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Bombay High Court questioned “Anna Hazare’s Stir as interference with functioning of the Parliament ?”

Kartikey Shroff — Fri, 23 Dec 2011 19:05:18 +0000

"Wouldn’t your stir interfere with the functioning of Parliament?" the two-judge division bench of Hon. Mr. justices PB Majmudar and Mr. Justice Mridula Bhatkar of Bombay High Court recently asked Team Anna in respect of his proposed stir in Mumbai.The Bombay High Court came down heavily on Anna Hazare and his team, who had sought permission to use the MMRDA grounds in Mumbai for his fast, saying that "the court cannot allow parallel canvassing when Parliament is seized with a debate on the Lokpal Bill. Public opinion can be created in the entire country, so why are they insisting on this place?" the judge asked. He also told Team Anna that they were expecting too much from the government.The judge also said people in Mumbai are very sensitive about noise pollution due to rallies. "What is Satyagraha to you may not be for others. There will be people who may not want your Satyagraha," the HC judge said.As per the media report of IBN Live India, Hazare has also made it clear that he will go to jail if he does not get a place to protest… " Can a person or the mass be allowed to coarse or pressurize our Government beyond the limits of laws in the name of satyagrah or in the nae of the Freedom of Expression, Movement and Demonstration as such ? " is now another question of laws and facts looking to the prevailing situation so developed

No Revenue Authority can ignore even a Kaccha Entry : Gujarat High Court

Kartikey Shroff — Fri, 23 Dec 2011 18:26:05 +0000

While adjudicating SPECIAL CIVIL APPLICATION No. 12060 of 2011 with SPECIAL CIVIL APPLICATION No. 12061 of 2011, the HON. MR.JUSTICE S.R.BRAHMBHATT has recently ruled and observed that " The question arises as to whether the District Collector was justified in ignoring the Kachha entry and issuing the notice only to the original vendor. The cancellation of that entry has direct nexus and adverse impact upon the holding in question. Therefore, when the rights of parties are infringed on account of any action, even if it is administrative action, the notice is required to be issued to the party concerned, who is likely to be affected. On this principle alone without opining upon the merits of the order of the Collector, the order is quashed and set aside. The Court reiterate at the cost of repetition that the Court has not opined about the merit of passing the order of cancelling the entry no. 68. However, the order is required to be quashed only on account of the fact that the present petitioners whose names are there in the form of Kachha entries were not heard and they were likely to be affected."

In absence of allegations that applicants at the relevant time were in day to day affairs & management of the accused Company in a complaint, the applicants cannot be held vicariously liable under Sec: 141 of NI Act

Kartikey Shroff — Fri, 23 Dec 2011 18:22:07 +0000

While granting an order to set aside a complaint, for the offence under Section 138 read with Section 141 of the NI Act for dishonor of cheque signed and issued by an accused Company, and admittedly not signed by the accused applicants chairman and its directors, the Hon. Mr. Justice M.R. Shah of Gujarat High Court has recently reiterated the ratio set up by the Hon. Apex Court and significantly observed upon disposal of CRIMINAL MISC.APPLICATION No. 13256 of 2007 that " There are no averments and allegations in the complaint that the applicants at the relevant time were in day to day affairs and management of the original accused Company, as required under Section 141 of the NI Act. Considering the decisions of the Hon’ble Supreme Court in the case ofNational Small Industries Corporation(Supra) and Central Bank of India(Supra), in absence of such averments in the complaint, the applicants cannot be held vicariously liable under Section 141 of NI Act for dishonor of the cheque issued by Company and for the offences alleged to have been committed by Company under Section 138 of the NI Act. It is also required to be noted that even the accused applicants have already resigned as Directors and intimation to that effect was given to the Registrar of Companies prior to the issuance of the cheque by original accused No.1 Company. Under the circumstances also, it cannot be said that applicants have committed any offence as alleged. Under the circumstances, to continue the criminal proceedings against the applicants would be unnecessary harassment to them and/or the same shall be abuse of process of law and Court as, as stated herein above, the applicants cannot be held vicariously liable under Section 141 of NI Act. Under the circumstances, this Court is of the opinion that this is a fit case to exercise powers under Section 482 of the CrPC and to quash and set aside the impugned complaint so far as the applicants accused are concerned."

"Absence of basis ingredients of offence in a complaint justifies quashing of such complaint" : SC

Kartikey Shroff — Fri, 23 Dec 2011 18:13:08 +0000

Setting up a landmark judicial precedence in the matters of Gorige Pentaiah v. State of Andhra Pradesh & Others (2008) 12 SCC 531, the Hon. Apex court has significantly observed with the order of quashing the impugned criminal complaint FIR that " when the basic ingredients of the offence are missing in the complaint, then permitting such a complaint to continue and to compel the appellant to face the rigmarole of the criminal trial would be totally unjustified leading to abuse of process of law."

Gujarat High Court slams Gujarat State Government in respect of reservation for weaker sections in power.

Kartikey Shroff — Wed, 21 Dec 2011 05:35:56 +0000

While deciding the issue, raised in writ proceedings by the petitioners Nathabhai Zala and Mohan Vaghela of Thoriyali and Khodapipar villages in Rajkot district after the Gujarat state government failed to respond to ensure reserved seats for the backward classes in their respective villages, A division bench of the Hon. Mr. justice VM Sahai and Mr. Justice AJ Desai awfully criticized against the Gujarat state government yesterday and has ordered for a fresh panchayati elections be held on December 29 in these villages after seats are reserved for the backward community members, with a specific direction to all the concerned departments, including the state election commission to ensure that detailed list of these "lesser" populated villages is prepared and ensured that every village in the state has a seat reserved for scheduled castes and scheduled tribes. The Division Bench observed that the weaker sections were prevented from providing effective leadership as dominant sections captured power and used it for their ends. This led to loss of faith in grassroot democracy. As per a media report, since decades the Gujarat state government had avoided reserving seats for representatives of these backward classes in close to 5,000 villages panchayat citing "inadequate populations" of these villages, out of 12000 villages of the state.In accordance with the provisions of article 243 B of our constitution, the reservation for these weaker classes, be it a lesser or a sizeable populated village is mandatory. The division bench has slammed the Gujarat state government, setting up a landmark mandate against the state government, now to ensure that every village in Gujarat has a seat reserved for representatives from backward communities.

Illegal Mushrooming of Educational Institutes in our Country is again awfully criticized by the Apex Court

Kartikey Shroff — Tue, 20 Dec 2011 21:28:31 +0000

While confirming the order of the dismissal Order of Gujarat High Court, in the matters of the writ proceedings initiated by unapproved MSKM B.Ed. College of Gujarat, managed by Shri Morvi Sarvajanik Kelavni Mandal, The Hon. Justice Mr. T.S. THAKUR, of Supreme Court of India, has further dismissed CIVIL APPEAL NO.11215 OF 2011, and has observed some serious remarks against the illegal mushrooming of educational institutes in our country as such that " Mushroom growth of ill-equipped, under-staffed and un-recognised educational institutions was noticed by this Court in State of Maharashtra v. Vikas Sahebrao Roundale and Ors. (1992) 4 SCC 435. This Court observed that the field of education had become a fertile, perennial and profitable business with the least capital outlay in some States and that societies and individuals were establishing such institutions without complying with the statutory requirements. The unfortunate part is that despite repeated pronouncements of this Court over the past two decades deprecating the setting up of such institutions.The mushrooming of the colleges continues all over the country at times in complicity with the statutory authorities, who fail to check this process by effectively enforcing the provisions of the NCTE Act and the Regulations framed thereunder. The present is one such case where the institution established by the appellant has been inspected more than once and several deficiencies that seriously affect its capacity to impart quality education and training to future teachers specifically pointed out. It is difficult to appreciate how the institution could have reported compliance with the requirements of the regulations and complete removal of the deficiencies after the order passed by the High Court when the institution had neither the land standing in its name nor the building constructed in which it could conduct the training program. The fact that the institution was being run in a building which was shared by two other colleges was itself sufficient to justify withdrawal of the recognition granted in its favour.

"Accused has no right to file any materials or documents at the stage of framing of charges" SC

Kartikey Shroff — Tue, 20 Dec 2011 16:49:47 +0000

While deciding a petition of the applicant Helios & Matheson Information Technology Ltd. & Ors., in the matter of SPECIAL LEAVE PETITION (CRL.) NO.4606 of 2011, the Hon. Supreme Court of India, has reiterated the principle of criminal jurisprudence in respect of the rights of the accused at the time of framing of charges, as earlier decided in the matters of State of Orissa v. Debendra Nath Padhi (2005) 1 SCC 568, and has observed that " The law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. No provision in the Code of Criminal Procedure, 1973 (for short the "Code") grants to the accused any right to file any material or document at the stage of framing of charge. That right is granted only at the stage of the trial. Satish Mehra case, (1996) 9 SCC 766 holding that the trial court has powers to consider even materials which the accused may produce at the stage of Section 227 of the Code has not been correctly decided. It is well settled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of the contention of the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence."

" For custody of children, the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute." SC

Kartikey Shroff — Tue, 20 Dec 2011 15:50:52 +0000

While adjudicating about the custody of the minor children, in a judicial battle between husband and wife, in the matters of SPECIAL LEAVE PETITION (C) Nos. 35468 & 35469 OF 2009 of the applicant wife Gayatri Bajaj, the Hon. Supreme Court of India has again emphasized upon the principles of welfare and interest of the child and has observed that " In a matter relating to the custody of children the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute. Even the statues, namely, the Guardianship and Wards Act, 1890 and Hindu Minority and Guardianship Act, 1956 make it clear that the welfare of the child is a predominant consideration. In a matter of this nature, particularly, when father and mother fighting their case without reference to the welfare of the child, a heavy duty is cast upon the Court to exercise its discretion judiciously bearing in mind the welfare of the child as paramount consideration.

For a specific performance of a contract of sale of immovable property, there must be certainty with respect to the property to be sold. And the relinquishment has to be unambiguous " SC

Kartikey Shroff — Thu, 15 Dec 2011 16:25:11 +0000

While adjudicating some important issues of laws, with respect to the specific performance of a contract,in the matters of Civil Appeal No. 3249 OF 2005, The Hon Supreme Court of India has recently observed that " Damages and specific performance are both remedies available upon breach of obligations by a party to the contract. The former is considered to be a substantial remedy, whereas the latter is of course a specific remedy. It is true that explanation (i) to Section 10 of the Act provides that unless and until the contrary is proved, the Court shall presume that breach of contract to transfer immovable property cannot be adequately relieved by compensation in money. However, this presumption is not an irrebuttable one. That apart, for a specific performance of a contract of sale of immovable property, there must be certainty with respect to the property to be sold. As held by this Court in para 18 of Mayawanti Vs. Kaushalya Devi reported in 1990 (3) SCC 1 :-"18. The specific performance of a contract is the actual execution of the contract according to its stipulations and terms, and the courts direct the party in default to do the very thing which he contracted to do. The stipulations and terms of the contract have, therefore, to be certain and the parties must have been consensus ad idem. The burden of showing the stipulations and terms of the contract and that the minds were ad idem is, of course, on the plaintiff. If the stipulations and terms are uncertain, and the parties are not ad idem, there can be no specific performance, for there was no contract at all…………." As far as the propositions of law concerning relinquishment as canvassed by the respondents are concerned, there is no difficulty in accepting the same. However, the relinquishment has to be unambiguous. As held by this Court in Surjit Kaur Vs. Naurata Singh reported in 2000 (7) SCC 379, the party seeking part performance must unambiguously relinquish all claims to performance of remaining part of the contract. "

Sisva has set up an illustrative landmark in village administration

Kartikey Shroff — Wed, 14 Dec 2011 17:19:50 +0000

In Sisva village of Anand District in Gujarat has recently set up an illustrative landmark, by selecting unanimously only young unmarried girls of an age between 18 to 22 years as its Gram Panchayat Members, including its Sarpanch Hinalben Shaileshbhai Patel. It is also its fourth consecutive unanimous selection of all its Gram Panchayat Members, without any election, by this united electoral community of village Sisva. Such an unity at the smallest unit of an electoral body is not only meant to save lots of public money but also a symbol of strength to work together with unity, in the large interest and progress of their village. And now for this term, the selection of all these young educated girls in the administration of a village has reinforced the strength and vision of this village for its pretty good future. So this is not only a big illustration to all our villages, but also other electoral units like Municipalities, Corporation, Taluka Panchayat as well as District Panchayat, where more and more involvement of selected young generation could be a new gateway for a total revolution,meant for development and progress at large.