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Chartered Accountants Act, 1949: ss. 2(d), 24, 24A, 25, 26 and 28 – Person qualifying the exam of Chartered Accountant but not a member of the Institute of Chartered Accountant of India – Person impersonating as Chartered Accountant, preparing audit reports and forged seals – Criminal complaint before police alleging commission of offences punishable u/ss. 419, 420, 468 and 473 – Prosecution under the provisions of Penal Code r/w ss. 24 and 26 of the Act – Trial court and High Court holding that even though prima facie case made out against the accused u/s. 24, 24A and 26, cognizance could not have been taken on the basis of the complaint because no complaint was filed u/s. 28 ;and that he could not be prosecuted under the Penal Code – On appeal, held: If the particular act of a member or a non-member or a company results in contravention of the provisions contained in s. 24 or sub- section (1) of s.24A, 25 or 26 of the Act and such act also amounts to an offence of criminal misconduct under IPC, then a complaint can be filed by or under the order of the Council u/s. 28, which may result in punishment prescribed u/s. 24 or sub-section (2) of ss. 24A, 25 or 26 – Such member or non-member or company can also be prosecuted for any identified offence under IPC – There is no bar against prosecution of such person if he is charged with the allegations constituting offences under Penal Code or under other laws – Matter remitted to trial court to consider whether allegations contained in the complaint constitute any offence under Penal Code – In the absence of a complaint u/s. 28, no charges could be framed against chartered accountant for the alleged contravention of ss. 24, 24A or 26 – Penal Code, 1860 – ss. 419, 420, 468 and 473. ss. 24A(2), 26 and 25(2) – Expression `without prejudice to any other proceedings which may be taken against him’ in ss. 24A(2), 26 and s. 25(2) – Meaning of – In the context of the Chartered Accountants Act, 1949. Criminal Law: Double jeopardy – Simultaneous prosecution of offender for contravention of ss. 24, 24A and 26 of the 1949 Act and for the offences under the Penal Code – Permissibility of – Held: Simultaneous prosecution is permissible but in view of the bar contained in Article 20(2) r/w s.26 of the 1897 Act and s.300 Cr.P.C., punishment twice for the same offence is barred – Chartered Accountants Act, 1949 – ss. 24, 24A, 26 – Penal Code, 1860 – Constitution of India, 1950 – Article 20(2) – General Clauses Act, 1897 – s. 26. Interpretation of statutes: Construction of statutory provisions – Held: When there are two possible constructions of a statute, then the one which leads to anomaly or absurdity and makes the statute vulnerable to the attack of unconstitutionality should be avoided in preference to the other which makes it rational and immune from the charge of unconstitutionality. The respondent qualified the exam of Chartered Accountant but is not a member of the appellant-Institute. The appellant- Institute filed a complaint before the police against the respondent alleging cheating by impersonation, forgery and counterfeiting of seal of the Institute, punishable under Sections 419, 468, 471 and 472 IPC. The police filed the challan before the Magistrate. The trial court held that there was no basis for framing any charge against the respondent under IPC; and cognizance of offences under Sections 24 and 26 of the Act could not be taken because no complaint was filed by or under the order of the Council of the appellant- Institute, before the Magistrate. Aggrieved, the appellant filed revisions. The Single Judge of High Court dismissed the same. Therefore, the appellant-institute filed the instant appeals. =Allowing the appeals and remitting the matter to the trial court, the Court HELD: 1.1. Section 24 of the Chartered Accountants Act, 1949 provides for punishment of a person who is not a member of the Institute represents himself as a member of the Institute or uses the designation of chartered accountant. Similar punishment can be imposed on a member of the Institute who does not have a certificate of practice but represents that he is in practice or practises as a chartered accountant. Sub-section (2) of Sections 24A, 25 and 26 provide for imposition of different kinds of punishment for violation of the provisions contained in sub-section (1) of those sections. Section 26 provides for imposition of punishment if a person other than a member of the Institute signs any document on behalf of a chartered accountant in practice or a firm of such chartered accountants in his or its professional capacity. [Para 12] 1.2. Section 28 which is couched in negative form declares that no person would be prosecuted under the Act except on a complaint made by or under the order of the Council or of the Central Government. The prohibition contained in Section 28 is attracted only when such person is sought to be prosecuted for contravention of the provisions contained in Section 24 or sub-section (1) of Sections 24A, 25 or 26 and not for any act or omission which constitutes an offence under the IPC. The use of expression `without prejudice to any other proceedings which may be taken against him’ in sub- section (2) of Sections 24A and 26 and somewhat similar expression in sub- section (2) of Section 25 shows that contravention of the provisions contained in sub-section (1) of those sections can lead to filing of complaint under Section 28 of the Act and if the particular act also amounts an offence under the IPC or any other law, then a complaint can also be filed under Section 200 Cr.P.C. or a first information report lodged with the police under Section 156 Cr.P.C. The said expression cannot be given a restricted meaning in the context of professional and other misconducts which may be committed by a member of the Institute and for which he may be punished under Section 21B(3) because the violation of Sections 24 to 26 can be committed by a person who may or may not be a chartered accountant as defined in Section 2(b). Thus, if the particular act of a member of the Institute or a non-member or a company results in contravention of the provisions contained in Section 24 or sub-section (1) of Sections 24A, 25 or 26 and such act also amounts criminal misconduct which is defined as an offence under the IPC, then a complaint can be filed by or under the order of the Council or of the Central Government under Section 28, which may ultimately result in imposition of the punishment prescribed under Section 24 or sub-section (2) of Sections 24A, 25 or 26 and such member or non-member or company can also be prosecuted for any identified offence under the IPC. The object underlying the prohibition contained in Section 28 is to protect the persons engaged in profession of chartered accountants against false and untenable complaints from dissatisfied litigants and others. However, there is nothing in the language of the provisions contained in Chapter VII from which it can be inferred that Parliament wanted to confer immunity upon the members and non-members from prosecution and punishment if the action of such member or non-member amounts to an offence under the IPC or any other law. [Para 13] 1.3. Unlike ss. 416, 463, 464, 468 and 471 of the Penal Code, the provisions contained in Chapter VII of the Act neither define cheating by personation or forgery or counterfeiting of seal, etc. nor provide for punishment for such offences. If it is held that a person acting in violation of Section 24 or contravening sub-section (1) of Sections 24A and 26 of the Act can be punished only under the Act even though his act also amounts to one or more offence(s) defined under the IPC and that too on a complaint made in accordance with Section 28, then the provisions of Chapter VII would become discriminatory and might have to be struck down on the ground of violation of Article 14. Such an unintended consequence can be, and deserves to be avoided, in interpreting Sections 24A, 25 and 26 keeping in view the settled law that if there are two possible constructions of a statute, then the one which leads to anomaly or absurdity and makes the statute vulnerable to the attack of unconstitutionality should be avoided in preference to the other which makes it rational and immune from the charge of unconstitutionality. That apart, the court cannot interpret the provisions of the Act in a manner which would deprive the victim of his right to prosecute the wrong doer for the offences defined in Sections 416, 463, 464, 468 and 471 by filing a first information report or a complaint under the relevant provisions of Cr.P.C. [Para 14] 1.4. The respondent could have been simultaneously prosecuted for contravention of Sections 24, 24A and 26 of the Act and for the offences defined under the IPC but in view of the bar contained in Article 20(2) of the Constitution read with Section 26 of the General Clauses Act, 1897 and Section 300 Cr.P.C., he could not have been punished twice for the same offence. [Para 15] Maqbool Hussain v. The State of Bombay (1953) 4 SCR 730; T.S. Baliah v. T.S. Rangarchari (1969) 3 SCR 65; State of Bombay v. S.L. Apte (1961) 3 SCR 107; V.K. Agarwal v. Vasantraj B. Bhatia (1988) 3 SCC 467; State of Bihar v. Murad Ali Khan (1988) 4 SCC 655; State of Rajasthan v. Hat Singh (2003) 2 SCC 152, referred to. 1.5. The submission that the Chartered Accountants Act, 1949 is a special legislation vis-

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS._________OF 2010 (Arising out of S.L.P. (Crl.) Nos.3411-3412 of 2009) The Institute of Chartered Accountants of India …….Appellant Versus Vimal Kumar Surana and another …….Respondents J U D G M E N T G.S. Singhvi, J. 1. Leave granted. 2. The question which … Continue reading

APEX COURT NOT ACCEPTED HIGH COURT VIEW= whether definition of “tax arrears” contained in Section 87 (m)(ii)(b) is arbitrary, irrational or violative of the doctrine of equality enshrined under Article 14 of the Constitution and whether the petitioners are entitle to avail benefit under Scheme. = The High Court, vide its impugned Judgment and Order dated 25.07.2005, has declared that Section 87(m)(ii) (b) of Finance (No.2) Act, 1998 is violative of Article 14 of the Constitution of India insofar as it seeks to deny the benefit of the `Kar Vivad Samadhana Scheme, 1998 (hereinafter referred to as “the Scheme”) to those who were in arrears of duties etc., as on 31.03.1998 but to whom the notices were issued after 31.03.1998 and further, has struck down the expression “on or before the 31st day of March 1998” under Section 87(m)(ii)(b) of the Finance (No. 2) Act, 1998 as ultra vires of the Constitution of India and in particular, Article 14 of the Constitution on the ground that the said expression prescribes a cut-off date which arbitrarily excludes certain category of persons from availing the benefits under the Scheme. The High Court has further held that as per the definition of the `tax arrears’ in Section 87(m) 4

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2960 OF 2006 Union of India and Ors. ………….. Appellants versus M/s Nitdip Textile Processors Pvt. Ltd. and Another …………..Respondents WITH CIVIL APPEAL NO. 2961 OF 2006 Union of India and Ors. ………….. Appellants versus M/s Nitdip Textile Processors Pvt. Ltd. and … Continue reading

LAND ACQUISITION COMPENSATION EXPERT OPINION-Shri Ravindra Ghanshyam Choudhari, who was examined by the appellants. This witness is a consultant in Agriculture and Horticulture. He personally visited the acquired land and gave the details of the trees standing on different parts of the land, their present and future age, condition, height, width, spread and annual fruit production capacity. The valuation made by him was amply supported by the market rates of fruits fixed by Agriculture and Horticulture Department of Government of Maharashtra. In the cross-examination, the witness stood by reports Exhibits 36 to 41 given by him. This being the position, the High Court had

NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION C IVIL APPEAL NO. 5475 O F 2007 Chindha Fakira Patil (D) through L.Rs. … Appellant(s) Versus The Special Land Acquisition Officer, Jalgaon … Respondent With C IVIL APPEAL NO. 5477 O F 2007 C IVIL APPEAL NO. 5485 O F 2007 C IVIL APPEAL … Continue reading

Code of Criminal Procedure, 1973 – s. 227 – Discharge – Retired IPS officer aged 85 years charge-sheeted u/s.302/34 IPC for killing a naxalite in a fake encounter, on basis of confession of a constable – Discharge petition u/s. 227 – Rejection of, by courts below – Held: s. 227 confers special power on the judge to discharge accused if upon consideration of records and documents `there is no sufficient ground’ for proceeding against accused – On facts, trial court after evaluating the materials produced by prosecution and after considering the probability of the case, dismissed the discharge petition and High Court upheld the same – Admissibility or acceptability of extra judicial confession made by constable before High Court in earlier proceedings is to be considered at the time of trial – Thus, orders of courts below does not call for interference – Penal Code, 1860 – s.302/34 – Evidence Act, 1872 – s. 30. Appellant is a retired IPS official aged about 85 years. Appellant along with the other accused were charge-sheeted in year 2002 for offence punishable u/s. 302 read with s. 34 IPC for killing a Naxalite in year 1970, in a fake encounter. Appellant-A3 filed a petition for discharge u/s. 227 of the Code of Criminal Procedure, 1973. Trial court dismissed the same and ordered for framing of charges against the appellant. Single Judge of High Court dismissed the revision petition. Hence the present appeal. =Dismissing the appeal, the Court HELD: 1.1 Section 227 of the Code of Criminal Procedure, 1973 confers special power on the Judge to discharge an accused at the threshold if upon consideration of the records and documents, he find that “there is not sufficient ground” for proceeding against the accused. His consideration of the record and document at that stage is for the limited purpose of ascertaining whether or not there is sufficient ground for proceeding against the accused. If the Judge comes to a conclusion that there is sufficient ground to proceed, he will frame a charge u/s. 228, if not, he will discharge the accused. This provision was introduced in the Code to avoid wastage of public time which did not disclose a prima facie case and to save the accused from avoidable harassment and expenditure. [Para 21] [93-E-H] 1.2. If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. Further, the words “not sufficient ground for proceeding against the accused” clearly show that the judge is not a mere Post Office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the Court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the Court, after the trial starts. At the stage of s. 227, the judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. The sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the Court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him. [Para 10] [86-C-H] 1.3. If on the basis of material on record the Court could form an opinion that the accused might have committed offence it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. At the time of framing of the charges the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution has to be accepted as true. Before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. Whether, in fact, the accused committed the offence, can only be decided in the trial. Charge may although be directed to be framed when there exists a strong suspicion but it is also trite that the Court must come to a prima facie finding that there exist some materials therefor. Suspicion alone, without anything more, cannot form the basis therefor or held to be sufficient for framing charge. [Para 14] [90-A-D] State of Bihar vs. Ramesh Singh (1977) 4 SCC 39; Union of India vs. Prafulla Kumar Samal (1979) 3 SCC 4; Niranjan Singh K.S. Punjabi vs. Jitendra Bhimraj Bijjaya (1990) 4 SCC 76; Soma Chakravarty vs. State through CBI (2007) 5 SCC 403, Relied on. 2.1. From 1970 till 1998, there was no allegation that the encounter was a fake encounter. In the year 1998, reports appeared in various newspapers in Kerala that the killing of the Naxalite in the year 1970 was in a fake encounter and that senior police officers are involved in the said fake encounter. Pursuant to the said news reports, several writ petitions were filed by various individuals and organizations before the High Court with a prayer that the investigation may be transferred to Central Bureau of Investigation. In the said writ petition, Constable-A1 filed a counter affidavit in which he made a confession that he had shot Naxalite on the instruction of the then Deputy Superintendent of Police-A2; and that the appellant was present when the incident occurred. Based on the assertion in the counter affidavit of the constable-A1, Single Judge of High Court passed an order entrusting an investigation to the CBI. CBI registered an FIR implicating the Constable, the DSP and the appellant as accused Nos. 1, 2 and 3 respectively for an offence u/s. 302/34 IPC. Constable-A1 is not alive and there is no question of joint trial by the prosecution against the other two accused along with A1. [Paras 16 and 18] [90-F-H; 91-A-C; 92- C] 2.2. Insofar as the admissibility or acceptability of the extra judicial confession in the form of counter affidavit made by the first accused before the High Court in the earlier proceedings are all matters to be considered at the time of trial. Their probative value, admissibility, reliability etc. are matters for evaluation after trial. The Additional Solicitor General rightly pointed out that apart from the confession, the statement of CW-6, CW-21, CW-31 and CW-32 are very well available and cannot be ignored lightly. All the above materials require sufficient scrutiny at the hands of the trial judge. [Para 20] [93-C-E] Mohd. Khalid vs. State of West Bengal (2002) 7 SCC 334; Hardeep Singh Sohal & Ors. vs. State of Punjab (2004) 11 SCC 612, referred to. 2.3. In the instant case, though, the trial judge has not assigned detailed reasons for dismissing the discharge petition filed u/s. 227, it is clear from his order that after consideration of the relevant materials charge had been framed for offence u/s. 302 read with s. 34 IPC and because of the same, he dismissed the discharge petition. After evaluating the materials produced by the prosecution and after considering the probability of the case, the judge being satisfied by the existence of sufficient grounds against the appellant and another accused framed a charge. Whether the materials at the hands of the prosecution are sufficient or not are matters for trial. At this stage, it cannot be claimed that there is no sufficient ground for proceeding against the appellant and discharge is the only remedy. Further, whether the trial will end in conviction or acquittal is also immaterial. All these relevant aspects have been carefully considered by the High Court and it rightly affirmed the order passed by the trial judge dismissing the discharge petition filed by the appellant-A3. The said conclusion are concurred with. [Para 22] [94-A-D] 2.4. Nothing is expressed on the merits of the claim made by both the parties and the conclusion of the High Court as well as this Court are confined only for disposal of the discharge petition filed by the appellant u/s. 227 of the Code. It is for the prosecution to establish its charge and the trial judge is at liberty to analyze and to arrive at an appropriate conclusion, one way or the other, in accordance with law. [Para 23] [94-E- F] Case Law Reference: (1977) 4 SCC 39 Relied on. Para 11 (1979) 3 SCC 4 Relied on. Para 12 (1990) 4 SCC 76 Relied on. Para 13 (2007) 5 SCC 403 Relied on. Para 14 (2002) 7 SCC 334 Referred to. Para 18 (2004) 11 SCC 612 Referred to. Para 19 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No 192 of 2010. From the Judgment & Order dated 4.7.2007 of the High Court of Kerala at Ernakulam in Criminal Revision Petition No. 245 of 2007. Raghenth Basant, Liz Mathew, Senthil Jagadeesan for the Appellant. H.P. Raval, ASG, A. Mariarputham, P.K. Dey T. A. Khan Rajiv Nanda, Arvind Kr. Sharma, Dushyant Parashar, R. Sathish, P. Parmeswaran for the Respondents.

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 192 OF 2010 (Arising out of S.L.P. (Crl.) No. 4708 of 2007) P. Vijayan …. Appellant (s) Versus State of Kerala & Anr. …. Respondent(s) JUDGMENT P. Sathasivam, J. 1) Leave granted. 2) This appeal is directed against the judgment and order … Continue reading

Copyright Act, 1957: S.31 – Interpretation of – S.31(2) refers to case falling under clause (a) of sub-section (1) of Section 31 and not clause (b) thereof – In terms of s.31, Principles of Natural Justice are required to be complied with – The manner in which the Copyright Board dealt with the matter not approved – Order of the Board set aside and matter remitted to the Board for consideration of the matter afresh on merit – Administrative Law – Principles of Natural Justice – Constitution of India – Articles 14, 19(1)(g). Doctrines: Doctrine of purposive construction – Applicability of. International conventions, covenants and resolutions: Applicability of for the purpose of interpreting domestic statute, would depend upon the acceptability of the conventions in question – Where protection of human rights, environment, ecology etc. involved courts should not be loathe to refer to International Conventions. Marginal Notes: Where the statute is clear, marginal note may not have any role to play. Words & Phrases: `Work’, `public’, `compensation’, `royalty’ – Meaning of in the context of Copyright Act, 1957. First respondent is one of the leading music companies engaged in the production and/or acquisition of rights in sound recordings. It has copyright over a series of cassettes and CDs commonly known as T-series, containing cinematographic films and sound recordings. Appellant broadcasts under the brand name “Radio Mirchi”. It is a leading FM radio broadcaster. Disputes and differences arose between the holding company of the first respondent and Phonographic Performance Ltd. (PPL) as regards the playing of the songs of which copyrights belongs to the first respondent in their FM radio network. A suit was filed before the Delhi High Court for restraining the appellant from playing and broadcasting the music belonging to the first respondent on any of the Radio Stations belonging to the appellant. Various Radio Stations including the appellant filed an application before the Copyright Board at Hyderabad in terms of Section 31(1)(b) of the Act for grant of compulsory license to all the radio stations. The Copyright Board by a judgment and order dated 19.11.2002 fixed the standard rate of: Payment to be made at Rs.1200/needle hour during prime time. For 12 normal hours = 60% of standard rate For 8 lean (night) hours = 25% of standard rate and respondents also directed to furnish a security/bank guarantee of Rs.20,00,000/- per radio station to PPL. The Board also held that the same shall be operative for a period of 2 years and the matter shall be reconsidered again in September-October, 2004. Super Cassettes was not a party therein. The Board fixed royalties initially for a period of two years. An appeal thereagainst was preferred before Bombay High Court and it is the subject matter of C.A. No. 5181 of 2005. Appeals were filed before the Bombay High Court by the radio companies and PPL against the order dated 19.11.2002. 13 Appeals in total were filed before the Bombay High Court. The Bombay High Court by a common judgment and order dated 13.4.2004 in First Appeal Nos. 279-294 of 2003, 421 of 2003 and 1573 of 2003 remitted the matters back to the Copyright Board for reconsideration and for fixation of license fees. Appellant filed an application before the Copyright Board at Delhi, for grant of compulsory licence in terms of Section 31(1)(b) of the Act against Super Cassettes. The Application was allowed granting a compulsory licence. Appellant filed an appeal against the said order before the Bombay High Court questioning the rates of compensation only. The said appeal was tagged with various other appeals which had been filed before the Bombay High Court against the said order passed by the Copyright Board at Hyderabad. Respondents however preferred two-fold appeals before the Delhi High Court. By reason of the impugned judgment dated 30.6.2004, the respondent’s appeal has been allowed remitting the matter back to the Copyright Board to reconsider the application of the appellant for grant of compulsory license under Section 31 of the Act after giving adequate opportunity to the parties to adduce evidence and to dispose of the same by a reasoned order. The High Court furthermore directed that the appellant must file an undertaking that it would not broadcast the sound recordings of the respondent. Appellant had filed Petition for Special Leave to Appeal giving rise to Civil Appeal No. 5114 of 2005 in this Court. Thus there are two judgments before this Court, one from the Bombay High Court and another from the Delhi High Court. Whereas the Bombay High Court opined that in terms of Section 31 of the Act, grant of compulsory license on reasonable remuneration is permissible; the Delhi High Court held otherwise. The core questions which, arose for consideration were: (i) Whether the Copyright Board has jurisdiction under Section 31(1)(b) of the Copyright Act, 1957 to direct the owner of a copyright in any Indian work or a registered copyright society to issue compulsory licences to broadcast such as works, where such work is available to the public through radio broadcast? (ii) Whether in any event such a compulsory license can be issued to more than one complainant in the light of Section 31(2)? (iii) What would be the relevant considerations which the Copyright Board must keep in view while deciding on; (a) Whether to issue a compulsory license to a particular person; and (b) The terms on which the compulsory license may be issued, including the compensation?=Allowing the appeals, the Court HELD: 1.1 Applicability of the International Conventions and Covenants, as also the resolutions, etc. for the purpose of interpreting domestic statute will depend upon the acceptability of the Conventions in question. If the country is a signatory thereto subject of course to the provisions of the domestic law, the International Covenants can be utilized. Where International Conventions are framed upon undertaking a great deal of exercise upon giving an opportunity of hearing to both the parties and filtered at several levels as also upon taking into consideration the different societal conditions in different countries by laying down the minimum norm, as for example, the ILO Conventions, the court would freely avail the benefits thereof. [Para 19] [218-G,H, 219-A] 1.2 Those Conventions to which India may not be a signatory but have been followed by way of enactment of new Parliamentary statute or amendment to the existing enactment, recourse to International Convention is permissible. [Para 19] [[219-B]] 1.3 As regards the question where the protection of human rights, environment, ecology and other second-generation or third-generation rights is involved, the courts should not be loathe to refer to the International Conventions. [Para 19] [219-E] Gramophone Company of India Ltd. v. D.B. Pandey (1984) 2 SCC 534; Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225; Jagdish Saran and Ors. V. Union of India (1980) 2 SCC 768; Indian Handicrafts Emporium and Ors. V. Union of India (2003) 7 SCC 589; Motor General Traders and Anr. v. State of Andhra Pradesh and Ors. (1984) 1 SCC 222; Rattan Arya and Ors. v. State of Tamil Nadu and Anr. (1986) 3 SCC 385; Synthetics and Chemicals Ltd. and Ors. v. State of U.P. and Ors. (1990) 1 SCC 109; Liverpool and London S.P. and I Asson. Ltd. V. M.V. Sea Success I and Anr. (2004) 9 SCC 512; M.V. Elisabeth (1993) Supp. (2) SCC 433; The State of West Bengal v. Kesoram Industries Ltd. And Ors. (2004) 10 SCC 201; Pratap Singh v. State of Jharkhand and Anr. (2005) 3 SCC 551; Centrotrade Minerals and Metal Inc. v. Hindustan Copper Limited (2006) 11 SCC 245; State of Punjab and Ors. v. Amritsar Beverages Ltd. and Ors. 2006 (7) SCALE 587; State of Punjab and Anr. v. Devans Modern Brewaries Ltd. and Anr. (2004) 11 SCC 26; Anuj Garg and Ors. v. Hotel Association of India and Ors. (2008) 3 SCC 1; PUCL v. Union of India (1997) 3 SCC 433; John Vallamattom v. Union of India (2003) 6 SCC 611; Madhu Kishwar v. State of Bihar (1996) 5 SCC 125; Kubic Darusz v. Union of India (1990) 1 SCC 568; Chameli Singh v. State of U.P. (1996) 2 SCC 549; C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil (1996) 8 SCC 525; Apparel Export Promotion Council v. A.K. Chopra (1999) 1 SCC 759; Kapila Hingorani Vs. State of Bihar (2003) 6 SCC 1; State of Punjab & Anr. Vs. M/s. Devans Modern Breweries & Anr. 2003 (10) SCALE 202 and Liverpool & London S.P. & I Asson. Ltd. Vs. M.V. Sea Success I 2003 (10) SCALE 1 – referred to The Berne Convention, Articles 11, 11bis; Rome Convention, Articles 3(f), 12; Copinger and Skone James on Copyright, 15th Ed.2005, para 2-5, page 27, Vol.1 and Black’s Law Dictionary, Seventh Edition – referred to. 2.1 The Copyright Act seeks to maintain a balance between the interest of the owner of the copyright in protecting his works on the one hand and the interest of the public to have access to the works, on the other. The extent to which the owner is entitled to protection in regard to his work for which he has obtained copyright and the interest of the public is a matter which would depend upon the statutory provisions. [Para 21] [221-B,C] 2.2 Whereas the Act provides for exclusive rights in favour of owners of the copyright, there are provisions where it has been recognized that public has also substantial interest in the availability of the works. The provisions relating to grant of compulsory license must be viewed having regard to the aforementioned competing rights wherefor an appropriate balance has to be stuck. [Para 21] [221-C,D] 2.3 The freedom to contract is the foundation of economic activity and an essential aspect of several Constitutional rights including the freedom to carry on trade or business guaranteed under Article 19(1)(g) and the right to property under Article 300A of the Constitution of India. But the said right is not absolute. It is subject to reasonable restrictions. [Para 21] [221-G,H, 222-A] 2.4 Section 30 enables the owner of the copyright to grant any interest in the copyright by a license in writing signed by him or by his duly authorized agent. The underlying philosophy of the Copyright Act is that the owner of the copyright is free to enter into voluntary agreement or licenses on terms mutually acceptable to him and the licensee. The Act confers on the copyright owner the exclusive right to do the various acts enumerated in Section 14. An infringement of copyright occurs if one of those acts is done without the owner’s license. A license passes no interest, but merely makes lawful that which would otherwise be unlawful. The Act also expressly recognizes the notion of an “exclusive license” which is defined in Section 2(j). But, that does not mean, as would be noticed from the discussions made hereinafter, that it would apply in all situations irrespective of the nature of right as also the rights of others. It means a licence which confers on the licensee, to the exclusion of all other persons (including the owner of the copyright) any right comprised in the copyright in a work. An exclusive licensee has specific rights under the Act such as the right to have recourse to civil remedies under Section 55 of the Act. This Scheme shows that a copyright owner has complete freedom to enjoy the fruits of his labour by earning an agreed fee or royalty through the issuance of licenses. Hence, the owner of a copyright has full freedom to enjoy the fruits of his work by earning an agreed fee or royalty through the issue of licenses. But, this right is not absolute. It is subject to right of others to obtain compulsory licence as also the terms on which such licence can be granted. [Para 21] [222-A-G] 3.1 The meaning of a word must be attributed to the context in which it is used. For giving a contextual meaning, the text of the statute must be kept in mind. An act of refusal depends upon the fact of each case. Only because an offer is made for negotiation or an offer is made for grant of license, the same per se may not be sufficient to arrive at a conclusion that the owner of the copyright has not withheld its work from public. When an offer is made on an unreasonable term or a stand is taken which is otherwise arbitrary, it may amount to a refusal on the part of the owner of a copyright. When the owner of a copyright or the copyright society exercises monopoly in it, then the bargaining power of an owner of a copyright and the proposed licensee may not be same. When an offer is made by an owner of a copyright for grant of license, the same may not have anything to do with any term or condition which is wholly alien or foreign therefor. An unreasonable demand if acceded to, becomes an unconstitutional contract which for all intent and purport may amount to refusal to allow communication to the public work recorded in sound recording. A de jure offer may not be a de facto offer. [Para 24] [226-E-H, 227-A] 3.2 Although the term `work’ has been used both in clauses (a) and (b) of sub-Section (1) of Section 31, the same has been used for different purpose. The said term `work’ has been defined in Section 2(y) in different contexts. It enumerates the works which are: (a) a literary, dramatic, musical or artistic work; (b) a cinematograph film; (iii) a sound recording. Thus, a literary work ex facie may not have anything to do with sound recording. [Para 24] [227-B,C] 3.3 There are indications in the Act particularly having regard to Sections 14(1)(a) and 14(1)(e) thereof that they are meant to operate in different fields. They in fact do not appear to be operating in the same field. Clause (a) refers to publication or republication of the work. It may be in print media or other medias. Clause (b), however, refers to broadcast alone. Sound recording is a part of it. Sub-clauses (i) to (vii) of sub-clauses (a) of sub-Section (1) of Section 14 and sub-clauses (i) to (iii) of sub-clause (e) conferred different meanings of the word copyright. Whereas clause (a) refers to work in general, clause (b) refers to work recorded in such sound recording, which in turn means the recording of sounds from which such sounds may be reproduced regardless of the medium on which such recording is made or the method by which the sounds are produced. Clause (b) ex facie does not fit in the scheme of clause (a). [Para 24] [227-C,D,E,F] 3.4 Interpretation of clause must be given effect to having regard to the limitations contained therein, namely, unless context otherwise requires. [Para 24] [227-F] 3.5 Communication to the public is possible by way of diffusion. Explanation appended to Section 2(ff) clearly shows the extensive meaning of the said term. Publication and republication of a work in general may be different from communication of a work recording in sound recording. The use of words `such work’ also assumes significance. The said words must be understood having regard to the fact that sound recording is also a work. If it is accepted that voluntary licenses have been entered into by the owners with All India Radio and some other Radio Broadcasters, then it is sufficient for closing the doors on another person to approach the Copyright Board. One may as well say that if it is provided to a satellite channel or a space radio, the same also would subserve the purpose for refusing to grant an application under Section 31 of the Act. [Para 24] [227-G,H, 228-A,B] 3.6 The word `work’ in the context of broadcast must be understood having regard to the fact that there are 150 F.M. licenses out of which about 93 are working. There are 300 broadcasters working in almost all the big cities in India. The word `public’ must be read to mean public of all parts of India and not only a particular part thereof. If any other meaning is assigned, the terms `on terms which the complaints considers reasonable’ would lose all significance. The very fact that refusal to allow communication on terms which the complainant considers reasonable have been used by the Parliament indicate that unreasonable terms would amount to refusal. It is in that sense the expression `has refused’ cannot be given a meaning of outright rejection or denial by the copyright owner. [Para 24] [228-C,D,E] 3.7 PPL and SCIL might have been called upon the broadcasters to enter into licenses and were willing to license their repertoire. But their contention was that if such terms are unreasonable, it amounted to refusal which would attract Section 31 of the Act. The word `communicate the work to the public by broadcast” is of significance. It provides for a mode of communication. Thus, only because a Registrar of a Copyright would be directed to grant a licence to communicate the work to the public by broadcast would not mean that only a single licence shall be granted. The Board acting as a statutory authority can exercise its power from time to time. It is therefore not correct to contend that having regard to the provisions of sub-section (2) of Section 31, compulsory licence can be granted only to one and not to more than one broadcaster. [Para 24] [228-F-H, 229-A] 3.8 Section 31(1)(b) in fact does not create an entitlement in favour of an individual broadcaster. The right is to approach the Board when it considers that the terms of offer for grant of license are unreasonable. It, no doubt, provides for a mechanism but the mechanism is for the purpose of determination of his right. When a claim is made in terms of the provisions of a statute, the same has to be determined. All cases may not involve narrow commercial interest. For the purpose of interpretation of a statute, the court must take into consideration all situations including the interest of the person who intends to have a licence for replay of the sound recording in respect whereof another person has a copyright. It, however, would not mean that all and sundry can file applications. [Para 24] [229-C,D,E] 3.9 Admittedly in terms of Section 31 of the Copyright Act the principles of natural justice are required to be complied with and an enquiry has to be held. The extent of such enquiry will depend upon the facts and circumstances of the case. A finding has to be arrived at that the grounds of refusal by an owner of a copyright holder is not reasonable. Only upon arriving at the said finding, the Registrar of copyright would be directed to grant a license for the said purpose. The amount of compensation payable to the owner of the copyright must also be determined. The Board would also be entitled to determine such other terms and conditions as the Board may think fit and proper. Registration is granted only on payment of such fees and subject to compliance of the other directions. [Para 24] [229-G,H, 230-A,B] 4.1 An owner of a copyright indisputably has a right akin to the right of property. It is also a human right. Now, human rights have started gaining a multifaceted approach. Property rights vis-=, 2008(9 )SCR165 , , 2008(9 )SCALE69 , 2008(7 )JT11

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5114 OF 2005 M/s Entertainment Network (India) Ltd. … Appellant Versus M/s Super Cassette Industries Ltd. … Respondent WITH CIVIL APPEAL NOS.5178-5180/2005, Phonographic Performance Limited …Appellant Versus Millineum Chennai Broadcast (P) Ltd. etc. etc. ..Respondents WITH CIVIL APPEAL NO. 5181/2005, Phonographic Performance … Continue reading

Income Tax Act, 1961 – Bengal Agricultural Income Tax Act, 1944 – s.8 – Tea – Composite business of growing and manufacturing tea – Income from – Taxability of – Held: Such income has to be assessed under 1961 Act – 40% of income assessed would be taxable under 1961 Act and 60% is treated as agricultural income and taxable under 1944 Act – Income Tax Rules, 1962 – r.8. The respondent-assessee was carrying on the composite business of growing and manufacturing tea. It was selling green tea leaves produced in the tea gardens which is agricultural produce and also manufacturing tea. A notice of demand was issued on assessee on the ground that the income from sale of green tea leaves was taxable as agriculture income under the Bengal Agricultural Income Tax Act, 1944. The assessee filed writ petition seeking cancellation of the notice of demand. The writ petition was disposed of by the Single Judge of High Court in terms of judgment of this Court in *Tata Tea Ltd case. The Division Bench of High Court while following the ratio of *Tata Tea Ltd. case directed the Assessing Officer to compute the tax on the income of assessee. It held that the income from `tea grown and manufactured’ should be assessed by the Assessing Officer under the Income Tax Act, 1961; that 40% of the income assessed shall be taxed under the 1961 Act and balance 60% shall be taxed under the 1944 Act by Agricultural Income Tax Officer on the basis of income assessed by the Assessing Officer under the 1961 Act; and the income derived from sale of green tea leaves is agricultural income and assessable under the 1944 Act. In appeal to this Court, assessee contended that the sale proceeds of green tea leaves should be treated incidental to business and its income should be computed under the provisions of the 1961 Act. =Disposing of the appeal, the Court HELD: 1.1. There is no dispute on the fact that from the income assessed, 60% is taxable by the State under the Bengal Agricultural Income Tax Act, 1944 and 40% is taxable by the Centre under the Income Tax Act, 1961. The object behind taxing the 60% and 40% share of the income assessed appears that there are common expenses on establishment and staff for two different activities that is tea grown and tea manufactured. There can be independent income from sale of green tea leaves and by sale of tea, that is, after processing of green tea leaves when green tea leaves become tea for use. Income from agriculture is taxable by the State and sale of tea after manufacturing is taxable by the Union of India as business income. To segregate income and expenses from two combined activities of assessee is not possible, but at the same time there cannot be two assessments of income by two different authorities. Therefore, there can be only one assessment of income from the tea business. [Paras 11, 12] [57-E-H, 58-A] 1.2 For the purpose of tax on agricultural income, the Agricultural Income Tax Officer will go by the assessment order made under the provisions of the 1961 Act and the contents of the assessment for the year made by the Assessing Officer under the 1961 Act shall be conclusive evidence of the contents of such order and he has to go by the assessment and tax only 60% income made under the assessment for the purpose of the 1944 Act. [Para 15] [59-E,F] 1.3 It is true that both rule 8 of the Income Tax Rules, 1962 and s.8 of the 1944 Act provide how the mixed income from the growing tea leaves and tea manufacturing can be taxed. Mixed income means the income derived by an assessee from the combined activities i.e. growing of tea leaves and manufacturing of tea. Therefore, for the purpose of computation of income under the 1961 Act, it should be the mixed income from `tea grown and manufactured’ by the assessee. [Para 19] [61-C,D,E] 1.4. If the income is by sale of green tea leaves by the assessee it cannot be called income assessable under the 1961 Act for the purpose of 40:60 share between the Centre and the State. In both the provisions i.e. rule 8 of the Income Tax Rules, 1962 and s.8 of the 1944 Act, the word used is income derived from the sale of `tea grown and manufactured’. The income from sale of green tea leaves is purely income from the agricultural product. There is no question of taxing it as incidental income of the assessee when there is a specific provision and authority to tax that income i.e. the State, under the 1944 Act. In this view of the matter, the agricultural income cannot be taxed under 1961 Act. [Paras 20, 21] [61-E,F,G] 2. It is also pertinent to mention that the Income Tax Officer has assessed the income of tea manufactured by the assessee from 1977-78 to 1980-81 to the tune of Rs.1,44,250/-, Rs.4,28,040/-, Rs.54,450/- and Rs.92,351/- respectively and income of the assessee from the sale of green tea leaves was more than Rs.10 lakhs in each accounting year (1977-78 and 1978-79). In this view of the matter, the income of the assessee from the sale of tea leaves can never be incidental to business. In a given case the assessee can process only 10% of green tea leaves and 90% of green tea leaves can be sold directly in the market. That income from sale of green tea leaves cannot be treated incidental to the business. In case the assessee directly sells the green tea leaves resulting into an income from agricultural products, it cannot be taken as incidental income to the business and whatever the income is derived from the sale of the green tea leaves can be assessed by the Agricultural Income Tax Officer under the 1944 Act. [Paras 22,23,24] [62-A,B,C,D,E] *Tata Tea Ltd. & Anr. v. State of West Bengal & Ors. (1988) Supp SCC 316 – relied on. 3. The Assessing Officer is directed to frame an assessment order in the case of the respondent assessee on the principle of law laid down by this Court in the case of *Tata Tea and followed by the Division Bench of the High Court in the impugned judgment, if not already made. [Paras 30, 31] [64-A-C] Parag P. Tripathi, ASG, Naveen Prakash, Shweta Garg, B.V. Balaram Das, H.K. Puri and Rajeev Sharma for the appearing Parties.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPEALLTE JURISDICTION CIVIL APPEAL NO.8284-8285 of 2002 Union of India & Another .. Appellants Versus Belgachi Tea Co. Ltd. & Others .. Respondents WITH CIVIL APPEAL No.8283 of 2002. JUDGMENT Dalveer Bhandari, J. 1. These appeals are directed against the judgment of the Division Bench of the … Continue reading

Motor Vehicles Act, 1988 – ss. 158(6), 166(4), 196 – Central Motor Vehicle Rules, 1950 – r. 150 – Motor accident – Compensation – In cases of hit and run unidentified vehicles; uninsured vehicles; gratuitous passengers; passengers in goods vehicles; procedural delays in adjudication/settlement of claims; and where compensation amount does not reach the claimants, directions issued and suggestions made by the Court – Directions to the police authorities and claims tribunals for implementation of provisions u/ss. 158(6), 166(4), 196 and r. 150 – Direction to Insurance companies to lodge complaint in cases of forged driving licences – Suggestions made for legislative/executive interference to amend and enact more comprehensive law – Suggestions also made to Insurance Companies. In the instant Special Leave Petition, the Court addressed to four problems generally faced in motor accident cases – (i) Victims who do not receive compensation in cases, that is (a) hit and run vehicles which remain unidentified. (b) offending vehicles not having insurance cover and (c) vehicles with third party insurance carrying persons not covered by insurance (gratuitous passengers and pillion riders etc.). (ii) Practice of using goods vehicles for passenger transport (iii) Procedural delay in adjudication/settlement of claims by Motor Accident Claims Tribunal. (iv) The entire compensation amount not reaching and benefitting the victims and their families. =Adjourning the matter, the Court gave following directions / suggestions: Suggestions For Legislative and Executive Intervention [Problems (i) and (ii)]: 1.1. To ensure that all accident victims get compensation, it is necessary to formulate a more comprehensive scheme for payment of compensation to the victims of road accidents, in place of the present system of third party insurance. [Para 22] 1.2. An alternative scheme involves the collection of a one time (life time) third party insurance premium by a Central Insurance Agency in respect of every vehicle sold (in a manner similar to the collection of life time road tax). The fund created by collection of such third party insurance can be augmented/supplemented by an appropriate road accident cess/surcharge on the price of petrol/diesel sold across the country. Such a hybrid model which involves collection of a fixed life time premium in regard to each vehicle plus imposition of a road accident cess may provide a more satisfactory solution in a vast country like India. This will also address a major grievance of insurance companies that their outgoings by way of compensation in motor accident claims is four times the amount received as motor insurance premia. The general insurance companies may however continue with optional insurance to provide cover against damage to the vehicle and injury to the owner. [Para 23] 1.3. A more realistic and easier alternative is to continue with the present system of third party insurance with two changes: (I) Define `third party’ – to cover any accident victim (that is any third party, other than the owner) and increase the premia, if necessary. (ii) Increase the quantum of compensation payable under Section 161 of the Act in case of hit and run motor accidents. [Para 24] 1.4. There is an urgent need for laying down and enforcing Road safety measures and establishment of large number of Trauma Centres and first aid centres. It is also necessary to consider the establishment of a Road Safety Bureau to lay down Road Safety Standards and norms, enforce Road safety measures, establish and run Trauma Centres, establish First Aid Centres in Petrol Stations, and carry out research/data collection for accident prevention. [Para 25] 1.5. The Central Government may consider amendment of the Second Schedule to the Act to rectify the several mistakes therein and rationalize the compensation payable thereunder. [Para 27] U.P. State Road Transport Corporation v. Trilok Chandra 1996 (4) SCC 362; Sarla Verma v. Delhi Transport Corporation 2009 (6) SCC 121, referred to. 1.6. Where there is no insurance cover for a vehicle, the owner should be directed to offer security or deposit an amount, adequate to satisfy the award that may be ultimately passed, as a condition precedent for release of the seized vehicle involved in the accident. If such security or cash deposit is not made, within a period of three months, appropriate steps may be taken for disposal of the vehicle and hold the sale proceeds in deposit until the claim case is disposed of. The appropriate Governments may consider incorporation of a rule on the lines of Rule 6 of the Delhi Motor Accident Claims Tribunal Rules, 2008 in this behalf. [Para 28] 1.7. In place of the provisions relating to Accident tribunals and award of compensation in the Motor Vehicles Act, 1988, and other statutes dealing with accidents and compensation, enacting a comprehensive and unified statute dealing with accidents may be considered. [Para 26] Direction to Police Authorities: [Problem (i)]: 1.8. Section 196 of the Act provides that whoever drives a motor vehicle or causes or allows a motor vehicle to be driven in contravention of the provisions of Section 146 shall be punishable with imprisonment which may be extended to three months, or with fine which may extend to Rs. 1000/-, or with both. Though the statute requires prosecution of the driver and owner of uninsured vehicles, this is seldom done. Thereby a valuable deterrent is ignored. Therefore, it is directed that the Director Generals to issue instructions to prosecute drivers and owners of uninsured vehicles under Section 196 of the Act. [Para 10] Direction to Police Authorities [Problem (iii)]: 2. The Legislature tried to reduce the period of pendency of claim cases and quicken the process of determination of compensation by making two significant changes in the Act, by Amendment Act 54 of 1994, making it mandatory for registration of a motor accident claim within one month of receipt of first information of the accident, without the claimants having to file a claim petition. Neither the police nor the Motor Accidents Claims Tribunals have made any effort to implement the mandatory provisions of the Act viz. s. 158 (6) and s. 166 (4). If these provisions are faithfully and effectively implemented, it will be possible for the victims of accident and/or their families to get compensation, in a span of few months. There is, therefore, an urgent need for the concerned police authorities and Tribunals to follow the mandate of these provisions. [Para 4] General Insurance Council v. State of A.P. 2007 (12) SCC 354, relied on. 2.1. The Director General of Police of each State is directed to instruct all Police Stations in his State to comply with the provisions of Section 158(6) of the Act. The Station House Officers of the jurisdictional police stations shall submit Accident Information Report (AIR) in Form No. 54 of the Central Motor Vehicle Rules,1989 to the jurisdictional Motor Vehicle Claims Tribunal, within 30 days of the registration of the FIR. The police should also collect and furnish the following additional particulars in the AIR to the Tribunal: (i) The age of the victims at the time of accident; (ii) The income of the victim; (iii) The names and ages of the dependent family members. [Para 8] 2.2. The AIR shall be accompanied by the attested copies of the FIR, site sketch/mahazar/photographs of the place of occurrence, driving licence of the driver, insurance policy (and if necessary, fitness certificate) of the vehicle and postmortem report (in case of death) or the Injury/Wound certificate (in the case of injuries). The names/addresses of injured or dependant family members of the deceased should also be furnished to the Tribunal. [Para 8] 2.3. Simultaneously, copy of the AIR with annexures thereto shall be furnished to the concerned insurance company to enable the Insurer to process the claim. [Para 8] 2.4. The police shall notify the first date of hearing fixed by the Tribunal to the victim (injured) or the family of the victim (in case of death) and the driver, owner and insurer. If so directed by the Tribunal, the police may secure their presence on the first date of hearing. [Para 8] 2.5. To avoid any administrative difficulties in immediate implementation of Sections 158(6) of the Act, such implementation to be carried out in three stages. In the first stage, all police stations/claims Tribunals in the NCT Region and State Capital regions shall implement the provisions by end of April 2010. In the second stage, all the police stations/claims Tribunals in district headquarters regions shall implement the provisions in the first stage by the end of August 2010. In the third stage, all police stations/Claims Tribunals shall implement the provisions by the end of December, 2010. [Para 9] 2.6. The Transport Department, Health Department and other concerned departments shall extend necessary co-operation to the Director-Generals to give effect to Section 158 (6). [Para 11] Directions to Motor Accident Claims Tribunals [Problem (iii)]: 3. The Registrar General of each High Court is directed to instruct all Claims Tribunals in his State to register the reports of accidents received under Section 158(6) of the Act as applications for compensation under Section 166(4) of the Act and deal with them without waiting for the filing of claim applications by the injured or by the family of the deceased. The Registrar General shall ensure that necessary Registers, forms and other support is extended to the Tribunal to give effect to Section 166(4) of the Act. [Para 12] 3.1. The Tribunals are required to follow the steps mentioned in para 13 without prejudice to the discretion of each Tribunal to follow such summary procedure as it deems fit as provided under Section 169 of the Act. Many Tribunals instead of holding an inquiry into the claim by following suitable summary procedure, as mandated by Section 168 and 169 of the Act, tend to conduct motor accident cases like regular civil suits. This should be avoided. The Tribunal shall take an active role in deciding and expeditious disposal of the applications for compensation and make effective use of Section 165 of the Evidence Act, 1872, to determine the just compensation. [Para 14] Suggestions to Insurance Companies [Problem (iii)]: 4.1. In cases of death, where the liability of the insurer is not disputed, the insurance companies should, without waiting for the decision of the Motor Accidents Claims Tribunal or a settlement before the Lok Adalat, endeavour to pay to the family (Legal representatives) of the deceased, compensation as per the standard formula determined by the decisions of this Court. [Para 15] 4.2. In cases of injuries to any accident victim, where the liability is not disputed, the insurer should offer treatment at its cost to the injured, without waiting for an award of the Tribunal. If insurance companies can meet the bills for treatment of those who have taken a medical insurance policy, there is no reason why they should not extend a similar treatment to the accident victims of vehicles insured with them. [Para 16] Suggestion to Insurance Companies [Problem (iv)]: 5.1. To protect and preserve the compensation amount awarded to the families of the deceased victim special schemes may be considered by the insurance companies in consultation with the Life Insurance Corporation of India, State Bank of India or any other Nationalized Banks. One proposal is for formulation of a scheme in consultation with Nationalized Banks under which the compensation is kept in fixed deposit for an appropriate period and interest is paid by the Bank monthly to the claimants without any need for claimants having to approach either the court or their counsel or the Bank for that purpose. The scheme should ensure that the amount of compensation is utilized only for the benefit of the injured claimants or in case of death, for the benefit of the dependent family. [Para 18] 5.2. The Insurance companies may also consider offering an annuity instead of lump sum compensation. They may prepare an annuity scheme with the involvement of Life Insurance Corporation of India or its own actuaries, under which they can pay a monthly annuity to the widow (for life) and to minor children (till they attain majority) and in addition a lump sum at the end of 20 or 25 years to the widow. The benefit of such annuity scheme may also be extended to victims who are permanently disabled in accidents. Once such schemes are in place, the victims and the Tribunal will have some choice in the manner of payment of compensation. [Para 19] Union Carbide Corporation v. Union of India 1991 (4) SCC 584; General Manager, Kerala State Road Transport Corporation v. Susamma Thomas 1994 (2) SCC 176, referred to. Suggestion to Insurance Companies [Problem (i)] 6. Whenever the insurance companies find that the driver of the insured vehicle possessed fake/forged driving license, they should lodge a complaint with the concerned police for prosecution. This will reduce the incidence of fake licences and increase the road travel safety. [Para 20] Case Law Reference: 2007 (12) SCC 354 Referred to. Para 4 1991 (4) SCC 584 Referred to. Para 5 1994 (2) SCC 176 Referred to. Para 5 2009 (6) SCC 121 Referred to. Para 17 1996 (4) SCC 362 Referred to. Para 27 CIVIL APPELLATE JURISDICTION : SLP (Civil) No(s). 11801-11804 of 2005. From the Judgment & Order dated 7.12.2004 of the High Court of Punjab & Haryana at Chandigarh in F.A.O. No. 4845, 4846, 4847 & 4848 of 2003. Gopal Subramonium, SG (A.C.) Manoj Swarup, Lalita Kohil (for Manoj Swarup & Co.) for the Petitioner. S.L. Gupta, Goodwill Indeevar, Anand Vardhan Sharma, for the Respondent.

Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CIVIL) No. 11801-11804 of 2005 Jai Prakash ……. Petitioner Vs. National Insurance Co. Ltd. & Ors. ……. Respondents O R D E R R.V. RAVEENDRAN, J. We propose to address four problems frequently faced in motor accident claim cases under the Motor … Continue reading

Motor Vehicles Act, 1988 – ss. 166 and 163A; Second Schedule Clause (6) – Fatal motor accident – Of non-earning mother/house-wife – Claim petition u/s. 166 – Compensation to her dependants – Criteria for determination – Held: The claimants are entitled to compensation – The services of non- earning mother/house-wife cannot be compared with that of a house- keeper/servant/employee, but monetary values should be put to the services rendered by them – Though s. 163A does not apply, in terms, to claim u/s. 166, yet in the absence of a definite criteria for determination of compensation payable to the dependants of non-earning house-wife/mother, it would be reasonable to rely upon the criteria specified in clause (6) of the Second Schedule and then to apply appropriate multiplier – Suggestion to Parliament to amend the provisions of the Act and the related laws for giving compensation to the dependents of woman/home-maker – Legislation. Words and Phrases – `Services’ – Meaning of. A woman, aged about 39 years, died in a motor accident. The Appellant No. 1 (husband) and appellant No. 2 (son) filed a petition u/s. 166 of Motor Vehicles Act, 1988, seeking compensation of Rs. 19,20,000/- . The Motor Accidents Claims Tribunal held that the claimants were entitled to compensation. While determining the quantum of compensation, it held that in view of clause (6) of Second Schedule of the Motor Vehicles Act, the income of the deceased could be assessed at Rs. 5,000/- p.m. (Rs. 68,000 p.a.) and after making deduction of Rs. 20,000 towards personal expenses and applying multiplier of 15, the total loss of dependency was assessed as Rs. 6 lakhs. However, the tribunal reduced the amount of compensation to Rs. 2,50,000/-. The appeal, preferred by the claimants was dismissed by the High Court. In the instant appeal, the question for determination was as to what should be the criteria for determination of the compensation payable to the dependants of a woman who dies in a road accident and who does not have regular source of income. =Allowing the appeal, the Court HELD: Per G.S. Singhvi, J. 1. It is not possible to quantify any amount in lieu of the services rendered by the wife/mother to the family i.e. husband and children. However, for the purpose of award of compensation to the dependents, some pecuniary estimate has to be made of the services of housewife/mother. In that context, the term `services’ is required to be given a broad meaning and must be construed by taking into account the loss of personal care and attention given by the deceased to her children as a mother and to her husband as a wife. They are entitled to adequate compensation in lieu of the loss of gratuitous services rendered by the deceased. The amount payable to the dependants cannot be diminished on the ground that some close relation like a grandmother may volunteer to render some of the services to the family which the deceased was giving earlier. [Para 24] [333-H; 334-A-C] 2. It is highly unfair, unjust and inappropriate to compute the compensation payable to the dependents of a deceased wife/mother, who does not have regular income, by comparing her services with that of a house- keeper or a servant or an employee, who works for a fixed period. The gratuitous services rendered by wife/mother to the husband and children cannot be equated with the services of an employee and no evidence or data can possibly be produced for estimating the value of such services. It is virtually impossible to measure in terms of money the loss of personal care and attention suffered by the husband and children on the demise of the house-wife. [Para 32] [338-E-G] 3. Section 163A of Motor Vehicles Act, 1988 contains a special provision for payment of compensation on the basis of a structured formula as indicated in the Second Schedule of the Act, which contains a table prescribing the compensation to be awarded with reference to the age and income of the deceased. The note appended to column (1) of the Second Schedule makes it clear that from the total amount of compensation, 1/3rd is to be deducted in consideration of the expenses which the victim would have incurred towards maintaining himself, had he been alive. Clause (6) of the Second Schedule lays down that in the cases of fatal and disability in non-fatal accidents, income of the non-earning person should be taken as Rs.15,000/- per annum and that of spouse shall be taken as 1/3rd of the income of the earning/surviving spouse. [Para 14] [326-G-H; 327-A-B] 4. Though, Section 163A does not, in terms, apply to the cases in which claim for compensation is filed u/s. 166 of the Act, in the absence of any other definite criteria for determination of compensation payable to the dependents of a non-earning housewife/mother, it would be reasonable to rely upon the criteria specified in clause (6) of the Second Schedule and then apply appropriate multiplier. [Para 32] [338-H; 339-A-B] General Manager Kerala State Road Transport Corporation v. Susamma Thomas (Mrs.) and Ors. 1994 (2) SCC 176; U.P. S.R.T.C. v. Trilok Chandra 1996 (4) SCC 362; Sarla Verma (Smt.) and Ors. v. Delhi Transport Corporation and Anr. 2009 (6) SCC 121 – relied on. Deepal Girishbhai Soni v. United India Insurance Co. Ltd. (2004) 5 SCC 385; Oriental Insurance Co. Ltd. v. Meena Variyal (2007) 5 SCC 428; Minu B. Mehta v. Balkrishna Ramchandra Nayan (1977) 2 SCC 441; Gujarat SRTC v. Ramanbhai Prabhatbhai (1987) 3 SCC 234; Sarla Verma (Smt.) and Ors. v. Delhi Transport Corporation and Anr. (2009) 6 SCC 121; Raj Rani and Ors. v. Oriental Insurance Company Limited and Ors. (2009) 13 SCC 654; Ningamma and Anr. v. United Insurance Company Limited (2009) 13 SCC 710 – referred to. 5. In the instant case, appellant No.1 in his deposition had categorically stated that the deceased was earning Rs.50,000/- per annum by paintings and handicrafts, the respondents did not lead any evidence to controvert the same. Notwithstanding this, the tribunal and the High Court altogether ignored the income of the deceased. The tribunal did advert to the Second Schedule of the Act and observed that the income of the deceased could be assessed at Rs.5,000/- per month (Rs.60,000/- per annum) because the income of her spouse was Rs.15,416/- per month and then held that after making deduction, the total loss of dependency could be Rs.6 lacs. However, without any tangible reason, the tribunal decided to reduce the amount of compensation by observing that the deceased was actually non-earning member and the amount of compensation would be too much. The High Court went a step further and dismissed the appeal by erroneously presuming that neither of the claimants was dependent upon the deceased and the services rendered by her could be estimated as Rs.1250/- per month. The reasons assigned by the tribunal for reducing the amount of compensation are wholly untenable and the approach adopted by the High Court in dealing with the issue of payment of compensation to the appellants was ex facie erroneous and unjustified. [Paras 33 and 34] [339-E-H; 340-A-B] 6. The appellants are entitled to compensation of Rs.6 lacs. Respondent No.1 is directed to pay the said amount of compensation along with interest at the rate of 6% per annum from the date of filing application u/s. 166 of the Act till the date of payment. [Para 35] [340-C-D] Lata Wadha and Ors. v. State of Bihar and Ors. 2001 (8) SCC 197; M.S. Grewal and Anr. v. Deep Chand Sood and Ors. (2001) 8 SCC 151; Municipal Corporation of Greater Bombay v. Laxman Iyer and Anr. (2003) 8 SCC 731; A. Rajam v. M. Manikya Reddy 1989 ACJ 542 ; Oriental Insurance Co. Ltd., v. Shamsher Singh Manu-JK-0180-2002; National Insurance Company Ltd. v. Mahadevan, Minor Buvanadevi, Minor Venkatesh and Parameswaran (2009) ACJ 1373; Chandra Singh and Ors. v. Gurmeet Singh and Ors.(2003) VII AD (Delhi) 222; Krishna Gupta and Ors. v. Madan Lal and Ors. 96 (2002) DLT 829; Captan Singh v. Oriental Insurance Co. Ltd. and Ors.112 (2004) DLT 417; Amar Singh Thukral v. Sandeep Chhatwal 112 (2004) DLT 478 – referred to. Berry v. Humm and Co. (1915) 1 K.B. 627; Regan v. Williamson (1976) 1 W.L.R. 305; Mehmet v. Perry (1977) 2 All ER 52 – referred to. Kemp and Kemp on Quantum of Damages, (Special Edition – 1986) – referred to. Per Asok Kumar Ganguly, J. (Supplementing) 1. Despite the clear constitutional mandate to eschew discrimination on the grounds of sex, in Article 15(1) of the Constitution, in its implementation, there is a distinct gender bias against women in various social welfare legislations and also in judicial pronouncements. [Para 1] [340-E-F] 2. Clause 6 of the Second Schedule to the Motor Vehicles Act, 1988 provides for notional income of those who had no income prior to accident. Clause 6 has been divided into two classes of persons, (a) non-earning persons, and (b) spouse. Insofar as the spouse is concerned, the income of the injured in fatal and non-fatal accident has been categorized as 1/3rd of the income of the earning and surviving spouse. It is, therefore, assumed if the spouse who does not earn, which is normally the woman in the house and the home-maker, such a person cannot have an income more than 1/3rd of the income of the person who is earning. This categorization has been made without properly appreciating the value of the services rendered by the home-maker. To value the income of the home-maker as one-third of the income of the earning spouse is not based on any apparently rational basis. [Para 3] [340-G-H; 341-A-C] 3. In the Census of 2001, it appears that those who are doing household duties like cooking, cleaning of utensils, looking after children, fetching water, collecting firewood have been categorized as non-workers and equated with beggars, prostitutes and prisoners who, according to census, are not engaged in economically productive work. As a result of such categorization about 36 crores (367 million) women in India have been classified in the Census of India, 2001 as non-workers and placed in the category of beggars, prostitutes and prisoners. This entire exercise of Census operation is done under an Act of Parliament. The approach of equating women, who are home- makers, with beggars, prostitutes and prisoners as economically non- productive workers by statutory authorities betrays a totally insensitive and callous approach towards the dignity of labour so far as women are concerned and is also clearly indicative of a strong gender bias against women. It is thus clear that in independent India also, the process of categorizing is dominated by concepts which were prevalent in colonial India and no attempt was made to restructure those categories with a gender sensitivity which is the hallmark in the Constitution of India. [Paras 4, 7 and 8] [341-D-E; 342-B-D] 4. Women are generally engaged in home-making, bringing up children and also in production of goods and services which are not sold in the market but are consumed at the household level. Thus, the work of women mostly goes unrecognized and they are never valued. Therefore, in the categorization by the Census, what is ignored is the well known fact that women make significant contribution at various levels including agricultural production by sowing, harvesting, transplanting and also tending cattles and by cooking and delivering the food to those persons who are on the field during the agriculture season. [Paras 10 and 11] [342-E-H; 343-A] 5. The gender bias has also been reflected in the judgment of the High Court whereby the High Court has accepted the tribunal’s reasoning of assessing the income of the victim at Rs.1,250/- per month. Even if one goes by the formula under clause (6) of the Second Schedule, income of the victim comes to Rs.5,000/- per month. [Para 13] [343-B] National Insurance Co. Ltd. vs. Minor Deepika rep. by her guardian and next friend, Ranganathan and Ors. (2009) 6 MLJ 1005 – referred to. 6. It has to be recognized that the services produced in the home by the women for other members of the household are an important and valuable form of production. It is possible to put monetary value to these services. Alternative to imputing money values is to measure the time taken to produce these services and compare these with the time that is taken to produce goods and services which are commercially viable. One has to admit that in the long run, the services rendered by women in the household sustain a supply of labour to the economy and keep human societies going by weaving the social fabric and keeping it in good repair. If these services are taken for granted and no value is attached to this, this may escalate the unforeseen costs in terms of deterioration of both human capabilities and social fabric. [Paras 23 and 25] [346-G-H; 347-E-F] 7. The time spent by women in doing household work as home-makers is the time which they can devote to paid work or to their education. This lack of sensitiveness and recognition of their work mainly contributes to women’s high rate of poverty and their consequential oppression in society, as well as various physical, social and psychological problems. The courts and tribunals should do well to factor these considerations in assessing compensation for housewives who are victims of road accident and quantifying the amount in the name of fixing `just compensation’. [Para 26] [347-G-H; 348-A] 8. Parliament is required to have a rethinking for properly assessing the value of home-makers and householders work and suitably amending the provisions of Motor Vehicles Act and other related laws for giving compensation when the victim is a woman and a home-maker. Amendments in matrimonial laws may also be made in order to give effect to the mandate of Article 15(1) in the Constitution. [Para 28] [348-D] Case Law Reference: In the Judgment of G.S. Singhvi, J: (2004) 5 SCC 385 Referred to. Para 15 (2007) 5 SCC 428 Referred to. Para 16 (1977) 2 SCC 441 Referred to. Para 16 (1987) 3 SCC 234 Referred to. Para 16 2009 (6) SCC 121 Referred to. Para 17 (2009) 13 SCC 654 Referred to. Para 18 (2009) 13 SCC 710 Referred to. Para 18 (1915) 1 K.B. 627 Referred to. Para 20 (1976) 1 W.L.R. 305 Referred to. Para 21 (1977) 2 All ER 52 Referred to. Para 22 2001 (8) SCC 197 Referred to. Para 25 (2001) 8 SCC 151 Referred to. Para 26 (2003) 8 SCC 731 Referred to. Para 26 1989 ACJ 542 Referred to. Para 27 Manu-JK-0180-2002 Referred to. Para 28 (2009) ACJ 1373 Referred to. Para 29 (2003) VII AD (Delhi) 222 Referred to. Para 30 96 (2002) DLT 829 Referred to. Para 30 112 (2004) DLT 417 Referred to. Para 30 112 (2004) DLT 478 Referred to. Para 30 1994 (2) SCC 176 Relied on. Para 32 1996 (4) SCC 362 Relied on. Para 32 2009 (6) SCC 121 Relied on. Para 32 In the Judgment of Asok Kumar Ganguly, J: (2009) 6 MLJ 1005 Referred to. Para 13 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5843 of 2010. From the Judgment & Order dated 30.4.2004 of the High Court of Judicature at Allahabad in First Appeal from Order number 2408 of 2003. Sanjay Singh, Sharve Singh, Ugra Shankar Prasad for the Appellant. Hetu Arora, Pramod Dayal, Nikunj Dayal Arun Kumar Beriwal, Vishnu Mehra (for B.K. Satija) for the Respondent.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.5843 OF 2010 (Arising out of SLP(C) No.19655 of 2004) Arun Kumar Agrawal and another ……Appellants Versus National Insurance Company and others ……Respondents JUDGMENT G.S. Singhvi, J. 1. Leave granted. 2. What should be the criteria for determination of the compensation payable to … Continue reading

the case of the revenue was that when actual shipment took place, after the expiry of the original shipment period, the international market price of crude sunflower seed oil had increased drastically, and, therefore, the contract price could not be accepted as the `transaction value’ in terms of Rule 4 of CVR 1988. – excess duty is payable ? = Section 14(1) read with Rule 4 provides that the price paid by the importer in the ordinary course of commerce shall be taken to be the value in the absence of any special circumstances indicated in Section 14(1). Therefore, what should be accepted as the value for the purpose of assessment is the price actually paid for the particular transaction, unless the price is unacceptable for the reasons set out in Rule 4(2). admittedly the contract for supply of crude sunflower seed oil @ US $ 435 CIF/PMT was entered into on 26th June 2001. It could not be performed on time because of which extension of time for shipment was agreed to between the contracting parties. It is true that the commodity involved had volatile fluctuations in its price in the international market but having delayed the shipment, the supplier did not increase the price of the commodity even after the increase in its price in the international market. This fact is also proved by the actual amount paid to the supplier. There is no allegation of the supplier and importer being in collusion. It is also not the case of the revenue that the transaction entered into by the respondent was not genuine or under-valued. Nor was there a misdescription of the goods imported. It is also not the case of the revenue that the subject imports fell within any of the situations enumerated in Rule 4(2) of CVR 1988. It is manifest from the show cause 15

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2521 OF 2006 COMMISSIONER OF CUSTOMS, — APPELLANT VISHAKHAPATNAM VERSUS M/S AGGARWAL INDUSTRIES LTD. — RESPONDENT WITH CIVIL APPEAL NO. 1699 OF 2006 CIVIL APPEAL NO. 2129 OF 2006 CIVIL APPEAL NO. 2114 OF 2006 CIVIL APPEAL NO. 2518 OF 2006 CIVIL … Continue reading

whether a specified officer empowered under Section 54(1) of the Wild Life (Protection) Act, 1972 as amended by the Wild Life (Protection) Amendment Act, 2002 (Act 16 of 2003) to compound offences has power, competence and authority, on payment of a sum of money by way of composition of 1 =We hold, as we must, that a specified officer empowered under Section 54(1) of the 1972 Act as substituted by Act 16 of 2003 to compound offences, has no power, competence or authority to order forfeiture of the seized items on composition of the offence by a person who is suspected to have committed offence against the Act. Our answer to the question framed at the outset is in the negative.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2534 OF 2011 Princl. Chief Conservator of Forest & Anr. …. Appellants Versus J.K. Johnson & Ors. ….Respondents JUDGMENT R.M. Lodha, J. The significant and important question raised in this appeal, by special leave, is : whether a specified officer empowered under … Continue reading

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