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Supreme Court Weekly Digest With...

Supreme Court Weekly Digest With Subject /Statute Wise Index [May 11 to 20]

LIVELAW NEWS NETWORK

5 July 2024 10:28 AM IST

Arbitration and Conciliation Act, 1996

Arbitration and Conciliation Act, 1996; Section 34 & 37 – Interference in arbitral award has limited scope under Section 34 and 37 – As far as the construction of the terms of a contract is concerned, it is for the Arbitral Tribunal to adjudicate upon. If, after considering the material on record, the Arbitral Tribunal takes a particular view on the interpretation of the contract, the Court under Section 34 does not sit in appeal over the findings of the arbitrator. The majority opinion of technical persons need not be subjected to a relook, especially when the learned Single Judge had also agreed with the view taken by the Arbitral Tribunal. The findings of the majority in the Arbitral award is upheld. No merit in appeal. (Para 13 & 15) National Highway Authority of India v. Hindustan Construction Company Ltd; 2024 LiveLaw (SC) 361

Cable Television Networks Rules, 1994

Rule 7 – Directions against misleading ads – Held, before an advertisement is printed/aired/displayed, a Self-declaration shall be submitted by the advertiser/advertising agency on the lines contemplated in Rule 7 of the Cable Television Networks Rules, 1994. The Self-declaration shall be uploaded by the advertiser/advertising agency on the Broadcast Sewa Portal run under the aegis of the Ministry of Information and Broadcasting. No advertisements shall be permitted to be run on the relevant channels and/or in the print media/internet without uploading the self-declaration as directed above. Further held, the directions shall be treated as the law declared by this Court under Article 141 of the Constitution of India. (Para 23 & 24) Indian Medical Association v. Union of India, 2024 LiveLaw (SC) 381

Central Excise Tariff Act, 1985

Note 3 to Chapter 18 and Central Goods and Services Tax Act, 2017; Section 2(f) – Activities amounting to “manufacture” – Whether the labelling/re-labelling or putting additional labels on the product amounted to manufacture? – Note 3 contemplates three different processes and if either of the three processes are satisfied, the same would amount to manufacture. The three processes are: (i) labelling or re-labelling of containers; or (ii) repacking from bulk packs to retail packs; or (iii) the adoption of any other treatment to render the product marketable to the consumer. Held, in terms of Note 3 to Chapter 18, the process of re-labelling on both sides of the packs containing goods in the present case would amount to 'manufacture'. Hence, view taken by CESTAT that the credit and the rebate were rightly availed of by the respondent is correct and no interference is required. Appeal is dismissed. (Para 13.3, 15 & 16) Commissioner of Central Excise Belapur v. Jindal Drugs Ltd; 2024 LiveLaw (SC) 374

Cenvat Credit Rules, 2004; Rule 3 – Held, rule 3 allows cenvat credit only in a case where the process undertaken amounts to manufacture. (Para 5.5) Commissioner of Central Excise Belapur v. Jindal Drugs Ltd; 2024 LiveLaw (SC) 374

Central Reserve Police Force Act, 1949

Section 11 (1) and Central Reserve Police Force Rules, 1955; Rule 27 – Punishment of compulsory retirement is challenged – The respondent was part of a disciplined force and has been found guilty of assaulting his colleague. The punishment of compulsory retirement is not shockingly disproportionate to the proven misconduct. Hence, there is no reason to interfere with the punishment awarded. The punishment of compulsory retirement awarded to the respondent is affirmed. (Para 35 & 36) Union of India v. Santosh Kumar Tiwari, 2024 LiveLaw (SC) 366

Section 11 (1) and Central Reserve Police Force Rules, 1955; Rule 27 – Validity of Rule 27 of the CRPF Rules – Whether Rule 27 to the extent it provides for punishments other than those specified in Section 11 of the CRPF Act, ultra vires the CRPF Act and as such inoperable and void? – Held, Section 11 expressly uses the phrase “subject to any rules made under this Act” which conveys the idea of a provision yielding place to another provision or other provisions subject to which it is made. When the enabling Act itself permits its modification by rules, the rules made prevail over the provision in the Act. Hence, the Central Government in exercise of its general rule-making power, can prescribe punishments other than those specified in section 11, including the punishment of compulsory retirement. Prescribing the punishment of compulsory retirement under Rule 27 cannot be said to be ultra vires Section 11 of the CRPF Act. (Para 28, 29, 32, 33) Union of India v. Santosh Kumar Tiwari, 2024 LiveLaw (SC) 366

Code of Civil Procedure, 1908

Order 21, Rule 54(1) & 66 – Valuation of sale property – Either whole of the attached property or such portion thereof as may seem necessary to satisfy the decree shall be sold in auction. The valuation of the property mentioned in attachment Panchanama (prepared under Rule 54) can always provide the estimated value of the property, otherwise the provisions enabling the court to auction only a part of the property which would be sufficient to satisfy the decree would be unworkable or redundant. The sale held without examining this aspect and not in conformity with this mandatory requirement would be illegal and without jurisdiction. Held, when only one of the attached properties was sufficient to satisfy the decree there was no requirement for effecting the sale of the entire attached properties. Further held, when the valuation of three attached properties is mentioned in the attachment Panchanama, it was the duty of the Court to have satisfied itself on this aspect and having failed to do so the Court has caused great injustice to the judgment debtor by auctioning his entire attached properties causing huge loss to the judgment debtor and undue benefit to the auction purchaser. (Para 22 & 25) Bhikchand v. Shamabai Dhanraj Gugale, 2024 LiveLaw (SC) 375

Order 41 Rule 31 – Omission to frame points of determination by the first appellate court – Held, even if the first appellate Court does not separately frame the points for determination arising in the first appeal, it would not prove fatal as long as that Court deals with all the issues that actually arise for deliberation in the said appeal. Substantial compliance with the mandate of Order 41 Rule 31 CPC in that regard is sufficient. (Para 30) Mrugendra Indravadan Mehta v. Ahmedabad Municipal Corporation, 2024 LiveLaw (SC) 369

Section 144 – Objection of restitution on grounds of being a bona fide purchaser – Held, one who has purchased property from decree holder with full knowledge of pending restitution proceedings is not entitled to object restitution on the ground that he is a bona fide purchaser. (Para 18) Bhikchand v. Shamabai Dhanraj Gugale, 2024 LiveLaw (SC) 375

Section 144 – Restitution – A decree for realisation of a sum in favour of the plaintiff should not amount to exploitation of the judgment debtor by selling his entire property. The right of a decree holder should never be construed to have bestowed upon him a bonanza only because he had obtained a decree for realisation of a certain amount. Restitution application is allowed. Sale of the attached properties belonging to the judgment debtor is set aside and the parties are restored back to the position where the execution was positioned before the attachment of the immovable properties. (Para 27 & 28) Bhikchand v. Shamabai Dhanraj Gugale, 2024 LiveLaw (SC) 375

Code of Criminal Procedure, 1973

Section 102 (1) – Grounds to challenge seizure – The order of seizure can be challenged on the ground that the seizing officer lacked jurisdiction to act under Section 102(1) Cr.P.C. or that the seized item does not satisfy the definition of 'property' or on the ground that the property which was seized could not have given rise to suspicion concerning the commission of a crime, in order for the authorities to justify the seizure. (Para 13) Shento Varghese v. Julfikar Husen, 2024 LiveLaw (SC) 371

Section 102(1) & 102(3) – 'Seizure orders' – Substantive power on the police to seize property linked to a crime – Whether non-compliance with the procedural formality of reporting such seizure forthwith to the Magistrate would vitiate the seizure? – Held, the validity of the power exercised under Section 102(1) Cr.P.C. is not dependent on the compliance with the duty prescribed on the police officer under Section 102(3) Cr.P.C. The obligation to report the seizure to the Magistrate is neither a jurisdictional pre-requisite for exercising the power to seize nor is the exercise of such power made subject to compliance with the reporting obligation. Hence, the act of seizure (seizure order) would not get vitiated by virtue of such delay in reporting to the magistrate. (Para 13, 14 & 24) Shento Varghese v. Julfikar Husen, 2024 LiveLaw (SC) 371

Section 102 (3) – Interpretation of the expression 'shall forthwith report the seizure to the Magistrate' – The expression means 'as soon as may be', 'with reasonable speed and expedition', 'with a sense of urgency', and 'without any unnecessary delay'. In other words, it would mean as soon as possible, judged in the context of the object sought to be achieved or accomplished. Hence, the interpretation of the word 'forthwith' would depend upon the terrain in which it travels and would take its colour depending upon the prevailing circumstances which can be variable. (Para 22 & 23) Shento Varghese v. Julfikar Husen, 2024 LiveLaw (SC) 371

Section 357 – Victimology – Impugned order to pay compensation in lieu of Punishment – Held, the High Court having once affirmed the conviction and awarded sentence of four years could not have further diluted the order of sentence by asking the accused persons to pay compensation. Further held, Payment of victim compensation cannot be a consideration or a ground for reducing the sentence imposed upon the accused as victim compensation is not a punitive measure and only restitutory in nature and thus, has no bearing with the sentence that has been passed which is punitive in nature. Hence, the High Court fell into error. Sentences such as imprisonment and / or fine are imposed independently of any victim compensation and thus, the two stand on a completely different footing, either of them cannot vary the other. If payment of compensation becomes a consideration for reducing sentence, itt will result in criminals with a purse full of money to buy their way out of justice, defeating the very purpose of criminal proceedings. (Para 21, 23, 25, 26) Rajendra Bhagwanji Umraniya v. State of Gujarat, 2024 LiveLaw (SC) 378

Section 357 – Victimology – Object – The idea of victim compensation – Theory of Victimology seeks to take into consideration the effect of the offence on the victim's family even though human life cannot be restored but then monetary compensation will at least provide some solace. The object of victim compensation is to rehabilitate those who have suffered any loss or injury by the offence which has been committed. The sole factor for deciding the compensation to be paid is the victim's loss or injury as a result of the offence and the convict's capacity to pay, and has nothing to do with the sentence that has been passed. (Para 22, 24) Rajendra Bhagwanji Umraniya v. State of Gujarat, 2024 LiveLaw (SC) 378

Constitution of India

Article 12 & 226 – Maintainability of Writ Petition – 'State' or 'Other Authority' – The respondent employer, Air India Limited (AIL) after its disinvestment ceased to be a State or its instrumentality within the meaning of Article 12 of the Constitution of India – The writ petitions were maintainable on the date of institution but whether they continued to be maintainable as on the date the same were finally heard? – Held, the issue about exercise of extra ordinary writ jurisdiction under Article 226 of the Constitution of India would arise only on the date when the writ petitions were taken up for consideration and decision. The subsequent event of disinvestment of the Government Company and its devolution into a private company would make the company immune from being subjected to writ jurisdiction under Article 226, even if the litigant had entered the portals of the Court while the employer was the Government. (Para 5, 32 & 38) R.S. Madireddy v. Union of India, 2024 LiveLaw (SC) 384

Article 12 & 226 – Writ Jurisdiction of High Court – The High Court has the power to issue the directions, orders or writs including writs in the nature of Habeas Corpus, Mandamus, Certiorari, Quo Warranto and Prohibition to any person or authority, including in appropriate cases, any Government within its territorial jurisdiction for the enforcement of rights conferred by Part-III of the Constitution of India and for any other purpose. Held, since, respondent employer (AIL) had been disinvested and had assumed the character of a private entity not performing any public function, the High Court could not have exercised the extraordinary writ jurisdiction to issue a writ to such private entity. (Para 34 & 38) R.S. Madireddy v. Union of India, 2024 LiveLaw (SC) 384

Article 21 – Right to health – The fundamental right to health encompasses the right of a consumer to be made aware of the quality of products being offered for sale by manufacturers, service providers, advertisers and advertising agencies. (Para 23) Indian Medical Association v. Union of India, 2024 LiveLaw (SC) 381

Article 22(1) and Unlawful Activities (Prevention) Act, 1967 (UAPA); Section 43B (1) – The proceedings of arrest and the police custody remand of appellant is questioned – On grounds that mandator requirement to communicate the grounds of arrest or the grounds of detention in writing to a person arrested is not provided – The arrest memo nowhere conveys the grounds on which the accused was being arrested. Keeping the accused in police custody without informing him the grounds on which he has been arrested; deprives the accused of the opportunity to avail services of the legal practitioner of his choice to oppose the prayer for police custody remand and seek bail. Held, the copy of the remand application in the purported exercise of communication of the grounds of arrest in writing was not provided to the accused appellant or his counsel before passing of the order of remand which vitiates the arrest and subsequent remand of the appellant. Further held, the mere fact that a charge sheet has been filed in the matter, would not validate the illegality and the unconstitutionality committed at the time of arresting the accused and the grant of initial police custody remand to the accused. The arrest of the appellant followed by remand order are hereby declared to be invalid in the eyes of law and are quashed and set aside. Hence, the appellant is entitled to a direction for release from custody. (Para 48, 50 & 51) Prabir Purkayastha v. State, 2024 LiveLaw (SC) 376

Article 21 & 22(1) & 22 (5) – Mandatory to inform' grounds of arrest' – The requirement to communicate the grounds of arrest or the grounds of detention in writing to a person arrested in connection with an offence or a person placed under preventive detention as provided under Articles 22(1) and 22(5) of the Constitution of India is sacrosanct and cannot be breached under any situation. Noncompliance of this constitutional requirement and statutory mandate would lead to the custody or the detention being rendered illegal, as the case may be. (Para 30) Prabir Purkayastha v. State, 2024 LiveLaw (SC) 376

Article 141 – Held, directions of the court shall be treated as the law under Article 141 of the Constitution of India. (Para 24) Indian Medical Association v. Union of India, 2024 LiveLaw (SC) 381

Article 226 – Civil Suit filed to declare clause 8 of Notice Inviting Tender (NIT) arbitrary – Clause 8 of the NIT mandated deposit of five post-dated cheques and bank guarantee to secure the payment of balance auction amount – Held, once the respondent-writ petitioner had participated in the tender process being fully conscious of the terms and conditions of the auction notice, he was estopped from taking a U-turn so as to question the legality or validity of the terms and conditions of the auction notice. By dragging the matter to litigation, the respondent himself was responsible for the delay occasioned in issuance of the work order which deprived him of the opportunity to work for the entire period of 365 days. The impugned order granting payment of pro-rata auction amount for the 33 days, that he has worked less than the contract period, is ex-facie illegal and without jurisdiction. Hence, the same is quashed and set aside. (Para 21 & 24) Municipal Committee Katra v. Ashwani Kumar, 2024 LiveLaw (SC) 373

Article 226 – Claim of damages in Writ Petition – Held, such relief is not subject matter of extra ordinary writ jurisdiction of the High Court under Article 226 of the Constitution of India. Law is well settled that disputes arising out of purely contractual obligations cannot be entertained by the High Court in exercise of the extra ordinary writ jurisdiction. Hence, the High Court ought to have relegated the writ petitioner (respondent herein) to the competent Court for claiming damages. (Para 22 & 23) Municipal Committee Katra v. Ashwani Kumar, 2024 LiveLaw (SC) 373

Article 226 – Writ petition – Petition rejected by High Court on grounds of delay – Held, delay and laches cannot be raised in a case of a continuing cause of action or if the circumstances shock the judicial conscience of the court. The condition of delay is a matter of judicial discretion, which must be exercised judiciously and reasonably in the facts and circumstances of the case. It would depend upon the breach of fundamental rights, and the remedy claimed, and when and how the delay arose. There is no period of limitation prescribed for the courts to exercise their constitutional jurisdiction to do substantial justice. Hence, impugned order of High Court is set aside and the matter is remitted to the High Court for fresh consideration. (Para 25) Dharnidhar Mishra v. State of Bihar, 2024 LiveLaw (SC) 380

Article 227 – Jurisdiction of High Court to interfere with order of trial court – Held, the High court could not have interfered with the order of the trial Court, unless found the view taken by the learned trial Judge was perverse or impossible. (Para 19) P. Seshareddy v. State of Karnataka, 2024 LiveLaw (SC) 379

Article 300A – Right to property – The right to property ceased to be a fundamental right by the Constitution (Forty-Fourth Amendment) Act, 1978, however, it continued to be a human right in a welfare State, and a constitutional right under Article 300-A of the Constitution. Article 300-A provides that the State cannot dispossess a citizen of his property except in accordance with the procedure established by law. The obligation to pay compensation, though not expressly included in Article 300-A, can be inferred in that Article. (Para 18) Dharnidhar Mishra v. State of Bihar, 2024 LiveLaw (SC) 380

The decision of the Supreme Court enunciating a principle of law is applicable to all cases irrespective of the stage of pendency thereof because it is assumed that what is enunciated by the Supreme Court is, in fact, the law from inception. (Para 16) Bhumikaben N. Modi v. Life Insurance Corporation of India, 2024 LiveLaw (SC) 365

Article 300A – Sub-rights to Right to property – The seven sub-rights or strands constituting the right to property. These are: i) duty of the State to inform the person that it intends to acquire his property – the right to notice, ii) the duty of the State to hear objections to the acquisition – the right to be heard, iii) the duty of the State to inform the person of its decision to acquire – the right to a reasoned decision, iv) the duty of the State to demonstrate that the acquisition is for public purpose – the duty to acquire only for public purpose, v) the duty of the State to restitute and rehabilitate – the right of restitution or fair compensation, vi) the duty of the State to conduct the process of acquisition efficiently and within prescribed timelines of the proceedings – the right to an efficient and expeditious process, and vii) final conclusion of the proceedings leading to vesting – the right of conclusion. Held, the larger right to property is seen as comprising intersecting sub-rights, each with a distinct character but interconnected to constitute the whole. The sub-rights weave themselves into each other, and as a consequence, State action or the legislation that results in the deprivation of private property must be measured against this constitutional net as a whole, and not just one or many of its strands. Further held, noncompliance of these will amount to violation of the right, being without the authority of law. These sub-rights of procedure have been synchronously incorporated in laws concerning compulsory acquisition and are also recognised by our constitutional courts while reviewing administrative actions for compulsory acquisition of private property. (Para 26, 28 & 29) Kolkata Municipal Corporation v. Bimal Kumar Shah, 2024 LiveLaw (SC) 382

Article 300A – The Right to notice – A prior notice informing the bearer of the right that the State intends to deprive them of the right to property is a right in itself; a linear extension of the right to know embedded in Article 19(1)(a). The Constitution does not contemplate acquisition by ambush. The notice to acquire must be clear, cogent and meaningful. (Para 30.1) Kolkata Municipal Corporation v. Bimal Kumar Shah, 2024 LiveLaw (SC) 382

Article 300A – The Right to be heard – It is the right of the property-bearer to communicate his objections and concerns to the authority acquiring the property. This right to be heard against the proposed acquisition must be meaningful and not a sham. (Para 30.2) Kolkata Municipal Corporation v. Bimal Kumar Shah, 2024 LiveLaw (SC) 382

Article 300A – The Right to a reasoned decision – It is incumbent upon the authority to take an informed decision and communicate the same to the objector. The declaration is mandatory, failing which, the acquisition proceedings will cease to have effect. (Para 30.3) Kolkata Municipal Corporation v. Bimal Kumar Shah, 2024 LiveLaw (SC) 382

Article 300A – The Duty to acquire only for public purpose – The acquisition must be for a public purpose is inherent and an important fetter on the discretion of the authorities to acquire. Further, the decision of compulsory acquisition of land is subject to judicial review and the Court will examine and determine whether the acquisition is related to public purpose. If the court arrives at a conclusion that that there is no public purpose involved in the acquisition, the entire process can be set-aside. (Para 30.4) Kolkata Municipal Corporation v. Bimal Kumar Shah, 2024 LiveLaw (SC) 382

Article 300A – The Right of restitution or fair compensation – A person's right to hold and enjoy property is an integral part to the constitutional right under Article 300A. Deprivation or extinguishment of that right is permissible only upon restitution, be it in the form of monetary compensation, rehabilitation or other similar means. Compensation has always been considered to be an integral part of the process of acquisition. Fair and reasonable compensation is the sine qua non for any acquisition process. (Para 30.5) Kolkata Municipal Corporation v. Bimal Kumar Shah, 2024 LiveLaw (SC) 382

Article 300A – The Right to an efficient and expeditious process – It is necessary for the administration to be efficient in concluding the process and within a reasonable time. This obligation must necessarily form part of Article 300A. (Para 30.6) Kolkata Municipal Corporation v. Bimal Kumar Shah, 2024 LiveLaw (SC) 382

Article 300A – The Right of conclusion – The culmination of an acquisition process is not in the payment of compensation, but also in taking over the actual physical possession of the land. If possession is not taken, acquisition is not complete. With the taking over of actual possession after the normal procedures of acquisition, the private holding is divested and the right, title and interest in the property, along-with possession is vested in the State. The obligation to conclude and complete the process of acquisition is also part of Article 300A. (Para 30.7) Kolkata Municipal Corporation v. Bimal Kumar Shah, 2024 LiveLaw (SC) 382

Consumer Protection Act, 1986

Contract – Acceptance of the policy by the insurer – The First Premium Receipt would justify drawing of presumption of acceptance of the policy – Held, all the circumstances discussed above justify the conclusion of acceptance of the proposal prior to the death of 'the deceased'. Held, no material irregularity or illegality could be found in the conclusions drawn with regard to the acceptance of proposal by the District Forum which was confirmed by the State Commission. There was absolutely no reason for NCDRC to upturn the concurrent orders and to order for the dismissal of the complaint. Hence, appeal is allowed. (Para 25, 26 & 27) Bhumikaben N. Modi v. Life Insurance Corporation of India, 2024 LiveLaw (SC) 365

2(1)(b) – Complainant – To file a complaint, one must be a complainant and for one to be a complainant, he must be a consumer. If a person fails to come within the definition of a consumer, he cannot be a complainant and therefore, such person cannot file a complaint under the Act. (Para 17) Shriram Chits (India) Pvt. Ltd. v. Raghachand Associates, 2024 LiveLaw (SC) 368

Section 2(7) – Onus of proof – The onus of proving the first part i.e. that the person had bought goods/availed services for a consideration, rests on the complainant himself. The onus of proving that the person falls within the carve out, i.e. to exclude the complainants from availing benefits under the Act, must necessarily rest on the service provider and not the complainant. Only if, the service provider discharges its onus of showing that the service was availed, in fact for a commercial purpose, does the onus shift back to the complainant to bring its case within the third part, i.e. the Explanation (a) to Section 2(7) – to show that the service was obtained exclusively for the purpose of earning its livelihood by means of self-employment. This is in sync with the general principle embodied in Section 101 and 102 of the Evidence Act that 'one who pleads must prove'. Since it is always the service provider who pleads that the service was obtained for a commercial purpose, the onus of proving the same would have to be borne by it. Hence, the onus to prove that the service was obtained for a commercial purpose is on the service provider. (Para 20, 21 & 22) Shriram Chits (India) Pvt. Ltd. v. Raghachand Associates, 2024 LiveLaw (SC) 368

Section 2(7)(i) – Consumer – Maintainability of complaint in question – Whether the service obtained by the complainant was for a commercial purpose? – Held, the OP has merely pleaded in its version that the complainant does not satisfy the definition of consumer since the service was obtained for a commercial purpose. No evidence has been led to probabilise its case other than merely restating its claim on affidavit. It is now well too settled that a plea without proof and proof without plea is no evidence in the eyes of law. Held, not addressing merits of the issue as three forums have concurred in their finding that there was proved deficiency of service. Hence, appeal is dismissed. (Para 18, 23 & 24) Shriram Chits (India) Pvt. Ltd. v. Raghachand Associates, 2024 LiveLaw (SC) 368

Section 21 (b) – Power of National Consumer Disputes Redressal Commission (NCDRC) to reverse order in exercise of revisional jurisdiction – Held, in the absence of anything suggesting that the State Commission had acted in the exercise of its jurisdiction illegally or with materially irregularity, interference with an order of the State Commission in exercise of the limited revisional power under Section 21 (b) of the Act, by NCDRC, is without rhyme or reason and cannot be sustained. (Para 27) Bhumikaben N. Modi v. Life Insurance Corporation of India, 2024 LiveLaw (SC) 365

Contract

Contract Act, 1872; Section 202 – Contract of agency – Transfer of power of attorney – Right to continue proceedings – The original contractor had assigned all the rights and liabilities arising out of the said contract in favour of the appellant via an assignment deed. Held, Since the appellant had an interest in the said contract, he was is entitled to continue with the proceedings in spite of the death of the original contractor. Held, the learned trial Judge rightly construing this position, allowed the application of the appellant. Further held, the learned Single Judge failed to take into consideration that on account of the assignment deed, an interest accrued in the said contract in favour of the appellant. Hence, the impugned order is set aside. (Para 15, 16, 18 & 22) P. Seshareddy v. State of Karnataka, 2024 LiveLaw (SC) 379

Life insurance – Object – To ensure absolute security to the policy-holder in the matter of his life insurance protection. (Para 28) Bhumikaben N. Modi v. Life Insurance Corporation of India, 2024 LiveLaw (SC) 365

Criminal Law

Bail order is challenged – Held, respondent having been enlarged on bail conditionally and the conditions so stipulated having not been violated – There are no overwhelming material on record to set aside the order granting bail which outweighs the liberty granted by the High Court. Further held, the appellant-state having not sought for cancellation of the bail would be a prime reason for the court to not entertain the appeal. Hence, interference in impugned bail order is not warranted. (Para 16, 17) Union of India v. Mrityunjay Kumar Singh, 2024 LiveLaw (SC) 367

Grant of interim bail/release – Interim bail is granted as per facts of each case – While examining the question of grant of interim bail/release, the courts always take into consideration the peculiarities associated with the person in question and the surrounding circumstances and to ignore the same would be iniquitous and wrong – Further held, once the matter is sub-judice and the questions relating to legality of arrest are under consideration, a more libertarian view is justified, in the background that the 18th Lok Sabha General Elections are being held – The 18th Lok Sabha General Elections is an intervening factor which has prompted the court to consider the interim bail application of the appellant – The appellant is directed to be released on interim bail. (Para 8, 14 & 15) Arvind Kejriwal v. Directorate of Enforcement, 2024 LiveLaw (SC) 363

Election

General Elections supply the vis viva to a democracy – Held, grant of interim bail/release on account of general election would not be placing the politicians in a benefice position compared to ordinary citizens of this country. (Para 8) Arvind Kejriwal v. Directorate of Enforcement, 2024 LiveLaw (SC) 363

Environment Law

Environmental regulations is to ensure that developmental projects, are undertaken in a manner that minimizes adverse ecological impacts and safeguards the well-being of both the environment and local communities – Paragraph 2 of the notification dated 14 September 2006 requires prior Environmental Clearance “before any construction work or preparation of land by the project management is carried out except for the securing of land”. Held, the authorities, have acted in violation of the provisions contained in Para 2 of the notification by carrying out an extensive clearance at the site even in the absence of an Environmental Clearance. Hence, impugned dismissal order of National Green Tribunal is set aside and appeal is allowed. (Para 15, 19 & 25) Tapas Guha v Union of India, 2024 LiveLaw (SC) 370

Policy decision in conflict with environmental regulations – The decision on whether an airport is situated at a particular place is a matter of policy. However, when the law prescribes specific norms for carrying out activities requiring an Environmental Clearance, those provisions have to be strictly complied with. The decision to establish an airport must be executed within the confines of legal frameworks designed to protect the environment and ensure responsible resource management. Failure to adhere to these norms not only undermines the integrity of environmental governance but also risks long-term environmental degradation and societal discord. (Para 21) Tapas Guha v Union of India, 2024 LiveLaw (SC) 370

Hindu Succession Act, 1956

Section 14(1) – Succession rights of the widow on the joint Hindu family property – The Hindu female must not only be possessed of the property but she must have acquired the property and such acquisition must be either by way of inheritance or devise, or at a partition or “in lieu of maintenance or arrears of maintenance” or by gift or be her own skill or exertion, or by purchase or by prescription. Held, it becomes clear that the widow was never in possession of the suit property as the civil suit was filed by her claiming relief of title and possession was dismissed by civil Court and was never challenged. Since, Smt. The widow was never in possession of the suit property, the Revenue suit for partition claiming absolute ownership under Section 14(1) of the HSA could not be maintained by her adopted son, by virtue of inheritance. (Patra 24, 25 & 26) Mukatlal v. Kailash Chand, 2024 LiveLaw (SC) 388

Legal Maxim

'Nullus commodum capere potest de injuria sua propria' – It means that no man can take advantage of his own wrong. He who prevents a thing from being done shall not avail himself of the non-performance he has occasioned. A wrong doer ought not to be permitted to make profit out of his own wrong. (Para 18 & 19) Municipal Committee Katra v. Ashwani Kumar, 2024 LiveLaw (SC) 373

Municipal Corporation

Kolkata Municipal Corporation Act, 1980 – Section 352 – Procedure of acquisition is mandatory to be followed – Section 352 is bereft of any procedure whatsoever before compulsorily acquiring private property. Held, compulsory acquisition will be unconstitutional if proper procedure is not established or followed before depriving a person of their right to property. The constitutional right to property comprises of seven sub-rights or procedures such as the right to notice, hearing, reasons for the decision, to acquire only for public purpose, fair compensation, efficient conduct of the procedure within timelines and finally the conclusion. Held, as Section 352 does not provide for these sub-rights or procedures, it can never be a valid power of acquisition. Hence, acquisition of land under Section 352 is rejected. (Para 2 & 24) Kolkata Municipal Corporation v. Bimal Kumar Shah, 2024 LiveLaw (SC) 382

Kolkata Municipal Corporation Act, 1980 – Section 352 & 537 – Power of acquisition – Section 352 empowers the Municipal Commissioner to identify the land required for the purpose of opening of public street, square, park, etc. and under Section 537, the Municipal Commissioner has to apply to the Government to compulsorily acquire the land. Upon such an application, the Government may, in its own discretion, order proceedings to be taken for acquiring the land. Held, section 352 is, not the power of acquisition. Hence, the submission that Section 352 enables the Municipal Commissioner to acquire land is rejected. The appellant-Corporation acquiring land under Section 352 acted in blatant violation of statutory provisions. (Para 22) Kolkata Municipal Corporation v. Bimal Kumar Shah, 2024 LiveLaw (SC) 382

Kolkata Municipal Corporation Act, 1980 – Section 363 – Section 363 relates to payment of compensation upon an agreement and not for compulsory acquisition. (Para 23) Kolkata Municipal Corporation v. Bimal Kumar Shah, 2024 LiveLaw (SC) 382

Penal Code, 1860

Section 34 & 494 – Charged with common intention to commit offence of Bigamy – Held, in order to bring home the said charge, the complainant would be required to prima facie prove not only the presence of the accused persons, but the overt act or omission of the accused persons in the second marriage ceremony and also establish that such accused were aware about the subsisting first marriage. Held, mere presence in the marriage is not enough to establish common intention to commit offence of Bigamy. Further, there is no allegation that the accused, acted as witnesses to the second marriage having knowledge of the first marriage. Hence, the charge is not established. (Para 17 & 18) S. Nitheen v. State of Kerala, 2024 LiveLaw (SC) 385

Section 494 and Criminal procedure Code, 9173; Section 216 – Bigamy – Charges framed against accused for offence of Bigamy – Held, order framing charge is erroneous on the face of the record because no person other than the spouse to the second marriage could have been charged for the offence punishable under Section 494 IPC simplicitor. Defect in framing of charge is curable and can be altered at any stage as per the provisions of Section 216 CrPC. Further held, allowing the proceedings of the criminal case to be continued against the appellants with defect in charges framed, would tantamount to gross illegality and abuse of the process of Court. Hence, all subsequent proceedings sought to be taken against the appellants are quashed and set aside. (Para 16, 21) S. Nitheen v. State of Kerala, 2024 LiveLaw (SC) 385

Representation of Peoples Act, 1951

Code of Civil procedure, 1908; Order VIII Rule 9 and Representation of Peoples Act, 1951; Section 86(5) – Replication of pleading – Discretionary jurisdiction of High court to grant leave to file replication – Leave granted to the election petitioner to file a replication in answer to the new facts asserted in the written statement is challenged – Replication, though not a pleading as per Rule 1 of Order VI, is permissible with the leave of the Court under Order VIII Rule 9 of the CPC, which gives a right to file a reply in defence to set-off or counter-claim set up in the written statement. Section 86(5) of the 1951 Act provides that the High Court may allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may, in its opinion, be necessary for ensuring a fair and effective trial of the petition, but it shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition. Further, while considering grant of leave, the Court must bear in mind that, — (a) a replication is not needed to merely traverse facts pleaded in the written statement; (b) a replication is not a substitute for an amendment; and (c) a new cause of action or plea inconsistent with the plea taken in original petition/plaint is not to be permitted in the replication. Held, the non-disclosure of bank accounts, alleged in the election petition, was sought to be explained by the returned candidate in his written statement. The replication only sought explain the averments made in the written statement and does not seek to incorporate any new material facts or a new cause of action to question the election. Hence, leave to file replication was justified and well within the discretionary jurisdiction of the High Court. (Para 16, 17, 18 & 20) Sheikh Noorul Hassan v. Nahakpam Indrajit Singh, 2024 LiveLaw (SC) 362

Code of Civil procedure, 1908 and Representation of peoples Act, 1951; Section 87 – Jurisdiction of High Court in an election petition – An election petition is to be tried, as nearly as may be, in accordance with the procedure applicable under the CPC to the trial of suits subject to the provisions of the 1951 Act and of any rules made thereunder. The High Court, acting as an Election Tribunal, subject to the provisions of the 1951 Act and the rules made thereunder, is vested with all such powers as are vested in a civil court under the CPC. Hence, in exercise of its powers under Order VIII Rule 9 of the CPC, the High Court is empowered to grant leave to an election petitioner to file a replication. (Para 15 & 20) Sheikh Noorul Hassan v. Nahakpam Indrajit Singh, 2024 LiveLaw (SC) 362

Service Law

Civil Services (House Rent Allowance and City Compensation Allowance) Rules, 1992 (Jammu and Kashmir) – Rule 6(h)(i) and 6(h)(ii) – Entitlement to claim House Rent Allowance (HRA) – Held, the appellant being a Government employee, could not have claimed HRA while sharing rent free accommodation allotted to his father, a retired Government servant. Hence, appeal is dismissed. (Para 9, 10) R.K. Munshi v. Union Territory of Jammu & Kashmir, 2024 LiveLaw (SC) 364

Civil Services (House Rent Allowance and City Compensation Allowance) Rules, 1992 (Jammu and Kashmir) – Rule 6(h)(iv) – Claim of HRA after demitting office – Appellant's Retired Father Could Not Claim HRA Upon Suppernuation from service. Held, Rule 6(h)(iv) has no application in present case. (Para 9) R.K. Munshi v. Union Territory of Jammu & Kashmir, 2024 LiveLaw (SC) 364

Town Planning and Urban Development

Town Planning and Urban Development Act, 1976 (Gujarat); Section 52 – Allotment of land in question – The plaintiffs, being well aware of the fact that Final Plot allotted to them under the second varied Town Planning Scheme was of lesser area, accepted the same without any protest and without agitating a right to a larger area in the light of the initial allotment – Held, having accepted the plot allotted to them upon variation of the scheme without demur or protest, the plaintiffs cannot now seek to reopen the negligence and delay, if any, on the part of the Corporation prior to such variation. (Para 34 & 39) Mrugendra Indravadan Mehta v. Ahmedabad Municipal Corporation, 2024 LiveLaw (SC) 369

Town Planning and Urban Development Act, 1976 (Gujarat); Section 52 – Compensation paid for land is challenged to be inadequate – Held, the conduct of the plaintiffs in depositing the compensation amount thereafter, imply receipt of the compensation amount for the shortfall area in allotted land. This further, foreclosed their right, to either challenge the allotment of a plot of lesser area or to seek more compensation. Further held, the voluntary act of depositing the compensation amount to the trial court precludes them from contending, that the said compensation was never paid to them. (Para 36 & 39) Mrugendra Indravadan Mehta v. Ahmedabad Municipal Corporation, 2024 LiveLaw (SC) 369

Two-Finger Test

Eradication of the "Two-Finger Test" in rape investigations - The practice of conducting the "two-finger test" in determining the sexual habituation of rape victims despite its prohibition by the Supreme Court - The Court questioned the State on the measures taken to eliminate this regressive and invasive practice. Sunshine Kharpan v. State of Meghalaya, 2024 LiveLaw (SC) 377

Unlawful Activities(Prevention) Act, 1967

Section 43B(1) and Prevention of Money Laundering Act (PMLA), 2002; Section 19(1) – Interpretation of the phrase 'inform him of the grounds for such arrest' – Held, the provision regarding the communication of the grounds of arrest to a person arrested contained in Section 43B(1) of the UAPA is verbatim the same as that in Section 19(1) of the PMLA – It is a statutory mandate requiring the arresting officer to inform the grounds of arrest to the person arrested under Section 43B(1) of the UAPA at the earliest. Both the provisions find their source in the constitutional safeguard provided under Article 22(1) of the Constitution of India and the requirement to communicate the grounds of arrest is the same in both the statutes. Hence, applying the golden rules of interpretation, the provisions which lay down a very important constitutional safeguard to a person arrested on charges of committing an offence either under the PMLA or under the UAPA, have to be uniformly construed and applied. (Para 17, 18, 22 & 34) Prabir Purkayastha v. State, 2024 LiveLaw (SC) 376

Valuation

Valuation of land by the state – Held, it is not clear on what basis the valuation has been arrived at; at what point of time this amount came to be assessed; and the basis for the assessment of such amount. The High Court proceeded on the footing that the valuation has been assessed and it is now for the appellant to file an application to get the amount disbursed. Further held, the High Court should also have asked the State the basis of the determination of the amount towards compensation and the approach of the High Court while disposing of the appeal is disappointing. The impugned order of High Court is set aside. (Para 13 & 15) Dharnidhar Mishra v. State of Bihar, 2024 LiveLaw (SC) 380