Court : Mumbai Nagpur
..... in the case of noida enterpreneurs association, supra, wherein the hon'ble apex court has held that the state or public authority holding property for the public or which has been assigned the duty of grant of largesse acts as a trustee and that public trust doctrine is a part of the law of the land and this doctrine has grown from article 21 of the constitution of india and ultimately makes accountable the state and all the public functionaries to the people in whom the sovereignty vests ..... also the contention of the learned senior counsel for the petitioners that the two contractors-shashikant bambal and shri bhakte, oth submitted affidavits to the effect that the latter would have no objection if the works allotted to him were carried out by the former and the former would have no objection in accepting the payments for the works done by him at the rate quoted by the latter which were some what lower than the rates quoted by the former. ..... provision of section 72 is yet to take effect and it would take effect only when the rules regulating exercise of financial powers by the standing committee or the council would be framed by the state government and till the time such rules are framed, the standing committee or the council would continue to be governed by the old provision which prescribes the limit of rs.40,000/- for sanctioning execution of works relating to construction of road, bridge, building or water supply or drainage without obtaining any ..... of kerala and ors ..... kerala .....
Tag this Judgment!Court : Mumbai Nagpur
..... , thodupuzha taluk shop and commercial establishment workers' union the kerala high court held: (lab ic p. ..... in my opinion and on the general principles of civil law it is for the party to lead evidence to prove the positive facts and it is not for the other side to prove the negative facts. ..... there is much substance in the contention of the learned counsel that the respondent employee had filed the complaint in the capacity of an employee and she asserted positively that she was a workman as contemplated under the i.d. ..... if the respondent had pleaded positively that she was a workman as contemplated by law in that case it was for her to step in the witness box to prove her positive assertion that the duties performed by her fell within the parameters of the definition of workman. ..... the question whether the relationship between the parties is one of employer and employee is a pure question of fact and ordinarily the high court while exercising its power of judicial review shall not interfere therewith unless the finding is manifestly or obviously erroneous or perverse.? ..... 402, para 9) the burden of proof being on the workmen to establish the employer-employee relationship an adverse inference cannot be drawn against the employer that if he were to produce books of accounts they would have proved employer-employee relationship. 49. ..... act and therefore, she was entitled to file the complaint filed by her. .....
Tag this Judgment!Court : Mumbai Nagpur
..... once it is found that s was a child below eighteen years, coupled with the admitted position that the report at exh.43 proved the appellant to be the father of the said child, the conviction of the appellant for having committed the offences punishable under sections 3 (a), 5 (j) (ii) and 5 (l) of the said act cannot be faulted. 15. ..... though heavy reliance was placed by the learned counsel for the appellant on the judgment of hon'ble supreme court in jaya mala [supra] to contend that a margin of error of two years on either side was possible, the ratio therein cannot support the case of the appellant, especially when the version of the prosecutrix as regards her date of birth has gone unchallenged. ..... though it is true, as urged by the learned counsel for the appellant, that the initial burden to prove the age of the prosecutrix lies on the prosecution, it is also true that if the relevant version of the prosecutrix as regards her date of birth has gone unchallenged, it means that the defence has accepted said statement made on oath by the witness. ..... it was urged that initial burden to prove the age of the prosecutrix was on the prosecution and having failed to do so, the appellant could not have been convicted under the provisions of the said act by treating the prosecutrix as a child. ..... state of kerala [(2013) 9 scc 113], [b] ganga singh vs. .....
Tag this Judgment!Court : Mumbai Nagpur
..... mr.rohit deo, learned acting advocate general appearing on behalf of the state government made the following submissions: i) that the notings recorded in the official files by the officers of the government at different levels and even the ministers do not become decisions of the government unless the same is sanctified and acted upon by issuing an order in the name of the president or governor, as the case may be, authenticated in the manner as provided in articles 77(2) and 166(2) and is communicated to the affected person, the learned acting advocate general relied on the judgments of the apex court in the cases of shanti sports club ..... . similarly, in the case of bhikubhai vithlabhai patel and others (cited supra), their lordships, while interpreting the words is of opinion and are necessary as could be found in section 17(1) (a)(ii) of the gujarat town planning and urban development act, 1976, observed that the court was entitled to examine whether there has been any material available with the state government and the reasons recorded, if any, in the formation of opinion and whether they have any rational connection with or relevant bearing on the formation of the .....
Tag this Judgment!Court : Mumbai Nagpur
..... it was the specific contention raised in the said writ petition, relying upon the various provisions of the maharashtra regional and town planning act, 1966, that the development plan for the city of nagpur published n the year 1976, makes the provision for 40 feet (12 meters) wide abhyankar road and the implementation of the scheme containing 80 feet (34 meters) wide abhyankar road, would be contrary to the provisions of the maharashtra regional and town planning act. 11. ..... according to the respondents, the scheme sanctioned by the state government under section 44 of the nit act on 23-1-1964 to the extent it runs contrary to the final development plan prepared and sanctioned under section 31 of the maharashtra regional and town planning act ( mrtp act ), initially in the year 1976 and revised in the year 2000, cannot be implemented. ..... we find the argument to be fallacious, for the reasons (i) that the acquisition of land in the area covered by the mrtp act need not necessarily be under the provisions of the said act, but it can also be under the provisions of the nit act or the land acquisition act, which do not provide such right, (ii) that the land in the present case has already been acquired for the purposes of the scheme containing internal road, under the provision of section 45 of the nit act even without such provision in the development plan, and (iii) that the operation of deeming fiction under .....
Tag this Judgment!Court : Mumbai Nagpur
..... it is important to note that there was a specific plea in paragraph 10 of writ petition no.4433 of 1998 to the effect that "the fundamental and legal right of the citizens of pune of submitting objections and suggestions to any modification in the final development plan u/s 37 of the act has been infringed", and that was solely on account of the developer being a close relation of the then chief minister who was also the minister for urban development which controls the appointments of a municipal commissioner to a corporation established under the b.p.m.c act 1949. ..... thus, this division bench finds that the test for the purposes of section 37 of the mrtp act is whether the change resulted in the original development plan losing its identity. ..... ultimately, since the direction was given by the state government, hon'ble court notes that it was necessary for it to act under section 37 (1aa), and to publish a notice in the official gazette to invite objections and suggestions from the public at large, and also from the persons affected by the proposed modification ..... while considering the aspect of deletion of reservation, hon'ble apex court holds that under sub-section (1) of section 50 of the mrtp act, the appropriate authority defined u/s 2(3) has to be satisfied that the land is not required for the public purpose for which it is reserved, "appropriate authority" is a public authority on whose behalf the land is designed for a public purpose in any plan which it is authorised to .....
Tag this Judgment!Court : Mumbai Nagpur
..... have mandated that before a court interferes in tender or contractual matters in exercise of power of judicial review, it should pose to itself two questions: - (i) whether the process adopted or decision made by the authority is mala fide or intended to favour someone or whether the process or decision made is so arbitrary and irrational that the court can say that the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached and (ii) whether public interest is affected. ..... it will be relevant to refer to the following observations of their lordships in the said case:- "therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions: (i) whether the process adopted or decision made by the authority is mala fide or intended to favour someone; or whether the process adopted or decision made is so arbitrary and irrational that the court can say: "the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have ..... insofar as sub-clause (i) is concerned, it provides that any attempt by tenderer to change the format of any of the supporting documents of the mtf while uploading or any attempt to tinker with the software of the portal will render his tender liable for cancellation and his subsequent blacklisting. ..... pawan kumar reported in air 1976 supreme court 1766. .....
Tag this Judgment!Court : Mumbai Nagpur
..... (3) the mental back-ground created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence (4) the fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation." 16. ..... proof of such casual connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in section 299. ..... - if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or 4thly:- if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. ..... culpable homicide :- whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. .....
Tag this Judgment!Court : Mumbai Nagpur
..... it is the contention of the learned counsel for the applicants that while issuing process, by the order passed on 12th january, 2015, the learned 5th judicial magistrate, first class, akola has not followed the mandate of section 202 of the criminal procedure code, which has been newly amended by the amendment act, 2005 and, therefore, the order is vitiated. ..... about the second case of appaiyam and another (supra), i find that the facts of that case are different in the sense that those facts disclosed that the complaint had been prepared with a malafide intention and that sufficient grounds were not made out for proceeding against the applicants and, therefore, the high court thought it fit to reject the contention of the applicants that the order of dismissal of the complaint was illegal and improper. ..... such postponement of issue of process in a case where the accused is residing beyond the territorial jurisdiction of the court of judicial magistrate has been made mandatory under the newly amended section 202 of the code of criminal procedure, which has been inserted in the code of criminal procedure by act 25 of 2005 with effect from 23.6.2006. ..... veeranna shivallngappa konjalgi, judgment passed by the hon'ble supreme court of india on 23.4.1976, and the judgment of the madras high court in the case of appaiyam and another vs. r. .....
Tag this Judgment!Court : Mumbai Nagpur
..... the contention cannot be accepted for the reason that once the real owners of the suit property have, by their own conduct, as per section 115 of the evidence act, intentionally caused the defendants to believe that the transferor is the true owner or is authorized by them to transfer the suit property, for which they had no objection, the transaction at exhibit 74 in favour of the defendants has to be presumed as bona fide with the consent of the plaintiffs and such direct representation by signing as attesting witness, protects the transaction under section 41 of the transfer of property ..... on the contrary, the evidence brought on record and the findings recorded in earlier paras clearly establish the knowledge of the plaintiffs about the possession of the defendants and the execution of sale-deeds on 4-6-1974, 13-4-1976 and 19-7-1976 itself. ..... mehkar, district buldana, sold by laxmibai to the deceased-defendant no.1-amruta and the defendant no.3-yashwant by the registered sale-deeds dated 4-6-1974 and 19-7-1976; to the deceased-defendant no.2-dagdu by the registered sale-deed dated 13-4-1976; and to the defendant no.4-gajanan by the registered sale-deed dated 2-4-51978. 2. ..... the contention that the defendants were bona fide purchasers of the suit property under the sale-deeds dated 4-6-1974 at exhibit 74, dated 13-4-1976 at exhibit 76, and dated 19-7-1976 at exhibit 78 from laxmibai without notice for valuable consideration, was also rejected by the trial court. .....
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