2018 SCC Vol. 3 April 7, 2018 Part 3

Arbitration and Conciliation Act, 1996 — S. 11 — Appointment of arbitrator/reference of dispute for arbitration: If the party which executes discharge agreement/discharge voucher, alleges that the execution of such discharge agreement or voucher was on account of fraud/coercion/undue influence practised by the other party but is not able to establish such a claim or appears to be lacking in credibility, then it is not open to the courts to refer the dispute to arbitration at all. [ONGC Mangalore Petrochemicals Ltd. v. ANS Constructions Ltd., [(2018) 3 SCC 373]

Civil Procedure Code, 1908 — S. 100 & Or. 41 R. 31 — Second appeal/Letters patent appeal — Essential ingredients of judgment in: There has to be: (i) factual narration of case as set up by parties; (ii) findings of two lower courts as to how they dealt with issues arising in their respective jurisdiction; (iii) arguments advanced by parties in light of applicable legal principles; (iv) discussion, appreciation, reasons and categorical findings on issues as to why findings of two lower courts be upheld or reversed; (v) application of judicial mind; and (vi) passing of reasoned order as parties must know as to why one of them won and other lost. In absence of these principles, exercise of power is contrary to Or. 41 R. 31. [G. Saraswathi v. Rathinammal, (2018) 3 SCC 340]

Constitution of India — Arts. 19(1)(g), 6, 32, 142, 47, 245 and 246 Sch. VI List I Entry 23 List II Entries 13 & 51: Regarding inapplicability of ban on liquor vends on National Highway and State Highways, to licensed establishments within municipal areas, power vests with State Government to determine whether particular area falls within municipal area. Relevant factors to be considered by State Governments while determining municipal area, discussed. Liberty also granted to individual licensees to approach State Government concerned for decision. [State of T.N. v. K. Balu, (2018) 3 SCC 336]

Criminal Procedure Code, 1973 — S. 228 — Charges to be framed by Judge on being of opinion that prima facie case of commission of offence by accused is made out, considering facts and circumstances of each case as a whole: A court while framing charges under Section 228 CrPC should apply the prima facie standard. Although the application of this standard depends on facts and circumstance in each case, a prima facie case against the accused is said to be made out when the probative value of the evidence on all the essential elements in the charge taken as a whole is such that it is sufficient to induce the court to believe in the existence of the facts pertaining to such essential elements or to consider its existence so probable that a prudent man ought to act upon the supposition that those facts existed or did happen. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. [Mauvin Godinho v. State of Goa, (2018) 3 SCC 358]

Education Law — Employment and Service matters re Educational Institutions — Appointment and Recruitment — Appointment of Lecturers — Eligibility: 2009 Regulations of UGC (Minimum Standards and Procedure) are prospective in nature and would not affect qualifications granted by any institution or university prior to its enforcement. However, petitioners’ eligibility would be required to be adjudged by taking into consideration 2009 Regulations of UGC (Minimum Qualifications for Appointment) as well since advertisement and selection of Guest Lecturers was conducted in 2012 after enforcement of both Regulations. 2009 Regulations of UGC (Minimum Qualifications for Appointment) provide that NET qualification is now minimum qualification for appointment of Lecturer and exemption granted to MPhil degree-holders has been withdrawn and exemption is allowed only to those PhD degree-holders who have obtained the PhD degree in accordance with 2009 Regulations, namely, the 2009 Regulations of UGC (Minimum Standards and Procedure). [State of M.P. v. Manoj Sharma, (2018) 3 SCC 329]

Hindu Succession Act, 1956 — S. 6 (as amended w.e.f. 9-9-2005 by Amendment Act 39 of 2005): Right of daughter born before enactment of HS Act, 1956, in joint Hindu family property governed by Mitakshara law and right under unamended and amended S. 6 of HS Act, explained in detail. [Danamma v. Amar, (2018) 3 SCC 343]

Motor Vehicles Act, 1988 — Ss. 166 and 168: In case of persons parking vehicle in middle of National Highway in a negligent manner, without indicator or parking lights, persons dashing against such vehicle not to be held liable for contributory negligence. [Archit Saini v. Oriental Insurance Co. Ltd., (2018) 3 SCC 365]

Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 — S. 24(2): Question regarding lapsing of acquisition proceedings in cases where compensation has not been “paid” within the specified period, referred to larger bench. Said five-Judge Bench will consider all the aspects including the correctness of the decision rendered in Pune Municipal Corpn., (2014) 3 SCC 183 and the other judgments following the said decision as well as the judgment rendered in Indore Development Authority, (2018) 3 SCC 412. [Indore Development Authority v. Shyam Verma, (2018) 3 SCC 405]

Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 — Ss. 24(2) and 80 — Lapse of acquisition proceedings under S. 24(2) where award was made 5 yrs or more prior to commencement of 2013 Act and compensation has not been paid: If compensation was made unconditionally available but landowner declined it and resultantly Collector deposited it in treasury (and not in court), acquisition would not lapse under S. 24(2) of 2013 Act in such a situation. Further held, Pune Municipal Corpn., (2014) 3 SCC 183 is per incuriam. [Indore Development Authority v. Shailendra, (2018) 3 SCC 412]

Service Law — Retirement/Superannuation — Retiral benefits — Deductions from: When study leave was granted with full pay to IAF Officer in terms of Army Instructions 13/78 with condition to serve for specified period after return from leave and premature retirement was taken prior to completion of that period, he would be liable to deduction of salary and allowances he received during period of study leave from his post-retirement dues. [Ashwini Kumar Handa v. Union of India, (2018) 3 SCC 322]

Service Law — Seniority — Determination of — Recruits of same batch — Fixation of order of seniority between petitioners and R-4 — Professors in CTVS at AIIMS: Experts are co-opted to ensure that Selection Committee is broadbased; selection is objective; and experience and knowledge of experts drawn from outside provides valuable input in ultimate decision. In instant case, policy adopted in 1997 indicated that final selection may be made on basis of grading given by members of Selection Committee and technical experts and in case of tie decision vested with Chairperson after discussion with other members of Selection Committee. However, that does not mean that only tie can be resolved by Chairperson and in all other cases Committee is obliged to make selection on mathematical summation of grades. Selection Committee requires to act objectively and is required to give due credence to view of experts but while doing so it must have due regard to all relevant aspects bearing on interest of institution and must assess credentials of candidates including their service profiles. Selection Committee constituted in 2005 for recruitment of Additional Professors duly considered relevant matters and hence rankings by virtue of which R-4 was placed senior to petitioners cannot be termed as breach of policy decision of 1997. Expressions of opinion in favour of first petitioner in departmental processes cannot furnish legal ground to unsettle rankings holding field for over 12 yrs. [Akshya Bisoi v. AIIMS, (2018) 3 SCC 391]

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