2016 SCC Vol. 4 May 7, 2016 Part 3

scccover 7.05

Civil Procedure Code, 1908 — S. 11 — Res judicata — Conditions for applicability: Both suits should be based on same cause of action. When former suit for possession of entire property was based on a settlement deed, and, subsequent suit for partition claiming plaintiff’s share in property based on her birth right, res judicata not attracted. [Nagabhushanammal v. C. Chandikeswaralingam, (2016) 4 SCC 434]

Constitution of India — Art. 136 — Scope of interference under — Appeal against acquittal — Powers of Supreme Court regarding: Appeal against acquittal has always been altogether on different pedestal from that of appeal against conviction. In appeal against acquittal, where presumption of innocence in favour of accused is reinforced, appellate court would interfere with order of acquittal only when there is perversity of fact and law. However, paramount consideration of Court is to do substantial justice and avoid miscarriage of justice which can arise by acquitting accused who is guilty of offence. A miscarriage of justice that may occur by acquittal of guilty is no less than from conviction of innocent. Appellate court, while dealing with appeal against acquittal, has no absolute restriction in law to review and relook the entire evidence on which order of acquittal is founded. If appellate court, on scrutiny, finds that decision of court below is based on erroneous views and against settled position of law, then interference of appellate court with such order is imperative. Moreover, reason is heartbeat of every conclusion. Without proper reason, conclusion becomes lifeless. [Sadhu Saran Singh v. State of U.P., (2016) 4 SCC 357]

Contract and Specific Relief — Formation of Contract — Consideration: As Government gave benefit of development of land concerned with permission to sub-divide same and use it for commercial purpose and landowner in turn was required to hand over part of land free of cost for public utility purpose like school, hence, development agreement created reciprocal rights and obligations between parties with some object. Impugned clause in development agreement is not opposed to public policy or any law. Appellant landowners being fully aware accepted all terms and conditions of development agreement without any objection while executing the same and also acted upon said development agreement. Hence, allotment of land by Government for senior college under Ss. 40 to 45 of Nagpur Improvement Trust Act, 1936, not interfered with. Further held, transfer of reserved land concerned to NIT was by operation of law (relevant statutory provisions) and not a conveyance. [Narayanrao Jagobaji Gowande Public Trust v. State of Maharashtra, (2016) 4 SCC 443]

Criminal Procedure Code, 1973 — S. 357-A — Victim Compensation Scheme under, for rape victims: National Commission for Women (NCW) Scheme for Rehabilitation of Victims with Special Needs, like handicapped woman in present case who require specialised treatment and care, is in addition to Victim Compensation Scheme under S. 357-A CrPC. All the States and Union Territories directed to make all endeavour to formulate a uniform scheme under S. 357-A CrPC taking into consideration the scheme framed by State of Goa for rape victim compensation. [Tekan v. State of M.P., (2016) 4 SCC 461]

Dental Council (Election) Regulations, 1952 — Regn. 20 — Election process — Court’s interference with: Once election process starts, court’s interference not called for. After commencement of election process of Member of Dental Council of India and upon publication of election programme, person raising dispute regarding such election is entitled to refer dispute to Central Government. Writ petition before High Court relating to such dispute does not lie. [Shaji K. Joseph v. V. Viswanath, (2016) 4 SCC 429]

Land Acquisition and Requisition — Licensory rights: As S. 38 of the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulations, 1966, provided that all the lands in the Union Territory of Andaman and Nicobar Islands vested absolutely in the Government except by a conveyance executed by, or under the authority of the Government and licence were granted to the respondent under S. 146(ii) of 1966 Regulation under Form AG-3, since the said prescribed Form did not stipulate the period of licensing right, the licence in favour of the respondent was a perpetual licence, particularly having regard to the classes of tenants defined under S. 141 of the 1966 Regulation. Further, the right of R-1 could be extinguished only in terms of a notification issued to acquire the land. Further, Ss. 38, 141, 145 and 146 r/w S. 162 of the 1966 Regulation and the prescribed Forms for different purposes, clearly showed that the licensees were also tenure-holders as per the classification under S. 141 of the 1966 Regulation. [Collector (LA) v. Andaman Timber Industries (2016) 4 SCC 406]

Maharashtra Mathadi, Hamal and Other Manual Workers (Regulation of Employment and Welfare) Act, 1969 (30 of 1969) — Ss. 1(4-A) & 5 and Schedule, Entries 4 and 5 r/w Maharashtra Grocery Markets or Shops Unprotected Workers (Regulation of Employment and Welfare) Scheme, 1970: Validity and applicability of 1970 Scheme providing for employment in grocery markets and shops to appellant Supreme Petro-Chem Ltd. Company manufacturing polystyrene, a petrochemical product, upheld. [Pepsico India Holding (P) Ltd. v. Grocery Market & Shops Board, (2016) 4 SCC 493]

Penal Code, 1860 — Ss. 302/149, Ss. 307/149 and Ss. 326/149 — Common object to murder, attempted murder and infliction of grievous injuries — If established: When once, participation of each member of an unlawful assembly of five or more persons is shown, who indulge in an offence as a member of such an unlawful assembly, for the purpose of invoking S. 149, it is not necessary that there must be specific overt act played by each of the member of such an unlawful assembly in the commission of an offence. What is required to be shown is the participation as a member in pursuance of a common object of the assembly or being a member of that assembly, such person knew as to what is likely to be committed in prosecution of any such common object. In the event of the proof of showing of either of the above conduct of a member of an unlawful assembly, the offence, as stipulated in S. 149 IPC, will stand proved. [Susanta Das v. State of Orissa, (2016) 4 SCC 371]

Prevention of Corruption Act, 1988 — Ss. 2(c)(ix) & (iii) r/w S. 21, Penal Code, 1860 — General Manager of a multi-State cooperative bank: Issue that whether General Manager of a multi-State cooperative bank, is a public servant, is to be determined by resort to S. 2(c)(ix) which specifically deals with this issue. It is not necessary to apply definition of “State” under Art. 12 of Constitution, to society concerned. Hence, registered cooperative society, needs to have received some or even a “sprinkling” of financial aid from Government or other authorities for its employees to qualify as “public servant” under 1988 Act, which is a matter to be determined at trial and not under S. 482 CrPC.  Furthermore, meaning of “any aid” under S. 2(c)(ix) needs to be purposively construed as the concept in entirety has to be understood in the backdrop of corruption. [State of Maharashtra v. Brijlal Sadasukh Modani, (2016) 4 SCC 417]

Rajasthan Minor Mineral Concession Rules, 1986 — Rr. 15(1)(a) and 72 — Transfer of mining rights: Sale of entire shareholding of newly formed company to another company, thereby acquirer company becoming holding company and owner of lease rights of mining, impermissible under the Rules without mandatory prior consent of competent authority, as the same amounts to a transfer of mining rights. Company being a distinct entity from shareholders and shareholders and Directors not being owners of assets of company and as mining lease was owned by the company, piercing the veil, transfer of entire shareholding and change of Directors, held, amounted to transfer of mining lease from one company to another. Hence, held, said transaction was void as mandatory prior consent was not obtained from competent authority and State was entitled to cancel lease. [State of Rajasthan v. Gotan Lime Stone Khanij Udyog (P) Ltd., (2016) 4 SCC 469]

Trade Marks Act, 1999 — Ss. 57(4), 21, 23, 2(1)(ze), 124, 125 and 131 — Rectification of register: Provisions of S. 125(1) are attracted only when an application for rectification of register is filed by a defendant who is pleading that registration of said trade mark itself is invalid in a suit filed for infringement of trade mark,  or, by a plaintiff who is questioning validity of registration of defendant’s trade mark and by none else. Rectification application before the filing of such suit may be filed either before Registrar or before Appellate Board. However, if rectification proceedings are instituted after filing of such suit, rectification proceedings can only be taken before Appellate Board and not before Registrar. Lastly, S. 125(1) applies only to applications for rectification of the register, and not at all to the exercise of suo motu powers of the Registrar under S. 57(4). [Jagatjit Industries Ltd. v. Intellectual Property Appellate Board, (2016) 4 SCC 381]

U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (13 of 1972) — S. 21(1)(a) (as amended by Act 17 of 1985) — Eviction: Amended Section 21 provides a statutory deeming presumption in favour of landlords who were serving or retired Indian soldiers or their widows, that need set up by such landlord was for his personal requirement or for benefit of any member of his family. Grant of two years’ time to respondent tenant to vacate suit premises despite accepting appellant army official’s bona fide need of suit shop for starting business for his disabled son is not proper. [Ramesh Chandra Bhandari v. Ram Singh Salal, (2016) 4 SCC 457]

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