2019 SCC Vol. 5 May 21, 2019 Part 1

Bihar Civil Service (Judicial Branch) (Recruitment) Rules, 1955 — R. 5-A — Prescription of fixing 10% of candidates who had appeared in preliminary examination to be called for final examination — Validity: The Supreme Court in Malik Mazhar Sultan (3), (2008) 17 SCC 703 specifying ratio of 1: 10 of available vacancies to be maintained. It was held that R. 5-A is clearly arbitrary and violates Supreme Court decision in Malik Mazhar Sultan (3) case, and restricts competitive field unreasonably. No useful purpose is served by restricting number of candidates for final written examination. Besides, no minimum passing marks are prescribed in preliminary examination, which is another glaring error since candidates with minimum passing marks can only be permitted to state their claim in final examination. Assurance given by all stakeholders that they would ensure fixation of minimum marks in preliminary examination, taken note of. However, for examination in question, held, it would not be appropriate to fix marks after examination is over. Besides, as per data submitted, in case 10% candidates were called vis-à-vis available vacancies cut-off percentage was not very low. [Rahul Dutta v. State of Bihar, (2019) 5 SCC 158]

Civil Procedure Code, 1908 — Or. 41 R. 19 and Or. 43 R. 1(t) — Readmission of appeal dismissed for default: Remedy against refusal to readmit appeal is appeal under Or. 43 R. 1(t) CPC rather than petition under Art. 227 of Constitution. Appeal being valuable right of litigant, held, courts can impose compensatory costs instead of depriving litigant of valuable right of prosecuting appeal on merits. [Mysore Urban Development Authority v. S.S. Sarvesh, (2019) 5 SCC 144]

Civil Procedure Code, 1908 — Or. 47 R. 1 — Review — Exercise of review jurisdiction — Prerequisites summed up — Finding recorded in main proceedings cannot be examined de novo in exercise of review jurisdiction: Every factual or legal error cannot be made subject-matter of review under Or. 47 R. 1 CPC. However, they can be subject-matter of appeal arising out of such order. In order to attract provisions of Or. 47 R. 1 CPC, error/mistake must be apparent on face of record of case. [Asharfi Devi v. State of U.P., (2019) 5 SCC 86]

Criminal Procedure Code, 1973 — S. 31 — Sentencing — Concurrent or consecutive running of sentences: It is mandatory for Magistrate to specify as to whether sentences awarded to accused would run concurrently or consecutively when accused is convicted for more than one offence in a trial. [Gagan Kumar v. State of Punjab, (2019) 5 SCC 154]

Criminal Procedure Code, 1973 — S. 320 — Compromise in non-compoundable offences — Reduction of sentence as relief: In this case there was dispute between A-1 Shankar and complainant (real brothers) regarding boundary of agricultural field. On 21-5-2009, appellants went to hut of complainant, there was wordy quarrel between appellants and D (PW 3) and K (PW 4) (wife and daughter-in-law of complainant). During the wordy quarrel, A-2 Vivek pelted stones and the same hit PW 3. On being exhorted by A-1 Shankar, A-3 Parvatibai set fire to complainant’s house. Trial court convicted appellants under Ss. 436 and 323 r/w S. 34 IPC and sentenced them to five years’ RI. High Court affirmed conviction and sentence of appellants. The Supreme Court held that from evidence of PW 3 and PW 4, it is seen that A-2 is said to have wordy quarrel and pelted stones on PW 3, no overt act of setting fire to the house is attributed to him. Conviction of A-2 under S. 436 r/w S. 34 IPC is set aside. Conviction of A-1 and A-3 under S. 436 r/w S. 34 IPC is confirmed. Parties have compromised the matter. Regarding conviction of A-1 and A-3 under S. 436 IPC r/w S. 34 IPC, it would not be appropriate to compound the offence, ignoring statutory provisions. However, taking into consideration relationship of parties and factum of compromise between parties, sentence of imprisonment imposed upon A-1 and A-3 under S. 436 r/w S. 34 IPC is modified to the period already undergone by them. In view of compromise between parties, conviction of appellants under S. 323 IPC was set aside under S. 320(8) CrPC. [Shankar v. State of Maharashtra, (2019) 5 SCC 166]

Excise — Concession/Exemption/Incentive/Rebate/Subsidy — Exemption — Noti. No. 47/2003-CE dt. 17-5-2003 r/w Noti. No. 34/2003 dt. 30-4-2003 — Circular dt. 30-10-2003 — Clearance limit of Rs 25 lakhs, for availing benefit of exemption notification — Computation of: In this case, Appellants had supplied raw material to more than 70 job workers and total clearances were more than Rs 1.45 crores but only one out of said job workers had crossed limit of Rs 25 lakhs while individual clearances of rest of the job workers were less than Rs 25 lakhs. It was held that emphasis in exemption notification was on aggregate value and what was exempted was, “…up to an aggregate value”. However, third illustration to Circular dt. 30-10-2003 struck a slightly different note and provided that if a trader got grey fabrics manufactured by three job workers and clearance value of each of those job workers was below Rs 25 lakhs, the trader had no obligation and would be out of scope of provisions of R. 12-B of the Central Excise Rules, 2002. It was further held that if R. 12-B introduces a premise that if conditions in said Rule are satisfied, the person concerned is assessee for all purposes, it does not stand to reason how third illustration fits in the scheme of R. 12-B as well as exemption notification. Further, second illustration in Circular dt. 30-10-2003 was more appropriate, according to which the moment clearances go beyond the limit, liability gets fastened in respect of aggregate value of clearances. Thus, it was not individual clearance of one single job worker alone exceeding limit of Rs 25 lakhs but aggregate of all clearances made by appellant, which mattered. Therefore, appellant was held not entitled for exemption. [Dinesh Textiles v. CCE, (2019) 5 SCC 170]

Income Tax Act, 1961 — S. 260-A — Nature of and jurisdiction exercisable by High Court: Non-compliance with requirements of S. 260-A results in jurisdictional error. S. 260-A it is similar to S. 100 CPC. High Court can dismiss appeal on ground that there is no substantial question of law. Such dismissal is considered as in limine that is dismissal of appeal without issuing notice to respondent and without hearing respondent. Appeal can also be dismissed by answering question(s) framed on merits or on ground that question(s) though framed but such question(s) does/do not arise in appeal. Though particular question may not have been formed while admitting appeal, High Court has jurisdiction to frame additional question at later stage before final hearing of appeal by assigning reasons as per proviso to Ss. 260-A(4) and 260-A(5). Appeal can be allowed but only after framing substantial question(s) of law and answering them in favour of appellant only after hearing respondent. [CIT v. Rashtradoot (HUF), (2019) 5 SCC 149]

Land Acquisition Act, 1894 — Ss. 23, 23(1-A), 28 proviso and 18 — Compensation — Market value — Determination of — Acquisition of larger tract of land: In this case it was held that it is apparent from judgment of High Court in appeal by respondent and cross-objections filed by appellants, logic followed by Reference Court was adopted and compensation of Rs 5 lakhs per bigha was maintained. No detailed discussion either by Reference Court or appellate court by taking into account relevant factors for making a deduction of 60%from market value of an exemplary sale deed. Following Viluben Jhalejar Contractor, (2005) 4 SCC 789, it was further held that keeping in mind suitable adjustment to be made having regard to positive and negative factors and large number of cases pending before High Court and Reference Court, matters remitted to High Court by setting aside judgment in Jaiprakash Associates Ltd., RFA No. 178 of 2013, order dated 8-1-2016 (HP), for a fresh consideration on justifiability of imposition of 60% deduction on market value, while computing compensation to be paid to appellants. [Mahanti Devi v. Jaiprakash Associates Ltd., (2019) 5 SCC 163]

Maharashtra Medical Practitioners Act, 1961 (28 of 1961) — Ss. 33 and 36: In this case, as relevant facts regarding allegations of medical practice, without holding proper degree, diploma or certification, not proved beyond reasonable doubt, concurrent conviction, set aside. [Dharmendra v. State of Maharashtra, (2019) 5 SCC 63]

Mumbai Municipal Corporation Act, 1888 (3 of 1888) — Ss. 312 and 314 — Removal of stalls and structures erected on public sewer, without prior notice — Permissibility of: In order to exercise power under S. 314(1) of the Act, two conditions must be satisfied: (i) disputed wall, fence, rail, post, step, booth or any other type of structure or fixture, as the case may be, is erected or set up on any public street or open channel or drain or well or tank; and (ii) any such structure or fixture, as the case may be, is erected or set up in the city or suburbs contrary to the provisions of S. 312(1) of the Act after coming into force the two Acts specified in sub-section (1) i.e. Bombay Municipal (Extension of Limits) Act, 1950 (7 of 1950) and Bombay Municipal Further Extension of Limits and Schedule BBA (Amendment) Act, 1956. [Municipal Corpn. of Greater Mumbai v. Rafiqunnisa M. Khalifa, (2019) 5 SCC 119]

Penal Code, 1860 — S. 302 r/w S. 149 — Common object to murder — Determination of: In this case, out of 24 persons charged, A-1 to A-9 (A-1 to A-7 being the appellants herein) armed with stones and sickles alleged to have come to deceased’s house; A-1 thereafter poured kerosene while A-2 set fire to roof; deceased when trying to flee assaulted deceased with sickles and stones resulting in his death. As presence of other accused at time of occurrence as part of crowd who lynched deceased, proved, conviction of appellants for murder with aid of S. 149, confirmed. [Mahendran v. State of T.N., (2019) 5 SCC 67]

Penal Code, 1860 — S. 302 r/w S. 34 or S. 302 r/w S. 149: Alteration of charge from S. 302 r/w S. 149 to S. 302 r/w S. 34 by High Court without any evidence regarding common intention, unsustainable. [Mala Singh v. State of Haryana, (2019) 5 SCC 127]

Securities, Markets and Exchanges — Securities and Exchange Board of India Act, 1992 — Ss. 15-J & Expln. thereto and 15-A to 15-HA — Harmonious construction of: Ss. 15-A to 15-HA have to be read along with S. 15-J in a manner to avoid any inconsistency or repugnancy and the provision of one section cannot be used to nullify and obtrude another unless it is impossible to reconcile the two provisions. [SEBI v. Bhavesh Pabari, (2019) 5 SCC 90]

Service Law — Pay — Deputation/Contract Employees: In this case, Respondent employees were working with appellant Corporation on deputation and/or contract basis. Resolution dt. 27-3-2012 was passed by Corporation resolving to pay them salaries as were being paid in their parent organization. While determining the validity of the resolution, it was held that if said resolution is permitted to be implemented it would result in disparity in pay scale/salary of employees of Corporation doing same/similar work since there may be different pay scales/salaries in respective parent organizations. Division Bench of High Court was justified in applying principle of “equal pay for equal work” and quashing Resolution dt. 27-3-2012. Besides, in terms of advertisement employees were offered specific pay scales against respective posts which was paid till Resolution dt. 27-3-2012 was passed and which was on a par with pay scale paid to government employees as per 5th PRC. Thereafter to pay lesser pay scale/salary would be changing conditions of service which is impermissible. Furthermore, reliance placed on Rr. 282 and 283, Bihar Service Code while passing Resolution dt. 27-3-2012 was also misplaced and/or misinterpreted since in terms of Rr. 283(c) & (e), it is permissible for foreign service to pay more than what employees were getting in parent department. [Bihar State Beverages Corpn. Ltd. v. Naresh Kumar Mishra, (2019) 5 SCC 110]

Succession Act, 1925 — Ss. 25, 33(a), 372 and 383 — Revocation of succession certificate — Requirements for: In this case Respondent seeking revocation of appellant’s succession certificate, failed to satisfy requirements of any of sub-sections (a) to (e) of S. 383. Respondent was also not a direct lineal descendant of the original owner of the estate within meaning of S. 25 and admittedly an outsider to the family. Hence, it was held on facts that application for revocation of succession certificate was rightly dismissed. [Joseph Easwaran Wapshare v. Shirley Katheleen Wheeler, (2019) 5 SCC 58]

Unlawful Activities (Prevention) Act, 1967 — S. 43-D(5) proviso (as inserted by Act 35 of 2008) and Ss. 16, 18, 20, 38 (Ch. IV), Ss. 39 and 40 (Ch. VI) and S. 13 — Statutory bar to bail under S. 45(5) proviso, for offences under Chs. IV and VI UAPA, where court on appreciation of totality of evidence is satisfied that accusations are prima facie true: Bail granted by Delhi High Court to J&K based businessman, accused in terror funding conspiracy to systematically upturn establishment with larger object to cause cessation of J&K from Union of India, set aside. [NIA v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1]

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