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20 Sep

Madras High Court says there is no ground to interfere in the judgment of the trial Court in convicting an accused.

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Title: V. Radhakrishnan. Vs. The State.

Decided On: September 19, 2023.

Crl.A.No.627 of 2016.

Coram: Hon’ble Dr. Justice G. Jayachandran.

Facts:

The accused while serving as VAO of Kottathupatty Village, demand of illegal gratification of Rs.2000/- in two instalments of Rs.1000/- by the accused for name transfer in the Patta was lodged on 24.11.2003 at 9.30 a.m. After registration of the case, trap was laid. At about 15.15 hours the accused demanded and accepted Rs.1000/- from the defacto complainant. The said transaction was witnessed by the shadow witness Paramasivam.The phenolphthalein smeared currency of one 500 Rupees notes and five hundred rupees notes were recovered from the accused which was kept in the left outer shirt pocket. The trial Court framed charges under Section 7 and 13(2) r/w 13(1)(d) of P.C Act. The trial Court accepting the case of the defacto complainant regarding the demand and acceptance of Rs.1000/- as bribe by the accused on 24.11.2003, convicted and sentenced him to undergo 1 year R.I and to pay fine of Rs.5000/-, in default to undergo 6 months S.I for the offence under Section 7 of P.C Act and to undergo 2 years R.I and to pay fine of Rs.10,000/-, in default to undergo S.I for 6 months. This Criminal Appeal has been filed under Section 374 of the Code of Criminal Procedure, 1973, to set aside the order passed by the Special Judge, Special Court for trial under the Prevention of Corruption Act.

Legal Analysis and Decision:

It is a case of demand and acceptance of illegal gratification. The bribe amount of Rs.1,000/- smeared with the phenolphthalein and marked under the Entrustment Mahazar was recovered from the accused under Seizure Mahazar. The currency recovered from the accused tallied with the currency number found in the Entrustment Mahazar. In addition, the hands of the accused was tested with the Sodium Carbonate solution. The solution turned red indicates handling of phenolphthalein. The shirt pocket portion where the money was kept by the accused also subjected to the phenolphthalein test and proved positive. The trial Court has also found that there is no corroboration for the allegations of second demand on 22.11.2003. However, the third demand on the day of the trap and successful completion of the trap leads to the inference of the previous demand. The third demand and proof of third demand cannot be an inference for the earlier demand unless and until, it is proved beyond doubt. In this case the second demand on 22.11.2003 lacks corroboration, but it does not disproved the case of the prosecution in respect of the demand on 24.11.2003 and the receipt of the same by the accused. The defence taken by the accused that the money was planted in his shirt pocket is not probable, since not only his shirt pocket portion, but both of his hands were found positive for phenolphthalein. Unless and until the accused had received the money and counted it before keeping it in his pocket, it is impossible for both his hands to contact phenolphthalein. Neither PW.2 nor PW.3 had any animosity against this appellant to depose facts which is not true. Inspite of incise cross examination of these two witnesses, their credibility has not impeached. Therefore, the evidence of 2^nd witness corroborated by the eye witness 3^rd witness of the prosecution for demand and acceptance of Rs.1,000/- on 24.11.2003 during the trap besides scientific proof. Recovery of the tainted money from the possession of the accused prove the case of the prosecution to the core. The trial Court has rightly convicted the appellant. There is no ground to interfere in the judgment of the trial Court.

Conclusion:

The Court Concludes that this Criminal Appeal shall be dismissed and the trial Court conviction and sentence shall be confirmed. The trial Court is directed to secure the appellant/accused and commit him to prison to undergo the remaining period of sentence. The period of sentence already undergone by the accused shall be set off under Section 428 of Cr.P.C.

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JUDGEMENT REVIEWED BY JANGAM SHASHIDHAR.

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20 Sep

Madras High Court directs BPCL is to vacate the subject Government land within 1 month.

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Title: Bharat Petroleum Corporation Ltd. Vs. State of Tamil Nadu.

Decided On: September 19, 2023.

W.P.No.20312 of 2020 and W.M.P.No.25096 of 2020.

Coram: Hon’ble Mr. Justice S.M. Subramaniam.

Facts:

The Government issued G.O. on 03.02.1978 and ordered to lease out an extent of 0.21 6/16 acres (or) 21.375 cents of the Government land in Udhagai Taluk, Nilgiris District in favour of M/s. N.N Naidu & Sons for the period from 17.07.1967 to 13.06.1978 with the condition that the lease will not be renewed after 30.06.1978. Accordingly, the Government had ordered for resumption of the subject land on 01.07.1978. The Government had ordered for leasing out the subject land to M/s. Bharat Petroleum Corporation Limited, for a period of 13 years from 15.05.1981 to 14.05.1994. On expiry of the lease period, the lease was renewed for a further period of 9 years from 15.05.1994 to 14.05.2003. The lessee BPCL had not remitted the lease amount to the Government and action was initiated under the provisions of the Revenue Recovery Act by the Tahsildar, Udhagamandalam against the lessee.

The present case, the lease period expired as early as 14.05.2003 and in view of pendency of W.P.No.13012 of 2007, filed by M/s.N.N. Naidu and Sons (Dealer of BPCL) and interim stay granted thereon, further renewal of lease could not be made. While dismissing the writ petition on 08.08.2019, the Hon’ble High Court has pointed out that M/S. N.N.Naidu & Sons has no locus standi to challenge the demand notice issued by the Tahsildar, as they were not party to the notice. The petitioner’s Company having known the above fact, allowed the dealer to contest the case unnecessarily for the past 13 years and failed in the legal forum, now has come forward to negotiate with the administration for the fixation of the fair lease rent.

Legal Analysis and Decision:

In the present case, the petitioner lessee is neither paying the lease rent nor is vacating the Government land so as to put the land for any kind of public interest. the Government issued orders for collection of lease rent at 7% of land cost inclusive of additional surcharge and 14% of land cost inclusive of additional surcharge for non commercial purpose and commercial purposes respectively, in respect of the leases in the Municipal areas and Corporation limits. Based on the said Government Order, the lease rent at the rate of 14% of the land cost is worked out as lease rent and the petitioner has not challenged the Government Order having accepted the renewal of lease and fixation of lease rent as ordered by the Government. The petitioner company has to abide by the terms and conditions. The petitioner company having agreed to the terms and conditions laid down by the Government and the District Administration, Nilgiris District, is obligated to comply with the same. The penal rent at the rate of 12% of the lease rent per annum was also imposed by way of the condition which was agreed by the petitioner company.

The petitioner company is in unauthorised occupation of the valuable Government land. Adjacent to the petitioner company, there are other petrol bunks which are run by other petroleum corporations. Thus, resumption of land would not cause any public inconvenience in that locality. The petitioner is a chronic defaulter in payment of lease rent and they have continuously committed default in payment of the rent. The petitioner BPCL, being a commercial organization and running petrol bunk for profit, is not entitled to claim any leniency either from the Government of Tamil Nadu or from the hands of this Court. The petitioner is selling petroleum products and making profit without paying lease rent to the Government of Tamil Nadu resulted in monetary loss to the state exchequer. As rightly pointed out that Udhagamandalam is a hilly area where 45% of the area is covered by forest, the District Administration finds it difficult to identify lands for public purposes.

The court passed the following orders:

The relief as such sought for in the present writ petition stands rejected.
The petitioner BPCL is directed to vacate the subject Government land within a period of one (1) month from the date of receipt of a copy of this order and to hand over vacant possession to the District Administration of Nilgiris District.
In the event of failure to vacate the premises within a month, the respondents 1 to 3 are directed to evict the petitioner and resume the Government land immediately on expiry of the 1month period.
The respondents 1 to 3 are directed to recover the arrears of lease rent and other charges as admissible under law by following the procedures as contemplated.

Conclusion:

Since the petitioners has not established any acceptable grounds for the purpose of considering their case for grant of relief. The court directed BPCL to vacate the land and handover the possession to District Administration of Nilgiris District within 1 month.

JUDGEMENT REVIEWED BY JANGAM SHASHIDHAR.

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20 Sep

NHAI’s Battle for Compensation: Deciphering Delhi High Court’s Recent Decision

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Case Title: National Highways Authority of India v. D S Toll Roads Pvt. Ltd.

Date of Decision: 19/09/2023

Case Number: O.M.P. (COMM.) 546/2016 & I.A.15029/2016

Coram: Hon’ble Mr. Justice Manoj Kumar Ohri

Factual Background

In this case, the petitioner, the National Highways Authority of India (NHAI), filed a petition under Section 34 of the Arbitration & Conciliation Act, 1996, challenging an arbitral award dated 07.07.2016. The arbitral award was made in response to disputes arising from a Concession Agreement between NHAI and the respondent, D S Toll Roads Pvt. Ltd., regarding the construction and operation of a highway in Tamil Nadu. The petitioner contested certain claims made by the respondent and sought a review of the award.

Legal Issue

The key legal issue in this case was the interpretation of the Concession Agreement and the applicability of specific clauses regarding compensation for delays and additional costs.

Observation and Analysis

The Court examined the relevant clauses of the Concession Agreement, particularly sub-clauses 13.5.1, 13.5.2, and 31.2, to determine the appropriate compensation for the delays. The Court emphasized that a comprehensive reading of the clauses, including their provisos, was essential. It concluded that compensation should be calculated in accordance with sub-clause 31.2 because the provisional completion certificate and the COD (Commercial Operation Date) were adversely affected and delayed. The Court noted the limited scope of interference under Section 34 of the Arbitration & Conciliation Act, emphasizing that the Court could only intervene if the arbitral award was patently illegal or perverse.

Decision of the Court

The Court found that the arbitral tribunal’s decision was reasonable and legally sound. It upheld the applicability of sub-clause 31.2 of the Concession Agreement and dismissed the petitioner’s objection under Section 34. Consequently, the petition was dismissed, and no costs were awarded.

Written by – Ananya Chaudhary

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20 Sep

Unlocking the Mysteries of Pledged Shares: Delhi High Court’s Interim Verdict

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Case Title: DLF Limited v. PNB Housing Finance Limited & Ors.

Date of Decision: September 18, 2023

Coram: Hon’ble Mr. Justice Manoj Kumar Ohri

Introduction

This judgment concerns two petitions filed under Section 9 of the Arbitration and Conciliation Act, 1996 (A&C Act) by DLF Limited (DLF) and Chinsha Property Private Limited (Chinsha), both shareholders in Joyous Housing Ltd. (JHL). The petitioners seek interim protection in relation to the invocation of pledged shares by Punjab National Bank Housing Finance Limited (PNB) and the subsequent sale of these shares.

Factual Background

DLF, Chinsha, and Hubtown are shareholders in JHL, holding 37.5%, 37.5%, and 25% shares, respectively. The dispute arises from a construction finance loan facility availed by JHL from PNB for a slum development project. The loan was secured by a mortgage and the entire shareholding of the three shareholders was pledged as additional security. Petitioners challenge the invocation of the pledge by PNB.

Legal Issues

The key legal issues include the validity of the pledge invocation, the assignment of the debt, the sale of pledged shares, and whether the petitioners were denied their right of redemption under Section 177 of the Contract Act.

Contentions

Petitioners argued that the sale of pledged shares was rushed and that they had offered to pay to redeem the shares, but their offer was not responded to by PNB.
PNB asserted that the sale was conducted in accordance with RBI guidelines and that the petitioners could not acquire the pledged shares themselves.
Omkara, the assignee of the debt, defended the sale and denied collusion with PNB.
Hubtown alleged collusion between PNB and DLF.

Observation of the Court

The court noted that the sale process appears to have been rushed, and the petitioners’ offer to redeem the shares was not responded to by PNB. The court also emphasized the importance of the pawnor’s right of redemption under Section 177 of the Contract Act. It questioned the process of assignment and sale and expressed doubt about whether the sale was conducted in a transparent and fair manner.

Decision of the Court

The court granted interim relief by directing Omkara to disclose the identity of the transferees of the pledged shares to the petitioners. It also ordered that further transfers of the pledged shares be suspended and not recognized by JHL.

The court suggested that the sale of pledged shares may have been premature. It emphasized that the final decision on these issues will be made by the arbitral tribunal. The court advised the parties to cooperate with the arbitral tribunal and concludes that the present proceedings are not the appropriate forum to decide the complex issues raised in this case.

Written by – Ananya Chaudhary

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20 Sep

Bombay High Court at Goa sets aside order going against natural principles of justice by not giving an opportunity to the petitioner to argue his side

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Bombay High Court at Goa sets aside order going against natural principles of justice by not giving an opportunity to the petitioner to argue his side

Title: Shripad Shriram Naik v. Kusaji Chandrakant Naik

Decided on: August 3, 2023

Citation: 2023 SCC OnLine Bom 1643

CORAM: HON’BLE JUSTICE M.S. SONAK

Facts of the Case

The challenge in this petition is to the order allowing the respondent to temporarily cover the roof of the disputed structure with asbestos sheets. Applicant had made a grievance that as it has already started raining, it is causing tremendous hardship to them. Considering the incidents of heavy rains hitting the state, the Trial court permitted them to temporarily cover the roof with asbestos sheets. The Trial Court had restrained the respondent from undertaking any further construction to the suit house. Since it has been raining heavily presently in the area where the suit house is located, as such a lot of water comes inside the Suit house as a result of lack of roofing and as such great hardship is being caused to the appellant, the court allowed the appellant to cover the roofing with the Asbestos Sheet as a Temporary arrangement.

Court Analysis and Judgement:

The Court held that the earlier impugned order was given without giving any opportunity to the petitioner to give his say or to argue the matter. This was not proper. Such an order should not have been made without complying with the principles of natural justice. The Appeal Court should have given at least a short notice. The court held that though the appeal Court’s order is wrong and warrants interference, it would not be appropriate at this stage to require the respondent to remove the asbestos sheets already provided. Instead, the ends of justice would be met if the appeal Court is directed to dispose of the appeal. Also, it was held that the party will have to remove the asbestos roofing should the appeal be ultimately decided against the respondent.

Written by- Reema Nayak

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