Unauthorised Construction and Rule of Law

Demolition of unauthorised construction

The High Court has directed dismantling of the whole project and for restoration of the park to its original condition. This Court in numerous decisions has held that no consideration should be shown to the builder or any other person where construction is unauthorised. This dicta is now almost bordering the rule of law. Stress was laid by the appellant and the prospective allottees of the shops to exercise judicial discretion in moulding the relief. Such discretion cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorised construction, if it is illegal and cannot be compounded, has to be demolished. There is no way out. Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing the robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion the wherever it is required to be exercised has to be in accordance with law and set legal principles.
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Suspicion cannot replace proof in a criminal trial

Benefit of reasonable doubt

In a criminal trial suspicion however grave cannot take the place of proof and the prosecution to succeed has to prove its case and establish the charge by adducing convincing evidence to ward off any reasonable doubt about the complicity of the accused. For this, the prosecution case has to be in the category of “must be true” and not “may be true”.

[Source: Khekh Ram vs. State of H.P., decided by SC on 10 November 2017]
A criminal trial is not like a fairy tale wherein one in free to give flight to one’s imagination and phantasm.

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Bail under Prevention of Money Laundering Act

Conditions for bail under PMLA

Section 45 of PMLA is as under:

45. Offences to be cognizable and non­bailable.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule shall be released on bail or on his own bond unless­

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail:

Provided that a person who is under the age of sixteen years or is a woman or is sick or infirm, may be released on bail, if the Special Court so directs:

Provided further that the Special Court shall not take cognizance of any offence punishable under section 4 except upon a complaint in writing made by—

(i) the Director; or

(ii) any officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government by a general or a special order made in this behalf by that Government.

(1A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into an offence under this Act unless specifically authorised, by the Central Government by a general or special order, and, subject to such conditions as may be prescribed.

(2) The limitation on granting of bail specified in sub­section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.”

Provision if binding on High Court

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Limitation for revocation of Probate is three years

Application of Limitation Act to Probate Proceedings

Court in Kerala State Electricity Board, Trivandrum v. T.P. Kunhaliumma, AIR 1997 SC 282 has held that any application under any Act, including a Writ Petition under any Special Act will fall under within Article 137 of the Limitation Act and have a limitation period of three years.

“22. The changed definition of the words “applicant” and “application” contained in Section 2(a) and 2(b) of the 1963 Limitation Act indicates the object of the Limitation Act to include petitions, original or otherwise, under special laws. The interpretation which was given to Article 181 of the 1908 Limitation Act on the principle of ejusdem generis is not applicable with regard to Article 137 of the 1963 Limitation Act. Article 137 stands in isolation from all other Articles in Part I of the third division. This Court in Nityanada Joshi’s case (supra) has rightly thrown doubt on the two Judge Bench decision of this Court in Athani Municipal Council case (supra) where this Court construed Article 137 to be referable to applications under the Civil Procedure Code. Article 137 includes petitions within the word “applications.”

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Relief of declaration without specific performance if maintainable

Can a suit for declaration be filed without seeking specific performance of agreement?

Right under agreement to sell

The appellant had no title to the suit land. All that he had claimed to possess in relation to the suit land was an agreement dated 24.04.1980 to purchase the suit land from its owner (Shri Ved Prakash Kakaria). The appellant, as mentioned above, failed to prove the agreement. In this view of the matter, the appellant had no prima facie case in his favour to file a suit nor he had even any locus to file the suit in relation to the suit land once the agreement was held not proved.

Specific performance is proper remedy

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When imposition of jail sentence and fine on the accused is mandatory.

Mandatory Jail Term

Section 325 of IPC is as under:

“325. Punishment for voluntarily causing grievous hurt.-Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”

Section 428 of Cr.PC is as under:

“428. Period of detention undergone by the accused to be set off against the sentence of imprisonment.-Where an accused person has, on conviction, been sentenced to imprisonment for a term, not being imprisonment in default of payment of fine, the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him:

Provided that in cases referred to in section 433A, such period of detention shall be set off against the period of fourteen years referred to in that section.”

So far as Section 325 IPC is concerned, its reading would show that once the accused is held guilty of commission of offence punishable under Section 325 IPC, then imposition of jail sentence and fine on the accused is mandatory. In other words, the award of punishment would include both, i.e., jail sentence and fine. So far as jail sentence is concerned, it may extend upto 7 years as per Court’s discretion whereas so far as fine amount is concerned, its quantum would also depend upon the Court’s discretion. Continue reading “When imposition of jail sentence and fine on the accused is mandatory.”

Liability of lessor or landlord to pay service tax on rent

Liability to pay Service Tax on rent:

The Service Tax Rules, 1994 have been made in exercise of powers under the rule making Section, namely, Section 94 of the Finance Act, 1994 which came into force on 1.4.1994. Rule 2(1)(d) reads as follows:-

“2. Definitions (1) In these rules, unless the context otherwise requires, –

….

(d) “person liable for paying service tax”, –

(i) in respect of the taxable services notified under sub-section (2) of section 68 of the Act, means,- …….

(E) in relation to services provided or agreed to be provided by Government or local authority except,-

(a) renting of immovable property, and

(b) services specified sub-clauses (i), (ii) and (iii) of clause (a) of section 66D of the Finance Act,1994, to any business entity located in the taxable territory, the recipient of such service; ……

(ii) in a case other than sub-clause (i), means the provider of service.”

In this deed of lease between the lessor and the lessee for a period of three years at a rent of Rs.16,34,967/- per month, it was agreed that:

“6. The lessor/lessors shall pay all rates, taxes, assessment, charges and other outgoings whatsoever of every description which under the statutes are primarily leviable upon the lessor and shall keep the premises free from all encumbrances and interference in this behalf. Rates and taxes primarily leviable upon the occupier shall be paid by the Government.”

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Procedure for prosecution for using forged document in court proceedings

Forgery in court proceedings

Section 195(1)(b) of Criminal Procedure Code is as under:

No Court shall take cognizance-(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860 ), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or
(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub- clause (i) or sub- clause (ii), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate.

The bar contained in Section 195(1)(b)(ii) of the Code is not applicable to case where forgery of the document was committed before the document was produced in a Court. Continue reading “Procedure for prosecution for using forged document in court proceedings”

Judicial Notice of a well known fact in public knowledge

Judicial notice of Satyam Scam of inflated profits:

B. Ramalinga Raju, Chairman, Satyam Computer Services Ltd. wrote a letter admitting inflated profits an bank/cash balances in financial statements which was addressed to the board of directors, SEBI and financial institutions; if could be admitted in evidence without formal proof?

Conclusion of Supreme Court:

The aforesaid letter, its contents and signature of the author of the letter – Mr. Raju, were never in dispute and nor at any point of time anyone questioned it. In other words, the existence of letter, its contents and signature of Mr. Raju on the letter were never doubted and nor its author (Mr. Raju) at any point of time retracted from his confessional statement made therein or denied having written such letter.

In my opinion, therefore, the letter in question was rightly received in evidence without requiring any further formal proof to corroborate its existence and contents. That apart, it being a “notorious fact” being in the knowledge of the whole World and especially those in the trade, the Courts could take judicial notice of such evidence as held by this Court in the case of Onkar Nath & Ors. Vs. Delhi Administration, (1977) 2 SCC 611. It is appropriate to quote the words of the leaned Judge- Justice Y.V.Chandrachud (as His Lordship then was), who speaking for the Bench held as under: Continue reading “Judicial Notice of a well known fact in public knowledge”

Substitution of legal heir in criminal prosecution

Substitution of deceased complainant.

Section 256 of Code of Criminal Procedure, 1973 is contained in Chapter XX with the heading “Trial of summons­cases by Magistrates” provides as follows:

“Section 256. Non­ appearance or death of complainant.­(1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:

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