2021 SCC Vol. 8 Part 2
In this part read some very interesting decisions delivered by the Supreme Court expertly analysed by our editors.
Arbitration and Conciliation Act, 1996 — Ss. 11(6) and 11(9) r/w S. 2(1)(f)(i) and S. 2(1)(f)(iii) — International commercial arbitration — Scope of: Disputes between parties, where one of the parties is a sole proprietorship with the proprietor resident outside India would fall within the realm of international commercial arbitration, even when the address of the sole proprietorship is in India. [Amway (India) Enterprises (P) Ltd. v. Ravindranath Rao Sindhia, (2021) 8 SCC 465]
Constitution of India — Art. 243-K and Art. 243-ZA — Elections to Panchayats and Municipalities — State Election Commissioner to be appointed under Art. 243-K/Art. 243-ZA — Person(s) who may be appointed as: All-State Election Commissioners appointed under Art. 243-K/Art. 243-ZA in the length and breadth of India, held, have to be independent persons who cannot be persons who are occupying a post or office under the Central or any State Government. If there are any such persons holding such post of State Election Commissioner in any State, such persons must be asked forthwith to step down from such office and State Government concerned be bound to fulfil the constitutional mandate of Art. 243-K/Art. 243-ZA by appointing only independent persons to this high constitutional office. [State of Goa v. Fouziya Imtiaz Shaikh, (2021) 8 SCC 401]
Constitution of India — Arts. 14, 32, 226 and 227 — Economy and/or economic policy decisions: Limited scope of judicial review in matters concerning economy and/or economic policy decisions, emphasized. Judges are not experts in economic and fiscal regulatory matters and thus, should not encroach upon these areas and must be more reluctant to impugn the judgment of the experts who may have arrived at a conclusion unless the court is satisfied that there is illegality in the decision itself or such policy could be faulted on the ground of mala fides, arbitrariness, unfairness, etc. Wisdom and advisability of economic policy are not amenable to judicial review. [Small Scale Industrial Manufactures Assn. v. Union of India, (2021) 8 SCC 511]
Criminal Procedure Code, 1973 — S. 482 and Ss. 227 & 228 — Quashment — Stage of framing of charge: Principles that must keep in mind by High Court while exercising jurisdiction under S. 482 at the stage of framing of charges, summarized. [Saranya v. Bharathi, (2021) 8 SCC 583]
Criminal Procedure Code, 1973 — Ss. 378(4) & (5) and 386(a) — Grant of leave to appeal against order of acquittal by trial court: Principles reiterated regarding manner in which power in respect thereof to be exercised by High Court. [Brijesh Singh v. State of U.P., (2021) 8 SCC 392]
Education Law — Professional Colleges/Education — Engineering or Technical Colleges or MBA — Affiliation/Recognition/Approval/Permission: In this case, grant of affiliation was denied by University on sole ground, that timeline as prescribed by AICTE had lapsed. Following law laid down in VIIT Pharmacy College, (2021) 10 SCC 513, University was directed to grant affiliation to Colleges concerned. [Sri Sai RR Institute of Pharmacy v. Dr A.P.J. Abdul Kalam Technical University, (2021) 8 SCC 397]
Election — Political Parties, Politics and Government Formation — Officers of Political Party — Party leader/Group leader — Change in — Same procedure followed for removal from the office concerned, as was followed for selection thereto — Validity: In this case, notice was issued calling meeting for change of party leader and selection of new party leader. Petitioner did not attend said meeting, Based on majority decision, District President of party took decision to remove petitioner due to her anti-party activities and respondent appointed in her place. In appeal, the Supreme Court held that the decision taken was in democratic and valid way inasmuch as the same procedure which was followed while selecting appellant as party leader, was followed for removing her and appointing R-3 as Gatneta/group leader/party leader. Furthermore, said procedure followed on both occasions did not violate the applicable Act and Rules. [Sangeeta v. State of Maharashtra, (2021) 8 SCC 334]
Insolvency and Bankruptcy Code, 2016 — Ss. 7 and 3(8) — Insolvency proceedings against a corporate person being a guarantor of a loan account of the defaulting principal borrower who is not a “corporate person”: Principal borrower, held, is not required to be “corporate person”, for initiating such proceedings against guarantor who is a corporate person. A right or cause of action enures to the lender (financial creditor) to proceed against the principal borrower, as well as the guarantor in equal measure in case they commit default in repayment of the amount of debt acting jointly and severally. Further, held, the principal borrower may or may not be a corporate person, but if a corporate person extends guarantee for the loan transaction concerning a principal borrower not being a corporate person, it would still be covered within the meaning of expression “corporate debtor” in S. 3(8) IBC. The status of the guarantor, who is a corporate person, metamorphoses into corporate debtor, the moment principal borrower (regardless of not being a corporate person) commits default in payment of debt which had become due and payable. Thus, action under S. 7 IBC could be legitimately be invoked even against a guarantor who is corporate person. [Laxmi Pat Surana v. Union Bank of India, (2021) 8 SCC 481]
Land Acquisition and Requisition — Resettlement/Rehabilitation or Restoration/Reallotment — Employment in lieu of acquisition of lands — Scheme for: In this case, rehabilitation employment scheme provided that a claimant would be eligible for grant of employment if land acquired for purposes of project is at least 2 acres, No documentary evidence was produced to indicate that respondent had title to land in excess of two acres. Holding of relatives and others cannot be included in holding of respondent merely on basis of self-serving affidavits which would not amount to a conveyance of title. In different rehabilitation schemes compensation and rehabilitation are provided to “family”, which includes wife, children, and dependant families only. Relatives who are not dependent on claimant will constitute a separate family unit for purposes of compensation and rehabilitation. Self-serving affidavits executed by father, brother and nephews of claimant cannot be taken as basis of determining whether holding of respondent was in excess of threshold of two acres. Such affidavits create no interest in land particularly when persons who executed those affidavits do not fall within ambit of phrase “family”. Thus, held, if claimant does not come within criteria under scheme he cannot claim benefit of the scheme concerned, as in present case. [Eastern Coalfields Ltd. v. Anadinath Banerjee, (2021) 8 SCC 593]
Maharashtra Police Act, 1951 (22 of 1951) — Ss. 51 to 56 — Externment — Object — Externment order based on satisfaction of authority when deserves interference by Court: Drastic action under these provisions should only be taken in exceptional cases to maintain law and order in a locality and/or prevent breach of tranquillity and peace. Fundamental rights of citizens guaranteed under Arts. 19(1)(d) and (e) of the Constitution cannot be taken away under these provisions on frivolous grounds. [Rahmat Khan v. State, (2021) 8 SCC 362]
Medical and Health Law — Duties of Doctors and Medical Ethics — Government doctors/Central/State Health Services — Study leave — Cancellation of — Whether proper and justified: In this case, study leave granted to appellant Medical Officer posted in Government (NCT) of Delhi Hospital to pursue postgraduate course, revoked vide order dt. 22-1-2021 in terms of policy dt. 20-10-2020 and office order dt. 22-10- 2020 not to grant study leave to doctors working in government hospitals in view of COVID-19 Pandemic. The Supreme Court held that the said policy decision for certain length of time, in apprehension of rise in COVID-19 cases, to ensure availability of maximum doctors possible is neither arbitrary, nor discriminatory, nor violative of Art. 14 of the Constitution. However, further held, Court cannot be oblivious to legitimate expectation of COVID-19 warriors like appellant to fair treatment, in conformity with applicable Service Rules to enable them to pursue higher education. Guidelines/Directions of Ministry of Health and Family Welfare dt. 2-11-2012 entitled Medical Officer on certain conditions to study leave. [Rohit Kumar v. State (NCT of Delhi), (2021) 8 SCC 381]
Real Estate (Regulation and Development) Act, 2016 — Ss. 88, 89, 2(zr) and 18(2): S. 88 provide that RERA would be in addition to and not in derogation of other laws for the time being in force. “Law for the time being in force”, held, can include laws which come into force in the future. Cognate and allied laws which supplement RERA, held, are saved by S. 88. However, laws which are contrary to and derogate from RERA, such as W.B. Housing Industry Regulation Act, 2017 (41 of 2017) and W.B. Building (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993 (20 of 1993), held, not saved by S. 88. [Forum for People’s Collective Efforts v. State of W.B., (2021) 8 SCC 599]
Service Law — Judiciary — Compulsory retirement: Interference with order based on recommendation of Administrative Committee which commended itself to Full Court of High Court, by Court under writ jurisdiction, when permissible, principles summarized. [High Court of Rajasthan v. Bhanwar Lal Lamror, (2021) 8 SCC 377]
Service Law — Police — Appointment — Antecedents/Character — Cancellation/Refusal of appointment on grounds of — Post of Police Constable: Cancellation of candidature of respondent candidates (4 in number) by Screening Committee on ground that respondents were involved in criminal cases and in some cases even charges were framed and cognizance taken, after which cases against them were compromised, held proper. [State v. Raj Kumar, (2021) 8 SCC 347]
Service Law — Reinstatement/Back Wages/Arrears — Back Wages — Entitlement to — Unjustified punishment: In this case some articles in godown were found removed and placed near fencing when appellant “Rakshak” in Railway Protection Force was on special duty. High Court by impugned judgment found penalty of removal disproportionate to delinquency alleged observed that there was no theft of any railway property since articles were found near fencing after having been removed from godown restoring punishment of reduction of pay to minimum of timescale of Rs 200 for period of two years. The Supreme Court held that even said penalty/punishment was also unjustified. Considering that appellant was out of employment since 1983 and during pendency of proceedings in High Court he had superannuated and thus, could not be reinstated, respondents directed to pay 33% of back wages with continuity in service and full retiral benefits by giving him notional increments, promotion and benefits based on continuity within stipulated time. [Laxman Singh v. Union of India, (2021) 8 SCC 479]
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