2019 SCC Vol. 3 April 14, 2019 Part 4

Civil Procedure Code, 1908 — S. 100 — Second appeal — Approach of High Court: Disposal of appeal in limine as involving no substantial question of law, not proper. [State of Rajasthan v. Gram Vikas Samiti, (2019) 3 SCC 711]

 Civil Procedure Code, 1908 — S. 144 — Restitution application: Variation or reversal of decree or order is essential condition for allowing restitution application. [Murti Bhawani Mata Mandir v. Ramesh, (2019) 3 SCC 707]

 Constitution of India — Art. 137 — Review petition: As factual error was committed by Supreme Court while dismissing appeal, which altered outcome of the case, hence, said order recalled. [Yatinder Kumar Aggarwal v. Mukund Swarup, (2019) 3 SCC 687]

 Constitution of India — Art. 226 — Proper mode of disposal: Findings qua discharge of settled liability under an OTS with bank/corporation is necessary, when the same is disputed by bank. [Punjab Financial Corpn. v. Paulbro Leathers (P) Ltd., (2019) 3 SCC 714]

Constitution of India — Art. 226 — Writs — Mandamus — Discretionary grants — Enforceability by a writ of mandamus: In this case Resolution of Board dt. 15-2-1985 resolved to implement Retirement Benefit Scheme from resources of Institute and “no separate grant was to be sought from Government”. In terms of S. 6(2) of 1964 Act, any financial expenditure of recurring nature exceeding Rs 1000 required approval of State Government. Thus, when pension exceeded Rs 1000 p.m. it could not be claimed from State Government as a right without approval. As no approval was sought from Government, consequently State Government cannot be called upon to bear burden of Pension Scheme. Further held, provision of payment of pension in budget of State Government for some years was a voluntary act and not enforceable by writ of mandamus. Release of grant is in discretion of grantor and cannot be enforced by grantee. No obligation on State to disburse grant towards pension amount in terms of the Act or Rules or even resolution of the Board. Resolution of Board to implement retirement benefit scheme from its own resources would not bind State Government. Employees of such Institute cannot be treated on a par with employees of State Government nor can State be burdened with responsibility to pay pension to employees of the Institute. [State of Bihar v. Sachindra Narayan, (2019) 3 SCC 803]

Delhi Cooperative Societies Act, 2003 (3 of 2004) — Ss. 91, 131 and 141 r/w Delhi Cooperative Societies Rules, 2007: Restriction on sale of society allotted/constructed plots to non-members is not permissible, when such restrictions are contrary to the applicable Act/Rules. Bye-laws of society and clauses in sale deed between members and society, imposing such restrictions, not valid. 2003 Act/Rules, applicable even to societies registered prior to the Act coming to force. [Delhi Dayalbagh Cooperative House Building Society Ltd. v. Registrar, Coop. Societies, (2019) 3 SCC 745]

Income Tax Act, 1961 — S. 12-AA(3) — Charitable Purpose/Charitable Trust — Cancellation of registration of trust: One bogus/sham transaction, if established, held, enough for cancellation of registration. [CIT v. Jagannath Gupta Family Trust,(2019) 3 SCC 717]

Karnataka Stamp Act, 1957 (34 of 1957) — Ss. 33, 34(a), 37, 38, 39(a)(b) — Penalty — Scheme of the provisions: Imposition of flat rate ten times penalty as prescribed under S. 34(a), is mandatory. No discretion has been vested in authority or court in this regard in view of Ss. 33 and 34 but Deputy Commissioner has discretionary power in matter of imposition of ten times penalty. Deputy Commissioner has also discretionary power under S. 38 to direct refund of such penalty on facts of particular case. [Gangappa v. Fakkirappa, (2019) 3 SCC 788]

Motor Vehicles Act, 1988 — S. 52 — Alteration of vehicle at variance with particulars contained in the certificate of registration — Impermissibility of: No vehicle can be altered in a manner where particulars in the certificate of registration are at variance with those “originally specified by the manufacturer”. Also, the rules cannot be so interpreted so as to permit the alteration as prohibited under S. 52(1) of the Act. Further, the provisions of Ss. 52(2), (3), (4) and (5) have to be read harmoniously and the Explanation to S. 52 says that “alteration” means a change in the structure of a vehicle which results in a change in its basic feature. Thus, alterations which do not change the basic features are outside the purview of alteration. [Regional Transport Officer v. K. Jayachandra, (2019) 3 SCC 722]

Negotiable Instruments Act, 1881 — Ss. 138 and 141 — Necessary conditions to be complied with for constituting offence under S. 138: In order to make out offence under S. 138 necessary conditions to be fulfilled are (i) presentation of cheque to bank within six months from date on which it is drawn or within period of its validity, whichever is earlier; (ii) demand being made in writing by payee or holder of cheque in due course by issuance of notice in writing to drawer of cheque within thirty days of receipt of information from bank of return of cheques; and (iii) failure of drawer to make payment of amount of money to payee or holder in due course within fifteen days of receipt of notice. Only upon compliance with these conditions, offence under S. 138 can be said to have been committed by person issuing cheque. Further held, commission of offence by company is express condition precedent to attract vicarious liability of others. When company can be prosecuted, then only persons mentioned in other categories could be vicariously liable for offence subject to pleadings and proof. While prosecuting Directors, company must be arraigned as accused. [Himanshu v. B. Shivamurthy, (2019) 3 SCC 797]

Penal Code, 1860 — Ss. 302/34, 394/34 and 449: In this case there was involvement of 3 respondent-accused in robbery with murder of deceased in the occupation of moneylending, and pawning gold and silver ornaments, after entering his house, along with murder of his wife and daughter. Case was based on circumstantial evidence and last seen evidence and recovery of stolen property, two main aspects on which case primarily rests, were not established. Acquittal of all respondents by High Court due to discrepancies and contradictions in statement of chance witness, confirmed. [Ashish Jain v. Makrand Singh, (2019) 3 SCC 770]

Petroleum and Natural Gas Regulatory Board (Authorising Entities to Lay, Build, Operate or Expand City or Local Natural Gas Distribution Networks) Regulations, 2008 — Regn. 18(2): Rejection of application of authorization for an ongoing/unfinished project solely for non-compliance with cl. (d) of Regn. 18(2) i.e. for not meeting the stipulated physical progress/financial commitment, not permissible. The language in which Regn. 18 has been couched does not make the consideration in clauses thereof including cl. (d), to be mandatory, though the same would be relevant considerations. [Adani Gas Ltd. v. Union of India, (2019) 3 SCC 641]

Rajasthan Tenancy Act, 1955 (3 of 1955) — Ss. 207, 256, 88 and Third Sch. Sl. No. 5 — Bar of civil court’s jurisdiction: Jurisdiction to declare khatedari rights exclusively vests with Revenue Court. Only after declaration of rights by Revenue Court, suit in respect of land in question can be maintained. [Pyarelal v. Shubhendra Pilania, (2019) 3 SCC 692]

Service Law — Appointment — Compassionate appointment: There is no right to compassionate appointment.  Compassionate appointment is exception to general rule that appointment to any public post in service of State must be made in accordance with Arts. 14 and 16 of the Constitution. Basis for the policy is immediacy of need for financial assistance faced by family of deceased employee consequent to his untimely death, terms on which such applications would be considered are subject to policy framed by the State. [State of H.P. v. Shashi Kumar, (2019) 3 SCC 653]

Service Law — Judiciary — Absorption: Absorption of ad hoc Fast Track Court Judges in regular cadre as Additional District and Sessions Judges: In this case, in terms of modalities and procedure prescribed in Brij Mohan Lal, (2012) 6 SCC 502, written exam for 150 marks and viva voce for 100 marks was to be conducted. Qualifying marks prescribed for written exam as well as combined written and viva voce examination was aggregate 40% for general candidates, 35% for reserved candidates i.e. no qualifying marks were prescribed for viva voce nor advertisement stipulating qualifying marks nor relevant Rules prescribing as such. Respondents (4 in number) secured minimum qualifying marks in written examination but failed to secure consolidated required percentage. The Supreme Court noted that Respondents Sb & Sd secured 99.7 and 99.3 marks respectively as against required marks of 100. While considering that they had been working as ad hoc Judges for number of years and fact that it was only a qualifying examination for purpose of regularisation, by rounding-off their marks, they directed to be treated as qualified. As far as remaining two respondents were concerned, in exercise of powers under Art. 142 of the Constitution on equitable considerations considering substantial number of years of service put in by them, High Court directed to conduct another exam for them within six months. [High Court of Hyderabad v. P. Murali Mohana Reddy, (2019) 3 SCC 672]

Specific Relief Act, 1963 — Ss. 10, 16 and 20 to 23 — Specific performance of contract — Grant of: Specific relief being discretionary remedy, material questions looked into are: (i) existence of valid concluded contract; (ii) readiness and willingness of plaintiff to perform his part of contract; (iii) plaintiff performing his part of contract and its extent and manner, and whether such performance in consonance with terms of contract; (iv) whether it is equitable to grant relief of specific performance regarding suit property or it causes any hardship to defendant, and if yes, how and in what manner such relief can be granted; and (v) entitlement of plaintiff to any other alternative remedy such as refund of earnest money with interest, etc. and on what grounds such relief can be granted. Parties must properly plead and prove their respective stand. Once parties plead and prove their respective case, court can exercise its discretionary power. [Kamal Kumar v. Premlata Joshi, (2019) 3 SCC 704]

U.P. Consolidation of Holdings Act, 1953 (5 of 1954) — Ss. 19, 21 & 3(1-A): Proposal of modification of chaks (parceling of the land, also in relation to irrigation channels) under consolidation schemes, where there is no partition in holdings between co-sharers, not legal. All co-sharers entitled to equitable treatment. [Hansraj v. Mewalal, (2019) 3 SCC 682]

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