2017 SCC Vol. 3 April 21, 2017 Part 5

Kerala liquor ban: Revisiting res extra Commercium & police power: A year ago, the Supreme Court upheld the Kerala Government’s Abkari Policy of 2014-2015 that prohibited the sale and service of alcohol in all public places except bars and restaurants in five-star hotels. The plea that this amounted to an unreasonable classification and thereby violated Article 14 was rejected. While discussing the nature of the rights of people trading in alcohol, the Supreme Court wrongly applied the concept of “res extra commercium” yet again. This article seeks to highlight the consistent error in failing to understand the origin and nature of the Latin phrase res extra commercium and its consequent erroneous application. The article also submits that the plea under Article 14 was rejected without any reasoning. [Kerala liquor ban: Revisiting res extra Commercium & police power by Arvind P. Datar and Rahul Unnikrishnan, (2017) 3 SCC (J-1)]

Anil Divan : A Counsel Nonpareil: An Obituary to Anil Divan, Senior Advocate, Supreme Court of India, who passed away on 20-3-2017. [Anil Divan: A Counsel Nonpareil: An Obituary, (2017) 3 SCC (J-7)]

R.K.P. Shankardass : Gentleman of The Indian Bar: An Obituary to R.K.P. Shankardass, Senior Advocate, Supreme Court of India and an esteemed former member of the SCC Editorial Board, who passed away on 10-3-2017. [R.K.P. Shankardass : Gentleman Of The Indian Bar: An Obituary, (2017) 3 SCC (J-10)]

T.M. Andhyarujina : Servant Of The Constitution: An Obituary to T.M. Andhyarujina, Senior Advocate, Supreme Court of India, former Solicitor General of India, Advocate General of Maharashtra and an esteemed member of the SCC Editorial Board, who passed away on 28-3-2017.[T.M. Andhyarujina : Servant of the Constitution, An Obituary, (2017) 3 SCC (J-12)]

M.N. Krishnamani : Cardinal Of The Bar: An obituary to Dr M.N. Krishnamani, Padam Shri, Senior Advocate, Supreme Court of India, Former President, SCBA, who passed away on 15-2-2017. [M.N. Krishnamani : Cardinal Of The Bar, An Obituary, (2017) 3 SCC (J-14)]

Associations, Societies and Clubs — Body discharging public functions but not amounting to “State” — BCCI — Reform in structure and organisation of BCCI as per directions of Court: As per order in Cricket Assn. of Bihar, (2017) 2 SCC 333, replacement of office-bearers of BCCI with Committee of Administrators, directed and pursuant to directions of Supreme Court, Amicus Curiae suggested names of members of Committee of Administrators in sealed cover, hence, pending deliberations on names suggested, documents to be kept in sealed cover and CEO who is looking after functioning of BCCI directed to continue to do as an interim measure. [BCCI v. Cricket Assn. of Bihar, (2017) 3 SCC 696]

Civil Procedure Code, 1908 — Ss. 33, 2(2), 100, Or. 7 Rr. 1(g), 7, 1(e) & 3, Or. 6 Rr. 1 & 2, Or. 14 Rr. 2 & 3, Or. 20 Rr. 5, 6 & 9 and Or. 1 Rr. 3, 10(2) & 9: Judgment and decree granting relief with respect to property other than that described in plaint is unsustainable, more so when that property admittedly stood in the name of another person, who was not party to suit nor was any relief claimed against him. [Arulmigu Chokkanatha Swamy Koil Trust v. Chandran, (2017) 3 SCC 702]

Consumer Protection — Consumer/Consumer Dispute/Locus Standi — Generally: A trust is not a person under S. 2(1)(m) of Consumer Protection Act, 1986. Hence, it is not a consumer within the meaning of S. 2(1)(d) of that Act. Consequently, a trust cannot be a complainant and cannot file a consumer dispute under the provisions of Consumer Protection Act. [Pratibha Pratisthan v. Canara Bank, (2017) 3 SCC 712]

Constitution of India — Art. 129 — Contempt of Supreme Court — Power and jurisdiction — Exercise of, for securing presence of contemnor: Due to failure of a sitting Judge of Calcutta High Court to appear before Supreme Court even after service of notice in suo motu proceedings, in absence of any alternative mode, bailable warrant to be served by Director General of Police, directed. [C.S. Karnan, In Re, (2017) 3 SCC 715]

Criminal Procedure Code, 1973 — Ss. 235(2) and 354(3) — Death penalty — Delhi Gang Rape case of December 2012: As non-consideration of aggravating and mitigating circumstances of each accused before awarding death penalty resulting in violation of S. 235(2) CrPC alleged by accused while imposition of death penalty on all accused, Supreme Court ensured compliance with S. 235(2) CrPC by granting opportunity to accused to adduce mitigating circumstances. Consequently, directions issued to authorities concerned to facilitate convicted accused in submitting their mitigating circumstances in the form of affidavit and place it before Supreme Court. As affidavit submitted did not contain certain material particulars, opportunity granted to file further affidavit. Necessity of Jail Authorities to file report on conduct of accused facing death penalty while in custody, also emphasized. [Mukesh v. State (NCT of Delhi), (2017) 3 SCC 717]

Family and Personal Laws — Guardians and Wards — Custody of Child/Minor — Welfare of child prime consideration: Girl aged 15 yrs, when intellectually and emotionally mature enough to understand and decide whose custody (mother or father) would be in her best interest, her preference should be given due weight. Court should desist from passing order for custody contrary to her will which may give rise to tormenting and disturbing experience in her mind. [Jitender Arora v. Sukriti Arora, (2017) 3 SCC 726]

Administrative Tribunals Act, 1985 — Ss. 2(a) and 3(q) — Inapplicability to members of Armed Forces — Member of General Reserve Engineer Force (GREF) of Border Roads Organisation: 1985 Act does not apply to any member of Armed Forces. Thus, High Court was justified in holding that appellant, member of GREF which is an integral part of Armed Forces within meaning of Art. 33 of the Constitution could not have invoked jurisdiction of CAT. In absence of lack of inherent jurisdiction to deal with issue, judgment rendered by CAT in appellant’s favour is a nullity having no existence in law. It is ultra vires powers of court passing decree hence, is void and not merely voidable decree. [Mohd. Ansari v. Union of India, (2017) 3 SCC 740]

Constitution of India — Arts. 163 & 189 and Arts. 74 & 100 — Discretionary power of Governor to appoint Chief Minister (CM), who may then form Government: To determine whether leader of post-poll alliance appointed as CM and invited by Governor to form State Government enjoyed support of requisite MLAs, directions for immediate floor test issued and date for the same also fixed. Election Commission directed to complete necessary formalities for holding floor test. [Chandrakant Kavlekar v. Union of India, (2017) 3 SCC 758]

Penal Code, 1860 — Ss. 302/120-B, 364/120-B and 201/120-B — Murder trial — Criminal conspiracy leading to abduction and murder — Circumstantial evidence: In this case of criminal conspiracy leading to abduction and murder, as overall circumstances and recoveries made, establishing guilt of appellant-Accused, their conviction under Ss. 302/120-B, 364/120-B and 201/120-B IPC, confirmed on the basis of circumstantial evidence. [Kishore Bhadke v. State of Maharashtra, (2017) 3 SCC 760]

Penal Code, 1860 — Ss. 63 to 65 — Uphaar Cinema case: Substitution of sentence by fine, not provided for in IPC. [Assn. of Victims of Uphaar Tragedy v. Sushil Ansal, (2017) 3 SCC 788]

Motor Vehicles Act, 1988 — Ss. 166 and 168 — Compensation — Heads of compensation — Loss of consortium to spouse — Scope and significance of: Consortium is right of spouse to company, care, help, comfort, guidance, society, solace, affection and sexual relations with his/her mate. Even children of deceased are entitled to award of compensation for loss of love, care and guidance. This emotional aspect has nothing to do with expected lifespan. [Bhogireddi Varalakshmi v. Mani Muthupandi, (2017) 3 SCC 802]

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