2018 SCC Vol. 3 April 21, 2018 Part 5

Specific Relief Act, 1963 — S. 16(c) — Specific performance of contract: In this case suit was filed by plaintiff for specific performance of agreement to sell, claiming that advance payment had been given by him towards sale price of land to defendants and that balance consideration was not paid since defendants were obliged to obtain a certain “no-objection certificate” from appropriate authority and execute sale deed. It was held by Supreme Court that plaintiff did not have necessary funds available with him to pay balance consideration. Further, there was nothing to indicate nature of “no-objection certificate” that vendors were required to obtain and who were authorities from whom “no-objection certificate” was required, nor was there any indication of purpose for which “no-objection certificate” was required. In view thereof, dismissal of suit of plaintiff by trial court, upheld. [Kalawati v. Rakesh Kumar, (2018) 3 SCC 658]

Constitution of India — Art. 32 — Court-monitored investigation/constitution of SIT by Supreme Court to reinvestigate cases pertaining to two FIRs: In this case of murder of husband, wife and their two children, accused persons were acquitted. Earlier, petitioners had filed a writ petition before Supreme Court, inter alia, seeking for reinvestigation of cases pertaining to two FIRs (Nos. 221/2001 and 228/2002), regarding such murders, by CBI, which was allowed on 28-10-2013. However, thereafter petitioners prayed for withdrawal of aforementioned order. Accordingly, order directing investigation by CBI was withdrawn by Supreme Court on 5-9-2014. In present case, petitioners prayed for Court-monitored investigation/constitution of SIT by Supreme Court to reinvestigate cases pertaining to two FIRs, under Art. 32 — Said prayer was granted, in relation to one FIR considering conduct of bad investigation, threats to family during investigation and investigating officers in close nexus with accused persons. [Sunita Devi v. Union of India, (2018) 3 SCC 664]

Armed Forces — Disability Pension — Essentials for — Officers voluntarily retiring prior to 1-1-2006 — Entitlement to: Para 3 of Government Order dt. 19-5-2017 granting benefit of disability pension to pre-2006 retirees subject to conditions that: (i) disability was accepted as attributable to or aggravated by military service; (ii) they had foregone lump sum compensation in lieu of that disability; and (iii) Armed Forces personnel continued to suffer from same disability which was assessed at 20% or more on 19-5-2017. It was held on facts that appellant was entitled to disability pension inasmuch as in opinion of Medical Board dt. 31-3-2004 primary hypertension of appellant was aggravated by military service and his disability which was found to be permanent in nature was assessed at 30% and he had foregone lump sum compensation in lieu of disability. Respondents were directed to process claim of appellant as per Government Order dt. 19-5-2017. However, liberty also granted to respondents to discontinue claim from any future date where on basis of medical report it was found that disability had gone below 20%. [R.K. Rai v. Union of India, (2018) 3 SCC 670]

Civil Procedure Code, 1908 — S. 100 — Second appeal: When there is no perversity on current findings of fact, interference is not permissible. [Dalip Singh v. Bhupinder Kaur, (2018) 3 SCC 677]

Service Law — Regularisation — Non-entitlement: Question of regularisation of daily wager appointed contrary to law does not arise. [Upendra Singh v. State of Bihar, (2018) 3 SCC 680]

Motor Vehicles Act, 1988 — Ss. 166, 168 and 173 — Temporary disability — Compensation to victims of accident — Principles summed up: One aspect relates to impairment of person’s earning capacity while the other relates to pain and suffering due to loss of enjoyment of life caused by the disability. When victim suffers from temporary or permanent disability, efforts must be made to award adequate compensation not only for physical injury but also for: (i) pain, suffering and trauma caused due to accident; (ii) loss of earnings; (iii) and victim’s inability to lead normal life and enjoy amenities. [ICICI Lombard General Insurance Co. Ltd. v. Ajay Kumar Mohanty, (2018) 3 SCC 686]

Excise — Classification of goods — Essential components/parts of “boiler” — Classification of, under Sub-Heading 8402.10: The components of the boilers cleared as parts but essential to put into operation the boilers, would be classifiable under Sub-Heading 8402.10 and not under Sub-Heading 8402.90. [CCE v. BHEL, (2018) 3 SCC 693]

Motor Vehicles Act, 1988 — S. 149 and S. 10(2)(d) r/w Ss. 2(21), 2(15), 2(48) (as amended by Amendment Act 54 of 1994) — Driver licensed to drive light motor vehicle: Even in absence of a specific authorisation to drive a transport vehicle, such driver can drive light goods/transport vehicle as per law laid down in Mukund, (2017) 14 SCC 663. Liability jointly and severally fastened on insurer, in addition to owner and driver. [Jagdish Kumar Sood v. United India Insurance Co. Ltd., (2018) 3 SCC 697]

Constitution of India — Art. 226 — Res judicata or issue estoppel — Misapplication of rule of — Findings given by court without jurisdiction: Despite a specific jurisdictional issue being present, on which it was found that court concerned did not have jurisdiction, yet that court went on to give a finding on merits. Such finding on merits, held, cannot be treated as res judicata, as findings on merits were purely auxiliary or non-foundational to the main (only jurisdictional) issue in earlier order. [Municipal Corpn. of Greater Mumbai v. Pankaj Arora, (2018) 3 SCC 699]

Service Law — Recruitment Process — Examination — Evaluation of comparative merit through marks — Distortion caused by examination variability (or subjective variability) and heterogeneous subjects: Method of scaling can be applied only to optional subjects and not to compulsory subjects. In case of compulsory subjects, to deal with examination variability or subjective variability, method of moderation is applied. [U.P. Public Service Commission v. Manoj Kumar Yadav, (2018) 3 SCC 706]

Contract and Specific Relief — Construction/Interpretation of Contract — Interpretation put by parties on contract by their course of dealing: In this case, the original PPA dt. 31-3-1997, provided for naphtha to be used as the primary fuel for generation of power and gas was an alternate fuel and in March 2000, the Government, due to the cost factor, replaced gas as the primary fuel, and naphtha was made an alternate fuel. The PPA was then amended on 18-6-2003 making gas the primary fuel and then by a third amended to PPA on 2-5-2007 the definition of “fuel” was confined to “natural gas only”. Respondent/power generator, facing shortage of supply of natural gas, sought to use Regasified Liquefied Natural Gas (RLNG), a variant of natural gas, but being significantly costlier than natural gas. It was held that the intention of the parties under the agreement, as amended from time to time, was to generate power from fuel reasonably priced, so as to ultimately make available power to the consumers at reasonable rates. The choice of fuel as natural gas only was, therefore, to be understood as being confined to natural gas only in its natural form. Further the parties by their conduct and dealings right up to the institution of proceedings by the respondent before the Commission were clear in their understanding that RLNG was not to be included within the term “natural gas” under the PPA. Sporadic use of RLNG on one or two occasions under pressing circumstances, after due orders under S. 11 of the Electricity Act, 2003, for short durations, cannot make the exception the norm to contend either that RLNG was included in the term “fuel” or that the appellant had agreed to its use. The question of waiver by the appellant or application of the principle of approbate and reprobate does not arise in the facts of the case. Therefore, the term “fuel” as used in the PPA meant natural gas only in its natural form, and did not include RLNG. [Transmission Corpn of Andhra Pradesh Ltd. v. GMR Vemagiri Power Generation Ltd. (2018) 3 SCC 716]

Government Grants, Largesse, Public Property and Public Premises — Regularisation of unauthorised occupation/encroached upon land in the absence of regulations — Permissibility of: Though the Orissa Industrial Infrastructure Development Corporation Act, 1980, provided for the framing of regulations, inter alia, for disposal of land, buildings and amenities, no such regulations were framed and the Corporation approved the proposal to regularise land of the unauthorised occupant/R-7 on payment of Rs 7,89,350. It was held that the framing of regulations was not sine qua non for land being dealt with by the Corporation and the appellant Corporation had the power to deal with the land, to develop and promote the object of the Act even in the absence of regulations. [Odisha Industrial Infrastructure Development Corpn. Ltd. v. Pitabasa Mishra, (2018) 3 SCC 732]

Ports Act, 1908 — S. 5: Notification dt. 18-1-2016, expanding the port limits of Hazira Port, valid. Objections of the appellants claiming to have spent huge monies on reclaimed land being affected by such expansion, rejected in the absence of appellants being able to establish any ownership rights over reclaimed land and in the absence of any substantiation regarding mala fides or lack of public interest in issuance of abovesaid notification. [Essar Bulk Terminal Ltd. v. State of Gujarat, (2018) 3 SCC 750]

CENVAT Credit Rules, 2004 — R. 2(l) as applicable prior to 1-4-2004 — CENVAT Credit in respect of tax paid in relation to expenditure incurred for input service of transportation of goods: CENVAT Credit can be availed on tax paid for transportation service for transportation of goods from place of manufacture either up to place of depot or directly up to customer. Said interpretation gets support from the Amendment Noti. dt. 1-3-2008, by which expression “from the place of removal” is substituted by “up to place of removal”. It was further clarified that this adjudication is in respect of meaning of first part of definition of “input service” relatable to expression “means” and not second part relatable to expression “includes”. [CCE v. Vasavadatta Cements Ltd., (2018) 3 SCC 769]

Labour Law — Regularisation — Entitlement to benefits of — Date of commencement — “Badali Kamdars” appointed as daily wagers in respondent Corporation — Benefit of timescale: In terms of Cl. 20 of settlement dt. 21-12-1989 arrived at between respondent Corporation and Union of workers, cases of “badali kamdars” considered and those found suitable were absorbed as permanent employees on post of Conductor and given timescale on completion of 180 days in cadre. Appellants claimed benefit of timescale on completion of 180 days of service from date of their initial appointment as “badali kamdars” and not from date of absorption as permanent employees. It was held that settlement once arrived at is binding on both employers and employees. Respondent Corporation had granted benefit of absorption and timescale in terms of Cl. 20 of the settlement. Appellants cannot claim benefit from date of their initial appointment wherefor there was neither any factual nor legal foundation. Besides, neither binding nature of settlement dt. 21-12-1989 nor status of “badali workers” was challenged in instant proceedings. [Bhupendra Kumar Chimanbhai Kachiya Patel v. Gujarat SRTC, (2018) 3 SCC 775]

Finance Act, 1994 — S. 67 — Notis. No. 15/2004-ST dt. 10-9-2004 and No. 4/2005-ST dt. 1-3-2005 — Goods/Material supplied by service recipient while procuring taxable service of construction: In terms of S. 67, unless an amount is charged by the service provider to the service recipient, it does not enter into the equation for determining the value on which service tax is payable. Further, the gross amount charged by the service provider has to be for the service provided and any amount charged which has no nexus with the taxable service and is not a consideration for the service provided does not become part of the value which is taxable under S. 67. Further, the meaning of the expression “the gross amount charged by the service provider for such service provided or to be provided by him”, would lead to the obvious conclusion that the value of goods/material that is provided by the service recipient free of charge is not to be included while arriving at the “gross amount” simply, because no price is charged by the assessee/service provider from the service recipient in respect of such goods/materials. [CST v. Bhayana Builders (P) Ltd., (2018) 3 SCC 782]

Education Law — Medical and Dental Colleges — National Eligibility-cum-Entrance Test (NEET) — Transparency in Admission Procedure — Documents relating to identity during registration: CBSE directed to upload necessary information on its website that Aadhaar is not mandatory and alternative identification documents such as ration card, passport, voter ID, driving licence or bank account could also be provided. [K.S. Puttaswamy v. Union of India, (2018) 3 SCC 797]

Motor Vehicles Act, 1988 — Ss. 149(2), 165, 166 and 168 — Insurer when may be absolved of its liability under S. 149(2) re fake/invalid/expired, etc. licence: Principles laid down in Swaran Singh, (2004) 3 SCC 297, reiterated for determining that when insurer may be absolved of its liability under S. 149(2) re fake/invalid/expired, etc. licence. [Singh Ram v. Nirmala, (2018) 3 SCC 800]

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