Cases ReportedSupreme Court Cases

Armed Forces — Pension — Computation: Cl. 4(a) of Navy Instruction No. 2/S/74 defined “basic pay” to denote pay “actually drawn” in scale prescribed for rank and group, which was issued to give effect to recommendations of Third Pay Commission and remained in force till 1-1-1986. It was held that appellants’ case was governed by said Instructions as they retired on 1-1-1983. Submission of respondents that submarine pay was excluded from ambit of basic pay as per Special Navy Instructions Nos. 1/S/86, 1/S/9-W and 1/S/08 liable to be rejected, since these notifications came into force subsequent to date of superannuation of appellants. Thus, submarine pay was includible in “pay” for purposes of computing Service Pension of appellants. [N.N. Godfred v. Union of India, (2018) 9 SCC 666]

Associations, Societies and Clubs — Body discharging public function but not amounting to “State” — BCCI: Draft Constitution prepared by Committee of Administrators of BCCI keeping in view recommendations of Justice Lodha Committee Report, approved. [BCCI v. Cricket Assn. of Bihar, (2018) 9 SCC 624]

Constitution of India — Art. 226 — Writs —Habeas corpus: In a habeas corpus petition the High Court must examine at the threshold whether the minor is in lawful or unlawful custody of another person. The Court must take into account the totality of the facts and circumstances whilst ensuring the best interest of the minor child. Further, the fact that the minor child will have better prospects upon return to his/her native country, may be a relevant aspect in a substantive proceedings for grant of custody of the minor child but will not be decisive to examine the threshold issues in a habeas corpus petition. For the purpose of habeas corpus petition, the Court ought to focus on the obtaining circumstances of the minor child having been removed from the native country and taken to a place to encounter alien environment, language, custom, etc. interfering with his/her overall growth and grooming and whether continuance there will be harmful. [Kanika Goel v. State (NCT of Delhi), (2018) 9 SCC 578]

Constitution of India — Arts. 25 and 26 r/w Art. 145(3) — Freedom to follow faith and manage religious affairs: 1934 Constitution of Malankara Orthodox Syrian Church, cannot be said to be in violation of Arts. 25 and 26. [Mathews Mar Koorilos v. M. Pappy, (2018) 9 SCC 672]

Constitution of India — Arts. 27, 19(1)(g), 19(6) and 14 — Haj Policy of Private Tour Operators, 2018, Annexure-A — Rejection of claim of petitioner for registration of PTO for Haj 2018: In this case petitioner applied for quota as private limited company but turnover relied upon was of proprietorship firm without offering any satisfactory explanation therefor nor submitting any relevant documents including conversion of proprietorship firm into private limited company with transfer of its assets and liabilities as alleged. Hence it was held that there was no infirmity in order dt. 31-5-2018 refusing registration for non-compliance with Clause (iv), Appendix A, Haj Policy, 2018. [Ruby Tour Services (P) Ltd. v. Union of India, (2018) 9 SCC 537]

Crimes Against Women and Children — Sexual Abuse and Rape of Minor Girls in Shelter Homes/Child Homes: Repeated interrogation, questioning, visiting/interviewing of victims regarding incident by officials and journalist is hardly conducive for the welfare and well-being of minor victims of sexual abuse and rape in Shelter Homes/Child Homes. Media must be restrained from publishing images of victims even in morphed or blurred form. Media directed to keep interests of victims in mind while dissemination of news. Process to be followed by investigating agencies dealing with case, set out. Various Authorities/Institutions directed to submit reports, for further directions. [Sampurna Behura v. Union of India, (2018) 9 SCC 555]

Criminal Procedure Code, 1973 — Ss. 320 and 482 — Compounding of offences with permission of Court: In this case related to offences under Ss. 406 and 420 IPC, as complainant was satisfied that his amount was received as per direction of Supreme Court, parties were relegated to trial court for compounding. Trial court directed to pass appropriate orders and coercive orders passed against accused withdrawn. [Raj Sharma v. State of U.P., (2018) 9 SCC 660]

Criminal Trial — Confession — Extra-judicial confession/Hearsay — Evidentiary value of: Extra-judicial confession is a weak piece of evidence. It cannot form basis for conviction, unless supported by other substantive evidence. [State of Karnataka v. P. Ravikumar, (2018) 9 SCC 614]

Family and Personal Laws — Hindu Law — Adoption — Proof of — Principles summarized: Factum of adoption and its validity has to be duly proved. Though formal ceremony of giving and taking is essential ingredient for valid adoption, long duration of time during which a person is treated as adopted cannot be ignored. Such fact by itself may carry a presumption in favour of adoption. [Kamla Rani v. Ram Lalit Rai, (2018) 9 SCC 663]

Government Grants, Largesse, Public Property and Public Premises — Recovery of possession/Re-entry by State upon Termination/Cancellation/Resumption/Lapse: In this case lease was expired a long time ago, and was not renewed, but tenants continued to be in possession. Eviction order was passed in such without opportunity of hearing. Tenant cannot claim indefeasible right to continue in premises. Balancing of this principle with fact that rights of tenants under Art. 19(1)(g) of the Constitution might be affected, open auction of such premises in bidding and allotment to highest bidder, directed. On facts, balancing rights of both parties, occupation of premises by tenant, directed not to be disturbed till bidding process is completed. [Bharmal Medical Store v. State of M.P., (2018) 9 SCC 617]

Hindu Law — Marriage and Divorce — Grounds for Divorce — Irretrievable breakdown of marriage: In this case divorce was granted ex parte by impugned judgment, thus prejudicing rights of appellant wife. It was held that logical consequence would normally be to set aside impugned judgment and remit matter for fresh consideration. However, considering that parties were willing to part company on mutually acceptable terms, appellant husband was directed to pay Rs 30 lakhs towards permanent alimony plus Rs 5 lakhs by way of gesture of goodwill towards her medical expenses finding that parties were living separately for more than a decade and there was absolutely no chance of reconciliation, no issue was born from wedlock, appellant wife ailing for long time and staying with her relatives having no independent income while respondent husband was quite resourceful residing in independent bungalow in posh colony in Pune. [Usha Uday Khiwansara v. Uday Kumar Jethamal Khiwansara, (2018) 9 SCC 569]

Motor Vehicles Act, 1988 — Ss. 149, 147 and 168 — Third-party insurance: When award has been passed against insured owner, it is to be paid by insurer and recovered from owner. Insurer is not required to file a suit. It may initiate a proceeding before executing court concerned as if dispute between insurer and owner was subject-matter of determination before Tribunal and issue is decided against owner and in favour of insurer. [Shamanna v. Oriental Insurance Co. Ltd., (2018) 9 SCC 650]

National Security Act, 1980 — Ss. 3(4) and 8 — Requirement of reporting detention to State Government “forthwith” — “Forthwith” — Connotation of: “Forthwith” does not mean instantaneous, but without undue delay and within reasonable time at the earliest possible. Further held, fact whether detention order was reported to State Government within reasonable time and without undue delay is to be ascertained from facts of each case. Delay between date of detention and date of submitting report to State Government must be due to unavoidable circumstances beyond control of authority and not because of administrative laxity. [Hetchin Haokip v. State of Manipur, (2018) 9 SCC 562]

Payment of Gratuity Act, 1972 — Ss. 4(5) and (6) — Forfeiture of gratuity — When permissible: Forfeiture of gratuity on the ground of misconduct which constitutes an offence involving moral turpitude, is permissible only if the person is convicted by a court of competent jurisdiction for the said offence. [Union Bank of India v. C.G. Ajay Babu, (2018) 9 SCC 529]

Penal Code, 1860 — S. 304 Pt. I — Culpable homicide not amounting to murder — Inference of, from nature of injury inflicted: In this case death of one was due to gunshot injury on thigh, and injuries to one other using other weapons. Conviction of accused for firing said gunshot alone, for culpable homicide not amounting to murder, and acquittal of the rest of the accused, confirmed. [State of M.P. v. Gangabishan, (2018) 9 SCC 574]

Penal Code, 1860 — Ss. 302, 201, 392 and 397 — Murder trial: High Court reversed conviction of all respondent-accused due to inconsistencies and material contradiction present in this case, hence, acquittal confirmed. [State of Karnataka v. A.B. Mahesha, (2018) 9 SCC 612]

Penal Code, 1860 — Ss. 498-A and 306 — Bride committing suicide: In this case harassment due to alleged dowry demand and cruelty meted out to deceased by appellant-accused husband, having illicit relationship with another woman, were established as causes of suicide. It was held that High Court rightly maintained conviction of appellant under Ss. 498-A and 306 IPC, with RI for 2 and 5 years, respectively. Furthermore, held, there were no grounds for reduction of sentence. [Siddaling v. State, (2018) 9 SCC 621]

Cases ReportedSupreme Court Cases

Arbitration and Conciliation Act, 1996 — S. 34(5) and Ss. 34(6), 34(3) and 29-A: Requirement of issuance of prior notice to the other party and filing of an affidavit endorsing compliance with the said requirement under S. 34(5), is directory and not mandatory. Considerations of convenience and justice are uppermost, and if general inconvenience or injustice results, without promoting the real aim and object of the enactment, the provision must be declared to be directory. Subsection (5) is not a condition precedent, but a procedural provision which seeks to reduce the delay in deciding applications under S. 34. Further, to construe such a provision as being mandatory would defeat the advancement of justice as it would provide the consequence of dismissing an application filed without adhering to the requirements of S. 34(5), thereby scuttling the process of justice by burying the element of fairness. However, it shall be the endeavour of every court in which a S. 34 application is filed, to stick to the time-limit of one year from the date of service of notice to the opposite party by the applicant, or by the court, as the case may be. Further, in case the court issues notice after the period mentioned in S. 34(3) has elapsed, every court shall endeavour to dispose of the S. 34 application within a period of one year from the date of filing of the said application similar to what has been provided in S. 14 of Commercial Courts Act, 2015. Also, in cases covered by S. 10 r/w S. 14 of the Commercial Courts Act, 2015, the Commercial Appellate Division shall endeavour to dispose of appeals filed before it within six months, as stipulated and appeals which are not so covered will also be disposed of as expeditiously as possible, preferably within one year from the date on which the appeal is filed. [State of Bihar v. Bihar Rajya Bhumi Vikas Bank Samiti, (2018) 9 SCC 472]

 Civil Procedure Code, 1908 — Or. 39 Rr. 1 & 2 — Interim stay — Grant or refusal: While passing an order on interim stay application, justifiable reason(s) to support grant or rejection of prayer as to stay must be stated in the order keeping in view the facts and law applicable to the controversy involved. [Birwati Chaudhary v. State of Haryana, (2018) 9 SCC 458]

Civil Procedure Code, 1908 — Or. 41 R. 27, Or. 41 R. 23-A & Or. 41 R. 25 and Ss. 96 & 100 — Procedure to be followed by appellate courts after receiving additional evidence: Once additional evidence is permitted at appellate stage, other side must be given opportunity to lead rebuttal evidence to counter additional evidence. Appellate courts have two options (i) to take recourse remanding entire matter under Or. 41 R. 23-A for retrial, or (ii) to make limited remand under Or. 41 R. 25 by retaining main appeal with itself so that parties can lead evidence on particular issues in light of additional evidence and then to decide main appeal on merits. [Corpn. of Madras v. M. Parthasarathy, (2018) 9 SCC 445]

Civil Procedure Code, 1908 — Ss. 96(3), 100, 114 & Or. 23 R. 3-A: Challenge to compromise decree is not permissible except on ground of fraud. Such challenge can be by way of fresh suit, or review petition. [Ved Pal v. Prem Devi, (2018) 9 SCC 496]

Constitution of India — Arts. 21, 25, 19 and 29 and Preamble — Cow vigilantism and incidents of lynching solely based on perception: There is necessity of strengthening police administration. Pluralism and tolerance is essential values constituting building blocks of free and democratic society. It is the duty of State to promote fraternity amongst all citizens so that dignity of every citizen is protected, nourished and promoted, and to prevent crime and untoward incidents. Lynching affront to rule of law and exalted values of Constitution itself while vigilantism for whatever purpose or borne out of whatever cause undermines legal institutions of State. Such extrajudicial attempts under guise of law required to be nipped in bud lest it leads to anarchy and lawlessness corroding nation. It is the primary responsibility of State to foster secular, pluralistic and multicultural social order so as to allow free play to ideas and beliefs and coexistence of mutually contradictory perspectives. Directions covering areas of preventive, remedial and punitive measures, issued. [Tehseen S. Poonawalla v. Union of India, (2018) 9 SCC 501]

Contempt of Court — Civil Contempt — Purging of contempt/Opportunity to comply: Once the order dt. 8-3-2001 passed by Single Judge directing appellant FCI to frame scheme or to find ways to absorb respondent workmen within one year had attained finality it was required to be complied with in pith and substance. [Food Corpn. of India v. W.B. FCI Workmen’s Union, (2018) 9 SCC 469]

Criminal Procedure Code, 1973 — S. 378(3) — Application for grant of leave to appeal under — Parameters which High Court should keep in mind while deciding — Principles reiterated: In this case Trial court acquitted respondent-accused of charge of offences punishable under Ss. 363, 366, 376 and 120-B IPC. Application was filed by State for leave to appeal against such acquittal before High Court and High Court rejected it without assigning any reasons. Such casual approach of High Court, disapproved by the Supreme Court and matter was remanded back to it for decision afresh on merits, keeping in view law laid down by Supreme Court in Sujay Mangesh Poyarekar, (2008) 9 SCC 475. [State of U.P. v. Anil Kumar, (2018) 9 SCC 492]

Criminal Procedure Code, 1973 — S. 482: Quashment of subsequent criminal proceedings based on new set of facts merely because earlier criminal proceedings related to present matter were quashed, not proper. [Om Prakash Singh v. State of Bihar, (2018) 9 SCC 440]

Criminal Trial — Practice and Procedure — Abatement — Abatement of appeal: As there was report by High Court along with copy of death certificate regarding death of sole respondent in appeal, appeal stood abated against deceased and was dismissed as having abated. [State of Karnataka v. Srinivasa, (2018) 9 SCC 463]

Environment Law — Vehicular Pollution: NGT passed an order of plying of only CNG buses/coaches and other vehicles at Delhi Airport. Due to incompatibility of other vehicles to CNG mode, direction issued by NGT restricted to only buses and coaches. [Narangs International Hotels (P) Ltd. v. Society for Protection of CHETNA, (2018) 9 SCC 499]

Income Tax Act, 1961 — S. 10(20) (as amended by the Finance Act, 2002) — Noida Authority: After omission of S. 10(20-A) the only provision under which a body or authority can claim exemption was S. 10(20) and further, local authority having been exhaustively defined in the Explanation to S. 10(20), an entity has to fall under S. 10(20) to claim exemption. Further, the Explanation now containing the exhaustive definition of local authority, the definition of local authority as contained in S. 3(31) of the General Clauses Act, 1897 no more applicable. Also, the Explanatory Note to Finance Act, 2002 clearly indicate that by the Finance Act, 2002 the exemption under S. 10(20) had been restricted to Panchayats and Municipalities as referred to in Arts. 243-P(d) and 243-P(e) of the Constitution, and further by deletion of clause (20-A), the income of the Housing Boards of the States and of Development Authorities became taxable. Noti. dt. 24-12-2001 was issued by the Governor in exercise of the power under the proviso to clause (1) of Art. 243-Q of the Constitution of India specifying the appellant Authority to be an “industrial township” with effect from the date of the notification in the Official Gazette. The proviso did not contemplate constitution of an industrial establishment as a Municipality, rather clarified that an exception where Municipality under clause (1) of Art. 243-Q may not be constituted in an urban area. Further, the object of issuance of notification was to relieve the mandatory requirement of constitution of a Municipality in a State in the circumstances as mentioned in the proviso but exemption from constituting Municipality does not lead to mean that the industrial establishment which is providing municipal services to an industrial township is same as Municipality as defined in Art. 243-P(e).  Thus, held, industrial township as specified under Noti. dt. 24-12-2001 was not akin to Municipality as contemplated under Art. 243-Q. Hence, held, appellant Authority is not covered by the definition of “local authority” as contained in the Explanation to S. 10(20). [NOIDA v. CIT, (2018) 9 SCC 351]

Income Tax Act, 1961 — S. 194-A(3)(iii)(f) — Benefit of exemption given under Noti. No. S.O. 3489 dt. 22-10-1970 — Tax deduction at source on payment of interest by bank to Noida Authority: There is a well-marked distinction between a body which is created by the statute, on the one hand, and a body which after having come into existence is governed in accordance with the provisions of the statute, on the other. For instance, a company incorporated under the Companies Act is not a statutory body because it is not created by the statute but it is a body created in accordance with the provisions of the statute. When the words “by and under an Act” are preceded by the words “established”, the reference is to a corporation established, that it is brought into existence, by an Act or under an Act i.e. the term refers to a statutory corporation as contrasted from a non-statutory corporation incorporated or registered under the Companies Act. The preamble of that Act reads “an Act to provide for the constitution of an Authority for the development of certain areas in the State into industrial and urban township and for matters connected therewith”. Thus, the Act itself provided for constitution of an authority. Further, “the Authority” had been constituted by a Noti. dt. 17-4-1976 issued under S. 3 of the 1976 Act. Further, following the ruling in Satish Prabhakar Padhye, (2010) 4 SCC 378, wherein the State Financial Corporation was stated to be a corporation established under a Central Act, held, the Authority was covered by the Noti. dt. 22-10-1970. [CIT v. Canara Bank, (2018) 9 SCC 322]

Income Tax Act, 1961 — S. 194-I r/w S. 10(20) (as amended by the Finance Act, 2002) — Circular dt. 30-1-1995 — Deduction of income tax at source on payment of lease rent to Noida/Greater Noida Authority: The definition of rent as contained in the Explanation to S. 194-I is a very wide definition and payment to be made as annual rent is rent within the meaning of S. 194-I. Further, Circular dt. 30-1-1995 granting exemption from deduction of income tax at source, was issued on the strength of Ss. 10(20-A) and 10(20) as it existed at the relevant time and the very basis of the circular has been knocked out by the amendments made by the Finance Act, 2002. Thus, the circular could not be relied on by Noida/Greater Noida Authorities to contend that there was no requirement of deduction of tax at source. Therefore, tax is required to be deducted at source on payment of lease rent to Greater Noida Authority, as per S. 194-I. [NOIDA v. CIT, (2018) 9 SCC 342]

Motor Vehicles Act, 1988 — Ss. 166 & 173 and Sch. II — Compensation: Award of lump sum compensation without following multiplier method is not permissible. Compensation has to be just compensation. Mode of award in cases of permanent disability has to be based on functional disability or actual loss of income/income-earning capacity. Due to changed scenario in view of cost of living and current rate of inflation, Second Schedule provided under Motor Vehicles Act became redundant. [Anant v. Pratap, (2018) 9 SCC 450]

Penal Code, 1860 — S. 302 — Accused allegedly strangulated his wife to death: A-1(respondent-accused) was allegedly having illicit relationship with A-2 (since dead) and on account of which, there was altercation between A-1 and his wife, and he allegedly strangulated her to death. However, conviction of A-1 under S. 302, was held to be rightly reversed by High Court. [State of Karnataka v. Srinivasa, (2018) 9 SCC 460]

Penal Code, 1860 — Ss. 302, 147 and 148 r/w S. 149 — Murder trial — Appeal against acquittal: Re-appreciation of evidence was done by High Court as Trial court did not properly appreciate evidence and approach of trial court was found perverse. Testimony of eyewitnesses was also found credible. FIR was lodged promptly. Evidence of eyewitnesses was corroborated by medical evidence. Prosecution case was further corroborated by recovery of weapons from accused. Bloodstains found on weapons recovered from accused, were of blood group of deceased, which was yet another piece of evidence corroborating evidence of eyewitnesses and strengthening prosecution case. Hence, reversal of acquittal by High Court, confirmed. [Motiram Padu Joshi v. State of Maharashtra, (2018) 9 SCC 429]

Public Accountability, Vigilance and Prevention of Corruption — Vigilance Authorities: Validity of appointments to post of Central Vigilance Commissioner (CVC) and Vigilance Commissioner (VC), affirmed. Ground of violation of principle of impeccable integrity and institutional integrity, rejected as aspersions were based on false, vague, non-specific, unsubstantiated and/or baseless allegations/representations/complaints. [Common Cause v. Union of India, (2018) 9 SCC 382]

Service Law — Regularisation — Entitlement to regularization: The issue raised in this case was whether the employees employed to carry out appellant FCI’s business operations at its branch offices are contractual employees or employees of appellant. Findings of Tribunal to effect that (i) Agreement with contract labourers for doing work had ended in 1991 and thereafter it was not renewed; (ii) All 955 workers were paid wages directly by appellant; (iii) Nature of work which these workers were doing was of perennial nature in the set-up of FCI; (iv) All 955 workmen were performing their duties as permanent workmen; and (v) No evidence was adduced by appellant to rebut claim of respondent Union; were affirmed by the Single Judge as well as Division Bench. The Supreme Court held that the findings of fact recorded against appellant by Tribunal were based on sufficient evidence. Besides, said findings being concurrent in nature were binding on Supreme Court while hearing appeals under Art. 136 of the Constitution. Furthermore, very fact that appellant FCI failed to adduce any evidence to prove their case, Tribunal was justified in drawing adverse inference against them. Respondent employees were entitled to regularisation in services of appellant FCI. [Food Corpn. of India v. Employees Union, (2018) 9 SCC 464]

Cases ReportedSupreme Court Cases

Arbitration Act, 1940 — S. 29 — Award of pre-reference, pendente lite and future interest by arbitrator — Permissibility of: Under the 1940 Act, an arbitrator has power to grant pre-reference interest under the Interest Act as well as pendente lite and future interest, however, he is constricted only by the fact that an agreement between the parties may contain an express bar to the award of pre-reference and/or pendente lite interest. Further, the Court has evolved the test of strict construction of such clauses, and unless there is a clear and express bar to the payment of interest that can be awarded by an arbitrator, clauses which do not refer to claims before the arbitrators or disputes between parties and clearly bar payment of interest, cannot stand in the way of an arbitrator awarding pre-reference or pendente lite interest. Further, unless a contractor agrees that no claim for interest will either be entertained or payable by the other party owing to dispute, difference, or misunderstandings between the parties or in respect of delay on the part of the engineer or in any other respect whatsoever, leading the Court to find an express bar against payment of interest, a clause which merely states that no interest will be payable upon amounts payable to the contractor under the contract would not be sufficient to bar an arbitrator from awarding pendente lite interest. Further, the grant of pendente lite interest depends upon the phraseology used in the agreement, clauses conferring power relating to arbitration, the nature of claim and dispute referred to the arbitrator, and on what items the power to award interest has been taken away and for which period. Also, the position under S. 31(7) of the 1996 Act, is wholly different, inasmuch as S. 31(7) of the 1996 Act sanctifies agreements between the parties and states that the moment the agreement says otherwise, no interest becomes payable right from the date of the cause of action until the award is delivered. [Reliance Cellulose Products Ltd. v. ONGC Ltd., (2018) 9 SCC 266]

Citizens, Migrants and Aliens — National Register of Citizens of India (NRC): Complete draft prepared after claims/objections cannot be basis for any action by authorities. Authorities must grant reasonable opportunity to each concerned. Statements made by authorities before media touching upon matters pending before Supreme Court, strongly deprecated. [Assam Public Works v. Union of India, (2018) 9 SCC 229]

Civil Procedure Code, 1908 — Or. 2 and Or. 6 R. 17, Or. 14 R. 5 and Or. 18 R. 17 — Suit to include whole claim: When family property dispute resulted in two different civil suits before two different courts, respective claims of parties are required to be decided in one suit rather than in two different suits. [P.K. Narayanan Raja v. Ambika, (2018) 9 SCC 164]

Civil Procedure Code, 1908 — Ss. 96 and 100 — Appeal — Locus standi to file appeal: Appeal by person who was not a party to the civil suit or in first appeal is not maintainable when the judgment in appeal is not adverse to any party in the suit. [Lakshmi Sreenivasa Coop. Building Society Ltd. v. Puvvada Rama, (2018) 9 SCC 251]

Education Law — Fee Structure/Capitation Fee/Fee Regulatory Committee — Statutory prohibition of fees in excess of that prescribed by Fee Fixation Committee constituted under T.N. Educational Institutions (Prohibition of Collection of Capitation Fee) Act, 1992 — Institutions covered by: T.N. Educational Institutions (Prohibition of Collection of Capitation Fee) Act, 1992 is applicable to medical and engineering courses in Annamalai University deemed to be constituted under Annamalai University Act, 2013. For this it is not necessary to notify a statutory university like present one as an “educational institution” under S. 2(b) of 1992 Act. In relation to imparting of education leading to a degree in Medicine or Engineering, S. 4(2-A) of 1992 Act has been given an overriding effect by incorporating non obstante provision. S. 4(2-A), unlike S. 4(1) of 1992 Act does not require any notification by the Government. [M. Aamira Fathima v. Annamalai University, (2018) 9 SCC 171]

Government Contracts and Tenders Termination/Discharge/Repudiation/ Cancellation/Suspension of Contract — Generally — Proper exercise of power by State: In this case dealership of petroleum products was terminated as factum of breach of conditions of dealership agreement was established. Division Bench of High Court issued mandamus in favour of party who breached standard requirements by overturning Single Judge order. The Supreme Court held that writ court is not appellate court nor can it substitute its decision in administrative matters where there is no case of arbitrariness. Consequently, termination of dealership was upheld. [Indian Oil Corpn. Ltd. v. T. Natarajan, (2018) 9 SCC 235]

Information Technology Act, 2000 — S. 70(1) as existing prior to Amendment Act 10 of 2009 r/w S. 17 r/w Ss. 2(o) and 2(k) of Copyright Act, 1957 — Power to declare “protected system” in respect of “government work” — Permissibility of: The provisions of S. 70(1) of the IT Act have to be read conjointly with Ss. 2(k) and 17 of the Copyright Act, 1957 in order to give due effect to related provisions of the two different enactments made by the legislature. Further, plainly read, the power of declaration of a “protected system” may invade a copyright which may be vested in a private owner, however, such a situation is taken care of by the provisions contained in S. 2(k) of the Copyright Act, 1957 which defines “government work” and S. 17(d) of the Copyright Act, 1957 which vests in the Government, copyright in a government work as defined by S. 2(k). The balance is struck by S. 17 between copyright pertaining to any other person and copyright vested in the Government in a “government work”. Therefore, S. 70 cannot be construed independent of the provisions of the Copyright Act. If S. 70 of the IT Act has to be read in conjunction with Ss. 2(k) and 17 of the Copyright Act, 1957 the rigours that would control the operation of S. 70(1) of the IT Act are clearly manifested. [B.N. Firos v. State of Kerala, (2018) 9 SCC 220]

Land Acquisition Act, 1894 — S. 23 — Market Value — Compensation — Determination of — Particular class of land — Wet lands vis-à-vis dry and chira lands: Award of Rs 2000 per cent for wet land appears is just, proper and reasonable keeping in view nature of land, its surroundings and location and similarity with land owned by other landowners to whom compensation was awarded at Rs 2000 per cent. [K.S. Rajan v. State of Kerala, (2018) 9 SCC 167]

Penal Code, 1860 — Ss. 326, 331, 343 and 346: In this case of illegal detention and custodial torture of one B, by appellant-accused (police officials), High Court reversed their acquittal, convicting them under Ss. 326, 331, 343 and 346 IPC and imposing 2 yrs’, imprisonment upon them. Occurrence was of year 1992 and appellants, after acquittal by trial court, also attained age of superannuation. One was 80 yrs old and the other was more than 70 yrs. Appellants have already undergone about 15 months’ imprisonment and victim was also given government job and is presently working. Hence, considering facts and circumstance of case, imprisonment of appellants was reduced by the Supreme Court to period already undergone. However, reduction of sentence was in peculiar facts and circumstances of instant case and the same may not be treated as precedent. [Bhagwan Dass v. State of Haryana, (2018) 9 SCC 227]

Penal Code, 1860 — Ss. 363, 366 and 376 — Abduction and rape — Age of prosecutrix — Relevance: In this case, appellant-accused was convicted by High Court under Ss. 363, 366 and 376. Evidence of PW 6 (prosecutrix) regarding incident was contradicted by her previous statement under S. 161 CrPC. Materials on record indicated that PW 6 remained in company of appellant for about 12 days until she was recovered and she had freely moved around with appellant, in course of which movement, she came across many people at different points of time, yet, she did not complain of any criminal act on part of appellant. The Supreme Court held that in view of above, age of prosecutrix becomes relevant for determining whether she was a major so as to give her consent. Herein, prosecution had not succeeded in proving that prosecutrix was a minor on date of alleged occurrence. Possibility of prosecutrix being a consenting party cannot be altogether ruled out. Hence, order of High Court was set aside and appellant was acquitted on benefit of doubt. [Rajak Mohammad v. State of H.P., (2018) 9 SCC 248]

Police — Police Atrocities/Inaction/Custodial Death/Custodial Violence/ Illegal Detention: In this case involving allegation of custodial torture, parties relegated to High Court permitted to seek appropriate remedy. It was, however, clarified that grant of such liberty should not be construed as expression of any doubt regarding investigation process. [Sahil Sharma v. Union of India, (2018) 9 SCC 234]

Prevention of Corruption Act, 1988 — Ss. 7, 13(1)(d) and 20 — Illegal gratification: Demand and acceptance of illegal gratification is sine qua non to constitute offence under Ss. 7 and 13(1)(d). In this case demand of money by first accused and acceptance of bribe amount by second accused at the behest of first accused, was proved by evidence of complainant and trap witness. The Supreme Court held that findings of trial court did not suffer from any infirmity and High Court was not justified in setting aside conviction of both accused. No explanation was also offered by accused to rebut presumption under S. 20, hence, conviction under Ss. 7 and 13(1)(d), restored. [State of Gujarat v. Navinbhai Chandrakant Joshi, (2018) 9 SCC 242]

Service Law — Judiciary — Appointment — Nature of appointment: Appointments on ad-hoc basis are not “contractual appointment” when against sanctioned posts or on pay scale. Hence, appointment of appellants as Fast Track Court Judges for five years which was extended against sanctioned posts on ad hoc basis on pay scale, not contractual appointment. [K. Anbazhagan v. High Court of Madras, (2018) 9 SCC 293]

Service Law — Recruitment Process — Eligibility criteria/conditions — Relaxation of norms/conditions: In this case, for recruitment to posts of Assistant Traffic Inspectors, 75% was by promotion and 25% by direct recruitment, however, due to existence of large number of vacancies and dire need of Assistant Traffic Inspectors but absence of qualified people for promotion, relaxation of requirement of experience of 5 yrs was given, which was notified as part of educational qualifications in terms of Kolhapur Municipal Corporation Regulation No. 119 dt. 14-5-1991, and appellants (15 candidates) were appointed by direct recruitment. It was held by the Supreme Court that interest of justice would be served if appellants and others recruited along with them who had worked for over 23 yrs now are allowed to continue as having been regularly recruited and appointed since in case their appointments are quashed there would only be 1 Asstt. Traffic Inspector actually working and 2 Assistant Traffic Inspectors eligible for promotion against 25 available posts. It was also noted that notification relaxing criteria was also challenged by respondent Trade Union only after appointments were made. [Sunil Shamrao Jadhav v. Kolhapur Municipal Corpn., (2018) 9 SCC 215]

Trade Marks Act, 1999 — Ss. 9, 11 and 18 — Registration of the phonetically similar mark “NANDHINI” to the earlier registered/in use mark “NANDINI” — Test of deceptiveness/confusion — Application of: Registration is permissible when such latter mark is used for different goods/nature of business and visual appearance of two marks is so different that average person of ordinary intelligence would not be deceived or confused between goods concerned. Further, registration of trade mark qua certain goods falling under one class does not vest monopoly over the entire class of goods with the proprietor of registered mark. [Nandhini Deluxe v. Karnataka Coop. Milk Producers Federation Ltd., (2018) 9 SCC 183]

Cases ReportedSupreme Court Cases

Arbitration and Conciliation Act, 1996 — S. 34 and S. 13(6) — Practice and procedure qua applications made for setting aside an award under S. 34: An application for setting aside an arbitral award will not ordinarily require anything beyond the record that was before the arbitrator. However, if there are matters not contained in such record, and are relevant to the determination of issues arising under S. 34(2)(a), they may be brought to the notice of the Court by way of affidavits filed by both parties. Further, cross-examination of persons swearing to the affidavits should not be allowed unless absolutely necessary. [Emkay Global Financial Services Ltd. v. Girdhar Sondhi, (2018) 9 SCC 49]

Armed Forces — Appointment — Criteria/Eligibility — Post of DGMS (Army): Word “inter se” in Para (i) of Administrative Instructions dt. 10-7-1992, issued by Government of India, Ministry of Defence, inter alia, stipulating “inter se seniority and suitability of officers in rank of Lieutenant General (and equivalent) … shall be assessed in light of their earlier experience of serving in particular services …” applies both to seniority as well as suitability. As far as inter se seniority is concerned, person who is senior gets precedence. Further held, while assessing “suitability” fitness of the incumbent to post is to be measured and “inter se suitability” has reference to assessing suitability of all eligible officers. Respondent was senior-most Lieutenant General fulfilling eligibility criteria for appointment to post of DGMS (Army). Finding in Para 7 of Note dt. 23-1-2018 issued by DGAFMS that since respondent was newly promoted from rank of Major General, he did not have “previous exposure to working and environs of IHQ of MoD” and hence proposing him to be appointed as DGMS (AF) instead of DGMS (Army) not fair and objective consideration of his suitability to post as it is not necessary to have work experience in IHQ alone. While affirming conclusion of AFT quashing appointment one S as DGMS (Army), but disagreeing with its direction to appoint respondent straightaway to said post, matter remitted to Raksha Mantri for fair, dispassionate and objective consideration. [Union of India v. Manomoy Ganguly, (2018) 9 SCC 65]

Bangalore Development Authority Act, 1976 (12 of 1976) — Ss. 27, 17, 36, 52, 18, 19 and 15 — Benevolent development scheme in public interest — Delay in implementation of, after issuance of preliminary notification under S. 17, BDA Act: Time constraints under S. 11-A, LA Act not applicable to scheme under BDA Act. Shock expressed at non-consideration of precise law required to adjudicate matter, laid down by Constitution Bench in Offshore Holdings (P) Ltd., (2011) 3 SCC 139. With regard to limitation of 5 years under S. 27 of BDA Act, it was clarified that there is a vast difference between provisions and action taken pursuant to preliminary notification (S. 17) and final notification (S. 19) under BDA Act. [BDA v. State of Karnataka, (2018) 9 SCC 122]

Constitution of India — Art. 136: Permission to file SLPs against High Court order was granted to informant. Subsequently, petitions for withdrawal of SLPs filed by informant. It was held that proceedings of criminal case, specially of instant nature i.e. case under S. 396 IPC, cannot depend on whims of informant, hence, prayer for withdrawal of SLPs rejected. [Amar Nath Jha v. Nand Kishore Singh, (2018) 9 SCC 144]

Constitution of India — Art. 21 — Right to Proper Legal Representation on part of accused lodged in jail: To facilitate dialogue between counsel and his client, which would further cause of justice and make legal aid meaningful, videoconferencing between counsel for accused on one hand and accused lodged in jail or anybody knowing the matter on the other, was made mandatory as per directions of Supreme Court Legal Services Committee (SCLSC). Said directions affirmed, and directed to be extended nationwide. [Imtiyaz Ramzan Khan v. State of Maharashtra, (2018) 9 SCC 160]

Constitution of India — Arts. 233 to 235 and 32 — Public Interest Litigation (PIL): Directions were sought for immediate filling of unfilled vacancies in subordinate judiciary leading to pendency of matters but Supreme Court declined to interfere as steps to fill up vacancies had already been taken by High Courts. [Ashwini Kumar Upadhyay v. Union of India, (2018) 9 SCC 64]

Constitution of India — Arts. 80(4), 81, 158 and 171 — Elections to Council of States (Rajya Sabha): Introduction of NOTA in election to Council of States (Rajya Sabha) by Election Commission is not permissible, as it is in opposition to discipline of political parties. Votes polled in election to Council of States being of transferable nature, NOTA would alter value of vote. Introduction of NOTA is anathema to free and fair election to Rajya Sabha and brings in likelihood of promoting defection. Distinctions between elections to Council of States (Rajya Sabha)/Legislative Council and House of People (Lok Sabha)/Legislative Assembly (Vidhan Sabha), summarized. [Shailesh Manubhai Parmar v. Election Commission of India, (2018) 9 SCC 100]

Motor Vehicles Act, 1988 — S. 166 — Compensation — Computation of income: Deceased was aged 38 yrs at the time of death and in business of selling desi ghee and namkin bhujia, with monthly income of Rs 3500. Tribunal however, held that deceased had an unnamed shop in a small village not paying tax, assessed income at Rs 1200 p.m. and awarded Rs 1,15,200 after applying a multiplier of 12, with interest at 15 per cent p.a. It was held by the Supreme Court that income should have been assessed at Rs 2500 p.m. having due regard to nature of business, date of accident and all circumstances of case. Following Pranay Sethi, (2017) 16 SCC 680, quantum of compensation recomputed as monthly income: Rs 2500, and annual income: Rs 30,000, deduction of one-third for personal expenses: Rs 10,000, net annual income: Rs 20,000, future prospects at 40 per cent: Rs 8000, total income: Rs 28,000, using appropriate multiplier 16, total compensation for loss of dependency: Rs 4,48,000. For conventional heads Rs 75,000, total compensation: Rs 5,23,000, appellants entitled to interest @ 9 per cent p.a. from date of petition until payment. [Santosh Devi v. Mahaveer Singh, (2018) 9 SCC 146]

Penal Code, 1860 — Ss. 363 and 366 — Conviction under: Appellant-accused was sentenced to 7 years’ imprisonment with Rs 1000 fine but there was subsequent compromise between parties. De facto complainant, since married to another person and living happily, had no complaint against appellant. In such circumstances, conviction confirmed, but, sentence modified, being limited to period already undergone. [Sajid v. State of Uttarakhand, (2018) 9 SCC 159]

Penal Code, 1860 — Ss. 396 and 412 — Dacoity with murder: High Court appreciated every aspect of matter on facts and considered entire material on record, while acquitting two accused and remanded appeal of third accused for consideration by Juvenile Justice Board on finding arrived at by High Court, that he was a juvenile at the time of commission of said offence and as no material was present, to disagree with reasons assigned and conclusions arrived at by High Court, High Court judgment affirmed. [Amar Nath Jha v. Nand Kishore Singh, (2018) 9 SCC 137]

Public Premises (Eviction of Unauthorised Occupants) Act, 1971 — Ss. 3(b), 4 and 7(3) — Jurisdiction of Estate Officer with respect to proceedings relating to public premises: An Estate Officer has to exercise his jurisdiction in relation to public premises falling in local limits specified in notification issued under S. 3 of PP Act, 1971 for exercise of that jurisdiction. [Savatram Rampratap Mills v. Radheyshyam, (2018) 9 SCC 154]

SCs, STs OBCs and Minorities — Caste/Tribe Certificate — Remand — When warranted — Non-consideration of entire evidence: When a party relies upon any evidence in support of his case, the Court/Committee/authority, as the case may be, especially original court is under obligation to apply its mind to entire evidence produced and record its reasoned findings. Consideration of entire evidence in accordance with law is important. [Vilas Dinkar Bhat v. State of Maharashtra, (2018) 9 SCC 89]

Service Law — Pay — Pay fixation — Pay protection — Entitlement to — Resolution dt. 27-11-1991 granting benefit of pay scale of Rs 700-1600 from their initial appointment date in Senior College to “rest category” Teachers: Security of tenure for teacher, who dedicates her life for education of students is of utmost importance and insecurity should not be created, more so when they are through a process of really subterfuge of giving artificial breaks. But for artificial break of one day which was due to change in curriculum, appellant was in continuous service for two decades and that was how it was really understood by the college as well as the State Government since they had given pension to her which is admissible only after 20 years of service. Appellant is entitled to be treated in pay scale of Rs 700-1600 and all benefits of Resolution dt. 27-11-1991. Respondents directed to calculate emoluments due to appellant and disburse the same within stipulated time failing which it would carry simple interest @ 12% p.a. [Ahalya A. Samtaney v. State of Maharashtra, (2018) 9 SCC 92]

Taxation — Concession/Exemption/Incentive/Rebate/Subsidy — Exemption notification or exemption clause: General principle that in case of ambiguity, a taxing statute should be construed in favour of the assessee, is not applicable to an exempting provision. Every taxing statute including, charging, computation and exemption clauses, at the threshold stage should be interpreted strictly. Further, though in case of ambiguity in charging provisions, the benefit necessarily goes in favour of assessee, but for an exemption notification or exemption clause the benefit of ambiguity must be strictly interpreted in favour of the Revenue/State. [Commr. of Customs v. Dilip Kumar & Co., (2018) 9 SCC 1]

W.B. Premises Tenancy Act, 1997 (37 of 1997) — S. 5(8) (as incorporated by Amendment Act 14 of 2001) — Statutory liability to pay municipal taxes on tenants as occupiers, post amendment — Supersession of contractual liability to pay municipal taxes and enhancements in municipal taxes as part of rent — Effect of: Liability to pay enhanced municipal taxes by tenant as occupier, held, having become a statutory liability, there was no requirement on part of landlord of obtaining formal order of enhancement of rent from Rent Controller. [Popat & Kotecha Property v. Ashim Kumar Dey, (2018) 9 SCC 149]

Cases ReportedSupreme Court Cases

Constitution of India — Arts. 239-AA and 145(3) — Interpretation of Art. 239-AA: Appeals on the matter need to be heard by a Constitution Bench as these matters involve substantial questions of law as to the interpretation of Art. 239-AA. Registry directed to place papers before Chief Justice for constituting appropriate Constitution Bench. [State (NCT of Delhi) v. Union of India, (2018) 8 SCC 813]

Copyright Act, 1957 — Ss. 51 and 55 — Infringement of copyright — Establishment of: Comparison of software of plaintiff with that of defendant by a foreign expert, permitted due to acquiescence of defendant to appointment of such foreign expert and in the light of other facts of the case. [Diyora & Bhanderi Corpn. v. Sarine Technologies Ltd., (2018) 8 SCC 804]

Motor Vehicles Act, 1988 — S. 149 — Insurer’s Liability — Existence of, even in cases of fake/invalid driving licence: Fake/invalid licence of driver of offending vehicle can absolve insurer of liability and make owner of vehicle liable, if it has been established that owner was aware of fact that licence was fake/invalid and still permitted driver to drive the vehicle. [Ram Chandra Singh v. Rajaram, (2018) 8 SCC 799]

Cases ReportedSupreme Court Cases

Arbitrability of copyright disputes under Indian law: This article is an attempt to analyse some interesting Indian judicial precedents with respect to arbitrable and non-arbitrable aspects of copyright related commercial disputes. [Arbitrability of Copyright Disputes under Indian Law by Gaurav Pachnanda , (2018) 8 SCC (J-1)]

Bias of arbitrator: This article aims to look at biases in the context of arbitration law along with the concepts of impartiality, independence and neutrality. It also examines and critiques the law on arbitration in India to comprehensively combat the vice of bias inhibiting fair adjudication. [Bias of Arbitrator and the need for a Real Danger Test in India with comparison with the English position by Prakhar Singh Chauhan and Siddhant Bhasin, (2018) 8 SCC (J-34)] 

Civil Securities Fraud, Market Manipulation and Insider Trading In India: This article examines the standard of proof in civil actions of securities fraud, market manipulation and insider trading under the SEBI Act. [Standard of Proof: Civil Securities Fraud, Market Manipulation and Insider Trading in India by Armaan Patkar and Diya Uday, (2018) 8 SCC (J-25)] 

Constitution of India — Art. 239-AA(4) proviso — Difference of opinion between Lieutenant Governor and Ministers of representative Government of NCT of Delhi on “any matter” — “Any matter” — Scope of: Lieutenant Governor can exercise such power of reference only in exceptional circumstances and not as a matter of rule or routine. Words “any matter” in Art. 239-AA(4) proviso cannot be inferred to mean “every matter”. Moreover, such difference of opinion should have a sound rationale. Lieutenant Governor should not act in a mechanical manner without due application of mind so as to refer every decision of Council of Ministers of NCT of Delhi, to President Attempt must be made to settle such dispute(s) by way of discussion and dialogue. Lieutenant Governor must work harmoniously with his Ministers and must not seek to resist them at every step of the way. While exercising said power, Lieutenant Governor should keep in mind: (a) the standards of constitutional trust and morality, (b) the principles of collaborative federalism and constitutional balance, (c) the concept of constitutional governance and objectivity, and (d) the nurtured and cultivated idea of respect for a representative Government. [State (NCT of Delhi) v. Union of India, (2018) 8 SCC 501]

Issues under the Insolvency and Bankruptcy Code post admission of insolvency application: While discussing issues relating to the Insolvency and Bankruptcy Code, the author concludes that the Code is on the right track to reaffirm and give substance to the vision of the legislators with the adjudicating authorities reinforcing the focus on securing the rights of the creditors as well as assist all the stakeholders in procuring the best resolution plan post the admission of the proceedings. [Issues under the Insolvency and Bankruptcy Code Post Admission of Insolvency Application, (2018) 8 SCC (J-5)] 

Role Of Domestic Courts In The Development Of International Law: This article, in the light of the Supreme Court of India’s decision in Jeeja Ghosh v. Union of India, (2016) 7 SCC 761  seeks to analyse the role that national courts play in the realm of international law, particularly in advancing the objectives of international law through an approach of hyper-alignment. This entails, an evaluation of the subject-matter of the law involved, and the court’s interpretation thereof. This is followed by an appraisal of the nature of alignment of the court’s decision with international law, if at all such alignment exists, and a subsequent review of the possible implications that surface as a corollary thereof. [Role of Domestic Courts in the Development of International Law (Obligations of Private Entities under International Law in Relation to the Rights of Persons with Disabilities) by Kritika Sharma, (2018) 8 SCC (J-44)]

Cases ReportedSupreme Court Cases

Constitution of India — Art. 145 — Chief Justice as master of roster — Practice and procedure: “Chief Justice” in this context under Supreme Court Rules cannot be read as collegium of first five Judges. While discharging administrative function of the Court, Chief Justice in his individual capacity has prerogative to constitute different Benches and allocate cases to those Benches, in accordance with Supreme Court Rules, 2013 and Handbook on Practice and Procedure and Office Procedure (2017). This function of Chief Justice is different from appointment of Judges of Court under Art. 124 in which context expression “Chief Justice” can be read as collegium of Judges. Discharging function of constitution of Benches and listing of cases by collegium would entail practical difficulties and would be unworkable. [Shanti Bhushan v. Supreme Court of India, (2018) 8 SCC 396]

Constitution of India — Art. 21 — Deaths/Fatal injuries in road accidents/potholes: Directions issued for mandatory cover of thirdparty insurance in case of two-wheelers and cars. [S. Rajaseekaran v. Union of India, (2018) 8 SCC 447]

Constitution of India — Arts. 226 and 136 — CBI investigation — Power of Court in respect of: Freedom of CBI to determine after preliminary enquiry, whether case was such that it warranted CBI investigation having national or international ramifications, or, could be left to State Police, being an ordinary criminal matter, discussed. Directions that Court may issue after such determination by CBI also noted. Union of India v. Sunil Tripathi, (2018) 8 SCC 463]

Criminal Procedure Code, 1973 — S. 438 r/w Ss. 420 and 409 IPC — Anticipatory bail — Interference by Supreme Court: In this case under an agreement entered into between the appellant and Bihar State Food and Civil Supplies Corporation Ltd., the appellant undertook to mill paddy. The agreements inter alia required the appellant/accused to furnish a bank guarantee equivalent to the value of paddy issued to him and in case he was unable to furnish such bank guarantee to pledge unencumbered immovable property for the equivalent sum (in one of the category of cases, there was no requirement of furnishing any bank guarantee and all that the agreement insisted upon was furnishing of security). Corporation alleged that though the appellant(s) was supplied paddy, he failed to return rice and thus misappropriated and cases were registered against the appellant for the offences punishable under Ss. 409 and 420 IPC. By order dt. 28-2-2017, the Court while refusing to cancel the anticipatory bail/bail granted to the miller/accused added the inter-alia, condition that the accused in all the FIR(s), will ensure that bank guarantee, if not furnished, is furnished and if lapsed, is renewed. In this case, rejecting the contention that the bank guarantee was for the defalcated sum, held, that the expression “bank guarantee” used in Condition 1 pertained to bank guarantee which the miller concerned was obliged, in terms of the agreement in question to furnish and the obligation to furnish the bank guarantee and to keep it alive was referable to the terms of the agreement and not to the “defalcated sum”. Further, if according to the terms of the agreement and the benefit enjoyed by the accused concerned, he had already pledged unencumbered immovable property in the equivalent sum, there was no requirement to furnish and to keep alive additional bank guarantee. Further directed that if on account of failure to submit and to keep the bank guarantee alive in respect of the “defalcated sum”, any benefit of bail/anticipatory bail was withdrawn and orders of non-bailable warrants were issued, such orders stood cancelled and recalled. [Arvind Tiwary v. State of Bihar, (2018) 8 SCC 475]

Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 — Ss. 7-A and 14-B — Remand — When warranted: High Court by impugned judgment dismissed appellant’s claim for recovery of dues and damages for delayed payment amounting to Rs 91,585, for non-payment of Provident Fund Contribution, without dealing with issues raised, while using expression “on due consideration”. Said order is not sustainable. [Central Board of Trustees v. Indore Composite (P) Ltd., (2018) 8 SCC 443]

Family and Personal Laws — Maintenance and Financial Provision/Alimony/Palimony — Generally: In this case respondent husband was sent to civil prison for failure to pay entire amount of maintenance as awarded by lower courts. He sought hearing of appeal on merits by appellate court. In view of facts of case, directions issued for speedy disposal of appeal preferred by respondent husband within six weeks. [Shalu Ojha v. Prashant Ojha, (2018) 8 SCC 461]

Medical Law — Eligibility and Right to Practise Medicine Operate/Run Clinics/Nursing Homes/Hospitals, Etc. — Right to run Clinic/Hospital/ Nursing home/Land use: The relief of the poor is one of the essential requirements of the charity and the claim of the hospitals that they were undertaking charity at their own level could not be used as a shield to the performance of charity in an organised way. Further, charity in its widest sense, denoted all the good affections men ought to bear towards each other; in its most restricted and common sense, relief of the poor. Further, members of the medical profession owed a constitutional duty to treat the have-nots and could not refuse to treat a person in dire need of treatment by a particular medicine or by a particular expert merely on the ground that he was not in a position to afford the fee payable. Thus, when the government land had been obtained for charitable purpose of running the hospital, the Government was within its right to impose such an obligation. Being a recipient of government largesse at concessional rates and continuing to enjoy it, the hospitals owed a duty to act in public interest. Further, held, that in case the hospitals wanted to wriggle out and not comply, they had to surrender the land and gorge out the benefit received by virtue of holding the government land. The action of the State could not be said to be unauthorised, illegal or arbitrary in any manner whatsoever and was in furtherance of the very objectives for which the medical profession exists. Hence, Circular/Order dt. 2-2-2012 issued by the Delhi State Governmant and Central Government respectively, regarding free treatment to the weaker sections of the society, upheld. [Union of India v. Moolchand Kharaiti Ram Trust, (2018) 8 SCC 321]

Negotiable Instruments Act, 1881 — Ss. 138 and 139 — Complaint as to dishonour of cheque: Once a cheque has been signed and issued in favour of holder of cheque, there is statutory presumption under S. 139 of NI Act that the cheque is issued in discharge of a legally enforceable debt or liability. However, said presumption is a rebuttable one. Issuer of cheque can rebut that presumption by adducing credible evidence that the cheque was issued for some other purpose like security for loan. [T.P. Murugan v. Bojan, (2018) 8 SCC 469]

Protection of Women from Domestic Violence Act, 2005 — Ss. 12 to 20 — Monetary relief: The proceedings for monetary relief, under 2005 Act are summary in nature. In case of reduction of maintenance amount by appellate court, claim was filed for enhancement of maintenance before Supreme Court while main appeal was still pending before High Court. Parties submitted copious materials to substantiate their claims. Considering peculiarity of case, aggrieved person was relegated to file suit for maintenance under Hindu Adoptions and Maintenance Act or petition under S. 125 CrPC as process involved proof of such documents after cross-examination of parties. [Shalu Ojha v. Prashant Ojha, (2018) 8 SCC 452]

Law School NewsLive Blogging

School of Law, KIIT (Deemed to be University) proudly presents the 6th edition of the National Moot Court Competition, 2018 which will commence in a short while. In the six years from its inception, the KLS Moot Court has come a long way to become one of the most prestigious Moot Court Competitions in the country dealing with various fields of law including Corporate Law, Competition Law, Commercial Arbitration etc.

In this edition, the Moot problem revolves around a dispute relating to an Arbitration clause in an agreement.

This is a 3-day long event, which will end on 30th of September with the Winning team being awarded the coveted Trophy and the cash prize of Rs. 1,00,000/-.

28th September 2018 (Day 1)

6th KLS Moot Court

11:00 Registration of teams and inauguration ceremony have been completed. The inaugural speech was delivered by Prof. (Dr.) N. L. Mitra, Former Chancellor KIIT (Deemed to be University), Former Vice Chancellor, NLSIU, Banglore and NLU, Jodhpur.

Next up, the draw of lots and exchange of memorials.

12:00 Draw of lots has begun which will decide the fixtures for the preliminary rounds.

12:40 Exchange of memorials has concluded. Teams, now, are preparing for their preliminary rounds.

The first preliminary round will begin today at 15:30.

15:00 The esteemed Judges have arrived and are being briefed about the rules of the Competition which will begin in a short while.

First Preliminary round

15:30 Round A of the first prelims has begun. Teams on the appellant side have started their oral arguments.

17:30 Round B of the first prelims has begun with more enthusiasm and excitement for the teams.

Day 1 wrapped up with the participants being tested and grilled upon various facets of the issue, the legal standpoint and the facts of the problem. Some of the judges appreciated the teams for making some sublime oral submissions and answering the issues in accordance with how the law stands at this juncture and where it needs amendments to cover up the loopholes. Signing off for today. Prelims Round 2 and Quarter-Final Rounds shall be taking place tomorrow.

29th September 2018 (Day 2)

The judges have arrived. Teams are present in the courtroom with their memorial and compendium eager to present their arguments for another day and put in their best of efforts to break through the quarterfinal which is scheduled to start in the evening.

09:15 Round A of the second prelims has begun.

10:50 Prelims II Round B has started in some of the courtrooms.

11:15 Round B is underway in all the courtrooms.

12:15 Some intense discussions and grilling regard the statement of jurisdiction is going on in Courtroom No. 7. Statement of jurisdiction is one of the important facets of this moot proposition where the question being disputed involves around the right of the civil court’s jurisdiction and why parties are willing to refer the same to arbitration.

14:30  The Prelims are over and the participants are eagerly waiting for the results which will be announced post lunch at 1530hrs. Soon after drawing of lots and memorial exchange, the quarterfinals will take place.

16:00 Quarter Final rounds has begun!

18:50 Quarter Finals gets over in all the four courtrooms. Participants head towards the Seminar Hall, eagerly waiting for the results.

19:30 Results released! The semi qualifiers are elated with the results! One more day, two more rounds to go!

End of Day 2!! Along with the participants, the organizers are also bit exhausted; yet with the remaining energy, another day to go!!!

30th September 2018 (Day 3)

09:30 And we finally arrive to the last day of the event! The participants are waiting in the court hall. The judges are yet to arrive!

10:30 Semi-Final round has commenced. The teams after enduring much questing and grilling have reached this leg of the event to endure some more of that.

12:15 Semi-Finals gets over, with the participants eagerly waiting for the results for the final.

13:00 The two teams qualifying for the finals heads towards the library for the final preparation for which they have an hour or so.

15:00 The judges for the final round have arrived. The panel herein as follows:

1. Hon’ble Justice Sanjib Banerji, Calcutta High Court

2. Surya Prasad Misra, Advocate General, Odisha High Court

3. Somasekhar Sundaresan, Counsel, Hon’ble Supreme Court of India & Hon’ble Bombay High Court

4. Siddharth Dutta, Partner, Shardul Amarchand Mangaldas & Co., Kolkata

5. Prof. (Dr.) Indrajit Dubey, Professor RGSOIPL, IIT Kharagpur.

15:30 The teams have arrived. And here we begin with the final round!!

15:40 The final round has finally begun. The oral submissions have started.

16:00 The participants are putting forth their knowledge persuasively in the oral submissions. The Hon’ble Judges, though, don’t seem to be in any hurry to accept the team’s contentions so easily.

16:30 Appellant side concludes their submissions.

16:48 Speaker 1 from the Respondent side is being questioned by Justice Banerji on the issue of maintainability.

16:56 Questions on the legal facets are being put forth to the teams.

17:20 Speaker 2 for the Respondent has started to sum up their arguments. This is the beginning of the end to this year’s KLS Moot Court Competition.

17:30 The teams are now summing up with their rebuttals, after which the oral rounds would come to an official end.

17:40 The rebuttals have now ended. Both the teams now will be waiting for the results with their nails between their teeth.

17:45 The final round of the 6th KLS Moot Court Competition has ended. The Hon’ble Judges have been taken off the dais after being duly felicitated by the Director, School of Law, KIIT (Deemed to be) University.

18:10 After a couple of ceremonial speeches from the Director, School of Law, KIIT (Deemed to be) University and the Registrar, KIIT (Deemed to be) University, the results will be declared.

18:45 Results announced! The trophy for the best team, i.e., the winner of the 6th edition of the KLS Moot Court Competition goes to the team that maintained their calm even under the constant and fiery questioning of the Hon’ble Judges, the team that portrayed the best demeanor even when most stressed, i.e., School of Law, Shashtra (Deemed to be) University, Tamil Nadu. It must be said that the team deserved to win.

The 1st Runner-up trophy goes to Rizvi College of Law, Mumbai, who were also not very far behind in talent or knowledge and showcased all the virtues of a winning team. But there could have been only one winner and today that team was School of Law, Shashtra (Deemed to be) University.

In the end, everyone that helped in making this event as grand as it came out to be, deserve to be congratulated. Special Thanks to SCC Online and EBC for helping out with the logistics, awards, and everything which made this event grand. It also goes without saying that all the teams that participated were exemplary in one sense or the other. All the Hon’ble judges that graced this event with their presence cannot be thanked enough in mere words.

Signing off!

Cases ReportedSupreme Court Cases

Arbitration and Conciliation Act, 1996 — Ss. 7 and 11(6) — Agreement to settle disputes by arbitration — Inference of — When warranted: Cl. 12 of the MoU between the parties provided that any decision to be taken by the specified mediators/arbitrators during the period of entire transaction in the event of any breaches committed by either of the parties shall be final and binding on all the parties. On analysing the various clauses of the MoU, held, that the specified persons though styled as mediators/arbitrators, were escrow agents who had been appointed to keep certain vital documents in escrow, and to ensure a successful completion of the transaction contained in the MoU. Further, the very fact that they were referred to as “mediators/arbitrators” and as “mediators and arbitrators” showed that the language used was loose. Also, the expression “decision” used in Cl. 12 was only a pro tem decision. Namely, that the two escrow agents were to make decisions only during the period of the transaction and not thereafter. Thus, when viewed as a whole, the two escrow agents were not persons who had to decide disputes after hearing the parties and observing the principles of natural justice, in order to arrive at their decision. In the present case, held, the wording of the agreement, was inconsistent with the view that the agreement intended that disputes be decided by arbitration. [Shyam Sunder Agarwal v. P. Narotham Rao, (2018) 8 SCC 230]

Constitution of India — Art. 137 — Review under — Ambit and scope of power to review in criminal proceedings — Review when maintainable — Principles reiterated: Application to review a judgment is not to be lightly entertained and Supreme Court could exercise its review jurisdiction only when grounds are made out as provided in Or. XLVII R. 1, Supreme Court Rules, 2013. Review is not rehearing of original matter. Power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court.  A repetition of old and overruled argument is not enough to reopen concluded adjudications. Normally in a criminal proceeding, review applications cannot be entertained except on ground of error apparent on face of record. Further, power given to Supreme Court under Art. 137, is wider, and in an appropriate case, can be exercised to mitigate a manifest injustice. By review application, applicant cannot be allowed to re-argue appeal on grounds which were urged at the time of hearing of appeal. Even if applicant succeeds in establishing that there may be another view possible on conviction or sentence of accused, that is not a sufficient ground for review. Supreme Court shall exercise its jurisdiction to review only when a glaring omission or patent mistake has crept in earlier decision, due to judicial fallibility. [Vinay Sharma v. State (NCT of Delhi), (2018) 8 SCC 186]

Evidence Act, 1872 — Ss. 30 and 3 — Scope — Confession of co-accused — Admissibility against other accused: As a result of provisions contained in S. 30, confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by court is evidence; circumstances which are considered by court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of provisions of S. 30, fact remains that it is not evidence as defined by S. 3. Result, therefore is, that in dealing with a case against an accused person, court cannot start with confession of a co-accused person; it must begin with other evidence adduced by prosecution and after it has formed its opinion with regard to quality and effect of said evidence, then it is permissible to turn to confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. Law so laid down has always been followed except in cases where there is a specific provision in law making such confession of a co-accused admissible against another accused. [Surinder Kumar Khanna v. Directorate of Revenue Intelligence, (2018) 8 SCC 271]

Government Contracts and Tenders — Award/Non-award of contract — Conduct of auction/Evaluation/Acceptance/Rejection of Bid/Tender/Scope of judicial review: Right of First Refusal(ROFR)/right to match the lowest bid, granted to claimant/contractor by Arbitral Tribunal qua tender for completion of the balance unfinished works originally awarded to the claimant, is inconsequential, when such original awardee/contractor does not participate in the subsequent tender. Tender documents for balance work making it obligatory for the respondent/contractor to participate in the tender process. Tacit or implied exemption from participating in tender process is not permissible in matters of tender process. [NHAI v. Gwalior-Jhansi Expressway Ltd., (2018) 8 SCC 243]

Infrastructure Laws — Water and Water Resources — Canals, Dams and Irrigation — Multipurpose hydroelectricity projects — Tariff determination under the provision of the 1948 Act: The latter part of the fourth proviso to S. 14 of Electricity Act i.e. “… and the provisions of the Damodar Valley Corporation Act, 1948 insofar as they are not inconsistent with the provisions of this Act, shall continue to apply to that Corporation…”, is a substantive provision to lay down something more than what a proviso generally deals with and is to bring in the continued application of some of the provisions of the 1948 Act which are not inconsistent with the provisions of the 2003 Act. Also, a comparative reading of the third and the fourth provisos to S. 14 of Electricity Act indicates the intention of the legislature that the second part of the fourth proviso is to bring in the continued application of some of the provisions of the 1948 Act which were not inconsistent with the provisions of the 2003 Act. [Bhaskar Shrachi Alloys Ltd. v. Damodar Valley Corpn., (2018) 8 SCC 281]

Insurance — Fees payable to Investigators/Advocates: Direction to the insurance companies to adhere to fees schedule issued by GIPSA dt. 21-2-2005 qua advocates/investigators by High Court is not warranted, particularly when they were already adhering to the fee structure enforced from 2009 and 2014. [United India Insurance Company Limited, In Re, (2018) 8 SCC 177]

Labour Law — Wages — Overtime Wages — Claim to — Sustainability: Respondents (total 17), employees of appellant’s printing press claimed overtime wages for work allegedly done for period 1986 to 1990. Claim was allowed on following grounds: (i) Respondents no longer in service and either retired or died; (ii) Amount involved not very sizeable; (iii) Relates to period from 1986-1990; (iv) Amount, pursuant to impugned order paid long back; and (v) It relates to overtime work admittedly done by respondents. [Currency Note Press v. N.N. Sardesai, (2018) 8 SCC175]

Labour Law — Wages: Directions issued to pay unpaid wages of workers who had worked for about 20 yrs in tea estates which were later abandoned by tea companies in States of Assam, W.B., T.N. and Kerala. [IUF Workers’ Assn. v. Union of India, (2018) 8 SCC 201]

Land Acquisition Act, 1894 — Ss. 18(2)(b), 18(1), 12(2) and 11 — Limitation for filing reference application under S. 18(2)(b): Since notice dt. 4-12-1987 was not accompanied by award, it was not a valid notice as envisaged under S. 12(2). It was only after appellant received certified copy of award on 3-2-1988, there was valid notice. Thus, reference for enhancement was not barred by limitation. Matter remanded to High Court for consideration on merits. [Vijay Mahadeorao Kubade v. State of Maharashtra, (2018) 8 SCC 266]

Land Acquisition Act, 1894 — Ss. 48 and 16: Release of land from acquisition proceedings is not permissible after possession of land has been taken by State. State is at liberty to withdraw from acquisition of any land “of which possession has not been taken” except in cases falling under S. 36 since acquired land vests in State absolutely free from all encumbrances. In instant case, since possession of land in question was taken by State in accordance with law on 30-5-2004, provisions of S. 48 were inapplicable, disentitling State to release land from acquisition proceedings by taking recourse to S. 48. The then Revenue Minister had no power to deal with land in question in any manner whatsoever after possession was taken. [Pimpri Chinchwad New Township Development Authority v. Vishnudev Cooperative Housing Society, (2018) 8 SCC 215]

Negotiable Instruments Act, 1881 — S. 139 — Presumption under — When may fail — Ingredients and scope of S. 139 — Principles summarized: Accused may adduce evidence to rebut presumption under S. 139, but mere denial regarding existence of debt shall not serve any purpose. In the event accused is able to raise a probable defence which creates doubt with regard to existence of a debt or liability, the presumption may fail. [Kishan Rao v. Shankargouda, (2018) 8 SCC 165]

Penal Code, 1860 — S. 302 or S. 304 Pt. II — Appellant-accused caused death of deceased by a single sword-blow in the rib-cage area of deceased — Offence committed — Determination of: Irked by loud noise of tape recorder being played by deceased in his house, appellant had verbal altercation with deceased, which culminated in the incident. High Court, upon reappreciation of evidence, correctly held, that evidence of PW 4 (injured witness) stands corroborated by PWs 1 to 3 (eyewitnesses), hence, reversed acquittal of appellant, convicting him under S. 302. However, held, occurrence took place in the heat of moment. Assault was made without premeditation on the spur of time. Entire episode lasted for 1½ to 2 minutes. There was no intention to kill and no second assault was made by appellant to ensure death of deceased, but, in the nature of weapon used and position of assault, knowledge that death was likely to ensue, is attributable to appellant. Therefore, conviction of appellant altered from S. 302 to S. 304 Pt. II and sentence altered from life imprisonment to period of custody already undergone. [Deepak v. State of U.P., (2018) 8 SCC 228]

Service Law — Regularisation — Entitlement to regularisation — Daily wagers/Contractual Employees — Benefit of 2015 Regularisation Rules to employees who had not completed 10 yrs of service on cut-off date of 10-4-2006 on ground that the same was not permitted by Umadevi (3), (2006) 4 SCC 1: Supreme Court in Umadevi (3) case(2006) 4 SCC 1 granted, as one time measure, benefit of regularisation of services to irregularly appointed employees who had put in more than 10 yrs of service on cut-off date of 10-4-2006. High Court by impugned judgment denied benefit of regularisation to appellants in terms of Regularisation Rules of 2015 holding that Umadevi (3) case did not permit regularisation of services of appellants since they had not put in 10 yrs of service on cut-off date of 10-4-2006 when Constitution Bench rendered its decision. The Supreme Court held, intention of Umadevi (3) case was to prevent irregular/illegal appointments and to confer benefit on those who were irregularly appointed in past. Fact that State of Jharkhand continued with irregular appointments for almost a decade after decision in Umadevi (3) case was rendered strongly deprecated, which was nothing but exploitation of employees concerned and which Umadevi (3) case and M.L. Kesari, (2010) 9 SCC 247 precisely sought to avoid. If a strict and literal interpretation, forgetting spirit of decision in Umadevi (3) case is taken into consideration, then no irregularly appointed employee can ever be regularised in State of Jharkhand since it came into existence on 15-11-2000, and the cut-off date was 10-4-2006. High Court as well as the State ought to have considered entire issue in contextual perspective from point of view of interest of State, financial or otherwise, and also the employees. Regularisation Rules of 2015 should be given pragmatic interpretation and in case appellants have completed 10 yrs of service on date of promulgation of Rules, their services should be regularized. State of Jharkhand directed, henceforth, to consider making regular appointments only. [Narendra Kumar Tiwari v. State of Jharkhand, (2018) 8 SCC 238]

T.N. Buildings (Lease and Rent Control) Act, 1960 (18 of 1960) — Ss. 10(2)(ii)(a) and 10(3)(c): Eviction by court on the basis of compromise arrived at between landlord and tenant, not permissible when statutory grounds for seeking eviction are not made out. Where protection under a Rent Act is available, no eviction can be ordered unless ground seeking eviction is made out, even if parties had entered into a compromise. [Alagu Pharmacy v. N. Magudeswari, (2018) 8 SCC 311]

Cases ReportedSupreme Court Cases

Arbitration and Conciliation Act, 1996 — Ss. 85, 7 and 8: Even if an arbitration agreement entered into after the 1996 Act had come into force were to make a reference to the applicable provisions of those under Indian Arbitration Act or the 1940 Act, such stipulation would be of no consequence and the matter must be governed under provisions of the 1996 Act. Further, an incorrect reference or recital regarding applicability of the 1940 Act would not render the entire arbitration agreement invalid and such stipulation will have to be read in the light of S. 85 of the 1996 Act and principles governing such relationship have to be under and in tune with the 1996 Act. [Purushottam v. Anil, (2018) 8 SCC 95]

Armed Forces — Promotion — Empanelment for Promotion — Entitlement to: In this case chances of being considered for promotion/empanelment for promotion were lost by respondent due to wrongful punishment imposed by GCM. Central Government by Order dt. 20-11-2013 annulled proceedings of GCM and setting aside punishment imposed with all “consequential benefits”. While determining the connotation of “consequential benefits”, it was held that matter which was directly in issue was correctness and validity of GCM proceedings. While annulling findings and effect of proceedings idea was to confer those benefits which were directly denied to officer. Said expression cannot be construed to mean that even promotions which were strictly on basis of comparative merit and selection must also stand conferred upon officer. Further held, though it is true that as result of pendency of GCM proceedings respondent was kept out of service for nearly nine years and as such his profile would show inadequacy to some extent but even Department was denied opportunity of properly assessing his profile. Impugned judgment directing appellants to take decision in view of opinion expressed by Law Officer for promotion of respondent to rank of Brigadier was held to be unsustainable. Besides, opinion of Law Officer was not consistent with provisions of relevant rules and law declared by Supreme Court in K.D. Gupta, 1989 Supp (1) SCC 416. The contention that respondent must be granted those promotions which his batchmates or juniors received and that he must also be considered for selection-based promotions unacceptable. Furthermore, though prejudice was caused to respondent by wrongly proceeding against him in GCM consequent to which he lost 9 yrs of service is apparent but sympathy cannot outweigh considerations on merit since respondent was found unfit for selection as “Colonel” by Selection Board (though he was granted time-scale promotion to rank of Colonel after putting in required service). [Union of India v. Ran Singh Dudee, (2018) 8 SCC 53]

Constitution of India — Art. 14 — Compensation for infringement of Art. 14 — When warranted: State is vicariously liable for public wrongs committed by its officials. Hence, payment of compensation to sufferers o public wrong, awarded. [United Air Travel Services v. Union of India, (2018) 8 SCC 141]

Constitution of India — Arts. 137 and 145 — Review under Art. 137: Power of review by Supreme Court as envisaged under Art. 137, is no doubt wider than review jurisdiction conferred by other statutes on Court. Art. 137 empowers Supreme Court to review any judgment pronounced or made, subject to provisions of any law made by Parliament or any rule made under Art. 145. However, application to review a judgment is not to be lightly entertained and Supreme Court could exercise its review jurisdiction only when grounds are made out as provided in Or. 47 R. 1, Supreme Court Rules, 2013. Review in a criminal proceeding is permissible only on ground of error apparent on face of record. Review is not rehearing of appeal all over again and is not appeal in disguise. In a review petition, it is not open to Court to reappreciate evidence and reach a different conclusion, even if that is possible. Conclusion arrived at on appreciation of evidence cannot be assailed in review petition unless it is shown that there is an error apparent on face of record or for some reason akin thereto. Review is not rehearing of original matter. Power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. A repetition of old and overruled argument is not enough to reopen concluded adjudications. Power of review can be exercised with extreme care, caution and circumspection and only in exceptional cases. [Mukesh v. State (NCT of Delhi), (2018) 8 SCC 149]

Criminal Procedure Code, 1973 — S. 401 — Revision against conviction: Condition imposed while admitting is not warranted in facts of case, hence, vacated. [M.V. Amreeth v. K. Venkata Krishna, (2018) 8 SCC 118]

Criminal Procedure Code, 1973 — Ss. 386 and 374 — Appeal against conviction: Passing of impugned order without considering defence evidence due to absence of appellant-defendant or his counsel on various dates posted for final disposal, not proper. [K.S. Kalinga Rayan v. State, (2018) 8 SCC 125]

Election — Panchayat Samiti — Disqualification — “Office of profit”— What is: Candidate holding post of Assistant Government Advocate is not in service of State Government within meaning of S. 139(1)(c) of Bihar Panchayat Raj Act, 1993, hence not disqualified from contesting Panchayat election. [State Election Commr. v. Janakdhari Prasad, (2018) 8 SCC 1]

Identification of Prisoners Act, 1920 — Ss. 3 to 5, 2(a) and 8 and Statement of Objects and Reasons: Magistrate’s permission is not mandatory for obtaining a specimen of fingerprints of the accused under S. 5 of Identification of Prisoners Act, 1920. [Sonvir v. State (NCT of Delhi), (2018) 8 SCC 24]

Income Tax Act, 1961 — Ss. 153-A, 158-BB and 158-BH r/w Ss. 132 and 132-A — Block assessment: In order to add any income in the block assessment, evidence of such income must be found in the course of the search under S. 132 or in any proceedings simultaneously conducted in the premises of the assessee, relatives and/or persons who are connected with the assessee and are having transaction/ dealings with such assessee. Further, any material or evidence found/collected in a survey which has been simultaneously made at the premises of a connected person can be utilised while making the block assessment in respect of an assessee under S. 158-BB r/w S. 158-BH and the same would fall under the words “and such other materials or information as are available with the assessing officer and relatable to such evidence” occurring in S. 158-BB. [CIT v. S. Ajit Kumar, (2018) 8 SCC 107]

Penal Code, 1860 — Ss. 302/149 — Murder trial — Unlawful assembly: In this case deceased was shot to death at night and involvement of appellant-accused along with four others was established. Conviction of appellant under Ss. 302/149 was upheld by High Court. The Supreme Court observed that any member of unlawful assembly can be convicted for criminal act with the aid of S. 149. It need not to be proved that he had committed an overt act. Hence, courts below were justified in concluding that appellant is liable to be convicted under S. 149 IPC, inasmuch as he is one of the members of unlawful assembly who had come to the scene of occurrence with common object of committing murder of deceased. Therefore, conviction of appellant under Ss. 302/149 was confirmed. [Prabhu Dayal v. State of Rajasthan, (2018) 8 SCC 127]

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 — Ss. 13 and 34 — Civil suit in respect of a matter which DRT or DRAT is empowered to determine — Non-maintainability of: Mandate of S. 13 and, in particular, S. 34, bars filing of a civil suit and no civil court can exercise jurisdiction to entertain any suit or proceeding in respect of any matter which DRT or DRAT is empowered by or under the 2002 Act to determine. Further, no injunction can be granted by any court or authority in respect of any action taken or to be taken in pursuance of any power conferred by or under the 2002 Act. [SBI v. Allwyn Alloys (P) Ltd., (2018) 8 SCC 120]

Service Law — Recruitment Process — Examination — Posts of School Lecturers for various subjects under Secondary Education Department — Examination: Assumption that key answers published is correct unless proved clearly wrong. Publication of key answers is good to achieve transparency. Furthermore, objections to key answers are to be examined by experts and thereafter corrective measures, if required, to be taken by examining body. [Richal v. Rajasthan Public Service Commission, (2018) 8 SCC 81]

Transfer of Property Act, 1882 — Ss. 8, 7 and 54 — Nemo dat quod non habet: Person is competent to transfer any property only if he has subsisting right, title or interest in it. If on date of transfer, right, title or interest of transferor stood extinguished (in this case under S. 27 of Limitation Act, 1963 by operation of law of adverse possession) transfer would be illegal and void. Right once extinguished by operation of law cannot be revived unless law itself provides therefore. [Eureka Builders v. Gulabchand, (2018) 8 SCC 67]

Wildlife (Protection) Act, 1972 — S. 39(1)(c) [as inserted by Act 44 of 1991 w.e.f. 2-10-1991]: Illegally obtained/procured elephant tusk is property of Government. Once it is treated to be property of Government, presumption under S. 69 of Kerala Forest Act, 1961 attracted. [Wildlife Warden v. Komarrikkal Elias, (2018) 8 SCC 114]

Cases ReportedSupreme Court Cases

Arbitration Act, 1940 — Ss. 29 and 13 — Pendente lite interest: An arbitrator has the power to award interest unless specifically barred from awarding it; and the bar must be clear and specific. [Raveechee & Co. v. Union of India, (2018) 7 SCC 664]

Arbitration and Conciliation Act, 1996 — S. 34 r/w S. 5 — Award — Interference with, when the same causes injustice to either of the parties, contrary to terms of contract — When permissible: The parties are free to decide their own terms and conditions in case of a contract. Once respondent voluntarily agreed that no escalation would be reimbursed even in case of regulation before accepting the contract, respondent could not claim reimbursement of excess of minimum wages on account of hike due to the notification of Government. Further, any departure from the terms and conditions of the contract, unless such condition is arbitrary, would destroy the basic purpose of the contract. [Union of India v. Varindera Constructions Ltd., (2018) 7 SCC 794]

Companies Act, 2013 — S. 59 — RTI Circular No. 1 dt. 9-5-2001: Rectification of register, as opposed to filing of a civil suit to prove title over shares, permissible when fraud is perpetuated on the shareholder in possession of original share certificates by issuance of duplicate shares, without following proper procedure, in favour of impersonator. [Adesh Kaur v. Eicher Motors Ltd., (2018) 7 SCC 709]

Constitution of India — Arts. 26, 32, 35, 38, 49 and 51-A(f) & (g) — Jagannath Temple, Puri — Mismanagement and difficulties by visitors — Directions: Interim directions issued for management and upkeep of Shri Jagannath Temple at Puri. [Mrinalini Padhi v. Union of India, (2018) 7 SCC 785]

Criminal Procedure Code, 1973 — S. 438 — Anticipatory bail — Whether should be for a limited period of time: Due to conflicting opinions of different Benches of Supreme Court, matter referred to larger Bench of Supreme Court for authoritative decision. [Sushila Aggarwal v. State (NCT of Delhi), (2018) 7 SCC 731]

Criminal Procedure Code, 1973 — Ss. 211 to 213 — Framing of charge — Proper framing of charge — Cardinality and necessity of — Explained: Accused persons are entitled to know with precision what charge they are required to defend. [Vinubhai Ranchhodbhai Patel v. Rajivbhai Dudabhai Patel, (2018) 7 SCC 743]

Criminal Procedure Code, 1973 — Ss. 482 and 245: Rejection of application under S. 482 CrPC for quashment, when discharge application already stood rejected, proper. [Nayan Prasad v. State of Bihar, (2018) 7 SCC 713]

Employees’ Compensation Act, 1923 — Ss. 3 and 4 — Accident arising out of and in course of employment: As deceased driver was treated as employee and his death treated on duty and there was consistency in statement of dependants and there were no contradictions, compensation awarded to claimants. [Tebha Bai v. Raj Kumar Keshwani, (2018) 7 SCC 705]

Family and Personal Laws — Hindu Law — Joint Hindu Family/Hindu Undivided Family (HUF)/Coparcenary/Co-owner/Survivorship: Property inherited by a male Hindu from his father, father’s father or father’s father’s father is an ancestral property. Essential feature of ancestral property, according to Mitakshara Law, is that the sons, grandsons, and great grandsons of the person who inherits it, acquire an interest and rights attached to such property at the moment of their birth. Share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. After partition, property in hands of a son continues to be ancestral property and son of that son (whether natural or adopted) takes interest in it and is entitled to it by survivorship. [Shyam Narayan Prasad v. Krishna Prasad, (2018) 7 SCC 646]

Government Contracts and Tenders — Conduct of auction/Evaluation/Acceptance/ Rejection of Bid/Tender/Scope of judicial review: Directions to Evaluation Committee qua valuation and bids and conditions required to be met by bidders for revival of Super Bazar at New Delhi, issued. [Super Bazar Karamchari Dalit Sangh v. Union of India, (2018) 7 SCC 617]

Importance of maintaining sanctity of DNA samples: This article is primarily intended to emphasise upon the importance of maintaining sanctity of forensic samples by timely conducting forensic medical examination (FME) of individuals or relevant spots to maintain sanctity and reliability of samples. [Management of DNA Sampling in Rape Incidents by G.K. Goswami and Siddhartha Goswami, (2018) 7 SCC (J-4)]

Income Tax Act, 1961 — S. 11 [as existing prior to amendment made in S. 11(6) of the Act vide Finance Act 2 of 2014]: Regarding grant of depreciation claimed by charitable institutions on capital assets, even when the expenditure on acquisition of the assets had been treated earlier as application of income for charitable purposes, approving the ruling in Institute of Banking, Personnel Selection, 2003 SCC OnLine Bom 642, wherein the Court rejecting the view that S. 32 was the only section granting benefit of deduction on account of depreciation, had inter alia held that the income of the Trust is required to be computed under S. 11 on commercial principles after providing for allowance for normal depreciation and deduction thereof from gross income of the Trust, in the present case, orders of the High Courts granting benefit of depreciation on the assets acquired by the respondents assessees/charitable institutions upheld. Further held, the amendment made in S. 11(6) of the Act vide Finance Act 2 of 2014 effective from Assessment Year 2015-16, was prospective in nature. Also, held, that once the assessee is allowed depreciation, he shall be entitled to carry forward the depreciation as well. [CIT v. Rajasthani and Gujarati Charitable Foundation, (2018) 7 SCC 810]

Income Tax Act, 1961 — S. 194-H (w.e.f. 1-6-2001) r/w S. 201 — Tax at source — Deduction of, on payments made by appellants (Prasar Bharati Doordarshan Kendra) to advertising agencies: Payments made by appellants (Prasar Bharati Doordarshan Kendra) to advertising agencies is to be construed as commission to agents not as payments between principal-to- principal. [Prasar Bharati v. CIT, (2018) 7 SCC 800]

Land Acquisition Act, 1894 — S. 11-A — Object of — Re-emphasised: Exclusion of time spent in stay has to be considered based on facts of each case. [Raj Kumar Gandhi v. Chandigarh Administration, (2018) 7 SCC 763]

Language of the Law: In this article the author emphasis the need to simplify the language of the law in India. [Whereof They’re Ipso Facto Words: India Needs to Simplify the “Language of the Law” by Jyoti Sagar, (2018) 7 SCC (J-1)]

Limitation Act, 1963 — S. 5 — Sufficient cause for condonation of delay in filing appeal — What is: Aggrieved persons not made a party before court against whose order they had appealed, is sufficient cause for condonation of delay in filing appeal. [Hetal Chirag Patel v. State of Gujarat, (2018) 7 SCC 703]

Motor Vehicles Act, 1988 — S. 166 — Fatal accident — Compensation of — Income of deceased: There is nothing in law which requires Tribunal to assess income of deceased only on basis of a salary certificate for arriving at a just and fair compensation to be paid to claimants for loss of life. [United India Insurance Co. Ltd. v. Indiro Devi, (2018) 7 SCC 715]

Motor Vehicles Act, 1988 — Ss. 166 and 165, 2(28), 2(44) and Statement of Objects and Reasons — Compensation claims under the Act — Maintainability: “Use of motor vehicle”, includes non-traffic use. However, causal relationship should exist between the violation and the accident caused. There has to be some act done by the person concerned in causing the accident. The commission or omission must have some nexus with the accident, though the “use” of the motor vehicle concerned need not have an intimate and direct nexus with the accident. [Kalim Khan v. Fimidabee, (2018) 7 SCC 687]

Penal Code, 1860 — S. 302 or S. 304 Pt. II [S. 300 Exception 4]: As ingredients of S. 300 Exception 4 were present, conviction converted from S. 302 to S. 304 Pt. II. [Tularam v. State Of M.P., (2018) 7 SCC 777]

Penal Code, 1860 — S. 306 — Abetment of suicide — Ingredients for invoking of S. 306 — Not made out: As allegations in FIR, relating to mental torture of deceased at the hands of his higher officers, in this case, were completely inadequate not satisfying requirements under S. 306, proceedings initiated against accused quashed. [Vaijnath Kondiba Khandke v. State of Maharashtra, (2018) 7 SCC 781]

Penal Code, 1860 — Ss. 302, 498-A and 506: In this case appellant-accused was convicted for murder of his wife. It was held by the Supreme Court that the due to some extenuating circumstances like, after killing his wife, appellant tried to kill himself, etc., portion of impugned order, prescribing life sentence for minimum period of 30 yrs, deleted, making it a case of life imprisonment simpliciter. [Nitin Balkisan Gaikwad v. State of Maharashtra, (2018) 7 SCC 685]

Penal Code, 1860 — Ss. 302/149 — Murder trial: In this case due to rivalry between two factions in village led to attack using country-made bombs, hunting sickles and iron pipes and there was death of four persons but all respondent-accused were acquitted by High Court. It was held by the Supreme Court that the High Court erred in eschewing testimonies of witnesses in toto. Minor contradictions and omissions in evidence of witnesses were to be ignored. All eyewitnesses including one who turned hostile consistently spoke about attack on one deceased and his supporters. Witness who gave vivid description of incident was corroborated by other witnesses. However, on oral evidence of witnesses and medical evidence, High Court rightly acquitted some respondents giving them benefit of doubt but acquittal of other respondents by High Court, set aside, convicting them under S. 302 IPC and sentencing them to undergo life imprisonment. [State of A.P. v. Pullagummi Kasi Reddy Krishna Reddy, (2018) 7 SCC 623]

Penal Code, 1860 — Ss. 84, 302 and 324 — Murder trial — Applicability of S. 84: Reasonable doubt regarding mental condition of accused at the time of incident was created in the mind of court from materials and evidence available. As prosecution failed to lead any evidence in rebuttal and was not able to establish its case beyond reasonable doubt, conviction of accused under Ss. 302 and 324 IPC, reversed. [Devidas Loka Rathod v. State of Maharashtra, (2018) 7 SCC 718]

Registration Act, 1908 — Ss. 17(1-A) and 49 proviso — Requirement of registration: If document containing contract to transfer right, title or interest in immovable property for consideration is not registered but exhibited, it will bear an endorsement that it is admissible only as evidence of agreement to sell in suit for specific performance under Specific Relief Act and shall not have any effect for purposes of S. 53-A of TP Act. Genuineness, validity and binding nature of document or whether it is hit by any provisions of TP Act or Stamp Act, will have to be adjudicated at appropriate stage after parties adduce oral and documentary evidence. [Ameer Minhaj v. Dierdre Elizabeth (Wright) Issar, (2018) 7 SCC 639]

Service Law — Allowances — Special (duty) allowance — Entitlement to — Special duty allowance to CRPF personnel posted in North-Eastern region — Date of reckoning: Respondents are entitled to special (duty) allowance for period during which they were posted in North-Eastern region not w.e.f. 3-8-2005 when office memorandum was issued by Government to that effect. [CRPF v. Janardan Singh, (2018) 7 SCC 656]

Service Law — Departmental Enquiry — Natural justice — Noncompliance — Inference — When warranted: There is no requirement of appointment of Presenting Officer in each and every case, whether statutory rules enable authorities to make appointment or are silent. When statutory rules are silent with regard to applicability of any facet of principles of natural justice, applicability of principles of natural justice which are not specifically excluded in statutory scheme are not prohibited and can be made applicable in given case to advance cause of justice. Furthermore, Enquiry Officer has to be independent and not representative of disciplinary authority. If he starts acting in any other capacity and proceeds to act in manner as if he is interested in eliciting evidence to punish employee, principle of bias comes into play. [Union of India v. Ram Lakhan Sharma,, (2018) 7 SCC 670]

Cases ReportedSupreme Court Cases

SEBI (Prohibition of Insider Trading) Regulations, 1992 — Regns. 2(c), 2(e)(i), 2(e)(ii), 2(h), 2(ha) and 3 — Insider trading: Regn. 2(e)(i) is in two parts; first part has reference to any person who is connected with company or is deemed to be connected with company and the second part being that such person must reasonably be expected to have access to unpublished price sensitive information by virtue of such connection in respect of securities of a company. Giving the word “and” its ordinary meaning and in a conjunctive sense, second limb of Regn. 2(e)(i) is also to be satisfied. Further, under second part of Regn. 2(e)(i), connected person must be “reasonably expected” to have access to unpublished price sensitive information and expression “reasonably expected” cannot be a mere ipse dixit. There must be material to show that such person can reasonably be so expected to have access to unpublished price sensitive information. [Chintalapati Srinivasa Raju v. SEBI, (2018) 7 SCC 443]

Insurance — Payment of claim — Currency exchange rate — Relevant date for conversion of currency in an action to recover an amount payable in foreign currency — Determination of, as per insurance contract: Six dates compete for fixing rate of exchange at which foreign currency amount has to be converted into currency of the country in which action for recovery has been commenced and decided, namely, (1) date when amount became due and payable; (2) date of commencement of action; (3) date of decree; (4) date when Court orders execution to issue; (5) date when the decretal amount is paid or realised; and (6) where decree is passed in terms of award made in a foreign currency, then date of the award. [Meenakshi Saxena v. ECGC Ltd., (2018) 7 SCC 479]

Land Acquisition Act, 1894 — S. 23 — Compensation — Computation of — Exemplar sales deeds — When to be relied on: In this case, Reference Court, as well as High Court, have not considered sale deeds produced on behalf of State, which reveals prima facie value of certain lands as being in middle of acquired land, in close proximity to and adjoining land acquired under notification of present case. No reason was given as to why High Court, while coming to its conclusion, has not referred to sale statistics. If sale statistics are to be ignored, High Court should have furnished reasons for doing so. Method of granting compensation on basis of cumulative increase as done in Ashrafi case was not permissible on facts, in view of sale deeds produced. Compensation without considering evidence on record cannot be said to be justifiable. Land in Ashrafi case was acquired in 1995 and was very small and was for a commercial purpose, however, land in question now was acquired in 2005. There being a gap of about 10 yrs between two acquisitions, relying on such an acquisition of a decade ago may be unsafe. Present case involves more than 229 acres of land. Court cannot lose sight of facts and documents. Moreover, land in question is acquired mainly for a residential colony, and about 5% commercial area to cater to needs of such residential colony will also be built. Since reasons assigned by High Court while coming to conclusion were assigned solely based on Ashrafi case, and as evidence on record adduced by both parties was not considered, much less properly considered, matter, needs reconsideration by High Court inasmuch as High Court in such matters would be last Court to decide matter on facts. Impugned judgment passed by High Court set aside, and matter remitted to High Court for fresh consideration in accordance with law, to decide first appeals on merits as early as possible, keeping in mind that land was acquired in 2005. [Loveleen Kumar v. State of Haryana, (2018) 7 SCC 492]

Penal Code, 1860 — Ss. 228-A, 376 and 342 — Rape case: Use of name of victim all through in judgments of both trial court and High Court is not consistent with S. 228-A, though Expln. makes exception in favour of superior court judgments. Nonetheless, every attempt should be made by all courts not to disclose identity of victim in terms of S. 228-A. [Lalit Yadav v. State of Chhattisgarh, (2018) 7 SCC 499]

Motor Vehicles Act, 1988 — Ss. 100, 99, 104 and Chs. V and VI — State Transport Undertaking (STUs) — State monopoly of notified routes in public Interest: A temporary permit cannot be issued to a private stage carriage operator to traverse on the notified route which is being served by the State Transport Undertaking, in excess of the permissible distance provided under the scheme. [Kerala SRTC v. Baby P.P., (2018) 7 SCC 501]

U.P. Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961 (32 of 1961) — S. 15(12) r/w S. 15(1) — Notice of no-confidence motion against Pramukh — Validity of: The conditions precedent for stipulation of the period of one year after the expiration from the date of the meeting are dependent on three situations, namely, (i) if the motion is not carried out as contemplated under S. 15(11), (ii) if the meeting would not be held for want of the quorum, and (iii) the notice of no-confidence motion should be in respect of the same Pramukh. [Kiran Pal Singh v. State of U.P., (2018) 7 SCC 521]

Land Acquisition Act, 1894 — Ss. 23 and 54 — Compensation — Computation of — Capitalisation method: In this case it was held that High Court, while discussing material on record to arrive at conclusion based on a capitalisation method, had overlooked ample material on record. Though, High Court, while observing that plantation of about 325 orange trees was done in 1981-1982, as was apparent from Ext. 27, as well as relying upon report of Tahsildar, disclosing about 300 to 325 plants of oranges, had strangely refused to grant compensation for orange trees solely on ground that these orange trees were not fruit-bearing trees. Except referring to aforementioned factor, no other factor was discussed by High Court while erroneously coming to conclusion on grant of compensation based on capitalisation method. [Bilquis v. State of Maharashtra, (2018) 7 SCC 530]

Penal Code, 1860 — Ss. 302 and 324 — Murder trial: In this case there was fight between accused and deceased and assault was alleged by appellant-accused on head of deceased with a wooden log, resulted in his death. As there were material variations/ contradictions in testimonies of witnesses and serious lacunae in prosecution case, accused was entitled to benefit of doubt. Hence, conviction of accused reversed. [Kumar v. State, (2018) 7 SCC 536]

Income Tax Act, 1961 — S. 11: Setting off, of excess expenditure incurred by the trust/charitable institution in earlier assessment year against income of subsequent years. [CIT v. Subros Educational Society, (2018) 7 SCC 548]

Representation of the People Act, 1951 — S. 151-A proviso (a) — Holding of bye-election within six months from date of occurrence of vacancy — Conditions for: When election petition is pending against election of Member then even if he/she tenders resignation and same accepted by Speaker, bye-election cannot be held. [Pramod Laxman Gudadhe v. Election Commission of India, (2018) 7 SCC 550]

Motor Vehicles Act, 1988 — Ss. 149(2), (1), 66(1), (3), 2(28), (31), (47) and 166 — Defences available to insurer: Having regard to S. 66(1) of MV Act, 1988 which prescribes that no owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority, held, use of a vehicle as a transport vehicle in public place without a permit is a fundamental statutory infraction. Though S. 66(3) of MV Act, 1988 carves out certain exceptions to S. 66(1), in order to invoke those exceptions the same must be pleaded and proved. Said exceptions cannot be taken aid of in the course of argument to seek absolution from liability. [Amrit Paul Singh v. Tata AIG General Insurance Co Ltd., (2018) 7 SCC 558]

Criminal Procedure Code, 1973 — Ss. 154 and 460 — General Diary: Non-maintenance of General Diary prior to preliminary enquiry not per se illegal though an irregularity. Consequences of non-maintenance depend on merits of case, a matter of trial. It is for trial court to decide effect and find out whether it causes any prejudice and not High Court. Moreover, aim of preliminary enquiry is to check false prosecution against public servants by misusing process of law for personal vengeance. [State v. H. Srinivas, (2018) 7 SCC 572]

Penal Code, 1860 — Ss. 463, 465 & 464 and Expln. 2 to S. 464 — Conviction for making of false document — When sustainable: S. 463 defines offence of forgery, while S. 464 substantiates the same by providing answer as to when a false document could be said to have been made for the purpose of committing offence of forgery under S. 463. Therefore, S. 464 defines one of ingredients of forgery i.e. making of false document. Charge of forgery cannot be imposed on/sustained against a person who is not the maker of false document in question. Making of a document is different than causing it to be made. As Expln. 2 to S. 464 further clarifies, for constituting offence under S. 464, it is imperative that a false document is made and accused person is maker of the same, otherwise accused person is not liable for offence of forgery. [Sheila Sebastian v. R. Jawaharaj, (2018) 7 SCC 581]

Mahatma Gandhi National Rural Employment Guarantee Act, 2005 — Ss. 3, 4, 13, 14, 15 Sch. II Para 29 — Object — Socio-economic legislation: As delay in payment of wages and compensation to beneficiaries; and reduction in person days and consequent reduction in allocation of funds from projections made by State Governments and UTs have been alleged, directions issued to remedy the situation. [Swaraj Abhiyan (VI) v. Union of India, (2018) 7 SCC 591]

Government Contracts and Tenders — Remedies/Relief — Restitutionary remedies — Recompense for benefit conferred — Recovery of Money Paid/Interest/Profit Earned — Revival of Super Bazar at New Delhi: In this case there was termination of arrangement of revival and the investment made by the bidder (WPL) was refunded along with interest at the rate of 6% p.a. Denial of interest on investment brought in by way of share capital by bidder and adjustment of losses incurred in Super Bazar from the amount to be refunded to bidder, not proper. [Writers And Publisher (P) Ltd. v. A.K. Mishra, (2018) 7 SCC 608]

Cases ReportedSupreme Court Cases

Advocates — Government Law Officers/Counsel/Pleader/Public Prosecutor: Method of appointment and conditions of service of Asstt. Public Prosecutors and Public Prosecutors are qualitatively different inasmuch as Asstt. Public Prosecutors are appointed through competitive selection process conducted by PSC as per prevalent rules and are entitled to all service benefits enjoyed by government employees, while Public Prosecutors are appointed from panel of advocates furnished by Advocate General for a term of three years only and are neither considered as government employees nor do they derive any service benefits enjoyed by government employees. The fact that nature of duties and functions of Asstt. Public Prosecutors and Public Prosecutors are similar, per se, cannot be basis to claim parity with Public Prosecutors in respect of age of superannuation. It was further held that disparity in age of Asstt. PPs appointed on or before 31-3-2013 and those which joined on or after 1-4-2013 inconsequential since those appointed on or before 31-3-2013 were governed by statutory Pension Scheme as applicable to other government employees while those appointed on or after 1-4-2013 were governed by new Contributory Pension Scheme which was again applicable to all government employees. [Kerala Asstt. Public Prosecutors Assn. v. State of Kerala, (2018) 7 SCC 314]

Arbitration and Conciliation Act, 1996 — Pt. I or Pt. II and S. 34 — International commercial arbitration or Foreign-seated arbitration — Determination of: For determination and effect of “seat” of arbitration on maintainability of challenge to award rendered in international commercial arbitration, as in the present case between the appellant (Union of India) and the respondent (foreign company), under S. 34 in courts in India, when the arbitration agreement specifies the “venue” for holding the arbitration but does not specify the “seat”, exercising the power under Or. 6 R. 2 of Supreme Court Rules, 2013 appeal referred to larger Bench for hearing. [Union of India v. Hardy Exploration and Production (India) Inc., (2018) 7 SCC 374]

Armed Forces — Navy — Service conditions — Pension — Reservist pension — Entitlement to: Ex-Navy Direct Entry Artificers are entitled to special pension instead of reservist pension. [Ex Navy Direct Entry Artificers Assn. v. Union of India, (2018) 7 SCC 386]

Armed Forces Tribunal Act, 2007 — Ss. 2, 3(o) and 14 — Jurisdiction of AFT — Service conditions: For a matter to be treated as service matter, it must relate to conditions of service of persons subject to Army Act, 1950, Navy Act, 1957 and Air Force Act, 1950. Decision not to grant permanent secondment to appellant in DGQA (Directorate General of Quality Assurance) by QASB (Quality Assurance Selection Board) which was a different organisation did not in any manner affect service conditions of appellant as Commissioned Officer in Army. Hence, as rightly found by Tribunal it had no jurisdiction to entertain appellant’s original application. [Vijaynath Jha v. Union of India, (2018) 7 SCC 303]

Civil Procedure Code, 1908 — Or. 21 Rr. 90, 92(1) & (3) and Ss. 47, 104(1)(ffa) — Res judicata: Application was filed under Or. 21 R. 90 r/w S. 47 for setting aside court auction-sale. Order dismissing application though appealable but no appeal was filed, sale was confirmed under Or. 21 R. 92(1), and confirmation of sale was not questioned whereby auction purchase attained finality. It was held that by virtue of R. 92(3) applicant/objector would be barred from bringing fresh suit to set aside sale on same ground. [Siddagangaiah v. N.K. Giriraja Shetty, (2018) 7 SCC 278]

Civil Procedure Code, 1908 — S. 97 and Or. 7 R. 7: Challenge to correctness of preliminary decree in final decree proceedings barred when no appeal was preferred by defendant against preliminary decree. Fundamental issue (as to boundaries nad description of suit properties) was consistently and sufficiently averred by defendant to warrant enquiry by trial court, however still it was not enquired into by trial court. Thus, even in absence of appeal against preliminary decree, since defendant had consistently raised fundamental averment in question, to warrant enquiry thereinto by trial court, matter remitted to trial court for consideration of disputed question on basis of evidence. [Selvi v. Gopalakrishnan Nair, (2018) 7 SCC 319]

Constitution of India — Arts. 226 and 21 — Multi-State crime involving high officials of State and Centre: In this case of illegal manufacture and sale of gutkha and pan masala, containing tobacco and/or nicotine, transfer of investigation to CBI to ensure fair investigation and instil confidence of public and victims, upheld. [E. Sivakumar v. Union of India, (2018) 7 SCC 365]

Consumer Protection — Consumer Forums — National Forum — Inadequate infrastructure: Central Government directed to take following measures and apprise court: (a) To sanction additional posts to enhance work efficiency. Sanctioned posts being only about one-fourth of that required/ recommended by Staff Inspection Unit, (b) to take urgent steps to provide additional space to store files as filing of cases going up by nearly 300%, and (c) to state its concurrence about proposed amendment to R. 11 of Consumer Protection Rules, 1987 relating to salaries, honorarium and other allowances of National Forum. [State of U.P. v. ALL U.P. Consumer Protection Bar Assn., (2018) 7 SCC 423]

Criminal Procedure Code, 1973 — S. 407 — Transfer of case within the State — When permissible: As no possibility for conduct of fair and impartial trial at present place, was clearly visible, apprehension of threat to life of appellants, was obvious and as Respondent-accused being very influential in their locality, witnesses were not coming forward to depose and turning hostile due to pressure tactics of accused and no prejudice was being caused to respondent-accused in any manner from such transfer, rejection of transfer petitions by High Court, set aside and transfer of cases, directed. [Sarasamma v. State, (2018) 7 SCC 339]

Inter-State River Water Disputes Act, 1956 — Ss. 6-A, 3, 5 and 6 — Adjudication of Cauvery Water Dispute between riparian States by Tribunal: Corrected Draft Scheme (Cauvery Water Management Scheme) issued and modified in terms of directions of Supreme Court, affirmed and directed to be notified at the earliest. Objections to said Scheme by States of Karnataka and Kerala, rejected. [State of T.N. v. P.K. Sinha, (2018) 7 SCC 403]

Penal Code, 1860 — S. 302 or S. 304 Pt. II and Ss. 341, 323 and 34 [S. 300 Exception 4] — Ingredients and applicability of Exception 4 to S. 300:  In this case of land dispute between parties. injuries caused by sudden attack on deceased by accused persons, resulted in his death after sometime. It was a sudden verbal quarrel and there was no premeditated plan to attack deceased. Civil disputes was already pending between both families. Minor verbal exchange bloated into a sudden physical attack. Hence, conviction converted from S. 302 to S. 304 Pt. II. [Manoj Kumar v. State of H.P., (2018) 7 SCC 327]

Penal Code, 1860 — Ss. 307, 323, 149 and 148: In this case where in a dispute related to watering of field from tubewell of accused party infliction of several injuries by appellant-accused on complainant’s party using lethal weapons, after appreciation of evidence, conviction of accused confirmed. [Suresh Singh v. State of M.P., (2018) 7 SCC 381]

Ranbir Penal Code, 1989 (2 of 1989 Smvt.) (1932 AD) — Ss. 302/341 — Murder trial: In this case accused assaulted deceased on his head with iron rod, resulting in his death. Acquittal of accused was reversed by the High Court, convicting him under Ss. 302/341 RPC. As direct oral evidence coupled with medical evidence, clearly pointed at guilt of accused, testimony of eyewitness was wholly trustworthy, evidence of other prosecution witnesses also found reliable, FIR was lodged promptly, motive also stood established and prosecution proved guilt of accused beyond reasonable doubt, hence, reversal of acquittal, confirmed. [Khurshid Ahmed v. State of J&K, (2018) 7 SCC 429]

Service Law — Judiciary — Conditions/Benefits of service — Unreasonable condition(s): Denial of benefit of increment/seniority until candidate cleared Hindi examination in “higher grade”, not proper. [Ashok Kumar v. State of Jharkhand, (2018) 7 SCC 296]

Service Law — Judiciary — Recruitment process — Vacancy — Determination of: Appeals challenging the advertisement and process of recruitment to Punjab Superior Judicial Service conducted in year 2008, dismissed while holding that a seat that fell vacant on elevation of a judge after the publication of advertisement cannot be included in the recruitment. [Gurmeet Pal Singh v. State of Punjab, (2018) 7 SCC 260]

Service Law — Judiciary — Retirement/Superannuation — Retiral benefits — Computation of qualifying service:  Service rendered by appellant Judicial Officers as Fast Track Court Judges is liable to be counted for pensionary and other benefits, post joining regular judicial service. Methodology of non-creation of adequate regular cadre posts and consequent establishment of Fast Track Courts manned by appellants cannot be used as ruse to deny dues of appellants. [Mahesh Chandra Verma v. State of Jharkhand, (2018) 7 SCC 270]

Tenancy and Land Laws — Revenue Records — Entry in revenue records — Substantive error or clerical error — Determination of: In this case appellant Housing Board acquired and took possession of entire Survey No. 1009. Allegedly survey records did not depict exact extent of land. Some additional area probably should have been included in description of Survey No. 1009. Respondent landowners, taking chance and claiming that additional area under said Survey was not acquired by filing application under S. 87, Andhra Pradesh (Telangana Area) Land Revenue Act, 1317 Fasli, for correction of clerical error. Said application, held, could not have been entertained because said error was not a clerical or mathematical error but a substantive error. [Telangana Housing Board v. Azamunnisa Begum, (2018) 7 SCC 346]

Cases ReportedSupreme Court Cases

Central Excise Act, 1944 — Ss. 3 and 4 (as substituted with effect from 1-7-2000) — Operation, scope and ambit of — Value of exigible goods — Determination of: Impost is on manufacture but it is the value up to the stage of the first sale that is taken as the measure and doing so does not introduce any inconsistency between the nature and character of the levy and the measure adopted. [CCE v. Grasim Industries Ltd., (2018) 7 SCC 233]

Constitution of India — Arts. 21 and 19(1)(a) and 14 — Right to marry person of one’s choice — Honour killing and other forms of honour crimes inflicted on young couples/families by Khap Panchayat: Consent of family or community or clan, not necessary when two adults agree to enter into a wedlock. Rule of Law that only formal institutions under law deal with such situations. Khap panchayat or any panchayat of any nomenclature cannot create a dent in exercise of human right, protected by rule of law. Rule of law as a concept is meant to have order in a society. Elders of family or clan can never be allowed to proclaim a verdict guided by some notion of passion and eliminate life of young who have exercised their choice to get married against wishes of their elders or contrary to customary practice of clan. Honour killing guillotines individual liberty, freedom of choice and one’s own perception of choice. When two adults consensually choose each other as life partners, it is a manifestation of their choice which is recognized under Arts. 19 and 21 of the Constitution. Such a right has constitutional sanction and thus needs protection and cannot succumb to class honour or group thinking which has no legitimacy. Constitution and the laws of country do not countenance such an act and, in fact, whole activity is illegal and punishable as offence under the criminal law. [Shakti Vahini v. Union of India, (2018) 7 SCC 192]

Education Law — Medical and Dental Colleges — Affiliation/Recognition — Renewal of — Applicability of Regn. 8(3)(1)(a) of 1999 MCI Regulations at first renewal stage: The Supreme Court held that High Court erred in holding that Regn. 8(3)(1)(a) would be applicable only to colleges seeking second renewal i.e. admissions of the third batch — First renewal is covered by proviso (a) to Regn. 8(3)(1) as language used is “up to second renewal”. If minimum requirements under Regn. 8(3) (1) not met, letter of permission cannot be granted and further compliance reinspection not permissible. Respondent colleges, thus not entitled to reinspection. [MCI v. Vedantaa Institute of Academic Excellence (P) Ltd., (2018) 7 SCC 225]

Parliament and State Legislatures — Facts and Observations contained in published Parliamentary Committee Reports — Extent to which may be relied on, in court and probative value: Said reports, held, per curiam, admissible in evidence under S. 74, Evidence Act of which judicial notice shall be taken under S. 57(4), Evidence Act. Moreover, for their production in court, permission of Speaker is also not necessary as they are already in public domain. It is court and not Parliament which has to adjudicate all factual and legal issues. People also have a right to know. No exception can be taken to the petitioners obtaining 72nd and 81st Reports of Parliamentary Standing Committee, for using it as evidence in court but Parliamentary Committee Report is not substantive evidence in case of findings of misdemeanour implicating a breach of duty by public officials or private individuals or an evasion of law or any other lis or dispute. Court has to consider other evidence and adudicate independently upon any lis/dispute(s) arising, in accordance with law. Court proceedings are independent of Parliament and based on multiple inputs and evidence. It is certainly possible for court to determine facts and form an opinion in law at variance with Parliamentary Committee report. [Kalpana Mehta v. Union of India, (2018) 7 SCC 1]

Penal Code, 1860 — S. 302 or S. 326 — Murder trial: In this case of assault by appellant-accused and 4 others (A-2 to A-5), using lethal weapons, causing death of two and grievous hurt to informant, after trespassing into informant’s house, property dispute was the cause. High Court reversed acquittal of appellant and convicted him under Ss. 302 and 326 IPC, while upholding acquittal of other 4. While determining the validity of acquittal, the Court acquitted the appellant under S. 302, but maintained the conviction under S. 326. [Jayaswamy v. State of Karnataka, (2018) 7 SCC 219]

Service Law — Recruitment Process — Examination — Scope of Judicial Review/Interference under Art. 226 of the Constitution — Interference with key answers provided by Expert Committee — Need forn judicial restraint: Constitutional courts must exercise great restraint in such matters and should be reluctant to entertain plea challenging correctness of key answers. [U.P. Public Service Commission v. Rahul Singh, (2018) 7 SCC 254]

Cases ReportedSupreme Court Cases

Civil Procedure Code, 1908 — Or. 2 R. 2 — Bar of second suit: Bar of second suit under this provision is applicable when relief claimed in second suit was also available but not claimed in first suit. [Sucha Singh Sodhi v. Baldev Raj Walia, (2018) 6 SCC 733]

Civil Procedure Code, 1908 — Or. 8 R. 1 proviso — Extension of period of filing written statement: Court has discretion to allow defendant to file WS beyond that period in exceptional cases for proper and satisfactory reasons to be recorded in writing. Onus is on defendant to plead and show convincing and cogent reason for filing WS beyond prescribed period. [Atcom Technologies Ltd. v. Y.A. Chunawala & Co., (2018) 6 SCC 639]

Civil Procedure Code, 1908 — S. 100(5) proviso — Disposal of second appeal on substantial question(s) of law other than such questions formulated at time of admission of second appeal — Proper exercise of such power — Requirements of, clarified: Deciding the second appeal on substantial questions of law formulated in the judgment alone and which questions were not framed at admission stage, does not meet the requirements of S. 100(5) proviso. Proviso to S. 100(5) recognises power of High Court to hear appeal on any other substantial question of law which was not initially framed by High Court under S. 100(4). However, this power can be exercised by High Court only after assigning reasons for framing such additional question of law at the time of hearing of the appeal — Thus High Court though has the jurisdiction to frame additional question(s) by taking recourse to proviso to S. 100(5) but it is subject to fulfilling the three conditions, first “such questions should arise in the appeal”, second, “assign the reasons for framing the additional questions” and third, “frame the questions at the time of hearing the appeal”. [Vijay Arjun Bhagat v. Nana Laxman Tapkire, (2018) 6 SCC 727]

Competition Act, 2002 — S. 6(2) r/w Ss. 5(a), 5(b), 31, 42 and 43-A — Penalty for non-compliance with S. 6(2): The proposal to enter into combination was required to be notified to the Commission and the legislative mandate was that the notification had to be made before entering into the combination. Further, the intent being that the Commission has an opportunity to assess whether the proposed combination would cause an appreciable adverse effect on competition and in case combination was to be notified ex post facto for approval, it would defeat the very intendment of the provisions of the Act. [SCM Solifert Ltd. v. CCI, (2018) 6 SCC 631]

Constitution of India — Art. 226 — Writ appeal — Proper mode of disposal: As Division Bench failed to notice averments in writ petition and dismissed writ appeal, writ appeal restored for hearing afresh. [Hemraj Chandrakar v. State of Chhattisgarh, (2018) 6 SCC 628]

Constitution of India — Art. 30(1) — Minority educational institution status — Authority empowered to decide: All questions relating to minority educational institution status, held, have to be decided by National Commission for Minorities. Ss. 11(f) and 12-B of National Commission for Minority Educational Institutions Act, 2004 as amended are wholesome provisions for deciding all these issues. [Paramveer Albert Ekka Memorial College v. State of Jharkhand, (2018) 6 SCC 788]

Criminal Procedure Code, 1973 — Ss. 199(2), (4) and (6) — Prosecution for defamation — Special procedure with regard to S. 199(2): Section 199(2) CrPC provides for a special procedure with regard to initiation of a prosecution for the offence of defamation committed against the constitutional functionaries and public servants mentioned therein. However, the offence alleged to have been committed must be in respect of acts/conduct in the discharge of public functions of the functionary or public servant concerned, as may be. The prosecution under Section 199(2) CrPC is required to be initiated by the Public Prosecutor on receipt of a previous sanction of the competent authority in the State/Central Government under Section 199(4) CrPC. Such a complaint is required to be filed in a Court of Session that is alone vested with the jurisdiction to hear and try the alleged offence and even without the case being committed to the said court by a subordinate court. Section 199(2) CrPC read with Section 199(4) CrPC, therefore, envisages a departure from the normal rule of initiation of a complaint before a Magistrate by the affected persons alleging the offence of defamation. The said right, however, is saved even in cases of the category of persons mentioned in subsection (2) of Section 199 CrPC by sub-section (6) thereof. [K.K. Mishra v. State of M.P., (2018) 6 SCC 676]

Income Tax — Reassessment of income: The power to reassess income is conditional upon the fact that the assessing officer has some reason to believe that the income has escaped assessment. Further, a liberal interpretation of the words “reason to believe” would have the consequence of conferring arbitrary powers on the assessing officer. S. 147 does not allow the reassessment of an income merely because of the fact that the assessing officer has a change of opinion with regard to the interpretation of law differently on the facts that were well within his knowledge even at the time of assessment and doing so would have the effect of giving the assessing officer the power of review and S. 147 confers the power to reassess and not the power to review. [CIT v. Techspan India (P) Ltd., (2018) 6 SCC 685]

Indian Medicine Central Council Act, 1970 — S. 17 and Statement of Objects and Reasons — Indigenous systems — Uniform qualification and registration — No exemption under IMCC Act: Appellants not registered either under State Act nor Central Act, cannot be allowed to practice. Quacks cannot be allowed to play with lives of people. S. 17(3)(c) protects indigenous practitioners having practise of more than 5 yrs on date of commencement of IMCC Act only in case State concerned did not have a State Register under State law. [Kerala Ayurveda Paramparya Vaidya Forum v. State of Kerala, (2018) 6 SCC 648]

Mines and Minerals (Development and Regulation) Act, 1957 — Ss. 11(1) and 17-A(2) — Reservation of land for public sector company: Central Government order taking into account various factors while rejecting proposal of State Government, on facts and law, held, valid. Central Government can consider any factor, while considering an approval under S. 17-A(2). Under S. 11(1), preference has to be given to an RP holder(s) who has carried out reconnaissance, while considering grant of PL and when land is held under PL or ML even reservation under S. 17-A(2) is prohibited. [Geomysore Services (India) (P) Ltd. v. Hutti Goldmines Co. Ltd., (2018) 6 SCC 791]

Motor Vehicles Act, 1988 — S. 166 — Collision of car into rear end of truck resulting in death of one of the passengers in car: Finding of Tribunal was that truck did not brake too suddenly nor veer to centre/right side of narrow road causing the collision, rather cause of collision was that said car did not maintain “sufficient distance” from truck, thus car was being driven rashly and negligently. Claim of contributory negligence re manner in which truckcsuddenly braked, not tenable as when Maruti car was following truck and no fault can be attributed to truck driver, blame must rest on driver of Maruti car for having driven his vehicle rashly and negligently. Hence, plea of contributory negligence on part of truck driver, correctly rejected. [Nishan Singh v. Oriental Insurance Co. Ltd., (2018) 6 SCC 765]

National Commission for Minority Educational Institutions Act, 2004 — Ss. 10(1) and 11(f) and 12, 12-A, 12-B, 12-C, 12-F, 2 and 22 — Harmonious construction of Ss. 10(1) and 11(f) — Powers of NCMEI to issue minority status certificate — Scope of: Even if S. 10(1) requires a no-objection certificate for starting a minority institution (which appellant did not have), it should be harmoniously construed with S. 11(f). So construing, S. 11(f) powers are wide enough and NCMEI is empowered to decide any question directly or indirectly relating to minority educational status of an institution. This is clear from effect of wide expressions “all questions” and “relating to” in S. 11(f). Hence, NCMEI conferring minority status to an institution in midstream, which originally started as a secular institution, held, valid. [Sisters of St. Joseph of Cluny v. State of W.B., (2018) 6 SCC 772]

Penal Code, 1860 — S. 366 — Ingredients of: Mere abduction does not bring accused under ambit of S. 366. It must be proved that accused abducted woman with intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse. Unless prosecution proves that abduction is for purposes mentioned in S. 366, court cannot hold accused guilty and punish him under S. 366. [Kavita Chandrakant Lakhani v. State of Maharashtra, (2018) 6 SCC 664]

Penal Code, 1860 — Ss. 302/34 and 201 — Dowry death — Demand for dowry — Wife shot to death because of — Circumstantial evidence: In this case evidence to prove demand of dowry by appellant-accused (husband and brother-in-law of deceased), present. Story of suicide set up by appellants is wholly unbelievable in the light of evidence brought on record. Circumstances establish chain of events being directly connected with incident, proving involvement of appellants in aforesaid crime beyond reasonable doubt, hence, their conviction confirmed. [Chandra Bhawan Singh v. State of U.P., (2018) 6 SCC 670]

Rent Control and Eviction — Acquisition of Residential Building by Tenant — Eviction decree on ground under S. 20(2)(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 — Proviso to S. 20(4) — Applicability: Proviso provides that if tenant or any member of his family builds or acquires in vacant state any residential building in same city, then tenant would not be saved from liability of eviction even if he pays/deposits entire rent amount with damages, interest, etc. in terms of main S. 20(4). To attract proviso, member of family who owns a residential building need not be shown to be living with the tenant. [Sudama Devi v. Vijay Nath Gupta, (2018) 6 SCC 759]

Rent Control and Eviction — Tenancy/Tenant — Attornment by tenant: By attornment old tenancy continues and attornment can be proved by several circumstances including conduct of tenant. [Apollo Zipper India Ltd. v. W. Newman & Co. Ltd., (2018) 6 SCC 744]

Rent Control and Eviction — Tenancy/Tenant — Statutory tenancy — Heirs and LRs — Status: They inherit statutory tenancy as joint tenantsand not as tenants-in-common, despite Personal Law to the contrary. [Suresh Kumar Kohli v. Rakesh Jain, (2018) 6 SCC 708]

Service Law — Police — Recruitment procedure — Selection Process/Procedure — Selected candidates directed to be sent for training: Additional Advocate General directed to file affidavit stating number of candidates who had qualified in examination in respective categories but were yet to be considered and also outcome of verification of those people who had approached High Court, either as petitioners or as interveners. [Alok Kumar Singh v. State of U.P., (2018) 6 SCC 813]

U.P. Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961 (33 of 1961) (as adopted in Uttaranchal) — S. 15 — No-confidence motion: No-confidence motion against Pramukh of Kshettra Panchayat, is valid when it is signed by more than 50% of members. [Ram Pal Singh v. State of U.P., (2018) 6 SCC 692]

Cases ReportedSupreme Court Cases

Arbitration and Conciliation Act, 1996 — Ss. 7, 8 and 11(6) — Arbitration clause — Interpretation of: The parties are bound by the clauses enumerated in the policy and the court does not transplant any equity to the same by rewriting a clause. Further, an arbitration clause is required to be strictly construed and if a clause stipulates that under certain circumstances there can be no arbitration, and the circumstances are demonstrably clear then the controversy pertaining to the appointment of arbitrator has to be put to rest. [Oriental Insurance Co. Ltd. v. Narbheram Power and Steel (P) Ltd.,  (2018) 6 SCC 534]

Civil Procedure Code, 1908 — Or. 6 R. 17 proviso (as amended by Act 22 of 2002) — Amendment of plaint after commencement of trial — Relevant Considerations: Appellants in this case filed present suit for setting aside ex parte decree passed against their predecessor-in-interest in Civil Suit No. 195 of 1968. Record of suit in which ex parte decree was passed was not traceable in record room. In such circumstances, there could possibly be some inability in obtaining correct particulars well in time on part of appellants. Further: (i) at the time when application for amendment was preferred, only two official witnesses were examined, and (ii) proposed amendment neither changing the nature of suit nor introducing any fresh groun. On these facts, held, the proposed amendment ought to have been allowed, more so when it could not have caused any prejudice to defendants. [Gurbakhsh Singh v. Buta Singh, (2018) 6 SCC 567]

Civil Procedure Code, 1908 — Or. 7 R. 11(d) — Application for rejection of plaint: The plaint is required to be read as a whole. The defence available to the defendants or the plea taken by them in the written statement or any application filed by them, cannot be the basis to decide the application under Order 7 Rule 11(d). Only the averments in the plaint are germane. [Chhotanben v. Kiritbhai Jalkrushnabhai Thakkar, (2018) 6 SCC 422]

Competition Act, 2002 — Ss. 5, 6, 43-A and 64(3) — Combination — Regn. 9(4) of Regulations framed under S. 64(3) — Compliance with — Nature of transaction: Substance of transactions to be seen in circumstances of the case. Structuring of transactions should not be to avoid mandatory provisions of the Act. Having regard to facts and circumstances, it was held, transaction in question not independent one but part of a single, composite combination, interconnected and interdependent with other transactions. Hence non-notification of the transaction which formed part of combination amounted to violation of S. 6 and would entail penalty under S. 43-A. [CCI v. Thomas Cook (India) Ltd., (2018) 6 SCC 549]

Constitution of India — Arts. 21, 14, 32 and 136 — Misuse of provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 in last three decades: Issue of safeguards against arrest and false implications under provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, laid down to operate prospectively. It was also directed that balance must be maintained between need to check crimes against SCs and STs and there is need to protect innocent persons from abuse of process. There must be preliminary inquiry prior to FIR. To avoid false implication of innocent under Atrocities Act, preliminary inquiry must be made by Deputy Superintendent of Police (DSP) concerned prior to registration of an FIR to find out whether it comes within Atrocities Act and not frivolous or motivated. It should be time bound inquiry not exceeding seven days. Even if case has been registered after preliminary inquiry, arrest is not mandatory. There must be written permission prior to arrest. Further, in such cases, no arrest without written permission from appointing authority (in case of public servants) and Senior Superintendent of Police of District (in case of non-public servants) should be made and such permission must record reasons. Magistrate must also apply mind to see if such reasons are justified prior to taking further action. These directions are prospective in nature. [Subhash Kashinath Mahajan v. State of Maharashtra, (2018) 6 SCC 454]

Constitution of India — Arts. 226 and 227: In writ petition against Decree in eviction proceedings under Rent Act for possession and mesne profits, there was delay in complying with High Court directions to tenant to deposit rent and mesne profits. Rejection of tenant’s applications for extension of time and condonation of delay in making said payments without consideration of relevant facts, not proper. [Nonihal Singh v. Maya Devi, (2018) 6 SCC 396]

Criminal Procedure Code, 1973 — S. 438 — Remand — Dismissal of: As the anticipatory bail application was dismissed by High Court, without assigning any reasons, matter remanded back to High Court for deciding bail application filed under S. 438 CrPC, afresh on merits. [Prem Giri v. State of Rajasthan, (2018) 6 SCC 571]

Criminal Trial — Circumstantial Evidence — Generally — To sustain conviction on basis of circumstantial evidence — Requirements of: All links in the chain of circumstances must be complete leading to only hypothesis for guilt of accused. If there are any missing link in the chain of circumstances and possibility of innocence cannot be ruled out, benefit of doubt must be given by acquittal. [Satpal v. State of Haryana, (2018) 6 SCC 610]

Customs Act, 1962 — S. 130-A (prior to its repeal by Act 49 of 2005): On the matter of necessity of calling for a statement from the Tribunal before deciding application seeking reference under S. 130-A, in view of the ruling rendered in Central Mfg. Tech. Institute, (2018) 13 SCC 812 and considering question of law involved, matter referred to larger Bench. [CCE v. Adani Exports Ltd., (2018) 6 SCC 514]

Customs Act, 1962 — S. 135 — Charge under — Bail — Grant of: In the light of period of custody suffered by the appellant-accused and the fact that the co-accused has also been granted bail, the appellant is directed to be released on bail. [Munawwar Ali v. Union of India, (2018) 6 SCC 583]

Education Law — Employment and Service Matters re Educational Institutions — Promotion — Criteria/Eligibility: Cl. 1.1.1, UGC (Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and other Measures for the Maintenance of Standards in Higher Education) Regulations, 2010 provided that for teachers in Faculty of Medicine, norms/regulations of Ministry of Health and Family Welfare, GoI would apply for promotion to post of Professor in Medical College affiliated to Aligarh Muslim University (Central University). Cl. 12(19), Ch. IV, Aligarh Muslim University Ordinances (Executive) for Promotion under the Career Advancement Scheme stipulated that teachers in Faculty of Medicine should possess qualifications as prescribed by MCI. MCI Regulations provided MD/MS as the minimum qualification for appointment to post of Professor in Medical College. Hence held, finding of High Court that since appellants and R-6 & R-7 did not possess PhD they were not entitled for appointment to post of Professor erroneous and set aside. Matter remitted to High Court for consideration afresh since other issues raised by R-1 were not adjudicated. [Shadab Ahmed Khan v. Mujahid Beg, (2018) 6 SCC 385]

Family Courts Act, 1984 — S. 9: Under S. 9, Family Court has a duty to make endeavour to assist and persuade parties in arriving at settlement. Unlike many other legislations, legislature cast a duty on Family Court in this regard. Jurisdiction is not just to decide dispute but on contrary Family Court also has to involve itself in process of conciliation/mediation between parties for assisting them not only to settle disputes but also secure speedy settlement of disputes. Such timely intervention of Family Court will not only resolve disputes and settle the parties peacefully but also prevent sporadic litigation between the parties. [Anu Bhandari v. Pradip Bhandari, (2018) 6 SCC 389]

Income Tax — Deductions — Deduction of lease equalisation charges from lease rental income — Permissibility of: In this case, Respondent filed return of income for Assessment Year 1999-2000 claiming an amount of Rs 1,65,12,077 as deduction for lease equalization charges while Revenue contended that the respondent could not be allowed to claim such deduction in the absence of an express provision regarding it in the IT Act. It was held that the method of accounting followed, as derived from the ICAI’s Guidance Note, was a valid method of capturing real income based on the substance of finance lease transaction. Further, the difference between capital recovery and interest or finance income was essential for accounting for such a transaction with reference to its substance and if the same was not carried out, the respondent would be assessed for income tax not merely on revenue receipts but also on non-revenue items which was completely contrary to the principles of the IT Act and to its scheme and spirit. Further, the bifurcation of the lease rental was not an artificial calculation and, therefore, lease equalisation was an essential step in the accounting process to ensure that real income from the transaction in the form of revenue receipts only is captured for the purposes of income tax. In this case, held, the respondent/assessee was entitled for bifurcation of lease rental as per the accounting standards prescribed by the ICAI and also there was no express bar in the IT Act regarding the application of such accounting standards. [CIT v. Virtual Soft Systems Ltd., (2018) 6 SCC 584]

Income Tax Act, 1961 — S. 5 r/w Sikkim State Income Tax Rules, 1948 — Income by way of prize money from Sikkim State Lottery, prior to 31-3-1989 i.e. the date from which IT Act became applicable in the State of Sikkim — Taxability of: Prior to 26-4-1975, Sikkim was not considered to be a part of India and IT Act was made applicable only by Notification made in 1989. Appellant assessee a resident of Jaipur, Rajasthan, having income from business and property, won Rs 20 lakhs from Sikkim State Lottery and received Rs 16,20,912, after deduction of agent’s/seller’s commission and Rs 1,79,088 being income tax under the Sikkim State Income Tax Rules. It was held that the income accruing and arising in foreign countries can be brought to tax provided the assessee is resident and ordinarily resident and further the income accrued or received in any territory which is considered to be a part of India is within the net of the IT Act. Thus, appellant, being a resident of Rajasthan, the said received income for AY 1986-87 was liable to be included in the hands of the assessee as resident of India. However, since the amount had been earned by the appellant assessee in the State of Sikkim and the amount of lottery prize was sent by the Government of Sikkim to Jaipur on the request made by the appellant, S. 5 of the IT Act would not be applicable. Therefore, income tax would be payable, under the Sikkim State Income Tax Rules and not under the IT Act. Further, in the absence of a specific provision by the legislature for including such an income, the assessee could not be subjected to double taxation. [Mahaveer Kumar Jain v. CIT, (2018) 6 SCC 527]

Income Tax Act, 1961 — S. 80-HHC: Matter regarding entitlement to deduction of export incentives under S. 80-HHC to supporting manufacturer who receives export incentives in the form of duty drawback (DDB), duty entitlement pass book (DEPB), etc., referred to larger Bench. [CIT v. Carpet India, (2018) 6 SCC 620]

Penal Code, 1860 — S. 302 r/w Ss. 149 & 506 and Ss. 147, 148, 458 r/w S. 149 — Circumstantial evidence: In this case, chain of events unequivocally pointing towards guilt of accused, thus, not established. It is the duty of court to separate chaff from husk and to dredge truth from pandemonium of statements. There are no compelling reasons and substantial grounds for High Court to interfere with order of acquittal passed by trial court. Hence, acquittal of accused, restored. [Bhaskarrao v. State of Maharashtra, (2018) 6 SCC 591]

Penal Code, 1860 — Ss. 302/201/149 — Murder trial: In this case of brutal murder of a person with a view to prohibit such person from deposing before court in a case against his assailant, dead body of deceased was cut into two pieces, and thrown at two different places, in order to destroy evidence. There was involvement of 7 accused (including 5 appellant-accused herein, 2 accused since dead). Evidence of 3 eyewitnesses (PWs 6, 11 and 14) was found consistent, cogent and reliable regarding prime appellant-accused K. However, evidence against remaining accused was not as reliable. Hence, conviction of K alone, confirmed. Remaining accused given benefit of doubt and acquitted. [Kameshwar Singh v. State of Bihar, (2018) 6 SCC 433]

Penal Code, 1860 — Ss. 307/34, 323/34, 324/34 and 504: Four accused (appellant-accused) attacked one person T with axe and caused injuries to him on his body. Injuries were abrasion, contusion, and one lacerated wound. Acquittal of all accused reversed by High Court, thereby convicting them under Ss. 307/34, 323/34, 324/34 and 504 and sentencing them accordingly. Interference by Supreme Court with the order of High Court, by modifying respective jail sentences of three accused to that already undergone, while enhancing fine amount awarded by High Court, and also, acquitting the fourth. Reasons for reduction in sentences being: (i) instant litigation is pending in various courts for the past 20 yrs; (ii) seven injuries noticed on body of injured T were not very serious in nature; (iii) T survived leaving no disability much less permanent on his body due to causing of injuries and lived for 20 yrs after the date of alleged incident and died recently; (iv) all appellants underwent almost 1 yr of jail sentence including remission out of total jail sentence awarded by High Court except A-2, who underwent around three months; (v) all appellants were first offender and were not found involved in any criminal activity in the last 20 yrs, though remained on bail throughout; and (vi) Appellants 2 and 3 are reported to be in government service. However, so far as involvement of Appellants 1, 3 and 4, in commission of offence is concerned, from findings of High Court qua each, no case for interference on such findings of fact is called for herein. Hence, finding of conviction of Appellants 1, 3, and 4, is confirmed. For all aforementioned reasons, interference only in quantum of jail sentence awarded by High Court is required and, therefore, their jail sentence is reduced to the sentence already undergone. However, it is just and proper to enhance fine amount imposed by High Court on Appellants 1, 3 and 4 from Rs 7000 to Rs 75,000 for each. [Naresh v. State of Uttarakhand, (2018) 6 SCC 404]

Procedure Code, 1908 — Ss. 152, 151, 33 & 2(2) and Or. 20 — Amendment of decree in order to make it executable: In partition suit, decree was passed by trial court holding plaintiff and defendants to be entitled to 3/5th share and 2/5th share respectively in suit property. There was no dispute as to share allotted in favour of parties concerned but, in order to make that decree executable, defendants moving an application before trial court for amendment of decree seeking direction that sketch map submitted by plaintiff on 6-2-2001 be marked as an exhibit and a part of judgment and decree by effecting necessary corrections in that regard. It was held that since partition decree could not be given effect to without a sketch map of suit schedule property, at the time of passing decree, trial court should have made the sketch map submitted by plaintiff on 6-2-2001 a part of decree. In absence thereof, no party should suffer for the error of court. Consequently, trial court rightly allowed amendment of decree by making the sketch map submitted by plaintiff a part of decree for effecting partition. High Court erred in setting aside that order. [Subhash Chandra Sen v. Nabin Sain, (2018) 6 SCC 443]

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 — S. 18: Review sought of order dt.20-3-2018, Subhash Kashinath Mahajan, (2018) 6 SCC 454. It was clarified that order sought to be reviewed does not bar compensation or other immediate relief being given to victim member of SC/ST as per law. [Union of India v. State of Maharashtra, (2018) 6 SCC 450]

Service Law — Appointment — Judicial Review/Validity of appointment — Exclusion of Judicial Review — Policy/Policy decision/Policy matter — Interference with Equivalence/Marking Systems devised by Appointing Authority — Scope of: Eligibility prescribed for appointment to post of Social Education Organiser was Bachelor’s degree in Sociology from recognised university. K challenged appointment of appellant on ground that appellant did not possess requisite qualifications since she had degree in Malayalam and Sociology (Double Main). High Court by impugned judgment set aside appointment of appellant interfering with marking system. It was held that High Court erred in doing so since only grievance of K was regarding eligibility of appellant. Further held, in such matters it is always advisable to leave award of marks, weightage to be given, etc. to competent authorities. Any interference by court would amount to trenching on wisdom and expertise of selecting authority leading to avoidable litigation and uncertainty of employment unless there is some ex facie perversity or illegality in process. Moreover, University on considering equivalence issue had concluded that degree in Malayalam and Sociology (Double Main) was equivalent to degree in Sociology (Single Main). Appellant, thus, was eligible for appointment. [Thahira P. v. State (UT of Lakshadweep), (2018) 6 SCC 446]

Service Law — Recruitment Process — Irregularities/Malpractice/Illegalities: If selection is found to be tainted in any manner, it is always open to authority concerned to annul such selection to maintain purity of selection process since it is not necessary to segregate tainted and untainted candidates when process itself is tainted. Further held, at pre-appointment stage, decision to cancel selection process can be interfered only if it is patently arbitrary, mala fide or illegal. [Avinash C. v. State of Karnataka, (2018) 6 SCC 614]

Service Law — Recruitment Process — Irregularities/Malpractice/Illegalities: To maintain purity of selection to public posts directed that as far as possible selection process conducted by selection bodies especially State Public Service Commissions and State Selection Boards be videographed by installing CCTV cameras at examination as well as interview centres to extent viable, footage whereof may be seen by independent committee of three members and report of such committee placed on website concerned. [State of Meghalaya v. Phikirbha Khariah, (2018) 6 SCC 618]

Service Law — Recruitment Process — Test/Written examination — Evaluation of answer scripts — Re-verification: As the Committee appointed by High Court found irregularity, High Court directed re-verification of scripts of all 1068 candidates, which was affirmed and not interfered with. Submission that re-verification should be limited only to those filing writ petition, rejected. [Tongbram Bimolchand Singh v. Yumlembam Surjit Singh, (2018) 6 SCC 564]

Specific Relief Act, 1963 — Ss. 34, 35, 37 and 38: In a case where claim of ownership of property is subsequent to its acquisition, where acquisition proceedings attained finality, declaratory remedy of ownership cannot be granted. Suit of such nature cannot be filed. [Y.P. Sudhanva Reddy v. Karnataka Milk Federation, (2018) 6 SCC 574]

Tenancy and Land Laws — Ceiling on Land — Exemption from land ceiling: It is the duty of landowner to show which portion of land is exempted from land ceiling proceedings. [Vishwasrao Satwarao Naik v. State of Maharashtra, (2018) 6 SCC 580]

Transfer of Property Act, 1882 — Ss. 54, 55, 11 and 31 — Supersession of allotment letter by sale deed: Conditions imposed in allotment letter/contract for sale are not binding if not contained in agreement of sale/sale deed. [A.P. Industrial Infrastructure Corpn. Ltd. v. S.N. Raj Kumar, (2018) 6 SCC 410]

U.P. Sugar Undertakings (Acquisition) Act, 1971 (23 of 1971) — Ss. 3 and 2(h)(vi) — Land leased to an undertaking engaged in the manufacture or production of Sugar: The word “held” connotes a wide meaning and all lands held or occupied lawfully and used for the purposes of the factory stood vested in the Government on the appointed day. Further, the word “held” in S. 2(h)(vi) cannot be interpreted as limited only to a holding as an owner of the property and legal possession was sufficient for the lands to vest in the Government by forming part of the scheduled undertaking. Also, the word “including” in S. 2(h)(vi) indicated that the lands held by way of lease were also part of a scheduled undertaking. Further, rejecting the contention that vesting under the 1971 Act was only in respect of the leasehold rights, held, the words “including any leasehold interest therein” in S. 2(h)(vi) could not be understood to have a limiting effect and result in the acquisition of only the leasehold interest in the land. [Gaurav Aseem Avtej v. U.P. State Sugar Corpn. Ltd., (2018) 6 SCC 518]

Cases ReportedSupreme Court Cases

Arbitration and Conciliation Act, 1996 — Ss. 36 and 34 (before and after amendment of S. 36 in 2015): S. 36 as amended in 2015, applies to pending S. 34 applications even in arbitrations commenced prior to 23-10-2015 i.e. date of coming into force of Amendment Act, 2015, as S. 36 is a procedural provision. Rule of automatic stay of operation of award on filing of S. 34 application, even in absence of an order of stay/imposition of conditions by court as per unamended S. 36, held, is no longer applicable. [BCCI v. Kochi Cricket (P) Ltd., (2018) 6 SCC 287]

Constitution of India — Arts. 32 and 21 — Issue of writs — Habeas corpus — Custody of petitioner — Found clearly illegal: Order related custody of petitioner is non est, nullity and without any jurisdiction. Petitioner’s right under Art. 21 stands offended, as he was detained in custody by adopting totally faulty and illegal process. Petitioner directed to be released forthwith. [Champion R. Sangma v. State of Meghalaya, (2018) 6 SCC 348]

Criminal Procedure Code, 1973 — S. 406 — Transfer petitions — Apprehension of not getting a fair and impartial inquiry or trial besides inconvenience of petitioner in pursuing cases — Grounds of: Such apprehension is required to be reasonable and not based upon conjectures and surmises. Convenience for purposes of transfer means convenience of prosecution, other accused, witnesses and larger interest of society. Court has to visualise comparative inconvenience and hardships likely to be caused to witnesses besides burden to be borne by State Exchequer in making payment of travelling and other expenses of official and non-official witnesses, for attending court proceedings, if cases are ordered to be transferred to transferee court. [Harita Sunil Parab v. State (NCT of Delhi), (2018) 6 SCC 358]

Infrastructure Laws — Energy and Power — Electricity — Connection/Disconnection/Reconnection — Electricity connection: Authorities, held, should point out all defects while rejecting application for electricity connection. [D. Saravanan v. TANGEDCO, (2018) 6 SCC 352]

Land Acquisition Act, 1894 — S. 48 r/w Ss. 4, 6 and 9 — Withdrawal from acquisition — When is fraudulent: Withdrawal of acquisition for the benefit of builders/private entities, not permissible, when it through an unholy nexus between the government machinery and builders/private entities deprives innocent and gullible landholders. [Rameshwar v. State of Haryana, (2018) 6 SCC 215]

Motor Vehicles Act, 1988 — Ss. 14(2)(b) and 149 — Statutorily mandated validity period of driving licence (DL) vis-à-vis errors made while issuing DL: As per S. 14(2)(b) licence issued should be for a period of 20 yrs or up to age of 50 yrs whichever is earlier. Date of issuance of original licence in this case was 27-2-1998 and date of birth of driver recorded in licence was 30-4-1961. Hence, licence would had been valid till 29-4-2011 as per statutory mandate, licensing authority erroneously issued DL for a period of 5 yrs when driver concerned was only 37 yrs but since petitioner attained age of 50 yrs on 30-4-2011, licence mentioned expiry date as 29-4-2011. Accident took place on 12-11-2005. High Court judgment setting aside award on ground of invalid licence, reversed. Thus, direction of High Court to recover amounts paid by insurance company to third party injured from appellant (owner of vehicle), set aside. [Compaq International v. Bajaj Allianz General Insurance Co. Ltd., (2018) 6 SCC 342]

Statute Law — Validating or Overriding Enactment/Statute/Legislation — Validating Act — Power to enact — Scope — Supersession by legislature, of a judicial verdict — Permissible limits of — Principles summarized: Though legislature has power to enact validating laws including power to amend laws with retrospective effect and thereby remove causes of invalidity i.e. correct errors/mistakes committed in earlier legislation as pointed out by court in a judgment, the effect of which is to remove the basis and foundation of said judgment, but it cannot overturn or set aside that judgment, that too retrospectively by introducing a new provision in the Act concerned. What the legislature can do is that it can amend the provisions of the statute to remove the basis of the judgment. A judicial pronouncement is always binding unless the very fundamentals on which it is based are altered and the decision could not have been given in the altered circumstances. [State of Karnataka v. Karnataka Pawn Brokers Assn., (2018) 6 SCC 363]

Tenancy and Land Laws — Land Grabbing — Frivolous litigation: In this case as there is prolongation of fruitless litigation by the appellants in different forums, no interference is warranted. [M. Durga Singh v. Yadagiri, (2018) 6 SCC 209]

Cases ReportedSupreme Court Cases

Constitution of India — Art. 14 — Invidious discrimination: Entitlement of former CMs of State of U.P. for allotment of government accommodation for their lifetime in terms of S. 4(3) of U.P. Ministers (Salaries, Allowances and Miscellaneous Provisions) Act, 1981 (as amended by U.P. Act 22 of 2016), violates doctrine of equality and is ultra vires the Constitution. Natural resources, public lands and public goods like government bungalows/official residence are public property and “Doctrine of Equality” which emerges from concepts of justice, fairness must guide State in distribution/allocation of same. Chief Minister, once he demits office is on a par with common citizen, though by virtue of office held, he/she may be entitled to security and other protocols. S. 4(3) of 1981 Act which creates a separate class of citizens for conferment of benefit by way of distribution of public property on basis of previous public office held by them, fails test of reasonable classification violating Art. 14 and is ultra vires the Constitution. Furthremore, U.P. Ex-Chief Ministers Residence Allotment Rules, 1997 were struck down by Supreme Court in Lok Prahari, (2016) 8 SCC 389 on ground that provision for accommodation for ex-CMs as made in the Rules was in direct conflict with S. 4 of 1981 Act. Insertion of S. 4(3), as substantive provision in statute, which sought to bring in same effect as 1997 Rules without curing defect as pointed out, is an invalid attempt to overreach judgment in Lok Prahari case. [Lok Prahari v. State of U.P., (2018) 6 SCC 1]

Constitution of India — Art. 226 — Maintainability of writ petition: In this case, second writ petition was filed after disposal of earlier one as withdrawn. Earlier petition was withdrawn only on account of pendency of appeal. Second writ petition challenging subsequent order passed in appeal, hence held, was maintainable. [Vinod v. District Selection Committee, (2018) 6 SCC 68]

Constitution of India — Art. 32 — Misuse of PIL — Casting aspersions on District Judiciary, High Court Judges, misrepresentation of facts, baseless allegations: In a case death of Special Judge conducting alleged Fake Encounter Death case (Sohrabuddin case), there was non-registration of FIR as inquest report and other materials indicated natural death. Discreet inquiry conducted by Commissioner, State Intelligence Department (SID) also concluding similarly. No complaint was lodged by any relative of said Special Judge in local police station about any suspicion regarding cause of death. Prayer for registration of FIR and court monitored investigation rejected. [Tehseen Poonawalla v. Union of India, (2018) 6 SCC 72]

Constitution of India — Arts. 226 and 32 — Scope of issuance of writ of quo warranto — Principles reiterated: As long as caste and income certificate is valid and in force, a writ of quo warranto cannot be issued on basis of assumptions, inferences and suspicions regarding fact of fulfilment of eligibility criteria. [Bharati Reddy v. State of Karnataka, (2018) 6 SCC 162]

Contract and Specific Relief — Performance of Contract — Time of Performance — Time of the Essence — Termination/Discharge/Compensation/Penalty for delayed performance: Government entered into power purchase agreement (PPA) with respondent contractor (successful bidder). Respondent got a term loan of Rs 267.37 crores and spent huge amounts to purchase 253 acres of land. Respondent completed project after a delay of only 16 days (claimed by respondent) disputed by appellant authorities. As per appellants 16 days’ delay was beyond extra time of 9 months permissible under PPA. Delay was due to resistance faced by project team like physical attacks at allotted site during land procurement. Said circumstance of delay though not force majeure, are unavoidable circumstances. In case of delay, Arts. 2.5 and 2.6 of agreement provide for penalty. By interim order, High Court direction for encashment of bank guarantee had been stayed subject to condition of restitution depending on outcome of case. Penalty of stated amount directed to be paid. Termination of contract, not proper. [M.P. Power Management Co. Ltd. v. Renew Clean Energy (P) Ltd., (2018) 6 SCC 157]

Criminal Procedure Code, 1973 — Ss. 340 and 195(1)(b)(i) — Perjury: As case of deliberate falsehood, not made out, initiation of prosecution for perjury in such case, not justified. Proceedings initiated under S. 340 CrPC r/w S. 195(1)(b)(i) CrPC, closed. [Chintamani Malviya v. High Court of M.P., (2018) 6 SCC 151]

Electricity Act, 2003 — Ss. 84(1) & (2) and Ss. 77, 85(2), (3), (5) & (6), 86(1)(f), 86, 112 and 113 and Statement of Objects and Reasons — State Electricity Commission: It is not mandatory that Chairman of State Commission should be a Judge but it is mandatory that there should be at least one person of law as a Member of the Commission, which requires a person, who is, or has been holding a judicial office or is a person possessing professional qualifications with substantial experience in the practice of law, who has the requisite qualifications to have been appointed as a Judge of the High Court or a District Judge. Consequential directions issued, but to apply prospectively. [State of Gujarat v. Utility Users’ Welfare Assn., (2018) 6 SCC 21]

Income Tax — Income: Amount received by assessee acting as a broker of Bank in trust, to be paid to certain parties on behalf of Bank, not income in the hands of assessee and not taxable. [CIT v. T. Jayachandran, (2018) 6 SCC 189]

Income Tax — Non-Residents/Offshore transactions — Permanent establishment (PE) in India — Relevance of — Arm’s length pricing i.e. where a non-resident compensates a Permanent Establishment (PE) at arm’s length price — Effect of: In this case, following the ruling in E-Funds IT Solution Inc., (2018) 13 SCC 294, held, once arm’s length price procedure has been followed, notice for the reassessment based only on the allegation that the appellant(s) has permanent establishment in India, cannot be sustained. [Honda Motor Co. Ltd. v. CIT, (2018) 6 SCC 70]

Industrial Disputes Act, 1947 — S. 9-A r/w Sch. IV Cl. 8 — Notice of change in any material terms of service to employee — Principles of Natural Justice — Compliance: Temporary decision to enhance age of superannuation of all Central Public Sector employees from 58 yrs to 60 yrs vide order dt. 19-11-1998 with a view to cut down losses, revoked vide order dt. 17-7-2002 and age of superannuation at 58 yrs restored without granting opportunity of hearing to employees, said order dt. 17-7-2002 was not sustainable. [Paradeep Phosphates Ltd. v. State Of Orissa, (2018) 6 SCC 195]

Labour Law — Workman: Employees working in canteen managed by a another party/contractor, providing canteen services to employees of establishment concerned, are entitled to be treated as employees of appellant with all attendant and monetary benefits on a par with regular employees. [Chennai Port Trust v. Industrial Employees Canteen Workers Welfare Assn., (2018) 6 SCC 202]

Transfer of Property Act, 1882 — Ss. 54, 7 and 8 — Sale of remaindermen’s interest during lifetime of holders of life estate: On partition between two brothers, certain properties including property in question coming to share of one I. On subsequent partition executed insofar as branch of I was concerned, the properties were equally divided among four sons of I. Having given ¼th share to each son, right of enjoyment of properties was retained by I and his wife M till their lifetime. In 1975, two sons of I i.e. K and S transferred their undivided share in property in question by executing registered sale deeds in favour of appellant herein. I and M died in 1975 and 1984 respectively. On basis of above sale deeds executed by K and S, appellant (in 1985) filed a civil suit seeking declaration that he was entitled to undivided half-share in property in question. Though K did not have any son, S had four sons, who were not made parties to above suit. Appellant later filed another suit seeking injunction against defendants named therein. In that suit, the four sons of S were added as parties. Trial court decreed former suit holding appellant to be entitled to one half-share in suit property and accordingly passed a preliminary decree in that behalf. However, it declining to grant any relief of permanent injunction against defendants, but, first appellate court held that since the four sons of S were not parties to suit for declaration and partition, insofar as branch of S was concerned, sale deed in favour of appellant would be valid only in respect of share of S. Thus, first appellate court held that appellant would be entitled to share of S in his branch (i.e. 1/4 × 1/6 = 1/24) and share of K. Resultantly, share of appellant was computed as 5/24. View taken by first appellate court was confirmed by High Court in second appeals. After going through the entirety of matter and relevant record, the Supreme Court held that assessment made by first appellate court and High Court, insofar as merits of matter was concerned, was proper and hence, no interference was called for. [A. Dharmalingam v. V. Lalithambal, (2018) 6 SCC 65]

Cases ReportedSupreme Court Cases

Administrative Law — Administrative Action — Administrative or Executive Function — Application/Non-Application of Mind: Bangalore Development Authority (BDA) without applying mind to orders of competent authorities and relevant court orders, declined to correct/restore record-of-rights (RoR) in name of appellant, held, which was unsustainable. [Lakshmamma v. BDA, (2018) 5 SCC 760]

Constitution of India — Art. 136 — Interim relief — P.G. College: In this case involving dispute between Principal and Management, High Court by impugned order restrained appellant from functioning as Principal. Additional interim direction pending disposal, issued. Thus management restrained from filling up post of Principal on a regular basis and High Court directed to dispose of appeal expeditiously before Court closed for summer vacation. [Vandana Tyagi v. Apeejay Saraswati P.G. College for Girls, (2018) 5 SCC 789]

Constitution of India — Art. 136 — Mohandas Gandhi assassination case: Reopening of long concluded matters based on hearsay evidence and new research by petitioner and only being a futile exercise, not maintainable. [Pankaj Kumudchandra Phadnis v. Union of India, (2018) 5 SCC 785]

Constitution of India — Art. 32 — Police — Compensation for death during discharge of duty — Entitlement to: In this case, while chasing miscreants, police personnel were fired upon, as a result of which, one member of the police party, son of the petitioner died. Petitioner sought various reliefs like compensation, protection to family and expeditious trial. As far as criminal case is concerned, law to take its own course and as far as compensation and other reliefs are concerned, petitioner given liberty to approach State Government. [Ganga Malik v. Union of India, (2018) 5 SCC 771]

Criminal Procedure Code, 1973 — S. 482 — Quashment of proceedings by High Court: Assessment made by High Court at a stage when investigation was yet to be completed, completely incorrect and uncalled for. Interference by High Court, not proper. Case restored to its file and investigation to proceed to its logical conclusion. [State of T.N. v. S. Martin, (2018) 5 SCC 718]

Criminal Procedure Code, 1973 — S. 88 — Power to release accused on bond upon his appearance in court, under S. 88 — Nature of: Said power under S. 88 is not mandatory. It is discretionary in nature. Ordinarily word “may” implies discretion of court. If there is a legal right, word “may” would mean a mandatory duty but S. 88 does not confer any right on any person to be released on his furnishing a bond. Purpose and object of S. 88 is to enable court to facilitate appearance of person concerned in court. Thus, said power clearly discretionary. [Pankaj Jain v. Union of India, (2018) 5 SCC 743]

Criminal Procedure Code, 1973 — Ss. 374 and 386(b) — Appeal against conviction: In this case of death by shooting, High Court acquitted all respondent-accused. Acquittal, held, to be justified. [State of U.P. v. Om Pal, (2018) 5 SCC 805]

Criminal Trial — Acquittal — Generally — Presumption of innocence — When strengthened: Presumption of innocence is further reinforced, reaffirmed and strengthened against acquitted accused by judgment in his favour. [Bannareddy v. State of Karnataka, (2018) 5 SCC 790]

Environment Law — Forests, Wildlife and Zoos — Mining and Industry in Forest Area — Illegal Mining: In this case, E-auction of iron ore was illegally stored and confiscated, by State. High Court mistakenly set aside permission granted by Special Court for such e-auction by State, and directed release of iron-ore to respondent. Said order of the High Court, held to be untenable. Order permitting e-auction passed by Special Court restored and liberty granted to respondent to establish his ownership over iron ore before appropriate court. [State of Karnataka v. Vedanta Ltd., (2018) 5 SCC 722]

Environment Law — Forests, Wildlife and Zoos — Mining and Industry in Forest Area: Due to illegal mining in forests of Karnataka and Andhra Pradesh, PIL regarding illegal extraction of 50.57 metric tonnes of iron ore and its illegal export to foreign companies from port in Karnataka was filed. CBI was directed to register case and conduct investigation. [Samaj Parivartana Samudaya v. State of Karnataka, (2018) 5 SCC 730]

Environment Law — Forests, Wildlife and Zoos — Mining and Industry in Forest Area — Illegal Mining: PIL against illegal mining in forest areas of Karnataka and A.P. and illegal export of iron ore to foreign countries from Belekeri Port in Karnataka. CBI investigation directed in the matter. [Samaj Parivartana Samudaya v. State of Karnataka, (2018) 5 SCC 732]

Limitation Act, 1963 — S. 14 — Purpose stated: S. 14 is intended to provide relief against bar of limitation in cases of where remedy is mistakenly taken recourse to or selection of a wrong forum. [Mohinder Singh v. Paramjit Singh, (2018) 5 SCC 698]

Motor Vehicles Act, 1988 — Ss. 149 and 166 — Third-party insurance: Insurance Company is liable to satisfy judgments and awards in respect of third-party risks. Principle of pay-and-recover applies even in absence of liability to pay compensation. [Shivawwa v. National India Insurance Co. Ltd., (2018) 5 SCC 762]

Motor Vehicles Act, 1988 — Ss. 166 and 168 — Fatal accident — Compensation and interest — Computation: In this case, High Court had not computed income towards future prospects and reduced interest from 12% to 9%. Claimants of deceased, held, entitled to additional compensation of 25% towards future prospects. Further amount of Rs 70,000 computed under conventional heads. Award of interest at 9% p.a. by the High Court, upheld. Accordingly total compensation re-computed and enhanced to Rs 12.67 lakhs. [Bhartiben Nayabha Ker v. Sidabha Pethabha Manke, (2018) 5 SCC 716]

Penal Code, 1860 — Ss. 302/34 — Murder trial — Circumstantial evidence: In this case, prosecution miserably failed to establish chain of events, which points out at guilt of accused. Two complaints (one by brother and other by accused wife, of deceased, respectively) were filed. When accused wife in complaint pointed out that deceased committed suicide by consuming poison, doctor was expected to preserve viscera for chemical analysis, which was not done. Doctor who conducted post-mortem, opined that cause of death was asphyxia due to strangulation of throat. Medical evidence in the form of post-mortem report though supports case of prosecution, non-preservation of viscera by doctor, remained fatal to prosecution case. Witnesses specifically supported case of version of accused. There was no apparent injury on dead body of deceased at the time of panchnama. Collective opinion of panch witnesses was that deceased expired due to eating some poisonous substance. There was no direct evidence, as to deceased consuming poison or having been done to death by throttling. Courts below gravely erred in not considering case in accordance with settled principles of law, hence, conviction reversed. [Dev Kanya Tiwari v. State of U.P., (2018) 5 SCC 734]

Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 — Ss. 32, 2(c), 2(d), 2(e), 2(i), 2(k), 2(p), 3(2), 4, 5 and 6 — Power to prescribe qualifications: Parliament conferred rule-making authority upon Central Government to specify minimum qualifications. Specification of qualification should be read in purposive sense which will fulfil objectives of law. Rationale behind prescription of training is that training would sensitise concerned person to salutary objectives and purpose of legislation. [Union of India v. Indian Radiological & Imaging Assn., (2018) 5 SCC 773]

Service Law — Post — Equivalence — Post of Field Supervisor — Whether equivalent to post of Teacher: Field Supervisor falling under Category II of Statute 19(1), (2) & (3) of the Orissa University of Agriculture and Technology, 1996 can be treated as Teacher only after he is declared as such by the University with prior approval of Board. [Orissa University of Agriculture & Technology v. Upendra Nath Patra, (2018) 5 SCC 693]

Service Law — Promotion — Retrospective promotion: In service matters, especially with regard to promotion, there is always an urgency and aggrieved must approach court at earliest opportunity or within reasonable time as third-party rights accrue in meantime in favour of promotees. Further, any directions at belated stage to consider employees for retrospective promotion after considerable time is bound to have serious administrative implications apart from financial burden on Government. Furthermore, mere repeated filing of representations would not be sufficient explanation for delay in approaching court. [Union of India v. Chaman Rana, (2018) 5 SCC 798]

Cases ReportedSupreme Court Cases

Building and Other Construction Workers’ (Regulation of Employment and Conditions of Service) Act, 1996 — SOR and Ss. 1(4), 1(5), 2(1)(d), 3, 4, 5, 6, 7, 11, 12, 13, 14, 15, 18, 22, 24, 60, 62, Chs. VI and VII — Effective and meaningful implementation of: Directions issued with regard to effective and meaningful implementation of the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 and the Building and Other Construction Workers’ Welfare Cess Act, 1996. [National Campaign Committee for Central Legislation on Construction Labour (NCC-CL) v. Union of India, (2018) 5 SCC 607]

Civil Procedure Code, 1908 — Or. 7 R. 11, S. 11 and Or. 2 R. 2: Rejection of plaint on grounds of res judicata, which required consideration of pleadings in written statement, is permissible. While considering application for rejection of plaint, averments in plaint must be considered and not what is stated in written statement. [Soumitra Kumar Sen v. Shyamal Kumar Sen, (2018) 5 SCC 644]

Companies Act, 2013 — Ss. 58(2) and (4) — Public limited company — Free transfer of shares — Right of public limited company to refuse registration of transfer of shares on sufficient: Expression “without sufficient cause” does not mean only illegal transfers or transfers impermissible under any law, can be refused. Transfer can be refused on any other sufficient cause. [Mackintosh Burn Ltd. v. Sarkar & Chowdhury Enterprises (P) Ltd., (2018) 5 SCC 575]

Criminal Procedure Code, 1973 — S. 482Quashment of FIR: S. 482 has to be cautiously utilised while quashing FIR. In this case of abetment of suicide, High Court prematurely quashed FIR without proper investigation having been conducted by police. Hence, impugned judgment of High Court set aside with directions to investigating authorities to complete investigation with promptness and to take it to its logical conclusion. [Munshiram v. State of Rajasthan, (2018) 5 SCC 678]

Criminal Procedure Code, 1973 — Ss. 156(3) vis-à-vis 202(1) and Ch. XII vis-à-vis Ch. XIV and S. 190: Established law is that direction under S. 156(3) does not amount to taking cognizance but there being divergent views of Supreme Court as to applicability of this principle to offences under PC Act: as to whether prior sanction is required or not, before a direction can be issued under S. 156(3) CrPC vis-à-vis PC Act offences, matter referred to larger Bench. [Manju Surana v. Sunil Arora, (2018) 5 SCC 557]

Government Grants, Largesse, Public Property and Public Premises — Relief/Remedies/Moulding Relief, Judicial Review/Public Interest Litigation (PIL) — Writ jurisdiction in respect of public property: Re-auction of leased municipal property directed by High Court without adverting to efficacy of existing lease or the reliefs prayed for in the writ petition, not proper. [State of H.P. v. Ravinder Kumar Sankhayan, (2018) 5 SCC 584]

Income Tax Act, 1961 — S. 80-P r/w S. 80-P(4) coming into effect from 1-4-2007: Review petition challenging order declaring Society giving loans to members as well as general public, non-eligibile to grant of deduction, dismissed being devoid of merits. [Citizen Coop. Society Ltd. v. CIT, (2018) 5 SCC 548]

Karnataka Land Reforms Act, 1961 (10 of 1962) — Ss. 107(1)(i) and (iii) and S. 44(1): Lands which belong to Government or University as specified in the 1961 Act, held, are not within purview of the Act. [University of Mysore v. Rajaiah, (2018) 5 SCC 684]

Motor Vehicles Act, 1988 — Ss. 166 and 173 — Compensation claims under S. 166 — Proper manner of disposal: While dealing with a claim petition in terms of Section 166 of the Motor Vehicles Act, 1988, a Tribunal stricto sensu is not bound by the pleadings of the parties; its function being to determine the amount of fair compensation in the event an accident has taken place by reason of negligence of that driver of a motor vehicle. The Tribunal has to take a holistic view of the matter. A strict proof of an accident caused by a particular vehicle in a particular manner may not be possible. The claimants are merely required to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt cannot be applied. The approach of the Tribunal should be holistic analysis of the entire pleadings and evidence by applying the principles of preponderance of probability. [Mangla Ram v. Oriental Insurance Co. Ltd., (2018) 5 SCC 656]

Mysore Land Reforms Act, 1961 (10 of 1962) — Ss. 14(1), (5) and 111 — Resumption of land from tenant: In this case resumption and taking possession vide compromise was effected by Tribunal instead of through procedure contemplated under S. 14(5). Though procedure for taking possession under S. 14(5), was allegedly not complied with, but properly explained by landlord by drawing attention to compromise decree. Hence, the impugned order holding that procedure contemplated under S. 14(5) was not followed, set aside. [Raghunath Prasad Pande v. State of Karnataka, (2018) 5 SCC 594]

Penal Code, 1860 — S. 302 — Murder trial: In this case strained relations between couple and their families, leading to murder of husband and his sister, by his wife and her family members. Evidence of ocular witnesses, father and brother of deceased husband, and daughter of deceased sister of husband, was found consistent and inspired confidence. Evidence established guilt of accused beyond reasonable doubt and corroborates with that of medical evidence and motive of crime was very clear. Hence, there was no error in appreciation of evidence and conviction confirmed. [Ganapathi v. State of T.N., (2018) 5 SCC 549]

Protection of Children from Sexual Offences Act, 2012 — Chs. II to VIII — Sexual offences against children: Directions issued for speedy disposal of cases involving sexual offences against children. [Alakh Alok Srivastava v. Union of India, (2018) 5 SCC 651]

Representation of the People Act, 1951 — Ss. 86, 81, 82 and 117 — Maintainability of election petition: Where Court granted time to cure defects raised by Registry, and such defects were rectified within stipulated time, election petition not barred by limitation under S. 81(1). Correctness of translated copy of vernacular language cannot be decided at threshold level but it is subject of trial. When copies of materials relied upon are reproduced in CD and its transcription is provided, phone (used for conversation) and supply of chip was not necessary. Such step would not impair defence of successful candidate. [Abdulrasakh v. K.P. Mohammed, (2018) 5 SCC 598]

Security Interest (Enforcement) Rules, 2002 — R. 9: In this case the requirement specified under R. 9(4) was to deposit balance 75% purchase price within 15 days of confirmation. It was clarified that day of confirmation was not same as day of auction. Said period of 15 days would start from day of confirmation of sale by secured creditor and it does not start from day of auction. On day of auction authorised officer only accepts or confirms highest bid which is not same as confirmation of sale under R. 9(4). Rr. 9(2), (4), (5) & (6) supports above interpretation. [Rakesh Birani v. Prem Narain Sehgal, (2018) 5 SCC 543]