This tag is associated with 6 posts

Khasara entries do not convey title = Suit for declaration of title and injunction – trial court dismissed the suit as it belongs to Municipality /defendant – High court reversed the trial court order basing on revenue entries by saying that ” when the respondents- defendants did not produce property register to show that this property was ever recorded as property of the Municipal Corporation. At one stage it was recorded as Nazul land belonging to the State when the area had not come within the municipal limits. When the area came within the municipal limits it was mentioned to be Behatnam (under management) of the Municipal Corporation. But the possession and title of the plaintiffs has been recorded throughout even thereafter and to have established Abadi over this land, and therefore, the defendants-respondents could not object to the title and possession of the plaintiffs and the suit for declaration of title and injunction ought to have been decreed.” – Apex court set aside the judgment of High court and held that The High Court committed a grave and manifest error of law in reversing the well reasoned judgment and decree passed by the Trial Court by simply placing reliance upon Khasaras entries even without properly appreciating the settled law that Khasara entries do not convey title of the suit property as the same is only relevant for the purposes of paying land revenue and it has nothing to do with ownership.= MUNICIPAL CORPORATION, GWALIOR … APPELLANT VERSUS PURAN SINGH ALIAS PURAN CHAND & ORS. … RESPONDENTS = 2014 – July. Part – http://judis.nic.in/supremecourt/filename=41724

Khasara entries do  not  convey  title  = Suit for declaration of title and injunction – trial court dismissed the suit as it belongs to Municipality /defendant – High court reversed the trial court order basing on revenue entries by saying that ” when  the respondents- defendants did not produce property register to show that this property  was … Continue reading

the Electricity Act, 2003= whether the CERC and the Tribunal have correctly interpreted Regulation 2.5 of the said regulations while permitting capitalisation of the additional expenditure for purposes of determining the tariff. = the respondent-Corporation sought additional capitalisation of the expenditure on the project in question relevant to the period 2001-2004. The Central Commission determined the additional capitalisation and allowed the same to the respondent, which determination was upheld by the Tribunal with the modification to which we have adverted in the beginning of this order. 22. There is no gainsaying that the prayer for additional capitalisation was made by the respondent-Corporation and considered by CERC after the Electricity Act 2003 had come into force, repealing the earlier enactments. The new legislation did not set out any role for the CEA, in the matter of approval of the schemes for the generating companies or the capital expenditure for the completion of such projects. The entire exercise touching the regulation of the tariff of generating companies owned or controlled by the Central Government, like the respondent was entrusted to the Central Commission. The role of the Central Electricity Authority established under Section 7 of the 2003 Act, was limited to matters enumerated under Section 73 of the Act, approval of the scheme for generating companies or the capital expenditure for the completion of such projects or capitalisation of the additional expenditure not being one such function. The CERC was, therefore, right when it said that the Central Electricity Authority had no part to play in the matter of approval for purposes of capitalisation of the extra expenditure incurred on a project. That was so notwithstanding the continuance of Regulation 2.5 of the regulations framed by the CERC providing for such an approval by the CEA. The far reaching changes that came about in the legal framework with the enactment of the 2003 Act, made Regulation 2.5 redundant in so far as the same envisaged a reference to the CEA or an Independent Agency for approval of the additional capitalisation. Insistence on a reference, to the CEA for such approval, despite the sea change in the legal framework would have been both unnecessary as well as opposed to the spirit of new law that reduced the role of CEA to what was specified in Section 73 of the Act. The CERC and the Tribunal were in that view justified in holding that a reference to the CEA was not indicated nor did the absence of such a reference denude the CERC of its authority to fix the tariff after the 2003 Act had come into force. That was so notwithstanding the fact that proviso to Section 61 of the Electricity Act, 2003 continued the terms and conditions for determination of tariff under the enactments mentioned therein and those specified in the Schedule for a period of one year or till such terms were specified under that section whichever was earlier. In the result this appeal fails and is hereby dismissed with costs assessed at Rs.50,000/- Civil Appeal Nos.5361-5362 of 2007 23. In these appeals the order impugned by the appellant places reliance upon the order passed by the Tribunal, in Appeal No.36 of 2006 against which order we have in the foregoing part of this judgment dismissed the appeal preferred by the appellant. On a parity of reasoning these appeals are also destined to be dismissed and are, accordingly, dismissed with costs assessed at Rs.50,000/-.

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40786   REPORTABLE     IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.4117 OF 2006   U.P. Power Corporation Ltd. …Appellant   Versus   N.T.P.C. Ltd. & Ors. …Respondents   WITH CIVIL APPEAL NOS.5361-5362 OF 2007               J U D G M E N … Continue reading

Service matter = Reinstatement with compensation but not with back wages = After considering the evidence adduced before the Tribunal, it had come to the conclusion that the termination of the respondent was not legal and therefore, by an award dated 30th June, 2001, the order terminating service of the respondent dated 28th February, 1998, had been quashed and it was directed that the respondent should be reinstated in service as a driver with continuity of service and with arrears of salary for the period during which the respondent-workman was not permitted to perform his duties.= However, we feel that the respondent should not have been awarded full back wages. 10. Instead of awarding back wages, in view of the facts of the case, it would be just and proper to award, in all a sum of Rs.5 lacs by way of compensation to the respondent-workman. It had been submitted that the appellant-Corporation had already paid more than Rs.3,60,000/- to the respondent-workman and if it is so, the amount so paid shall be adjusted while paying the compensation of Rs.5 lacs. Thus, we direct that by way of compensation, in all Rs.5 lacs should be given to the respondent-workman in lieu of back wages. The said amount shall be paid to the workman within four weeks from today. 11. If the respondent-workman has not been reinstated till today, the appellant-Corporation shall reinstate him within four weeks from today. 12. In the above circumstances, the impugned judgment delivered by the High Court is modified to the above extent. The appeal is allowed to the extent stated hereinabove. No order as to costs.

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40667 NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6968 OF 2013 (Arising out of SLP (C) No. 22730 of 2013)     U.P. State Road Transport Corporation …..Appellant   Versus C.P. Goswami …..Respondent     J U D G M E N T 1 ANIL R. DAVE, J. … Continue reading

Arbitration and Conciliation Act, 1996: s. 45 – Reference to arbitration under – Scope of – International commercial arbitration – Multi-party agreements – Joint venture agreements with different parties – Some of the agreements contained arbitration clause while the others did not – Dispute between parties leading to filing of suit – High Court referred the entire suit (including the non-signatory parties to the arbitration agreement) for arbitration u/s. 45 – Joinder of non-signatory parties to arbitration – Permissibility – Held: Joinder of non-signatory parties to arbitration is permissible – They can be referred to arbitration, provided they satisfy the pre-requisites u/ss. 44 and 45 r/w Schedule I of the Act – The cases of group companies or where various agreements constitute a composite transaction with intrinsically interlinked cause of action, can be referred to arbitration, even if the disputes exist between signatory or even non-signatory parties – However, the discretion of the court has to be exercised in exceptional, limiting, befitting and cases of necessity and very cautiously – Expression `any person claiming through or under him’ used in s. 45, takes within its ambit persons who are in legal relationships via multiple and multi-party agreements, though they may not all be signatories to the arbitration clause – In the present case, the corporate structure of the companies demonstrates a definite legal relationship between the parties to the lis or persons claiming under them – Their contractual relationship spells out the terms, obligations and roles of the respective parties which they were expected to perform for attaining the object of successful completion of the joint venture agreement – All the other agreements were intrinsically inter-connected with the mother agreement – All the agreements were part of a composite transaction to facilitate implementation of principal agreement – Hence, all the parties to the lis were covered under expression “any person claiming through or under” the principal (mother) agreement – Arbitration clause in the principal agreement was comprehensive enough to include all disputes arising “under and in connection with” principal agreement – Conduct of parties and even subsequent events show that the parties had executed, intended and actually implemented composite transaction contained in principal/mother agreement – Hence, direction to refer the disputes to arbitration -Convention on Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) – Article II (3) – ICC Rules – UNCITRAL Model Rules. s. 45 – Issues under – Determination of – Issue of jurisdiction should be decided at the beginning of the proceedings itself and they should have finality – Determination of fundamental issues as contemplated u/s. 45 at the very first instance is not only appropriate but is also the legislative intent – Jurisdiction. Code of Civil Procedure, 1908 – s. 9 – Jurisdiction of civil courts – Jurisdiction of the court and the right to a party emerging from s. 9 is not an absolute right, but contains inbuilt restrictions – Civil courts have jurisdiction to try all suits except those which is either expressly or impliedly barred – The provisions of s. 45 of the 1996 Act would prevail over the provisions of CPC – Arbitration and Conciliation Act, 1996 – s. 45. Doctrines/Principles: `Group of Companies’ Doctrine; Principle of `incorporation by reference’; Principle of `composite performance’; Principle of `agreements within an agreement’ and Principle of `Kompetenz kompetenz’ – Discussed. Precedent – Observations – Precedential value – Held: The observations to be construed and read to support the ratio decidendi – They would not constitute valid precedent as it would be hit by the doctrine of stare decisis – Doctrine – Constitution of India, 1950 – Art. 141. Words and Phrases: Expression `connection’ – Meaning of. The questions which inter alia arose for consideration in the present appeals were: (1) What is the ambit and scope of Section 45 of the Arbitration and Conciliation Act, 1996; (2) Whether in a case where multiple agreements were signed between different parties some containing an arbitration clause and others not and where the parties were not identically common in proceedings before the Court (in a suit) and the arbitration agreement, a reference of disputes as a whole or in part could be made to the arbitral tribunal, more particularly, where the parties to an action were claiming under or through a party to the arbitration agreement; and (3) Whether the principles enunciated in the case of *Sukanya Holdings Pvt. Ltd. v. Jayesh H. Pandya was the correct exposition of law.= Dismissing the appeals, the Court HELD: 1.1 Section 45 is a provision falling under Chapter I of Part II of the Arbitration and Conciliation Act, 1996 which is a self-contained Code. The expression `person claiming through or under’ would mean and take within its ambit multiple and multi-party agreements, though in exceptional case. Even non-signatory parties to some of the agreements can pray and be referred to arbitration provided they satisfy the pre-requisites under Sections 44 and 45 r/w Schedule I. Reference of non-signatory parties is neither unknown to arbitration jurisprudence nor is it impermissible. [Para 167] 1.2 An arbitration agreement, under Section 45 of the 1996 Act, should be evidenced in writing and in terms of Article II of Schedule 1, an agreement in writing shall include an arbitral clause in a contract or an arbitration agreement signed by the parties or contained in an exchange of letters or telegrams. Thus, the requirement that an arbitration agreement be in writing is an expression incapable of strict construction and requires to be construed liberally, as the words of this Article provide. Even in a given circumstance, it may be possible and permissible to construe the arbitration agreement with the aid and principle of `incorporation by reference’. Though the New York Convention is silent on this matter, in common practice, the main contractual document may refer to standard terms and conditions or other standard forms and documents which may contain an arbitration clause and, therefore, these terms would become part of the contract between the parties by reference. The solution to such issue should be case-specific. The relevant considerations to determine incorporation would be the status of parties, usages within the specific industry, etc. Cases where the main documents explicitly refer to arbitration clause included in standard terms and conditions would be more easily found in compliance with the formal requirements set out in the Article II of the New York Convention than those cases in which the main contract simply refers to the application of standard forms without any express reference to the arbitration clause. [Para 72] M.V. “Baltic Confidence” and Anr. v. State Trading Corporation of India Ltd. and Anr. (2001) 7 SCC 473: 2001 (1) Suppl. SCR 699; Olympus Superstructure Pvt. Ltd. v. Meena Vijay Khetan and Ors. (1999) 5 SCC 651: 1999 (3) SCR 490 – relied on 1.3 Under the Indian Law, greater obligation is cast upon the Courts to determine whether the agreement is valid, operative and capable of being performed at the threshold itself. Such challenge has to be a serious challenge to the substantive contract or to the agreement, as in the absence of such challenge, it has to be found that the agreement was valid, operative and capable of being performed; the dispute would be referred to arbitration. [Para 78] State of Orissa v. Klockner and Company and Ors. AIR 1996 SC 2140: 1996 (1) Suppl. SCR 368 – relied on. Abu Dhabi Gas Liquefaction Co. Ltd. v. Eastern Bechtel Corp.(1982) 2 Lloyd’s Rep. 425, CA – referred to. Law and Practice of International Commercial Arbitration by Alan Redfern and Martin Hunder (Fourth Edition) 1.4 The legislative intent and essence of the 1996 Act was to bring domestic as well as international commercial arbitration in consonance with the UNCITRAL Model Rules, the New York Convention and the Geneva Convention. The New York Convention was physically before the Legislature and available for its consideration when it enacted the 1996 Act. Article II of the Convention provides that each contracting State shall recognize an agreement and submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not concerning a subject matter capable of settlement by arbitration. Once the agreement is there and the Court is seized of an action in relation to such subject matter, then on the request of one of the parties, it would refer the parties to arbitration unless the agreement is null and void, inoperative or incapable of performance. Still, the legislature opted to word Section 45 somewhat dissimilarly. Section 8 of the 1996 Act also uses the expression `parties’ simpliciter without any extension. In significant contra-distinction, Section 45 uses the expression `one of the parties or any person claiming through or under him’ and `refer the parties to arbitration’, whereas the rest of the language of Section 45 is similar to that of Article II(3) of the New York Contention. The Court cannot ignore this aspect and has to give due weightage to the legislative intent. It is a settled rule of interpretation that every word used by the Legislature in a provision should be given its due meaning. The Legislature intended to give a liberal meaning to this expression. [Paras 88 and 89] 1.5 The language and expressions used in Section 45, `any person claiming through or under him’ including in legal proceedings may seek reference of all parties to arbitration. Once the words used by the Legislature are of wider connotation or the very language of Section is structured with liberal protection then such provision should normally be construed liberally. [Para 90] 1.6 In view of the legislative object and the intent of the framers of the statute, i.e., the necessity to encourage arbitration, the Court is required to exercise its jurisdiction in a pending action, to hold the parties to the arbitration clause and not to permit them to avoid their bargain of arbitration by bringing civil action involving multifarious cause of action, parties and prayers. [Para 91] 1.7 The scope of concept of `legal relationship’ as incorporated in Article II(1) of the New York Convention vis-

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7134 OF 2012 (Arising out of SLP (C) No.8950 of 2010)   Chloro Controls (I) P. Ltd. … Appellant Versus Severn Trent Water Purification Inc. & Ors. … Respondents WITH CIVIL APPEAL NOS. 7135-7136 OF 2012 (Arising out of SLP (C) No.26514-26515 … Continue reading

A Daily worker on termination of his service not entitled for re-employment as of right as the termination is not amounts to retrenchment of an employee = whether termination of services of the respondent on the expiry of the contract period would amount to retrenchment within the meaning of Section 2(oo) of the Industrial Disputes Act, 1948 (for short “the ID Act”). = Section 2(bb) says that if the termination of the service of workman is as a result of non-renewal of the contract between the employer and the workman on its expiry of such contract being terminated under a stipulation in that behalf contained therein, the same would not constitute retrenchment.= Facts would clearly indicate that the respondent’s service was terminated on the expiry of the fixed periods mentioned in the office orders and that he had worked only for 54 days. The mere fact that the appointment orders used the expression “daily wages” does not make the appointment “Casual” because it is the substance that matters, not the form. The contract of appointment consciously entered into by the employer and the employee would, over and above the specific terms of the written agreement, indicates that the employment is short-lived and the same is liable to termination, on the fixed period mentioned in the contract of appointment.= “25G. Procedure for retrenchment.- Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman. 25H. Re- employment of retrenched workmen.- Where any workmen are retrenched, and the employer proposes to take into his employ any persons, he shall, in such manner as may be prescribed, give an opportunity 2[ to the retrenched workmen who are citizens of India to offer themselves for re- employment and such retrenched workman] who offer themselves for re- employment shall have preference over other persons.”= Section 25H will apply only if the respondent establishes that there had been retrenchment. Facts will clearly indicate that there was no retrenchment under Section 2(oo) read with Section 2(bb) of the ID Act. Consequently, Section 25H would not apply to the facts of the case. Similar is the factual and legal situation in the civil appeal arising out of SLP(C) No.5387 of 2012 as well. We are sorry to note that the Labour Court, learned Single Judge and the Division Bench have not properly appreciated the factual and legal position in this case. When rights of parties are being adjudicated, needless to say, serious thoughts have to be bestowed by the Labour Court as well as the High Court. For the above-mentioned reasons we allow both the appeals, set aside the award passed by the Labour Court and confirmed by the High Court. However, there will be no order as to costs.

 published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40563 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPEALLATE JURISDICTION CIVIL APPEAL NO. 5498 OF 2013 (Arising out of SLP(C) No.5387 of 2012) Bhavnagar Municipal Corporation Appellant Versus Salimbhai Umarbhai Mansuri Respondent with CIVIL APPEAL NO. 5510 OF 2013 (Arising out of SLP(C) No.5390 of 2012) J U D G M E N … Continue reading

Ara Municipal Corporation, the Bihar Municipal Officers and Servants Pension Rules, 1987 (for short ‘the Rules’) = While they were working in the Ara Municipal Corporation, the Bihar Municipal Officers and Servants Pension Rules, 1987 (for short ‘the Rules’) came into effect. = The Ara Municipal Corporation, however, did not give effect to the Rules until 19th June, 2004 on which date it adopted resolution to give pensionary benefits to its employees who had retired from service from the year 2000 onwards in accordance with the Rules.- the Division Bench of the High Court upheld the finding of the learned Single Judge that the Rules came into effect on 13-11-1987 but held that as the two writ petitioners had not exercised their option for the pension as required by Rule 4 of the Rules and as their right to pension under the Rules was dependent upon the exercise of their option for pension, they were not entitled for the pension under the Rules. = In the facts of the present case, the Ara Municipal Corporation itself had taken a view that the Rules were not applicable until a resolution is adopted by the Corporation and adopted the resolution only on 19th June, 2004 saying that the pensionary benefits of the Rules will be given to those employees who had retired from service from the year 2000 onwards. The resolution was clearly in contravention of the Rule 1 as well as Rule 4(ii) of the Rules. If the Corporation had taken the correct view that the rules would be effective from 13th November, 1987, the two employees Ramashish Prasad and Vishwanath Ram who were employees of the Ara Municipal Corporation on that date, could have exercised their respective options to switchover to pension scheme under the Rules. This is a case where the Ara Municipal Corporation by taking the view that the Rules were not applicable until adopted by the Corporation had disabled the aforesaid two employees from exercising their option and cannot take advantage of such a disability caused by the Municipal Corporation itself and deny their statutory right to pension under the Rules. Moreover, the two employees have also not received part or whole of provident fund contribution although they have retired in 1996 and 1997 and hence they could not have been deemed to have exercised their option to retain existing provident fund. 9. For the aforesaid reasons, we set aside the impugned judgment of the Division Bench and direct that the appellants will be given the pensionary benefits including pension and family pension, as the case may be, in accordance with the Rules within three months from today. We make it clear that this judgment has been delivered in the facts of the present case and will not be treated as a precedent applicable to all other cases the facts of which are not before this Court.

‘ ‘ PUBLISHED IN http://courtnic.nic.in/supremecourt/qrydisp.asp REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL Nos. 4802-4803 OF 2013 ARISING OUT OF SPECIAL LEAVE PETITION (C) Nos. 14922-14923 OF 2009 SANCHARI DEVI & ORS Appellant(s) VERSUS ARA MUNICIPAL CORPORATION & ORS Respondent(s) JUDGMENT Leave granted. 2. These appeals are against the judgment dated 4th March, 2009 … Continue reading

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