2019 SCC Vol. 6 July 14, 2019 Part 3

Advocates — Vakalatnama — Nature of: Vakalatnama is only a document which authorises an advocate to appear on behalf of party. By and large, it has no bearing on merits of case.  [Sasikala Pushpa v. State of T.N., (2019) 6 SCC 477]

Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959 (as amended by Regulation 1 of 1970) — Ss. 2(g) and 3(1)(a) — Validity of transfer: In this case it was held that High Court did not examine case in context of “transfer” as defined in S. 2(g). Moreover, certain documents filed by appellants to prove legal transactions in question as being legal and not hit by S. 3 as amended w.e.f. 1-1-1970, were not considered. Inquiry on aforementioned two grounds was also necessary while deciding legality and validity of sale deeds in question along with all other issues decided by courts below. Setting aside impugned order as also order passed by Single Judge, in interest of justice, matter remanded to High Court (Single Judge writ court) for deciding appellants’ writ petition afresh on merits in accordance with law on all issues arising in case including those mentioned above, on merits strictly in accordance with law uninfluenced by any observations made by Supreme Court. [Bikkina Rama Rao v. Tahsildar (Tribal Welfare), (2019) 6 SCC 474]

Civil Procedure Code, 1908 — Or. 9 R. 13 vis-à-vis S. 96(2) and S. 97 — Ex parte decree — Setting aside of: Relative scope and operation of Or. 9 R. 13 and S. 96(2) and duties of court when deciding cases under these provisions, explained in detail. Delay occasioned in filing of first appeal against ex parte decree under S. 96(2) after dismissal of application under Or. 9 R. 13, due to pursing remedy under Or. 9 R. 13, can be condoned as time spent therein can be considered as sufficient cause for condonation of delay provided there is no dilatory tactic or lack of bona fides on part of appellant. Proposition “remedies provided as simultaneous and cannot be converted into consecutive remedies” cannot be applied in rigid manner. [Bhivchandra Shankar More v. Balu Gangaram More, (2019) 6 SCC 387]

Consumer Protection — Consumer Forums — Maintainability — Delay/ Laches/Limitation: In this case, NCDRC by conditional order dt. 16-11-2018 required appellants to file a rejoinder and evidence within four weeks, failing which complaint was to stand dismissed automatically. On 15-2-2019, NCDRC declined to grant any further time to appellants for delay in filing a rejoinder and evidence and dismissed complaint itself. The Supreme Court held that observation and inference of NCDRC that case might lack merit, for which there was delay, unwarranted. Orders of this nature detract from true purpose for which NCDRC has been established. NCDRC should have borne this in mind instead of rejecting complaint on a technicality. Such dismissals only add to burden of litigation and defeat purpose of ensuring justice in consumer for a. Though Consumer Protection Act, 1986 stipulates a period for disposing of a consumer complaint, it is also a sobering reflection that complaints cannot be disposed of due to non-availability of resources and infrastructure. In this background, it is harsh to penalise a bona fide litigant for marginal delays that may occur in judicial process. Consumer fora should bear this in mind so that ends of justice are not defeated. Since complaint was dismissed on a mere technicality, issued no notice to respondent, impugned order dt. 15-2-2019 set aside and Consumer Complaint No. 1432 of 2016 to file of NCDRC restored. Rejoinder and affidavit of evidence being ready, to be taken on record by NCDRC. [Vibha Bakshi Gokhale v. Gruhashilp Constructions, (2019) 6 SCC 489]

Consumer Protection Act, 1986 — S. 21(b) r/w S. 15 — Maintainability of revision petition before National Commission: Revision petition before National Commission against an order passed by the State Commission in an execution proceeding, not maintainable. The jurisdiction under S. 21(b) can be exercised by the National Commission only in case of a “consumer dispute” filed before the State Commission. Further, execution proceedings are independent proceedings and orders passed for enforcement of the final order in the consumer dispute, cannot be construed to be orders passed in the “consumer dispute”. There is no remedy provided under S. 21 to file a revision petition against an order passed in appeal by the State Commission in execution proceedings. [Karnataka Housing Board v. K.A. Nagamani, (2019) 6 SCC 424]

Contempt by advocates: There is no licence to any member of Bar to indulge in undignified conduct to lower down dignity of court. Such attempts deserve to be nipped at the earliest. [Rakesh Tiwari v. Chief Judicial Magistrate, (2019) 6 SCC 465]

Contempt of Court — Nature and Scope — Contempt by advocates: In this case, there was criminal contempt of court by advocate. He did not apologise, but maligned and scandalised subordinate court. He made bare denial and did not show any remorse for his misconduct. The Court ordered debarment from entering court premises/debarment from making appearances in court, in addition to, or in substitution of, imprisonment and fine. [Rakesh Tiwari v. Chief Judicial Magistrate, (2019) 6 SCC 465]

Contempt of Courts Act, 1971 — S. 2(c) — Criminal Procedure Code, 1973 — S. 319 — Power to proceed against other persons appearing to be guilty of offence: Even in a case where protest-petition stage at instance of complainant urging court to summon other persons as well who were named in FIR but not implicated in charge-sheet has gone, in that case also, held, court not powerless vide S. 319, and even persons named in FIR but not implicated in charge-sheet can be summoned to face trial provided during the trial some evidence surfaces against proposed accused. [Rajesh v. State of Haryana, (2019) 6 SCC 368]

Criminal Procedure Code, 1973 — S. 482 — Exercise of power: While exercising powers under this section, application of mind and recording of reasons are necessary. [Jitender Kumar v. State of Bihar, (2019) 6 SCC 396]

Criminal Procedure Code, 1973 — Ss. 362, 353, 242 and 173(5)(a) — Scope of S. 362 — Order rejecting application under S. 242 if “judgment or final order disposing of a case” under S. 362: As rejection of application under S. 242 not having been ordered on merits, but for failure to furnish a satisfactory explanation for the delay, S. 362 CrPC has no relevance on facts. [State v. M. Subrahmanyam, (2019) 6 SCC 357]

Education Law — Employment and Service Matters re Educational Institutions —Termination/Removal/Dismissal: In this case, termination was in violation of S. 35(2), U.P. State Universities Act, 1973 as no prior approval of Vice-Chancellor mandated under S. 35(2) taken before termination, termination order was held liable to be set aside. [Lal Bahadur Gautam v. State of U.P.,(2019) 6 SCC 441]

Education Law — Haryana School Education (Group C) State Cadre Service Rules, 2012 — Rr. 3, 7, 9(5), 11 Appendix A & B r/w Rr. 3, 6, 9 Appendix B, Haryana State Education School Cadre (Group C) Service Rules, 1998: In this case, C&V teachers were to be treated as TGT to avoid anomalous situation where they, after commencement of 2012 Rules would not be governed by any set of Rules. Thus, expression that such C&V teachers stand converted to TGT was only to facilitate their service condition to be governed by 2012 Rules rather than to upgrade them as members of TGT cadre to be eligible for promotion to post of Headmaster. Feeder and promotional cadre cannot be treated on a par by virtue of said expression. Such interpretation is further reinforced by fact that C&V teacher is a dying cadre and no further recruitment is to be made to these categories. Such C&V teachers, if eligible, can seek direct recruitment but they cannot be treated en masse as members of TGT cadre. Besides, TGTs are engaged to provide elementary education and purpose of Rules is better served by ensuring education to students by trained teachers. Impugned order passed by High Court that C&V teachers became members of TGT cadre after commencement of 2012 Rules unsustainable. [State of Haryana v. Sandeep Singh, (2019) 6 SCC 453]

Family and Personal Laws — Hindu Law — Family Property, Succession and Inheritance — Karta/Manager — Alienation of Property/Legal necessity: In this case, Joint family property was mortgaged and later sold to mortgagee by father to maintain himself at old age and his family and to pay mortgage money, release mortgage and pay other dues. The Supreme Curt held that alienation made by father was for legal necessity and for paying antecedent debts. [Rengan Ambalam v. Sk. Dawood, (2019) 6 SCC 399]

Labour Law — Reinstatement/Back Wages/Arrears — Reinstatement and back wages — Daily wagers: For temporary workers like NMR respondents it is necessary to show that they had worked continuously for 240 days in a year. Further held, in this case, initial burden was upon respondent workmen to adduce evidence to prove said fact and it was only after that burden was discharged, burden shifted upon appellant Board. Single Judge, as well as Division Bench, erred in placing burden upon appellant. However, considering that respondents had attained age of superannuation and there was no question of reinstatement, in peculiar circumstances award of 50% back wages which was already paid to respondents under S. 17-B, ID Act plus Rs 2 lakhs as ordered by Supreme Court directed to be in full quit of all claims including 50% back wages and also quantum of compensation in lieu of reinstatement. It was also noted that said order not to be treated as precedent. [T.N. Water Supply & Drainage Board v. M. Natesan, (2019) 6 SCC 448]

Narcotic Drugs and Psychotropic Substances Act, 1985 — S. 32-B (inserted by Act 9 of 2001) — Factors to be taken into account for imposing higher than minimum punishment: S. 32-B, from cls. (a) to (f), enumerates various factors for imposing punishment higher than minimum term of imprisonment. However, specific words used in S. 32-B, that court may, in addition to such factors as it may deem fit, clearly indicates, that court’s discretion to take such factor as it may deem fit, is not fettered by factors which are enumerated in cls. (a) to (f) of S. 32-B. Quantity of substance with which accused is charged, is a relevant factor, which can be taken into consideration while fixing quantum of punishment. Cls. (a) to (f), S. 32-B, do not enumerate any factor regarding quantity of substance as a factor for determining punishment. In the event, court takes into consideration magnitude of quantity with regard to which accused is convicted, said factor is relevant factor and court cannot be said to have committed an error, when taking into consideration any such factor, higher than the minimum term of punishment is awarded. [Rafiq Qureshi v. Narcotic Control Bureau, (2019) 6 SCC 492]

Registration Act, 1908 — Ss. 17 and 49 — Partition/Family Arrangement/Settlement: Even unregistered document of family settlement would operate as estoppel against parties to such settlement. It can be used as corroborative evidence as explaining arrangement made thereunder and conduct of parties. If partition of joint family properties took place by oral family settlement, unregistered document containing signature of all members, containing list of properties partitioned, can be used as corroborative evidence. [Thulasidhara v. Narayanappa, (2019) 6 SCC 409]

Service Law — Recruitment Process — Eligibility criteria/conditions — Prescription of — Competent authority — Scope of Judicial Review: Essential qualifications for appointment to post are for employer to decide according to needs and nature of work. He may also prescribe additional or desirable qualifications, including any grant of preference. [Maharashtra Public Service Commission v. Sandeep Shriram Warade, (2019) 6 SCC 362]

Service Law — Reservation/Concession/Exemption/Relaxation and Affirmative Action — Migration to Other State/UT: In this case for the Post of Assistant Motor Vehicle Inspector, advertisement was published stipulating that all Indian citizens were eligible for appointment but persons having “domicile” in Dadra and Nagar Haveli were to be given weightage and candidates claiming to be members of Scheduled Tribe were required to furnish attested copy of certificate issued by competent authority. Person belonging to SC/ST notified by President for Union Territory were entitled to be considered as reserved candidate provided he was resident of said Union Territory. Presidential Notification issued for UT of Dadra and Nagar Haveli extended benefit of reservation to STs mentioned therein on basis of residence and not origin. Hence it was held, submission that reservation was not available to migrant ST liable to be rejected. Moreover, contention that requirement of residence was for a period of 10 yrs for a person to claim benefit of reservation also cannot be accepted in absence of any substantiating evidence. Besides, no such averment was made in counter-affidavit, nor said issue was raised before High Court or in SLP, and hence does not merit consideration. Respondent directed to be appointed as Assistant Motor Vehicle Inspector without delay. [State (UT of Dadra & Nagar Haveli) v. Abhinav Dipakbhai Patel, (2019) 6 SCC 434]

Unlawful Activities (Prevention) Act, 1967 — S. 43-D(2)(b) — Default bail — Denial of, and extension of detention: In this case, specific reasons for extension of detention, were given by Public Prosecutor. The order of Special Court granting further judicial detention was affirmed by the Supreme Court. However, taking note of later developments and supporting facts of this case, default bail granted by High Court, not interfered with. [State v. Shakul Hameed, (2019) 6 SCC 350]

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