2021 SCC Vol. 10 Part 3

This part has a very interesting decision from the Supreme Court, wherein the Court issued “general uniform direction” of deduction of 15 per cent of the annual school fees for the academic year 2020-2021 in lieu of unutilised facilities/activities and not on the basis of actual data school-wise.[Indian School v. State of Rajasthan, (2021) 10 SCC 517]

Short Notes: 19

Constitution of India — Arts. 19(1)(g), 14 and 226 — Right of private unaided schools to determine their school fees — Scope of — Extent of regulation permissible: Every private unaided school is free to devise its own fee structure depending upon the quality of education it provides but commercialisation, profiteering and/or charging of capitation fee is not permissible. In such case, Government can direct a school to reduce its fees. Government can also provide for external regulatory mechanism for determination of school fees or so to say fixation of “just” and “permissible” school fees at the initial stage itself, as done vide the provisions of the impugned Rajasthan Schools (Regulation of Fee) Act, 2016 (14 of 2016) and Rules made thereunder. Fee regulatory structure prescribed by the 2016 Act and the 2017 Rules, held, amounted to reasonable restrictions and hence did not violate rights under Art. 19(1)(g) of the private schools concerned. At the end, what is relevant is that the institution is entitled to fix its own fee structure, which may include reasonable revenue surplus for the purpose of development of education and expansion of the institution, as long as it does not entail in profiteering and commercialization. [Indian School v. State of Rajasthan, (2021) 10 SCC 517]

Criminal Law — Criminal Trial — Generally: Directions issued regarding reformation and clarity of procedure and practices relating to investigation, prosecution, trial, evidence, judgment and bail. Draft Rules of Criminal Practice, 2021, to be finalised and read in terms of discussion in this order. All High Courts and State Governments should incorporate the Draft Rules of Criminal Practice, 2021 annexed to the present order read with clarifications and directions herein. [Criminal Trials Guidelines Regarding Inadequacies and Deficiencies, In re., (2021) 10 SCC 598]

Education Law — Professional Colleges/Education — Pharmacy Colleges/Institutions — Affiliation and recognition — Change in policy affecting affiliation and recognition and in turn affecting students and examination — Relief and directions: As per changed policy decision, number of pharmacy colleges in each district was restricted to two. Said Policy dt. 15-5-2020 was set aside by High Court in respect of petitioners therein. State Government also vide Noti. dt. 19-3-2021, had granted conditional affiliation after considering the recommendations made by the Affiliation Committee. In the peculiar facts of the case, the petition was allowed. R-1 University directed to grant affiliation to the petitioner colleges for the academic year 2020-21 and also permit the students of the petitioner colleges to participate in the special examinations to be organised by R-1 University for the academic year 2020-21. [VIIT Pharmacy College v. Dr A.P.J. Abdul Kalam Technical University, (2021) 10 SCC 513] 

Insolvency and Bankruptcy Code, 2016 — S. 29 — Claims pending adjudication — Reflection of, in the information memorandum as other creditor claims (claims under adjudication) — Information memorandum: The purpose of memorandum is only to provide relevant information regarding the financial position of the company in question and it is not about deciding the claim or disregarding the claim amount, if it exists in law. Further, the resolution professional has no authority/power to accept or disallow the claims and the appellant’s claim would not get extinguished unless it is adjudicated upon by a competent forum or by operation of law. [NTPC v. Rajiv Chakraborty, (2021) 10 SCC 480]

Insolvency and Bankruptcy Code, 2016 — Ss. 30(2), 31 and 61(3) — Jurisdiction of NCLT/NCLAT vis-à-vis resolution plan — Restrictions upon — Equity jurisdiction — Non-availability of: Neither the adjudicating authority nor the appellate authority i.e. NCLT/NCLAT, held, have jurisdiction in equity. Their jurisdiction arises within and as a product of a statutory framework. Under the Indian insolvency regime, a conscious choice has been made by the legislature to not confer any independent equity based jurisdiction on the adjudicating authority and appellate authority. [Pratap Technocrats (P) Ltd. v. Reliance Infratel Ltd. (Monitoring Committee), (2021) 10 SCC 623]

Insolvency and Bankruptcy Code, 2016 — Ss. 8 and 9 — Application for initiation of corporate insolvency resolution process (CIRP) by operational creditor: Once the operational creditor has filed an application which is otherwise complete, the adjudicating authority has to reject the application under S. 9(5)(ii)(d) if a notice has been received by operational creditor or if there is a record of dispute in the information utility. What is required is that the notice by the corporate debtor must bring to the notice of operational creditor the existence of a dispute or the fact that a suit or arbitration proceedings relating to a dispute is pending between the parties. All that the adjudicating authority is required to see at this stage is, whether there is a plausible contention which requires further investigation and that the dispute is not a patently feeble legal argument or an assertion of fact unsupported by evidence. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has no other option but to reject the application. [Kay Bouvet Engg. Ltd. v. Overseas Infrastructure Alliance (India) (P) Ltd., (2021) 10 SCC 483]

T.N. Highways Act, 2001 (34 of 2002) — S. 28(2)(ii) — Show-cause notice issued by State Government officer concerned in respect of encroachment over property comprised in national highway located in the State: Notice based on delegation of power of development and maintenance thereof by Central Government to the State Government authority is without jurisdiction under S. 5 of the National Highways Act, 1956. There are specific provisions dealing with removal of encroachments on national highways contained in S. 26 of the Control of National Highways (Land and Traffic) Act, 2002. National highways are deemed to be properties of Central Government. [Gunasekaran v. State of T.N., (2021) 10 SCC 505]

T.N. Urban Land (Ceiling and Regulation) Repeal Act, 1999 (15 of 1999) — S. 3 — Ingredients of, enumerated: Expression “taking over possession”, held, is the key thing under S. 3 of the Repeal Act.  Person seeking restoration of land under S. 3 of the Repeal Act, thus held, must plead and prove that possession was not taken over. [State of T.N. v. M.S. Viswanathan, (2021) 10 SCC 614]

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