Legal Shorts

20
Jun

Legal Shorts: THE ENTIRE DISPUTE REGARDING COLLECTION OF TAXES BY THE CANTONMENT BOARD AND THE AMBIGUITY REGARDING IT

In the case of Indian Oil limited vs. State of Uttar Pradesh (Case:- WRIT – C No. – 25730 of 2017 )

Facts:- Act here refers to the Cantonment Act 2006

 (1) Whether the entire State can be treated as ‘local area’ for the purposes of entry tax?

(2) Whether entry tax can be levied on the goods which are directly imported from other countries and brought in a particular State?

Held:- ) The contention that the entire State cannot be treated as one local area, is devoid of any merit, as the definition clause of local area under Section 2 (d) did not treat the entire State as one local area. The other provisions of the Act also do not amount to treating the entire State as one local area vis-a-vis the taxable event and merely because the tax is collected as general revenue and credited to a central fund would not result in altering the taxable event nor would be fatal to the vires of the Act. Thus, the first question framed for consideration by the Supreme Court, does not directly arise in the context of the provisions of the impugned Act.

(e) The contention that the entry tax is a local levy, the power of a local body to impose such tax and the State Government was not competent to realise entry tax as general revenue or to direct the same being credited to a central fund or its appropriation for facilitating trade, commerce and industry in the entire State, rather than passing it to the local body from where the tax had been collected, is based on a wrong premise that the entry tax is a local levy and not the power of the State Government to impose tax.

 

MANISHEK KUMAR

 

 

12
Jun

RATE OF INTEREST IS NOT SUBJECT MATTER TO SCRUTINY

In the case of Jayant Verma Vs. Union Of India (Civil Petition no. 134 of 2013)

FACTS:-  A writ petition, by way of a Public Interest Litigation, filed under Article 32 of the constitution assails the constitutionality of section 21A of the Banking Regulation Act.

According to the said section of Act “Rates of Interest charged by banking companies not to be subject to scrutiny by courts notwithstanding anything contained in the Usurious Loans Act, 1918 or any other law relating to indebtedness in force in any state.

Held:-  it was held that the Section 21 A of the banking regulation act to be valid as it is part of an enactment which in pith and substance, I relatable to entry 45 of list 1 of the seventh schedule to the constitution.

MAnishek Kumar

12
Jun

DOCTRINE OF PARAMOUNTCY AND THE CAUVERI RIVER DISPUTE

In the case of State of Karnataka By its Chief Minister VS. State of Tamil Nadu By its Chief ( Civil Appeal 2453 of 2007)

Facts:- The Doctrine of Paramountcy and its extinction was challenged by the state in the Court and also the infraction of Article 363 and its maintainability was challenged on the basis of agreement.

Held:- After coming into force of the 1947 Act, the doctrine of paramountcy has no room for application as the Government of India became the full sovereign authority. The two agreements of 1892 and 1924 had neither any political arrangement nor touched any facet of sovereignty of India. The issues in this case have no connection, whatsoever, with the concepts of sovereignty and integrity of India and, therefore, the bar under Article 363 of the Constitution of India is not attracted.

MANISHEK KUMAR

9
Jun

THE SPHERE OF ARTICLE 105 OF INDIAN CONSTITUTION

In the case of Kalpana Mehta and others vs. Union of India { WRIT PETITION (CIVIL) NO. 921 OF 2013}

Facts:-  Constitutional validity of Art. 105 of constitution of India and the provision regarding it were taken into consideration. The provision Sec. 57 of Evidence Act 1872 was also point of discussion in the court.

Held:-  No MP shall be held liable for anything said by him in parliament or in any committee thereof and the said provision came under the ambit of Art 105 of Indian Constitution. The publication of Parliamentary proceeding not only published but also being encouraged by the Parliament. It was held that Section 57(4) of the Indian Evidence Act, 1872 makes it clear that the course of proceedings of Parliament   and   the   Legislature,   established under any law are facts of which judicial notice shall be taken by the Court. Parliament   has   already   adopted   a   report   of “privilege committee”, that for those documents which are public documents within the meaning of Indian Evidence Act, there is no requirement of any   permission   of   Speaker   of   Lok   Sabha   for producing such documents as evidence in Court.

Written By-Manishek Kumar

9
Jun

EUTHANASIA AND THE HELD JUDGEMENT

In the case Common Cause Society vs Union of India (Civil Writ Petition No. 215 of 2005 of SC)

Facts:- question before the Bench is regarding the constitutionality of Sec 309 of IPC, the unconstitutionality of Sec 306 of IPC, the legislation regarding the passive euthanasia, the difference between the active and passive euthanasia

Held:- a) The Right to die with dignity as fundamental right has already been declared by the constitution bench judgement in Gian KAur case which we reiterate.

  1. b) We declare that an adult human being having mental capacity to take an informed decision has right to refuse medical treatment including withdrawal from saving devices.
  2. C) A person of competent mental faculty is entitled to execute an advance medical directive in accordance with safeguards as referred to above.
  3. d) We are thus of the opinion that the right not to take life saving treatment by a person, who is competent to take an informed decision is not covered by the concept of euthanasia as it is commonly understood but a decision to withdraw life saving treatment by a patient who is competent to take decision as well as with regard to patient who is not competent to take decision can be termed as passive euthanasia, which is legally permissible in this country.

Written By-Manishek Kumar

7
Jun

Legal Shorts for Judicial Exam: Supreme Court Guidelines to Prevent misuse of SC/ST Act

In the case of Dr. Subhash Kashinath Mahajan vs. the State of Maharashtra { Cri. App. 416 of 2018} {SLP Cri 5661 of 2017}.

Facts:- The Appellant herein is the original accused in the case registered at city police station under Sec. 3(1)(ix), 3(2)(vi) and 3(2)(vii) of the SC/ST Act 1989 also Sec. 182, 192,203,219 read with 34 of IPC 1860.

Question of Law:- whether there can be procedural safeguards so that provisions of SC/ST Act 1989 are not Abused or misused?

Held:- We direct that in absence of any other independent offence calling for arrest, in respect of offence calling for arrest, in respect of offences under the atrocities act, no arrest may be effected, if an accused person is a public servant, without written permission of the appointing authority and if such a person is not a public servant, without written permission of the SSP of District. Such permission must be granted for recorded reasons which must be served on the person to be arrested and to the concerned court. As and when a person arrested is produced before the Magistrate, the Magistrate must apply his mind to the reasons recorded and further detention should be allowed only if the reasons recorded are found to be valid. Tp avoid false implication, before FIR is registered, preliminary enquiry may be made whether the case falls in the parameters of the act or not

 

Manishek Kumar

3
Jun

Shorts for PCS (J):ABSENCE OF PERMIT IN MOTOR TRANSPORT IS STATUTORY BREACH OF POLICY ABSOLVING INSURER

In the case of  Amrit Pal Singh & Anr. Vs TATA AIG general Insurance co. Ltd. &Ors. {Civil Appeal No. 2253 of 2018}

Facts:-

  • Jagir Singh got died due to accident held with him on the way to Pathankot with a Truck.
  • Legal Representatives of the deceased filed a claim petition Under 166 of MVA in Motor Accident Claims Tribunal for compensation of Rupees 36 Lakhs.
  • Insurer refused to indemnify on the ground that the vehicle was driven in violation of terms of Insurance Policy and there was no proper license with the driver of Truck and also on that day vehicle did not have the permit on that day.
  • Tribunal passed order to issue a sum of rupees 15 lakhs to the indemnity holder on which it was challenged in HC of Punjab and Haryana. In which HC upheld the decision of Tribunal for the same on which S.L.P was filed in SC.

Held:-

It was held that in case if any commercial vehicle (transport) is used in Public without a permit in that case it will be seen as disregard to law and also as a fundamental statutory infraction at that time the exception in sec 66 of the MVA act cannot be taken aid of in the course of an argument to seek absolution from liability. Therefore the bench is off the judgment that the insurer will be absolved of liability to pay in similar circumstances.

 

Manishek Kumar

City Academy Law College

2
Jun

Shorts for Judicial Exam: Definition of “child” in Sec. 2(1), POCSO Act, 2012

Case:  Eera through Dr. Manjula Krippendorf v. State(NCT of Delhi) and Anr.,        (2018) 1 SCC (Cri.) 588.

 

Author of the Judgment: Justice Deepak Mishra

Held: Definition of “child” in Sec. 2(1), POCSO Act, 2012 which mean any person below 18 years of age, cannot embrace in its connotive expanse “mental age” of person since stretching word “age” and “years” would be encroaching upon legislative function.

Therefore, it is perused that a case cannot be tried under POSCO Act, 2012 in which a victim being major has “mental” capacity of a minor i.e. mentally retarded victim.

 

By Adarsh Pharasi

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