2019 SCC Vol. 4 May 7, 2019 Part 3

A Tribute to Justice M.R.A. ANSARI: A Tribute to Justice M.R.A. ANSARI by Dr Justice A.K. Sikri, Judge, Supreme Court of India. Growing significance of dignity jurisprudence in the world of ascending human rights by Dr Justice A.K. Sikri [(2019) 4 SCC (J-3)]

 Administrative Law — Natural Justice — Principles of natural justice vis-à-vis national Security: National security is a matter of policy. Courts cannot decide whether something is in interest of State or not. It should be left to executive. In situations involving national security, party cannot insist on strict observance with principles of natural justice. Under such situations, it is duty of courts to read into and provide for statutory exclusion, if not expressly provided in rules governing field. However, depending upon facts of particular case, it will be open for court to satisfy itself whether there were justifiable facts. It can call for files and see whether it is a case involving interest of national security. Once State is of stand that issue involves national security, court shall not disclose reasons to affected. [PartyDigi Cable Network (India) (P) Ltd. v. Union of India, (2019) 4 SCC 451]

Civil Procedure Code, 1908 — S. 100 — Second appeal — Delay/Laches — When cannot be condoned: In this case, appellant HUDA i.e. their officers, in charge of legal cell failed to discharge their duty assigned to them promptly and with due diligence despite availability of all facilities and infrastructure. In such circumstances, officers in charge of case should be made answerable for lapse on their part and make good loss suffered by appellant HUDA. Delay of 1942 days, wholly inordinate and cause pleaded for its condonation was equally unexplained by appellants. Explanation given does not constitute a sufficient cause within meaning of S. 5 of Limitation Act. It was, therefore, rightly not condoned by High Court. [HUDA v. Gopi Chand Atreja, (2019) 4 SCC 612]

Civil Procedure Code, 1908 — S. 100 — Second appellate jurisdiction of High Court — Concurrent findings of facts: Proper mode to be followed by High Court, summarized. High Court interfering with concurrent findings of facts even in absence of prima facie case, held, unsustainable. [T. Ramalingeswara Rao v. N. Madhava Rao, (2019) 4 SCC 608]

Constitution of India — Arts. 136 and 142 — Exercise of extraordinary jurisdiction: As there was settlement of dispute between parties as per State Trading Corpn. of India Ltd., (2019) 2 SCC 387, exercising extraordinary jurisdiction under Arts. 136 and 142, all pending litigations between parties quashed. [State Trading Corpn. of India Ltd. v. Global Steel Holding Ltd., (2019) 4 SCC 639]

Criminal Procedure Code, 1973 — S. 319 — Addition of accused not named in FIR/charge-sheet during course of trial — Basis for: In this case, in-laws were not named in dying declaration, FIR or charge-sheet, hence held that they cannot be added under S. 319 CrPC to face trial under Ss. 498-A, 304-B/302 IPC and Ss. 3 and 4 of DP Act, 1961 on basis of vague and non-specific allegations. Order of High Court affirming order of trial court adding accused under S. 319 CrPC, on facts, held, unsustainable. [Sunil Kumar Gupta v. State of U.P., (2019) 4 SCC 556]

Criminal Procedure Code, 1973 — S. 482 —  Compromise and settlement as a basis of quashing complaint: In this case accused-appellant’s deceived complainant and family by obtaining two cheques as pre-condition of payment of maturity and bonus amount and issuing fraudulent insurance policies instead. Complaint case for criminal breach of trust, forgery to cheat and criminal conspiracy declined to be quashed by High Court under S. 482 CrPC . During hearing of present appeals, appellants agreed to pay original complainant-respondent a total sum of Rs 10,00,000 towards full and final settlement of claim and original complainant agreed not to proceed with complaint any further and to be permitted to compound offences. The Supreme Court held that finding a fit case to exercise power under Art. 142 of the Constitution to meet ends of justice, allowing parties to compound offences, even though offences alleged are non-compoundable, as dispute between parties predominantly or overwhelmingly of a civil nature and private dispute between two private parties . On deposit of Rs 10,00,000 by appellants in bank account of original complainant within two weeks, Registry directed to return Rs 3,75,000 along with interest, if any, to appellants, deposited before Supreme Court pursuant to order of Supreme Court dt. 7-4-2015 on payment of agreed sum and release of deposit, criminal proceedings before Magistrate to be quashed. [Srinivasan Iyenger v. Bimla Devi Agarwal, (2019) 4 SCC 456]

Criminal Procedure Code, 1973 — S. 482 — Quashing of complaint — When warranted: In this case, there was implication of mother and brothers of husband in cruelty/dowry, etc. cases but the Court held that as there does not appear to be any justification or/and prima facie case to proceed against them either jointly or severally for offences alleged against them in the complaint, complaint filed against them, quashed. [Tabrez Khan v. State of U.P., (2019) 4 SCC 615]

Criminal Procedure Code, 1973 — Ss. 397 and 401 — Revision: For ex parte dismissal of revision petition, recording of reasons is necessary. [Harveer Singh v. State of U.P., (2019) 4 SCC 633]

Criminal Trial — Juvenile/Child accused — Determination of Age — Non-consideration of relevant Rules — Remand: In this case, issue of juvenility of appellant was decided on basis of 2007 Juvenile Justice Rules and incident occurred on intervening night of 23-5-2000/24-5-2000 while report pertaining to age of juvenile accused submitted on 8-5-2003. Hence, it was held that 2007 Rules were inapplicable. Question of juvenility of appellant was required to be determined on basis of the 2001 Rules. [Gaurav Kumar v. State of Haryana, (2019) 4 SCC 549]

Education Law — Medical and Dental Colleges — Affiliation/Recognition — Purpose of/Entitlement to/Prerequisites for/Competent Authority — Surprise inspection: Court cannot direct “surprise” inspection on a particular date or within a particular period. [Medical Council of India v. National Institute of Medical Sciences & Research, (2019) 4 SCC 586]

Environment Law — Water/River/Coastal Pollution — Effluents, Sewage, River and Lake Pollution: Levy of sewerage cess on industries is permissible, when such industries were already getting the effluents treated. [Vasant Chemicals Ltd. v. Hyderabad Metropolitan Water Supply & Sewerage Board, (2019) 4 SCC 562]

Family and Personal Laws — Hindu Law — Family Property, Succession and Inheritance: A limited estate is inherited by widow from her husband but widow is treated as owner, not mere trustee of reversioners, capable of alienating property for necessity or interest of estate. Till widow is alive, reversioners would not have vested interest in estate. Their right remains in the nature of a spes successionis. Succession would open on death of widow. [Gopalakrishna v. Narayanagowda, (2019) 4 SCC 592]

Festschrift in honour of Professor Upendra Baxi: A foreword to the Festschrift in honour of Professor Upendra Baxi, Foreword to Human Rights: Contemporary Issues by Justice Ranjan Gogoi [(2019) 4 SCC (J-1)]

Haryana Ceiling on Land Holdings Act, 1972 (26 of 1972) — Ss. 26(b) and 18: There is bar of jurisdiction of civil courts to decide legality of order passed by prescribed authority in land ceiling proceedings. Validity of dismissal of civil suits, upheld. [Meg Raj v. Manphool, (2019) 4 SCC 636]

Income Tax Act, 1961 — Ss. 154, 234-A, 234-B, 234-C, 245-D(1), (4) & (6) and 245-I: Waiver of statutorily payable interest and reopening of its concluded proceedings by Settlement Commission, not permissible. [Kakadia Builders (P) Ltd. v. CIT, (2019) 4 SCC 543]

Kerala Private Forests (Vesting and Assignment) Act, 1971 (26 of 1971) — S. 8 — Declaration of land as not being private forest: In this case suit land had been mentioned as under cultivation in local inspection report dt. 8-6-1998. In map, one portion is shaded with green colour and other unshaded. Green shade indicating cultivation of cashew and unshaded portion indicating cultivation of cashew and rubber. These trees being 30-40 yrs old. Further, suit land was not covered by Madras Preservation of Private Forest Act, 1949 and it was not part of forest. No forest trees were found in suit land. Materials clearly indicated that suit land was not private forest, hence, declaration that suit land not as private forest justified. [State of Kerala v. Padalodiyil Mary Antony, (2019) 4 SCC 449]

Labour Law — Continuous service — Issue whether appellant worker was in continuous service of R-1 for one year — Proper determination of: In this case, the High Court by impugned judgment answered issue in favour of R-1 employer. It was held that such finding of fact were binding on Supreme Court and cannot be examined de novo by appreciating evidence in exercise of jurisdiction under Art. 136 of the Constitution. Besides, it was also held that High Court had examined issue in proper perspective and rightly concluded that A-1 did not work for one year with R-1 employer which was neither against evidence adduced, nor against law nor perverse. [Dilip Mani Dubey v. Siel Ltd., (2019) 4 SCC 534]

Land Acquisition Act, 1894 — S. 23 — Compensation — Determination of market value: Factors for increase in land price, summed up. Distinction in escalation of market price in rural area and urban area, reiterated. Sale transaction of small extent of land and auction of small booths of lands not proper indicators in fixing market value. [Balwant Singh v. State of Haryana, (2019) 4 SCC 472]

Limitation of Liability Clause: When one is concerned with a building contract, one starts with the presumption that each party would be entitled to all those remedies for its breach as would arise by operation of law, including setting up a claim of work done, damages and loss of profit. However, in many standard form contracts mainly with government departments, it is seen that the contracts contain clauses which absolve the Government/department from any liability or damage caused, whatsoever, in the execution of contract with the private player/contractor. These clauses are known as limitation of liability clauses. The article provides the Indian picture on such clauses. Limitation of Liability Clause: Position in India by Saurabh Bindal and R.V. Prabhat [(2019) 4 SCC (J-25)]

Nationalised Banks (Management and Miscellaneous Provisions) Scheme, 1970 — Cl. 3(2)(iii) — Validity: Different criteria for qualification prescribed for workman employee and officer employee for nomination of Director from their respective categories i.e. for nomination in workman employee category minimum three years’ residual service required but no similar qualification prescribed for officer employee category, upheld. [Federation of Bank of India Staff Unions v. Union of India, (2019) 4 SCC 462]

Payment of Gratuity Act, 1972 — S. 2(e) (as amended by Amending Act 47 of 2009) — Teacher, whether “employee” within meaning of S. 2(e) and entitled to gratuity: Effect of amendment was twofold, firstly, law laid down by Supreme Court in Ahmedabad Private Primary Teachers’ Assn., (2004) 1 SCC 755 was no longer applicable against teachers, and secondly teachers were entitled to claim gratuity. [Birla Institute of Technology v. State of Jharkhand, (2019) 4 SCC 513]

Penal Code, 1860 — S. 149 — Unlawful assembly — Common object: It is necessary to establish common object before a person can be convicted with aid of S. 149. [Dauwalal v. State of M.P., (2019) 4 SCC 538]

Penal Code, 1860 — S. 302 r/w Ss. 149 and 147 — Doubt as to involvement in unlawful assembly and sharing of common object: As there were inconsistencies regarding role played by particular accused (appellant herein) and improbability of her having played that role, conviction was reversed. [Amrika Bai v. State of Chhattisgarh, (2019) 4 SCC 620]

Penal Code, 1860 — S. 302 r/w Ss. 149 and 148 — Conviction for murder with aid of S. 149: For conviction for murder with aid of S. 149 there is need to establish membership of unlawful assembly and sharing of common object to murder. As presence of three appellants herein, not established, they are acquitted. [Peer Singh v. State of M.P., (2019) 4 SCC 582]

Penal Code, 1860 — Ss. 302/120-B, 302/34, 302/114 and 379/34 — Murder with theft: In this case , wife of deceased victim was involved in getting him murdered in conspiracy with her lover and one other (appellant-accused A-3, A-1 and A-2, respectively). Links in the chain of circumstances completely established. All circumstances found linked up with one another and chain was not broken in between. Prosecution successfully proved beyond reasonable doubt that all appellants (A-1 to A-3) entered into conspiracy to commit murder of deceased and A-1 and A-2 committed murder of deceased. Hence, conviction as upheld by High Court, confirmed. [Vidyalakshmi v. State of Kerala, (2019) 4 SCC 623]

Penal Code, 1860 — Ss. 302/34 and 394/34 — Robbery with murder of 5 ladies of family — Circumstantial evidence: In this case, testimony of child witness (PW 8) was fraught with inconsistencies and none of the other witnesses identified appellants. There was unexplained delay in reporting crime. FIR was registered against unknown persons. Recoveries made under S. 27, Evidence Act were not reliable, nor established motive of robbery. Articles which were recovered being far less valuable than many articles found at home of victim. Even in FIR, there was no averment of any article or money being stolen or lost. Hence, as crime was not established beyond reasonable doubt, conviction was reversed. [Digamber Vaishnav v. State of Chhattisgarh, (2019) 4 SCC 522]

Rent Control and Eviction — Appeal — Stay of eviction decree on condition of payment of arrears of rent, and damages for use and occupation — When warranted: In this case, High Court granted stay of trial court order granting decree of eviction subject to appellant’s paying damages for use and occupation at Rs 7500 p.m. from 17-1-2008 till 31-12-2017 and thereafter @ Rs 15,000 w.e.f. 1-1-2018, payable by 30th day of each calendar month, subsequently vacated for non-compliance vide impugned order. Appellant tenant having complied with said conditions before Supreme Court, Impugned order set aside and stay granted in favour of appellant defendant qua second floor restored. As Respondent landlord had taken possession of basement by filing execution petition, as an interim measure, appellant-defendant directed to pay Rs 6000 for use and occupation of second floor until disposal of appeal pending before High Court on or before every 10th day of each calendar month through RTGS to account of respondent landlord. Respondent landlord permitted to withdraw Rs 10,80,000 and also subsequent deposit of Rs 15,000 p.m. by filing necessary affidavit of undertaking before High Court and withdrawal of money to be subject to final outcome of appeal before High Court. [Laxmi Chaudhary v. Sahib Singh Chaudhary, (2019) 4 SCC 617]

Service Law — Resignation — Distinction from retirement, including “voluntary retirement”: When employee resigns he takes conscious decision to disengage himself from services on terms and conditions as prevalent on that date. Any subsequent scheme would not accrue to his benefit except to the extent which is specifically made applicable to him. Resignation entails forfeiture of service. In service jurisprudence, concepts of “resignation” and “retirement” have different connotations and hence, employee resigning cannot seek benefit of pension scheme especially when resignation is one of the disqualifications for seeking pensionary benefits under relevant Regulations. [LIC v. Shree Lal Meena, (2019) 4 SCC 479]

Tenancy and Land Laws — Occupancy Rights/Tenant/Tenancy/Patta — Ryotwari patta: Ryotwari patta cannot be granted in respect of area declared as water body (tank poramboke) as same vests in Government free from all encumbrances under S. 2-A of Andhra Pradesh (Andhra Area) Inams (Abolition and Conversion into Ryotwari) Act, 1956. [Sarvepalli Ramaiah v. District Collector, Chittoor, (2019) 4 SCC 500]

U.P. Imposition of Ceiling on Land Holdings Act, 1960 (1 of 1961) — S. 12 — Determination of surplus land: Attempt to revive ceiling proceedings after land vesting with State, not sustainable. [Sheetla Devi v. State of U.P., (2019) 4 SCC 469]

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