doesn’t Mean It Can’t Be Filed: SC [Read Judgment]

News July 30, 2017

Ashok K.M

If a provision bars a court from “hearing and deciding” a suit on some contingency, does that mean the suit itself is not maintainable? This was an interesting question before the Supreme Court in Public Trust Shri Geeta Satsang Bhawan vs Nand Lal.

Section 29 of the Rajasthan Public Trust Act reads: “No suit to enforce a right on behalf of a public trust which is required to be registered under this Act but has not been so registered shall be heard or decided in any Court.”

 In the instant case, the trial court had heard and decided the suit by unregistered trust, while high court, allowing the appeal, dismissed the suit in limine, terming it ‘not maintainable’ in view of Section 29 of the Act.

An apex court bench comprising Justice RK Agrawal and Justice AM Sapre observed that the bar applies for “hearing and deciding” a suit, and not in filing the suit and it could be filed by the unregistered trust but it will neither be heard nor decided by the court unless and until the Trust is registered under the Act.

Section 29, therefore, operates as stay of proceedings in the suit so long as the Trust does not get itself registered under the Act,” the bench observed.

The bench further said the moment the Trust is registered under the Act, the trial court would assume the jurisdiction to hear and decide the suit on merits and the bar created under Section 29 of the Act for “hearing and deciding” the suit is then lifted and ceases to apply to the proceedings in the suit.

The court said the high court should have stayed the proceedings by granting some reasonable time to the plaintiff-Trust to get it registered under the Act and only if despite granting time, the Trust had failed to obtain the registration certificate, then in such eventuality, the first appellate court could have dismissed the suit.

Read the Judgment Here

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Comments Off on Duty Of Court To Set The Wrong Right In Case Of Wilful Disobedience Of Court Order: Himachal Pradesh HC [Read Judgment]

Duty Of Court To Set The Wrong Right In Case Of Wilful Disobedience Of Court Order: Himachal Pradesh HC [Read Judgment]

News July 30, 2017

Ashok K.M

The Himachal Pradesh High Court, while disposing of a second appeal in a civil suit, has made an observation pertaining to the objective of Rule 2-A of Order 39 of the Code of Civil Procedure.

Justice Tarlok Singh Chauhan observed that the primary object of the said provision is not to punish a person, who has disobeyed the order of injunction, but to enforce the order.

In the instant case, while the second appeal was pending before the high court, the parties had raised a structure, even as the court had restrained them from doing so.

Terming their conduct ‘surprising’, Justice Chauhan observed: “There is no remorse whatsoever on their part. Therefore, this Court is left with no other option to allow the application by directing the respondents to first purge the contempt.”

The court further observed: “Wilful disobedience, no doubt, invites wrath of penal action as envisaged in the said provision, hence, where any action is done in violation of a order or stay or injunction, it is the duty of the Court, as a policy, to set the wrong right and not to allow perpetuation of the wrong doing. These provisions are intended to maintain majesty of judicial order, to preserve rule of law and to ensure faith of litigants in the administration of justice. It is a curative provision and its purpose is to ensure that the direction of the Court is implemented, disobedience of order is remedied and status quo ante is restored.”

The court, directing the parties to purge the contempt by demolishing the structure raised during the pendency of the appeal, observed: “It is not only the power but the duty of the Court to uphold and maintain the dignity of courts and majesty of law even though the same may call for extreme step.”

Read the Judgment Here

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Comments Off on GST has transformed economy: PM

GST has transformed economy: PM

News July 30, 2017

Almost a month after the GST rollout, Prime Minister Narendra Modi today said it has transformed the economy and marks an example of cooperative federalism as states have been partners in all the decisions related to the new indirect tax regime.

He said the “smooth transition” of such a huge measure in a vast country involving crores of people was historic and can be a case study for universities around the world.

The prime minister said the priority of the government, while ushering in the GST (Goods and Services Tax), has been that there should no burden on the plate of the poor man.

In his monthly radio programme ‘Mann Ki Baat’, Modi also spoke about various other issues like the flood situation in various parts of the country and mentioned about the freedom movement in view of the upcoming Independence Day.

In the 30-minute broadcast also stressed the need for using only the environment-friendly items made by the poor people of the country during the festivals and hailed the performance by the Indian Women’s Cricket team in the recent World Cup.

Referring to the GST which was rolled out on July 1, the prime minister said, “one nation, one tax — how big a dream has been fulfilled.”

Underlining that GST is more than just a tax reform, he said it ushers in a new culture.

“It has been about a month since the GST was implemented and I feel satisfied and happy when someone writes to me to say how the prices of goods needed by the poor have reduced,” Modi said.

“GST has transformed the economy,” Modi said.

“GST, which I call ‘Good and Simple Tax’, has really made a very positive impact on our economy and in such a short span of time,” he added.

He said the speed at which the smooth transition, migration and new registration has taken place has led to a new confidence in the country.

Describing GST rollout is an example of cooperative federalism, the prime minister said all states are partners in it and have a responsibility as well. “All decisions were taken by the Centre and the states through consensus,” he said.

Modi said is an example of success of the collective effort of India and marks a “historic achievement”.

He said it was not only a tax reform but “is a measure that lends strength to the new culture of honesty. In a way it is campaign for cultural improvement.”

The prime minister said the magnitude of the exercise is an example in itself and will surely be studied by the world.

Modi said the people from the North East, far off mountains and those living in the jungles have written letters, saying that initially there were fears but as they started understanding the GST, it became easy and business became easier.

“And the biggest thing is that the trust of customers in traders has started going up,” the prime minister said.

“I am seeing how GST has impacted upon the transport and logistics sector, how the movement of trucks has increased, how their travel time has decreased, how highways have become clutter-free.

“With the increase in the speed of trucks, pollution has also reduced. Delivery of goods has also been speeded up.

Besides making life easier, it also strengthens the economic progress,” he said.

The post GST has transformed economy: PM appeared first on Legal News India – News Updates of Advocates, Law Firms, Law Institutes, Courts & Bars of India.

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Comments Off on Alteration of birth date in records at fag end of career

Alteration of birth date in records at fag end of career

News July 30, 2017

A plea seeking alteration of the date of birth in records by an employee at the fag end of career should not be entertained, the Madras High Court has said while dismissing a review application.

“If an employee seeks an alteration of his date of birth on the eve of his retirement, then a court of law must be doubly careful and cautious in accepting the request, as the attitude or tendency among the employees to raise such a plea comes only at the fag end of their career.

“Therefore, such a plea for alteration at the eleventh hour should not be entertained because of the possible wide ranging ramifications and repercussion to follow, which may result in compounding the problem in a manifold ways,” said a division bench comprising Justices M Venugopal and S Baskaran while dismissing the review application on July 24.

The application was filed by one Jeyaratnakumar to review a division bench order which declined to effect changes in records related to his date of birth.

The petitioner was appointed as Assistant Public Prosecutor in the Department of Prosecutions by the Tamil Nadu Public Service Commission in 1995 on the basis of his date of birth of June 1, 1960.

Facing superannuation, he moved the High Court to change his date of birth as February 9, 1961.

As the single judge had refused, he approached a division bench, which in 2008 upheld the single judge’s order.

The petitioner was given the appointment only on the basis of his year of birth as 1960. Otherwise, his candidature would have been rejected on ground of shortage of age, the bench had pointed out.

The petitioner filed the present review application challenging the bench’s order nearly after nine years.

Dismissing it too, Justice Venugopal, who wrote the order for the bench, said “such a prayer at the fag end of a person’s career is per se not to be entertained, as the same might affect the promotions of others, who are yearning for years below him and it would cause undoubtedly an irreparable injury and hardship to them.”

“Moreover, the power of review is not to be confused with an appellate one. If the applicant is aggrieved by the finding of the court, the remedy is not review,” the bench said.

Under the guise of review, the court would not re-hear the parties on point of law afresh, the bench said and dismissed the plea.

Source :PTI

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Comments Off on Eviction cases be given priority by courts: SC

Eviction cases be given priority by courts: SC

News July 30, 2017

Eviction matters should be given priority by courts at all stages of litigation, especially in cases where the landlord has sought eviction for his bonafide needs, the Supreme Court has said.

The apex court observed that the object of the rent law was to ensure speedy disposal of eviction cases between the landlord and the tenant and expressed hope that due attention would be paid by all courts in deciding such matters.

A bench of Justices A M Sapre and R Banumathi made these observations while dealing with an eviction-related case of Kerala which went on in different courts for over a decade.

“We sincerely feel that eviction matters should be given priority in their disposal at all stages of litigation and especially where the eviction is claimed on the ground of bonafide need of the landlord,” the bench said.

“We hope and trust that due attention would be paid by all courts to ensure speedy disposal of eviction cases,” it said while allowing the appeal filed by a landlord against an order of the Kerala High Court.

The high court, in its January 2016 verdict, had allowed the petition filed by one of the eight tenants who was evicted from a rented shop on the basis of an order passed by the trial court. The other seven tenants had not challenged the lower court’s order.

The high court, while allowing the plea of the tenant, had quashed four separate orders passed by the lower court and remanded the case for fresh trial. The landlord had approached the apex court against the high court’s order.

In its judgement, the apex court

held that the high court had not only erred in entertaining the writ petition filed by the tenant, but also erred in exercising its supervisory jurisdiction by interfering in the trial court’s orders.

Dealing with the challenge to the high court’s order, the top court said that in the absence of “any prima facie case having been made out on any jurisdictional issue affecting the very jurisdiction of the court in passing the eviction decree, the high court should have declined to examine the legality of four orders impugned therein”.

“On the other hand, we have no hesitation in forming an opinion that the respondent (tenant) was contesting the eviction proceedings as a ‘professional litigant’ and was successful to a large extent in keeping the proceedings pending for 10 years which enabled him to enjoy possession of the suit shop to the detriment of appellant’s (landlord) interest,” it said.

While setting aside the high court’s order, the bench also imposed a cost of Rs 25,000 on the tenant and directed him to pay the amount to the landlord.

Source : PTI

The post Eviction cases be given priority by courts: SC appeared first on Legal News India – News Updates of Advocates, Law Firms, Law Institutes, Courts & Bars of India.

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Comments Off on LL.B Admission: Universities May Set A Higher Qualifying Percentage Than The Minimum 45% Prescribed By BCI: MP HC [Read Order]

LL.B Admission: Universities May Set A Higher Qualifying Percentage Than The Minimum 45% Prescribed By BCI: MP HC [Read Order]

News July 30, 2017

Apoorva Mandhani

Madhya Pradesh High Court has held that Universities are free to prescribe minimum qualifying marks for admissions to law courses, subject to the condition that this is not below 45%, as stipulated by the Bar Council of India.

The Bench comprising Justice R.S. Jha and Justice Nandita Dubey interpreted Rule 7 of the BCI Rules to hold that it only prescribes the minimum qualifying percentage, and places no upper limit, therefore, leaving it open to the Universities to set a higher standard.

“A bare perusal of Rule 7 of the Bar Council of India rules makes it clear that the Bar Council of India, while prescribing the minimum qualifying marks for admission, has laid down that “the Bar Council of India may from time to time stipulate the minimum percentage of marks not below 45% of the total marks in case of general category candidates, 42% marks for the OBC category candidates and 40% of the total marks for the SC and ST category candidates to be obtained for the qualifying examination”. A bare perusal of the rule also makes it clear that the Bar Council of India while framing the rules has used the words “not below 45%” which makes it abundantly clear that the University cannot prescribe the minimum qualifying marks or percentage to be below 45% marks but can certainly prescribe a higher qualifying percentage of marks,” the Court observed.

It was hearing a Petition filed by Shri Ramakrishna College of Law, demanding a direction to Awadhesh Pratap Singh University, Rewa to lower the minimum cut-off percentage prescribed by the University, from 50% to 45%, in light of the BCI Rules framed in this regard.

The Court, however, refused to accept this reasoning, and observed, “A perusal of Ordinance 116 of the University indicates that the University has prescribed 50% as the qualifying marks which is in accordance with the rules framed by the Bar Council of India Rules. We are also of the considered opinion that the interpretation given to Rule 7 by the petitioner to the Bar Council of India Rules cannot be accepted as the rule specifically permits the University to prescribe the minimum qualifying percentage of marks not be below 45% marks without specifying the upper limit and in such circumstances, we do not find any merit in the contention of the petitioner.”

Read the Order Here

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Comments Off on 'கர்ணன் மீது சுப்ரீம் கோர்ட் பிறப்பித்த உத்தரவை தாக்கல் செய்ய வேண்டும்'

'கர்ணன் மீது சுப்ரீம் கோர்ட் பிறப்பித்த உத்தரவை தாக்கல் செய்ய வேண்டும்'

News July 29, 2017

புதுடில்லி,’முன்னாள் நீதிபதி கர்ணன் தொடர்பான, சுப்ரீம் கோர்ட்டின் உத்தரவு குறித்த ஆவணங்களை, தாக்கல் செய்ய வேண்டும்’ என, மத்திய அரசுக்கு, டில்லி ஐகோர்ட் உத்தரவிட்டு உள்ளது.அவமதிப்புகோல்கட்டா ஐகோர்ட் நீதிபதியாக இருந்தவர், கர்ணன். சுப்ரீம் கோர்ட் பிறப்பித்த உத்தரவுகளை மதிக்காததால், …

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Comments Off on ஹெலிகாப்டர் பேர ஊழல் பெண் இயக்குனருக்கு ஜாமின் மறுப்பு

ஹெலிகாப்டர் பேர ஊழல் பெண் இயக்குனருக்கு ஜாமின் மறுப்பு

News July 29, 2017

புதுடில்லி, : ஹெலிகாப்டர் பேர ஊழல் வழக்கில் கைதான, துபாயைச் சேர்ந்த நிறுவனத்தின், பெண் இயக்குனரின் ஜாமின் மனுவை, டில்லி கோர்ட் தள்ளுபடி செய்தது.வி.வி.ஐ.பி.,க்கள் பயன்படுத்துவதற்காக, இந்திய விமானப் படைக்கு, 12 ஹெலிகாப்டர்களை வாங்க, மத்தியில் மன்மோகன் சிங் தலைமையில் இருந்த, ஐ.மு., கூட்டணி அரசு முடிவு …

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Comments Off on சுகேஷ் ஜாமின் மனு டில்லி கோர்ட் தள்ளுபடி

சுகேஷ் ஜாமின் மனு டில்லி கோர்ட் தள்ளுபடி

News July 29, 2017

புதுடில்லி, :முடக்கப்பட்ட, அ.தி.மு.க.,வின் இரட்டை இலை சின்னத்தை மீட்க, தேர்தல் கமிஷன் அதிகாரிகளுக்கு லஞ்சம் கொடுக்க முயன்ற வழக்கில் கைதான இடைத்தரகர் சுகேஷ் சந்திராவின் ஜாமின் மனுவை, டில்லி கோர்ட், தள்ளுபடி செய்தது.தமிழக முன்னாள் முதல்வர், ஜெயலலிதாவின் மறைவையடுத்து ஏற்பட்ட குழப்பங்களால், …

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Comments Off on Machil Fake Encounter: AFT Gives Bail to 5-ex Army Men On Life Term,Says Victims Were Dressed Like Terrorist In Pathan Suit [Read Order]

Machil Fake Encounter: AFT Gives Bail to 5-ex Army Men On Life Term,Says Victims Were Dressed Like Terrorist In Pathan Suit [Read Order]

News July 29, 2017

Live Law News Network

The Armed Forces Tribunal (AFT) has granted bail to five of the six Army personnel sentenced to life imprisonment in the Machil fake encounter case of 2010.

The tribunal held that it could not be ruled out that the victims, three Kashmiri civilians, were terrorists since they were at a forward formation at Line of Control wearing pathan suits as worn by terrorists.

A bench of Justice VK Shali and Lt Gen SK Singh granted bail to ex-Colonel Dinesh Pathania, Ex-Captain Upendra, Havildar Devender Kumar, Lance Naik Lakhmi, Lance Naik Arun Kumar of 4 Rajput Battalion of 53 Infantry Brigade.

The AFT noted that the victims were wearing pathan suits which are worn by terrorists.

As the second reason for granting bail to the accused, the AFT said, “The ambush/ alleged encounter has taken place near Sona Pindi Gali, which is admittedly very near to the Line of Control (LoC). There was absolutely no justification for a civilian to be present at such a forward formation near LoC, that too during the night when the infiltration from across the border was high. The fact that the accused persons were terrorists who have infiltrated across the border or were crossing over to the other side cannot be ruled out because they were wearing pathan suits which are worn by terrorists”.

 “This is a case of circumstantial evidence and prima facie the entire chain of circumstances did not lead us to draw an irresistible conclusion that the deceased were civilians and that the accused persons were not innocent. The reason for saying so is that we have seen the photographs of the deceased persons. They were in combat pathan fatigue with ammunition belts around their waists and admittedly fire arms and ammunition is stated to have been recovered from them.

“If a person is a civilian, he would certainly not in combat uniform, much less he would carry the fire arm and ammunition with him…,” the tribunal said.

The five Army personnel along with rifleman Abbas Hussain, already on bail, were sentenced to life term by an Army court for killing three civilians – Shahzad Khan, Shafi Lone and Riyaz Lone— on the intervening night of April 29-30, 2010, in Machil sector of Kupwara district for claiming awards for gunning down militants. Their bodies were buried in a graveyard. The bodies were exhumed and identified by their relatives only when the families of the victims lodged a missing report exposing the fake encounter.

In jail for two-and-half years now, the five Army personnel came in appeal before AFT while arguing that the conviction is based on circumstantial evidence and the chain of evidence is not complete to lead to their conclusive guilt.

In its order granting bail, the AFT also relied on wireless intercepts to say that it could not be ruled out that one of the victims was a terrorist.

It also weighed in the ground that the missing complaint was filed belatedly by the victims’ families and “therefore, the fact that the parents of the victim having learned about the encounter of their son in the ambush on 29th/30th (April, 2010) night for allegedly being terrorist could not be ruled out and the complaint was belatedly filed only to garner some sympathy or getting material/ monetary compensation on account of the alleged killing of their child”.

The tribunal also noted that the judicial magistrate had rejected their request to examine a witness called Bashir Ahmed who, as per the prosecution, had visited the house of one of the victims a night before April 29, 2010, when the alleged incident took place.

“The net result is that the Judicial Magistrate seems to be controlling the court martial proceedings. This greatly prejudiced defence of the accused,” the AFT said.

“…there was another person by the name of Abdul Hamid Bhat who was accompanying Bashir Ahmed, who was also not similarly examined, which raises serious doubt that the evidence within the control and power of the prosecution was deliberately withheld because the same would have been produced which would have been gone in favour of the applicants,” it noted as the fourth reason for granting bail to the accused ex-Army personnel.

The AFT has asked the five men to not visit Kashmir and to surrender their passports.

Read the Order Here

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