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]

Cases ReportedSupreme Court Cases

Constitution of India — Art. 32: In this case, there were 9 FIRs and one criminal complaint case between parties closely related to each other. Parties agreed to settle through mediation. As writ petition was dismissed, interim direction regarding deposit by petitioner into Registry of Court of specified amount, recalled. Resultantly, subsequent orders of refund adjustments, recalled. Resultantly petitioner also entitled to any interest accumulated thereon. [Saraswati Singh v. Shailesh Singh, (2018) 5 SCC 370]

Constitution of India — Art. 32 — Maintainability: In this case, there were 9 FIRs and one criminal complaint case between parties closely related to each other. During present proceedings parties referred to mediation but failed. Parties sought investigation by Special Investigation Team (SIT) and other reliefs relating to investigation. Allegedly a similar writ petition was withdrawn and 10 transfer petitions were dismissed. Hence, petition under Art. 32, held, not maintainable. Remedy of quashing of FIRs or such other relief can be addressed before High Court. [Saraswati Singh v. Shailesh Singh, (2018) 5 SCC 373]

Civil Procedure Code, 1908 — S. 100 — Second appeal — Substantial question of law: In the suit for partition and separate possession, unregistered partition deed (document) was relied on by defendants. Questions relating to admissibility and contents thereof, held, substantial questions of law. [Uma Pandey v. Munna Pandey, (2018) 5 SCC 376]

Advocates — Right to Practise — Right to practise law in India: Foreign law firms/companies or foreign lawyers cannot practise law in India either on litigation or on non-litigation side. [Bar Council of India v. A.K. Balaji, (2018) 5 SCC 379]

Criminal Procedure Code, 1973 — Ss. 482, 216, 173, 200 and 202 — Directions issued by High Court in petition filed under S. 482 in interest of justice: In this case of offence of attacking petitioner in courtroom in presence of Presiding Officer by Advocates, while several persons were attacked, charge-sheet was submitted by police against three of them only. Prayers were made before High Court in petition filed under S. 482 pertaining inter alia to inclusion of certain provisions of IPC and other Acts in charge-sheet filed against three persons before trial court, framing of proper charges against one and taking cognizance against another person, discovering all accused. High Court directed that if petitioner raises his grievance before trial Magistrate same shall be considered and decided by it in accordance with law expeditiously. Keeping in view manner in which offence was committed by Advocates who are also part of the system, High Court considered it necessary to issue certain directions regarding petitioner’s security. The Supreme Court held that High Court itself was cognizant of seriousness of allegations against persons involved in crime and made it clear that all contentions could be raised and all aspects will have to be considered by trial court on merits. Observation made by High Court will not come in way in pursuing criminal cases and for taking same to its logical end. [Osama Aziz v. State Of U.P., (2018) 5 SCC 415]

Criminal Procedure Code, 1973 — S. 195(1)(b)(ii) — Applicability of: S. 195(1)(b)(ii) is applicable only in case the offences enumerated therein have been committed with respect to a document after that document has been produced or given in evidence in a proceeding in any court i.e. during the time when that document was in custodia legis, and not prior thereto. [Chandru Gaonkar v. N.M. Dessai, (2018) 5 SCC 422]

Labour Law — Payment of Gratuity Act, 1972 — S. 2(e) r/w S. 2-A — Gratuity — Entitlement to: Having regularised services of appellant, State had no justifiable reason to deny benefit of gratuity to appellant which was his statutory right. Question as to from which date services were regularised was of no consequence for calculating total length of service for claiming gratuity once services were regularized. 1972 Act being welfare legislation meant for benefit of employees who serve their employer for long time, duty of State to pay gratuity to employee rather than deny benefit on some technical ground and force employee to approach Court to get his genuine claim. [Netram Sahu v. State of Chhattisgarh, (2018) 5 SCC 430]

Criminal Trial — Witnesses — Interested/Partisan witness — Evidence of interested witness — Admissibility: It is settled law that there cannot be any hard-and-fast rule that evidence of interested witness cannot be taken into consideration and they cannot be termed as witnesses but, the only burden that is cast upon courts in such cases is that courts have to be cautious while evaluating evidence to exclude possibility of false implication. Relationship can never be a factor to affect credibility of witness as it is not possible always to get an independent witness. [Sudhakar v. State, (2018) 5 SCC 435]

Consumer Protection — Services — Housing — Non-delivery of flat/house — Damages for price escalation — Reckoning date: Damages become due from time of breach but on facts, courts can deviate. In case of non-delivery of flat/house, and developer refusing alternative equivalent accommodation and buyer lacking means to purchase substitute from market, it would not be reasonable to assess damages from date of breach because of price escalation. [Fortune Infrastructure v. Trevor D’Lima, (2018) 5 SCC 442]

Trusts and Trustees — Religious and Charitable Endowments and Trusts — Administration of institutions — Claim of transfer to particular place based on station seniority and/or service seniority: Station seniority, held, has to be reckoned with reference to last date of the submission of application and not with reference to date of order of transfer. Eligibility must depend on that date, otherwise it would lead to arbitrary exercise of power. [V. Padmakumar v. S. Chandrasekharan Potty, (2018) 5 SCC 454]

Penal Code, 1860 — S. 302 or S. 304 Pt. I [S. 300 Exception 4]: In this case wife was strangulated death by husband. Incident occurred all of a sudden, without any premeditation. Accused did not take undue advantage or acting in cruel or unusual manner. Hence, conviction was rightly altered by High Court from S. 302 to S. 304 Pt. I. [State of M.P. v. Abdul Latif, (2018) 5 SCC 456]

Family and Personal Laws — Family Property, Succession and Inheritance — Will — Suspicious circumstances/Undue influence re making of will/Substance of will if arouses suspicion: In this case estator drew will in his own handwriting, in 1945 in favour of his grandson (respondent-plaintiff). PW 5 grandson-in-law of testator who used to correspond with him and thereby was well acquainted with his handwriting, duly proved said handwriting in will. PW 2 (bank clerk) deposed that respondent secured loan from bank by pledging will in 1964 and since then will kept in bank — PW 2 was cross-examined. On facts, it was held, there were no suspicious circumstances raising doubts about genuineness of will and concurrent findings by court below by reasoned judgments, not disturbed. [Mohan Lal v. Nand Lal, (2018) 5 SCC 459]

Government Contracts and Tenders — Formation of Government Contract — Modes of entering into a Government Contract — Public Auction/Tender: High Court cannot ordinarily interfere with judgment of expert consultant on issues of technical qualifications of a bidder when consultant takes into consideration various factors including basis of non-performance of the bidder. It is not open to Court to independently evaluate technical bids and financial bids of parties as an appellate authority for coming to its conclusion inasmuch as unless thresholds of mala fides, intention to favour someone or bias, arbitrariness, irrationality or perversity are met, where a decision is taken purely on public interest, Court ordinarily should exercise judicial restraint. [Municipal Corpn, Ujjain v. BVG India Ltd., (2018) 5 SCC 462]

Contempt of Court — Art. 129 — Civil Contempt — Contempt of Supreme Court: In this case there were violation of successive orders passed by Supreme Court in Civil Appeal, Contempt Petition and violation of undertakings was given to Supreme Court. In Civil Appeal No. 394 of 2009, while allowing appeal Supreme Court passed an order that Respondent D was to remove entire construction at her own cost and hand over vacant and peaceful possession of land to appellant within 30 days failing which appellant can take assistance of Court to take possession of land and building in which event, D will not be entitled to cost of structure or any other damages. It was held, conduct of Respondent D was contemptuous. She had earlier disobeyed injunction passed by Supreme Court and after filing first Contempt Petition No. 258 of 2010, had demolished construction raised by her and had given a solemn undertaking to Supreme Court that she would not raise any fresh construction nor would she use it for human habitation. Despite earlier order and undertaking, she had not only raised fresh construction but obviously used it for human habitation. Since D got off very lightly in earlier contempt proceedings, she feels that she can take law into her own hands. Reply filed by her virtually aggravates contempt, where she stated that she had not raised any construction in violation to orders of Supreme Court, is obviously false and even her counsel could not enlighten as to how construction, evident from photographs, which are not even denied, does not violate orders of Supreme Court. Not only that, with regard to signboard outside property informing general public that airconditioned and non-airconditioned rooms are were available for rent, explanation given is totally false No material was been placed on record to support averments made by D. Concluding that D had wilfully and knowingly disobeyed the interim order of Supreme Court. Not only that, she had also violated her solemn undertaking given to Supreme Court and the order passed by Supreme Court in earlier contempt proceedings. Therefore, she was held to be guilty of civil contempt. [Dwarika Prasad v. State of U.P., (2018) 5 SCC 491]

Constitution of India — Arts. 21 and 32 — Concept of fair trial, discussed — Transfer of trial when warranted, stated: Court should balance rights of accused and victims and thereafter weigh on scale of fair trial whether shifting is necessary or not. [Mohd. Akhtar v. State of J&K, (2018) 5 SCC 497]

Infrastructure Laws — Maritime Laws — Maritime claim: Maritime claim for charter hire dues i.e. a right in rem to proceed against the ship/cargo is not maintainable against a vessel/ship owned by a person not responsible for payment of such dues. [Sunil B. Naik v. Geowave Commander, (2018) 5 SCC 505]

Cases ReportedSupreme Court Cases

Civil Procedure Code, 1908 — S. 9 — Abuse of process of court — Suppression of material facts: In this case, appellant-plaintiff filed suit for specific performance of contract against D-1 on basis of a power of attorney by suppressing material facts that title and possession regarding said suit land already stood adjudicated in favour of another person D-2 and not D-1, hence, High Court order setting aside decree of specific performance, affirmed. [Baxis Singh v. Sukhdev Singh], (2018) 5 SCC 338]

Civil Procedure Code, 1908 — S. 9 — Civil suit — Maintainability: Dispute principally as to succession to property, turning on question of legitimacy/legal status of parties concerned as legal heirs of deceased person concerned, could only be resolved vide a civil suit. [R. Kasthuri v. M. Kasthuri, (2018) 5 SCC 353]

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) — S. 3(1)(ii) — Preventive detention order under: COFEPOSA does not require detaining authority to specify period for which a detenu is required to be detained, hence, order of detention, not rendered invalid/illegal in absence of such specification. [State of T.N. v. Kamala], (2018) 5 SCC 322]

Constitution of India — Art. 226 — Exercise of power by High Court — Approach: considerations therein: In this case, Division Bench by impugned judgment without considering background of case and reasons which weighed with Single Judge while passing order, modified interim order passed by Single Judge directing payment of salary considering long service of 30 yrs rendered by appellant, to effect that status quo prevailing on date of filing of writ petition to be maintained i.e. non-payment of salary to appellant on account of impugned orders, which was not proper. [Aparbal Yadav v. State of U.P., (2018) 5 SCC 363]

Constitution of India — Art. 32 — PIL — Maintainability: Petitioner’s main prayer seeking: (a) direction for CBI investigation into allegations of reported cases of oil adulteration by mafias, and (b) mandamus directing direct transfer of cash subsidy to intended beneficiaries of kerosene oil, in lieu of kerosene itself, on basis of Aadhaar card or through PDS or other credible mechanism. Petition disposed of with certain directions and clarifications. Initial inquiry conducted by petitioner revealing some truth in allegations. Petitioner was given liberty to approach oil companies with material for redressal of his grievance as per law. However, it was clarified that no opinion was expressed on merits of claim. [Seema Upadhyay v. Union of India, (2018) 5 SCC 325]

Constitution of India — Arts. 21 and 32 — Abduction, rape and murder of 8 yr old minor girl by juvenile accused: In this case there was apprehension of no fair trial as members of Bar were protesting against prosecution of the accused, and their implication/prosecution sought to be given communal overtones. Chargesheet was filed and there was possibility of filing of supplementary charge-sheet. Prayer for transfer of case from a court in J&K to a court in Chandigarh kept open and notice issued. Prayer for providing security to victims’ family members, her counsel and another person assisting them, was acceptable to State Government and accordingly directed. Prayer for strengthening of security in juvenile home, where juvenile accused lodged, accepted and accordingly directed, but with clarification that this shall be done keeping in view care and protection of children. [Mohd. Akhtar v. State of J&K, (2018) 5 SCC 336]

Criminal Trial — Investigation — Videography: In the light of importance of capturing crucial evidence in credible manner, suggestions made by MHA considering report and suggestion of Committee for a centrally driven action plan and phased manner of implementation, accepted and consequential directions issued in the matter. [Shafhi Mohammad v. State of H.P., (2018) 5 SCC 311]

Election — Local Government/Bodies/Municipalities/Panchayats/Autonomous and Other Bodies — Conduct of Election: Incidents of violence were allegedly taking place when candidates went to obtain and file nomination papers. In such situations statute empowered the Election Commissioner to pass appropriate orders. Hence, parties were given liberty to approach State Election Commission and Election Commission was directed to dispose of their grievance as per law. [Bharatiya Janata Party v. State of W.B., (2018) 5 SCC 365]

Hindu Marriage Act, 1955 — Ss. 24 and 13 — Interim maintenance under S. 24 — Effect of maintenance already granted under S. 125 CrPC: Maintenance granted by Family Court under S. 24, 1955 Act would supersede maintenance granted under S. 125 CrPC. [Sanjay Kumar Sinha v. Asha Kumari, (2018) 5 SCC 333]

Supreme Court Rules, 2013 — Or. VI Rr. 1, 2 and 4: Constitution of Benches of Supreme Court is exclusively in domain of prerogative powers of Chief Justice. [Asok Pande v. Supreme Court of India, (2018) 5 SCC 341]

Tenancy and Land Laws — Judicial Interference/Validity — Necessary/Proper parties: In this case, appellant’s land purportedly stood vested in Government. Government executed deeds and transferred said land to tenants R-1 and R-2 as per statutory objective of W.B. Land Reforms Act. Earlier writ petition and resultant transferred proceedings before Land Tribunal concerning challenge to such vesting, allowed in appellant’s favour but in said writ petition and proceedings before Tribunal, R-1 and R-2 not made parties and not heard. High Court by impugned order allowed subsequent writ petition of R-1 and R-2 and remanded matter to Tribunal for giving them opportunity of hearing. Said order of high Court not interfered with. [Ashim Ranjan Das v. Shibu Bodhak, (2018) 5 SCC 356]

Cases ReportedSupreme Court Cases

Constitution of India — Art. 21 — Euthanasia: The right to die with dignity is a fundamental right. Passive euthanasia, voluntary and non-voluntary, is permissible. Smoothening natural process of dying of patients who are terminally ill or in permanent vegetative state or brain dead state without any hope for revival, by withholding or withdrawing life prolonging medical support or treatment, held, permissible. Such patients, if adult and while in conscious mind, can also execute living will in form of “Advance Directive” directing not to prolong their life by medical treatment. Their right to live with dignity till end of their natural span of life without intervention of medical life-sustaining measures is based on right to life, liberty, human dignity and privacy inherent under Art. 21 of the Constitution, as also Common Law right of autonomy and self-determination and also right to refuse medical treatment. Detailed guidelines laid down, to remain in force until legislation is enacted to cover the field. [Common Cause v. Union of India, (2018) 5 SCC 1]

Cases ReportedSupreme Court Cases

Role of The National Courts of the Seat in International Arbitration: This article is the keynote address at the 10th Annual International Conference of the Nani Palkhivala Arbitration Centre, New Delhi, 17-2-2018. [The Role Of The National Courts Of The Seat In International Arbitration by Chief Justice Sundaresh Menon, (2018) 4 SCC (J-1)]

Penal Code, 1860 — S. 302 or S. 304 — Parameters to be taken into consideration while deciding question as to whether a case falls under S. 302 or S. 304: The parameters which are to be taken into consideration while deciding the question as to whether a case falls under Section 302 IPC or Section 304 IPC, are as follows:(a) The circumstances in which the incident took place; (b) The nature of weapon used; (c) Whether the weapon was carried or was taken from the spot; (d) Whether the assault was aimed on vital part of body; (e) The amount of the force used; (f) Whether the deceased participated in the sudden fight; (g) Whether there was any previous enmity; (h) Whether there was any sudden provocation; (i) Whether the attack was in the heat of passion; and (j) Whether the person inflicting the injury took any undue advantage or acted in the cruel or unusual manner. [Lavghanbhai Devjibhai Vasava v. State of Gujarat, (2018) 4 SCC 329]

Indian Medical Council Act, 1956 — Ss. 10-A and 33 — Time Schedules: Amendment of Time Schedules under all MCI Regulations concerned, approved in Ashish Ranjan, (2016) 11 SCC 225, not interfered with. Applicant consortium given limited liberty to approach Supreme Court if there is some difficulty in getting students from State list or All India list. Ashish Ranjan v. Union of India, (2018) 4 SCC 333]

Narcotic Drugs and Psychotropic Substances Act, 1985 — Ss. 52-A, 67, 8/18 and 29 — Search and seizure: Due to discrepancies present in prosecution case, reversal of his conviction under Ss. 8/18 and 29 for recovery of contraband allegedly from possession of respondent-accused, by High Court, affirmed. [Union of India v. Jarooparam, (2018) 4 SCC 334]

Constitution of India — Art. 226: There was challenge to order dt. 15-11-2010 of Regional Transport Authority (RTA) whereby it declared 81 licences as fake licences, after a delay of more than 5 yrs. High Court of Delhi gave liberty to challenge said order of RTA by filing fresh writ petition under Art. 226 before High Court of Allahabad. Appellants after obtaining said orders of Delhi High Court filed fresh writ petition after five months. High Court of Allahabad, therefore, could not have dismissed said writ petitions on ground that there was a delay of more than 5 yrs from date of order of RTA. Hence, impugned order set aside. Matter remanded to High Court for deciding matter afresh on merit. [Arun Maan v. State of U.P., (2018) 4 SCC 339]

Industrial Disputes Act, 1947 — Ss. 17-B, 2(s) and 10 — Independent nature of proceedings under S. 17-B — Payment of full wages to workman pending proceedings in higher courts: During pendency of respondent Corporation’s appeal against finding that respondent was “workman” and reference maintainable, Supreme Court by interim order dt. 4-5-1999 directed Corporation to pay full wages last drawn by applicant on 1-9-1985 inclusive of maintenance allowance provided he was not gainfully employed elsewhere. It was held, nevertheless order dt. 4-5-1999 remained legal and valid, and being independent in nature is required to be given effect to i.e. order passed under S. 17-B does not merge with final order passed in appeal. Considering nature of controversy, long pendency of case, interim order dt. 4-5-1999 passed by Supreme Court, offer of Rs 2 lakhs made by Corporation irrespective of outcome of appeal and sum payable to applicant under various heads, applicant held entitled to Rs 7,50,000 in full and final settlement of all his claims. [Rajeshwar Mahto v. Birla Corpn. Ltd., (2018) 4 SCC 341]

Courts, Tribunals and Judiciary — Tribunals — Appointments to different Tribunals — Whether as per pre-existing procedure or as per interim procedure directed in Kudrat Sandhu, WP (C) No. 279 of 2017, order dt. 9-2-2018 (SC): Where selection process had been substantially complied with as per old procedure, or existing Selection Committee has same composition as provided in new Rules, selection procedure will continue unhindered by above interim order. Thus in case of CESTAT, DRT, DRAT, NCLAT, NCDRC, AFT and ITAT, selection/appointment would not be disturbed or would proceed to its logical conclusion. Where selection process not substantially complied with selection procedure as per interim order will apply. Thus in case of CAT, where no substantial steps are taken for appointment of administrative members, directions in interim order will apply. Where Chief Justice has nominated Chairperson for Search-cum- Selection Committee (SCSC) for making recommendations, selection process will continue and will not be affected by interim order. Thus in case of AAR, APTEL, Appellate Tribunal under SAFEMA Act, Railway Claims Tribunal, Airport Appellate Tribunal, TDSAT, selection process would continue unaffected by interim order. [Kudrat Sandhu v. Union of India, (2018) 4 SCC 346]

Armed Forces — Promotion — Non-promotion/Denial of promotion/Supersession — Promotion to post of Rear Admiral in Indian Navy — Moderation of Numerical grading by NSRO — Propriety: In this case, denial of promotion on basis of adverse remarks in ACRs for period 10-12-2007 to 28-11-2008 and consequential numerical downgrading, despite being amongst top few in batch, alleged. Tribunal while expunging adverse remarks declining to interfere with numerical gradings given to appellant for subsequent period finding that such adverse remarks had no bearing on numerical grading given for period thereafter and did not adversely affect his case from being considered for promotion. It was held, no interference with judgment of AFT called for since as rightly found one particular adverse report which stood expunged did not affect succeeding reports. Besides, though for periods from 2-1-2009 to 27-1-2012 appellant was given higher numerical grading by IO but NSRO moderated same considering overall profile of appellant which was in tune with ACRs of appellant recorded in previous years. Besides, possible that higher grading of appellant was due to his deputation during that period. System of PARB which is unique to Navy was introduced to achieve such moderation and Chief of Naval staff in his capacity as SRO/NSRO was competent to do so. Moreover, though appellant was a good officer but his assertion that prior to 2009 he was ranked No. 1 in Merit List factually incorrect. Besides, all officers who were promoted were senior to appellant and no junior had superseded him. [P.K. Banerjee v. Union of India, (2018) 4 SCC 355]

Civil Procedure Code, 1908 — Or. 26 Rr. 9, 13 and 14 — Demarcation of land — Proper procedure for — Commission to demarcate land — Need to challenge findings of Commission/cross-examine persons concerned at appropriate stage: In this case, held, demarcation as per Commission was correct. Thus, consequential finding that it was appellant Municipal Council that had encroached upon land of respondent plaintiffs, affirmed. [Municipal Council, Bawal v. Babu Lal, (2018) 4 SCC 369]

Entertainment, Amusement, Leisure and Sports — Entertainment & Leisure Establishments/Hotels/Restaurants and Tourism and Services — Licensing, Pricing and Permissible Activities — Regulation of restaurants: Bangalore City Licensing and Controlling of Places of Public Entertainment Order, 2005 issued under S. 31 of the Karnataka Police Act, 1963 regulating restaurants displaying “live band music”, “cabaret dance” and “discotheque” and imposing licence conditions dealing with public safety, comfort, convenience, morality, and law and order and said requirement of licence and its conditions, held, not violative of Arts. 14 and 19. Directions issued for strict compliance with and enforcement of said requirement and conditions. [Karnataka Live Band Restaurants Assn. v. State of Karnataka, (2018) 4 SCC 372]

Penal Code, 1860 — Ss. 307, 147, 148, 323 and 504 r/w S. 149 — Sentence — Compensation to victim — Additional higher amount of fine — Grant of: Accused persons directed to pay additional higher amount of fine to victim, in lieu of further sentence of incarceration as fact that accused persons had already undergone some period in jail, that incident occurred in year 2007 and that since parties have purchased peace, was considered. [State of Karnataka v. Kaisarbaig, (2018) 4 SCC 403]

Criminal Procedure Code, 1973 — S. 167(2) and S. 173 — Right to default bail if charge-sheet not filed within prescribed period, in this case 90 days — When accrues/becomes invocable: As State first filed application for extension of time for filing charge-sheet, that too prior to expiry of 90 days. Thereafter accused filed prayer for bail under S. 167(2) r/w S. 21(2)(b) MCOCA. It was held, only upon rejection of prayer for extension of time sought for filing charge-sheet, right in favour of accused for grant of statutory bail under S. 167(2) r/w S. 21(2)(b) MCOCA could have ignited. Unless prayer for extension of time rejected, no right would accrue in favour of accused much less to consider his application for grant of statutory bail. In such cases it is duty of court to first deal with prayer of extension of period to file charge-sheet. Further during pendency of prayer for extension of time for filing charge-sheet, supplementary charge-sheet was filed. Accused in meantime was being remanded to judicial custody. Therefore, High Court not granting relief to accused on this count upheld. [Rambeer Shokeen v. State (NCT of Delhi), (2018) 4 SCC 405]

Penal Code, 1860 — Ss. 302/149 — Formation of unlawful assembly armed with deadly weapons, with common object to commit murder — Appreciation of evidence: In this case, evidence of injured eyewitness was trustworthy, his evidence stands corroborated by another eyewitness and disclosure statement of accused leading to recovery of murder weapons. Hence, contention that complainant party were aggressors and accused acted in self-defence, rejected. Injuries sustained by accused were simple in nature, and it was not incumbent upon prosecution to explain such injuries. Therefore, conviction and sentence of imprisonment imposed upon accused, confirmed. [Dashrath v. State of Chhattisgarh, (2018) 4 SCC 428]

Constitution of India — Arts. 124 and 137 — Appointment of Judges to Supreme Court and High Courts: Primacy of judiciary in this regard, as re-affirmed in Supreme Court Advocates-on-Record Assn., (2016) 5 SCC 1. Review petitions against, rejected. [Satya Veer Sharma v. Supreme Court of India, (2018) 4 SCC 432]

Juvenile Justice (Care and Protection of Children) Act, 2015 — Ss. 4, 7, 106 and 107 — Implementation of JJ Act: Need of evaluation, assessment and social audit, stressed because in spite of several years from date of enactment of JJ Act (in its old and new avatars), it has not been effectively implemented. Laws relating to children like 2000 Act and JJ Act must be effectively implemented. State and policy-makers must realise constitutional obligation in this regard. Children deserve dignified treatment. Merely because they have no voice, does not mean that they would be compelled to live in conditions that are uncomfortable. High Courts directed to establish child-friendly courts for implementing JJ Act in its true spirit. [Sampurna Behura v. Union of India, (2018) 4 SCC 433]

Cases ReportedSupreme Court Cases

Arbitration and Conciliation Act, 1996 — S. 7(5) r/w S. 11 — Intention to incorporate arbitration clause from another agreement — When cannot be inferred: In this case agreement between appellant and respondent did not contain any arbitration clause, however, Cl. 2 of agreement provided that conditions relating to works and quality specified in agreement between Construction Contractor and employer would be binding on subcontractor/appellant and cl. 9.10 provided that terms and conditions of agreement between Contractor and employer will be applicable for items not mentioned in agreement clauses. Hence, following the ruling in M.R. Engineers and Contractors (P) Ltd., (2009) 7 SCC 696, wherein it was inter alia, held, that where a contract between the parties provides that execution or performance of that contract shall be in terms of another contract (which contains terms and conditions relating to performance and a provision for settlement of disputes by arbitration), then, terms of referred contract in regard to execution/performance alone will apply, and not arbitration agreement in referred contract, unless there is special reference to arbitration clause also, held, that arbitration clause was not intended to be made as a part of contract between appellant and respondent. Thus, appellant’s petition under S. 11 rightly dismissed by High Court. [Elite Engg. and Construction (Hyd.) (P) Ltd. v. Techtrans Construction India (P) Ltd., (2018) 4 SCC 281]

Civil Procedure Code, 1908 — Or. 43 R. 1(r) and Or. 39 R. 1 — Interference in interim order/Interlocutory Orders/Injunction/Stay: When main appeal itself is pending for consideration before High Court and order being interim in nature, interference with interim order must be declined. Expeditious disposal of first appeal on merits, emphasized. [B. Muthukrishnan v. S.T. Reddiar Educational & Charitable Trust, (2018) 4 SCC 298]

Competition Act, 2002 — Ss. 4(2)(c) Expln. (a), 2(b), (f)(ii) & (m): Abuse of dominant position by cable operators’ group by unlawful premature termination of agreement with broadcaster of a TV channel resulting in denial to broadcaster of market access, is violative of S. 4(2)(c). Words “in any manner” in S. 4(2)(c) are of wide import and should be given natural meaning. Once dominant position of the group made out on facts, question whether broadcaster is in competition with the group irrelevant for purpose of application of S. 4(2)(c). [CCI v. Fast Way Transmission (P) Ltd., (2018) 4 SCC 316]

Criminal Procedure Code, 1973 — S. 439 — Bail: Grant of bail by High Court, in a case of murder, being on a very little reference to/or discussion on merits of bail applications. Reason for release mainly one, which reason can, on a fair reading, be understood or misunderstood almost as a mitigating circumstance or a kind of a justification for murder. High Court’s order(s) set aside and bail applications restored to file of High Court, for hearing matter(s) afresh, after giving liberty to parties to file additional affidavits. [Mubin Shaikh v. State of Maharashtra, (2018) 4 SCC 312]

Family and Personal Laws — Guardians and Wards — Custody of Child/Minor — Jurisdiction/Judicial Interference/Parens Patriae Jurisdiction/Conflict of Laws/Private International Law: Principle of comity of courts or forum conveniens cannot alone determine threshold bar of jurisdiction. In these matters, paramount consideration is always best interest of child. This cannot be subject-matter of final determination in proceedings under Or. 7 R. 11 CPC. [Jasmeet Kaur v. Navtej Singh, (2018) 4 SCC 295]

Mines and Minerals (Development and Regulation) Act, 1957 — Ss. 8(2), (3), 10-B and 11 — Mining leases declared to be illegal in Goa Foundation, (2014) 6 SCC 590 — Grant of second renewal — Impermissibility of: State of Goa should have granted fresh mining leases instead of granting a second renewal. Such second renewal, held, illegal in view of Goa Foundation, (2014) 6 SCC 590. Second renewal of mining leases set aside and consequential directions also issued. [Goa Foundation v. Sesa Sterlite Ltd., (2018) 4 SCC 218]

Penal Code, 1860 — Ss. 467, 468 and 471 r/w S. 120-B — Bail — Grant of — Reasons for: Appellant-accused was facing trial under Ss. 467, 468 and 471 r/w S. 120-B IPC. His period of custody was more than one year. High Court rejected his bail application mainly on basis of FSL Report. Though case is pending for a long time, trial has not yet commenced. Evidently, co-accused was granted bail. In aforesaid circumstances, held, it is just and proper to release appellant on bail. Hence, appellant directed to be released on bail on certain conditions. [Vijay Kumar v. State of Rajasthan, (2018) 4 SCC 315]

Public Accountability, Vigilance and Prevention of Corruption — Government Contracts and Tenders — Purchase of helicopters by State Governments — Unsubstantiated and baseless allegations: In this case involving purchase of Agusta Westland helicopter by the State of Chhattisgarh, where allegations of kickbacks and deposit in foreign accounts, specific allegation of deposit in account of Chief Minister’s son were imposed. Prayer for direction for investigation into allegations, was rejected as there was nothing on record to show that said purchases could have been made at a lesser price. CAG did not attribute any extraneous consideration in deal concerned. It was clarified that Government was entitled to make choice in purchase of helicopters which were purchased after evaluation of global tenders. Son of the Chief Minister was not personally a party. Disclosure in Panama Papers is a matter which is still under investigation. Hence, petition filed by Swaraj Abhiyan seeking probe into the alleged anomalies in the purchase of Agusta Westland helicopter by the State of Chhattisgarh, dismissed. [Swaraj Abhiyan v. Union of India, (2018) 4 SCC 300]

Cases ReportedSupreme Court Cases

Advocates — Bar Councils and Associations — State Bar Councils — Free and fair elections: Order for constitution of Committee by Bar Council of India (BCI) to oversee elections to State Bar Council of Tamil Nadu and Puducherry, not interfered with. Said Committee consisted of retired Chief Justices/Judges of various High Courts. [Ajayinder Sangwan v. Bar Council of Delhi, (2018) 2 SCC 770]

Advocates — Bar Councils and Associations — State Bar Councils — Free and fair elections — Schedule for elections — Compliance with directions of Court: BCCI having finalized schedule for election in respective State Bar Councils (as on date of present order, that is, 5-2-2018), contempt petition against BCI, dismissed. [Ajayinder Sangwan v. K.K. Mohan, (2018) 2 SCC 774]

Advocates — Bar Councils and Associations — State Bar Councils — Free and fair elections — Directions: Elections directed to be held on basis of provisional electoral rolls pending verification of Law degrees. All advocates who submitted applications along with Law degrees for verification be enrolled and shown in electoral list. Of course degrees already verified and found false and fake would be excluded from electoral list. Clarified that said electoral list and result of election would be subject to final decision of Court. Universities directed to expeditiously verify said degrees. Appropriate action would be taken against false and fake degrees after verification. Order in Ajayinder Sangwan, (2018) 2 SCC 780, modified accordingly. [Ajayinder Sangwan v. Bar Council of Delhi, (2018) 2 SCC 776]

Advocates — Election to Bar Councils — Verification of members of Bar Council and/or Bar Association: State Bar Council requested permission for conducting immediate elections as term had expired long back while BCI emphasised need of verification of candidates to eliminate fake lawyers to ensure that deserving practising advocates were elected. To do complete justice following directions issued: (i) BCI and State Bar Councils to grant time to advocates to cure defective applications and submit verified degrees within stipulated time whereafter State Bar Councils to publish final electoral rolls; (ii) BCI to declare election schedule in respective State Bar Councils thereafter. [Ajayinder Sangwan v. Bar Council of Delhi, (2018) 2 SCC 780]

CENVAT Credit Rules, 2004 — S. 2(l), as effective from 1-3-2008 — Availing of CENVAT credit in respect of service tax paid on transportation of goods from factory to the place of purchaser — Impermissibility of: Post amendment, “input services” include those services which are used by the manufacturer, in or in relation to the manufacture of final products and clearance of final products “up to the place of removal”. Thus, it is only “up to the place of removal” that service is treated as input service. Therefore, the benefit which was admissible even beyond the place of removal now gets terminated at the place of removal and doors to the CENVAT credit of input tax paid gets closed at that place. [CCE v. Ultra Tech Cement Ltd., (2018) 2 SCC 721]

Evidence Act, 1872 — Ss. 3 to 9, 65-A, 65-B and 62 — Electronic evidence — Standard of proof, authenticity and admissibility — Law summarized: Ss. 65-A and 65-B of the Evidence Act, 1872, cannot be held to be a complete code on the subject. Threshold admissibility of electronic evidence cannot be ruled out on any technicality if same is relevant. Its authenticity and procedure for its admissibility may depend on fact situation such as whether person producing such evidence is in a position to furnish certificate under S. 65-B(4). If party producing electronic evidence is not in possession of device from which electronic document was produced, then such party, held, cannot be required to produce certificate under S. 65-B(4) of the Evidence Act. Requirement of certificate under S. 65-B(4) being procedural, can be relaxed by court wherever interest of justice so justifies. Thus, requirement of certificate under S. 65-B(4) is not always mandatory. [Shafhi Mohammad v. State of H.P., (2018) 2 SCC 801]

Karnataka Value Added Tax Act, 2003 (32 of 2004) — Ss. 2(36), 2(34) and 2(35) — Computation of taxable turnover — Deductions — Entitlement to: Giving benefit of discount at a point of time subsequent to original sale/purchase, held, is a regular trade practice and therefore qualifies for deduction. All regular trade discounts are allowable as permissible deductions if proper proof is shown. Assessee must establish from accounts that the discount relates specifically to sales with reference to which it is allowed. Therefore, R. 3(2)(c) proviso has to be read down to make it workable so that object of providing deductions on account of trade discount is not defeated. Therefore, language of R. 3(2)(c) proviso cannot be construed to mean that discount would be inadmissible as a deduction unless tax invoice pertaining to the goods originally issued shows said discount. [Maya Appliances (P) Ltd. v. CCT, (2018) 2 SCC 756]

Kerala Cooperative Societies Act, 1969 (21 of 1969) — Ss. 2(i), 69 and 70 (as amended by Amending Act 1 of 2000 w.e.f. 2-1-2003) r/w S. 10, Industrial Disputes Act, 1947: Jurisdiction of Labour Court under ID Act to decide service disputes between cooperative society’s employee and employer, not barred by Ss. 69 and 70. KCS Act as well as ID Act both possess concurrent jurisdiction to decide any service dispute arising between cooperative society’s employee and his/her employer (cooperative society). Further held, it is choice of employee concerned to choose any one forum out of two forums available under two Acts to get service dispute decided which is however, subject to satisfying test laid down under ID Act that employee concerned is a “workman”, dispute raised is “industrial dispute” and cooperative society (employer) is “industry” as defined under ID Act. [K.A. Annamma v. Cochin Coop. Hospital Society Ltd., (2018) 2 SCC 729]

Maharashtra Regional and Town Planning Act, 1966 (37 of 1966) — Ss. 49, 50, 126 and 127 — Areas reserved for acquisition — Delay in acquisition procedure — Right of dereservation — Procedure of dereservation: In this case, purchase notice under S. 49 had been given earlier and was confirmed by authorities but no purchase notice under S. 127 had been given after lapse of 10 yrs from date of publication of plan, hence, exercising jurisdiction under Art. 142 of the Constitution to do complete justice, it was declared and held that reservation of appellant’s land had lapsed. However, it was clarified that in all future cases, a second purchase notice must be served under S. 127 after lapse of 10 yrs (even if it has been served under S. 49 earlier) in order that lapsing can take place under S. 127. [Chhabildas v. State of Maharashtra, (2018) 2 SCC 784]

Motor Vehicles Act, 1988 — Ss. 166 and 168 — Fatal accident — Compensation — Future prospects: In this case, 42 yrs old self-employed deceased was in business of cable networks. Tribunal awarded Rs 30,26,810 with interest at 9% p.a. factoring in a 30% towards loss of future prospects. The Supreme Court held that following principle laid down in judgment of Five-Judge Bench in Pranay Sethi, (2017) 16 SCC 680, for deceased who was self-employed, future prospects cannot be denied and since deceased was 42 yrs of age, an addition of 25% on ground of future prospects would be warranted instead of 30% computed by Tribunal. Tribunal’s calculation of annual income based on income tax returns for 2010-2011, 2011-2012 and 2012-2013 being Rs 1,81,500, adding a component of 25% for future prospects to get Rs 2,26,875 and deducting one-fourth towards personal expenses, loss of dependency per annum works out to Rs 1,70,156. Applying multiplier of 14, total loss of dependency at Rs 23,82,187 then adding Rs 3,14,335 towards medical expenses. An addition of Rs 70,000 in terms of Pranay Sethi case for conventional heads of loss of estate (Rs 15,000), loss of consortium (Rs 40,000) and funeral expenses (Rs 15,000). Total compensation quantified at Rs 27,66,522 with interest @ 9% p.a. from date of filing of claim petition. Apportionment directed to be carried out in terms of award of Tribunal. [Reliance General Insurance Co. Ltd. v. Shalu Sharma, (2018) 2 SCC 753]

Motor Vehicles Act, 1988 — Ss. 166, 168 and 173 — Compensation: Adding future prospects to established income of deceased while determining compensation, must be done in all cases as per ruling of five-Judge Bench in Pranay Sethi, (2017) 16 SCC 680. [Munusamy v. T.N. STC (Villupuram) Ltd., (2018) 2 SCC 765]

Rent Control and Eviction — Revision — Jurisdiction as to — Nature and scope — Power to interfere with finding of fact: Appellant herein i.e. owner of shops in question filed eviction petitions relating to said shops against respondent tenants herein under Rent Act concerned on ground that those shops were in dilapidated condition and could not be repaired/reconstructed without evicting tenants. Rent Controller, after going through reports and evidence of expert witnesses produced by both sides, dismissed said petitions opining that appellant was not able to prove that shops were in dilapidated condition. Said finding was affirmed by Appellate Authority. It was held by the Supreme Court that the view taken by courts below was a plausible view which could not be said to be perverse. Hence, High Court in exercise of its limited revisional jurisdiction rightly declined to interfere with such view of courts below. Contention of appellant that Appellate Authority and High Court failed to consider certain subsequent event alleged by him before those courts to fortify his case as to dilapidated condition of shops, held, not tenable as there was nothing on record to show that such contention was raised before said courts. [Surinder v. Nand Lal, (2018) 2 SCC 717]

Cases ReportedSupreme Court Cases

Arbitration Act, 1940 — Ss. 31(4), 30 and 33 r/w Ss. 14(2) and 2(c) — Filing award to make it rule of court and to entertain objections to award — Proper court for: Supreme Court may make a reference to an arbitrator on consent but to hold it as a legal principle that it can also entertain objections as the original court will invite a fundamental fallacy pertaining to jurisdiction. When an arbitrator is not appointed under the Act and the matter is challenged before the High Court or, for that matter, the Supreme Court and, eventually, an arbitrator is appointed and some directions are issued, it will be inappropriate and inapposite to say that the superior court has the jurisdiction to deal with the objections filed under Ss. 30 and 33. [State of Jharkhand v. Hindustan Construction Co. Ltd., (2018) 2 SCC 602]

Civil Procedure Code, 1908 — Or. 5 Rr. 20(1) & (1-A) and 17 — Service of summons — Substituted service: Substituted service under Or. 5 R. 20 of CPC is an exception to normal mode of service. For ordering substituted service under said provision, court is required to be satisfied that: (i) there is reason to believe that defendant is keeping out of the way for purpose of avoiding service, or (ii) for any other reason, the summons cannot be served in ordinary way. Thus, while making that order, court must apply its mind to requirements under Or. 5 R. 20 of CPC and indicate in its order due consideration of provisions contained in Or. 5 R. 20. [Neerja Realtors (P) Ltd. v. Janglu, (2018) 2 SCC 649]

Constitution of India — Art. 51-A(a) and Preamble — Duty to show respect to national symbols i.e. National Flag and National Anthem: When National Anthem is played or sung, due respect as salutation to motherland should be shown by standing up and proper decorum should be maintained, except where a person is differently abled. It is now not mandatory to play National Anthem before starting of film but if National Anthem is played in cinema halls prior to showing of films, it is mandatory for audience to stand up in respect. However, if National Anthem is played as part of storyline of a feature film or newsreel or documentary, audience need not stand up. [Shyam Narayan Chouksey v. Union of India, (2018) 2 SCC 574]

Constitution of India — Arts. 51-A(g), 51-A(h), 14, 21, 29, 48 and Sch. VII List III Entry 17: Issue in these petitions is that whether Prevention of Cruelty to Animals (Tamil Nadu Amendment) Act, 2017, which received Presidential assent on 31-1-2017, is valid and enjoys constitutional protection? Whether defects pointed out in earlier judgments in A. Nagaraja, (2014) 7 SCC 547 and Animal Welfare Board, (2017) 2 SCC 144, can be said to have been removed? In an earlier judgment and review petition filed thereagainst Jallikattu festival was banned as unconstitutional. Hence, matter referred to Constitution Bench. [Animal Welfare Board of India v. Union of India, (2018) 2 SCC 645]

Consumer Protection Act, 1986 — Ss. 12, 13, 14, 22 and 22-C — Request for hearing before Circuit Bench of National Commission — Proper disposal of: Appellants received notice from National Commission and, thereafter, reply was sent on 25-7-2014 praying that matter may be heard in Camp Sitting of National Commission at Bengaluru. Ex parte order passed by National Commission in present cases, based on compromise made by appellant with another consumer, not proper. Copies of orders passed on record does not show that appellants were ever informed that their request for having matter heard at Bengaluru was either accepted or rejected. Therefore, National Commission erred in not issuing fresh notice to appellants. Order of National Commission set aside and matter remitted to it for hearing same on merits. [Mangalam Homes & Resorts (P) Ltd. v. Joy Kaliyavumkal, (2018) 2 SCC 636]

Education Law — Allotment of seats/Counselling for reserved category students/Vacancies/Dereservation — Admission to medical courses: Meritorious Reserved Candidate (MRC) who is treated as general category candidate, may opt for reserved category seat to gain admission in college of his preference. However, for computing percentage of reservation such MRC will be deemed to have been admitted as open category candidate i.e. there is no migration in reserved category. Consequently, one reserved category candidate would be adjusted against the one general category seat vacated by such MRC in lieu of one reserved category seat taken up by MRC. Thus, reservations will not exceed 50%. [Tripurari Sharan v. Ranjit Kumar Yadav, (2018) 2 SCC 656]

Education Law — Medical and Dental Colleges — Affiliation/Recognition — Renewal of — 4th Renewal (fifth batch of MBBS course) for academic year 2017-2018: As there was deficiency of faculty and residence exceeding 5% during surprise inspection, order of Central Government rejecting renewal for academic year 2017-2018, not interfered with. Bank guarantee deposited should be used while considering renewal for next academic year. [IQ City Foundation v. Union of India, (2018) 2 SCC 593]

Insolvency and Bankruptcy Code, 2016 — Ss. 8 and 9 — Demand notice through Advocate — Validity of: Had the legislature wished to restrict the demand notice being sent by the operational creditor himself, the expression used would perhaps have been “issued” and not “delivered” and that delivery, therefore, would postulate that such notice could be made by an authorised agent. Further, the requirement of appending signatures of persons “authorised to act” on behalf of the operational creditor in the demand notice as well as the application under S. 9 of 2016 Code in terms of Form 3 and 5 of Rules also reflects similar understanding of the draftsman of the Adjudicatory Authority Rules. Also, on a conjoint reading of S. 30 of the Advocates Act, 1961 dealing with the fundamental right under Art. 19(1)(g) of the Constitution to practice one’s profession and Ss. 8 and 9 of 2016 Code together with the Adjudicatory Authority Rules and Forms, such notice sent on behalf of an operational creditor by Advocate, held, is valid. [Macquarie Bank Ltd. v. Shilpi Cable Technologies Ltd., (2018) 2 SCC 674]

Land Acquisition Act, 1894 — Ss. 16, 17, 23 and 48 — Incapacity of State to entertain claim for reconveyance of acquired land on any ground whatsoever to original owner after it has vested in State: Reiterating and following V. Chandrasekaran, (2012) 12 SCC 133 and Natural Resources Allocation, In re, (2012) 10 SCC 1, it was held, High Court was justified in holding that regrant of land is not permissible. It is a different matter if there is policy for rehabilitation for persons displaced by land acquisition, in case such persons are rendered landless. If land acquired for public purpose is no longer needed for such purpose, State can transfer such land but such disposal is regulated by doctrine of public trust. Thus, apart from appellants having not been found entitled to regrant of acquired land, regrant policy itself is against Art. 14 of the Constitution. Disposal of property vested in State can only be in manner consistent with Art. 14 of Constitution of India. [Mansukhbhai Dhamjibhai Patel v. State of Gujarat, (2018) 2 SCC 642]

Land Acquisition Act, 1894 — Ss. 23, 18 and 54 — Compensation — Computation of — Land with fruit trees: According to respondent owner, 396 fruit trees were standing on acquired land they were of orange 28, peach 76, mausambi 135 and mango 157. Collector awarded total compensation of Rs 37,321.12 including 30% solatium and 12% increase in respect of such fruit trees. Expert examined by Respondent owner, reported total value of all trees as Rs 6,35,114.70 with certain other factors such as distance of land from town, etc., also found fruit trees to be of “B” category. Respondent in his deposition stated about 250 fruit trees including amrood, orange and mango, all about 4 to 5 yrs old. Patwari examined on behalf of appellant State deposed that in 1985-1986, wheat and other crops were sown and subsequently word orchard added in land without any order from competent authority. Valuation of expert examined by State is far less than valuation provided by expert on behalf of respondents and he also stated that there was no irrigation facilities and further deposed that there could be 90 fruit trees in one killa (equal to one acre). The Supreme Court held that if, only 90 fruits trees can be planted in one killa (one acre), there could not be 250 trees or 396 trees in 7 kanals and 2 marlas of land (which is less than one acre). It is clear that High Court has overlooked certain material aspects of evidence before coming to conclusion and needs to consider entire material in proper perspective afresh. Hence, matter remitted to High Court for fresh disposal in accordance with law. [State of Punjab v. Thuru Ram, (2018) 2 SCC 639]

Rent Control and Eviction — Revision — Revisional jurisdiction of High Court under S. 25 of Provincial Small Cause Courts Act, 1887: Though jurisdiction of High Court under S. 25 is wider than revisional jurisdiction under S. 115 CPC but pure finding of fact based on appreciation of evidence cannot be interfered with in exercise of jurisdiction under S. 25 unless such findings are perverse or based on no material or have been arrived at by taking into consideration inadmissible evidence or without considering relevant evidence. [Trilok Singh Chauhan v. Ram Lal, (2018) 2 SCC 566]

Service Law — Pay — Pay scale — Revised pay scale — Interest: Direction to pay revised pay scale along with 12% interest, not proper. [State of U.P. v. Israr Ahmad, (2018) 2 SCC 672]

Trusts and Trustees — Religious and Charitable Endowments and Trusts — Temple — Private or public — Determination of: As extract of entry in Register of Endowments of Government, prepared by following prescribed procedure, produced on behalf of respondent Department, significant for holding suit temple as public temple, more so in view of rebuttable presumption under S. 114 Ill. (e) of Evidence Act but in view of oral evidence adduced by parties being equally balanced; persistent stand of appellants, countering respondents’ claim, that their father (deceased) had not endowed suit premises to render suit temple as public temple and that they had not received any notice from Endowments Department in connection therewith and attending facts and circumstances, held, parties should be granted an opportunity to adduce all evidence for final and conclusive decision. Accordingly, appellants directed to file representation before authority concerned in support of their claim that suit temple and its premises are their private property. [Vijendra Kumar v. A.P. Charitable & Religious Institutions & Endowment Dept., (2018) 2 SCC 555]

U.P. Consolidation of Holdings Act, 1953 (5 of 1954) — Ss. 9-A, 11, 45 and 48 — Ascertainment of possession: Authorities could not have made entries in favour of appellant objectors without giving public notice and without giving notice to legal heirs of deceased. Hence, High Court was justified in holding that revenue authorities ascertained possession without giving public notice. However, High Court could not have issued directions to authorities to remove names of both parties. Therefore, matter remanded to revenue authorities to ascertain possession of suit lands after hearing both parties. [Jagtar Singh v. State of Uttarakhand, (2018) 2 SCC 647]

Cases ReportedSupreme Court Cases

Arbitration and Conciliation Act, 1996 — S. 7(5) — Arbitration clause in a standard form of contract of a party — Incorporation of, by reference — Law summarized: Though a general reference to an earlier contract (Two-contract case) is not sufficient for incorporation of an arbitration clause in the later contract, a general reference to a standard form contract (Single-contract case) would be enough for incorporation of the arbitration clause. M.R. Engineers & Contractors (P) Ltd., (2009) 7 SCC 696, inter alia, lays down that where the contract provides that the standard form of terms and conditions of an independent trade association or professional institution will bind the parties or apply to the contract, such standard form of terms and conditions including any provision for arbitration in such standard terms and conditions, shall be deemed to be incorporated by reference. [Inox Wind Ltd. v. Thermocables Ltd., (2018) 2 SCC 519]

Arbitration and Conciliation Act, 1996 — Ss. 34 and 37 r/w Ss. 16 and 31(6) — Award: Disputes having arisen between the parties, the respondent invoked arbitration and the arbitrator, on 23-7-2015 took up the issue of limitation first, and then decided the same in favour of the claimant stating that their claims had not become time-barred. Following Siemens Atkeingesellschaft, (2007) 4 SCC 451, held, that award dt. 23-7-2015 was an interim award, which being an arbitral award, could be challenged separately and independently under S. 34 of the Act. Moreover, ruling on issue of limitation is not a ruling on issue of jurisdiction of arbitrator, for it to be appealable under S. 37(2)(a). [IFFC Ltd. v. Bhadra Products, (2018) 2 SCC 534]

Civil Procedure Code, 1908 — Or. 32 Rr. 1, 2, 3, 6, 7, 9, 12, 13 and 14 — Next friend and guardian ad litem: For institution of suit by next friend, court’s permission is not necessary, if next friend is not otherwise incapacitated. Any person can act as next friend if he has no adverse interest against minor. Next friend need not be a duly appointed guardian under Hindu Minority and Guardianship Act, 1956. Concept of guardian under that Act is different from that of next friend or guardian ad litem under Or. 32 CPC as purpose of next friend/guardian ad litem is limited only to looking after interest of minor in particular suit. Merely because certain formalities not observed in appointment of guardian ad litem, decree cannot be set aside if no prejudice is caused to minor defendant thereby. Guardian appointed under 1956 Act can also represent minor in suit if he has no adverse interest against minor. Court required to give notice to minor on his attaining majority about pendency of litigation. It would then be open to him either to continue with suit or to abandon the same. If he chooses to continue, then he may file application before court and consequently next friend/guardian ad litem would stand discharged. Thereafter guardian as defined under S. 4(b) of 1956 Act would automatically continue as guardian. However, if minor after attaining majority continues with the suit of his own, no formal application would be needed. [Nagaiah v. Chowdamma, (2018) 2 SCC 504]

Criminal Procedure Code, 1973 — S. 439(2) — Application for cancellation of regular bail: Issuance of non-bailable warrant of arrest against appellant by High Court on filing of application for cancellation of regular bail granted to appellant herein by trial court (i.e. Addl. Sessions Judge), not proper. [Upendra Sharma v. State of Bihar, (2018) 2 SCC 472]

Human and Civil Rights — Disabled and Differently-Abled Persons — International Human Rights Law — Rights of visually disabled persons for proper, adequate and safe access to public places: Equality, in international human rights law, founded upon two complementary principles: non-discrimination and reasonable differentiation. Non-discrimination seeks to ensure that all person can equally enjoy and exercise all their rights and freedoms. Discrimination occurs due to arbitrary denial of opportunities of equal participation. Equality not only implies preventing discrimination but remedies discrimination against groups suffering systematic discrimination in society i.e. it embraces notion of positive rights, affirmative action and reasonable accommodation. Earlier traditional approach to disability which depicted it as health and welfare issue to be addressed through care provided to persons with disabilities from a charitable point of view resulted in marginalising disabled persons and their exclusion both from mainstream of society and enjoyment of their fundamental rights and freedoms. However, there was a market shift in the ideology in 1970s and focus now is on providing them with suitable and adequate facilities so that their full potential is realised which in turn leads to augmentation of human resources with progress of nation. [Rajive Raturi v. Union of India, (2018) 2 SCC 413]

Interpretation of Statutes — Basic Rules — Determination of legislative intent — Language of statutory provisions clear and unambiguous: When language of any statutory provisions is clear and unambiguous, it is not necessary to look for any extrinsic aid to find out meaning of statute inasmuch as language used by legislature is indication of legislative intent. [All Kerala Parents’ Assn. of Hearing Impaired v. State of Kerala, (2018) 2 SCC 410]

Land Acquisition Act, 1894 — Ss. 23(1), 4(1) and 6 — Market value — Determination of — Relevant date for determining compensation: Sale deed relied upon by appellant claimants dt. 27-12-1988 is post notification. Applying Gobinda Chandra Makal, (2011) 9 SCC 207, held, S. 23(1) provides that compensation to be awarded shall be determined by reference court, based upon market value of acquired land at date of publication of notification under S. 4(1) in Gazette. Hence, post-notification instances cannot be taken into consideration for determining compensation of acquired land. [Maya Devi v. State of Haryana, (2018) 2 SCC 474]

Motor Vehicles Act, 1988 — Ss. 166, 168 and 173 — Death in motor accident — Award of compensation — Reversed by High Court: As false case was set up by appellants to support a claim for compensation, no interference warranted. [Anil v. New India Assurance Co. Ltd., (2018) 2 SCC 482]

Penal Code, 1860 — S. 302 or S. 304 Pt. II [S. 300 Exception 4]: In this case repeated six knife-blows by accused to different body parts of deceased, resulted in death of deceased. Said blows were inflicted without premeditation in sudden fight in heat of passion and no evidence was present to suggest that accused had assaulted deceased with intention to cause his death. Moreover, accused showed some contrition upon recovering his senses and took deceased to hospital, etc. Hence, neither fact i.e. merely using knife in commission of offence nor factum of multiple injuries given by accused, sufficient to deny him benefit of S. 300 Exception 4. Conviction under S. 304 Pt. II, restored. Sentence, however, enhanced from 5 yrs’ RI to 10 yrs’ RI. [Atul Thakur v. State of H.P., (2018) 2 SCC 496]

Rent Control and Eviction — Subletting/Sub-Tenant/Sub-Tenancy — Subletting of tenanted premises — Seeking eviction of tenant on ground of: Sine qua non for proving case of subletting is that tenant has either wholly or in part transferred or/and parted with possession of tenanted premises in favour of any third person without landlord’s consent. If tenant is able to prove that he continues to retain exclusive possession over tenanted premises notwithstanding any third party’s induction in said premises, no case of subletting is made out against such tenant. [Flora Elias Nahoum v. Idrish Ali Laskar, (2018) 2 SCC 485]

Rights of Persons with Disabilities Act, 2016 — Ss. 31, 32 and 2(r): Full compliance with statutory provisions directed i.e. (i) 5% seats in government institutions of higher education and other higher educational institutions receiving aid from Government to be reserved for persons with disabilities; (ii) Right to free education to children with benchmark disabilities between age of 6 to 18 yrs. Educational institutions directed to submit list of disabled persons admitted in each course every year to the Chief Commissioner and/or the State Commissioner as case may be and appropriate consequential actions to be taken by them against defaulting institutions. Additionally, law colleges to send intimation in this behalf to BCI while other institutions to notify compliance to UGC. [Disabled Rights Group v. Union of India, (2018) 2 SCC 397]

SCs, STs, OBCs and Minorities — Reserved category status — Determination of — Claim to SC community “Jatav” status on basis of caste status of husband: Caste is determined by birth, which cannot be changed by marriage with person of Scheduled Caste. Since appellant wife was born in “Agarwal” family which falls in general category she should not have been issued with SC certificate. [Sunita Singh v. State of U.P., (2018) 2 SCC 493]

Cases ReportedSupreme Court Cases

Civil Procedure Code, 1908 — Or. 41 Rr. 23, 23-A & 25 and Or. 5 — Remand for fresh trial on merits: As there was legal infirmity in not serving notice on all defendants, order of remand was justified. [Jayaprakash v. T.S. David, (2018) 2 SCC 294]

Civil Procedure Code, 1908 — Or. 6 R. 17 and Or. 7 R. 14 — Applications for amendment of pleadings and for production of documents — When may be allowed: In respect of application under Or. 6 R. 17, held, (i) when suit is still at initial stage that is when trial has not yet begun; (ii) where proposed amendment would not change nature of cause of action; (iii) where applications are not filed at belated stage; under these circumstances, courts should be liberal in allowing proposed amendment. Concerning Or. 7 R. 14 application, held, application for production of document(s) can be considered (i) when trial is at initial stage, and trial is yet to begin; and (ii) when application not filed at belated stage. [N.C. Bansal v. U.P. Financial Corpn., (2018) 2 SCC 347]

Constitution of India — Art. 226 — Habeas corpus — Custody of child — Inter-country dispute: Manner in which habeas corpus jurisdiction is to be exercised i.e. when question is one of immediate restoration of custody/ repatriation of child, as distinguished from wardship jurisdiction in which question is one of entitlement in law to custody of child, discussed. India is a non-signatory to international convention viz. Civil Aspects of International Civil Abduction. Welfare of child is predominant criterion. If considerable time has elapsed between removal of child from native country by any parent and steps taken for repatriation by writ petitioner parent, court would prefer an elaborate enquiry into all relevant aspects bearing on the child. Immediate restoration of child is called for only on an unmistakable discernment of the possibility of immediate and irremediable harm to it and not otherwise. Unless continuance of the child in the country to which it has been removed, is unquestionably harmful, when judged on the touchstone of overall perspectives, perceptions and practicabilities, it ought not to be dislodged and extricated from the environment and setting to which it had got adjusted for its well-being. [Prateek Gupta v. Shilpi Gupta, (2018) 2 SCC 309]

Consumer Protection — Consumer Forums — Generally — Inadequacy of Members/Presiding Officers, Resources and Infrastructure: As there is poor organisational set-up, grossly inadequate infrastructure, absence of adequate trained manpower, lack of transparency in selection process, absence of criteria of selection process, anomalous situation arising from service conditions of members of Consumer For a, directions were issued to frame rules by order dt. 21-11-2016 in All U.P. Consumer Protection Bar Assn., (2017) 1 SCC 444, to Union Government, State Governments and to National Commission as provided in Consumer Protection Act, 1986, reiterated. Further directions issued on 7-3-2017 after perusal of proposed Rules and Regulations, reiterated. However, in view of need for certain modifications in Rules and Regulations, which require further debate and deliberation, time granted and other directions also issued. [State of U.P. v. All U.P. Consumer Protection Bar Assn., (2018) 2 SCC 225]

Criminal Procedure Code, 1973 — S. 102(1): “Any property” includes any bank account creating suspicion about commission of an offence. Investigating officer (IO) in course of investigation has power to seize or prohibit operation of bank account of any person which may be found under circumstances creating suspicion of commission of any offence. Bank account need not be only of accused but can be any account creating suspicion about commission of offence. Even if name of a body/person with which accused concerned has an association (a trust in present case), is not included as accused in FIR but during investigation IO believes that persons named as accused are actively associated with that trust, and, that circumstances emerging from transaction(s) done by them from bank accounts pertaining to that trust create suspicion of commission of offence, IO can exercise his discretion to issue directions to seize those accounts. [Teesta Atul Setalvad v. State of Gujarat, (2018) 2 SCC 372]

Criminal Procedure Code, 1973 — S. 386 — Powers of appellate court in dealing with appeals: Principles summarised regarding powers of appellate court in dealing with appeals to direct retrial. [Issac v. Ronald Cheriyan, (2018) 2 SCC 278]

Education Law — Professional Colleges/Education — Engineering or Technical Colleges or MBA — AICTE Role and Duties — Technical education: Due to invalidation of degrees in Engineering by Court in Rabi Shankar Patro, (2018) 1 SCC 468, directions issued on clarifications of judgment regarding chance to prove merit to validate it by re-clearing Engineering exams under proper conditions. [Orissa Lift Irrigation Corpn. Ltd. v. Rabi Sankar Patro, (2018) 2 SCC 298]

Narcotic Drugs and Psychotropic Substances Act, 1985 — S. 20 — Search and seizure: In this case of alleged recovery of contraband (charas) from gunny bags being carried by respondent-accused, High Court reversed conviction of respondents under S. 20. The Supreme Court held that going by number of discrepancies in prosecution case coupled with contradictory statements by prosecution witnesses, entire prosecution story is vitiated and leads to discrediting its version. Prosecution failed to establish commission of alleged offence by respondents beyond reasonable doubt. Evidence is scanty and lacking support to establish that contraband was really recovered from possession of respondents in the manner alleged by prosecution. The law, the court should follow, for awarding conviction under provisions of NDPS Act, is, “more stringent the punishment stricter the proof”. In such cases, prosecution evidence has to be examined very zealously so as to exclude every chance of false implication but, herein, prosecution story cannot be believed to award conviction to respondents. Accused deserve benefit of doubt. Therefore, reversal of conviction of respondents by High Court, confirmed. [State of H.P. v. Trilok Chand, (2018) 2 SCC 342]

Narcotic Drugs and Psychotropic Substances Act, 1985 — Ss. 54, 35, 20(b)(ii)(C), 42 and 50 — Search and seizure: NDPS Act provides for a reverse burden of proof upon accused, contrary to normal rule of criminal jurisprudence for presumption of innocence unless proved guilty. This however does not dispense with requirement of prosecution to having first establish a prima facie case, only whereafter, burden will shift to accused. Mere registration of a case under NDPS Act will not ipso facto shift burden on to accused from the very inception. Compliance with statutory requirements and procedures shall have to be strict and scrutiny stringent. If there is any iota of doubt, benefit shall have to be given to accused. [Gorakh Nath Prasad v. State of Bihar, (2018) 2 SCC 305]

Penal Code, 1860 — Ss. 306 and 498-A — Bride committed suicide by consuming rat poison: As due to harassment by husband and in-laws for not bringing dowry, bride committed suicide by consuming rat poison. High Court upheld conviction of two appellant-accused (mother-in-law and husband) under Ss. 306 and 498-A. Validity of the conviction and sentence, affirmed. [Anusuiya v. State of M.P., (2018) 2 SCC 272]

Rent Control and Eviction — Eviction Suit/Trial: In eviction suit filed by landlord, only landlord and tenant are necessary parties. Landlord is required to plead and prove only two things (i) existence of relationship of landlord and tenant between parties; and (ii) grounds of eviction mentioned under relevant rent law. When these two things proved, eviction suit succeeds. Title of landlord in eviction suit is not relevant. If landlord fails to prove his title but proves relationship of landlord and tenant, and proves existence of any ground pleaded for eviction then his suit would succeed. On the other hand, if landlord proves his title but fails to prove relationship of landlord and tenant, then his suit would fail. Plaintiff or petitioner in proceedings, being dominus litis, cannot be compelled to implead any third party to proceedings unless that third party proves that he is necessary party and without his presence suit cannot be proceed and nor can be decided effectively. If there are more than one owners to suit premises, then any one of them can file eviction suit against tenant. It is not necessary that all owners should file suit jointly. In eviction suit, question of title or extent of shares of co-owners in suit premises cannot be decided and nor can it be made subject-matter of determination. Eviction proceedings are not concerned with respective rights of co-owners. These proceedings are concerned about eviction of tenant from suit premises. [Kanaklata Das v. Naba Kumar Das, (2018) 2 SCC 352]

Service Law — Recruitment Process — Examination — Re-evaluation — Correctness of answer key — Scope of judicial review: Court can recommend preventive measures such as (i) establishing a system of moderation; (ii) avoid any ambiguity in the questions, including those that might be caused by translation; and (iii) prompt decision be taken to exclude suspect question and no marks be assigned to such question. If a statute, Rule or Regulation permits re-evaluation of an answer sheet or scrutiny of an answer sheet as a matter of right, then it must be permitted. If not, court may also permit it only if it is demonstrated very clearly, without any inferential process of reasoning or by a process of rationalisation and only in rare or exceptional cases that a material error has been committed. Onus is on candidate to demonstrate such clear and material incorrectness of answer key. Court should be extremely reluctant to substitute its own views against views of experts. Court should never take upon itself task to re-evaluate the answer sheets. Importantly, sympathy or compassion does not play any role in the matter of directing or not directing re-evaluation of an answer sheet. If an error is committed by the examination authority, the complete body of candidates suffers. The entire examination process does not deserve to be derailed only because some candidates are disappointed or dissatisfied or perceive some injustice having been caused to them by an erroneous question or an erroneous answer. All candidates suffer equally, though some might suffer more but that cannot be helped since mathematical precision is not always possible. There must be finality to results of public examination. Litigation cannot not go on for years. [Ran Vijay Singh v. State of U.P., (2018) 2 SCC 357]

Specific Relief Act, 1963 — S. 21 — Compensation in lieu of specific performance: Vendee under agreement to sell entitled to compensation in lieu of specific performance, where agreement to sell of immovable property becoming incapable of being performed due to acquisition of that property by Government under LA Act, 1894 paid by State for acquisition. [Urmila Devi v. Mandir Shree Chamunda Devi, (2018) 2 SCC 284]

Town Planning — Slum Rehabilitation/Development — Slum rehabilitation scheme: Due to inordinate delay in completion of Scheme, despite change of developer by SRA, change in scheme and building norms, builder gaining advantage of higher Floor Space Index (FSI), replacement of developer directed in terms below. SRA directed to invite, through advertisement, letters of intent from renowned builders/developers, who have capacity and experience to take up such a large project. Manner of advertisement, also stated. SRA also directed to take a bank guarantee of Rs 200 crores from successful builder. Developers/builders should indicate what benefit in kind or portion of their own free sale area they are prepared to part with for society of slumdwellers as slum-dwellers are owners of land. [Susme Builders (P) Ltd. v. Slum Rehabilitation Authority, (2018) 2 SCC 230]

Cases ReportedSupreme Court Cases

Arbitration and Conciliation Act, 1996 — Ss. 31(7)(a) and (b) — Challenge to award of interest for pre-reference period, pendente lite and post reference period — Waiver of, when may be inferred: If a plea is available, whether on facts or law, it has to be raised by the party at appropriate stage in accordance with law and if not raised or/and given up with consent, the party would be precluded from raising such plea at a later stage of the proceedings on the principle of waiver. [Union of India v. Susaka (P) Ltd., (2018) 2 SCC 182]

Civil Procedure Code, 1908 — Or. 6 R. 17 proviso — Proviso barring entertainment of application for amendment of pleadings after commencement of trial — Trial when commences: After framing of issues, the case was fixed for recording of evidence of plaintiff, but instead of producing evidence, plaintiff took adjournment and in meantime he filed application under R. 17. Plaintiff led evidence thereafter. According to plaintiff, he led evidence even on amended pleadings; hence, the Court held that amendment application deserved to be allowed. [Mohinder Kumar Mehra v. Roop Rani Mehra, (2018) 2 SCC 132]

Constitution of India — Art. 227 — Supervisory jurisdiction of High Court under — Nature and scope of: Supervisory jurisdiction of High Court under this section is confined only to see whether inferior court or tribunal has proceeded within the parameters of its jurisdiction. In exercise of jurisdiction under Art. 227, High Court does not act as an appellate court or tribunal and, therefore, cannot review or reassess the evidence upon which the inferior court or tribunal passed the order assailed before it. Thus, where trial court in the considered exercise of its jurisdiction under Or. 6 R. 17 CPC allowed amendment of written statement, interference with that order by High Court under Art. 227 entering upon merits of the case sought to be set up by appellant-defendant in amendment, held, was impermissible. [Raj Kumar Bhatia v. Subhash Chander Bhatia, (2018) 2 SCC 87]

Constitution of India — Arts. 21, 14, 15 and 32 — Gender equality and gender sensitivity: Ordinary criminal law proceeds on gender neutrality but concept of gender neutrality seems to be absent in S. 497 as prima facie a charge of adultery under S. 497 IPC cannot be brought against an erring woman but only against an erring man, when fact remains that both should have been liable for the criminal offence. Secondly, it is doubtful whether the erring woman should be presumed as a victim in all circumstances but such a presumption seems to have been there in S. 497 IPC on basis of which earlier judgments have upheld it. Thirdly, language of S. 497 IPC tantamounts to subordination of woman and affects her independent identity when offence thereunder is destroyed if consent or connivance of husband is established. Fourthly, time has come when society must realise that a woman is equal to a man in every field. S. 497 IPC prima facie seems to be quite archaic. In view of change in position and rights of women, validity of S. 497 IPC and S. 198(2) CrPC, though upheld by earlier judgments, requires reconsideration at present. [Joseph Shine v. Union of India, (2018) 2 SCC 189]

Contract and Specific Relief — Termination/Discharge of Contract — Termination/Repudiation for Breach of Contract: District Forum had not properly appreciated scope and ambit of insurance policy. Violation of carrying passengers in goods vehicles, has consistently been held not to be a fundamental breach. To avoid its liability, Insurance Company must not only establish defence that policy has been breached, but must also show that breach of policy is so fundamental in nature that it brings contract to an end. Driver giving a lift to some passengers may be a breach of policy, but it cannot be said to be such a fundamental breach as to bring insurance policy to an end and to terminate insurance policy. [Manjeet Singh v. National Insurance Co. Ltd., (2018) 2 SCC 108]

Criminal Procedure Code, 1973 — S. 91 — Summons to produce document or other thing: Invocation of S. 91 by accused, at the stage of framing of charge dehors satisfaction of court. For exercising such power, court has to be satisfied, that material available with investigator, not made part of charge-sheet has crucial bearing on issue of framing of charge. [Nitya Dharmananda v. Gopal Sheelum Reddy, (2018) 2 SCC 93]

Criminal Trial — Circumstantial Evidence — Inference of guilt — When can be drawn, in a case based on circumstantial evidence: In a case based on circumstantial evidence, circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. Those circumstances must be conclusive in nature unerringly pointing towards guilt of accused. Moreover, all circumstances taken cumulatively should form a complete chain and there should be no gap left in the chain of evidence. Further, proved circumstances must be consistent only with hypothesis of guilt of accused and totally inconsistent with his innocence. [State of H.P. v. Raj Kumar, (2018) 2 SCC 69]

Drugs and Cosmetics Act, 1940 — S. 26-A r/w S. 5 and Ss. 33, 33-EED and 33-N — Prohibition of certain fixed dose combinations (FDCs) by Central Government without prior consultation with Drugs Technical Advisory Board (DTAB) — Validity of: DTAB is only an advisory body and it would be desirable for the Central Government to take its advice on technical matters arising out of the administration of the Drugs Act, but this does not lead to the conclusion that if such advice is not taken, power under S. 26-A cannot be exercised. Further, S. 26-A was brought in by an amendment in 1982 which specifically made changes in Ss. 33 and 33-N and in which it added the words “on the recommendation of the Board”. However, S. 26-A does not refer to and, therefore, mandate any previous consultation with the DTAB. So long as the Central Government’s satisfaction can be said to be based on relevant material, it is not possible to say that not having consulted the DTAB, the power exercised under S. 26-A would be non est. [Union of India v. Pfizer Ltd., (2018) 2 SCC 39]

Environment Law — Development vis-à-vis Ecology: National, Urban and Rural Development — Urban Ecology/Green Areas/Belt/Town Planning/Urban Environmental Balance — Change in Land Use/Unauthorised Construction/Commercial/Industrial Establishments in Residential Premises: Sealing commenced pursuant to directions of Court. Appeals before statutory Appellate Tribunal were filed under Delhi Laws (Special Provisions) Act, 2006. IAs before Court were transferred to Appellate Tribunal. Where such IAs or appeals were not filed, 30 days’ time had been given to approach Appellate Tribunal. Regarding those who have not filed IAs, nor preferred appeal within 30 days like pesent applicants, authorities were directed to deseal residential premises of said applicants on certain terms and conditions (upon payment of costs imposed for delay in approaching Court). Further directed that if Monitoring Committee is satisfied, said premises can be desealed. If not, applicants directed to approach Supreme Court. Similar procedure to be followed for persons who have not yet approached Court or Appellate Tribunal. It was clarified that said order is only for premises sealed at the instance of Monitoring Committee. Further clarified that said relief and procedure is only for residential premises which were put to commercial non-industrial usage. [M.C. Mehta v. Union of India, (2018) 2 SCC 144]

Environment Law — Environmental Clearance/NOC/Environment Impact Assessment — Specific Clearances — Water/Coastal Areas — Housing project: When project was at first considered to be valid, later contradiction by authorities at a late stage, without credible evidence, held, not fair to DLF (builder) and impermissible. Such approach if permitted would cause grave uncertainty. Instead, direction of fine of Rs 1 crore with the direction for strict adherence to the norms in future and avoidance of such contradictions by the authorities, upheld. [Kerala State Coastal Management Authority v. DLF Universal Ltd., (2018) 2 SCC 203]

Family and Personal Laws — Guardians and Wards — Custody of Child/Minor — Visitation Rights: In this custody case of major daughter (18 yrs as on 19-9-2016) and minor son, lower court gave custody to father living in Kuwait and visitation rights to mother staying in Thiruvananthapuram. In appeal under Art. 136, parties agreed for said arrangement and court rejected mother’s claim for custody. As mother brought allegations of contempt, court directed personal presence of daughter and found that she wanted to pursue her studies in Kuwait. Contempt therefore, disposed of. Directions regarding visitation rights of minor son, issued. Father directed to pay Rs 50,000 to mother for every visit of minor son. It was clarified that when daughter attained 18 yrs, she has full freedom to make her choice which she openly declared in presence of court. [Soni Gerry v. Gerry Douglas, (2018) 2 SCC 197]

Government Contracts and Tenders — Judicial Review/Validity — Opinion of project owner/Experts on satisfaction of eligibility criteria — Relevance of — Judicial restraint: In the absence of any mala fides or perversity in the technical expert reports, any appreciation by the Court of technical evaluation would be outside its ken and best left to technical experts. [Sam Built Well (P) Ltd. v. Deepak Builders, (2018) 2 SCC 176]

Income Tax Act, 1961 — S. 80-IB — Benefit of deduction available for 10 yrs in respect of profit and gains of a small-scale industry — Denial of, for the years where such assessee/industry outgrows and ceases to be a smallscale industry: On analysing the scheme of S. 80-IB, held, each assessment year being a different assessment year, the incentive meant for small-scale industrial undertakings cannot be availed by industrial undertakings which do not continue as small-scale industrial undertakings during the relevant period. [CIT v. ACE Multi Axes Systems Ltd., (2018) 2 SCC 158]

Insurance — Generally — Underinsurance — Meaning and Effect of — Stated with illustrations: Insured had taken out insurance policy where insured valued items for sum which is less than actual value. This is normally done to pay lesser premium. Underinsurance is harmful to policy-holder and not to insurance company. If entire property underinsured is lost, policy-holder would get maximum sum for which that property was insured and nothing more. [I.C. Sharma v. Oriental Insurance Co. Ltd., (2018) 2 SCC 76]

Intellectual Property — Passing-off: Passing-off action for a mark having goodwill and reputation in jurisdictions other than India cannot be successfully maintained in the absence of such mark having sufficient goodwill or reputation in India. [Toyota Jidosha Kabushiki Kaisha v. Prius Auto Industries Ltd., (2018) 2 SCC 1]

Legal Metrology Act, 2009 — Ss. 2(r) & (l) — Sale of mineral water at a price in excess of MRP to customers in hotels and restaurants — Permissibility of: Definition of “sale” contained both in 1976 Act and in 2009 Act would go to show that composite indivisible agreements for supply of services and food and drinks would not come within the purview of either Act. Therefore, neither Standards of Weights and Measures Act, 1976 r/w 1985 Act, nor Legal Metrology Act, 2009, would apply so as to interdict the sale of mineral water in hotels and restaurants at prices above the MRP. [Federation of Hotel and Restaurant Assn. of India v. Union of India, (2018) 2 SCC 97]

Rent Control and Eviction — Arrears of Rent/Default/Tender of Rent/Striking off Defence — Arrears of rent: The tax recoverable from the tenant under S. 67(3) of the New Delhi Municipal Council Act, 1994 as arrears of rent by the landlord cannot be considered to be forming part of the rent for the purpose of seeking eviction/ejectment of the tenant who defaults in payment of such recoverable tax as rent. [Atma Ram Properties (P) Ltd. v. Oriental Insurance Co. Ltd., (2018) 2 SCC 27]

Rent Control and Eviction — Eviction petition/suit — Non-renewal of rent agreement, determination of tenancy and transfer of tenancy rights in violation of rent agreement — Proof — Nature of: For determination of tenancy and transfer of tenancy rights in violation of rent agreement, reliance on documents which were categorically denied by appellant landlord without further proof, not proper. [Syed Sugara Zaidi v. Laeeq Ahmad, (2018) 2 SCC 21]

Trade and Merchandise Marks Act, 1958 — Ss. 111/107 and Ss. 46/56 — Rectification proceedings under either set of provisions — Relative scope and manner of invocation of, explained in detail: If an aggrieved party does not approach the Tribunal for a decision on the issue of invalidity of registration as provided for under Ss. 111(2) and (3) r/w S. 107 of 1958 Act, the right to raise the issue (of invalidity of trade marks concerned) would no longer survive between the parties to enable the party concerned to seek enforcement of the same by recourse to or by a separate action under the provisions of Ss. 46/56 of the 1958 Act. Further, the right to raise the issue of invalidity is lost forever if the requisite action to move the High Court/IPAB (now) is not initiated within the statutorily prescribed time-frame. [Patel Field Marshal Agencies v. P.M. Diesels Ltd., (2018) 2 SCC 112]

Transfer of Property Act, 1882 — S. 54 — Agreement for sale/agreement to sell of immovable property: Unlike sale, agreement for sale/agreement to sell of immovable property, does not create any interest in favour of purchaser in respect of property. Hence it cannot be regarded as “transfer” within meaning of S. 48(d) of Maharashtra Cooperative Societies Act, 1960. [Balwant Vithal Kadam v. Sunil Baburaoi Kadam, (2018) 2 SCC 82]

Cases ReportedSupreme Court Cases

Arbitration and Conciliation Act, 1996 — S. 8 — Reference to arbitration in pending suit — Application under S. 8 of 1996 Arbitration Act — Maintainability: The Delhi Rent Act, which deals with the cases relating to rent and eviction, is a special Act. Though it contains a provision (Section 3) by virtue of which the provisions of the said Act do not apply to certain premises, but that does not mean that the Arbitration Act, ipso facto, would be applicable to such premises conferring jurisdiction on the arbitrator to decide the eviction/rent disputes. In such a situation, the rights of the parties and the demised premises would be governed by the Transfer of Property Act, 1882 and the civil suit would be triable by the civil court and not by the arbitrator. In other words, though by virtue of Section 3 of the Delhi Rent Act, the provisions of the said Act are not applicable to certain premises but no sooner the exemption is withdrawn or ceased to have its application to a particular premises, that Act becomes applicable to such premises. In this view of the matter, it cannot be contended that the provisions of the Arbitration Act would, therefore, apply to such premises. [Himangni Enterprises v. Kamaljeet Singh Ahluwalia, (2017) 10 SCC 706]

Constitution of India — Arts. 25, 26, 14, 17, 21, 38, 51-A(e) and 290-A — Sabarimala Temple: Matter regarding practice of not permitting women of age group of 10 to 50 yrs to enter or offer prayer in Sabarimala Temple, that is, women after menarche up to menopause on grounds: (a) that deity in Sabarimala Temple is a Naisthik Brahmachari, a Yogi, whose celibacy and austerity should not be affected by women of such age group, and (b) that worshippers visit temple after observing penance for 41 days and usually ladies of such age group will not be physically capable of observing “vratham” for 41 days due to biological factor of menstruation, referred to a larger Bench, five issues also formulated. [Indian Young Lawyers Assn. v. State of Kerala, (2017) 10 SCC 689]

Income Tax Act, 1961 — S. 115-O (as inserted by Finance Act, 1997) — Dividend declared, distributed or paid by a tea company, engaged in the business of growing green tea leaves in its tea gardens and manufacturing black tea out of the same — Taxability of: Levy of “additional income tax” under section 115-O, IT Act on “dividend” justified as “dividend” is income and tax thereon can be levied under Entry 82 of List I. [Union of India v. Tata Tea Co. Ltd., (2017) 10 SCC 764]

Land Acquisition Act, 1894 — S. 3(a) r/w S. 49: Acquisition of mere building/portion of a building, without the underlying land is possible and valid, even when the Government itself is the owner of the underlying land. [State of Maharashtra v. Reliance Industries Ltd., (2017) 10 SCC 713]

Maharashtra Control of Organised Crime Act, 1999 (30 of 1999) (as extended to NCT of Delhi) — Ss. 2(1)(d) & (1)(e), 1(2) and 3 — “Organised crime” — “Continuing unlawful activity” defined in S. 2(1)(d) for constituting offence as to — Requisites of: Invoking doctrine of territorial nexus in this case of organized crime and adopting construction in favour of advancement of object of statute concerned i.e. MCOCA, it was held that expression “competent court” in S. 2(1)(d) of MCOCA is not restricted to courts in Delhi alone. Perusal of chargesheets filed in competent courts in other State (i.e. State of U.P.) which were relied on by prosecution to prove commission of organised crime established clear nexus between those charge-sheets and State of NCT of Delhi where prosecution was launched under MCOCA. Hence it was held that those chargesheets could be taken into account for purpose of constituting “continuing unlawful activity” to prosecute accused persons under MCOCA at Delhi. Such prosecution could not be said to be invalid on ground of extra-territoriality. [State (NCT of Delhi) v. Brijesh Singh], 2017) 10 SCC 779]

Prisons, Prisoners and Probation of Offenders — Prison/Jail Reforms — Unnatural deaths in prisons: Directions issued for measures to be taken to prevent unnatural deaths in prisons, as far as possible and for proper implementation of Modern Prison Manual, 2016 and other guidelines and rules of Central Government and International Bodies. Suggestion was also given for establishment of open jails and use of phone and video confrencing for communication with family and lawyers. [Re-Inhuman Conditions In 1382 Prisons, In re, (2017) 10 SCC 658]

Cases ReportedSupreme Court Cases

Advocates Act, 1961 — S. 16 — Validity of: Validity of S. 16 Advocates Act, 1961, upheld. Uniform guidelines prescribed for Supreme Court and all High Courts as to procedure for designation of Senior Advocates. [Indira Jaising v. Supreme Court of India, (2017) 9 SCC 766]

Arbitration and Conciliation Act, 1996 — Ss. 11(6) & (6-A) — Appointment of arbitrators: Disputes arising out of distinct contracts for different works but pertaining to the same project/bid and between the same parties, cannot be dealt with by a composite reference/single Arbitral Tribunal. [Duro Felguera, S.A. v. Gangavaram Port Ltd., (2017) 9 SCC 729]

Civil Procedure Code, 1908 — S. 11 and Or. 1 R. 10 and Or. 22 — Res judicata — Applicability: First application under Or. 22 R. 4 dismissed without adjudication on merits, subsequent application under Or. 1 R. 10 not barred by res judicata. [Pankajbhai Rameshbhai Zalavadiya v. Jethabhai Kalabhai Zalavadiya, (2017) 9 SCC 700]

Civil Procedure Code, 1908 — S. 80 — Notice under: Requirement for instituting suit against Government or public officer, notice under Section 80 CPC is required. [Sant Prasad v. Kausla Nand Sinha, (2017) 9 SCC 655]

Constitution of India — Arts. 136 and 20(3) — Bail — Refusal to confess by accused as basis for allegation of non-cooperation by accused in investigation, for cancellation of bail: Right against self-incrimination is provided for in Art. 20(3), Constitution. Art. 20(3) is an essential safeguard in criminal procedure and is also meant to be a vital safeguard against torture and other coercive methods used by investigating authorities. Therefore, merely because appellant did not confess, it cannot be said that appellant was not cooperating with investigation. However, in case there is no cooperation on part of appellant for completion of investigation, it is open for respondent to seek for cancellation of bail. [Santosh v. State of Maharashtra, (2017) 9 SCC 714]

Constitution of India — Arts. 136 and 226 — Pendency/Delay in progress of proceedings: Directions for time-bound disposal of writ petitions beginning on a specific date and conclusion thereof within a certain period as directed. It was held that having regard to seriousness of matter, parties directed to appear before High Court on 31-10-2017, on which date, writ petitions to be posted as first item in High Court, to be finally heard and disposed of, in any case, within 10 days. Parties are free to mention before Supreme Court on 14-11-2017, in case writ petitions are not disposed of by High Court, as directed above. [Sudhakar Baburao Nangnure v. Noreshwar Raghunathrao Shende, (2017) 9 SCC 681]

Consumer Protection — Consumer Forums — Revision — Revision before National Commission — New plea in defence — Permissibility: Plea raised for first time before National Commission that space for sale concerned was a commercial space and, therefore, appellants were not consumers. [Kusum Agarwal v. Harsha Associates (P) Ltd., (2017) 9 SCC 806]

Consumer Protection — Services — Insurance — Theft of vehicle — Insurance claim for: Condition in insurance policy for owner to intimate insurer immediately after theft of vehicle should not bar settlement of genuine claims, when delay in intimation or submission of documents is due to unavoidable circumstances. Decision of insurer to reject claim has to be based on valid grounds. [Om Prakash v. Reliance General Insurance, (2017) 9 SCC 724]

Criminal Procedure Code, 1973 — S. 482 — Inherent powers of High Court under: Guiding principles which High Court should consider in determining whether to carry out quashment of FIR/complaint/criminal proceedings in exercise of such inherent jurisdiction, summarized. [Parbatbhai Aahir v. State of Gujarat, (2017) 9 SCC 641]

Education Law — Medical and Dental Colleges — Affiliation/Recognition — Derecognition/Cancellation/Withdrawal of — Renewal of permission for admitting students: In this case conditional Letter of Permission (LoP) for 2016-2017 (first batch of MBBS students) was issued on recommendations of Oversight Committee. Later, there was withdrawal of conditional LoP and direction was issued for encashment of bank guarantee of Rs 2 crores as Central Government found serious deficiencies even after rehearing pursuant to directions of Court in Modern Dental College & Research Centre, (2016) 7 SCC 353. Without going into merits and following precedents, students already admitted for first batch, that is, 2016-2017 not disturbed by the Supreme Court but prayer for admission of students for 2017-2018, rejected. However, application for renewal directed to be treated as application for 2018-2019. For this authorities directed not to encash bank guarantee and keep it alive and to conduct fresh assessment expeditiously for academic year 2018-2019. If bank guarantee already encashed pursuant to impugned order, it should be refunded and fresh bank guarantee be taken. [Advanced Medical & Educational Society v. Union of India, [(2017) 9 SCC 656]

Excise — Concession/Exemption/Incentive/Rebate/Subsidy — Exemption — Circular No. 495/61/99-CX.3 dt. 22-11-1999 — Perfumery compound used in manufacture of agarbathis — When is exigible to tax: Circular clarifying exigibility of perfumery compound, used in agarbathis could not be equated with that of an exemption notification but was required to be read within the limited scope of its context in which it was issued and the circular did not give exemption to products which were otherwise dutiable. [CCE & Service Tax v. Karnataka Soaps & Detergents Ltd., (2017) 9 SCC 718]

Income Tax Act, 1961 — S. 80-IA r/w S. 32 — Deductions under S. 80-IA — Mandatory reduction of, by the allowance of depreciation even when assessee does not claim depreciation under S. 32: Contrasting Ch. VI from Ch. IV of the Act where allowance of depreciation is linked to investment, it was held, that not only S. 80-IA is a code by itself, it contains the provision for special deduction which is linked to profits. Further, S. 80-IA of the Act not only contains substantive but procedural provisions for computation of special deduction. Thus, any device adopted to reduce or inflate the profits of eligible business has to be rejected. Therefore, it was mandatory to reduce deduction under S. 80-IA by way of depreciation. [Plastiblends India Ltd. v. CIT, (2017) 9 SCC 685]

Securities and Exchange Board of India Act, 1992 — S. 28-A r/w S. 220(2), Income Tax Act, 1961 and S. 4(1), Interest Act, 1978 — Interest on unpaid penalty and/or orders of disgorgement prior to 18-7-2013, i.e. date on which S. 28-A came into effect: Interest would be chargeable under S. 28-A r/w S. 220(2) of the Income Tax Act only prospectively, as levy of interest belongs to the realm of substantive law. However, the Interest Act of 1978 would enable Tribunals such as SAT to award interest from the date on which the cause of action arose till the date of commencement of proceedings for recovery of such interest in equity. [Dushyant N. Dalal v. SEBI, (2017) 9 SCC 660]

Cases ReportedSupreme Court Cases

Advocates — Disciplinary proceedings — Enquiry procedure — Principles of natural justice — Violation of: It was alleged that appellant advocates (brothers of respondent complainant) failed to maintain proper rental account of respondent and recording of finding of guilt on basis of evidence and affidavit filed by respondent complainant during enquiry without giving opportunity to appellants to cross-examine respondent and his witnesses, and relying on documents produced by him which were in vernacular language without providing translated copy thereof to appellants, Supreme Court held that since allegations made against appellants were serious and finding of guilt recorded against them inevitably had civil consequences, it is cardinal that they should have been allowed to cross-examine witnesses concerned. Not granting such opportunity, entails infraction of principles of natural justice, thus, vitiating enquiry procedure. However, instead of relegating parties to BCI for conducting fresh enquiry, considering that complaint was made in 1997 and that too by brother of appellants because of some family disputes and further that appellants had suffered ignominy due to pendency of enquiry against them including finding of guilt recorded by BCI, it is found prudent to give quietus to matter. [Palanisamy v. K. Dhanpalan, (2017) 4 SCC 713]

Arbitration and Conciliation Act, 1996 — Ss. 12(5) & 11(8) r/w Sch. 7 — “Neutrality of arbitrators” i.e. impartiality and independence of the arbitrators — Necessity of: S. 12 has been amended with the objective to induce neutrality of arbitrators and the amended provision enacted to identify the “circumstances” which give rise to “justifiable doubts” about the independence or impartiality of the arbitrator. An arbitrator has adjudicatory role to perform and, therefore, must be independent of parties as well as impartial. [Voestalpine Schienen Gmbh v. Delhi Metro Rail Corpn. Ltd., (2017) 4 SCC 665]

Armed Forces — Disability Pension — Entitlement to — Absence of disabilities or disease noted or recorded at time of entry into service of armed forces: Rejection of appellant’s claim for disability pension, who at time of entry into armed forces service was found fit, on basis of opinion of Medical Board, who though diagnosing appellant with acute schizophrenia like psychotic order and assessing his disability at 60% for life but opining that said disability was neither attributable nor aggravated by military service, not proper. Since it is undisputed that appellant was not suffering from any disease/disability at time of entering into military service, Medical Board should have called for his service record at time of joining military service before determining that disability was not attributable to military service. In absence of any evidence to show appellant was suffering from any such disease at time of entering military service, presumed that appellant was in sound mental condition at that time and deterioration of health had taken place due to military service. Hence, wife of appellant and other legal heirs entitled to disability pension. [Laxmanram Poonia v. Union of India,  (2017) 4 SCC 697]

Civil Procedure Code, 1908 — S. 114 & Or. 47 R. 1 — Review jurisdiction — Duty of courts, registries of courts, litigants and lawyers: Having regard to limited scope, review petition has to be expeditiously disposed of. Any time-frame cannot be fixed. It is duty of registry of High Courts to place review petition before Judge/Bench concerned so that such petition can be dealt with in quite promptitude. If notice required to be issued to opposite party, then specific date can be given so that on that day petition can be disposed of in accordance with law. Litigant cannot keep review petition defective as if a defective petition can be allowed to remain on life support, as per desire of litigant. If review petition is defective then it is duty of counsel for petitioner to remove such defects at the earliest. Defective matters can be placed before Judge/Bench concerned so that preemptory orders can be passed for removal of defects. Tactics of waiting for rejection of review petition and then challenge such orders in SLP after delay contending that petitioner was pursuing review before court cannot be adopted. Court registry required to be vigilant. [Sasi v. Aravindakshan Nair, (2017) 4 SCC 692]

Civil Procedure Code, 1908 — Ss. 92 and 115 — Object of S. 92 CPC — Leave of court to institute suit alleging breach of trust: “Trust” must have lawful purpose for which it is established. Trust can be created by virtue of a conditional gift. If leave granted by trial court by forming prima facie opinion about creation of trust, having regard to charitable purpose for which property is gifted and recitals in deed regarding administration of property, High Court in exercise of revisional power under S. 115 CPC is not justified in setting aside trial court’s order. [Swami Shivshankargiri Chella Swami v. Satya Gyan Niketan, (2017) 4 SCC 771]

J&K Contempt of Courts Act, 1997 (25 of 1997) — Ss. 10 and 15 — Reference to High Court — Locus standi — General contemptuous action: Report of Petitioner 2 published by Petitioner 1 levelling allegations of corruption against lower judiciary in State of J&K and contention was raised that only that particular court of which contempt was allegedly committed could make reference and not just any court, Supreme Court held that the same does not merit acceptance since S. 15(2) contemplates a situation where alleged contemptuous action is aimed at more than one court and in that eventuality any one of such courts can make reference to High Court. Where contemptuous action is of general nature, and not aimed at any specific Judges or courts, any of such Judges or court can make reference to High Court. [Transparency International India v. State of J&K, (2017) 4 SCC 748]

Land Acquisition Act, 1894 — Ss. 23 and 28 — Valuation of land — Factors — Lands identical and similar — Acquisition in adjacent villages: When inter se distance between two villages is not much, however, centre to centre distance between the two villages is less than half a kilometer. There was no reason for Reference Court to differentiate land of appellant landowners of acquired land, awarding lesser compensation. [Ali Mohammad Beigh v. State of J&K, (2017) 4 SCC 717]

Land Acquisition Act, 1894 — Ss. 3(b), 23 and 50 — Compensation — Determination of — Necessary and proper parties — Who are: Postacquisition allottee of land, neither necessary nor proper party, nor has any locus to be heard in matter of determination of compensation. [Satish Kumar Gupta v. State of Haryana, (2017) 4 SCC 760]

Motor Vehicles Act, 1988 — S. 166(3) [before and after its deletion] — Limitation period for filing claims provided for under S. 166(3) of 1988 Act and 110-A(3) of 1939 Act, finally done away with vide deletion of S. 166(3) of 1988 Act w.e.f. 14-11-1994 — Effect of: Deletion of S. 166(3) does not revive stale or dead claims. A claim raised before the Motor Accidents Claims Tribunal can be considered to be genuine, so long as it is a live and surviving claim. Individual concerned must approach the Tribunal within a reasonable time. Further, reasonability would depend on the facts and circumstances of each case. [Purohit & Co. v. Khatoonbee, (2017) 4 SCC 783]

Motor Vehicles Act, 1988 — Ss. 149 and 147 — Award passed against insured (owner) only: When death in the motor accident occurred due to rash and negligent driving of a private vehicle i.e. Tata Sumo and victims were travelling as “gratuitous passengers” in that vehicle, on these facts, exonerating the insurer of the offending vehicle, award passed by courts below only against the owner of the offending vehicle i.e. the person insured, in such a case, appellant claimants were entitled for an order against the insurer to pay the awarded sum to claimants and then to recover the said amount from the insured in the same proceedings as per the law laid down in para 26 of the judgment made in Saju P. Paul, (2013) 2 SCC 41. Since High Court erred in not passing such an order, its impugned order modified accordingly. Merely because compensation had not yet been paid to claimants though the case was quite old (i.e. 16 yrs old), was not a ground to deny said relief to claimants. Even the argument to deny that relief to claimants due to pendency of a reference in such matter before a larger Bench, was not sustainable in view of the fact that said matter had already been disposed of by keeping that issue undecided. [Manuara Khatun v. Rajesh Kumar Singh, (2017) 4 SCC 796]

Security Interest (Enforcement) Rules, 2002 — Rr. 8(6) and 9(1) — Notice to borrower regarding creditor’s intention to sell the asset and “public notice for sale”: It is permissible to simultaneously issue notice to the borrower about the intention to sell the secured assets and also to issue a public notice for sale of such secured asset by inviting tenders from the public or by holding public auction, the only restriction being to give thirty days’ time gap between such notice and the date of sale of the immovable secured asset. [Canara Bank v. M. Amarender Reddy, (2017) 4 SCC 735]

Transfer of Property Act, 1882 — S. 53-A — Protection available under S. 53-A to transferee — Availability of, even if suit for specific performance of agreement in favour of such transferee stands time-barred: Though mere expiry of the period of limitation for a suit for specific performance is not a bar for a person in possession of immovable property in part-performance of a contract for transfer thereof for consideration, to assert the shield of Section 53-A TPA, it is nevertheless imperative that to avail the benefit of such protection, all the essential prerequisites therefor have been complied with. [Vasanthi v. Venugopal, (2017) 4 SCC 723]

Case BriefsSupreme Court

Supreme Court: In an appeal filed by LexisNexis against the injunction granted by the Allahabad High Court on 1.4.2014 in favour of Eastern Book Company, a Bench of Ranjan Gogoi and R.V. Ramana, JJ disposed of the appeal by a short order in the following manner:

The appellants will be at liberty to publish, sell and distribute the raw judgments of the Supreme Court of India and other Courts obtained from whichever source along with their own head-notes, editorial notes, paraphrasing, explanatory notes, etc. as laid down in Eastern Book Company v. D.B. Modak, (2008) 1 SCC 1. [Relx India Pvt. Ltd. v. Eastern Book Company, (2017) 1 SCC 1.]

Pratibha M. Singh, Sr. Adv. and Mr. Vikas Mehta, Adv. appeared for the appellants  and K.V. Viswanathan, Sr. Adv., Anitha Shenoy, Adv., Mr. Harshavardhan Reddy, Adv. Ms. Srishti Agnihotri, Adv. Mr. Dhananjay Bhaskar Roy, Adv. Mr. Rajshekhar Rao, Adv. appeared for the Respondents.

The Supreme Court in Eastern Book Company v. D.B. Modak, (2008) 1 SCC 1 had granted copyright protection to Supreme Court Cases (SCC) in the following manner:

This extract is taken from Eastern Book Company v. D.B. Modak, (2008) 1 SCC 1 at pages 114-15

“61. However, the inputs put in the original text by the appellants in (i) segregating the existing paragraphs in the original text by breaking them into separate paragraphs; (ii) adding internal paragraph numbering within a judgment after providing uniform paragraph numbering to the multiple judgments; and (iii) indicating in the judgment the Judges who have dissented or concurred by introducing the phrases like “concurring”, “partly concurring”, “partly dissenting”, “dissenting”, “supplementing”, “majority expressing no opinion”, etc., have to be viewed in a different light. The task of paragraph numbering and internal referencing requires skill and judgment in great measure. The editor who inserts para numbering must know how legal argumentation and legal discourse is conducted and how a judgment of a court of law must read. Often legal arguments or conclusions are either clubbed into one paragraph in the original judgment or parts of the same argument are given in separate paragraphs. It requires judgment and the capacity for discernment for determining whether to carve out a separate paragraph from an existing paragraph in the original judgment or to club together separate paragraphs in the original judgment of the Court. Setting of paragraphs by the appellants of their own in the judgment entailed the exercise of the brain work, reading and understanding of subject of disputes, different issues involved, statutory provisions applicable and interpretation of the same and then dividing them in different paragraphs so that chain of thoughts and process of statement of facts and the application of law relevant to the topic discussed is not disturbed, would require full understanding of the entire subject of the judgment. Making paragraphs in a judgment could not be called a mechanical process. It requires careful consideration, discernment and choice and thus it can be called as a work of an author. Creation of paragraphs would obviously require extensive reading, careful study of subject and the exercise of judgment to make paragraph which has dealt with particular aspect of the case, and separating intermixing of a different subject. Creation of paragraphs by separating them from the passage would require knowledge, sound judgment and legal skill. In our opinion, this exercise and creation thereof has a flavour of minimum amount of creativity.

62. The said principle would also apply when the editor has put an input whereby different Judges’ opinion has been shown to have been dissenting or partly dissenting or concurring, etc. It also requires reading of the whole judgment and understanding the questions involved and thereafter finding out whether the Judges have disagreed or have the dissenting opinion or they are partially disagreeing and partially agreeing to the view on a particular law point or even on facts. In these inputs put in by the appellants in the judgments reported in SCC, the appellants have a copyright and nobody is permitted to utilise the same.

63. For the reasons stated in the aforesaid discussion, the appeals are partly allowed. The High Court has already granted interim relief to the appellant-plaintiffs by directing that though the respondent-defendants shall be entitled to sell their CD-ROMS with the text of the judgments of the Supreme Court along with their own headnotes, editorial notes, if any, they should not in any way copy the headnotes of the appellant-plaintiffs; and that the respondent-defendants shall also not copy the footnotes and editorial notes appearing in the journal of the appellant-plaintiffs. It is further directed by us that the respondent-defendants shall not use the paragraphs made by the appellants in their copy-edited version for internal references and their editor’s judgment regarding the opinions expressed by the Judges by using phrases like “concurring”, “partly dissenting”, etc. on the basis of reported judgments in SCC. The judgment of the High Court is modified to the extent that in addition to the interim relief already granted by the High Court, we have granted the abovementioned additional relief to the appellants.”

Upon scrutiny of the judgments in the LexisNexis database, copyright protected elements were found in the versions of judgments of the Supreme Court in LexisNexis.

Eastern Book Company sued LexisNexis and the District Judge, Lucknow confirmed the ad-interim injunction in these terms:

98. The application for temporary injunction moved by the plaintiffs is allowed and during the pendency of the Suit, the defendants, their assigns and business franchisees, licensees, distributors, agents etc. are retrained from infringing the copyrights in the literary work of the plaintiffs in their law report “Supreme Court Cases” (SCC) and from selling, distributing or otherwise making available to the public, either as CD ROms or through their websites on the Internet or through any tablet or by any other means, copies of its law reports and databases which infringe the copyrights of the plaintiffs in and to the law reports titled Supreme Court Cases (SCC).” [Eastern Book Company v. Reed Elsevier Pvt. Ltd., RS No. 134/2012 dated January 1, 2014]

This injunction was confirmed by a Division Bench of the Allahabad High Court on 1.4.2014 in these terms:

“In the light of the aforesaid judgment, we arrive at conclusion that the exercise and creation of minimum amount of creativity has to be viewed in the context of journals to journals published by the parties and in order to examine it several facts have to be considered by the trial court in the light of the evidences adduced by the parties during the course of the trial. Therefore, keeping in view the ingredients which are necessary to examine the case for the purpose of temporary injunction, we are of the view that at this stage the respondents/ plaintiffs had prima facie case in their favour to issue temporary injunction against the appellants/defendants so that skill applied by their editor in editing the journals should not be misused by the appellants/ defendants.

Thus, we are of the definite opinion that the learned trial court has correctly appreciated the application for temporary injunction filed by the respondents/ plaintiffs and allowed it which do not require interference by this Court.

However, the appellants are permitted to publish, sell and distribute through their websites and C.D.Rom/ DVD the judgments pronounced by the Hon’ble Supreme Court and other Courts but along with their head notes and editorial notes with all precautions as has been cautioned by the Hon’ble Supreme Court in Modak’s case ( supra).” [Reed Elsevier Pvt. Ltd. v. Eastern Book Company, FAFO 134 of 2014 decided on 1.4.2014]

Significantly, in furtherance of the above directions, the Supreme Court directed the expeditious disposal of the suit and vacated the bar against the contempt proceedings, pending against LexisNexis, before the District Court, Lucknow.

On an earlier date (25.10.2016) the Court had passed this order:

“The prayers made in IA Nos. 5 and 6 (filed by the appellants), in our considered view, ought not to be allowed at this stage inasmuch as the grounds in support of prayer ‘c’ of IA No. 5 on which notice has been issued have been urged before the learned trial Court and the appellate court. Therefore, consideration of the said grounds and any finding thereon to sustain the relief so as to prayer ‘c’ of I.A. No. 5 is concerned, was amount to pre-judging the appeal.

However, to avoid any prejudice and in view of the assurance given by the learned counsel  for both the sides that the matter can be disposed of within a short time frame, we order hearing of civil appeal on 23rd November, 2016. The trial court and the High Court of Allahabad will take into account the present order of this Court before deciding whether it should proceed with the contempt case(s) pending before it.” [Reed Elsevier India Pvt. Ltd. v. Eastern Book Company. 2016 SCC OnLine SC 1380, decided on 25.10.2016]

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