Supreme Court Digest, 1 to 15 September 2023

Stpl law

October 4, 2023
12:03 pm

Supreme Court Digest, 1 to 15 September 2023

Nominal Index

Valliammai Vs. K.P. Murali And Others
2023 STPL(Web) 263 SC: Suit for specific performance – Limitation

Ameena Begum Vs. State of Telangana & Ors.
2023 STPL(Web) 234 SC : Preventive Detention – Challenge as to

Axis Bank Limited Vs. Naren Sheth & Anr.
2023 STPL(Web) 264 SC: Limitation –Acknowledgement

Bachhu Yadav Vs. Directorate Of Enforcement Government Of India Represented By Its Assistant Director (Pmla) & Anr.
2023 STPL(Web) 250 SC: Bail – Money Laundering

Balwantbhai Somabhai Bhandari Vs. Hiralal Somabhai Contractor (Deceased) Rep. By Lrs. & Ors.
2023 STPL(Web) 253 SC: Contempt of Court – Wilful Breach

Bhaktu Gorain & Anr. Vs. State of West Bengal
2023 STPL(Web) 262 SC: Murder – Common intention

B.C. Nagaraj & Anr. Vs. State Of Karnataka & Ors.
2023 STPL(Web) 269 SC: Service Law – Pay Parity

Brihan Karan Sugar Syndicate Private Limited Vs. Yashwantrao Mohite Krushna Sahakari Sakhar Karkhana
2023 STPL(Web) 270 SC: Infringement of copyright – Stay of execution of decree

CBI Vs. R.R. Kishore
2023 STPL(Web) 258 SC: Law Declared unconstitutional – Null and Void ab initio

Chen Khoi Kui Vs. Liang Miao Sheng & Ors.
2023 STPL(Web) 266 SC: Cancellation of registration of society – Power for

Derha Vs. Vishal & Anr.
2023 STPL(Web) 229 SC: Partition suit – Coparcenary properties

EVA Agro Feeds Private Limited Vs. Punjab National Bank And Anr.
2023 STPL(Web) 254 SC: Corporate insolvency resolution process – Auction sale of property

Fulmati Dhramdev Yadav Vs. New India Assurance Co. Ltd.
2023 STPL(Web) 232 SC: Workmen Compensation – Appeal – Substantial question of law

Harendra Rai Vs. State Of Bihar & Ors.
2023 STPL(Web) 241 SC: Sentence – Damages

Harilal Etc. Vs. State Of Madhya Pradesh (Now Chhattisgarh)
2023 STPL(Web) 243 SC: Murder – Conviction set aside

Javed Shaukat Ali Qureshi Vs. State Of Gujarat
2023 STPL(Web) 265 SC: Appeal against conviction – Identification first time in Court

Hymavathi Vs. State of Andhra Pradesh & Anr.
2023 STPL(Web) 252 SC: Dishonour of cheque – Limitation

Kerala State Co-Operative Agricultural And Rural Development Bank Ltd. Vs. Assessing Officer, Trivandrum And Ors.
2023 STPL(Web) 271 SC: Income Tax – Co-operative societies providing credit facility

Lal Bahadur Shastri Educational Society & Anr. Vs. Delhi Development Authority & Ors.
2023 STPL(Web) 240 SC: Refund – Claim for interest pendente lite

L.R. Patil Vs. Gulbarga University, Gulbarga
2023 STPL(Web) 236 SC : Service Law – Lien

Life Insurance Corporation Of India Vs. Dravya Finance Pvt. Ltd. & Ors.
2023 STPL(Web) 256 SC: Assignment of a life insurance policy – Levy of Registration charges

Loonkaran Gandhi (D) Thr. Lr. Vs. State Of Maharashtra And Ors.
2023 STPL(Web) 257 SC: Land acquisition – Lapse of proceedings

Munna Pandey Vs. State of Bihar
2023 STPL(Web) 233 SC: POCSO – Serious lapses in investigation

Makkella Nagaiah Vs. State of Andhra Pradesh
2023 STPL(Web) 245 SC: Juvenile Justice – Plea of juvenility

Ramkumar Vs. State Rep. By Inspector Of Police
2023 STPL(Web) 247 SC: Murder – Nature of offence

Nhpc Ltd. Vs. State Of Himachal Pradesh Secretary & Ors.
2023 STPL(Web) 248 SC: Passenger Tax – Free Bus Service to Employees

PACL Vs. Central Bureau of Investigation
2023 STPL(Web) 237 SC: Bail – Siphoned of Big Money in Schemes

Pallavi Vs. Union Of India & Ors.
2023 STPL(Web) 228 SC: Education – Overseas Citizen of India card (OCI) holder

Pradeep Rameshwar Sharma Vs. National Investigating Agency & Anr.
2023 STPL(Web) 239 SC: Bail – Unlawful Activities

Pramod Kumar Mishra Vs. State Of U.P.
2023 STPL(Web) 230 SC : Attempt to murder – Quantum of sentence

Purushottam Bagh Sahkari Awas Samiti Ltd. Vs. Sri Shobhan Pal Singh
2023 STPL(Web) 235 SC: Housing Society – Allotment of plot

Prakash Bang Vs. Glaxo Smithkline Pharmaceuticals Ltd. & Anr.
2023 STPL(Web) 244 SC: Defective vaccine – Burden of proof

Principal Commissioner Of Income Tax-10 Vs. M/S Krishak Bharti Cooperative Ltd.
2023 STPL(Web) 272 SC: Income Tax – Double Taxation Avoidance Agreement

Roopa Soni Vs. Kamalnarayan Soni
2023 STPL(Web) 249 SC: Divorce – Ground of cruelty

Rupesh Manger Vs. State Of Sikkim
2023 STPL(Web) 267 SC: Murder – Plea of insanity

Rohit Chaudhary & Anr. Vs. M/S Vipul Ltd.
2023 STPL(Web) 251 SC: Consumer – Commercial purpose

Sreenivasa Vs. State of Karnataka
2023 STPL(Web) 246 SC: Circumstantial evidence – Evidence of last seen

Revanasiddappa & Anr. Vs. Mallikarjun & Ors.
2023 STPL(Web) 227 SC : Hindu Succession – Property of the Parents

Rajendra Prasad & Ors. Vs. State Of Uttar Pradesh & Ors.
2023 STPL(Web) 231 SC: Service Law – Promotion

Rps Infrastructure Ltd. Vs. Mukul Kumar & Anr.
2023 STPL(Web) 259 SC: Corporate Insolvency Resolution Process – Delay in Claim

Religare Finvest Limited Vs. State Of Nct Of Delhi & Anr.
2023 STPL(Web) 260 SC: Quashing of criminal proceedings – No Criminal Liability

State Of Punjab And Others Vs. Jaswant Singh
2023 STPL(Web) 238 SC : Service Law – Discharge from service

State Of West Bengal And Another Vs. M/S. Chiranjilal (Mineral) Industries Of Bagandih And Another
2023 STPL(Web) 261 SC: Mining lease – Minor mineral ‘Dolomite’

Union Of India & Ors. Vs. Manjurani Routray & Ors.
2023 STPL(Web) 226 SC : Service Law – Relief beyond pleadings

Union Of India & Others Vs. Jogeshwar Swain
2023 STPL(Web) 242 SC: Service Law – Dismissal

Union Territory Of Ladakh & Ors. Vs. Jammu And Kashmir National Conference & Anr.
2023 STPL(Web) 255 SC: Election – Allocation of Symbol

Vasant Nature Cure Hospital & Pratibha Maternity Hospital Trust & Ors. Vs. Ukaji Ramaji-Since Deceased Through His Legal Heirs & Anr.
2023 STPL(Web) 268 SC: Practice and Procedure – Successive vexatious applications for restoration of review petition

Subject Index

Civil

U.P. Cooperative Societies Act, 1965, Section 70 – Bye-laws of Purushottam Bagh Sahkari Awas Samiti Ltd., clause 5(1) and clause 3(10) – Housing Society – Allotment of plot – Declaring the sale deed dated 14.07.1983 to be null and void – Challenge as to –High Court on challenge in writ jurisdiction set aside both order of the appellate court and the award and it was held that the sale deed dated 14.07.1983 cannot be declared to be null and void – On perusal of the Award of the arbitrator and the order of the appellate authority, it is evident that the arbitrator had not recorded any finding that ‘K’ had given a false affidavit or that he owned a house or a plot in the area of operation of the society – The only finding recorded by the arbitrator is that at the time of allotment he had given his address to be F150 Kamla Nagar, Agra where even now his successors are residing – Held that such finding falls short of saying that the address at which he was living was a house which belonged to him or his family members as defined under the bye-laws or that his successors are the owners of the said house in their own capacity – Mere living in a particular house by itself would not mean that the said house is under ownership of the person living therein in his individual capacity or even that it is within the area of operation of the society – In view of the finding returned by the writ court, find no substance in the submission made on behalf of the society and as such the appeals lack merit and are liable to be dismissed. (Para 16 and 17) Purushottam Bagh Sahkari Awas Samiti Ltd. Vs. Sri Shobhan Pal Singh : 2023 STPL(Web) 235 SC

Constitution of India, Article 14 – Refund – Claim for interest pendente lite –On the date when the writ petition was filed and the petitioner had voluntarily offered to deposit the amount, the amount was to be paid and recoverable under the notification dated 10.10.2008 and 23.12.2008 if the benefit of additional FAR was to be availed – The petitioners being desirous of availing the same and to proceed with the construction on obtaining the Sanctioned Plan had proceeded at ‘breakneck’ speed and had incurred the expenditure by offering to deposit the amount and avail the benefit instead of awaiting adjudication and thereafter availing – On the date the deposit was made, the notification remained valid and even subsequently there is no declaration that the notification and the demand made is illegal – Through the subsequent notification an exemption has been granted by the respondents themselves to a certain category of institutional plots to avail additional FAR without levying such charges – Held that the circumstances in which the deposit was made is not in a situation where the appellant has suffered any loss due to the ‘Act of Court’ in the sense it ought to be construed – Further, insofar as the respondent is concerned, the notification providing for additional FAR charges was in force on the date when the deposit was made – There was no adjudication and determination with regard to the right of the appellant and a declaration that the amount was illegally demanded and retained by the respondent, either the direction to pay interest or to compensate in any other manner for the pendente lite period would not arise – Appellant in the second of the appeals has failed in the proceedings before this Court in an earlier SLP insofar as the pendente lite interest – Same would apply to their case as well and for the subsequent period they may avail their remedy – It would be open for the appellant in the second of the above appeals also to avail the remedy before the appropriate forum, in accordance with the law – All contentions of both parties in that regard left open. (Para 13 to 16) Lal Bahadur Shastri Educational Society & Anr. Vs. Delhi Development Authority & Ors.: 2023 STPL(Web) 240 SC

Insolvency and Bankruptcy Code, 2016, Section 5(18), 9, 33, 34, 35, 36, 60 – Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016, Regulation 3(1), 5, 7, 8, 32, 33, 35 – Companies (Registered Valuers and Valuation) Rules, 2017 – Corporate insolvency resolution process – Auction sale of property –Cancellation of auction sale – No reasons were assigned by the Liquidator for cancellation of the E-auction held on 20.07.2021 – Appellant was simply informed that the E-auction was cancelled in terms of Clause 3(k) of the E-Auction Process Information Document – Clause 3 (k) only declares that the Liquidator has absolute right to accept or reject any or all bids or adjourn/postpone/cancel the E-auction etc., at any stage without assigning any reason therefor– On challenge by appellant Tribunal directed the Liquidator to send a communication to the appellant requiring him to deposit the balance sale consideration within the time specified in the E-auction notice – Liquidator accepted the order of Tribunal but respondent No. 1 who is one of the financial creditor filed appeal before Appellate Tribunal – By the impugned order Appellate Tribunal allowed the appeal and set aside the order passed by the Tribunal and Liquidator was given liberty to initiate fresh process of auction in accordance with the provisions of the Code read with the Regulations, 2016 – Held that while the highest bidder has no indefeasible right to demand acceptance of his bid, the Liquidator if he does not want to accept the bid of the highest bidder has to apply his mind to the relevant factors – Such application of mind must be visible or manifest in the rejection order itself – It is incomprehensible that an administrative authority can take a decision without disclosing the reasons for taking such a decision – Even after cancelling the highest bid of the appellant, in the subsequent sale notice dated 24.12.2021, Respondent No.2 i.e. the Liquidator had again fixed the reserve price of the subject property at Rs.10 crores which was the reserve price in the previous round of auction sale and which was also the bid value of the appellant – Do not find any rationale or justification in rejecting the bid of the appellant and going for another round of auction at the same reserve price – Mere expectation of the Liquidator that a still higher price may be obtained can be no good ground to cancel an otherwise valid auction and go for another round of auction – Merely because the Liquidator has the discretion of carrying out multiple auction it does not necessarily imply that he would abandon or cancel a valid auction fetching a reasonable price and opt for another round of auction process with the expectation of a better price – Tribunal had rightly held that there were no objective materials before the Liquidator to cancel the auction process and to opt for another round of auction. (Para 34 to 42) EVA Agro Feeds Private Limited Vs. Punjab National Bank And Anr.: 2023 STPL(Web) 254 SC

Insolvency and Bankruptcy Code, 2016, Section 5(24), 5(24A), 9, 29A – Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016, Regulation 3(1), 5, 7, 8, 32, 33, 35 – Companies (Registered Valuers and Valuation) Rules, 2017 – Corporate insolvency resolution process – Auction sale of property – Cancellation of auction sale – Expression ‘related party’ –Held that the expressions ‘related party’ and ‘relative’ contained in the definition sections must be read noscitur a sociis with the categories of person mentioned in Explanation I – So read, it would include only persons who are connected with the business activity of the resolution applicant – Expression ‘connected person’ would also cover a person who is in management or control of the business of the corporate debtor during the implementation of a resolution plan – Disqualification sought to be attached to the appellant is without any substance as the related party had ceased to be in the helm of affairs of the corporate debtor more than a decade ago – He was not in charge of the company or an influential member of the company i.e., the corporate debtor when the appellant had made its bid pursuant to the auction sale notice – Appellate Tribunal was not justified in setting aside the order of the Tribunal dated 12.08.2021 – Consequently, the order dated 30.11.2021 passed by the Appellate Tribunal liable to be set aside and the order dated 12.08.2021 of the Tribunal restored.(Para 47 and 50 and 51) EVA Agro Feeds Private Limited Vs. Punjab National Bank And Anr.: 2023 STPL(Web) 254 SC

Ladakh Autonomous Hill Development Councils Act, 1997, Section 12 and 13 – Election Symbols (Reservation and Allotment) Order, 1968, Paragraphs 10 and 10(A) – Ladakh Autonomous Hill Development Councils (Election) Rules, 1995, Rule 5 – Election – Allocation of Symbol – General Elections of the Ladakh Autonomous Hill Development Council, Kargil – Non-allocation of the Plough symbol to the writ petitioner-respondent – Interim order passed by learned Single Judge and affirmed by Division Bench for allotment of symbol to respondent No. 1– Challenge as to –Contention on behalf of the appellant that the process of elections had already been set in motion; filing of the nomination forms had begun from 16.08.2023 and reached the penultimate stage since the last date of withdrawal of nominations (26.08.2023) had already elapsed and that now only polling remained to be held on 10.09.2023 and in this view of the matter, this Court may set aside the Impugned Order – Reiterated that the powers of this Court and the High Courts vested under the Constitution cannot be abridged, excluded or taken away, being part of the Basic Structure of our Constitution– Held thatHigh Court, being a Constitutional Court, is not, by any stretch of imagination, precluded from issuing a direction of the nature issued by it in the instant case, under Article 226 of the Constitution of India, more so when such direction does not violate any statutory provision – Request for allotment of the Plough symbol by R1 was bonafide, legitimate and just, for the plain reason that in the erstwhile State of Jammu and Kashmir (which included the present Union Territory of Ladakh), it was a recognized State Party having been allotted the Plough symbol – Upon bifurcation of the erstwhile State of Jammu and Kashmir and the creation of two new Union Territories, namely the Union Territory of Jammu and Kashmir and the Union Territory of Ladakh, though the ECI had not notified R1 as a State Party for the Union Territory of Ladakh, it cannot be simpliciter that R1 was not entitled for the allotment of plough symbol to it, in the factual background -There is no conflict with any other stakeholder for the reason that the Plough symbol is neither a symbol exclusively allotted to any National or State Party nor one of the symbols shown in the list of free symbols – Thus, there was and is no impediment in such symbol being granted to R1 -Appellants, while sitting on the representation of Respondent 1, went ahead and notified the elections on 02/05.08.2023 – Unable to appreciate such conduct – Emphasize that no litigant should have even an iota of doubt or an impression (rather, a misimpression) that just because of systemic delay or the matter not being taken up by the Courts resulting in efflux of time the cause would be defeated, and the Court would be rendered helpless to ensure justice to the party concerned–Impugned order passed by learned Single Judge as affirmed by Division Bench upheld – Entire election process, initiated pursuant to Notification dated 02.08.2023 issued by the Administration of Union Territory of Ladakh, Election Department, liable to be set aside – A fresh Notification shall be issued within seven days from today for elections to constitute the 5th Ladakh Autonomous Hill Development Council, Kargil. R1 is declared entitled to the exclusive allotment of the Plough symbol for candidates proposed to be put up by it.(Para 16, 21, 28, 29, 32, 38 and 44) Union Territory Of Ladakh & Ors. Vs. Jammu And Kashmir National Conference & Anr.: 2023 STPL(Web) 255 SC

Constitution of India, Article 141 – Precedent – Reference to larger Bench – High Courts not deciding cases on the ground that the leading judgment of this Court on this subject is either referred to a larger Bench or a review petition relating thereto is pending – Come across examples of High Courts refusing deference to judgments of this Court on the score that a later Coordinate Bench has doubted its correctness – Held that make it absolutely clear that the High Courts will proceed to decide matters on the basis of the law as it stands – It is not open, unless specifically directed by this Court, to await an outcome of a reference or a review petition, as the case may be – It is also not open to a High Court to refuse to follow a judgment by stating that it has been doubted by a later Coordinate Bench – In any case, when faced with conflicting judgments by Benches of equal strength of this Court, it is the earlier one which is to be followed by the High Courts.(Para 35) Union Territory Of Ladakh & Ors. Vs. Jammu And Kashmir National Conference & Anr.: 2023 STPL(Web) 255 SC

Constitution of India, Article 14 and 226 – Election matters – Writ jurisdiction – Held that the restraint, self-imposed, by the Courts as a general principle, in election matters to the extent that once a notification is issued and the election process starts, the Constitutional Courts, under normal circumstances are loath to interfere, is not a contentious issue – But where issues crop up, indicating unjust executive action or an attempt to disturb a level-playing field between candidates and/or political parties with no justifiable or intelligible basis, the Constitutional Courts are required, nay they are duty-bound, to step in – The reason that the Courts have usually maintained a hands-off approach is with the sole salutary objective of ensuring that the elections, which are a manifestation of the will of the people, are taken to their logical conclusion, without delay or dilution thereof. (Para 37) Union Territory Of Ladakh & Ors. Vs. Jammu And Kashmir National Conference & Anr.: 2023 STPL(Web) 255 SC

Insurance Act, 1938, Section 38 – Life Insurance Corporation Act, 1956, Section 6 – Assignment of a life insurance policy – Levy of Registration charges – Challenge to Circular dated 24th April 2006 -Whether the appellant–insurer is lawfully entitled to levy a service charge of Rs.250/- for a transaction of assignment of a life insurance policy? – Section 38 does not authorise the levy of any such fee – Unamended sub-Section (2) of Section 38 of the Insurance Act provided for giving acknowledgement of a notice of transfer or assignment given in terms of sub-Section (2) of Section 38 – It was specifically provided therein that the insurer can charge and levy a fee not exceeding Rs.1 for giving such acknowledgement – Thus, it prescribed a fee for issuing acknowledgement of notice of assignment or transfer – Though, there was a specific provision made to levy a fee for giving acknowledgement of notice of transfer, the legislature, in its wisdom, has not provided any fee or charge for recording the assignment or transfer in the records of the insurer – In the substituted Section 38 of the Insurance Act, which was brought into force on 26th December 2014, the provision enabling the charging of a fee of Rs.1 for acknowledgement has been done away with – Held that find no error in the view taken by the High Court that the appellant–insurer had no right to claim fees of Rs.250/- for recording the endorsement of assignment or transfer. (Para 8, 9 and 12) Life Insurance Corporation Of India Vs. Dravya Finance Pvt. Ltd. & Ors.: 2023 STPL(Web) 256 SC

Arbitration and Conciliation Act, 1996, Section 34 and 37 – Insolvency and Bankruptcy Code, 2016, Section 7, 60(5) – Corporate Insolvency Resolution Process – Delay in Claim – Whether the appellant’s claim pertaining to an arbitral award, which is in appeal under Section 37 of the Act, 1996, is liable to be included at a belated stage – i.e. after the resolution plan has been approved by the COC? – Held that respondent no. 1 did what could be done to procure the Corporate Debtor’s records by even moving an application under Section 19 of the IB -. That it was not fruitful is a consequence of the Corporate Debtor not making available the material – It is thus not even known whether there was a reflection in the records on this aspect or not.(Para 15 to 18) Rps Infrastructure Ltd. Vs. Mukul Kumar & Anr.: 2023 STPL(Web) 259 SC

Insolvency and Bankruptcy Code, 2016, Section 7, 15 – Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016, Regulation 6 – Corporate Insolvency Resolution Process – Delay in submission of claim – Development of land agreement – Arbitral award –Whether the delay in the filing of claim by the appellant ought to have been condoned by respondent no. 1? – Held that the IBC is a time bound process – There are, of course, certain circumstances in which the time can be increased – The delay on the part of the appellant is of 287 days – The appellant is a commercial entity – That they were litigating against the Corporate Debtor is an undoubted fact – Believe that the appellant ought to have been vigilant enough in the aforesaid circumstances to find out whether the Corporate Debtor was undergoing CIRP – The appellant has been deficient on this aspect – The result, of course, is that the appellant to an extent has been left high and dry – Section 15 of the IBC and Regulation 6 of the IBBI Regulations mandate a public announcement of the CIRP through newspapers – This would constitute deemed knowledge on the appellant – Their plea of not being aware of newspaper pronouncements is not one which should be available to a commercial party – The mere fact that the Adjudicating Authority has yet not approved the plan does not imply that the plan can go back and forth, thereby making the CIRP an endless process – This would result in the reopening of the whole issue, particularly as there may be other similar persons who may jump onto the bandwagon – Held that NCLAT’s impugned judgment cannot be faulted to reopen the chapter at the behest of the appellant. (Para 19 to 22) Rps Infrastructure Ltd. Vs. Mukul Kumar & Anr.: 2023 STPL(Web) 259 SC

West Bengal Minor Minerals Concession Rules, 2016, Rule 61 – Mines and Minerals (Development and Regulation) Act, 1957, Section 10A (as amended by Amendment Act, 2015) – West Bengal Land Reforms Act, 1955, Section 4C. 14Y – Mining lease – Minor mineral ‘Dolomite’ – Prayer by respondent-petitioner in writ petition before High Court for grant of mining lease of 76 acres of land allowed inter alia observing that Dolomite had become a minor mineral with effect from 10.02.2015 and hence prior approval of the Central Government is not required under Section 5(1) of the Act, 1957 – On the question of requirements under Section 14-Y and 4-C of the WBLR Act, 1955, it is observed that the land in question is recorded as ‘Dungri’ as per information provided by the Deputy District Land and Land Reforms Officer, Purulia vide Memo No. V/RTI/775/15 dated 06.03.2017 and that the land classified as ‘Dungri’ is only used for the purpose of mining lease and thus, there is no need for a conversion certificate under Section 4-C of the WBLR, Act, 1955 – Agreeing with the findings recorded by the Single Judge, the division bench has held that the provisions of Rules, 2016 will not be applicable as the Respondent No.1 had made the application in March 1998, and more so as the Joint Secretary, Government of West Bengal had passed the order dated 13.10.2006 to grant mining lease – The High Court’s direction given in Writ Petition No. 21358 (W) of 2014 vide judgment dated 10.09.2014 are prior to the enforcement of the Concession Rules, 2016- Held that controversy relating to Section 4-C of the WBLR Act, 1955, cannot simply be decided on the basis of Memo No. V/RTI/775/15 dated 06.03.2017 issued by the Deputy District Land and Land Reforms Officer, that as per the revenue records the land was recorded as ‘Dungri’ – The reason is that Raiyat land is not for mining – Thus, a contradiction arises, as the grant of Raiyat land and the classification of the same land as ‘Dungri’ is contradictory – Whether the application filed by the Respondent No. 1 way back in 1998 would still hold good as at the time, when the application was filed, approval of the Central Government was required – Stand of the appellants – State of West Bengal, that they are owners of 20.87 acres of the land in question and to this extent, they have no difficulty in executing the mining lease – This being the stated stand, there should be no difficulty in granting of mining lease for the said area to the Respondent No. 1 – Impugned judgment liable to be set aside with a direction that the government of West Bengal will execute a mining lease for 20.87 acres of land in favour of the Respondent No. 1 – Writ Petition No. 20309 (W) of 2016 will be treated as allowed to the extent as indicated above – The claim of the Respondent No. 1 towards the balance area for the grant of mining lease will be treated as rejected and dismissed. (Para 2, 18 to 22) State Of West Bengal And Another Vs. M/S. Chiranjilal (Mineral) Industries Of Bagandih And Another: 2023 STPL(Web) 261 SC

Limitation Act, 1963, Section 9; Article 54 of Part II of the Schedule – Suit for specific performance – Limitation –Held that for determining applicability of the first or the second part of Article 54 of part II of the Schedule, the court will have to see whether any time was fixed for performance of the agreement to sell and if so fixed, whether the suit was filed beyond the prescribed period, unless a case for extension of time or performance was pleaded or established – However, when no time is fixed for performance, the court will have to determine the date on which the plaintiff had notice of refusal on part of the defendant to perform the contract. (Para 21) A. Valliammai Vs. K.P. Murali And Others: 2023 STPL(Web) 263 SC

Constitution of India, Article 142 – Limitation Act, 1963, Section 9; Article 54 of Part II of the Schedule – Suit for specific performance – Limitation – Time not the essence of the contract – Rs. 1,00,000/- was paid at the time of execution of the agreement to sell – Balance consideration of Rs. 31,45,000 was required to be paid by 26.05.1989 and time for payment and execution of the sale deed was extended till 26.11.1989 vide the endorsement – Taking the date 26.11.1989 as the date for performance, the suit for specific performance filed on 27.09.1995, held to be barred by limitation – Since the aforesaid time, as fixed vide the agreement to sell and the endorsement was not the essence of the contract the first part of Article 54 will not be applicable -Instead, the second part of Article 54 will apply–Held that 3-year limitation period to file a suit for specific performance commenced as early as when the ‘K’ had filed suit for injunction on 15.07.1991 –‘A’’s reply dated 09.08.1991 or reply to rejoinder dated 16.09.1991 were again sufficient written notice to ‘K’ of her refusal and unwillingness to perform the agreement to sell – The limitation period of three years under the second part of Article 54, which is from the date when the party had notice of the refusal by the other side, had expired when the suit for specific performance was filed on 27.09.1995 – Suit held to be barred by limitation – Impugned judgment and decree for specific performance liable to be set aside –In exercise of power under Article 142 of the Constitution of India, to do substantial justice with the direction to ‘A’ to pay Rs.50,00,000/- to ‘KP’. and ‘SP’ – The figure keeps in mind the advance of Rs.1,00,000/- paid on 26.05.1988 and the expenses incurred by ‘K’, and interest etc. – A decree of Rs.50,00,000/- is passed in favour of ‘KP’ and ‘SP’ against ‘A’ in the above terms – In case Rs.50,00,000/- is not paid by ‘A’ within 6 (six) months, she shall be liable to pay interest @ 8% per annum on Rs. 50,00,000/- from the date of this judgment till the date on which the payment is actually made. (Para 26, 27 and 29) A. Valliammai Vs. K.P. Murali And Others: 2023 STPL(Web) 263 SC

Insolvency and Bankruptcy Code, 2016, Section 7 – Limitation Act, 1963, Section 3(1), 5 and 18 – Limitation –Acknowledgement – Order admiring application u/s 7 of the Code by condoning delay –Challenge as to – Whether Respondent No.2 would be entitled to the benefit of Section 18 of the Limitation Act and whether Section 5 of the Limitation Act thereof would also be applicable – Respondent 2- State Bank of India declared the Corporate Debtor as an NPA on 28.06.2013 – Therefore, the limitation period would be three years from the last date of the financial year previous to the declaration of NPA, which would be 31.03.2013, and would run up to 31.03.2016 – If there were no further intervening circumstances or developments relating to acknowledgment, the contention raised by the appellant that the petition under Section 7 of IBC having been filed much beyond 31.03.2016, in 2020 to be specific on 22.01.2020, the petition would be clearly barred by limitation – However, there are four major acknowledgments made by the Corporate Debtor after the declaration of the NPA and within the expiry of three years from the said date – The petition under Section 7 was filed on 22nd January, 2020 within three years from the date of the first, second and the third OTS proposals. (Para 13, 14, 15) Axis Bank Limited Vs. Naren Sheth & Anr.: 2023 STPL(Web) 264 SC

Insolvency and Bankruptcy Code, 2016, Section 7 – Limitation Act, 1963, Section 3(1), 5 and 18 – Limitation – Balance sheet Entries – OTS proposal – Acknowledgement – Order admiring application u/s 7 of the Code by condoning delay – Challenge as to – Production of documents at appellate stage – Documents relating to acknowledgement claiming benefit of Section 18 could be accepted even at the appellate stage and a settlement offer akin to an OTS proposal would be an acknowledgment of debt for the purpose of Section 18 of Limitation Act – The only caveat was that such acknowledgments should be before the expiry of limitation prescribed under law – A balance sheet acknowledging debt is also a document relevant for calculating the limitation – With respect to the genuineness of the OTS proposals giving several reasons to discard the same all the said reasons will be tested in the proceedings before the Adjudicating Authority as and when raised by the Corporate Debtor or any other party having locus to raise such plea – Presently in this appeal the said issue cannot be taken up because the Adjudicating Authority as well as NCLAT have accepted the explanation of Respondent No.2 for the delay caused in filing the Section 7 IBC petition to be satisfactory and have condoned the same -In view of the first and second OTS proposals by the Corporate Debtor being not questioned by the suspended Directors, there is no reason to disbelieve or to cast any doubt on the said documents at the instance of the appellant who is an unsecured creditor – Appeal liable to be dismissed. (Para 21, 24, 26 and 28) Axis Bank Limited Vs. Naren Sheth & Anr.: 2023 STPL(Web) 264 SC

Insolvency and Bankruptcy Code, 2016, Section 7 – Limitation Act, 1963, Section 3(1), 5 and 14 – Insolvency and Bankruptcy – Limitation – Held that Section 14will have no application inasmuch as the proceedings under the SARFAESI Act before the DRT cannot be said to be before a Court or Tribunal having no jurisdiction – Respondent No.2, being a Secured Creditor, would definitely have a right to invoke the power under the SARFAESI Act and the said proceedings cannot be said to be without jurisdiction – Therefore, no benefit under Section 14 would be admissible to Respondent No.2 in the present case. (Para 14) Axis Bank Limited Vs. Naren Sheth & Anr.: 2023 STPL(Web) 264 SC

West Bengal Registration Act 1961, Section25, 26- Bengal General Clauses Act, 1899, Section 22 – Cancellation of registration of society – Power for – Whether the Registrar of Society, empowered to grant registration under the Act 1961, also has the power to cancel such registration –Procedural review – Cancellation of registration of society – There is no specific provision in the statute granting such authority the power to review or cancel his own decision – Registrar had passed an order for cancelling the registration on 19.04.2016 – It was unsuccessfully assailed before a Single Judge of the High Court in Writ Petition- There was difference of opinion between the learned Judges of the Division Bench of the Calcutta High Court, in a Letters Patent Appeal filed by the respondent no.1 and others against the decision of the learned Single Judge sustaining the cancellation orderand matter referred to third judge – Referee Judge opined that the Registrar had proceeded to exercise his power of substantive review and that too without reference to the application for registration that succeeded and heldit would only be fit and proper to set aside the order impugned in the writ petition and the judgment and order under appeal, and to order a further remand of the matter to the Registrar for taking an appropriate decision not only by adhering to the said order of January 14, 2016 but also in the light of the observations made – Held that the impugned judgment does not suffer from any legal shortcoming warranting interference. (Para 10, 13 and 15) Chen Khoi Kui Vs. Liang Miao Sheng & Ors.: 2023 STPL(Web) 266 SC

Civil Procedure Code, Order 41 Rule 5(2) – Infringement of copyright – Stay of execution of decree – Challenge as to – Trial Judge held that the labels used by the respondent on the liquor bottles sold by the respondent were deceptively similar to the labels used by the appellant and that by reproducing a substantial part of the label of the appellant has infringed the copyright of the appellant – Trial Court held that the appellant was entitled to a permanent injunction on both the counts, viz., infringement of copyright and passing-off – High Court stayed the execution and the operation of the decree till the final disposal of the appeal – At the time of the final hearing of the suit, it was incumbent upon the appellant-plaintiff to actually prove the figures of sales and expenditure incurred on the advertising and promotion of the product – Only by producing the statements without proving the contents thereof, the appellant could not have established its reputation or goodwill in connection with the goods in question – This aspect surely makes out a prima facie case for grant of stay to the execution of the decree in favour of the respondent as regards the passing-off action – It appears that when permission was sought by the respondent to use the impugned labels, the appellant raised objections in writing to the grant of permission to the respondent to use the said labels -There was a positive act on the part of the appellant of withdrawing the said objections by submitting the letters of withdrawal in which, admittedly, it was not mentioned that the withdrawal was conditional -This important factual aspect supports the order of stay granted by the High Court as regards the decree in respect of the infringement of copyright. The objections were withdrawn on 25th April 2016 and the suit was filed on 4th October 2017 – A prima facie case of acquiescence by the appellant was made out by the respondent – Held that it is very difficult to find fault with the impugned interim order of the High Court which will be operative till the disposal of the substantive appeal preferred by the respondent. (Para 12 to 17) Brihan Karan Sugar Syndicate Private Limited Vs. Yashwantrao Mohite Krushna Sahakari Sakhar Karkhana: 2023 STPL(Web) 270 SC

Criminal

Penal Code, 1860, Section 307 – Attempt to murder – Quantum of sentence – 39 years have passed since the date of offence – Both the other accused persons have come to be acquitted – Old enmity between the complainant and A1 relating to the piece of land where the offence came to be committed – Appellant (A2) is the nephew of A1 – No criminal antecedents of the appellant brought on record – Further, from the record, it cannot be said that the appellant acted in a premeditated manner, whatsoever – In consideration of the abovementioned mitigating factors, the sentence imposed on the appellant -accused reduced from 5 years rigorous imprisonment to 3 years of rigorous imprisonment – The appellant shall pay a fine amount of Rs.50,000/- within a period of 6 weeks – In default of payment of fine, the appellant shall undergo rigorous Imprisonment for 3 months – The fine to be paid to the Complainant by way of compensation. (Para 21 to 24) Pramod Kumar Mishra Vs. State Of U.P.: 2023 STPL(Web) 230 SC

Penal Code, Sections 302 and 376 – Protection of Children from Sexual Offences Act, 2012, Section 4 – Criminal Procedure Code, 1973, Section 53, 53A – POCSO – Serious lapses in investigation – Non sending of muddamal articles to FSL for examination – Non-examination of accused by Medical Practitioner – Investigating officer deposed in her cross examination that in accordance with the order a letter on behalf of the officer-in-charge of the Police Station, was filed before the Trial Court seeking permission to send the muddamal articles to the FSL for examination – However, following the instructions of her senior officers, she did not take any steps to procure FSL report – Who are these senior officers of PW 5 and why they instructed the PW 5 not to procure the FSL report should have been a subject matter of inquiry by both, the State as well as the trial court – Held that it is a very serious flaw on the part of the investigating officer and that too in such a serious matter – Failure on the part of Investigation officer to subject the appellant to medical examination by a medical practitioner – No explanation, much less any reasonable explanation, has been offered for such a serious flaw on the part of the investigating officer (Para 22 to 24) Munna Pandey Vs. State of Bihar : 2023 STPL(Web) 233 SC

Criminal Procedure Code, 1973, Section 367 and 368 – Penal Code, 1860, Section 302 – Protection of Children from Sexual Offences Act, 2012, Section 4 – Death Sentence – Reference for confirmation – Held that on a reference for confirmation of the sentence of death, the High Court is under an obligation to proceed in accordance with the provisions of Sections 367 and 368 respectively of the CrPC – Under these Sections the High Court must not only see whether the order passed by the Sessions Court is correct but it is under an obligation to examine the entire evidence for itself, apart from and independently of the Sessions Court’s appraisal and assessment of that evidence. (Para 2) Munna Pandey Vs. State of Bihar : 2023 STPL(Web) 233 SC

Penal Code, Sections 302 and 376 – Protection of Children from Sexual Offences Act, 2012, Section 4 Criminal Procedure Code, 1973, Section 162 – Evidence Act, 1872, Section 145, 165 – Evidence – Use of statements to police in evidence – Cross-examination as to previous statements in writing -Case of all the witnesses before the police was that it was ‘P’ who had come to the house of the victim on the fateful day and date and had taken the victim along with him to his house to watch TV – All the statements further reveal that it was ‘P’ who was found locking the door when the witnesses enquired with ‘P’ about the whereabouts of the victim – Neither the defence counsel nor the public prosecutor nor the presiding officer of the Trial Court and unfortunately even the High Court thought fit to look into the aforesaid aspect of the matter and try to reach to the truth – It was the duty of the defence counsel to confront the witnesses with their police statements so as to prove the contradictions in the form of material omissions and bring them on record – Learned defence counsel had no idea how to contradict a witness with his or her police statements in accordance with Section 145 of the Evidence Act, 1872 – The public prosecutor knew that the witnesses were deposing something contrary to what they had stated before the police in their statements recorded under Section 161 of the CrPC – It was his duty to bring to the notice of the witnesses and confront them with the same even without declaring them as hostile – The presiding officer of the Trial Court also remained a mute spectator – It was the duty of the presiding officer to put relevant questions to these witnesses in exercise of his powers under Section 165 of the Evidence Act. Section 162 of the CrPC does not prevent a Judge from looking into the record of the police investigation – Being a case of rape and murder and as the evidence was not free from doubt, the Trial Judge ought to have acquainted himself, in the interest of justice, with the important material and also with what the only important witnesses of the prosecution had said during the police investigation -Impugned judgment of the High Court liable to be set aside – Matter remitted back to the High Court for deciding the reference under Section 366 of the CrPC in the manner it ought to have been decided, more particularly keeping in mind the serious lapses on the part of the defence in not proving major contradictions in the form of material omissions surfacing from the oral evidence of the prosecution witnesses. (Para 39 to 43, 73) Munna Pandey Vs. State of Bihar : 2023 STPL(Web) 233 SC

Penal Code, Sections 302 and 376 – Protection of Children from Sexual Offences Act, 2012, Section 4 – Criminal Procedure Code, 1973, Section 313 – Criminal Procedure – Statement of accused u/s 313 – Trial Court recorded the further statement of the appellant convict under Section 313 CrPC – In all, four questions were put to the appellant convict to enable him to explain the incriminating circumstances pointing towards his complicity in the alleged crime – For the purpose of holding the appellant guilty of the alleged crime, the Trial Court looked into the following additional circumstances:- (a) The circumstance of PW 3 seeing the Appellant lock the grill and the door of his room. (b) The circumstance that the Appellant gave false information to PW 3 that the victim had already left after watching TV. (c) The circumstance of the accused refusing to open the door as he did not have the key. (d) The circumstance of the Appellant giving the keys to the villagers after he was assaulted. (e) The circumstance of the alleged extra-judicial confession made by the co-accused Pritam Tiwari implicating the Appellant – Indisputably, none of the aforesaid circumstances relied upon by the Trial Court were put to the appellant convict so that he could offer a proper explanation to the same. (Para 30 to 32) Munna Pandey Vs. State of Bihar : 2023 STPL(Web) 233 SC

Penal Code, Sections 302 and 376 – Protection of Children from Sexual Offences Act, 2012, Section 4 Criminal Procedure Code, 1973, Section 162 – Evidence Act, 1872, Section 145 – Evidence – Use of statements to police in evidence – Cross-examination as to previous statements in writing -Where the evidence given in a Court implicates persons who are not mentioned in the first information report or police statements, it is always advisable and far more important for the Trial Judge to look into the police papers in order to ascertain whether the persons implicated by witnesses, at the trial had been implicated by them during the investigation -Held that if the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the Court cannot suo motu make use of statements to police not proved in compliance with Section 145 of the Evidence Act – Therefore, it is of utmost importance to prove all major contradictions in the form of material omissions in accordance with the procedure as established under Section 145 of the Evidence Act and bring them on record. It is the duty of the defence counsel to do so. (Para 48 to 50) Munna Pandey Vs. State of Bihar : 2023 STPL(Web) 233 SC

Criminal Procedure Code, 366 to 371, 384 to 391 – Appeal against conviction – Reference by Court of Session for confirmation of Sentence of death – Held that ordinarily, in a criminal appeal against conviction, the appellate court, under Section 384 of the CrPC, can dismiss the appeal, if the Court is of the opinion that there is no sufficient ground for interference, after examining all the grounds urged before it for challenging the correctness of the decision given by the Trial Court – It is not necessary for the appellate court to examine the entire record for the purpose of arriving at an independent decision of its own whether the conviction of the appellant is fully justified – The position is, however, different where the appeal is by an accused who is sentenced to death, so that the High Court dealing with the appeal has before it, simultaneously with the appeal, a reference for confirmation of the capital sentence under Section 366 of the CrPC – On a reference for confirmation of sentence of death, the High Court is required to proceed in accordance with Sections 367 and 368 respectively of the CrPC – Provisions of these Sections make it clear that the duty of the High Court, in dealing with the reference, is not only to see whether the order passed by the Sessions Judge is correct, but to examine the case for itself and even direct a further enquiry or the taking of additional evidence if the Court considers it desirable in order to ascertain the guilt or the innocence of the convicted person – Under the proviso to Section 368, no order of confirmation is to be made until the period allowed for preferring the appeal has expired, or, if an appeal is presented within such period, until such appeal is disposed of, so that, if an appeal is filed by a condemned prisoner, that appeal has to be disposed of before any order is made in the reference confirming the sentence of death – In disposing of such an appeal,however, it is necessary that the High Court should keep in view its duty under Section 367 CrPC and, consequently, the Court must examine the appeal record for itself, arrive at a view whether a further enquiry or taking of additional evidence is desirable or not, and then come to its own conclusion on the entire material on record whether conviction of the condemned prisoner is justified and the sentence of death should be confirmed. (Para 59) Munna Pandey Vs. State of Bihar : 2023 STPL(Web) 233 SC

Constitution of India, Article 21 – Criminal justice system in India -Fair trial –Duty of presiding judge – Free and fair trial is sine-qua-non of Article 21 of the Constitution – If the criminal trial is not free and fair, then the confidence of the public in the judicial fairness of a judge and the justice delivery system would be shaken – Denial to fair trial is as much injustice to the accused as to the victim and the society – No trial can be treated as a fair trial unless there is an impartial judge conducting the trial, an honest, able and fair defence counsel and equally honest, able and fair public prosecutor – A fair trial necessarily includes fair and proper opportunity to the prosecutor to prove the guilt of the accused and opportunity to the accused to prove his innocence – The role of a judge in dispensation of justice after ascertaining the true facts no doubt is very difficult one – In the pious process of unravelling the truth so as to achieve the ultimate goal of dispensing justice between the parties the judge cannot keep himself unconcerned and oblivious to the various happenings taking place during the progress of trial of any case – No doubt he has to remain very vigilant, cautious, fair and impartial, and not to give even a slightest of impression that he is biased or prejudiced either due to his own personal convictions or views in favour of one or the other party – This, however, would not mean that the Judge will simply shut his own eyes and be a mute spectator, acting like a robot or a recording machine to just deliver what stands feeded by the parties – If the Courts are to impart justice in a free, fair and effective manner, then the presiding judge cannot afford to remain a mute spectator totally oblivious to the various happenings taking place around him, more particularly, concerning a particular case being tried by him – The fair trial is possible only when the court takes active interest and elicit all relevant information and material necessary so as to find out the truth for achieving the ultimate goal of dispensing justice with all fairness and impartiality to both the parties. (Para 67, 68 and 71) Munna Pandey Vs. State of Bihar : 2023 STPL(Web) 233 SC

Criminal justice system in India – Fair trial – Truth is the cherished principle and is the guiding star of the Indian criminal justice system – For justice to be done truth must prevail – Truth is the soul of justice – The sole idea of criminal justice system is to see that justice is done – Justice will be said to be done when no innocent person is punished and the guilty person is not allowed to go scot free – For the dispensation of criminal justice, India follows the accusatorial or adversarial system of common law – In the accusatorial or adversarial system the accused is presumed to be innocent; prosecution and defence each put their case; judge acts as an impartial umpire and while acting as a neutral umpire sees whether the prosecution has been able to prove its case beyond reasonable doubt or not.(Para 65 and 66) Munna Pandey Vs. State of Bihar : 2023 STPL(Web) 233 SC

Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders, Land Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act 1986, Section 3(2) – Preventive Detention – Challenge as to – Commissioner was satisfied that the Detenu was “habitually committing the offences including outraging the modesty of women, cheating, extortion, obstructing the public servants from discharging their legitimate duties, robbery and criminal intimidation along with his associates in an organized manner and he is a ‘Goonda’ as defined in clause (g) of Section 2” of the Act – Held that even if the offences referred to in the Detention Order, alleged to have been committed by the Detenu have led to the satisfaction being formed, still the same are separate and stray acts affecting private individuals and the repetition of similar such acts would not tend to affect the even flow of public life – The offence in respect of the minor girl the Detenu was not arrested because of an order passed by the High Court on an application under section 438 of the “Cr. PC” – The investigating agency not having elected to have such order quashed by a higher forum – The only other offence that could attract the enumerated category of “acting in any manner prejudicial to the maintenance of public order” and an order of preventive detention, if at all, is the stray incident where the Detenu has been charged under section 353, IPC and where the police has not even contemplated an arrest under section 41 of the Cr. PC – On an overall consideration of the circumstances, it does appear that the existing legal framework for maintaining law and order is sufficient to address like offences under consideration, which the Commissioner anticipates could be repeated by the Detenu if not detained – The order of detention is, thus, indefensible – As a consequence, the impugned judgment and order of the High Court too cannot be upheld – The Detention Order and the impugned judgment and order stand quashed. (Para 39, 40 and 81) Ameena Begum Vs. State of Telangana & Ors.: 2023 STPL(Web) 234 SC

Constitution of India, Article 22 (3) – Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders, Land Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act 1986, Section 3(2) – Preventive Detention – Challenge as to – Principles of law – Held that in the circumstances of a given case, a Constitutional Court when called upon to test the legality of orders of preventive detention would be entitled to examine whether (i) the order is based on the requisite satisfaction, albeit subjective, of the detaining authority, for, the absence of such satisfaction as to the existence of a matter of fact or law, upon which validity of the exercise of the power is predicated, would be the sine qua non for the exercise of the power not being satisfied; (ii) in reaching such requisite satisfaction, the detaining authority has applied its mind to all relevant circumstances and the same is not based on material extraneous to the scope and purpose of the statute; (iii) power has been exercised for achieving the purpose for which it has been conferred, or exercised for an improper purpose, not authorised by the statute, and is therefore ultra vires; (iv) the detaining authority has acted independently or under the dictation of another body; (v) the detaining authority, by reason of self-created rules of policy or in any other manner not authorized by the governing statute, has disabled itself from applying its mind to the facts of each individual case; (vi) the satisfaction of the detaining authority rests on materials which are of rationally probative value, and the detaining authority has given due regard to the matters as per the statutory mandate; (vii) the satisfaction has been arrived at bearing in mind existence of a live and proximate link between the past conduct of a person and the imperative need to detain him or is based on material which is stale; (viii) the ground(s) for reaching the requisite satisfaction is/are such which an individual, with some degree of rationality and prudence, would consider as connected with the fact and relevant to the subject-matter of the inquiry in respect whereof the satisfaction is to be reached; (ix) the grounds on which the order of preventive detention rests are not vague but are precise, pertinent and relevant which, with sufficient clarity, inform the detenu the satisfaction for the detention, giving him the opportunity to make a suitable representation; and (x) the timelines, as provided under the law, have been strictly adhered to. Should the Court find the exercise of power to be bad and/or to be vitiated applying any of the tests noted above, rendering the detention order vulnerable, detention which undoubtedly visits the person detained with drastic consequences would call for being interdicted for righting the wrong. (Para 25) Ameena Begum Vs. State of Telangana & Ors.: 2023 STPL(Web) 234 SC

Constitution of India, Article 22 (3) – Detention order – Distinction between disturbances relatable to “law and order” and disturbances caused to “public order” – Held that breach of law in all cases does not lead to public disorder – For an act to qualify as a disturbance to public order, the specific activity must have an impact on the broader community or the general public, evoking feelings of fear, panic, or insecurity – Not every case of a general disturbance to public tranquillity affects the public order. (Para 30, 31 and 33) Ameena Begum Vs. State of Telangana & Ors.: 2023 STPL(Web) 234 SC

Criminal Procedure Code, 1973, Section 439 – Constitution of India, Article 32 – Penal Code, 1860, Section 120B, 409, 411, 420, 467, 468, 471, 474 – Prize Chits and Money Circulation Scheme (Banning) Act, 1978, Section 4, 5, and 6 – Bail – Siphoned of Big Money in Schemes – Central Bureau of Investigation registered a case in pursuance to the directions issued by this Court vide order dated 12.03.2023 in Civil Appeal No. 6572 of 2004 – The applicants being the Directors at the relevant point of time were arrayed as accused – The amount siphoned off exceeds over and above 40 thousand crores, out of which a paltry sum has been recovered so far despite the efforts made by the investigating agency and the Committee constituted under Justice R.M. Lodha on the orders of this Court – Applicants wants omnibus bail order in all the cases registered against them on the ground that co-accused have been granted bail and they are facing incarceration for 7 years – Held that one cannot apply one bail order to all the other subsequent cases – Do not have the adequate particulars pertaining to the subsequent cases filed, like the chargesheet pertaining to the case registered by different investigating agencies – It is not as if the applicants are unable to approach the concerned courts for seeking bail – Applications and the writ petition liable to be dismissed with liberty to the applicants to file bail applications before the jurisdictional courts. (Para 8 and 9) PACL Vs. Central Bureau of Investigation : 2023 STPL(Web) 237 SC

Criminal Procedure Code, 1973, Section 439 – Bail – Unlawful Activities – Alleged offences punishable under Sections 120B, 201, 302, 364 and 403 IPC, Section 25 of the Arms Act and Sections 16, 18 and 20 ‘UAPA’ -Case of the prosecution that the appellant a retired police officer, in connivance with ‘S’ another senior police officer had planted gelatin sticks in a Scorpio Vehicle near the residence of a prominent businessman – Allegation is also that the appellant had a role with ‘S’ in the murder of ‘M’ – High Court has noted that the charge sheet does not prima facie disclose that the appellant was involved in the conspiracy of planting gelatin sticks in the Scorpio vehicle – Provisions of the Explosive Substances Act and Arms Act were not applied by the NIA against the appellant, it was only during the course of the arguments the prosecution was trying to link the appellant with the Scorpio vehicle-laden with gelatin sticks – The said observations made by the High Court would indicate that in the present facts, as against the role assigned to the appellant, invoking of the UAPA would pale into insignificance and the rigor of that law would not be applicable at this stage while considering the application of the appellant for bail – Circumstances alleged against the appellant that he was complicit to the crime of murdering ‘M’ are matters of evidence which is to be established during the trial by connecting the chain of circumstances to prove the guilt of the appellant beyond reasonable doubt – Appellant was arrested on 17.06.2021 and in custody throughout, except for the brief period when he was released him on interim bail so as to attend to the medical treatment of his wife -He has been interrogated and a charge sheet filed – All witnesses out of more than 300 witnesses named are to be examined – Further investigation under Section 173(8) is pending, and a supplementary charge sheet would be filed – Process will not conclude in the near future – Appellant was a police officer and has retired after rendering 37 years of service is a factor which should weigh in favour of the appellant as he has strong root in Mumbai and would be available to stand trial -The case is being prosecuted by a different agency-the NIA -No adverse report about the conduct of the appellant while he was out on interim bail – Order passed by the High Court liable to be set aside – Directed that the appellant be released on bail subject to appropriate conditions imposed by trial Court. (Para 7 to 13) Pradeep Rameshwar Sharma Vs. National Investigating Agency & Anr.: 2023 STPL(Web) 239 SC

Penal Code, 1860, Section 302, 307 – Sentence – Damages – Compensation -Incident is of the year 1995, almost 28 years old – Held that awarding death sentence would not be appropriate – Imprisonment for life awarded to respondent no.2 under Section 302 IPC along with fine of Rs.20 lacs – Further, respondent no.2 is awarded 7 years rigorous imprisonment under Section 307 IPC along with fine of Rs.5 lacs – Both the sentences to run concurrently – Not inclined to grant any expenses to the State considering the fact that the State in fact did not prosecute the case fairly, rather throughout assisted the accused -Considering the conduct of accused no.2, further the mental, physical, and financial damages suffered by the victim’s family, the two deceased and the injured, damages of Rs.10 lacs each to the legal heirs of two deceased ‘R’ and ‘D’ – The Trial Court will get a preliminary enquiry conducted with regard to the legal heirs of the two deceased and the amount will be disbursed to the legal heirs as per the law of Succession – Amount of fine awarded under section 307 IPC of Rs.5 lacs would be disbursed in the same manner by the Trial Court to the victim if she is alive and if not, to her legal heirs – Considering the conduct of the State as noticed in the judgment dated August 18, 2023 and also the amount of trauma and harassment faced by the victim’s family, in addition to the damages awarded under section 357 CrPC further compensation under section 357-A CrPC the State of Bihar will compensate the legal heirs of the two deceased and the injured if alive otherwise her legal heirs in the like amount of the fine awarded above i.e. Rs.10 lacs each to the legal heirs of the deceased ‘R’ and ‘D’ and Rs.5 lacs to the injured Smt. ‘D’ or her legal heirs, as the case may be. The amount so deposited will be disbursed in the same manner as provided above for disbursement of the damages under section 357 CrPC – Amount of fine and compensation as awarded above to be deposited with the Trial Court within two months failing which the same shall be got recovered as arrears of land revenue by the Trial Court. (Para 4 to 8) Harendra Rai Vs. State Of Bihar & Ors.: 2023 STPL(Web) 241 SC

Penal Code, 1860, Section 302 – Murder – Conviction set aside – As per the ocular account of PW-2 and PW-6, the assault on the deceased took place between 7 pm and 8 pm of 25.08.1989 – Neither PW-2 nor PW-6 lodged the FIR – FIR was lodged on 26.08.1989 at 10 am by PW-9 i.e., village Chowkidar of neighbouring village, even though she was not an eye witness – Statement of PW-9 assumes importance to ascertain the source of her information – Neither the trial court nor the High Court have carefully considered the deposition of PW-9 – PW-9 specifically stated that she was not informed by any person that he had witnessed the deceased being beaten –Held that the prosecution has not been able to convincingly prove the genesis of the crime as also the manner in which the murder took place and by whom – Evidence led by the prosecution gives rise to a strong probability of the killing being a consequence of mob action on the deceased for his alleged involvement with a lady of the village – Taking into account that it was a case of night occurrence, the body of the deceased was found at an open place near a temple; a named FIR was lodged not by any villager of the place where the deceased was assaulted, but by PW-9 i.e., the village Chowkidar of the neighbouring village, who admits that no eye witness had informed her; and the body was found at a distance of 300 feet from the place where the deceased was allegedly assaulted – Though, the prosecution relied on seizure of lathis and clothes at the instance of the accused but these incriminating circumstances have been denied and the serologist report could not confirm the origin of blood stains found thereon – That apart, next to the dead body of the deceased, a lathi was found – This lathi alone could have caused the injuries found on deceased’s body – Unexplained presence of the lathi is of significance when it is not the case of the prosecution that the deceased had used the lathi in self-defence – For all the reasons above, do not consider seizure of lathi and clothes from the accused as a clinching circumstance warranting conviction – This is a fit case where the accused are entitled to the benefit of doubt – Judgment and order of the High Court as well as of the Trial Court liable to be set-aside – The appellants acquitted of the charge for which they have been tried.(Para 16, 24 to 26) Harilal Etc. Vs. State Of Madhya Pradesh (Now Chhattisgarh): 2023 STPL(Web) 243 SC

Criminal Procedure Code, 1973, Section 154 – FIR – Delay in lodging –Held that when an FIR is delayed, in absence of proper explanation, the courts must be on guard and test the evidence meticulously to rule out possibility of embellishments in the prosecution story, inasmuch as delay gives opportunity for deliberation and guess work – More so, in a case where probability of no one witnessing the incident is high, such as in a case of night occurrence in an open place or a public street. (Para 19) Harilal Etc. Vs. State Of Madhya Pradesh (Now Chhattisgarh): 2023 STPL(Web) 243 SC

Constitution of India, Article 32 – Juvenile Justice (Care and Protection of Children) Act, 2000, Section 7A(1), Section 16 read with Section 15(1)(g) – Juvenile Justice – Plea of juvenility – Two months after the dismissal of the SLP, the petitioner filed the present Writ Petition praying that a Writ of Mandamus be issued to the State to verify his claim of juvenility and to pass necessary consequential orders – Held that the question of juvenility can be raised before any Court and at any stage, as prescribed under Section 7A(1) of the Act, 2000 – In the report dated 13.05.2023, the Additional Sessions Judge, Khammam, has categorically come to the conclusion that the date of birth of petition is 02.05.1989. The report is based on a detailed examination of the documents, Exhibits C1 to C7, coupled with the oral evidence of witnesses CW-1 and CW-2 – No hesitation in accepting the same – If the date of birth of the petitioner is 02.05.1989, he was 16 years 7 months old as on the date of the crime, i.e., 21.12.2005 – Accordingly, the petitioner was a juvenile in conflict with the law on the date of commission of the offence -In view of Section 16 read with Section 15(1)(g) of the Act, 2000, the maximum period for which the petitioner could have been in custody is three years – Petitioner has undergone more than 12 years of imprisonment – Having accepted the report of the II Additional Sessions Judge, Khammam, the petitioner can no longer be incarcerated – Writ Petition allowed and directed that the petitioner be released forthwith, if he is not required to be detained in any other case. (Para 4 to 8) Makkella Nagaiah Vs. State of Andhra Pradesh: 2023 STPL(Web) 245 SC

Penal Code, 1860, Section 302 – Circumstantial evidence – Evidence of last seen – Major discrepancy in the charge framed by the Court and the statement of the witnesses – Judgment and order of acquittal passed by trial Court reversed by High Court – Allegation is that Accused No.1- appellant herein along with Accused No.2 with a common intention killed the deceased – The motive statedly being that the deceased had developed illicit intimacy with the appellant’s sister – It is alleged that both accused had further tried to destroy evidence by setting fire to the dead body by pouring petrol – Major discrepancy in the charge framed by the Court and the statement of the witnesses – the specific allegation that A2 was the one who had taken away the deceased from his house, whereas during deposition the deceased’s wife and his brother have stated that it was the appellant who had taken away the deceased is enough to raise doubts with regard to the veracity and authenticity of such statements – Furthermore, the fact that the deceased, late at night, agreed to go to the house of the appellant, when seen in the backdrop of the allegation that there was strong animosity between the two, appears to be highly improbable – These circumstances creating a doubt as to the appellant’s involvement in the crime attain more credence when gauged apropos the factum of the deceased being missing for more than two days, yet neither his wife nor his brother reported the deceased as missing – It does not appear that the deceased’s family took any steps to find out as to where the deceased had gone – The deceased’s wife has testified that relations between the parties were cordial, and has not hinted at animosity – There is no definitive evidence of last seen as also the fact that there is a long time-gap between the alleged last seen and the recovery of the body, and in the absence of other corroborative pieces of evidence, it cannot be said that the chain of circumstances is so complete that the only inference that could be drawn is the guilt of the appellant – Impugned Judgment of conviction and sentence passed by the High Court liable to be set aside -The appellant is discharged from the liability of his bail bonds. (Para 13, 17 and 19) R. Sreenivasa Vs. State of Karnataka: 2023 STPL(Web) 246 SC

Penal Code, 1860, Sections 450 & 302, 304 – Murder – Nature of offence – Culpable homicide not amounting to murder – Appellant and the deceased were in love with each other – The fact that deceased had stopped talking to the appellant and she was talking to her neighbour Mr. ‘S’ had ignited the mind of the appellant to be furious about the conduct of the deceased and he was upset about this change of attitude of the deceased – Even according to the testimony of PW-1, who is none other than mother of the deceased there was altercation between the appellant and the deceased and exchange of words between appellant and deceased with regard to their love affair – On being confronted by the appellant as to why the accused had stopped talking to him and as to why she was trying to develop friendship with ‘S’ and the answer given by the deceased had resulted in appellant’s getting infuriated and in that spur of the moment he caught hold of her hair and banged her head to the wall which resulted in blood oozing out and on seeing this he ran away from the scene of the incident – Held that the single assault by the appellant coupled with the duration of the entire period having occurred for about 2-3 minutes would not be sufficient to infer that he had the intention to kill the deceased – Had there been any intention to do away with the life of the deceased, obviously the appellant would have come prepared and would have assaulted the deceased with pre-meditation -The conviction of the appellant under Section 302 IPC is altered/converted to one under Section 304 part II IPC – For the altered conviction, the appellant sentenced to the imprisonment to the period already undergone and shall be released forthwith if not required in any other case. (Para 13, 14, 20 and 21) N. Ramkumar Vs. State Rep. By Inspector Of Police: 2023 STPL(Web) 247 SC

Prevention of Money Laundering Act, 2002, Section 4 – Bail – Money Laundering – Allegation against the petitioner of possessing the amount of Rs.30 lakh in his bank account – There is an explanation as put forth by the petitioner during the course of investigation in answer to the specific question on being confronted with the account details in Jharkhand Gramin Bank – The explanation is that the amount was deposited by him in respect of the transaction for purchase of house with land in Asansol for Rs.26 lakhs – At the point of hearing this petition, it was stated across the bar that the sale has also been registered – Held that these are aspects which would be looked at during the course of the trial – Petitioner was arrested on 05.08.2022 and he has spent a little over one year of incarceration – The chargesheet is filed and the Trial Court having framed the charges, the trial has started -Five witnesses have been examined and that in all 42 witnesses are cited to be examined – Taking into consideration all aspects of the matter and also making it subject to the condition that the petitioner shall diligently participate in the trial without interfering in the course of justice and also complying with the other appropriate conditions to be imposed by the trial court, directed that the petitioner be enlarged on bail subject to appropriate conditions being imposed by the trial court.(Para 7 to 9) Bachhu Yadav Vs. Directorate Of Enforcement Government Of India Represented By Its Assistant Director (Pmla) & Anr.: 2023 STPL(Web) 250 SC

Delhi Special Police Establishment Act, 1946 , Section 6A(1) – Constitution of India, Article 13(2), 20 – Law Declared unconstitutional – Null and Void ab initio – Whether the declaration made by a Constitution Bench in the case of Subramanian Swamy vs. Director, Central Bureau of Investigation and another[(2014) 8 SCC 682], that Section 6A(1) of the Act, 1946 being unconstitutional, can be applied retrospectively in context with Article 20 of the Constitution – Section 6A(1), which required approval of the Central Government to conduct any inquiry or investigation into any offence alleged to have been committed under the PC Act, 1988 where such allegation relates to: (a) the employees of the Central Government of the level of Joint Secretary and above, and (b) such officers as are appointed by the Central Government in corporations established by or under any Central Act, government companies, societies and local authorities owned or controlled by the Government – Held that Article 20(1) of the Constitution has no applicability either to the validity or invalidity of Section 6A of the DSPE Act – Once a law is declared to be unconstitutional, being violative of Part-III of the Constitution, then it would be held to be void ab initio, still born, unenforceable and non est in view of Article 13(2) of the Constitution and its interpretation by authoritative pronouncements – Thus, the declaration made by the Constitution Bench in the case of Subramanian Swamy (supra) will have retrospective operation – Section 6A of the DSPE Act is held to be not in force from the date of its insertion i.e. 11.09.2003. (Para 1 and 43) CBI Vs. R.R. Kishore : 2023 STPL(Web) 258 SC

Criminal Procedure Code, 1973, Section 482 – Penal Code, 1860, Section 409 and 120B – Quashing of criminal proceedings – No Criminal Liability – Whether a transferee entity (here, a successor bank) can be fastened with corporate criminal liability for the offences which the amalgamating entity- the erstwhile LVB is accused of? – FIR alleged that appellant-RFL had placed four FDs with a combined value of Rs. 750 Crores as security for short-term loans and LVB extended loans to RHC Holding and Ranchem, utilizing these FDs as security – When RHC Holding and Ranchem defaulted on their loan payments, LVB debited an amount of Rs. 723.71 crores from RFL’s current account without obtaining proper authorization or prior notice – Held that the criminal liability of the individuals now attributed to DBS are actions of (1) ‘A’, (2) ‘S’, (3) ‘P’ and (4) ‘Pa’ – They were all officials of LVB – Their individual responsibility and accountability in criminal law, is and remains unaffected by the amalgamation – There is in fact, no involvement of DBS Bank, revealed in the charge sheet filed by the Delhi Police – To permit prosecution of DBS for the acts of LVB officials (who are in fact, facing criminal charges) would result in travesty of justice – Pending criminal proceedings to the extent it involves DBS, which was the subject matter of the impugned judgment and all consequent proceedings arising therefrom to the extent of involvement of DBS, are liable to be quashed. (Para 22, 34 and 35) Religare Finvest Limited Vs. State Of Nct Of Delhi & Anr.: 2023 STPL(Web) 260 SC

Penal Code, 1860, Sections 341, 302 read with 34 – Murder – Common intention – PWs proved that all the five accused persons have surrounded (gheraoed) the deceased and her daughter-in-law ‘B’ in the early hours of the day while they were returning to their home after performing their day’s routine at the pond and had assaulted the deceased with tangi, tabala and lathi on her head due to which she fell down and died instantaneously – The injuries she received were enough to cause death – Submission on behalf of the appellants that they never had any common intention to kill the deceased and that they simply wanted to teach a lesson to the deceased so that she may not indulge in her practices of witchcraft in future repelled – Admittedly an altercation had taken place between the parties on the previous night in which all the five accused persons were present – It is in furtherance of the said quarrel that all of them had appeared in the morning with reinforced vengeance -The very fact that they had assembled in the morning and surrounded (gheraoed) the deceased with deadly weapons is sufficient indication to infer that they had surrounded (gheraoed) in a pre-planned manner with a pre-determined mind – Moreover, the nature of injuries which have been caused on the head of the deceased with the deadly weapons proves that they had assembled with the common intention and not merely to threaten her or to deter her from practicing witchcraft – Two of the accused persons A-3 and A-5 had no weapons with them or might not have assaulted the deceased but certainly they were part of the team that surrounded (gheraoed) the deceased with the common intention to kill after they had an altercation with her the previous night on the subject of practicing witchcraft -Held that the trial court had not committed any error in convicting and sentencing the accused persons with imprisonment of life – The conviction and sentence have rightly been affirmed by the High Court – A-1 and A-3 have served a total period of 15 years, 9 months & 24 days and 11 years, 7 months & 5 days (without remission) respectively as on the date of the certificate – Permitted to seek remission in accordance with the prevailing policy of the State – The application shall be decided in accordance with applicable policy within three months from the date of filing. (Para 15 to 20) Bhaktu Gorain & Anr. Vs. State of West Bengal: 2023 STPL(Web) 262 SC

Penal Code, 1860, Section 396 read with Section 149, Section 395 read with Section 149, Section 307 read with Section 149, Section 435 read with Section 149 and Section 201 read with Section 149 – Appeal against conviction – Identification first time in Court – Testimony sole eye witness – Appreciation of evidence – Held that the identification of the appellant for the first time in the Court after a lapse of about two years becomes doubtful because the appellant was not known to PW2; the appellant was part of a large aggressive mob of 50 to 100 people which surrounded the autorickshaw; there was no identification parade held; there was no time available to PW2 to note the distinctive features of the appellant – Hence, it is very unsafe to record a conclusion based only on the testimony of the solitary witness that the guilt of the appellant was proved beyond a reasonable doubt – Even if the evidence of PW2 is categorised as “neither wholly reliable nor wholly unreliable,” the appellant cannot be convicted only based on the sole testimony of PW2 unless there is a corroboration to the version of PW2 either by direct or circumstantial evidence – Such a corroboration is completely absent in this case – Therefore, the conviction of the appellant cannot be sustained. (Para 8) Javed Shaukat Ali Qureshi Vs. State Of Gujarat: 2023 STPL(Web) 265 SC

Constitution of India, Article 21, 136 – Penal Code, 1860, Section 396 read with Section 149, Section 395 read with Section 149, Section 307 read with Section 149, Section 435 read with Section 149 and Section 201 read with Section 149 – Conviction order – Suo motu powers – Exercise of – Non appellant accused – Principle of parity – Only role ascribed to accused nos.2,3 and 4 was that they were a part of the mob – No overt act was ascribed to them – The Trial Court believed the testimony of PW25 and PW26 – Both PW25 and PW26 identified accused no.2 – However, a test identification parade was not conducted – Assuming that PW25 and PW26 identified accused nos.2, 3 and 4 by stating that they were members of the mob; once a Coordinate Bench of this Court discards their testimony in its entirety being unreliable, the benefit of the said finding will have to be extended to the accused nos.2,3 and 4 as they are similarly placed with accused nos.1,5 and 13 – Held that if the same relief is not extended to accused nos. 3 and 4 by reason of parity, it will amount to violation of fundamental rights guaranteed to accused nos. 3 and 4 by Article 21 of the Constitution of India – Benefit which is granted to accused nos. 1,5 and 13 deserves to be extended to accused nos.3 and 4, who did not challenge the judgment of the High Court – In this case, the suo motu exercise of powers under Article 136 is warranted as it is a question of the liberty of the said two accused guaranteed by Article 21 of the Constitution. (Para 9 to 17) Javed Shaukat Ali Qureshi Vs. State Of Gujarat: 2023 STPL(Web) 265 SC

Constitution of India, Article 21, 136 – Penal Code, 1860, Section 396 read with Section 149, Section 395 read with Section 149, Section 307 read with Section 149, Section 435 read with Section 149 and Section 201 read with Section 149 – Dismissal of SLP summarily of one accused – Acquittal of other similarly placed accused – Principle of parity –Recall of order – By the order dated 11th May 2018, a special leave petition filed by accused no.2 was summarily dismissed without recording any reasons – Held that an order refusing special leave to appeal by a nonspeaking order does not attract the doctrine of merger – Case of accused no 2 stands on the same footing as accused nos. 1,5 and 13 acquitted by this Court – The accused no.2 must get the benefit of parity – The principles laid down in the case of Harbans Singh v. State of U.P. & Ors.[(1982) 2 SCC 101]. will apply – Failure to grant relief to accused no 2, the rights guaranteed to accused no. 2 under Article 21 of the Constitution of India will be violated – Order dated 11th May 2018 in SLP (Crl.) Diary No.13063 of 2018 recalled and leave granted – For the reasons set out above, accused no. 2 Pathan stands acquitted by setting aside the impugned judgment of the Trial Court and the High Court to that extent – He shall be forthwith set at liberty unless he is required to be detained in connection with any other offence. (Para 18 to 21) Javed Shaukat Ali Qureshi Vs. State Of Gujarat: 2023 STPL(Web) 265 SC

Penal Code, 1860, Section 84, 302 – Murder – Plea of insanity – Judgment and order of acquittal passed by the trial Court reversed by High Court – Held that standard of proof to prove the lunacy or insanity is only ‘reasonable doubt’ – High Court had reversed the finding of acquittal and convicted the appellant mainly on reappreciation of evidence by holding that the Trial Court erred in extending the benefit of Section 84 of IPC, without even recording a finding that the Trial Court’s finding is perverse – In the light of the evidence discussed by the Trial Court including the medical evidence about the mental illness of the appellant-accused and his abnormal behaviour at the time of occurrence, it does not appear that the view taken by the Trial Court was perverse or that it was based on without any evidence – High Court erred in setting aside the judgment of acquittal rendered by the Trial Court – Judgment impugned dated 24.08.2022 and the order dated 05.09.2022 passed by the High Court liable to be set aside and the judgment of acquittal dated 30.10.2018 passed by the Trial Court affirmed -Appellant-accused acquitted of the charge under Section 302 IPC. (Para 20, 24 to 27) Rupesh Manger Vs. State Of Sikkim: 2023 STPL(Web) 267 SC

Consumer

Consumer Protection Act, 1986, Section 2(1)(f), (g) and 14(1)(d) -Defective vaccine – Burden of proof – No documentary evidence placed on record to indicate the very basic issue of the purchase of the vaccine and the same being administered – Family doctor of the appellant namely filed his affidavit stating that the Engerix B injection was administered by him to the appellant on 10.08.1998 at the deltoid muscle on the left arm – The said doctor has stated that the vaccine was a single dose adult vaccine bought from a chemist in Pune – There is no details indicated as to whether he had advised and on his prescription the said vaccine was purchased – Held that in a matter of the present nature where the appellant contends that he and his family members had taken the vaccination and his family members had no complaint whatsoever and also insofar as the appellant, since the earlier two doses had not caused any problem or discomfort but the pain was noticed only after final dose, the matter requires to be viewed with circumspection – Hence the onus to discharge the initial burden was heavy on the appellant to establish his case in a fact of the present nature – Except for the affidavit filed by the doctors known to the appellant, there is no other evidence available on record – The second witness on behalf of the appellant is his uncle who is stated to have been consulted by the appellant – The statements as contained in the said affidavit are more to refer with regard to the advice that they have tendered to the appellant and also to state with regard to similar complaint having come to their knowledge – Initial burden to be discharged by the appellant has not been discharged to substantiate the allegation which was made in the complaint. (Para 9 and 14) Prakash Bang Vs. Glaxo Smithkline Pharmaceuticals Ltd. & Anr.:2023 STPL(Web) 244 SC

Consumer Protection Act, 1986, Section 2(1)(f), (g) and 14(1)(d) – Purchase of vaccine – Deficiency in service – Whether the non-mentioning of ‘myositis’ being suffered as an adverse reaction in the literature accompanying the injection or on the ‘vial’ amounts to ‘deficiency of service’, more particularly when the adverse reaction was minimal only to the extent of 0.02 in one million? – Affidavit filed on behalf of the respondents would indicate the detailed procedure that is followed for certification of the drug – It is only after such certification the drug is available in the market – Nothing has been placed on record to indicate that this is a drug which was available ‘of the shelf’, without prescription – Very affidavit filed on behalf of the complainant by the family doctor refers to the purchase of the vaccine and the same being administered by him – The said family doctor also owed a duty to his patient and if he has prescribed the said drug it was incumbent on him to know more details about the vaccination before prescribing or administering the same – From the very details furnished by the respondents, the instance of ‘myositis’ being minimal to the extent of 0.02 in a million, to contend that there was negligence on the part of the respondent is also not acceptable – Except for the appellant assuming that he has suffered ‘myositis’ and the cause for the same was the Engerix-B vaccine being administered, the same has not been established with the minimal required evidence to conclude even on preponderance of probability – That apart, even muscle biopsy which was required by the respondents was not furnished so as to enable the respondents to take an ultimate decision in the matter – Held that the appellant cannot be heard to complain that the respondents have not attempted to redress his grievance – NCDRC has not committed any error so as to call for interference with the impugned order. (Para 15 to 18) Prakash Bang Vs. Glaxo Smithkline Pharmaceuticals Ltd. & Anr.:2023 STPL(Web) 244 SC

Consumer Protection Act, 1986, Section 2(1)(d) – Consumer – Commercial purpose – Booking of a commercial space – appellants have specifically pleaded that they were in search of office space “for their self-employment and to run their business and earn their livelihood”. In the statement recorded on oath by the Commission, while hearing the maintainability of the complaint, the first appellant has stated that he was earlier engaged in the business of caustic soda as a dealer of M/S Reliance Industries and presently engaged in the business of investment/dealing in property. He has nowhere stated that he had proposed to purchase the office space from the respondent for the purpose of either selling the same for higher price or the said property was being purchased as an investment for being sold in future. The statement of the appellant was that he engaged in the business of investment/dealing in property would not ipso facto suggest or indicate the property proposed to be purchased from the respondent was for commercial purpose – Finding recorded by the Commission that appellant is not ‘consumer’ held to be erroneous and contrary to the definition clause of the expression “consumer” as defined under section 2(1)(d).(Para 13) Rohit Chaudhary & Anr. Vs. M/S Vipul Ltd.: 2023 STPL(Web) 251 SC

Consumer Protection Act, 1986, Section 2(1)(d) – Consumer – Commercial purpose – Booking of a commercial space – Delay in completion of commercial space – Refund of booking amount – Interest – Clause 15 of the buyer’s agreement would clearly indicate that the possession of the premises was agreed to be delivered within 24 months from the date of agreement which undisputedly had not taken place – In the counter affidavit filed by the respondent it is not pleaded that the commercial space allotted to the appellants is ready for occupation – The statement of account dated 28.01.2014 forwarded to the appellants by the respondent would indicate the receipt of payment of Rs.51,10,117/- by the respondent – Appellants have already repudiated the contract – Respondent directed to refund sum of Rs.51,10,117/- with interest @ 12% per annum from the date of complaint till date of payment with litigation cost of Rs. one lakh. (Para 15 to 17) Rohit Chaudhary & Anr. Vs. M/S Vipul Ltd.: 2023 STPL(Web) 251 SC

Contempt

Contempt of Court Act, 1971, Section 2(b) – Contempt of Court – Expression or word “wilful” – Held that expression or word “wilful” means act or omission which is done voluntarily or intentionally and with the specific intent to do something which the law forbids or with the specific intent to fail to do something the law requires to be done – It is with bad purpose either to disobey or to disregard the law – It signifies a deliberate action done with evil intent or with a bad motive or purpose. (Para 56) Balwantbhai Somabhai Bhandari Vs. Hiralal Somabhai Contractor (Deceased) Rep. By Lrs. & Ors.: 2023 STPL(Web) 253 SC

Contempt of Court Act, 1971, Section 2(b) – Contempt of Court – Wilful Breach – Whether the wilful breach of an assurance in the form of an undertaking given by a counsel/ advocate on behalf of his client to the court would amount to “civil contempt” as defined under Section 2(b) of the Act 1971? – Whether in the present case an undertaking could be said to have been given to the court? – Held that an undertaking or an assurance given by a lawyer based upon which the court decides upon a particular course of action would definitely fall within the confines of “undertaking” as stipulated under Section 2(b) of the Act 1971 and the breach of which would constitute “civil contempt” – If a party or solicitor or counsel on his behalf, so as to convey to the court a firm conviction that an undertaking is being given, that party will be bound and it will be no answer that he did not think that he was giving it or that he was misunderstood – The breach of an undertaking given to a court by a person in a pending proceeding on the faith of which the court sanctions a particular course of action is misconduct amounting to contempt – High Court was justified in saying while holding the appellants guilty of civil contempt that but for the undertaking, the respondents in the Special Civil Application No. 16266 of 2013 who were the appellants in the LPA (Stamp) No.1196 of 2015 (respondents before this Court) would not have withdrawn the appeal as not pressed – High Court is right in saying that it is this undertaking given to the court on 14.10.2015 that persuaded the respondents herein to withdraw the said appeal and it is such solemn assurance given to the court which per forced them to withdraw the appeal by recording the statement made by the learned Senior Counsel appearing on behalf of the contemnors – Thus, the wilful breach of an assurance in the form of an undertaking given by a counsel /advocate on behalf of his client to the court would amount to “civil contempt” as defined under Section 2(b) of the Act 1971 – Having regard to all the facts on record that the undertaking in the case on hand could be said to have been given to the court. (Para 73 to 77) Balwantbhai Somabhai Bhandari Vs. Hiralal Somabhai Contractor (Deceased) Rep. By Lrs. & Ors.: 2023 STPL(Web) 253 SC

Contempt of Court Act, 1971, Section 2(b) – Transfer of Property Act, 1882, Section 52 – Contempt of Court – Power – Whether the contempt court has the power to declare any contemptuous transaction non est or void? In other words, although the transfer of the suit property pendente lite is not void ab initio yet when the court is looking into such transfers in contempt proceedings, whether the court can declare such transactions to be void in order to maintain the majesty of law? – Held that although Section 52 of the Act 1882 does not render a transfer pendente lite void yet the court while exercising contempt jurisdiction may be justified to pass directions either for reversal of the transactions in question by declaring the said transactions to be void or proceed to pass appropriate directions to the concerned authorities to ensure that the contumacious conduct on the part of the contemnor does not continue to enure to the advantage of the contemnor or anyone claiming under him – High Court declared all the sale deeds executed by the contemnors in favour of the purchasers as non est – High Court ordered that the sale deeds stand cancelled and set aside – The contemnors were directed to restore the position which was prevailing at the time of the order dated 14.10.2015 passed by the High Court – High Court was fully justified in declaring the sale deeds as non est or void. (Para 88 and 89) Balwantbhai Somabhai Bhandari Vs. Hiralal Somabhai Contractor (Deceased) Rep. By Lrs. & Ors.: 2023 STPL(Web) 253 SC

Contempt of Court Act, 1971, Section 2(b) – Contempt of Court – Necessary party – Impleadment of purchaser – Whether the beneficiaries of a contemptuous transaction have a right to be heard in the contempt proceedings on the ground that they are necessary or proper parties as they are bona fide purchasers of the suit property for value without notice? – Held that it was not necessary for the High Court to implead the purchasers in the contempt proceedings -Having regard to the facts of the case that the purchasers were quietly watching the proceedings, it is not as if they were not aware of what was happening – However, when things went wrong, they now cry foul of not being impleaded as parties and heard by the High Court – Not prepared to believe that even while the sale transactions were being effected they were not aware of the undertaking given before the High Court that the properties would not be sold till the final disposal of the main matter.(Para 97) Balwantbhai Somabhai Bhandari Vs. Hiralal Somabhai Contractor (Deceased) Rep. By Lrs. & Ors.: 2023 STPL(Web) 253 SC

Contempt of Court Act, 1971, Section 2(b), 12 – Contempt of Court – Apology – Whether the apology tendered by the contemnors deserves to be accepted or is it a legal trick to wriggle out of responsibility? –Held that apology is not just a word – The court should not accept the apology when it appears that saying sorry is nothing but a legal trick to wriggle out of responsibility – A true apology must be a deep ethical act of introspection, self-introspection, atonement and self-reform – In its absence, an apology can be termed as farce – It is equally well-settled that apology tendered is not to be accepted as a matter of course and the court is not bound to accept the same – Although, the apology may be unconditional, unqualified and bona fide, yet, if the conduct is serious which has caused damage to the dignity of the institution the same need not to be accepted – Although the appellants might have tendered the apology before the High Court in the first instance, yet such apology does not deserve to be accepted and was rightly not accepted by the High Court – It was nothing but a gamble on the part of the appellants – It is a lame excuse on their part to say that they were left with no choice but to execute the sale deeds – They took a calculated risk to transfer the properties and pocketed the sale consideration – If there was any impending urgency to execute the sale deeds, they could have come to the High Court and should have obtained appropriate clarification or permission in that regard – Appellants with a view to gain wrongfully gambled in the hope that ultimately, they would get away by tendering an apology – This is the reason why such fake apologies should not be accepted by the court and allow a person who has no regard for the Majesty of law to get away from the legal consequences – The fact that the appellants have committed contempt is not in doubt. The law enjoins that a punishment must follow. (Para 111 to 113) Balwantbhai Somabhai Bhandari Vs. Hiralal Somabhai Contractor (Deceased) Rep. By Lrs. & Ors.: 2023 STPL(Web) 253 SC

Constitutional Law

Dishonour of Cheque

Negotiable Instruments Act, Section 138 and 142 – Contract Act, 1872, Section 25(3) – Limitation Act, 1963, Article 34 – Dishonour of cheque – Limitation – Promissory note – Legally recoverable debt – Quashing of complaint –Findings by High Court that the limitation for enforcing the promissory notes had expired much prior to the issuance of the cheques in question, as such, this was a fit case for quashing since the complaint filed seeking prosecution was not in respect of a legally recoverable debt – Promissory notes are of the year 2012 – Promise is to repay the principal amount with the interest accrued within December, 2016 -Cause of action to initiate proceedings to recover the said amount if not paid within December 2016 would arise only in the month of December, 2016 –Provision of Article 34 of the Act, 1963 would indicate that in respect of a promissory note payable at a fixed time, the period of limitation being three years would begin to run when the fixed time expires – Held that the time would begin to run from the month of December, 2016 and the period of limitation would expire at the end of three years thereto i.e. during December, 2019 – Cheque issued for Rs.10,00,000/- which is the subject matter herein is dated 28.04.2017 which is well within the period of limitation – The complaint was filed in the Court of the Chief Metropolitan Magistrate on 11.07.2017 – Therefore, not only the amount was a legally recoverable debt, the complaint was also filed within time – There was no occasion whatsoever in the instant case to exercise the power under Section 482 to quash the complaint – Order impugned passed by the High Court held to be not sustainable and liable to be set aside. (Para 13 to 15) K. Hymavathi Vs. State of Andhra Pradesh & Anr.: 2023 STPL(Web) 252 SC

Education

NEET (PG) and the INI-CET/2023 – Foreigners Act, 1946 – Citizenship Act, 1955, Sections 7A to 7D – Education – Overseas Citizen of India card (OCI) holder – Admission – Post Graduate medical seat – OCI card holder – Petitioner was treated as a foreign national and allowed to appear in the NEET mains- as OCI cardholder – She even secured a fairly high rank – She was allowed to participate in the mock rounds of allocations which led to an indication that she would be offered PG in Paediatrics in AIIMS – Relying upon notification, i.e. 04.03.2021 which provides that such OCI card holders could not claim the privilege of eligibility for admission in any competitive entrance examination “any seat reserved exclusively for Indian citizens, just before the first round of counselling she was informed that her status would no longer be as a foreign national and that she would be treated as an Indian national – Apex court in Anushka Rengunthwar & Ors. V. Union of India & Ors. held that notification (dated 04.03.2021) operated arbitrarily because firstly it indicated non-application of mind in not saving accrued rights and that only those persons who obtained OCI Cards after 04.03.2021 were rendered ineligible in terms of the notification – Held that although the OCI Card relied upon by the petitioner on 04.08.2022, the fact that she was in fact issued the OCI registration card first, on 02.11.2015 – Held that the petitioner’s eligibility to claim the benefit of OCI card holder in terms of the ruling in Anushka (supra) is undeniable – The rejection of her candidature at this stage, i.e. on 19.06.2023 is not supportable in law – She is consequently directed to be considered in remaining counselling rounds by the AIIMS and all participating institutions for PG Medical seats. (Para 14 to 17) Pallavi Vs. Union Of India & Ors.: 2023 STPL(Web) 228 SC

Election

Family

Hindu Marriage Act, 1955, Section 4, 5, 11, 12, 16 and 17 – Hindu Succession Act, 1956, Section 3(j), 6, 8, 10, 16 – Hindu Succession – Property of the Parents – Hindu Mitakshara coparcener – Whether a child who is conferred with legislative legitimacy under Section 16(1) or 16(2) is, by reason of Section 16(3), entitled to the ancestral/coparcenary property of the parents or is the child merely entitled to the self-earned/separate property of the parents –Held that in working out the share of such an individual who is entitled to the benefit of the statutory conferment of legitimacy by the two sub-sections of Section 16, it is important to ascertain what exactly is the property of the parent which comes up for devolution by intestate succession under Section 6(3) of the HSA 1956 – Where the parent is a Hindu Mitakshara coparcener, the Explanation mandates that his share in the property has to be ascertained on the basis of a notional partition having taken place immediately before his death – The share of the Hindu male coparcener which is ascertained on the basis of a notional partition immediately before his death would be distributed among his heirs in terms of Section 10 of the HSA 1956 – The individual upon whom legitimacy has been conferred by Section 16(1) or Section 16(2) of the HMA 1955 would be entitled to a share in the property that would have been allotted to their parent assuming a notional partition immediately before the death of the parent – Such a construction would be in accordance with Section 6(3) and would harmonise it with the provisions of Section 16(3) of the HMA 1955 – Once legitimacy has been conferred upon such an individual under sub-section (1) or sub-section (2) of Section 16 of the HMA 1955, the proviso to Section 3(j) which deals with “illegitimate children” ceases to apply to children covered under Section 16(1) and Section 16(2). (Para 45, 48) Revanasiddappa & Anr. Vs. Mallikarjun & Ors.: 2023 STPL(Web) 227 SC

Hindu Succession Act, 1956, Explanation to Section 6 – Hindu Marriage Act, 1955, Section 11, 12, 16(1), 16(2), 16(3) – Hindu Mitakshara coparcener – Devolution of interest – Distribution of property – Right of a child whose legitimacy is protected under Section 16(1) , 16(2) of Ac, 1955 – Sub-section (3) of Section 6 indicates by a deeming provision what would constitute the interest of a Hindu Mitakshara coparcener – Deeming fiction requires an assumption of a hypothetical state of affairs in terms of which a notional partition is deemed to have taken place immediately before the death of the Hindu Mitakshara coparcener – Assume for the sake of example that there are four coparceners- C1, C2, C3, and C4. C2 has died. C2 is survived by a widow, a son, and a daughter but it so transpires that one of the children is born from a marriage which is null and void under Section 11 of the HMA 1955 – C2 would have a 1/4th share in the coparcenary which consisted of him and his three brothers’ C1, C3 and C4 – Now, in order to ascertain C2’s share in the property and the devolution of this shares among C2’s heirs, the Explanation mandates an assumption that a partition took place immediately before C2’s death – In such a partition, between him and his brothers, C2 gets 1/4th share in the larger coparcenary comprising himself and his 3 brothers – Now, within his own branch, C2, his widow and his child born from a valid marriage would each have a 1/3rd share – In other words, in the notional partition which is deemed to have taken place in terms of the Explanation the share of C2 is ascertained at 1/3rd – In working out the devolution of interest and the distribution of property following the death of C2, C2’s 1/3rd share would be equally distributed between his widow, child born from the marriage which was valid and the child born from the marriage whose legitimacy is protected by Section 16(1) of the HMA 1955 though the marriage was null and void – Such a child would have a share in the property which would be allotted to his parent (C2) if a partition had taken place immediately before the death of C2 – The widow would take a 1/3rd share (her share in the notional partition) plus 1/3rd in the 1/3rd share of C2 (her share in succession, as an heir to C2) – The child who was born from the valid marriage would acquire a 1/3rd share plus a 1/3rd share in C2’s 1/3rd share – The child who has the benefit of Section 16(1) of the HMA 1955 acquires a 1/3rd share in the 1/3rd share which was allotted to C2 presuming that the partition had taken place immediately before the death of C2 – This child, unlike the child born out of a lawful marriage, is not entitled to a share in the notional partition itself. (Para 43) Revanasiddappa & Anr. Vs. Mallikarjun & Ors.: 2023 STPL(Web) 227 SC

Hindu Succession Act, 1956, Explanation to Section 6, 10 – Hindu Marriage Act, 1955, Section 11, 12, 16(1), 16(2), 16(3) – Hindu Mitakshara coparcener – Devolution of interest – Distribution of property – Right of a child whose legitimacy is protected under Section 16(1) and 16(2) of the Act, 1955 –Held that while Section 16(1) and Section 16(2) of the HMA confer legitimacy on children from void or voidable marriages, sub-section (3) has circumscribed the extent of the right to or in property that would be enjoyed by a person who has statutorily been conferred with legitimacy under sub-sections (1) and (2) – Such an individual is not to possess any rights in or to the property of any person other than the parents – Hence, in working out the share of such an individual who is entitled to the benefit of the statutory conferment of legitimacy by the two sub-sections of Section 16, it is important to ascertain what exactly is the property of the parent which comes up for devolution by intestate succession under Section 6(3) of the HSA 1956 – Where the parent is a Hindu Mitakshara coparcener, the Explanation mandates that his share in the property has to be ascertained on the basis of a notional partition having taken place immediately before his death – The share of the Hindu male coparcener which is ascertained on the basis of a notional partition immediately before his death would be distributed among his heirs in terms of Section 10 of the HSA 1956 – The individual upon whom legitimacy has been conferred by Section 16(1) or Section 16(2) of the HMA 1955 would be entitled to a share in the property that would have been allotted to their parent assuming a notional partition immediately before the death of the parent – Such a construction would be in accordance with Section 6(3) and would harmonise it with the provisions of Section 16(3) of the HMA 1955. (Para 45) Revanasiddappa & Anr. Vs. Mallikarjun & Ors.: 2023 STPL(Web) 227 SC

Hindu Marriage Act, 1955, Section 4, 5, 11, 12, 16 and 17 – Hindu Succession Act, 1956, Section 3(j), 6, 8, 10, 16 -Hindu Mitakshara Joint Family – Legitimacy and Coparcenary – Right to the ancestral/coparcenary property – Whether a child who is conferred with legislative legitimacy under Section 16(1) or 16(2) is, by reason of Section 16(3), entitled to the ancestral/coparcenary property of the parents or is the child merely entitled to the self-earned/separate property of the parents – Held that while conferring legitimacy on children born from marriages that are void or, as the case may be, voidable under sub-section (1) and sub-section (2) of Section 16 of the HMA 1955, Parliament circumscribed the nature of the rights in property that such a child can seek – Such an individual does not ipso facto become a coparcener in the Hindu Mitakshara Joint Family – But the legislature has not stipulated that a child whose legitimacy is protected by sub-section (1) or sub-section (2) of Section 16 of the HMA 1955, would become a coparcener by birth – Held that when an individual falls within the protective ambit of sub-section (1) or sub-section (2) of Section 16, they would be entitled to rights in or to the absolute property of the parents and no other person. (Para 50 and 51) Revanasiddappa & Anr. Vs. Mallikarjun & Ors.: 2023 STPL(Web) 227 SC

Hindu Marriage Act, 1955, Section 11, 12, 16 –Hindu Succession Act, 1956, Section 3(1)(j), 6 – Hindu Mitakshara Joint Family – Legitimacy and Coparcenary – Whether the legislative intent is to confer legitimacy on a child covered by Section 16 in a manner that makes them coparceners, and thus entitled to initiate or get a share in the partition – actual or notional – Conclusions formulation in the following terms: (i) In terms of sub-section (1) of Section 16, a child of a marriage which is null and void under Section 11 is statutorily conferred with legitimacy irrespective of whether (i) such a child is born before or after the commencement of Amending Act 1976; (ii) a decree of nullity is granted in respect of that marriage under the Act and the marriage is held to be void otherwise than on a petition under the enactment; (ii) In terms of sub-section (2) of Section 16 where a voidable marriage has been annulled by a decree of nullity under Section 12, a child ‘begotten or conceived’ before the decree has been made, is deemed to be their legitimate child notwithstanding the decree, if the child would have been legitimate to the parties to the marriage if a decree of dissolution had been passed instead of a decree of nullity; (iii) While conferring legitimacy in terms of sub-section (1) on a child born from a void marriage and under sub-section (2) to a child born from a voidable marriage which has been annulled, the legislature has stipulated in subsection (3) of Section 16 that such a child will have rights to or in the property of the parents and not in the property of any other person; (iv) While construing the provisions of Section 3(1)(j) of the HSA 1956 including the proviso, the legitimacy which is conferred by Section 16 of the HMA 1955 on a child born from a void or, as the case may be, voidable marriage has to be read into the provisions of the HSA 1956 – In other words, a child who is legitimate under sub-section (1) or sub-section (2) of Section 16 of the HMA would, for the purposes of Section 3(1)(j) of the HSA 1956, fall within the ambit of the explanation ‘related by legitimate kinship’ and cannot be regarded as an ‘illegitimate child’ for the purposes of the proviso; (v) Section 6 of the HSA 1956 continues to recognize the institution of a joint Hindu family governed by the Mitakshara law and the concepts of a coparcener, the acquisition of an interest as a coparcener by birth and rights in coparcenary property – By the substitution of Section 6, equal rights have been granted to daughters, in the same manner as sons as indicated by sub-section (1) of Section 6; (vi) Section 6 of the HSA 1956 provides for the devolution of interest in coparcenary property. Prior to the substitution of Section 6 with effect from 9 September 2005 by the Amending Act of 2005, Section 6 stipulated the devolution of interest in a Mitakshara coparcenary property of a male Hindu by survivorship on the surviving members of the coparcenary. The exception to devolution by survivorship was where the deceased had left surviving a female relative specified in Class I of the Schedule or a male relative in Class I claiming through a female relative, in which event the interest of the deceased in a Mitakshara coparcenary property would devolve by testamentary or intestate succession and not by survivorship. In terms of sub-section (3) of Section 6 as amended, on a Hindu dying after the commencement of the Amending Act of 2005 his interest in the property of a Joint Hindu family governed by the Mitakshara law will devolve by testamentary or intestate succession, as the case may be, under the enactment and not by survivorship. As a consequence of the substitution of Section 6, the rule of devolution by testamentary or intestate succession of the interest of a deceased Hindu in the property of a Joint Hindu family governed by Mitakshara law has been made the norm. (Para 54) Revanasiddappa & Anr. Vs. Mallikarjun & Ors.: 2023 STPL(Web) 227 SC

Hindu Marriage Act, 1955, Section 11, 12, 16 – Hindu Succession Act, 1956, Section 3(1)(j), 6, 8, 10, 15, 16 – Hindu Mitakshara Joint Family – Legitimacy and Coparcenary – At what point does a specific property transition into becoming the property of the parent – For, it is solely within such property that children endowed with legislative legitimacy hold entitlement, in accordance with Section 16(3) – Section 8 of the HSA 1956 provides general rules of succession for the devolution of the property of a male Hindu dying intestate – Section 10 provides for the distribution of the property among heirs of Class I of the Schedule – Section 15 stipulates the general rules of succession in the case of female Hindus dying intestate – Section 16 provides for the order of succession and the distribution among heirs of a female Hindu- While providing for the devolution of the interest of a Hindu in the property of a Joint Hindu family governed by Mitakshara law, dying after the commencement of the Amending Act of 2005 by testamentary or intestate succession, Section 6 (3) lays down a legal fiction namely that ‘the coparcenary property shall be deemed to have been divided as if a partition had taken place’ – According to the Explanation, the interest of a Hindu Mitakshara coparcener is deemed to be the share in the property that would have been allotted to him if a partition of the property has taken place immediately before his death irrespective of whether or not he is entitled to claim partition – For the purpose of ascertaining the interest of a deceased Hindu Mitakshara coparcener, the law mandates the assumption of a state of affairs immediately prior to the death of the coparcener namely, a partition of the coparcenary property between the deceased and other members of the coparcenary – Once the share of the deceased in property that would have been allotted to him if a partition had taken place immediately before his death is ascertained, his heirs including the children who have been conferred with legitimacy under Section 16 of the HMA 1955, will be entitled to their share in the property which would have been allotted to the deceased upon the notional partition, if it had taken place – The provisions of the HSA 1956 have to be harmonized with the mandate in Section 16(3) of the HMA 1955 which indicates that a child who is conferred with legitimacy under sub-sections (1) and (2) will not be entitled to rights in or to the property of any person other than the parents – The property of the parent, where the parent had an interest in the property of a Joint Hindu family governed under the Mitakshara law has to be ascertained in terms of the Explanation to sub-section (3). (Para 54) Revanasiddappa & Anr. Vs. Mallikarjun & Ors.: 2023 STPL(Web) 227 SC

Joint Hindu Family – ‘A Larger body’ – Held that a Joint Hindu family comprises of male members who are lineal descendants from a common male ancestor, together with their mothers, wives or widows and unmarried daughters – A Joint Hindu family has been described as ‘a larger body’ consisting of a group of persons united by sapindaship or family relationship. (Para 21) Revanasiddappa & Anr. Vs. Mallikarjun & Ors.: 2023 STPL(Web) 227 SC

Hindu coparcenary – Held that a Hindu coparcenary comprises of a propositus and three lineal descendants – A Hindu coparcenary is a body which is narrower than a Hindu Undivided Family – Before 2005, it included only sons, grandsons and great-grandsons who were holders of joint property. (Para 22): 2023 STPL(Web) 227 SC

Hindu coparcenary – Held that the hallmark of a coparcenary is that a lineal male descendent up to the third generation would acquire an independent right of ownership by birth and the interest of a deceased member would lapse on his death and merge in the coparcenary property – A member of the coparcenary has a right to demand partition – Until partition, the property is jointly owned by all, and individual shares cannot be predicated by coparceners. (Para 24) Revanasiddappa & Anr. Vs. Mallikarjun & Ors.: 2023 STPL(Web) 227 SC

Mitakshara law – Held that Mitakshara law is founded on a community of interest which entails that the ownership of coparcenary property vests in the whole body of coparceners, jointly – The interest of a member of the coparcenary is a fluctuating interest, one which is capable of being enlarged by deaths and diminished by births in the family – On partition, however, the coparcener’s share crystallizes, and they become entitled to a definite share – The interest of a coparcener is in that sense referred to as ‘an undivided coparcenary’. (Para 25) Revanasiddappa & Anr. Vs. Mallikarjun & Ors.: 2023 STPL(Web) 227 SC

Hindu Succession Act, 1956, Section 6 and 8 – Partition suit – Coparcenary properties – ‘P’ had two brothers and would have been entitled to a 1/3rd share in the coparcenary properties, if a partition had been effected before his death – In fact, such a partition was actually effected in 1964 and ‘P’’s 1/3rd share was allotted to his only son, ‘V’ – However, ‘V’ was a coparcener in his own right in a separate coparcenary with his father and would be entitled to a share in that coparcenary property by birth – Therefore, he would be entitled to a half-share by birth in the I/3rd share of the coparcenary properties that was allotted as ‘P’’s share -The other half-share therein belonged to ‘P’ and as he died intestate, it would firstly devolve upon his Class I heirs, in terms of Section 8 of the Act of 1956 – His Class 1 heirs, as on the date of his death, were ‘K’ a daughter from first marriage, ‘V’ son and ‘K’ daughter from second marriage, i.e. his three children – His half-share would therefore be divided equally amongst the three of them, i.e., 1/6th each – In consequence, the final division of the 1/3rd share of ‘P’ in the coparcenary properties would be as follows: ‘V’ would be entitled to 4/6th share (1/2+1/6) therein, while his sisters, ‘K’ and ‘KB’, would each get 1/6th share therein, as they would be entitled to lay claim only to the half-share of ‘P’ – This is exactly what the Chhattisgarh High Court did and directed – Held that see no reason whatsoever to interfere in the matter. (Para 13) Derha Vs. Vishal & Anr. : 2023 STPL(Web) 229 SC

Hindu Marriage Act, 1955, Section 13(1) (ia) and 13(1A) – Divorce – Ground of cruelty – Held that the word ‘cruelty’ under Section 13(1)(ia) of the Act has got no fixed meaning, and therefore, gives a very wide discretion to the Court to apply it liberally and contextually – What is cruelty in one case may not be the same for another – It has to be applied from person to person while taking note of the attending circumstances – An element of subjectivity has to be applied albeit, what constitutes cruelty is objective – Therefore, what is cruelty for a woman in a given case may not be cruelty for a man, and a relatively more elastic and broad approach is required when we examine a case in which a wife seeks divorce. (Para 5 and 7) Roopa Soni Vs. Kamalnarayan Soni : 2023 STPL(Web) 249 SC

Hindu Marriage Act, 1955, Section 13(1) (ia) and 13(1A) – Divorce – Ground of cruelty – The marriage was solemnized in the year 2002 – It fell into rough weather after the birth of their child – Disputes started between the parties from 2006 onwards – The appellant–Wife registered a complaint under Section 498A IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961 – The respondent-Husband had questioned the character of the appellant-Wife – A plea was also taken in the counter affidavit filed in the petition for divorce – Incidentally, it was contended that it was she who had fled the matrimonial home – The respondent-Husband also demanded a medical examination of the appellant–Wife, alleging she was living in adultery and had given birth to a child during the period of non-cohabitation – The said request was nullified by the Order of the High Court – For a decade and half, the parties have been living separately – Trial Court and the High Court adopted a hyper-technical and pedantic approach in declining the decree of divorce – It is not as if the respondent- Husband is willing to live with the appellant–Wife – The allegations made by him against her are as serious as the allegations made by her against him – Both the parties have moved away and settled in their respective lives – There is no need to continue the agony of a mere status without them living together – Judgment of the Trial Court as confirmed by the High Court liable to be set aside and the appeal stands allowed by granting a decree of divorce. (Para 16, 17, 19 and 20) Roopa Soni Vs. Kamalnarayan Soni : 2023 STPL(Web) 249 SC

Limitation

Labour Law

Workmen Compensation Act, 1923, Section 30 (as amended by Act, 2009) – Workmen Compensation – Appeal – Substantial question of law – Commissioner had not returned any findings in respect of the validity or invalidity of the license of the deceased nor was it one of the questions framed by the Commissioner for consideration –Held that in such a situation, while exercising powers within the limited purview allowed by Section 30 of the Act, the learned Court below erred in making observations and giving a holding in that regard. (Para 31) Fulmati Dhramdev Yadav Vs. New India Assurance Co. Ltd.: 2023 STPL(Web) 232 SC

Workmen Compensation Act, 1923, Section 30 (as amended by Act, 2009) – Workmen Compensation – Substantial question of law – Cumulative sum of circumstances pointing to the employment of the deceased with the employer company -Legislation being intended for social welfare and protection of employees; the Commissioner being the last authority on facts; the scope of an appeal under the said Act being limited only to substantial questions of law; and no perversity could be demonstrated from the order of the Commissioner, the order passed in First Appeal No.3487 of 2013 liable to be set aside – Order passed by the Commissioner, Workmen Compensation restored. (Para 32 and 33) Fulmati Dhramdev Yadav Vs. New India Assurance Co. Ltd.: 2023 STPL(Web) 232 SC

Land Acquisition

Land Acquisition Act, 1894, Section 11A – Nagpur Improvement Trust Act, 1936, Section 39 and 45– Land acquisition – Lapse of proceedings – Whether the impugned judgment of the High Court negating the plea of appellant seeking ‘lapse’ of the acquisition proceedings in terms of Section 11A of LA Act is liable to be interfered with? – Acquisition of land under State Act, 1936 – Lapsing provision under Section 11A of Act, 1894 introduced by Act of 68 of 1984, does not apply to acquisition of land by Nagpur Improvement Trust under NIT Act, 1936 – Held that the High Court has not committed any error in negating the plea of lapsing of acquisition proceedings as raised by the appellant. (Para 13 to 15) Loonkaran Gandhi (D) Thr. Lr. Vs. State Of Maharashtra And Ors.: 2023 STPL(Web) 257 SC

Nagpur Improvement Trust Act, 1936, Section 39 and 45– Land acquisition – Alternative plot – Claim for – Whether decision of NIT refusing to grant alternative plot, as directed by the High Court, requires interference in this appeal? – High Court, directions were issued to NIT to consider the prayer for the grant of alternate land to the appellant – The said prayer was rejected by the Chairman, NIT on 31.12.2009, interalia stating that grant of alternate land in lieu of compensation is not possible in the absence of any provisions in the Act – The said rejection has not been separately challenged by the appellant and has attained finality – Held that the said plea does not have any statutory backing under NIT Act, therefore, refusal made by NIT does not warrant any interference. (Para 16) Loonkaran Gandhi (D) Thr. Lr. Vs. State Of Maharashtra And Ors.: 2023 STPL(Web) 257 SC

Nagpur Improvement Trust Act, 1936, Section 39, 45, 59, 61(b), 67 – Land Acquisition Act, 1894, Section 11A, Section 17A(6), 48A(14) – Land acquisition – Delay in grant of compensation – Whether in the peculiar facts of the case, delay caused in determination of compensation despite time bound directions by the High Court, what suitable relief can be granted to appellant? – Preliminary notification was published on 12.07.1962 followed by final notification on 16.01.1969 – The possession of the subject land was taken in 1970 and the road was constructed which is in public use since then – In the case of other land owners, award was passed on 22.09.1986, discriminating the land owner/appellant herein – Even after directions of the High Court in order dated 29.09.2009 to pass an award by 30.04.2010, it was passed ‘exparte’ after three years on 30.04.2013 during pendency of this appeal without adhering to the mandate of Section 12(2) of the LA Act – Consequently, appellant could not get compensation of the land since last five decades – Held that the value of the land which may be on the date of preliminary notification cannot be equated on the date of passing of ‘exparte’ award – As per Section 48A of LA Act, which is legislatively applicable as per the Schedule of NIT Act, it is clear that if the award is not passed within a period of two years from the date of final notification, compensation for the damages suffered due to delay is required to be determined as prescribed therein – In the peculiar facts of this case and to meet the ends of justice, deem it appropriate to mould the relief and direct that the SLAO shall pass a fresh award taking market value as on the date when the ‘exparte’ award was passed, i.e., 30.04.2013 – Observe that, other statutory benefits shall be reckoned and payable from the date of preliminary notification as per the provisions of the LA Act – Appellant shall be entitled for compensation for damages due to delay as specified under Section 48A of the LA Act within a period of four months. (Para 34 and 35) Loonkaran Gandhi (D) Thr. Lr. Vs. State Of Maharashtra And Ors.: 2023 STPL(Web) 257 SC

Practice and Procedure

Constitution of India, Article 136 – Practice and Procedure – Successive vexatious applications for restoration of review petition –Against judgment and decree passed in Second Appeal respondent-plaintiff filed SLP which was allowed to be withdrawn – Though this Court had not granted any specific permission to file any application seeking review of the judgment and decree passed in Second Appeal in the SLP(Civil) No. 1373 of 2013, after a period of more than three years, the respondents had preferred the MCA No. 01 of 2016 seeking review of the said judgment in Second Appeal – The said MCA No. 01 of 2016 having been dismissed for want of prosecution, the respondents kept on filing one after the other Miscellaneous Civil Applications i.e., 02 of 2016, 01 of 2017, 01 of 2018 and 01 of 2019 – All these applications were dismissed for want of prosecution – Held that under the circumstances, there was no question of allowing the MCA No. 03 of 2019 seeking restoration of MCA No. 01 of 2019 – High Court without assigning any reason whatsoever and in very casual manner has allowed the said application- No litigant should be permitted to be so lethargic and apathetic much less should be permitted to misuse the process of law, as the respondents have sought to do – High Court had committed gross error in allowing such vexatious applications and that too without assigning any reason – Impugned order passed by the High Court to the extent it allowed MCA (for restoration) No. 03 of 2019 in MCA No. 01 of 2019, liable to be set aside – Respondents shall deposit the cost of Rs.15,000/- as directed by the High Court. (Para 8 and 9) Vasant Nature Cure Hospital & Pratibha Maternity Hospital Trust & Ors. Vs. Ukaji Ramaji-Since Deceased Through His Legal Heirs & Anr. : 2023 STPL(Web) 268 SC

Service Law

Scientific and Technical Group “A” (Gazetted) posts in the Ministry of Information Technology (in-situ Promotion under Flexible Complementing Scheme) Rules 1998, Rule 4 – Service Law – Relief beyond pleadings –Declaring the Rules, 1998 ultra vires – Rule 4(b) of the Rules was not under challenge because the original application was filed prior to notifying the Rules vide office memorandum dated 06.08.2001 – Respondent no. 1 did not set out any grounds to declare Rule 4(b) of the Rules as ultra vires – No such relief was even prayed for in the writ petition – The respondent no. 1 in the writ petition merely sought a writ in the nature of certiorari to set-aside the order of the CAT – Held that in the given facts, there was no occasion for the High Court to declare Rule 4(b) as ultra vires – Order of the High Court declaring Rule 4(b) of the Rules liable to be set aside – No case has been made out as to how in the event of Rule 4(b) being valid, how the denial of promotion to her was unjustified for in the years 1999, 2000 and for the years before 2007 – Respondent no.1 had already been promoted during the pendency of the writ petition and has attained the age of superannuation by now – The issue of the validity of the promotion of her juniors (respondent nos. 5 & 6 in O.A. No. 148 of 2001) also does not survive, as their names were deleted by the CAT, vide order of 03.05.2001. (Para 5 to 11) Union Of India & Ors. Vs. Manjurani Routray & Ors. : 2023 STPL(Web) 226 SC

Uttar Pradesh Subordinate Offices Ministerial Group “C” Posts of the Lowest Grade (Recruitment by Promotion) Rules, 2001, Rule 5 – Service Law – Promotion – In the year 2014, there were five posts under the 15% quota for the candidates who had passed the High School examination and two posts under the quota for those candidates who had passed the Intermediate examination – Employees ranked from serial nos.1 to 7 i.e. respondent nos.5 to 11 were promoted but the appellants were not promoted – After the year 2015, the Selection Committee was not constituted for granting promotion in respect of the 20% quota as per Rule 5 of the said Rules – At present, 19 posts are vacant – Posts available for the 20% quota are 3.8, which can be rounded off to 4 – Three candidates who hold the qualification of the High School examination and one candidate who holds the qualification of the Intermediate examination can be considered against the said four posts forming part of the 20% quota – The process of promotion has not been conducted from 2015 – In exercise jurisdiction under Article 142 of the Constitution the respondents directed to grant promotion to four candidates (three having the High School examination qualification and one having the qualification of passing the Intermediate examination) who are immediately below the candidates promoted in the process of 2014 in the merit list -Those who are appointed pursuant to this direction shall be treated as promoted on the date on which the order of promotion is issued – They will get seniority on the basis of their actual date of appointment – Made clear that the selected four candidates will not be entitled to any monetary relief except payment of salary and other perquisites as admissible to Group “D” posts from the date on which the appellants or any other candidates, as the case may be, are appointed in terms of this judgment. (Para 6 to 9) Rajendra Prasad & Ors. Vs. State Of Uttar Pradesh & Ors.: 2023 STPL(Web) 231 SC

Karnataka Civil Service Rules, Rule 252(b), Rule 20 Note 4 – Service Law – Lien – Appellant was appointed by the respondent–University as Assistant Registrar and the said fact was duly noted in his service book – His appointment was successfully challenged and resultantly it was quashed by the High Court – Appeals against the said order were dismissed – In view of dismissal of appeals, the respondent-University vide Resolution dated 23.12.2000 resolved to retain the appellant back on his previous post i.e., ‘Office Superintendent’ – Division Bench of the High Court passed an interim order and stayed the operation of the order of learned Single Judge quashing the appointment pending admission of appeal – Subject to pending litigation assailing the appellant’s appointment as Assistant Registrar, he throughout continued to be on the post of Assistant Registrar as probationer and was never confirmed or was permanently absorbed on the said post – Held that if the appellant was never permanently absorbed or confirmed on the post of ‘Assistant Registrar’ – On a conjoint reading of the Rules applicable, i.e., Rule 252(b), Rule 20 Note 4 and Office Memorandum dated 22.01.1972 the lien of the appellant on the previous post of ‘Office Superintendent’ is squarely protected and his lien shall be continued under Rule 20 Note 4 – Order dated 08.04.1993 passed by respondent-University, relieving the appellant to take up the new appointment as ‘Assistant Registrar’ is not to be treated as resignation in terms of Rule 252(b) of KCS Rules – The appellant’s lien on the original/previous post of ‘Office Superintendent’ shall be maintained and deemed to be continued from the date when he was relieved by respondent- University, i.e., 08.04.1993 – Considering the facts and circumstances of the case and in order to do complete justice, the appellant will be entitled to all the service benefits including seniority, consequential promotions and pensionary benefits at par with his juniors, though notionally, since he superannuated on 30.06.2007 and has not worked on the promoted post. (Para 15, 18 to 21) L.R. Patil Vs. Gulbarga University, Gulbarga: 2023 STPL(Web) 236 SC

Punjab Police Rules, 1934, Rule 12.21 – Service Law – Discharge from service – Probationer Constable with police – Under Rule 12.21 of PPRin case a probationary constable is found unlikely to prove an efficient police officer, he may be discharged by the Senior Superintendent of Police at any time within three years from the date of enrolment – Discharge order was passed by the competent authority SSP on the recommendation of the concerned supervisory authority of the Training Centre due to prolonged absence from training without any intimation – The authority found that the probationer constable has no interest in training, and no sense of responsibility, hence, he cannot prove himself a good, efficient police officer – Held that all the three Courts misconstrued Rule 12.21 of PPR and decreed the suit filed by the respondent-plaintiff – Looking to the contents of the order of discharge, there is no foundation of misconduct alleged in the order and it is an order of simpliciter discharge of a probationer constable – View taken by the High Court and also by the two courts below held to be completely erroneous in law and liable to be set-aside – Judgments and decree passed by the High Court and also by the first appellate Court and Civil Judge (Jr. Division) set-aside, and the suit filed by the respondent-plaintiff liable to be dismissed. (Para 18 to 21) State Of Punjab And Others Vs. Jaswant Singh : 2023 STPL(Web) 238 SC

Border Security Force Act, 1968, Section 40, 70, 87, 117 – Border Security Force Rules, 1969, Rule 45, 48, 49(3), 60, 142, 143 – Service Law – Dismissal – Summary Security Force Court – Judicial review – Allegations against respondent ofclicking pictures of the lady doctor, with whom he was posted as a security aid, while she was taking her bath –According to original petitioner, the abstract of evidence was not provided to him and twenty-four hours’ time was not given to him for reflection therefore, there was a clear infraction of the proviso to sub rule (3) of Rule 49 of the BSF Rules, 1969 – Contention that confession, if any, made during the course of preparation of the record of evidence, is liable to be ignored – Held that the trial had to proceed as per Chapter XI of the BSF Rules, 1969 and, therefore, the statement, if any, recorded during investigation or preparation of the record of evidence could have been used as a previous statement of the witness for the purposes of cross-examining the witness as and when the witness was examined before the Security Force Court -Because by virtue of Section 87 of the BSF Act, 1968 the general rules of evidence as laid in the Evidence Act, 1872, subject to the provisions of the BSF Act, 1968, are applicable to all proceedings before a Security Force Court – Therefore, by virtue of Section 145 of the Evidence Act, 1872, a witness may be cross examined as to previous statements made by him.(Para 27,28) Union Of India & Others Vs. Jogeshwar Swain : 2023 STPL(Web) 242 SC

Border Security Force Act, 1968, Section 40, 70, 87,117 – Border Security Force Rules, 1969, Rule 45, 48, 49(3), 60, 142, 143– Service Law – Plea of guilty – Dismissal from service – Summary Security Force Court – Judicial review – Allegations against respondent ofclicking pictures of the lady doctor, with whom he was posted as a security aid, while she was taking her bath –Plea of guilt by original petitioner-respondent – Minutes of the proceedings of the SSFC dated 23.07.2005 do not indicate as to what advise was rendered to the accused with regard to the general effect of the plea of guilty taken by him – The minutes dated 23.07.2005 are nothing but a verbatim reproduction of the statutory rule – There is no indication as to how the accused was explained of the broad consequences of him pleading guilty – Verbatim reproduction of the statutory rule and nothing further is no compliance of the provisions of sub-rule (2) of Rule 142 of the BSF Rules, 1969 – Held that the appellants cannot draw benefit from the minutes of the proceedings as to canvass that the plea of guilty was accepted after due compliance of the requirements of sub-rule (2) of Rule 142 of the BSF Rules, 1969. (Para 36) Union Of India & Others Vs. Jogeshwar Swain : 2023 STPL(Web) 242 SC

Border Security Force Act, 1968, Section 40, 70, 87, 117 – Border Security Force Rules, 1969, Rule 45, 48, 49(3), 60, 142, 143 – Constitution of India, Article 14 and 226 – Service Law – Plea of guilty – Dismissal from service – Summary Security Force Court- Judicial review – Absence of signature of the accused in this case assumes importance because the accused denies taking such a plea and looking at the available evidence, pleading guilty appears to be an unnatural conduct -Case against the petitioner was in respect of clicking photographs of a lady doctor while she was taking her bath – There was no eye-witness of the incident; the camera was recovered from some other person’s house; PW-9, a witness to the keeping of the camera by the accused (i.e., the original petitioner), in her previous statement made no such disclosure; there was no cogent evidence with regard to ownership of that camera – Above all, even the reel was not developed to confirm the allegations – Held that when there was a challenge to the making of such confession before the High Court, a very heavy burden lay on the non-petitioners (appellants herein) to satisfy the conscience of the Court that the plea of guilty was recorded after due compliance of the procedure prescribed by the BSF Rules, 1969 -There was no proper compliance of the procedure prescribed by sub-rule (2) of Rule 142 of the BSF Rules, 1969, absence of signature of the accused in the minutes further dents the credibility of the SSFC proceeding – High Court held justified in looking at the evidence to find out whether punishment solely on the basis of confession (i.e., plea of guilty) was justified and rightly set aside dismissal of original petition-respondent in exercise of powers under Article 226 of the Constitution of India – The High Court was also justified in not re-opening the proceeding from the stage where the error crept in by noticing that it would serve no useful purpose as there was hardly any evidence on record and nearly a decade had passed since the date of the incident. (Para 37 to 40) Union Of India & Others Vs. Jogeshwar Swain : 2023 STPL(Web) 242 SC

Constitution of India, Article 14 – Service Law – Pay Parity – Revision of pay scale – Parity – Case of Shri N. Ramesh in Writ Petition No. 5855 of 2008, decided by the learned Single Judge of Karnataka High Court on 13th February 2009, was similar to the present appellants – The learned Single Judge held that the said Shri N. Ramesh was entitled to the benefit of the revised UGC pay scale from 1st January 1996 based on the order dated 15th November 1999 -Judgment of the Karnataka High Court attained finality as a Writ Appeal preferred against the judgment and the Special Leave Petition have been dismissed – Order dated 19th October 2006 issued by UGC and the Order dated 4th July 2008 issued by the State Government were not pointed out to the learned Single Judge who decided Writ Petition of Shri N. Ramesh on 13th February 2009 – Even in the appeal before the Division Bench and in the Special Leave Petition before this Court, both the orders were not brought to the notice of the Court – The State Government never applied for the review and implemented the order in the case of Shri N. Ramesh – Notwithstanding the Government Order of 4th July 2008, the benefit was granted to the employees who were similarly placed with the appellants even on 7th January 2014 – It was a conscious decision of the State Government to accept the decision of the High Court in the case of Shri N. Ramesh – Held that now, the State Government cannot rely upon the Government Order dated 4th July 2008, which was not pointed out to the Courts which dealt with the case of Shri N. Ramesh as the State Government accepted the judgment in the case of Shri N. Ramesh and granted benefits to him of the Government Order dated 15th November 1999 -Impugned judgment dated 9th October 2017 liable to be quashed and set aside- State Government directed to extend the benefits under the Government Order dated 15th November 1999 to the appellants within a period of three months – Made clear that this judgment will apply to all cases, pending before either the Administrative Tribunal or High Court, of similarly situated employees in which a similar relief is claimed – However, this judgment shall not be used to file new cases by retired employees who have been denied the benefit and who have not challenged the action till date – No case, which has been concluded, shall be reopened on the basis of this judgment. (Para 6 to 12) B.C. Nagaraj & Anr. Vs. State Of Karnataka & Ors.: 2023 STPL(Web) 269 SC

Taxation

Himachal Pradesh Passengers and Goods Taxation Act, 1955, Section 3(1), 2(c), 2(f), 2(g) – Himachal Pradesh Passengers and Goods (Amendment and Validation), Act, 1997 – Constitution of India, Article 246;Entry 56 List II of the Seventh Schedule – Passenger Tax – Free Bus Service to Employees – Validity of Act, 1955 and Act, 1997 – Challenge as to – Gratis transport facilities for their employees and their children by appellant – Charging of passengers tax –Whether, by enacting the Amendment and Validation Act of 1997, the Himachal Pradesh State Legislature had validly removed the basis of the judgment of the Division Bench of the High Court dated 27 March, 1997, whereby the Act of 1955 had been held not to include within its scope the activity of the appellants of providing gratis transport facilities for their employees and their children? – Held that the Act of 1955, as amended by the Amendment and Validation Act of 1997, is valid – The said Act seeks to impose tax on passengers and goods carried by road in motor vehicles and the Himachal Pradesh Legislative Assembly possessed the legislative competence under Article 246, read with Entry 56 of List II of the Seventh Schedule of the Constitution of India, to enact the Act of 1955 and the Amendment and Validation Act of 1997 – By enacting the Amendment and Validation Act of 1997, the Himachal Pradesh State Legislature has validly removed the basis of the judgment of the Division Bench of the High Court dated 27 March, 1997, inter-alia, by amending the definition of the term ‘business’; defining the terms ‘fare’, ‘freight’ and ‘road’; deleting the Explanation to Section 3(1); and inserting Section 3 (1A) which brought non-fare paying passengers at par with fare-paying passengers for the purpose of levying tax under the Act – Thus, the Amendment and Validation Act of 1997 is a valid piece of Legislation -. The activity of the appellant in providing gratis transportation to its employees, and their children, would be a taxable activity under Section 3(1-A) of the Amendment and Validation Act of 1997 – In exercise of our powers under Article 142 of the Constitution, the appellants should be made liable to pay the tax w.e.f. 01.04.2023, the current financial year onwards and not for the period prior thereto. (Para 23 and 26) Nhpc Ltd. Vs. State Of Himachal Pradesh Secretary & Ors.: 2023 STPL(Web) 248 SC

Income Tax Act, 1961, Section 80P, Section 80P (2)(a)(i), 143(3) – Kerala Co-operative Societies Act, 1969, Section 2(g)- Travancore- Cochin Co-operative Societies Act, 1951, Section 10 – Kerala State Co- Operative Agricultural Development Banks Act, 1984, Section 2(a)– Banking Regulation Act, 1949, Section 56(5)(b) – Income Tax – Co-operative societies providing credit facility – Claim of deduction – Profits and gains of business attributable to the business of banking or providing credit facilities to its members of co-operative societies – Whether, the appellant/assessee, a co-operative society, is entitled to claim deduction of the whole of its profits and gains of business attributable to the business of banking or providing credit facilities to its members who are all co-operative societies under Section 80P of the Act, 1961? – Held that although the appellant society is an apex cooperative society within the meaning of the State Act, 1984, it is not a co-operative bank within the meaning of Section 5(b) read with Section 56 of the BR Act, 1949 – Appeals filed by the appellant allowed and the order(s) of the Kerala High Court and other authorities to the contrary are set aside – Appellant held entitled to the benefit of deduction under Section 80P of the Act. (Para 15.14) Kerala State Co-Operative Agricultural And Rural Development Bank Ltd. Vs. Assessing Officer, Trivandrum And Ors.: 2023 STPL(Web) 271 SC

Income Tax Act, 1961, Section 263 – Double Taxation Avoidance Agreement, Article 25(2), 25(4) – Income Tax Law of Oman , Article 8, Article 8(bis) , 26(2) – Income Tax – Double Taxation Avoidance Agreement- Assessment order – Show cause notice – Whether the dividend income earned by the assessee is taxable, although exempted under Omani Tax Laws to entitle the assessee to the benefits of the Double Taxation Avoidance Agreement ( ‘DTAA’) between India and Oman? – Assessee’s establishment in Oman has been treated as Permanent Establishment (PE) from the very inception up to the year 2011 – Held that there is no reason as to why all of a sudden, the assessee’s establishment in Oman would not be treated as PE when for about 10 years it was so treated, and tax exemption was granted basing upon the provisions contained in Article 25 read with Article 8 (bis) of the Omani Tax Laws – Appellant has not been able to demonstrate as to why the provisions contained in Article 25 of DTAA and Article 8 (bis) of the Omani Tax Laws would not be applicable – Held that the appeals have no substance and deserve to be dismissed.(Para 17 to 20) Principal Commissioner Of Income Tax-10 Vs. M/S Krishak Bharti Cooperative Ltd.:2023 STPL(Web) 272 SC

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Breach of peace: It must disturb public order, not just personal peace

May 20, 2024 No Comments

Code of Criminal Procedure, 1973 – Sections 145, 146- Breach of peace – Emergency situation – Possession dispute – Civil litigation – Non-application of mind – Proceeding under Section 145 – Attachment under Section 146 – The application under Section 482 of the Code of Criminal Procedure, 1973 challenges the orders by the Executive Magistrate, concerning a dispute under Section 145 of the Code of Criminal Procedure, 1973 and subsequent attachment under Section 146(1) of the same.

The petitioner contests the legality of both orders, asserting that the initiation of the proceeding and the attachment were illegal and an abuse of process. It’s argued that the jurisdiction under Section 145 can only be invoked if there’s a likelihood of a breach of peace, which wasn’t sufficiently demonstrated in this case.

The petitioner highlights that the attachment order was passed ex-parte without affording them an opportunity to respond, which is contrary to the exceptional circumstances required for such an order. Reference is made to legal precedent discouraging parallel criminal proceedings when a civil litigation is pending regarding property possession, emphasizing the binding nature of civil court decrees.

The respondents counter by claiming entitlement to the land based on a partition deed and subsequent court judgments. They argue that emergency circumstances justified the attachment due to the petitioner’s attempt to construct on disputed land.

Legal precedents are cited to emphasize that the existence of an emergency, not just the use of the term “emergency,” warrants attachment under Section 146.

The judgment critically examines the orders and the circumstances leading to them. It observes discrepancies between the assertions made in the complaint and police report, highlighting the absence of clear grounds for apprehension of breach of peace.The judgment reiterates the requirement for a dispute likely to cause a breach of peace under Section 145, emphasizing that it must disturb public order, not just personal peace.

It concludes that the impugned orders suffer from non-application of mind and jurisdictional error, resulting in injustice to the petitioner. Consequently, both orders are quashed, and the petition is allowed. Important Paragraph Numbers of Judgment: (Para 13, 19, 30, 31)

GAUHATI HIGH COURT

2023 STPL(Web) 183 Gauhati

[2024 STPL 1651 Gauhati]

Md. Osman Ali Saikia And Anr. Vs. Chand Mahamod Saikia And 2 Ors.

Crl.Pet. 239 of 2021-Decided on 8-11-2023

https://stpllaw.in/wp-content/uploads/2024/05/2023-STPLWeb-183-Gauhati.pdf

Electricity: Outstanding arrears from previous owner

May 20, 2024 No Comments

Constitution of India, Article 226 – Assam Electricity Regulatory Commission [Electricity Supply Code and Related Matters] Regulations, 2004 – Electricity Act, 2003 – Section 43, 49, 50, 56 – Electricity – Outstanding arrears from previous owner – The petitioner, a partnership firm, sought a writ petition under Article 226 challenging a decision by the Assam Power Distribution Company Limited (APDCL) to deny a new electricity connection to their premises due to outstanding arrears from previous electricity bills.

The court directed interim relief for immediate electricity connection, subject to 50% payment of outstanding dues, with the remaining 50% to be paid upon dismissal of the writ petition.

The petitioner participated in an auction sale of a property and purchased a portion of land with a Business Centre cum Market Complex. They subsequently applied for a new electricity connection, which was denied by APDCL citing outstanding dues.

The court referred to the Assam Electricity Regulatory Commission [Electricity Supply Code and Related Matters] Regulations, 2004 and the Electricity Act, 2003. It cited a Supreme Court decision (K.C. Ninan vs. Kerala State Electricity Board) regarding the liability of auction purchasers for previous dues in properties sold on ‘as is where is’ basis.

The court dismissed the writ petition, holding the petitioner liable for outstanding electricity dues as per the auction sale agreement. It directed the petitioner to pay the outstanding dues as per the interim order, with APDCL waiving the accrued interest on the principal dues. (Para 15, 16)

GAUHATI HIGH COURT

2023 STPL(Web) 182 Gauhati

[2024 STPL 1650 Gauhati]

M/S Borah And Companyjiban Phukan Nagar Vs. Assam Power Distribution Company Ltd. And 3 Ors.

WP(C) 989 of 2014-Decided on 7-11-2023

2023 STPL(Web) 182 Gauhati

Executive instructions cannot nullify statutory rules

May 16, 2024 No Comments

Assam Bonded Warehouse Rules, 1965 – Rule 7 – Refund of Charges – Administrative Order – Statutory Rules – The present writ petition contested an order issued by the Secretary to the Government of Assam, Excise Department, reintroducing establishment charges under Rule 7 of the Assam Bonded Warehouse Rules, 1965, despite their abolition by the Assam Bonded Warehouse (Amendment) Rules, 2005.

The Court held that executive instructions cannot nullify statutory rules. Citing the principle established in K. Kuppusamy case, it ruled that until a rule is amended, it remains applicable. Consequently, the impugned order was set aside as ultra vires. Regarding refund, relying on Mafatlal Industries Ltd. case, the Court directed the petitioner to present evidence to the Excise Commissioner, who would determine entitlement to refund within four months, considering whether the petitioner passed on the burden of charges to retailers. (Para 15)

GAUHATI HIGH COURT

2023 STPL(Web) 181 Gauhati

[2024 STPL 1649 Gauhati]

M/S Centenary Distilleries P Ltd. Vs. State Of Assam And 2 Ors.

WP(C) 2875 of 2014-Decided on 7-11-2023

https://stpllaw.in/wp-content/uploads/2024/05/2023-STPLWeb-181-Gauhati-2.pdf

Land Disputes: Binding nature of Civil Court’s decree on Revenue Courts

May 16, 2024 No Comments

Land Disputes – Binding nature of Civil Court’s decree on Revenue Courts – The instant writ petition challenged a judgment of the Assam Board of Revenue concerning a land dispute. The dispute pertained to a plot of land associated with the Dargah of Pir Saheb. The Civil Court in Title Suit No.176/1978 had decreed in favor of the Petitioners’ predecessor, declaring their right, title, and possession over the land. The State of Assam was restrained from interference. Subsequently, the Settlement Officer issued a Khatian in favor of the Petitioners’ predecessor, and a new Dag was created. However, the Assam Board of Revenue, in its impugned judgment, disregarded the Civil Court’s decree and cancelled the Khatian issued to the Petitioners’ predecessor.

This action was deemed contrary to established principles, as Civil Court decrees are binding on Revenue Courts. Therefore, the High Court set aside the impugned judgment, restoring the Khatian to the Petitioners’ predecessor. (Para 12)

GAUHATI HIGH COURT

2023 STPL(Web) 180 Gauhati

[2024 STPL 1648 Gauhati]

Sayed Moinuddin Ahmed Vs. State Of Assam And 3 Ors.

WP(C) 4701 of 2013-Decided on 7-11-2023

https://stpllaw.in/wp-content/uploads/2024/05/2023-STPLWeb-180-Gauhati.pdf

Supreme Court Digest, 1 to 15 September 2023

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Supreme Court Digest, 1 to 15 September 2023

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Breach of peace: It must disturb public order, not just personal peace

Electricity: Outstanding arrears from previous owner

Executive instructions cannot nullify statutory rules

Land Disputes: Binding nature of Civil Court’s decree on Revenue Courts

Recent Articles

Contract: Demurrage not allowed

Breach of peace: It must disturb public order, not just personal peace

Electricity: Outstanding arrears from previous owner

Executive instructions cannot nullify statutory rules

Land Disputes: Binding nature of Civil Court’s decree on Revenue Courts