2017 SCC Vol. 3 April 14, 2017 Part 4

Constitution of India — Art. 226 — Appeal against/Review of orders passed under Art. 226 — Review of orders passed under Art. 226: High Court dismissed applications for condonation of delay in filing review petitions as well as review petitions for want of prosecution but as main part of delay is applications for condonation of delay on account of prosecution of SLP before Supreme Court in earlier round, therefore, in order to avoid further round of litigation on restoration and condonation of delay, order of dismissal for default of applications for condonation of delay, set aside. Review applications restored and delay in filing review petitions before High Court condoned, High Court directed to dispose of review petitions on merits. [Meerut Kendriya Thok Upbhokta Sahakari Bandar v. Vakil Chand Jain, [(2017) 3 SCC 613]

Constitution of India — Art. 32 — Public Interest Litigation — Constitution of SIT of CBI, when warranted: Looking into report of One-Man Inquiry Committee constituted by Supreme Court to look into the allegations of meeting the persons accused in Coal Block Allocation Scam cases by the then CBI Director, CBI, directed to conduct investigation, as SIT, into abuse of authority prima facie committed by the then CBI Director so as to scuttle enquiries, investigations and prosecutions being carried out by CBI in Coal Block Allocation Scam cases. SIT would be led by Director, CBI and assisted by two officers nominated by Director, CBI. Special Public Prosecutor in Coal Block Allocation Scam cases to assist Director, CBI on legal issues. [Common Cause v. Union of India, [(2017) 3 SCC 501]

Constitution of India — Arts. 14, 15 and 16: Special reservation in favour of physically handicapped, women, etc. under Arts. 16(1) or 15(3) are instances of horizontal reservation. When attempts of physically handicapped candidates of OBC category and physically handicapped candidates of general category, who appeared in Civil Services Examination are made equal, and physically handicapped candidate belonging to OBC category, in addition to 10 yrs’ relaxation in age also enjoys three years’ more age relaxation for appearing in the examination, there can be no discrimination between the two. Reserved category candidates belonging to OBC are separately entitled to benefits which flow from vertical reservation, and horizontal reservation being different from vertical reservation, no discrimination can be found when physically handicapped candidates of both categories are given equal chances i.e. 7 to appear in the examination. [Union of India v. M. Selvakumar, [(2017) 3 SCC 504]

Constitution of India — Arts. 30 & 29 and Art. 226 — Minority educational institutions, regardless of whether they are aided or unaided — Extent of regulation permissible: Despite the autonomy under Art. 30, exercise of power by a minority institution discharging public functions is open to judicial review. Autonomy of a minority institution does not dispense with the requirement to act fairly and in a transparent manner and High Court in exercise of its power of judicial review is entitled to examine fairness of selection process. Grievance of a citizen that he was treated unfairly cannot be ignored on the ground that a minority institution has autonomy or right of choice. Exercise of right of choice has to be fair, non-discriminatory and rational. [IVY C. DA Conceicao v. State of Goa, [(2017) 3 SCC 619]

Constitution of India — Sch. VII List II Entry 49, List I Entry 31 and Arts. 245 to 254 and Pt. XII and Art. 265 — Legislative competence of State Legislature: Tax on land and building used by mobile tower, is covered by Sch. VII List II Entry 49, when tax on mobile towers is levied on the yield from the land and building so used, and not on the use of the plant and machinery in the mobile tower. Hence, State Government can impose a tax on land and building used by mobile towers by deriving power from Sch. VII List II Entry 49 (that is, “taxes on lands and buildings”) even if subject of “telegraph, wireless, broadcasting and other like forms of communication” is covered under by Sch. VII List II Entry 31. Both entries can co-exist and there can be no encroachment either way. [Ahmedabad Municipal Corpn. v. GTL Infrastructure Ltd., [(2017) 3 SCC 545]

Courts, Tribunals and Judiciary — Judiciary — Adequacy of judicial resources/infrastructure — Huge backlog of cases and ever increasing workload: Directions issued regarding management of vacancies, posts and judicial infrastructure. [Imtiyaz Ahmad v. State of U.P., [(2017) 3 SCC 658]

Criminal Procedure Code, 1973 — S. 202 [as amended by S. 19 of Code of Criminal Procedure (Amendment) Act (25 of 2005)] — Object: Enquiry by Magistrate in cases where accused resides at a place beyond his jurisdiction is mandatory. Enquiry envisages proper application of mind by examination of witnesses by Magistrate. [Abhijit Pawar v. Hemant Madhukar Nimbalkar, [(2017) 3 SCC 528]

Education and Universities — Employment and Service Matters re Educational Institutions — Appointment/Recruitment: Reserving identified teaching posts in faculties and colleges of various universities for all categories i.e. SC/ST, OBC and general category persons with disabilities by the Government, being a case of horizontal reservation, and granting relaxation in minimum standards by way of extending 5% relaxation in cut-off marks for appearing in NET for JRF and Lecturership, to them all, valid and proper as the same would bring parity amongst all persons with disabilities irrespective of their vertical categories. [All India Confederation of the Blind v. Union of India, [(2017) 3 SCC 525]

Education and Universities — Professional Colleges/Education — Medical and Dental Colleges — Admission — 2016-2017 MBBS admissions: In this matter of illegal admission of petitioners and similarly situated persons, due to maladministration by State Government and college authorities and petitioners and similarly situated persons taking a gamble by not appearing in NEET Phase II even though entrance examination through which they had got admission had been declared illegal, attempt to overreach Supreme Court, stringently deprecated. Rule of law must prevail. Thus, admission of petitioners and similarly situated persons, illegal and unjustified and set aside. [Rishabh Choudhary v. Union of India, [(2017) 3 SCC 652]

Enforcement of Security Interest and Recovery of Debts Laws and Miscellaneous Provisions (Amendment) Bill, 2016 — Lack of infrastructure, manpower and resources commensurate with the burden of work — Effect: Efficacy of legislation also depends on the efficiency of tribunals in discharging important adjudicatory functions entrusted to them. Hence, so long as infrastructure provided to Tribunals is not commensurate with the burden of work and nature of judicial duties, legislative changes to provide for expeditious disposal of proceedings before Debts Recovery Tribunals may not by themselves achieve said object. Hence, Union of India directed to file affidavit as to whether timelines set down in the amended legislation are capable of being achieved with existing infrastructure including judicial personnel and staffing pattern of Debts Recovery Tribunals and Debts Recovery Appellate Tribunals. [Centre for PIL v. Housing & Urban Development Corpn. Ltd., [(2017) 3 SCC 605]

Income Tax Act, 1922 — S. 2(6-A)(e) — “Dividend” — Scope: In terms of S. 2(6-A)(e), the term “dividend”, included (i) any payment by a company of any sum by way of advance or loan to a shareholder; (ii) any payment by any such company on behalf of a shareholder; (iii) any payment by any such company for the individual benefit of a shareholder. [L. Alagusundaram Chettiar v. CIT, [(2017) 3 SCC 580]

Income Tax Act, 1961 — S. 2(22)(e) r/w Expln. 3 thereto — Dividend — Deemed dividend: As per the provisions of S. 2(22)(e) of the Act, once the payment from a company (not being a company in which the public are substantially interested), is received by the HUF and shareholder (karta of HUF, in this case) is a member of the said HUF and he has substantial interest in the HUF, the payment made to the HUF shall constitute deemed dividend within the meaning of sub-clause (e) of S. 2(22) of the Act. [Gopal & Sons (HUF) v. CIT, [(2017) 3 SCC 574]

Land Acquisition Act, 1894 — Ss. 18, 4(1), 5-A, 6, 11-A, 17 and 23 — Award: Failure to challenge award at earliest possible instance and challenging it in fresh litigation (third round), barred by Or. 2 R. 2 CPC in this case and also by delay and laches. [NOIDA v. Harkishan, [(2017) 3 SCC 588]

Land Acquisition Act, 1894 — Ss. 4(1), 6 and 23: Consent award does not change compulsory nature of acquisition, which remains compulsory. [Balakrishnan v. Union of India, [(2017) 3 SCC 634]

Motor Vehicles Act, 1988 — Ss. 166, 168 and 173 — Death in motor accident — Award of just and reasonable compensation: The victim aged 36 yrs was a resident of USA working as a Senior IT professional and earning Rs 43,68,624 p.a. and applying multiplier of 15 and deducting victim’s 1/3rd income towards his personal expenses and adding certain amount towards conventional heads, Claims Tribunal awarded a sum of Rs 4,36,95,740 as compensation to claimants. But in appeal, High Court reduced said compensation to Rs 3,75,00,000 by making certain deduction towards income tax. The findings of courts below with respect to material issues such as determination of annual income of deceased, his age, number of dependants, etc., apart from being concurrent, could not be said to be in any way arbitrary and nor did they result in awarding a bonanza or a windfall to claimants so as to call for further reduction in compensation awarded by High Court. What had been eventually awarded to claimants by High Court was a just and reasonable compensation within the meaning of S. 166 of MV Act, consequently appeal filed by Insurance Company seeking further reduction in compensation as well as appeals filed by claimants seeking enhancement in compensation, dismissed. [Oriental Insurance Co. Ltd. v. Swapna Nayak, [(2017) 3 SCC 598]

Prevention of Corruption Act, 1988 — Ss. 7 and 13(1)(d) r/w S. 13(2) — Illegal gratification — Demand and acceptance of — Proof of — Since qua non for constituting offence under abovestated sections: Aforementioned twins requirements of demand and acceptance of illegal gratification were established against appellant-accused on basis of evidence adduced by prosecution, beyond reasonable doubt and prosecution proved its case on basis of clinching evidence produced by it, regarding trap and recoveries, hence, High Court rightly reversed acquittal of appellant. Therefore, conviction of appellant under Ss. 7 and 13(1)(d) r/w S. 13(2), PC Act, stands confirmed. [Umesh Manan v. State of M.P., [(2017) 3 SCC 608]

Public Accountability, Vigilance and Prevention of Corruption — Scams — 2G Spectrum Scam Case — CBI investigation — Administrative issues: Substitution of officer in investigation team, permitted as officer concerned (1st Level Supervisory Officer in one case and IInd Level in another) was required to be reverted back to parent cadre. [Centre For PIL v. Union of India, [(2017) 3 SCC 566]

Service Law — Appointment: Appointment by judicial direction is not permissible. State Administrative Tribunal direction, as affirmed by High Court for appointment to posts of LDA, when respondents were not eligible for consideration for appointment, as their turn had not arisen, and before their turn matured, vacancies had already been filled up; therefore, there was no scope for any appointment. Hence, direction for appointment, set aside. [State of W.B. v. Tuhin Sultan Mallick, [(2017) 3 SCC 603]

Service Law — Promotion — Right to promotion — Denial of — What is — Law/Rules/Norms applicable to promotion process: A candidate only has right to be considered in light of existing rules, namely, rules in force on the date on which consideration for promotion takes place and there is no rule of absolute application that vacancies must invariably be filled by law existing on date when they arose. Amendment in Rules expanding feeder posts, in absence of any accrued or vested right to be considered for promotion under any particular rules in force at a particular time does not amount to denial of right to promotion. [State of Tripura v. Nikhil Ranjan Chakraborty, [(2017) 3 SCC 646]

Service Law — Seniority — Determination of seniority — Inter se seniority: Further classification vide administrative instructions/government order for determination of inter se seniority in absence of any basis therefor in the relevant Rules, not permissible. Also, basis of classification also not a truly justifiable basis. [S. Sreedhar Reddy v. State of A.P., [(2017) 3 SCC 681]

Service Law — Transfer of employee: Pursuant to order dt. 23-8-2016, services of workmen were regularised but they were posted at various places depending on available vacancies. It was submitted by workmen that being very low paid employees, it would be difficult to survive with such wages at a place around 300-400 km away from their native places. Hence, appellant directed to look into grievances of workmen and to see whether they could be accommodated at places near their residences. [State of U.P. v. Puran Singh, [(2017) 3 SCC 615]

Service Tax — Services — Retreading of tyres by works contractor — Maintenance and repair service, if can be treated as service under “works contract” for service tax purposes: Component of gross turnover in respect of which assessee has paid sales tax/VAT under State Act as works contractor is excluded from purview of service tax. [Safety Retreading Co. (P) Ltd. v. CCE, [(2017) 3 SCC 640]

Swatantrata Sainik Samman Pension Scheme, 1980 — Cls. 3(b) and 7(b) — Freedom fighters’ pension: Observation of Single Judge of High Court to effect that deceased freedom fighter was absconding for about 26 months which was sufficient to declare him “as remaining underground for more than six months” thereby entitling him to pension, is erroneous. Further held, in absence of any record based evidence duly verified by State Government to establish “jail” or “underground suffering” or “Non-Availability of Record Certificate (NARC)” in form of secondary evidence produced, appellant (deceased freedom fighter’s wife) not entitled to dependant family pension. [Jagdamba Devi v. Union of India, [(2017) 3 SCC 688]

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