Monthly Archives: August 2018

Service Rules – Cannot be altered by Government Orders

It is well settled that where the relevant Service Rules or the Rules governing the conditions of services provides for a particular thing, a simple Government Order is not sufficient to alter or modify the said thing or the Rules.

In Vijay Singh v. State of U.P., 2005 (2) AWC 1191 (FB), it was held in unequivocal terms that Statutory Rules cannot be set at naught by issuing executive instructions.

In Rajasthan State Industrial Development and Investment Corporation v. Subhash Sindhi Co-operative Housing Society, (2013) 5 SCC 427, it has been held that executive instructions which have no statutory force cannot override the law and any notice, circular, guidelines etc. which run contrary to the statutory laws cannot be enforced. Dr. Chandra Mohan Verma v. State of U.P., 2018 (128) ALR 384.

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Misbranding

In Parakh Foods Ltd.v. State of Andhra Pradesh, (2008) 4 SCC 584, it was held as under:

“In the present case, it is true that the appellant has used pictures of vegetables on the label of the product which is refined soyabean oil, which according to the appellant is to depict the purpose for which the oil can be used, viz., preparation of the vegetables depicted thereon. Unless the picture depicted on a label of edible oils and fats exaggerates the quality of the product, it would not fall within the mischief of Rule 37-D of the Prevention of Food Adulteration Rules. In the present case, the vegetables shown on the label of soyabean oil do not in any way indicate that the quality of soya bean oil is ‘super-refined’, ‘anti-cholestrol’, ‘cholestrol fighter’, ‘soothing to heart’, ‘cholestrol friendly’, ‘saturated fat free’ etc., nor it indicdates the exaggeration towards the quality of the product to come within the mischief of Rule 37-D of the Prevention of Food Adulteration Rules.”

In Tata Chemicals Ltd. v. State of U.P.¸2018 (128) ALR 497, it was held that the provisions of Section 3 (zf) of the Food Safety and Standards Act relating to ‘misbranded food’ would have no application as the article or food contained in the packet has not been offered or promoted for sale with false, misleading or deceptive claims. Therefore, there has been no violation of provisions of Regulation 2.3.1 (5) of the Packaging Regulations.

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Divorce by Mutual Consent – Maintainability of Appeal

The first part of Section 13-B of the Hindu Marriage Act contemplates for presentation of petition for dissolution of marriage by mutual consent by both the parties to the marriage, if they are living separately for a period of one year or more and have agreed to the dissolution of the marriage. The second part of Section 13-B of the Hindu Marriage Act has two sub – parts. The first sub-part provides for moving a motion by both the parties not earlier than six months from the date of presentation of the divorce petition and not later than eighteen months of the said date. In other words, it contemplates initiation of the second motion by both the parties after expiry of six months but before the expiry of eighteen months from the date of presenting petition for divorce.

The second sub-part contemplates that if the petition is not withdrawn in the meantime, the court shall, on being satisfied after hearing the parties and after making inquiries that the averments in the petition are true, pass a decree for divorce.

In the case of Hitesh Bhatnagar v. Deepa Bhatnagar, 2011 (86) ALR 491, the Hon’ble Supreme Court has held that if the second motion is not made within period of eighteen months of the first motion petition, then court is not bound to pass a decree of divorce by mutual consent. The aforesaid time limit is not for withdrawal of the petition or consent, rather consent can be withdrawn at any t ime before a decree of divorce is passed.

In the case of Smt. Sureshta Devi v. Om Prakash, 1991 (17) ALR 263, it has been laid down that on the joint motion of the parties to grant divorce by mutual consent the Court is supposed to make an inquiry, hear and examine both the parties to ascertain that the consent of the parties has not been obtained by force, fraud or undue influence.

Section 23(1)(bb) of the Hindu Marriage Act also casts an obligation upon the courts in the matter of divorce by mutual consent to satisfy itself that the consent has not been obtained by force, fraud or undue influence. Thus , the court is obliged to make requisite inquiry in the matter before proceeding to pass a decree of divorce by mutual consent.

It means that for a decree of divorce by mutual consent joint petition is mandatory and that the second motion has to be made by the parties after six months but before expiry of eighteen months of the first motion petition and that the parties are free to withdraw the petition anytime before the passing of the decree. The decree has to be passed after making due inquiry as to the genuineness and bona fide of the parties to the petition.

Section 28 of the Hindu Marriage Act which permitted filing of appeal against the decrees and orders passed under the Act placed no rider on filing appeal even against a consent decree. It permitted appeal against all decrees made by the court in any proceedings under the Act, except those relating to award of costs. Thus, by necessary implication, even consent or compromise decree, if passed under the Hindu Marriage Act are open to appeal.

In Smt. Krishna Khetrapal v. Satish Lal, AIR 1987 P&H 191, it has been held that against the decree of divorce by mutual consent appeal is maintainable under Section 28 of the Hindu Marriage Act. Smt. Pooja v. Vijay Chaitanya, 2018 (129) ALR 711.

 

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Interest – Meaning of

In Halsbury’s Laws of England, 4th Edition, Vol. 32, “interest” has been defined as follows:

“127. Interest in General.—Interest is the return or compensation for the use or retention by one person of a sum of money belonging to or owed to another. Interest accrues from day to day even if payable only at intervals, and is, therefore, apportionable in respect of time between persons entitled in succession to the principal.”

 

According to Law Lexicon, by P.Ramanatha Aiyar, 3rd Edition (2005) Vol. 2:

“Interest” means the time value of the funds or money involved, which unless otherwise agreed, is calculated at the rate and on the basis customarily accepted by the banking community for the funds of money involved.”

 

In Words and Phrases Permanent Edition, Vol. 22, P. 148, “interest” means:

(i) “Interest” is compensation for loss of use of principal. Jersey City v. Zink, 44 A 2d 825 : 133 NJ Law 437 (1945).

(ii) “Interest” means compensation for the use or forbearance of money. Commr. of Internal Revenue v. Meyer, 139 F 2d 256 (6th Cir 1943).

 

Black’s Law Dictionary, 6th Edition. (p. 812) defines “interest” as:

For use of money.—Interest is the compensation allowed by law or fixed by the parties for the use or forbearance of borrowed money. Jones v. Kansas Gas and Electric Company, 222 Kan 390 : 565 P 2d 597 (1977).

 

There is no manner of doubt that normally a person would be entitled to interest for the period he is deprived of the use of money and the same is used by the person with whom the money is lying. State of Karnataka v. Karnataka Pawn Brokers Association, (2018) 6 SCC 363.

   

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