2019 SCC Vol. 10 December 7, 2019 Part 2

Advocates — Strike/Boycott by Lawyers: Strike by Advocates of Odisha High Court over a decision of the Collegium clearing names of some candidate (who practises in Supreme Court) and not clearing name of another candidate, held, unwarranted and cannot be a ground for lawyers to abstain from work. [PLR Projects (P) Ltd. v. Mahanadi Coalfields Ltd., (2019) 10 SCC 306]

Arbitration and Conciliation Act, 1996 — S. 16 — Scope of reference: Dismissal of counterclaims by arbitrator, at threshold on the ground of being beyond the scope and jurisdiction of arbitrator without any enquiry is not proper. Decision by arbitrator only on disputes raised by claimant/applicant under S. 11 and not counterclaims of the other party, not permissible. [Bharat Petroleum Corpn. Ltd. v. Go Airlines (India) Ltd., (2019) 10 SCC 250]

Armed Forces — Discharge/Dismissal — Unsustainability — Violation of principles of natural justice and statutory rules: In this case, respondent was alleged to have caused grievous hurt to one S with talwar (sword) without provocation. There were irreconcilable inconsistencies between medical and oral evidence, and Tribunal took a probable view that evidence was not sufficient to establish guilt of respondent. Hence, held, impugned judgment setting aside punishment of dismissal called for no interference. [Union of India v. Pravat Kumar Behuria, (2019) 10 SCC 220]

Civil Procedure Code, 1908 — Or. 7 R. 11 — Rejection of plaint: Entirety of plaint averments have to be taken into consideration. Rejection of plaint without considering crucial aspects of case is not permissible. [Shaukathussain Mohammed Patel v. Khatunben Mohmmedbhai Polara, (2019) 10 SCC 226]

Constitution of India — Art. 137: In review of Azizia Bee, (2018) 15 SCC 206, in para 12 of judgment dt. 16-8-2017, (2018) 15 SCC 206, words “prima facie” added. It was clarified that the entire judgment of Single Judge stood affirmed and order of Division Bench was set aside. [State of A.P. v. Grace Sathyavathy Shashikant, (2019) 10 SCC 281]

Constitution of India — Art. 246, Sch. VII List I Entry 77, List II Entry 65 and List III Entry 46 & Arts. 138 and 323-B — Competence to deal with jurisdiction and powers of Supreme Court: Jurisdiction and powers of Supreme Court is beyond competence of State Legislature and such power rests only with Parliament. State Legislature cannot provide appeal directly to Supreme Court arising out of orders passed by Tribunals constituted under Art. 323-B. Consequently, S. 13(2) of Chhattisgarh Rent Control Act, 2011 providing appeal directly to Supreme Court against orders of Chhattisgarh Rent Control Tribunal, held, ultra vires and struck down. High Court can exercise supervisory jurisdiction under Art. 227 over such Tribunal. [H.S. Yadav v. Shakuntala Devi Parakh, (2019) 10 SCC 265]

Contract and Specific Relief — Contractual obligations and rights — Privity and Third-Parties’ Obligations and Rights — Partnership agreement: Clauses in agreement, against third parties i.e. legal representatives of partners will not bind the said third parties. Such clauses in partnership deed ran contrary to provisions of Partnership Act, 1932, were void, unenforceable and opposed to public policy. [S.P. Misra v. Mohd. Laiquddin Khan, (2019) 10 SCC 329]

Criminal Procedure Code, 1973 — S. 482 — Inherent powers of High Court under — When can be exercised: Exercise of inherent powers of High Court under this section to quash FIR, when there are serious triable allegations in complaint, not proper. [XYZ v. State of Gujarat, (2019) 10 SCC 337]

Criminal Trial — Sentence — Principles for sentencing — Tests for analysing sentencing: Crime test, criminal test and comparative proportionality test, explained. [State of M.P. v. Udham, (2019) 10 SCC 300]

Entertainment, Amusement, Leisure and Sports — Liquor — Licence/Levy —Cancellation/Suspension/Revocation of Licence: Grant of refund of licence fee and differential amount for the duration for which the premises of the licensee were sealed and its licence suspended, when such sealing/suspension is unlawful. Grant of opportunity/Issuance of show-cause notice to licensee is necessary prior to taking of punitive actions like cancellation/suspension of licence. [State of Bihar v. Riga Sugar Co. Ltd., (2019) 10 SCC 310]

Family and Personal Laws — Hindu Law — Joint Family — Self-acquired Property: Proof of self-acquired Property lies on that member who admits joint family status but contends that some properties are self-acquired properties. Appearance of name in revenue record does not make property as self-acquired property. [Prahlad Pradhan v. Sonu Kumhar, (2019) 10 SCC 259]

Income Tax — Practice and procedure — Notice/Summons/Knowledge of Proceedings — Summons to power-of-attorney holder of Company of court hearing — Validity of — Power-of-attorney holder/agent of Company: The term “agent” [as used in S. 2(35) of the Income Tax Act, 1961] would certainly include a power-of-attorney holder and the CA being the power-of-attorney holder of the Company was the agent of the assessee Company, and hence notice could be served on him. Hence, plea as to the attorney-holder not being aware of the nature of documents (summons) served upon him and not being in the position to inform his principal because of his health, not accepted. [CIT v. NRA Iron & Steel (P) Ltd., (2019) 10 SCC 206]

Maharashtra Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 (23 of 2001) — S. 6(1): Issuance of caste verification certificate should not be a casual exercise and Scrutiny Committee constituted under the Act, by State Government by issuing Noti. dt. 30-7-2011 to deal with numerous applications of candidates seeking to contest local self-government elections, held, must take assistance of Vigilance Cell to ensure that non-entitled persons do not get benefitted at the cost of entitled persons. [Collector, Satara v. Mangesh Nivrutti Kashid, (2019) 10 SCC 166]

Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (28 of 1971) — Ss. 2(ga), 3-C, 3-D, 4, 12 and 36 [as they stood prior to 2018 Amendment] — Declaration of slum rehabilitation area: Notification under S. 4, held, not prerequisite for passing orders under Ss. 3-C and 3-D. Ch. I-A of Act is self-contained code for matters dealing with slum rehabilitation schemes. Prior notice under S. 3-C is not required before declaring any area as slum rehabilitation area. Principles of natural justice, also held, are not applicable where there is compliance with S. 36. [Kantabai Vasant Ahir v. Slum Rehabilitation Authority, (2019) 10 SCC 194]

Negotiable Instruments Act, 1881 — Ss. 139 and 138 — Dishonour of cheque: In this case, there was sufficient evidence on record to raise presumption under S. 139 and accused failed to rebut the same, hence, conviction was confirmed. [Rahul Sudhakar Anantwar v. Shivkumar Kanhiyalal Shrivastav, (2019) 10 SCC 203]

Negotiable Instruments Act, 1881 — Ss. 139, 118 and 138 — Dishonour of cheque — Burden of rebuttal of presumption under Ss. 118 and 139 — Matters to be established by accused — Law summarized: The presumption mandated by S. 139 does indeed include the existence of a legally enforceable debt or liability. Bare denial of the passing of the consideration and existence of debt, is not enough to rebut the presumption. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. Rather, something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the consideration did not exist, or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. Accused may also rely upon presumptions of fact, for instance, those mentioned in S. 114 of the Evidence Act to rebut the presumptions arising under Ss. 118 and 139 of the NI Act. [Uttam Ram v. Devinder Singh Hudan, (2019) 10 SCC 287]

Penal Code, 1860 — S. 302 — Murder of wife — Circumstantial evidence — Death if suicidal by hanging, or, homicidal — Determination of — Medical evidence: In this case, fact that neck of deceased was not found stretched and elongated, considering that body was still fresh, ruled out any possibility of suicide by deceased.  The tongue was not protruding. There was no fracture or dislocation of bones in neck area. Saliva was not running down face or chest of deceased but had flowed out at the left of the mouth. Injuries on the person of deceased, as noticed in inquest report as also in post-mortem report, are clearly indicative of a struggle or resistance put up by deceased in the last hour. Hence, it was held that the deceased was strangulated to death as it would not also be possible for appellant to hang the deceased alone. Thus, in light of all the circumstances established against appellant, conviction under S. 302 IPC was confirmed. [Kalu v. State of M.P., (2019) 10 SCC 211]

Penal Code, 1860 — S. 302 or S. 304 Pt. I [S. 300 Fourthly or Exception 4] — Murder or culpable homicide not amounting to murder — Imminently dangerous act: In this case, incident in question took place half an hour after there was abusive language used by nephew/cousin of A-1. There was no grave and sudden provocation by deceased (mother of complainant). Accused fired from a country-made firearm at deceased from a close range. Accused was supposed to know that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death. The Supreme Court held that the High Court erred in applying Exception 4 to S. 300 IPC by holding that it was not a planned crime and there was no prior intention and it took place in the heat of passion on the spur of the moment. It was further held that the case falls under S. 300 Fourthly IPC and conviction under S. 302 IPC was restored. [Awadhesh Kumar v. State of U.P., (2019) 10 SCC 323]

Penal Code, 1860 — Ss. 306 and 107 — Abetment to commit suicide — Ingredients for abetment — Instigation to commit suicide: A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. To draw the inference of instigation it all depends on facts and circumstances of the case. [State of W.B. v. Indrajit Kundu, (2019) 10 SCC 188]

Probation of Offenders Act, 1958 — S. 4 — Grant of probation under: Extension of benefit regarding retention/continuation of service is not permissible. Even in a case where the High Court grants benefit of probation to the accused, held, court has no jurisdiction to pass an order that the employee be retained in service/or grant benefit of continuation in service. [State of M.P. v. Man Singh, (2019) 10 SCC 161]

Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 — S. 24(2) — Persons entitled to benefit of: Sale of land involved in acquisition proceedings after issuance of notification under S. 4, LA Act, 1894, is void. Hence, it does not give any right to subsequent purchasers to invoke provisions of S. 24(2) of 2013 Act. Even proviso to S. 24(2) does not recognise such purchasers. [Shiv Kumar v. Union of India, (2019) 10 SCC 229]

Service Law — Recruitment Process — Eligibility criteria/conditions — Cut-off date/point — Shifting of date of eligibility — What amounts to: In this case, for recruitment to State and Subordinate Services in State of Rajasthan, last date for submission of application forms stipulated was 31-7-2013. Press Note dt. 12-11-2014 was issued granting opportunity to candidates to make corrections in their online application form and change of category on payment of stipulated amount. While determining that this whether amounts to shift in date of eligibility, the Supreme Court held that the Press Note issued only allowed corrections or to change category in application forms already submitted online and did not grant opportunity to candidates to apply afresh. High Court erred in shifting eligibility date on basis of Press Note. [Rajasthan Public Service Commission v. Shikun Ram Firuda, (2019) 10 SCC 271]

Specific Relief Act, 1963 — Ss. 9 and 13 — Agreement to sell immovable property: Agreement to sell property inherited after death of female Hindu dying intestate must be restricted only to share inherited by executant. [Sirdar K.B. Ramachandra Raj Urs v. Sarah C. Urs, (2019) 10 SCC 343]

Tenancy and Land Laws — Ceiling on Land — Lands declared surplus — Identification of: In this case, to put an end to litigation, exercising power under Art. 142 of the Constitution, land at Survey No. 19/P marked in second survey report as “PQRS” declared as actually being Survey No. 129/45/D. The Supreme Court set aside the allotment made to Andhra Prabha Publications, and directed that land to be delivered by Andhra Prabha to appellants within eight weeks. All amounts paid by Andhra Prabha Publications to Government to be refunded within twelve weeks with simple interest at 6% p.a. [State of A.P. v. Grace Sathyavathy Shashikant, (2019) 10 SCC 276]

Trusts and Trustees — Religious and Charitable Endowments and Trusts — Temple — Private or public: In this case, suit was filed by deity through pujaris claiming ownership of temple lands on ground of temple being private temple. Name of deity consistently entered in revenue record from 1969 to 1977 but in year 1979-1980 correction in revenue entries made by substituting name of Collector in place of deity in respect of temple lands asserting temple to be public temple. First appellate court and High Court concurrently found that procedure prescribed under S. 115 of Code not complied with while making correction. In view of this concurrent finding, it was held that change in entry in revenue record in name of Collector vitiated by absence of proper enquiry and opportunity to affected person in terms of S. 115. [State of M.P. v. Murti Shri Chaturbhujnath, (2019) 10 SCC 319]

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