2022 SCC Vol. 5 Part 2

SCC Part

Civil Procedure Code, 1908 — Or. 41 Rr. 4 & 33, Ss. 96, 100 and Or. 20 R. 18 — Partition suit — Appeal — Non-appealing plaintiffs: Some of plaintiffs whose claim was denied by trial court and who had not challenged same by way of appeal before first appellate court, held, are entitled to relief in second appeal. In a partition suit, all parties stand on the same pedestal and every party is a plaintiff as well as a defendant. Position of plaintiff and defendant can be interchangeable. Trial court could grant relief even to non-appealing plaintiffs and make an adverse order against all defendants and in favour of all plaintiffs. Merely because trial court had not granted relief in favour of some of plaintiffs, would not come in the way in High Court allowing their claim. [Azgar Barid v. Mazambi, (2022) 5 SCC 334]

Constitution of India — Art. 226 — Maintainability of writ petition — Proceedings under SARFAESI Act: If proceedings are initiated under the SARFAESI Act and/or any proposed action is to be taken and the borrower is aggrieved by any of the actions of the private bank/bank/ARC, borrower has to avail the remedy under the SARFAESI Act and no writ petition would lie and/or is maintainable and/or entertainable. [Phoenix ARC (P) Ltd. v. Vishwa Bharati Vidya Mandir, (2022) 5 SCC 345]

Constitution of India — Arts. 32 and 226 — Issue as to legislative competence — Maintainability: Matter already standing determined by a Constitution Bench of the Supreme Court. [M.C. Mehta v. Union of India, (2022) 5 SCC 291]

Constitution of India — Sch. VII List I Entry 84 and List II Entry 51: State Legislature, held, has no legislative competence to levy tax on waste liquor after distillation which is not suitable for human consumption. [State of Orissa v. Utkal Distilleries Ltd., (2022) 5 SCC 326]

Criminal Procedure Code, 1973 — S. 190(1)(b) r/w Ss. 173, 193 & 319 and Ss. 161 & 164 — Taking cognizance of offence on basis of police report — Protest petition: Even after process has been issued against some accused on one date, held, process can still be issued by the Magistrate against some other person against whom there is some material on record, but whose name is not included as accused in the charge-sheet. Lastly, Magistrate or court need not wait till stage of S. 319 CrPC to exercise such power. [Nahar Singh v. State of U.P., (2022) 5 SCC 295]

Foreword to a book: A foreword to the book “Competition Law” by Cyril Shroff. Foreword to competition law by Cyril Shroff, (2022) 5 SCC (J-25)]

Foreword to a book: A foreword to the book “Criminal Law and Criminal Justice: An Introduction to the Writings by Justice M.N. Venkatachaliah, Foreword to Criminal Law and Criminal Justice: An Introduction to the Writings by Justice M.N. Venkatachaliah, (2022) 5 SCC (J-22)]

Foreword to a book: A foreword to the book “Transgenders and the Law” by Justice A.K. Sikri. Foreword to transgenders and the law by Justice A.K. Sikri, (2022) 5 SCC (J-28)]

Government Contracts and Tenders — Formation of Government Contract — Modes of entering into a Government Contract — Public Auction/Tender — Award/Non-award of contract — Judicial review: Author of the tender document, reiterated, is taken to be the best person to understand and appreciate its requirements. Thus, if the interpretation of such author is manifestly in consonance with the language of the tender document or subserving the purchase of the tender, the Court would prefer to keep restraint. Further, the technical evaluation or comparison by the Court is impermissible. Thus, even if the interpretation given to the tender document by the person inviting offers is not as such acceptable to the constitutional court, that, by itself, would not be a reason for interfering with the interpretation given, so long as such interpretation is not arbitrary or whimsical. [Agmatel India (P) Ltd. v. Resoursys Telecom], (2022) 5 SCC 362]

Petroleum and Natural Gas Regulatory Board Act, 2006 — S. 16 — Noti. dt. 12-7-2010: Directions regarding adjudication of pending and new applications by Board i.e. post S. 16 coming into force, issued. [Petroleum & Natural Gas Regulatory Board v. Indraprastha Gas Ltd., (2022) 5 SCC 292]

Petroleum and Natural Gas Regulatory Board Act, 2006 — S. 16 r/w S. 17 — “Deemed authorisation” clause under S. 16 proviso — Scope of — Deemed authorisation: If one reads S. 16 proviso in isolation, the inference undoubtedly would be that every entity which had started laying and building pipelines and networks was the recipient of the deemed authorisation clause i.e. the provision sought to retrospectively regularise activities by all entities, however, such a plain and facial construction is unacceptable. Thus held, S. 16 proviso is not unqualified. The “deemed authorisation” clause is subject to other provisions of Ch. IV and S. 17 is one such provision under Ch. IV. Further, the scheme of S. 17 intrinsically classifies the two i.e. Central Government authorised entities, and others and the underlying basis for this statutory classification is that only entities which had been cleared or authorised by the Central Government prior to the coming into force of the Act were deemed to have authorisation under the Act, and therefore, had to furnish certain details. As with regard to the others i.e. entities not authorised by the Central Government, fresh applications were necessary which were to be assessed by the Board on a case-by-case basis and in accordance with uniform standards. [Adani Gas Ltd. v. Union of India, (2022) 5 SCC 210]

Service Law — Promotion — Criteria/Eligibility — Length of service/qualifying service — Time-bound promotion — Entitlement to: Services rendered by employee on work-charge basis may considered for computing 12 yrs of service for grant of time-bound promotion (TBP). [State of Maharashtra v. Madhukar Antu Patil, (2022) 5 SCC 322]

Service Law — Promotion — Criteria/Eligibility — Qualification/Experience — Classification based on nature of experience — Validity of: Policy decision to provide incentive marks for specified work experience inside the State and not for such work experience from some other State due to work pattern peculiarities and socio-economic/geographical peculiarities of the State, held, not arbitrary. Courts should be slow in interfering with policy matters unless the policy is found to be palpably discriminatory and arbitrary. [Satya Dev Bhagaur v. State of Rajasthan, (2022) 5 SCC 314]

Service Law — Regularisation — Entitlement to regularization: In this case, respondents were appointed on contractual basis for period of 11 months (which was continued from time to time), on fixed salary for temporary project. Their employment was continued based on interim order of High Court. It was held that respondents were appointed on temporary unit which was not regular establishment and posts on which they were appointed and continued to work were not sanctioned posts. Hence, impugned judgment directing State to consider cases of respondents for regularisation sympathetically and if necessary, by creating supernumerary posts, held, unsustainable and without jurisdiction. [State of Gujarat v. R.J. Pathan, (2022) 5 SCC 394]

Territorial Jurisdiction of Courts in Domestic Arbitration: In this article, issue of territorial jurisdiction of courts in arbitrations in India has been discussed. Territorial Jurisdiction of Courts in Domestic Arbitration: The Saga of seat and venue continues by Arjun Krishnan and Ankur Singh, (2022) 5 SCC (J-1)]

Treatment of Personal guarantors under the Indian insolvency regime: This article seeks to delineate the position of personal guarantors under the Insolvency Code and to discuss the treatment of promoters as personal guarantees under the Indian insolvency regime in light of the judgment in Lalit Kumar Jain, (2021) 9 SCC 321 and other relevant decisions. General principles relating to the treatment of Personal guarantors under the Indian insolvency regime by Sriram Venkatavaradan and Saai Sudharsan Sathiyamoorthy, (2022) 5 SCC (J-8)]

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