OP. ED.SCC Journal Section Archives

Be you ever so high, the law is above you

—Thomas Fuller1

 

A reasoned order is a desirable condition of judicial disposal.2 The Supreme Court in exercise of its power under Article 136 of the Constitution dismisses the special leave petition arising out of the judgment/order of the High Court’s passed under the Income Tax Act, 1961 filed at the instance of Department/Revenue and/or the assessee by a non-speaking order in majority of the cases at the threshold. Is this course adopted by the Supreme Court not contrary to one of the facets of principles of natural justice, namely, recording of reasons in an order entailing adverse civil consequences? The present article is, therefore, a manifestation for two main reasons. The first being to try and understand the nature and power of the Supreme Court under Article 136 of the Constitution of India to pass orders by a non-speaking order and its effect on the justice delivery system at the hands of the High Courts in the absence of a speaking order by the Supreme Court. The second reason being to demonstrate that in view of the recognition of the principles of natural justice one of them being giving of reasons in support of an order by a administrative, quasi-judicial and judicial body, which by an interpretative process has come to be considered to be a part and parcel of Article 14 of the Constitution of India, would such a requirement be necessary by subjecting the power of the Supreme Court at the threshold while dismissing the special leave petition under Article 136 of the Constitution of the aggrieved party, whether it be the Department/Revenue or the assessee.

 

SCOPE AND POWER OF THE SUPREME COURT UNDER ARTICLE 136

Article 136 of the Constitution empowers the Supreme Court to grant special leave in its discretion against any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal except by any court or tribunal constituted by or under any law relating to the armed forces. It reads as under:

  1. Special leave to appeal by the Supreme Court.—(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.

(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.

 

Article 136 does not define the nature of proceedings from which the Supreme Court may hear appeals, and therefore, it could hear appeals in any kind of proceedings whether civil, criminal, or relating to income tax, revenue or labour disputes, etc.3 Article 136 is worded in the widest terms possible and is discretionary in nature. It does not confer a right to appeal on a party to litigation; it only confers a discretionary power of widest amplitude on the Supreme Court to be exercised for satisfying the demands of justice. On one hand, it is an exceptional power to be exercised sparingly, with caution and care and to remedy extraordinary situations or situations occasioning gross failure of justice; on the other hand, it is an overriding power where under the Court may generously step in to impart justice and remedy injustice.4 Noticeably, the provisions of Article 136 of the Constitution opens with a non-obstante clause viz. “Notwithstanding anything in this chapter”. The power conferred on the Supreme Court by Article 136 is plenary in the sense that there are no words in Article 136 qualifying that power. It is a sweeping power, exercisable outside the purview of ordinary law to meet the purpose of satisfying the demands of justice.5 The scope of this special appellate jurisdiction of the Supreme Court is very flexible. There are no words in Article 136 itself qualifying the power of the Supreme Court. The matter lies within the complete discretion of the Supreme Court and the only limit upon it is the “wisdom and good sense of the Judges” of the Supreme Court.6 As rightly pointed out by Krishna Iyer, J.7, when extraordinary power under Article 136 chases injustice, sky is the limit. Thus, the Supreme Court while exercising power under Article 136, not only acts as a “court of law” but also as a “court of equity”8; and such a power is exercised for doing full and complete justice.

 

The jurisdiction conferred by Article 136 is divisible into two stages: first stage is up to the disposal of prayer for special leave to file an appeal and the second stage commences if and when the leave to appeal is granted and special leave petition is converted into an appeal. The legal position as summarised by the Supreme Court in Kunhayammed v. State of Kerala9 regarding the scope of two stages reads as under:

(a) While hearing the petition for special leave to appeal, the Court is called upon to see whether the petitioner should be granted such leave or not. While hearing such petition, the Court is not exercising its appellate jurisdiction; it is merely exercising its discretionary jurisdiction to grant or not to grant leave to appeal. The petitioner is still outside the gate of entry though aspiring to enter the appellate arena of the Supreme Court. Whether he enters or not would depend on the fate of his petition for special leave.

(b) If the petition seeking grant of leave to appeal is dismissed, it is an expression of opinion by the Court that a case for invoking appellate jurisdiction of the court was not made out.

(c) If leave to appeal is granted, the appellate jurisdiction of the court stands invoked; the gate for entry in appellate arena is opened. The petitioner is in and the respondent may also be called upon to face him, though in an appropriate case, in spite of having granted leave to appeal, the Court may dismiss the appeal without noticing the respondent.

(d) In spite of a petition of special leave to appeal having been filed, the judgment, decree or order against which leave to appeal has been sought for, continues to be final, effective and binding as between the parties. Once leave to appeal has been granted, the finality of the judgment, decree or order appealed against is put in jeopardy though it continues to be binding and effective between the parties unless it is a nullity or unless the Court may pass a specific order staying or suspending the operation or execution of the judgment, decree or order under challenge.10

 

The Supreme Court in Mathai v. George11 referred the matter to a Constitution Bench for laying guidelines governing its discretionary power under Article 136 of the Constitution by making the following observations:

  1. Article 136, no doubt, states that the Supreme Court may in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. However, it is not mentioned in Article 136 of the Constitution as to in what kind of cases the said discretion should be exercised. Hence, some broad guidelines need to be laid down now by a Constitution Bench of this Court otherwise this Court will be flooded (and in fact is being flooded) with all kinds of special leave petitions even frivolous ones and the arrears in this Court will keep mounting and a time will come when the functioning of this Court will become impossible. It may be mentioned that Article 136, like Article 226, is a discretionary remedy, and this Court is not bound to interfere even if there is an error of law or fact in the impugned order.

 

In the aforesaid case of Mathai11, the Hon’ble Supreme Court laid down the following circumstances under which power under Article 136 of the Constitution could be exercised:

(a) All matters involving substantial questions of law relating to the interpretation of the Constitution of India;

(b) All matters of national or public importance;

(c) Validity of laws, Central and State;

(d) To settle differences of opinion on important issues of law between High Courts;

(e) Where the Court is satisfied that there has been a grave miscarriage of justice; and

(f) Where a fundamental right of a person has prima facie been violated.

However, the Division Bench also mentioned in the order11 of reference clarifying that — it is for the Constitution Bench to which we are referring this matter to decide what are the kinds of cases in which discretion under Article 136 should be exercised.

 

The Constitution Bench12 subsequently while reiterating that the powers conferred under Article 136 of the Constitution are discretionary, while declining to lay down any guidelines in view of its earlier decisions13, observed:

  1. Upon perusal of the law laid down by this Court in the aforesaid judgments, in our opinion, no effort should be made to restrict the powers of this Court under Article 136 because while exercising its powers under Article 136 of the Constitution of India, this Court can, after considering facts of the case to be decided, very well use its discretion. In the interest of justice, in our view, it would be better to use the said power with circumspection, rather than to limit the power forever.
  2. In the circumstances, we do not see any reason to answer the issue which has already been answered in the aforesaid judgments. We are of the opinion that no further elaboration is required on the issue involved in this case. The special leave petition is dismissed as infructuous.14

(emphasis supplied)

 

DOCTRINE OF MERGER

The Supreme Court in Kunhayammed15 while referring to the stages governing the power to be exercised under Article 136 of the Constitution also dealt with the issue of merger vis-à-vis the question as to whether the dismissal of special leave petition would be construed as affirmation of the judgment of the High Court by the Supreme Court for which special leave petition was sought for, laid down the following principles by holding that:

(a) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of the law;

(b) Doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136, the Supreme Court may reverse, modify or affirm the judgment, decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can, therefore, be applied to the former and not to the latter;

(c) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed;

(d) If the order refusing leave to appeal is a speaking order i.e. gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties; and

(e) Once leave to appeal has been granted and appellate jurisdiction of the Supreme Court has been invoked, the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.16

Thus, where special leave petition is dismissed at the very first stage i.e. in limine, by non-speaking order under Article 136 of the Constitution, it does not constitute any law within the meaning of Article 141 of the Constitution of India and there is no merger of the order against which appeal had been preferred. However, where special leave petition is dismissed after assigning reasons, by virtue of the rule of discipline there is a declaration of law thereby attracting Article 141 of the Constitution of India without there being any merger. In case where leave is granted under Article 136 of the Constitution and upon conversion of civil appeal, the dismissal with or without reasons a binding precedent of the Supreme Court would come surface and merger takes place.

 

NEED OF RECORDING OF REASONS

Article 136 of the Constitution does not expressly provide for giving of reasons in support of an order passed by the Supreme Court at the first stage and/or at the second stage not to talk of any stage. Is the power of dismissal exercised by the Supreme Court by not passing a speaking order i.e. by not assigning reasons which is considered to be a third principle of natural justice, howsoever brief they may be in support thereof, at the first stage in particular, justified in law.

 

One of the fundamental maxims of natural justice which has taken its firm roots in Indian Law is audi alteram partem which has many facets. Two of them are: (a) notice of the case to be met; and (b) opportunity to explain which means opportunity of hearing. Due to rapid development and growth of constitutional law as well as administrative law, another principle of natural justice has also emerged; (c) speaking orders or reasoned decisions: all orders should be supported by reasons. Recording of reasons is a sole of justice and every order be it passed in exercise of the power which may be judicial, administrative or quasi-judicial must contain reasons in support thereof. Giving of reasons in support of an order is considered to be third principle of natural justice. An aggrieved party has a right to know the reasons in support of the decision. This is one of the cardinal principles of natural justice. Thus, it is the basic principle of law that every order passed by any administrative body or any quasi-judicial body and/or even by the judicial body must disclose the reasons. Summarising the law with regard to recording of reasons, in Kranti Associates (P) Ltd. v. Masood Ahmed Khan17, it was pronounced by the Hon’ble Supreme Court that:

(a) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.

(b) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.

(c) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations.

(d) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.

(e) The ongoing judicial trend in all countries committed to the rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice.

(f) Judicial or even quasi-judicial opinions these days can be as different as the Judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants’ faith in the justice-delivery system.

(g) Insistence on reason is a requirement for both judicial accountability and transparency.

(h) If a Judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.

(i) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or “rubber-stamp reasons” is not to be equated with a valid decision-making process.

(j) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the Judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor18.)

(k) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija v. Spain19, EHRR at 562, para 29 and Anya v. University of Oxford20, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, “adequate and intelligent reasons must be given for judicial decisions”.

(l) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of “due process”.21

 

Thus, the principles of natural justice have in recent years found an important place in Indian jurisprudence22 and in foreign jurisdictions23 as well, calculated to invest law with fairness and to secure justice; and have at the same time come to be recognised as being a part of the guarantee contained in Article 14 of the Constitution because of the new and dynamic interpretation given by the Hon’ble Supreme Court to the concept of equality which is the subject-matter of that article. The pertinent observations of the Hon’ble Supreme Court in Union of India v. Tulsiram Patel24 deserves to be noticed which reads here as under:

  1. 95. Shortly put, the syllogism runs thus: violation of a rule of natural justice results in arbitrariness which is the same as discrimination; where discrimination is the result of State action, it is a violation of Article 14; therefore, a violation of principle of natural justice by a State action is a violation of Article 14. Article 14, however, is not the sole repository of the principles of natural justice. What it does is to guarantee that any law or State action violating them will be struck down. The principles of natural justice, however, apply not only to legislation and State action but also where any tribunal, authority or body of men, not coming within the definition of “State” in Article 12 is charged with the duty of deciding a matter. In such a case, the principles of natural justice require that it must decide such matter fairly and impartially.25

(emphasis supplied)

 

The principles of natural justice which have taken deep root in the judicial conscience of our people are now considered so fundamental as to be implicit in the concept of ordered liberty and therefore, implicit in every decision-making function, call it judicial, quasi-judicial or administrative. This principle holds good insofar as the statutory authorities are functioning under the Act and would also equally be applicable to the Supreme Court discharging judicial functions by virtue of the constitutional power under Article 136 while deciding a lis in any matter as it is its duty to uphold constitutional values and to enforce constitutional limitations, which being the essence of the rule of law stands stamped with natural justice.26

 

The applicability of Article 14 of the Constitution governing the judicial function performed by the Supreme Court although is a debateable issue27 on account of the fact that Supreme Court did not fall within the ambit of “State” or “Other Authorities” under Article 12 so as to attract Article 14 of the Constitution of India but irrespective of the controversy of application of Article 14 to judicial decisions rendered by the Supreme Court, the inviolable fundamental rights one of them being natural justice which is a part of basic structure of the Constitution would govern the very exercise of judicial power by the Supreme Court and as a result thereof the self-imposed limitation on the exercise of such a power would inhere in itself and subject to the principles of natural justice.

 

There is another aspect of the matter. Article 145 of the Constitution of India, inter alia, confers power on the Supreme Court to frame Rules with the approval of the President of India for regulating the practice and procedure regarding hearing of appeals and other matter pertaining to appeals including making rules as to the proceedings in the Court for the enforcement of any of the rights conferred by Part III of the Constitution of India. The Rules framed under Article 145 and the provisions of Article 136 are silent about the observance of principles of natural justice and the silence is taken to imply compliance with the principles of natural justice i.e. speaking order to be passed under Article 136 by the Supreme Court as the orders entail civil consequences. By necessary implication in the absence of express exclusion of principle of natural justice i.e. speaking order governing the exercise of power either by the provisions of Article 136 or the Rules made under Article 145, the power in view of the principle of law enunciated in a catena of cases28 decided by the Hon’ble Supreme Court would be read into the interstices of the provisions of an enactment whereunder orders are passed which entails civil consequences. The said principle would equally be applicable for regulating a discretionary power conferred on an authority discharging judicial functions like the Supreme Court. A citizen is entitled to be under “the Rule of law and not the rule of discretion” and “to remit the maintenance of constitutional right to judicial discretion is to shift the foundations of freedom from the rock to the sand”.29

 

The following emphatic observations of Chinnappa Reddy, J., who delivered a concurrent judgment in National Textile Workers’ Union v. P.R. Ramakrishnan30 reinforce the necessity of speaking orders by Courts:

  1. Can courts say natural justice need not be observed by them as they know how to render justice without observing natural justice? It will surely be a travesty of justice to deny natural justice on the ground that courts know better.… Courts even more than administrators must observe natural justice.31

 

Thus, a non-speaking order passed by the Supreme Court under Article 136 of the Constitution affects the fundamental right of the affected party against whom an adverse order has been passed and, therefore, the unrestricted discretionary power in the Supreme Court would indeed be subject to passing of speaking order being an inherent constitutional limitation of such a power for maintaining rule of law in the sense that everything they did was within the framework of law thereby preventing not only abuse of discretionary power but uncertainty in law.

 

EFFECT OF NON-SPEAKING ORDERS OF THE SUPREME COURT

Non-speaking orders passed by the Supreme Court under Article 136 of the Constitution have adverse effect on the ongoing litigation in income tax matters. There are instances where the Supreme Court on the same substantial question of law where a view has been expressed by the High Court in favour of the assessee has dismissed the appeal of the Department/Revenue and in another case view taken by the High Court in the favour of Department/Revenue, the appeal of the assessee has been dismissed by the Supreme Court on a same very substantial question of law by a non-speaking order.

 

In CIT v. Orient Craft Ltd.32, a Division Bench of the High Court of Delhi expressed opinion in favour of the assessee on the question as to whether the assessing officer in the absence of any tangible material could reopen the assessment made under Section 143(1) of the Income Tax Act, 1961. The Department preferred a special leave petition against the said judgment before the Hon’ble Supreme Court under Article 136 of the Constitution which was dismissed33 by a non-speaking order. Subsequently, in Krishna Developers & Company v. CIT34, the High Court of Gujarat dissented from the view which had been expressed by the High Court of Delhi in Orient Craft Ltd.32 The assessee preferred special leave petition against the said view expressed by the High Court of Gujarat and the same was dismissed35 by the Supreme Court under Article 136 of the Constitution of India by a non-speaking order. Such like cases are numerous particularly another set of cases where the Supreme Court under Article 136 of the Constitution dismisses the appeal of the Department/Revenue by leaving the question of law open which too leads to uncertainty.36

 

The necessity of adhering to the passing of a speaking order under Article 136 of the Constitution stems from another aspect namely, that the Supreme Court time and again has emphasised that the High Court while entertaining an appeal under Section 260-A of the Income Tax Act, 1961 must first formulate the substantial questions of law for admission of the appeal and if the High Court is of the view that the appeal did not involve any substantial question of law, it should record a categorical finding to the effect that no substantial question of law is involved for its admission; and if the questions formulated fall in the category of substantial question of law, the appeal is to be heard on merits on the framed questions after admitting the appeal.37 In principle, the same procedure as is contemplated by the provisions of Section 260-A of the Income Tax Act, 1961 which is para materia with the provisions of Section 100 of the Code of Civil Procedure, 1908 should be read into the interstices of the provisions of Article 136 of the Constitution more so when two stages of consideration govern the discretionary exercise of power under Article 136 of the Constitution.

 

EPILOGUE

When a special leave petition is filed and the same is dismissed, reasons howsoever brief in conformity with the reasons contained in the judgment/order passed by the High Court answering the substantial question of law should be assigned by the Supreme Court while exercising power under Article 136 of the Constitution being a declaration of law under Article 141 of the Constitution would settle the ongoing controversy pending consideration before the High Courts, Tribunals including authorities under the Income Tax Act. No doubt the untrammelled reservoir of power conferred incapable of being confined to definitional bounds which is discretionary is subjected to only one limitation, that is, the wisdom and the good sense of justice would be more effective instilling confidence in the judicial system if such a power is effectuated by the third principle of natural justice i.e. giving of reasons in support of the order passed under Article 136 of the Constitution. As righty pointed out in C.B. Gautam v. Union of India38 by the Constitution Bench of the Supreme Court that the recording of reasons, which lead to the passing of the order is basically intended to serve a twofold purpose, firstly, a “party aggrieved” acquires knowledge of the reasons and that the obligation to record reasons and convey the same to the party concerned operates as a deterrent against possible arbitrary action. The requirement of recording reasons would introduce clarity, exclude arbitrariness, unconscious bias thereby satisfying the aggrieved party concerned against whom the order is passed under Article 136 of the Constitution at the first stage by that the Supreme Court. Maintaining of institutional integrity is of utmost importance after all as rightly said in principle by Lord Denning39 — “the giving of reasons is one of the fundamentals of good administration” and in addition thereto keeping in mind the following apt observations40 made by the Hon’ble Judge (D.A. Desai, J.):

… to give reasons which appealed to us though drawn up by one of us would any day provide a better choice than not to give reasons because it would always annoy and distress the party who lost the legal battle whether there are legal or logical reasons in support of the order or it is merely an arbitrary exercise of power.41 The age-old principle that “justice should not only be done but seem to be done”42 in its true spirit and command must govern the exercise of power by a speaking order at the hands of the Supreme Court under Article 136 of the Constitution of India after all justice is a virtue which transcends all barriers and is the constant and perpetual purpose of rendering each man his due which inheres rendering of speaking orders making the discretionary power under Article 136 of the Constitution enriched with fairness.

 


Senior Advocate, High Court of Punjab & Haryana, Chandigarh

*The article has been published with kind permission of SCC Online cited as (2021) 2 SCC J-25

1Quoted by Lord Denning in Gouriet v. Union of Post Workers, [1977] Q.B. 729, 762 (CA); P.N. Duda v. P. Shiv Shanker, (1988) 3 SCC 167.

2M.P. Industries Ltd. v. Union of India, AIR 1966 SC 671.

3Pritam Singh v. State, 1950 SCR 453 : AIR 1950 SC 169.

4 See: Narpat Singh v. Jaipur Development Authority, (2002) 4 SCC 666; Durga Shankar Mehta v. Raghuraj Singh, AIR 1954 SC 520.

5 See: Narendra Nath Khaware v. Parasnath Khaware, (2003) 5 SCC 488.

6Penu Balakrishna Iyer v. Ariya M. Ramaswami Iyer, AIR 1965 SC 195.

7P.S.R. Sadhanantham v. Arunachalam, (1980) 3 SCC 141.

8 See: Shivanand Gaurishankar Baswanti v. Laxmi Vishnu Textile Mills, (2008) 13 SCC 323; Rashpal Malhotra v. Satya Rajput, (1987) 4 SCC 391; Bharat Bank Ltd. v. Employees, 1950 SCC 459 : AIR 1950 SC 188; Chandra Bansi Singh v. State of Bihar, (1984) 4 SCC 316.

9(2000) 6 SCC 359; affirmed by the co-equal Bench of the Supreme Court in Khoday Distilleries Ltd. v. Mahadeshwara Sahakara Sakkare Karkhane Ltd., (2019) 4 SCC 376.

10 Id, 372, para 14.

11(2010) 4 SCC 358.

12Mathai v. George, (2016) 7 SCC 700.

13Pritam Singh v. State, 1950 SCR 453 : AIR 1950 SC 169; Penu Balakrishna Iyer v. Ariya M. Ramaswami Iyer, AIR 1965 SC 195; Union Carbide Corpn. v. Union of India, (1991) 4 SCC 584.

14Mathai v. George, (2016) 7 SCC 700, 702, paras 6-7.

15Kunhayammed v. State of Kerala, (2000) 6 SCC 359.

16Kunhayammed v. State of Kerala, (2000) 6 SCC 359, 383-84, para 44.

17(2010) 9 SCC 496.

18(1987) 100 HLR 731.

19(1995) 19 EHRR 553.

202001 EWCA Civ 405.

21Kranti Associates (P) Ltd. v. Masood Ahmed Khan, (2010) 9 SCC 496, 510-12, para 47.

22Maneka Gandhi v. Union of India, (1978) 1 SCC 248; Swadeshi Cotton Mills v. Union of India, (1981) 1 SCC 664; Woolcomber of India Ltd. v. Workers’ Union, (1974) 3 SCC 318; Sahara India (Firm) (1) v. CIT, (2008) 14 SCC 151; C.B. Gautam v. Union of India, (1993) 1 SCC 78; Union of India v. Mohan Lal Capoor, (1973) 2 SCC 836.

23 In R. v. Civil Service Appeal Board, ex p Cunningham, (1991) 4 All ER 310 (CA), Lord Donaldson, Master of Rolls, opined very strongly in favour of disclosing of reasons in a case where the Court is acting in its discretion. See also: North Range Shipping Ltd. v. Seatrans Shipping Corpn., [2002] 1 WLR 2397 (CA); Cullen v. Chief Constable of the Royal Ulster Constabulary, [2003] 1 WLR 1763 (HL).

24(1985) 3 SCC 398; See also: Swadeshi Cotton Mills v. Union of India, (1981) 1 SCC 664; Dev Dutt v. Union of India, (2008) 8 SCC 725.

25Union of India v. Tulsiram Patel, (1985) 3 SCC 398, 476, para 95.

26 See: Mohinder Singh Gill v. Chief Election Commr., (1978) 1 SCC 405; Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625.

27 See: H.M. Seervai, Constitutional Law of India (3rd Edn., Vol. 1) pp. 225 to 236.

28State of Orissa v. Binapani Dei, AIR 1967 SC 1269; A.K. Kraipak v. Union of India, (1969) 2 SCC 262; Rajesh Kumar v. CIT, (2007) 2 SCC 181.

29Union Carbide Corpn. v. Union of India, (1991) 4 SCC 584.

30(1983) 1 SCC 228.

31 Id, 260 para 16.

322012 SCC OnLine Del 6386 : (2013) 354 ITR 536.

33CIT v. Orient Craft Ltd., 2014 SCC OnLine SC 1807.

342017 SCC OnLine Guj 2495 : (2018) 400 ITR 260.

35Krishna Developers & Co. v. CIT, 2018 SCC OnLine SC 3647.

36 Special leave petition preferred by the Union of India against the judgment of the High Court of Punjab & Haryana reported as Adfert Technologies (P) Ltd. v. Union of India, 2019 SCC OnLine P&H 5701, was dismissed by the Hon’ble Supreme Court of India by a non-speaking order, reported as Union of India v. Adfert Technologies (P) Ltd., 2020 SCC OnLine SC 1064, however, on the same very issue special leave petition stands granted by the Supreme Court in Union of India v. Brand Equity Treaties Ltd., 2020 SCC OnLine SC 1065 against the judgment rendered by the High Court of Delhi in Brand Equity Treaties Ltd. v. Union of India, 2020 SCC OnLine Del 1698.

37 See: CIT v. A.A. Estate (P) Ltd., (2019) 14 SCC 99; Ryatar Sahakari Sakkare Karkhane Niyamit v. CIT, (2019) 5 SCC 706; M. Janardhana Rao v. CIT, (2005) 2 SCC 324.

38(1993) 1 SCC 78.

39Breen v. Amalgamated Engg. Union, [1971] 2 Q.B. 175  :  [1971] 2 WLR 742 (CA).

40Ram & Shyam Company v. State of Haryana, (1985) 3 SCC 267.

41 Id, 271, para 2.

42Lord Chief Justice Hewart in R. v. Sussex Justices, [1924] 1 K.B. 256

Case BriefsSupreme Court

Supreme Court of India: The Bench of M.R. Shah and Aniruddha Bose, JJ., observed that,

“Appellate Tribunal has jurisdiction or power to condone the delay not exceeding 15 days from the completion of 30 days, the statutory period of limitation.”

Aggrieved and dissatisfied with impugned order passed by the National Company Law Appellate Tribunal by which NCLAT refused to condone delay of 44 days in preferring the appeal against the order passed by the National Company Law Tribunal rejecting the claim of the appellant. Appellant has preferred the present appeal.

Factual Background

State Bank of India (SBI) had initiated the insolvency proceedings before the NCLT under Section 7 of the Insolvency and Bankruptcy Code, 2016 against Dunar Foods Limited (Corporate Debtor) on the ground that Corporate Debtor had taken credit limits by hypothecating the commodities kept in the warehouses of the appellant.

It was stated that there was a delay of 44 days in preferring the appeal before NCLAT as the said appeal was required to be filed within a maximum period of 45 days (30 days + 15 days). However, there was a further delay of 44 days beyond a total period of 45 days.

Therefore, considering Section 61(2) of IBC which provides for powers to the Appellate Tribunal to condone delay of only 15 days which it can condone over the period of 30 days, if there is a sufficient cause, by impugned order, the Appellate Tribunal dismissed the appeal on the ground that the tribunal had no jurisdiction to condone the delay beyond 15 days and thereby the appeal was barred by limitation.

Analysis, Law and Decision

Bench noted that the appellant had applied for the certified copy of the order passed by the adjudicating authority after a delay of 34 days. Hence the said copy of the order was applied beyond the prescribed period of limitation i.e. beyond 30 days.

As the Appellate Tribunal can condone the delay up to a period of 15 days only, the Appellate Tribunal refused to condone the delay which was beyond 15 days from completion of 30 days, i.e., in the present case delay of 44 days and consequently dismissed the appeal.

 Hence, the appellate tribunal did not commit any error.

Further, the Court stated that in a case there may arise a situation where the applicant may not be in a position to file the appeal within a statutory period of limitation and even within the extended maximum period of appeal which could be condoned owing to genuineness, viz., illness, accident, etc. However, Parliament has not carved any exception of such a situation.

“…courts have no jurisdiction and/or authority to carve out any exception. If the courts carve out an exception, it would amount to legislate which would in turn might be inserting the provision to the statute, which is not permissible.”

In the decision of Popat Bahiru Govardhane v.  Special Land Acquisition Officer, (2013) 10 SCC 765, this Court has observed and held that it is a settled legal position that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the Statute so prescribes.

Further, in the decision of this Court in Oil & Natural Gas Corporation Limited v. Gujarat Energy Transmission Corporation Limited, (2017) 5 SCC 42, the question was with respect to delay beyond 120 days in preferring the appeal under Section 125 of the Electricity Act and the question arose whether the delay beyond 120 days in preferring the appeal is condonable or not. After considering various earlier decisions of this Court on the point and considering the language used in Section 125 [2] of the Electricity Act which provided that delay beyond 120 days is not condonable, this Court has observed and held that it is not condonable and it cannot be condoned, even taking recourse to Article 142 of the Constitution.

Hence, Supreme Court held that delay beyond 15 days in preferring the appeal is uncondonable, the same cannot be condoned even in exercise of powers under Article 142 of the Constitution.

Conclusion 

“…considering the fact that even the certified copy of the order passed by the adjudicating authority was applied beyond the period of 30 days and as observed hereinabove there was a delay of 44 days in preferring the appeal which was beyond the period of 15 days which maximum could have been condoned and in view of specific statutory provision contained in Section 61(2) of the IB Code, it cannot be said that the NCLAT has committed any error in dismissing the appeal on the ground of limitation by observing that it has no jurisdiction and/or power to condone the delay exceeding 15 days.”

In view of the above discussion, the appeal failed and was dismissed. [National Spot Exchange Ltd. v. Anil Kohli, 2021 SCC OnLine SC 716, decided on 14-09-2021]

Case BriefsSupreme Court

Supreme Court: The Division Bench of L. Nageswara Rao and B.R. Gavai, JJ., dissolved a marriage while exercising its jurisdiction under Article 142 of the Constitution of India as the marriage was emotionally dead.

Appellant had married respondent and registered the same under the Special Marriage Act, 1954. Thereafter the marriage was solemnized under Hindu rites and customs.

Appellant filed a suit for dissolution of marriage alleging cruelty and desertion by the respondent, but the suit was dismissed by the District Judge and further the Calcutta High Court upheld the Trial Court’s decision.

Respondent accused the appellant of adultery and excessive consumption of alcohol.

Senior Counsel, Nikhil Nayyar for the appellant submitted that appellant and respondent have been living separately for more than 16 years and for all practical purposes the marriage is dead.

Supreme Court requested Mr Ranjan Mukherjee to assist this Court as Amicus Curiae on behalf of the respondent as she did not engage an Advocate.

Amicus informed the Court that the respondent intended to continue to live with the appellant. Mr Mukherjee also brought to Court’s notice that the respondent has to take care of her son who is suffering from serious ailments.

This Court in Munish Kakkar v. Nidhi Kakkar, (2020) 14 SCC 657, had put an end to the bitter matrimonial dispute which lingered on for two decades between the parties.

In Court’s opinion, the marriage between the parties was emotionally dead and there was no point in persuading them to live together anymore.

Hence, the present matter was found fit for exercise of jurisdiction under Article 142 of the Constitution of India and the marriage was dissolved.

In light of the submission of Mr Mukherjee, Court directed the appellant to pay Rs 25 lakhs to the respondent and the maintenance petition filed by respondent shall be withdrawn once the payment of the said amount is made.

In view of the above appeal was disposed of.[Subhranshu Sarkar v. Indrani Sarkar (Nee Das), 2021 SCC OnLine SC 720, decided on 14-09-2021]

Case BriefsSupreme Court

Supreme Court: In a landmark case, the Division Bench of M.R. Shah and Aniruddha Bose, JJ., held that an employee has no right to insist/deny his transfer at a particular place.

The Bench was addressing the case of a Lecturer (Psychology) at Rajkiya Mahavidyalaya, Gajraula, District Amroha; who had made representation for her transfer to Rajkiya Post Graduate College, Noida, Gautam Buddha Nagar. The said representation had been rejected by the Additional Chief Secretary Higher Education, Uttar Pradesh. The petitioner contended before the Court that she had been working at Amroha for the last 4 years and therefore, under the Government policy she was entitled to a transfer.

However, the impugned rejection order reflected that the petitioner had remained posted at Rajkiya Post Graduate College, Noida, Gautam Buddha Nagar from the date of her initial appointment 18-12-2000 to 11-08-2013 i.e. for about 13 years and therefore, her request for posting her again at the same institution was not justified.

Noticeably, the case of the petitioner was dismissed by the High Court of Judicature at Allahabad on the ground that she was not entitled to be posted at the place where she had already worked at a stretch for about 13 years. The High Court had held that in case the petitioner had completed requisite number of years at the place of her present posting, she may request for her transfer to some other place but not to the place where she had already worked for 13 years.

Upholding the decision of the High Court, the Bench held that it is not for the employee to insist to transfer him/her and/or not to transfer him/her at a particular place. It is for the employer to transfer an employee considering the requirement. Accordingly, the Special Leave Petition was dismissed. [Namrata Verma v. State of U.P., Special Leave to Appeal (C) No(s). 36717 of 2017, decided on 06-09-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For Petitioner(s): Mr Parvez Bashista, Adv. Dr Nirmal Chopra, AOR

For Respondent(s): Mr Sanjay Kumar Tyagi, AOR

Case BriefsSupreme Court

Supreme Court: The Division Bench of M.R. Shah and Aniruddha Bose, JJ., while addressing a matter noted that,

Abetment by a person is when a person instigates another to do something. Instigation can be inferred where the accused had, by his acts or omission created such circumstances that the deceased was left with no other option except to commit suicide.

Aggrieved with the Madras High Court’s decision by which the Court had dismissed the appeal preferred by the appellant and confirmed the trial court’s decision convicting the accused of the offence under Section 306 Penal Code, 1860, appellant approached the Supreme Court.

Background

Appellant was married to the deceased 25 years prior to the occurrence. On the day of occurrence, there was some quarrel between the deceased–wife of the appellant. Thereafter both the appellant and the deceased consumed pesticide.

However, the appellant survived but his wife died.

A complaint was filed against the appellant stating that he was having intimacy with the other woman and therefore the couple used to quarrel.

It was alleged against the accused that he had committed the offence under Section 306 IPC and on the conclusion of the investigation, a charge sheet was filed against the appellant accused of the offence under Section 306 IPC.

High Court had confirmed the conviction for the offence under Section 306 IPC.

Analysis, Law and Decision

Appellant was convicted for the offence under Section 306 IPC.

Allegation that the appellant-accused was having an illicit relationship with another woman was not established and proved by the prosecution.

In light of the facts and circumstances of the case, Bench considered whether can it be said that the appellant accused had committed an offence under Section 306 IPC for which he had been convicted?

Abetment of Suicide

 “…in a case where if any person instigates other person to commit suicide and as a result of such instigation the other person commits suicide, the person causing the instigation is liable to be punished for the offence under Section 306 IPC for abetting the commission of suicide.”

 In view of the above, to bring a case within the provision of Section 306 IPC, there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigating or by doing a certain act to facilitate the commission of suicide.

In the Supreme Court decision of Amalendu Pal v. State of West Bengal, (2010) 1 SCC 707, it was observed that mere harassment without any positive action on the part of the accused proximate to the time of occurrence which led to the suicide would not amount to an offence under Section 306 IPC.

In the present matter, no material was recorded that indicated abetment or appellant’s active role to instigate the deceased to facilitate the commission of suicide. On the contrary, in the instant case, the appellant himself tried to commit suicide and consumed pesticide.

Hence, in Court’s opinion, both the High Court and Trial Court committed an error in convicting the accused for the offence under Section 306 IPC.

Therefore, in view of the above discussion, the present appeal succeeded and the appellant was released on bail. [Velladurai v. State, 2021 SCC OnLine SC 715, decided on 14-09-2021]

Case BriefsSupreme Court

Supreme Court: A Division Bench comprising of Indira Banerjee and J.K. Maheshwari, JJ. held that once an Arbitral Tribunal is constituted, the court would not take up for consideration and apply its mind to an application for an interim measure, unless the remedy of applying to the arbitral tribunal for interim relief is inefficacious. However, this bar does not operate where already the application has been taken up for consideration and the court has applied its mind.

Questions of Law

The Supreme Court was deciding two questions of law:

(i) Whether the court has the power to entertain an application under Section 9(1) of the Arbitration and Conciliation Act, 1996, once an Arbitral Tribunal has been constituted and if so, what is the true meaning and purport of the expression “entertain” in Section 9(3) of the Arbitration Act?

(ii) Whether the court is obliged to examine the efficacy of the remedy under Section 17, before passing an order under Section 9(1) of the Arbitration Act, once an Arbitral Tribunal is constituted?

Section 9(1) of the Arbitration Act enables a party to an arbitration agreement to apply to a court for interim measures of protection before or during the arbitral proceedings, or at any time after an award is made and published, but before the award is enforced in accordance with Section 36 of the Arbitration Act. Further, Section 9(3) provides that once an Arbitral Tribunal has been constituted, the court shall not entertain an application under sub-section (1), unless the court finds that circumstances exist which may not render the remedy provided under Section 17 efficacious. Under Section 17, an Arbitral Tribunal has the same power to grant interim relief as the court.

Factual Matrix and Appeal

A commercial dispute arose out of a Cargo Handling Agreement entered into between ArcelorMittal Nippon Steel (India) Ltd. and Essar Bulk Terminal Ltd. ArcelorMittal invoked the arbitration clause. Essar did not respond. Thereafter, ArcelorMittal approached Gujarat High Court under Section 11 of Arbitration Act for appointment of Arbitral Tribunal. Subsequently, both parties filed applications under Section 9(1) in Commercial Court seeking interim measures. The Commercial Court heard both the applications and reserved the orders. Meanwhile, the High Court appointed an Arbitral Tribunal. Pursuant to this, ArcelorMittal requested the Commercial Court to refer both the applications filed under Section 9 to the now-constituted Arbitral Tribunal. This prayer was however rejected by the Commercial Court.

ArcelorMittal challenged the order of the Commercial Court before the High Court, which was dismissed. Aggrieved, ArcelorMittal approached the Supreme Court.

Analysis and Observations

Determining the answer to the questions of law (mentioned above), the Supreme Court noted that Section 9(3) of Arbitration Act has two limbs. The first limb prohibits an application under Section 9(1) from being entertained once an Arbitral Tribunal has been constituted. The second limb carves out an exception to that prohibition, if the court finds that circumstances exist which may not render the remedy provided under Section 17 efficacious.

Further, to discourage the filing of applications for interim measures in courts under Section 9(1) of the Arbitration Act, Section 17 clothes the Arbitral Tribunal with the same powers to grant interim measures, as the court under Section 9(1). In fact, an order passed by the Arbitral Tribunal under Section 17 is deemed to be an order of court for all purposes and is enforceable as an order of court. The Court opined:

“With the law as it stands today, the Arbitral Tribunal has the same power to grant interim relief as the Court and the remedy under Section 17 is as efficacious as the remedy under Section 9(1). There is, therefore, no reason why the Court should continue to take up applications for interim relief, once the Arbitral Tribunal is constituted and is in seisin of the dispute between the parties, unless there is some impediment in approaching the Arbitral Tribunal, or the interim relief sought cannot expeditiously be obtained from the Arbitral Tribunal.”

Considering the true meaning and purport of “entertain” in Section 9(3), the Court summarised a catena of judicial precedents and noted that it is now well settled that the expression “entertain” means to consider the issues raised by application of mind. The court entertains a case when it takes up a matter for consideration. The process of consideration can continue till the pronouncement of judgment. That, however, makes no difference. The question is whether the process of consideration has commenced, and/or whether the court has applied its mind to some extent before the constitution of the Arbitral Tribunal. If so, the application can be said to have been entertained before the constitution of the Arbitral Tribunal.

Opining that the intent behind Section 9(3) was not to turn back the clock and require a matter already reserved for orders to be considered in entirety by the Arbitral Tribunal under Section 17 of the Arbitration Act, the Court observed:

“On a combined reading of Section 9 with Section 17 of the Arbitration Act, once an Arbitral Tribunal is constituted, the court would not entertain and/or in other words take up for consideration and apply its mind to an application for interim measure, unless the remedy under Section 17 is inefficacious, even though the application may have been filed before the constitution of the Arbitral Tribunal. The bar of Section 9(3) would not operate, once an application has been entertained and taken up for consideration, as in the instant case, where hearing has been concluded and judgment has been reserved.”

The Court noted that even after an Arbitral Tribunal is constituted, there may be myriads of reasons why the Arbitral Tribunal may not be an efficacious alternative to Section 9(1). This could even be by reason of temporary unavailability of any one of the arbitrators by reason of illness, travel etc. Further, unless applications for interim measures are decided expeditiously, irreparable injury or prejudice may be caused to the party seeking interim relief. Therefore, it could never have been the legislative intent that even after an application under Section 9 is finally heard, relief would have to be declined and the parties be remitted to the remedy under Section 17. Elaborating, the Court explained:

“When an application has already been taken up for consideration and is in the process of consideration or has already been considered, the question of examining whether remedy under Section 17 is efficacious or not would not arise. The requirement to conduct the exercise arises only when the application is being entertained and/or taken up for consideration.”

Lastly, but importantly, the Supreme Court clarified that even if an application under Section 9 had been entertained before the constitution of the Arbitral Tribunal, the court always has the discretion to direct the parties to approach the Arbitral Tribunal, if necessary, by passing a limited order of interim protection.

Decision

In such view of the matter, the Supreme Court held that the High Court rightly directed the Commercial Court to proceed to complete the adjudication. It was however clarified that it shall not be necessary for the Commercial Court to consider the efficacy of relief under Section 17, since the application under Section 9 has already been entertained and considered by the Commercial Court.  [ArcelorMittal Nippon Steel (India) Ltd. v. Essar Bulk Terminal Ltd., 2021 SCC OnLine SC 718, decided on 14-9-2021]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: The Division Bench of Ajay Rastogi and Abhay S. Oka, JJ., while noting the mitigating factors and circumstances in which a crime had been committed, reduced the quantum of sentence for a conviction under Section 307  Penal Code, 1860.

Appellant approached the Supreme Court on being dissatisfied by the Bombay High Court’s decision upholding the conviction of the appellant for the offence under Section 307 Penal Code, 1860.

Prosecutions’ case was that the complainant lodged an oral report contending that Chintaman Dange was his maternal uncle and very active in social work. Previously the appellant and Chintaman Dange had a quarrel because of unlawful construction.

Appellant had stabbed on the stomach of Chintaman Dange with the intent to kill him.

After framing of charge, appellant faced the trial.

Injured victim came forward with the request that, as the families have settled their disputes and almost half of the sentence has been undergone by the appellant, it may be considered to be sufficient in due compliance of the judgment impugned upholding conviction under Section 307 IPC.

Analysis, Law and Decision

It was noted by the Court that the joint affidavit by parties made it clear that on the advice of elders, they had entered into an amicable settlement.

Appellant apologized for his fault and had taken responsibility for his action and had maturely sought forgiveness from the victim. Further, the victim also voluntarily accepted the apology while considering the age of the appellant at the time of the incident and had forgiven him.

Court cited the decision of Murali v. State, (2021) 1 SCC 726, wherein the parties decided to forgive their past and live amicably, this Court had come to their rescue by interfering in the quantum of sentence which obviously was not compoundable under Section 320 CrPC but had interfered since there was no minimum sentence prescribed.

Supreme Court opined that the present matter is a fit case to take a sympathetic view and reconsider the quantum of sentence awarded to the appellant.

Bench stated that the joint affidavit inspired confidence that the apology as tendered by the appellant had voluntarily been accepted given the efflux of time and was not a result of any coercion or inducement.

Considering that the parties are residing in the same village and are peacefully residing after the uncalled for incident had taken place, in Court’s view, this appeared to be a fit case for reduction of sentence.

Hence, the Court reduced the quantum of sentence imposed on the appellant from 10 to 5 years.

In view of the above, application was disposed of. [SY. Azhar SY. Kalandar v. State of Maharashtra, 2021 SCC OnLine SC 701, decided on 13-09-2021]

Case BriefsSupreme Court

Supreme Court: A Division Bench of Dr D.Y. Chandrachud and M.R. Shah, JJ. has held that under Insolvency and Bankruptcy Code, 2016, a Resolution Applicant is not entitled to withdraw or modify its Resolution Plan, once it has been submitted to the National Company Law Tribunal (Adjudicating Authority). The Supreme Court held:

“The existing insolvency framework in India provides no scope for effecting further modifications or withdrawals of CoC-approved Resolution Plans, at the behest of the successful Resolution Applicant, once the plan has been submitted to the Adjudicating Authority.”

The Court observed that a Resolution Applicant, after obtaining the financial information of the Corporate Debtor through the informational utilities and perusing the Information Memorandum, is assumed to have analysed the risks in the business of the Corporate Debtor and submitted a considered proposal. A submitted Resolution Plan is binding and irrevocable as between the Committee of Creditors (“CoC”) and the successful Resolution Applicant in terms of provisions of the Insolvency and Bankruptcy Code, 2016 (“IBC”) and the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (“CIRP Regulations”).

At the same time, the Court recognised that long delays in approving the Resolution Plan by NCLT affect subsequent implementation of the plan. It was observed:

“These delays, if systemic and frequent, will have an undeniable impact on the commercial assessment that the parties undertake during the course of the negotiation. … Such inordinate delays cause commercial uncertainty, degradation in the value of the Corporate Debtor and makes the insolvency process inefficient and expensive.”

The Supreme Court urged NCLT and NCLAT to be sensitive to the effect of such delays on the insolvency resolution process and be cognizant that adjournments hamper the efficacy of the judicial process. The Court said:

“The NCLT and the NCLAT should endeavor, on a best effort basis, to strictly adhere to the timelines stipulated under the IBC and clear pending resolution plans forthwith. Judicial delay was one of the major reasons for the failure of the insolvency regime that was in effect prior to the IBC. We cannot let the present insolvency regime meet the same fate.”

The Court was deciding appeals filed against the judgments of NCLAT whereby it had upheld the orders passed by NCLT rejecting withdrawal applications filed by Resolution Applicants (appellants before the Supreme Court).

Following is a comprehensive report of Supreme Court’s legal and factual analysis.

Question of Law

In the instant case, the task before the Supreme Court was to answer the question of law: Whether a Resolution Applicant is entitled to withdraw or modify its Resolution Plan, once it has been submitted by the Resolution Professional to NCLT and before it is approved by the latter under Section 31(1) of the Insolvency and Bankruptcy Code, 2016?

Legal Analysis and Observations

Purpose of a law on insolvency

Discussing the dynamic and comprehensive nature of IBC, the Supreme Court noted that the procedure designed for the insolvency process is critical for allocating economic coordination between the parties who partake in, or are bound by the process. This procedure produces substantive rights and obligations. The Court said:

“Upholding the procedural design and sanctity of the process is critical to its functioning. The interpretative task of the Adjudicating Authority, Appellate Authority, and even this Court, must be cognizant of, and allied with that objective.”

The Court opined that any judicial creation of a procedural or substantive remedy that is not envisaged by the statute would not only violate the principle of separation of powers, but also run the risk of altering the delicate coordination that is designed by IBC framework and have grave implications on the outcome of the Corporate Insolvency Resolution Process (“CIRP”), the economy of the country and the lives of the workers and other allied parties who are statutorily bound by the impact of a resolution or liquidation of a Corporate Debtor. It was observed:

“The adjudicating mechanisms which have been specifically created by the statute, have a narrowly defined role in the process and must be circumspect in granting reliefs that may run counter to the timeliness and predictability that is central to the IBC.”

Nature of a Resolution Plan

The Supreme Court sought to determined the nature of a Resolution Plan after its approval by CoC but prior to its approval by NCLT. This would help establish the source of legal force of a Resolution Plan ─ whether it is IBC or the law of contract. It was noted that the insolvency process, as governed by IBC, does not merely structure the conduct of participants in the process after finalisation and approval of a Resolution Plan by CoC, but also the conduct stemming from the very first steps of inviting prospective Resolution Applicants. Discussing the statutory framework, the Court observed:

“[F]eatures of a Resolution Plan, where a statute extensively governs the form, mode, manner and effect of approval distinguishes it from a traditional contract, specifically in its ability to bind those who have not consented to it.”

The Court opined that a Resolution Plan cannot be construed purely as a ‘contract’ governed by the Contract Act, in the period intervening its acceptance by CoC and the approval of NCLT.

Further, the Court opined that a Resolution Plan cannot be classified even as a ‘statutory contract’. There is no provision under IBC referring to a Resolution Plan as a contract. The legal force of a Resolution Plan arises due to the framework provided under IBC. Reiterating that IBC is a self-contained Code, the Court concluded:

“Principles of contractual construction and interpretation may serve as interpretive aids, in the event of ambiguity over the terms of a Resolution Plan. However, remedies that are specific to the Contract Act cannot be applied, de hors the overriding principles of the IBC.”

Statutory framework governing CIRP

IBC and regulations framed thereunder provide a detailed procedure for completion of CIRP. The Supreme Court noted that CIRP is a time bound process with a specific aim of maximising the value of assets. IBC and the regulations made under it lay down strict timelines which need to be adhered to by all the parties, at all stages of CIRP. The second proviso to Section 12(3) of IBC read with the judicial dictum in Essar Steel (India) Ltd. v. Satish Kumar Gupta, (2020) 8 SCC 531 prescribes that CIRP in its entirety must be completed within 330 days from the insolvency commencement date, including the time taken in legal proceedings, with a short extension to be granted only in exceptional cases. This is indicative of the strong emphasis of IBC on its timelines and its attempt to thwart the prospect of stakeholders engaging in multiple litigations solely with the intent of causing undue delay. The Court observed:

“Delays are also a cause of concern because the liquidation value depletes rapidly, irrespective of the imposition of a moratorium, and a delayed liquidation is harmful to the value of the Corporate Debtor, the recovery rate of the CoC and consequentially, the economy at large.”

The evolution of IBC framework, through an interplay of legislative amendments, regulations and judicial interpretation, consistently emphasises the predictability and timeliness of IBC. If CIRP is not completed within the prescribed timeline, the Corporate Debtor is sent into liquidation. Relying on Innoventive Industries Ltd. v. ICICI Bank, (2018) 1 SCC 407 and Gujarat Urja Vikas Nigam Ltd. v. Amit Gupta, 2021 SCC OnLine SC 194, the Court said:

“The stipulation of timelines and a detailed procedure under the IBC ensures a timely completion of CIRP and introduces transparency, certainty and predictability in the insolvency resolution process. … This Court should proceed with caution in introducing any element in the insolvency process that may lead to unpredictability, delay and complexity not contemplated by the legislature.”

Withdrawal of Resolution Plan by a successful Resolution Applicant under IBC

Absence of legislative hook or regulatory tether to enable withdrawal

Analysing the statutory framework governing CIRP and periodic reports of the Insolvency Law Committee, the Supreme Court observed that it is a creditor-driven process. It was noted that IBC is silent on whether a successful Resolution Applicant can withdraw its Resolution Plan. However, the statutory framework laid down under IBC and the CIRP Regulations provide a step-by-step procedure which is to be followed from the initiation of CIRP to the approval by NCLT. It was observed:

“The absence of any exit routes being stipulated under the statute for a successful Resolution Applicant is indicative of the IBC’s proscription of any attempts at withdrawal at its behest.”

The Court took note of the fact that Section 12-A was inserted in IBC by an amendment whereby the Corporate Debtor and CoC have been empowered to withdraw from CIRP, but the Parliament chose not to introduce any explicit provision for allowing any amendment of the Resolution Plan after approval of creditors, let alone a power to withdraw the Resolution Plan at that stage. Keeping in mind the principles for interpretation of economic statutes, the Court opined:

“In the absence of any provision under the IBC allowing for withdrawal of the Resolution Plan by a successful Resolution Applicant, vesting the Resolution Applicant with such a relief through a process of judicial interpretation would be impermissible. Such a judicial exercise would bring in the evils which the IBC sought to obviate through the back-door.”

Terms of Resolution Plan not sufficient to effect withdrawals or modifications after submission to NCLT

The appellant−Resolution Applicants submitted that a Resolution Plan only becomes binding when it is approved by NCLT under Section 31(1) of IBC. Examining the contention that the terms of a Resolution Plan can reserve the right to modify or withdraw its contents after submission to NCLT, the Supreme Court observed:

“The language of Section 31(1) cannot be construed to mean that a Resolution Plan is indeterminate or open to withdrawal or modification until it is approved by the Adjudicating Authority or that it is not binding between the CoC and the successful Resolution Applicant.”

The Court noted that the procedure envisages a 15-day window between submission of Resolution Plan and its approval or rejection by NCLT which clearly indicates that the statute envisages a certain level of finality before the Resolution Plan is submitted for approval to NCLT.  It was observed:

“Even the CoC is not permitted to approve multiple Resolution Plans or solicit [Expressions of Interest] after submission of a Resolution Plan to the Adjudicating Authority, which would possibly be in contemplation if the Resolution Applicant was permitted to withdraw from, or modify, the Plan after acceptance by the CoC.”

Following the decision in AMTEK Auto Ltd. v. Dinkar T. Venkatasubramanian, (2021) 4 SCC 457 which thwarted similar attempt of successful Resolution Applicant relying on certain open-ended clauses in its Resolution Plan to seek a direction compelling CoC to negotiate a modification to its Resolution Plan, the Court opined:

“A Resolution Plan whose implementation can be withdrawn at the behest of the successful Resolution Applicant, is inherently unviable, since open-ended clauses on modifications/withdrawal would mean that the Plan could fail at an undefined stage, be uncertain, including after approval by the Adjudicating Authority”

The Court further explained that the negotiations between the Resolution Applicant and CoC are brought to an end after CoC’s approval. The only conditionality that remains is the approval of NCLT, which has a limited jurisdiction to confirm or deny the legal validity of the Resolution Plan in terms of Section 30(2) of IBC.

Noting that various mandatory timelines have been imposed for undertaking specific actions under CIRP and if the legislature intended to allow withdrawals or subsequent negotiations by successful Resolution Applicants, it would have prescribed specific timelines for the exercise of such an option, the Court said:

“The recognition of a power of withdrawal or modification after submission of a CoC-approved Resolution Plan, by judicial interpretation, will have the effect of disturbing the statutory timelines and delaying the CIRP, leading to a depletion in the value of the assets of a Corporate Debtor in the event of a potential liquidation.”

Based on plain terms of the statute, the Court concluded that NCLT lacks authority to allow withdrawal or modification of Resolution Plan by a successful Resolution Applicant or to give effect to any such clauses in the Resolution Plan. Further, no such power can be vested with NCLT even under its residuary jurisdiction in terms of Section 60(5)(c) as it cannot do what IBC consciously did not provide it the power to do.

Factual Analysis and Observation

Without affecting the legal position formulated, the Supreme Court undertook an analysis on whether the individual Resolution Applicants in the instant appeal had specifically negotiated with the respective CoCs for a right of modification or withdrawal and were contractually entitled to the same.

Ebix Singapore (P) Ltd.

CIRP of Educomp Solutions Ltd. commenced in 2017, in which Ebix Singapore (P) Ltd. emerged as successful Resolution Applicant. Ebix submitted a Resolution Plan which was approved by CoC. Thereafter, the Resolution Plan was filed for approval of NCLT. However, subsequently, owing to investigations into accounts of Educomp, Ebix filed withdrawal application on account of delay in approval. It relied on inter alia the terms of the Resolution Plan that it was valid for six months only.

The Supreme Court rejected the submission since the terms related to the validity of the Resolution Plan for the period of negotiation with CoC and not for a period after the Resolution Plan was submitted for approval of NCLT. It was observed:

“The time which may be taken before the Adjudicating Authority is an imponderable which none of the parties can predict. … Parties cannot indirectly impose a condition on a judicial authority to accept or reject its Plan within a specified time period, failing which the CIRP process will inevitably come to an end.”

Next, Ebix argued that its position changed manifestly because of new allegations which came up in relation to the financial conduct of Educomp. However, in this regard, the Court noted that the Request For Resolution Plan (“RFRP”) directed prospective Resolution Applicants to conduct their own due diligence and independent investigations. Further noting the provisions of Section 32-A of IBC (liability for prior offences, etc.), the Court observed:

“Thus, in any case even if it is found that there was any misconduct in the affairs of Educomp prior the commencement of the CIRP, Ebix will be immune from any prosecution or punishment in relation to the same. The submission that Ebix has been placed in a prejudicial position due to the initiation of investigation into the affairs of Educomp by the CBI and SFIO is nothing but a red herring since such investigations have no bearing on Ebix.”

Lastly, the Court noted that no clause of Ebix’s own Resolution Plans provided them with a right to revise/withdraw their Resolution Plan after its approval by CoC, but before its confirmation by the Adjudication Authority. Also, Ebix did not stop pursuing their Resolution Plan after the expiry of six months, if the true import of the commercial bargain was a withdrawal of the Resolution Plan after six months of its submission.

Kundan Care Products Ltd.

CIRP of Astonfield Renewables (P) Ltd. commenced in 2018. Kundan Care Products Ltd. submitted a Resolution Plan which was approved by CoC. Thereafter, the Resolution Plan was filed for approval of NCLT. Subsequently, Kundan Care moved an application for withdrawal of its Resolution Plan because of uncertainty over the sole Power Purchase Agreement with Gujarat Urja Vikas Nigam Ltd. which formed the entirety of Astonfield’s business. However, the withdrawal application was dismissed by NCLT.

Kundan Care initially relied on terms of their Resolution Plan to argue that it had reserved the right to modify or withdraw the Plan in event of a ‘material adverse change’ which affects Astonfield. However, the Resolution Professional pointed out that the Letter of Intent awarded to Kundan Care clearly stipulated that the submitted Resolution Plan was irrevocable. This was reaffirmed by the terms of RFRP, which indicated that the condition of a ‘material adverse event’ could be exercised only until CoC was considering the Resolution Plan, and not after it had been submitted to NCLT.

Notably, in July 2021, Kundan Care addressed a communication to EXIM Bank and PFCL (lenders) seeking a revision/renegotiation of the resolution amount/financial proposal of Kundan Care for the resolution of Astonfield. Responding to Kundan Care’s request lenders were prima facie agreeable to deliberate the financial proposal seeking revision on resolution plan amount. Pursuant to this, a joint application was filed by the parties for liberty to submit a revised plan before NCLT.

Noting that EXIM Bank and PFCL represent 98% of financial creditors of Astonfield, the Supreme Court allowed the request with directions, deeming it appropriate to exercise its jurisdiction under Article 142 of the Constitution for a one-time relief.

Seroco Lighting Industries (P) Ltd.

CIRP of Arya Filaments (P) Ltd. commenced in 2018. Seroco Lighting Industries (P) Ltd. submitted a Resolution Plan which was ultimately approved by CoC. Thereafter, the Resolution Plan was filed for approval of NCLT. In June 2020, Seroco sought modification of Resolution Plan and the amount on account of economic slowdown caused by COVID-19 pandemic, and subsequently filed applications before NCLT seeking modification of the Resolution Plan on account of the original being filed over eighteen months ago. However, NCLT rejected the application. Seroco relied on terms of their Resolution Plan, but the Supreme Court found there were no such terms in the Plan that could provide such a benefit to Seroco. Concluding, the Court observed:

“This Court is cognizant that the extraordinary circumstance of the COVID-19 pandemic would have had a significant impact on the businesses of Corporate Debtors and upon successful Resolution Applicants whose Plans may not have been sanctioned by the Adjudicating Authority in time, for myriad reasons. But the legislative intent of the statute cannot be overridden by the Court to render outcomes that can have grave economic implications which will impact the viability of the IBC.”

Decision

In such view of the matter, the appeals filed by Ebix and Seroco were dismissed, and parties to the appeal preferred by Kundan Care were directed to abide by the directions issued by the Court in exercise of powers under Article 142 as a one-time relief. [Ebix Singapore (P) Ltd. v. Educomp Solutions Ltd. (Committee of Creditors), 2021 SCC OnLine SC 707, decided on 13-9-2021]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

Appointments & TransfersNews

Collegium approves proposal for appointment of 3 Additional Judges as Permanent Judges in Gauhati HC


Supreme Court Collegium has approved the proposal for the appointment of the following Additional Judges as Permanent Judges in the Gauhati High Court:

1. Shri Justice Soumitra Saikia,

2. Shri Justice Parthivjyoti Saikia, and

3. Shri Justice S. Hukato Swu.


Supreme Court

[Collegium Statement dt. 9-09-021]

Case BriefsSupreme Court

Supreme Court: While deciding a case of a matrimonial dispute where the marriage never took off from the first day and was never consummated and the parties had been living separately from the date of marriage for almost 20 years, a Division Bench of Sanjay Kishan Kaul and Hrishikesh Roy, JJ. passed a decree of divorce in favour of the husband on account of irretrievable breakdown of marriage as well as on account of cruelty committed by the wife.

Background

It appeared that the appellant-husband and respondent-wife had a crash landing at the take-off stage itself. The appellant claimed that the respondent’s view was that she had been coerced into marrying the appellant without giving her consent and left the marriage hall at night. An endeavor by the relatives of the appellant to persuade her on the very next day to live with appellant was also not fruitful. The marriage was never consummated. In such view, the appellant issued a notice seeking divorce on the ground of cruelty under Section 13(1)(i-a) of the Hindu Marriage Act.

Respondent filed a petition for restitution of conjugal rights soon after the issuance of the notice. She submitted that it was the appellant who refused to cohabit with her, since her family was unable to fulfil the appellant’s demand for dowry.

After 5 years, the decree of divorce on the ground of irretrievable breakdown of marriage was granted by the trial court and after 6 days of the said decision, appellant got married the second time. The respondent preferred the appeal and the appellate Court set aside the decree of divorce while allowing the petition for restitution of conjugal rights. Thereafter, the High Court restored the decree of divorce granted by the trial court and each stage of scrutiny took 5 years, and 15 years passed in the litigation. This inter alia posed a question mark on status of second marriage of the appellant.

Later, the respondent filed a review petition on the ground that it was not within the jurisdiction of the High Court or trial court to grant a decree of divorce on the ground of irretrievable breakdown of marriage. The review petition was allowed and the same was assailed in the present appeal.

Analysis, Law and Decision

Supreme Court noted that the ground of irretrievable breakdown of marriage does not exist as a ground of divorce under the Hindu Marriage Act. The Bench referred to several judicial precedents including Hitesh Bhatnagar v. Deepa Bhatnagar, (2011) 5 SCC 234, which opined that courts can dissolve a marriage as irretrievably broken down only when it is impossible to save the marriage, all efforts have been made in that regard, the court is convinced beyond any doubt that there is actually no chance of the marriage surviving, and it is broken beyond repair. The Bench expressed:

“… Living together is not a compulsory exercise. But marriage is a tie between two parties. If this tie is not working under any circumstances, we see no purpose in postponing the inevitability of the situation …”

Incidental question in the present matter was, whether the respondent’s conduct after the initial trigger for divorce amounted to mental cruelty?

Respondent after succeeding before the appellate court lodged a criminal complaint against the appellant under Section 494 of Penal Code, 1860 even though an appeal was pending before the High Court. There were episodes of further harassment by the respondent even at the workplace of the appellant including insulting the appellant in front of students and professors. The respondent also threatened the appellant of physical harm in front of his colleagues.

Supreme Court held that the continuing acts of the respondent would amount to cruelty even if the same had not arisen as a cause prior to the institution of the petition, as was found by the trial court. It was observed:

“The marriage having not taken off from its inception and 5 years having been spent in the Trial Court, it is difficult to accept that the marriage soon after the decree of divorce, within 6 days, albeit 6 years after the initial inception of marriage, amounts to conduct which can be held against the appellant.”

The Court was of the opinion that both the grounds of irretrievable breakdown of marriage and cruelty would favour the grant of decree of divorce in favour of the appellant. Hence, a decree of divorce dissolving the marriage between the parties be passed not only in exercise of powers under Article 142 of the Constitution of India on account of irretrievable breakdown of marriage, but also on account of cruelty under Section 13(1)(i-a) of the Act in light of the subsequent conduct of the respondent during the pendency of judicial proceedings at various stages.

In view of the above discussion, decree of divorce was passed and the marriage stood dissolved. [Sivasankaran v. Sathimeenal, 2021 SCC OnLine SC 702, decided on 13-09-2021]

Case BriefsSupreme Court

Supreme Court: A Division Bench comprising of Hemant Gupta and A.S. Bopanna, JJ. absolved a doctor and a hospital of liability for medical negligence. The Supreme Court said that failure of treatment cannot automatically make the medical professional liable for medical negligence. It was observed:

“Every death of a patient cannot on the face of it be considered as death due to medical negligence unless there is material on record to suggest to that effect.”

Further, explaining that such cases may involve highly technical medical issues, the Court said that mere legal principles and general standard of assessment may not be sufficient. Additionally, the Court considered when can the principle of res ipsa loquitur be invoked in cases of medical negligence.

The instant was a case where the patient, set to undergo a surgery, suffered cardiac arrest after she was administered anaesthesia. Following is a comprehensive report of Supreme Court’s opinion on medical jurisprudence.

Facts and Appeal

One Jasbeer Kaur was admitted in Sun Flag Hospital, Faridabad, to undergo surgery. She was diagnosed with hydronephrosis, her right kidney was severely damaged and left kidney was also diagnosed with stone. On being declared fit for surgery, it was decided that both kidneys could not be operated simultaneously and the less affected, i.e. left kidney, would be operated first. An informed consent of high-risk surgery was obtained from the patient as well as her husband. The surgery on left kidney was a successful operation and patient’s condition improved.

Thereafter, the patient was taken for second surgery. Dr Harish Kumar Khurana administered Pentothal Sodium and Scolin as per the medical practice. An endotracheal tube was inserted in the trachea to give nitrous oxide and oxygen. This standard procedure was also followed during the first surgery but on this occasion, patient’s condition deteriorated, her blood pressure fell and pulse became feeble, cardiac respiratory arrest was noticed, she was put on Boyle’s machine and automatic ventilator. Despite this, the patient passed away.

Patient’s husband and children filed a complaint before the National Consumer Disputes Redressal Commission (“NCDRC”) alleging medical negligence. NCDRC found Dr Khurana and the hospital guilty and directed payment of Rs 17 lakh as compensation. Aggrieved, Dr Khurana and the hospital approached the Supreme Court.

Analysis and Observations

Summarising  judicial opinion on the subject, including the decision in Jacob Mathew v. State of Punjab, (2005) 6 SCC 1 which laid down the ‘test’ for establishing medical negligence, the Supreme Court observed that:

“[It] is clear that in every case where the treatment is not successful or the patient dies during surgery, it cannot be automatically assumed that the medical professional was negligent.”

The Court said that to indicate negligence, there should be material available on record or else appropriate medical evidence should be tendered. In the instant case, apart from the allegations made by the claimants before NCDRC, no medical evidence was tendered to indicate negligence on the part of the doctor, who in fact explained his position relating to medical process to assert that there was no medical negligence. The Court said that conclusion reached by NCDRC appeared to be assumptive without the backing of medical evidence. Whether the manner in which Dr Khurana proceeded to administer anaesthesia amounted to negligence could have been determined only if there was medical evidence on record.

Informed consent of patient

The Court considered the aspect regarding consent for second surgery being taken only of patient’s husband and not the patient herself. On this, the Court noted that during the first surgery, consent of the patient as well her husband was taken. During the second surgery, the patient was recovering from the first surgery and the requirement for second surgery was informed to her. In that circumstance, informed consent was obtained from her husband.

Noting in case sheet

Rejecting NCDRC’s conclusion that Dr Khurana was negligent in not taking care of the noting in the case sheet regarding patient’s poor tolerance to anaesthesia, the Court noted that Dr Khurana was the anaesthetist during the first surgery as well and was thus aware about details of the patient to whom he had administered anaesthesia for the first surgery. The Court held that when it is shown that the earlier surgery was uneventful, in the absence of any medical evidence brought on record to the contrary regarding Dr Khurana’s failure in taking any steps while administering anaesthesia for the second surgery, the observation of poor tolerance in the case sheet by itself could not be assumed as negligence. It was observed:

“To arrive at the conclusion that there was negligence, the medical evidence to point out negligence in administering anaesthesia even in that situation was required to be tendered since the adjudicating authority is not an expert in the field of medicine to record an independent opinion.”

Res ipsa loquitur

Considering the applicability of the principle of res ipsa loquitur (things speak for themselves) to cases of medical negligence, the Court observed:

“The negligence alleged should be so glaring, in which event the principle of res ipsa loquitur could be made applicable and not based on perception.  …

Principle of res ipsa loquitur is invoked only in cases the negligence is so obvious.”

The Court felt that observations contained in NCDRC’s order were in the nature of accepting every allegation made by the claimants as the only version and it was not weighed with the version put forth by the doctors. It was noted that the patient had undergone the same process of being administered anaesthesia for the first surgery which was successful. Though in the second surgery, the patient suffered a cardiac arrest, the subsequent processes with the help of Boyle’s apparatus were conducted and the patient was moved to Critical Care Unit, whereafter subsequent efforts failed. The patient breathed her last after few days. There was no contrary medical evidence placed on record to establish that the situation had arisen due to the medical negligence on the part of the doctors.

Mere legal principles not sufficient

The Court noted that NCDRC reached the conclusion that the appellants failed to clear the Bolam test purely on applying the legal principles, without having any contra medical evidence on record despite observing that the surgeon was a qualified and experienced doctor and also that the anaesthetist had administered anaesthesia to 25,000 patients.

The Court opined that the aspect of poor tolerance to anaesthesia and what should be the gap between the two surgeries was a highly technical medical issue which was also dependant on the condition of the patient in a particular case, which required opinion of an expert in the field. There was no medical evidence based on which conclusion was reached with regard to medical negligence. The Supreme Court observed:

“[M]ere legal principles and the general standard of assessment was not sufficient in a matter of the present nature when the very same patient in the same set up had undergone a successful operation conducted by the same team of doctors.”

Magisterial enquiry report

The claimants had also filed a criminal complaint against the appellants, pursuant to which a magisterial enquiry was conducted. NCDRC placed much reliance on this enquiry report, which according to the Court could not be treated as contra medical evidence as compared to the evidence tendered by the appellants.  It was observed:

“Though the opinion of the civil surgeon who was a member of the committee is contained in the report, the same cannot be taken as conclusive since such report does not have the statutory flavour nor was the civil surgeon who had tendered his opinion available for cross-examination or seeking answers by way of interrogatories on the medical aspects.

Decision

In such view of the matter, the Supreme Court held that NCDRC’s decision could not be sustained. The appeal was accordingly allowed. [Harish Kumar Khurana v. Joginder Singh, 2021 SCC OnLine SC 673, decided on 7-9-2021]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

Op EdsOP. ED.

In Union of India v. Assn. of Unified Telecom Service Providers of India[1] (AGR case), when the telecom service providers (TSPs) knocked the doors of the Supreme Court, the Supreme Court whilst acting as an executive court overlooked the economic impact of its decision and forced the TSPs to suffer an unconscionable bargain at the hands of the executive. Though the judiciary had the opportunity to remedy the wrongs of the State in this case, it is respectfully submitted that the judiciary failed to do so. The Court not only forced the TSPs to suffer in the unconscionable bargain but also modified the payment plan to the further detriment of the TSPs than what was proposed by the Union of India.

In this article, the author seeks to present a critique of the Supreme Court’s decision in AGR case[2] through author’s own analogy of the adjusted gross revenue (AGR) with income tax.

The case

In the erstwhile licence regime, the TSPs were forced to pay a fixed licence fee based on irrationally exorbitant bids; however, the New Telecom Policy of 1999[3] (NTP) introduced a revenue sharing regime, whereby the TSPs were to pay a fixed percentage of their AGR to the Department of Telecommunications, Government of India (DoT) along with an entry fee.[4] The NTP of 1999 was introduced by the Government of India in order to provide some relief to the TSPs. This fixed percentage was initially fixed at 15% and was subsequently reduced to 8%. In order to arrive at the licence fee payable by the TSP, the AGR as per the licence agreement would include revenue generated by licensees from both licensed and unlicensed activities (i.e. revenue from activities for which the telecom licence is not required, for instance, leasing out infrastructure, returns earned on investments).

As per Section 4(1)[5] of the Telegraph Act, 1885, the Union of India owns the exclusive privilege of establishing, maintaining and working telegraphs and may grant a licence to any person to establish, maintain or work a telegraph. In order to expand telecom services, private enterprises were invited to participate in the telecom sector. It is against this backdrop that the TSPs were granted licences to operate in the telecom sector.

The terms and conditions contained in the licence agreement under the NTP defines AGR in Cl. 19.1 read with Cl. 3.2 in Part II[6] thereof, in an inclusive manner and covers within its ambit revenue from licensed as well as non-licensed activities. For instance, it covers revenue on account of sale proceeds of handsets, interest, dividend, revenue from sharing infrastructure and any other miscellaneous revenue. Such a wide definition of revenue for computation of licence fees is unwarranted. When the NTP was introduced, the TSPs reasonably expected to pay a percentage on the revenue generated from licensed activities i.e. activities for which the licence is obtained.

In AGR case[7], the Supreme Court on 24-10-2019 ordered the TSPs to pay the AGR levies along with interest and penalty based on its interpretation of definition of AGR as per DoT within a period of three months. The Union of India after taking into consideration various factors including the adverse impact on the economy submitted before the Supreme Court a payment plan wherein the AGR dues would be recovered over a period of twenty years, and to that end, filed a miscellaneous application seeking extension of time to the TSPs for making the payment.

By its order of 1-9-2020 in Union of India v. Assn. of Unified Telecom Service Providers of India[8] (order in miscellaneous application), the Supreme Court of India without much deliberation granted a period of ten years (i.e. half of the period sought by Union of India) to the TSPs to clear their AGR dues.[9] When the payee (in this case the Government) proposed twenty years for recovery of the dues, there is no reason why a constitutional court must intervene to reduce it to ten years. The Supreme Court overstepped its duty to interpret the law and instead acted like an executive court.[10]

AGR alike income tax

TSPs pay corporate tax at around 30% on their total income (comprising of the gross revenue after allowing various deductions) in the form of income tax to the Government of India and in addition are liable to pay licence fee at 8% to the DoT on the very same revenue generated. Income tax is levied on their total income after allowing various deductions and exemptions from the gross total income, whereas, the licence fee is a levy on their AGR without exemptions and negligible deductions. Thus, these TSPs are liable to pay levy twice on the same income.

In the author’s opinion, the wide definition of AGR seems to have been inspired by the widest definition of income under the Income Tax Act, 1961[11]. It resembles an attempt to include nearly every possible revenue within its ambit, just like the definition of income endeavours to do. The TSPs raised an objection to the definition of AGR as it included income/revenue even from the non-operational activities for computation of licence fees. The irrationality of the wide scope of definition is comprehensible by any man of commercial wisdom.

In the author’s view, on the pretext of licence fee, a form of tax is levied on the income earned by TSPs. Though this tax is levied at a lower rate compared to the corporate tax rate, however, it is levied on a much wider base because unlike the computation of taxable income,[12] while computing AGR, there are negligible deductions and no exemptions available.

AGR — From the standpoint of the Supreme Court

The TSPs inter alia contended before the Supreme Court that the definition of AGR must be understood as per Accounting Standard 9[13] and that revenue from non-licensed activities must not be a part of AGR.

The Supreme Court examined various heads of revenue mentioned in the definition of AGR and came to the conclusion that the definition must be interpreted in its literal sense to include them while computing the AGR. Astonishingly, the TSPs are expected to pay licence fees even on various discounts given to the users. Gains from foreign exchange rate fluctuations are also to be included within AGR for computation of licence fees. The wide definition also includes late fees. It may be contended that the objective behind including late fees within the definition of AGR is that it is also revenue received by the TSPs. However, late fees for delayed payments by the users which have been waived by the TSPs for goodwill, are also included in the computation of AGR. Thus, amount which is not received by the TSPs has also been included in the computation of AGR. It is humbly submitted that these inclusions are unreasonable and prima facie arbitrary.

The Court’s reasoning is based on the premise that there has been a paradigm shift in the telecom policy which is extremely beneficial to TSPs. The TSPs having taken the advantage under the beneficial policy are bound by the terms of the licence agreement, and thus the definition of AGR should be interpreted without any reference to any Accounting Standards which in author’s opinion is sans commercial wisdom. The Supreme Court overlooked the well-settled legal principles of interpretation of commercial contracts and Lord Diplock’s observations in Antaios Compania Navieras SA v. Salen Rederierna, “… if detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business common sense, it must be made to yield to business common sense”.[14]

Unconscionable bargain

A simple analogy of the Supreme Court’s interpretation is that of a tenant occupying a flat in the building being asked to pay a percentage of her total income and expenses as rent for the flat. There is no rational connection between the two.

The TSPs are embroiled in an unconscionable bargain due to the widely worded definition of “AGR” in the licence agreement. Expecting the TSPs to pay a percentage of their gross revenue for a licence to operate telecom services is unreasonable. The terms and conditions of the licence must have nexus to the licensed activities.[15]

Although the Supreme Court observed that the Central Government has the exclusive privilege to carry on telecommunication activities and must get the best price for parting from it, it further noted that the State is a trustee of natural resources and is obliged to hold it for the benefit of its citizens. In effect the Supreme Court observed that the State is a trustee of the natural resources and is duty-bound to hold it for the benefit of the citizens. It remains to be seen which principle of trusteeship would allow the trustee State to make whopping profits for performing its duties. It must be understood, that the objective of introducing the NTP was to create an environment which enables continued attraction of investment in the sector and facilitates the creation of communication infrastructure by leveraging technological development,[16] not revenue generation.

The State has imposed a partnership on the TSPs. The DoT has demanded a certain percentage of the revenue that these TSPs generate from operational and non-operational income. This makes one wonder, why should the TSPs pay a percentage even on their passive income to use a licence to generate operational income?

Economic impact of judicial decisions

In Vodafone International Holdings BV v. Union of India[17] (Vodafone case), the Supreme Court was dealing with a case wherein the Tax Department had made demands worth nearly Rs 12,000 crores from Vodafone International as capital gains tax under the Income Tax Act, 1961. The Supreme Court rightly interpreted the law as it stood on the date of the transaction and arrived at the conclusion that Vodafone International was not liable to pay the demand of nearly Rs 12,000 crores. The judgment was met with appreciation from the investor community around the world. It instilled confidence in the Indian justice system for domestic and foreign investors. It paved the way for believing that even though the executive arm of the State may want to unreasonably extract taxes from the corporates, the judicial arm will undo the wrongs and deliver justice. Nevertheless, this appreciation was short spanned, because the Finance Act of 2012[18] overturned the effect of the judgment and reassured the masses that Indian authorities would not leave any stone unturned for extracting maximum taxes from corporations. However, this episode left an indelible impression in the minds of the investor masses about the Supreme Court.

Per contra, in the present case, the Union of India by the miscellaneous application brought to the notice of the Supreme Court the plausible adverse impact on the telecom sector if sufficient time was not granted to the TSPs to clear the AGR dues. The Union of India took notice of the ramifications of the Supreme Court’s order arising out of its own interpretation of the AGR definition, it accordingly submitted a plan for recovery of the AGR dues. However, the Supreme Court reduced the time period by half without substantiating it with any reason whatsoever. It is respectfully submitted that when the revenue collector (in this case the DoT) had sought a time-frame of twenty years for collection of the AGR dues, the Supreme Court, by reducing the period to ten years has performed an act of judicial encroachment. A reasoned order is one of the most fundamental principles of law, it is humbly submitted that in AGR case[19] the Supreme Court has failed to adhere to the same.

In 2017, in Shivashakti Sugars Ltd. v. Shree Renuka Sugar Ltd.[20] the Supreme Court was dealing with a case wherein the High Court had ordered the closure of a sugar factory for violating the minimum distance requirement. The Supreme Court while quashing the order of closure succinctly highlighted the interplay between economics and law and the need to keep economic considerations in mind while pronouncing judicial decisions. It observed that “… the Court needs to avoid that particular outcome which has a potential to create an adverse effect on employment, growth of infrastructure or economy or the revenue of the State. It is in this context that economic analysis of the impact of the decision becomes imperative.”[21] This judgment is considered as a paradigm case for law and economics in the judicial sphere for considering the economic impact of judicial decisions.

However, while delivering the judgment in AGR case[22], the Supreme Court seems to have ignored the aforesaid observation in its holistic form and seems to have considered only the last factor stated therein, namely, “adverse effect on revenue of the State”.

While hearing the plea of the TSPs disputing the calculation of the AGR dues, the Supreme Court observed that there can be no going back on AGR dues and held that the calculation of the DoT is to be treated as final, adding that there is no scope for any reassessment or recalculation of the said dues.[23] Notwithstanding the analogy between the AGR dues and income tax, even the taxation laws allow the assessees to challenge the demand orders and dispute the calculation of the tax dues. Assessees are heard before the tax demand is finally adjudicated. However, the resistance and the obdurate stand taken by the Supreme Court for not hearing the parties on the disputes for calculation of the AGR dues is in the author’s humble opinion incomprehensible and blatantly in denial of their right to be heard on the issue of computation.

As discussed above, in 2012, when the Supreme Court delivered the judgment in Vodafone case[24], the Government proactively introduced in the Finance Act, 2012 amendments to the Income Tax Act, 1961 to nullify the effect of the Court’s ruling. This was done to enable collection of revenue from Vodafone International. However, when the judgment in AGR case[25] was delivered in late 2019 enabling the Government to collect revenue, the Union of India took cognizance of the economic impact and brought before the Court the huge repercussions of its order and proposed to grant the TSPs some relief by providing them twenty years to make the payment of the AGR dues. However, in this case, the Supreme Court diluted the State’s attempt to ease the situation and granted a half-hearted “relief” to the TSPs.

Conclusion

Although it may be contended that the DoT has a right to maximise its revenue from the collection of licence fees, the manner in which the DoT may levy, demand and collect the licence fees must be reasonable and equitable. The most apt quote to draw guidance from for the aforesaid in context of taxes is,

“The art of taxation consists in so plucking the goose as to get the most feathers with the least hissing.”[26]

Besides the DoT’s role, the indulgence shown by Supreme Court in the matter, as regards the determination of method of calculation of the AGR and also, as regards the determination of the timeline for the clearing of the AGR dues has left legal minds pondering over the rationale of the Supreme Court behind the same. The Supreme Court interpreted the definition of AGR not only without considering its economic impact but also without taking into account the lack of equitable considerations. Further, the Supreme Court frustrated the Union of India’s attempt to give some relief to the TSPs from the burden which it itself had inflicted and offered to aid the State to quickly recover its dues, so to say by aggressively gathering revenue. The foregoing culminates in one conclusion, that is, the process of transformation of the constitutional court into an executive court[27] has progressed over the years.


Advocate and Licentiate Company Secretary.

[1] 2019 SCC OnLine SC 1887.

[2] 2019 SCC OnLine SC 1887.

[3] New Telecom Policy, 1999. <http://www.scconline.com/DocumentLink/nyJLbz00>.

[4]License Agreement for Unified License, Cl. 18 <https://dot.gov.in/sites/default/files/Unified%20Licence_0.pdf> accessed on 14-6-2021.

[5] Telegraph Act, 1885. <http://www.scconline.com/DocumentLink/zjzpZh69>.

[6]License Agreement for Unified License, Cl. 18. <https://dot.gov.in/sites/default/files/Unified%20Licence_0.pdf> accessed on 14-6-2021.

[7] 2019 SCC OnLine SC 1887.

[8] (2020) 9 SCC 748 : 2020 SCC OnLine SC 703.

[9] The arrears accumulated for a period spanning over twenty years.

[10] See Gautam Bhatia, The Fear of Executive Courts (The Hindu, 14-12-2018). <https://www.thehindu.com/opinion/lead/the-fear-of-executive courts/article25735185.ece#:~:text=By%20an%20executive%20court%2C%20I%20mean%20a%20court,compunctions%20in%20navigating%20only%20according%20to%20that%20compass> accessed on 27-11-2020.

[11] Income Tax Act, 1961. <http://www.scconline.com/DocumentLink/7VAV83wS>.

[12] Taxable income under the Income Tax Act, 1961 allows various deductions of expenses and expenses.

[13] As prescribed by the Institute of Chartered Accountants of India.

[14] 1985 AC 191 : (1984) 3 WLR 592 : (1984) 3 All ER 229.

[15] Bharati Hexacom Ltd. v. Union of India, 2017 SCC OnLine Tri 125.

[16] New Telecom Policy, 1999, para 3. <http://www.scconline.com/DocumentLink/nyJLbz00>

[17] (2012) 6 SCC 613.

[18] Finance Act of 2012. <http://www.scconline.com/DocumentLink/83JFSs1j>.

[19] (2020) 9 SCC 748 : 2020 SCC OnLine SC 703.

[20] (2017) 7 SCC 729 : 2017 SCC OnLine SC 602.

[21] (2017) 7 SCC 729 : 2017 SCC OnLine SC 602, para 44.

[22] (2020) 9 SCC 748 : 2020 SCC OnLine SC 703.

[23] (2020) 9 SCC 748 : 2020 SCC OnLine SC 703, para 38.2.

[24] (2012) 6 SCC 613.

[25] 2019 SCC OnLine SC 1887.

[26]Jean-Baptiste Colbert, Louis XIV’s Finance Minister famously declared this quote which meant that, “the largest possible amount of revenue with the smallest possible amount of economic and political damage.”

[27] See Gautam Bhatia, The Fear of Executive Courts (The Hindu, 14-12-2018). https://www.thehindu.com/opinion/lead/the-fear-of-executive courts/article25735185.ece#:~:text=By%20an%20executive%20court%2C%20I%20mean%20a%20court,compunctions%20in%20navigating%20only%20according%20to%20that%20compass> accessed on 27-11-2020.

Case BriefsSupreme Court

Supreme Court: A Division Bench comprising of L. Nageswara Rao and S. Ravindra Bhat, JJ. upheld the arbitral award of Rs 2782.33 crore plus interest made by the Arbitral Tribunal in favour of  Delhi Airport Metro Express (P) Ltd. The Supreme Court reversed the judgment of the Division Bench of the Delhi High Court which had interfered with the Tribunal’s award. While so deciding, the Supreme Court also observed that:

“There is a disturbing tendency of courts setting aside arbitral awards, after dissecting and reassessing factual aspects of the cases to come to a conclusion that the award needs intervention …”

Following is a comprehensive report of Supreme Court’s analysis of law on the subject and merits of the appeal.

Facts and Appeal

Delhi Metro Rail Corporation Ltd. (“DMRC”) entered into a ‘Concession Agreement’ with Delhi Airport Metro Express (P) Ltd. (“DAMEPL”) for design, installation, commissioning, operation and maintenance of the Airport Metro Express Line. Whereas, DMRC itself undertook design and construction of basic civil structure for the project. After completion of work, safety clearance were obtained from the Commissioner of Metro Railway Safety (“CMRS”) and commercial operations ensued in February 2011.

Defects emerged in the civil structure constructed by DMRC. DAMEPL issued a notice on 9-7-2012, asking DMRC to cure the defects in its works within a period of 90 days from the date of the notice, failing which it shall be treated as a breach having Material Adverse Effect on the Concessionaire (DAMEPL) under the Concession Agreement. Thereafter, on 8-10-2012, DAMEPL issued a notice terminating the Concession Agreement as the defects were not cured within 90 days, resulting in an Event of Default under the Agreement.

DMRC invoked arbitration under the Concession Agreement. The Arbitral Tribunal made an award of Rs 2782.33 crore plus interest in favour of DAMEPL. DMRC filed a petition under Section 34 of the Arbitration and Conciliation Act, 1996 for setting aside the arbitral award, which was dismissed by a Single Judge. However, on DMRC’s appeal under Section 37, a Division Bench partly set aside the award passed by the Arbitral Tribunal. Aggrieved, DAMEPL approached the Supreme Court.

Law

Contours of Court’s power to review arbitral awards

Cumulatively reading the UNCITRAL Model Law and Rules, the legislative intent with which the Arbitration and Conciliation Act, 1996 is made, and Sections 5 and 34 of the 1996 Act, the Supreme Court noted that judicial interference with the arbitral awards is limited to the grounds in Section 34. While deciding applications filed under Section 34 of the Act, courts are mandated to strictly act in accordance with and within the confines of Section 34, refraining from appreciation or re-appreciation of matters of fact as well as law. The Court relied on SsangYong Engg. & Construction Co. Ltd. v. NHAI, (2019) 15 SCC 131.

The Court said that the limited grounds available to courts for annulment of arbitral awards are well known to legally trained minds. However, the difficulty arises in applying the well-established principles for interference to the facts of each case that come up before the courts. It was observed:

“There is a disturbing tendency of courts setting aside arbitral awards, after dissecting and reassessing factual aspects of the cases to come to a conclusion that the award needs intervention and thereafter, dubbing the award to be vitiated by either perversity or patent illegality, apart from the other grounds available for annulment of the award.”

The Court was of the opinion that such approach would lead to corrosion of the object of the 1996 Act and the endeavours made to preserve this object, which is minimal judicial interference with arbitral awards.

Patent illegality

Observing that ‘patent illegality’ should be illegality which goes to root of the matter, the Court explained that:

“[E]very error of law committed by the Arbitral Tribunal would not fall within the expression ‘patent illegality’. Likewise, erroneous application of law cannot be categorised as patent illegality. In addition, contravention of law not linked to public policy or public interest is beyond the scope of the expression ‘patent illegality’.”

The Court restated that permissible grounds for interference with a domestic award under Section 34(2-A) on the ground of ‘patent illegality’ is when the arbitrator takes a view which is not even a possible one, or interprets a clause in the contract in such a manner which no fair-minded or reasonable person would, or if the arbitrator commits an error of jurisdiction by wandering outside the contract and dealing with matters not allotted to them. An arbitral award stating no reasons for its findings would make itself susceptible to challenge on this account. The conclusions of the arbitrator which are based on no evidence or have been arrived at by ignoring vital evidence are perverse and can be set aside on the ground of patent illegality. Also, consideration of documents which are not supplied to the other party is a facet of perversity falling within the expression ‘patent illegality’.

Public policy

Next, Section 34(2)(b) refers to the other grounds on which a court can set aside an arbitral award. If a dispute which is not capable of settlement by arbitration is the subject-matter of the award or if the award is in conflict with public policy of India, the award is liable to be set aside. The Court summarised that the award would be in conflict with public policy of India only when it is induced or affected by fraud or corruption or is in violation of Section 75 or Section 81 of the 1996 Act, if it is in contravention with the fundamental policy of Indian law or if it is in conflict with the most basic notions of morality or justice. It was explained:

“[C]ontravention of a statute only if it is linked to public policy or public interest is cause for setting aside the award as being at odds with the fundamental policy of Indian law.”

Conscience of the court and Morality

Lastly, the Court said that if an arbitral award shocks the conscience of the court, it can be set aside as being in conflict with the most basic notions of justice. It was observed:

“The ground of morality in this context has been interpreted by this Court to encompass awards involving elements of sexual morality, such as prostitution, or awards seeking to validate agreements which are not illegal but would not be enforced given the prevailing mores of the day”

Merits

Validity of the termination notice and consequences of the CMRS sanction

Actual date of termination

By referring to certain paragraphs of the award, the High Court held that there was confusion in the mind of the Arbitral Tribunal relating to the actual date of termination, which would have a material bearing on the exegesis of the article in the Concession Agreement dealing with termination by DAMEPL for DMRC Event of Default. However, the Supreme Court disagreed. Reading the arbitral award as a whole, the Supreme Court found that there was no ambiguity in the findings of the Arbitral Tribunal regarding the time given for curing the defects and the effective date of termination of the Concession Agreement.

Period for curing the defects

An ancillary issue arose that whether the period for curing the defects was 180 days or 90 days under the Concession Agreement. On this, the Court was of the view that construction of a provision of the Concession Agreement was within the domain of the Arbitral Tribunal. The view taken by the Arbitral Tribunal that the defects had to be cured within 90 days from the date of the cure notice, failing which DAMEPL was entitled to terminate the Concession Agreement, was a possible interpretation of the relevant article.

Certificate of fitness

Next, the High Court had held that the Tribunal committed a grave error in ignoring the CMRS fitness certificate as the Tribunal lost sight of the binding nature of the certificate. On the basis of the certificate issued by the Commissioner, DMRC argued that all the defects pointed out by DAMEPL had been cured.

The Supreme Court said that the certificate by itself could not come to the rescue of DMRC to show that the defects pointed out by DAMEPL were cured within the expiry of 90 days from 9-7-2012. The Court held that the Arbitral Tribunal’s finding that the defects were not cured is one of fact which could not be interfered with by the court. The issue before the Tribunal was whether the defects were cured within 90 days from the notice dated 9-7-2012 and the fitness certificate dated 18-1-2013 was not relevant for deciding the said issue.

The Supreme Court concluded that the High Court’s judgment that award of the Arbitral Tribunal suffered from patent illegality and shocks the conscience of the court,  was erroneous. It was observed:

“The members of the Arbitral Tribunal, nominated in accordance with the agreed procedure between the parties, are engineers and their award is not meant to be scrutinised in the same manner as one prepared by legally trained minds. In any event, it cannot be said that the view of the Tribunal is perverse. …

As the arbitrator is the sole judge of the quality as well as the quantity of the evidence, the task of being a judge on the evidence before the Tribunal does not fall upon the court in exercise of its jurisdiction under Section 34.”

Adjusted Equity

Another issue arose as to the computation of Termination Payment. The Arbitral Tribunal focused inter alia on ‘Adjusted Equity’ as one of the components of Termination Payment. The Tribunal had held that the expression ‘Adjusted Equity’ should include the money brought in by DAMEPL’s promoter and concluded that an amount of Rs 611.95 crore was used as expenses, thereby qualifying as ‘Concessionaire’s Capital Costs’ under the Concession Agreement. Whereas, the High Court concluded that the expression ‘Adjusted Equity’ in the Concession Agreement should be calculated by taking into account only the share capital of DAMEPL.

Having carefully examined the Concession Agreement and the findings recorded by the Tribunal and the High Court, the Supreme Court found that opinion of the Tribunal on inclusion of Rs 611.95 crore under ‘Adjusted Equity’ was a reasonable and possible view. It was observed:

“Even assuming the view taken by the High Court is not incorrect, we are afraid that a possible view expressed by the Tribunal on construction of the terms of the Concession Agreement cannot be substituted by the High Court. This view is in line with the understanding of Section 28(3) of the 1996 Act as a ground for setting aside the arbitral award …”

The Court also did not find any fault with the Tribunal’s approach that the understanding of the term equity as per the Companies Act, 2013 was not relevant for the purposes of determining ‘Adjusted Equity’ in light of the express definition of the term in the Concession Agreement. It was observed:

“As has been held in SsangYong Engg. & Construction Co. Ltd. v. NHAI, (2019) 15 SCC 131, mere contravention of substantive law as elucidated in Associate Builders v. DDA, (2015) 3 SCC 49 is no longer a ground available to set aside an arbitral award.”

In view of the foregoing, the Supreme Court set aside the findings of the High Court and upheld the award by the Arbitral Tribunal in respect of computation of Termination Payment.

Decision

Having concluded as above, the Supreme Court allowed the appeal filed by DAMEPL and set aside the judgment of the Division Bench of the High Court.

It may also be noted that the Supreme Court simultaneously considered a separate appeal filed by DMRC against the same judgment of the High Court in relation to issues which went against DMRC such as refusal to grant relief of specific performance of the Concession Agreement, waiver of termination notice due to DAMEPL’s conduct, etc. However, the Court did not find merit in any of the submissions advanced by DMRC in its appeal, which was consequently dismissed. [Delhi Airport Metro Express (P) Ltd. v. DMRC, 2021 SCC OnLine SC 695, decided on 9-9-2021]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: While addressing the matter wherein a passenger suffered loss and agony due to delay in the arrival of train, M.R Shah and Aniruddha Bose, JJ., observed that,

These are the days of competition and accountability. If public transportation has to survive and compete with private players, they have to improve the system and their working culture.

Background

Aggrieved by the National Consumer Disputes Redressal Commission, State Commission and District Forum, wherein the    Northern Western Railway and another were directed to pay to the complainant – respondent Rs 15,000 for taxi expenses, Rs 10,000 towards booking expenses along with Rs 5,000 towards mental agony and litigation expenses. Aggrieved by the same, present special leave petition was preferred.

Respondent had booked 4 tickets from Northern Western Railway along with the return reserved tickets.

Respondent’s case was that, he had to take flight at 12:00 noon from Jammu to Srinagar in SpiceJet. But the said train did not reach in time and it was delayed by 4 hours and reached Jammu at 12:00 noon.

Since the Jammu Airport was at a far distance from Jammu Railway Station and they had to reach the airport at least two hours prior to the departure of the flight, they could not reach in time and missed the flight.

Further, the respondent had to book private taxi to reach Srinagar.

In view of the above background, respondent claimed a loss of Rs 9,000as airfare, Rs 15,000 towards taxi hire charges for going from Jammu to Srinagar, Rs 10,000 on account of booking of boat in Dal Lake.

Analysis, Law and Decision

Supreme Court opined that in view of the facts and circumstances of the case, impugned orders awarding compensation to the complainant do not warrant any interference.

No evidence was led by the railways explaining the delay and/or late arrival of train at Jammu. The railways were required to lead the evidence and explain the late arrival of train to establish and prove that delay occurred because of reasons beyond their control. 

At least the railways were required to explain the delay which the railways failed.

Bench held that unless and until the evidence was laid explaining the delay and it was established and proved that delay occurred which was beyond their control and/or even there was some justification for delay, the railway is liable to pay the compensation for delay and late arrival of trains.

Hence, in the present matter, the decision of the Commission’s observing that there was a deficiency in service leading to the railways being liable to pay the compensation to the passenger – complainant was rightly observed.

While concluding the matter and stating that no interference of this Court is called for, Bench emphasized that,

Citizen/passenger cannot be at the mercy of the authorities/administration. Somebody has to accept the responsibility.

 [Northern Western Railway v. Sanjay Shukla, Special Leave Petition (C) No. 13288 of 2021, decided on 6-09-2021]

Case BriefsSupreme Court

Supreme Court: A three-Judge Bench of L. Nageswara Rao, B.R. Gavai and B.V. Nagarathna, JJ. is considering a writ petition seeking to declare that the right to access to virtual courts through video conferencing is a facet of fundamental rights. The Court has issued notice to various parties including the Bar Council of India, the Supreme Court Bar Association and several High Courts.

A writ petition under Article 32 of the Constitution of India has been filed by the All India Association of Jurists and another. The All India Association of Jurists is an association of more than 5000 lawyers practicing in different States of the country, including various High Courts and the Supreme Court. The petitioner claims to seek intervention of the Supreme Court “to effectuate the right of access to justice, and the freedom of practicing the noble profession of law irrespective of geographical location“.

The petition lays challenge to an order dated 16-8-2021 passed by the Registrar General of the Uttaranchal High Court through which access to virtual courts has been proscribed by directing that no such request shall be entertained. The petition further states that a copy of the said letter has been forwarded to the Registrar Generals of all the High Courts, with an anticipation of issuance of similar such orders by other High Courts of the country.  The petitioner claims that the impugned order of the Uttaranchal High Court is “death knell” for the very idea of virtual courts, an accessible, affordable justice in the country being propagated by the E-Committee of the Supreme Court.

The petition also seeks to raise the issue that large number of advocates of the petitioner Association as also those across the country are compelled to appear physically before many courts of the respective High Courts, in view of commencement of physical hearing in the High Courts.

In such circumstances, the petition is filed seeking an appropriate writ, order or direction for:

(i) Declaring that the right to access to virtual courts through video conferencing for attending and participating in the conduct of any case proceeding is facet of fundamental right guaranteed under Part III of the Constitution of India;

(ii) Quashing the impugned order dated 16-8-2021 issued by the Registrar General of the Uttaranchal High Court prohibiting access to virtual courts through video conferencing;

(iii) Ensuring that lawyers and counsels are not denied in any manner the benefit of attending any category/class of proceedings being conducted before High Courts, only on the ground that they have opted for virtual court hearing instead of physical mode of hearing.

By the instant order, the Supreme Court allowed the petitioner’s request to implead the Bar Council of India and the Supreme Court Bar Association as and among respondents. A notice has been issued returnable on 4-10-2021. [All India Association of Jurists v. Uttaranchal High Court, WP (C) No. 941 of 2021, dated 6-9-2021]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.


Advocates before the Court:

For the Petitioner (s): Siddarth Luthra, Sr. Advocate

Siddarth R Gupta, Advocate

Sriram P., AOR

Shubhangi Jain, Advocate

Prerna Robin, Advocate

For the Respondent (s): Pradeep Kumar Yadav, Advocate

Abhay Singh Yadav, Advocate

Sanjeev Malhotra, AOR

Mukesh K. Giri, Advocate

Case BriefsSupreme Court

“There is no fetter on the power of the Central Government in appointing the Director of Enforcement beyond a period of two years.”

Supreme Court: A Division Bench of L. Nageswara Rao and B.R. Gavai, JJ. upheld the Central Government’s order extending the tenure of the incumbent Director of Enforcement Sanjay Kumar Mishra for a period of one year. The Supreme Court held that there is no fetter on the power of the Central Government in appointing the Director of Enforcement beyond a period of two years. Interpreting Section 25 of the Central Vigilance Commission Act, 2003 which prescribes the minimum tenure of the Director of Enforcement, the Court observed:

“The words ‘not less than two years’ cannot be read to mean ‘not more than two years’ and there is no fetter on the power of the Central Government in appointing the Director of Enforcement beyond a period of two years.”

Facts

The instant writ petition in the public interest was filed by ‘Common Cause’ for quashing the order dated 13-11-2020 issued by the Union of India, which extended the tenure of the incumbent Director of Enforcement Sanjay Kumar Mishra by one year, i.e. from two years to three years. Initially, Mishra was appointed as Director of Enforcement on 19-11-2018 for a period of two years.

The petitioner’s grievance was that extension of Mishra’s tenure to three years is contrary to Section 25 of the Central Vigilance Commission Act, 2003 (“CVC Act”). It was averred that Mishra attained the age of superannuation in May 2020 and as such he was not holding any requisite post equivalent or above the rank of Additional Secretary to the Government of India on 13-11-2020 when his tenure was extended. Therefore, Mishra was not eligible to be considered for extension of service as Director of Enforcement.

The contentions made by the petitioner were refuted by the Union of India and its submissions were adopted by the Central Vigilance Commission.

Analysis and Observations

Section 25 of the Central Vigilance Commission Act

Considering Section 25 of the CVC Act, the Supreme Court noted that Section 25(d) provides that a Director of Enforcement shall continue to hold office for a period of not less than two years from the date on which he assumes the office. Extension or curtailment of tenure is provided in Section 25(f) in respect of officers other than that of the Director of Enforcement. The procedure and other conditions of service mentioned in Section 25 are notwithstanding anything contained in any other law for the time being in force.

Initial appointment of Mishra as Director of Enforcement

The petitioner relied on Rule 56 of the Fundamental Rules, which provides that every Government servant shall retire on attaining the age of 60 years. Posts for which there can be extension beyond 60 years have been specifically mentioned in the rule and the post of Director of Enforcement is not mentioned in the rule for which extension of service can be given.

Noting that the non-obstante clause in Section 25 gives overriding power to the said provision notwithstanding anything contained in any other law for the time being in force, the Supreme Court observed:

“The minimum period of two years which is provided in Section 25 would operate notwithstanding the provisions contained in Fundamental Rule 56(a).”   

The Court concluded the issue holding that the initial appointment of Sanjay Kumar Mishra for a period of two years from 19-11-2018 which extends beyond the date of his superannuation in May 2020 was in accordance with Section 25 of the CVC Act and could not be said to be illegal.

Extension of tenure beyond the period of two years

The petitioner contended that Section 25(d) which postulates a tenure of two years for a Director of Enforcement cannot be interpreted to confer power on the Government to extend the tenure beyond two years.

After examining the earlier decision in Vineet Narain v. Union of India, (1998) 1 SCC 226 and the report of the Independent Review Committee constituted in 1997 to suggest measures for strengthening the agencies involved in anti-corruption activities, the Supreme Court observed:

“There is no ambiguity in Section 25(d) of CVC Act and the words ‘not less than two years’ simply mean a minimum of two years. There is no scope for reading the words to mean not more than two years. Reading such a restriction would be contrary to the recommendations of the Independent Review Committee and the judgment of this Court in Vineet Narain.”

The Court said that curtailment of the tenure of a Director of Enforcement would be detrimental to the interests of officers who are appointed to the post and have service of more than two years before they attain the age of superannuation. It was held:

“Therefore, we hold that a Director of Enforcement can be appointed for a period of more than two years by following the procedure prescribed under Section 25 of the CVC Act.”

Extension of superannuated Director

Next, the Supreme Court considered whether there can be extension of tenure of a person who has been appointed as a Director of Enforcement for a period of two years and who has attained the age of superannuation in the interregnum, i.e. before the expiry of two years.

Having already held that Mishra’s initial appointment could not be termed to be illegal and that he had a right to continue till 18-11-2020 by virtue of his appointment for a period of two years, the Court held:

“For all practical purposes, he should be treated as the Director of Enforcement till that particular date he was holding an office which is not below the rank of an Additional Secretary to the Government of India. Therefore, he was eligible for extension of tenure.”

Source of power for extension of tenure

The Supreme Court then proceeded to deal with the pivotal issue of the source of power for extension of a Director of Enforcement’s tenure. The Union of India submitted that the extension can be ordered by resorting to Section 21 of the General Clauses Act in the absence of specific provision in the CVC Act.

Section 21 provides “power to issue, to include power to add to, amend, vary or rescind notifications, orders, rules or bye-laws“. Following the dictum in State of Punjab v. Harnek Singh, (2002) 3 SCC 481 that the General Clauses Act is a part of every Central Act and has to be read in such Act unless specifically excluded, the Court observed that:

“[T]he rule of construction embodied in Section 21 of the General Clauses Act has reference to the context and subject matter of Section 25 of the CVC Act”

The Court was of the view that as the tenure of appointment of Director of Enforcement is not a maximum period of two years, a person can be appointed as Director of Enforcement for a period of more than two years. It was held:

“If the Government has the power to appoint a person as Director of Enforcement for a period of more than two years, Section 25 of the CVC Act cannot be said to be inconsistent with Section 21 of the General Clauses Act.”

Extension order not vitiated by malice

The petitioner contended that the order of extension of Sanjay Kumar Mishra’s tenure was vitiated by malice in law. Noting that there was no allegation that the power of extension of tenure was exercised for any unauthorised purpose, the Supreme Court rejected the contention. Note was also taken of the justification given by the Union of India for extension of Mishra’s tenure that important investigations are at a crucial stage in trans-border crimes. The decision to extend his tenure was pursuant to the recommendation made by the high-powered committee.

No further extension

Though the Supreme Court upheld the power of the Union of India to extend Director of Enforcement’s tenure beyond the period of two years, it was made clear that extension of tenure granted to officers who have attained the age of superannuation should be done only in rare and exceptional cases. It was observed:

“Reasonable period of extension can be granted to facilitate the completion of ongoing investigations only after reasons are recorded by the Committee constituted under Section 25(a) of the CVC Act. Any extension of tenure granted to persons holding the post of Director of Enforcement after attaining the age of superannuation should be for a short period.”

The Court said that it did not intend to interfere with the extension of the incumbent Director of Enforcement Sanjay Kumar Mishra’s tenure for the reason that his tenure is coming to an end in November 2021. However, it was made clear that no further extension shall be granted to him.

The writ petition was dismissed in the above terms. [Common Cause v. Union of India, 2021 SCC OnLine SC 687, decided on 8-9-2021]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: The bench of L. Nageswara Rao v. BR Gavai*, JJ has set aside the judgment of the Aurangabad bench of the Bombay High Court wherein it was held that the reservation of the Office of Mayor for the Dhule Municipal Corporation for Backward Class (OBC) for a second term, coupled with the fact that there has been no reservation for the Scheduled Caste category, amounted to violation of rotation policy.

Facts

  • The respondent No.1 though belongs to the Scheduled Caste category, was elected as a Councillor to the Dhule Municipal Corporation from the General category. By the Notification dated 27th November 2019, the Office of Mayor in the said Corporation was earmarked for Backward Class of Citizens for the next term of two and half years commencing from June, 2021.
  • Respondent number 1 challenged the aforementioned Notification on the ground that from the year 2003 onwards, the Office of Mayor in the said Corporation was reserved for Backward Class category on various occasions, but was not reserved for Scheduled Caste category.
  • Bombay High Court held that the reservation of the Office of Mayor for the Dhule Municipal Corporation for Backward Class (OBC) for a second term even without any reservation for Scheduled Caste category.
  • The said judgment was challenged on the ground that the import of Clauses (d) and (e) of sub­rule (2) of Rule 3 of the Maharashtra Municipal Corporations (Reservation of Offices of Mayors) Rules, 2006 was not considered by the High Court while deciding the matter.

Analysis

Interpreting a Statute

Explaining the rules for interpreting a Statute, the Court said,

“… the Court will have to prefer an interpretation which makes the Statute workable. The interpretation which gives effect to the intention of the legislature, will have to be preferred. The interpretation which brings about the effect of result, will have to be preferred than the one which defeats the purpose of the enactment.”

It is the duty of the Court to construe the Statute as a whole and that one provision of the Act has to be construed with reference to other provisions so as to make a consistent enactment of the whole Statute.

“It is the duty of the Court to avoid a head-on clash between two sections and construe the provisions which appear to be in conflict with each other in such a manner so as to harmonise them.”

Further, while interpreting a particular statutory provision, it should not result into making the other provision a “useless lumber” or a “dead letter”. While construing the provisions, the Court will have to ascertain the intention of the law¬making authority in the backdrop of dominant purpose and   the underlying intendment of the Statute

The Legislative Intent behind the Rules in question

The impugned Rules are mechanism for giving effect to the constitutional mandate under Article 243T of the Constitution of providing reservation for Scheduled Castes and Scheduled Tribes and the   enabling provision for providing reservation for Backward Class of Citizens in proportion to their population.

The intent and the dominant purpose of Rule 3 of the said Rules is to provide reservation to Scheduled Castes, Scheduled Tribes, Backward Class of Citizens and Women and further to ensure that there is no  repetition  of reservation  of  a particular category  in a particular Corporation.

The intent of the said Rules is to give effect to the reservation policy while ensuring that reservations are not repeated in particular Corporations and at the same time in all the Corporations, there shall be reservation, at some point of time, for all the eligible categories by rotation.

The legislative intent is to exclude the Corporations which were earlier reserved for a particular category until all the categories are provided reservation.  However, while doing so, the Court will have to interpret Rule 3 of the said Rules in such a manner that this scheme is made workable and not frustrated.

True import of the Rules in question

The Court took note of the dominant purpose and the legislative intent of the said Rules which is to provide reservation in proportion of the population of such categories in the Municipal areas and also to ensure that while all the eligible Corporations get reservation at some point of time for the different categories, at the same time there would be no repetition of reservation until the rotation   is complete. However, while doing so, the number of seats reserved for a particular category also cannot be ignored.

“… the total number of seats reserved for Scheduled Castes are 3 whereas for Backward Class of citizens, they are 7. Sub-rule (2) of Rule 3 of the said Rules prescribes the manner in which the seats are to be allotted to be reserved for various categories including women. Clause (a) thereof provides that it shall be done by notification in the Official Gazette by allotment of draw of lots. Clause (d) thereof provides that while drawing lots, the offices of Mayors reserved for such category in the earlier years shall be excluded from the draw of lots for those categories. Clause (e) thereof provides that the offices of Mayors to be reserved shall be rotated in   the subsequent terms of office of Mayor to such Corporation, in which no reservation has been made in the previous terms until such reservations are given by rotation to each category.”

Applying the rules of interpretation, the Court noticed that at the first blush, an isolated reading of clause (e) is capable of being interpreted in a manner that until reservation is provided for each category by rotation, the said office cannot be reserved for a category for which it was already reserved. However, if the Rules along with Article 243T of the Constitution and Section 19(1A)[1] of the Maharashtra Municipal Corporations Act, 1949 are read as a whole, then the dominant purpose behind the said Rules appears to be that the reservation as mandated in the Constitution, should be provided for offices of Mayors in the Corporations.

“While doing so, the reservation has to be provided by a draw of lots. It has to be ensured that at any given point of time, the number of offices of Mayors reserved for such categories should not be less than the number determined in accordance with the provisions of sub-rule (1) of Rule 3 of the said Rules.”

Clause (d) of sub-rule (2) of Rule 3 of the said Rules also provides that while drawing lots, the offices of Mayors reserved for such category in the earlier years, shall be excluded from the draw of lots for those categories. The purpose appears to ensure that the reservation is not thrust upon a particular Corporation again and again and all the Corporations, at some point of time, will have the office of Mayor reserved for particular category in accordance with the said Rules.

The Court explained,

“The office of Mayor can be reserved for Scheduled Tribes in only 9 Corporations whereas all the Corporations are eligible for reservation for Scheduled Castes and Backward Class of Citizens.  However, taking into consideration the fact that the number of seats reserved for Scheduled Castes are 3 whereas for Backward Class of Citizens, they are 7 i.e. more than twice,  it is quite probable that the post of Mayor could be reserved for two earlier terms for Backward Class of Citizens and whereas no reservation is provided for Scheduled Castes.”

The Court noticed that a harmonious construction of the said Rules would not lead to a conclusion that the procedure as followed by the State Government in allotting the reservation by draw of lots, would be said to be inconsistent with the scheme of the said Rules.

The Court then took note of the following facts,

  • After excluding 12 Corporations which are already reserved for Scheduled Castes in the earlier years and the one which was reserved for Scheduled Tribes in the first draw of lots, there were 14 Corporations available including the Dhule Municipal Corporation.
  • The said Corporation was also included in the draw of lots for Scheduled Castes. However, in the draw of lots, it could not be reserved for Scheduled Castes.
  • However, insofar as Backward Class is concerned, out of 27 Corporations, 26 Corporations excluding newly created Panvel Corporation were already reserved for Backward Class in the earlier years.
  • As such, the State excluded the 7 Corporations which were immediately reserved for the Backward Class and also excluded the 4 Corporations which were reserved for Scheduled Castes and Scheduled Tribes in the present draw of lots.
  • Coincidentally, in the draw of lots, Dhule Municipal Corporation was one of the 7 Corporations which got to be reserved for the Backward Class.

The Court, hence, held that such a situation is bound to occur in view of the difference in number of seats, reserved for Scheduled Castes and Backward Class of Citizens.

“If the interpretation as placed is to be accepted then unless the post of Mayor is reserved for Scheduled Tribes in all the Corporations to complete the rotation, it will not be possible to provide reservation for the categories which were already reserved earlier.  However, it could be seen that as per the Rules, only 9 Corporations could be reserved for Scheduled Tribes.”

[Sanjay Ramdas Patil v. Sanjay, 2021 SCC OnLine SC 650, decided on 01.09.2021]


[1] “19. Mayor and Deputy Mayor

(1) …

(1A) There shall be reservation for the office of the Mayor   in   the   Corporation,   by   rotation,   for   the Scheduled   Castes,   the   Scheduled   Tribes,   women and   the   Backward   Class   of   citizens,   in   the prescribed manner.”


Judgment by: Justice BR Gavai

Know Thy Judge| Justice B.R. Gavai

Appearances before the Court:

For appellants: Senior Advocate Meenakshi Arora and Advocate Braj Kishore Mishra

For the State of Maharashtra: Advocate Sachin Patil

For Respondent: Advocate Nishant Ramakantrao Katneshwarkar

Case BriefsSupreme Court

Supreme Court: A Division Bench of Uday U. Lalit and Vineet Saran, JJ. held that charges levied by the Kerala State Electricity Board for the use of controlled water by Captive Power Producers (“CPPs”) was perfectly justified. While upholding the Kerala High Court’s judgment which was challenged by the CPPs, the Supreme Court observed:

“Since the private entity or agency would stand to gain from and out of the capital outlay and infrastructure put in place by the State, some reasonable charges for such benefit would naturally be imposed.”  

Facts and Appeal

The instant appeals were preferred by Indsil Hydro Power and Manganese Ltd. and Carborundum Universal Ltd. The business of both the appellants required continues supply of electricity. Both the appellants were Captive Power Producers. A captive power producer is the one who produces electricity for self-consumption. The appellants had set up hydro electric power projects in pursuance of the Policy framed by the Kerala Government allowing private agencies and public undertakings to set up hydel schemes for generation of electricity at their own cost. As per the Policy, matters concerning construction, operation and maintenance of the hydel scheme were to be managed as per the stipulations made by the Kerala State Electricity Board. Clause 14 of the Policy stated: “Royalty for the use of water together with the tax and duties on generation of power as fixed by Government/Board from time to time have to be paid by the agency”.

Attempts on part of the Board to charge royalty/cost component for controlled release of water from the two CPPs in terms of Clause 14 of the Policy led to disputes. Both the CPPs prosecuted separate proceedings before the High Court challenging the demand of royalty. They were granted relief by the Single Judge, but the Division Bench of the High Court reversed the orders of the Single Judge. Aggrieved, the two CPPs approached the Supreme Court.

Analysis and Observations

While dismissing the appeals, the Supreme Court rejected all the contentions advanced by the appellants. The discussion is summarised here:

Location of the projects

The Court considered whether the projects of the two CPPs are located at places where the advantage of controlled supply of water is assured and can be derived.

It was noted that hydro electric projects rely on the force of fall of water from a height to enable the turbines to generate electricity. The supply of water from a large reservoir is one way of ensuring consistent and controlled supply of water.

The Court found that the location of the two projects was such that supply of water meant for powerhouses situated at a height and with larger capacity definitely ensured consistent and controlled supply of water to the two projects located at a lower altitude. Thus, both the projects certainly derived advantage of controlled supply of water as contemplated in Clause 14 of the Policy.

Whether Clause 14 was unconscionable or manifestly arbitrary

Summarising  the judicial opinion on this point, the Court opined that it could not be said that the two CPPs were in a position with lesser bargaining power or were so vulnerable that by force of circumstances they were forced to accept such term as Clause 14. Therefore, Clause 14 of the Policy that stood incorporated in the respective agreements could not be termed unconscionable.

Further, holding that Clause 14 was not manifestly arbitrary, the Court observed that:

“There is nothing arbitrary or unreasonable in having such term in the Policy. Since the private entity or agency would stand to gain from and out of the capital outlay and infrastructure put in place by the State, some reasonable charges for such benefit would naturally be imposed. It was only under such Policy that [the two CPPs] were given permissions to set up their electricity generating units and such term was consciously accepted by them.”

Whether discriminatory treatment meted out to CPPs

Next, the Court considered that even if the relevant term in the Policy was not found to be unconscionable or arbitrary, the question still remain whether any discriminatory treatment was meted out to CPPs in the application of Clause 14 to CPPs alone and not to Independent Power Producers (IPPs).

The Court noted that qualitatively, the CPPs and IPPs have a basic distinction. CPPs produce electricity for self-consumption. As against that, IPPs produce electricity not for self-consumption but for the use of the Board. The electricity generated by IPPs becomes part of the grid to be supplied by the Board to its consumers like electricity produced by the generating units or power houses of the Board. It was observed:

“If the charges towards controlled supply of water were to be imposed uniformly for CPPs and IPPs, the effect would be that the electricity supplied through IPPs to common consumers and general public would necessarily have an additional burden or load towards proportionate element of water charges. In these circumstances, if the Board decided not to apply Clause 14 of the Policy in case of all IPPs, such decision would not be termed as discriminatory.”

Absence of jurisdiction and ancillary issues

The appellants submitted that royalty or charges for controlled supply of water would be nothing but compulsory exaction and in the absence of any statutory sanction behind such imposition, the actions on part of the Board would be without jurisdiction.

Discussing various judicial precedents on distinction of tax and fee, and connotation of the expression ‘royalty’, the Court said:

“[T]he expression ‘Royalty’ has consistently been construed to be compensation paid for rights and privileges enjoyed by the grantee and normally has its genesis in the agreement entered into between the grantor and the grantee. As against tax which is imposed under a statutory power without reference to any special benefit to be conferred on the payer of the tax, the royalty would be in terms of the agreement between the parties and normally has direct relationship with the benefit or privilege conferred upon the grantee.”

The Court concluded that whatever be the nomenclature, the charges for use of controlled release of water were for the privilege enjoyed by the two CPPs. The basis for such charges was directly in terms of, and under the arrangement entered into between the parties, though, not referable to any statutory instrument.

Lastly, the Court held that the submission that it was compulsory exaction and thus assumed the characteristics of a tax, was completely incorrect and untenable. It was a pure and simple contractual relationship between the parties.

Decision

In such view of the matter, the Supreme Court held that the charge was perfectly justified. Accordingly, the appeals were dismissed. [Indsil Hydro Power & Manganese Ltd. v. State of Kerala, 2021 SCC OnLine SC 665, decided on 6-9-2021]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: A Division Bench of Dr Dhananjaya Y. Chandrachud and M.R. Shah, JJ. found itself at pains to note that the order passed by the Allahabad High Court granting bail to murder convicts lacked total clarity as to which part of the judgment and order could be said to be submissions and which part could be said to be the findings/reasonings. Observing that writing judgment is an art, though it involves skilful application of law and logic, the Supreme Court said:

“It is very unfortunate that by this judgment, we are required to observe the importance of judgment; purpose of judgment and what should be contained in the judgment.”

The discussion by the Court on the importance, purpose, contents and elements of a judgment is delineated pointwise here:

Importance of a judgment

–> “Judgment” means a judicial opinion which tells the story of the case; what the case is about; how the court is resolving the case and why.

–> “Judgment” is defined as any decision given by a court on a question or questions or issue between the parties to a proceeding properly before court. It is also defined as the decision or the sentence of a court in a legal proceeding along with the reasoning of a judge which leads him to his decision.

–> The term “judgment” is loosely used as judicial opinion or decision.

Purpose of a judgment

–> There are four purposes for any judgment that is written: (i) to spell out judges own thoughts; (ii) to explain your decision to the parties; (iii) to communicate the reasons for the decision to the public; and (iv) to provide reasons for an appeal court to consider.

–> It is not adequate that a decision is accurate, it must also be reasonable, logical and easily comprehensible. The judicial opinion is to be written in such a way that it elucidates in a convincing manner and proves the fact that the verdict is righteous and judicious.

What should be contained in a judgment

–> What the court says, and how it says it, is equally important as what the court decides.

–> Every judgment contains four basic elements and they are: (i) statement of material (relevant) facts; (ii) legal issues or questions; (iii) deliberation to reach at decision; and (iv) the ratio or conclusive decision.

–> A judgment should be coherent, systematic and logically organised. It should enable the reader to trace the fact to a logical conclusion on the basis of legal principles.

–> A judgment has to formulate findings of fact, it has to decide what the relevant principles of law are, and it has to apply those legal principles to the facts.

–> The important elements of a judgment are: (i) Caption; (ii) Case number and citation; (iii) Facts; (iv) Issues; (v) Summary of arguments by both the parties; (vi) Application of law (vii) Final conclusive verdict.

Disapproving the manner in which the High Court had disposed of the bail applications pending appeals, the Supreme Court observed:

“The judgment replicates the individuality of the judge and therefore it is indispensable that it should be written with care and caution. The reasoning in the judgment should be intelligible and logical. Clarity and precision should be the goal. All conclusions should be supported by reasons duly recorded. The findings and directions should be precise and specific. “

The Court said that it is conscious of the fact that the judges may be overburdened with the pending cases and the arrears, but at the same time, quality can never be sacrificed for quantity. Unless judgment is not in a precise manner, it would not have a sweeping impact. The Court explained that whenever a judgment is written, it should have clarity on facts; on submissions made on behalf of the rival parties; discussion on law points and thereafter reasoning and thereafter the ultimate conclusion and the findings and thereafter the operative portion of the order. There must be a clarity on the final relief granted. A party to the litigation must know what actually he has got by way of final relief. These aspects are to be borne in mind while writing the judgment, which would reduce the burden of the appellate court too. Emphasising again on the importance of clear and reasoned judgments, the Supreme Court observed:

“We have come across many judgments which lack clarity on facts, reasoning and the findings and many a times it is very difficult to appreciate what the judge wants to convey through the judgment and because of that, matters are required to be remanded for fresh consideration. Therefore, it is desirable that the judgment should have a clarity, both on facts and law and on submissions, findings, reasonings and the ultimate relief granted. “

What was the case?

The Supreme Court made above discussed observations while setting aside the judgment of the Allahabad High Court which had granted bail to murder convicts pending criminal appeals preferred by them. The instant appeal was filed against that order of the High Court by wife of the deceased.

The convicts were accused of murdering one Kripa Shankar Shukla. The trial court had convicted them for offences under Sections 302 (punishment for murder), 149 (member of unlawful assembly guilty of offence committed in prosecution of common object), 201 (dishonestly making false claim in court) read with Section 120-B (punishment for criminal conspiracy) of the Penal Code, 1860.  Shockingly, during the investigation by the Crime Branch, it was found that the incumbent Sub-Inspector of police tried to save the accused deliberately by recording false facts in his investigation report. Not only this, but the doctor who conducted the post-mortem, deliberately mentioned wrong reason for death of the deceased in order to save the accused.

What was the problem with HC’s judgment?

Having gone through the impugned judgment and order passed by the High Court releasing the convicts on bail, the Supreme Court was at pains to note that the order granting bail lacked total clarity as to which part of the judgment and order could be said to be submissions and which part can be said to be the findings/reasonings. It did not even reflect the submissions on behalf of the Public Prosecutor opposing the bail. The detailed counter affidavit filed by the State was not even referred to. The Supreme Court said that it could not approve the manner in which the High Court disposed of the bail applications.

The Court further opined that even on merits, the impugned order of the High Court was not sustainable. The High Court did not at all appreciate and consider the fact that the trial Court on appreciation of evidence had convicted the accused. It was observed:

“Once the accused have been convicted by the trial Court, there shall not be any presumption of innocence thereafter. Therefore, the High Court shall be very slow in granting bail to the accused pending appeal who are convicted for the serious offences punishable under Sections 302/149, 201 read with 120-B IPC.”

Further, the High Court also failed to note circumstances under which efforts were made to delay/derail the investigation right from the very beginning. The trial Court had convicted even the investigating officer and the doctor who performed the post-mortem for the offences under Section 201 read with Sections 120-B and 218 IPC. The trial court had specifically observed that the accused gave threats repeatedly to prosecution witnesses and villagers and threatened them that if they gave evidence against the accused, they would suffer dire consequences. FIRs were consequently filed. Such conduct ought not to have been taken by the High Court very lightly.

The High Court also did not consider seriousness of the offence and the gravity of accusation against the convicts and their antecedents and conduct. The High Court ought to have noted that when the High Court released the convicts on bail, they had undergone only 8 months sentence against life sentence imposed by the trial court.

Decision

The Supreme Court concluded that the High Court committed a grave error in releasing the convicts on bail pending appeals. Therefore, the Court allowed the instant appeal and set aside the High Court order of granting bail. [Shakuntala Shukla v. State of U.P., 2021 SCC OnLine SC 672, decided on 7-9-2021]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

Legal RoundUpSupreme Court Roundups

“Much indeed is in a name as in this case if we may take the liberty of disagreeing with one of the most famous lines penned down by the Bard of Avon, ‘What’s in a name’.” [Lala v. State of Maharashtra, 2021 SCC OnLine SC 631]


Unmissable Stories


Offending remarks against Advocate

Judges should exercise restraint and avoid unnecessary remarks against conduct of the counsel: SC orders expunging adverse remarks against advocate with 17 yrs of standing at the Bar

A Division Bench of R.F. Nariman and Hrishikesh Roy, JJ. directed that adverse comments recorded against the appellant─advocate in certain judgments of the Uttaranchal High Court be recalled. The Supreme Court found that the offending remarks were unnecessary for deciding the disputes and appeared to be based on personal perception of the Presiding Judge. The requisite degree of restraint and sobriety expected in such situations was also found missing in the offending remarks.

Read more here: https://bit.ly/3DR22uF


Unexplained Bank Transactions

Unexplained bank transactions by Judge | Can Full Court order compulsory retirement despite clean chit by Vigilance Committee? SC explains

“… there were multiple transactions showing deposits and withdrawals of substantial amounts of money, it cannot be said that the Full Court was not justified in taking the view that it did.”

Read more here: https://bit.ly/3npl31x


Age of Superannuation

No work should go unpaid | Whether having different extended age of superannuation for doctors under AYUSH and CHS is justified? SC answers

The principle of ‘No Work, No Pay’ protects employers from paying their employees if they don’t receive service from them.

‘No work should go unpaid’ should be the appropriate doctrine to be followed in these cases where the service rendered by the respondent doctors have been productive both for the patients and also the employer.

 Read more here: https://bit.ly/3jP9DBK


 Land Acquisition Dispute

Supreme Court directs NOIDA to pay Rs 36 crore compensation in a land acquisition dispute for illegally taking over excess land

 The Division Bench comprising of Rohinton Fali Nariman and B.R. Gavai, JJ., settled a decade-old land-acquisition dispute by directing NOIDA (New Okhla Industrial Development Authority) to pay compensation to the aggrieved land-owners who were dispossessed of their land by the authority without any land acquisition proceeding and without the authority of law.

Read more here: https://bit.ly/3zXjQBO


Amendment of Pleadings

No bar to amendment of S. 7 IBC petition until final order; Money decree, recovery certificate in financial creditor’s favour gives fresh cause of action to initiate corporate insolvency resolution process: SC

A Division Bench of Indira Banerjee and V. Ramasubramanian, JJ. held that there is no bar in law to amendment of pleadings in an application under Section 7 of the Insolvency and Bankruptcy Code, 2016 or to filing of additional documents apart from those initially filed, at any time until a final order either admitting or dismissing the application has been passed.

Read more here: https://bit.ly/38NKO32


Premature release of convicts

Premature release of convicts who have undergone imprisonment of more than 14 yrs, and less than 14 yrs: With whom lies the power? SC discusses

“Such power is in exercise of the power of the sovereign, though the Governor is bound to act on the aid and advice of the State Government.”

Read more here: https://bit.ly/2WX8vnc


Amazon-Future Dispute

Emergency arbitrator’s award is referable to S. 17(1) of Indian Arbitration Act; enforceable under S. 17(2): Scopious analysis of landmark SC ruling in favour of Amazon in dispute with Future Retail

“There is nothing in the Arbitration Act that prohibits contracting parties from agreeing to a provision providing for an award being made by an Emergency Arbitrator.  On the contrary, when properly read, various Sections of the Act which speak of party autonomy in choosing to be governed by institutional rules would make it clear that the said rules would apply to govern the rights between the parties, a position which, far from being prohibited by the Arbitration Act, is specifically endorsed by it.”

Read more here: https://bit.ly/3yXJhlC


Preventive Detention

No preventive detention on ground of a possible apprehension of breach of law and order; Supreme Court explains true import of ‘public order’

“When a person is preventively detained, it is Article 21 and 22 that are attracted and not Article 19. Further, preventive detention must fall within the four corners of Article 21 read with Article 22 and the statute in question. To therefore argue that a liberal meaning must be given to the expression ‘public order’ in the context of a preventive detention statute is wholly inapposite and incorrect. On the contrary, considering that preventive detention is a necessary evil only to prevent public disorder, the Court must ensure that the facts brought before it directly and inevitably lead to a harm, danger or alarm or feeling of insecurity among the general public or any section thereof at large.”

Read more here: https://bit.ly/3l3NcZ6


Wilful Breach of Undertaking

Whether wilful breach of undertaking given to Court would amount to Contempt of Court under S. 2(b) of Contempt of Courts Act? SC elaborates

“an undertaking given by a party should be seen in the context in which it was made and (i) the benefits that accrued to the undertaking party; and (ii) the detriment/injury suffered by the counter party.”

Read more here: https://bit.ly/38NMjhG


Order 7 Rule 11(d) CPC

Conundrum of res judicata and rejection of plaint: SC summarises guiding principles for deciding an application under Or. 7 R. 11(d) CPC

A Division Bench comprising of Dr D.Y. Chandrachud and M.R. Shah, JJ. upheld the order of the Karnataka High Court whereby an application under Order 7 Rule 11 CPC (Rejection of plaint) filed by the appellant was dismissed.  While deciding the appeal, the Supreme Court summarised the guiding principles for deciding an application under Order 7 Rule 11(d) of CPC.

Read more here: https://bit.ly/3DV7D2Z


Finance Act

Explained: Explanation 3C of Section 43B of Income Tax Act, 1961 clarificatory or adds a new condition?

The division bench of RF Nariman* and BR Gavai, JJ has explained the object and scope of Explanation 3C of the Section 43B of the Income Tax Act, 1961 and has held that Explanation 3C is clarificatory as it explains Section 43B(d) as it originally stood and does not purport to add a new condition retrospectively.

Read more here: https://bit.ly/3DTVNWS


Foreign Awards

Foreign arbitral award enforceable against non-signatories to agreement; ‘perversity’ no longer a ground to challenge foreign award; tort claims arising in connection with agreement are arbitrable: SC expounds law on foreign awards

A Division Bench comprising of R.F. Nariman and B.R. Gavai, JJ. held that a foreign arbitral award is enforceable against non-signatories to arbitration agreement. The Supreme Court reiterated that grounds for resisting a foreign arbitral award contained in Section 48(1)(a) to (e) of the Arbitration and Conciliation Act, 1996 are to be narrowly construed, and that a non-signatory’s objection cannot possibly fit into Section 48(1)(a). Furthermore, a foreign arbitral award cannot be challenged on the ground of “perversity”.

Read more here: https://bit.ly/3jQ7kOU


Jurisdiction of NCLAT/NCLT

Supreme Court on Jurisdiction of NCLAT & NCLT ||  Does jurisdiction of NCLAT/NCLT extend into entering upon merits of a business decision made by a requisite majority of CoC?

“Jurisdiction of the Adjudicating Authority and the Appellate Authority cannot extend into entering upon merits of a business decision made by a requisite majority of the CoC in its commercial wisdom.”

“Under the Indian Insolvency regime, it appears that a conscious choice has been made by the legislature to not confer any independent equity-based jurisdiction on the Adjudicating Authority other than the statutory requirements laid down under Section 30 (2) of the IBC.”

Read more here: https://bit.ly/38M0VxR


Political Parties | Contempt of Court

SC issues directions to make voter’s right to information more effective; penalises political parties for non-compliance with earlier directions regarding disclosure of criminal antecedents: Read full report

“This Court, time and again, has appealed to the law-makers of the Country to rise to the occasion and take steps for bringing out necessary amendments so that the involvement of persons with criminal antecedents in polity is prohibited. All these appeals have fallen on the deaf ears. The political parties refuse to wake up from deep slumber.”

Read more here: https://bit.ly/3tkXWWL


Circumstantial Evidence

‘Natural human conduct is to first save oneself’: SC acquits woman accused of setting husband’s first wife on fire and coming out unscathed from conflagrant house

“It takes a person a lot of courage or be overdriven with compassion to get back into the house to save somebody else and not doing so may be considered morally wrong for not coming to aid of fellow human being in distress, but cannot be a circumstance to hold a person guilty of a crime which is as serious as murder unless the other circumstances in the chain point to the accused so as to lead to an irresistible conclusion of being guilty.”

Read more here: https://bit.ly/2WXd29c


Government Accommodation

Right to Shelter v. Right to Government Accommodation | 15 years after superannuation, a Govt. Employee still accommodated at Govt. accommodation: Does SC finds this legitimized? Explained crisply

“Government accommodation could not have been allotted to a person who had demitted office. No exception was carved out even in respect of the persons who held Constitutional posts at one point of time.”

Read more here: https://bit.ly/3C47okz


Safe Environment for Legal Fraternity

[In Re: Safeguarding Courts and Judges] Supreme Court directs CBI to file weekly report indicating progress in investigation before Jharkhand HC

While addressing the issue pertaining to the unfortunate demise of the Judicial Officer Uttam Anand, the 3-Judge Bench comprising of N.V. Ramana, CJ., Vineet Saran and Surya Kant, JJ., emphasized the institutional need to create a safe and secure environment for judicial officers and legal fraternity.

Read more here: https://bit.ly/3yS56mj


Payment of Gratuity Act

Whether 2010 amendment in Gratuity Act contemplating Rs 10 lakhs as amount of gratuity would have retrospective effect?

Section 4(5) of the Gratuity Act protects the rights of an employee to receive better terms of gratuity under any award or contract with the employer. The gratuity paid to the appellants on strength of office memorandum would fall in the said sub-section.

Read more here: https://bit.ly/38K5EAh


Limitation Period

Misbranding of Insecticides: SC enunciates law on limitation period for filing complaints in cases of misbranding punishable under S. 29 of Insecticides Act

A Division Bench comprising of Navin Sinha and R. Subhash Reddy, JJ. held that the period of limitation for filing a complaint in case of ‘misbranding’ punishable under Section 29 of the Insecticides Act, 1968 starts from the date of receiving the report from Insecticide Analyst, and there is no reason to seek computation of limitation only from the date of receipt of report from the Central Insecticide Testing Laboratory.

Read more here: https://bit.ly/3BNPphP


Transfer of Property Act

Explained | How to know if a document is a mortgage or a conditional sale?

“A mortgagee spends such money as is necessary for the preservation of the mortgaged property for destruction, forfeiture or sale; for supporting the mortgagor’s title to the property; for making his own title thereto good against the mortgagor; and when the mortgaged property is a renewable lease-hold, for the renewal of the lease, such expenditure incurred by the mortgagee can be added to the cost of improvements in the principal amount due.”

Read more here: https://bit.ly/3BMacCw


Rent Act

Rent Act would not come to the aid of a “tenant-­in-­sufferance” vis-­à-­vis SARFAESI Act due to operation of S. 13(2) read with S. 13(13) of SARFAESI Act: SC

“…Rent Act would not come to the aid of a “tenant­-in-­sufferance” vis­à­vis SARFAESI Act due to the operation of Section 13(2) read with Section 13(13) of the SARFAESI Act.”

Read more here: https://bit.ly/3BSqE43


Overruling of Principles

Overruling versus Reversal: SC explains mere overruling of principles by subsequent judgment will not dilute binding effect of decision inter partes

“Mere overruling of the principles, on which the earlier judgment was passed, by a subsequent judgment of higher forum will not have the effect of uprooting the final adjudication between the parties and set it at naught.”

Read more here: https://bit.ly/3jOw3Di


Will

Can putting thumb impression instead of sign cause adverse presumption on genuineness of deed. What is proper stage to object regarding mode of proof? SC discusses

Key characteristic of thumb impression is that every person has a unique thumb impression. Forgery of thumb impressions is nearly impossible.

Merely because the testator chose to append his thumb impression, adverse presumption on genuineness of the cancellation deed cannot be drawn.

Read more here: https://bit.ly/3tkwVmh


Consumer Rights

 SC takes cognizance of Government’s lackadaisical attitude towards consumer empowerment; Issues directions to conduct a Legislative Impact Study on Consumer Protection Act, 2019

Opining that empowerment of the consumers is the legislative intent behind the Consumer Protection Act, 2019 and the ground reality is quite different as there is little endeavour to translate this Legislative intent into an administrative infrastructure with requisite facilities, members and staff to facilitate the decision on the consumer complaints, the Division Bench of Sanjay Kishan Kaul and Hrishikesh Roy, JJ., stated,

“Statistics can be deceptive but sometimes statistics reveal the truth. The position prevalent in the State Consumer Forums and the District Consumer Forums is best reflected by the statistics of existing vacancies, insofar as the Chairman and the members are concerned.”

 Read more here: https://bit.ly/3lj88LV


 Arrest

 Is officer-in-charge obligated to arrest each and every accused at the time of filing chargesheet? SC answers in negative, holds it is contrary to intent of S. 170 CrPC

A Division Bench of Sanjay Kishan Kaul and Hrishikesh Roy, JJ. has held that if the Investigating Officer does not believe that the accused will abscond or disobey summons, he/she is not required to be produced in custody.

Read more here: https://bit.ly/2Vl9QmK


Murder Convicts

SC sets free three murder convicts finding investigation was done under political pressure to allow real culprits escape by burying the truth fathom deep

A Division Bench of Indira Banerjee and V. Ramasubramanian, JJ. reversed concurrent judgments of the trial court and the Madhya Pradesh High Court whereby three persons were convicted in a murder case and sentenced to life imprisonment. The Supreme Court found that the police investigation in the case was done under political pressure for extraneous considerations, designed to turn the informant and her family members as accused, and allow the real culprits named in the FIR to escape.

Read more here: https://bit.ly/3jN3IgC


MBBS Students

“Can’t see illegal admission sympathetically”. No relief from SC to students admitted to Medical College through private counselling

“Though we have all the sympathies with the students, we will not be in a position to do anything to protect the admissions, which were done in a patently illegal manner.”

Read more here: https://bit.ly/3E5h3Jt


Women in Army

Supreme Court issues interim direction allowing women to participate in NDA exams

“It is stated that it is a 99 years old institution which will complete 100 years next year. The question is whether it completes its 100 years with gender neutrality or not!”

Read more here: https://bit.ly/3l3YX1G


Reservation in Medical Seats

Supreme Court directs Madhya Pradesh HC to immediately decide validity of 100% reservation in more than 600 P.G. medical seats.

The Division Bench of L. Nageswara Rao and B. R. Gavai, JJ., directed the Madhya Pradesh High Court to immediately decided the validity of 100% reservation in more than 600 Post Graduate medical seats in the State of Madhya Pradesh.

Read more here: https://bit.ly/2WUqA5j


Economic Criterion | Creamy Layer

Economic criterion cannot be sole basis of identifying ‘creamy layer’ amongst backward classes: SC strikes down 2016 Notification issued by Haryana Govt.

A Division Bench of L. Nageswara Rao and Aniruddha Bose, JJ., quashed the notification dated 17-8-2016 issued by State Government of Haryana, which specified economic criterion as the sole basis of identification of ‘creamy layer’ (socially advanced sections) among backward classes for excluding them from the purview of benefit of reservation in State services and admission to educational institutions. The Supreme Court reiterated that the basis of exclusion of ‘creamy layer’ cannot be merely economic.

Read more here: https://bit.ly/3hcY2ed


Employees’ Pension Scheme

Is there a cut-off date under Para 11(3) of the Employees’ Pension Scheme? Larger bench to decide. Read why RC Gupta verdict needs to be re-visited

The bench of UU Lalit and Ajay Rastogi, JJ has referred the question as to whether there would be a cut-off date under paragraph 11(3) of the Employees’ Pension Scheme to a larger bench. The larger bench will also decide whether the decision in R.C. Gupta v. Regional Provident Fund Commissioner Employees Provident Fund Organization, (2018) 4 SCC 809 would be the governing principle on the basis of which all these matters must be disposed of.

Read more here: https://bit.ly/2YEJHRr


Public Service

Does State Employer has the choice on who should enter its service? Supreme Court decides

Public service – like any other, pre-supposes that the state employer has an element of latitude or choice on who should enter its service. Norms, based on principles, govern essential aspects such as qualification, experience, age, number of attempts permitted to a candidate, etc. These, broadly constitute eligibility conditions required of each candidate or applicant aspiring to enter public service.

Read more here: https://bit.ly/3DW8Kzd


Criminal Trials

Idiosyncrasies of colloquial terms, used for naming accused, could well be the difference between his conviction and acquittal: Supreme Court

“The practice of translating any relevant document must not differ so significantly across forums and submissions by parties to cast severe aspersions on evidence, which may otherwise be not warranted. Idiosyncrasies of colloquial terms, used for naming an accused, could well be the difference between conviction and acquittal of an accused. “

Read more here: https://bit.ly/3yPYzIT


COVID-19

Extend benefits of welfare schemes not only to children orphaned by Covid-19 but also to children orphaned during Covid-19: Supreme Court

“It is heart-wrenching to note that the survival of so many children is at stake. We are glad that the UOI and the State Governments / Union Territories have announced schemes to provide succour to the children in need. We have no doubt that the authorities concerned would leave no stone unturned to attend to the immediate basic needs of the crestfallen children.”

Read more here: https://bit.ly/3BK7VHS


Appointments


President appoints 9 Supreme Court Judges, including 3 women and former ASG


President appoints the following Judges as Supreme Court Judges:

  • Justice Jitendra Kumar Maheshwari, Chief Justice of the Sikkim High Court
  • Justice Abhay Shreeniwas Oka, Chief Justice of the Karnataka High Court
  • Justice Vikram Nath, Chief Justice of the Gujarat High Court
  • Justice Bela Madhurya Trivedi, Judge, Gujarat High Court
  • Justice M.M. Sundresh, Judge, Madras High Court
  • Justice Chudalayil Thevan Ravikumar, Judge, Kerala High Court
  • Justice Bangalore Venkataramiah Nagarathna, Judge, Karnataka High Court,
  • Justice Hima Kohli, Chief Justice of the Telangana High Court
  • Shri Pamidighantam Sri Narasimha