2020 SCC Vol. 4 Part 1

A tribute to Ashok H. Desai: A tribute to Ashok H. Desai, who was the Attorney General of India from July 1996 to May 1998 and was earlier the Solicitor General of India. Ashok H. Desai — A Man for All Seasons by Pallav Shishodia, [(2020) 4 SCC (J-6)]

A tribute to P.P. Rao: A tribute to P.P. Rao, eminent constitutional law expert and Senior Advocate of the Supreme Court of India. P.P. Rao — Jurist Par Excellence by Sanjeev Johari [(2020) 4 SCC (J-10)]

A tribute to Professor N.R. Madhava Menon: A tribute to Professor NR Madhava Menon, who was an Indian civil servant, lawyer and legal educator, considered by many as the father of modern legal education in India. N.R. Madhava Menon — A Phenomenal Leader in Education by Dipak Misra [2020) 4 SCC (J-1)]

A tribute to Professor N.R. Madhava Menon: A tribute to Professor NR Madhava Menon, who was an Indian civil servant, lawyer and legal educator, considered by many as the father of modern legal education in India. N.R. Madhava Menon — Law Teacher, Social Engineer and Humanist by Justice A.K. Sikri [(2020) 4 SCC (J-3)]

Administrative Law — Administrative Action — Administrative or Executive Function — High Officials Holding/Exercising Discretionary Powers: The power vested in authority must be discharged in accordance with constitutional principles and statutory rules/regulations governing the field regardless of rank/office held by officer(s) concerned. Furthermore, judicial scrutiny of decision does not depend on rank/position of decision-maker. [Nalin Kumar Bhatia v. Union of India, (2020) 4 SCC 78]

Arbitration and Conciliation Act, 1996 — Ss. 2(2), 2(1)(e) & (f), 2(4), (5) & (7), 20, 9, 42 and Pt. I or Pt. II: Juridical or legal seat of arbitration once designated or determined, held, explaining and following five-judge Bench decision in BALCO, (2012) 9 SCC 552, exclusively determines which courts will have jurisdiction over the arbitration, as opposed to the place where whole or part of the cause of action arises. A&C Act, 1996 has accepted the territoriality principle in S. 2(2). Thus, once the seat of arbitration is designated or determined, the same operates as an exclusive jurisdiction clause as a result of which only the courts where the seat is located would have jurisdiction over the arbitration, to the exclusion of all other courts, even courts where part of the cause of action may have arisen. However, held, where it is found on the facts of a particular case that either no “seat” is designated by agreement, or has not been so determined by the Arbitral Tribunal, or the so-called “seat” is only a convenient “venue”, then there may be several courts where a part of the cause of action arises, that may have jurisdiction over the arbitration. Hence, an application under S. 9 of the A&C Act may be preferred before a court in which part of the cause of action arises in a case where parties have not agreed on the “seat” of arbitration, and before such “seat” may have been determined, on the facts of a particular case, by the Arbitral Tribunal under S. 20(2) of the A&C Act. [BGS SGS SOMA JV v. NHPC, (2020) 4 SCC 234]

Arbitration and Conciliation Act, 1996 — Ss. 34, 20 and 42 — Jurisdiction of court to entertain S. 34 application for setting aside an arbitral award: Once the seat of arbitration is designated, the same operates as an exclusive jurisdiction clause as a result of which only the courts where the seat is located would have jurisdiction to the exclusion of all other courts, even court(s) where part of the cause of action may have arisen. [Hindustan Construction Co. Ltd. v. NHPC, (2020) 4 SCC 310]

Civil Procedure Code, 1908 — Or. 41 R. 31 and Ss. 96 and 100 — Appeal: The meaning and scope of appeal, stated. Proper mode of exercising appellate jurisdiction especially by first appellate court, clarified. The compliance with essentialities under Or. 41 R. 31, held, is mandatory. The distinction between appeal under Ss. 96 and 100, reiterated. The order of the High Court deciding first appeal without complying with Or. 41 R. 31, not permissible. [Malluru Mallappa v. Kuruvathappa, (2020) 4 SCC 313]

Civil Procedure Code, 1908 — S. 92 — Leave to institute suit under — Grant of, when there were allegations that public charitable trust was being run as a private family trust and the object of the Trust was being ignored — Leave to institute a suit — When may be granted: Three conditions are required to be satisfied in order to invoke S. 92 and to maintain an action under S. 92 namely: (i) the Trust in question is created for public purposes of a charitable or religious nature; (ii) there is a breach of trust or a direction of court is necessary in the administration of such a Trust; and (iii) the relief claimed is one or other of the reliefs as enumerated in S. 92. [Ashok Kumar Gupta v. Sitalaxmi Sahuwala Medical Trust, (2020) 4 SCC 321]

Companies Act, 2013 — Ss. 241(2), 337 and 339 — “Any persons who were knowingly parties to the carrying on of the business in the manner aforesaid” who can be proceeded against in terms of S. 339(1) — Persons covered thereunder: “Business in the manner aforesaid” in the above expression in S. 339(1), held, means the business of the company whose affairs are alleged to be mismanaged and not to the business of some other company. Thus, freezing of assets of a person not belonging to the company whose affairs are alleged as being mismanaged/fraudulently conducted, held, is impermissible. [Usha Ananthasubramanian v. Union of India, (2020) 4 SCC 122]

Constitution of India — Art. 137 — Curative petition — Nirbhaya Gang Rape case: The Supreme Court in this case held that the curative petition were not within parameters of law laid down in Rupa Ashok Hurra, (2002) 4 SCC 388, hence the petitions were dismissed. Prayers for oral hearing and for stay on execution of death sentence were also rejected. [Pawan Kumar Gupta v. State (NCT Of Delhi), (2020) 4 SCC 54]

Constitution of India — Art. 137 — Review — No error apparent on record: In this case, as there was no error apparent on face of the record calling for review of judgment in Natesan Agencies (Plantations), (2019) 15 SCC 70, review petition was dismissed. [Natesan Agencies (Plantations) v. State, (2020) 4 SCC 160]

Constitution of India — Arts. 370, 356 and 14 — Power of modification of Art. 370 — Scope of, and Manner in which may be done: By Presidential Orders dt. 5-8-2019 and 6-8-2019, Constitution of India was made applicable to State of Jammu and Kashmir in its entirety, like the rest of India. To determine the validity of said Presidential Orders, reference to larger Bench, held, not warranted. However, no view was expressed on the merits of the matter. [Shah Faesal v. Union Of India, (2020) 4 SCC 1]

Court’s Interference with Arbitral Awards: The object of this article is to discuss the scope of interference of court in arbitration proceedings with reference to ONGC Ltd. v. Saw Pipes Ltd., (2003) 5 SCC 705 and Ssangyong Engg. & Construction Co. Ltd. v. NHAI, (2019) 15 SCC 131. Ssangyong: The Demise of Court Interference with Arbitral Awards as Per Saw Pipes by Sunil Gupta [(2020) 4 SCC (J-28)]

Criminal Procedure Code, 1973 — S. 173(8): Hearing of accused by court before direction for further investigation is made, held, is not obligatory. The power of court to direct police to conduct further investigation cannot have any inhibition. There is nothing in S. 173(8) to suggest, that court is obliged to hear accused before any such direction is made. The casting of any such obligation on court would only result in encumbering court with burden of searching for all potential accused to be afforded with opportunity of being heard. As law does not require it, Magistrate cannot be burdened with such obligation. [Satishkumar Nyalchand Shah v. State of Gujarat, (2020) 4 SCC 22]

Criminal Procedure Code, 1973 — Ss. 340 and 195(1)(b): In this case of perjury before Supreme Court, Secretary General was directed to institute proceedings therefor under Ss. 193 and 199 IPC for filing of altered/modified documents before Supreme Court by the petitioner Company. [New Era Fabrics Ltd. v. Bhanumati Keshrichand Jhaveri, (2020) 4 SCC 41]

Employees’ Compensation Act, 1923 — S. 3(1) — Accident arising out of and in course of employment — Principle of notional extension of “course of employment” at both point of entry and exit in time and space — Extent to which may be applied: In this case, deceased aged 21 years driver, having to drive a truck for an approximately 200 km route, on a hot summer day stopped by a canal to fetch water and also to have a bath, unfortunately, slipped into canal and died. The Court held that taking judicial notice of extreme hot weather and manufacturer specification stating non-availability of air conditioning in truck cabin and compulsion for deceased to stay fresh and alert not only to protect truck from damage but also to ensure smooth journey and protect his own life, possible need for a bath or water to cool down engine could be considered as incidental to employment by extension of notional employment theory. Order of High Court were held unsustainable and set aside. Order of Commissioner dt. 12-12-2005 restored and payments in terms of said order directed to be made to appellants within six weeks. [Poonam Devi v. Oriental Insurance Co. Ltd., (2020) 4 SCC 55]

Enforcement of Arbitral Awards: The author in this article emphasis that the judgment in Pam Developments (P) Ltd. v. State of W.B., (2019) 8 SCC 112 underlines the “rule of law” in the “democratic republic” of India. It brings the Indian arbitral process as well as the Indian court system much closer to the desired international standard of fair and equal treatment to all parties in a dispute. It should serve as a great re-assurance to all spectators of foreign investment who have been seeking a “level playing field” in international and even domestic commercial arbitrations in India. Level Playing Field: No Preference to Government in Enforcement of Awards in Democratic India by Manavendra Gupta [(2020) 4 SCC (J-41)]

Essential Commodities and Services — Fixation of Price — Classification — Permissibility: In this case, there was fixation of price for levy sugar zone-wise for crushing years 1984-85 and 1985-86 and parity was claimed on basis of similarly placed sugar factories in same district. The Supreme Court held that merely because there is difference in price in Central Zone and Eastern Zone, appellant cannot claim as a matter of right that its unit should be placed in Eastern Zone instead of Central Zone during relevant years or claim parity with other units only on ground that all units are situated in same District. Besides, price fixation in respective zones was based on exhaustive study by experts and conclusions reached by Central Government in exercise of statutory power, cannot be said to be either discriminatory or unreasonable. Moreover, fact that appellant’s unit was placed in Eastern Zone subsequently was inconsequential since said policy decision was subject to satisfaction of Government by taking into account expert reports and does not constitute discrimination. [Oudh Sugar Mills Ltd. v. Union of India, (2020) 4 SCC 29]

Family and Personal Laws — Hindu Law — Capacity to give in Adoption: The right of adoptee father to give his son for adoption born prior to his adoption, discussed through case law. [Kalindi Damodar Garde v. Manohar Laxman Kulkarni, (2020) 4 SCC 335]

Information Technology Act, 2000 — S. 79 (as it stood prior to its substitution w.e.f. 27-10-2009) — Intermediary (ISP) — Safe harbour principle — Scope of immunity— Criminal liability under general law: The unamended S. 79 is not a bar to prosecution for commission of the offence of defamation under Ss. 499/500 IPC. Immunity available under S. 79 of the IT Act, 2000, prior to its substitution, was limited to the exemption to the intermediary from any liability under IT Act, 2000 and the Rules or Regulations framed under IT Act, 2000, in regard to third-party information or data made available by the intermediary. However, immunity under unamended S. 79 did not extend to exemption from criminal liability under the general law. Thus, held, unamended S. 79, did not protect an intermediary in regard to the offence under Ss. 499/500 IPC. [Google India (P) Ltd. v. Visaka Industries, (2020) 4 SCC 162]

Law of Sedition in India and Freedom of Expression: In this article the constitutional right of freedom of speech and expression has been discussed along with the laws of sedition and also the interplay between the two. Law of Sedition in India and Freedom of Expression by Justice Deepak Gupta [(2020) 4 SCC (J-14)]

Motor Vehicles Act, 1988 — S. 149(2)(a) — Vehicle involved in accident driven by insured owner’s driver not having a valid/genuine licence — Insurer’s liability to pay under the policy concerned in such a case: While hiring a driver the employer is expected to verify if the driver has a driving licence but if the driver produces a licence which on the face of it looks genuine, the employer is not expected to further investigate into the authenticity of the licence unless there is cause to believe otherwise. Further, if the employer finds the driver to be competent to drive the vehicle and has satisfied himself that the driver has a driving licence there would be no breach of S. 149(2)(a)(ii) of the MV Act and the insurance company would be liable under the policy. It would be unreasonable to place such a high onus on the insured to make enquiries with RTOs all over the country to ascertain the veracity of the driving licence. However, if the insurance company is able to prove that the owner/insured was aware or had notice that the licence was fake or invalid and still permitted the person to drive, the insurance company would no longer continue to be liable. [Nirmala Kothari v. United India Insurance Co. Ltd., (2020) 4 SCC 49]

Motor Vehicles Act, 1988 — Ss. 166 and 168 — Compensation — Computation of income — Income from assets — Depletion of net income as a factor: Though a court may be required to account for the depletion in the net income accruing from the assets of the deceased on account of payments for engaging managers, etc. evidence must be adduced to compute the depletion. As no such evidence was adduced in this case, hence, claimants could not claim any benefit thereof. [Malarvizhi v. United India Insurance Co. Ltd., (2020) 4 SCC 228]

Penal Code, 1860 — S. 34: Principle of vicarious/joint liability under the section, explained. How to determine the existence of common intention, also explained. Principles also summarised regarding requirements for applicability of S. 34. [Chhota Ahirwar v. State of M.P., (2020) 4 SCC 126]

Penal Code, 1860 — Ss. 302/149 — Murder in furtherance of common object: In this case, there was conviction of accessory co-accused persons solely relying upon evidence of sole related eyewitness, while conviction of main assailant already stood confirmed. However, evidence/deposition of sole eyewitness was full of material contradictions, omissions and improvements so far as said co-accused (appellants herein) were concerned. The Supreme Court held that the accused were entitled of benefit of doubt. Hence, conviction was reversed. [Parvat Singh v. State of M.P., (2020) 4 SCC 33]

Registration Act, 1908 — Ss. 49 and 17(1)(d): Unregistered lease deeds is not admissible as evidence. Unregistered lease deed, held, did not convey any right to purported lessee. [Food Corpn. of India v. V.K. Traders, (2020) 4 SCC 60]

Service Law — Pension — Entitlement to pension: Right to pension cannot be taken away by mere executive fiat or administrative instruction since pension and gratuity are not mere bounties, or given out of generosity of employer but employee earns these benefits by virtue of his long, continuous faithful and unblemished service. Withholding of 10% pension and full gratuity in terms of Circulars dt. 22-8-1974 and 31-10-1974 and Government Resolution dt. 31-7-1980 on ground of pending criminal proceeding, in absence of any rules or statutory provisions permitting the same, not permissible. [Hira Lal v. State of Bihar, (2020) 4 SCC 346]

Service Law — Recruitment Process — Eligibility criteria/conditions: Change in eligibility conditions after commencement of selection process, permissible. The principles of estoppel and approbation and reprobation are not applicable, in such cases against candidates who had participated in selection process and sought to challenge the same. [Nitesh Kumar Pandey v. State of M.P., (2020) 4 SCC 70]

Service Law — Recruitment Process — Eligibility criteria/conditions — Equivalence of qualifications: In this case, eligibility criteria for recruitment to post of Technician Grade II in U.P. Power Corporation Ltd. stipulated course on Computer Concept (CCC) Certificate or its equivalent computer qualification certificate. In this case, the CCC certificate was issued initially by DOEACC Society and thereafter by NIELIT. Hence it was held, CCC certificate mentioned in OM of Managing Director dt. 5-7-2013 stipulating CCC certificate or equivalent computer qualification, and also in advertisement was a reference only to CCC certificate issued by DOEACC/NIELIT, and none other. “Equivalent computer certificate” thus would mean only certificates which were found equivalent to CCC certificates issued by DOEACC or NIELIT. Besides, candidates who had submitted application in response to advertisement also understood it as such. [Mukul Kumar Tyagi v. State of U.P., (2020) 4 SCC 86]

Transfer of Property Act, 1882 — Ss. 108(j) and 5 — Transfer, sale or assignment of leasehold interest: Neither (1) compulsory acquisition of leasehold by exercise of power under S. 269-UD of Income Tax Act, 1961, nor (2) auction of the property thereafter by Department, held, are a “transfer, sale or assignment” of the leasehold interest, so as to attract said clause in lease deed for payment of unearned increase charges to lessor. [DDA v. Karamdeep Finance & Investment (I) (P) Ltd., (2020) 4 SCC 136]

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