Bombay High Court
Case BriefsHigh Courts

   

Bombay High Court: In a petition filed by two convicts (‘petitioners’) challenging an order dated 09-07-2021 passed by Home Department, Government of Maharashtra directing their release after completion of 24 years of imprisonment including remission, as there are two different categories of crimes based on which remission is granted and their case seems to fall in a category having lesser year of imprisonment than 24 years as granted vide the impugned order, a Division Bench of Revati Mohite Dere and Madhav J Jamdar, JJ. held that even if it is assumed that the petitioners’ case falls under both the categories namely category no. 4 (c) and category no. 4 (d) of Guidelines dated 15-03-2010 (‘2010 Guidelines’), then also, the more beneficial category i.e., category no. 4 (c) will apply to the Petitioners’ case.

The petitioner claimed that the incident in question has taken place on account of a rivalry between two trade unions namely Mumbai Labour Union and Bhartiya Kamgar Sena. The deceased was a member of the Mumbai Labour Union, whereas, both, the Petitioners belonged to the Bhartiya Kamgar Sena. Petitioners i.e., Uday Dhaku Sutar and Ranjay Laxman Sawant (Accused 1 and 3) alongwith Prakash Yeragi (Accused 2), thus, were convicted for the offences punishable under Section 302 read with 34 of Penal Code, 1860 and were sentenced to suffer rigorous imprisonment for life.

Counsel for petitioners submitted that category 4 (c) of Guidelines dated 15th March, 2010 applies to the present case, whereas, the contention of the State is that category 4 (d) of said 2010 Guidelines is applicable.

Category 4 (c) covers Murder resulting from trade union activities and business rivalry mentioning 22 years as the period of imprisonment to be undergone including remission subject to a minimum of 14 years of actual imprisonment including set off period whereas Category 4 (d) covers murder committed by more than 1 person and mentions 22 years as the said period.

The Court noted that in the present case, murder has been committed by three persons, however, Guideline no. 4 (c) specifically contemplates murder resulting from trade union activities and does not further prescribe that the same will apply only if a murder has been committed by one person. What is relevant is murder should have been committed as a result of trade union activities and therefore, whether murder has been committed by more than one person/group of persons is totally irrelevant.

Placing reliance on State of Haryana v. Jagdish, (2010) 4 SCC 216, wherein the Court observed that “In case a liberal policy prevails on the date of consideration of the case of a “lifer” for premature release, he should be given benefit thereof.”

The Court remarked that it has been held by Supreme Court that in case of convicts the policy which was prevalent when the conviction takes place will apply and if any other liberal policy prevails on the date of consideration of case for premature release, then such policy will apply. The said principle of giving benefit to the convict of beneficial policy certainly applies to the two different policies/guidelines but the same will also apply to the categories in the same policy/guidelines, if case falls under both the categories.

Thus, the Court held that the present case is squarely governed by Guideline no. 4 (c) of Guidelines 2010, as the murder took place as a result of trade union activities and thereby quashed the impugned order.

[Uday Dhaku Sutar v. The State of Maharashtra, 2022 SCC OnLine Bom 2839, decided on 08-09-2022]


Advocates who appeared in this case:

Mr. Rupesh Jaiswal, Advocate, for the Petitioner in both the Writ Petitions;

Mr. J. P. Yagnik, APP, Advocate, for the Respondent-State in Writ Petition No. 4544 of 2021;

Ms. M. H. Mhatre, APP, Advocate, for the Respondent-State in Writ Petition No. 4545 of 2021.


*Arunima Bose, Editorial Assistant has put this report together.

Case BriefsSupreme Court

Supreme Court: The bench of UU Lait and Indira Banerjee, JJ has explained that Section 12 of the Specific Relief Act, 1963 has to be construed in a liberal, purposive manner that is fair and promotes justice.

“A contractee who frustrates a contract deliberately by his own wrongful acts cannot be permitted to escape scot free.”

While hearing a case relating to sale of land in the year 1984, the Court held that Section 12 of the Specific Relief Act is to be construed and interpreted in a purposive and meaningful manner to empower the Court to direct specific performance by the defaulting party, of so much of the contract, as can be performed, in a case like this.

“To hold otherwise would permit a party to a contract for sale of land, to deliberately frustrate the entire contract by transferring a part of the suit property and creating third party interests over the same.”

The Court explained that the relief of specific performance of an agreement, was at all material times, equitable, discretionary relief, governed by the provisions of the Specific Relief Act 1963. Even though the power of the Court to direct specific performance of an agreement may have been discretionary, such power could not be arbitrary. The discretion had necessarily to be exercised in accordance with sound and reasonable judicial principles.

After the amendment of Section 10 of the Specific Relief Act, the words “specific performance of any contract may, in the discretion of the Court, be enforced” have been substituted with the words “specific performance of a contract shall be enforced subject to …”. Hence,

“the Court is, now obliged to enforce the specific performance of a contract, subject to the provisions of sub-section (2) of Section 11, Section 14 and Section 16 of the S.R.A. Relief of specific performance of a contract is no longer discretionary, after the amendment.”

Referring to suits relating to sale of land, the Court explained that

“an agreement to sell immovable property, generally creates a right in personam in favour of the Vendee. The Vendee acquires a legitimate right to enforce specific performance of the agreement.”

The Court ordinarily enforces a contract in its entirety by passing a decree for its specific performance. However, Section 12 of the Specific Relief Act carves out exceptions, where the Court might direct specific performance of a contract in part.

Further, where a party to the contract is unable to perform the whole of his part of the contract, the Court may, in the circumstances mentioned in Section 12 of the Specific Relief Act, direct the specific performance of so much of the contract, as can be performed, particularly where the value of the part of the contract left unperformed would be small in proportion to the total value of the contract and admits of compensation.

The Court may, under Section 12 of the Specific Relief Act direct the party in default to perform specifically, so much of his part of the contract, as he can perform, provided the other party pays or has paid the consideration for the whole of the contract, reduced by the consideration for the part which must be left unperformed.

[B. Santoshamma v. D. Sarala, CIVIL APPEAL NO.3574 OF 2009, decided on 18.09.2020]

Case BriefsSupreme Court

Supreme Court: The 2-judge bench of AM Khanwilkar and Dinesh Maheshwari, JJ has held that for bringing any particular foreign exchange receipt within the ambit of Section 80-O of Income Tax Act for deduction, it must be a consideration attributable to information and service contemplated by Section 80-O; and in case of a contract involving multiple or manifold activities and obligations, every consideration received therein in foreign exchange will not ipso facto fall within the ambit of Section 80-O.

Factual Background

The appellants, who had been engaged in providing services to certain foreign buyers of frozen seafood and/or marine products and had received service charges from such foreign buyers/enterprises in foreign exchange, claimed deduction under Section 80-O of the Act of 1961, as applicable for the relevant assessment year/s. In both these cases, the respective Assessing Officer/s denied such claim for deduction essentially with the finding that the services rendered by respective assessees were the ‘services rendered in India’ and not the ‘services rendered from India’ and, therefore, the service charges received by the assessees from the foreign enterprises did not qualify for deduction in view of clause (iii) of the Explanation to Section 80-O of the Act of 1961.

ITAT Decision: As per the agreements with the referred foreign enterprises, the assessee had passed on the necessary information which were utilised by the foreign enterprises concerned to make a decision either to purchase or not to purchase; and hence, it were a service rendered from India

Kerala High Court Decision: Assessees were merely marine product procuring agents for the foreign enterprises, without any claim for expertise capable of being used abroad rather than in India and hence, the services rendered by them do not qualify as the ‘services rendered from India’, for the purpose of Section 80-O of the Act of 1961.

Supreme Court Ruling

Explaining the law on the issue the Court said that any foreign exchange receipt has to be attributable to the information or service contemplated by the provision and only that part of foreign exchange receipt, which is so attributable to the activity contemplated by Section 80-O, would qualify for claiming deduction. Such enquiry is required to be made by the Assessing Officer; and for the purpose of this imperative enquiry, requisite material ought to be placed by the assessee to co-relate the foreign exchange receipt with information/service referable to Section 80-O. Evidently, such an enquiry by the Assessing Officer could be made only if concrete material is placed on record to show the requisite correlation.

On the argument that Section 80-O of the Act is essentially an incentive provision and, therefore, needs to be interpreted and applied liberally, the Court said that that deductions, exemptions, rebates et cetera are the different species of incentives extended by the IT Act.

“Section 80-O is only one of the provisions in the Act of 1961 dealing with incentive; and even as regards the incentive for earning or saving foreign exchange, there are other provisions in the Act …”

Without expanding unnecessarily on variegated provisions dealing with different incentives, the Court said that it would be suffice to notice that the proposition that incentive provisions must receive “liberal interpretation” or to say, leaning in favour of grant of relief to the assessee is not an approach countenanced by this Court.

“at and until the stage of finding out eligibility to claim deduction, the ambit and scope of the provision for the purpose of its applicability cannot be expanded or widened and remains subject to strict interpretation but, once eligibility is decided in favour of the person claiming such deduction, it could be construed liberally in regard to other requirements, which may be formal or directory in nature.”

Applying the aforementioned principles, the Court noticed that, in the case at hand, all the clauses of the agreements read together make it absolutely clear that the appellant was merely a procuring agent and it was his responsibility to ensure that proper goods are supplied in proper packing to the satisfaction of the principal.

“Even if certain information was sent by the assessee to the principals, the information did not fall in the category of such professional services or information which could justify its claim for deduction under Section 80-O of the Act.”

The Court, hence, upheld the verdict of the High Court.

[Ramnath and Co. v. Commissioner of Income Tax, 2020 SCC OnLine SC 484 , decided on 05.06.2020]