2021 SCC Vol. 9 Part 3

In Part 3 of Volume 9, read this very interesting decision, where the Election Commission of India (EC) had sought a direction restraining the media from reporting on court proceedings after Madras High Court made certain oral remarks attributing responsibility to the EC for the present surge in the number of cases of COVID-19, due to their failure to implement appropriate COVID-19 safety measures and protocol during the elections, the bench of Dr. DY Chandrachud and MR Shah, JJ has refused to restrain the media from reporting on Court proceedings and made a strong case in favour of Open Court and freedom of press.[Election Commission of India v. M.R. Vijayabhaskar, (2021) 9 SCC 770]

Short Notes: 6


Arbitration and Conciliation Act, 1996 — Ss. 11(6) and 11(6-A) r/w S. 8 — Appointment of arbitrator — Arbitrability of disputes: Limitations upon Court’s intervention at the stage of appointment i.e. the issue whether the claims are arbitrable or not, held, ordinarily falls within the domain of the arbitration. [Zostel Hospitality (P) Ltd. v. Oravel Stays (P) Ltd.,(2021) 9 SCC 765]

Arbitration and Conciliation Act, 1996 — Ss. 11, 8 and 11(6-A) — Interference by Court at referral stage: Interference by Court at referral stage is restricted to cases where it is manifest that the claims are ex facie time-barred and dead, or there is no subsisting dispute. Prima facie review by Court at referral stage is not warranted, when the same would be inconclusive or inadequate, requiring detailed examination. Court exercising power under S. 11 would refer the matter to arbitration when contentions relating to non-arbitrability are plainly arguable, or when facts are contested. Further, the Court cannot, at the referral stage, enter into a mini trial or elaborate review of the facts and law which would usurp the jurisdiction of the arbitrator. Disputed question of novation of agreement containing arbitration clause is thus non-determinable by Court at the stage of reference when it would result in a mini trial or elaborate review of facts and law. [Sanjiv Prakash v. Seema Kukreja, (2021) 9 SCC 732]

Civil Procedure Code, 1908 — S. 25 — Transfer of cases — Matrimonial dispute: In this case, as the matter was at advanced stage of trial, prayer for transfer was rejected. However, respondent husband was directed to pay Rs 4000 as expenses towards appearance of petitioner wife on each date of hearing. [Abhilasha Gupta v. Harimohan Gupta, (2021) 9 SCC 730]

Constitution of India — Art. 19(1)(a) — Open court: Citizens have right to information relating to court proceedings, except in-camera proceedings. This includes the right to know the observations/remarks made by Judges during course of hearing, not forming part of judgment or binding decision, which the media is free to report. Exchange of legal arguments before court must be accessible to public scrutiny which is crucial for transparency, accountability, public faith and confidence in the process and vital for functioning of democracy. Open court also serves educational purpose by enabling citizens to know how practical application of the law impacts upon their rights. [Election Commission of India v. M.R. Vijayabhaskar, (2021) 9 SCC 770]

Insolvency and Bankruptcy Code, 2016 — S. 31 r/w Ss. 3(10), 5(20) and 5(21) — S. 31 before and after its amendment by S. 7 of Act 26 of 2019: Approved resolution plan is binding on Central Government, State Government and local authorities, including tax authorities. Amendment of S. 31 is clarificatory in nature, thus retrospective. The legislative intent of making the resolution plan binding on all the stakeholders after it gets the seal of approval from the adjudicating authority, is that after the approval of the resolution plan, no surprise claims should be flung on the successful resolution applicant. That is to say, the dominant purpose is that the successful resolution applicant should start with fresh slate on the basis of the resolution plan approved. Further, the words “other stakeholders” squarely cover the Central Government, any State Government or any local authorities, including tax authorities. Furthermore, dues of Central Government, any State Government or any local authority, including tax authorities, held, amount to “operational debt”. [Ghanashyam Mishra & Sons (P) Ltd. v. Edelweiss Asset Reconstruction Co. Ltd., (2021) 9 SCC 657]

Rent Control and Eviction — Deemed Vacancy — Subsequent events — Non-residential premises (shop) — Partnership business: Dissolution of partnership firm upon death of the partners, held, led to deemed vacancy of the premises by the tenant in this case. [Davesh Nagalya v. Pradeep Kumar, (2021) 9 SCC 796]

SCs, STs, OBCs and Minorities — Caste/Tribe Certificate — Claim of belonging to Schedule Tribe “Halba”: In this case, as claim was negated by Caste Scrutiny Committee, hence held, no advantage can be extended to appellant which would run counter to the 2000 Act, as well as authoritative pronouncement of Supreme Court in Food Corpn. of India, (2017) 8 SCC 670 which held that the 2000 Act must be given full and unhindered effect and operation. [Chandrabhan v. State of Maharashtra, (2021) 9 SCC 804]

SCs, STs, OBCs and Minorities — Caste/Tribe Certificate — Genuineness: Verification of genuineness Caste/Tribe Certificate is intended only to avoid false and bogus claims. Repeated inquiries for verification of caste certificates would be detrimental to the members of Scheduled Castes and Scheduled Tribes. Reopening of inquiry into caste certificates can be only in cases where the allegations are that they are vitiated by fraud or that they were issued without proper inquiry. [J. Chitra v. State Level Vigilance Committee, (2021) 9 SCC 811]

W.B. Municipal Act, 1996 (6 of 1996) — Ss. 217 and 218 — Sanction of building plan or cancellation of sanction and direction for demolition — Competent authority: Chairman, Board of Councillors, held, has no jurisdiction to decide dispute on issue of misrepresentation or fraudulent statement in application seeking sanction of building plan, for passing order to cancel sanction and to demolish structure. Decision in this regard has to be taken by Municipal Council. [Debabrata Saha v. Serampore Municipality, (2021) 9 SCC 818]

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