Supreme Court Weekly Round-Up/Digest With Nominal And Subject/Statute Wise Index- March 14 to 20

Code of Civil Procedure, 1908; Order VII Rule 11 - Rejection of Plaint - While considering an application under Order VII Rule 11 CPC, the Court has to go through the entire plaint averments and cannot reject the plaint by reading only few lines/passages and ignoring the other relevant parts of the plaint - Only in a case where on the face of it, it is seen that the suit is barred by limitation, then and then only a plaint can be rejected - The plaint cannot be rejected partially. (Para 7,7.1. 7.4) 2022 LiveLaw (SC) 280

Code of Civil Procedure, 1908; Order XXXIX - Interim injunctions - While considering the question of grant of interim injunction, the courts are required to consider the three tests of prima facie case, balance of convenience and irreparable injury .(Para 36) 2022 LiveLaw (SC) 282

Code of Criminal Procedure, 1973; Section 190 (1)(b) - Appeal against High Court judgment which upheld the order passed by Magistrate summoning the appellant who was not named in police report - Dismissed - The name of the accused/appellant had transpired from the statement made by the victim under Section 164 CrPC - No error in the order of the Magistrate. 2022 LiveLaw (SC) 291

Code of Criminal Procedure, 1973; Section 190 (1)(b) - For summoning persons upon taking cognizance of an offence, the Magistrate has to examine the materials available before him for coming to the conclusion that apart from those sent up by the police some other persons are involved in the offence. These materials need not remain confined to the police report, charge sheet or the F.I.R. A statement made under Section 164 of the Code could also be considered for such purpose. (Para 21) 2022 LiveLaw (SC) 291

Code of Criminal Procedure, 1973; Section 190 (1)(b) - Jurisdiction to issue summons can be exercised even in respect of a person whose name may not feature at all in the police report, whether as accused or in column (2) thereof if the Magistrate is satisfied that there are materials on record which would reveal prima facie his involvement in the offence. (Para 20) 2022 LiveLaw (SC) 291

Code of Criminal Procedure, 1973; Section 362 - Appeal against High Court order which recalled an order passed by it in a criminal case - Dismissed - This application for recall of the order was maintainable as it was an application seeking a procedural review, and not a substantive review. 2022 LiveLaw (SC) 283

Code of Criminal Procedure, 1973; Section 362 - Application for recall of the order maintainable when it is an application seeking a procedural review, and not a substantive review. 2022 LiveLaw (SC) 283

Constitution of India, 1950 ; Article 32, 226 - Judicial Review in policy matters - Most questions of policy involve complex considerations of not only technical and economic factors but also require balancing competing interests for which democratic reconciliation rather than adjudication is the best remedy. Further, an increased reliance on judges to solve matters of pure policy diminishes the role of other political organs in resolving contested issues of social and political policy, which require a democratic dialogue. This is not to say that this Court will shy away from setting aside policies that impinge on constitutional rights. Rather it is to provide a clear-eyed role of the function that a court serves in a democracy. (Para 46) 2022 LiveLaw (SC) 289

Constitution of India, 1950; Article 226 - Tender Jurisdiction - Interim order- disapprove and deprecate the grant of interim relief virtually allowing the writ petitions at an interim stage - If by way of interim relief, a tenderer/petitioner is permitted to participate in the tender process without insisting upon the tender clause which was under challenge and subsequently the writ petition is dismissed what would be the consequences. 2022 LiveLaw (SC) 295

Constitution of India, 1950; Article 233,235 - The High Courts are well within their domain in prescribing a requirement which ensures that candidates with sufficient maturity enter the fold of the higher judiciary. The requirement that a candidate should be at least 35 years of age is intended to sub-serve this - The Constitution does not preclude the exercise of the rule making power by the High Courts to regulate the conditions of service or appointment - Age is not extraneous to the acquisition of maturity and experience, especially in judicial institutions which handle real problems and confront challenges to liberty and justice. (Para 26) 2022 LiveLaw (SC) 286

Constitution of India, 1950; Article 311(2) - Judicial Service- When the Government had, on enquiry, come to the conclusion, rightly or wrongly, that the appellant was unsuitable for the post he held on probation, this was clearly by way of punishment and, hence, the appellant would be entitled to the protection of Article 311(2) of the Constitution. (Para 50) 2022 LiveLaw (SC) 284

Court Fees Act, 1870; Section 7 - Once the suit in question is a money suit for compensation and damages falling under clause (i) of Section 7 of the Act, ad valorem Court-fees would be payable on the amount claimed - It is only with respect to the category of suits specified in clause (iv) of Section 7 of the Act that the plaintiff has the liberty of stating in the plaint the amount at which relief is valued and Court-fees would be payable on the said amount. (Para 21) 2022 LiveLaw (SC) 292

Criminal Trial - Sentencing - Appellant convicted under Section 376,363,366, 307, 354 and sentenced to life imprisonment sought modification of sentence- Sentenced to a term of 15 years' imprisonment - Appellant has undergone actual imprisonment for a period of 11 years as on date - The ends of justice would be met by directing that instead and in place of the sentence of life imprisonment which has been imposed for the conviction under Section 376, the appellant shall stand sentenced to a term of 15 years' imprisonment. 2022 LiveLaw (SC) 288

Criminal Trial - Sentencing - In determining the quantum of sentence, the Court must bear in mind the circumstances pertaining to the offence and all other relevant circumstances including the age of the offender - The principles of restorative justice find place within the Indian Constitution and severity of sentence is not the only determinant for doing justice to the victims. 2022 LiveLaw (SC) 288 (Para 7, 8)

Customs Act, 1962; Sections 87,130(2), 130E(b) - Dispute concerning an exemption cannot be equated with a dispute in relation to the rate of duty - Whether the assessee is entitled to exemption as claimed or not, such an issue cannot be said to be an issue relating, amongst other things, to the determination of any question having relation to the rate of duty. (Para 4) 2022 LiveLaw (SC) 293

Customs Act, 1962; Sections 87,130(2), 130E(b) - SLP against High Court order which rejected preliminary objection to the appeal filed by Revenue holding that the principal question in the present case is, not in relation to the rate of duty but determining whether, vessel AE, is a foreign­ going vessel or not and if the vessel AE is a foreign ­going vessel, whether Section 87 of the Act would be applicable or not - Dismissed - With respect to such an issue, against the order passed by the CESTAT, the appeal would be maintainable before the High Court under Section 130 of the Act. 2022 LiveLaw (SC) 293

Evidence Act, 1872; Sections 45, 47, 73 - Appeal against Orissa High Court judgment which quashed the order taking cognizance passed by the Sub-Divisional Judicial Magistrate, under Sections 467 and 471 of the Indian Penal Code, on the ground that the opinion of the handwriting expert on the disputed signatures was non-conclusive - Allowed. 2022 LiveLaw (SC) 297

Evidence Act, 1872; Sections 45, 47, 73 - Opinion of the handwriting expert is not the only way or mode of providing the signature and handwriting of a person - The signatures and handwriting of the person can also be proved under Sections 45, 47 and 73. 2022 LiveLaw (SC) 297

Judicial Service - Appeal against High Court judgment which upheld discharge of a judicial officer - Allowed - Charges filed against the appellant are vague in nature and that absolutely no details have been provided regarding the said allegation of passing the bail order for extraneous considerations/ ulterior motive - Even if appellant's act is considered to be negligent, it cannot be treated as "misconduct" - The appellant be reinstated with all consequential benefits including continuity of service and seniority, but will be entitled to be paid only 50% backwages, which may be paid within a period of four months. 2022 LiveLaw (SC) 284

Judicial Service - Delhi Higher Judicial Service - In order to obviate any further litigation and uncertainty, we permit the High Court as a one-time measure to allow those candidates who were within the age cut-off of 45 years during the recruitment years 2020 and 2021 to participate in the ensuing DHJS examinations. (Para 29) 2022 LiveLaw (SC) 286

Judicial Service - Delhi Higher Judicial Service - The deletion of the minimum age requirement of 35 years in 2019 may have been guided by the need to attract a larger pool of applicants to DHJS. But the reinstatement of a minimum age requirement of 35 years is a matter of policy. This conforms to the recommendation of the Shetty Commission. (Para 27) 2022 LiveLaw (SC) 286

Judicial Service - Discharge of Judicial Officer - Negligence cannot be treated to be misconduct - Relief-oriented judicial approaches cannot by themselves be grounds to cast aspersions on the honesty and integrity of an officer- Every judicial officer is likely to commit mistake of some kind or the other in passing orders in the initial stage of his service, which a mature judicial officer would not do. However, if the orders are passed without there being any corrupt motive, the same should be over-looked by the High Court and proper guidance should be provided to him. (Para 69, 54) 2022 LiveLaw (SC) 284

Legitimate Expectation - A facet of Article 14 of the Constitution - The doctrine of legitimate expectations can be invoked if a representation made by a public body leads an individual to believe that they would be a recipient of a substantive benefit. [Referred to State of Jharkhand v. Brahmputra Metallics Ltd., Ranchi 2020 SCC OnLine SC 968 ] (Para 26) 2022 LiveLaw (SC) 289

Letters Patent (Calcutta High Court); Clause 15 - Appeal against Division Bench order of the Calcutta High Court which allowed Letters Patent appeal against a Single Judge order which directed defendants to file affidavit­ in ­opposition and postponed the hearing of the application seeking injunction - Allowed - Though by postponement of the issue with regard to grant of ad­ interim injunction, the order might have caused some inconvenience and may be, to some extent, prejudice to the plaintiff; the same could not be treated as a 'judgment' inasmuch as there was no conclusive finding as to whether the plaintiff was entitled for grant of ad­ interim injunction or not. As such, the order passed by the Single Judge did not contain the traits and trappings of finality - The appellate court cannot usurp the jurisdiction of the Single Judge to decide as to whether the tests of prima facie case, balance of convenience and irreparable injury are made out in the case or not. 2022 LiveLaw (SC) 282

Letters Patent (Calcutta High Court); Clause 15 - Whether an order impugned would be a 'judgment' within the scope of Clause 15 of Letters Patent, would depend on facts and circumstances of each case - For such an order to be construed as a 'judgment', it must have the traits and trappings of finality - It must affect vital and valuable rights of the parties, which works serious injustice to the party concerned. Each and every order passed by the Court during the course of the trial, though may cause some inconvenience to one of the parties or, to some extent, some prejudice to one of the parties, cannot be treated as a 'judgment'. If such is permitted, the floodgate of appeals would be open against the order of Single Judge. 2022 LiveLaw (SC) 282

One Rank One Pension - No constitutional infirmity in the OROP principle as defined by the communication dated 7 November 2015 - The definition of OROP is uniformly applicable to all the pensioners irrespective of the date of retirement - The cut-off date is used only for the purpose of determining the base salary for the calculation of pension- Varying pension payable to officers of the same rank retiring before and after 1 July 2014 either due to MACP or the different base salary used for the calculation of pension cannot be held arbitrary. (Para 49) 2022 LiveLaw (SC) 289

Penal Code, 1860; Section 34 - Appeal against concurrent conviction of appellant by invoking Section 34 IPC - Allowed - The prosecution has failed to prove ingredients of Section 34 of IPC in this case - non­ examination of two crucial eye witnesses makes the prosecution case about the existence of a prior concert and pre­arranged plan extremely doubtful. 2022 LiveLaw (SC) 287

Penal Code, 1860; Section 34 - Common intention pre­supposes prior concert. It requires meeting of minds, a pre­arranged plan before a man can be vicariously convicted for the criminal act of another. The criminal act must have been done in furtherance of the common intention of all the accused. In a given case, the plan can be formed suddenly. (Para 9) 2022 LiveLaw (SC) 287

Penal Code, 1860; Sections 403, 415 - Appeal against Allahabad High Court order that refused to quash FIR registered against a tenant under Section 415,403 IPC - Allowed - No criminal offence is made out, even if we accept the factual assertions made in the complaint, which was registered as the First Information Report. 2022 LiveLaw (SC) 281

Penal Code, 1860; Sections 403, 415 - Failure to pay rent may have civil consequences, but is not a penal offence under the Indian Penal Code. 2022 LiveLaw (SC) 281

Practice and Procedure - Ordinarily, before passing any order for expeditious proceedings in a particular case , it would be appropriate for the higher Court to appreciate that any such order for one case, without cogent and extremely compelling reasons, might upset the calendar and schedule of the subordinate Court; might result in assigning an unwarranted priority to that particular case over and above other cases pending in that Court; and progression of such other cases might suffer for no reason and none of the faults of the litigants involved therein. Moreover, such petitions, even when moved before the higher Court, need to be examined from all angles. (Para 4,5) 2022 LiveLaw (SC) 298

Practice and Procedure - Frivolous appeals being filed against unappealable orders wasting precious judicial time - The courts in India are already over­burdened with huge pendency. Such unwarranted proceedings at the behest of the parties who can afford to bear the expenses of such litigations must be discouraged. (Para 37) 2022 LiveLaw (SC) 282

Practice and Procedure - The hierarchy of the trial court and the appellate court exists so that the trial court exercises its discretion upon the settled principles of law. An appellate court, after the findings of the trial court are recorded, has an advantage of appreciating the view taken by the trial judge and examining the correctness or otherwise thereof within the limited area available. If the appellate court itself decides the matters required to be decided by the trial court, there would be no necessity to have the hierarchy of courts. (Para 29) 2022 LiveLaw (SC) 282

Reservation - Vacating earlier interim order, the Court refused to stay the G.O. dated 07.11.2020 issued in the State of Tamil Nadu purporting to reserve 50% seats at the Super Specialty level in Government Medical Colleges to in-service doctors - Expressed a prima facie view that States are competent to provide such reservation. 2022 LiveLaw (SC) 294

Service Law - Appeal against the High Court judgment which upheld the cancellation of appointment of the appellant on the premise of non­disclosure of criminal case being instituted against him in the year 1997, when he was a juvenile - Allowed - the appellant was a juvenile when a criminal case was registered against him and was also a juvenile when the order of discharge was passed - This was indisputedly a special circumstance indeed which was not taken into consideration by the authority while passing the order of cancellation of his appointment - The seriatim of facts cumulatively indicate that the nature of information which was not disclosed by the appellant, in any manner, could be considered to be a suppression of material information. 2022 LiveLaw (SC) 300

Service Law - Pension - principles governing pensions and cut-off dates summarized - All pensioners who hold the same rank may not for all purposes form a homogenous class - The benefit of a new element in a pensionary scheme can be prospectively applied. However, the scheme cannot bifurcate a homogenous group based on a cut-off date- Same principle of computation of pensions must be applied uniformly to a homogenous class - It is not a legal mandate that pensioners who held the same rank must be given the same amount of pension. The varying benefits that may be applicable to certain personnel which would also impact the pension payable need not be equalized with the rest of the personnel. (Para 48) 2022 LiveLaw (SC) 289

Service Law - Regularization - Appeal against High Court order which allowed writ petition filed by few employees claiming parity in date of regularization- Allowed - date of regularization and grant of pay scale is a prerogative of the employer/screening committee and no parity can be claimed in the matter of regularization in different years. 2022 LiveLaw (SC) 296

Service Law - Regularization - The date from which regularization is to be granted is a matter to be decided by the employer keeping in view a number of factors like the nature of the work, number of posts lying vacant, the financial condition of the employer, the additional financial burden caused, the suitability of the workmen for the job, the manner and reason for which the initial appointments were made etc. The said decision will depend upon the facts of each year and no parity can be claimed based on regularization made in respect of the earlier years. (Para 9-12) 2022 LiveLaw (SC) 296

Service Law - Suppression of material information - The candidate who intend to participate in the selection process is required to furnish correct information relating to his character and antecedents in the verification/attestation form before or after his induction into service - The person who has suppressed the material information, cannot claim unfettered right of seeking appointment or continuity in service but, at the same time, he has a right not to be dealt with arbitrarily and power has to be exercised in reasonable manner with objectivity having due regard to the facts of case on hand. The yardstick which has to be applied always depends upon the nature of post, nature of duties, impact of suppression on suitability has to be considered by the competent authority considering post/nature of duties/services and power has to be exercised on due diligence of various aspects at the given time and no hard and fast rule of thumb can be laid down in this regard. (Para 15) 2022 LiveLaw (SC) 300

Service Law - The manner in which and the period over which revisions should take place of pensions, salaries and other financial benefits is a pure question of policy. (Para 37) 2022 LiveLaw (SC) 289

Service Law - The prescription of a rule providing for a minimum age requirement or maximum age for entry into service is essentially a matter of policy - Determination of cut-offs lies in the realm of policy. (Para 25) 2022 LiveLaw (SC) 286

Service Rules (Kerala); Rule 3 and 3A- Death Cum Retirement Gratuity - The pendency of the appeal cannot disentitle the State from withholding the DCRG - Rule 3A cannot be read in isolation 25 nor the latter part of it struck down as done by the High Court. Rule 3, Note 2, Ruling 3, and Rule 3A have to be read in conjunction as they provide for the treatment of the DCRG in case of disciplinary or judicial proceedings pending at the stage of retirement. Even in the absence of these proceedings in certain eventualities the amounts can be recovered from the DCRG - Set aside Full Bench judgment of Kerala High Court in K. Chandran vs Local Self Government Department 2020 (5) KLT 669 (FB) (Para 37, 39) 2022 LiveLaw (SC) 285

Summary: Appeal against High Court judgment which set aside Trial Court order to file the Court-fees on the amount of Rs.20 Lakhs as claimed by him in the Money suit for compensation- Allowed - A reading of the relief clause would make it abundantly clear that this was a money suit for compensation/damages and not falling under any of the categories mentioned in clause (iv) of Section 7 of the Act. Therefore, there would be no question at all for the applicability of Section 7(iv) of the Act. It would be a simple case of applicability of Section 7(i) of the Act and ad valorem Court-fees would have to be paid as per Schedule 1 entry. 2022 LiveLaw (SC) 292

Tender - Owner should always have the freedom to provide the eligibility criteria and/or the terms and conditions of the bid unless it is found to be arbitrary, mala fide and/or tailor made. The bidder/tenderer cannot be permitted to challenge the bid condition/clause which might not suit him and/or convenient to him- It is an offer to the prospective bidder/tenderer to compete and submit the tender considering the terms and conditions mentioned in the tender document. 2022 LiveLaw (SC) 295

Tender - SLP challenging High Court order dismissing the writ petition challenging a tender condition - Dismissed - The clause cannot be said to be arbitrary, mala fide and/or tailor made and the same shall be applicable to all the bidders/tenderers and there is justification also shown providing such a clause. 2022 LiveLaw (SC) 295

Transfer of Property Act, 1882; Section 122 - Gift - If the donor is making a gift out of his own free will and volition and is the exclusive owner of the properties, it is nobody's concern as to whom he gives the properties to - It is time that the Courts get out of this mindset, or possibly may have got out of this mindset by now on passing value judgments on relationships between parties in determining either a testamentary or non-testamentary disposition so long as the document executed is found to be validly executed. 2022 LiveLaw (SC) 299

Transfer of Property Act, 1882; Section 53A - Code of Civil Procedure, 1908 ; Order VII Rule 11 - Suit seeking reliefs of declaration and permanent injunction invoking Section 53A - Whether the plaintiffs shall be entitled to any relief under Section 53A or not has to be considered at the time of trial, but at this stage it cannot be said that the suit for the relief sought under Section 53A would not be maintainable at all and therefore the plaint is liable to be rejected in exercise of powers under Order VII Rule 11 CPC. (Para 7.4) 2022 LiveLaw (SC) 280

Transfer of Property Act, 1882; Section 53A - Code of Civil Procedure, 1908 ; Order VII Rule 11 - Appeal against judgment of Calcutta High Court which rejected the plaint under Order VII Rule 11 CPC mainly on the ground that the suit is barred by limitation and that a suit for a declaration simpliciter under Section 53A of the Transfer of Property Act would not be maintainable as against the actual owner - Allowed - High Court has not considered the entire plaint averments - The plaintiffs have also prayed for the decree for a permanent injunction claiming to be in possession and the declaration and permanent injunction as such invoking Section 53A of the Transfer of Property Act. When the suit is for a decree of permanent injunction and it is averred that the plaintiffs are in possession of the suit property pursuant to the agreement and thereafter, they have developed the land and that they are in continuous possession since more than twelve years and they are also paying taxes to the Corporation, the cause of action can be said to have arisen on the date on which the possession is sought to be disturbed. If that be so, the suit for decree for permanent injunction cannot be said to be barred by limitation. 2022 LiveLaw (SC) 280

Unlawful Activities (Prevention) Act, 1967; Section 43D(2)(b) - Magistrate would not be competent to consider the request for extension of time to complete investigation - The only competent authority to consider such request would be "the Court" as specified in the proviso in Section 43-D (2)(b) of the UAPA - Review petition filed by the State dismissed. 2022 LiveLaw (SC) 290

NOMINAL INDEX

1. Abhay Jain v. High Court of Judicature for Rajasthan, 2022 LiveLaw (SC) 284
2. Ajmer Vidhyut Vitran Nigam Ltd. v. Chiggan Lal, 2022 LiveLaw (SC) 296
3. Asean Cableship Pte. Ltd. v. Commissioner of Customs, 2022 LiveLaw (SC) 293
4. Balaji Ventures Pvt. Ltd. v. Maharashtra State Power Generation Company Ltd., 2022 LiveLaw (SC) 295
5. Biswanath Banik v. Sulanga Bose, 2022 LiveLaw (SC) 280
6. Gadadhar Chandra v. State of West Bengal, 2022 LiveLaw (SC) 287
7. Ganesh Patel v. Umakant Rajoria, 2022 LiveLaw (SC) 283
8. High Court of Delhi v. Devina Sharma, 2022 LiveLaw (SC) 286
9. Indian Ex Servicemen Movement v. Union of India, 2022 LiveLaw (SC) 289
10. Local Self Government Department v. K. Chandran, 2022 LiveLaw (SC) 285
11. M. Gopalakrishnan v. Pasumpon Muthuramalingam, 2022 LiveLaw (SC) 298
12. Manorama Naik v. State of Odisha, 2022 LiveLaw (SC) 297
13. Mohinder Singh v. Mal Singh, 2022 LiveLaw (SC) 299
14. N. Karthikeyan v. State of Tamil Nadu, 2022 LiveLaw (SC) 294
15. Nahar Singh v. State of Uttar Pradesh, 2022 LiveLaw (SC) 291
16. Neetu Singh v. State of UP, 2022 LiveLaw (SC) 281
17. Shyam Sel and Power Ltd. v. Shyam Steel Industries Ltd; 2022 LiveLaw (SC) 282
18. State of Madhya Pradesh v. Sadique, 2022 LiveLaw (SC) 290
19. State of Punjab v. Dev Brat Sharma, 2022 LiveLaw (SC) 292
20. Umesh Chandra Yadav v. Inspector General and Chief Security Commissioner, 2022 LiveLaw (SC) 300
21. Vipul Rasikbhai Koli Jankher v. State of Gujarat, 2022 LiveLaw (SC) 288