Supreme Court Weekly Round-Up

The Supreme Court observed that Article 137 of the Limitation Act, which provides for 3 year limitation period, applies to the proceedings under Indian Succession Act for moving an application for cancellation of probate or letters of administration.

Inherent Powers Under Article 142 Can Be Invoked To Dissolve Marriage Which Has Broken Down Irretrievably [R. Srinivas Kumar vs. R. Shametha]

The Supreme Court observed that it can exercise its inherent powers under Article 142 of the Constitution of India for dissolution of a marriage where it finds that the marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably, even if the facts of the case do not provide a ground in law on which the divorce could be granted.

Services Given By Incorporated Clubs To Members Exempted From Service Tax [Chief Commissioner of Central Excise & Service and others v Ranchi Club Ltd]

The Supreme Court held that services given by an incorporated club to its members are exempted from service tax. In the case the bench comprising Justices R F Nariman, Surya Kant and Ramasubramanian upheld the judgments of High Courts of Gujarat and Jharkhand which ruled out service tax liability on clubs for service to their members on the reasoning that there were no distinct legal entities of 'service provider' and 'service recipient' in a transaction between a members' club and its members.

Non-Mentioning Of Correct Provision Not Fatal To Application If The Power To Pass Order Is Available With Court [Pruthvirajsinh Nodhubha Jadeja (D) vs. Jayeshkumar Chhakaddas Shah]

The Supreme court observed that mere non-mentioning of an correct provision is not fatal to the application if the power to pass such an order is available with the court. In the appeal the bench comprising Justice Deepak Gupta and Justice Anniruddha Bose observed that JCS as an assignee of the rights of the original plaintiff, had a right to be impleaded as a plaintiff in place of MMT.

Applying 'Residual Doubt Theory', SC Commutes Death Penalty Awarded For Rape-Murder Of Minor [Ravishankar @ Baba Vishwakarma V. State of Maharashtra]

The Supreme Court applied "residual doubt theory" to commute the death penalty awarded to a person for rape and murder of a 13 year old girl. As per this theory, a higher standard of proof than used at the conviction stage is used to assess whether the convict deserves death penalty.

Disputes Arising Out Of Immovable Property 'Actually Used' In Trade Or Commerce Alone Are 'Commercial Disputes' [Ambalal Sarabhai Enterprises Ltd. vs. K.S. Infraspace LLP]

The Supreme Court held that, in order to fall within Section 2(1)(c)(vii) of the Commercial Courts Act, the immovable property must be "used exclusively" or "being used exclusively" in trade or commerce. The bench comprising Justice R. Banumathi and Justice AS Bopanna made it clear that the words 'used exclusively in trade or commerce' denotes "actually used" and it cannot be either "ready for use" or "likely to be used" or "to be used".

No Levy Of Sales Tax On Supply Of Food & Drinks By Clubs To Its Members [State of West Bengal v Calcutta Club Ltd]

The Supreme Court held that there is no levy of sales tax on the supply of food and beverages by members' clubs, whether incorporated and unincorporated, to its members. Answering a reference in the case, a three judges bench comprising Justices R F Nariman, Surya Kant and Rama Subramanian held that the "doctrine of mutuality" , as propounded in the case CTO v. Young Men's Indian Assn., (1970) 1 SCC 462, continued to operate even after the 46th amendment to the Constitution which inserted Article 366(29-A).

Road Traffic Offences Can Be Prosecuted Under Both IPC & Motor Vehicles Act: SC Sets Aside Gauhati HC Directive [The State Of Arunachal Pradesh V.Ramchandra Rabidas @ Ratan Rabidas & Anr.]

The Supreme Court observed that road traffic offences can be prosecuted under Motor Vehicles Act as well as Indian Penal Code. The bench comprising Justice Indu Malhotra and Justice Khanna observed thus while setting aside the direction issued by the Gauhati High Court to States of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram and Arunachal Pradesh that road traffic offences shall be dealt with only under the provisions of the Motor Vehicles Act and not under the provisions of Indian Penal Code.

"Institutional Preference" In PG Medical Courses Permissible Even After Introduction Of NEET [Yatinkumar Jasubhai Patel vs. State of Gujarat]

The Supreme Court observed that "Institutional Preference" in the Post Graduate Medical Courses is permissible even after the introduction of the NEET Scheme. The bench comprising Justice Arun Mishra, Justice MR Shah and Justice BR Gavai observed that the Institutional Preference to the extent of 50% has been approved by the Supreme Court in various judgments.

Accused Charged With Food Adulteration Cannot Be Acquitted Merely Because Deficiency Was Marginal [Raj Kumar vs. State of UP]

The Supreme Court observed that if the standards prescribed under Prevention of Food Adulteration Act, are not complied with, the accused charged with adulteration cannot be acquitted only on the ground that the deficiency is marginal.

Power Of Attorney Holder Cannot Depose In Respect Of Matters Which The Principal Alone Have Personal Knowledge [Mohinder Kaur vs. Sant Paul Singh]

The Supreme Court observed that a power of attorney holder cannot depose for the principal in respect of matters of which the principal alone can have personal knowledge and in respect of which the principal is entitled to be cross¬-examined.

Date Of Coming Into Force Of IBC Wholly Irrelevant To The Triggering Of Any Limitation For Applications [Sagar Sharma vs. Phoenix Arc Pvt. Ltd.]

The Supreme Court observed that the date of coming into force of the Insolvency and Bankruptcy Code does not and cannot form a trigger point of limitation for applications filed under the Code. The bench comprising Justice Rohinton Fali Nariman and Justice V. Ramasubramanian reiterated that, since such "applications" are petitions which are filed under the Code, it is Article 137 of the Limitation Act which will apply to such applications.

Discrimination Against SC-STs Still Prevalent; Cannot Presume They May Misuse Provisions Of Law As A Class [Union of India V. State of Maharasthra & Ors.]

While withdrawing the conditions imposed by the March 20, 2018 judgment for arrest of a person under the SC/ST Act, the Supreme Court observed that the discrimination against the members of the Scheduled Castes and Scheduled Tribes is still prevalent in various parts of the country The bench comprising Justice Arun Mishra, Justice MR Shah and Justice BR Gavai observed that there can be no presumption that the members of the SC and ST may misuse the provisions of law as a class. It would be against the basic human dignity to treat all of them as a liar or as a crook person and cannot look at every complaint by such complainant with a doubt, the bench observed.

Candidates Must Also Disclose Criminal Cases In Which Cognizance Has Been Taken By Court [Satish Ukey vs. Devendra Gangadharrao Fadnavis]

The Supreme Court observed that a contesting candidate must mandatorily disclose not only case(s) in which charges have been framed but also case(s) in which cognizance has been taken by the Competent Court. The bench of CJI Ranjan Gogoi, Justices Deepak Gupta and Aniruddha Bose held thus while setting aside the clean chit given to Maharashtra CM Devendra Fadnavis by the Bombay High Court in a case alleging furnishing false information in the election affidavit submitted during 2014 assembly polls.

Land Used For Quarrying Not Exempted From Applicability Of Kerala Land Reforms Act [H Nazar vs. Mathew K. Jacob]

The Supreme Court upheld the Judgment of Kerala High Court that the land which is used for quarrying is not covered by the expression 'commercial site' and therefore not exempted from the applicability of the Kerala Land Reforms Act, 1963.

Doctrine Of Prudence: SC Commutes Death Penalty Awarded To Man Convicted For Murder Of Wife, 4 Kids [Sudam @ Rahul Kaniram Jadhav V. State of Maharasthra]

Partly allowing his review petition, the Supreme Court commuted the death penalty awarded to Sudam @ Rahul Kaniram Jadhav, convicted for murder of his wife and four children.

Arbitration - Sec 14 Limitation Act Applicable If Sec 34 Petition Filed At The First Instance Was Within Time [Oriental Insurance Co. Ltd. vs. M/s Tejparas Associates & Exports Pvt. Ltd.]

The Supreme Court observed that Section 14 of the Limitation Act would be applicable to the proceedings under Section 34 of the Arbitration and Conciliation Act, 1996 if the petition under Section 34 (at the first instance) was filed within time.

IBC Has Overriding Effect Over Tea Act; Central Govt. Consent Not Required For Initiating Insolvency Proceedings [Duncans Industries Ltd vs. A. J. Agrochem]

The Supreme Court held that the provisions of the Insolvency and Bankruptcy Code would have an overriding effect over the Tea Act, 1953 and even without such consent of the Central Government, the insolvency proceedings under Section 7 or Section 9 of the IBC initiated by the operational creditor shall be maintainable. The bench of Justice Arun Mishra, Justice MR Shah and Justice BR Gavai dismissed the appeal filed against the National Company Law Appellate Tribunal which had held that it would be maintainable.

Section 9A CPC (Maharashtra)- Question Of Limitation Cannot Be Decided As A Preliminary Issue [Nusli Neville Wadia vs. Ivory Properties]

The Supreme Court observed that, under Section 9A of the Code of Civil Procedure applicable in the state of Maharashtra, question of limitation cannot be decided as a preliminary issue. The bench comprising Justice Arun Mishra, Justice MR Shah and Justice BR Gavai observed that under the provisions of Section 9A and Order XIV Rule 2, it is open to decide preliminary issues if it is purely a question of law and not a mixed question of law and fact by recording evidence.

Change In Govt. Policy Due To Overriding Public Interest Must Be Given Due Weight While Considering Claim Of Legitimate Expectation [Kerala State Beverages (M and M) Corporation Limited V. P.P. Suresh & Ors, Etc. Etc. & Ors.]

The Supreme Court observed that overriding public interest can be a reason for change in policy of the Government and that has to be given due weight while considering the claim of legitimate expectation. The bench comprising Justice L. Nageswara Rao and Justice Hemant Gupta set aside the Kerala High Court judgment which directed the Government to implement its policy reserving daily wage employment vacancies to displaced arrack workers.

Disciplinary Proceedings Against Judicial Officers Not To Be Initiated Merely Because They Passed Wrong Order

The Supreme Court observed that disciplinary proceedings should not be initiated against Judicial Officers merely on the basis that a wrong order has been passed by them or merely on the ground that the judicial order is incorrect. To err is human and not one of us, who has held judicial office, can claim that we have never passed a wrong order, the bench comprising Justice Deepak Gupta and Justice Aniruddha Bose observed while quashing all the orders passed against a Judicial officer in a disciplinary proceedings against him.

Independence And Fearlessness Of Judiciary Not Only Expected From Superior Courts But Also From District Judiciary [Krishna Prasad Verma V. State of Bihar]

While quashing disciplinary action taken against a judicial officer, the Supreme Court observed that independence and fearlessness of judiciary is not only expected at the level of the Superior Courts but also from the District judiciary.

SC Confirms By 2:1 Majority Death Penalty For Rape-Murder Of Infant; Justice Reddy Dissents [Ravi v State of Maharashtra]

The Supreme Court confirmed by 2:1 majority death penalty to a man found guilty for murder and rape of a two year old girl. While the majority comprising Justices R F Nariman and Surya Kant upheld the death penalty confirmed by the Bombay High Court in the case, Justice Subhash Reddy dissented.

SC Affirms Death Penalty To 'Tantric' Couple Who Killed Infant For Human Sacrifice [Ishwari Lal Yadav V.State of Chhattisgarh]

The Supreme Court affirmed the death sentence awarded to a 'tantric' couple accused of murdering a boy, by performing the ritual of human sacrifice. The bench of Justice Rohinton Fali Nariman, Justice R. Subhash Reddy and Justice Surya Kant, after examining the evidence on record, unanimously held that the instant case is a case of "rarest of rare cases" where death sentence" can be imposed.

Article 227- Availability Of Appellate Remedy Under CPC Can Be 'Near Total Bar' For Exercising Supervisory Jurisdiction [Virudhunagar Hindu Nadargal Dharma Paribalana Sabai vs. Tuticorin Educational Society]

The Supreme Court has observed that the availability of an appellate remedy in terms of the provisions of Code of Civil Procedure can be construed as a 'near total bar' for the exercise of supervisory jurisdiction under Article 227 of the Constitution of India. The bench comprising of Justice Rohinton Fali Nariman and Justice V. Ramasubramanian was considering an appeal against an order of the High Court passed under Article 227 of the Constitution, vacating an interim order of injunction granted by the trial Court, the plaintiffs have come up with this appeal.

Other Significant Orders and Proceedings

• Upheld a judgment of Punjab and Haryana High Court which extended the benefits of the Swatantarta Sainik Samman Pension Scheme to divorced daughters of freedom fighters.
• Directed the Gujarat Government to pay Rs 50 lakhs compensation and provide job within two weeks to a woman who survived gangrape during 2002 Gujarat riots.
• The three judges bench comprising CJI Gogoi, Justices Bobde and Abdul Nazeer referred the petitions challenging the lockdown measures and communication shut down in Jammu and Kashmir to the Constitution Bench, which has been formed to hear the pleas challenging repeal of J&K special status and the bifurcation of the state.
• Dismissed the habeas corpus petition filed by MDMK leader Vaiko seeking release of former Jammu and Kashmir Chief Minister Farooq Abdullah.
• Granting relief to all women who could not appear in the physical test for Bihar Police Selection process last year owing to their pregnancy, the Supreme Court has directed the Bihar Police Subordinate Service Commission to conduct their physical tests now and adjust them against vacancies notified this year.
• In a set back to Maharashtra Chief Minister Devendra Fadnavis, the Supreme Court set aside the clean chit given to him by the Bombay High Court in a case alleging furnishing false information in the election affidavit submitted during 2014 assembly polls.
• A three judge bench of the Supreme Court consisting of Justices Arun Mishra, M R Shah and B R Gavai allowed Centre's petition seeking review of its March 20, 2018 judgement which had virtually diluted provisions of arrest under the SC/ST Act.
• The Constitution Bench of the Supreme Court adjourned till November 14 the hearing the petitions challenging the constitutional validity of repeal of special status of Jammu and Kashmir, and the bifurcation and downgrading of the state into two Union Territories.
• Justices N.V. Ramana, R.Subhash Reddy and B.R. Gavai recused from hearing the petition filed by Gautam Navlakha challenging the September 13 judgment of Bombay High Court that refused to quash the FIR registered against him by Pune police alleging his involvement in inciting the violence at Koregaon Bhima in Pune on January 1, 2018.
• Justice Ravindra Bhat recused from hearing the petition filed by Gautam Navlakha challenging the September 13 judgment of Bombay High Court that refused to quash the FIR registered against him by Pune police alleging his involvement in inciting the violence at Koregaon Bhima in Pune on January 1, 2018.
• said it would not entertain any further petitions challenging the Constitutional validity of the amendment to Article 370 revoking the special status for Jammu and Kashmir.
• Directed the State of Maharashtra to re-verify the community certificates, granted to persons claiming to belong to Scheduled Tribes, between the period 30.7.2011 and 31.8.2012.
• Reserved judgment on the petitions challenging the constitutional validity of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act of 2018 enacted to nullify the effects of the March 20, 2018 judgment of the SC which had diluted the provisions of the Act.
• Sought a response from the Centre on a plea seeking the appointment of judicial and expert members for the benches of the National Green Tribunal across the country.
• Issued notice to the CBI on the petition filed by former Union Finance Minister P Chidambaram challenging the September 30 judgment of Delhi High Court that denied him regular bail in INX Media case.
• Asked the parties involved in a plea seeking permission to rebuild the Guru Ravidas temple in Delhi's Tughlaqabad forest area to come back to it with an amicable solution on a better location for the temple.
• Granted interim protection from arrest to activist Gautam Navlakha in the Bhima Koregaon case. The bench of Justices Arun Mishra and Deepak Gupta directed the Maharashtra police to produce the materials collected against him in the investigation so far and posted the matter on October 15 at 3 PM.