Case BriefsSupreme Court

Supreme Court: Refusing to expand the scope of the word ‘child’ under Section 2(d) of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) to include  the   “mental   age”   of   a   person   or   the   age determined   by   the   prevalent   science   pertaining   to psychiatry   so   that   a   mentally   retarded   person   or   an extremely intellectually  challenged person who even has crossed the biological age of 18 years can be included within the holistic conception of the term “child”, the bench of Dipak Misra and R.F. Nariman, JJ held that the Parliament has felt it appropriate that the definition of the term “age” by chronological   age   or   biological   age   to   be   the   safest yardstick   than   referring   to   a   person   having   mental retardation.

In the case where both the judges wrote their separate but concurring opinion, it was said that the POCSO Act has identified minors and protected them by prescribing the statutory age which has nexus with the legal eligibility to give consent. It may be due to the fact that the standards of mental retardation are different and they require to be determined   by   an   expert   body.   The   degree   is   also different.  If a victim is mentally retarded, definitely the court trying the case shall take into consideration whether   there   is   a   consent   or   not.   In   certain circumstances, it would depend upon the degree of retardation or degree of understanding. It should never be put in a straight jacket formula.

Explaining the scope of the power of the Court to interpret the word “child” to give it a broader meaning, it was noticed that the legislature despite having the intent in its Statement of Objects   and   Reasons   and   the   long   Preamble   to   the POCSO Act, had defined the term “age” which does not only mention a child  but adds the words “below the age of 18 years. The Court said that had the word “child” alone been mentioned in the Act, the scope of interpretation by the Courts could have been in a different realm and the Court might have deliberated on a larger canvass.

The Court was hearing the appeal of a sexual assault victim suffering from Cerebral Palsy due to which though being a 38-year-old, her mental age is no more than 6-8 years. [Eera v. State, CRIMINAL APPEAL NOS.1217­1219 OF 2017, decided on 21.07.2017]

Case BriefsHigh Courts

Kerala High Court: In a petition filed to quash the ongoing prosecution against the petitioner under the Juvenile Justice (Care and Protection of Children) Act, 2015 against the petitioner, the Bench of B. Sudheendra Kumar, J., while observing that the prosecution failed to prove that the minor girl working in the petitioner’s house was under bondage or was doing forced labour, also dealt with the issue of employment of children in households and of exploitation of child employees with special emphasis on the interpretation of Sections 79, 75, 76 and 78 of the 2015 Act. It was held by the Court that, employment of a child in households is permissible to the extent that the child is not kept in bondage.

The petitioner had been accused under Sections 75 and 79 of the Juvenile Justice Act, 2015 which deal with Punishment for Cruelty to Child and Exploitation of a Child Employee, respectively for allegedly engaging a minor girl as domestic help in his house. It was argued by the counsel of petitioner that there was no allegation that the minor victim girl was employed by the petitioner in bondage; therefore Section 79 of the 2015 Act is not attracted

It was observed by the Bench that in order to constitute an offence under Section 79, it must be looked whether the victim girl was employed by the petitioner in bondage. Since the term ‘bondage’ has not been defined in the Act, the Court had to rely on meanings provided for the term in various dictionaries. Also relying on other Central legislations and several International Conventions, the Court came to the conclusion that “engaging a child for the purpose of employment as such is not prohibited under Section 79 of the Act, if the engaging of the child for the employment is not by keeping the child in bondage.” It was further observed that the fundamental difference between ‘employment in bondage’ and ‘employment without any bondage’ is that a labourer does not have the liberty to leave the employment without the permission of the employer in the former; whereas, a labourer has the liberty to leave the employment without the permission of the employer in the latter. Though the victim had been employed as a house maid with the petitioner, it was established that she had not been kept in bondage; the petitioner had not withheld the earnings of the child or had used them for his purpose; and she had also not been physically or mentally harassed by anyone in the house. Therefore, further proceedings against the petitioner were quashed. [A. Nizamudhin v. Station House Officer, 2017 SCC OnLine Ker 7324, decided on 30.05.2017]

 

Case BriefsSupreme Court

Supreme Court: The Bench comprising of A.K Sikri and Abhay Manohar Sapre, JJ., said that where economic interest competes with the rights of other persons, need is to strike a balance between the two competing interests and have a balanced approach. The Bench was hearing the dispute as existence of 2 sugarcane factories within the radius of 15 km, thereby, violating Clause 6A of the Sugarcane (Control) Amendment Order, 2006.

Appellant stated that at the time of setting up of factory he received all the required permissions and his IEM also stood acknowledged, respondent also granted the no objection certificate to the new setup of the factory, even the Survey of India and Director of Sugar stated that, no similar factory lies within its radius of 15 km. The Appellant argued that at the time of establishment of the factory no “existing” sugar factory was there as per the definition given in clause 6A stating that an existing sugar factory is a factory which is in “operation” and respondent’s factory was not carrying out its crushing operations for last five sugar seasons therefore was not an existing factory and large amount of sugarcane was wasted amounting to huge losses to sugarcane farmers and appellant further prayed that a huge amount of investment has already been made by him therefore this economic factor should also be considered.

Accepting the argument, the Court held that at the time of establishment of the sugar factory by the appellant, he had bona fide intention and followed the requirements under clause 6A of Sugarcane (Control) Amendment Order 2006, the Court said that the requirement of distance mentioned in the Amendment Order was inserted keeping in mind the benefit of the existing sugar factories. In a situation like this, when such a factory itself gave no objection certificate, thereby waived the requirement, the bona fides of the appellant cannot be doubted.

The Court also considered the economic factors such as the expenditure of approximately Rs.300 crores by the appellant in establishing the factory; loans raised to the tune of Rs. 237 crores; operational cost of Rs. 150 crores; generation of employment of 377 persons on regular basis and indirect employment of more than 7000 persons; and setting up of co-generation plant for production of electricity which is giving supply of 37 MW of electricity. The Court, hence, held that these factors, particularly, bank loans, employment, generation and production at the factory serve useful public purpose and such economic considerations cannot be overlooked, in the context where there is hardly any statutory violation. [Shivashakti Sugars Ltd. v Renuka Sugar Ltd., 2017 SCC OnLine SC 6024, decided on 9-5- 2017]

Case BriefsSupreme Court

Supreme Court: Explaining the scope of the power of the State of Tamil Nadu to attach the immovable property of Financial Establishments under Section 3 of the Tamil Nadu Protection of Interests of Depositors (In Financial Establishments) Act, 1997, the Court said that the Act was enacted in order to curb the malady of financial swindlers and to protect the interest of innocent investors. Therefore, as per the procedure envisaged under Section 3 and 4 of the Act unequivocally the power to set the process into motion vests with the State Government by passing an ad-interim attachment order and thereafter act mandates appointment of competent authority under Sub-section (1) of Section 4 of the Act, to take further recourse as per the procedures laid down under Section 4 of the Act.

The Court was hearing the appeal against the order of Madras High Court setting aside the ad-interim order attaching the immovable properties of the partners of Financial Establishment, Global Capital Trading Services. Rejecting the contention of the Financial Establishment that before passing an order under section 3 of the act government has to take steps under section 4 of the act by identifying the properties, the bench of N.V. Ramana and P.C. Pant, JJ said that the High Court erred in accepting the said contention as the language employed under section 3 and 4 of the act is plain, unambiguous and it does not call for any interpretation as sort to be placed the respondents.

It was explained that while enacting the provisions the legislature has consciously given the discretion for passing an ad-interim order. it is evident from the language used in the section by inserting “Government may”. In the case on hand even before the other provisions are complied with the High Court erroneously interfered with the ad-interim order which defeats the very purpose of the provision which is incorporated to safeguard the interest of the investors. Hence, the order passed by the State Government under Section 3 of the Act attaching the immovable properties standing in the name of respondents, basing on the complaint of investors and directing the competent authority to take recourse as per the procedures contemplated under Sub-section (3) and (4) of Section 4 of the Act is valid and is very much in consonance with the provisions of the Act. [State v. K.S. Palanichamy, 2017 SCC OnLine SC 586, decided on 09.05.2017]

Case BriefsSupreme Court

Supreme Court: Dealing with the Section 97 of the Kerala Police Act, 2011 which mandates that the State Government shall ensure a minimum tenure of two years for the State Police Chief and that he could be transferred out before completion of the tenure if the State Government is prima facie satisfied that it is necessary to do so, on certain grounds specified in sub-section (2) of Section 97 of the Act, the Court said that the removal or displacement of any senior level officer from a tenure appointment must be for compelling reasons and must be justified by the concerned authority, if called upon to do so, on material that can be objectively tested. The bench said that this is what the rule of law expects and this is what Section 97 of the Act expects – the law must be faithfully implemented in a purposive manner.

The appellant in the present case was transferred before the competition of his tenure as an outcome of the aftermath of the Puttingal Temple Tragedy in which 100 persons were killed and around 400 were injured after the unauthorised fireworks by the temple authorities resulted in the stock of fireworks catching a spark and another case of brutal murder of a young Dalit girl Jisha within the jurisdiction of the Kuruppumpady police station, in the year 2016. State Government had submitted that it was prima facie satisfied that the conduct of the appellant post the two incidents did not inspire any confidence in his leadership and that translated into serious public dissatisfaction on the efficiency and the role of the police.

Noticing the fact that the Additional Chief Secretary recommended action against three specific police officers and placed the file before the Chief Minister and that the appellant has been accused of failure to take action against these errant police officers and unjustifiably apportioning a part of the blame on the district administration, the Court held that if the appellant failed to take any action against the errant police officers, the entire official machinery starting from the Chief Minister down to the Chief Secretary and the Additional Chief Secretary are equally to blame. The Court said that while it is true that a major part of the blame must rest on the police force at the ground level, the district administration perhaps cannot be completely absolved of its responsibility in the enormous tragedy that took place,

The Bench of Madan B. Lokur and Deepak Gupta, JJ, hence held that Section 97(2)(e) of the Act must be read and understood in the context of the other clauses of that Section which relate to verifiable facts and events. Clause (e) is not a blanket clause that permits the State Government to take any decision on the basis of what it believes to be public dissatisfaction. Otherwise, the State Government can misuse it and justify an adverse action on the ground of prima facie satisfaction outside the ambit of judicial review. [Dr. T.P. Senkumar IPS v. Union of India, 2017 SCC OnLine SC 463, decided on 24.04.2017]

Case BriefsSupreme Court

Supreme Court: Quashing the complaint filed against Mahendra Singh Dhoni for allegedly hurting the religious sentiments of people when an image of him being portrayed as Lord Vishnu was published in a magazine with a caption “God of Big Deals”, the Court said that Section 295A IPC does not stipulate everything to be penalised and any and every act would tantamount to insult or attempt to insult the religion or the religious beliefs of class of citizens. It penalise only those acts of insults to or those varieties of attempts to insult the religion or religious belief of a class of citizens which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class of citizens.

Explaining further, the 3-judge bench of Dipak Misra, A.M.Khanwilkar and M.M. Shantanagouda, JJ said that insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not come within the Section. Emphasis has been laid on the calculated tendency of the said aggravated form of insult and also to disrupt the public order to invite the penalty.

The Court also cautioned the Magistrates who have been conferred with the power of taking cognizance and issuing summons and said that they are required to carefully scrutinize whether the allegations made in the complaint proceeding meet the basic ingredients of the offence; whether the concept of territorial jurisdiction is satisfied; and further whether the accused is really required to be summoned. [Mahendra Singh Dhoni v. Yerraguntla Shyamsundar, 2017 SCC OnLine SC 450, decided on 20.04.2017]

Case BriefsSupreme Court

Supreme Court: Dealing with the question as to the time limit for the validity of the Provisional certificate of Registry for a ship/vessel under the Merchant Shipping Act, 1958, the Court said that as per Section 40 the said Act, the ship has to be completely built and ready for sea-going and if it cannot comply with Section 40 within six months, that is, arriving at the port where there is a registrar, the validity of PCOR shall cease to exist. The Court clarified that the words “shall cease to have effect” under Section 40 of the Act mean that it will have no validity in the eyes of law and, in fact, the document would be absolutely null and void. The Provisional certificate of registry cannot be renewed nor its validity can be extended beyond six months.

The Bench of Dipak Misra and R. Banumathi, JJ said that for grant of PCOR to a ship becoming Indian ship abroad, the below mentioned requisite conditions for obtaining final registration must be satisfied:

(i) satisfaction of ownership of ship in terms of Section 21 of the Act;

(ii) the ship must be fully built and sea-going so that it can reach the Indian port for obtaining certificate of final registry and

(iii) satisfaction of other requirements contained in Sections 23 to 32 of the Act.

Taking note of the fact that Section 40 was drafted when India had not grown in the shipping arena and, therefore, at that juncture, ships were booked in a different stage, the Court said that Section 40 has to be read with the preceding provisions contained in Section 34 onwards till Section 41. The said Chapter is a complete Code. The schematic effect is that precautions have to be taken. Though surveyors have been chosen, they have to be extremely careful to see that the ship is completely built and thereafter being satisfied with regard to tonnage and other aspects, give the requisite certificate to make it sea-going. The Court said that these are the conditions precedent to get a provisional certificate. [Halliburton Offshore Services INC v. Principal Officer of Mercantile Marine Department, 2017 SCC OnLine SC 445, decided on 20.04.2017]

Case BriefsSupreme Court

Supreme Court: The Bench of J. Chelameswar and Abhay Manohar Sapre, JJ said that no right or liability can be created by a repealing enactment, which is inconsistent with the rights and obligations conferred under the repealed Act unless the repealing enactment makes an express declaration to that effect or adopts some other technique known to law to achieve that purpose. Giving retrospective effect to the repealing enactment is one of the techniques by which the legislature seeks to achieve that purpose.

The Court was hearing the matter relating to removal of the chairman of the Mehsana District Co-operative Milk Producers Union Ltd under Section 76-B of the Gujarat Co-operative Societies Act, 1961 for the period of 6 years.  Originally the Section provided for disqualification only for four years. But the “four years” period was substituted by “six years” period by the Gujarat Co-operative Societies (Amendment) Act, 2015. Hence, the question before the Court was whether the period of disqualification of six years is consistent with law.

The Court noticed that Section 7 of the Gujarat General Clauses Act, 1904 provides that where an enactment is repealed by a subsequent enactment, the repeal does not normally affect any investigation or legal proceedings in respect of any right, privilege, obligations, liability, penalty, forfeiture or punishment and any legal proceeding initiated during the currency of the repealed enactment could be continued as if the repealing Act has not been passed. It was further explained that repeal could be either of the entire enactment or a part of it. Substitution of parts of an enactment is nothing but pro tanto to repeal those parts.

It was held that normally when an enactment is repealed, any action initiated under that enactment dealing its currency should lapse because the authority of law for action initiated under an enactment ceases to exist on its repeal rendering the continuation of action without authority of law. However, Section 7 of the General Clauses Act seeks to preserve various rights and obligations acquired or incurred under repealed enactments. [Vipulbhai Mansingbhai Chaudhary v. State of Gujarata, 2017 SCC OnLine SC 410, decided on 17.04.2017]

Case BriefsSupreme Court

Supreme Court: The bench of Madan B. Lokur and P.C. Pant, JJ held that a Trust cannot file a complaint under the provisions of the Consumer Protection Act, 1986 as a Trust is not a person and therefore not a consumer.

The bench took note of the various definition provisions under the Act to come to the conclusion that a Trust does not fall under the category of a ‘complainant’ as defined under Section 2(b) of the Act. The Court also considered the definition of ‘consumer’ under Section 2(d) of the Act which included the word ‘person’. The Court said that ‘person’ as per Section 2(m) of the Act includes a firm whether registered or not; a Hindu undivided family; a co-operative society; every other association of persons. However, it does not include ‘Trust’.

Hence, the Court held that based on a plain and simple reading of the provisions, a Trust cannot be a complainant and cannot file a consumer dispute under the provisions of the Act. [Pratibha Pratisthan v. Manager, Canara Bank, 2017 SCC OnLine SC 202, decided on 07.03.2017]

Case BriefsSupreme Court

Supreme Court: Interpreting Section 33(2) proviso (b) of the Karnataka Stamp Act, 1957 as to the power of the delegated authority to determine the nature of the document, the Court held that what is delegated under the said provision is only the examination of the instrument for the purpose of determining as to whether the instrument is duly stamped or not and for impounding the same. The delegation by a Judge of the High Court will not clothe the officer the jurisdiction of determining the nature and character of the instrument inasmuch as such fact needs to be determined by the Judge while exercising judicial function. Such judicial function is not to be delegated to an officer of the Court by the Judge of the High Court.

The Court said that a judicial functioning has to be done in a judicial manner. The duty of determination of an instrument or, to explicate, to determine when there is a contest a particular document to be of specific nature, the adjudication has to be done by the Judge after hearing the counsel for the parties. It is a part of judicial function and hence, the same cannot be delegated. Considering the fact that under the High Court Rules, in certain High Courts, the computation is done by the authorities in the Registry with regard to the court fees, the Court said that such computation is also is subject to challenge before the Court when the applicability of a particular provision of the Court-fees Act, 1870 is concerned. Hence, in case of determination of the nature of the document under the 1957 Act, the authority is not empowered to determine the nature and character of the document. He may, however, at the best send a report to the Court expressing his views on a document which is subject to final determination by the Court.

Explaining further, the 3-judge bench of Dipak Misra, R. Banumathi and M.M. Shantanagoudar, JJ said that the word “examination” used in proviso (b) to Section 33(2) of the 1957 Act cannot be allowed to have such wide amplitude as the context does not so envisage. It has to be conferred restricted meaning which is in consonance with the provision and the scheme of the 1957 Act. The delegated power has to be restricted to cover the area, that is, whether the instrument bears the proper stamp and thus complies with the requirement of being “duly stamped”, and the stamp duty payable on the same must be determined only with reference to the terms of the instrument. [Black Pearl Hotels (Pvt) Ltd v. Planet M Retail Ltd, 2017 SCC OnLine SC 185, decided on 17.02.2017]

Case BriefsSupreme Court

Supreme Court: The bench of Dipak Misra and R. Banumathi, JJ held that the brother of a married female tenant is neither a ‘heir’ as visualized under Section 3(a) nor ‘family’ within the meaning of Section 3(g) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972.

In the present case, the suit property was taken on rent by the father-in-law of deceased tenant and after his death, his son became tenant of the suit property. Upon his death, his wife i.e. the appellant’s sister became the tenant of the suit property.

The Court noticed that the word ‘heir’ is not defined in the Act and hence, it has to be given the same meaning as would be applicable to the general law of succession. Section 15 of the Hindu Succession Act lays down the general order of succession to the property of a female intestate who dies after the commencement of the Hindu Succession Act and the exception carved out in Section 15(2)(b) provides for a special order of succession in case of property inherited by her from her husband or her father-in-law; but its operation is confined to the case of her dying without leaving a son or a daughter or children of pre-deceased children to inherit her property. Language used in the section clearly specifies that the property inherited from the husband and father-in-law would devolve upon the heirs of husband/father-in-law from whom she inherited the property. Hence, upon death of the deceased tenant, in terms of Section 15(2)(b) of the Hindu Succession Act, in the absence of any son or daughter, the tenancy would devolve upon the heirs of her husband.

Determining whether the appellant was “family” as per Section 3(g) of the Act, the Court said that the said section defines ‘family’, in relation to landlord which includes the spouse that is husband or wife of a person, male lineal descendants which means his or her son, son’s son, son’s son’s son and so on, parents, grandparents, unmarried, widowed, divorced daughter or granddaughter, etc. The definition given in the clause is an inclusive one and is supposed to be construed in its technical meaning which implies what is not given has to be excluded as not forming part of the family of landlord or tenant. Therefore, sisters and brothers of landlord and tenant are excluded from his/her family.  [Durga Prasad v. Narayan Ramchandaani, 2017 SCC OnLine SC 103, decided on 07.02.2017]

 

Case BriefsSupreme Court

Supreme Court:  In the matter where the first proviso to Rule 3(2)(c) of the Karnataka Value Added Tax Rules, 2005 was being interpreted to facilitate the determination of taxable turnover as defined in Section 2(34) of the Karnataka Value Added Tax Act, 2003 in interface with Section 30 of the Act and Rule 31 of the Rules, the Court said that the interpretation to be extended to the proviso involved has to be essentially in accord with the legislative intention to sustain realistically the benefit of trade discount as envisaged. Any exposition to probabilise exaction of the levy in excess of the due, being impermissible cannot be thus a conceivable entailment of any law on imperative impost.

The Court further said that to insist on the quantification of trade discount for deduction at the time of sale itself, by incorporating the same in the tax invoice/bill of sale, would be to demand the impossible for all practical purposes and thus would be ill-logical, irrational and absurd. Trade discount though an admitted phenomenon in commerce, the computation thereof may depend on various factors singular to the parties as well as by way of uniform norms in business not necessarily enforceable or implementable at the time of the original sale. To deny the benefit of deduction only on the ground of omission to reflect the trade discount though actually granted in future, in the tax invoice/bill of sale at the time of the original transaction would be to ignore the contemporaneous actuality and be unrealistic, unfair, unjust and deprivatory. While, devious manipulations in trade discount to avoid tax in a given fact situation is not an impossibility, such avoidance can be effectively prevented by insisting on the proof of such discount, if granted.

The bench of Dipak Misra and Amitava Roy, JJ said that the requirement of reference of the discount in the tax invoice or bill of sale to qualify it for deduction has to be construed in relation to the transaction resulting in the final sale/purchase price and not limited to them original sale sans the trade discount. However, the transactions allowing discount have to be proved on the basis of contemporaneous records and the final sale price after deducting the trade discount must mandatorily be reflected in the accounts as stipulated under Rule 3(2)(c) of the Rules. The sale/purchase price has to be adjudged on a combined consideration of the tax invoice or bill of sale as the case may be along with the accounts reflecting the trade discount and the actual price paid. The first proviso has thus to be so read down, as above, to be in consonance with the true intendment of the legislature and to achieve as well the avowed objective of correct determination of the taxable turnover. [Southern Motors v. State of Karnataka, 2017 SCC OnLine SC 42, decided on 18.01.2017]

 

Case BriefsSupreme Court

Supreme Court: Deciding an important question of law as to whether provisions of Section 5 of the Limitation Act, 1963 are applicable in respect of revision petition filed in the High Court under Section 81 of the Assam Value Added Tax Act, 2003 (VAT Act), the Court held that the court cannot interpret the law in such a manner so as to read into the Act an inherent power of condoning the delay by invoking Section 5 of the Limitation Act so as to supplement the provisions of the VAT Act which excludes the operation of Section 5 of the Limitation Act by necessary implications.

Taking note of the fact that Section 84 of the VAT Act made only Sections 4 and 12 of the Limitation Act applicable to the proceedings under the VAT Act, the Court noticed that the legislative intent behind the same was to exclude other provisions, including Section 5 of the Limitation Act. Section 29(2) stipulates that in the absence of any express provision in a special law, provisions of Sections 4 to 24 of the Limitation Act would apply. If the intention of the legislature was to make Section 5, or for that matter, other provisions of the Limitation Act applicable to the proceedings under the VAT Act, there was no necessity to make specific provision like Section 84 thereby making only Sections 4 and 12 of the Limitation Act applicable to such proceedings, in as much as these two Sections would also have become applicable by virtue of Section 29(2) of the Limitation Act.

The bench of Dr. A.K. Sikri and Abhay Manohar Sapre, JJ said that the VAT Act is a complete code not only laying down the forum but also prescribing the time limit within which each forum would be competent to entertain the appeal or revision. The underlying object of the Act appears to be not only to shorten the length of the proceedings initiated under the different provisions contained therein, but also to ensure finality of the decision made there under. Hence, the application of Section 5 of the Limitation Act, 1963 to a proceeding under Section 81(1) of the VAT Act stands excluded by necessary implication, by virtue of the language employed in section 84. [Patel Brothers v. State of Assam, 2017 SCC OnLine SC 19, decided on 04.01.2017]

Case BriefsSupreme Court

Supreme Court: In the matter relating to supply of the ‘grounds’ of detention to the detenue when the Court has passed the order of detention under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, the Court said that neither Section 3 of the Act use the term ‘grounds’ nor any other provision in the Act defines ‘grounds’. However, Section 3(3) deals with communication of the detention order and states that ‘grounds’ on which the order has been made shall be communicated to the detenue as soon as the order of detention is passed and fixes the time limit within which such detention order is to be passed. It is here the expression ‘grounds’ is used and it is for this reason that detailed grounds on which the detention order is passed are supplied to the detenue.

Explaining further, the Court said that these grounds are the ‘basic facts’ on which conclusions are founded and these are different from subsidiary facts or further particulars of these basic facts. There is only one purpose of the Act, namely, preventing smuggling and all other grounds, whether there are one or more would be relatable to the various activities of smuggling. Hence, different instances would be treated as different ‘grounds’ as they constitute basic facts making them essentially factual constituents of the ‘grounds’ and the further particulars which are given in respect of those instances are the subsidiary details.

In the present case, the High Court of Delhi had said that there various grounds which formed the basis of the detention order and even if the documents pertaining to one particular ground were not furnished, that ground could be ignored applying the principle of segregation of grounds enumerated in Section 5A of the Act and on remaining grounds the detention order was still sustainable. Agreeing with the view taken by the High Court, the bench of Dr. A.K. Sikri and Abhay Manohar Sapre, JJ said that once it is found that the detention order contains many grounds, even if one of them is to be rejected, principle of segregation contained in Section 5A gets attracted. [Gautam Jain v. Union of India, 2017 SCC OnLine SC 16, decided on 04.01.2017]

Case BriefsSupreme Court

Supreme Court: Explaining the term ‘dividend’ under Section 2(22)(e) of the Income Tax Act, 1961, the Court said that the said provision gives an artificial definition of ‘dividend’ and creates a fiction, thereby bringing any amount paid otherwise than as a dividend into the net of dividend under certain circumstances. Stating that the dividend taken note of by this provision is a deemed dividend and not a real dividend, the Court explained that loan or payment made by the company to its shareholder is actually not a dividend. In fact, such a loan to a shareholder has to be returned by the shareholder to the company. It does not become income of the shareholder.

The Court, however, clarified that for certain purposes, the Legislature has deemed such a loan or payment as ‘dividend’ and made it taxable at the hands of the said shareholder. The conditions required to be fulfilled to attract tax under the said clause are:

  • Payment is to be made by way of advance or loan to any concern in which such shareholder is a member or a partner.
  • In the said concern, such shareholder has a substantial interest.
  • Such advance or loan should have been made after the 31.05.1987.

The question that came before the bench of Dr. A.K. Sikri and Abhay Manohar Sapre, JJ was that whether in view of the settled principle that HUF cannot be a registered shareholder in a company and hence could not have been both registered and beneficial shareholder, loan/advances received by HUF could be deemed as dividend within the meaning of Section 2(22)(e) of the Income Tax Act, 1961 especially in view of the term “concern” as defined in the Section itself.

The Court noticed that, in the present case, the Karta is, undoubtedly, the member of HUF. He also has substantial interest in the assessee/HUF, being its Karta as he was entitled to not less than 20% of the income of HUF. Hence, it was held that the provisions of Section 2(22)(e) of the Act get attracted and it is not even necessary to determine as to whether HUF can, in law, be beneficial shareholder or registered shareholder in a Company. As per the provisions of Section 2(22)(e) of the Act, once the payment is received by the HUF and shareholder is a member of the said HUF and he has substantial interest in the HUF, the payment made to the HUF shall constitute deemed dividend within the meaning of clause (e) of Section 2(22) of the Act. [Gopal and Sons v. CIT, Kolkata, 2017 SCC OnLine SC 17, decided on 04.01.2017]

 

Case BriefsSupreme Court

Supreme Court: Giving a 4:3 verdict, the 7-Judge Bench held that an appeal in the name of religion, race, caste, community or language is impermissible under the Representation of the People Act, 1951 and would constitute a corrupt practice sufficient to annul the election in which such an appeal was made regardless whether the appeal was in the name of the candidate’s religion or the religion of the election agent or that of the opponent or that of the voter’s.

In the matter where the interpretation of the word ‘his’ under Section 123(3) of the Representation of the People Act, 1951, T.S. Thakur, CJ and Madan B. Lokur, L.Nageswar Rao and S.A. Bobde, JJ, giving the majority view, said that the sum total of Section 123 (3) even after amendment is that religion, race, caste, community or language would not be allowed to play any role in the electoral process and should an appeal be made on any of those considerations, the same would constitute a corrupt practice. It was held that for maintaining the purity of the electoral process and not vitiating it, sub-section (3) of Section 123 of the Representation of the People Act, 1951 must be given a broad and purposive interpretation thereby bringing within the sweep of a corrupt practice any appeal made to an elector by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate on the ground of the religion, race, caste, community or language of (i) any candidate or (ii) his agent or (iii) any other person making the appeal with the consent of the candidate or (iv) the elector.

Dr. D.Y. Chandrachud, Adarsh K. Goel and U.U. Lalit, JJ on the other hand were of the opinion that the ‘his’ in Section 123(3) of RP Act does not refer to the religion, race, caste, community or language of the voter. ‘His’ is to be read as referring to the religion, race, caste, community or language of the candidate in whose favour a vote is sought or that of another candidate against whom there is an appeal to refrain from voting. It was said that the actual unfolding of democracy and the working of a democratic constitution may suffer from imperfections but these imperfections cannot be attended to by an exercise of judicial redrafting of a legislative provision. [Abhiram Singh v. C.D. Commachen, 2017 SCC OnLine SC 9, decided on 02.01.2017]

 

Case BriefsSupreme Court

Supreme Court: Deciding the question as to whether a former ‘ruler’ is entitled to get full benefit of the exemption granted to him under Section 10 (19A) of the Income Tax Act 1961 from payment of income-tax or it is confined only to that portion of palace which is in his actual occupation as residence and the rest which is in occupation of the tenant would be subjected to payment of tax, the Court held that the Legislature did not intend to tax portion of the “palace” by splitting it in parts. Even if the Ruler had let out the portion of his residential palace, yet he would continue to enjoy the exemption in respect of entire palace because it is not possible to split the exemption in two parts, i.e., the one in his occupation and the other in possession of the tenant.

Interpreting the related provisions, the Court said that in Section 10(19A) of the I.T. Act, the Legislature has used the expression “palace” for considering the grant of exemption to the Ruler whereas on the same subject, the Legislature has used different expression namely “any one building” in Section 5 (iii) of the Wealth Tax Act. No reliance could be placed on Section 5(iii) of the Wealth Tax Act while construing Section 10(19A) for the reason that the language employed in Section 5(iii) is not identical with the language of Section 10(19A) of the I.T. Act. If the Legislature intended to split the Palace in part(s), alike houses for taxing the subject, it would have said so by employing appropriate language in Section 10(19A) of the I.T. Act. Also, Section 23(2) and (3), uses the expression “house or part of a house”. Such expression does not find place in Section 10(19A) of the I.T. Act. Likewise, there is no such expression in Section 23, specifically dealing with the cases relating to “palace”.

In the present case which related to the ‘Umed Bhawan Palace’ used by the ‘ruler’ as his official residence and some part of which had been requisitioned to the Defence Ministry, the bench of Ranjan Gogoi and Abhay Manoher Sapre, JJ further said that if two Statutes dealing with the same subject use different language then it is not permissible to apply the language of one Statute to other while interpreting such Statutes. Similarly, once the assessee is able to fulfill the conditions specified in section for claiming exemption under the Act then provisions dealing with grant of exemption should be construed liberally because the exemptions are for the benefit of the assessee. [Maharao Bhim Singh of Kota v. Commissioner of Income Tax, 2016 SCC OnLine SC 1428, decided on 05.12.2016]

Case BriefsSupreme Court

Supreme Court: In the matter where the moot question before the Court was that whether the Sub-Registrar (Registration) has authority to cancel the registration of any document including an Extinguishment Deed after it is registered? Similarly, whether the Inspector General (Registration) can cancel the registration of Extinguishment Deed in exercise of powers under Section 69 of the Registration Act, 1908, the Court said that in absence of any express provision regarding cancellation of registration, it is not open to assume that the Sub-Registrar (Registration) would be competent to cancel the registration of the documents in question. Similarly, the power of the Inspector General is limited to do superintendence of registration offices and make rules in that behalf. Even the Inspector General has no power to cancel the registration of any document which has already been registered.

In the present matter that was placed before the 3-Judge Bench of Ranjan Gogoi, P.C. Pant and A.M. Khanwilkar, JJ owing to the difference of opinion between Dipak Misra and V. Gopala Gowda, JJ while deciding the question as to authority of the sub-registrar to register the Extinguishment deed, the Court explained that the fact whether the document was properly presented for registration cannot be reopened by the Registrar after its registration. The power to cancel the registration is a substantive matter. Section 35 of the Act does not confer a quasi-judicial power on the Registering Authority. The Registering Officer is expected to reassure that the document to be registered is accompanied by supporting documents. He is not expected to evaluate the title or irregularity in the document as such. The examination to be done by him is incidental, to ascertain that there is no violation of provisions of the Act of 1908. He cannot decide as to whether a document presented for registration is executed by person having title, as mentioned in the instrument. The validity of such registered document can, indeed, be put in issue before a Court of competent jurisdiction.

Another question that was placed before bench was whether in absence of any specific Rule in the State of Madhya Pradesh with regard to the registration of an Extinguishment Deed, the general principle laid down in the case of Thota Ganga Laxmi v. Government of Andhra Pradesh, (2010)15 SCC 207 would be applicable where it was held that a unilateral cancellation deed cannot be registered with reference to Rule 2(k)(i) of the Rules framed by the State of Andhra Pradesh under Section 69 of the Act of 1908. The Court held that the said judgment was dealing with the express provision as applicable in the State of Andhra Pradesh and the dictum in that decision cannot have universal application to all the States and hence, in absence of such an express provision, in other State legislations, the Registering Officer would be governed by the provisions in the Act of 1908. [Satya Pal Anand v. State of M.P., 2016 SCC OnLine SC 1202, decided on 26.10.2016]

Case BriefsSupreme Court

Supreme Court: Interpreting the provisions of the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962 (PMP Act), the Court said that the definition “Corporation” is wide enough to take within its sweep entities in private sector as well. Considering the nature of activity where entities in private sector are encouraged to participate, it would be incorrect to put any restricted meaning as regards the expression “Corporation”. This definition is designedly kept wide enough to include all such possibilities and there is no reason for giving any restricted meaning to such expression.

Regarding the contention that “Competent Authority” is given wide ranging powers under Section 5 of the PMP Act, the Court said that a person who occupies the position of Competent Authority under the PMP Act must evoke and enjoy public confidence. Neither the Act nor the Rules framed thereunder deal with the qualifications required of a person before his appointment as Competent Authority nor do they deal with any transparent process for such appointment. Stating that like the PMP Act, the Metro Railway (Construction of Works) Act, 1978 also confers power upon the Competent Authority therein to consider objections to the construction of the Metro Railway or any other work and to determine the amount payable for acquisition, the Court noticed that the Competent Authority under the provisions of the PMP Act must also be someone who is holding or has held a Judicial Office not lower in rank than that of a Subordinate Judge or is a trained legal mind as is the case under the Metro Act . If such requirement is not read into and not taken as an integral and essential qualification before appointment of any person as Competent Authority, the provisions in that behalf will not be consistent with the doctrine of fairness under Article 14 of the Constitution of India.

The Bench of V. Gopala Gowda and U.U. Lalit, JJ, however, clarified that the actions taken by the Competent Authority till now, will not in any way stand impaired or be invalidated purely on this count. But the Central Government should step in immediately and remedy the situation with appropriate measures. [Laljibhai Kadvabhai Savaliya v. State of Gujarat, 2016 SCC OnLine SC 1101, decided on 05.10.2016]

 

Case BriefsSupreme Court

Supreme Court: In the controversy relating to bids invited by the Nagpur Metro Rail Corporation Limited for the design and construction of Metro Rail in the city of Nagpur, the Court held that M/s. Guangdong Yuantian Engineering Company (GYT) of China and M/s. TATA Projects Limited (TPL) as a Joint Venture (GYT-TPL JV) were not eligible to bid for the contract under consideration.

The issue arose in the light of one of the eligibility criteria specified by NMRCL where it was necessary that the bidder has satisfactorily completed a minimum number of similar contracts as a prime contractor, joint venture member during last 10 (ten) years i.e. up till 31.05.2016. According to GYT-TPL JV, it had executed the Pearl River Delta intercity high speed railway project in China, however, as per NMRCL, an inter-city high speed railway project did not meet the requirements of a metro civil construction work.

NMRCL has contended that there is a difference between an inter-city rail and a metro rail.  An inter-city rail is between two cities and the trains are usually high speed trains. A metro rail is intra-city, it has a dedicated right-of-way, normally it does not have high speed trains and the frequency of trains is much greater that of inter-city trains. A metro rail may extend, in some cases, to a suburb of a metropolitan city but it essentially remains an intra-city project. There is, therefore, a qualitative difference between an inter-city rail and a metro rail. By itself, this indicates a qualitative difference in a railway project that is inter-city and a railway project that is intra-city and the construction of a viaduct for a railway project that is inter-city and a railway project that is intra-city.

Considering the said difference highlighted by the he Court, hence, held that the fact that GYT-TPL JV made constructions in a metropolitan city or in a metropolitan area during the execution of the Pearl River Delta inter-city high speed railway project, does not make that project an intra-city metro rail project. It continues to be an inter-city railway project.

Regarding the interference with the decision of the owner or the employer in accepting or rejecting the bid of the tendered, the bench of Madan B. Lokur and R.K. Agrawal, JJ said that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional Courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional Courts but that by itself is not a reason for interfering with the interpretation given. [Afcons Infrastructure Ltd v. Nagpur Metro Rail Corporation Ltd, 2016 SCC OnLine SC 940, decided on 15.09.2016]