Supreme Court Digest, 16 to 31 August 2023

Supreme Court Digest, 16 to 31 August 2023

Nominal Index

Abhishek Vs. State Of Madhya Pradesh
2023 STPL(Web) 225 SC: Quashing of FIR – Cruelty

Baddar Kumar Mehta (Dead) Thr. Lrs. Vs. State of Punjab And Another
2023 STPL(Web) 182 SC: Land acquisition – Guiding principles for determining the market value of the land

Bachpan Bachao Andolan Vs. Union Of India & Ors.
2023 STPL(Web) 194 SC: POSCO – Role of a ‘support person’ under POSCO Rules, 2020

Besco Limited Vs. State Of Haryana & Others
2023 STPL(Web) 201 SC: Land acquisition – Compensation

Bhagwan Singh Vs. Dilip Kumar @ Deepu @ Depak And Another
2023 STPL(Web) 206 SC: Bail order – Challenge as to

Central Council For Research In Ayurvedic Sciences & Anr. Vs. Bikartan Das & Ors.
2023 STPL(Web) 177 SC: Service Law – Age of superannuation

Central Bureau Of Investigation Vs. Narottam Dhakad & Anr.
2023 STPL(Web) 215 SC: Charge Sheet – Language

Chairman-Cum-Managing Director, Industrial Infrastructure Development Corporation Of Orissa Vs. Late Surgeon Vice Admiral Gp Panda Through His Legal Heirs And Others
2023 STPL(Web) 200 SC: Writ jurisdiction – Disputed questions of facts

Dharmin Bai Kashyap Vs. Babli Sahu & Others
2023 STPL(Web) 178 SC: Election – Recount of vote

Smt. Dulu Deka Vs. State Of Assam & Ors.
2023 STPL(Web) 197 SC: Service Law – Delay and laches

Smt. Dariyao Kanwar & Ors. Vs. M/S United India Insurance Co. Ltd. & Anr.
2023 STPL(Web) 204 SC: Employee  Compensation – Relationship between the death and the work

Experion Developers Private Limited Vs. Himanshu Dewan And Sonali Dewan And Others
2023 STPL(Web) 193 SC: Limitation – Cause of action

J. Baker And Bros. Inc. Vs. Minerals And Metals Trade Corporation Ltd. (Mmtc)
2023 STPL(Web) 195 SC: Arbitration award – Challenge as to

Vasanthi Vs. A. Santha (Dead) Through Lrs. And Others
2023 STPL(Web) 180 SC: Hindu Succession – Coparcery property

Harendra Rai Vs. State Of Bihar & Ors.
2023 STPL(Web) 189 SC: Murder – Member of Parliament convicted

M/S Hindustan Construction Company Limited Vs. M/S National Highways Authority Of India
2023 STPL(Web) 214 SC: Arbitration award – Challenge as to

Industrial Development Bank of India Vs. Superintendent of Central Excise And Customs And Others
2023 STPL(Web) 187 SC: Winding up order – Payment of custom duty

Irfan @ Naka Vs. State Of Uttar Pradesh
2023 STPL(Web) 207 SC: Murder – Dying declaration

Jagpal Singh Vs. State Of U.P. & Ors.
2023 STPL(Web) 220 SC: Service Law – Temporary Post

Kalubhai Khatubhai Etc. Etc.Vs. State of Gujarat & Ors.
2023 STPL(Web) 179 SC: Land acquisition – Market value

Konkan Railway Corporation Limited Vs. Chenab Bridge Project Ndertaking
2023 STPL(Web) 184 SC: Arbitration award – Challenge as to

Kishan Chand Jain Vs. Union Of India & Ors.
2023 STPL(Web) 186 SC: Public Interest Litigation – Right to information

Moorthy Vs. State Of Tamil Nadu
2023 STPL(Web) 191 SC: Murder  – Extra judicial confession

Mukesh Singh Vs. State (Nct Of Delhi)
2023 STPL(Web) 213 SC: Murder – Conviction Upheld

Mina Pun Vs. State Of Uttar Pradesh
2023 STPL(Web) 221 SC: NDPS – Body Search

Shri Nashik Panchavati Panjarpol Trust & Ors. Vs. Chairman & Anr.
2023 STPL(Web) 198 SC: Land acquisition – Market value

Niranjan Das @ Niru Das @ Mahanto Vs. State Of West Bengal
2023 STPL(Web) 224 SC: Practice and Procedure – Non grant of reasonable time to advocate for preparing case

M/S Om Gurusai Construction Company Vs. M/S V.N. Reddy & Ors.
2023 STPL(Web) 202 SC: Tender – Administrative decision

Prakash (Dead) By Lr. Vs. G. Aradhya & Ors.
2023 STPL(Web) 190 SC: Transfer of Property – Mortgage by conditional sale

Dr. Prakasan M.P. And Others Vs. State Of Kerala And Another
2023 STPL(Web) 217 SC: Service Law – Age of retirement

Pesala Nookaraju Vs. Government Of Andhra Pradesh & Ors.
2023 STPL(Web) 192 SC: Preventive detention – Duration of order

Ramathal & Ors. Vs. K. Rajamani (Dead) Through Lrs & Anr.
2023 STPL(Web) 185 SC: Power of Attorney – Plea of non est factum

Riya Bawri Etc. Vs. Mark Alexander Davidson & Ors.
2023 STPL(Web) 203 SC: Quashing of complaint – Complaint revived

Rajo @ Rajwa @ Rajendra Mandal Vs. State Of Bihar & Ors.
2023 STPL(Web) 216 SC: Remission – Premature release

Secundrabad Club Etc. Vs. C.I.T.-V Etc.
2023 STPL(Web) 183 SC: Income tax – Interest income on bank deposit of club

Smt. Shiramabai Vs. Captain, Record Officer For O.I.C. Records, Sena Corps Abhilekh, Gaya, Bihar State And Another
2023 STPL(Web) 188 SC: Service Law – Legitimacy of marriage

M/S S.D. Shinde Tr. Partner Vs. Govt. Of Maharashtra & Ors.
2023 STPL(Web) 196 SC: Arbitration award – Challenge as to

Sarpanch, Gram Panchayat, Longwala Panchayat Samiti, Pilibanga, District Hanumangarh, Rajasthan Vs. Manveer Singh And Others
2023 STPL(Web) 205 SC: Illegal construction of the Gram Panchayat building on school land – Challenge as to

State Of West Bengal & Ors. Vs. Mitul Kumar Jana
2023 STPL(Web) 199 SC: Service Law – Pendency of Criminal Proceedings

State Of U.P & Others Vs. Vinay Kumar Singh
2023 STPL(Web) 209 SC: Mining lease of sand – Refund of royalty amount

State Bank Of India Vs. A.G.D. Reddy
2023 STPL(Web) 211 SC: Service Law – Penalty

State Of Punjab And Anr. Vs. M/S. Shikha Trading Co.
2023 STPL(Web) 222 SC: Quashing of FIR – Illegal sealing of shop

Thangjam Arunkumar Vs. Yumkham Erabot Singh & Ors.
2023 STPL(Web) 208 SC: Election Petition – Rejection of petition

Smt. Ved Kumari (Dead Thr. Her Lr) Dr. Vijay Aggarwal Vs. Municipal Corporation Of Delhi Through Its Commissioner
2023 STPL(Web) 210 SC: Execution of decree – Decree-holder has lost possession to a third party/encroacher

Xxx Vs. Union Territory Of Andaman & Nicobar Islands & Anr.
2023 STPL(Web) 212 SC: Bail – Challenge as to

Y.P. Lele Vs. Maharashtra State Electricity Distribution Company Ltd. & Ors.
2023 STPL(Web) 181 SC: Ex parte decree – Setting aside of

Zunaid Vs State Of U.P. & Ors.
2023 STPL(Web) 223 SC: Final Police Report- Protest Petition

Subject Index

Arbitration

Arbitration and Conciliation Act 1996, Section 5, 34, 37 – Arbirationl award – Challenge as to – Appreciation of evidence by the Arbitral Tribunal as well as the Single Judge of the High Court of the facts and interpretation of the contract held to be reasonable, and comprises a possible view – Conclusion of the Division Bench of the High Court that the Award is liable to be set aside on the ground of perversity is incorrect, as it overlooks the principle laid down in Associate Builders v. Delhi Development Authority case – Division Bench of the High Court committed an error in setting aside the concurrent findings of the Arbitral Tribunal and the Single Judge of the High Court – Award of the Arbitral Tribunal and the decision of the Single Judge of the High Court under Section 34 of the Act cannot be termed as perverse or patently illegal as concluded by the Division Bench of the High Cour -. The decision of the Arbitral Tribunal is a plausible view, and the Single Judge refrained from interfering with it under Section 34 of the Act – Held that the Division Bench should not have interfered with these orders – Judgment of the Division Bench of the High Court liable to be set aside, and the judgment and order of the Single Judge in Arbitration Petition liable to be restored. (Para 22 to 25) Konkan Railway Corporation Limited Vs. Chenab Bridge Project Ndertaking: 2023 STPL(Web) 184 SC

Arbitration and Conciliation Act 1996, Section 34, 37 – Arbitration award – Challenge as to – Interpretation of contracts – Jurisdiction u/s 34 and 37 – Held that the principle of interpretation of contracts adopted by the Division Bench of the High Court that when two constructions are possible, then courts must prefer the one which gives effect and voice to all clauses, does not have absolute application – The said interpretation is subject to the jurisdiction which a court is called upon to exercise – While exercising jurisdiction under Section 37 of the Act, the Court is concerned about the jurisdiction that the Section 34 Court exercised while considering the challenge to the Arbitral Award – The jurisdiction under Section 34 of the Act is exercised only to see if the Arbitral Tribunal’s view is perverse or manifestly arbitrary – Accordingly, the question of reinterpreting the contract on an alternative view does not arise – If this is the principle applicable to exercise of jurisdiction under Section 34 of the Act, a Division Bench exercising jurisdiction under Section 37 of the Act cannot reverse an Award, much less the decision of a Single Judge, on the ground that they have not given effect and voice to all clauses of the contract. (Para 20) Konkan Railway Corporation Limited Vs. Chenab Bridge Project Ndertaking: 2023 STPL(Web) 184 SC

Arbitration and Conciliation Act, 1940 – Contract Act, 1872, Section 73 – Arbitration award – Challenge as to – Agreement to purchase on an annual basis 60,000 metric tons of sulphur (+/- 5% for shipping convenience) between the parties – For the first period Division Bench affirmed the findings in the award, and the judgment of the single judge that the award could not be interfered with – The single Judge held that the quantum of damages and mitigation of losses are questions of fact that should not be interfered with as the court does not exercise appellate jurisdiction over the award – The impugned judgment held that MMTC was precluded from urging this aspect, because this question of proof of damages and mitigation was not argued before the single judge – MMTC did not deny that the plea of mitigation of losses was not raised before the tribunal – Since on this aspect, the conclusions of the courts below have affirmed the award, court finds no good reason to interfere with the findings. (Para 14) H. J. Baker And Bros. Inc. Vs. Minerals And Metals Trade Corporation Ltd. (Mmtc) :2023 STPL(Web) 195 SC

Arbitration and Conciliation Act, 1940 – Contract Act, 1872, Section 73 – Arbitration award – Challenge as to – Agreement to purchase on an annual basis 60,000 metric tons of sulphur (+/- 5% for shipping convenience) between the parties – Damages payable for the breach of contract for the later period – Although MMTC claims that the Union Government had directed canalisation on 29.02.1992, this communication was addressed to Baker on 08.04.1992 – Before the tribunal in the arbitration proceeding, the MMTC made no attempt to produce a copy of the canalisation order – The least expected of the MMTC was to intimate Baker that the alacrity required that at the earliest point in time, i.e. first week of March, 1992 expressing its inability to continue with the arrangement – It did not choose to do so and waited till April to share with Baker, that a de-canalisation order had been issued – Its reason for not lifting the goods was attributed to de-canalisation again on 31.08.1992 when MMTC intimated to Baker that the de-canalisation order had resulted in large sulphur consuming units importing sulphur from Gulf countries where the landing cost was much lower than the landing cost of sulphur from US and other north American based suppliers – Again, nothing had prevented MMTC, at least from the record, and nothing was shown to prevent it from communicating this aspect at the earliest point of time, for Baker to have made alternative arrangements – For these reasons too, the award for the previous period does not call for interference. (Para 15) H. J. Baker And Bros. Inc. Vs. Minerals And Metals Trade Corporation Ltd. (Mmtc) :2023 STPL(Web) 195 SC

Arbitration and Conciliation Act, 1940 – Contract Act, 1872, Section 73 – Arbitration award – Challenge as to – Agreement to purchase on an annual basis 60,000 metric tons of sulphur (+/- 5% for shipping convenience) between the parties – Award for the balance period, July-December 1992 – Damages – Held that there cannot be two opinions about the fact that the measure of damages has to be in accord with the previous underlying Section 73 of the Contract Act, i.e. the market price of goods on the date of the breach, less the contract price – The depositions on behalf of Baker conducted during the arbitration proceeding reveals that then Baker’s Vice President had admitted that several contracts were entered at varying rates, including with Chimiques du Senegal (Senegal) at different rates – Other contracts too were spoken about, all indicating a varying price range depending on the distance to be covered and the quantity in question – It was admitted in the deposition that even the quantity of goods to be lifted in the first period, to MMTC was not readily available in January, but could have been made available only in March 1992 – Given all these circumstances, the least that Baker could have done was to produce evidence that it possessed on record, which is the sale of 50000 MT sodium – The failure to produce the best evidence that Baker possessed in the form of contracts for the balance quantity and the payments received as proof of damage suffered and the shipping arrangements in question as well as the shipments as billed from time to time with full particulars, in the Division Bench’s opinion, disentitled it to any compensation for the later period given that it was made well aware in April 1992 that the arrangement could not be continued by MMTC – The findings of the Division Bench, therefore, are in accord with law. (Para 16 to 19) H. J. Baker And Bros. Inc. Vs. Minerals And Metals Trade Corporation Ltd. (Mmtc) :2023 STPL(Web) 195 SC

Arbitration and Conciliation Act, 1940 – Contract Act, 1872, Section 73 – Arbitration award – Interest pendente lite – Baker had sought interest pendente lite and future interest till payment @ 18% per annum besides any relief – – MMTCs reply did not refute this claim and was entirely silent on this aspect – Furthermore, no argument appears to have been addressed on the question before the tribunal, which granted 12% p.a. – The judgments of this court, notably in Vedanta Ltd. v. Shenzhen Shandong Nuclear Power Construction Co. Ltd [2018 (12) S.C.R 829] have disapproved a uniform award of interest in foreign currency, and recommended that LIBOR rates plus the prevailing rate in percentage points, should be awarded – Held that on the rate of interest, there have been concurrent findings; moreover, the distinction noted by Vedanta Ltd, per se does not constitute ‘patent illegality’, that vitiates the award – For instance, if the parties agree to a particular rate of interest, that would undoubtedly prevail. (Para 21) H. J. Baker And Bros. Inc. Vs. Minerals And Metals Trade Corporation Ltd. (Mmtc) :2023 STPL(Web) 195 SC

Arbitration Act, 1940, Sections 30, 33 – Arbitration award – Challenge as to – Held that the scope of jurisdiction of a court, under Section 30/33 of the Act, never extended beyond discerning if the award disclosed an “error apparent on the face of the award” which is an “error of law apparent on the face of the award and not an error of fact – The error of law can be discovered from the award itself or from a document actually incorporated therein.” – Award did not, facially disclose any error of law; damages were awarded in accordance with principles embodied in law, and the findings were based on the evidence placed before the tribunal – The ruling of the trial courts and the High Court is nothing short of intense appellate review, which is impermissible in law and beyond the courts’ jurisdiction. – Impugned judgment as well as the judgment of the trial court, cannot be sustained and liable to be set aside – The award is restored. (Para 26 and 27) M/S S.D. Shinde Tr. Partner Vs. Govt. Of Maharashtra & Ors.: 2023 STPL(Web) 196 SC

Arbitration Act, 1940, Sections 30, 33– Arbitration – Claim for appointment of arbitrator – Plea that claim time barred – Held that the claim crystallizes upon the issuance of the final bill – which in this case was on 14.12.1992 – The contractor’s complaint with respect to payment was first aired to the EE in 1988; the rejection resulted in an appeal before the SE, who never rendered his opinion or decision – Even in 1993, (after the final bill was drawn), the SE’s decision was not given – In the circumstances, the claim before the civil court for the appointment of the arbitrator: made in January, 1995 was within the period of limitation. (Para 18) M/S S.D. Shinde Tr. Partner Vs. Govt. Of Maharashtra & Ors.: 2023 STPL(Web) 196 SC

Arbitration Act, 1940, Sections 30, 33 – Arbitration –  Question of claims not being within the contracted period – i.e., within the 30-day time granted after foreclosure of the contract – Held that issue does not arise having regard to the facts – On account of the inordinate delay (which occurred in the decision by the authorities, resulting in five extensions of time by mutual consent), the contractor voluntarily sought foreclosure – That request was acceded to by the department – There is no dispute that originally, the period of completion of the contract/works was eighteen months – The request for foreclosure, therefore, was deemed reasonable by the department and accepted upon receipt of the appellant contractor’s letter dated 06.04.1990 – Such being the case, there could have been no objection to delay in submission of the claim for dispute resolution or arbitration – given that the department itself had sat over the request for settlement of disputes for more than 6 years – Moreover, the defect liability period would end only upon both parties expressing satisfaction and recording it in an agreed manner or predetermined manner – Concededly, that event never occurred. (Para 21) M/S S.D. Shinde Tr. Partner Vs. Govt. Of Maharashtra & Ors.: 2023 STPL(Web) 196 SC

Arbitration Act, 1940, Sections 30, 33 – Arbitration award – Interest – Arbitrator consciously eschewed the grant of compensation for loss of profit – The contractors had led evidence disclosing the idle machinery charges during the reduced turnover of work during the original period of contract – The charges claimed were based upon evidence such as the number of workmen employed, the value of equipment, interest on the value and the total number of working days adopting a shortfall factor of 0.7192 – The sum awarded on this head was Rs.15,72,000 – The findings on this aspect are fully supported by evidence – Likewise, the compensation for the extended period of the contract was granted at Rs.91,28,000 – The contractor’s evidence and computations were not disputed by the respondent state –Held that there is nothing wrong as this award was based upon the materials placed by the parties during the arbitration proceeding – The state did not question them apparently during the arbitral proceedings – So far as the balance amount (Rs.1.33 crores is concerned), the tribunal granted interest @ 12 % per annum for the period from when notice or interest was given, i.e., 10.12.1988 till the date of the award – The respondent state was granted a reasonable period of two months for payments – Likewise, in the event of failure, 12% future interest was awarded – Given the prevailing interest rates at that time when the contract was in force, the court finds the award of such rate of interest neither implausible nor illegal. (Para 24) M/S S.D. Shinde Tr. Partner Vs. Govt. Of Maharashtra & Ors.: 2023 STPL(Web) 196 SC

Arbitration and Conciliation Act, 1996, Section 34/37 – Arbitration award – Challenge as to – In most cases, the view of DRPs and tribunals, and in two cases, majority awards of tribunals, favoured the arguments of contractors, that composite embankment construction took place, as a result of which measurement was to be done in a composite, or unified manner – Dissenting or minority views, wherever expressed, were premised on separate measurements – This opinion was of technical experts constituted as arbitrators, who were versed in contractual interpretation of the type of work involved; they also had first-hand experience as engineers who supervised such contracts- The prevailing view about the standard of scrutiny- not judicial review, of an award, by persons of the disputants’ choice being that of their decisions to stand- and not interfered with, save a small area where it is established that such a view is premised on patent illegality or their interpretation of the facts or terms is perverse, as to qualify for interference, courts have to necessarily chose the path of least interference, except when absolutely necessary – By training, inclination and experience, judges tend to adopt a corrective lens; usually, commended for appellate review -However, that lens is unavailable when exercising jurisdiction under Section 34 of the Act. Courts cannot, through process of primary contract inter pretation, thus, create pathways to the kind of review which is forbidden under Section 34 – So viewed, the Division Bench’s approach, of appellate review, twice removed, so to say [under Section 37], and conclusions drawn by it, resulted in displacing the majority view of the tribunal, and in many cases, the unanimous view, of other tribunals, and substitution of another view–Held that as long as the view adopted by the majority was plausible- and find no reason to hold otherwise (because concededly the work was completed and the finished embankment was made of composite, compacted matter, comprising both soil and fly ash), such a substitution was impermissible –A dissenting opinion cannot be treated as an award if the majority award is set aside – It might provide useful clues in case there is a procedural issue which becomes critical during the challenge hearings -All judgments of the High Court, which were the subject matter of challenge in those appeals liable to be set aside – The awards, which were the subject matter of challenge, and to the extent they were set aside upheld and restored – The direction in the awards, to the extent they required compounded monthly interest payments, are modified – Instead, the NHAI shall pay uniform interest on the amounts due, on the head concerned, i.e., construction of embankment, to the extent of 12% from the date of award to the date of payment, within eight weeks. (Para 20 to 22, 27 and 28) M/S Hindustan Construction Company Limited Vs. M/S National Highways Authority Of India :2023 STPL(Web) 214 SC

Civil

Civil Procedure Code, 1908, Order 9 Rule 13; Order 17 Rule 2 – Ex parte decree – Setting aside of – Under Order 17 Rule 2, the Court would proceed to pass orders with respect to any of the parties being absent or both the parties being absent – Whereas the explanation is confined to record the presence of that party and that party alone, which has led evidence or substantial evidence and has thereafter failed to appear – In the present case, admittedly the suit was at the stage of plaintiff’s evidence – The evidence of the defendants had not even started and the defendants’ counsel had not even cross-examined the plaintiff’s evidence – Held that the explanation in the present case could have been invoked only if the plaintiff, after adducing his evidence or substantial evidence, failed to appear, the Court could have recorded his presence while disposing of the suit – But once the defendant had not led any evidence at all, the explanation could not be invoked as against the defendant/appellant – High Court committed an error in applying the explanation to Order 17 Rule 2 CPC and based upon it holding that an application under Order 9 Rule 13 CPC would not be maintainable as the presence of the defendant would be deemed to be recorded at the time of disposal of the suit. (Para 19 and 20) Y.P. Lele Vs. Maharashtra State Electricity Distribution Company Ltd. & Ors. : 2023 STPL(Web) 181 SC

Civil Procedure Code, 1908, Order 9 Rule 13 – Ex parte decree – Withdrawal of vakalatnama by Advocated – Held that once the counsel had withdrawn his Vakalatnama, in normal course, the Trial Court ought to have issued notice to the defendants to engage another counsel, which it did not do and proceeded ex parte – Held that the Trial Court committed an error in doing so – Further, the Trial Court, in its wisdom and discretion having allowed the application under Order 9 Rule 13 CPC, the High Court ought to have refrained itself from interfering with an order which advanced the cause of justice by affording opportunities to both the parties so that the suit could be decided on merits – Impugned order of the High Court liable to be set aside – Trial Court will proceed to decide the Special Civil Suit on its own merits, after giving due opportunities to the parties and strictly proceed in accordance with law.  (Para 21 and 22) Y.P. Lele Vs. Maharashtra State Electricity Distribution Company Ltd. & Ors. : 2023 STPL(Web) 181 SC

Civil Procedure Code, 19708, Section 100 – Power of Attorney – Plea of non est factum – Finding of fact – Plaintiffs claimed to be the absolute owners thereby denying not only the correctness of the Power of Attorney but also subsequent execution of the sale deed by the Attorney (defendant No.2) in favour of his own father and brother on the date of the registration of the deed of Attorney – Held that would cover the issue of non est factum as an integral part of it – Once the First Appellate Court, after appreciating and analysing the evidence on record came to the conclusion that the plea of non est factum was proved, the said finding, being a finding of fact, ought not to have been interfered by the High Court in Second Appeal – The Power of Attorney, having been found to be invalid, any further action taken pursuant to it, cannot also be held to be valid – High Court, while exercising its power under Section 100 of the Code, 1908, exceeded its jurisdiction in disturbing the pure findings of fact and that too on incorrect appreciation and reading of the pleadings – Non-framing of an issue, which is otherwise covered in a broader issue and for which there was sufficient pleading and evidence, the suit could not have been dismissed on that ground – Impugned judgment of the High Court liable to be set aside and that of the First Appellate Court is maintained – The suit of the appellants stands decreed. (Para 26, 30 to 32) Ramathal & Ors. Vs. K. Rajamani (Dead) Through Lrs & Anr. :2023 STPL(Web) 185 SC

Legal maxim – Non est factum – A plea of non est factum can be taken by an executor or signatory of the deed to plead that the said document is invalid as its executor/signatory was mistaken about its character at the time of executing/signing it – It is a Latin maxim which literally means “it is not the deed” – A plea of non est factum is a defence available in Contract Law allowing a person to escape the effect of a document which she/he may have executed/signed. (Para 17) Ramathal & Ors. Vs. K. Rajamani (Dead) Through Lrs & Anr. :2023 STPL(Web) 185 SC

Legal maxim – Non est factum – Ingredients of the plea of non est factum as laid down in the case of Bismillah (supra) enumerated. (Para 19) Ramathal & Ors. Vs. K. Rajamani (Dead) Through Lrs & Anr. :2023 STPL(Web) 185 SC

Constitution of India, Article 32 – Right to Information Act, 2005, Section 4, 25(5) – Public Interest Litigation – Right to information – Obligations of public authorities – Direction sought to implement the mandate of Section 4 of the Act, 2005 –Held that the purpose and object of the statute will be accomplished only if the principle of accountability governs the relationship between ‘right holders’ and ‘duty bearers’ – The Central and State Information Commissions have a prominent place, having a statutory recognition under Chapters III and IV of the Act and their powers and functions all enumerated in detail in Section 18 of the Act – Special power of ‘Monitoring and Reporting’ conferred on the Central and State Information Commissioners which must be exercised keeping in mind the purpose and object of the Act, i.e., ‘to promote transparency and accountability in working of every public authority’ – Central Information Commission and the State Information Commissions directed to continuously monitor the implementation of the mandate of Section 4 of the Act as also prescribed by the Department of Personnel and Training in its Guidelines and Memorandums issued from time to time – The directions will also include instructions under O.M. dated 07.11.2019 issued by the Department – For this purpose, the Commissioners will also be entitled to issue recommendations under sub-Section (5) of Section 25 to public authorities for taking necessary steps for complying with the provisions of the Act – Writ Petition disposed of with the direction to the Central Information Commission and the State Information Commissions to ensure proper implementation of the mandate of Section 4 of the Act, by following the directions as indicated above. (Para 25 to 27) Kishan Chand Jain Vs. Union Of India & Ors. :2023 STPL(Web) 186 SC

Transfer of Property Act, 1882, Section 58(c) – Transfer of Property – Mortgage by conditional sale – Redemption of mortgage – Undisputed case in hand is that it was not a single document – Admittedly, there are two separate documents -Specific term used in the document is “reconveyance agreement” executed by ‘R’ in favour of ‘G’ – It is clearly mentioned therein that the property in question had already been sold and registered in the name of‘R’ – On a request made by ‘G’, the right to purchase the property was given within a period of five years on payment of sale consideration of Rs. 5,000/- -The agreement states that it shall cease to have effect on expiry of a period of five years. – Contents of the Sale Deed shows that it is clearly mentioned therein that the same was an absolute sale for a total sale consideration of Rs. 5,000/- required by the vendor to meet domestic expenses and to meet education expenses of his minor son and to discharge some debts – Total sale consideration was Rs. 5,000/- – Out of this amount, a sum of Rs. 3,000/-was received earlier and Rs. 2,000/- was to be received in the presence of the Sub-Registrarat the time of the registration of the Sale Deed – Possession of the property was to be delivered on registration of the Sale Deed – The vendee was entitled to get the mutation entered in her name and enjoy the property by paying the taxes, if any – She would become an absolute owner thereof from generation to generation – There were no encumbrances attached to the property – The agreement of buy back dated 24.12.1973 mentioned, that after registration of the Sale Deed, the vendor had requested the vendee to resell the property within the time given – The vendee granted him five years’ time to repurchase the property in case sale consideration of Rs. 5000/- is paid – It was agreed that the agreement shall cease immediately after expiry of 5 years – It further mentions that at the time of repurchase, registration expenses are to be borne by the father of the appellant, who had to get the Sale Deed registered back – In terms of the Sale Deed and the Re-conveyance Deed, reconsidered in the light of the enunciation of law, the same cannot be held to be a transaction of mortgage of property – Sale of property initially, was absolute – By way of execution of Re-conveyance Deed, namely, on the same day, the only right given to the appellants was to repurchase the property – Do not find any error inthe judgment and order of the High Court -Appeal liable to be dismissed. (Para 24, 29 to 32) Prakash (Dead) By Lr. Vs. G. Aradhya & Ors. :2023 STPL(Web) 190 SC

Constitution of India, Article 226 – Writ jurisdiction – Disputed questions of facts – Power of re-entry – The total extent of land in Plot No. 1288 is 52 acres, 470 decimals. On 07.05.1981, IDCO was assigned, in Plot Number 1288, agricultural land admeasuring acres 4.800 decimals. By issuing the Resumption Notice, the Tahsildar admitted Writ Petitioner’s possession of the petition land – Even before initiating proceedings for recovery, the possession of allotted land of an extent of acres 42.870 decimals is stated to have been given to IDCO by the State – It is also not clear whether the assignment in any manner overlaps with the petition land assigned to Vice Admiral Ganesh Prasad Panda – The State assumed the power of re-entry of the land settled on a higher pedestal and that the resumption of land in favour of the State as automatic – If we assume that the land alienated to IDCO is different or distinct, then, interference with possession of petition land is arbitrary and illegal – Secondly, if the extent viz. petition land and land settled in favour of IDCO, then, without dispossessing the petitioner(s), in the manner known to law, the settlement in favour of IDCO, by including petition land, is illegal and unconstitutional – The re-entry without reference to the law, in the facts and circumstances of this case, has been rightly held in favour of the Writ Petitioners . (Para 12.1 and 12.2) Chairman-Cum-Managing Director, Industrial Infrastructure Development Corporation Of Orissa Vs. Late Surgeon Vice Admiral Gp Panda Through His Legal Heirs And Others: 2023 STPL(Web) 200 SC

Constitution of India, Article 226 – Writ jurisdiction – Disputed questions of facts – Power of re-entry – The serious objection of the State against impugned Judgment is that the High Court has decided disputed questions of facts – Held that after perusing the Judgment, we consider that the High Court recorded a finding not by deciding a fact in issue on title, identity, or entitlement but from the record and admitted documents – The solitary ground raised against the impugned Judgment, therefore, deserves to be rejected – Method adopted by the respondent-State for dispossessing or attempting to dispossess the first petitioner is unconstitutional and illegal – The State ought not to approbate and reprobate on the possession of Vice Admiral Ganesh Prasad Panda of petition land. (Para 12.3) Chairman-Cum-Managing Director, Industrial Infrastructure Development Corporation Of Orissa Vs. Late Surgeon Vice Admiral Gp Panda Through His Legal Heirs And Others: 2023 STPL(Web) 200 SC

Constitution of India, Article 14 and 226 – Tender – Administrative decision – Judicial review – Legal maxim – Lexnon cogit ad impossibilia – Whether the High Court was justified in setting aside the work order on the ground that the tendering authority had breached Clause 2.22.0 (ix) by accepting the additional performance security on 17.03.2021? – The complaint was about the appellant submitting the additional performance security beyond the two days stipulated as per Clause 2.22.0 (ix) – On 19.04.2021, the Executive Engineer, in his letter tothe Superintending Engineer, mentioned that 13.03.2021 was a Saturday and 14.03.2021 was a Sunday and also confirmed that on 15.03.2021 since all the nationalized banks were non-operational due to strike, the appellant had made a request to him to extend the time till 17.03.2021 – He further stated that since 15.03.2021 and 16.03.2021 were the days when banks were non-operational due to strike, and since the appellant deposited the additional performance security on 17.03.2021,the deposit seems to be proper and a request was made to accept the tender of the appellant – Not only this, the Branch Manager of the Appellant’s Bank, in his letter of 11.05.2021also does not deny that there was a strike of bank employee son 15.03.2021 and 16.03.2021 – Held that this is a case where the appellant has complied with the condition of furnishing the additional performance security at the earliest possible time, that it could possibly comply – That no one can be compelled to perform an impossible task – Lexnon cogit ad impossibilia – is a well-accepted legal principle – Deposit of the additional performance security on17.03.2021 was held to be in due compliance of Clause 2.22.0 (ix) of the tender conditions – There was no breach of that clause – No mala fide has been alleged and the interpretation as adopted by the tendering authority cannot be said to be perverse -Also do not find that the decision to accept the additional performance security on 17.03.2021 and the issuance of the work order was arbitrary and irrational -Also do not find it to be a decision, which no responsible authority acting reasonably and in accordance with law could have reached – On facts, no case of prejudice to public interest by the award of the work has also been made out – High Court ought not to have interfered with the acceptance of the tender and the issuance of the work order in the present case – Impugned order liable to be set aside and that Writ Petition on the file of the High Court shall stand dismissed. (Para 18, 19, 23, 26 and 34) M/S Om Gurusai Construction Company Vs. M/S V.N. Reddy & Ors. :2023 STPL(Web) 202 SC

Constitution of India, Article 226 – Illegal construction of the Gram Panchayat building on school land – Challenge as to – Held that constructing a building in a playground, particularly on a plot of land standing in the name of the Education Department and without administrative sanction, is of grave concern and illegal – Gram Panchayat should represent the public interest and not occupy vacant places, parks, and grounds for its infrastructure projects – In a given case, if absolute necessity is made out for a change of user of any of the amenities/ open spaces, Gram Panchayat shall and should comply with the requirements of the law – The failure of duty and fixing of responsibility are matters of inquiry – A Playground is earmarked for school children, demolition of a building constructed is avoidable – The directions issued in Para VI of the Judgment under appeal are substituted by the following direction, (i) The Secretary, Panchayati Raj Department shall initiate disciplinary proceedings against respondent No. 2 Vikas Adhikari and respondent No. 4 Sarpanch and ensure completion of enquiry without further loss of time – (ii) The State of Rajasthan/ Respondent No. 4 is directed to deposit Rs. 10,00,000/-, to the credit of the school, within four weeks from receipt of the Order – The school shall utilize the amount so deposited for upgrading facilities in the school. (iii) The Competent Authority shall conclude the enquiry directed against the Appellant and Vikas Adhikari Respondent No. 2 within four months from today. (iv) The State Government/ Respondent No. 4 directed to recover Rs. 10,00,000/- deposited in terms of direction No. (ii), from persons found guilty of arbitrary exercise of power and in such proportion within six months from today. (v) The District Administration ensures that the playground now earmarked shall continue to serve the purpose of the playground. (vi) The Impugned Judgment modified to the limited extent indicated above, and accordingly, the Civil Appeal is allowed in part. (Para 8) Sarpanch, Gram Panchayat, Longwala Panchayat Samiti, Pilibanga, District Hanumangarh, Rajasthan Vs. Manveer Singh And Others: 2023 STPL(Web) 205 SC

Civil Procedure Code, 1908, Order 7 Rule 11 – Representation of People Act,1951, Sections 80, 80A, 81, 83(1)(c), 84 read with Sections 100(1)(d)(iv) and 101 – Election Petition – Rejection of petition – Prayer for –Ground that it lacks material particulars and is in violation of mandatory requirements of law – Whether the election petition is liable to be dismissed by allowing the Order 7 Rule 11application for non-compliance of Section 83(1)(c) of the Act–Held that the requirement to file an affidavit under the proviso to Section 83(1)(c) is not mandatory – It is sufficient if there is substantial compliance. As the defect is curable, an opportunity may be granted to file the necessary affidavit – Election petition contained an affidavit and also a verification – In this very affidavit, the election petitioner has sworn on oath that the paragraphs where he has raised allegations of corrupt practice are true to the best of his knowledge – Though there is no separate and an independent affidavit with respect to the allegations of corrupt practice, there is substantial compliance of the requirements under Section 83(1)(c) of the Act – Held that agree with the conclusion of the High Court that there is substantial compliance of the requirements under Section 83(1)(c) of the Act and this finding satisfies the test laid down by this Court in Siddeshwar case – Even the subsequent decision of this Court in Revanna case supports the final conclusion arrived at by the High Court -Appellant has not made out a case for interfering with the judgment of the High Court – Appeal liable to be dismissed.(Para 14 to 17) Thangjam Arunkumar Vs. Yumkham Erabot Singh & Ors. :2023 STPL(Web) 208 SC

Constitution of India, Articles 136,226 – Mining lease of sand – Refund of royalty amount – Challenge as to – Held that prima-facie, it appears that the State of U.P. was justified in taking a stand in the review petition that the High Court had wrongly observed that the State of U.P. (i.e., respondents in the writ petition) had failed to handover possession of the area allotted to the petitioner for carrying out mining operations – However, while deciding the review petition, this aspect of the matter has not been dealt with by the High Court – Further, the High Court failed to address the ground no.8 in the review petition wherein it was stated that in the advertisement dated 16.02.2018 the bidder was advised to inspect and satisfy it self regarding the mining area before participating in the bidding process – As to what would be the effect of that clause on the relief claimed by the original petitioner is a matter which requires consideration – There appears no discussion in that regard in the orders impugned – That apart, there is no determination of the area, if any, which falls in the disputed territory i.e., within the State of M.P – There is also no discussion on the plea of the appellants that the amount of which refund was sought was far in excess of the amount paid by the original petitioner- Impugned orders dated 30.09.2022 and 12.05.2023 passed by High Court liable to be set aside – Writ C No.37749 of 2019 is restored to the file for fresh adjudication. (Para 20 to 22) State Of U.P & Others Vs. Vinay Kumar Singh :2023 STPL(Web) 209 SC

Civil Procedure Code, 1908, Order 21 Rules 97 to 101 – Execution of decree – Decree-holder has lost possession to a third party/encroacher – Trial Court categorically held that the respondent -Corporation is the lessee and since the lease has already been determined upon expiry of lease period of 10 years, the respondent-Corporation/defendant is bound to deliver physical vacant possession of the suit land and also to pay the rent and that the appellant/plaintiff is entitled to a decree of ejectment and delivery of vacant possession by the respondent-Corporation/defendant in respect of the suit land – Finding by High Court affirming the order of the Executing Court dated11.09.2012 holding that the decree for possession of immoveable property is not executable against the judgment-debtor – Held that it was the duty of the Executing Court to issue warrant of possession for effecting physical delivery of the suit land to the decree-holder in terms of suit schedule property and if any resistance is offered by any stranger to the decree, the same be adjudicated upon in accordance with Rules 97 to 101 of Order 21 CPC -The Executing Court could not have dismissed the execution petition by treating the decree to be in executable merely on the basis that the decree-holder has lost possession to a third party/encroacher – If this is allowed to happen, every judgment-debtor who is in possession of the immoveable property till the decree is passed, shall hand over possession to a third party to defeat the decree-holder’s right and entitlement to enjoy the fruits of litigation and this may continue indefinitely and no decree for immovable property can be executed – Judgment and orders dated 07.04.2016 and04.11.2016 passed in C.R.P No. 152 of 2012 and R.P No. 487of 2016 respectively by the High Court of Delhi and the order of the Executing Court dated 11.09.2012 liable to be aside and the Executing Court directed to execute the decree by effecting delivery of physical vacant possession to the appellant/decree-holder in accordance with the provisions contained in Order 21 CPC. (Para 15 and 16) Smt. Ved Kumari (Dead Thr. Her Lr) Dr. Vijay Aggarwal Vs. Municipal Corporation Of Delhi Through Its Commissioner: 2023 STPL(Web) 210 SC

Criminal

Penal Code, 1860, Section 37. 302 –Criminal Procedure Code, 1973, Section 311 – Murder – Member of Parliament convicted – Appeal against acquittal – Appreciation of evidence -Dying declaration – Summoning of witnesses –Trial Court as well as the High Court failed to exercise their powers under the provisions to summon the witnesses of the charge-sheet to prove the police papers -Despite applications being filed to summon persons who were not shown as witnesses to the charge-sheet, the Trial Court repeatedly rejected the said applications in 2006 and again in 2008 on the flimsy grounds that were not named in the charge-sheet or that the Public Prosecutor had not filed such application in gross violation of Section 311CrPC. – Held that Fard Bayan of ‘R’, which was later converted into an FIR, is admissible in evidence and is to be read as a dying declaration or his last statement – The tainted investigation shows the high handedness of the accused-Respondent no.2,who was a powerful person, being a sitting M.P. of the Ruling Party – The prosecution had established, even through the hostile witnesses, that the date, time, and place of incidence as given in the Fard Bayan of ‘R’ were fully established – The post-mortem reports, show that the death of ‘R’ and ‘D’ was homicidal in nature – The medico legal reports supported the prosecution’s story to the extent that the injuries were caused by a fire arm, which proved fatal for two out of the three injured – Adverse inference against the accused is drawn in view of their subsequent conduct – Judicial notice is taken of the judgment in the Habeas Corpus petition dated 13.07.2007regarding the conduct of the accused, the investigating agency, the Public Prosecutor and the Presiding Officer conducting the trial – The two administrative reports of the respective judges, who were constitutional functionaries, also have to be given due credence and cannot be ignored outright regarding the conduct of the accused, public prosecutor and the Presiding Officer conducting the Trial – The statement of CW-1 is found to be reliable, and the Courts below wrongly discarded it on the ground that it was hearsay and tutored – The dying declaration and the statement ofCW-1 fully establish that it was ‘P’, who had caused the injuries from his firearm weapon, which proved to be fatal for two out of the three injured and also caused injury to the third surviving injured, namely Smt. ‘D’ – ‘P’ (accused no.1) is thus liable to be convicted under Sections 302 and307 IPC for committing culpable homicide amounting to murder and attempt to murder – The rest of the accused, although named in the chargesheet after due investigation, since their names were not reflected either in the Fard Bayan of the deceased ‘R’(dying declaration) or in the statement of CW-1, therefore, their acquittal is not disturbed – Accused-respondent no.2 is thus convicted under Sections 302 and 307 IPC for themurders of ‘D’ and ‘R’ and also for attempt to murder of injured Smt.‘D’. (Para 113, 114) Harendra Rai Vs. State Of Bihar & Ors. :2023 STPL(Web) 189 SC

Penal Code, 1860, Section 302/201 – Murder  – Extra judicial confession – PW1and the appellant were not known to each other till 10th of August 2006 – Normally an accused will confide only with a person in whom he has implicit faith -He would not go to a stranger to make a confession of guilt – The fact that the alleged confession was made by him more than two months after the incident makes it more suspicious – Extra judicial confession is always a weak piece of evidence There is serious doubt about the genuineness of the prosecution case regarding the extrajudicial confession and it does not deserve acceptance – Dead body was recovered from a place which was accessible to all – A day prior to the alleged discovery at the instance of the appellant, PW nos.1 and 2 had gone to the place where the dead body was found – It is not the case of the prosecution that the place where the dead body was buried was accessible and known only to the appellant – There is serious doubt about the genuineness of the prosecution case regarding the recovery of a dead body at the instance of the appellant and the recovery of the alleged instrument of the offence at the instance of the appellant – Held that it is not possible to accept the case of the prosecution which is entirely based on the extrajudicial confession made by the appellant – There was no legal evidence on record to convict the appellant -Guilt of the appellant has not been proved beyond a reasonable doubt – Judgment and order passed by the Court of Additional District and Sessions Judge as well as the impugned judgment and order passed by the High Court liable to be set aside and the appellant is acquitted of the offences alleged against him.(Para 7 to 17) Moorthy Vs. State Of Tamil Nadu: 2023 STPL(Web) 191 SC

Andhra Pradesh Prevention of Dangerous Activities of Boot-leggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986, Section 3(2) –Constitution of India, Article 22(4) – Preventive detention – Duration of order – Challenge as to – Submission canvassed on behalf of the appellant detenu is that the detention order passed for 12 months at a stretch could be termed as without jurisdiction and contrary to the mandate of sub-section (2) of Section 3 of the Act 1986 – Held that the period of three months specified in Article 22(4)(a) of Constitution of India is relatable to the period of detention prior to the report of the Advisory Board and not to the period of detention subsequent thereto – Further, the period of detention in terms of Article 22(4)(a) cannot be in force for a period beyond three months, if by then, the Advisory Board has not given its opinion holding that there is sufficient cause for such detention – Under Article 22(4)(a), the Advisory Board would have to give its opinion within a period of three months from the date of detention and depending upon the opinion expressed by the Advisory Board, the State Government can under Section 12 of the Act, either confirm the order of detention or continue the detention of the person concerned for a maximum period of twelve months as specified in Section 13 of the Act or release the detenu forthwith, as the case may be – If the order of detention is confirmed, then the period of detention can be extended up to the maximum period of twelve months from the date of detention – It is not necessary that before the expiration of three months, it is necessary for the State Government to review the order of detention as has been expressed by this Court in Cherukuri Mani (supra) – The Act does not contemplate a review of the detention order once the Advisory Board has opined that there is sufficient cause for detention of the person concerned and on that basis, a confirmatory order is passed by the State Government to detain a person for the maximum period of twelve months from the date of detention – On the other hand, when under Section 3(2) of the Act, the State Government delegates its power to the District Magistrate or a Commissioner of Police to exercise its power and pass an order of detention, the delegation in the first instance cannot exceed three months and the extension of the period of delegation cannot also be for a period exceeding three months at any one time – Submission canvassed on behalf of the appellant answered accordingly. (Para 43 to 45) Pesala Nookaraju Vs. Government Of Andhra Pradesh & Ors. : 2023 STPL(Web) 192 SC

Andhra Pradesh Prevention of Dangerous Activities of Boot-leggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986, Section 3(2) – Andhra Pradesh Prohibition Act, 1995, Section 7B and Section 8B (as amended by Act No. 18 of 2020) – Preventive Detention – Challenge as to – Submission of behalf of the appellant detenu that the registration of four First Information Reports (FIRs) under the Act, 1995 , by itself, is not sufficient to arrive at a subjective satisfaction that the activities of the appellant detenu as a boot-legger is prejudicial to the maintenance of public order – With all the four FIRs the appellant detenu was arrested and released on bail – The detaining authority took notice of the of reports of the chemical analyzer – The samples which were drawn and collected from the liquor seized from the possession of the appellant detenu were sent to the forensic science laboratory for the purpose of chemical analysis and in all the four cases, the analysis report states that the samples were found to be unfit for human consumption and injurious to health – Detaining authority has specifically stated in the grounds of detention that selling liquor by the appellant detenu and the consumption by the people of that locality was harmful to their health – Such statement is an expression of his subjective satisfaction that the activities of the detenu appellant is prejudicial to the maintenance of public order – Not only that, the detaining authority has also recorded his satisfaction that it is necessary to prevent the detenu appellant from indulging further in such activities and this satisfaction has been drawn on the basis of the credible material on record – It is also well settled that whether the material was sufficient or not is not for the Courts to decide by applying the objective basis as it is matter of subjective satisfaction of the detaining authority – Held that find no error, much less an error of law, in the impugned judgement of the High Court – Appeal liable to be dismissed. (Para 46, 52, 71 and 72) Pesala Nookaraju Vs. Government Of Andhra Pradesh & Ors. : 2023 STPL(Web) 192 SC

Andhra Pradesh Prevention of Dangerous Activities of Boot-leggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986, Section 3(2) – Andhra Pradesh Prohibition Act, 1995, Section 7B and Section 8B (as amended by Act No. 18 of 2020) – Preventive Detention – Expression “public order” and “law and order” – Held that there is a very thin line between the question of law and order situation and a public order situation, and some times, the acts of a person relating to law and order situation can turn into a question of public order situation – What is decisive for determining the connection of ground of detention with the maintenance of public order, the object of detention, is not an intrinsic quality of the act but rather its latent potentiality – Therefore, for determining whether the ground of detention is relevant for the purposes of public order or not, merely an objective test based on the intrinsic quality of an act would not be a safe guide – The potentiality of the act has to be examined in the light of the surrounding circumstances, posterior and anterior for the offences under the Prohibition Act. (Para 64) Pesala Nookaraju Vs. Government Of Andhra Pradesh & Ors. : 2023 STPL(Web) 192 SC

Protection of Children from Sexual Offences Act, 2012, Section 19(6), 39 – Protection of Children from Sexual Offences Rules, 2020, Section 2(1)(f), 4(7), 4(14) ; Form ‘A’, 12(1)(c)- Juvenile Justice (Care and Protection of Children) Act, 2015, Section 3 – POSCO – Role of a ‘support person’ under POSCO Rules, 2020 – In view of what is required under the POCSO Rules, directions issued – In furtherance of the mandate of Section 39 of the POCSO Act, the Principal Secretary to the Department of Women and Child Welfare, in the State of Uttar Pradesh shall convene a meeting within the next six weeks to review the facts, take action, and frame rules/guidelines as necessary on provisions of Rules, 2020 as stated in this judgment – State of Uttar Pradesh directed to file a report of compliance of these directions on or before 04.10.2023 – Ministry of Women and Child Development, Government of India, requested to bring this judgment to the notice of the NCPCR, which in turn is directed to file – in furtherance of its obligation under Rule 12(1)(c) – a consolidated status report outlining the progress of all States in framing of guidelines as prescribed under Section 39 of the POCSO Act, by 04.10.2023 – Union of India and the NCPCR shall also file an affidavit in this regard before 4.10.2023 – A copy of this order shall be marked directly by the Registry to the Union Secretary, Department of Women and Child Development and Chairperson NCPCR, for necessary action. (Para 11 to 13) Bachpan Bachao Andolan Vs. Union Of India & Ors.: 2023 STPL(Web) 194 SC

Criminal Procedure Code, 1973, Section 439 – Bail order – Challenge as to – Offence under Section 376D, 384, 506 IPC, Section 326 of POCSO Act and Section 3(2)(v) of The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short SC/ST Act) and Section 66 of the Information Technology Act, 2000. – High Court seems to have been primarily swayed by the fact that there has been delay in filing the complaint i.e. 13 months for granting bail in favour of accused persons viz, respondents in respective appeals – The allegation made in the complaint relates to gang rape of a minor girl who is aged 15 years six months, studying in Class X – The fact of her father being a police constable who is far below in the hierarchy of service cannot be lost sight of – One of the respondents ‘D’ against whom allegations have been made is the son of a sitting Member of Legislative Assembly – MLA – Yet another accused – ‘V’ seems to have criminal antecedents and the third accused is the Manager of the Hotel where the alleged incident of gang rape had occurred – On investigation, the charge-sheet came to be filed against two accused only, namely, ‘V’ and ‘N’, though in the complaint a specific allegation of rape has been made against ‘D’ he was dropped -At the instance of the complainant, the jurisdictional court took cognizance of the offence against ‘D’ vide order dated 09.06.2022, order of taking cognizance by the jurisdictional Sessions Court against Deepak has attained finality after his challenge to the order was withdrawn in Apex Court – The complainant’s grievance, through-out has been that ‘D’ had been threatening the prosecutrix and other witnesses and that there is every possibility of threat to their life in the event they depose to the truth, and such apprehension is justifiable, especially because accused is in a domineering position – The complainant underlines the influence and possibility of the clout being wielded on the witnesses which cannot be discounted – The fact that even after recording of the deposition of the prosecutrix other prosecution witnesses have not come forward to tender evidence though more than nine dates of hearing has passed, would lend credence to the apprehension of the complainant – Held that the High Court seems to have erred in not considering these basic facts while considering the prayer for grant of bail by taking into consideration the well-established judicial pronouncements – That the court framed charges, prima facie discloses the possibility and reasonable suspicion of the accused prima facie culpability – Held that the impugned order granting bail is not only bereft of material particulars which would justify grant of bail – High Court has got swayed on the ground of delay and the video having not been recovered during the course of investigation and has given a complete go by to the allegation made in the FIR and statement recorded under Section 161 and 164 of the Cr.P.C. as also the testimony of the prosecutrix before the jurisdictional court – Order of the High Court liable to be to be set aside. (Para 20 to 28) Bhagwan Singh Vs. Dilip Kumar @ Deepu @ Depak And Another: 2023 STPL(Web) 206 SC

Criminal Procedure Code, 1973, Section 439 – Bail – Held that the grant of bail is a discretionary relief – Such discretion would have to be exercised in a judicious manner and not as a matter of course – The grant of bail is dependent upon contextual facts of the matter being dealt with by the Court and may vary from case to case – There cannot be any exhaustive parameters set out for considering the application for grant of bail – However, it can be noted that; (a) While granting bail the court has to keep in mind factors such as the nature of accusations, severity of the punishment, if the accusations entails a conviction and the nature of evidence in support of the accusations; (b) reasonable apprehensions of the witnesses being tempered with or the apprehension of there being a threat for the complainant should also weight with the Court in the matter of grant of bail. (c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought to be always a prima facie satisfaction of the Court in support of the charge. (d) Frivility of prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to have an order of bail. (Para 12) Bhagwan Singh Vs. Dilip Kumar @ Deepu @ Depak And Another: 2023 STPL(Web) 206 SC

Criminal Procedure Code, 1973, Section 439 – Bail – Cancellation – Held that when a prayer is made for the cancellation of grant of bail cogent and overwhelming circumstances must be present and bail once granted cannot be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it in conducing to allow fair trial – Cancellation of the bail has to be dealt on a different footing in comparison to a proceeding for grant of bail – There can be supervening circumstances which may develop post the grant of bail and are non-conducive to the fair trial, making it necessary to cancel the bail – Bail can also be revoked where the Court has considered irrelevant factors or has ignored relevant material available on record which renders the order granting bail legally untenable – The gravity of the offence, conduct of the accused and societal impact of an undue indulgence by Court when the investigation is at the threshold, are also amongst a few situations, where a Superior Court can interfere in an order of bail to prevent the miscarriage of justice and to bolster the administration of criminal justice system. (Para 13 to 15) Bhagwan Singh Vs. Dilip Kumar @ Deepu @ Depak And Another: 2023 STPL(Web) 206 SC

Penal Code, 1860, Sections 302, 436 and 326-A – Murder – Dying declaration – Appeal against conviction – Picture that emerges on cumulative assessment of the materials on record is that the appellant-convict had strained relationship with his son Islamuddin (deceased) born in the wedlock of his first marriage with Ishrat – His relations with his two brothers (deceased persons) were also strained – The defence put forward by the appellant-convict is that with a view to grab the property, PW-2 Shanu alias Shahnawaz, PW-4 Soni and others conspired to eliminate the deceased persons and thereafter, to throw the entire blame on the appellant-convict of having committed the crime – The incident occurred in the night hours – The three deceased were sleeping in one room – The PW-2 and PW-4 are said to have been sleeping in an adjoining room in the house – The appellant-convict is said to have locked the door of the room from outside in which, the deceased persons were sleeping. He poured inflammable substance in the room and set the room on fire – The three deceased persons suffered severe burn injuries and ultimately succumbed to death – Islamuddin and Irshad are said to have given their dying declarations before the A.S.I. – Why the dying declaration of Naushad could not be recorded is not clear – A close perusal of the two dying declarations indicates that Irshad and Islamuddin raised alarm on getting severely burnt and they were taken out of the room by the neighbour – Who is this neighbour, they are referring to in their dying declarations is also not clear? – Irshad and Islamuddin in their respective dying declarations do not say a word about the presence of the PW-2 Shanu alias Shahnawaz and PW-4 Soni – Both these witnesses do not figure in the two dying declarations – In both the dying declarations it has been very clearly stated that after a long time a neighbour came to their rescue and took them out of the burning room – If PW-2 and PW-4 were present at the time when the room was on fire and it is they who opened the door and took out the three deceased persons, then why the PW-2 and PW-4 do not figure in the dying declarations of Irshad and Islamuddin? Why Islamuddin and Irshad said in their dying declarations that after a long time, the neighbour came to their rescue and took them out of the room? – If a neighbour came to their rescue, then where were PW-2 and PW-4 at the time of the incident? – PW-2 and PW-4 have deposed that they both were sleeping in the room adjacent to the room in which the deceased persons were sleeping – This is one very crucial aspect of the matter which, the prosecution has not been able to explain or clarify – Mode and manner, in which the dying declarations came to be recorded, is also something which creates a doubt, as regards its truthfulness and trustworthiness – Held that neither the two dying declarations inspire any confidence nor the oral evidence of the PW-2 and PW-4 respectively inspire any confidence – Had the dying declarations stood corroborated by the oral evidence of the PW-2 and PW-4, then probably, it would have been altogether a different scenario – However, the two dying declarations are not consistent or rather contradictory to the oral evidence on record – It is difficult to rest the conviction solely based on the two dying declarations – PW-2 has been otherwise also not believed by the High Court – Oral evidence of the PW-4 Soni, also does not inspire any confidence – Not satisfied that the prosecution has proved its case against the appellant-convict beyond reasonable doubt – All these appeals allowed and the appellant-convict acquitted of all the charges levelled against him. (Para 39 to 47, 67 to 69) Irfan @ Naka Vs. State Of Uttar Pradesh: 2023 STPL(Web) 207 SC

Evidence Act, 1872, Section 32 – Penal Code, 1860, Sections 302, 436 and 326-A – Evidence – Dying declaration – The justification for the sanctity/presumption attached to a dying declaration, is twofold; (i) ethically and religiously it is presumed that a person while at the brink of death will not lie, whereas (ii) from a public policy perspective it is to tackle a situation where the only witness to the crime is not available – Since time immemorial, despite a general consensus of presuming that the dying declaration is true, they have not been stricto-sensu accepted, rather the general course of action has been that judge decides whether the essentials of a dying declaration are met and if it can be admissible, once done, it is upon the duty of the court to see the extent to which the dying declaration is entitled to credit – In India too, a similar pattern is followed, where the Courts are first required to satisfy themselves that the dying declaration in question is reliable and truthful before placing any reliance upon it – Thus, dying declaration while carrying a presumption of being true must be wholly reliable and inspire confidence – Where there is any suspicion over the veracity of the same or the evidence on record shows that the dying declaration is not true it will only be considered as a piece of evidence but cannot be the basis for conviction alone – It is unsafe to record the conviction on the basis of a dying declaration alone in the cases where suspicion, like the case on hand is raised, as regards the correctness of the dying declaration – In such cases, the Court may have to look for some corroborative evidence by treating the dying declaration only as a piece of evidence – The evidence and material available on record must be properly weighed in each case to arrive at an appropriate conclusion – In the case on hand, although the appellant-convict has been named in the two dying declarations as a person who set the room on fire yet the surrounding circumstances render such statement of the declarants very doubtful. (Para 48, 60, 61 and 64) Irfan @ Naka Vs. State Of Uttar Pradesh: 2023 STPL(Web) 207 SC

Evidence Act, 1872, Section 32 – Dying declaration – Evidentiary value – Weight of dying declaration – Held that there is no hard and fast rule for determining when a dying declaration should be accepted; the duty of the Court is to decide this question in the facts and surrounding circumstances of the case and be fully convinced of the truthfulness of the same – Certain factors below reproduced can be considered to determine the same, however, they will only affect the weight of the dying declaration and not its admissibility: –

(i) Whether the person making the statement was in expectation of death?

(ii) Whether the dying declaration was made at the earliest opportunity? “Rule of First Opportunity”

(iii) Whether there is any reasonable suspicion to believe the dying declaration was put in the mouth of the dying person?

(iv) Whether the dying declaration was a product of prompting, tutoring, or leading at the instance of police or any interested party?

(v) Whether the statement was not recorded properly?

(vi) Whether, the dying declarant had opportunity to clearly observe the incident?

(vii) Whether, the dying declaration has been consistent throughout?

(viii) Whether, the dying declaration is a manifestation / fiction of the dying person’s imagination of what he thinks transpired?

(ix) Whether, the dying declaration was itself voluntary?

(x) In case of multiple dying declarations, whether, the first one inspires truth and consistent with the other dying declaration?

(xi) Whether, as per the injuries, it would have been impossible for the deceased to make a dying declaration?

It is the duty of the prosecution to establish the charge against the accused beyond the reasonable doubt – The benefit of doubt must always go in favour of the accused – It is true that dying declaration is a substantive piece of evidence to be relied on provided it is proved that the same was voluntary and truthful and the victim was in a fit state of mind – It is just not enough for the court to say that the dying declaration is reliable as the accused is named in the dying declaration as the assailant. (Para 62 and 63) Irfan @ Naka Vs. State Of Uttar Pradesh: 2023 STPL(Web) 207 SC

Criminal Procedure Code, 1973, Section 439 – Bail – Challenge as to – Offences u/s 376(D)/ 228A/ 506/ 120B IPC – Held that that the decision of the Division Bench of the High Court has neither dealt with the real issue, nor indicated reasons which are germane and required consideration concerning the grant or rejection of bail – Rather, the High Court examined issues, which ought not to have been the primary factors when considering the prayer for bail of respondent no. 2 – This could have entailed remand to the High Court for a discussion, even if short, on the merits of granting bail in the present facts and circumstances – However, after independently considering the matter on merits after hearing learned counsel in extenso, do not find reason to interfere with the Impugned Judgments – At the same time, the interest of justice must be preserved – Further conditions imposed in addition to those laid down by the High Court – (A) The Trial Court shall proceed expeditiously with the case and without any undue adjournment(s), and; – (B) The accused-respondent shall render full cooperation in the trial, and; – (C) The accused-respondent shall not leave the territory of India. Condition No. 4 imposed by the High Court shall stand modified accordingly, and; – (D) Condition No. 5 imposed by the High Court is varied and shall now read as ‘The Petitioner shall submit his Passport to the Trial Court. In case, the Petitioner holds more than one Passport (Diplomatic and/or Personal), the other Passport shall also be deposited with the Trial Court.’ Any violation(s) of the terms and conditions stipulated supra and by the High Court would be grounds for cancellation of bail. The observations herein will not aid the accused nor impede the Petitioner or the Prosecution at trial – Petitioner fears for her and her family’s safety – Made clear that the onus of ensuring their safety is on the Union Territory Administration – Similarly, the Union Territory Police is put to notice in this regard – Insofar as the Petitioner claims that the Director-General of Police has not acted on her subsequent complaints seeking registration of First Information Reports against certain other persons, the Director-General directed to examine the same and take an independent decision on what action, if any, is called for, in accordance with law, within ten days from today. (Para 11 to 13)  Xxx Vs. Union Territory Of Andaman & Nicobar Islands & Anr. :2023 STPL(Web) 212 SC

Penal Code, 1860, Sections 302, 392, 394 and 397 /34 – Evidence Act, 1872, Section 8,9, 27 – Murder – Conviction Upheld – Appeal against conviction – Appreciation of evidence –Test Identification Parade –Refusal by accused to take part in TIP – Disclosure statement –Res gestae – Evidence of PW 1 regarding the occurrence that took place on 16.08.2008 early in the morning at 3.30 is fully supported by the medical evidence on record – The PW 1 along with the deceased was immediately taken for medical attention – The deceased was found to have suffered multiple injuries in the form of punctured wounds caused by a sharp pointed weapon – PW 1 was also found to have suffered two injuries and one of those was in the form of a punctured wound in the chest caused by a sharp pointed weapon – Considering the nature of injuries suffered by the PW 1 and the deceased and the fact that the PW 1 and the deceased were cornered by the accused persons and further that they were robbed of their money, the entire incident could certainly have afforded sufficient time and opportunity to the PW 1 to recall and identify the assailants including the appellant convict herein -If a witness is trustworthy and reliable, the mere fact that no identification parade could be conducted and the appellant convict was identified for the first time before the Trial Court, would not be a reason to discard the evidence of the witness – In a case where an accused himself refused to participate in the TIP, it is not open to him to contend that the statement of the eye witnesses made for the first time in Court, wherein they specifically point towards him as a person who had taken part in the commission of the crime, should not be relied upon. Such a plea is available provided the prosecution is itself responsible for not holding a TIP – However, in a case where the accused himself declines to participate in a TIP, the prosecution has no option but to proceed in a normal manner like all other cases and rely upon the testimony of the witnesses, which is recorded in Court during the course of the trial of the case – It will be too much to say that the PW 1 was able to identify the accused convict for the first time before the Trial Court only because the PW 1 had an opportunity to have a look at him on 15.09.2008 at the Rohini Court Complex -At the time of his arrest, he is said to have made a disclosure statement recorded in Ex. PW10/A – The statement was one relating to the weapon of offence i.e. ice pick which was ultimately discovered from his house – Discovery of the ice pick. aforesaid is one additional circumstance pointing towards the guilt of the appellant and at the same time lending credence to the substantive evidence of his identification by PW 1 before the Trial Court – Even if we have to discard the evidence of discovery on the ground that no independent witnesses were present at the time of discovery, still the fact that the appellant herein led the police party to his house and handed over the ice pick used at the time of the assault, would be reflective of his conduct – By virtue of Section 8 of the Evidence Act, the conduct of an accused is relevant, if such conduct influences or influenced by any fact in issue or relevant fact – The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where he had concealed the weapon of offence i.e. ice pick, would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the appellant convict contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act or not – Even if we hold that the discovery statement made by the appellant convict is not admissible under Section 27 of the Evidence Act, still it is relevant under Section 8 of the Evidence Act – It is difficult to say that the prosecution has not been able to establish its case against the appellant convict beyond a reasonable doubt – Appeal liable to be dismissed. (Para 68 to 80) Mukesh Singh Vs. State (Nct Of Delhi): 2023 STPL(Web) 213 SC

Constitution of India, Article 20(3) – Evidence Act, 1872, Section 9 –  Test Identification Parade – Whether TIP violates the fundamental right of an accused under Article 20(3) of the Constitution – Held what is prohibited by Article 20(3) of the Constitution is procuring by compulsion of the positive volitional evidentiary acts of an accused – It is true that an accused may be said to be compelled to attend a test identification parade, but this compulsion does not involve any positive volitional evidentiary act – His mere attendance or the exhibition of his body at a test identification parade even though compelled, does not result in any evidentiary act until he is identified by some other agency – The identification of him by a witness is not his act, even though his body is exhibited for the purpose – His compelled attendance at a test identification parade is comparatively remote to the final evidence and cannot be said by itself to furnish any positive volitional evidentiary act. (Para 26) Mukesh Singh Vs. State (Nct Of Delhi): 2023 STPL(Web) 213 SC

Criminal Procedure Code, 1973, Section 54A – Constitution of India, Article 20(3) – Evidence Act, 1872, Section 9 – Identification of person arrested – Test Identification Parade – Refusal to join the TIP True purport of any order that the Magistrate may pass in exercise of powers under Section 54A of the CrPC directing any person to subject himself or herself to the TIP – Section 54A of the Code, 1973 is restricted to identification of persons only – Section 54A has no application where the question of identification of articles arises – TIP is part of investigation and the investigation of a case is to be conducted by the investigating agency and it is their statutory prerogatives – There was no statutory provision authorizing the accused to pray for placing him in the test parade – After the introduction of Section 54A in the CrPC an accused is under an obligation to stand for identification parade – An accused cannot resist subjecting himself to the TIP on the ground that he cannot be forced or coerced for the same – If the coercion is sought to be imposed in getting from an accused evidence which cannot be procured save through positive volitional act on his part, the constitutional guarantee as enshrined under Article 20(3) of the Constitution will step in to protect him – However, if that evidence can be procured without any positive volitional evidentiary act on the part of the accused, Article 20(3) of the Constitution will have no application – The accused while subjecting himself to the TIP does not produce any evidence or perform any evidentiary act – It may be a positive act and even a volitional act, but only to a limited extent, when the accused is brought to the place where the TIP is to be held – It is certainly not his evidentiary act – The accused concerned may have a legitimate ground to resist facing the TIP saying that the witnesses had a chance to see him either at the police station or in the Court, as the case may be, however, on such ground alone he cannot refuse to face the TIP – It is always open for the accused to raise any legal ground available to him relating to the legitimacy of the TIP or the evidentiary value of the same in the course of the trial – However, the accused cannot decline or refuse to join the TIP. (Para 33 and 35) Mukesh Singh Vs. State (Nct Of Delhi): 2023 STPL(Web) 213 SC

Evidence Act, 1872, Section 9 – Test Identification Parade –Object – Evidentiary value – The term ‘identification’ means proving that a person, subject or article before the Court is the very same that he or it is alleged, charged, or reputed to be. Identification is almost always a matter of opinion or belief – The identification has by itself no independent value – During the investigation of a crime committed by persons unknown to the witnesses, the persons arrested on suspicion of their complicity in the crime have got to be confronted by the investigating authority with the witnesses so that they can find out whether they are the persons who committed the crime or not – Before the investigating authorities send up a case to Court, they must be satisfied that the persons arrested by them are the persons accused of having committed the crime – If they were known to the witnesses, the witnesses would have given their names and that would have established their identity, but when they were not known, their identity could be established only if the witnesses on seeing them say that they are the offenders – Since it would be very easy for a witness who has little regard for truth, to say that the person arrested on suspicion was the offender, he is confronted with the suspect mixed with innocent men. If he picks him out, that would add to the credibility of his statement that he was the offender. This is the primary object of identification proceeding – Substantive evidence is the evidence of identification in court and the test identification parade provides corroboration to the identification of the witness in court, if required – However, what weight must be attached to the evidence of identification in court, which is not preceded by a test identification parade, is a matter for the courts of fact to examine. (Para 38 to 41, 48) Mukesh Singh Vs. State (Nct Of Delhi): 2023 STPL(Web) 213 SC

Criminal Procedure Code, 1973, Section 173, 167, 272, 464, 465 – Charge Sheet – Language – Charge-sheet supplied in English – Application before the learned Judicial Magistrate seeking a direction to supply a Hindi translation of the charge sheet filed by the appellant in English language – Learned Magistrate proceeded to reject the prayer made by the first respondent recording finding of fact that he is educated person having knowledge of English – The order of the learned Magistrate has been confirmed by the Sessions Court in revision – However, the High Court interfered by holding that Hindi was the only language of the Criminal Courts in the State and therefore, the first respondent was entitled to seek a translation of the charge sheet into the language of the Court – Held that wherever the legislature intended, there is a specific provision incorporated requiring the Court to mandatorily use the language of the Court in the proceedings – There is no such requirement laid down in respect of the report/charge sheet under Section 173 of CrPC -There is no specific provision in CrPC which requires the investigating agency/officer to file it in the language of the Court determined in accordance with Section 272 of CrPC – Even if such a requirement is read into Section 173, per se, the proceedings will not be vitiated if the report is not in the language of the Court – The test of failure of justice will have to be applied in such a case as laid down in Section 465 of CrPC – a charge sheet filed within the period provided either under Section 167 of CrPC or any other relevant statute in a language other than the language of the Court or the language which the accused does not understand, is not illegal and no one can claim a default bail on that ground -There are central agencies like the National Investigation Agency, Central Bureau of Investigation, etc. – These agencies investigate serious offences or offences having wide ramifications – Obviously, such central agencies, in every case will not be in a position to file the final report in the language of the concerned Court as determined by Section 272 of CrPC – A finding of fact was recorded by the trial court that the respondent is an educated person – The offence relates to an examination for which one of the eligibility conditions was having a knowledge of the English language – Moreover, it was found that the advocate engaged by him also knows the English language – Coming to the Criminal Appeal arising out of SLP (Crl.) 10680 of 2022, the trial court has recorded a finding that the first respondent-accused was a science graduate having knowledge of the English language – Moreover, his advocate was conversant with the English language – In the facts of the cases in hand, it cannot be said that a non-supply of translation of the charge sheet and other documents to the accused in both appeals will occasion a failure of justice – Impugned orders passed by High Court liable to be set aside.(Para 18 to 23) Central Bureau Of Investigation Vs. Narottam Dhakad & Anr. :2023 STPL(Web) 215 SC

Bihar Jail Manual (as amended by Notification dated 10.12.2002 and notified on 28.12.2002), Rule 529(iv)(b) – Criminal Procedure Code, 1973, Section 432, 433A – Constitution of India, Article 72, 161 – Remission – Premature release – Sentencing is a judicial exercise of power – The act thereafter of executing the sentence awarded, however, is a purely executive function – which includes the grant of remission, commutation, pardon, reprieves, or suspension of sentence – This executive power is traceable to Article 72 and 161 of the Constitution of India, by which the President of India, and Governor of the State, respectively, are empowered to grant pardons and to suspend, remit or commute sentences in certain cases. Whilst the statutory (under Section 432 CrPC) and constitutional (under Articles 72 and 161 of the Constitution) powers are distinct, the former limited power, is still an imprint of the latter (much wider power), and must be understood as such and placed in this context – Reason for rejection of the petitioner’s application, is the adverse report submitted by the presiding judge in the first round, which was perfunctorily relied upon and reiterated in the report submitted by the then presiding judge in the second round as well. Both the reports submitted by the presiding judges (at the relevant time), demonstrate a casual opinion, based solely on the judicial record which presumably consisted of the finding of guilt, by the trial court and High Court. This offers only a dated insight on the petitioner, one that has limited opportunity to consider the progress the convict has made in the course of serving his sentence – Yet, the Remission Board has privileged the presiding judge’s opinion over the other authorities – like the Probation Officer, and Jail authorities, who are in a far better position to comment on his post-conviction reformation – offering a cautionary tale – Held that overemphasis on the presiding judge’s opinion and complete disregard of comments of other authorities, while arriving at its conclusion, would render the appropriate government’s decision on a remission application, unsustainable – The discretion that the executive is empowered with in executing a sentence, would be denuded of its content, if the presiding judge’s view – which is formed in all likelihood, largely (if not solely) on the basis of the judicial record – is mechanically followed by the concerned authority – Such an approach has the potential to strikes at the heart, and subvert the concept of remission – as a reward and incentive encouraging actions and behaviour geared towards reformation – in a modern legal system – The appropriate government, should take a holistic view of all the opinions received (in terms of the relevant rules), including the judicial view of the presiding judge of the concerned court, keeping in mind the purpose and objective, of remission. (Para 9, 15 and 17) Rajo @ Rajwa @ Rajendra Mandal Vs. State Of Bihar & Ors.:2023 STPL(Web) 216 SC

Bihar Jail Manual (as amended by Notification dated 10.12.2002 and notified on 28.12.2002), Rule 529(iv)(b) – Criminal Procedure Code, 1973, Section 432, 433A – Constitution of India, Article 72, 161 – Remission – Premature release – Petitioner long completed 14 years of actual imprisonment (on 19.07.2013), and in fact has, as on 26.07.2023, completed over 24 years of actual imprisonment – Accounting for the remission earned (of over 4 years and 8 months of remission, i.e., a total 1694 days), he has served 28 years, 8 months and 21 days -On the date of conviction (24.05.2001), it is the pre-2002 policythat was applicable -In the old pre-2002 policy, there is no mention of any ineligibility criteria, much less one that is analogous to Rule 529(iv)(b) of the 2002 policy, which was cited by the Remission Board in its rejection of the petitioner’s application on 20.04.2023 – It would be appropriate if the Remission Board reconsidered the petitioner’s application for remission afresh, considering the reports of the police and other authorities, the post-prison record of the petitioner, the remissions earned (including that which is earned for good conduct) his age, health condition, family circumstances, and his potential for social engagement, in a positive manner – The concerned presiding judge directed to provide an opinion on the petitioner’s application for premature release, by examining the judicial record, and provide adequate reasoning, taking into account the factors laid down in Laxman Naskar, within one month from the date of this judgment – With the benefit of this new report, the Remission Board may reconsider the application – without entirely or solely relying on it, but treating it as valuable (maybe weighty) advice that is based on the judicial record – Given the long period of incarceration already suffered by the writ petitioner and his age, the Remission Board should endeavour to consider the application at the earliest and render its decision, preferably within three months from the date of this judgment – A copy of this judgment shall be marked by the Registry of this Court, to the Home Secretary, Government of Bihar, who is the chairperson of the Remission Board, as well as the concerned Presiding Judge, through the Registrar, High Court of Judicature at Patna High Court.(Para 24 and 25) Rajo @ Rajwa @ Rajendra Mandal Vs. State Of Bihar & Ors.:2023 STPL(Web) 216 SC

Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 50 – NDPS – Body Search – Appeal against conviction – No mention in the consent letters that the appellants were informed that they have a right to say that their body search should be conducted before a Magistrate or a Gazetted Officer – Consent letter, only records that the appellants had voluntarily agreed to a body search. It was mandatory that the suspect was made aware of the existence of his right to be searched before a gazetted officer or a Magistrate – Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Plea accepted – Appeal allowed – Conviction set aside. Vijaysinh Jadeja vs State of Gujarat[(2011)1SCC 609]relied on (Para 4, 7, 8) Mina Pun Vs. State Of Uttar Pradesh: 2023 STPL(Web) 221 SC

Quashing of FIR – Illegal sealing of shop – High Court order registration of criminal case against an officer for illegally sealing shop – Challenged – Plea that directions were passed without affording an opportunity to the concerned officer to explain the relevant facts and circumstance – Held: It is apparent from record that, neither was the officer made party to the dispute, nor was he given an opportunity to show cause, and further, nothing on record reflected the officer holding an animus against the respondent, before such adverse directions were passed against him – The directions issued by the High Court in registration of criminal investigation against an officer, unquestionably against the settled principles of law, having a demoralizing effect on the well-meaning officers of the State. It is clear that the impugned directions were passed upon an incorrect and erroneous appreciation of the record. Appeal allowed – FIR ordered to be closed. (Para 16, 20) State Of Punjab And Anr. Vs. M/S. Shikha Trading Co.: 2023 STPL(Web) 222 SC

Code of Criminal Procedure, 1973 – Section 173, 190, 200 – Final Police Report- Protest Petition – Exercise of power by magistrate – Direction by magistrate to register protest petition as Complaint – Set aside by High Court – Appeal against – Magistrate order challenged after four years.

Held: on the receipt of the police report under Section 173 Cr.P.C., the Magistrate can exercise three options. Firstly, he may decide that there is no sufficient ground for proceeding further and drop action. Secondly, he may take cognizance of the offence under Section 190(1)(b) on the basis of the police report and issue process; and thirdly, he may take cognizance of the offence under Section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200. It may be noted that even in a case where the final report of the police under Section 173 is accepted and the accused persons are discharged, the Magistrate has the power to take cognizance of the offence on a complaint or a Protest Petition on the same or similar allegations even after the acceptance of the final report.

The discretionary order passed by the concerned CJM issuing summons to the accused, after recording statements of the complainant and the eight witnesses and after recording prima facie satisfaction about the commission of the alleged crime, also did not warrant any interference by the High Court. In our opinion, the High Court has committed gross error in setting aside the orders passed by the CJM. High Court order set aside – Trial Court to proceed with complaint (Para 11, 12, 13) Zunaid Vs State Of U.P. & Ors.: 2023 STPL(Web) 223 SC

Indian Penal Code, 1860 – Section 302 – Practice and Procedure – Non grant of reasonable time to advocate for preparing case – Murder Case – The High Court decided the appeal on the same day on which the advocate was appointed – The advocate appointed to represent accused was not granted even a reasonable time to prepare herself. Held: This was a case where the appellant was convicted for the offence punishable under Section 302 of the IPC and was sentenced to undergo life imprisonment. Therefore, it was a duty of the Court to give a reasonable time to the advocate appointed to go through the file and get ready to assist the Court. The object of appointing an advocate to espouse the cause of the appellant who was unrepresented was to ensure that justice is done to him. High Court Judgment set aside – Remand back. (Para 6, 7) Niranjan Das @ Niru Das @ Mahanto Vs. State Of West Bengal: 2023 STPL(Web) 224 SC

Dowry Prohibition Act, 1961 – Section 3, 4 – Indian Penal Code, 1860 – Section 498A – Quashing of FIR – Cruelty – Complaint after four years of leaving of husband house – Complaint only after husband files divorce petition – Contradictions – In-consistency – No specific allegation – Held: Allegations are mostly general and omnibus in nature, without any specific details as to how and when her brothers-in-law and mother-in-law, who lived in different cities altogether, subjected her to harassment for dowry – Wife clearly wanted to wreak vengeance against her in-laws – FIR against all except husband. (Para 19 to 22)

The allegation levelled by Bhawna against her mother-in-law, Kusum Lata, with regard to how she taunted her when she wore a maxi is wholly insufficient to constitute cruelty in terms of Section 498A IPC. (Para 19)

It will not be enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not as, in frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection, to try and read between the lines. (Para 16) Abhishek Vs. State Of Madhya Pradesh: 2023 STPL(Web) 225 SC

Constitutional Law

Constitution of India, Article 226 – Writ jurisdiction – Disputed questions of facts – Power of re-entry – The total extent of land in Plot No. 1288 is 52 acres, 470 decimals. On 07.05.1981, IDCO was assigned, in Plot Number 1288, agricultural land admeasuring acres 4.800 decimals. By issuing the Resumption Notice, the Tahsildar admitted Writ Petitioner’s possession of the petition land – Even before initiating proceedings for recovery, the possession of allotted land of an extent of acres 42.870 decimals is stated to have been given to IDCO by the State – It is also not clear whether the assignment in any manner overlaps with the petition land assigned to Vice Admiral Ganesh Prasad Panda – The State assumed the power of re-entry of the land settled on a higher pedestal and that the resumption of land in favour of the State as automatic – If we assume that the land alienated to IDCO is different or distinct, then, interference with possession of petition land is arbitrary and illegal – Secondly, if the extent viz. petition land and land settled in favour of IDCO, then, without dispossessing the petitioner(s), in the manner known to law, the settlement in favour of IDCO, by including petition land, is illegal and unconstitutional – The re-entry without reference to the law, in the facts and circumstances of this case, has been rightly held in favour of the Writ Petitioners . (Para 12.1 and 12.2) Chairman-Cum-Managing Director, Industrial Infrastructure Development Corporation Of Orissa Vs. Late Surgeon Vice Admiral Gp Panda Through His Legal Heirs And Others: 2023 STPL(Web) 200 SC

Constitution of India, Article 226 – Writ jurisdiction – Disputed questions of facts – Power of re-entry – The serious objection of the State against impugned Judgment is that the High Court has decided disputed questions of facts – Held that after perusing the Judgment, we consider that the High Court recorded a finding not by deciding a fact in issue on title, identity, or entitlement but from the record and admitted documents – The solitary ground raised against the impugned Judgment, therefore, deserves to be rejected – Method adopted by the respondent-State for dispossessing or attempting to dispossess the first petitioner is unconstitutional and illegal – The State ought not to approbate and reprobate on the possession of Vice Admiral Ganesh Prasad Panda of petition land. (Para 12.3) Chairman-Cum-Managing Director, Industrial Infrastructure Development Corporation Of Orissa Vs. Late Surgeon Vice Admiral Gp Panda Through His Legal Heirs And Others: 2023 STPL(Web) 200 SC

Consumer

Consumer Protection Act, 2019, Section 69, 98 – Limitation – Cause of action – Apartments in a housing project – Increase in the sale area – Cause of action – Communication/letter dated 27.04.2017 by the appellant states that the construction work was in progress and that the appellant would soon be starting the occupation certificate process – Held that do not read the communication/letter as the starting point of the cause of action’ – Cause of action’ being the foundation of the claim refers to the entire set or bundle of facts necessary and material to prove in order to get a judgment – It refers to a definite point of time when the requisite ingredients constituting that cause of action’ are complete – The cause of action’ is complete when they provide the aggrieved party with the right to invoke jurisdiction of the court/forum – The test is to determine when the aggrieved person could have first maintained action for a successful result – Communication/letter dated 27.04.2017 was an assertion, albeit without any specific details or particulars – The appellant, as per the contractual terms, is well within their right to ask for enhanced sale consideration on increase in the sale area as defined – The respondents have not questioned and challenged this right of the appellant – They have challenged the computation and calculations – The respondents have the right to ask for calculations and details, when the appellant had stated that the sale area had increased -On being satisfied with the calculation, the respondents could have accepted the increase in the sale area, if the same was in accordance with the agreement – The cause of action’ arose when the appellant insisted and compelled the respondents/allottees to make payment, but did not furnish the details and particulars to enable the respondents/allottees to ascertain the actual allocated sale area – One would not expect the allottee or the consumer to challenge the demand, which is in terms of the contract between the parties, and is therefore not questionable – In such cases, no cause of action’ arises – Further, the onus to justify and substantiate the claim and calculations of increased sale area was, and is on the appellant – It is an accepted position that the sale deeds were executed with the respondents between the period from 13.04.2018 to as late as 09.01.2020 – In view of the aforesaid, the complaints filed by the respondents cannot be dismissed on the ground of being barred by limitation under Section 69 of the Act – Also observe that the consumer forums have the power to condone the delay when sufficient cause is shown, even after two years of the cause of action’ having arisen – While no application for condonation of delay was filed, the National Commission could have always granted an opportunity to the respondents. (Para 14) Experion Developers Private Limited Vs. Himanshu Dewan And Sonali Dewan And Others: 2023 STPL(Web) 193 SC

Consumer Protection Act, 2019, Section 2(11),(42), 69, 98 – Limitation – Estoppel – Apartments in a housing project – Increase in the sale area – Deficiency in service – Estoppel – Argument raised by the appellant on acquiescence and estoppel, as the respondents are seeking a refund of the amount paid without any demur or protest about four years after the payments were made – It is submitted that the plea of deficiency of service is hit by the legal bar of acceptance and ones’ previous action and conduct – It is highlighted that the conveyance deeds were executed by the appellant on the respondents/allottees upon making full payment, including the payments with regard to the increased area, and such payment, it is submitted, was voluntary and without reservation – It is also argued by the appellant that it is not even the case of the respondents that they/original allottees had made payments under some threat, coercion or duress – Therefore, it does not lie in the mouth of the respondents to say, rather, they were estopped from saying four years after the execution of the conveyance deeds in their favour that there was no actual increase in the sale area and the demand raised by the appellant in that regard was not justified or was illegal – As these aspects and questions are essentially factual, albeit have not been ascertained and addressed in the present case – Impugned order and judgment passed by the National Commission set aside and the appeal is disposed of with a direction of remand in terms of the observations and directions given – Clarified that the observations made in this order, insofar as limitation is concerned, would be binding and has attained finality – Observations made in this order on the question of acquiescence/estoppel and merits/justification of the increase in the sale area would be aspects which would have to be considered by the National Commission afresh in terms of the observations contained in the present judgment – Not specifically commented on whether or not, in the facts of the present case, principles of acquiescence/estoppel will apply or whether or not the appellant has been able to justify and substantiate the claim for the increase in the sale area – These aspects would be examined by the National Commission by ascertaining the facts and on merits. (Para 15 and 37) Experion Developers Private Limited Vs. Himanshu Dewan And Sonali Dewan And Others: 2023 STPL(Web) 193 SC

Constitution of India, Article 136, 141 – Consumer Protection Act, 2019, Section 2(11),(42) – Res judicata – Precedent – Apartments in a housing project – Increase in the sale area – Deficiency in service – Order dated 12.01.2021 of this Court dismissing the civil appeals and the order dated 11.01.2022 dismissing the subsequent review petitions filed in the case of Pawan Gupta (supra) are non-reasoned orders that do not state what has weighed with the court while dismissing the appeals and the review petitions – However, the result is that the order passed by the National Commission in the case of Pawan Gupta (supra) has attained finality and binds the parties to the decision – However, dismissal of the appeal would not operate as res judicata in the case of the respondents against the appellant as they were not parties to the said case, and the proceedings initiated by Pawan Gupta were fact specific and not in a representative capacity – The dismissal of the appeal in the case of Pawan Gupta (supra) without any reasons being recorded would not attract Article 141 of the Constitution of India as no law was declared by the Supreme Court, which will have a binding effect on all courts and tribunals in India – Held that the order of this Court dismissing the appeal in the case of Pawan Gupta (supra) cannot be read as a precedent and applied to the cases in hand – In fact, precedents cannot decide questions of fact – National Commission was therefore required to consider and examine the contentions of the appellant and not overrule the same on the grounds of the principle of res judicata and on the rule of binding precedent, which do not apply – An order of remand on the question of merits as to the stipulation and increase in the sale area is therefore required.(Para 21, 31, 32, 36) Experion Developers Private Limited Vs. Himanshu Dewan And Sonali Dewan And Others: 2023 STPL(Web) 193 SC

Dishonour of Cheque

Negotiable Instruments Act, 1881, Section 138 read with Sections 141 and 142 – Penal Code, 1860, Sections 420, 418, 417,403, 409 and 406 – Dishonour of Cheque – Criminal Procedure Code, 1973, Section 482 –  Quashing of complaint – Complaint revived – Complaint of dishonour of cheque – Plea raised by the respondent no.1 for seeking quashing of the proceedings before the High Court was that on the dates when the cheques were issued for discharging the liability for payment of rent for the premises taken by the respondent no.3, he had already retired from the firm and a Retirement Deed in that regard was executed on 01.04.2018accepted by the High Court and quashed the summoning order as well as the complaints against him – Held that it would be a matter of evidence to be proved before the trial Court, as to whether any Retirement Deed was issued and a public notice concerning the same was issued, before the complaints were filed -Public notice regarding retirement by the respondent no.1 from the firm was issued on 09.02.2022 i.e., much after the complaints had been filed and the summoning order had been issued by the trial Court on05.02.2020 – Even the quashing petitions were filed by the respondentno.1 in October 2021 – The public notice was issued few days before the High Court decided the quashing petition on 14.03.2022 – It is not the case set up by the respondent no.1 that in the Partnership Deed it is mentioned that he was a sleeping partner in the firm – Under such circumstances, the Retirement Deed dated 01.04.2018 sought to be produced by the respondent no.1 for quashing of the summoning order and the complaints could not be taken on its face value, and treated as clinching evidence to quash the complaints – It would be a matter of evidence to be led before the trial Court – As there are specific allegations against the respondent no.1 in the complaint and he was admittedly a partner in the partnership firm when the rent deed was executed, he is liable to face prosecution – Impugned order passed by the High Court quashing the summoning order and the complaints against the respondent no.1 liable to be set aside – The complaints filed by the appellants against the respondent no.1 are revived to be tried by the Court concerned. (Para 19 to 21) Riya Bawri Etc. Vs. Mark Alexander Davidson & Ors.: 2023 STPL(Web) 203 SC

Election

Chhattisgarh Panchayat Raj Adhiniyam, 1993, Section 122, sub-section (1) of Section 95 read with Section43 – Chhattisgarh Panchayat Nirvachan Niyam, 1995, Rule 6, 77(1)(2), 80 – Election – Recount of vote – Whether the Election Petition filed by the petitioner before the Sub Divisional Officer (R) seeking relief of recounting of votes alone, without seeking any relief under Rule 6 of the Rules of 1995 was maintainable?  – Held that election contest is not an action at law or a suit in equity but purely a statutory proceeding, provision for which has to be strictly construed – The petitioner having failed to make any application in writing for re-counting of votes as required under Section 80 of the Nirvachan Niyam, 1995, and having failed to seek relief of declarations as required under Rule 6 of the Rules of 1995, the Election Petition filed by the petitioner before the Sub Divisional Officer (R) seeking relief of re-counting of votes alone was not maintainable. (Para 3, 15) Dharmin Bai Kashyap Vs. Babli Sahu & Others: 2023 STPL(Web) 178 SC

Civil Procedure Code, 1908, Order 7 Rule 11 – Representation of People Act,1951, Sections 80, 80A, 81, 83(1)(c), 84 read with Sections 100(1)(d)(iv) and 101 – Election Petition – Rejection of petition – Prayer for –Ground that it lacks material particulars and is in violation of mandatory requirements of law – Whether the election petition is liable to be dismissed by allowing the Order 7 Rule 11application for non-compliance of Section 83(1)(c) of the Act–Held that the requirement to file an affidavit under the proviso to Section 83(1)(c) is not mandatory – It is sufficient if there is substantial compliance. As the defect is curable, an opportunity may be granted to file the necessary affidavit – Election petition contained an affidavit and also a verification – In this very affidavit, the election petitioner has sworn on oath that the paragraphs where he has raised allegations of corrupt practice are true to the best of his knowledge – Though there is no separate and an independent affidavit with respect to the allegations of corrupt practice, there is substantial compliance of the requirements under Section 83(1)(c) of the Act – Held that agree with the conclusion of the High Court that there is substantial compliance of the requirements under Section 83(1)(c) of the Act and this finding satisfies the test laid down by this Court in Siddeshwar case – Even the subsequent decision of this Court in Revanna case supports the final conclusion arrived at by the High Court -Appellant has not made out a case for interfering with the judgment of the High Court – Appeal liable to be dismissed.(Para 14 to 17) Thangjam Arunkumar Vs. Yumkham Erabot Singh & Ors. :2023 STPL(Web) 208 SC

Family

Hindu Succession Act, 1956 (Tamil Nadu Amendment Act, Section 29A  –  Hindu Succession – Coparcery property – What has been explicitly declared by Section 29A, subject to a daughter being unmarried, gets the status of a coparcener –  There is no difficulty in expressing the plaintiff’s position as a coparcenary member – High Court, having examined each one of the relevant circumstances, found that the property is not available partition as of the date of coming into force of Section 29A of the State Amendment and dismissed the appeal –Plaintiff has earned the legal standing of a coparcener cannot, by itself, would be a reason to accept the prayer for partition unless the plaintiff discharges the burden that the partial partition through Exhibit-A3did not affect the coparcenary rights in Schedule-I appended to Exhibit-A3 – The recitals in Exhibit A3 and subsequent deeds demonstrate that the property shown as anorthern boundary to the ‘C’ Schedule is treated as property belonging to the first and second defendant -. The pleadings or evidence is absent to displace the presumption that could be drawn on Defendants 1 and 2 getting exclusive ownership of the suit schedule property as a signatory to Exhibit-A3 whether they could be allowed to lead evidence contrary to the recitals in a registered deed – The plaintiff failed to discharge the burden -The findings of the facts recorded do not warrant interference – Plaintiff still failed to demonstrate that the plaint schedule continued to be a coparcenary available for partition – Finding given by High Court upheld. (Para 13, 15 and 16) H. Vasanthi Vs. A. Santha (Dead) Through Lrs. And Others :2023 STPL(Web) 180 SC

Labour Law

Employee’s Compensation Act, 1923, Section 4, 30 – Employee  Compensation – Relationship between the death and the work – It was noticed in the order passed by the Commissioner that, the employer admitted that the deceased was employed as a driver and he was on duty from Delhi to Baroda on 15.09.2003 – The wages being paid to him were also admitted – With these facts on records, the Commissioner accepted the application and assessed the compensation at ₹3,26,140/– Accepting the appeal filed by Insurance Company the view of the High Court was that there is no relationship between the death and the work being done by the deceased – Hence, the order of the Commissioner was found to be unsustainable – Held that even if the death had not occurred on account of any accident but the driver was consistently driving the vehicle, there is every reason to assume that long spells of driving was a material contributory factor, if not the sole cause that accelerated his unexpected death at a young age – Such an untoward mishap can reasonably be described as an accident, only attributable to the nature of employment – Impugned order passed by the High Court liable to be set aside – The order of the Commissioner is restored. (Para 8, 10 and 14) Smt. Dariyao Kanwar & Ors. Vs. M/S United India Insurance Co. Ltd. & Anr. : 2023 STPL(Web) 204 SC

Land Acquisition

Land Acquisition Act, Section 4,6, 18, 21 – Land acquisition – Market value – Exemplar – Compensation – Lands comprised in village ‘N’ having been acquired in pursuance of a section 4 notification dated 18th June, 1981, 5 years prior to the acquisition by notification dated 26th June, 1986 – Held that such prior acquisition and compensation paid to the landowners affected by the same acquisition could not have served as a guiding factor for the High Court to determine compensation payable to the appellants – Reference Court as well as the Appellate Court committed errors in determining fair and just compensation payable to the appellants. (Para 5) Kalubhai Khatubhai Etc. Etc.Vs. State of Gujarat & Ors. : 2023 STPL(Web) 179 SC

Land Acquisition Act, Section 4,6, 18, 21 – Land acquisition – Market value – Compensation–Parity – Other affected landowners of village ‘M’ had sought for reference under section 18 of the Act after their lands were acquired for the project – Their lands were also covered by L.A.Q. Case No. 86 of 1985 – The Reference Court allowed the reference by its judgment and award dated 21st March, 2018 and determined market value of the acquired lands @ Rs,4,00,000/- per hectare, being the identical determination made by the Reference Court vide judgment and award dated 10th May, 2007 in case of the appellants – State of Gujarat had accepted the judgment and award dated 21st March, 2018 without carrying the same in appeal and that it also disbursed the amount of compensation payable to the affected landowner (claimants before the Reference Court) in terms thereof – Held that the appellants cannot be worse off than the other affected landowners of the same village, i.e., ‘M’, who have been paid more compensation – It would be fair and just if the appellants are meted equal treatment as the other affected landowners (claimants in Reference Case Nos.61-62 of 2017) – Impugned judgment and order of the High Court liable to be set aside and the judgment and award of the Reference Court dated 10th May, 2007 restored. (Para 6 to 9) Kalubhai Khatubhai Etc. Etc.Vs. State of Gujarat & Ors. : 2023 STPL(Web) 179 SC

Land Acquisition Act, 1894, Section 4, 23(1) – Land acquisition – Guiding principles for determining the market value of the land – Held that determination of market value is the process of predicting an economic event that is assuming a price a willing vendor would offer to a willing purchaser in normal market conditions, but not an event of anxious dealing at arm’s length nor a facade of sale nor fictitious sale brought about in quick succession or otherwise to inflate the market value – For ascertaining the market value of the land, its existing condition, location and user, its proximity to residential, commercial or industrial area etc. are the major factors required to be considered – The size and nature of the lands acquired and size and nature of the lands in respect of which sale instances are produced on record, also would be an important aspects in as much as normally the sale instances of small piece of land cannot form reasonable basis to determine the market value of large chunk of land, unless suitable deductions are made in respect of development charges – How much deductions should be made would depend on the nature of land, its topography, special features and state of its development so as to make it suitable for the purpose for which it is acquired. (Para 8) Baddar Kumar Mehta (Dead) Thr. Lrs. Vs. State of Punjab And Another: 2023 STPL(Web) 182 SC

Constitution of India, Article 136 – Land Acquisition Act, 1894, Section 4, 23(1) – Land acquisition – Market value – Compensation – Tribunal after recording the submissions of the counsels for the parties and recording the sale instances on record, without any further analysis of evidence or discussion, abruptly enhanced the market rates of the acquired lands to almost double the rates at which the compensation was assessed by the Land Acquisition Collector – The said rates have been further enhanced by the High Court to Rs. 3,000/- per marla for all the lands in question – High Court has duly considered all the sale instances in the light of other evidence on record and after duly reasoning out as to why the other sale instances should not be relied upon – The solitary sale instance of shop has rightly been ignored, the other sale instances more germane and relevant of the lands situated in nearby area of the area of acquisition being available on record – High Court in the impugned judgment after applying the ratio of decisions in case of Brig. Sahib Singh Kalha and Ors vs. Amritsar Improvement Trust and Others[AIR (1982) SC 940] and other decisions to the facts of these cases, came to the conclusion that a cut of one third was required to be imposed on the amount of compensation awarded by it – Held that in the impugned judgment of High Court has taken into consideration the relevant factors prescribed under the Act, as interpreted by this Court, the assessment of market value so determined does not warrant any interference of this Court in the appeals under Article 136 of the Constitution of India.(Para 9 to 11 and 15) Baddar Kumar Mehta (Dead) Thr. Lrs. Vs. State of Punjab And Another: 2023 STPL(Web) 182 SC

Land Acquisition Act, 1894, Section 4, 6, 18 and 23 – Land acquisition – Market value – Compensation – Limitation – Consent order – Parties entered into the consent terms on 20.10.1997 after the award under Section 11 was made on 12.01.1996 – Respondent specifically agreed to pay the compensation awarded under Section 11 and take over the vacant and peaceful possession of the lands in question from the appellant – Also agreed to make reference to the District Court, Nashik, for the determination of market value of the said landsas on 17.12.1994 – Held that it did not lie in the mouth of the respondent- Committee to say that the application made by the appellant- trust seeking reference to the District Court, Nashik was beyond the period of limitation prescribed under Section 18 or was not in consonance with the consent terms arrived at between the parties – Since the market value of the lands as on 17.12.1994 which was the reckonable date agreed by the parties, was required to be determined by the District Court, Nashik, making of an application to the Collector seeking a Reference under Section 18 was a sheer procedural formality required to be followed by the appellant – Though the consent terms and the directions of High Court were silent as to within what period the appellant had to make such an application, it was required to be construed that appellant had to make application after it received the compensation awarded under Section 11 and after it handed over possession of the lands, which it did- Reference Court after considering all the legal and factual aspects of the matter had rightly held that the Reference was filed with the Collector within the period of limitation as per the order passed by the High Court – High Court had committed gross error in interfering with the said well-reasoned findings recorded by the Reference Court, and in setting aside the entire award and remanding the matter back to the Reference Court for deciding it afresh – The impugned judgments and orders passed by the High Court being ex facieerroneous liable to be set aside. (Para 7 to 9) Shri Nashik Panchavati Panjarpol Trust & Ors. Vs. Chairman & Anr. :2023 STPL(Web) 198 SC

Land Acquisition Act, 1894, Section 4,6 and 23 – Land acquisition – Compensation –Exemplar – Market value – Deduction of 60 per cent from exemplar –Held that a court, in determining the market value of acquired land as one of the factors, relies on exemplar sale deeds, decides the location/ potentiality of the land sold through a private sale, and compares the nature and neighbourhood of the land acquired – The court is guided by relevant and admissible evidence and practical or pragmatic ways of commercial transactions, suitable adjustment towards deduction for development charges and developed area – Reference Court relied on Ex. P-4/3 dt. 13.08.2008. Ex. P-4/3 is in respect of land situated in Village Malpura – The Sec. 4(1) Notification is dt. 13.05.2010. Ex. P-4/3 is anterior in point of time, and the extent of land is 12 Kanal 2 Marlas, which cannot be treated as a small residential or commercial plot – Reference Court determined compensation after deducting 60 per cent towards development – High Court has rightly disagreed with the approach of the Reference Court – But the High Court failed by arriving at a market value of Rs. 1,21,33,320/- without factoring in an applicable deduction – Held that Ex P-2 and P-4/3 are not appropriate exemplars to rely on and are taken into consideration for appreciating the upward increase in market value in the subject village.(Para 13 and 14) Besco Limited Vs. State Of Haryana & Others : 2023 STPL(Web) 201 SC

Land Acquisition Act, 1894, Section 4,6 and 23 – Land acquisition – Market value – Compensation – Deduction of 60 per cent from exemplar – Challenge as to – Findings of fact recorded both by the Reference Court and the High Court that as on the date of acquisition, the lands under acquisition were having CLU certificate under Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963 – The land under acquisition cannot be completely treated as agricultural land, and at the same time, the land cannot also be treated as forming part of a developed or approved layout – The land has been in the hands of the landowners for industrial use, and therefore, the applicable deduction to the cases on hand could be 33 per cent.(Para 14) : Besco Limited Vs. State Of Haryana & Others : 2023 STPL(Web) 201 SC

Land Acquisition Act, 1894, Section 4,6 and 23 – Land acquisition – Exemplar – Market value – Deduction of 60 per cent from exemplar – Land values in Malpura Village as evidenced in Ex. P-Y dt. 15.02.2010 are increasing – Ex P-Y has been brought on record as additional evidence before the High Court – The sale consideration in P-Y is Rs. 1,42,62,445/- for 5 Kanal, 2 Marla, per acre works out to Rs. 2,23,72,463. Ex. P-Y dt. 15.02.2010 is immediately preceding Sec. 4(1) Notification dt. 13.05.2010 – Held that reliance placed on Ex. P-Y and is an applicable exemplar for determining the market value of the land under acquisition – The acquired lands are not shown or established as agricultural land – Admittedly, substantial portions of the land under acquisition is abutting the National Highway No. 8 – The area, even by the date of acquisition, is developed with industries in the proximity and has good potential for industrial use – CLU certificate discharges the initial burden of establishing that the land under acquisition is not agricultural land –Held that the Standard deduction 1/3 on exemplar value liable to be applied – Not persuaded to factor incremental increase on the exemplar in as much as the time gap between Ex. P-Y and Sec. 4(1) Notification is brief – Assessed as above, the market value payable to 1 acre in Malpura village is arrived as follows: 2,23,72,463 x 1/3 = Rs. 74,57,488/- – 2,23,72,463 – 74,57,488 = Rs. 1,49,14,975/- (Para 15 and 16) Besco Limited Vs. State Of Haryana & Others : 2023 STPL(Web) 201 SC

Land Acquisition Act, 1894, Section 4,6 and 23 – Land acquisition – Compensation – Exemplar – Market value – Belting of area – Incremental value – The subject lands are acquired under one notification and the plan brought on record evidences the location and proximity to development in and around the acquired land –Held that the belting of area for valuation would be incorrect and the argument of the State rejected – Since incremental value on the exemplar not applied, deem it just to determine uniform market value to the lands under acquisition – Appeals allowed in part and the market value determined at Rs. 1,49,14,975/- per acre for the acquired lands with standard statutory benefits. (Para 17 and 18) Besco Limited Vs. State Of Haryana & Others : 2023 STPL(Web) 201 SC

Service Law

Fundamental Rules, 1922, (as amended by Fundamental (Amendment) Rules, 2018), Rule 56(bb) – CCRAS Bye- Laws, Clauses 25(b), 34, 35 and 47 – Service Law – Age of superannuation – Classification – Claim by employees of Council parity in age of superannuation with AYUSH Doctor – Tribunal non-suited respondent No. 1 but High Court directed parity with AYUSH Doctor – Not in dispute that the respondent No. 1 was working as a researcher and the service conditions of a Research Assistant are altogether different compared to the AYUSH Doctor – It is also not in dispute that the method of recruitment of the respondent No. 1 is different compared to that with the AYUSH doctors – As there is a specific provision regarding superannuation in Clause 34 of the Bye-Laws, the rules governing the government services in respect of superannuation are not applicable to the employees of the Council unless it is in accordance with Clause 34 of the Bye-Laws – Respondent No. 1 knew from day one i.e., from the date of his appointment that he was being appointed as a Research Assistant – His service conditions and mode of recruitment are different compared to the AYUSH Doctors – It is a different thing that he might have treated the patients but that by itself would not entitle him to claim that his age of superannuation should be at par with the AYUSH Doctors – High Court misdirected itself saying that the benefit of enhanced age of superannuation can also be granted if the duties performed are the same like AYUSH doctors – Fail to understand how can the Court fix the age of superannuation of an employee saying that he is very much devoted towards his job – The age of superannuation is always governed by statutory rules & other service conditions – Impugned order passed by the High Court held not sustainable in law and the same deserves to be set aside. (Para 26, 37, 48 and 78, 79) Central Council For Research In Ayurvedic Sciences & Anr. Vs. Bikartan Das & Ors. : 2023 STPL(Web) 177 SC

Interpretation of statute – Word ‘or’ ‘and’ – Held that the word “or” ‘and’ is normally disjunctive and the word “and” is normally conjunctive – Both of them can be read as vice-versa, but that interpretation is adopted only where the intention of the legislature is manifest. (Para 32) Central Council For Research In Ayurvedic Sciences & Anr. Vs. Bikartan Das & Ors. : 2023 STPL(Web) 177 SC

Constitution of India, Article 226 – Exercise of extraordinary jurisdiction – Issue of writ of certiorari – High Court does not exercise the powers of Appellate Tribunal – It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based – It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunal – The writ of certiorari can be issued if an error of law is apparent on the face of the record – A writ of certiorari, being a high prerogative writ, should not be issued on mere asking – Even if some action or order challenged in the writ petition is found to be illegal and invalid, the High Court while exercising its extraordinary jurisdiction thereunder can refuse to upset it with a view to doing substantial justice between the parties – Article 226 of the Constitution grants an extraordinary remedy, which is essentially discretionary, although founded on legal injury – It is perfectly open for the writ court, exercising this flexible power to pass such orders as public interest dictates & equity projects – The legal formulations cannot be enforced divorced from the realities of the fact situation of the case – While administering law, it is to be tempered with equity and if the equitable situation demands after setting right the legal formulations, not to take it to the logical end, the High Court would be failing in its duty if it does not notice equitable consideration and mould the final order in exercise of its extraordinary jurisdiction – Any other approach would render the High Court a normal court of appeal which it is not. (Para 50 and 51) Central Council For Research In Ayurvedic Sciences & Anr. Vs. Bikartan Das & Ors. : 2023 STPL(Web) 177 SC

Constitution of India, Article 226 – Exercise of extraordinary jurisdiction – Issue of writ of certiorari – In terms of a jurisdictional error, want of jurisdiction may arise from the nature of the subject matter so that the inferior court or tribunal might not have the authority to enter on the inquiry – It may also arise from the absence of some essential preliminary or jurisdictional fact – Where the jurisdiction of a body depends upon a preliminary finding of fact in a proceeding for a writ of certiorari, the court may determine, whether or not that finding of fact is correct – The reason is that by wrongly deciding such a fact, the court or tribunal cannot give itself jurisdiction. (Para 57) Central Council For Research In Ayurvedic Sciences & Anr. Vs. Bikartan Das & Ors. : 2023 STPL(Web) 177 SC

Constitution of India, Article 226 – Exercise of extraordinary jurisdiction – Issue of writ of certiorari – Errors of law – Held that a writ of certiorari could be issued if an error of law is apparent on the face of the record – To attract the writ of certiorari, a mere error of law is not sufficient – It must be one which is manifest or patent on the face of the record – Mere formal or technical errors, even of law, are not sufficient, so as to attract a writ of certiorari – Such a test should not be applied in a straitjacket formula and may fail because what might be considered by one Judge as an error self-evident, might not be considered so by another Judge. (Para 57 and 60) Central Council For Research In Ayurvedic Sciences & Anr. Vs. Bikartan Das & Ors. : 2023 STPL(Web) 177 SC

Constitution of India, Article 226 – Exercise of extraordinary jurisdiction – Issue of writ of certiorari – Findings of fact – Held that findings of fact based on ‘no evidence’ or purely on surmises and conjectures or which are perverse points could be challenged by way of a certiorari as such findings could be regarded as an error of law – A writ of certiorari is a high prerogative writ and should not be issued on mere asking – For the issue of a writ of certiorari, the party concerned has to make out a definite case for the same and is not a matter of course – To put it pithily, certiorari shall issue to correct errors of jurisdiction, that is to say, absence, excess or failure to exercise and also when in the exercise of undoubted jurisdiction, there has been illegality – It shall also issue to correct an error in the decision or determination itself, if it is an error manifest on the face of the proceedings – By its exercise, only a patent error can be corrected but not also a wrong decision. (Para 63 and 64) Central Council For Research In Ayurvedic Sciences & Anr. Vs. Bikartan Das & Ors. : 2023 STPL(Web) 177 SC

Constitution of India, Article 226 – Exercise of extraordinary jurisdiction – Issue of writ of certiorari – A writ of certiorari, being a high prerogative writ, is issued by a superior court in respect of the exercise of judicial or quasi-judicial functions by another authority when the contention is that the exercising authority had no jurisdiction or exceeded the jurisdiction – It cannot be denied that the tribunals or the authorities concerned in this batch of appeals had the jurisdiction to deal with the matter – However, the argument would be that the tribunals had acted arbitrarily and illegally and that they had failed to give proper findings on the facts and circumstances of the case – We may only say that while adjudicating a writ-application for a writ of certiorari, the court is not sitting as a court of appeal against the order of the tribunals to test the legality thereof with a view to reach a different conclusion – If there is any evidence, the court will not examine whether the right conclusion is drawn from it or not – It is a well-established principle of law that a writ of certiorari will not lie where the order or decision of a tribunal or authority is wrong in matter of facts or on merits. (Para 65) Central Council For Research In Ayurvedic Sciences & Anr. Vs. Bikartan Das & Ors. : 2023 STPL(Web) 177 SC

Constitution of India, Article 226 – Exercise of extraordinary jurisdiction – Issue of writ of certiorari – True purport and meaning of an error apparent on the face of the record – An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record – In all findings on matters of fact and interpretation of law except in cases of defective jurisdiction, the decision of the tribunal must be deemed to be final – It being open to the tribunals to come to one or the other conclusion on the materials before them, it cannot by any means be said that the decisions are incorrect so as to attract the extraordinary jurisdiction for interference by a writ of certiorari – The purpose of certiorari is only to confine the inferior tribunals within their jurisdiction, so as to avoid the irregular exercise, or the non-exercise or the illegal assumption of it and not to correct errors of finding of fact or interpretation of law committed by them in the exercise of powers vested in them under the statute – The accepted rule is that where a Court has jurisdiction it has a right to decide every question which crops up in the case and whether its decision is correct or otherwise, it is bound to stand until reversed by a competent Court.(Para 73, 76 and 77) Central Council For Research In Ayurvedic Sciences & Anr. Vs. Bikartan Das & Ors. : 2023 STPL(Web) 177 SC

Specific Relief Act, 1963, Section 34 – Pension Regulation for the Army, 1961, Regulation 219 – Evidence Act, 1872, Section 114 – Service Law – Legitimacy of marriage – Presumption as to – Pension –  Suits seeking a declaration to the effect that the appellant no. 1 was the legally wedded wife of Late Subedar ‘B’ and the appellants no. 2 and 3are their legitimate children – First wife of Subedar ‘B’ had passed away in the year 1975 -Deceased contracted a marriage with the appellant No. 1 during the subsistence of his marriage with ‘A’ on 21st February, 1981 – Three years down the line, he was discharged from service and granted service pension – The divorce by mutual consent between the deceased and ‘A’ materialized only in November, 1990 -Deceased had approached the respondents for seeking deletion of the name of ‘A’ and for endorsing the name of the appellant No. 1in his Service Book – Respondent No. 2 did include the name of the appellant No. 1 in the Service Book of the deceased, as his wife – Held that the law infers a presumption in favour of a marriage when a man and woman have continuously cohabitated for a long spell and the said presumption is rebuttable and can be rebutted by leading unimpeachable evidence – If the period upto the year 1990 was to be excluded as the marriage between Late Subedar ‘B’ and ‘A’ had got dissolved only on 15thNovember, 1990, fact remains that even thereafter, the deceased had continued to cohabit with the appellant No. 1 for eleven long years, till his demise in the year2001 – The appellant No.1 was the mother of two children born from the relationship with the deceased, namely, appellants Nos.2 and 3 – Appellants No.2 and 3 have been held entitled to the estate of the deceased by virtue of the order passed by the High Court on the Review application moved by them – In the above background, a presumption ought to have been drawn in favour of the validity of the marriage between the deceased and the appellant No. 1, more so, when during his life time, the deceased had approached the respondent authorities for seeking deletion of the name of his previous wife –‘A’ from his service record and for endorsement of the name of the appellant No. 1 therein, which was duly acted upon by the respondents vide letter dated 05th July, 1999 – It is also not in dispute that the ex-wife did not claim any pension from the respondents on the demise of Subedar ‘B’ – Impugned judgment passed by the High Court and passed by the First Appellate Court cannot be sustained and are, accordingly, quashed and set aside – The judgment and decree dated 22nd December, 2007, passed by the learned Civil Judge (Senior Division)restored – The appellant No.1 is held entitled to receive the pension payable on the demise of Late Subedar ‘B’ – As forthe appellants No. 2 and 3, they would be entitled to the said relief till the date they attained the age of 25 years. (Para 20 to 22) Smt. Shiramabai Vs. Captain, Record Officer For O.I.C. Records, Sena Corps Abhilekh, Gaya, Bihar State And Another: 2023 STPL(Web) 188 SC

 Constitution of India, Article 14 and 226 – Service Law – Delay and laches – Illegal appointment – Clim for salary – Held that once the appointment of the appellant had been declared illegal and void ab initio, and was cancelled by the Director of Elementary Education, Assam vide order dated18.10.2001, the appellant could not legally continue in service thereafter, unless that cancellation order was set aside -Order dated18.10.2001 was never challenged by the appellant – Thus, the appellant had no legal right to continue in service, especially when there is no order or letter placed on record by the appellant that she was allowed to continue beyond 31.03.2002 – No claim for payment of salary could be made for any period – Even otherwise , it is difficult to believe that a person has been working for two decades without any salary – Even the writ petition was filed by her in the High Court in the year 2008,claiming salary from 12.03.2001 onwards i.e., seven years later – Do not find any reason to differ with concurrent findings of facts recorded by the High Court – Appeal liable to be dismissed. (Para 7 and 8) Smt. Dulu Deka Vs. State Of Assam & Ors.: 2023 STPL(Web) 197 SC

Constitution of India, Article 14 and 226 – Service Law – Pendency of Criminal Proceedings – Recruitment – Constable – Non issuance of appointment on account of pendency of criminal proceedings – After appreciating the evidence as brought on record, the Court found that the prosecution has hopelessly failed to bring home the guilt and prove the charges under Sections 147/149/447/323/506 of IPC against the respondent – On account of acquittal of the accused persons, the objection regarding pendency of criminal case no more subsists – In addition, on perusal of the prosecution story of the said case, the cause of dispute was of egress and ingress to a passage for which the order of attachment was passed by the Sub-Divisional Magistrate – As alleged, the accused persons started raising fencing which was opposed by the complainant – For the said incident, FIR against eight accused persons including the respondent was registered – In the said judgement, the name of the respondent was shown as “Mridul Jana” and not his correct name, i.e., “Mitul Kumar Jana” – Prosecution has miserably failed to prove the charges – Held that the said allegations do not constitute any offence affecting moral turpitude and shall not cause any impediment for public employment to a candidate who got selected by the due process of law. (Para 8) State Of West Bengal & Ors. Vs. Mitul Kumar Jana: 2023 STPL(Web) 199 SC

Constitution of India, Article 14 and 226 – Service Law – Suppression of material information – Recruitment – Constable – Non issuance of appointment on account of suppression of material information in the verification roll – Information sought was regarding arrest, detention and conviction by a Court in any offence – In case the answer was ‘yes’, then full particulars of the arrest or detention or conviction and sentence were required to be furnished – In case the answer was in the negative, no other particulars were required to be furnished – In the case on hand, in reply to the information asked the respondent gave the answer as “no” – As per the contents of the information sought and as per the answer given by the respondent, he is not required to furnish information regarding pending criminal case – Therefore, supply of such information by the respondent does not fall within the expression ‘suppression of material information’. (Para 10) State Of West Bengal & Ors. Vs. Mitul Kumar Jana: 2023 STPL(Web) 199 SC

State Bank of India (Supervising Staff) Service Rules, Rule 49 (e) –Service Law – Penalty – Specific charge was with regard to a series of named units, periodical inspections were not carried out – Presenting Officer produced the inspection register for the relevant period for perusal of the Enquiry Officer and the defence representative – On this, the defence representative stated that they would respond, after going through the documents – In the written submissions filed, a grievance is raised that the records pertaining to inspection were produced at the fag end of the enquiry – No response was forthcoming – Neither from the records nor at the hearing has it been demonstrated as to how the charge of failure to conduct the inspection was countered by the respondent – The records sought being made available, the onus did shift to the respondent to show that the charge was untenable – Held that clearly with regard to the first limb of the first charge it cannot be said that the finding of the Enquiry Officer is on a mis-reading of the evidence or that the records of the inspection of units were part of the records that could be possibly misplaced or that a finding was based on some stray sentence and personal knowledge was imported by the Enquiry Officer de hors the record. (Para 24 and 25) State Bank Of India Vs. A.G.D. Reddy :2023 STPL(Web) 211 SC

State Bank of India (Supervising Staff) Service Rules, Rule 49 (e) – Service Law – Penalty – Charge regarding formalities for creation of equitable mortgage – Clear from the deposition that the applicant for the loan had offered collateral security in the form of land and building and that the formality of collateral security was not taken. It is further borne out that it is the Field Officer in consultation with the Branch Manager who has to fix the credit limit and the stipulations – It appears from the records that no stipulation was put with regard to equitable mortgage so mentioned with regard to M/s Saraswathi Fabricators, even though the party had offered equitable collateral security in the form of immovable property – The explanation of the respondent is only that there was no stipulation in the sanction order with regard to the taking of collateral security – The evidence of PW-4 is that the stipulation for collateral security is so made by the Field Officer in consultation with the Branch Manager – Held that the finding of the Enquiry Officer that the respondent, by his negligence, did not stipulate this in his recommendation to the Branch Manager and, as such, the advance could not be collaterally secured by creation of equitable mortgage cannot be said to be perverse or based on no evidence -There was material on record for the appellant to pass the order of penalty (Para 26 to 31) State Bank Of India Vs. A.G.D. Reddy :2023 STPL(Web) 211 SC

Constitution of India, Article 226 – Service Law – Judicial review – Penalty–  Held that scope of judicial review against a departmental enquiry proceeding is very limited – It is not in the nature of an appeal and a review on merits of the decision is not permissible – The scope of the enquiry is to examine whether the decision-making process is legitimate and to ensure that the findings are not bereft of any evidence – If the records reveal that the findings are based on some evidence, it is not the function of the court in a judicial review to re-appreciate the same and arrive at an independent finding on the evidence – This lakshman rekha has been recognized and reiterated in a long line of judgments of this Court – In the present case, it could certainly not be said that the report is based on no evidence or that it is perverse – The learned Single Judge transgressed the limits of judicial review in setting aside the enquiry proceedings and the punishment imposed – Division Bench, in a short order has, after extracting a part of the learned Single Judge’s judgment, gone on to hold that having perused the records of the enquiry they do not find that the charges have been dealt with in any manner of specificity and concluded that the learned Single Judge was justified in arriving at its conclusion – Held that not able to sustain the orders of the learned Single Judge and the Division Bench – Severability of charges if in a disciplinary proceeding, the order of penalty can be imposed on the charges proved and the punishment imposed is lawfully sustainable on those charges, it is not for the Court to consider whether those grounds alone would have weighed with the authority in imposing the punishment. (Para 36 to 39) State Bank Of India Vs. A.G.D. Reddy :2023 STPL(Web) 211 SC

Constitution of India, Article 226 – Service Law – Quantum of punishment – Penalty -Judicial review –- Does the penalty-imposed shock the conscience of the Court? – The penalty imposed in this case is “reduction in basic pay to the lowest stage in Scale-I” as envisaged under Rule 49 (e) of the Rules and further, to treat the period spent by the delinquent officer under suspension from 18.08.1990 till the date of his reinstatement as suspension only – Held that since the charge of not conducting periodical inspection and the failure to complete the formalities for creating equitable mortgage with regard to M/s Saraswathi Fabricators are supported by evidence, do not think that the penalty as imposed is disproportionate so as to shock the conscience of the Court -Penalty as imposed in the order of the Appointing Authority dated 31.01.1995 and as confirmed by the Appellate Authority maintained -Both the learned Single Judge and the Division Bench were in error in allowing the writ petition and interfering with the findings of the Enquiry Officer, the decision of the Disciplinary Authority, the order of the Appointing Authority and the decision of the Appellate Authority -Order of the learned Single Judge and that of the Division Bench liable to be set aside and the Writ Petition filed by the respondent liable to be dismissed. (Para 40 and 41) State Bank Of India Vs. A.G.D. Reddy :2023 STPL(Web) 211 SC

Kerala Service Rules, Rule 60 (a) or 60 (c) Part (I) – Constitution of India, Article 14, 226 – Service Law – Age of retirement – Policy decision – Teaching faculty in Homeopathic Medical Colleges – Discrimination – Doctrine of Legitimate Expectation – Retirement age of Doctors in the Medical category under the Medical Education Service raised from 55 years to 60 years with retrospective effect from 1st May, 2009 – The prayer of teaching faculty in Homeopathic Medical Colleges was not granted – Held that the age of retirement is purely a policy matter that lies within the domain of the State Government – It is not for the courts to prescribe a different age of retirement from the one applicable to Government employees under the relevant service Rules and Regulations – Nor can the Court insist that once the State had taken a decision to issue a similar Government Order that would extend the age of retirement of the staff teaching in the Homeopathic Colleges as was issued in respect of different categories of teaching staff belonging to the Dental stream and the Ayurvedic stream, the said G.O. ought to have been made retrospective, as was done when G.O. dated 14th January, 2010 was issued by the State and given retrospective effect from 1st May, 2009 – These are all matters of policy that engage the State Government – It may even elect to give the benefit of extension of age to a particular class of Government employees while denying the said benefit to others for valid considerations that may include financial implications, administrative considerations, exigencies of service, etc.(Para 11) Dr. Prakasan M.P. And Others Vs. State Of Kerala And Another: 2023 STPL(Web) 217 SC

Kerala Service Rules, Rule 60 (a) or 60 (c) Part (I) – Constitution of India, Article 14, 226 – Service Law – Age of retirement – Policy decision – Teaching faculty in Homeopathic Medical Colleges – Discrimination – Doctrine of Legitimate Expectation – After the respondent No.1 – State Government issued three successive G.Os extending the age of retirement of the members of the Dental Faculties, Ayurvedic Faculties and Homeopathic Faculties from 55 years to 60 years, the insistence on the part of the appellants that these G.Os ought to be given retrospective effect, even though there was no clause to that effect inserted therein, cannot be countenanced – Such a decision lies exclusively within the domain of the Executive – It is for the State to take a call as to whether the circumstances demand that a decision be taken to extend the age of superannuation in respect of a set of employees or not – It must be assumed that the State would have weighed all the pros and cons before arriving at any decision to grant extension of age – As for the aspect of retrospectivity of such a decision, whatever may be the cut-off date fixed by the State Government, some employees would always be left out in the cold – But that alone would not make the decision bad; nor would it be a ground for the Court to tread into matters of policy that are best left for the State Government to decide – The appellants herein cannot claim a vested right to apply the extended age of retirement to them retrospectively and assume that by virtue of the enhancement in age ordered by the State at a later date, they would be entitled to all the benefits including the monetary benefits flowing from G.O. dated 9th April, 2012, on the ground of legitimate expectation – The Doctrine of Legitimate Expectation does not have any role to play in matters that are strictly governed by the service regulations – This is an exercise that is undertaken by the State in discharge of its public duties and should not brook undue interference by the Court – Impugned judgment upheld. (Para 16 to 20) Dr. Prakasan M.P. And Others Vs. State Of Kerala And Another: 2023 STPL(Web) 217 SC

Service Law – Temporary Post – Termination – Continuation in service on strength of interim order – Promotion – Appeal against High Court Division bench order reversing single judge order of providing relief to employee – Held: Petitioner was appointed simply as a temporary Collection Peon and his services were determined simpliciter within three years. The said order, terminating the services of the petitioner, is final and conclusive. It has not been disturbed by any court of law. However, the petitioner continued to function as temporary Collection Peon on the strength of an interim order passed in Special Appeal which was ultimately dismissed. Therefore, any promotion given to the petitioner consequent to his continuance in service on the strength of the interim order would automatically fall to the ground once the Special Leave Petition is dismissed and the termination order attains finality.

The Division Bench has rightly set aside the judgment and order of the learned Single Judge by which the writ petition was allowed in complete ignorance of the fact that the services of the petitioner stood determined long back and that the petitioner is not entitled to any benefit on the basis of his subsequent promotion which automatically falls with the termination attaining finality. (Para 11, 12) Jagpal Singh Vs. State Of U.P. & Ors. :2023 STPL(Web) 220 SC

Taxation

Income Tax Act, 1961, Section2(14) – Income tax – Interest income on bank deposit of club – Principle of mutuality – Whether the deposit of surplus funds by the appellant Clubs by way of bank deposits in various banks is liable to be taxed in the hands of the Clubs or, whether, the principle of mutuality would apply and the interest earned from the deposits would not be subject to tax under the provisions of the Act, 1961 – Interest generated on the fixed deposits or investment made is a commercial activity, thereby permitting the bank to utilize the fixed deposit amount for its banking business and derive profits from the said banking business by way of lending the amount for a higher rate of interest while paying a lower rate of interest on the fixed deposit made by the club – Thus, identicality between the contributors to the common fund and the participators in it which is a sine qua non for the application of the principle of mutuality would get ruptured – When surplus funds of a club are invested as fixed deposits in a bank and the bank has a right to utilize the said fixed deposit amounts for its banking business subject to repayment of the principal along with interest, then, the identity is lost. – When the facilities of a club are extended to the members of the club who contribute towards the income generated by the club, there is an identity between the contributors and the recipients and, therefore, the principle of mutuality would apply -However, if the same facilities of the club are offered to non-members or to the public for the purpose of earning an additional income, then, it is in the nature of a commercial transaction and thus becomes a profitable venture. In such a case, the principle of mutuality would not apply – Held that the interest income earned on fixed deposits made in the banks by the appellant Clubs has to be treated like any other income from other sources within the meaning of Section 2(24) of Act, 1961 – Conversely, if any income is earned by the Clubs through its assets and resources, from persons who are not members of the Clubs, such income would also not be covered under the principle of mutuality and would be liable to be taxed under the provisions of the Income Tax Act. (Para 35, 36, 43) Secundrabad Club Etc. Vs. C.I.T.-V Etc.: 2023 STPL(Web) 183 SC

Whether the judgment of this Court in Bangalore Club would call for reconsideration in light of the “Order” of this Court in Cawnpore Club? Held that Bangalore Club does not call for reconsideration and that the said judgment holds the field would squarely apply to these appeals also – Consequently, the appeals liable to be dismissed. (Para 43) Secundrabad Club Etc. Vs. C.I.T.-V Etc.: 2023 STPL(Web) 183 SC

Principle of mutuality – Income tax law – Held that principle of mutuality is rooted in common sense – A person cannot make a profit from herself – This implies that a person cannot earn profit from an association that he shares a common identity with – The essence of the principle lies in the commonality of the contributors and the participants who are also beneficiaries – There has to be a complete identity between the contributors and the participants – Therefore, it follows, that any surplus in the common fund shall not constitute income but will only be an increase in the common fund meant to meet sudden eventualities. (Para 8.1) Secundrabad Club Etc. Vs. C.I.T.-V Etc.: 2023 STPL(Web) 183 SC

Principle of mutuality – Triple test for applying the principle of mutuality envisages: (i) Complete identity between the contributors and participators; (ii) Action of the participators and contributors must be in furtherance of the mandate of the associations or the Clubs. The mandate of the Club is a question of fact which has to be determined from the Memorandum or Articles of Associations, Rules of Membership, Rules of the Organisation, etc., which must be construed broadly. (iii) There must be no scope for profiteering by the contributors from a fund made by them which could only be expended or returned to themselves. (Para 29, 31) Secundrabad Club Etc. Vs. C.I.T.-V Etc.: 2023 STPL(Web) 183 SC

Constitution of India, Article 141 – Precedent – Ratio decidendi – Held that only the ratio decidendi of a judgment is binding as a precedent – The legal principles guiding the decision in a case is the basis for a binding precedent for a subsequent case, apart from being a decision which binds the parties to the case – Thus, the principle underlying the decision would be binding as a precedent for a subsequent case – Therefore, while applying a decision to a later case, the court dealing with it has to carefully ascertain the principle laid down in the previous decision – A decision in a case takes its flavour from the facts of the case and the question of law involved and decided – However, a decision which is not express and is neither founded on any reason nor proceeds on a consideration of the issue cannot be deemed to be law declared, so as to have a binding effect as is contemplated under Article 141of the Constitution – If a decision is on the basis of reasons stated in the decision or judgment, only the ratio decidendi is binding – The ratio or the basis of reasons and principles underlying a decision is distinct from the ultimate relief granted or manner of disposal adopted in a given case – It is the ratio decidendi which forms a precedent and not the final order in the judgment, -Therefore, the decision applicable only to the facts of the case cannot be treated as a binding precedent. (Para 16 and 17) Secundrabad Club Etc. Vs. C.I.T.-V Etc.: 2023 STPL(Web) 183 SC

Constitution of India, Article 141 – Precedent – Ratio decidendi – Obiter dictum –The doctrine of binding precedent helps in promoting certainty and consistency in judicial decisions and enables an organic development of the law besides providing assurance to individuals as to the consequences of transactions forming part of daily affairs – Thus, what is binding in terms of Article 141 of the Constitution is the ratio of the judgment – Ratio decidendi of a judgment is the reason assigned in support of the conclusion – The reasoning of a judgment can be discerned only upon reading of a judgment in its entirety and the same has to be culled out thereafter – The ratio of the case has to be deduced from the facts involved in the case and the particular provision(s) of law which the court has applied or interpreted and the decision has to be read in the context of the particular statutory provisions involved in the matter – An order made merely to dispose of the case cannot have the value or effect of a binding precedent – As against the ratio decidendi of a judgment, an obiter dictum is an observation by a court on a legal question which may not be necessary for the decision pronounced by the court – However, the obiter dictum of the Supreme Court is binding under Article 141 to the extent of the observations on points raised and decided by the Court in a case – Although the obiter dictum of the Supreme Court is binding on all courts, it has only persuasive authority as far as the Supreme Court itself is concerned. (Para 18 to 20) Secundrabad Club Etc. Vs. C.I.T.-V Etc.: 2023 STPL(Web) 183 SC

Companies Act, 1956, Section 467, 468, 529A and 530–Companies Act, 2013, Sections 456 and 447 – Customs Act, 1962, Section 15, 47, 59(1), 68. 61, 72 and 142 – Companies (Court) Rules, 1959, with Rules 9 and 11(b) – Winding up order – Payment of custom duty – First right of customs authorities to sell the imported goods under the Act, 1962 and adjust the sale proceeds towards payment of customs duty – Challenge as to –Held that Sections 61, 72 and 142 of the Act, 1962 do not incorporate a statutory first charge to override the general law – The provisions of the land revenue enactment applicable in the present case have not been relied upon by the respondents, in which event, a legal issue relating to conflict of laws would have arisen and required an answer – The provisions in the Customs Act do not, in any manner, negate or override the statutory preference in terms of Section 529A of the Companies Act, which treats the secured creditors and the workmen’s dues[As defined and payable in terms of Section 529(3)(b) of the Companies Act.]as overriding preferential creditors; and the government dues limited to debts ‘due and payable’ in the twelve months next before the relevant date, which are to be treated as preferential payments under Section 530 of the Companies Act, but are ranked below overriding preferential payments and have to be paid after the payment has been made in terms of Section 529and 529A of the Companies Act – Therefore, the prior secured creditors are entitled to enforce their charge, notwithstanding the government dues payable under the Customs Act – Impugned judgment liable to be set aside – Company Application filed by the Official Liquidator in Company Petition will be treated as allowed – The sale proceeds deposited in this Court and converted into fixed deposit receipts, along with the interest accrued thereon, will be paid to the Official Liquidator to be distributed in accordance with the provisions of Sections 529A and 530 of the Companies Act. (Para 24 to 28) Industrial Development Bank of India Vs. Superintendent of Central Excise And Customs And Others 2023 STPL(Web) 187 SC

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