2017 SCC Vol. 9 November 14, 2017 Part 4

Arbitration and Conciliation Act, 1996 — Ss. 34 and 37: In light of disagreement at the Bench, issue that award passed and filed in Supreme Court pursuant to the court’s directions, if can be made rule of the court, referred to larger Bench. [State of Jharkhand v. Hindustan Construction Co. Ltd., (2017) 9 SCC 637]

Arbitration and Conciliation Act, 1996 — Ss. 37, 34 and 16 — Plea of no live claim: Plea regarding arbitrability of disputes cannot be raised for the first time at the appellate stage in appeal under S. 37. [Chittaranjan Maity v. Union of India, (2017) 9 SCC 611]

Civil Procedure Code, 1908 — Or. 6 R. 2 — Lack of material pleadings, where a suit for declaration of title over the suit property and permanent injunction was filed without material pleadings — Effect of: A suit was filed by the plaintiff, described himself as “Mahant” and “Manager” of the Temple and inter alia seeking declaration regarding ownership of suit property (Temple and land). It was held that the plaint completely lacked material pleadings and particulars for claiming a declaration of title over the suit property and permanent injunction, namely, (i) as to how and on what basis, the plaintiff claimed his ownership over the famous heritage Temple and the land surrounding the Temple; (ii) as to whether the plaintiff claimed the right of ownership through his forefathers and, if so, who were they and whether they constructed the Temple with their own resources and when; (iii) whether the plaintiff’s forefathers were allotted the land in question pursuant to any grant or patta or lease or licence or any kind of written permission for constructing the Temple on such land by the State and, if so, its details; (iv) whether the plaintiff’s forefathers ensured compliances of such grant, etc. if grant was made and whether the construction of the Temple was for the family as a private temple or for the benefit of the public at large; (v) how and in what manner, plaintiff claimed to be or/and is related to the forefathers; (vi) the basis on which the plaintiff claimed the post of “Mahant/Pujari” or “Manager”; (vii) whether the plaintiff as “owner” or “Mahant” or “Manager” ever asserted his right of ownership, Mahantship or Managership against the public at large without there being any objection from anyone from public at large. Further, no documentary evidence was adduced by the plaintiff to establish his claim. In view thereof, the suit filed by the plaintiff held to be misconceived and an abuse of the process of law. [State of Uttarakhand v. Mandir Sri Laxman Sidh Maharaj, (2017) 9 SCC 579]

Contempt of Court — Civil Contempt — General principles — Purging of contempt/Opportunity to comply: As matter no longer being whether alleged contemnor had disobeyed court orders, but rather if report submitted in compliance with court orders concerned was correct or not, it is no longer an issue of contempt, but of merits of the report concerned. The same must be challenged in appropriate proceedings. [Viswajeet Khanna v. Sukhwinder Singh, (2017) 9 SCC 608]

Environment Law — General Principles of Environmental Law — Precautionary Principle/Sustainable Development/Inter-Generational Equity Principle — Instances re Areas/Industries — Mining policy: Court cannot interfere with mining policy or lay down limits on extent of mining activity that should be permitted by the State Government or Central Government. Therefore, prayers on basis of principles of intergenerational equity, not tenable. But considering that National Mineral Policy, 2008 is only in pen and paper and also obsolete (that is, 10 years old), Central Government directed to to revisit said policy and announce a fresh, more effective, meaningful and implementable policy. [Common Cause v. Union of India, (2017) 9 SCC 499]

Family and Personal Laws — Hindu Law — Joint Family Property/HUF Property vis-à-vis Self-acquired Property/Individual Income — Presumption/Burden of proof — Presumption of jointness of properties: There lies a legal presumption that every Hindu family is joint in food, worship and estate and in the absence of any proof of division, such legal presumption continues to operate in the family. The burden, therefore, lies upon the member who after admitting the existence of jointness in the family properties asserts his claim that some properties out of entire lot of ancestral properties are his self-acquired property. [Adiveppa v. Bhimappa, (2017) 9 SCC 586]

Infrastructure Laws — Energy and Power — Electricity — Tariff — Concession/Exemption/Incentive/Rebate/Subsidy: Legality of non-extension of incentive by way of freezing of power tariff given under Revised Rules Regarding Grant of Incentive to Industrial Units in H.P., 1991, to peak load exemption charge (PLEC) imposed owing to shortage of power by State, upheld. [State of H.P. v. Gujarat Ambuja Cements Ltd., (2017) 9 SCC 601]

Penal Code, 1860 — Ss. 302/34 — Common intention — Existence of — How determined: Common intention is a state of mind. It is not possible to read a person’s mind. There can hardly be direct evidence of common intention. Existence or non-existence of common intention amongst accused has to be deciphered cumulatively from their conduct and behaviour in facts and circumstances of each case. Events prior to occurrence as also after, and during occurrence, are all relevant to deduce if there existed any common intention. There can be no straitjacket formula. Absence of any overt act of assault, exhortation or possession of weapon, cannot be singularly determinative of absence of common intention. [Rajkishore Purohit v. State of M.P., (2017) 9 SCC 483]

Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (SAFEMA) — S. 7 r/w Ss. 3(1)(b) and (c) — Tenancy of property: There is non-automatic termination of, even when such property is an “illegally acquired property” where lessor is a person to whom SAFEMA applies and is thereby liable to forfeiture. The rights of a bona fide tenant in a property will not stand automatically terminated by forfeiture of such property and vesting thereof in the Central Government. [Domnic Alex Fernandes v. Union of India, (2017) 9 SCC 489]

Special Marriage Act, 1954 — Ss. 27 and39 — Divorce on ground of irretrievable breakdown of marriage — Relief under Art. 142 of the Constitution: In this case trial court found that appellant failed to prove cruelty of respondent and scrutinising evidence of appellant, concluded that appellant did not make out a case for divorce and dismissed application for divorce. High Court, in appeal, taking note that appellant and respondent are judicial officers, made an attempt for conciliation between parties. Respondent did not appear before trial court after filing of written statement, did not personally appear before High Court. It was held that in spite of service of notice, respondent did not show any interest to appear in Supreme Court also, conduct of respondent by itself indicating she is not interested in living with appellant. Refusal to participate in proceeding for divorce and forcing appellant to stay in a dead marriage would itself constitute mental cruelty. There is no likelihood of appellant and respondent living together and for all practical purposes there is an irretrievable breakdown of marriage. Supreme Court, in a series of judgments, has exercised its inherent powers under Art. 142 of Constitution for dissolution of a marriage where Court finds that marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably, even if facts of case do not provide a ground in law on which divorce could be granted. As appellant and respondent have been living separately for more than 17 years and it will not be possible for parties to live together and there is no purpose in compelling parties to live together in matrimony and 24 years old daughter’s custody is also not in issue. In peculiar facts of this case and in order to do complete justice between parties, in exercise of power under Art. 142 appeal allowed and application for divorce filed by appellant under S. 27 of Special Marriage Act allowed. [Sukhendu Das v. Rita Mukherjee, (2017) 9 SCC 632]

Specific Relief Act, 1963 — S. 34: Suit for declaration of legal character of parties in regard to their alleged marriage can be filed under S. 34 by plaintiff and on his death can be continued by his LR at behest of plaintiff. In this case plaintiff sought declaration that defendant was not his legally married wife and that she had no right to claim him as her husband as his alleged marriage with defendant was not legal and valid, and thus claimed a permanent injunction restraining defendant from claiming plaintiff as her husband and temporary injunction. The suit was not based on any ground specified under S. 11 or S. 12 of Hindu Marriage Act or under Special Marriage Act, 1954. After death of plaintiff, his mother applied under Or. 22 R. 3 CPC to be added as LR of plaintiff. It was held that suit was in substance one filed under S. 34, hence maintainable at behest of deceased plaintiff. Suit having not been filed under Hindu Marriage Act or Special Marriage Act, civil suit under S. 34 not barred by Ss. 7 and 8 of Family Court Act. High Court in revision erred in setting aside order allowing application for substitution of LR on ground that after death of plaintiff, no right to sue survived in favour of plaintiff’s mother. [Samar Kumar Roy v. Jharna Bera, (2017) 9 SCC 591]

Specific Relief Act, 1963 — S. 38(3) — Relief of permanent injunction to restrain interference with possession — Grant of: In this case suit for permanent injunction filed to restrain defendant Nagar Palika (i.e. appellant herein) from dispossessing plaintiff (i.e. respondent herein) from suit land. Where plaintiff proved with the aid of evidence that he was holding a patta of suit land (issued by appellant in favour of his grandfather) and was in possession of that land, it was held that he established all the three necessary ingredients for grant of relief of permanent injunction i.e. (i) he had a prima facie case, (ii) balance of convenience lay in his favour, and (iii) unless the prayer was granted, he would suffer irreparable loss and injury. Hence, was rightly granted permanent injunction against appellant-defendant in relation to suit land by appellate courts below. [Nagar Palika, Raisinghnagar v. Rameshwar Lal, (2017) 9 SCC 618]

Specific Relief Act, 1963 — Ss. 10 and 20 — Specific performance of agreement (dt. 18-1-1983) to sell immovable property in question — Existence of alleged prior sale agreement (dt. 4-1-1983) as to same property executed by vendors (i.e. Defendants 1 to 5) in favour of another person i.e. Defendant 6 — Effect of: In this case vendors clearly admitted execution of agreement dt. 18-1-1983 in favour of plaintiff. They also admitted part performance of that agreement as they accepted advance money (Rs 1000) from plaintiff in pursuance thereof. On such material facts, it was held that if vendors had already entered into a sale agreement in respect of property in question with Defendant 6, then there was no occasion for them to have entered into another sale agreement with respect to same property in favour of plaintiff. In such circumstances, they should have simply expressed their inability to sell suit property to plaintiff telling him about their prior agreement with Defendant 6, but, they did not do so. Conduct of vendors showing that they somehow wanted to avoid execution of plaintiff’s agreement and wanted to sell suit property to Defendant 6. This they could achieve only by creating an agreement which was prior to that of plaintiff’s agreement. Thus, the two courts below (i.e. trial court and Division Bench of High Court) rightly concluded that agreement dt. 4-1-1983 between vendors and Defendant 6 was a bogus agreement and was created to scuttle the execution of plaintiff’s agreement dt. 18-1-1983. [Nadiminti Suryanarayan Murthy v. Kothurthi Krishna Bhaskara Rao, (2017) 9 SCC 622]

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