2017 SCC Vol. 5 June 21, 2017 Part 4

Andhra Pradesh General Sales Tax Act, 1957 (6 of 1957) — Supply of food and drinks by club to its members — Consideration of, as sale liable to sales tax: In this case, matter remitted to the Tribunal to adjudicate upon the exact relationship between the Club and its members, in the matter of supply by the Club of food and drinks to its members. [Fateh Maidan Club v. CTO, (2017) 5 SCC 638]

Bihar Minor Mineral Concession (Amendment) Rules, 2001 — R. 26 — Noti. dt. 24-3-2001 fixing royalty at higher rate for certain areas, while said areas identified on 26-12-2001: Any legislation or instrument having force of law, if clarificatory, declaratory or explanatory in nature and purport, will have retrospective operation especially in the absence of any indication to the contrary as to retrospectivity either in parent Act or Rules or notifications involved. [State of Bihar v. Ramesh Prasad Verma, [(2017) 5 SCC 665]

Central Excise Rules, 1944 — S. 96-ZP r/w S. 3-A(4) of Excise Act, 1944: R. 96-ZP(3) imposed a limitation on those manufacturers who opted for the benefit of a reduced rate of duty by disabling them from availing benefit of S. 3-A(4) i.e. disputing the correctness of the determination of the annual capacity of production (ACP). Opportunity was provided under S. 3-A(4) (to seek determination of the actual production), whether a recurring opportunity available to the assessee from time to time. Further, whether an assessee who chooses once to pay duty in terms of R. 96-ZP(3) could be compelled to pay duty calculated in accordance with the said Rule for all times to come without any regard to the actual production, opined, requires examination. In view of disagreement with the judgments rendered in Venus Castings (P) Ltd., (2000) 4 SCC 206 and Supreme Steels and General Mills, (2001) 9 SCC 645, matter referred to larger Bench. [Bhuwalka Steel Industries Ltd. v. Union of India, (2017) 5 SCC 598]

Contempt of Court — Civil Contempt — General principles — Wilful disobedience/Contumacious conduct — Wilful disobedience — Determination of: Directions explicit in judgment or “are plainly evident” can be considered for purpose of deciding wilful disobedience of court order. [Mazdoor Sangh v. Baranagore Jute Factory PLC, (2017) 5 SCC 506]

Courts, Tribunals and Judiciary — High Courts — Letters Patent Appeal: No LPA lies against order passed by Single Judge of High Court in exercise of criminal jurisdiction. The vital factor for determination of the maintainability of LPA is the nature of jurisdiction invoked by the party and the true nature of the order passed by the Single Judge of High Court. [Ram Kishan Fauji v. State of Haryana, (2017) 5 SCC 533]

Criminal Procedure Code, 1973 — S. 438 — Anticipatory bail — Grant of: In this case, appellant doctor alleged to have murdered his doctor wife since he had extramarital affair and wanted to obtain benefit of her insurance policy. But parents of deceased were informed about her death immediately after occurrence by accused and they did not lodge any complaint against him and father of deceased had also sworn an affidavit stating that deceased was happily married to appellant and had died natural death, and therefore he had no objection to her funeral without post-mortem. Besides, appellant had no criminal antecedents, hence, appellant granted anticipatory bail. [Prassanna Venkardari Agrahar v. State of Maharashtra, (2017) 5 SCC 648]

Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 — Ss. 16(1)(a) or (b) and 2-A — Entitlement to exemption under 1952 Act — Mutually exclusive nature of exemptions available under S. 16(1)(a) and S. 16(1)(b): In this case there was initiation of action by Provident Fund Commissioner under 1952 Act for default by appellant registered society, running 29 schools and junior colleges in the State, in depositing provident fund contribution of 16 part-time employees. Supreme Court noted that appellant was not exempted under S. 16(1)(a) of 1952 Act since it is running 29 schools and junior colleges and employing around 1151 employees and thus in terms of S. 2-A of 1952 Act all such schools and colleges would be treated as part of same establishment. Fact that appellant had employed less than 50 permanent employees who were working without aid of power in school in which 16 part-time employees were also working, inconsequential. Further held, fact that appellant is registered cooperative society would not by itself extricate appellant from application of Central Act. However, excepted categories specified in S. 16 of 1952 Act being mutually exclusive, appellant can claim exemption under S. 16(1)(b) of 1952 Act since (i) employees working in schools/colleges of appellant were covered by CPF Scheme framed by State Government, and (ii) were under control of State Government. Fact that 16 part-time employees were not covered under CPF scheme insignificant since exemption is for establishment as a whole and for all purposes. Thus, initiation of action of recovery by Provident Fund Commissioner against appellant which was exempted from application of Central Act, unlawful. [Yeshwant Gramin Shikshan Sanstha v. Provident Fund Commr., (2017) 5 SCC 579]

Hindu Succession Act, 1956 — Ss. 15(2)(a), 8, 30 and Sch. Class I (as amended by Act 39 of 2005 w.e.f. 9-9-2005) — Prospective effect of amended provisions: Right to succession under S. 15(2)(a) of category of heirs included by amendment of 2005 to Class I to Sch. viz. “son of a pre-deceased daughter of a pre-deceased daughter and daughter of a pre-deceased daughter of a predeceased daughter” would be available with prospective effect. Therefore, right to succession to property of female Hindu referred to in S. 15(2)(a) would open in favour of such heir from father’s side only on death of that female on or after 9-9-2005 i.e. date of enforcement of amendment. [Karunanidhi v. Seetharama Naidu, (2017) 5 SCC 483]

Income Tax Act, 1961 — S. 115-A r/w Expln. 2 to S. 9(1)(vii) — Technical service — What is — “Offer of facility” and “provision of service”— Difference between, explained: Technical services denote services catering to the special needs of the person using them and not a facility provided to all. Payment received by a foreign shipping company from its agents, for use of its communication system/network to access information like tracking of cargo of a customer, transportation schedule, customer information, documentation system, etc., held, does not amount to fee for technical service but a reimbursement of cost. [Director of Income Tax v. A.P. Moller Maersk,  (2017) 5 SCC 651]

Maharashtra Cooperative Societies Act, 1960 — S. 91 — Jurisdiction of Cooperative Court to decide “service dispute” between cooperative society and its employees: Cooperative Court does not have jurisdiction to decide service disputes between employees and management of cooperative society. Further held, expression “business of society” occurring in S. 91 does not cover service/service dispute matters of employer and employee. Furthermore, issue of dismissal cannot also be treated as dispute relating to “management of society”. [Maharashtra State Coop. Housing Finance Corpn. Ltd. v. Prabhakar Sitaram Bhadange, (2017) 5 SCC 623]

Penal Code, 1860 — Ss. 302 and 498-A: In this case where pregnant wife and three-year old son, were burnt to death by accused husband in his house, role attributed to accused regarding incident, consistent in all three written and three oral dying declarations of wife. Doctor also certified conscious mental state of victim for recording declarations. Where there was no witness, failure of husband to explain how both unnatural deaths took place in his house, going against him, hence, reversal of conviction by High Court, not proper. Therefore, conviction restored. [State of Maharashtra v. Nisar Ramzan Sayyed, (2017) 5 SCC 673]

Penal Code, 1860 — Ss. 302/149 and 326/149 — Common object — Inference of: Mere presence in unlawful assembly without attribution of specific overt act when may still be enough to fasten criminal liability vicariously under S. 149. Common object of unlawful assembly can be gathered from nature of assembly, arms used by them and behaviour of assembly at or before scene of occurrence. Inference must be deduced from facts and circumstances of case. Mere presence in unlawful assembly may vicariously fasten criminal liability under S. 149. [Kattukulangara Madhavan v. Majeed, (2017) 5 SCC 568]

Rent Control and Eviction — Bona Fide Requirement of Landlord — Freedom of landlord to determine best use of the premises: Premises required for use by family member of landlady, as in the present case requirement for running a shop by the unemployed son of the landlord, can be considered as bona fide requirement of landlord. [Mehmooda Gulshan v. Javaid Hussain Mungloo, (2017) 5 SCC 683]

Rent Control and Eviction — Eviction Petition/Suit — Abuse of Process of Court/Law/Fraud on Court: Filing of frivolous and groundless cases/petitions must be firmly dealt with by all courts, imposing exemplary costs on the litigant concerned so as to ensure that access to courts is available to citizens with genuine grievances. It is not merely a matter of discretion but a duty and obligation cast upon all courts to ensure that legal system is not exploited by those who use the forms of the law to defeat or delay justice. [Dnyandeo Sabaji Naik v. Pradnya Prakash Khadekar, (2017) 5 SCC 496]

Rent Control and Eviction — Generally — Eviction matters — Balancing of interests of both sides — Freedom of landlord to determine best use of premises: Legislations made to deal with landlord-tenant disputes were pro tenant as courts tend to bend towards tenant to do justice to him. In this process, courts cannot be overzealous and forget their duty towards landlord. Ultimately, it is landlord who is owner of property and is entitled to vacant possession when he proves bona fide requirement beyond reasonable doubt. [Nidhi v. Ram Kripal Sharma, (2017) 5 SCC 640]

Securities and Exchange Board of India Act, 1992 — S. 15-T and Ss. 11(4), 11-B, 11-D, 12(3) and 15-I and S. 11(1) — Nature of, and extent of jurisdiction of SAT as judicial tribunal: It is the orders referable to Ss. 11(4), 11-B, 11-D, 12(3) and 15-I of the Act, being quasi-judicial orders, and quasi-judicial orders made under the Rules and Regulations that are the subject-matter of appeal under S. 15-T. Therefore, an administrative circular issued by SEBI under S. 11(1) of SEBI Act cannot be the subject-matter of appeal under S. 15-T. [National Securities Depository Ltd. v. SEBI, (2017) 5 SCC 517]

Service Law — Appointment — Cancellation/Refusal of appointment: As there were violation of principles of natural justice, directions of High Court remitting matter to employer to comply properly with principles of natural justice, affirmed. [Indian Institute of Information Technology v. Dr Anurika Vaish, (2017) 5 SCC 660]

Tamil Nadu General Sales Tax Act, 1959 (1 of 1959) — Ss. 2(n)(v) and (vi) — Supply of food or drinks to its members by club — Consideration of, as sale: In this case, matter remitted to the Tribunal to adjudicate upon the exact relationship between the parties in the matter of supply of food or drinks to its members by the club. [Cosmopolitan Club v. State of T.N., (2017) 5 SCC 635]

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