Category: Allied Laws

The Bar Association of Coimbatore passed a resolution that no member of the Coimbatore Bar will defend the accused policemen in the criminal case against them. While dealing the case the Court observed that several Bar Associations all over India, whether High Court Bar Associations or District Court Bar Associations have passed resolutions that they will not defend a particular person or persons in a particular criminal case. Sometimes there are clashes between policemen and lawyers, and the Bar Association passes a resolution that no one will defend the policemen in the criminal case in Court. Similarly, sometimes the Bar Association passes a resolution that they will not defend a person who is alleged to be a terrorist or a person accused of a brutal or heinous crime or involved in a rape case. Such resolutions are wholly illegal, against all traditions of the Bar, and against professional ethics. Every person, however, wicked, depraved, vile, degenerate, perverted, loathsome, execrable, vicious or repulsive he may be regarded by the society has a right to be defended in a court of law and correspondingly it is the duty of the lawyer to defend him. When the great revolutionary writer Thomas Paine was jailed and tried for treason in England in 1792 for writing his famous pamphlet ‘The Rights of Man’ in defence of the French Revolution, the great advocate Thomas Erskine (1750-1823) was briefed to defend him. Erskine was at that time the Attorney General for the Prince of Wales and he was warned that if he accepts the brief, he would be dismissed from the office. Undeterred, Erskine accepted the brief and was dismissed from office.

The Court observed that disturbing news was coming from several parts of the country where Bar Associations were refusing to defend certain accused persons.

Chapter II of the Rules framed by the Bar Council of India states about ‘Standards of Professional Conduct and Etiquette’, as follows :

“An advocate is bound to accept any brief in the Courts or Tribunals or before any other authorities in or before which he proposes to practise at a fee consistent with his standing at the Bar and the nature of the case. Special circumstances may justify his refusal to accept a particular brief.”

Professional ethics require that a lawyer cannot refuse a brief, provided a client is willing to pay his fee, and the lawyer is not otherwise engaged. Hence, the action of any Bar Association in passing such a resolution that none of its members will appear for a particular accused, whether on the ground that he is a policeman or on the ground that he is a suspected terrorist, rapist, mass murderer, etc. is against all norms of the Constitution, the Statute and professional ethics. It is against the great traditions of the Bar which has always stood up for defending persons accused for a crime. Such a resolution is, in fact, a disgrace to the legal community. The Court declared that all such resolutions of Bar Associations in India were null and void and the right-minded lawyers should ignore and defy such resolutions if they want democracy and rule of law to be upheld in this country. It was the duty of a lawyer to defend no matter what the consequences, and a lawyer who refuses to do so is not following the message of the Gita.

The defendant (appellants in the appeal) contested the suit, inter alia, taking the plea that late Smt. Sadaram Appalanarasamma had acquired absolute title in the property under the Will executed in her favour and that in terms of a Will dated 5th January, 1981, she had bequeathed the property in question to the defendant which they were entitled to retain in possession as owners thereof.

The Trial Court held that the execution of the Will by Smt. Kalla Jaggayyamma had been proved and that according to the said Will the property would devolve absolutely upon the legatee Smt. Sadaram Appalanarasamma. The plaintiffs’ claim to the property based on the stipulation that upon the death of Sadaram Appalanarasamma the property would devolve upon her female offsprings was thus negatived. Aggrieved, the plaintiffs appealed to the High Court of Andhra Pradesh who reversed the view taken by the Trial Court and decreed the suit.

The question raised for consideration before the Apex Court was whether the testatrix Smt. Kalla Jaggayyamma, had made two bequests, one that vests the property absolutely in favour of her daughters and the other that purports to vest the very same property in their female offsprings. If so whether the two bequests can be reconciled and if they cannot be, which one ought to prevail.

The Apex Court referred to the provisions of the Indian Succession Act, 1925, Chapter VI which deals with Construction of Wills and observed that where the intention of the testatrix to make an absolute bequest in favour of her daughters in earlier part of the Will was unequivocal, use of the expression ‘after demise of my daughters the retained and remaining properties shall devolve on their females children only’ in subsequent part of Will would not strictosensu amount to a bequest contrary to the one made earlier in favour of the daughters of the testatrix. The expression extracted above does not detract from the absolute nature of the bequest in favour of the daughters. All that the testatrix intended to achieve by the latter part was the devolution upon their female offsprings all such property as remained available in the hands of the legatees at the time of their demise. There would obviously be no devolution of any such property upon the female offsprings in terms of the said clause if the legatees decided to sell or gift the property bequeathed to them as indeed they had every right to do under the terms of the bequest. Thus, there was no real conflict between the absolute bequest which the first part of the Will makes and the second part of the said clause which deals with devolution of what and if at all anything that remained in the hands of the legatees. The two parts operate in different spheres, namely, one vesting absolute title upon the legatees with rights to sell, gift, mortgage, etc. and the other regulating devolution of what may escape such sale, gift or transfer by them. The latter part is redundant by reason of the fact that the same was repugnant to the clear intention of the testatrix in making an absolute bequest in favour of her daughters. It could be redundant also because the legatees exercised their rights of absolute ownership and sale, thereby leaving nothing that could fall to the lot of the next generation females or otherwise. The stipulation made in the latter part did not in the least affect the legatees being the absolute owners of the property bequeathed to them. The corollary would be that upon their demise the estate owned by them would devolve by the ordinary law of succession on their heirs and not in terms of the Will executed by the testatrix. The appeal was allowed.

A suit was filed by one Sri Raghavendra against Sri C. Harish and three others for permanent injunction in respect of certain property.

The first respondent sought to produce as evidence an agreement to sell dated 26-5-95 and a general power of attorney dated 30-5-95. An objection was raised by the plaintiff against admitting these documents as evidence on the ground that they were not duly stamped. The trial court held that there was no possession of the immovable property delivered under the agreement to sell dated 26-5-1995 and as such it was admissible in evidence and it was also held stamp duty paid on agreement to sell was proper and sufficient. It further held that power of attorney dated 30-5-1995 is to be impounded with a direction to pay proper stamp duty and penalty as required under Article 41(ea) of the Karnataka Stamp Act, 1957.

The Hon’ble Court, while considering the admissibility of the documents as evidence, observed that difference between section 34 of the Karnataka Stamp Act and section 49 of the Registration Act would have to be borne in mind. Section 34 of the Karnataka Stamp Act mandates that no instrument chargeable with duty should be admitted in evidence for any purpose by any person having by law or by consent of parties authority to receive evidence if instrument is not duly stamped. In effect it would mean that a document which is not duly stamped cannot be admitted at all in evidence for any purpose if not duly stamped. Thus, under sec. 34 of the Stamp Act there is an absolute bar for the document being received in evidence itself.

Section 49 of the Registration Act deals with the effect of non-registration of a document and provides that if a document which requires to be registered under law is not registered, then such document shall not affect any immovable property comprised therein, nor can it confer any power to adopt or be received as evidence of any transaction affecting such property or conferring such power. However, proviso to Section 49 provides that an unregistered instrument may be received as evidence of a contract in a suit for specific performance or as evidence as part performance of a contract for the purpose of Section 53A of the Transfer of Property Act or as evidence of any collateral transaction not required to be effected by a registered instrument. The only area of controversy in regard to the use of such documents lies in determining whether the purpose for which it is sought to be used is really a collateral purpose.

Even when a document is inadmissible for want of registration, the same is admissible to show the character of the possession of the person in whose favour it is executed. There is therefore no gainsaid that the unregistered sale deed relied upon by the petitioner could for the limited purpose of proving the nature of his possession be let into evidence notwithstanding the fact that the deed was compulsorily registrable u/s. 17, but had not been so registered. So long as an instrument is chargeable with duty, the provisions of section 34 would render it inadmissible in evidence for any purpose unless the same is duly stamped. It can be seen that the under the agreement in question the vendor has agreed to handover vacant possession of the property agreed to be sold therein even before the execution of the sale deed in favour of the purchasers. Hence, the agreement to sell dated 26-5-1995 is admissible in evidence, only after payment of appropriate stamp duty as required under Article 15(e)(i) of the Karnataka Stamp Act 1957.

The deceased was travelling in a goods carriage vehicle as a gratuitous passenger. The risk of such gratuitous passenger was not covered by policy. In such a case insurer cannot be made liable to pay compensation.

The deceased while travelling in a passenger train fell from the train and died when the train was in motion. Evidence of witness and investigating officer clearly established that the deceased had boarded the train in question. The deceased was a bona fide passenger when he slipped from the train. It was quite natural that no part of his luggage would be with him when he slipped from the train. Factum of the deceased being a bona fide passenger cannot be doubted on the ground that no luggage was found on his dead body. The railway authority would be liable to pay compensation.

The claimants were held entitled to interest at 6% per annum on compensation awarded from the date of presentation of the claim petition till the date of award and thereafter at 9% per annum till the date of realisation.

The case of the petitioner is that he intended to purchase property. The deed of conveyance was executed on 30-9-2008 with the owner of the property one Smt. Kusum Thayal. The petitioner purchased the stamp duty of Rs.10,51,875 and presented the sale deed by using the said stamp duty along with payment of registration charges of Rs.1,23,750.

It was the case of the petitioner that both the amounts, towards registration fee and the stamp duty have been paid by way of Demand Draft. However, due to some litigation and difficulty in the title of the ownership, which the petitioner claims to have noticed subsequently, the sale deed could not be registered. As a result the petitioner requested for withdrawal of the document and also the registration of the sale deed from the Sub-Registrar Office on 23-11-2009 and requested for refund of the entire stamp duty and the registration charges.

Thereafter an impugned Govt. order is passed in exercise of the powers conferred u/s.52-A of the Karnataka Stamp Act, 1957 holding that the petitioner was entitled for refund after deducting 25 paise per rupee on the amount paid towards stamp duty.

The Court observed that there was nothing in Rules 193 and 194 of the Karnataka Registration Rules, 1965 which confers a right on the petitioner to seek refund of the amount of stamp duty paid towards registration. Rule 193(i) of the Karnataka Registration Rules, 1965 states that before an order of registration is passed, if the party makes a request in writing to the Registering Officer seeking to withdraw the document from being registered, then the officer concerned may pass an order to that effect permitting such withdrawal whereupon, one half of the registration fee and all the copying fees in respect of such document can be refunded. Therefore, Rules 193 and 194 of the Karnataka Registration Rules, 1965 do not come to the aid of the petitioner, nor do they clothe him with a right to seek refund of the stamp duty. The relevant provisions which may come to the help of the petitioner was sections 52 and 52-A of the Karnataka Stamp Act, 1957 (i.e., Allowance for stamps not required for use).

It was brought to the notice of the Court that a Govt. order dated 21-2-2009 in exercise of the powers conferred u/s.52A of the Karnataka Stamp Act, 1957 and on the basis of the recommendation made by the 2nd respondent, the State Govt. has specified the amount to be deducted while refunding the stamp duty paid by the concerned person regarding the document presented for registration which has been subsequently withdrawn that can be classified as spoiled or unusable stamp. According to the said Govt. order, if an application seeking refund is made after one year but before the expiry of two years from the date of purchase of the stamp duty, the deduction shall be at 25 paise per rupee.

Neither the rules framed nor the provisions of the Karnataka Stamp Act, 1957 clothe the petitioner with any other right to seek refund of amount in excess of what has been provided as per the Govt. order dated 21-2-2009. Therefore, the present writ petitions field by the petitioner seeking refund of the entire amount of stamp duty paid, cannot be entertained.

The claim for refund of excise duty pre-supposes that excise duty in excess of what is legally due has been paid. The demand on which the excise duty is paid is on the clearance of the goods. The claim for refund arises when subsequently if it is shown that what is paid is an excess of what is legally payable. Section 11-B deals with claim for refund of duty. The condition precedent for making a claim for refund of duty is that the incidence of such duty had not been passed on by the assessee to any other person. The assessee-company had raised the plea of refund of excise duty on the ground of unjust enrichment.

The said principle has been the subject-matter of interpretation by the Apex Court from time to time. A nine-Member Bench of the Apex Court in the case of Mafatlal Industries Ltd. v. Union of India reported in (1997) 89 ELT 247 (SC) has laid down the law on the point.

“The doctrine of unjust enrichment is just and statutory doctrine. No person can seek to collect the duty from both the ends. In other words, he cannot collect the duty from the purchaser at one end and also collect the same duty from the State on the ground that it has been collected from him contrary to law. The power of the Court is not meant to be exercised for unjustly enriching person. The doctrine of unjust enrichment, is, however, inapplicable to the State. State represents the people of the country. No one can speak of the people being unjustly enriched.”

A claim for refund made under the provisions of the Act can succeed only if the assessee states and establishes that he has not passed on the burden of the duty to any person/other persons. His refund claim shall be allowed/decreed only when he establishes that he has not passed on the burden of duty or to the extent he has not so passed on, as the case may. Where the burden of duty has been passed on, the claimant cannot say that he has suffered any real loss or prejudice. The real loss or prejudice is suffered in such a case by the person who has ultimately borne the burden and it is only that person who can ultimately claim its refund.

It is only if the assessee claims refund on the ground that he has not passed on the burden of duty to his customer by a specific plea and substantiating the same by producing acceptable evidence, then the appropriate authority shall direct payment of the refund amount to the assessee.

The High Court further observed that the adjudicating authority or the Appellate Authority denied relief relying on the judgment of the CESTAT in Addison’s case, when that judgment had been set aside by the Madras High Court, the Tribunal erred in following the judgment and dismissing the appeal of the assessee. Merely because the matter was pending before the Apex Court, that could not be the reason to disregard the judgment of the High Court. The High Court had set aside the judgment rendered by the CESTAT and the said judgment was not operating and therefore the Tribunal was wrong in ignoring the judgment of the Madras High Court.

  In a matter on interpretation of Rule 6(3)(b) of the Cenvat Credit Rules, 2004, the Tribunal observed that the Commissioner (Appeals) while granting stay held that issue was covered by earlier order of ITAT in the appellant’s own case and granted unconditional stay. However while deciding the main appeal, the Commissioner (Appeals) did not follow the earlier order of the Tribunal.

  The Tribunal on the above aspect observed that the Commissioner (Appeal) in his order is not disputing the fact that the issue is covered by the earlier decision of the Tribunal. However, he has observed that the Tribunal’s order relied on Mumbai High Court’s judgment in the case of M/s. Rallis India Ltd. (2009) 233 ELT 301 (Bom.) which was misplaced. The Tribunal observed that if the Revenue was aggrieved with the earlier order of the Tribunal, it was open for them to file an appeal thereagainst before higher Appellate forum. The judicial discipline requires the lower authority to follow the declaration of law by higher Appellate forum. Reference in this regard was made to Mumbai High Court’s judgment in the case of  CCE, Nasik v. M/s. Jain Vanguard Polybutylene Ltd., (2010) 256 ELT 523 (Bom.) as also the Tribunal’s decision in the case of M/s. Gujarat Composite Ltd. v. CCE, Ahmedabad (2006) 195 ELT 310 (Tri. Mum.). Therefore, it was not open to the Commissioner (Appeals) to take a different view when an identical issue was decided in the same party’s case by the earlier order of the Tribunal.

The plaintiffs, represented through their guardian maternal grandmother, filed the suit seeking for partition and separate possession declaration and mesne profits against the defendants. The 1st defendant the father of the plaintiffs, had sold the suit property under a registered sale deed dated 5-9-2009 for legal necessities. The matter was contested by the 2nd defendant purchaser. However, the 1st defendant father of the plaintiffs did not contest the matter. The Trial Court referring to the Amended Act, 2005 of the Hindu Succession Act, 1956, had allowed the suit filed by the plaintiffs. As against which, the 2nd defendant who was the purchaser of one of the items of the joint family property, filed appeal before the High Court on various grounds.

The Court observed that the suit property, which came to the share of the 1st defendant (father), was sold by him in favour of the 2nd defendant. It was specifically mentioned in the recitals of the sale deed that the sale was made in order to repay the loan borrowed from the Tobacco Board and the State Bank of Mysore, Abburu Branch.

The clearance of the debt was also an obligation on the part of the joint family when it was incurred towards legal necessities i.e., for the development of the joint family. In such a situation, the 1st defendant had disposed of the property.

The Court further observed that the Apex Court in the case of Sri Narayan Bal and Others v. Sridhar Sutar and Others reported in AIR 1996 SC 2371, wherein it is clearly held that the joint Hindu family property in which minor had an undivided share is sold/disposed of by Karta, as per section 8, previous permission of the Court before disposing of immovable property is not required. Further, it is held that the joint Hindu family by itself is a legal entity capable of acting through its Karta and other adult members of the family in management of the joint Hindu family property. Thus, sections 6 and 12 excludes the applicability of section 8 insofar as joint Hindu family property is concerned.

Thus it was clear that the property in question was a joint Hindu family property, it may not be necessary for the 1st defendant to seek prior permission of the Court before alienating the suit property.

The controversy in the appeals, was as to whether the persons travelling in the truck were gratuitous passengers or sitting in the truck in their capacity as owners of the goods being carried in the truck, in terms section 147(1)(b)(i) of the Motor Vehicle Act.

The High Court observed that a bare perusal of final report would show deceased Vijay Kumar Agrawal and Suresh Shah along with other deceased/injured persons were travelling in the truck in question as gratuitous passengers and not in their capacity as owners of the goods being carried in the vehicle.

The Act does not contemplate that a goods carriage shall carry a large number of persons with a small percentage of goods as considerably the insurance policy covers the death or injuries either of the owner of the goods or his authorised representative. Further, the owner of the goods means only the person who travels in the cabin of the vehicle and travelling with the goods itself does not entitle anyone to protection u/s.147 of the Act.

The Supreme Court in the case of National Insurance Co. Ltd. v. Cholleti Bharatamma and Others, (2008) 1 SCC 423, AIR 2008 SC 484, held as under:

“It is now well settled that the owner of the goods means only the person who travels in the cabin of the vehicle.”

By applying the law laid down by the Supreme Court in the case referred hereinabove, the Court held that deceased Vijay Kumar Agrawal and Suresh Shah were travelling in truck as gratuitous passengers and not as owners of the goods being carried in the truck. Thus statutory liability of the insurance policy cannot be extended to cover the risk of gratuitous passengers sitting in the goods carriage vehicle.

With respect to the property being ancestral in the hands of Amar Nath, case of the protagonist i.e. those who questioned the Will was that since Amar Nath inherited the property from his father Roop Narain, law imparted an ancestral character to the property. Secondly, that when Roop Narain died, the Hindu Succession Act, 1956 had been promulgated, as per Section 4 whereof the provisions of the Act expressly had overriding effect over any text, rule, custom or usage amongst Hindus which was contrary to the Act.

The Delhi High Court held that the text of Hindu Law is that a male Hindu, on birth, acquires an interest in the Joint Hindu family properties. If there was a Joint Hindu family property when Prem Bhatnagar was born, he could have possibly argued that he acquired an interest in the property by birth. But, when Prem Bhatnagar was born, there neither was a joint Hindu Family nor any property belonging to the joint Hindu family. The suit property was owned by his grandfather Roop Narain and parties are not at variance that Roop Narain acquired the property from his own funds. Thus, Roop Narain held the property as his individual property and not as joint Hindu family property. He died in 1957 by which date the Hindu Succession Act, 1956 was in operation. Thus, succession to the estate of Roop narain was as per Section 8 of the Hindu Succession Act, 1956 since Roop Narain died intestate.

The High Court further held that people making disproportionate bequest, is not an unknown thing in law. After all, one object of a Will is to alter the natural line of succession or a share in a property which may be inherited by devolution of interest. A disproportionate bequest by itself is not a suspicious circumstance. That relationship between a father and all his children was equally good and yet in spite thereof only one child is made the beneficiary is again not a suspicious circumstance by itself. The Will was registered before the Sub- Registrar the day next of his execution. The High Court finally held that the testator has written that the beneficiary i.e. Ravi Mohan would need the consent of Roop Rani before he could sell the property does not make Roop Rani an interest witness. She has no interest inasmuch as nothing has been bequeathed to her. The condition in the Will that if Ravi Mohan were to sell the property, he would need the permission from Roop Rani, is void, for the reason the bequest in favour of Ravi Mohan is absolute and since mode of enjoyment cannot be curtailed; a clause curtailing the same in the bequest is void.

The defendants/appellants had filed first appeal, contending that the sale deed executed by one Poosammal dated 17.03.1995 in favour of the plaintiff cannot legally convey any saleable right since the said Poosammal had foregone her share in her husband late Pakkirisamy’s property after she converted into Christianity and married one Issac in the year 1956 and also got 5 children from the second husband Issac. Therefore, her conversion from Hinduism to Christianity, disentitles her from inheriting her deceased husband’s property and also her parents property who are Hindus. As this settled legal position was lost sight of by the trial court, defendants prayed for setting aside the decision. The First appellate court concurred with the judgment and decree of the trial court and dismissed the first appeal. As a result, the present second appeal was filed by the defendants.

The Honourable Court held that the original suit property was purchased by husband of the vendor. Though on the death of her husband the vendor had converted to Christian religion, same would not disentitle her from her right of inheritance of the property. Thus, vendor having right and title to suit property to convey same in favour of plaintiff, sale deed would be proper. It was further observed that she had converted to Christianity by marrying a Christian, therefore she would not lose her right of inheritance in property of her deceased husband by virtue of such conversion.

The petitioner had challenged the order passed by the Commissioner (Appeals) Central Excise and Service Tax, Ranchi, whereby the ld. Commissioner (Appeals) without affording any opportunity of hearing to the writ petitioner had decided the petitioner’s prayer for waiver of deposit of the duty and interest demanded and penalty imposed and for stay of the operation of the impugned order passed by the Addl. Commissioner of Central Excise, Jamshedpur. The ld. Commissioner (Appeals) C.E. and S.T. Ranchi was of the view that in view of the judgment of the Supreme Court delivered in the case of Union of India vs. M/s. Jesus Sales Corporation Ltd. (1996) (83) ELT 486 (SC) opportunity of hearing was not required before deciding the prayer for waiver of pre deposit condition provided under the proviso to section 35 for the Central Excise Act, 1944 and for passing the interim order of stay.

The petitioner submitted that there was gross indiscipline and judicial impropriety on the part of the Commissioner (Appeals), who even after decision of the Court in M/s. Panch Sheel Udyog had passed the ex parte order in the present case.

The Honourable Court observed that if Commissioner(Appeals), Central Excise & Service Tax, Ranchi was of the view that he had correctly understood the judgment of M/s. Jesus Sales Corporation Ltd (supra) and decided the matter without affording opportunity of hearing to the writ petitioner then, it was the heavy duty upon him to update himself with the laws as the said authority himself took the task of deciding the matter without the assistance of the applicant before him. The law laid down by the Honourable Supreme Court and which had already been interpreted by the various high courts should not have been ignored. The Commissioner ought to have updated his knowledge by reading the judgments referred above wherein the case of M/s. Jesus Sales Corporation Ltd has been considered and it has been held that M/s. Jesus Sales Corporation Ltd. case has not barred hearing of applicant seeking relief of waiver of condition of pre deposit. If the Commissioner (Appeals) C.E and S.T. Ranchi had no knowledge of those judgments, then he is certainly guilty of not keeping himself updated in the case where, according to him, he has been given power to decide application having civil consequences, without following principles of natural justice and finding out one old judgment ,i.e, the judgment delivered in the case of M/s. Jesus Sales Corporation Ltd which he interpreted in the manner in which he wanted to interpret. The interpretation given by the Commissioner (Appeals) Central Excise and Service Tax, Ranchi was certainly erroneous, in view of the reasons given in the other judgments, wherein the reasons have been given in detail to show that the case of M/s. Jesus Sales Corporation Ltd never laid down that opportunity of hearing is not required before passing any order under sec. 35F of the Central Excise Act, 1944 and that position has been fully explained by various High Courts.

There was clear direction of the Court in the one case of M/s. Panch Sheel Udyog to the same authority, to grant opportunity of hearing to the writ petitioner in the similar and identical facts and circumstances, yet Commissioner (Appeals) Central Excise & Service Tax, Ranchi, without giving any reference to the decision of this Court in M/s. Panch Sheet Udyog passed the impugned order, which may amount to gross contempt of this court.

The Court observed that such attitude of the Commissioner (Appeals) certainly reflects his attitude towards litigant.

In totality, it was held that order under challenge was absolutely illegal and contrary to law. The Commissioner (Appeals) had committed gross error of law in denying the opportunity of hearing to the writ petitioner.

“If a judgment is overruled by the higher court, the judicial discipline requires that the judge whose judgment is overruled must submit to that judgment. He cannot, in the same proceedings or in collateral proceedings between the same parties, rewrite the overruled judgment “

In the same vein, it may stated that when the judgment of a Court is confirmed by the higher court, the judicial discipline requires that Court to accept that judgment, and it should not in collateral proceedings write a judgment contrary to the confirmed judgment. The Court referred to the observations of Krishna Iyer, J. in Fuzlunbi vs. K. Khader Vali and another reported in 1980 (4) SCC 125:-

“………No judge in India, except a larger Bench of the Supreme court, without a departure from judicial discipline can whittle down, wish away or be unbound by the ratio of the judgment of the Supreme Court.”

 Bihar State Govt. Secondary School Teachers Association vs. Bihar Education Service Association AIR 2013 SC 487

On appeal, the High Court held that since the replacement of the tin-sheet roof by cement concrete slab did not result in addition of the accommodation available to the tenant, the act of replacement did not tantamount to the construction of a permanent structure. The replacement instead constituted an improvement of the premises in question. On further appeal, the Honourable Supreme Court observed that no hard and fast rule can be prescribed for determining what is permanent or what is not. The use of the word ‘permanent’ in Section 108(p) of the Transfer of Property Act, 1882 is meant to distinguish the structure from what is temporary. The term ‘permanent’ does not mean that the structure must last forever. A structure that lasts till the end of the tenancy can be treated as a permanent structure. The intention of the party putting up the structure is important, for determining whether it is permanent or temporary. The nature and extent of the structure is similarly an important circumstance for deciding whether the structure is permanent or temporary within the meaning of Section 108(p) of the Act. Removability of the structure without causing any damage to the building is yet another test that can be applied while deciding the nature of the structure. So also the durability of the structure and the material used for erection of the same will help in deciding whether the structure is permanent or temporary. Lastly, the purpose for which the structure is intended is also an important factor that cannot be ignored.

Applying the above tests to the instant case, the structure was not a temporary structure by any means. The kitchen and the storage space forming part of the demised premises was meant to be used till the tenancy in favour of the Respondentoccupant subsisted. Removal of the roof and replacement thereof by a concrete slab was also meant to continue till the tenancy subsisted. The intention of the tenant while replacing the tin roof with concrete slab, obviously was not to make a temporary arrangement, but to provide a permanent solution for the alleged failure of the landlord to repair the roof. The construction of the passage was also a permanent provision made by the tenant which too was intended to last till the subsistence of the lease.

The concrete slab was a permanent feature of the demised premises and could not be easily removed without doing extensive damage to the remaining structure. Such being the position, the alteration made by the tenant fell within the mischief of Section 108(p) of the Transfer of Property Act and, therefore, constituted a ground for his eviction in terms of Section 13(1 )(b) of the West Bengal Premises Tenancy Act, 1956.