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Mohammadan law: Hiba (gift) – Essential requisites of – Held: Are: (1) declaration of the gift by the donor, (2) acceptance of the gift by the donee and (3) delivery of possession -The rules of Mohammadan Law do not make writing essential to the validity of a gift and an oral gift fulfilling all the three essentials make the gift complete and irrevocable – However, the donor may record the transaction of gift in writing – In the instant case, as all the three essential requisites are satisfied by the gift deed – The gift in favour of defendant 2 became complete and irrevocable -Judgment of High Court set aside and that of trial court, holding the gift deed genuine and binding between the parties, restored -Transfer of Property Act – ss. 129 and 123. Transfer of Property Act, 1882: ss. 123 and 129 – Deed of gift executed by a Mohammadan – HELD: Is not the instrument effecting, creating or making the gift – Such writing is not a document of title but is a piece of evidence – Section 129 preserves the rule of Mohammadan Law and excludes the applicability of s. 123 to a gift of an immovable property by a Mohammadan – In the instant case, the gift deed is a form of declaration by the donor and not an instrument of gift as contemplated u/s 17 of the Registration Act – Registration Act, 1908 – s.17. In a suit for partition between the parties governed by Sunni Law, defendant no. 2 set up the defence that his father executed a hiba (gift deed) on 5.2.1968 and gifted his properties to him, and put him in possession of the hiba properties. The trial court held the hiba as true, valid and binding between the parties, and dismissed the suit. In the appeal, before the High Court it was contended for the plaintiffs that the gift deed dated 5-2-1968 being in writing was compulsorily required to be registered and stamped and in the absence thereof the gift deed could not be accepted and relied upon. The High Court allowed the appeal and remanded the matter to the trial court for passing a preliminary decree.=Allowing the appeal filed by heirs of defendant no.2, the Court HELD: 1.1. The position is well settled, which has been stated and restated time and again, that the three essentials of a gift under Mohammadan Law are: (1) declaration of the gift by the donor; (2) acceptance of the gift by the donee and (3) delivery of possession. The rules of Mohammadan Law do not make writing essential to the validity of a gift; and an oral gift fulfilling all the three essentials make the gift complete and irrevocable. However, the donor may record the transaction of gift in writing. [para 27] [1175-h; 1176-a-b] 1.2. Merely because the gift is reduced to writing by a Mohammadan instead of it having been made orally, such writing does not become a formal document or instrument of gift. When a gift could be made by Mohammadan orally, its nature and character is not changed because of it having been made by a written document. What is important for a valid gift under Mohammadan Law is that three essential requisites must be fulfilled. The form is immaterial. If all the three essential requisites are satisfied constituting a valid gift, the transaction of gift would not be rendered invalid because it has been written on a plain piece of paper. The distinction that if a written deed of gift recites the factum of prior gift then such deed is not required to be registered but when the writing is contemporaneous with the making of the gift, it must be registered, is inappropriate and does not seem to be in conformity with the rule of gifts in Mohammadan Law. [para 29] [1176-H; 1177-A-C] 1.3. A deed of gift executed by a Mohammadan is not the instrument effecting, creating or making the gift but a mere piece of evidence; such writing is not a document of title but is a piece of evidence. [para 32] [1178-A-B] Mahboob Sahab v. Syed Ismail and others 1995 (2) SCR975= (1995) 3 SCC 693 – relied on. Nasib Ali v. Wajed Ali AIR 1927 Cal 197; Md. Hesabuddin and others v. Md. Hesaruddin and others AIR 1984 Gauhati 41; Jubeda Khatoon v. Moksed Ali AIR 1973 Gauhati 105; and Makku Rawther’s Children: Assan Ravther and others v. Manahapara Charayil AIR 1972 Kerala 27- approved. Inspector General of Registration and Stamps, Govt. of Hyderabad v. Smt. Tayyaba Begum AIR 1962 Andhra Pradesh 199; Sankesula Chinna Budde Saheb v. Raja Subbamma 1954 2 MLJ 113; Amirkhan v. Ghouse Khan (1985) 2 MLJ 136; Ghulam Ahmad Sofi v. Mohd. Sidiq Dareel and others AIR 1974 JammuAND Kashmir 59; and Chota Uddandu Sahib v. Masthan Bi (died) and others AIR 1975 Andhra Pradesh 271 – disapproved. Mohammad Abdul Ghani (since deceased)AND ANOTHERv. Fakhr Jahan BegamAND OTHERS 1922 (49) IA 195- referred to Mohammadan Law by Syed Ameer Ali; Mahomedan Law by Mulla, 19th Edition 5(pp.696-697); Asaf A. A. Fyzee in Outlines of Muhammadan Law, Fifth Edition (edited and revised by Tahir Mahmood) at page 182; and Mulla, Principles of Mahomedan Law (19th Edition), Page 120 -referred to. 2.1. Section 17(1)(a) of the Registration Act, 1908 leaves no manner of doubt that an instrument of gift of immoveable property requires registration irrespective of the value of the property. Section 123 of the Transfer of Property Act, 1882 lays down the manner in which gift of immoveable property may be effected and prescribes that transfer of immovable property by gift must be effected by a registered instrument. However, an exception is carved out in s. 129 of the T.P. Act with regard to the gifts by a Mohammadan. [para 14,15 and 18] [1164-B-E; 1166-A] 2.2. Section 129 of T.P. Act preserves the rule of Mohammadan Law and excludes the applicability of s. 123 of T.P. Act to a gift of an immovable property by a Mohammadan. It is not the requirement that in all cases where the gift deed is contemporaneous to the making of the gift then such deed must be registered u/s. 17 of the Registration Act. Each case would depend on its own facts. [para 31] [1177-F-G] 2.3. In the inastant case, the gift was made by the father of defendant no. 2 by a written deed dated 5.2.1968 in his favour in respect of the properties `A’ schedule and `B’ schedule appended thereto. The gift – as is recited in the deed – was based on love and affection for defendant no. 2 as after the death of donor’s wife, he has been looking after and helping him. Therefore, it cannot be said that because a declaration is reduced to writing, it must have been registered. The acceptance of the gift by defendant no 2 is also evidenced as he signed the deed. He was residing in the `B’ schedule property consisting of a house and a kitchen room appurtenant thereto and, thus, was in physical possession of residential house with the donor. The trial court on consideration of the entire evidence on record has recorded a categorical finding that the donor, executed the gift deed dated 5-2-1968 in favour of donee, the donee accepted the gift and the donor handed over the properties covered by the gift deed to the donee, and thus all the three essentials of a valid gift under the Mohammadan Law were satisfied. The view of the trial court is in accord with the legal position. The gift deed dated 5.2.1968 is a form of declaration by the donor and not an instrument of gift as contemplated u/s 17 of the Registration Act. As all the three essential requisites are satisfied by the gift deed dated 5.2.1968, the gift in favour of defendant 2 became complete and irrevocable. [para 34] [1178-G-H; 1179-A] 2.4. The High Court in the impugned judgment relied upon the Full Bench decision in the case of Tayyaba Begum which is not a correct view and does not lay down the correct law. The judgment and order passed by the High Court is set aside. The judgment and decree passed by the Principal Subordinate Judge is restored. [para 35-36] [1179-B-C] Case Law Reference: 1922 (49) IA 195 referred to para 12 1995 (2) SCR 975 relied on para 13 AIR 1927 Cal 197 approved para 19 1954 2 MLJ 113 disapproved para 20 AIR 1962 Andhra Pradesh 199 disapproved para 21 1972 Kerala 27 approved para 22 AIR 1974 JammuAND Kashmir 59 disapproved para 23 AIR 1975 Andhra Pradesh 271 disapproved para 24 (1985) 2 MLJ 136 disapproved para 27 AIR 1984 Gauhati 41 approved para 28 AIR 1973 Gauhati 105 approved para 28 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1714 of 2005. From the JudgmentAND Order dated 13.9.2004 of the High Court of Judicature, Andhra Pradesh at Hyderabad in First Appeal No. 1685 of 1988. A.K. Srivastav, G.R.K. Paramahamsa, Lokesh Kumar (for M.K.Garg) for the Appellants. V. Mohana for the Respondents.
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REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1714 OF 2005 Hafeeza Bibi & Ors. …. Appellants Versus Shaikh Farid (Dead) by LRs. & Ors. ….Respondents JUDGMENT R.M. Lodha, J. This appeal, by special leave, arises from the judgment of the High Court of Andhra Pradesh dated September 13, 2004 … Continue reading »
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- Mohammadan law: Hiba (gift) – Essential requisites of – Held: Are: (1) declaration of the gift by the donor, (2) acceptance of the gift by the donee and (3) delivery of possession -The rules of Mohammadan Law do not make writing essential to the validity of a gift and an oral gift fulfilling all the three essentials make the gift complete and irrevocable – However, the donor may record the transaction of gift in writing – In the instant case, as all the three essential requisites are satisfied by the gift deed – The gift in favour of defendant 2 became complete and irrevocable -Judgment of High Court set aside and that of trial court, holding the gift deed genuine and binding between the parties, restored -Transfer of Property Act – ss. 129 and 123. Transfer of Property Act, 1882: ss. 123 and 129 – Deed of gift executed by a Mohammadan – HELD: Is not the instrument effecting, creating or making the gift – Such writing is not a document of title but is a piece of evidence – Section 129 preserves the rule of Mohammadan Law and excludes the applicability of s. 123 to a gift of an immovable property by a Mohammadan – In the instant case, the gift deed is a form of declaration by the donor and not an instrument of gift as contemplated u/s 17 of the Registration Act – Registration Act, 1908 – s.17. In a suit for partition between the parties governed by Sunni Law, defendant no. 2 set up the defence that his father executed a hiba (gift deed) on 5.2.1968 and gifted his properties to him, and put him in possession of the hiba properties. The trial court held the hiba as true, valid and binding between the parties, and dismissed the suit. In the appeal, before the High Court it was contended for the plaintiffs that the gift deed dated 5-2-1968 being in writing was compulsorily required to be registered and stamped and in the absence thereof the gift deed could not be accepted and relied upon. The High Court allowed the appeal and remanded the matter to the trial court for passing a preliminary decree.=Allowing the appeal filed by heirs of defendant no.2, the Court HELD: 1.1. The position is well settled, which has been stated and restated time and again, that the three essentials of a gift under Mohammadan Law are: (1) declaration of the gift by the donor; (2) acceptance of the gift by the donee and (3) delivery of possession. The rules of Mohammadan Law do not make writing essential to the validity of a gift; and an oral gift fulfilling all the three essentials make the gift complete and irrevocable. However, the donor may record the transaction of gift in writing. [para 27] [1175-h; 1176-a-b] 1.2. Merely because the gift is reduced to writing by a Mohammadan instead of it having been made orally, such writing does not become a formal document or instrument of gift. When a gift could be made by Mohammadan orally, its nature and character is not changed because of it having been made by a written document. What is important for a valid gift under Mohammadan Law is that three essential requisites must be fulfilled. The form is immaterial. If all the three essential requisites are satisfied constituting a valid gift, the transaction of gift would not be rendered invalid because it has been written on a plain piece of paper. The distinction that if a written deed of gift recites the factum of prior gift then such deed is not required to be registered but when the writing is contemporaneous with the making of the gift, it must be registered, is inappropriate and does not seem to be in conformity with the rule of gifts in Mohammadan Law. [para 29] [1176-H; 1177-A-C] 1.3. A deed of gift executed by a Mohammadan is not the instrument effecting, creating or making the gift but a mere piece of evidence; such writing is not a document of title but is a piece of evidence. [para 32] [1178-A-B] Mahboob Sahab v. Syed Ismail and others 1995 (2) SCR975= (1995) 3 SCC 693 – relied on. Nasib Ali v. Wajed Ali AIR 1927 Cal 197; Md. Hesabuddin and others v. Md. Hesaruddin and others AIR 1984 Gauhati 41; Jubeda Khatoon v. Moksed Ali AIR 1973 Gauhati 105; and Makku Rawther’s Children: Assan Ravther and others v. Manahapara Charayil AIR 1972 Kerala 27- approved. Inspector General of Registration and Stamps, Govt. of Hyderabad v. Smt. Tayyaba Begum AIR 1962 Andhra Pradesh 199; Sankesula Chinna Budde Saheb v. Raja Subbamma 1954 2 MLJ 113; Amirkhan v. Ghouse Khan (1985) 2 MLJ 136; Ghulam Ahmad Sofi v. Mohd. Sidiq Dareel and others AIR 1974 JammuAND Kashmir 59; and Chota Uddandu Sahib v. Masthan Bi (died) and others AIR 1975 Andhra Pradesh 271 – disapproved. Mohammad Abdul Ghani (since deceased)AND ANOTHERv. Fakhr Jahan BegamAND OTHERS 1922 (49) IA 195- referred to Mohammadan Law by Syed Ameer Ali; Mahomedan Law by Mulla, 19th Edition 5(pp.696-697); Asaf A. A. Fyzee in Outlines of Muhammadan Law, Fifth Edition (edited and revised by Tahir Mahmood) at page 182; and Mulla, Principles of Mahomedan Law (19th Edition), Page 120 -referred to. 2.1. Section 17(1)(a) of the Registration Act, 1908 leaves no manner of doubt that an instrument of gift of immoveable property requires registration irrespective of the value of the property. Section 123 of the Transfer of Property Act, 1882 lays down the manner in which gift of immoveable property may be effected and prescribes that transfer of immovable property by gift must be effected by a registered instrument. However, an exception is carved out in s. 129 of the T.P. Act with regard to the gifts by a Mohammadan. [para 14,15 and 18] [1164-B-E; 1166-A] 2.2. Section 129 of T.P. Act preserves the rule of Mohammadan Law and excludes the applicability of s. 123 of T.P. Act to a gift of an immovable property by a Mohammadan. It is not the requirement that in all cases where the gift deed is contemporaneous to the making of the gift then such deed must be registered u/s. 17 of the Registration Act. Each case would depend on its own facts. [para 31] [1177-F-G] 2.3. In the inastant case, the gift was made by the father of defendant no. 2 by a written deed dated 5.2.1968 in his favour in respect of the properties `A’ schedule and `B’ schedule appended thereto. The gift – as is recited in the deed – was based on love and affection for defendant no. 2 as after the death of donor’s wife, he has been looking after and helping him. Therefore, it cannot be said that because a declaration is reduced to writing, it must have been registered. The acceptance of the gift by defendant no 2 is also evidenced as he signed the deed. He was residing in the `B’ schedule property consisting of a house and a kitchen room appurtenant thereto and, thus, was in physical possession of residential house with the donor. The trial court on consideration of the entire evidence on record has recorded a categorical finding that the donor, executed the gift deed dated 5-2-1968 in favour of donee, the donee accepted the gift and the donor handed over the properties covered by the gift deed to the donee, and thus all the three essentials of a valid gift under the Mohammadan Law were satisfied. The view of the trial court is in accord with the legal position. The gift deed dated 5.2.1968 is a form of declaration by the donor and not an instrument of gift as contemplated u/s 17 of the Registration Act. As all the three essential requisites are satisfied by the gift deed dated 5.2.1968, the gift in favour of defendant 2 became complete and irrevocable. [para 34] [1178-G-H; 1179-A] 2.4. The High Court in the impugned judgment relied upon the Full Bench decision in the case of Tayyaba Begum which is not a correct view and does not lay down the correct law. The judgment and order passed by the High Court is set aside. The judgment and decree passed by the Principal Subordinate Judge is restored. [para 35-36] [1179-B-C] Case Law Reference: 1922 (49) IA 195 referred to para 12 1995 (2) SCR 975 relied on para 13 AIR 1927 Cal 197 approved para 19 1954 2 MLJ 113 disapproved para 20 AIR 1962 Andhra Pradesh 199 disapproved para 21 1972 Kerala 27 approved para 22 AIR 1974 JammuAND Kashmir 59 disapproved para 23 AIR 1975 Andhra Pradesh 271 disapproved para 24 (1985) 2 MLJ 136 disapproved para 27 AIR 1984 Gauhati 41 approved para 28 AIR 1973 Gauhati 105 approved para 28 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1714 of 2005. From the JudgmentAND Order dated 13.9.2004 of the High Court of Judicature, Andhra Pradesh at Hyderabad in First Appeal No. 1685 of 1988. A.K. Srivastav, G.R.K. Paramahamsa, Lokesh Kumar (for M.K.Garg) for the Appellants. V. Mohana for the Respondents.
- Code of Civil Procedure, 1908: Section 100-Order 13 Rule 4 CPC-Suit for declaration of title, arrears of rent and possession of suit property-Appellant producing photocopies of the order of State Commissioner and rent agreement between appellant and tenant and the books of accounts in support of claiming his title-Trial court and first appellate court holding in favour of the appellant on the basis of oral and documentary evidence-High Court, in second appeal, reversing the concurrent findings on the ground that the documentary evidence are not originals-Validity of-Held, on facts, the High Court has wrongly framed the substantial questions of law on the assumption that the suit property belonged to the temple-The admission in evidence of photocopies cannot be questioned since no objections were raised by respondent at the time of, tendering them into evidence by the appellant-Respondent failed to discharge its onus to prove its title on suit property-Hence, High Court judgment set aside as no substantial question of law arose-Indian Evidence Act, 1872: Sections 34 AND 116. The property of defendant-respondent no. 1 temple was endowed by the forefathers of the plaintiff-appellant. The father of the appellant and thereafter the appellant were trustees of the temple and were managing the temple property. In 1968, the State Charity Commissioner appointed a new set of trustees and a Chief Executive Officer for the temple and removed the appellant from the trusteeship. The suit property, which is situated adjoining to the temple property, was let out on rent to defendant- respondent no. 2 by the appellant. Respondent no. 2 paid rent to the appellant till 1969. Thereafter, at the instance of respondent no. 1, respondent no. 2 issued a rent note in favour of the temple attorning the latter as the landlord of the suit property. Respondent no. 1 claimed the suit property on the basis of being part of the temple property. Appellant filed a suit for declaration of title, arrears of rent for three years immediately preceding the filing of the suit and possession of the suit property before Trial Court. Relying upon the oral and documentary evidences, the trial court decreed the suit in favour of the appellant. This was affirmed by the first appellate court. The High Court, in second appeal, reversed the findings of the courts below holding that no reliance could be placed upon the documentary evidence produced by the appellant before the lower courts. Citation: 2003 AIR 4548,2003(4 )Suppl.SCR450 ,2003(8 )SCC752 ,2003(8 )SCALE474 ,2004(6 )JT442=Allowing the appeal, the Court HELD: 1. A second appeal in the High Court can be entertained only on substantial questions of law and not otherwise. Instead of proceeding to decide the issues arising in the suit, the High Court assumed the second appellate jurisdiction by erroneously’ assuming the fact that property belongs to the temple, while framing the substantial questions of law. The question to be determined in the case was whether the appellant or the temple had the title to the suit property. The questions framed by the High Court did not arise as substantial questions of law based on the concurrent findings by the two courts below. The judgment of the High Court deserves to be set aside on this ground. [459-B-D] 2. Section 34 of the Indian Evidence Act, 1872 declares relevant the entries in the books of account regularly kept in the course of business whenever they refer to a matter into which the Court has to enquire. The courts of fact subordinate to the High Court, have not felt the need of any further corroboration before acting upon the entries in the ledger books made by the deceased father of the appellant. So far as the entries made by the appellant are concerned, he has deposed to making the entries and corroborated the same by his own statement. The appellant has been believed by the trial court and the first appellate court and his statement has been found to be enough corroboration of the entries made by him. No question of law arose as would enable the High Court to reverse that finding. The entries amply prove that for a length of time, upto the year 1959, the appellant’s deceased father, and then the appellant was collecting the rent of the suit property claiming to be the landlord from respondent no. 2 inducted as tenant by them. They were in possession of the suit property through their tenant, respondent no. 2. The High Court has erred in ruling out the books from consideration on the ground that the same were not duly maintained or were not proved in the absence of the maker having stepped in the witness box. [460-E-H, 461-A, B] 3.1 An objection as to the admissibility of evidence should be taken ordinarily when it is tendered and not subsequently. An objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure, the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. A failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. [463-G, 464-B-F] Padman AND OTHERS v. Hanwanta AND OTHERS , AIR (1915) PC 111 and P.C. Purushottama Reddiar v. S. Perumal, [1992] 2 SCR 646, referred to. The Roman Catholic Mission v. The State of Madras AND ANOTHER , AIR (1966) SC 1457, distinguished. 3.2 The photocopy of the order passed by the Assistant Commissioner and the photocopy of the rent agreement between the appellant and the tenant- respondent were admitted in evidence without any objection by the two courts below. The High Court erred in holding these documents inadmissible being photocopies and the originals of the same were not produced. None of the two courts below appeared to have felt any difficulty in reading the documents and understanding and appreciating its contents. The High Court, if it felt any difficulty in comfortably reading of the photocopies, should have said so at the time of hearing and afforded the parties an opportunity of either producing the originals or a readable copies of the documents. Nothing such was done. The High Court has not even doubted the factum of the contents of the documents having been read by the two courts below, drawn deductions therefrom and based their finding of facts on the documents as well. [465-G-H, 466-A] 3.3 The photocopy of the certified copy of the order passed by the Assistant Commissioner H.R. and C.E. (Admn.) Department in exercise of its jurisdiction under section 63 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 held that the temple is not the owner of the suit property. This has become final. The photocopy of the order was marked as an exhibit without any objection by the temple respondent An order of the Charity Commissioner is not per se the evidence of title inasmuch as the Charity Commissioner is not, under the law, competent to adjudicate upon questions of title relating to immovable property which determination lies within a domain of a civil court. However, still the order has relevance as evidence to show that the property forming subject matter of the order of the Charity Commissioner was claimed by the temple to be its own property. The temple failed in proving its claim. Consequence of this would be that the attornment by the tenant-respondent in favour of the temple during the continuance of tenancy was not valid. The tenant could not attorn to the temple treating the latter to be the owner since he was inducted by the appellant and the estoppel flowing from Section 116 of the Indian Evidence Act, 1872 operated against him. [462-E-F] 3.4 In the property tax register, the appellant and his predecessOTHERS were shown to be the owners of the suit property. An entry in the municipal record is not evidence of title. The entry shows the person who is liable to pay rates and taxes to the municipality. If the property belonged to the temple, the temple would have taken steps for having its own name mutated into the municipal records and paid taxes or claimed exemption from payment of taxes, which was not done. The temple has not been able to produce any evidence, oral or documentary, to prove its title to the suit property. The attornment by the tenant in favour of the temple and payment of rent to the temple after 1969 or the payment of the property tax by the temple to the municipal authorities after 1969 does not establish the title to the temple of the suit property. These documents are not of much evidentiary value as these documents came into existence only after the dispute had arisen between the parties. In the absence of any other lawful claimant, the appellant, on the strength of the documents produced, was rightly held to be the owner by the courts below the High Court. The attornment by the tenant in favour of the temple was also rightly held to be invalid. The appellant would, therefore, be entitled to recover possession of the suit property and the arrears of rent. [466-E-H, 467-A-C] 4.1 In a suit for recovery of possession based on title, it is for the plaintiff to prove his title and satisfy the Court that he, in law, is entitled to dispossess the defendant from his possession over the suit property and for the possession to be restored with him. There is an essential distinction between burden of proof and onus of proof. Burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In a suit for possession based on title, once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant, it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiffs title. [468-D-F] Raghavamma AND ANOTHER v. Chenchamma ANOTHER , AIR (1964) SC 136, relied on. Bater v. B., [1950] 2 All ER 458 and Hornal v. Neuberger P. Ltd., [1956] 3 All ER 970, referred to. Sarkar on Evidence 15th Edition, referred to. 4.2. The appellant-plaintiff has not been able to produce any deed of title directly lending support to his claim for title of the suit property. The respondent-defendant temple too has no proof of its title. Being a civil case, the plaintiff cannot be expected to prove his title beyond any reasonable doubt. A high degree of probability lending assurance of the availability of title with the plaintiff would be enough to shift the onus on the defendant and if the defendant does not succeed in shifting back, the onus, the plaintiffs burden of proof can safely be deemed to have been discharged. The appellant had succeeded in shifting the onus on the respondent temple and therefore the burden of proof, which lay on the appellant, had stood discharged. The High Court, in exercise of its limited jurisdiction under section 100 CPC, ought not to have entered into the evaluation of evidence afresh. The High Court has interfered with a pure and simple finding of fact based on appreciation of oral and documentary evidence which the High Court ought not to have done. [468-G-H, 469-A, B] 4.3. No question of law much less a substantial question of law arose in the case worth being gone into by the High Court in exercise of its second appellate jurisdiction under Section 100 CPC. The High Court was bound by the findings of fact arrived at by the two courts below and should not have entered into the exercise of re-appreciating and evaluating the evidence’. The findings of fact arrived at by the courts below did not suffer from any perversity. There was no non-reading or mis-reading of the evidence. A high degree of preponderance of probability proving title to the suit property was raised in favour of the appellant and the courts below rightly concluded the burden of proof raised on the plaintiff having been discharged while the onus shifting on the defendant remaining undischarged. [470-C-E] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 10585 of 1996.
- Court Fees Act, 1870 – s. 7(iv)(c) and (v) – Court fee – Computation of – In suits for a declaratory decree and consequential benefits – Filing of civil suit – Prayer for declaration that sale deed not binding on co- parcenary and for joint possession and court fee paid u/s. 7(iv)(c) – Courts below holding that the prayer was to seek cancellation of sale deeds and thus, court fee to be paid on the sale consideration mentioned in sale deeds – On appeal, held: Prayer was not for cancellation of sale deed but for a declaration that sale deed not binding on co-parcenary and for joint possession – Plaintiff was non-executant of sale deed – Thus, court fee was computable u/s. 7(iv)(c) – Orders of courts below set aside. The question which arose for consideration in these appeals is as to what is the court fee payable in regard to the prayer for a declaration that the sale deeds were void and not `binding on the co-parcenary’, and for the consequential relief of joint possession and injunction.= Allowing the appeals, the Court HELD: 1.1 Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non-est, or illegal or that it is not binding on him. There is a difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance. In essence in both the cases parties may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If the executant of the deed seeks cancellation of the deed, he has to pay ad-valorem court fee on the consideration stated in the sale deed. If the non-executant is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of Second Schedule of the Court Fees Act, 1870. But if the non-executant is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad-valorem court fee as provided under section 7(iv)(c) of the Act. Section 7(iv)(c) of the Act provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of section 7. [Para 6] 1.2. In the instant case, there is no prayer for cancellation of the sale deeds. The prayer is for a declaration that the deeds do not bind the “co- parcenery” and for joint possession. The plaintiff in the suit was not the executant of the sale deeds. Therefore, the court fee was computable under section 7(iv)(c) of the Act. The trial court and the High Court were not justified in holding that the effect of the prayer was to seek cancellation of the sale deeds and therefore, court fee had to be paid on the sale consideration mentioned in the sale deeds. Thus, the orders of the trial court and the High Court directing payment of court fee on the sale consideration under the sale deeds are set aside and trial court is directed to calculate the court fee in accordance with section 7(iv)(c) read with section 7(v) of the Act. [Paras 7 and 8] CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 2811-2813 of 2010. From the Judgment AND Order dated 19.3.2007 order dated 11.2.2008 and 16.5.2008 passed by the High Court of Punjab and Haryana at Chandigarh in CR No. 1482/2007 and RA No. 35 CII/2007 in Civil Revision No. 1482/2007 and C.M. No. #9445-C-II/2008 in C.M.#7001-C-II/2008 in R.A. 35-C-II/2007 in Civil Reivision #1482/2007. Suhrid Singh appellant in person. Labh Singh Bhangu and Madhu Moolchandani for the Respondent.
- Each human gene is encoded as deoxyribonucleic acid (DNA), which takes the shape of a “double helix.” Each “cross-bar” in that helix consists of two chemically joined nucleotides. Sequences of DNA nucleotides contain the information necessary to create strings of amino acids used to build proteins in the body. The nucleotides that code for amino acids are “exons,” and those that do not are “introns.” Scientists can extract DNA from cells to isolate specific segments for study. They can also synthetically create exons-only strands of nucleotides known as complementary DNA (cDNA). cDNA contains only the exons that occur in DNA, omitting the intervening introns. Respondent Myriad Genetics, Inc. (Myriad), obtained several patents after discovering the precise location and sequence of the BRCA1 and BRCA2 genes, mutations of which can dramatically increase the risk of breast and ovarian cancer. This knowledge allowed Myriad to determine the genes’ typical nucleotide sequence, which, in turn, enabled it to develop medical tests useful for detecting mutations in these genes in a particular patient to assess the patient’s cancer risk. If valid, Myriad’s patents would give it the exclusive right to isolate an individual’s BRCA1 and BRCA2 genes, and would give Myriad the exclusive right to synthetically create BRCA cDNA. Petitioners filed suit, seeking a declaration that Myriad’s patents are invalid under 35 U. S. C. §101. As relevant here, the District Court granted summary judgment to petitioners, concluding that Myriad’s claims were invalid because they covered products of nature. The Federal Circuit initially reversed, but on remand in light of Mayo Collaborative Services v. Prometheus Laboratories, Inc., 566 U. S. ___, the Circuit found both isolated DNA and cDNA patent eligible. 2 ASSOCIATION FOR MOLECULAR PATHOLOGY v. MYRIAD GENETICS, INC. Syllabus Held: A naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated, but cDNA is patent eligible because it is not naturally occurring. Pp. 10–18. (a) The Patent Act permits patents to be issued to “[w]hoever invents or discovers any new and useful . . . composition of matter,” §101, but “laws of nature, natural phenomena, and abstract ideas” “ ‘are basic tools of scientific and technological work’ ” that lie beyond the domain of patent protection, Mayo, supra, at ___. The rule against patents on naturally occurring things has limits, however. Patent protection strikes a delicate balance between creating “incentives that lead to creation, invention, and discovery” and “imped[ing] the flow of information that might permit, indeed spur, invention.” Id., at ___. This standard is used to determine whether Myriad’s patents claim a “new and useful . . . composition of matter,” §101, or claim naturally occurring phenomena. Pp. 10–11. (b) Myriad’s DNA claim falls within the law of nature exception. Myriad’s principal contribution was uncovering the precise location and genetic sequence of the BRCA1 and BRCA2 genes. Diamond v. Chakrabarty, 447 U. S. 303, is central to the patent-eligibility inquiry whether such action was new “with markedly different characteristics from any found in nature,” id., at 310. Myriad did not create or alter either the genetic information encoded in the BCRA1 and BCRA2 genes or the genetic structure of the DNA. It found an important and useful gene, but groundbreaking, innovative, or even brilliant discovery does not by itself satisfy the §101 inquiry. See Funk Brothers Seed Co. v. Kalo Inoculant Co., 333 U. S. 127. Finding the location of the BRCA1 and BRCA2 genes does not render the genes patent eligible “new . . . composition[s] of matter,” §101. Myriad’s patent descriptions highlight the problem with its claims: They detail the extensive process of discovery, but extensive effort alone is insufficient to satisfy §101’s demands. Myriad’s claims are not saved by the fact that isolating DNA from the human genome severs the chemical bonds that bind gene molecules together. The claims are not expressed in terms of chemical composition, nor do they rely on the chemical changes resulting from the isolation of a particular DNA section. Instead, they focus on the genetic information encoded in the BRCA1 and BRCA2 genes. Finally, Myriad argues that the Patent and Trademark Office’s past practice of awarding gene patents is entitled to deference, citing J. E. M. Ag Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U. S. 124, a case where Congress had endorsed a PTO practice in subsequent legislation. There has been no such endorsement here, and the United States argued in the Federal Circuit and in this Court that isolated DNA was not patent eligible under §101. Pp. 12–16. Cite as: 569 U. S. ____ (2013) 3 Syllabus (c) cDNA is not a “product of nature,” so it is patent eligible under §101. cDNA does not present the same obstacles to patentability as naturally occurring, isolated DNA segments. Its creation results in an exons-only molecule, which is not naturally occurring. Its order of the exons may be dictated by nature, but the lab technician unquestionably creates something new when introns are removed from a DNA sequence to make cDNA. Pp. 16–17. (d) This case, it is important to note, does not involve method claims, patents on new applications of knowledge about the BRCA1 and BRCA2 genes, or the patentability of DNA in which the order of the naturally occurring nucleotides has been altered. Pp. 17–18. 689 F. 3d 1303, affirmed in part and reversed in part.
- Federal Rule of Criminal Procedure 11 governs guilty pleas. Rule 11(c)(1) instructs that “[t]he court must not participate in [plea] discussions,” and Rule 11(h) states that a “variance from the requirements of th[e] rule is harmless error if it does not affect substantial rights.” Rule 52(a), which covers trial court errors generally, similarly prescribes: “Any error . . . that does not affect substantial rights must be disregarded.” Respondent Davila, while under indictment on multiple tax fraud charges, wrote to the District Court, expressing dissatisfaction with his court-appointed attorney. Complaining that his attorney offered no defensive strategy, but simply advised him to plead guilty, Davila requested new counsel. A Magistrate Judge held an in camera hearing at which Davila and his attorney, but no representative of the United States, appeared. At the hearing, the Magistrate Judge told Davila that he would not get another court-appointed attorney and that his best course, given the strength of the Government’s case, was to plead guilty. More than three months later, Davila pleaded guilty to a conspiracy charge in exchange for dismissal of 33 other charges. He stated under oath before a U. S. District Judge that he had not been forced or pressured to enter the plea, and he did not mention the in camera hearing before the Magistrate Judge. Prior to sentencing, however, Davila moved to vacate his plea and dismiss the indictment, asserting that he had entered the plea for a “strategic” reason, i.e., to force the Government to acknowledge errors in the indictment. Finding that Davila’s plea had been knowing and voluntary, the District Judge denied the motion. Again, Davila said nothing of the in camera hearing conducted by the Magistrate Judge. On appeal, the Eleventh Circuit, following Circuit precedent, held that 2 UNITED STATES v. DAVILA Syllabus the Magistrate Judge’s violation of Rule 11(c)(1) required automatic vacatur of Davila’s guilty plea, obviating any need to inquire whether the error was prejudicial. Held: Under Rule 11(h), vacatur of the plea is not in order if the record shows no prejudice to Davila’s decision to plead guilty. Pp. 7–14. (a) Rule 11(c)(1)’s prohibition of judicial involvement in plea discussions was included in the 1974 Amendment to the Rule out of concern that a defendant might be induced to plead guilty rather than risk antagonizing the judge who would preside at trial. Rule 11(h) was added in the 1983 Amendment to make clear that Rule 11 errors are not excepted from Rule 52(a)’s harmless-error inquiry. Rule 52 also states, in subsection (b), that a “plain error that affects substantial rights may be considered even though it was not brought to the [trial] court’s attention.” When Rule 52(a) governs, the prosecution has the burden of showing harmlessness, but when Rule 52(b) controls, the defendant must show that the error affects substantial rights. See United States v. Vonn, 535 U. S. 55, 62. As clarified in Vonn and United States v. Dominguez Benitez, 542 U. S. 74, Rule 11 error may be of the Rule 52(a) type or the Rule 52(b) kind, depending on when the error was raised. In Vonn, the judge who conducted the plea hearing failed to inform the defendant, as required by Rule 11(c)(3), that he would have “the right to the assistance of counsel” if he proceeded to trial. The defendant first objected to the omission on appeal. This Court held that “a silent defendant has the burden to satisfy [Rule 52(b)’s] plain-error rule.” 535 U. S., at 59. In Dominguez Benitez, the error first raised on appeal was failure to warn the defendant, as Rule 11(c)(3)(B) instructs, that a plea could not be withdrawn even if the sentence imposed was higher than the plea-bargained sentence recommendation. The Court again held that Rule 52(b) controlled, and prescribed the standard a defendant silent until appeal must meet to show “plain error,” namely, “a reasonable probability that, but for the [Rule 11] error, he would not have entered the plea.” 542 U. S., at 83. Pp. 7–9. (b) Here, the Magistrate Judge plainly violated Rule 11(c)(1) by exhorting Davila to plead guilty. Davila contends that automatic vacatur, while inappropriate for most Rule 11 violations, should attend conduct banned by Rule 11(c)(1). He distinguishes plea-colloquy omissions, i.e., errors of the kind involved in Vonn and Dominguez Benitez, from pre-plea exhortations to admit guilt. The former come into play after a defendant has decided to plead guilty, the latter, before a defendant has decided to plead guilty or to stand trial. Nothing in Rule 11’s text, however, indicates that the ban on judicial involvement in plea discussions, if dishonored, demands automatic vacatur without regard to case-specific circumstances. Nor does the Advisory Cite as: 569 U. S. ____ (2013) 3 Syllabus Committee commentary single out any Rule 11 instruction as more basic than others. And Rule 11(h), specifically designed to stop automatic vacaturs, calls for across-the-board application of the harmless-error prescription (or, absent prompt objection, the plain-error rule). Rule 11(c)(1) was adopted as a prophylactic measure, not one impelled by the Due Process Clause or any other constitutional requirement. Thus, violation of the Rule does not belong in the highly exceptional category of structural errors—e.g., denial of counsel of choice or denial of a public trial—that trigger automatic reversal because they undermine the fairness of the entire criminal proceeding. United States v. Marcus, 560 U. S. 258, ___. Instead, in assessing Rule 11 errors, a reviewing court must take account of all that transpired in the trial court. Had Davila’s guilty plea followed soon after the Magistrate Judge’s comments, the automatic-vacatur rule would have remained erroneous. The Court of Appeals’ mistake in that regard, however, might have been inconsequential, for the Magistrate Judge’s exhortations, if they immediately elicited a plea, would likely have qualified as prejudicial. Here, however, three months distanced the in camera meeting conducted by the Magistrate Judge from Davila’s appearance before the District Judge who examined and accepted his guilty plea after an exemplary Rule 11 colloquy, at which Davila had the opportunity to raise any questions he might have about matters relating to his plea. The Court of Appeals, therefore, should not have assessed the Magistrate Judge’s comments in isolation. Instead, it should have considered, in light of the full record, whether it was reasonably probable that, but for the Magistrate Judge’s comments, Davila would have exercised his right to go to trial. Pp. 10– 14. (c) The Court of Appeals, having concluded that the Magistrate Judge’s comments violated Rule 11(c)(1), cut off further consideration. It did not engage in a full-record assessment of the particular facts of Davila’s case or the case-specific arguments raised by the parties, including the Government’s assertion that Davila was not prejudiced by the Magistrate Judge’s comments, and Davila’s contention that the extraordinary circumstances his case presents should allow his claim to be judged under Rule 52(a)’s harmless-error standard rather than Rule 52(b)’s plain-error standard. The Court decides only that the automatic-vacatur rule is incompatible with Rule 11(h) and leaves all remaining issues to be addressed on remand. P. 14. 664 F. 3d 1355, vacated and remanded.
- The Red River Compact (or Compact) is a congressionally sanctioned agreement that allocates water rights within the Red River basin among the States of Oklahoma, Texas, Arkansas, and Louisiana. The area it governs is divided into five separate subdivisions called “Reaches,” each of which is further divided into smaller “subbasins.” At issue here are rights under the Compact to water located in Oklahoma’s portion of Reach II, subbasin 5. In Reach II, the Compact— recognizing that Louisiana lacks suitable reservoir sites to store water during high flow periods and that the upstream States (Texas, Oklahoma, and Arkansas) were unwilling to release their own stored water for the benefit of a downstream State—granted control over the water in four upstream subbasins (subbasins 1 through 4) to the States in which each subbasin is located and required that water in a fifth subbasin, subbasin 5, be allowed to flow to Louisiana at certain minimum levels. Section 5.05(b)(1) of the Compact gives the States “equal rights” to the use of subbasin 5’s waters when the flow is 3,000 cubic feet per second (CFS) or more, “provided no state is entitled to more than 25 percent of the water in excess of 3,000 [CFS].” Under the Compact, States are also entitled to continue with their intrastate water administration. Petitioner Tarrant Regional Water District (Tarrant) is a Texas state agency responsible for providing water to north-central Texas and its rapidly growing population. After unsuccessfully attempting to purchase water from Oklahoma and others, Tarrant sought a water resource permit from the Oklahoma Water Resources Board (OWRB), respondents here, to take surface water from a tributary of the Red River at a point located in Oklahoma’s portion of subbasin 5 2 TARRANT REGIONAL WATER DIST. v. HERRMANN Syllabus of Reach II. Knowing that the OWRB would likely deny its permit application because of Oklahoma water laws that effectively prevent out-of-state applicants from taking or diverting water from within Oklahoma’s borders, Tarrant filed suit in federal court simultaneously with its permit application, seeking to enjoin the OWRB’s enforcement of the state statutes on grounds that they were pre-empted by federal law in the form of the Compact and violated the Commerce Clause by discriminating against interstate commerce in water. The District Court granted summary judgment for the OWRB, and the Tenth Circuit affirmed. Held: 1. The Compact does not pre-empt the Oklahoma water statutes. Pp. 9–22. (a) Tarrant claims that §5.05(b)(1) creates a borderless common in subbasin 5 in which each of the signatory States may cross each other’s boundaries to access a shared pool of water. Tarrant observes that §5.05(b)(1)’s “equal rights” language grants each State an equal entitlement to subbasin 5’s waters, subject to a 25 percent cap, and argues that its silence concerning state lines indicates that the Compact’s drafters did not intend the provision to allocate water according to state borders. The OWRB counters that §5.05(b)(1)’s “equal rights” afford each State an equal opportunity to use subbasin 5’s excess water within each State’s own borders, but that its silence on cross-border rights indicates that the Compact’s drafters had no intention to create any such rights in the signatory States. Pp. 9–11. (b) Because interstate compacts are construed under contractlaw principles, see Texas v. New Mexico, 482 U. S. 124, 128, the Court begins by examining the Compact’s express terms as the best indication of the parties’ intent. However, §5.05(b)(1)’s silence is, at the very least, ambiguous regarding cross-border rights under the Compact, so the Court turns to other interpretive tools to shed light on the drafters’ intent. Three things persuade the Court that the Compact did not grant cross-border rights: the well-established principle that States do not easily cede their sovereign powers; the fact that other interstate water compacts have treated cross-border rights explicitly; and the parties’ course of dealing. Pp. 11–22. (1) The sovereign States possess an “absolute right to all their navigable waters and the soils under them for their own common use.” Martin v. Lessee of Waddell, 16 Pet. 367, 410. So, for example, “ ‘[a] court deciding a question of title to [a] bed of navigable water [within a State’s boundaries] must . . . begin with a strong presumption’ against defeat of a State’s title.” United States v. Alaska, 521 U. S. 1, 34. It follows, then, that “[i]f any inference at all is to be drawn from” silence in compacts touching on the States’ authority to Cite as: 569 U. S. ____ (2013) 3 Syllabus control their waters, “it is that each State was left to regulate the activities of her own citizens.” Virginia v. Maryland, 540 U. S. 56, 67. Tarrant contends that §5.05(b)(1)’s silence infers that the signatory States dispensed with the core state prerogative to control water within its borders. But since States rarely relinquish their sovereign powers, the better understanding is that there would be a clear indication of such devolution, not inscrutable silence. Tarrant counters that its interpretation would not intrude on any sovereign prerogative of Oklahoma, which would retain its authority to regulate the water within its borders. But adopting Tarrant’s reading would necessarily entail assuming that Oklahoma and three other States silently surrendered substantial control over their waters when they agreed to the Compact. Pp. 14–16. (2) Looking to the customary practices employed in other interstate compacts also helps in ascertaining the parties’ intent. See, e.g., Alabama v. North Carolina, 560 U. S. 330, ___. Many compacts feature unambiguous language permitting signatory States to cross each other’s borders to fulfill obligations under the compacts, and many provide for the terms and mechanics of how such relationships will operate. The absence of comparable provisions in the Red River Compact strongly suggests that cross-border rights were never intended to be part of the agreement. Tarrant claims that not all interstate compacts have such explicit language, but cites only one such compact, and even it sets out a detailed scheme that would apply to any contemplated diversions. Similarly, even if §2.05(d) of the Compact, which gives “[e]ach Signatory State . . . the right to” “[u]se the bed and banks of the Red River and its tributaries to convey stored water, imported or exported water, and water apportioned according to this Compact,” is read to establish cross-border diversions, it does so through express language, not through an inference from silence. Pp. 16–20. (3) The parties’ conduct under the Compact also undermines Tarrant’s position. See Alabama v. North Carolina, 560 U. S., at ___. Once the Compact was approved in 1980, no signatory State pressed for a cross-border diversion until Tarrant filed suit in 2007. And Tarrant’s earlier offer to purchase water from Oklahoma was a strange decision if Tarrant believed the Compact entitled it to demand water without payment. Nor is there any indication that Tarrant, any other Texas agency, or Texas itself previously made any mention of cross-border rights within the Compact; and none of the other signatory States has ever made such a claim. P. 20. (4) Tarrant’s remaining arguments—that its interpretation is necessary to realize the “structure and purpose of Reach II”; and that §5.05(b)(1)’s 25 percent cap on each State’s access to subbasin 5’s ex-4 TARRANT REGIONAL WATER DIST. v. HERRMANN Syllabus cess water implies that if a State cannot access sufficient water within its borders to meet the cap, it must be able to cross borders to reach that water—are unpersuasive. Pp. 20–22. 2. The Oklahoma water statutes also do not run afoul of the Commerce Clause. Tarrant claims that the statutes discriminate against interstate commerce by preventing water left unallocated under the Compact from being distributed out of State. But Tarrant’s assumption that some water is left “unallocated” is incorrect. The interpretive comment for Article V of the Compact makes clear that when the flow is above 3,000 CFS, “all states are free to use whatever amount of water they can put to beneficial use,” subject to the requirement that if the amount of available water cannot satisfy all of those uses, “each state will honor the other’s right to 25% of the excess flow.” If more than 25 percent of subbasin 5’s water is located in Oklahoma, that water is not “unallocated”; rather, it is allocated to Oklahoma unless and until another State calls for an accounting and Oklahoma is asked to refrain from utilizing more than its entitled share. Pp. 22–24. 656 F. 3d 1222, affirmed.
- The Port of Los Angeles, a division of the City of Los Angeles, is run by a Board of Harbor Commissioners pursuant to a municipal ordinance known as a tariff. The Port leases marine terminal facilities to operators that load cargo onto and unload it from docking ships. Federally licensed short-haul trucks, called “drayage trucks,” assist in those operations by moving cargo into and out of the Port. In 2007, in response to community concerns over the impact of a proposed port expansion on traffic, the environment, and safety, the Board implemented a Clean Truck Program. As part of that program, the Board devised a standard-form “concession agreement” to govern the relationship between the Port and drayage companies. The agreement requires a company to affix a placard on each truck with a phone number for reporting concerns, and to submit a plan listing off-street parking locations for each truck. Other requirements relate to a company’s financial capacity, its maintenance of trucks, and its employment of drivers. The concession agreement sets out penalties for violations, including possible suspension or revocation of the right to provide drayage services. The Board also amended the Port’s tariff to ensure that every drayage company would enter into the agreement. The amended tariff makes it a misdemeanor, punishable by fine or imprisonment, for a terminal operator to grant access to an unregistered drayage truck. Petitioner American Trucking Associations, Inc. (ATA), whose members include many of the drayage companies at the Port, sued the Port and City, seeking an injunction against the concession agreement’s requirements. ATA principally contended that the requirements are expressly preempted by the Federal Aviation Admin-2 AMERICAN TRUCKING ASSNS., INC. v. LOS ANGELES Syllabus istration Authorization Act of 1994 (FAAAA), see 49 U. S. C. §14501(c)(1). ATA also argued that even if the requirements are valid, Castle v. Hayes Freight Lines, Inc., 348 U. S. 61, prevents the Port from enforcing the requirements by withdrawing a defaulting company’s right to operate at the Port. The District Court held that neither §14501(c)(1) nor Castle prevented the Port from proceeding with its program. The Ninth Circuit mainly affirmed, finding only the driveremployment provision preempted and rejecting petitioner’s Castle claim. Held: 1. The FAAAA expressly preempts the concession agreement’s placard and parking requirements. Section 14501(c)(1) preempts a state “law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier . . . with respect to the transportation of property.” 49 U. S. C. §14501(c)(1). Because the parties agree that the Port’s placard and parking requirements relate to a motor carrier’s price, route, or service with respect to transporting property, the only disputed question is whether those requirements “hav[e] the force and effect of law.” Section 14501(c)(1) draws a line between a government’s exercise of regulatory authority and its own contract-based participation in a market. The statute’s “force and effect of law” language excludes from the clause’s scope contractual arrangements made by a State when it acts as a market participant, not as a regulator. See, e.g., American Airlines, Inc. v. Wolens, 513 U. S. 219, 229. But here, the Port exercised classic regulatory authority in imposing the placard and parking requirements. It forced terminal operators—and through them, trucking companies—to alter their conduct by implementing a criminal prohibition punishable by imprisonment. That counts as action “having the force and effect of law” if anything does. The Port’s primary argument to the contrary focuses on motives rather than means. But the Port’s proprietary intentions do not control. When the government employs a coercive mechanism, available to no private party, it acts with the force and effect of law, whether or not it does so to turn a profit. Only if it forgoes the (distinctively governmental) exercise of legal authority may it escape §14501(c)(1)’s preemptive scope. That the criminal sanctions fall on terminal operators, not directly on the trucking companies, also makes no difference. See, e.g., Rowe v. New Hampshire Motor Transp. Assn., 552 U. S. 364, 371–373. Pp. 6−10. 2. This Court declines to decide in the case’s present, preenforcement posture whether Castle limits the way the Port can enforce the financial-capacity and truck-maintenance requirements upheld by the Ninth Circuit. Castle rebuffed a State’s attempt to bar a Cite as: 569 U. S. ____ (2013) 3 Syllabus federally licensed motor carrier from its highways for past infringements of state safety regulations. But Castle does not prevent a State from taking off the road a vehicle that is contemporaneously out of compliance with such regulations. And at this juncture, there is no basis for finding that the Port will actually use the concession agreement’s penalty provision as Castle proscribes. Pp. 10−12. 660 F. 3d 384, reversed in part and remanded.
- 13 June 2013 PRESS SUMMARY O’Neill No 2 (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland) Lauchlan (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland) [2013] UKSC 36 On appeal from: [2012] HCJAC 51; [2012] HCJAC 20 JUSTICES: Lord Hope (Deputy President), Lord Kerr, Lord Wilson, Lord Hughes and Lord Toulson BACKGROUND TO THE APPEALS The issues in these appeals relate to the right to a fair trial. Alison McGarrigle had a son, Robert, by her former husband. Robert was subject to a residential supervision order requiring him to live with his father during the week but permitted him to visit his mother on Saturdays. On 14 June 1997 Robert did not return to his father’s address and instead he and his mother went to live with the appellants in a house in Largs. A drinking session took place there on or about the 20 June 1997 at which a number of people including the appellants, Robert and Mrs McGarrigle were present. The next morning she was gone and was never seen by Robert again. She was reported to police as missing on 16 February 1998. The investigation continued but in the meantime, on 17 June 1998, the appellants were convicted of sexual offences including offences against Robert McGarrigle and were sentenced to 6 and 8 years imprisonment respectively. Whilst serving their sentences the appellants were taken by police for questioning on suspicion of conspiracy to murder Alison McGarrigle. They were asked by the officers whether they were involved in her murder, but they both remained silent. Owing to a lack of evidence at that time, proceedings were not commenced against the pair. The appellants were eventually charged in 2005 for the murder of Mrs McGarrigle and remanded in custody. On 10 June 2010 the appellants were found guilty in the High Court of Justiciary at Glasgow of the murder of Mrs Allison McGarrigle between 21 June and 1 September 1997 and of a subsequent attempt to defeat the ends of justice by disposing of her body in the sea. In a separate trial held immediately before, the appellants were found guilty of a series of sexual offences relating to children. Both trials took place in front of the same judge, Lord Pentland, but with different juries. After the verdict in the first trial the Advocate Depute moved for sentence and handed the judge a list of the appellants’ previous convictions. The judge reserved sentencing for the sexual offences until after the trial for murder was complete. At the time of informing the appellants of this, the judge referred to their records and made comments to them that they were ‘evil, determined, manipulative and predatory paedophiles of the worst sort’. The two issues for the Supreme Court were: (1) when the appellants were ‘charged’ for the purposes of their right to a trial within a reasonable time in terms of article 6(1) of the Convention (the appellants argued that time started to run when they were first questioned in 1998 and therefore there had been a breach of their right); and (2) whether the comments and conduct of the trial judge were such as to breach the appellants’ right to a fair trial by an impartial tribunal in terms of article 6(1) of the Convention and, if so, whether the act of the Lord Advocate in persevering with the trial was The Supreme Court of the United Kingdom Parliament Square London SW1P 3BD T: 020 7960 1886/1887 F: 020 7960 1901 www.supremecourt.gov.ukincompatible with the appellants’ rights under article 6(1). Both issues arose from the refusal of the Appeal Court to grant leave for the relevant grounds of appeal to be argued in the appeal in Scotland. The Appeal Court did however grant permission to appeal its refusal to the Supreme Court. The Supreme Court held that it had jurisdiction to consider the issues on the basis that they were compatibility issues in terms of the Criminal Procedure (Scotland) Act 1995 (as amended by the Scotland Act 2012), issue (1) being an appeal against a decision of the Appeal Court and issue (2) being a reference from the Appeal Court. JUDGMENT The court determines the two compatibility issues as follows: (1) that the date when the reasonable time began for the purposes of the appellants’ article 6(1) Convention right was 5 April 2005; and (2) that the Lord Advocate’s act in proceeding with the trial on the murder charges was not incompatible with the appellants’ article 6(1) right to a trial before a tribunal that was independent and impartial. The proceedings will be remitted to the High Court of Justiciary [58]. Lord Hope gives the judgment of the court. REASONS FOR THE JUDGMENT References in square brackets are to paragraphs in the judgment The meaning of the word ‘charged’ has been considered in a number of cases regarding article 6(1), which provides that in the determination of any “criminal charge against him” a person has the right to a fair trial within a reasonable time and article 6(3)(c) which provides a right to legal assistance for anyone “charged with a criminal offence” [25-32]. The focus of article 6(3)(c) is on the state of affairs when the suspect is first interrogated, as to wait until the stage is reached when there is sufficient evidence to charge before the suspect has the right of access to a lawyer could seriously prejudice his right to a fair trial. This is in contrast with the reasonable time guarantee of article 6(1): it relates to the running of time, not on what is needed to preserve the right to a fair trial. The rationale is the person should not remain too long in a state of uncertainty. Time runs from the date which the suspect’s position is substantially affected by the official notification. In the United Kingdom this could be some time after he is first questioned [33-34]. The date from which reasonable time begins is the subject of a separate guarantee from the guarantee that the trial will be fair and falls to be approached independently [36]. The appellants were certainly not at any stage of their interviews “charged” in the formal sense. They were both asked directly whether they killed Mrs McGarrigle. But, in the context in which these questions were being put, it cannot be said that this amounted to an official notification that they were likely to be prosecuted [37]. In the absence of any evidence to show where, when and how she had died, the police were in no position to initiate criminal proceedings. In August 2003 they received information that led to further enquiries and resulted in the appellants being charged with murder in 2005 [38]. On the issue of apparent bias, the test is contained in Porter v Magill [2001] UKHL 67 and considered in a number of authorities [47-52]. It would only be if the judge expressed outspoken opinions about the appellants’ character that were entirely gratuitous, and only if the occasion for making them was plainly outside the scope of the proper performance of his duties, that the fair minded and informed observer would doubt the judge’s ability to perform those duties with an objective judicial mind. The context indicates that nothing of the kind happened in this instance [53-54]. Furthermore, no objection was made by the defence at any point to the fact that Lord Pentland was to preside over the murder trial as well and there are no grounds for doubting his impartiality [55-56]. NOTE This summary is provided to assist in understanding the Court’s decision. It does not form part of the reasons for the decision. The full judgment of the Court is the only authoritative document. Judgments are public documents and are available at: www.supremecourt.gov.uk/decided-cases/index.html The Supreme Court of the United Kingdom Parliament Square London SW1P 3BD T: 020 7960 1886/1887 F: 020 7960 1901 www.supremecourt.gov.uk
- 13 June 2013 PRESS SUMMARY Apollo Engineering Limited (Appellant) v James Scott Limited (Respondent) (Scotland) [2013] UKSC 37 On appeal from [2012] CSIH 4; [2012] CSIH 88 JUSTICES: Lord Hope, Lord Clarke and Lord Carnwath BACKGROUND TO THE APPEAL This case concerns an aspect of the Supreme Court’s jurisdiction to hear appeals in Scottish civil cases. Mr and Mrs Politakis are the directors and the only shareholders of Apollo Engineering Ltd (“Apollo”). They wish to appeal against two orders that were made in a case stated for the opinion of the Inner House of the Court of Session under section 3 of the Administration of Justice (Scotland) Act 1972. The stated case arose from an arbitration between Apollo and James Scott Ltd in relation to a contractual dispute [2]. Apollo ran out of funds and could no longer afford legal representation. On 18 January 2012 the Inner House made an order refusing Mr Politakis’ request that he represent Apollo, on the basis that as a matter of Scots law, a company requires to be legally represented. On 27 November 2012 the Inner House made a further order in which, among other things, it (1) refused Mr Politakis leave to appeal to the Supreme Court against the order of 18 January 2012; (2) refused to allow Mr Politakis to be joined as a party either to replace or in addition to Apollo; and (3) dismissed the stated case [3, 4]. Section 40 of the Court of Session Act 1988 (“the 1988 Act”) regulates appeals to the Supreme Court in Scottish civil cases. It provides that it is competent to appeal from the Inner House to the Supreme Court without the leave of the Inner House, against: (1) a judgment on the whole merits of the cause; (2) an interlocutory judgment where there is a difference of opinion among the judges; or (3) where the interlocutory judgment is one sustaining a dilatory defence and dismissing the action. It is also competent to appeal to the Supreme Court with the leave of the Inner House against any other type of interlocutory judgment of the Inner House [6]. The House of Lords had decided in the case of John G McGregor (Contractors) Ltd v Grampian Regional Council 1991 SC (HL) 1 that an opinion of the court in a stated case did not constitute a “judgment” within the meaning of section 40 of the 1988 Act. In the present case, an opinion on the legal issues in the stated case had not been given [7]. Two issues are before the Supreme Court: (1) whether the McGregor principle applies in the present case so that an appeal against the order of 27 November 2012 is incompetent; and (2) if not, whether the part of the order of 27 November 2012 which dismissed the stated case can competently be appealed to the Supreme Court under section 40 of the 1988 Act without the leave of the Inner House. The Supreme Court directed that these two issues should be the subject of an oral hearing [8]. There is no self-standing right of appeal to the Supreme Court against the order of 18 January 2012, because it was an interlocutory judgment under section 40 of the 1988 Act and the Inner House has refused leave to appeal against it [9]. JUDGMENT The Supreme Court of the United Kingdom Parliament Square London SW1P 3BD T: 020 7960 1886/1887 F: 020 7960 1901 www.supremecourt.gov.ukApollo can competently appeal to the Supreme Court without the leave of the Inner House against the part of the order of 27 November 2012 which dismissed the stated case, as long as the appeal raises a question which can be responsibly be certified by counsel as reasonable [16, 28, 29]. Lord Hope gives the judgment of the Court. REASONS FOR THE JUDGMENT On issue (1), the Court holds that none of the cases in this area, including the McGregor case, offer direct assistance on the question that is to be resolved, and none deals with the situation where the court has declined to do what the statute provides for, which is to give an opinion [10 – 14]. The ordinary use of language indicates that an appeal to the Supreme Court against an opinion of the Inner House under section 3 of the 1972 Act is excluded by necessary implication because it is for the opinion of that court only that the case has been stated. But the 1972 Act makes no provision for the course of action that the Inner House felt obliged to take in this case: dismissing the stated case without giving its opinion on the questions that were before it at all [15]. On issue (2), the Court holds that the order dismissing the stated case cannot be regarded as an interlocutory judgment of the kind which is appealable only with leave under section 40 of the 1988 Act. All the issues that were in controversy before the Inner House were disposed of when the stated case was dismissed. In dismissing the stated case, the court exhausted its functions under the statute, save as to resolving any outstanding issues about expenses. The effect of the order was to end the proceedings completely, in just the same way as if it had encompassed the court’s opinion on the questions that were before it [22, 23]. It is not easy to characterise the order dismissing the stated case as one “sustaining a dilatory defence and dismissing the action”. The order gave effect to a motion by James Scott Ltd based on Apollo’s inability to fulfil the court’s rules of practice about representation. It would be stretching the language of the statute to say that this objection was a defence, especially as the procedure under section 3 was not one that could, in the ordinary sense of the word, be defended [27]. It may not matter much whether the order is to be regarded as a judgment on the whole merits of the cause or as one sustaining a dilatory defence, as both are appealable without the leave of the Inner House. On balance, however, it would be more correct to regard it as a judgment on the whole merits of the cause within the meaning of section 40 of the 1988 Act, even though the Inner House did not address itself to the issues raised in the stated case [27]. As is the case with all other orders that are appealable without leave however, Apollo’s petition of appeal must be certified by two counsel as reasonable – the test for which is whether the appeal raises arguable points of law which are of general public importance. The only question which the Supreme Court can consider is whether the order of the Inner House to dismiss the stated case was one which was open to it to make under the jurisdiction given to it by the statute. Unless something has gone seriously wrong, however, this was an exercise of judgment on a matter of procedure with which this court would not normally wish to interfere [29]. The question whether there was any way in which Apollo’s interests could have been represented which might have avoided the situation in which the Inner House felt obliged to dismiss the stated case is not before the Court. But it is a troublesome aspect of this case, and there may be grounds for thinking that the rule which disables a company from being represented other than by counsel or a solicitor with a right of audience needs to be re-examined [30]. References in square brackets are to paragraphs in the judgment NOTE This summary is provided to assist in understanding the Court’s decision. It does not form part of the reasons for the decision. The full judgment of the Court is the only authoritative document. Judgments are public documents and are available at: www.supremecourt.gov.uk/decided-cases/index.html The Supreme Court of the United Kingdom Parliament Square London SW1P 3BD T: 020 7960 1886/1887 F: 020 7960 1901 www.supremecourt.gov.uk
- patent right granted was revoked = “Method for monitoring a Sensor”-” The Wind Turbine Components and Operation”=The applicant seeks revocation of the Patent No: 203552 for an Invention titled” Method for monitoring a Sensor.”= from the 1990s in India and elsewhere in the world there has been a spurt in wind energy activity. The 1990s were undoubtedly years of considerable change. The rated capacity of wind turbines was increasing rapidly, as was the size of wind farms. Wind speed cannot be controlled. It increases or decreases at will. That is why prediction of the wind speed and monitoring is required. We have already seen that ‘041 tells us that the blade pitch angle was known to be one of the parameters. If the pitch angle is not variable, then of course the anemometer can not use it to monitor the wind flow, But if the pitch angle can be varied and the wind speed is very high , what will the person skilled in the art who has common sense do? She will use the other known parameter that is the blade pitch angle and feather the blades. The answer it appears “is blowing’ in the wind”, it is obvious. 52. The proposed claim also speaks of detecting the flow speed, comparing it with at least one operating parameter and of the sequence the parameters. -Further all the features of the proposed claims are obvious as seen above. In the result, the patent No.IN203552 is revoked.
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