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)<