2017 SCC Vol. 2 February 21, 2017 Part 2

Advocates — Senior Advocates: Matter regarding challenge to process of designating lawyer as Senior Advocate was heard by Supreme Court and reserved for orders and later an application was moved contending that majority of non-designated lawyers was not heard, and that similar natured matter was pending before High Court, hence held that where power of designating advocates as Senior Advocates itself is under challenge, it would be more appropriate if both matters are heard together. [Indira Jaising v. Supreme Court of India,  (2017) 2 SCC 362]

Arbitration and Conciliation Act, 1996 — S. 34(2)(b)(ii) — Two-tier arbitration: Arbitration clause in the agreement providing for two-tier arbitration, between the parties did not violate the fundamental policy or public policy of India by the parties agreeing to a second instance arbitration. [Centrotrade Minerals and Metal Inc. v. Hindustan Copper Ltd.,  (2017) 2 SCC 228]

Arbitration and Conciliation Act, 1996 — Ss. 5 and 8(1) — Application seeking extension of time to file written statement in suit where dispute formed subject-matter of arbitration: Language of S. 8(1), makes it clear that legislature has not intended to treat moving of simple application of seeking extension of time to file written statement, as first statement on substance of the dispute for the purposes of S. 8(1). Filing of application for extension of time to file written statement without reply to allegations of the plaint, thus does not constitute first statement on substance of the dispute. Therefore, by moving an application for extension of time of eight weeks to file written statement, held, applicant (appellant) did not waive its right to object to the jurisdiction of judicial authority or to seek reference to arbitration. [Greaves Cotton Ltd. v. United Machinery & Appliances, (2017) 2 SCC 268]

Assam Value Added Tax Act, 2003 (8 of 2005) — Ss. 81 and 84 and S. 5 r/w s. 29(2) of Limitation Act, 1963 — Delay in filing revision petition: S. 81 of the VAT Act prescribes a limitation period of 60 days within which revision petition can be preferred and S. 84 provides that the provisions of Ss. 4 and 12 of the Limitation Act, 1963 shall apply in computing the period of limitation. Thus, held, legislature intended only Ss. 4 and 12 of the Limitation Act, out of Ss. 4 to 24 to be applicable under the VAT Act thereby excluding the applicability of the other provisions. Therefore, the application of S. 5 of the Limitation Act, 1963 to a proceeding under S. 81(1) of the VAT Act stands excluded by necessary implication, by virtue of the language employed in S. 84. [Patel Bros. v. State of Assam,  (2017) 2 SCC 350]

Associations, Societies and Clubs — Body discharging public functions but not amounting to “State” — BCCI — Reform in structure and organisation of BCCI as per directions issued in Cricket Assn. of Bihar, (2016) 10 SCC 231: Recommendations of Committee regarding implementing new qualification norms by removing office-bearers of BCCI who refused to implement the new norms as per directions issued in Cricket Assn. of Bihar, (2016) 10 SCC 231, accepted, and directions issued accordingly. [BCCI v. Cricket Assn. of Bihar, (2017) 2 SCC 333]

Civil Procedure Code, 1908 — Ss. 13, 14, 35, 35-A, 44-A, 2(2), 2(6), 2(9) and 2(14) — Foreign judgment: A foreign judgment which has become final and conclusive between parties is not impeachable either on facts or law except on limited grounds under S. 13. Also, a judgment is considered as judgment on merits when opportunity is extended to the parties to a case to put forth their case and after considering rival submissions court gives its decision in the form of an order or judgment. Further, on conjoint reading of terms “decree”, “judgment” and “order”, order passed by English Court falls within the definition of “order” and therefore, it is a judgment and thus becomes a “decree” as per Expln. 2 to S. 44-A. Further held, principles of comity of nations demand to respect order of English Court. Even in regard to an interlocutory order, Indian Courts have to give due weight to such order unless it falls under any of exceptions under S. 13 CPC. [Alcon Electronics (P) Ltd. v. Celem S.A. of France, (2017) 2 SCC 253]

Constitution of India — Arts. 21, 19(1)(g) & (6), 32, 142, 47, 245 and 246 & Sch. VII List I Entry 23 List II Entries 13 and 51 — Liquor vends on National and State highways, a major cause of road accidents and deaths: Sale of liquor on/along both National and State highways should be prohibited. Said prohibition shall extend to and include all stretches of such highways and thus no exception can be carved out for grant of liquor licences in respect of those stretches of national or State highways which pass through the limits of any municipality, corporation, city, town or local authority. [State of T.N. v. K. Balu, (2017) 2 SCC 281]

Constitution of India — Arts. 215 and 129 — Exercise of power to punish for contempt: High Court lacks power under Art. 215 to initiate proceedings for contempt of Supreme Court. If Supreme Court does not exercise power to punish for contempt of itself under Art. 129, then subordinate courts cannot exercise such power. [Vitusah Oberoi v. Court of Its Own Motion, (2017) 2 SCC 314]

Consumer Protection — Consumer Forums — Exercise of Power — Relief — Compensation: It is precondition that there must be proof of loss or injury suffered by consumer due to negligence of opposite party. Once this proof is adduced, Consumer Forum needs to decide on quantum of compensation. Computation of compensation has to be fair, reasonable and commensurate to loss or injury. It is duty of Consumer Forum to take into account all relevant factors for computation of compensation. [HUDA v. Shakuntla Devi,  (2017) 2 SCC 301]

Criminal Procedure Code, 1973 — S. 439 — Grant of bail — Exercise of discretion by High Court — Relevant considerations: Prime consideration is fair trial for which witnesses must feel protected for free, frank and fearless deposition. Chances of accused fleeing from justice or tampering with evidence/trial if released on bail must be carefully assessed. Court should adopt a liberal approach and properly balance individual liberty and possibility of accused interdicting fair trial if released on bail, which is a social or public interest. Social interest should outweigh personal interest. General presumption of innocence of accused not applicable to cases where there is contrary statutory presumption of his guilt such as when prosecuted under Ss. 3, 5, 7 and 9 of POCSO Act, 2012. [State of Bihar v. Rajballav Prasad, (2017) 2 SCC 178]

Government Grants, Largesse, Public Property and Premises — Allotment/Grant/Lease/Licence of land: Grant of land, once ownership already stood transferred to third party, not permissible. [Vidya Prasarak Samithi, Ramdurg v. Commr., Belgaum Distt., (2017) 2 SCC 296]

Juvenile Justice (Care and Protection of Children) Act, 2000 — Ss. 2(k), (l), 7-A and 49(1) — Claim of juvenility before Supreme Court: Courts have always held that evidence afforded by radiological examination is no doubt a useful guiding factor for determining age of a person, but evidence is not of a conclusive and incontrovertible nature and it is subject to a margin of error. Medical evidence as to the age of a person though a very useful guiding factor is not conclusive and has to be considered along with other circumstances. Ossification test cannot be regarded as conclusive when it comes to ascertaining the age of a person. [Mukarrab v. State of U.P., (2017) 2 SCC 210]

Penal Code, 1860 — S. 302 — Murder trial: Acquittal of an ex-Army officer in case of death by explosion of parcel bomb, upheld as prosecution failed to bring home guilt of accused. [H.D. Sikand v. CBI, (2017) 2 SCC 166]

Penal Code, 1860 — Ss. 302/149, 148 and 201/149 — Murder trial: Conviction of appellants under Ss. 302/149, 148 and 201/149 IPC for murder of a woman and her unmarried daughter, confirmed, based principally on testimony of sole related witness (sister of murdered woman). [Ram Chander v. State of Haryana, (2017) 2 SCC 321]

Probation of Offenders Act, 1958 — S. 4 — Release on probation under — When permissible: Where legislation, though prescribes a minimum sentence, grants discretion to court to award a lower sentence or not award a sentence of imprisonment, held, such discretion includes discretion not to send the accused to prison. [Mohd. Hashim v. State of U.P., (2017) 2 SCC 198]

Service Law — Departmental enquiry — Judicial review: Writ courts must be slow in interfering with findings of fact recorded by departmental authority on basis of evidence. However, if findings are unsupported by evidence or are such as no reasonable person would arrive at, then writ court justified if not duty-bound to examine matter. If enquiry itself vitiated for violation of principles of natural justice then writ court can interfere with disciplinary enquiry or resultant orders. Further, where authority (i) has not applied its mind; or (ii) has not assigned reasons for its conclusions then writ courts can interfere with orders of punishment. [Allahabad Bank v. Krishna Narayan Tewari, (2017) 2 SCC 308]

Transfer of Property Act, 1882 — Ss. 109 and 111(g)(2) — Transfer of lessor’s interest/reversion/renthold during subsistence of lease/tenancy: Though by virtue of S. 116 of the Evidence Act, the tenant is estopped from challenging the title of his landlord during continuance of the tenancy, yet the tenant/lessee is entitled to challenge the derivative title of an assignee/vendee of the original landlord (lessor) of the demised property in an action brought by the assignee/vendee against the tenant for his eviction from the demised property under the rent laws. However, this right of a tenant is subject to the caveat that the tenant/lessee has not attorned to the assignee/vendee. Therefore, if the tenant/lessee pays rent to the assignee/vendee of the tenanted property then it results in creation of an attornment between the parties which, in turn, deprives the tenant/lessee to challenge the derivative title of an assignee/vendee in the proceedings. [Bismillah BE v. Majeed Shah, (2017) 2 SCC 274]

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