Case BriefsSupreme Court

Supreme Court: While reversing the impugned decision of the Bombay High Court, M.R. Shah* and B.V. Nagarathna, JJ., held that the prices mentioned in the Ready Reckoner cannot be the basis for determining compensation for the land acquired under the Land Acquisition Act, 1894. 

By the instant appeal, Bharat Sanchar Nigam Limited (BSNL) had assailed the impugned order of the Bombay High Court enhancing amount of compensation for the acquired land by mainly relying upon the prevailing Ready Reckoner rates of the land. 

Background  

The respondents’ land was acquired by the State Government for BSNL. The Land Acquisition Officer declared the award determining the total compensation at Rs.14,33,703/- (at Rs.13.32 per sq. ft.). At the instance of the respondents, a reference was made to the Reference Court, which enhanced the amount of compensation to Rs.21/- per sq. ft.  

In appeal, the Bombay High Court enhanced the amount of compensation to Rs.174/- per sq. ft. (more than 800% of the Reference Court compensation and about 1300% of the compensation awarded by the Land Acquisition Officer).  

The Rule for Determination of Compensation  

In Jawajee Nagnatham v. Revenue Divisional Officer, A.P., (1994) 4 SCC 595, and Krishi Utpadan Mandi Samiti v. Bipin Kumar, (2004) 2 SCC 283, the Court while determining whether the prices mentioned in the Ready Reckoner can be the basis for determining the compensation for the land acquired under the Land Acquisition Act had observed and held that the amount of compensation for the land under the Land Acquisition Act is determined by adopting the method of valuation namely,  

(1) opinion of experts;  

(2) the price paid within a reasonable time in bona fide transactions of purchase of the land acquired or the land adjacent to the land acquired and possessing similar advantages; and  

(3) a number of years purchase of the actual or immediately prospective profits of the land acquired.  

It was observed that in determining the market value, the Court has to take into account either one or the other of the three methods to determine the market value of the land appropriate to the facts of a given case to determine the market value. Subsequently, in Lal Chand v. Union of India, (2009) 15 SCC 769, the Court observed that the market value of the land under Section 23 of the Land Acquisition Act cannot be fixed on the basis of the rates mentioned in the Basic Valuation Registers’ maintained for the purpose of collection of proper stamp duty.  

Following the aforementioned views, the Court opined that the prices mentioned in the Ready Reckoner for the purpose of calculation of the stamp duty, which are fixed for the entire area, cannot be the basis for determination of the compensation under the Land Acquisition Act.   

Relying on Chimanlal Hargovinddas v. LAO, (1988) 3 SCC 751, the Court opined that there may be various factors, which are required to be considered for determining the market value of the land. The market value of the land depends upon the location of the land; area of the land; whether the land is in a developed area or not; whether the acquisition is of a small plot of land or a big chunk of land and the number of other advantageous and disadvantageous factors are required to be considered.  

Hence, the Court held that there cannot be a uniform market value of the land for the purpose of determination of the compensation for the land acquired under the Land Acquisition Act and that the market value of the different land varies from place to place and it depends upon various factors as observed hereinabove.  

Analysis of the Impugned Decision  

Finding the impugned decision per incuriam, the Court noted that the High Court had not followed the decisions laid down in Jawajee Nagnatham (supra) and Krishi Utpadan Mandi Samiti, Sahaswan (supra), on whether while determining the compensation for the land acquired under the Land Acquisition Act, the Ready Reckoner prices, which are for the determination of the stamp duty can be considered or not. Hence, the Court held that the High Court had seriously erred in not following the aforementioned decisions which were binding on it under Article 141 of the Constitution.  

Therefore, the Court held that the High Court was wrong in enhancing the amount of compensation by 800% from Rs. 21/- per sq. ft. to Rs. 174/- per sq. ft. relying upon the rates mentioned in the Ready Reckoner. 

Conclusion  

In view of the above, the appeal was allowed and the impugned decision was set aside. The judgment passed by the Reference Court determining the compensation at Rs.21/- per sq. ft. was restored. 

[BSNL v. Nemichand Damodardas, 2022 SCC OnLine SC 815, decided on 11-07-2022]  


Judgment by: Justice M.R. Shah 


Appearance: 

For BSNL: Senior Advocate R.D. Agrawala  

For State: Advocate Sachin Patil  

For Respondents: Senior Advocate Kiran Suri 


Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsSupreme Court

Supreme Court: In a service matter where upon reshuffling and on insertion of two OBC candidates into general category select list, two general category candidates already appointed and working since long would have been expelled or removed, thereby unsettling the entire selection process, the bench of MR Shah* and BV Nagarathna, JJ exercised its powers under Article 142 of the Constitution of India to do complete justice to all the candidates involved.

Factual Background

BSNL issued notification in 2008 for filling up the post of Telecom Technical Assistants (TTAs). The recruitment was to be made by conducting a competitive examination of eligible candidates in an objective type paper of 200 marks. However, in the exam which was conducted no person from general category candidate got more than 40% marks. However, four candidates from OBC category obtained more than 33% marks.

Despite the poor pass percentage of candidates in the TTA examination, BSNL relaxed the qualifying marks by 10% for all candidates owing to the acute shortage of manpower. Accordingly, the qualifying marks were refixed at 30% for general category and 23% for reserved category.

However, two candidates, who were found to be more meritorious than the general category candidates subsequently were found eligible to be appointed against the reserved category – OBC. Therefore, the respondent No.1, who was wait listed No.1 in OBC category, approached the Tribunal for a direction to prepare a fresh list for all candidates based on relaxed standard and act on the said combined merit list. It was, inter alia, pleaded that there cannot be two cut-off marks for a single selection. It was submitted that there was an unreasonable classification by providing another set of cut-off marks and the action was discriminatory and violative of Articles 14 and 16 of the Constitution of India.

It was the case on behalf of the original applicant that those two candidates belonging to OBC category, who were having more merit were required to be adjusted against the general category seats and consequently the seats reserved for OBC category were required to be filled in from remaining reserved category candidates on merit.

Tribunal’s ruling

Tribunal directed BSNL to consider the candidature of the respondent No.1, if sufficient vacancies exist for placement of the candidates of OBC and further his candidature shall be considered against the present and future vacancies on OBC category.

High Court’s Ruling

Rajasthan High Court dismissed the writ petition preferred by BSNL by observing that the BSNL should have given appointment to the two candidates belonging to OBC category, against the vacancies which were not reserved vertically in the event of shuffling the said two persons to general category (admittedly both the candidates have secured and/or have more merit than the general category candidates, who were appointed). The High Court further observed that consequently the respondent no. 1 could have been selected against the vacancies reserved for the OBC.

Supreme Court’s Ruling

When the matter reached the Supreme Court, various decisions were taken note of wherein it was held that the reserved category candidates securing higher marks than the last of the general category candidates are entitled to get seat/post in unreserved categories. Further, even while applying horizontal reservation, merit must be given precedence and if the candidates, who belong to SCs, STs and OBCs have secured higher marks or are more meritorious, they must be considered against the seats meant for unreserved candidates. It is further observed that the candidates belonging to reserved categories can as well stake claim to seats in unreserved categories if their merit and position in the merit list entitles them to do so.

Applying the law laid down by the Supreme Court in various decisions to the facts of the case on hand, the Court noted that the two candidates, namely, Alok Kumar Yadav and Dinesh Kumar, belonging to OBC category, were required to be adjusted against the general category as admittedly they were more meritorious than the last of the general category candidates appointed and that their appointments could not have been considered against the seats meant for reserved category. Consequently, after considering their appointments in the general category, the seats meant for reserved category were required to be filled in from and amongst the other remaining reserved category candidates on merit such as respondent No.1.

“If such a procedure would have been followed, the original applicant – respondent No.1 would have got appointed on merit in the reserved category seats in the vacancy caused due to the above procedure.”

Therefore, the findings of the High Court were upheld.

The Court, however, was also alive to the fact that by reshuffling and on insertion of two OBC candidates into general category select list, two general category candidates already appointed shall have to be expelled and/or shall have to be removed, who are working since long and it may unsettle the entire selection process. Therefore, to strike a balance and to ensure that the two general category candidates, who are already appointed will not have to be removed and at the same time, respondent No.1 being a reserved category candidate also gets accommodated, if he is so appointed, in exercise of the powers under Article 142 of the Constitution of India, the Court ordered that on reshuffling and on respondent No.1 being appointed now against the reserved category seats and while the Alok Kumar Yadav and Dinesh Kumar, belonging to reserved category, to be treated in the general category seats, two candidates already appointed and belonging to general category shall not be removed. However, respondent No.1 shall get the seniority from the date the general category candidates were appointed, who were having lesser merit than Alok Kumar Yadav and Dinesh Kumar.

[Bharat Sanchar Nigam Ltd. Sandeep Choudhary, 2022 SCC OnLine SC 524, decided on 28.04.2022]


*Judgment by: Justice MR Shah


Counsels

Amicus curiae: Senior Advocate Dr. Rajeev Dhavan and Advocate Gaurav Agrawal

For BSNL: Advocate Pradeep Kumar Mathur

For respondent no.1: Advocate Puneet Jain

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: The Division Bench of K. Vinod Chandran and V. G. Arun, JJ., addressed the present petition filed by BSNL against the order of Central Administrative Tribunal.

The Tribunal had upheld the claim of the respondent for consideration of promotion as Sub Divisional Engineer (“SDE”) in 3% disability quota under the Persons with Disabilities Act, 1995; thereby allowed the O.A. while relying on the judgment in Rajeev Kumar Gupta v. Union of India, (2016) 13 SCC 153.

BSNL contended that there was a reference made by another Division Bench of the Supreme Court regarding the judgment relied on the Tribunal. Hence, the order of the Tribunal suffered with flaws.

The Court observed that the reference had now been answered by the Supreme Court in Siddaraju v. State of Karnataka, 2017 SCC OnLine SC 1940, whereby the Larger Bench had affirmed the decision of the Division Bench. Therefore, now from promotions to vacancies, even where there is no direct recruitment, the 3% quota for disabled persons has to be complied with. The Court upheld the order of the Tribunal and directed BSNL to consider the respondent for promotion to the post of SDE on completion of three years as Junior Telecom Officer (“JTO”) w.e.f. 23-07-1996. It was further directed that promotion to the post of Divisional Engineer should also be considered on the expiry of six years from the date of notional promotion as SDE.

Counsel for BSNL, T. Sanjay sought time for the purpose of enabling the organisation to get the details of the disabled persons and consider them according to their seniority to be accommodated in the 3% vacancies on All India basis, contending that now when promotions were to be made on the basis of quota of 3% as prescribed under the Act of 1995, it had become necessary that the other disabled persons, who might be entitled to be considered, also be given an opportunity.

The Court accepted the prayer of BSNL and granted it time of four months. The Court noticed that the respondent had applied for voluntary retirement from the post of Divisional Engineer and if promotions were granted to him notionally from an earlier date, fixation of salary would have to be carried out and increments too had to be granted in the higher scale. It was held that though on such notional revision the respondent would not be entitled to any arrears of pay, the retirement benefits including any ex-gratia amounts paid in lieu of voluntary retirement, should be revised in accordance with that and the arrears if any should be paid as well. [Bharat Sanchar Nigam Ltd. v. M.G Prabhakara Panicker,  2020 SCC OnLine Ker 8664, decided on 23-01-2020]

Cabinet DecisionsLegislation Updates

Union Cabinet has given its approval for Provision of Submarine Optical Fibre Cable connectivity between Mainland (Kochi) and Lakshadweep Islands (KLI Project).

The Project envisages provision of a direct communication link through a dedicated submarine Optical Fibre Cable (OFC) between Kochi and 11 Islands of Lakshadweep viz. Kavaratti, Kalpeni, Agati, Amini, Androth, Minicoy, Bangaram, Bitra, Chetlat, Kiltan&Kadmat.

Financial implications:

The estimated cost of implementation is about Rs. 1072 crore including operational expenses for 5 years. The Project would be funded by the Universal Service Obligation Fund.

Impact:

It is evident that the growth of telecom infrastructure is closely linked with economic and social development. Telecommunication connectivity plays vital role in employment generation. The present approval for Provision of Submarine Optical Fibre Cable Connectivity will vastly improve telecommunication facility in the Lakshadweep Islands by providing large bandwidth.

The submarine connectivity project will have vital role for delivery of e-Governance services at the doorstep of citizens, potential development of fisheries, coconut-based industries and high-value tourism, educational development in term of tele-education and in health care in terms of telemedicine facilities. It will help in establishment of numerous businesses, augment e-commerce activities and provide adequate support to educational institutes for knowledge sharing. The Lakshadweep Islands have the potential to become a hub of logistic services.

Implementation Strategy & Targets:

Bharat Sanchar Nigam Ltd. (BSNL) has been nominated as Project Execution Agency and Telecommunications Consultant India Ltd. (TCIL) as the Technical Consultant of the Project to assist Universal Service Obligation Fund, Department of Telecommunications. The ownership of the asset under the project will rest with USOF, the funding agency, under DoT. The project is targeted to be completed by May 2023.

Background:

Union Territory of Lakshadweep comprising a number of Islands is situated in the Arabian Sea and of immense strategic significance for India. Provision of secure, robust, reliable and affordable Telecom facilities is of utmost importance for the people living in these islands as also from a strategic point of view for the whole country.

Presently only medium of providing telecom connectivity to Lakshadweep is through satellites, but the bandwidth available is limited to 1 Gbps. Lack of bandwidth is a major constraint in providing data services, which is a pre-requisite for providing e-governance, e-education, e-banking etc. for inclusive growth of society.

Government is accordingly committed to provide telecommunication facilities in Lakshadweep Islands Planning for laying the submarine optical fibre cable to Lakshadweep Islands has been under consideration for some time. High bandwidth communication facility to the Lakshadweep Islands is also in consonance with realising the national objective of strengthening e-governance services and achieving the vision of Digital India.


Cabinet

[Press Release dt. 09-12-2020]

Jammu and Kashmir and Ladakh High Court
Case BriefsCOVID 19High Courts

Jammu and Kashmir High Court: Taking stock of how the various departments in the Union Territory of Jammu and Kashmir have responded to the situations arising due to the lockdown that has been imposed to tackle the spread of Covid-19, the Division Bench of Gita Mittal, C.J., and Rajnesh Oswal, J., specifically pointed out the damage caused to some of the internet routers installed by the BSNL in Court of Munsiff, JMIC Chenani, Udhampur, and observed that in the present times, e-connectivity to the courts is all the more important because it is an issue of ensuring access to justice to the citizens, which is a fundamental right and cannot be obstructed in any manner. The Bench also pointed out that, “In the current times of the COVID-19 pandemic and the resultant restrictions, no court can discharge essential judicial functions if there is non-availability of e-connectivity”. The Bench directed the BSNL officials to look into the issue and resolve it with utmost urgency.

Along with the aforementioned directive to the BSNL, The Court also reviewed several status reports filed by various departments like the Social Welfare Department, the Jammu and Srinagar Municipal Corporation etc. The Court was pleased to observe that the said aforementioned departments have taken adequate care to provide proper healthcare and PPE kits to frontline ‘corona warriors’ such as the doctors; and ensuring that stray animals are taken care of, respectively. The Court also noted the deterioration of 63.10 qtls of stock Atta-OMSS food grains, and directed the Food Civil Supplies and Consumer Affairs Department officials to remit the recovery amount into the Government Treasury within two days as per Food Manual of 2016. [ Azra Ismail v. Union Territory of Jammu and Kashmir, WP (C) PIL No. 4 of 2020, decided on 03-06-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

Competition Commission of India (CCI): The Bench comprising of Sudhir Mital (Chairperson), Augustine Peter and U.C. Nahta, Members, gave an order in a case filed by Bharat Sanchar Nigam Limited (BSNL) against a company providing passive infrastructure to Telecom Service Providers (TSPs), BPOs, etc. regarding primarily to denial of access to telecom sites sought by BSNL.

In the present case, BSNL (Informant) and Indus Towers Limited (OP) were the parties involved said to have entered into an Infrastructure Sharing Agreement, through which OP agreed to provide access to the Informants on its passive infrastructure.

The allegations and submissions placed on record by the Informant were that it had been asking OP to provide feasible sites since 2016 but was denied with the same. OP is a dominant infrastructure provider with around 2588 sites in Kolkata to which only 6 sites were shared with the Informant. On bringing up the issues before the OP including payment, acceptance of fixed hourly consumption methodology and acquiring of new sites by the Informant, reluctance to resolve the same by the OP was shown.

Commission on a careful consideration to the information and submission placed on record stated in regard to the dominant position of the OP that the Commission notes the underlying principle for assessing dominance of an enterprise is linked to the market power enjoyed by it. Though market share is not a conclusive indicator, it acts as potent screening criteria. The commission was prima facie satisfied that the OP held a dominant position in the relevant market.

Further, coming onto the primary allegation of denial of access to sites by OP, it was noted that the Informant had earlier placed a request for 6 operational towers which implies that Informant was aware of the process for site requests. The access pending for some sites was because there were certain ongoing issues with the procedure. Therefore, Commission found that there were unresolved issues between the parties, which were germane for provision of services sought by BSNL.

Thus, no case within provisions of Section 4 of the act was made out and allegation of denial of access to sites remained unsubstantiated. [BSNL v. Indus Towers Limited,2018 SCC OnLine CCI 85, Order dated 09-11-2018]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench comprising of Dharam Chand Chaudhary and Ajay Mohan Goel, JJ., addressed a writ petition concerning the status of connectivity in tribal area.

The Hon’ble High Court served a notice to the Respondents – BSNL to file a report along with the required steps in regard of the connectivity in tribal area of Lahaul and Spiti, Kinnaur, Chamba District i.e. Killar and Bharmaur area. For the same purpose if any other steps are also to be taken in order to improve the connectivity in the stated areas then the Court shall be apprised for the same.

The other point of concern raised and also has to be taken care of by the Respondent 4 are the postal services in the stated tribal areas. A report has to be filed on the availability of the postal services in regard to the shortage of postal stamps, postcards, etc. The said issue of postal services was raised due to acute shortage of postal stamps and postcards being noticed in the post office Hikkim, District Lahul and Spiti, the highest post office in the world.

Therefore, the Hon’ble bench of judges has asked to file a report and take necessary actions, needed, for the raised issues and concerns for the improvement of the connectivity in tribal areas. [Virender Thakur v. BSNL,2018 SCC OnLine HP 824, Order dated 22-06-2018]

Case BriefsHigh Courts

Madras High Court: The Single Judge Bench of S.S.Sundar, J. quashed the criminal complaint against BSNL employees who had put smiling emoji with tears in response to a video footage posted by the second respondent on the official WhatsApp group.

The second respondent (the applicant) posted a video footage of three customers expressing their grievance about the BSNL coverage on the official WhatsApp group which was intended to be used by the members for sharing of any innovative works or ideas for improving the quality of service of BSNL. The conversation was taken as an act to degrade the indoor staff by the petitioners who then along with few others have posted an emoji, namely, a smiling face with tears. They requested the members of SNEA by sending similar emojis in the ‘WhatsApp’ group to be shared by other members of the group. Annoyed by this, the second respondent filed the complaint under various provisions.

The Court said that when it is accepted that an emoji is sent to express one’s feeling about something, it cannot be treated as an overt act on others. It is a comment that may be intended to ridicule or to show one’s disapproval in a given context. Such emojis would not hit Section 67 of IT Act as its object is concerned with publication revealing an overt sexual interest or desire or encouraging an excessive interest in sexual matters. Further, the Court found that the act under consideration may offend the second respondent but it does not attract Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act, 1998. As it was also not the case in the complaint that the smiley was intended to humiliate the second respondent for her being a member of SC/ST, the complaint under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 was not sustained. Court concluded that everyone has a right to express their feelings and share their idea. Every person has got indefeasible right to express what he feels. However, on Court’s insistence, the petitioners through an affidavit expressed their regret over posing of such smileys. After that Court decided that the matter should rest here and it will be neither in the interest of justice to permit such complaints to stay. [I. Linga Bhaskar v. The State through the Inspector of Police, CRL.O.P.(MD) No. 3110 of 2017 and Crl.M.P. (MD) Nos. 2366 and 6773 of 2017, order dated 05.06.2018]