The Lawyer's Digest: Supreme Court Judgments passed in December 2020

A summary of Judgments passed by the Supreme Court in December, 2020.
The Lawyer's Digest: Supreme Court Judgments passed in December 2020
Supreme Court Lawyers Digest

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 December 2020.

ARBITRATION

In Anglo American Metallurgical Coal Pty Ltd. v. MMTC Ltd., the appellant was aggrieved by the judgment of a Division Bench of the High Court, which set aside the majority Award in the arbitration, and the Singe Judge’s judgment dismissing the Respondent’s application under Section 34 of the Arbitration and Conciliation Act 1996. The Court, after considering the evidence on record, concluded that the majority Award has come to a possible view in respect of breach and the quantum of damages. The Court held that the Division Bench of the High Court had erred in cherry-picking emails instead of reading the correspondence as a whole to say there was no evidence. The Court cited with approval the judgment in Zurich Insurance (Singapore) Pte Ltd v B-Gold Interior Design and Construction Pte Ltd, [2008] SGCA 27 to state the modern contextual approach to the interpretation of contracts. The Court read the proviso (6) and illustration (f) to Section 92, Section 94 and Section 95 of the Evidence Act 1872 to state that when a number of documents are exchanged in the performance of a contract, all must be read as a connected whole, relating each document to “existing facts”, including how particular words are used in a particular sense. Noting that the Award was passed in an international commercial arbitration prior to the 2015 amendment to the Arbitration and Conciliation Act 1996, the Court considered the case in light of its decision in Associate Builders (2015) 3 SCC 49 to state that grounds for setting aside the Award on it being against the fundamental policy of Indian law or patently illegal were not made out. Further, since the majority Award is a possible view based on the evidence led in the case, it cannot be said to be either perverse or as being based on no evidence. Thus, the Court allowed the appeal and restored the majority Award and the judgment of the Single Judge dismissing the application under Section 34 of the Arbitration Act. [Key Words: Section 92, Section 94 and Section 95 of the Evidence Act 1872, correspondence to be read as a whole, contextual interpretation of contracts, possible view] [Coram: R.F. Nariman, J., K.M. Joseph, J.]

In Suresh Shah v. Hipad Technology India Private Limited, a petition had been filed under Section 11(5) of the Arbitration and Conciliation Act 1996 seeking the appointment of a Sole Arbitrator for a dispute relating to a sub-lease. The Court held that where the petitioner was a Kenyan National habitually resident in Kenya, then such a dispute would be an international commercial arbitration under Section 2(f) of the Act and thus the appointing authority should be the Supreme Court under Section 11(6) of the Act and not High Courts under Section 11(5). Relying on Himangni Enterprises (2017) 10 SCC 706, the Court held that when the parties in a contract of lease have agreed upon arbitration, the parties may arbitrate and that Sections 114 and 114A of the Transfer of Property Act could be considered by the arbitrator and that such notice may be taken where the landlord has sought for an award of ejectment on the ground that the lease has been forfeited since the tenant has failed to pay the rent. However, the Court held that disputes arising under the rent Acts would not be arbitrable, as they are governed by a special statute which provide statutory protection against eviction. [Key Words: Absolute Long-term leasehold right of land and building, appointment of arbitrator, arbitrability of dispute relating to lease/ tenancy agreements, Vidya Drolia] [Coram: S.A. Bobde, CJI, AS Bopanna, J., V. Ramasubramanian, J.]

In Vidya Drolia & Ors v. Durga Trading Corporation, the Supreme Court rendered two opinions: the leading opinion spanning 152 pages by Khanna, J., and the concurring opinion by Ramana, J. spanning 91 pages on two questions:

i. To what extent does the Court decide the question of non-arbitrability under Section 11 of the Arbitration and Conciliation Act 1996?

ii. Whether tenancy disputes are capable of being resolved through arbitration?

Khanna, J., proposed a four-fold test (although caveated as being only determinative and not “watertight”) for determining whether the subject matter of the dispute was arbitrable:

i. when the cause of action and subject matter of the dispute relates to actions in rem, that do not pertain to subordinate rights in personam that arise from rights in rem.

ii. when the cause of action and subject matter of the dispute affects third party rights; have erga omnes effect; require centralized adjudication, and mutual adjudication would not be appropriate and enforceable;

iii. when the cause of action and subject matter of the dispute relates to inalienable sovereign and public interest functions of the State and hence mutual adjudication would be unenforceable; and

iv. when the subject-matter of the dispute is expressly or by necessary implication non-arbitrable as per mandatory statute(s).

Khanna, J., also went on to hold that the expression ‘“existence of an arbitration agreement” in Section 11 of the Arbitration Act, would include aspect of validity of an arbitration agreement, albeit the court at the referral stage would apply the prima facie test on the basis of principles set out in this judgment. In cases of debatable and disputable facts, and good reasonable arguable case, etc., the court would force the parties to abide by the arbitration agreement as the arbitral tribunal has primary jurisdiction and authority to decide the disputes including the question of jurisdiction and non-arbitrability.”.

As regards “Who decides Arbitrability?”, Khanna, J., summed up the discussion as under:

“(a) Ratio of the decision in Patel Engineering Ltd. on the scope of judicial review by the court while deciding an application under Sections 8 or 11 of the Arbitration Act, post the amendments by Act 3 of 2016 (with retrospective effect from 23.10.2015) and even post the amendments vide Act 33 of 2019 (with effect from 09.08.2019), is no longer applicable.

(b) Scope of judicial review and jurisdiction of the court under Section 8 and 11 of the Arbitration Act is identical but extremely limited and restricted.

(c) The general rule and principle, in view of the legislative mandate clear from Act 3 of 2016 and Act 33 of 2019, and the principle of severability and competence-competence, is that the arbitral tribunal is the preferred first authority to determine and decide all questions of non-arbitrability. The court has been conferred power of “second look” on aspects of non-arbitrability post the award in terms of sub-clauses (i), (ii) or (iv) of Section 34(2)(a) or sub-clause (i) of Section 34(2)(b) of the Arbitration Act.

(d) Rarely as a demurrer the court may interfere at the Section 8 or 11 stage when it is manifestly and ex facie certain that the arbitration agreement is non-existent, invalid or the disputes are non-arbitrable, though the nature and facet of non-arbitrability would, to some extent, determine the level and nature of judicial scrutiny. The restricted and limited review is to check and protect parties from being forced to arbitrate when the matter is demonstrably ‘non-arbitrable’ and to cut off the deadwood. The court by default would refer the matter when contentions relating to non-arbitrability are plainly arguable; when consideration in summary proceedings would be insufficient and inconclusive; when facts are contested; when the party opposing arbitration adopts delaying tactics or impairs conduct of arbitration proceedings. This is not the stage for the court to enter into a mini trial or elaborate review so as to usurp the jurisdiction of the arbitral tribunal but to affirm and uphold integrity and efficacy of arbitration as an alternative dispute resolution mechanism.”

In his concurring opinion, Ramana J., held as follows:

i. The judgment in SBP v. Patel Engineer Ltd. and Another (2005) 8 SCC 618 was “heavily caught in the obfuscated concept of judicial or administrative duty, and there is scarce observation on the appropriate standards of judicial enquiry or what aspects does the Court need to consider, while referring a matter to arbitration

ii. The following rules governed Section 11 of the 1996 Act:

(a) Reference power under Section 11 of the Act is judicial and not administrative.

(b) There was a wide discretion for judicial interference at the stage of reference under Section 11 of the Act, prior to the Arbitration Amendment Act of 2015.

(c) Amendment in 2015 was brought into force to limit the power of judicial interference under Section 11 of the Act.

iii. The following conclusions could be drawn from the study of subject-matter arbitrability under Section 8 or Section 11 of the 1996 Act:

“…(a) In line with the categories laid down by the earlier judgment of Boghara Polyfab, the Courts were examining ‘subject matter arbitrability’ at the pre arbitral stage, prior to the 2015 amendment.

(b) Post the 2015 amendment, judicial interference at the reference stage has been substantially curtailed.

(c) Although subject matter arbitrability and public policy objections are provided separately under Section 34 of the Act, the Courts herein have understood the same to be interchangeable under the Act. Further, subject matter arbitrability is interlinked with in rem rights.

(d) There are special classes of rights and privileges, which enure to the benefit of a citizen, by virtue of constitutional or legislative instrument, which may affect the arbitrability of a subject matter…”

iv. The answer to the first question could be summarised as under:

a. Sections 8 and 11 of the Act have the same ambit with respect to judicial interference.

b. Usually, subject matter arbitrability cannot be decided at the stage of Sections 8 or 11 of the Act, unless it’s a clear case of deadwood.

c. The Court, under Sections 8 and 11, has to refer a matter to arbitration or to appoint an arbitrator, as the case may be, unless a party has established a prima facie (summary findings) case of nonexistence of valid arbitration agreement, by summarily portraying a strong case that he is entitled to such a finding.

d. The Court should refer a matter if the validity of the arbitration agreement cannot be determined on a prima facie basis, as laid down above, i.e., ‘when in doubt, do refer’.

e. The scope of the Court to examine the prima facie validity of an arbitration agreement includes only:

1. Whether the arbitration agreement was in writing? or

2. Whether the arbitration agreement was contained in exchange of letters, telecommunication etc?

3. Whether the core contractual ingredients qua the arbitration agreement were fulfilled?

4. On rare occasions, whether the subject matter of dispute is arbitrable?

[Key Words: erga omnes, principles of separability and competence-competence, in rem, in personam, 246th Law Commission Report] [Coram: N.V. Ramana, J., Sanjiv Khanna, J., Krishna Murari, J.]

CRIMINAL LAW

In Paramvir Singh Saini v. Baljit Singh and Ors., the Bench noted that it had, in Shafhi Mohammad (2018) 5 SCC 311, directed that a Central Oversight Body be set up by the MHA to implement the plan of action with respect to the use of videography in the crime scene during the investigation. In Shafhi Mohammad, the Court had considered its own directions in DK Basu (2015) 8 SCC 744 and noted that there “was a need for further directions that in every State an oversight mechanism be created whereby an independent committee can study the CCTV camera footages and periodically publish a report of its observations thereon. The COB was further directed to issue appropriate instructions in this regard at the earliest.” Further, in the present case, the Court had directed the various state respondents to furnish information as to the “exact position of CCTV cameras qua each Police Station as well as the constitution of Oversight Committees”. Lamenting the quality of the Action Taken Reports and affidavits filed by the States and the Union, the Bench

1. Prescribed the composition of the State Level Oversight Committee and District Level Oversight Committee.

2. Listed the obligations and duties of the SLOC and DLOC as regards maintenance and running of the CCTVs to be installed in the police stations.

3. Directed that the Finance Departments of the States and Union Territories immediately allocate the necessary funds.

4. Directed that the SHO of every police station be held responsible for the functioning of the CCTVs, data maintenance etc. and be accountable to remote information of a CCTV malfunction immediately to the DLOC.

5. Directed that each space of the police station (barring the interior of the washrooms) be covered by CCTV.

6. Directed that all CCTVs must be equipped with audio, video, night vision and data ought to be preserved for at least 12 months, and then 18 months.

7. Directed that Human Rights Courts be set up under Section 30 of the Protection of Human Rights Act 1993 in every district.

8. Directed that the Union set up the CCTV system in the offices of the NIA, ED, CBI, NCB, SFIO and any other agency which has the powers of arrest.

9. Directed that the SLOC and DLOC be directed to inform the visitors of the CCTV footage by way of posters in English, Hindi and vernacular languages in the police stations as also the allied offices like CBI, SFIO etc. [Key Words: Human Rights Courts, DK Basu, Article 221, Section 161(3) CrPC] [Coram: R.F. Nariman, J., K.M. Joseph, J., Aniruddha Bose, J.]

In Rohtas and Anr. v. State of Haryana, it was reiterated that under Sections 211 to 224 and Section 486 of the CrPC, Courts were free to weigh the evidence and determine whether an independent conviction is possible in cases a group prosecution under Section 149 IPC fails. The only consideration was to ascertain as to whether alteration of charge would prejudice the accused inasmuch as s/he would be taken by surprise or if the belated change would affect the defence strategy. Further, the Court held that though it was ideal that independent witnesses came forward to substantiate the prosecution case but it would be unfair to expect the presence of third parties in every case at the time of incident as most violent crimes are seldom anticipated [Key Words: Sections 307 and 148 of the Indian Penal Code 1860, misplaced sympathy, minimum number of people to constitute unlawful assembly, alteration of charge] [Coram: NV Ramana, J., Surya Kant, J., Aniruddha Bose, J.]

In Sandeep Kumar and Ors. v. State of Uttarakhand and Anr., the Bench reiterated that the appellate courts ought to be circumspect in observing the self-imposed judicial restraints when interfering with findings of acquittal. Following Anant Chintaman Lagu AIR 1960 SC 500 and Sharad Birdhichand Sarda (1984) 4 SCC 116, it was held, on facts, that the ingredients justifying conviction on the basis of poisoning were not satisfied. The ingredients were:

1. Death took place on account of poisoning

2. The accused had the poison in his possession

3. The accused had an opportunity to administer the poison

The Bench reiterated that the ingredients of Section 304B were: a marriage performed within 7 years before the wife’s death, an unnatural death, the deceased wife must have been at the receiving end of cruelty or harassment on account of demand for dowry soon before the death. [Key Words: Tuberculosis, poisoning, Ghure Lal (2008) 10 SCC 450] [Coram: RF Nariman, J., KM Joseph, J., Aniruddha Bose, J.]

In Amar Nath Chaubey v. Union of India and Ors., the Court held that while police investigations cannot be interfered with, but if the police does not perform its duty in accordance with the law, the Court has a constitutional obligation to ensure that the investigation is conducted in accordance with the law. The Court thus stayed further trial, set aside proceedings against non-charge sheeted accused and appointed a senior officer to carry out further investigation. [Key Words: Section 120B IPC, Progress Report] [Coram: RF Nariman, J., Navin Sinha, J., Krishna Murari, J.]

In Sanjai Tiwari v. The State of Uttar Pradesh and Anr., relying on Janata Dal (1993) 1 SCC 756, the Court held that it is for the parties in a criminal case to challenge proceedings initiated against them and third parties may not do so under the garb of PILs and thus dismissed an appeal filed by a third party under Section 482, CrPC. [Key Words: Sections 420, 467 468, 471, 477A, 120B IPC; Section 13(1) Prevention of Corruption Act 1988, Vigilance Enquiry, Public Interest Litigations/Litigants] [Coram: Ashok Bhushan, J., R Subhash Reddy, J., MR Shah, J.]

In Seelan @ Jeyaseelan v. The Inspector of Police, the Court held that in a matter involving the rape of a minor, as the incident had taken place 20 years ago and as the State had not filed an appeal, the Special Leave Petition was liable to be dismissed. [Key Words: Sections 376(1) and 376(2) IPC] [Coram: RF Nariman, J., Navin Sinha, J., KM Joseph, J.]

In Sumedh Singh Saini v. State of Punjab and Anr., the Court held that considering the fact that the impugned FIR was lodged/filed by the brother of the deceased after a period of almost 29 years from the date of incident and after a period of 9 years from the date of decision of this Court in the case of Davinder Pal Singh Bhullar (2011) 14 SCC 770, nothing indicated that the informant had taken any steps to initiate criminal proceedings and/or lodged an FIR. Thus, a ground for anticipatory bail was made out. [Key Words: delay, anticipatory bail] [Coram: Ashok Bhushan, J., R. Subhash Reddy, J., M.R. Shah. J]

In Amish Devgan v. Union of India and Others, the Bench declined to quash the FIRs against the accused but granted interim protection against arrest subject to his joining/cooperating with the investigation. All pending FIRs were transferred to Ajmer i.e. where the first FIR was registered with the subsequent FIRs being taken on record as Section 162, CrPC statements. The Bench observed that though a universal definition of “hate speech” remained difficult, one commonality was consistent inasmuch as ‘incitement to violence’ was punishable. If the state was not allowed to regulate free speech, it would marginalise certain communities. It was stated that the present case did not relate to “hate speech” causally connected with the harm of endangering security of the State, but with ‘hate speech’ in the context of clauses (a) and (b) to sub-section (1) of Section 153A, Section 295A and sub-section (2) to Section 505 of the IPC. The Bench stated that the High Court could quash proceedings to prevent abuse of the process of law in the following instances:

i. legal bar against institution or continuance of the prosecution or the proceedings, such as due to requirement of prior sanction;

ii. where the allegations made in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;

iii. where the allegations in the FIR do not disclose a cognizable offence;

iv. where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused

v. where charge-sheet is filed wherein though the allegations do constitute the alleged offence but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge.

[Key Words: Section 179 CrPC, Section 156(1) CrPC, Section 95 IPC, hate speech, International Covenant on Civil and Political Rights 1966, International Convention on the Elimination of All Forms of Racial Discrimination 1966, European Convention of Human Rights, American Framework on Hate Speech: democracy, social contract theory, free marketplace of ideas, scales test, reasonable restriction test, proportionality, dignity, Declaration of Principles of Tolerance by the Member States of the United Nations Educational, Scientific and Cultural Organisation, meaning of “FIR”] [Coram: A.M. Khanwilkar, J., Sanjiv Khanna, J.]

In Chaman Lal v. State of Himachal Pradesh, the Court noted that the survivor had very low IQ and she was suffering from mental illness, and that she was not in a position to understand “good and bad aspect of sexual assault”. It was further observed that the accused had a false defence inasmuch as while he denied everything in his Section 313 CrPC statement, he was now pleading consensual sex and was accepting the paternity of the child. The Court further observed that the case before it fell within clause fifthly of Section 375 IPC as the survivor was incapable to consenting with an IQ of only 62. [Key Words: Sections 376 and 506 IPC, mentally retarded, delay in registering FIR, rape, Section 378 CrPC, IQ Test, consent, meaning of consent] [Coram: Ashok Bhushan, J., R. Subhash Reddy, J., M.R. Shah, J.]

In Issak Nabab Shah v. The State of Maharashtra, the Bench found that the quantity of ganja recovered from the Accused-Appellant was 6.3 kgs i.e. between small and commercial quantity and further that the accused had already spent 6 years in rigorous imprisonment when the maximum punishment was 10 years. Hence, the sentence was modified to six years, while the conviction was affirmed. [Key Words: commercial quantity, small quantity] [Coram: Ashok Bhushan, J., R. Subhash Reddy, J., M.R. Shah, J.]

In Jayant Etc. v. State of Madhya Pradesh, the Court held that:

i. Under Section 156(3) CrPC, the Magistrate can direct the concerned police officials to register a crime case/FIR for the offences under the MMDR Act and allied Rules and at this stage, the bar under Section 22 MMDR Act shall not be attracted.

ii. The bar under Section 22 MMDR Act shall be attracted only when the Magistrate takes cognizance of the offences under the MMDR Act and allied Rules, and orders issuance of process/summons accordingly.

iii. For the commission of the offence under the IPC, on receipt of the police report, the Magistrate can take cognizance without awaiting the receipt of the complaint to be filed by the authorised officer in respect of violation of various provisions of the MMDR Act and allied Rules.

iv. In case of a violation of the provisions of MMDR Act and the allied Rules, when a Magistrate passes an order under Section 156(3) CrPC and directs the police officials to register the crime case/FIR in respect of the violation of various provisions of the Act and Rules, after investigation, the concerned police officials submit a report, the same can be sent to the concerned Magistrate as well as to the concerned authorised officer under Section 22 MMDR Act. After this, the concerned authorised officer may file the complaint before the Magistrate along with the report submitted by the concerned IO. Thereafter, it will be open for the Magistrate to take cognizance, issue process/summons in respect of the violations of the various provisions of the MMDR Act and allied Rules. This is when the Magistrate is stated to have taken cognizance.

v. In a case where the violator is permitted to compound the offences on payment of penalty under Section 23A(1) MMDR Act, considering Section23A(2) of the MMDR Act, there shall not be any proceedings or further proceedings against the offender in respect of the offences punishable under the MMDR Act or any rule made thereunder so compounded. However, the bar under Section 23A(2) would not affect any proceedings for the offences under the IPC.

[Key Words: Section 482 CrPC, Sections 379 and 414 IPC, Sections 4, 21 of the Mines and Minerals (Development and Regulation) Act 1957, Rule 18 of the M.P. Minerals (Prevention of illegal Mining, Transportation and Storage) Rules 2006, Madhya Pradesh Minor Mineral Rules 1996, double jeopardy] [Coram: Ashok Bhushan, J., M.R. Shah, J.]

In Nimay Sah v. State of Jharkhand, the accused-Appellant was convicted under Sections 498-A read with Section 34 IPC. However, his brother (deceased’s husband) and his father (the deceased’s father-in-law) were convicted under Sections 304-B, 498-A IPC read with Section 34 IPC. The concurrent findings of conviction against the Appellant were set aside by the Supreme Court on the basis that the Appellant was merely mentioned as harassing the deceased in the same breath as others, without any specific instances. Moreover, it was noted the deceased’s brother accepted in his cross examination what while his deceased sister used to write him letters, none alleged harassment on part of the Accused. [Key Words: vague allegations, hostile witnesses] [Coram: N.V. Ramana, J., Surya Kant, J.]

In Dr. Naresh Kumar Mangla v. Smt. Anita Agarwal and Ors. the appellant-informant was aggrieved by the grant of anticipatory bail to the Respondents under Section 438 CrPC by the High Court. The appellant-informant had caused the registration of FIR under Sections 498A, 304-B, 323, 506 and 313 IPC against the Respondents who were the In-laws of his deceased daughter. The Court after consideration of the documents on record, held that the High Court erred in holding that that the FIR prima facie seems to be engineered and that there was no correlation between the allegations in the FIR, or that there were no specific allegations against the accused. The Court also noticed that unnatural death had occurred within 7 years of marriage. The Court reiterated its decision in Ramvilas (2001) 6 SCC 338 holding that when an order granting bail ignores material on record or is perverse, such an order is to be set side. The Court also recalled its landmark judgment Siddharam Satlingapa Mhetre (2011) 1 SCC 694 setting out the parameters to be considered in granting anticipatory bail, which were reiterated by the Constitution Bench in Sushila Aggarwal (2020) 5 SCC 1 to state that the impugned order granting anticipatory bail was unsustainable and contrary to the material on record and was therefore set-aside. The Court, noticing that the State admittedly did not investigate the allegation in the FIR that the deceased was murdered, recalled its judgments in Vinay Tyagi (2013) 5 SCC 762 and Dharam Pal (2016) 4 SCC 160 holding that the Supreme Court was empowered to transfer an investigation to a different agency including the CBI at any stage and transferred the further investigation of the case to the CBI. [Key Words: Cancellation of Anticipatory Bail, Section 438 CrPC, Sections 498A, 304-B, 323, 506 IPC, Power to transfer investigation to a different agency] [Coram: DY Chandrachud, J., Indu Malhotra, J., Indira Banerjee, J.]

EDUCATION

In APJ Abdul Kalam Technological University and Anr. v. Jai Bharathi College of Management and Engineering Technology and Ors., the Court held that the University Syndicate had the power to lay down norms for affiliation. The Court noted that the AICTE Act could be traced to Entry 66 List 1 of the Seventh Schedule to the Constitution, the A.P.J. Abdul Kalam Technological University Act (issued by the Kerala State Legislature) could be traced to Entry 25 of List III. It was further noted that the law was fairly well settled that while it was not open to universities to dilute AICTE norms, they could always prescribe enhanced norms. [Key Words: Artificial Intelligence and Data Science, self-financing Engineering College, All India Council for Technical Education, powers of Vice Chancellor] [Coram: S.A. Bobde, CJI., A.S. Bopanna, J., V. Ramasubramanian, J.]

In National Medical Commission v. Mothukuru Sriyah Koumudi and Ors., the Court held that the ratio in S. Krishna Sradha 2019 SCC Online SC 1609, dealing with MBBS courses, ought to be made applicable to post-graduate medical courses. In the present case, while terming the medical college’s conduct as “deplorable” in not following the merit list, the Bench held that the High Court could not have directed the creation of one seat for the wronged first Respondent. Following S. Krishna Sradha, it directed payment of compensation of INR 10 lakhs and the reservation of a seat in the next academic year. The Bench held that admission into medical colleges could not be permitted to be made beyond the sanctioned annual intake capacity. [Key Words: admission, merit, medical degree] [Coram: L. Nageswara Rao, J., Hemant Gupta, J.]

INSURANCE

In Anita Sharma and Ors. v. The New India Assurance Co. Ltd. and Anr., the Bench noted that it was commonplace for most people to be hesitant about being involved in legal proceedings and they therefore do not volunteer to become witnesses. Thus, the High Court erred in drawing conjectures about the fact that the witness AW3 accompanying the deceased, being a complete stranger and a non-resident, chose not to mention his name in the medical record. The Supreme Court lauded AW3 on account of his independence and benevolence inasmuch as without any personal interest or motive, he assisted both the deceased by taking him to the hospital and later his family by expending time and effort to depose before the Tribunal. The Bench held that the High Court erred in not appreciating that a person who accompanied the deceased to the hospital for immediate medical aid, could have neither gone to the police station simultaneously to lodge the FIR, not felt the need to go to the police when the police had themselves reached the hospital upon having received information about the accident. Finally, it was noted that the High Court failed to take into account that the Respondents failed to cross-examine the solitary eyewitness or confront him with their version, despite adequate opportunity, thus leading to an inference of tacit admission on their part. [Key Words: good Samaritan, importance of cross examination, interested witnesses] [Coram: Surya Kant, J., Aniruddha Bose, J.]

LAND AND PROPERTY

In The Project Director, Project Implementation Unit v. P.V. Krishnamoorthy and Ors., the Court held that the Parliament was competent to enact a law for declaring open greenfield lands as national highway under Entry 23 of the Union List. Article 257 was not found to be contravened. It was held that the Union Government is fully competent to notify “any land” (not necessarily an existing road/highway) for acquisition, to construct a highway to be a national highway. It was held that the High Court had intruded upon the domain of sufficiency and adequacy of material, including the appropriateness of the route approved by the competent authority, and the same was forbidden in judicial review. Applying plain and harmonious construction to the provisions of the National Highways Act 1956 and National Highways Act 1988, the Bench noted that at the stage of issuing notifications under environmental laws or the forest laws, there was no need to seek prior permission (by the Central Government). The purpose of public hearing in the concerned enactments (namely, the 1956 and 1988 Acts on the one hand and the environment/forest laws, on the other) were stated to be qualitatively different and contextual to the matters relevant under the concerned enactment. The Bench also noted that it could not be oblivious to the fact that there was a qualitative difference between a project necessitating acquisition of a large chunk of land at one place for continual commercial/industrial activities to be carried out as opposed to the acquisition of a small strip of land in the area for construction of a road/highway. Further, it observed that “the purpose of road/highway is merely to facilitate free passage through the same. It would have a floating population unlike in the case of a big project at one place occupying several square metres of land and engaging in continual commercial/industrial activities thereon. The environmental impact would be and ought to be measured in relative terms and at the local level and site specific, whereas, the requirement for road/national highway would essentially be in larger national interest.” [Key Words: National Highways Act 1956 and National Highways Act 1988, Chennai Krishnagiri Salem (National Corridor) 8 Lanes new National Highway, “Bharatmala Pariyojna – Phase I”, Economic Corridors, Inter Corridors and Feeder Routes, colourable exercise] [Coram: AM Khanwilkar, J., BR Gavai, J., Krishna Murari, J.]

In Daulat Singh (D) through LRs v. State of Rajasthan and Ors., it was held that the receipt of a gift in terms of Section 123 of the Transfer of Property Act could be ascertained from the surrounding circumstances such as taking into possession of the property by the donee of the donee being in the possession of the deed itself, and that the only requirement was that the acceptance ought to be during the donor’s lifetime. In the facts before it, the Bench concurred with the Single Judge that since it was a transfer between a father and son, the valid acceptance of a gift was proved when the father-son started living separately. Moreover, the deed also bore the signature of the donor and the attestation of two witnesses. [Key Words: The Rajasthan Imposition of Ceiling on Agricultural Holdings Act 1973, Board of Revenue, Article 227, Section 122 of the Transfer of Property Act 1882, Rajasthan Tenancy Act 1955] [Coram: N.V. Ramana, J., S. Abdul Nazeer, J., Surya Kant, J.]

In Iqbal Basith and Ors. v. N Subbalakshmi and Ors., the Court held that where the title of appellants to suit property was not disputed by respondents and where the reports of the Pleader Commissioner, property tax, and municipal tax receipts confirm title of the appellants, the High Court was wrong to have held that the appellants did not have title to the property. [Key Words: Identity of Suit Property, Title of Appellants, Lakhi Baruah v. Padma Kanta Kalita (1996) 8 SCC 357] [Coram: R.F. Nariman, J., Navin Sinha, J., Krishna Murari, J.]

FAMILY LAW

In Smriti Madan Kansagra v. Perry Kansangra, the Court held that the order passed by the High Court of Kenya deserved to be shown deference and nothing turned on the form and format of the order as all as the High Court was apprised of all the facts, and the context in which it was approached, for compliance of the directions passed by this Court in the Judgment. Since the registration of the Judgment passed by this Court has been done under the orders of the High Court of Kenya, this demonstrated sufficient compliance of the direction to obtain a Mirror Order issued from a competent court in Kenya. [Key Words: “Foreign Judgments (Reciprocal Enforcement) Act, CAP, 43”, Kenya, mirror orders, Judicature Act of Kenya, Article 2(5) of the Constitution of Kenya 2010] [Coram: UU Lalit, J., Indu Malhotra, J., Hemant Gupta, J.]

In Smt. S Vanitha v. The Deputy Commissioner, Bengaluru Urban District and Ors., the Court held that in the case of the children of a senior citizen, the obligation to maintain a parent is not conditional on being in possession of the property of the senior citizen or upon a right of future inheritance. The Court also held that under Section 23(1) of the Senior Citizens Act, where property has been transferred subject to the transferee providing basic amenities to the transferor, the failure to provide such maintenance would render the transfer of property vitiated by fraud, coercion or under undue influence. The Court also held that under Section 23(2) however, the transfer of the estate could also be by a third party and could contain a condition that the transferee shall maintain the senior citizen. Further, the Court held that ‘transfer’ includes not only absolute transfer of property but also the transfer of a right or interest in the property for the purposes of the act. The Court clarified that the Senior Citizens Act shall not override the Protection of Women from Domestic Violence Act and that the right of a woman to secure residence in a shared household would not be defeated by securing an order of eviction from a tribunal under the Senior Citizens Act. [Key Words: Senior Citizens Act 2007, woman’s right of residence, maintenance of parents and senior citizens, Procedure to be followed by a Maintenance Tribunal, shared household, estranged spouse] [Coram: DY Chandrachud, J., Indu Malhotra, J., Indira Banerjee, J.]

SERVICE AND ADMINISTRATIVE LAW

In Inderjit Singh Sodhi and Ors. v. The Chairman, Punjab State Electricity Board and Anr., it was held that there could be a discrimination in pay between direct recruits and promotees holding the post of Assistant Engineer if the promotees did not possess AMIE qualification and thus were never appointed in terms of Regulation 7(a)(i) r/w Regulation 10.4 Reiterating Kunhayammed (2000) 6 SCC 359, it was reiterated that dismissal of SLPs was inconsequential as regards the question of law. [Key Words: time bound promotional scale, Punjab State Electricity Board Service of Engineers (Civil) Regulations 1965, Bhakra Beas Management Board] [Coram: L. Nageswara Rao, J., Hemant Gupta, J., Ajay Rastogi, J.]

In Registrar Karnataka University and Anr. v. Dr. Prabhugouda and Anr., the Court held that a comprehensive reading of Clause 17 of the statute governing the direct recruitment, promotion under Career Advancement Scheme (CAS) and conduct of interview to the posts of Professors, Associate Professors, Assistant Professors, Principals of Constituent Colleges, Directors of Physical Education and Librarians under Section 40(1)(k) of KSU Act, 2000 provided that for the purpose of granting CAS promotions, the incumbent teacher must have held a substantive sanctioned post as the CAS promotion was to the incumbent teacher and on superannuation of the incumbent, the post reverted to its original cadre. Further the Court held that the incumbent teacher must be on the roll and active services of the university or the College on the date of consideration by the Selection Committee and that the term ‘college’ referred only to constituent colleges and not affiliate colleges. [Key Words: effective date of Career Advancement Scheme ‘CAS’, Section 2(2) of the Karnataka State Universities Act 2000, consequential benefits, UGC] [Coram: Ashok Bhushan, J., R Subhash Reddy, J., MR Shah, J.]

In The State of Jharkhand and Ors. v. Brahmputra Metallics Ltd., Ranchi and Anr., the State of Jharkhand was found to have issued a prospective exemption notification belatedly in 2015 in lieu of an Industrial Policy notified in June 2012 wherein it was stated that the State Government departments would issue the necessary notifications. The Bench noted that there could only be an analogy between the doctrine of legitimate expectations and the doctrine of promissory estoppel, but the same could not be conflated. On the facts before it, the Bench categorically held that “…the State had made a representation to the respondent and similarly situated industrial units under the Industrial Policy 2012. This representation gave rise to a legitimate expectation on their behalf, that they would be offered a 50 per cent rebate/deduction in electricity duty for the next five years. However, due to the failure to issue a notification within the stipulated time and by the grant of the exemption only prospectively, the expectation and trust in the State stood violated. Since the State has offered no justification for the delay in issuance of the notification, or provided reasons for it being in public interest, we hold that such a course of action by the State is arbitrary and is violative of Article 14.” [Key Words: Bihar Reorganization Act 2000, Bihar Act 1948, captive power plant, electrical duty, Industrial Policy 2012, promissory estoppel, equitable estoppel, breach of policy commitments, Motilal Padampat (1979) 2 SCC 409, unjust enrichment, argument of delay] [Coram: DY Chandrachud, J., Indu Malhotra, J.]

In Vikesh Kumar Gupta and Anr. v. The State of Rajasthan and Ors., the Bench reiterated that courts “should be very slow in interfering with expert opinion in academic matters” and it was impermissible for courts to arrive at the correct answers itself. It was observed that the “delay in finalization of appointments to public posts is mainly caused due to pendency of cases challenging selections pending in courts for a long period of time. The cascading effect of delay in appointments is the continuance of those appointed on temporary basis and their claims for regularization. The other consequence resulting from delayed appointments to public posts is the serious damage caused to administration due to lack of sufficient personnel.” [Key Words: fence sitters, public examination, administrative efficiency] [Coram: L. Nageswara Rao, J., Hemant Gupta, J., Ajay Rastogi, J.]

In Madhavi v. Chagan and Ors., the Court held that the Appellant was qualified for appointment as a temporary teacher as she was a graduate and also possessed B.Ed. degree. Her appointment was in accordance with Section 5(5) of the Act as were the appointments of the other private respondents. However, the first Respondent/Chagan could not be treated to be part of Category ‘C’ from the date of his initial appointment i.e. 1.8.1985 as he was neither a graduate nor a trained teacher when he was appointed. Moreover, because the first Respondent was not even a trained teacher on the date of his appointment, he could not be allowed to claim seniority on such ground from the date of his initial appointment. [Key Words: The Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act 1977, vacancy, primary school, secondary school] [Coram: L. Nageswara Rao, J., Hemant Gupta, J., Ajay Rastogi, J.]

In Pankjeshwar Sharma and Ors. v. State of Jammu and Kashmir and Ors., it was held that while it was true that, ordinarily, in an open selection, appointments were to be made strictly in the order of merit in terms of the procedure prescribed under the relevant statutory recruitment rules or in absence under the guidelines if prescribed, yet, if appointments were made for exceptional reasons deviating from the merit list, which ordinarily is not permissible, but in unforeseen exigencies, the State could not be faulted. In the present case, the Court held that the State could not be faulted due to its bona fide intention to give quietus to the ongoing litigation whereby it conceded to adjust such candidates who are under litigation for a long time with no mala fides or bias being imputed to the State action. It was further observed that because something is being done or acted upon erroneously could not become the foundation for perpetuating further illegality. Given the long tenure of service already completed, the Bench stated that it was not inclined to disturb the appointment of those 22 candidates which had been questioned by the appellants. [Key Words: Concession by Advocate General, Article 142, negative equality] [Coram: L. Nageswara Rao, J., Hemant Gupta, J., Ajay Rastogi, J.]

ELECTION LAW

In Pradeep Kumar Sonthalia v. Dhiraj Prasad Sahu @ Dhiraj Sahu and Anr., an elected member of the Jharkhand Assembly Amit Kumar Mahto, had cast his vote in his representative capacity at 9.15 A.M on the 23.03.2018 in the election to the Council of States, whereas the elected member was sentenced and convicted by the Sessions Court for offences punishable under Sections 147, 323/149, 341/149, 353/149, 427/149 and 506/149 IPC at 2.30 P.M on the same day, thereby disqualifying him from the legislative assembly. The respondent was declared to be elected to the Council of States by a margin of 0.01 vote aggrieving the appellant-candidate, resulting in the filing of election petition before the High Court. Although the High Court held that the vote of disqualified member of the assembly vote could not be valid, the High Court did not render a finding on consequent outcome of the election. In the subsequent appeals, the Court examined Article 191 (1) (e) of the Constitution of India read with Section 8 (3) of the Representation of the People Act 1951. The Court noticed its judgment in Pashupati Nath Singh AIR 1968 SC 1064 wherein the Court interpreted the word “date” to not necessarily mean 00.01 A.M to 24.00 A.M but that the running of time would get arrested at the happening of the relevant event, i.e., scrutiny of nomination papers. Applying the same reasoning, the Court stated that the consequence of the conviction of the member of the assembly i.e., disqualification too would run from the time of conviction. The Court further held that a view that a member of the legislative assembly would grossly violate his right to be treated as innocent until proved guilty. The Court noticed its judgment in G.S Chatha Rice Mills (2020) SCCOnline SC 770, where the Court extensively dealt with the meaning of words “date” and “day” in the context of the Customs Tariff Act 1975 wherein the Court had pointed out these expressions were construed in varying contexts and that a general position in law, divorced from subject, context and statute, has not been laid down and legal fiction cannot prevail over facts where the law does not intend it to prevail. The Court also relied on Gokaraju Rangaraju (1981) 3 SCC 132 to apply the de facto doctrine i.e., the acts of the officers de facto performed within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit, are generally regarded as valid and binding as if they were the acts of the officers de jure. Therefore, the Court held that the vote of the member of the assembly cast at 9.15 A.M before he was convicted and disqualified at 2.30 P.M should be treated as a valid vote. [Key Words: Article 191 (1) (e) Constitution of India read with Section 8 (3) of the Representation of the Peoples Act 1951, meaning of “date”, disqualification of member of legislative assembly, election, de facto doctrine] [Coram: S.A. Bobde, CJI., A.S. Bopanna, J., V. Ramasubramanian, J]

In Saritha S. Nair v. Hibi Eden, it was held that defects in the election petition such as (a) non-signing the declaration portion of verification, (b) verification stating that the index had been verified instead of the annexures, affidavits and petitions, and (c) annexures not verified, were curable defects. It was laid down that an election petition could not be thrown out in limine on the basis of verification being defective. As regards Section 8(3) of the Representation of Peoples Act 1951, it was stated that it was the date of conviction which determined the date of commencement of the period of disqualification, and it was the date of release which determined the date on which the disqualification will cease to have effect. Thus, mere suspension of the sentence was not sufficient to make Section 8(3) inapplicable. [Key Words: curable defect, Rules of the High Court of Kerala, disowning pleadings, Section 389(1) CrPC, Section 86 and Chapter II of the Representation of Peoples Act 1951] [Coram: SA Bobde, CJI., AS Bopanna, J., V. Ramasubramanian, J.]

LABOUR LAW

In M/s. Panther Security Service Private Limited v. The Employees’ Provident Fund Organisation and Anr., stated that as per the Private Security Agencies (Regulation) Act 2005, the Appellant was the security guards’ employer, and the latter were paid wages by the appellant. Merely because the Appellant’s clients paid money under a contract and the Appellant paid the security guards from the monies received from the contract, did not make the Appellant’s clients the employer of the security guards. It was reaffirmed that the provisions of the Employees’ Provident Funds and Miscellaneous Provisions Act 1952 were applicable to a private security agency engaged in the expert service of providing personnel to its client, if it meets the requirement of the EPF Act. [Key Words: employer, employee, immediate employer] [Coram: Navin Sinha, J., Surya Kant, J.]

TAXATION

In Skill Lotto Solutions Private Limited v. Union of India and Ors, the Petitioner impugned the levy of GST on lottery as unconstitutional as it was not “goods” under the Goods and Services Tax 2017 and hence violative of Article 14. Hostile discrimination was alleged as only lottery, betting, gambling was being taxed by the Union but not other forms of actionable claims. The Bench held as follows:

1. The writ petition under Article 32 was maintainable.

2. The inclusion of actionable claim in the definition of “goods” under Section 2(52) of the Central GST Act 2017 is not contrary to the legal meaning of goods and is neither legal nor unconstitutional.

3. There is no hostile discrimination against lottery, betting and gambling as betting and gambling were never recognised as trade, business or commerce.

4. When determining the face value of the lottery tickets for levy of GST, prize money need not be excluded for purposes of levy of GST.

[Key Words: Lotteries (Regulation) Act 1998, artificial definition, legal meaning, popular meaning, absolute power to make an inclusive definition, res extra commercium, lottery, betting, gambling, Sunrise Associates (2006) 5 SCC 603, Section 311(2) of the Government of India Act 1935, Articles 246A, 366(12), 366(29A) Constitution of India, Section 3 of the Transfer of Property Act 1882, Section 2 (52) of the GST Act 2017, Section 2(7) of the Sale of Goods Act 1930, Gannon Dunkerley and Co. (1959) SCR 329] [Coram: Ashok Bhushan, J., R. Subhash Reddy, J., M.R. Shah, J.]

COMPANY LAW

In Action Ispat and Power Pvt. Ltd. v. Shyam Metalics and Energy Ltd., the appellant was aggrieved by the concurrent orders of the Single Judge and the Division Bench of the High Court where the winding up petition under Sections 433 (e) and (f), and Section 439 of the Companies Act 1956 was transferred to the National Company Law Tribunal under Section 434 of the Companies Act 2013 (“2013 Act”) after the passing of the order of winding up and appointment of the Official Liquidator. The Court noticed its decision in Kaledonia 2020 SCCOnline SC 943, wherein the Court had recognized the 5th proviso to clause (c) of sub-section (1) of Section 434 of the 2013 Act is not restricted to any particular stage of winding up proceedings and therefore the Company Court is vested with the discretion to transfer such petitions to the NCLT at any stage. The Court analyzed the various stages of winding up proceedings under Chapter XX of the 2013 Act to notice that the Tribunal retained the power to control winding up proceedings even after the it is admitted. However, after the admission of the winding up petition and the assets of the company become custodia legis and are taken over by the Company Liquidator, Section 290 of the 2013 Act indicates that the Liquidator may carry on the business of the company for the beneficial winding up and may even sell the company as a going concern. The Court therefore held that so long as nothing irreversible done such as sale of the company’s assets, the Company Court is not restrained from transferring the proceedings to the NCLT. In the present case, the Court noted the observations of the High Court that nothing irreversible was done, and therefore upheld dismissed the civil appeal. [Key Words: transfer of winding up petition, stage of winding up proceedings, Section 434 Companies Act 2013] [Coram: R F Nariman, J., K.M. Joseph, J., Krishna Murari, J.]

COMPETITION

In Samir Agrawal v. Competition Commission of India and Ors, the Court held that appellant/informant had sought an inquiry by the CCI into alleged anti-competitive conduct of Ola and Uber. The Court held that under a combined reading of the Competition Act and the CCI (General) Regulations 2009, any ‘person’ including individuals of all kinds and every artificial juridical person may provide information to the CCI and that the informant is not required to show that he has been personally aggrieved and set aside findings of the NCLAT that only a person aggrieved could supply such information. However, the Court upheld the finding of the CCI and the NCLAT that Ola and Uber did not facilitate cartelization of anti-competitive practices. [Key Words: Ola, CCI, Uber, Sections 18, 19(1), 35, 45, 53B, 53N, 26(2), 3(1), 3(3)(a), 3(4)(e) of the Competition Act 2002, Competition Commission of India (General) Regulations 2009] [Coram: RF Nariman, J., KM Joseph, J., Krishna Murari, J.]

COVID-19

In Dr. AKB Sadhbhavana Mission School of Homeo Pharmacy v. The Secretary, Ministry of Ayush and Ors., the appellant was aggrieved by part of the judgment of the High Court where in it held that that with respect to COVID-19, practitioners in AYUSH can prescribe certain mixtures and tablets, but only as immunity boosters and that any doctor practising AYUSH making an advertisement or prescription of medicine as cure for COVID-19 would be liable for appropriate action under the Disaster Management Act 2005. The Court observed that the advisory dated 06.03.2020 issued by the Ministry of AYUSH were not correctly comprehended by the High Court, in as much that the advisory specifically permits Homeopathy as an add-on intervention to conventional medicine. The Court also noticed the guidelines dated 04.04.2020 envisaging Homeopathy as therapeutic aid. The Court also noted that any advertisement by Homeopathic practitioners is already prohibited by Regulation 6 of the Homeopathic Practitioners (Professional Conduct, Etiquette and Code of Ethics) Regulations 1982 under the Homeopathy Central Council Act 1973 and it is correct that Homeopathy cannot be prescribed or advertised as a cure for COVID-19. The Court observed that there was no occasion to make observations and issue directions as to the advertisement my Homeopathic practitioners since the Writ Petition before the High Court prayed for the limited relief of implementation of the advisory dated 06.03.2020. and thus, modified the judgment to such extent. [Key Words: Homeopathy, AYUSH, COVID-19, restrictions on treatment and advertisement] [Coram: Ashok Bhushan, J., R. Subash Reddy, J., M.R. Shah, J.]

In Kush Kalra v. Union of India, the Court held that in terms of the Revised guidelines for Home Isolation of very mild/pre-symptomatic/asymptomatic COVID-19 cases dated 02.07.2020 issued by the Union Ministry of Health and Family Welfare (which were referable to exercise of power by the authority under Disaster Management Act 2005), the various states and Union Territories were not obliged to affix posters or other signage outside the residences of those found COVID-19 Positive. It was further observed that the State Governments and Union Territories could resort to affixing posters only when there was a direction issued by the competent authority under the Disaster Management Act 2005. [Key Words: shaming, privacy, corona, posters] [Coram: Ashok Bhushan, J., R. Subhash Reddy, J., M.R. Shah, J.]

TRANSFER PETITIONS

In Institute of Chartered Accountants of India and Ors. v. Shaji Poulose and Ors., the Respondents had challenged the validity of Chapter VI of Guidelines No.1- CA(7)/02/2008 dated 8.8.2008 issued by the ICAI Council as being violative of Article 19(1)(g). The impugned Guidelines stipulated that an ICAI member would not accept more than 60 tax audit assignments under Section 44AB of the Income Tax Act 1961 and further stipulated that the contravention of the Guidelines would amount to “professional or other misconduct” under Section 22 of the Chartered Accountants Act 1949. The Bench directed that the petitions be transferred to the Supreme Court on account of the “public importance affecting Chartered Accountants as well as the citizens who have to obtain compulsory tax audits.” The Bench also observed that when the Supreme Court dismissed similar earlier Transfer Petition Nos.614-615 of 1990 [where the issue was a cap of 30 tax audits], conflicting judgments from the various High Courts had not arisen. Furthermore, simply because the Supreme Court in Southern Petrochemical Industries (2007) 15 SCC 649, had transferred all the matters to the Calcutta High Court, it did not make that order a precedent. [Key Words: Article 139-A(1) of the Constitution of India, Order XL Rule 1 of the Supreme Court Rules 2013] [Coram: Ashok Bhushan, J., R. Subhash Reddy, J., M.R. Shah, J]

RESERVATIONS

In The State of Maharashtra and Anr. v. Keshao Vishwanath Sonone and Anr., the Court held that there was no conflict between the judgments in Basavalingappa AIR 1965 SC 1269 and Milind (2001) 1 SCC 4, and that the High Court could not entertain the email or entered into the evidence as to whether or not the “Gowari” tribe was part of the Scheduled Tribe “Gond Gowari” where the latter was included in the Constitution (Scheduled Tribes) Order 1950 at Entry 18 at Item 28. The Bench further noted that the High Court, having noted that the tribe Gond Gowari existed as per the Census of 1891 and 1901, erred in holding that the Gond Gowari was extinct by 1911 as it failed to appreciate that this was so because the methodology of the 1911, 1921 and 1931 Census had been altered. Futhermore, it was held that “…the benefit given to a Scheduled Tribe cannot be taken away on the basis of figures given in Census operation only”. The Bench also held that the High Court anyhow could not have held that Gond Gowari tribe had become extinct as the materials before it suggested that there was a thriving population present at District Gadchiroli. Harbouring doubts as to the correctness of the ratio in Mana Adim Jamat Mandal (2006) 4 SCC 98, the Court held that “Gowari” was not the same as “Gond Gowari”. In fact, Gond Gowari at Item 28 in Entry 18 was a sub-tribe of Gond and the validity of the caste certificate to Gond Gowari had to be tested on the basis of the affinity test. [Key Words: ‘Gowari’, ‘Gond Gowari’, Yadav, Ahir, Gond, Caste Scrutiny Committee, affinity test, Scheduled Tribes, Entry 12 and Entry 18 (item 28) of Part IX of the Constitution, Article 341, Article 342(2), Article 338, Article 366(25), Anthropological Expert Report, Special Backward Class, Other Backward Class, “affinity with Gond”, The Scheduled Castes and Scheduled Tribes Orders (Amendment) Bill 1976, National Commission for the Scheduled Tribes, Backward Classes Commission, Kalekar Commission, States Reorganisation Act 1956] [Coram: Ashok Bhushan, J., R. Subhash Reddy, J., M.R. Shah, J.]

In Saurav Yadav and Ors. v. State of Uttar Pradesh and Ors., the Bench noted that while the principle that candidates belonging to any vertical reservation categories were entitled to be selected in open/general categories was well settled, it was also well settled that if such candidate from the reserved categories were entitled to be selected on the basis of their own merit, their selection would not be counted against the reserved category quota. It was further noted that while the High Courts of Rajasthan, Bombay, Uttarakhand and Gujarat adopted the same view (“the first view”) while dealing with horizontal reservations, the High Courts of Allahabad and Madhya Pradesh had adopted a view (“the second view”) whereby at the stage of accommodating candidates for effecting horizontal reservation, the candidates from reserved categories can be adjusted only against their own categories under the concerned vertical reservation and not against the “Open or General Category”. In the leading opinion authored by Lalit, J., the second view was held to be against the principles of equality or any dicta of the Supreme Court.

In his concurring opinion, Bhat, J., differentiated between “vertical” and “horizontal” reservations and held that vis-à-vis vertical reservations, horizontal reservations were not inviolate and could not be carried forward. These “special” reservations had to be adjusted and not a “quota” per se as they were available to all women and men alike. Adoption of the second view was observed to be leading to bizarre consequences. [Key Words: OBC Female, horizontal reservation, interlocking reservations] [Coram: Uday Umesh Lalit, J., S. Ravindra Bhat, J., Hrishikesh Roy, J.]

BLACKLISTING AND TENDER

In The State of Madhya Pradesh and Anr v. U.P. State Bridge Corporation Ltd. and Anr., the Court reiterated the judgment in Tata Cellular (1994) 6 SCC 651 in relation to the parameters of judicial review in matters of administrative action inasmuch as the Supreme Court “must defer to the understanding of clauses in tender documents by the author thereof unless, pithily put, there is perversity in the author’s construction of the documents or mala fides”. On facts, the Bench agreed with the Petitioner stated that "though the investigation is no longer pending and though there is no conviction by a court of law, UPSBC has certainly been “indicted”, in that, a charge sheet has been filed against it relatable to the FIR dated 15.05.2018 in which a trial is pending, though stayed by the High Court.” Further, the Bench agreed with the State that a fraudulent practice, as defined in the NIT, would include an omission of facts or disclosure of incomplete facts in order to influence the bidding process. [Key Words: integrity fact, disqualification, blacklisting, Caretel (2019) 14 SCC 81][Coram: RF Nariman, J., KM Joseph, J.]

In M/s Galaxy Transport Agencies, Contractors, Traders v. M/s New JK Roadways Fleet Owners and Contractors and Ors., the Court held that the author of a tender document is the best person to understand and appreciate its requirements and that the interpretation of the same should not be second-guessed by a court in judicial review, and set aside a judgment of the High Court where the High Court had given its own interpretation contrary to the interpretation of the authority issuing the tender. [Key Words: interpretation of a tender document] [Coram: RF Nariman, J., Navin Sinha, J., KM Joseph, J.]

ENVIRONMENTAL LAW

In Titty Alias George Kurian v. The Deputy Forest Range Officer, in a rare instance, the Bench allowed the review application and recalled its own order dated 16.5.2018. The Bench noted that Section 9 of the Wild Life (Protection) Act 1972 prohibited hunting of any wild animal under Schedule I, II, III and IV except as provided under Sections 11 and 12. Sections 11 and 12 are the provisions whereby hunting was permitted by the permission of Chief Wild Life Warden. In case, a person hunted any of the wild animals which are included in Schedule I to IV, it was an offence inviting penalty under Section 51 of the Act 1972. On facts, it was held that the turtle recovered was an ‘Indian Flap Shell (Lissemy’s Punctata)’ whereas the turtle included in Part II of Schedule I of the Act, 1972 was “Indian Soft-shelled Turtle (Lissemys punctata punctata).” Thus, the High Court was held to have correctly quashed the criminal proceedings. [Key Words: Wild Life (Protection) Act 1972, hunting, review] [Coram: Ashok Bhushan, J., Indu Malhotra, J.]

MISCELLANEOUS

In Nayara Energy Limited v. The State of Gujarat and Ors., the Court held that where the land of the appellant had been acquired 20 years ago, and where the original claimants were not in a position to furnish any security, it would meet the ends of justice if the claimants were permitted to withdraw 25% of the enhanced amount of compensation together with proportionate interest and cost without furnishing any security and as long as the remaining amount is invested in a fixed deposit in any nationalized bank with cumulative interest. [Key Words: Reference Court, Compensation for Land Acquisition] [Coram: Ashok Bhushan, J., R Subhash Reddy, J., MR Shah, J.]

In Telangana Power Generation Corporation Ltd. (TSGENCO) v. Andhra Pradesh Power Generation Corporation Ltd., the Court, vide a detailed examination of the matter on facts, found that the objections to the One-Man Committee’s Concluding Report datedc20.06.2020 were without merit and it is obligatory for power utilities of both the States and all concerned to carry out and implement the directions of the One-Man Committee Report. [Key Words: Andhra Pradesh Reorganisation Act 2014, allocation of the employees principle of nativity, One-Man Committee] [Coram: Ashok Bhushan, J., M.R. Shah, J.]

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