Wednesday, 25 July 2012

Latest Judicial Case

Vinod Kumar Koul Vs. State of J&K and others - Jul 16 2012 (SC)

Constitution of India - Articles 14 and 16
of COI

The appellant applied for the post of Laboratory Assistant, which was a District cadre post. He appeared before the Selection Committee but was not interviewed on the ground that he was not a permanent resident of District Udhampur. The appellant challenged the decision of the Selection Committee not to consider his candidature on the ground of violation of Articles 14 and 16 of the Constitution. The appellant pleaded that he was qualified for the post and fulfilled other conditions. By an interim order the learned Single Judge of the High Court directed the Selection Committee to interview the appellant but made it clear that his result should not be declared without the Court’s order. The Board contended the writ petition mainly on the ground that the appellant was not a permanent resident of District Udhampur and an unambiguous permanent residence certificate issued by the competent revenue authorities of the district could be accepted. After considering the arguments of the counsel for the parties, the learned Single Judge dismissed the writ petition on the premise that the selection was to be made only from the candidates being a permanent resident of District Anantnag, and therefore was not entitled to be considered for appointment in District Udhampur. The Division Bench of the High Court agreed with the learned Single Judge. Rule 13(i) laid down the procedure of selection by the Recruitment Board. It stated that in the absence of any statutory stipulation in that regard, it could not be said that a candidate who was a permanent resident of the State of Jammu and Kashmir was not eligible to be considered for a District cadre post just because he was not a permanent resident of the particular District for which the post was advertised. It was held that the administrative decision of the Board, which was ex- facie inconsistent with the plain language of Rule 13(i), could not have been relied upon for determining eligibility of the appellant for appointment as Laboratory Assistant in District Udhampur and the learned Single Judge and the Division Bench of the High Court committed serious mistake by nullifying the appellant’s challenge to the decision of the Selection Committee not to consider his candidature and that too by overlooking the fact that at the time of submission of application, the appellant was residing in District Udhampur, which was a main part of the State of Jammu and Kashmir. Consequently, the appeal was allowed and the impugned judgment of the learned Single Judge and the Division Bench of the High Court were set aside. 

Hence, It was declared that the appellant was eligible to be considered for the post of Laboratory Assistant for District Udhampur. The Board was directed to declare the result of the appellant’s interview within a period of 4 weeks.

Advent Hospitality Pvt Ltd Vs. Tristar Hotels Pvt Ltd - Jul 19 2012 (Delhi HC)

Arbitration and Conciliation Act, 1996 - Section 9; Specific Relief Act, 1963 - Section 12

The Petitioner herein filed a petition under Section 9 of the Arbitration and Conciliation Act, 1996 seeking an order restricting the Respondent Tristar Hotels Pvt. Ltd. from creating any third party rights or transferring, alienating, constraining or parting with possession in respect of the ''Svelte Business'' comprising the freehold property situated in the building known as ''Select City Walk'' situated at New Delhi and all ancillary movable and immovable assets owned by Tristar. On considering the submissions made by the parties, it appeared prima facie to the Court that there was a misrepresentation made by Tristar in the Agreement as regards the extent of the property in question. Tristar knew that the super area of the property was only 1, 17,377 sq.ft. and yet it was prepared to sell the property in question to an extent of 1,23,377 sq. ft. There was no satisfactory explanation offered by Tristar for this. Secondly, the relevant clause of the Select sale deed made it clear that Select retained the terrace rights. The corresponding clause in the Agreement was not any different. Despite knowing this, Tristar held out to Advent in the Agreement that the terrace rights would also get transferred to Advent upon Advent paying the entire sale consideration. The mere use of the words ''if any'' was not enough to improve the situation for Tristar. In Rachakonda Narayana v. Ponthala Paravthamma (2001) 8 SCC 173, the Supreme Court explained Section 12 (3) that the first part of the said provisions mandates refusal of specific performance of a contract on certain conditions. In the absence of any agreement in that behalf between the parties, for it to determine the value if any to be placed on the terrace rights which could not be conveyed to Advent and whether Advent should be accordingly compensated. The exact value of the space was also not possible to be determined. This would require a more detailed examination which was left to the arbitral Tribunal. The balance of convenience in restraining Tristar from creating third party rights on the property in question was in favor of Advent, subject to Advent being put to terms to demonstrate its willingness and readiness to proceed with the purchase of the property in question minus the terrace rights and 6,000 sq. ft. It was held that the order would not prevent either party from seeking its modification by filing an application before the arbitral Tribunal under Section 17 of the Act or for any other interim relief in accordance with law. It was clarified that nothing in this order should be interpreted as an expression of any final binding view on the merits of the contentions of either party and was not intended to influence the outcome of the arbitral proceedings. 

Hence, The petition was accordingly disposed of.

Source: TLR (web)

Prakash Verma

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