Cases ReportedSupreme Court Cases

Civil Procedure Code, 1908 — Ss. 47 and 115 — Exercise of power by executing court — Limitations on: It cannot travel beyond scope of decree/order. Any order passed by executing court by travelling beyond decree/order under execution would render such orders as without jurisdiction. [S. Bhaskaran v. Sebastian, (2019) 9 SCC 161]

Companies Act, 2013 — Ss. 212(6)(ii), (7) and 447 — Conditions imposed under S. 212(6)(ii) for grant of bail in connection with offences under S. 447 — Mandatory nature of: Restrictions under S. 212(6) with respect to grant of bail are in addition to those already provided in CrPC. Thus, it is necessary to advert to principles governing grant of bail under S. 439 CrPC. Specifically, heed must be paid to stringent view taken by Supreme Court towards grant of bail with respect of economic offences. [Serious Fraud Investigation Office v. Nittin Johari, (2019) 9 SCC 165]

Town Planning — Slum Rehabilitation/Development/Relocation — Redevelopment of land/slum rehabilitation: For permissibility of redevelopment of land/slum rehabilitation, when there exist disputes qua ownership/leasehold rights over the land, factors like principles of equity, balance of comparative hardship/mischief and availability of remedy by way of damages for injury caused to person claiming the leasehold rights over the land in question, are relevant. [Lullu Vas v. State Of Maharashtra, (2019) 9 SCC 175]

Right to Information Act, 2005 — Ss. 2(h)(ii) & (i) and Ss. 2(h)(a) to (d) — Applicability of RTI Act — Meaning and ambit of “public authority”: An NGO/society/institution not owned or controlled by Government, not having been created by an Act or notification, would still fall under ambit of “public authority” if it is substantially financed directly or indirectly by Government. Whether a body is substantially financed directly or indirectly by Government, would depend upon facts of each case and purpose of Act. [D.A.V. College Trust And Management Society v. Director Of Public Instructions, (2019) 9 SCC 185]

Specific Relief Act, 1963 — S. 5 — Recovery of possession of encroached upon land — Dispute as to boundaries — Encroachment of adjoining land — Matters to be established: In this case, it was held that the presumption as to accuracy of map drawn by Revenue Authorities validating claim of plaintiffs as to ownership of disputed strip of land under S. 83 of Evidence Act, 1872, could not be rebutted by defendant, even before Supreme Court as none of its arguments found to be tenable. Decree for handing over of possession of disputed land to plaintiffs, passed concurrently by three courts below, confirmed. [Rambhau Ganpati Nagpure v. Ganesh Nathuji Warbe, (2019) 9 SCC 202]

Armed Forces — Discharge/Dismissal — Interference with — When unwarranted: In this case, there was discharge of appellant, a habitual offender on account of seven red ink entries during his tenure of approximately 12 yrs, it was held that preliminary enquiry contemplated by Para 5(a) is not a court of enquiry into allegations against army personnel but has semblance of fair decision-making process keeping in view reply filed. Kind of enquiry required to be conducted depend on facts of each case. Test of preliminary enquiry is satisfied where explanation submitted by delinquent is considered and order passed thereon. In this case, appellant had not offered any explanation for his absence from duty on seven occasions except for giving vague family circumstance. Member of Armed Forces cannot take his duty lightly and abstain from duty at his will, hence, order of discharge was justified. Further held, court of enquiry stands specifically excluded under Para 5(a). [Satgur Singh v. Union of India, (2019) 9 SCC 205]

Arbitration and Conciliation Act, 1996 — S. 11(6-A) r/w Ss. 11(4) and 11(6) and S. 7(2): Arbitration clause in document/agreement/conveyance compulsorily required to be stamped, but which is not duly stamped, is not enforceable, even post introduction of S. 11(6-A). Law laid down in SMS Tea Estates, (2011) 14 SCC 66, held, is in no way affected by introduction of S. 11(6-A), as said decision does not fall in expression “notwithstanding any judgment, decree or order of any Court” contained in S. 11(6-A). This is so, firstly, as enquiry by Court as to whether compulsorily stampable document, which contains arbitration clause, is duly stamped or not, is only an enquiry into whether such arbitration agreement exists in law, as it would not “exist” as a matter of law until such document is duly stamped. Secondly, it is enjoined by the provisions of the Stamp Act to first impound such document and see that stamp duty and penalty (if any) is paid before the agreement, as a whole, can be acted upon. Further, Stamp Act applies to such document as a whole and it is not possible to bifurcate the arbitration clause contained in such agreement. [Garware Wall Ropes Ltd. v. Coastal Marine Constructions And Engineering Ltd., (2019) 9 SCC 209]

Penal Code, 1860 — Ss. 302, 326-A and 460: In this case of death of woman due to acid attack, accused was sentenced to death, however, no particular depravity or brutality in acts of accused warranting classification of case as “rarest of the rare” was found, hence, death sentence commuted to life imprisonment. [Yogendra v. State Of M.P., (2019) 9 SCC 243]

Penal Code, 1860 — Ss. 306 and 498-A: In case of abetment of suicide and cruelty, there is need to establish conduct of accused which drove deceased to commit suicide. As in this case allegations of cruelty, harassment, mistreatment, etc. by appellant-husband which allegedly drove deceased wife to commit suicide, were not established at all and were neither based on testimony of family of deceased, nor alleged letter written by deceased shortly before her death, hence, acquittal was restored. [Jagdishraj Khatta v. State Of H.P., (2019) 9 SCC 248]

Armed Forces — Discharge/Dismissal — On ground of red mark entries — When permissible: It is imperative for Commanding Officer, even after award of such entries, to consider nature of offences for which entries were awarded and other relevant factors, since mere award of four red entries does not make discharge mandatory. In this case, red mark entries were made for the first time at a time when appellant had almost completed pensionable service. In light of overall view of facts and circumstances, held, discharge not justified. Hence, set aside with grant of all consequential benefits. [Narain Singh v. Union of India, (2019) 9 SCC 253]

Penal Code, 1860 — S. 302 r/w S. 34 — Murder — Circumstantial evidence: In this case there was murder of deceased by his neighbours, including appellant herein, due to previous enmity. Depositions of prosecution witnesses which stood rigour of cross-examination clearly supported prosecution version and established enmity between accused and deceased. This fact supported by PW 1, wife of deceased’s last seen evidence, her prompt complaint to police and forensic evidence which correlated recovered weapon to physical injuries on body of deceased, held, proves prosecution case beyond any reasonable doubt independent of extra-judicial confession. High Court, held, justified in upholding the conviction of appellant. [Sadayappan v. State, (2019) 9 SCC 257]

Penal Code, 1860 — S. 302 — Murder by firing from firearm at close range near teashops in city: In this case, deceased was killed in close range firing by appellant at instigation of deceased appellant, who was his father. The cause of death, being haemorrhage and shock caused by bullet injury from firearm, was established by PW 5 (doctor). The fact that there was no exit wound, nor assault weapon nor bullet recovered was immaterial as unshaken eyewitness account was corroborated by medical evidence. As place of occurrence was near two teashops within a city, it cannot be said that there would not have been adequate lighting at night. Absence of residue of undigested food in stomach of deceased was also insignificant as process of digestion in normal, healthy persons may continue for a long time after death, hence conviction was confirmed. [Prabhash Kumar Singh v. State Of Bihar, (2019) 9 SCC 262]

Infrastructure Laws — Ports, Port Trusts and Maritime Boards — Demurrage Charges/Port Rents and Other Dues/Auction of Cargo/Goods: In this case, for the period prior to 29-1-2001, the user of facilities at Kandla Port, Gujarat for storing imported/exported cargo, was liable to pay tariff as per the scales and terms of Noti. dt. 4-11-1993. Noti. dt. 4-11-1993 had specified rent/usage charges for open space, covered space, containers, office accommodation, etc., which charges were payable dependent upon the space and the length of time used for storage. Traffic Manager issued a Circular dt. 31-8-1998 stating that due to congestion and overstacking at Kandla Port, problems had cropped up with regard to accounting, stacking and delivery of cargoes, etc. and non-availability of adequate storage space for export cargoes and to overcome this problem, storage of cargoes would not be allowed for more than two months and the same was challenged by the appellant/user of facilities at the port. It was held by the Court that it was clear from the Notes of the notification, that the notification had empowered and left it to the Traffic Manager to deal with the question of unauthorised occupation, including the time-limits or period during which the goods could be authorised to be stored. Further, the notification had not specified when and in what circumstances use of the storage area would be treated as unauthorised as this was left to the wisdom of the Traffic Manager who was the person-in-charge and responsible for efficient and proper functioning of the Port operations and mandated to take the need-based decisions on the basis of prevalent facts and circumstances. In this case, validity of the notification not having being challenged, hence held that the Traffic Manager was competent to fix time-limit for storage and the levy of penalty for unauthorised occupation of the space for period beyond sixty days of storage as fixed vide the impugned circular and the circular was in conformity and in consonance with the notification and in particular Notes 1, 4 and 5 thereof. [Maheshwary Handling Agency (P) Ltd. v. Kandla Port Trust, (2019) 9 SCC 267]

Education Law — Employment and Service Matters re Educational Institutions — Appointment/Recruitment:  Separate interviews for post of Assistant Professor under general category and reserved category, held, illegal. Every person is first a general category candidate. Benefit of reservation is granted to SCs, STs, OBCs, etc. as is permissible in law. Concessions availed by reserved category candidates are in nature of age relaxation, lower qualifying marks, concessional application money, etc. If a reserved category candidate qualifies on merit, he will occupy general category seat. [Pradeep Singh Dehal v. State Of H.P., (2019) 9 SCC 276]

Rent Control and Eviction — Bona fide requirement of landlord: Once landlord established bona fide requirement on date of institution of case, it subsists irrespective of delay in adjudication of case. Declining relief to landlord on ground of delay is impermissible as it would encourage tenant to protract litigation. [D. Sasi Kumar v. Soundararajan, (2019) 9 SCC 282]

Environment Law — Development vis-à-vis Ecology: National, Urban and Rural Development — Constructed area which is to be treated as “built-up area” for reckoning environmental impact: Ruling in Goel Ganga Developers, (2018) 18 SCC 257, that municipal building laws regarding FSI and FAR are irrelevant for reckoning “built-up area” for environmental impact, held, not only does not in any way violate judgment of three-Judge Bench in Okhla Bird Sanctuary case, (2011) 1 SCC 744, but rather furthers the spirit of the law laid down therein. Concern of three-Judge Bench in Okhla Bird Sanctuary case, was not to reduce the ambit of “built-up area”, but rather to enhance it. [Goel Ganga Developers India (P) Ltd. v. Union Of India, (2019) 9 SCC 288]

Constitution of India — Arts. 226 and 227 — Exercise of power — Dismissal of writ petition at threshold where order under challenge itself based on earlier directions issued by High Court — Propriety of: In this case, it was held that as High Court did not examine certain important issues relating to release of land from acquisition proceedings, matter remanded for reconsideration. [Krishan Chander v. State Of Haryana, (2019) 9 SCC 292]

Government Grants, Largesse, Public Property and Public Premises — Cancellation of allotment: Remanding matter to competent authority for reconsideration of cancellation of allotment, not justifiable, where an aggrieved person had not even applied therefor and in the meantime, person to whom allotment had been validly made had altered its position based on the allotment. [Kasturibai Sukharam Khandelwal Trust v. Indore Development Authority, (2019) 9 SCC 299]

National Highways Act, 1956 — S. 3-J [as amended by National Highways Laws (Amendment) Act, 1997]: Said S. 3-J excluding applicability of LA Act, 1894 resulting in non-grant of solatium and interest in respect of lands acquired under National Highways Act, which were available if lands were acquired under Land Acquisition Act, 1894, held, violative of Art. 14 of the Constitution. [Union of India v. Tarsem Singh, (2019) 9 SCC 304]

Government Contracts and Tenders — Contractual Obligations and Rights — Privity and Third-Parties’ Obligations and Rights: In this case, there was no privity of contract between Central Government and appellant contractor. Contract of appellant was with Municipal Council concerned, which had invited tender for said contract under a Centrally sponsored scheme, without funds having been sanctioned for that municipality at the time by Central Government, nor were Central funds sanctioned for release before expiry of Scheme concerned. Though inter-governmental communication from Ministry of Urban Development sought release of Central funds there was no approval therefor from Finance Department. Since there was no approval from the Finance Department, held, appellant cannot claim such amount on basis of an interdepartmental communication where Ministry of Urban Development has sought release of funds from Ministry of Finance. High Court judgment declining to direct release of funds, was held, proper. [Madhoor Buildwell Private Limited v. Yeola Municipal Council, (2019) 9 SCC 350]

Evidence Act, 1872 — Ss. 101 to 104 and 111 — Pardanashin illiterate lady — Protection conferred by law upon: In this case, there were no pleadings by plaintiff as to her being pardanashin illiterate lady entitled to protection of law and that burden of proof should be shifted onto defendant to establish absence of fraud. Thus, it was held that protection of law afforded to such ladies could not be given, and onus of proof to establish that there was no fraud, could not be shifted onto defendant. [Ali Hussain v. Rabiya, (2019) 9 SCC 353]

Cases ReportedSupreme Court Cases

Armed Forces — Discharge — Exoneration in summary court-martial — Effect: Exoneration in summary court martial is no bar for initiation of discharge proceedings. In this case, since appellant did not possess requisite educational qualifications, he could not be continued in service and was rightly discharged in exercise of power under R. 13(3) Item 3 Table III of Army Rules. [Surendra Singh Yadav v. Chief Record Officer, (2019) 9 SCC 140]

Central Excise Act, 1944 — Ss. 4 and 11-AB: Dharmada i.e. a charitable donation taken from customers at the time of selling goods is not included in assessable value of the goods. [CCE v. JSW Steel Ltd., (2019) 9 SCC 130]

Central Excise Act, 1944 — Ss. 4, 4(3)(d) and 11-AB: Dharmada i.e. a charitable donation taken from customers at the time of selling goods is not included in assessable value of the goods. If an amount is paid at the time of the sale transaction for a purpose other than the price of the goods, it cannot form part of the transaction value. For the reason that such payment is not for the transaction of sale i.e. for the transfer of goods and any payment made alongside such a transaction cannot be treated as consideration for the goods. [D.J. Malpani v. CCE, (2019) 9 SCC 120]

Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 — R. 4-A and Sch. Cls. 2 and 3: After completion of exercise for preparation of NRC as per special procedure under the Rules, for preparation of National Register of Citizens (NRC) in State of Assam, fresh exercise on certain other parameters, held, not desirable. However, prayer of State Coordinator with regard to maintenance of security of NRC data on lines similar to security regime provided by AADHAR, accepted and directions issued accordingly. Manner in which inclusions and exclusions in updated NRC should be made available and published, specified. As regards validity of orders passed by Tribunal declaring persons to be of Indian origin or foreigners, decision of High Court should govern same. NRC shall be updated subject to decision of Constitution Bench wherein effect of Ss. 3(1)(a) and (b) of Citizenship Act, 1955 is pending consideration. [Assam Public Works v. Union of India, (2019) 9 SCC 70]

Consumer Protection — Consumer/Consumer Dispute/Locus Standi — Transaction with State or its Instrumentalities: Statutory dues/statutory fees levied by a statutory authority in lieu of service provided is amenable to Consumer Forum’s jurisdiction when there is a “deficiency in service” when statutory obligation/exaction does not amount to sovereign function, and there is no statutory exemption or immunity nor alternative forum provided for by statute. Though overinclusivity needs to be cautioned against, and Consumer Forums would need to satisfy themselves as to ingredients under Consumer Protection Act, before exercising their jurisdiction. It was also clarified that challenge to vires of a rule prescribing statutory dues/fees cannot be raised before Consumer Forum, and can only be agitated before High Court or Supreme Court. [Punjab Urban Planning & Development Authority v. Vidya Chetal, (2019) 9 SCC 83]

Courts, Tribunals and Judiciary — Judiciary — Judicial misconduct/ corruption/offences — Dismissal when warranted and proper: In this case, it was proved that appellant judicial officer consequent to his proximate relationship with lady lawyer passed certain judicial orders in favour of her clients including her mother and brother, hence, it was held that since appellant did not live up to expectations of integrity, behaviour and probity expected of him, no leniency can be shown. Besides, passing favourable orders because of proximity with lady lawyer is a kind of gratification which is impermissible. [Shrirang Yadavrao Waghmare v. State of Maharashtra, (2019) 9 SCC 144]

Criminal Procedure Code, 1973 — S. 438 — Power under, to grant anticipatory bail — Object: Refusal to grant anticipatory bail does not amount to denial of rights conferred upon applicant under Art. 21 of the Constitution. Though object of S. 438 CrPC is to safeguard personal liberty of an individual, a delicate balance is required to be established between the two rights i.e. safeguarding personal liberty of an individual and societal interest, and that (ii) grant of anticipatory bail, particularly in economic offences hampers the effective investigation in case, held, power to grant anticipatory bail being an extraordinary power, has to be exercised sparingly, more so, in cases of economic offences. Such bail must be granted only in exceptional cases after application of mind in relation to nature and gravity of accusation, possibility of applicant fleeing justice and other factors. Power to be invoked where the case alleged is frivolous or groundless. As regards money-laundering offences (as involved herein), further held, such offences involving several stages require a systematic and analysed investigation. Success in such investigation would elude if the accused knows that he is protected by a pre-arrest bail order. Exercising power to grant anticipatory bail in money-laundering cases would be to scuttle the statutory power of arrest enshrined in the relevant statute with sufficient safeguards. [P. Chidambaram v. Directorate of Enforcement, (2019) 9 SCC 24]

High Court Judges (Salaries and Conditions of Service) Act, 1954 — Ss. 14 & 2(1)(g), Sch. I Pt. I Rr. 2 & 7 and Pt. III — Acting Chief Justice of High Court whether entitled to pensionary benefits applicable to retired Chief Justice of High Court: In this case petitioner retired as acting Chief Justice after putting in 14 months of service in that capacity. While determining that whether he was entitled to pensionary benefits applicable to retired Chief Justice of High Court, the Supreme Court held that for computing pension for those 14 months, his pension shall be counted as Chief Justice i.e. Rs 1,21,575 p.a. and for rest of completed years of service his pension is to be computed as Judge of High Court. [K. Sreedhar Rao v. Union of India, (2019) 9 SCC 111]

Insolvency and Bankruptcy Code, 2016 — S. 7 — Applicability of bar of limitation vis-à-vis S. 7 application filed by a financial, where the recovery certificate against the debtor was issued more than three years prior to the date of filing of the application: In this case, a default of Rs 6.7 crores was found as against R-2. R-2 was declared an NPA on 23-12-1999 and ultimately, a Recovery Certificate dated 24-12-2001 was issued for this amount. A S. 7 petition was filed by R-1 on 21-7-2017 before NCLT claiming that this amount together with interest, which kept ticking from 1998, was payable. It was held by the Supreme Court that when the recovery certificate dated 24-12-2001 was issued, this certificate injured effectively and completely the appellant’s rights, as a result of which limitation would have begun ticking. Thus, the claim was held to be time-barred. [Vashdeo R. Bhojwani v. Abhyudaya Coop. Bank Ltd., (2019) 9 SCC 158]

Penal Code, 1860 — Ss. 304-B and 498-A — Dowry death by burning, and cruelty: In this case, conviction of appellant-accused (parents-in-law of deceased victim), was upheld by High Court under Ss. 304-B and 498-A IPC. Demands for dowry and ill-treatment/cruelty on failure to meet said demands, was established. Death was on account of burn injuries suffered by deceased which injuries were caused by use of kerosene, stood proved. Presumption under S. 113-B, Evidence Act, was also not rebutted, hence, conviction of appellants was confirmed. [Jagdish Chand v. State of Haryana, (2019) 9 SCC 138]

Penal Code, 1860 — Ss. 405 and 415 — Criminal breach of trust and cheating: Law recognises difference between simple payment/investment of money and entrustment of money or property. Mere breach of promise, agreement or contract does not, ipso facto, constitute offence of criminal breach of trust under S. 405 without there being clear case of entrustment. In context of contracts distinction between mere breach of contract and cheating would depend upon fraudulent inducement and mens rea. For sustaining these charges, existence of fraudulent or dishonest intention right at the beginning of transaction with mens rea must be shown. Breach of contractual obligations which are accompanied by fraudulent, dishonest or deceptive inducements resulting in involuntary and inefficient transfer stand criminalised under S. 415 IPC. [Satishchandra Ratanlal Shah v. State of Gujarat, (2019) 9 SCC 148]

Representation of the People Act, 1951 — Ss. 33-A(2) and 125-A (as inserted in 2002) — Disclosure of information: Disclosure of information in candidate’s affidavit regarding pending criminal case(s), held, now includes information as to case(s) in which only cognizance has been taken, over and above disclosure of information as to case(s) in which charge-sheet has been filed. Candidate bound to disclose, in affidavit filed under S. 33-A(2) while delivering nomination paper, case(s) pending against him in which cognizance has been taken by court in terms of Entry 5(ii) of Form 26 of the Conduct of Elections Rules, 1961, apart from case(s) in which charge-sheet has been filed and other information as required to be furnished. [Satish Ukey v. Devendra Gangadharrao Fadnavis, (2019) 9 SCC 1]

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 — Ss. 18-A and 3(2)(ii) — High Court Registry’s refusal to register anticipatory bail petitions in SC/ST atrocity matters: The act of numbering/registering a petition is purely administrative. Objections taken by High Court Registry on maintainability require judicial application of mind by utilising appropriate judicial standard. Moreover, S. 18-A of SC/ST Act itself indicates application of judicial mind. [P. Surendran v. State, (2019) 9 SCC 154]

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 — Ss. 13, 14, 17 and 35 [Prior to insertion of S. 17(4-A) vide Enforcement of Security Interest and Recovery of Debts Laws and Miscellaneous Provisions (Amendment) Act, 2016 (44 of 2016) w.e.f 1-9-2016] — Leasehold/Tenancy rights over secured asset: Tenant on basis of unregistered/oral tenancy agreement is not entitled to possession of secured asset for more than period prescribed under S. 107 of TP Act in case of tenancy under general law, or as prescribed under Rent Act concerned, if Rent Act Tenancy is established on facts. Benefit of Rent Act against SARFAESI Act proceedings is not available to a tenant-at-sufferance i.e. a tenant who comes into possession of land by lawful title, but who holds on to it, wrongfully, after termination of the lease or expiry of lease by efflux of time. [Bajarang Shyamsunder Agarwal v. Central Bank of India, (2019) 9 SCC 94]

Specific Relief Act, 1963 — S. 16(c) — Readiness and willingness to perform — Non-establishment of — Financial capacity of vendee whether established: In this case, husband of appellant, was as an employee of a company in occupation of residential suit premises on monthly rent and appellant claimed to have entered into an agreement of purchase of said property for a total sum of Rs 50 lakhs and had paid a sum of Rs 1 lakh to the respondent defendant vendors while respondents denied the claim of appellant to seek specific performance of the agreement. Sole document relied upon by appellant to prove her readiness and willingness was the approval of loan by bank and such approval was subject to two conditions viz. furnishing of income tax documents of appellant and the property documents. It was held that the appellant had not produced any income tax record or bank statement in support of her plea of financial capacity so as to be ready and willing to perform contract and the mere fact that bank had assessed the financial capacity of appellant while granting loan earlier in respect of another property was not sufficient to discharge of proof of financial capacity to hold that appellant was ready and willing to perform her part of the contract. Hence, in this case, order of High Court declining discretionary relief for specific performance, was upheld. [Ritu Saxena v. J.S. Grover, (2019) 9 SCC 132]

Cases ReportedSupreme Court Cases

Arbitration and Conciliation Act, 1996 — S. 11(6-A) [as inserted by 2015 Amendment Act w.e.f 23-10-2015] and S. 11 [as would come into force upon effectuation of S. 3 of 2019 Amendment Act]: Effect of 2015 Amendment Act as fortified, broadened and deepened by 2019 Amendment Act, held, is to legislatively overrule the position of law as prevailing prior to 2015 Amendment Act, that Court in addition to examination of existence of arbitration agreement, could also go into preliminary questions such as stale claims, accord and satisfaction having been reached, etc. Hence, SBP & Co., (2005) 8 SCC 618 and Boghara Polyfab (P) Ltd., (2009) 1 SCC 267 and other rulings of Supreme Court following these judgments on this point, stand legislatively overruled on this point by the 2015 Amendment Act. Thus, the position of law that prevails after the insertion of S. 11(6-A) is that Supreme Court or, as the case may be, the High Court, while considering any application under Sections 11(4) to 11(6) is to confine itself to examination of existence of arbitration agreement, nothing more, nothing less, and leave all other preliminary issues to be decided by arbitrator. Determining “existence of arbitration agreement”, held, has correctly been explained in paras 48 & 59 of Duro Felguera, SA, (2017) 9 SCC 729, to mean that “all that needs to be done, is to see if the agreement contains a clause which provides for arbitration pertaining to the disputes which have arisen between the parties to the agreement”. [Mayavati Trading (P) Ltd. v. Pradyuat Deb Burman, (2019) 8 SCC 714]

Arbitration and Conciliation Act, 1996 — Ss. 11 and 8 — Appointment of arbitrator — Allegations of fraud/fabrication — Effect of, on arbitrability of dispute: Where allegations of fraud are leveled against party seeking appointment are “simple allegations” not falling within the realm of public domain, test for distinguishing a “simple allegation” from a “serious allegation” are, namely: (1) does the plea of fraud permeate the entire contract and above all, the agreement of arbitration, rendering it void, or (2) whether allegations of fraud touch upon the internal affairs of the parties inter se having no implication in the public domain. [Rashid Raza v. Sadaf Akhtar, (2019) 8 SCC 710]

Arbitration and Conciliation Act, 1996 — Ss. 37 and 31(7)(a) — Award of interest by arbitrator as per agreement — Interference by Court when warranted — Public interest and parties leaving matter to discretion of Court: In absence of agreement to contrary between parties, S. 31(7)(a) confers jurisdiction upon Arbitral Tribunal to award interest unless otherwise agreed by parties at such rate as Arbitral Tribunal considers reasonable, on whole or any part of money, for whole or any part of period between date of cause of action and date of award. In this case, parties had agreed to rate of interest at 18% p.a. However, since award is of 1999 and matter related to construction of Paediatrics Centre in a Medical Institute and parties having left matter to discretion of Court, in exercise of power under Art. 142 of the Constitution, interest rate of 18% awarded by Arbitral Tribunal as affirmed by High Court modified and reduced to 10% p.a. simple interest. Award amount along with accrued interest @ 10% p.a. simple interest shall be payable to respondent Company within eight weeks failing which entire award amount will carry interest at 18% as awarded by Tribunal. [Post Graduate Institute of Medical Education & Research v. Kalsi Construction Co., (2019) 8 SCC 726]

Competition Act, 2002 — Ss. 4 and 26(1) — Abuse of dominant position — Predatory pricing: In this case, appellant Uber, was making losses in respect of every trip, it was held that the same does not make any economic sense other than pointing to Uber’s intent to eliminate competition in market. Further, based on the information on record, held, it would be very difficult to say that there is no prima facie case under S. 26(1) as to infringement of S. 4. Further, if in fact, a loss is made for trips made, Expln. (a)(ii) to S. 4 would prima facie be attracted inasmuch as this would certainly affect appellant’s competitors in appellant’s favour or relevant market in its favour. Furthermore, insofar as “abuse” of dominant position is concerned, under S. 4(2)(a), so long as this dominant position, whether directly or indirectly, imposes an unfair price in purchase or sale including predatory price of services, abuse of dominant position also gets attracted. Hence, in this case, the order made by Appellate Tribunal, not interfered with. [Uber (India) Systems (P) Ltd. v. CCI, (2019) 8 SCC 697]

Contract and Specific Relief — Formation Defects Rendering Contracts Voidable — Undue Influence — Clear and specific pleadings setting out details — Cardinal necessity of: General allegations are insufficient even to amount to an averment of fraud, undue influence or coercion however strong may be the language in which such allegations are couched. Furthermore, undue influence and coercion may overlap in part in some cases but they are separate and there must be clear and separate pleading. Onus would shift onto defendant under S. 16 of Contract Act, 1872 r/w S. 111 of Evidence Act, 1872 only after plaintiff establishes a prima facie case. Close relation between parties would not lead to presumption of undue influence, particularly in a case where some only of the siblings are/is providing care to parent(s)/the elderly. [Raja Ram v. Jai Prakash Singh, (2019) 8 SCC 701]

Evidence Act, 1872 — S. 32(1) — Multiple dying declarations which are divergent and cannot be reconciled — Determining which dying declaration is to be believed: When there are multiple dying declarations, and in the earlier dying declaration, accused is not sought to be roped in but in the later dying declaration, a somersault is made by the deceased, the case must be decided on the facts of each case. The court will not be relived of its duty to carefully examine the entirety of materials as also the circumstances surrounding the making of different dying declarations. It is the compatibility with the remaining evidence/circumstantial evidence that will be vital in determining which dying declaration(s) are to be believed, as in present case. If the court finds that the incriminatory dying declaration brings out the truthful position in conjunction with capacity of deceased to make such declaration, and voluntariness with which it was made is established, ruling out tutoring and prompting; and the other evidence support the contents of the incriminatory dying declaration, it can be acted upon. Equally, circumstances which render earlier dying declaration, worthy or unworthy of acceptance, can be considered. However it is equally true that when there are divergent dying declarations it is not the law that the court must invariably prefer the statement which is incriminatory and must reject the statement which does not implicate the accused. The real point is to ascertain which one(s) contain the truth. [Jagbir Singh v. State (NCT of Delhi), (2019) 8 SCC 779]

Evidence Act, 1872 — Ss. 30 and 114 Ill. (b) — Confession recorded in custody (assumed to be admissible in present case under S. 67 of NDPS Act) — Confession of co-accused — Evidentiary value: A confession, recorded when accused is in custody, even when admissible, is a weak piece of evidence and there must be some corroborative evidence. Moreover, evidence of co-accused is also a very weak type of evidence which needs to be corroborated by some other evidence. No such corroborative evidence has been led in this case. Even if confession is admissible, court has to be satisfied that it is a voluntary statement, free from any pressure and also that accused was apprised of his rights before recording the confession. In this case, no such material has been brought on the record, hence, conviction reversed. [Mohd. Fasrin v. State, (2019) 8 SCC 811]

Limitation Act, 1963 — S. 27 and Arts. 65 & 64 — Acquisition of ownership by possession — Effect of elapse of period prescribed for loss of ownership by adverse possession — Nature of rights acquired by adverse possessee thereupon: Remedies available to person who perfects his title to property by adverse possession (Art. 65), and even to person in settled possession who is yet to perfect his title by adverse possession (Art. 64) are: (1) Firstly, held, once 12 years’ period of adverse possession is over, the owner’s right to eject the person in adverse possession (adverse possessee/possessory owner) is lost and the possessory owner acquires the right, title and interest possessed by the outgoing person/owner, as the case may be, against whom he has established the period of prescription. (2) Secondly, held, such adverse possessee/possessory owner can not only seek to protect his title as defendant in a suit but can also file suit for declaration of his title and for permanent injunction restraining defendant from interfering with his possession, where owner whose title stood extinguished, or any other person seeks to dispossess him from property. This would include the case where the property is sold away by the owner after the extinguishment of his title: in which case also a suit can be filed by a person who has perfected his title by adverse possession to question alienation and attempt of dispossession. Rulings of Supreme Court holding that person who had perfected his title by adverse possession could only protect his title as defendant in a suit, but could not file a suit for declaration of his title/protection of his possession, overruled. (3) Thirdly, held, even before ripening of his title by adverse possession, possessory suit under Art. 64 can be maintained by person in settled possession against person seeking to dispossess him by force without recourse to law. Possession confers enforceable right under S. 6 of Specific Relief Act, 1963. [Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729]

T.N. Hindu Religious and Charitable Endowments Act, 1959 (22 of 1959) — Ss. 6(16), 6(19), 63 and 70 — Religious endowments and trusts — Public and Private — Distinction between, summarized: “Specific endowment” means any property or money endowed for performance of any specific service or charity in math or temple or for performance of any other religious charity. Specific endowment includes any money that has been endowed for performance of religious charity. “Religious charity” means public charity associated with Hindu festival or observance of religious character. Public charity need not be connected with temple or math. Expression “associated” means being connected with or in relation to. This expression does not import any control by authorities who manage or administer festival. “Endow” and “endowment” have not been defined in Act. However, they relate to idea of giving, bequeathing or dedicating something, whether property or otherwise, for some purpose. In context of Act, purpose is with respect to religion or charity. While explaining meaning of “divest”, held, to create endowment settlor must give it and if he has given it, he has not retained it. He has then divested himself of property endowed. Settlor divested himself of right to receive certain part of income derived from such properties. There is deprivation of right to deal with properties free of charge as absolute owners which he previously was. In public trust, beneficial interest is vested in uncertain and fluctuating body of persons. It could be either public at large or some considerable portion of it answering particular description. In private trust, beneficiaries are definite and ascertained individuals or who within a definite time can be definitely ascertained. Uncertain and fluctuating body of persons is a section of public following particular religious faith or only a sect of persons of certain religious persuasion would not make any difference in matter. It would not make the trust a private trust. [M.J. Thulasiraman v. Hindu Religious & Charitable Endowment Admn., (2019) 8 SCC 689]

Cases ReportedSupreme Court Cases

Introduction to Book “An Idea of a Law School, Ideas from the Law School”: This article is an introduction to the book “An Idea of a Law School, Ideas from the Law School” given by Prof. (Dr) N.R. Madhava Menon, Hon. Director, Kerala Bar Council M.K. Nambyar Academy for Continuing Legal Education Kochi, Kerala. Introduction to: An Idea of a Law School, Ideas from the Law School by Prof. (Dr) N.R. Madhava Menon [(2019) 8 SCC J-1]

Preface to Book “An Idea of a Law School, Ideas from the Law School”: This article is the preface to the book “An Idea of a Law School, Ideas from the Law School” written by Murali Neelakantan, Principal, Amicus, NLS Batch of 1996. Preface To: An Idea of a Law School, Ideas from the Law School by Murali Neelakantan [(2019) 8 SCC J-4]

Right to Equality: The contention of this article is that equality as understood normally relates to a particular kind of unfair treatment which is called discriminatory and other kinds of grievances which do not have any element of duality or provide scope for comparison have nothing to do with equality. Apart from this section, the article has three other sections. In Section II, the traditional rule of classification is discussed quite briefly. It is pointed out that traditionally the rule believed in minimal judicial scrutiny and this left scope for some injustices remaining unredressed. Section III discusses the new trend of intrusive judicial scrutiny which appears to be the gift of new equal protection or the rule against arbitrariness. In the last and IVth section it is submitted that rule against arbitrariness will be totally unsuitable for being applied to the cases of inequality or discrimination which presuppose duality or adverse treatment by comparison. Right to Equality — Reasonable Classification Rule Versus Rule Against Arbitrariness: A Note by Udai Raj Rai [(2019) 8 SCC J-12]

Tribute to Justice Satya Brata Sinha: This article is a tribute to Justice Satya Brata Sinha. The author of this article served as Justice S.B. Sinha’s law clerk during the 2007-08 Supreme Court year. A Law Clerk’s Tribute To Justice Satya Brata Sinha by Jasdeep Kaur Randhawa [(2019) 8 SCC J-20]

Kerala Private Forests (Vesting and Assignment) Act, 1971 (26 of 1971) — Ss. 3 and 8 — Vesting of land in State — Claim of exemption: Claim of exemption on the basis that the land was under cultivation on appointed date is not permissible where there was no evidence indicating cultivation on appointed date. [P.T. Sreenarayanan Unni v. State of Kerala, (2019) 8 SCC 337]

Criminal Trial — Proof — Falsus in uno, falsus in omnibus — Truth when can be separated from falsehood(s): In this case, neither prosecution version was entirely established, nor the defence version. However, it was held that when both versions were taken together, and the truth was parsed, particularly as defence version included an admission, held, enough facts were established to warrant conviction of accused, though for a lesser offence. [R. Jayapal v. State of T.N., (2019) 8 SCC 342]

Penal Code, 1860 — Ss. 302 and 448 r/w S. 34 — Murder — Eyewitness — Related witness — Illiterate/rustic/rural witness: In this case after appreciation of testimony of eyewitness, minor discrepancies were found immaterial, hence, conviction of main assailants, confirmed. Benefit of doubt given to one of the accessory accused, as his presence was doubtful. [Mallikarjun v. State of Karnataka, (2019) 8 SCC 359]

Penal Code, 1860 — Ss. 302, 376-A and 201 Pt. II — Premeditated rape and murder of five year old girl child — Death sentence: In this case, death sentence of accused for premeditated rape and murder of five year old girl child, commuted to sentence of life imprisonment with a minimum of 25 yrs’ imprisonment (without remission). [Sachin Kumar Singhraha v. State of M.P., (2019) 8 SCC 371]

 Penal Code, 1860 — Ss. 302 and 376 — Rape and murder of girl child by her tutor — Death Sentence: In this case, defence pleaded to modify sentence of the accused on grounds that appellant had no criminal history and was just 22 yrs old at the time of incident, pursuing BSc. It was held that courts below have not considered aspect of possibility of reform or rehabilitation of accused. It is the duty of State to show, that there is no possibility of reform or rehabilitation of accused to seek for capital punishment. At the same time however, appellant took advantage of position of trust. Thus, balancing mitigating and aggravating circumstances of this case, sentence imposed on appellant was modified from death to life imprisonment of an actual period of imprisonment of 30 yrs (without any remission). [Parsuram v. State of M.P., (2019) 8 SCC 382]

Criminal Procedure Code, 1973 — S. 302 — Permission to conduct prosecution — To complainant or victim — Parameters for: Though Magistrate is not bound to grant permission at the mere asking but victim has a right to assist court in a trial before Magistrate. Magistrate may consider as to whether victim is in a position to assist court and as to whether the trial does not involve such complexities which cannot be handled by victim. On satisfaction of such facts, Magistrate would be within its jurisdiction to grant permission to victim to take over inquiry of pendency before Magistrate. [Amir Hamza Shaikh v. State Of Maharashtra, (2019) 8 SCC 387]

Prevention of Corruption Act, 1988 — S. 12 r/w Ss. 13(1)(d) & (2) and 20 and S. 7 — Abetment of or conspiracy for obtaining illegal gratification: Absence of direct evidence for demand and acceptance or conspiracy, held, irrelevant if circumstantial evidence unhesitatingly points towards accessory accused (appellants in present case) as being part of design for obtaining illegal gratification. Further held, once the circumstantial evidence establishes design for obtaining illegal gratification, presumption under S. 20 would arise. [Guruviah v. State, (2019) 8 SCC 396]

Transfer of Property Act, 1882 — S. 58(c) and proviso thereto — Conditional sale mortgage (CSM) or sale with condition for repurchase: Where sale and agreement to repurchase are embodied in separate documents, transaction cannot be mortgage by conditional sale, even if documents are contemporaneously executed but mere fact of use of only one document not indicative of transaction being mortgage and not sale. Where language of document clear, effect must be given to the same but in case of ambiguity, real nature of transaction has to be determined considering recitals in document, relevant factors such as debtor-creditor relationship, valuation of property and transaction value, duration of time for reconveyance and surrounding circumstances. [Dharmaji Shankar Shinde v. Rajaram Shripad Joshi, (2019) 8 SCC 401]

Insolvency and Bankruptcy Code, 2016 — S. 5(8)(f) Expln. [as inserted by Insolvency and Bankruptcy Code (Second Amendment) Act, 2018]: Allottees of real estate projects/homebuyers can be considered, as “financial creditors” and are entitled to be represented in the Committee of Creditors. S. 5(8)(f) Expln. qua such allottees being financial creditors is clarificatory in nature. Money advanced by allottees to real estate developers can also be considered as “financial debt”, as defined under S. 5(8). The validity of S. 5(8)(f) Expln., affirmed. [Pioneer Urban Land And Infrastructure Ltd. v. Union of India, (2019) 8 SCC 416]

Cases ReportedSupreme Court Cases

Criminal Procedure Code, 1973 — Ss. 53, 53-A and 311-A — Voice sample — Power of Magistrate to direct giving of: Until Parliament makes appropriate law, Judicial Magistrate, held, has power to order a person to give his voice sample for purpose of investigation of crime. [Ritesh Sinha v. State of U.P., (2019) 8 SCC 1]

Criminal Procedure Code, 1973 — S. 389 — Suspension of sentence: Three accused persons were convicted under Ss. 302/34 IPC for commission of murder of M.  High Court suspended their respective jail sentences by directing that all three accused be released on bail. High Court did not assign any reason for grant of bail. It was held that for bail during pendency of appeal, recording of reasons is mandatory. The said law was not followed by High Court while passing impugned order. Appellant (complainant) and State filed additional evidence against accused persons for the first time in these appeals to show criminal background of accused persons and list of criminal cases pending against some accused persons for commission of several offences. List showed that some cases were registered against accused persons prior to grant of bail and some cases were registered after grant of bail. High Court did not take note of these facts; hence, impugned order deserved to be set aside. Case remanded to High Court enabling it to reconsider applications for grant of bail/suspension of jail sentence afresh on their respective merits keeping in view the two grounds noted above. [Vinod Singh Negi v. State Of U.P., (2019) 8 SCC 13]

Criminal Procedure Code, 1973 — S. 439 — Bail — Proper exercise of power — Matters to be considered in grant of bail: In this case, Respondents were facing trial under Ss. 147, 148, 149, 302, 120-B, 307, 323, 506 and 427 IPC. They were apprehended for committing murder of one S, son of complainant. Sessions Judge rejected bail applications of respondents. High Court allowed bail applications. The Supreme Court held that High Court committed jurisdictional error in passing impugned order because while passing impugned order, High Court did not assign any reason whatsoever as to on what grounds, even though of a prima facie nature, it considered just and proper to grant bail to respondents. Though it may not be necessary to give categorical finding while granting or rejecting bail, yet it must appear from a perusal of the order that the court has applied its mind to relevant facts. It is unfortunate that neither law laid down by Supreme Court, nor material filed by prosecution was taken note of by High Court. After perusing FIR and keeping in view antecedents of accused persons, and further keeping in view manner in which offence under S. 302 IPC was committed, the Supreme Court held that this is not a fit case for grant of bail. These factors were relevant while considering bail application and, they were not taken into consideration. Sessions Judge was right in rejecting bail applications. Bail applications filed by respondents were dismissed. [Mauji Ram v. State of U.P., (2019) 8 SCC 17]

Insurance — Health Insurance/Medical Insurance — Mediclaim Policy — Repudiation of claim/Reduction of claim amount on ground of pre-existing disease — Validity of: As no pre-existing disease at the time policy was taken out, and there was regular renewal of policy thereafter, held, the same made the plea of pre-existing disease impermissible. Even otherwise, insurance company itself had allowed reduced claim amount after repudiation of claim. Thus, it impliedly made plea of pre-existing disease immaterial for insurance company. Repudiation and later reduction of claim amount being contrary to terms of policy, on facts held, unsustainable and claim amount enhanced as per terms of policy. [Kanwaljit Singh v. National Insurance Co. Ltd., (2019) 8 SCC 22]

Criminal Procedure Code, 1973 — Ss. 173(2), 190(1)(b) & (a), 200 and 202 — Final police report — Procedure to be followed by Magistrate: When Magistrate proceeds to take action by way of cognizance by disagreeing with the conclusions arrived at in the police report, he would be taking cognizance on the basis of the police report [under S. 190(1)(b)], and not on complaint [under S. 190(1)(a)], and, therefore, in such a case the question of examining the complainant or his witnesses under Ss. 200/202 CrPC would not arise. Magistrate can, faced with a final report, independently apply his mind to the facts emerging from investigation and take cognizance under S. 190(1)(b), and in this regard, is not bound to follow the procedure under Ss. 200 and 202 CrPC for taking cognizance under S. 190(1)(b). It is; however, open to the Magistrate to do so. [Vishnu Kumar Tiwari v. State of U.P., (2019) 8 SCC 27]

Penal Code, 1860 — Ss. 302/34 or 304 Pt. I/34 [Ss. 300 Exceptions 2 and 4] — Murder — Unfair investigation — Suppression of relevant materials — Failure to take plea of self-defence — Effect: In this case, accused persons allegedly assaulted deceased leading to homicidal death. Trial court convicted all four accused under Ss. 302/34. The High Court concluded that assault was made on the spur of the moment without premeditation and that both sides having suffered injuries, conviction ought to be altered under S. 304 Pt. I. Two of the accused were acquitted as their presence was found to be doubtful, hence, acquittal of two accused and alteration of conviction to that under S. 304 Pt. I, confirmed. [Anand Ramachandra Chougule v. Sidarai Laxman Chougala, (2019) 8 SCC 50]

Land Acquisition Act, 1894 — S. 23 — Compensation — Computation of — Determination of market value — Comparative sales method — Sale deeds as exemplars: Merely because land in question is agricultural land, price of small piece of land cannot be taken into consideration for determining price of large chunk of land. Namdeo Shankar Govardhane v. State of Maharashtra, (2019) 8 SCC 56]

Specific Relief Act, 1963 — Ss. 16 and 20 — Readiness and willingness of plaintiff to perform his part of the contract:  Merely from delay in filing of suit after accrual of cause of action, held, it cannot be inferred against plaintiff that he was not ready and willing to perform his part, if suit was filed within period of limitation. Relief of specific performance which is governed entirely by principles of equity in England, must be considered in India in light of the statutory framework in which it has been cast. R. Lakshmikantham v. Devaraji, (2019) 8 SCC 62]

Service Law — Recruitment Process — Estoppel — Approbate and reprobate — Impermissibility: Selection process cannot be challenged after participation therein, after its completion upon failure to get selected/appointed. [MCD v. Surender Singh, (2019) 8 SCC 67]

Election — Elections to Particular Bodies/Offices — Local Government/Bodies/Municipalities/Panchayats/Autonomous and Other Bodies — Vacancy/Casual vacancy: In this case there was casual vacancy on seat of Councillor under S. 9 of MMC Act, 1888 due to invalidation of caste certificate of returned candidate. Statutory scheme of MMC Act, 1882, in this regard, explained. Candidate getting second highest votes and claiming his right by filing election petition, held, has a right to be declared as deemed elected under prescribed conditions and Election Commissioner without applying mind in this regard could not have notified bye-elections. Election Commissioner, therefore, was directed to apply mind to statutory conditions and decide entitlement of right of appellants (candidates getting second highest votes) to be declared elected. [Nitin Bandopant Salagre v. State Election Commission, (2019) 8 SCC 77]

Penal Code, 1860 — S. 302 — Murder of wife — Dying declaration: In this case appellant in a drunken position beat his wife and thereafter poured kerosene oil and set her on fire. Dying declaration was recorded by Tahsildar, after obtaining certificate about consciousness of victim. Trial court convicted appellant-accused under S. 302 IPC. High Court dismissed the appeal. The Supreme Court held that the appellant was in a small room along with deceased and their two children. It was certified in medical certificate that the patient was conscious and fit for dying declaration. Non-mentioning that she was physically and mentally fit, does not make the medical certificate defective. Dying declaration pointed to the cause of the death being homicidal and the author of crime being appellant. Case of accidental fall of the lamp was not acceptable. Burn injuries suffered by appellant and the two sons are reconcilable with prosecution version of homicide committed by appellant. Appellant was drunk, he poured kerosene and deceased in a natural response to the injuries would be frantic and her reaction would bring her into close contacts with others in a small room including appellant and their children, hence, appellant stood squarely implicated by the dying declaration. The fact that the kerosene can was not at all sent to FSL cannot cast a reasonable doubt in a case like the present in view of the dying declaration. Unambiguous words came from the mouth of his deceased wife who cannot be expected to lie as she would be conscious, that she would have to meet her maker with a lie in her mouth. [Bhagwan v. State of Maharashtra, (2019) 8 SCC 95]

Arbitration and Conciliation Act, 1996 — S. 36(3) [as amended vide Act 3 of 2016 w.e.f. 23-10-2015] — Arbitral award for payment of money against State Government — Grant of unconditional stay to Government: Considering amended provisions of S. 36 of 1996 Arbitration Act (whereunder now mere challenge to arbitral award would not render the award unenforceable), held, under S. 36(3) of the said Act, grant of stay of operation of the award is to be for reasons to be recorded in writing subject to such conditions as the court may deem fit. Further held, in proceedings under Arbitration Act, the said Act being a self-contained Act, provisions of CPC will apply only insofar as the same are not inconsistent with the spirit and provisions of the Arbitration Act. The provisions of CPC must be followed as guidance, whereas provisions of the Arbitration Act must essentially be applied first. Expression “have due regard to” in S. 36(3) proviso of Arbitration Act used in relation to provisions for grant of stay of a money decree under CPC would only mean that the provisions of CPC are to be taken into consideration, and not that they are mandatory. Mere reference to CPC in S. 36 of Arbitration Act cannot be construed in such a manner that it takes away the power conferred on court in main statute (Arbitration Act) itself i.e. power regarding imposition of conditions while grant of stay against award. Thus, in view of the above, invocation of Or. 27 R. 8-A CPC by High Court for grant of unconditional stay to Government with respect to arbitral award passed against it, held, was not proper. Even if it was assumed that provisions of Or. 27 R. 8-A CPC (exempting Government from furnishing any security) were applicable to instant proceedings, considering amendment made to Or. 41 R. 5 CPC by Act 104 of 1976 w.e.f. 1-2-1977 without there being any consequential amendment to Or. 27 R. 8-A CPC in that regard, further held, the provisions under Or. 27 R. 8-A CPC (which dealt with furnishing of security) did not restrict the court while considering stay application of Government from directing the Government to make deposit of awarded amount or any part thereof. [Pam Developments (P) Ltd. v. State of W.B., (2019) 8 SCC 112]

Penal Code, 1860 — S. 304-B — Dowry death: In this case of unnatural death of deceased due to consumption of pesticide within 7 yrs of marriage, proximate nexus between death of deceased and cruelty/harassment inflicted upon her in respect of dowry demand not was established. Testimonies of PWs 3 and 4 (father and brother of deceased, respectively) were found insufficient to establish that deceased was subjected to cruelty relating to demand of dowry soon before her death, in absence of examination of any independent witnesses though available but not examined. Further, memorandum purportedly executed by in-laws of deceased in presence of Panchayat members could not be relied upon since none of Panchayat members were examined to prove settlement. Besides, letters allegedly written by deceased did not establish factum of dowry demand “soon before her death”. Thus, neither demand for dowry nor fact that such demand was raised soon before her death proved. Hence, not even presumption under S. 113-B of Evidence Act, 1872 could not be invoked, appellant also entitled to benefit of doubt.  [Mahesh Kumar v. State of Haryana, (2019) 8 SCC 128]

Service Law — Departmental Enquiry — Penalty/Punishment: In this case as there was failure to avail repeated opportunities of hearing, it was held that yet another opportunity cannot be granted on the ground of justice. Delaying tactics cannot be rewarded. As financial irregularities running into crores of rupees established against respondent Bank Officer, removal order, restored. [SBI v. Atindra Nath Bhattacharyya, (2019) 8 SCC 134]

Education Law — Employment and Service Matters re Educational Institutions –Regularisation/Confirmation/Absorption — Absorption: On death of regularly appointed candidate, leave vacancy ceased to exist and substantive vacancy arose which was required to be filled in accordance with law. Appellant had no right or entitlement to claim that his appointment on ad hoc basis against leave vacancy should be converted into substantive appointment. [Raman Singh v. District Inspector of Schools, (2019) 8 SCC 138]

Army Rules, 1954 — Rr. 13(3)(III)(iii) or (v) — Discharge from service: Discharge from service on grounds of medical unfitness without convening Invalidating Medical Board, held, illegal since in terms of R. 13(3)(III)(iii) a person found medically unfit for further service can be discharged “only on recommendation of Invalidating Board”. R. 13(3)(III)(v) upon which reliance was placed inapplicable since it is in the nature of residuary provision covering all classes of discharge not specifically provided for. pSulekha Rani v. Union of India, (2019) 8 SCC 143]

Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 — S. 2(f) — “Employee” — Scope of — Offsite workers when covered: Definition of “employee” under S. 2(f) is an inclusive definition which is widely worded to include any person engaged either directly or indirectly in connection with work of an establishment. pSub-Regional Provident Fund Office v. Godavari Garments Ltd., (2019) 8 SCC 149]

Consumer Protection — Maintainability — Delay/Laches/Limitation — Non-raising of objection of lack of pecuniary jurisdiction at the earliest stage — Effect of: Objection regarding pecuniary jurisdiction of consumer forums should be raised at the earliest opportunity. The plea of pecuniary jurisdiction not having been specifically raised before the State Commission at the earliest opportunity; and the State Commission having already decided the matter on merits, such a technical objection could not have been countenanced before the National Commission. [Treaty Construction v. Ruby Tower Coop. Housing Society Ltd., (2019) 8 SCC 157]

Cases ReportedSupreme Court Cases

Constitution of India — Art. 21 — Police atrocities/Custodial death/Armed forces/Fake encounter killings: As large number of fake encounters were alleged against Punjab Police during the period of Punjab Extremism/Terrorist/Separatism, hence, the High Court direction for expeditious commencement of trial and recording of evidence, not interfered with. [Tarsem Lal v. CBI, (2019) 7 SCC 701]

Criminal Law — Criminal Trial — Clues and Tell-Tale Signs/Forensics — Bloodmarks/Trail and Bloodstains: Effect of failure to establish origin of blood as being of human origin and/or its blood group, on prosecution case has to be ascertained in the facts of circumstances of each case, and there is no fixed formula for the same. At times, it may be very difficult for serologist to detect the origin of the blood and/or its group due to disintegration of the serum, or insufficiency of bloodstains, or haematological changes, etc. In such situations, the court, using its judicious mind, may deny the benefit of doubt to accused, depending on the facts and circumstances of each case, if other evidence of prosecution is credible and if reasonable doubt does not arise in the mind of the court about investigation but non-confirmation of blood group or origin of the blood may assume importance in cases where the accused pleads a defence or alleges mala fides on the part of prosecution, or accuses the prosecution of fabricating the evidence to wrongly implicate him in the commission of crime. [Balwan Singh v. State of Chhattisgarh, (2019) 7 SCC 781]

Criminal Procedure Code, 1973 — S. 319 — Summoning of additional accused — Exercise of powers: Standard of proof employed for summoning a person as an accused person under S. 319 CrPC is higher than the standard of proof employed for framing a charge against the accused person. [Shiv Prakash Mishra v. State of U.P., (2019) 7 SCC 806]

Criminal Procedure Code, 1973 — S. 54-A, 53 and 482 Identification of a person by DNA test: Request for such test and direction, therefore, held, have to be based on police authorities’ satisfaction based on material collected after a substantial investigation into the matter. DNA test cannot be requested or directed as a step towards a roving or fishing inquiry on a person or his relatives. It is a serious matter which should not be lightly resorted to without there being appropriate satisfaction of the requirements of directing DNA test. [Kathi David Raju v. State of A.P., (2019) 7 SCC 769]

Karnataka Sales Tax Act, 1957 (25 of 1957) — S. 6-B r/w Ss. 2(1)(u-2) and 2(1)(v) — “Total turnover” as opposed to “taxable turnover” — Relevance of, for determination of slab/rates for levy of turnover tax: The expression “total turnover” has been referred to for purpose of identification/classification of dealers for prescribing various rates/slabs of tax leviable to the dealer and read with first and second provisos to S. 6-B(1), this makes the intention of legislature clear and unambiguous that except deductions provided for under first proviso to S. 6-B(1) nothing else can be deducted from total turnover as defined under S. 2(1)(u-2) for purpose of levy of turnover tax under S. 6-B. Thus, the contention of appellant that “total turnover” in S. 6-B(1) is to be read as “taxable turnover” and determination of rate of turnover tax is to be ascertained on “taxable turnover”, held, unsustainable and rejected. [Achal Industries v. State of Karnataka, (2019) 7 SCC 703]

Penal Code, 1860 — Ss. 302, 149 and 148 — Murder: In this case of mob violence, due to factors like conduct of eyewitness, acquittal of co-accused, previous enmity, delay in FIR and non-examination of material witnesses, false implication cannot be ruled out, hence, appellants also acquitted. [Jagdish v. State of Haryana, (2019) 7 SCC 711]

Penal Code, 1860 — Ss. 302, 376(2)(f) & (g), 377 and 201 — Rape/Sodomy and murder of minor: In this case of aggravated penetrative sexual assault by gang of two and sodomy committed on 10 yr old girl by tying her hands and murder of her 7 yr old brother along with her, first by trying to poison them and then by pushing them into canal when they were conscious, hence, death sentence was affirmed. [Manoharan v. State, (2019) 7 SCC 716]

Penal Code, 1860 — Ss. 364-A, 201 and 302 r/w S. 34: In this case of kidnapping and murder, as chain of circumstances were not fully established against accused, hence it was held that they were entitled to benefit of doubt and appellants were acquitted. [Baiju Kumar Soni v. State of Jharkhand, (2019) 7 SCC 773]

Service Law — Departmental Enquiry — Criminal proceedings — Departmental Enquiry vis-à-vis Criminal proceedings — Relative scope: The object of criminal trial is to inflict appropriate punishment on offender, while purpose of enquiry proceedings is to deal with delinquent departmentally and to impose penalty in accordance with the service rules. Degree of proof necessary to convict offender is different from the degree of proof necessary to record the commission of delinquency. Rule relating to appreciation of evidence in two proceedings is also not similar. Further, in criminal law, burden of proof is on prosecution to prove guilt of the accused beyond reasonable doubt, whereas in departmental enquiry, penalty can be imposed on a finding recorded on the basis of “preponderance of probability”. Moreover, an acquittal by court of competent jurisdiction in a judicial proceeding does not ipso facto absolve delinquent from liability under disciplinary jurisdiction. [Shashi Bhushan Prasad v. CISF, (2019) 7 SCC 797]

Service Law — Departmental Enquiry — Enquiry Report — If valid — Enquiry Committee, if had acted validly: Setting aside of termination order on ground of non-compliance with R. 37(6) of 1981 Rules inasmuch as allegedly there was no evidence to show that three members of Enquiry Committee had met, deliberated before submitting enquiry report, not sustainable. [Shri Yogiraj Shikshan Prasarak Mandal v. Vidya, (2019) 7 SCC 695]

Unlawful Activities (Prevention) Act, 1967 — Ss. 38, 39 and 40 r/w Ss. 120-B and 125 IPC — Essential ingredients: Necessary ingredients for each of the offences like association/offence relating to membership of terrorist organisation (S. 38), supporting/raising funds for terrorist organisation (Ss. 39/40), clarified. Respondent A-2 in this case, held, was rightly convicted by High Court only for offence relating to membership of terrorist organisation (Islamic State/IS/ISIS) and conspiracy, and rightly acquitted of all other offences. However, the sentence of 3 yrs’ RI awarded by trial court for said offence was proper, and there was no ground for reduction of the same on the ground of sympathy in light of overall conduct and attitude of A-2 re the offence relating to membership of terrorist organization. [Union of India v. Yasmeen Mohd. Zahid, (2019) 7 SCC 790]

Cases ReportedSupreme Court Cases

Agricultural Produce, Livestock and Markets — Allotment of shops — Daud Committee norms for allotment of shops in new wholesale market: Due to huge competition for allotment, there was claim for one vacant large shop (gala) but four eligible claimants (viz. two appellants and R-3 and R-4), hence, instead of allotment by lottery method, offers from eligible claimants should be invited in sealed covers. Directions issued accordingly. [Hande Wavare & Co. v. Ramchandra Vitthal Dongre, (2019) 7 SCC 608]

Causation: Causation in criminal law is one area which is worth studying given the complexities that pervade the notion of causation. This article aims to reconsider the notion of causation. Revisiting Causation: “Unscrewing the Inscrutable” by Dr Birendra Pathak [(2019) 7 SCC J-39]

Civil Procedure Code, 1908 — Or. 37 R. 3 — Leave to defend: Principles to be followed while granting leave, unconditional or conditional, summarized. Ultimate objective of summary suit is expeditious disposal of commercial dispute. Where defendant discloses facts of prima facie fair and reasonable defence, unconditional leave may be granted. It relates to subjective satisfaction of court on basis of materials that may be placed before it. However, where court is satisfied that defence is plausible or probable and is not sham or moonshine but still it has some doubt over defence, then conditional leave may be granted to defend. In case of unconditional leave, subjective satisfaction of court is involved whereas in conditional leave element of discretion vests with court. This discretion is not absolute but required to be exercised judiciously tempered with what is just and proper in facts of particular case. While exercising discretion it is required to maintain delicate balance between respective rights and contentions by not passing an order which may ultimately impede speedy resolution of dispute. [Sudin Dilip Talaulikar v. Polycap Wires (P) Ltd., (2019) 7 SCC 577]

Civil Procedure Code, 1908 — S. 100 — Substantial question of law: Framing of substantial question of law, sine qua non for exercise of jurisdiction under S. 100. Whether appellate court can reverse findings recorded by trial court adverting to specific findings of trial court and whether judgment of lower appellate court was perverse and outcome of misreading of evidence, not substantial questions of law. [Gurnam Singh v. Lehna Singh, (2019) 7 SCC 641]

Constitution of India — Art. 136 — Ram Janmabhoomi/Babri Masjid suit — Dispute as to ownership of land on which stood place of worship: In this case, there was resumption of hearing of cases/appeals on failure of mediation in appeals arising out of Suits Nos. 3 and 4, hence, parties directed to indicate pleadings and evidence on which they sought to rely so that Registry can keep such documents ready for perusal of Court. [Mohd. Siddiq v. Suresh Das, (2019) 7 SCC 633]

Constitution of India — Sch. VII List II Entries 6, 8, 51(a) and 66 — State Legislature’s competence to make law or regulate or impose tax/fee/impost/levy: Noti. dt. 6-11-2012 and R. 106(Tha) issued under S. 90, Jharkhand Excise Act, 1915 (2 of 1915), held, valid as it is clear that levy concerned was on IMFL (alcohol fit for human consumption), thus within legislative competence of State under List II. [State of Jharkhand v. Ajanta Bottlers & Blenders (P) Ltd., (2019) 7 SCC 545]

Contract Labour (Regulation and Abolition) Act, 1970 — S. 10(1) r/w Ss. 20(1), 13(1) and 14, Minimum Wages Act, 1948: The CLRA Act, 1970 is not applicable after issuance of prohibition notification under S. 10(1) for determining minimum wages payable to erstwhile contract labourers. Minimum wages in such circumstances could be claimed under Minimum Wages Act, 1948 in independent proceedings. [SAIL v. Jaggu, (2019) 7 SCC 658]

Criminal Law — Criminal Trial — Circumstantial Evidence — Generally: It is well settled that in the cases of circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn, should in the first instance, be fully established, and all the facts so established, should be consistent only with the hypothesis of guilt of the accused. The circumstances should be of a conclusive nature, and should be such, as to exclude every hypothesis, but the one proposed to be proved. In other words, there must be a complete chain of evidence, as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused, and it must be such, as to show that within all human probability, the act must have been done by the accused and none else. [State of Rajasthan v. Mahesh Kumar, (2019) 7 SCC 678]

Determination of existence of arbitration agreement: This article deals with the settled principles laid down for determining the existence of an arbitration agreement as well as the various ways an arbitration agreement can come into existence. Determining an Arbitration Agreement — Different Scenarios And Inconsistent Application by Akkant Kumar Mittal [(2019) 7 SCC J-13]

Evidence Act, 1872 — Ss. 101 and 106 — Burden of proof in criminal case — Lies upon whom: General rule is that burden of proof is on prosecution. However, S. 106 was introduced not to relieve prosecution of their duty, but it is designed to meet situation, in which it would be impossible or difficult for prosecution to establish facts which are especially within knowledge of accused. [Ranjit Kumar Haldar v. State of Sikkim, (2019) 7 SCC 684]

Frustration of contract: This article attempts to review (and perhaps clarify) the legal principles governing frustration of contract under current Indian case law. While doing so, this article does not analyse the relevant case law from a normative perspective. It does, however, advance the proposition that Indian law recognises a distinction between frustration of a contract as a result of “internal forces” and frustration of a contract as a result of “external forces” i.e. the nature of impossibility resulting in frustration of a contract. Principles Governing Frustration of Contract under Indian Law by Gaurav Pachnanda [(2019) 7 SCC J-1]

Karnataka Sales Tax Rules, 1957 — R. 6(4)(m)(i) r/w Expln. III to R. 6(4) and S. 5-B of Karnataka Sales Tax Act, 1957: Condition in R. 6(4)(m)(i) restricting deduction in respect of goods which have already suffered tax, to such goods as are used in the same form in which the goods are purchased, valid. Rejecting contention that condition under R. 6(4)(m)(i) of goods that are purchased be used “in the same form” is beyond the charging section (S. 5-B) of KST Act, held, S. 5-B and R. 6(4)(m)(i) operate in different spheres. S. 5-B is a charging provision for levy of sales tax whereas R. 6(4)(m)(i) is a provision for deduction from tax and under S. 5-B, tax can be levied on transfer of property in the goods whether as goods or in some other form whereas R. 6(4)(m)(i) provides for a deduction in respect of goods which have already suffered tax and which are used in the same form. Thus, said rule is in consonance with the charging provision and does not militate against S. 5-B of KST Act, 1957. [Craft Interiors (P) Ltd. v. CCT, (2019) 7 SCC 535]

M.P. Reorganisation Act, 2000 (Central Act 28 of 2000) — Ss. 78, 79, 80, 85, 86, 3, 5, 2(e), (f), (j) & (k) and Pt. II — Deemed adoption of laws/delegated legislation of erstwhile State in successor States (S. 79): When trade is within the territorial limits of each successor State, no difficulty of regarding it as intra- State trade and said incentive available but when trade is between the successor States, it has to be regarded as inter-State trade and therefore, in view of Art. 286 of the Constitution as it applied prior to its amendment on 16-9-2016, said exemption/incentive would not be available. [State of M.P. v. Lafarge Dealers Assn., (2019) 7 SCC 584]

Penal Code, 1860 — S. 302 or S. 304 [S. 300 Exception 4] — Murder or culpable homicide: In this case of sudden fight as there was unpremeditated attack, conviction was modified to one under S. 304 Pt. II in the facts and circumstances of the case. [Sita Ram v. State (NCT of Delhi), (2019) 7 SCC 531]

Penal Code, 1860 — Ss. 302, 365 and 201 r/w S. 34: In this case of kidnapping for ransom and murder of child by maternal uncles, n the basis of circumstantial evidence of last seen together, recovery of dead body and murder weapon and conduct of accused, conviction confirmed. [Munawwar v. State of U.P., (2019) 7 SCC 653]

Religious Freedom and other Fundamental Rights: This article attempts to defend and discuss the implications of the issue that the religious freedom guaranteed under Article 25(1) is inferior to and subject to other Part III provisions. Individual Religious Freedom Is Subject To Other Fundamental Rights by Shrutanjaya Bhardwaj [(2019) 7 SCC J-29]

Service Law — Reinstatement/Back Wages/Arrears — Back wages — Entitlement to: Back wages cannot be claimed for period of unauthorised absence or absence without justification. However, back wages can be claimed where employee is restrained from engaging in service. [United India Insurance Co. Ltd. v. Siraj Uddin Khan, (2019) 7 SCC 564]

Transfer of Property Act, 1882 — S. 58(c) and proviso thereto and S. 54 — Conditional sale mortgage (CSM) or absolute sale — Determination of — Principles summarized: No transaction shall be deemed to be a conditional sale mortgage (CSM) unless condition in respect thereof is embodied in document which effects or purports to effect sale.  Therefore, any recital relating to mortgage or transaction being in nature of conditional sale should be intrinsic part of the very same sale deed. Furthermore, even in case of single document, real character of transaction is to be ascertained from provisions of deed viewed in light of surrounding circumstances and intention of parties. If sale and agreement to repurchase are embodied in separate documents then such transaction cannot be conditional sale mortgage (CSM) irrespective of whether documents are contemporaneously executed. A sale with mere condition of retransfer is not a mortgage. [Sopan v. Syed Nabi, (2019) 7 SCC 635]

Cases ReportedSupreme Court Cases

Assam Rifles Act, 2006 (47 of 2006) — Ss. 2(e), (h) & (r), 55, 56, 49 and 139 r/w Ss. 3, 4, 7, 25 and 28 of Prevention of Corruption Act, 1988: General Assam Rifles Court (GARC), held, has jurisdiction to try offences under Prevention of Corruption Act, against members of Assam Rifles. S. 4 of PC Act is not irreconcilable with S. 55 of 2006 Act to such extent that they cannot stand together. [Union of India v. Ranjit Kumar Saha, (2019) 7 SCC 505]

Civil Procedure Code, 1908 — Or. 9 — Dismissal for default: Ordinarily litigation is based on adjudication on merits of contentions of parties. Litigation should not be terminated by default, either of plaintiff or defendant. Cause of justice requires that as far as possible, adjudication be done on merits. [Robin Thapa v. Rohit Dora, (2019) 7 SCC 359]

 Constitution of India — Art. 190(3)(b) or Sch. X Para 2 r/w Art. 361-B and Arts. 164, 191, 212 and 208 — Conflict of Constitutional rights — Constitutional balance — Interim order: In this case, as there was one day to go for no-confidence motion, it was held that at this stage, resignation of 15 MLAs concerned of Karnataka Assembly cannot be first accepted or their disqualification under Sch. X be ordered, as it is not desirable to adjudicate said issue. As an interim measure, Speaker directed to use discretion to decide request for resignation of 15 MLAs concerned under Art. 190 r/w R. 202 of Rules of Procedure and Conduct of Business of Karnataka Legislative Assembly. Discretion given to decide said issue within such time-frame as Speaker considered necessary. During said period said 15 members cannot be compelled by Speaker to participate in proceedings of House. Said 15 MLAs concerned can either take part or opt to remain out of proceedings of House. [Pratap Gouda Patil v. State of Karnataka, (2019) 7 SCC 463]

Constitution of India — Art. 226 — Alternative remedy/Exhaustion of remedies: Validity of dismissal of writ petition on ground of existence of arbitration clause, affirmed. [Nirmal Software Services (P) Ltd. v. Dr Babasaheb Ambedkar Marathwada University, (2019) 7 SCC 356]

Constitution of India — Arts. 129 and 32 — Contempt jurisdiction — Scope of interference — CBI investigation — Saradha Chit Fund Scam: In case of contempt jurisdiction with particular reference to non-cooperation of State Police official (Commissioner of Police) with CBI, both parties ad idem that Supreme Court in contempt jurisdiction while examining events of 3-2-2019 cannot go into issues that arise for consideration i.e. in contempt proceedings Court could not determine whether or not police official concerned should be arrested by CBI for custodial interrogation, hence, interim protection granted to State Police official concerned, vacated and certain consequential clarifications issued. [Subrata Chattoraj v. Union of India, (2019) 7 SCC 393]

Constitution of India — Arts. 226 and 12 — Maintainability of writ petition: Writ petition challenging termination order passed by Managing Committee of private school, not maintainable since Managing Committee of private school is not “State” within meaning of Art. 12. [Trigun Chand Thakur v. State of Bihar, (2019) 7 SCC 513]

Constitution of India — Arts. 33 and 19(1)(g) & (6) — Restrictions on member of Armed Forces to leave service at will: In this case appellant Airman in IAF in breach of provisions contained in AFO 14 of 2008 applying for civilian post, participating in written test and appearing for interview without intimation or approval. Thus, held, appellant failed to comply with his obligations both in terms of his engagement as enrolled member of Force and requirements to be fulfilled in terms of AFO 14 of 2008. Further held, submission that appellant had unqualified right under Art. 19(1)(g) of the Constitution to leave service of AF at will, liable to be rejected since member of IAF does not have such unqualified right, which would seriously impinge upon manning levels and operational preparedness of Armed Forces. [Amit Kumar Roy v. Union of India, (2019) 7 SCC 369]

Consumer Protection — Services — Medical practitioners/services — Medical negligence: Courts not to defer too readily to expert opinion and must duly apply their mind to the reasonableness of the treatment/care given to the patient and/or approach adopted in the circumstances of each case, otherwise medical standards would obviously decline. Director of Hospital, when is not the treating doctor or the referring doctor, not personally liable, even when negligence is confirmed against Hospital. Standard of care which is expected of a medical professional is the treatment which is expected of one with a reasonable degree of skill and knowledge and a medical practitioner would be liable only where the conduct falls below the standards of a reasonably competent practitioner in the field. [Arun Kumar Manglik v. Chirayu Health & Medicare (P) Ltd., (2019) 7 SCC 401]

Contract Labour (Regulation and Abolition) Act, 1970 — Ss. 10(1), 7, 12, 23, 24 and 25 — Violation of prohibition notification issued under S. 10(1) — Effect: Principal employer is under no obligation to absorb contract labour on issuance of prohibition notification in absence of any such stipulation in CLRA Act providing for automatic absorption. [SAIL v. Ispat Khadan Janta Mazdoor Union, (2019) 7 SCC 440]

Criminal Procedure Code, 1973 — S. 239 — Discharge — Scope — Matters that may be considered: Entering into questions of evidentiary value of material adduced by prosecution at stage of, not permissible. [State of Karnataka v. M.R. Hiremath, (2019) 7 SCC 515]

Criminal Procedure Code, 1973 — S. 482 — Quashment: In this case as there were mala fides or animus of complainant and allegations were also there of illegal racket in State whereby some unscrupulous lawyers in connivance with court officials were procuring arrest warrants against alleged accused without following procedure prescribed by law and without verifying whether there was any truth in complaint, appellant permitted to file appropriate proceedings for quashment, on these grounds of. [Manohar M. Galani v. State of Gujarat, (2019) 7 SCC 527]

Criminal Procedure Code, 1973 — Ss. 378 and 386 — Appeal against acquittal: Opportunity of hearing/Proper representation a must, even if by appointment of counsel/Amicus Curiae by court. In this case, respondent complainant filed the complaint under S. 138, NI Act and Trial court acquitted appellant-accused. In the appeal preferred by respondent before High Court, there was no representation for appellant-accused. Upon hearing the respondent complainant, High Court set aside the judgment of trial court and convicted appellant-accused under S. 138, NI Act, held to be improper. [Christopher Raj v. K. Vijayakumar, (2019) 7 SCC 398]

Family and Personal Laws — Guardians and Wards — Custody of Child/Minor — Considerations for Appointment of Guardian/Welfare of Child — Paramount consideration is always of welfare of child: Provisions of Guardians and Wards Act, 1890 govern rights of parents or guardians, however they do not bar courts exercising parens patriae jurisdiction from determining rights of child considering its overall development. Purpose and object of Guardians and Wards Act, 1890 is not mere physical custody of minor but due protection of ward’s health, maintenance and education.  Power and duty of court under this Act is welfare of minor. Word “welfare” must be taken in its widest sense. Apart from physical well-being, moral and ethical welfare of child also weigh with court. Though provisions of special statute, such as the Guardians and Wards Act, 1890, governing rights of parents or guardians may be taken into consideration, there is nothing which can stand in way of court exercising its parens patriae jurisdiction. No hard-and-fixed formula can be found out which can be applied in each and every case. Each case has to be examined in its own facts. Every child has right to proper health and education. It is primary duty of parents to ensure that child gets proper education. Courts exercising parens patriae jurisdiction can decide such issues in interest of minor. [Sheoli Hati v. Somnath Das, (2019) 7 SCC 490]

Government Grants, Largesse, Public Property and Public Premises — Illegal/Unauthorised Occupation/Encroachment of Government Land and Eviction/Dispossession therefrom and Demolition — Rent recovery/Mesne profit: In case of non-agreement of tenant with proposal of Estate Officer, remand order for giving opportunity of hearing before Estate Officer, affirmed with condition that tenant should pay reasonable amount of damages for delaying matter before Estate Officer. Monthly instalments of arrears and damages specified to be paid till disposal of matter by Estate Officer. On failure to deposit any of said instalments, Estate Officer directed to pass eviction order and no defence would be available to tenant. On deposit of first instalment of arrears, water supply to be resumed, which allegedly was disconnected. [Bengal Chemicals & Pharmaceuticals Ltd. v. Ajit Nain, (2019) 7 SCC 363]

M.P. Ceiling on Agricultural Holdings Act, 1960 (20 of 1960) — Ss. 46, 7, 11, 41 and 42 — Order passed by competent authority declaring surplus land: Challenge to order passed by competent authority declaring surplus land, by instituting a civil suit, is not maintainable in view of bar of jurisdiction of civil court in such matter under S. 46, M.P. Ceiling on Agricultural Holdings Act, 1960. Order of competent authority is subject to appeal and further revision as provided under the 1960 Act. [State of M.P. v. Dungaji, (2019) 7 SCC 465]

Penal Code, 1860 — S. 498-A and Expln. thereto — Conviction under — Ingredients for: Conviction for an offence under S. 498-A IPC, held, can be for wilful conduct which is likely to drive a woman to commit suicide OR for dowry demand. In this case there was conviction of husband for cruelty under S. 498-A for having extra-marital relationship which allegedly drove wife to commit suicide, when neither dowry demand nor mental nor physical cruelty on the part of husband proved. Appellant husband already stood acquitted under S. 306. It was held by the Supreme Court that in such circumstances conviction under S. 498-A cannot be sustained as it would not attract either limb of definition of “cruelty” under S. 498-A Expln. [Wasim v. State (NCT of Delhi), (2019) 7 SCC 435]

Penal Code, 1860 — Ss. 302 and 392 r/w S. 34 — Robbery and murder: In this case as there was circumstantial evidence of last seen evidence, recovery of stolen articles, non-explanation of incriminating evidence and failure to conduct TIP was held inconsequential, conviction of accused, confirmed. [Ramesh Dasu Chauhan v. State of Maharashtra, (2019) 7 SCC 476]

Penal Code, 1860 — Ss. 302/34 or Ss. 304 Pt. II/34 — Murder or culpable homicide: In this case of sudden fight, there was absence of premeditation. Evidence of injured witness was reliable, believable and inspire implicit confidence as well as was corroborated, hence, concurrent conviction under Ss. 304 Pt. II/34 confirmed. [Pratap Singh v. State of Uttarakhand, (2019) 7 SCC 424]

Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 — S. 28: In this case as there was appropriate authority for conducting inspection as to whether provisions of Act and Rules were being complied with, proceedings were restored. [State of Orissa v. Mamata Sahoo, (2019) 7 SCC 486]

Service Law — Reservation/Concession/Exemption/Relaxation and Affirmative Action — Migration of Category: Reserved category candidate availing benefit of age relaxation in selection process cannot be accommodated in or migrated to general category. [Niravkumar Dilipbhai Makwana v. Gujarat Public Service Commission, (2019) 7 SCC 383]

Cases ReportedSupreme Court Cases

Civil Procedure Code, 1908 — S. 96 and Or. 41 R. 33 — First appeal: Principles summarised regarding mode of disposal of first appeal, especially where first appellate court agree with view taken by trial court. [R.S. Anjayya Gupta v. Thippaiah Setty,(2019) 7 SCC 300]

Constitution of India — Arts. 227 and 226 — Judicial Review — Scope of High Court’s Jurisdiction — Interference in findings of Rent Control Authorities — If warranted: In Vidarbha part of Maharashtra, before enactment of Maharashtra Rent Control Act, 1989, there had to be two rounds of litigation to seek eviction of a tenant. First round had to be before Rent Controller seeking permission to issue a quit notice under S. 108 of TP Act. On such permission being granted, landlord issued notice of termination of tenancy and filed a civil suit seeking eviction of tenant. In this case first round before Rent Controller was gone into. Bona fide need with additional facet of comparative hardship and availability of alternative accommodation had attained finality. After permission was granted by Rent Controller and civil suit was filed in which an objection was taken that as premises were governed by the provisions of Slum Act, requisite permission of Slum Authority was mandatory.  Slum Authority granted that permission in appeal and requirements under S. 22(4) of Slum Act stood satisfied or not was also considered by appellate authority in sufficient detail. Civil suit seeking eviction also attained finality. View that weighed with High Court was not correct as respondent had opportunity at every stage to present his case and before appellate authority as well. No reason was there for High Court to interfere in its jurisdiction under Art. 227 of the Constitution. Judgment and order dt. 19-6-2014 passed by High Court set aside and order dt. 31-10-2002 passed by appellate authority restored. [Kumud v. Pandurang Narayan Gandhewar, (2019) 7 SCC 287]

Contract and Specific Relief — Contractual Obligations and Rights — Price/Escalation Clauses: In this case a Coal Mining and Delivery Agreement (CMDA) was executed between appellant and respondent on 16-7-2008 for supply of coal and the supply was to commence at the earliest within 42 months, or within 48 months from date of allotment of coal blocks i.e. by 25-6-2011. Initial date of commencement i.e. 25-6-2011 came to be extended to 25-3-2013 by mutual agreement due to force majeure as there was a delay of 21 months in obtaining the forest clearance and environmental clearance. Arbitrator interpreted the relevant clauses of the contract and held that the date of commencement of the first operating year would be 25-6-2011 and accordingly the zero year for the purpose of price escalation would be 2011-2012 and therefore appellant shall be entitled to the enhanced amount as is applicable in the year 2013-2014 (the price escalation). It was held by the Supreme Court that in this case, the interpretation by Arbitrator was both possible as well as plausible, therefore, merely because some other view could have been taken, High Court was not justified in interfering with the interpretation made by Arbitrator. Further held, it was pure and simple case of interpretation of the relevant clauses of the agreement which does not involve any public policy. Therefore, quashing and setting aside the award passed by Arbitrator with respect to Claim 1 relating to price adjustment/escalation, held unsustainable and set aside. [Parsa Kente Collieries Ltd. v. Rajasthan Rajya Vidyut  Utpadan Nigam Ltd., (2019) 7 SCC 236]

 Environment Law — Environmental/Ecological Disasters — Endosulfan disaster — Compensation to victims: Affected individuals entitled to compensation as per directions of Court in Democratic Youth Federation of India, 2017 SCC OnLine SC 1901. Persons categorised as “Others” by expert medical panel for free treatment scheme for lifelong health issues and undergoing such treatment, held, are also affected individuals entitled to said compensation of Rs 5 lakhs each as determined by National Human Rights Commission. Accordingly, directions issued for release of said compensation to 4 contempt petitioners. [Remya P. v. K.M. Abraham, (2019) 7 SCC 233]

Environment Law — Water/River/Coastal Pollution — Coastal Zone Management Plan (CZMP) — Coastal Regulation Zones (CRZ) — Critically vulnerable notified CRZ-III areas: As construction activities in this case were found to be in violation of CRZ, and hence demolition/removal directed. [Kerala State Coastal Zone Management Authority v. State of Kerala, (2019) 7 SCC 248]

Family and Personal Laws — Hindu Law — Ancestral property/Joint family property: Property inherited from father (prior to coming into effect of Hindu Succession Act, 1956) becomes joint family property in hands of sons and grandsons, and all male issue, even the unborn upon their taking birth. Any conveyance or compromise regarding inherited property by some coparceners/shareholders would not affect and bind the shares of the coparceners/shareholders not a party to the conveyance/compromise in question. Further held, ancestral/joint family property which had lost this character upon a valid conveyance to stranger(s) would reacquire character of ancestral/joint family property if reconveyed back to the family/coparceners, and would thus revest in all the coparceners, including those who had been born in the meantime. [Doddamuniyappa v. Muniswamy, (2019) 7 SCC 193]

Guardians and Wards Act, 1890 — S. 9: Jurisdiction of Family Court qua petition for custody of minor children is not existent, when children are foreign citizens not ordinarily residing within jurisdiction of Family Court. Application of principle that return of child to foreign jurisdiction cannot be directed unless the same is in the best interest and welfare of the child. [Lahari Sakhamuri v. Sobhan Kodali, (2019) 7 SCC 311]

Infrastructure Laws — Acquisition for Infrastructure Projects: In case of land acquisition for development of railway project and not for purpose of development of urban area or for providing a housing scheme to residents of urban area, private respondents, held, have no right to rehabilitation or allotment of alternative site in absence of any such scheme framed by State Government. [State of T.N. v. Vasanthi Veerasekaran, (2019) 7 SCC 342]

Infrastructure Laws — Energy and Power — Alternative/Non-conventional/Renewable Energy Sources — Renewable energy projects — Determination of generic tariff: In this case there was challenge to HERC (Terms and Conditions for Determination of Tariff from Renewable Energy Sources, Renewable Purchase Obligation and Renewable Energy Certificate) Regulations, 2010 revising tariff. It was held by the Supreme Court that validity of the Regulations can be decided only in judicial review proceedings before the courts and not by way of appeal or review. High Court should have adjudicated all contentions raised by appellant but High Court adjudicated only two out of almost thirty contentions, that too, in a cryptic and cavalier manner. High Court did not analyse grounds of challenge regarding validity of the impugned amended Regulations and competency to frame such a regulation appropriately. Hence, matter was remanded for proper adjudication of all issues without expressing any opinion on merits of matter. [Star Wire (India) Vidyut (P) Ltd. v. Haryana ERC, (2019) 7 SCC 207]

Land Acquisition Act, 1894 — Ss. 18 and 23 — Determination of market value: Every reference proceeding must be decided on evidence produced and issues raised therein. Dispute regarding competency, capability of expert to prepare valuation report and procedure adopted by him in preparing valuation report. Under such condition, mechanical acceptance of valuation report submitted by expert merely on ground that his valuation was accepted by courts in proceedings relating to some other parcel(s) of land, not permissible. [Executive Engineer, Minor Irrigation Works, Jalgaon v. Vitthal Damodar Patil, (2019) 7 SCC 225]

Motor Vehicles Act, 1988 — Ss. 166, 168 and 173 — Permanent disability: Principles summarised regarding determination of compensation on the basis of functional disability. Step-wise inquiry to be made by Tribunal, delineated. As driver of offending vehicle was driving in breach of policy conditions, Insurance company absolved of its liability but principle of “pay and recover” applied. On facts of the case, compensation enhanced. [Parminder Singh v. New India Assurance Co. Ltd., (2019) 7 SCC 217]

Negotiable Instruments Act, 1881 — Ss. 142 and 138 — Cognizance after prescribed period upon showing sufficient cause: Under S. 142(1), complaint has to be instituted within one month of cause of action under S. 138 proviso (c), which however stipulates that cognizance may be taken after prescribed period, if complainant satisfies court about sufficient cause. In this case, both in Paras 7 and 8 of complaint, appellant complainant, held, indicated adequate and sufficient reasons for not being able to institute complaint within stipulated period and CJM, held, rightly condoned delay. High Court had merely adverted to presumption that first notice would be deemed to have been served if it was dispatched in ordinary course. Even if that presumption applies, sufficient cause was shown by appellant for condoning delay in instituting complaint taking basis of complaint as issuance of first legal notice dt. 31-12-2015, hence, quashment of proceedings, held, was erroneous. [Birendra Prasad Sah v. State of Bihar, (2019) 7 SCC 273]

Penal Code, 1860 — Ss. 302/149 or S. 302 simpliciter — Murder: In this case, eyewitness account found to be detailed, cogent and reliable and there was recovery of bloodstained weapon and clothes, hence concurrent conviction of main assailant, appellant herein, alone under S. 302 simpliciter while all other accused were acquitted, confirmed. [Kamlakar v. State of Maharashtra, (2019) 7 SCC 260]

Penal Code, 1860 — Ss. 302/34: In this case, as there was reasonable doubt as to identity of one of the accused, acquittal of such accused on said basis (while the other accused stood convicted), held, proper in this case. [State of Gujarat v. Kalusinh,(2019) 7 SCC 264]

Prevention of Corruption Act, 1988 — Ss. 13(1)(d) and 13(2) r/w Ss. 120-B, 420, 467, 468, 471, 477-A and 201 IPC — Conspiracy by public servant to commit forgery, etc.: In this case of banking fraud, merely because investigation may not have been proper, cannot enure to the benefit of appellants in view of nature of evidence available against them, hence conviction confirmed. [Ram Gopal v. CBI, (2019) 7 SCC 204]

Service Law — Penalty/Punishment — Effect of acquittal in/pendency of criminal proceedings: In this case, order of compulsory retirement passed against respondents for having indulged in corrupt practices causing loss to State Exchequer, even while prosecution for the same was pending, held, justified in present case. [State of J&K v. Farid Ahmad Tak, (2019) 7 SCC 278]

Service Law — Promotion — Departmental examination: In this case, for the post of Sub-Inspector (Civil Police), there was recruitment through limited departmental examination. There was eligibility criteria in terms of U.P. Sub-Inspector and Inspector (Civil Police) Service Rules, 2008 stipulating requirement of obtaining 50% marks in each subject. Contention that requirement of securing 50% marks was to be reckoned paperwise and not subjectwise was rejected in view of express language of Rules which do not permit such interpretation. It was held that in limited departmental examination, regardless of seniority more meritorious candidate is given opportunity to reach higher levels. [Raj Bahadur v. State of U.P., (2019) 7 SCC 291]

Transfer of Property Act, 1882 — Ss. 126, 122 and 123 and S. 118 — Revocation of gift/Interference with donee property by donor after gift, including interference with further transactions as to gifted property: S. 126 Pt. II says “A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded”. In case of frustration/substantial failure of purpose of gift by donees/person(s) having control over donee property, donor may take steps to ensure proper fulfillment of purpose of gift. [Randhir Kaur v. Balwinder Kaur, (2019) 7 SCC 267]

Cases ReportedSupreme Court Cases

Criminal Trial — Sentence — Death sentence — Rarest of rare case — Post-conviction mental illness of accused/death row convict: Mental illness should be of such serious kind that accused rendered unable to understand nature and purpose of sentence. Assessment of mental disability must be conducted by a multi-disciplinary team of qualified professionals. If death sentence is reduced to life imprisonment or imprisonment for remainder of life of accused without remission, court may direct State to consider case of accused under appropriate provisions of Mental Healthcare Act, 2017. [‘X’ v. State of Maharashtra, (2019) 7 SCC 1]

Electricity — Tariff — CERC (Terms and Conditions of Tariff) Regulations, 2001 — Regns. 1.3 and 1.7: In this case there was apportionment of Foreign Exchange Rate Variation (FERV) into debt and equity after FERV has been calculated and added to capital cost. Electricity Appellate Tribunal approved methodology for ascertaining FERV, however, FERV was directed to be apportioned only in respect of debt liability. The Supreme Court held that the question regarding the apportionment of FERV between debt and equity is not a question of law, thus, interference by Supreme Court not warranted. [Power Grid Corpn. of India v. TANGEDCO, (2019) 7 SCC 34]

Education Law — Medical and Dental Colleges — Admission — Postgraduate/Superspeciality courses’ admission: Strict adherence to time schedule for admission, held, is imperative. Extension of time schedule, held, impermissible. [Education Promotion Society For India v. Union of India, (2019) 7 SCC 38]

Education Law — Medical and Dental Colleges: For admission in Postgraduate/Superspeciality courses’, strict adherence to time schedule for admission, held, is imperative. Extension of time schedule, impermissible. [Himank Goyal v. Union of India, (2019) 7 SCC 41]

Constitution of India — Art. 226 — Habeas corpus: Petition for custody of minor child is maintainable where detention by a parent or others is illegal or without any authority of law. Detention of minor by a person who is not entitled to his legal custody amounts to illegal detention for purpose of grant of writ. [Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, (2019) 7 SCC 42]

Arbitration and Conciliation Act, 1996 — S. 7 and Ss. 11(5), 11(6), 11(6-A) 11(9) and 11(12)(a): Arbitration agreement is not binding on a non-signatory who does not assent to arbitration agreement, even when the signatory and the non-signatory parties are constituents of a Group of Companies. [Reckitt Benckiser (India) (P) Ltd. v. Reynders Label Printing (India) (P) Ltd., (2019) 7 SCC 62]

Limitation Act, 1963 — Art. 65 or Art. 58: In a suit for declaration of title and possession based on title i.e. both for relief of declaration and for relief of possession, limitation period applicable would be that under Art. 65 and not Art. 58. [Sopanrao v. Syed Mehmood, (2019) 7 SCC 76]

Criminal Procedure Code, 1973 — S. 239 — Discharge — Exercise of powers under S. 239 CrPC — Scope: While exercising powers under S. 239 CrPC, it is not permissible to look into the merits of disputed facts of the case. [Srilekha Sentilkumar v. CBI, (2019) 7 SCC 82]

Army Act, 1950 — S. 34(c) — Conviction — Judicial Review: when task assigned to a soldier is cut out in definite manner and duties are assigned, scope of judicial review is only limited to finding out whether same has been performed by him on basis of recorded finding of fact. Further held, where cowardice is alleged, reason therefor has to be noted and considered. [Dalbir Singh v. Union of India, (2019) 7 SCC 84]

Bihar Excise Act, 1915 (2 of 1915) — Ss. 53(a), 2(17-A) and 19(4) — [As amended by the Bihar Excise (Amendment) Act, 2016 (3 of 2016)] — Offence under S. 53(a): In this case, appellants were travelling in private vehicle from Jharkhand to Bihar on 25-6-2016. They were intercepted in Bihar and tested positive in breath analyser test for liquor but no liquor was found in vehicle. On charge-sheet filed, cognizance taken by Magistrate on 30-7-2016. Changes in law, clarified and appellants given liberty to approach Magistrate with application for discharge. Matters directed to be considered by Magistrate. [Satvinder Singh v. State of Bihar, (2019) 7 SCC 89]

Debt, Financial and Monetary Laws — Interest — Delayed payments/Withheld amount/Wrongfully detained amount: Demand of interest on an annual basis qua the arrears of rent payable, not permissible when the agreement for lease provided for a fixed percentage to be paid on past dues. [State of Bihar v. TISCO Ltd., (2019) 7 SCC 99]

T.N. Hindu Religious and Charitable Endowments Act, 1959 (22 of 1959) — Ss. 69, 70 and 6(7): Commissioner hearing appeal under S. 69, held, not a court. [Ganesan v. T.N. Hindu Religious & Charitable Endowments Board, (2019) 7 SCC 108]

Sales Tax and VAT — Refund: In case of grant of Refund based on claim of reimbursement of the tax levied by the State Government on declared goods which were subsequently sold in course of inter-State trade, raising of new plea at the appellate stage (by Revenue) that the purchased goods used as raw material and the finished goods sold vide the inter-State sale, were not the same, not permissible. There is no requirement of providing of excess demand notice along with refund application. [State of Jharkhand v. Akash Coke Industries (P) Ltd., (2019) 7 SCC 142]

Criminal Procedure Code, 1973 — S. 227 — Discharge: Judge while considering the question of framing charge under S. 227 CrPC in sessions cases (which is akin to S. 239 CrPC pertaining to warrant cases) has the undoubted power to sift and weigh the evidence for limited purpose of finding out whether or not a prima facie case against accused has been made out. Where the material placed before the court discloses grave suspicion against accused which has not been properly explained, court will be fully justified in framing the charge. If two views are possible and one of them giving rise to suspicion only, as distinguished from grave suspicion against accused, trial Judge will be justified in discharging him. It is expected from trial Judge to exercise his judicial mind to determine as to whether a case for trial has been made out or not. It is true that in such proceedings, court is not supposed to hold a mini trial by marshalling the evidence on record. [Asim Shariff v. NIA, (2019) 7 SCC 148]

Civil Procedure Code, 1908 — Or. 7 R. 11(d), Or. 6 R. 16 and Or. 7 Rr. 11(a) to (f): Rejection of a plaint in part/only against one of the defendants in exercise of power under Or. 7 R. 11(d), not permissible. Such relief can be claimed by invoking other remedies including under Or. 6 R. 16 at the appropriate stage. [Madhav Prasad Aggarwal v. Axis Bank Ltd., (2019) 7 SCC 158]

Education Law — Professional Colleges/Education — Engineering or Technical Colleges or MBA — Affiliation/Recognition/Approval/Permission — MBA College — Increase of seats: When AICTE not responding to application for increase of seats, proper course, held, is to approach Court. [Fore School of Management v. AICTE, (2019) 7 SCC 168]

Education Law — Fees — Fee Structure/Capitation Fee/Fee Regulatory Committee — Determination of fee by Fee Regulatory Committee: Court can neither act as an appellate authority nor can usurp jurisdiction of decision-maker and make the decision itself (in present case with regard to fee structure). Judicial review lies against decision-making process and not merits of decision itself. No doubt in exceptional circumstances it can take over decision-taking power of statutory authority. [Vasavi Engineering College Parents Association v. State Of Telangana, (2019) 7 SCC 172]

Cases ReportedSupreme Court Cases

Advocates — Vakalatnama — Nature of: Vakalatnama is only a document which authorises an advocate to appear on behalf of party. By and large, it has no bearing on merits of case.  [Sasikala Pushpa v. State of T.N., (2019) 6 SCC 477]

Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959 (as amended by Regulation 1 of 1970) — Ss. 2(g) and 3(1)(a) — Validity of transfer: In this case it was held that High Court did not examine case in context of “transfer” as defined in S. 2(g). Moreover, certain documents filed by appellants to prove legal transactions in question as being legal and not hit by S. 3 as amended w.e.f. 1-1-1970, were not considered. Inquiry on aforementioned two grounds was also necessary while deciding legality and validity of sale deeds in question along with all other issues decided by courts below. Setting aside impugned order as also order passed by Single Judge, in interest of justice, matter remanded to High Court (Single Judge writ court) for deciding appellants’ writ petition afresh on merits in accordance with law on all issues arising in case including those mentioned above, on merits strictly in accordance with law uninfluenced by any observations made by Supreme Court. [Bikkina Rama Rao v. Tahsildar (Tribal Welfare), (2019) 6 SCC 474]

Civil Procedure Code, 1908 — Or. 9 R. 13 vis-à-vis S. 96(2) and S. 97 — Ex parte decree — Setting aside of: Relative scope and operation of Or. 9 R. 13 and S. 96(2) and duties of court when deciding cases under these provisions, explained in detail. Delay occasioned in filing of first appeal against ex parte decree under S. 96(2) after dismissal of application under Or. 9 R. 13, due to pursing remedy under Or. 9 R. 13, can be condoned as time spent therein can be considered as sufficient cause for condonation of delay provided there is no dilatory tactic or lack of bona fides on part of appellant. Proposition “remedies provided as simultaneous and cannot be converted into consecutive remedies” cannot be applied in rigid manner. [Bhivchandra Shankar More v. Balu Gangaram More, (2019) 6 SCC 387]

Consumer Protection — Consumer Forums — Maintainability — Delay/ Laches/Limitation: In this case, NCDRC by conditional order dt. 16-11-2018 required appellants to file a rejoinder and evidence within four weeks, failing which complaint was to stand dismissed automatically. On 15-2-2019, NCDRC declined to grant any further time to appellants for delay in filing a rejoinder and evidence and dismissed complaint itself. The Supreme Court held that observation and inference of NCDRC that case might lack merit, for which there was delay, unwarranted. Orders of this nature detract from true purpose for which NCDRC has been established. NCDRC should have borne this in mind instead of rejecting complaint on a technicality. Such dismissals only add to burden of litigation and defeat purpose of ensuring justice in consumer for a. Though Consumer Protection Act, 1986 stipulates a period for disposing of a consumer complaint, it is also a sobering reflection that complaints cannot be disposed of due to non-availability of resources and infrastructure. In this background, it is harsh to penalise a bona fide litigant for marginal delays that may occur in judicial process. Consumer fora should bear this in mind so that ends of justice are not defeated. Since complaint was dismissed on a mere technicality, issued no notice to respondent, impugned order dt. 15-2-2019 set aside and Consumer Complaint No. 1432 of 2016 to file of NCDRC restored. Rejoinder and affidavit of evidence being ready, to be taken on record by NCDRC. [Vibha Bakshi Gokhale v. Gruhashilp Constructions, (2019) 6 SCC 489]

Consumer Protection Act, 1986 — S. 21(b) r/w S. 15 — Maintainability of revision petition before National Commission: Revision petition before National Commission against an order passed by the State Commission in an execution proceeding, not maintainable. The jurisdiction under S. 21(b) can be exercised by the National Commission only in case of a “consumer dispute” filed before the State Commission. Further, execution proceedings are independent proceedings and orders passed for enforcement of the final order in the consumer dispute, cannot be construed to be orders passed in the “consumer dispute”. There is no remedy provided under S. 21 to file a revision petition against an order passed in appeal by the State Commission in execution proceedings. [Karnataka Housing Board v. K.A. Nagamani, (2019) 6 SCC 424]

Contempt by advocates: There is no licence to any member of Bar to indulge in undignified conduct to lower down dignity of court. Such attempts deserve to be nipped at the earliest. [Rakesh Tiwari v. Chief Judicial Magistrate, (2019) 6 SCC 465]

Contempt of Court — Nature and Scope — Contempt by advocates: In this case, there was criminal contempt of court by advocate. He did not apologise, but maligned and scandalised subordinate court. He made bare denial and did not show any remorse for his misconduct. The Court ordered debarment from entering court premises/debarment from making appearances in court, in addition to, or in substitution of, imprisonment and fine. [Rakesh Tiwari v. Chief Judicial Magistrate, (2019) 6 SCC 465]

Contempt of Courts Act, 1971 — S. 2(c) — Criminal Procedure Code, 1973 — S. 319 — Power to proceed against other persons appearing to be guilty of offence: Even in a case where protest-petition stage at instance of complainant urging court to summon other persons as well who were named in FIR but not implicated in charge-sheet has gone, in that case also, held, court not powerless vide S. 319, and even persons named in FIR but not implicated in charge-sheet can be summoned to face trial provided during the trial some evidence surfaces against proposed accused. [Rajesh v. State of Haryana, (2019) 6 SCC 368]

Criminal Procedure Code, 1973 — S. 482 — Exercise of power: While exercising powers under this section, application of mind and recording of reasons are necessary. [Jitender Kumar v. State of Bihar, (2019) 6 SCC 396]

Criminal Procedure Code, 1973 — Ss. 362, 353, 242 and 173(5)(a) — Scope of S. 362 — Order rejecting application under S. 242 if “judgment or final order disposing of a case” under S. 362: As rejection of application under S. 242 not having been ordered on merits, but for failure to furnish a satisfactory explanation for the delay, S. 362 CrPC has no relevance on facts. [State v. M. Subrahmanyam, (2019) 6 SCC 357]

Education Law — Employment and Service Matters re Educational Institutions —Termination/Removal/Dismissal: In this case, termination was in violation of S. 35(2), U.P. State Universities Act, 1973 as no prior approval of Vice-Chancellor mandated under S. 35(2) taken before termination, termination order was held liable to be set aside. [Lal Bahadur Gautam v. State of U.P.,(2019) 6 SCC 441]

Education Law — Haryana School Education (Group C) State Cadre Service Rules, 2012 — Rr. 3, 7, 9(5), 11 Appendix A & B r/w Rr. 3, 6, 9 Appendix B, Haryana State Education School Cadre (Group C) Service Rules, 1998: In this case, C&V teachers were to be treated as TGT to avoid anomalous situation where they, after commencement of 2012 Rules would not be governed by any set of Rules. Thus, expression that such C&V teachers stand converted to TGT was only to facilitate their service condition to be governed by 2012 Rules rather than to upgrade them as members of TGT cadre to be eligible for promotion to post of Headmaster. Feeder and promotional cadre cannot be treated on a par by virtue of said expression. Such interpretation is further reinforced by fact that C&V teacher is a dying cadre and no further recruitment is to be made to these categories. Such C&V teachers, if eligible, can seek direct recruitment but they cannot be treated en masse as members of TGT cadre. Besides, TGTs are engaged to provide elementary education and purpose of Rules is better served by ensuring education to students by trained teachers. Impugned order passed by High Court that C&V teachers became members of TGT cadre after commencement of 2012 Rules unsustainable. [State of Haryana v. Sandeep Singh, (2019) 6 SCC 453]

Family and Personal Laws — Hindu Law — Family Property, Succession and Inheritance — Karta/Manager — Alienation of Property/Legal necessity: In this case, Joint family property was mortgaged and later sold to mortgagee by father to maintain himself at old age and his family and to pay mortgage money, release mortgage and pay other dues. The Supreme Curt held that alienation made by father was for legal necessity and for paying antecedent debts. [Rengan Ambalam v. Sk. Dawood, (2019) 6 SCC 399]

Labour Law — Reinstatement/Back Wages/Arrears — Reinstatement and back wages — Daily wagers: For temporary workers like NMR respondents it is necessary to show that they had worked continuously for 240 days in a year. Further held, in this case, initial burden was upon respondent workmen to adduce evidence to prove said fact and it was only after that burden was discharged, burden shifted upon appellant Board. Single Judge, as well as Division Bench, erred in placing burden upon appellant. However, considering that respondents had attained age of superannuation and there was no question of reinstatement, in peculiar circumstances award of 50% back wages which was already paid to respondents under S. 17-B, ID Act plus Rs 2 lakhs as ordered by Supreme Court directed to be in full quit of all claims including 50% back wages and also quantum of compensation in lieu of reinstatement. It was also noted that said order not to be treated as precedent. [T.N. Water Supply & Drainage Board v. M. Natesan, (2019) 6 SCC 448]

Narcotic Drugs and Psychotropic Substances Act, 1985 — S. 32-B (inserted by Act 9 of 2001) — Factors to be taken into account for imposing higher than minimum punishment: S. 32-B, from cls. (a) to (f), enumerates various factors for imposing punishment higher than minimum term of imprisonment. However, specific words used in S. 32-B, that court may, in addition to such factors as it may deem fit, clearly indicates, that court’s discretion to take such factor as it may deem fit, is not fettered by factors which are enumerated in cls. (a) to (f) of S. 32-B. Quantity of substance with which accused is charged, is a relevant factor, which can be taken into consideration while fixing quantum of punishment. Cls. (a) to (f), S. 32-B, do not enumerate any factor regarding quantity of substance as a factor for determining punishment. In the event, court takes into consideration magnitude of quantity with regard to which accused is convicted, said factor is relevant factor and court cannot be said to have committed an error, when taking into consideration any such factor, higher than the minimum term of punishment is awarded. [Rafiq Qureshi v. Narcotic Control Bureau, (2019) 6 SCC 492]

Registration Act, 1908 — Ss. 17 and 49 — Partition/Family Arrangement/Settlement: Even unregistered document of family settlement would operate as estoppel against parties to such settlement. It can be used as corroborative evidence as explaining arrangement made thereunder and conduct of parties. If partition of joint family properties took place by oral family settlement, unregistered document containing signature of all members, containing list of properties partitioned, can be used as corroborative evidence. [Thulasidhara v. Narayanappa, (2019) 6 SCC 409]

Service Law — Recruitment Process — Eligibility criteria/conditions — Prescription of — Competent authority — Scope of Judicial Review: Essential qualifications for appointment to post are for employer to decide according to needs and nature of work. He may also prescribe additional or desirable qualifications, including any grant of preference. [Maharashtra Public Service Commission v. Sandeep Shriram Warade, (2019) 6 SCC 362]

Service Law — Reservation/Concession/Exemption/Relaxation and Affirmative Action — Migration to Other State/UT: In this case for the Post of Assistant Motor Vehicle Inspector, advertisement was published stipulating that all Indian citizens were eligible for appointment but persons having “domicile” in Dadra and Nagar Haveli were to be given weightage and candidates claiming to be members of Scheduled Tribe were required to furnish attested copy of certificate issued by competent authority. Person belonging to SC/ST notified by President for Union Territory were entitled to be considered as reserved candidate provided he was resident of said Union Territory. Presidential Notification issued for UT of Dadra and Nagar Haveli extended benefit of reservation to STs mentioned therein on basis of residence and not origin. Hence it was held, submission that reservation was not available to migrant ST liable to be rejected. Moreover, contention that requirement of residence was for a period of 10 yrs for a person to claim benefit of reservation also cannot be accepted in absence of any substantiating evidence. Besides, no such averment was made in counter-affidavit, nor said issue was raised before High Court or in SLP, and hence does not merit consideration. Respondent directed to be appointed as Assistant Motor Vehicle Inspector without delay. [State (UT of Dadra & Nagar Haveli) v. Abhinav Dipakbhai Patel, (2019) 6 SCC 434]

Unlawful Activities (Prevention) Act, 1967 — S. 43-D(2)(b) — Default bail — Denial of, and extension of detention: In this case, specific reasons for extension of detention, were given by Public Prosecutor. The order of Special Court granting further judicial detention was affirmed by the Supreme Court. However, taking note of later developments and supporting facts of this case, default bail granted by High Court, not interfered with. [State v. Shakul Hameed, (2019) 6 SCC 350]

Cases ReportedSupreme Court Cases

Criminal Procedure Code, 1973 — S. 311 Summoning of material witness: The age of a case, by itself, cannot be decisive of the matter when a prayer is made for examination of a material witness. [Manju Devi v. State of Rajasthan, (2019) 6 SCC 203]

Criminal Procedure Code, 1973 — Ss. 386, 374 and 401 — Appeal against conviction: Principles restated regarding proper exercise of powers of appellate court therein to enhance sentence. Enhancement of sentence by High Court without giving notice to accused, not proper, hence, judgment of High Court set aside to the extent of enhancement of sentence, though conviction confirmed. [Kumar Ghimirey v. State of Sikkim, (2019) 6 SCC 166]

Family and Personal Laws — Hindu Law — Divorce — Mutual Consent Divorce — Invocation of powers under Art. 142 of Constitution — Amicable settlement: In this case, Appellant and respondent were married on 7-5-1998. A girl child was born out of said wedlock and at the time of hearing, she was aged about 18 yrs. Due to strained relationship, parties were living separately. Appellant husband filed a suit for dissolution of marriage before Family Court. Trial court dismissed divorce petition filed by appellant. Appeal preferred by appellant was also dismissed by District Court. High Court also dismissed second appeal. During pendency of appeal before Supreme Court, parties had amicably settled the matter. Parties had also filed a separate application agreeing for dissolution of marriage by mutual consent invoking the powers under Art. 142 of the Constitution. Parties had also agreed that all the pending cases between the parties shall be withdrawn or they will agree for quashing the respective cases. The Supreme Court held that since the parties had amicably settled the matter, considering the facts and circumstances of the case, in exercise of power under Art. 142 of the Constitution, marriage of appellant and respondent was dissolved in terms of compromise. [Praveen Singh Ramakant Bhadauriya v. Neelam Praveen Singh Bhadauriya, (2019) 6 SCC 259]

Hindu Succession Act, 1956 — S. 6 [as amended by Hindu Succession (Amendment) Act, 2005]: Regarding right of daughter born in Mitakshara Family before commencement of HSA, 1956, to share in family property, in the light of conflict of opinion between two-Judge Bench judgments of Supreme Court i.e. Prakash, (2016) 2 SCC 36 and Danamma, (2018) 3 SCC 343 with regard to interpretation of S. 6 of Hindu Succession Act, 1956 as amended by Hindu Succession (Amendment) Act, 2005, matter to be heard by a Bench of three Judges. [Vineeta Sharma v. Rakesh Sharma, (2019) 6 SCC 162]

Insurance — Exemption/Exclusion/Restriction/Limitation/Forfeiture Clauses/Negative Covenants — Non disclosure of exclusions: When conditions of exclusion under policy document not handed over to insured by insurer and in absence of insured being made aware of terms of exclusion, held, it is not open to insurer to rely upon exclusionary clauses. In this case, District Forum and SCDRC both came to a specific finding of fact that insurer did not furnish terms and conditions of exclusion and special conditions to appellant and hence, they were not binding. [Bharat Watch Co. v. National Insurance Co. Ltd., (2019) 6 SCC 212]

Insurance — Repudiation/Rescission of Insurance Policy: Repudiation by insurer of the claim under a policy of life insurance, within a period of two years from the commencement of the insurance cover, on the ground of non-disclosure a material fact, as in the present case for suppressing/not disclosing a pre-existing life insurance, proper. The expression “material” in the context of an insurance policy can be defined as any contingency or event that may have an impact upon the risk appetite or willingness of the insurer to provide insurance cover. [Reliance Life Insurance Co. Ltd. v. Rekhaben Nareshbhai Rathod, (2019) 6 SCC 175]

Narcotic Drugs and Psychotropic Substances Act, 1985 — S. 8 r/w S. 15(c) or S. 8 r/w S. 26: Conviction under S. 8 r/w S. 15(c) for transportation of poppy straw (commercial quantity) in contravention of licence, confirmed. Furthermore, sentence cannot be reduced below the statutory minimum of 10 yrs mandated in S. 15(c). [Gangaram v. State of M.P., (2019) 6 SCC 244]

Penal Code, 1860 — Ss. 326, 320 cls. Sixthly and Eighthly and Ss. 326-A and 326-B — Grievous hurt — Acid attack — Adequacy of punishment: In this case appellant-accused and injured victim S (PW 1) were neighbours. Appellant and victim had previous enmity due to which, on 26-11-1997 at about 6 p.m., appellant, A-1 along with his wife (A-2) poured acid, causing serious injuries over head, neck, shoulder and other parts of body of victim. Accused persons were charge-sheeted for offence under S. 326 r/w S. 34 IPC. The Supreme Court held that the basic fact that appellant poured acid on the body of victim, stood proved beyond any doubt by evidence on record, including testimony of victim PW 1 as also his mother PW 2. The fact that the victim sustained extensive acid burns on the left side of his body also stood duly proved in his testimony read with testimony of doctor PW 8. Courts below had thoroughly examined the material on record and had returned concurrent findings against appellant. The acid is undoubtedly a corrosive substance within the meaning of S. 326 IPC. The victim remained hospitalised for more than 50 days. It would be wholly unrealistic to postulate that even with such extensive acid burn injuries from head to thigh on the left portion of his body and long-drawn hospitalisation, the victim may not have been in severe bodily pain for a period of more than 20 days. Appellant was rightly been convicted under S. 326, but the punishment awarded to him, being of simple imprisonment for a term of one year and fine of Rs 5000, was rather towards the side of inadequacy. However, having regard to facts and circumstances of the case and more particularly the facts that the offence was committed in year 1997 and appellant-accused is now said to be 63 years of age, sentence not enhanced. [Omanakuttan v. State of Kerala, (2019) 6 SCC 262]

Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 — Ss. 3 to 6, 16-A, 17, 17-A and 20 to 24 and Form F of 1996 Rules: In accordance to the Act, the statutory requirement of record keeping of ultrasonography of pregnant women, is mandatory in nature and every entry is required to be made in terms of Form F of 1996 Rules. Validity of presumption of guilt against person conducting such ultrasonography under S. 4(3) proviso for offences under Ss. 5 and 6 and penalty under Ss. 23(1) and (2), in case of deficiency and inaccuracy in record keeping, upheld. It is not arbitrary or unconstitutional. Maintenance of such record, that is, the requirements of filling name and address of laboratory, name and age of patient, etc., and other details in Form F of 1996 Rules, is mandatory. [Federation of Obstetrics & Gynaecological Societies of India v. Union of India, (2019) 6 SCC 283]

Rent Control and Eviction — Tenancy/Tenant — Statutory tenant: Even after death of landlord having life interest and termination of contractual tenancy, held, under the E.P. Rent Act, tenant remains protected and continues in possession as statuary tenant till his/her eviction under Rent Control Act. [R.S. Grewal v. Chander Parkash Soni, (2019) 6 SCC 216]

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 — S. 3(1)(x) — Ingredients of offence: Abuse without reference to caste or tribe will not bring the matter within umbrage of S. 3(1)(x), though the same may be punishable under S. 294 IPC. [Narad Patel v. State of Chhattisgarh, (2019) 6 SCC 268]

Service Law — Contractual post/Contractual engagment — Termination of service in terms of contract of service — Legality of: In this case, Respondent was contractually appointed for a period of one year or until shortage of drivers was met, whichever was earlier. Contract of service stipulated that his services could be dispensed with without any notice. Hence held, action of appellant in terminating services of respondent without notice cannot be faulted with. [Rajasthan SRTC v. Paramjeet Singh, (2019) 6 SCC 250]

Service Law — Promotion — Norms/Principles/Rules applicable: In this case, Letter dt. 28-4-2008 was issued by appellant State inviting recommendations for appointment by way of promotion to Orissa Administrative Service, Class II (Recruitment) Rules, 1978 cadre against 150 vacancies. Extant rules and regulations occupying field then were OAS Class II Rules, 1978 and Orissa Administrative Service, Class II (Appointment by Promotion and Selection) Regulations, 1978. The names of 559 candidates, including contesting respondents were merely recommended and recruitment process had not proceeded any further. Thus, contesting respondents had not acquired any accrued or vested right of selection or promotion to OAS Class II posts. Meanwhile, in 2009 State had restructured cadre and in place of OAS Class II cadre, Orissa Revenue Service Group ‘B’ cadre had come into existence. Contesting respondents had neither challenged abolition of old posts not creation of new cadre, but rather some of them had participated in proceedings of DPC convened for recruitment to newly created cadre. The Supreme Court held that, respondents cannot claim any lien over abolished OAS Class-II posts which were governed by 1978 Rules and Regulations. Impugned judgment directing appointment of respondents against vacancies in abolished cadre in accordance with repealed Rules was held contrary to law and liable to be set aside. [State of Orissa v. Dhirendra Sundar Das, (2019) 6 SCC 270]

Service Law — Retirement/Superannuation — Age of superannuation — Respondent Drivers of appellant Corporation — Whether fell in Category ‘C’ or ‘D’ — Implications of pay revision: In terms of Service Regulations, 1981 prevailing at relevant time in this case, employees earning less than Rs 200 salary would fall in Group ‘D’ category and retire at 60 yrs of age while employees earning more than Rs 200 were to fall in Group ‘C’ category and retire at 58 yrs of age. Respondent Drivers when appointed earning less than Rs 200. However, their pay scale revised to Rs 335 in the year 1982 w.e.f. date of their initial appointment and they also paid arrears from that date, which was again revised in the year 1985 to Rs 335-8-415-10-495 and above. Further, pursuant to resolution passed by Board of Directors, which was also notified, they were placed in Group ‘C’ category. The Supreme Court held that Labour Court as well as High Court erred in holding respondent Drivers in Group ‘D’ category and consequently their age of superannuation to be 60 yrs. Having taken advantage of revised pay retrospectively and also accepted arrears, not open to respondent Drivers to contend that as per their original pay scale, their salary was less than Rs 200 and they would retire at 60 yrs of age. Appellant Corporation rightly retired/superannuated respective respondent Drivers on attaining 58 yrs of age. [U.P. SRTC v. Maslahuddin, (2019) 6 SCC 196]

Specific Relief Act, 1963 — Ss. 10, 16 and 20 — Decree for specific performance — Readiness and willingness of plaintiff: Whether plaintiff possessed sufficient funds to pay balance consideration is inconsequential where defendant himself failed to perform his part of contract. Whether plaintiff demonstrated his bona fides when called upon by court to deposit balance consideration is needed to be considered. Furthermore, insistence by vendee on measurement of land, and production of all documents (including litigation documents) making out a complete chain of title by vendor, before paying balance consideration do not militate against readiness and willingness of vendee to perform its part of the contract. Plea of hardship to defendant if decree for specific performance is passed long after execution of agreement to sell raised for first time before Supreme Court without taking that plea in written statement, not permissible. [Beemaneni Maha Lakshmi v. Gangumalla Appa Rao, (2019) 6 SCC 233]

Unlawful Activities (Prevention) Act, 1967 — Ss. 43-D(2)(b), 16 and 18: In this case, statutory bail in default was granted to respondent-accused by High Court, after setting aside order of Special Court, holding that remand of respondent by Special Court for a further period of 90 days, was not in compliance with mandate of S. 43-D(2)(b), UAP Act. The Supreme Court held that the conclusions of High Court in impugned judgment were not correct. But, considering later developments and supporting facts, no interference was warranted with bail. Prosecution was given liberty to apply for cancellation of bail, if any exigency arises in future. [Union of India v. Mubarak, (2019) 6 SCC 252]

Law School NewsLive Blogging

Day 1 – Inaugural Ceremony & Preliminary Rounds

The Tenth NLU Antitrust Law Moot Court Competition 2019 has been inaugurated in the honorable presence of Dean Dr. I.P. Massey and the Registrar. The registrations and exchange of memorials between the teams is underway in the auditorium, while the Researchers have begun with the Researcher’s Test!

4.30 PM – Preliminary Round 1 Begins

The judges have been briefed and they are really excited to witness the competition this time. The first Preliminary Rounds are about to begin and we wish all the participants good luck!

6 PM – Preliminary Round 1 ends

The first set of preliminary rounds have ended. The participants are tired after passionately arguing their sides, yet are enthusiastic for the next set. The second set of preliminary rounds will start soon, which will be followed by the reverse prelims.

 

 

8 PM – Preliminary Round 2 ends

The two sets of reverse prelims will begin soon, followed by declaration of the teams advancing to the Octa-finals, to be held tomorrow.

9 PMReverse Prelims begin

The the reverse prelims have begun. This is to ensure each team has an equal chance to argue both sides, and thus maintain a balance in scores. The participants are tired, yet are positive as ever!

11.30 PM Reverse prelims end, results announced

The reverse prelims have been concluded, and due to the brilliant organizers in the tabulation team, we were able to receive the results quickly. Following are the teams qualifying to the Octa-Finals (in no particular order) :

  1. Institute of Law, Nirma University.
  2. Symbiosis Law School, Noida.
  3. National University of Advanced Legal Studies, Kochi.
  4. Gujarat National Law University.
  5. National Law University, Odisha.
  6. ILS Law College, Pune.
  7. Amity Law School, IP.
  8. Rajiv Gandhi National University of Law.
  9. Hidayatullah National Law University.
  10. Symbiosis Law School, Pune.
  11. Government Law College, Mumbai.
  12. School of Law, Christ University.
  13. Faculty of Law, Aligarh Muslim University.
  14. SVKM’S NMIMS KIRIT P Mehta School of Law.
  15. Vivekananda Institute of Professional Studies.
  16. Chanakya National Law University.

Memorials have been exchanged according to the match-ups, and the days events have come to an end. We congratulate the Octa-Finalists!

Day 2 – Octa Finals, Panel Discussion and Quarter Finals

The second day of the Tenth NLU Antitrust Moot Court Competition is successfully underway!

9.30 AM – Octa Finals commence

The judges have been briefed and the Octa Finals have commenced in the respective courtrooms. The participants look fresh and well rested even though they might have been ripping apart their opponent’s memorials all through the night! Wishing them all the best!

Judges scrutinizing the arguments.

1 PM – 4th Antitrust Panel Discussion on Competition Law’s Interface with IBC commences

With the first set of Octa Final rounds over, preparations are in full swing for the reverse Octa Final Rounds. Meanwhile, participants attended the 4th Antitrust Panel Discussion, 2019. The topic for this year’s panel discussion pertains to Interface of Competition Law with the Indian Bankruptcy Code. Our esteemed panelists for this discussion are:

  • Ms. Anubhuti Mishra – An alumnus of King’s College, London and Hidayatullah National Law University, Raipur, she is currently working with the Competition Law team at P&A Law Offices, New Delhi. She has advised on several antitrust enforcement as well as merger review matters.
  • Mr. Shashank Sharma – Graduated from National Law School of India University in 2013. Thereafter, he went on to complete his European Master in Law and Economics in 2017. Since then he has been working with AZB & Partners, where his primary focus is Competition Law, with specific focus on Behavioural & Merger Control.
  • Mr. Toshit Shandilya – Graduated from National Law University, Delhi in 2013, he is currently an associate in the Competition Law team of Talwar Thakore & Associates. He has been involved in various critical enforcement and merger control cases before the CCI, as well as the COMPAT. He has been a law clerk with Justice V.S. Sirpurkar, former chairman, COMPAT where he assisted on a number of important cartel and Abuse of Dominance cases.
Our esteemed Panelists engaging with the participants.

The participants of the panel discussion posed certain interesting questions to our Panelists. The questions ranged from procedural to policy issues, arising from the requirement of taking CCI’s approval for insolvency resolution plans that include combinations. The participants and the Panelists engaged on concepts, such as, the failing firm defence, composite combination transactions, inter-connected transactions, and so on, to name a few. The Panelists also threw some light on their practical experience as Competition Lawyers while dealing with complicated transactions that fall within the regime of the IBC. The interactive session provided the participants an insight into the complex interface between the IBC and Competition Law.

5 PM – Octa’s concluded, results announced

The Octa Finals and the Reverse Octa Finals have been concluded. While the participants argued commendably, our Judges had a tough time reaching consensus. The following are the teams progressing towards the Quater Finals (in no particular order):

  1. National Law University, Odisha.
  2. ILS Law College, Pune.
  3. Symbiosis Law School, Pune.
  4. Institute of Law, Nirma University.
  5. National University of Advanced Legal Studies, Kochi.
  6. SVKM’S NMIMS Kirit P. Mehta School of Law.
  7. Gujarat National Law University, Gandhinagar.
  8. Symbiosis Law School, Noida.

We congratulate the qualifying teams. The exchange of memorials for the Quarter Finals shall be taking place soon at the Registration desk.

A glance into the Quarter Finals.

 

Participant engrossed in the opponent’s arguments.

 

7.30 PM – Quarter Finals concluded, results announced.

The Quarter Finals of the Tenth NLU Antitrust Law Moot Court Competition have come to an end. Here are the teams that have qualified to the Semi Finals.

  1. Symbiosis Law School, Pune.
  2. Gujarat National Law University.
  3. National Law University, Odisha.
  4. National University of Advanced Legal Studies, Kochi.

A hearty congratulations to all the Semi Finalists!

8 PM – Semi Finals Underway

The Semi Finals are currently underway. The teams are engaged in fierce argumentation before an eminent panel of judges in both court rooms. Here, take a glimpse at the rounds.

Judges Vijay Pratap Chouhan (Associate, Platinum Partners), Anand Vikas Mishra (Deputy Director, Competition Commission of India) and Anisha Chand (Principal Associate, Khaitan & Co).

 

Judge Anand Vikas Mishra testing the participant’s understanding of the law.

 

Judges Anand Kumar Singh (Assistant Professor, National Law University Jodhpur, specialising in Competition Law), Rahul Satyan (Senior Partner, Competition and Antitrust team at AZB & Partners) and Toshit Chandilya (Associate, Competition Law team at Talwar Thakore & Associates) in Court Room 2.

 

Participants observing the arguments of their opponent team.

10.15 PM – Semi Finals concluded

After establishing their ‘dominant position’ in this relevant mooting market, the following two teams will battle it out in the Finale of the Tenth NLU Antitrust Law Moot Court Competition 2019:

  1. Symbiosis Law School, Pune.
  2. Gujarat National Law University.

The Memorials will be exchanged between the finalists soon. May the best market player win the battle.

Day 3 – Finals and Valedictory Ceremony

9.30 AM The audience and judges are seated in the auditorium and the Final rounds of the Tenth NLU Antitrust Moot Court Competition will begin shortly.

9.40 AM – The first speaker from the Applicant’s side, begins his speech. He is calm and is responding well to the judges, who waste no opportunity in grilling him on the law and facts. The bench is fairly active, and all the three judges are participating equally.

Dr. K.D.Singh (Joint Director (Law), Competition Commission of India) and Mr. Rahul Singh (Partner, Khaitan & Co.), having a look at the proposition.

 

Mr. Manas Kumar Chaudhuri (Partner, Khaitan & Co.) indulgent in the oral rounds during the Finals.

10.20 AM – Speaker 2 from the Applicant’s side has now taken over. She begins her submission by trying to prove that DOPE is not an enterprise, as per the statutory definition under Sections 2(h) read with Section 3(3) of the Competition Act, 2002. She relies on the lack of an economic function, to prove so. However, the judges seem unconvinced, and asks the counsel to clarify the origin of this requirement. Mr. Rahul Singh (Partner, Khaitan & Co.) questions the counsel on the intricacies involved while relying on Section 3(3) along with Section 2(h). The counsel further cites the Coordination Committee case, to prove her point.

Respondent’s gearing up for their turn.

10.35 AM – The judges inquire about the ratio of the LPG Gas Cylinder case, and its relevance to the current argument. With only 2 mins left on the clock, the counsel moves to her second issue, regarding cartelisation. She seeks an extension of time, which is granted. Towards the end of her submissions, one of the judges pose a question regarding the lack of any arguments on mitigation of penalty. The counsel confidently replies that her party is not in violation of any competition or antitrust rules, and thereby need not argue on penalty. This creates a good impression upon the judges.

10.46 AM – The first speaker from the Respondent side, takes the podium. He appears immensely composed, and requests 30 seconds to arrange his documents on the podium. His speech is structured and brief, and the judges seem to be nodding in appreciation. He begins his first submission, on the maintainability of Jeevan Pharma’s admission. Mr. Rahul Singh and Dr K.D Singh (Joint Director (Law), Competition Commission of India) question the counsel on the distinction between the ability of the bench to hear the petition, and their power to grant compensation. The Counsel calmly tries to clarify his position, with reliance on the facts and clarifications, citing the relevant paragraphs, perfectly.

The Appellants discussing their strategy during the Finals.

11.00 AM – The counsel then moves to his second submission, regarding Jeevan Pharma’s abuse of its dominant position, and lays down the three tests required to show the same. The judges don’t seem satisfied with increased reliance on foreign cases, in light of extensive Indian jurisprudence in the area, but the counsel responds adequately. He then seeks an extension, which is happily granted by the judges. As the counsel ends his submissions and thanks the bench, the panel of judges apologise for their repeated probe into every submission of his. This lightens the atmosphere. The judges appeared quite pleased with his set of submissions.

11.24 AM – Speaker 2 now arrives at the podium, to continue her fellow counsel’s submissions. She begins her submission by laying out a roadmap, upon the judges seeking a clarification. Her issues pertain to the ability of the DG and CCR to proceed against DOPE, and DOPE’s violation of Section 3(3). The rain of questions continue, as was the case for the previous speakers. The judges question the line of argument, that the cryptic order of DG can be used against anyone. The counsel tries to clarify her position and does not lose hope.

11.35 AM – The counsel moves to her second submission and focuses on the agreement between the manufacturers, as well as between the manufacturers and the DOPE. She informally quotes Lord Denning and then the statutory definition. There is a good level of engagement between the counsel and the judges. After this speech, the judges decide against rebuttals and surrebuttals, However, they give into the finalists’ request. Speaker 1 from the respondent gives a brilliant rebuttal which leaves the audience as well as the judges in awe.

11.40 AM – The rounds have been concluded, and the finalists wait for the results.

12.15 – Valedictory ceremony commenced

Vice Chancellor, Ms. Poonam Pradhan Saxena and the Dean, Dr. I.P. Massey, with other esteemed faculty members and the judges have taken their seats in the auditorium. Senior Member of the Moot Court Committee opened the ceremony with a heart warming speech and addressed the participants waiting eagerly for the results.

12.30 – Vice Chancellor felicitates the gathering
The Vice Chancellor thanked Khaitan & Co. for their valuable partnership in organising this year’s Competition. She further stressed upon the importance of Competition Law as an emerging field. She also encouraged the participants to take part in more moot court competitions, as it helps to further one’s advocacy skills and analytical abilities.

12.35 – Dr. K.D. Singh addressed the crowd and informed the audience about CCI’s endeavours and how CCI has been happy to host the moot in association with NLU Jodhpur, for the past 10 years, and expressed his desire to continue the same for the coming years.

12.37 – Vice Chancellor presents the token of appreciation to Dr. K.D. Singh

12.38 – Mr. Manas Kumar Chaudhuri (Partner, Khaitan & Co) thanked Ms. Poonam Saxena and shared his experience as a corporate lawyer and left a very interesting question for the participants sitting in the audience, whether they are administering “justice” by being the extended arm

12.40 – Declaration of results

Mr. Rohan C. Thomas, Faculty Advisor of the Moot Court Committee, announces the results :

Second Best Student Advocate Anshika Jain (Gujarat National Law University)

Best Student Advocate – Juhi Hirani (Institute of Law, Nirma University) and Darshan H. Patankar (Gujarat National Law University)

Best Researcher – Eesha H. Sheth (SVKM’S NMIMS Kirit P Mehta School of Law)

Best Memorial – Faculty of Law, Jamia Millia Islamia.

Best Student Advocate for the Finals – Darshan H. Patankar (GNLU)

RUNNERS UP TEAM – Symbiosis Law School, Pune.

WINNING TEAM – Gujarat National Law University.

Winning Team of the Tenth NLU Antitrust Law Moot Court Competition – Gujarat National Law University

 

Runners Up Team of Tenth NLU Antitrust Law Moot Court Competition – Symbiosis Law School, Pune

12.45 – Closing Speech by the Co-Convener of the Moot Court Committee
Ms. Mansi Srivastava (Co-Convener, Moot Court Committee) shared her experience of being part of the organising committee for the past five years and how it feels surreal to be a part of it for one last time. She thanked the administration, the support staff, the volunteers and all the other Moot Court Committee Members for their support and contribution. She specially thanked Ms. Abhilasha Gupta and Ms. Subarna Saha (Advisors, Moot Court Committee) and Mr. Rahul Mantri (Co-Convener, Moot Court Committee) for being her pillars of strength throughout the competition and providing all the answers when she herself couldn’t find them. Lastly, she thanked Khaitan & Co. for their partnership and the Knowledge partner, SCC Online and Eastern Book Company (EBC) for providing the students with access to SCC Online that helped them in the preparation for their rounds.

 

12.48 – Certificate of participation given out to the participants.

The Tenth NLU Antitrust Law Moot Court Competition has thus been concluded.

Cases ReportedSupreme Court Cases

Constitution of India — Arts. 16(4), 341, 342, 14, 15(1) and 15(4) — State/UT benefits or concessions allowed to SCs/STs in matter of employment or education in a particular State/UT: Person belonging to SC/ST in one State cannot be deemed to be SC/ST person in State of his migration for purpose of employment or education. Expressions “in relation to State or Union Territory” and “for the purpose of this Constitution” used in Arts. 341 and 342 mean that benefits of reservation stand confined to geographical territories of State/UT in respect of which lists of SCs/STs have been notified by Presidential Orders under Arts. 341 and 342. Further held, any expansion/deletion of list of SCs/STs notified by President by any authority except Parliament would be against constitutional mandate. Furthermore, unquestionable principle of interpretation is that interrelated statutory as well as constitutional provisions must be harmoniously construed to avoid making any provisions nugatory or redundant. Enabling provision under Art. 16(4) is available only to provide reservation to classes or categories of SCs/STs enumerated in Presidential Orders for a particular State/UT within its geographical area and cannot be extended beyond those categories within that State/UT. [Bir Singh v. Delhi Jal Board, (2018) 10 SCC 312]

Cases ReportedSupreme Court Cases

Penal Code,1860 — S. 377 — Constitutional validity: Section 377, insofar as it criminalizes/penalizes any consensual sexual conduct/relationship between two adults, be it homosexuals (man and a man), heterosexuals (man and a woman) or lesbians (woman and a woman), cannot be regarded as constitutional. However, if anyone, i.e. both a man and a woman, engages in any kind of sexual activity with an animal, the said aspect of Section 377 is constitutional and it shall remain a penal offence under the said section. Any act of the description covered under Section 377 IPC done between two individuals without the consent of any one of them would invite penal liability under the said section, Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1, is overruled. [Navtej Singh Johar v. Union of India, (2018) 10 SCC 1]

Cases ReportedSupreme Court Cases

Arbitration and Conciliation Act, 1996 — Ss. 7 and 11(5) — Arbitration agreement/clause — Existence of: Agreement between the parties giving an option to the parties to choose dispute resolution by “arbitration” or “court”, can be considered as a valid arbitration agreement. [Zhejiang Bonly Elevator Guide Rail Manufacture Co. Ltd. v. Jade Elevator Components, (2018) 9 SCC 774]

Constitution of India — Art. 226 — Appeal against order of Single Judge under Art. 226 (Writ Appeal/Letters Patent Appeal): Once legal and factual issues are raised in intra-court appeal challenging order passed by Single Judge, it is incumbent upon Division Bench to deal with all such issues raised. Then record its finding on such issues keeping in view the submissions urged and applicability of legal provisions. [BDA v. B.N. Ramalingaswamy, (2018) 9 SCC 778]

Constitution of India — Art. 32 — CBI Investigation: Prayer for CBI investigation into degradation of forest due to illegal mining activities declined as requisite steps has been taken by State Government. [T.N. Godavarman Thirumulpad v. Union of India, (2018) 9 SCC 760]

Constitution of India — Art. 32 — Public Interest Litigation — Frivolous or vexatious PIL: In PIL filed seeking guidelines for conducting Caesarean deliveries, it was alleged that there was flagrant violation of health norms and C-sections performed without there being medical necessity. Through this PIL, constitution of Medical Board for supervising such activities was prayed for. Treating this writ petition as abuse of process of court, Supreme Court dismissed it by imposing costs of Rs 25,000. [Reepak Kansal v. Union of India, (2018) 9 SCC 744]

Constitution of India — Arts. 19(1)(a) and 19(2) — Restrictions upon free speech, expression, creativity and imagination of poets and authors: Meesha published in the weekly Mathrubhumi is not derogatory to women nor obscene, thus does not require intervention of the Court. Creative voices cannot be stifled or silenced and intellectual freedom cannot be annihilated and the culture of banning books directly impacts the free flow of ideas and is an affront to the freedom of speech, thought and expression. Further, a creative work has to be read with a matured spirit, catholicity of approach, objective tolerance and a sense of acceptability founded on reality that is differently projected but not with the obsessed idea of perversity that immediately connects one with the passion of didacticism or, for that matter, perception of puritanical attitude. The freedom enjoyed by an author is not absolute, but before imposition of any restriction, the duty of the Court is to see whether there is really something that comes within the ambit and sweep of Art. 19(2) of the Constitution. Also, a book should not be read in a fragmented manner and has to be read as a whole. The language used, the ideas developed, the style adopted, the manner in which the characters are portrayed, the type of imagery taken aid of for depiction, the thematic subsidiary concepts projected and the nature of delineation of situations have to be understood from an objective point of view. Further, there may be subjective perception of a book as regards its worth and evaluation but the said subjectivity cannot be allowed to enter into the legal arena for censorship or ban of a book. The craftsmanship of a writer deserves respect by acceptation of the concept of objective perceptibility. [N. Radhakrishnan v. Union of India, (2018) 9 SCC 725]

Constitution of India — Arts. 226, 32, 21 and 22(2) — Habeas corpus petition — Maintainability: When no challenge has been made to remand order in force, writ petition filed restricting it to relief of habeas corpus with respect to a person who is in police custody pursuant to the said remand order passed by the jurisdictional Magistrate in connection with the offence under investigation is not maintainable in such a case. [State of Maharashtra v. Tasneem Rizwan Siddiquee, (2018) 9 SCC 745]

Education Law — Medical and Dental Colleges — New College/Courses/Upgradation of College/Increase in capacity/seats: Medical Council of India (MCI) conducting surprise inspection in spite of observation of Hearing Committee (of Central Government) that deficiencies detected earlier had been prima facie removed, held, permissible and valid. In case where actual physical verification is required, it is within discretion of MCI to cause such physical verification. MCI can conduct compliance verification in manner in which it decides. It can look for additional deficiencies and if deficiencies detected earlier are not removed or additional deficiencies detected, college is not entitled for renewal of permission. [Medical Council of India v. KMCT Medical College, (2018) 9 SCC 766]

Election — Election Petition/Trial — Maintainability — Limitation/Delay/Laches: The Haryana Panchayati Raj Act, 1994 is a complete code for presentation of election petitions. It mandates that an election petition must be filed within 30 days from the date of declaration of results of election. Under the Act, there is no provision for condoning delay or extending the period of limitation. Hence, extension of that period of limitation by virtue of provisions under Limitation Act, 1963 (i.e. S. 14, Limitation Act, 1963 herein), not permissible. Legislature having prescribed a specific period for filing an election petition, any petition which fails to comply therewith is liable to be dismissed. [Suman Devi v. Manisha Devi, (2018) 9 SCC 808]

Hindu Marriage Act, 1955 — S. 15 — Interpretation of: Restriction placed on second marriage under S. 15 till dismissal of appeal, held, would not apply to such cases, where the facts establish, that the parties have decided not to pursue appeal. [Anurag Mittal v. Shaily Mishra Mittal, (2018) 9 SCC 691]

Income Tax Act, 1961 — S. 80-IC (as inserted by virtue of the Finance Act, 2003, applicable w.e.f. 1-4-2004): Availing of 100% deduction from sixth year onwards, in lieu of 25% deduction otherwise available, on the premise of having made substantial expansion is not permissible when the assessee had already claimed deduction under S. 80-IC @ 100% for five years. [CIT v. Classic Binding Industries, (2018) 9 SCC 753]

Insurance — Repudiation/Rescission of Insurance Policy — Repudiation of claim on ground of delay — When permissible: It is the duty of insured to inform insurer of loss forthwith so that insurer may make a meaningful investigation into cause of damage and nature of loss. This is of crucial importance in insurance claims. Breach of policy term stipulating such condition, given the crucial importance of such term, held, is a material breach. It is not a technical matter but sine qua non for a valid claim to be pursued by the insured. [Sonell Clocks & Gifts Ltd. v. New India Assurance Co. Ltd., (2018) 9 SCC 784]

Insurance — Repudiation/Rescission of Insurance Policy — Repudiation of claim on ground of delay — When permissible: As per terms of insurance policy insured is duty-bound to inform insurer about the loss immediately after the incident. On account of delayed intimation, insurer was deprived of its legitimate right to get an inquiry conducted into cause and nature of the loss, hence, held, repudiation of claim on ground of delay, was proper. [Oriental Insurance Co. Ltd. v. Parvesh Chander Chadha, (2018) 9 SCC 798]

Motor Vehicles Act, 1988 — Ss. 166 and 147: When death of owner-cum-driver of motor vehicle has been caused due to his own negligence, claim for compensation is not maintainable. [National Insurance Co. Ltd. v. Ashalata Bhowmik, (2018) 9 SCC 801]

Narcotic Drugs and Psychotropic Substances Act, 1985 — Ss. 42, 43 and 20(b)(ii)(C) — Search and seizure: In case of search and seizure in public place, when contraband has been recovered from bag carried by accused, compliance with S. 42 is not mandatory in such circumstances. Rather it is S. 43 which would apply. [Raju v. State of W.B., (2018) 9 SCC 708]

Penal Code, 1860 — Ss. 304 Pt. II/34, 323/34 & 324/34 or 307/34: In this case regarding dispute between neighbours with regard to cattle which had strayed and resulted in assault by accused persons which led to death of one and injuries to others, it was held by the Supreme Court that as occurrence took place on the spur of the moment without premeditation and assault was not made on vital part of body and no common intention was found to kill or knowledge that death was likely to ensue, conviction under Ss. 307/34 set aside, but under Ss. 304 Pt. II/34, 323/324/34, confirmed. [Lakshmi Chand v. State of U.P., (2018) 9 SCC 704]

Practice and Procedure — Appeal — Locus standi/Standing — Appeal at the instance of stranger to proceedings: A stranger to proceedings does not have locus standi to question legality of order passed in those proceedings. [Ashok Singh v. State of U.P., (2018) 9 SCC 723]

Service Law — Promotion — Ad hoc promotion: Ad hoc promotions in excess of eligible quota, not permissible. [Abdul Jawad M.F. v. R. Raj Pradeep, (2018) 9 SCC 781]

Specific Relief Act, 1963 — S. 16(c) — Readiness and willingness on part of plaintiff as condition precedent: Plaintiff must always plead and prove that he was always ready and willing to perform his part of contract — It must be established that he was ready and willing and has had capacity to perform his part of contract from date of contract up to date of filing of suit. If case of failure of plaintiff to establish readiness and willingness on his part, he is disentitled to specific performance of contract. [Jagjit Singh v. Amarjit Singh, (2018) 9 SCC 805]

Cases ReportedSupreme Court Cases

Armed Forces — Pension — Computation: Cl. 4(a) of Navy Instruction No. 2/S/74 defined “basic pay” to denote pay “actually drawn” in scale prescribed for rank and group, which was issued to give effect to recommendations of Third Pay Commission and remained in force till 1-1-1986. It was held that appellants’ case was governed by said Instructions as they retired on 1-1-1983. Submission of respondents that submarine pay was excluded from ambit of basic pay as per Special Navy Instructions Nos. 1/S/86, 1/S/9-W and 1/S/08 liable to be rejected, since these notifications came into force subsequent to date of superannuation of appellants. Thus, submarine pay was includible in “pay” for purposes of computing Service Pension of appellants. [N.N. Godfred v. Union of India, (2018) 9 SCC 666]

Associations, Societies and Clubs — Body discharging public function but not amounting to “State” — BCCI: Draft Constitution prepared by Committee of Administrators of BCCI keeping in view recommendations of Justice Lodha Committee Report, approved. [BCCI v. Cricket Assn. of Bihar, (2018) 9 SCC 624]

Constitution of India — Art. 226 — Writs —Habeas corpus: In a habeas corpus petition the High Court must examine at the threshold whether the minor is in lawful or unlawful custody of another person. The Court must take into account the totality of the facts and circumstances whilst ensuring the best interest of the minor child. Further, the fact that the minor child will have better prospects upon return to his/her native country, may be a relevant aspect in a substantive proceedings for grant of custody of the minor child but will not be decisive to examine the threshold issues in a habeas corpus petition. For the purpose of habeas corpus petition, the Court ought to focus on the obtaining circumstances of the minor child having been removed from the native country and taken to a place to encounter alien environment, language, custom, etc. interfering with his/her overall growth and grooming and whether continuance there will be harmful. [Kanika Goel v. State (NCT of Delhi), (2018) 9 SCC 578]

Constitution of India — Arts. 25 and 26 r/w Art. 145(3) — Freedom to follow faith and manage religious affairs: 1934 Constitution of Malankara Orthodox Syrian Church, cannot be said to be in violation of Arts. 25 and 26. [Mathews Mar Koorilos v. M. Pappy, (2018) 9 SCC 672]

Constitution of India — Arts. 27, 19(1)(g), 19(6) and 14 — Haj Policy of Private Tour Operators, 2018, Annexure-A — Rejection of claim of petitioner for registration of PTO for Haj 2018: In this case petitioner applied for quota as private limited company but turnover relied upon was of proprietorship firm without offering any satisfactory explanation therefor nor submitting any relevant documents including conversion of proprietorship firm into private limited company with transfer of its assets and liabilities as alleged. Hence it was held that there was no infirmity in order dt. 31-5-2018 refusing registration for non-compliance with Clause (iv), Appendix A, Haj Policy, 2018. [Ruby Tour Services (P) Ltd. v. Union of India, (2018) 9 SCC 537]

Crimes Against Women and Children — Sexual Abuse and Rape of Minor Girls in Shelter Homes/Child Homes: Repeated interrogation, questioning, visiting/interviewing of victims regarding incident by officials and journalist is hardly conducive for the welfare and well-being of minor victims of sexual abuse and rape in Shelter Homes/Child Homes. Media must be restrained from publishing images of victims even in morphed or blurred form. Media directed to keep interests of victims in mind while dissemination of news. Process to be followed by investigating agencies dealing with case, set out. Various Authorities/Institutions directed to submit reports, for further directions. [Sampurna Behura v. Union of India, (2018) 9 SCC 555]

Criminal Procedure Code, 1973 — Ss. 320 and 482 — Compounding of offences with permission of Court: In this case related to offences under Ss. 406 and 420 IPC, as complainant was satisfied that his amount was received as per direction of Supreme Court, parties were relegated to trial court for compounding. Trial court directed to pass appropriate orders and coercive orders passed against accused withdrawn. [Raj Sharma v. State of U.P., (2018) 9 SCC 660]

Criminal Trial — Confession — Extra-judicial confession/Hearsay — Evidentiary value of: Extra-judicial confession is a weak piece of evidence. It cannot form basis for conviction, unless supported by other substantive evidence. [State of Karnataka v. P. Ravikumar, (2018) 9 SCC 614]

Family and Personal Laws — Hindu Law — Adoption — Proof of — Principles summarized: Factum of adoption and its validity has to be duly proved. Though formal ceremony of giving and taking is essential ingredient for valid adoption, long duration of time during which a person is treated as adopted cannot be ignored. Such fact by itself may carry a presumption in favour of adoption. [Kamla Rani v. Ram Lalit Rai, (2018) 9 SCC 663]

Government Grants, Largesse, Public Property and Public Premises — Recovery of possession/Re-entry by State upon Termination/Cancellation/Resumption/Lapse: In this case lease was expired a long time ago, and was not renewed, but tenants continued to be in possession. Eviction order was passed in such without opportunity of hearing. Tenant cannot claim indefeasible right to continue in premises. Balancing of this principle with fact that rights of tenants under Art. 19(1)(g) of the Constitution might be affected, open auction of such premises in bidding and allotment to highest bidder, directed. On facts, balancing rights of both parties, occupation of premises by tenant, directed not to be disturbed till bidding process is completed. [Bharmal Medical Store v. State of M.P., (2018) 9 SCC 617]

Hindu Law — Marriage and Divorce — Grounds for Divorce — Irretrievable breakdown of marriage: In this case divorce was granted ex parte by impugned judgment, thus prejudicing rights of appellant wife. It was held that logical consequence would normally be to set aside impugned judgment and remit matter for fresh consideration. However, considering that parties were willing to part company on mutually acceptable terms, appellant husband was directed to pay Rs 30 lakhs towards permanent alimony plus Rs 5 lakhs by way of gesture of goodwill towards her medical expenses finding that parties were living separately for more than a decade and there was absolutely no chance of reconciliation, no issue was born from wedlock, appellant wife ailing for long time and staying with her relatives having no independent income while respondent husband was quite resourceful residing in independent bungalow in posh colony in Pune. [Usha Uday Khiwansara v. Uday Kumar Jethamal Khiwansara, (2018) 9 SCC 569]

Motor Vehicles Act, 1988 — Ss. 149, 147 and 168 — Third-party insurance: When award has been passed against insured owner, it is to be paid by insurer and recovered from owner. Insurer is not required to file a suit. It may initiate a proceeding before executing court concerned as if dispute between insurer and owner was subject-matter of determination before Tribunal and issue is decided against owner and in favour of insurer. [Shamanna v. Oriental Insurance Co. Ltd., (2018) 9 SCC 650]

National Security Act, 1980 — Ss. 3(4) and 8 — Requirement of reporting detention to State Government “forthwith” — “Forthwith” — Connotation of: “Forthwith” does not mean instantaneous, but without undue delay and within reasonable time at the earliest possible. Further held, fact whether detention order was reported to State Government within reasonable time and without undue delay is to be ascertained from facts of each case. Delay between date of detention and date of submitting report to State Government must be due to unavoidable circumstances beyond control of authority and not because of administrative laxity. [Hetchin Haokip v. State of Manipur, (2018) 9 SCC 562]

Payment of Gratuity Act, 1972 — Ss. 4(5) and (6) — Forfeiture of gratuity — When permissible: Forfeiture of gratuity on the ground of misconduct which constitutes an offence involving moral turpitude, is permissible only if the person is convicted by a court of competent jurisdiction for the said offence. [Union Bank of India v. C.G. Ajay Babu, (2018) 9 SCC 529]

Penal Code, 1860 — S. 304 Pt. I — Culpable homicide not amounting to murder — Inference of, from nature of injury inflicted: In this case death of one was due to gunshot injury on thigh, and injuries to one other using other weapons. Conviction of accused for firing said gunshot alone, for culpable homicide not amounting to murder, and acquittal of the rest of the accused, confirmed. [State of M.P. v. Gangabishan, (2018) 9 SCC 574]

Penal Code, 1860 — Ss. 302, 201, 392 and 397 — Murder trial: High Court reversed conviction of all respondent-accused due to inconsistencies and material contradiction present in this case, hence, acquittal confirmed. [State of Karnataka v. A.B. Mahesha, (2018) 9 SCC 612]

Penal Code, 1860 — Ss. 498-A and 306 — Bride committing suicide: In this case harassment due to alleged dowry demand and cruelty meted out to deceased by appellant-accused husband, having illicit relationship with another woman, were established as causes of suicide. It was held that High Court rightly maintained conviction of appellant under Ss. 498-A and 306 IPC, with RI for 2 and 5 years, respectively. Furthermore, held, there were no grounds for reduction of sentence. [Siddaling v. State, (2018) 9 SCC 621]

Cases ReportedSupreme Court Cases

Arbitration and Conciliation Act, 1996 — S. 34(5) and Ss. 34(6), 34(3) and 29-A: Requirement of issuance of prior notice to the other party and filing of an affidavit endorsing compliance with the said requirement under S. 34(5), is directory and not mandatory. Considerations of convenience and justice are uppermost, and if general inconvenience or injustice results, without promoting the real aim and object of the enactment, the provision must be declared to be directory. Subsection (5) is not a condition precedent, but a procedural provision which seeks to reduce the delay in deciding applications under S. 34. Further, to construe such a provision as being mandatory would defeat the advancement of justice as it would provide the consequence of dismissing an application filed without adhering to the requirements of S. 34(5), thereby scuttling the process of justice by burying the element of fairness. However, it shall be the endeavour of every court in which a S. 34 application is filed, to stick to the time-limit of one year from the date of service of notice to the opposite party by the applicant, or by the court, as the case may be. Further, in case the court issues notice after the period mentioned in S. 34(3) has elapsed, every court shall endeavour to dispose of the S. 34 application within a period of one year from the date of filing of the said application similar to what has been provided in S. 14 of Commercial Courts Act, 2015. Also, in cases covered by S. 10 r/w S. 14 of the Commercial Courts Act, 2015, the Commercial Appellate Division shall endeavour to dispose of appeals filed before it within six months, as stipulated and appeals which are not so covered will also be disposed of as expeditiously as possible, preferably within one year from the date on which the appeal is filed. [State of Bihar v. Bihar Rajya Bhumi Vikas Bank Samiti, (2018) 9 SCC 472]

 Civil Procedure Code, 1908 — Or. 39 Rr. 1 & 2 — Interim stay — Grant or refusal: While passing an order on interim stay application, justifiable reason(s) to support grant or rejection of prayer as to stay must be stated in the order keeping in view the facts and law applicable to the controversy involved. [Birwati Chaudhary v. State of Haryana, (2018) 9 SCC 458]

Civil Procedure Code, 1908 — Or. 41 R. 27, Or. 41 R. 23-A & Or. 41 R. 25 and Ss. 96 & 100 — Procedure to be followed by appellate courts after receiving additional evidence: Once additional evidence is permitted at appellate stage, other side must be given opportunity to lead rebuttal evidence to counter additional evidence. Appellate courts have two options (i) to take recourse remanding entire matter under Or. 41 R. 23-A for retrial, or (ii) to make limited remand under Or. 41 R. 25 by retaining main appeal with itself so that parties can lead evidence on particular issues in light of additional evidence and then to decide main appeal on merits. [Corpn. of Madras v. M. Parthasarathy, (2018) 9 SCC 445]

Civil Procedure Code, 1908 — Ss. 96(3), 100, 114 & Or. 23 R. 3-A: Challenge to compromise decree is not permissible except on ground of fraud. Such challenge can be by way of fresh suit, or review petition. [Ved Pal v. Prem Devi, (2018) 9 SCC 496]

Constitution of India — Arts. 21, 25, 19 and 29 and Preamble — Cow vigilantism and incidents of lynching solely based on perception: There is necessity of strengthening police administration. Pluralism and tolerance is essential values constituting building blocks of free and democratic society. It is the duty of State to promote fraternity amongst all citizens so that dignity of every citizen is protected, nourished and promoted, and to prevent crime and untoward incidents. Lynching affront to rule of law and exalted values of Constitution itself while vigilantism for whatever purpose or borne out of whatever cause undermines legal institutions of State. Such extrajudicial attempts under guise of law required to be nipped in bud lest it leads to anarchy and lawlessness corroding nation. It is the primary responsibility of State to foster secular, pluralistic and multicultural social order so as to allow free play to ideas and beliefs and coexistence of mutually contradictory perspectives. Directions covering areas of preventive, remedial and punitive measures, issued. [Tehseen S. Poonawalla v. Union of India, (2018) 9 SCC 501]

Contempt of Court — Civil Contempt — Purging of contempt/Opportunity to comply: Once the order dt. 8-3-2001 passed by Single Judge directing appellant FCI to frame scheme or to find ways to absorb respondent workmen within one year had attained finality it was required to be complied with in pith and substance. [Food Corpn. of India v. W.B. FCI Workmen’s Union, (2018) 9 SCC 469]

Criminal Procedure Code, 1973 — S. 378(3) — Application for grant of leave to appeal under — Parameters which High Court should keep in mind while deciding — Principles reiterated: In this case Trial court acquitted respondent-accused of charge of offences punishable under Ss. 363, 366, 376 and 120-B IPC. Application was filed by State for leave to appeal against such acquittal before High Court and High Court rejected it without assigning any reasons. Such casual approach of High Court, disapproved by the Supreme Court and matter was remanded back to it for decision afresh on merits, keeping in view law laid down by Supreme Court in Sujay Mangesh Poyarekar, (2008) 9 SCC 475. [State of U.P. v. Anil Kumar, (2018) 9 SCC 492]

Criminal Procedure Code, 1973 — S. 482: Quashment of subsequent criminal proceedings based on new set of facts merely because earlier criminal proceedings related to present matter were quashed, not proper. [Om Prakash Singh v. State of Bihar, (2018) 9 SCC 440]

Criminal Trial — Practice and Procedure — Abatement — Abatement of appeal: As there was report by High Court along with copy of death certificate regarding death of sole respondent in appeal, appeal stood abated against deceased and was dismissed as having abated. [State of Karnataka v. Srinivasa, (2018) 9 SCC 463]

Environment Law — Vehicular Pollution: NGT passed an order of plying of only CNG buses/coaches and other vehicles at Delhi Airport. Due to incompatibility of other vehicles to CNG mode, direction issued by NGT restricted to only buses and coaches. [Narangs International Hotels (P) Ltd. v. Society for Protection of CHETNA, (2018) 9 SCC 499]

Income Tax Act, 1961 — S. 10(20) (as amended by the Finance Act, 2002) — Noida Authority: After omission of S. 10(20-A) the only provision under which a body or authority can claim exemption was S. 10(20) and further, local authority having been exhaustively defined in the Explanation to S. 10(20), an entity has to fall under S. 10(20) to claim exemption. Further, the Explanation now containing the exhaustive definition of local authority, the definition of local authority as contained in S. 3(31) of the General Clauses Act, 1897 no more applicable. Also, the Explanatory Note to Finance Act, 2002 clearly indicate that by the Finance Act, 2002 the exemption under S. 10(20) had been restricted to Panchayats and Municipalities as referred to in Arts. 243-P(d) and 243-P(e) of the Constitution, and further by deletion of clause (20-A), the income of the Housing Boards of the States and of Development Authorities became taxable. Noti. dt. 24-12-2001 was issued by the Governor in exercise of the power under the proviso to clause (1) of Art. 243-Q of the Constitution of India specifying the appellant Authority to be an “industrial township” with effect from the date of the notification in the Official Gazette. The proviso did not contemplate constitution of an industrial establishment as a Municipality, rather clarified that an exception where Municipality under clause (1) of Art. 243-Q may not be constituted in an urban area. Further, the object of issuance of notification was to relieve the mandatory requirement of constitution of a Municipality in a State in the circumstances as mentioned in the proviso but exemption from constituting Municipality does not lead to mean that the industrial establishment which is providing municipal services to an industrial township is same as Municipality as defined in Art. 243-P(e).  Thus, held, industrial township as specified under Noti. dt. 24-12-2001 was not akin to Municipality as contemplated under Art. 243-Q. Hence, held, appellant Authority is not covered by the definition of “local authority” as contained in the Explanation to S. 10(20). [NOIDA v. CIT, (2018) 9 SCC 351]

Income Tax Act, 1961 — S. 194-A(3)(iii)(f) — Benefit of exemption given under Noti. No. S.O. 3489 dt. 22-10-1970 — Tax deduction at source on payment of interest by bank to Noida Authority: There is a well-marked distinction between a body which is created by the statute, on the one hand, and a body which after having come into existence is governed in accordance with the provisions of the statute, on the other. For instance, a company incorporated under the Companies Act is not a statutory body because it is not created by the statute but it is a body created in accordance with the provisions of the statute. When the words “by and under an Act” are preceded by the words “established”, the reference is to a corporation established, that it is brought into existence, by an Act or under an Act i.e. the term refers to a statutory corporation as contrasted from a non-statutory corporation incorporated or registered under the Companies Act. The preamble of that Act reads “an Act to provide for the constitution of an Authority for the development of certain areas in the State into industrial and urban township and for matters connected therewith”. Thus, the Act itself provided for constitution of an authority. Further, “the Authority” had been constituted by a Noti. dt. 17-4-1976 issued under S. 3 of the 1976 Act. Further, following the ruling in Satish Prabhakar Padhye, (2010) 4 SCC 378, wherein the State Financial Corporation was stated to be a corporation established under a Central Act, held, the Authority was covered by the Noti. dt. 22-10-1970. [CIT v. Canara Bank, (2018) 9 SCC 322]

Income Tax Act, 1961 — S. 194-I r/w S. 10(20) (as amended by the Finance Act, 2002) — Circular dt. 30-1-1995 — Deduction of income tax at source on payment of lease rent to Noida/Greater Noida Authority: The definition of rent as contained in the Explanation to S. 194-I is a very wide definition and payment to be made as annual rent is rent within the meaning of S. 194-I. Further, Circular dt. 30-1-1995 granting exemption from deduction of income tax at source, was issued on the strength of Ss. 10(20-A) and 10(20) as it existed at the relevant time and the very basis of the circular has been knocked out by the amendments made by the Finance Act, 2002. Thus, the circular could not be relied on by Noida/Greater Noida Authorities to contend that there was no requirement of deduction of tax at source. Therefore, tax is required to be deducted at source on payment of lease rent to Greater Noida Authority, as per S. 194-I. [NOIDA v. CIT, (2018) 9 SCC 342]

Motor Vehicles Act, 1988 — Ss. 166 & 173 and Sch. II — Compensation: Award of lump sum compensation without following multiplier method is not permissible. Compensation has to be just compensation. Mode of award in cases of permanent disability has to be based on functional disability or actual loss of income/income-earning capacity. Due to changed scenario in view of cost of living and current rate of inflation, Second Schedule provided under Motor Vehicles Act became redundant. [Anant v. Pratap, (2018) 9 SCC 450]

Penal Code, 1860 — S. 302 — Accused allegedly strangulated his wife to death: A-1(respondent-accused) was allegedly having illicit relationship with A-2 (since dead) and on account of which, there was altercation between A-1 and his wife, and he allegedly strangulated her to death. However, conviction of A-1 under S. 302, was held to be rightly reversed by High Court. [State of Karnataka v. Srinivasa, (2018) 9 SCC 460]

Penal Code, 1860 — Ss. 302, 147 and 148 r/w S. 149 — Murder trial — Appeal against acquittal: Re-appreciation of evidence was done by High Court as Trial court did not properly appreciate evidence and approach of trial court was found perverse. Testimony of eyewitnesses was also found credible. FIR was lodged promptly. Evidence of eyewitnesses was corroborated by medical evidence. Prosecution case was further corroborated by recovery of weapons from accused. Bloodstains found on weapons recovered from accused, were of blood group of deceased, which was yet another piece of evidence corroborating evidence of eyewitnesses and strengthening prosecution case. Hence, reversal of acquittal by High Court, confirmed. [Motiram Padu Joshi v. State of Maharashtra, (2018) 9 SCC 429]

Public Accountability, Vigilance and Prevention of Corruption — Vigilance Authorities: Validity of appointments to post of Central Vigilance Commissioner (CVC) and Vigilance Commissioner (VC), affirmed. Ground of violation of principle of impeccable integrity and institutional integrity, rejected as aspersions were based on false, vague, non-specific, unsubstantiated and/or baseless allegations/representations/complaints. [Common Cause v. Union of India, (2018) 9 SCC 382]

Service Law — Regularisation — Entitlement to regularization: The issue raised in this case was whether the employees employed to carry out appellant FCI’s business operations at its branch offices are contractual employees or employees of appellant. Findings of Tribunal to effect that (i) Agreement with contract labourers for doing work had ended in 1991 and thereafter it was not renewed; (ii) All 955 workers were paid wages directly by appellant; (iii) Nature of work which these workers were doing was of perennial nature in the set-up of FCI; (iv) All 955 workmen were performing their duties as permanent workmen; and (v) No evidence was adduced by appellant to rebut claim of respondent Union; were affirmed by the Single Judge as well as Division Bench. The Supreme Court held that the findings of fact recorded against appellant by Tribunal were based on sufficient evidence. Besides, said findings being concurrent in nature were binding on Supreme Court while hearing appeals under Art. 136 of the Constitution. Furthermore, very fact that appellant FCI failed to adduce any evidence to prove their case, Tribunal was justified in drawing adverse inference against them. Respondent employees were entitled to regularisation in services of appellant FCI. [Food Corpn. of India v. Employees Union, (2018) 9 SCC 464]

Cases ReportedSupreme Court Cases

Arbitration Act, 1940 — S. 29 — Award of pre-reference, pendente lite and future interest by arbitrator — Permissibility of: Under the 1940 Act, an arbitrator has power to grant pre-reference interest under the Interest Act as well as pendente lite and future interest, however, he is constricted only by the fact that an agreement between the parties may contain an express bar to the award of pre-reference and/or pendente lite interest. Further, the Court has evolved the test of strict construction of such clauses, and unless there is a clear and express bar to the payment of interest that can be awarded by an arbitrator, clauses which do not refer to claims before the arbitrators or disputes between parties and clearly bar payment of interest, cannot stand in the way of an arbitrator awarding pre-reference or pendente lite interest. Further, unless a contractor agrees that no claim for interest will either be entertained or payable by the other party owing to dispute, difference, or misunderstandings between the parties or in respect of delay on the part of the engineer or in any other respect whatsoever, leading the Court to find an express bar against payment of interest, a clause which merely states that no interest will be payable upon amounts payable to the contractor under the contract would not be sufficient to bar an arbitrator from awarding pendente lite interest. Further, the grant of pendente lite interest depends upon the phraseology used in the agreement, clauses conferring power relating to arbitration, the nature of claim and dispute referred to the arbitrator, and on what items the power to award interest has been taken away and for which period. Also, the position under S. 31(7) of the 1996 Act, is wholly different, inasmuch as S. 31(7) of the 1996 Act sanctifies agreements between the parties and states that the moment the agreement says otherwise, no interest becomes payable right from the date of the cause of action until the award is delivered. [Reliance Cellulose Products Ltd. v. ONGC Ltd., (2018) 9 SCC 266]

Citizens, Migrants and Aliens — National Register of Citizens of India (NRC): Complete draft prepared after claims/objections cannot be basis for any action by authorities. Authorities must grant reasonable opportunity to each concerned. Statements made by authorities before media touching upon matters pending before Supreme Court, strongly deprecated. [Assam Public Works v. Union of India, (2018) 9 SCC 229]

Civil Procedure Code, 1908 — Or. 2 and Or. 6 R. 17, Or. 14 R. 5 and Or. 18 R. 17 — Suit to include whole claim: When family property dispute resulted in two different civil suits before two different courts, respective claims of parties are required to be decided in one suit rather than in two different suits. [P.K. Narayanan Raja v. Ambika, (2018) 9 SCC 164]

Civil Procedure Code, 1908 — Ss. 96 and 100 — Appeal — Locus standi to file appeal: Appeal by person who was not a party to the civil suit or in first appeal is not maintainable when the judgment in appeal is not adverse to any party in the suit. [Lakshmi Sreenivasa Coop. Building Society Ltd. v. Puvvada Rama, (2018) 9 SCC 251]

Education Law — Fee Structure/Capitation Fee/Fee Regulatory Committee — Statutory prohibition of fees in excess of that prescribed by Fee Fixation Committee constituted under T.N. Educational Institutions (Prohibition of Collection of Capitation Fee) Act, 1992 — Institutions covered by: T.N. Educational Institutions (Prohibition of Collection of Capitation Fee) Act, 1992 is applicable to medical and engineering courses in Annamalai University deemed to be constituted under Annamalai University Act, 2013. For this it is not necessary to notify a statutory university like present one as an “educational institution” under S. 2(b) of 1992 Act. In relation to imparting of education leading to a degree in Medicine or Engineering, S. 4(2-A) of 1992 Act has been given an overriding effect by incorporating non obstante provision. S. 4(2-A), unlike S. 4(1) of 1992 Act does not require any notification by the Government. [M. Aamira Fathima v. Annamalai University, (2018) 9 SCC 171]

Government Contracts and Tenders Termination/Discharge/Repudiation/ Cancellation/Suspension of Contract — Generally — Proper exercise of power by State: In this case dealership of petroleum products was terminated as factum of breach of conditions of dealership agreement was established. Division Bench of High Court issued mandamus in favour of party who breached standard requirements by overturning Single Judge order. The Supreme Court held that writ court is not appellate court nor can it substitute its decision in administrative matters where there is no case of arbitrariness. Consequently, termination of dealership was upheld. [Indian Oil Corpn. Ltd. v. T. Natarajan, (2018) 9 SCC 235]

Information Technology Act, 2000 — S. 70(1) as existing prior to Amendment Act 10 of 2009 r/w S. 17 r/w Ss. 2(o) and 2(k) of Copyright Act, 1957 — Power to declare “protected system” in respect of “government work” — Permissibility of: The provisions of S. 70(1) of the IT Act have to be read conjointly with Ss. 2(k) and 17 of the Copyright Act, 1957 in order to give due effect to related provisions of the two different enactments made by the legislature. Further, plainly read, the power of declaration of a “protected system” may invade a copyright which may be vested in a private owner, however, such a situation is taken care of by the provisions contained in S. 2(k) of the Copyright Act, 1957 which defines “government work” and S. 17(d) of the Copyright Act, 1957 which vests in the Government, copyright in a government work as defined by S. 2(k). The balance is struck by S. 17 between copyright pertaining to any other person and copyright vested in the Government in a “government work”. Therefore, S. 70 cannot be construed independent of the provisions of the Copyright Act. If S. 70 of the IT Act has to be read in conjunction with Ss. 2(k) and 17 of the Copyright Act, 1957 the rigours that would control the operation of S. 70(1) of the IT Act are clearly manifested. [B.N. Firos v. State of Kerala, (2018) 9 SCC 220]

Land Acquisition Act, 1894 — S. 23 — Market Value — Compensation — Determination of — Particular class of land — Wet lands vis-à-vis dry and chira lands: Award of Rs 2000 per cent for wet land appears is just, proper and reasonable keeping in view nature of land, its surroundings and location and similarity with land owned by other landowners to whom compensation was awarded at Rs 2000 per cent. [K.S. Rajan v. State of Kerala, (2018) 9 SCC 167]

Penal Code, 1860 — Ss. 326, 331, 343 and 346: In this case of illegal detention and custodial torture of one B, by appellant-accused (police officials), High Court reversed their acquittal, convicting them under Ss. 326, 331, 343 and 346 IPC and imposing 2 yrs’, imprisonment upon them. Occurrence was of year 1992 and appellants, after acquittal by trial court, also attained age of superannuation. One was 80 yrs old and the other was more than 70 yrs. Appellants have already undergone about 15 months’ imprisonment and victim was also given government job and is presently working. Hence, considering facts and circumstance of case, imprisonment of appellants was reduced by the Supreme Court to period already undergone. However, reduction of sentence was in peculiar facts and circumstances of instant case and the same may not be treated as precedent. [Bhagwan Dass v. State of Haryana, (2018) 9 SCC 227]

Penal Code, 1860 — Ss. 363, 366 and 376 — Abduction and rape — Age of prosecutrix — Relevance: In this case, appellant-accused was convicted by High Court under Ss. 363, 366 and 376. Evidence of PW 6 (prosecutrix) regarding incident was contradicted by her previous statement under S. 161 CrPC. Materials on record indicated that PW 6 remained in company of appellant for about 12 days until she was recovered and she had freely moved around with appellant, in course of which movement, she came across many people at different points of time, yet, she did not complain of any criminal act on part of appellant. The Supreme Court held that in view of above, age of prosecutrix becomes relevant for determining whether she was a major so as to give her consent. Herein, prosecution had not succeeded in proving that prosecutrix was a minor on date of alleged occurrence. Possibility of prosecutrix being a consenting party cannot be altogether ruled out. Hence, order of High Court was set aside and appellant was acquitted on benefit of doubt. [Rajak Mohammad v. State of H.P., (2018) 9 SCC 248]

Police — Police Atrocities/Inaction/Custodial Death/Custodial Violence/ Illegal Detention: In this case involving allegation of custodial torture, parties relegated to High Court permitted to seek appropriate remedy. It was, however, clarified that grant of such liberty should not be construed as expression of any doubt regarding investigation process. [Sahil Sharma v. Union of India, (2018) 9 SCC 234]

Prevention of Corruption Act, 1988 — Ss. 7, 13(1)(d) and 20 — Illegal gratification: Demand and acceptance of illegal gratification is sine qua non to constitute offence under Ss. 7 and 13(1)(d). In this case demand of money by first accused and acceptance of bribe amount by second accused at the behest of first accused, was proved by evidence of complainant and trap witness. The Supreme Court held that findings of trial court did not suffer from any infirmity and High Court was not justified in setting aside conviction of both accused. No explanation was also offered by accused to rebut presumption under S. 20, hence, conviction under Ss. 7 and 13(1)(d), restored. [State of Gujarat v. Navinbhai Chandrakant Joshi, (2018) 9 SCC 242]

Service Law — Judiciary — Appointment — Nature of appointment: Appointments on ad-hoc basis are not “contractual appointment” when against sanctioned posts or on pay scale. Hence, appointment of appellants as Fast Track Court Judges for five years which was extended against sanctioned posts on ad hoc basis on pay scale, not contractual appointment. [K. Anbazhagan v. High Court of Madras, (2018) 9 SCC 293]

Service Law — Recruitment Process — Eligibility criteria/conditions — Relaxation of norms/conditions: In this case, for recruitment to posts of Assistant Traffic Inspectors, 75% was by promotion and 25% by direct recruitment, however, due to existence of large number of vacancies and dire need of Assistant Traffic Inspectors but absence of qualified people for promotion, relaxation of requirement of experience of 5 yrs was given, which was notified as part of educational qualifications in terms of Kolhapur Municipal Corporation Regulation No. 119 dt. 14-5-1991, and appellants (15 candidates) were appointed by direct recruitment. It was held by the Supreme Court that interest of justice would be served if appellants and others recruited along with them who had worked for over 23 yrs now are allowed to continue as having been regularly recruited and appointed since in case their appointments are quashed there would only be 1 Asstt. Traffic Inspector actually working and 2 Assistant Traffic Inspectors eligible for promotion against 25 available posts. It was also noted that notification relaxing criteria was also challenged by respondent Trade Union only after appointments were made. [Sunil Shamrao Jadhav v. Kolhapur Municipal Corpn., (2018) 9 SCC 215]

Trade Marks Act, 1999 — Ss. 9, 11 and 18 — Registration of the phonetically similar mark “NANDHINI” to the earlier registered/in use mark “NANDINI” — Test of deceptiveness/confusion — Application of: Registration is permissible when such latter mark is used for different goods/nature of business and visual appearance of two marks is so different that average person of ordinary intelligence would not be deceived or confused between goods concerned. Further, registration of trade mark qua certain goods falling under one class does not vest monopoly over the entire class of goods with the proprietor of registered mark. [Nandhini Deluxe v. Karnataka Coop. Milk Producers Federation Ltd., (2018) 9 SCC 183]

Cases ReportedSupreme Court Cases

Arbitration and Conciliation Act, 1996 — S. 34 and S. 13(6) — Practice and procedure qua applications made for setting aside an award under S. 34: An application for setting aside an arbitral award will not ordinarily require anything beyond the record that was before the arbitrator. However, if there are matters not contained in such record, and are relevant to the determination of issues arising under S. 34(2)(a), they may be brought to the notice of the Court by way of affidavits filed by both parties. Further, cross-examination of persons swearing to the affidavits should not be allowed unless absolutely necessary. [Emkay Global Financial Services Ltd. v. Girdhar Sondhi, (2018) 9 SCC 49]

Armed Forces — Appointment — Criteria/Eligibility — Post of DGMS (Army): Word “inter se” in Para (i) of Administrative Instructions dt. 10-7-1992, issued by Government of India, Ministry of Defence, inter alia, stipulating “inter se seniority and suitability of officers in rank of Lieutenant General (and equivalent) … shall be assessed in light of their earlier experience of serving in particular services …” applies both to seniority as well as suitability. As far as inter se seniority is concerned, person who is senior gets precedence. Further held, while assessing “suitability” fitness of the incumbent to post is to be measured and “inter se suitability” has reference to assessing suitability of all eligible officers. Respondent was senior-most Lieutenant General fulfilling eligibility criteria for appointment to post of DGMS (Army). Finding in Para 7 of Note dt. 23-1-2018 issued by DGAFMS that since respondent was newly promoted from rank of Major General, he did not have “previous exposure to working and environs of IHQ of MoD” and hence proposing him to be appointed as DGMS (AF) instead of DGMS (Army) not fair and objective consideration of his suitability to post as it is not necessary to have work experience in IHQ alone. While affirming conclusion of AFT quashing appointment one S as DGMS (Army), but disagreeing with its direction to appoint respondent straightaway to said post, matter remitted to Raksha Mantri for fair, dispassionate and objective consideration. [Union of India v. Manomoy Ganguly, (2018) 9 SCC 65]

Bangalore Development Authority Act, 1976 (12 of 1976) — Ss. 27, 17, 36, 52, 18, 19 and 15 — Benevolent development scheme in public interest — Delay in implementation of, after issuance of preliminary notification under S. 17, BDA Act: Time constraints under S. 11-A, LA Act not applicable to scheme under BDA Act. Shock expressed at non-consideration of precise law required to adjudicate matter, laid down by Constitution Bench in Offshore Holdings (P) Ltd., (2011) 3 SCC 139. With regard to limitation of 5 years under S. 27 of BDA Act, it was clarified that there is a vast difference between provisions and action taken pursuant to preliminary notification (S. 17) and final notification (S. 19) under BDA Act. [BDA v. State of Karnataka, (2018) 9 SCC 122]

Constitution of India — Art. 136: Permission to file SLPs against High Court order was granted to informant. Subsequently, petitions for withdrawal of SLPs filed by informant. It was held that proceedings of criminal case, specially of instant nature i.e. case under S. 396 IPC, cannot depend on whims of informant, hence, prayer for withdrawal of SLPs rejected. [Amar Nath Jha v. Nand Kishore Singh, (2018) 9 SCC 144]

Constitution of India — Art. 21 — Right to Proper Legal Representation on part of accused lodged in jail: To facilitate dialogue between counsel and his client, which would further cause of justice and make legal aid meaningful, videoconferencing between counsel for accused on one hand and accused lodged in jail or anybody knowing the matter on the other, was made mandatory as per directions of Supreme Court Legal Services Committee (SCLSC). Said directions affirmed, and directed to be extended nationwide. [Imtiyaz Ramzan Khan v. State of Maharashtra, (2018) 9 SCC 160]

Constitution of India — Arts. 233 to 235 and 32 — Public Interest Litigation (PIL): Directions were sought for immediate filling of unfilled vacancies in subordinate judiciary leading to pendency of matters but Supreme Court declined to interfere as steps to fill up vacancies had already been taken by High Courts. [Ashwini Kumar Upadhyay v. Union of India, (2018) 9 SCC 64]

Constitution of India — Arts. 80(4), 81, 158 and 171 — Elections to Council of States (Rajya Sabha): Introduction of NOTA in election to Council of States (Rajya Sabha) by Election Commission is not permissible, as it is in opposition to discipline of political parties. Votes polled in election to Council of States being of transferable nature, NOTA would alter value of vote. Introduction of NOTA is anathema to free and fair election to Rajya Sabha and brings in likelihood of promoting defection. Distinctions between elections to Council of States (Rajya Sabha)/Legislative Council and House of People (Lok Sabha)/Legislative Assembly (Vidhan Sabha), summarized. [Shailesh Manubhai Parmar v. Election Commission of India, (2018) 9 SCC 100]

Motor Vehicles Act, 1988 — S. 166 — Compensation — Computation of income: Deceased was aged 38 yrs at the time of death and in business of selling desi ghee and namkin bhujia, with monthly income of Rs 3500. Tribunal however, held that deceased had an unnamed shop in a small village not paying tax, assessed income at Rs 1200 p.m. and awarded Rs 1,15,200 after applying a multiplier of 12, with interest at 15 per cent p.a. It was held by the Supreme Court that income should have been assessed at Rs 2500 p.m. having due regard to nature of business, date of accident and all circumstances of case. Following Pranay Sethi, (2017) 16 SCC 680, quantum of compensation recomputed as monthly income: Rs 2500, and annual income: Rs 30,000, deduction of one-third for personal expenses: Rs 10,000, net annual income: Rs 20,000, future prospects at 40 per cent: Rs 8000, total income: Rs 28,000, using appropriate multiplier 16, total compensation for loss of dependency: Rs 4,48,000. For conventional heads Rs 75,000, total compensation: Rs 5,23,000, appellants entitled to interest @ 9 per cent p.a. from date of petition until payment. [Santosh Devi v. Mahaveer Singh, (2018) 9 SCC 146]

Penal Code, 1860 — Ss. 363 and 366 — Conviction under: Appellant-accused was sentenced to 7 years’ imprisonment with Rs 1000 fine but there was subsequent compromise between parties. De facto complainant, since married to another person and living happily, had no complaint against appellant. In such circumstances, conviction confirmed, but, sentence modified, being limited to period already undergone. [Sajid v. State of Uttarakhand, (2018) 9 SCC 159]

Penal Code, 1860 — Ss. 396 and 412 — Dacoity with murder: High Court appreciated every aspect of matter on facts and considered entire material on record, while acquitting two accused and remanded appeal of third accused for consideration by Juvenile Justice Board on finding arrived at by High Court, that he was a juvenile at the time of commission of said offence and as no material was present, to disagree with reasons assigned and conclusions arrived at by High Court, High Court judgment affirmed. [Amar Nath Jha v. Nand Kishore Singh, (2018) 9 SCC 137]

Public Premises (Eviction of Unauthorised Occupants) Act, 1971 — Ss. 3(b), 4 and 7(3) — Jurisdiction of Estate Officer with respect to proceedings relating to public premises: An Estate Officer has to exercise his jurisdiction in relation to public premises falling in local limits specified in notification issued under S. 3 of PP Act, 1971 for exercise of that jurisdiction. [Savatram Rampratap Mills v. Radheyshyam, (2018) 9 SCC 154]

SCs, STs OBCs and Minorities — Caste/Tribe Certificate — Remand — When warranted — Non-consideration of entire evidence: When a party relies upon any evidence in support of his case, the Court/Committee/authority, as the case may be, especially original court is under obligation to apply its mind to entire evidence produced and record its reasoned findings. Consideration of entire evidence in accordance with law is important. [Vilas Dinkar Bhat v. State of Maharashtra, (2018) 9 SCC 89]

Service Law — Pay — Pay fixation — Pay protection — Entitlement to — Resolution dt. 27-11-1991 granting benefit of pay scale of Rs 700-1600 from their initial appointment date in Senior College to “rest category” Teachers: Security of tenure for teacher, who dedicates her life for education of students is of utmost importance and insecurity should not be created, more so when they are through a process of really subterfuge of giving artificial breaks. But for artificial break of one day which was due to change in curriculum, appellant was in continuous service for two decades and that was how it was really understood by the college as well as the State Government since they had given pension to her which is admissible only after 20 years of service. Appellant is entitled to be treated in pay scale of Rs 700-1600 and all benefits of Resolution dt. 27-11-1991. Respondents directed to calculate emoluments due to appellant and disburse the same within stipulated time failing which it would carry simple interest @ 12% p.a. [Ahalya A. Samtaney v. State of Maharashtra, (2018) 9 SCC 92]

Taxation — Concession/Exemption/Incentive/Rebate/Subsidy — Exemption notification or exemption clause: General principle that in case of ambiguity, a taxing statute should be construed in favour of the assessee, is not applicable to an exempting provision. Every taxing statute including, charging, computation and exemption clauses, at the threshold stage should be interpreted strictly. Further, though in case of ambiguity in charging provisions, the benefit necessarily goes in favour of assessee, but for an exemption notification or exemption clause the benefit of ambiguity must be strictly interpreted in favour of the Revenue/State. [Commr. of Customs v. Dilip Kumar & Co., (2018) 9 SCC 1]

W.B. Premises Tenancy Act, 1997 (37 of 1997) — S. 5(8) (as incorporated by Amendment Act 14 of 2001) — Statutory liability to pay municipal taxes on tenants as occupiers, post amendment — Supersession of contractual liability to pay municipal taxes and enhancements in municipal taxes as part of rent — Effect of: Liability to pay enhanced municipal taxes by tenant as occupier, held, having become a statutory liability, there was no requirement on part of landlord of obtaining formal order of enhancement of rent from Rent Controller. [Popat & Kotecha Property v. Ashim Kumar Dey, (2018) 9 SCC 149]