{"id":167574,"date":"2017-11-13T10:37:26","date_gmt":"2017-11-13T05:07:26","guid":{"rendered":"http:\/\/www.scconline.com\/blog\/?p=167574"},"modified":"2017-11-13T10:37:26","modified_gmt":"2017-11-13T05:07:26","slug":"2017-scc-vol-9-november-7-2017-part-3","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2017\/11\/13\/2017-scc-vol-9-november-7-2017-part-3\/","title":{"rendered":"2017 SCC Vol. 9 November 7, 2017 Part 3"},"content":{"rendered":"

Service Law \u2014 Termination of service \u2014 Judicial review\/Interference by court\/Validity \u2014 Acquiescence:<\/strong> Challenge to order of termination dt. 9-4-1984 after accepting same and seeking fresh appointment on 7-2-1989 by giving undertaking to give up any claim in connection with his past service, not permissible. [State of U.P. v. Meraj Ahmad, (2017) 9 SCC 322<\/a>]<\/p>\n

Hindu Widows\u2019 Re-marriage Act, 1856 (repealed by Act 24 of 1983) \u2014 S. 2 \u2014 Loss of all rights by a widow in her husband\u2019s property or property of lineal successors of her husband on remarriage by her:<\/strong> The said effect of S. 2 was confined to rights which widow was possessing at the time of remarriage. Said provision would not govern or regulate any future succession to which said widow may be entitled under law (like under Hindu Succession Act, 1956 in this case). [Atma Singh v. Gurmej Kaur, (2017) 9 SCC 325<\/a>]<\/p>\n

Family and Personal Laws \u2014 Family Property, Succession and Inheritance \u2014 Will \u2014 Requirements of Valid will\/Validity\/Invalidity of will\/Grant\/Non-grant of Probate\/Letters of Administration:<\/strong> Legitimate suspicions should be completely removed before document is accepted as last will of testator. Further held, presence of such suspicious circumstances naturally tends to make initial onus very heavy and unless it is satisfactorily discharged, court would be reluctant to treat document as last will of testator. [Prakash Soni v. Deepak Kumar, (2017) 9 SCC 332<\/a>]<\/p>\n

Service Law \u2014 Pay \u2014 Pay on Officiating post \u2014 Entitlement to:<\/strong> As respondent was discharging duties of post of Additional Director in addition to duties assigned to post of Joint Director, he was entitled to salary of posts of Joint Director and Additional Director. [State of Punjab v. B.K. Dhir, (2017) 9 SCC 337<\/a>]<\/p>\n

Criminal Procedure Code, 1973 \u2014 S. 311 \u2014 Discretionary power of court under, to summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person already examined:<\/strong> Power under S. 311 CrPC must be exercised with caution and circumspection and only for strong and valid reasons. Recall of a witness already examined is not a matter of course and discretion given to court in this regard has to be exercised judicially to prevent failure of justice. Reasons for exercising said power should be spelt out in order. Delay in filing application for recalling a witness is one of the important factors which has to be explained in the application. [Ratanlal v. Prahlad Jat, (2017) 9 SCC 340<\/a>]<\/p>\n

Specific Relief Act, 1963 \u2014 S. 6 \u2014 Plaintiffs\u2019 claim with respect to possession over suit land \u2014 Tenability:<\/strong> Finding by High Court that plaintiffs were in possession of suit property for past few years and thus, they could not be dispossessed except in accordance with law, not proper as there was nothing on record to show that plaintiffs were such sub-lessee at any point of time and also there was no documentary evidence to show plaintiffs\u2019 possession over suit property. [Rajnarayan Sharma v. Sirnam Sharma, (2017) 9 SCC 351<\/a>]<\/p>\n

Income Tax Act, 1961 \u2014 S. 260-A r\/w S. 52-A of Kerala Court Fees and Suits Valuation Act, 1959 \u2014 Court fee for filing appeal before High Court:<\/strong> S. 52-A of the 1959 Act as inserted by the Amendment Act of 2003, Not retrospective. Relevant date for paying the court fee would be when the proceedings are initiated in the lowest court and not when the appeal is filed in the High Court. [K. Raveendranathan Nair v. CIT, (2017) 9 SCC 355<\/a>]<\/p>\n

Penal Code, 1860 \u2014 S. 307 or S. 324 \u2014 Firearm injury caused without any premeditation:<\/strong> As injury suffered was not on vital part of body and prosecution failed to prove that accused intended to cause death, also accused was a computer engineer having no criminal background, hence, conviction altered from S. 307 to S. 324. [Shyam Sharma v. State Of M.P., (2017) 9 SCC 362<\/a>]<\/p>\n

Income Tax Act, 1961 \u2014 S. 80-P r\/w S. 80-P(4) coming into effect from 1-4-2007:<\/strong> Society giving loan to members as well as general public, not eligible to grant of deduction under S. 80-P(2)(a)(i). Cooperative society giving loan to members, distinguished from cooperative bank. [Citizen Coop. Society Ltd. v. CIT, (2017) 9 SCC 364<\/a>]<\/p>\n

Constitution of India \u2014 Art. 14 \u2014 Classification, if valid:<\/strong> Noti. dt. 16-7-2003 created two categories of vocational teachers viz. degree-holders as Vocational Lecturers with pay scale of Rs 6400-10,640 and diploma-holders as Vocational Masters with pay scale of Rs 5800-9200. Both degree-holders and diploma-holders initially appointed as vocational Masters by common process of selection pursuant to common advertisement, performing same work, having similar responsibilities in same pay scale. It was held that State is under constitutional obligation to assure social order providing social, economic and political justice. If State is giving some economic benefits to one class while denying same to other, then onus of justifying same lies on State, especially when both classes or group of persons were treated as same in past by State. Since Vocational Masters were drawing same salary as Vocational Lecturers before application of 4th Pay Commission, any attempt to curtail their salary and allowances would amount to arbitrariness and is unsustainable in absence of any reasonable justification for same. [State of Punjab v. Senior Vocational Staff Masters Assn., (2017) 9 SCC 379<\/a>]<\/p>\n

Service Law \u2014 Pay \u2014 Pay on officiating post \u2014 Entitlement to:<\/strong> As respondent while working as Senior Assistant given officiating charge of Superintendent Grade II vide order dt. 9-12-2004 and thereafter directed to function as Superintendent Grade I vide order dt. 26-5-2007, he is eligible for higher post and performing duties of higher responsibility attached to said posts. Applicable rules viz. Punjab Civil Services Rules allowed employee manning post covered in schedule to draw higher pay-scale than substantive pay in respect of permanent post, hence, respondent entitled to benefit of pay-scale for officiating post. [State of Punjab v. Dharam Pal, (2017) 9 SCC 395<\/a>]<\/p>\n

Service Law \u2014 Misconduct \u2014 Fiscal misconduct \u2014 Fraud committed for wrongful personal gain:<\/strong> In this case appellant himself admitted that (i) he had issued premium receipts to policyholders without receiving any amount; (ii) such mistake had occurred because of heavy pressure of workload and some family circumstances\/worries; and (iii) requested for lenient action to be taken against him. Enquiry officer findings were that action of appellant was wilful with mala fide intention to perpetrate fraud on respondent LIC for wrongful personal gain. Further, despite appellant virtually admitting charges, respondent adduced evidence to prove charges independently. As departmental enquiry was conducted in accordance with principles of natural justice, hence, charge levelled against appellant proved. Mihir Kumar Hazara Choudhury v. LIC, (2017) 9 SCC 404<\/a>]<\/p>\n

Criminal Procedure Code, 1973 \u2014 S. 360 \u2014 Convicts being first time offenders \u2014 Benefit under S. 360 CrPC \u2014 Extension of \u2014 When warranted:<\/strong> High Court affirmed the conviction of both appellant-accused under S. 7, Essential Commodities Act, 1955 and sentence of three months\u2019 RI with fine, was confirmed. As Appellants do not have antecedents of offender and both of them are first offenders. In such facts and circumstances, appellants should have been dealt with under S. 360 CrPC. Ends of justice would be met by granting benefit of Probation of Offenders Act, 1958 to them. Accordingly, while upholding appellants\u2019 conviction and sentence of fine, sentence of imprisonment awarded against them, set aside and trial court directed to deal with them under S. 360 CrPC. [Dhurukumar v. State of Maharashtra, (2017) 9 SCC 411<\/a>]<\/p>\n

Criminal Procedure Code, 1973 \u2014 S. 482 \u2014 Inherent power under S. 482 CrPC or extraordinary power under Art. 226, Constitution \u2014 When can be exercised by High Court:<\/strong> As the case of initiation of criminal proceedings under Ss. 498-A and 406 IPC by second respondent (complainant) lady against first appellant-accused (her husband) and second appellant-accused (husband\u2019s family member) but no ingredients of Ss. 498-A and 406 IPC made out. Complainant only cited incidents of unhappiness with her husband. It was held that Appellants\u2019 petition under S. 482 CrPC for quashing aforesaid proceedings initiated against them, was wrongly rejected by High Court. Hence, impugned order of High Court set aside and aforesaid proceedings quashed. [Varala Bharath Kumar v. State of Telangana, (2017) 9 SCC 413]<\/a><\/p>\n

Calcutta Municipal Corporation Act, 1980 (59 of 1980) \u2014 Ss. 174(1), (2) and 178 \u2014 Annual rental value of property \u2014 Determination of, when such property comprises both of building and open land:<\/strong> Ss. 174(1) and (2) operate in separate fields and both cannot be clubbed for determination of the gross annual rental value of land or building i.e. both sections have to be applied independently depending upon the fact as to whether the premises are \u201cbuilding with land\u201d or are \u201copen land\u201d. Further, under S. 174(1), the assessing authority is required to take land and building as \u201csingle unit\u201d for determination of its gross annual rent. [Harbanslal Malhotra & Sons (P) Ltd. v. Kolkata Municipal Corpn., (2017) 9 SCC 418]<\/a><\/p>\n

Land Acquisition Act, 1894 \u2014 Ss. 25, 23, 18 and 54 and S. 27 \u2014 Compensation:<\/strong> Court is not precluded from awarding a higher compensation than claimed amount. [Narendra v. State of U.P., (2017) 9 SCC 426<\/a>]<\/p>\n

Service Law \u2014 Appointment \u2014 Eligibility conditions\/criteria \u2014 Clarification\/Removal of anomaly in Rules concerned \u2014 Entitlement to benefit of:<\/strong> There was requirement of clearing Senior Secondary Examination besides possessing diploma as Medical Laboratory Technician in terms of Family Welfare Technical (Group \u2018C\u2019) Service Rules, 2007 for posts of Medical Laboratory Technician (Grade II) advertised on 26-7-2011. However, for getting admission to Medical Laboratory Technician course qualification of only matriculation was prescribed. Considering anomaly High Court directed State to take remedial measures to bring uniformity with respect to educational qualifications and consider appellants for appointment \u201chenceforth\u201d. Pursuant to directions, 2007 Rules repealed removing anomaly and Punjab Health and Family Welfare Technical (Group \u2018C\u2019) Service Rules, 2016 were enforced w.e.f. 2-11-2016. Selections pursuant to advertisement issued in 2011 finalised and selections for advertisement issued in 2016 at final stage. I t was held by the Supreme Court that since no interim protection was granted to appellants regarding finalisation of selection pursuant to advertisement of 2011, no illegality in action of respondents in completing selection process. Appellants were not entitled to be considered for posts advertised in 2011. However, respondents were directed to consider appellants according to their merit against vacancies which were not filled up pursuant to advertisement of 2011 due to non-joining of selected candidates. Appellants were also entitled to be considered for 140 posts advertised in 2016 by relaxing maximum age (if required) in available unfilled vacancies of 2011 advertisement as well as 140 posts in 2016 advertisement. [Sukhwinder Kumar v. State of Punjab, (2017) 9 SCC 438]<\/a><\/p>\n

Limitation Act, 1963 \u2014 Art. 82 or Art. 113 \u2014 Applicability to suits under S. 1-A of the Fatal Accidents Act, 1855:<\/strong> Once a specific period of limitation is referable to any of the entries in Schedule to Limitation Act, 1963, then the residuary Art. 113 cannot be invoked. In thiscase, for a suit for damages under Fatal Accidents Act, 1855, which is an action in tort, Art. 82 provides for a specific period of limitation viz. two years from date of death of deceased. Pt. VII of Schedule in which Art. 82 falls, deals with \u201csuits relating to tort\u201d. Therefore, when a suit for compensation is filed under Fatal Accidents Act, same has to be filed within two years as prescribed under Art. 82 of Limitation Act, 1963. It is also to be noted that there is no particular period of limitation under Fatal Accidents Act, 1855. Therefore, suit under S. 1-A of Fatal Accidents Act, 1855 has to be filed within two years. [Damini v. Jodhpur Vidyut Vitran Nigam Ltd., (2017) 9 SCC 443<\/a>]<\/p>\n

Civil Procedure Code, 1908 \u2014 Or. 8 Rr. 1 & 10 and Ss. 148, 151, 33, 96 and 100 \u2014 Failure of defendants to file written statement despite time granted by court:<\/strong> Appellant-plaintiff filed a civil suit against respondent-defendants for recovery of Rs 45,000 by way of damages. Defendants, though taking appearance in suit, failing to file their written statement despite time granted by court. Trial court declined to grant further time to file written statement. Said court, thus, proceeded to record evidence of plaintiff and finally decreed the suit in favour of plaintiff and against defendants. Aggrieved thereby, defendants filing first appeal, which was dismissed but in second appeal, High Court set aside the judgment\/decree of courts below and remanded the case to trial court for deciding the suit afresh on merits after affording an opportunity to defendants to file written statement. Also, High Court imposed costs of Rs 11,250 on defendants to be paid to plaintiff as a precondition for filing written statement within the extended time granted. Relying upon observations made by Supreme Court in Sangram Singh, AIR 1955 SC 425, the Court held that though time was granted to defendants to file written statement before closing their right with respect thereto, yet the trial court, instead of closing the said right of defendant, should have granted some further time to defendants to file written statement, subject to payment of reasonable amount of costs to plaintiff. Approach adopted by High Court while passing the impugned order was in tune with observations made in Sangram Singh case and did substantial justice to both parties. Hence, not liable to be interfered with. [Siddalingayya v. Gurulingappa, (2017) 9 SCC 447<\/a>]<\/p>\n

Government Grants, Largesse, Public Property and Premises \u2014Allotment\/Grant\/Lease\/Licence of land:<\/strong> Recommendations of Chief Secretary of Government regarding allocation of land for primary and middle school, accepted. [Lovely Bal Shiksha Parishad v. DDA, (2017) 9 SCC 452]<\/a><\/p>\n

Land Acquisition Act, 1894 \u2014 Ss. 23 and 31:<\/strong> Following Baburao, (2017) 11 SCC 333, these appeals also disposed of by directing that 50% of enhanced compensation granted to appellants to be released without security whereas balance of 50% to be released to them on furnishing security to satisfaction of Reference Court. [Vishwanath Nilkanthrao Jadhav v. Maharashtra Industrial Development Corpn., (2017) 9 SCC 456]<\/a><\/p>\n

Protection of Women from Domestic Violence Act, 2005 \u2014 S. 20 \u2014 Monetary relief \u2014 Quantum of interim maintenance reduced by appellate court:<\/strong> In this case aggrieved person sought enhancement of interim maintenance before Supreme Court when her appeal challenging the same still pending before High Court. As matter required examination of authenticity of several documents and also appeal before High Court was pending, directions issued to trial court and High Court for time-bound and expeditious disposal of dispute. [Shalu Ojha v. Prashant Ojha, (2017) 9 SCC 457<\/a>]<\/p>\n

Haryana Value Added Tax Act, 2003 (6 of 2003) \u2014 S. 61 \u2014 Repeal of 1973 Act on 1-4-2003, by 2003 Act \u2014 Effect of, on exercise of suo motu revisional powers under the 1973 Act \u2014 S. 4 of the Punjab General Clauses Act, 1858 and S. 6 of General Clauses Act \u2014 Exclusion of, when a contrary intendment is expressed in the repealing Act:<\/strong> If the repeal is followed by a fresh enactment on the same subject, the applicability of the General Clauses Act would require an examination of the language in the new enactment to see if it expresses a different intention from the earlier Act and if the new Act manifests a different intention, the application of the General Clauses Act will stand excluded. It was held that the repeal and saving clause in S. 61 of the 2003 Act, saved only pending proceedings under the repealed Act. Therefore, the intendment was that matters which stood closed under the 1973 Act had to be given a quietus and could not be reopened. [State of Haryana v. Hindustan Construction Co. Ltd., (2017) 9 SCC 463<\/a>]<\/p>\n

Evidence Act, 1872 \u2014 S. 44 \u2014 Fraud leading to passing of judgment \u2014 Pleadings necessary \u2014 Fraud \u2014 What is:<\/strong> Fraud vitiates all actions taken consequent thereto and as such judgment based on fraud is liable to be set aside. However, before setting aside judgment there has to be definite conclusion that action was fraudulent since every wrong action is not fraudulent action. [Chandro Devi v. Union of India, (2017) 9 SCC 469<\/a>]<\/p>\n

Labour Law \u2014 Recruitment \u2014 Selection Process\/Procedure \u2014 Challenge to, by unsuccessful candidate after taking part in it:<\/strong> Such candidate estopped from challenging selection process and such writ petition is not maintainable. [D. Sarojakumari v. R. Helen Thilakom, (2017) 9 SCC 478<\/a>]<\/p>\n","protected":false},"excerpt":{"rendered":"

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HC | Widow cannot be divested of property inherited from her deceased husband, on remarriage","author":"Bhumika Indulia","date":"July 8, 2019","format":false,"excerpt":"Karnataka High Court: Krishna S Dixit, J. dismissed a petition in limine, filed against an order of the Senior Civil Judge; on the ground of insufficiency of provisions of law and inability of the petitioner to support the legal contentions. The petitioner herein was a party in a final decree\u2026","rel":"","context":"In "Case Briefs"","block_context":{"text":"Case Briefs","link":"https:\/\/www.scconline.com\/blog\/post\/category\/casebriefs\/"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":6711,"url":"https:\/\/www.scconline.com\/blog\/post\/2015\/07\/23\/widow-who-remarries-does-not-lose-rights-over-late-husband-s-property\/","url_meta":{"origin":167574,"position":1},"title":"Widow who remarries does not lose rights over late husband\u2019s property","author":"Sucheta","date":"July 23, 2015","format":false,"excerpt":"Bombay High Court: In a judgment, a bench comprising of VM Kanade and CB Colabawalla, JJ\u00a0 has ruled that a widow, even after she has remarried, has the rights over her former husband's properties. In the present case, the petition was filed by a man against his former sister-in-law who\u2026","rel":"","context":"In "Case Briefs"","block_context":{"text":"Case Briefs","link":"https:\/\/www.scconline.com\/blog\/post\/category\/casebriefs\/"},"img":{"alt_text":"","src":"https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2015\/10\/scc-blog_Page_9.jpg?resize=350%2C200&ssl=1","width":350,"height":200,"srcset":"https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2015\/10\/scc-blog_Page_9.jpg?resize=350%2C200&ssl=1 1x, https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2015\/10\/scc-blog_Page_9.jpg?resize=525%2C300&ssl=1 1.5x, https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2015\/10\/scc-blog_Page_9.jpg?resize=700%2C400&ssl=1 2x, https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2015\/10\/scc-blog_Page_9.jpg?resize=1050%2C600&ssl=1 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