advocatemmmohan
Karnataka
National Pharmaceutical Pricing Authority (NPCA) under the DPCO,1995, – the Drugs (Prices Control) Order (for short, ‘DPCO’) – Fixation of prices /Revised prices of the drugs manufactured & stocked by company by notification – Whether operative in respect of all sales subsequent to 15 days from the date of the notification by the Government in the official gazette/receipt of the price fixation order by the manufacturer – Karnataka High court held that it applies from the date of notification -that revised prices will not apply to the existing stocks but only to new batches of drugs and formulations to be manufactured after 15 days of the notification cannot be accepted. The provisions of the DPC Order are clear that prices should be revised within 15 days even in regard to the formulations which were manufactured prior to the date of notification or those manufactured within 15 days from the date of notification. – Delhi high court held that it applies only after 15 days of notification – Apex court held that Karnataka High court view is correct and Delhi High court view is incorrect – held that it applies only from the date of Notification to all sales & stocks = GlaxoSmithKline Pharmaceuticals Limited (Formerly known as SmithKline Beecham Pharmaceuticals (India) Limited) … Appellant Versus Union of India & Ors. … Respondents = published in http://judis.nic.in/supremecourt/imgst.aspx?filename=41053
National Pharmaceutical Pricing Authority (NPCA) under the DPCO,1995, – the Drugs (Prices Control) Order (for short, ‘DPCO’) – Fixation of prices /Revised prices of the drugs manufactured & stocked by company by notification – Whether operative in respect of all sales subsequent to 15 days from the date of the notification by the Government in the official gazette/receipt of the price … Continue reading
Section 52 of the Transfer of Property Act 1882. Doctrine of lis pendens is based on legal maxim ‘ut lite pendente nihil innovetur’ (During a litigation nothing new should be introduced). A transferee pendente lite is bound by the decree just as much as he was a party to the suit. A litigating party is exempted from taking notice of a title acquired during the pendency of the litigation. = KN Aswathnarayana Setty (D) Tr. LRs. & Ors. …Petitioners Versus State of Karnataka & Ors. …Respondents = published in http://judis.nic.in/supremecourt/imgst.aspx?filename=41041
Section 52 of the Transfer of Property Act 1882. Doctrine of lis pendens is based on legal maxim ‘ut lite pendente nihil innovetur’ (During a litigation nothing new should be introduced). A transferee pendente lite is bound by the decree just as much as he was a … Continue reading
Service = When the appointment of one person held wrong , the other person can not be appointed automatically by way of writ of Mandamus unless in exceptional circumstances = GANAPATH SINGH GANGARAM SINGH RAJPUT … APPELLANT Versus GULBARGA UNIVERSITY REP. BY ITS REGISTRAR & OTHERS … RESPONDENTS = http://judis.nic.in/supremecourt/imgst.aspx?filename=40953
When the appointment of one person held wrong , the other person can not be appointed automatically by way of writ of Mandamus unless in exceptional circumstances = Shivanand challenged the aforesaid selection and appointment in a writ petition filed before the High Court, inter alia, contending that Masters’ Degree in Mathematics will not … Continue reading
Cryptic and non-speaking orders not maintainable and are liable to be set aside
High court with out discussing the pleadings- with out assigning valid reasons – cryptically quashed the complaint which was taken cognizance by Lower court by it’s non-speaking orders – Apex court set aside & remanded for afresh disposal = the impugned judgment does not disclose as to how this finding was … Continue reading
Whether there is an arbitration clause in contract agreement – No – aggrieved party remedy is only civil court = = M/s. P. Dasaratharama Reddy Complex … Appellant versus Government of Karnataka and another … Respondents – http://judis.nic.in/supremecourt/imgst.aspx?filename=40902
Whether there is an arbitration clause in contract agreement – No – aggrieved party remedy is only civil court = Leave granted in SLP (C) Nos. 16117 of 2004, 17147 of 2004, 24655 of 2004, 26073 of 2004, 5951 of 2006, 12552 of 2006, 12553 of 2006, 8597 of … Continue reading
Industrial Disputes Act sec. 25F,25FF sec.25N and Section 17B of I.D. Act – Estopel – State of Maharashtra & Anr. … Appellants Versus Sarva Shramik Sangh, Sangli & Ors. … Respondents = http://judis.nic.in/supremecourt/imgst.aspx?filename=40894
Industrial Disputes Act sec. 25F,25FF sec.25N and Section 17B of I.D. Act – Estopel – Already decided case attained finality – and same was applied with some suitable modifications = Retrenchment of labours temporary having serice of more than 10 years of service with out sufficient notice and with out payment of damages on the trasfer … Continue reading
Sec. 45 Karnataka Land Reforms Act – cultivate tenant = HARSHA V. RAI Vs. STATE OF KARNATAKA & ANR THROUGH LRS published in judis.nic.in/supremecourt/filename=40860
Sec. 45 Karnataka Land Reforms Act – Cultivate tenant – by1st of March, 1974 one must be a cultivating tenant – with out framing proper question , no case is to be determined – Hence the Apex court remanded the case on two counts 1.whether the property said to have been given on lease to … Continue reading
Sanction to prosecution is a conditional precedent = whether the Special Judge/Magistrate is justified in referring a private complaint made under Section 200 Cr.P.C. for investigation by the Deputy Superintendent of Police – Karnataka Lokayukta, in exercise of powers conferred under Section 156(3) Cr.P.C. without the production of a valid sanction order under Section 19 of the Prevention of Corruption Act, 1988.= The High Court, after hearing the parties, took the view that the Special Judge could not have taken notice of the private complaint unless the same was accompanied by a sanction order, irrespective of whether the Court was acting at a pre-cognizance stage or the post- cognizance stage, if the complaint pertains to a public servant who is alleged to have committed offences in discharge of his official duties. The High Court, therefore, quashed the order passed by the Special Judge, as well as the complaint filed against the appellant. ;Taking cognizance of an offence= “It is necessary to mention here that taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the court decides to proceed against the offenders against whom a prima facie case is made out.”; whether, in the above mentioned legal situation, the requirement of sanction is a pre-condition for ordering investigation under Section 156(3) Cr.P.C., even at a pre-cognizance stage. Section 2(c) of the PC Act deals with the definition of the expression “public servant” and provides under Clauses (viii) and (xii) as under: “(viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty. (xii) any person who is an office-bearer or an employee of an educational, scientific, social, cultural or other institution, in whatever manner established, receiving or having received any financial assistance from the Central Government or any State Government, or local or other public authority.”= When a Special Judge refers a complaint for investigation under Section 156(3) Cr.P.C., obviously, he has not taken cognizance of the offence and, therefore, it is a pre-cognizance stage and cannot be equated with post-cognizance stage. = “19. Previous sanction necessary for prosecution.—(1) No court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction— a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government; b) in the case of a person who is employed in connection with the affairs of a State and is not removeable from his office save by or with the sanction of the State Government, of that Government; c) in the case of any other person, of the authority competent to remove him from his office.”- “Section 19(3) – Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)- a) no finding, sentence or order passed by a special judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of absence of, or any error, omission or irregularity in the sanction required under sub-section (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby; b) xxx xxx xxx c) xxx xxx xxx”= Once it is noticed that there was no previous sanction, as already indicated in various judgments referred to hereinabove, the Magistrate cannot order investigation against a public servant while invoking powers under Section 156(3) Cr.P.C. – “Thus, in view of the above, the law on the issue of sanction can be summarized to the effect that the question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty. In order that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person, it is obligatory on the part of the executive authority to protect him….. If the law requires sanction, and the court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab-initio.”= We are of the view that the principles laid down by this Court in the above referred judgments squarely apply to the facts of the present case. We, therefore, find no error in the order passed by the High Court. The appeals lack merit and are accordingly dismissed.
published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40843 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS. 1590-1591 OF 2013 (@ Special Leave Petition (Criminal) Nos.6652-6653 of 2013) Anil Kumar & Ors. ….. Appellants Versus M.K. Aiyappa & Anr. ….. Respondents … Continue reading
Special Public Prosecutor asked not to appear without justifiable cause = the order dated 10.9.2013 passed by the Government of Karnataka asking Shri G. Bhavani Singh – respondent no.4, Special Public Prosecutor (hereinafter referred to as ‘SPP’) in a pending prosecution against the petitioners not to appear in the said matter; the communication dated 14.9.2013 passed by the Chief Justice of High Court of Karnataka at Bangalore by which the Chief Justice has approved the removal of Shri G. Bhavani Singh as SPP, as well as the consequential order dated 16.9.2013 issued by the State Government removing the respondent no.4 from the post of SPP. 2. A prosecution was launched against the petitioners for having assets disproportionate to their known income in the year 1996-1997 in the State of Tamil Nadu. = The Karnataka Civil Services (General Recruitment) Rules, 1977 authorise the State Government to appoint a retired government servant on contractual basis after meeting certain formalities, for a specific period as may be necessary. So far as judicial officers are concerned, their services are governed by the Karnataka Judicial Services (Recruitment) Rules, 1983 and Rule 3(2) thereof provides the application of the rules framed under any law or proviso under Article 309 of the Constitution to judicial officers, though subject to the provisions of Articles 233, 234 and 235 of the Constitution. The Rules of 1983 stand repealed by the Karnataka Judicial Service (Recruitment) Rules 2004 (hereinafter referred to as the ‘Rules 2004’) and Rule 11(2) thereof reads as under: “11(2). All rules regulating the conditions of service of the members of the State Civil Services made from time to time under any law or the proviso to Article 309 of the Constitution of India shall, subject to Articles 233, 234 and 235 be applicable to the Civil Judges (Junior Division), Civil Judges (Senior Division) and the District Judges recruited and appointed under these rules.” Thus, it is evident that the State Government is competent to appoint the learned Special Judge on contractual basis after his retirement for the period required to conclude the present trial, though with the consultation of the High Court as required under Article 235 of the Constitution. Further, in our humble opinion, such a course must be adopted in the manner prescribed under the Rules 2004 and in view thereof, the matter requires to be considered by the State Government with the consultation of the High Court. 31. Therefore, in view of the aforestated facts, we refer the matter to the High Court of Karnataka to decide on the administrative side as to whether, in order to conclude the trial expeditiously as guaranteed under Article 21 of the Constitution requires the extension of the services of the learned Special Judge. Considering the urgency of the matter, we request the High Court of Karnataka to take a decision in this regard as early as possible. 32. In view of the above, we are of the considered opinion that the order of removal of Shri G. Bhavani Singh-respondent no.4 is a product of mala fides and the impugned order is not sustainable in the eyes of law as such the same is hereby quashed. 33. With the aforesaid observations/directions, the writ petitions stand disposed of.
REPORTABLE published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40840 IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION WRIT PETITION (CRIMINAL) NO. 154 OF 2013 Selvi J. Jayalalithaa & Ors. …Petitioners Versus State of Karnataka & Ors. …Respondents WITH WRIT PETITION (CRIMINAL) NO. 166 OF 2013 … Continue reading
Whether the development agreement is work contract liable for sale taxes under Karnataka sale Tax and also the materials used in the building are liable for sale tax ; Like wise those works are liable under VAT MVAT under Maharashtra laws Sale Tax on development agreement and sale tax on the goods used while constructing building under Karnataka sale tax and also value added tax under Maharashtra = value of the goods which can constitute the measure of the levy of the tax has to be the value of the goods at the time of incorporation of goods in the works even though property in goods passes later. Taxing the sale of goods element in a works contract is permissible even after incorporation of goods provided tax is directed to the value of goods at the time of incorporation and does not purport to tax the transfer of immovable property. The mode of valuation of goods provided in Rule 58(1A) has to be read in the manner that meets this criteria and we read down Rule 58(1-A) accordingly. The Maharashtra Government has to bring clarity in Rule 58 (1-A) as indicated above. Subject to this, validity of Rule 58(1-A) of MVAT Rules is sustained. Once we have held that Raheja Development1 lays down the correct law, in our opinion, nothing turns on the circular dated 07.02.2007 and the notification dated 09.07.2010. The circular is a trade circular which is clarificatory in nature only. The notification enables the registered dealer to opt for a composition scheme. The High Court has dealt with the circular and notification. We do not find any error in the view of the High Court in this regard. Moreover, the Advocate General for Maharashtra clearly stated before us that implementation of Rule 58(1-A) shall not result in double taxation and in any case all claims of alleged double taxation will be determined in the process of assessment of each individual case. 126. After having given answer to the reference, we send the matters back to the Regular Bench for final disposal.
published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40833 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 8672 OF 2013 (Arising out of SLP(C) No.17741 of 2007) M/s. Larsen & Toubro Limited & Anr. …… Appellants Versus State of Karnataka & Anr. ……Respondents WITH CIVIL APPEAL NOS. 8673-8684 … Continue reading
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