2016 SCC Vol. 4 May 14, 2016 Part 4

scccover 14.05

Armed Forces — Promotion — Criteria/Eligibility — Change in policy — Applicability of changed policy: Benefit of gallantry awards was given to respondent for two Selection Boards when Policy in force had no restriction on number of times such benefit could be given but later Policies restricted benefit of gallantry awards to two Selection Boards, by the time respondent officer concerned came to be considered for third promotion, also, one of the earlier posts to which respondent had been promoted becoming a non-selection post, hence, as Respondent, already having been granted benefit of gallantry awards in two Selection Boards, as per the extant Policy could not be granted benefit for the third time. [Union of India v. Chander Ballabh Sharma, (2016) 4 SCC 555]

Constitution of India — Art. 14 — Allocation of property/natural resources/trade outlets: Proper mode of allocation of property/natural resources/trade outlets, is by public auction properly conducted. In this case, allotment of shed concerned for factory purposes was set aside by High Court on grounds that said allotment was made (i) without any public auction or inviting tenders, and (ii) without granting any opportunity of hearing or issuing any show-cause notice to R-1 writ petitioner in compliance with directions issued by High Court in an earlier writ petition, which was filed by appellant and decided by quashing the allotment of shed concerned made in favour of R-1. Held, that allotment in favour of appellant was made after issuing requisite notices to R-1 and affording adequate opportunity to it. Hence, view taken by High Court that no opportunity was given to R-1, was wrong. However, observation made by High Court that the allotment order was issued without any public auction or inviting tenders and as such the same was unsustainable, held, was absolutely correct. Thus, authorities directed to conduct public auction or invite tenders for allotment of shed concerned at present market value. [Metal Seams Co. of India (P) Ltd. v. Avadh Delicacies, (2016) 4 SCC 564]

Criminal Procedure Code, 1973 — S. 154 — Delay in lodging/filing FIR — Explanation by prosecution for — Need of: Delay in setting law into motion by lodging of complaint and registration of FIR is normally viewed by courts with suspicion because there is possibility of concoction and embellishment of the occurrence. So it becomes necessary for prosecution to satisfactorily explain the delay. Object of insisting upon a prompt lodging of report, is to obtain early information not only regarding assailants but also about part played by accused, nature of incident and names of witnesses. [Gajanan Dashrath Kharate v. State of Maharashtra, (2016) 4 SCC 604]

Customs House Agents Licensing Regulations, 1984 — Regns. 12, 13 and 14 — Revocation of licence: Tribunal can dislodge or confirm or modify order of competent authority in appeal. However, when a jurisdiction is exercised, it has to be exercised in accordance with law, regard being had to the factual matrix of the case. Enquiry officer had held that misconduct alleged against respondent that it had allowed unauthorised persons to handle shipping bills stood proved, and accordingly had opined that articles of charge under Regns. 12, 13(b), 13(d), 20(1)(c), 13(n) of Customs House Agents Licensing Regulations, 2004 were established. Enquiry report which formed plinth of order of Commissioner demonstrated that by virtue of transfer of licence in contravention of Regulations, on many an occasion, immense financial loss has been caused to Revenue. Hence, in the present case, discretion exercised by the Tribunal showing leniency and holding that revocation for a period of three years from the date of suspension of licence would be sufficient, held to be inappropriate. [Commr. of Customs v. K.M. Ganatra & Co., (2016) 4 SCC 687]

Employees’ State Insurance Act, 1948 — S. 2(9) — “Employee” — Scope: Definition of “employee” is very wide and includes persons employed for wages in factory or establishment, on any work of, or incidental or preliminary to or connected with work. Thus, casual employees engaged on race days for issue of tickets in Racecourse/Turf Club and employed for part of wage period, are “employees” coming within preview of ESI Act. [Royal Western India Turf Club Ltd. v. Employees’ State Insurance Corpn., (2016) 4 SCC 521]

Excise — Valuation — Receipt of advance payments from buyer — Effect of, on determination of transaction value of goods: Onus is on Revenue to establish by adducing cogent material evidence that advances obtained from a buyer had really been instrumental in depression of sale price. Furthermore, inclusion of notional interest in the assessable value will depend upon the facts of each case. [CCE v. Hindustan National Glass & Industries Ltd., (2016) 4 SCC 675]

Family and Personal Laws — Muslim Law — Gift — Hiba-bil-musha: A hiba of an undivided share in property which is capable of division is invalid. Exceptions to the rule are: where the gift is made by one co-heir to the other; where the gift is of share in a zamindari or taluka; where gift is of a share in freehold property in a large commercial town, and where gift is of share in a land company. While gift of immovable property is not complete unless the donor parts with the possession and donee enters into possession but if the property is in occupation of tenants, gift can be completed by delivery of title deed or by request to tenants to attorn to the donee or by mutation. Gift of property which is capable of division is irregular but can be perfected and rendered valid by subsequent partition or delivery. [Khursida Begum v. Mohd. Farooq, (2016) 4 SCC 549]

Infrastructure Laws — Energy and Power — Electricity — Unauthorised use: As per Cl. 16.5 of Tariff Noti. dt. 21-6-1993, if during any month in a financial year the actual maximum demand of a consumer exceeded 110 per cent of the contract demand then the highest demand so recorded had to be treated as the contract demand for that financial year and the minimum base charges, both in respect of maximum demand and energy charge had to be paid on that basis. Respondent unit had entered into an agreement with appellant Board for a contract demand of 500 kVA and as per reading recorded by maximum demand indicator (MDI) meter, for six months during April 1999 to March 2000 the maximum demand of respondent had increased beyond the contracted load of 500 kVA which was more than 110% of the contract load, thus, the connected load exceeded 500 kVA. Hence, the denial of benefit of exemption from payment of minimum guarantee charges to respondent unit by appellant Board, was proper. Amount demanded from respondent by appellant Board for the year 1999-2000 as per the tariff notification concerned, was legal and valid. [Bihar SEB v. Bhola Ram Steel (P) Ltd., (2016) 4 SCC 680]

Land Acquisition Act, 1894 — Ss. 25 and 23 — Effect of amendment by Act 68 of 1984 w.e.f. 24-9-1984 — S. 4 Notification issued on 19-9-1983: Prior to Amendment Act 68 of 1984, amount of compensation that could be awarded by court was limited to amount claimed by applicant but now S. 25 as amended coming into effect on 24-9-1984 stipulates that amount of compensation awarded by court is not to be lower than amount awarded by Collector under S. 11. Cap on maximum having been expressly omitted, and cap that is put is only on minimum, it is clear that amount of compensation that a court can award is no longer restricted to amount claimed by applicant. Duty of court is to award just and fair compensation taking into consideration true market value and other relevant factors, irrespective of claim made by owner. [Ashok Kumar v. State of Haryana, (2016) 4 SCC 544]

Mines and Minerals — Minor minerals: New procedure of grant of mining leases only by e-tendering in State of U.P. as per Government of U.P. Order dt. 31-5-2012 confirmed by High Court in Nar Narain Mishra, 2013 SCC OnLine All 13919, hence, impugned order of High Court quashing mining lease of appellants granted in violation of said new policy, affirmed. [Sulekhan Singh & Co. v. State of U.P., (2016) 4 SCC 663]

Narcotic Drugs and Psychotropic Substances Act, 1985 — S. 18 — Recovery of 1 kg of opium: As the search of appellant was conducted in presence of and under the instructions of a gazetted officer, it was not SI alone who was involved in the investigation, hence, there was no reason to differ from the view taken by High Court that appellant was guilty under S. 18 for being in possession of 1 kg of opium. [Surender v. State of Haryana, (2016) 4 SCC 617]

Penal Code, 1860 — S. 193 — Perjury: Merely because an expert has tendered an opinion while also furnishing the basis of the opinion and that too without being conclusive and definite, it cannot be said that he has committed perjury so as to help somebody. And, mere rejection of the expert evidence by itself may not also warrant initiation of proceedings under Section 340 CrPC. [Prem Sagar Manocha v. State (NCT of Delhi), (2016) 4 SCC 571]

Penal Code, 1860 — S. 302 — Murder of wife by strangulation: Conviction for murder of wife by strangulation, restored, on the basis of circumstantial evidence, as motive, and strangulation by medical evidence, established.  [State of A.P. v. Patchimala Vigneswarudu, (2016) 4 SCC 611]

Penal Code, 1860 — Ss. 120-B and 302/149 and Ss. 143, 147, 148, 341 and 109: Proof of conspiracy is strictly conditional upon there being reasonable grounds to believe that two or more persons had conspired together to commit an offence. There was no cogent or positive evidence to prove conspiracy to murder in present case and no evidence was produced to link recovery of mobile phone to any accused. Besides, not identifying actual number of assailants was a major lacuna hitting root of prosecution case and material alterations were discernible in testimonies of all witnesses. Hence, acquittal confirmed. [B. Virupakshaiah v. State of Karnataka, (2016) 4 SCC 595]

Penal Code, 1860 — Ss. 301 and 300 Firstly [S. 302 or S. 304 Pt. I] — Transfer of malice: Conviction and sentence passed by trial court under S. 302 IPC, restored as High Court in converting conviction from S. 302 to S. 304 Pt. I has failed to take into consideration doctrine of transfer of malice as provided in S. 301 IPC. Intention on the part of respondent-accused in causing bodily injury as is likely to cause death was not a disputed fact. It cannot be believed that respondent did not know about likelihood of causing death, though, he may not know as to whom he is causing bodily harm, but his act clearly attracts ingredients of S. 300 IPC. [State of Rajasthan v. Ram Kailash, (2016) 4 SCC 590]

Penal Code, 1860 — Ss. 302 and 323 r/w S. 34 — Murder — Dying declaration — Reliability: A valid dying declaration may be made without obtaining a certificate of fitness of declarant by a medical officer. [Gulzari Lal v. State of Haryana, (2016) 4 SCC 583]

Punjab Utilisation of Land and Allotment of Plots and Improvement Trust Rules, 1975 — R. 7(ii): “Local displaced person” is a person who is owner of a property for a continuous period of two years immediately before first publication of Scheme by Trust under S. 36 of Punjab Town Improvement Act, 1922 and whose land is acquired by Trust for execution of a scheme. It cannot be held that once landowner is allotted lands as per Rules as a local displaced person, thereafter even if more of his property is acquired at a subsequent stage or at a different place, he will not be a local displaced person. Local displaced person has to be understood with reference to acquisition concerned. [Jaidev Inder Singh v. Amritsar Improvement Trust, (2016) 4 SCC 599]

Service Law — Appointment — Judicial review/Validity of appointment: As R-1, in-service candidate who challenged appointment of appellant, direct recruit, to post of clerk on ground that single post of clerk ought to be filled by promotion in terms of Regulations (i) is retiring during pendency of proceedings; (ii) there is no in-service candidate other than respondent claiming candidature for said post; (iii) appellant working continuously on said post for last 36 years and duly qualified; (iv) no prejudice caused to anyone in case appellant allowed to continue on the post, hence, it is directed that appellant be allowed to continue on post of clerk until his retirement. Further directed that on appellant demitting office, post in question be filled by promoting suitable in-service candidate as per rules and in case number of posts have increased then as per applicable norms. [Sanjay Kumar Upadhyay v. Palak Dhari Yadav, (2016) 4 SCC 621]

Tenancy and Land Laws — Ceiling on Land — Determination of excess area — Clerical mistakes in identification of the land concerned: Adherence to statutory mandates and procedures, is mandatory for substitution of plots already notified as ceiling surplus, by other non-notified plots to correct purported clerical mistakes. Non-compliance therewith, would make such corrections illegal. Substituting plots simply by issuing handwritten corrigendum, illegal and impermissible even if it is a correction of clerical mistake. [Vipinchandra Vadilal Bavishi v. State of Gujarat, (2016) 4 SCC 531]

Town Planning — Illegal/Unauthorised Constructions/Development/Encroachment: Eviction notice by Municipality to small shops on the side of road/State Highway leading to Shirdi Shrine in violation of town plan and statutory mandates, affirmed, and Government directed to provide alternative land in the vicinity or in alternative to pay compensation of Rs 20 lakhs and Rs 15 lakhs to big and small shops, respectively. [Sayyed Ratanbhai Sayeed v. Shirdi Nagar Panchayat, (2016) 4 SCC 631]

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