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Sunday, January 6, 2019

Whether under Section 482 of the Cr.PC High Cout can quash the criminal proceedings against the original Accused which were for the offences under Sections 307, 294 read with Section 34 of the IPC, solely on the ground of settlement of the dispute the original Complainant and Accused ?

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Whether under Section 482 of the Cr.PC High Cout can  quash   the   criminal   proceedings   against   the   original Accused which were fo...

Whether charge framed under Sec.307 IPC is correct basing on the the material/evidence on record and the medical certificate and the injuries sustained by the complainant ? - No-

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Whether charge framed under  Sec.307 IPC is correct basing on the the   material/evidence   on    record   and   the medical certificate...
Friday, January 4, 2019

Whether sec. 80 DD [2 ] [a] - explanatory circular Circular No. CO/CRM/PS/622/23 dated January 24, 2008 and its proviso, denying the benefit of the insurance to the handicapped persons to get annuity or lumpsum amount during the lifetime of the parent/guardian of such a handicapped person, whereas the beneficiaries of other life insurance policy are getting annuity during the lifetime of the person who has taken insurance policy - violates the fundamental right of equality of the handicapped person enshrined in Article 14 of the Constitution. ? Public interest litigation - Sec.80 DD of Income Tax Act - "80DD. Deduction in respect of maintenance including medical treatment of a dependant who is a person with disability - Jeevan Aadhar Policy (Table 114) from the Life Insurance Corporation of India for the livelihood of their children. - The petitioner himself is a differently abled person as he is suffering from Cerebral Dysphagia - As per clause (b) of sub-section (1), if an assessee, being an individual or a HUF, has paid or deposited any amount under the scheme framed in this behalf by the LIC or any other insurer etc., such an assessee is entitled to deduction of a sum of Rs.75,000/- from his Gross Total Income in respect of the previous year. It is subject to the conditions which are specified in sub-section (2) of Section 80DD. We are concerned with the condition mentioned in clause (a) of sub-section (2).- (2) The deduction under clause (b) of sub-section (1) shall be allowed only if the following conditions are fulfilled, namely:— (a) the scheme referred to in clause (b) of sub-section (1) provides for payment of annuity or lump sum amount for the benefit of a dependant, being a person with disability, in the event of the death of the individual or the member of the Hindu undivided family in whose name subscription to the scheme has been made;- As per this condition, disabled dependant would get annuity or lumpsum payment in the event of death of the individual or the death of the member of the HUF, in whose name subscription to the scheme has been made. In order to give effect to the aforesaid special provision meant for the benefit of persons with disability, LIC has floated insurance policy named ‘Jeevan Aadhar (Table 114)’ for the benefit of the handicapped dependants. Accordingly, those assessees who get the Jeevan Aadhar policy for the benefit of handicapped dependants and pay or deposit the amount under the said policy become entitled to the deduction mentioned in Section 80DD of the Act. -The grievance of the petitioner pertains to Circular No. CO/CRM/PS/622/23 dated January 24, 2008 which is issued by the Income Tax Department. As per this Circular, no benefit can be paid to the dependant till the proposer/life assured survives. Relevant portion of this Circular is extracted below: "Representations were received for allowing annuity payments for the disabled dependant before death of parents/life assured after a certain age. But CBDT/Govt. Of India have refused to do so. Hence it is clarified that no benefit can be paid to dependant till the proposer/life assured survives.” It is, thus, clear that even when the entire subscription is paid under this policy meant for handicapped persons, this policy does not have maturity claim. The amount is payable to the dependant only on the demise of the proposer/life assured.- Submission of the petitioner is that by incorporating such a provision, the respondents are denying the benefit of the insurance to the handicapped persons to get annuity or lumpsum amount during the lifetime of the parent/guardian of such a handicapped person, whereas the beneficiaries of other life insurance policy are getting annuity during the lifetime of the person who has taken insurance policy. This, according to the petitioner, violates the fundamental right of equality of the handicapped person enshrined in Article 14 of the Constitution - Apex court hled that the petitioner may be justified in pointing out that there could be harsh cases where handicapped persons may need the payment on annuity or lumpsum basis even during the lifetime of their parents/guardians. For example, where guardian has become very old but is still alive, though he is not able to earn any longer or he may be a person who was in service and has retired from the said service and is not having any source of income. - In such cases, it may be difficult for such a parent/guardian to take care of the medical needs of his/her disabled child. Even when he/she has paid full premium, the handicapped person is not able to receive any annuity only because the parent/guardian of such handicapped person is still alive. -There may be many other such situations. However, it is for the Legislature to take care of these aspects and to provide suitable provision by making necessary amendments in Section 80DD of the Act - In fact, the Chief Commissioner for Persons with Disabilities has also felt that like other police holders, Jeevan Aadhar policy should also be allowed to mature after 55 years of age of the proposer and the annuity amount should be disbursed through the LLCs or National Trust - In the aforesaid circumstances, we dispose of this writ petition by urging upon respondent No.1 to have a relook into this provision by taking into consideration all the aspects, including those highlighted by the Court in this judgment, and explore the possibility of making suitable amendments.

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Hon'ble Mr. Justice Arjan Kumar Sikri 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL...
Thursday, January 3, 2019

Whether there is primie faice case and balance of incoveniyance and irrepearable loss for granting interim injunction pending the suit ? suit for Declaration of title and injunction - or.39, rule 1 and 2 interim injunction pending suit - district judge refused to give interrim injunciton - high court granted status quo - Apex court held that The Writ Petition under Article 227 challenging the orders passed by Civil Courts refusing to grant interim injunction under Order XXXIX, Rules 1 and 2 of the CPC could very well be maintainable, -. The Learned Single Judge granted an order of status quo with respect to the construction of the Electricity Sub-station even though the Plaintiffs/Respondent Nos. 1 to 3 herein had failed to produce any documentary evidence whatsoever to establish their title to the suit property. The Additional District Judge in the earlier round of litigation, in Title Appeal No. 20/1999 vide Judgment dated 29.08.2005 had categorically held that late Smt. Shyal Devi, the mother of Respondents No. 1 to 3 and the predecessor in title, had failed to establish her title to the suit property. The said finding has admittedly not been challenged by Respondent Nos. 1 to 3. The said finding has attained finality. In this view of the matter, the Respondents failed to make out a prima facie case, which would have justified the grant of an interim injunction. Furthermore, the Plaintiffs/Respondent Nos. 1 to 3 also failed to establish that the Electricity Sub-station was being constructed on their land. The Respondents No. 1 to 3 failed to describe the specific area which was in their alleged possession over which the Electricity Sub-station was being constructed. The balance of convenience lies entirely in favour of the Appellant – The General Manager, Jharkhand State Electricity Board - since the entire Electricity Sub-station has been fully constructed, and is now at the stage of being energised for supply of electricity inter alia to four feeders viz. Bhuiyadih (BHU), Baridih (BRD), Vidyapatinagar (VPN). It is estimated to provide electricity to approximately 1 lakh people. The Board is statutorily empowered under Section 67 of the Electricity Act, 2003 to undertake all actions necessary for transmission or supply of electricity, subject to the procedure under the Electricity Act, 2003. Respondent Nos. 1 to 3 have failed to produce any evidence of their possession over the vacant land, no undue hardship or prejudice would be caused to them, in the event the Appellant – The General Manager, Jharkhand State Electricity Board is permitted to proceed with the energisation of the Electricity sub-station. In the event that Respondents No. 1 to 3 are able to establish their title and possession to any part of the property utilised for the Electricity Sub-station, they would be entitled to compensation for any damage, detriment or inconvenience caused, in accordance with S. 67(3) of the Electricity Act, 2003, and/or any other law for the time being in force. The Electricity Sub-station is complete in all respects and ready to be energised, as per the documentary evidence placed before the Court. The overriding public interest of providing electricity to the local populace would far outweigh the alleged interest of Respondent Nos.1 to 3. In view of the aforesaid facts and circumstances, the decision of the Civil Judge (Junior Division – I) and the District Judge in refusing to grant a Temporary Injunction in Title Suit , was justified, and is restored. In view of the aforesaid reasons, the Civil Appeals are allowed, and the impugned Judgment dated May 19, 2005 passed by the Learned Single Judge of the Jharkhand High Court in Writ Petition No. 2081 of 2015 is hereby set aside. The impugned Judgment ordering the maintenance of status quo with respect to the Suit property till the final disposal of the Title Suit No. 45/2015 stands vacated. The findings given in this judgment are prima facie in nature given at the interim stage, and will not influence the trial of the case.

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Hon'ble Mr. Justice Ashok Bhushan 1 REPORTABLE IN THE SUPREME COURT OFINDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 21 OF 2...

Whether the retrenched employee who accepted compensation in full ,can be reinstated under sec.25 H of ID Act without calling for filling of vacancies ? - No - Reinstatement of an employee under Section 25 (H) of the ID Act - against the orders of Labour court, the single Judge of High court ordered respondent herein , to be reinstated into service with back wages. - Apex court held that The object behind enacting Section 25(H) of the ID Act is to give preference to retrenched employee over other persons by offering them re­employment in the services when the employer takes a decision to fill up the new vacancies.-So, in order to attract the provisions of Section 25(H) of the ID Act, it must be proved by the workman that firstly, he was the “retrenched employee” and secondly, his ex­employer has decided to fill up the vacancies in their set up and, therefore, he is entitled to claim preference over those persons, who have applied against such vacancies for a job while seeking re­employment in the services.- The case at hand is a case where the respondent's termination was held illegal and, in consequence thereof, he was awarded lump sum compensation of Rs.12,500/­ in full and final satisfaction. It is not in dispute that the respondent also accepted the compensation. This was, therefore, not a case of a retrenchment of the respondent from service as contemplated under Section 25(H) of the ID Act. - the respondent was not entitled to invoke the provisions of Section 25 (H) of the ID Act and seek reemployment by citing the case of another employee (Peon) who was already in employment and whose services were only regularized by the appellant on the basis of his service record in terms of the Rules. -In our view, the regularization of an employee already in service does not give any right to retrenched employee so as to enable him to invoke Section 25 (H) of the ID Act for claiming reemployment in the services. The reason is that by such act the employer do not offer any fresh employment to any person to fill any vacancy in their set up but they simply regularize the services of an employee already in service. Such act does not amount to filling any vacancy.- In our view, there lies a distinction between the expression ‘employment’ and ‘regularization of the service”. The expression ‘employment’ signifies a fresh employment to fill the vacancies whereas the expression ‘regularization of the service’ signifies that the employee, who is already in service, his services are regularized as per service regulations. - In our view, the Labour Court was, therefore, justified in answering the reference in appellant's favour and against the respondent by rightly holding that Section 25(H) of the ID Act had no application to the facts of this case whereas the High Court (Single Judge and Division Bench) was not right in allowing the respondent's prayer by directing the appellant to give him re­employment on the post of Peon. -. In view of the foregoing discussion, the appeal succeeds and is accordingly allowed. Impugned order is set aside and the award of the Labour Court is restored.

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Hon'ble Mr. Justice Abhay Manohar Sapre   REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No. ...