2019 SCC Vol. 2 February 28, 2019 Part 3

Arbitration and Conciliation Act, 1996 — S. 34 — Extension of limitation period/Condonation of delay beyond the period prescribed: S. 5 of the Limitation Act, 1963 has no application to an application challenging an arbitral award under S. 34 of the 1996 Act. Further, a plain reading of sub-section (3) along with the proviso to S. 34 shows that the application for setting aside the award on the grounds mentioned in sub-section (2) of S. 34 could be made within three months and the period can only be extended for a further period of thirty days on showing sufficient cause and not thereafter. Further, the use of the words “but not thereafter” in the proviso makes it clear that the extension cannot be beyond thirty days. [Simplex Infrastructure Ltd. v. Union of India, (2019) 2 SCC 455]

Arbitration and Conciliation Act, 1996 — S. 73 — Conciliation — Interest on account of delay in payment of settlement amount: In this case parties entered into a settlement agreement through the intervention of the conciliators in terms of which the respondents GSHL and GSPI agreed to pay a total amount of Rs 1605 crores in Indian currency. During the pendency of the appeal, the respondents deposited an amount of Rs 1610 crores and as a consequence, their entire liability till 10-11-2012 stood discharged. The Supreme Court held, since the parties requested for termination of the proceedings finally and since the outstanding dues had already been cleared there was no legal impediment in deciding the issue of payment of interest and its rate in the appeal finally to give quietus to the litigation.Thus, respondents directed to pay interest on the principal sum of Rs 1610 crores to the appellant@8%p.a. payable from 10-11-2012 i.e. when the entire payment became due. [State Trading Corpn. of India Ltd. v. Global Steel Holding Ltd., (2019) 2 SCC 387]

Armed Forces  — Court Martial  — Summary Court Martial — Natural Justice—Compliance—Necessity—Denial of legal assistance—Effect of: In this case in terms of R. 129, Army Rules, 1954 appellant was entitled to assistance of legal adviser or any other person in summary court martial. Appellant had rendered seven years of service and was pitted against Commanding Officer. Denial of benefit of legal representation which appellant desired at his own expense resulted in violation of principles of natural justice. Consequently, punishment imposed on basis of summary court martial was liable to be set aside. Moreover, appellant was prejudiced inasmuch as he was dismissed from service and sentenced to six months’ imprisonment depriving him of both livelihood and liberty. [Jaswant Singh v. Union of India, (2019) 2 SCC 360]

Constitution of India — Art. 226: Writ petitions filed by R-1 against appellant’s complaint against him, disposed of by High Court with observations detrimental to complaint, not proper. [Joshine Antony v. Barafwala Cold Storage & Agro Processor, (2019) 2 SCC 464]

 Constitution of India — Art. 226—Notice/Summons/Knowledge of Proceedings: Order of disposal of writ petition without issuing notice to some parties is not sustainable. Court is duty-bound to hear all parties by giving them opportunity to place their stand. [Johra v. State of Haryana, (2019) 2 SCC 324]

Constitution of India — Arts. 21 and 14 — Prisoner on death row: A prisoner can be said to be a prisoner on death row when his sentence is beyond judicial scrutiny and would be operative without any intervention from any other authority. However, reiterated, there is no difference between a separate cell and solitary confinement. A convict on death row is entitled to move within the confines of prison like any other convict undergoing rigorous imprisonment and enjoy same rights. Prison Manuals directed to modified accordingly. [Inhuman Conditions in 1382 Prisons, In Re., (2019) 2 SCC 435]

Constitution of India — Arts. 226 and 227—Exercise of power — Setting aside an order as it lacked reasons: In this case, licence of fair price shop allotted to R-1 was cancelled. Appeal was preferred before Commissioner which was dismissed however no reasons were assigned for dismissal. High Court set aside order passed by Commissioner but did not decide dispute on merits or remand for reconsideration. It was held, as order of Commissioner was unreasoned, High Court was justified in setting it aside. Once High Court set aside order it had two options (i) to decide dispute on merits itself, or (ii) remand it for reconsideration. Parties are entitled for decision on merits by Commissioner as appellate authority and then by High Court. Hence, order passed by High Court set aside by remanding to Commissioner for reconsideration. [Meera Mishra v. Satish Kumar, (2019) 2 SCC 375]

Consumer Protection Act, 1986 Ss. 12(1)(c), 13(6) & 2(1)(b) and Or. 1 R. 8 CPC — Maintainability of complaint: In this case various persons booked apartments in housing project of respondent builder. They entered into builder-buyer agreement wherein it was specifically provided that possession would be delivered within three years. This time period expired in 2010 but no possession was handed over. Somewhere in April 2012, respondent builder demanded final instalment connected with delivery of possession. When it was found that work was incomplete, some buyers filed writ petition and it was disposed of with liberty to approach competent authority. Accordingly, detailed representation was made. These buyers challenged order passed on their representation. Meantime, 19 of such buyers approached National Consumer Commission by filing two separate complaints. Commission observed that where large number of consumers involved, complaint has to be filed on behalf of or for the benefit of all persons having community of interest. Complaint filed on behalf of only some of them, held, rightly held to be not maintainable as it did not comply with S. 12(1)(c) r/w S. 13(6). Liberty granted to appellant consumers to approach State Commission on same set of pleadings and evidence after complying with S. 13(6) of the Act and Or. I R. 8 CPC. [Rameshwar Prasad Shrivastava v. Dwarkadhis Projects (P) Ltd., (2019) 2 SCC 417]

Criminal Procedure Code, 1973 — S. 319: As supplementary charge-sheet was ignored by trial court while discharging appellant-accused, there was no bar to proceed against him under S. 319 CrPC based on supplementary charge-sheet, particularly when sufficient material is brought on record against him during course of trial. [Deepu v. State of M.P., (2019) 2 SCC 393]

Criminal Procedure Code, 1973 — S. 482 —Mode of disposal of quashment petition: For proper disposal of quashment petition the Court need to set out factual matrix and then decide petition in accordance with applicable law. [Geeta v. State of U.P., (2019) 2 SCC 321]

Criminal Procedure Code, 1973 — S. 482: As averments and allegations made in the complaint did not disclose any criminality on part of accused and civil dispute was tried to be converted into a criminal dispute, it was held that criminal proceedings were rightly quashed by High Court. [Vinod Natesan v. State of Kerala, (2019) 2 SCC 401]

Criminal Procedure Code, 1973 — S. 482—Mode of proper disposal under: For proper disposal of quashment petition the Court need to set out factual matrix and then decide petition in accordance with applicable law. [Sangeeta Agrawal v. State of U.P., (2019) 2 SCC 336]

Criminal Procedure Code, 1973 — Ss. 156(3), 20, 22 and 482: Power of Executive Magistrate to direct the police to register an FIR on basis of a private complaint lodged before him, not available. If a complaint is filed before an Executive Magistrate regarding an issue over which he has administrative jurisdiction, and he proceeds to hold an administrative inquiry, he may lodge an FIR himself in the matter. In such a case, entirely different considerations would arise. [Naman Singh v. State of U.P., (2019) 2 SCC 344]

Customs — Valuation — Enhancement of assessable value of imported goods by Revenue: Normally, the assessing officer is supposed to act on the basis of price which is actually paid and treat the same as assessable value/transaction value of the goods, however, as per R. 4(2), the transaction value mentioned in the bills of entry can be discarded in case it is found that there are any imports of identical goods or similar goods at a higher price at around the same time or if the buyers and sellers are related to each other. Further, in order to invoke such a provision it is incumbent upon the assessing officer to give reasons as to why the transaction value declared in the bills of entry was being rejected; to establish that the price is not the sole consideration; and to give the reasons supported by material on the basis of which the assessing officer arrives at his own assessable value. [CCE v. Sanjivani Non-Ferrous Trading (P) Ltd., (2019) 2 SCC 378]

Government Grants, Largesse, Public Property and Public Premises — Illegal/Unauthorised Occupation/Encroachment of Government Land and Eviction/Dispossession therefrom and Demolition: Proper remedy for eviction proceedings under Public Premises (Eviction of Unauthorised Occupation) Act, 1971 is to file suit for eviction. [Western Coalfieds Ltd. v. Ballarpur Collieries Co., (2019) 2 SCC 327]

Government Grants, Largesse, Public Property and Public Premises — Illegal/Unauthorised Occupation/Encroachment of Government Land and Eviction/Dispossession therefrom and Demolition: As possession of appellant of municipal land was not proved to be lawful, refusal to execute sale deed in favour of appellant by Municipality, held, justified. Once possession is unlawful, such possessor liable to be evicted.Considering factual aspects of case, Supreme Court itself fixed quantum of damages to be paid by unauthorised possessor. [Masroor Ahmad Khan v. State of Uttarakhand, (2019) 2 SCC 397]

Kerala Education Rules, 1959 — R. 4 — Newly sanctioned post of Higher Secondary School Teacher (Economics) — Whether to be allocated as per cadre strength or to be filled by transfer: In terms of R. 4(2) every vacancy of Higher Secondary School Teacher was first required to be filled by transfer of Higher Secondary School Teacher (Junior) in subject concerned which served interests of School, students and teachers already serving in the Institution. Direct recruitment was to be resorted to only when qualified Junior Lecturers in subject concerned were unavailable. It was further held that plain reading of R. 4(2) clearly indicated that for apportioning vacancy, cadre strength was immaterial. Said interpretation is further reinforced by reading R. 4(3) Note (i) in contradiction to R. 4(2)(ii) which make it clear that for appointment of Higher Secondary School Teacher vacancy shall be apportioned whereas for appointment of Higher Secondary School Teacher (Junior), “total posts” are to be apportioned on basis of cadre strength. Management directed to appoint respondent who was working as Higher Secondary School Assistant in the Institution. [V.K. Girija v. Reshma Parayil, (2019) 2 SCC 347]

Labour Law — Labour Court/Industrial Tribunal — Recall of ex parte award — Jurisdiction of Tribunal: Jurisdiction of Tribunal to render an ex parte award is conditional upon fulfilment of the prescribed requirements. If there is no sufficient cause for the absence of a party Tribunal undoubtedly has jurisdiction to proceed ex parte but if there was sufficient cause shown which prevented a party from appearing, then Tribunal will have had no jurisdiction to proceed and consequently, it must necessarily have power to set aside the ex parte award. In other words, there is power to proceed ex parte, but this power is subject to the fulfilment of the prescribed conditions. The power to proceed ex parte carries with it the power to enquire whether or not there was sufficient cause for the absence of a party at the hearing. [Mahabir Prosad Choudhary v. Octavius Tea & Industries Ltd., (2019) 2 SCC 476]

Land Acquisition Act, 1894 — S. 23—Market value—If correctly fixed: In this case, Reference Court, enhanced compensation from Rs 20,200 per acre to Rs 8,40,000 per acre (Rs 21,000 per gunta), it was held that there was no infirmity in order passed by High Court partly allowing appeal of appellant to reduce it to Rs 4,10,000 per acre (Rs 10,250 per gunta). [LAO v. Mallappa, (2019) 2 SCC 373]

Land Acquisition Act, 1894 — S. 23—Market value—Matters to be considered: In this case, from Rs 21,000 per gunta fixed by Reference Court, High Court fixed market rate at Rs 14,500 per gunta and deducting 30% towards development charges fixed at Rs 10,250. LAO found acquired land suitable for construction, situated in well-developed city area surrounded by several big factories, industrial estate and housing colonies and abutting main road. Moreover, exemplar sale deeds of nearby land proved market value of nearby lands from Rs 7250 per gunta to Rs 57,000 per gunta for smaller area. It was held that  circumstances emerging from record and keeping in view evidence adduced by parties, it was just and proper to fix Rs 21,000 per gunta as market value after deducting 10% towards development charges fixing Rs 18,900 per gunta for payment of compensation. Statutory compensation payable under Act, directed to be recalculated in the light of market rate fixed by Supreme Court. [Mallappa v. LAO, (2019) 2 SCC 369]

Narcotic Drugs and Psychotropic Substances Act, 1985 — Ss. 80, 8, 21 and 22 — Offences in relation to manufactured drugs: Provisions of NDPS Act can be applied in addition to provisions of Drugs and Cosmetics Act and are not in derogation of Drugs and Cosmetics Act. Additionally, it is prerogative of State to prosecute offender in accordance with law. [State of Punjab v. Rakesh Kumar, (2019) 2 SCC 466]

Penal Code, 1860 Culpable Homicide or Murder — Determination of Knowledge and Intention — What are and proof of: In this case, A-1 and A-2 along with others entered house of deceased (their political rival) and A-2 being exhorted by A-1 shot and killed deceased. Concurrent conviction of A-1 (with aid of S. 149) and A-2, affirmed, even though other accused stood acquitted. It was observed that PWs 1 and 2 (eyewitnesses) proved presence of A-1 at crime scene. Motive of A-1 to kill deceased, was clearly proved. There was enmity due to municipality politics and filing of election petition by wife of deceased against election of A-1. PW1 stated that A-1 exhorted and said that deceased must be finished and further stated that she will see how “no confidence motion” is passed against her. Submission that as A-6 and A-7 are acquitted, number of other accused shall be five or less than five and, therefore, conviction of A-1 under S. 302 IPC with aid of S. 149 IPC is not sustainable, held, has no substance. There was no definite finding by High Court that A-6 and A-7 were not present and there was overwhelming evidence to prove case against A-1 and A-2. Firearm used by A-2 was recovered at his instance. Courts below rightly convicted A-1 and A-2.  Unsuccessful attempt of defence to prove that there was no electricity supply during incident. Deposition of electricity engineer, DW 3, disbelieved. Prosecution succeeded in proving interpolation and overwriting in Ext. 32 on the timing and 2015 hours has been shown as 2030 hours. There was no material contradiction in evidence of PWs 1 and 2. There might be minor contradictions but benefit of doubt cannot be given if there are material contradictions. [Farida Begum v. State of Uttarakhand, (2019) 2 SCC 440]

Service Law  — AppointmentTenure appointment — Notice as to duration of tenure — When deemed to be served: In this case advertisement was issued inviting applications for post of Director, CDC clearly stating that tenure of Director would be 3 yrs, hence it was held that appellant was put to notice that his appointment was for period of three years though office order dt. 2-11-1992 vide which he was appointed did not mention tenure. Moreover, in terms of revised Guidelines issued by UGC, Director, CDCcould serve only two tenures of three years each. Appellant had already served two tenures, thus, High Court was justified in holding that appellant could not continue as Director, CDC. Moreover, it cannot be held that merely because sentence providing for tenure limitation follows sentence on deputationists, it is only applicable to them. Tenure limitation applies to every person appointed to post. [S.C. Singh v. State of Uttarakhand, (2019) 2 SCC 364]

Service Law Appointment Eligibility conditions/criteria Post of Principal: In this case, Appellant possessed 9 yrs and 3 months of experience; availed study leave for period between 15-4-1992 to 8-3-1996. It was held that study leave cannot be considered as teaching experience. Further held, exemption granted to appellant during pendency of proceedings before Supreme Court ought not to have been granted. Nevertheless, in absence of any retrospective application having been granted to such exemption, said exemption would not enure to benefit of appellant. No interference with impugned judgment finding appellant ineligible to hold post of Principal called for. [Vivek Mudgil v. State of U.P., (2019) 2 SCC 427]

Service Law — Recruitment ProcessEligibility conditions/criteria: In this case Post of Technician III, qualification prescribed was Matriculation with ITI in Electrical Trade. Appellants were not possessing ITI certification but were diploma-holders in Electrical Engineering/Electronics &Communication. It was held, prescription of qualification for post is matter of recruitment policy . Further held, State as employer is entitled to prescribe qualifications as a condition of eligibility after taking into consideration nature of job, aptitude required for efficient discharge of duties, functionality of qualification, course content leading up to acquisition of qualification, etc..Judicial review cannot expand upon ambit of prescribed qualifications nor decide equivalence of qualification . Equivalence of qualification is matter for State, as recruiting authority, to determine. In absence of specific statutory rule under which holding of higher qualification could presuppose acquisition of lower qualification, such inference cannot be drawn. Division Bench was justified in reversing order of Single Judge and holding that appellants could not be included in select list since they did not possess stipulated qualifications. [Zahoor Ahmad Rather v. Imtiyaz Ahmad, (2019) 2 SCC 404]

Specific Relief Act, 1963 — Ss. 34 and 38—Declaration of ownership and title—Matters to be established and proved: In this case suit for declaration of plaintiffs’ownership over suit property and permanent injunction against defendant from interfering with possession of plaintiffs, burden was on plaintiffs to prove ownership by producing relevant documentary and oral evidence. Question in issue was whether suit property owned by respondent-plaintiffs or appellant Temple, it was held on facts that as plaintiffs failed to discharge burden of proof. [Sri Ram Mandir, Jagtial v. S. Rajyalaxmi, (2019) 2 SCC 338]

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