Cases ReportedSupreme Court Cases

Arbitration and Conciliation Act, 1996 — Ss. 7, 8 and 11(6) — Arbitration clause — Interpretation of: The parties are bound by the clauses enumerated in the policy and the court does not transplant any equity to the same by rewriting a clause. Further, an arbitration clause is required to be strictly construed and if a clause stipulates that under certain circumstances there can be no arbitration, and the circumstances are demonstrably clear then the controversy pertaining to the appointment of arbitrator has to be put to rest. [Oriental Insurance Co. Ltd. v. Narbheram Power and Steel (P) Ltd.,  (2018) 6 SCC 534]

Civil Procedure Code, 1908 — Or. 6 R. 17 proviso (as amended by Act 22 of 2002) — Amendment of plaint after commencement of trial — Relevant Considerations: Appellants in this case filed present suit for setting aside ex parte decree passed against their predecessor-in-interest in Civil Suit No. 195 of 1968. Record of suit in which ex parte decree was passed was not traceable in record room. In such circumstances, there could possibly be some inability in obtaining correct particulars well in time on part of appellants. Further: (i) at the time when application for amendment was preferred, only two official witnesses were examined, and (ii) proposed amendment neither changing the nature of suit nor introducing any fresh groun. On these facts, held, the proposed amendment ought to have been allowed, more so when it could not have caused any prejudice to defendants. [Gurbakhsh Singh v. Buta Singh, (2018) 6 SCC 567]

Civil Procedure Code, 1908 — Or. 7 R. 11(d) — Application for rejection of plaint: The plaint is required to be read as a whole. The defence available to the defendants or the plea taken by them in the written statement or any application filed by them, cannot be the basis to decide the application under Order 7 Rule 11(d). Only the averments in the plaint are germane. [Chhotanben v. Kiritbhai Jalkrushnabhai Thakkar, (2018) 6 SCC 422]

Competition Act, 2002 — Ss. 5, 6, 43-A and 64(3) — Combination — Regn. 9(4) of Regulations framed under S. 64(3) — Compliance with — Nature of transaction: Substance of transactions to be seen in circumstances of the case. Structuring of transactions should not be to avoid mandatory provisions of the Act. Having regard to facts and circumstances, it was held, transaction in question not independent one but part of a single, composite combination, interconnected and interdependent with other transactions. Hence non-notification of the transaction which formed part of combination amounted to violation of S. 6 and would entail penalty under S. 43-A. [CCI v. Thomas Cook (India) Ltd., (2018) 6 SCC 549]

Constitution of India — Arts. 21, 14, 32 and 136 — Misuse of provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 in last three decades: Issue of safeguards against arrest and false implications under provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, laid down to operate prospectively. It was also directed that balance must be maintained between need to check crimes against SCs and STs and there is need to protect innocent persons from abuse of process. There must be preliminary inquiry prior to FIR. To avoid false implication of innocent under Atrocities Act, preliminary inquiry must be made by Deputy Superintendent of Police (DSP) concerned prior to registration of an FIR to find out whether it comes within Atrocities Act and not frivolous or motivated. It should be time bound inquiry not exceeding seven days. Even if case has been registered after preliminary inquiry, arrest is not mandatory. There must be written permission prior to arrest. Further, in such cases, no arrest without written permission from appointing authority (in case of public servants) and Senior Superintendent of Police of District (in case of non-public servants) should be made and such permission must record reasons. Magistrate must also apply mind to see if such reasons are justified prior to taking further action. These directions are prospective in nature. [Subhash Kashinath Mahajan v. State of Maharashtra, (2018) 6 SCC 454]

Constitution of India — Arts. 226 and 227: In writ petition against Decree in eviction proceedings under Rent Act for possession and mesne profits, there was delay in complying with High Court directions to tenant to deposit rent and mesne profits. Rejection of tenant’s applications for extension of time and condonation of delay in making said payments without consideration of relevant facts, not proper. [Nonihal Singh v. Maya Devi, (2018) 6 SCC 396]

Criminal Procedure Code, 1973 — S. 438 — Remand — Dismissal of: As the anticipatory bail application was dismissed by High Court, without assigning any reasons, matter remanded back to High Court for deciding bail application filed under S. 438 CrPC, afresh on merits. [Prem Giri v. State of Rajasthan, (2018) 6 SCC 571]

Criminal Trial — Circumstantial Evidence — Generally — To sustain conviction on basis of circumstantial evidence — Requirements of: All links in the chain of circumstances must be complete leading to only hypothesis for guilt of accused. If there are any missing link in the chain of circumstances and possibility of innocence cannot be ruled out, benefit of doubt must be given by acquittal. [Satpal v. State of Haryana, (2018) 6 SCC 610]

Customs Act, 1962 — S. 130-A (prior to its repeal by Act 49 of 2005): On the matter of necessity of calling for a statement from the Tribunal before deciding application seeking reference under S. 130-A, in view of the ruling rendered in Central Mfg. Tech. Institute, (2018) 13 SCC 812 and considering question of law involved, matter referred to larger Bench. [CCE v. Adani Exports Ltd., (2018) 6 SCC 514]

Customs Act, 1962 — S. 135 — Charge under — Bail — Grant of: In the light of period of custody suffered by the appellant-accused and the fact that the co-accused has also been granted bail, the appellant is directed to be released on bail. [Munawwar Ali v. Union of India, (2018) 6 SCC 583]

Education Law — Employment and Service Matters re Educational Institutions — Promotion — Criteria/Eligibility: Cl. 1.1.1, UGC (Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and other Measures for the Maintenance of Standards in Higher Education) Regulations, 2010 provided that for teachers in Faculty of Medicine, norms/regulations of Ministry of Health and Family Welfare, GoI would apply for promotion to post of Professor in Medical College affiliated to Aligarh Muslim University (Central University). Cl. 12(19), Ch. IV, Aligarh Muslim University Ordinances (Executive) for Promotion under the Career Advancement Scheme stipulated that teachers in Faculty of Medicine should possess qualifications as prescribed by MCI. MCI Regulations provided MD/MS as the minimum qualification for appointment to post of Professor in Medical College. Hence held, finding of High Court that since appellants and R-6 & R-7 did not possess PhD they were not entitled for appointment to post of Professor erroneous and set aside. Matter remitted to High Court for consideration afresh since other issues raised by R-1 were not adjudicated. [Shadab Ahmed Khan v. Mujahid Beg, (2018) 6 SCC 385]

Family Courts Act, 1984 — S. 9: Under S. 9, Family Court has a duty to make endeavour to assist and persuade parties in arriving at settlement. Unlike many other legislations, legislature cast a duty on Family Court in this regard. Jurisdiction is not just to decide dispute but on contrary Family Court also has to involve itself in process of conciliation/mediation between parties for assisting them not only to settle disputes but also secure speedy settlement of disputes. Such timely intervention of Family Court will not only resolve disputes and settle the parties peacefully but also prevent sporadic litigation between the parties. [Anu Bhandari v. Pradip Bhandari, (2018) 6 SCC 389]

Income Tax — Deductions — Deduction of lease equalisation charges from lease rental income — Permissibility of: In this case, Respondent filed return of income for Assessment Year 1999-2000 claiming an amount of Rs 1,65,12,077 as deduction for lease equalization charges while Revenue contended that the respondent could not be allowed to claim such deduction in the absence of an express provision regarding it in the IT Act. It was held that the method of accounting followed, as derived from the ICAI’s Guidance Note, was a valid method of capturing real income based on the substance of finance lease transaction. Further, the difference between capital recovery and interest or finance income was essential for accounting for such a transaction with reference to its substance and if the same was not carried out, the respondent would be assessed for income tax not merely on revenue receipts but also on non-revenue items which was completely contrary to the principles of the IT Act and to its scheme and spirit. Further, the bifurcation of the lease rental was not an artificial calculation and, therefore, lease equalisation was an essential step in the accounting process to ensure that real income from the transaction in the form of revenue receipts only is captured for the purposes of income tax. In this case, held, the respondent/assessee was entitled for bifurcation of lease rental as per the accounting standards prescribed by the ICAI and also there was no express bar in the IT Act regarding the application of such accounting standards. [CIT v. Virtual Soft Systems Ltd., (2018) 6 SCC 584]

Income Tax Act, 1961 — S. 5 r/w Sikkim State Income Tax Rules, 1948 — Income by way of prize money from Sikkim State Lottery, prior to 31-3-1989 i.e. the date from which IT Act became applicable in the State of Sikkim — Taxability of: Prior to 26-4-1975, Sikkim was not considered to be a part of India and IT Act was made applicable only by Notification made in 1989. Appellant assessee a resident of Jaipur, Rajasthan, having income from business and property, won Rs 20 lakhs from Sikkim State Lottery and received Rs 16,20,912, after deduction of agent’s/seller’s commission and Rs 1,79,088 being income tax under the Sikkim State Income Tax Rules. It was held that the income accruing and arising in foreign countries can be brought to tax provided the assessee is resident and ordinarily resident and further the income accrued or received in any territory which is considered to be a part of India is within the net of the IT Act. Thus, appellant, being a resident of Rajasthan, the said received income for AY 1986-87 was liable to be included in the hands of the assessee as resident of India. However, since the amount had been earned by the appellant assessee in the State of Sikkim and the amount of lottery prize was sent by the Government of Sikkim to Jaipur on the request made by the appellant, S. 5 of the IT Act would not be applicable. Therefore, income tax would be payable, under the Sikkim State Income Tax Rules and not under the IT Act. Further, in the absence of a specific provision by the legislature for including such an income, the assessee could not be subjected to double taxation. [Mahaveer Kumar Jain v. CIT, (2018) 6 SCC 527]

Income Tax Act, 1961 — S. 80-HHC: Matter regarding entitlement to deduction of export incentives under S. 80-HHC to supporting manufacturer who receives export incentives in the form of duty drawback (DDB), duty entitlement pass book (DEPB), etc., referred to larger Bench. [CIT v. Carpet India, (2018) 6 SCC 620]

Penal Code, 1860 — S. 302 r/w Ss. 149 & 506 and Ss. 147, 148, 458 r/w S. 149 — Circumstantial evidence: In this case, chain of events unequivocally pointing towards guilt of accused, thus, not established. It is the duty of court to separate chaff from husk and to dredge truth from pandemonium of statements. There are no compelling reasons and substantial grounds for High Court to interfere with order of acquittal passed by trial court. Hence, acquittal of accused, restored. [Bhaskarrao v. State of Maharashtra, (2018) 6 SCC 591]

Penal Code, 1860 — Ss. 302/201/149 — Murder trial: In this case of brutal murder of a person with a view to prohibit such person from deposing before court in a case against his assailant, dead body of deceased was cut into two pieces, and thrown at two different places, in order to destroy evidence. There was involvement of 7 accused (including 5 appellant-accused herein, 2 accused since dead). Evidence of 3 eyewitnesses (PWs 6, 11 and 14) was found consistent, cogent and reliable regarding prime appellant-accused K. However, evidence against remaining accused was not as reliable. Hence, conviction of K alone, confirmed. Remaining accused given benefit of doubt and acquitted. [Kameshwar Singh v. State of Bihar, (2018) 6 SCC 433]

Penal Code, 1860 — Ss. 307/34, 323/34, 324/34 and 504: Four accused (appellant-accused) attacked one person T with axe and caused injuries to him on his body. Injuries were abrasion, contusion, and one lacerated wound. Acquittal of all accused reversed by High Court, thereby convicting them under Ss. 307/34, 323/34, 324/34 and 504 and sentencing them accordingly. Interference by Supreme Court with the order of High Court, by modifying respective jail sentences of three accused to that already undergone, while enhancing fine amount awarded by High Court, and also, acquitting the fourth. Reasons for reduction in sentences being: (i) instant litigation is pending in various courts for the past 20 yrs; (ii) seven injuries noticed on body of injured T were not very serious in nature; (iii) T survived leaving no disability much less permanent on his body due to causing of injuries and lived for 20 yrs after the date of alleged incident and died recently; (iv) all appellants underwent almost 1 yr of jail sentence including remission out of total jail sentence awarded by High Court except A-2, who underwent around three months; (v) all appellants were first offender and were not found involved in any criminal activity in the last 20 yrs, though remained on bail throughout; and (vi) Appellants 2 and 3 are reported to be in government service. However, so far as involvement of Appellants 1, 3 and 4, in commission of offence is concerned, from findings of High Court qua each, no case for interference on such findings of fact is called for herein. Hence, finding of conviction of Appellants 1, 3, and 4, is confirmed. For all aforementioned reasons, interference only in quantum of jail sentence awarded by High Court is required and, therefore, their jail sentence is reduced to the sentence already undergone. However, it is just and proper to enhance fine amount imposed by High Court on Appellants 1, 3 and 4 from Rs 7000 to Rs 75,000 for each. [Naresh v. State of Uttarakhand, (2018) 6 SCC 404]

Procedure Code, 1908 — Ss. 152, 151, 33 & 2(2) and Or. 20 — Amendment of decree in order to make it executable: In partition suit, decree was passed by trial court holding plaintiff and defendants to be entitled to 3/5th share and 2/5th share respectively in suit property. There was no dispute as to share allotted in favour of parties concerned but, in order to make that decree executable, defendants moving an application before trial court for amendment of decree seeking direction that sketch map submitted by plaintiff on 6-2-2001 be marked as an exhibit and a part of judgment and decree by effecting necessary corrections in that regard. It was held that since partition decree could not be given effect to without a sketch map of suit schedule property, at the time of passing decree, trial court should have made the sketch map submitted by plaintiff on 6-2-2001 a part of decree. In absence thereof, no party should suffer for the error of court. Consequently, trial court rightly allowed amendment of decree by making the sketch map submitted by plaintiff a part of decree for effecting partition. High Court erred in setting aside that order. [Subhash Chandra Sen v. Nabin Sain, (2018) 6 SCC 443]

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 — S. 18: Review sought of order dt.20-3-2018, Subhash Kashinath Mahajan, (2018) 6 SCC 454. It was clarified that order sought to be reviewed does not bar compensation or other immediate relief being given to victim member of SC/ST as per law. [Union of India v. State of Maharashtra, (2018) 6 SCC 450]

Service Law — Appointment — Judicial Review/Validity of appointment — Exclusion of Judicial Review — Policy/Policy decision/Policy matter — Interference with Equivalence/Marking Systems devised by Appointing Authority — Scope of: Eligibility prescribed for appointment to post of Social Education Organiser was Bachelor’s degree in Sociology from recognised university. K challenged appointment of appellant on ground that appellant did not possess requisite qualifications since she had degree in Malayalam and Sociology (Double Main). High Court by impugned judgment set aside appointment of appellant interfering with marking system. It was held that High Court erred in doing so since only grievance of K was regarding eligibility of appellant. Further held, in such matters it is always advisable to leave award of marks, weightage to be given, etc. to competent authorities. Any interference by court would amount to trenching on wisdom and expertise of selecting authority leading to avoidable litigation and uncertainty of employment unless there is some ex facie perversity or illegality in process. Moreover, University on considering equivalence issue had concluded that degree in Malayalam and Sociology (Double Main) was equivalent to degree in Sociology (Single Main). Appellant, thus, was eligible for appointment. [Thahira P. v. State (UT of Lakshadweep), (2018) 6 SCC 446]

Service Law — Recruitment Process — Irregularities/Malpractice/Illegalities: If selection is found to be tainted in any manner, it is always open to authority concerned to annul such selection to maintain purity of selection process since it is not necessary to segregate tainted and untainted candidates when process itself is tainted. Further held, at pre-appointment stage, decision to cancel selection process can be interfered only if it is patently arbitrary, mala fide or illegal. [Avinash C. v. State of Karnataka, (2018) 6 SCC 614]

Service Law — Recruitment Process — Irregularities/Malpractice/Illegalities: To maintain purity of selection to public posts directed that as far as possible selection process conducted by selection bodies especially State Public Service Commissions and State Selection Boards be videographed by installing CCTV cameras at examination as well as interview centres to extent viable, footage whereof may be seen by independent committee of three members and report of such committee placed on website concerned. [State of Meghalaya v. Phikirbha Khariah, (2018) 6 SCC 618]

Service Law — Recruitment Process — Test/Written examination — Evaluation of answer scripts — Re-verification: As the Committee appointed by High Court found irregularity, High Court directed re-verification of scripts of all 1068 candidates, which was affirmed and not interfered with. Submission that re-verification should be limited only to those filing writ petition, rejected. [Tongbram Bimolchand Singh v. Yumlembam Surjit Singh, (2018) 6 SCC 564]

Specific Relief Act, 1963 — Ss. 34, 35, 37 and 38: In a case where claim of ownership of property is subsequent to its acquisition, where acquisition proceedings attained finality, declaratory remedy of ownership cannot be granted. Suit of such nature cannot be filed. [Y.P. Sudhanva Reddy v. Karnataka Milk Federation, (2018) 6 SCC 574]

Tenancy and Land Laws — Ceiling on Land — Exemption from land ceiling: It is the duty of landowner to show which portion of land is exempted from land ceiling proceedings. [Vishwasrao Satwarao Naik v. State of Maharashtra, (2018) 6 SCC 580]

Transfer of Property Act, 1882 — Ss. 54, 55, 11 and 31 — Supersession of allotment letter by sale deed: Conditions imposed in allotment letter/contract for sale are not binding if not contained in agreement of sale/sale deed. [A.P. Industrial Infrastructure Corpn. Ltd. v. S.N. Raj Kumar, (2018) 6 SCC 410]

U.P. Sugar Undertakings (Acquisition) Act, 1971 (23 of 1971) — Ss. 3 and 2(h)(vi) — Land leased to an undertaking engaged in the manufacture or production of Sugar: The word “held” connotes a wide meaning and all lands held or occupied lawfully and used for the purposes of the factory stood vested in the Government on the appointed day. Further, the word “held” in S. 2(h)(vi) cannot be interpreted as limited only to a holding as an owner of the property and legal possession was sufficient for the lands to vest in the Government by forming part of the scheduled undertaking. Also, the word “including” in S. 2(h)(vi) indicated that the lands held by way of lease were also part of a scheduled undertaking. Further, rejecting the contention that vesting under the 1971 Act was only in respect of the leasehold rights, held, the words “including any leasehold interest therein” in S. 2(h)(vi) could not be understood to have a limiting effect and result in the acquisition of only the leasehold interest in the land. [Gaurav Aseem Avtej v. U.P. State Sugar Corpn. Ltd., (2018) 6 SCC 518]

Cases ReportedSupreme Court Cases

Arbitration and Conciliation Act, 1996 — Ss. 36 and 34 (before and after amendment of S. 36 in 2015): S. 36 as amended in 2015, applies to pending S. 34 applications even in arbitrations commenced prior to 23-10-2015 i.e. date of coming into force of Amendment Act, 2015, as S. 36 is a procedural provision. Rule of automatic stay of operation of award on filing of S. 34 application, even in absence of an order of stay/imposition of conditions by court as per unamended S. 36, held, is no longer applicable. [BCCI v. Kochi Cricket (P) Ltd., (2018) 6 SCC 287]

Constitution of India — Arts. 32 and 21 — Issue of writs — Habeas corpus — Custody of petitioner — Found clearly illegal: Order related custody of petitioner is non est, nullity and without any jurisdiction. Petitioner’s right under Art. 21 stands offended, as he was detained in custody by adopting totally faulty and illegal process. Petitioner directed to be released forthwith. [Champion R. Sangma v. State of Meghalaya, (2018) 6 SCC 348]

Criminal Procedure Code, 1973 — S. 406 — Transfer petitions — Apprehension of not getting a fair and impartial inquiry or trial besides inconvenience of petitioner in pursuing cases — Grounds of: Such apprehension is required to be reasonable and not based upon conjectures and surmises. Convenience for purposes of transfer means convenience of prosecution, other accused, witnesses and larger interest of society. Court has to visualise comparative inconvenience and hardships likely to be caused to witnesses besides burden to be borne by State Exchequer in making payment of travelling and other expenses of official and non-official witnesses, for attending court proceedings, if cases are ordered to be transferred to transferee court. [Harita Sunil Parab v. State (NCT of Delhi), (2018) 6 SCC 358]

Infrastructure Laws — Energy and Power — Electricity — Connection/Disconnection/Reconnection — Electricity connection: Authorities, held, should point out all defects while rejecting application for electricity connection. [D. Saravanan v. TANGEDCO, (2018) 6 SCC 352]

Land Acquisition Act, 1894 — S. 48 r/w Ss. 4, 6 and 9 — Withdrawal from acquisition — When is fraudulent: Withdrawal of acquisition for the benefit of builders/private entities, not permissible, when it through an unholy nexus between the government machinery and builders/private entities deprives innocent and gullible landholders. [Rameshwar v. State of Haryana, (2018) 6 SCC 215]

Motor Vehicles Act, 1988 — Ss. 14(2)(b) and 149 — Statutorily mandated validity period of driving licence (DL) vis-à-vis errors made while issuing DL: As per S. 14(2)(b) licence issued should be for a period of 20 yrs or up to age of 50 yrs whichever is earlier. Date of issuance of original licence in this case was 27-2-1998 and date of birth of driver recorded in licence was 30-4-1961. Hence, licence would had been valid till 29-4-2011 as per statutory mandate, licensing authority erroneously issued DL for a period of 5 yrs when driver concerned was only 37 yrs but since petitioner attained age of 50 yrs on 30-4-2011, licence mentioned expiry date as 29-4-2011. Accident took place on 12-11-2005. High Court judgment setting aside award on ground of invalid licence, reversed. Thus, direction of High Court to recover amounts paid by insurance company to third party injured from appellant (owner of vehicle), set aside. [Compaq International v. Bajaj Allianz General Insurance Co. Ltd., (2018) 6 SCC 342]

Statute Law — Validating or Overriding Enactment/Statute/Legislation — Validating Act — Power to enact — Scope — Supersession by legislature, of a judicial verdict — Permissible limits of — Principles summarized: Though legislature has power to enact validating laws including power to amend laws with retrospective effect and thereby remove causes of invalidity i.e. correct errors/mistakes committed in earlier legislation as pointed out by court in a judgment, the effect of which is to remove the basis and foundation of said judgment, but it cannot overturn or set aside that judgment, that too retrospectively by introducing a new provision in the Act concerned. What the legislature can do is that it can amend the provisions of the statute to remove the basis of the judgment. A judicial pronouncement is always binding unless the very fundamentals on which it is based are altered and the decision could not have been given in the altered circumstances. [State of Karnataka v. Karnataka Pawn Brokers Assn., (2018) 6 SCC 363]

Tenancy and Land Laws — Land Grabbing — Frivolous litigation: In this case as there is prolongation of fruitless litigation by the appellants in different forums, no interference is warranted. [M. Durga Singh v. Yadagiri, (2018) 6 SCC 209]

Cases ReportedSupreme Court Cases

Constitution of India — Art. 14 — Invidious discrimination: Entitlement of former CMs of State of U.P. for allotment of government accommodation for their lifetime in terms of S. 4(3) of U.P. Ministers (Salaries, Allowances and Miscellaneous Provisions) Act, 1981 (as amended by U.P. Act 22 of 2016), violates doctrine of equality and is ultra vires the Constitution. Natural resources, public lands and public goods like government bungalows/official residence are public property and “Doctrine of Equality” which emerges from concepts of justice, fairness must guide State in distribution/allocation of same. Chief Minister, once he demits office is on a par with common citizen, though by virtue of office held, he/she may be entitled to security and other protocols. S. 4(3) of 1981 Act which creates a separate class of citizens for conferment of benefit by way of distribution of public property on basis of previous public office held by them, fails test of reasonable classification violating Art. 14 and is ultra vires the Constitution. Furthremore, U.P. Ex-Chief Ministers Residence Allotment Rules, 1997 were struck down by Supreme Court in Lok Prahari, (2016) 8 SCC 389 on ground that provision for accommodation for ex-CMs as made in the Rules was in direct conflict with S. 4 of 1981 Act. Insertion of S. 4(3), as substantive provision in statute, which sought to bring in same effect as 1997 Rules without curing defect as pointed out, is an invalid attempt to overreach judgment in Lok Prahari case. [Lok Prahari v. State of U.P., (2018) 6 SCC 1]

Constitution of India — Art. 226 — Maintainability of writ petition: In this case, second writ petition was filed after disposal of earlier one as withdrawn. Earlier petition was withdrawn only on account of pendency of appeal. Second writ petition challenging subsequent order passed in appeal, hence held, was maintainable. [Vinod v. District Selection Committee, (2018) 6 SCC 68]

Constitution of India — Art. 32 — Misuse of PIL — Casting aspersions on District Judiciary, High Court Judges, misrepresentation of facts, baseless allegations: In a case death of Special Judge conducting alleged Fake Encounter Death case (Sohrabuddin case), there was non-registration of FIR as inquest report and other materials indicated natural death. Discreet inquiry conducted by Commissioner, State Intelligence Department (SID) also concluding similarly. No complaint was lodged by any relative of said Special Judge in local police station about any suspicion regarding cause of death. Prayer for registration of FIR and court monitored investigation rejected. [Tehseen Poonawalla v. Union of India, (2018) 6 SCC 72]

Constitution of India — Arts. 226 and 32 — Scope of issuance of writ of quo warranto — Principles reiterated: As long as caste and income certificate is valid and in force, a writ of quo warranto cannot be issued on basis of assumptions, inferences and suspicions regarding fact of fulfilment of eligibility criteria. [Bharati Reddy v. State of Karnataka, (2018) 6 SCC 162]

Contract and Specific Relief — Performance of Contract — Time of Performance — Time of the Essence — Termination/Discharge/Compensation/Penalty for delayed performance: Government entered into power purchase agreement (PPA) with respondent contractor (successful bidder). Respondent got a term loan of Rs 267.37 crores and spent huge amounts to purchase 253 acres of land. Respondent completed project after a delay of only 16 days (claimed by respondent) disputed by appellant authorities. As per appellants 16 days’ delay was beyond extra time of 9 months permissible under PPA. Delay was due to resistance faced by project team like physical attacks at allotted site during land procurement. Said circumstance of delay though not force majeure, are unavoidable circumstances. In case of delay, Arts. 2.5 and 2.6 of agreement provide for penalty. By interim order, High Court direction for encashment of bank guarantee had been stayed subject to condition of restitution depending on outcome of case. Penalty of stated amount directed to be paid. Termination of contract, not proper. [M.P. Power Management Co. Ltd. v. Renew Clean Energy (P) Ltd., (2018) 6 SCC 157]

Criminal Procedure Code, 1973 — Ss. 340 and 195(1)(b)(i) — Perjury: As case of deliberate falsehood, not made out, initiation of prosecution for perjury in such case, not justified. Proceedings initiated under S. 340 CrPC r/w S. 195(1)(b)(i) CrPC, closed. [Chintamani Malviya v. High Court of M.P., (2018) 6 SCC 151]

Electricity Act, 2003 — Ss. 84(1) & (2) and Ss. 77, 85(2), (3), (5) & (6), 86(1)(f), 86, 112 and 113 and Statement of Objects and Reasons — State Electricity Commission: It is not mandatory that Chairman of State Commission should be a Judge but it is mandatory that there should be at least one person of law as a Member of the Commission, which requires a person, who is, or has been holding a judicial office or is a person possessing professional qualifications with substantial experience in the practice of law, who has the requisite qualifications to have been appointed as a Judge of the High Court or a District Judge. Consequential directions issued, but to apply prospectively. [State of Gujarat v. Utility Users’ Welfare Assn., (2018) 6 SCC 21]

Income Tax — Income: Amount received by assessee acting as a broker of Bank in trust, to be paid to certain parties on behalf of Bank, not income in the hands of assessee and not taxable. [CIT v. T. Jayachandran, (2018) 6 SCC 189]

Income Tax — Non-Residents/Offshore transactions — Permanent establishment (PE) in India — Relevance of — Arm’s length pricing i.e. where a non-resident compensates a Permanent Establishment (PE) at arm’s length price — Effect of: In this case, following the ruling in E-Funds IT Solution Inc., (2018) 13 SCC 294, held, once arm’s length price procedure has been followed, notice for the reassessment based only on the allegation that the appellant(s) has permanent establishment in India, cannot be sustained. [Honda Motor Co. Ltd. v. CIT, (2018) 6 SCC 70]

Industrial Disputes Act, 1947 — S. 9-A r/w Sch. IV Cl. 8 — Notice of change in any material terms of service to employee — Principles of Natural Justice — Compliance: Temporary decision to enhance age of superannuation of all Central Public Sector employees from 58 yrs to 60 yrs vide order dt. 19-11-1998 with a view to cut down losses, revoked vide order dt. 17-7-2002 and age of superannuation at 58 yrs restored without granting opportunity of hearing to employees, said order dt. 17-7-2002 was not sustainable. [Paradeep Phosphates Ltd. v. State Of Orissa, (2018) 6 SCC 195]

Labour Law — Workman: Employees working in canteen managed by a another party/contractor, providing canteen services to employees of establishment concerned, are entitled to be treated as employees of appellant with all attendant and monetary benefits on a par with regular employees. [Chennai Port Trust v. Industrial Employees Canteen Workers Welfare Assn., (2018) 6 SCC 202]

Transfer of Property Act, 1882 — Ss. 54, 7 and 8 — Sale of remaindermen’s interest during lifetime of holders of life estate: On partition between two brothers, certain properties including property in question coming to share of one I. On subsequent partition executed insofar as branch of I was concerned, the properties were equally divided among four sons of I. Having given ¼th share to each son, right of enjoyment of properties was retained by I and his wife M till their lifetime. In 1975, two sons of I i.e. K and S transferred their undivided share in property in question by executing registered sale deeds in favour of appellant herein. I and M died in 1975 and 1984 respectively. On basis of above sale deeds executed by K and S, appellant (in 1985) filed a civil suit seeking declaration that he was entitled to undivided half-share in property in question. Though K did not have any son, S had four sons, who were not made parties to above suit. Appellant later filed another suit seeking injunction against defendants named therein. In that suit, the four sons of S were added as parties. Trial court decreed former suit holding appellant to be entitled to one half-share in suit property and accordingly passed a preliminary decree in that behalf. However, it declining to grant any relief of permanent injunction against defendants, but, first appellate court held that since the four sons of S were not parties to suit for declaration and partition, insofar as branch of S was concerned, sale deed in favour of appellant would be valid only in respect of share of S. Thus, first appellate court held that appellant would be entitled to share of S in his branch (i.e. 1/4 × 1/6 = 1/24) and share of K. Resultantly, share of appellant was computed as 5/24. View taken by first appellate court was confirmed by High Court in second appeals. After going through the entirety of matter and relevant record, the Supreme Court held that assessment made by first appellate court and High Court, insofar as merits of matter was concerned, was proper and hence, no interference was called for. [A. Dharmalingam v. V. Lalithambal, (2018) 6 SCC 65]

Cases ReportedSupreme Court Cases

Constitution of India — Art. 32: In this case, there were 9 FIRs and one criminal complaint case between parties closely related to each other. Parties agreed to settle through mediation. As writ petition was dismissed, interim direction regarding deposit by petitioner into Registry of Court of specified amount, recalled. Resultantly, subsequent orders of refund adjustments, recalled. Resultantly petitioner also entitled to any interest accumulated thereon. [Saraswati Singh v. Shailesh Singh, (2018) 5 SCC 370]

Constitution of India — Art. 32 — Maintainability: In this case, there were 9 FIRs and one criminal complaint case between parties closely related to each other. During present proceedings parties referred to mediation but failed. Parties sought investigation by Special Investigation Team (SIT) and other reliefs relating to investigation. Allegedly a similar writ petition was withdrawn and 10 transfer petitions were dismissed. Hence, petition under Art. 32, held, not maintainable. Remedy of quashing of FIRs or such other relief can be addressed before High Court. [Saraswati Singh v. Shailesh Singh, (2018) 5 SCC 373]

Civil Procedure Code, 1908 — S. 100 — Second appeal — Substantial question of law: In the suit for partition and separate possession, unregistered partition deed (document) was relied on by defendants. Questions relating to admissibility and contents thereof, held, substantial questions of law. [Uma Pandey v. Munna Pandey, (2018) 5 SCC 376]

Advocates — Right to Practise — Right to practise law in India: Foreign law firms/companies or foreign lawyers cannot practise law in India either on litigation or on non-litigation side. [Bar Council of India v. A.K. Balaji, (2018) 5 SCC 379]

Criminal Procedure Code, 1973 — Ss. 482, 216, 173, 200 and 202 — Directions issued by High Court in petition filed under S. 482 in interest of justice: In this case of offence of attacking petitioner in courtroom in presence of Presiding Officer by Advocates, while several persons were attacked, charge-sheet was submitted by police against three of them only. Prayers were made before High Court in petition filed under S. 482 pertaining inter alia to inclusion of certain provisions of IPC and other Acts in charge-sheet filed against three persons before trial court, framing of proper charges against one and taking cognizance against another person, discovering all accused. High Court directed that if petitioner raises his grievance before trial Magistrate same shall be considered and decided by it in accordance with law expeditiously. Keeping in view manner in which offence was committed by Advocates who are also part of the system, High Court considered it necessary to issue certain directions regarding petitioner’s security. The Supreme Court held that High Court itself was cognizant of seriousness of allegations against persons involved in crime and made it clear that all contentions could be raised and all aspects will have to be considered by trial court on merits. Observation made by High Court will not come in way in pursuing criminal cases and for taking same to its logical end. [Osama Aziz v. State Of U.P., (2018) 5 SCC 415]

Criminal Procedure Code, 1973 — S. 195(1)(b)(ii) — Applicability of: S. 195(1)(b)(ii) is applicable only in case the offences enumerated therein have been committed with respect to a document after that document has been produced or given in evidence in a proceeding in any court i.e. during the time when that document was in custodia legis, and not prior thereto. [Chandru Gaonkar v. N.M. Dessai, (2018) 5 SCC 422]

Labour Law — Payment of Gratuity Act, 1972 — S. 2(e) r/w S. 2-A — Gratuity — Entitlement to: Having regularised services of appellant, State had no justifiable reason to deny benefit of gratuity to appellant which was his statutory right. Question as to from which date services were regularised was of no consequence for calculating total length of service for claiming gratuity once services were regularized. 1972 Act being welfare legislation meant for benefit of employees who serve their employer for long time, duty of State to pay gratuity to employee rather than deny benefit on some technical ground and force employee to approach Court to get his genuine claim. [Netram Sahu v. State of Chhattisgarh, (2018) 5 SCC 430]

Criminal Trial — Witnesses — Interested/Partisan witness — Evidence of interested witness — Admissibility: It is settled law that there cannot be any hard-and-fast rule that evidence of interested witness cannot be taken into consideration and they cannot be termed as witnesses but, the only burden that is cast upon courts in such cases is that courts have to be cautious while evaluating evidence to exclude possibility of false implication. Relationship can never be a factor to affect credibility of witness as it is not possible always to get an independent witness. [Sudhakar v. State, (2018) 5 SCC 435]

Consumer Protection — Services — Housing — Non-delivery of flat/house — Damages for price escalation — Reckoning date: Damages become due from time of breach but on facts, courts can deviate. In case of non-delivery of flat/house, and developer refusing alternative equivalent accommodation and buyer lacking means to purchase substitute from market, it would not be reasonable to assess damages from date of breach because of price escalation. [Fortune Infrastructure v. Trevor D’Lima, (2018) 5 SCC 442]

Trusts and Trustees — Religious and Charitable Endowments and Trusts — Administration of institutions — Claim of transfer to particular place based on station seniority and/or service seniority: Station seniority, held, has to be reckoned with reference to last date of the submission of application and not with reference to date of order of transfer. Eligibility must depend on that date, otherwise it would lead to arbitrary exercise of power. [V. Padmakumar v. S. Chandrasekharan Potty, (2018) 5 SCC 454]

Penal Code, 1860 — S. 302 or S. 304 Pt. I [S. 300 Exception 4]: In this case wife was strangulated death by husband. Incident occurred all of a sudden, without any premeditation. Accused did not take undue advantage or acting in cruel or unusual manner. Hence, conviction was rightly altered by High Court from S. 302 to S. 304 Pt. I. [State of M.P. v. Abdul Latif, (2018) 5 SCC 456]

Family and Personal Laws — Family Property, Succession and Inheritance — Will — Suspicious circumstances/Undue influence re making of will/Substance of will if arouses suspicion: In this case estator drew will in his own handwriting, in 1945 in favour of his grandson (respondent-plaintiff). PW 5 grandson-in-law of testator who used to correspond with him and thereby was well acquainted with his handwriting, duly proved said handwriting in will. PW 2 (bank clerk) deposed that respondent secured loan from bank by pledging will in 1964 and since then will kept in bank — PW 2 was cross-examined. On facts, it was held, there were no suspicious circumstances raising doubts about genuineness of will and concurrent findings by court below by reasoned judgments, not disturbed. [Mohan Lal v. Nand Lal, (2018) 5 SCC 459]

Government Contracts and Tenders — Formation of Government Contract — Modes of entering into a Government Contract — Public Auction/Tender: High Court cannot ordinarily interfere with judgment of expert consultant on issues of technical qualifications of a bidder when consultant takes into consideration various factors including basis of non-performance of the bidder. It is not open to Court to independently evaluate technical bids and financial bids of parties as an appellate authority for coming to its conclusion inasmuch as unless thresholds of mala fides, intention to favour someone or bias, arbitrariness, irrationality or perversity are met, where a decision is taken purely on public interest, Court ordinarily should exercise judicial restraint. [Municipal Corpn, Ujjain v. BVG India Ltd., (2018) 5 SCC 462]

Contempt of Court — Art. 129 — Civil Contempt — Contempt of Supreme Court: In this case there were violation of successive orders passed by Supreme Court in Civil Appeal, Contempt Petition and violation of undertakings was given to Supreme Court. In Civil Appeal No. 394 of 2009, while allowing appeal Supreme Court passed an order that Respondent D was to remove entire construction at her own cost and hand over vacant and peaceful possession of land to appellant within 30 days failing which appellant can take assistance of Court to take possession of land and building in which event, D will not be entitled to cost of structure or any other damages. It was held, conduct of Respondent D was contemptuous. She had earlier disobeyed injunction passed by Supreme Court and after filing first Contempt Petition No. 258 of 2010, had demolished construction raised by her and had given a solemn undertaking to Supreme Court that she would not raise any fresh construction nor would she use it for human habitation. Despite earlier order and undertaking, she had not only raised fresh construction but obviously used it for human habitation. Since D got off very lightly in earlier contempt proceedings, she feels that she can take law into her own hands. Reply filed by her virtually aggravates contempt, where she stated that she had not raised any construction in violation to orders of Supreme Court, is obviously false and even her counsel could not enlighten as to how construction, evident from photographs, which are not even denied, does not violate orders of Supreme Court. Not only that, with regard to signboard outside property informing general public that airconditioned and non-airconditioned rooms are were available for rent, explanation given is totally false No material was been placed on record to support averments made by D. Concluding that D had wilfully and knowingly disobeyed the interim order of Supreme Court. Not only that, she had also violated her solemn undertaking given to Supreme Court and the order passed by Supreme Court in earlier contempt proceedings. Therefore, she was held to be guilty of civil contempt. [Dwarika Prasad v. State of U.P., (2018) 5 SCC 491]

Constitution of India — Arts. 21 and 32 — Concept of fair trial, discussed — Transfer of trial when warranted, stated: Court should balance rights of accused and victims and thereafter weigh on scale of fair trial whether shifting is necessary or not. [Mohd. Akhtar v. State of J&K, (2018) 5 SCC 497]

Infrastructure Laws — Maritime Laws — Maritime claim: Maritime claim for charter hire dues i.e. a right in rem to proceed against the ship/cargo is not maintainable against a vessel/ship owned by a person not responsible for payment of such dues. [Sunil B. Naik v. Geowave Commander, (2018) 5 SCC 505]

Cases ReportedSupreme Court Cases

Advocates — Bar Councils and Associations — State Bar Councils — Free and fair elections: Order for constitution of Committee by Bar Council of India (BCI) to oversee elections to State Bar Council of Tamil Nadu and Puducherry, not interfered with. Said Committee consisted of retired Chief Justices/Judges of various High Courts. [Ajayinder Sangwan v. Bar Council of Delhi, (2018) 2 SCC 770]

Advocates — Bar Councils and Associations — State Bar Councils — Free and fair elections — Schedule for elections — Compliance with directions of Court: BCCI having finalized schedule for election in respective State Bar Councils (as on date of present order, that is, 5-2-2018), contempt petition against BCI, dismissed. [Ajayinder Sangwan v. K.K. Mohan, (2018) 2 SCC 774]

Advocates — Bar Councils and Associations — State Bar Councils — Free and fair elections — Directions: Elections directed to be held on basis of provisional electoral rolls pending verification of Law degrees. All advocates who submitted applications along with Law degrees for verification be enrolled and shown in electoral list. Of course degrees already verified and found false and fake would be excluded from electoral list. Clarified that said electoral list and result of election would be subject to final decision of Court. Universities directed to expeditiously verify said degrees. Appropriate action would be taken against false and fake degrees after verification. Order in Ajayinder Sangwan, (2018) 2 SCC 780, modified accordingly. [Ajayinder Sangwan v. Bar Council of Delhi, (2018) 2 SCC 776]

Advocates — Election to Bar Councils — Verification of members of Bar Council and/or Bar Association: State Bar Council requested permission for conducting immediate elections as term had expired long back while BCI emphasised need of verification of candidates to eliminate fake lawyers to ensure that deserving practising advocates were elected. To do complete justice following directions issued: (i) BCI and State Bar Councils to grant time to advocates to cure defective applications and submit verified degrees within stipulated time whereafter State Bar Councils to publish final electoral rolls; (ii) BCI to declare election schedule in respective State Bar Councils thereafter. [Ajayinder Sangwan v. Bar Council of Delhi, (2018) 2 SCC 780]

CENVAT Credit Rules, 2004 — S. 2(l), as effective from 1-3-2008 — Availing of CENVAT credit in respect of service tax paid on transportation of goods from factory to the place of purchaser — Impermissibility of: Post amendment, “input services” include those services which are used by the manufacturer, in or in relation to the manufacture of final products and clearance of final products “up to the place of removal”. Thus, it is only “up to the place of removal” that service is treated as input service. Therefore, the benefit which was admissible even beyond the place of removal now gets terminated at the place of removal and doors to the CENVAT credit of input tax paid gets closed at that place. [CCE v. Ultra Tech Cement Ltd., (2018) 2 SCC 721]

Evidence Act, 1872 — Ss. 3 to 9, 65-A, 65-B and 62 — Electronic evidence — Standard of proof, authenticity and admissibility — Law summarized: Ss. 65-A and 65-B of the Evidence Act, 1872, cannot be held to be a complete code on the subject. Threshold admissibility of electronic evidence cannot be ruled out on any technicality if same is relevant. Its authenticity and procedure for its admissibility may depend on fact situation such as whether person producing such evidence is in a position to furnish certificate under S. 65-B(4). If party producing electronic evidence is not in possession of device from which electronic document was produced, then such party, held, cannot be required to produce certificate under S. 65-B(4) of the Evidence Act. Requirement of certificate under S. 65-B(4) being procedural, can be relaxed by court wherever interest of justice so justifies. Thus, requirement of certificate under S. 65-B(4) is not always mandatory. [Shafhi Mohammad v. State of H.P., (2018) 2 SCC 801]

Karnataka Value Added Tax Act, 2003 (32 of 2004) — Ss. 2(36), 2(34) and 2(35) — Computation of taxable turnover — Deductions — Entitlement to: Giving benefit of discount at a point of time subsequent to original sale/purchase, held, is a regular trade practice and therefore qualifies for deduction. All regular trade discounts are allowable as permissible deductions if proper proof is shown. Assessee must establish from accounts that the discount relates specifically to sales with reference to which it is allowed. Therefore, R. 3(2)(c) proviso has to be read down to make it workable so that object of providing deductions on account of trade discount is not defeated. Therefore, language of R. 3(2)(c) proviso cannot be construed to mean that discount would be inadmissible as a deduction unless tax invoice pertaining to the goods originally issued shows said discount. [Maya Appliances (P) Ltd. v. CCT, (2018) 2 SCC 756]

Kerala Cooperative Societies Act, 1969 (21 of 1969) — Ss. 2(i), 69 and 70 (as amended by Amending Act 1 of 2000 w.e.f. 2-1-2003) r/w S. 10, Industrial Disputes Act, 1947: Jurisdiction of Labour Court under ID Act to decide service disputes between cooperative society’s employee and employer, not barred by Ss. 69 and 70. KCS Act as well as ID Act both possess concurrent jurisdiction to decide any service dispute arising between cooperative society’s employee and his/her employer (cooperative society). Further held, it is choice of employee concerned to choose any one forum out of two forums available under two Acts to get service dispute decided which is however, subject to satisfying test laid down under ID Act that employee concerned is a “workman”, dispute raised is “industrial dispute” and cooperative society (employer) is “industry” as defined under ID Act. [K.A. Annamma v. Cochin Coop. Hospital Society Ltd., (2018) 2 SCC 729]

Maharashtra Regional and Town Planning Act, 1966 (37 of 1966) — Ss. 49, 50, 126 and 127 — Areas reserved for acquisition — Delay in acquisition procedure — Right of dereservation — Procedure of dereservation: In this case, purchase notice under S. 49 had been given earlier and was confirmed by authorities but no purchase notice under S. 127 had been given after lapse of 10 yrs from date of publication of plan, hence, exercising jurisdiction under Art. 142 of the Constitution to do complete justice, it was declared and held that reservation of appellant’s land had lapsed. However, it was clarified that in all future cases, a second purchase notice must be served under S. 127 after lapse of 10 yrs (even if it has been served under S. 49 earlier) in order that lapsing can take place under S. 127. [Chhabildas v. State of Maharashtra, (2018) 2 SCC 784]

Motor Vehicles Act, 1988 — Ss. 166 and 168 — Fatal accident — Compensation — Future prospects: In this case, 42 yrs old self-employed deceased was in business of cable networks. Tribunal awarded Rs 30,26,810 with interest at 9% p.a. factoring in a 30% towards loss of future prospects. The Supreme Court held that following principle laid down in judgment of Five-Judge Bench in Pranay Sethi, (2017) 16 SCC 680, for deceased who was self-employed, future prospects cannot be denied and since deceased was 42 yrs of age, an addition of 25% on ground of future prospects would be warranted instead of 30% computed by Tribunal. Tribunal’s calculation of annual income based on income tax returns for 2010-2011, 2011-2012 and 2012-2013 being Rs 1,81,500, adding a component of 25% for future prospects to get Rs 2,26,875 and deducting one-fourth towards personal expenses, loss of dependency per annum works out to Rs 1,70,156. Applying multiplier of 14, total loss of dependency at Rs 23,82,187 then adding Rs 3,14,335 towards medical expenses. An addition of Rs 70,000 in terms of Pranay Sethi case for conventional heads of loss of estate (Rs 15,000), loss of consortium (Rs 40,000) and funeral expenses (Rs 15,000). Total compensation quantified at Rs 27,66,522 with interest @ 9% p.a. from date of filing of claim petition. Apportionment directed to be carried out in terms of award of Tribunal. [Reliance General Insurance Co. Ltd. v. Shalu Sharma, (2018) 2 SCC 753]

Motor Vehicles Act, 1988 — Ss. 166, 168 and 173 — Compensation: Adding future prospects to established income of deceased while determining compensation, must be done in all cases as per ruling of five-Judge Bench in Pranay Sethi, (2017) 16 SCC 680. [Munusamy v. T.N. STC (Villupuram) Ltd., (2018) 2 SCC 765]

Rent Control and Eviction — Revision — Jurisdiction as to — Nature and scope — Power to interfere with finding of fact: Appellant herein i.e. owner of shops in question filed eviction petitions relating to said shops against respondent tenants herein under Rent Act concerned on ground that those shops were in dilapidated condition and could not be repaired/reconstructed without evicting tenants. Rent Controller, after going through reports and evidence of expert witnesses produced by both sides, dismissed said petitions opining that appellant was not able to prove that shops were in dilapidated condition. Said finding was affirmed by Appellate Authority. It was held by the Supreme Court that the view taken by courts below was a plausible view which could not be said to be perverse. Hence, High Court in exercise of its limited revisional jurisdiction rightly declined to interfere with such view of courts below. Contention of appellant that Appellate Authority and High Court failed to consider certain subsequent event alleged by him before those courts to fortify his case as to dilapidated condition of shops, held, not tenable as there was nothing on record to show that such contention was raised before said courts. [Surinder v. Nand Lal, (2018) 2 SCC 717]

Cases ReportedSupreme Court Cases

Arbitration Act, 1940 — Ss. 31(4), 30 and 33 r/w Ss. 14(2) and 2(c) — Filing award to make it rule of court and to entertain objections to award — Proper court for: Supreme Court may make a reference to an arbitrator on consent but to hold it as a legal principle that it can also entertain objections as the original court will invite a fundamental fallacy pertaining to jurisdiction. When an arbitrator is not appointed under the Act and the matter is challenged before the High Court or, for that matter, the Supreme Court and, eventually, an arbitrator is appointed and some directions are issued, it will be inappropriate and inapposite to say that the superior court has the jurisdiction to deal with the objections filed under Ss. 30 and 33. [State of Jharkhand v. Hindustan Construction Co. Ltd., (2018) 2 SCC 602]

Civil Procedure Code, 1908 — Or. 5 Rr. 20(1) & (1-A) and 17 — Service of summons — Substituted service: Substituted service under Or. 5 R. 20 of CPC is an exception to normal mode of service. For ordering substituted service under said provision, court is required to be satisfied that: (i) there is reason to believe that defendant is keeping out of the way for purpose of avoiding service, or (ii) for any other reason, the summons cannot be served in ordinary way. Thus, while making that order, court must apply its mind to requirements under Or. 5 R. 20 of CPC and indicate in its order due consideration of provisions contained in Or. 5 R. 20. [Neerja Realtors (P) Ltd. v. Janglu, (2018) 2 SCC 649]

Constitution of India — Art. 51-A(a) and Preamble — Duty to show respect to national symbols i.e. National Flag and National Anthem: When National Anthem is played or sung, due respect as salutation to motherland should be shown by standing up and proper decorum should be maintained, except where a person is differently abled. It is now not mandatory to play National Anthem before starting of film but if National Anthem is played in cinema halls prior to showing of films, it is mandatory for audience to stand up in respect. However, if National Anthem is played as part of storyline of a feature film or newsreel or documentary, audience need not stand up. [Shyam Narayan Chouksey v. Union of India, (2018) 2 SCC 574]

Constitution of India — Arts. 51-A(g), 51-A(h), 14, 21, 29, 48 and Sch. VII List III Entry 17: Issue in these petitions is that whether Prevention of Cruelty to Animals (Tamil Nadu Amendment) Act, 2017, which received Presidential assent on 31-1-2017, is valid and enjoys constitutional protection? Whether defects pointed out in earlier judgments in A. Nagaraja, (2014) 7 SCC 547 and Animal Welfare Board, (2017) 2 SCC 144, can be said to have been removed? In an earlier judgment and review petition filed thereagainst Jallikattu festival was banned as unconstitutional. Hence, matter referred to Constitution Bench. [Animal Welfare Board of India v. Union of India, (2018) 2 SCC 645]

Consumer Protection Act, 1986 — Ss. 12, 13, 14, 22 and 22-C — Request for hearing before Circuit Bench of National Commission — Proper disposal of: Appellants received notice from National Commission and, thereafter, reply was sent on 25-7-2014 praying that matter may be heard in Camp Sitting of National Commission at Bengaluru. Ex parte order passed by National Commission in present cases, based on compromise made by appellant with another consumer, not proper. Copies of orders passed on record does not show that appellants were ever informed that their request for having matter heard at Bengaluru was either accepted or rejected. Therefore, National Commission erred in not issuing fresh notice to appellants. Order of National Commission set aside and matter remitted to it for hearing same on merits. [Mangalam Homes & Resorts (P) Ltd. v. Joy Kaliyavumkal, (2018) 2 SCC 636]

Education Law — Allotment of seats/Counselling for reserved category students/Vacancies/Dereservation — Admission to medical courses: Meritorious Reserved Candidate (MRC) who is treated as general category candidate, may opt for reserved category seat to gain admission in college of his preference. However, for computing percentage of reservation such MRC will be deemed to have been admitted as open category candidate i.e. there is no migration in reserved category. Consequently, one reserved category candidate would be adjusted against the one general category seat vacated by such MRC in lieu of one reserved category seat taken up by MRC. Thus, reservations will not exceed 50%. [Tripurari Sharan v. Ranjit Kumar Yadav, (2018) 2 SCC 656]

Education Law — Medical and Dental Colleges — Affiliation/Recognition — Renewal of — 4th Renewal (fifth batch of MBBS course) for academic year 2017-2018: As there was deficiency of faculty and residence exceeding 5% during surprise inspection, order of Central Government rejecting renewal for academic year 2017-2018, not interfered with. Bank guarantee deposited should be used while considering renewal for next academic year. [IQ City Foundation v. Union of India, (2018) 2 SCC 593]

Insolvency and Bankruptcy Code, 2016 — Ss. 8 and 9 — Demand notice through Advocate — Validity of: Had the legislature wished to restrict the demand notice being sent by the operational creditor himself, the expression used would perhaps have been “issued” and not “delivered” and that delivery, therefore, would postulate that such notice could be made by an authorised agent. Further, the requirement of appending signatures of persons “authorised to act” on behalf of the operational creditor in the demand notice as well as the application under S. 9 of 2016 Code in terms of Form 3 and 5 of Rules also reflects similar understanding of the draftsman of the Adjudicatory Authority Rules. Also, on a conjoint reading of S. 30 of the Advocates Act, 1961 dealing with the fundamental right under Art. 19(1)(g) of the Constitution to practice one’s profession and Ss. 8 and 9 of 2016 Code together with the Adjudicatory Authority Rules and Forms, such notice sent on behalf of an operational creditor by Advocate, held, is valid. [Macquarie Bank Ltd. v. Shilpi Cable Technologies Ltd., (2018) 2 SCC 674]

Land Acquisition Act, 1894 — Ss. 16, 17, 23 and 48 — Incapacity of State to entertain claim for reconveyance of acquired land on any ground whatsoever to original owner after it has vested in State: Reiterating and following V. Chandrasekaran, (2012) 12 SCC 133 and Natural Resources Allocation, In re, (2012) 10 SCC 1, it was held, High Court was justified in holding that regrant of land is not permissible. It is a different matter if there is policy for rehabilitation for persons displaced by land acquisition, in case such persons are rendered landless. If land acquired for public purpose is no longer needed for such purpose, State can transfer such land but such disposal is regulated by doctrine of public trust. Thus, apart from appellants having not been found entitled to regrant of acquired land, regrant policy itself is against Art. 14 of the Constitution. Disposal of property vested in State can only be in manner consistent with Art. 14 of Constitution of India. [Mansukhbhai Dhamjibhai Patel v. State of Gujarat, (2018) 2 SCC 642]

Land Acquisition Act, 1894 — Ss. 23, 18 and 54 — Compensation — Computation of — Land with fruit trees: According to respondent owner, 396 fruit trees were standing on acquired land they were of orange 28, peach 76, mausambi 135 and mango 157. Collector awarded total compensation of Rs 37,321.12 including 30% solatium and 12% increase in respect of such fruit trees. Expert examined by Respondent owner, reported total value of all trees as Rs 6,35,114.70 with certain other factors such as distance of land from town, etc., also found fruit trees to be of “B” category. Respondent in his deposition stated about 250 fruit trees including amrood, orange and mango, all about 4 to 5 yrs old. Patwari examined on behalf of appellant State deposed that in 1985-1986, wheat and other crops were sown and subsequently word orchard added in land without any order from competent authority. Valuation of expert examined by State is far less than valuation provided by expert on behalf of respondents and he also stated that there was no irrigation facilities and further deposed that there could be 90 fruit trees in one killa (equal to one acre). The Supreme Court held that if, only 90 fruits trees can be planted in one killa (one acre), there could not be 250 trees or 396 trees in 7 kanals and 2 marlas of land (which is less than one acre). It is clear that High Court has overlooked certain material aspects of evidence before coming to conclusion and needs to consider entire material in proper perspective afresh. Hence, matter remitted to High Court for fresh disposal in accordance with law. [State of Punjab v. Thuru Ram, (2018) 2 SCC 639]

Rent Control and Eviction — Revision — Revisional jurisdiction of High Court under S. 25 of Provincial Small Cause Courts Act, 1887: Though jurisdiction of High Court under S. 25 is wider than revisional jurisdiction under S. 115 CPC but pure finding of fact based on appreciation of evidence cannot be interfered with in exercise of jurisdiction under S. 25 unless such findings are perverse or based on no material or have been arrived at by taking into consideration inadmissible evidence or without considering relevant evidence. [Trilok Singh Chauhan v. Ram Lal, (2018) 2 SCC 566]

Service Law — Pay — Pay scale — Revised pay scale — Interest: Direction to pay revised pay scale along with 12% interest, not proper. [State of U.P. v. Israr Ahmad, (2018) 2 SCC 672]

Trusts and Trustees — Religious and Charitable Endowments and Trusts — Temple — Private or public — Determination of: As extract of entry in Register of Endowments of Government, prepared by following prescribed procedure, produced on behalf of respondent Department, significant for holding suit temple as public temple, more so in view of rebuttable presumption under S. 114 Ill. (e) of Evidence Act but in view of oral evidence adduced by parties being equally balanced; persistent stand of appellants, countering respondents’ claim, that their father (deceased) had not endowed suit premises to render suit temple as public temple and that they had not received any notice from Endowments Department in connection therewith and attending facts and circumstances, held, parties should be granted an opportunity to adduce all evidence for final and conclusive decision. Accordingly, appellants directed to file representation before authority concerned in support of their claim that suit temple and its premises are their private property. [Vijendra Kumar v. A.P. Charitable & Religious Institutions & Endowment Dept., (2018) 2 SCC 555]

U.P. Consolidation of Holdings Act, 1953 (5 of 1954) — Ss. 9-A, 11, 45 and 48 — Ascertainment of possession: Authorities could not have made entries in favour of appellant objectors without giving public notice and without giving notice to legal heirs of deceased. Hence, High Court was justified in holding that revenue authorities ascertained possession without giving public notice. However, High Court could not have issued directions to authorities to remove names of both parties. Therefore, matter remanded to revenue authorities to ascertain possession of suit lands after hearing both parties. [Jagtar Singh v. State of Uttarakhand, (2018) 2 SCC 647]

Cases ReportedSupreme Court Cases

Civil Procedure Code, 1908 — Or. 41 Rr. 23, 23-A & 25 and Or. 5 — Remand for fresh trial on merits: As there was legal infirmity in not serving notice on all defendants, order of remand was justified. [Jayaprakash v. T.S. David, (2018) 2 SCC 294]

Civil Procedure Code, 1908 — Or. 6 R. 17 and Or. 7 R. 14 — Applications for amendment of pleadings and for production of documents — When may be allowed: In respect of application under Or. 6 R. 17, held, (i) when suit is still at initial stage that is when trial has not yet begun; (ii) where proposed amendment would not change nature of cause of action; (iii) where applications are not filed at belated stage; under these circumstances, courts should be liberal in allowing proposed amendment. Concerning Or. 7 R. 14 application, held, application for production of document(s) can be considered (i) when trial is at initial stage, and trial is yet to begin; and (ii) when application not filed at belated stage. [N.C. Bansal v. U.P. Financial Corpn., (2018) 2 SCC 347]

Constitution of India — Art. 226 — Habeas corpus — Custody of child — Inter-country dispute: Manner in which habeas corpus jurisdiction is to be exercised i.e. when question is one of immediate restoration of custody/ repatriation of child, as distinguished from wardship jurisdiction in which question is one of entitlement in law to custody of child, discussed. India is a non-signatory to international convention viz. Civil Aspects of International Civil Abduction. Welfare of child is predominant criterion. If considerable time has elapsed between removal of child from native country by any parent and steps taken for repatriation by writ petitioner parent, court would prefer an elaborate enquiry into all relevant aspects bearing on the child. Immediate restoration of child is called for only on an unmistakable discernment of the possibility of immediate and irremediable harm to it and not otherwise. Unless continuance of the child in the country to which it has been removed, is unquestionably harmful, when judged on the touchstone of overall perspectives, perceptions and practicabilities, it ought not to be dislodged and extricated from the environment and setting to which it had got adjusted for its well-being. [Prateek Gupta v. Shilpi Gupta, (2018) 2 SCC 309]

Consumer Protection — Consumer Forums — Generally — Inadequacy of Members/Presiding Officers, Resources and Infrastructure: As there is poor organisational set-up, grossly inadequate infrastructure, absence of adequate trained manpower, lack of transparency in selection process, absence of criteria of selection process, anomalous situation arising from service conditions of members of Consumer For a, directions were issued to frame rules by order dt. 21-11-2016 in All U.P. Consumer Protection Bar Assn., (2017) 1 SCC 444, to Union Government, State Governments and to National Commission as provided in Consumer Protection Act, 1986, reiterated. Further directions issued on 7-3-2017 after perusal of proposed Rules and Regulations, reiterated. However, in view of need for certain modifications in Rules and Regulations, which require further debate and deliberation, time granted and other directions also issued. [State of U.P. v. All U.P. Consumer Protection Bar Assn., (2018) 2 SCC 225]

Criminal Procedure Code, 1973 — S. 102(1): “Any property” includes any bank account creating suspicion about commission of an offence. Investigating officer (IO) in course of investigation has power to seize or prohibit operation of bank account of any person which may be found under circumstances creating suspicion of commission of any offence. Bank account need not be only of accused but can be any account creating suspicion about commission of offence. Even if name of a body/person with which accused concerned has an association (a trust in present case), is not included as accused in FIR but during investigation IO believes that persons named as accused are actively associated with that trust, and, that circumstances emerging from transaction(s) done by them from bank accounts pertaining to that trust create suspicion of commission of offence, IO can exercise his discretion to issue directions to seize those accounts. [Teesta Atul Setalvad v. State of Gujarat, (2018) 2 SCC 372]

Criminal Procedure Code, 1973 — S. 386 — Powers of appellate court in dealing with appeals: Principles summarised regarding powers of appellate court in dealing with appeals to direct retrial. [Issac v. Ronald Cheriyan, (2018) 2 SCC 278]

Education Law — Professional Colleges/Education — Engineering or Technical Colleges or MBA — AICTE Role and Duties — Technical education: Due to invalidation of degrees in Engineering by Court in Rabi Shankar Patro, (2018) 1 SCC 468, directions issued on clarifications of judgment regarding chance to prove merit to validate it by re-clearing Engineering exams under proper conditions. [Orissa Lift Irrigation Corpn. Ltd. v. Rabi Sankar Patro, (2018) 2 SCC 298]

Narcotic Drugs and Psychotropic Substances Act, 1985 — S. 20 — Search and seizure: In this case of alleged recovery of contraband (charas) from gunny bags being carried by respondent-accused, High Court reversed conviction of respondents under S. 20. The Supreme Court held that going by number of discrepancies in prosecution case coupled with contradictory statements by prosecution witnesses, entire prosecution story is vitiated and leads to discrediting its version. Prosecution failed to establish commission of alleged offence by respondents beyond reasonable doubt. Evidence is scanty and lacking support to establish that contraband was really recovered from possession of respondents in the manner alleged by prosecution. The law, the court should follow, for awarding conviction under provisions of NDPS Act, is, “more stringent the punishment stricter the proof”. In such cases, prosecution evidence has to be examined very zealously so as to exclude every chance of false implication but, herein, prosecution story cannot be believed to award conviction to respondents. Accused deserve benefit of doubt. Therefore, reversal of conviction of respondents by High Court, confirmed. [State of H.P. v. Trilok Chand, (2018) 2 SCC 342]

Narcotic Drugs and Psychotropic Substances Act, 1985 — Ss. 54, 35, 20(b)(ii)(C), 42 and 50 — Search and seizure: NDPS Act provides for a reverse burden of proof upon accused, contrary to normal rule of criminal jurisprudence for presumption of innocence unless proved guilty. This however does not dispense with requirement of prosecution to having first establish a prima facie case, only whereafter, burden will shift to accused. Mere registration of a case under NDPS Act will not ipso facto shift burden on to accused from the very inception. Compliance with statutory requirements and procedures shall have to be strict and scrutiny stringent. If there is any iota of doubt, benefit shall have to be given to accused. [Gorakh Nath Prasad v. State of Bihar, (2018) 2 SCC 305]

Penal Code, 1860 — Ss. 306 and 498-A — Bride committed suicide by consuming rat poison: As due to harassment by husband and in-laws for not bringing dowry, bride committed suicide by consuming rat poison. High Court upheld conviction of two appellant-accused (mother-in-law and husband) under Ss. 306 and 498-A. Validity of the conviction and sentence, affirmed. [Anusuiya v. State of M.P., (2018) 2 SCC 272]

Rent Control and Eviction — Eviction Suit/Trial: In eviction suit filed by landlord, only landlord and tenant are necessary parties. Landlord is required to plead and prove only two things (i) existence of relationship of landlord and tenant between parties; and (ii) grounds of eviction mentioned under relevant rent law. When these two things proved, eviction suit succeeds. Title of landlord in eviction suit is not relevant. If landlord fails to prove his title but proves relationship of landlord and tenant, and proves existence of any ground pleaded for eviction then his suit would succeed. On the other hand, if landlord proves his title but fails to prove relationship of landlord and tenant, then his suit would fail. Plaintiff or petitioner in proceedings, being dominus litis, cannot be compelled to implead any third party to proceedings unless that third party proves that he is necessary party and without his presence suit cannot be proceed and nor can be decided effectively. If there are more than one owners to suit premises, then any one of them can file eviction suit against tenant. It is not necessary that all owners should file suit jointly. In eviction suit, question of title or extent of shares of co-owners in suit premises cannot be decided and nor can it be made subject-matter of determination. Eviction proceedings are not concerned with respective rights of co-owners. These proceedings are concerned about eviction of tenant from suit premises. [Kanaklata Das v. Naba Kumar Das, (2018) 2 SCC 352]

Service Law — Recruitment Process — Examination — Re-evaluation — Correctness of answer key — Scope of judicial review: Court can recommend preventive measures such as (i) establishing a system of moderation; (ii) avoid any ambiguity in the questions, including those that might be caused by translation; and (iii) prompt decision be taken to exclude suspect question and no marks be assigned to such question. If a statute, Rule or Regulation permits re-evaluation of an answer sheet or scrutiny of an answer sheet as a matter of right, then it must be permitted. If not, court may also permit it only if it is demonstrated very clearly, without any inferential process of reasoning or by a process of rationalisation and only in rare or exceptional cases that a material error has been committed. Onus is on candidate to demonstrate such clear and material incorrectness of answer key. Court should be extremely reluctant to substitute its own views against views of experts. Court should never take upon itself task to re-evaluate the answer sheets. Importantly, sympathy or compassion does not play any role in the matter of directing or not directing re-evaluation of an answer sheet. If an error is committed by the examination authority, the complete body of candidates suffers. The entire examination process does not deserve to be derailed only because some candidates are disappointed or dissatisfied or perceive some injustice having been caused to them by an erroneous question or an erroneous answer. All candidates suffer equally, though some might suffer more but that cannot be helped since mathematical precision is not always possible. There must be finality to results of public examination. Litigation cannot not go on for years. [Ran Vijay Singh v. State of U.P., (2018) 2 SCC 357]

Specific Relief Act, 1963 — S. 21 — Compensation in lieu of specific performance: Vendee under agreement to sell entitled to compensation in lieu of specific performance, where agreement to sell of immovable property becoming incapable of being performed due to acquisition of that property by Government under LA Act, 1894 paid by State for acquisition. [Urmila Devi v. Mandir Shree Chamunda Devi, (2018) 2 SCC 284]

Town Planning — Slum Rehabilitation/Development — Slum rehabilitation scheme: Due to inordinate delay in completion of Scheme, despite change of developer by SRA, change in scheme and building norms, builder gaining advantage of higher Floor Space Index (FSI), replacement of developer directed in terms below. SRA directed to invite, through advertisement, letters of intent from renowned builders/developers, who have capacity and experience to take up such a large project. Manner of advertisement, also stated. SRA also directed to take a bank guarantee of Rs 200 crores from successful builder. Developers/builders should indicate what benefit in kind or portion of their own free sale area they are prepared to part with for society of slumdwellers as slum-dwellers are owners of land. [Susme Builders (P) Ltd. v. Slum Rehabilitation Authority, (2018) 2 SCC 230]

Cases ReportedSupreme Court Cases

Arbitration and Conciliation Act, 1996 — Ss. 31(7)(a) and (b) — Challenge to award of interest for pre-reference period, pendente lite and post reference period — Waiver of, when may be inferred: If a plea is available, whether on facts or law, it has to be raised by the party at appropriate stage in accordance with law and if not raised or/and given up with consent, the party would be precluded from raising such plea at a later stage of the proceedings on the principle of waiver. [Union of India v. Susaka (P) Ltd., (2018) 2 SCC 182]

Civil Procedure Code, 1908 — Or. 6 R. 17 proviso — Proviso barring entertainment of application for amendment of pleadings after commencement of trial — Trial when commences: After framing of issues, the case was fixed for recording of evidence of plaintiff, but instead of producing evidence, plaintiff took adjournment and in meantime he filed application under R. 17. Plaintiff led evidence thereafter. According to plaintiff, he led evidence even on amended pleadings; hence, the Court held that amendment application deserved to be allowed. [Mohinder Kumar Mehra v. Roop Rani Mehra, (2018) 2 SCC 132]

Constitution of India — Art. 227 — Supervisory jurisdiction of High Court under — Nature and scope of: Supervisory jurisdiction of High Court under this section is confined only to see whether inferior court or tribunal has proceeded within the parameters of its jurisdiction. In exercise of jurisdiction under Art. 227, High Court does not act as an appellate court or tribunal and, therefore, cannot review or reassess the evidence upon which the inferior court or tribunal passed the order assailed before it. Thus, where trial court in the considered exercise of its jurisdiction under Or. 6 R. 17 CPC allowed amendment of written statement, interference with that order by High Court under Art. 227 entering upon merits of the case sought to be set up by appellant-defendant in amendment, held, was impermissible. [Raj Kumar Bhatia v. Subhash Chander Bhatia, (2018) 2 SCC 87]

Constitution of India — Arts. 21, 14, 15 and 32 — Gender equality and gender sensitivity: Ordinary criminal law proceeds on gender neutrality but concept of gender neutrality seems to be absent in S. 497 as prima facie a charge of adultery under S. 497 IPC cannot be brought against an erring woman but only against an erring man, when fact remains that both should have been liable for the criminal offence. Secondly, it is doubtful whether the erring woman should be presumed as a victim in all circumstances but such a presumption seems to have been there in S. 497 IPC on basis of which earlier judgments have upheld it. Thirdly, language of S. 497 IPC tantamounts to subordination of woman and affects her independent identity when offence thereunder is destroyed if consent or connivance of husband is established. Fourthly, time has come when society must realise that a woman is equal to a man in every field. S. 497 IPC prima facie seems to be quite archaic. In view of change in position and rights of women, validity of S. 497 IPC and S. 198(2) CrPC, though upheld by earlier judgments, requires reconsideration at present. [Joseph Shine v. Union of India, (2018) 2 SCC 189]

Contract and Specific Relief — Termination/Discharge of Contract — Termination/Repudiation for Breach of Contract: District Forum had not properly appreciated scope and ambit of insurance policy. Violation of carrying passengers in goods vehicles, has consistently been held not to be a fundamental breach. To avoid its liability, Insurance Company must not only establish defence that policy has been breached, but must also show that breach of policy is so fundamental in nature that it brings contract to an end. Driver giving a lift to some passengers may be a breach of policy, but it cannot be said to be such a fundamental breach as to bring insurance policy to an end and to terminate insurance policy. [Manjeet Singh v. National Insurance Co. Ltd., (2018) 2 SCC 108]

Criminal Procedure Code, 1973 — S. 91 — Summons to produce document or other thing: Invocation of S. 91 by accused, at the stage of framing of charge dehors satisfaction of court. For exercising such power, court has to be satisfied, that material available with investigator, not made part of charge-sheet has crucial bearing on issue of framing of charge. [Nitya Dharmananda v. Gopal Sheelum Reddy, (2018) 2 SCC 93]

Criminal Trial — Circumstantial Evidence — Inference of guilt — When can be drawn, in a case based on circumstantial evidence: In a case based on circumstantial evidence, circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. Those circumstances must be conclusive in nature unerringly pointing towards guilt of accused. Moreover, all circumstances taken cumulatively should form a complete chain and there should be no gap left in the chain of evidence. Further, proved circumstances must be consistent only with hypothesis of guilt of accused and totally inconsistent with his innocence. [State of H.P. v. Raj Kumar, (2018) 2 SCC 69]

Drugs and Cosmetics Act, 1940 — S. 26-A r/w S. 5 and Ss. 33, 33-EED and 33-N — Prohibition of certain fixed dose combinations (FDCs) by Central Government without prior consultation with Drugs Technical Advisory Board (DTAB) — Validity of: DTAB is only an advisory body and it would be desirable for the Central Government to take its advice on technical matters arising out of the administration of the Drugs Act, but this does not lead to the conclusion that if such advice is not taken, power under S. 26-A cannot be exercised. Further, S. 26-A was brought in by an amendment in 1982 which specifically made changes in Ss. 33 and 33-N and in which it added the words “on the recommendation of the Board”. However, S. 26-A does not refer to and, therefore, mandate any previous consultation with the DTAB. So long as the Central Government’s satisfaction can be said to be based on relevant material, it is not possible to say that not having consulted the DTAB, the power exercised under S. 26-A would be non est. [Union of India v. Pfizer Ltd., (2018) 2 SCC 39]

Environment Law — Development vis-à-vis Ecology: National, Urban and Rural Development — Urban Ecology/Green Areas/Belt/Town Planning/Urban Environmental Balance — Change in Land Use/Unauthorised Construction/Commercial/Industrial Establishments in Residential Premises: Sealing commenced pursuant to directions of Court. Appeals before statutory Appellate Tribunal were filed under Delhi Laws (Special Provisions) Act, 2006. IAs before Court were transferred to Appellate Tribunal. Where such IAs or appeals were not filed, 30 days’ time had been given to approach Appellate Tribunal. Regarding those who have not filed IAs, nor preferred appeal within 30 days like pesent applicants, authorities were directed to deseal residential premises of said applicants on certain terms and conditions (upon payment of costs imposed for delay in approaching Court). Further directed that if Monitoring Committee is satisfied, said premises can be desealed. If not, applicants directed to approach Supreme Court. Similar procedure to be followed for persons who have not yet approached Court or Appellate Tribunal. It was clarified that said order is only for premises sealed at the instance of Monitoring Committee. Further clarified that said relief and procedure is only for residential premises which were put to commercial non-industrial usage. [M.C. Mehta v. Union of India, (2018) 2 SCC 144]

Environment Law — Environmental Clearance/NOC/Environment Impact Assessment — Specific Clearances — Water/Coastal Areas — Housing project: When project was at first considered to be valid, later contradiction by authorities at a late stage, without credible evidence, held, not fair to DLF (builder) and impermissible. Such approach if permitted would cause grave uncertainty. Instead, direction of fine of Rs 1 crore with the direction for strict adherence to the norms in future and avoidance of such contradictions by the authorities, upheld. [Kerala State Coastal Management Authority v. DLF Universal Ltd., (2018) 2 SCC 203]

Family and Personal Laws — Guardians and Wards — Custody of Child/Minor — Visitation Rights: In this custody case of major daughter (18 yrs as on 19-9-2016) and minor son, lower court gave custody to father living in Kuwait and visitation rights to mother staying in Thiruvananthapuram. In appeal under Art. 136, parties agreed for said arrangement and court rejected mother’s claim for custody. As mother brought allegations of contempt, court directed personal presence of daughter and found that she wanted to pursue her studies in Kuwait. Contempt therefore, disposed of. Directions regarding visitation rights of minor son, issued. Father directed to pay Rs 50,000 to mother for every visit of minor son. It was clarified that when daughter attained 18 yrs, she has full freedom to make her choice which she openly declared in presence of court. [Soni Gerry v. Gerry Douglas, (2018) 2 SCC 197]

Government Contracts and Tenders — Judicial Review/Validity — Opinion of project owner/Experts on satisfaction of eligibility criteria — Relevance of — Judicial restraint: In the absence of any mala fides or perversity in the technical expert reports, any appreciation by the Court of technical evaluation would be outside its ken and best left to technical experts. [Sam Built Well (P) Ltd. v. Deepak Builders, (2018) 2 SCC 176]

Income Tax Act, 1961 — S. 80-IB — Benefit of deduction available for 10 yrs in respect of profit and gains of a small-scale industry — Denial of, for the years where such assessee/industry outgrows and ceases to be a smallscale industry: On analysing the scheme of S. 80-IB, held, each assessment year being a different assessment year, the incentive meant for small-scale industrial undertakings cannot be availed by industrial undertakings which do not continue as small-scale industrial undertakings during the relevant period. [CIT v. ACE Multi Axes Systems Ltd., (2018) 2 SCC 158]

Insurance — Generally — Underinsurance — Meaning and Effect of — Stated with illustrations: Insured had taken out insurance policy where insured valued items for sum which is less than actual value. This is normally done to pay lesser premium. Underinsurance is harmful to policy-holder and not to insurance company. If entire property underinsured is lost, policy-holder would get maximum sum for which that property was insured and nothing more. [I.C. Sharma v. Oriental Insurance Co. Ltd., (2018) 2 SCC 76]

Intellectual Property — Passing-off: Passing-off action for a mark having goodwill and reputation in jurisdictions other than India cannot be successfully maintained in the absence of such mark having sufficient goodwill or reputation in India. [Toyota Jidosha Kabushiki Kaisha v. Prius Auto Industries Ltd., (2018) 2 SCC 1]

Legal Metrology Act, 2009 — Ss. 2(r) & (l) — Sale of mineral water at a price in excess of MRP to customers in hotels and restaurants — Permissibility of: Definition of “sale” contained both in 1976 Act and in 2009 Act would go to show that composite indivisible agreements for supply of services and food and drinks would not come within the purview of either Act. Therefore, neither Standards of Weights and Measures Act, 1976 r/w 1985 Act, nor Legal Metrology Act, 2009, would apply so as to interdict the sale of mineral water in hotels and restaurants at prices above the MRP. [Federation of Hotel and Restaurant Assn. of India v. Union of India, (2018) 2 SCC 97]

Rent Control and Eviction — Arrears of Rent/Default/Tender of Rent/Striking off Defence — Arrears of rent: The tax recoverable from the tenant under S. 67(3) of the New Delhi Municipal Council Act, 1994 as arrears of rent by the landlord cannot be considered to be forming part of the rent for the purpose of seeking eviction/ejectment of the tenant who defaults in payment of such recoverable tax as rent. [Atma Ram Properties (P) Ltd. v. Oriental Insurance Co. Ltd., (2018) 2 SCC 27]

Rent Control and Eviction — Eviction petition/suit — Non-renewal of rent agreement, determination of tenancy and transfer of tenancy rights in violation of rent agreement — Proof — Nature of: For determination of tenancy and transfer of tenancy rights in violation of rent agreement, reliance on documents which were categorically denied by appellant landlord without further proof, not proper. [Syed Sugara Zaidi v. Laeeq Ahmad, (2018) 2 SCC 21]

Trade and Merchandise Marks Act, 1958 — Ss. 111/107 and Ss. 46/56 — Rectification proceedings under either set of provisions — Relative scope and manner of invocation of, explained in detail: If an aggrieved party does not approach the Tribunal for a decision on the issue of invalidity of registration as provided for under Ss. 111(2) and (3) r/w S. 107 of 1958 Act, the right to raise the issue (of invalidity of trade marks concerned) would no longer survive between the parties to enable the party concerned to seek enforcement of the same by recourse to or by a separate action under the provisions of Ss. 46/56 of the 1958 Act. Further, the right to raise the issue of invalidity is lost forever if the requisite action to move the High Court/IPAB (now) is not initiated within the statutorily prescribed time-frame. [Patel Field Marshal Agencies v. P.M. Diesels Ltd., (2018) 2 SCC 112]

Transfer of Property Act, 1882 — S. 54 — Agreement for sale/agreement to sell of immovable property: Unlike sale, agreement for sale/agreement to sell of immovable property, does not create any interest in favour of purchaser in respect of property. Hence it cannot be regarded as “transfer” within meaning of S. 48(d) of Maharashtra Cooperative Societies Act, 1960. [Balwant Vithal Kadam v. Sunil Baburaoi Kadam, (2018) 2 SCC 82]

Cases ReportedSupreme Court Cases

Arbitration and Conciliation Act, 1996 — S. 8 — Reference to arbitration in pending suit — Application under S. 8 of 1996 Arbitration Act — Maintainability: The Delhi Rent Act, which deals with the cases relating to rent and eviction, is a special Act. Though it contains a provision (Section 3) by virtue of which the provisions of the said Act do not apply to certain premises, but that does not mean that the Arbitration Act, ipso facto, would be applicable to such premises conferring jurisdiction on the arbitrator to decide the eviction/rent disputes. In such a situation, the rights of the parties and the demised premises would be governed by the Transfer of Property Act, 1882 and the civil suit would be triable by the civil court and not by the arbitrator. In other words, though by virtue of Section 3 of the Delhi Rent Act, the provisions of the said Act are not applicable to certain premises but no sooner the exemption is withdrawn or ceased to have its application to a particular premises, that Act becomes applicable to such premises. In this view of the matter, it cannot be contended that the provisions of the Arbitration Act would, therefore, apply to such premises. [Himangni Enterprises v. Kamaljeet Singh Ahluwalia, (2017) 10 SCC 706]

Constitution of India — Arts. 25, 26, 14, 17, 21, 38, 51-A(e) and 290-A — Sabarimala Temple: Matter regarding practice of not permitting women of age group of 10 to 50 yrs to enter or offer prayer in Sabarimala Temple, that is, women after menarche up to menopause on grounds: (a) that deity in Sabarimala Temple is a Naisthik Brahmachari, a Yogi, whose celibacy and austerity should not be affected by women of such age group, and (b) that worshippers visit temple after observing penance for 41 days and usually ladies of such age group will not be physically capable of observing “vratham” for 41 days due to biological factor of menstruation, referred to a larger Bench, five issues also formulated. [Indian Young Lawyers Assn. v. State of Kerala, (2017) 10 SCC 689]

Income Tax Act, 1961 — S. 115-O (as inserted by Finance Act, 1997) — Dividend declared, distributed or paid by a tea company, engaged in the business of growing green tea leaves in its tea gardens and manufacturing black tea out of the same — Taxability of: Levy of “additional income tax” under section 115-O, IT Act on “dividend” justified as “dividend” is income and tax thereon can be levied under Entry 82 of List I. [Union of India v. Tata Tea Co. Ltd., (2017) 10 SCC 764]

Land Acquisition Act, 1894 — S. 3(a) r/w S. 49: Acquisition of mere building/portion of a building, without the underlying land is possible and valid, even when the Government itself is the owner of the underlying land. [State of Maharashtra v. Reliance Industries Ltd., (2017) 10 SCC 713]

Maharashtra Control of Organised Crime Act, 1999 (30 of 1999) (as extended to NCT of Delhi) — Ss. 2(1)(d) & (1)(e), 1(2) and 3 — “Organised crime” — “Continuing unlawful activity” defined in S. 2(1)(d) for constituting offence as to — Requisites of: Invoking doctrine of territorial nexus in this case of organized crime and adopting construction in favour of advancement of object of statute concerned i.e. MCOCA, it was held that expression “competent court” in S. 2(1)(d) of MCOCA is not restricted to courts in Delhi alone. Perusal of chargesheets filed in competent courts in other State (i.e. State of U.P.) which were relied on by prosecution to prove commission of organised crime established clear nexus between those charge-sheets and State of NCT of Delhi where prosecution was launched under MCOCA. Hence it was held that those chargesheets could be taken into account for purpose of constituting “continuing unlawful activity” to prosecute accused persons under MCOCA at Delhi. Such prosecution could not be said to be invalid on ground of extra-territoriality. [State (NCT of Delhi) v. Brijesh Singh], 2017) 10 SCC 779]

Prisons, Prisoners and Probation of Offenders — Prison/Jail Reforms — Unnatural deaths in prisons: Directions issued for measures to be taken to prevent unnatural deaths in prisons, as far as possible and for proper implementation of Modern Prison Manual, 2016 and other guidelines and rules of Central Government and International Bodies. Suggestion was also given for establishment of open jails and use of phone and video confrencing for communication with family and lawyers. [Re-Inhuman Conditions In 1382 Prisons, In re, (2017) 10 SCC 658]