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SCC Issue dated April 14th, 2021 (Vol. 3 Part 5)

In this part read a very interesting article Existence and Mortgageability of Equitable Estates in Immovable Property in Indian Law – I, (2021) 3 SCC J-25 by Mr Sudeep Malik, Associate Editor, Supreme Court Cases. The author discusses the question “Whether a property can be equitably mortgaged by depositing documents which may not be title deeds or registered document of title? “ which was referred to 3-Judge Bench of Supreme Court in Syndicate Bank v. APIIC, (2021) 3 SCC 736.

Civil Procedure Code, 1908 — Or. 23 R. 3 and Ss. 151 and 96(3) — Consent decree — Modification or alteration of, by court — When permissible: It is settled law that consent decrees are intended to create estoppels by judgment against the parties, thereby putting an end to further litigation between the parties and it would be slow to unilaterally interfere in, modify, substitute or modulate the terms of a consent decree, unless it is done with the revised consent of all the parties thereto. However, this formulation is far from absolute and does not apply as a blanket rule in all cases and a consent decree would not serve as an estoppel, where the compromise was vitiated by fraud, misrepresentation, or mistake. Court in the exercise of its inherent powers may also unilaterally rectify a consent decree suffering from clerical or arithmetical errors, so as to make it conform with the terms of the compromise. [Compack Enterprises (India) (P) Ltd. v. Beant Singh, (2021) 3 SCC 702]

Constitution of India — Art. 21 r/w Pt. III — Liberty guaranteed by Pt. III — Scope of: Liberty guaranteed by Pt. III of the Constitution covers within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. When a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the courts would ordinarily be obligated to enlarge accused on bail regardless of statutory restrictions imposed on right to bail by provisions like S. 43-D(5) of the UAPA. [Union of India v. K.A. Najeeb, (2021) 3 SCC 713]

Consumer Protection Act, 1986 — S. 13(2)(a): Limitation period for filing response or written statement in reply to complaint, by respondent/opposite party, mandatorily cannot be extended beyond prescribed period of 45 days (i.e. period of 30 days along with discretionary extension of time up to 15 days) by Consumer Fora. [Daddy’s Builders (P) Ltd. v. Manisha Bhargava, (2021) 3 SCC 669]

Consumer Protection Act, 1986 — Ss. 13(2)(a), 18 and 22 — Power of Consumer Fora to extend time for filing written statement/reply to complaint beyond stipulated period of 45 days: In this case as the matter was pending decision of larger Bench on the said issue, direction issued that it would be open to Consumer Fora concerned to accept written statement filed beyond stipulated time of 45 days in an appropriate case, on suitable terms, including payment of costs, and to proceed with matter. [Reliance General Insurance Co. Ltd. v. Mampee Timbers and Hardwares (P) Ltd., (2021) 3 SCC 673]

Courts, Tribunals and Judiciary — Judicial Process — Recusal by Judge: Recusal by Judge is not warranted when on an earlier occasion first application filed by applicant for the very same relief as in present application was dismissed by the Bench in which one of the Judges of present Bench was present on the earlier occasion as well. Litigant cannot be permitted to browbeat Court by seeking Bench of its choice. [Neelam Manmohan Attavar v. Manmohan Attavar, (2021) 3 SCC 727]

Criminal Procedure Code, 1973 — S. 311 — Power to summon material witness, or examine person present: Principles summarised regarding object and scope of S. 311 and power and duties of court while exercising discretion under S. 311 CrPC. [V.N. Patil v. K. Niranjan Kumar, (2021) 3 SCC 661]

Criminal Procedure Code, 1973 — S. 439 r/w S. 41 — Interim bail: In this case, there was absence of compliance with procedure contained in S. 41 CrPC before arresting the petitioner. Same taken as factor for directing release of petitioner, a stand-up comedian, on ad interim bail by staying impugned judgment of High Court by which it declined bail to the petitioner involved in offences under Ss. 295-A, 298, 269 and 188/34 IPC, wherein complainant had alleged that jokes made by petitioner had outraged religious sentiments of the complainant and those similarly situated. [Munawar v. State of M.P., (2021) 3 SCC 712]

Criminal Procedure Code, 1973 — S. 482 — Quashment of proceedings under Ss. 419, 420, 323, 504 and 506 IPC: It was held that this case was fit for High Court to exercise jurisdiction under S. 482 CrPC and to quash criminal proceedings against accused under Ss. 419 and 420 IPC as it could not be said that averments in FIR and allegations in complaint against appellant constituted offences thereunder. But, regarding proceedings under Ss. 323, 504 and 506 IPC, High Court has rightly not quashed such proceedings, which shall be continued as per charge-sheet and shall be disposed of in accordance with law, on their own merits. [Archana Rana v. State of U.P., (2021) 3 SCC 751]

Existence Of Arbitration Agreement: This article seeks to examine the scope and purport of Section 7(4)(c) of the Arbitration and Conciliation Act, 1996 which stipulates that an arbitration agreement is deemed to be in writing if it is contained in an exchange of statement of claim and defence wherein the existence of arbitration agreement is alleged by one party and not denied by the other. In order to accomplish the aforesaid objective, the authors first examined the legislative history of Section 7 of the Act resulting in its enactment. Thereafter, the authors briefly examined the divergent views expressed by the High Courts and the Supreme Court of India on the scope and meaning of Section 7(4)(c) of the Act. The authors concluded by summarising their views on the true scope and purport of the said sub-section. Section 7(4)(C) Of The Arbitration And Conciliation Act, 1996: Acquiesence By Silence? By M. Dhyan Chinnappa & Rohan Tigadi, [(2021) 3 SCC (J-32)]

Hindu Marriage Act, 1955 — S. 13(1)(i-a) — “Mental cruelty” — Grant of divorce on ground of — Factors to be considered: For considering dissolution of marriage at instance of a spouse who alleges mental cruelty, result of such mental cruelty must be such that it is not possible to continue with matrimonial relationship. In other words, wronged party cannot be expected to condone such conduct and continue to live with his/her spouse. Degree of tolerance will vary from one couple to another and court will have to bear in mind background, level of education and also status of parties, in order to determine whether cruelty alleged is sufficient to justify dissolution of marriage, at instance of wronged party. [Joydeep Majumdar v. Bharti Jaiswal Majumdar, (2021) 3 SCC 742]

Land Acquisition Act, 1894 — Ss. 28-A, 4(1) and 23(1-A) — Redetermination of compensation: Claimant whose lands were acquired by a common notification, held, is entitled to enhanced compensation awarded by civil court to other landowners in same survey number. [Murali v. State of Kerala, (2021) 3 SCC 747]

Mortgage by deposit of title deeds: In this article, the author reflects upon several legal aspects relating to the issue raised before Supreme Court in Syndicate Bank v. APIIC, (2021) 3 SCC 736 regarding if a property can be equitably mortgaged by depositing documents which may not be title deeds or registered document of title. The author proposed some propositions in the matter. Those propositions are to be substantiated with statutory and case law analysis in several forthcoming articles in the SCC Journal Section by the author. Existence and Mortgageability of Equitable Estates in Immovable Property in Indian Law – I, by Sudeep Malik [(2021) 3 SCC (J-25)]

Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 — Ss. 6, 23 and 27 — Offences under the 1994 Act — Bail: In this case, accused and one other were found involved in pre-natal sex determination and abortion of female foetuses at their residence, without required registration or licence under law. There was sufficient evidence to hold that there is strong prima facie case against appellant-accused herein and that she had more active role in conducting alleged illegal medical practices of sex determination and sex-selective abortion as compared to other co-accused. Therefore, it is imperative that no leniency should be granted at instant stage. Thus, order of High Court denying bail to appellant-accused, confirmed. [Rekha Sengar v. State of M.P., (2021) 3 SCC 729]

Prevention of Corruption Act, 1988 — Ss. 7, 13(2) and 13(1)(d) — Illegal gratification: Mere recovery of tainted money in absence of any proof of demand and acceptance, cannot be said to be sufficient to convict the accused. [N. Vijayakumar v. State of T.N., (2021) 3 SCC 687]

Service Law — Departmental Enquiry — Enquiry Procedure — Issue of show-cause notice indicating proposed punishment of compulsory retirement before furnishing enquiry report — Legality of: After enquiry officer records his findings, it is always open for disciplinary authority to arrive at tentative conclusion of proposed punishment and it can indicate same to delinquent employee enclosing copy of enquiry report. [Boloram Bordoloi v. Lakhimi Gaolia Bank, (2021) 3 SCC 806]

Service Law — Judiciary — Recruitment process — Notification of vacancies — Periodicity with which to be made: While harmonising R. 7(2) of the Kerala Judicial Service Rules, 1991 with Malik Mazhar Sultan (3), (2008) 17 SCC 703, held, once process of selection is annual, notification of probable or anticipated vacancies must be for the selection year. Recruitment over and above notified vacancies, not permissible. [High Court of Kerala v. Reshma A., (2021) 3 SCC 755]

Specific Relief Act, 1963 — S. 38: In this case, suit for permanent injunction to restrain defendants from disturbing peaceful possession and enjoyment of plaintiff over the suit property was filed. Peaceful possession of the suit property by plaintiff was established on record and admitted by defendant. There being no dispute as to title, nor plaintiff raising any issues as to its title in the suit, as defendant’s prior suit for declaration of title and possession of the suit property standing dismissed and such dismissal attaining finality. [A. Subramanian v. R. Pannerselvam,(2021) 3 SCC 675]

Speedy resolution of arbitral disputes: In this article, the author states that while adjudicating appeals under Section 37, the Courts ought to be circumspect before condoning long delays, considering the objective of expeditious disposal of disputes under the Arbitration Act and prejudice being caused to the non-defaulting party. Appeal Under Section 37 Of The Arbitration And Conciliation Act, 1996 — To Condone Or Not To Condone Delay Beyond 120 Days, That Was The Question! By Sidharath Goyal [(2021) 3 SCC (J-56)]

Transfer of Property Act, 1882 — Ss. 58(f) & 96 and Ss. 40 Pt. II, 53-A & 54 — Mortgage by deposit of title deeds: In this case it was held that reference of the question regarding if a property can be equitably mortgaged by depositing documents which may not be title deeds or registered document of title, to present larger Bench, not required to be answered in the peculiar facts and circumstances of the case, as allotter is estopped from challenging the mortgage sale of the property in question by the mortgagee Bank, as it had itself issued the permission to create a charge on the property in question, even though the allottee had only been issued an allotment letter. [Syndicate Bank v. A.P. Industrial Infrastructure Corpn. Ltd., (2021) 3 SCC 736]

Violation of fundamental rights by a judicial order: The protection and enforcement of fundamental rights and freedoms is both the power and duty of the courts and the grant of appropriate remedy is not discretionary but obligatory. This article discusses the issues regarding violation of fundamental rights by a judicial order and remedies against it. Courts — Guardian Of Our Liberties: Judicial Orders Can Violate Fundamental Rights? By V. Sudhish Pai [(2021) 3 SCC (J-44)]

SCC Issue dated April 14th, 2021 (Vol. 3 Part 4)

In this part, read the important judgment on right to life and liberty, deftly analysed by our editors in over 7 shortnotes, where the Supreme Court has held that custodial violence involving police atrocities which resulted in passing away of the deceased is a crime against humanity and a clear violation of rights guaranteed  under Article 21. It is held that permission for compounding such offence cannot be granted by the court, regardless of any settlement entered into by the parties.  [Pravat Chandra Mohanty v. State of Odisha, (2021) 3 SCC 529]

Short Notes: 8

Constitution of India — Art. 21 — Offences involving police brutality/atrocities and which are compoundable with permission of court: Permission for compounding of such offences involving police brutality/atrocities cannot to be granted by court. When the police is a violator of the law whose primary responsibility is to protect the law, the punishment for such violation has to be proportionately stringent so as to have effective deterrent effect and instil confidence in the society. Offences involving police brutality are crimes not against the victim alone but against humanity and a clear violation of rights guaranteed under Art. 21. Thus, permission for compounding of such offences cannot be granted by court, regardless of any settlement entered into by the parties. [Pravat Chandra Mohanty v. State of Odisha, (2021) 3 SCC 529]

Recovery of Debts and Bankruptcy Act, 1993 — S. 21 and proviso thereto — Condition of pre-deposit under S. 21 — Mandatory nature of: Discretion of DRAT to reduce pre-deposit amount from 50% of debt due, held, is limited to reducing the pre-deposit to 25% thereof. The pre-deposit cannot under any circumstances be reduced below 25% of the debt due. [Kotak Mahindra Bank (P) Ltd. v. Ambuj A. Kasliwal, (2021) 3 SCC 549]

Civil Procedure Code, 1908 — S. 89: True intendment of S. 89 is legally arrived at settlement of disputes outside court without intervention of courts, and not necessarily by only the modes prescribed in S. 89, nor necessarily upon direction of court. Settlement of disputes outside court and refund of court fees is permissible even in cases in which parties, without any reference by court, privately agree to settle their dispute outside modes contemplated under S. 89 CPC and such settlement is legally arrived at. [High Court of Madras v. M.C. Subramaniam, (2021) 3 SCC 560]

Constitution of India — Sch. VII List I Entry 23 and List II Entry 13 and Arts. 246, 73, 257 and Pt. XI Ch. II (Arts. 256 to 263) — Legislative and Executive power of Union under List I Entry 23 i.e. in respect of highways designated as national highways: Provisions of the Constitution unambiguously indicate that legislative as well as executive power regarding all matters concerning and connected with highways designated as national highways, vest exclusively in Union and are governed by laws made by Parliament alone in that regard. For the same reason, complete executive power in respect of highways designated as national highways also vests with Union, including the power to acquire land therefor and construct and develop the same. Further, Chapter II of Part XI of the Constitution dealing with administrative relations between Union and States makes it amply clear that executive power of every State shall be so exercised as to ensure compliance with laws made by Parliament and any existing laws which apply in that State, and executive power of Union shall extend to giving of such directions to a State as may appear to Government of India to be necessary for that purpose. Hence, Union also has the power to issue directions to State Government concerned for the development of national highways, in accordance with the National Highways Act, 1956. [Project Implementation Unit v. P.V. Krishnamoorthy, (2021) 3 SCC 572]

SCC Issue dated April 7th, 2021 (Vol. 3 Part 3)

In this part read a very important decision delivered by the Supreme Court running into over 90 pages which have been expertly analysed by our editors. Supreme Court has discussed the mode of dealing with withheld securities of a defaulting member by National Stock Exchange of India/National Securities Clearing Corporation Limited, consequent to his expulsion.[Rusoday Securities Ltd. v. National Stock Exchange of India Ltd., (2021) 3 SCC 401]

Short Notes: 4

Advocates before the Court:

For appellants:  Senior Advocate Siddhartha Mitra and Advocates-on-record Ashok Mathur and Devashish Bharuka

For Respondent(s): Senior Advocate Shyam Divan and Adocates-on-Record. S. S. Shroff, Rabin Majumder, Bhargava V. Desai

Civil Procedure Code, 1908 — Or. 14 R. 2 — Framing of preliminary issue — Issues in regard to maintainability of suit: Framed issues relating to maintainability of suit, held, if taken up and decided by trial court as preliminary questions of law would cause no prejudice to appellant-plaintiff. [Santosh Kumar v. Ashok Chand, (2021) 3 SCC 385]

Constitution of India — Art. 21: Right to marry person of one’s choice is integral to Art. 21. Autonomy of an individual inter alia in relation to family and marriage is integral to the dignity of the individual. Training programme to be devised, and guidelines to be issued by police authorities in this regard. [Laxmibai Chandaragi B. v. State of Karnataka, (2021) 3 SCC 360]

Education Law — Professional Colleges/Education — Medical and Dental Colleges — Establishment, Running, Closure and Nationalisation of Medical/Dental Colleges — Affiliation/Recognition — Purpose of/Entitlement to/Prerequisites for/Competent Authority/Time-Schedule: In this case, denial of permission to College to admit students for particular academic years, held, fully justified, as College concerned had not utilised opportunities given to it to rectify deficiencies, and on the relevant date, as per time-schedule fixed in respect of permissions to be granted for the next academic year, application for renewal of permission had not been filed in time. [Chintpurni Medical College & Hospital v. Union of India, (2021) 3 SCC 374]

Family and Personal Laws — Judicial Intervention/Family Courts/Judges/Officers — Alternative Dispute Resolution/Mediation/Conciliation/Compromise — Mediation — Matrimonial dispute: In this case, there was reference to mediation on consent of counsel. Directions were issued as to expenses and interaction of child with parent and family of parent whose custody it was not in. [Roopsi Varun Gupta v. Varun Vikram Gupta, (2021) 3 SCC 373]

Insolvency and Bankruptcy Code, 2016 — Ss. 5(7) and 5(8), 43, 45(2), 49, 50 and Ss. 7 to 9 — Financial creditor — Who is: Collusive/Sham transactions cannot amount to “financial debts” under IBC. Under S. 5(7) a person can be categorised as a financial creditor if a financial debt is owed to it. S. 5(8) stipulates that the essential ingredient of a financial debt is disbursal against consideration for the time value of money. A transaction which is sham or collusive would only create an illusion that money has been disbursed to a borrower with the object of receiving consideration in the form of time value of money, when in fact the parties have entered into the transaction with a different or an ulterior motive i.e. the real agreement between the parties is something other than advancing a financial debt. Further, IBC recognises that for the success of an insolvency regime, the real nature of the transactions has to be unearthed in order to prevent any person from taking undue benefit of its provisions to the detriment of the rights of legitimate creditors. [Phoenix ARC (P) Ltd. v. Spade Financial Services Ltd., (2021) 3 SCC 475]

Land Acquisition Act, 1894 — Ss. 11, 4, 6 and 18 — Acquisition of land: In this case of dispute over approval of award and reopening of acquisition proceedings, approval of award supported by material on the record, compensation paid thereunder and possession of the land handed over to the Government. Resultantly, reopening of acquisition proceedings by way of re-notification of the already acquired land under S. 4 of the LA Act by the Government, reiterated, is not permissible. Furthermore, as award had been approved before coming into force of the 2013 Act, S. 24(1)(a) of the 2013 Act would not be applicable. [Assam Industrial Development Corpn. Ltd. v. Gillapukri Tea Co. Ltd., (2021) 3 SCC 388]

Penal Code, 1860 — S. 302 and S. 53 Secondly: Imposition of sentence of life imprisonment by trial court with direction that it shall be for remainder of natural life, held, not permissible. Such power of imposing a fixed term of imprisonment, or for the remainder of natural term of life of convict, while imposing a sentence of life imprisonment, held, is available only to High Court and Supreme Court, and not the trial court. [Gauri Shankar v. State of Punjab, (2021) 3 SCC 380]

Penal Code, 1860 — S. 302 or S. 304 — Murder or culpable homicide — Death due to septicaemia: There is no absolute proposition of law that in all cases where deceased died due to septicaemia, case would fall under S. 304. The same has to be determined in the facts and circumstances of each case. [Khokan v. State of Chhattisgarh, (2021) 3 SCC 365]

SEBI (Stockbrokers and Sub-Brokers) Regulations, 1992 — Circular dt. 19-5-1997 issued by NSCCL and adopted by Exchange, prescribing trading/exposure limits coupled with sanctions for non-compliance i.e. operational parameters — Vires of: In this case, Circular in question pertained to trading/exposure limits coupled with sanctions in case of non-compliance and the Exchange adopted the circular from the Clearing Corporation and notified it in the form of operational parameter. The Supreme Court held that the legislature has bestowed upon the Exchange sufficient freedom of action to effectively control and regulate the functioning of stockbrokers who use the Exchange as a means to enter into financial relationships with the investors and common public. Further, this freedom of action is guaranteed in the preapproved Bye-laws which enable the Exchange to frame Regulations, instructions, operational parameters, notice, etc. and bring them into force without subjecting them to any added condition of prior approval of the Central Government/SEBI. The only limitation on this power of the Exchange is that such Regulations or operational parameters issued under the Bye-laws are subject to the 1956 Act, the 1992 Act and the Rules framed thereunder. Further, rejecting the challenge to the legal sanctity of the circular, held, since the Bye-laws and Rules of the Exchange are duly approved by the Central Government/SEBI, it can safely be stated that actions taken by the Exchange under the Bye-laws or Regulations. By prescribing such operational parameters in the form of a circular and in consequence thereof would assume enforceable character. [Rusoday Securities Ltd. v. National Stock Exchange of India Ltd., (2021) 3 SCC 401]

Transfer of Property Act, 1882 — Ss. 122 and 123 — Gift of immovable property when becomes complete — Acceptance of gift: Acceptance by or on behalf of donee must be made during lifetime of donor and while he is still capable of giving. Execution of gift deed registered and attested in accordance with S. 123 TPA, and acceptance of such gift make gift of immovable property complete. Thereafter, donor is divested of the title or interest being gifted, and donee becomes owner of the gifted property, estate or interest. [Daulat Singh v. State of Rajasthan, (2021) 3 SCC 459]

SCC Issue dated April 7th, 2021 (Vol. 3 Part 2)

In this part read a very important decision delivered by the Supreme Court with respect to Consumer Protection Act which was expertly analysed by our editors in over 7 short notes. Supreme Court observed that “Developer cannot compel the apartment buyers to be bound by the one-sided contractual terms contained in the Apartment Buyer‘s Agreement.”[IREO Grace Realtech (P) Ltd. v. Abhishek Khanna, (2021) 3 SCC 241]

Short Notes: 7

Constitution of India — Arts. 32, 21, 19(1)(a) and (2) — Multiple FIRs against anchor of news debate show, on grounds of fomenting hatred amongst communities/hate speech — Interim stay and other directions — When warranted: In this case, ad interim stay was imposed on instituted criminal proceedings and possible FIRs relating to same telecast. Notice was issued and petitioner was directed to implead complainants and serve notice on newly added respondents. [Amish Devgan v. Union of India, (2021) 3 SCC 306]

Consumer Protection — Cause of Action — Unfair trade practice — Directions, declaration and relief that may be granted by Consumer Forums in case of: S. 14 of the CPA, 1986 empowers Consumer Fora to redress deficiency of service by issuing directions to opposite party, and compensate consumer for loss or injury caused by opposite party, or discontinue unfair or restrictive trade practices. Even under the CPA, 1986, powers of Consumer Fora are in no manner constrained to declare a contractual term as unfair or one-sided as an incident of power to discontinue unfair or restrictive trade practices. An “unfair contract” has been defined under the CPA, 2019, and powers have been conferred on State Consumer For a and National Commission to declare contractual terms which are unfair, as null and void. This is a statutory recognition of a power which is implicit under the CPA, 1986. [IREO Grace Realtech (P) Ltd. v. Abhishek Khanna, (2021) 3 SCC 241]

Designs Act, 2000 — S. 22(4) — Jurisdiction of court: Jurisdiction over infringement suits in which defendant seeks revocation of registration of design vests in High Court under S. 22(4) of the 2000 Act, even when the High Court does not exercise original side jurisdiction. Operation of S. 22(4) of the 2000 Act is not affected by the Commercial Courts Act, 2015. [S.D. Containers v. Mold-Tek Packaging Ltd., (2021) 3 SCC 289]

Evidence Act, 1872 — S. 92 Proviso (6) r/w Ill. (f) and Ss. 94 and 95 — Entirety of correspondence, as opposed to a single/some correspondence(s): When there are a number of documents exchanged between the parties in the performance of a contract, all of them must be read as a connected whole, relating each particular document to “existing facts”, which include how particular words are used in a particular sense, given the entirety of correspondence between the parties. Further, after the application of Proviso (6) to S. 92, the adjudicating authority must be very careful when it applies provisions dealing with patent ambiguity, as it must first ascertain whether the plain language of a particular document applies accurately to existing facts. If, however, it is ambiguous or unmeaning in reference to existing facts, evidence may then be given to show that the words used in a particular document were used in a sense that would make the aforesaid words meaningful in the context of the entirety of the correspondence between the parties. [Anglo American Metallurgical Coal Pty. Ltd. v. MMTC Ltd., (2021) 3 SCC 308]

Insolvency and Bankruptcy Code, 2016 — S. 10-A (as inserted by Ordinance 9 of 2020 promulgated on 5-6-2020 followed by Amending Act 17 of 2020) r/w Ss. 5(11), 7, 9 and 10 — Bar against filing of applications for initiation of corporate insolvency resolution process (CIRP) in relation to defaults committed on or after 25-3-2020 for a period of six months, extendable to one year — Nature of: Said bar is retrospective in nature, and is thus applicable to applications filed prior to insertion of S. 10-A i.e. prior to 5-6-2020. Use of the expressions “shall be filed” and “no application shall ever be filed”, do not affect the retrospective applicability of such bar. The language of the provision is not always decisive to arrive at a determination whether the provision is applicable prospectively or retrospectively. The substantive part of S. 10-A is to be construed harmoniously with the first proviso and the Explanation. Reading the provisions together, it is evident that Parliament intended to impose a bar on filing of applications for commencement of CIRP in respect of a corporate debtor for a default occurring on or after 25-3-2020, the embargo remaining in force for a period of six months, extendable to one year. Thus, the embargo contained in S. 10-A must receive a purposive construction which will advance the object which was sought to be achieved by enacting the provision. Further held, the (retrospective) bar on the filing of applications for the commencement of CIRP during the stipulated period does not extinguish the debt owed by the corporate debtor or the right of creditors to recover it. [Ramesh Kymal v. Siemens Gamesa Renewable Power (P) Ltd., (2021) 3 SCC 224]

Institution of criminal proceedings for sexual offences involving children: Sexual abuse has an inherent social stigma having lifelong adverse consequences for the victims, resulting in a reluctance to report the crime. The callous and unprofessional attitude of law enforcement agencies further foments self-blame and victim-shaming tendencies and breeds discontent and despair amongst victims and their families. Lack of fair and scientific investigation and unusual delay in court proceedings also results in general in acquittal of the rape accused. Pendency of cases in trial courts is very high and is growing every year. Timely reporting and registration of cases are essential requisites for instituting criminal proceedings. This article attempts to deal with various steps and intricacies involved at various stages in dealing with sexual offences involving children. Procedural road map for handling child sexual abuse under the POCSO Act, 2012,  by Dr G.K. Goswami & Aditi Goswami, (2021) 3 SCC (J-1)]

Penal Code, 1860 — S. 300 Exception 4 — Applicability of: In this case, considering relevant materials, the injuries, held, were inflicted without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the appellant having taken advantage or acted cruelly or unusually. Resultantly, the case, held, fell under S. 300 Exception 4. Thus, appellant held liable under S. 304 Pt. I. [Pardeshiram v. State of M.P., (2021) 3 SCC 238]

Punjab Village Common Lands (Regulation) Rules, 1964 — R. 12(4) [as incorporated vide Noti. dt. 3-1-2008]: Necessary requirements for sale of non-cultivable panchayat land to inhabitants of village who constructed their houses on such land as prescribed in the Rules, must strictly be complied with. In this case, claimants being in illegal occupation of panchayat land cannot, as a matter of right, claim regularization. Regularisation of the illegal occupation can only be as per the policy of the State Government and strictly as per the conditions stipulated in the Rules. Even if there is a construction the same is required to be removed and the possession of the land must be handed back to the Gram Panchayat, if the conditions for regularisation are not satisfied. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularising the illegal possession. [Joginder v. State of Haryana, (2021) 3 SCC 300]

SCC Issue dated January 14, 2021 (Vol. 1 Part 2)

Read the Supreme Court Judgment expertly analysed by our Editors directing States and UTs to install CCTV Cameras in all Police Station. How the installation of CCTV Cameras will curb Custodial Violence? Detailed directions laid down.[Paramvir Singh Saini v. Baljit Singh, (2021) 1 SCC 184]

Counsels heard:

Amicus Curiae Siddhartha Dave

Attorney General for India K.K. Venugopal,

Addl. Solicitor General of India Madhvi Divan,

Advocate Nitya Ramakrishnan for the intervenor

Read the following analytical articles:

• The Legality of Voice Exemplars: An Opportunity Missed: Ritesh Sinha V. State of U.P.:(2021) 1 SCC J-73
• Reflections on Existence-Unstamped Agreements After Garware Wall Ropes:(2021) 1 SCC J-81

Admissibility and enforceability of an unstamped document: In this article interpretative opinion in respect of the Supreme Court’s judgment in Garware Wall Ropes Ltd. v. Coastal Marine Constructions & Engg. Ltd., (2019) 9 SCC 209, regarding admissibility and enforceability of an unstamped document, has been discussed in the light of the relevant provisions of the Indian Stamp Act, 1899, Contract Act, Arbitration Act, Court fees Act, 1870, etc. Reflections on Existence—Unstamped Agreements after Garware Wall Ropes by Akash Rebello, (2021) 1 SCC (J-81)]

Constitution of India — Art. 129: In this case, legal proceedings for extradition of contemnor to India, still pending in United Kingdom. As legal proceedings which attract strict confidentiality as a matter of United Kingdom law currently ongoing in United Kingdom, contemnor not able to provide any further information about nature of proceedings or relief sought. Time granted to Union of India for placing status report on record and discharge application of contemnor, rejected. [SBI v. Kingfisher Airlines Ltd., (2021) 1 SCC 223]

Constitution of India — Art. 21 — Installation of CCTV cameras in police stations — Credible recording of evidence and safeguarding human rights inside police stations: In this case regarding implementation of action plan prepared by Committee of Union of India, Ministry of Home Affairs (MHA) and as directed by Supreme Court in Shafhi Mohammad, (2018) 5 SCC 311, States and Union Territories directed to file compliance affidavit disclosing exact position of CCTV cameras qua each police station. Constitution of Oversight Committees in accordance with order in Shafhi Mohd. case to be done at State and district levels. Duty and composition of State Level Oversight Committee (SLOC) and District Level Oversight Committee (DLOC) defined. Duty and responsibility for working, maintenance and recording of CCTVs shall be that of SHO of police station concerned. Whenever there is information of force being used at police stations resulting in serious injury and/or custodial deaths, it is necessary that persons be free to complain for a redressal of the same. Such complaints may not only be made to State Human Rights Commission, which is then to utilise its powers, more particularly under Ss. 17 and 18 of the Human Rights Act, 1993, for redressal of such complaints, but also to Human Rights Courts, which must be set up in each district of every State/Union Territory under S. 30 of the Human Rights Act, 1993. Commission/Court can then immediately summon CCTV camera footage in relation to incident for its safe keeping, which may then be made available to an investigation agency in order to further process complaint made to it. Union of India also directed to file affidavit in which it will update Supreme Court on constitution and workings of Central Oversight Body (COB). Union of India further directed to install CCTV cameras and recording equipment in offices of agencies where such interrogation and holding of accused takes place in the same manner as it would in a police station. COB shall perform same function as SLOC for offices of investigative/enforcement agencies mentioned above both in Delhi and outside Delhi wherever they be located. [Paramvir Singh Saini v. Baljit Singh, (2021) 1 SCC 184]

Disaster Management Act, 2005 — Ss. 6 and 10(2)(1) — COVID-19 Pandemic — Relief to borrowers in specified loan accounts: Circular dt. 23-10-2020/Scheme announced by the Government of India granting reliefs to borrowers, including relief of waiver of “interest on interest” i.e. grant of ex gratia payment of difference between compound interest and simple interest for six months to borrowers in specified loan accounts (1-3-2020 to 31-8-2020), directed to be implemented in letter and spirit. [Gajendra Sharma v. Union of India, (2021) 1 SCC 210]

Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 — Ss. 4, 1(3), 2(e) & (f) r/w Ss. 2(g), 4, 7, 8, 10, 11 and 15 of the Private Security Agencies (Regulation) Act, 2005 — GSR No. 805 dt. 17-5-1971 making the 1952 Act applicable to establishments rendering expert services: In this case, in terms of provisions of 2005 Act, appellant is the employer paying wages to security guards. Merely because client pays money under contract to appellant, who in turn pays wages to security guards from such contractual amount do not make client employer of security guards. Further held, fact that appellant never made statutory registers under the 2005 Act available to authorities under the EPF Act shows that he was actually withholding relevant papers, which coupled with letter dt. 3-4-2001 written by appellant to Insurance Company seeking Group Janta Personnel Accident Insurance Policy of rupees one lakh each in respect of 79 security personnel, balance sheets seized for Financial Years 2003-2004, 2004-2005, 2005-2006, 2006-2007 showing payment of wages running into lakhs, only leads to irresistible conclusion that appellant had more than 20 employees on its rolls. Thus, appellant was engaged in specialised and expert services of providing trained and efficient security guards to its clients on payment basis and liable under EPF Act. Contention that appellant merely facilitated providing chowkidars, is rejected. [Panther Security Service (P) Ltd. v. EPFO, (2021) 1 SCC 193]

Insolvency and Bankruptcy Code, 2016 — Ss. 16 and 22 — Resolution professional (RP) — Who may be appointed as: Based merely upon the fact that the person who remained in service of one of the financial creditors and is getting pension, a person cannot be disentitled from being appointed as RP. [SBI v. Metenere Ltd., (2021) 1 SCC 191]

Motor Vehicles Act, 1988 — S. 166 — Approach to be adopted by Tribunal and Court: In motor accident claims, standard of proof is one of preponderance of probabilities, rather than beyond reasonable doubt. Approach and role of courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eyewitnesses, as may happen in a criminal trial; but, instead should be only to analyse material placed on record by parties to ascertain whether claimant’s version is more likely than not true. [Anita Sharma v. New India Assurance Co. Ltd., (2021) 1 SCC 171]

Securities and Exchange Board of India Act, 1992 — S. 19 r/w Ss. 11(1), 11(4)(d), 11(4-A), 11(5), 11-B and Regn. 10 of the SEBI (Prohibition of Insider Trading) Regulations, 2015: Passing of ex parte interim order by Whole-time Member of SEBI, invalid, when there was no urgency to pass such order. [SEBI v. Udayant Malhoutra, (2021) 1 SCC 219]

Service Law — Promotion  — Time-bound promotion scale/increment/scheme — Time-bound promotional scale — Entitlement — Parity — Claim to: In this case, appellant promotee diploma-holders were claiming time-bound promotional scales while working as AEs on a par with direct recruits K & R who were BE (Civil). In terms of First Circular dt. 1-1-1986 an employee on completion of 9 yrs of regular service was entitled to first time-bound promotion while second time-bound promotion was available on completion of 16 yrs; further, where normal promotion was granted before completion of 9 yrs from date of direct recruitment, he was not entitled to first time-bound promotion and was eligible for second time-bound promotion after completion of 16 yrs counted from date of recruitment provided he did not earn second normal promotion before completion of 16 yrs. In terms of Second Circular dt. 24-5-1990, AEs were granted first time-bound promotion on completion of 9 yrs of regular service and second time-bound promotion on completion of 16 yrs of service. The Supreme Court held that the promotee employees are entitled to time-bound promotional scale in terms of First Circular only and cannot claim parity with direct recruits K & R. Further held, benefit granted to some employees by virtue of High Court orders and dismissal of SLPs filed thereagainst would not create binding precedent which runs counter to subsequent Supreme Court judgment rendered in Krishan Kumar Vij, (2010) 8 SCC 701 which relied on Kunhayammed, (2000) 6 SCC 359. Besides, appellants being diploma-holders were promoted under Regn. 7(a)(ii) r/w Regn. 10.4 of the Regulations and had opportunity to compete for direct recruitment after 12 yrs of service which they never availed or remained unsuccessful. Appellants would have been entitled to claim parity with K & R only if they were qualified and promoted against posts reserved for employees by direct recruitment. Furthermore, claim of appellants of discrimination and arbitrariness on basis of time-bound promotion granted to K & R, held, unsustainable since K & R were direct recruits while appellants were promoted as per their seniority in cadre of JE. Appellants were held to be covered by First Circular and not Second Circular which was applicable to direct recruits. No interference with impugned judgment holding that appellants were not entitled to time-bound promotional scale on grounds of parity with other cases called for [Inderjit Singh Sodhi v. Punjab SEB, (2021) 1 SCC 198]

The Legality Of Voice Exemplars: While considering the question of legality of orders passed by criminal courts directing the accused to furnish voice samples for the purposes of investigation, this article presents an analysis of the order of a three- Judge Bench of the Supreme Court in Ritesh Sinha v. State of U.P., (2019) 8 SCC 1. The Legality of Voice Exemplars: An Opportunity Missed: Ritesh Sinha v. State of U.P. by Justice P.N. Prakash, Sanjay S. Jain and Sharath Chandran, (2021) 1 SCC (J-73)]

Trusts and Trustees — Religious and Charitable Endowments and Trusts — Shebait  — Sree Padmanabhaswamy Temple, Thiruvananthapuram — Ruler of Travancore: For centuries drawing back from founder of Travancore, till ruler of Travancore who had signed Covenant in May 1949 with the Government of India, shebaitship in respect of the Temple and its properties devolved on one ruler to succeeding ruler of the royal family in an unbroken line of succession in accordance with applicable law of custom and usage and as such ruler of Travancore was having all rights and interest attached to shebait. Successive rulers held office of shebait not as ruling Head of State but in personal capacity as manager and in-charge of the Temple and properties. Even on entering into the Covenant, Art. VIII thereof recognised pre-existing status of shebaitship held by successive line of rulers of Travancore and ruler of covenanting State of Travancore succeeded as shebait and administrator of the Temple, its properties as well as Pandaravaga properties. Position further remained unchanged before as well as after Constitution (Twenty-sixth Amendment) Act, 1971 and Travancore-Cochin Hindu Religious Institutions Act, 1950. After death of ruler of Travancore who had signed the Covenant, shebaitship and administration the Temple and its properties and Pandaravaga properties would continue to devolve on his successor following same custom and usage. Shebaitship did not lapse in favour of State by principle of escheat. [Marthanda Varma v. State of Kerala, (2021) 1 SCC 225]

Also Read:

2021 SCC Vol. 1 Part 1

Constitution of India — Arts. 19(1)(g) and (6) — Virtual currencies (VCs) or Cryptocurrencies — Reasonableness and proportionality of restrictions on right to carry on trade/business concerning VCs — Determination: RBI Circular dt. 6-4-2018 directing entities regulated by it (i) not to deal in virtual currencies nor to provide services for facilitating any person or entity in dealing with or settling virtual currencies, and (ii) to exit the relationship with such persons or entities, if they were already providing such services to them is not valid due to its being a disproportionate measure, despite the issuance of the circular being within the ambit of RBI’s powers. Test of proportionality, as laid down in Modern Dental College & Research Centre, (2016) 7 SCC 353, namely: (i) that the measure is designated for a proper purpose, (ii) that the measures are rationally connected to the fulfilment of the purpose, (iii) that there are no alternative less invasive measures, and (iv) that there is a proper relation between the importance of achieving the aim and the importance of limiting the right, is not satisfied by the impugned circular, when virtual currencies are themselves not banned. [Internet & Mobile Assn. of India v. Reserve Bank of India, (2020) 10 SCC 274]

Consumer Protection — Services — Banking/Shares/Securities and other Financial Services — Hire-purchase: Repossession of vehicle by financier/owner in accordance with the terms and conditions of the hire-purchase agreement, hired under a hire-purchase agreement, on default of payment by hirer and nonreleasing of the same on the promise of payment does not amount to deficiency of service. True nature of hire-purchase agreement contrasted with loan transaction (wherein goods are sold to customer and then hypothecated or pledged back to financier by the customer), explained. Financier, as opposed to the hirer is considered as the real owner of the hired vehicle in transaction which is clearly a hire-purchase agreement (and is found not to be a loan transaction). A hire-purchase agreement is an executory contract of sale, conferring no right in rem on the hirer, until the conditions for transfer of the property to him have been fulfilled and the financier continues to be the owner of the goods under a hire-purchase agreement while the hirer simply pays for use of the goods and for the option to purchase them. Until the option to purchase is exercised by the hirer upon payment of all amounts agreed upon between the hirer and the financier, the hirer remains a bailee of the goods covered by the hire-purchase agreement. Whether the transaction between a financier and a purchaser/hirer is a hire-purchase transaction, or a loan transaction, is to be determined from the terms of the agreement, considered in the light of surrounding circumstances. However, even a loan transaction, secured by right of seizure of a financed vehicle, confers licence to the financier to seize the vehicle. [Magma Fincorp Ltd. v. Rajesh Kumar Tiwari, (2020) 10 SCC 399]

Customs Tariff Act, 1975 — S. 9-A — Anti-dumping duty — Purpose of — Dumping — Meaning of and factors constituting it: Completion of investigation into allegations of dumping, within prescribed time period is essential. Designated Authority enlarging period of investigation and seeking contemporaneous data for enlarged time-frame when circumstances so warrant, permissible. Such action cannot be termed as arbitrary. [Directorate General of Trade Remedies v. Andhra Petrochemicals Ltd., (2020) 10 SCC 209]

Education Law — Reservation of Seats/Quota/Exemption/Priority/Affirmative Action/Reverse Discrimination — Generally — Permissibility, Nature and scope — Reservation — Academic session from which to be implemented: In this case, it was observed that since Amending Act does not contemplate that benefit of reservation has to be granted in ongoing academic session, therefore, University was at liberty to decide to extend benefit from next academic session. Provision for commencement of Amending Act “at once” means implementation of the Act within a reasonable time. Decision of Executive Council of University was taken within a reasonable time and cannot be said to be arbitrary as admission process was initiated before Amending Act came into force. Therefore, it was not possible to give effect to provisions of the Amending Act from academic session 2019-2020. Hence, action of University to grant benefit of Amending Act from next academic session of 2020 2021 cannot be said to be unreasonable and is a possible decision in terms of Amending Act. [Shreyas Sinha v. W.B. National University of Juridical Sciences, (2020) 10 SCC 227]

Registration Act, 1908 — S. 17(2)(vi): Compromise decree comprising immovable property which is the subject-matter of the suit or proceeding in question, held, does not require registration. It is only a compromise decree comprising immovable property other than that which is the subject-matter of suit or proceeding in question which requires registration. [Gurcharan Singh v. Angrez Kaur, (2020) 10 SCC 250]

Registration Act, 1908 — S. 17(2)(vi): Compromise decree comprising immovable property which is the subject-matter of the suit or proceeding in question, held, does not require registration. It is only a compromise decree comprising immovable property other than that which is the subject-matter of suit or proceeding in question, which requires registration. [Mohd. Yusuf v. Rajkumar, (2020) 10 SCC 264]

Service Law — Pension — Entitlement to pension: In this case, there was absorption of respondents in Rajasthan SRTC on closing down of Rajasthan State Agro Industries Corporation Ltd. vide order dt. 3-10-1996. Pursuant to Noti. dt. 12-2-1997 applications were invited from absorbed employees to opt for either CPF Scheme or GPF and Pension Scheme, respondents opted for pension within stipulated time. Respondents were governed by CPF Scheme in erstwhile Corporation. Regional Provident Fund Commissioner transferred contribution of employees as well as of employer to Rajasthan SRTC. Denial of pension on ground of non-receipt of capital amount from erstwhile Corporation, held, not proper. [Rajasthan SRTC v. Goverdhan Lal Soni, (2020) 10 SCC 234]

Arbitration and Conciliation Act, 1996 — Ss. 47 to 49 r/w S. 43 — Foreign award — Limitation period for filing application for its enforcement: Applicability of Art. 136 of the Limitation Act, 1963 is restricted to decrees of a civil court in India. Deeming fiction under S. 49 i.e. for consideration of arbitration award as a deemed decree of the court is not applicable in determining the limitation period governing enforcement of foreign awards. [Union of India v. Vedanta Ltd., (2020) 10 SCC 1]

Constitution of India — Art. 21: Investigation by an officer who himself is informant/complainant in the case is not barred under NDPS Act or CrPC. Hence, in a case where informant officer himself is investigator, by that itself it cannot be said that investigation is vitiated on ground of bias or the like factor. Question of bias or prejudice would depend upon facts and circumstances of each case. [Mukesh Singh v. State (NCT of Delhi),(2020) 10 SCC 120]

Criminal Procedure Code, 1973 — S. 177 — Jurisdiction of criminal courts: Principles and factors that need to be kept in mind while determining jurisdiction (particularly territorial jurisdiction) of criminal courts in inquiries and trials, explained in detail. [Kaushik Chatterjee v. State of Haryana, (2020) 10 SCC 92]

Criminal Procedure Code, 1973 — S. 438 — Anticipatory bail: In this case, blanket direction by the High Court restraining the IO from taking coercive measures against respondent-accused, directed to be stayed, because the respondents found protected by an interim stay of arrest by the Sessions Court. [Neeharika Infrastructure (P) Ltd. v. State of Maharashtra, (2020) 10 SCC 118]

Criminal Procedure Code, 1973 — Ss. 437(3), 438(2) and 439(1)(a) — Bail — Imposition of conditions — Relevant considerations for: Human right to dignity and the protection of constitutional safeguards should not become illusory by the imposition of conditions which are disproportionate to the need to secure the presence of the accused, the proper course of investigation and eventually to ensure a fair trial. The conditions which are imposed by the court must bear a proportional relationship to the purpose of imposing the conditions. The nature of the risk which is posed by the grant of permission as sought in this case must be carefully evaluated in each case. [Parvez Noordin Lokhandwalla v. State of Maharashtra, (2020) 10 SCC 77]

Election — Election Petition/Trial — Exercise of Power — Relief — Declaration of election petitioner as returned candidate, on succeeding in election petition: Rule for exclusion of votes secured by corrupt practices by returned candidate in computation of total votes and consequential declaration of candidate who secured the next highest number of votes, as duly elected can be applied only when there are just two candidates at an election. If there are more than two candidates like in instant case, the aforesaid rule cannot be made applicable. [Muniraju Gowda P.M. v. Munirathna, (2020) 10 SCC 192]

Penal Code, 1860 — S. 306 — Ingredients: Principles summarised regarding what are the necessary ingredients for the offence under this section. [Gurcharan Singh v. State of Punjab, (2020) 10 SCC 200]

Penal Code, 1860 — Ss. 302, 392, 420, 201 and 34 — Murder trial — Circumstantial evidence: In this case, prosecution failed to establish and prove complete chain of events. Contradictions and lacunae in prosecution case noted by trial court, held, were not minor in nature, hence, acquittal was restored. [Anwar Ali v. State of H.P.,(2020) 10 SCC 166]

 Penal Code, 1860 — Ss. 90, 375, 376, 323 and 341 — Consent of prosecutrix to physical relationship: Consent given under misconception of fact is no consent in eyes of law but, misconception of fact, has to be in proximity of time to occurrence, and cannot be spread over period of 4 yrs, as in this case. Furthermore, appellant did not make any false promise or intentional misrepresentation of marriage, which led to establishment of physical relationship between parties. Prosecutrix was herself aware of obstacles in their relationship because of different religious beliefs. In this case, consent to physical relationship by prosecutrix was conscious, and informed choice was made by her, after due deliberation, it being spread over long period of time, coupled with conscious positive action not to protest. Conviction of accused under Ss. 376, 323 and 341, reversed. [Maheshwar Tigga v. State of Jharkhand, (2020) 10 SCC 108]

Central Excise Act, 1944 — Ss. 4(1)(a) and (b) (as existing prior to 1-7-2000) r/w Central Excise (Valuation) Rules, 1975 — Normal price, in undervaluation cases — Method for determination of: The method of valuation prescribed under S. 4(1)(a), as it stood before 1-7-2000, was directly linked to the normal price for an ordinary sale in the course of wholesale trade and in cases where normal price was not ascertainable, the same would fall under S. 4(1)(b) and the valuation in such cases had to be done in terms of the Central Excise (Valuation) Rules, 1975. Further, the normal price need not be the same universally, but could vary from one class of buyers to another or from one place of removal to another. [CCE v. Cera Boards & Doors, (2020) 9 SCC 662]

Education Law — Examination — Unfair means/Cheating/Leakage of question Paper/Cancellation of examination — Fraudulent examination process: Jharkhand State open exam process, held, is a complete fraud. It is fault of University to some extent which did not carry out an appropriate verification as also State Government which should have kept a watch for such fraudulent exam systems which operate out of one room. Since exam system is found fraudulent, University and State Government should take immediate corrective action and also bring defaulters to book. Based on such a fraudulent exam system, petitioner students will never have a recognised plus two status and to give such students opportunity to get a degree from University will create a great anomaly. [Sahir Sohail v. Dr A.P.J. Abdul Kalam Technical University, (2020) 9 SCC 696]

Human and Civil Rights — Humanitarian and Natural Disasters, Epidemics and Pandemics — Epidemics and Pandemics — COVID-19 Pandemic: In this case, interim bail/parole/furlough has been granted to undertrials/convicted persons to decongest jails to prevent spread of COVID-19 Virus. Denial of said benefit to certain class of undertrials/convicted persons based on nature of offence and length of sentence, held valid as reasonable classification where circumstances so warrant, is permissible. Intention of order passed in Contagion of COVID-19 Virus in Prisons, In re, 2020 SCC OnLine SC 344, clarified. However, liberty granted to petitioners to approach the High-Powered Committee set up in terms of above order of Supreme Court, if situation required modification of classification. Further, liberty granted to undertrials/convicted persons concerned to approach competent court if any discrimination is alleged. [National Alliance For People’s Movements v. State of Maharashtra, (2020) 9 SCC 698]

Registration Act, 1908 — S. 17(2)(v) or S. 17(2)(vi) — Family settlement/arrangement: It is cl. (v) of S. 17(2) which is attracted in the case of a family settlement/arrangement, which pertains to execution of any document creating or extinguishing right, title or interest in an immovable property amongst the family members. Thus, the dictum in Kale, (1976) 3 SCC 119 is attracted. S. 17(vi) of the 1908 Act is not attracted. Hence, the issue of compulsory registration of a family settlement would depend on whether document in dispute: (A) created or transferred for the first time a right in immovable property, or, (B) was a memorandum which only recorded pre-existing rights in immovable property or arrangement(s) or terms already settled between the parties in respect of immovable property. It is only in Case (A) that the document would require compulsory registration. [Ravinder Kaur Grewal v. Manjit Kaur, (2020) 9 SCC 706]

Insolvency and Bankruptcy Code, 2016 — Ss. 30(2), 30(4) and 31 r/w S. 61(3) — Decision of Committee of Creditors (CoC) qua feasibility and viability of resolution plan: If all the factors that need to be taken into account for determining whether or not the corporate debtor can be kept running as a going concern have been placed before the Committee of Creditors and CoC has taken a conscious decision to approve the resolution plan, then the adjudicating authority cannot interfere with the same. [Karad Urban Coop. Bank Ltd. v. Swwapnil Bhingardevay, (2020) 9 SCC 729]

Education Law — Professional Colleges/Education — Law Schools/Colleges — Admission: In this case, admission notification was released by National Law School of India University, Bengaluru for admission to five-year integrated BA, LLB (Hons.) Programme, 2020-21. Common Law Admission Test (CLAT) was already been notified and R-1 was also part of it and was postponed to 28-9-2020. Respondents directed to file their reply. Further directed that neither result shall be declared nor any admission be made consequent thereto. Conducting of examination shall be subject to outcome of writ petition. [Rakesh Kumar Agarwalla v. National Law School of India University,(2020) 9 SCC 746]

Telecommunications Laws — Telecom Agreement/Telecom Licence/Spectrum Allocation/Scams/Auction/Licence Fees — Licence fees — National Telecom Policy, 2012 — Sharing Guidelines dt. 24-9-2015: Past AGR dues of the original licensee is not a liability of the operator permitted to share the spectrum of the original licensee. Spectrum sharing is a policy that permits the sharing of radio access network equipment of operators. Further, the Sharing Guidelines do not stipulate anything about the past dues of the sharing operators. Further, in the case of sharing spectrum, the liability of the operator would be to the extent of using the spectrum only, and the liability of the sharing operator would be to the extent of the remaining spectrum used by it. Therefore, there shall not be any liability of the said operator with respect to payment of the past dues (post shared) of the sharing operator licensee. [Union of India v. Assn. of Unified Telecom Service Providers of India, (2020) 9 SCC 748]

National Green Tribunal Act, 2010 — Ss. 14, 2(c), 2(m), 19 and 26: NGT does not have the power to issue orders to State Government to direct and/or instruct and/or order dealers, outlets and petrol pumps not to supply fuel to vehicles which did not have a valid pollution under control (PUC) certificate. A vehicle not complying with the requirement of displaying a valid PUC certificate cannot be debarred from being supplied with fuel by any dealer or any outlet or petrol pump. Other measures as contemplated in the various Environmental Acts and Rules applicable can be imposed in accordance with law by NGT to ensure compliance with PUC certificate requirements, but not stoppage of supply of fuel. [State of M.P. v. Centre for Environment Protection Research & Development, (2020) 9 SCC 781]

Motor Vehicles Act, 1988 — Ss. 173 and 166 — New plea: Plea of contributory negligence, false computation of income, compensation under different heads is not maintainable before Supreme Court for the first time. [Lalan D. v. Oriental Insurance Co. Ltd., (2020) 9 SCC 805]

Constitution of India — Art. 136: SLP preferred only against order dismissing review petition is not maintainable when main judgment of High Court has not been challenged. [MCD v. Yashwant Singh Negi, (2020) 9 SCC 815]

Income Tax — Income — Income arising within or earned in India — Income derived from business operation in India — Taxability of — Exemption under applicable Double Taxation Avoidance Agreement (DTAA): In this case, Art. 5(3) of the DTAA predicated that notwithstanding the preceding provisions of the Article concerned, which would mean Arts. 5(1) and 5(2), the establishment in question would still not be a PE, if any of the clauses in Art. 5(3) are applicable. It was held by the Supreme Court that the nature of activities carried on by respondent through its liaison office in India, as permitted by RBI, are in the nature of “preparatory or auxiliary character”. Hence, they are covered by Art. 5(3)(e) of the DTAA between India and UAE, and fixed place used by respondent as liaison office in India, would not qualify as PE in terms of Arts. 5(1) and 5(2) of the said DTAA on account of non obstante and deeming clause in Art. 5(3) of the DTAA. Hence, the said activity of the respondent is not amenable to tax liability in terms of Art. 7 of the DTAA. [Union of India v. UAE Exchange Centre, (2020) 9 SCC 329]

Maharashtra Regional and Town Planning Act, 1966 (37 of 1966) — S. 88 and Ch. VII (Ss. 126 to 129) — Cohesive and harmonious construal of S. 88: S. 88 cannot be read in isolation and has to be read along with provisions under Ch. VII (Ss. 126 to 129). Thus, held, mere declaration of Town Planning Scheme does not result in vesting of the land in question in the authority concerned, unless the land has been acquired properly in accordance with law. [Hari Krishna Mandir Trust v. State of Maharashtra, (2020) 9 SCC 356]

Civil Procedure Code, 1908 — S. 11 — Res judicata: Issue only collaterally or incidentally decided in earlier proceedings, held, would not operate as res judicata in proceedings where the issue is directly and substantially involved. Test to be applied to ascertain whether the matter was directly and substantially in issue, explained. The test is whether the issue was necessary to be decided for adjudicating on the principal issue and was decided: if it is clear that the earlier judgment was in fact based upon that decision, then it would be res judicata in a latter case, but not otherwise. Such determination is to be made on the facts of each case. Examination of pleadings, issues framed and judgment of the earlier proceedings is required. [Nand Ram v. Jagdish Prasad, (2020) 9 SCC 393]

Aviation Law — General Principles re Liability/Expected Service Standards for Carriage of Goods and Persons/Deficiency in service: Departure of flight without passenger who had been issued boarding pass does not amount to deficiency of service, when such passenger fails to reach the boarding gate in time. [Indigo Airlines v. Kalpana Rani Debbarma, (2020) 9 SCC 424]

 Arbitration and Conciliation Act, 1996 — S. 34: Limitation period for challenging arbitral award: Maximum outer limit of three months plus 30 days is mandatory. Where challenge to award was filed when award was at execution stage, it was well beyond the above maximum limitation period. [BBM Enterprises v. State of W.B., (2020) 9 SCC 448]

Constitution of India — Art. 217 — Appointment of High Court Judges — Inordinate delays in making recommendation to fill vacancies by High Court Collegiums: High Court Collegiums must make endeavour to recommend names against vacancies as early as possible even if they are not made at one go. Some Courts do not recommend fresh names without earlier list being cleared. It was held that there is no such impediment and it should be a continuing process of recommending names without waiting for result of earlier recommendations till all recommendations are made. Otherwise, time period to process names is such that by time appointments take place, another set of vacancies arise which brings problem of vacancies to square one. Detailed report regarding existing and expected vacancies called for from all High Courts, explaining as to what is the time period within which recommendations can be expected to be made. [PLR Projects (P) Ltd. v. Mahanadi Coalfields Ltd., (2020) 9 SCC 452]

Environment Law — Environmental Clearance/NOC/Environment Impact Assessment (EIA) — Grant of/Quashment of/Irregularity in/Judicial review: In this case there were issues whether entire material including report of Joint Committee which was relevant to consider case of parties herein was available before NGT and whether NGT was justified in proceeding with matter in manner as it has presently done. Hence, the matter was remanded to NGT for consideration afresh after taking into account the relevant report which had now become available and additional relevant material if sought to be adduced by the parties. [Wonder Projects Development (P) Ltd. v. Union of India, (2020) 9 SCC 454]

Ancient and Protected Monuments, Archaeology, Art and Antiquities — Administration, Conservation, Maintenance, Refurbishment, Alteration, etc. of Monuments — Mahakaleshwar Temple, Ujjain: Direction issued regarding steps to be taken to prevent deterioration of Shivalinga and steps to be taken to preserve temple structure, including Chandranageshwar Temple. [Sarika v. Mahakaleshwar Mandir Committee, (2020) 9 SCC 460]

Criminal Procedure Code, 1973 — S. 438 — Anticipatory bail cases — Posting of: It is the duty of the Registry of court to post such cases with due diligence. In this case, order in anticipatory bail case made returnable in four weeks, but not listed for almost a year. Registry directed to furnish an explanation on the administrative side as to why the matter was not listed as directed after four weeks, more so, in the nature of matter being of anticipatory bail. [Mahtab Alam v. State of Bihar, (2020) 9 SCC 466]

Commercial Courts Act, 2015/Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 — S. 12-A — Time prescribed under for completing process of compulsory pre-litigation mediation and settlement: Said time shall stand extended from time when COVID-19 Lockdown is lifted plus 45 days thereafter. However, if period of Lockdown plus 45 days has expired, no further period shall be liable to be excluded. [Cognizance For Extension of Limitation, In re, (2020) 9 SCC 468]

Service Law — Departmental Enquiry — Judicial review/Validity — Scope: Power of judicial review is distinct from appellate power exercised by departmental appellate authority. Further held, judicial review is evaluation of decision-making process and not merits of decision itself which is to ensure fairness in treatment and not fairness of conclusion. Judicial review ought to be used to correct manifest errors of law or procedure which might result in significant injustice or violation of principles of natural justice. Moreover, where appellate or reviewing authority comes to a different conclusion, ordinarily decision under appeal ought not to be disturbed insofar as it is plausible and not perverse. [Pravin Kumar v. Union of India, (2020) 9 SCC 471]

Trusts and Trustees — Religious and Charitable Endowments and Trusts — Nanded Sikh Gurudwara Sachkhand Shri Hazur Apchalnagar Sahib Act, 1956 (37 of 1956) — Ss. 6(1)(viii), 6(2), 6(3), 2(e) & 2(c) and Ch. II r/w R. 6 of the 1958 Rules: Nomination of four members under S. 6(1)(viii) by State Government to the statutory Gurudwara Board, not permissible. S. 6(3) does not apply to the nomination to be made under S. 6(1)(viii) and the exclusive statutory authority for making the nomination of four members under S. 6(1)(viii) is vested in the Diwan. Expression “Diwan” under 1956 Act is an institution and not an individual person. [Bahginder Singh v. Manjieeth Singh, (2020) 9 SCC 484]

Civil Procedure Code, 1908 — Ss. 96, 100 and Or. 1 R. 10 — Appeal from original decree — Maintainability — Locus standi — “Person aggrieved” — Rejection of leave to appeal — Legality: In this case, judgment and decree not being a judgment in rem, holding that certain transactions, in no way concerning the interest of the applicant appellants, were time-barred and granting injunctive relief in respect of only the parties to the suits concerned. Appellants could in no way establish how their interests were affected in any way by decree in question. Thus, held, appellants failed to demonstrate that they were prejudicially or adversely affected by decree in question or that any of their legal rights were jeopardised so as to bring them within ambit of expression “person aggrieved”. [V.N. Krishna Murthy v. Ravikumar, (2020) 9 SCC 501]

Stamp Act, 1899 — S. 40(1)(b) — Imposition of extreme penalty i.e. ten times the amount of the proper duty or deficient portion thereof — Exercise of discretion in respect of: The amount of penalty not exceeding ten times is not an amount to be imposed as a matter of course. Neither is imposition of penalty of ten times under S. 40(1)(b) automatic nor can it be mechanically imposed. Imposition of the extreme penalty i.e. ten times of the duty or deficient portion thereof cannot be based on the mere factum of evasion of duty. Reasons such as fraud or deceit in order to deprive the Revenue or undue enrichment are relevant factors to arrive at a decision as to what should be the extent of penalty under S. 40(1)(b). [H.C. Dhanda Trust v. State of M.P.,(2020) 9 SCC 510]

Penal Code, 1860 — S. 302 or S. 304 Pt. II [S. 300 Exception 4]: In this case, there was assault by accused on head of deceased with lathi, leading to his death in hospital the next day. It was held that circumstances, manner of assault, nature and number of injuries, all have to be considered cumulatively, to decipher intention or knowledge, as the case may be. Assault was not premeditated but took place in heat of passion due to land dispute. The act was done with knowledge that it was likely to cause death, but without any intention to cause death. Hence, conviction altered from S. 302 to S. 304 Pt. II IPC. As accused had already undergone maximum period of sentence prescribed therein, therefore, he was directed to be set at liberty forthwith. [Jugut Ram v. State of Chhattisgarh, (2020) 9 SCC 520]

Penal Code, 1860 — S. 302 or S. 304: Where death was due to single injury caused by accused, legal position summarised whether S. 302 would be attracted or not. [Stalin v. State, (2020) 9 SCC 524]

T.N. Urban Land (Ceiling and Regulation) Act, 1976 (24 of 1978) — Ss. 20 and 21 — Exemption granted under the Act — Non-compliance with conditions of — Measures that may be taken by competent authority — Scope of: There must be strict compliance with statutory regime. Imposition of sanctions beyond what is expressly permitted by statute is not permissible. Further held, any undertaking given by the party concerned cannot expand the statutory jurisdiction of the authority concerned. Competent authority is only permitted by the 1976 Act to withdraw the order of exemption or to declare such land to be excess land under S. 21, with its attendant consequences as provided under the 1976 Act. [Shridhar C. Shetty v. Collector, (2020) 9 SCC 537]

Constitution of India — Art. 254 — Repugnancy under Art. 254 — Meaning of: Preconditions for question of repugnancy under Art. 254, when can be considered. Principles summarised regarding tests for whether laws are repugnant to each other. Doctrine of repugnancy not attracted if laws partially or incidentally cover the same area in a different context and to achieve a different purpose. In case of repugnancy, Central law prevails over State law. [West U.P. Sugar Mills Assn. v. State of U.P., (2020) 9 SCC 548]

Wealth Tax Act, 1957 — Ss. 3 and 21-AA — Incidence of wealth tax: Law explained regarding persons to be assessed under wealth tax. Social club such as appellant Bangalore Club, held, not covered under S. 3(1) if looked at in isolation without considering S. 21-AA. [Bangalore Club v. CWT, (2020) 9 SCC 599]

Insolvency and Bankruptcy Code, 2016 — S. 7 — Acknowledgement of debt by corporate debtor in earlier insolvency proceedings — Relevance of: Counter-affidavit of corporate debtor in earlier petition, held, was not a pleading of the insolvency applicant in the earlier insolvency proceedings. Rather, it was an admission of the outstanding debt by the corporate debtor and was admissible qua debt acknowledgement in later insolvency proceedings. [Shri Equipment Finance Ltd. v. Rajeev Anand, (2020) 9 SCC 623]

Narcotic Drugs and Psychotropic Substances Act, 1985 — Ss. 42, 55 and 20(b)(ii)(B): In this case of seizure of ganja there was official witnesses and support from independent witnesses was absent. Testimony of police officials was found reliable and trustworthy. No enmity was found between the police witnesses and the accused. No such defence was taken in the statement under S. 313 CrPC.  It was held that legally, testimony of the official witnesses cannot be rejected on the ground of non-corroboration by independent witness. Resultantly, absence of independent support to the official witnesses, held, not fatal. Compliance with Ss. 42 and 55 was fully proved on the record. Sample seized and sealed was also proved to be sent to the FSL. Hence, conviction was affirmed. [Rizwan Khan v. State of Chhattisgarh, (2020) 9 SCC 627]

Criminal Procedure Code, 1973 — S. 197 — Sanction for prosecution — When not to be accorded: In this case, there was exoneration on merits by CVC, where allegation found to be not sustainable at all and accused held innocent. Criminal prosecution on same set of facts and circumstances, cannot be allowed to continue, on underlying principle of higher standard of proof in criminal cases. No sanction ought to be accorded and no offence under IPC made out. Judgment of courts below, set aside, and accused discharged from offences under IPC. [Ashoo Surendranath Tewari v. CBI, (2020) 9 SCC 636]

Motor Vehicles Act, 1988 — Ss. 166 and 173 — Fatal accident — Compensation — Consortium — What is and when may be awarded: Expression “consortium” includes spousal consortium, parental consortium as well as filial consortium. It is certainly not the law that consortium is only payable as a spousal consortium and consortium is not payable to children and parents. Apart from spousal consortium, parental and filial consortium, held, are payable in fatal accident claim. [New India Assurance Co. Ltd. v. Somwati, (2020) 9 SCC 644]

Hindu Succession Act, 1956 — S. 6 [as substituted by the Hindu Succession (Amendment) Act, 2005 w.e.f. 9-9-2005] — Daughter’s right in coparcenary property under substituted S. 6 of the HS Act, 1956: Daughter born before date of enforcement of the 2005 Amendment Act, held, has same rights as daughter born on or after the amendment. Non-requirement of coparcener father to be alive on date of coming into force of the said amendment, explained. [Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1]

Constitution of India — Art. 136 — Maintainability of SLP: SLP against order dismissing review on merits, when original order is not challenged, not maintainable. Law summarized on the matter. [T.K. David v. Kuruppampady Service Cooperative Bank Ltd., (2020) 9 SCC 92]

Criminal Procedure Code, 1973 — S. 167(2) and S. 437 — Default bail/statutory bail under S. 167(2): Indefeasible right to default bail/statutory bail under S. 167(2), once statutory period expires, discussed. Condition(s) if may be imposed as: (A) precondition(s) to release on default bail, and (B) conditions post release on default bail for cooperation in investigation, reporting to police station, etc., explained. This contrasted with position obtaining in regard to regular bail under S. 437. [Saravanan v. State, (2020) 9 SCC 101]

Constitution of India — Arts. 226 and 227 — Judicial Review — Exercise of Power — Limitations thereon: High Court purporting to take over role and function of Expert Committee, not permissible. When Government accepted decision of Expert Committee and no arbitrariness or settled vitiating ground was established thereagainst, held, High Court cannot venture to sit as an expert over and above Expert Committee, in absence of any arbitrariness or any other settled ground of interference in exercise of power of judicial review. [State of Kerala v. RDS Project Ltd., (2020) 9 SCC 108]

Stamp Act, 1899 — Ss. 40(1)(b) and 3 — Deficient stamp duty and penalty — Person who can be compelled to pay: Next purchaser or subsequent transferee of the property is liable to pay pending stamp duty and penalty. Furthermore, the same cannot be deposited through postdated cheque. [MSD Real Estate LLP v. Collector of Stamps, (2020) 9 SCC 113]

Supreme Court Rules, 2013 — Or. XLVII R. 1: Opening expression “Court may review its judgment or order” confers unfettered power on Court to entertain review petitions arising from judgments or orders passed in writ petitions filed under Art. 32 of the Constitution. Comma used after this expression has to be read disjunctively as separating it from remaining contents of R. 1, which provide exceptions in respect of civil or criminal proceedings. [Kantaru Rajeevaru (Right To Religion, In Re-9 J.) (2) v. Indian Young Lawyers Assn., (2020) 9 SCC 121]

Arbitration and Conciliation Act, 1996 — Ss. 11 and 7: In case of two different arbitration clauses in two related agreements between the same parties, principles explained regarding determination of appropriate clause that will operate in the factual matrix. The same would depend on the nature of the dispute raised between the parties. To determine the same it would be necessary to examine the agreements and other documents on record which reveal the true nature of the dispute raised. [Balasore Alloys Ltd. v. Medima LLC, (2020) 9 SCC 136]

Consumer Protection — Consumer/Consumer Dispute/Locus Standi — Class Action/Representative Complaints/Consumer Association: S. 12(1)(c) of the CP Act applies to a situation where there are numerous consumers having same interest in the matter. In that case, a complaint may be filed in a representative capacity by one or more consumers, with the permission of District Forum, on behalf of or for benefit of all the consumers so interested. The test under S. 12(1)(c) is of the sameness of interest. Procedural requirements under Or. 1 R. 8 CPC are attracted in such case by virtue of provisions of S. 13(6) of the CP Act. [Vikrant Singh Malik v. Supertech Ltd., (2020) 9 SCC 145]

Criminal Procedure Code, 1973 — Ss. 207(v) & (iii) r/w provisos I and II & Ss. 173(5) and (6) — Supply to the accused of copy of police report and documents appended thereto: Magistrate can withhold only such document referred to in Cl. (v) of S. 207 which in his opinion is “voluminous”, and not for any other reason. In case of such voluminous document, however, accused can be permitted to take inspection of document concerned either personally or through his pleader in court. Thus, even if investigating officer appends his note in respect of any particular document regarding its exclusion from copies to be granted to accused, that will be of no avail as his power is limited to do so only in respect of statements referred to in S. 173(6) CrPC. [P. Gopalkrishnan v. State of Kerala, (2020) 9 SCC 161]

Narcotic Drugs and Psychotropic Substances Act, 1985 — Ss. 35 and 54 and Ss. 8(c)/20(b)(ii)(C) — Search and seizure: In this case there was recovery of contraband (ganja) from a house and conviction of accused under Ss. 8(c)/20(b)(ii)(C), was based on mere presumption of ownership of aforesaid house, without any finding of conscious possession of house with accused, so as to attribute presumption under NDPS Act against him with regard to recovery of contraband. As the guilt of accused was not established beyond reasonable doubt, conviction was reversed. [Gangadhar v. State of M.P., (2020) 9 SCC 202]

Service Law — Promotion — Upgradation of Post/Cadre — Promotion or Upgradation: In this case there was deployment of Telephone Operators as Radio Operators with higher pay scale. While determining that whether it was promotion or upgradation and consequent entitlement/non-entitlement to ACP Scheme, it was held that sometimes there is fine distinction between promotion and upgradation requiring holistic view to be taken considering factual matrix of each case. [Rama Nand v. State (NCT of Delhi),(2020) 9 SCC 208]

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 — Ss. 2(1)(c) and (d): “Bank”/“Banking company” under SARFAESI Act, held, includes all cooperative banks, whether registered under State legislation or otherwise. [Pandurang Ganpati Chaugule v. Vishwasrao Patil Murgud Sahakari Bank Ltd., (2020) 9 SCC 215]