SCC Part
Cases ReportedSupreme Court Cases

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)]

Cases ReportedSupreme Court Cases

Building and Other Construction Workers’ (Regulation of Employment and Conditions of Service) Act, 1996 — SOR and Ss. 1(4), 1(5), 2(1)(d), 3, 4, 5, 6, 7, 11, 12, 13, 14, 15, 18, 22, 24, 60, 62, Chs. VI and VII — Effective and meaningful implementation of: Directions issued with regard to effective and meaningful implementation of the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 and the Building and Other Construction Workers’ Welfare Cess Act, 1996. [National Campaign Committee for Central Legislation on Construction Labour (NCC-CL) v. Union of India, (2018) 5 SCC 607]

Civil Procedure Code, 1908 — Or. 7 R. 11, S. 11 and Or. 2 R. 2: Rejection of plaint on grounds of res judicata, which required consideration of pleadings in written statement, is permissible. While considering application for rejection of plaint, averments in plaint must be considered and not what is stated in written statement. [Soumitra Kumar Sen v. Shyamal Kumar Sen, (2018) 5 SCC 644]

Companies Act, 2013 — Ss. 58(2) and (4) — Public limited company — Free transfer of shares — Right of public limited company to refuse registration of transfer of shares on sufficient: Expression “without sufficient cause” does not mean only illegal transfers or transfers impermissible under any law, can be refused. Transfer can be refused on any other sufficient cause. [Mackintosh Burn Ltd. v. Sarkar & Chowdhury Enterprises (P) Ltd., (2018) 5 SCC 575]

Criminal Procedure Code, 1973 — S. 482Quashment of FIR: S. 482 has to be cautiously utilised while quashing FIR. In this case of abetment of suicide, High Court prematurely quashed FIR without proper investigation having been conducted by police. Hence, impugned judgment of High Court set aside with directions to investigating authorities to complete investigation with promptness and to take it to its logical conclusion. [Munshiram v. State of Rajasthan, (2018) 5 SCC 678]

Criminal Procedure Code, 1973 — Ss. 156(3) vis-à-vis 202(1) and Ch. XII vis-à-vis Ch. XIV and S. 190: Established law is that direction under S. 156(3) does not amount to taking cognizance but there being divergent views of Supreme Court as to applicability of this principle to offences under PC Act: as to whether prior sanction is required or not, before a direction can be issued under S. 156(3) CrPC vis-à-vis PC Act offences, matter referred to larger Bench. [Manju Surana v. Sunil Arora, (2018) 5 SCC 557]

Government Grants, Largesse, Public Property and Public Premises — Relief/Remedies/Moulding Relief, Judicial Review/Public Interest Litigation (PIL) — Writ jurisdiction in respect of public property: Re-auction of leased municipal property directed by High Court without adverting to efficacy of existing lease or the reliefs prayed for in the writ petition, not proper. [State of H.P. v. Ravinder Kumar Sankhayan, (2018) 5 SCC 584]

Income Tax Act, 1961 — S. 80-P r/w S. 80-P(4) coming into effect from 1-4-2007: Review petition challenging order declaring Society giving loans to members as well as general public, non-eligibile to grant of deduction, dismissed being devoid of merits. [Citizen Coop. Society Ltd. v. CIT, (2018) 5 SCC 548]

Karnataka Land Reforms Act, 1961 (10 of 1962) — Ss. 107(1)(i) and (iii) and S. 44(1): Lands which belong to Government or University as specified in the 1961 Act, held, are not within purview of the Act. [University of Mysore v. Rajaiah, (2018) 5 SCC 684]

Motor Vehicles Act, 1988 — Ss. 166 and 173 — Compensation claims under S. 166 — Proper manner of disposal: While dealing with a claim petition in terms of Section 166 of the Motor Vehicles Act, 1988, a Tribunal stricto sensu is not bound by the pleadings of the parties; its function being to determine the amount of fair compensation in the event an accident has taken place by reason of negligence of that driver of a motor vehicle. The Tribunal has to take a holistic view of the matter. A strict proof of an accident caused by a particular vehicle in a particular manner may not be possible. The claimants are merely required to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt cannot be applied. The approach of the Tribunal should be holistic analysis of the entire pleadings and evidence by applying the principles of preponderance of probability. [Mangla Ram v. Oriental Insurance Co. Ltd., (2018) 5 SCC 656]

Mysore Land Reforms Act, 1961 (10 of 1962) — Ss. 14(1), (5) and 111 — Resumption of land from tenant: In this case resumption and taking possession vide compromise was effected by Tribunal instead of through procedure contemplated under S. 14(5). Though procedure for taking possession under S. 14(5), was allegedly not complied with, but properly explained by landlord by drawing attention to compromise decree. Hence, the impugned order holding that procedure contemplated under S. 14(5) was not followed, set aside. [Raghunath Prasad Pande v. State of Karnataka, (2018) 5 SCC 594]

Penal Code, 1860 — S. 302 — Murder trial: In this case strained relations between couple and their families, leading to murder of husband and his sister, by his wife and her family members. Evidence of ocular witnesses, father and brother of deceased husband, and daughter of deceased sister of husband, was found consistent and inspired confidence. Evidence established guilt of accused beyond reasonable doubt and corroborates with that of medical evidence and motive of crime was very clear. Hence, there was no error in appreciation of evidence and conviction confirmed. [Ganapathi v. State of T.N., (2018) 5 SCC 549]

Protection of Children from Sexual Offences Act, 2012 — Chs. II to VIII — Sexual offences against children: Directions issued for speedy disposal of cases involving sexual offences against children. [Alakh Alok Srivastava v. Union of India, (2018) 5 SCC 651]

Representation of the People Act, 1951 — Ss. 86, 81, 82 and 117 — Maintainability of election petition: Where Court granted time to cure defects raised by Registry, and such defects were rectified within stipulated time, election petition not barred by limitation under S. 81(1). Correctness of translated copy of vernacular language cannot be decided at threshold level but it is subject of trial. When copies of materials relied upon are reproduced in CD and its transcription is provided, phone (used for conversation) and supply of chip was not necessary. Such step would not impair defence of successful candidate. [Abdulrasakh v. K.P. Mohammed, (2018) 5 SCC 598]

Security Interest (Enforcement) Rules, 2002 — R. 9: In this case the requirement specified under R. 9(4) was to deposit balance 75% purchase price within 15 days of confirmation. It was clarified that day of confirmation was not same as day of auction. Said period of 15 days would start from day of confirmation of sale by secured creditor and it does not start from day of auction. On day of auction authorised officer only accepts or confirms highest bid which is not same as confirmation of sale under R. 9(4). Rr. 9(2), (4), (5) & (6) supports above interpretation. [Rakesh Birani v. Prem Narain Sehgal, (2018) 5 SCC 543]

Cases ReportedSupreme Court Cases

Civil Procedure Code, 1908 — S. 9 — Abuse of process of court — Suppression of material facts: In this case, appellant-plaintiff filed suit for specific performance of contract against D-1 on basis of a power of attorney by suppressing material facts that title and possession regarding said suit land already stood adjudicated in favour of another person D-2 and not D-1, hence, High Court order setting aside decree of specific performance, affirmed. [Baxis Singh v. Sukhdev Singh], (2018) 5 SCC 338]

Civil Procedure Code, 1908 — S. 9 — Civil suit — Maintainability: Dispute principally as to succession to property, turning on question of legitimacy/legal status of parties concerned as legal heirs of deceased person concerned, could only be resolved vide a civil suit. [R. Kasthuri v. M. Kasthuri, (2018) 5 SCC 353]

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) — S. 3(1)(ii) — Preventive detention order under: COFEPOSA does not require detaining authority to specify period for which a detenu is required to be detained, hence, order of detention, not rendered invalid/illegal in absence of such specification. [State of T.N. v. Kamala], (2018) 5 SCC 322]

Constitution of India — Art. 226 — Exercise of power by High Court — Approach: considerations therein: In this case, Division Bench by impugned judgment without considering background of case and reasons which weighed with Single Judge while passing order, modified interim order passed by Single Judge directing payment of salary considering long service of 30 yrs rendered by appellant, to effect that status quo prevailing on date of filing of writ petition to be maintained i.e. non-payment of salary to appellant on account of impugned orders, which was not proper. [Aparbal Yadav v. State of U.P., (2018) 5 SCC 363]

Constitution of India — Art. 32 — PIL — Maintainability: Petitioner’s main prayer seeking: (a) direction for CBI investigation into allegations of reported cases of oil adulteration by mafias, and (b) mandamus directing direct transfer of cash subsidy to intended beneficiaries of kerosene oil, in lieu of kerosene itself, on basis of Aadhaar card or through PDS or other credible mechanism. Petition disposed of with certain directions and clarifications. Initial inquiry conducted by petitioner revealing some truth in allegations. Petitioner was given liberty to approach oil companies with material for redressal of his grievance as per law. However, it was clarified that no opinion was expressed on merits of claim. [Seema Upadhyay v. Union of India, (2018) 5 SCC 325]

Constitution of India — Arts. 21 and 32 — Abduction, rape and murder of 8 yr old minor girl by juvenile accused: In this case there was apprehension of no fair trial as members of Bar were protesting against prosecution of the accused, and their implication/prosecution sought to be given communal overtones. Chargesheet was filed and there was possibility of filing of supplementary charge-sheet. Prayer for transfer of case from a court in J&K to a court in Chandigarh kept open and notice issued. Prayer for providing security to victims’ family members, her counsel and another person assisting them, was acceptable to State Government and accordingly directed. Prayer for strengthening of security in juvenile home, where juvenile accused lodged, accepted and accordingly directed, but with clarification that this shall be done keeping in view care and protection of children. [Mohd. Akhtar v. State of J&K, (2018) 5 SCC 336]

Criminal Trial — Investigation — Videography: In the light of importance of capturing crucial evidence in credible manner, suggestions made by MHA considering report and suggestion of Committee for a centrally driven action plan and phased manner of implementation, accepted and consequential directions issued in the matter. [Shafhi Mohammad v. State of H.P., (2018) 5 SCC 311]

Election — Local Government/Bodies/Municipalities/Panchayats/Autonomous and Other Bodies — Conduct of Election: Incidents of violence were allegedly taking place when candidates went to obtain and file nomination papers. In such situations statute empowered the Election Commissioner to pass appropriate orders. Hence, parties were given liberty to approach State Election Commission and Election Commission was directed to dispose of their grievance as per law. [Bharatiya Janata Party v. State of W.B., (2018) 5 SCC 365]

Hindu Marriage Act, 1955 — Ss. 24 and 13 — Interim maintenance under S. 24 — Effect of maintenance already granted under S. 125 CrPC: Maintenance granted by Family Court under S. 24, 1955 Act would supersede maintenance granted under S. 125 CrPC. [Sanjay Kumar Sinha v. Asha Kumari, (2018) 5 SCC 333]

Supreme Court Rules, 2013 — Or. VI Rr. 1, 2 and 4: Constitution of Benches of Supreme Court is exclusively in domain of prerogative powers of Chief Justice. [Asok Pande v. Supreme Court of India, (2018) 5 SCC 341]

Tenancy and Land Laws — Judicial Interference/Validity — Necessary/Proper parties: In this case, appellant’s land purportedly stood vested in Government. Government executed deeds and transferred said land to tenants R-1 and R-2 as per statutory objective of W.B. Land Reforms Act. Earlier writ petition and resultant transferred proceedings before Land Tribunal concerning challenge to such vesting, allowed in appellant’s favour but in said writ petition and proceedings before Tribunal, R-1 and R-2 not made parties and not heard. High Court by impugned order allowed subsequent writ petition of R-1 and R-2 and remanded matter to Tribunal for giving them opportunity of hearing. Said order of high Court not interfered with. [Ashim Ranjan Das v. Shibu Bodhak, (2018) 5 SCC 356]

Cases ReportedSupreme Court Cases

Role of The National Courts of the Seat in International Arbitration: This article is the keynote address at the 10th Annual International Conference of the Nani Palkhivala Arbitration Centre, New Delhi, 17-2-2018. [The Role Of The National Courts Of The Seat In International Arbitration by Chief Justice Sundaresh Menon, (2018) 4 SCC (J-1)]

Penal Code, 1860 — S. 302 or S. 304 — Parameters to be taken into consideration while deciding question as to whether a case falls under S. 302 or S. 304: The parameters which are to be taken into consideration while deciding the question as to whether a case falls under Section 302 IPC or Section 304 IPC, are as follows:(a) The circumstances in which the incident took place; (b) The nature of weapon used; (c) Whether the weapon was carried or was taken from the spot; (d) Whether the assault was aimed on vital part of body; (e) The amount of the force used; (f) Whether the deceased participated in the sudden fight; (g) Whether there was any previous enmity; (h) Whether there was any sudden provocation; (i) Whether the attack was in the heat of passion; and (j) Whether the person inflicting the injury took any undue advantage or acted in the cruel or unusual manner. [Lavghanbhai Devjibhai Vasava v. State of Gujarat, (2018) 4 SCC 329]

Indian Medical Council Act, 1956 — Ss. 10-A and 33 — Time Schedules: Amendment of Time Schedules under all MCI Regulations concerned, approved in Ashish Ranjan, (2016) 11 SCC 225, not interfered with. Applicant consortium given limited liberty to approach Supreme Court if there is some difficulty in getting students from State list or All India list. Ashish Ranjan v. Union of India, (2018) 4 SCC 333]

Narcotic Drugs and Psychotropic Substances Act, 1985 — Ss. 52-A, 67, 8/18 and 29 — Search and seizure: Due to discrepancies present in prosecution case, reversal of his conviction under Ss. 8/18 and 29 for recovery of contraband allegedly from possession of respondent-accused, by High Court, affirmed. [Union of India v. Jarooparam, (2018) 4 SCC 334]

Constitution of India — Art. 226: There was challenge to order dt. 15-11-2010 of Regional Transport Authority (RTA) whereby it declared 81 licences as fake licences, after a delay of more than 5 yrs. High Court of Delhi gave liberty to challenge said order of RTA by filing fresh writ petition under Art. 226 before High Court of Allahabad. Appellants after obtaining said orders of Delhi High Court filed fresh writ petition after five months. High Court of Allahabad, therefore, could not have dismissed said writ petitions on ground that there was a delay of more than 5 yrs from date of order of RTA. Hence, impugned order set aside. Matter remanded to High Court for deciding matter afresh on merit. [Arun Maan v. State of U.P., (2018) 4 SCC 339]

Industrial Disputes Act, 1947 — Ss. 17-B, 2(s) and 10 — Independent nature of proceedings under S. 17-B — Payment of full wages to workman pending proceedings in higher courts: During pendency of respondent Corporation’s appeal against finding that respondent was “workman” and reference maintainable, Supreme Court by interim order dt. 4-5-1999 directed Corporation to pay full wages last drawn by applicant on 1-9-1985 inclusive of maintenance allowance provided he was not gainfully employed elsewhere. It was held, nevertheless order dt. 4-5-1999 remained legal and valid, and being independent in nature is required to be given effect to i.e. order passed under S. 17-B does not merge with final order passed in appeal. Considering nature of controversy, long pendency of case, interim order dt. 4-5-1999 passed by Supreme Court, offer of Rs 2 lakhs made by Corporation irrespective of outcome of appeal and sum payable to applicant under various heads, applicant held entitled to Rs 7,50,000 in full and final settlement of all his claims. [Rajeshwar Mahto v. Birla Corpn. Ltd., (2018) 4 SCC 341]

Courts, Tribunals and Judiciary — Tribunals — Appointments to different Tribunals — Whether as per pre-existing procedure or as per interim procedure directed in Kudrat Sandhu, WP (C) No. 279 of 2017, order dt. 9-2-2018 (SC): Where selection process had been substantially complied with as per old procedure, or existing Selection Committee has same composition as provided in new Rules, selection procedure will continue unhindered by above interim order. Thus in case of CESTAT, DRT, DRAT, NCLAT, NCDRC, AFT and ITAT, selection/appointment would not be disturbed or would proceed to its logical conclusion. Where selection process not substantially complied with selection procedure as per interim order will apply. Thus in case of CAT, where no substantial steps are taken for appointment of administrative members, directions in interim order will apply. Where Chief Justice has nominated Chairperson for Search-cum- Selection Committee (SCSC) for making recommendations, selection process will continue and will not be affected by interim order. Thus in case of AAR, APTEL, Appellate Tribunal under SAFEMA Act, Railway Claims Tribunal, Airport Appellate Tribunal, TDSAT, selection process would continue unaffected by interim order. [Kudrat Sandhu v. Union of India, (2018) 4 SCC 346]

Armed Forces — Promotion — Non-promotion/Denial of promotion/Supersession — Promotion to post of Rear Admiral in Indian Navy — Moderation of Numerical grading by NSRO — Propriety: In this case, denial of promotion on basis of adverse remarks in ACRs for period 10-12-2007 to 28-11-2008 and consequential numerical downgrading, despite being amongst top few in batch, alleged. Tribunal while expunging adverse remarks declining to interfere with numerical gradings given to appellant for subsequent period finding that such adverse remarks had no bearing on numerical grading given for period thereafter and did not adversely affect his case from being considered for promotion. It was held, no interference with judgment of AFT called for since as rightly found one particular adverse report which stood expunged did not affect succeeding reports. Besides, though for periods from 2-1-2009 to 27-1-2012 appellant was given higher numerical grading by IO but NSRO moderated same considering overall profile of appellant which was in tune with ACRs of appellant recorded in previous years. Besides, possible that higher grading of appellant was due to his deputation during that period. System of PARB which is unique to Navy was introduced to achieve such moderation and Chief of Naval staff in his capacity as SRO/NSRO was competent to do so. Moreover, though appellant was a good officer but his assertion that prior to 2009 he was ranked No. 1 in Merit List factually incorrect. Besides, all officers who were promoted were senior to appellant and no junior had superseded him. [P.K. Banerjee v. Union of India, (2018) 4 SCC 355]

Civil Procedure Code, 1908 — Or. 26 Rr. 9, 13 and 14 — Demarcation of land — Proper procedure for — Commission to demarcate land — Need to challenge findings of Commission/cross-examine persons concerned at appropriate stage: In this case, held, demarcation as per Commission was correct. Thus, consequential finding that it was appellant Municipal Council that had encroached upon land of respondent plaintiffs, affirmed. [Municipal Council, Bawal v. Babu Lal, (2018) 4 SCC 369]

Entertainment, Amusement, Leisure and Sports — Entertainment & Leisure Establishments/Hotels/Restaurants and Tourism and Services — Licensing, Pricing and Permissible Activities — Regulation of restaurants: Bangalore City Licensing and Controlling of Places of Public Entertainment Order, 2005 issued under S. 31 of the Karnataka Police Act, 1963 regulating restaurants displaying “live band music”, “cabaret dance” and “discotheque” and imposing licence conditions dealing with public safety, comfort, convenience, morality, and law and order and said requirement of licence and its conditions, held, not violative of Arts. 14 and 19. Directions issued for strict compliance with and enforcement of said requirement and conditions. [Karnataka Live Band Restaurants Assn. v. State of Karnataka, (2018) 4 SCC 372]

Penal Code, 1860 — Ss. 307, 147, 148, 323 and 504 r/w S. 149 — Sentence — Compensation to victim — Additional higher amount of fine — Grant of: Accused persons directed to pay additional higher amount of fine to victim, in lieu of further sentence of incarceration as fact that accused persons had already undergone some period in jail, that incident occurred in year 2007 and that since parties have purchased peace, was considered. [State of Karnataka v. Kaisarbaig, (2018) 4 SCC 403]

Criminal Procedure Code, 1973 — S. 167(2) and S. 173 — Right to default bail if charge-sheet not filed within prescribed period, in this case 90 days — When accrues/becomes invocable: As State first filed application for extension of time for filing charge-sheet, that too prior to expiry of 90 days. Thereafter accused filed prayer for bail under S. 167(2) r/w S. 21(2)(b) MCOCA. It was held, only upon rejection of prayer for extension of time sought for filing charge-sheet, right in favour of accused for grant of statutory bail under S. 167(2) r/w S. 21(2)(b) MCOCA could have ignited. Unless prayer for extension of time rejected, no right would accrue in favour of accused much less to consider his application for grant of statutory bail. In such cases it is duty of court to first deal with prayer of extension of period to file charge-sheet. Further during pendency of prayer for extension of time for filing charge-sheet, supplementary charge-sheet was filed. Accused in meantime was being remanded to judicial custody. Therefore, High Court not granting relief to accused on this count upheld. [Rambeer Shokeen v. State (NCT of Delhi), (2018) 4 SCC 405]

Penal Code, 1860 — Ss. 302/149 — Formation of unlawful assembly armed with deadly weapons, with common object to commit murder — Appreciation of evidence: In this case, evidence of injured eyewitness was trustworthy, his evidence stands corroborated by another eyewitness and disclosure statement of accused leading to recovery of murder weapons. Hence, contention that complainant party were aggressors and accused acted in self-defence, rejected. Injuries sustained by accused were simple in nature, and it was not incumbent upon prosecution to explain such injuries. Therefore, conviction and sentence of imprisonment imposed upon accused, confirmed. [Dashrath v. State of Chhattisgarh, (2018) 4 SCC 428]

Constitution of India — Arts. 124 and 137 — Appointment of Judges to Supreme Court and High Courts: Primacy of judiciary in this regard, as re-affirmed in Supreme Court Advocates-on-Record Assn., (2016) 5 SCC 1. Review petitions against, rejected. [Satya Veer Sharma v. Supreme Court of India, (2018) 4 SCC 432]

Juvenile Justice (Care and Protection of Children) Act, 2015 — Ss. 4, 7, 106 and 107 — Implementation of JJ Act: Need of evaluation, assessment and social audit, stressed because in spite of several years from date of enactment of JJ Act (in its old and new avatars), it has not been effectively implemented. Laws relating to children like 2000 Act and JJ Act must be effectively implemented. State and policy-makers must realise constitutional obligation in this regard. Children deserve dignified treatment. Merely because they have no voice, does not mean that they would be compelled to live in conditions that are uncomfortable. High Courts directed to establish child-friendly courts for implementing JJ Act in its true spirit. [Sampurna Behura v. Union of India, (2018) 4 SCC 433]

Cases ReportedSupreme Court Cases

Arbitration and Conciliation Act, 1996 — S. 7(5) r/w S. 11 — Intention to incorporate arbitration clause from another agreement — When cannot be inferred: In this case agreement between appellant and respondent did not contain any arbitration clause, however, Cl. 2 of agreement provided that conditions relating to works and quality specified in agreement between Construction Contractor and employer would be binding on subcontractor/appellant and cl. 9.10 provided that terms and conditions of agreement between Contractor and employer will be applicable for items not mentioned in agreement clauses. Hence, following the ruling in M.R. Engineers and Contractors (P) Ltd., (2009) 7 SCC 696, wherein it was inter alia, held, that where a contract between the parties provides that execution or performance of that contract shall be in terms of another contract (which contains terms and conditions relating to performance and a provision for settlement of disputes by arbitration), then, terms of referred contract in regard to execution/performance alone will apply, and not arbitration agreement in referred contract, unless there is special reference to arbitration clause also, held, that arbitration clause was not intended to be made as a part of contract between appellant and respondent. Thus, appellant’s petition under S. 11 rightly dismissed by High Court. [Elite Engg. and Construction (Hyd.) (P) Ltd. v. Techtrans Construction India (P) Ltd., (2018) 4 SCC 281]

Civil Procedure Code, 1908 — Or. 43 R. 1(r) and Or. 39 R. 1 — Interference in interim order/Interlocutory Orders/Injunction/Stay: When main appeal itself is pending for consideration before High Court and order being interim in nature, interference with interim order must be declined. Expeditious disposal of first appeal on merits, emphasized. [B. Muthukrishnan v. S.T. Reddiar Educational & Charitable Trust, (2018) 4 SCC 298]

Competition Act, 2002 — Ss. 4(2)(c) Expln. (a), 2(b), (f)(ii) & (m): Abuse of dominant position by cable operators’ group by unlawful premature termination of agreement with broadcaster of a TV channel resulting in denial to broadcaster of market access, is violative of S. 4(2)(c). Words “in any manner” in S. 4(2)(c) are of wide import and should be given natural meaning. Once dominant position of the group made out on facts, question whether broadcaster is in competition with the group irrelevant for purpose of application of S. 4(2)(c). [CCI v. Fast Way Transmission (P) Ltd., (2018) 4 SCC 316]

Criminal Procedure Code, 1973 — S. 439 — Bail: Grant of bail by High Court, in a case of murder, being on a very little reference to/or discussion on merits of bail applications. Reason for release mainly one, which reason can, on a fair reading, be understood or misunderstood almost as a mitigating circumstance or a kind of a justification for murder. High Court’s order(s) set aside and bail applications restored to file of High Court, for hearing matter(s) afresh, after giving liberty to parties to file additional affidavits. [Mubin Shaikh v. State of Maharashtra, (2018) 4 SCC 312]

Family and Personal Laws — Guardians and Wards — Custody of Child/Minor — Jurisdiction/Judicial Interference/Parens Patriae Jurisdiction/Conflict of Laws/Private International Law: Principle of comity of courts or forum conveniens cannot alone determine threshold bar of jurisdiction. In these matters, paramount consideration is always best interest of child. This cannot be subject-matter of final determination in proceedings under Or. 7 R. 11 CPC. [Jasmeet Kaur v. Navtej Singh, (2018) 4 SCC 295]

Mines and Minerals (Development and Regulation) Act, 1957 — Ss. 8(2), (3), 10-B and 11 — Mining leases declared to be illegal in Goa Foundation, (2014) 6 SCC 590 — Grant of second renewal — Impermissibility of: State of Goa should have granted fresh mining leases instead of granting a second renewal. Such second renewal, held, illegal in view of Goa Foundation, (2014) 6 SCC 590. Second renewal of mining leases set aside and consequential directions also issued. [Goa Foundation v. Sesa Sterlite Ltd., (2018) 4 SCC 218]

Penal Code, 1860 — Ss. 467, 468 and 471 r/w S. 120-B — Bail — Grant of — Reasons for: Appellant-accused was facing trial under Ss. 467, 468 and 471 r/w S. 120-B IPC. His period of custody was more than one year. High Court rejected his bail application mainly on basis of FSL Report. Though case is pending for a long time, trial has not yet commenced. Evidently, co-accused was granted bail. In aforesaid circumstances, held, it is just and proper to release appellant on bail. Hence, appellant directed to be released on bail on certain conditions. [Vijay Kumar v. State of Rajasthan, (2018) 4 SCC 315]

Public Accountability, Vigilance and Prevention of Corruption — Government Contracts and Tenders — Purchase of helicopters by State Governments — Unsubstantiated and baseless allegations: In this case involving purchase of Agusta Westland helicopter by the State of Chhattisgarh, where allegations of kickbacks and deposit in foreign accounts, specific allegation of deposit in account of Chief Minister’s son were imposed. Prayer for direction for investigation into allegations, was rejected as there was nothing on record to show that said purchases could have been made at a lesser price. CAG did not attribute any extraneous consideration in deal concerned. It was clarified that Government was entitled to make choice in purchase of helicopters which were purchased after evaluation of global tenders. Son of the Chief Minister was not personally a party. Disclosure in Panama Papers is a matter which is still under investigation. Hence, petition filed by Swaraj Abhiyan seeking probe into the alleged anomalies in the purchase of Agusta Westland helicopter by the State of Chhattisgarh, dismissed. [Swaraj Abhiyan v. Union of India, (2018) 4 SCC 300]

Cases ReportedSupreme Court Cases

Inter-State Water Disputes Act, 1956 — Ss. 5, 6, 3 and 2(c): In Cauvery Water Dispute Casescase, State of Karnataka gets additional 14.75 TMC of water in light of availability of groundwater in Sate of Tamil Nadu. [State of Karnataka v. State of T.N., (2018) 4 SCC 1]

Cases ReportedSupreme Court Cases

Arbitration and Conciliation Act, 1996 — Ss. 36, 32 and 42 — Execution/enforcement of arbitral award — Court through which may be effected: Execution/enforcement of award can be done/filed anywhere in country where such decree can be executed and there is no requirement for obtaining a transfer of decree from court which has jurisdiction over arbitral proceedings/award/within whose jurisdiction award is passed. [Sundaram Finance Ltd. v. Abdul Samad, (2018) 3 SCC 622]

Electricity Act, 2003 — Ss. 127, 126 and 135 — Need to adhere to statutory dispute resolution mechanism/scheme: Once proceedings are initiated under Ss. 126 and/or 135, they must be brought logical conclusion in accordance with law after hearing consumer/concerned person as per statutory scheme. [Maharashtra State Electricity Distribution Co. Ltd. v. Appellate Authority, (2018) 3 SCC 608]

Insurance — Life Insurance — Contract of life insurance: Acceptance of premium, amounts to waiving precondition of medical examination of insured. Such acceptance of premium results in concluded contract. Subsequent repudiation of policy amounts to deficiency in service. [D. Srinivas v. SBI Life Insurance Co. Ltd., (2018) 3 SCC 653]

Labour Law — Regularisation — Questions of fact — Proper forum: As several questions of fact arose in present case and MoU between employer and employee provided for arbitration, therefore, matter referred to Arbitral Tribunal for adjudication of factual disputes. [Ennore Port Trust v. V. Manoharan, (2018) 3 SCC 612]

Madhya Pradesh Motor Vehicles Rules, 1994 — Rr. 63, 64 and 65 — Decision regarding modification of time schedule of vehicle route: In this case State Transport Authority took decision by signing of two members when all three members as required for quorum were present during hearing where all parties heard. It was held that as quorum for meeting was satisfied, signing of decision by majority of members (that is by two out of three members), was valid. In present case, normal rule of decision by majority should be followed as no exception is provided in statute. R. 65(4) providing for decision by special majority is not applicable because it is with regard to decision by circulation by votes. Present case is not a case of decision by circulation. [State of M.P. v. Mahendra Gupta, (2018) 3 SCC 635]

Motor Vehicles Act, 1988 — Ss. 166 and 168 — Compensation — Total permanent disability — Functional disability — Need to assess: Appellant 26 yrs old at time of accident, riding pillion on a motorcycle, dashed against by a lorry, sustained a fracture in his spinal cord, right leg and right hip bone, losing sensation or movement in his legs. Tribunal determined compensation at Rs 9,72,000; but thereafter on medical opinion of about 70% disability, reduced it to net amount at Rs 6,80,400 and after addition of medical and other expenses, awarded a total compensation of Rs 11,27,359 together with interest of 12% p.a. High Court in appeal reduced interest component from 12% p.a. to 7.5% p.a.. It was held by the Supreme Court that as a result of multiple fractures sustained by him, appellant has lost complete sensation below abdomen. Evidently he cannot work anymore as load man. In these circumstances, assessment of disability at 70% is incorrect. On a realistic view, nature of disability must be regarded as being complete. There was no reason or justification for deduction of Rs 2,91,600 by Tribunal (Rs 9,72,000 minus Rs 6,80,400). Amount so deducted restored and rounded off to Rs 3,00,000, enhancing compensation granted by Tribunal by this amount. Moreover, appellant is entitled to interest at 9% p.a. from date of claim petition on total amount of compensation (instead and in substitution of 7.5% p.a. awarded by High Court). [S. Thangaraj v. National Insurance Co. Ltd., (2018) 3 SCC 605]

Motor Vehicles Act, 1988 — Ss. 166, 168 and 173 — Enhancement of compensation — Difference claimed only 4% or 5%: Court normally does not interfere where variation in compensation is within permissible limits. [New India Assurance Co. Ltd. v. Vinish Jain, (2018) 3 SCC 619]

Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 — S. 24 — Interpretation of word “paid” in S. 24(2): As there is divergence in opinion of co-equal Benches, proceedings in all affected cases stayed until question is settled by larger Bench. [State of Haryana v. G.D. Goenka Tourism Corpn. Ltd., (2018) 3 SCC 585]

Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Settlement Act, 2013 — S. 24(2) — Lapsing of acquisition proceedings under, in case of nonpayment of compensation within prescribed period — Conduct of landowners concerned in regard to non-payment — Relevance of: Said provision under S. 24(2) of 2013 Act extends protection only to such landowners who are deprived of the compensation and not to those who deliberately do not collect the compensation and avoid to receive the same by their wilful act(s). Failure to deposit compensation in court under S. 31 of LA Act, 1894 in latter case would attract only payment of interest as envisaged under S. 34 of said LA Act. In such latter case, provisions of S. 24 of 2013 Act cannot be invoked seeking lapse of acquisition proceedings. [Mahavir v. Union of India, (2018) 3 SCC 588]

Sales Tax and VAT — Refund: When payment of sales tax has been done on provisional price, in case of subsequent reduction in provisional price, assessee is entitled to refund of tax paid on excess amount, with interest. [Universal Cylinders Ltd. v. CCT, (2018) 3 SCC 648]

Cases ReportedSupreme Court Cases

Drugs (Prices Control) Order, 1995 — Sch. I — Diosmin — Inclusion of in Sch. I: The issue of inclusion of Diosmin, in Sch. I, already stands decided in Ministry of Chemicals & Fertilizers, Union of India, (2003) 7 SCC 1. In view thereof, matter remanded to the High Court for reconsideration. [Union of India v. Cipla Ltd., (2017) 5 SCC 324]

Environment Law — Water/River/Coastal Pollution — Effluents, Sewage, River and Lake Pollution: Directions issued regarding establishment and functionality of effluent treatment plants, common effluent treatment plants, and sewerage treatment plants. Industrial units without functional effluent treatment plant directed to not be permitted to be operational. [Paryavaran Suraksha Samiti v. Union Of India, (2017) 5 SCC 326]

Arbitration and Conciliation Act, 1996 — Pt. I or Pt. II (including S. 34) — Inapplicability of Pt. I to foreign-seated arbitrations where place of arbitration i.e. juridical seat is outside India: Where the parties do not expressly choose the law governing the contract as a whole or the arbitration agreement in particular, the law of the country where the arbitration is agreed to be held i.e. place chosen as arbitration/juridical seat of arbitration as per terms of arbitration agreement and subsequent conduct/consent of parties has primacy. [Imax Corpn. v. E-City Entertainment (India) (P) Ltd., (2017) 5 SCC 331]

Civil Procedure Code, 1908 — Or. 7 R. 11 vis-à-vis Or. 14 R. 2 — Relative scope of, and materials which may be considered under either provision: Or. 7 R. 11 deals with institutional defects while Or. 14 R. 2 allows for disposal of a case on preliminary issues. Issues which truly concern Or. 7 R. 11 cannot be disposed of as preliminary issues under Or. 14 R. 2. [Kuldeep Singh Pathania v. Bikram Singh Jaryal, (2017) 5 SCC 345]

Criminal Procedure Code, 1973 — Ss. 482 and 320 — Quashment of non-compoundable offences pursuant to settlement arrived at by parties: Exercise of judicial restraint vis-à-vis continuance of criminal proceedings after compromise arrived at between parties may amount to abuse of process of court and futile exercise. In this case, quashment of criminal proceedings based on settlement, by High Court upheld. [CBI v. Sadhu Ram Singla, (2017) 5 SCC 350]

Constitution of India — Arts. 366(29-A)(e) and (f) (as enacted vide 46th Amendment in 1982) — Provision of food and beverages by incorporated clubs to their permanent members — Consideration of, as sale: Questions regarding applicability of doctrine of mutuality, to clubs post 46th Amendment to Art. 366(29-A), framed and matter referred to larger Bench. [State of W.B. v. Calcutta Club Ltd., (2017) 5 SCC 356]

Civil Procedure Code, 1908 — S. 47 and Or. 21 — Execution of decree — Powers of executing court under S. 47 CPC: Powers available under S. 47 CPC, are quite different and much narrower than those available in appeal/revision or review. Executing court can neither travel behind decree nor sit in appeal over the same or pass any order jeopardising rights of parties thereunder. Decree is unexecutable only on limited grounds where it suffers from jurisdictional error/infirmity or is void and a nullity, apart from the ground that decree is incapable of execution under the law, either because the same was passed in ignorance of such provision of law or law was promulgated making a decree unexecutable after its passing. An erroneous decree cannot be equalled with one which is a nullity. [Brakewel Automotive Components (India) (P) Ltd. v. P.R. Selvam Alagappan, (2017) 5 SCC 371]

Criminal Procedure Code, 1973 — Ss. 228 and 216 — Framing of additional charge: There is plea for framing of additional charge, by complainant/victim, when investigating officer drops a charge against the accused, hence, direction to trial court before whom case is pending to consider the same. [Sarada Prasanna Dalai v. Inspector General of Police, (2017) 5 SCC 381]

Service Law — Appointment — Compassionate appointment — Right to compassionate appointment — Parity — Pay: There is no right to seek compassionate appointment since compassionate appointment is not a source of recruitment but is a mode to provide succour to family of employee who died in harness. [Mukesh v. State of Bihar, (2017) 5 SCC 383]

Government Contracts and Tenders — Formation of Government Contract — Tender Conditions/Criteria/Norms: Respondent bidder, whose bid had been rejected, inter alia, contended that L-2 who was one amongst the two tenderers found to have requisite qualifications, did not possess hot mix plant at the time of submitting the tender and was thereby disqualified and thus it became necessary to invite the fresh bids but on analysing the tender document and the requirements for prequalification, held hot mix plant was not a mandatory requirement so as to open the financial bid. Thus, the financial bids of the two tenderers who succeeded at the pre-qualification stage had been rightly opened and considered. [Chhattisgarh State Industrial Development Corporation Ltd. v. Amar Infrastructure Ltd., (2017) 5 SCC 387]

Criminal Procedure Code, 1973 — Ss. 437 and 439 — Bail — Successive applications for grant of — Effect of filing of charge-sheet: In this case of “misconceived class honour” culminating in appellant-accused murdering his son-in-law, grant of bail by Additional Sessions Judge in third application finding that filing of charge-sheet amounts to change in circumstance oblivious to fact that SLP filed by appellants for grant of bail was dismissed by Supreme Court, not proper. Hence, quashment of such bail by High Court, affirmed. [Virupakshappa Gouda v. State of Karnataka, (2017) 5 SCC 406]

Constitution of India — Art. 136 — Appeal against conviction: In this case, Supreme Court issued suo motu show-cause notice to appellant-accused for enhancement of sentence and appellant, thereafter, sought permission to withdraw appeal. It was held that on issuance of such notice by Supreme Court after hearing both sides, it will be the duty of Supreme Court to decide the same irrespective of fact that accused does not want to prosecute his appeal against conviction. It is because show-cause notice issued to appellant will have to be taken to its logical end being substantive proceedings ascribable to jurisdiction of appellate court under S. 386 or r/w Ss. 397 and 401 CrPC and, in instant case, plenary jurisdiction of Supreme Court. In such backdrop, appellant cannot be permitted to withdraw the appeal. [Gandi Doddabasappa v. State of Karnataka, (2017) 5 SCC 415]

Mines and Minerals (Development and Regulation) Act, 2015 — S. 9-B — Contributions made by iron ore lessees to “District Mineral Foundation” set up under S. 9-B: In pursuant to orders/directions passed in Samaj Parivartana Samudaya, (2013) 8 SCC 154, SPV was directed to be set up in order to meet the extraordinary situation i.e. systematic, extraordinary and unprecedented plunder of the natural wealth and environment, and the special funds in deposit with the Monitoring Committee were meant to be deployed for re-creation of what had been lost due to such illegal activities. Even new lessees, who may not have been involved with such degradation, were contributing to the process of reclamation and restoration. In view thereof, held, lessees who may be even remotely connected with the degradation and destruction of nature must continue to pay their share in the process of restitution by contributing to the Managing Committee/SPV from their present sale proceeds, regardless of their obligations under S. 9-B. Therefore, all existing lessees to continue to pay 10% of the sale proceeds to the Monitoring Committee/SPV. [Samaj Parivartana Samudaya v. State of Karnataka, (2017) 5 SCC 434]

Rent Control and Eviction — Eviction petition/suit — Maintainability — Locus standi/Standing — Co-owners/Joint owners: Eviction suit instituted by appellants claiming themselves to be joint owners of suit premises by virtue of a will deed and appellants also declared to be co-owners in an earlier title suit filed by them, and decree in said suit had attained finality, hence, dismissal of the present (subsequent) eviction suit (by Revisional Court and High Court), on ground that appellants had no locus standi to maintain the eviction suit as they failed to formally prove the above will, not proper. [Om Prakash v. Mishri Lal, (2017) 5 SCC 451]

Advocates Act, 1961 — Ss. 36-B(1), 35, 36 and 37 — Relative scope of, explained — Jurisdiction of BCI: Transfer to BCI from State Bar Council under S. 36-B(1) takes place by operation of law on failure by State Bar Council to decide proceedings within mandated period of one year. BCI is mandated to dispose of such transferred proceedings as if they were proceedings withdrawn for enquiry under S. 36(2). BCI is required to exercise original jurisdiction that ought to have been exercised by the State Bar Council in such cases. In exercise of original jurisdiction BCI cannot remand matter to State Bar Council. It can only do so in exercise of its appellate jurisdiction. [Ajitsinh Arjunsinh Gohil v. Bar Council of Gujarat, (2017) 5 SCC 465]

Cases ReportedSupreme Court Cases

Advocates — Disciplinary proceedings — Enquiry procedure — Principles of natural justice — Violation of: It was alleged that appellant advocates (brothers of respondent complainant) failed to maintain proper rental account of respondent and recording of finding of guilt on basis of evidence and affidavit filed by respondent complainant during enquiry without giving opportunity to appellants to cross-examine respondent and his witnesses, and relying on documents produced by him which were in vernacular language without providing translated copy thereof to appellants, Supreme Court held that since allegations made against appellants were serious and finding of guilt recorded against them inevitably had civil consequences, it is cardinal that they should have been allowed to cross-examine witnesses concerned. Not granting such opportunity, entails infraction of principles of natural justice, thus, vitiating enquiry procedure. However, instead of relegating parties to BCI for conducting fresh enquiry, considering that complaint was made in 1997 and that too by brother of appellants because of some family disputes and further that appellants had suffered ignominy due to pendency of enquiry against them including finding of guilt recorded by BCI, it is found prudent to give quietus to matter. [Palanisamy v. K. Dhanpalan, (2017) 4 SCC 713]

Arbitration and Conciliation Act, 1996 — Ss. 12(5) & 11(8) r/w Sch. 7 — “Neutrality of arbitrators” i.e. impartiality and independence of the arbitrators — Necessity of: S. 12 has been amended with the objective to induce neutrality of arbitrators and the amended provision enacted to identify the “circumstances” which give rise to “justifiable doubts” about the independence or impartiality of the arbitrator. An arbitrator has adjudicatory role to perform and, therefore, must be independent of parties as well as impartial. [Voestalpine Schienen Gmbh v. Delhi Metro Rail Corpn. Ltd., (2017) 4 SCC 665]

Armed Forces — Disability Pension — Entitlement to — Absence of disabilities or disease noted or recorded at time of entry into service of armed forces: Rejection of appellant’s claim for disability pension, who at time of entry into armed forces service was found fit, on basis of opinion of Medical Board, who though diagnosing appellant with acute schizophrenia like psychotic order and assessing his disability at 60% for life but opining that said disability was neither attributable nor aggravated by military service, not proper. Since it is undisputed that appellant was not suffering from any disease/disability at time of entering into military service, Medical Board should have called for his service record at time of joining military service before determining that disability was not attributable to military service. In absence of any evidence to show appellant was suffering from any such disease at time of entering military service, presumed that appellant was in sound mental condition at that time and deterioration of health had taken place due to military service. Hence, wife of appellant and other legal heirs entitled to disability pension. [Laxmanram Poonia v. Union of India,  (2017) 4 SCC 697]

Civil Procedure Code, 1908 — S. 114 & Or. 47 R. 1 — Review jurisdiction — Duty of courts, registries of courts, litigants and lawyers: Having regard to limited scope, review petition has to be expeditiously disposed of. Any time-frame cannot be fixed. It is duty of registry of High Courts to place review petition before Judge/Bench concerned so that such petition can be dealt with in quite promptitude. If notice required to be issued to opposite party, then specific date can be given so that on that day petition can be disposed of in accordance with law. Litigant cannot keep review petition defective as if a defective petition can be allowed to remain on life support, as per desire of litigant. If review petition is defective then it is duty of counsel for petitioner to remove such defects at the earliest. Defective matters can be placed before Judge/Bench concerned so that preemptory orders can be passed for removal of defects. Tactics of waiting for rejection of review petition and then challenge such orders in SLP after delay contending that petitioner was pursuing review before court cannot be adopted. Court registry required to be vigilant. [Sasi v. Aravindakshan Nair, (2017) 4 SCC 692]

Civil Procedure Code, 1908 — Ss. 92 and 115 — Object of S. 92 CPC — Leave of court to institute suit alleging breach of trust: “Trust” must have lawful purpose for which it is established. Trust can be created by virtue of a conditional gift. If leave granted by trial court by forming prima facie opinion about creation of trust, having regard to charitable purpose for which property is gifted and recitals in deed regarding administration of property, High Court in exercise of revisional power under S. 115 CPC is not justified in setting aside trial court’s order. [Swami Shivshankargiri Chella Swami v. Satya Gyan Niketan, (2017) 4 SCC 771]

J&K Contempt of Courts Act, 1997 (25 of 1997) — Ss. 10 and 15 — Reference to High Court — Locus standi — General contemptuous action: Report of Petitioner 2 published by Petitioner 1 levelling allegations of corruption against lower judiciary in State of J&K and contention was raised that only that particular court of which contempt was allegedly committed could make reference and not just any court, Supreme Court held that the same does not merit acceptance since S. 15(2) contemplates a situation where alleged contemptuous action is aimed at more than one court and in that eventuality any one of such courts can make reference to High Court. Where contemptuous action is of general nature, and not aimed at any specific Judges or courts, any of such Judges or court can make reference to High Court. [Transparency International India v. State of J&K, (2017) 4 SCC 748]

Land Acquisition Act, 1894 — Ss. 23 and 28 — Valuation of land — Factors — Lands identical and similar — Acquisition in adjacent villages: When inter se distance between two villages is not much, however, centre to centre distance between the two villages is less than half a kilometer. There was no reason for Reference Court to differentiate land of appellant landowners of acquired land, awarding lesser compensation. [Ali Mohammad Beigh v. State of J&K, (2017) 4 SCC 717]

Land Acquisition Act, 1894 — Ss. 3(b), 23 and 50 — Compensation — Determination of — Necessary and proper parties — Who are: Postacquisition allottee of land, neither necessary nor proper party, nor has any locus to be heard in matter of determination of compensation. [Satish Kumar Gupta v. State of Haryana, (2017) 4 SCC 760]

Motor Vehicles Act, 1988 — S. 166(3) [before and after its deletion] — Limitation period for filing claims provided for under S. 166(3) of 1988 Act and 110-A(3) of 1939 Act, finally done away with vide deletion of S. 166(3) of 1988 Act w.e.f. 14-11-1994 — Effect of: Deletion of S. 166(3) does not revive stale or dead claims. A claim raised before the Motor Accidents Claims Tribunal can be considered to be genuine, so long as it is a live and surviving claim. Individual concerned must approach the Tribunal within a reasonable time. Further, reasonability would depend on the facts and circumstances of each case. [Purohit & Co. v. Khatoonbee, (2017) 4 SCC 783]

Motor Vehicles Act, 1988 — Ss. 149 and 147 — Award passed against insured (owner) only: When death in the motor accident occurred due to rash and negligent driving of a private vehicle i.e. Tata Sumo and victims were travelling as “gratuitous passengers” in that vehicle, on these facts, exonerating the insurer of the offending vehicle, award passed by courts below only against the owner of the offending vehicle i.e. the person insured, in such a case, appellant claimants were entitled for an order against the insurer to pay the awarded sum to claimants and then to recover the said amount from the insured in the same proceedings as per the law laid down in para 26 of the judgment made in Saju P. Paul, (2013) 2 SCC 41. Since High Court erred in not passing such an order, its impugned order modified accordingly. Merely because compensation had not yet been paid to claimants though the case was quite old (i.e. 16 yrs old), was not a ground to deny said relief to claimants. Even the argument to deny that relief to claimants due to pendency of a reference in such matter before a larger Bench, was not sustainable in view of the fact that said matter had already been disposed of by keeping that issue undecided. [Manuara Khatun v. Rajesh Kumar Singh, (2017) 4 SCC 796]

Security Interest (Enforcement) Rules, 2002 — Rr. 8(6) and 9(1) — Notice to borrower regarding creditor’s intention to sell the asset and “public notice for sale”: It is permissible to simultaneously issue notice to the borrower about the intention to sell the secured assets and also to issue a public notice for sale of such secured asset by inviting tenders from the public or by holding public auction, the only restriction being to give thirty days’ time gap between such notice and the date of sale of the immovable secured asset. [Canara Bank v. M. Amarender Reddy, (2017) 4 SCC 735]

Transfer of Property Act, 1882 — S. 53-A — Protection available under S. 53-A to transferee — Availability of, even if suit for specific performance of agreement in favour of such transferee stands time-barred: Though mere expiry of the period of limitation for a suit for specific performance is not a bar for a person in possession of immovable property in part-performance of a contract for transfer thereof for consideration, to assert the shield of Section 53-A TPA, it is nevertheless imperative that to avail the benefit of such protection, all the essential prerequisites therefor have been complied with. [Vasanthi v. Venugopal, (2017) 4 SCC 723]

Cases ReportedSupreme Court Cases

Armed Forces — Service Conditions — Navy — Pension — “Reservist pension” — Entitlement to: In terms of Regn. 92(1) of 1964 Pension Regulations, eligibility for grant of “reservist pension” is upon completion of 10 yrs each of active service and fleet reserve service. In terms of Regn. 92(2) of 1964 Pension Regulations, a reservist whose qualifying service is less than the period of engagement but not less than fifteen years may, on completion of the period of engagement or on earlier discharge from the reserve otherwise than at his own request, be granted a reservist pension. Hence, merely upon completion of 10 yrs of active service or for that matter active service continued beyond that period but falling short of 15 yrs, or of the qualifying reserve service, Sailor cannot claim benefit under Regn. 92 for grant of reservist pension. To qualify for reservist pension under Regn. 92(1), he must be drafted to Fleet Reserve Service for 10 yrs. Besides, express order needs to be issued by competent authority drafting him to Fleet Reserve Service since in terms of Regn. 6 of Indian Fleet Reserve Regulations, there can be no claim to join Fleet Reserve Service as a matter of right. In absence of any formal order issued by competent authority to draft services of applicants concerned in Fleet Reserve Services applicants cannot claim benefit of reservist pension. [T.S. Das v. Union of India, (2017) 4 SCC 218]

Constitution of India — Arts. 21 and 14 — Fair trial: Concept, objectives and principles of fair trial examined and summarized. Manner of application of these principles when question is of transfer of prisoner, to balance rights of accused, and of victim(s)/their dependants to fair trial and due process, also discussed. [Asha Ranjan v. State of Bihar, (2017) 4 SCC 397]

Contempt of Court — Criminal Contempt — Scandalise or lower authority of court — Allegations of bias and corruption made against judiciary: Judges need not be protected since they can take care of themselves but it is the right and interest of public in due administration of justice which must be protected. Vilification of Judges leads to destruction of system of administration of justice. Thus, statements made by appellants accusing Judges of corruption results in denigration of institution which has effect of lowering confidence of public in system of administration of justice, were not only derogatory but had propensity to lower authority of court. Appellants indulged in assault on integrity of Judges of High Court by making baseless and unsubstantiated allegations which cannot be termed as fair criticism on merits of case and hence, not protected under S. 5 of 1971 Act. Hence, impugned judgment finding appellants guilty of committing contempt of court, upheld. [Het Ram Beniwal v. Raghuveer Singh, (2017) 4 SCC 340]

Criminal Procedure Code, 1973 — S. 53-A — Non-holding of DNA test, or, failure to prove DNA test report, or, DNA test result favouring accused: Failure to conduct DNA test of samples taken from accused or to prove the report of DNA profiling, would not necessarily result in failure of prosecution case. Though a positive result of DNA test would constitute clinching evidence against accused, if however, result of test is in the negative i.e. favouring accused or if DNA profiling had not been done or proved in a given case, weight of other materials and evidence on record will still have to be considered. [Sunil v. State of M.P., (2017) 4 SCC 393]

Election — Corrupt Practices/Electoral Offences — Excess Expenditure — Allegation of — Material facts to ground: Material facts relied upon by election petitioner along with full particulars of corrupt practice must be stated as required under S. 83(1)(b), RP Act, 1951. Allegation in election petition that actual amount of expenditure incurred by returned candidate on account of campaign made through various newspapers during election was more than that shown by him and details of actual expenditure incurred given by furnishing particulars of newspapers and dates on which advertisements appeared therein and cost of each type of advertisement in each newspaper. As full particulars as required under S. 83(1)(b), were furnished, photocopies of newspapers need not be furnished along with election petition, hence, averments made with regard to election expenses in election petition, held, warrant a full-fledged trial. [Navjot Singh Sidhu v. Om Parkash Soni, (2017) 4 SCC 348]

Government Contracts and Tenders — Public Auction/Tender — Financial evaluation of bids by expert — Scope of judicial review: Matter involving complex fiscal analysis, having regard to tender conditions, when neither ex facie erroneous nor perverse or absurd, court should apply principle of restraint. Court cannot sit in appeal over financial consultant’s assessment. [T.N. Generation and Distribution Corpn. Ltd. v. CSEPDI-TRISHE Consortium, (2017) 4 SCC 318]

Infrastructure Laws — Telecommunications Laws — Spectrum — Notice Inviting Application, 2015 for allocation of spectrum — Cl. 5.3 — Cap on bidding — Validity of: Cl. 5.3 of NIA provided for a cap on the quantum of spectrum an operator could hold in a licensed service areas (LSA). Some bidders were not allowed to participate in respect of certain areas and Central Government contended that it had been done to curtail the monopoly and to encourage a broad-based competition and further to allow certain entities who did not have the adequate spectrum so that there is augmentation of revenue as well as enhancement of efficiency in providing the service. It was held by Supreme Court that the condition to put a cap and make a classification not allowing certain entities to bid was not arbitrary, as it was based on the acceptable rationale of serving the cause of public interest. [Reliance Telecom Ltd. v. Union of India, (2017) 4 SCC 269]

Penal Code, 1860 — S. 302 or S. 325 — Death of minor girl: In this case of repeated rape and sodomy of minor by her guardian (who wanted to bring up the minor as his own daughter) over a period of time, as liability of appellant for commission of offence under S. 302 IPC comes under serious doubt on the basis of medical evidence, the benefit of it must go in favour of appellant. Therefore, having regard to evidence on record and injuries caused, appellant should be held liable for offence under S. 325 IPC. Accordingly, conviction of appellant under S. 302 IPC is altered to one under S. 325 IPC. Consequently, death penalty under S. 302 is set aside and punishment of 7 years’ RI is imposed, in addition to life imprisonment under Ss. 376(2)(f) and 377 IPC. [Rajesh v. State of M.P., (2017) 4 SCC 386]

Penal Code, 1860 — Ss. 302/304 Pt. II, 324, 336 147, 148 r/w S. 149 or S. 120-B — Ingredients for applicability of S. 149 or S. 120-B — Summarised: In absence of evidence of any conspiracy or common object being established, accused liable for their individual acts only. Moreover, mere presence does not make a person member of unlawful assembly unless he actively participates in rioting or does some overt act with necessary criminal intention or shares common object of unlawful assembly. [Vijay Pandurang Thakre v. State of Maharashtra, (2017) 4 SCC 377]

Service Law — Promotion — Sealed cover procedure: Employee against whom charge-sheet is issued and disciplinary proceedings are pending or in respect of whom prosecution for criminal charge is pending, sealed cover procedure may be resorted to. Further held, only after charge-sheet is filed, criminal proceedings can be said to be pending. [Harsh Kumar Sharma v. State of Punjab, (2017) 4 SCC 366]

Service Law — Recruitment Process — Selection process/procedure — Weightage: A person who consciously takes part in selection process cannot thereafter turn around and challenge method of selection and its outcome. [Ashok Kumar v. State of Bihar, (2017) 4 SCC 357]

Specific Relief Act, 1963 — Ss. 39 and 34 — Suit for declaration regarding illegal rejection of bid and consequential relief of mandatory injunction for issuance of allotment letter: A declaration that rejection of the bid is illegal, itself does not entitle the plaintiff (highest bidder) to consequential mandatory injunction for issuance of formal letter of allotment when bid had not yet been accepted i.e. in absence of concluded contract. [HUDA v. Orchid Infrastructure Developers (P) Ltd., (2017) 4 SCC 243]

Cases ReportedSupreme Court Cases

Civil Procedure Code, 1908 — Or. 41 R. 23-A and Or. 27 R. 5-B — Remand of case: In this suit against Government and local bodies for declaration of plaintiff’s title to land, permanent injunction and recovery of possession, decree passed by trial court in favour of plaintiff, reversed by High Court in appeal on ground of appellant-plaintiff’s failure to prove ownership over suit land without affording him opportunity to prove his title by remanding case to trial court for retrial. It was held that case deserves to be remanded to trial court in exercise of power under Or. 41 R. 23-A for retrial of suit on merits by affording parties to adduce additional evidence in support of their case. However, court must in first instance act in terms of Or. 27 R. 5-B by endeavouring to assist parties in arriving at a settlement. [Mohan Kumar v. State of M.P., (2017) 4 SCC 92]

Civil Procedure Code, 1908 — S. 100 — Second appeal: In this suit concerning taxes levied by local authorities, various issues arouse out of challenge to levy of municipal taxes but High Court dismissed second appeal in limine holding that no substantial questions of law arose in the case, hence, the order of High Court was not sustainable and set aside. [Faridabad Complex Admn. v. Iron Master India (P) Ltd., (2017) 4 SCC 136]

Civil Procedure Code, 1908 — Ss. 50 & 146 and Or. 21 Rr. 32 & 16 — Execution proceedings against legal representatives of judgment-debtor: In this case after passing of decree for permanent injunction against defendant in respect of heritable property in possession of plaintiff title-holder, defendant died and execution petition was filed by decree-holder plaintiff against heirs of deceased defendant-judgment-debtor, it was held that heirs of judgment-debtor are bound by decree and decree is enforceable against them by virtue of S. 50 r/w Or. 21 R. 32. Maxim “actio personalis moritur cum persona” i.e. personal action dies with the person, applicable to limited kinds of causes of action and not applicable to this case. [Prabhakara Adiga v. Gowri, (2017) 4 SCC 97]

Constitution of India — Art. 226 — Maintainability — Disputed questions of fact: Respondent Corporation issued show-cause notices to appellant-petitioner, through which it was informed that electricity supply and water supply would be disconnected. When these show-cause notices were challenged in writ proceedings, High Court declined to interfere on ground of disputed questions of fact and suit for specific performance in respect of the same property being pending before civil court. Supreme Court held that when the show-cause notices issued by statutory authorities were challenged on permissible grounds, disputed questions of fact involved in matter cannot preclude High Court from exercising judicial review. Pendency of civil suit between parties or failure of parties to arrive at settlement cannot be ground for declining to examine challenge to show-cause notices. Hence, order passed by High Court set aside and matter remanded to High Court for fresh consideration. [Rufina D’Souza v. Municipal Corpn. of Greater Mumbai, (2017) 4 SCC 81]

Criminal Procedure Code, 1973 — S. 235(2) — Right of being heard before sentence is awarded: It is true that the convict has a right to be heard before sentence, but, there is no mandate in S. 235(2) CrPC to fix separate date for hearing on sentence. It depends on facts and circumstances as to whether a separate date is required for hearing on sentence or parties feel convenient to argue on sentence on the same day. [B.A. Umesh v. High Court of Karnataka, (2017) 4 SCC 124]

Criminal Procedure Code, 1973 — Ss. 173(8), 156(3) and 202 — Relative scope of role and powers of Magistrate under, explained: Considering the scheme of CrPC, held, though Magistrate can direct further investigation under S. 156(3) CrPC at pre-cognizance stage even after a charge-sheet or a closure report is submitted, but if cognizance has been taken and accused appears before court in pursuance of process issued by court or where accused is discharged, Magistrate, in absence of any request by investigating agency, possesses no power to direct further investigation in the case either suo motu or on prayer made by complainant/informant. Further investigation at that stage can be directed by Magistrate only on request of investigating agency/officer and that too in circumstances warranting further investigation on detection of material evidence to secure fair investigation and trial. Reason therefor is that by virtue of insertion of sub-section (8) to S. 173 in new CrPC of 1973 pursuant to recommendations made by Law Commission of India in its 41st Report, the investigating agency/officer alone has been authorised to conduct further investigation, desirably after informing the court and obtaining its approval, at any stage of the proceedings. Further clarified, though the investigation that can be directed by Magistrate under S. 202 CrPC is at a post-cognizance stage, such a direction is not in the nature of further investigation as contemplated under S. 173(8) CrPC. [Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel, (2017) 4 SCC 177]

Criminal Trial — Motive — When becomes relevant — Murder trial: Though motive of crime is not necessarily required to be proved, but in case like present one, where appellant-accused are named on suspicion by informant PW 6 in the FIR (which does not contain names of PWs 4 and 5 as witnesses who had seen the occurrence), the motive appears to be a relevant fact. [Pawan v. State of Haryana, (2017) 4 SCC 140]

Education and Universities — Admission — Admission Procedure — Allotment of campus — Transfer of campus: As norms of admission of University absolutely prohibit permission of transfer, merely because vacancy occurs at other campus, no right accrues in favour of candidate who already had exercised option. Further held, where University decides to grant request of transfer it must be in exceptional and extraordinary circumstances (student suffering from malignancy and lack of medical facility in campus concerned) which is subject to judicial scrutiny. [Anna Juhi John v. English & Foreign Languages Universities, (2017) 4 SCC 144]

Education and Universities — Examination — Unfair means/Cheating/Leakage of question paper/Cancellation of examination — Mass copying and use of unfair means on large scale — Vyapam Scam: Appellants who had participated in a well thought out and meticulously orchestrated fraudulent plan to get MBBS admissions/degrees, are not entitled to any relief in exercise of extraordinary power under Art. 142 of the Constitution. Hence, their admissions and results in MBBS examinations based thereon, rightly cancelled. [Nidhi Kaim v. State of M.P., (2017) 4 SCC 1]

Family and Personal Laws — Hindu Marriage Act, 1955 — S. 13(1)(ia) — Mental cruelty — When may not be inferred: Some isolated incidents alleged to have occurred 8-10 yrs prior to filing of petition cannot furnish subsisting cause of action and also cannot constitute an act of cruelty to grant divorce. Incidents alleged should be of recurring or continuing nature and should occur in near proximity to filing of petition. [Suman Singh v. Sanjay Singh, (2017) 4 SCC 85]

Government Contracts and Tenders — Formation of Government Contract — Notice inviting tenders (NIT) — Interpretation by courts: Words used in document cannot be treated to be surplusage or superfluous or redundant. They must be given some meaning and weightage. Courts should be inclined to suppose that every word is intended to have some effect or be of some use. Rejecting words as insensible should be last resort of judicial interpretation. As far as possible, courts should avoid construction which would render words used by author of document meaningless and futile or reduce or silence any part of document and make it altogether inapplicable. If interpretation of tender documents adopted by tender inviting authority suffers from mala fide or perversity then courts can interpret documents. Interpretation given by tender inviting authority not acceptable to courts is no reason for interfering with interpretation adopted by authority. [JSW Infrastructure Ltd. v. Kakinada Seaports Ltd., (2017) 4 SCC 170]

Hindu Marriage Act, 1955 — Ss. 19 and 13 — Transfer of proceedings — Alternatives to transfer of proceedings, to suit convenience of both parties and also serve ends of justice: Directions issued that in matrimonial or custody matters wherever defendants/respondents are located outside jurisdiction of court, court where proceedings are instituted may examine whether it is in interest of justice to incorporate any safeguards like: (i) availability of videoconferencing facility; (ii) availability of legal aid service; (iii) deposit of costs of travel, lodging and boarding in terms of Or. 25 R. 1 CPC; and (iv) e-mail address/phone number, if any, at which litigant from outstation may communicate and in case found feasible order incorporating such safeguards may be sent along with summons. [Krishna Veni Nagam v. Harish Nagam, (2017) 4 SCC 150]

Labour Law — Penalty/Punishment — Judicial review/Validity — Jurisdiction of High Court: In this case where forging passing certificate for drawing additional monetary benefits by the delinquent employee was concluded, High Court will not reappreciate evidence and its jurisdiction is limited only to examine whether there is evidence in support of impugned conclusion. [SBI v. Smita Sharad Deshmukh, (2017) 4 SCC 75]

Motor Vehicles Act, 1988 — Ss. 166, 167 and 168 — Compensation — Amount received in excess due to withdrawal of sums awarded by Tribunal, which were later much reduced in appeal: Though liberty was given to appellant Insurance Company to recover excess sum payable to respondents, however, having regard to peculiar facts of present case, it is an eminently fit case to invoke jurisdiction under Art. 142 of Constitution for reason that deceased employee died at 32 yrs and claimants having not been granted 50% of enhancement in salary, no amount given to minor towards loss of love, care and protection and further that for consortium only Rs 25,000 was paid, appeal by Insurance Company, dismissed. [Oriental Insurance Co. Ltd. v. Radhika Gupta, (2017) 4 SCC 159]

Penal Code, 1860 — S. 302 — Murder trial — Death by shooting: As reversal of conviction by High Court was based on improper reasoning of High Court, on basis of minor doubts and technicalities and trial court had advantage of observing demeanour of witnesses, hence conviction recorded by it could not have been lightly set aside. There was also presence of credible ocular evidence of eyewitness who witnessed the shooting which was found truthful and stood corroborated by fact that bullets were recovered from body of deceased and also stood corroborated by testimony of other witness. No evidence of false implication of accused was also present, hence, conviction of accused, restored. [Himanshu Mohan Rai v. State of U.P., (2017) 4 SCC 161]

Rent Control and Eviction — Rent Control Act — Applicability of, to pending proceedings — Law summarized: Rent Act would apply to pending proceedings, only if Rent Act contains specific provision to that effect. [Rajender Bansal v. Bhuru, (2017) 4 SCC 202]

Service Law — Regularisation — Entitlement to — Principles summarized: Part-time or casual employment is meant to serve exigencies of administration and continuance in such service for long period confers no right to regularisation especially when scheme of regularisation is missing from rule-book and regularisation casts huge financial implications on public exchequer. [State of T.N. v. A. Singamuthu, (2017) 4 SCC 113]

Cases ReportedSupreme Court Cases

Kerala liquor ban: Revisiting res extra Commercium & police power: A year ago, the Supreme Court upheld the Kerala Government’s Abkari Policy of 2014-2015 that prohibited the sale and service of alcohol in all public places except bars and restaurants in five-star hotels. The plea that this amounted to an unreasonable classification and thereby violated Article 14 was rejected. While discussing the nature of the rights of people trading in alcohol, the Supreme Court wrongly applied the concept of “res extra commercium” yet again. This article seeks to highlight the consistent error in failing to understand the origin and nature of the Latin phrase res extra commercium and its consequent erroneous application. The article also submits that the plea under Article 14 was rejected without any reasoning. [Kerala liquor ban: Revisiting res extra Commercium & police power by Arvind P. Datar and Rahul Unnikrishnan, (2017) 3 SCC (J-1)]

Anil Divan : A Counsel Nonpareil: An Obituary to Anil Divan, Senior Advocate, Supreme Court of India, who passed away on 20-3-2017. [Anil Divan: A Counsel Nonpareil: An Obituary, (2017) 3 SCC (J-7)]

R.K.P. Shankardass : Gentleman of The Indian Bar: An Obituary to R.K.P. Shankardass, Senior Advocate, Supreme Court of India and an esteemed former member of the SCC Editorial Board, who passed away on 10-3-2017. [R.K.P. Shankardass : Gentleman Of The Indian Bar: An Obituary, (2017) 3 SCC (J-10)]

T.M. Andhyarujina : Servant Of The Constitution: An Obituary to T.M. Andhyarujina, Senior Advocate, Supreme Court of India, former Solicitor General of India, Advocate General of Maharashtra and an esteemed member of the SCC Editorial Board, who passed away on 28-3-2017.[T.M. Andhyarujina : Servant of the Constitution, An Obituary, (2017) 3 SCC (J-12)]

M.N. Krishnamani : Cardinal Of The Bar: An obituary to Dr M.N. Krishnamani, Padam Shri, Senior Advocate, Supreme Court of India, Former President, SCBA, who passed away on 15-2-2017. [M.N. Krishnamani : Cardinal Of The Bar, An Obituary, (2017) 3 SCC (J-14)]

Associations, Societies and Clubs — Body discharging public functions but not amounting to “State” — BCCI — Reform in structure and organisation of BCCI as per directions of Court: As per order in Cricket Assn. of Bihar, (2017) 2 SCC 333, replacement of office-bearers of BCCI with Committee of Administrators, directed and pursuant to directions of Supreme Court, Amicus Curiae suggested names of members of Committee of Administrators in sealed cover, hence, pending deliberations on names suggested, documents to be kept in sealed cover and CEO who is looking after functioning of BCCI directed to continue to do as an interim measure. [BCCI v. Cricket Assn. of Bihar, (2017) 3 SCC 696]

Civil Procedure Code, 1908 — Ss. 33, 2(2), 100, Or. 7 Rr. 1(g), 7, 1(e) & 3, Or. 6 Rr. 1 & 2, Or. 14 Rr. 2 & 3, Or. 20 Rr. 5, 6 & 9 and Or. 1 Rr. 3, 10(2) & 9: Judgment and decree granting relief with respect to property other than that described in plaint is unsustainable, more so when that property admittedly stood in the name of another person, who was not party to suit nor was any relief claimed against him. [Arulmigu Chokkanatha Swamy Koil Trust v. Chandran, (2017) 3 SCC 702]

Consumer Protection — Consumer/Consumer Dispute/Locus Standi — Generally: A trust is not a person under S. 2(1)(m) of Consumer Protection Act, 1986. Hence, it is not a consumer within the meaning of S. 2(1)(d) of that Act. Consequently, a trust cannot be a complainant and cannot file a consumer dispute under the provisions of Consumer Protection Act. [Pratibha Pratisthan v. Canara Bank, (2017) 3 SCC 712]

Constitution of India — Art. 129 — Contempt of Supreme Court — Power and jurisdiction — Exercise of, for securing presence of contemnor: Due to failure of a sitting Judge of Calcutta High Court to appear before Supreme Court even after service of notice in suo motu proceedings, in absence of any alternative mode, bailable warrant to be served by Director General of Police, directed. [C.S. Karnan, In Re, (2017) 3 SCC 715]

Criminal Procedure Code, 1973 — Ss. 235(2) and 354(3) — Death penalty — Delhi Gang Rape case of December 2012: As non-consideration of aggravating and mitigating circumstances of each accused before awarding death penalty resulting in violation of S. 235(2) CrPC alleged by accused while imposition of death penalty on all accused, Supreme Court ensured compliance with S. 235(2) CrPC by granting opportunity to accused to adduce mitigating circumstances. Consequently, directions issued to authorities concerned to facilitate convicted accused in submitting their mitigating circumstances in the form of affidavit and place it before Supreme Court. As affidavit submitted did not contain certain material particulars, opportunity granted to file further affidavit. Necessity of Jail Authorities to file report on conduct of accused facing death penalty while in custody, also emphasized. [Mukesh v. State (NCT of Delhi), (2017) 3 SCC 717]

Family and Personal Laws — Guardians and Wards — Custody of Child/Minor — Welfare of child prime consideration: Girl aged 15 yrs, when intellectually and emotionally mature enough to understand and decide whose custody (mother or father) would be in her best interest, her preference should be given due weight. Court should desist from passing order for custody contrary to her will which may give rise to tormenting and disturbing experience in her mind. [Jitender Arora v. Sukriti Arora, (2017) 3 SCC 726]

Administrative Tribunals Act, 1985 — Ss. 2(a) and 3(q) — Inapplicability to members of Armed Forces — Member of General Reserve Engineer Force (GREF) of Border Roads Organisation: 1985 Act does not apply to any member of Armed Forces. Thus, High Court was justified in holding that appellant, member of GREF which is an integral part of Armed Forces within meaning of Art. 33 of the Constitution could not have invoked jurisdiction of CAT. In absence of lack of inherent jurisdiction to deal with issue, judgment rendered by CAT in appellant’s favour is a nullity having no existence in law. It is ultra vires powers of court passing decree hence, is void and not merely voidable decree. [Mohd. Ansari v. Union of India, (2017) 3 SCC 740]

Constitution of India — Arts. 163 & 189 and Arts. 74 & 100 — Discretionary power of Governor to appoint Chief Minister (CM), who may then form Government: To determine whether leader of post-poll alliance appointed as CM and invited by Governor to form State Government enjoyed support of requisite MLAs, directions for immediate floor test issued and date for the same also fixed. Election Commission directed to complete necessary formalities for holding floor test. [Chandrakant Kavlekar v. Union of India, (2017) 3 SCC 758]

Penal Code, 1860 — Ss. 302/120-B, 364/120-B and 201/120-B — Murder trial — Criminal conspiracy leading to abduction and murder — Circumstantial evidence: In this case of criminal conspiracy leading to abduction and murder, as overall circumstances and recoveries made, establishing guilt of appellant-Accused, their conviction under Ss. 302/120-B, 364/120-B and 201/120-B IPC, confirmed on the basis of circumstantial evidence. [Kishore Bhadke v. State of Maharashtra, (2017) 3 SCC 760]

Penal Code, 1860 — Ss. 63 to 65 — Uphaar Cinema case: Substitution of sentence by fine, not provided for in IPC. [Assn. of Victims of Uphaar Tragedy v. Sushil Ansal, (2017) 3 SCC 788]

Motor Vehicles Act, 1988 — Ss. 166 and 168 — Compensation — Heads of compensation — Loss of consortium to spouse — Scope and significance of: Consortium is right of spouse to company, care, help, comfort, guidance, society, solace, affection and sexual relations with his/her mate. Even children of deceased are entitled to award of compensation for loss of love, care and guidance. This emotional aspect has nothing to do with expected lifespan. [Bhogireddi Varalakshmi v. Mani Muthupandi, (2017) 3 SCC 802]

Cases ReportedSupreme Court Cases

Constitution of India — Art. 136 — Grant/Dismissal of SLP — Dismissal of SLP — When warranted: Supreme Court most focus on significant and important cases. Exercise of power while entertaining SLPs is purely discretionary. Availability of alternative remedies and mounting pendency of cases coupled with relative insignificance of legal injury, are factors to be weighed while entertaining SLPs. [Reena Suresh Alhat v. State of Maharashtra, (2017) 3 SCC 119]

Constitution of India — Arts. 213 & 123 and Arts. 249(3), 250(2), 357, 358(1) & 359(1-A) — Obliteration of rights, privileges, obligations or liabilities under an Ordinance upon its ceasing to operate: Laying of Ordinance before the legislative is mandatory. Repromulgation of Ordinances is constitutionally impermissible. Upon an Ordinance ceasing, no rights, privileges, obligations or liabilities survive except where pubic interest or constitutional necessity is demonstrated. [Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1]

Constitution of India — Arts. 226 and 32: As interim order have serious consequences on main relief sought i.e. private university (till date) would henceforth be treated by UGC as State University, said interim order stayed and status quo directed to be maintained till writ petition is disposed of by High Court. [University Grants Commission v. Maharishi Mahesh Yogi Vedic Vishwavidyalaya, (2017) 3 SCC 114]

Criminal Procedure Code, 1973 — Ss. 239 and 482 and S. 227 — Discharge — Proper forum for: Appropriate application under S. 239 must be filed before Magistrate. It is for Magistrate to consider contentions regarding discharge therein. [Umesh v. State of Kerala, (2017) 3 SCC 112]

Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 — S. 14-B — Imposition of damages for default in payment of provident fund dues: Since presence or absence of mens rea and/or actus reus would be a determinative factor in imposing damages under S. 14-B and High Court or appellate authority or original authority found no mens rea and/or actus reus, respondent(s) could not be held liable under S. 14-B. [Provident Fund Commr. v. RSL Textiles (India) (P) Ltd., (2017) 3 SCC 110]

Land Acquisition Act, 1894 — Ss. 4(1) & 6 and 13-A: Once award is passed, there is no question of any correction in notification under S. 4(1) or declaration under S. 6. S. 13-A provides for correction of clerical mistakes in award and that too only within six months. There is no question of an award being passed in respect of a property, for which there is no notification under S. 4(1) and consequently, declaration under S. 6. [State of U.P. v. Abdul Ali, (2017) 3 SCC 108]

Limitation Act, 1963 — Art. 134 and S. 15 — Sale in execution of decree — “When sale becomes absolute”: Sale becomes absolute on termination of proceedings initiated to set aside order of confirmation of sale as per Or. 21 R. 92(1) CPC, not on mere passing of such confirmation order. [United Finance Corpn. v. M.S.M. Haneefa, (2017) 3 SCC 123]

Preventive Detention — Grounds of detention — Relevancy of/Validity of/Inconsistencies in/Defects in grounds: Where detention order is based on more than one grounds, independent of each other, detention order would survive even if one of the grounds is found to be non-existing or legally unsustainable. However, where detention order is founded on one composite ground it would be vitiated if such ground is found fault with. Further held, “grounds” are basic facts on which conclusions are founded which are different from subsidiary facts or further particulars of basic facts. [Gautam Jain v. Union of India, (2017) 3 SCC 133]

Tort Law — Negligence — Compensation — Quantification of, without material evidence and based on assumptions and presumptions: In this case of electrocution suffered by 8 yr old boy, which resulted in amputation of both arms, High Court was correct in holding that victim would have earned about Rs 30,000 p.m. as these conclusions are based on proper materials, hence, no interference therein called for. But award of compensation of (i) Rs 10,00,000 towards loss of companionship, life amenities/pleasure and happiness; (ii) Rs 10,00,000 for pain and suffering, mental distress, trauma and discomfort and inconvenience; (iii) Rs 10,00,000 towards attendant/nursing expenses; and (iv) Rs 5,00,000 for securing artificial/robotic limbs and future medical expenses, are on the higher side. There is no evidence to support award of compensation under these heads and such quantification is based on assumptions and presumptions. Entitlement for compensation under these heads is one thing and quantum of compensation under these heads is another thing, hence, sum reduced from Rs 1,25,00,000 to Rs 90,00,000 with 6% interest. [State of H.P. v. Naval Kumar, (2017) 3 SCC 115]

Cases ReportedSupreme Court Cases

Copyright Act, 1957 — Ss. 51, 14 and 55 — Infringement of copyright in copy-edited version of judgments published in Supreme Court Cases (SCC): Copyrights in copyedited versions of judgments published in Supreme Court Cases (SCC) as recognized and upheld in Eastern Book Company v. D.B. Modak, (2008) 1 SCC 1, affirmed by the directions to appellant-defendants to follow the law laid down in Modak case while publishing, selling and distributing the raw judgments of the Supreme Court with their own inputs. [Relx India (P) Ltd. (Formerly Reed Elsevier India (P) Ltd.) v. Eastern Book Co., (2017) 1 SCC 1]

Tort Law — Employees’ Compensation Act, 1923 — Ss. 30 and 4(1) (c)(ii) — Appeal to High Court — Interference with findings of facts by High Court — When permissible: When there is no perversity in findings of fact of authorities below, interference with findings of fact, impermissible in such circumstances. [Golla Rajanna v. Divl. Manager, (2017) 1 SCC 45]

Service Law — Retirement/Superannuation — Retiral benefits — Gratuity and pension: As there were no departmental proceedings initiated against respondent for alleged discrepancy in stock in store of Department which was noticed after more than five months of retirement of respondent nor any proceedings as envisaged under Art. 351-A resorted to, hence, no interference with impugned judgment affirming order of Single Judge of High Court directing release of remaining amount of pension and gratuity called for. [State of U.P. v. Dhirendra Pal Singh, (2017) 1 SCC 49]

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 — Ss. 13(2), 17 and 34 r/w S. 1(4) of Recovery of Debts Due to Banks and Financial Institutions Act, 1993 — Jurisdiction of Debts Recovery Tribunal (DRT) where amount of debt due is less than Rs 10 lakhs: DRT has no original jurisdiction to entertain suit or application where debt is less than Rs 10 lakhs, but, it can exercise appellate jurisdiction in terms of S. 17 of 2002 Act even if amount involved is less than Rs 10 lakhs. In view of specific bar under S. 34 of 2002 Act, no civil court has jurisdiction to entertain any suit or proceeding in respect of any matter which a DRT or DRAT is empowered to determine the dispute under 2002 Act. Thus, civil court has no right to issue any injunction with reference to any action taken under 2002 Act or under 1993 Act. [State Bank of Patiala v. Mukesh Jain, (2017) 1 SCC 53]

Kerala General Sales Tax Act, 1963 (15 of 1963) — S. 5(2) — First sale of goods — When can be inferred — Second sale exemption — Entitlement to: For being considered as first sale of goods under S. 5(2), the following conditions are to be satisfied: (i) sale is of manufactured goods being other than tea; (ii) sale of the said goods is under a trade mark or brand name; and (iii) sale is by the brand name holder or the trade mark holder within the State. Further, the objective of S. 5(2) of KGST Act is to assess the sale of branded goods by the brand name holder to the market and the inter se sale between brand name holders is not intended to be covered by S. 5(2) of the KGST Act. In present case purported “first sale” was only a device to reduce tax liability, hence assessee not entitled to second sale exemption. [Kail Ltd. v. State of Kerala, (2017) 1 SCC 60]

Prevention of Corruption Act, 1988 — Ss. 19, 13, 7, 10, 11 and 15 — Sanction for prosecution: For IRS officer cadre controlling authority is Finance Minister of India and as such sanction for prosecution granted by him was valid sanction. Further held, fact that in administrative notings different authorities like CVC, DoPT had opined differently, is inconsequential since business of State being complicated, it has necessarily to be conducted through agency of large number of officials and authorities. Besides, ultimate decision to accord sanction was taken by Finance Minister who was the competent authority.Moreover, sanction was accorded after proper application of mind and at no point there was decision not to grant sanction so as to give decision to grant sanction colour of review. Opinion of CVC which was reaffirmed and ultimately prevailed in according sanction cannot be said to be irrelevant. [Vivek Batra v. Union of India, (2017) 1 SCC 69]

Contempt of Court — Civil Contempt — Interpretation/doubt as to order — Contempt petition — When can be considered as review petition to clarify such doubt: As dispute between the parties required determination of date from which interest was required to be paid in terms of court order which was omitted in said order, therefore, issue considered not under contempt jurisdiction but in review jurisdiction. [Dravya Finance (P) Ltd. v. S.K. Roy, (2017) 1 SCC 75]

M.P. Electricity Duty Act, 1949 (10 of 1949) — S. 3(1) — Term “processing” as used in definition of “mines” — Interpretation of: In Expln. (b) to S. 3(1) words, “crushing”, “treating” and “transporting” are words of narrower significance and the word “processing” used between these words should not be given a very wide meaning, for the legislative intent, is narrower. Further, the word “processing” would mean those processes with the help of hands or machineries connected and linked to mining activity and would not include process by which a new or different article other than the one which has been mined, is produced. Therefore, “processing” in the said context would mean activities in order to make the mineral mined marketable, saleable and transportable, without substantially changing the identity of the mineral, as mined. S. 3(1) prescribed different rates of duty depending on the purpose for which the electrical energy is sold and the “rate of duty as percentage of the electricity tariff per unit” for mines was specified as 40. Further, ferromanganese alloy manufactured by the appellant using the mineral manganese at its ferromanganese plant was an entirely different product from its mineral raw material (manganese ore) both physically and even chemically. Also, unlike manganese ore a ferromanganese alloy can never be found in the natural state and it has to be manufactured from the manganese ore and other minerals only. The same logic applied to copper concentrate also, as a different and distinct product comes into existence. Hence, conversion of mineral ores i.e. manganese ore to ferromanganese and copper ore to copper amounts to “manufacturing” and hence was liable to tariff applicable to manufacturing units. [Manganese Ore India Ltd. v. State of M.P., (2017) 1 SCC 81]

Penal Code, 1860 — Ss. 304-B and 498-A r/w S. 113-B, Evidence Act, 1872 — Dowry death — Presumption under S. 113-B — Invocation of: Mere factum of unnatural death in matrimonial home within seven years of marriage is not sufficient to convict accused under Ss. 304-B and 498-A. Only when prosecution proves beyond doubt that deceased was subjected to cruelty/harassment in connection with dowry demand soon before her death, presumption under S. 113-B can be invoked. [Baijnath v. State of M.P., (2017) 1 SCC 101]

Criminal Procedure Code, 1973 — Ss. 340 & 195 — Initiation of prosecution for perjury — Preconditions therefor: Mere fact that a contradictory statement was made in judicial proceeding is not by itself sufficient to justify prosecution for perjury. It must be established that such act was committed intentionally. [Amarsang Nathaji v. Hardik Harshadbhai Patel, (2017) 1 SCC 113]

Infrastructure Laws — Water and Water Resources — Interlinking of river projects/Networking of rivers — Sutlej- Yamuna Canal link — Sharing of river water by State of Punjab with State of Haryana: Haryana is constructing canal on its side by making huge investments but State of Punjab delaying in constructing canal in spite of valid agreements and decree under Art. 131 and orders of Supreme Court to complete it within specified time period, instead State of Punjab enacting the Punjab Termination of Agreements Act, 2004 to discharge itself of its obligations under said agreements and decree and final order of Supreme Court, hence, Punjab Act, held, invalid. [Punjab Termination of Agreement Act, 2004, In Re, (2017) 1 SCC 121]

Hindu Adoption and Maintenance Act, 1956 — S. 12(c) — Applicability: After vesting of undivided shares of other heirs in the said other heirs, adoption has no effect on such vested undivided shares. [Saheb Reddy v. Sharanappa, (2017) 1 SCC 142]