The Lawyer's Digest is a collection of concise summaries of all the judgments passed by the Supreme Court of India over the course of a month.
Topics have been sub-divided into areas of law including arbitration, criminal law, consumer law, service and administrative law, etc. for ease of reading.
Here are the summaries of judgments passed in August 2021.
In Gemini Bay Transcription Pvt. Ltd. v. Integrated Sales Service Ltd. & Anr., a Bench examined the six ingredients constituting a foreign award under Section 44 of the Arbitration and Conciliation Act 1996. In the case before it, the enforcement of the foreign award was inter alia resisted on the ground that a non-signatory was made party to the proceedings on the ground of the alter ego doctrine. Refusing to interfere, the Bench rejected the arguments as not permissible under the New York Convention and held that tort claims could be adjudicated by a tribunal if they arise in connection with the parties’ inter se agreement. The Bench also held that the arbitral tribunal could not be faulted for making a “guesstimate” on the quantum of damages when the award debtor made no effort to assist the tribunal in quantification. [Key Words: pro-enforcement bias, New York Convention, alter ego, corporate veil] [Coram: RF Nariman J., BR Gavai J.]
In Amazon.Com NV Investment Holdings LLC v. Future Retail Limited and Ors., an elaborate judgment, the Bench held that an award delivered by an Emergency Arbitrator under the SIAC Rules would be an order under Section 17(1) of the Arbitration and Conciliation Act 1996. The Bench further held that an order passed under Section 17(2) of the 1996 Act in enforcement of the emergency award is not appealable. [Key Words: 2015 Amendments, legislation by reference, legislation by incorporation, “as if”] [Coram: RF Nariman J., BR Gavai J.]
In Commissioner of Police v. Raj Kumar, the Supreme Court held that where applicants were exonerated or acquitted of offences for which they had been arrayed earlier, distinctions would be made between ‘clean’ acquittals and acquittals on the basis of benefit of doubt; candidates charged with grave offences involving moral turpitude and other offences; and on the basis of whether the applicant disclosed pending criminal cases. The Court held that courts exercising judicial review cannot second guess the suitability of an applicant for public office. Absent evidence of malice or mindlessness or illegality by the employer, there cannot be an intense scrutiny on the exclusion of applicants. [Key Words: appointment of constables of the Delhi police][Coram: KM Joseph, J., S Ravindra Bhat, J.]
In Lala @ Anurag Prakash Aasre v. State of Maharashtra and Ors., the challenge arose from the judgment passed by the High Court of Bombay upholding the conviction of the Appellant under Sections 302, 120B, 147, 148 and 324 of IPC. It was inter alia argued by the Appellant that the Appellant had not been named in the FIR and since the prosecution had not conducted a Test Identification Parade (TIP), the identity of the Appellant as a person involved in the crime, could not have been established.
Dismissing the appeal, the Court inter alia held that the statements recorded under Section 164 of the CrPC and supplementary statement under Section 161 of the CrPC by eye witnesses contained the description and name of the Appellant and held that in such a case, TIP was not necessary and did not vitiate the conviction. Thus, the Court held, that the identity of the Appellant as one of the attacking group members and his specific role in the assault was established beyond doubt. [Key Words: Sections 302, 120B, 147, 148 and 324 of IPC, necessity of test identification parade, statement of eyewitnesses] [Coram: SK Kaul, J., Hrishikesh Roy, J.]
In Saranya v. Bharathi and Anr., the challenge arose from the judgment passed by the High Court of Madras for quashing the entire criminal proceedings initiated against Respondent No. 1 for offences under Sections 420, 302 read with Section 109 IPC. The question inter alia before the Court was to determine if the High Court had the power to quash the entire criminal proceedings against the Respondent No. 1 at the initial stage of framing of charges against the Respondent No. 1. Allowing the appeal, the Court held that since there was ample material to show a prima facie case against the Respondent No. 1, the High Court had committed a grave error in quashing the entire criminal proceedings against the Respondent No. 1.
It was observed that at the preliminary stage of framing of charges against the Respondent No. 1, the High Court should not have appreciated the evidence to go into the merits of the accusations and ascertain the guilt or innocence of the Accused and was only required to evaluate the material and documents on record to ascertain if they disclose the existence of all the ingredients constituting the alleged offence or offences. [Key Words: framing of charges, quashing of criminal proceedings under Section 482 CrPC, Sections 420, 302 read with Section 109 IPC , grave error by High Court, prima facie case] [Coram: DY Chandrachud J., MR Shah, J.]
In Banka Sneha Sheela v. The State of Telangana & Ors., the Bench held that in the facts before it, at the highest, a possible apprehension of breach of law and order could be made out if the detenu was set free as he would continue to cheat gullible persons, however, such apprehension could be redressed through ordinary statutes and not preventive detention. The Court stated that preventive detention must be compliant with Article 21, Article 22 as also the concerned statute, and rejected the argument that a liberal meaning be given to “public order” when adjudicating over a preventive detention. The Bench further held that the public order complained of must “directly and inevitably lead to a harm, danger or alarm or feeling of insecurity among the general public or any section thereof at large”. [Key Words: Telangana Prevention of Dangerous Activities Act, Detention Order, ‘law and order’, ‘public order’, and ‘security of state’, preventive detention] [Coram: RF Nariman J., Hrishikesh Roy J.]
In Parubhai v. State of Maharashtra, the Bench overturned the High Court judgment convicting the appellant on preponderance of probability as opposed to beyond reasonable doubt. It reiterated that links in the chain of circumstances was necessary to be established for conviction on the basis of circumstantial evidence. Mere suspicion would not suffice and the circumstantial evidence ought to lead one to conclude “must be true” as opposed to “may be true”. The Bench held that the appellant could not be held guilty because she was unhurt and she did not go back inside the burning house to save others- an act requiring immense courage and compassion. In fact, it was observed, that if the appellant indeed wanted to murder the others, she would have locked the door after fleeing the burning house. [Key Words: Sharad Birdhichand Sarda (1984) 4 SCC 116] [Coram: Hemant Gupta J., AS Bopanna J.]
In Madhav v. State of Madhya Pradesh, the Bench severely criticised the investigation agency for “burying the truth”. It noted that the case before it was not one where the real culprit filed a First information report (FIR) to misdirect the investigation of an offence and it is only during the investigation that the case takes a “u-turn” and the informant faces charges. In the case before it, the Bench noted that that Investigating officer (IO) proceeded on the basis that the informants were culprits due to political pressure. Noting the divergent stances taken by the Supreme Court itself, the Bench noted that once the recovery is made pursuant to a disclosure statement made by the accused, the matching or nonmatching of blood groups loses significance. [Key Words: two FIRs in one crime, serologist, blood stain, blood-stained earth, R Shaji (2013) 14 SCC 266] [Coram: Indira Banerjee J., V Ramasubramanian J.]
In Sandeep v. State of Haryana and connected appeals, the Supreme Court first allowed the Review Petition challenging the earlier order of the Court whereby the Special Leave Petitions were dismissed. The Court granted the Appellants leave to appeal. However, the Court dismissed the appeals and upheld the order of conviction and sentence passed by the Trial Court which was upheld by the High Court. Altercations between family members residing adjacent to each other had led to a quarrel resulting in the death of the deceased due to firing by the Appellant.
The Trial Court had found all the accused guilty of the offences with which they were charged and, accordingly, convicted and sentenced all the accused, save for one, to life imprisonment for having committed offences under Sections 302 read with 34 IPC along with fine. The other accused was separately convicted under Section 25 of the Arms Act, 1959 and was awarded sentence of one year along with fine. The common appeal filed by the accused before the High Court was dismissed.
The Supreme Court held that the statements of the eyewitnesses were cogent and consistent with the FIR and Medical Report. Thus, it was beyond any doubt that the accused had fired the shot. The remaining three accused were held to have exhorted the accused to fire the deadly shot, on account of the personal and family enmity, however whilst giving two of the four remaining appellants the benefit of the doubt, the Court held that the involvement of the other two accused stood completely proved. Accordingly, the Court allowed two of the appeals, whist dismissing the remaining three. [Keywords: IPC, Section 302, Section 34, Arms Act 1959, Statement of eyewitnesses, Proved beyond reasonable doubt] [Coram: UU Lalit, J. & A Rastogi, J.]
In Hemraj Ratnakar Salian v. HDFC Bank Ltd, the Court held that where due to the lack of sufficient evidence, there is serious doubt as to the bona fide of the tenant, and the appellant is a tenant in sufferance, he would not be protected by the Rent Act and unless the secured creditor consents for renewal of tenancy, the tenant would not enjoy further rights to the property. [Key Words: mortgage, Section 13(2) and 17 of the SARFAESI Act 2002, non-performing assets, ][Coram: S Abdul Nazeer, J., Krishna Murari, J.]
In The State of Haryana & Ors. v. Raj Kumar @ Bittu and connected appeals an order of the High Court of Punjab & Haryana was assailed by which the High Court directed the State Government to consider the feasibility of granting a fresh policy regarding the grant of remission to prisoners particularly in respect of exercise of powers under Article 161 of the Constitution, and had further directed that such policy may have retrospective operation provided that it does not lead to discrimination among identically situated prisoners. Till such decision was taken, the High Court observed that the appropriate Government can exercise its powers under Section 432 and 433 of the CrPC under the extant policy which adhering to the restrictions imposed under Section 433A.
The issue before the Hon’ble Court was whether the policy dated 12.04.2008 or that dated 13.08.2008 would be applicable to the prisoner convicted on 25.03.2010. What was material for consideration was that the 04.02.1993 referred to exercise of powers under Article 161 whereas the subsequent policies dealt with the exercise of powers under the various sections of the CrPC. The Court referred to Maru Ram v. Union of India & Ors. in which the Supreme Court had held that the statutory powers conferred by Legislature were separate and could not supersede those conferred by the Constitution, however that did not preclude the States from adopting remission schemes which were fair and reasonable. The Court further observed that the power under Article 161 could be exercised by the State Governments and not by the Governor on his own- the advice of the appropriate Government binds the Head of the State and the policies of the State Government are composite policies encompassing both situations under Article 161 of the Constitution and Sections 432, 433 and 433-A of the Code. Remission granted under Article 161 of the Constitution will override Section 433-A of the Code, if the State Government decides to be governed of its constitutional power.
The Court held that a prisoner has to undergo a minimum period of imprisonment of 14 years without remission in the case of an offence, the conviction of which carries death sentence, to take benefit of policy of remission framed by an appropriate government under Section 432 of the Code in view of the overriding provision of Section 433-A, however, the power of the Hon’ble Governor to commute sentence or to pardon is independent of any such restriction or limitation notwithstanding Section 433-A. The Court opined that the policy dated 13.8.2008 is a statutory policy which has not taken over the discretion vested in the Governor to grant pardons, remissions or commute sentence in exercise of powers conferred under Article 161. To conclude, the Court held that the directions issued by the High Court were not sustainable for the reason that the policies had to be read keeping in view the period of imprisonment undergone by a prisoner.
The power of remission is to be exercised by the State Government, as an appropriate Government, if the prisoner has undergone 14 years of actual imprisonment in the cases falling within the scope of Section 433-A of the Code and in case the imprisonment is less than 14 years, the power of premature release can be exercised by the Hon’ble Governor though on the aid and advice of the State Government. As the prisoner had had completed 12 years and 25 days, under the policy he could only be considered for premature release upon the completion of 14 years, or could be considered under Article 161 only. [Keywords: CrPC Section 432, Section 433, Section 433A, Remission of sentence, Constitution of India, Article 161, Power of Governor to pardon] [Coram: Hemant Gupta, J. & AS Bopanna, J.]
In Kaptan Singh v. The State of Uttar Pradesh, the Court held that in a petition under Section 482 CrPC, if the proceedings were at the First Information Report (FIR) stage, then only the allegations in the FIR or complaint are to be considered. However, if statements had been recorded, evidence collected, and charge-sheet filed, Courts must consider the material or evidence collected during investigation. However, even at such a stage, Courts are not required to go into the merits of allegations as if they are exercising appellate jurisdiction. As the High Court failed to appreciate the evidence collected through investigation, the Court set aside the order of the High Court which quashed criminal proceedings. [Key Words: Sections 156, 482 CrPC, Sections 147, 148, 149, 406, 329 IPC, prima facie case of cognizable offence][Coram: DY Chandrachud, J. MR Shah, J.]
In Rahmat Khan @ Rammu Bismillah v. Deputy Commissioner of Police, the Court held that the drastic action of externment should be taken only in exceptional cases to maintain law and order in a locality and or prevent breach of public tranquility and peace. As it was patently clear that the impugned externment was retaliatory and vindictive for the appellant’s filing of complaints against government officials, the Court set aside the externment order. [Key Words: order of externment, Section 56(1)(a)(b) of the Maharashtra Police Act 1951, Madrasas, Dr Zakir Hussain Madrasa Adhunikikaran Yojana, ][Coram: Indira Banerjee, J., V Ramasaubramanian, J.]
In Harjit Singh v. Inderpreet Singh @ Inder and Anr., an appeal was preferred against grant of bail by the High Court for offences under Sections 302, 120B, 34, 201 IPC and Section 25 Arms Act 1959. Analysing the precedents on exercise of discretion in grant of bail or otherwise, from Gudikanti Narasimhulu (1978) 1 SCC 240 to Ramesh Bhavan Rathod v. Vishwanbhai Hirabhai Makwana (2021) 6 SCALE 41, the Court set aside the grant of bail to the accused by the High Court. In so deciding, the Court primarily took into consideration two factors; one, that the accused was hatching conspiracies with the other co-accused while in jail, and two, that when the accused was granted bail, he committed another offence and again went to jail. Thus, it was held that there was a high possibility of threat and danger to the life and safety of the complainant and his family members, if the accused continued to be on bail, and accordingly, the Court cancelled his bail. [Key Words: Bail, Arms Act, heinous offence, conspiracy from jail, exercise of discretion] [Coram: DY Chandrachud, J., MR Shah, J.]
In Manjeet Singh v. State of Haryana and Ors., the appeal arose out of an order confirming dismissal of an application under Section 319 CrPC. moved by the Appellant for summoning the private Respondents as additional accused in an FIR under Sections 302, 307, 341, 148 and 149 IPC. While allowing the appeal, the Court relied upon its own earlier judgment in Sartaj Singh (2021) 4 SCALE 227, wherein it had considered the law on the scope and ambit of Section 319 CrPC. and summarized the same as follows:
i. While exercising the powers under S. 319 CrPC and to summon the persons not charge-sheeted, the entire effort is not to allow the real perpetrator of an offence to get away unpunished;
ii. the law has been properly codified and modified by the legislature under the CrPC indicating as to how the courts should proceed to ultimately find out the truth so that the innocent does not get punished but at the same time, the guilty are brought to book under the law;
iii. where the investigating agency does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial;
iv. S. 319 CrPC allows the court to proceed against any person who is not an accused in a case before it;
v. the court is the sole repository of justice and a duty is cast upon it to uphold the rule of law and, therefore, it will be inappropriate to deny the existence of such powers with the courts;
vi. S. 319 CrPC is an enabling provision empowering the court to take appropriate steps for proceeding against any person not being an accused for also having committed the offence under trial;
vii. the power under S. 319(1) CrPC can be exercised at any stage after the charge-sheet is filed and before the pronouncement of judgment, except during the stage of Sections 207/208 CrPC, committal, etc. which is only a pretrial stage intended to put the process into motion;
viii. the court can exercise the power under S. 319 only after the trial proceeds and commences with the recording of the evidence;
ix. “evidence” in S. 319 means only such evidence as is made before court, in relation to statements, and produced before court, in relation to documents;
x. it is only such evidence that can be taken into account by the Magistrate or the court to decide whether the power under S. 319 CrPC is to be exercised or not;
xi. if the Magistrate is convinced even on the basis of evidence appearing in examination-in-chief, it can exercise the power under S. 319 CrPC;
xii. power under S. 319 CrPC can be exercised even at the stage of completion of examination-in-chief;
xiii. even in a case where the stage of giving opportunity to the complainant to file a protest petition has gone, the Court is still not powerless by virtue of S. 319 CrPC and even those persons named in FIR but not implicated in the charge-sheet can be summoned to face the trial, provided during the trial some evidence surfaces against the proposed accused;
xiv. while exercising the powers under S. 319, the Court is not justified in appreciating the evidence of the prosecution witnesses on merits; [Key Words: application seeking summoning, Section 319 Cr.P.C., protest petition, FIR, evidence] [Coram: DY Chandrachud, J., MR Shah, J.]
In Surajdeo Mahto and Anr. v. The State of Bihar, the challenge was to the order of conviction and sentence for offences, inter alia, under Section 302 read with Section 34, and 120B of the IPC, sentencing them to life imprisonment. Two issues arose. One, whether the circumstantial evidence led was so unimpeachable (sic) that it establishes the guilt of the appellants beyond any reasonable doubt, and two, whether Appellant No. 1 was a juvenile on the date of the occurrence. The Court held that in cases of circumstantial evidence, three factors need to be considered to arrive at the guilt of the appellants, i.e., (i) last seen theory (ii) motive, and (iii) false information provided and subsequent conduct of the appellant. It was held that in cases of overwhelming circumstantial evidence, proof of motive will be an important piece of corroborative evidence and will form a vital link in the chain of evidence.
On facts, the Court found that the Appellant No. 1 did not disclose the whereabouts of the deceased and then surreptitiously disappeared till he surrendered in court. However, there was no such allegation of being evasive against Appellant No. 2. Thus, while upholding the conviction of Appellant No. 1, the Court granted benefit of doubt to the Appellant No. 2. On the issue of juvenility, the Court held that the accused had not discharged the initial onus to produce cogent evidence to prima facie establish his juvenility, and thus, the plea was rejected. [Key Words: Power of Supreme Court under Article 136, circumstantial evidence, standard of proof, last seen theory, benefit of doubt, Juvenile Justice (Care and Protection of Children) Act, 2000] [Coram: NV Ramana, CJI, Surya Kant, J., Aniruddha Bose, J.]
In M/s Cheminova India Ltd. and Anr. v. State of Punjab and Anr., the appeal was against an order of the High Court dismissing the Petition under Section 482 CrPC. for quashing a complaint under Sections 3(k)(i), 17, 18 and 33 punishable under Section 29 of the Insecticides Act, 1968. In view of the undisputed fact that after drawing the sample from the dealer on 10.02.2011, report of analysis was received on 14.03.2011, the Court held that the complaint filed on 25.03.2014 was barred by limitation. Allowing such a complaint to proceed was held to be abuse of the process of law. In the connected appeal, considering the provision of Section 33 of the Insecticides Act, it was held that since all other nominated / responsible persons of the Company are already accused in the complaint, there was no basis to proceed against the Managing Director. The connected appeal was, thus, allowed to this limited extent. [Key Words: Insecticides Act, quashing, complaint, barred by limitation, abuse of the process of law, Section 482 CrPC] [Coram: Navin Sinha, J., R Subhash Reddy, J.]
In Suman Chadha and Anr. v. Central Bank of India, the Appellants, who were husband and wife, were held guilty of contempt of Court by the High Court, and sentenced to three months simple imprisonment along with a fine of ₹2,000/-. On principle, the Court held that while it was open to the Court to see whether the subsequent conduct of the alleged contemnor would tantamount to an aggravation of the contempt already committed, the very determination of an act of contempt cannot simply be based upon the subsequent conduct.
On facts, it was held that on account of the series of acts committed by the petitioners (i) in issuing post dated cheques, which were dated beyond the date within which they had agreed to make payment, (ii) in allowing those cheques to be dishonoured, (iii) in not appearing before the Court on the first day of hearing with an excuse that was found to be false, (iv) in coming up with an explanation about their own debtors committing defaults, and (v) in getting exposed through the report of the SFIO, the High Court had corrected held them guilty of contempt. In the facts of the case, the period of sentence was reduced to the period of custody already undergone, i.e., 11 days. [Key Words: Contempt of Court, breach of an undertaking, consent decree, subsequent conduct, post dated cheques] [Coram: Indira Banerjee, J., V Ramasubramanian, J.]
In Dena Bank (now Bank of Baroda) v. C. Shivakumar Reddy and Anr., the Court held that an application under Section 7 of the IBC would not be barred by limitation, on the ground that it has been filed beyond a period of three years from the date of declaration of the loan account of the Corporate Debtor as NPA, if there was an acknowledgement of the debt by the Corporate Debtor before expiry of the period of limitation of three years. In such a case, the period of limitation would get extended by a further period of three years. It was further held that a money decree in favour of the Financial Creditor would give rise to a fresh cause of action to initiate proceedings under Section 7 IBC for initiation of CIRP within three years from the date of such decree. It was lastly held that there was no bar in law to the amendment of pleadings in an application under Section 7 IBC, or to the filing of additional documents. [Key Words: Insolvency and Bankruptcy Code, acknowledgment of debt, fresh cause of action, Limitation Act, NPA, amendment of pleadings] [Coram: Indira Banerjee, J., V Ramasubramanian, J.]
In Kay Bouvet Engineering Ltd. v. Overseas Infrastructure Alliance (India) Private Limited, the Bench held that it in order to ascertain whether a dispute was in existence between a debtor and operational/financial creditor, it was “important to separate the grain from the chaff and to reject a spurious defence which is a mere bluster”. At the same time, it was cautioned that a Court was neither required to be satisfied as to whether the defense was likely to succeed, nor could it go into the merits of the dispute. It was only important for the Court to ascertain that a dispute truly existed and was not “spurious, hypothetical or illusory”. [Key Words: operational debt, financial debt, Moblix v. Kirusa (2018) 1 SCC 353, “existence”] [Coram: RF Nariman J., BR Gavai J.]
In Pratap Technocrats (P) Ltd. & Ors. v. Monitoring Committee of Reliance Infratel Limited & Anr., the Bench held that once the resolution plan had been approved by 100% voting share of the Committee of Creditors (CoC), it was immaterial whether or not some of the financial creditors were required to be excluded from the CoC. The jurisdiction of the Adjudicating Authority was confined by the provisions of Section 31(1) to determining whether the requirements of Section 30(2) have been fulfilled in the plan as approved by the CoC. [Key Words: UNCITRAL’s Legislative Guide on Insolvency Law, fair and equitable, Maneka Gandhi] [Coram: DY Chandrachud J., MR Shah J.]
In M.M. Aqua Technologies Ltd. v. Commissioner of Income Tax, Delhi-III and connected appeal pertained to a question which arose under Explanation 3C to Section 43B of the Income Tax Act, 1961. The appellant had claimed certain deductions under Section 43B based on the issue of debentures in lieu of interest accrued and payable to financial institutions. The Assessing Officer rejected the appellant’s contention, holding that the issuance of debentures was not as per the original terms and conditions on which the loans were granted, and that interest was payable, and that a subsequent change in the terms of the agreement would be contrary to Section 43B(d), and would render such amount ineligible for deduction. The Commissioner of Income Tax allowed the appeal holding that the issue of debentures in lieu of interest was effective discharge of the liability for the outstanding interest which was no longer payable by the appellant. The decision of the CIT was upheld by the Income Tax Appellate Tribunal.
The High Court allowed the appeal preferred by the Revenue, and held that the Appellant could not claim deduction under Section 43B, and the subsequent review petition. The Supreme Court opined that “sum payable” referred to in Section 43B(d) does not refer to the mode of payment, unlike Proviso 2 to the said Section, which was omitted by the Finance Act, 2003 w.e.f. 1st April, 2004. Furthermore, on facts, the Court held that both the CIT and the ITAT had found that as per a rehabilitation plan agreed to between the lender and the borrower, debentures were accepted by the financial institution in discharge of the debt on account of outstanding interest, and it was clear that interest was “actually paid” by means of issuance of debentures, which extinguished the liability to pay interest.
The Supreme Court further held that the High Court had erred in opining that Explanation 3C added a new condition retrospectively, as the said explanation was clarificatory in nature, and that the High Court had further erred in concluding that “interest” has been converted into a loan. The appeals were, accordingly, allowed. [Keywords: Income Tax Act, 1961, Section 43B, Explanatio3C, Whether interest actually paid, Issuance of Debentures] [Coram: R.F. Nariman, J. & B.R. Gavai, J.]
In Commissioner of Income Tax (Exemptions), Kolkata v. Batanagar Education And Research Trust, the Bench held that out of the donations received by the Trust by way of cheques, substantial amounts were ploughed back or returned to the donors in cash. Hence, on account of these sham donations, the Court held that the entity’s registration, conferred under Sections 12AA and 80G of the Income Tax Act 1961, ought to be revoked. [Key Words: charitable purposes] [Coram: UU Lalit J., Ajay Rastogi J.]
In Abdul Ahad v. Union of India, the Court held that while minority institutions were allowed to admit students of their community based on centralized counselling on the basis of NEET, they could not deviate from the principle of merit. Therefore, where students were admitted in violation of admission rules, such as in contravention of notifications prohibiting private counselling, the Court would not set aside orders of the MCI dismissing such students from their academic institutions. [Key Words: centralized counselling for admission to MBBS/BDS course in Uttar Pradesh, domicile reservation, private institutions, Medical Council of India][Coram: L Nageswara Rao, J., BR Gavai, J., Krishna Murari, J.]
In Devendra Pathak Sarvodaya College Of Education v. National Council For Teacher Education And Ors. and connected writ petitions the petitioner-colleges were granted recognition by the National Council for Technical Education (NCTE) for intake to the B.Ed. and D.El.Ed. courses being offered for the Academic Year 2022-2023. The petitioner-colleges had approached the Supreme Court seeking a direction to the respondents to grant recognition for Academic Year 2021-2022. It was contended that the petitioner had satisfied the authorities regarding their eligibility for recognition, including infrastructural requirements, which had been granted for the following Academic Year for no reason.
The respondents submitted that the time frame was prescribed taking into consideration the decision of the Supreme Court in Maa Vaishno Devi Mahila Mahavidyalaya v. State of Uttar Pradesh and others. However, the Court opined that once recognition had been granted on the basis of fulfilment of the stipulated criteria, the NCTE could not deny recognition for the Academic Year 2021-22. With regard to the timeline stipulated in Maa Vaishno Devi, the Court opined that such time frame had also been modified in a catena of cases. The petitions were, accordingly, allowed. [Keywords: National Council for Teacher Education Act 1993, Section 14(1), Grant of recognition to colleges] [Coram: RF Nariman, J. & BR Gavai, J.]
In Bhimrao Ramchandra Khalate (deceased) through LRs v. Nana Dinkar Yadav (Tanpura), the Court held that to determine whether a document was of conditional sale or mortgage, the intention of the parties was to be seen. Where the document was executed for the plaintiff to borrow money for household expenses and the defendant was bound to retransfer the land if the money, such document created a relationship of debtor and creditor. Therefore, the Court held that it was a document of mortgage. [Key Words: Transfer of Property Act 1882, whether document was of conditional sale or mortgage][Coram: Hemant Gupta, J., AS Bopanna, J.]
In Lachhmi Narain Singh (D) through LRs v. Sarjug Singh (D) through LRs, the Court held that where the High Court had erroneously concluded without any cross-examination of the objector’s witness, and that presumption of impersonation and incapability in such scenarios was invalid. Where the testator had affixed thumb impressions to all four deeds executed in his lifetime, adverse presumption that a deed bearing his thumb impression was not genuine was wrong, even if the testator was literate. [Key Words: revocation of will, probate, physical and mental capacity to execute cancellation deed, genuineness of thumb impression][Coram: SK Kaul, J., Hrishikesh Roy, J.]
In Gunasekaran v. The Divisional Engineer National Highways and Ors., the challenge arose from the show cause notices issued by the Respondents under Section 28(2)(ii) of the Tamil Nadu State Highway Act, 2001 (“State Act”) for their encroachment on the property used as a national highway. It was argued by the Petitioner that the State Act had become void since the enactment of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and thus, the authorities under the State Act did not have the jurisdiction to issue the show cause notices to the Petitioner.
Allowing the Petition, the Court held that the show cause notices should have been issued under Section 26 of the Control of National Highways (Land and Traffic) Act, 2002, as that provision specifically provided for the procedure and power for removing encroachment on National Highways by the state government. [Key Words: show cause notice, encroachment, national highway, jurisdiction to issue show cause notice, Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, Tamil Nadu State Highway Act, 2001, National Highways (Land and Traffic) Act, 2002] [Coram: KM Joseph, J., S Ravindra Bhat, J.]
In Narayan Deorao Javle v. Krishna, the Court held that as subsequent purchasers do not have to give notice to the mortgagee signifying purchase of the property by a mortgagor, the purchase and delivery of possession completed transfer of title. The Court reiterated that where the mortgagee, original mortgager and subsequent purchaser are residents of the same village, the factum of sale is deemed to be in notice of the mortgagee. [Key Words: suit for redemption of mortgage][Coram: Hemant Gupta, J., AS Bopanna, J.]
In Rajinder Kumar Bansal v. Municipal Committee, the Court held that the term ‘business’ in Section 2(f) did not have to be commercial business carried on with a profit motive but included charitable business or a dealing in the interest of public or a section of the public. Therefore, the use of such land as a club for a pavilion was a business and thus, an eviction petition was maintainable under the Haryana Urban (Control of Rent and Eviction) Act 1973. [Key Words: Section 2(f) of the Haryana Urban (Control of Rent and Eviction) Act 1973, order of ejectment, ][Coram: Hemant Gupta, J., AS Bopanna, J.]
In Krishna Gopal Tiwary v. Union of India, the Court held that where the Gratuity Act contemplated ₹10 lakhs payable one time, the cut-off date under the amendment act would not be retrospective or illegal. Therefore, the date of commencement of the Act by the executive would not be retrospective as the benefit of higher gratuity was available one time after the commencement of the amending act and was not exempt under Section 10(10)(ii) of the Income Tax Act. [Key Words: applicability of Payment of Gratuity (Amendment) Act 2010, Coal India Limited, tax deduction at source][Coram: Hemant Gupta, J., AS Bopanna, J.]
In Rajinder Goel v. High Court of Punjab and Haryana & Anr, the Bench held that in the absence of specific High Court Rules authorizing or empowering a Committee to act on behalf of the High Court, the decision made by the stated Committee could not be said to be binding on the Full Court. [Key Words: compulsory retirement, Rule 1 of Chapter III of Rules of Court 1952 of the Allahabad High Court] [Coram: UU Lalit J., Ajay Rastogi J.]
In Neelima Srivastava v. The State of Uttar Pradesh, the Court held that where the nature of appointment was irregular and not illegal, a rejection of the claim of such employee for regularization was patently erroneous. [Key Words: writ petition, appointment order, termination after refusal to rejoin, UP Secondary Education Department Regularization of Ad hoc appointments on the Post of Trained Graduate Teachers Rules, 2001][Coram: S Abdul Nazeer, J., Krishna Murari, J.]
In Praveen Kumar CP v. Kerala Public Service Commission, the Court held that where the appellants had participated in a selection process without objecting, they could not later question the eligibility criteria specified in the employment notification. Further, the Court also held that whether a governmental order would have prospective effect or relate back to an earlier date is to be determined on the text and tenor of the order. Where the orders were person specific and declared that their degrees were equivalent to the designated subject which formed part of the employment notification, the orders were clarificatory in nature and only recognized an existing state of affairs. [Key Words: eligibility criteria for appointment to the post of high school assistants, fufilment of eligibility criteria][Coram: L Nageswara Rao, J., Aniruddha Bose, J.]
In Anand Kumar Tiwari and Ors. v. High Court of Madhya Pradesh and Ors., the Petitioners inter alia challenged Rule 11 of the Madhya Pradesh Higher Judicial Services (Recruitment and Conditions of Service) Rules 2017 (“2017 Rules”), the amendment to Madhya Pradesh Uchchtar Nyayik Sewa (Bharti Tatha Seva Sharten) Niyam 1994 and the order dated 27.10.2015 passed by the High Court of Madhya Pradesh where the inter se seniority of directly recruited and promotee District Judges were determined through a Limited Competitive Examination ( “LCE”). The Petitioners were aggrieved by the seniority list where they were shown to be below the District Judges promoted through LCE in 2009. It was inter alia argued by the Petitioners that even though this Court had directed an amendment to be made to the seniority rule in 2002 itself, the same had only been given effect to in 2018 and thus, the Petitioners should not be punished for this inordinate delay and their seniority should be determined by giving retrospective effect to the 2017 Rules.
Dismissing the Petition, the Court inter alia held that the Petitioners were not entitled to the relief of the 2017 Rules being given retrospective effect since Rule 11 (1) of the 2017 Rules expressly stated that the relative seniority of members of service working on the date of commencement of the Rules, would not be affected by the amendment and the Petitioners could not claim for a reworking of their seniority only on the basis of the directions given by this Court. [Key Words: seniority list, limited competitive examination, direct recruitment and promote district judges, Madhya Pradesh Higher Judicial Services (Recruitment and Conditions of Service) Rules, 2017, Madhya Pradesh Uchchtar Nyayik Sewa (Bharti Tatha Seva Sharten) Niyam, 1994, retrospective effect] [Coram: L. Nageswara Rao, J., Aniruddha Bose, J.]
In North Delhi Municipal Corporation v. Dr. Ram Naresh Sharma & Ors. and connected appeals the Court dealt with whether ayurvedic doctors covered under AYUSH were also entitled to the benefit of enhanced superannuation age of 65 years, and were entitled to continue in service and receive remuneration therefor, like allopathic doctors. The Central Administrative Tribunal had found in favour of the doctors, and such decision had been upheld by the Delhi High Court. Vide order dated 31.05.2016 the MoH&FW enhanced the age of superannuation of the specialists of Nonteaching and public health subcadres of Central Health Scheme and General Duty Medical Officers (GDMOs) of CHS to 65 years. Such decision was adopted by the NDMC by issuing office order dated 30.06.2016 and enhancing the retirement age to 65 years for the Allopathic doctors working in the NDMC.
Thereafter, the MoH&FW issued an OM dated 30.08.2016 clarifying that the enhanced superannuation age was applicable to GDMOs of CHS i.e. allopathic doctors, and municipal corporations and others were given the liberty to take their own decision on the Ministry’s decision regarding enhancement of superannuation age. Thus, ayurvedic doctors were not seen to have been covered by the Ministry’s order dated 31.05.2016. Subsequently, other organisations also took decisions to enhance the age of superannuation, but it was contended that such decision did not apply to the doctors before the Court as such decisions to make the enhanced age applicable to the organisations to which they belonged was after they reached the age of superannuation. During the course of proceedings before the Tribunal and the High Court, the ayurvedic doctors were permitted to continue service under interim orders of the Court, however without any payment of salary.
The Supreme Court refuted the appellants contention that the respondent doctors were not entitled to remuneration and unpaid arrears. It was held that since it was undisputed that the respondent doctors had continuously served in hospitals till attaining the enhanced age of superannuation i.e. 65 years, the legal principle “Actus Curiae neminem gravabit" could not be the basis to deny salary and arrear benefits to respondents as the interim orders of the High Court had merged with the final order by which consequential benefits of employment were granted to the respondents. Similarly, the principle “no work for no pay“ was also held to be inapplicable as the Court opined that that denial of payment for service granted would be akin to forced labour.
Whilst opining that the contention of the appellants that classification of AYUSH doctors and doctors under CHS in different categories was reasonable and permissible in law, the Court agreed with the findings of the Tribunal and the High Court that the classification was discriminatory and unreasonable since doctors under both segments performed the same function. Accordingly, the appeals were dismissed and the appellants were directed to release doctors their due salary and benefits. [Keywords: Service Law, Constitution of India, Article 14, Article 21, Article 23, Intelligible Differentia, Age of Superannuation, Retrospective payment of salary] [Coram: L. Nageswara Rao, J. & Hrishikesh Roy, J.]
In The State of Uttar Pradesh & Ors. v. Uttam Singh the Supreme Court dismissed the appeal preferred against the judgment of the Division Bench of the Allahabad High Court, by which the respondent had been granted the benefit of compassionate appointment under the Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 on account of the respondent’s father having died in harness while working with the appellants. The appellants contended that the respondent’s father was not a regular employee, whereas the appellant relied upon the rule position to contend that his father had been in continuous service for more than 3 years and, accordingly, the benefit under the rule could be granted.
The fact that the appellants had transferred the respondent’s father between departments and had made him available for election work, both of which could only be done if he was a regular employee. In light of the fact that the appellants had granted others the benefit of the Rule, the Court also opined that it was “quite obvious that there is an discrimination against the respondent possibly arising from the previous litigation between the appellants and the deceased father of the respondent.” The Court dismissed the appeal and awarded the respondent costs throughout. [Keywords: Service Law, Compassionate Appointment, Discrimination, Regular Employee, Representation of the People Act, 1950, Section 159] [Coram: S.K. Kaul, J. & Hrishikesh Roy, J.]
In Multitask Solutions v. Zilla Parishad Washim, the Court held that where the appellant had not updated software and trained teachers (in accordance with the terms of the contract with the education department) due to a stay order of the High Court, proceedings could not be taken against the appellants. [Key Words: public interest, contractual obligation, e-tender, Sarva Siksha Abhiyan][Coram: Hemant Gupta, J., AS Bopanna, J.]
In Saurav Jain and Anr. v. M/s ABP Design and Anr., the plea arose out of a first appeal under Section 96 of the Code of Civil Procedure, 1908, whereby the High Court reversed the judgment of the Trial Court dismissing the suit instituted by the first respondent. On a preliminary question of permissibility to urge a new ground in the Special Leave Petition, the Court held that though, ordinarily, under Order 21 Rule 3(c) of the Supreme Court Rules, Special Leave Petitions are to be confined to the pleadings before the Courts below, if a plea raises a question of considerable importance, or of jurisdiction, the same can be entertained. The Appellant was, thus, permitted to raise the plea of lack of jurisdiction before the Supreme Court for the first time.
The Court held that the suit instituted by the first Respondent had to be dismissed, inter alia, since the Urban Land (Ceiling and Regulation) Act impliedly excludes the jurisdiction of the civil court on matters arising out of the ceiling proceedings. It was held that the first Respondent had artfully drafted the plaint to challenge the validity of the auction and sought an injunction and declaration, when the substantive cause of action of the suit arises out of the land ceiling proceedings. [Key Words: First Appeal, Section 96 CPC, Order XLI Rule 22 CPC, new grounds in appeal, pure question of law, land ceiling proceedings] [Coram: DY Chandrachud, J., MR Shah, J.]
In Rahul Mahanta v. Nirmalendu Saha, the Bench ruled that Order 7 Rule 11(d) would be inapplicable on the basis of the reliefs sought by the plaintiff in its civil suit inasmuch as the reliefs did not fall exclusively within the domain of the Guwahati Municipal Corporation Act 1971 so as to disentitle the Civil Court from entertaining the suit under Section 9 of the CPC. [Key Words: Guwahati Municipal Corporation Act 1971, nature of relief] [Coram: Hemant Gupta J., AS Bopanna J.]
In Srihari Hanumandas Totala v. Hemant Vithal Kamat and Ors., the appeal arose from an order passed under Order 7 Rule 11 of the CPC, on an application filed by the Appellant on the grounds of (i) non-payment of court fee, (ii) non-disclosure of cause of action, (iii) the suit being barred by res judicata. The said application was dismissed by the Trial Court. The High Court upheld the order of the Trial Court. The Supreme Court held that while deciding an application under Order 7 Rule 11, the Court must have due regard only to the statements in the plaint, and it is not open to decide the issue on the basis of any material including the written statement.
More specifically, it was held that to determine whether a suit was barred by res judicata, it is necessary that (i) the ‘previous suit’ is decided, (ii) the issues in the subsequent suit were directly and substantially in issue in the former suit, (iii) the former suit was between the same parties and (iv) that these issues were adjudicated and finally decided by a court competent to try the subsequent suit.
On facts, it was held that at the time of institution of the subsequent suit, no decree had been passed by the civil court, and thus, the issues raised had not been adjudicated upon. Accordingly, dismissal of the application under Order 7 Rule 11 was upheld by the Court. [Key Words: rejection of suit, statement in the plaint, res judicata, bona fide purchaser] [Coram: DY Chandrachud J., MR Shah, J.]
In National Insurance Company Ltd. v. M/s. Hareshwar Enterprises (P) Ltd. & Ors, the Bench held that the meaning of “cause of action” under the Consumer Protection Act 1986 was flexible and to be culled out of the bundle of facts. The Bench further held that the surveyor’s report was a perquisite and a vital piece of evidence, but it was not “sacrosanct” and could be rebutted by other evidence. [Key Words: normal bank rate, cause of action] [Coram: Hemant Gupta J., AS Bopanna J.]
In Brajesh Singh v. Sunil Arora and Ors., the Bench found various political parties in contempt of its earlier judgments and orders insofar as disclosure of candidates with criminal antecedents was concerned. The Bench passed a slew of measures in this regard. [Key Words: criminalization of politics] [Coram: RF Nariman J., BR Gavai J.]
In Davesh Nagalya (D) & Ors. v. Pradeep Kumar (D) Thr. Lrs. and Ors., the Bench held that since a partnership always comes to an end on the death of a partner as per Section 42(c) of the Partnership Act, hence the tenancy also ceased in view of Section 12 (2) of UP Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972. [Key Words: Kunhayammed and Others (2000) 6 SCC 359, review] [Coram: Hemant Gupta J., AS Bopanna J.]
In Neeraj Garg v. Sarita Rani and Ors. Etc., the case concerned the recording of some adverse remarks against by a Judge of the High Court against the counsel of one of the parties. The Bench, while expunging the remarks made against that advocate, stated that while it was fundamental, in the interest of justice, that Judges be allowed to discharge their functions freely and fearlessly and without interference by anyone, it was equally important for the Judges to be exercising restraint and avoid unnecessary remarks on the conduct of the counsel which may have no bearing on the adjudication of the dispute before the Court. [Key Words: audi alteram partem, expunction of remarks, Samya Sett (2005) 6 SCC 767] [RF Nariman J., Hrishikesh Roy J.]
In N.S. Nandiesha Reddy v. Kavitha Mahesh, this and connected appeals emanated from a challenge to an order passed by a Single Judge of the High Court of Karnataka whereby the appellant’s election to the Legislative Assembly was held to be void in terms of section 100(1)(c) of the Representation of the People Act 1951. Additionally, the High Court had directed that the appellant in the connected appeal, who was the Returning Officer in the concerned election, be proceeded against under Section 193 of the Indian Penal Code for giving false evidence before the Court in the hearing of the Election Petition.
The Court noted that the impugned order dated 01.06.2012 was immediately challenged and the Supreme Court had stayed its operation, and in the meanwhile, the term of the Assembly was completed in May, 2013. As the Appellant had completed the term for which he was elected the appeal was held to be infructuous. Insofar as the direction passed for the prosecution of the Returning Officer, the Court concluded that the High Court was not justified in opining that the evidence tendered was inconsistent, and that he should be prosecuted, as there were no findings regarding deliberate or intentional falsehoods.
The Court affirmed the legal position that “even in a case where the Court comes to the conclusion on the aspect of intentional false evidence, still the Court has to form an opinion whether it is expedient in the interest of justice to initiate an inquiry into the offences of false evidence, having regard to the overall factual matrix as well as the probable consequences of such prosecution.” Accordingly, the Court set aside the direction to register a complaint under Section 193 of the Indian Penal Code against the second appellant. [Keywords: CrPC, S. 30, Indian Penal Code, 1860, Section 193, The Representation of the People Act, 1951, Section 100] [Coram: NV Ramana, CJI, AS Bopanna, J. & Hrishikesh Roy, J.]
In Telangana State Wakf Board & Anr. v. Mohamed Muzafar the Court set aside the order of the High Court of Judicature at Hyderabad and restored judgment the of the Andhra Pradesh State Wakf Tribunal. The appellant-plaintiffs had filed the suit for eviction of the respondent-tenant from the suit property. One of the issues before the Tribunal was whether the suit property was wakf property. The Court opined that whenever such question arose the facts and circumstances of each case would have to be examined to determine whether jurisdiction fell within the purview of Sections 6 and 7 of the Waqf Act 1995, and that in the instant case the High Court erred that the suit was not maintainable before the Wakf Tribunal.
It further relied on its recent decision of 05.04.2021 in Kiran Devi v. Bihar State Sunni Wakf Board & Ors. to hold that the exercise of powers by the High Court under the proviso to section 83(9) of the Act were revisionary and the High Court did not act as an appellate court. The Appellant's appeal was allowed and the Respondents were granted three months’ time to vacate the suit property subject to paying arrears of rent. [Keywords: Waqf Act, 1995, Section 6, Section 7, Section 83, Section 85, High Court not Court of Appeal, Revisionary Power ] [Coram: Hemant Gupta, J. & AS Bopanna, J.]
In Pankaj Kumar v. State of Jharkhand & Ors., the Court set aside the order of the High Court of Jharkhand, holding that the majority (the High Court had held in favour of the respondents, 2:1) view was unsustainable. In doing so, the Supreme Court also held that the view taken in the minority judgment, i.e. that the Appellant(s) could claim the benefit of reservation in either of the successor States of Bihar or Jharkhand, could also not be agreed with in principle as that would defeat the mandate of Articles 341(1) and 342(2). The Appellants were born and/or residing in the territories which, after the Bihar Reorganisation Act 2000, fell within the State of Jharkhand. The appellants had sought public employment under the reserved category, resulting in the rejection/termination of employment on the basis that at the specified time, they had all been residents of the State of Bihar.
The Court, after considering the Constitutional scheme and objective of providing State-wise reservation, noted that Sections 23 and 24 of the Reorganization Act, 2000 amended the Presidential Order 1950 notifying the castes/tribes notified for the State of Jharkhand, and after the amendment, the castes/tribes/OBC with the same nomenclature and geographical conditions, located in the successor State of Jharkhand by virtue of Section 3 of the Act 2000 became applicable to the residents of the successor State. The Court reiterated the law settled by the Constitution Bench that on migration to another State, whether voluntarily or involuntarily, a person will not be entitled to claim benefits of reservation even though, the caste or tribe of the same nomenclature is notified in the migrated State and if that is permitted, the expression in Articles 341(1) and 342(1) of the Constitution in “relation to the State” would become otiose.
However, the Court accepted the Appellants’ contention that the instant case was not one of migration from one State to another, but was one where the State of Bihar had been bifurcated and that under Section 73 read with Section 74 of the Reorganization Act, 2000 the appellants were ordinary residents of the State of Jharkhand. Accordingly, the appeals were allowed. [Keywords: Service Law, Employment, Entitlement to State Reservation, Domicile, Bihar Reorganization Act 2000, Constitution of India, Article 341, Migration of Labour, Constitution(Scheduled Castes)/(Scheduled Tribes) Order 1950] [Coram: U.U. Lalit, J. & A. Rastogi, J.]
In Union of India & Anr. v. S. Narasimhulu Naidu (Dead) Through LRs. and Ors., the Court allowed the appeal and set aside the order of the High Court which had upheld the order passed by the Special Court, Hyderabad constituted under the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982. The issue in question was whether the finding of the trial Court in the first round of litigation, that predecessor-in-interest of the Respondents was the owner of a portion of the parcel of land in question, would operate as res judicata as regards the remaining portion of such parcel of land.
The Court opined that the Respondents, who were the defendants in the original litigation, had not filed any counter claim to assert title or possession over the land in question, and the issue was limited to the portion of the entire parcel of land which was in question in the first suit. Thereafter, the entire basis of the second suit was the findings returned in the first suit and no independent evidence produced in respect of purchase of land by the predecessor-in-interest of the Respondents was adduced. After relying on several judgments which expound the principle of res judicata, the Court opined that the respondents had not claimed any title to the land which was claimed to be in their possession and the land which was the subject matter of the first suit was only a portion of the entire parcel of land.
Hence, the decree passed in the previous round of litigations was binding qua the land in such suit only and not the entire parcel of land. It was concluded that the respondents had not proved the title so as to claim a rightful title over the land in question. In light of the above, the Court held that the High Court had erred, and the transfer of title in favour of the Appellants was complete when the possession of the land was delivered, and that the Appellants are the owners and in possession of the suit land.
In light of the same, the appeal was allowed. [Keywords: Res Judicata, Constructive Res Judicate, Exp IV Sec. 11 of CPC, Adverse Possession, Sale of land, Portion of land sold, Ownership of remaining portion, Government Grants Act, 1895- Section 2, Transfer of Property Act 1882, Evidence Act 1872 Section 74] [Coram: SK Kaul, J. & Hemant Gupta, J.]
About the authors: Subhro Prokas Mukherjee, Tanveer Oberoi and Sahil Tagotra are advocates practicing in Delhi. Abhinav Hansaraman works with a law firm in Bombay. Rukmini Mukherjee works with a firm in Bombay.
The views expressed in this article are personal.