SCC Part
Cases ReportedSupreme Court Cases

2022 SCC Volume 4 Part 4 encapsulates, a very interesting decision of the Supreme Court in Brijmani Devi v. Pappu Kumar, (2022) 4 SCC 497, wherein while criticizing the practise of granting cryptic bail in a casual manner, the Bench expressed,

“It would be only a non speaking order which is an instance of violation of principles of natural justice. In such a case the prosecution or the informant has a right to assail the order before a higher forum.”

Short Notes: 6

Bihar Public Works Contracts Disputes Arbitration Tribunal Act, 2008 (21 of 2008) — Ss. 9(1), 8 and 2(1) — Reference to Arbitration Tribunal: In view of S. 8 of the 2008 Act, if any of provisions of 2008 Act are in conflict with 1996 Act, latter shall prevail to the extent of conflict. When there is no arbitration clause in agreement between parties, provisions of 1996 Act will have no application. Therefore, reference to Arbitration Tribunal will be governed by 2008 Act. [Bihar Industrial Area Development Authority v. Rama Kant Singh, (2022) 4 SCC 489]

Civil Procedure Code, 1908 — S. 100 and Or. 9 R. 13 — Second appeal — Proper mode of disposal — Matters at large in second appeal — Ex parte decree: In this case, second appeal was filed against dismissal of first appeal for default on ground of delay, without any decision on merits in such first appeal. Only permissible course before High Court, held, was to consider validity of such first appellate order. High Court in second appeal, held, erred in treating the matter as an application under Or. 9 R. 13 and setting aside ex parte decree itself, and remanding suit to trial court for decision afresh on merit. [Mamtaz v. Gulsuma, (2022) 4 SCC 555]

Civil Procedure Code, 1908 — S. 25: In this case transfer petition was filed by wife and divorce proceedings were initiated by respondent husband in the Family Court at Chennai 600 km away from Hyderabad, where wife resides. Application of wife seeking transfer of proceedings to Hyderabad, allowed. [Pooja Rathod v. Tarun Rathod, (2022) 4 SCC 514]

Constitution of India — Art. 226 — Writ appeal — Proper mode of disposal — Connected/Related matters — Consolidated disposal — Challenge to land acquisition: All appeals relating to the same acquisition notifications, held, should have been heard and decided together. Hence, this appeal was remanded for decision afresh, to be heard together with the appeals relating to the same acquisition notifications. [M.P. Housing Board v. Satish Kumar Batra, (2022) 4 SCC 559]

Constitution of India — Arts. 25, 21, 14 and 19 — COVID-19 Pandemic — Funeral rights of Parsi Zoroastrian community: In this case, due to concern over public health and safety while preserving the sanctity of the Zoroastrian faith, funeral rights allowed under amicably agreed upon protocol and standard operating procedure (SOP) permitting the claim of Parsi Zoroastrian community to conduct their funeral rights in the Dokhma (Tower of Silence) while complying with the safety standards required during COVID-19 Pandemic. [Surat Parsi Panchayat Board v. Union of India, (2022) 4 SCC 534]

Criminal Procedure Code, 1973 — S. 439 — Grant of bail under S. 439 — Necessity of recording reasons — Extent to which reasons are required in a bail order — Principles clarified: Grant of bail under S. 439 though being a discretionary order, but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course and, thus, order for bail bereft of any cogent reason cannot be sustained. Therefore, prima facie conclusion must be supported by reasons and must be arrived at after having regard to the vital facts of the case and, thus, serious nature of accusations and facts having a bearing in the case cannot be ignored, particularly, when the accusations may not be false, frivolous or vexatious in nature but supported by adequate material brought on record so as to enable a court to arrive at a prima facie conclusion. [Brijmani Devi v. Pappu Kumar, (2022) 4 SCC 497]

Criminal Procedure Code, 1973 — S. 482 — Inherent powers under — Power of quashing of criminal proceedings — When should be exercised: Power of quashing of criminal proceedings should be exercised very sparingly and with circumspection and that too in rarest of rare cases and it is not justified for Court in embarking upon enquiry as to reliability or genuineness or otherwise of allegations made in FIR or complaint. Inherent powers do not confer any arbitrary jurisdiction on Court to act according to its whims and fancies. [Shafiya Khan v. State of U.P., (2022) 4 SCC 549]

Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 — Ss. 7-A and 14-B — Failure to deposit contribution — Imposition of damages for delayed payment: Breach of civil obligations/liabilities committed by employer is sufficient for imposition of penalty or damages. There is no further requirement on authority concerned to examine existence of element of actus reus/mens rea or to examine issue of justification, for imposing damages. [Horticulture Experiment Station v. Provident Fund Organization, (2022) 4 SCC 516]

Insolvency and Bankruptcy Code, 2016 — S. 12-A r/w Ss. 9 and 25(2)(e): Withdrawal of CIRP proceedings, when permissible and proper, explained. [K.N. Rajakumar v. V. Nagarajan, (2022) 4 SCC 617]

Insurance — Contract of Insurance/Policy/Terms/Cover Note — Duties of parties/Uberrima Fides/Uberrimae Fidei/Claim to Insurance money/Insurer’s liability — Obligation to disclose material facts — Mutuality of: Principle of uberrimae fidei i.e. principle of utmost good faith, held, imposes meaningful reciprocal duties owed by the insured to the insurer and vice versa. That is to say, just as the insured has a duty to disclose all material facts, the insurer must also inform the insured about the terms and conditions of the policy that is going to be issued to him and must strictly conform to the statements in the proposal form or prospectus, or those made through his agents. [Manmohan Nanda v. United India Assurance Co. Ltd., (2022) 4 SCC 582]

Insurance — Contract of Insurance/Policy/Terms/Cover Note — Exemption/Exclusion/Restriction/Limitation/Forfeiture Clauses/Negative Covenants: Law surveyed in detail and general principles, summarized regarding when exemption clause may be given effect to, and when may be negated or not given effect to. [Shivram Chandra Jagarnath Cold Storage v. New India Assurance Co. Ltd., (2022) 4 SCC 539]

Insurance — General Insurance — Theft, Burglary and Property Loss Insurance: Delay in informing theft to insurer i.e. alleged violation of a condition of insurance contract in this regard is insufficient to deny claim of insured when FIR regarding theft lodged and also accused arrested and charge-sheeted i.e. when the claim is otherwise genuine and not disputed to be genuine by insurer. [Jaina Construction Co. v. Oriental Insurance Co. Ltd., (2022) 4 SCC 527]

Penal Code, 1860 — S. 34 — Applicability of — When attracted: To attract applicability of S. 34 prosecution is under obligation to establish that there existed common intention which requires prearranged plan. Before a person can be vicariously convicted for criminal act of another, act must have been done in furtherance of common intention of all. In absence of prearranged plan and thus a common intention, even if several persons simultaneously attack the man each one of them would be individually liable for whatever injury he caused and none could be vicariously convicted for act of any or the other. Thus, it is necessary either to have direct proof of prior concert or proof of circumstances which necessarily lead to that inference and incriminating facts must be incompatible with innocence of accused and incapable of explanation or any other reasonable hypothesis. [Indrapal Singh v. State of U.P., (2022) 4 SCC 631]

Prevention of Corruption Act, 1988 — S. 7 — Offence under — When established: Offence under S. 7 relating to public servants taking bribe requires proof of: (a) demand of illegal gratification, and (b) acceptance thereof. Proof of demand of bribe by public servant and its acceptance by him, both are a sine qua non for establishing offence under S. 7. [K. Shanthamma v. State of Telangana, (2022) 4 SCC 574]

Service Law — Promotion — Entitlement to: In this case appellants were promoted as Assistant Director (Official Language) on ad hoc/officiating basis during years 1993-95 and 2000. High Court by impugned judgment recalled judgment dt. 4-11-2011 and affirmed order of Tribunal directing promotion of appellants in accordance with the 2002 Rules on ground that in Mishri Lal, (2011) 14 SCC 739 it was held that the 2002 Rules were not implemented. Said order was held unsustainable. [Medini C. v. BSNL, (2022) 4 SCC 562]

Service Law — Retirement/Superannuation — Retiral benefits — Delay in payment — Entitlement to interest: Where there is delay in paying retirement dues to retired employee, for no fault of his, he is entitled to interest on delayed payment. [A. Selvaraj v. C.B.M. College, (2022) 4 SCC 627]

SCC Part
Cases ReportedSupreme Court Cases

2022 SCC Volume 4 Part 3, consists a very pertinent decision of the Supreme Court wherein it was held  that it cannot be said that the Tribunal will have jurisdiction only if the subject property is disputed to be a waqf property and not if it is admitted to be a waqf property as such interpretation will be against the provisions Section 83(1) of Act.Read the detailed Judgemnt here:  Rashid Wali Beg v. Farid Pindari, (2022) 4 SCC 414]

Short Notes: 3

Arbitration and Conciliation Act, 1996 — Ss. 34 and 5: Award on issues/matters beyond the scope of the arbitration clause which was invoked, as the issues/matters in question pertained to another distinct agreement, arbitration clause in which latter agreement was not invoked, is not valid. Award on lease rental and lease duration i.e pertaining to lease agreement is not permissible, when arbitration has been invoked under dealership agreement. [Indian Oil Corpn. Ltd. v. Shree Ganesh Petroleum, (2022) 4 SCC 463]

Central Goods and Services Tax Act, 2017 — Ss. 39, 16, 49(2) and 59 — Circular No. 26/26/2017-GST dt. 29-12-2017: Rectification of return, on the premise of Form GSTR-2A being non-operational at the relevant time is not permissible. [Union of India v. Bharti Airtel Ltd., (2022) 4 SCC 328]

Criminal Procedure Code, 1973 — S. 482 — Prayer for directions for conduct of impartial investigation: Interim order(s) cannot be passed by High Court, particularly without hearing the affected part(ies). [OLX India B.V. v. State of Haryana, (2022) 4 SCC 390]

Evidence Act, 1872 — Ss. 65-A and 65-B: Copies of electronic evidence are sufficient when duly certified as per S. 65-B. The fact that original electronic evidence was one of the exhibits of the evidence on record, but not played in court, and only the certified copies thereof were played in court, is of no effect. [Taqdir v. State of Haryana, (2022) 4 SCC 321]

Government Contracts and Tenders — Formation of Government Contract — Enlistment/Blacklisting/Downgrading of Contractor/Tenderer — Blacklisting/Debarment: Period of blacklisting, further held, has to be proportionate to nature of offence(s) committed by erring contractor. Tentative decision to blacklist erring suppliers/contractors taken after assessing available materials prior to issuance of show-cause notice cannot be treated as pre-determined decision. Order of blacklisting passed after providing opportunity of hearing thereafter, held, cannot be called as violating principles of natural justice. [State of Odisha v. Panda Infraproject Ltd., (2022) 4 SCC 393]

Service Law — Dismissal/Discharge — Grounds for dismissal/discharge — Dismissal — Proportionality: As allegations of fraud committed by employee concerned on employer Bank were fully established, superannuation of employee concerned in the meantime is not relevant. [United Bank of India v. Bachan Prasad Lall, (2022) 4 SCC 358]

Service Law — Penalty/Punishment — Proportionality/Quantum of punishment: Substitution of punishment of removal with compulsory retirement, when warranted, explained. [Umesh Kumar Pahwa v. Uttarakhand Gramin Bank, (2022) 4 SCC 385]

Service Law — Pension — Entitlement to pension — Vested/accrued rights — Divesting of vested/accrued rights with retrospective effect — Permissibility: Amendment having retrospective operation divesting employee of benefit already granted to him under existing Rules, violative of Arts. 14 and 16 of the Constitution. Employees who had opted for Pension Scheme had vested/accrued rights and any amendment to contrary made with retrospective effect taking away vested right accrued to employee under existing Rules was impermissible. Further held, non-availability of financial resources cannot be justification to take away vested right accrued to employees and that too which was for their socio-economic security. Pension is not a bounty and it is the duty of appellant to make funds available to protect vested rights of employees accrued in their favour. Punjab State Coop. [Agricultural Development Bank Ltd. v. Coop. Societies, (2022) 4 SCC 363]

Service Law — Pension — Qualifying period/service — Parity: Though it is settled law that the Rules applicable in matters of determination of pension are those which are in force at the time of retirement, but, held, that does not mean that employer can depart from this principle arbitrarily and confer benefit of Rules in force at the time of appointment, for computation of pension upon one employee and deny the same benefit to another employee who is similarly situated. [G. Sadasivan Nair v. Cochin University of Science & Technology, (2022) 4 SCC 404]

Wakf Act, 1995 — Ss. 85 and 83 (as amended by Amendment Act 27 of 2013) and Ss. 86 to 90, 93, 94(1), 4 to 7, 51 and 52 — Wakf Tribunal — Jurisdiction of Wakf Tribunal: Proper forum for suit for permanent injunction in respect of wakf property, and power to issue temporary injunctions and whether subject property is disputed to be wakf property, or, admitted to be wakf property, is Wakf Tribunal and not civil court. However, examination of remedies under the Wakf Act, 1995 indicates that jurisdiction of civil court is not totally excluded. The 1995 Act makes a specific reference to court/civil court also in certain places. Ss. 86, 90 and 93 make specific reference to “court”. S. 68(6) goes a step further by making a reference to “civil court”. Thus, on a cumulative reading of various provisions of the 1995 Act, held, bar of jurisdiction of civil court under the 1995 Act is not total and omnipotent and that there may be cases which may still be entertained by civil courts. Further held, question of bar of jurisdiction of the civil court, has been left for judicial determination. [Rashid Wali Beg v. Farid Pindari, (2022) 4 SCC 414]

SCC Part
Cases ReportedSupreme Court Cases

In 2022 SCC Volume 4 Part 2, read this very pertinent matter of the Supreme Court wherein it was decided whether culpable homicide tantamounts to murder or not. Read the full Judgment here: [State of Uttarakhand v. Sachendra Singh Rawat, (2022) 4 SCC 227]

Short Notes: 4

Arbitration and Conciliation Act, 1996 — S. 34 — Delay beyond the period of 3 months plus 30 days: If a petition is filed under S. 34 beyond the prescribed period of three months, the Court has the discretion to condone the delay only to an extent of thirty days, provided sufficient cause is shown. Further, S. 5 of the Limitation Act is not applicable to condone the delay beyond the period prescribed under S. 34(3). [Mahindra & Mahindra Financial Services Ltd. v. Maheshbhai Tinabhai Rathod, (2022) 4 SCC 162]

Arbitration and Conciliation Act, 1996 — S. 34: Amended S. 34, i.e. as amended by Arbitration and Conciliation (Amendment) Act, 2015 is not applicable to S. 34 proceedings commenced prior to 23-10-2015. [Ratnam Sudesh Iyer v. Jackie Kakubhai Shroff, (2022) 4 SCC 206]

Armed Forces — Penalty/Punishment — Substitution of punishment of dismissal with compulsory retirement: Due to peculiar circumstances of the case, punishment of dismissal substituted with compulsory retirement. [Brijesh Chandra Dwivedi v. Sanya Sahayak, (2022) 4 SCC 189]

Constitution of India — Art. 227 — Supervisory jurisdiction of High Court: Principles summarised regarding nature and scope of supervisory jurisdiction of High Court. [Garment Craft v. Prakash Chand Goel, (2022) 4 SCC 181]

Constitution of India — Arts. 341 and 342 — SCs/STs: Implication of “for the purposes of this Constitution … in relation to that State”, is that benefit of status as SC/ST or OBC is granted only in relation to a State on the basis of ordinary and permanent residence of the castes/classes of persons concerned in that State. Benefit of status of SC/ST or OBC in one State is thus not automatically nor ordinarily transferable to another State upon migration. [Bhadar Ram v. Jassa Ram, (2022) 4 SCC 259]

Consumer Protection Act, 1986 — S. 13 — Delay in filing written statement, beyond the period of 15 days in addition to 30: The 5-Judge Bench in Hilli case did not make a distinction between applications for condonation which had been decided and those which were pending on the date of the decision. Thus, applications for condonation of delay that were pending or decided before 4-3-2020 would both equally be entitled to the benefit of the position in Mampee, (2021) 3 SCC 673 which directed Consumer Fora to render a decision on merits. [Diamond Exports v. United India Insurance Co. Ltd., (2022) 4 SCC 169]

Education Law — Professional Colleges/Education — Medical and Dental Colleges — Reservation of seats/Quota/Exemption/Priority in Medical/Dental Institutions — Criteria for reservation: In this case, it was held that as per reservation scheme of UT, first priority was given to candidates whose parents were domiciles of UTs and candidate had studied in institutions of the UTs for specified classes, that is, 8 to 12. But petitioner had studied only primary classes in the UTs, due to which High Court by a well-reasoned judgment denied relief to her. Decision of High Court, affirmed, and not interfered with. In another judgment, relief had been given but that was because of the peculiar circumstances of that case and because the candidate had studied from Classes 9 to 12 in the UTs. [Muskan Samir Modasia v. Union of India, (2022) 4 SCC 225]

Environment Law — General Principles of Environmental Law — Precautionary Principle/Sustainable Development/Inter-Generational Equity Principle — Delhi Metro — Providing effective transportation vis-à-vis ecology — Phase IV of MRTS Project: Earlier phases of project had already resulted in loss of vegetation as well as flora and fauna in certain areas. Phase IV of MRTS Project may be a further threat to the ecology of NCT of Delhi/NCR. Effectuation of precautionary principle as well as principle of sustainable development, by ensuring citizens’ participation in the preservation of the environment and ecology, emphasized. Directions issued regarding role, involvement and collective responsibility of civil society without ignoring importance of governmental responsibility for reafforestation. [T.N. Godavarman Thirumulpad, In re v. Union of India, (2022) 4 SCC 289]

Hindu Succession Act, 1956 — Ss. 14(1) & (2) and S. 30: A restricted estate can be created by a will in favour of a female, so long as it is a new and independent right and does not amount to the recognition of a pre-existing right as per the principles laid down in V. Tulasamma, (1977) 3 SCC 99. Objective of S. 14(1) is to create an absolute interest in case of a limited interest of wife where such limited estate owes its origin to the law as it stood then. Objective cannot be that a Hindu male who owned self-acquired property is unable to execute a will giving a limited estate to a wife if all other aspects including maintenance are taken care of. If it is held so it would imply that if wife is disinherited under will it would be sustainable but if a limited estate is given it would mature into an absolute interest irrespective of intent of testator. That cannot be objective of S. 14(1). [Jogi Ram v. Suresh Kumar, (2022) 4 SCC 274]

Income Tax Act, 1961 — S. 40(a)(ii-b) (as inserted by Finance Act, 17 of 2013) — Income chargeable under head “profits and gains of business or profession” — Amount levied exclusively on State-owned undertaking: Claim as deduction in books of State-owned undertaking is not permissible and same is liable to income tax. Gallonage fee, licence fee and shop rental (kist), held, are in the nature of fees imposed under Abkari Act of 1902. These are fees payable for licences granted in favour of State-owned undertakings. Aspect of “exclusivity” under S. 40(a)(ii-b), held, has to be viewed from nature of undertaking on which levy is imposed and not on number of undertakings on which levy is imposed. Hence, held, S. 40(a)(ii-b) applicable to all of the abovesaid fees. [Kerala State Beverages Manufacturing & Marketing Corpn. Ltd. v. CIT, (2022) 4 SCC 240]

Penal Code, 1860 — Ss. 299 and 300 — Whether culpable homicide tantamounts to murder or not: Principles reiterated regarding how to determine whether culpable homicide tantamounts to murder or not. [State of Uttarakhand v. Sachendra Singh Rawat, (2022) 4 SCC 227] 

Public Sector, Government Companies and Statutory Corporations — Employment and Service matters — Pension: Employees of autonomous bodies cannot claim, as a matter of right, same service benefits on a par with government employees merely because such autonomous bodies might have adopted Government Service Rules and/or in Governing Council there may be representative of Government and/or merely because such institution is funded by State/Central Government, more so, when such employees are governed by their own Service Rules and service conditions. State Government and autonomous Board/body cannot be put on a par. [State of Maharashtra v. Bhagwan, (2022) 4 SCC 193] 

Railways and Metros — Financing, Construction and Operation of Projects — Phase IV of Delhi Metro Project: Duties, liabilities and obligations of State Government and Central Government, regarding bearing of operational loss, repayment of loan and sharing of land cost, clarified. [M.C. Mehta v. Union of India, (2022) 4 SCC 317]

SCC Part
Cases ReportedSupreme Court Cases

In 2022 SCC Volume 4 Part 1, read a very interesting case, wherein the grievance of the builder was that out of total of 1134 apartments constructed and sold by them, the owners of merely 51 apartments have joined together and invoked the jurisdiction of the National Consumer Commission and that such a miniscule percentage of consumers cannot seek to file the complaint in a representative capacity. To know what happened in this case, read the Supreme Court decision in Brigade Enterprises Ltd. v. Anil Kumar Virmani, (2022) 4 SCC 138

Short Notes: 3

Arbitration and Conciliation Act, 1996 — S. 31(7)(b): Post-award interest on the interest amount awarded i.e. compound interest, reiterated, is grantable by Arbitral Tribunal. Arbitral Tribunal may award interest on the sum directed to be paid by the award, meaning a sum inclusive of principal sum adjudged and interest. [UHL Power Co. Ltd. v. State of H.P., (2022) 4 SCC 116]

Arbitration and Conciliation Act, 1996 — Ss. 11, 8, 16 and 34 — Arbitrability of disputes i.e. the issue of dispute(s) being non-arbitrable/being barred by limitation: While dealing with petition under S. 11, the Court by default would refer the matter when contentions relating to non-arbitrability are plainly arguable and in such case, the issue of non-arbitrability is left open to be decided by the Arbitral Tribunal. [Mohd. Masroor Shaikh v. Bharat Bhushan Gupta, (2022) 4 SCC 156]

Constitution of India — Arts. 15(4) and 16(4): Reservation within All-India quota (AIQ) seats in undergraduate and postgraduate seats in medical courses in State-run institutions for OBCs (non-creamy layer) by Noti. dt. 29-7-2021, held, valid. Rationale for the same, extensively explained. [Neil Aurelio Nunes (OBC Reservation) v. Union of India, (2022) 4 SCC 1]

Constitution of India — Arts. 15(6) and 16(6): Implementation of reservation for Economically Weaker Sections (EWS) in undergraduate and postgraduate seats in all-India quota (AIQ) in medical courses in State-run institutions for academic year 2021-2022, allowed. Challenge to validity of criteria for identification of EWS category, requires detailed hearing. [Neil Aurelio Nunes (EWS Reservation) v. Union of India, (2022) 4 SCC 64]

Consumer Protection Act, 1986 — Ss. 24-A and 2(1)(g) — Complaint for deficiency in service — Limitation: In this case, complaint was filed by appellant Cooperative Housing Society for refund of excess taxes and charges paid by appellant to municipal authorities, due to alleged deficiency of service of builder to obtain occupancy certificate that resulted in payment of higher taxes and water charges to municipal authority by members of Society. The Supreme Court held that continuous failure to obtain occupancy certificate is continuing wrong, therefore, complaint cannot be said to be barred by limitation. [Samruddhi Coop. Housing Society Ltd. v. Mumbai Mahalaxmi Construction (P) Ltd., (2022) 4 SCC 103]

Consumer Protection Act, 2019 — S. 35(1)(c) r/w Ss. 38(11) and 2(5)(v) r/w Or. 1 R. 8 CPC — Complaint on behalf of or for the benefit of, all consumers under S. 35(1)(c) — When permissible: Invocation of S. 35(1)(c), by some of the purchasers/complainants against the builder of residential complex i.e. complaint in a representative capacity is not permissible, in the absence of sameness of interest between all purchasers of apartments. Sine qua non for invoking S. 35(1)(c) is that all consumers on whose behalf or for whose benefit the provision is invoked, should have the same interest. Further, it is necessary to include in such consumer complaint under S. 35(1)(c), sufficient averments that show sameness of interest. Sameness of interest vis-à-vis sameness of cause of action, distinguished. [Brigade Enterprises Ltd. v. Anil Kumar Virmani, (2022) 4 SCC 138]

Contempt of Court — Civil Contempt — Matters at large/Review etc. of earlier order/Orders that may be passed — Orders that may be passed in exercise of contempt jurisdiction: In this case, the High Court in contempt proceedings entered into areas which were alien to the issue as to whether the judgment dt. 27-7-2020 was complied with or not. It was held that it was a transgression of the limits of the contempt jurisdiction and was unnecessary and inappropriate. [Neil Aurelio Nunes v. Union of India, (2022) 4 SCC 98]

Cooperative Societies — General Issues — Cooperative Housing/Housing Society — Allotment of plot by housing society — Whether valid — Said plot whether was truly reserved as parking area in layout plan as alleged by the parties challenging the allotment: In this case, award was passed by Divisional Cooperative Officer acting as arbitrator under S. 61(1)(b) of the 1964 Act setting aside the allotment of the plot in question on the ground that it was reserved as parking area in layout plan, held, not justified as the said plot was not so reserved in the layout plan. Furthermore, persons challenging the allotment were not doing so bona fide, as they sought allotment of the same plot to themselves. Hence, held, High Court was justified in setting aside the award. [Velagacharla Jayaram Reddy v. M. Venkata Ramana, (2022) 4 SCC 129]

Cases ReportedSupreme Court Cases

Read four articles and nine significant decisions of Supreme Court in Part 5 of 2022 SCC Volume 3.

Appointment of Arbitrators: In this article, the author discusses the issue of validity of party appointed arbitrators in the case of multi-arbitrator tribunals, such as a three-member Arbitral Tribunal. Unilateral Appointment of Arbitrators: Unfairness and Unequal Treatment of the Parties by Shamik Sanjanwala, (2022) 3 SCC (J-32)]

Arbitration Act, 1940 — Ss. 30, 33 and 39 — Arbitral award — Scope of interference with, by Court — Law summarized: Once arbitrator had interpreted clauses of contract by taking a possible view and had gone to great lengths to analyse several reasons offered by appellant claimant to justify its plea that it was entitled to extension of time to execute the contract, Division Bench of High Court under S. 39 ought not to have sat over said decision as an appellate court seeking to substitute its view for that of the arbitrator. [Atlanta Ltd. v. Union of India, (2022) 3 SCC 739]

Arbitration and Conciliation Act, 1996 — Ss. 11 and 34: Award passed by an arbitrator appointed under 1996 Act by Court with consent of parties despite the existence of M.P. Madhyastham Adhikaran Adhiniyam, 1983 is binding, when the same attains finality i.e. is not appealed against. Subsequent invocation of arbitration under the 1983 Act regarding identical claims i.e. after an award has already been rendered by the arbitrator appointed under 1996 Act is not permissible. [M.P. Housing and Infrastructure Development Board v. K.P. Dwivedi, (2022) 3 SCC 783]

Child Sexual Assault: This article aims to briefly discuss various nuances of child sexual abuse as adjudicated in some important judgments to illuminate relevant substantive and procedural notions of the POCSO Act. In addition, with the help of recent global trends based on judicial interpretation and legal research, few submissions have also been culled out to reinforce the legal regime on CSA in India. “Skin-To-Skin” Touch for Defining Child Sexual Assault: Interpretational Vagaries of the POCSO Provisions by Dr G.K. Goswami & Aditi Goswami (2022) 3 SCC (J-16)]

Constitution of India — Art. 226 — Interference with award of Industrial Tribunal — Permissibility — Extent of: In absence of any jurisdictional error or violation of natural justice or error of law apparent on face of record, interference by High Court in merits of controversy as appellate court, impermissible. [Indian Overseas Bank v. Om Prakash Lal Srivastava, (2022) 3 SCC 803]

Constitution of India — Arts. 19, 14 and 21: Law summarised regarding when proportionality test to be applied for determining reasonableness of restrictions or limitations on the rights concerned, specifically in the context of Art. 19(6) and more generally under Arts. 14 and 21. [Akshay N. Patel v. RBI, (2022) 3 SCC 694]

Foreword to Law of Writs: Foreword to V.G. Ramachandran’s Law of Writs (Eastern Book Company, 7th Edn., 2022) by Justice M.N. Venkatachaliah. Foreword to Law of Writs by Justice M.N. Venkatachaliah (2022) 3 SCC (J-1)]

Insurance — Contract of Insurance/Policy/Terms/Cover Note — Duties of parties/Uberrima Fides/Uberrimae Fidei/Claim to Insurance money/Insurer’s liability: The duties of the insured and insurer to disclose all material facts at contract formation/pre-contract stage or renewal stage, held, include the duty of the insurer or its agent to notify the insured of any material change(s) in the policy terms at the pre-contract or renewal stage. Thus, held, insurer cannot contend that the insured were under an obligation to enquire into and satisfy themselves in respect thereof, if a new term/modified term had been introduced in the policy at the renewal stage. This duty of the insurer to disclose material terms/new or altered terms at the pre-contract or renewal stage, is all the more onerous where insurance policies are in standard form and consumers hardly have any choice in the matter or any power to negotiate alteration of the terms of the policy. [Jacob Punnen v. United India Insurance Co. Ltd., (2022) 3 SCC 655]

Land Acquisition Act, 1894 — S. 54, 23(1-A) and 18 — Additional compensation: Interference with award of additional compensation, by Reference Court in exercise of its power under S. 18, when permissible, explained. [Ambalal Babulal Patel v. ONGC, (2022) 3 SCC 691]

Registration Act, 1908 — Ss. 17(1)(e), 17(1)(b) and 17(2)(v): Award or document providing for effectuating a division of joint family properties in the future, held, fell under S. 17(2)(v) and was thus exempt from compulsory registration. Test in such a case is whether document/award itself creates an interest in a specific immovable property or merely creates a right to obtain another document of title. If a document/award does not by itself create a right or interest in immovable property, but merely creates a right to obtain another document, which will, when executed create a right in the person claiming relief, the former document does not require registration and is accordingly admissible in evidence. [K. Arumuga Velaiah v. P.R. Ramasamy, (2022) 3 SCC 757]

Service Law — Promotion — Incentive Scheme/Financial Upgradation — Modified Assured Career Progression (MACP) Scheme: In this case, it was held that Cl. 8.1 of the Scheme stipulated that on implementation of Sixth CPC’s recommendations, grade pay of Rs 5400 would be in two bands viz. PB-2 and PB-3 which would be treated as separate grade pays for grant of upgradation under the MACP Scheme. R-1 and R-2 erroneously granted grade pay of Rs 6600 for PB-3 under the MACP Scheme, which was later modified/corrected as GP of Rs 5400 as per Cl. 8.1. The High Court by impugned judgment granted grade pay of Rs 6600 to respondents, which was held not sustainable. [Enforcement Directorate v. K. Sudheesh Kumar, (2022) 3 SCC 649]

Service Law — Reinstatement/Back Wages/Arrears — Reinstatement with back wages — Entitlement to — Principles summarized — Wrongful termination — Entitlement to back wages: Denial of back wages to appellant CA, whose termination was found unjustified, not proper. [Pradeep v. Manganese Ore (India) Ltd., (2022) 3 SCC 683]

Waiver of the Right to Object under the Arbitration and Conciliation Act, 1996: This article seeks to trace the origin of Section 4 of the A&C Act and to analyse it in the context of the other provisions of the Act and recent judgments of the courts in India. Section I sets out chronologically the discussions of the States in an attempt to provide the context in which Article 4 of the Model Law came to be introduced. Against the background set out in Section I, Section II analyses the text of Section 4 of the A&C Act and the conditions governing its application with a focus on the interplay between Section 4 and other provisions of the Act. By analysing Section 4 of the A&C Act in light of the judgments of the courts in India, these sections hope to provide an insight into the functioning of Section 4 of the A&C Act and if it is in fact furthering its objective of efficiency. Waiver Of The Right To Object Under The Arbitration And Conciliation Act, 1996 by Medha Rao and C.K. Nandakumar, (2022) 3 SCC (J-4)]

Cases ReportedSupreme Court Cases

In this Part, read a very interesting Supreme Court decision, held that, wherein the amounts paid by resident Indian end-users/distributors to non-resident computer software manufacturers/suppliers, as consideration for the resale/use of the computer software through EULAs/distribution agreements, is not the payment of royalty for the use of copyright in the computer software, and that the same does not give rise to any income taxable in India.[Engineering Analysis Centre of Excellence (P) Ltd. v. CIT, (2022) 3 SCC 321]

Short Notes: 9

Constitution of India — Art. 136 — Appeal against acquittal: Principles summarized regarding circumstances under which Supreme Court may entertain an appeal against an order of acquittal and pass order of conviction. [Rajesh Prasad v. State of Bihar, (2022) 3 SCC 471]

Income Tax Act, 1961 — S. 9(1)(vi) r/w S. 90: Amounts paid by resident Indian end-users/distributors to non-resident computer software manufacturers/suppliers, as consideration for the resale/use of the computer software, not royalty, hence, not taxable in India. [Engineering Analysis Centre of Excellence (P) Ltd. v. CIT, (2022) 3 SCC 321]

Cases ReportedSupreme Court Cases

In 2022 SCC Volume 3 Part 2, read a very interesting case wherein a case where a Constable’s name was recommended by the Superintendent of Police but the same was dropped down by the Inspector General of Police for promotion under the 10% quota of outstanding performance for inclusion in the B-I List for promotion to the post of Head Constable in the year 2004, Supreme Court held that mere recommendation of the SP at the initial stage is not sufficient to claim a right for promotion.[Sushil Kumar v. State of Haryana, (2022) 3 SCC 203]

Short Notes: 3

Arbitration and Conciliation Act, 1996 — Ss. 37 and 34 — Setting aside of arbitral award — Jurisdiction of Court under S. 37: In an appeal under S. 37, Court cannot enter into merits of claim. As per settled position of law, an award can be set aside under Ss. 34/37, only if award is found to be contrary to: (a) fundamental policy of Indian law; or (b) interest of India; or (c) justice or morality; or (d) if it is patently illegal. [Haryana Tourism Ltd. v. Kandhari Beverages Ltd.,(2022) 3 SCC 237]

Civil Procedure Code, 1908 — Or. 37 R. 2 — Summary suit — Leave to defend — Grant of — Principles to be followed: While dealing with an application seeking leave to defend, held, it would not be a correct approach to proceed as if denying leave is the rule or that leave to defend is to be granted only in exceptional cases or only in cases where defence would appear to be a meritorious one. On the issue of raising of triable issues, if defendant indicates that he has a fair or reasonable defence, he is ordinarily entitled to unconditional leave to defend unless there be any strong reason to deny leave. Further held, even if there remains a reasonable doubt about probability of defence, sterner or higher conditions could be imposed while granting leave to defend but, denying leave would be ordinarily countenanced only in such cases where defendant fails to show any genuine triable issue and court finds defence(s) to be frivolous or vexatious. [B.L. Kashyap & Sons Ltd. v. JMS Steels & Power Corpn., (2022) 3 SCC 294]

Criminal Procedure Code, 1973 — S. 439 — Bail: In this case of brutal murder of appellant complainant’s husband by tying him with rope to gate and then beating him by pipe and belt, leading to his death, bail was granted by High Court to both respondent-accused. Eyewitnesses identified accused in test identification parade. Entire incident was captured/recorded in CCTV footages and mobile phone. Pipe and belt used in commission of crime were recovered. It was held that in such serious matter and looking to gravity of offences and considering statements of eyewitnesses and that entire incident was recorded in CCTV footages and mobile phone, High Court, held, committed grave error in releasing accused respondents on bail. Hence, impugned judgments and orders passed by High Court releasing respondents on bail were quashed and set aside. [Jayaben v. Tejas Kanubhai Zala, (2022) 3 SCC 230]

Criminal Procedure Code, 1973 — S. 439 — Bail: Principles summarized regarding considerations to be balanced while deciding to grant bail. [Sunil Kumar v. State of Bihar, (2022) 3 SCC 245]

Election — Election Petition/Trial — Practice and Procedure for Election Trial — Affidavit/Verification: Election petition based on allegations of corrupt practices not supported by an affidavit in Form 25, as prescribed under R. 94-A of the 1961 Rules cannot be thrown out at threshold. Non-filing of affidavit or non-filing of proper verification is technical defect which is curable by allowing candidate to file proper affidavit. [A. Manju v. Prajwal Revanna, (2022) 3 SCC 269]

Industrial Disputes Act, 1947 — S. 11-A — Rights and duties of employer and employee concerned in disciplinary proceedings: In terms of S. 11-A, where finding of misconduct is recorded in domestic enquiry, authorities under the Act have full power and jurisdiction to reappraise evidence and to satisfy themselves whether evidence justified finding of misconduct. However, where enquiry is found defective, employer can lead evidence to prove misconduct before the authorities concerned. [U.P. SRTC v. Gajadhar Nath, (2022) 3 SCC 190]

Insolvency and Bankruptcy Code, 2016 — S. 7(5): Disposal of petition at admission stage with directions to settle the matter, without going into merits is not permissible. Mere initiation of the process of settlement is not sufficient for dismissal of petition. Only two courses of action are available to the adjudicating authority in a petition under S. 7, namely: (i) the adjudicating authority must either admit the application under S. 7(5)(a), or, (ii) it must reject the application under S. 7(5)(b). IBC does not provide for the adjudicating authority to undertake any other action, but for either of these two choices. [E.S. Krishnamurthy v. Bharath Hi-Tecch Builders (P) Ltd., (2022) 3 SCC 161]

Insolvency and Bankruptcy Laws — Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 — Regn. 34 — IBBI’s Circular dt. 12-6-2018: Recording of reasons for fixation/determination of IRP/RP’s fee is necessary. Ad hoc determination of fee/non-consideration of basis of the claim or its reasonableness is not permissible. [Devarajan Raman v. Bank of India Ltd., (2022) 3 SCC 254]

Karnataka Agricultural Produce Marketing (Regulation and Development) Act, 1966 (27 of 1966) — S. 65(2) proviso 2 & Expln. and S. 65(2-A)(i-a) and Schedule — Market fee — Liability to pay — Determination of — Processed spices notified as agricultural produce in Sch. — When chargeable: Raw spices imported from outside State, cleaned, processed and sold within market area of appellant Market Committee by respondent defined as “trader” under the Act, held, chargeable for payment of market fee under S. 65 (2). If said produce is sold in the market area of appellant, the importer should realise the market fee from the purchaser and pay the same to the Committee. Clarified, that if one merely imports notified agricultural produce from outside the State for the purpose of cleaning and processing without selling the processed produce within the market area, the said trader would not be liable to pay market fee. [APMC Yashwanthapura v. Selva Foods, (2022) 3 SCC 313] 

Penal Code, 1860 — Ss. 302 and 302/34 or S. 326 [S. 300 Thirdly] — Causing injury(ies) to vital part of body which injury(ies) were the actual cause of death: In this case, death occurred six days after the injury(ies) were inflicted. It was held that such case, held, would still fall under S. 302, as such injury(ies) inflicted on vital part of body were the actual cause of the death. [State of U.P. v. Jai Dutt, (2022) 3 SCC 184]

Penal Code, 1860 — Ss. 302/34 — Identification of accused when assailants are not known to the eyewitnesses who witnessed the incident/assault — Manner in which is required to be done: In this case of murder by shooting from pistol, it was held that alleged involvement of appellant-accused and two other co-accused in the incident, held, could not be established beyond reasonable doubt as eyewitnesses to the shooting were not aware of identity of assailants. Nor was identity of the assailants established in any other reliable manner. Hence, appellant and similarly situated co-accused, were acquitted. [Suryavir v. State of Haryana, (2022) 3 SCC 260]

Penal Code, 1860 — Ss. 302/34 — Murder of one person by shooting him with firearm — Culpability of accused who gave exhortation to murder: In this case, common intention to murder was established against Accused 2 who had exhorted Accused 1 to shoot deceased dead with the firearm. Hence, it was held that Accused 2 rightly convicted for murder under S. 302 with the aid of S. 34. [Omkar Singh v. Jaiprakash Narain Singh, (2022) 3 SCC 281]

Penal Code, 1860 — Ss. 302/34 or Ss. 120-B/302: In this case, accused was not shown to share common intention to murder nor was a party to conspiracy to murder. Neither was involvement in any conspiracy to murder proved against appellant herein Accused 2, nor could it be established that he shared common intention to murder. Hence, conviction of Accused 2 under Ss. 302/34 was quashed. [Mukesh v. State of M.P., (2022) 3 SCC 241]

Service Law — Appointment — Cancellation/Refusal of appointment — Requirement of submitting NOC from erstwhile employer at time of interview — Delay: In this case, for the Post of Asstt. Professor (College Cadre), appellant appllied for NOC on 22-3-2016, which was received by authority concerned on 4-4-2016. Written examination was conducted on 5-3-2017, result whereof was declared on 6-11-2017. Appellant qualified written examination and in anticipation that non-receipt of NOC may disqualify him from appointment filed writ petition in High Court praying for issuance of direction to employer to release NOC. Pursuant to interim order dt. 7-12-2017 passed by High Court in appellant’s favour, appellant was provisionally interviewed. Results of final selection were declared on 15-12-2017, while actual appointments made on 12-7-2018. Appellant received NOC on 6-6-2018 and submitted it to Haryana PSC on 8-6-2018 i.e. even before actual appointments were made. Thus held, there was no delay on part of appellant. Delay was on part of employer in issuing NOC and that too after intervention of High Court. Further held, once it was found that there was no delay/lapse on part of appellant in producing NOC, which was produced before appointments were made, and last candidate who was appointed i.e. R-4 had secured less marks than appellant, there was no justification in denying him appointment. He cannot be punished for no fault of his. Courts below erred in rejecting appellant’s claim to appointment. Further directed that on principle of “no work no pay” appellant was not entitled to back wages but entitled to continuity of service for purpose of seniority, pay fixation, etc. [Narender Singh v. State of Haryana, (2022) 3 SCC 286]

Service Law — Promotion — Competent Authority/Recommending Authority: Authority with power to accord approval to recommendation for promotion, held, is competent authority for grant of promotion and not the recommending authority.  [Sushil Kumar v. State of Haryana, (2022) 3 SCC 203]

Service Law — Seniority — Determination of seniority — Ad hoc/Fortuitous appointees/Promotees — Regularisation of, from date of initial appointment: Employees who were appointed on ad hoc basis and qualified typing test at later stage, in absence of scheme of rules for determining seniority cannot be placed senior to employees who were appointed on substantive basis after undergoing regular selection process. [Shyam Sunder Oberoi v. Tis Hazari Courts, (2022) 3 SCC 197]

Succession Act, 1925 — Ss. 63 and 59 r/w Ss. 67, 68, 45 and 47 of the Evidence Act, 1872 — Validity of will — Proof — Essentials for: Intention of testator to make testament must be proved, and propounder of will must examine one or more attesting witnesses and remove all suspicious circumstances with regard to execution of will. [Murthy v. C. Saradambal, (2022) 3 SCC 209]

Cases ReportedSupreme Court Cases

In a pertinent decision, Supreme Court while rejecting claim for interest the compared it to the Shakespearean character Shylock and remarked,

“…the holder of the Bond has received their ‘pound of flesh’, but they seem to want more. Additional sum in our estimation is not merited as SIBCO has already received their just entitlement and burdening the defendant with any further amount towards interest would be akin to Shylockian extraction of blood from the defendant.”

[Small Industries Development Bank of India v. SIBCO Investment (P) Ltd., (2022) 3 SCC 56]

Short Notes: 10

Arbitration and Conciliation Act, 1996 — S. 12(5) r/w Seventh Schedule and Ss. 11, 14 and 15 — Neutrality of arbitrators: Arbitral Tribunal comprising of the officers of one of the parties are not eligible to continue as such even when such Arbitral Tribunal stood constituted prior to 23-10-2015 i.e. prior to the Amendment Act, 2015 coming into force. Further, the earlier Arbitral Tribunal having lost its mandate cannot be permitted to continue and therefore a fresh arbitrator has to be appointed. [Ellora Paper Mills Ltd. v. State of M.P., (2022) 3 SCC 1]

Arbitration and Conciliation Act, 1996 — S. 34 — Award in excess of claim — Non-establishment of: Relevance of reserving of right to furnish further details of expenditure, determined. [State of Haryana v. Shiv Shankar Construction Co., (2022) 3 SCC 109]

Arbitration and Conciliation Act, 1996 — Ss. 34(4), 31, 34(1) and 34(2-A): Remission of matter to arbitrator under S. 34(4) i.e. for elimination of grounds for setting aside the award cannot be permitted in absence of findings on the contentious issues. [I-Pay Clearing Services (P) Ltd. v. ICICI Bank Ltd., (2022) 3 SCC 121]

Arbitration and Conciliation Act, 1996— S. 11(6): Appointment of arbitrator by parties and arbitration proceedings pursuant thereto, when valid, even after filing of an application under S. 11(6), explained. Relevance of non-pursuing of such application, and filing of statement of claim by applicant before Arbitral Tribunal constituted during pendency of S. 11(6) application, determined. When settled principle of law i.e. that after an application has been filed for appointment of an arbitrator under S. 11(6), the party concerned forfeits its right to appoint an arbitrator, can be deviated from, expounded. [Durga Welding Works v. Railway Electrification, (2022) 3 SCC 98]

Civil Procedure Code, 1908 — Or. 41 R. 31 — First appeal — Reasons to be assigned for decision by first appellate court — Mandatory requirement of compliance with Or. 41 R. 31: First appellate court is mandatorily required to comply with requirements of Or. 41 R. 31 and non-observance of these requirements lead to infirmity in judgment. Appellate court’s jurisdiction involves a rehearing of appeal on questions of law as well as fact. First appeal is a valuable right, and, at that stage, all questions of fact and law decided by trial court are open for reconsideration. Judgment of appellate court must, therefore, reflect conscious application of mind and must record court’s findings, supported by reasons for its decision in respect of all issues, along with contentions put forth and pressed by parties. [Manjula v. Shyamsundar, (2022) 3 SCC 90]

Constitution of India — Arts. 323-A and 323-B: Power of scrutiny of Tribunals created under this provision lies only with Division Bench of High Court within whose jurisdiction Tribunal concerned falls. [Union of India v. Alapan Bandyopadhyay, (2022) 3 SCC 133]

Hindu Marriage Act, 1955 — Ss. 13(1)(i-a) and (i-b): In this case, there was concurrent findings of courts below on cruelty and desertion and irretrievable breakdown of marriage was also taking place. Hence, it was held that no interference was called for with divorce decree. [Neha Tyagi v. Deepak Tyagi, (2022) 3 SCC 86]

Maharashtra Village Panchayats Act, 1959 (3 of 1959) — Ss. 14-B(1) and (2): Appeal filed before Divisional Commissioner against order passed by Collector under S. 14-B(1) declining to disqualify Sarpanch/Member of Panchayat for allegedly failing to lodge accounts of election expenses within time and in prescribed manner, is not maintainable. Only limited window available to Divisional Commissioner under S. 14-B(2) is where Collector under S. 14-B(1) disqualifies Sarpanch/Member of Panchayat, to remove such disqualification or to reduce period thereof in deserving cases i.e. power under S. 14-B(2) gets triggered only after order of disqualification is passed under S. 14-B(1). Further, no power of review conferred either under S. 14-B(1) or S. 14-B(2). [Shobhabai Narayan Shinde v. Commr., (2022) 3 SCC 35]

Mines and Minerals — Illegal mining — Violation of environmental law: Permissibility and validity of ban on mining activities by earlier Court order when mining operations conducted despite such ban based on rider or stopgap arrangement permitted by Court with regard to sand mining considering its importance in construction activities and loss to public exchequer, explained. [State of Bihar v. Pawan Kumar, (2022) 3 SCC 102]

Penal Code, 1860 — S. 304 Pt. II and S. 300 Exceptions 2 and 4: In this case of culpable homicide not amounting to murder, there was no pre-meditation or pre-planning and incident was result of sudden quarrel in which accused exercised his right of private defence, but exceeded the limit. Hence, while confirming conviction under S. 304 Pt. II, sentence modified to 2 yrs’ RI with fine of Rs 5000 and default stipulation of 3 months’ RI. [Govindan v. State, (2022) 3 SCC 82]

Penal Code, 1860 — S. 498-A: In this case, victim immolating herself in her matrimonial home leading to her death in hospital. Concurrent findings of facts recorded by both courts below on harassment and/or torture and/or cruelty by appellant mother-in-law of victim, on appreciation of evidence, stand established. Therefore, appellant, held, rightly convicted under S. 498-A. [Meera v. State, (2022) 3 SCC 93]

Practice and Procedure — Delay/Laches/Limitation — Filing of petitions/applications/suits/appeals/all other proceedings: There was extension of limitation period for all proceedings before courts and tribunals due to COVID-19 Pandemic. Earlier order dt. 23-3-2020, (2020) 19 SCC 10, extending such limitation period, though was brought to an end by order dt. 8-3-2021, order dt. 23-3-2020, held, restored due to spread of the new variant of COVID-19, drastic surge in the number of COVID cases across the country and adversities faced by litigants in the prevailing conditions.  Said restoration shall be as per directions and clarifications. [Cognizance for Extension of Limitation, In re, (2022) 3 SCC 117]

Practice and Procedure — State as a Litigant/Party — Delay/Laches/Limitation — Unexplained delay by Revenue/State: Supreme Court has already categorised these cases as “certificate cases”, hence held, appeal is not maintainable under Art. 136 of the Constitution. [Commr. of Customs v. Volex Interconnect (India) (P) Ltd., (2022) 3 SCC 159]

Reserve Bank of India Act, 1934 — S. 45-MB — RBI Circulars/Guidelines/Directions: For “public interest” RBI is empowered to issue any directive to any banking institution, and to prohibit alienation of an NBFC’s property. Further, RBI has wide supervisory powers over financial institutions like SIDBI (defendant), in furtherance of which, any direction issued by RBI, deriving power from the RBI Act or the Banking Regulation Act is statutorily binding on the defendant. [Small Industries Development Bank of India v. SIBCO Investment (P) Ltd., (2022) 3 SCC 56]

Service Law — Departmental Enquiry — Employee’s right of representation — Right to be represented by counsel of one’s choice — Extent of: There is no absolute right in favour of delinquent officer to be represented by counsel of his choice in departmental proceedings and same can be restricted by employer. Only requirement is that delinquent officer must get fair opportunity to represent his case. [Rajasthan Marudhara Gramin Bank v. Ramesh Chandra Meena, (2022) 3 SCC 44]

Specific Relief Act, 1963 — S. 19(b): Suit for specific performance against whom not enforceable: Specific performance, held, cannot be enforced against such purchaser or their transferees as they would fall within exception of transferee for value who had paid money in good faith and without notice of original contract. [Seethakathi Trust Madras v. Krishnaveni, (2022) 3 SCC 150]

U.P. Imposition of Ceiling on Land Holdings Act, 1960 (1 of 1961) — Ss. 3(17) and 3(9) — Sub-lessee of original government lessee: Sub-lessees of original government lessees are merely ostensible tenure-holders of land, while government lessees continued to be original holders i.e. land in question is merely held by sub-lessee on behalf of original lessees. Terms of original government lease deed though provide for sub-lease for agricultural purposes but sub-lessees cannot claim independent tenancy rights unless stipulations therefor in the government lease and the sub-lease have been complied with. [Hardev Singh v. Prescribed Authority, (2022) 3 SCC 21]

Cases ReportedSupreme Court Cases

In 2022 SCC Volume 2 Part 4, read a very interesting decision, wherein a death row convict subjected a 5-year-old girl to rape, killed her by strangulation, and then disposed of her body, tied in a gunny bag, into a stream and the 3-Judge Bench of the Supreme Court finding hope for reformation and rehabilitation commuted his death sentence to life imprisonment. [Irappa Siddappa Murgannavar v. State of Karnataka, (2022) 2 SCC 801]

Short Notes: 6

Central Educational Institutions (Reservation in Admission) Act, 2006 (5 of 2007) — S. 3 provisos 2(a) & (b) and Ss. 3(i), (ii) & (iii) and Ss. 2(i-a) & (i-b) (as amended in 2012): Manner of interpretation and applicability of special provisions of amended S. 3 provisos 2(a) & (b) excluding general provisions of Ss. 3(i), (ii) & (iii), explained in detail. Amended S. 3 proviso 2 is applicable to University located in State of Manipur which is one of the States of “Specified North-Eastern Region” in terms of S. 2(ia). S. 3 provisos 2(a) & (b) is applicable to “Specified North-Eastern Region” in S. 2(i-a) and not limited only to the tribal States covered by the Sixth Schedule to the Constitution. This became possible after the amendment of S. 3 and insertion of S. 3 provisos 2(a) & (b) by the Central Educational Institutions (Reservation in Admission) Amendment Act, 2012 (Amendment Act). [Kshetrimayum Maheshkumar Singh v. Manipur University, (2022) 2 SCC 704]

Re S. 3 provisos 2(a) & (b) and Ss. 3(i), (ii) & (iii) and Ss. 2(i-a) & (i-b) (as amended in 2012), Central Educational Institutions (Reservation in Admission) Act, 2006 (5 of 2007) manner of interpretation and applicability of special provisions of amended S. 3 provisos 2(a) & (b) excluding general provisions of Ss. 3(i), (ii) & (iii), explained in detail. [Kshetrimayum Maheshkumar Singh v. Manipur University, (2022) 2 SCC 704]

Constitution of India — Sch. X Paras 2(1)(a) and (2) r/w Art. 191(2): Judicial interference with disqualification order issued under by Speaker under the provision, when permissible and warranted, explained. [Kshetrimayum Biren Singh v. Speaker, Manipur Legislative Assembly, (2022) 2 SCC 759]

Re Sch. X Paras 2(1)(a) and (2) r/w Art. 191(2), Constitution of India judicial interference with disqualification order issued under by Speaker under the provision, when permissible and warranted, explained. [Kshetrimayum Biren Singh v. Speaker, Manipur Legislative Assembly, (2022) 2 SCC 759]

Education Law — Professional Colleges/Education — Medical and Dental Colleges — Reservation of seats/Quota/Exemption/Priority in Medical/Dental Institutions — Generally —Postgraduate/Superspeciality courses: State Government providing reservation for in-service doctors in superspeciality courses in final stages of admission for the academic year 2020-2021, held, cannot be permitted. [Prerit Sharma v. Bilu B.S., (2022) 2 SCC 751]

State Government providing reservation for in-service doctors in superspeciality courses in final stages of admission for the academic year 2020-2021 cannot be permitted. [Prerit Sharma v. Bilu B.S., (2022) 2 SCC 751]

Electricity Act, 2003 — S. 9 and S. 2(15) r/w S. 42(4) — Electricity distribution system — Wheeling charges for use of distribution system: Additional surcharge on wheeling charges under S. 42(4), if consumer does not receive supply of electricity from the distribution licensee but uses the system, is not applicable to captive consumers. Ordinary consumers under S. 2(15) to whom S. 42(4) is applicable, clarified. Rationale why such additional surcharge is justified, explained. Rights of captive consumers distinguished from ordinary consumers. Captive consumers, held, do not have an obligation to pay additional surcharge under S. 42(4) even if they are not receiving electricity from the distribution licensee. [Maharashtra State Electricity Distribution Co. Ltd. v. JSW Steel Ltd., (2022) 2 SCC 742]

Re S. 9 and S. 2(15) r/w S. 42(4), Electricity Act, 2003 qua wheeling charges for use of distribution system, captive consumers, do not have an obligation to pay additional surcharge under S. 42(4) even if they are not receiving electricity from distribution licensee. [Maharashtra State Electricity Distribution Co. Ltd. v. JSW Steel Ltd., (2022) 2 SCC 742]

Energy, Power and Electricity — Electricity — Tariff — Exemption provision: Repealing statute withdrawing exemption provided in repealed statute in simple, clear and unambiguous language, said exemption provision, held, needs to be interpreted literally and applied rigorously and strictly. Recourse cannot be had to any other principle of interpretation, when the words are clear and unambiguous. Thus, held, charitable educational institutions registered under the provisions of the Societies Registration Act and/or under the Maharashtra Public Trusts Act, are not entitled to any exemption from levy/payment of electricity duty on or after 8-8-2016 i.e. from the date on which Maharashtra Electricity Duty Act, 2016 (2016 Act) came into effect. [State of Maharashtra v. Shri Vile Parle Kelvani Mandal, (2022) 2 SCC 725]

Repealing statute withdrawing exemption provided in repealed statute in simple, clear and unambiguous language, said exemption provision needs to be interpreted literally and applied rigorously and strictly. Recourse cannot be had to any other principle of interpretation, when words are clear and unambiguous. [State of Maharashtra v. Shri Vile Parle Kelvani Mandal, (2022) 2 SCC 725]

Labour Law — Domestic/Departmental Enquiry — Acquittal in criminal proceedings — Effect: Principles reiterated regarding invocation of cl. (1)(g) of Sch. IV of the MRTU & PULP Act, 1971, for setting aside dismissal order. Applicability of said cl. (1)(g), also explained. [Maharashtra SRTC v. Dilip Uttam Jayabhay, (2022) 2 SCC 696]

Motor Vehicles Act, 1988 — S. 173 — Appeal: Growing number of appeals by claimants, insurers and vehicle owners against award passed by Tribunal are resulting in large pendency of appeals before various High Courts. Idea of “Motor Vehicle Appellate Tribunals” mooted and detailed suggestions given. [Rasmita Biswal v. National Insurance Co. Ltd., (2022) 2 SCC 767]

Penal Code, 1860 — Ss. 302, 376, 364, 366-A and 201 — Rape and murder of 5 yr old girl by strangulation: Low age of victim cannot be considered as only or sufficient factor by Supreme Court for imposing death sentence. Sentences awarded to appellant under Ss. 376, 364, 366-A and 201 IPC, upheld. However, considering mitigating circumstances, death sentence awarded under S. 302, is commuted to life imprisonment with stipulation that appellant shall not be entitled to premature release/remission before undergoing actual imprisonment of 30 yrs. Further held, further sentences awarded shall run concurrently and not consecutively. [Irappa Siddappa Murgannavar v. State of Karnataka, (2022) 2 SCC 801]

Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 — Ss. 24(1)(a), 25(1) and 114(1) & (2) — Acquisition proceedings: Saving of provisions of the Land Acquisition Act, 1894 and retrospectivity of provisions of the 2013 Act, explained in detail. [Maharashtra Vidarbha Irrigation Development Corpn. v. Mahesh, (2022) 2 SCC 772]

Re Ss. 24(1)(a), 25(1) and 114(1) & (2), Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 saving of provisions of Land Acquisition Act, 1894 and retrospectivity of provisions of the 2013 Act, explained in detail. [Maharashtra Vidarbha Irrigation Development Corpn. v. Mahesh, (2022) 2 SCC 772]

Cases ReportedSupreme Court Cases

Central Goods and Services Tax Act, 2017 — Ss. 54 and 2(59) — Refund of unutilised input tax credit (“ITC”) — Restriction of, to input goods alone and not to input services: Validity of restriction of refund of unutilised input tax credit, affirmed. Cl. (ii) of the first proviso to S. 54(3), held, amounts to a restriction and not a mere condition of eligibility. Under the first proviso to S. 54(3), a refund can be allowed only in the eventualities envisaged in cls. (i) and (ii) and the expression “other than” in the proviso operates as a limitation or restriction. Proviso (ii) embodies the concept of an inverted duty structure and states that the refund of unutilised ITC shall be allowed only when the credit has accumulated because the rate of tax of inputs is higher than the rate of tax on output supplies. Further, input is defined in S. 2(59) to mean goods other than the capital goods. Also, Expln. I to S. 54 is a clear indicator that in respect of domestic supplies, it is only unutilised credit which has accumulated on the rate of tax on input goods being higher than the rate of output supplies of which a refund can be allowed. [Union of India v. VKC Footsteps (India) (P) Ltd., (2022) 2 SCC 603]

Insolvency and Bankruptcy Code, 2016 — S. 60(5): Grant of stay/injunction under provisions of IBC against termination of contract entered into with corporate debtor is not permissible, when: (i) The contract is terminated dehors insolvency proceedings under IBC i.e. there exists no nexus between the termination notice and insolvency resolution proceedings, and (ii) Criteria laid down in Gujarat Urja, (2021) 7 SCC 209 are not satisfied, namely: (a) the contract is central to the success of CIRP, and (b) corporate debtor would not be able to maintain itself as a “going concern” on its termination. [TATA Consultancy Services Ltd. v. SK Wheels (P) Ltd. (Resolution Professional), (2022) 2 SCC 583]

Land Acquisition Act, 1894 — Ss. 23, 18 and 54 — Compensation — Review: In this case, it was held that all submissions and circumstances had been considered in judgment under review, to affirm compensation @ Rs 120 per square yard awarded by Reference Court. There was no error apparent on record in judgment of which review was sought, Asha Ram, (2021) 17 SCC 289, hence, review petitions were dismissed. [Asha Ram v. U.P. Awas Evam Vikash Parishad, (2022) 2 SCC 567]

Penal Code, 1860 — S. 34 — Imposition of vicarious liability: Imposition of vicarious liability with aid of S. 34, when permissible and requirements of the same, explained. Significance of amendment made to S. 34 in 1870 adding the phrase “in furtherance of the common intention”, also discussed. Necessity of proving that accused on whom vicarious liability is sought to be imposed shared common intention, determined. Case law surveyed in detail and principles summarized regarding how common intention is to be inferred and determined in each case. [Jasdeep Singh v. State of Punjab, (2022) 2 SCC 545]

Sales Tax and VAT — Assessment Order — Passing of fresh assessment orders after remand by appellate authority: Exercise of writ jurisdiction while alternative remedy available to challenge fresh assessment orders, not sustainable. [State of A.P. v. S. Pitchi Reddy, (2022) 2 SCC 569]

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 — S. 34 r/w Ss. 13 and 17 — Bar on jurisdiction of civil court under S. 34 of the SARFAESI Act — Applicability of: Proper forum for challenging the proceedings under S. 13 of the SARFAESI Act is DRT under S. 17 of the SARFAESI Act i.e. as opposed to by civil suit. DRT, held, has sufficient jurisdiction under S. 17 to consider whether respondent was not a secured creditor so far as the appellant is concerned and whether there was no amount due and payable by the plaintiff-appellant to respondent. Mere mentioning and using the word “fraud”/“fraudulent”, held, is not sufficient to satisfy the test of “fraud”. A pleading/using the word “fraud”/“fraudulent” without any material particulars as required in terms of Or. 6 R. 4 CPC, would not tantamount to pleading of “fraud”. [Electrosteel Castings Ltd. v. UV Asset Reconstruction Co. Ltd., (2022) 2 SCC 573]

Cases ReportedSupreme Court Cases

Arbitration and Conciliation Act, 1996 — Ss. 31(7)(a), 28 and 34 — Award of interest: Arbitrator cannot award interest contrary to the terms of the agreement/contract between the parties. Bar under specific clause of the contract/agreement that no interest would be payable upon earnest money or security deposit or amounts payable to contractor under contract. In such a case, Arbitral Tribunal independently of the contract and on equitable grounds and/or to do justice, cannot award interest pendente lite or future interest. [Union of India v. Manraj Enterprises, (2022) 2 SCC 331]

Arbitration and Conciliation Act, 1996 — Ss. 34 and 28(3) — Setting aside of award on ground of patent illegality — What constitutes “patent illegality” — Explained: When arbitrator fails to decide matter in accordance with terms of contract governing parties, it will attract “patent illegality ground” as it amounts to gross contravention of S. 28(3). [State of Chhattisgarh v. SAL Udyog (P) Ltd., (2022) 2 SCC 275]

Civil Procedure Code, 1908 — Or. 21 R. 16 Expln. and Ss. 47 and 146: Transferee of rights in the property, which is the subject-matter of the suit, held, can obtain execution of a decree without separate assignment of decree. The objective is to avoid multifarious proceedings to determine the issue of assignment. Thus, the issue of assignment can be determined in the execution proceedings itself. [Vaishno Devi Construction v. Union of India, (2022) 2 SCC 290]

Civil Procedure Code, 1908 — S. 25 — Transfer of cases — Matrimonial dispute — Multiple proceedings between same parties — Transfer and consolidation of all proceedings before one court — When warranted: In this case petitioner wife was resident of Bengaluru and respondent husband, resident of Chennai. Petitioner wife filed two cases before the Family Court at Bengaluru i.e.: (1) petition under Guardians and Wards Act, 1890 for permanent custody of child, and (2) for restitution of conjugal rights. Respondent husband filed petition for divorce before Family Court at Chennai. All these petitions were pending for adjudication. It was held that it is in interest of justice that all these matters be heard by the same court. Hence, petition filed by respondent husband for divorce before Family Court at Chennai transferred to Family Court at Bengaluru. Principal Judge, Family Court at Bengaluru directed to assign these matters to the same court. [D. Raja Rajeswari v. R. Sathish Kumar, (2022) 2 SCC 329]

Coal Mines Pension Scheme, 1998 — Para 15(1)(b) r/w Para 15(2) — Nature of the Scheme and entitlement to benefit of: In this case, appellant’s husband opted to receive 90% pension during his lifetime as provided under Para 15(1)(b), consequent to which on his death on 12-1-2011, his widow was entitled to receive lump sum amount equal to 100 times his full monthly pension in addition to family pension. However, her application for payment of lump sum amount in terms thereof rejected vide order dt. 22-1-2013 on ground that Para 15(1)(b) was abolished on 21-2-2011 and 10% surrendered amount was refunded to all pensioners with interest on 30-1-2012. High Court by impugned judgment dismissed her petition challenging order dt. 22-1-2013, on ground of lack of territorial jurisdiction. 1988 Scheme was framed as measure of social security for ensuring socio-economic justice for employees in coal sector. Moreover, pension being deferred portion of compensation for rendering long years of service, a hard-earned benefit accruing to employee which is in nature of property, held, sum due to employee directed to be disbursed to appellant within stipulated time after adjusting amount refunded earlier. [Veena Pandey v. Union of India, (2022) 2 SCC 379]

Contract and Specific Relief — Performance of Contract — Time of Performance — Time of the Essence — Time whether of the essence of the contract — Determination of: Whether time is of the essence in a contract, has to be culled out from the reading of the entire contract as well as the surrounding circumstances and merely having an explicit clause may not be sufficient to make time of the essence of the contract. [Welspun Specialty Solutions Ltd. v. ONGC, (2022) 2 SCC 382]

Criminal Law — Public Accountability, Vigilance and Prevention of Corruption — Erring Official(s)/Dereliction of duty/Misfeasance or Malfeasance in office/Tort of Breach of Statutory Duty/Compensation/Relief/Costs/Probe/Punishment — Delay/laches in filing appeal: If more than Rs 5 crores is at stake, authorities, held, must recover it from the officer(s) concerned. [CCE v. Design Dialogues (India) (P) Ltd., (2022) 2 SCC 327]

Criminal Law — Public Accountability, Vigilance and Prevention of Corruption — Constitutional Authorities/Functionaries/High Public Offices — Security of Prime Minister (PM) of India: Judicial inquiry into breach and lapses as the convoy of PM was stuck on a flyover for around 20 minutes, ordered. Directions also issued for seizure, preservation and safe custody of all records relating to PM’s scheduled tour of State concerned on 5-1-2022. [Lawyers Voice v. State of Punjab, (2022) 2 SCC 399]

Environment Law — Mining and Industries — Mining lease — Grant of — Preparation of District Survey Report (DSRs) through private consultants for identification of potential sites for mining — Whether necessary: In view of provision for constitution of Sub-Divisional Committees comprising of officers of State Government from various Departments for identification of potential sites for mining in the Enforcement and Monitoring Guidelines for Sand Mining, 2020, and notification issued by MoEF and CC of 2016, held, there was no necessity of DSRs being prepared through private consultants. It would also unnecessarily burden public exchequer. [State of Bihar v. Pawan Kumar, (2022) 2 SCC 348]

Insolvency and Bankruptcy Code, 2016 — Ss. 238-A and 61: Non-supply of free copy of impugned order does not affect, and thus, shall not extend the limitation period for filing an appeal under S. 61 IBC. Scheme laid down in S. 421(3) of the Companies Act and S. 61(2) IBC, distinguished. [V. Nagarajan v. SKS Ispat & Power Ltd., (2022) 2 SCC 244]

Insolvency and Bankruptcy Code, 2016 — Ss. 30, 31 and 60(5) r/w S. 12-A: Withdrawal/Modification of resolution plan by successful resolution applicant, after its submission by Resolution Professional to adjudicating authority but before its approval by adjudicating authority is not permissible. [Ebix Singapore (P) Ltd. v. Educomp Solutions Ltd. (CoC), (2022) 2 SCC 401]

Insurance — Repudiation/Rescission of Insurance Policy — Repudiation of claim by insurer on ground of non-disclosure of relevant information/data — Tenability of: In this case there was non-disclosure of previous hydrology data of one year before obtaining policy by insured as said data was not available and the same was made known to the insurer. It was held that the Insurer was aware of earlier insurance policy obtained by respondent. Moreover, insurer did not ask for such hydrology data of previous year, even though the insured had informed it that it did not have the data for the said year. Thus, held, it cannot be said that there was suppression or non-disclosure of hydrology data or any fraud from side of respondent. Hence held, repudiation of claim on ground of non-disclosure/suppression of material information, not justified in this case. [Oriental Insurance Co. Ltd. v. Malana Power Co. Ltd., (2022) 2 SCC 365]

Land Acquisition Act, 1894 — Ss. 23, 18 and 4 — Determination of market value of land: When there are no material changes for period between two Notifications under S. 4, market value has to be determined for both notifications at the same rate. [Anil Kumar Soti v. State of U.P., (2022) 2 SCC 268]

Negotiable Instruments Act, 1881 — Ss. 138 and 142(a) — Complaint on behalf of company — Manner and form in which to be filed: Complaint filed by Managing Director on behalf of Company, held, cannot be dismissed only on ground that name of Managing Director is mentioned first followed by post held in company. There could be a format where Company’s name is described first, suing through Managing Director but merely because name of Managing Director is stated first followed by post held in Company, held, would not amount to a fundamental defect warranting dismissal of the complaint at the threshold. [Bhupesh Rathod v. Dayashankar Prasad Chaurasia, (2022) 2 SCC 355]

Negotiable Instruments Act, 1881 — Ss. 138/141 — Quashment of proceedings against corporate debtor under S. 138 NI Act after issuance of moratorium under S. 14 IBC: Ss. 138/141 of the NI Act proceeding against corporate debtor is covered by S. 14 (1)(a) IBC. Hence, corporate debtor cannot be proceeded against under S. 138 of the NI Act. [Nag Leathers (P) Ltd. v. Dynamic Mktg. Partnership, (2022) 2 SCC 271]

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 — S. 13(3-A) r/w Ss. 13(2) and 13(4) — Challenging of auction-sale/SARFAESI action taken by Bank, on the premise of violation/non-compliance with S. 13(3-A) i.e. on account of alleged non-consideration of borrower’s representation post Bank’s notice: When there is disingenuous conduct on part of the borrower to gain indulgence, unfulfilled assurances and promises, and their unwillingness to pay, borrower had waived and was estopped from challenging the violation of S. 13(3-A) of SARFAESI Act. [Arce Polymers (P) Ltd. v. Alphine Pharmaceuticals (P) Ltd., (2022) 2 SCC 221]

Service Law — Appointment — Invalid appointment/Wrong appointment/Illegal appointment: In this case, appellants who had participated in selection process for post of English Stenographers appointed on leave vacancies for period of one month against posts of Hindi Stenographers, in terms of select list dt. 14-7-1987, since there were no vacancies for post of English Stenographers. Their appointment letters specifically stated that their appointments would be terminated once regular employees resume duties. Pursuant to fresh examination conducted for posts of  Stenographers — Appellants failing typing/speed test conducted for post of Hindi Stenographers. Despite that services of R-1 to R-3 terminated and appellants appointed on 5-6-1990 against posts held by them. The Supreme Court held,  that appointment of appellants and termination of services of R-1 to R-3 were rightly quashed by High Court since: (i) No appointment could be made in the year 1990 on basis of select list dt. 14-7-1987 whose validity was only for one year; (ii) Appellants had failed speed test for post of Hindi Stenographers; and (iii) Appellants were never appointed pursuant to due selection procedure as against respondents who were appointed after following due selection procedure. Further held, continuation of services of appellants pursuant to interim order passed by High Court were untenable and their services liable to be terminated. [Wahab Uddin v. Meenakshi Gahlot, (2022) 2 SCC 372]

Service Law — Departmental Enquiry — Employee’s right of representation — Choice of representation — Scope of: Right of representation by a counsel of one’s choice is not an essential element of natural justice and its denial does not invalidate enquiry. Representation is often restricted by law as also by Certified Standing Orders. Right to be legally represented depends on applicable rules governing such representation and where rules are silent, there is no absolute right to be legally represented. However, entitlement to fair hearing is not dispensed with and what fairness requires depend on nature of investigation and consequences it may have on persons affected by it. Where charge is of severe and complex nature, request to be represented through counsel should be considered, which is facet of fair hearing, applicable to judicial as well as quasi-judicial decisions. [SBI v. M.J. James, (2022) 2 SCC 301]

Succession Act, 1925 — S. 63 — Genuineness of will — Determination of: Evidence of meeting of the requirements of S. 63 r/w S. 68 of the Evidence Act, held, must inspire confidence and be credible. Requirements of S. 63 cannot be fulfilled merely upon showing of mechanical or technical compliance with the stipulations specified therein. [State of Haryana v. Harnam Singh, (2022) 2 SCC 238]

Cases ReportedSupreme Court Cases

In this part read a very important matter, wherein a relative committed rape on the prosecutrix and none of the family members believed her and in fact beat her up when she narrated the incident, Supreme Court found it unfortunate that even the sister-in-law (Jethani) and mother-in-law though being women did not support the prosecutrix.[Phool Singh v. State of Madhya Pradesh, 2021 SCC OnLine SC 1153]

Short Notes: 6

Civil Procedure Code, 1908 — S. 25: In this case, transfer petition was filed by the wife. Transfer petition was allowed with directions for an attempt for securing an amicable settlement through mediation. [Deepa Mohan Naik v. Chandra Bhusan Pal, (2022) 2 SCC 54]

Coal Mines (Special Provisions) Act, 2015 — S. 11 — Cancellation of coal mine allotments — Effect of, on contracts between allottees whose allotments stood cancelled and their contractors (“prior contractors”): Entitlement of such prior contractors under such contracts, to mine coal and perform the said contracts, against subsequent allottees of the coal mines is discretionary in nature i.e. dependent upon the discretion of the subsequent allottee, even in cases where the allotment is again conferred on the same allottee post cancellation. [Punjab State Power Corpn. Ltd. v. Emta Coal Ltd., (2022) 2 SCC 1]

Consumer Protection Act, 2019 — Ss. 107, 106, 34, 47 and 58: Repeal of 1986 Act/Enhancement of pecuniary jurisdiction of Consumer Forums by virtue of new enactment i.e. 2019 Act does not affect pending proceedings. Proceedings instituted before the commencement of the 2019 Act, held, shall continue before the Consumer Forums corresponding to those under the 1986 Act. [Neena Aneja v. Jai Prakash Associates Ltd., (2022) 2 SCC 161]

Criminal Procedure Code, 1973 — S. 439 — Forum shopping to obtain bail: In this case, accused was charged under special Act and IPC. Vires of special Act under which accused was charged, was challenged and quashment of the proceedings was sought before High Court under Art. 226 of the Constitution, upon failure to obtain bail as per law. By impugned order, respondent was released on bail by High Court, that too by way of interim relief, without at all considering seriousness of offences alleged against respondent, and other settled parameters for grant of bail in such cases. High Court did not at all even consider allegations with respect to offences under IPC. Such order, held, wholly impermissible. Hence, impugned order was quashed and respondent directed to surrender forthwith to face trial. [State of Maharashtra v. Pankaj Jagshi Gangar, (2022) 2 SCC 66]

Criminal Procedure Code, 1973 — Ss. 218 to 223(a) to (g) and S. 223 proviso — Trial whether to be joint or separate — Charging accused and trying them together: Law summarised regarding principles to be applied by trial court for determination of joint trial/separate trial/retrial. [Nasib Singh v. State of Punjab, (2022) 2 SCC 89]

Employees’ State Insurance Act, 1948 — Ss. 1(4) proviso, 90, 87, 2(12), 2(14-AA) and 75 — Power to grant exemption: In respect of factory belonging to local authority, unless power of exemption is exercised by Government, it would be covered by provisions of S. 1(4) and liable to pay contribution. The power to grant exemption vests only with appropriate Government which can be done only after consulting Corporation and following the prescribed procedure. Said power cannot be availed by Insurance Court while deciding application under S. 75. [ESI Corpn. v. Kakinada Municipality, (2022) 2 SCC 56]

Penal Code, 1860 — S. 306 r/w Ss. 107 and 34 — Abetment of suicide — Essence of abetment — What is: Principles summarized regarding factors to determine abetment of suicide. [Mahendra K.C. v. State of Karnataka, (2022) 2 SCC 129]

Penal Code, 1860 — S. 376 — Rape: Principles summarised regarding when conviction of accused on sole testimony of victim/prosecutrix, with or without corroboration is warranted.  [Phool Singh v. State of M.P., (2022) 2 SCC 74]

Service Law — Appointment — Compassionate appointment: For appointment on compassionate ground, policy prevalent at time of death of deceased employee only is required to be considered and not subsequent policy. [State of M.P. v. Ashish Awasthi, (2022) 2 SCC 157]

Service Law — Appointment — Tenure appointment: In absence of any statutory bar under the applicable Rules, a tenure appointment made through direct recruitment by following due procedure cannot be termed as contrary to law. In a direct recruitment, appointment on a regular or tenure basis is at discretion of employer, especially when the applicable Rules do not prohibit. Therefore, there is no arbitrariness involved in not considering extension of tenure of appointee. Definition of direct recruitment would mean recruitment through a process stipulated under the applicable Rules. Therefore, by no stretch of imagination, can one interpret that all direct recruitments are to be made by regular employment in absence of any statutory bar under the applicable Rules. [Union of India v. N. Murugesan, (2022) 2 SCC 25]

Service Law — Promotion — Incentive Scheme/Financial Upgradation — Assured Career Progression Scheme (ACP Scheme) — Entitlement to benefit of — Requirements of: In this case, OM dt. 9-8-1999 offering Assured Career Progression was intended as “safety net” to deal with problem of genuine stagnation and hardship faced by employees due to lack of adequate promotional avenues. OM dt. 9-8-1999 subsequently clarified by OM dt. 18-7-2001 providing that an employee who refuses regular vacancy-based promotion offered before grant of ACP Scheme benefit would become ineligible to grant of ACP Scheme benefits. Thus, S and M not entitled to benefit of ACP Scheme since it was not a case of lack of promotional opportunities but an employee opting to forfeit offered promotion. As far as K and V are concerned since they were not offered regular promotion but conditional promotion on officiating basis subject to reversion, their refusal to accept officiating promotion cannot deprive them of benefits of ACP Scheme. Since K and V had superannuated in meantime, consequential relief under instant order directed to be made available to them within stipulated period. [Union of India v. Manju Arora, (2022) 2 SCC 151]

Cases ReportedSupreme Court Cases

In Part 3 of Volume 3, read the Supreme Court decision in Jaypee Kensington Boulevard Apartments Welfare Association v. NBCC (India) Ltd.,(2022) 1 SCC 401, wherein the Court while the Adjudicating authority has the authority to disapprove the resolution plan approved by the Committee of Creditors (CoC), it cannot modify the same.

Short Notes: 17

Armed Forces — Seniority — Determination of: While adjudging seniority of candidates selected in one and same selection, placement in order of merit can be adopted for determination of seniority but where selections are held separately by different recruitment authorities, principle of initial date of appointment/continuous officiation may be adopted while adjudging inter se seniority in absence of any rule or guidelines in determining seniority to contrary. [Sudhir Kumar Atrey v. Union of India, (2022) 1 SCC 352]

Constitution of India — Art. 226: Scope of interference with quantum of punishment imposed by disciplinary authority is limited. [Union of India v. Ram Karan, (2022) 1 SCC 373]

Human and Civil Rights — Humanitarian and Natural Disasters, Epidemics and Pandemics — Epidemics and Pandemics — COVID-19 Pandemic: Validity of cancellation of CBSE and ICSE Class XII Board Examination for academic year 2020-2021 in public interest and interest of students, and declaration of results on the basis of internal assessment marks as propounded by respective Boards in their Schemes, upheld. [Mamta Sharma v. CBSE, (2022) 1 SCC 368]

Insolvency and Bankruptcy Code, 2016 — Ss. 30(2), 31 and 61 — Decision of Committee of Creditors (CoC) on resolution plan — Bindingness of — Role and view of CoC — Primacy of: In corporate insolvency resolution process, the role of CoC is akin to that of a protagonist, giving finality to the process (subject, of course, to approval by the adjudicating authority), who takes the key decisions in its commercial wisdom and also takes the consequences. Further, the decision as to whether the corporate debtor be resurrected or not, by acceptance of a particular resolution plan, is essentially a business decision and hence, is left to the committee consisting of the financial creditors, that is, CoC but, with the requirement that the resolution plan, for its approval, ought to muster not less than 66% votes of the voting share of the financial creditors. [Jaypee Kensington Boulevard Apartments Welfare Assn. v. NBCC (India) Ltd., (2022) 1 SCC 401]

Penal Code, 1860 — S. 304-B — Dowry death: In this case, victim died within 2 yrs of marriage due to consumption of insecticide/poison in her matrimonial home. Conviction of husband of deceased, was confirmed. Conviction of mother-in-law of the deceased, held, not justified in this case as there was no specific evidence regarding any of the ingredients of dowry death being established against her. Sweeping statements that husband and in-laws of deceased had inflicted cruelty, or, that husband and his mother had done so, without specifying their roles, held, not sufficient to convict appellant mother-in-law, though sufficient to ground conviction of appellant husband. [Kuljit Singh v. State of Punjab, (2022) 1 SCC 385]

Penal Code, 1860 — Ss. 141, 142 and 149 and Ss. 302/149 — Unlawful assembly: Mere fact that appellant was not brave enough to conceal where victim was hiding did not make him a part of the unlawful assembly that had the common object to murder the victim. Hence, conviction of appellant-accused under Ss. 302/201/147/148/149, set aside. [Taijuddin v. State of Assam, (2022) 1 SCC 395]

Penal Code, 1860 — Ss. 302/149 or Ss. 326/149 and Ss. 325/149, 324/149, 323/149 and 147: In this case of altercation leading to assault by 21 accused (including appellants herein) using deadly weapons resulting in death of one and injuries to others, fatal injury on deceased were caused by hard and blunt weapon on left parietal bone but, held, there was no injury corresponding to weapons used by four accused. As found by courts below, there was contradiction between oral testimony of witnesses and medical evidence in this regard. Therefore, conviction of appellants under Ss. 302/149 was not justified. However, there was abundant evidence on record to show that appellants attacked deceased and injured witnesses with deadly weapons. Therefore, appellants were held liable to be convicted under Ss. 326/149 instead of Ss. 302/149. Moreover, conviction of appellants under Ss. 325/149, 324/149 and 323/149 was confirmed. [Viram v. State of M.P., (2022) 1 SCC 341]

Railway Protection Force Rules, 1987 — Rr. 161, 132, 148 and 153 — Recording of reasons for dispensing with enquiry — Necessity: Dispensation with enquiry under R. 161 on ground that it was not reasonably practical to hold enquiry, without indicating any reasons, is not permissible. [Union of India v. Ram Bahadur Yadav, (2022) 1 SCC 389]

Service Law — Pension — Qualifying period/service — Break in service: Condonation of interregnum of non pensionable service rendered between Central Government and State Government service, for purpose of computing qualifying pensionable service, when permissible, explained. [Valsan P. v. State of Kerala, (2022) 1 SCC 362]

Service Law — Police — Recruitment Process — Recruitment to posts of Police Constables in Provisional Armed Constabulary (Male) — Notice to appear for physical fitness test and verification of documents — Intimation: Intimation in terms of the 2008 Rules required to be provided by postal communication or any other mode. Hence intimation through SMS, particularly when large number of candidates had to appear for physical test and document verification, held, justified and majority of candidates had appeared pursuant to intimation by SMS. When requirement is stated in application to provide mobile number, it is for purpose of communication and appellants had sent SMS to the very number furnished by candidates. Further, contention that it is possible that person may not retain same number for long time, rejected in absence of any material brought on record to support such contention. Besides, such argument may hold good for postal communication also, and in such circumstances it is for candidate to intimate such change to authorities which is in their knowledge. [State of U.P. v. Pankaj Kumar, (2022) 1 SCC 335]

Service Law — Promotion — Criteria/Eligibility — Length of service/qualifying service — Promotion to post of Chief Engineer (Civil) Level II: Grant of relaxation in minimum length of service which was at discretion of competent authority under the applicable Rules can only be granted by such competent authority by exercising its discretion in this regard in accordance with law. Grant of relaxation, thus held, is at discretion of competent authority and cannot be claimed as matter of right.  Mandamus therefore, held, cannot be issued by Court directing competent authority to grant relaxation in qualifying service. [State of U.P. v. Vikash Kumar Singh, (2022) 1 SCC 347]

Service Law — Promotion — Incentive Scheme/Financial Upgradation — Promotion and Financial Upgradation — Difference between and determination of: Ordinarily upgradation of post involves transfer of post from lower to higher grade and placement of incumbent of that post in higher grade which does not require any selection process to be followed but merely confers financial benefit by raising scale of pay of that post. In promotion, on other hand, there is advancement to higher position or rank along with advancement to higher grade. “Promotion” means advancement or preferment in honour, dignity, rank and grade. [Punjab State Power Corpn. Ltd. v. Bal Krishan Sharma, (2022) 1 SCC 322]

Cases ReportedSupreme Court Cases

In this part, read a very pertinent decision of the Supreme Court, NV Investment Holdings LLC v. Future Retail Ltd., 2021 SCC OnLine SC 557 wherein while holding that an award passed by Emergency Arbitrator is enforceable under the Arbitration and Conciliation Act, 1996, a Division Bench of R.F. Nariman and B.R. Gavai, JJ. has ruled in favour of Amazon in the infamous Future-Amazon dispute. It has been held that the interim award in favour of Amazon, passed by the Emergency Arbitrator appointed under the Arbitration Rules of the Singapore International Arbitration Centre is enforceable under the Indian Arbitration Act.

Arbitration and Conciliation Act, 1996 — S. 17 r/w Ss. 2(a), (b), (c), (d), 2(6), 2(8), 6, 9, 19 and 21 — Emergency arbitration proceedings with juridical seat in India, under governing institutional rules — Validity of: Award/order by Emergency Arbitrator granting interim reliefs is permissible, when institutional rules under which arbitration takes place permit it. Definition of “Arbitral Tribunal” contained in S. 2(1)(d) is not constrictive so as to apply only to an Arbitral Tribunal that can give final reliefs by way of interim or final award. There is nothing in the A&C Act, 1996 that prohibits contracting parties from agreeing to a provision providing for an award being made by an Emergency Arbitrator. Further, sections of the A&C Act, 1996 which speak of party autonomy in choosing to be governed by institutional rules make it clear that the said rules would apply to govern the rights between the parties. Also, an Emergency Arbitrator’s “award” i.e. order, would undoubtedly be an order which furthers the objectives to decongest the court system and to give the parties urgent interim relief in cases which deserve such relief. [Amazon.Com NV Investment Holdings LLC v. Future Retail Ltd., (2022) 1 SCC 209]

Criminal Procedure Code, 1973 — S. 439 — Bail — Grant of, to attend wedding of child — Permitted with strict conditions: Directions issued by Supreme Court to take appellant out of jail he is presently lodged in and transfer him to prison of State where marriage ceremony and post-marriage ceremonies of his daughter has to take place and whereafter he has to be again transferred and lodged back in present jail. Further directed, that on all such days of appellant attending ceremonies, he shall be accompanied by police personnel in plain clothes, however, he will not be handcuffed during said period. [Sami Ullah v. Zulfikar Nasir, (2022) 1 SCC 195]

Government Contracts and Tenders — General Principles Governing Government Contracts/Tenders — Applicability of Arts. 14 and 298 of the Constitution — Generally — Public Law when applicable — Scope of Judicial Review/Interference: The element of transparency is always required in such tenders because of the nature of economic activity carried on by the State. However, the contours under which such tenders/contracts are to be examined, are restricted. The objective is not to make the Court an appellate authority for scrutinising as to whom the tender should be awarded.  Economics must be permitted to play its role for which the tendering authority knows best as to what is suited in terms of technology and price for them. [Uflex Ltd. v. State of T.N., (2022) 1 SCC 165]

Human and Civil Rights — Rights of Differently-Abled/Disabled Persons and Mental Health — Dignified and Easy accessibility in public places and transportation — Rights of differently-abled persons during air travel: Objections/suggestions pertaining to Draft of revised guidelines dt. 2-7-2021 regarding “Carriage by Air of Persons with Disability and/or Persons with Reduced Mobility” put in public domain in the year 2021, directed to be submitted within stipulated time. Further, suggestions that (i) No differently-abled person should be manually lifted without his consent since it is inhumane; and (ii) Differently-abled persons with prosthetic limbs/callipers should be checked for the purpose of security in a manner where no such person is asked to remove prosthetic limbs/callipers to maintain human dignity while ensuring the requirement of security checks, should be considered. DGCA directed to consider suggestions/objections submitted by petitioners. [Jeeja Ghosh v. Union of India, (2022) 1 SCC 202]

Insolvency and Bankruptcy Code, 2016 — S. 33(2) r/w Explanation, as enforced w.e.f. 16-8-2019: Committee of Creditors (CoC) has power to pass a resolution for liquidation of corporate debtor till such time as the plan has not been approved by adjudicating authority. Decision in regard to liquidation of corporate debtor was not-interfered with and plea of violation of natural justice also rejected, when the suspended management was found to be represented in the CoC meetings. NCLAT whilst finding that the suspended management was represented in the CoC meeting and rejecting the appeal, inter alia, in view of S. 33(2), held that even after approval of the resolution plan by the CoC and laying it before adjudicating authority, the CoC can change its mind and pass a resolution liquidating corporate debtor. However, such course cannot be adopted after its confirmation i.e. after approval of resolution plan by adjudicating authority. Hence, order of NCLAT, held, did not warrant interference. [Gulabchand Jain v. Ramchandra D. Choudhary, (2022) 1 SCC 164]

Insolvency and Bankruptcy Code, 2016 — Ss. 30 and 31 — Challenge to the resolution plan approved by Committee of Creditors at the stage when the plan is pending approval of adjudicating authority — Tenability: In this case, whilst dismissing the appeal, it was held that no interference was called for at the instance of the appellant, particularly at the juncture when the resolution plan approved by the Committee of Creditors was pending for approval of the adjudicating authority. [Panch Tatva Promoters (P) Ltd. v. GPT Steel Industries Ltd., (2022) 1 SCC 197]

Land Acquisition Act, 1894 — S. 23 — Increase in market value — Escalation in market rates — Old exemplar — Manner in which may be relied on — Principles explained: Escalation in market value should be reckoned at a cumulative rate and not at a flat rate. Moreover, when market value is sought to be ascertained with reference to transactions which took place before the acquisition, the law adopted is to grant the year-to-year increase. However, held, when the time-gap between the exemplar transaction and the acquisition is of many years (9 years in present case), courts have to be extremely cautious in the extent of yearly escalation that is to be granted based on such exemplar transaction. Furthermore, even if the transaction is 2 to 3 yrs prior to the acquisition, the court should, before adopting a standard escalation satisfy itself that there were no adverse circumstances affecting the market value in the period in question. [Ramesh Kumar v. Bhatinda Integrated Coop. Cotton Spg. Mill, (2022) 1 SCC 284]

Land Acquisition Act, 1894 — S. 30 — Apportionment of compensation: In this case, there was dispute relating to date of death of predecessor-in-interest of appellant and R-3. Jurisdictional District Judge directed to hold inquiry on the issue and, on facts, findings of the same accepted. Appellant was held entitled for 50% of compensation as claimed by her. [Manjari Tanty v. Ultra Mega Power Project, (2022) 1 SCC 204]

Motor Vehicles Act, 1988 — S. 163-A(3) and Sch. II — Fatal accident: Fixation of notional income of Rs 15,000 p.a. under Sch. II for computing compensation in this case of fatal accident of non-earning family member (minor aged 7 yrs), held, unjust and unreasonable due to of higher cost of living since 1994 when Rs 15,000 was fixed as the notional income under Sch. II for non-earning members. Judicial enhancement of said notional income upon failure of Government to notify reasonable amount in line with inflation and higher cost of living, despite Supreme Court directions for such notification. [Kurvan Ansari v. Shyam Kishore Murmu, (2022) 1 SCC 317]

Motor Vehicles Act, 1988 — S. 166 — Fatal accident — Compensation — Income of deceased — Reckoning of — Failure to produce documentary evidence regarding monthly income of deceased — Effect of: In absence of documentary evidence on record, some amount of guesswork is required to be done. But at the same time, held, the guesswork for assessing the income of the deceased should not be totally detached from reality. Merely because claimants were unable to produce documentary evidence to show the monthly income of deceased, same does not justify adoption of lowest tier of minimum wage while computing the income. [Chandra v. Mukesh Kumar Yadav, (2022) 1 SCC 198]

Penal Code, 1860 — Ss. 304-A and 279 — Rash and negligent driving resulting in death of one person — Lenient view and reduction of sentence — When warranted: In this case, there was no allegation against appellant-accused that at the time of accident, he was under influence of liquor or any other substance impairing his driving skills. It was a rash and negligent act simpliciter and not a case of driving in inebriated condition which is undoubtedly despicable aggravated offence warranting stricter and harsher punishment. Hence, conviction of appellant under Ss. 279 and 304-A IPC maintained and imposition of fine also affirmed. However, substantive sentence of imprisonment reduced to period already undergone of more than 7 months of substantive sentence. Also, compensation of Rs 3 lakhs deposited by appellant, besides fine, in Registry of Supreme Court, directed to be transferred to Motor Accidents Claims Tribunal, which shall be released by Tribunal to widow of deceased victim. [Sagar Lolienkar v. State of Goa, (2022) 1 SCC 161]

Service Law — Appointment — Judicial review/Validity of appointment: Grounds for judicial review: illegality, irrationality and procedural impropriety, held, not attracted in this case. Courts in exercise of power under judicial review, held, cannot interfere with selections made by expert bodies, as in this case, by reassessing comparative merits of candidates, unless vitiated by bias, mala fides or contrary to statutory provisions. None of these vitiating factors were found present in this case. Hence, validity of appointment of R-4 as DGP (HoPF), thus affirmed. [Mohd. Mustafa v. Union of India, (2022) 1 SCC 294]

Service Law — Reservation/Concession/Exemption/Relaxation and Affirmative Action — Caste/Tribe Certificate: In this case, invalidation by Scrutiny Committee of caste certificate issued to appellant. Reliance was placed by appellant on caste validity certificate issued to his father and cousins. However, validity certificate issued to appellant’s father and his cousins reopened and issue at large before Scrutiny Committee. Appellant’s case also directed to be placed before Scrutiny Committee to be considered with their cases to avoid conflicting orders. [Rushikesh Bharat Garud v. State of Maharashtra, (2022) 1 SCC 207]

Cases ReportedSupreme Court Cases

In 2022 SCC Volume 1 Part 1, read a very significant decision of Supreme Court wherein it made a very pertinent observation with regard to arbitral awards,

“There is a disturbing tendency of courts setting aside arbitral awards, after dissecting and reassessing factual aspects of the cases to come to a conclusion that the award needs intervention …”[Delhi Airport Metro Express (P) Ltd. v. DMRC, 2021 SCC OnLine SC 695]

Advocates — Government Law Officers/Counsel/Pleader/Public Prosecutor/Advocate General — Post of Assistant Public Prosecutor: In this case, it was held that direction to appoint Assistant Public Prosecutor dehors statutory rules is not permissible. [State of U.P. v. Shyam Lal Jaiswal, (2022) 1 SCC 59]

Arbitration and Conciliation Act, 1996 — Ss. 16, 5 and 34 — Jurisdiction of arbitrator — Ruling of arbitrator under S. 16 of the A&C Act, upon challenge to jurisdiction of arbitrator: Interference under Arts. 226/227 of the Constitution by High Court with arbitral process is not permissible except in exceptionally rare circumstances. Discretion under Arts. 226/227 of the Constitution cannot be exercised to allow judicial interference beyond procedure established under the A&C Act, 1996. This power needs to be exercised in exceptional rarity, wherein one party is left remediless under the statute or a clear “bad faith” shown by one of parties. [Bhaven Construction v. Sardar Sarovar Narmada Nigam Ltd., (2022) 1 SCC 75]

Arbitration and Conciliation Act, 1996 — Ss. 34 & 37 and S. 5 — Grounds for challenging arbitral award before Court — Restrictions on: While deciding applications filed under S. 34, Courts are mandated to strictly act in accordance with and within the confines of S. 34, refraining from appreciation or reappreciation of matters of fact as well as law. One of the principal objectives of the A&C Act, 1996 is to minimise the supervisory role of Courts in the arbitral process. Judicial interference with the arbitral awards is strictly limited to the grounds in S. 34. There is a disturbing tendency of Courts of setting aside arbitral awards, after dissecting and reassessing factual aspects of the cases to come to a conclusion that the award needs intervention and thereafter, dubbing the award to be vitiated by either perversity or patent illegality, apart from the other grounds available for annulment of the award. Further, this approach would lead to corrosion of the object of the A&C Act, 1996 and the endeavours made to preserve this object: which is minimal judicial interference with arbitral awards. [Delhi Airport Metro Express (P) Ltd. v. DMRC, (2022) 1 SCC 131]

Constitution of India — Art. 21 — Right to privacy of person whose DNA test is sought: The discretion of court in directing DNA test must be exercised after balancing the interests of the parties and whether a DNA test is needed for a just decision in the matter and such direction satisfies the test of “eminent need”. Whether a person can be compelled to provide a sample for DNA can also be answered considering the test of proportionality, as the right to privacy has been declared a fundamental right in India. Court should therefore examine the proportionality of the legitimate aims being pursued i.e. whether the same are not arbitrary or discriminatory, whether they may have an adverse impact on the person and that they justify the encroachment upon the privacy and personal autonomy of the person, being subjected to the DNA test. [Ashok Kumar v. Raj Gupta, (2022) 1 SCC 20]

Contempt of Court — Nature and Scope — Broadly — Vicarious/Constructive liability for contempt: Knowledge acquires substantial importance qua a contempt order. Merely because a subordinate official acted in disregard of an order passed by court, a liability cannot be fastened on a higher official in absence of knowledge. When two views are possible, element of wilfulness vanishes as it involves a mental element. Wilful disobedience of court order is a deliberate, conscious and intentional act. What is required is a proof beyond reasonable doubt since proceedings are quasi-criminal in nature. [U.N. Bora v. Assam Roller Flour Mills Assn., (2022) 1 SCC 101]

Evidence Act, 1872 — S. 27: Principles summarised regarding when conviction exclusively based upon disclosure statement of accused and resultant recovery of inculpatory material is permissible and factors which aid in gauging intrinsic evidentiary value and credibility of recovery. [Bijender v. State of Haryana, (2022) 1 SCC 92]

Family and Personal Laws — Family Property, Succession and Inheritance — Will — Requirements of Valid Will/Validity/Invalidity of Will/Grant/Non-grant of Probate/Letters of Administration — Suspicious circumstances: Exclusion of other siblings would not by itself create suspicion unless it is surrounded by other circumstances creating an inference. In a case where a testatrix is accompanied by sister of beneficiary of will and said document is attested by their brother, there is no room for any suspicion when both of them have not raised any issue, as to validity of the will. [V. Prabhakara v. Basavaraj K., (2022) 1 SCC 115]

Human and Civil Rights — Rights of Displaced Persons/Migrants and Refugees/Displacement Due to Land Acquisitions/Dams/Irrigation Projects — Resettlement and Rehabilitation and Compensation: Directions issued in J.L. Koul, (2010) 1 SCC 371, regarding Government accommodation post retirement to J&K Migrant retirees from government services held, were issued in exercise of power under Art. 142 of the Constitution. J.L. Koul v. State of J&K, (2010) 1 SCC 371 : (2010) 1 SCC (L&S) 1101, did not decide any question of law or fact but merely expressed compassionate view to alleviate difficulties faced by Kashmiri migrants. However, compassion cannot be extended in perpetuity and hence, parity sought with appellants was held untenable in this case. [Union of India v. Omkar Nath Dhar, (2022) 1 SCC 40]

Income Tax Act, 1961 — S. 263(2) — Limitation — Date for reckoning period of limitation prescribed under S. 263(2): The word used S. 263 is “made” and not “received”. Hence, if the order under S. 263 was made/passed within the period of two years from the end of financial year in which order sought to be revised was passed, such an order would not be beyond the period of limitation prescribed under S. 263(2). Date on which order under S. 263 has been received by the assessee is not relevant for the purpose of reckoning period of limitation prescribed under S. 263(2). [CIT v. Mohd. Meeran Shahul Hameed, (2022) 1 SCC 12]

Insurance — Repudiation/Rescission of Insurance Policy: Rejection of claim as policy stood lapsed on account of non-payment of premium, on date on which insured event took place, held, proper and justified. Further held, attempted revival of policy on a subsequent date, without disclosure of material facts to insurer (of accident having occurred in between, on a date when policy was not in force), not only lacked bona fides, but amounted to mala fides. Hence, claim of the complainant was liable to be rejected on the said ground alone. [LIC v. Sunita, (2022) 1 SCC 68]

Micro, Small and Medium Enterprises Development Act, 2006 — S. 19 — Challenge to award under S. 34 of the A&C Act, 1996: Requirement of pre-deposit of 75% of awarded amount, held, mandatory. Court has no discretion to deviate from condition of 75% of the awarded amount as a pre-deposit. At the most, however held, considering the hardship which may be projected before the court, and if the court is satisfied that there shall be undue hardship caused to the appellant-applicant to deposit 75% of the awarded amount as a pre-deposit in one go, the court may allow the pre-deposit to be made in instalments. [Gujarat State Disaster Management Authority v. Aska Equipments Ltd., (2022) 1 SCC 61]

Prevention of Food Adulteration Act, 1954 — Ss. 13(2), 7(i), (v) and 16(1)(a)(i) & (ii) — Adulteration of food article — Mandatory requirement under S. 13(2) — Non-compliance with ingredients of: Mandatory requirement under S. 13(2), held, is of serving copy of report on accused. In this case, evidence established mere dispatch of report, held, does not amount to compliance with S. 13(2). Copy of Public Analyst’s report not supplied to appellant-accused in this case, resulted in his valuable right to get samples analysed by Central Food Laboratory being defeated, thereby, vitiating prosecution. Hence, conviction of appellant was reversed. [Narayana Prasad Sahu v. State of M.P., (2022) 1 SCC 87]

Service Law — Appointment — Compassionate appointment: Compassionate appointment at higher post than held by deceased is not permissible. [State of U.P. v. Premlata, (2022) 1 SCC 30]

Service Law — Appointment — Eligibility conditions/criteria: In this case, for the post of “Junior Lab Technician”, Selection Committee decided to allocate 85% marks for qualifying examination and out of remaining 15%, 10% marks were to be allotted for work experience and/or additional training in teaching hospitals of medical colleges, with special reference to those who had worked in teaching hospitals of government/autonomous medical colleges, and remaining 5% to personality of candidate based on viva voce. Rationale for differentiating work experience in private and government institutions was that those working in government institutions would be more suitable since first respondent was government medical institution. It was held that in absence of any allegations of mala fides or glaring error or perversity, Court cannot sit in appeal over decision of Selection Committee. Impugned judgment setting aside decision of Selection Committee appointing appellant on ground that: (i) marks allocated at interview and for experience category were arbitrary; and (ii) advertisement only provided for minimum educational qualification and hence, allocation of marks for experience amounted to changing rules of game mid-way, held, unsustainable. In determining legality of selection list in absence of any challenge thereto, High Court transgressed its limits. [Srinivas K. Gouda v. Karnataka Institute of Medical Sciences, (2022) 1 SCC 49]

Service Law — Penalty/Punishment — Recovery: In this case, for recovery of Rs 2,46,922.56 for loss caused, which was found to be proved by enquiry officer, punishment was maintained, directing that said amount may be deducted from retirement benefits payable to respondent employee. [U.P. Forest Corpn. v. Vijay Kumar Yadav, (2022) 1 SCC 113]

Service Law — Police — Appointment — Antecedents/Character: Law summarised on relevance of nature of acquittal i.e. whether honourable or technical, in offences of heinous/serious nature, for entitlement to appointment. [Union of India v. Methu Meda, (2022) 1 SCC 1]

Service Law — Termination of Service — Judicial review/Interference by court/Validity — Inordinate delay in challenging termination order before court — Effect: In this case, late husband of respondent was dismissed from service on 16-12-1996. During pendency of appeal challenging dismissal order, husband of respondent passing away in the year 2009. In case respondent’s husband had not been dismissed, he would have superannuated in the year 1999. Respondent widow challenging dismissal order by filing writ petition in the year 2012 i.e. 15 yrs from date of termination and approximately 13 yrs from date on which employee would have superannuated. The Supreme Court held that writ petition was liable to be dismissed on grounds of delay/laches alone. Impugned judgment affirming order of Single Judge setting aside dismissal order dt. 16-12-1996 was held unsustainable. [State of Rajasthan v. Surji Devi, (2022) 1 SCC 17]

Cases ReportedSupreme Court Cases

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

Short Notes: 19

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

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

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

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

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

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

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

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

Cases ReportedSupreme Court Cases

In this part, read three really interesting Articles along with some very carefully analysed decisions of the Supreme Court by our editors.

Adjudication in Multi-Contract and Multi-Party Disputes: The author in this article explains the scope of two neighbouring concepts in arbitration law: (a) composite reference and composite adjudication; (b) consolidation of references for analogous (or consolidated) adjudication, in adjudication of disputes involving multiple contracts and multiple parties. Composite Adjudication And Analogous (Or Consolidated) Adjudication By Arbitral Tribunals In Multi-Contract And Multi-Party Disputes — A Comparative Analysis by Avni Sharma, (2021) 10 SCC (J-14)]

Consumer Protection — Services — Medical practitioners/services — Medical negligence: Res ipsa loquitur may be considered applicable where negligence alleged is glaring, in the facts and circumstances of a case, if the evidence on record establishes the same. It was emphasised that findings of medical negligence of doctors and/or the hospital, must be based on proper medical evidence on crucial medical aspects. Court or Consumer Forums cannot take decision on basis of mere legal principles and general standard of assessment sans expert medical evidence on highly technical medical issues. Such decision would amount to a situational perception by the court or the Consumer Forums. [Harish Kumar Khurana v. Joginder Singh, (2021) 10 SCC 291]

Criminal Procedure Code, 1973 — Ss. 457 and 451 — Seizure of property pending trial — Release of mutual funds — Directions for, subject to furnishing of guarantee: Interim directions for release of mutual funds, subject to furnishing of guarantee, modified while adopting pragmatic approach in respect of matters of high value commercial assets. [SEBI v. IL&FS Securities Services Ltd., (2021) 10 SCC 389]

Election — Democracy and General Principles — Criminalisation of politics/Electoral Reform: Right to information of voter re criminal antecedents of candidates must be made more effective and meaningful. Direction issued to political parties to publish information regarding criminal antecedents of candidates on homepage of their websites with caption “Candidates with Criminal Antecedents”. Detailed directions also issued to Election Commission of India (ECI) so as to make such information freely available and to spread awareness re criminal antecedents of all contesting candidates. [Brajesh Singh v. Sunil Arora, (2021) 10 SCC 241]

Election — Elections to Particular Bodies/Offices — Local Government/Bodies/Municipalities/Panchayats/Autonomous and Other Bodies — Reservation — Office of Mayor of Corporation: There is reservation for SCs/STs/Backward Class citizens/Women in proportion to population of such category. The manner in which provision for rotation of the different reserved categories in Office of Mayor across the State, by draw of lots as mandated by scheme of Act and Rules concerned read with Art. 243-T of the Constitution, to be worked out, explained. [Sanjay Ramdas Patil v. Sanjay, (2021) 10 SCC 306]

Insolvency and Bankruptcy Code, 2016 — S. 61: Applicability of principles underlying S. 14 of the Limitation Act, to proceedings before a quasi-judicial tribunal, despite the provision itself not being applicable thereto, determined. The proper approach is to advance the cause of justice, rather than to abort the proceedings. Time spent prosecuting bona fide before wrong forum must be excluded for computing limitation period. [Kalpraj Dharamshi v. Kotak Investment Advisors Ltd., (2021) 10 SCC 401]

Insolvency and Bankruptcy Code, 2016 — Ss. 238-A, 7 and 3(12) — Limitation period for initiation of corporate insolvency resolution process (CIRP): Final judgment and/or decree of any court or tribunal or any arbitral award for payment of money, if not satisfied, would fall within the ambit of a financial debt. A judgment and/or decree for money in favour of the financial creditor, passed by the DRT, or any other tribunal or court, or the issuance of a certificate of recovery in favour of the financial creditor, would give rise to a fresh cause of action for the financial creditor, to initiate proceedings under S. 7 within three years from the date of the judgment and/or decree or the date of issuance of the certificate of recovery, if the dues under the judgment and/or decree and/or in terms of the certificate of recovery, or any part thereof remained unpaid. [Dena Bank v. C. Shivakumar Reddy, (2021) 10 SCC 330]

Kerala Abkari Shops Departmental Management Rules, 1972 — R. 13 r/w R. 10 of Kerala Abkari Shops (Disposal in Auction) Rules, 1974: R. 13 as amended, held, is prospective. Amount collected as departmental management fee has to be given as credit towards dues from licensee. Contracts entered into before amendment of R. 13 of 1972 Rules, which is prospective in nature. Therefore licensee, held, was liable to pay only actual loss suffered by Government, in realisation of rentals and excise duty. Hence, amounts calculated as departmental management fees had to be adjusted thereagainst. [Excise Commr. v. Esthappan Cherian,(2021) 10 SCC 210]

Land Acquisition Act, 1894 — S. 23 — Market value — Determination of — Matters which may be considered: For determination of market value, exemplar sales which had taken place subsequent to acquisition notification is irrelevant. Where different lands belonging to different survey number were acquired for same purpose and they have identical features, categorisation of lands by Reference Court is not warranted. [Manmohan Lal Gupta v. Market Committee, Bhikhi, (2021) 10 SCC 395]

Tenancy and Land Laws — Occupancy Rights/Tenant/Tenancy/Patta/Particular tenures — Bhumiswami — Kashtkar — Muafidar (tenant in cultivation) — Pujari — Status and function: Pujari cannot be treated as Bhumiswami, Muafidar, Inamdar or Kashtakar Mourushi. [State of M.P. v. Pujari Utthan Avam Kalyan Samiti, (2021) 10 SCC 222]

The Effects of Aruna Oswal v. Pankaj Oswal, (2020) 8 SCC 79: This article attempts to harmonise the potentially problematic observations made in a recent judgment passed by the Supreme Court in Aruna Oswal v. Pankaj Oswal, (2020) 8 SCC 79, with a long-settled position of law regarding the status of a nominee and the legal effects of nomination To Nominate or Not: The Effects of Aruna Oswal v. Pankaj Oswal, (2020) 8 SCC 79 by Shyam Kapadia & Spenta Havewala, (2021) 10 SCC (J-29)]

Transparency in Functioning of Statutory Bodies: In this article, author has discussed the meaning, role, significance of transparency in the functioning of the statutory authorities along with its scope, extent and limits. It has also been emphasised that action must be taken by the legislature and executive in clearly spelling out the scope, extent and limits of transparency to be exercised by the various authorities. Transparency in Functioning of Statutory Bodies — Need for Legislative Intervention by Saket Singh, (2021) 10 SCC (J-1)]

Cases ReportedSupreme Court Cases

In Part 1 Volume 10 of 2021, read Supreme Court’s decision in Supertech Ltd. v. Emerald Court Owner Resident Welfare Assn., (2021) 10 SCC 1, wherein the Court made an observation that “illegal constructions have to be dealt with strictly to ensure compliance with the rule of law.”

Short Notes: 14

Read more such Judgments carefully and expertly analysed by our editors.

Energy, Power and Electricity — Electricity — Generation and Transmission/Supply/Distribution of electricity — Multipurpose/Hydroelectricity Projects: Private entity or agency would stand to gain from and out of capital outlay and infrastructure put in place by State. Hence, some reasonable charges for such benefit cannot be said to be invalid. Nor was the clause to this effect in agreements entered into between the private entities and Government unconscionable as the private entities concerned were not in a position of lesser bargaining power and the agreements were entered into after long deliberations involving legal counsel. [Indsil Hydro Power & Manganese Ltd. v. State of Kerala, (2021) 10 SCC 165]

Income Tax Act, 1961 — S. 14-A — Disallowance on expenditure incurred for earning tax-free income in cases where assessees do not maintain separate accounts for the investments and other expenditures incurred for earning the tax-free income: The proportionate disallowance of interest is not warranted under S. 14-A for investments made in taxfree bonds/securities which yield tax-free dividend and interest to assessee Banks in those situations where, interest-free own funds available with the assessee, exceeded their investments. [South Indian Bank Ltd. v. CIT, (2021) 10 SCC 153]

Local Government, Municipalities and Panchayats — Town Planning — Building plans/Rules/Regulations/Bye-Laws/Building permission — Construction in violation of building regulations: A breach by development/planning authority of its obligation to ensure compliance with building regulations is actionable at instance of residents whose rights are infringed by violation of law. Their quality of life is directly affected by failure of planning authority to enforce compliance. Hence, law must step in to protect their legitimate concerns. Thus, when planning and building regulations are violated by developers, more often than not with the connivance of regulatory authorities, it strikes at the very core of urban planning, thereby directly resulting in an increased harm to the environment and a dilution of safety standards. Hence, illegal constructions have to be dealt with strictly to ensure compliance with the rule of law. [Supertech Ltd. v. Emerald Court Owner Resident Welfare Assn., (2021) 10 SCC 1]

Narcotic Drugs and Psychotropic Substances Act, 1985 — Ss. 37, 8, 19 to 22, 24, 27-A, 29, 60(3), 67, 42 and 50 — Grant of bail for offences under NDPS Act — Tests which High Court and Supreme Court are required to apply while granting bail: A finding of the absence of possession of the contraband on the person of the accused does not absolve it of the level of scrutiny required under S. 37(1)(b)(ii). Furthermore, held, mere absence of possession of the contraband on the person of the accused does not ipso facto mean that the accused was not in “conscious possession” of the contraband. Rather, the knowledge of possession of contraband has to be gleaned from the facts and circumstances of a case. The standard of conscious possession would be different in case of a public transport vehicle with several persons as opposed to a private vehicle with a few persons known to one another, the latter being the situation in the present case. The term “possession” could mean physical possession with animus; custody over the prohibited substances with animus; exercise of dominion and control as a result of concealment; or personal knowledge as to the existence of the contraband and the intention based on such knowledge. [Union of India v. Mohd. Nawaz Khan, (2021) 10 SCC 100]

Service Law — Appointment — Nature of appointment — Determination of — Substantive appointment or contractual appointment — Substantive appointment — What is: Appointments made in accordance with procedure prescribed under applicable Act and Rules, held, are ordinarily substantive in nature and cannot be converted to contractual appointments by arbitrarily inserting term(s) in appointment letter which are not in conformity with statutory requirements and prescribed procedure, and when there is no mention that appointments would be contractual in nature, anywhere at all prior thereto in the entire selection process, right from issuance of advertisements up until the last stage when statutorily constituted Selection Committee had approved the recommendations for appointment. Furthermore, fact that candidates concerned had accepted terms and conditions contained in appointment letter is inconsequential, since it is not open for person appointed in public employment to ordinarily choose terms and conditions of his service as employer is in dominating position and can always dictate terms. Judicial notice taken of fact that incumbent may lose job opportunity if he questions terms and conditions of his employment. Hence, held, it is open to employee to challenge such terms which are not in conformity with statutory requirements and prescribed procedure and he is not estopped from questioning at stage where he finds himself aggrieved. [Somesh Thapliyal v. HNB Garhwal University, (2021) 10 SCC 116]

Cases ReportedSupreme Court Cases

In Part 3 of Volume 9, read this very interesting decision, where the Election Commission of India (EC) had sought a direction restraining the media from reporting on court proceedings after Madras High Court made certain oral remarks attributing responsibility to the EC for the present surge in the number of cases of COVID-19, due to their failure to implement appropriate COVID-19 safety measures and protocol during the elections, the bench of Dr. DY Chandrachud and MR Shah, JJ has refused to restrain the media from reporting on Court proceedings and made a strong case in favour of Open Court and freedom of press.[Election Commission of India v. M.R. Vijayabhaskar, (2021) 9 SCC 770]

Short Notes: 6

Arbitration and Conciliation Act, 1996 — Ss. 11(6) and 11(6-A) r/w S. 8 — Appointment of arbitrator — Arbitrability of disputes: Limitations upon Court’s intervention at the stage of appointment i.e. the issue whether the claims are arbitrable or not, held, ordinarily falls within the domain of the arbitration. [Zostel Hospitality (P) Ltd. v. Oravel Stays (P) Ltd.,(2021) 9 SCC 765]

Arbitration and Conciliation Act, 1996 — Ss. 11, 8 and 11(6-A) — Interference by Court at referral stage: Interference by Court at referral stage is restricted to cases where it is manifest that the claims are ex facie time-barred and dead, or there is no subsisting dispute. Prima facie review by Court at referral stage is not warranted, when the same would be inconclusive or inadequate, requiring detailed examination. Court exercising power under S. 11 would refer the matter to arbitration when contentions relating to non-arbitrability are plainly arguable, or when facts are contested. Further, the Court cannot, at the referral stage, enter into a mini trial or elaborate review of the facts and law which would usurp the jurisdiction of the arbitrator. Disputed question of novation of agreement containing arbitration clause is thus non-determinable by Court at the stage of reference when it would result in a mini trial or elaborate review of facts and law. [Sanjiv Prakash v. Seema Kukreja, (2021) 9 SCC 732]

Civil Procedure Code, 1908 — S. 25 — Transfer of cases — Matrimonial dispute: In this case, as the matter was at advanced stage of trial, prayer for transfer was rejected. However, respondent husband was directed to pay Rs 4000 as expenses towards appearance of petitioner wife on each date of hearing. [Abhilasha Gupta v. Harimohan Gupta, (2021) 9 SCC 730]

Constitution of India — Art. 19(1)(a) — Open court: Citizens have right to information relating to court proceedings, except in-camera proceedings. This includes the right to know the observations/remarks made by Judges during course of hearing, not forming part of judgment or binding decision, which the media is free to report. Exchange of legal arguments before court must be accessible to public scrutiny which is crucial for transparency, accountability, public faith and confidence in the process and vital for functioning of democracy. Open court also serves educational purpose by enabling citizens to know how practical application of the law impacts upon their rights. [Election Commission of India v. M.R. Vijayabhaskar, (2021) 9 SCC 770]

Insolvency and Bankruptcy Code, 2016 — S. 31 r/w Ss. 3(10), 5(20) and 5(21) — S. 31 before and after its amendment by S. 7 of Act 26 of 2019: Approved resolution plan is binding on Central Government, State Government and local authorities, including tax authorities. Amendment of S. 31 is clarificatory in nature, thus retrospective. The legislative intent of making the resolution plan binding on all the stakeholders after it gets the seal of approval from the adjudicating authority, is that after the approval of the resolution plan, no surprise claims should be flung on the successful resolution applicant. That is to say, the dominant purpose is that the successful resolution applicant should start with fresh slate on the basis of the resolution plan approved. Further, the words “other stakeholders” squarely cover the Central Government, any State Government or any local authorities, including tax authorities. Furthermore, dues of Central Government, any State Government or any local authority, including tax authorities, held, amount to “operational debt”. [Ghanashyam Mishra & Sons (P) Ltd. v. Edelweiss Asset Reconstruction Co. Ltd., (2021) 9 SCC 657]

Rent Control and Eviction — Deemed Vacancy — Subsequent events — Non-residential premises (shop) — Partnership business: Dissolution of partnership firm upon death of the partners, held, led to deemed vacancy of the premises by the tenant in this case. [Davesh Nagalya v. Pradeep Kumar, (2021) 9 SCC 796]

SCs, STs, OBCs and Minorities — Caste/Tribe Certificate — Claim of belonging to Schedule Tribe “Halba”: In this case, as claim was negated by Caste Scrutiny Committee, hence held, no advantage can be extended to appellant which would run counter to the 2000 Act, as well as authoritative pronouncement of Supreme Court in Food Corpn. of India, (2017) 8 SCC 670 which held that the 2000 Act must be given full and unhindered effect and operation. [Chandrabhan v. State of Maharashtra, (2021) 9 SCC 804]

SCs, STs, OBCs and Minorities — Caste/Tribe Certificate — Genuineness: Verification of genuineness Caste/Tribe Certificate is intended only to avoid false and bogus claims. Repeated inquiries for verification of caste certificates would be detrimental to the members of Scheduled Castes and Scheduled Tribes. Reopening of inquiry into caste certificates can be only in cases where the allegations are that they are vitiated by fraud or that they were issued without proper inquiry. [J. Chitra v. State Level Vigilance Committee, (2021) 9 SCC 811]

W.B. Municipal Act, 1996 (6 of 1996) — Ss. 217 and 218 — Sanction of building plan or cancellation of sanction and direction for demolition — Competent authority: Chairman, Board of Councillors, held, has no jurisdiction to decide dispute on issue of misrepresentation or fraudulent statement in application seeking sanction of building plan, for passing order to cancel sanction and to demolish structure. Decision in this regard has to be taken by Municipal Council. [Debabrata Saha v. Serampore Municipality, (2021) 9 SCC 818]

Cases ReportedSupreme Court Cases

Criminal Procedure Code, 1973 — S. 156(3) and Ss. 200 to 204 and S. 438: Power of Magistrate under S. 156(3) to direct investigation is independent of power to take cognizance and issue process under Ss. 200 to 204, as direction under S. 156(3) does not amount to taking of cognizance. Hence, there is no requirement of Magistrate to examine complainant on oath (as required under S. 200) before issuing direction under S. 156(3). [Supreme Bhiwandi Wada Manor Infrastructure (P) Ltd. v. State of Maharashtra, (2021) 8 SCC 753]

Criminal Procedure Code, 1973 — S. 197 — Previous sanction for prosecution of public servant: S. 197 CrPC seeks to protect officer from unnecessary harassment, who is accused of offence committed while acting or purporting to act in discharge of his official duties and, thus, prohibits court from taking cognizance of such offence except with previous sanction of competent authority. At the same time, such shield cannot protect corrupt officers and provisions must be construed in such manner as to advance cause of honesty, justice and good governance. Alleged indulgence of officers in cheating, fabrication of records or misappropriation cannot be said to be in discharge of their official duty. Yardstick to be adopted is to form prima facie view whether act or omission for which accused was charged had a reasonable connection with discharge of his duties. Real question, therefore, is whether act committed is directly concerned with official duty. [Indra Devi v. State of Rajasthan, (2021) 8 SCC 768]

 Insecticides Act, 1968 — Ss. 3(k)(i), 17, 18, 24, 29 and 33 — Misbranding of insecticide — Complaint whether barred by limitation: Commencement of limitation period from date of first analysis report cannot be extended merely because subsequent analysis report was being sought. [Cheminova (India) Ltd. v. State of Punjab, (2021) 8 SCC 818]

Service Law — Pay — Revision of pay — Entitlement to, if any — Factors to be considered when employer does decide to revise pay — Financial constraints of employer — Relevance of: Principles clarified re three broad sets of employers viz. (i) Employers in organised sector like industry; (ii) Employers in public sector undertakings including Boards and Corporations and other establishments which meet test of “State” within meaning of Art. 12 of the Constitution; and (iii) Central and State Governments proper as employers. As far as first category is concerned there are numerous complex factors, some of which are economic like financial status of employer, national economy, etc. while some spring from social philosophy which acknowledges that worker’s wage is force of collective bargaining under Labour laws and wage structure must be tested on anvil of social justice. In respect of establishments which meet parameters of being “State” within meaning of Art. 12 of the Constitution, reiterated that non-revision of pay scale does not violate fundamental rights guaranteed under Art. 21 of the Constitution since under Labour law workman is only entitled to minimum or fair wage and not periodic revision. Besides, economic viability is an important consideration while determining wage structure, and pay revision cannot be claimed when employer is making continuous losses. As far as Central and State Government as employers is concerned, financial and economic implications are very relevant and germane to any policy decision touching administration of Government. Punjab State Coop. [Milk Producers Federation Ltd. v. Balbir Kumar Walia, (2021) 8 SCC 784]

Service Law — Police — Appointment — Antecedents/Character — Involvement in offence(s) involving moral turpitude/violent activities: Determination of entitlement to appointment in case of offences involving moral turpitude, violent activities would depend on nature of offence charged with and result of same.  Mere acquittal not sufficient but rather entitlement would depend on whether it was clean acquittal based on total absence of evidence. If acquittal is recorded in a case involving moral turpitude or offence of heinous/serious nature, on technical ground and it is not a case of clean acquittal or honourable acquittal, or benefit of reasonable doubt has been given, the employer may consider all relevant facts available as to antecedents, and may take appropriate decision as to entitlement to appointment. [State of Rajasthan v. Love Kush Meena, (2021) 8 SCC 774]

Service Law — Police — Appointment — Antecedents/Character: In this case, cancellation of appointment due to absence of honourable acquittal from crime of violence, held, justified. [State of Rajasthan v. Mohd. Saleem, (2021) 8 SCC 782]