Cases ReportedSupreme Court Cases

Andhra Pradesh Educational Institutions (Regulation of Admission and Prohibition of Capitation Fee) Act, 1983 (5 of 1983) — R. 4 — Unaided institutions — Fee revision — Statutory mandate — Mandatory compliance with: For revising fee, strict compliance with drill under R. 4 to be followed by Government, held, is mandatory. Thus, interim fee fixed by Government in this case, without following drill of R. 4, held, illegal but interim fee fixed by Single Judge of High Court by considering facts, balance of convenience and irreparable loss to petitioner institutions, affirmed. Single Judge’s order will continue to operate insofar as the period of 2019 onwards is concerned until a final fee is fixed in accordance with the requisite Act and Rules. [Rajeev Gandhi Memorial College of Engg. & Technology v. State of A.P., (2020) 7 SCC 157]

Arbitration and Conciliation Act, 1996 — Ss. 34(2-A) and 37 — Domestic arbitral award — Patent illegality — Ground of — When can be invoked: The ground of patent illegality is a ground available under the statute for setting aside a domestic award, if the decision of the arbitrator is found to be perverse, or, so irrational that no reasonable person would have arrived at the same; or, the construction of the contract is such that no fair or reasonable person would take [test therefor is the one laid down in para 42.3 of Associate Builders, (2015) 3 SCC 49, as affirmed in para 40 of Ssangyong Engg., (2019) 15 SCC 131]; or, that the view of the arbitrator is not even a possible view. [Patel Engg. Ltd. v. North Eastern Electric Power Corpn. Ltd., (2020) 7 SCC 167]

Civil Procedure Code, 1908 — S. 25: Relevant factors to consider petition for transfer of pending partition suit from Delhi High Court to Bombay High Court where application was filed by petitioners for letters of administration to estate of deceased owner, discussed. [Shamita Singha v. Rashmi Ahluwalia, (2020) 7 SCC 152]

Constitution of India — Arts. 21 and 32 — Cases under the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act): Detailed directions issued regarding speedy investigation and trial of cases under the Protection of Children from Sexual Offences Act, 2012, including for setting up of Special POCSO Courts and their functioning. [Alarming Rise in the number of Reported Child Rape Incidents, In re, (2020) 7 SCC 87]

Constitution of India — Arts. 21 and 32 — Cases under the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act) — Speedy investigation and trial — Shocking state of affairs: As almost two-thirds of the cases under POCSO pending trial for more than one year due to lack of awareness and dedication to meet deadlines and inadequacy of courts, directions issued regarding the matter. [Alarming Rise in the Number of Reported Child Rape Incidents, In re, (2020) 7 SCC 108]

Constitution of India — Arts. 21 and 32 — Cases under the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act): Further directions and clarifications issued regarding speedy investigation and trial and setting up of exclusive POCSO Courts. [Alarming Rise in the Number of Reported Child Rape Incidents, In re, (2020) 7 SCC 112]

Constitution of India — Arts. 21 and 32 — Cases under the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act): Further directions and clarifications issued regarding speedy investigation and trial and setting up of exclusive POCSO Courts. [Alarming Rise in the Number of Reported Child Rape Incidents, In re, (2020) 7 SCC 130]

Constitution of India — Arts. 21 and 32 — Cases under the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act): Further directions and clarifications issued regarding speedy investigation and trial and setting up of exclusive POCSO Courts. [Alarming Rise in the Number of Reported Child Rape Incidents, In re, (2020) 7 SCC 142]

Constitution of India — Arts. 21 and 32 — Establishment of Human Rights Courts and appointment of Special Public Prosecutors: In this case, as States of Odisha, Telangana, Meghalaya, Mizoram, Rajasthan, U.P. and Uttarakhand had not filed response even after one-and-a-half years, it was directed that said States should file affidavit within four weeks and pay costs of Rs 50,000. Costs of Rs 1 lakh imposed on State of Rajasthan as no one represented it. [Alarming Rise in the Number of Reported Child Rape Incidents, In re, (2020) 7 SCC 95]

Constitution of India — Arts. 21 and 32 — Unnao Child Rape case — Independent, impartial and speedy investigation — Court monitored investigation by CBI: In this case, direction were passed the previous day for transfer of case from Lucknow to Delhi, stayed for a limited period due to ongoing investigations and requirement of passing remand orders for arrested accused from time to time. CBI reminded that in said earlier order, CBI was directed to complete investigation within 15 days preferably within 7 days. [Alarming Rise in the number of Reported Child Rape Incidents, In re, (2020) 7 SCC 91]

Constitution of India — Arts. 21 and 32 — Unnao Child Rape case — Injured witness: In this case, directions issued regarding free treatment and shifting of witness from AIIMS to Dr Ram Manohar Lohia Hospital at Lucknow for further aftercare and treatment. The State of U.P. directed to arrange suitable ambulance for said transfer. It was clarified that injured witness should be provided proper treatment including physiotherapy free of cost. [Alarming Rise in the Number of Reported Child Rape Incidents, In re, (2020) 7 SCC 136]

Constitution of India — Arts. 21 and 32 — Unnao Child Rape case: In this case, due to critical condition of rape victim due to car accident and pneumonia, emergency directions with regard to treatment of rape victim and lawyer of rape victim by airlifting them to Delhi AIIMS, issued. [Alarming Rise in the Number of Reported Child Rape Incidents, In re, (2020) 7 SCC 93]

Constitution of India — Arts. 21 and 32 — Unnao Child Rape case: In this case, accused applied for transfer of case by alleging that observations of trial court reflected on merits of case. While disposing of the application, trial Judge directed to decide matter on merits without being influenced by its said observations. The Supreme Court held that observations of trial court that delay of 2 months and 10 days in reporting incident was reasonably explained by PWs 10, 8 and 9, did not reflect on merits of case. Trial Judge was cognizant about this and clarified that his observations did not reflect on merits of case. [Alarming Rise in the Number of Reported Child Rape Incidents, In re, (2020) 7 SCC 139]

Evidence Act, 1872 — S. 65-B(4) r/w Ss. 65-B(1) & 65-A and S. 22-A: Production of certificate under S. 65-B(4) is mandatory, but only in case of secondary evidence i.e. where primary evidence is not lead/original not produced. Oral admission e.g. by stepping into the witness box qua such document/electronic record cannot be considered as compliance with such mandatory requirement of production of the S. 65-B(4) certificate. [Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1]

Human and Civil Rights — Humanitarian and Natural Disasters, Epidemics and Pandemics — Spread of Coronavirus (COVID-19): In the light of precarious plight of Coronavirus patients and deplorable way of handling dead bodies, multiple sets of directions concerning different aspects of treatment of COVID-19 patients, issued. [Proper Treatment of COVID-19 Patients & Dignified Handling of Dead Bodies in the Hospitals, In re, (2020) 7 SCC 145]

Human and Civil Rights — Humanitarian and Natural Disasters, Epidemics and Pandemics: In this case while taking suo motu cognizance of misery of migrant labourers during COVID-19 Lockdown, directions issued for reducing their misery. [Problems & Miseries of Migrant Labourers, In re, (2020) 7 SCC 181]

Motor Vehicles Act, 1988 — Ss. 166, 163-A and Sch. II — Permanent partial disability — Functional disability and loss of future earning — Estimation of extent of: In this case, victim appellant 45 yrs of age working as a painter suffered physical disability of left lower limb assessed at 75%, about 37.5% of whole body, also left lower limb shortened by 3 cm and could not stand independently or walk without aid of a walker or attendant, cannot sit cross legged, squat or use an Indian toilet, cannot climb up and down a staircase. It was held that the earning capacity of appellant as on date of accident stood completely negated and not reduced. Appellant rendered permanently incapable of working as a painter or do any manual work. Compensation for loss of future earning therefore had to be proper and just to enable him to live a life of dignity and not an elusive compensation. If 75% physical disability had rendered appellant permanently disabled from pursuing his normal vocation or any similar work, it is difficult to comprehend grant of compensation to him in ratio to disability to whole body. Compensation granted towards loss of future earning on account of disability at Rs 2,31,000 was held grossly inadequate. Appellant therefore was held entitled to compensation for loss of future earning based on his 75% permanent physical functional disability recalculated with salary of Rs 5500 with multiplier of 14 at Rs 6,93,000. On the whole, compensation awarded by High Court modified and recalculated for pain and sufferings Rs 1,00,000, medical expenses Rs 7350, attendent charges Rs 21,000, loss of earnings during treatment Rs 66,000, conveyance charges Rs 10,000, loss of future earnings for disability Rs 6,93,000, future medical expenses Rs 2,50,000, loss of amenities Rs 50,000. All coming to a total of Rs 11,97,350 along with interest @ 6% from date of petition till realization. [Anthony v. Karnataka SRTC, (2020) 7 SCC 161]

Sales Tax and VAT — Works Contract — Employer’s (person who had awarded the works contract) obligation to reimburse sales tax in terms of the contract: After the Forty-sixth Amendment to the Constitution, the works contract is divided into two parts by a legal fiction: one for sale of goods/ materials and other for supply of labour/services; and it is possible for the States to levy sales tax on the value of goods/materials involved in such works contract. Further, rejecting the contention that there is no sales tax on the “completed item of work” which is an immovable property and, therefore there could be no reimbursement, held the expression “completed item of work” in Cl. 45.2, signifies the intent that reimbursement would be permissible only after execution of a particular item of work has been completed and accomplished i.e. this expression is intended to contradistinguish the cases where any item of work remains incomplete and yet any claim for reimbursement of the sales tax levied is sought for. The expression “completed item of work” cannot be read to mean as if signifying the levy of sales tax itself on the completed item of work because such reading of this expression would be totally disjunct from the context and would be entirely detached from the real intent. Further, Circular dt. 7-11-2001, issued by the State Government, clarifying and directing nonreimbursement of the sales tax, held, to be an unwarranted attempt to wriggle out of the contractual obligations with perverse construction of the plain terms of the existing contracts and thus disapproved. [State of Orissa v. B. Engineers & Builders Ltd., (2020) 7 SCC 198]

Cases ReportedSupreme Court Cases

Civil Procedure Code, 1908 — S. 96(3), Or. 23 Rr. 3 & 3-A and Or. 43 R. 1-A(2) — Compromise decree — Essentialities of: The scheme of Or. 23 R. 3 is to avoid multiplicity of litigation. Compromise between parties to proceedings encourages amicable settlement. It is an agreement between parties. Courts cannot impose compromise on unwilling party. Person questioning lawfulness of compromise must approach the same court which recorded compromise. After repeal of Or. 43 R. 1(m), no appeal lies against compromise decrees. Compromise decree operates as estoppel and binds parties thereto until it is set aside by competent court. Where a party to compromise denies execution of such compromise, right has been given under Or. 43 R. 1-A(2) to raise a challenge thereto. S. 96(3) would not bar such appeals. S. 96(3) is applicable where factum of compromise or appeal is not disputed. Civil suit filed by stranger to that proceeding challenging legality of compromise is not maintainable. Such stranger, who was not party to compromise, would not have cause of action to file separate suit to challenge legality of compromise. [Triloki Nath Singh v. Anirudh Singh, (2020) 6 SCC 629]

Civil Procedure Code, 1908 — Ss. 47, 38 and 42: Execution of an award/decree can be only to the extent of what has been awarded/decreed and not beyond the same. Moreover, what is awarded or decreed must be independently capable of execution. Thus, arbitration award determining only the price of land cannot be directed to be executed as suit for specific performance of agreement to sell the land, with a direction for execution of a sale deed of the land in question. Moreover, such award determining the price of land alone, could not be independently executed. [Rajasthan Udyog v. Hindustan Engineering & Industries Ltd.(2020) 6 SCC 660]

Constitution of India — Arts. 30, 29, 45, 21-A, 14 and 19 — Aided Non-Government Madrasahs (aided minority schools) — Permissible regulation of appointment of teachers: The rights of minorities under Art. 30 are not absolute. The validity of selection and nomination of teachers by statutory body by following statutory procedure under the W.B. Madrasah Service Commission Act, 2008, affirmed. State Government, held, can nominate teachers to be appointed in said minority institutions. Such nomination of teachers and composition of body nominating them should comply with constitutional objectives and national interest. Ss. 8 and 10 to 12 of the W.B. Madrasah Service Commission Act, 2008 and the W.B. Madrasah Service Commission Recruitment (Selection and Recommendation of Persons for Appointment and Transfer to the posts of Teaching and Non-Teaching Staff) Rules, 2010 providing for the above, held, comply with constitutional objectives and national interest and are not ultra vires Art. 30(1). However, slight modification and proper interpretation of the provisions of the Commission Act, 2008 clarified and directed accordingly, to bring them in conformity with constitutional objectives and principles established by precedents. [Mohd. Rafique v. Contai Rahamania High Madrasah, (2020) 6 SCC 689]

Constitution of India — Arts. 32 and 21: In this case, there was mala fide PIL against sale and use of soft drinks like Coca Cola, Thums Up, allegedly in the interest of public health but without any expert report. Exemplary costs of Rs 5,00,000 was imposed. [Umedsinh P Chavda v. Union of India, (2020) 6 SCC 684]

Courts, Tribunals and Judiciary — Virtual Court/Videoconferencing — Outbreak of Coronavirus (COVID-19): As there was necessity of reducing physical presence in court premises for maintenance of social distancing as per guidelines and continued dispensation of justice, holding of courts through videoconferencing from Supreme Court level to District Court level, validated. [Guidelines for court functioning through videoconferencing during Covid-19 Pandemic, In re.,(2020) 6 SCC 686]

Criminal Procedure Code, 1973 — Ss. 397, 399, 401(2), 173(2), 156(3) and 203 — Revision against dismissal of criminal complaint under S. 203 CrPC: Grant of opportunity of hearing to accused, is essential. [Subhash Sahebrao Deshmukh v. Satish Atmaram Talekar, (2020) 6 SCC 625]

Election — Local Government/Bodies/Municipalities/Panchayats/Autonomous and Other Bodies — Recall/Removal from Office/No-Confidence Motion: The applicable statutory rules providing for voting on no-confidence motion by secret ballot have binding effect. Hence, revoting or fresh voting, directed on the no-confidence vote in question, in the facts and circumstances of the case, as the same had not been done by secret ballot. Such revoting, held, must be by way of secret ballot in accordance with the 1966 Rules. [Laxmi Singh v. Rekha Singh, (2020) 6 SCC 812]

Energy, Power and Electricity — Electricity — Generation and Transmission/Supply/Distribution of electricity — Standby charges: In this case, TPC had an agreement with MSEB for standby supply of electricity and BSES/REL used to purchase electricity from TPC. At the relevant time, TPC was paying an amount of Rs 24.75 crores per month i.e. Rs 297 crores p.a. to MSEB by way of standby charges which was built into the tariff and the said amount was recovered by TPC from its customers who in turn recovered it from their retail consumers. TPC under the Principles of Agreement dt. 31-1-1998 was bound to supply standby power as and when required by BSES/REL and even after providing the standby facility of 275 MVA to BSES/REL, TPC still enjoyed the standby facility of 550 MVA from MSEB. Government of Maharashtra formed a Committee to resolve the issue of quantum of standby charges required to be paid by BSES/REL to TPC and passed an Order dt. 19-1-1998 whereby stipulating a sum of Rs 3.5 crores p.m. should be paid by BSES/REL to TPC by way of standby charges. The standby charges were enhanced from Rs 24.75 crores per month to Rs 30.25 crores per month with effect from 1-12-1998 i.e. from Rs 297 crores to Rs 363 crores annually and TPC instead of requiring a pro rata share of the incremental standby charges from BSES/REL purported to divide the amount of Rs 30.25 crores in the ratio of 50: 50. APTEL passed an order dt. 20-12-2006 and directed that 23% of the standby charges qua MSEB for the period in question should be borne by BSES/REL and balance should be borne by TPC. In this case, order passed by Technical and Judicial Members of APTEL, was upheld. [Tata Power Co. Ltd. v. Adani Electricity Mumbai Ltd., (2020) 6 SCC 641]

Energy, Power and Electricity — Electricity — Tariff — Determination of tariff — S. 38 of the Damodar Valley Corporation Act, 1948: Interest on capital provided by participating Government i.e. double benefit qua computation of tariff is not grantable, when applying the normative debt equity ratio, the appellant (a statutory body constituted under the DVC Act, 1948) is already given the benefit of return on capital on the normative equity portion and also interest on the loan portion. [Damodar Valley Corpn v. CERC, (2020) 6 SCC 795]

Human and Civil Rights — Humanitarian and Natural Disasters, Epidemics and Pandemics — COVID-19 Pandemic: Ratha Yatra, Puri, and any religious or secular activity connected therewith, directed to be not held this year in the interest of public health. The right to freely profess and propagate religion under Art. 25 of the Constitution, is subject to health. Undisputedly, Ratha Yatra gathering would bring together 10-12 lakh people for a period of 10-12 days, which in light of COVID-19 Pandemic, would be a grave health risk. [Odisha Vikash Parishad v. Union of India, (2020) 6 SCC 682]

Cases ReportedSupreme Court Cases

Civil Procedure Code, 1908 — S. 9-A [as inserted by CPC (Maharashtra Amendment) Act, 1977]: Objection as to jurisdiction to entertain suit, to be decided by the court as a preliminary issue under S. 9-A. The word “jurisdiction” in S. 9-A, does not include issue of bar of limitation. The word “jurisdiction” in S. 9-A is qualified with the expression “to entertain the suit”. Both the said expressions when taken together give the meaning that court should have power or inherent jurisdiction to receive suit for consideration on merits. Meaning to be given to “jurisdiction to entertain” in S. 9-A is a narrow one as to maintainability. It is only the competence of the court to receive a suit for adjudication which is covered under S. 9-A. In a case barred by limitation, court possesses jurisdiction to decide that issue. Where court has no jurisdiction, it cannot decide that issue on merits at all. Thus, question of limitation in no case can be said to be a question of jurisdiction of court in the context of S. 9-A. Issue of limitation, therefore, cannot be decided as a preliminary issue of jurisdiction under S. 9-A. Kamalakar Eknath Salunkhe, (2015) 7 SCC 321, held, is correctly decided and is affirmed. Foreshore Coop. Housing Society Ltd., (2015) 6 SCC 412 which took a contrary view, overruled. [Nusli Neville Wadia v. Ivory Properties, (2020) 6 SCC 557]

Consumer Protection — Services — Medical practitioners/services — Medical negligence — Determination of: The burden of proof is on complainant to establish medical negligence. The cause of action arises after damage has been caused. The injury caused to victim should be sufficiently proximate to breach of duty by medical practitioner. He would be liable only when his conduct falls below the standards of a reasonably competent practitioner in his field. The applicable principles also explained in detail. [Maharaja Agrasen Hospital v. Rishabh Sharma, (2020) 6 SCC 501]

Criminal Procedure Code, 1973 — S. 439 — Rejection of bail — When warranted — Implication in large number of heinous crimes: In this case, petitioner’s husband was accused in murder case and 45 other cases of heinous crime were pending against him. Hence, held, his bail was rightly rejected by High Court. [Sunita Bhati v. State of U.P., (2020) 6 SCC 556]

Election — Delimitation/Reservation of Constituencies — Nature and Scope: In this case, delimitation notification by State Government for creating 9 out of 4 districts without following procedure therefor, that is, without any research or proposal by Delimitation Commission therefor, was held, illegal. [Dravida Munnetra Kazhagam v. State of T.N., (2020) 6 SCC 548]

Human and Civil Rights — Humanitarian and Natural Disasters, Epidemics and Pandemics — Visakhapatnam LG Polymers Gas leak disaster: In this case, there was a criminal case and High Court passed directions for complete seizure or sealing of plant/premises. The Supreme Curt observed that the interim order was issued regarding safety measures and liberty was granted to raise other issues. [LG Polymers (India) (P) Ltd. v. State of A.P.,(2020) 6 SCC 622]

Service Law — Pension — Entitlement to pension: In this case, the Supreme Court considered the issue that whether the employees opting for voluntary retirement under SBI-VRS 2000, are entitled to pension under SBI Employees’ Pension Fund Rules, 1995. The Court held that the voluntary retirement scheme (VRS) was not floated by SBI on its own volition but was pursuant to exercise undertaken by IBA, as approved by Government, in view of recent developments in modern technology, need to have new skill, and rationalize manpower, whereunder it was provided that pension would be granted after completion of 15 yrs of service, as special measure. Further held, once it approved the Scheme, SBI being instrumentality of State under Art. 12 of the Constitution was bound by it and could not wriggle out of its obligation by claiming shelter of the SBI Employees’ Pension Fund Rules, 1995 which provided for 20 yrs of qualifying service by not amending the said Rules. [SBI v. Radhey Shyam Pandey, (2020) 6 SCC 438]

Cases ReportedSupreme Court Cases

Chhattisgarh Cooperative Societies Act, 1960 (17 of 1961) — Ss. 49-E(2), 54(1), (2), (3)(a) & (b), 2(c-i) and 2(a-i) — District Central Cooperative Bank: In this case, there was appointment of Chief Executive Officer (CEO), as per Noti. dt. 12-1-1971 under S. 54(3) when cadre of officers as per notification has been constituted as per S. 54(2). There were conflicting provisions regarding appointment procedure and there was difficulty posed by statutory provisions. While considering the manner of interpretation, it was held that S. 57-B(19), which was intended to have overriding effect, was deleted and S. 54(3)(a) and (b) were inserted. Absolute power was conferred upon cooperative banks to appoint CEO was deleted. Thus S. 49-E(2) and Ss. 54(3)(a) and (b) are to be read harmoniously. [Chhattisgarh State Coop. Bank Maryadit v. Zila Sahkari Kendriya Bank Maryadit, (2020) 6 SCC 411]

Constitution of India — Art. 226 — Maintainability of writ petition — Relegation to alternate remedy — When proper: Disputed questions of fact of complex nature requiring production of documentary evidence should not normally be entertained by High Court in its writ jurisdiction. However, High Court has discretion to entertain even disputed questions of fact on sound judicial principles, considering nature of controversy. [Punjab National Bank v. Atmanand Singh, (2020) 6 SCC 256]

Courts, Tribunals and Judiciary — Judicial Process — Recusal by Judge — On ground of legal predisposition: A Judge, who expressed his opinion on a legal issue in a smaller Bench, held (per curiam), can hear the same matter in a larger Bench upon reference to that Bench. [Indore Development Authority [Recusal Matter-5J] v. Manohar Lal, (2020) 6 SCC 304]

Courts, Tribunals and Judiciary — Tribunals — Appointment and selection: The order dt. 9-2-2018 in Kudrat Sandhu, (2018) 4 SCC 346, paras 1 and 2, clarified. Appointment of the Chairpersons of all Tribunals, directed to be made by Central Government in consultation with the Chief Justice of India. Search-cum-Selection Committee for the appointment of Judicial Members of the Central Administrative Tribunal also directed to proceed with the selection of Administrative Members. Committee that has been constituted for selection of the Members of the Central Government Industrial Tribunal directed to proceed as per previous order as it has already proceeded with its work. [Kudrat Sandhu v. Union of India, (2020) 6 SCC 251]

Courts, Tribunals and Judiciary — Tribunals — Appointments in certain tribunals requiring immediate attention: Recommendations of Selection Committee, directed to be made immediately. Where recommendations had already been made, they must be implemented expeditiously within two weeks. [Madras Bar Assn. v. Union of India, (2020) 6 SCC 247]

Criminal Procedure Code, 1973 — S. 439 — Entitlement to bail — Valid grounds for, made out — Contract for supply of radar stations: In this case of alleged fraud and cheating, civil/arbitration proceedings were pending in respect of the disputes. More than one year was spent by accused in custody already and arguments opposing bail on ground of threat to national security were not found tenable. Arbitral Tribunal had not merely protected economic interests of the State but had also permitted State Police to be present at project site and Maritime Board to supervise and monitor functioning of project. Hence, bail granted, subject to such terms and conditions, as trial court deems fit and appropriate in facts and circumstances of case. [Jinofer Kawasji Bhujwala v. State of Gujarat, (2020) 6 SCC 298]

Energy, Power and Electricity — Electricity — Electricity consumption — Past electricity dues payable by debtor/last owner: Electricity dues, where they are statutory in character under the Electricity Act and as per the terms and conditions of supply, cannot be waived and cannot partake the character of dues of purely contractual nature. Further, where the existence of electricity dues, whether quantified or not, have been specifically mentioned as a liability of the purchaser in the auction notice and the sale is on “as is where is, whatever there is and without recourse basis”, the liability to pay electricity dues exists on the purchaser. [Telangana State Southern Power Distribution Co. Ltd. v. Srigdhaa Beverages, (2020) 6 SCC 404]

Family and Personal Laws — Hindu Law — Hindu Undivided Family (HUF) — HUF property — Inference regarding — Requisite proof — Burden of proof: The burden is on person who alleges existence of HUF to prove the same. The proof is required not only with respect to jointness of family but also with respect to fact that property concerned belongs to joint Hindu family, unless there is material on record to show that the property is the nucleus of joint Hindu family or that it was purchased through funds coming out of this nucleus. [Bhagwat Sharan v. Purushottam, (2020) 6 SCC 387]

Kerala Buildings (Lease and Rent Control) Act, 1965 (2 of 1965) — S. 20 r/w S. 11(8) — Scope of revision under — Restriction of, to propriety of the order and not to re-appreciation of evidence: Interference with findings of fact is not permissible, when the same are not perverse. High Court, exercising revisional jurisdiction is entitled to satisfy itself as to the correctness or legality or propriety of any decision or order impugned before it, however, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, it cannot exercise its power as an appellate power to reappreciate or reassess the evidence for coming to a different finding on facts. [Addissery Raghavan v. Cheruvalath Krishnadasan, (2020) 6 SCC 275]

Motor Vehicles Act, 1988 — Ss. 166, 168 and 173 — Compensation — Computation of — Conventional heads: The compensation for loss of consortium includes compensation for loss of love and affection. Hence, once compensation is awarded for loss of consortium, there cannot be a further award of compensation under ‘Loss of love and affection’. [M.H. Uma Maheshwari v. United India Insurance Co. Ltd., (2020) 6 SCC 400]

Penal Code, 1860 — Ss. 302/34 — Murder trial: In this case, there was death of deceased (well-known person and local politician) due to 5 firearm injuries by firing from rifles by appellant, his brother and another at deceased. The cause of death was background of personal and political rivalry between parties. The conviction of appellant-accused under Ss. 302/34 IPC, and S. 27 of the Arms Act, and award of sentence of life imprisonment with fine, for murder of deceased, was confirmed. [Ombir Singh v. State of U.P., (2020) 6 SCC 378]

Service Law — Recruitment Process — Examination — Judicial review/Validity — Interference with evaluation of candidates in examination — Scope — Limited: In this case of selection to Class III posts in various departments of Government of Bihar, it was held that the scope of judicial review under Art. 226 of the Constitution in matters concerning evaluation of candidates, particularly, for purpose of recruitment to public services are narrow. Further held, in absence of any provision for re-evaluation of answer sheets, judicial review should be exercised only under exceptional circumstances. [Bihar Staff Selection Commission v. Arun Kumar, (2020) 6 SCC 362]

Transfer of Property Act, 1882 — Ss. 106 and 107 — Determination of nature of lease, no specific period of tenancy is mentioned in the deed: Where the lease/rent deed does not mention the period of tenancy, other conditions of the deed and intention of the parties must be gathered to find out the true nature of the deed. [Siri Chand v. Surinder Singh, (2020) 6 SCC 288]

Cases ReportedSupreme Court Cases

Courts, Tribunals and Judiciary — Tribunals — Appointment process — Lack of judicial dominance: Composition of Search-cum-Selection Committees in the Tribunal, Appellate Tribunal and Other Authorities (Qualifications, Experience and Other Conditions of Service of Members) Rules, 2017, being such as to dilute the control of the judiciary in the appointment of Members of tribunals. Such procedure, held, is against constitutional scheme and independence of judiciary. Lack of judicial dominance in the appointment process of Members and Presiding Officers of tribunals is in direct contravention of doctrine of separation of powers and is an encroachment on the judicial domain. Executive is a litigating party in most of the litigations and hence, cannot be allowed to be a dominant participant in judicial appointments. Principle of exclusion of executive control over judiciary is not limited to traditional courts alone but extends to tribunals because tribunals are formed as an alternative to courts and perform judicial functions. Tribunals constituted in substitution of courts should have similar standards of appointment, qualification and conditions of service to inspire confidence of public at large. The Tribunal, Appellate Tribunal and Other Authorities (Qualifications, Experience and Other Conditions of Service of Members) Rules, 2017, as a whole, held, ultra vires. As interim measure, directed that appointments to the Tribunals/Appellate Tribunals concerned and terms and conditions of appointment, service, superannuation, etc. shall be in terms of the respective statutes as they stood before enactment of Finance Act, 2017. However, Central Government given liberty to seek modification of this order after it has framed fresh Rules strictly in conformity and in accordance with the principles delineated in R.K. Jain, (1993) 4 SCC 119, L. Chandra Kumar, (1997) 3 SCC 261, Madras Bar Assn., (2014) 10 SCC 1 and Gujarat Urja Vikas Nigam Ltd., (2016) 9 SCC 103 conjointly read with this judgment. However, in case any additional benefits concerning the salaries and emoluments have been granted under the Finance Act, they shall not be withdrawn and will be continued. This would equally apply to all new Members. [Rojer Mathew v. South Indian Bank Ltd., (2020) 6 SCC 1]

Cases ReportedSupreme Court Cases

Constitution of India — Art. 141 — Unanimous decisions versus split decisions — Precedential value: There is no difference in precedential value of unanimous decisions and those rendered by majority in split decisions. Prayer to commute death sentence on ground that death sentence in appeal was not unanimously approved but was approved by a 2:1 split decision, rejected. The contention that death ought not to be awarded in case of a single dissent notwithstanding opinion of majority is not supported by precedents. [Manoharan v. State, (2020) 5 SCC 782]

Constitution of India — Art. 145(3) — Substantial question of law as to interpretation of the Constitution: Questions of law formulated by two-Judge Bench of Supreme Court in para 14 of its order in Subhash Chandra Agrawal, (2011) 1 SCC 496, referred to Constitution Bench of Supreme Court, as earlier directed by the two-Judge Bench on 26-11-2010. [Supreme Court of India v. Subhash Chandra Agarwal, (2020) 5 SCC 674]

Constitution of India — Art. 226 — Maintainability — Delay/Laches: In this case, petitioners were challenging appointments made during years 2001 and 2003 only in the years 2012 and 2013 after they becoming qualified in year 2011. It was held that the petitioners were not entitled to any relief on ground of unexplained laches and inordinate delay of about more than 10 yrs in challenging appointments. Besides, though relief was claimed against State, benefit of regularisation was sought to be denied to appointed Teachers, who were not even impleaded as party respondents (Association impleaded as third respondent without furnishing any material to show that majority of appointees were members of said Association). [Chander Mohan Negi v. State of H.P., (2020) 5 SCC 732]

Constitution of India — Arts. 19(1)(a) & (2), 19(1)(g) & (6) and Art. 21 — Curtailment of fundamental rights (due to restriction on internet services in Jammu and Kashmir herein) — For reasons of national security (due to crossborder terrorism in Jammu and Kashmir): Fundamental rights, reiterated, need to be balanced with national security concerns, in line with the constitutional principles, when situation so demands. [Foundation for Media Professionals v. State (UT of J&K), (2020) 5 SCC 746]

Consumer Protection — Services — Banking/Shares/Securities and other Financial Services: Under-insurance by bank i.e. non-insuring of whole of the hypothecated assets of the borrower by the bank, amounted to deficiency of service, when the bank contractually bound to do so. Obtaining of insurance of only some of such assets by bank is not permissible when the bank exercises the option to itself insure the goods. [Canara Bank v. Leatheroid Plastics (P) Ltd., (2020) 5 SCC 722]

Consumer Protection Act, 1986 — Ss. 13(2)(a) and 13(2)(b)(ii) r/w Ss. 13(3), 13(3-A), 13(4), 14 and 24-A: Limitation period for filing reply/response to the complaint by the respondent/opposite party, mandatorily cannot be extended beyond the prescribed period of 45 days (i.e. period of 30 days along with discretionary extension of time up to 15 days). [New India Assurance Co. Ltd. v. Hilli Multipurpose Cold Storage (P) Ltd., (2020) 5 SCC 757]

Education Law — Employment and Service Matters Re Educational Institutions — Officers/Authorities/Staff, Faculty, etc. — Teachers/Part-time Teachers/Lecturers — Assistant Director in Centre for Adult Continuing Education and Extension (CACEE): In this case, appellant was appointed in CACEE w.e.f. 26-12-1989 which received sanction of University vide letter dt. 1-2-1990. CACEE was established on temporary basis for purpose of eradicating illiteracy. Posts in CACEE were not included in schedule to the University First Ordinances, 1978 which indicating that posts in Centre were not posts in University. Further, for a person to be “Teacher” in terms of S. 2(27) of 1974 Rules, he/she should be imparting instruction or supervising research in any of the colleges of recognized institutions.“College” in terms of S. 2(7) means an institution maintained by or affiliated to University while “recognised institution” as envisaged under S. 2(19) means institution for research or special studies other than affiliated college, recognised as such by University. Centre not a “college” since it is neither maintained nor affiliated to University, nor any evidence produced to establish that it was an institution recognised by University within meaning of S. 2(19). The Supreme Court in this case held that when appellant does not fulfil requirement of “Teacher”, he cannot claim applicability of Statute 10 of Kerala University First Statutes, 1977 and claim to retire at 60 yrs of age. Further held, even assuming that appellant was imparting instruction in different courses in the Centre, that cannot make him “Teacher” within meaning of Ss. 2(27) and (28). Furthermore, Government Letter dt. 3-10-2014 merging Centre with Institute of Distance Education also supports conclusion that Centre was not maintained by University but was self-financing centre. [P. Gopinathan Pillai v. University of Kerala, (2020) 5 SCC 711]

GST — Central Goods and Services Act, 2017 — Ss. 67(8) and 67(6) — Search and seizure — Release of seized goods — Procedure to be followed: The directions for release of seized goods by extricating the assessees from paying the applicable tax amount in cash, in exercise of writ jurisdiction by the High Court, not valid, when mechanism already provided for in the Act and the Rules for release. [State of U.P. v. Kay Pan Fragrance (P) Ltd., (2020) 5 SCC 811]

Motor Vehicles Act, 1988 — S. 166 — Contributory negligence — If any — Determination of: In this case, deceased victim on two-wheeler at night dashed into truck trailer parked on road without any reflectors. The Supreme Court held that once substantive evidence of eyewitness before MACT established that truck trailer had been parked on road at night without any reflectors, there was no reason or justification for MACT to proceed on basis of conjecture in arriving at a finding of contributory negligence. The High Court had not discussed this at all and simply proceeded to confirm finding of contributory negligence. Consequently, it was held, there was no contributory negligence. [Jumani Begam v. Ram Narayan, (2020) 5 SCC 807]

Penal Code, 1860 — Ss. 302/34 — Murder in furtherance of common intention: In this case of collective assault resulted in death of one due to stabbing, there was involvement of 4 accused persons (including 3 appellant-accused herein). Prior meeting of minds of all accused, was established and all 3 appellants were found having intention common with that of fourth accused, who inflicted multiple injuries on deceased with knife. There were sufficient materials available, to establish that all appellants returned together to place of occurrence and attacked deceased victim. Eyewitnesses gave uniform account of assault on deceased and no major contradiction or discrepancy in their statements in course of their examination, was made out. Delay in filing FIR, was also properly explained. It was held that although eyewitnesses were known to deceased, and there was no neutral witness, but for that factor alone, appellants cannot be exonerated. Hence, conviction of appellants under Ss. 302/34, and sentence of life imprisonment with fine and default stipulation, was confirmed. [Dhanpal v. State (NCT of Delhi), (2020) 5 SCC 705]

Service Law — Departmental Enquiry — De novo/Fresh enquiry — When envisaged — Violation of principles of natural justice: In this case there were allegations pertaining to appointment of more than 500 Asstt. Teachers in Basic Schools in State of U.P. in violation of 1981 Rules. The High Court by impugned judgment set aside dismissal order and remitted matter to disciplinary authority to hold enquiry afresh from stage of charge-sheet finding that enquiry was held in violation of principles of natural justice. The Supreme Court held that serious allegations of corruption raised against respondent State require determination in full-fledged enquiry by disciplinary authority. [Ramesh Singh v. State of U.P., (2020) 5 SCC 677]

Service Law — Pension — Pension Scheme — General Provident Fundcum- pension-cum-gratuity benefit (Triple Benefit Scheme) — Extension of benefit to employees of deficit colleges vide amendment dt. 15-1-2014 — Prescription of cut-off date of 31-8-2010: In this case, in absence of arbitrariness in applicability of cut-off date as well as rationality behind it based on date of Cabinet decision granting Triple Benefit Scheme to such deficit grant colleges no interference with impugned judgment denying benefit of said Scheme to appellants who retired before 31-8-2010 is called for. [Mohd. Ali Imam v. State of Bihar, (2020) 5 SCC 685]

Service Law — Retirement/Superannuation — Voluntary retirement — Retiral benefits: In this case, the application dt. 28-7-2005 seeking voluntary retirement was not considered and subsequent resignation dt. 3-5-2006 was accepted. While considering the claim to retiral benefits, the Supreme Court held that though respondent’s husband was qualified to appear for voluntary retirement in terms of R. 50(2) of the Pension Rules, 1996, required its acceptance by appointing authority. Besides, when respondent’s husband submitted application for voluntary retirement he was already issued two charge-sheets alleging misconduct and pending disciplinary proceedings he had no absolute right seeking acceptance of his application for voluntary retirement since employer keen on proceeding with inquiry would be entitled not to consider the application. Moreover, proceeding pertaining to charge-sheet culminated in final order dt. 3-9-2005 whereunder punishment of withholding of increment was imposed. Thus, non-consideration of application for voluntary retirement was justified. Furthermore, on acceptance of respondent’s husband application for resignation he was relieved on 31-5-2006 and terminal benefits were paid, which he accepted and no dispute pertaining to same was raised during his lifetime. Impugned judgment directing payment of retiral benefits in writ petition filed belatedly in the year 2012 holding subsequent resignation dt. 3-5-2006 be considered as application for voluntary retirement, was held unsustainable and liable to be set aside. [Rajasthan SRTC v. Mohani Devi, (2020) 5 SCC 741]

Service Law — Seniority — Determination of seniority — Direct recruits vis-à-vis promotees — Inter se seniority — Rota-quota principle: In this case it was held that though N.R. Parmar, (2012) 13 SCC 340, purportedly interpreted Central Government OMs dt. 7-2-1986 and 3-7-1986 yet in effect it misconstrued them, and for this reason, it did not properly consider the purport of subsequent clarificatory OM dt. 3-3-2008. General principle of law, further held, is that a direct recruit cannot get backdated notional seniority earlier than he joined service. N.R. Parmar case, insofar as it confers backdated seniority with reference to initiation of recruitment process, is not sustainable in law. N.R. Parmar case overruled and Jagdish Ch. Patnaik, (1998) 4 SCC 456 affirmed on this point.  However, inter se seniority where already fixed by applying N.R. Parmar case and the Central Government OM dated 4-3-2014 based thereon, protected. [K. Meghachandra Singh v. Ningam Siro, (2020) 5 SCC 689]

Cases ReportedSupreme Court Cases

Arbitration and Conciliation Act, 1996 — Ss. 2(2) and proviso thereto (proviso ins. w.e.f. 23-10-2015), 2(1)(f), Pt. I or Pt. II and Ss. 11(6) and 9 — Seat of arbitration — Determination of: Mere expression “place of arbitration” in the arbitration clause, held, cannot by itself be the basis to determine the intention of the parties that they have intended that place as the juridical “seat” of arbitration. Intention of the parties as to the “seat” should be determined from reading all clauses in arbitration agreement as a whole, as to whether there are any clear indicia which indicate the seat of arbitration; and the conduct of the parties. Designation of “place of arbitration” in arbitration clause, plus significant indica determine seat of arbitration. [Mankastu Impex (P) Ltd. v. Airvisual Ltd., (2020) 5 SCC 399]

Civil Procedure Code, 1908 — Or. 39 Rr. 1 and 2 — Grant of temporary injunction: Temporary injunction in a suit for specific performance of contract for sale cannot be granted when there are doubts as to existence of a concluded contract and there is delay in instituting the suit. The onus is on plaintiff to demonstrate that the parties were ad idem qua their obligations/concluded contract. The grant of relief in a suit for specific performance is itself a discretionary remedy and a plaintiff seeking temporary injunction will therefore have to establish a strong prima facie case on basis of undisputed facts. Further, the conduct of the plaintiff will also be a very relevant consideration for purposes of injunction and the discretion has to be exercised judiciously and not arbitrarily. [Ambalal Sarabhai Enterprise Ltd. v. KS Infraspace LLP Ltd., (2020) 5 SCC 410]

Civil Procedure Code, 1908 — Or. 1 R. 8 — Representative suit: Decree in a representative suit is binding on all persons on whose behalf or for whose benefit suit is filed or defended. [C.J. Baby v. Fr. Jiju Varghese, (2020) 5 SCC 420]

Service Law — Pay — Pay revision — Expert Body — Prescription of pay scales and incentives — Exclusion of judicial review: When Government has taken decision based on recommendations of expert committee, and several other factors including financial implication, Court should not substitute its views ad interfere only when it is satisfied that Government’s decision was arbitrary. [Union of India v. M.V. Mohanan Nair, (2020) 5 SCC 421]

Civil Procedure Code, 1908 — Or. 21 R. 90 — S. 5 of Limitation Act — Inapplicability of, to proceedings under Or. 21 R. 90 CPC: The limitation for filing an application to set aside a sale in execution of decree is 60 days in terms of Art. 127 of the Limitation Act. S. 5 of the Limitation Act which deals with extension of time or condonation of delay is not applicable to proceedings under Or. 21 R. 90 CPC and therefore, the delay, if any in filing of proceedings under Or. 21 R. 90 CPC, cannot be condoned under S. 5 of the Limitation Act. [Aarifaben Yunusbhai Patel v. Mukul Thakorebhai Amin, (2020) 5 SCC 449]

Criminal Procedure Code, 1973 — Ss. 340/195(1)(b) — Giving false evidence in court: As there was no prima facie case made out against accused for giving false evidence in Court, requiring initiation of criminal proceedings against him, application for prosecution for giving false evidence in court dismissed. [Deepak Chandrakant Jhaveri v. Johnson Dye Works (P). Ltd., (2020) 5 SCC 456]

Arbitration and Conciliation Act, 1996 — Ss. 2(1)(e), 2(2), 11(6) and 20 — Seat of arbitration — Determination of, when only the venue is specified: If the “subject-matter of the suit” is situated within the arbitral jurisdiction of two or more courts, the parties can agree to confine the jurisdiction in one of the competent courts. Seat of arbitration once determined, amounts to exclusive jurisdiction clause. [Brahmani River Pellets Ltd. v. Kamachi Industries Ltd., (2020) 5 SCC 462]

Service Law — Departmental Enquiry — Charge/Charge-sheet — Competent authority — “Disciplinary authority”/“competent authority”: Under R. 3(h) of the Bharat Petroleum Corporation Management Staff Conduct, Discipline and Appeal Rules, 1976, “competent authority” means any authority empowered by Board of Directors or Chairman by any general or special rule or order to discharge function or use powers specified in rule or order. Further held, “competent authority” includes “disciplinary authority”. Under Sch. I, Functional General Manager which include DGM was disciplinary authority for punishment lesser than dismissal while Functional Director was disciplinary authority for punishment of dismissal. Hence, DGM was competent to issue charge-sheet since penalty of discharge was imposed. Besides, employee neither in his reply to charges nor in departmental appeal raised any issue pertaining to competency of DGM to issue charge-sheet but raised it for first time in writ petition. Impugned judgment finding punishment of dismissal (discharge actually) to be vitiated since charge-sheet was not issued by competent authority unsustainable and liable to be set aside. Directions for issuance of fresh charge-sheet set aside and order of discharge not interfered with. [Bharat Petroleum Corpn. Ltd. v. Anil Padegaonkar, (2020) 5 SCC 474]

Human and Civil Rights — Right to Information Act, 2005 — Ss. 2(h), (f), (j), 8(1)(d), (e), (j) and 11 — Information relating to assets declared by Judges of Supreme Court and High Courts: Chief Justice of India is a “public authority” under the Right to Information Act, 2005 and the Act covers the office of the CJI. Information relating to assets declared by Judges of Supreme Court is subject to the provisions of RTI Act. [Supreme Court of India v. Subhash Chandra Agarwal, (2020) 5 SCC 481]

Cases ReportedSupreme Court Cases

Arbitration in electricity matters: It has been explained in this article that the judgment in Gujarat Urja Vikas Nigam Ltd. v. Essar Power Ltd., (2008) 4 SCC 755 having been passed dehors the settled principles of statutory interpretation, is per incuriam and the same needs to be revisited by the Supreme Court as and when the opportunity presents itself in an appropriate case, so that the right of power sector entities to have recourse to alternative adjudicatory mechanism of “arbitration” is not subjected to the additional (discriminatory) requirement of approval of SERCs. Arbitration in electricity matters: a discordant Note struck by Supreme Court by Rajiv Yadav.[(2020) 5 SCC (J-12)]

Civil Procedure Code, 1908 — S. 9-A (as applicable in Maharashtra prior to its deletion in 2018) and Or. 14 R. 2 — Objection as to jurisdiction to be decided by the court as a preliminary issue under S. 9-A: As held by the three-Judge Bench in Nusli Neville Wadia, (2020) 6 SCC 557, under the provisions of S. 9-A and Or. 14 R. 2, it is open to decide a preliminary issue only if it is purely a question of law, and not a mixed question of law and fact requiring recording of evidence. Thus, held, “jurisdiction” in S. 9-A does not include issue of limitation as the same involves mixed questions of fact and law. Issue of limitation has to be considered along with other issues that would arise for adjudication in the suit concerned. [Shyam Madan Mohan Ruia v. Messer Holdings Ltd., (2020) 5 SCC 252]

Copyright Act, 1957 — Ss. 55, 51 and 18: The cause of action to a plaintiff to file a suit accrues when there is a clear and unequivocal threat to infringe a right.  The cause of action for filing suit for declaration and injunction qua infringement of copyright in scheduled films which had been assigned earlier by plaintiff arise, after the lapse of assignment period. [Zee Telefilms Ltd. v. Suresh Productions, (2020) 5 SCC 353]

Criminal Procedure Code, 1973 — Ss. 200 to 204, 156(3), 173, 300 and 362 — Second complaint — Maintainability or otherwise under different scenarios: Principles regarding scope of inquiry under S. 202 and duty of Magistrate while entertaining private complaints, discussed in detail, and summarised. Second protest petition, held, stands on a similar footing as second complaint. [Samta Naidu v. State of M.P., (2020) 5 SCC 378]

Debt, Financial and Monetary Laws — Debt, Debt Recovery and Relief — Crown Debt/Debt owed to State/Tax arrears: Transfer/Auction-sale of property pursuant to orders of Debts Recovery Tribunal (DRT), inspite of the property being attached by Income Tax Department is valid when there is already a prior charge on the property and the attachment by DRT is prior in time. There is primacy of dues of a secure creditor, over Crown debt, in the absence of a preference given to the Crown debt by statute. [Connectwell Industries (P) Ltd. v. Union of India, (2020) 5 SCC 373]

Decriminalisation of adultery: A critical analysis of the judgment of the Supreme Court in Joseph Shine v. Union of India, (2019) 3 SCC 39, Decriminalisation of adultery, the Indian experience and experiment: how much shine in the Joseph Shine verdict? by Rajesh Kapoor., [(2020) 5 SCC (J-25)]

Education Law — Medical and Dental Colleges — Admission — Allotment of Seats/College/Speciality/Counselling/Wait list — Counselling: In this case, there was common counselling or single online counselling for filling up seats for postgraduate courses leading to MD and MS, Diploma and Diplomate of National Board (DNB). As counselling was in advanced stage, Court declined to issue any directions for present academic session which would disturb entire process. Further, as the authorities were ready for next academic session 2021-2022, permission granted for holding common counselling from academic session 2021-2022. [Alapati Jyotsna v. Union of India, (2020) 5 SCC 320]

Effect of limitation of liability and exclusion of liability clauses: It is sometimes misunderstood that limitation of liability and exclusion of liability clauses simply fall away, under Indian law, in all cases of fundamental breach. This article, therefore, attempts to analyse whether such clauses would fall away in all cases of fundamental breach; and whether the liability of the party in breach would become unlimited, subject to proof of actual damage, in all cases of fundamental breach. Effect of limitation of liability and exclusion of Liability clauses in the event of fundamental Breach of contract by Gaurav Pachnanda.[(2020) 5 SCC (J-1)]

Excise — Concession/Exemption/Incentive/Rebate/Subsidy — Exim Policy of 1997-2002 — Paras 9.9(b) and 9.17(b) — Exemption Noti. No. 8/97 dt. 1-3-1997 as amended by Noti. No. 21/97-CE dt. 11-4-1997 — Circular dt. 22-5-2000: The terms “sale” and “purchase” under the Excise Act, if construed literally, would give a wider scope and also include transfer of possession for valuable consideration under the definition of the term “sale”. Thus, the transfer of manganese ore by TISCO to UFAC (assessee) in this case for the purposes of processing the same and converting it into Silicon Manganese, being for a valuable consideration, held to be “sale” for purposes of Excise Act. Para 9.9(b) of the Exim Policy, the circulars issued by the Board, particularly, the Circular dt. 22-5-2000 and reply to the query of the Customs Authorities by the Development Commissioner, SEEPZ showed that UFAC was entitled to carry out the job-work on behalf of TISCO on payment of duty as provided under exemption notification of 1997. In this case, held, the transaction between UFAC and TISCO satisfied all the three conditions of exemption notification, namely, the goods are produced and manufactured by UFAC, an 100% export oriented unit; they are manufactured wholly from the raw materials produced or manufactured in India; and, thirdly, they have been allowed to be sold in India in accordance with the provisions of Para 9.9(b) of the Exim Policy. Thus, assessee was held to be entitled to avail the benefit. [CCE v. Universal Ferro & Allied Chemicals Ltd., (2020) 5 SCC 332]

Family and Personal Laws — Succession Act, 1925 — Ss. 87, 82 and 88 — Will — Interpretation — Principles: The intention of testator has to be gathered from language of will read as a whole, having regard to nature and grammatical meaning of words and surrounding circumstances. The rule of last intention (contained in S. 88 of Succession Act) is only applicable when there are two bequests in the will which are inconsistent with each other. [M.S. Bhavani v. M.S. Raghu Nandan, (2020) 5 SCC 361]

Hindu Adoptions and Maintenance Act, 1956 — Ss. 6, 7 and 11: The mandatory requirements of a valid adoption are consent of wife and proof of ceremony of actual giving and taking in adoption. In absence of proof of these requirements, mere fact of child being brought up by another couple and their names being entered in child’s school/college record as parents would not be sufficient to prove child’s adoption by them. [M. Vanaja v. M. Sarla Devi, (2020) 5 SCC 307]

Human and Civil Rights — Epidemics and Pandemics — COVID-19 Pandemic — Effect, prevention and medical facilities in prisons: There are greater chances of proliferation of this virus in overcrowded and closed places like prisons. Imminent need to take immediate measures for checking this contagious virus in prisons and for quarantining and providing medical treatment to affected prisoners, emphasized. [Contagion of Covid-19 Virus in Prisons, In re., (2020) 5 SCC 313]

 Income Tax Act, 1961 — S. 43-B(f) (as inserted vide Finance Act, 2001 w.e.f. 1-4-2002) — Validity: The validity of Cl. (f) providing for tax disincentive in deductions claimed by assessee from income tax in lieu of liability accrued under leave encashment scheme but not actually discharged by employer i.e. it making actual payment of liability condition precedent for extending benefit of deductions, affirmed. [Union of India v. Exide Industries Ltd., (2020) 5 SCC 274]

Labour Law — Transfer of Employee/Service — Challenge to transfer order: In this case, letter of appointment categorically stated that services of respondent can be transferred at any location in India. There was grant of interim stay to transfer order by Industrial Court prima facie finding it to be case of victimisation/mala fides without any evidence in support thereof. Hence, impugned order of High Court declining to exercise its writ jurisdiction, held unsustainable. [Godrej & Boyce Mfg. Co. Ltd. v. Rameshwar P. Gawade, (2020) 5 SCC 316]

Motor Vehicles Act, 1988 — Ss. 173 and 166 — Enhancement of compensation: In this case, even though claimant appellants did not file appeal against award of Tribunal before High Court, it was held appropriate to enhance compensation by exercising jurisdiction under Art. 142 of the Constitution in order to do complete justice between parties. [Sangita Arya v. Oriental Insurance Co. Ltd., (2020) 5 SCC 327]

Narcotic Drugs and Psychotropic Substances Act, 1985 — Ss. 50 and 18 — Search and seizure: In this case there was recovery of contraband, weighing 6.3 kg, from bag carried by accused, hence compliance with S. 50 was not required. Hence, conviction of accused under S. 18, confirmed. [Than Kunwar v. State of Haryana, (2020) 5 SCC 260]

Property Tax In New Delhi: Property tax has been one of the main sources of revenue for New Delhi Municipal Council. This article gives you a brief understanding of the levy of property tax in New Delhi. Property Tax In New Delhi — A General Overview by Achal Gupta.[(2020) 5 SCC (J-39)]

Service Law — Judiciary — Seniority — Determination of seniority — Relevant date: The relevant date for determination of seniority is the date from which other candidates in same selection process were appointed. [C. Jayachandran v. State of Kerala, (2020) 5 SCC 230]

Service Law — Public Sector, Statutory Corporations and Local Bodies — Power of State Government to give directions in respect of conditions of service of Statutory Body/Corporation — Scope of — Scheme of applicable statutes: As relevant statutory provisions were not considered in earlier decision of Supreme Court, matter referred to larger Bench. [State of U.P. v. Virendra Kumar, (2020) 5 SCC 209]

Cases ReportedSupreme Court Cases

Civil Procedure Code, 1908 — Or. 21 R. 89 and S. 151 — Auction-sale of property of guarantor in execution of decree: In this case, no opportunity was given to guarantor to repay entire decretal amount due before putting said property to sale. There was allegation of non-compliance with requirements of Or. 21 R. 89 CPC and application for setting aside the sale was also under S. 151 CPC. It was held that the property auctioned was that of guarantor, and even before auction-sale was held, said guarantor had started repaying the due amount in instalments and had repaid the full sum due, soon after auction-sale was confirmed. In such circumstances, without expressing any view on compliance/non-compliance with requirements of Or. 21 R. 89 CPC, the Supreme Court held, High Court had rightly set aside the auction-sale. [Paul v. T. Mohan, (2020) 5 SCC 138]

Contract and Specific Relief — Termination/Discharge of Contract — Termination by Frustration/Impossibility — Grounds of Frustration — Generally — Force majeure events: In case of occurrence of an event which renders performance of contract impossible, by virtue of S. 56, Contract Act, 1872, contract in such a case, held, becomes void and parties are exempted from further performance thereof. However, in terms of S. 32 of Contract Act, parties may instead choose consequences that would flow on happening of an uncertain future event. Further, under S. 65 of Contract Act, a limited mechanism exists to ameliorate harsh consequences of frustration of contract. Furthermore, in order to mitigate the harsh consequences of frustration and to uphold the sanctity of the contract, the parties may choose to mitigate the risk by inserting force majeure clauses, in which case the matter would be governed by the clause in question. [South East Asia Marine Engg. & constructions Ltd. (SEAMEC Ltd.) v. Oil India Ltd., (2020) 5 SCC 164]

Criminal Procedure Code, 1973 — S. 438 — Grant of anticipatory bail: Law clarified regarding (1) When may be granted; (2) Offences in respect of which may be granted [except where there is a statutory bar or restriction]; (3) Duration for which may be granted; (4) Anticipatory bail granted cannot be a blanket protection; (5) Normal conditions; and Restrictive conditions that may be imposed while granting anticipatory bail, depending on facts and circumstances of the case; (6) Requirements of investigating agency under S. 27 of Evidence Act, met by concept of deemed custody when accused is on anticipatory bail; (7) Effect of filing of charge-sheet/issuance of summons in a case where accused is on anticipatory bail; (8) Recourse of investigating agency to have accused on anticipatory bail arrested at any time by order of court under S. 439(2), if circumstances so warrant (it being not always necessary to seek cancellation of the bail therefor); (9) Permissibility of exclusion of right to anticipatory bail by statute. [Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1]

Energy, Power and Electricity — Electricity — Tariff — PPA: PPA is a statutory contract and it can be varied by statutory notifications. Notifications dt. 30-3-1992 and 6-11-1995 under S. 43-A of the Electricity (Supply) Act, 1948, are statutory and binding on the parties. Further, any PPA between a generating company and the purchaser of electricity is subject to such statutory notifications. Parties by agreement cannot override statutory provisions, or such notifications, as far as they relate to matters of tariff. [CLP (India) (P) Ltd. v. Gujarat Urja Vikas Nigam Ltd., (2020) 5 SCC 185]

Environment Law — Monuments and Environment — ‘Sisodia Rani ka Bagh’ monument located on Jaipur-Agra Highway: Directions were issued for protection of wildlife in reserve forest area and prohibition of laser lights, loud music and fireworks in monument. National Green Tribunal (NGT) completely prohibited all activities in ‘Sisodia Rani ka Bagh’ monument. As restricted use of monument was not going to affect wildlife and forest, and in view of the value of developmental projects of monument and surrounding area, order of NGT was modified. The Supreme Court would itself monitor beautification and other developmental projects relating to monument. However, laser lights, loud music and fireworks, completely prohibited. [Deptt. of Archaeology & Museums v. Ashish Gautam, (2020) 5 SCC 112] 

Evidence Act, 1872 — Ss. 65 and 66 — Secondary evidence — When can be admitted: Factual foundational evidence must be adduced showing reasons for not furnishing evidence. Mere admission in evidence and making exhibit of a document not enough as the same has to be proved in accordance with law. [Jagmail Singh v. Karamjit Singh, (2020) 5 SCC 178]

Human and Civil Rights — Humanitarian and Natural Disasters, Epidemics and Pandemics — COVID-19 Pandemic: In this case, there was challenge to Advisory whereby Rs 4500 was fixed as the price for screening and confirming COVID-19 (Coronavirus) by private labs. While considering overall aspects of matter, directions were issued for free of cost testing facility of COVID-19 (Coronavirus) by government or private labs, and tests to be carried out by labs accredited by National Accreditation Board for Testing and Calibration Laboratories (NABL). [Shashank Deo Sudhi v. Union of India, (2020) 5 SCC 132]

Human and Civil Rights — Humanitarian and Natural Disasters, Epidemics and Pandemics — COVID-19 Pandemic: The ambit of directions issued regarding free testing of COVID-19 (Coronavirus) cases by government or private labs in Shashank Deo Sudhi, (2020) 5 SCC 132, clarified. [Shashank Deo Sudhi v. Union of India, (2020) 5 SCC 134]

Penal Code, 1860 — S. 302 or S. 304 or S. 326 [S. 300 Exceptions 1 and 2] and S. 148: In this case, there was assault by accused persons (5 in number), with intention of taking revenge on account of right-of-way dispute, leading to death of one and injuries to others. The blows inflicted by Respondent 1-Accused 5, were with intention to kill deceased. The death of deceased was caused due to blow inflicted by Accused 5, and was homicidal death. The exercise of right of private defence also not made out as accused party were clearly the aggressors. The Supreme Court held that the High Court not correct in converting offence under S. 302 to one under S. 326. However, Accused 5, at relevant time, was deprived of power of self-control by grave and sudden provocation, due to repeated unauthorised entry by complainant party, on fields belonging to accused party. Further, solitary fatal blow on vital part of head, by Accused 5, caused death of deceased. The provocation was not invited by accused party, but was at instance of complainant party. As death of deceased was caused by act of Accused 5, giving one fatal blow on head, which was with intention of causing his death or causing such bodily injury as is likely to cause death, case would be covered by S. 304 Pt. I IPC. [State of Rajasthan v. Mehram, (2020) 5 SCC 143]

Penal Code, 1860 — Ss. 302/34 or S. 324: In this case, conviction of accessory accused (appellant A-3 herein) under Ss. 302/34 held, not sustainable given role ascribed to him by prosecution and failure of prosecution to establish that he shared common intention to murder deceased with main assailant A-1. But, his conviction under S. 324 for having injured PW 1, and sentence thereof to undergo RI for 3 yrs and fine of Rs 500, with default stipulation, stood confirmed. [Chellappa v. State, (2020) 5 SCC 160]

Service Law — Deputation — Deputation allowance — Entitlement to — Commencement of deputation — When envisaged: Deputation envisages assignment of employee of one department/cadre/organisation to another department/cadre/organisation in public interest which normally involves consent of employee. In this case, till 11-9-2009, respondent continued to be under control of his parent organisation i.e. CISF and was also getting his pay and allowances from said authority. Hence, though respondent was sent to NDRF on 18-4 2008, he continued to be member of his Battalion and could not be said to be on deputation. [Union of India v. R. Thiyagarajan, (2020) 5 SCC 201]

Terrorist and Disruptive Activities (Prevention) Act, 1987 — S. 15 — Conviction on basis of confession to police — When permissible: Law summarised regarding when conviction is permissible on basis of confession to police. In this case, there was conviction for conspiracy in respect of offences under TADA Act and Explosive Substances Act on basis of confession of appellant-accused and confession statement of two other co-accused, made before police. Said confession of accused does not met the requirements for reliance upon the same, hence, the same rejected. Furthermore, as per S. 30 of Evidence Act, 1872, if for any reason, a joint trial is not held, confession of co-accused cannot be held to be admissible in evidence against another accused, who would face trial at a later point of time in same case. Since trial of two co-accused was separate, their confession statements are not admissible in evidence and same cannot be taken as evidence against appellant-accused herein. Hence, conviction of appellant was set aside. [Raja v. State of T.N., (2020) 5 SCC 118]

Cases ReportedSupreme Court Cases

Arbitration and Conciliation Act, 1996 — S. 11(6) — Appointment of arbitrator by Court: Furnishing of discharge voucher (by insured to insurer in present case) is not an absolute bar to invocation of the arbitration agreement, when the same is alleged to have been given under economic duress. An application under S. 11(6) is in the form of a pleading which merely seeks an order of the Court, for the appointment of an arbitrator and it cannot be conclusive of the pleas or contentions that the claimant or the party concerned can take in the arbitral proceedings. Therefore, at this stage, the Court which is required to ensure that an arbitrable dispute exists, has to be prima facie convinced about the genuineness or credibility of the plea of coercion; it cannot be too particular about the nature of the plea, which necessarily has to be made and established in the substantive (read: arbitration) proceeding. [Oriental Insurance Co. Ltd. v. Dicitex Furnishing Ltd., (2020) 4 SCC 621]

Arbitration and Conciliation Act, 1996 — Ss. 11(6) and 8 — Arbitration agreement contained in document compulsorily required to be stamped: When an instrument compulsorily required to be stamped, is relied upon as containing the arbitration agreement, the Court is required to consider at the outset, whether the document is properly stamped or not and the Court cannot act upon an arbitration clause in a document if the document is not properly stamped. However, if the deficit stamp duty and penalty is paid the document can be acted upon. [Dharmaratnakara Rai Bahadur Arcot Narainswamy Mudaliar Chattram v. Bhaskar Raju & Bros., (2020) 4 SCC 612]

 Bombay Entertainments Duty Act, 1923 (1 of 1923) — Ss. 3(2), 3(1) and 3(5) — Interpretation and application of S. 3(2) — Inter-relationship between Ss. 3(2), 3(1) and 3(5): Where activities of amusement park not covered under S. 3(2), such park not entitled for rebate of 50% of duty payable under S. 3(2). [State of Maharashtra v. Pan (India) Paryatan Ltd.,(2020) 4 SCC 687]

 Civil Procedure Code, 1908 — Or. 14 R. 1(1), Or. 8 Rr. 1 to 3 and Or. 20 R. 20 — Issues when arise: In this case of suit for partition of family property as per the will of the mother, the ground floor portion of the property was bequeathed to the respondent-plaintiff, the first floor portion was bequeathed to the appellant-defendant and the second floor portion was to be divided equally between the parties. Respondent-plaintiff filed a suit for partition and permanent injunction of the second floor and the terrace rights but appellant-defendant, in the written statement, raised a dispute in respect of common areas on the ground floor also. The Supreme Court held, having invited findings by raising a dispute of the common areas, the appellant-defendant cannot plead that the trial court as well as the appellate court have exceeded scope of the suit, in issuing directions for the common areas. Also, on facts, held, the judgment and final decree for partition, as ordered by the appellate court and directions issued with regard to common areas were in accordance with evidence on record and there was no merit in the appeals so as to interfere with the same. [Sajan Sethi v. Rajan Sethi, (2020) 4 SCC 589]

 Civil Procedure Code, 1908 — Or. 9 R. 13 — Ex parte decree — Setting aside of, subject to deposit of part amount, in the interest of justice: In this case, Respondent 1 filed a suit for permanent injunction and compensation of Rs 1 crore for trespass, nuisance and damages allegedly made by appellant- Defendant 1. Vide ex parte decree dated 7-10-2003, High Court decreed the suit and directed appellant and Respondent 2 to pay a sum of Rs 77,02,500 with interest thereon @ 6% p.a. from the date of filing the suit till the date of payment or realization. The appellant contended that summons of the original suit and the proceedings thereof were never served upon it. The Supreme Court held that though various contentions were raised as to whether the appellant was served or not and entered appearance in the suit, but without going into the merits of the same, an opportunity has to be given to appellant for contesting the suit. Further, considering the nature of the claim and other facts and circumstances and in the interest of justice, and also that appellant showed its bona fides by depositing Rs 60,00,000 in compliance of the Court order and also that the Court had directed the appellant to deposit further sum of Rs 35,00,000, appeal was allowed and suit ordered to be restored. [Aviation Travels (P) Ltd. v. Bhavesha Suresh Goradia, (2020) 4 SCC 680]

Consumer Protection — Services — Banking/Shares/Securities and other Financial Services: Non-submission of deceased insured’s insurance form and premium by collecting Bank to insurance company can be considered as deficiency of service. [Hemiben Ladhabhai Bhanderi v. Saurashtra Gramin Bank, (2020) 4 SCC 671]

Consumer Protection — Services — Insurance — Compensation — Fidelity insurance: In this case, Respondent complainant, a collateral management company, which undertook to store the commodities pledged by the farmers, traders and manufacturers, etc. in availing loan from lending banks and other institutions, stored commodities including urad and mentha oil in their warehouse and deployed security guards hired by it from the security agency, besides its own field staff. Respondent collateral management company, took fidelity guarantee insurance policy from the appellant opposite party, in respect of the pledged commodities stored in warehouses/godowns at several places. The Supreme Court held that the survey report itself indicated the involvement of employees of the respondent Company in removing 601 barrels of mentha oil stored by respondent Company. Further, immediately, after confirmation and 100% sampling, whereby it was disclosed that in all the barrels, mentha oil was substituted with water, a complaint was lodged by respondent complainant before Gadarpur Police Station. Also, sampling was completed only on 12-11-2008 and investigation report came to be submitted to respondent Company on 14-11-2008, and thereafter, claim was made before appellant on 18-11-2008. Thus, there was no delay on the part of respondent in lodging the claim. In this case, order of NCDRC, directing appellant opposite party to pay a sum of Rs 3,46,87,113 to respondent complainant as per the insurance policy with interest was upheld. [Oriental Insurance Co. Ltd. v. National Bulk Handling Corpn. (P) Ltd., (2020) 4 SCC 674]

 Electricity Act, 2003 — Ss. 56(1) and (2) — Disconnection of supply to consumer on account of non-payment of additional demand of electricity charges: S. 56(1) confers a statutory right to the licensee company to disconnect the supply of electricity, if the consumer neglects to pay the electricity dues and this statutory right is subject to the period of limitation of two years provided by S. 56(2). The liability to pay arises on the consumption of electricity and the obligation to pay would arise when the bill is issued by the licensee company, quantifying the charges to be paid. Thus, electricity charges would become “first due” only after the bill is issued to the consumer, even though the liability to pay may arise on the consumption of electricity. S. 56(2) does not preclude the licensee company from raising an additional or supplementary demand after the expiry of the limitation period under S. 56(2) in the case of a mistake or bona fide error, however, it does not empower the licensee company to take recourse to the coercive measure of disconnection of electricity supply, for recovery of the additional demand. [Ajmer Vidyut Vitran Nigam Ltd. v. Rahamatullah Khan, (2020) 4 SCC 650]

Employees’ Compensation Act, 1923 — S. 4 Expln. II and S. 4-A — Deletion of the deeming provision in S. 4 Expln. II (by Act 45 of 2009, w.e.f. 18-1-2010), which had capped the monthly wages of an employee at Rs 4000: The benefit of the amending Act enhancing the quantum of compensation would not apply to accidents that took place prior to the coming into force of the amendment. [K. Sivaraman v. P. Sathishkumar, (2020) 4 SCC 594]

Evidence Act, 1872 — Ss. 35, 74 and 76 — Proof of age: School leaving certificate/transfer certificate, on its own is not sufficient for proving date of birth, in the absence of examination of the official in-charge of school who recorded the date of birth in the school register. Proving of the records of School is necessary. [C. Doddanarayana Reddy v. C. Jayarama Reddy, (2020) 4 SCC 659]

Human and Civil Rights — Right to Information, Confidential Information and Data Protection — Information held by courts and tribunals — Information held by court on judicial side: The requirement under R. 151 of the Gujarat High Court Rules, 1993 that third parties can access information held on judicial side of court, inter alia, relating to pending and decided cases, relevant documents and certified copies, only by filing an affidavit and by stating the reason for which the information is required, is in consonance with scheme of RTI Act and there is no inconsistency between these laws. Such information can be accessed only as per the High Court Rules, and not under RTI Act regime. [Chief Information Commr. v. High Court of Gujarat, (2020) 4 SCC 702]

Income Tax Act, 1961 — S. 153-C — Applicability and Invocation of: Principles clarified regarding essentialities to be complied with by assessing officer and modalities to be followed under different scenarios. [Super Malls (P) Ltd. v. CIT, (2020) 4 SCC 581]

 Negotiable Instruments Act, 1881 — Ss. 138, 143-A and 144 — Expeditious disposal of cheque dishonour cases: The need for comprehensive mechanism for expeditious disposal of cheque dishonour cases, emphasized. Setting up mechanism for online disposal of cheque dishonour cases, directed.  Steps to be taken for securing presence of accused, enumerated. Duty of banks to provide email ID and other details of accused for speedy disposal of cases, emphasized. Legal Services Authority directed to develop mechanism for pre-litigation stage settlements. [Makwana Mangaldas Tulsidas v. State of Gujarat, (2020) 4 SCC 695]

 Oil, Petroleum and Natural Gas — Dealerships, Networks and Supply Contracts — Contract for setting up of City or Local Natural Gas Distribution Networks (CGD Networks): The validity of criterion formulated for determining reasonability of bid for its acceptance after the last date for the submission of bids, as in this case through a Board Note indicating a 2 to 100% range of projected PNG connections on the basis of total number of households, upheld. [Adani Gas Ltd. v. Petroleum & Natural Gas Regulatory Board, (2020) 4 SCC 529]

Petroleum and Natural Gas Regulatory Board Act, 2006 — Ss. 30 and 37: The appeal before APTEL under 2006 Act directed to be transferred to the Supreme Court in the interest of justice. [AG&P LNG MKTG. PTE. Ltd. v. IMC Ltd., (2020) 4 SCC 569]

Rajasthan Pre-emption Act, 1966 (1 of 1966) — Ss. 4, 5(1)(c) and 6 — Right of pre-emption — When accrues, even in cases where the vendee also has such rights: The right of pre-emption accrues on the transfer of any immovable property to the classes of persons mentioned in S. 6, however, the same is subject to S. 5. Further, as a result of S. 5(1)(c), where the vendee also has a right of pre-emption under S. 6, the right of pre-emption will only accrue to the person with a superior right of pre-emption. Further held, where any of the provisions of S. 5 come into operation, the right of pre-emption would not be available. [Suresh Chand v. Suresh Chander, (2020) 4 SCC 643]

Sikkim Land (Requisition and Acquisition) Act, 1977 (1 of 1978) — S. 5(1) [akin to S. 4(1) of the Land Acquisition Act, 1894] and Ss. 3(1), 4(2) and 7(2) — Acquisition of land by State, without adhering to procedure prescribed by law: There cannot be a presumption of acquisition without following the due process as envisaged under Ss. 3(1), 4(2), 5(1) and 7(2) and the burden is on the State to prove that the process as envisaged under the Act is followed and the compensation paid. Further, following the procedure of S. 4(1) of the 1894 Act [akin to S. 5(1) of the said 1977 Act] is mandatory, and unless that notice is given in accordance with the provisions contained therein, the entire acquisition proceeding would be vitiated. Further, entry into the premises based on such non-compliance would result in the entry being unlawful. The law being expropriatory in character, the same is required to be strictly followed. Even though rights in land are no more a fundamental right, still it remains a constitutional right under Art. 300-A of the Constitution, and the provisions of any Act seeking to divest any person from the rights in property have to be strictly followed. [D.B. Basnett v. LAO, (2020) 4 SCC 572]

Cases ReportedSupreme Court Cases

Acquisition, Requisition and Nationalisation — Textile Undertakings (Nationalisation) Act, 1995 — Ss. 4(2) and 4(5): Adjudication by High Court, exercising writ jurisdiction, on the liability of National Textile Corporation Ltd. (NTC) qua debts of textile mill taken over by it, not permissible. [UCO Bank v. National Textile Corpn. Ltd., (2020) 4 SCC 497]

Anomalies in law and justice: This article attempts to explain the anomalies in law and justice—that is, the inconsistencies, contradictions or absurdities in law and justice and identify the solutions for rectification wherever possible. Some Anomalies in Law and Justice by Justice R.V. Raveendran [(2020) 4 SCC (J-49)]

 Constitution of India — Arts. 72 & 161 and 32 — Disposal of mercy petition against death sentence: Principles summarised regarding limited scope of judicial review of disposal of mercy petition against death sentence. Issue of ground of non-supply of documents sought for under RTI Act, held, is beyond the scope of present judicial review. [Vinay Sharma v. Union of India, (2020) 4 SCC 391]

Criminal Procedure Code, 1973 — S. 482 — Quashment re action taken under SARFAESI Act and qua disbursal of sanctioned loan/valuation/auction-sale by creditor bank/auction-purchaser: Sanction of loan, creation of mortgage and the manner in which the sanctioned loan was to be released are all contractual matters between the parties. Further, if any amount was withheld, the complainant in this case was required to take appropriate action at that point in time and avail his remedy but the complainant had proceeded with the transaction, maintained the loan account until the account was classified as NPA. Further, SARFAESI Act is a complete code in itself which provides the procedure to be followed by the secured creditor and also the remedy to the aggrieved parties including the borrower and if there is any discrepancy in the manner of classifying the account of the appellants as NPA or in the manner in which the property was valued or was auctioned, DRT is vested with the power to set aside such auction at the stage after the secured creditor invokes the power under S. 13 of SARFAESI Act. Further, the petitioner after dismissal of the application before the DRT filed the impugned complaint which appeared to be an intimidatory tactic and an afterthought which is an abuse of the process of law. Also, S. 32 of SARFAESI Act provides for the immunity from prosecution since protection is provided thereunder for the action taken in good faith. [K. Virupaksha v. State of Karnataka, (2020) 4 SCC 440]

 Education Law — Employment and Service Matters re Educational Institutions — Appointment/Recruitment — Post of Principal in government polytechnic college — Eligibility criteria: The AICTE [Pay Scales, Service Conditions and Qualifications for the Teachers and Other Academic Staff in Technical Institutions (Diploma)] Regulations, 2010 prescribed “Qualification as above for post of HoD and PhD in Engineering or qualification as above for post of HoD”. The word “or” indicates that PhD in Engineering is optional. [Gelus Ram Sahu v. Surendra Kumar Singh, (2020) 4 SCC 484]

Foreign Trade, Export, Import and Investment — Foreign Trade Policy 2004-2009: In this case, appellant purchaser from 100% export-oriented unit claimed benefit of special Agricultural Produce Scheme in respect of exports made by it. Circular dt. 21-1-2009 was issued to clarify that scheme notified on 7-4-2006 specifically excluded 100% export-oriented units from its applicability. The validity of the said circular was challenged with the contention that Circular dt. 21-1-2009 was contrary to scheme notified on 7-4-2006 which had statutory force and hence, could not be modified or amended by executive instructions. The Supreme Court held that the Circular dt. 21-1-2009 did not modify or amend scheme notified on 7-4-2006 but only clarified that 100% export-oriented units which were not entitled to seek exemption could not avail benefit indirectly through purchasers from them. It was further held, in terms of Cl. 3.8.5 of the Scheme, Government had reserved right in public interest to specify from time to time exports which were not eligible for entitlement, and hence, Circular dt. 21-1-2009 was valid. [Nola Ram Dulichand Dal Mills v. Union of India, (2020) 4 SCC 406]

Income Tax Act, 1961 — Ss. 115-O, 115-Q, 115-QA, 2(22), 2(22)(d) and 2(22)(a) — Buyback of shares — Taxability of: While considering communication by Revenue qua tax liability of assessee Company on purchase of its own shares, as a show-cause notice, as opposed to a final order, directions issued for grant of opportunity to file reply, oral hearing to assessee and for decision of case on merits by authorities. [Cognizant Technology Solutions (India) (P) Ltd. v. CIT, (2020) 4 SCC 430]

Local Government, Municipalities and Panchayats — Town Planning — Layout/Master/Zonal Plan — Modification/Change in the approved layout plan: A modification cannot be struck down when the law permits such change which is in terms of the statute and the plans that have the force of law. Further, as long as the layout plans conform to the development control norms, the court would not substitute its own opinion as to what principle or policy would best serve greater public or private interest. [M.P. Housing & Infrastructure Development Board v. Vijay Bodana, (2020) 4 SCC 521]

Marine Insurance Act, 1963 — Ss. 35 and 36 — Liability of insurer under a marine insurance policy — Discharge of, when there is a breach of warranty by assured: Non-compliance with the Institute Classification Clause (ICC) of the marine insurance policy, dealing with seaworthiness of the vessel in which the cargo is carried, can be considered as a breach of warranty. Further, held, when a warranty is not complied with i.e. there is a breach of warranty, the insurer is discharged from liability from the date of such breach, by virtue of Section 35(3) of the Marine Insurance Act, 1963 and such discharge of liability does not require any express conduct or representation from the insurer. [Rajankumar & Bros. (Impex) v. Oriental Insurance Co. Ltd., (2020) 4 SCC 364]

Motor Vehicles Act, 1988 — Ss. 166 and 168 — Permanent disability — Just compensation — Principles summarized: Principles for determination of just compensation contemplated under MV Act are well settled. Apart from injury, claimant has to be compensated for consequential losses. [Kajal v. Jagdish Chand, (2020) 4 SCC 413]

Penal Code, 1860 — Ss. 302 and 364: In this case of murder of three minor children by accused in disturbed mental state, wife of accused having run away with uncle of victim children, death sentence of accused commuted to life imprisonment for entire life without any remission for 25 yrs. [Manoj Suryavanshi v. State of Chhattisgarh, (2020) 4 SCC 451]

Stamp Act, 1899 — Ss. 35, 36 and Art. 23 Expln. & Art. 48(f) (as amended by Orissa Act 1 of 2003) — Impounding of powers of attorney dt. 21-2-2011 and 4-10-2008 when required to be treated as conveyance for insufficient stamping: Judicial determination of objection regarding necessity of payment of, and sufficiency of stamp duty paid, necessary. In this case, the findings of the Trial court as well as High Court that since power of attorney was a registered document, it was properly stamped without examining as to whether power of attorney was to be stamped as conveyance on account of delivery of possession at time of execution of power of attorney, not proper. The question whether possession was transferred at the time or after execution of power of attorney is question of fact which is required to be decided by court at time of final decision being adjudicated after evidence is led by parties and not merely on basis of recitals in power of attorney. Further held, though such objection is required to be decided at threshold but in case where evidence is required to determine nature of document, it is reasonable to defer that issue to time of final decision in suit. [Z. Engineers Construction (P) Ltd. v. Bipin Bihari Behera, (2020) 4 SCC 358]

U.P. Zamindari Abolition and Land Reforms Act, 1950 (1 of 1951) — S. 157-B — Exchange of agricultural land between a member of a Scheduled Tribe and a person not belonging to a Scheduled Tribe — Impermissibility of: Under S. 157-B, a bhumidhar or asami belonging to the Scheduled Tribe cannot transfer his land to a person not belonging to the Scheduled Tribe. Further, contrasting Ss. 157-B and 157-A, held, the use of the words “or otherwise” emphasises that the land belonging to a Scheduled Tribe cannot be transferred in any manner whatsoever. Thus, the exchange deed, between a member of Scheduled Tribe and a person not belonging to a Scheduled Tribe, held, executed in violation of the provisions of S. 157-B and the transfer was thus void and liable to be set aside. [Commr. (Revenue) v. Akhalaq Hussain, (2020) 4 SCC 507]

Cases ReportedSupreme Court Cases

A tribute to Ashok H. Desai: A tribute to Ashok H. Desai, who was the Attorney General of India from July 1996 to May 1998 and was earlier the Solicitor General of India. Ashok H. Desai — A Man for All Seasons by Pallav Shishodia, [(2020) 4 SCC (J-6)]

A tribute to P.P. Rao: A tribute to P.P. Rao, eminent constitutional law expert and Senior Advocate of the Supreme Court of India. P.P. Rao — Jurist Par Excellence by Sanjeev Johari [(2020) 4 SCC (J-10)]

A tribute to Professor N.R. Madhava Menon: A tribute to Professor NR Madhava Menon, who was an Indian civil servant, lawyer and legal educator, considered by many as the father of modern legal education in India. N.R. Madhava Menon — A Phenomenal Leader in Education by Dipak Misra [2020) 4 SCC (J-1)]

A tribute to Professor N.R. Madhava Menon: A tribute to Professor NR Madhava Menon, who was an Indian civil servant, lawyer and legal educator, considered by many as the father of modern legal education in India. N.R. Madhava Menon — Law Teacher, Social Engineer and Humanist by Justice A.K. Sikri [(2020) 4 SCC (J-3)]

Administrative Law — Administrative Action — Administrative or Executive Function — High Officials Holding/Exercising Discretionary Powers: The power vested in authority must be discharged in accordance with constitutional principles and statutory rules/regulations governing the field regardless of rank/office held by officer(s) concerned. Furthermore, judicial scrutiny of decision does not depend on rank/position of decision-maker. [Nalin Kumar Bhatia v. Union of India, (2020) 4 SCC 78]

Arbitration and Conciliation Act, 1996 — Ss. 2(2), 2(1)(e) & (f), 2(4), (5) & (7), 20, 9, 42 and Pt. I or Pt. II: Juridical or legal seat of arbitration once designated or determined, held, explaining and following five-judge Bench decision in BALCO, (2012) 9 SCC 552, exclusively determines which courts will have jurisdiction over the arbitration, as opposed to the place where whole or part of the cause of action arises. A&C Act, 1996 has accepted the territoriality principle in S. 2(2). Thus, once the seat of arbitration is designated or determined, the same operates as an exclusive jurisdiction clause as a result of which only the courts where the seat is located would have jurisdiction over the arbitration, to the exclusion of all other courts, even courts where part of the cause of action may have arisen. However, held, where it is found on the facts of a particular case that either no “seat” is designated by agreement, or has not been so determined by the Arbitral Tribunal, or the so-called “seat” is only a convenient “venue”, then there may be several courts where a part of the cause of action arises, that may have jurisdiction over the arbitration. Hence, an application under S. 9 of the A&C Act may be preferred before a court in which part of the cause of action arises in a case where parties have not agreed on the “seat” of arbitration, and before such “seat” may have been determined, on the facts of a particular case, by the Arbitral Tribunal under S. 20(2) of the A&C Act. [BGS SGS SOMA JV v. NHPC, (2020) 4 SCC 234]

Arbitration and Conciliation Act, 1996 — Ss. 34, 20 and 42 — Jurisdiction of court to entertain S. 34 application for setting aside an arbitral award: Once the seat of arbitration is designated, the same operates as an exclusive jurisdiction clause as a result of which only the courts where the seat is located would have jurisdiction to the exclusion of all other courts, even court(s) where part of the cause of action may have arisen. [Hindustan Construction Co. Ltd. v. NHPC, (2020) 4 SCC 310]

Civil Procedure Code, 1908 — Or. 41 R. 31 and Ss. 96 and 100 — Appeal: The meaning and scope of appeal, stated. Proper mode of exercising appellate jurisdiction especially by first appellate court, clarified. The compliance with essentialities under Or. 41 R. 31, held, is mandatory. The distinction between appeal under Ss. 96 and 100, reiterated. The order of the High Court deciding first appeal without complying with Or. 41 R. 31, not permissible. [Malluru Mallappa v. Kuruvathappa, (2020) 4 SCC 313]

Civil Procedure Code, 1908 — S. 92 — Leave to institute suit under — Grant of, when there were allegations that public charitable trust was being run as a private family trust and the object of the Trust was being ignored — Leave to institute a suit — When may be granted: Three conditions are required to be satisfied in order to invoke S. 92 and to maintain an action under S. 92 namely: (i) the Trust in question is created for public purposes of a charitable or religious nature; (ii) there is a breach of trust or a direction of court is necessary in the administration of such a Trust; and (iii) the relief claimed is one or other of the reliefs as enumerated in S. 92. [Ashok Kumar Gupta v. Sitalaxmi Sahuwala Medical Trust, (2020) 4 SCC 321]

Companies Act, 2013 — Ss. 241(2), 337 and 339 — “Any persons who were knowingly parties to the carrying on of the business in the manner aforesaid” who can be proceeded against in terms of S. 339(1) — Persons covered thereunder: “Business in the manner aforesaid” in the above expression in S. 339(1), held, means the business of the company whose affairs are alleged to be mismanaged and not to the business of some other company. Thus, freezing of assets of a person not belonging to the company whose affairs are alleged as being mismanaged/fraudulently conducted, held, is impermissible. [Usha Ananthasubramanian v. Union of India, (2020) 4 SCC 122]

Constitution of India — Art. 137 — Curative petition — Nirbhaya Gang Rape case: The Supreme Court in this case held that the curative petition were not within parameters of law laid down in Rupa Ashok Hurra, (2002) 4 SCC 388, hence the petitions were dismissed. Prayers for oral hearing and for stay on execution of death sentence were also rejected. [Pawan Kumar Gupta v. State (NCT Of Delhi), (2020) 4 SCC 54]

Constitution of India — Art. 137 — Review — No error apparent on record: In this case, as there was no error apparent on face of the record calling for review of judgment in Natesan Agencies (Plantations), (2019) 15 SCC 70, review petition was dismissed. [Natesan Agencies (Plantations) v. State, (2020) 4 SCC 160]

Constitution of India — Arts. 370, 356 and 14 — Power of modification of Art. 370 — Scope of, and Manner in which may be done: By Presidential Orders dt. 5-8-2019 and 6-8-2019, Constitution of India was made applicable to State of Jammu and Kashmir in its entirety, like the rest of India. To determine the validity of said Presidential Orders, reference to larger Bench, held, not warranted. However, no view was expressed on the merits of the matter. [Shah Faesal v. Union Of India, (2020) 4 SCC 1]

Court’s Interference with Arbitral Awards: The object of this article is to discuss the scope of interference of court in arbitration proceedings with reference to ONGC Ltd. v. Saw Pipes Ltd., (2003) 5 SCC 705 and Ssangyong Engg. & Construction Co. Ltd. v. NHAI, (2019) 15 SCC 131. Ssangyong: The Demise of Court Interference with Arbitral Awards as Per Saw Pipes by Sunil Gupta [(2020) 4 SCC (J-28)]

Criminal Procedure Code, 1973 — S. 173(8): Hearing of accused by court before direction for further investigation is made, held, is not obligatory. The power of court to direct police to conduct further investigation cannot have any inhibition. There is nothing in S. 173(8) to suggest, that court is obliged to hear accused before any such direction is made. The casting of any such obligation on court would only result in encumbering court with burden of searching for all potential accused to be afforded with opportunity of being heard. As law does not require it, Magistrate cannot be burdened with such obligation. [Satishkumar Nyalchand Shah v. State of Gujarat, (2020) 4 SCC 22]

Criminal Procedure Code, 1973 — Ss. 340 and 195(1)(b): In this case of perjury before Supreme Court, Secretary General was directed to institute proceedings therefor under Ss. 193 and 199 IPC for filing of altered/modified documents before Supreme Court by the petitioner Company. [New Era Fabrics Ltd. v. Bhanumati Keshrichand Jhaveri, (2020) 4 SCC 41]

Employees’ Compensation Act, 1923 — S. 3(1) — Accident arising out of and in course of employment — Principle of notional extension of “course of employment” at both point of entry and exit in time and space — Extent to which may be applied: In this case, deceased aged 21 years driver, having to drive a truck for an approximately 200 km route, on a hot summer day stopped by a canal to fetch water and also to have a bath, unfortunately, slipped into canal and died. The Court held that taking judicial notice of extreme hot weather and manufacturer specification stating non-availability of air conditioning in truck cabin and compulsion for deceased to stay fresh and alert not only to protect truck from damage but also to ensure smooth journey and protect his own life, possible need for a bath or water to cool down engine could be considered as incidental to employment by extension of notional employment theory. Order of High Court were held unsustainable and set aside. Order of Commissioner dt. 12-12-2005 restored and payments in terms of said order directed to be made to appellants within six weeks. [Poonam Devi v. Oriental Insurance Co. Ltd., (2020) 4 SCC 55]

Enforcement of Arbitral Awards: The author in this article emphasis that the judgment in Pam Developments (P) Ltd. v. State of W.B., (2019) 8 SCC 112 underlines the “rule of law” in the “democratic republic” of India. It brings the Indian arbitral process as well as the Indian court system much closer to the desired international standard of fair and equal treatment to all parties in a dispute. It should serve as a great re-assurance to all spectators of foreign investment who have been seeking a “level playing field” in international and even domestic commercial arbitrations in India. Level Playing Field: No Preference to Government in Enforcement of Awards in Democratic India by Manavendra Gupta [(2020) 4 SCC (J-41)]

Essential Commodities and Services — Fixation of Price — Classification — Permissibility: In this case, there was fixation of price for levy sugar zone-wise for crushing years 1984-85 and 1985-86 and parity was claimed on basis of similarly placed sugar factories in same district. The Supreme Court held that merely because there is difference in price in Central Zone and Eastern Zone, appellant cannot claim as a matter of right that its unit should be placed in Eastern Zone instead of Central Zone during relevant years or claim parity with other units only on ground that all units are situated in same District. Besides, price fixation in respective zones was based on exhaustive study by experts and conclusions reached by Central Government in exercise of statutory power, cannot be said to be either discriminatory or unreasonable. Moreover, fact that appellant’s unit was placed in Eastern Zone subsequently was inconsequential since said policy decision was subject to satisfaction of Government by taking into account expert reports and does not constitute discrimination. [Oudh Sugar Mills Ltd. v. Union of India, (2020) 4 SCC 29]

Family and Personal Laws — Hindu Law — Capacity to give in Adoption: The right of adoptee father to give his son for adoption born prior to his adoption, discussed through case law. [Kalindi Damodar Garde v. Manohar Laxman Kulkarni, (2020) 4 SCC 335]

Information Technology Act, 2000 — S. 79 (as it stood prior to its substitution w.e.f. 27-10-2009) — Intermediary (ISP) — Safe harbour principle — Scope of immunity— Criminal liability under general law: The unamended S. 79 is not a bar to prosecution for commission of the offence of defamation under Ss. 499/500 IPC. Immunity available under S. 79 of the IT Act, 2000, prior to its substitution, was limited to the exemption to the intermediary from any liability under IT Act, 2000 and the Rules or Regulations framed under IT Act, 2000, in regard to third-party information or data made available by the intermediary. However, immunity under unamended S. 79 did not extend to exemption from criminal liability under the general law. Thus, held, unamended S. 79, did not protect an intermediary in regard to the offence under Ss. 499/500 IPC. [Google India (P) Ltd. v. Visaka Industries, (2020) 4 SCC 162]

Law of Sedition in India and Freedom of Expression: In this article the constitutional right of freedom of speech and expression has been discussed along with the laws of sedition and also the interplay between the two. Law of Sedition in India and Freedom of Expression by Justice Deepak Gupta [(2020) 4 SCC (J-14)]

Motor Vehicles Act, 1988 — S. 149(2)(a) — Vehicle involved in accident driven by insured owner’s driver not having a valid/genuine licence — Insurer’s liability to pay under the policy concerned in such a case: While hiring a driver the employer is expected to verify if the driver has a driving licence but if the driver produces a licence which on the face of it looks genuine, the employer is not expected to further investigate into the authenticity of the licence unless there is cause to believe otherwise. Further, if the employer finds the driver to be competent to drive the vehicle and has satisfied himself that the driver has a driving licence there would be no breach of S. 149(2)(a)(ii) of the MV Act and the insurance company would be liable under the policy. It would be unreasonable to place such a high onus on the insured to make enquiries with RTOs all over the country to ascertain the veracity of the driving licence. However, if the insurance company is able to prove that the owner/insured was aware or had notice that the licence was fake or invalid and still permitted the person to drive, the insurance company would no longer continue to be liable. [Nirmala Kothari v. United India Insurance Co. Ltd., (2020) 4 SCC 49]

Motor Vehicles Act, 1988 — Ss. 166 and 168 — Compensation — Computation of income — Income from assets — Depletion of net income as a factor: Though a court may be required to account for the depletion in the net income accruing from the assets of the deceased on account of payments for engaging managers, etc. evidence must be adduced to compute the depletion. As no such evidence was adduced in this case, hence, claimants could not claim any benefit thereof. [Malarvizhi v. United India Insurance Co. Ltd., (2020) 4 SCC 228]

Penal Code, 1860 — S. 34: Principle of vicarious/joint liability under the section, explained. How to determine the existence of common intention, also explained. Principles also summarised regarding requirements for applicability of S. 34. [Chhota Ahirwar v. State of M.P., (2020) 4 SCC 126]

Penal Code, 1860 — Ss. 302/149 — Murder in furtherance of common object: In this case, there was conviction of accessory co-accused persons solely relying upon evidence of sole related eyewitness, while conviction of main assailant already stood confirmed. However, evidence/deposition of sole eyewitness was full of material contradictions, omissions and improvements so far as said co-accused (appellants herein) were concerned. The Supreme Court held that the accused were entitled of benefit of doubt. Hence, conviction was reversed. [Parvat Singh v. State of M.P., (2020) 4 SCC 33]

Registration Act, 1908 — Ss. 49 and 17(1)(d): Unregistered lease deeds is not admissible as evidence. Unregistered lease deed, held, did not convey any right to purported lessee. [Food Corpn. of India v. V.K. Traders, (2020) 4 SCC 60]

Service Law — Pension — Entitlement to pension: Right to pension cannot be taken away by mere executive fiat or administrative instruction since pension and gratuity are not mere bounties, or given out of generosity of employer but employee earns these benefits by virtue of his long, continuous faithful and unblemished service. Withholding of 10% pension and full gratuity in terms of Circulars dt. 22-8-1974 and 31-10-1974 and Government Resolution dt. 31-7-1980 on ground of pending criminal proceeding, in absence of any rules or statutory provisions permitting the same, not permissible. [Hira Lal v. State of Bihar, (2020) 4 SCC 346]

Service Law — Recruitment Process — Eligibility criteria/conditions: Change in eligibility conditions after commencement of selection process, permissible. The principles of estoppel and approbation and reprobation are not applicable, in such cases against candidates who had participated in selection process and sought to challenge the same. [Nitesh Kumar Pandey v. State of M.P., (2020) 4 SCC 70]

Service Law — Recruitment Process — Eligibility criteria/conditions — Equivalence of qualifications: In this case, eligibility criteria for recruitment to post of Technician Grade II in U.P. Power Corporation Ltd. stipulated course on Computer Concept (CCC) Certificate or its equivalent computer qualification certificate. In this case, the CCC certificate was issued initially by DOEACC Society and thereafter by NIELIT. Hence it was held, CCC certificate mentioned in OM of Managing Director dt. 5-7-2013 stipulating CCC certificate or equivalent computer qualification, and also in advertisement was a reference only to CCC certificate issued by DOEACC/NIELIT, and none other. “Equivalent computer certificate” thus would mean only certificates which were found equivalent to CCC certificates issued by DOEACC or NIELIT. Besides, candidates who had submitted application in response to advertisement also understood it as such. [Mukul Kumar Tyagi v. State of U.P., (2020) 4 SCC 86]

Transfer of Property Act, 1882 — Ss. 108(j) and 5 — Transfer, sale or assignment of leasehold interest: Neither (1) compulsory acquisition of leasehold by exercise of power under S. 269-UD of Income Tax Act, 1961, nor (2) auction of the property thereafter by Department, held, are a “transfer, sale or assignment” of the leasehold interest, so as to attract said clause in lease deed for payment of unearned increase charges to lessor. [DDA v. Karamdeep Finance & Investment (I) (P) Ltd., (2020) 4 SCC 136]

Cases ReportedSupreme Court Cases

Arbitration and Conciliation Act, 1996 — Ss. 11 and 8 — Arbitrability of disputes in question: Excluded/excepted matters i.e. matters excluded from the purview of arbitration agreement and referable to a named person/authority for adjudication, by consent of parties is non-arbitrable. Decision on excluded/excepted matters, as in present case by such named person/authority qua such excluded/excepted matters, in present case being delay in completion of work and levy of liquidated damages, would be binding. [Mitra Guha Builders (India) Co. v. ONGC, (2020) 3 SCC 222]

Civil Procedure Code, 1908 — S. 149: Power to make up deficiency of court fees should not permitted to be misused to abuse process of court. Plaintiff must file suit in the correct form, seeking proper reliefs, as warrranted by the facts of the case, and value its suit in bona fide manner. [Atma Ram v. Charanjit Singh, (2020) 3 SCC 311]

Colliery Control Order, 1945 — Cls. 3, 3-A, 4, 4-A and 4-B — Price Fixation — Authority of North Eastern Coalfields (NEC), Assam to enhance price for LSS consumers: In this case, Resolution dt. 16-11-1996 passed by the Linking Committee, specifically stipulates that the price to be charged from the appellants was to be decided by NEC, Assam as prevalent at any point of time. In view of this specific treatment of pricing along with reference to Appellant 1 as linked unit, said Resolution has to be construed to mean that treatment of the appellant as a linked unit was for purpose of regular supply of coal. Pricing factor was separated from such deemed linking. It is clear from Agenda Item 23 of the said meeting wherein reference has been made to SSF units and cokery units which had been allocated coal. It was these units to be treated as linked units. Distinction between allocation and linking clearly emerges from the said decision of the Linking Committee. It is a fact that treatment of Appellant 1 as a linked unit was fiction. Such fiction was replaced by reality on basis of specific provision in Resolution (Agenda Item 24) so far as pricing is concerned. As Resolution dealt with “linking” and “pricing” separately, fiction linking could not be extended to actual pricing. [S.K.J. Coke Industries Ltd. v. Coal India Ltd., (2020) 3 SCC 270]

Constitution of India — Art. 137 — Review Petition — Rejection of, in Nirbhaya Gang Rape case: Hearing of petitions in open court declined. Order under review did not suffer from any error apparent warranting its reconsideration, hence, review petitions rejected. [Pawan Kumar Gupta v. State (NCT of Delhi), (2020) 3 SCC 239]

Constitution of India — Art. 137 — Review under — Nirbhaya case (Gang rape in bus, December 16, 2012, Delhi) — Brutal, barbaric gang rape, unnatural sex and assault, leading to death of victim: In this case, there was no error apparent on face of record in appreciation of evidence or findings of judgment under review. None of grounds raised in review petition call for review of judgment. Review petition is not for rehearing of appeal on reappreciation of evidence over and over again. A party is not entitled to seek review of judgment merely for purpose of rehearing of appeal and a fresh decision. Hence, review petition stands dismissed. [Akshay Kumar Singh v. State (NCT of Delhi), (2020) 3 SCC 431]

Constitution of India — Art. 21 — Informant acting as investigating officer: Rights of accused are undoubtedly important, but so are rights of victim. Law has to cater wider variety of situations as appear in society. While interpreting law, higher judiciary considers such exceptions as are called for without disturbing pith and substance and original intention of legislature. Principle of fair trial is constant, ongoing, evolutionary process continually adapting itself to changing circumstance and, therefore, higher courts endeavour to strike right balance while interpreting law. Societal interest mandates that law laid down in Mohan Lal, (2018) 17 SCC 627 cannot be allowed to become springboard seeking acquittal irrespective of all other considerations pursuant to investigating and prosecution when law in that regard was unclear. Applying prospective declaration of law, it is deemed that all actions taken contrary to declaration of law, prior to day of declaration are validated. Hence, all pending criminal prosecutions, trials and appeals prior to law laid down in Mohan Lal case shall continue to be governed by individual facts of case. [Varinder Kumar v. State of H.P., (2020) 3 SCC 321]

Constitution of India — Art. 366(29-A)(d) r/w Arts. 246(4), 286 and 297 — Jurisdiction of State to levy sales tax when the vessel/ship/tug involved is used in the territorial waters of India, which are deemed to be Union Territory: For the purposes of Art. 366(29-A)(d), the taxable event is the transfer of the right to use the goods regardless of when or where the goods are delivered for use. Thus, the deemed sale takes place at the site where the right to use the goods is transferred i.e. it is of no relevance where the goods are delivered under the right to transfer to use them. In this case, the agreement was signed in Mangalore, but the vessel was used in the territorial waters of India. It was held that the situs of the deemed sale was in Mangalore. Thus, the transaction was liable to be taxed by the authorities concerned in the State of Karnataka. [Great Eastern Shipping Co. Ltd. v. State of Karnataka, (2020) 3 SCC 354]

Constitution of India — Arts. 19(1)(a) & (2) — Internet, cyberspace and social networking: Freedom of speech and expression through medium of internet enjoys constitutional protection under Art. 19(1)(a). Any restriction on the same must be in accordance with Art. 19(2), inclusive of the test of proportionality. [Anuradha Bhasin v. Union of India, (2020) 3 SCC 637]

Constitution of India — Sch. VI Paras 2, 4, 5 & 20 — Exclusive jurisdiction of District Council Court to try suits and cases where both parties belong to Scheduled Tribes category: Noti. dt. 7-2-2017 appointed Additional Judge to District Council Court for trial of offences punishable with death, transportation of life or imprisonment of not less than five years. In expression “suits and cases”, “cases” includes trial of criminal case which had occurred in notified autonomous district, so long as victim and complainant are both from Scheduled Tribes. Fact that State is de jure complainant in all criminal cases, would not affect this position. [State of Meghalaya v. Melvin Sohlangpiaw, (2020) 3 SCC 711]

Consumer Protection — Services — Banking/Shares/Securities and other Financial Services — Delay in submission of insurance claim by lending bank qua cover obtained on behalf of borrower, as per terms of loan agreement — Compensation for, when not grantable: In this case in pursuance of the loan agreement, an insurance cover was obtained by the Bank on behalf of the borrower. A fire took place on the premises of the borrower and the hypothecated assets were destroyed, but the insurer not having accepted the claim, a consumer complaint was filed before SCDRC. SCDRC allowed the complaint and the Bank was directed to forward the claim of the insured to the insurer. In appeal, NCDRC found that the claim was submitted by the Bank nearly six-and-a-half years after the incident of the fire and was time-barred, and went on to foist the liability on the Bank. In this case, considering that the only direction of SCDRC was for the Bank to forward the insurance claim to the insurer, which had not been challenged by the borrower and that there had been a one-time settlement of the borrower with the Bank, the order of NCDRC holding the Bank liable to compensate the borrower in respect of the insurance claim, set aside. [SBI v. New India Assurance Co. Ltd., (2020) 3 SCC 258]

Consumer Protection — Services — Banking/Shares/Securities and other Financial Services: Non-replacement/Encashment of lost/stolen or mutilated or defaced Indira Vikas Patras (IVPs) purchased in cash does not amount to deficiency of services. [Supt. of Post Office v. Jambu Kumar Jain, (2020) 3 SCC 764]

Consumer Protection — Services — Insurance — Cause of incident of fire i.e. whether accidental or caused by insured — Determination of: In this case, it was held that the concurrent findings of the forums below, being findings of facts cannot be interfered. The presence of hydrocarbons at the site is not conclusive to infer that fire is caused by insured/use of kerosene, considering the material used in construction of store/premises. Further, whether the fire took place by a short circuit or any other reason, as long as insured is not the person who caused the fire, the Insurance Company cannot escape its liability in terms of the insurance policy. [Canara Bank v. United India Insurance Co. Ltd., (2020) 3 SCC 455]

Criminal Procedure Code, 1973 — S. 389 — Bail during pendency of appeal — Interim relief: Punitive harshness should be minimised and restorative devices to redeem the man, even through community service, meditative drill, etc. should be innovated. [Prahladbhai Jagabhai Patel v. State of Gujarat, (2020) 3 SCC 341]

Criminal Procedure Code, 1973 — S. 482 — Quashment of proceedings — Criminal liability arising out of contract with a company: To establish dishonest intention at time of entering of contract, it is necessary to implead the company, and to make specific allegations against officer(s) of company against whom proceedings have been filed, to either constitute their direct liability or vicarious liability. In absence of all of the above, held, criminal proceedings are not maintainable. [Sushil Sethi v. State of Arunachal Pradesh, (2020) 3 SCC 240]

Criminal Procedure Code, 1973 — S. 482 — Quashment of proceedings: In this case, while civil suit was pending, complaint came to be filed alleging that the agreement produced by appellant in the suit was a false and fabricated document. In view of conclusive opinion of appellate court that the agreement was not a forged document, very substratum of criminal complaint vanishes. Hence it was held that it will only be a complete abuse of process of law to allow appellants to be prosecuted. [Mukul Agrawal v. State of U.P., (2020) 3 SCC 402]

Criminal Procedure Code, 1973 — S. 482 — Quashment proceedings — Material that may be considered by High Court: The evidence produced by the accused in his defence cannot be looked into by the court, except in very exceptional circumstances, at the initial stage of criminal proceedings. The High Court cannot embark upon the appreciation of evidence while considering the petition filed under S. 482 CrPC for quashing criminal proceedings. If a prima facie case is made out disclosing the ingredients of the offence alleged against the accused, the Court cannot quash a criminal proceeding. [Rajeev Kourav v. Baisahab, (2020) 3 SCC 317]

Criminal Trial — Sentence — Death Sentence — Execution of — Nirbhaya Rape case: In this case, as convicts were not proceeding to avail legal remedies within a week as stipulated by High Court, liberty granted to petitioner to obtain fresh date for execution of death warrant. However, clarified that pendency of present SLP would not be impediment for trial court to consider prayer on its own merits. [Union of India v. Mukesh, (2020) 3 SCC 453]

Customs — Valuation — CBEC clarification dt. 28-11-2001 — Duty of customs, where the unclaimed/uncleared goods are sold by tender/auction: In this case, the importer had imported CTV kits and such goods were permitted by the Customs Department to be kept in warehouse for one year in terms of S. 59. The bond period expired but the importer did not clear the imported goods and also did not pay the rent for the warehouse. The imported goods were put for sale through auction under S. 63(2) with a valuation of imported goods at Rs 1,52,04,176 but could not be sold. Ultimately, the goods were sold by tender sale in which the highest bid received was of Rs 41,44,555. The Supreme Court held that this case was not a case of levy of customs duty on the importer as the importer had not sought the release of goods within the permitted period of warehouse. Thus, in view of the CBEC clarificatory Circular dt. 28-11-2001, held, the customs duty has to be paid on the basis of sale proceeds realized from the sale of the goods kept in a warehouse and not on the basis of the customs duty payable at the time of filing the bill of entry or on the date of expiry of permitted period of warehouse. In this case, directions were given to ascertain the customs duty keeping in mind the dispensation indicated in the enabling provisions of the Customs Act, 1962 and Ch. 21 of Central Board of Excise and Customs Manual read with circular dated 20-11-2011 and to adjust the same as per the priority specified in S. 150(2) of the Customs Act, 1962. [Union of India v. Associated Container Terminals Ltd., (2020) 3 SCC 756]

Customs Act, 1962 — S. 130-A r/w S. 129-B: Calling for a statement from the Tribunal by High Court is not mandatory. Considering that S. 130-A(4) opens with the word “if”, held, it is not mandatorily required to call for a statement from the Tribunal in every case, where a reference is made and High Court has a discretion on the facts of each case either to do so or not to do so. [CCE v. Adani Exports Ltd., (2020) 3 SCC 754]

Election — Democracy and General Principles — Criminalisation of politics/Electoral Reform: There is increase in incidents of criminals i.e. persons against whom criminal cases were pending at different stages, entering politics. Directions issued in Public Interest Foundation, (2019) 3 SCC 224, not complied with. Political parties failed to explain why candidates with pending criminal cases have been selected as candidates. Directions issued by exercising powers under Arts. 129 and 142 of Constitution, for compliance with the above directions in Public Interest Foundation case. [Rambabu Singh Thakur v. Sunil Arora, (2020) 3 SCC 733]

Evidence Act, 1872 — Ss. 65-A and 65-B — Electronic records — Admissibility of: In view of Anvar P.V., (2014) 10 SCC 473, pronouncement of Supreme Court in Shafhi Mohammad, (2018) 2 SCC 801, needs reconsideration. With the passage of time, reliance on electronic records during investigation is bound to increase. Law therefore needs to be laid down in such regard with certainty. Therefore, it is appropriate to refer instant matter to larger Bench. [Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 3 SCC 216]

Government Grants, Largesse, Public Property and Public Premises — Affirmative Action Schemes, Pension and Other Schemes — Pension Schemes — Swatantrata Sainik Samman Pension Scheme, 1980 — Paras 3 and 4 — Fixation of cut-off date for grant of SSS Pension to participants of Goa Liberation Movement, Phase II — Validity: Vide G.O. dt. 17-2-2003, under relaxed criteria, Freedom Fighters Pension was granted to participants of Goa Liberation Movement Phase II (1954-1955) who were in receipt of State pension by 1-8-2002. In this case, R-1 was granted State pension on 11-3-2008 w.e.f. 1-12-2007. The evidence indicated that issue of cut-off date was deliberated by GOI and cut-off date was consciously fixed. The Supreme Court held that when benefit is granted in relaxation of Scheme, it is open for Government to put conditions for eligibility. Further held, object of SSSP Scheme, 1980 was to grant Freedom Fighters Central Pension to those who fulfil eligibility which was clearly fulfilled in including Goa Liberation Movement also under the Scheme. Besides, relaxation granted by Order dt. 17-2-2003 was not the object of Government. Scheme dt. 17-2-2003 had intelligible differentia and also nexus with object. When relaxation is granted to limited category, others not covered by Scheme cannot claim violation of any right. Right of equality can be claimed only by those who fulfil eligibilities under the SSSP Scheme, 1980. [Union of India v. Sitakant S. Dubhashi, (2020) 3 SCC 297]

Hindu Marriage Act, 1955 — Ss. 13 and 9 — Divorce — Facts that may be considered — Facts arising subsequent to filing of divorce petition — Second appeal in divorce proceedings: Framing of substantial question of law on basis of criminal complaint filed by wife alleging harassment for dowry, said complaint having been filed subsequent to filing of divorce petition by husband on ground of mental cruelty, not proper. [Mangayakarasi v. M. Yuvaraj, (2020) 3 SCC 786]

Income Tax Act, 1961 — S. 43-B: The deduction of MODVAT credit of excise duty that remains unutilised at the end of the relevant accounting year, not permissible. The unutilised credit in MODVAT scheme cannot be considered as a sum actually paid by the assessee. [Maruti Suzuki (India) Ltd. v. CIT, (2020) 3 SCC 718]

Insolvency and Bankruptcy Code, 2016 — S. 12 (as amended w.e.f. 16-8-2019) — Time-limit for completion of insolvency resolution process — Extension of, in the interest of justice: In this case, Homebuyers’ association filed an application before NCLT seeking clarification as to the manner in which the voting percentage of the allottees (homebuyers) will be reckoned in CoC, which remained pending for considerable time. Further, constant experimentation went about at different level due to lack of clarity on matters crucial to the decision-making process of CoC and also in view of the recent legislative changes, the scope of resolution plan stood expanded. Further, there was unanimity between all the stakeholders that liquidation of JIL must be eschewed. In exercise of powers under Art. 142 of the Constitution, the Supreme Court directed that the 90 days’ extended period [as provided under amended S. 12(3) IBC] be reckoned from the date of the present order instead of the date of commencement of the Insolvency and Bankruptcy Code (Amendment) Act, 2019. [Jaiprakash Associates Ltd. v. IDBI Bank Ltd., (2020) 3 SCC 328]

Labour Law — Dismissal — Interference by Labour Court/Tribunal/Judicial review/validity — Interference with concurrent findings of fact — Scope: Setting aside of dismissal order by Division Bench of High Court relying upon circular issued subsequently, not proper. [A.P. SRTC v. N. Danaiah, (2020) 3 SCC 267]

Land Acquisition Act, 1894 — Ss. 54, 23, 28 and 34 — Delay in filing appeal: Appellant is not entitled to interest for period of delay in filing appeal. The fact that at time of condoning of delay while admitting delayed appeal, no condition was imposed is irrelevant. [Nimna Dudhna Project v. State of Maharashtra, (2020) 3 SCC 255]

Limitation Act, 1963 — Arts. 54 and 113 — Applicability of Art. 54 or Art. 113 — Agreement to sell with fixed date of performance, entered into prior to acquisition proceedings in respect of suit property: In this case agreement to sell provided for date of performance (and which was later extended), thus attracting first limb of Art. 54 which provides that time from which period begins to run is from “the date fixed for performance”, ruling out applicability of second limb of Art. 54 which provides “…if no [date of performance] is fixed, when the plaintiff has notice that performance is refused”. Plaintiff was all along ready and willing to perform its part of the contract, and even obtained quashment of the acquisition proceedings. Thus, held, Art. 113 of the Limitation Act would apply and the right to sue accrued when subsequent to the quashment of the acquisition proceedings, the respondent-plaintiff served a notice upon the appellant-defendants to execute the sale deed and the defendants refused to execute the sale deed. As suit for specific performance was filed within three years thereof, said suit was correctly held by High Court to be within time. [Vundavalli Ratna Manikyam v. V.P.P.R.N. Prasada Rao, (2020) 3 SCC 289]

Limitation Act, 1963 — S. 27 & Arts. 65 and 64 — Acquisition of ownership by adverse possession — Nature of rights acquired by adverse possessor: Use of adverse possession as a sword by plaintiff is permissible in view of three-Judge Bench decision in Ravinder Kaur Grewal, (2019) 8 SCC 729. Person claiming acquisition of title by adverse possession can now file a suit for declaration of title and possession, based on his adverse possession. [Narendra Kumar Tripathi v. Karuna Auddy, (2020) 3 SCC 220]

Penal Code, 1860 — S. 493 — Cohabitation caused by man deceitfully inducing a belief of lawful marriage — Ingredients of offence whether present — Determination of: In this case, on 21-7-2013, ring ceremony was performed and date of marriage between the appellant and victim was scheduled for 19-11-2013. On 16-8-2013 appellant established physical relationship with victim misleading her that, now since the marriage is finalised and only ceremony of “pheras” remains to be performed. The Supreme Court held that to constitute an offence under S. 493 IPC, the allegations in FIR must demonstrate that appellant had practised deception on the victim causing a false belief of existence of lawful marriage and which led her to cohabit with him. Insofar as offence under S. 493 IPC was concerned, since FIR does not disclose the commission of any offence under the said section and thus continuance of criminal prosecution under S. 493 IPC would amount to abuse of process of the court. However, insofar as offence against appellants under Ss. 3/4, Dowry Prohibition Act was concerned, since the allegations disclose the commission of cognizable offence in the FIR, it was not a fit case to exercise power under S. 482 CrPC. Charge-sheet under S. 493 IPC was quashed. However, in respect of charge-sheet under S. 3 r/w S. 4, Dowry Prohibition Act, the appeal stood dismissed. [Arun Singh v. State of U.P., (2020) 3 SCC 736]

Penal Code, 1860 — Ss. 217 and 221: In this case, intentional disobeying of directions of law and intentional allowing accused persons to escape from place of occurrence was not proved by prosecution against appellant-accused police officer. Hence, reversal by High Court of his acquittal by trial court, thereby, convicting him under Ss. 217 and 221, set aside on consideration of evidence adduced by prosecution and acquittal of appellant, restored. [V. Rajaram v. State, (2020) 3 SCC 200]

Penal Code, 1860 — Ss. 302/34 and 201/34: In this case of death by strangulation body was recovered from well. The circumstances which were relied upon by prosecution to prove guilt of accused, were not complete. The circumstances were not leading to conclusion, that in all human probability, murder must have been committed by accused. Hence, conviction of accused, was reversed. [Mohd. Younus Ali Tarafdar v. State of W.B., (2020) 3 SCC 747]

Penal Code, 1860 — Ss. 376(1) and 450 — Alleged rape of married lady after house trespass — Conviction of accused solely relying upon deposition of prosecutrix — Sustainability: In this case, material contradictions were present in deposition of prosecutrix. Further, neither any independent witness nor even medical evidence supported prosecution case. FSL report also not supported prosecution case. Variation in prosecutrix’s version about giving complaint, present. Prosecutrix failed to pass tests of “sterling witness”. Delay in lodging FIR, also present. Presence of enmity/dispute between both parties with respect to land, evident from records. In absence of any other supporting evidence, it was held that accused was entitled to benefit of doubt, hence, conviction was reversed. [Santosh Prasad v. State of Bihar, (2020) 3 SCC 443]

Penal Code, 1860 — Ss. 406, 420, 465, 467, 468, 471 and 114 — Cheating and forgery — Criminal proceedings for — When not sustainable: When issue as to genuineness of documents, forgery of which was the basis of the criminal proceedings, was pending consideration in civil suit, FIR ought not to have been allowed to continue in this case as it would prejudice the interest of parties and the stand taken by them in the civil suit. Rajeshbhai Muljibhai Patel v. State of Gujarat, (2020) 3 SCC 794]

Rent Control and Eviction — Arrears of Rent/Default/Tender of Rent/Striking off Defence — Arrears of rent: Disconnection of electricity by lessor for default in arrears of rent, maintenance and electricity charges, permissible. [Infinity Infotech Parks Ltd. v. Shiva Jute Mills (P) Ltd., (2020) 3 SCC 262]

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 — S. 18: The waiver of pre-deposit condition for filing an appeal before DRAT is not permissible, even when the auction-sale is challenged by the guarantor and not the primary borrower. A guarantor or a mortgagor, who has mortgaged its property to secure the repayment of the loan, held, stand on the same footing as the borrower and if guarantor/mortgagor other than the primary borrower wants to file an appeal, he must comply with the terms of S. 18. Union Bank of India v. Rajat Infrastructure (P) Ltd., (2020) 3 SCC 770]

Service Law — Age — Date of birth: Prayer for change in date of birth at fag end of career is not permissible. Bharat Coking Coal Ltd. v. Shyam Kishore Singh, (2020) 3 SCC 411]

Service Law — Age — Date of birth: Prayer for change in date of birth at fag end of career is not permissible. Kirloskar Bros. Ltd. v. Laxman, (2020) 3 SCC 419]

Service Law — Age — Date of birth: Prayer for change in date of birth at fag end of career is not permissible. Eastern Coalfields Ltd. v. Ram Samugh Yadav, (2020) 3 SCC 421]

Service Law — Appointment — Eligibility conditions/criteria: Non-appointment as candidates in question (contempt petitioners in this case) did not meet eligibility criteria, or did not take part in selection process, or did not opt for the specific vacancies concerned, held, proper and could not amount to contempt of orders of Court directing State to fill vacancies concerned in accordance with law. [Sanjai Kumar v. Prabhat Kumar, (2020) 3 SCC 184]

Service Law — Departmental Enquiry — Judicial review/Validity — Interference with findings — Scope: Power of judicial review conferred on constitutional court or Tribunal is not that of an appellate authority but is confined only to decision-making process. Only when finding recorded by disciplinary authority is not supported by evidence or is unreasonably arrived at, writ court can interfere with finding of disciplinary authority. Parameters when High Court shall not interfere in disciplinary proceedings stated. [State of Karnataka v. N. Gangaraj, (2020) 3 SCC 423]

Service Law — Promotion — MACP Scheme: In terms of Circular dt. 12-9-2012 issued by Ministry of Railways benefit under MACP scheme granted to employees who had qualified and were appointed under promotion quota after clearing LDCE. Hence it was held that enquiry in respect of appointments of respondents to post of ECRC was required in terms of Circular dt. 12-9-2012 as well as Cl. 129 of Indian Railway Establishment Manual, Vol. 1 dealing with filling up posts of ECRCs. Since Tribunal as well as High Court had failed to consider said issue, matter remanded to Tribunal for consideration afresh. [Union of India v. Rosamma Benny, (2020) 3 SCC 407]

Service Law — Resignation: Resignation cannot be deemed as “voluntary retirement” on completion of qualifying service for purposes of pensionary benefits. Resignation is different from “voluntary retirement” and applicable legal consequences are distinct. “Resignation” cannot be substituted for “voluntary retirement” based on employee’s tenure. [BSES Yamuna Power Ltd. v. Ghanshyam Chand Sharma, (2020) 3 SCC 346]

Service Law — Seniority — Determination of seniority — Deputationist — Absorption in deputee department: In this case, latter part of OM dt. 29-5-1986 envisaged that seniority would not be granted where transfer is “not strictly in public interest”. R-1 absorbed at his own insistence consequent to repeated representations despite departmental communication wanting R-1 to go back to his parent cadre. Hence the Supreme Court held, such transfer by absorption can hardly be stated to be “strictly in public interest”, much less in public interest. Further held, where conditions for absorption categorically stated that absorption would be “deemed to be new recruitment” and previous service would be counted for all purposes “except his/her seniority in cadre” and R-1 having accepted it without demur, seniority list prepared as a sequitur thereto was valid. Besides, this was not a case of transfer but of deputation and thus, principle of person moving to another cadre would squarely apply and such deputee would also be governed by terms and conditions of absorption. The High Court erred in relying on OMs dt. 29-5-1986 and 27-3-2001 in terms of which period of deputation was to be counted for seniority purposes ignoring latter part of OM dt. 29-5-1986. However, considering that R-1 had earned promotion in meantime and demoting him at this stage would be rather harsh, seniority list directed to be maintained by creating ex cadre/supernumerary post. [Govinda Chandra Tiria v. Sibaji Charan Panda, (2020) 3 SCC 803]

Service Law — Termination of Service — Termination order — Consequential termination order — Operation of: In this case, termination order of appellant being consequential to reversion order reverting senior to post of appellant, held, did not operate independently of said reversion order. Said reversion order having been stayed by Court, such stay would automatically result in stay of consequential termination order of appellant. Dismissal of independent writ petition of appellant challenging the termination order, thus held, was inconsequential. Rana Pratap Singh v. Vittiya Evam Lekha Adhikari,(2020) 3 SCC 478]

Service Law — Transfer of Employee/Service — Generally — Transfer: Employee, held, cannot claim a posting as of right to a place of his choice. [Union of India v. Deepak Niranjan Nath Pandit, (2020) 3 SCC 404]

Specific Relief Act, 1963 — S. 16(c) — Decree for specific performance — Readiness and willingness of plaintiff to perform his part of the contract — Essentialities to be considered: Mere plea that plaintiff was ready to pay consideration, without any material to substantiate this plea, cannot be accepted. It is not necessary for plaintiff to produce ready money to establish its readiness and willingness to pay the consideration, but it is mandatory on his part to prove that he had the means to generate consideration amount within the time-frame contemplated in the contract. [C.S. Venkatesh v. A.S.C. Murthy, (2020) 3 SCC 280]

Specific Relief Act, 1963 — S. 38: In this case, there was bare suit for injunction against trespass and for peaceful enjoyment of property by plaintiff whose possession was not disputed. The Supreme Court held that the questions of title and ownership are not precluded from consideration. Each case will have to be examined on its own merits keeping in view the nature of the pleading put forth before the trial court and the understanding of the case with which the parties have gone to trial. [Jose v. Johnson, (2020) 3 SCC 780]

Taxation — Concession/Exemption/Incentive/Rebate/Subsidy — Exemption — Possible scope of: Future levies i.e. levies imposed after the exemption notification comes into existence, not to be presumed to be within the contemplation of Government when issuing exemption notification i.e. Government cannot be presumed to have projected its mind into the future and granted exemption in respect of taxes which may be levied in the future. [Unicorn Industries v. Union of India, (2020) 3 SCC 492]

Telecommunications Laws — Licence Fees — National Telecom Policy, 1999 Regime — Licence agreement between Government of India and telecom service providers — Bindingness of: Gross revenue/Adjusted gross revenue, as defined under Cl. 19 of licence agreement between Government of India and telecom service providers under National Telecom Policy, 1999 Regime, valid. Contra proferentem rule of construction is not applicable, when there is no ambiguity. Doctrine of unconscionable bargaining is not applicable to commercial contracts. The jurisdiction of TDSAT does not extend to adjudication of validity of the terms and conditions incorporated in the licence of a service provider. [Union of India v. Assn. of Unified Telecom Service Providers of India, (2020) 3 SCC 525]

Transfer of Property Act, 1882 — S. 108 — Unauthorised Occupant/Trespasser: In this case there was reduction of damages/compensation for unauthorised occupation by lessee, as awarded by trial court, in the interest of justice, considering that the lessee was a Consumer Cooperative Wholesale Store which had already vacated the leased premises and would be put in a financially precarious position owing to the burden imposed. [Periyar District Consumer Coop. Wholesale Stores Ltd. v. B. Balagopal, (2020) 3 SCC 775]

Cases ReportedSupreme Court Cases

Arbitration and Conciliation Act, 1996 — S. 11(6) — Petition for appointment of arbitrator under S. 11(6) — Non-maintainability of, for lack of subsisting or existing arbitration agreement: In this case, parties to the agreement containing arbitration clause, signed an agreement for revision of rates, which inter alia provided that no claims will be raised by contractor on any of the pending/settled claims/other claims resulting out of the correspondences made and there will be no arbitration for the settlement of claims. The Supreme Court held that the parties consciously and with full understanding executed Amendment of Agreement (AoA) whereby the contractor gave up all his claims and consented to the new arrangement specified in AoA including that there will be no arbitration for settlement of any claims by contractor in future. Thus, having chosen to adopt that path, it was not open to contractor to now take recourse to arbitration process or to resurrect the claim which has been resolved in terms of amended agreement, after availing of steep revision of rates being condition precedent. [WAPCOS Ltd. v. Salma Dam Joint Venture, (2020) 3 SCC 169]

Constitution of India — Art. 226 — Habeas corpus petition — Custody of child: The welfare of the child is the paramount consideration. Child has human right to have love and affection of both parents. Importance of, visitation rights and contact rights of parent not given child’s custody, explained. Court must clearly define nature, manner and specifics of visitation and contact rights of such parent. [Yashita Sahu v. State of Rajasthan, (2020) 3 SCC 67]

Constitution of India — Art. 226 — Nature of right enforceable — Necessity of accrued right, or unlawful denial of right: Person disentitling themselves due to their own omission, default or failure to comply with eligibility requirements, held, not entitled to any relief. [Karnataka State Seeds Development Corpn. Ltd. v. H.L. Kaveri, (2020) 3 SCC 108]

Constitution of India — Art. 311(2) second proviso cl. (b) — Dispensation with inquiry by invocation of, on ground that it is not reasonably practicable to hold such inquiry: It is necessary to record reason(s) for dispensation with inquiry by invocation of Art. 311(2) second proviso cl. (b), on ground that it is not reasonably practicable to hold such inquiry therefore. In case of failure to record such reason(s) while invoking Art. 311(2) second proviso cl. (b), remand of matter for disposal afresh, with liberty to invoke powers under Art. 311(2) second proviso cl. (b), if required, at appropriate stage and to pass reasoned order after following prescribed procedure, held, permissible. [Hari Niwas Gupta v. State of Bihar, (2020) 3 SCC 153]

Constitution of India — Arts. 137 and 145(3) — Review petition raising question(s) of law requiring determination by a larger Bench: Court can refer question(s) of law to a larger Bench in a review petition. [Kantaru Rajeevaru (Right to Religion, In re-9 J.) v. Indian Young Lawyers Assn., (2020) 3 SCC 52]

Constitution of India — Arts. 16 (4) and 16(4-A) — Nature of: Arts. 16 (4) and 16(4-A) are enabling provisions. Thus, neither is there any duty on the State to provide reservation in appointment nor promotion to public posts, nor is there any fundamental right to claim reservation in matters of appointment or promotion to public posts, for SC and ST candidates or anyone else. Providing reservation in appointment or promotion to public posts is discretionary on part of State, depending upon its subjective satisfaction regarding adequacy of representation of persons in services under State. Satisfaction must be based on some material and is subject to judicial scrutiny but Court cannot issue mandamus directing State to provide reservation in appointment or promotion. The pre-requisite for State’s decision to provide reservation in promotion is collection of quantifiable data relating to inadequacy of representation so as to justify its decision before Court if challenged but there is no such pre-requisite to collect quantifiable data relating to adequacy of representation, if State decides not to provide reservation as it is not bound to provide reservation. [Mukesh Kumar v. State of Uttarakhand, (2020) 3 SCC 1]

Contract and Specific Relief — Remedies/Relief — Remedies for Breach of Contract — Damages — Stipulated Damages, Penalty Clauses and Earnest money/Security deposits: In this case, an agreement was entered into between respondent, Central Warehousing Corporation and appellant for a period of two years for carrying out the work of handling and transportation at Inland Clearance Depot (ICD), Varanasi but respondent Corporation terminated contract due to appellant’s poor performance. Respondent Corporation justified forfeiture of security deposit of appellant on two counts: firstly, in view of the heavy claim raised by an exporter whose containers remained missing for a long time and secondly, on account of bank guarantee in the sum of rupees ten lakhs furnished by respondent Corporation before court for release of container. The Supreme Court held that the appellant was given a contract to assist in smooth running of international business of import and export and to have the time management on top priority, however, failure to transport a container to Port at Navi Mumbai resulted in missing of export schedule. While taking into consideration failure of appellant to deliver container and the time taken in recovery of container and expenditure incurred by respondent Corporation, held, the detention of the equipments could not be said to be arbitrary or beyond the terms of the agreement. Hence, the counterclaims towards refund of security deposit and towards illegal detention of forklift, held, to be rightly decided against the appellant. [Vijay Trading & Transport Co. v. Central Warehousing Corpn., (2020) 3 SCC 147]

Criminal Law — Criminal Procedure Code, 1973 — S. 300 — Double jeopardy — Applicability of principle — Subsequent proceedings when barred: If the substratum of the two proceedings/FIRs is common, the mere addition of charge(s) under different/additional sections in the subsequent FIR, held, cannot be considered as different ingredients to justify the latter FIR as being based on different materials, allegations and grounds. [Prem Chand Singh v. State of U.P.,(2020) 3 SCC 54]

Criminal Procedure Code, 1973 — S. 394(2) — Continuance of criminal appeal after death of appellant-accused — Appeal arising from composite sentence of imprisonment as well as fine: Such appeal on death of appellant-accused must be treated as an appeal against sentence of fine and therefore must not abate with regard to that sentence of fine as provided under S. 394(2) CrPC. Resultantly, present appeal before High Court being against sentence of fine was required to be heard against that sentence despite death of appellant-accused. [Ramesan v. State of Kerala, (2020) 3 SCC 45]

Environment Law — Water/River/Coastal Pollution — Coastal Areas/Wetlands/Coastal Regulation Zone Notifications — CRZ Notification of 1991 — Nediyathuruthu and Vettila Thuruthu, backwater islands of Kerala — Inclusion of Nediyathuruthu Island within CRZ, applicability of CRZ Notification of 1991, prohibition of construction and removal of encroachment — Judgment rendered in Vaamika Island, (2013) 8 SCC 760, inter alia qua Vettila Thuruthu Island — Applicability of, to project proponent in respect of Nediyathuruthu Island (i.e. appellant known as “Kapico”): In this case, the High Court, in the impugned judgment, compartmentalised the issues arising for consideration into 2 parts, the first dealing with issues in common for Vettila Thuruthu Island and Nediyathuruthu Island and the next dealing with issues peculiar to each of them. The Supreme Court held that the decision in Vaamika Island, (2013) 8 SCC 760 was rendered at the stage of special leave petitions and though the Court refused leave, it went on to affirm the findings of High Court, recording detailed reasons therefore. Further, the appellants cannot escape the findings recorded in the said case and once it is found that the main issues arose in common for both the islands and dealt with in common by High Court, had received a seal of approval from Supreme Court by a reasoned order. Further, there is no scope for revisiting the same on the basis of certain minor ancillary issues not specifically dealt with, in the judgment. Thus, appeals were dismissed in light of the findings: (i) that the substantial issues that arose in common for both the islands have already been answered in Vaamika Island, (2013) 8 SCC 760, and (ii) that the distinguishing features sought to be projected, were not so material as to take a different view than the one taken therein. [Kapico Kerala Resorts (P) Ltd. v. State of Kerala, (2020) 3 SCC 18]

Labour Law — Termination of Service — Termination order — Validity — Non-receipt of termination order: Once termination order is issued and sent out to employee concerned, it must be held to have been communicated to him, no matter when he actually received it. Hence, appellant not entitled to dispute the termination order as not real or bona fide merely on the ground that he had not received it. [Rajneesh Khajuria v. Wockhardt Ltd., (2020) 3 SCC 86]

Motor Vehicles Act, 1988 — Ss. 166, 168 and 128 & 194-C — Compensation — Contributory negligence of victim — Requirements for invocation of principle of — Explained: In this case, deceased pillion rider riding on a motorcycle with two others (“tripling”) when hit by a car from behind, such pillion riding above the permissible limit not having causal connection with injury or accident. The Supreme Court held that the fact that deceased was riding pillion on a motorcycle along with driver and another beyond the permissible limit, may not, by itself, without anything more, make him guilty of contributory negligence, unless it is established that it contributed either to accident or to impact of accident upon victim. [Mohd. Siddique v. National Insurance Co. Ltd., (2020) 3 SCC 57]

Penal Code, 1860 — Ss. 467 and 468 — Forgery for cheating: In this case, signature was forged by accused postman in delivery slip of registry, to steal envelope containing valuable security, which came for delivery at home. Evidence of handwriting experts was corroborated by evidence of person whose signature was forged. There was absence of any explanation by accused postman, raising presumption against him, as he came for delivery of aforesaid envelope and was the only person having knowledge of the same. Hence, conviction of accused under Ss. 467 and 468, confirmed. [Padum Kumar v. State of U.P., (2020) 3 SCC 35]

Penal Code, 1860 — Ss. 86, 302 and 304 — Drunkenness when a defence or mitigating factor — Act(s) committed in state of voluntary drunkenness or intoxication: So far as knowledge is concerned, in cases of voluntary drunkenness, knowledge is to be presumed in the same manner as if there was no drunkenness. So far as intention is concerned, it must be gathered from the attending general circumstances of the case paying due regard to the degree of intoxication. Was the man beside his mind altogether for the time being? If so, it would not be possible to fix him with the requisite intention but if he had not gone so deep in drinking, and from the facts it could be found that he knew what he was about, the rule to be applied is that a man is presumed to intend the natural consequences of his act or acts. [Paul v. State of Kerala, (2020) 3 SCC 115]

Protection of Women from Domestic Violence Act, 2005 — S. 27(1)(a) — Jurisdiction of courts: A plain reading of S. 27 makes it clear that petition under DV Act can be filed in a court where “person aggrieved” permanently or temporarily resides or carries on business or is employed. In this case, respondent was residing with her parents within territorial limits of Metropolitan Magistrate Court, Bengaluru. Thus, in view of S. 27(1)(a), Metropolitan Magistrate Court, Bengaluru has jurisdiction to entertain complaint and take cognizance of offence. [Shyamlal Devda v. Parimala, (2020) 3 SCC 14]

Service Law — Appointment — Non-appointment/Denial of appointment/Right to appointment — Denial of appointment — Relief: In this case, non-grant of salary for period when there was no appointment as respondent had thus not worked, on principle of “no work no pay”was held, proper. Furthermore, held, consequential benefits in the form of post-retirement benefits could also not have been computed based on period for which there was no appointment. [State of U.P. v. Ali Hussain Ansari, (2020) 3 SCC 99]

Service Law — Pay — Pay scale, fixation and revision — Pay fixation: In this case, there was claim to grant of Selection Grade and Special Grade Scales of pay in bracket of Rs 5000- 8000 and Rs 5500-9000 respectively in terms of GOMs No. 162 dt. 13-4-1998 on grounds of parity by appellant drivers of State Government. Appellants were found not entitled to Selection Grade and Special Grade pay scales as claimed, hence held, appellants cannot claim such relief on grounds of parity. It is well settled that person cannot invoke Art. 14 of the Constitution to claim benefit on grounds of parity if he is not entitled to such benefit. [P. Singaravelan v. Collector, Tiruppur, (2020) 3 SCC 133]

Service Law — Suspension — Non-entitlement to salary for period of suspension: In this case, appellant was suspended on 29-7-2003 and reinstated on 10-9-2012. The substitution of punishment of dismissal by lesser punishment does not result in exoneration of appellant of charges framed against him. Further held, it is for disciplinary authority to decide how suspension period is to be treated. [Om Pal Singh v. Sarva U.P. Gramin Bank, (2020) 3 SCC 103]

Cases ReportedSupreme Court Cases

Constitution of India — Arts. 25 and 26 — Religious practices — Funeral and death ceremonies as per Zoroastrian/Parsi religion: In this case, petitioner permitted, on compassionate grounds, to attend funeral prayers and death ceremonies of parents inside prayer hall of Bungli (Bungalow) of the Towers of Silence Complex at Valsad, as per memorandum of agreement between petitioner and respondents. This met immediate requirement of petitioner and her sisters. Others rights to be adjudicated at a later stage. [Goolrokh M. Gupta v. Burjor Pardiwala, (2020) 2 SCC 705]

Civil Procedure Code, 1908 — Or. 8 R. 1 — Power to condone delay in filing written statements beyond the prescribed period of 90 days qua non-commercial suits — Continuance of: The amendment to Or. 8 R. 1 CPC by the Commercial Courts Act, 2015 i.e. providing for mandatory nature of the timeline prescribed for filing of written statement and lack of discretion with courts to condone any delay, is not applicable to non-commercial suits. Post coming into force of the Commercial Courts Act, there are two regimes of civil procedure: whereas commercial disputes [as defined under S. 2(c) of the Commercial Courts Act] are governed by CPC as amended by S. 16 of the said Act, all other non-commercial disputes fall within the ambit of the unamended (or original) provisions of CPC. Further, as regards the timeline for filing of written statement in a non-commercial dispute, held, the unamended Or. 8 R. 1 CPC continues to be directory and does not do away with the inherent discretion of courts to condone certain delays. [Desh Raj v. Balkishan, (2020) 2 SCC 708]

Army Rules, 1954 — Rr. 180, 179, 182 and 22 — Procedure for enquiry where character of person subject to Act is involved: Proceedings of court of inquiry are in nature of fact-finding conducted at pre-investigation stage and accused is entitled to full opportunity to participate in proceedings. Further held, final order is on basis of trial by court martial and hence, irregularities at earlier stages cannot be basis for setting aside order passed by court martial. Where ground for non-compliance with R. 180 is raised by accused during framing of charge or during recording of summary of evidence, authorities have to rectify defect as compliance with procedure prescribed in R. 180 is obligatory. [Union of India v. Virendra Kumar, (2020) 2 SCC 714]

Service Law — Reinstatement/Back Wages/Arrears — Reinstatement without back wages — Removal for failure to join transferred place of posting: In this case, petitioner approached CAT after three years of order of removal and approached Supreme Court under Art. 32 of the Constitution after almost 9 yrs of accrual of cause of action. The Supreme Court held, considering that petitioner had directly approached Supreme Court under Art. 32 of the Constitution, it would not be appropriate to examine correctness of order of removal. However, considering that order of removal constitutes harsh disciplinary measure, in peculiar circumstances of case, in interest of justice order of Central Government to treat period of absence as “dies non” modified, and though petitioner held not entitled to arrears of salary for period of absence, his salary directed to be fixed by granting him notional increments as and when accrued. Since petitioner had failed to join his place of posting, nor did he approach Court at relevant time or even after his removal contemporarily conceding benefit of arrears of salary, seniority, continuity, etc. would not be fair. [Mangilal Kajodia v. Union of India, (2020) 2 SCC 723]

Service Law — Appointment — Compassionate appointment — Applicability of prevalent scheme vis-à-vis subsequent scheme: Claim for compassionate appointment must be decided only on basis of relevant scheme prevalent on date of demise of employee; subsequent scheme(s) cannot be looked into. [Indian Bank v. Promila, (2020) 2 SCC 729]

Penal Code, 1860 — S. 302: In this case, there was murder of wife in her own home past midnight when appellant was alone with her. Circumstantial evidence pointed to the guilt of appellant and there was no explanation of incriminating evidence. Defective investigation was held to be not vitiative of prosecution case, in present case, hence, conviction was confirmed. [Nawab v. State of Uttarakhand, (2020) 2 SCC 736]

Citizens, Migrants and Aliens — National Register of Citizens of India in State of Assam (NRC): In this case, Union of India was of view that children would not be separated from their parents who have been given citizenship through NRC. [Assam Public Works v. Union of India, (2020) 2 SCC 741]

Criminal Procedure Code, 1973 — Ss. 439 and 437 — Bail — Rejection and cancellation of — Distinction between: Rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with liberty of individual and hence it must not be lightly resorted to. [Myakala Dharmarajam v. State of Telangana, (2020) 2 SCC 743]

Air Force Act, 1950 — S. 52(c) r/w Para 804(b) of Air Force Regulations, 1964 r/w Ss. 154 and 5 CrPC — Inapplicability of CrPC to matters covered by Air Force Act: In this case registration of FIR for alleged offence of theft and misappropriation of kerosene and diesel, committed by Air Force personnel from Diesel and Petrol Store of Air Force, held, was not mandatory since CrPC is inapplicable to matters covered by Air Force Act which is a special law conferring jurisdiction and powers on court martial. Finding recorded by Tribunal that it was mandatory for authorities to report offences to civil police for registration of FIR, unsustainable. Para 804(b) of Regulations makes it clear that reporting of offence of theft to civil police is optional and only when circumstances warrant, competent authority may do so. [Union of India v. Chandra Bhushan Yadav, (2020) 2 SCC 747]

Infrastructure Laws — Telecommunication Laws — Telecom Agreement/Telecom Licence/Spectrum Allocation/Scams/Auction/Licence Fees: In this case, Respondent licensees’ liability towards payment of deferred spectrum charges, in May 2018, was to the tune of Rs 774.25 crores. Since these deferred instalment charges could not be made within the time granted, the Union encashed bank guarantees to the tune of Rs 908.91 crores as against the actual amount of Rs 774.25 crores. In this case, rejecting the contention of the Union that there were subsequent defaults or short payments in respect of liability towards later periods, held, that there was no rationale for the Union to resist the demand for refund of excess amounts. Thus, the order of TDSAT directing Union to return the unadjusted amount of Rs 104.34 crores, upheld. [Union of India v. Reliance Communication Ltd., (2020) 2 SCC 756]

Education Law — Employment and Service Matters re Educational Institutions — Appointment/Recruitment — Right to appointment — Appointment to post of Vice-Principal: In this case there was selection of respondent-petitioner by the Selection Committee for appointment as Vice-Principal approved by governing body but rejected by University vide letter dt. 13-1-2006 since prior approval of University as mandated by Cl. 4(4) of Delhi University Ordinance XVIII was not taken and also manner in which College was appointing Acting Principal. The Supreme Court held that though Cl. 4(4) mandates that prior approval from University before making appointment must be taken but on most occasions it was noticed that approval had been granted post facto. In such circumstances, rejection of respondent’s appointment was not justified, more so, when his candidature was approved by governing body and he was eligible. Further, resolution of expanded governing body of College dt. 29-2-2016 noting that respondent-petitioner was illegally holding post of Acting Principal and hence, recommending appointment of seniormost teacher as Principal was to deny respondent benefit of appointment of Vice-Principal to which he was entitled. Furthermore, apprehension that if respondent becomes Acting Principal by virtue of being Vice-Principal, he would not allow appointment of regular Principal baseless since it is only when appellants fail in their duty to appoint Principal, Cl. 7(3) of Ordinance XVIII would be applicable and respondent entitled to act as Principal in terms thereof — Respondent entitled to be appointed as regular Vice-Principal. [Swami Shraddhanand College v. Amar Nath Jha, (2020) 2 SCC 761]

Criminal Procedure Code, 1973 — S. 227 — Discharge of accused — When warranted — Scope of S. 227 CrPC:Relevant considerations by court at that stage, discussed. Governing principles regarding permissibility of defence of accused or documents produced by him, summarized. [M.E. Shivalingamurthy v. CBI, (2020) 2 SCC 768]

Armed Forces Tribunal Act, 2007 — Ss. 30, 15 and 3(f) — Appellate jurisdiction of Supreme Court — Scope of interference with order of substituted punishment passed by Tribunal: Supreme Court in exercise of its appellate jurisdiction under S. 30, held, would be slow in interfering with substituted punishment unless order passed by Tribunal is patently illegal, warranting interference. [Union of India v. R. Karthik, (2020) 2 SCC 782]

Juvenile Justice (Care and Protection of Children) Act, 2015 — Ss. 2(33), 2(45), 2(54), 14, 15, 19 and 21 — “Heinous offence” — What is: Only those offences which prescribe minimum sentence of 7 yrs or more can be regarded as heinous offences. Offences not providing minimum sentence of 7 yrs, held, cannot be treated as heinous offences. Offences prescribing maximum sentence of more than 7 yrs but not providing any minimum sentence or providing minimum sentence of less than 7 yrs’ imprisonment, held, are not covered by S. 2(33). In exercise of power under Art. 142 of the Constitution, held, such offences shall be treated as “serious offences” within meaning of S. 2(54) till Parliament steps in to make provisions clearer. When two views are possible, one in favour of children is to be preferred. [Shilpa Mittal v. State (NCT of Delhi), (2020) 2 SCC 787]

Juvenile Justice (Care and Protection of Children) Act, 2000 — S. 7-A — Juvenility — Effect of rejection of plea of: The plea of juvenility cannot be reagitated. S. 7-A of the JJ Act stipulates that an application can be filed before any court at any stage including the stage after the final disposal of the petition. However, once a convict has chosen to take the plea of juvenility before Magistrate, High Court and also before the Supreme Court and the said plea has been rejected up to Supreme Court, the petitioner cannot be allowed to reagitate the plea of juvenility by filing fresh application under S. 7-A of the JJ Act. [Pawan Kumar Gupta v. State (NCT of Delhi), (2020) 2 SCC 803]

Cases ReportedSupreme Court Cases

Constitution of India — Arts. 32, 136, 137 and 226 — Judicial review — Disputes involving government contracts: Determination of pricing is not the function of courts, particularly in defence contracts.  Such issues cannot be dealt with by courts on mere suspicion of persons approaching it. Judicial review does not permit re-appreciation of materials. Court cannot sit in judgment over wisdom of Government. [Yashwant Sinha v. CBI, (2020) 2 SCC 338]

Civil Procedure Code, 1908 — Or. 8 R. 6-A — Counterclaim: Court has discretionary power to consider belated counterclaim filed after submission of written statement. Balanced approach of court in exercise of discretionary power where counter-claim is filed after submission of written statement, stressed. Factors to be considered for exercise of discretionary power, illustrated. Once issues have been framed, further held (per curiam), court cannot entertain belated counterclaim filed after submission of written statement. [Ashok Kumar Kalra v. Surendra Agnihotri, (2020) 2 SCC 394]

Service Law — Transfer of Employee/Service — Rights/Entitlements on Transfer: In this case there was transfer of 15 regular employees from Kandla Port Trust (KPT) to FCI w.e.f. 1-1-1973. They claimed parity by remaining 306 work-charged employees of KPT who were also transferred to FCI. Tribunal directed FCI (Respondent 1) to give option to 15 employees to elect revised pay scales under S. 12-A(4) of 1964 Act. The Supreme Court held that distinction between regular employee and work-charged employee cannot be ignored. Relief granted by Tribunal was also restricted to 15 workmen who were regular employees. Besides, office order dt. 18-9-1973 transferring employees working in KPT to FCI also shows that regular employees and work-charged employees were treated differently. Even assuming that workcharged employees also had to be appointed in FCI, they cannot claim parity with regular employees, that too in 1996 after having accepted appointment in FCI as per office order dt. 18-9-1973. [Kandla Port Workers Union v. Food Corpn. of India, (2020) 2 SCC 419]

Penal Code, 1860 — Ss. 302/149, 147 and 148 — Murder — Testimony of interested eyewitnesses — When may be relied on: In this case, clear, cogent and almost identical testimony of interested eyewitnesses (there being previous enmity) was fully corroborated by medical evidence. There was prompt FIR and no reason to doubt prosecution case, hence, reversal of acquittal, confirmed. [Ramji Singh v. State of U.P., (2020) 2 SCC 425]

Penal Code, 1860 — S. 456 — Housebreaking by night — Acquittal by Tribunal, reversed: In instant case, it was held that the judgment of Tribunal acquitting respondent-accused cannot be sustained since Tribunal erred in ignoring material evidence on record and blowing out of proportion minor contradictions in testimonies of S (person into whose house accused had broken into at night) since there was ring of truth in her evidence and no reason for her to falsely implicate respondent. Besides, it also failed to consider consistent testimonies of other witnesses who spoke about occurrence. Moreover, it ignored material evidence on record like photograph of bruises on both arms of respondent and opinion of doctor which lent support to prosecution version. Thus, there was sufficient material on record clearly pointing to guilt of respondent. Tribunal erred in interfering with judgment of conviction passed by SCM. Judgment of SCM imposing punishment of dismissal and reduction in rank restored. However, it was directed that sentence of imprisonment imposed would be modified to period already undergone. [Union of India v. Dafadar Kartar Singh, (2020) 2 SCC 437]

Constitution of India — Arts. 226 and 32 — Maintainability of writ petition — Alternative remedy/Exhaustion of remedies: Principle that High Court should not exercise its extraordinary writ jurisdiction when efficacious alternative remedy is available is a rule of prudence and not rule of law. Existence of such remedy does not mean that jurisdiction of High Court is ousted. Rule of alternative remedy is a rule of discretion and not rule of jurisdiction. Merely because court may not exercise its jurisdiction is no ground to hold that it has no jurisdiction. In relation to orders passed by Armed Forces Tribunal (AFT), High Court would be justified in exercising its writ jurisdiction because of some glaring illegality committed by AFT. Besides, alternative remedy must also be efficacious. To expect a Non-Commissioned Officer (NCO) or Junior Commissioned Officer (JCO) to approach Supreme Court in every case may not be justified because it is extremely difficult and beyond monetary reach of ordinary litigant to approach Supreme Court. Thus, exercise of writ jurisdiction against orders of AFT is within discretion of High Court and there cannot be blanket ban on exercise of such jurisdiction. [Balkrishna Ram v. Union of India, (2020) 2 SCC 442]

Constitution of India — Arts. 137, 141 and 142 — Curative petition against death sentence — Maintainability — Nirbhaya Gang Rape Case: As petitions were not within parameters of law laid down in Rupa Ashok Hurra, (2002) 4 SCC 388, curative petitions dismissed. Along with it, applications for oral hearing and stay on execution of death sentence were also rejected. [Akshay Kumar Singh v. State (NCT of Delhi), (2020) 2 SCC 454]

Arbitration and Conciliation Act, 1996 — Ss. 11(6-A) [as ins. in 2015] and 16 — Appointment of arbitrator and jurisdiction of arbitrator: Law summarised regarding exercise of power under S. 11 before 2015 Amendment and after Amendment. Doctrine of kompetenz-kompetenz and its limitations, explained. Consideration of preliminary objections such as limitation, etc. by Court at pre-reference stage, after insertion of S. 11(6-A) is not permissible. After the insertion of S. 11(6-A), issue of limitation, which is a jurisdictional issue, held, is to be decided by arbitrator. [Uttarakhand Purv Sainik Kalyan Nigam Ltd. v. Northern Coal Field Ltd., (2020) 2 SCC 455]

Arbitration and Conciliation Act, 1996 — S. 11(6) — Appointment of arbitrator by court, in terms of arbitration agreement as opposed to appointment ignoring arbitration agreement — Necessity of: When agreement specifically provides for appointment of named arbitrators, appointment should be in terms of agreement, unless there are exceptional reasons for departing from agreement procedure for appointment of arbitrator, as per settled principles. [Union of India v. Pradeep Vinod Construction Co., (2020) 2 SCC 464]

Criminal Procedure Code, 1973 — S. 301 and 225 r/w S. 24(8) proviso and S. 311 — Extent of right of victim’s counsel to assist the prosecution: The same is not restricted only to assisting Special Public Prosecutors. Rather, assistance given by the victim’s counsel is meant to be given to the prosecution in general, regardless of who exactly is leading it. Further held, extent of assistance by victim’s counsel to Public Prosecutor and manner of giving it would depend on the facts and circumstances of each case. Though all possible scenarios that may arise during a criminal prosecution cannot be detailed and discussed, a victim’s counsel should ordinarily not be given the right to make oral arguments or examine and cross-examine witnesses. The balance inherent in the scheme of CrPC should not be tampered with, and the prime role accorded to the Public Prosecutor should not be diluted. Even if there is a situation where the Public Prosecutor fails to highlight some issue(s) of importance despite the same having been suggested by the victim’s counsel, the victim’s counsel may still not be given the unbridled mantle of making oral arguments or examining witnesses. If the victim’s counsel finds that the Public Prosecutor has not examined a witness properly and not incorporated his suggestions either, he may bring certain questions to the notice of the court. If the Judge finds merit in them, he may take action accordingly by invoking his powers under S. 311 CrPC or S. 165 of the Evidence Act, 1872. [Rekha Murarka v. State of W.B., (2020) 2 SCC 474]

Local Government — Town Planning — Development permission/FSI charges/Change of land use — Rate of prevalent FSI (Floor Space Index) charges — Determination of: Mere pendency of the application for planning permission does not create a vested right in an applicant and right accrues only when the permission/sanction is granted by the Government/authorities concerned. Further, until and unless an application complete in all respects is approved, it remains a mere application and no right can be claimed on the basis of such an application. Thus, the rates prevailing at the time of granting of permission are the rates which an applicant has to pay. [Chennai Metropolitan Development Authority v. D. Rajan Dev, (2020) 2 SCC 483]

Service Law — Pension — Entitlement to pension — Period of interruption of service — Non-consideration of for purposes of pension — Propriety: In this case, appellant was appointed on 8-5-1970 as Proof Reader, seeking voluntary retirement on 1-2-1988, but subsequently reappointed on 3-8-1994 pursuant to recommendations of Education Minister. There was prayer for adding period of interruption of service between 1-2-1988 and 3-8-1994 i.e. more than six years for grant of pension. In terms of R. 4.23, Punjab Civil Service Rules, Vol. II as applicable to State of Haryana, period of interruption of one year service could be condoned for grant of pensionary benefits. Appellant’s request for relaxation from R. 4.23 was not acceded to by Government. Hence, it was held that refusal by respondent for adding period of interruption for pensionary benefit cannot be faulted with. Further held, appellant’s period after fresh appointment from 3-8-1994 being less than qualifying service of 10 years, he was not entitled for pension. [Surinder Nath Kesar v. Board of School Education, (2020) 2 SCC 499]

Service Law — Penalty/Punishment — Competent authority — Regns. 4(h) and 5(3) of Canara Bank Officers and Employees (Discipline and Appeal) Regulations, 1976: In this case, punishment of compulsory retirement was imposed by General Manager while disciplinary proceedings was initiated by DGM as disciplinary authority. In terms of Regn. 5(3), disciplinary authority or any other authority higher than it, may impose penalties specified in Regn. 4. Hence it was held that Division Bench erred in holding that General Manager being an authority higher to disciplinary authority could not exercise power of disciplinary authority and impose punishment. Order of Single Judge remitting matter to authorised appellate authority for reconsideration of appeal was restored. [Canara Bank v. Kameshwar Singh, (2020) 2 SCC 507]

Penal Code, 1860 — S. 302 or S. 304 [S. 300 Thirdly and Exception 4] — Murder or culpable homicide not amounting to murder: In this case, there was sudden fight on the spur of the moment and premeditation or intention to kill deceased or to cause the very injury which ultimately led to death of deceased, was absent. All ingredients of S. 300 Exception 4 were satisfied in this case. Hence, it was held that offence committed in this case was not murder but culpable homicide not amounting to murder. [Ananta Kamilya v. State of W.B., (2020) 2 SCC 511]

Criminal Procedure Code, 1973 — S. 389 — Suspension of sentence — Conditional order of suspension of sentence: When suspension of sentence by trial court is granted on a condition, non-compliance with that condition has adverse effect on continuance of suspension of sentence. Court which has suspended the sentence on a condition, after noticing non-compliance with that condition can very well hold that suspension of sentence stands vacated due to non-compliance. [Surinder Singh Deswal v. Virender Gandhi, (2020) 2 SCC 514]

Kerala Buildings (Lease and Rent Control) Act, 1965 (2 of 1965) — S. 11(4)(i) — Tenant sub-letting entire leased premises or any part thereof when lease deed does not confer such powers: Landlord, held, obtains right to seek eviction of tenant from entire premises even if part only of the leased premises is sublet. If one tenancy is created it would not be appropriate to pass eviction order only in respect of part thereof. Hence, in such circumstances, eviction order must be passed in respect of the entire premises. When tenant transfers his rights under lease and sublets entire building or any portion thereof without lease conferring such right on him to do so, then cause arises for eviction. Under such circumstances, landlord should send a registered notice to tenant intimating contravention of said condition of lease. When tenant fails to terminate transfer or sub-lease, as the case may be, within thirty days of receipt of notice, application for eviction can be made by landlord. Sub-letting of any part of tenanted premises gives right to eviction from whole premises. If one tenancy is created it would not be appropriate to pass eviction order only in respect of part thereof but eviction order must be passed in respect of whole premises. [K. Lubna v. Beevi, (2020) 2 SCC 524]

Rent Control and Eviction — Sub-Letting/Sub-Tenant/Sub-Tenancy — Unauthorised sub-letting as a ground for eviction — Subletting by tenant — Proof of: Defence of tenant that he was a partner in the concern in possession of the property let is rejected, when same is to conceal the real transaction of sub-letting. Inducting a partner or partners in business or profession by a tenant by itself does not amount to sub-letting, however, if the purpose of such partnership is ostensible and a deed of partnership is drawn to conceal real transaction of sub-letting, court may tear the veil of partnership to find out real nature of transaction entered into by tenant. [A. Mahalakshmi v. Bala Venkatram, (2020) 2 SCC 531]

Arbitration and Conciliation Act, 1996 — S. 17 r/w Ss. 2(2) & 2(4) and S. 9(3) — Power of Arbitral Tribunal to grant interim relief in cases of statutory arbitrations under other Acts, such as under the Gujarat Act, 1992 — Applicability of Pt. I [Ss. 17 and 9 (3)] of the A&C Act: S. 17 of the 1996 Act is not inconsistent with the Gujarat Public Works Contracts Disputes Arbitration Tribunal Act, 1992, and thus as per S. 2(4) of the A&C Act, the same is applicable for granting interim relief under Gujarat Act. Furthermore, by application of S. 9(3) of the A&C Act, proper forum for grant of interim relief would be Arbitral Tribunal once it is constituted, and not Court. Moreover, grant of interim relief by High Court exercising writ jurisdiction under Art. 226 of the Constitution is impermissible when such relief can be granted by the Arbitral Tribunal. [State of Gujarat v. Amber Builders, (2020) 2 SCC 540]

Motor Vehicles Act, 1988 — Ss. 163-A and 147: Claim petition under S. 163-A, held, not maintainable by borrower/permissive user of vehicle against owner and/or insurer of said vehicle, as such borrower/permissive user steps into shoes of owner, and owner cannot both be claimant and recipient. In a claim under S. 163-A, deceased/victim has to be a third party in relation to vehicle in question. Mere own-use of motor vehicle by owner/borrower/permissive user does not entitle such person(s) to maintain S. 163-A petition against insurer of their own/borrowed vehicle. Owner/borrower/permissive users are not “third parties” in relation to their own/borrowed vehicle and hence are not covered by statutory insurance under S. 147. Thus, claim of owner/borrower/permissive user would be limited to personal accident coverage re own-use of the vehicle, if any, strictly as per contract of insurance covering the borrowed vehicle. [Ramkhiladi v. United India Insurance Co., (2020) 2 SCC 550]

Cases ReportedSupreme Court Cases

Service Law — Appointment — Criteria for appointment: Requisite educational qualifications of the candidate need not be possessed in one certificate, and certificates obtained by candidate can be considered cumulatively. [Rajesh Kumar Dwivedi v. State of U.P., (2020) 2 SCC 167]

Service Law — Reservation/Concession/Exemption/Relaxation and Affirmative Action: Revised requisition dt. 20-8-2014 and OM dt. 12-10-2014 by State of U.P. notifying revised vacancies in different categories of a particular subordinate service was held valid since it was only intended to rectify wrongful calculation of number of vacancies in different categories and to comply with requisite percentage of quota of reservation in different categories as per 1994 Act. [Anupal Singh v. State of U.P., (2020) 2 SCC 173]

Rent Control and Eviction — Arrears of Rent/Default/Tender of Rent/Striking off Defence — Default in payment of rent — Disputed questions of fact: In this case, there was remand to Rent Controller to decide the disputed questions of fact based on evidence. The Supreme Court fixed provisional rent to be paid pending final disposal of proceedings by Rent Controller. Tenant also directed to furnish tangible security to Rent Controller, so that if case is decided against tenant, landlord does not have to run after him to collect money. [Espire Infolabs (P) Ltd. v. Sadhana Foundation, (2020) 2 SCC 214]

Criminal Procedure Code, 1973 — S. 228 — Framing of charge: At time of framing charges, only prima facie case is to be seen and whether case is beyond reasonable doubt, is not to be seen at such stage. Court has to see if there is sufficient ground for proceeding against accused. While evaluating materials, strict standard of proof is not required; only prima facie case against accused is to be seen. Judge is not required to record detailed reasons as to why such charge is framed. On perusal of record and hearing of parties, if Judge is of opinion that there is sufficient ground for presuming that accused has committed offence triable by Court of Session, he shall frame charge against accused for such offence. [Bhawna Bai v. Ghanshyam, (2020) 2 SCC 217]

Consumer Protection — Consumer/Consumer Dispute/Locus Standi — Subrogation/Assignment of Consumer Claims: Complaint filed by insurer as a subrogee of consumer, held, maintainable. Further held that the hotel-owner cannot contract out of liability for its negligence or that of its servants in respect of a vehicle of its guest in any circumstance and once possession of vehicle is handed to hotel staff or valet, there is an implied contractual obligation to return vehicle in a safe condition upon direction of owner. However, it would not be proper to impose a standard of strict liability upon hotel owners i.e. hotel cannot be made strictly liable for safety of vehicles, in all situations without proof of negligence on its part. Thus, in cases where such a bailment relationship is found to exist between hotel and its guest, prima facie liability rule should be applied in respect of vehicles so bailed to the hotel. [Taj Mahal Hotel v. United India Insurance Co. Ltd., (2020) 2 SCC 224]

Penal Code, 1860 — S. 397 — Dacoity — Circumstantial evidence: In this case of dacoity, evidence as to alleged incriminating conduct of accused, was held not reliable and recovery of stolen articles was also found doubtful. The fingerprints report was not reliable and co-accused was granted acquittal. Hence, acquittal of appellant was restored. [Nagaraja v. State of Karnataka, (2020) 2 SCC 257]

Consumer Protection — Consumer/Consumer Dispute/Locus Standi — “Commercial purpose”: Law clarified regarding what is “commercial purpose”. The principles for determination of “commercial purpose, also summarized. Negative test that every transaction which does not fall within ambit of “earning livelihood by means of self-employment” would necessarily be for a commercial purpose, held, not the correct approach. Rather, correct approach is to see whether purchaser of goods and services, be it a commercial entity or not, has purchased the same for their own personal use and consumption or for the personal use and consumption of some other beneficiary, and such purchase does not have a close and direct nexus to ordinary profit-generating activities of the purchaser nor dominant intention or purpose of transaction was profit generation for the purchaser and/or their beneficiary. [Lilavati Kirtilal Mehta Medical Trust v. Unique Shanti Developers, (2020) 2 SCC 265]

Arbitration and Conciliation Act, 1996 — S. 19 r/w S. 34: Non-granting of opportunity to cross-examine the witnesses is not a ground to set aside the award, when parties had agreed to such procedure. There is estoppel against challenging agreed upon procedure and raising contention of misconduct on part of arbitrator for having following agreed upon procedure. [Jagjeet Singh Lyallpuri v. Unitop Apartments & Builders Ltd., (2020) 2 SCC 279]

Criminal Procedure Code, 1973 — Ss. 228 and 227 — Framing of charge: Principles to be followed by court for framing of charge, summarized. There must be appreciation of material available on record at the stage of framing of charge. Grave suspicion, reiterated, is enough for framing of charges. [State (NCT of Delhi) v. Shiv Charan Bansal, (2020) 2 SCC 290]

Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (1 of 1972) — S. 50 — Employees’ dues recoverable as arrears of land revenue — Non-priority of, over charge of secured creditor: Merely by virtue of being recoverable as arrears of land revenue, the employees’ dues, in respect of which a recovery certificate had been issued by the Industrial Court, cannot be treated as a paramount charge in terms of S. 169(1) of the Land Revenue Code and under S. 169(2) they would take precedence only over unsecured claims. [Maharashtra State Coop. Bank Ltd. v. Babulal Lade, (2020) 2 SCC 310]

Criminal Procedure Code, 1973 — Ss. 319 and 173 — Summoning a person as additional accused — Effect of protest petition not having been filed at S. 173 stage by complainant/informant: The fact that a protest petition had not been filed by appellant complainant when the report was submitted under S. 173 CrPC did not render court powerless to exercise its powers under S. 319 CrPC on the basis of evidence which had emerged during trial. The exercise of discretion by trial Judge to summon second respondent fulfilled the requirements of S. 319 CrPC and was consistent with the parameters laid down by the Supreme Court. Thus, order passed by trial Judge, allowing application and issuing summons to second respondent under S. 319 CrPC, restored. [Saeeda Khatoon Arshi v. State of U.P., (2020) 2 SCC 323]

Cases ReportedSupreme Court Cases

A tribute to Dr Shamnad Basheer: This article is a tribute to Dr Shamnad Basheer, an Indian legal scholar and founder of the blog SpicyIP. He was also the founder of IDIA, a trust which works on making legal education accessible for underprivileged students. Dr Shamnad Basheer was also a Ministry of Human Resource Development Chaired Professor of Intellectual Property Law at the WBNUJS, Kolkata. [In Memory Of Shamnad Basheererby Ruma Pal, (2020) 1 SCC (J-1)]

A tribute to Dr Shamnad Basheer: This article is also a tribute to Dr Shamnad Basheer, an Indian legal scholar and founder of the blog SpicyIP. He was also the founder of IDIA, a trust which works on making legal education accessible for underprivileged students. Dr Shamnad Basheer was also a Ministry of Human Resource Development Chaired Professor of Intellectual Property Law at the WBNUJS, Kolkata. [Shamnad: An Exceptional Scholar And Humanistst by Mahendra Pal Singh, (2020) 1 SCC (J-3)]

Criminal responsibility with and without mens rea: Jerom Hall’s rationalisations of the mens rea doctrine have virtually turned it into a cardinal tenet of criminal liability that continues to dominate the criminal liability thinking to the present day. But in the post industrialised societies the growing spectre of objective criminal liability and increasing incidence of strict liability are posing a tough challenge to the mens rea hegemony. Apart from the challenges that emerge from the traditions and the legislative initiatives, the most powerful critique of mens rea has come from the thoughts and writings of Lady Barbara Wootton, whose anti-mens rea thesis have posed a ground level challenge. As against Lady Barbara Wootton’s preventive, non-punitive and pro-strict liability conceptualisation of criminal responsibility, Professor H.L.A. Hart, as a traditionalist, upholds the punitive criminal law system that is strongly anchored on a guilty mind or mens rea element. In this article, the author has discussed the Hart/Wootton debate about criminal responsibility without mens rea and the implications for the common law offences in the United Kingdom and Penal Code and statutory law offences in India. [The Hart/Wootton debate about criminal responsibility without mens rea: Implications for the common law offences in the United Kingdom and Penal Code and statutory law offences in India by Professor B.B. Pande, (2020) 1 SCC (J-8)]

Cheque proceedings against a company during insolvency proceedings: The National Company Law Appellate Tribunal recently in Shah Bros. Ispat (P) Ltd. v. P. Mohanraj, 2018 SCC OnLine NCLAT 415, approved parallel continuation of proceedings under the Negotiable Instruments Act, 1881 against a company subjected to moratorium while undergoing resolution process under the Insolvency and Bankruptcy Code, 2016. The decision of NCLAT raises multiple issues ranging from an apparent conflict between the NI Act and the IB Code to practical impossibilities in allowing both the proceedings to continue simultaneously. The object of the article is to discuss the legal problems that may arise in light of the decision in Shah Bros. Ispat case, and why the decision needs to be revisited in light of the settled law. [Cheque proceedings against a company during insolvency proceedings – A legal complication by Akaant Kumar Mittal, (2020) 1 SCC (J-23)]

Emergency arbitration: The concept of an emergency arbitrator involves a mechanism by which a party to an arbitration agreement who wishes to seek an urgent pro tem or protective measure may apply for appointment of an arbitrator even before the constitution of the Arbitral Tribunal. This is usually done to secure the disputed amount or property, prevent disclosure of proprietary information, or preserve evidence before it is destroyed. In this article, the author has discussed the history of the practice of emergency arbitration, its status around the world and in India and the issues surrounding enforcement of their awards. The author has also suggested that merely having emergency arbitrator within the ambit of “Arbitral Tribunal” is not sufficient and measures should be taken to make the practice of an emergency arbitrator more effective.[ Emergency arbitrators and the issues surrounding enforcement of their awards: An Indian perspective by Vardaan Bajaj, (2020) 1 SCC (J-30)]

Cases ReportedSupreme Court Cases

Constitution of India — Arts. 137, 142, 145(3), 25 and 26 — Scope of review jurisdiction: In review petitions and writ petitions questioning judgments of majority Judges in Sabarimala Temple, (2019) 11 SCC 1, having regard to the issues raised, the recurring issues pertaining to rights flowing from Arts. 25 and 26 referred to a larger Bench of appropriate size, of not less than seven Judges, in exercise of Court’s plenary power to do complete and substantial justice, to instill public confidence and to effectuate principle underlying Art. 145(3). Hence, directed review petitions as well as the writ petitions questioning judgments of majority Judges in Sabarimala Temple, (2019) 11 SCC 1, may, accordingly, remain pending until determination of the questions indicated herein by the larger Bench as may be constituted by the Chief Justice of India. Further observed, issues raised in other pending writ petitions, relating to entry of Muslim women into dargah/mosque, Parsi women married to non-Parsis into Agyari and practice of female genital mutilation in Dawoodi Bohra Community, may be overlapping and covered by the judgment under review. Prospect of the issues arising in these latter cases being referred to larger Benches cannot be ruled out. Thus, the common and recurring issues concerning interpretation of Arts. 25 and 26, which the larger Bench may consider, enumerated. [Kantaru Rajeevaru (Sabarimala Temple Review-5 J.) v. Indian Young Lawyers Assn., (2020) 2 SCC 1]

Constitution of India — Art. 32 — Transfer of investigation: Plea for transfer of investigation from State Police to independent Central agency was rejected, as there was no material to doubt propriety or efficacy of investigation conducted by State Police. Moreover, adequate protection had been granted to petitioner and her family by court concerned. [ABCD v. Union of India, (2020) 2 SCC 52]

Penal Code, 1860 — Ss. 302 and 323: In appeal against acquittal in respect of charge under S. 302, when accused had been convicted only under S. 323, interference, held, not warranted when accused had already served more than 14 yrs’ imprisonment. [State of M.P. v. Amar Lal, (2020) 2 SCC 64]

Environment Law — Development Projects — Environment Impact Assessment Notification 2006, bearing S.O. 1533 — Paras 2 and 7 — Interpretation of: Objectives of EIA Notification, clarified. The amendment of environmental clearance (EC) which had already been granted, for expansion of projects, is not permissible. Fresh clearance can be obtained from authorities for expansion, held, only by following procedure laid down under Para 7(ii). Mandatory nature thereof, emphasized. [Keystone Realtors (P) Ltd. v. Anil V. Tharthare, (2020) 2 SCC 66]

Criminal Trial — Circumstantial Evidence — Links in the chain of circumstances: In this case, deceased victim was strangulated to death and her face was burnt with acid beyond recognition. Motive behind murder, stood established and testimonies of witnesses, was held trustworthy. Conduct of accused persons after murder was found suspicious. Disclosure statement of one of accused led to recovery of half empty bottle of acid, used for disfigurement of face of deceased, with intention to avoid identification of dead body. Even though witness of last seen could not identify accused persons in court as persons who threw jute bag (containing body of deceased), fact that jute bag was thrown by a man and a woman on TVS motorcycle is relevant in chain of events in support of prosecution case. Extra-judicial confession of one of accused stood supported by medical evidence. Prosecution proved chain of circumstances to prove guilt of accused persons, hence, conviction was confirmed. [Darshan Singh v. State of Punjab, (2020) 2 SCC 78]

Prevention of Corruption Act, 1988 — Ss. 17, 7 and 13 — Persons authorized to investigate: Investigation by police officers of Inspector rank is only an irregularity. Unless such irregularity resulted in causing prejudice, conviction will not be vitiated and bad in law. [Vinod Kumar Garg v. State (NCT of Delhi), (2020) 2 SCC 88]

 Infrastructure Laws — Carriage by Air/Aircraft and Airports — Air Safety Measures: For control of vector borne diseases on aircraft, directions issued regarding disinfecting of aircraft. Expert Committee appointed to make enquiry into the various issues involved and report to the Court for further action. [InterGlobe Aviation Ltd. v. Union of India, (2020) 2 SCC 103]

Arbitration and Conciliation Act, 1996 — S. 37 r/w S. 34: Delay beyond the period of 120 days in filing an appeal under S. 37 is non-condonable. Following the ruling in Varindera Constructions Ltd., (2020) 2 SCC 111, held, any delay beyond 120 days in the filing of an appeal under S. 37 from an application being either dismissed or allowed under S. 34 cannot be allowed. Further, clarified that the said period of 120 days, comprises of a grace period of 30 days under S. 5 of the Limitation Act added to the prescribed period of 90 days. [N.V. International v. State of Assam, (2020) 2 SCC 109]

Consumer Protection — Consumer/Consumer Dispute/Locus Standi — Generally: In case of self-contributory scheme for the benefit of employees run by a trust and not the employer, service provider was the trust, and not the employer. Hence, held, the employer cannot be held liable as service provider under Consumer Protection Act. [ONGC v. Consumer Education Research Society, (2020) 2 SCC 113]

Criminal Procedure Code, 1973 — S. 439 — Bail — Proper exercise of discretionary power: It is a sound exercise of judicial discipline for an order granting or rejecting bail to record the reasons which have weighed with the court for the exercise of its discretionary power. Furthermore, where an order refusing or granting bail does not furnish the reasons that inform the decision, there is a presumption of non-application of mind. Where an earlier application for bail has been rejected, there is a higher burden on the appellate court to furnish specific reasons as to why bail should be granted. [Mahipal v. Rajesh Kumar, (2020) 2 SCC 118]

Service Law — Departmental Enquiry — Judicial review/Validity — Judicial review — Scope — Departmental enquiry vis-à-vis criminal proceedings — Standard of proof: Interference with orders passed pursuant to departmental enquiry can only be in case of “no evidence”. Sufficiency of evidence is not within realm of judicial review. [State of Bihar v. Phulpari Kumari, (2020) 2 SCC 130]

Armed Forces — Pension — One Rank One Pension (OROP) — Entitlement to: In this case, respondents working in non-gazetted posts in Department of Posts under GoI, sent on deputation in Army Postal Service (APS) and retiring from APS on attaining age of superannuation, are entitled to OROP, if any. [Union of India v. Om Dutt Sharma, (2020) 2 SCC 133]

Service Law — Seniority — Determination of seniority: In this case, Regn. 20 of the U.P. Jal Nigam Subordinate Engineering Service Regulations, 1978, mandated appointing authority to make appointments from candidates in order in which they stand in list prepared under Regns. 16(2), 17 or 18 while Regn. 23 provided that seniority of employees would be as per date of substantive appointment. The Supreme Court held that appointment in Regn. 23 must be read in terms of Regn. 20 mandating manner of appointment. Hence, irrespective of date of appointment, seniority has to be fixed as per merit of candidate determined by Selection Committee. Further held, Regn. 6 contemplates that reservation of candidates shall be in accordance with government orders and thus, Government Order dt. 31-8-2001 becomes applicable to determine extent of reservation which includes method of fixing seniority as well i.e. seniority was to be determined as per roster fixed under Regn. 6. Further, argument that seniority has to be fixed as per R. 5 of Uttarakhand Government Servant Seniority Service Rules, 2002, liable to be rejected since 2002 Rules were made applicable only in the year 2011. Seniority directed to be recast in order of merit by assigning seniority as per roster points stipulated in Circular dt. 31-8-2001. [Dharmendra Prasad v. Sunil Kumar, (2020) 2 SCC 146]

Prevention of Corruption Act, 1988 — S. 19 — Retired public servant — Non-entitlement to protection under S. 19 of PC Act: Protection under S 19 of PC Act is available to a public servant only till he is in employment and no sanction thereunder is necessary after the public servant has demitted office or has retired from service.  As regards sanction under S. 197 CrPC, for an action to come within purview of S. 197 CrPC, it must be integrally connected with official duties or functions of public servant concerned, and if the office was merely used as a cloak to indulge in activities which result in unlawful gain to the beneficiaries, the protection under said S. 197 CrPC would not be available. [CBI v. B.A. Srinivasan, (2020) 2 SCC 153]

Cases ReportedSupreme Court Cases

Employees’ Compensation Act, 1923 — S. 4 r/w Sch. IV — Compensation — Quantum — Computation of — Functional disability — Estimation of: In this case, appellant driver of heavy vehicles, aged 33 yrs at time of accident, earning Rs 4000 p.m., was permanently incapacitated consequent to injury on his right leg resulting in complete disability to continue his vocation, besides losing prospect of securing other manual labour job since he required assistance to ensure his mobility and could walk only with help of walking stick. Assessing his functional disability at 100%, considering income of Rs 4000 p.m., and applying relevant factor of 201.66, the Supreme Court held that the appellant was entitled to compensation amounting to Rs 4,83,984 with interest @ 6% p.a. from date of accident till date of payment. [Chanappa Nagappa Muchalagoda v. New India Insurance Co. Ltd., (2020) 1 SCC 796]

Courts, Tribunals and Judiciary — JudiciaryJudicial misconduct/corruption/offences — Error of judgment in decision-making — When punishable/cannot be condoned: Standard or yardstick for judging conduct of judicial officer, held, given the nature of the office, necessarily strict. Dispensation of justice is not only an onerous duty but also a pious one and hence, standards of probity, conduct, integrity that may be relevant for performance of other job is higher for judicial officer who holds office of public trust. Standard or yardstick for judging conduct of judicial officer has therefore to be necessarily strict. However, that does not mean that every inadvertent flow or error would make judicial officer culpable. Bona fide error may need correction or counselling but conduct which creates perception beyond ordinary cannot be countenanced. For a trained legal mind, judicial order speaks for itself. [Ram Murti Yadav v. State of U.P., (2020) 1 SCC 801]

Armed Forces — Promotion — Permanent Secondment in Directorate General Quality Assurance (DGQA) — Consideration of Technical Assessment Reports (TARs) — Dispensation with in view of OM dt. 12-5-2011 superseding OM dt. 8-4-2004: In terms of OM dt. 8-4-2004, consideration for Permanent Secondment to DGQA was based on TARs. In OM dt. 12-5- 2011, no reference to TARs was made while stipulating large number of criteria for consideration for Permanent Secondment to DGQA. Cl. 4 of OM dt. 12-5-2011 specifically stated that said memorandum superseded all previous instructions/guidelines applicable. Hence, the Supreme Court held that OM dt. 12-5-2011 superseded OM dt. 8-4-2004 and TARs could not be considered for Permanent Secondment in DGQA. Submission that OM dt. 8-4-2004 was in nature of executive instructions approved by Raksha Mantri and continued to apply liable to be rejected since OM dt. 12-5-2011 was also in nature of executive instruction issued with approval of Raksha Mantri and it must be assumed that authorities who issued subsequent OM were aware of earlier one. [Union of India v. Sameer Singh, (2020) 1 SCC 809]