2016 SCC Vol. 9 October 28, 2016 Part 2

Constitution of India — Art. 137 — Review: Reagitation of decided issue, not permissible. [T.N. Terminated Full Time Temporary LIC Employees Assn. v. S.K. Roy, (2016) 9 SCC 366]

Constitution of India — Art. 233(2) — District Judges — Eligibility for appointment as: Candidate already in service of Central/State Government, is entitled to take part in recruitment process without resigning from his/her post. Bar prescribed under Art. 233(2) prohibits only appointment of persons in service of Central/State Government and not their participation in the recruitment process. It is the constitutional right of such persons as well to participate in selection process. [Vijay Kumar Mishra v. High Court of Judicature at Patna, (2016) 9 SCC 313]

Constitution of India — Arts. 226 and 227 — Maintainability — Parties: Since Tribunal concerned was not required in law to defend its own order, held, proceedings under Arts. 226 and 227 of Constitution were maintainable without the Tribunal being impleaded in a petition challenging order passed by Education Tribunal affirming dismissal of appellant from service. [M.S. Kazi v. Muslim Education Society, (2016) 9 SCC 263]

Contempt of Court — Defences — Apology — Contempt by advocate: As Affidavit has been filed by petitioner, in addition to affidavit filed on 25-8-2016 reiterating tendering of unconditional apology and undertaking that he shall neither speak on subject in issue in public, except in court proceedings nor to print media nor give any interview or speak in electronic media on subject, petitioner exonerated as his repentance was found sincere. [Yatin Narendra Oza v. Khemchand Rajaram Koshti, (2016) 9 SCC 343]

Education and Universities — Appointment/Recruitment — Judicial Interference Review/Validity of appointment: As Respondent-1 was temporarily appointed (which was also advertised as such) for two sessions as part-time lecturer in private college for fixed period and accorded approval accordingly by authority concerned without adding any more rights, hence held, it did not result in permanent appointment nor did it create any right in his favour enabling him to claim regularisation in service/permanent appointment. [Pragati Mahila Samaj v. Arun, (2016) 9 SCC 255]

Environment Law — Environmental Clearance/NOC/Environment Impact Assessment — Environmental Clearance: Though public consultation/public hearing being mandatory requirement of environmental clearance process, considering peculiar facts of case, nature of requirement of public consultation/public hearing changed from pre-decisional to post-decisional process. [Electrotherm (India) Ltd. v. Patel Vipulkumar Ramjibhai, (2016) 9 SCC 300]

Mineral Concession Rules, 1960 — R. 27(3): New conditions for extraction of mineral can be imposed at the stage of renewal of mining lease, as a renewal is a fresh grant, unlike an extension. [State of Gujarat v. Nirmalaben S. Mehta, (2016) 9 SCC 240]

Penal Code, 1860 — Ss. 302, 376, 404 and 201 — Attempt to rape resulting in murder — Circumstantial evidence: As links in the chain of circumstances, established and extra-judicial confession of appellant-accused to Village Administrative Officer, completely reliable in addition to the other links, conviction confirmed. [Kadamanian v. State, (2016) 9 SCC 325]

Penal Code, 1860 — Ss. 302/34 and 201 — Murder of husband by wife and her family alleged — Circumstantial evidence: As prosecution has not established chain of circumstances to prove guilt of accused beyond periphery of doubt. Extra-judicial confession made by accused, prima facie unusual and doubtful and also not corroborated by other evidence, hence, it is not safe to act upon. Accused wife acted as expected after her husband went missing, and sufficiently able to explain her conduct under S. 313 CrPC. Hence, rendering benefit of doubt, conviction reversed. [Kala v. State, (2016) 9 SCC 337]

Penal Code, 1860 — Ss. 326/149 — Infliction of grievous injuries by accused persons on complainant/victim: As formation of unlawful assembly with common object of carrying out the assault, proved and over implication of accused persons as alleged, not made out, conviction of all accused for offence under S. 326 with the aid of S. 149, confirmed. [Bharwad Navghanbhai Jakshibhai v. State of Gujarat, (2016) 9 SCC 346]

Penal Code, 1860 — Ss. 392 and 342 — Bank robbery with wrongful confinement: Conviction of two of the naval personnels under Ss. 392 and 342 IPC r/w S. 77(2), Navy Act, 1957, with dismissal from service with disgrace, confirmed. Acquittal of appellant, who was seeking reinstatement and other monetary benefits herein, was not challenged, hence, confirmed, but it not being an honourable acquittal reinstatement other relief, not warranted. (Ajay Kumar Singh v. Flag Officer Commanding-In-Chief, (2016) 9 SCC 179]

Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 — Ss. 32 and 33 — Benefit under — Date from which can be claimed: Under special recruitment drive to fill backlog quota for physically handicapped category, there was no roster point for persons with disabilities for year 2000-2001 when appellant was appointed but one post was identified for year 2001-2002. However, relief refused to appellant by High Court on ground that in case appellant was adjusted against that sole vacancy, entire seniority list would be disturbed. It was held that no interference with impugned judgment called for. Further held, submission that exercise to determine roster point could be carried out from year 1995 instead of from 1997-98 so that appellant could be accommodated, liable to be rejected since 1995 Act was enforced w.e.f. 1-1-1996. [Vivek Singh v. State of U.P., (2016) 9 SCC 295]

Postal Department (Postman/Village Postman and Mail Guards) Recruitment Rules, 1989 — Cols. 1, 3, 11 and 12: For recruitment of GDS (extra-departmental agents) to cadre of Postman through departmental examination, promotion to post can only happen when promotional post and post being promoted from are part of same service or class of service. [Y. Najithamol v. Soumya S.D., (2016) 9 SCC 352]

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act, 2002) — S. 18(1) second proviso: Amount deposited for maintaining appeal before Debts Recovery Appellate Tribunal (DRAT) against order of DRT, is not secured asset to be adjusted towards liability of borrower. Said pre-deposit is liable to be returned to appellant borrower on disposal of appeal, either on merits or otherwise, unless, with consent of depositors, Appellate Tribunal has already appropriated/adjusted said pre-deposit towards liability of borrower. [Kumar Aluminium Ltd. v. Asset Reconstruction Co. India Ltd., (2016) 9 SCC 361]

Service Law — Government servant — Retention of status as: After transfer of (temporary) employees of government department to Government Corporation, based on government order, such employees lost their status as government servants upon the transfer, which was valid. They became employees of the government corporation concerned and would be governed by service conditions available to such employees. [PEPSU RTC v. S.K. Sharma, (2016) 9 SCC 206]

Statute Law — Generally — “Proposal moved before Parliament” and “statutory provision enacted by Parliament” — Distinction between: Budget proposal, does not vest in the intended beneficiary a right to claim any benefit. [Amin Merchant v. Central Board of Excise And Revenue, (2016) 9 SCC 191]

Tenancy and Land Laws — Ceiling on Land — Lapse of ceiling proceedings: S. 31(2) of U.P. Imposition of Ceiling on Land Holdings (Amendment) Act, 1972 provided for abatement of appeals preferred against the order determining surplus land. There are two conditions precedent to the applicability of S. 31(2) of the U.P. Imposition of Ceiling on Land Holdings (Amendment) Act, 1976: (1) that there should be an order determining the surplus land which is made under the principal Act before 17-1-1975; and (2) that the prescribed authority was required to redetermine the surplus land under S. 9 of the U.P. Imposition of Ceiling on Land Holdings (Amendment) Act, 1974. Further, language of S. 31(2) makes it clear that every appeal preferred against such orders and pending immediately before 10-10-1975, would be deemed to have abated on the said date. [Arvind Kumar v. State of U.P., (2016) 9 SCC 221]

Transfer of Property Act, 1882 — Ss. 107, 106 and 105 — Compulsorily registrable but unregistered lease deed: Compulsorily registrable but unregistered lease agreement of immovable property would be governed by S. 106 TPA and as such deemed to be a lease from month to month. Parties have option under S. 107 TPA to create lease for period less than one year or for period exceeding one year or, a tenancy from year to year or reserving an yearly rent. In former case, no registered lease deed is required and document would only evidence creation of lease from month to month. In latter case, registration of lease deed is essential, without which document would be invalid and inadmissible in evidence. But nevertheless, it would evidence creation of a lease. Such lease would be deemed to be lease from month to month, terminable on 15 days’ notice, subject to “contract to the contrary” under S. 106 TPA but “contract to the contrary” must be a valid one. Unregistered lease agreement for more than one year or, a tenancy from year to year or reserving an yearly rent being invalid, it would not be covered by expression “contract to the contrary”. Terms contained in such invalid document, containing any stipulation contrary to provisions of S. 106 TPA would have no evidentiary value. [Park Street Properties (P) Ltd. v. Dipak Kumar Singh, (2016) 9 SCC 268]

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