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]