2019 SCC Vol. 5 June 21, 2019 Part 5

Arbitration and Conciliation Act, 1996 — Ss. 12(5) (w.e.f. 23-10-2015), 12 & 13, 14 & 15 and Sch. 7 Item 5 — Application for termination of mandate of a de jure ineligible arbitrator by a party which itself had appointed such arbitrator: De jure ineligibility of arbitrator appointed by person who is himself de jure ineligible to be arbitrator vide S. 12(5) r/w Sch. 7, reiterated. Appointment of such arbitrator is void ab initio and arbitration proceedings conducted by such arbitrator/awards passed by such arbitrator, held, are also void. [Bharat Broadband Network Ltd. v. United Telecoms Ltd., (2019) 5 SCC 755]

Constitution of India — Art. 226 — Exercise of power under Art. 226 by High Court — Relief: Framing of any scheme is no function of Court but sole prerogative of Government. High Court in exercise of its extraordinary power under Art. 226 can only direct Government to frame appropriate scheme. It is only in exceptional case where Court considers it proper to issue appropriate mandatory directions it may do so. [Union of India v. All India Trade Union Congress, (2019) 5 SCC 773]

Constitution of India — Art. 227 — Proper exercise of power under — Need to pass reasoned order: In this case, reversal of eviction decree by appellate court was challenged in writ petition. High Court dismissed it with unreasoned order. Case was remanded back to High Court for deciding appellant’s writ petition afresh on merits in accordance with law. [Kushuma Devi v. Sheopati Devi, (2019) 5 SCC 744]

Consumer Protection — Services — Banking/Shares/Securities and other Financial Services: In this case personal was loan advanced by respondent lending company to husband of appellant. There was delay in obtaining loan insurance policy by the respondent lending company, which was considered as deficiency of service. It was held that loan insurance policy, had come into force as assured had done all that was required on its part and requirements of S. 64-VB(2) of Insurance Act, 1938 stood satisfied in present case. [Ashatai v. Shriram City Union Finance Ltd., (2019) 5 SCC 719]

Consumer Protection — Services — Housing — Possession — Delay — Deficiency of service on part of builder: Buyer cannot be compelled to take delivery of flat when there is delay in delivery of possession by builder. Buyer is also entitled to refund along with compensation/interest, for such delay. [Pioneer Urban Land & Infrastructure Ltd. v. Govindan Raghavan, (2019) 5 SCC 725]

Cooperative Societies — Cooperative Housing/Housing Society: Allotment of plot to appellant member and permissible relief in case of non-availability of particular allotted plot, discussed. [Nisha Singla v. Adarsh Colony Coop. House Building Society Ltd., (2019) 5 SCC 748]

Criminal Procedure Code, 1973 — S. 482 — Review/Recall — Proper exercise of power under: While recalling order by which quashment petitions were allowed, High Court dismissed the said quashment petitions as well. It was held to be not proper. [S. Ramesh v. State, (2019) 5 SCC 715]

Income Tax Act, 1961 — S. 260-A — Exercise of power under — Essentialities of, enumerated: Deciding appeal without formulating substantial question of law, not permissible. Incorrect noting of questions proposed by parties is also not proper. [Ryatar Sahakari Sakkare Karkhane Niyamit v. CIT, (2019) 5 SCC 706]

Legal Services Authorities Act, 1987 — Ss. 20(1)(i)(a), 20(1)(i)(b) and 20(1)(ii) — Lok Adalat ordering removal of unauthorised construction — Scope of the award: Award of Lok Adalat, held, confined to removal of unauthorised structure. Subsequent construction after complying with legal requirements, valid. Demolition order passed by executing court, on facts, held, unsustainable. [Cheriyath Jyothi v. Sainudeen, (2019) 5 SCC 779]

Penal Code, 1860 — S. 302 — Murder trial: In this case, deceased was shot dead by two accused at night because of previous enmity. Prosecution proved the case beyond reasonable doubt, hence, conviction under S. 302, confirmed. [Kali Prasad Singh v. State of U.P., (2019) 5 SCC 709]

Penal Code, 1860 — Ss. 302, 324 and 96 to 106 [S. 300 Exceptions 2 and 4]: In this case of murder by stabbing with spears, right of private defence, not established as appellants inflicted multiple injuries on vital parts of deceased, thus, it cannot be said that appellants acted on spur of moment without premeditation nor that appellants have not taken any advantage or acted in a cruel or unusual manner. Thus, S. 300 Exception 4 also not attracted. Hence, conviction for murder, confirmed. [Nagji Odhavji Kumbhar v. State of Gujarat, (2019) 5 SCC 802]

Service Law — Absorption — Canteen workers: In this case as there were conflicting decisions of Single Judge and Division Bench of High Court without examination of relevant material placed for first time before Supreme Court in appeal, matter remanded for decision afresh. [Democratic Staff Union v. Tuticorin Port Trust, (2019) 5 SCC 787]

Service Law — Appointment — Eligibility conditions/criteria: In this case, there was denial of appointment to respondent-petitioner on the post of Asstt. Grade II (Hindi) on ground that she did not produce certificate of one year’s experience of translation from English to Hindi and vice versa along with application and/or even at time of verification of documents, which held to be not proper as requirement that one year’s translation experience certificate was required for eligibility, contended by appellant FCI for first time before Single Judge whereafter respondent-petitioner produced certificates dt. 14-1-2015 and 18-7-2016, which were not disputed by appellant. Advertisement not specifically stated requirement of producing experience certificate along with application. Further, submission that letter dt. 27-8-2014 produced at time of verification was relieving-cum-experience certificate on basis of which it could not be inferred that respondent had necessary experience of translation liable to be rejected since though in terms of Cl. 33 of advertisement management had right to call for additional documentary evidence it did not call upon respondent to do so. It was held that there is distinction between fact and proof i.e. essential requirements and proof/mode of proof. Hence, High Court was justified in setting aside appellant’s action in rejecting respondent’s candidature on said ground and directing it to consider her case on merit. [Food Corpn. of India v. Rimjhim, (2019) 5 SCC 793]

Service Law — Promotion — Criteria/Eligibility — Seniority-cum-merit: Prescription of benchmark merit criterion based on aggregate performance in written test, interview and performance appraisal report, besides criteria fixed by rules for grant of promotion on seniority-cum-merit basis, permissible. [Shriram Tomar v. Praveen Kumar Jaggi, (2019) 5 SCC 736]

 Service Law — Reinstatement/Back Wages/Arrears — Back Wages: There is no difference between initiation of criminal proceedings by Employer Department vis-à-vis criminal case lodged by police, for determining employee’s entitlement to back wages, unless it is found that initiation of criminal proceedings was mala fide or with vexatious intent. [Raj Narain v. Union of India, (2019) 5 SCC 809]

Transfer of Property Act, 1882 — Ss. 53-A and 67: Doctrine of part performance is applicable in case of sale agreement between mortgagor and mortgagee in respect of mortgaged property. [Ramesh Chand v. Nand Lal, (2019) 5 SCC 807]

 U.P. Consolidation of Holdings Act, 1953 (5 of 1954) — S. 9-A(2): In this case, two branches of same family claiming to be recorded owners. Revenue Authorities held that name of R i.e. predecessor-in-title of original appellant herein, could not have been entered in revenue records for want of any right, title and interest in land and was accordingly directed to be deleted from revenue records. Said order was affirmed by first appellate authority, second appellate authority and lastly, in High Court. The Supreme Court held that no interference was called for. [Chandrika v. Sudama, (2019) 5 SCC 790]

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