Supreme Court Quarterly Digest 2022- Words & Phrases (Jan-Mar)

Cessante ratione legis cessat ipsa lex - Reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself. (Para 25) Kamla Devi v. State of Rajasthan, 2022 LiveLaw (SC) 272

Chance Witness - A chance witness is the one who happens to be at the place of occurrence of an offence by chance, and therefore, not as a matter of course. In other words, he is not expected to be in the said place. A person walking on a street witnessing the commission of an offence can be a chance witness. Merely because a witness happens to see an occurrence by chance, his testimony cannot be eschewed though a little more scrutiny may be required at times. This again is an aspect which is to be looked into in a given case by the court. (Para 26) Rajesh Yadav v. State of U.P., 2022 LiveLaw (SC) 137

Consumer - When a person avails a service for a commercial purpose, to come within the meaning of 'consumer' as defined in the said Act, he will have to establish that the services were availed exclusively for the purposes of earning his livelihood by means of self -employment. (Para 45) Shrikant G. Mantri v. Punjab National Bank, 2022 LiveLaw (SC) 197

Contra proferentem rule - Inapplicability of this doctrine to the eligibility conditions in a notice inviting tender - This rule cannot be applied to lay down that in case of any ambiguity in a tender document, it has to be construed in favour of a particular person who projects a particular viewpoint - if two different tenderers suggest two different interpretations, the question would always remain as to which of the two interpretations is to be accepted? Obviously, to avoid such unworkable scenarios, the principle is that the author of the tender document is the best person to interpret its documents and requirements. The only requirement of law, for such process of decision making by the tender inviting authority, is that it should not be suffering from illegality, irrationality, mala fide, perversity, or procedural impropriety. (Para 24) Agmatel India Pvt. Ltd. v. Resoursys Telecom, 2022 LiveLaw (SC) 105

Contra proferentem rule - The rule applied in the case of ambiguity in the insurance policy because the policies are made by the insurer and its ambiguity cannot be allowed to operate against the insured. (Para 24) Agmatel India Pvt. Ltd. v. Resoursys Telecom, 2022 LiveLaw (SC) 105

Dies non juridicus - A day which is regarded by the law as one on which no judicial act can be performed, or legal diligence used. [Referred to P. Ramanatha Aiyar's Law Lexicon] (Para 25.1) Prakash Corporates v. Dee Vee Projects Ltd., 2022 LiveLaw (SC) 162

Dowry - Demand for money raised on the deceased for construction of a house as falling within the definition of the word "dowry". (Para 12-14) State of Madhya Pradesh v. Jogendra, 2022 LiveLaw (SC) 37

Due process of law - Meaning discussed. (Para 12) Padhiyar Prahladji Chenaji v. Maniben Jagmalbhai, 2022 LiveLaw (SC) 241

"Errata" - Scope and meaning of - discussed - "Errata" is a term of French origin which means a thing that should be corrected. It means a mistake in printing or writing - Errata is a correction of a mistake. Hence, only arithmetical and clerical mistakes could be corrected and the scope of the notification could not be enlarged by virtue of an errata notification, (Para 153 -154) State of Andhra Pradesh v. A.P. State Wakf Board, 2022 LiveLaw (SC) 136

Evidence - Definition of - Factor or material, lending a degree of probability through a logical inference to the existence of a fact. (Para 12) Rajesh Yadav v. State of U.P., 2022 LiveLaw (SC) 137

Exemption Entry - When the exemption Entry is clear and unambiguous, no external aid for interpretation is called for, whether in the form of Budget speech or any other notification under any other enactment. (Para 11) Authority for Clarification and Advance Ruling v. Aakavi Spinning Mills (P) Ltd., 2022 LiveLaw (SC) 191

Exemption Notifications - The exemption notification should not be liberally construed and beneficiary must fall within the ambit of the exemption and fulfill the conditions thereof. In case such conditions are not fulfilled, the issue of application of the notification does not arise at all by implication - The notification has to be read as a whole. An exception and/or an exempting provision in a taxing statute should be construed strictly and given a meaning according to legislative intendment - It is not open to the court to ignore the conditions prescribed in the relevant policy and the exemption notifications issued in that regard.The Statutory provisions providing for exemption have to be interpreted in light of the words employed in them and there cannot be any addition or subtraction from the statutory provisions. (Para 8.1 - 8.3) Krishi Upaj Mandi Samiti v. Commissioner, 2022 LiveLaw (SC) 203

Finding' and 'reasons' - Difference between - Finding is a decision on an issue – Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. I-Pay Clearing Services Pvt. Ltd. v. ICICI Bank Ltd. 2022 LiveLaw (SC) 2

Intention of Legislature - Legislative intent in the enactment of a statute is to be gathered from the express words used in the statue unless the plain words literally construed give rise to absurd results. This Court has to go by the plain words of the statute to construe the legislative. (Para 11) State of Rajasthan v. Tejmal Choudhary, 2022 LiveLaw (SC) 158

Intoxicating Liquor - IMFL destroyed in fire answers to the description of "spirit", "liquor" and "excisable article" within the meaning of Clauses (8) (11) and (22-a) of Section 3 of the Excise Act, 1910 (U.P.), for being an intoxicating liquor containing alcohol obtained by distillation. (Para 36) State of U.P. v. Mcdowell and Company Ltd., 2022 LiveLaw (SC) 13

Judgments - Words and phrases and/or sentences in a judgment cannot be read in the manner of a statute, and that too out of context. (Para 47) Pahwa Plastics Pvt. Ltd. v. Dastak NGO, 2022 LiveLaw (SC) 318

Jurisdiction - An ouster of jurisdiction cannot be lightly assumed unless express words are used or such a consequence follows by necessary implication. (Para 16) Indian Oil Corporation Ltd. v. Shree Ganesh Petroleum Rajgurunagar, 2022 LiveLaw (SC) 221

Law of Precedent - Constitution Bench Judgment - Once the majority opines in a particular matter, that is the judgment of the Constitution Bench. (Para 3) Ravindra v. Union of India, 2022 LiveLaw (SC) 156

Law of Precedents - A decision is an authority only for what it actually decides. Every judgment must be read as applicable to the particular facts, proved or assumed to be proved. The generality of the expressions found there, is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. (Para 93) Ms. X v. Registrar General, 2022 LiveLaw (SC) 150

Law of Precedents - A judgment of a Court is precedent for the issue of law which is raised and decided. Words and phrases used in a judgment cannot be read in isolation, out of context. (Para 59) Indian Oil Corporation Ltd. v. Shree Ganesh Petroleum Rajgurunagar, 2022 LiveLaw (SC) 121

Law of Precedents - The ratio decidendi is a rule deducible from the application of law to the facts and circumstances of a case and not some conclusion based upon facts which may appear to be similar. - One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts. (Para 94) Ms. X v. Registrar General, 2022 LiveLaw (SC) 150

Legal Fiction - When a legal fiction is employed by the legislature, it becomes a duty of the Court to interpret it and to give it meaning. In gleaning its meaning, the Court is duty bound to ascertain the purpose of this legislative device. The Court cannot allow its mind to be boggled in the matter of carrying the legal fiction to its logical end. But this is not the same as holding that the Court will not look to the object of the Act and, in particular, the fiction in question. (Para 36) New Okhla Industrial Development Authority (Noida) v. Yunus, 2022 LiveLaw (SC) 123

Legal malice" or "malice in law" - State is under the obligation to act fairly without ill will or malice — in fact or in law. "Legal malice" or "malice in law" means something done without lawful excuse. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. Where malice is attributed to the State, it can never be a case of malice or spite on the part of the State. It would mean exercise of statutory power for "purposes foreign to those for which it is in law intended". It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others. (Para 58) Ms. X v. Registrar General, 2022 LiveLaw (SC) 150

Legitimate Expectation - Doctrine of - Mere reasonable or legitimate expectation of a citizen may not by itself be a distinct enforceable right - The failure to consider and give due weight to it may render the decision arbitrary - The requirement of due consideration of a legitimate expectation forms part of the principle of non­arbitrariness, which is a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant's perception but in larger public interest wherein other more important considerations may outweigh, what would otherwise have been the legitimate expectation of the claimant - A bona fide decision of the public authority reached in this manner would satisfy the requirement of non­arbitrariness and withstand judicial scrutiny. (Para 40) Ms. X v. Registrar General, 2022 LiveLaw (SC) 150

Matters - Matters are necessary, concomitant material factors to prove a fact. All evidence would be "matters" but not vice versa. In other words, matters could be termed as a genus of which evidence would be a species. Matters also add strength to the evidence giving adequate ammunition in the Court's sojourn in deciphering the truth. Thus, the definition of "matters" is exhaustive, and therefore, much wider than that of "evidence". However, there is a caveat, as the court is not supposed to consider a matter which acquires the form of an evidence when it is barred in law. Matters are required for a court to believe in the existence of a fact - Matters do give more discretion and flexibility to the court in deciding the existence of a fact. Rajesh Yadav v. State of U.P., 2022 LiveLaw (SC) 137

Merit - Merit cannot be reduced to narrow definitions of performance in an open competitive examination which only provides formal equality of opportunity. Competitive examinations assess basic current competency to allocate educational resources but are not reflective of excellence, capabilities and potential of an individual which are also shaped by lived experiences, subsequent training and individual character. Crucially, open competitive examinations do not reflect the social, economic and cultural advantage that accrues to certain classes and contributes to their success in such examinations. (Para 59(ii)) Neil Aurelio Nunes v. Union of India, 2022 LiveLaw (SC) 73

Negligence - Meaning - Failure to exercise that care which a reasonably prudent person would usually exercise under similar circumstances would amount to negligence; it is not necessary that negligence would always be advertent one where the wrongdoer is aware of unreasonable risk being created but it may be inadvertent or passive too, arising for want of foresight or because of some omission. However, the question as to whether the liability because of negligence could be fastened on the respondent company or not cannot be determined without dealing with the other aspects related with exceptions and defence to the allegation of negligence. (Para 49-52) State of U.P. v. Mcdowell and Company Ltd., 2022 LiveLaw (SC) 13

Negligence - The fault of "negligence" need not always be of active negligence or of gross negligence, but it may also be of inadvertent negligence or of passive negligence. (Para 63) State of U.P. v. Mcdowell and Company Ltd., 2022 LiveLaw (SC) 13

Nemo dat quod non habet - No one can confer a better title than what he himself has. (Para 19) Umadevi Nambiar v. Thamarasseri Roman Catholic Diocese, 2022 LiveLaw (SC) 338

Obiter Dictum - Ratio Decidendi - "Obiter dictum" as "an opinion not necessary to a judgment; an observation as to the law made by a Judge in the course of a case, but not necessary to its decision, and therefore, of no binding effect; often called as obiter dictum, 'a remark by the way'"- A decision on a point not necessary for the purpose of or which does not fall for determination in that decision becomes an obiter dictum - Only the ratio decidendi can act as the binding or authoritative precedent. Reliance placed on mere general observations or casual expressions of the Court, is not of much avail. (Para 41) Jarnail Singh v. Lachhmi Narain Gupta, 2022 LiveLaw (SC) 94

Officer", "subordinate", "any", "officer subordinate" - Meaning of expressions - Discussed. (Para 31 -33) NKGSB Cooperative Bank Ltd. v. Subir Chakravarty, 2022 LiveLaw (SC) 212

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) Indian Ex Servicemen Movement v. Union of India, 2022 LiveLaw (SC) 289

Payment in due course - Definition of - The requirement in Section 10 that the payment should be in both good faith and without negligence is cumulative. Thus, mere good faith is not sufficient. (Para 17) Pradeep Kumar v. Post Master General, 2022 LiveLaw (SC) 139

Payment in due course' - Definition of - Ascertainment of whether the act of payment is in good faith and without negligence is by examination of the circumstances in which payment is made. In other words, antecedent and present circumstances should not afford a reasonable ground for believing that the person to whom payment is made is not entitled to receive payment of the amount mentioned.9 While it would not be advisable or feasible to strait -jacket the circumstances, albeit value of the instrument, other facts that would raise doubts about the reliability and identity of the person entitled to receive payment and genuineness of the instrument in the payer's mind are relevant considerations. (Para 17) Pradeep Kumar v. Post Master General, 2022 LiveLaw (SC) 139

Precedents - A judgment is a precedent for the issue of law that is raised and decided. The judgment has to be construed in the backdrop of the facts and circumstances in which the judgment has been rendered. Words, phrases and sentences in a judgment, cannot be read out of context. Nor is a judgment to be read and interpreted in the manner of a statute. It is only the law as interpreted by in an earlier judgment, which constitutes a binding precedent, and not everything that the Judges say. (Para 41) Ravi Ranjan Developers Pvt. Ltd. v. Aditya Kumar Chatterjee, 2022 LiveLaw (SC) 329

Pre-emption - Maligned law. Such rights have been characterized as feudal, archaic and outmoded. Such right of pre-emption has been taken away and all proceedings pending before any authority have been ordered to be abated including proceedings in any other Court. Any other Court is wide enough to include the Constitutional Courts i.e. the High Court and the Supreme Court. (Para 12) Punyadeo Sharma v. Kamla Devi, 2022 LiveLaw (SC) 23

Premature Release - Relevant Considerations - Prior criminal history, conduct and behaviour in jail, possible danger to society, etc. are relevant considerations - The application has to be considered on the basis of the policy as it stood on the date when the applicant was convicted of the offence. (Para 6, 7) Sharafat Ali v. State of Uttar Pradesh, 2022 LiveLaw (SC) 179

Promissory Estoppel - Doctrine of - In taxing matters, the doctrine of promissory estoppel as such is not applicable and the Revenue can take a position different from its earlier stand in a case with established distinguishing features. (Para 20.3) State of Gujarat v. ArcelorMittal Nippon Steel, 2022 LiveLaw (SC) 79

Promissory Estoppel - Doctrine of - The doctrine of promissory estoppel is an equitable remedy and has to be moulded depending on the facts of each case and not straitjacketed into pigeonholes. In other words, there cannot be any hard and fast rule for applying the doctrine of promissory estoppel but the doctrine has to evolve and expand itself so as to do justice between the parties and ensure equity between the parties. (Para 20.2) State of Gujarat v. ArcelorMittal Nippon Steel, 2022 LiveLaw (SC) 79

Property - Penal Code, 1860; Section 405 - The definition in the section does not restrict the property to movables or immoveable alone - There is no good reason to restrict the meaning of the word 'property' to moveable property only when it is used without any qualification in Section 405. (Para 25) Vijay Kumar Ghai v. State of West Bengal, 2022 LiveLaw (SC) 305

Prospective Overruling - Doctrine of - In declaration of the law, the doctrine of prospective overruling can be applied by this Court to save past transactions under earlier decisions superseded or statutes held unconstitutional. (Para 23) State of Manipur v. Surjakumar Okram, 2022 LiveLaw (SC) 113

Prospective Overruling - Doctrine of - The law declared by the Supreme Court is the law of the land and in so declaring, the operation of the law can be restricted to the future, thereby saving past transactions. The doctrine of prospective overruling is in essence a recognition of the principle that the Court moulds the reliefs claimed to meet the justice of the case- Court can apply its decision prospectively, i.e., from the date of its judgment to save past transactions. (Para 34) Jarnail Singh v. Lachhmi Narain Gupta, 2022 LiveLaw (SC) 94

Prospective Overruling - Doctrine of - The observation made in M.A. Murthy v. State of Karnataka (2003) 7 SCC 517 that there shall be no prospective overruling unless indicated in the particular decision is obiter – The casual and unnecessary observation in M.A. Murthy (supra) that there shall be no prospective overruling unless it is so indicated in a particular decision is obiter and not binding. (Para 41) Jarnail Singh v. Lachhmi Narain Gupta, 2022 LiveLaw (SC) 94

Proved - The definition of the word "proved" though gives an impression of a mere interpretation, in effect, is the heart and soul of the entire Act. This clause, consciously speaks of proving a fact by considering the "matters before it". The importance is to the degree of probability in proving a fact through the consideration of the matters before the court. What is required for a court to decipher is the existence of a fact and its proof by a degree of probability, through a logical influence. (Para 13) Rajesh Yadav v. State of U.P., 2022 LiveLaw (SC) 137

Public Interest - The term 'Public interest' has no rigid definition. It has to be understood and interpreted in reference to the context in which it is used. The concept derives its meaning from the statute where it occurs, the transaction involved, the state of society and its needs. (Para 8.7) Small Industries Development Bank of India v. Sibco Investment Pvt. Ltd., 2022 LiveLaw (SC) 7

Question of law - Phrases such as, 'question of law', are open textual expressions, used in statutes to convey a certain meaning which the legislature would not have intended to be read in a pedantic manner. When words of the Sections allow narrow as well as wide interpretations, courts of law have developed the art and technique of finding the correct meaning by looking at the words in their context. (Para 14-16) Securities and Exchange Board of India v. Mega Corporation Ltd., 2022 LiveLaw (SC) 319

Res ipsa loquitur - Negligence may be presumed from the mere fact of accident; of course, the presumption depends upon the nature of the accident and the surrounding factors. (Para 57-58) State of U.P. v. Mcdowell and Company Ltd., 2022 LiveLaw (SC) 13

Retrospectivity - A statute which affect substantive rights is presumed to be prospective in operation unless made retrospective and unless textually impossible a statute which merely affects procedure is presumed to be retrospective. However, a statute which not only changes the procedure but also creates new rights or liabilities is to be construed to be prospective in operation, unless otherwise provided either expressly or by necessary implication. State of Rajasthan v. Tejmal Choudhary, 2022 LiveLaw (SC) 158

Retrospectivity - Every statute is prospective, unless it is expressly or by necessary implication made to have retrospective operation. There is a presumption against retrospectivity. An express provision should ordinarily be made to make a statute retrospective. The presumption against retrospectivity may also be rebutted by necessary implication. (Para 7) State of Rajasthan v. Tejmal Choudhary, 2022 LiveLaw (SC) 158

Retrospectivity - The device of a legal fiction can also be used to introduce retrospective operation. Generally, it is considered that every statute dealing with substantive rights is prima facie prospective unless it is expressly or by necessary implication made retrospective. State of Rajasthan v. Tejmal Choudhary, 2022 LiveLaw (SC) 158

Subordinate Legislation - A subordinate legislation must be interpreted to effectuate the statutory purpose and objective. (Para 21.1) Regional Transport Authority v. Shaju, 2022 LiveLaw (SC) 174

Ut Res Magis Valeat Quam Pereat" - A liberal construction should be put up on written instruments, so as to uphold them, if possible, and carry into effect, the intention of the parties - Interpretation of a provision of law that will defeat the very intention of the legislature must be shunned in favour of an interpretation that will promote the object sought to be achieved through the legislation. (Para 13) State of Madhya Pradesh v. Jogendra, 2022 LiveLaw (SC) 37

Void and Voidable - discussed. (Para 8, 9) Jayashree v. Director Collegiate Education, 2022 LiveLaw (SC) 237