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2020 SCC Vol. 2 March 7, 2020 Part 5

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Cases Reported Supreme Court Cases

2020 SCC Vol. 2 February 28, 2020 Part 4

Narcotic Drugs and Psychotropic Substances Act, 1985 — Ss. 50 and 18 — Search and seizure: In this case, contraband was recovered from bag carried by accused, hence, S. 50 stood complied with. From oral and documentary evidence, it is clear, that courts below were right in their findings. As prosecution proved guilt of accused beyond reasonable doubt, conviction of accused under S. 18, confirmed. [Surinder Kumar v. State of Punjab, (2020) 2 SCC 563]

Constitution of India — Arts. 300-A and 21 — Right to property as a human right — Implications of — Property as seed-bed of all other freedoms: It is accepted in every jurisprudence and by different political thinkers that some amount of property is an indispensable safeguard against tyranny and economic oppression of the Government. Liberty cannot long subsist without the support of property. Property must be secured, else liberty cannot subsist. Indeed the view that property itself is the seed-bed which must be conserved if other constitutional values are to flourish, is the consensus among political thinkers and jurists. [Vidya Devi v. State of H.P., (2020) 2 SCC 569]

Ss. 9 and 3 — Mandatory nature of — Non-compliance with S. 9 r/w R. 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995: In this case, Respondents were charged under Ss. 302/34 and 404/34 IPC apart from S. 3(2)(v) of the 1989 Act. Investigation was conducted by Sub-Inspector and not by DSP as required by R. 7 of the 1995 Rules. It was held by the Supreme Court that the proceedings under SC/ST Act, were rightly quashed by courts below, but charge-sheet deserved to proceed in an appropriate competent court of jurisdiction for offences punishable under IPC, as investigation had been made by a competent police officer in accordance with provisions of CrPC, so far as the offences punishable under IPC were concerned. Impugned order was accordingly restricted to offence under S. 3 of the 1989 Act and not in respect of offences punishable under IPC. [State of M.P. v. Babbu Rathore, (2020) 2 SCC 577]

Service Law — Appointment — Non-appointment/Denial of appointment/Right to appointment: Right to appointment does not accrue merely upon participation in selection process and even upon being placed in merit list. [Mohd. Rashid v. Local Bodies, (2020) 2 SCC 582]

Service Law — Misconduct — Absence from duty/Unauthorised absence/Absenteeism — Proportionality/Quantum of punishment: In this case, Respondent failed to report for duty for about seven years (1991 to 1998) after availing leave for 9 days and defying direction of Commandant to present himself before CDMO for medical examination. The High Court by the impugned judgment substituted punishment of discharge with that of compulsory retirement by relying on medical certificate. The Supreme Court held that the impugned judgment of the High Court was not proper and restored the punishment of discharge. [State of Odisha v. Ganesh Chandra Sahoo, (2020) 2 SCC 588]

Constitution of India — Sch. X Para 6 — Disqualification of Member of Legislative Assembly — Speaker’s order disqualifying Member — Scope of Speaker’s jurisdiction: While disqualifying Member, Speaker has no jurisdiction to specify period of disqualification such as disqualification would continue till end of term of Legislative Assembly and during that period Member would not be entitled to contest elections, even if they might have defected to another party (for which they might have suffered the disqualification). [Shrimanth Balasaheb Patil v. Karnataka Legislative Assembly, (2020) 2 SCC 595]

Constitution of India — Art. 14 — Classification — Religious institutions — Rent control legislations: Separate classification of properties belonging to religious institutions for purpose of rent legislations [like Punjab Religious Premises and Land (Eviction and Rent Recovery) Act, 1997 herein], held, permissible. It is not violative of Art. 14. Court can interfere only when the policy of Act is irrational. [Harbhajan Singh v. State of Punjab, (2020) 2 SCC 659]

Civil Procedure Code, 1908 — Or. 7 R. 6 and proviso thereto — Applicability of — Grounds of exemption from limitation law: Stating of grounds of exemption in pleadings is necessary. Proviso to Or. 7 R. 6 permit exemption from law of limitation on any ground not set out in plaint, so long as such ground was not inconsistent with grounds set out in plaint. [Shanti Conductors (P) Ltd. v. Assam SEB, (2020) 2 SCC 677]

Penal Code, 1860 — S. 85 — Applicability of exception — Defence of intoxication when thing which intoxicated accused was administered to him without his knowledge or against his will: Defence of intoxication/drunkenness can be availed of only when intoxication produces such a condition as accused loses the requisite intention for the offence and onus of proof about reason of intoxication, due to which accused had become incapable of having particular knowledge in forming particular intention, is on the accused. Evidence of drunkenness which renders accused incapable of forming the specific intent essential to constitute the crime should be taken into account with the other facts proved in order to determine whether or not he had the intention. Merely establishing that his mind was affected by drink so that he more readily gave way to some violent passion, does not rebut the presumption that a man intends the natural consequences of his acts. [Suraj Jagannath Jadhav v. State of Maharashtra, (2020) 2 SCC 693]

Penal Code, 1860 — S. 34 — Common intention — Vicarious liability — Inference of: In order to invoke principle of joint liability in commission of criminal act as laid down in S. 34, prosecution should show that criminal act in question was done by one of the accused persons in furtherance of common intention of all. Common intention may be through a pre-arranged plan, or it may be generated just prior to the incident. Common intention denotes action in concert, and a prior meeting of minds. The acts may be different, and may vary in their character, but they are all actuated by the same common intention. Question as to whether there is any common intention or not depends upon the inference to be drawn from the proven facts and circumstances of each case. Totality of the circumstances must be taken into consideration in arriving at the conclusion whether accused persons had the common intention to commit the offence. [Virender v. State of Haryana, (2020) 2 SCC 700]

Cases Reported Supreme Court Cases

2020 SCC Vol. 2 February 21, 2020 Part 3

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Cases Reported Supreme Court Cases

2020 SCC Vol. 2 February 14, 2020 Part 2

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

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

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

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

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

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

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

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

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

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

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

Cases Reported Supreme Court Cases

2019 SCC Vol. 10 December 21, 2019 Part 4

Service Law — Pension — Work-Charged Employee: Period of work-charged service can be reckoned for purpose of computation of qualifying service for grant of pension. [Habib Khan v. State of Uttarakhand, (2019) 10 SCC 542]

Insolvency and Bankruptcy Laws — Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 — Regn. 38 (as existing prior to amendment made on 5-10-2018): Differential treatment of dissenting financial creditor i.e. differential liquidation value that would be paid to dissenting financial creditors is permissible under unamended regulations. [Rahul Jain v. Rave Scans (P) Ltd., (2019) 10 SCC 548]

Criminal Trial — Appreciation of Evidence — Contradictions, inconsistencies, exaggerations or embellishments — Minor discrepancies: Undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and do not shake the basic version of prosecution witness — This is particularly true when prosecution case is corroborated by medical and forensic evidence. [Rohtas v. State of Haryana, (2019) 10 SCC 554]

Insolvency and Bankruptcy Code, 2016 — Ss. 238-A and 7: Art. 137 of Limitation Act provides for a limitation period of 3 years, while Art. 62 of Limitation Act providing for limitation period of 12 years for recovery of debts secured with immovable property. Date of enforcement of Insolvency and Bankruptcy Code is irrelevant for computation of limitation period i.e. no new lease of life to be given to debts which are already time-barred. [Gaurav Hargovindbhai Dave v. Asset Reconstruction Co. (India) Ltd., (2019) 10 SCC 572]

Administrative Law — Promissory Estoppel — Applicability — Nature and Scope — Invocation of the Doctrine — Principles summarized: Fundamental principles of equity must for ever be present to mind of court, while considering applicability of the doctrine. Doctrine must yield when equity so demands if it can be shown having regard to facts and circumstances of the case that it would be inequitable to hold the Government or the public authority to its promise, assurance or representation. Public interest is the superior equity which can override individual equity. Moreover, the doctrine of cannot be invoked for enforcement of a promise made contrary to law. [Union of India v. Unicorn Industries, (2019) 10 SCC 575]

M.P. Land Revenue Code, 1959 (20 of 1959) — S. 158(v)(b) — Bhumiswami rights — Tenability of claim as to: As the grassland under personal cultivation of erstwhile zamindar was not found to be khudkasht land of proprietor within meaning of S. 2(c) of M.B. Zamindari Abolition Act and not fulfilling essential conditions under S. 4(2), hence stood vested in the State under S. 4(1) thereof, claim of bhumiswami right, held untenable. [State of M.P. v. Sabal Singh, (2019) 10 SCC 595]

Constitution of India — Arts. 141 and 144: Judgment and order of the Supreme Court disposing of appeal against decision of High Court arising out of representative suit is final and binding on all concerned. All courts and civil and judicial authorities are required to act in aid thereof. [ISSAC Mattammel Cor-Episcopa v. St. Mary’s Orthodox Syrian Church, (2019) 10 SCC 606]

Town Planning — Parking Area — Infrastructure need, policy initiatives, pilot project and desired administrative action with regard to parking in Delhi: Directions issued with regard to — (a) Clearance of encroachments in pavements of residential areas and framing of rules for discouraging such encroachers, (b) expeditious notification of the draft rules of Delhi Maintenance and Management of Parking Places Rules, 2019 not later than 30-9-2019 and enforcement of same in letter and spirit by all concerned, (c) proper assessment of parking needs for next 25 yrs while granting building permissions, (d) considerations while evaluating feasibility and effectiveness of pilot project, (e) considering viability and effectiveness of introducing modern technology, that is, RFID tags, parking guidance and information systems and last mile connectivity from parking spaces to commercial areas, institutions, etc. and submit a report in this behalf by 30-9-2019. [M.C. Mehta v. Union of India, (2019) 10 SCC 614]

Penal Code, 1860 — S. 120-B and S. 302 — Criminal conspiracy — Existence of — Proof of — Essential elements summarized: Three essential elements must be shown: a criminal object, a plan or scheme embodying means to accomplish that object, and agreement between two or more persons to cooperate for accomplishment of such object. In this case, conspiracy to murder was not established against A-1 and A-5, but they were correctly convicted under Ss. 302/34. [Rajender v. State (NCT of Delhi), (2019) 10 SCC 623]

Constitution of India — Art. 235 — Powers of High Court of supervision of subordinate courts — Exercise of disciplinary powers — Scope: High Court’s role as guardian and protector of District Judiciary in maintaining its independence, explained. Misconduct distinguished from mere passing of erroneous orders. Erroneous orders to form part of service record to determine career progression of judicial officer concerned, but cannot, held, by themselves be considered as misconduct, unless they are passed for extraneous reasons, illegal gratification, etc. [Krishna Prasad Verma v. State of Bihar, (2019) 10 SCC 640]

Narcotic Drugs and Psychotropic Substances Act, 1985 — Ss. 42 and 8/15 — Search and seizure: When seizure of material is proved on record and is not even doubted or disputed, entire contraband material need not be placed before court. At times the material could be so bulky, that it may not be possible and feasible to produce the entire bulk before the court. Further, if seizure is otherwise proved, what is required to be proved, is fact that samples taken from and out of contraband material were kept intact, that when samples were submitted for forensic examination seals were intact, that report of forensic experts shows potency, nature and quality of contraband material and that based on such material, essential ingredients constituting an offence are made out. [State of Rajasthan v. Sahi Ram, (2019) 10 SCC 649]

W.B. Premises Tenancy Act, 1997 (37 of 1997) — S. 7 — Scope and Nature of: S. 7(2), held, is mandatory in nature. Courts lack power to extend time where tenant defaults in payment of rent. S. 5 of Limitation Act, 1963 is not applicable to proceedings under S. 7(2). [Bijay Kumar Singh v. Amit Kumar Chamariya, (2019) 10 SCC 660]

Service Law — Pay — Pay scale, fixation and revision — Differentiation based on training — Classification based on academic qualifications and experience — Legality of: Nature of work may be more or less the same but scale of pay may vary based on academic qualification or experience which justifies classification. “Principle of equal pay for equal work” cannot be applied in mechanical manner. Classification made by body of experts after full study and analysis of work should not be disturbed except for strong reasons which indicate classification made to be unreasonable. Inequality of men in different groups excludes applicability of principle of equal pay for equal work to them. Hence, validity of lower pay scale for untrained teachers, affirmed. [Director of Elementary Education v. Pramod Kumar Sahoo, (2019) 10 SCC 674]

Education Law — Employment and Service Matters re Educational Institutions — Appointment/Recruitment: As illegal appointment was made by Management of college concerned, denial of financial approval by State, held proper. [Ravindra Singh v. Distt. Inspector of Schools, (2019) 10 SCC 679]

Criminal Procedure Code, 1973 — S. 482 — Quashment power under: Minute consideration of evidence and defence put forth at S. 482 stage is not permissible. [CBI v. Arvind Khanna, (2019) 10 SCC 686]

Constitution of India — Arts. 226 and 136 — Writ of certiorari — Nature and scope — Principles summarized: Writ of certiorari, held, is intended to correct jurisdictional excesses and the writ court cannot sit as appellate court and reappreciate evidence. [Electrical Rengali Hydro Electric Project v. Giridhari Sahu, (2019) 10 SCC 695]

Cases Reported Supreme Court Cases

2019 SCC Vol. 10 December 14, 2019 Part 3

Insolvency and Bankruptcy Code, 2016 — S. 238-A (as inserted w.e.f. 6-6-2018) r/w Ss. 7 and 9 — Art. 137 of Limitation Act, 1963 — Applicability: Date of coming into force of IB Code does not and cannot form a trigger point of limitation for applications filed under the Code and since “applications” are petitions which are filed under the Code, it is Art. 137 of the Limitation Act which will apply to such applications. [Sagar Sharma v. Phoenix ARC (P) Ltd., (2019) 10 SCC 353]

Constitution of India — Arts. 226 and 227 — Maintainability of writ petition — Alternative remedy/Exhaustion of remedies: In this case there was sale of immovable property belonging to deity, to appellant K, after following the procedure mandated by law (under Religious Endowments Act concerned). The Supreme Court held that the interference made by Division Bench of High Court in writ appeals considering the so-called lucrative offer made by R-4 and R-5 who were merely interveners, was not proper. [K. Arjun Das v. Commr. of Endowments, (2019) 10 SCC 355]

Service Law — Departmental Enquiry — Criminal proceedings — Acquittal: Law summarized regarding effect of acquittal in criminal proceedings on punishment imposed in departmental enquiry. [Karnataka Power Transmission Corpn. Ltd. v. C. Nagaraju, (2019) 10 SCC 367]

Criminal Procedure Code, 1973 — S. 482 — Quashment of proceedings: Where the allegations made in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute a case against the accused, the High Court would be justified in quashing the proceedings. [M. Srikanth v. State of Telangana, (2019) 10 SCC 373]

Education Law — Employment and Service Matters re Educational Institutions — Appointment/Recruitment — Recruitment process — Eligibility criteria: In this case in recruitment of teachers in Zila Parishads, in terms of advertisement, applicants were required to fulfil requisite eligibility before last date of submission of application form while in terms of proviso proof of eligibility could be submitted before declaration of result. While determining the effect of the amendment of the R. 266(3) of the Rajasthan Panchayati Raj Rules, 1996, the Supreme Court held that the amendment which substitutes provision essentially does two things viz. firstly, provision which is substituted undergoes repeal and secondly, there is re-enactment through newly inserted provision. Further held, proviso being an integral part of cl. (3) of R. 266 it would not survive after substitution of R. 266(3). Thus candidates were required to possess stipulated educational qualifications on last date of submission of application form. Advertisement was thus, in consonance with statutory rules. Furthermore, Circular dt. 29-2-2012 extending benefit of proviso to candidates after changing conditions of advertisement related to advertisement issued in 2012 and would have no bearing on advertisement issued in this case in year 2013. Hence, High Court erred in extending benefit of proviso to respondent. [State of Rajasthan v. Trilok Ram, (2019) 10 SCC 383]

Bombay Public Trusts Act, 1950 (29 of 1950) — Ss. 2(13), 19 and 28: “Public trust” includes constructive public trust. Court’s jurisdiction to declare existence of constructive trust can be derived from S. 88 of Trust Act, 1882 and S. 151 CPC, notwithstanding repeal of S. 94 of Trusts Act, 1882. [Janardan Dagdu Khomane v. Eknath Bhiku Yadav, (2019) 10 SCC 395]

Limitation Act, 1963 — Ss. 5 and 14 — Condonation of delay: Factors to be considered for condonation of delay in application filed by State, delineated. [State of Manipur v. Koting Lamkang, (2019) 10 SCC 408]

U.P. Zamindari Abolition and Land Reforms Act, 1950 (1 of 1951) — Ss. 166, 167 and 161 [before and after amendment vide U.P. Act 20 of 1982 w.e.f. 3-6-1981]: Before Amendment, held, transfers illegal by virtue of S. 166 r/w S. 167 including exchange of land in violation of S. 161 i.e. exchange without permission of Assistant Collector, were only voidable as per procedure provided in 1950 Act. After Amendment, they are void and vest in State free of all encumbrances. [Sita Ram v. Bharat Singh, (2019) 10 SCC 412]

Penal Code, 1860 — Ss. 302/34 and 201 — Death sentence — When justified: In this case, accused (tantric husband and wife) gruesomely murdered 2 yr old boy of their neighbour as human sacrifice to God. Head of boy was severed and tongue and cheeks were also cut out. Having regard to age of the accused, they were not possessed of the basic humanness, they completely lacked the psyche or mindset which can be amenable for any reformation. Furthermore, accused had previously committed similar murder of a six year old girl and were sentenced to life imprisonment till the end of their lives without remission in Ishwari Lal Yadav, (2019) 10 SCC 437. Thus, death sentence was confirmed. [Ishwari Lal Yadav v. State of Chhattisgarh, (2019) 10 SCC 423]

Criminal Trial — Confession — Extra-judicial confession/Hearsay — Evidentiary value of: Extra-judicial confession is a weak piece of evidence but, at the same time, if the same is corroborated by other evidence on record, such confession can be taken into consideration to prove guilt of accused. [Ishwari Lal Yadav v. State of Chhattisgarh, (2019) 10 SCC 437]

Arbitration and Conciliation Act, 1996 — Ss. 11 and 12 — Appointment of arbitrator: In this case though arbitration clause provided for Tribunal of three members, at the request of parties sole arbitrator was appointed. Clarification was issued on place of arbitration and remuneration. 12 months’ duration was provided for completion of proceedings. [Shaf Broadcast (P) Ltd. v. Doordarshan, (2019) 10 SCC 447]

Armed Forces — Penalty/Punishment — Subjective satisfaction of competent authority — Interference with — Scope — Principles explained: In this case, AFT despite noting that punishment of censure awarded by competent authority was justified interfering on specious ground that punishment of “Severe Displeasure (Recordable)” was not commensurate with misconduct proved. This was held to be not proper. [Union of India v. Kuldeep Yadav, (2019) 10 SCC 449]

Goa, Daman and Diu Land Revenue Code, 1968 (9 of 1969) — Ss. 32(2)(c), (3) & (6): Procedure laid down under, for levy of conversion charges, explained. While determining the effect of amendment to S. 32, it was held that relevant date for fixing conversion charges is date on which decision is taken to grant sanad. [State of Goa v. Alvaro Alberto Mousinho De Noronha Ferreira, (2019) 10 SCC 465]

Narcotic Drugs and Psychotropic Substances Act, 1985 — S. 50 — Object and applicability: Mandate of S. 50 is confined to “personal search” and not to search of vehicle or container or premises. Thus, illicit article seized from person during personal search conducted in violation of safeguards provided in S. 50, cannot by itself be used as admissible evidence of proof of unlawful possession of contraband. However, as held in Baldev Singh, (1999) 6 SCC 172, conviction may not be based “only” on basis of possession of illicit article recovered from personal search in violation of requirements under S. 50 but if there is other evidence on record, such material can certainly be looked into, including material recovered from search of vehicle or container or premises which was not in compliance with S. 50. [State of Punjab v. Baljinder Singh, (2019) 10 SCC 473]

Government Grants, Largesse, Public Property and Public Premises — Allotment without advertisement — Impermissibility of: Public property cannot be disposed of without any advertisement and without giving opportunity to eligible persons to apply and seek consideration of allotment of public property in transparent and non-discriminatory manner. State and its instrumentalities must act in consonance with Art. 14 of the Constitution. [Bihar State Housing Board v. Radha Ballabh Health Care & Research Institute (P) Ltd., (2019) 10 SCC 483]

Armed Forces Tribunal Act, 2007 — S. 15 — Jurisdiction of Tribunal — Scope: S. 15 confers wide power on Tribunal to allow appeal against conviction by court martial where finding of court martial is legally unsustainable i.e. where finding involves wrong decision on question of law or where there is material irregularity in course of trial resulting in miscarriage of justice. However, mere difference of opinion on appreciation of evidence cannot be a ground for interference. [Union of India v. Sandeep Kumar, (2019) 10 SCC 496]

Service Law — Pension — Work-Charged Employee — Service rendered as work-charged employee — Whether can be reckoned for computation of qualifying service: In terms of Note appended to R. 3(8) of the U.P. Retirement Benefit Rules, if service is rendered by work-charged employee in non-pensionable establishment, work-charged establishment, or, in post paid from contingencies falls between two periods of temporary service in pensionable establishment or period between temporary and permanent service in pensionable establishment, it would be counted as qualifying service for computation of pensionary benefits. Regn. 370 of the U.P. Civil Services Regulations exclude service in non-pensionable establishment, work-charged establishment and in post paid from contingencies from purview of qualifying service. Para 669 of Financial Handbook, Vol. VI relating to engagement of employees in work-charged establishment provide that except in cases mentioned thereunder members of work-charged establishment were not entitled to any pension, leave salary or allowances. Hence, in thid case, it was held that it would be highly discriminatory and irrational because of the rider contained in the Note to R. 3(8) of the 1961 Rules, not to count service rendered as work-charged employee particularly, when it can be counted, in case such service is sandwiched between two temporary or in-between temporary and permanent services. Impermissible classification has been made under R. 3(8). Service of work-charged period remains same for all employees and once it is counted for one class it must be counted for all to prevent discrimination. Reading down R. 3(8) to make it valid and non-discriminatory, service rendered as work-charged employees, contingency paid fund employees or non-pensionable establishment, held, shall also be counted as qualifying service even if such service is not preceded by temporary or regular appointment in pensionable establishment. Consequently, Regn. 370 and Para 669 are liable to be struck down. Service rendered in work-charged establishment directed to be treated as qualifying service for grant of pension. However, clarified that arrears of pension would be limited to three years before date of order.[Prem Singh v. State of U.P., (2019) 10 SCC 516]

Cases Reported Supreme Court Cases

2019 SCC Vol. 10 December 7, 2019 Part 2

Advocates — Strike/Boycott by Lawyers: Strike by Advocates of Odisha High Court over a decision of the Collegium clearing names of some candidate (who practises in Supreme Court) and not clearing name of another candidate, held, unwarranted and cannot be a ground for lawyers to abstain from work. [PLR Projects (P) Ltd. v. Mahanadi Coalfields Ltd., (2019) 10 SCC 306]

Arbitration and Conciliation Act, 1996 — S. 16 — Scope of reference: Dismissal of counterclaims by arbitrator, at threshold on the ground of being beyond the scope and jurisdiction of arbitrator without any enquiry is not proper. Decision by arbitrator only on disputes raised by claimant/applicant under S. 11 and not counterclaims of the other party, not permissible. [Bharat Petroleum Corpn. Ltd. v. Go Airlines (India) Ltd., (2019) 10 SCC 250]

Armed Forces — Discharge/Dismissal — Unsustainability — Violation of principles of natural justice and statutory rules: In this case, respondent was alleged to have caused grievous hurt to one S with talwar (sword) without provocation. There were irreconcilable inconsistencies between medical and oral evidence, and Tribunal took a probable view that evidence was not sufficient to establish guilt of respondent. Hence, held, impugned judgment setting aside punishment of dismissal called for no interference. [Union of India v. Pravat Kumar Behuria, (2019) 10 SCC 220]

Civil Procedure Code, 1908 — Or. 7 R. 11 — Rejection of plaint: Entirety of plaint averments have to be taken into consideration. Rejection of plaint without considering crucial aspects of case is not permissible. [Shaukathussain Mohammed Patel v. Khatunben Mohmmedbhai Polara, (2019) 10 SCC 226]

Constitution of India — Art. 137: In review of Azizia Bee, (2018) 15 SCC 206, in para 12 of judgment dt. 16-8-2017, (2018) 15 SCC 206, words “prima facie” added. It was clarified that the entire judgment of Single Judge stood affirmed and order of Division Bench was set aside. [State of A.P. v. Grace Sathyavathy Shashikant, (2019) 10 SCC 281]

Constitution of India — Art. 246, Sch. VII List I Entry 77, List II Entry 65 and List III Entry 46 & Arts. 138 and 323-B — Competence to deal with jurisdiction and powers of Supreme Court: Jurisdiction and powers of Supreme Court is beyond competence of State Legislature and such power rests only with Parliament. State Legislature cannot provide appeal directly to Supreme Court arising out of orders passed by Tribunals constituted under Art. 323-B. Consequently, S. 13(2) of Chhattisgarh Rent Control Act, 2011 providing appeal directly to Supreme Court against orders of Chhattisgarh Rent Control Tribunal, held, ultra vires and struck down. High Court can exercise supervisory jurisdiction under Art. 227 over such Tribunal. [H.S. Yadav v. Shakuntala Devi Parakh, (2019) 10 SCC 265]

Contract and Specific Relief — Contractual obligations and rights — Privity and Third-Parties’ Obligations and Rights — Partnership agreement: Clauses in agreement, against third parties i.e. legal representatives of partners will not bind the said third parties. Such clauses in partnership deed ran contrary to provisions of Partnership Act, 1932, were void, unenforceable and opposed to public policy. [S.P. Misra v. Mohd. Laiquddin Khan, (2019) 10 SCC 329]

Criminal Procedure Code, 1973 — S. 482 — Inherent powers of High Court under — When can be exercised: Exercise of inherent powers of High Court under this section to quash FIR, when there are serious triable allegations in complaint, not proper. [XYZ v. State of Gujarat, (2019) 10 SCC 337]

Criminal Trial — Sentence — Principles for sentencing — Tests for analysing sentencing: Crime test, criminal test and comparative proportionality test, explained. [State of M.P. v. Udham, (2019) 10 SCC 300]

Entertainment, Amusement, Leisure and Sports — Liquor — Licence/Levy —Cancellation/Suspension/Revocation of Licence: Grant of refund of licence fee and differential amount for the duration for which the premises of the licensee were sealed and its licence suspended, when such sealing/suspension is unlawful. Grant of opportunity/Issuance of show-cause notice to licensee is necessary prior to taking of punitive actions like cancellation/suspension of licence. [State of Bihar v. Riga Sugar Co. Ltd., (2019) 10 SCC 310]

Family and Personal Laws — Hindu Law — Joint Family — Self-acquired Property: Proof of self-acquired Property lies on that member who admits joint family status but contends that some properties are self-acquired properties. Appearance of name in revenue record does not make property as self-acquired property. [Prahlad Pradhan v. Sonu Kumhar, (2019) 10 SCC 259]

Income Tax — Practice and procedure — Notice/Summons/Knowledge of Proceedings — Summons to power-of-attorney holder of Company of court hearing — Validity of — Power-of-attorney holder/agent of Company: The term “agent” [as used in S. 2(35) of the Income Tax Act, 1961] would certainly include a power-of-attorney holder and the CA being the power-of-attorney holder of the Company was the agent of the assessee Company, and hence notice could be served on him. Hence, plea as to the attorney-holder not being aware of the nature of documents (summons) served upon him and not being in the position to inform his principal because of his health, not accepted. [CIT v. NRA Iron & Steel (P) Ltd., (2019) 10 SCC 206]

Maharashtra Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 (23 of 2001) — S. 6(1): Issuance of caste verification certificate should not be a casual exercise and Scrutiny Committee constituted under the Act, by State Government by issuing Noti. dt. 30-7-2011 to deal with numerous applications of candidates seeking to contest local self-government elections, held, must take assistance of Vigilance Cell to ensure that non-entitled persons do not get benefitted at the cost of entitled persons. [Collector, Satara v. Mangesh Nivrutti Kashid, (2019) 10 SCC 166]

Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (28 of 1971) — Ss. 2(ga), 3-C, 3-D, 4, 12 and 36 [as they stood prior to 2018 Amendment] — Declaration of slum rehabilitation area: Notification under S. 4, held, not prerequisite for passing orders under Ss. 3-C and 3-D. Ch. I-A of Act is self-contained code for matters dealing with slum rehabilitation schemes. Prior notice under S. 3-C is not required before declaring any area as slum rehabilitation area. Principles of natural justice, also held, are not applicable where there is compliance with S. 36. [Kantabai Vasant Ahir v. Slum Rehabilitation Authority, (2019) 10 SCC 194]

Negotiable Instruments Act, 1881 — Ss. 139 and 138 — Dishonour of cheque: In this case, there was sufficient evidence on record to raise presumption under S. 139 and accused failed to rebut the same, hence, conviction was confirmed. [Rahul Sudhakar Anantwar v. Shivkumar Kanhiyalal Shrivastav, (2019) 10 SCC 203]

Negotiable Instruments Act, 1881 — Ss. 139, 118 and 138 — Dishonour of cheque — Burden of rebuttal of presumption under Ss. 118 and 139 — Matters to be established by accused — Law summarized: The presumption mandated by S. 139 does indeed include the existence of a legally enforceable debt or liability. Bare denial of the passing of the consideration and existence of debt, is not enough to rebut the presumption. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. Rather, something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the consideration did not exist, or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. Accused may also rely upon presumptions of fact, for instance, those mentioned in S. 114 of the Evidence Act to rebut the presumptions arising under Ss. 118 and 139 of the NI Act. [Uttam Ram v. Devinder Singh Hudan, (2019) 10 SCC 287]

Penal Code, 1860 — S. 302 — Murder of wife — Circumstantial evidence — Death if suicidal by hanging, or, homicidal — Determination of — Medical evidence: In this case, fact that neck of deceased was not found stretched and elongated, considering that body was still fresh, ruled out any possibility of suicide by deceased. The tongue was not protruding. There was no fracture or dislocation of bones in neck area. Saliva was not running down face or chest of deceased but had flowed out at the left of the mouth. Injuries on the person of deceased, as noticed in inquest report as also in post-mortem report, are clearly indicative of a struggle or resistance put up by deceased in the last hour. Hence, it was held that the deceased was strangulated to death as it would not also be possible for appellant to hang the deceased alone. Thus, in light of all the circumstances established against appellant, conviction under S. 302 IPC was confirmed. [Kalu v. State of M.P., (2019) 10 SCC 211]

Penal Code, 1860 — S. 302 or S. 304 Pt. I [S. 300 Fourthly or Exception 4] — Murder or culpable homicide not amounting to murder — Imminently dangerous act: In this case, incident in question took place half an hour after there was abusive language used by nephew/cousin of A-1. There was no grave and sudden provocation by deceased (mother of complainant). Accused fired from a country-made firearm at deceased from a close range. Accused was supposed to know that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death. The Supreme Court held that the High Court erred in applying Exception 4 to S. 300 IPC by holding that it was not a planned crime and there was no prior intention and it took place in the heat of passion on the spur of the moment. It was further held that the case falls under S. 300 Fourthly IPC and conviction under S. 302 IPC was restored. [Awadhesh Kumar v. State of U.P., (2019) 10 SCC 323]

Penal Code, 1860 — Ss. 306 and 107 — Abetment to commit suicide — Ingredients for abetment — Instigation to commit suicide: A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. To draw the inference of instigation it all depends on facts and circumstances of the case. [State of W.B. v. Indrajit Kundu, (2019) 10 SCC 188]

Probation of Offenders Act, 1958 — S. 4 — Grant of probation under: Extension of benefit regarding retention/continuation of service is not permissible. Even in a case where the High Court grants benefit of probation to the accused, held, court has no jurisdiction to pass an order that the employee be retained in service/or grant benefit of continuation in service. [State of M.P. v. Man Singh, (2019) 10 SCC 161]

Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 — S. 24(2) — Persons entitled to benefit of: Sale of land involved in acquisition proceedings after issuance of notification under S. 4, LA Act, 1894, is void. Hence, it does not give any right to subsequent purchasers to invoke provisions of S. 24(2) of 2013 Act. Even proviso to S. 24(2) does not recognise such purchasers. [Shiv Kumar v. Union of India, (2019) 10 SCC 229]

Service Law — Recruitment Process — Eligibility criteria/conditions — Cut-off date/point — Shifting of date of eligibility — What amounts to: In this case, for recruitment to State and Subordinate Services in State of Rajasthan, last date for submission of application forms stipulated was 31-7-2013. Press Note dt. 12-11-2014 was issued granting opportunity to candidates to make corrections in their online application form and change of category on payment of stipulated amount. While determining that this whether amounts to shift in date of eligibility, the Supreme Court held that the Press Note issued only allowed corrections or to change category in application forms already submitted online and did not grant opportunity to candidates to apply afresh. High Court erred in shifting eligibility date on basis of Press Note. [Rajasthan Public Service Commission v. Shikun Ram Firuda, (2019) 10 SCC 271]

Specific Relief Act, 1963 — Ss. 9 and 13 — Agreement to sell immovable property: Agreement to sell property inherited after death of female Hindu dying intestate must be restricted only to share inherited by executant. [Sirdar K.B. Ramachandra Raj Urs v. Sarah C. Urs, (2019) 10 SCC 343]

Tenancy and Land Laws — Ceiling on Land — Lands declared surplus — Identification of: In this case, to put an end to litigation, exercising power under Art. 142 of the Constitution, land at Survey No. 19/P marked in second survey report as “PQRS” declared as actually being Survey No. 129/45/D. The Supreme Court set aside the allotment made to Andhra Prabha Publications, and directed that land to be delivered by Andhra Prabha to appellants within eight weeks. All amounts paid by Andhra Prabha Publications to Government to be refunded within twelve weeks with simple interest at 6% p.a. [State of A.P. v. Grace Sathyavathy Shashikant, (2019) 10 SCC 276]

Trusts and Trustees — Religious and Charitable Endowments and Trusts — Temple — Private or public: In this case, suit was filed by deity through pujaris claiming ownership of temple lands on ground of temple being private temple. Name of deity consistently entered in revenue record from 1969 to 1977 but in year 1979-1980 correction in revenue entries made by substituting name of Collector in place of deity in respect of temple lands asserting temple to be public temple. First appellate court and High Court concurrently found that procedure prescribed under S. 115 of Code not complied with while making correction. In view of this concurrent finding, it was held that change in entry in revenue record in name of Collector vitiated by absence of proper enquiry and opportunity to affected person in terms of S. 115. [State of M.P. v. Murti Shri Chaturbhujnath, (2019) 10 SCC 319]

Cases Reported Supreme Court Cases

2019 SCC Vol. 10 November 28, 2019 Part 1

Education Law — Medical and Dental Colleges — Postgraduate/Superspeciality courses — Institutional reservation: Institutional preference in PG admissions after introduction of NEET scheme, held, valid. NEET scheme has nothing to do with institutional reservation. The purpose of NEET is uniform entrance examination so that admissions are made on the basis of merit. Even if there is an institutional preference, admissions are made on basis of marks obtained in NEET. [Yatinkumar Jasubhai Patel v. State of Gujarat, (2019) 10 SCC 1]

Income Tax Act, 1961 — Ss. 143(2) and 142(1) r/w proviso to S. 143 — Notice/Notice of Demand: Mere mentioning of new address in return of income without specifically intimating assessing officer with respect to change of address and without getting PAN database changed, is not enough and sufficient. Thus, in absence of any specific intimation to assessing officer with respect to change in address and/or change in name of assessee, assessing officer would be justified in sending notice at available address mentioned in PAN database of assessee, more particularly when return has been filed under E-Module scheme. [CIT v. I-Ven Interactive Ltd., (2019) 10 SCC 13]

Rights of Persons with Disabilities Act, 2016 — S. 32 — Governmental educational institutions — Requirement of 5% reservation: Judicial review of the expert opinion regarding eligibility criteria of minimum physical fitness for certain courses like MBBS course, not permissible. [Vidhi Himmat Katariya v. State of Gujarat, (2019) 10 SCC 20]

Criminal Procedure Code, 1973 — Ss. 386 and 374: In this case, the conviction and sentence imposed on the appellant-accused was upheld by High Court without record of the trial court, which was lost during pendency of appeal before it. Hence, the order passed by the High Court, was held unsustainable. The order was set aside and matter was remanded back to it for hearing appeals afresh, after reconstruction of record of the trial court. [Savita v. State of Delhi, (2019) 10 SCC 29]

Arbitration — Government/PSUs Inter se disputes: The disputes between public sector undertakings (PSUs), must be referred, first to Administrative Mechanism for Resolution of CPSEs Disputes (AMRCD), and only in event of non-settlement, to Arbitral Tribunal. [MTNL v. Canara Bank, (2019) 10 SCC 32]

Armed Forces — Promotion — Promotion to rank of Air Vice-Marshal — Promotion Policy dt. 20-2-2008 — Cls. 11, 13, 15, 16, 17 and 22 — Validity: In this case, appellant though ranking first in merit list was not promoted since he was placed at Sl. No. 3 in seniority list; first officer on select list being promoted on 11-5-2015 against first available vacancy whereas next two vacancies arising on 1-8-2015 and 1-9-2015 after appellant attaining age of superannuation on 30-6-2015. The Supreme Court held that in terms of Cls. 17 and 22 select list of officers was to be prepared from merit list and thereafter rearranged in order of seniority to ensure that candidates falling within zone of consideration were shortlisted for promotion but ultimate promotion was on basis of seniority from amongst selected candidates. Such policy providing equal opportunity to officers falling within zone of consideration cannot be said to be illegal, arbitrary or discriminatory violating Arts. 14 and 16 of the Constitution. It was further held that mere fact that appellant could not be promoted due to non availability of vacancies before his superannuation cannot be a ground to strike down Promotion Policy since policy can be struck down only if it has no reasonable nexus with objective sought to be achieved and is discriminatory. Policy dt. 20-2-2008 suffers from no illegality and hence, Tribunal was justified in not interfering therewith. [Naveen Jain v. Union of India, (2019) 10 SCC 34]

Service Law — Promotion — Accelerated/Out of turn promotion — Reasonable classification: Higher educational qualification having nexus to job to be performed, held, can be a basis for exclusive or accelerated promotion since higher qualification intrinsically brings in certain skills. The factum to determine such nexus left to wisdom of administrative authorities. Grant of accelerated promotion on small percentage of posts, as in this case, thus, valid which could also act as incentive to others to acquire higher qualifications. [State of Uttarakhand v. S.K. Singh, (2019) 10 SCC 49]

Contract Labour (Regulation and Abolition) Act, 1970 — S. 10 — Prohibition of employment of contract labour: In this case, the Notification dt. 8-9-1994 prohibiting employment of contract labour in different categories of work in ONGC, was quashed without impleading either ONGC Labour Union or any other recognised ONGC Union, hence the petition was restored. Since affected contract labourers were denied opportunity of hearing, writ petition directed to be restored for fresh consideration. [ONGC Labour Union v. ONGC, Dehradun, (2019) 10 SCC 67]

Motor Vehicles Act, 1988 — Ch. XIII (Ss. 177 to 210-D) — Provisions for punishment for road traffic and motor vehicle offences: Compatibility of provisions for punishment for road traffic and motor vehicle offences under Ch. XIII (Ss. 177 to 210-D), with related provisions of IPC (Ss. 279, 304 Pt. II, 304-A, 337 and 338), affirmed. It was held, prosecution is maintainable both under MV Act and IPC, which is not barred under S. 26 of General Clauses Act. Offences under Ch. XIII of MV Act cannot abrogate applicability of Ss. 297, 304, 304-A, 337 and 338 IPC. There is no conflict between two statutes as both operate in their own spheres. [State of Arunachal Pradesh v. Ramchandra Rabidas, (2019) 10 SCC 75]

T.N. Property (Prevention of Damage and Loss) Act, 1992 (59 of 1992) — Ss. 7 and 14 — Civil suit for damages — Maintainability of: The T.N. Property (Prevention of Damage and Loss) Act, 1992, along with Rules, provides for award of compensation in two ways: (i) at the end of trial for any offence punishable under Act, or to be paid out of the fine imposed upon accused which is similar to the power of criminal court to award compensation under S. 357 CrPC, (ii) upon an application as envisaged under S. 10, after a summary inquiry as envisaged under the Rules which is somewhat similar to the summary procedure envisaged under Consumer Protection Act, 1986. Further, S. 7 of the Act recognises the possibility of a civil suit being instituted subsequent to criminal proceedings under the Act, relating to the same matter and even the summary remedy of claiming compensation envisaged under S. 10 of the Act r/w the Rules, does not preclude the filing of a suit for damages — Furthermore, S. 14 provides that the Act is in addition to, and not in derogation of, any other law in force for the time being and permits an aggrieved person to approach civil court for relief if he so desires, instead of availing of the remedy envisaged under S. 10 of the Act. [M. Hariharasudhan v. R. Karmegam,(2019) 10 SCC 94]

Environment Law — Water/River/Coastal Pollution — Effluents, Sewage, River and Lake Pollution: Validity of imposition of “sewerage charges” by National Green Tribunal (NGT), on encroachment and dumping of building debris in riverbed/flood plain and natural water body of River Yamuna in Delhi, affirmed. Directions passed for implementation within two months by NCT of Delhi. [Tata Power Delhi Distribution Ltd. v. Manoj Misra, (2019) 10 SCC 104]

Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015 — Ss. 1(3), 3, 2(9)(d), 56 and 86(1): Black Money Act, held, came into force w.e.f 1-4-2016 [i.e. as provided in S. 1(3)] and not retrospectively on 1-7-2015 as provided in Noti. dt. 1-7-2015. Noti. dt. 1-7-2015 providing that Black Money Act, shall come into force on 1-7-2015 i.e. the date on which the order was issued. There will be restricted application of the Notification i.e. only for the purpose of enabling the assessee(s) to take benefit of S. 59. [Union of India v. Gautam Khaitan, (2019) 10 SCC 108]

Armed Forces — Promotion — Entitlement to — Navy Order (Spl.) 02/2009 — Cl. 65 — Retrospective application of the Navy Order (Spl.) 02/2009 — Permissibility: In this case it was held that though Navy Order (Spl.) 02/2009 should not have been made applicable for confidential report initiated prior to 1-1-2010, but no prejudice was caused to appellant by applying said order. The violation of every provision does not furnish ground for interference unless prejudice caused. Besides, no benefit would accrue to appellant even if CRs of 2006 and 2009 were taken into consideration since she could not have been promoted due to her comparative merit i.e. she was ranked 17th on 4-11-2009 (Chance I) and 10th on 4-2-2011 (Chance II). [Surgeon Rear Admiral Manisha Jaiprakash v. Union of India, (2019) 10 SCC 115]

Education Law — Employment and Service Matters re Educational Institutions — Appointment/Recruitment — Reservation of Seats/Quota/Exemption/Relaxation/Priority and Affirmative Action: In this case, under recruitment of Special Education Teachers under Government of NCT of Delhi, respondents obtained CTET qualification under relaxed pass norms for OBC category in States other than Delhi and eligibility for appointment was under Government of NCT of Delhi against OBC category. The Supreme Court held that since respondents did not possess OBC (Delhi) certificate they cannot be considered for recruitment against OBC category vacancies in Government of NCT of Delhi. Further held, they cannot be allowed to migrate and compete for open category vacancies since they had secured CTET qualification with relaxation of pass marks meant for OBC category. They can compete against unreserved vacancies provided they pass CTET with minimum qualifying marks stipulated for unreserved category candidates. Besides, OMS dt. 1-7-1998 and 4-4-2018 specifically stated that when relaxed standard was applied in selecting reserved category candidate, such candidates would be considered only against reserved vacancies. Moreover, concession in pass marks in qualifying exam would have direct impact on standards of competence and merit in recruitment of Special Education Teachers. It was emphasised that principles of reservation under the Constitution are intended to be confined to specifically earmarked category and unreserved category must be protected to avoid dilution of competence and merit. [State (NCT of Delhi) v. Pradeep Kumar, (2019) 10 SCC 120]

Service Law — Police — Central Armed Police Forces (CAPFs) — Grant of status of organised Group A Central Services to Central Armed Police Forces (CAPFs) — Rights of IPS officers for deputation to CAPF — Effect on: In this case clarification of Supreme Court order dt. 5-2-2019, Union of India v. Sri Harananda, (2019) 14 SCC 126, was prayed. The said prayer was rejected and the Supreme Court held that the rights of IPS officers for deputation in CAPF was not in issue before Supreme Court while rendering said judgment. Besides, in para 26 of the judgment it was specifically stated that by granting status of Organised Group A Central Services to CAPF, rights of IPS officers, if any, for their appointment on deputation to CAPF would remain unaffected. Hence, no further clarification was required. [Union of India v. Harananda, (2019) 10 SCC 129]

Education Law — Employment and Service Matters re Educational Institutions: While determining the issue of entitlement to regularisation/confirmation/absorption, there must be primacy of opinion of State Government regarding rendering of qualifying service. [Kisan Inter College v. State of U.P., (2019) 10 SCC 131]

Civil Procedure Code, 1908 — Or. 21 Rr. 35(3) and 25: The use of police force for delivery of possession without specific orders of court is not permissible. [Om Parkash v. Amar Singh, (2019) 10 SCC 136]

Stamp Act, 1899 — S. 35 — Impounding of agreement to sell for non-payment of stamp duty, after sale deed based thereon, on which entire stamp duty had been paid, stood cancelled by order of court — When inequitable: In this case, said sale deed had been cancelled by court as material facts had been concealed from court by vendor in suit for specific performance of said agreement to sell, in which vendee had succeeded, which had led to execution of the sale deed which was subsequently cancelled. Vendee’s bona fides were not in doubt at any time, sale deed stood cancelled due to no fault of vendee, and no attempt was made by vendee to obtain refund of stamp duty at any stage. It was held that in such circumstances, it would be highly inequitable to impound agreement to sell. Suit for specific performance of said agreement to sell which had been restored for trial afresh with a connected suit could proceed further in accordance with law. It was further held that finding has been affirmed that appellant-plaintiff entitled for refund of Rs 1,85,000 paid towards stamp duty. Appellant-plaintiff had always shown his bona fides. Once such finding has been affirmed, it is not open for respondent-defendants to raise plea that agreement to sell should be impounded. [Terai Tea Co. Ltd. v. Kumkum Mittal, (2019) 10 SCC 142]

Companies Act, 1956 — S. 535 — Restoration of possession/exclusion of properties from winding up — Locus standi/Standing to challenge: Mortgagee of the leasehold/lessee’s interest does not have the locus standi to challenge restoration of possession of leased property in which lessee had mortgaged its interest (onerous property qua S. 535), to lessor pursuant to forfeiture of lease by lessor, in the absence of challenge by the mortgagor. [Stressed Assests Stabilization Fund v. W.B. Small Ind. Dev. Corpn. Ltd., (2019) 10 SCC 148]

Forest (Conservation) Act, 1980 — S. 2 — “Forest” — Determination of whether land in question is forest land — Matters to be considered: For determination of whether land in question is forest land, due weight has to be given to revenue records, especially those pertaining to a period when the dispute regarding the land being forest land did not exist. [Chandra Prakash Budakoti v. Union of India, (2019) 10 SCC 154]

Cases Reported Supreme Court Cases

2019 SCC Vol. 9 November 21, 2019 Part 5

Arbitration and Conciliation Act, 1996 — Ss. 34 and 37 — Award — Non-interference with, when findings of fact arrived at by arbitrators are on basis of evidence on record and not perverse — Concurrent view of courts below in proceedings under Ss. 34 and 37 — Effect of: In this case, Arbitral Tribunal arrived at finding that termination of contract by State was illegal and without following due procedure as required under contract and partly allowed claims of claimants while dismissing counterclaims of State. The Supreme Court held that findings were on appreciation of evidence considering relevant provisions and material on record as well as on interpretation of relevant provisions of the contract, which were neither perverse nor contrary to evidence on record. Further, cogent reasons had been given by Arbitral Tribunal qua respective claims. Thus, held, award was not required to be interfered with, particularly, when in the proceedings under Ss. 34 and 37 of Arbitration Act, petitioners had failed. [State of Jharkhand v. HSS Integrated SDN, (2019) 9 SCC 798]

Criminal Law — Criminal Trial — Medical Jurisprudence/Evidence — Asphyxia/Throttling/Strangulation/Hanging — Cause of death — Whether suicidal or homicide: In this case, medical opinion was that cause of death was asphyxia due to strangulation, and it was the prosecution case that deceased had been strangled and then his body had been hanged from ceiling fan. The surrounding factors were that feet of hanging dead body were touching the floor; knees were bent; slippers were not removed; and room in question was wide open. As alleged by accused, as per medical jurisprudence, scratches, abrasions, bruises, etc. are usually present and hyoid bone would be usually found broken in case of strangulation but, in the present case, there being no such marks nor hyoid bone was broken, hence, it was not a case of strangulation. The Supreme Court held that there was no infirmity in findings of courts below that it was a case of strangulation, as could be seen from post-mortem report that dead body carried “well-defined depressed ligature mark measuring 3 cm wide seen encircling the neck around thyroid cartilage with a knot present on left side of neck and this ligature mark was ante-mortem in nature”. Other ligature mark on the neck was 1.5 cm wide and that was post-mortem in nature. The board had undoubtedly been of the opinion that cause of death was “asphyxia due to strangulation”. With such categorical medical opinion coupled with all relevant features surrounding suspended dead body in the room in question, it is difficult to say that it had been a case of suicide merely because hyoid bone was not broken or because marks of resistance like abrasions/scratches were not reported. Presence of marks of resistance would depend on a variety of factors, including the method and manner of execution of the act of strangulation by culprits; and mere want of such marks cannot be decisive of the matter. Equally, it is not laid down as an absolute rule in medical jurisprudence that in all cases of strangulation, hyoid bone would invariably be fractured. On the contrary, medical jurisprudence suggests that only in a fraction of such cases, a fracture of hyoid bone is found. In other words, absence of fracture of hyoid bone would not lead to conclusion that deceased did not die of strangulation. Hence, deceased was done to death by strangulation and thereafter, his dead body was hanged from ceiling fan in the room. [Gargi v. State of Haryana, (2019) 9 SCC 738]

Criminal Procedure Code, 1973 — S. 319: The principles for exercise of power under the section, summarized. It was also held that the issuance of summons under S. 319 in absence of prima facie case of the standard as laid down in Hardeep Singh, (2014) 3 SCC 92, not permissible. [Mani Pushpak Joshi v. State of Uttarakhand, (2019) 9 SCC 805]

Insolvency and Bankruptcy Code, 2016 — S. 238 r/w S. 9 — Prior consent of the Central Government as provided under S. 16-G(1)(c) of Tea Act qua winding up/liquidation proceedings — Non-requirement of, for initiation of proceedings under S. 9 IBC: Provisions of IBC, held, have overriding effect over Tea Act, 1953 S. 16-G(1)(c) refers to consent qua proceeding for winding up of company or for appointment of receiver while proceedings under S. 9 IBC are not be limited and/or restricted to winding up and/or appointment of receiver only and the winding up/liquidation of company is to be last resort and only on an eventuality when corporate insolvency resolution process fails. Further, primary focus of legislation while enacting IBC is to ensure revival and continuation of corporate debtor by protecting corporate debtor from its own management and from a corporate debt by liquidation and such corporate insolvency resolution process is to be completed in a time-bound manner. Therefore, entire “corporate insolvency resolution process” as such cannot be equated with “winding-up proceedings”. Further, S. 238 IBC, which is a subsequent Act to Tea Act, 1953, is applicable and the provisions of IBC shall have an overriding effect over Tea Act, 1953. Thus, held, that no prior consent of Central Government before initiation of the proceedings under S. 7 or S. 9 IBC would be required and even without such consent of Central Government, the insolvency proceedings under S. 7 or S. 9 IBC initiated by operational creditor shall be maintainable. [Duncans Industries Ltd. v. AJ Agrochem, (2019) 9 SCC 725]

Penal Code, 1860 — Ss. 302, 376, 376-A and 201 — Death sentence — Cases involving rape and murder of minors/children but based on circumstantial evidence: Death sentence, held, can be awarded in appropriate cases. The act that case is based on circumstantial evidence cannot by itself be a ground for not awarding death sentence. Victims owing to their tender age can put up no resistance. Thus, it is likely that there would be no ocular evidence. Not awarding death sentence for lack of ocular evidence even if case proved beyond reasonable doubt, and if case satisfies all requirements for award of death sentence, is not a correct approach. Such reasoning, if applied uniformly and mechanically will have devastating effects on society which is dominant stakeholder in the administration of our criminal justice system. [Ravishankar v. State of M.P., (2019) 9 SCC 689]

Punjab State Agricultural Marketing Board (Sale and Transfer of Plots) Rules, 1999 (as first amended in 2008) — Rr. 3(iii), 3(iii-a) and 3(iv): The imposition of conditions for allotment of shop/plots therein, held, not ultra vires the Constitution. The view that licence is mandatory to carry out business in agricultural market, emphasised. Gap of more than 3 months in expiry of old licence and issuance of new licence cannot be condoned by Market Committee or Market Board unless satisfactory explanation offered by dealer that reasons were beyond his control; then even though he may not be in strict compliance with the Rules, power of relaxation must be read into Rules. [Walaiti Ram Charan Dass v. State of Punjab, (2019) 9 SCC 779]

Service Law — Policy/Policy decision/Policy matter — Rehabilitation policy: Assurance to reserve 25% of future daily wage employment vacancies which would arise in respondent State Corporation for displaced abkari workers who were members of the Abkari Workers Welfare Fund Board and whose services were terminated due to the ban of arrack in the State, held, did not create a vested right of re-employment. [Kerala State Beverages (M&M) Corpn. Ltd. v. P.P. Suresh, (2019) 9 SCC 710]

Terrorist and Disruptive Activities (Prevention) Act, 1987 — S. 20-A(1) — Applicability when offences are under TADA as well as other statutes — Scope of: Whether police may record information and start investigation as to other offences without waiting to record information in respect of TADA offences, held, depends upon facts of each case. If offences under other Acts are serious like murder, rape, smuggling, NDPS Act, POCSO Act offence(s), etc., investigation cannot be delayed only because TADA Act is involved but if offence(s) under other statutes are of the nature of an ancillary offence, then information cannot be recorded without complying with S. 20-A(1) of TADA. [Ebha Arjun Jadeja v. State of Gujarat, (2019) 9 SCC 789]

Cases Reported Supreme Court Cases

2019 SCC Vol. 9 November 14, 2019 Part 4

Penal Code, 1860 — S. 302 or S. 304 Pt. I [S. 300 Thirdly] — Murder or culpable homicide — Injury if sufficient in ordinary course of nature to cause death — Medical evidence: In this case, there were inconsistencies regarding whether head injury (the fatal injury) was inflicted by accused. The deceased died next day of the incident. Giving benefit of doubt to accused, regarding sufficiency of injury to cause death in ordinary course of nature, conviction was altered from S. 302 IPC to S. 304 Pt. I IPC. [Satish Kumar v. State of Haryana, (2019) 9 SCC 529]

Civil Procedure Code, 1908 — Or. 22 R. 10 or Or. 1 R. 10 — Impleadment of transferee/assignee of rights and interest in suit property challenging sale of suit property to another, as plaintiff — Entitlement to: In this case, suit was filed by landowner against his power-of-attorney holder and appellants, challenging sale of land by former in favour of latter on ground that former had not been conferred power to sell. R-1 purchased suit land from plaintiff owner by execution of registered sale deed. After death of original plaintiff, R-1 filed application under Or. 1 R. 10 for impleading himself as plaintiff 2 in suit pending in trial court, alleging that LRs of original plaintiff i.e. R-2 (A to D) were trying to occupy suit land in collusion with appellants. Thereafter, LRs of original plaintiff executed registered declaration deed in favour of appellants confirming sale deed in their favour. Subsequently, pursuant to a settlement between LRs of original plaintiff and appellants, LRs filed memo/application (pursis) for unconditional withdrawal of suit. The Supreme Court held that R-1 as assignee of rights and interest of original plaintiff and having vital interest in suit, was entitled to be impleaded in suit under Or. 22 R. 10, instead of Or. 1 R. 10. Mentioning of incorrect provision no impediment when court has power to pass appropriate order. [Pruthvirajsinh Nodhubha Jadeja v. Jayeshkumar Chhakaddas Shah, (2019) 9 SCC 533]

Constitution of India — Art. 227 — Maintainability — Alternative remedy/Exhaustion of remedies: Availability of remedy under CPC in cases of suits/proceedings before civil courts is near total bar to exercise of supervisory jurisdiction under Art. 227. [Virudhunagar Hindu Nadargal Dharma Paribalana Sabai v. Tuticorin Educational Society, (2019) 9 SCC 538]

Rent Control and Eviction — Eviction Suit/Trial: In this case repeated adjournments were taken by respondent tenant. The prescribed authority passed ex parte order of eviction against respondent tenant. Time-bound expeditious disposal of the order was directed by the Court. [Krishna Devi Maheshwari v. Surendra Surekha, (2019) 9 SCC 547]

Penal Code, 1860 — Ss. 302/149, 323/149 and 147 — Murder — Eyewitness: In this case injury report of the related injured witnesses was absent. It was held that the infirmities which were pointed out were at best defects in investigation and did not raise doubts about credibility of related injured witnesses or the prosecution case as a whole, hence, conviction was confirmed. [Fainul Khan v. State Of Jharkhand, (2019) 9 SCC 549]

Service Law — Appointment — Compassionate appointment: In terms of Regn. 4(3) of the Rajasthan State Road Transport Corporation Compassionate Appointment Regulations, 2010 claim for both compassionate appointment and compensation cannot be made against appellant SRTC in case of death of employee occurring while travelling in vehicle of appellant Corporation. The dependants of employee who claim both compensation under MV Act and compassionate appointment from appellant-Corporation are not on same footing as dependants of deceased employee who claim under MV Act against private owner or insurance company, and compassionate appointment from appellant-Corporation, thus forming a separate class. Art. 14 forbids class legislation but does not forbid reasonable classification for purpose of legislation. Besides, intention of Regn. 4(3) is to obviate liability of Corporation from payment of compensation under Act and to provide compassionate appointment to same person. Thus, there is rational nexus between basis of classification and object sought to be achieved. Hence, Regn. 4(3) is valid. [Rajasthan SRTC v. Danish Khan, (2019) 9 SCC 558]

Customs Act, 1962 — Ss. 130-E and 130 — Appeal before Supreme Court — When maintainable: Appeal qua violation of conditions of exemption notification by assessee is maintainable only before High Court. Upon a conjoint reading of Ss. 130 and 130-E, it can be seen that an appeal shall lie to High Court against every order passed in appeal by the Appellate Tribunal, if the High Court is satisfied that the case involves a substantial question of law. An appeal is maintainable before Supreme Court only if any question having relation to the rate of duty is involved or if it relates to value of goods for the purpose of assessment. [Commr. of Customs v. Motorola (India) Ltd., (2019) 9 SCC 563]

Town Planning — Colonisation/Development Project: In this case, there were hindrances in completion/full implementation of colonisation scheme due to negligence of coloniser in paying licence fee as required under scheme, and various other disputes between allottees and colonizer. Arbitrator designated as Court-Appointed Committee and clarifications and directions issued for full implementation of the scheme. It was clarified that arbitrator appointed by Court shall function as a Court-Appointed Committee and not as an arbitrator appointed under Arbitration and Conciliation Act, 1996. [Okhla Enclave Plot Holders’ Welfare Assn. v. Union of (India), (2019) 9 SCC 572]

Penal Code, 1860 — Ss. 498-A, 114 and 323: In this case, cruelty and physical assault of deceased was alleged against father-in-law, appellant (A-1) and brother-in-law (A-3), and cruelty alone against sister-in-law and mother-in-law (A-4 and A-5). All relatives of husband other than appellant father-in-law were acquitted. It was held that evidence against father-in-law is also not sufficient to uphold his conviction alone, hence, he was acquitted. [Kantilal v. State of Gujarat, (2019) 9 SCC 603]

Negotiable Instruments Act, 1881 — S. 138 — Dishonour of cheque — Death of convicted accused — Liability of legal heirs in such case, if any: Legal heirs, in such case, are neither liable to pay fine nor to undergo imprisonment. However, they have right to challenge conviction of their predecessor, only for the purpose, that he was not guilty of any offence. [M. Abbas Haji v. T.N. Channakeshava, (2019) 9 SCC 606]

Penal Code, 1860 — S. 375 & Expln. 2 thereunder and S. 90 — Meaning of “consent” with respect to S. 375: “Consent” with respect to S. 375 involves an active understanding of circumstances, actions and consequences of proposed act. Individual who makes a reasoned choice to act after evaluating various alternative actions (or inaction) as well as various possible consequences flowing from such action or inaction, consents to such action. Where a woman does not “consent” to sexual acts described in main body of S. 375, offence of rape has occurred. While S. 90 IPC does not define term “consent”, “consent” based on a “misconception of fact” is not consent in the eye of law. Thus, in case of woman engaging in sexual relations on false promise to marriage, her “consent” is based on “misconception of fact”, and such sexual act(s) will amount to rape. [Pramod Suryabhan Pawar v. State Of Maharashtra, (2019) 9 SCC 608]

Criminal Trial — Sentence — Death sentence — Parliament as repository of will of the people: Legislature has distanced itself from propounders of “No-Death Sentence” in “No Circumstances” theory as recently in 2019. Significantly, by 2019 Amendment of S. 6, POCSO Act, 2012, death sentence has been introduced as a penalty for offence of aggravated penetrative sexual assault on a child below 12 yrs. If Parliament, armed with adequate facts and figures, has decided to introduce capital punishment for the offence of sexual abuse of a child, in 2019, the court hitherto will bear in mind the latest Legislative Policy even though it has no applicability in a case where the offence was committed prior thereto. Judicial precedents rendered before this recent amendment of 2019 came into force, therefore, ought to be viewed with a purposive approach so that the legislative and judicial approaches are well harmonised. [Ravi v. State of Maharashtra, (2019) 9 SCC 622]

Armed Forces — Disability Pension — Requirements for entitlement to — Absence of disability or disease noted at time of enrolment: There can be no mechanical application of principle that any disorder not mentioned at time of enrolment is presumed to be attributed or aggravated by military service. Question is whether because of being posted in harsh and adverse conditions, military personnel suffered disability. Further held, Entitlement Rules for Casualty Pensioners Awards, 1982, themselves provide that certain diseases ordinarily escape detection at time of physical examination which have intervals of normalcy unless adequate history is given. Hence, mere fact that schizophrenia was not detected at time of enrolment would not lead to presumption that disease was aggravated or attributable to military service. Each case has to be decided on its own merit on parameters whether duties assigned to individual led to stress and strain leading to psychosis and psychoneurosis. [Narsingh Yadav v. Union of India, (2019) 9 SCC 667]

Penal Code, 1860 — Ss. 403, 406, 420 and 506-B — Cheating — Breach of trust: Where there exists a fraudulent and dishonest intention at time of commission of offence, as appeared to be the case in this case, accused having agreed to sell lands to victim, which had been sold prior to agreement between accused and victim, etc., law permits victim to proceed against wrongdoer for having committed an offence of criminal breach of trust or cheating. [Lakshman v. State Of Karnataka, (2019) 9 SCC 677]

Penal Code, 1860 — Ss. 302/149 and 148 — Murder: In this case, eyewitness account was belied by medical evidence. There was unnatural conduct of related eyewitnesses and evidence linking recovered firearms and vehicle allegedly used in offence, to accused was also absent. Hence, reversal of conviction, confirmed. [Prem Singh v. Sukhdev Singh, (2019) 9 SCC 683]

National Highways Act, 1956 — Ss. 3-G(5) & (6) — Compensation — Determination of: Madishetti Bala Ramul, (2007) 9 SCC 650 is not applicable to matters governed by NH Act, 1956. If amount determined by competent authority under the 1956 Act is not acceptable to either party, they may apply to Central Government to appoint arbitrator to determine the same. [Union of India v. Balwant Singh, (2019) 9 SCC 687]

Cases Reported Supreme Court Cases

2019 SCC Vol. 8 November 7, 2019 Part 3

Property Law — Adverse Possession — Meaning, nature and ingredients of, reiterated — Necessary factors to be proved for claim of adverse possession: Person pleading adverse possession has no equities in his favour as he is trying to defeat rights of true owner, hence, it is for him to clearly plead and establish all facts necessary to establish adverse possession. [Brijesh Kumar v. Shardabai, (2019) 9 SCC 369]

Armed Forces — Pension — Entitlement to in promotional time-scale in supersession of Army order: In this case, appellant who was granted pension as Major on being granted substantive rank of Lieutenant Colonel sought revision of pension applicable to that post. He fell short of 30 days for completing reckonable service of 21 yrs for grant of pension as Lieutenant Colonel in terms of Army Order dt. 20-3-1990. Name of appellant figured in list whereby competent authority vide Order dt. 15-10-1991 approved promotion of officers to substantive rank of Lieutenant Colonel by time-scale. Hence, it was held that appellant was entitled to pension of Lieutenant Colonel (TS). Reliance placed on Army Order dt. 20-3-1990 was of no avail in view of Order dt. 15-10-1991. Further costs amounting to Rs 50,000 was also imposed for exposing appellant to avoidable litigation considering that he retired in the year 1991 and was made to run from pillar to post for getting his rightful pension. [Bobby Joseph v. Union of India, (2019) 9 SCC 375]

Service Law — Pension — Cut-off date/point — Cut-off date for exercising option for pension — Extension of — Whether permissible: Ordinarily option should be exercised within last date of prescribed cut-off. However, in this case, considering long period of service rendered by respondent and keeping in view exceptional circumstance i.e. respondent was abroad during relevant time and returned only after cut-off date, it was held that no interference with impugned judgment directing appellant Bank to accept respondent’s option after cut-off date was called for. It was clarified that said direction was issued in exceptional circumstance and was not to be treated as precedent. Respondent was directed to return PF contribution already paid to him with interest @ 6% p.a. from date of VRS i.e. 16-1-2001 till cut-off date i.e. 25-10-2010. It was further clarified that respondent entitled to pension only from date of order of Single Judge i.e. 4-9-2015 and no interest on said amount could be claimed. [Oriental Bank of Commerce v. Janak Raj Sharma, (2019) 9 SCC 378]

Specific Relief Act, 1963 — Ss. 16(c) and 28 — Specific performance of agreement — Grant of — Readiness and willingness — Principles summarized: Readiness is capacity for discharge of obligations with regard to payment. Plaintiff must demonstrate readiness and willingness throughout to perform his obligations. For ascertaining readiness and willingness, conduct of parties must be determined having regard to entire attending circumstances of each case. Bare averment in plaint or statement made in examination-in-chief is not sufficient. Conduct of plaintiff must be judged having regard to entirety of pleadings and evidence brought on record. Failure to deposit within time fixed by court is indicative of incapacity of plaintiff to perform his obligations. Time can be extended to deposit balance consideration but mere extension of time to deposit does not absolve plaintiff of his obligation to demonstrate readiness and willingness coupled with special circumstances beyond his control to seek extension. For seeking extension of time for deposit of balance consideration sufficient, substantial and cogent grounds must be pleaded. Otherwise, it becomes question of his conduct along with all other attendant surrounding circumstances in facts of case. Merely because suit is filed within prescribed period of limitation does not absolve plaintiff from showing as to whether he was ready and willing to perform his part of agreement. If there was non-performance, the question would be whether that obstacle was put by seller or otherwise. The provisions to grant specific performance are quite stringent. Equitable considerations come into play. Court has to see all attendant circumstances including if plaintiff conducted himself in reasonable manner under agreement. [Ravi Setia v. Madan Lal, (2019) 9 SCC 381]

Penal Code, 1860 — S. 302 — Death sentence — Imposition of, in cases based on circumstantial evidence — Law summarized: In cases based on circumstantial evidence, though concept of residual doubt is not given much importance in Indian capital sentencing, Court has stressed on higher quality of evidence for imposition of death sentence in a number of cases, and has applied doctrine of prudence for this, which only reflects the principle laid down in Bachan Singh, (1980) 2 SCC 684, that is, while awarding death sentence, alternative option i.e. imposition of life imprisonment must be unquestionably foreclosed — Irrevocable punishment of death must only be imposed when there is no other alternative, and in cases resting on circumstantial evidence, the doctrine of prudence should be invoked. This case involving murder of four children aged 10 months to 10 yrs and wife, by strangulation and throwing them in village pond, is a case based on circumstantial evidence. Imposition of life imprisonment in present case was not unquestionably foreclosed and there was a reasonable probability that death sentence could have been set aside if errors apparent on face of record would not have occurred. However, reports indicated that conduct of petitioner in jail was unsatisfactory and he was a menace to society, thus, life imprisonment simpliciter, inadequate. Death sentence commuted to life imprisonment for entire life without remission. [Sudam v. State of Maharashtra, (2019) 9 SCC 388]

Criminal Law — Criminal Trial — Sentence — Death sentence — Review petition against death sentence: In this case reopening of review petition after dismissal of curative petition, permitted, in view of law laid down and liberty granted in Mohd. Arif, (2014) 9 SCC 737. [Mohd. Arif v. Supreme Court of India, (2019) 9 SCC 404]

Hindu Marriage Act, 1955 — Ss. 13 and 13-B — Divorce — Irretrievable breakdown of marriage — Exercise of power by Supreme Court under Art. 142 of the Constitution, to dissolve marriage in such cases: There is no necessity of consent by both parties, for exercise of powers under Art. 142 of the Constitution to dissolve marriage on ground of irretrievable breakdown of marriage. Where neither grounds specified under S. 13 for divorce established nor mutual consent between parties as per S. 13-B exists (wife being unwilling for divorce in this case) and all efforts to save marriage failed, Supreme Court, considering facts and circumstances of the case on being satisfied that marriage has irretrievably broken down, can dissolve such marital relationship which is already dead, with a view to do complete justice between parties in exercise of power under Art. 142 of the Constitution. [R. Srinivas Kumar v. R. Shametha, (2019) 9 SCC 409]

Land Acquisition Act, 1894 — Ss. 11, 12 and 13-A — Review of award after it attained finality — Impermissibility of — Review — When permissible — Principles summarized: There is no provision under LA Act, 1894 for review of award once passed under S. 11, and which has attained finality. S. 13-A is not provision for review of award. It is only for correction of clerical or arithmetical mistakes in award. As per S. 13-A(1), such corrections can be made any time, but not later than six months from date of award. Review is not inherent power. It can be exercised only when statute provides for the same expressly/ specifically or by necessary implication. In absence of any such provision in statute concerned, power of review cannot be exercised in case of judicial/quasi-judicial orders. Exercise of power of review in absence of express provision would be ultra vires, illegal and without jurisdiction. [Naresh Kumar v. State (NCT of Delhi), (2019) 9 SCC 416]

Penal Code, 1860 — Ss. 120-B, 467 and 467 r/w Ss. 471, 420 and 477-A: To prove conspiracy to obtain loan against pledge of jewels, without actually pledging any jewel(s), it is required to establish dishonest intention on the part of appellant loanees. It was held that there was no evidence on record that appellant loanees MR and NR were ever aware that loan in question i.e. agricultural jewel loan could be sanctioned only after jewels were pledged. There was no evidence in respect of dishonesty/misuse in obtaining the loan without furnishing any security, hence, conviction of appellant loanees MR and NR, set aside. However, conviction of Branch Manager, A-1, who had illegally sanctioned the said loans without pledging of any jewels, confirmed. [M. Ramalingam v. State, (2019) 9 SCC 421]

Prevention of Food Adulteration Act, 1954 — Ss. 2(i-a), 13 and 16 — Marginal deviation from prescribed standards — Acquittal based thereon — Impermissibility of — Strict adherence with prescribed standards: Food article failing to comply with standards but not injurious to health needs to be treated as adulterated food. In this case conviction for milk adulteration with marginal deviation, confirmed. Further held that minimum sentence prescribed by statute cannot be commuted by exercise of power under Art. 142 of the Constitution or otherwise. It was held that once standards are laid down by legislature then those standards have to be followed. In items like milk which is primary food under Act, it is not necessary to also prove that food item became unfit for human consumption or injurious to health. In cases of food coming under Act, it is not required to prove that food article was injurious to health. Where food article fails to comply with standards then it has to be treated as adulterated article even if it is not rendered injurious to health. Act does not make distinction between cases coming under it on basis of degree of adulteration. It does not provide for aggravation of offence based on extent of contamination. Offence and punishment are same whether adulteration is great or small. Food pollution, even if it be only to slightest extent if continued in practice, would adversely affect health of every man, woman and child. Hence, even marginal or border line variation of prescribed standards under Act is matters of serious concern for all. Act does not provide for exemption of marginal or border line variations of standard from operation of Act. In such circumstances to condone such variations on ground that they are negligible is virtually to alter standard itself fixed under Act. When standard has been fixed under Act for food article, it has to be observed in every detail. If standards are not complied with court not justified in acquitting accused only on ground that deficiency is marginal. [Raj Kumar v. State of U.P., (2019) 9 SCC 427]

Arbitration and Conciliation Act, 1996 — Ss. 34(3) and 37: S. 14 of Limitation Act is applicable to application submitted under S. 34 of 1996 Act seeking exclusion of certain period, if application under S. 34 of 1996 Act is at the first instance filed within limitation period provided under S. 34(3). However, S. 5 of Limitation Act is not applicable to condone delay beyond the statutory period under S. 34(3) of 1996 Act. [Oriental Insurance Co. Ltd. v. Tejparas Associates & Exports (P) Ltd., (2019) 9 SCC 435]

Education Law — Employment and Service Matters re Educational Institutions — Termination/Removal/Dismissal — Termination of Service — Judicial Review/Interference by Court/Validity: In this case there was prayer for condoning delay of 2 yrs, 10 months and 14 days in challenging oral order of termination dt. 30-11-2013. As appellant was in repeated correspondence with respondent Institution between 30-11-2013 and 4-11-2016, delay was held liable to be condoned. [Balkrishna Waman Zambare v. Siddheshwar Shikshan Sanstha, (2019) 9 SCC 446]

Education Law — Reservation of Seats/Quota/Exemption/Priority/Affirmative Action/Reverse Discrimination — Judicial review/validity/Relief — Abuse of process/fraud on court: In this case, the prayer for redoing entire admission process of MBBS under Sports quota, was rejected as appellants approached Court belatedly, had not challenged provisional admissions even though opportunity therefor was given and suppressed material facts that all students including appellant, R-1 and R-5 had secured admissions in various medical colleges. Further, appellant had not impleaded necessary parties in writ petition before Singe Judge on which ground alone his writ petition before High Court should have been rejected. Though appellant was not issued any notice and was not heard before Division Bench which reversed decision of Single Judge of High Court. Further, amongst candidates of Sports quota, appellant had secured lowest marks. As entire case of appellant was an afterthought and wholly based on speculation, appeals were dismissed. Interim order, which had been obtained by appellant by suppressing material facts, vacated and order of Division Bench was affirmed. [Jyothir R. v. Sunisha N.S., (2019) 9 SCC 449]

Factories Act, 1948 — Ss. 37, 38 and 92 — Violation of — Relief: In this case, the Supreme Court itself imposed a sentence at pre-trial stage where accused pleaded guilty considering peculiarity of facts and exceptional circumstances. However, it was clarified that this decision would not serve as a precedent. [Subir Bose v. Inspector of Factories, (2019) 9 SCC 454]

Constitution of India — Art. 30 — Minority institutions: Minority institutions were permitted to fill up 85% of their total seats, with students belonging to minority community, as management quota by G.O. of State Government. Validity of steps by State Government (vide impugned government orders) to combat admissions on basis of false conversions and to tackle problem of vacant seats in minority institutions on basis of statistical data, affirmed. [Andhra Kesari College of Education v. State of A.P., (2019) 9 SCC 457]

Arbitration and Conciliation Act, 1996 — Ss. 34, 34(5) and (6) (as added w.e.f. 23-10-2015) — Proceedings under S. 34: Proceedings under S. 34 are summary in nature and limited in scope. Effect of insertion of Ss. 34(5) and (6), following Emkay Global, (2018) 9 SCC 49, held, is that permission to file affidavit by way of evidence and cross-examination of witnesses, is grantable only when absolutely necessary, in exceptional cases, and not as a matter of course. Ruling in Fiza Developers, (2009) 17 SCC 796, thus, stands limited to that extent. R. 4(b) of the Karnataka High Court Arbitration Rules, 2001, providing for application of Civil Procedure Code to arbitration proceedings, does not tantamount to wholesale or automatic import of all the provisions of Civil Procedure Code into the proceedings under S. 34. [Canara Nidhi Ltd. v. M. Shashikala, (2019) 9 SCC 462]

Civil Procedure Code, 1908 — Or. 34 Rr. 1, 7 & 8, Or. 1 Rr. 3 & 4 and Ss. 96 and 100 — Redemption decree — Locus standi/Standing to challenge: Tenant/Lessee of mortgagor/mortgagee, held, does not have locus standi/standing to challenge redemption decree. Tenants, held, remain tenants whoever be the landlord/owner. Appeal by tenant against judgment of trial court decreeing suit for recovery of possession/redemption of mortgage filed by plaintiff owner against mortgagee is not maintainable in absence of challenge to same by mortgagee himself of whom they claimed to be tenants. [Mohan Chandra Tamta v. Ali Ahmad, (2019) 9 SCC 471]

Civil Procedure Code, 1908 — S. 100 — Findings of fact — Interference with, in second appeal: For interference with Findings of fact in second appeal, it is necessary to consider matter in detail and materials on record by second appellate court. [Murtaza Jahan v. Mohan Chandra Tamta, (2019) 9 SCC 475]

Rent Control and Eviction — Arrears of Rent/Default/Tender of Rent/Striking off Defence — Striking off defence: Power vested under S. 15(7) of the Delhi Rent Control Act, 1958, is discretionary and not mandatory and depends on contumacious or deliberate default and must be construed harmoniously so as to balance rights and obligations of tenant and landlord and power under S. 15(7) of DRC Act, 1958 being an exception to be exercised with due care and circumspection.[ Dina Nath v. Subhash Chand Saini, (2019) 9 SCC 477]

Property Law — Adverse Possession: Plaintiff, reiterated, can claim title based on adverse possession. Law laid down by three-Judge Bench in Ravinder Kaur Grewal, (2019) 8 SCC 729, summarised and followed. Further held, dispossession of plaintiff seeking to establish acquisition of title based on adverse possession, subsequent to filing of suit therefor has no bearing. [Krishnamurthy S. Setlur v. O.V. Narasimha Setty, (2019) 9 SCC 488]

Trusts and Trustees — Religious and Charitable Endowments and Trusts — Archaka or Pujari: Archaka is obliged to protect property of temple as guardian of deity, who is deemed in law to be a minor, and initiate proceedings in that regard when required but he cannot usurp such property for his own gains. [Sri Ganapathi Dev Temple Trust v. Balakrishna Bhat, (2019) 9 SCC 495]

Constitution of India — Arts. 226 and 227 — Exercise of power — Interference on ground of violation of principles of natural justice: In this case, petroleum products dealership of the respondent was terminated and the High Court itself issued directions instead of remanding matter to authorities concerned to provide opportunity of hearing and decide matter afresh in accordance with law but as respondent did not want to continue dealership, held, it was entitled to refund of security amount of Rs 7,05,746 within period of six weeks. Appellant was directed to remove all its equipments from premise of respondent. However, no interest was awarded on security deposit. [Indian Oil Corpn. v. Lala Bhairo Prasad Saraf & Sons, (2019) 9 SCC 505]

Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 — S. 2-A (inserted by Act 46 of 1960 w.e.f. 31-12-1960), Ss. 16(1)(d) and 7-A — Claim for exemption: In this case, there was denial of exemption on ground that the three establishments viz. (i) BCCL, Jaipur (ii) TPHL, Jaipur and (iii) SVPL, Jaipur were part of same establishment i.e. BCCL, Mumbai. BCCL, Jaipur is not a separate entity but part of parent Company BCCL, Mumbai directly. It was held that mere location of departments and branches in different cities inconsequential, hence, no exemption can be granted to BCCL, Jaipur. Further held, as far as TPHL, Jaipur and SVPL, Jaipur are concerned applicable test for determining one establishment would be functional integrality or general unity of purpose and not test of unity of ownership, management and control. Further, business model of outsourcing not being prevalent in relevant period said principle inapplicable for testing nature of linkage. Moreover nature of agreement provided that said units would make available both space and staff for benefit of BCCL, Mumbai and expenses of establishment were also to be borne by them. Beside BCCL, Mumbai was issuing orders on their letter pads. Fact that there was no commonality of Directors, shareholders, no financial unity, separate balance sheets as well as profit and loss accounts, independent employees with no transfer inter se, is inconsequential. Said three establishments were effectively part of same parent Company and cannot be granted exemption from applicability of 1952 Act which is a beneficial legislation. [Shree Vishal Printers Ltd. v. Provident Fund Commr., (2019) 9 SCC 508]

Trusts and Trustees — Religious and Charitable Endowments and Trusts — Wakfs — Mutawalli — Role of — Principles summarized: There is clear distinction in matters of powers between appropriator or wakif who himself becomes first mutawalli and mutawalli appointed by wakif. Transfer of office by mutawalli is not permissible, unless he is specifically empowered under wakf deed. Succession to office of mutawalli should be in accordance with intention of person who created wakf. Such intention cannot be subverted by creating subsequent document contrary to intention of creator of wakf. [Syeda Nazira Khatoon v. Syed Zahiruddin Ahmed Baghdadi, (2019) 9 SCC 522]

Cases Reported Supreme Court Cases

2019 SCC Vol. 8 October 28, 2019 Part 2

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 Reported Supreme Court Cases

2019 SCC Vol. 9 October 21, 2019 Part 1

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 Reported Supreme Court Cases

2019 SCC Vol. 8 October 14, 2019 Part 5

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 Reported Supreme Court Cases

2019 SCC Vol. 8 September 28, 2019 Part 3

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 Reported Supreme Court Cases

2019 SCC Vol. 8 September 14, 2019 Part 1

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 Reported Supreme Court Cases

2019 SCC Vol. 7 September 7, 2019 Part 5

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 Reported Supreme Court Cases

2019 SCC Vol. 7 August 28, 2019 Part 4

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 Reported Supreme Court Cases

2019 SCC Vol. 7 August 21, 2019 Part 3

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 Reported Supreme Court Cases

2019 SCC Vol. 7 August 14, 2019 Part 2

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]

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