2019 SCC Vol. 3 March 28, 2019 Part 2

Arbitration and Conciliation Act, 1996 — Ss. 11(6), 14 and 15(2): Appointment of arbitrator in exercise of power under S. 11(6) is not permissible when an arbitrator in terms of the arbitration agreement already stands appointed. S. 11(6) of the Act has application only when a party or the person concerned had failed to act in terms of the arbitration agreement and S. 15(2) only means that the appointment of the substitute arbitrator must be done according to the original agreement or provision applicable to the appointment of the arbitrator at the initial stage. [Rajasthan Small Industries Corpn. Ltd. v. Ganesh Containers Movers Syndicate, (2019) 3 SCC 282]

Arbitration without an arbitration agreement: The recent decision of the Supreme Court (SC) in Hindustan Antibiotics Ltd. v. Maharashtra Housing and Area Development Authority, (2018) 10 SCC 634  raises more problems than it solves in relation to arbitration law, the law of specific performance of contracts and the law of civil procedure. This article seeks to address those issues. Two steps forward, four steps back — Arbitration without an Arbitration Agreement by [M.S. Ganesh and K. Seshachary][(2019) 3 SCC (J-23)]

 Agricultural Indebtedness: The author is of the opinion that the judgment in Jayant Verma v. Union of India, (2018) 4 SCC 743, needs to be carefully analysed because it lays down principles of constitutional law of fundamental and critical importance regarding the doctrine of pith and substance and dealing with a clash a parliamentary law and a State legislation, in a situation where both Parliament and the State Legislature are exercising legislative powers which have been held to be within their respective legislative entries in exclusive fields. It is submitted that the said judgment is erroneous and needs urgent reconsideration, not merely because of its serious impact on our banking system and the regulatory powers of Reserve Bank of India, but also because the judgment is bound to be relied upon and applied again and again in situations where a Central statute and a State law are at cross-purposes and speak in different voices and move in directions. This is a situation which is frequently encountered whenever the Centre and a State are ruled by different political parties. Agricultural Indebtedness — Are Parliament and Reserve Bank Powerless? By S. Ganesh [(2019) 3 SCC (J-54)]

Armed Forces — Service Conditions — Marriage with Foreign National: In this case, appellant Squadron Leader in Air Force sought permission to marry one M holder of Indian passport with Canadian immigrant visa working in Toronto on 27-10-2008. In terms of AFO 14 of 2000 dt. 20-3-2009, Paras 2, 7 to 10 and 16(c), marriage with foreign national cannot be contracted without prior permission to marry and in case no communication was received from Directorate for 120 days there was deemed permission. Policy further stipulated that any violation of mandate would incur possibility of departmental action including dismissal or removal from service. Appellant without waiting for express permission or expiry of 120 days contracted marriage on 19-12-2008. Appellant was invalided out of service w.e.f. 18-11-2009 on medical grounds and consequently ceased to be member of Air Force. There is no restriction/prohibition for contracting marriage with Foreign National after release/retirement from AF and spouse is entitled to all admissible benefits. Hence it was held, no reason to disentitle appellant from said benefits at least after his release from IAF. Respondents also directed to include names of wife and child in service certificate from date of his release and extend to them all such benefits which spouse and children of retired officer would be entitled. [Navtej Singh v. Union of India, (2019) 3 SCC 345]

Civil Procedure Code, 1908 — Or. 44 Rr. 1 & 3 and Or. 33 Rr. 1 and 11 — Appeal as an indigent person: Plaintiff’s application under Or. 33 R. 1 for permission to institute suit as indigent person was dismissed by trial court and in appeal by High Court. In second round of litigation, plaintiff converted his suit into an original suit and also filed another suit for declaration and injunction in relation to subject-matter of first suit, which were clubbed together for trial. Trial court dismissed suits. Application accompanied by memorandum of appeal was filed by plaintiff under Or. 44 R. 1 before High Court stating that he continued to be indigent person. The Supreme Court held that it was maintainable being covered by Or. 33 R. 11 r/w Or. 44 R. 3(2). High Court erred in dismissing the same in view of earlier rejection of application under Or. 33 R. 1. Appellant-plaintiff’s status as indigent person having been declined earlier, he in appeal can state that he is or has become indigent person since date of decree appealed from. In such case inquiry required to be held by court to decide his status under Or. 44 R. 3(2). [Sushil Thomas Abraham v. Skyline Builders, (2019) 3 SCC 415]

Civil Procedure Code, 1908 — S. 100 — Second appeal — Substantial question of law: Interpretation of terms and conditions of documents, held, constitutes substantial question of law. If substantial question(s) of law do arise, then High Court is required to exercise power as per Ss. 100(4) and 100(5) CPC. [Rajendra Lalitkumar Agrawal v. Ratna Ashok Muranjan, (2019) 3 SCC 378]

Constitution of India — Art. 226 — Restoration of writ petition — When warranted: As High Court failed to deal with individual facts pertaining to case of respondents, and merely directed consideration of respondents’ cases in terms of another judgment, impugned judgment set aside and petition restored for disposal afresh. [State of H.P. v. Ganesh Dutt, (2019) 3 SCC 301]

Constitution of India — Arts. 226, 136 and 32 — Habeas corpus — Issuance of, in child custody matters: Essential considerations for issuance of Habeas corpus in child custody matters are, (a) it has to be considered by courts whether custody of child can be said to be unlawful or illegal, and (b) whether welfare of child requires that present custody should be changed and child should be given to care and custody of somebody else. [Kanika Goel v. State (NCT of Delhi), (2019) 3 SCC 336]

Criminal Procedure Code, 1973 — Ss. 378 and 386(a) — Appeal against acquittal — Interference by High Court: High Court should not interfere with order of acquittal merely because two views are possible. Interference of High Court in such cases is governed by well-established principles. According to such principles, it is only where appreciation of evidence by trial court is capricious or its conclusions are without evidence that High Court may reverse an order of acquittal. High Court may be justified in interfering where it finds that order of acquittal is not in accordance with law and that approach of trial court has led to a miscarriage of justice. High Court, however, must be satisfied that incident cannot be explained except on basis of guilt of accused and is inconsistent with their innocence. [Munishamappa v. State of Karnataka, (2019) 3 SCC 393]

Election — Democracy and General Principles — Criminalisation of politics — Need of electoral reforms: Prayers for laying down disqualification of MPs and MLAs against whom charges have been framed for heinous and/or grievous offence(s), and for direction to Election Commission for deregistration, non-renewal of registration or nonregistration of political parties if they associated themselves with persons against whom charges have been framed for heinous and/or grievous offence(s) and/or to disallow a candidate from contesting election on ground that charges have been framed for heinous and/or grievous offence(s), rejected, as laying down of such disqualifications is in the legislative domain. Parliament requested to enact robust law to ensure de-criminalisation of politics and elections. Directions given for manner in which all candidates to reveal their criminal antecedents, if any, to their political parties, during nomination process, and to public at large. [Public Interest Foundation v. Union of India, (2019) 3 SCC 224]

Electricity Act, 2003 — S. 61 r/w S. 181 — Regn. 44.2(d) of MERC (Multi Year Tariff) Regulations, 2011 i.e. a regulation providing for different station heat rate (SHR) for certain thermal generating stations — Validity of: The emphasis in the Tariff Policy is on creating incentives for achieving higher efficiency in order to enable the ultimate consumer to have the benefit of efficient operations. Further, deducing past performance on the basis of historical data, balancing diverse policy objectives and evaluating the comparative weight to be ascribed to the interests of stakeholders is a scientific exercise which is carried out by Commission. It was held that MERC followed the statutory procedures laid down for the determination of tariffs and duly considered the National Tariff Policy, suggestions of stakeholders as well as the assessment carried out by the CPRI Further, a body which is entrusted with the task of framing subordinate legislation has a range of options including policy options and if on an appraisal of all the guiding principles, it has chosen a particular line of logic or rationale, the court ought not to interfere. [Reliance Infrastructure Ltd. v. State of Maharashtra, (2019) 3 SCC 352]

Electronic Evidence: This article traces the interpretation of Section 65-A and Section 65-B of the Evidence Act from State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 to its overruling in Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473. The article analyses the fallacy in the judgment of the Supreme Court in Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473  with respect to the interpretation of Section 65-B(4), Evidence Act and points to the need for immediate remedial action. It traces the evolution of interpretation of Section 65-B of the Evidence Act, post-Anvar including the recent judgment of the Supreme Court in Shafhi Mohammad v. State of H.P. (2018) 5 SCC 311, to emphasise the need for revisiting Anvar and Shafhi judgments to correct the erroneous interpretation of Section 65-B(4) of the Evidence Act in both judgments of the Supreme Court. Finally the article also points to the need for urgent legislative review and revisions to Section 65-A and Section 65-B to ease the travails of proving electronic evidence. Electronic Evidence — The Great Indian Quagmire by N.S. Nappinai [(2019) 3 SCC (J-41)]

 Government Grants, Largesse, Public Property and Public Premises — Entitlement/Eligibility criteria — Preference in grant of contract — Entitlement to, if any: In this case, on request made by respondent-petitioner during lifetime of his ailing father, respondent allowed to sell tickets at halt station on behalf of Railways, after expiry of his father’s contract in 2010, does not create any grounds for preference in subsequent selection process. [Union of India v. Mohd. Samim Azad, (2019) 3 SCC 327]

Interpretation of Contracts: This article analyses the case law based upon which the principles of interpretation of contracts have evolved under the Indian law, including the aid of surrounding circumstances and extrinsic evidence. Interpretation of Contracts by Gaurav Pachnanda [(2019) 3 SCC (J-33)]

Legal Inconsistencies In Marital Rape Of Minors: This article is an attempt to address vital legal issues dealing with sexual abuse by a husband against a wife below 18 years of age. It is also interesting to deliberate upon whether provisions under the Criminal Procedure Code to deal with marital rape as a complaint case, especially after enactment of the POCSO Act, is gross violation of child rights for protection against sexual abuse irrespective of her relationship with the perpetrator. Quagmire of A Minor Wife In Filing A Complaint Case by Dr G.K. Goswami and Aditi Goswami [(2019) 3 SCC (J-60)]

 Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (40 of 1965) — S. 9-A and provisos thereto: Proviso to S. 9-A of the Act provided that nomination paper can be filed even in absence of caste certificate if such candidate enclosed true copy of application for caste certificate along with nomination form and undertaking that caste certificate issued by Caste Scrutiny Committee would be submitted within six months from date of election. Second proviso to S. 9-A, provides for retrospective disqualification of such elected member where such member fails to submit caste certificate within six months. These statutory provisions are mandatory in nature. Equities in individual cases not good ground to hold these provisions as directory and holding these provisions directory would negate these provisions. Reintroduction of these provisions in 2012 would indicate legislative intent to be mandatory irrespective of individual hardships. [Shankar v. State of Maharashtra, (2019) 3 SCC 220]

Maharashtra Village Panchayats Act, 1959 (3 of 1959) — S. 35 — No-confidence motion: S. 35(3) clearly indicates requirement of majority of not less than two-third of total number of members who are for the time being entitled to sit and vote. Expression “who are for the time being entitled to sit and vote” cannot be treated as members present and voting. Therefore, number of members who are entitled to sit and vote has to be considered for computing majority. Further, S. 35(3) used words “not less than two-third of the total members present”. Under these conditions, if computation of majority comes with fraction of vote then such fraction needs to be treated as one vote because votes cannot be expressed in fraction. Principle that figure less than 0.5 to be ignored and figure more than 0.5 has to be treated as one is not applicable to language used in S. 35. Thus, two-third of total number of members who are entitled to sit and vote has to be determined on strength of members entitled to vote at a particular time, and not just those present and voting. [Ganesh Sukhdeo Gurule v. Tahsildar, (2019) 3 SCC 211]

Patents Act, 1970 — S. 64 r/w S. 3(j) — Revocation of patent: Summary adjudication on the validity of patent in a civil suit is not permissible, when such suit involves complicated mixed questions of law and facts with regard to patentability and exclusion of patent. [Monsanto Technology LLC v. Nuziveedu Seeds Ltd., (2019) 3 SCC 381]

Penal Code, 1860 — S. 193 r/w Ss. 195 & 348 CrPC — Perjury: Cognizance of offence punishable under S. 193 IPC on basis of private complaint, not permissible. [Narendra Kumar Srivastava v. State of Bihar, (2019) 3 SCC 318]

Penal Code, 1860 — S. 306 — Abetment of suicide: Essential ingredients of offence under S. 306 IPC are abetment and intention of accused to aid or instigate or abet deceased to commit suicide. However, insulting deceased by using abusive language will not, by itself, constitute abetment of suicide. There should be evidence capable of suggesting that accused intended by such act(s) to instigate deceased to commit suicide. Unless ingredients of instigation/abetment to commit suicide are satisfied, accused cannot be convicted under S. 306 IPC. [M. Arjunan v. State, (2019) 3 SCC 315]

Railways Act, 1989 — S. 124-A — Quantum of compensation — Determination of, when the prescribed compensation is revised/raised after the date of accident: The liability will accrue on the date of the accident and the amount applicable as on that date will be the amount recoverable. Compensation will be payable as applicable on the date of the accident with interest as may be considered reasonable from time to time on the same pattern as in accident claim cases. However, if the amount so calculated is less than the amount prescribed as on the date of the award of the Tribunal, the claimant will be entitled to higher of the two amounts. [Union of India v. Radha Yadav, (2019) 3 SCC 410]

Rajasthan Value Added Tax Act, 2003 (4 of 2003) — Entry 56 of Sch. IV r/w Noti. No. F.12(63)FD/Tax/2005-19 dt. 19-4-2006 — Gypsum board: The change of the entry by a conscious decision of the legislature, signified that something more than basic gypsum was sought to be included in the entry by referring to “gypsum in all its forms”. Further, in the gypsum board there were no major chemical changes in gypsum other than dehydration and mixing of additives, so that the paper sheets can be used on both sides i.e. the character of “gypsum” is not changed in the mechanical exercise of converting it into a board — Further, the word “form” is meant to include “visible shape or configuration of something”, and thus there was no reason to exclude gypsum board from the expanded terminology “in all its forms”. Thus, held, the amended Entry 56 of Sch. IV, read as “gypsum in all its forms”, would include “gypsum board” under the term “all its forms”. [CCT v. Lohiya Agencies, (2019) 3 SCC 303]

Rule of law and the doctrine of proportionality: It has been emphasized in this article that for attainment of laudatory principle of the rule of law, which is an essential precept of any modern constitutional theory, doctrine of proportionality plays a vital role. It thereby achieves the cherished democratic values, another basic feature of the Constitution along with the rule of law. Proportionality as a Tool for Advancing Rule of Law by Justice A.K. Sikri [(2019) 3 SCC (J-1)]

Service Law — Recruitment Process — Cancellation of selection: There is no indefeasible right for appointment merely because candidate is found fit on basis of selection. Ordinarily, notification merely amounts to an invitation to qualified candidates to apply for recruitment. Further held, unless relevant recruitment rules so indicate, State is under no legal duly to fill vacancies. However, such decision should not be arbitrary. [State of Manipur v. Takhelmayum Khelendro Meitei, (2019) 3 SCC 331]

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