2017 SCC Vol. 9 October 28, 2017 Part 2

Advocates — Government Law Officers/Counsel/Pleader — Cancellation of tenure-based appointment — Tenure expiring during pendency of appeal — Relief: In this case there was cancellation of appointments of respondents who were working as Additional GP/AGP/APP under Rule 30(5), Maharashtra Law Officers (Appointments, Conditions of Service and Remuneration) Rules, 1984 vide order dt. 28-8-2015, which was quashed by High Court. However, in appeal filed thereagainst, Supreme Court staying operation of impugned order consequent to which cancellation order dt. 28-8-2015 continuing to remain in operation and during pendency of appeal, term of respondents on their respective posts expiring on different dates. The Supreme Court while considering nature of controversy, subsequent events and resulting consequences, modified the cancellation order dt. 28-8-2015 and directed the same to be treated as having been passed under R. 30(6) and one month’s retainer in lieu of notice period paid to each respondent. [State of Maharashtra v. Kishor M. Gadhave Patil, (2017) 9 SCC 312]

Central Excise Act, 1944 — S. 9(1)(b) r/w R. 56 of the Central Excise Rules, 1944 — Omission of R. 56 w.e.f. 20-5-1994 — Effect of, on pending proceedings for evasion of duty: In this case, a complaint was filed on 4-8-1987, by the Revenue against the respondent-accused for evasion on account of the respondent having taken credit without following the procedure under R. 56-A but the said Rule was, on 20-5-1994, was omitted by a notification. The trial Magistrate, despite the omission, vide order dt. 22-3-2013, framed charge against the accused for the offence punishable under S. 9. The Supreme Court held that the charge against the respondent was of evasion of duty, the ingredient of the offence being evasion. Thus, the omission of a procedural rule for availing the credit could not in any manner affect the said charge. Further, the prosecution could not be deprived of opportunity to prove evasion which by itself was an offence. [Chandpaklal Ramanlal Shah v. Reliance Industries Ltd., (2017) 9 SCC 309]

Kerala Education Rules, 1959 — Rr. 2, 2-A, Ch. V and R. 3, Ch. I — Power of Government to relax Rules: If right to education up to age of 14 yrs, which is a fundamental right, is to be made meaningful, efforts must be made to open upper primary schools in such manner so that no child has to walk 3 km or more only to attend school. Government had authority and jurisdiction to grant such relaxation in terms of R. 3. Besides, no other school was at a distance of less than 3 km from appellant School. Hence, upgradation of appellant School from junior primary school to upper primary school without giving notice to schools in vicinity to raise objection with regard to upgradation, permissible. [Palathingal M.L.P. School v. Sethumadhavan P.K., (2017) 9 SCC 306]

Kerala Forest Act, 1961 (4 of 1962) — S. 61-A — Seizure of sandalwood from jeep — Confiscation of both under S. 61-A — Validity of: High Court, in revision, quashed confiscation order, relying upon its decision in Bhargavan, 1993 SCC OnLine Ker 461. The Supreme Court held that findings of fact recorded by courts below were, firstly, that seized goods were being brought from another State by owner of jeep, and secondly, that it could not be proved that goods belonged to the State where it was confiscated. In such view of matter, High Court was justified in deciding the issue in light of law laid down in Bhargavan case, rightly quashing confiscation order made under S. 61-A. [State of Kerala v. Jossy Sequeria, (2017) 9 SCC 316]

Motor Vehicles Act, 1939 — S. 68-C — Permit/Permission/Licence — Permit to private operators to ply vehicles on the notified route: In this case, following the ruling in Kanchan, (2006) 2 SCC 413, wherein it was held that the permits granted for the notified route were bad in law and that the State Transport Authority while granting permits on the route in question had mala fide exercised its jurisdiction, it was held that the route had become a notified route pursuant to the Nationalisation Scheme dt. 5-11-1997, and since no private operators could be permitted to operate/ply vehicles on the notified route except as permitted by the Scheme, the respondents could not be permitted to ply the vehicles on the notified route. Further, the respondents who were existing operators could not be shown leniency as the route over which they were plying earlier did not include Dewal to Bijnor. [UP SRTC v. Sandeep Kumar Jain, (2017) 9 SCC 299]

Wealth Tax Act, 1957 — S. 27-A — Appeal to High Court under — Framing of a substantial question of law — Mandatory requirement of: In this case, High Court proceeded to decide the appeals under S. 27-A, without formulating the substantial question(s) of law. The Supreme Court noted that on a comparison of S. 27-A of 1957 Act with S. 100 CPC, it was held, that (i) both sections provide a remedy of appeal to the High Court; (ii) both sections are identically worded and in pari materia; (iii) S. 27-A was enacted by following the principle of “legislation by incorporation” and S. 100 CPC was bodily lifted from CPC and incorporated as S. 27-A in the Act; and (iv) both sections are akin to each other in all respects. Thus, following the ruling in Santosh Hazari, (2001) 3 SCC 179 in respect of S. 100 CPC, wherein it was held that the High Court cannot proceed to hear a second appeal without formulating the substantial question of law involved in the appeal and if it does so it acts illegally and in abnegation or abdication of the duty cast on Court, the matter was remanded to the High Court for deciding the appeals afresh on merits after formulating the substantial questions of law, if any. [Amrinder Singh v. CWT, (2017) 9 SCC 318]

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