2022 SCC Vol. 5 Part 1

SCC Part

2022 SCC Vol. 5 Part 1 encapsulates, a very interesting decision of the Supreme Court in Gambhirdan K. Gadhvi v. State of Gujarat, (2022) 5 SCC 179 wherein the Court while dealing with Appointment of Vice-Chancellor, held, that

it cannot be made dehors the applicable UGC Regulations, even if the State Act concerned prescribes diluted eligibility criteria vis-à-vis the criteria prescribed in the applicable UGC Regulations.

Short Notes: 3


 

Architects Act, 1972 — Ss. 45, 21 and 22 — Architectural education — Power of Council of Architecture to prescribe standards under the Architects Act, 1971: It is clear from the scheme of the Act that the Council of Architecture may prescribe minimum standards of architectural education, either by way of regulations issued under S. 45(2) or even otherwise. It is only in cases where the Council chooses to prescribe standards in the form of regulations that the requirement of approval of the Central Government under S. 45(1) would become necessary but when it comes to prescription of professional conduct, it can only be done by way of Regulations and thus, the said requirement would become mandatory. [Council of Architecture v. Academic Society of Architects, (2022) 5 SCC 161]

Consumer Protection — Consumer/Consumer Dispute/Locus Standi — “Commercial purpose” — What is and when is not a bar to seeking relief under/invocation of Consumer Protection Act: Whether a transaction is for a commercial purpose would depend upon the facts and circumstances of each case. However, ordinarily, “commercial purpose” is understood to include manufacturing/industrial activity or business-to-business transactions between commercial entities; that the purchase of the good or service should have a close and direct nexus with a profit-generating activity; that the identity of the person making the purchase or the value of the transaction is not conclusive for determining the question as to whether it is for a commercial purpose or not. What is relevant is the dominant intention or dominant purpose for the transaction and as to whether the same was to facilitate some kind of profit generation for the purchaser and/or their beneficiary. Further, when a person avails a service for a commercial purpose, to come within the meaning of “consumer” as defined in the 1986 Act, he will have to establish that the services were availed exclusively for the purposes of earning his livelihood by means of self-employment. There cannot be any straitjacket formula and such a question will have to be decided in the facts of each case, depending upon the evidence placed on record. [Shrikant G. Mantri v. Punjab National Bank, (2022) 5 SCC 42]

Education Law — Officers/Staff, Faculty, Etc. of An Educational Institution —Governing/Administrative Staff — Chancellor/Vice-Chancellor — Appointment of Vice-Chancellor: Appointment of Vice-Chancellor, held, cannot be made dehors the applicable UGC Regulations, even if the State Act concerned prescribes diluted eligibility criteria vis-à-vis the criteria prescribed in the applicable UGC Regulations. State Act if not on a par with the UGC Regulations, held, must be amended to bring it on a par with the applicable UGC Regulations. Until then, it is the applicable UGC Regulations that shall prevail. Being subordinate legislation, UGC Regulations become part of the Act.  In case of any conflict between the State legislation and the Central legislation, Central legislation i.e. the applicable UGC Regulations in the present case, shall prevail by applying the principle of repugnancy under Art. 254 of the Constitution as the subject “education” is contained in the Concurrent List of Sch. VII of the Constitution. Furthermore, the Search Committee, held, has no jurisdiction to prescribe any diluted eligibility criteria, which do not strictly comply with the applicable UGC Regulations. Further held, State of Gujarat and all universities thereunder are bound by the UGC Regulations 2010/2018. [Gambhirdan K. Gadhvi v. State of Gujarat, (2022) 5 SCC 179]

Environment Law — Forests, Wildlife and Zoos — Mining and Industry in Forest Area — Kuldiha Wildlife Sanctuary eco-sensitive zone: As elephant corridor is used round the year for movement of elephants, herbivores and cats, directions issued regarding regulation of mining of minor minerals (97 stone quarries) and remedial plan. [Binay Kumar Dalei v. State of Odisha,(2022) 5 SCC 33]

Land Acquisition Act, 1894 — S. 23 — Determination of compensation: S. 23(1) “thirdly” and “fourthly” concerning “severance” and “injurious affection”, respectively, distinguished. S. 23(1) “fourthly” and “sixthly” dealing with expressions “earnings” and “profits”, respectively, distinguished. Principles clarified regarding applicability of these particular clauses of S. 23 in computation of compensation. [Walchandnagar Industries Ltd. v. State of Maharashtra, (2022) 5 SCC 71]

Motor Vehicles Act, 1988 — Ss. 166 and 168 — Just compensation — Selection of multiplier: Applying split multiplier i.e. one multiplier up to date of retirement and another multiplier after retirement of deceased is not permissible. Only one multiplier is to be applied keeping in view age of the deceased based on principles laid down by the Supreme Court. [R. Valli v. T.N. State Transport Corpn. Ltd., (2022) 5 SCC 107]

Practice and Procedure — Delay/Laches/Limitation — Extension of limitation period for all proceedings before courts and tribunals due to COVID-19 Pandemic directed by Supreme Court: Scope and Effect of extension of limitation period for all proceedings before courts and tribunals due to COVID-19 Pandemic directed by Supreme Court, explained. These principles are equally applicable to commercial disputes as specified in the Commercial Courts Act, 2015. [Prakash Corporates v. Dee Vee Projects Ltd., (2022) 5 SCC 112]

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 — S. 13(8) r/w Ss. 13(2), 13(4) and 17 — Public auction/Sale of mortgaged property/secured asset: Borrower’s offer/tender of reserve price/highest bid is not sufficient to stall auction-sale when dues payable exceed such price. Release of secured/mortgaged property to borrower on payment of highest bid in such a case is not permissible. Sale of mortgaged/secured property is not considered as a discharge of entire liability outstanding in such a case. [Bank of Baroda v. Karwa Trading Co., (2022) 5 SCC 168]

Service Law — Compulsory Retirement — Nature and object: Compulsory Retirement is not punitive, stigmatic or implying any suggestion of misbehaviour but passed in public interest on basis of subjective satisfaction of Government. Order of compulsory retirement, reiterated, has to be passed on basis of entire service record, though recent reports carry their own weight. Further held, even uncommunicated adverse remarks can be considered. [Central Industrial Security Force v. Om Prakash, (2022) 5 SCC 100]

Service Law — Promotion — Criteria/Eligibility — Seniority-cum-merit — Manner in which said criterion is to be applied — Merit — What is — Unblemished service record: For promotion, despite difficulty in encapsulating parameters for “merit”, unblemished service record of employee could be significant marker. Marred service record, though not an insurmountable bar, must carry consequences, and could be a comparative disadvantage in promotion for selection post. [Rama Negi v. Union of India, (2022) 5 SCC 150]

Service Tax — Concession/Exemption/Incentive/Rebate/Subsidy — Circular No. 89/7/2006 dt. 18-12-2006 — Exemption from service tax under — Scope of: Fees to which exemption applicable and not applicable, clarified. Exemption of service tax as per 2006 Circular, held, applies only in respect of statutory fees mandatorily collected, deposited into the Government treasury and used for performing activities as per the provisions of the relevant statute. If any authority performs a service, which is not in the nature of a mandatory statutory activity and the same is undertaken for consideration, then in such cases, service tax would be leviable, if the activity undertaken falls within the ambit of a taxable service. Thus, held, market fees collected by Agricultural Produce Market Committees (appellant) from traders for temporary storage of agricultural goods in their market, on basis of enabling non-mandatory statutory provisions, held, not exempt from service tax. [Krishi Upaj Mandi Samiti v. CCE & Service Tax, (2022) 5 SCC 62]

Trade Marks Act, 1999 — Ss. 29(2)(c), 29(3) and 29(4) — Trade mark — Infringement: While S. 29(2) deals with those situations where the trade mark is identical or similar and the goods covered by such a trade mark are identical or similar, S. 29(4) deals with situations where though the trade mark is identical, the goods or services are not similar. When the mark is both identical to registered trade mark and used in relation to identical goods/services, S. 29(2)(c) and presumption under S. 29 (3) will be applicable, as opposed to S. 29(4). [Renaissance Hotel Holdings Inc. v. B. Vijaya Sai, (2022) 5 SCC 1]

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