- Apprentice Lawyer
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 January 2021.
In Haryana Space Application Centre (HARSAC) and Anr. v. M/s Pan India Consultants Pvt Ltd., the challenge arose from the order of the Punjab and Haryana High Court which, on an application filed under Section 29A of the Arbitration and Conciliation Act 1996, had granted an extension of 3 months to enable parties to conclude their arguments and a further period of 1 month for the arbitral tribunal to pass the Award. The Bench observed that even though a period of over 4 years had elapsed since the constitution of the arbitral tribunal on 14.09.2016, the Award had still not been pronounced. It further found a flaw in the very constitution of the arbitral tribunal as the nominee arbitrator of HARSAC had a controlling influence over the Petitioner Company, which was barred under Section 12(5) of the Arbitration and Conciliation Act, 1996 read with the Seventh Schedule. The Bench thus disposed of the challenge by appointing a sole arbitrator under Section 29A (6) after taking consent of the parties to the substitution of the existing tribunal. [Key Words: Section 29A, 12 (5) and seventh schedule of Arbitration and Conciliation Act 1996, extension, award, nominee arbitrator, appointment of sole arbitrator] [Coram: L. Nageswar Rao, J., Indu Malhtora, J., Ajay Rastogi, J.]
In Bhaven Construction through Authorised Signatory Premjibhai K. Shah v. Executive Engineer Sardar Sarovar Narmada Nigam Ltd. & Anr., the question before the Bench was whether the arbitral process under the Gujarat Public Works Contracts Disputes Arbitration Tribunal Act 1992 could be interfered with under Article 226/227 of the Constitution. Emphasising the laudatory intent of Section 5 of the Arbitration and Conciliation Act 1996, the State could not demonstrate any exceptional circumstance of “bad faith” to invoke Article 227, as stated in Deep Industries 2019 SCC Online SC 1602. The Bench further held that the arbitral process was “strictly conditioned upon time limitation and modelled on the ‘principle of unbreakability’”. [Key Words: Gujarat Public Works Contracts Disputes Arbitration Tribunal Act 1992, Article 227, public works contract] [Coram: N.V. Ramana, J., Surya Kant, J., Hrishikesh Roy, J.]
In Hari Om @ Hero v. State of UP, convictions were challenged due to lack of evidence. Distinguishing the case from Suryanarayana (2019) 4 SCC 522, the Court held that in the present case, while there was evidence that the accused would be naturally available inside the house where the crime had occurred, the testimony of the witness showed glaring inconsistencies on whether he had witnessed the incident and thus the testimony of the child witness, who was 5 years old when the incident had occurred, was not free of doubts and defects. Moreover, of the 3 features which could be put against the accused, the testimony of the child was unreliable. The Court also held that it is difficult to rely on lifted fingerprints when there was nothing on record regarding the competence of the police officer doing it and that the sole fact that the fingerprints of the accused were present on an object was not satisfactory to sustain a finding of guilt. [Key Words: Sections 396, 412 IPC, Section 3(2)(v) of SCST (Prevention of Atrocities Act) 1989, Section 25 Arms Act 1959, Death sentence, testimony of child witness – when may be discounted], finger print evidence, Prakash v State of Karnataka (2014) 12 SCC 133[Coram: UU Lalit, J., Indu Malhotra, J., Krishna Murari, J.]
In Mihir Gope Etc. v. The State of Jharkhand, the challenge was to the conviction of two accused for the offences under Sections 341, 307, 325 and 302 read with Section 34 of the IPC, and the sentencing thereunder. On principle, the Court first held that even though all the witnesses were related to the victims, their testimonies could not be disbelieved ipso facto. The Court disbelieved the eye witness accounts of two of the witnesses and their testimonies were found to be exaggerated and to be based on overall impression of the strikes rather than a factual narration of events. Accordingly, the Court set aside the judgment of conviction of the two accused under Sections 302, 325, 307 and 341 read with Section 34 and the sentence under those Sections. However, the injury being simple in nature, the Court convicted the accused under Section 324 IPC. [Key Words: Acquittal, common intention, simple injury, testimonies based on overall impression] [Coram: N.V. Ramana, J., Surya Kant, J., Aniruddha Bose, J.]
In S Sundara Kumar v. State, represented by the Inspector of Police, Vigilance and Anti-Corruption, the Court held that as the appellant, a senior citizen aged 69 years had been dismissed from service and served a year and one month in rigorous imprisonment, in a sentence for 2 years imposed, his sentence may be reduced to one year and one month and directed that he be released. [Key Words: Prevention of Corruption Act 1988 Sections 7, 13(2), 13(1)(d), Leniency] [Coram: Ashok Bhushan, J., R Subhash Reddy, J., MR Shah, J.]
In SREI Equipment Finance Ltd. v. Ramjan Ali & Ors., an appeal had been filed against a judgment of the High Court of Allahabad which had allowed an application under Section 482 CrPC and directed the release of certain JCB vehicles. The Court held that the Motor Vehicles Act, 1988 regulates the registration of vehicles, transfer of ownership and contains provisions regarding motor vehicles that are subject to hire purchase agreement. The Court held that where the order of the Assistant Regional Transport Officer had neither been set aside nor stayed, the High Court could not have ignored the effect and consequences of the order. The Court held that where the statutory authority, while cancelling the registration certification, had concluded that the entry of the appellant as a person in whose favour the vehicle was hypothecated, which was there in the original registration certificate, had been fraudulently deleted, then any subsequent acts, including the registration certificate issued would become non est. [Key Words: Sections 55(5), 57(1), 57(3), 57(4) of the Motor Vehicles Act 1988, Rule 61 of the Central Motor Vehicle Rules 1989] [Coram: Ashok Bhushan, J., R Subhash Reddy, J., MR Shah, J.]
In Murali v. State rep. by Inspector of Police, appeals had been filed against judgment of the Madras High Court which upheld the appellant’s convictions under Sections 324 of the IPC sentencing him to 3 months’ rigorous imprisonment and the second appellant under Section 307 and 341 IPC, sentencing him to 5 years rigorous imprisonment. The Court held that even though Section 320 of the CrPC does not encapsulate Sections 324 and 307 IPC, amicable settlement between the parties can be a relevant factor for the purpose of reduction in the quantum of sentence as per Ram Pujan v. State of UP (1973) 2 SCC 456. As the appellants had admitted fault, taken responsibility and sought forgiveness and as the victim had acknowledged the same, forgiven them and settled the dispute, the Court reduced the quantum of sentence and set them free. [Key Words: Compounding of offences, Compoundable offences][Coram: NV Ramana, J., Surya Kant, J., Aniruddha Bose, J.]
In Ms. X v. State of Rajasthan and Ors., a writ petition was filed by a rape victim seeking rehabilitation and a direction to the respondent State to protect her and her children’s life. It was argued by her that her identity has been disclosed by the media, after which she was being refused rental accommodations, had no job security and was unable to educate her children. The Respondent, however, contended that adequate measures were being taken for her security and also that she was a habitual complainant who has already made several false allegations and complaints. The Bench held that the Petitioner is a rape victim who deserves to be treated as such by all authorities. The Bench directed the Deputy Commissioner, Ranchi to take measures to ensure that the minor children of the Petitioner were provided with free education in any of the Government Institutions where the Petitioner is residing till they attain the age of 14 years and also consider the case of the Petitioner for providing house under Prime Minister Awas Yojna or any other Central or State Scheme. Further the Bench directed the SSP, Ranchi to review the Police security provided to the petitioner from time to time and the District Legal Services Authority, Ranchi to render legal services to the Petitioner to safeguard the interest of the Petitioner. [Key Words: rape victim, rehabilitation, protection, free education of minor children] [Coram: Ashok Bhushan, J., R. Subhash Reddy, J., M.R Shah, J.]
In Asharam Tiwari v. State of Madhya Pradesh, the Court upheld the conviction and sentence of the Appellant under Sections 302/34, 324/34, 325/34 and 323, IPC which was challenged on the ground that there was no common intention shared by the Appellant with the other accused as death of persons was caused by axe and firearm and not by lathi, which was admittedly carried by the Appellant. Further, it was argued that all three witnesses were related and there was no examination of any independent witnesses. Dismissing the appeal, the court held that the sequence of events and cumulative appreciation of evidence, evidently established a common intention between all the accused. Further, it was held that the failure to examine any independent witness is inconsequential as the quality of evidence is more important than the number of witnesses. [Key Words: conviction, Sections 302/34, 324/34, 325/34 and 323 IPC, common intention, independent witness] [Coram: RF Nariman, J., Navin Sinha, J.]
In Anversinh @ Kiransinh Fatesinh Zala v. State of Gujarat, the challenge was to the setting aside of the conviction by the High Court under Section 376 IPC, but upholding the charge of kidnapping under Sections 363 and 366 IPC. On the issue whether a consensual affair can be a defense against the charge of kidnapping of minor, the Court held that the element of ‘enticement’ was important in a charge of kidnapping. In the facts, the Court held that there was indeed such an element in the present case, and the girl being a minor, the factum of consensual affair, or the minor’s consent, was not a defense in the offence of kidnapping. On the second question of punishment, taking into account the principles laid down in Surendra Singh (2015) 1 SCC 222, the Court reduced the sentence of five years RI into the period of incarceration already undergone by the accused. In doing so, what weighed with the Court was that no force was used in the act of kidnapping, the young age of the accused, protracted trial and delays and no grotesque use of power or status. [Key Words: Sections 361, 363, 366, 376 IPC, consensual affair, minor girl, consent, reduction of sentence, deterrence and correction] [Coram: N.V. Ramana, J., S. Abdul Nazeer, J., Surya Kant, J.]
In Lakhvir Singh etc. v. The State of Punjab & Anr., the appellants were convicted under Section 397 of the IPC were sentenced to Rigorous Imprisonment of 7 years each. The Appellants sought the benefit of the Probation of Offenders Act, 1958 (“the Act”). While the Respondent State submitted that the courts could not impose less than the mandatory minimum sentence prescribed by the statute, the Court relied on Ishar Das (1973) 2 SCC 65 where it was held that the non-obstante clause in Section 4 of the Act reflected the intent of the legislation to give effect to the Act not withstanding any other law in force at that time. The Court also noticed its judgment in CCE v. Bahubali (1979) 2 SCC 279, wherein it was held that the Act may not apply to cases where in in the offence carries a minimum sentence under a special law enacted after 1958 and also containing a non-obstante clause. The Court concluded that benefit of the Act is thus not excluded by the minimum sentence under Section 397 of the IPC. The Court taking note of the appellants settlement with the victim and their good conduct directed their release on probation under Section 4 of the Act upon furnishing a bond and two sureties to ensure they maintain peace and good behavior for the remainder of their sentence. [Key Words: Probation, Section 4, Probation of Offenders Act 1958, applicability] [Coram: Sanjay Kishan Kaul, J., Hrishikesh Roy, J.]
In Deputy General Manager (Appellate Authority) and Others v. Ajai Kumar Srivastava, appeals had been filed against a judgment of the High Court of Allahabad. The accused had a criminal case instituted for him against him for the offences under Sections 420, 467, 468, 471 read with Section 120-B IPC and S. 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act 1988. After holding a disciplinary enquiry, the enquiry officer, in accordance with the procedure under the Bipartite Settlement applicable, held that certain charges had been proved. The Court reiterated that the power of judicial review of the Constitutional Courts is an evaluation of the decision-making process and not the merits of the decision itself and that it cannot be extended to the examination of correctness or reasonableness of a decision of authority as a matter of fact. The Court held that when a disciplinary enquiry is conducted for alleged misconduct against a public servant, the Court has to determine whether the enquiry was held by the competent authority, whether rules of justice were complied with, whether the findings or conclusions were based on some evidence and the authority had the power and jurisdiction to reach findings of fact or conclusion. The Court also held that while strict rules of evidence are not applicable to departmental enquiry proceedings, mere conjectures or surmises cannot sustain findings of guilt. [Key Words: State Bank of India Act 1955, Misconduct in discharge of duties, misappropriation of bank’s money by affording fake credits in various accounts] [Coram: L Nageswara Rao, J., Hemant Gupta, J., Ajay Rastogi, J.]
In Anjali Brahmawar Chauhan v. Navin Chauhan, the Bench had earlier dismissed the wife’s transfer petition wherein she had prayed for the transfer of cases from Gautambudh Nagar (UP) to Saket (Delhi). However, the wife/Petitioner later filed a review petition on the ground that the transfer petition ought to be allowed since she would have to travel despite the ongoing pandemic to Noida as videoconferencing was not allowed in matrimonial matters as per the Court’s judgment dated 9.10.2017 in Santhini v. Vijaya Venkestesh. Considering the prevailing pandemic, the Bench directed that the “Family Court, District Gautambudh Nagar, UP to conduct the trial through video conferencing”. [Key Words: Covid-19, transfer petition, video conferencing, review] [Coram: S.A. Bobde, CJI., L. Nageswara Rao, J., Vineet Saran, J.]
In Dipika Jagatram Sahani v. Union of India and others, a PIL under Article 32 of the Constitution had been filed questioning the closure of Anganwadi Centers across the country. The Court noted that it was the statutory obligation of states and the centre to provide nutritional support to pregnant women, lactating mothers, children and to take steps to identify and provide meals for children who suffer from malnutrition. The Court noted that while the Central government as well as the State governments had issued necessary guidelines for implementing statutory requirements, beneficiaries who are from the vulnerable class are not equipped with suitable mechanisms to raise non-implementation issues. The Court held that unless there were specific reasons for not opening, all Anganwadi centres beyond containment zones should be functional. [Key Words: National Food Security Act 2013, Supplementary Nutrition (under the Integrated Child Development Services Scheme) Rules, 2020][Coram: Ashok Bhushan, J., R Subhash Reddy, J., MR Shah, J. ]
Service and Administrative Law
In Ashok Kumar and Ors. Etc. Etc. v. State of Jammu and Kashmir & Ors., the Bench held that it was permissible under Articles 14 and 16 to differentiate between people drawn from different sources and integrated into one class based on educational qualifications. In fact, higher educational qualification could be the basis for barring promotion and restricting the scope of promotion. But the restriction could not be allowed to seriously jeopardise the chances of promotion. [Key Words: homogenous group, reasonable classification, Section 108 of the Constitution of Jammu & Kashmir, Article 229 of the Constitution of India] [Coram: S.A. Bobde, CJI., A.S. Bopanna, J., V. Ramasubramanian, J.]
In Indian Bank and Another v. Mahaveer Khariwal, the Bench found that decision of the Bank rejecting the employee’s voluntary retirement application with request for curtailment of notice of 3 months was bad in law and not in consonance with Pension Regulations, 1995 inasmuch as the order was not on merits and dated on the last day of the third month i.e. the 90th day from the date of submitting the voluntary retirement application. The Bench also affirmed the finding of the High Court that the employee was neither on deputation nor on study leave. [Key Words: deputation, repatriation, voluntary retirement, transfer] [Coram: Ashok Bhushan, J., R. Subhash Reddy, J., M.R. Shah, J.]
In High Court of Kerala v. Reshma A. & Others etc., the appellant, administrative side of the High Court was aggrieved by the judgment of the division bench of the High Court confirming the judgment of the Single Judge, holding that on a literal reading of amended Rule 7(2) of the Kerala Judicial Service Rules 1991 (“1991 Rules”), vacancies for the post of Munsif-Magistrate which arise within a year of the approval of the selection list by the Governor should be filled up from amongst candidates on the list even though this exceeds the number of probable vacancies which were notified, unless a fresh list is notified within a year. The Court relied on the constitutional principle as elucidated in Prem Singh (1996) 4 SCC 319 to state that when an authority which makes a selection advertises a specific number of posts, the process of selection cannot ordinarily exceed the number of posts that have been advertised. The Court noted that the word “probable” has to be interpreted with reference to constitutional requirements under Article 14 and Article 16 and cannot be interpreted to include vacancies of a future year. The Court held that vacancies arising in a subsequent year, not being advertised in the selection process cannot be filled from the selection list from that year. The Court adopted a harmonious interpretation of Rules 7 (1), 7 (2), consistent with the Article 142 directions in Malik Mazhar Sultan (3) (2008) 17 SCC 703 to allow the appeals and set aside the judgment of the division bench of the High Court. [Key Words: Malik Mazhar Sultan (3), future vacancies, judicial appointments, probable vacancies, Kerala Judicial Service Rules, 1991] [Coram: D.Y. Chandrachud, J., Indira Banerjee, J.]
In The Chairperson, Governing Body Daulat Ram College v. Dr Asha, appeals had been filed against a judgment of the division bench of the Delhi High Court concerning whether the Principal or the Governing Body of the college has the power to appoint the Warden of the Hostel of the College. The Court examined a 1987 letter of the University Grants Commission and held that it was merely an approval to raising the funding pattern of employees and did not confer any power on the Principal to appoint the warden. However, as the Principal was entrusted with the overall internal administration of the college, the Court held that the Governing Body, while making appointments of the warden, should give due weight to the recommendation of the Principal. [Key Words: UGC, Power of appointment of hostel warden] [Coram: Ashok Bhushan, J., MR Shah, J.]
In M/s Padia Timber Company (P) Ltd. v. The Board of Trustees of Vishakhapatnam Port Trust through its Secretary, the question was whether the acceptance of a conditional offer with a further condition results in a concluded contract, irrespective of whether the offeror accepts the further condition proposed by the acceptor. Relying on Haridwar Singh AIR 1972 SC 1242, the Court held that an acceptance of an offer with a variation is no acceptance and that where the acceptance is conditional, the offer can be withdrawn until absolute acceptance has taken place. The Court held that as the respondent had imposed a further condition, it could not be said to have concluded a contract. Therefore, as there was no concluded contract, there could not be a question of breach of the contract. [Key Words: Acceptance of Offer, Modification of Offer, Conditional Offer, Section 7 of the Indian Contracts Act 1832] [Coram: Navin Sinha, J., Indira Banerjee, J.]
In State of Uttarakhand and Ors. v. Smt. Sureshwati, the reinstatement of the Respondent and reversal of the award of the Labour Court by the High Court of Uttarakhand was challenged. The Respondent had initially been engaged as an Assistant Teacher and thereafter as a clerk with effect from 1994. On 15.07.2006, the Respondent filed a complaint of illegal retrenchment while it was alleged by the Petitioner that the Respondent had abandoned her service since 01.07.1997 when she got married and moved to Dehradun. The Labour Court passed an award against the Respondent by stating that there was sufficient evidence to prove abandonment of services by the Respondent. Thereafter, the High Court set aside the award passed by the Labour Court on the sole ground that no disciplinary enquiry was held by the school regarding her alleged abandonment of service. The Bench, however, disagreed with the same and held that it is open for an employer who has failed to make an enquiry before dismissal or discharge of a workman, to justify the action before the Labour Court by leading evidence before it. The Bench, based on the evidence led before the Labour Court, found that the school had sufficiently established that the Respondent had abandoned her service in 1997 and the Respondent failed to discharge the onus to prove that she had worked for 240 days in the preceding 12 months prior to her alleged termination on 8.3.2006. [Key Words: reinstatement, labour court, reversal of award, illegal retrenchment, abandonment of service, failure to discharge onus to prove employment] [Coram: L. Nageswara Rao, J., Navin Sinha, J., Indu Malhotra, J.]
In The Mavilayi Service Cooperative Bank Ltd. v. Commissioner of Income Tax, Calicut and Anr., an important question arose as to the deductions that can be claimed under Section 80P(2)(a)(i) of the Income Tax Act 1961, particularly after the introduction of Section 80P(4) with effect from 01.04.2007. The Court held that the limited object of Section 80P(4) is to exclude co-operative banks that function at par with other commercial banks, i.e., banks which lend money to members of the public. On principle, it was held that a proviso cannot be used to cut down the language of the main enactment. Thus, it was held that Section 80P, being a benevolent provision to encourage and promote the credit of the co-operative sector, must be read liberally, and if there is ambiguity, in favour of the assessee. [Key Words: Deductions, Income Tax Act, 1961, Kerala Co-operative Societies Act, 1969, primary agricultural credit societies, marginal note, liberal interpretation] [Coram: R.F. Nariman, J., Navin Sinha, J., K.M. Joseph, J.]
In M/s Vellanki Frame Works v. The Commercial Tax Officer, Vishakapatnam, the Court held that the basic principles for determining when a sale or purchase of goods takes place in the course of import or export out of the territory of India, only if the sale or purchase either occasions such import or is effected by a transfer of documents of title to the goods after the goods have crossed the customs frontiers of India. Further, for there to be a sale in the course of import, there must be a sale, the goods must actually be imported into the territory of India, that sale must be part and parcel of the import. The Court held that in the process of importation, the importer includes any owner or any other person holding himself to be the importer, but only between the time of such importation and the clearance for home consumption. Therefore, the Court agreed with the High Court’s holding that the definition of importer cannot be used to usurp the identity of an importer from the person who filed the bill of entry. [Key Words: Sales in the course of import, Inter-State Sales, Sections 2, 3, 5(2) of the Central Sales Tax Act 1956, Article 286 of the Constitution of India, Sections 2, 30, 47 of the Customs Act, K Gopinathan Nair v. State of Kerala (1997) 10 SCC 1 ][Coram: AM Khanwilkar, J., Dinesh Maheshwari, J.]
In Chintpurni Medical College and Hospital and Anr v. Union of India and Anr., the Court dismissed the appeal filed by the Appellant against the order passed by the Delhi High Court. The Delhi High Court had upheld the rejection given by the Medical Council of India (“MCI”) to the Appellant to their request for permission to admit 150 students in a MBBS course for the academic year 2019-20. It was argued by the Appellant that the MCI had recommended debarring of the Appellant for two years i.e. 2017-18 and 18-19 and hence they should be allowed to take students for the academic year 2019-20. The Court rejected this argument since the Appellant had not carried out any actions to remedy the deficiencies that were brought forth by the MCI and agreed with the High Court that the Appellant was not entitled to take any admission for 2019-20 or 2020-21 without physical inspection by MCI. The Bench further agreed with the High Court that since the last date for granting permissions for the academic year 2019-20 was 31.08.2020, the same had become infructuous and thus for the next academic year 2020-21, the Appellant was at liberty to apply for renewal of application. [Key Words: debarring, rejection of admission of students in MBBS course, deficiencies, infructuous] [Coram: L Nageswar Rao, J., S. Abdul Nazeer, J., Indu Malhotra, J.]
In Kirti & Anr. Etc. v. Oriental Insurance Company Ltd., appeals had been filed against a judgment of the Delhi High Court which had reduced the compensation awarded by the Motor Accident Claims Tribunal from Rupee 40.71 Lakhs to Rupee 22 Lakhs. The Court held that merely because the deceased’s mother died subsequently ought not to be a reason for reduction of motor accident compensation, as claims and legal liabilities crystallize at the time of the accident itself. The Court also held that where family of the deceased consisted of septuagenarian parents, 2 toddlers, and additionally, as the accident also extinguished the life of the fetus inside the deceased’s womb, the appropriate deduction for personal expenses for the deceased couple ought to be 1/4th and not 1/3rd as applied by the Tribunal and the High Court. The Court also held that where no document evidencing the income of the deceased as a teacher was provided, since, from witness statements and documentary evidence, it was clear that the deceased was educationally qualified and skilled and maintained a reasonable standard of living, his monthly income ought to be calculated at least at the minimum wage of Rupees 6,197 as applicable to skilled workers during the relevant time period in his state. The Court also held that as both deceased were below 40 years and were not established to be permanent employees, future prospects of 40% must be paid. [Key Words: Section168 of Motor Vehicles Act 1988, Pranay Sethi 92017) 16 SCC 680, Computation of Income, Future Prospects, Hem Raj v. Oriental Insurance Co. Ltd. (2018) 15 SCC 564] [Coram: NV Ramana, J., S Abdul Nazeer, J., Surya Kant, J.]
In Assam Industrial Development Corporation Ltd v. Gillapukri Tea Company Ltd and Ors., the issue before the court was as to the date of passing of an award with respect to the acquisition proceedings of the first respondent’s land. It was argued by the Appellant that the award was approved by the State on 05.03.2010 and not 04.01.2014 as alleged by the first respondent, and hence, the first respondent was not eligible to receive compensation in accordance with The Right to Fair Compensation And Transparency In Land Acquisition, Rehabilitation And Resettlement Act, 2013. The Court allowed the appeal and held that even though the letter dated 05.03.2010 mentions a land acquisition estimate and not an award, a combined reading of the preceding letter dated 30.01.2010, in which an approval of award was sought, and the subsequent conduct of the parties made it clear that the award stood approved on 05.03.2010. The Bench disregarded the approval of the second award on 04.01.2014 by relying on its judgment in D. Hanumanth SA (2010) 10 SCC 656 to state that it was not possible for the State Government to reinitiate acquisition proceedings in respect of land which had already been acquired. [Key Words: land acquisition, compensation, date of award, reinitiating acquisition proceedings] [Coram: S Abdul Nazeer, J., and Sanjiv Khanna, J.]
In Tamil Nadu Housing Board v. Abdul Salam Sarkar (Dead) and Others, the Court held that merely because the claim for grant of interest on solatium was made after the execution petition was closed and enhanced compensation was deposited would not disentitle the claim for grant of interest on solatium, as the claim had not been rejected at any antecedent stage. [Key Words: Land Acquisition Act 1894, Gurpreet Singh (2006) 8 SCC 457, Sunder v. Union of India (2001) 7 SCC 211, grant of interest on solatium at the rate of 12% per annum] [Coram: DY Chandrachud, J., Sanjiv Khanna, J.]
In Bajranga (Dead) by LRs versus v. The State of Madhya Pradesh, the Respondent being the competent authority under the Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960 (“Ceiling Act”), had passed an order under Section 11 (6) of the Ceiling Act declaring about 10 acres of land to be in excess of the ceiling of 54 acres and initiated the process of for taking over possession and eviction. The appellant filed a suit for declaration and permanent injunction against the competent authority. The Court considering the appeal against the judgment of the High Court in the Second Appeal, noted that the appellant had in the return filed under Section 9 of the Ceiling Act had disclosed the pending suit against the Appellant by one Jenobai seeking declaration of title in respect of about 17 bighas of land which the Civil Court later decreed. The Court, setting aside the impugned judgment, held that the Respondent had failed to serve the draft statement of land held in excess, to Jenobai, who was an interested person under Section 11 (3) of the Ceiling Act. The Court also noted that the acquisition proceedings ought to have been kept in abeyance in light of Section 11 (4) of the Ceiling Act, till the disposal of Jenobai’s civil suit, whose judgement would be binding on the Competent Authority. The Court noted that in light of the final decree in favour of Jenobi, the Appellant did not hold excess land under the Ceiling Act, thus the question of taking over the excess did not arise. The Court noted that the issue of jurisdiction of the Civil Court was already decided by the Court in Competent Authority, Tarana District, Ujjain (M.P) 1991 Supp (2) SCC 631.[Key Words: Madhya Pradesh Ceiling on Agricultural Holdings Act 1960, Section 11(3), 11(4), 11 (6), surplus land, acquisition proceedings] [Coram: Sanjay Kishan Kaul, J., Dinesh Maheswari, J., Hrishikesh Roy, J.]
In Rama Narang vs Ramesh Narang and Others, the petitioner filed the contempt petition against the Respondents asserting that the Respondents had violated the undertakings before and consent orders passed by the Supreme Court, by instituting proceedings before the Company Law Board against the Petitioner. The Court relied on Pratap Singh and Another v. Gurubaksh Singh 1962 SCR Supp (2) 838 and also Mehar Rusi Dalal (2004) 5 SCC 119 to state that taking recourse to statutory remedy would not amount to contempt. The Court also referred to Niaz Mohammed (1994) 6 SCC 332 to reiterate that the Court must satisfy itself not only the disobedience of any judgment, decree, or order but also that such disobedience was willful and intentional. Holding that the Petitioner had failed to make out a case of willful, deliberate and intentional disobedience of the Court, dismissed the Contempt Petition. [Key Words: Contempt, right to legal remedy, willful disobedience] [Coram: A.M. Khanwilkar. J., B.R. Gavai. J]
Insolvency and Bankruptcy Code
In Manish Kumar vs Union of India and Anr, the petitioners challenged the constitutional validity of the Insolvency and Bankruptcy Code (Amendment) Act 2020, which, inter alia, inserted three provisos to Section 7(1), an additional explanation to Section 11, and Section 32A in the Insolvency and Bankruptcy Code 2016. In regard to the second proviso to Section 7, the Court noted that mere difficulty in complying with the provision (requiring 10% of the allottees to initiate proceedings) cannot be grounds for striking down the law. The Court noticed its judgment in State of Gujarat and Another vs. Shree Ambica Mills (1974) 3 SCC 656 to note that the legislature is granted a wider latitude in statutes dealing with economic measures. The Court clarified that the threshold would have to be met as on the date of the application. The Court upheld the requirement of the allottees being from the same real estate project as opposed to allottees from different projects, noting that such requirement was in line with the object of the Code. The Court distinguished Homebuyers from other Financial Creditors on the basis of numerosity, heterogeneity and individuality in decision making, while noting that creation of a sub-class on a rational basis does not impinge on Article 14 of the Constitution. The Court also upheld first Proviso to Section 7, Explanation II to Section 11, Section 32 A and also the third Proviso to Section 7. [Key Words: Section 7(1) Section 11, Section 32A, the Insolvency and Bankruptcy Code 2016, Constitutional Validity, Article 14, Economic Laws, Home Buyer, Allotee, Financial Creditor, threshold,] [Coram: R.F. Nariman, J., Navin Sinha, J., K.M. Joseph J.]
Himachal Pradesh Bus Stand Management and Development Authority v. The Central Empowered Committee Etc. & Ors., arose out of Section 22 of the NGT Act, challenging a judgment passed by the NGT. The Court held that the construction of the Hotel-cum-Restaurant structure in the Bus Stand Complex is illegal and constitutes a brazen violation of law. The permissions were granted merely for construction of a parking space and bus stand at Mc Leod Ganj. The Court was guided by its earlier judgments in Hanuman Laxman Aroskar (2019) 15 SCC 401, Sudhakar Hegde 2020 SCC OnLine SC 328 and Lal Bahadur (2018) 15 SCC 407 on the importance of protecting the environmental rule of law. On the ancillary issue of whether the NGT could have adjudicated upon a violation of the Himachal Pradesh Town and Country Planning Act, it was held that the question was academic in nature since the NGT had grounded its decision in the violation of Section 2 of the Forest Act, which is an Act present within Schedule I of the NGT Act. [Key Words: Section 2, Forest Act, Environmental Rule of Law, demolition of illegal construction, MoEF, felling of trees] [Coram: D.Y. Chandrachud, J., Indu Malhotra, J., Indira Banerjee, J.]
In National Highways Authority of India v. Pandarinathan Govindarajulu & Anr. The appeals arose from the Judgement of the High Court holding that it was necessary to obtain Environmental Clearance for the expansion of the National Highways 45-A covering a stretch of 179.5Kms. The Court considered Item 7 (f) pertaining to Highways in the Schedule to the Notification dated 14.09.2006 issued by the Ministry of the Environment and Forests under Sub-Clause (i) and Sub-Clause (v) of Sub-Section (2) of Section 3 of the Environment (Protection) Act 1986 read with Clause (b) of Sub Rule (3) of Rule 5 of the Environment (Protection) Rules 1986 as amended by the Notification dated 22.08.2013. The Court held that plain reading of Item 7 (f) makes it evident that Environmental Clearance is necessary only when a project involves expansion of the National Highway of more than 100 Kms and also involves additional right of way or land acquisition greater than 40 meters on existing alignments and 60 meters on realignment or bypasses. In the present case, although the project was of more than 100 Kms, it did not involve an additional right of way to the extent stated in the said notification. Thus, the Court allowed the appeals and set aside the judgements of the High Court. However, the Court agreed with the High Court to the extent that projects of greater than 100 Kms cannot be permitted to be divided into smaller packages in order to evade the requirement of obtaining an Environmental Clearance and directed the Ministry of Environment, Forest and Climate Change, Government of India to examine when segmentation of National Highway Projects of over 100 Kms can be permissible. [Key Words: Environment (Protection) Rules 1986, the Environment (Protection) Act 1986, Environmental Clearance, Highway Projects] [Coram: L. Nageswara Rao, J., Hemant Gupta, J., Ajay Rastogi, J.]
Code of Civil Procedure
In Venigalla Koteswaramma v. Malampati Suryamba & Ors., the appellant who was the plaintiff in the suit for partition had arrayed her three siblings as Defendants No. 1-3 along with the brother of her deceased stepmother as defendant No. 4 in addition to other defendants. The defendants No.1-3 did not contest the suit and defendant No. 2-3 filed an admission by the written statement. Defendant No.4 contested the suit and also stated that the deceased stepmother had executed a will and also an agreement to sell in respect of one of the suit properties. The genuineness of the purported will and agreement to sell also came to be at issue in the trial. The Trial Court decreed in favour of the appellant-plaintiff and also held the purported will and agreement to sell as not being not genuine. In the appeal filed by defendants 15-16, the High Court partly allowed the appeal holding that although the purported will could not be genuine, the agreement to sell was genuine. Notably, the defendant no.2 (Respondent No.3 in the appeal) expired during the pendency of the appeal and no application was made for substitution of his legal heirs. The Supreme Court, after considering Rule 4 read with Rule 11 under Order XXII of the CPC, held that the first appeal as against Defendant No.2 had abated due to non-impleadment of LRs. The Court further relied on its judgments in State of Punjab v. Nathu Ram AIR 1962 SC 89 and also its observations in the Constitution Bench judgement in Sardar Amarjit Singh Kalra (dead) by LRs (2003) 3 SCC 272, to state that where in the appeal is from a joint/ inseparable decree, affecting the rights of the other respondents, abatement against one such respondent will result in abatement against all the respondents. Thus, the Court held that the decree by the trial court had attained finality in favour of the appellant-plaintiff. The Court independently came to the conclusion that the High Court had also erred in holding the purported agreement to sell to be genuine. [Key Words: Abatement of appeal, death of respondent, substitution by Legal Representatives, Rule 4, Order XXII, Civil Procedure Code] [Coram: Sanjay Kishan Kaul, J., Dinesh Maheshwari, J., Hrishikesh Roy, J]
Practice and Procedure
In In Re: Advocate On Record Includes A Proprietary Firm Etc., the short question before the court was to consider whether an Advocate on Record can have entry in Advocate on Record register in the form of his style of carrying on profession i.e. instead of ‘XYZ’ as ‘Law Chambers of XYZ’. The grievance of the Petitioner arose out of the fact that if a partnership firm can be registered and operate under Order IV of the Supreme Court Rules 2013, the same should also be applicable for a sole proprietorship. The Bench agreed with the submissions of the Amicus Curiae that different styles of writing names for Advocate on Record can only be done by amending the Rules, which the Court was not willing to interfere with in the present case. However, the specific plea of the Petitioner to state “Law Chambers of Siddharth Murarka sole proprietor Siddharth Rajkumar Murarka” along with his registration number in his letter head and while filing the Vakalatnama, was a style which was permitted by the Bench. [Key Words: Advocate on Record, law chambers, proprietary firm, Order IV Supreme Court Rules 2013] [Coram: Sanjay Kishan Kaul, J., Dinesh Maheshwari, J., Hrishikesh Roy, J.]
Parliament Building/Central Vista
In Rajeev Suri v. Delhi Development Authority & Ors. i.e. the Central Vista Case, the Supreme Court rendered a 2:1 judgment where the leading opinion was authored by Khanwilkar, J., (concurred with by Maheshwari, J.) and the dissent was penned by Khanna, J.
The majority held as follows:
1. There were no infirmities in the grant of “No Objection” by the Central Vista Committee., in the grant of “approval” by the Delhi Urban Art Commission as per the Delhi Urban Art Commission Act 1973, in the grant of “Prior approval” by the Heritage Conservation Committee (HCC) under clause 1.12 of the Building Byelaws for Delhi 2016.
2. The exercise of power by the Government of India under Section 11A(2) of the DDA Act 1957 was just and proper, and thus the modifications regarding change in land use of plot Nos. 2 to 8 in the Master Plan of Delhi, 2021/Zonal Development Plan for Zone-D and Zone-C vide impugned notification dated 20.3.2020 were valid.
3. The recommendation of Environmental Clearance (EC) by Expert Appraisal Committee (EAC) and grant thereof by MoEF was just, proper and in accordance with law including the 2006 Notification. However, the same was upheld along with mitigating measures therein to be followed by the project proponent in their letter and spirit.
4. The project proponent may set up smog tower(s) of adequate capacity, as being integral part of the new Parliament building project; and additionally, use smog guns at the construction site throughout the construction phase is in progress on the site.
5. MoEF ought to consider issuing similar general directions regarding installation of adequate capacity of smog tower(s) as integral part in all future major development projects whilst granting development permissions, particularly in cities with bad track record of air quality, including to use smog guns during the construction activity of the Project is in progress.
6. The stage of prior permission under clause 1.3 of the Building Bye Laws of the Heritage Conservation Committee (HCC), is the stage of actual development/redevelopment etc. i.e. when the work is to commence and not the incipient stage of planning and formalisation of the Project. Accordingly, the Respondents ought to obtain the prior permission of the designated Authority before actually starting any development/redevelopment work on the stated plots/structures/precincts governed by the heritage laws including on plot No. 118.
7. The selection/appointment of the Consultant, in light of the limited examination warranted in this case, is held to be just and proper.
Khanna, J.’s dissent was limited to the aspects of “public participation on interpretation of the statutory provisions, failure to take prior approval of the Heritage Conservation Committee and the order passed by the Expert Appraisal Committee”, and neither on the aspects of “Notice inviting Bid, award of consultancy and the order of the Urban Arts Commission, as a standalone and independent order” nor the final conclusions relating to them. Noting that that proliferation of delegation was eroding public participation, the doctrine of “procedural legitimate expectation” was invoked to hold that there was inadequate public participation, discussion and that Section 45 of the Delhi Development Act stood violated as objectors were not accorded enough time to present and appear to state their point of view.
[Key Words: Democratic Due Process and Judicial Review, Rule of law, Need for Heightened Judicial Review, Constitutionalism, Participatory Democracy in India, Central Vista Committee, Zonal Plan and Master Plan, Change in land use, no-objection, availability of Information in Public Domain, public trust, misuse of PILs, no difference test, procedural legitimate expectation, mechanical grant without application of mind, reasonableness, proportionality, moderate interpretation of the necessity test, pure theory of law, hierarchy of laws, principles of natural justice, openness of governance, public consultation, pre-emptory language, Gunning Principles of 1985, public participation, public duty, serious general inconvenience, principles of statutory interpretation, substantial compliance, formative and constructive participation, deliberative democracy, indirect public participation, good governance principles, ‘Contemporanea exposition est optima et fortissimo in lege’, doctrine of public trust, degree of immunity, comma, directory and mandatory]