2018 SCC Vol. 1 January 7, 2018 Part 1

Civil Procedure Code, 1908 — Or. 18 Rr. 4 & 19 and Or. 26 Rr. 1, 4-A & 16 — Recording of evidence: Plaintiff, an illiterate old lady of age of more than 80 years, hence, prayer was made to examine power-of-attorney holder of plaintiff on her behalf. Appeal was disposed of with directions that: (i) appellant would appear before trial court and lead evidence and get herself examined in support of her case, (ii) on her inability to appear in court due to her old age, she would get herself examined on commission at her residence at her expenses and trial court would, accordingly, appoint any lady lawyer as Local Commissioner in this regard, (iii) examination of all other witnesses, as decided by appellant in this respect, would be conducted in court. [Prasadi Devi v. Nagar Palika Sawai Madhopur, (2018) 1 SCC 120]

Constitution of India — Art. 145 — Constitution of Benches and allocation of cases: Administrative prerogative of Chief Justice of India in this regard, clarified. Chief Justice is Master of Roster and he alone has prerogative to constitute Benches and allocate cases. Said prerogative could not have been exercised by a two-Judge Bench giving direction for constitution of a Bench of five seniormost Judges of Supreme Court to decide present writ petition. Even if imputations are hurled at Chief Justice, said prerogative would not hinge on whim of litigant and Chief Justice can constitute a Bench to decide the matter. By so doing Chief Justice did not become a Judge in his own cause. Said prerogative is also given by Supreme Court Rules, 2013. It is contempt to imply that Chief Justice would assign matter to a Bench which would not pass an adverse order against him. Conduct of petitioner is wholly unethical and nothing but forum hunting. For said unwarranted conduct, petitioner is taking refuge under propositions of law that justice should not only be done but seem to have been done. Such conduct is deprecated. [Kamini Jaiswal v. Union of India, (2018) 1 SCC 156]

Constitution of India — Art. 145 — Constitution of Benches and allocation of cases: Administrative prerogative of Chief Justice of India in this regard, clarified. Chief Justice is Master of Roster and he alone has prerogative to constitute Benches and allocate cases. Any order contrary to present order, held, ineffective and not binding. Therefore, notwithstanding direction by a two-Judge Bench for constitution of a Bench of first five Judges in order of seniority to decide present writ petition, matter should be placed before Chief Justice for constitution of appropriate Bench. Principles of law, precedents and judicial discipline and decorum demands this. Neither a two-Judge Bench nor a three-Judge Bench can allocate matter to themselves or direct composition for constitution of a particular Bench. [Campaign for Judicial Accountability and Reforms v. Union of India, (2018) 1 SCC 196]

Constitution of India — Arts. 16(4), (4-A), (4-B), 341, 342 and 145(3) — Reservation for SC/STs: Issues relating to (a) Creamy layer test of backwardness and (b) 50% reservation ceiling even for carried forward unfilled vacancies, whether applicable to SC/STs, reffered to Constitution Bench under Art. 145(3). [State of Tripura v. Jayanta Chakraborty, (2018) 1 SCC 146]

Criminal Procedure Code, 1973 — Ss. 195(1)(b)(ii) & 340: Commission of forgery in respect of a document produced or given in evidence in a proceeding in any court committed prior to filing of that document before court, hence bar under S. 195(1)(b)(ii) CrPC that no court shall take cognizance of any such offence except on the complaint in writing of the court concerned was not attracted to this case. [Riico Ltd. v. State of Rajasthan, (2018) 1 SCC 79]

Criminal Procedure Code, 1973 — Ss. 302, 256, 249 and 482 — Criminal complaint (relating to a warrant case herein) — Death of complainant during proceedings: Criminal complaint filed by one S pertaining to offences under Ss. 420, 467, 468, 471, 120-B, 201 r/w S. 34 IPC, which was governed by procedure under CrPC for trial of warrant cases by Magistrates, was dismissed by trial Magistrate concerned holding that no prima facie case was made out against accused concerned. Aggrieved thereby, S filed a criminal revision petition before Sessions Judge, but that too stood dismissed. Thereafter, S preferred a criminal miscellaneous petition before High Court. During pendency of that petition, S died. The Supreme Court pondered upon the issue of right of legal heirs of deceased S to continue proceedings. Having regard to: (i) provision under S. 302 CrPC regarding grant of permission to conduct prosecution, (ii) effect of absence of complainant as prescribed in S. 249 CrPC, as well as, considering that under CrPC, (a) in respect of trial of a warrant case, there is no provision for rejection of complaint on death of complainant, and (b) even in case of trial of summons case, it is not mandatory (under S. 256 CrPC) that after death of complainant the complaint is to be rejected, the Supreme Court held that on death of complainant S in this case, High Court did not commit any error in allowing legal heirs of S to prosecute petition pending before it. [Chand Devi Daga v. Manju k. Humatani, (2018) 1 SCC 71]

Education Law — Medical and Dental Colleges — Affiliation/Recognition — Derecognition/Cancellation/Withdrawal of — Establishment of medical college: In this case of breach of conditional letter of permission for admitting MBBS students, Medical Council of India (MCI) directed not to encash bank guarantees of colleges concerned and keep them alive for subsequent academic year. [Glocal Medical College & Super Speciality Hospital & Research Centre v. Union of India, (2018) 1 SCC 188]

Education Law — Medical and Dental Colleges — Affiliation/Recognition — Derecognition/Cancellation/Withdrawal of — Establishment of medical college: In this case of breach of conditional letter of permission for admitting MBBS students for academic year 2016-2017, prayer for a direction to MCI not to encash bank guarantee, allowed. [Medical Council of India v. Prasad Education Trust, (2018) 1 SCC 191]

Education Law — Medical and Dental Colleges — Affiliation/Recognition — Derecognition/Cancellation/Withdrawal of — Establishment of medical college — Breach of conditional letter of permission for admitting MBBS students for academic year 2016-2017 — Effect and relief: Students already admitted for academic year 2016-2017 not to be disturbed. Prayer for renewal of permission for academic year 2017-2018 rejected but bank guarantee not to be encashed. Authorities and MCI directed to consider suitability of college for next academic year, that is, 2018-2019 by conducting inspection, etc. as per law. [Prasad Education Trust v. Union of India, (2018) 1 SCC 192]

Excise — Concession/Exemption/Incentive/Rebate/Subsidy — Noti. No. 20/2007-Ex. dt. 25-4-2007: Pursuant to the Industrial Policy dt. 1-4-2007 for the North-Eastern States, the Central Government issued Noti. No. 20/2007-Ex. dt. 25-4-2007 granting exemption from duties of excise. Vide Finance Act, 2004, the education cess and higher education cess were imposed, which was a surcharge on the excise duty. In relation to the exemption from payment of service tax given vide Noti. No. 41/2007-SCT dt. 6-8-2007, which was in pari material with Noti. dt. 25-4-2007, in the Circular dt. 8-4-2011 it was clarified that the policy intention of the Government was to exempt education cess in addition to service tax. Also, Circular dt. 10-8-2004 clarified that education cess was a part of excise duty. From a reading of the two circulars, it was held, the Government itself had taken the position that where whole of excise duty or service tax is exempted, even the education cess as well as secondary and higher education cess would not be payable and the circulars were binding on the Department. Further, when there was no excise duty payable, as it was exempted, there would not be any education cess as well. Also, when two views are possible, one which favours the assessees has to be adopted. Thus, assessees held, entitled to refund of education cess and higher education cess. [SRD Nutrients (P) Ltd. v. CCE, (2018) 1 SCC 105]

Family Courts Act, 1984 — Ss. 11, 9 and 10 — Conduct of proceedings through videoconferencing: Conduct of proceedings under Family Courts Act, 1984 through videoconferencing upon request of only one party, not permissible. However, only after settlement fails, either upon consent and application of both parties, or, if Family Court finds it appropriate, direction for videoconferencing may be made by Family Court only. It was clarified, that direction for videoconferencing cannot be passed in transfer proceedings. Videoconferencing, in absence of consent of the other party would be contrary to S. 11. Physical presence of both parties in matrimonial proceedings held in camera is essential as it creates environment of trust, confidentiality, privacy and emotional bond. Videoconferencing at the first instance, without consent of both parties, would create a dent in settlement process and affect affirmative rights to dignity, privacy and choice, particularly of women. [Santhini v. Vijaya Venketesh, (2018) 1 SCC 1]

Family Courts Act, 1984 — Ss. 11, 9 and 10: Regarding permissibility of conduct of matrimonial proceedings under 1984 Act through videoconferencing, directions issued by two-Judge Bench of Supreme Court in Krishna Veni Nagam, (2017) 4 SCC 150 on this aspect need reconsideration by a larger Bench. [Santhini v. Vijaya Venketesh, (2018) 1 SCC 62]

Government Grants, Largesse, Public Property and Premises — Mode of allocation — Settlement of a government property by way of a private largesse — Impermissibility of: Settlement of a government property by way of a private largesse, without open advertisement, is completely unfounded in law. [Jaykrishna Industries Ltd. v. State of Maharashtra, (2018) 1 SCC 123]

Land Acquisition Act, 1894 — S. 23 — Compensation — Enhancement of: Acquisition was in pursuant to S. 4(1) Notification of Land Acquisition Act, 1894 in 1992. LAC relied on exemplar of 1988 and granted compensation to Rs 23,500 per hectare. Reference Court declined to grant any enhancement. High Court, taking note of acquisitions of 1992 but exemplar taken of 1988, granted 10% annual increase and thus granted a further amount of Rs 8400 totalling to Rs 32,000 per hectare. Supreme Court, while issuing notice by order dt. 12-8-2016 made it clear that scope of inquiry by Supreme Court would be limited to two aspects, percentage of enhancement and whether it should be on simple or compound basis. It was held, on facts that interests of justice would be served by fixing annual increase on exemplar, by 15% at compounding rate as appellants have not been granted separate compensation for fruit-bearing trees. Order passed by High Court modified. [Madhusudan Kabra v. State of Maharashtra, (2018) 1 SCC 140]

Minimum Wages Act, 1948 — S. 9 r/w S. 5 — Constitution of Committee for revision of minimum wages payable to employees working in private hospitals and other allied institutions: Representation by way of nomination is a well-accepted phenomenon. Thus, person nominated to represent interest of his employer need not necessarily be employer himself but can be employee who is well-versed with working of the organisation and subject, and is competent to represent interest of his employer which is in accordance with S. 9. Such nominee would defend his employer’s interests and not individual interest i.e. he does not participate in his individual capacity but as representative of his employer. [Kerala Private Hospital Assn. v. State of Kerala, (2018) 1 SCC 98]

Motor Vehicles Act, 1988 — Ss. 166, 168 and 173 — Compensation — Permanent partial disability — Estimation of functional disability: When accident resulted in permanent disability to extent of 50% to right arm of 22-year-old appellant trainee in a Merchant Navy Company, award of compensation without considering important heads, held, not proper. [Ankur Kapoor v. Oriental Insurance Co. Ltd., (2018) 1 SCC 136]

Narcotic Drugs and Psychotropic Substances Act, 1985 — S. 20 — Search and seizure: In this cases of alleged recovery of contraband from vehicle driven by appellant-accused, there was reversal of acquittal by High Court, convicting appellant under S. 20, awarding sentence of RI for 20 years and fine of Rs 2,00,000 with default stipulation, while exonerating co-accused. The Supreme Court held that prosecution failed to adduce conclusive and consistent evidence to bring home charge against appellant. View taken by trial court being convincingly reasonable, is acceptable in comparison to one adopted by High Court. High Court in the attendant facts and circumstances, erred in upturning findings recorded by trial court. Hence, impugned judgment and order of High Court is set aside and acquittal of appellant is restored. [Khekh Ram v. State of H.P., (2018) 1 SCC 202]

Penal Code, 1860 — S. 307: In this case of quarrel leading to pistol firing, injuring victim, conviction under S. 307 IPC and S. 25(1-A), Arms Act, reversed by High Court on the ground of infirmities noticed by High Court in prosecution case, which were material. The Supreme Court held that benefit of such infirmities was rightly given to accused by High Court as the reasoning and conclusion of High Court in acquitting accused, just and proper and acquittal was confirmed. [State of Uttarakhand v. Jairnail Singh, (2018) 1 SCC 128]

Penal Code, 1860 — Ss. 325/149 — Accused when held guilty under S. 325 — Imposition of jail sentence and fine on accused: Once accused is held guilty of commission of offence punishable under S. 325 IPC, then imposition of jail sentence and fine on accused is mandatory. In other words, award of punishment would include both i.e. jail sentence and fine. So far as jail sentence is concerned, it may extend up to 7 yrs as per court’s discretion whereas so far as fine amount is concerned, its quantum would also depend upon the court’s discretion. Also, under S. 428 CrPC, period of detention of accused spent in jail as undertrial or as convict will be set off against his total jail sentence once awarded to him in connection with the same offence. [State of U.P. v. Tribhuwan, (2018) 1 SCC 90]

Penal Code, 1860 — Ss. 420, 465, 467, 468 and 471 — Wrongful withdrawal and misappropriation of money from treasury on basis of forged bills: Amount of Rs 6,00,000 was embezzled. Conviction of appellant-accused and two others under Ss. 420, 465, 467, 468 & 471 IPC and Ss. 13(1)(c), (d) and 13(2), Prevention of Corruption Act, 1988, was upheld by High Court. As there was sufficient material on record to show that appellant was guilty. conviction confirmed. [Naresh Chaubey v. CBI, (2018) 1 SCC 142]

Service Law — Appointment — Cancellation/Refusal of: Cancellation of appointment made based on mistake of fact, upon verification of facts, is proper. [Amol v. State of Maharashtra, (2018) 1 SCC 134]

Service Law — Promotion — Zone of consideration — Sub-classification within a class — Restriction imposed on basis of educational qualification for participating in Limited Departmental Competitive Examination (LDCE) for promotion of Forest Guard to post of Forester: There can be classification based on educational qualifications if so warranted by circumstances. However, in instant case based on educational qualifications, a class within class was created violating guarantee of equality by restricting participation in LDCE only to graduates. Merit of 25% cannot be prejudged by sub-classification since it violates equality and equal opportunity guarantees. Forest Guards, irrespective of educational qualifications, having formed one class for purpose of participation in LDCE, a further classification between graduates and non-graduates for participating in LDCE unreasonable. It is case of equals being treated unequally. R. 7(2) of Recruitment Rules to extent that it imposes requirement of being graduate declared unconstitutional. [Maharashtra Forest Guards & Foresters Union v. State of Maharashtra, (2018) 1 SCC 149]

Trusts Act, 1882 — S. 91 — Vendee under agreement to sell — Proper remedy of such vendee in case vendor transfers property subsequently: Suit was filed by appellant-plaintiff vendee under agreement to sell dt. 24-4-1980 against R-1, R-2 and R-3 inter alia for declaration that transfer of suit land made by R-1, R-2 and R-3 in favour of R-4 was null and void and not binding on appellant and for issuance of mandatory injunction against R-1, R-2 and R-3 directing them to transfer suit land in favour of appellant. Appellant had no title to suit land but based his claim on agreement to sell dt. 24-4-1980 to purchase suit land which he failed to prove. Thus, it was held that appellant had no prima facie case in his favour to file suit nor had any locus to file suit in relation to suit land once agreement was held not proved. Proper remedy for appellant in such circumstances was to file civil suit for specific performance immediately after execution of agreement in 1980 or/and within 3 yrs from date of execution. Suit filed almost after 12 yrs from date of agreement for declaration and mandatory injunction was thus, misconceived and barred by limitation. Besides, since alleged agreement itself was not held proved, no suit for claiming any relief in relation to suit land could be filed by appellant. Moreover, since deceased had two sons and one daughter (R-1, R-2 and R-3), there was no reason for him to execute will in appellant’s favour. [Suresh Kumar v. Anil Kakaria, (2018) 1 SCC 86]

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