2019 SCC Vol. 8 November 7, 2019 Part 3

Property Law — Adverse Possession — Meaning, nature and ingredients of, reiterated — Necessary factors to be proved for claim of adverse possession: Person pleading adverse possession has no equities in his favour as he is trying to defeat rights of true owner, hence, it is for him to clearly plead and establish all facts necessary to establish adverse possession. [Brijesh Kumar v. Shardabai, (2019) 9 SCC 369]

Armed Forces — Pension — Entitlement to in promotional time-scale in supersession of Army order: In this case, appellant who was granted pension as Major on being granted substantive rank of Lieutenant Colonel sought revision of pension applicable to that post. He fell short of 30 days for completing reckonable service of 21 yrs for grant of pension as Lieutenant Colonel in terms of Army Order dt. 20-3-1990. Name of appellant figured in list whereby competent authority vide Order dt. 15-10-1991 approved promotion of officers to substantive rank of Lieutenant Colonel by time-scale. Hence, it was held that appellant was entitled to pension of Lieutenant Colonel (TS). Reliance placed on Army Order dt. 20-3-1990 was of no avail in view of Order dt. 15-10-1991. Further costs amounting to Rs 50,000 was also imposed for exposing appellant to avoidable litigation considering that he retired in the year 1991 and was made to run from pillar to post for getting his rightful pension. [Bobby Joseph v. Union of India, (2019) 9 SCC 375]

Service Law — Pension — Cut-off date/point — Cut-off date for exercising option for pension — Extension of — Whether permissible: Ordinarily option should be exercised within last date of prescribed cut-off. However, in this case, considering long period of service rendered by respondent and keeping in view exceptional circumstance i.e. respondent was abroad during relevant time and returned only after cut-off date, it was held that no interference with impugned judgment directing appellant Bank to accept respondent’s option after cut-off date was called for. It was clarified that said direction was issued in exceptional circumstance and was not to be treated as precedent. Respondent was directed to return PF contribution already paid to him with interest @ 6% p.a. from date of VRS i.e. 16-1-2001 till cut-off date i.e. 25-10-2010. It was further clarified that respondent entitled to pension only from date of order of Single Judge i.e. 4-9-2015 and no interest on said amount could be claimed. [Oriental Bank of Commerce v. Janak Raj Sharma, (2019) 9 SCC 378]

Specific Relief Act, 1963 — Ss. 16(c) and 28 — Specific performance of agreement — Grant of — Readiness and willingness — Principles summarized: Readiness is capacity for discharge of obligations with regard to payment. Plaintiff must demonstrate readiness and willingness throughout to perform his obligations. For ascertaining readiness and willingness, conduct of parties must be determined having regard to entire attending circumstances of each case. Bare averment in plaint or statement made in examination-in-chief is not sufficient. Conduct of plaintiff must be judged having regard to entirety of pleadings and evidence brought on record. Failure to deposit within time fixed by court is indicative of incapacity of plaintiff to perform his obligations. Time can be extended to deposit balance consideration but mere extension of time to deposit does not absolve plaintiff of his obligation to demonstrate readiness and willingness coupled with special circumstances beyond his control to seek extension. For seeking extension of time for deposit of balance consideration sufficient, substantial and cogent grounds must be pleaded. Otherwise, it becomes question of his conduct along with all other attendant surrounding circumstances in facts of case. Merely because suit is filed within prescribed period of limitation does not absolve plaintiff from showing as to whether he was ready and willing to perform his part of agreement. If there was non-performance, the question would be whether that obstacle was put by seller or otherwise. The provisions to grant specific performance are quite stringent. Equitable considerations come into play. Court has to see all attendant circumstances including if plaintiff conducted himself in reasonable manner under agreement. [Ravi Setia v. Madan Lal, (2019) 9 SCC 381]

Penal Code, 1860 — S. 302 — Death sentence — Imposition of, in cases based on circumstantial evidence — Law summarized: In cases based on circumstantial evidence, though concept of residual doubt is not given much importance in Indian capital sentencing, Court has stressed on higher quality of evidence for imposition of death sentence in a number of cases, and has applied doctrine of prudence for this, which only reflects the principle laid down in Bachan Singh, (1980) 2 SCC 684, that is, while awarding death sentence, alternative option i.e. imposition of life imprisonment must be unquestionably foreclosed — Irrevocable punishment of death must only be imposed when there is no other alternative, and in cases resting on circumstantial evidence, the doctrine of prudence should be invoked. This case involving murder of four children aged 10 months to 10 yrs and wife, by strangulation and throwing them in village pond, is a case based on circumstantial evidence. Imposition of life imprisonment in present case was not unquestionably foreclosed and there was a reasonable probability that death sentence could have been set aside if errors apparent on face of record would not have occurred. However, reports indicated that conduct of petitioner in jail was unsatisfactory and he was a menace to society, thus, life imprisonment simpliciter, inadequate. Death sentence commuted to life imprisonment for entire life without remission. [Sudam v. State of Maharashtra, (2019) 9 SCC 388]

Criminal Law — Criminal Trial — Sentence — Death sentence — Review petition against death sentence: In this case reopening of review petition after dismissal of curative petition, permitted, in view of law laid down and liberty granted in Mohd. Arif, (2014) 9 SCC 737. [Mohd. Arif v. Supreme Court of India, (2019) 9 SCC 404]

Hindu Marriage Act, 1955 — Ss. 13 and 13-B — Divorce — Irretrievable breakdown of marriage — Exercise of power by Supreme Court under Art. 142 of the Constitution, to dissolve marriage in such cases: There is no necessity of consent by both parties, for exercise of powers under Art. 142 of the Constitution to dissolve marriage on ground of irretrievable breakdown of marriage. Where neither grounds specified under S. 13 for divorce established nor mutual consent between parties as per S. 13-B exists (wife being unwilling for divorce in this case) and all efforts to save marriage failed, Supreme Court, considering facts and circumstances of the case on being satisfied that marriage has irretrievably broken down, can dissolve such marital relationship which is already dead, with a view to do complete justice between parties in exercise of power under Art. 142 of the Constitution. [R. Srinivas Kumar v. R. Shametha, (2019) 9 SCC 409]

Land Acquisition Act, 1894 — Ss. 11, 12 and 13-A — Review of award after it attained finality — Impermissibility of — Review — When permissible — Principles summarized: There is no provision under LA Act, 1894 for review of award once passed under S. 11, and which has attained finality. S. 13-A is not provision for review of award. It is only for correction of clerical or arithmetical mistakes in award. As per S. 13-A(1), such corrections can be made any time, but not later than six months from date of award. Review is not inherent power. It can be exercised only when statute provides for the same expressly/ specifically or by necessary implication. In absence of any such provision in statute concerned, power of review cannot be exercised in case of judicial/quasi-judicial orders. Exercise of power of review in absence of express provision would be ultra vires, illegal and without jurisdiction. [Naresh Kumar v. State (NCT of Delhi), (2019) 9 SCC 416]

Penal Code, 1860 — Ss. 120-B, 467 and 467 r/w Ss. 471, 420 and 477-A: To prove conspiracy to obtain loan against pledge of jewels, without actually pledging any jewel(s), it is required to establish dishonest intention on the part of appellant loanees. It was held that there was no evidence on record that appellant loanees MR and NR were ever aware that loan in question i.e. agricultural jewel loan could be sanctioned only after jewels were pledged. There was no evidence in respect of dishonesty/misuse in obtaining the loan without furnishing any security, hence, conviction of appellant loanees MR and NR, set aside. However, conviction of Branch Manager, A-1, who had illegally sanctioned the said loans without pledging of any jewels, confirmed. [M. Ramalingam v. State, (2019) 9 SCC 421]

Prevention of Food Adulteration Act, 1954 — Ss. 2(i-a), 13 and 16 — Marginal deviation from prescribed standards — Acquittal based thereon — Impermissibility of — Strict adherence with prescribed standards: Food article failing to comply with standards but not injurious to health needs to be treated as adulterated food. In this case conviction for milk adulteration with marginal deviation, confirmed. Further held that minimum sentence prescribed by statute cannot be commuted by exercise of power under Art. 142 of the Constitution or otherwise. It was held that once standards are laid down by legislature then those standards have to be followed. In items like milk which is primary food under Act, it is not necessary to also prove that food item became unfit for human consumption or injurious to health. In cases of food coming under Act, it is not required to prove that food article was injurious to health. Where food article fails to comply with standards then it has to be treated as adulterated article even if it is not rendered injurious to health. Act does not make distinction between cases coming under it on basis of degree of adulteration. It does not provide for aggravation of offence based on extent of contamination. Offence and punishment are same whether adulteration is great or small. Food pollution, even if it be only to slightest extent if continued in practice, would adversely affect health of every man, woman and child. Hence, even marginal or border line variation of prescribed standards under Act is matters of serious concern for all. Act does not provide for exemption of marginal or border line variations of standard from operation of Act. In such circumstances to condone such variations on ground that they are negligible is virtually to alter standard itself fixed under Act. When standard has been fixed under Act for food article, it has to be observed in every detail. If standards are not complied with court not justified in acquitting accused only on ground that deficiency is marginal. [Raj Kumar v. State of U.P., (2019) 9 SCC 427]

Arbitration and Conciliation Act, 1996 — Ss. 34(3) and 37: S. 14 of Limitation Act is applicable to application submitted under S. 34 of 1996 Act seeking exclusion of certain period, if application under S. 34 of 1996 Act is at the first instance filed within limitation period provided under S. 34(3). However, S. 5 of Limitation Act is not applicable to condone delay beyond the statutory period under S. 34(3) of 1996 Act. [Oriental Insurance Co. Ltd. v. Tejparas Associates & Exports (P) Ltd., (2019) 9 SCC 435]

Education Law — Employment and Service Matters re Educational Institutions — Termination/Removal/Dismissal — Termination of Service — Judicial Review/Interference by Court/Validity: In this case there was prayer for condoning delay of 2 yrs, 10 months and 14 days in challenging oral order of termination dt. 30-11-2013. As appellant was in repeated correspondence with respondent Institution between 30-11-2013 and 4-11-2016, delay was held liable to be condoned. [Balkrishna Waman Zambare v. Siddheshwar Shikshan Sanstha, (2019) 9 SCC 446]

Education Law — Reservation of Seats/Quota/Exemption/Priority/Affirmative Action/Reverse Discrimination — Judicial review/validity/Relief — Abuse of process/fraud on court: In this case, the prayer for redoing entire admission process of MBBS under Sports quota, was rejected as appellants approached Court belatedly, had not challenged provisional admissions even though opportunity therefor was given and suppressed material facts that all students including appellant, R-1 and R-5 had secured admissions in various medical colleges. Further, appellant had not impleaded necessary parties in writ petition before Singe Judge on which ground alone his writ petition before High Court should have been rejected. Though appellant was not issued any notice and was not heard before Division Bench which reversed decision of Single Judge of High Court. Further, amongst candidates of Sports quota, appellant had secured lowest marks. As entire case of appellant was an afterthought and wholly based on speculation, appeals were dismissed. Interim order, which had been obtained by appellant by suppressing material facts, vacated and order of Division Bench was affirmed. [Jyothir R. v. Sunisha N.S., (2019) 9 SCC 449]

Factories Act, 1948 — Ss. 37, 38 and 92 — Violation of — Relief: In this case, the Supreme Court itself imposed a sentence at pre-trial stage where accused pleaded guilty considering peculiarity of facts and exceptional circumstances. However, it was clarified that this decision would not serve as a precedent. [Subir Bose v. Inspector of Factories, (2019) 9 SCC 454]

Constitution of India — Art. 30 — Minority institutions: Minority institutions were permitted to fill up 85% of their total seats, with students belonging to minority community, as management quota by G.O. of State Government. Validity of steps by State Government (vide impugned government orders) to combat admissions on basis of false conversions and to tackle problem of vacant seats in minority institutions on basis of statistical data, affirmed. [Andhra Kesari College of Education v. State of A.P., (2019) 9 SCC 457]

Arbitration and Conciliation Act, 1996 — Ss. 34, 34(5) and (6) (as added w.e.f. 23-10-2015) — Proceedings under S. 34:  Proceedings under S. 34  are summary in nature and limited in scope. Effect of insertion of Ss. 34(5) and (6), following Emkay Global, (2018) 9 SCC 49, held, is that permission to file affidavit by way of evidence and cross-examination of witnesses, is grantable only when absolutely necessary, in exceptional cases, and not as a matter of course. Ruling in Fiza Developers, (2009) 17 SCC 796, thus, stands limited to that extent. R. 4(b) of the Karnataka High Court Arbitration Rules, 2001, providing for application of Civil Procedure Code to arbitration proceedings, does not tantamount to wholesale or automatic import of all the provisions of Civil Procedure Code into the proceedings under S. 34. [Canara Nidhi Ltd. v. M. Shashikala, (2019) 9 SCC 462]

Civil Procedure Code, 1908 — Or. 34 Rr. 1, 7 & 8, Or. 1 Rr. 3 & 4 and Ss. 96 and 100 — Redemption decree — Locus standi/Standing to challenge: Tenant/Lessee of mortgagor/mortgagee, held, does not have locus standi/standing to challenge redemption decree. Tenants, held, remain tenants whoever be the landlord/owner. Appeal by tenant against judgment of trial court decreeing suit for recovery of possession/redemption of mortgage filed by plaintiff owner against mortgagee is not maintainable in absence of challenge to same by mortgagee himself of whom they claimed to be tenants. [Mohan Chandra Tamta v. Ali Ahmad, (2019) 9 SCC 471]

Civil Procedure Code, 1908 — S. 100 — Findings of fact — Interference with, in second appeal: For interference with Findings of fact in second appeal, it is necessary to consider matter in detail and materials on record by second appellate court. [Murtaza Jahan v. Mohan Chandra Tamta, (2019) 9 SCC 475]

Rent Control and Eviction — Arrears of Rent/Default/Tender of Rent/Striking off Defence — Striking off defence: Power vested under S. 15(7) of the Delhi Rent Control Act, 1958, is discretionary and not mandatory and depends on contumacious or deliberate default and must be construed harmoniously so as to balance rights and obligations of tenant and landlord and power under S. 15(7) of DRC Act, 1958 being an exception to be exercised with due care and circumspection.[ Dina Nath v. Subhash Chand Saini, (2019) 9 SCC 477]

Property Law — Adverse Possession: Plaintiff, reiterated, can claim title based on adverse possession. Law laid down by three-Judge Bench in Ravinder Kaur Grewal, (2019) 8 SCC 729, summarised and followed. Further held, dispossession of plaintiff seeking to establish acquisition of title based on adverse possession, subsequent to filing of suit therefor has no bearing. [Krishnamurthy S. Setlur v. O.V. Narasimha Setty, (2019) 9 SCC 488]

Trusts and Trustees — Religious and Charitable Endowments and Trusts — Archaka or Pujari: Archaka is obliged to protect property of temple as guardian of deity, who is deemed in law to be a minor, and initiate proceedings in that regard when required but he cannot usurp such property for his own gains. [Sri Ganapathi Dev Temple Trust v. Balakrishna Bhat, (2019) 9 SCC 495]

Constitution of India — Arts. 226 and 227 — Exercise of power — Interference on ground of violation of principles of natural justice: In this case, petroleum products dealership of the respondent was terminated and the High Court itself issued directions instead of remanding matter to authorities concerned to provide opportunity of hearing and decide matter afresh in accordance with law but as respondent did not want to continue dealership, held, it was entitled to refund of security amount of Rs 7,05,746 within period of six weeks. Appellant was directed to remove all its equipments from premise of respondent. However, no interest was awarded on security deposit. [Indian Oil Corpn. v. Lala Bhairo Prasad Saraf & Sons, (2019) 9 SCC 505]

Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 — S. 2-A (inserted by Act 46 of 1960 w.e.f. 31-12-1960), Ss. 16(1)(d) and 7-A — Claim for exemption: In this case, there was denial of exemption on ground that the three establishments viz. (i) BCCL, Jaipur (ii) TPHL, Jaipur and (iii) SVPL, Jaipur were part of same establishment i.e. BCCL, Mumbai. BCCL, Jaipur is not a separate entity but part of parent Company BCCL, Mumbai directly. It was held that mere location of departments and branches in different cities inconsequential, hence, no exemption can be granted to BCCL, Jaipur. Further held, as far as TPHL, Jaipur and SVPL, Jaipur are concerned applicable test for determining one establishment would be functional integrality or general unity of purpose and not test of unity of ownership, management and control. Further, business model of outsourcing not being prevalent in relevant period said principle inapplicable for testing nature of linkage. Moreover nature of agreement provided that said units would make available both space and staff for benefit of BCCL, Mumbai and expenses of establishment were also to be borne by them. Beside BCCL, Mumbai was issuing orders on their letter pads. Fact that there was no commonality of Directors, shareholders, no financial unity, separate balance sheets as well as profit and loss accounts, independent employees with no transfer inter se, is inconsequential. Said three establishments were effectively part of same parent Company and cannot be granted exemption from applicability of 1952 Act which is a beneficial legislation. [Shree Vishal Printers Ltd. v. Provident Fund Commr., (2019) 9 SCC 508]

Trusts and Trustees — Religious and Charitable Endowments and Trusts — Wakfs — Mutawalli — Role of — Principles summarized: There is clear distinction in matters of powers between appropriator or wakif who himself becomes first mutawalli and mutawalli appointed by wakif. Transfer of office by mutawalli is not permissible, unless he is specifically empowered under wakf deed. Succession to office of mutawalli should be in accordance with intention of person who created wakf. Such intention cannot be subverted by creating subsequent document contrary to intention of creator of wakf. [Syeda Nazira Khatoon v. Syed Zahiruddin Ahmed Baghdadi, (2019) 9 SCC 522]

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