2017 SCC Vol. 7 August 21, 2017 Part 3

Administrative Law — Judicial Review — Nature and Scope — Principle of restraint: Exercise of power of judicial review is called for if the approach is arbitrary or mala fide or procedure adopted is meant to favour someone. [Consortium of Titagarh Firema Adler S.P.A. — Titagarh Wagons Ltd. v. Nagpur Metro Rail Corpn. Ltd., (2017) 7 SCC 486]

 Criminal Law — Special Courts and Tribunals and Jurisdiction — Special Court — Babri Masjid demolition cases (Ayodhya cases) — Constitution of Special Court at Lucknow instead of at Rae Bareli as notified by High Court for trying offences committed in Ayodhya (Faizabad) in Crime No. 198 of 1992 — Non-grant of prayer for: No person, much less petitioners in public interest, can claim any Special Court at any particular place for trial of any criminal case. [Md. Aslam v. State of U.P., (2017) 7 SCC 469]

Criminal Procedure Code, 1973 — Ss. 223, 218, 227 and 228 — Discharge of some accused who were purportedly the instigators, while remaining accused perpetrated the crimes in question, when all offences committed in course of same transaction, and to accomplish a criminal conspiracy — Propriety — Demolition of Babri Masjid (Ayodhya case): Criminal conspiracy charges against senior BJP leaders L K Advani, Union Minister Uma Bharti, Murli Manohar Joshi and 13 other leaders in the 1992 Babri Masjid demolition case, restored. The demolition of the said Masjid resulted into nation-wide riots between Hindu and Muslim community. The cases against the leaders and the Kar Sewaks were directed to be tried together by the Sessions Court at Lucknow. [State v. Kalyan Singh, (2017) 7 SCC 444]

Criminal Procedure Code, 1973 — Ss. 357, 421, 431 r/w Ss. 64 & 70 IPC — Recovery of compensation: Recovery of compensation whether or not fine is imposed, despite accused serving imprisonment for default thereof, is permissible. As long as compensation is directed to be paid, albeit under S. 357(3) CrPC, 1973, S. 431 CrPC, 1973, S. 70 IPC and S. 421(1) proviso of CrPC, 1973 make it clear by legal fiction that even though default sentence has been served, compensation would be recoverable in manner provided under S. 421(1) CrPC, 1973 without any need of recording special reasons. Last part inserted into S. 421(1) proviso, CrPC, 1973 is a category by itself which applies both to compensation payable out of fine under S. 357(1) CrPC, 1973 and, by applying fiction contained in S. 431 CrPC, 1973, to compensation payable under S. 357(3) CrPC, 1973. [Kumaran v. State of Kerala, (2017) 7 SCC 471]

Family and Personal Laws — Muslim Law — Family Property, Succession and Inheritance — Ancestral/Family Property/Arrangement/Settlement/Partition — Co-owner/Co-sharer/Co-owned property — Alienation: Under Muslim law a co-sharer is entitled to sell to extent of his own share only and sale beyond that comprising sale of shares of other co-sharers in property, is void. Further, sale pendente lite would attract doctrine of lis pendens under S. 52 of Transfer of Property Act which does not render sale void but only makes it subject to final decision in suit or appeals, if any. Parties would be bound by preliminary decree, as affirmed in final decree in this case. Accordingly, sale by vendor co-sharer only to extent of his own share as determined in decree which attained finality would be valid and hence purchaser’s right would also be to that extent only. Fresh suit for cancellation of sale of entire property not needed. Purchaser’s claim for right over entire property on basis of adverse possession or sale for legal necessity of payment of land revenue on behalf of all co-sharers not made out on facts. Sale in fiduciary capacity by one co-sharer of shares of others not permissible under Muslim law. [T. Ravi v. B. Chinna Narasimha, (2017) 7 SCC 342]

Income Tax Act, 1961 — S. 14-A r/w Ss. 10(33), 115-O and 115-R — Expenses incurred on exempted income — Non-deductibility of: If the income is taxable and, therefore, includible in the total income, the deduction of expenses incurred in relation to such an income must be allowed, however, such deduction would not be permissible merely on the ground that the tax on the dividend received by the assessee has been paid by the dividend paying company and not by the recipient assessee, when under S. 10(33) of the Act such income by way of dividend is not a part of the total income of the recipient assessee. Once the condition “the income must not be includible in the total income of the assessee” is satisfied, the expenditure incurred in earning the said income cannot be allowed to be deducted. Further, dividend income under S. 115-O of the Act, held, to be a special category of income, treated differently by the Act, and non-includible in the total income of the recipient assessee. Thus, S. 14-A applicable to dividend income on which tax is payable under S. 115-O. [Godrej & Boyce Mfg. Co. Ltd. v. CIT, (2017) 7 SCC 421]

Representation of the People Act, 1951 — Ss. 100(1)(d), 37 and 30(c) — Requirement under S. 100(1)(d) that in addition to the defects enumerated in Cls. (i) to (iv) of S. 100(1)(d), it must be established that the election has been materially affected by the claimed defect: Principle that in such a case when there are only two candidates any of the defects enumerated in S. 100(1)(d) would by itself result in a case of “no election” as there is no legitimate contest or no contest at all, thus by itself establishing that election has been “materially affected” by the defect. Where only two candidates validly filed nomination for a single seat but candidature of one of them was illegally withdrawn in noncompliance with S. 37, whether contravention of statutory provisions [defect enumerated in S. 100(1)(d)(iv)] by itself materially affected result of election. When there are only two candidates, returned candidate and election petitioner filed nomination to contest for a Legislative Assembly seat but withdrawal of candidature of election petitioner, moved without his knowledge at behest of returned candidate, accepted by Returning Officer in total non-compliance with S. 37. Pursuant thereto returned candidate declared elected unopposed without election. In such circumstances, illegal acceptance of withdrawal of candidature of one of the two candidates can itself be regarded to have materially affected result of election. It amounted to sacrilege of democracy by eroding sanctity of electoral process and depriving election petitioner and electorate of fair election. High Court correctly held that in a case where there are only two candidates in the electoral fray, namely, candidates A and B, and if candidate A withdraws his candidature and such withdrawal is contended to be illegal being in violation of S. 37 of the Act, the same would materially affect the election inasmuch as candidate B would automatically stand elected unopposed. [Kameng Dolo v. Atum Welly, (2017) 7 SCC 512]

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