This tag is associated with 42 posts

Both the Courts below dealt with the suit filed by the Appellant, as though the Respondents had no obligation under the agreement for completing the sale and this appears to have influenced their judgment in dismissing the Appellant’s suit for specific performance.-the Agreement to Sell was executed 34 years ago on 8th September, 1978, in respect of the suit property. We cannot shut our eyes to the fact that during this period the price of real estate has escalated sharply. In addition to the above, the Appellant has not suffered any material loss, since only the earnest money of Rs.50,000/- had been paid by him to the Respondents and the balance consideration was yet to be paid when the agreement came to be terminated. Even the said sum of Rs.50,000/- was returned to the Appellant immediately upon termination of the Agreement and the said amount was duly accepted by the Appellant, though by recording his objections subsequently. The Appellant, therefore, has not suffered any monetary loss, and, on the other hand, the value of the property must have sky-rocketed during the period between the execution of the Agreement till date. In fact, that is why there is no prayer in the alternative for return of any sums advanced, which is one of the usual prayers in suits for specific performance. 30. However, we are also of the view that the Appellant should be compensated for the time spent by him in pursuing his remedy in respect of the Agreement to Sell. Accordingly, we decree the suit, but instead of decreeing the suit for specific performance of the Agreement, we direct that the Respondents shall pay the Appellant costs for the litigation right throughout, assessed at Rs.25,00,000/-, to be paid by the Respondents to the Appellant within one month from date, without the Appellant having to proceed in execution for recovery of the same.

‘ REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.5787 OF 2012 (Arising out of SLP(C)No.13490 of 2009) Rattan Lal (since deceased) Through His Legal Representatives … Appellant Vs. S.N. Bhalla & Ors. … Respondents J U D G M E N T ALTAMAS KABIR, J. 1. Leave granted. 2. The … Continue reading

Section 52 opposition: amendment to Notice of Opposition considered and allowed – ss 58, 44 and 60 considered – Applicant’s claim to ownership not displaced – Trade Mark not deceptively similar to Opponent’s trade mark – reputation of Opponent’s trade mark not shown – opposition not established. Costs awarded against the Opponent. = The Applicant has “[s]ince around March 2007…been a rice importer and trader in Australia”. He says that he “created” the Trade Mark in around February 2008 and that in around May that year he “began using [it] in partnership with Liberty Impex [Pty Ltd]”, a company that he and a Mr Mohammed Moten had incorporated on 20 May 2008, “in connection with rice and the supply of rice in Australia”. He says he had a verbal agreement with Mr Moten at the time to license the company to use the Trade Mark and that, “It was always understood by [the company and Mr Moten] that I was the sole owner of the Trade Mark and that neither [the company nor Mr Moten] had any rights in [it] other than those under licence from me”. – Section 60 of the Act is reproduced below: Trade mark similar to trade mark that has acquired a reputation in Australia 60. The registration of a trade mark in respect of particular goods or services may be opposed on the ground that: (a) another trade mark had, before the priority date for the registration of the first-mentioned trade mark in respect of those goods or services, acquired a reputation in Australia; and (b) because of the reputation of that other trade mark, the use of the first-mentioned trade mark would be likely to deceive or cause confusion.

DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS WITH REASONS Re: Opposition by Taj Food Sales Pty Ltd to registration of trade mark application 1313229 (30, 35) – GRAND TIGER Label – in the name of Gerson Rangel DELEGATE: Michael Kirov REPRESENTATION: Opponent: Carmen Champion of Counsel, instructed by Matthews Folbigg Lawyers Applicant: Matthew Hall, Legal Practitioner, … Continue reading

The policy of allocation of natural resources for public good can be defined by the legislature, as has been discussed in the foregoing paragraphs. Likewise, policy for allocation of natural resources may also be determined by the executive. The parameters for determining the legality and constitutionality of the two are exactly the same. In the aforesaid view of the matter, there can be no doubt about the conclusion recorded in the “main opinion” that auction which is just one of the several price recovery mechanisms, cannot be held to be the only constitutionally recognized method for alienation of natural resources. That should not be understood to mean, that it can never be a valid method for disposal of natural resources (refer to paragraphs 10 to 12 of my instant opinion). I would therefore conclude by stating that no part of the natural resource can be dissipated as a matter of largess, charity, donation or endowment, for private exploitation. Each bit of natural resource expended must bring back a reciprocal consideration. The consideration may be in the nature of earning revenue or may be to “best subserve the common good”. It may well be the amalgam of the two. There cannot be a dissipation of material resources free of cost or at a consideration lower than their actual worth. One set of citizens cannot prosper at the cost of another set of citizens, for that would not be fair or reasonable.NOW THEREFORE, in exercise of powers conferred upon me by clause (1) of Article 143 of the Constitution of India, I, Pratibha Devisingh Patil, President of India, hereby refer the following questions to the Supreme Court of India for consideration and report thereon, namely: Q.1 Whether the only permissible method for disposal of all natural resources across all sectors and in all circumstances is by the conduct of auctions? Q.2 Whether a broad proposition of law that only the route of auctions can be resorted to for disposal of natural resources does not run contrary to several judgments of the Supreme Court including those of Larger Benches? Q.3 Whether the enunciation of a broad principle, even though expressed as a matter of constitutional law, does not really amount to formulation of a policy and has the effect of unsettling policy decisions formulated and approaches taken by various successive governments over the years for valid considerations, including lack of public resources and the need to resort to innovative and different approaches for the development of various sectors of the economy? Q.4 What is the permissible scope for interference by courts with policy making by the Government including methods for disposal of natural resources? Q.5 Whether, if the court holds, within the permissible scope of judicial review, that a policy is flawed, is the court not obliged to take into account investments made under the said policy including investments made by foreign investors under multilateral/bilateral agreements? Q.6 If the answers to the aforesaid questions lead to an affirmation of the judgment dated 02.02.2012 then the following questions may arise, viz. (i) whether the judgment is required to be given retrospective effect so as to unsettle all licences issued and 2G spectrum (800, 900, and 1800 MHz bands) allocated in and after 1994 and prior to 10.01.2008? (ii) whether the allocation of 2G spectrum in all circumstances and in all specific cases for different policy considerations would nevertheless have to be undone? And specifically iii) Whether the telecom licences granted in 1994 would be affected? iv) Whether the Telecom licences granted by way of basic licences in 2001 and licences granted between the period 2003-2007 would be affected? v) Whether it is open to the Government of India to take any action to alter the terms of any licence to ensure a level playing field among all existing licensees? vi) Whether dual technology licences granted in 2007 and 2008 would be affected? vii) Whether it is necessary or obligatory for the Government of India to withdraw the Spectrum allocated to all existing licensees or to charge for the same with retrospective effect and if so on what basis and from what date? Q.7 Whether, while taking action for conduct of auction in accordance with the orders of the Supreme Court, it would remain permissible for the Government to: (i) Make provision for allotment of Spectrum from time to time at the auction discovered price and in accordance with laid down criteria during the period of validity of the auction determined price? (ii) Impose a ceiling on the acquisition of Spectrum with the aim of avoiding the emergence of dominance in the market by any licensee/applicant duly taking into consideration TRAI recommendations in this regard? iii) Make provision for allocation of Spectrum at auction related prices in accordance with laid down criteria in bands where there may be inadequate or no competition (for e.g. there is expected to be a low level of competition for CDMA in 800 MHz band and TRAI has recommended an equivalence ratio of 1.5 or 1.3X1.5 for 800 MHz and 900 MHz bands depending upon the quantum of spectrum held by the licensee that can be applied to auction price in 1800 MHz band in the absence of a specific price for these bands)? Q.8 What is the effect of the judgment on 3G Spectrum acquired by entities by auction whose licences have been quashed by the said judgment? NEW DELHI; DATED: 12 April 2012 PRESIDENT OF INDIA”

REPORTABLE IN THE SUPREME COURT OF INDIA ADVISORY JURISDICTION RE: SPECIAL REFERENCE NO.1 OF 2012 [Under Article 143(1) of the Constitution of India]   O P I N I O N   D.K. JAIN, J. [FOR S.H. KAPADIA, CJ, HIMSELF, DIPAK MISRA & RANJAN GOGOI, JJ.]   In exercise of powers conferred under Article 143(1) … Continue reading

the exoneration in the departmental proceeding= It is well settled that the standard of proof in department proceeding is lower than that of criminal prosecution. It is equally well settled that the departmental proceeding or for that matter criminal cases have to be decided only on the basis of evidence adduced therein. Truthfulness of the evidence in the criminal case can be judged only after the evidence is adduced therein and the criminal case can not be rejected on the basis of the evidence in the departmental proceeding or the report of the Inquiry Officer based on those evidence.- the exoneration in the departmental proceeding ipso facto would not result into the quashing of the criminal prosecution. We hasten to add, however, that if the prosecution against an accused is solely based on a finding in a proceeding and that finding is set aside by the superior authority in the hierarchy, the very foundation goes and the prosecution may be quashed. But that principle will not apply in the case of the departmental proceeding as the criminal trial and the departmental proceeding are held by two different entities. Further they are not in the same hierarchy.


In view of the aforesaid judgments of the Constitution Benches, we hold that Article 254(2) of the Constitution is not available to the appellants for seeking a declaration that the Market Act would prevail over the Control Order and that transactions involving the purchase of sugarcane by the factories operating in the market areas would be governed by the provisions contained in the Market Act. As a corollary, we hold that the High Court did not commit any error by quashing the notices issued by appellant – Market Committees to the respondents requiring them to take licence under the Market Act and pay market fee on the purchase of sugarcane from Cane Growers/Cane Growers Cooperative Societies.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.6186 OF 2012 (Arising out of SLP(C) No.19092 of 2006) Krishi Upaj Mandi Samiti, Narsinghpur … Appellant(s) versus M/s. Shiv Shakti Khansari Udyog and others … Respondents With CIVIL APPEAL NO.6187 OF 2012 (Arising out of SLP(C) No.3414 of 2007) CIVIL APPEAL NO.6188 … Continue reading

As far as the land meant for the Children’s amusement park is concerned, the same was hardly put to the full use. In as much as this entire parcel of land of about 7 acres was not utilized, and since it was an open parcel of land, there was nothing wrong in the State Government deciding to retain it as an open parcel of land, and to change the land-use thereof from commercial to a regional park. The notification cannot be faulted on that count either. 27. In the circumstances, we do not find any error in the impugned judgment of the High Court. The appeal is therefore dismissed. Parties will bear their own costs.

Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION Civil Appeal No. 6105 OF 2012 (Arising out of SLP No. 16416 OF 2011) Mangal Amusement Park (P) Ltd. & Anr. … Appellants Versus State of Madhya Pradesh & Others … Respondents J U D G E M E N T H.L. Gokhale J. Leave … Continue reading

Whether the Ld.CIT(A) is lawfully justified in law in holding that income from sale of Bonsai plants is agricultural income when no basic agricultural operations are carried out but only subsequent non-basic operations are carried out at the location of the plants where it was grown wild or spontaneously and little operation takes place inside the Farm for a very brief period before the product is saleable without any conjunction with basic operations ( as no basic operation need to be undertaken in this case) clearly violating the settled law of the and as enunciated by the Hon’ble Apex Court in CIT Vs. Raja Binoy Kuniar Sahas Roy [1957] 32 ITR 466.”The bonsai tree is nothing but a product on which primary and basic operation of agriculture is carried insofar as in order to make the biological change in it, it had to make eligible continue to live within a limited area. This clearly indicates that the trees/plant uprooted from soil and taken to farm in pot or polythene bags filled with soil for sale or transportation will not affect or change the nature of agricultural operations. Bonsai plants have been prepared on the land by the assessee and there are several agricultural operations, as explained in brief and observed in the order of the authorities below, that transplanting in a suitable container including pots and kept at the proper place i.e., green house or in the shed and after performing several operations, such as weeding, watering, manuring etc., they are made ready for sale as bonsai plant. It was not necessary to plough the land which is a must for implanting a seed. The very nature of the plant ultimately nurtured, is such that it has to be taken care of independently. Once the plants are able to live or out grow the basic agricultural operation carried out and they are ready for sale insofar as the bonsai is to live the life of the original tree which fetches a value

Reena Panda, Balasore vs Department Of Income Tax on 25 June, 2012 IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK Before : Shri K.K.Gupta, AM, and Shri K.S.S.Prasad Rao, JM ITA No.084/CTK/2012 and C.O.No.18/CTK/2012 (Assessment Year 2008-09) (C.O. filed by the assessee) Income-tax Officer, Ward 1, Versus Smt. Reena Panda, Ichhapur, Balasore. Bhanaga, Balasore … Continue reading

In view of my findings on issue No.4, the election petition cannot succeed, because the High Court cannot form an opinion that the 8th respondent was disqualified to be chosen to fill the seat on the date of his election or that his nomination has been improperly accepted or that any non-compliance with the Constitution or the Representation of the People Act, 1951 or any Rules or Orders made under the Act has been committed within the meaning of Section 100(1) of the Act and consequently, an order has to be made dismissing the election petition under Section 98(a) of the Act, while leaving the costs to be borne by the parties respectively under Section 99(1)(b) of the Act. 64. Accordingly, the election petition is dismissed without costs. A copy of this order be communicated to the Election Commission of India and the Speaker of the Andhra Pradesh Legislative Assembly in terms of Section 103 of the Representation of the People Act, 1951. _____________________

HON’BLE SRI JUSTICE G. BHAVANI PRASAD Election Petition No.7 of 2009 21/08/2012 S.A.K. Mynoddin The Chief Election Commissioner,Secretariat Buildings, Hyderabad and others COUNSEL FOR THE PETITIONER: Sri V. Mallik COUNSEL FOR 1 TO 7 RESPONDENTS: — (R.1 to R.7 deleted from the array of respondents) ^COUNSEL FOR 8TH RESPONDENT: Sri B. Adinarayana Rao COUNSEL FOR … Continue reading

materials on record do not show that Shri P. Chidambaram had abused his position as a Minister of Finance or conspired or colluded with A. Raja so as to fix low entry fee by non- visiting spectrum charges fixed in the year 2001. No materials are also made available even for a prima facie conclusion that Shri P. Chidambaram had deliberately allowed dilution of equity of the two companies, i.e. Swan and Unitech. No materials is also available even prima facie to conclude that Shri P. Chidambaram had abused his official position, or used any corrupt or illegal means for obtaining any pecuniary advantage for himself or any other persons, including Shri A. Raja. 54. We are, therefore, of the considered opinion that no case is made out to interfere with the order dated 4.2.2012 in C.C. No. 01 (A) / 11 passed by Special Judge CBI (04) (2G Spectrum Cases), New Delhi or to grant reliefs prayed for in I.A. No. 34 of 2012. Special Leave Petition (Crl.) No. 1688 of 2012 is, therefore, not entertained, so also I.A. No. 34 of 2012 in Civil Appeal No.10660 of 2010 and they are accordingly stand rejected. …………………………J. (G.S. Singhvi)

Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (Crl.) No.1688 of 2012 and I.A. No. 34 of 2012 In CIVIL APPEAL No. 10660 of 2010 Subramanian Swamy ? Petitioner/ Appellant(s) Versus A. Raja ? Respondent O R D E R K.S. RADHAKRISHNAN, J. 1. Common questions arise for consideration in … Continue reading

‘rule of seniority’- On being selected by the District Level Committee which had considered the candidature of those sponsored by the Employment Exchanges, respondent Nos.1 to 13 were appointed as Masters in the subjects of Science, Maths and Social Studies, respondent No.14 was appointed as Physical Training Instructor and respondent No.15 was appointed as Hindi Teacher purely on ad hoc basis between 1994 and 1996 by the District Education Officers.- None of the aforesaid judgments can be read as laying down a proposition of law that a person who is appointed on purely ad hoc basis for a fixed period by an authority other than the one who is competent to make regular appointment to the service and such appointment is not made by the specified recruiting agency is entitled to have his ad hoc service counted for the purpose of fixation of seniority. Therefore, the respondents, who were appointed as Masters in different subjects, Physical Training Instructor and Hindi Teacher on purely ad hoc basis without following the procedure prescribed under the 1955 Rules are not entitled to have their seniority fixed on the basis of total length of service. As a corollary to this, we hold that the direction given by the High Court for refixation of the respondents’ seniority by counting the ad hoc service cannot be approved. 25. In the result, the appeal is allowed, the impugned order is set aside and the writ petition filed by the respondents is dismissed. The parties are left to bear their own costs.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5947 OF 2012 (Arising out of SLP (C) No. 29274 of 2009) State of Haryana and others … Appellants Versus Vijay Singh and others … Respondents   J U D G M E N T G. S. Singhvi, J. 1. Leave granted. … Continue reading

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