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advocatemmmohan: since 1985 practicing as advocate in both civil & criminal laws

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Saturday, August 28, 2010

ESCHEWING OF EVIDENCE

WHEN A WITNESS NOT TURNED UP FOR FURTHER CROSS EXAMINATION, THE WHOLE EVIDENCE COULD NOT BE ESCHEWED-2009[5] ALT518

Posted by advocatemmmohan at Saturday, August 28, 2010

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the Entrance Examination for Post-Graduate (Medical) Selection 2012, Odisha are challenging the validity of Clause 11.2 of the Prospectus for selection of candidates for Post- Graduate (Medical) Courses in the Government Medical Colleges of Odisha for the Academic Year, 2012, as violative of Article 14 of the Constitution of India. -they are undergoing studies from May 2012 onwards and, at this distance of time, if they are displaced, that will cause serious injustice to them since they have already left the government service/public sector undertakings for joining the post graduate course. In view of the stand taken by the Medical Council -of India that seats for post-graduate courses cannot be increased, we are inclined to give a direction to the State of Odisha or their undertakings to take back the in-service candidates into their service and permit them to serve in the rural/tribal areas so that they can compete through the category of in-service candidates in the 50% seats earmarked for them for admission to the post-graduate course.We are, therefore, inclined to allow this appeal and set aside the judgment of the Division Bench as well as learned Single Judge by quashing the proviso to clause 9(2)(d) of the MCI regulations to the extend indicated above as well as clause 11.2 of the prospectus issued for admission to the Post Graduate Medical Examination 2012 in the State of Odisha. The State of Odisha, the Medical Council of India and respondents 1 to 4 are directed to take urgent steps to re-arrange the merit list and to fill up the seats of the direct category, excluding in-service candidates who got admission in the open category on the strength of weightage, within a period of one week from today and give admission to the open category candidates strictly on the basis of merit. - 36. Appeals are allowed and the judgments of the High Court are set aside accordingly.

REPORTABLE IN THE SUPREME COURT OF INDIA ...
INTELLECTUAL PROPERTY APPELLATE BOARD=This is an appeal under section 91 of the Trade Marks Act, 1999 (hereinafter referred to as the Act) directed against the order dated 1.5.2006 passed by the Senior Examiner of Trade Marks whereby the application for registration of Trade Mark “OFLEX” has been refused.=After having perused the documents, we are in agreement with the observation made by the Senior Examiner of Trade Marks that the opponents and applicant both have filed half hearted evidences not bothering seriously, the concern. But certainly the onus is more upon applicants to show that they have right of registration and hence applicants stand to loose if evidence of applicant does not over weigh against evidence of opponents, the registered owner of conflicting mark. The appellant has failed to establish it use of the mark since 4.1.2000. The appellant has on the basis of available documents on our record has proved the user only since 9.4.2002. We, therefore, see no reason to interfere with the conclusion arrived at by the Senior Examiner of Trade Marks.

Mr. Vikash Rajgarhia v. Aristo Pharmaceuticals Limited - OA/51/2006/TM/AMD [2008] INIPAB 2 (19 March 2008) INTELLECTUAL PROPERTY APPELLATE ...
When the R.H. and pattadar pass book and title deed shows as private land, mere entry as A.W land in revenue record does not convert the land as government land = the revenue record clearly shows that the land is a private land. In support of his plea that it was a private land, the petitioner filed a copy of the Register of Holding, a perusal of which would show that the name of Guduru Rachaiah is shown as the owner of the property admeasuring Ac.4.84 cents in Sy.No.147/2. This extract shows that the same has been issued by the Office of the Sub-Registrar. The petitioner has also filed a copy of the pattadar passbook issued by the Mandal Revenue Officer as far back as 30.06.1994. It is not disputed that the petitioner has purchased the property under a registered sale deed on 12.04.1972. In the face of this overwhelming documentary evidence to show that the petitioner is the owner of the property, the only ground on which respondent No.5 declined to register the sale deed and respondent No.4 confirmed the refusal order of respondent No.5 is that in the list furnished by the then Tahsildar in the year 2007, the property was shown as AW belonging to the Government. Respondent Nos.4 and 5, being the independent functionaries exercising powers and discharging duties under the provisions of the Registration Act, 1908 (for short 'the Act'), are bound to act independently by exercising their mind without being blindly guided by the instructions of the Tahsildar or the other revenue officials of the District. The mere fact that in the opinion of the Tahsildar, the property is the Assessed Waste belonging to the Government and he has accordingly included the property in his list sent to the registering authority would not make the land truly belonging to the Government.= The Chief Secretary of the State of Andhra Pradesh is directed to personally examine the issue and issue appropriate instructions to the Principal Secretaries of the Revenue and Stamps and Registration to work out the modalities strictly in accordance with the provisions of Section 22-A of the Act to ensure that the revenue officials, such as Tahsildars, do not include the private properties in the Government list, unless the revenue record unambiguously shows that the properties belong to the Government, and the registering authorities do not refuse to entertain the documents simply on the basis of the list sent by the Tahsildars and other revenue officials.

THE HONOURABLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.38148 of 2012 11-12-2012 Gaddam Lingaiah The Distric...
registration with the Pharmacy Council of the State of Rajasthan (respondent No.1 herein - `Rajasthan Council' for short) under Section 32 of The Pharmacy Act, 1948 (hereinafter referred to as `the Act'). =The purpose of a welfare statute cannot be permitted to be defeated by the methods such as the one employed by the appellant. As stated earlier, the Act is passed for making better provisions for the regulation of the profession and practice of pharmacy. As is seen, the primary qualification for such a person is to have a degree or diploma in pharmacy. It is only as an alternative qualification that some other degree with three years experience is permitted. The last alternative qualification is that of five years experience in dispensing drugs which has to be in the concerned State. This is because under Section 31 of the Act, the person who wants to be registered as a pharmacist has to be of 18 years of age, and he has to reside and carry on the business or profession of pharmacy in that particular state. The State Pharmacy Council which issues the certificate of registration ought to satisfy itself that the person concerned did have atleast five years of experience, and which experience has obviously to be in that State for the State Council to assess it. In the instant case, the appellant did not reside or carry the business or profession of pharmacy or dispensing of drugs in Sikkim for more than five years. If any such method, as adopted by the appellant is permitted, persons who claim to have experience of five years in one State, will go to another State for a few months only to obtain registration in that State, and thereafter seek transfer of that registration to their own state. In the instant case, the first respondent did not have any opportunity to examine as to whether the appellant did have the

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION ...
whether a civil court has jurisdiction to entertain a suit when the schedule lands were acquired under the land acquisition proceedings and whether the High Court was justified in remanding the matter to the trial Court without examining the question with regard to the maintainability of the suit? = Section 9 of the Code of Civil Procedure, 1908 provides jurisdiction to try all suits of civil nature excepting those that are expressly or impliedly barred which reads as under: “9. Courts to try all civil suits unless barred.- The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.”- It is clear that the Land Acquisition Act is a complete Code in itself and is meant to serve public purpose. By necessary implication, the power of civil Court to take cognizance of the case under Section 9 of CPC stands excluded and a Civil Court has no jurisdiction to go into the question of the validity or legality of the notification under Section 4, declaration under Section 6 and subsequent proceedings except by the High court in a proceeding under 1Page 14 Article 226 of the Constitution. It is thus clear that the civil Court is devoid of jurisdiction to give declaration or even bare injunction being granted on the invalidity of the procedure contemplated under the Act. The only right available for the aggrieved person is to approach the High Court under Article 226 and this Court under Article 136 with self imposed restrictions on their exercise of extraordinary power.

Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1051 OF 2013 (Arising out of S...
Tamil Nadu Pattathari Asiriyargal Velaivaippu Sangam (Tamil Nadu Graduate Teachers Employment Opportunity Association) represented by its Secretary. In this writ petition, the Association has challenged on behalf of some of its members the order passed by the State Government in G.O.Ms.No.181, School Education Department, dated 15.11.2011 so far as it has prescribed Teacher Eligibility Test even for persons who have completed certificate verification conducted by the Teachers Recruitment Board for appointment to the post of Graduate Assistants and for consequential direction to respondents 1 and 2 to appoint the members of the petitioner association as Graduate Assistants on the basis of the seniority in the Statewide list kept by the employment exchange as was done in the case of Secondary Grade Teachers.=while the candidates who appeared in the typewriting test had no indefeasible or absolute right to seek an appointment, yet the same did not give a licence to the competent authority to cancel the examination and the result thereof in an arbitrary manner. The least which the candidates who were otherwise eligible for appointment and who had appeared in the examination that constituted a step-in-aid of a possible appointment in their favour, were entitled to is to ensure that the selection process was not allowed to be scuttled for mala fide reasons or in an arbitrary manner. 17.It is trite that Article 14 of the Constitution strikes at arbitrariness which is an antithesis of the guarantee contained in Articles 14 and 16 of the Constitution. Whether or not the cancellation of the typing test was arbitrary is a question which the Court shall have to examine once a challenge is mounted to any such action, no matter the candidates do not have an indefeasible right to claim an appointment against the advertised posts." 14.As held by the Supreme Court, the candidates do not have indefeasible right to claim appointment against the advertised posts. If the State explains the reason for prescribing the particular mode of selection and cancellation of the earlier process, such a decision cannot be frowned upon as violative of Articles 14 and 16 of the Constitution. On the other hand, in this case, the impugned G.O clearly explains the mandatory directions issued under the RTE Act which has to be obeyed by the State Government. 15.Secondly, the State Government has taken a policy decision to screen the candidates before their entry to the post. In these days because of mushrooming the Teachers Training Institutes and colleges all over State, such standardization process is inevitable. The petitioner cannot be heard to say that their case should be treated differently only because of their selection in the earlier selection process and on the basis of the old policy. 16.In view of the above factual matrix and legal precedents, the petitioner Association has not made out any case. Hence the writ petition will stand dismissed. No costs. Consequently connected miscellaneous petitions stand closed.

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.02.2012 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.2108 of 2012 and M.P.Nos.1...
whether under Section 154 Cr.P.C., a police officer is bound to register an FIR when a cognizable offence is made out or he (police officer) has an option, discretion or latitude of conducting some kind of preliminary enquiry before registering the FIR. 110. Learned counsel appearing for the Union of India and different States have expressed totally divergent views even before this Court. This Court also 8

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION WRIT PETITION (CRIMINAL...
A.P. ASSIGNED LANDS [PROHIBITION OF TRANSFERS] [AMENDMENT] ACT 2008

SEC.4[1][b][i] :- re assign the said resumed land, other than those lands/ areas as may be notified by the govt. from time to time in public...
Wajib-ul-arz is thus the record of customs in a village in regard to (i) easements (including the right to irrigation and right of way); and (ii) the right to fishing in privately owned/held lands and water bodies.Though the Code provides for maintaining a record of all customary easements imposed upon privately held lands and water bodies, significantly the Code does not provide the remedies available in the event of disturbance or interference with such easements recorded in Wajib- ul-arz, as the remedy is only way of a suit before the civil court. Customary easements are the most difficult to prove among easements. To establish a custom, the plaintiff will have to show that (a) the usage is ancient or from time immemorial; (b) the usage is regular and continuous; (c) the usage is certain and not varied; and (d) the usage is reasonable. If the Wajib-ul-arz (where such a record is maintained) records or shows the customary easement, it would make the task of civil courts comparatively easy, as there will be no need for detailed evidence to establish the custom. Be that as it may. If the remedy for violation of a customary easement recognized and recorded in the Wajib-ul-arz is by way of a civil suit, it is inconceivable that in regard to violation of a customary easement not recognized or recorded in the Wajib-ul-arz, the remedy would be only by way of a summary enquiry by the Tahsildar under section 131 of the Code, and not by a suit, before the civil court. In the circumstances, we reject the contention that Tahsildar alone has the jurisdiction, and not the civil court, to decide upon the existence or otherwise of a customary easement (relating to right of way or right to take water, to a person's land). The decision of the Tahsildar after a summary enquiry with reference to the `previous custom' and with due regard to the conveniences of all parties, under section 131(1) of the Code, is open to challenge in a civil suit and subject to the decision of the civil court. The jurisdiction of the civil court to try any suit relating to easements is not affected by section 131, 242 or section 257 of the Code. In view of the above, this appeal is allowed and the judgments and decrees of the courts below are set aside and it is declared that the civil court has the jurisdiction to try the suit filed by the appellants. The trial court is requested to dispose of the suit expeditiously.

1 Reportabl...
Limitation Act, 1963-Section 65 Explanation (a)-Claim of ownership of suit land by appellants after partition-Respondents claiming ownership by adverse possession and on ground of limitation-Courts below holding in favour of the respondent-Correctness of-Held, the co-sharer is not conferred a new title on partition but has an antecedent title-Hence, the limitation starts from the date the possession became adverse and not from the date of commencement of the right of ownership. Appellants-plaintiffs filed a suit before trial court for declaration of title over suit land, recovery of possession thereof and for permanent injunction from interference with their possession, against respondents- defendants. The appellants contended before the trial court that the suit land was an ancestral property belonging to the father-in-law of appellant no.1 and after his death, the property vested with the husband of appellant no.l being his son; that during the lifetime of the husband of appellant no.l, the respondents sought permission to make construction on the suit- land which was rejected by her husband; and that after the death of the husband, the respondents started constructing a compound wall without her permission. The respondents contended that they were in possession 9f the suit land for more than twelve years and that they were owners by adverse possession; and that the suit was barred by limitation. The trial court dismissed the suit on the ground that the appellants have failed to prove their title over the suit land. The first appellate court allowed the appeal of the appellants holding that they had identified the suit land and proved their title to the suit land. High Court, keeping the second appeal pending, remanded the matter to the first appellate court to decide the issue of limitation and adverse possession. On remand of the above issues, the first appellate court Held that on facts and evidence the respondents acquired title of suit land by way of adverse possession and that the suit was barred by law of limitation. The High Court confirmed the findings of the first appellate court and allowed the second appeal of the respondents. In appeal to the Court, the appellants contended that they became owners of the suit land as reversioners under registered deed of partition only in 1965 and consequently the suit filed in 1968 by the appellants was not barred by limitation; that the adverse possession in respect of suit land did not begin to run against the appellants prior to 1965; and that the respondents failed to prove three circumstances viz. hostile intention, long and uninterrupted possession and exercise of the right of exclusive ownership openly and to the knowledge of the owner, to establish ouster in claiming adverse possession. Citation: 2004 AIR 1893,2004(2 )SCR918 ,2004(3 )SCC376 ,2004(3 )SCALE172 ,2004(2 )Suppl.JT511 -Dismissing the appeal, the Court HELD: 1.1. Under the common law, there are two types of estates namely, estates in possession and estates in expectancy. Estates in remainder/reversion are estates in expectancy as opposed to estates in possession. Consequently, adverse possession against a life-tenant will not bar the reversioner/remainder from succeeding to the estate on the demise of the life-tenant. This is the reason for enacting explanation (a) to Article 65 of the said Act, which has no application to the facts of the case. [922-G-H] Ram Kisto Mandal and ANOTHER. v. Dhankisto Mandal, [1969] 1 SCR 342, distinguished. 1.2. Partition is really a process by which a joint enjoyment of the property is transformed into an enjoyment severally. In the case of partition, each co-sharer has an antecedent title and, therefore, there is no conferment of a new title. In the circumstances, the appellants cannot be heard to say that they became the owners of the property only when the partition deed was executed on 29.11.1965. Lastly, the appellants had asserted not only their own possession but also the possession of the husband of appellant no.l prior to his death. The starting point of limitation for adverse possession cannot be taken as 29.11.1965 and one has to take the date when the respondents' possession became adverse. [923-A-D] Hanamgowda v. Irgowda, AIR (1925) Bom 9, approved. Transfer of Property Act by Mula 9th Edition, referred to. 1.3. The defendants have to prove three elements viz. hostile intention, long and uninterrupted possession and exercise of the right of exclusive ownership openly and to the knowledge of the owner, to establish ouster in cases involving claim of adverse possession. However, in the present case there is a concurrent finding of fact recorded by the courts below to the effect that the respondents are in possession of the suit land from 1935 or in any event from 1941; that they have paid revenue cess from 1940; that they have paid property taxes; that their names were recorded in the revenue records and they were granted permission by the panchayat to construct compound wall. Moreover, in her deposition before the trial Court, appellant no.l had deposed that her husband had died six years prior to the institution of suit; that the suit land was in possession of her father-in-law and after his death it came in possession of her husband; that during the life time of her husband, the defendants had told her husband to allow them to construct a building on the land which he refused and that the respondents constructed the compound wall without their permission. In view of the above concurrent findings of fact recorded by the courts below on the issue of adverse possession, there is no reason to interfere in the matter. [923-E-H; 924-A] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6432 of 1998.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4 CASE NO.: Appeal (civil) 6432 of 1998 PETITIONER: Vasantiben P. Nayak & Ors...

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