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Acceptance of the Order of the High Court of Bombay in the case of Vodafone India Services Private Limited

Written By Views maker on Saturday, January 31, 2015 | 2:31 AM

The Union Cabinet, chaired by the Prime Minister Shri Narendra Modi, in a major decision, has decided to accept the order of the High Court of Bombay in the case of Vodafone India Services Private Limited (VISPL) dated 10.10.2014. This is a major correction of a tax matter which has adversely affected investor sentiment.
Based on the opinion of Chief Commissioner of Income-tax (International Taxation), Chairperson (CBDT) and the Attorney General of India, the Cabinet decided to:
i. accept the order of the High Court of Bombay in WP No. 871 of 2014, dated 10.10.2014; and not to file SLP against it before the Supreme Court of India;
ii. accept of orders of Courts/ IT AT/ DRP in cases of other taxpayers where similar transfer pricing adjustments have been made and the Courts/ IT AT/ DRP have decided/decide in favour of the taxpayer.
The Cabinet decision will bring greater clarity and predictability for taxpayers as well as tax authorities, thereby facilitating tax compliance and reducing litigation on similar issues. This will also set at rest the uncertainty prevailing in the minds of foreign investors and taxpayers in respect of possible transfer pricing adjustments in India on transactions related to issuance of shares, and thereby improve the investment climate in the country.
The Cabinet came to this view as this is a transaction on the capital account and there is no income to be chargeable to tax. So applying any pricing formula is irrelevant.
VISPL is a wholly owned subsidiary of a non-resident company, Vodafone Tele-Services (India) Holdings Limited, Mauritius. On 21.8.2008, VISPL issued shares (at a premium of Rs.8509/-) which resulted in VISPL receiving a total consideration of Rs.246.39 crore from Vodafone Mauritius, on issue of shares and this was shown as "Capital Receipts" in the books of accounts. VISPL reported this transaction as an "International Transaction" and stated that this transaction does not affect its income.
The Transfer Pricing Officer (TPO), vide order dated 28.01.2013, determined the Arm's Length Price of the shares issued by VISPL on the basis of Net Asset Value, at Rs.53,775/- per share and made an upward adjustment of Rs.1,308.91 crore. In addition, the difference Rs.1,308.91 crore between the transaction price and the Arm's Length Price was treated as 'deemed loan' given by VISPL to the holding company; and interest that would have been payable on the loan in an arm's length transaction was computed at Rs.88.35 crore. In total, transfer pricing adjustment of Rs.1,397.26 crore was proposed by the TPO for Assessment Year 2009-10. The matter was agitated by VISPL at the stage of Draft AO itself and therefore the tax payable could not be crystallized. However, the tax rate of 33 percent was applicable for Assessment Year 2009-10.
The DRP, on 11.2.2014, held that the premium determined by the TPO, to the extent not received, is an income arising from issue of shares, and that the AO and the TPO have jurisdiction.
VISPL filed a 2nd Writ Petition in the High Court of Bombay. The High Court, on 10.10.2014, has amongst other things observed:
a) "Section 92(2) of the Act deals with a situation where two or more AEs enter into an arrangement whereby they receive a benefit, service or facility then the allocation, apportionment or contribution towards the cost or expenditure is to be determined in respect of each AE having regard to ALP. It would have no application in the cases like the present one, where there is no occasion to, allocate, apportion or contribute any cost and/ or expenses between the Petitioner and the holding company."
b) The crucial words “shall be chargeable to income tax” which are found in Section 42(2) of the 1922 Act are absent in Chapter X of the Act..... Therefore it is clear that the deemed income which was charged to tax under Section 42(2) of 1922 Act was done away with under this Act."
c) The tax can be charged only on income and in the absence of any income arising, the issue of applying the measure of Arm's Length Pricing to transactional value/ consideration itself does not arise."
d) If its income which is chargeable to tax, under the normal provisions of the Act, then alone Chapter X of the Act could be invoked. Sections 4 and 5 of the Act brings /charges to tax total income of the previous year. This would take us to the meaning of the word income under the Act as defined in Section 2 (24) of the Act. The amount received on issue of shares is admittedly a capital account transaction not separately brought within the definition of Income, except in cases covered by Section 56(2)(viib) of the Act. Thus such capital account cannot be brought to tax as already discussed herein above while considering the challenge to the grounds as mentioned in impugned order."
e) The issue of shares at a premium is on Capital account and gives rise to no income. The submission on behalf of the revenue that the shortfall in the ALP as computed for the purposes of Chapter X of the Act is misplaced. The ALP is meant to determine the real value of the transaction entered into between AEs. It is a re-computation exercise to be carried out only when income arises in case of an International transaction between AEs. It does not warrant re-computation of a consideration received / given on capital account.
The Bombay High Court quashed the reference dated 11.7.2011 by the AO to the TPO, order dated 28.1.2013 of the TPO, draft AO dated 22.3.2013 of the AO and order dated 11.2.2014 of the DRP on the preliminary issue of jurisdiction to tax, setting them aside as being without jurisdiction, null and void.

2:31 AM | 0 comments

CPC order 18 rule 17

Written By Views maker on Sunday, January 25, 2015 | 7:37 AM

ORDER 18 RULE -17:

During further cross examination of defendant by Plaintiff a document was exhibited and marked – A petition to recall and reopen was filed by the defendant after the suit was post for final hearing to cross examine the plaintiff side witness (P.W.1) is not maintainable – Each party has to prove his case or leads his own defense.( 2015-1-L.W.18 – S.V.Matha Prasad V. Renuka Devi & another)

Cases referred - K.K.Velusamy Vs. Palanisamy – 2011 -3 –L.W. 738

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Preliminary enquiry cannot be considered as a report filed under Section 173 of the Criminal Procedure Code

Written By Views maker on Friday, May 16, 2014 | 11:42 PM

Section 156 of Cr.P.C – The order made under Section 156(3) of the Criminal Procedure is in the nature of a peremptory reminder or intimation to the Police to exercise their plenary powers of investigation under Section 156(1) of the Criminal Procedure Code. Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge-sheet under Section 173 of the Criminal Procedure Code

Section 173 of Cr.P.C The report submitted after conducting a preliminary enquiry - cannot be considered as a report filed under Section 173 of the Criminal Procedure Code. Therefore the entire action taken by the respondent is contrary to the provisions contained in Sections 156 and 157 of the Criminal Procedure Code.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 06.12.2007

CORAM

THE HONOURABLE MR. JUSTICE K.MOHAN RAM

Criminal Original Petition No.34202 of 2007

V.S.Veerasamy ... Petitioner

-Vs-

State by Inspector of Police

B-7 Ramanathapuram Police Station

Coimbatore City, Coimbatore - 45 ... Respondent

Prayer:- Criminal Original Petition filed under Section 482 of the Criminal Procedure Code to direct the respondent herein to register the case as per the orders of the learned Judicial Magistrate No.VI, Coimbatore, by its order dated 26.06.2007 in D.No.1042 of 2007 and investigate the matter and file final report within the time stipulated by this Court.

For Petitioner : Mr. V.Balu

For Respondent : Mr. A.Saravanan,

Government Advocate (Crl. Side)

- - -

O R D E R

The brief facts that are necessary for the disposal of the above criminal original petition are as follows:-

The petitioner herein filed a private complaint before the learned Judicial Magistrate No.VI, Coimbatore, against one Lakshmi and nine others alleging the fabrication of false records etc., which according to the petitioner amounted to offence under Sections 120(b), 465, 468, 471, 511, 423, 424, 441 and 447 of the Indian Penal Code. The learned Magistrate by his proceedings in D.No.1042 of 2007 dated 26.06.2007 forwarded the said private complaint under Section 156(3) of the Criminal Procedure Code to the respondent herein for registering a case and investigating and for filing a report within a period of one month. On receipt of the said proceedings the respondent herein instead of registering a case and taking up investigation had conducted a preliminary enquiry and has sent a report concluding that the complaint discloses only a civil dispute and further action can be taken only after the disposal of the civil suits pending between the parties. Being aggrieved by that the petitioner has filed the above criminal original petition seeking a direction to the respondent to register the case as per the orders of the learned Magistrate.

2. Heard Mr. V.Balu learned counsel for the petitioner and Mr.A.Saravanan learned Government Advocate (Crl. Side) for the respondent.

3. Learned counsel for the petitioner submitted that when the learned Magistrate by his proceedings has directed the respondent to register the case and investigate, it is the mandatory duty on the part of the respondent to first register the case and then investigate the same and thereafter file a final report either way. But instead of registering a case the respondent had conducted only a preliminary enquiry and has sent the report, which according to the learned counsel, is against the provisions contained in Sections 156(3) and 157 of the Criminal Procedure Code.

4. Countering the said submissions the learned Government Advocate (Crl. Side) for the respondent fairly submitted that the respondent, on the directions issued by the learned Magistrate under Section 156(3) of the Criminal Procedure Code, ought to have registered the case first and investigate the same and the procedure followed by the Sub Inspector of Police in this case is not in accordance with the provisions of the Criminal Procedure Code.

5. I have carefully considered the submissions made by the learned counsel on either side. It is seen that on the private complaint filed by the petitioner herein the learned Magistrate, as aforesaid, had forwarded the complaint to the respondent herein with the direction to register a case and investigate the same and file a final report within one month, but admittedly the respondent had not registered the case. Sections 156 (1) and 156 (3) of the Criminal Procedure Code read as follows:-

"156. Police Officer's power to investigate cognizable case. (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

(2) ....

(3) Any Magistrate empowered under Section 190 may order such an investigation as above-mentioned."

6. A reading of the above said provisions makes it abundantly clear that the learned Magistrate is empowered to order investigation on a private complaint filed before him. The Magistrate can under Section 190 of the Criminal Procedure Code before taking cognizance seek for investigation by the Police under Section 156(3) of the Criminal Procedure Code. The order made under Section 156(3) of the Criminal Procedure is in the nature of a peremptory reminder or intimation to the Police to exercise their plenary powers of investigation under Section 156(1) of the Criminal Procedure Code. Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge-sheet under Section 173 of the Criminal Procedure Code. When the learned Magistrate has applied his mind and ordered registration of a case and investigation thereon with a further direction to file final report within one month, it is mandatory on the part of the respondent to have first register a case. Admittedly, in this case, the respondent has not complied with the directions of the learned Magistrate and registered the case. Investigation in a criminal case commences only after registration of a first information report, instead of registering the case the respondent has conducted a preliminary enquiry which is not in consonance with the order passed by the learned Magistrate. The report submitted by the respondent after conducting a preliminary enquiry is also cannot be considered as a report filed under Section 173 of the Criminal Procedure Code. Therefore the entire action taken by the respondent is contrary to the provisions contained in Sections 156 and 157 of the Criminal Procedure Code. Therefore, the report submitted by the respondent herein should be considered to be non-est in law.

7. For the above said reasons the criminal original petition is disposed with the following directions:-

The respondent shall first register the case and then commence investigation, examine the witnesses and thereafter, whether a case is made out or not, a final report has to be filed accordingly within a period of one (1) month from the date of receipt of a copy of this order.

To

1. The Inspector of Police, B-7 Ramanathapuram Police Station

Coimbatore City, Coimbatore - 45

2. The Judicial Magistrate No.IV, Coimbatore

3. The Public Prosecutor, High Court

Madras.

11:42 PM | 0 comments

Public works department authorised to issue NOC for Ground water commercial use

Written By Views maker on Thursday, May 15, 2014 | 8:21 AM

The  Madras High court has issued directions based on government  G.O.Ms.No.52, Public Works (R2) Department, dated 02.03.2012 directing the general public approach the authorities of the Public Works Department for necessary approval  for commercial usage of ground water based on the category to which they fall.

The power of Revenue Department has been taken away and they no longer can take cognizance of illegal ground water trade.  Even after this judgement may revenue authorities with out any legal mandate have taken action with the help of police.

<<click to download full judgement>>

<< click to download  G.O.Ms.No.52, Public Works (R2) Department, dated 02.03.2012 >>

 

Judgement :

In the High Court of Judicature at Madras

Dated: 18.09.2013

Coram

The Honourable Mrs.JUSTICE CHITRA VENKATARAMAN

and

The Honourable Mr.JUSTICE T.S.SIVAGNANAM

Writ Appeal Nos.923 to 926 of 2009, W.P.Nos.23116 of 2006, 23896 to 23900 of 2006, 4711 of 2004 and 12375 of 2008 & Connected Miscellaneous Petitions

Writ Appeal Nos.923 to 926 of 2009:

New Tirupur Area Development Corporation Ltd.,

represented by its Authorised Signatory

having its office at 'Anurag',

No.15, Murray's Gate Road,

Alwarpet, Chennai 600 018. .... Appellant in the above W.A.s

Vs.

1. Tmt. K.Poomani .... Respondent in W.A.Nos.923 & 924/2009

1. Sri.K.Paramasivam .... Respondent in W.A.Nos.925 & 926/2009

2. The Revenue Divisional Officer,

Tiruppur, Coimbatore District.

3. The Inspector of Police,

Tiruppur Rural Police Station,

Coimbatore District.

4. The Secretary,

Government of Tamil Nadu,

Public Works Department (Groundwater),

Fort St. George, Chennai 600 009.

.... Respondents in W.A.Nos.923 to 926 of 2009

5. KRNR Aqua Industries,

rep. by its Proprietor,

Opp. Jaya Theatre,

Mallaooppampatti Village,

Ayyamperumampatti Post,

Salem 636 005.

(R4 impleaded vide order dated 28.7.2009,

R5 impleaded vide order dated 1.7.2013 &

R6 impleaded vide order dated 18.9.2013)

.... Respondents in W.A.No.923 of 2009

6. M/s.Kamala Corporation,

rep. by its Proprietor,

S.Pazhamalai, No.353, Main Road,

Pennadam 606 105

Cuddalore District.

(R4 impleaded vide order dated 28.7.2009,

R5 impleaded vide order dated 1.7.2013 &

R6 impleaded vide order dated 18.9.2013)

.... Respondents in W.A.Nos.923 & 926 of 2009

APPEALs under Clause XV of the Letters Patent against the order dated 12.1.2009 made in W.P.M.P.No.2 of 2008 in W.P.No.25352 of 2008; W.P.No.25352 of 2008; W.P.M.P.No.2 of 2008 in W.P.No.25353 of 2008; W.P.No.25353 of 2008 on the file of this Court.

Writ Petition Nos.23116, 23896 to 23900 of 2006:

Tmt.Rukmani .... Petitioner in W.P.No.23116 of 2006

N.Eswaramoorthy .... Petitioner in W.P.No.23896 of 2006

N.Manonmani .... Petitioner in W.P.No.23897 of 2006

K.Narayanasamy .... Petitioner in W.P.No.23898 of 2006

O.Subramanian .... Petitioner in W.P.No.23899 of 2006

Tiruppur Water Lorry Owner Association,

Regd. No.3/2006,

73/3, Thanner Pandal Colony,

Avinashi Road, Tiruppur 641 652

rep. by its Chairman

R.M.Vadivel

.... Petitioner in W.P.No.23900 of 2006

Vs.

1. The Commissioner,

Tiruppur Municipality,

Tiruppur.

2. The Collector,

Coimbatore District,

Coimbatore.

.... Respondents in the above W.Ps

PETITIONs under Article 226 of The Constitution of India praying for the issuance of Writ of Mandamus forbearing the respondents from obstructing the supply of water taking from the borewell of the petitioners situated in S.No.96/2B2, Ganapathypalayam Village, Palladam Taluk; S.No.518 in 19A Rakkiapalayam Village, Majara Vijayapuram, Tiruppur Taluk; S.No.75/2 in Naranapuram Village Palladam Taluk; S.No.455/3D in 19A, Rakkiapalayam, Nallur Village, Tiruppur Taluk; S.No.369/1B, Ganapathypalayam Village, Palladam Taluk, through tanker lorries for domestic and industrial purposes in and around Tiruppur and Palladam by the petitioners.

Writ Petition No.4711 of 2004:

N.Ramamurthy

.... Petitioner

Vs.

1. The District Collector,

Coimbatore District,

Coimbatore.

2. The Tahsildar,

Palladam Taluk, Palladam,

Coimbatore District.

3. The Asst. Engineer,

Tamil Nadu Electricity Board,

Kulathupalayam, Palladam Taluk,

Coimbatore District.

.... Respondents

PETITION under Article 226 of The Constitution of India praying for the issuance of Writ of Mandamus forbearing the respondents from preventing the petitioner from taking water from his borewell situated in S.F.no.54/3 of Karaipudur Village, Palladam Taluk, Coimbatore District and transporting the water through the lorry to his Banian factory viz., 'Saranya Colours' near the Tiruppur situated in Kunnagalapalaym, Chinnakarai, Arulpalayam Post, Palladam Taluk, Coimbatore District.

Writ Petition No.12375 of 2008:

Appusamy Gounder .... Petitioner

Vs.

1. The Revenue Divisional Officer,

Tiruppur, Coimbatore District,

2. The Inspector of Police,

Palladam Police Station,

Palladam Taluk,

Coimbatore District.

3. New Tirupur Area Development Corporation Ltd.,

represented by its Authorised Signatory

having its office at 'Anurag',

No.15, Murray's Gate Road,

Alwarpet, Chennai 600 018. .... Respondents

PETITION under Article 226 of The Constitution of India praying for the issuance of Writ of Mandamus forbearing the respondents from obstructing the supply of water taking from the open well of the petitioner situated in S.No.386 in 30, Karaipudur Village, Palladam Taluk, Coimbatore District for domestic and industrial purposes in and around Tiruppur and Palladam by the petitioner.

For Appellant in W.A.Nos.923 to 926 of 2009: Mr.S.Raghunathan

For R1 in W.A.Nos.923 to 926 of 2009 and for Petitioner in W.P.Nos.23116 of 2006, 23896 to 23900 of 2006, 4711 of 2004 and 12375 of 2008 : Mr.S.Doraisamy

For R2 to R4 in W.A.Nos.923 to 926 of 2009 & For Respondents in W.P.Nos.23116 of 2006 23896 to 23900 of 2006, 4711 of 2004 and 12375 of 2008 :Mr.A.L.Somayaji, Advocate General Assisted by Mr.R.Ravichandran, AGP Mr.P.Karthikeyan, G.A.

For R5 in W.A.No.923 of 2009: Mr.A.S.Rajkumar

For R6 in W.A.Nos.923 & 926 of 2009: Mrs.Hema Sampath, S.C. For M/s.K.V.Muthuvisakan

-----------------

C O M M O N J U D G M E N T

(Judgment of the Court was delivered by CHITRA VENKATARAMAN,J.)

The present Writ Appeals are filed by New Tirupur Area Development Corporation Limited, who sought to implead itself in Writ Petitions filed by one Poomani in W.P.No.23532 of 2008 and one Paramasivam in W.P.No.25353 of 2008. The said Writ Petitions were filed before this Court for issuance of writ of mandamus forbearing the respondents therein from obstructing the supply of water taking from the open well of the petitioners through tanker lorries for domestic and drinking purposes in and around Tiruppur and Palladam by the petitioners.

2. Learned single Judge rejected the impleading petitions filed by the Writ Appellant taking the view that for deciding the issue, the presence of the impleading party was not at all necessary. Thus, the petitions to implead the Writ Appellant were dismissed. Aggrieved by this, Writ Appeal Nos.925 and 926 of 2009 are filed before this Court. Apart from this, the Writ Appellant also filed Writ Appeals as against the main order passed in W.P.Nos.25352 and 25353 of 2008, wherein learned single Judge, by order dated 12.01.2009 held that in the absence of any order issued by the Government under Section 9 of the Tamil Nadu Groundwater (Development and Management) Act 2003, neither the Revenue Authorities nor the Police Authorities got any power to obstruct the petitioner from drawing ground water from open wells and bore wells and transporting the same. Learned single Judge also pointed out that the order would not stand in the way of the Government issuing appropriate order under Section 9 of the said Act.

3. It is seen from the averment made in the affidavit filed by Paramasivam - Writ Petitioner in W.P.No.25353 of 2005 that on account of the development of knit wear industries resulting in serious set back in the agricultural activity in and around Tiruppur and leading to the shortage of manpower, the petitioner and other similarly placed persons had started selling water to the dyeing factories. However, with the formation of New Tiruppur Area Development Corporation Limited, wherein a Scheme was introduced for drawing water from Bhavani river to Tiruppur for the industrial purpose only, the petitioner felt that his business got offended. Apart from that, the introduction of the Tamil Nadu Groundwater (Development and Management) Act, 2003 to regulate the development and management of groundwater, which was yet to be notified, was further seen as an obstruction to the business. He contended that for sinking a well or bore well, no permission was necessary from the authorities. However, on instruction from the Revenue Divisional Officer, the Inspector of Police started obstructing the lorries taking water from the well and supplying the same to the dyeing factories. Hence, the petitioner approached this Court for a writ of mandamus to forbear the respondents from obstructing the supply of water taken from the open well of the petitioner.

4. In the background of the said contention and with the New Tiruppur Area Development Corporation Limited not being a main party in the Writ Petition, the present appellant filed a petition in M.P.No.2 of 2008 contending that the impleading party was created as a special purpose vehicle under the support of Government of Tamil Nadu to implement the project on drawing water from Bhavani River to Tiruppur, which would not only be beneficial for the public at large and to the industries located in and around Tiruppur but also for the supply of drinking water to the Tiruppur township as well as to the villages in and around Tiruppur. Since the project was implemented at enormous cost, the petitioner thought it fit to move the Court for impleading itself in the Writ Petitions. The appellant contended that on account of the use of groundwater for industrial purpose, the purpose for which the impleading party was constituted would be totally defeated; hence, the appellant had to be impleaded as party and heard in the Writ Petition.

5. As already pointed out, learned single Judge rejected the impleading petitions. The appellant filed Writ Appeals against this order and as well as against the order in the Writ Petitions stating that the Authorities had no jurisdiction to obstruct anybody from drawing water. It is seen further that this Court passed an interim order on 31.01.2011 in the Writ Appeals, wherein the Division Bench of this Court directed the State Government not to allow any person to draw and sell the groundwater until the Tamil Nadu Groundwater (Development and Management) Act, 2013 was notified. This led to the impleading of the sixth respondent M/s.Kamala Corporation in the Writ Appeals. Since one of the contentions raised by the Writ Petitioner and other impleading party related to the non-notification of the Tamil Nadu Groundwater (Development and Management) Act, 2003 and hence on the jurisdiction of the Authorities to obstruct anyone from drawing water from the wells to trade therein, we requested the learned Advocate General to appear in this matter to get proper instructions. Accordingly, learned Advocate General has placed before this Court the copy of the Tamil Nadu Ordinance No.4 of 2013 dated 14th September, 2013, where under, the Tamil Nadu Groundwater (Development and Management) Act, 2003 is now sought to be repealed. The ordinance is called as the Tamil Nadu Groundwater (Development and Management) Repeal Ordinance, 2013. The Explanatory statement reads as under:

"The Tamil Nadu Groundwater (Development and Management) Act, 2003 was enacted taking into consideration the circumstances prevailed in the year 2003. However, in the past 10 years, the following factors have drastically changed the scenario:-

(i) Certain definitions like marginal and small farmers, etc., have not been clearly defined to carry out the purport of the Act preventing groundwater drawal for Agricultural purposes and thereby causing hardship to farmers.

(ii) The people at large are to be ensured minimum potable water from groundwater sources when other sources are not sufficient especially in a drought affected year.

(iii) The provisions in the Act require that all individuals should be registered with the Groundwater Authority and licence should be obtained by all persons having over 1 Horse Power motor. If the Act in the present form was implemented and groundwater was not allowed to be tapped, it would have led to a public outcry.

(iv) Since 2003, the Municipal Corporations like Chennai, Coimbatore, Madurai, etc., have expanded, Piped water supply is not adequately available in the extended portions. Therefore, for supply to households by the Corporations and Private lorries, tapping of groundwater is being resorted to. As per the Act, a permit has to be obtained for transport of groundwater by means of lorry, trailer etc., from the notified areas for any purpose. This would result in unnecessary difficulties to the general public as each and every lorry or trailer in the State has to obtain a permit from the State Groundwater Authority even for supply of drinking water causing difficulties to the general public.

(v) The manner in which the drawal of groundwater has to be regulated for construction of multistoried buildings and for commercial exploitation of water, where water is used as raw material has not been addressed in the Act."

6. Paragraph No.2 of the Explanatory Statement further states that the Tamil Nadu Groundwater (Development and Management) Act, 2003 has to be comprehensively changed taking into account the present demand, need and supply. Consequently, while repealing the Tamil Nadu Groundwater (Development and Management) Act, 2003, the note further expressed its decision to regulate the drawing of water on commercial basis.

7. Learned senior counsel appearing for the impleading party viz., M/s.Kamala Corporation in Writ Appeal Nos.923 and 926 of 2009 placed before us G.O.(Ms) No.52, Public Works (R2) Department dated 02.03.2012. The letter written by the Chief Engineer, State Ground and Surface Water Resources Data Centre, Tharamani to the Secretary to Government dated 02.07.2013 points out that it is an executive order passed in the interests of the State, for equitable availability of groundwater to every one and all the water connecting Departments were consulted on this subject.

8. On a reading of G.O.Ms.No.52, Public Works (R2) Department, dated 02.03.2012, we find that the Chief Engineer, State Ground and Surface Water Resources Data Centre, Tharamani had submitted certain proposals to the Government for notifying blocks based on the categorization made as on March, 2009 for all the Districts in Tamil Nadu on the exploitation of groundwater. Based on the recommendation, the Government issued G.O.Ms.No.52, Public Works (R2) Department dated 02.03.2012 approving the categorization of over exploited blocks; critical blocks; semi critical blocks; safe blocks and saline/poor quality blocks. Thus, all the over exploited blocks and critical blocks are notified as 'A' category stage of groundwater extraction is 90% and above and all the semi critical and safe blocks are notified as 'B' category stage of groundwater extraction is below 89%. The Government further notified in paragraph Nos.9 to 12 as follows:

"9. The Government further direct that no schemes should be formulated in over exploited and critical blocks Notified as A category blocks. In Semi Critical and Safe blocks Notified as B category blocks, all the schemes should be formulated through State Ground and Surface Water Resources Data Centre of Water Resources Department and the Chief Engineer / State Ground and Surface Water Resources Data Centre will issue No Objection Certificate for Ground Water Clearance.

10. The Government further direct to exclude the Ground Water drawal for domestic purpose by individual household; domestic infrastructure project (Housing); Governments Drinking Water Supply Schemes and; non water based industries, (i.e. the industries which do not require and use water, either as raw material or for other processing). The Chief Engineer, State Ground and Surface Water Resources Data Centre will permit for domestic use of water by this non water based industries by issuing No Objection Certificate based on the hydro geological conditions. The list of non water based industries will be issued by the Industries Department of Government of Tamil Nadu separately.

11. The Government further direct that appropriate rain water harvesting and Artificial Recharge Schemes shall be carried out in the catefories viz. Over exploited, Critical, Semi Critical and Safe blocks of Tamil Nadu. While carrying out the above schemes, priority shall be given to marginal quality and bad quality areas so as to avoid further deterioration.

12. The Government further direct that all the schemes and proposals based on Ground Water will have to be adhered the Government orders and conditions as detailed in the Annexure II of this order."

9. Thus, in the background of the Government Order, in exercise of executive power and which has nothing to do with the passing of the repealing of the Act, we feel, the proper course herein would be to set aside the order of the learned single Judge in the Writ Petitions as well as the order rejecting the impleading petitions and direct the parties to approach the authorities of the Public Works Department for necessary approval based on the category to which they fall. Accordingly, the order dated 12.01.2009 made in W.P.Nos.25352 and 25353 of 2008 and M.P.Nos.2 and 2 of 2008 stands set aside. We make it clear that even with the repealing of the Act, G.O.Ms.No.52 Public Works (R2) Department dated 02.03.2012 will govern the interests of the parties and the State in the matter of regulating the business of the Writ Appellant herein.

10. In view of the order passed setting aside the orders of the learned single Judge passed in the Miscellaneous Petitions as well as in the Writ Petitions, all the Writ Appeals and the Writ Petitions are disposed of in terms of what we have stated in the preceding paragraphs. No costs. Consequently, connected Miscellaneous Petitions are closed.

Index :Yes (C.V.,J) (T.S.S.,J)

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8:21 AM | 0 comments

Supreme court Directions in NI Act / Cheque bounce case

Written By Views maker on Monday, May 12, 2014 | 7:13 AM

Metropolitan Magistrate/Judicial Magistrate  (MM/JM), on the day when the complaint under Section 138 of the Act is presented, shall scrutinize the complaint and, if the complaint is accompanied by the affidavit, and the affidavit and the documents, if any, are found to be in order, take cognizance and direct issuance of summons.

(2) MM/JM should adopt a pragmatic and realistic approach while issuing summons. Summons must be properly addressed and sent by post as well as by e-mail address got from the complainant. Court, in appropriate cases, may take the assistance of the police or the nearby Court to serve notice to the accused. For notice of appearance, a short date be fixed. If the summons is received back un-served, immediate follow up action be taken.

(3) Court may indicate in the summon that if the accused makes an application for compounding of offences at the first hearing of the case and, if such an application is made, Court may pass appropriate orders at the earliest.

(4) Court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during trial and ask him to take notice under Section 251Cr.P.C. to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under Section 145(2) for re-calling a witness for cross-examination.

(5) The Court concerned must ensure that examination-in-chief, cross-examination and re- examination of the complainant must be conducted within three months of assigning the case. The Court has option of accepting affidavits of the witnesses, instead of examining them in Court. Witnesses to the complaint and accused must be available for cross-examination as and when there is direction to this effect by the Court.

Case details : WRIT PETITION (CIVIL) NO.18 OF 2013 Indian Bank Association and others ... Versus Union of India and others

7:13 AM | 0 comments

Seeking Police aid under Section 151 of The C.P.C

Written By Views maker on Saturday, April 26, 2014 | 5:34 AM

Orders interlocutory in nature are not like final decree passed in suit – enforcement and implementation of such orders under section 151 is permissible without resorting to execution proceedings 1

By ordering police help the Court below had merely taken the follow up steps to implement its earlier order of injunction. The objection that a direction of that nature cannot be issued to the police authorities, who are not parties to the proceedings, raised by the petitioners has no substance. When the Court finds that a litigant, who had obtained an order from it, is not in a position to have its full benefit owing to either the obstruction or non-cooperation of the other party to the proceedings, it is always open to the Court to resort to the law enforcement machinery to see that its order is obeyed and I do not see anything illegal or irregular about it2 .The inherent powers of this court under Section 151 C.P.C. are wide and are not subject to any limitation. Where in violation of a stay order or injunction against a party, something has been done in disobedience, it will be the duty of the court as a policy to set the wrong right and not allow the perpetuation of the wrong doing. 7 In our view, the inherent power will not only be available in such a case, but it is bound to be exercised in that manner in the interests of justice. Even apart from Section 151, we should, observe that, as a matter of judicial policy, the court should guard against itself being satisfied in circumstances like this by holding that it is powerless to undo a wrong done in disobedience of the court's orders.

Nothing in this code (C.P.C) shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of court. The section itself says that nothing in the code shall be deemed to limit or otherwise affect the inherent power of the court to make orders necessary for the ends of justice. In the face of such a clear statement, it is not possible to hold that the provisions of the code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the court. No technicality can prevent the court from doing justice in exercise of its inherent power. By ordering the police help to respondent, the court below had merely taken the follow-up steps to implement its earlier order of injunction. When the court finds that a litigant, who had secured an order from court is not in a position to have full benefit owing either to obstruction or non-co-operation of the other side, it is always open to resort to the law enforcement machinery to see that its order is obeyed and there is nothing illegal or irregular in that 3. Court in exercise of the powers under Section 151, is competent to pass any orders so that its orders are duly complied with and obeyed. In this case, the petitioner apprehended that there will be interference by the respondents with reference to the petitioner's enjoyment of the properties notwithstanding the order of injunction made by this Court. According to the petitioner, such interference will prevent the petitioner from enjoying the properties. In that event, the order passed by this Court will be of no assistance to the petitioner. In other words, what the petitioner apprehends is, a breach of peace if he were to enjoy the properties in respect of which an injunction has been granted. In the above circumstances, it is no answer to say that the petitioner shall wait till the order is disobeyed and then resort to the remedy prescribed under Order 39, Rule 2-A, Civil Procedure Code. What he really wants by means of this application is that there should not be any breach of peace because, in his view, the respondents would high-handedly interfere with his enjoyment of the properties notwithstanding the order of injunction. 4

The necessity of police aid is to be decided by the party and is not to be decided by the Court. In such circumstances, the District Munsif, ought not to have passed such an order. Further, police aid cannot be granted simultaneously with an order of injunction. Only if the Court is satisfied that the order of injunction passed by it is not obeyed by the other party, and the party who has secured the order is not in a position to enjoy the benefits of the order because of the conduct of the other party and police interference is absolutely necessary, the Court can grant an order of police aid. In this case, the District Munsif has thrown to winds all principles of law and justice and passed an order of police aid as if it should automatically follow and attach itself to an order of injunction whenever the civil Court passed an order of injunction. The order granting police aid is wholly unsustainable and requires to be set aside. 5

The lower Courts are frequently confronted with the question of issuing police protection. Since the issuance of police aid is often raised in one way or other, by the lower Courts it is appropriate to issue the following guide lines:

· In appropriate cases, Civil Court has the power to issue suitable directions to police officials as servants of law to extend their aid and assistance in the execution of decrees and orders of Civil Courts or in implementing an order of injunction passed by it. (1992 TLNJ 120).

· Ordering police protection has got serious consequences, impinging on the rights of the parties.

· Police aid is not to be granted simultaneously with an order of injunction.

· In cases where the lower Courts order police protection/police aid in the execution of decrees and orders of the civil Courts or in implementing an order of injunction passed by it, the Court is to record reasons as to how and why the case is the appropriate case to order police aid and for what purpose the police aid is ordered.

· Police protection/police aid may not be ordered by a non-speaking order. Order of Court for police aid might give room for the parties to take law into their own hands. The party having the order of Court for police aid, might try to disturb the status quo - either by trying to take possession or trying to dispossess the opponent.

· Order of the Court for police protection is to specifically indicate in precise terms the purpose for which police protection is ordered. 6

1. (J.Rajagopalan -vs- Uma Maheswari 2014 (1) CTC 365 )

2. Kudiyan and 5 others Vs. B.Ranganathan ,1991 (1) LW 604

3. K.G.Gopal and ors. V. Lillybai (1991) L.W. 559

4. (1993) 1 MLJ 274

5. 1996 (1)LW 52

6. AIR 2006 Mad 186, 2006 (2) CTC 21

7. Century flour mills ltd vs S.Suppiah and another 1975 (2) MLJ 54

5:34 AM | 0 comments

AMIR Hospital has been ordered to pay compensation for medical negligence

Written By Views maker on Sunday, December 22, 2013 | 1:07 AM

Mrs. Anuradha wife of Dr.Kunal was admitted in A.M.I.R for treatment in the year 1998, She failed to recover and finally died. Dr.Kunal claimed that the death of his wife was due medical negligence of the AMIR Hospital and filed a suit against the Hospital and finally after 15 years of legal battle Supreme Court has awarded a Compensation for the medical Negligence.

<< Click to read Full Judgement >>

கோல்கத்தா மருத்துவமனைக்கு எதிரான வழக்கில் இழப்பீடு வழக்க உச்சநீதிமன்றம் உத்திரவு

டாக்டர் குணால் சஹாவின் மனைவி அனுராதா சஹா கடந்த 1998 ஏ.எம்.ஆர்.ஐ மருத்திவமனையில் உடல்நல குறைவு காரணமாக அனுமதிக்கபட்டார். சிகிச்சை பலன்யின்றி உயிர் இழந்நார். தன் மனைவின் இறப்பு மருத்துவமனையின் கவனகுறைவால் ஏற்பட்தாக டாக்டர் குணால் வழக்கு தோடர்ந்தார். 15 ஆண்டுகள் கழித்து கடந்த அக்டோபர் மாதம் உச்சநீதிமன்றம் இழப்பீடு வழக்க உத்திரவிட்டது.

1:07 AM | 0 comments

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