Advocates Act, 1961 _ Section 24(1)(f) _ Constitutional validity of _ Charging of annual fee _ Constitution of India, 1950 _ Article 226 _ Writ jurisdiction.

Bar Council seeking permission to recover renewal fee periodically from the Advocates and for enhancement of enrolment fee _ No permission can be granted unless such legislation is made _ Bar Council may take up the matter with the Central Government for taking appropriate steps in the amendment of the concerned provisions _ No relief can be granted in extraordinary jurisdiction under Article 226 of the Constitution of India. (See para 3)

Result : Petition dismissed.

Bar Council of Maharashtra & anr. Vs. Union of India & ors. WRIT PETITION NO.2166 OF 1989 (11-3-2002) (R.M.LODHA, S.J. VAZIFDAR, JJ.) LJSOFT (URC) 2002 (4) 109

Air India Service Regulations _ Regulation 42(xxiv), 44(ii) _ Customs Act, 1962 _ Section 129-E _ Industrial Disputes Act, 1947 _ Section 33(2)(b) _ Conspiracy involving smuggling _ Termination of services _ Acquittal in criminal proceedings.

1) Respondent charged with conspiracy involving smuggling of imported gold _ Termination order passed under Regulation 44(ii) founded upon the order of adjudication passed by the Additional Collector of Customs and the personal penalty imposed _ Appeal filed by the respondent before CEGAT and order was passed waiving the requirement of pre-deposit _ Tribunal erred in holding that order of dismissal was passed despite the order of stay passed by CEGAT _ Order of CEGAT was not an order staying the operation of the order passed by the Additional Collector of Customs _ Order of Tribunal that the passing of the order of dismissal showed mala fides or victimisation without any basis or substance. (See para 10)

2) Acquittal by criminal Court _ Considerations relevant to a criminal trial do not apply to the disciplinary jurisdiction of the employer _ Acquittal by the criminal Court did not relieve the respondent of the liability which he had incurred as a result of the order of the Additional Collector of Customs. (See para 14)

3) Respondent charged with conspiracy involving smuggling of imported gold _Adjudication proceedings had been concluded all the way upto the CEGAT with a finding of guilt against the respondent _ Regulation 44(ii) was attracted and was properly invoked _ Application filed by petitioner for approval of the Tribunal u/s 33(2)(b) of the Industrial Disputes Act allowed. (See para 14, 15)

Result : Petition allowed.

Air India Limited, Mumbai Vs. K.S. Bhat WRIT PETITION NO.1656 OF 2001 (24-7-2001) (DR. D.Y. CHANDRACHUD, J.) LJSOFT 2002 (4) 48

Bombay Government Premises (Eviction) Act, 1956 _ Section 4 _ Government allottee.

Petitioner staying in Government allotted quarter _ Constructed a house by taking the loan from the Government _ Petitioner placed reliance on the circulars and contended government allotted quarter is away from his office at a distance of more than 5 kms. and he should not be evicted from the official quarter _ Petitioner has not only obtained the loan from the government but has acquired a flat from 10% reservation quota _ Criteria in respect of 10% quota house or flat totally different _ Petitioner cannot get the benefit of those circulars or resolutions. (See para 8)

Result : Petition dismissed.

Chandreshkumar R. Shrivastav Vs. State of Maharashtra & ors. WRIT PETITION NO. 588 OF 1992 (24-10-2001) (J.G. CHITRE, J.P. DEVADHAR, JJ.) LJSOFT 2002 (4) 88

Bombay Industrial Relations Act, 1946 _ Section 78(1)A(a)(iii) _ Item 6 Schedule III _ Powers of Labour Court _ Absence of termination order _ rant of back-wages.

1) General strike in Mill in 1982 _ Petitioner employee prevented from reporting for work by the employer at the gate after the strike _ No order of termination of services _ Dispute of such nature would be a change sought by the employees in respect of item No. 6 of schedule III which would fall within clause (iii) of section 78(1)A(a) of the Act. (See para 6)

2) Appellants orally refused work right from December 1982 _ No order of termination of service nor any declaration of the reasons for which the work was not being given to the appellants _ Appellants justified in making an approach even in 1993 _ Single Judge erred in holding that the approach notices were barred by limitation. (See para 6, 11)

3) Mill under BIFR and has practically stopped functioning _ Question of granting reinstatement would not arise _ Appellant No.1 entitled for backwages till he had attained the age of 60 years _ Leave wages and amount of gratuity are also liable to be paid. (See para 12)

Result : Accordingly.

Shankar Vasudeo Masurkar and another Vs. Shree Sitaram Mills and another APPEAL NO. 936 OF 2001 (9-11-2001) (A.P. SHAH, S.A. BOBDE, JJ.) LJSOFT 2002 (4) 45

Bombay Industrial Relations Act, 1946 _ Section 78(1)A(a)(iii), 79(3)(b) _ Powers of Labour Court _ Absence of termination order _ Delay in submitting an approach notice _ Grant of back-wages.

1) Petitioner employee prevented from reporting for work by the employer at the gate after the strike _ No order of termination of services _ Case related to a change made by the employer or desired by the employee in respect of an industrial matter set out in Item 6 of Schedule III _ Case relates to a dispute under section 78(1)A(a)(iii) of the Act. (See para 5)

2) Limitation _ Dispute relating to clause (iii) of section 78(1)A(a) _ Application shall be made within three months of the employee concerned having last approached the employer under the proviso to sub-section (4) of section 42 _ Approach notice was issued on 7th January 1993 _ Application before the Labour Court filed on 20th March 1993 is within the period of limitation. (See para 6)

3) Grant of back-wages _ General strike declared in the Mill in 1982 _ Mill was taken over by the first respondent on 18th October, 1983 _ Approach notice made on 7th January 1993 almost 10 years after the workman was refused work _ Proper case where the workman should be denied backwages until 7th January, 1993 _ Workman entitled for wages due of the period between 7th January 1993 and the date on which the workman would attain the age of 63 years. (See para 11)

Result : Petition allowed.

Parshuram Ganpat Bhoir Vs. National Textile Corporation (S.M.) Ltd., Mumbai and others WRIT PETITION NO.368 OF 1998 (24-7-2001) (DR. D.Y. CHANDRACHUD, J.) LJSOFT 2002 (4) 32

Bombay Industrial Relations Act, 1947 _ Section 3(13) _ Employee _ Definition of.

Petitioner working as Junior Officer with respondent No.1 bank doing work of passing of cheques, ledger posting etc. _ Verifying the signature and stamping the cheques with the remark "pay cash" merely a routine duty _ Although the work performed by the employees was responsible and onerous, it is immaterial in determining the issue as to whether the work is supervisory in character or not _ Industrial Court erred in holding that petitioner was doing work of an administrative nature _ Petitioner is an employee within meaning of S.3(13). (See para 8, 9, 10, 11)

Result : Petition allowed.

Sudhir B. Shende Vs. Jai Hind Co-op Bank Ltd. & ors. WRIT PETITION NO.3263 OF 1995 (14-12-2001) (SMT. NISHITA MHATRE, J.) LJSOFT 2002 (4) 83

Bombay Judicial Service Recruitment Rules, 1956 _ Rule 5 _ Service _ Judiciary _ Appointment of District Judges _ Direct recruits & promotees _ Inter-se seniority _ Constitution of India, 1950 _ Article 32 _ Writ.

1) Appointment as District Judge from amongst the members of the Bar _ Allowed to work initially as an Additional District Judge on probation for a period of two years _ That period cannot be counted as service in the cadre of District Judge for seniority. (See para 4)

2) District Judges _ Appointed by nomination from the Bar _ Promoted from the rank of Additional District Judge _ Inter se seniority of _ Seniority of a promotee District Judge would reckon from the date of his promotion, from which date he is appointed to work as District Judge _ Seniority of direct recruit District Judges in the cadre would reckon only from the date they are appointed to work as District Judge after completion of the period or probation of two years. (See para 4)

Result: Petition allowed.

Maharashtra State Judicial Service Ass. Vs. High Court of Judicature at Bombay WRIT PETITION (C) NO. 609 OF 2000 (20-2-2002) (SC) (G.B. PATTANAIK, S.N. PHUKAN, JJ.) LJSOFT (SC) 2002 (4) 52

Bombay Judicial Service Recruitment Rules, 1956 _ Rule 5(v)(3)(ii) _ Probationer _ Deemed confirmation _ Termination of service.

1) Petitioner appointed as a Judge in the Bombay City Civil Court on probation for one year _ Probation was extended for two years and then for one year which ended on 4-6-1999 _ No maximum period prescribed within which the confirmation should take place _ Petitioner was a probationer or cannot be deemed to have been confirmed after one year of his service. (See para 5)

2) Appointment of Judge in the Bombay City Civil Court on probation _ Issuance of letter asking his willingness to be appointed as a Member, Maharashtra State Co-operative Appellate Court _ Issuance of such a letter cannot confer upon him the status of a confirmed Judge. (See para 7)

3) Probationer _ Termination of service _ Petitioner contended that termination is stigmatic inasmuch as the order states that he was "incompetent" to remain in service _ This only means that the petitioner has not completed the probation satisfactorily and hence, he cannot remain in service _ Incompetent to remain in service does not mean that the petitioner is condemned as "incompetent". (See para 11, 18)

Result : Petition dismissed.

Subhash Raghuvir Jaiswal Vs. State of Maharashtra & others WRIT PETITION NO. 1020 OF 2000 (27-2-2002) (P.S. PATANKAR, D.B. BHOSALE, JJ.) LJSOFT 2002 (4) 14

Bombay Motor Vehicles Tax Act, 1958 _ Section 3(1C)(a), 9 _ Bombay Motor Vehicles Tax Rules, 1959 _ Rule 12(3)(4) _ Refund of tax _ Limitation _ Starting point of.

Petitioner had paid one time tax on two wheeler _ Vehicle removed to Hyderabad and was registered on 2.7.1988 _ Petitioner applied for refund of life time tax on 16.7.1988 _ Claim rejected on the ground that refund has to be claimed within six months from the date of removal of the motor vehicle to other State _ Limitation of six months will have to be computed from the date on which the vehicle is registered with RTO at Hyderabad which is "sufficient proof" of transfer of the vehicle beyond the State of Maharashtra _ Application dated 16.7.1988 cannot be said to be beyond limitation. (See para 4, 5)

Result : Rule made absolute.

Afzalpurkar Vishwanath s/o Venkatesh Vs. State of Maharashtra & ors. WRIT PETITION NO. 2339 OF 1989 (25-9-2001) (AURANGABAD BENCH) (B.H. MARLAPALLE, N.V. DABHOLKAR, JJ.) LJSOFT 2002 (4) 99

Bombay Municipal Corporation Act, 1888 _ Section 105-B _ Service tenements _ Constitution of India, 1950 _ Article 226.

Premises allotted to the original allottees as service tenements _ Petitioners are heirs of the allottees _ Upon the original allottees ceasing to be in the service of the Municipal Corporation, the Petitioners have no right, title or interest and their occupation is unauthorised. (See para 6)

Result : Petition dismissed.

M.S. Joshi and ors. Vs. Municipal Corporation of Greater Mumbai WRIT PETITION NO. 1079 OF 2001 (6-6-2001) (DR. D.Y. CHANDRACHUD, J.) LJSOFT 2002 (4) 86

Bombay Municipal Corporation Act, 1888 _ Section 351, 412A _ Unauthorized construction _ Demolition _ Cancellation of licence _ Principles of natural justice _ Constitution of India, 1950 _ Article 14.

1) Petitioner carrying on the business of the sale of milk _ Licence renewed by the Municipal Corporation from time to time until 31st December, 1994 _ Licence cancelled vide order dated 2nd March, 1995 without offering to the Petitioner a reasonable opportunity of being heard _ Cancellation of licence contrary to the law. (See para 2)

2) Unauthorized construction _ Demolition _ Giving prior notice and opportunity of hearing is must _ Enforcement of the notice under Section 351 without serving the Petitioner was in breach of the provisions of the law _ Petitioner given an opportunity of placing all the relevant facts before the appropriate authority of the Municipal Corporation. (See para 2)

Result : Accordingly.

Ranbir Singh Chhabra Vs. Municipal Corporation of Gr. Bombay & anr. WRIT PETITION NO.1656 OF 1995 (15-6-2001) (DR. D.Y. CHANDRACHUD, J.) LJSOFT 2002 (4) 90

Bombay Municipal Corporation Act, 1888 _ Section 351, 527(1)(b) _ Show Cause notice _ Unauthorised construction _ Demolition Limitation.

Unauthorised extensions of shops _ Show-cause notices issued u/s 351 followed by orders dated 2nd September 1994 passed by the Deputy Municipal Commissioner to remove the illegal structures failing which Ward Officer was directed to demolish the same _ Cause of action accrued on 2nd September 1994 _ Act of execution of the order or step to implement the order cannot furnish cause of action for challenging the said original orders _ Suit filed beyond period of six months are barred by limitation _ Trial Court rightly dismissing the suits holding it to be barred by limitation. (See para 7, 13)

Result : Appeal dismissed.

Laxmichand Kalyanji Vs. Municipal Corporation of Greater Bombay FIRST APPEAL NOS.1191 AND 1192 OF 2001 (2-11-2001) (V.C. DAGA, J.) LJSOFT 2002 (4) 43

Bombay Police Act, 1952 _ Sections 56(1), 59 _ Externment order _ Excessive externment.

Petitioner externed for two years from Yavatmal and five neighbouring districts _ Activity of petitioner restricted to Yavatmal _ No data was placed with relation to the five districts _ Order of externment suffered from vice of excessive externment _ No greater restraint of personal liberty can be permitted than is reasonable _ Entire externment order liable to be quashed. (See para 6, 7)

Result : Petition allowed.

Praveen Dattuji Diwate Vs. State of Maharashtra & anr. CRIMINAL WRIT PETITION NO. 355 OF 2001 (5-3-2002) (NAGPUR BENCH) (S.D. GUNDEWAR, J.) LJSOFT (URC) 2002 (4) 107

Bombay Prevention of Fragmentation and Consolidation Holding Act, 1947 _ Section 31(1), 31(3) _ Suit for possession of land _ Breaking of consolidated land.

1) Suit for possession of land _ Title of the plaintiff and his predecessor disputed by the defendants _ Said dispute could not have been decided or adjudicated by the Collector _ Civil Court alone had jurisdiction to adjudicate and adjudge the title of a party. (See para 15)

2) Suit for possession of land which forms part of a consolidated block _ Plaintiff has to first approach the Civil Court and establish his title and right to the said piece of land _ Sub-division of the land cannot be automatically done soon after the plaintiff had established his title _ Plaintiff has to approach the Collector with the decree in his hand and request the Collector to grant sanction before breaking up of the block so that he would get actual possession of the suit land in accordance with the decree of the Civil Court. (See para 15, 16)

Result : Second Appeal dismissed.

Sidagonda Avagonda Sardar Patil & anr. Vs. Bhimgonda Kadgonda Kushappa/ Patil deceased by LRs. SECOND APPEAL NO.238 OF 1985 (28-1-2002) (R.J. KOCHAR, J.) LJSOFT 2002 (4) 64

Bombay Provincial Municipal Corporations Act, 1949 _ Section 2(44) _ Property Tax _ Amendment in the assessment book.

Property Tax _ Property assessed as residential complex for the purposes of property taxes _ Residential flat put to commercial use _ Petitioner running his hospital in the said property _ Any amendment in the assessment book can only be effective during the currency of official year _ Property cannot be assessed as commercial complex with retrospective effect for the purposes of property taxes. (See para 8)

Result : Petition partly allowed.

Dr. Satish Dattatray Shiyalkar Vs. Pimpri Chinchwad Municipal Corporation & anr. WRIT PETITION NO. 543 OF 1993 (6-2-2002) (R.M. LODHA, S.A. BOBDE, JJ.) LJSOFT 2002 (4) 56

Bombay Public Trusts Act, 1950 _ Section 70-A _ Powers of Charity Commissioner _ Scope of.

Rejection of the application on the ground of inordinate delay _ Power u/s 70-A not in the nature of mere countersigning order passed by the authority below _ Correctness of the findings of the lower authority are to be tested by independent analysis of all the materials on record _ Lower Court has referred to various facts which were totally over looked by the authorities while deciding the matter under Section 70-A _ Lower Court rightly remanded the matter for reconsideration. (See para 7, 8, 9)

Result : First Appeal dismissed.

Dadasaheb Dattajirao Nimbalkar & Ors. Vs. Ushadevi Rajaram Nimbalkar FIRST APPEAL NO.1144 OF 1988 (7-1-2002) (R.M.S. KHANDEPARKAR, J.) LJSOFT 2002 (4) 98

Bombay Rent Act, 1947 _ Section 5(11)(c)(i), 5(3), 28 _ Suit for declaration _ Jurisdiction of High Court.

1) Sale of suit flat _ Sale deed executed by Madanlal Gupta as Karta of Madanlal Gupta, Murarilal Gupta and four others _ Sale deed was signed by Murarilal Gupta alone for himself and as Constituted Attorney of other vendors including Madanlal Gupta _ Contended that no Power of Attorney executed by Madanlal Gupta in favour of Murarilal Gupta has been produced _ Rejecting the contention held that Sale deed executed in the office of the Sub-Registrar who would not have registered the same unless he was satisfied about Murarilal Gupta having such Power of Attorney. (See para 17)

2) Suit for declaration of title and possession _ Defendant No. 3 claiming to be a tenant on the basis of the Will of deceased tenant and also that she inherited the tenancy rights being one of the heirs _ Question whether Defendant No.3 is a tenant within the meaning of Section 5(11)(c)(i) and whether the Plaintiffs are landlords within the meaning of section 5(3), cannot be decided by High Court in its original jurisdiction _ No other Court in Greater Bombay except the Court of Small Causes has jurisdiction to entertain any such suit involving the suit claim or questions. (See para 21)

3) Suit for declaration of title and possession _ Claim of declaration on the strength of the title of ownership which plaintiff have acquired from the previous owners and plaintiff have proved that they are joint owners of the suit flat _ High Court had power and jurisdiction to grant the relief of declaration of title that the Plaintiffs are joint owners of the suit flat. (See para 23, 24)

Result : Suit partly decreed.

Dady Nowroji Adenwalla & ors. Vs. Burjor H. Antia & ors. SUIT NO.1578 OF 1994 (12/13-6-2001) (J.A. PATIL, J.) LJSOFT 2002 (4) 54

Bombay Tenancy and Agricultural Lands Act, 1948 _ Section 32G, 88B _ Constitution of India, 1950 _ Article 227.

Deosthan Inam Class III land _ Petitioners were tenants in the suit land _ Cannot become the deemed purchaser on tillers day in view of provisions of Section 88B _ Members of the M.R.T. did not apply provisions of Section 88B and did not declare that the suit lands were lands belonging to institution for public religious worship _ When the conclusion drawn by the Members of M.R.T. is correct and consistent with law, High Court cannot interfere in view of Article 227 of the Constitution of India. (See para 4, 5)

Result : Petition dismissed.

Nana Hari Gaikwad & ors. Vs. Badsha Alli Mulla WRIT PETITION NO.5611 OF 1988 (14-12-2001) (J.G. CHITRE, J.) LJSOFT 2002 (4) 87

Bombay Village Panchayats Act, 1958 _ Section 15 _ Bombay Village Panchayats Election Rules, 1959 _ Rule 8, 11(2A) _ Panchayat elections _ Reservation _ Constitution of India, 1950 _ Article 226, 243-O _ Maintainability of writ petition.

1) Panchayat elections _ Nomination papers of petitioner were accepted under the interim order of High Court and was elected unopposed being sole contestant _ Remedy under election law is not available to him in challenging the order of Returning Officer rejecting his nomination papers _ Matter has to be examined under Article 226. (See para 4)

2) Panchayat elections _ Reserved seats _ Neither the rules nor the prescribed form provide for a format for submission of caste certificate _ Government Resolution dated 29.10.1960 issued by Social Welfare Department provides prescribed specimen format _ Same is to be adhered to by issuing authority _ Returning Officer could not have insisted on the caste certificate being tendered in the prescribed form _ Further the defect is not of substantial character and the petitioner's nomination paper could not have been rejected. (See para 6)

Result : Accordingly.

Anant Janardan Patil Vs. State of Maharashtra & ors. WRIT PETITION NO.5141 OF 1997 (17-1-2002) (R.M. LODHA, S.A. BOBDE, JJ.) LJSOFT 2002 (4) 81

Central Excise and Salt Act, 1944 _ Section 11-A _ Extended period of limitation.

Appellant, an experimental & research organisation importing goods from abroad getting exemption from payment of customs duty _ Appellant believed that goods manufactured by it and supplied were not liable for payment of excise duty _ No tangible basis for the Department to come to the conclusion that there was wilful suppression for evasion of duty by the appellant _ Extended period of limitation would not apply. (See para 4)

Result: Appeal allowed.

Centre for Development of Advanced Computing, Pune Vs. Commissioner of Central Excise, Pune CIVIL APPEAL NO.2749 OF 2001 (27-2-2002) (SC) (B.N. KIRPAL, SHIVARAJ V. PATIL, BISHESHWAR PRASAD SINGH, JJ.) LJSOFT (SC) 2002 (4) 53

Code of Civil Procedure, 1908 _ Order IX Rule 13 _ Ex parte decree _ Setting aside of _ Bombay Rent Act, 1947 _ Section 28(1) _ Provincial Small Causes Courts Act, 1887 _ Section 17 Proviso _ Applicability of.

1) Small Causes Court established under the Provincial Small Causes Courts Act _ Procedure laid down in Rules 9-A to 9-D of the Bombay Rent Control Rules will have to be followed _ Procedure prescribed under the Provincial Small Causes Courts Act not applicable to Small Causes Court functioning under the Bombay Rent Act. (See para 23, 28, 29, 32)

2) Setting aside of judgment and decree for possession passed ex-parte against the tenant _ Provision of section 17 of Provincial Small Causes Courts Act not applicable _ Courts below erred in rejecting the application _ Application for setting aside ex parte decree restored. (See para 29, 32)

Result : Petition allowed.

Akbarali Husenali Gulamreza Vs. Hotel Rezaliya Private Ltd., Pune WRIT PETITION NO.26 OF 1990 (20-12-2001) (V.C. DAGA, J.) LJSOFT 2002 (4) 36

Code of Civil Procedure, 1908 _ Order VI Rule 14, 15 _ Defect in plaint _ Eviction proceedings _ Constitution of India, 1950 _ Article 227.

1) Eviction proceedings _ Plaint not signed by the Plaintiffs but signed only by their Advocate _ Petitioner contended that the plaint as filed was incompetent and suit was not maintainable _ Appellate Court has rightly permitted the Plaintiffs to sign the Plaint holding that provisions of order 6 Rules 14 and 15 are merely procedural and such defects can be cured even at a latter stage of the proceedings. (See para 5)

2) Courts below have held that the Plaintiffs have established their bonafide and reasonable requirement _ Scope of interference in Writ Jurisdiction under Article 227 very limited _ High Court cannot reappreciate the evidence. (See para 6)

Result : Petition dismissed.

Omprakash Dinodia Vs. Ashalata wd/o late Dr. Anant Kumar Karmarkar & ors. WRIT PETITION NO.6505 OF 2000 (9-11-2001) (A.M. KHANWILKAR, J.) LJSOFT 2002 (4) 84

Code of Civil Procedure, 1908 _ Order XLI Rule 27 _ Production for additional evidence _ CEGAT Procedure Rules, 1982 _ Rule 23.

CEGAT Proceedings _ Production for additional evidence _ Oral arguments raised for the first time by appellants _ Sufficient cause and reason for the petitioner to file the affidavits in order to rebut the fresh submissions made by the appellant _ Tribunal ought to have of its own accord called upon the appellant to file an affidavit _ Rule 23 of CEGAT Procedure Rules permits such permission on the part of the appellate Tribunal _ Tribunal failed to exercise jurisdiction by refusing to take the affidavits on record. (See para 10, 11)

Result : Petition allowed.

Union of India Vs. Churchill Alemao WRIT PETITION NO.236 OF 2000 (6-10-2001) (GOA BENCH) (P.S. PATANKAR, A.S. AGUIAR, JJ.) LJSOFT 2002 (4) 69

Code of Civil Procedure, 1908 _ Order XVII Rule 2 _ Order XV Rule 1 _ Failure to appear _ Mere physical presence _ Dismissal of suit.

1) Appearance/presence of parties _ Includes preparedness to cite evidence and/or to produce documents or to take any other step for disposal of the suit/case as may be considered necessary _ Mere physical presence of the litigant cannot be treated as appearance for the purposes of prosecuting the suit. (See para 21, 21-A, 22)

2) Suit adjourned from time to time for issuing directions _ Trial Court framed issues on 1-8-2001 and adjourned it to 30-8-2001, for dismissal of the suit instead of adjourning it for further hearing _ On 30-8-2001 none of the plaintiffs except the plaintiff No.2 were present _ Plaintiff No.2 was not ready with the evidence _ Appearance in such a circumstance will not amount to an appearance as contemplated under Order 17, Rule 2 _ Plaintiffs were justified in praying for adjournment _ Court erred in refusing to grant adjournment on the technical ground that one the plaintiffs was physically present in the Court and was not ready to proceed with the suit. (See para 22)

3) Dismissal of suit under Order 15 Rule 1 CPC _ Issues were framed by the trial Court prima facie after having found that the parties were at issue _ Not open for the trial Court to hold that parties were not at issue and to proceed to dismiss the suit under order 15, Rule 1 _ Judgment and decree of trial Court liable to be quashed and set aside. (See para 25)

Result : Appeal allowed.

Prashant Vagaskar and others Vs. Municipal Corporation of Greater Bombay and others FIRST APPEAL NO.1082 OF 2001 (19-10-2001) (V.C. DAGA, J.) LJSOFT 2002 (4) 37

Code of Civil Procedure, 1908 _ Order XXXVIII Rule 5 _ Attachment before judgment.

Attachment before judgment _ Harsh remedy which has to be granted only in exceptional circumstances _ Defendants disposed of the iron ore which they were restrained from disposing by the order of the Court by dubious means and are attempting to deprive the plaintiffs of valuable securities in the face of the order of injunction _ Defendants indicating their intention to defeat the claims of the plaintiffs in the suits which are likely to be decreed by the Court _ Order of attachment before judgment passed under Order 38 Rule 5 CPC justified. (See para 24, 25)

Result : Appeal from order dismissed.

V.G. Quenim & anr. Vs. Bandekar Brothers Pvt. Ltd. APPEAL FROM ORDER NO.57 OF 2001 (13-12-2001) (GOA BENCH) (A.S. AGUIAR, J.) LJSOFT 2002 (4) 73

Code of Civil Procedure, 1908 _ Section 80(1), 80(2), 99 _ Waiver of notice _ Deemed waiver.

1) Notice under section 80, Civil Procedure Code is capable of being waived _ If the notice is waived, the plaint need not be returned for compliance. (See para 11, 12)

2) Recovery of amount _ Plaintiff prayed for the grant of injunction together with an application for leave of the Court u/s 80(2) for dispensing with the notice u/s 80(1) CPC _ Suit was decreed but no order granting leave to institute the suit by dispensing with the notice u/s 80(1) CPC was passed _ Defendants never raised plea of want of urgency and the notice u/s 80 at any stage or in the appeal even at the time of arguments _ Held to be the deemed waiver on the part of the defendants _ Appellate Court erred in reversing the decree and remanded the case on the ground of absence of notice u/s 80(1). (See para 15, 16, 17)

3) Issuance of notice _ If there is a deemed waiver, the plea in that respect cannot be taken at the appellate stage, as it would cause serious prejudice to the plaintiff. (See para 19)

4) Application for leave of the Court u/s 80(2) for dispensing with the notice u/s 80(1) CPC _ Non-passing of any order on the application is not a refusal or a deemed refusal of leave. (See para 8)

Result : Appeal allowed.

Chandrashekhar Purushottam Rathi Vs. State of Maharashtra and another APPEAL FROM ORDER NO.71 OF 2000 (15/16-12-2000) (NAGPUR BENCH) (S.G. MAHAJAN, J.) LJSOFT 2002 (4) 40

Code of Criminal Procedure, 1973 _ Section 125 _ Maintenance to Muslim woman _ Mohammedan law.

1) Claim of maintenance by wife _ There has to be neglect or refusal to maintain _ Wife leaving the matrimonial home on her own not entitled to maintenance. (See para 8)

2) Maintenance to Muslim woman _ Claim of maintenance by second wife _ Offer made by the husband in view of the fact that the first wife was living with him, was itself a circumstance for her to refuse to live with her husband _ It is immaterial whether the aggrieved wife is the first or the second wife, for the purpose of claiming maintenance. (See para 31, 32)

3) Claim of maintenance by second wife _ Presence of the decree for restitution of conjugal rights against the wife _ Presence of another woman in his house as his wife or mistress is a valid ground to remain away from him _ Application by wife for maintenance u/s 125 Cr.P.C. cannot be rejected merely because the husband has obtained a decree for restitution of conjugal rights against her and she declines to comply with it. (See para 34, 35, 36)

Result : Revision application dismissed.

Shaikh Babbu s/o. Shaikh Suleman Vs. Rashida w/o. Shaikh Babbu & anr. CRIMINAL REVISION APPLICATION NO.160 OF 1996 (16-8-2001) (NAGPUR BENCH) (R.K. BATTA, J.) LJSOFT 2002 (4) 26

Code of Criminal Procedure, 1973 _ Section 125 _ Order of maintenance _ Abatement.

Order of maintenance _ Execution proceedings _ Death of husband of the petitioner No.1 _ Courts below erred in holding that the claim of the petitioners has abated _ Courts below failed to consider as to whether the estate of the deceased could have been burdened to the extent of the order of grant of maintenance was sought to be executed till the death of the husband of the petitioner or not _ Matter remanded back to trial Court. (See para 5)

Result : Petition allowed.

Halimabee Quari Abdul and others Vs. Abdul Ahad Bukhari deceased through L.Rs. and others CRIMINAL WRIT PETITION NO.120 OF 1994 (8-3-2001) (AURANGABAD BENCH) (R.M.S. KHANDEPARKAR, J.) LJSOFT 2002 (4) 44

Code of Criminal Procedure, 1973 _ Section 204(2), 204(3) _ Non-compliance of provisions of _ Offence u/s 85(e) r/w section 85(ii) of the Employees State Insurance Act.

1) Non supply of copy of the complaint along with the summons after the order of issue of process _ Magistrate should ensure the compliance of these provisions though it is directory in nature _ Non-compliance of section 204(3) does not vitiate the issue of process _ Copy of the complaint can be furnished to the accused before the proceedings actually starts. (See para 28)

2) Absence of filing of list of witness _ Non compliance of mandatory provisions of section 204(2) _ Question of prejudice is of paramount consideration in respect of breach of procedural provisions _ Stage of the proceedings is relevant to determine the prejudice, if any, caused to the accused _ Where the matter is at the initial stage, directions can be given to furnish the copy of list of witnesses before the proceedings actually commenced. (See para 29)

Result : Revision application dismissed.

Pramila Mahesh Shah Vs. Employees' State Insurance Corporation, Nagpur and another CRIMINAL REVISION APPLICATION NOS.122 AND 123 OF 2001 (15-10-2001) (NAGPUR BENCH) (R.K BATTA, J.) LJSOFT 2002 (4) 33

Code of Criminal Procedure, 1973 _ Section 397 _ Revision _ Limitation Act, 1963 _ Section 5, 29(2) _ Article 131 _ Condonation of delay.

1) Filing of Criminal Revision Application _ Delay of 19 days beyond the prescribed period of limitation _ Prescribed period of limitation for filing a Criminal Revision Application governed by Article 131 of Limitation Act _ No express provision excluding the application of section 5 of the Limitation Act _ Delay can be condoned on sufficient cause being shown _ Learned Additional Sessions Judge erred in holding that section 5 of the Limitation Act does not apply to revision petition _ Order quashed and set aside. (See para 7, 8, 15)

2) Proceedings u/s 125 Cr.P.C. for grant of maintenance _ Applicant contended that upon receipt of certified copy of the order same was handed it over to the clerk of the counsel and was misplaced in the office of his Advocate _ Cannot be said that the delay was due to negligence or inaction on the part of the applicant _ Delay condoned on imposing certain conditions. (See para 17)

Result : Application allowed.

Ramkrishna Jairam Damdar Vs. Savita w/o Ramkrishna Damdar and another CRIMINAL APPLICATION NO.317 OF 2001 (19-12-2001) (NAGPUR BENCH) (J.N. PATEL, J.) LJSOFT 2002 (4) 31

Code of Criminal Procedure, 1973 _ Section 438 _ Anticipatory bail _ Grant of _ Offence under section 302 r/w.S.34 of Indian Penal Code, 1860.

Deceased found dead in the well _ No material on record to connect the applicant with crime _ No evidence showing complicity of the applicant in the offence _ Anticipatory bail granted to the applicant. (See para 4)

Result : Application allowed.

Kamlabai w/o Surendra Jaiswal @ Zende Vs. State of Maharashtra through P.S.O. CRIMINAL APPLICATION NO. 1493 OF 2001 (6-11-2001) (R.K. BATTA, J.) LJSOFT 2002 (4) 17

Code of Criminal Procedure, 1973 _ Section 438 _ Anticipatory bail _ Grant of _ Offence under section 406, 409 r/w Sec.34 of Indian Penal Code, 1860.

1) Losses incurred by the Co-operative Spinning Mill _ Applicant Arvind Tidke was one of the Administrators of the Board for the period 14.06.1995 to 17.07.1995 and he had resigned on 17.07.1995 _ Applicant had assessed the financial affairs and found that the losses cannot be made up because of uncontrolled and inefficient management _ No serious opposition to grant of anticipatory bail of applicant _ Applicant Arvind Tidke granted anticipatory bail. (See para 25)

2) Losses incurred by the Co-operative Spinning Mill _ Administrators of the Board _ Losses on account of yam sale, permission to Nawalji Cot Spin to run the Sut Girni, use of SICOM subsidy against directions of the Director, Handloom, Power and Textile, on account of cotton seed sale, sale on credit contrary to the rules and purchase of computer _ Charges call for thorough investigation _ Very thin line between mismanagement and criminality _ Considering the magnitude and the nature of the transactions custodial interrogation of applicants Surendra Potey and Nilkanth Kukade essential _ Applicants Surendra Potey and Nilkanth Kukade cannot be released on anticipatory bail. (See para 28)

Result : Accordingly.

Surendra Gulabrao Potey Vs. State of Maharashtra CRIMINAL APPLICATION NO.1216 OF 2001 (25-10-2001) (NAGPUR BENCH) (R.K. BATTA, J.) LJSOFT 2002 (4) 22

Code of Criminal Procedure, 1973 _ Section 438 _ Anticipatory bail _ Grant of _ Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 _ Section 3, 18 _ Humiliation and insult.

Protection to the members of the scheduled castes and scheduled tribes _ Humiliation and insult caused to the complainant is an important criteria for consideration _ Prima facie case made out against the accused which would result in conviction if not rebutted _ Not a fit for grant of anticipatory bail. (See para 13, 14, 15, 16)

Result : Applications dismissed.

Dr. Sushil Indoria & ors. Vs. State of Maharashtra CRIMINAL APPLICATION NO. 3337 OF 2001 (12-10-2001) (J.G. CHITRE, J.) LJSOFT 2002 (4) 57

Companies Act, 1956 _ Section 303(2) _ Form 32-A _ Intimation and information to Registrar of Companies _ Maharashtra Land Revenue Code, 1966 _ Section 267 _ Recovery of revenue dues.

1) Resignation of Director _ Director of the public limited company or private limited company can tender his resignation unilaterally and without filling in form 32 _ Duty of the Company Secretary to fill-in form No.32 and give appropriate information to the Registrar of Companies. (See para 6)

2) Recovery of revenue dues from the Company _ Execution of RRC _ Necessary for the authority to give a due notice and also bound to give opportunity of hearing to the petitioner _ Without doing that, the authority is not legally competent to execute RRC by either attaching his personal and individual property or putting it to auction to his prejudice. (See para 7, 8)

Result : Rule made absolute.

Saumil Dilip Mehta Vs. State of Maharashtra and others WRIT PETITION NO.548 OF 2001 (18-10-2001) (J.G. CHITRE, J.P. DEVADHAR, JJ.) LJSOFT 2002 (4) 28

Companies Act, 1956 _ Section 391, 392, 393, 394 _ Scheme of arrangement by way of amalgamation/merger _ Participation in _ Right of creditor.

1) Scheme of amalgamation/ merger _ While considering any scheme of arrangement or compromise proposed u/s 391 to 394 of the Companies Act the Court is duty bound to consider the interests of all the creditors. (See para 14)

2) Scheme of amalgamation/ merger _ Applicant seeking a direction to convene a meeting of the equity share holders _ No direction is sought to convene a meeting of the creditors _ Arrangement does not contemplate extinction or reduction of liability to any creditor _ Creditors of the transferor company are not likely to be adversely affected _ Allowing the application meeting of the share holders is directed to be held and holding of meeting of the creditors dispense with. (See para 15, 16, 20)

3) Appearance of intervenor claiming to be a creditor _ No locus to be heard on an issue whether the meeting of the creditors should be convened or not _ Intervenor would be heard at the hearing of the petition for sanction of a scheme, if it satisfies the Court that it is a creditor. (See para 19)

Result : Application allowed.

ICICI Limited (In the matter of ICICI Bank Limited) COMPANY APPLICATION NO.606 OF 2001 (21-12-2001) (D.C. KARNIK, J.) LJSOFT 2002 (4) 50

Companies Act, 1956 _ Section 392 _ Scheme of demerger _ Sanction of _ Power of Company Court.

Scheme of demerger _ Approved by overwhelmingly majority of shareholders and unsecured creditors _ Scheme put before the Company Court for approval _ Company Court may approve it wholly, or with or without modification, or reject the same _ If the modification consists merely of deletion of certain Clauses which do not affect the rest of the Scheme then such Scheme minus the deleted Clauses need not be resubmitted for approval of the shareholders. (See para 16)

Result : Appeal dismissed.

Renuka Daltla Vs. Duphar Interfran Limited APPEAL NO.19 OF 2001 (24-4-2001) (B.N. SRIKRISHNA, A.B. NAIK, J.) LJSOFT 2002 (4) 55

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 _ Section 3(1) _ Preventive detention _ Non-placement of vital documents before the Detaining Authority _ Constitution of India, 1950 _ Article 22(5), 226.

Detenu was arrested on 18.6.2001 and case u/s 112 of Customs Act was registered _ On 5.10.2001, on the basis of written complaint by D.R.I. a case u/s 489(B)(c) r/w section 120-B I.P.C. was registered against the detenu _ Said complaint and F.I.R. were vital documents _ Failure to place the same before the Detaining Authority and non-consideration of the same by the Detaining Authority would vitiate the detention order _ Non-supply of the copies to detenu would impair his fundamental right of making a representation at the earliest opportunity against the detention order _ Detention order quashed and set aside. (See para 10)

Result : Petition allowed.

Shahnaz Javed Abdul Aziz Shaikh Vs. State of Maharashtra, through the Secretary to the Government of Maharashtra, Home Department (Special) & ors. CRIMINAL WRIT PETITION NO.1610 OF 2001 (28-1-2002) (VISHNU SAHAI, S.K. SHAH, JJ.) LJSOFT 2002 (4) 60

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 _ Section 3(1) _ Preventive detention _ Delay in supply of documents _ Constitution of India, 1950 _ Article 22(5), 226.

Detention order and grounds of detention served on detenu on 10.9.2001 _ Documents on which the grounds were founded were served after two days on 12.9.2001 _ Documents on which the grounds of detention are founded would also constitute the grounds of detention _ Grounds of detention have to be served pari pasu alongwith the documents on which the grounds are founded _ Cannot be said that grounds were served on the detenu within the meaning of Article 22(5) of the Constitution of India _ Fundamental right of being communicated by the Detaining Authority guaranteed by the first facet of Article 22(5) of the Constitution of India violated _ Second facet of fundamental right of detenu of making a representation at the earliest opportunity guaranteed by Article 22(5) of the Constitution of India also violated _ Detention order quashed and set aside. (See para 9A)

Result : Petition allowed.

Jyoti Rajeev Agarwal Vs. Union of India, Through the Secretary to the Government of India, Ministry of Finance Department & ORS. CRIMINAL WRIT PETITION NO.1433 OF 2001 (23-1-2002) (VISHNU SAHAI, S.K. SHAH, JJ.) LJSOFT 2002 (4) 62

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 _ Section 3(1) _ Preventive detention _ Delay in execution of Detention Order.

Detention order dated 23.6.2000 served on detenu on 4.10.2001 _ No efforts made by detaining authority to search the detenu in Mumbai on the two known addresses _ Detenu was released on bail on the condition of not to leave the jurisdiction of Mumbai _ Tracing detenu on his permanent address in Kerala were not at all sincere _ Delay of 16 months in execution of the order not satisfactorily explained and therefore there is non-application of mind on the part of the detaining authority _ Detention order liable to be quashed and set aside. (See para 11)

Result : Petition allowed.

Basheer A. Abdulla Vs. State of Maharashtra & ors. CRIMINAL WRIT PETITION NO.1614 OF 2001 (5-4-2002) (D.G.DESHPANDE, S.K.SHAH, JJ.) LJSOFT (URC) 2002 (4) 111

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 _ Section 3(1) _ Preventive detention _ Non-placement of vital documents before detaining authority _ Constitution of India, 1950 _ Article 22(5), 226.

Issuance of Detention order _ Prior to that detention order issued against Iqbal Mehra and Kiran Vora was revoked in pursuance of the opinion of the Advisory Board _ Cases of said two detenus and that of the petitioners were same, involving same incidents and same transactions _ Necessary for the State Government to place before the detaining authority the opinion of the Advisory Board in favour of said two detenus _ Non-placement of the vital material before the detaining authority _ Detention orders liable to be quashed and set aside. (See para 12)

Result : Petitions allowed.

Ulka Shah Vs. Union of India & ors. CRIMINAL WRIT PETITION NO. 1362 OF 2001 (2-4-2002) (D. G. DESHPANDE, S. K. SHAH, JJ.) LJSOFT (URC) 2002 (4) 112

Constitution of India, 1950 _ Article 12, 226 _ Automotive Research Association of India _ Whether authority or agency or instrumentality of State _ Writ jurisdiction _ Complaint under MRTU and PULP Act.

Automotive Research Association of India _ Independent and autonomous body which is managed and administered by its Council _ Central Government cannot be said to have deep and pervasive control _ Central Government not the sole financial source _ Objects of the Association as reflected from Memorandum of Association, the activities undertaken by it are not the Government or public functions _ Respondent No.1-Association cannot be brought within the sweep of Article 12 as it is neither an authority nor instrumentality or agency of the State and therefore, not amenable to writ jurisdiction. (See para 13, 15, 19)

Result : Petition dismissed.

Nandkumar Nivrutti Baptiwale Vs. Automotive Research Association of India WRIT PETITION NO.3607 OF 2001 (11-1-2002) (R.M. LODHA, S.A. BOBDE JJ.) LJSOFT 2002 (4) 41

Constitution of India, 1950 _ Article 14, 226 _ Malpractices in examination _ Breach of instructions.

Students guilty of writing their roll numbers on the answer sheets in a place other then the place meant for the purpose _ Explanation given by student whether genuine not considered _ Board contended that scope of the inquiry is only limited to seeing whether the student has himself written the roll number _ Such an inquiry would not be just and fair _ Necessary for the Board to consider the explanation of the students and the order imposing any punishment must contain reasons for rejecting the explanation _ Enquiry could be said to have been properly conducted _ Orders cancelling the performance of the petitioners set aside. (See para 15, 16, 17)

Result : Petitions allowed.

Pashmeen N. Ghia Vs. Maharashtra State Secondary & Higher Secondary Board & anr. WRIT PETITION NO.1231 OF 2001 (22-6-2001) (A.P.SHAH, S.A. BOBDE, JJ.) LJSOFT 2002 (4) 85

Constitution of India, 1950 _ Article 19, 21, 300A _ Public Interest Litigation _ Coastal Area Classification and Development Regulations CRZ-III (iii) _ Dwelling Units _ Company Guest House _ Scope of Judicial Review.

Construction of Company Guest House in the CRZ-III Zone _ Petitioners contended that Company Guest House does not fall within the category of dwelling unit as understood under CRZ-III Notification _ Construction is not for commercial purpose but for the residence, whether it be of the employees or the Chairman _ Can be considered as a dwelling house under CRZ-III(iii) _ Plans have been sanctioned and this aspect has been considered by the authorities concerned _ Permission has been granted after inspection of the site _ No injury to Public Interest nor any prejudice to the environment _ Not open to the Petitioners to contend that the construction is in violation of the CRZ Regulations and requires to be demolished. (See para 21, 25)

Result : Petition dismissed.

Goa Foundation Vs. United Breweries & ors. WRIT PETITION NO.414 OF 1998 (11-7-2001) (GOA BENCH) (SMT. K.K. BAAM, A.S. AGUIAR, JJ.) LJSOFT 2002 (4) 66

Constitution of India, 1950 _ Article 21, 47, 48-A _ Public interest petition _ Environment Protection and Pollution Control _ Vehicular pollution _ Auto emission from motor vehicles _ Control of _ Usage of alternative fuel _ EURO- II norms _ Draft Action Plan _ Phasing out of vehicles.

1) Vehicular pollution _ Directions regarding phasing out and/ or conversion into CNG/LPG _ Directions for safeguarding the health of the people, a right provided and protected by Article 21 of the Constitution of India _ Norms prescribed under Motor Vehicles Act are in addition to and not in derogation of Environment Protection Act _ Directions may even override the provisions of Motor Vehicles Act, if they militate against the Constitutional mandate under Article 21. (See para 15)

2) Totally phasing out and scrapping of Premier 137-D Model taxis by 1st March, 2002 unless converted to cleaner fuel _ Model 137-D emit a very high level of smoke and pollutants and Expert Committee had categorically recommended that they should be phased out _ Directions of completely phasing out Premier 137-D taxis unless converted to CNG/LPG cannot be said to be unreasonable, harsh or erroneous _ However 137-D taxis allowed to ply upto 30th April, 2002 and outer limit for conversion upto 31st May, 2002. (See para 13, 20)

3) Phasing out of three wheelers over the age of 10 years unless converted to run on CNG / LPG _ Owners desirous of getting converted into CNG/LPG to register with Transport Authorities on or before 30th April, 2002 and shall be allowed to ply upto 30th June, 2002 _ Outer limit for said conversion is upto 31st August, 2002. (See para 21)

Result : Accordingly.

Smoke Affected Residents Forum Vs. Municipal Corporation of Greater Mumbai and others NOTICE OF MOTION NO.33 OF 2002 IN WRIT PETITION NO.1762 OF 1999 (10-4-2002) (C.K.THAKKER, C.J., S. RADHAKRISHNAN, J.) LJSOFT (URC) 2002 (4) 104

Contempt of Courts Act, 1971 _ Allegations against Judge alleging bias.

Petitioner is a Professor in Economics _ Filed contempt proceedings due to non-payment of back-wages _ Pending proceeding petitioner gave a writing making serious allegation against the Court with regard to the taking up of the contempt petition for final hearing and also stating that she wanted to move Supreme Court on ground of bias _ Show-cause notice as to why she should not be punished for committing the Contempt of Court issued suo motu by the Court _ No regret expressed by her in her affidavit for her conduct of making a personal allegations against the learned Judge _ Tenor of the affirmation made in the affidavit is to justify the conduct of the petitioner _ Petitioner held to be guilty of committing Contempt of the Court. (See para 7, 8, 9)

Result : Accordingly.

Nini Gulla (Prof. Ms.) Vs. Vishwanath Poddar & Ors. SHOW CAUSE NOTICE NO. 125 OF 2001 (21-1-2002) (J.A. PATIL, J.) LJSOFT 2002 (4) 2

Corporation Bank Officers Employees (Discipline & Appeal) Regulations, 1982 _ Regulation 6(18) _ Disciplinary proceeding _ Principles of natural justice.

Petitioner was working as Manager with respondent-Bank _ Charged for misconduct _ Disciplinary Authority disagreed with findings of not guilty recorded by Enquiry Officer and inflicted the major punishment, viz. penalty of dismissal _ Enquiry was concluded without allowing the petitioner to make his oral submission or to present his written brief _ Petitioner was not given an opportunity when Disciplinary Authority disagreed with Enquiry Officer _ Dismissal order vitiated _ Matter remanded to the enquiry officer. (See para 7)

Result : Petition allowed.

Gopalkrishna Vaman Kamath Vs. Corporation Bank WRIT PETITION NO. 319 OF 1989 (11-2-2002) (P.S. PATANKAR, D.B. BHOSALE, JJ.) LJSOFT 2002 (4) 6

Customs Act, 1962 _ Section 27-A _ Payment of refund _ Delay _ Interest _ Constitution of India, 1950 _ Article 226.

Refund the amount as per order of the CEGAT _ Petitioner was required to move High Court for implementation of the order of the Tribunal _ Claim for refund not in dispute _ Refund was paid during the pendency of the petition _ Whether petitioner is entitled to claim interest for delayed payment of refund amount? (Yes) (See para 7)

Result : Petition allowed.

Shri Balaji Automobiles Vs. Union of India and others WRIT PETITION NO.2567 OF 2001 (14-1-2002) (V.C. DAGA, J. P. DEVDHAR, JJ.) LJSOFT 2002 (4) 47

Electricity Act, 1910 _ Section 26(6) _ Electrical meter _ Tampering _ Fraud _ Constitution of India, 1950 _ Article 226.

1) Defective meter _ In the absence of fraud Register of the meter is to be conclusive proof of the amount or quantity of electrical energy supplied _ In a case involving fraud, the supplier of electricity cannot be confronted with the conclusive proof which attaches to an electrical meter. (See para 5)

2) Successive electrical meters installed at the premises of the original Petitioner tampered with _ Clear case involving fraud _ Petitioner not entitled to any relief in these proceedings under Article 226. (See para 6)

Result : Petition dismissed.

Dr. Srikant D. Salunke & Ors. Vs. Bombay Electric Supply and Transport WRIT PETITION NO.110 OF 1996 (7/8-6-2001) (DR. D.Y. CHANDRACHUD, J.) LJSOFT 2002 (4) 93

Employees' State Insurance Act, 1948 _ Section 85(a) _ Non- payment of ESI contribution _ Indian Penal Code, 1860 _ Section 405 _ Criminal breach of trust _ Economic offence _ Constitution of India, 1950 _ Article 21 _ Right of speedy trial.

Failure to remit the periodical contribution to the ESI Corporation _ More than a period of two years has been lapsed after taking cognizance of the complaint and trial has not been commenced _ Failure to remit the amount to the ESI Corporation amount to an economic offence as also criminal breach of trust which are excluded from operation of 'Common Cause' judgment _ No justification for learned Magistrate to discharge the accused. (See para 5, 13)

Result : Revision application allowed.

Regional Director, Employees' State Insurance Corporation Vs. Madhukar S. Jadhav & Ors. CRIMINAL REVISION APPLICATION NO. 265 OF 2000 (19-6-2001) (T.K. CHANDRASHEKHARA DAS, J.) LJSOFT 2002 (4) 1

Goa Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968 _ Section 22(2)(b)(ii) _ Eviction proceedings _ Change of user.

Eviction proceedings _ Petitioner contended that premises was leased for running the shop for sale of paints, hardware, steel, construction materials and cement and the Respondent changed the user of the premises and used the premises as a godown _ Lease agreement has to be treated as the basis to decide the intention of the parties _ In the Lease Deed the premises is described not only as a shop, but even as room _ When the wider term 'room' is used time and again for the description of the premises, then, the meaning cannot be restricted by describing the premises only as a shop _ Petitioner failed to prove that there was change of user. (See para 15, 16, 18)

Result : Petition dismissed.

Armando J. B. Mascarenhas Vs. Sunitabai Somnath Dhungat & ors. WRIT PETITION NO.389 OF 1997 (19-10-2001) (GOA BENCH) (V.K. BARDE, J.) LJSOFT 2002 (4) 72

Goa, Daman and Diu (Protection from Eviction) Act, 1975 _ Section 5, 6 _ Threatened wrongful possession _ Interim mandatory injunction _ Right to enjoy supply of electric power or water or any customary easement.

Respondent claiming his right as a mundkar under Section 8A of Mundkar Act _ Petitioner constructed a compound wall blocking the access of the respondent to the drinking water well and the said facility of having drinking water is cut off _ It is not necessary to wait till completion of enquiry in such cases _ Authorities rightly granted the interim mandatory injunction. (See para 3, 4)

Result : Petition dismissed.

Pedro Gomes Viegas Vs. Urmila Laxman Narvekar & ors. WRIT PETITION NO.306 OF 1999 (20-9-2001) (GOA BENCH) (P.S. PATANKAR, J.) LJSOFT 2002 (4) 76

Goa, Daman and Diu Agricultural Tenancy Act, 1964 _ Section 8-A, 2(13) _ Tenant _ Permanent injunction.

Respondent No.1 claimed to be the tenant of the land and prayed for permanent injunction _ Proof of tenancy _ Petitioner contended that Respondent is distilling the liquor and has not produced the licences required under the Excise Act _ Can be concluded that respondent is not in possession of land _ Further contended that Respondent No.1 has not produced lease deed _ Considering the definition of a "lease' contained in Section 2(13) of the Tenancy Act it is not necessary to have written lease. (See para 4, 5)

Result : Petition dismissed.

Ravindra H. Bhandari & anr. Vs. Surya Jeno Mashelkar & ors. WRIT PETITION NO.214 OF 1996 (31-8-2001) (GOA BENCH) (P.S. PATANKAR, J.) LJSOFT 2002 (4) 71

Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968 _ Section 21 r/w Sec.22(2)(g) _ Eviction proceedings _ Denial of the title of the landlord _ Goa, Daman and Diu Mundkar (Protection from Eviction) Act, 1975 _ Section 8-A.

Eviction proceedings _ Petitioners filed an application under Section 8A Mundkar Act contending that they are mundkars of the house and protected under the said Act _ Whether claiming of a right as mundkar under the Mundkar Act in respect of the house amount to denial of title of the landlord within the meaning of Section 21 read with Section 22(1)(g) of the Rent Act? (No) (See para 8, 13)

Result : Petition allowed.

Safiabi w/o Shaikh Abdul Razak & ors. Vs. Delfina Gomes & ors. WRIT PETITION NO.96 OF 1998 (20-9-2001) (GOA BENCH) (P.S. PATANKAR, J.) LJSOFT 2002 (4) 74

Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968 _ Section 22(2)(b)(i) _ Sub-letting.

Eviction proceedings _ Premises given for conducting tailoring business _ Suit for eviction on the ground of sub-letting _ Landlord has to establish two things viz. (i) that there was a transfer of exclusive possession of the premises to the sub-tenant; and (ii) that the transfer of possession was for consideration _ No discussion or finding on the second aspect i.e. the transfer should be for consideration _ Appeal remanded to the Tribunal for fresh hearing on merits. (See para 3, 4, 5)

Result : Accordingly.

Caetano Luis (since deceased) represented by his legal heirs Vs. Oswald Antao, s/o late Pedro Francisco Antao & ors. WRIT PETITION NO.57 OF 1998 (14-9-2001) (GOA BENCH) (P.S. PATANKAR, J.) LJSOFT 2002 (4) 75

Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 _ Section 32(1) _ Constitution of India, 1950 _ Article 226.

Appeal filed before the Collector against the decision of the Mamlatdar given under Section 32(2) _ Whether the Administrative Tribunal was right in holding that the appeal was not maintainable? (No) (See para 1, 5)

Result : Petition allowed.

Teresinha Coelho & ors. Vs. Dr. Inacio Pio Jesis de Sa WRIT PETITION NO.310 OF 1997 (14-9-2001) (GOA BENCH) (P.S. PATANKAR, J.) LJSOFT 2002 (4) 80

Hindu Marriage Act, 1955 _ Section 9 _ Restitution of Conjugal Rights by husband.

Decree passed in favour of husband _ Husband filed divorce petition u/s. 13(1A)(ii) on basis of RCR _ Wife pleaded in divorce petition husband is guilty for not performing for Restitution of Conjugal Right _ Contention rejected _ Wife filed appeal under Article 136 of Constitution of India _ High Court judgment correct, no interference required.

Result: Appeal dismissed.

Anjula Verma Vs. Sudhir Verma CIVIL APPEAL NO.6224 OF 2000 (7-3-2002) (SC) (UMESH C. BANERJEE, K.G. BALAKRISHNAN, JJ.) LJSOFT (SC) 2002 (4) 103

Income Tax Act, 1961 _ Chapter XIX-A _ Settlement Commission _ Scope of powers & jurisdiction _ Whether, the settlement Commission gets complete role in total substitution of other authorities, and if yes, to what extent and purpose? _ Question of general importance, referred to a larger Bench. (See para 14)

Result: Accordingly.

Commissioner of Income Tax, Mumbai City-XIII, Mumbai Vs. M/s. Damani Brothers CIVIL APPEAL NO.7248 OF 1999 (11-2-2002) (SC) (N. SANTOSH HEGDE, DORAISWAMY RAJU, JJ.) LJSOFT (SC) 2002 (4) 35

Income Tax Act, 1961 _ Section 143 _ Assessment _ Ex-parte order _ Constitution of India, 1950 _ Article 226.

Petitioners selected for scrutiny and notice was issued to them _ Petitioners contended that they sought for the production of the documents seized by Sales Tax Department in the raid but the request was not granted _ Further contended that orders passed without hearing them are ex-parte orders _ Petitioners were granted opportunities for obtaining authenticated copies of record but they did not do any thing _ Petitioners could have summoned concerned person to attend the office with documents to be produced _ Theory of raid by Sales Tax Department unbelievable _ Petitioners have not come to the Court with clean hands _ Orders cannot be treated as ex-parte. (See para 12, 13)

Result : Petition dismissed.

Simplex Enterprises & Ors. Vs. Union of India & Ors. WRIT PETITION NO.692 OF 2001 (24-10-2001) (J.G. CHITRE, J.P. DEVADHAR, JJ.) LJSOFT 2002 (4) 89

Indian Divorce Act, 1869 _ Section 10 _ Dissolution of marriage _ Cruelty.

Appellant-wife was Hindu by birth and got married as per Christian religious rites _ Petition for divorce by wife on the ground of cruelty _ Respondent had kept himself away physically from the Appellant and there was no conjugal life between the two _ Appellant placed sufficient material on record through her affidavit as to how the Respondent was treating her with cruelty and keeping away from her _ Respondent did not care to contest the petition _ Appellant-wife entitled to a decree of divorce. (See para 11)

Result : Appeal allowed.

Asha Gomes Vs. Arthur Gomes FAMILY COURT APPEAL NO.90 OF 2001 (18-2-2002) (H.L. GOKHALE, S.J. VAZIFDAR, JJ.) LJSOFT 2002 (4) 58

Indian Penal Code, 1860 _ Section 100, 304(II) _ Appeal against conviction _ Right of self defence _ Quantum of sentence.

Deceased had lifted a stone and was about to hit when accused used the knife and gave a blow on the stomach _ No evidence regarding the size and weight of the stone, distance between the parties and whether from the gesture of lifting of the stone, anybody could apprehend that attack by stone would result in death or grevious hurt _ No intention can be attributed to accused _ Accused acted in self defence but exceeded the right of self defence _ Sentence reduced to two years and fine enhanced to Rs.10,000/-, in default R.I. for six months. (See para 8, 9, 10)

Result : Appeal partly allowed.

Shivaji Laxman Shinde Vs. State of Maharashtra & anr. CRIMINAL APPEAL NO.631 OF 1992 (30-1-2002) (D.G. DESHPANDE, J.) LJSOFT 2002 (4) 20

Indian Penal Code, 1860 _ Section 174 _ Non-attendance in obedience to an order from public servant _ Customs Act, 1962 _ Section 108 _ Appeal against acquittal _ Return of seized property.

1) Prosecution for not attending in person _ No prayer on the part of the accused in writing or orally for return of the seized property under the Customs Act _ Court was not at all called by to pass any order in respect of the property _ Order of return of seized property passed in excess of the jurisdiction and is quashed and set aside. (See para 7)

2) Summons to appear in person _ Section 108 empowers all the gazetted officers or any gazetted officer to issue summon _ Whether the officer had powers to investigate or not is totally irrelevant. (See para 13, 14)

3) Summonses issued to accused to appear in person _ Not attending in person as required by Section 108 of the Customs Act _ Specific direction to respondent No.2 to remain present _ Accused/ respondent cannot escape from his liabilities by contending that he had sent his representative or had power to send his representative. (See para 15, 16)

Result : Appeal allowed.

Union of India Vs. S.P. Goyal & anr. CRIMINAL APPEAL NO.837 OF 2001 (25-1-2002) (D.G. DESHPANDE, J.) LJSOFT 2002 (4) 24

Indian Penal Code, 1860 _ Section 302 _ Appeal against conviction _ Murder _ Plea of alibi _ Falsity of defence.

Appellant charged for murder of his wife by burning _ Deceased had died due her burn injuries _ Dying declaration found reliable and trustworthy _ Shirt which was attached from the person of the appellant was smelling of kerosene _ Appellant had taken a plea of alibi and examined himself _ Appellant had stated that he was informed by his parents that while preparing food on stove, saree of deceased caught fire _ His parents were not examined in defence _ Accident theory not proved by the appellant _ Falsity of defence is an additional link in culpability of the culprit _ Conviction confirmed. (See para 7, 8, 9, 10)

Result : Appeal dismissed.

Rambhau Dharma Patil Vs. State of Maharashtra CRIMINAL APPEAL NO.470 OF 1998 (16-1-2002) (R.K. BATTA, F.I. REBELLO, JJ.) LJSOFT 2002 (4) 16

Indian Penal Code, 1860 _ Section 302 _ Murder _ Appeal against conviction _ Evidence Act, 1872 _ Section 24, 30, 154 _ Value and use of the First Information Report.

1) First Information Report _ Not substantive evidence, but may be used to corroborate the informant u/s 157 of the Evidence Act or to contradict him u/s 145, if the informant is called as witness _ Confessional first information report by the accused to a police officer cannot be made against him in view of S.25 of the Evidence Act. (See para 8)

2) Appellant charged for committing murder of his wife _ No evidence to show the complicity of the appellant-accused in the crime except for the First Information Report lodged by the accused _ Conviction and sentences imposed by the trial Court cannot be sustained. (See para 9)

Result : Appeal allowed.

Bapurao Irbhan Tayade Vs. State of Maharashtra CRIMINAL APPEAL NO.265 OF 1996 (31-10-2001) (NAGPUR BENCH) (J.N.PATEL, S.K.SHAH, JJ.) LJSOFT 2002 (4) 18

Indian Penal Code, 1860 _ Section 376, 363 _ Rape _ Appeal against conviction.

Prosecutrix aged 17 years was in love with the Appellant and had voluntarily left the house of her father _ Prosecutrix had willingly gone to the Railway Station and to the village where the Appellant was residing _ No evidence apart from the solitary statement of Prosecutrix that the Appellant had sexual intercourse against her will _ Conviction and sentence of the Appellant quashed and set aside. (See para 16, 19, 20)

Result : Appeal allowed.

Palli Venkateswar Vs. State CRIMINAL APPEAL NO.7 OF 2001 (24-10-2001) (GOA BENCH) (P.V. HARDAS, J.) LJSOFT 2002 (4) 25

Indian Penal Code, 1860 _ Section 380 _ Theft _ Appeal against acquittal _ Evidence Act, 1872 _ Section 9 _ Test identification parade.

Theft of two gold chains _ Identification of accused _ Absence of a test identification parade _ Identification of the photograph of Respondent-accused by witnesses _ No contemporaneous document, like the panchanama regarding the identification of the photograph of the Respondent _ Said photograph not produced in the Court _ Identification in Court in the absence of a test identification parade is a weak piece of evidence _ No other corroborative evidence of the nature of seizure of ornaments _ Learned Trial Judge was justified in acquitting the Respondent. (See para 10)

Result : Appeal dismissed.

State of Goa Vs. Carlos Cardozo CRIMINAL APPEAL NO.59 OF 2000 (30-10-2001) (GOA BENCH) (P.V. HARDAS, J.) LJSOFT 2002 (4) 23

Industrial Disputes Act, 1947 _ Section 10(1) _ Reference _ Amendment.

Industrial dispute raised by respondent union and referred only 33 workmen under transfer to Resource Management Centre _ After the order of reference two subsequent batches of workmen came to be transferred _ Union moved an amendment before the tribunal to include in their statement of claim by addition of workmen which were transferred after the order of reference _ Cannot be said that by adding the names, the union has raised a fresh industrial dispute _ No illegality or infirmity in order of Tribunal allowing the said amendment. (See para 6, 7)

Result : Petition dismissed.

Standard Chartered Grindlays Bank Ltd. Vs. Grindlays Bank Employees Union & Anr. WRIT PETITION NO. 359 OF 2002 (4-3-2002) (R.J. KOCHAR, J.) LJSOFT 2002 (4) 8

Industrial Disputes Act, 1947 _ Section 10(1), 18(3) _ Reference _ Impleading of party.

Reference _ Employer disputed the employer employee relationship and submitted that he was in the personal employment of their President/ Chair-Person/ Managing Director _ On application, Labour Court directed to implead President as party _ Order of Labour Court without jurisdiction as it has the effect of amending the Reference itself. (See para 4)

Result : Petition allowed.

Alfa Laval (India) Ltd. Vs. Karbhari Devji Waghmare & Ors. WRIT PETITION NO. 4316 OF 2001 (7-3-2002) (F.I. REBELLO, J.) LJSOFT 2002 (4) 9

Industrial Disputes Act, 1947 _ Section 11-A _ Unauthorised absence _ Termination of service _ Reinstatement _ Back wages.

Respondent is Bus Conductor employed by the Petitioner-Corporation _ Respondent was suffering from tuberculosis (T.B.) _ Termination of services on the ground of unauthorised absence _ Labour Court held termination to be illegal and directed his reinstatement with full back wages _ Petitioner challenging the award of back wages _ Petitioner Corporation has not discharged its initial burden of proving why the normal relief of full back wages should not be granted to respondent on his reinstatement _ Labour Court rightly awarded reinstatement with full backwages and continuity of service. (See para 1)

Result : Petition dismissed.

Maharashtra State Road Transport Corporation & Anr. Vs. Namdeo Ramchandra Musale WRIT PETITION NO. 2007 OF 1996 (7-3-2002) (R.J. KOCHAR, J.) LJSOFT 2002 (4) 10

Industrial Disputes Act, 1947 _ Section 12(5), 10(1) _ Termination of services _ Reference _ Delay _ Limitation Act, 1963 _ Article 137.

Proceedings under Industrial Disputes Act _ Provisions of Article 137 of the Schedule to the Limitation Act not applicable _ Relief cannot be denied to the workmen merely on the ground of delay _ Question that if prejudice is caused to petitioners because of the delay, then how the relief should be moulded, are to be decided by the Industrial Tribunal while considering the matter at the final stage. (See para 3, 6, 7)

Result : Petition dismissed.

Micro Interconnexion Pvt. Ltd. Vs. R.S. Mardolkar & ors. WRIT PETITION NO.424 OF 1998 (19-10-2001) (GOA BENCH) (V.K. BARDE, J.) LJSOFT 2002 (4) 77

Industrial Disputes Act, 1947 _ Section 2(j), 2(s), 11-A _ Industry _ Workman _ Charitable institution _ Part time employee _ Termination of services.

1) Charitable Institution providing residential accommodation for women who are destitute, those who are and unable to look after themselves and for working women _ Whether industry _ Absence of profit motive is not a relevant consideration _ Case of existence of systematic activity organised by co-operation between employer and employee _ Petitioner fulfil the requirement of the expression 'industry' u/s 2(j) of I.D. Act. (See para 10)

2) Charitable Institution _ Part time employee employed to perform manual labour _ Exclusivity of employment not a necessary requirement of the definition u/s 2(s) _ Even a part time employee is a workman within the meaning of section 2(s). (See para 11, 12)

3) Part time employee absented herself from work without applying for maternity leave _ Termination of services without following any safeguard and without conducting any enquiry _ Termination of service wholly improper and contrary to the law. (See para 14)

Result : Petition dismissed.

Ali Saints Home Vs. Chhaya P. Pardeshi & anr. WRIT PETITION NO. 554 OF 1995 (7-6-2001) (DR. D.Y. CHANDRACHUD, J.) LJSOFT 2002 (4) 61

Industrial Disputes Act, 1947 _ Section 25-F, 2(oo)(c) _ Casual workman _ Termination of services _ Continued ill-health.

1) Respondent No.1 employed as a casual worker by Central Railway _ Considered for regularisation _ Upon medical examination not found medically fit for permanent absorption _ Would not ipso facto lead to the conclusion that his services as a casual workman came to be terminated on the ground of continued ill-health _ No evidence of continued ill-health of the workman _ Termination of services unlawfully without due compliance with the provisions of Section 25-F. (See 8, 9)

2) Termination of service on the ground of continued ill-health _ Would not amount to retrenchment within the meaning of Section 2(oo) (See para 7)

Result : Petition dismissed.

Union of India, through General Manager, Central Railway Vs. Subhash P. Dunagu & ors. WRIT PETITION NO.555 OF 1998 (31-7-2001) (DR. D.Y. CHANDRACHUD, J.) LJSOFT 2002 (4) 59

Industrial Disputes Act, 1947 _ Section 33-C(2) _ Claim of wages _ Ex-parte order _ Stay of recovery proceedings.

Application filed u/s 33-C(2) by respondent-workmen claiming minimum wages, overtime, wages for the weekly-off, leave wages and bonus _ Petitioners refused to accept the service and Labour Court directed the matter to proceed ex-parte _ Certificate for Recovery issued u/s 33-C(4) _ Application filed by petitioner for stay of the Certificate and the ex-parte order _ Labour Court had jurisdiction to stay the recovery proceedings subject to certain terms and conditions. (See para 9)

Result : Petition dismissed.

Heena Restaurant & Ors. Vs. Madhukar M. Dewadiga & Ors. WRIT PETITION NO. 1912 OF 2001 (26-2-2002) (MRS. NISHITA MHATRE, J.) LJSOFT 2002 (4) 4

Industrial Disputes Act, 1947 _ Section 36(2) _ Representation by lawyer.

Company sought to be represented by Shri C.V. Pavaskar _ Objection raised by Respondent union on the ground that they are legal Practitioners _ Shri C.V. Pavaskar is described as Central Executive Committee Member of the Employers Federation of India of which the Company is a member _ Such person not debarred from representing employer merely because he has obtained a law degree or has practiced as an Advocate _ Expression officer in Section 36(2) would mean those holding office in the Association and that would include Executive Committee of the Association or its office bearers _ Learned single Judge rightly held that Shri Pavaskar entitled to represent the petitioner company. (See para 5, 6, 10, 12 )

Result : Appeal dismissed.

Associated Cement Staff Union Vs. Associated Cement Companies Limited and others APPEAL NO.1027 OF 2001 (9-11-2001) (A.P. SHAH, S.A. BOBDE, JJ. ) LJSOFT 2002 (4) 42

Land Acquisition Act, 1894 _ Section 11(1) _ Draft award _ Approval of.

1) Draft award _ Commissioner had considered it and placed his endorsement at the bottom approving the issuance of the memorandum of approval _ Award made after taking into consideration these observations _ Note along with the endorsement by the Commissioner constituted the approval _ Cannot be contended that the approval of the Commissioner was not obtained. (See para 10)

2) Acquisition of land for the purpose of telephone stores _ Contended that entire adjoining area is specified as a residential zone _ Provision of telephone stores cannot be said to be contrary to residential zone _ Purpose has been specified all throughout in the notifications _ Cannot be said to be one where land acquired for one public purpose is being used for another purpose nor can the use be said to be conflicting with the Zonal Development Plan _ Telephone store considered as not an activity alien to the residential purpose. (See para 12)

3) Acquisition of land _ Grievance has to be raised within a reasonable time _ Notifications u/s 4 and 6 issued in October 1981 and August 1983 _ Petition filed in October 1986 _ Challenges to sections 4 and 6 notifications have to be taken at the latest within a reasonable time after section 6 notification _ Gross delay in filing the petition. (See para 13)

Result : Petition dismissed.

Himalayan Tiles & Marbles Pvt. Ltd. Vs. Union of India & Ors. WRIT PETITION NO.2702 OF 1986 (19-6-2001) (H.L. GOKHALE, D.B. BHOSALE, JJ.) LJSOFT 2002 (4) 91

Land Acquisition Act, 1894 _ Section 4,18 _ Dispute pertaining to area of land acquired.

1) Acquisition of land _ Claim for compensation for the additional area of 3971 square metres _ No compensation paid on the alleged ground that the said land is Government land _ Reliance was placed on Section 14 of the Land Revenue Code which raises a presumption that all lands unless proved to belong to private persons are Government land _ Government cannot shift the burden on the appellants by contending that it was for the appellants to show the area of land in their possession _ Respondents have not produced any evidence to show that the land is Government land _ Appellants entitled for the payment of compensation for the said land. (See para 20, 27)

2) Notification under Section 6 only mentions the boundaries of the plot but not the area of the plot _ Area of the land was more or less ascertained on the basis of approximation based on the boundaries and the boundaries were determinative of the area of the said plot in the event of any discrepancy in the area of the plot under acquisition. (See para 22)

Result : Appeal allowed.

Leonor Seruca de Quadros & Anr. Vs. Land Acquisition Officer FIRST APPEAL NO.108 OF 1988 (8/9-11-2001) (GOA BENCH) (A.S. AGUIAR, J.) LJSOFT 2002 (4) 70

Law of Divorce, 1910 _ Article 4 _ Civil Procedure Code, 1910 (Portuguese) _ Article 247, 260 _ Divorce _ Incurable disease _ Non-verification of _ Maintainability of suit.

Suit for divorce on the ground of contagious and incurable disease, namely, leprosy _ Non-verification of nature and characteristics of the disease by way of previous examination in terms of Articles 247 and 260 of Code of Civil Procedure _ Non compliance of the mandatory provisions of Para 4 of Article 4 of the Law of Divorce _ Suit not maintainable. (See para 7, 8, 9)

Result : Appeal dismissed.

Antonio Filipe Faleiro Vs. Sandra Faleiro FIRST APPEAL NO.138 OF 2001 (8-11-2001) (GOA BENCH) (A.S. AGUIAR, J.) LJSOFT 2002 (4) 65

Maharashtra Agricultural Produce Marketing (Regulation) Act, 1963 _ Section 56 _ Misappropriation of amount _ Code of Criminal Procedure, 1973 _ Section 482 _ Quashing of criminal proceedings.

1) Complaint alleging payment of Rs. 19,00,000/- by market committee to petitioners in contravention of the provisions of law and by fabricating certain documents and without any justification _ If complaint itself discloses an offence then High Court cannot interfere in its inherent powers either under Article 227 of Constitution or u/s 482 Cr.P.C. (See para 8)

2) Misappropriation of amount _ Contended that no prosecution could have been instituted otherwise than by the authorised officer _ Provisions u/s 56 speak about and relate to the offences relating to the contravention of the provisions of law contained in Maharashtra Agricultural Produce Marketing (Regulation) Act and not relating to the acts constituting offences under Indian Penal Code. (See para 9)

Result : Petition dismissed.

Jaysing Daulatsing Rawal and others Vs. State of Maharashtra CRIMINAL WRIT PETITION NOS.288 AND 199 OF 1999 (17-1-2001) (AURANGABAD BENCH) (R.M.S. KHANDEPARKAR, J.) LJSOFT 2002 (4) 39

Maharashtra Agricultural Produce Marketing (Regulation) Rules, 1967 _ Rule 102, 104 _ Interim suspension _ Maintainability of appeal.

Suspension of respondent no.2 pending enquiry _ Suspension is interim in nature and cannot be treated as a penalty after enquiry _ Appeal under Rule 104 not maintainable _ Respondent no.1 erred in rejecting the preliminary objection to the maintainability of the appeal. (See para 6, 7)

Result : Petition allowed.

Agricultural Produce Market Committee, Umrer Vs. Divisional Joint Registrar Cooperative Societies & ors. WRIT PETITION NO.3680 OF 2001 (5-11-2001) (NAGPUR BENCH) (D.D. SINHA, A.B. NAIK, JJ.) LJSOFT 2002 (4) 95

Maharashtra Civil Services (Pension) Rules, 1982 _ Rule 6, 9(36), 60, 131 _ Benefit of pension _ Special pay _ Maharashtra Civil Services (Leave) Rules, 1982 _ Rule 10 _ Constitution of India, 1950 _ Article 14, 309.

1) Petitioner was a member of State judicial service _ Appointed as a Judge of the Labour Court on 21.1.1985 and was drawing grade pay plus special pay _ Retired on superannuation on 31.1.1988 _ Government resolution dated 18.8.1987 restricted term "pensionable pay" to "pay" excluding special pay _ Would be applicable only to the cases of those Government servants, who enter Government service on or after 1.1.1986 because, that is the date on which amendment to definition of "pensionable pay" is brought into force _ Petitioner entitled to pensionary benefits by considering special pay which he was drawing on the date of superannuation as part and parcel of his basic pay. (See para 6, 8, 9)

2) Amendments _ Effect of _ Amendment in a statute or statutory rules, which affects the substantive rights or benefits of the citizens, cannot be given retrospective effect, although procedural amendments can. (See para 9)

3) Policy decision _ Implementation of recommendations of Central Pay Commission, may be a policy decision _ Framing of rules while implementing the recommendation and amendment to such service conditions, cannot be termed to be general policy decision of the State Government. (See para 12)

4) Government resolution dated 3.10.1988 revising rates of travelling allowance/ detention allowance, transfer grants, etc. _ Cut-off date fixed as 1.9.1988 for giving effect _ not illegal _ Prayer to quash this cut off date rejected. (See para 14)

Result : Petition partly allowed.

Narharrao s/o Bhagwantrao Deshpande Vs. State of Maharashtra & Ors. WRIT PETITION NO.1714 OF 1989 (21-9-2001) (AURANGABAD BENCH) (B.H. MARLAPALLE, N.V. DABHOLKAR, JJ.) LJSOFT 2002 (4) 100

Maharashtra Co-operative Societies Act, 1960 _ Section 152-A _ Election of managing committee of unspecified society.

Unspecified society _ Election Rules provide for requirement of two shares for filing a valid nomination _ Rejection of nomination of respondents Nos.3 to 15 on the ground that they were not owners of two shares _ In appeal respondent No.1 ought to have considered the only question that whether nomination was correctly rejected _ Respondent No.1 exceeded his power u/s 152-A by giving untenable direction to respondent No.16 to accept the share value of two shares from the respondents Nos.3 to 15. (See para 6)

Result : Petition allowed.

Madhusudan Parashramji Gujar Vs. Assistant Registrar for Co-operative Societies, Dist. Amravati and others WRIT PETITION NO.44 OF 2002 (18-1-2002) (NAGPUR BENCH) (R.S. MOHITE, J.) LJSOFT 2002 (4) 51

Maharashtra Co-operative Societies Act, 1960 _ Section 91(1) _ Scope of.

Co-operative Society _ Member having shops used for the purpose of restaurant and bakery _ Member causing nuisance and annoyance in conducting the business and had also done some structural changes which are affecting the building and the other Members _ Whether the dispute raised by the Cooperative Society which was registered as an Arbitration Case, falls within the purview of Section 91(1)? (Yes) (See para 12, 14)

Result : Accordingly.

Mandovi Nagar Cooperative Housing Society Vs. Cooperative Tribunal of Goa, Daman & Diu & Ors. WRIT PETITION NO.290 OF 1993 (6-9-2001) (GOA BENCH) (P.S. PATANKAR, J.) LJSOFT 2002 (4) 68

Maharashtra Cooperative Societies Act, 1960 _ Section 154, 101 _ Recovery of amount _ Revision _ Limitation.

Recovery Certificate issued u/s 101 _ Warrant for attachment issued on 7th December 2000 _ Petitioner contended that she came to know of the order passed u/s 101 only after receipt of attachment warrant _ Period of limitation for filing of a Revision u/s 154 begin to run on 7th December, 2000 _ Revision filed within two months on 5th February, 2001 _ Divisional Joint Registrar erred in holding that the Revision Application was barred by limitation. (See para 9)

Result : Petition allowed.

Shobha Vijayrao Pujari Vs. Divisional Joint Registrar, Cooperative Societies, Aurangabad & ors. WRIT PETITION NO.1066 OF 2002 (26-4-2002) (AURANGABAD BENCH) (D.G. KARNIK, J.) LJSOFT (URC) 2002 (4) 106

Maharashtra Land Revenue Code, 1966 _ Section 315 _ Hyderabad Atiyat Enquiries Act, 1952 _ Section 11 _ Appeal and revisions _ Jurisdiction of the Tribunal.

Orders passed by Atiyat Deputy Collector and the Atiyat Collector _ Vide notification dated 6.9.1994 Tribunal was empowered to entertain and decide appeals and revisions _ Tribunal dismissed the appeal as not maintainable observing that there was no amendment made in the Code and particularly to Schedule J thereof _ When a notification is issued and published in the official Gazette, Jurisdiction can be said to have been conferred legally _ Amendment in Schedule to the Code not necessary _ Approach of Tribunal not correct _ Order passed by the Tribunal on such presumption has to be quashed and set-aside _ Matter remanded back to the Tribunal. (See para 9, 11)

Result : Petition allowed.

Shivraj s/o. Manik Bargale & ors. Vs. Shankar s/o. Hanumant Hude & anr. WRIT PETITION NO. 1745 OF 1999 (27/29-6-2001) (AURANGABAD BENCH) (R.G. DESHPANDE, J.) LJSOFT 2002 (4) 101

Maharashtra Land Revenue Code, 1966 _ Section 50 _ Encroachment _ Notice _ Private property _ Powers of Collector.

Collector empowered to abate or remove any encroachment made on any land or property vested in the State Government _ Collector has no power to remove encroachment made on the private property of a private person _ Section 50 not applicable as land does not belong to the Government _ Notice issued to petitioner quashed and set aside. (See para 3, 5)

Result : Petition allowed.

Babamiya S/o Ahmed Shah Inamdar Vs. Tahsildar, Beed & ors. WRIT PETITION NO.1209 OF 1987 (6-3-2002) (AURANGABAD BENCH) (D.G. KARNIK, J.) LJSOFT (URC) 2002 (4) 114

Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 _ Section 2(b-i), 3(1) _ Preventive detention _ Dangerous Person _ Constitution of India, 1950 _ Article 226.

Detention order founded on solitary C.R. _ Regarding another incident dated 8-7-2001, no F.I.R. has been lodged nor are there any in-camera statements of witnesses _ Condition of habitual pre-requisite not satisfied _ Petitioner cannot be detained as a 'dangerous person' u/s 2(b-i) of MPDA Act _ Detention order unsustainable in law. (See para 7)

Result : Petition allowed.

Pradip Bhikaji Satam Vs. S.M. Shangari and others CRIMINAL WRIT PETITION NO.9 OF 2002 (23-1-2002) (VISHNU SAHAI AND S. K. SHAH, JJ.) LJSOFT 2002 (4) 38

Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 _ Section 3(1) _ Preventive detention _ Infirmity in translation _ Constitution of India, 1950 _ Article 22(5), 226.

1) Hindi translation of detention order and grounds of detention furnished to detenu _ Infirmities in translation _ Non-mention of the words 'in exercise of the powers conferred' in Hindi translation of the detention order and omission of the word 'surety' in Hindi translation of the bail application _ Translation need not be a verbatim of the original _ So long as the meaning is conveyed in the translation, the infirmity in translation would not vitiate the detenu's fundamental right of making an effective representation. (See para 4, 5)

2) Averments pertaining to C.R. No. 102/01 _ Detenu had accosted the informant and demanded the expense incurred account of the N.C. complaint filed by him _ Detenu breached law and order and it cannot be a ground for holding that the detenu committed acts prejudicial to the maintenance of public order. (See para 10)

3) Detention order passed on more than one ground _ Would be deemed to be separately passed on each ground _ Mere fact that one of the grounds have been found to be invalid, would not mean that it cannot be sustained if the other grounds are valid and are in accordance with law. (See para 11)

Result : Petition dismissed.

Jafar Ahmed @ Jafar Fantoosh Mohamad Razzak Khan Vs. M.N. Singh, Commissioner of Police, Greater Bombay & ors. CRIMINAL WRIT PETITION NO.1618 OF 2001 (28-1-2002) (VISHNU SAHAI, S.K. SHAH, JJ.) LJSOFT 2002 (4) 63

Maharashtra Protection of Interest of Depositors (In Financial Establishment) Act, 1999 _ Section 3, 4(3) _ Fraudulent deposits _ Complaint by a single individual _ Maintainability of _ Jurisdiction _ Interpretation of statute.

1) Default in payment of deposits _ Collector to send a copy of the complaint to the District Police Superintendent or Commissioner of Police for investigation _ Powers of the police officer to investigate the complaint u/s.156 of Criminal Procedure Code _ Sending of complaint is merely a procedural requirement _ Does not mean that only District Superintendent of Police or the Commissioner of Police can only proceed to investigate the complaint _ Cannot be said that provisions of Section 156 of Criminal Procedure Code are excluded. (See para 6)

2) Default in payment of deposits _ Filing of complaint _ No requirement that investigation can be commenced only when complaint is filed by a group of persons _ Complaint for the purpose of investigation can be by an individual also. (See para 6)

Result : Petition dismissed.

Rajiv Ramanlal Shah Vs. Senior Inspector of Police General Branch & Ors. CRIMINAL WRIT PETITION NO.1224 OF 2001 (24-1-2002) (R.K. BATTA, F.I. REBELLO, JJ.) LJSOFT 2002 (4) 15

Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 _ Schedule IV Item 9 _ Termination of service _ Maintainability of complaint.

Complaint filed under Item 9 of Schedule IV before the Industrial Court alleging that services were terminated without issuing any chargesheet and without conducting any enquiry _ Relief of reinstatement with continuity of service with full back wages can be granted by the Labour Court under Item 1 of Schedule IV of the Act _ Industrial Court has no jurisdiction to try a complaint in which the only grievance is wrongful termination _ Complaint filed under item 9 of Schedule IV not maintainable. (See para 14, 15, 16)

Result : Petition allowed.

Pepsico India Holdings Pvt. Ltd. Vs. Noshir Elavia & Anr. WRIT PETITION NO. 2860 OF 2001 (5/6-2-2002) (MRS. NISHITA MHATRE, J.) LJSOFT 2002 (4) 5

Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 _ Schedule IV Item 9 _ Superannuation _ Correction in birth date.

Service record, Leave Card and Provident Fund record shows the year of birth of petitioner as 1935 _ Petitioner contended that his year of birth was 1946 as recorded in the School Leaving Certificate _ School Leaving Certificate pertains to one Shri Ahir and not to the petitioner, who is Yadav by surname _ Industrial Court was right in not accepting the School Leaving Certificate _ No error of law or any illegality or infirmity in the order of the Industrial Court to warrant any interference under Article 226 of the Constitution of India. (See para 4, 5)

Result : Petition dismissed.

Indrabali Ramnihor Yadav Vs. Phoenix Mills Ltd. & Anr. WRIT PETITION NO. 2533 OF 2000 (13-3-2002) (R.J. KOCHAR, J.) LJSOFT 2002 (4) 11

Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 _ Schedule IV Item 1 _ Termination of services.

Petitioner had filed a complaint on receipt of chargesheet for misconduct _ As per order of High Court, both the parties were allowed to adduce their evidence before the Labour Court as if the Labour Court was holding the enquiry _ On the basis of the evidence and material on record the Labour Court held that the petitioner was guilty of the misconducts and dismissed the complaint _ No violation of principles of natural justice as the enquiry was held by the Labour Court and not by the Company _ No illegality or infirmity in the reasoning of the Labour Court to warrant any interference under Article 226 of the Constitution of India. (See para 3)

Result : Petition dismissed.

Y. Rajan Vs. Indian National Press (Bombay) Limited WRIT PETITION NO. 635 OF 2002 (8-3-2002) (R.J. KOCHAR, J.) LJSOFT 2002 (4) 12

Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 _ Schedule IV Item 1 _ Section 30(2) _ Termination of services _ Subsistence wages.

Petitioner employed as a Driver _ Termination of services _ Complaint of Unfair Labour Practice filed alleging termination as punitive _ Pending complaint application filed for subsistence wages _ Respondent- Company had paid an amount of Rs.1,19,402.42 ps. at the time of termination which the petitioner had accepted _ Petitioner has received a handsome amount by way of his legal dues _ Cannot be said that he is suffering any hardship _ Courts below rightly declined to grant any interim relief to petitioner. (See para 4)

Result : Petition dismissed.

Sidhanath Bhanudas Ghodke Vs. Excel Industries Ltd. WRIT PETITION NO. 487 OF 2001 (6-3-2002) (R.J. KOCHAR, J.) LJSOFT 2002 (4) 13

Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 _ Schedule IV Item 6 _ Claim of regularisation and permanency _ Constitution of India, 1950 _ Article 14, 16 _ Discrimination.

Workmen working on temporary basis in Social Forestry Department _ Government Resolution dated 19th October, 1996 providing that daily-rated workmen who had completed five years continuous service on 1st November, 1994, eligible to be regularised _ Resolution states that the work put in under the Departmental Schemes or Projects other than the Employment Guarantee Scheme is to be considered _ Purpose of those Schemes is different and the funds are from a source other than of the Department _ No fault can be found in that restricting the conferment of permanency on only those engaged in Departmental Schemes or Projects undertaken by Department other than Employment Guarantee Scheme _ Cannot amount to discrimination or unjustified classification. (See para 10, 11)

Result : Petition dismissed.

Manik Guglaji Zine and others Vs. Director of Social Forestry, Maharashtra State, Pune and others WRIT PETITION NO.2910 OF 1997 (29-11-2001) (NAGPUR BENCH) (H.L. GOKHALE, D.D. SINHA, JJ.) LJSOFT 2002 (4) 30

Maharashtra Specified Co-operative Societies Election to Committees Rules, 1971 _ Rule 5(2), 16 _ Change in delegation.

Communication of name of the delegate _ Open for a society to change the name of its delegate not later than 7 days before the date appointed by the Collector under Rule 16 for making nomination _ Collector erred in rejecting the application on the ground that the Resolution of the A.G.M. effecting the change in the delegation has been passed after the date of publication of the provisional voter list _ Collector directed to redecide the objection raised by the petitioner afresh. (See para 4)

Result : Rule made absolute.

Anandrao Vithobaji Umre Vs. Collector Chandrapur and others WRIT PETITION NO.4124 OF 2001 (16-1-2002) (NAGPUR BENCH) (R.S. MOHITE, J.) LJSOFT 2002 (4) 49

Maharashtra University of Health Sciences Act, 1998 _ Section 63, 64, 65 _ Intake capacity of college _ Constitution of India, 1950 _ Article 14, 226 _ Writ jurisdiction.

1) Reduction of intake capacity of the petitioner College from 100 to 50 students by State Government for the Academic Session 2001-02 _ Reduction in intake capacity of the petitioner College from 100 to 50 students is arbitrary and without any valid reason or justification. (See para 25)

2) Recommendations forwarded by the University for permission to increase in intake capacity to the extent of 100 students to the State Government vide its communication dated 22-12-1999 and the permission was also granted by the State Government _ No decision taken uptill now regarding grant of affiliation _ All such decisions which adversely affect the future of the students should be taken within the stipulated period and at its earliest in order to avoid the uncalled for repercussions on the career of the students, without their faults. (See para 26)

Result : Accordingly.

Ravi Nair Physiotherapy College Vs. State of Maharashtra & Anr. CIVIL APPLICATION NO.5536 OF 2001 (25-10-2001) (NAGPUR BENCH) (D.D.SINHA, A.B. NAIK, JJ.) LJSOFT 2002 (4) 96

Maharashtra Village Police Patils (Recruitment, Pay, Allowances and Other Conditions of Service) Order, 1968 _ Rule 5(2) _ Cancellation of appointment _ Principles of natural justice.

Petitioner selected as Police Patil _ Cancellation of appointment on the ground that he does not belong to the reserved communities _ Advertisement only stated that candidates from the reserved communities will be considered with preference _ Order sheet shows that petitioner was far superior to all other candidates _ Petitioner was entitled to a personal hearing but appointment came to be cancelled without any hearing _ Cancellation of the appointment of the petitioner was erroneous and unjustified. (See para 13, 15, 16)

Result : Petition allowed.

Niraj s/o Janardhan Kherde Vs. Member, Maharashtra Administrative Tribunal, Nagpur and others WRIT PETITION NO.931 OF 2001 (21-12-2001) (NAGPUR BENCH) (H.L. GOKHALE, V.M. KANADE, JJ.) LJSOFT 2002 (4) 46

Merchant Shipping Act, 1958 _ Section 2, 3(15), 51 _ Admiralty jurisdiction _ Recovery of Debts Due to Banks and Financial Institutions Act, 1993 _ Section 2(g),17, 34 _ Evidence Act, 1872 _ Section 41 _ Constitution of India, 1950 _ Article 225.

1) Loan advanced by plaintiffs to defendant No.3 for the purchase of defendant Nos.1 and 2 vessels _ Defendant Nos.1 and 2 are mortgaged with the plaintiffs _ Recovery of dues _ Defendants contended that provisions of DRT Act are applicable to the plaintiffs and jurisdiction of High Court to entertain the suit is barred by the provisions of section 18 _ Vessel cannot be treated as a person for the purpose of the provisions of the D.R.T. Act _ Suit instituted by a Bank or financial institution for recovery of its claim against a vessel in the admiralty jurisdiction of the High Court cannot be termed as a debt _ D.R.T. will not have jurisdiction to entertain that suit in terms of the provisions of section 17 of D.R.T. Act. (See para 7)

2) Admiralty jurisdiction _ All the defendants including the vessels are from the State of Andhra Pradesh _ Vessel lying at Visakapatnam _ Agreement of mortgage and agreement of guarantee entered into at Bombay _ Amount of loan was also paid at Bombay _ Part of the cause of action for institution of the suit has arisen at Bombay _ Bombay High Court has the jurisdiction to entertain the suit. (See para 13, 14)

Result : Accordingly.

ICICI Ltd. Vs. M.F.V. 'SHILPA' & ors. ADMIRALTY SUIT NO.3 OF 1994 (3-5-2001) (D.K. DESHMUKH, J.) LJSOFT 2002 (4) 94

Muslim Women (Protection of Rights on Divorce) Act, 1986 _ Section 3, 4, 5, 7 _ Code of Criminal Procedure, 1973 _ Section 125, 128, 397 _ Divorced Muslim Women _ Right of maintenance _ Maintenance _ Revision.

1) Orders of maintenance passed under section 125 Cr.P.C. _ Any application for execution of an order for maintenance passed prior to the commencement of the 1986 Act would be maintainable _ Such order are executable against her former husband, notwithstanding the provisions of the 1986. (See para 16, 20)

2) Pending proceedings by way of revision before the Court of Sessions arising out of the matter decided under Chapter IX of the Code of Criminal Procedure _ Commencement of the 1986 Act with retrospective application _ Pending proceedings will have to be decided as per the provisions of the Code of Criminal Procedure and not as per the provisions of the 1986 Act. (See para 16)

3) Section 4 of 1986 Act giving rights to a divorced Muslim woman to claim maintenance from her relatives or from the Wakf Board _ Not covered under the provisions of Chapter IX of Cr.P.C. _ These are additional rights recognised in favour of a divorced Muslim woman on the basis of Personal Law. (See para 20)

Result : Accordingly.

Naseemunisa Begum d/o Shaikh Yasin and another Vs. Shaikh Abdul Rehman s/o Shaikh Gaffar and another CRIMINAL APPLICATION NOS.66, 11, 248 OF 1989 (13-3-2001) (AURANGABAD BENCH) (V.K BARDE, A.P. DESHPANDE, JJ.) LJSOFT 2002 (4) 34

Narcotic Drugs and Psychotropic Substances Act, 1985 _ Section 20(b)(ii), 22, 50 _ Possession of contraband _ Conduct of accused _ Discrepancy in weight.

1) Prior information was received and raiding party kept a watch on the Appellant _ Appellant was seen talking to a foreigner and hurriedly went behind the stall and had taken something from the sand and put it into his right hand side pant pocket _ Apprehended with 15 grams of charas in his right hand side pant pocket _ Subsequently 300 grams of charas was found burried at a depth of 8 inches in the sand _ No explanation was offered by appellant to the conduct in hurriedly going back behind the stall and putting something in his right hand side pant pocket _ Conduct on the part of the Appellant and finding of 15 grams of charas is a very strong circumstances which shows his knowledge and possession over 300 grams of charas which was subsequently found burried at a depth of 8 inches in the sand. (See para 14)

2) Discrepancy in weight _ 300 grams of charas was seized and what was received by Chemical Analyst was 285 grams of charas _ Difference in weight is marginal i.e. 15 grams _ Difference in weight can be attributed to the electric balance used by Chemical Analyst which must be sophisticated and sensitive balance. (See para 15)

Result : Appeal dismissed.

Hilal Ahmed Vs. State of Goa CRIMINAL APPEAL NO.16 OF 2001 (26-9-2001) (GOA BENCH) (P.V. HARDAS, J.) LJSOFT 2002 (4) 21

Narcotic Drugs and Psychotropic Substances Act, 1985 _ Section 37, 50, 52, 57 _ Bail _ Grant of _ Search and seizure _ Personal search.

1) Recovery of Ganja from the bucket carried by applicant No.2 _ In the top of bucket there were wet clothes and below the wet clothes there was 700 gms. of Ganja _ Section 50 comes into operation only when "the person" of an accused is searched _ Section 50 would not come into play in relation to the search of applicant No.2 of the bucket which she was carrying at the relevant time. (See para 19)

2) Recovery of Ganja _ Contentions relating to violation of Sections 52 and 57 _ Compliance of Sections 52 and 57 is a matter which could be established only at trial and could not be prejudged at the stage of consideration of bail. (See para 20)

3) Grant of Bail _ Recovery of 1 kg. of Ganja the possession of the applicants _ Section 37 of NDPS Act comes into play _ Bail cannot be granted. (See para 21)

Result : Application dismissed.

Govind s/o Ramjilal Agrawal & anr. Vs. State of Maharashtra CRIMINAL APPLICATION NO.892 OF 2001 (24/25-9-2001) (NAGPUR BENCH) (R.K. BATTA, J.) LJSOFT 2002 (4) 27

Negotiable Instruments Act, 1881 _ Section 141, 138 _ Dishonour of cheque _ In-charge of the affairs of the Company.

1) Dishonour of cheque _ Only averment against Petitioner is that he had signed the receipt which was issued two years prior to the date of the dishonour of the cheque _ Absence of averments in the complaint showing the Petitioner to be in-charge of the affairs of the Company _ Offence u/s 141 not attracted. (See para 9)

2) Joining of the Judicial Officers as Respondents to a Petition deprecated _ Respondents No.4 and 5 deleted. (See para 10)

Result : Petition allowed.

Savio Monteiro Vs. Pascoal Barbosa & ors. CRIMINAL WRIT PETITION NO.2 OF 2001 (11-4-2002) (GOA BENCH) (A.S. AGUIAR, J.) LJSOFT (URC) 2002 (4) 105

Negotiable Instruments Act, 1881 _ Section 9, 138 _ Holder in due course _ Purchaser _ Requirement of endorsement.

Dishonour of cheques _ Cheques were purchased by the Bank _ Complaints filed by Bank _ Absence of endorsement on the cheques _ Purchaser of the cheque is a holder-in-due-course _ Not necessary that in favour of purchaser of the cheque there should be an endorsement also _ Bank is holder-in-due-course being the purchaser of the cheques _ Complaint maintainable. (See para 8, 9)

Result : Petitions dismissed.

D.H. Bhatter Vs. State Bank of Bikaner and Jaipur & anr. CRIMINAL APPLICATION NO.3241 OF 2000 (23-1-2002) (A.B. PALKAR, J.) LJSOFT 2002 (4) 19

Partnership Act, 1932 _ Section 37 _ Portuguese Civil Code, 1867 _ Article 2009 _ Inventory Proceedings _ Claim of legal representatives of deceased partner.

1) Partnership _ Death of partner _ For the purpose of the legal representatives of the deceased partner claiming right to the assets of the partnership firm, it is immaterial whether the partnership dissolves or continues _ Even if the partnership continues under an agreement between surviving partners, the share of deceased partner including good-will will devolve on his legal representative. (See para 19)

2) Inventory proceedings _ Contended that the firm or the partner is neither heir nor legatee and partners are strangers to the proceedings _ Amount received on surrender of the partnership property will have to be taken into account _ Inventory Court rightly directed the partner to deposit the amount due to the estate of the deceased partner. (See para 21)

Result : Appeal from Order dismissed.

G. Rama Rao Vs. Joseph de Souza & ors. APPEAL FROM ORDER NO.17 OF 2000 (17-8-2001) (GOA BENCH) (A.S. AGUIAR, J.) LJSOFT 2002 (4) 67

Portuguese Civil Code, 1867 _ Article 2107 _ Inventory Proceedings _ Partition of property _ Jurisdiction of Inventory Court.

Inventory Proceedings _ Application for partition by metes and bounds _ Partition of the property could be done only by mutual agreement _ Inventory Court has no power to direct partition of the property in the absence of a mutual agreement _ Trial Court exceeded its authority in directing partition of the property by metes and bounds in the face of objections taken by the appellants. (See para 4)

Result : Appeal From Order allowed.

Sunitabai Naraina Naique & ors. Vs. Shreepad S. Naique APPEAL FROM ORDER NO.45 OF 2001 (30-11-2001) (GOA BENCH) (A.S. AGUIAR, J.) LJSOFT 2002 (4) 78

Prevention of Food Adulteration Act, 1954 _ Section 23 _ Prevention of Food Adulteration Rules, 1955 _ Rule 60, 61 _ Soft drinks _ Use of Bromide vegetable oils.

Restriction for use of Brominated Vegetable Oils as an ingredient of the Soft Drink Concentrate _ Petitioners had manufactured the Soft Drink Concentrate, orange flavour in February, 1990 _ There was no restriction during the period from 15th April, 1988 to 29th March, 1990 _ Petitioners not responsible for something which takes place long after he has parted with the goods _ Petitioners cannot be said to have committed any offence under Prevention of Food Adulteration Act and Rules framed thereunder _ Order of issuance of process quashed and set aside. (See para 13, 14)

Result : Petition allowed.

Corn Products Company (India) Ltd., Mumbai and another Vs. State of Maharashtra and others CRIMINAL WRIT PETITION NOS.44 TO 46 OF 1999 (11-12-2001) (NAGPUR BENCH) (V.M. KANADE, J.) LJSOFT 2002 (4) 29

Prevention of Insult to National Honour Act, 1971 _ Section 2 _ Omission to hold Flag Hoisting Ceremony _ Constitution of India, 1950 _ Article 49.

Omission on part of the Headmistress to hold Flag Hoisting Ceremony on the Goa Liberation Day _ No statutory provision making it mandatory to hold the flag hoisting ceremony on Goa Liberation Day _ No offence can be said to be committed _ Headmistress tendered an unconditional apology and stated that omission was not deliberate but due to circumstances beyond her control _ Censure letter issued by the Education Department is sufficient compliance with the requirements of the Circular dated 22.1.1982 from the Director of Education. (See para 5, 8, 9)

Result : Petition dismissed.

Sarvadnya D. Patil & anr. Vs. State of Goa & ors. WRIT PETITION NO.50 OF 2001 (10-9-2001) (GOA BENCH) (P.S. PATANKAR, A.S. AGUIAR, JJ.) LJSOFT 2002 (4) 79

Preventive detention _ In-camera statements _ Non verification of.

Detention _ In-camera statements supplied to the detenu not verified _ Detention order passed on those statements cannot be sustained _ Detention order quashed and set aside. (See para 2)

Result : Petition allowed.

Soma Laxman Khaire Vs. M.N. Singh, Commissioner of Police, Greater Bombay & ors. CRIMINAL WRIT PETITION NO. 194 OF 2002 (8-4-2002) (D.G. DESHPANDE, S.K. SHAH, JJ.) LJSOFT (URC) 2002 (4) 110

Preventive Detention _ Non-communication of rejection of representation.

Detenu not communicated the rejection reply regarding the his representation _ Detention order in its entirety cannot be quashed _ Continued detention is set aside. (See para 3)

Result : Petition allowed.

Arun Namdev More Vs. State of Maharashtra & ors. CRIMINAL WRIT PETITION NO. 13 OF 2002 (3-4-2002) (D.G. DESHPANDE, S. K. SHAH, JJ.) LJSOFT (URC) 2002 (4) 113

Requisition and Acquisition of Immovable Property Act, 1952 _ Section 6(1A), 8 _ Recovery of possession _ Compensation _ Constitution of India, 1950 _ Article 226.

1) Sub-section (1A) inserted in Section 6 w.e.f. 11th March, 1970 by Requisition and Acquisition of Immovable Property (Amendment) Act, 1970 _ Premises requisitioned on 17-2-1966 _ Property not acquired u/s 7 _ Provisions of clause (a) of Section 6(1A) applicable _ Requisition came to an end and the premises ceased to be requisitioned premises from 17-3-1976 and in any event from 17-3-1981 _ Respondents bound to restore possession thereof to the Petitioner. (See para 9, 12)

2) Claim of compensation for wrongful use _ Section 8 provides a machinery for the determination of the same _ High Court cannot determine the quantum of compensation in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. (See para 15)

Result : Accordingly.

Kanhayalal Ramlal Bagadia Vs. State of Maharashtra & Ors. WRIT PETITION NO.2816 OF 1991 (16-3-2002) (R.M.LODHA, S.J. VAZIFDAR, JJ.) LJSOFT (URC) 2002 (4) 108

Securities Contracts (Regulation) Act, 1956 _ Section 2(h) _ Suit for recovery _ Expression "securities" _ Code of Civil Procedure, 1908 _ Order VII Rule 11 _ Rejection of plaint.

Suit for recovery _ Money financed by Mutual Fund and scrips retaining as securities till the monies were repaid back by the Defendants alongwith interest _ Contended that the transactions were in the nature of ready forward transactions and the forward leg aspect is illegal and impermissible in law _ Issues whether the transactions involved were of ready forward transactions or not, and whether the scrips involved were covered under the Securities Contracts (Regulation) Act or not, evidence will have to be led _ Merely by reading the Plaint cannot be said that the Plaint proceeds on the basis of a claim which is barred by law and that it does not disclose any cause of action _ Plaint could not be rejected on ground of absence of cause of action. (See para 16, 17)

Result : Chamber summons dismissed.

Canbank Financial Services Ltd. Vs. Y.B. Desai & anr. CHAMBER SUMMONS OF NO.455 OF 2001 (12-6-2001) (S. RADHAKRISHNAN, J.) LJSOFT 2002 (4) 92

Service Law _ Disciplinary Proceeding _ Principles of natural justice.

1) Petitioner working as Material Manager in respondent-Corporation _ Charged with misconduct of theft _ Dismissed from service after enquiry _ Petitioner contended that enquiry was held in violation of the principles of natural justice since two material witnesses were not examined _ Not mere violation of natural justice but de-facto prejudice had to be proved _ Non examination of witnesses has not caused any prejudice to the petitioner _ No perversity noticed in the findings recorded by the authorities below. (See para 15)

2) Petitioner charged with misconduct of theft _ Contended that articles which were not even worth Rs.100/- and the punishment of dismissal is out of proportion _ Value of the articles would hardly matter in case of theft because it is an act of theft itself which is punishable _ Would be against the interests of other workmen and management, if adequate punishment is not imposed _ Dismissal from service is adequate punishment. (See para 21)

Result : Petition dismissed.

Kamal Sahdev Karna Vs. Bharat Petroleum Corporation Ltd. WRIT PETITION NO. 813 OF 1989 (14-2-2002) (P.S. PATANKAR, D.B. BHOSALE, JJ.) LJSOFT 2002 (4) 7

Service Law _ Preliminary issue _ Maintainability of complaint.

Preliminary issue _ Labour Court held that issue as to maintainability of complaint shall be decided with the main complaint _ Labour Court relied on decision in the case of Hindustan Coca Cola (2001 (7) LJSOFT 47) _ Said decision has been set aside by Division Bench (2001 (12) LJSOFT 44) _ Order of Labour Court set aside. (See para 2)

Result : Accordingly.

Hindustan Lever Ltd. Vs. S.V. Hinge & Ors. WRIT PETITION NO. 245 OF 2002 (11-2-2002) (MRS. NISHITA MHATRE, J.) LJSOFT 2002 (4) 3

Service Law _ Primary schools _ Pay-scale _ Promotion to post of Head Master _ Constitution of India, 1950 _ Article 226 _ Writ jurisdiction.

1) Awardee teachers _ Common seniority list of primary teachers prepared by excluding the awardee teachers _ Separate seniority list of awardee teachers was prepared in December, 1985 _ Petition against the same filed after lapse of nearly four years _ Petition suffers from the vice of laches. (See para 4)

2) Awardee teachers were given higher payscale equivalent to payscale of secondary teachers _ Awardee teachers were given option to revert to the status of primary teachers and those who did not opt to revert would not be considered for promotion to the posts of Head Master _ Petitioners had elected to continue or were deemed to have elected so to continue by not exercised option _ Not open for them to claim eligibility for promotion to the posts of primary school Head Masters. (See para 5)

Result : Petition dismissed.

Anandrao s/o Marutirao Deshmukh & anr. Vs. State of Maharashtra & ors. WRIT PETITION NO. 2657 OF 1989 (28-9-2001) (AURANGABAD BENCH) (B.H. MARLAPALLE, N.V.DABHOLKAR, JJ.) LJSOFT 2002 (4) 102

Shivaji University Act, 1974 _ Section 42(1) _ Statute 200(B)(e), 200(A) _ Extra ordinary leave.

Petitioner was a full time lecturer _ Petitioner contested elections and got elected as its member of Legislative Assembly _ Clause (A) of Statute 200 provides that a teacher who becomes a member of the Parliament or State Legislature, requires to go on leave during the period which he remains a member of that body and his lien on his original post will be kept _ No question of seeking extra ordinary leave _ Directions of the University asking the petitioner to proceed on leave cannot be said to be ultra vires of the powers of respondent no.3 University. (See para 5, 7)

Result : Petition dismissed.

Subhash Shridhar Joshi Vs. Janata Shikshan Mandal & ors. WRIT PETITION NO.3200 OF 1991 (11-12-2001) (R.M. LODHA, D.B. BHOSALE, JJ.) LJSOFT 2002 (4) 82

Trade and Merchandise Marks Act, 1958 _ Section 9, 29, 34, 105, 106 _ Infringement of trade mark _ Passing off action _ Code of Civil Procedure, 1908 _ Order XXXIX Rule 1, 2 _ Temporary injunction.

1) Appellants carrying on the business of marketing, selling and providing bed sheets, bed covers, mattresses, etc. in name of 'Saboo Sons', 'Saboo Decopride' and 'Saboo Textiles' _ Petitioners and defendants having same surname 'Saboo' _ Defendants doing business in similar goods under name of 'Saboo Fab', 'Saboo Furnishing, 'Saboo Collections' etc. _ Appellants dealing in the business since 1987 and the respondents have entered into this business in 1998 _ User of trade name, i.e. 'Saboo Collections' by respondents created confusion in the mind of the customers _ Similarity of trade name being used by the respondents, there is a reasonable probability of deception _ Plaintiffs entitled to temporary injunction. (See para 10, 13, 14, 25)

2) Action for passing off _ Suit would lie only in the District Court and not in the Court of Civil Judge, Junior Division. (See para 22)

Result : Appeals allowed.

Pawan Kumar Atmaram Saboo & anr. Vs. Saboo Collections APPEAL AGAINST ORDER NO.27 OF 2001 (27-7-2001) (NAGPUR BENCH) (S.D. GUNDEWAR, J.) LJSOFT 2002 (4) 97